LIST OF WITNESSES.

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 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 inconsistent with right principle, and indeed, so far as the pannel can discover, is altogether unprecedented; it is totally 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 follows:

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 committed 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 not warranted, so far as can be ascertained, even by a single precedent.

Mr. Patrick Robertson then addressed the Court in support 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 proposition, 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 that he had any accomplices. 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 felonious 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 confine 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 murder, alleged to have been committed in the month of October, in a place called Tanner’s Close, in Wester Portsburgh. In this charge also William Burke is the only person accused of that offence, and the intent laid is the same as in the former instance. Then there was a charge of a third murder, 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, without any connection whatever between them: and these charges were laid without any aggravation. Then five different declarations 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 different 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 entitled, but bound to exercise. But the first and most material 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 postponing 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 considering this, it would be observed that it was not charged that there was any natural connection between the crimes committed. 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 connection between them. But the intent was not laid absolutely 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 unknown.” 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 Criminal 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 prejudice him. Each specific offence, it might be said, would require to be supported by its own specific evidence; but it was impossible 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 evidence 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 existed 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 evidence as not to admit against the one evidence which was calculated to affect the other; and by thus mixing up and massing together the whole into an unnecessary accumulation 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 individual, accused of one offence, is mixed up with another, accused of two, with which she is not alleged to have had any concern. 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‘Dougal’s 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 operation; 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 produce no evidence to instruct the fact. He put this as an illustration. So far as the female prisoner was concerned it would be fatal.

But was this a legal proceeding? If there be a prejudice existing, the prisoner is entitled to the fairest possible defence. The more atrocious the offence, the more guarded and cautious 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 instances of three persons slain at the same time, as in the Aberdeen riots, by a discharge of musketry, and in the case where a whole family was poisoned: these, however, as Mr. Hume 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 alleged 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 the principle 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 Attachiamenta, 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 several summondses; and yet seeing crimes are of so great consequence to the defender, and are of so great intricacy, it appears most unreasonable that a defender should be burthened with more than one defence at once; and it appears that accumulation of crimes is intended, either to læse 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 læse 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 those which are of one name 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 unconnected crimes. The first of these, he argued, had no relation to the present case, because it did not include murder. All the cases referred to were cases of housebreaking and theft; and though the former was a capital offence, yet it was a very different 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 accumulation. They were parts of the same foul and atrocious proceeding, and they had a natural and necessary dependence. But in the present case there was no natural dependence, and not even an allegation that the prisoners were connected.

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 instanced that of Walter Buchanan, who was accused of ten different 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 several of the charges. In regard to accumulation of parties, Mr. Hume put a case of several persons being called to answer in one libel for the same fact; but then, observe the remedy. “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 instance,) the Court may and will separate the trials of the several 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 illustrative 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 prosecutor 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 Lord Advocate replied at some length. After complimenting 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 altogether different. His first objection was to bringing two prisoners to trial in the same indictment, and his second to charging three different crimes in that indictment. He would deal very shortly 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, adducing 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 unheard 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 aggravation. These murders were detached, as having taken place within the last six months; but they were all committed in Edinburgh, and all were charged as having been perpetrated with the same intent, which however is no aggravation. Murder, 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 description—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 combined in one indictment; but the present was a case unprecedented in the annals of this or of any other civilized country. There were numerous examples, however, where different charges were combined in the same libel. The passage quoted from Sir George Mackenzie did not apply to the case before the Court. It referred to a case of a nature totally different. He then quoted Hume II. 166, and maintained, upon his authority, that the crimes charged being all of the same name and species, might properly be included in the same indictment. It would indeed be dreadful 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 complained of. He then referred to the case of Nairne and Ogilvie. 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 Circuit in 1823 on four separate acts; of Donaldson Buchanan also tried there for stouthrief, 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 Aberdeen 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 completely 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 were convinced that he had prepared and brought forward the case in the manner which he conceived least likely to prejudice the prisoners or to distract them in their defence. But, on the other hand, he could with equal truth and sincerity assure his Lordship, that the objection now raised had been taken from a firm conviction that the sustaining of it was necessary 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 unprecedented combination? The Learned Lord had intimated an intention to desert the diet pro loco et tempore against the pannel M‘Dougal. But the question still remained whether the interests of the male prisoner would not be dreadfully prejudiced 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 indictment 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 indictment charging three distinct murders: he averred that there were separate and unconnected acts of this crime; and he assumed 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 connection 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 justice 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. Suppose evidence were brought to prove the first, but totally failed, 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 combination of such charges, but unless your Lordship interfered ex parte judicis, the result would be what he described. The prejudice arose from this talis qualis 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 cumulo, 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 receive, 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 said, 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 same genus, for this might be said of all the murders that ever had been or ever would be committed; and on the face of the indictment they were all different. In the major proposition no aggravation 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 different 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 wilful 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 punishment of the law would follow a conviction. The evil of an indictment so framed as the present was to produce an illegitimate 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 competency of such a charge. To these principles in the abstract, no exception could be taken. Now, the Court would consider 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 postponing 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 together separate charges in the same indictment, was in his challenges 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 indictments 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 perfectly unexceptionable in one case and liable to the most serious 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 synonymous 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 læse the fame of the defender, or to distract him in his defence.” Now what did the Lord Advocate say in answer to this? He referred to a passage in Mr. Baron 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 pannel as one who is an habitual and irreclaimable offender in this sort,” (vol. ii. p. 166.) And accordingly the instances which he gave were of the crimes of theft and housebreaking; crimes which were susceptible of being aggravated by habit and repute, and of which the punishment 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 manifold changes is likely to prove oppressive, either to the witnesses, 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 whatsoever?” But even these did not bear on the present case; and none adverse to the principle had occurred since the year 1784. Even the case of 1784 itself was not opposed to the principle. There, there was connection. The case of Surridge and Dempster was mentioned as a case of two murders, as a case where more than one murder was charged in the indictment; but these were clearly partes ejusdem negotii; they were committed in immediate sequence and in furtherance of the same “foul and atrocious design.” It was quite plain, therefore, that the cases quoted did not apply; that they had no bearing whatever on the present case, where three different and unconnected murders were charged against the same individual, and where another party was mixed up with him in one of the alleged crimes. Were they not entitled, then, to ask their Lordships, in the exercise of a sound discretion, (which it was not denied the Court possessed) “to divide and parcel out” the charges in this indictment, and to find it incompetent to go to trial upon it as it presently stood? The Learned Counsel then adverted to the state of the law of England on this subject, commenting on the passage quoted by Mr. Robertson from the work of Chitty, and concluded by observing that this was in all respects a most serious case, and deserved the utmost attention of the Court. No instance of three murders charged in one indictment had happened in his time; many instances had indeed occurred in former times; yet it had never been the practice to try the charges in cumulo. But the more anomalous and unprecedented the case, the more necessary was it to the ends of justice, and the more important to the law, that it should be proceeded in with the utmost caution.

Their Lordships then delivered their opinions on the objection which had been raised and so ably argued by the prisoner’s Counsel.

