There are many flaws and inconsistencies in the whole of the evidence; and Hare and his wife not only contradict each other in several instances, but the statements of both are contradicted by other witnesses who also contradict one another. Thus Mary Stewart swears that Campbell left her house in the Pleasance, betwixt 7 and 8 o’clock on the morning of Friday, 31st October, while M‘Lachlan swears that it was between nine and ten. William Noble says it was on that Friday morning about breakfast-time that Burke and the woman Campbell met in his master’s shop; but Mrs. Connaway says it was mid-day when they entered Burke’s house to breakfast, and Mrs. Law makes it two in the afternoon. But this is nothing to the contradictory testimonies of Hare and his wife themselves, as to the scenes in Burke’s house. Hare swears that at the time of the scuffle the old woman went out into the passage and cried “police,” and “murder;” but his wife swears that she never went out of the inside door, nor cried out at all. And the wife even contradicts herself; for at another part of the evidence she says that Campbell did call out “murder.” Again, Hare says that when Burke was above Campbell on the floor, and when his wife and M‘Dougal heard the first screech, they leaped out of bed and ran into the passage; but the wife says that she was not in the bed when Burke was lying on the old woman, but standing between the door and the bed. And after all the scenes which they pretend to describe with such accuracy and truth, Hare says that he did not go to bed, but slept on a chair with his head on the bed, the two women and Broggan being in the bed, and Broggan being next to his aunt M‘Dougal; while the wife swears that she, Broggan, and M‘Dougal, lay down upon the floor, and the men, Burke and Hare, slept in the bed, the dead body being underneath it; and Broggan gives an account of the matter differing entirely from both, for he says that he and the men lay on the floor at the fireside, while the two women were in bed. Then as to the proceedings of Saturday, we have a similar tissue of contradictions. Hare swears that Burke took the body from under the bed, and the porter helped him to put it into the box. But M‘Culloch swears that he did not assist in putting the body into the box—that he did not see a body at all, but something in a sheet, and that he only thought it was a body, because he saw some hair sticking out after this something was crammed into the box. Further, as to the settlement of the price by Paterson, we have more contradiction. Paterson swore that he had seen both Hare and Burke dealing with Dr. Knox about dead bodies: that he had been directed by the doctor to divide the L.5 betwixt them to prevent them from quarreling, as they had done formerly: that he took them to a public-house and got change, and gave each L.2, 10s., that they left something for the porter, and that the whole price of the body was L.8. Now Hare swears that Paterson gave the porter 5s., and each of the others L.2, 7s. 6d., and that the price of the subject was L.10. But Hare, on cross-examination, said it was from Burke, not Paterson, that he got the L.2, 7s. 6d. Paterson says that he gave each of Burke and Hare L.2, 10s. and that they paid the porter; but the porter himself swears that it was Paterson who paid him, so that all these witnesses, Paterson, M‘Culloch, and Hare, prevaricate and contradict each other in the clearest and most unequivocal manner.
Paterson, who was questioned as a person having medical and anatomical knowledge, as to the appearance of the body, deponed, that the eyes did not project when the subject was taken from the box, and Dr. Black swore that the eyes were nearly started from the sockets, and he further said that Docherty’s appearance was very much the same with that of persons brought to the police office who had been suffocated with drink; and he declared he was afraid to hazard an opinion whether her death had been occasioned by violence. Dr. Christison merely stated his opinion that it was probable she had suffered a violent death; but there never were medical opinions on the whole so various and inconclusive in support of a libel for murder.
These particulars in the evidence may appear trivial; but in a case of circumstantial evidence, the most trivial circumstance is often of the greatest importance in judging of a witness’s credibility; and when you find among so many of the witnesses in this case such a cluster of inconsistencies and contradictions;—when you remember the nature of the occupations in which these witnesses are avowedly engaged, and consider the motives by which they must be actuated, to whitewash themselves as far as possible by inculpating the pannels, it is utterly impossible you can give credence to their testimonies, or listen to it for one moment as the evidence of witnesses upon which you can with a safe conscience give a verdict against the pannels. The Dean concluded by urging the jury to keep in mind the general principle on which the safety of every man in society rested, and the necessity of the murder being proved upon better evidence than that of such nefarious witnesses.
