The Caledonian Mercury.

In a contemporary journal of Friday last, we observe an article entitled “The West Port Murders,” which we think deserving of our special notice; and as it is substantively an answer to our legal argument respecting the liability of Hare to be tried for the murders of Mary Paterson and Daft Jamie, as well as a defence of the Public Prosecutor, for declining to bring any more of “the horrid gang of murderers” to trial, we feel ourselves called upon to reply to it. In doing so, however, we shall not fail to keep in mind that we have to deal with a question of law and of fact merely, and that, differing as we do toto coelo, from the Lord Advocate, in the view which he has taken of his duty upon this occasion, there is but one opinion as to the purity and uprightness of the motives by which he has been actuated, and of his desire, (unless opposed by technical difficulties,) to afford the fullest satisfaction to the public. His Lordship, to his infinite honour, has uniformly paid attention to the strongly expressed sentiments of the country.

The article in question sets out as follows,—for quotation see pages 141 and 142, paragraph commencing, “Much dissatisfaction, &c.

Now, we contend that this is altogether erroneous in point of law, and that the writer, in order to arrive at his conclusion, has confounded two things perfectly distinct, viz. the legal effect of a verdict of conviction before sentence, and the legal effect of such conviction after the Court has been moved to pronounce judgment; and after a sentence has been passed sinking the caput of the prisoner. It is quite clear in law, that even a conviction, upon a capital charge, does not and cannot destroy the status of the prisoner; and for this reason, that the verdict may be special, or inapplicable, or it may find something different from the facts charged, or it may involve a conclusion which is inept in law, so that, upon a motion in arrest of judgment, no sentence can pass upon it. Instances of this kind constantly occur; and every one who is acquainted with the books of criminal law, must be familiar with many of them. It follows, therefore, that if an objection were proponed upon any of these grounds, and sustained by the Court, the prisoner would fall to be dismissed simpliciter from the bar. But until the Court be moved for judgment, it cannot be known whether such an objection may not lie; and, consequently, it is manifest that a mere conviction, however valid it may ultimately be found, does not and cannot affect the status or destroy the caput of the prisoner, which is the joint result of the verdict and the sentence. Hence, we contend that the writer before us labours under a complete mistake in supposing that the decision of the Court “in restricting the Prosecutor to the proof of one of the three charges exhibited against Burke was attended with the necessary effect of preventing the disclosure of the circumstances connected with the other two murders,” and that, “after Burke had been convicted under the third charge, it was out of the question to proceed to try him a second and a third time on the two previous accusations.” As matters turned out, it was indeed out of the question to try Burke a second and a third time for the other two murders. But how was it out of the question? Solely on account of the error committed by the Prosecutor himself in moving and obtaining the sentence of the Court on the verdict of conviction which had been returned by the Jury on the third charge, namely, the murder of the woman Docherty: For the moment Burke was condemned to die, his caput was destroyed,—he was dead in law, and had no longer a persona standi in judicio; consequently, after such conviction and sentence, it was clearly “out of the question to proceed to try him a second and a third time on the two previous accusations.” But we have some confidence that no lawyer will maintain the incompetency of proceeding to try Burke upon these charges, had the Lord Advocate rested satisfied with the conviction he had obtained, and delayed moving for sentence. We will not argue a point so clear as this. It is evident to us that the dilemma in which the Prosecutor has placed himself is the consequence of his own blunder, and that Burke might have been tried on twenty separate charges, if the indictment had contained so many, but for the error committed by his Lordship himself in moving the Court for judgment, and thus destroying the prisoner’s civil personality, and, of course, his persona standi in judicio.

After stating, what is perfectly true, that “the limited nature of the disclosure thus produced has naturally led the public, in the present state of excited feeling, to call for the farther trial and punishment of this atrocious gang,” the writer then proceeds to say:—See paragraph on page 142, commencing “We have heard, however,” &c. to end of the article.

Now, our readers will perceive that this just comes, in substance, to the fact stated by implication in our Saturday’s publication, that Hare and his wife were admitted to “peach” upon a promise of impunity and protection. But were the circumstances such as to warrant the Public Prosecutor in giving such a promise, or accepting disclosures from Hare in regard to the murders of Mary Paterson and Daft Jamie, calculated to embarrass him in dealing with these miscreants, or to tie up his hands altogether from proceeding against them on account of these horrid crimes? We maintain there were no such circumstances, and our reasons for thinking so are already partly before the public. The defender of the Lord Advocate says, indeed, that “there were just four persons engaged in these horrid deeds, viz. Hare and his wife, and Burke and M‘Dougal,” and that if all four had been indicted, “it is obvious that the evidence against them would have been merely presumptive, and considering the difficulty experienced even in convicting Burke, when two eye-witnesses swore to the way in which the deed was done, it is plain that all the four would have been acquitted.” Now, all this is very loosely and inaccurately stated;—for, in the first place, the Lord Advocate knows as well as we do, that instead of four, there were at least seven persons concerned either as principals or accessaries in these murders; secondly, that independently of the testimony of Hare and his wife, there was more than “presumptive evidence” inasmuch as he himself rested the case against Burke on the other evidence adduced, exclusive of Hare and his wife altogether; thirdly, that the Jury paid no regard whatever to the testimony of these wretches, yet convicted Burke of the charge libelled; and, lastly, that no other difficulty was experienced in obtaining this conviction than arose from the Prosecutor having to contend with the great talents of the Counsel arrayed for the defence, or were inseparable from a protracted investigation into a great body of circumstantial evidence. How, then, can it be maintained, that if Hare and his wife had been included in the indictment with Burke and M‘Dougal, the whole four would have been acquitted? It is said, indeed, that these miscreants, particularly the former, made such disclosures in relation to the murders of Mary Paterson and Daft Jamie, as renders it now impossible to bring them to trial for these assassinations; but even admitting this to the fullest extent, it is not pretended that they made any disclosures connected with the murder of Docherty; and as their testimony proved of no avail in facilitating or insuring a conviction against Burke, the necessary inference is, that the Prosecutor mismanaged his case in not including them in the same indictment with their associate and accomplice for that offence at least. But if people will not seek for evidence they cannot find it. Why was Falconer not sought out and brought forward? Had the Prosecutor apprehended this fellow and Paterson, and afterwards admitted them as king’s evidence, there would have been no want of proof to convict the whole operative part of the gang, if not to go even farther than this. The teachers of anatomy ought also to have been examined. They had it in their power to tell much that had come to their knowledge, and to point out channels by which more might have been discovered. Information of the most valuable description might have been obtained from them, had it been required; information, which they were willing and anxious to give, and which, we rejoice to learn, the Prosecutor is now taking the proper means to obtain.