Lord Pitmilly.—The Court were peculiarly circumstanced in being called upon to give an opinion on an indictment in a case, part of which must unquestionably go to trial. He was quite clear that one of the charges must undergo an investigation; that the trial to that extent must proceed. But Counsel were by no means precluded from stating the objection they had brought forward, and which, appearing to them in the light it did, it became their duty to press upon the attention of the Court. This accordingly they had done with equal zeal and ability, in a manner which did honour to themselves, and reflected credit on the Bar of Scotland. But it was the duty of the Court to be calm and guarded; to express their opinions in a dignified and dispassionate manner; and to avoid any thing which was either calculated to unsettle the established principles of that law or to form a bad precedent for the future. He agreed that there were two different questions before the Court; the first of which was, whether Helen M‘Dougal ought to have been included in the indictment. And on that point he had no doubt of the Prosecutor’s right so to include her. He approved of what the Lord Advocate had done, and he had no hesitation in saying, that the trial should now proceed. The other question was of a very different nature; namely, whether it was competent, and also whether it was proper and fitting, that Burke should now go to trial upon an indictment, charging three murders, or should be tried on one or other of these charges. Of the competency he had no doubt whatever. His Lordship was much struck with the indictment when he first saw it, and he felt it to be his duty, as it is always the duty of the Court on such occasions, to inform his mind in regard to the principle on which it had been framed. He went to the authorities on the subject, and after a careful examination of them he had no doubt of the competency. When he looked at the cases of Beaumont and Gillespie, particularly the latter, where nine separate acts of forgery were charged, he could not have the smallest doubt as to the competency of including these several charges in the same indictment. Our practice on this point was too firmly fixed to admit of any question, that one individual may be charged with several crimes of the same nature, and committed at different times. The English cases referred to he put altogether out of view, because this was not a new point, now raised for the first time, and to be settled by a reference to principle or analogy, but a matter fixed by our own practice, and not again to be brought into dispute. He was therefore quite clear as to the competency. But where it was a question of discretion merely, and where that discretion, as in the present case, was strongly appealed to, the Court would interfere, because it was their bounden and sacred duty to prevent a prisoner from suffering prejudice in his defence. The present prisoners, by their highly respectable Counsel, declared that they would suffer prejudice if they were put upon their trial on all the charges, and it was not for the Court to say whether that might or might not be the case. Three consecutive trials might or might not be beneficial to the prisoner. In his opinion they were more advantageous to the Prosecutor. By this means he learned how to conduct his case; and if he saw a link awanting in one trial, he might endeavour, by means of additional evidence, to supply it in the next. It did appear to him, therefore, that what the pannels asked for by the mouths of their counsel, was calculated to do them more prejudice than submitting to go to trial upon the indictment as it now stood. But they had doubtless been well and judiciously advised, and were prepared to take the consequences. He held, however, that the Prosecutor had done right in including both of them in the same indictment; and that by doing so he had taken the only and most effectual means in his power not to prejudice them either in preparing for their defence or on their trial. He well remembered a case in which the danger, disadvantage, and odium attending consecutive trials were strikingly exemplified. It happened in consequence of the Aberdeen riots, and the parties were brought to trial at the instance of a private prosecutor. His Lordship was counsel for the pannels, and they were acquitted. Not satisfied with this, however, the private prosecutor reared up a new indictment upon new grounds. And he could never forget the feeling which was excited, by this attempt to bring the parties acquitted to a second trial, in the Court, the Bar, and the country at large; there was one general cry of indignation against a proceeding so shameless and oppressive; the consequence of which was, that the private prosecutor became alarmed, and the attempt was quashed. This was the natural course of things. And, in general, it was lenity, and humanity, and justice, to include all such cases in the same indictment. In the present instance, no result such as that which took place in Aberdeen was to be feared. But the Court being clearly vested with a discretion, and the pannels having strongly appealed to that discretion, it was his opinion that the cases should be tried separately.

Lord Meadowbank entirely concurred in the views of Lord Pitmilly. The nature of this case and the impression it had produced upon the public were such, that it required the most careful and anxious consideration; but he was confident that the more thoroughly their Lordships were convinced of the existing state of excitement in the public mind concerning it, the greater would be their anxiety that the prisoners suffered no prejudice on their trial or in their defence. The question here was one of very great and general importance. But if it had been entertained on the question of competency, it would have shaken the whole system of our criminal procedure. Our practice of accumulating a number of charges in the same indictment had been steady and uniform. With respect to the earlier cases referred to, particularly that in 1696, he must say that he could not for his soul comprehend upon what grounds the counsel for the prisoner had attempted to invalidate their authority. The particular case referred to occurred after the Revolution, when the Judges were as great and eminent lawyers as ever sat in that Court. But in order to show the uniformity of the practice, he needed not go farther back than the case of Murdiston and Miller, where several acts, committed by different individuals in different counties, were put into the same indictment; yet not one iota of an objection was urged against the proceeding similar to what they had heard to-day. Our own practice, in cases of forgery, which was a capital crime, left no doubt upon the matter. Several acts of this description of crime were constantly charged in the same indictment.—In cases of robbery, it was not competent to libel aggravation. The Prosecutor was not admitted to libel habit and repute. That was now settled law. It had not been so formerly; and accordingly, when he had the honour to fill the same situation, which his learned friend (the Lord Advocate) now held, he had directed an indictment to be raised to try the point,—and the law was now settled. But it was competent to accumulate several acts in the same indictment, and to have it tried by the same evidence and before the same Jury. It was competent where there was several acts of robbery charged against different individuals; and there was one case of a father and a daughter, where the daughter was charged with two acts, and the father with all the three libelled. He was therefore of opinion that the Lord Advocate had done right in proceeding as he did. But the Court had a discretion; and to that discretion the prisoners had appealed. But having stated his opinion of that discretion, he deemed it right to say, that the Court was not answerable for the consequences. The prisoners had exercised their discretion, and he warned them to consider well the step they had taken. As to the Court they were bound to sit there and try the cases one after another.

Lord Mackenzie also agreed with his learned brothers as to the competency. In so far as discretion was concerned he likewise concurred, upon the statement made by the pannel and his counsel that he would suffer prejudice. He saw that the pannel was well and ably advised; and he could not take it upon him to allege that there was any thing absurd or unreasonable in the request which had been made.

Lord Justice Clerk.—The only question here was as to the competency of the charge against Burke: for the Lord Advocate had intimated his intention not to proceed at present against the woman. After listening attentively to all that had been said, after considering the authorities, and recollecting something of the practice of this Court, he thought the indictment framed in a legal and proper manner. Burke was not accused of one crime, but of three different acts of the same crime; and, therefore, he did not come within the reach of those cases referred to by Mr. Hume. If this indictment was a bad one, the Court had been guilty of a great dereliction of its duty in sustaining many indictments framed upon precisely the same principle. He recollected a case of several acts of robbery, a capital crime, and one of the four pleas of the Crown, included in the same indictment; and how could they distinguish between such a charge and that of murder, which was another of the pleas of the Crown? In fact, it was not now in the power of the Court to depart from the practice which had been so firmly established and so steadily followed. The Court, however, had a discretion, and where it was appealed to they would exercise it. The Court had even found an indictment irrelevant where it was strongly alleged by the pannel that he would suffer prejudice were he tried upon it in its actual shape.—Upon the responsibility of the respectable Counsel, who had stated that the present prisoners would suffer prejudice if they were tried upon the indictment before them as it now stood, he was of opinion that the Court should interpose in virtue of its discretion. But they ought to do so upon principle. They ought to find the libel relevant, and also to find it competent to proceed to the trial of the charges seriatim, leaving it to the option of the Prosecutor to say which of them he might choose to begin with.

