“William Burke and Helen M‘Dougal, both present prisoners in the tolbooth of Edinburgh, you are both and each of you indicted and accused at the instance of Sir William Rae of St. Catherine’s, Baronet, his Majesty’s Advocate for his Majesty’s interest: that albeit by the laws of this and of every other well-governed realm, Murder is a crime of an heinous nature, and severely punishable, yet true it is and of verity that you the said William Burke and Helen M‘Dougal are both and each, or one or other of you, guilty of the said crime, actors or actor, or art and part: In so far as, on one or other of the days between the 7th and the 16th days of April, 1828, or on one or other of the days of that month, or of March immediately preceding, or of May immediately following, within the house in Gibb’s Close, Canongate, Edinburgh, then and now or lately in the occupation of Constantine Burke, then and now or lately scavenger in the employment of the Edinburgh Police Establishment, you the said William Burke did wickedly and feloniously place or lay your body or person, or part thereof, over or upon the breast, or person, and face of Mary Paterson or Mitchell, then, or recently before that time, or formerly, residing with Isabella Burnet or Worthington, then and now or lately residing in Leith Street, in or near Edinburgh, when she, the said Mary Paterson or Mitchell was lying in the said house in a state of intoxication, and did, by the pressure thereof, and by covering her mouth and nose with your body or person, and forcibly compressing her throat with your hands, and forcibly keeping her down, notwithstanding her resistance, or in some other way to the prosecutor unknown, preventing her from breathing, suffocate or strangle her; and the said Mary Paterson or Mitchell was thus by the said means, or part thereof, or by some other means or violence, the particulars of which are to the prosecutor unknown, wickedly bereaved of life, and murdered by you the said William Burke; and this you did with the wicked aforethought intent of disposing of, or selling the body of the said Mary Paterson or Mitchell, when so murdered, to a physician or surgeon, or some person in the employment of a physician or surgeon, as a subject for dissection, or with some other wicked and felonious intent or purpose to the prosecutor unknown. (2.) Further, on one or other of the days between the 5th and 26th days of October 1828, or on one or other of the days of that month, or of September immediately preceding, or of November immediately following, within the house situated in Tanner’s Close, Portsburgh, or Wester Portsburgh, in or near Edinburgh, then or now or lately in the occupation of William Haire or Hare, then or now or lately labourer, you the said William Burke did wickedly and feloniously attack and assault James Wilson, commonly called or known by the name of Daft Jamie, then or lately residing in the house of James Downie, then and now or lately residing in Stevenlaw’s Close, High Street, Edinburgh, and did leap or throw yourself upon him, when the said James Wilson was lying in the said house, and he having sprung up you did struggle with him and did bring him to the ground, and you did place or lay your body or person or part thereof, over or upon the person or body and face of the said James Wilson, and did, by the pressure thereof, and by covering his mouth and nose with your person or body, and forcibly keeping him down, and compressing his mouth, nose, and throat, notwithstanding every resistance on his part, and thereby, or in some other manner to the prosecutor unknown, preventing him from breathing, suffocate or strangle him; and the said James Wilson was thus, by the said means, or part thereof, or by some other means or violence, the particulars of which are to the prosecutor unknown, wickedly bereaved of life and murdered by you the said William Burke; and this you did with the wicked aforethought intent—[the intent specified in the same language as under the first minor charge]. (3.) Further, on Friday the 31st day of October, 1828, or on one or other of the days of that month, or of September immediately preceding, or of November immediately following, within the house then or lately occupied by you the said William Burke, situated in that street of Portsburgh or Wester Portsburgh, in or near Edinburgh, which runs from the Grassmarket of Edinburgh to Main Point, in or near Edinburgh, and on the north side of the said street, and having an access thereto by a trance or passage entering from the street last above libelled, and having also an entrance from a court or back court on the north thereof, the name of which is to the prosecutor unknown, you the said William Burke and Helen M‘Dougal did, both and each, or one or other of you, wickedly and feloniously place or lay your bodies or persons, or part thereof, or the body or person, or part thereof, of one or other of you, over or upon the person or body and face