The Court of Cacus; Or, The Story of Burke and Hare

by Alexander Leighton

When the witnesses were all examined, there ran through the court a whisper, “Where are the doctors?” and well there might, for in all that crowd you could not have got half-a-dozen who did not think these men nearly as culpable as the principal actors. It was known that their names had been placed on the back of the indictment as witnesses, but a very small amount of consideration might have satisfied any one that, whether appearing for the prosecution or the defence, they would be exposed to the danger either of self-crimination or falsehood. They could not have appeared with any effect on the one side without swearing to marks of violence, which would have proved their condemnation; nor on the other without witnessing to the total absence of those signs, which would have convicted them of premeditated lying. The indomitable leader had long before settled the question of their appearance, by ruling them, as he attempted to do the straightforward curator—the only person connected with the Square who came forward—to the determination of being the mutes of the tragedy; and there can be no doubt that his policy was the right one, when it was found that they not only kept themselves scathless from all but the Argive calumny, which, in their case, died away, but afterwards rose to wealth and estimation. If they were ardent students of the science of anatomy, it did not follow that they should also be ardent students of that of justice; and then self-preservation is the first duty of Nature—a keen-eyed deity, who is somewhat before her who is blind. But all these things were not weighed and computed by the dissatisfied people who were in the court that day, and they still looked for the doctors even after the Lord Advocate had begun his speech to the judges and the jury.

That speech was perhaps the best Sir William Rae had ever spoken; and it was not without its delicacies and difficulties. He knew that if the evidence of the Hares, which was, even on the face of it, a tissue of lies, were disbelieved by the jury, he had no case; and he trembled under the responsibility of satisfying an infuriated people, who, surrounding the court-house with ominous faces, made themselves heard by shouts even within the walls of the court. “I do not,” he said, “present those persons, Hare and his wife, to you as unexceptionable witnesses. Assuredly they are great criminals; but the law has said that their testimony is admissible, and thus pronounced it is not undeserving of all credit. It is for you to judge of the degree of credit to which they are entitled. You saw them examined, and will draw your own conclusions. I may be prejudiced, but to me it did appear that, while the evidence of the wife was in many points exceptionable, Hare himself spoke the truth. Notwithstanding all the ability shewn in the cross-examination, I do not remember one particular in which he was led to contradict himself, or state what must be false. Doubtless there exist inconsistencies betwixt his evidence and that of his wife; but these are not of a nature that ought to induce you to withhold all credit from their testimony. Your experience will tell you how difficult it is to find two individuals who, however disposed to speak the truth, will concur in such particulars in regard to an interview which occurred at the distance of two months. But look to the situation in which these persons were placed. Look to the size of the apartment in which all this occurred. Recollect that all present were proved to have been nearly intoxicated at the time, and remember that an act of foul murder was at the time committing. Is it possible that they should not have been in a state of unusual excitement and alarm at the time? And is it wonderful that their memories should have served them differently in regard to such trifling particulars as those to which I have alluded? If they had been at one in all these points, the only just inference would have been that the story was entirely made up between them, and their evidence, in consequence, not entitled to any credit. But look to the main point of the case—the murder, and the mode in which it was done. That was a fact sufficient to rivet attention, and render sober any one, however inebriated. On this material point you find these witnesses entirely concurring,—both describing the same mode of death, and both describing a mode which corresponds completely with the appearance of the body, and which, in the opinion of the medical men, satisfactorily accounts for the death. That both Burke and Hare were participant in the foul act, no one can doubt; and I need not state to you that it matters not which was the principal aggressor in its execution. They are both art-and-part guilty.”

The Dean of Faculty, for Burke, then spoke; and afterwards came Henry Cockburn, for Helen M‘Dougal, with that speech, so renowned among the displays of forensic eloquence, as almost rivalling that of Jeffrey for Mrs Smith. His point of attack was—the credibility of Hare and his wife. “Our learned friend, who prosecutes here, has demonstrated by his conduct, that he is satisfied you ought not to convict without the evidence of the associates; and thus we are absolutely driven to consider what credit is due to those witnesses. If you shall agree with me in thinking that it is an absolute sporting with men’s lives, and converting evidence into a mockery, to give the slightest faith to anything these persons may say, then we have the authority of the public accuser himself for holding that you must acquit. Now, on what does these witnesses’ claim to credit rest? One of them is a professional body-snatcher, the other is his wife; so that, independently altogether of the present transaction, they come before you confessedly vitiated by the habits of the most corrupting and disgusting employment which it is possible to be engaged in, and one of which the chief corruption arises from its implying that he who practises it has long been accustomed to set law, feeling, and character at defiance. Then they both confess their direct accession to this particular murder—a confession which, if it had been made at the bar, would have for ever disqualified them from giving evidence in any court of justice; not having been made at the bar, they are admissible. But, since they have made the very same confession in the witness-box, their credit is as completely destroyed in the one case as it would have been in the other. Hare not only acknowledged his participation in this offence, but he admitted circumstances which aggravated even the guilt of murder. He confessed that he had sat coolly within two feet of the body of this wretched old woman while she was expiring under the slow and brutal suffering to which his associate was subjecting her. He sat there, according to his own account, about ten minutes, during which her dying agonies lasted, without raising a hand or a cry to save her. We who only hear this told, shudder, and yet we are asked to believe the man who could sit by and see it. Nor was this the only scene of the kind in which they had been engaged. The woman acknowledged that she ‘had seen other tricks of this kind before.’ The man was asked about his accession on other occasions, but at every question he availed himself of his privilege, and virtually confessed by declining to answer.