This accordingly became the judgment of the Court. The objection was repelled, but in respect of the allegation that the pannel would suffer prejudice were he tried upon the indictment as it stood, find it competent to proceed with only one of the charges at a time, leaving it to the Lord Advocate to say which of them he thinks proper to begin with.

The Lord Advocate.—In consequence of the opinion of the Court I shall proceed with the last charge, which includes both the man and the woman. The objection in regard to the latter has now been completely removed.

The Dean of Faculty.—I beg to remind the learned Lord of his former statement, that he would desert the diet against the woman.

The Lord Advocate.—The case is now completely changed. My former statement was made upon the supposition that the trial as to Burke was to proceed upon all the three charges at once.

The Prisoners on being asked by the Lord Justice Clerk, if they were guilty or not guilty of the crimes charged in the third article of the Indictment, each answered “Not guilty.” The following Jury were then chosen.

First Witness called for the prosecution, was JAMES BRAIDWOOD, of the Fire Office Establishment, who being duly sworn.

Question. Was that plan made by you? A. It was.

Q. What plan is it? A. It is a plan of some houses in the West Port, to which I was conducted by an officer.

Q. Is the plan a correct one of the under ground houses? A. It is.

MARY STEWART Examined.

Q. Do you remember a person of the name of Campbell, coming to live at your house during last harvest? A. Yes, Sir, Michael Campbell.

Q. How long is it since he left your house? A. On the Monday before the fast day.

Q. Do you remember a woman coming to your house to enquire after him? A. Yes, Sir.

Q. By what name did she call herself? A. She called herself Madgy Campbell, and also Duffie, which she said was the name of her former husband.

Q. She came from Glasgow? A. Yes, Sir.

Q. Did she state she came in search of her son? A. Yes.

GROUND PLAN OF BURKE’S HOUSE

as Produced in Court.

Published by Thomas Ireland Jun.^r Edinburgh. T. Clerk Sc.

Q. What time did she leave your house? A. I came out of the Infirmary on Thursday, and she left me on Friday, the 31st October.

Q. Did she tell you where she was going? A. She said she was going to search for her son.

Q. Do you know a person of the name of Charles M‘Lauchlan?

A. Yes, Sir; he slept with the woman’s son.

Q. Have you ever seen that woman since? A. Not till I saw her at the Police Office.

Q. What hour did she leave your house? A. I think between 7 and 8 o’clock in the morning.

Q. Do you remember when you saw the woman’s body at the Police Office? A. Yes, sir; it was on Sunday, two days after.

Q. Could you recognize the body? A. Yes, Sir.

Q. What dress did she leave your house in? A. In an old dark printed gown, much patched, short sleeves, open before, sewed with white thread in the back; black bombazet petticoat, and red striped short-gown.

Q. Would you know these things? A. Yes, Sir.

[These articles were shown to witness, and she identified the old printed gown, and short dress.]

By the Court.—Q. Do you know what her age might be?

A. Between forty and fifty.

By Counsel.—Q. What size was she? A. She was a little broad set woman.

By the Court.—Q. When she stopt in your house, was she in good health? A. Yes, my Lord.

Q. Did you ever see her drunk? A. No, my Lord.

CHARLES M‘LAUCHLAN Examined.

Q. In the month of October last, did you reside in the house of Mrs Stewart in the Pleasance? A. Yes, Sir; along with one Michael Campbell.

Q. What time did he leave that house? A. About the end of October.

Q. Do you remember a woman coming to the house in October? A. Yes, Sir.

Q. When she came did Michael Campbell live at the house? A. Yes, Sir.

Q. What name did the woman go by? A. Mrs Campbell’s name was Marjory M‘Gonegal; Duffie was her second husband’s name.

Q. Had you ever seen her before? A. Yes, Sir; at home, in the County Donegal in Ireland.

Q. Did she remain some days at Stewart’s? A. Yes, Sir.

Q. What time did she leave? A. She went away on Friday the 31st October, between the hours of nine and ten in the morning.

Q. Did you go with her? A. Yes, Sir, as far as my own shop door at the foot of St Mary’s Wynd, where she shook hands with me. I asked her where she was going, and she told me she was leaving town.

Q. Did she appear in good health and sober? A. Yes, Sir, she appeared to be of sober habits.

Q. Did she come in search of her son? A. Yes, Sir.

Q. Do you know if she had any money? A. No.

Q. Did she complain of having none? A. I never heard her.

Q. Did she pay any thing for her lodgings at Stewart’s? A. Her son paid for them.

Q. Did she breakfast at Stewart’s that morning? A. No, Sir.

Q. Did you ever see her again in life? A. No, Sir.

Q. When did you see the body? A. I saw it at the Police office, on Sunday the 2d November.

Q. You knew it to be that of the woman Campbell?

A. Yes, Sir.

Q. Did she ever call herself Docherty? A. No, Sir.

WILLIAM NOBLE Examined.

Q. You are a shop-boy at Mr. Rymer’s, at Portsburgh?

A. Yes, Sir.

Q. Do you know the prisoner Burke by sight? A. Yes, Sir.

Q. Do you know a man of the name of Hare? A. Yes.

Q. What do you sell? A. Groceries.

Q. Do you recollect a body found in the West Port? A. I recollect a woman came to the door, and asked charity, on Friday 31st October. Q. Was Burke in the shop at the time? A. He was.

Q. Tell us what passed between Burke and the woman who asked charity? A. He asked her name, and she said it was Docherty.

Q. What did he say to that? A. He said she was a relation of his mother’s.

Q. Did Burke say what his mother’s name was? A. No.

Q. Did Burke and the woman seem acquainted? A. Don’t recollect Q. What happened after that? A. Burke took her away with him, and said, he would give her her breakfast. This was on the Friday morning.

Q. When did you see Burke after? A. He came back on Saturday, and bought a box.

Q. What sort of a box was it? A. A tea-box.

He was shewn a tea-chest, and asked, if that was it? A. Could not say. It was like it.

Q. Have your tea boxes any particular mark? A. No.

Q. Did Burke pay for the box? A. No, it is not paid for yet.

Q. Whom did he send for it? A. Mrs Hare came for it about half an hour after Burke left our shop, and got it away.

ANNE BLACK or CONNAWAY Examined.

Q. You live in Wester Portsburgh? A. Yes.

Q. What does your house consist of? A. One room.

Q. You go down a stair to it? A. Yes, Sir.

Q. And going down the stair you come to a passage? A. Yes.

Q. Is there another door in the same side of the passage, a little farther in? A. Yes.

Q. Does that door lead into a room or a passage first? A. First into a passage.

Q. And at the end of that passage there is a room? A. Yes, Sir.

Q. Who lived in that room in October last? A. It was Burke; he occupied it in the last week of October.

Q. Look at the female prisoner. Did she live with Burke in the last week of October? A. Yes, Sir.

On the other side of the passage there is another house in which lived Mrs Law.