Mr. Cockburn, for the pannel M‘Dougal, said, that in pleading her defence, it was only necessary for him to assume what was contrary to the fact, that the Public Prosecutor had succeeded in establishing the guilt of the other pannel Burke; a proposition which no one would maintain after listening to the powerful argument of his friend the Dean of Faculty. But he would assume that the guilt of Burke was established, and what followed? Not that the other pannel M‘Dougal had aided and assisted in that murder, but that she fled from the scene described by Hare, and did not even witness the atrocities of which that monster held himself out as a willing and passive spectator. Although it were correct and credible, it proves nothing against M‘Dougal. But to talk of their credibility was a sporting with men’s lives and a mockery of justice. The evidence of these miscreants could not be received in the same manner as the evidence of an honest person. Their character was written in characters of blood, that never could be effaced from the recollection of those who heard their horrid narrative. Could they conceive that an accessory to murder was worthy of credit?—and yet the law made him an admissible witness. The man who was the chief evidence in a trial for the crime of murder,—who had told that he sat on a chair within a yard of the murdered and murderer, and raised not an arm, nor uttered a cry to save the unhappy victim calling for help and struggling with the assassin in the last agonies of life;—which was the most guilty,—the cool, cold-blooded spectator of the foul murder—or the actor, whose physical exertions would, in such an awful moment, impart phrenzy to his mind? There were certain questions which he had felt it his duty to put to Hare; but which he warned him he need not answer unless he chose. “I asked him,” said Mr. Cockburn, “if he had been concerned in other murders; but he declined to answer. I asked him whether a murder was committed in his own house in October last; and again that monster took shelter in his privilege. In what situation was that man placed when he gave his evidence? There were other murders hanging over his head, upon which he might be libelled; he came from the jail and would be returned to it,—knowing full well, that, if the case failed, he might be called upon to descend from the witness-box, to take, along with his wife, his place at the bar—in short, to exchange places with the pannels. And if they were the pannels, and Burke and M‘Dougal the witnesses, then would the true state of the case appear and the present witnesses would be proved the guilty perpetrators. The monster had come that very day out of jail, to which he would be again consigned if he failed to make them (the Jury) believe his story.” He (Mr. C.) had often heard of King’s evidences, or approvers, in crimes to which they had been accessories; but of persons coming to give evidence with other crimes of a similar nature hanging over their heads, the very idea was horrible. If Hare and his wife had stood at the bar, and made a judicial confession of participation in the crimes which they had stated from the witness-box, sentence of conviction, legally disqualifying them, would have been recorded; but being allowed to make their confession from the box, they were not only freed from the crime, but cleared to the effect of being converted into good and credible witnesses. But what could a jury think of the evidence of the man who came forward and said, “I have been guilty of one murder, but want to free myself from blame by impeaching another who was not probably so guilty?” They had seen the squalid wretch—the very picture of his revolting traffic—a visible spectacle of penury and profligacy.
And then, as to Hare’s wife; Mr. Cockburn said he did not know whether or not the Lord Advocate had any skill in physiognomy. Perhaps the Lord Advocate liked her face—a good one for a King’s evidence;—but as his Lordship’s back was towards the witness, he did not perhaps see that woman’s face so well as he (Mr. C.) did. To him it appeared, that on that countenance every evil passion was imprinted. She stood in that box, with a miserable child in her arms, the blighted creature of vice and misery; and, instead of casting upon it a look of maternal tenderness in its distress, she evinced a harshness and brutality, and seemed to eye it in such a manner as added to her malign aspect. He would say, without fear of contradiction, that he never had, in the course of his practice, seen such wretches placed in the witness box. The learned gentleman alluded to the declarations, and said, if the jury allowed their minds to be influenced by the statements of those documents, the pannels would be legally murdered.