In the paragraph above quoted there are some errors in point of fact, which are the more material and germane to our view of the case, because the mind of the Public Prosecutor may have been misled by them, and his course of conduct influenced by the misconceptions under which he laboured. First of all it is stated that M‘Dougal, “though not actually married to Burke, had lived with him as his wife, and had borne his name for ten years, and was thus legally his wife.” In his “confessions,” Burke states himself to have been living in notour adultery, which of course could only be the case upon the supposition that a former wife of his own was alive; which we understand to be the fact. M‘Dougal’s connection with Burke, therefore, was not of such a nature as legally to disqualify her for giving evidence against him. Next, the writer is misinformed when he says that Hare “was not the leader of the gang.” Further investigation, we are convinced, will prove the contrary. Hare was engaged in this horrid traffic before he formed an alliance with Burke; and although the superior appearance, address, and physical strength of the latter, led him to act as the decoy, and to take a conspicuous share in the perpetration of the murders, Hare, we are satisfied, was his master and his tempter, as he is known to have been his constant associate in all the murders he committed, except, perhaps, one, which Burke alleges Hare did by himself when he was in the country. It is really melancholy to “hear,” therefore, “that no farther trials will take place,” and that, as far as the Prosecutor is concerned, Hare and his wife are now free from all challenge.

Happily, however, there is one method by which they may still be brought to justice. The mother of Daft Jamie is alive; and it is competent for her to prosecute for the murder of her son, upon obtaining the concourse of the Public Prosecutor, which his Lordship cannot withhold. This, we understand, is a settled point, and we know of a case in which a private party similarly circumstanced came forward. It was in consequence of several persons being shot, in Aberdeen, on the late king’s birth day, Captain M‘Donach was that day the officer on duty, and gave the orders to the military to fire upon the mob, in consequence of which several persons were killed. Politics then ran high, and his Majesty’s Advocate refused to bring the Captain to trial. But a private party came forward; his Lordship was obliged to grant his concourse; and Captain M‘Donach was put upon his trial. The Hon. Henry Erskine conducted the case for the prosecution; but in spite of all his efforts the Jury acquitted the prisoner. We do not remember how the instance was laid, and we have not time at present to consult the authorities. We are quite certain, however, as to the main fact, that the prosecution was brought by a private party, with concourse of his Majesty’s Advocate, after that Functionary had refused to prosecute in his own name. Now, the inference we draw from this is, that the mother of Daft Jamie ought to come forward upon this occasion; and in order to enable her to do so, a subscription should be immediately opened for raising the necessary funds to defray the expense of the trial. Were this done, hundreds, nay thousands would subscribe to enable her to prosecute; and we are satisfied that the Lord Advocate would not only not refuse his concourse, but would be pleased and gratified with a proceeding calculated to relieve him from the embarrassments with which he is at present surrounded.

Edinburgh Advertiser.

The Lord Advocate is blamed, not only for not having possessed the gift of “second-sight,” and discovered sooner that Burke and Hare, and their two wives, were murderers. He is blamed in the second place, for having been able to procure the conviction of only one of the gang. Hare and his wife, it is said, ought not to have been made King’s evidence. There was enough of evidence, we are told, against their associates without them; and we are desired, therefore, to adopt the conclusion, that they were improperly screened from punishment, by being invested with the character of witnesses. This is really too much. But some persons, when disposed to find fault, require, in the language of the proverb, “but a hair to make a tether.” It has proved so, in the present instance. A better arranged case of proof, circumstantial and direct, has seldom, perhaps, been laid before a jury, than that which was submitted to the jury on the trial of Burke and M‘Dougal. A train of more clearly delivered and unshakenly adhered to testimony, on the part of the unexceptionable witnesses, has seldom been listened to. Yet, even when aided by the direct testimony of Hare and his wife, for whose evidence we are told there was no necessity, a jury, including individuals of the most respectable character, unanimously found the charge not proven against M‘Dougal, while, at least, two of them, it is asserted, contended for a similar verdict even against Burke himself. Had Hare and his wife, therefore, not been witnesses, there is the best reason for supposing that the conviction of none of the four would have been obtained. It is surprising that, in such a state of facts, the Lord Advocate should be accused of having acted improperly in admitting these miscreants to the privileges of king’s evidence.