Q. Did you ever see a person of the name of Hare coming to Burke? A. Yes, Sir.

Q. Were there any lodgers lived with the Burkes in October? A. Yes, a man of the name of Gray.

Q. Did you, on the 31st of October, see Burke? A. Yes.

Q. What time of the day? A. I made no remarks.

Q. Did you, see any one with him? A. About mid-day I saw him with a woman; I was sitting by the fire, and they both passed my door.

Q. Was it the prisoner? A. No.

Q. Were they going in? A. Yes.

Q. Was she a stranger? A. Yes.

Q. Was there any one in the house with you at the time?

A. Yes, Mrs Law.

Q. Did you in the course of the day go into Burke’s? A. Yes.

Q. Did you go in alone? A. Yes.

Q. Did you find any one there? A. Yes, the said woman was sitting by the fire.

Q. Was she doing any thing? A. Supping porridge and milk.

Q. How was she dressed? A. She had no gown on, she said her things were washing. I saw nothing but her shift, and something tied on her head.

Q. Did you see any stranger there? A. No.

Q. Was Burke’s wife there? A. Yes.

Q. Was Burke? A. I dont know. You have got a stranger, I said. Yes, said M‘Dougal, we have got a friend of my husband’s here, a Highland woman.

Q. Was the strange woman sober? A. I dont know.

Q. Did you hear her speak at that time? A. No.—I then went back in the dark.

Q. What happened after you went into your own house?

A. Burke’s wife came and asked me to take care of her door until she returned, as she was going out; my husband was sitting by the fire, and after she went away, he said he thought he saw some person going into Burke’s house. We took a light and went to see, but saw nobody, save the stranger.

Q. What did you do after this? A. I said, I thought some one had come in. She rose and followed after me, and appeared the worse of drink at the time. She said she was going to St Mary’s Wynd to see a boy, to hear about her son, and she wanted the name of the land of houses, that she might return, as she said she had no money to pay for her bed. I told her she need not go for she would not find her way back again. She said Burke, whom she called Docherty, had promised her supper and a bed that night. I told her if she went out the Policemen would take her as she was bad in drink.

Q. Did she go out? A. No, she did not, she came into our house and spoke a good while with my husband about Ireland and the army, in which he had been.

Q. Did you ask how Burke and she had become acquainted?

A. No, but she said she intended to stop for a fortnight. I told her, her landlord’s name was Burke and not Docherty, but she insisted it was Docherty, for that was the name he gave himself to her.

Q. What name did she call herself to you? A. She called herself Docherty in her own name, and Campbell as her husband’s.

Q. Did any other persons come to your house shortly after?

A. Yes, Hare and his wife; Hare’s wife had a bottle with her, and he insisted they should have a dram. The prisoner M‘Dougal came in also and had a share.

Q. Did you drink any? A. Yes, and my husband treated them.

Q. Did the stranger get any drink? A. Yes.

Q. Were they merry in your house? A. Yes, Hare was dancing on the floor, so were Mrs Campbell and Mrs Burke; Campbell was bare-footed, and got a scratch on the foot with the nails in Hare’s shoes, of which she complained, but she was otherwise very well.

Q. Did they leave your house together? A. No, Mrs Campbell said she would not go till Docherty, meaning Burke, came in. I insisted on her going, but she bade me not be cruel to a stranger. Shortly after, I told her there was Docherty now, and she rose and followed him.

Q. At what hour was this? A. I think it was between 10 and 11 at night. She went towards Burke’s house.

Q. Did you sleep that night? A. No, what disturbed me, was Burke and Hare quarrelling. They appeared to be fighting.

Q. At what hour did you get up in the morning? A. I got up between three and four, but went to bed again, and got up altogether about eight o’clock.

Q. Whom did you see first? A. I heard Hare’s wife in the passage calling to Mrs Law, who was then in our house, but she did not answer.

Q. Did any other person come to your door? A. Yes, a girl afterwards came inquiring for John, who witness understood was Burke; it was between eight and nine.

Q. Did you direct her to Burke? A. Yes.

Q. Did you see Mrs M‘Dougal? A. Yes, shortly after she came and told me William (Burke) was wanting me. I went to Burke’s and found Mrs Law, M‘Dougal, and a lad named Broggan. Burke had a bottle of spirits and gave me a glass, he then threw the spirits up towards the roof of the house, and upon the bed at his back. I asked him why he wasted it, and he laughed and said, he wanted it finished to get another bottle. I then asked Mrs M‘Dougal what was become of the old woman. She said she kicked her out of the house, as she saw Burke and her too friendly.

Q. Did Burke say anything at this time? A. No.

Q. Did you ask him what the noise was about? A. Yes, he said it was a fit of drink, but they were all well then.

Q. Did you do anything more? A. No, Sir.

Q. Did you see any straw lying near the bed? A. Yes, there was a bundle of straw near the bed, which had lain there almost all the summer.

Q. When you got up at the first time in the morning, between three and four, was all quiet in Burke’s house? A. Yes, while I made my husband’s breakfast at that hour, I heard no noise.

Q. Did any other thing particular happen in Burke’s that morning? A. Yes, his wife sung a song.

Q. At what hour did you return to your own house? A. It would be the forenoon.

Q. Did you go again to Burke’s on Saturday night? A. Yes, at eight o’clock, Gray’s wife told me of something in Burke’s house and I went with her to see.

Q. What did you see? A. I saw nothing, I was so frightened that I came out.

Q. Did you see the prisoner, M‘Dougal? A. Before this M‘Dougal came to me, and said the woman Gray had stolen some things out of her house, and asked mo to watch her door, as it did not lock. This was about six o’clock.

Q. What happened after? A. When I was making my husband’s supper, Hare came to my door. He was going to Burke’s, but I told him there was nobody there; and he came into my house, but soon went back into the passage. I afterwards went to Burke’s door, and found it fastened.

Q. After you went to Burke’s door, did you see any one? A. Yes, Hare came out of Burke’s after that.

Q. Did you see M‘Dougal? A. Yes, and Burke a good bit on in the night.

Q. Did any thing else happen? A. Yes, some one said to Burke and M‘Dougal, that they were very much disturbed the night they murdered the woman. M‘Dougal laughed, and Burke said, he would defy all Scotland, as he never did any wrong. The Police came just after that and apprehended Burke.

Cross-Examined by Sir J. W. Moncrieff, Dean of Faculty.

Q. Did Burke, before he was apprehended, say any thing of the person, who accused him of the murder?

A. Yes, he said he would go and seek the man, and he met him in the passage along with the policeman, and they took him into his own house.

By a Juryman.

Q. What was the cause of your fear, when you went into Burke’s house.

A. From having heard of the murder from Mrs Gray.

JANET LAWRIE or (Law) Examined.

