In our last paper we endeavoured to show that his Lordship could not have acted otherwise than he has done. A contemporary of yesterday has reviewed the remarks we then made. After affecting to consider them as coming from a “higher quarter” than ourselves, in order, of course—to secure the greater attention to his own observations—he still contends that the Lord Advocate acted improperly in giving immunity to Hare and his wife, and that if he had not done so, he might have accomplished the conviction of more of the gang than Burke. On a prima facie consideration of the subject, this must appear very unlikely. His lordship was, of course, in possession of all the evidence in its authentic shape, the broken parts of which have been wafted, in an exaggerated form, to the knowledge of the public. He was, perhaps, aware too, that the murders had all been so committed as to preclude the chance of direct evidence of them, except either from Burke or Hare—who were accustomed, according to the recent confession of Burke, to keep even their wives out of the way, on such occasions. Our contemporary has not stated, and we, therefore, imagine, cannot state, that any third party, not of the gang, ever witnessed a single one of the murders, or was ever so connected with their perpetration, as to be able to give any thing approaching to the requisite direct evidence on the subject. He should be prepared to do so, however, before censuring the Lord Advocate for a mode of procedure which may have been, and which, we believe, was wholly unavoidable.
Our contemporary objects to the extent of immunity he supposes to have been given to Hare and his wife. On this point, we should think, he need feel no uneasiness. If king’s evidence was necessary—if without such evidence it be plain from what has occurred on the trial of Burke, that there was more than a chance, a probability even, that the conviction of none of the gang could have been obtained—we may rest assured that the Lord Advocate offered no farther premium on the treachery which he felt to be requisite, for the sacrifice of some of them, than was absolutely necessary to insure it.
But then our contemporary thinks that, at all events, a different selection ought to have been made, and that, by the testimony of M‘Dougal, had she been admitted as king’s evidence, Hare might have been convicted as well as Burke. In our last paper, we stated that M‘Dougal, although not actually married to Burke, had, for ten years, lived with him as his wife, and, in law, therefore, was so, and could not be examined against him; and as the other woman could not, for the same reason, have been examined against Hare—and neither of them could furnish against the husband of the other, that clear and decisive evidence required from socii criminis, to give it sufficient weight; the result of taking them as king’s evidence might, and probably would have been, the escape of the whole four. Burke, however, it seems, has been confessing since his condemnation, and, as one of his confessions is said to lead to an inference that his cohabitation with M‘Dougal could not make her his wife, as either he or she were previously married, and the wife or husband of the former marriage still alive—our contemporary, on the tacit assumption that this even yet mysteriously hinted at fact was or ought to have been known, and capable of proof before the trial—endeavours to give the coup de grace to our argument against the possibility of having made M‘Dougal give evidence against Burke. His attempt to do so is founded on the result of what is generally called, reasoning in a circle, and seems to require no farther notice. His whole argument, indeed, on this part of the subject proceeds on this other assumption, that the Prosecutor, in looking out for king’s evidence, has the selection of it entirely in his own hand. This, we rather think, is but seldom the case; and, where the gang have been connected as husbands and wives, the selection must often be prescribed to him, or made imperative, by circumstances over which he can have no control. Is our contemporary quite sure that the Lord Advocate had not his hands tied, in this way, in the present case?
As to his lengthened argument to show that had the Lord Advocate not moved for judgment against Burke, when found guilty of the last of the three murders charged against him, it would have been competent to have led evidence of the circumstances attending the other two—we would simply ask, cui bono? What good effect could have resulted from the leading of it? Hare and his wife being protected as king’s evidence against the consequences of their participation in them, and M‘Dougal not being charged with them at all, they could only have been proved against Burke. After what had passed, must not this have seemed, in so far as Burke was concerned, to be like the pouring of water on a drowned mouse, and, in so far as the public was interested, to be the exciting of feeling unnecessarily and without object?
Our contemporary, in conclusion, asserts, that whatever immunity the Lord Advocate may have felt it necessary to give to the infamous Hare, the mother of “Daft Jamie,” taking advantage of the disclosures made by that wretch under promise of pardon, is entitled to prosecute him, with the concurrence of the Lord Advocate, which concurrence, in all these circumstances, his Lordship, he says, will be bound to give. This seems very novel doctrine. We can only say, that we should be extremely glad to think our contemporary correct in laying it down; and no man, we are certain, would be more happy to think his reasoning without flaw, than the Lord Advocate.
There is still another point of dittay against his Lordship, an insinuation that he is unwilling to prosecute trains to the knowledge of other murders which are said to have opened to him, and which are reported to implicate other murderers than those already known to the public. Such an insinuation might safely be contemned by any one, and must be far too incredible, when made against his Lordship, to find a couple of ears on the respective sides of the most credulous head in the strongholds of credulity itself, to take it in. The Lord Advocate, we suppose, thinks coolly before he acts—finds out some person to be tried—and on grounds inferring probable conviction, before he institutes the trial; and, as our contemporary admits that he is still proceeding in his investigations, the charge of unwillingness to prosecute, seems, even on his own showing, to be very premature, as well as incredible.