of Madgy or Margery, or Mary M‘Gonegal or Duffie, or Campbell, or Docherty, then or lately residing in the house of Roderick Stewart or Steuart, then and now or lately labourer, and then and now or lately residing in the Pleasance, in or near Edinburgh, when she the said Madgy or Margery, or Mary M‘Gonegal or Duffie, or Campbell, or Docherty, was lying on the ground, and did, by the pressure thereof, and by covering her mouth and the rest of her face with your bodies or persons, or the body or person of one or other of you, and by grasping her by the throat, and keeping her mouth and nostrils shut with your hands, and thereby, in some other way to the prosecutor unknown, preventing her from breathing, suffocate or strangle her; and the said Madgy or Margery, or Mary M‘Gonegal or Duffie, or Campbell, or Docherty, was thus by the said means, or part thereof, or by some other means or violence, the particulars of which are to the prosecutor unknown, wickedly bereaved of life, and murdered by you the said William Burke and you the said Helen M‘Dougal, or one or other of you, and this you both and each, or one or other of you, did with the wicked aforethought intent—[the intent specified in the same language as under the first and second minor charges]. And you the said William Burke, having been taken before George Tait, Esq., sheriff-substitute of the shire of Edinburgh, you did, in his presence, emit and subscribe five several declarations, of the dates respectively following, viz.:—the 3rd, 10th, 19th, and 29th days of November, and 4th day of December, 1828; and you the said Helen M‘Dougal having been taken before the said sheriff-substitute, you did, in his presence, at Edinburgh, emit two several declarations, one upon the 3rd, and another, upon the 10th days of November, 1828; which declarations were each of them respectively subscribed in your presence by the said sheriff-substitute, you having declared you could not write: which declarations having to be used in evidence against each of you by whom the same were respectively emitted; as also the skirt of a gown, as also a petticoat, as also a snuff-box, and a snuff-spoon; a black coat, a black waistcoat, a pair of moleskin trowsers, and a cotton handkerchief or neckcloth, to all of which sealed labels are now attached, being to be used in evidence against you the said William Burke; as also a coarse linen sheet, a coarse pillow-case, a dark printed cotton gown, a red striped bed-gown, to which a sealed label is now attached; as also a wooden box; as also a plan entitled ‘Plan of Houses in Wester Portsburgh and places adjacent,’ and bearing to be dated ‘Edinburgh, 20th November 1828,’ and to be signed by James Braidwood, 22, Society; being all to be used in evidence against both and each of you the said William Burke and Helen M‘Dougal, at your trial, will, for that purpose, be in due time lodged in the hands of the Clerk of the High Court of Justiciary, before which you are to be tried, that you may have an opportunity of seeing the same; all which, or part thereof, being found proven by the verdict of an assize, or admitted by the respective judicial confessions of the said William Burke and Helen M‘Dougal, before the Lord Justice-General, Lord Justice-Clerk, and Lords Commissioners of Justiciary—you, the said William Burke and Helen M‘Dougal ought to be punished with the pains of law, to deter others from committing the like crimes in all time coming.”
The list of witnesses attached to this very formidable document showed the names of fifty-five persons; and there was, also, a list of forty-five persons called for the jury from the city of Edinburgh, town of Leith, and counties of Edinburgh, Linlithgow and Haddington.
CHAPTER XX.
Public Anticipation of the Trial—Appearance of Burke and M‘Dougal in the Dock—Opening of the Court—The Debate on the Relevancy of the Indictment.
As the day fixed for the trial drew near, the public excitement became more and more intense. The feeling against the culprits was very strong, and while the statement that Hare and his wife were to be accepted as informers was received with a notion of displeasure, it was thought that the revelations they would make would fully compensate for the loss to justice by their escape from punishment. This displeasure was not as yet very definite, for the people were unaware of the real facts of the case, and had only a very hazy and general idea of what was likely to be brought out in court. The public feeling, however, ran so high that the authorities deemed it necessary to take every precaution to prevent a disturbance, and on the evening before the trial the High Constables of Edinburgh were ordered to muster; the police were reinforced by upwards of three hundred men; and the infantry in the Castle and the cavalry at Piershill were held in readiness for any emergency. The trial and its possible outcome was all the talk, and the revelations about to be made were eagerly anticipated.