Q. You lived in the same passage with the prisoners in October last? A. Yes.

Q. Do you remember being at Connaway’s house on the 31st October, about two in the afternoon? A. Yes.

Q. Do you recollect seeing the prisoner Burke in the passage? A. Yes.

Q. Was he alone? A. A little woman was following him, they went into Burke’s house.

Q. Did you see Hare that evening? A. Yes.

Q. Did he go into Burke’s house? A. Yes.

Q. Did you go in there? A. Yes.

Q. Whom did you see? A. I saw Hare and his wife and Burke, and the little woman.

Q. At that time were they merry? A. Yes.

Q. You were not long there? A. About twenty minutes.

Q. Did you get any spirits? A. Yes.

Q. At what hour did you go to bed? A. About half-past nine; sometime after I heard a noise of dancing and merriment.

Q. Did you hear any singing? A. No, Sir.

Q. Fighting and scuffling? A. There was a great noise.

Q. Did you distinguish any particular voice? A. No.

Q. Did the noise last long? A. Yes. The next morning Mrs Burke came into my house to borrow a pair of bellows, and asked me if I heard Burke and Hare fighting in the night time.

Q. Any more about the fighting? A. I asked her then what she had done with the little woman? She said, she kicked her out of the door, because she had been using too much freedom with William, (meaning Burke.)

Q. Did she go after that? A. Yes, that was about eight. She afterwards returned about nine to borrow a dram glass, and asked me to come into her house.

Q. Did you go? A. Yes, and saw Hare there and Burke and M‘Dougal; and a man of the name of Broggan.

Q. Did Gray and his wife come in before you left? A. Yes, and Mrs Connaway.

Q. Did you remark any thing particular? A. Yes, Burke took a bottle of spirits, and sprinkled it about the bed and room; he said, because none of them would drink it.

Q. Was there a good deal of straw lying at the foot of the bed?

A. Yes. This took place on the Saturday morning, and Burke was apprehended that night.

Q. Did you see Mrs Connaway at Burke’s house? A. Yes.

Q. Did you go to the Police Office on Sunday? A. Yes, and was shewn the body of the little woman I saw at Burke’s on Friday night.

Cross-Examined.

Q. Was the straw that was near the bed there before? A. Yes.

Q. Was it in use? A. Yes, it had been used for some time as a bed for Gray and his wife.

HUGH ALSTON Examined.

Q. Do you live in the same land with Burke? A. Yes, I live in the flat above the shop, and he lives in the flat below the shop.

Q. Did you hear any noise on the night of the 31st October when going home? A. Yes, I heard some going along the passage between eleven and twelve that night.

Q. Tell us what you heard? A. I heard two men quarrelling; but what particularly attracted my attention was, the cry of murder from a woman. I went down a part of the stair towards Burke’s house.

Q. Do you know Connaway’s door? A. Yes.

Q. Did you go so far as that? A. Yes.

Q. Now tell us distinctly as far as you can what you heard? A. I heard two men quarrelling, and a woman crying murder, but not in such a way as would lead me to think she was in danger. She continued to do so for a few minutes; then something gave three cries as if it was strangled.

Q. Did it resemble the sound of a person or animal that was strangled? A. Yes.

Q. What did you hear after this? A. I heard no noise on the floor, only speaking loud. After these remarkable sounds, I heard the female voice who cried murder, strike her hand as if against the door and call for the police, they were murdering her. I went immediately for the police, and could not get one. I returned and went down the stair a little way.

Q. Did you hear any thing after? A. Nothing but the voices of the two men which appeared at a great distance.

Q. While you were listening, did you hear feet moving on the floor? A. Yes.

Q. How far might you be from Burke’s door when you heard those remarkable sounds? A. About three yards, or ten or fifteen feet.

Q. Was the outer door shut? A. I think it was, and that on the same door the woman struck her hands.

Q. When did you hear a body had been found? A. On Saturday evening, and that fixed my recollection of what I heard before.

Cross-Examined.

Q. You said you went in search of the Police? A. Yes.

Q. How far did you go? A. Only to the mouth of the passage. When I returned I did not consider it necessary to interfere farther.

Q. Was the voice you heard of murder the same you heard when you first went down?

A. Yes, it was like the voice that said, for God’s sake go for the police, there is murder here. I since sent a person to strike on the inner door to see if it sounded the same as I heard before, and I think it did not.

Re-examined.

Q. Was the last cry for the Police? A. Yes, and that there was murder there.

By the Jury.

Q. Have you any doubts the cry of murder you heard in the passage came from Burke’s house? A. I have no doubt of it.

ELIZABETH PATERSON, Examined.

Q. Look at the prisoner, do you know him by sight? A. Yes, I do.

Q. Did you see him on Friday, 31st October? A. Yes, he came to my mother’s house on Friday night to ask for my brother David, and I said he was out. He then went away.

Q. Did you go on the next morning to Burke’s house? A. Yes, my brother sent me for Burke, and I went and inquired for his house at Mrs Law’s.

DAVID PATERSON, Examined.

Q. Where do you live? A. At No. 26, West Port.

Q. What is your occupation? A. I am keeper of the Museum of Doctor Knox.

Q. Do you know the prisoner? A. Yes.

Q. At what hour did you go home on the 31st October?

A. About twelve.

Q. Did you find any person at your door? A. Yes, the prisoner; he told me he wanted me to go to his house.

Q. Did you go? A. Yes.

Q. Did you find people there? A. I found Burke and another man and two women.

Q. After you went in, what passed? A. The prisoner told me he had procured something for the Doctor, pointing to the head of the bed, where there was some straw; he said it in an under voice. I was near him at the time.

Q. Was any thing shewn to you at that time? A. Nothing.

Q. What did you understand he meant? A. I understood him to mean a dead body, a subject.

Q. What were his exact words? A. His words were—“There is something for the doctor (pointing to the straw) which will be ready to-morrow morning.”

Q. Was there sufficient straw to cover the body? A. There was.

Q. Was that woman, the prisoner at the bar there, (pointing to Mrs M‘Dougal?) A. She was.

Q. Would you know the other two persons who were present?

A. Yes.

Hare and his wife being brought in.

Q. Do you know these people? A. I know them by the name of Hare, they are the other persons that were at Burke’s house that night.

Q. Had you any further conversation with Burke, while you remained there? A. No, but I sent my sister for him in the morning, and he came alone about nine o’clock.

Q. What did you say to him when he called on you? A. I told him if he had any thing for Dr Knox, to go to himself, and agree with him personally. I afterwards saw the prisoner Burke and Hare in Doctor Knox’s Rooms in Surgeon’s Square, along with Doctor Jones, one of Doctor Knox’s assistants. This was between twelve and two.

Q. Did any thing pass there? A. Either Burke or Hare told Dr Knox, they had a dead body for him, which they would deliver there that night; and I had orders from Doctor Knox to be in the way to receive it, or any parcel that might come. I was there about seven, when Burke and Hare, and a porter named M‘Culloch, brought a tea-chest. They carried it in, and it was put in a cellar, (Mr. Jones was present,) and when it was locked up, I went to Newington to Dr Knox, and told him the parcel was delivered. Hare, Burke, and the porter had either gone before or followed. I saw them when I came out of Dr Knox’s house. He gave me Five Pounds to give the men, with orders to divide it between them, and in order to do so, I took them to a public-house, and got change, and gave each Two Pounds Ten Shillings. They left something for the porter. It was understood they were to return on Monday, by which time, if Dr Knox approved of the subject, they would get the remainder of the price, which I believe, was Eight Pounds.