And in the conclusion of his speech, Mr. Cockburn addressed the jury in a tone of peculiar eloquence and impressiveness: “If, Gentlemen, (said he,) you have any doubts—you must give the pannels the benefit of those doubts;—and after seeing the exhibition, and hearing the testimonies of Hare and his wife this day as witnesses—good God! can you say there are no doubts? It is the duty of the Public Prosecutor to prove his case by good evidence. He has produced a horde of wretches who are a pollution to any evidence. The Hares, the Grays, the Connoways, M‘Cullochs, and Brogans, the whole host of witnesses to every material circumstance in the proof are polluted. Talk not of suspicions of dangers to the public—for in my mind no greater danger can be imagined than that of a criminal verdict on doubtful and polluted evidence. Though the town should ring with clamours and the country resound with them, you are only called on the more strongly to discharge your duty manfully, by the exercise of your own judgment, and the dictates of your consciences—banishing from your minds every prejudice, and looking well to the nature of the evidence on which you are called to condemn a fellow-creature to death—recollecting too, that when the public mind is agitated and disturbed, it is the Courts of Law, and the Juries of our country, who hold in their hands the balance of justice—and that when the storm is up, and popular prejudice and passion rage around, the louder is the call for an enlightened and intrepid discharge of your duty.” He concluded by craving an acquittal of M‘Dougal from the charge made against her.
The Lord Justice Clerk began his charge to the Jury at six o’clock on Thursday morning, and finished about half-past eight. His Lordship expressed great satisfaction at the defence having been committed to such eminent counsel; for he could assure them (the jury) he never had heard the defence of any individuals conducted with more zeal and consummate ability than that of the prisoners. There was another consideration which he was called upon to bring under their notice; namely, to express his thorough confidence that they would divest their minds of every impression or prejudice which might have been raised from what they had read or heard out of doors. It would be a matter of infinite regret, if writings or publications, or any sort of public feeling, should for one instant affect their minds; but he was sure they knew their duty too well, to be influenced by prejudice; they would be guided by nothing but the facts as disclosed during the investigation.
The evidence was partly circumstantial, and partly direct. The first was composed of a number of minute facts and circumstances; and the latter of the testimony of socii. It would be their duty,—First, to consider the general evidence; Secondly, that of the socii; and, Thirdly, the combined effect of both conjoined. From these, the verdict, upon a fair inference drawn from a consideration of the whole, would be made up. His Lordship then directed the attention of the Jury to the way and manner the old woman, Campbell, had been bereaved of life, informing them, that if they were satisfied she had not died in consequence of violence, there would be an end of the inquiry. If they held the contrary opinion, they would proceed to consider, whether she had lost her life by the hands of the prisoners, or one or other of them.
The evidence of the identity of her person was the first branch of the investigation. His Lordship then went over the whole evidence with great minuteness, commenting upon those parts where there were seeming contradictions, or which had been specially alluded to by the Public Prosecutor, or the counsel for the pannels, in the course of the defence, but it is unnecessary to recapitulate his Lordship’s detail, as the reader has the whole evidence itself before him.
With respect to the socii, his Lordship said they were entitled to credit, if they gave a true account of the transaction of which they spoke. He admitted they were not placed in the same situation with persons against whom no suspicion existed; but it was the duty of the jury to sift their evidence, and in as far as it was corroborated by good evidence, it was entitled to such a measure of credibility as they in their consciences thought it merited. They had been told of the Hares being connected with other murders. With what murders they might be chargeable, he did not know; but to a certainty, they could not be libelled on either of the charges contained in the libel now under trial, and which had not been sent to the jury. It was, therefore, unfounded in law to say, that these two persons were liable to be tried for the two murders contained in the indictment. These individuals, who were under the protection of the Court, had been called as accomplices, in the same manner as associates in robbery, wilful fire-raising, and other capital crimes. With respect to M‘Dougal, his Lordship was understood to express his opinion, that if the evidence was to be believed, she had been an accessory before the commission of the crime, during its commission, and after it was committed; and, upon the whole, he considered the libel as made out against both.