We are satisfied that, in the prosecution of Burke and his associates, and in the investigation of the system of murder with which they have been connected, the Lord Advocate has done, and is doing his duty, ably, impartially, and fearlessly, and that he is entitled to the highest praise instead of the slightest censure. Feeling this to be the case, we cannot withhold our humble effort to make it appear so.
Edinburgh Observer.
The people are not satisfied with the imperfect disclosures that have taken place, and the trivial atonement that is to be made to outraged humanity, by the death of only one of the atrocious gang. There is a cry for blood—more blood—throughout the land; and coming, as it does, from the bulk of the nation, it will require no little discrimination and firmness, on the part of the Public Prosecutor, to see his way clearly, and to keep it when he has found it. A more difficult situation than his, at the present time, we cannot well imagine. Even the activity of the press, in reiterating the calls for further inquiry and for more victims, at the very moment when he is known to be indefatigably employed in prosecuting the one and searching for the other, has greatly contributed to render his duties more harassing and ungracious. Under a sincere, and, despite what others say, we conceive a just impression, that all the monsters might escape the gallows, as one of them has actually done, by a verdict of “not proven,” he permitted two of them to purchase their worthless lives by bearing testimony against their associates. That the Hares obtained this immunity as being the lesser criminals in his estimation, we do not believe. The fact of the particular murder, which led to the whole discoveries, having been perpetrated under Burke’s roof, naturally pointed out him and his guilty partner as the more immediate objects of legal vengeance. It is evident, that throughout the whole business, the Lord Advocate has been actuated by the most honourable anxiety to investigate the affair to the uttermost; and had he not, at the very outset of the trial, been urged into a concession to the legal scruples of the counsel opposed to him, whose eloquence most assuredly reft one wretch from the clutch of the hangman, not merely one, but three acts of the horrid drama would have been publicly revealed. It is stated, that since the trial, his Lordship and his assistants have been unremitting in their inquiries. He has attended almost every precognition, and surveyed in person the foul abodes which the murderers inhabited, and even the dwellings of their victims. But he refuses to violate the public faith, of which, in this instance he is the custodier, by yielding up the tools he has been forced to employ, to that punishment which they have so abundantly merited, yet from which the nation stands pledged they are redeemed. God forbid that we should advocate the indemnity of these monsters on any ground, save the sanctity of such a pledge. We question greatly, whether Hare and his partner, cast upon the world with ignominy and crime branded on their foreheads, are not more condignly punished, than the wretched man whose days are numbered, and whose doom, it is certainly not uncharitable to predict, will yet overtake them. In the case of Weare’s murder, Probert, one of the accessaries, was admitted to a like immunity. When his foul breath had consigned one of his associates to the gallows, he was allowed to go forth into the world a free man; but, like Cain, he found himself an outcast, and, in the course of a few months, was again arraigned as a felon, convicted, and executed.
Though we dissent from the summary mode of procedure which many people recommend, and conceive that it would be a perilous innovation on the prerogative of the Public Prosecutor to say, that in this instance, his pledge of immunity shall be disregarded, unless some new charge can be substantiated, we view the detestation so unaffectedly expressed by the public towards the whole gang, as consolatory to humanity. Had criminals, with hands so deeply dyed in blood, found even one commiserator or advocate beyond the walls of the Court of Justice—had any man ventured to whisper that the crimes which they have perpetrated are not worthy of death—nay, had not the whole nation lifted up its voice, and declared, that even death itself was but a miserable atonement for crimes so monstrous, we should have regarded it as a national disgrace. It is to be hoped, however, that this laudable spirit will not degenerate into tumultuary violence. The authorities, we are satisfied, will not relax their efforts to develope the whole of these sanguinary atrocities; and, if the correspondence which is at present carrying on between the Lord Advocate and the teachers of anatomy should, in conjunction with other investigations in progress, lead to the inculpation, in the remotest way, of any individual, we are satisfied that nothing will shield the culprit from the vengeance of the law, be his rank or previous respectability what it may. As yet only one individual of that body has been in any way implicated in these horrible transactions; and we know that a feeling is prevalent that he has been treated with greater delicacy than he deserves; but the culpability of one man must not be received as condemnatory evidence against a whole tribe. An earnest desire is entertained by the teachers of anatomy that the fullest investigation should take place; and if criminal laxity in the receipt of subjects can be traced to any particular quarter, an ample exposition will follow. This exposition they are entitled to demand; for the reputation of the whole fraternity is perilled by the revolting suspicions which the crimes of their caterers have engendered.