Q. Did you hear the prisoner say any thing about women? A. Yes.

Q. Did you see any women loitering about? A. No.

Q. What happened after? A. The next morning, Sunday, Lieutenant Paterson and Sergeant Fisher of the Police came to me, and I went to Dr Knox’s cellar along with them, and gave them the package which was left there the night before.

Q. Was it still roped? A. Yes, as it had been received.

Q. Did you assist at the opening of it? A. Yes, and found it to contain the body of an elderly female, apparently fresh and never interred. The body was doubled up in the box, all the extremities doubled on the chest or thorax for want of room.

Q. Describe the state when it came out of the box? A. I examined all the body externally, stretched on a table. The face had a very livid colour, there was blood flowing from the mouth. The appearance indicated evident marks of strangulation, or suffocation from pressure. I found no external marks on the body that might have caused death.

By the Court.—Q. Did the eyes project? A. No.

Q. Was the tongue hanging out? A. No.

Q. Was there any marks about the throat? A. No.

Q. Was there any injury about the lips and nose? A. Yes, they were dark coloured and marked with blood.

JOHN BROGGAN Examined.

Was at Burke’s the morning after the murder. Saw Burke spill spirits about the room, and detailed several indecent speeches of Mrs Burke, about the way she got a shot of the old woman. He was desired by Burke to remain, but did not.

Mrs GRAY Examined.

Q. Do you know the prisoners Burke and M‘Dougal? A. Yes.

Q. You lodged in their house at the end of October? A. Yes.

Q. You saw a strange woman there? A. Yes.

Q. What had she on? A. A dark printed gown, and a pink bed-gown over it.

[Witness was shewn the clothes, and identified them.]

Q. You saw the little woman there once or twice on Friday?

A. Yes.

Q. Did Burke say how he met her? A. He said, he met her in a shop at nine or ten that morning.

Q. Did you remain at Burke’s house that night? A. No; Burke told me I should leave the house for that night as my husband and I were quarrelling; and if I would go, he would pay my lodgings, and he said I was to go to William Hare’s. I went away with Hare’s own wife, and returned about nine o’clock for some things of my child’s. Hare and Burke were dancing, and Mrs Docherty was singing to them. In the course of the day Mrs Docherty wanted to go out, but Mrs Burke would not let her.

Q. At what time did you return to Hare’s? A. Almost immediately.

Q. Did Hare and his wife come home? A. Yes, and Mrs Burke came to supper; after that they all went out together, and the Hares did not return that night. The first thing in the morning that occurred, was Burke coming to my husband to give him a dram. Then went to Burke’s house and saw there a number of people, but not the old woman. I asked where she was, and was told, Mrs Burke had turned her out as she was drunk.

Q. When you went to the house, did you go back for any thing? A. Yes, for a pair of my child’s stockings. When looking for them, Burke told me “to keep out from there;” that is, from the straw. There was whisky then used. Burke threw it about, and said he wanted to get quit of it to get more. Burke then ordered me to put on some potatoes; and I went to reach under the bed for some, when Burke told me to come out of that, I might set the bed a-fire with my pipe.

Q. Was Broggan there? A. Yes, during the day, and Burke desired he would sit there, on the chair next the straw, until he Burke came back again.

Q. Did Broggan remain? A. No, he only stopped a few minutes.

Q. Did Burke bid you clean the house? A. No; but I said it would be better to wash the floor, and put a little sand on it.

Q. What did you do after Broggan went out? A. I went to look for Burke, but I could not find him. I went out again, and met him at the West Bow, he went to take a dram.

Q. Did you discover a dead body in that house after Broggan went out? A. Yes.

Q. Where did you find it? A. Under the straw at the foot of the bed.

Q. Why did you go back? A. Because my suspicions were raised at seeing Burke throw the spirits about, and I was determined to see what it meant. The first thing I seized hold of, was the woman’s right arm. My husband took her up by the hair of the head, the body was naked, and there was blood on the nose and mouth. My husband went away before me; he met Mrs Burke on the stair, and told her what he had seen, and asked her about the body. She told him to hold his tongue, and it might be worth Ten Pounds a week to him.

Q. Did you say any thing to Mrs Burke? A. Yes, I spoke to her about the body, and told her, that was the woman who was well, singing on the floor; and she bade me hold my tongue, and she would give me Five or Six Shillings. She repeated the words again, and said, if my husband would be quiet, it would be worth Ten Pounds a week to him. I said that I would not wish to be worth money got for dead people.

Q. Did your husband give information after that to the police? A. Yes.

Q. You saw the body there? A. Yes.

Q. Was it the same? A. Yes.

Q. Did you return with Mrs. Connaway to Burke’s? A. No, I sent her in, but did not go myself.

Cross-Examined by Sir James Moncrieff.

Q. Did you sleep in Burke’s house on Thursday night?

A. Yes, on the bed of straw.

Q. Did you continue there all the forenoon of Friday?

A Yes, I never went out but for a stoup-full of water.

Q. What time did you go to Hare’s? A. About dark.

Q. Did any one ask you to come back to Burke’s that night? A. No, I thought as it was Halloween night they did not wish to have me amongst them.

Q. Who went with you to Burke’s at the time you say you went for your child’s clothes? A. My husband. It was about nine o’clock, we did not stop many minutes.

Q. Were they all making merry? A. Yes, they were dancing and singing.

Q. Do you remember was Mrs. Connaway there? A. No.

Q. You went away in a few minutes? A. Yes.

Q. You say that Hare afterwards came home, with Mrs. Hare and M‘Dougal? A. It was before I went back for the clothes and not after.

Q. Did they ask you to come and have some sport with them? A. No; next morning Burke came, and went out to give my husband a dram, and he told us to come down to breakfast, and we did.

Q. When you went down to breakfast, did you see Hare or his wife then? A. No.

Q. Are you sure? A. Quite sure, she came home before I went to breakfast. I did not get up until eight o’clock.

Q. Did M‘Dougal say any thing to your husband or yourself about the body when it was found? Did she say, My God I cannot help it? A. Yes, I recollect now, she did.

Q. Did these words follow her offer of the ten pounds a week? A. Yes.

By the Court.

Am I to understand she said, “My God, I cannot help it,” after you said you did not wish to make money by dead people? A. Yes. [Here she recapitulated her evidence in a very distinct manner.]

Q. Did the woman make no reply, when you said the woman was dead, whom you saw well and singing the night before? A. No.

Q. What did you say after? A. I said, if she could not help it, she ought not to remain in the house.

Q. Were these words, “My God, I cannot help it,” used after M‘Dougal had spoken to your husband of ten pounds a week, and he had refused to be silent? A. Yes, it was after the offer of money; and I said, did she mean to bring a family to disgrace, that prisoner replied, “My God, how can I help it.”

JAMES GRAY, Labourer, Husband of the foregoing Witness, Examined.

Q. You lodged at the prisoner’s house? A. Yes, for a few nights at the end of last October.

Q. Do you remember Burke having any conversation with you about sleeping out of his house on the 31st of that month?

A. Yes, Burke said we must go out that night, that he had provided a place for us, and that we might come back in the morning to breakfast.

