And, Gentlemen, this aid of able counsel is of the more importance, that this is one of the most extraordinary and novel subjects of trial that has ever been brought before this or any other Court, and has created in the public mind the greatest anxiety and alarm. I am not surprised at this excitement, because the offences charged are of so atrocious a description, that human nature shudders and revolts at it; and the belief that such crimes as are here charged have been committed among us, even in a single instance, is calculated to produce terror and dismay. This excitement arises from detestation of the assassins’ deeds, and from veneration for the ashes of the dead. But I am bound to say, that whatever may have occasioned this general excitement, or raised it to that degree which exists, it has not originated in any improper disclosures on the part of those official persons who have been entrusted with the investigations connected with this business; for there never was a case in which the public officers to whom such inquiries are confided, displayed greater secrecy, circumspection, and ability. It is my duty, Gentlemen, to remove that alarm which prevails out of doors, and to afford all the protection which the law can give to the community against the perpetration of such crimes, by bringing the parties implicated to trial; and I trust it will tend to tranquillize the public mind, when I declare I am determined to do so. I cannot allow any collateral notions about the promotion of science to influence me in this course; and I am fully determined that every thing in my power shall be done to bring to light and punishment those deeds of darkness which have so deeply affected the public mind.
Gentlemen, before I proceed to detail, which I shall do very briefly, the evidence now laid before you in support of the indictment against the prisoners, I must impress upon you what will be more eloquently and emphatically told you by their counsel and the Court, that in judging upon the only charge now under trial, you are to banish from your minds all impressions which you may have received from any other source than from the evidence itself. To that evidence alone you must confine your attention—and you are not to allow yourselves to be moved by the fact that there were other charges in the indictment of a similar description, because these charges have now been entirely withdrawn, for the present, from your consideration. Those charges have been separated from that now to be tried, at the special desire of the prisoners themselves, and to remove any ground of objection that an impression was necessarily created to the prejudice of the prisoners. God forbid, that I should ever in any case, pursue a criminal in a form to the prejudice of the party accused. The pannels are accused of murder—and the three instances that were libelled were only three separate facts in support of that general charge. But since the prisoners and their Counsel have made their option to be tried for each separately, and the Court have sanctioned this course, I willingly acquiesce in it. I must say, however, that in framing the indictment, including all the three charges, I did so to give the pannels the fairest chances on their trial, and for the purpose of probing to the bottom the whole system of atrocity, a part of which I have this day brought before you, with evidence, which, I conceive, amounts to the most complete and convincing proof.
In going over that proof, Gentlemen, it is not necessary that I should read over to you fully the notes of the evidence—because that will be more ably and authoritatively done by the Court, than it can be by any one in the situation of Public Prosecutor. I shall, therefore, content myself with a condensed and connected reference to its import—from which I have no doubt, you will find a verdict of guilty against the pannels.
Gentlemen—the chain of evidence in this case is very complete, and you can, from the testimony of the witnesses you have heard examined, trace the poor creature who was murdered, from Mrs. Stewart’s house, in the Pleasance, to Burke’s house, where she was bereaved of life, and whence her body was afterwards carried, by the direction of Burke, to Dr. Knox’s dissecting-room, in Surgeons’ Square, where Burke sold it to the Doctor, and delivered it to his assistant. This is the essence of the crime charged, and it is clearly established in evidence. You have heard the evidence of Mrs. Stewart, that in the forenoon of Friday, the 31st October last, the deceased left Mrs. Stewart’s house to go in quest of her son. In this case there is no doubt as to the time, for it was in the Sacrament week, and on Hallowe’en—two circumstances which enable all the witnesses to speak positively on that point. You have next the testimony of Charles M‘Lachlan, who lodged with Mrs. Stewart, and who accompanied the deceased as far as his own shop in St. Mary’s Wynd, where he parted with her, betwixt nine and ten o’clock on the forenoon of that day. You have then the testimony of William Noble, Mr. Rymer’s shop-boy, that she met with Burke in his master’s shop, at an early hour in the forenoon of the same day, when he asked her name, and struck up an acquaintance with her on hearing it, upon a pretence that it was likely she was a kinswoman; and as she was destitute, and seeking charity, he beguiled her to his house in