“But why does the law admit them? Why, just because after they are admitted it is the province of you, gentlemen, to determine how far they are to be believed. You are the absolute monarchs of their credibility. But in judging of this, do not be misled by what juries are always told of those who turn king’s evidence, that they have no interest now but to speak the truth. But it is notorious that there is nobody by whom this is so universally forgotten as by those who make a bargain for saving themselves by betraying their associates. These persons almost invariably hurt the interests of their new master by the excess of their zeal in his service. They exaggerate everything, partly by the desire of vindicating themselves, and partly to merit the reward for which they have bargained. And you will observe that, in this case, these persons stand in this peculiar situation, that, so far as we know, they are still liable to be tried for similar offences. There are other two murders set forth in this very indictment, one of them committed in Hare’s house, and if we may judge from what these persons say, they have been engaged in other transactions of the same kind. They came from the jail to this place to-day, and they are in jail again. Do you think that it is very improbable that when coming here they should feel that if this prosecution failed, public indignation would require another victim, and that nothing was so likely to stifle further inquiry as the conviction of those persons?

“The prosecutor seemed to think that they gave their evidence in a credible manner, and that there was nothing in their appearance, beyond what was to be expected in any great criminal, to impair the probability of their story. I entirely differ from this; and I am perfectly satisfied that so do you. A couple of such witnesses, in point of mere external manner and appearance, never did my eyes behold. Hare was a squalid wretch, in whom the habits of his disgusting trade, want, and profligacy, seem to have been long operating in order to form a monster whose will as well as his poverty will consent to the perpetration of the direst crimes. The Lord Advocate’s back was to the woman, else he would not have professed to have seen nothing revolting in her appearance. I never saw a face in which the lines of profligacy were more distinctly marked. Even the miserable child in her arms, instead of casting one ray of maternal softness into her countenance, seemed at every attack (of hooping-cough) to fire her with intenser anger and impatience, till at length the infant was plainly used merely as an instrument of delaying or evading whatever question it was inconvenient for her to answer.”

The Lord Justice-Clerk then charged the jury, going over the evidence, and at last directing his special attention to the case of M‘Dougal:—“It is not in evidence that she took any part in the actual perpetration of the crime; but the question remains, and if answered in the affirmative, will be equally fatal to her as if she had done so, namely, whether she was an accessory, and, therefore, to be held in law as art-and-part guilty along with the other prisoner. Accession to a crime may take place before the fact as well as at the moment the crime is committing. It may likewise be inferred from the conduct of the party after the fact; and if you are to believe the evidence which you have heard, I am much afraid there are but too strong grounds for concluding that the female panel at the bar has been guilty of accession to the crime under investigation, whether you consider her conduct before or after the fact, or while it was perpetrating. It is impossible to conceive for one moment that, under all the circumstances of the case, the panel M‘Dougal could be ignorant of the purpose for which this wretched woman Docherty was brought to the house. The state in which Burke and she appear to have lived, their brutal and dissipated habits, make it impossible to believe that either of them kept the woman in the house from the humane or charitable motives they professed to feel, and affected to shew, towards that unfortunate creature. On one occasion, it would appear, indeed, from the evidence of Gray’s wife, that M‘Dougal actually opposed the proposition of the woman going out of the house. The manner, too, in which she communicated the fact to Mrs Hare, that they had got a shot in the house, shews distinctly her complete knowledge of what was in view, and implicates her morally as well as legally in the guilt that afterwards ensued. Again, as to her accession during the perpetration of the crime, thus much appears, according to the evidence of Hare and his wife, that both Mrs M‘Dougal and Mrs Hare were in the room, at least—whether in the bed, as Hare states, or standing between the bed and the door, as his wife swears, seems immaterial—when Burke placed himself on the body of the woman; and that upon her hearing the first screech of the woman they both flew, as Mrs Hare expresses it, to the passage, where they remained till the door was opened. By this time the crime had been accomplished, and the body thrown among the straw.”

Before the jury retired, and during the time they were enclosed, Burke endeavoured to prepare the mind of M‘Dougal for her fate, as, from the address of the Lord Justice-Clerk, he supposed she would be found guilty. He even gave her directions how to conduct herself, desiring her to look at and observe him when the sentence was pronounced. The jury retired at half-past eight in the morning, and after an absence of fifty minutes, returned the following verdict:—“The jury find the panel William Burke guilty of the third charge in the indictment; and find the indictment not proven against the panel Helen M‘Dougal.” On hearing the words of the foreman, Burke turned to M‘Dougal, and coolly said, “Nelly, you are out of the scrape.”