Q. Did he give any reason for desiring you to leave his house that night? A. No, not that I recollect. He took us to Hare’s, and pitched on a bed he used to occupy himself.

Q. Did you know that Burke brought in a strange woman that morning before, and ordered breakfast for her? A. Yes. He said, he suspected she was some relation of his mother’s, as she had the same name, and was from near the same place.

Q. Did you return the night you left Burke’s? A. Yes, about nine, with my wife, where we saw a good number of people at Burke’s; we stopped a few minutes. Next morning Burke came, and my wife and I went down to breakfast.

Q. In the course of that Saturday, was you present when your wife found a dead body? A. Yes, it was covered with straw, and lying near the head of the bed.

Q. Was it the woman you saw there the night before? A. Yes. I then packed up my things that were there, and was on the point of taking them to a house opposite, when I met Mrs. Burke, I asked her, what was the meaning of that thing I saw in her room. She asked what; I said, I suppose you know, the body. She then fell upon her knees and supplicated me, offered me five or six shillings, and said, if I held my tongue, it might be worth ten pounds a week to me. I said, my conscience would not allow it.

Q. Did she say the same thing to your wife? A. Very near.

Q. Did she say she could not help it? A. She did.

Q. After this conversation, did your wife and you leave it?

A. Yes. Mrs. Burke followed us up to the street. We met Mrs. Hare; she asked us what we were quarrelling about, and desired us to go into a house and settle our dispute. We did go, and shortly after I went straight to the Police.

By the Court.

Q. When you saw the body, did you know it to be the woman who was there the night before? A. Yes; it was quite naked. There was blood upon the mouth.

Cross-Examined.

Q. What hour was it when you left Burke’s house first, on the evening of the 31st? A. About five in the evening.

Q. What hour did Burke come for you in the morning? A. I think about seven.

Q. Was Burke in Hare’s at supper? A. No; but Mrs. Burke was. The Hares had left before Burke came.

GEORGE M‘CULLOCH Examined.

Q. You are a porter? A. Yes.

Q. Did the prisoner Burke come to you to carry a parcel for him at the end of October last? A. Yes. Q. Where did you go first? A. To Burke’s house. We went into his room, where we got a box like a tea-box; he took something in a sheet, and put it into the box. Q. Was it like the shape of a human body? A. I think it was. Q. Had you no doubt it was a body? A. No. Q. Did you assist? A. No; but when the body was putting in there was some hair which I pushed in. Q. When the body was putting in the box was there violence used? A. Yes. Q. Was there another man there? A. Yes, of the name of Hare.

Q. What became of the sheet? A. It was left where the body was carried to. (The witness was shown a box.)

Q. Was that the box? A. The very box.

Q. Was the hair long? A. No.

Q. Did you carry the box? A. Yes.

Q. Did the prisoner follow you? A. Yes. He told me to go towards the High School Wynd.

Q. Did you go? A. Yes.

Q. Did any person join you? A. Yes, the prisoner and his wife, and Hare and his wife.

Q. Then you went to Surgeons’ Square? A. Yes, and took the box off my back. Q. What hour was it? A. It was half-past six.

Q. Where did you go after? A. To Newington.

Q. Who went with you? A. The prisoner, Hare, and their wives.

Q. Did they separate from their husbands? A. Yes.

Q. You saw a person of the name of Paterson?

A. Yes. We went into a public-house, and he shared the money between the prisoner and Hare, and gave me five shillings for my trouble. When we came out the women were gone.

JOHN FISHER, Examined.

Q. You are a police officer? A. Yes.

Q. Do you remember a person coming to the office? A. Yes.

Q. Where did you go with him? A. To William Burke’s.

Q. What did you go there for? A. To make inquiries, as I heard the body was removed; I met Burke and M‘Dougal on the stair, I bade them come down, I wished to speak with them. I asked Burke what had become of his lodgers? He said, there is one (pointing to Gray) and that he turned them out for their bad conduct. I then asked what became of the little woman that was there on Friday? He said she left at seven in the morning. I asked him if any person saw her go away? He said, William Hare. I asked if any one else saw her go? He then looked insolent, and said, many saw her go. I saw marks of blood on the bed, and asked how they came there. M‘Dougal said a woman had lain in there a fortnight ago. She said she knew where to find the little woman, she lived in the Pleasance. She saw her that night at the Vennel, and she apologized for her bad conduct. I asked her what time she left, and she said at seven o’clock at night. I then decided on taking them to the office, which I did, on a pretext that it was all a matter of spite against them, and if they would come to the police office, it would be all cleared up.

Q. Did you return to Burke’s house that night? A. Yes, with the Superintendant and Dr. Black.

Q. Did you examine the house? A. Yes.

Q. You found a striped bed-gown on the bed. A. Yes.

Q Was that it?—(The bed-gown was exhibited.) A. Yes.

Q. Did you find any blood? A. Yes, amongst the straw.

Q. Did it appear to have been long there? A. No.

Q. Next morning you went to Dr. Knox’s with Paterson? A. Yes.

Q. And what did you find?

A. The body of an old woman quite naked. We sent for Gray to see if he knew the body, and he identified it. We afterwards returned in the day and removed the body to the police-office.

Q. Was the body shown to the prisoners? A. Yes.

Q. They denied all knowledge of having seen it, dead or alive? A. Yes.

Q. Did you go to Burke’s house again? A. Yes, and found an old gown and a bag.

Q. Were these the articles? (They were exhibited.) A. Yes.

Q. Was the body after examined? A. Yes, by Dr. Black, Dr. Christison, and Dr. Newbigging.

Cross-Examined.

Q. Did Hare deny all knowledge of the bodies? A. Yes.

Q. And his wife? A. Yes.

WILLIAM HARE (or HAIRE) Examined.

WILLIAM HARE (or HAIRE) a socius criminis, was now brought forward, and his entrance into the witness’s box produced a great sensation in the Court. He was first sworn according to the form used in Scotland, and warned in the most pointed manner to speak the truth, for if he was found to deviate the least from it, the most condign punishment would await him.

Q. You are a Roman Catholic? A. Yes.

Q. Would you wish to be sworn in any other way? A. I never took an oath before, I believe it is all one way.

(He was then sworn upon a New Testament, with his right hand on the Cross.)

Q. How long have you been in this country? A. Ten years.

Q. How long have you been acquainted with the prisoners? A. About twelve months.

Q. Is your house near Burke’s? A. Yes.

Q. You remember last Halloween? A. Yes.

Q. Were you drinking in a public-house with Burke? A. Yes.

Q. What did he say? A. He asked me to go down to his house to see what a shot he had got for the Doctors. He said he got an old woman off the street, and she would make a good shot for the Doctors. He told me to go down to the house and see if they were drinking, for he did not like to go.