the West Port, by pretending kindness, offering her breakfast, &c. Mrs. Connaway, who lived in the same house with Burke, saw him pass into his apartment with the deceased in his company, about the middle of the same day—saw her again in the evening in Burke’s company, when jollity prevailed—dancing, and singing, and drinking; in all of which hospitalities the deceased joined, and was in perfect health and good spirits; and, finally, saw her go from her (Connaway’s) house into Burke’s, about eleven o’clock the same night, in company with the pannels and Hare and his wife. Mrs. Law corroborates a great deal of this, and the deceased is identified by all these witnesses, so as to leave that matter quite clear. Then, the disturbance in Burke’s house, after the pannels, and Hares, and the deceased went into it, is instructed by all the neighbours; and the testimony of Alston is most important; for, in addition to the other circumstances previously established, he proves that, betwixt eleven and twelve o’clock the same night, he heard a riot in Burke’s house, and cries of murder and distress, which induced him to go in search of the Police; but not finding an officer, and the cries having ceased, he concluded the riot to be over, and the mischief which he apprehended, to be at an end. It is also proved, by Connaway and others, that Burke went out in the evening, and was absent about ten o’clock, at which hour, it is proved by Elizabeth Paterson, that Burke called, inquiring for her brother, an assistant to Dr. Knox, Lecturer on Anatomy; and he being from home, that Burke proceeded with the deceased, and the other persons referred to, including the defunct, into his own apartment, at eleven o’clock that night. There is the testimony of Gray and his wife, that they, being temporary lodgers in Burke’s house, were requested to go elsewhere for that night, and that their lodgings for that night were provided and paid for by Burke; and they confirm many particulars stated by the other witnesses. Then there is the testimony of Paterson, Dr. Knox’s assistant, that Burke came to him at twelve o’clock the same night—took him to his house, and told him he had got a subject for the Doctor. You have the evidence of Gray and his wife, that on Saturday the 1st November, they found lying under the bed, the dead body of the deceased, whom they had seen the previous night in Burke’s room, alive and in good health. There is no evidence that she was drunk. You have the evidence of the porter who packed and carried the dead body to Surgeons’ Square—of Paterson who received it in a box, and paid £5 of the price to Burke and Hare—of the shop-boy who sold the box to Burke; and thus proof of every circumstance, except the actual fact of murdering the woman by the pannels; and then that is supplied by the testimony of the Hares, who, no doubt, were socii criminis, and who explain all the horrible details of the perpetration of this deliberate and midnight murder. That they are liable to suspicions as socii criminis, I admit; but they only corroborate evidence which, in all its parts, would alone be sufficient to bring home the crime to the pannels: and, however worthless these persons may be, it is with you, gentlemen of the jury, to decide to what measure of credibility they are entitled, when they, in this and other particulars, give an explanation of what could only be seen by them at the time—being an occult crime, committed in the dead of night. When it is proved by other unexceptionable evidence that Burke seduced this poor destitute woman into his house, on a pretext of hospitality, she being at that time in perfect health, that he went to a person with whom he was in the habit of dealing in dead bodies, as anatomical subjects, at ten o’clock—went again to him at twelve the same night, and offered him a subject—and next day carried it, and sold for money the body of the deceased, which has been fully and satisfactorily identified,—what conclusion can be drawn from all this good evidence, corroborated by that of the socii, but that these pannels had perpetrated the foul murder libelled, with the intent and purpose of selling the body to be dissected, for a paltry sum of money? I will not waste your time by going into every minute circumstance in the proof; but it is all consistent,—reconcilable, except in the most trivial and unimportant points, and perfectly conclusive against the prisoner Burke. The credibility of the socii will be strongly questioned, I have no doubt, by the counsel for the defence; but giving all proper weight to the ordinary objections in such cases, I submit to you that the main points of the case are borne out by all the other circumstances that are well established. In particular, I most call your attention to the testimony of Hare, that Campbell went out into the passage and called “Police and murder” during the scuffle betwixt him and Burke; and that when Burke began his work of death she gave “a screech.” This is confirmed by Mr. Alston, who providentially arrived in the immediate vicinity at that critical time; and he depones, that when he heard in Burke’s house the sound of a scuffle and fighting, he also heard, first, a female voice calling “Murder” and “Police,” “For God’s sake go for the police, for there is murder here;” and in a few minutes he heard some person or animal give fainter cries, as if it were choking.