Thereafter, Lord Meadowbank proposed the sentence, prefacing at considerable length:—“Your Lordships will, I believe, in vain search through both the real and the fabulous histories of crime for anything at all approaching this cold, hypocritical, calculating, and bloody murder. Be assured, however, that I do not state this either for exciting prejudices against the individual at the bar, or for harrowing up the feelings with which, I trust, he is now impressed. But really, when a system of such a nature is thus developed, and when the actors in this system are thus exhibited, it appears to me that your Lordships are bound, for the sake of public justice, to express the feelings which you entertain of one of the most terrific and one of the most monstrous delineations of human depravity that has ever been brought under your consideration. Nor can your Lordships forget the glowing observations which were made from the bar in one of the addresses on behalf of the prisoners, upon the causes which, it is said, have in some measure led to the establishment of this atrocious system. These alone, in my humble opinion, seem to require that your Lordships should state roundly that with such matters, and with matters of science, we, sitting in such places, and deciding on such questions as that before us, have nothing to do. It is our duty to administer the law as handed down to us by our ancestors, and enacted by the legislature. But God forbid that it should ever be conceived that the claims of speculation, or the claims of science, should ever give countenance to such awful atrocities as the present, or should lead your Lordships, or the people of this country, to contemplate such crimes with apathy or indifference. With respect to the case before us, your Lordships are aware that the only sentence we can pronounce is the sentence of death.”

Then the Lord Justice-Clerk, putting on the black cap, said:—“William Burke, you now stand convicted, by the verdict of a most respectable jury of your country, of the atrocious murder charged against you in this indictment, upon evidence which carried conviction to the mind of every man that heard it, in establishing your guilt in that offence. I agree so completely with my brother on my right hand, who has so fully and eloquently described the nature of your offence, that I will not occupy the time of the Court in commenting any further than by saying that one of a blacker description, more atrocious in point of cool-blooded deliberation and systematic arrangement, and where the motives were so comparatively base, never was exhibited in the annals of this or of any other court of justice. I have no intention of detaining this audience by repeating what has been so well expressed by my brother; my duty is of a different nature, for if ever it was clear beyond all possibility of a doubt that the sentence of a criminal court will be carried into execution in any case, yours is that one, and you may rest assured that you have now no other duty to perform on earth but to prepare in the most suitable manner to appear before the throne of Almighty God to answer for this crime, and for every other you have been guilty of during your life. The necessity of repressing offences of this most extraordinary and alarming description, precludes the possibility of your entertaining the slightest hope that there will be any alteration upon your sentence. In regard to your case, the only doubt that has come across my mind is, whether, to mark the sense which the Court entertains of your offence, and which the violated laws of the country entertain respecting it, your body should not be exhibited in chains, in order to deter others from the like crimes in time coming. But taking into consideration that the public eye would be offended by so dismal an exhibition, I am disposed to agree that your sentence shall be put into execution in the usual way, but unaccompanied by the statutory attendant of the punishment of the crime of murder—viz., that your body should be publicly dissected and anatomised, and I trust that if it ever is customary to preserve skeletons, yours will be preserved, in order that posterity may keep in remembrance your atrocious crimes. I would entreat you to betake yourself immediately to a thorough repentance, and to humble yourself in the sight of Almighty God. Call instantly to your aid the ministers of religion, of whatever persuasion you are; avail yourself from this hour forward of their instructions, so that you may be brought in a suitable manner urgently to implore pardon from an offended God. I need not allude to any other case than that which has occupied your attention these many hours. You are conscious in your own mind whether the other charges which were exhibited against you yesterday were such as might be established against you or not. I refer to them merely for the purpose of again recommending you to devote the few days that you are on earth to imploring forgiveness from Almighty God.” The written sentence was in conformity.

Such was the sentence of Burke, sending very appropriately his body where he had sent so many others. The people were so far pleased that they had got an instalment;[14] but, in spite of the approbation bestowed on the jury by Lord Boyle, the finding of “Not proven” against Helen M‘Dougal was looked upon as a mere bilking of justice. No man could have any doubt of her guilt, as being art and part, and if ever a jury acted in defiance of their consciences, it was in liberating this woman; nor do we believe that they did not think the charge proven against her—they were simply desirous that they should not afford an opportunity for the application of an old law seldom put into execution. This motive might have been looked upon as humane in an ordinary case, for assuredly the law of art and part is apt to take on cruel forms, but to withdraw Helen M‘Dougal from its power was, at the very best, a squeamish and sickly humanity. So, too, thought the public, and their anger rang through the city, even in the midst of the satisfaction universally felt at having got, at least, an instalment of justice. But were the other murderers also to get free?