Mr. Robertson then went into a long and learned argument in support of these defences. He submitted that both prisoners were prejudiced by being charged together in the same indictment, for they were both put off their guard as to the evidence and productions to be brought against them, and he further pointed out that in respect of the choice of a jury the accused were deprived of advantages given them by the law. If the charges had been separated they would have been able to make a more complete defence, and they would have had twenty challenges at the calling of the jury; but as it was, by the accumulation of pannels and offences, their defence was hampered and their number of challenges limited. He quoted in his favour both Scotch and English authorities—apologising, however, for bringing forward the latter—and in concluding said—“When your lordships look, then, at this case, in all the aspects I have set before you—when you see that there are accumulated and combined charges against different prisoners—when you see the atrocious nature of these charges, the number of the witnesses, the declarations, and the number of the articles libelled—and when you see the humane and salutary principles of our law, and the practice of this court,—your lordships will not be inclined to form a precedent, which, in the first place, would be injurious to the law of the country; and, in the next place, would be injurious to the unhappy persons now brought to this bar.”
This speech caused a feeling of admiration in the court, for the advocate had put forward his arguments in a most able manner; but there was also something akin to dismay in the minds of many present lest the culprits should escape because of any flaw in the indictment.
The Lord Advocate had a difficult task before him, but he confidently rose up to reply to the arguments adduced from the other side of the bar, and attacked them in a most spirited manner. He thought he could completely defend his method of bringing the prisoners to trial, and show that it was not only sanctioned by the law of the country, but also by numerous precedents, even by those quoted by his learned friend. But his object in placing the female prisoner in this indictment was that she might derive benefit rather than prejudice. Had he tried the man first, and afterwards the woman, adducing against her the same, or nearly the same, evidence brought against Burke, she would have had good reason to complain of prejudice. However, since the objection had been raised he would not then proceed against her, but would do so ten days hence. “But if she should suffer prejudice,” said he, “from the evidence in Burke’s trial going abroad, let it be remembered it is not my fault. She and her counsel must look to that—it is their proceeding, not mine.” Turning to the objections in Burke’s case, he said:—“As to the second objection, whether or not I am entitled now to go to proof on the three charges here exhibited, or shall proceed seriatim, I am aware that this is matter of discretion with the court. In so far, however, as depends upon me, I declare that I will not consent to this being dealt with in the last of these modes. No motive will induce me, for one moment, to listen to any attempt to smother this case; to tie me down to try one single charge, instead of all the three. If I had confined myself to one of those charges; if I had served the prisoner with three indictments, and put the pannel to the hardship of appearing three times at that bar, I would have done one of the severest acts that the annals of this court can show. I am told that the mind of the public is excited; if so, are they not entitled to know, from the first to the last of this case; and is it not my duty to go through the whole of these charges? I would be condemned by the country if I did not, and what to me is worse, I should deserve it.” His lordship then went over the authorities cited by Mr. Robertson, and contended that they all bore against the arguments brought forward by the counsel for the defence.
Replying for the defence, the Dean of Faculty very learnedly examined the authorities quoted, with the object of showing that the action of the public prosecutor, in framing the libel as he had done, was illegal, and without precedent.
The pleadings finished, Lord Pitmilly delivered the leading judgment. He reviewed the arguments urged from both sides of the bar, and signified his approval of the course the Lord Advocate intimated he would take with M‘Dougal. As for Burke, he had stated through his counsel that he would suffer prejudice by going to trial on an indictment which charged him with three acts of murder, unconnected with each other, and his lordship therefore thought the prisoner should be tried for each of the acts separately. Lords Meadowbank and Mackenzie, and the Lord Justice Clerk, concurred in the opinion given expression to by Lord Pitmilly, and supported it by elaborate reasonings.
The Lord Advocate, thus tied down, intimated that he would proceed with the third charge libelled—the murder of Docherty—and that he would also proceed against M‘Dougal as well as Burke, for she could suffer no prejudice in being brought to trial for this single act, on which she was charged as act and part guilty along with Burke. This decision rather surprised the Dean of Faculty, who thought the diet against the woman had been deserted pro loco et tempore, but the prosecutor claimed to proceed as he had indicated. Their lordships then pronounced an interlocutor of relevancy:—“Find the indictment relevant to infer the pains of law; but are of opinion, that in the circumstances of this case, and in consequence of the motion of the pannel’s counsel, the charges ought to be separately proceeded in: and that the Lord Advocate is entitled to select which charge shall be first brought to trial, and His Majesty’s Advocate having thereupon stated that he means to proceed at present with the third charge in the indictment against both pannels—therefore remit the pannels with that charge, as found relevant, to the knowledge of an assize, and allow the pannels, and each of them, a proof in exculpation and alleviation,” &c.
The prisoners were then asked to plead to the indictment as amended, and they both offered the plea of “Not Guilty.” A jury was empanelled—fifteen men, as required by the law of Scotland. The preliminary objections were thus got over, and the trial could be proceeded with; but the result of the discussion was that the public were deprived of the satisfaction of knowing in an authoritative manner the mystery connected with the deaths of Mary Paterson and Daft Jamie.
CHAPTER XXI.
The Trial of Burke and M‘Dougal—Circumstantial Evidence—Hare’s Account of the Murder of Docherty—What he Declined to Answer—Mrs. Hare and her Child.