This witness is above all suspicion, and corroborates Hare’s edition of the transaction in these most material particulars; and then Burke admits in his declaration many of the facts sworn to by the several witnesses. He admits that he picked the deceased up in Rymer’s shop—that she was in his apartment during the 31st October, and at a late hour that night. He acknowledges that he administered liquor to her, that she lost her life that night in his house, and that next day he had her body packed up in a box and carried to Dr. Knox’s dissecting room, after which he got money from Paterson for it. In these circumstances, is it possible to doubt that he murdered her for the purpose of selling her body? And even from the facts admitted by himself, independently of all other proof, I feel myself warranted to call on you for a verdict of guilty.—That the woman M‘Dougal, who was not bound to him by any legal tie, was guilty art and part, and witnessed and sanctioned the whole proceedings, is equally clear. I, therefore, submit to you, Gentlemen of the Jury, that you ought to give a verdict of guilty against the pannels. And if you do not give a verdict against them, I do not think it possible that in any case I shall ever obtain a verdict against the greatest criminals. The crime now charged is one of unexampled atrocity—unexampled in the history of civilized countries—and the occurrence of which, in this country, in my time, is a circumstance which I deeply deplore.
The Dean of Faculty began his address to the jury at three o’clock on Thursday morning, and at first spoke in a low tone of voice, indicating exhaustion. He addressed the jury nearly as follows, and soon began to speak with his wonted energy:—
Gentlemen,—It is some relief to my mind at this moment, that I shall not have occasion to go over all the mass of evidence which has been laid before you in support of the charge against the prisoners. We have now been seventeen hours engaged in this trial, and, with the exception of a short space consumed in the discussion of the point of form, the whole of that time has been devoted to the hearing of evidence in support of the prosecution. Such a mass of testimony must of itself distract and press heavily upon your minds; but it shall be my endeavour to show you, that, extensive and varied as it is, it does not amount to that legal proof which you require, as a jury, to find a verdict against my client; and that it is wholly destitute of force, on the main, and indeed, the sole fact in the case—that the pannel Burke did commit the crime of murder charged against him in this indictment.
Gentlemen, I do not stand here as the advocate of William Burke’s character. To do so would be to insult you, and to degrade my own profession. But I appear before you as an advocate for the great principle of our law, under which you and I, and all of us, live and repose in safety—the broad and general principle, that no man is to be held guilty of any crime unless his guilt be proved by good and unexceptionable legal evidence,—and to the benefit of this sacred principle my client, however odious, or however abandoned he may be in any other respect, is fully entitled in judging of the case now before you.
The pannel, Burke, labours under great disadvantages—He is avowedly a person who has been engaged in the loathsome and detested occupation of procuring dead bodies for dissection; and this circumstance is calculated to excite prejudice, and ought to guard your minds strongly against being influenced by any feelings, except the convictions of your understandings, and the dictates of your consciences, on a strict and rigorous examination of the evidence which has been laid before you. And I must warn you also against any prepossessions created by what has appeared in newspapers, or otherwise, out of doors. Gentlemen, laying all prejudices and extrajudicial statements aside, and guarded only by the lights of law and of justice, you must look steadily at your duty as jurymen—not to the many irrelevant circumstances which have been this day sworn to, but to the evidence which has been laid before you of a murder having, as is alleged, been committed on the body of Campbell, and committed by my client Burke. Now, I maintain, that of these averments there is no proof at all—for none of the witnesses, except Hare and his wife, swear to that point—and they are so utterly contaminated—and have such strong and obvious motives to criminate my clients in order to screen themselves, that their evidence is of no value whatever. They are incredible as witnesses—and they are in this case the only witnesses. It has been said they corroborate the other witnesses; but this cannot be the case, for there is nothing to corroborate. There is no other evidence of the fact of the murder charged in the indictment but their testimony; and that testimony cannot be believed.
Gentlemen, it is the great and governing principle of our law, that in all cases of alleged murder, the fact of murder must be proved. In the highest species of murder, that of high treason,—that of compassing the death of the King—the overt act must be established by unexceptionable evidence. Constructive treason is not now recognized in our law. In such cases the accused is covered all over with the armour of the law; and to every other case of alleged murder the same principle extends its protecting power. The fact of murder must here be proved; the fact of murder by the hand of Burke—for without that fact being established by good, credible, and unpolluted witnesses, there is here no case, and no evidence whatever, in support of the indictment.