Early on the morning of Wednesday the 24th December, Burke and M‘Dougal were conveyed from the Calton Hill Jail, where they had been confined, and were placed in the cells beneath the High Court of Justiciary in Parliament Square until the time for the hearing of the case should come. The inhabitants of the city were also early afoot, and crowded to the square anxious to gain admittance to the court-room. “No trial,” said the Edinburgh Evening Courant of the following day, “that has taken place for a number of years past has excited such an unusual and intense interest; all the doors and passages to the court were accordingly besieged at an early hour, even before daylight; and it was with the utmost difficulty, and by the utmost exertions of a large body of police, that admission could be procured for those who were connected with the proceedings. At nine o’clock the court-room was completely filled by members of the faculty and by the jury. Lord Macdonald and another noble lord were seated on the bench.” At twenty minutes to ten o’clock the prisoners were placed in the dock, and this is the description of them given by the Courant:—“Burke is of a short and rather stout figure, and was dressed in a shabby blue surtout. There is nothing in his physiognomy, except perhaps the dark lowering of the brow, to indicate any peculiar harshness or cruelty of disposition. His features appeared to be firm and determined; yet in his haggard and wandering eye, there was at times a deep expression of trouble, as he unconsciously surveyed the preparations which were going forward. The female prisoner appeared to be more disturbed; every now and then her breast heaved with a deep-drawn sigh, and her looks were desponding. She was dressed in a dark gown, checked apron, cotton shawl, and a much worn brown silk bonnet.” The audience eagerly scanned the features of the prisoners, and watched their every movement, during the half-hour that elapsed between their being placed in the dock and the judges ascending the bench. At ten minutes past ten o’clock their lordships took their seats. These were—the Right Hon. David Boyle, Lord Justice-Clerk; and Lords Pitmelly, Meadowbank, and MacKenzie. The Crown was represented by Sir William Rae, Bart., Lord Advocate; and Messrs. Archibald Alison, Robert Dundas, and Alexander Wood, Advocates-depute; with Mr. James Tytler, W.S., agent; while the counsel for Burke were the Dean of Faculty, and Messrs. Patrick Robertson, Duncan M‘Neill, and David Milne; and for M‘Dougal, Messrs. Henry Cockburn, Mark Napier, Hugh Bruce, and George Paton, with Mr. James Beveridge, W.S., one of the agents for the poor. There were thus the best men of the Scottish bar engaged in the trial. The defence, of course, had been undertaken gratuitously by these eminent counsel, but the sequel showed that it suffered nothing at their hands on that account.
The court was fenced in the usual form, and the Lord Justice-Clerk, as the presiding judge, called upon the prisoners to pay attention to the indictment to be read against them. Mr. Robertson, however, interposed by stating that there was an objection to the relevancy of the libel, and he submitted it was proper to make such an objection at this stage of the proceedings. The Lord Justice-Clerk did not see that this was the proper time, but Mr. Cockburn urged that the reading of the document would prejudice the prisoners in respect of certain particulars which he was certain the court would ultimately find were no legal part of the libel. On Lord Meadowbank hinting that an objection at that stage was interfering with the discretion of the court, Mr. Robertson intimated he would not press the matter further, and the indictment was accordingly read.
When this was done, the following special defences were submitted to the court:—For Burke—“The pannel pleads that he is not bound to plead to, or to be tried upon, a libel which not only charges him with three unconnected murders, committed each at a different time, and at a different place, but also combines his trial with that of another pannel, who is not even alleged to have had any concern with two of the offences with which he is accused. Such an accumulation of offences and pannels is contrary to the general and better practice of the court; it is inconsistent with the right principle; and, indeed, so far as the pannel can discover, is altogether unprecedented; it is totally unnecessary for the ends of public justice, and greatly distracts and prejudices the accused in their defence. It is therefore submitted, that the libel is completely vitiated by this accumulation, and cannot be maintained as containing a proper criminal charge. On the merits of the case, the pannel has only to state, that he is not guilty, and that he rests his defence on a denial of the facts set forth in the libel.” For M‘Dougal the defence was—“If it shall be decided that the prisoner is obliged to answer to this indictment at all, her answer to it is, that she is not guilty, and that the Prosecutor cannot prove the facts on which his charge rests. But she humbly submits that she is not bound to plead to it. She is accused of one murder committed in October 1828, in a house in Portsburgh, and of no other offence. Yet she is placed in an indictment along with a different person, who is accused of other two murders, each of them committed at a different time, and at a different place,—it not being alleged that she had any connection with either of these crimes. This accumulation of pannels and of offences is not necessary for public justice, and exposes the accused to intolerable prejudice, and is not warranted, so far as can be ascertained, even by a single precedent.”