Q. What did you understand by a shot for the Doctors?

A. That he was going to murder her.

Q. Did you go down? A. Yes, I found a man and a woman and Nelly M‘Dougal, and the old woman washing her short-gown.

Q. Was the strange man’s name Gray? A. Yes.

Q. What colour was the short-gown? A. Reddish striped.

Q. Is that it? (The gown was exhibited.) A. Yes.

Q. Did you remain long there? A. Five minutes, and then went home.

Q. Was you in Connaway’s after that? A. Yes, between eight and nine o’clock.

Q. Who was at Connaway’s? A. There was William Burke and Broggan, and another chap I did not know, and my wife, John Connaway, and Nelly M‘Dougal. The little old woman was left at Connaway’s, where they had some drink.

Q. Had you some? A. Yes, we then went to Burke’s, and Burke and his wife and the old woman came in; we were all hearty.

Q. Did you then expect the old woman was to be murdered? A. No.

Q. You had a quarrel with Burke? A. Yes, he struck me on the mouth, and I struck him again, the woman came between us, he pushed me on the bed twice and I remained on the bed; the old woman got up and wished Burke to sit down, as he treated her well; she said she did not wish to see him ill used; she run out before this to the passage and cried out either murder or police.

Q. How was she brought back again? A. It was Nelly M‘Dougal that brought her back both times.

Q. When you were struggling, did you knock the old woman down? A. Yes, and she lay on her back, so drunk she could not get up, she cried to Burke to quit.

Q. Did he quit you? A. Yes.

Q. What did he do then? A. He got on the old woman with his breast on her head, and kept in her breath, she gave a kind of cry and moaned a little after the first cry.

Q. How did he apply his hands to her? A. He put one hand on her nose and the other under her chin, and stopped her breath, he continued this for ten or fifteen minutes.

Q. Did he say any thing while this was going on?

A. No, he then got up and put his hand across her mouth and kept it there three or four minutes; she appeared quite dead then.

Q. Was you looking on all this while? A. I was sitting on the chair.

Q. Did he strip the body? A. Yes, and put the clothes under the bed, he then doubled up the body, and put the straw on top of her near the head of the bed.

Q. While you were sitting on the chair and he was murdering, where was your wife and M‘Dougal? A. When they heard the first screech they leaped out of bed and run into the passage, and did not come in until the body was put away.

Q. Where were you? A. I was sitting at the head of the bed when they both lay down and covered themselves with the quilt.

Q. Did you see any blood at that time? A. No.

Q. Did any body come to the door when the woman cried in the passage? A. No.

Q. Before the women sprung up was Burke long on the woman? A. A minute or two.

Q. Did any one go to Burke to try and save the woman?

A. No one.

Q. Who went out first? A. My wife.

Q. And M‘Dougal followed after? A. Yes.

Q. Could any one have prevented Burke without your seeing them? A. No.

Q. Did the women make any inquiries when they came into the room? A. No, they both went to bed. Then Burke went out after the woman was laid aside, and stopped out ten minutes.

Q. Did any body come back with him? A. Yes, the Doctor’s man, Paterson.

Q. Did Burke say any thing to the Doctor’s man?

A. Yes, he wanted him to look at the body. Paterson said it would do very well, to put it in a box; he would not look at it. I don’t know when Paterson went away, I fell asleep.

Q. Were you tipsy? A. I knew what I was about.

Q. What time did you awake? A. Between six and seven in the morning. I was sleeping on the chair, with my head on the bed; the two women and John Broggan were in bed; he lay next his aunt, Nelly M‘Dougal. Burke was sitting at the fire. After this I went home, and found Gray and his wife at my house; they had had a bed there that night.

Q. Did Burke come to your house the next morning?

A. He did. We went to get our morning; he asked me to go to Surgeons’ Square to get a box.

Q. Did you get a box there? A. No. Burke then said he had one bespoke from Mr. Rymer’s shop-boy. We got a box, and the porter brought it in. Burke was not in then. We left the box, and stopped at the back door until Burke came. When he came he asked me what I was doing, that I did not get it into the box. He then went in, and drew the body from under the bed, and the porter helped to put it in; there was some hair hanging out, and the porter put it in; and said, it was bad to let it hang out. The porter then carried it away to Surgeons’ Square. It was roped. (That box in Court is it, or like it.) I went with the porter, and Burke went for the Doctor’s man. They came to Surgeons’ Square, and we went in with the box. We put the box in a cellar, and then we went to Newington to the Doctor. Mr. Paterson went in, and he afterwards came out and asked if we would go to a public-house, he had money for us. We saw our wives following us, but they did not come into the house. Paterson gave the porter 5s. and each of us L.2, 7s. 6d. We were to have five pounds more on Monday. I saw nothing very particular until I was taken up.

Cross-examined by Mr. Cockburn.

Q. You say you have been ten years in Edinburgh? A. Yes.

Q. How have you been engaged?

A. I have been a labourer, and sometimes employed in selling fish with a cart and horse.

Q. Have you been engaged in supplying bodies to the Doctors? A. Yes.

Q. Have you been concerned in supplying the Doctors with subjects on other occasions than that you have mentioned?

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 consequence 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 England 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 this witness. 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 answers 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 impression 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 importance, have desired to obtain every light that could have been thrown upon it before I ventured to deliver my judgment 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 I were satisfied that if any thing that was suggested by them had the effect of shaking the opinion which occurred to me at first, nothing that I stated before could have prevented my honestly and frankly avowing it. I have, 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 argument, except that which has been obtained from the law of England. Now, I for one throw the law of England altogether 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 account 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 present 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 it is quite competent for the prisoner to put any question 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 matter 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 prisoners; for, upon their application, the witness was particularly warned that he was only required to speak the truth, and the whole truth, relative to the third charge in this indictment. I have always understood, however, that no question could be put, upon cross-examination, to a witness in this country, which would, if answered, have the effect of rendering 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 examination 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 inclined 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 suspect that is best to be obtained by preventing witnesses being harassed in the way that would result from such questions 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 depones that he has been present at more murders than the one in question, what is to be the result? Is the Lord Advocate upon the re-examination to ask him at what murders he has been present, and who was concerned in those murders; or to go into an examination of all the matters connected 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’ intention: yet the Court must be prepared either to go this length or not, before 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 entitled 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 either 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 answered in the affirmative, would disqualify a witness. Thus, 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 necessary 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 not 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 having 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 “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 Advocate 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 choose to ask.

Hare recalled.

Q. You mentioned when you was last here, that you assisted 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.

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 Police 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 passage 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 sit 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.

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 Lord 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 before.

Q. Was there a fight there between Burke and your husband? 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 woman? 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 woman?

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 passage? 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? A. Because I left my home three times before; and it is not natural 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 was 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 don’t 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 to bed again? A. No.

Q. Was M‘Dougal in bed? A. No; Broggan, M‘Dougal, 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.

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 particular 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 suffocation, 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.

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 redness (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 vertebræ 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 contusion over the left eye.

Q. Did you consider that those contusions could be produced 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 after death, would, I think, cause the same appearances. Cramming into a box or chest like that shown might have caused these appearances. Strangulation or smothering, or throttling, is consistent with what has been described, 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 appearances in some cases of suffocation would be similar to those in the present instance. The appearance of blood from the mouth or nose after death may be produced by any species of suffocation. 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 circumstances mentioned they amount to a probability.

By the Court.—Q. Did you open the stomach?

A. Yes, my Lord.

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 person 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.