CHAPTER XXII.
The Trial—Speeches of Counsel—Mr. Cockburn’s Opinion of Hare—The Verdict of the Jury.
Without any delay, on the reading of the declarations, the Lord Advocate at once commenced his address to the jury, and the public feeling is fully reflected in the following remarks made by him at the outset:—“This is one of the most extraordinary and novel subjects of trial that has ever been brought before this or any other court, and has created in the public mind the greatest anxiety and alarm. I am not surprised at this excitement, because the offences charged are of so atrocious a description, that human nature shudders and revolts at it; and the belief that such crimes as are here charged have been committed among us, even in a single instance, is calculated to produce terror and dismay. This excitement naturally arises from the detestation of the assassins’ deeds, and from veneration of the ashes of the dead. But I am bound to say, that whatever may have occasioned this general excitement, or raised it to the degree which exists, it has not originated in any improper disclosures, on the part of those official persons, who have been entrusted with the investigations connected with these crimes; for there never was a case in which the public officers to whom such inquiries are confided, displayed greater secrecy, circumspection, and ability. It is my duty to endeavour to remove that alarm which prevails out of doors, and to afford all the protection which the law can give to the community against the perpetration of such crimes, by bringing the parties implicated to trial; and I trust it will tend to tranquilize the public mind, when I declare I am determined to do so. I cannot allow any collateral considerations, connected with the promotion of science, to influence me in this course; and I am fully determined that everything in my power shall be done to bring to light and punishment those deeds of darkness which have so deeply affected the public mind.” Having reviewed the evidence in the case, his lordship turned to the question of the admissibility and reliability of the testimony given by Hare. He pointed out that it would have been impossible to make out a case against the accused without the assistance of some of the individuals connected with the crimes; and argued that an acquittal, after a trial on the evidence brought before the magisterial inquiry, would probably have sent the accused parties back to their former practices, whatever they were, with increased encouragement and confidence. The public would have remained entirely ignorant of the extent to which such crimes had been carried by these persons; whether these four individuals comprehended the whole gang, or if there were others connected with them, or whether similar gangs did not exist in other places. Such a state of ignorance appeared to him altogether inconsistent with the security of the public; and he considered a knowledge of these matters indispensible, and as being of infinitely more public importance than any punishment which could be inflicted on the offenders. He did not think that such information was too dearly purchased by admitting some of these individuals to give evidence, and he was persuaded the country, when this matter came to be calmly considered, would support him in the propriety of the choice he had made. He admitted that by availing himself of such information he necessarily excluded the possibility of bringing these witnesses to trial for any offence in which they had so acknowledged a participation. This, in the then state of excited feeling, might be regarded as unjust, but on that account the exercise of sound judgment was all the more required of him. The testimony given by these witnesses, his lordship contended, was thoroughly credible. Hare especially appeared to speak the truth; but he also pointed out that there was independent evidence which corroborated in part the statements made by these persons. He concluded his task by demanding at the hands of the jury, “in name of the country, a verdict of guilty against both these prisoners at the bar.” The speech for the Crown was listened to with intense interest, and no wonder, for in addition to the importance of the issues at stake, it was acknowledged to be one of the best and most eloquent ever delivered by Sir William Rae.
The speech by the Dean of Faculty was more laboured and less spontaneous than that of the Lord Advocate. He felt himself beset with difficulties, especially the prejudice against his client, Burke, which was raised by the motive alleged in the indictment. “The motive for committing the offence which is here ascribed to the prisoner,” he said, “involves in it a peculiar practice or employment which may be in itself a crime, though it is not necessarily criminal; but whether it implies public criminality or not, it involves in it a purpose which is revolting to the feelings of the generality of mankind, and calculated, almost above every other thing, to produce a prejudice in the minds of those who come to consider the case itself. For need I say that, when it is imputed to the prisoner that his object was to procure what they are pleased to call subjects for dissection, the very statement of such an occupation, stamps a degree of infamy on the individual engaged in it, and you are apt to set it down in the very commencement of the inquiry, that he is a person capable of any turpitude, and to imagine that to prove him guilty of any crime, however enormous, requires less evidence than that which you would consider indispensible to the conviction of any other person.” He implored the jury to cast any such prejudice aside, and to consider the case solely upon the merits of the evidence adduced. This he proceeded to analyse, making, as a matter of course, the most of the discrepancies and inconsistencies, and he sought to impress upon the jury that the whole of the case for the prosecution depended on the evidence of socii criminis—the alleged accomplices in the deed charged. He asked them if they could put the smallest faith in the testimony of Hare and his wife, who had nothing to restrain them from telling the most deliberate series of falsehoods for the purpose of fixing the guilt of the murder on the prisoners, and extricating themselves from the condition in which they stood. Hare, when asked if he had ever committed other murders, had declined to answer the question, yet this was the person who gave evidence before them, not with a paltry money motive, but with the tremendous motive of securing himself from an ignominious death. Let them change the position of parties, and suppose that Hare was at the bar, and Burke in the witness-box. He did not know what case they might get from Burke and M‘Dougal, but nothing could hinder them, as witnesses, from making out as clear a case against Hare and his wife, totally transposing the facts, and exhibiting the transaction as altogether the reverse of what Hare said it was. “What,” exclaimed the learned Dean, “if that ruffian who comes before you, according to his own account, with his hands steeped in the blood of his fellow creatures, breathing nothing but death and slaughter; what if that cold-blooded, acknowledged villain, should have determined to consummate his villany, by making the prisoners at the bar the last victims to his selfishness and cruelty? Do you think that he is incapable of it?”
Mr. Henry Cockburn, for M‘Dougal, confined himself almost entirely to the credibility of Hare and his wife. “Hare,” he said, “not only acknowledged his participation in this offence, but he admitted circumstances which aggravated even the guilt of murder. He confessed that he had sat coolly within two feet of the body of this wretched old woman while she was expiring under the slow and brutal suffering to which his associate was subjecting her. He sat there, according to his own account, about ten minutes, during which her dying agonies lasted, without raising a hand or a cry to save her. We who only hear this told, shudder, and yet we are asked to believe the man who could sit by and see it. Nor was this the only scene of the kind in which they had been engaged. The woman acknowledged that she ‘had seen other tricks of this kind before.’ The man was asked about his accession on other occasions, but at every question he availed himself of his privilege, and virtually confessed by declining to answer.” “The prosecutor,” continued the learned counsel, “seemed to think that they gave their evidence in a credible manner, and that there was nothing in their appearance beyond what was to be expected in any great criminal, to impair the probability of their story. I entirely differ from this; and I am perfectly satisfied that so do you. A couple of such witnesses, in point of mere external manner and appearance, never did my eyes behold. Hare was a squalid wretch, in whom the habits of his disgusting trade, want, and profligacy, seem to have been long operating in order to produce a monster whose will as well as his poverty will consent to the perpetration of the direst crimes. The Lord Advocate’s back was to the woman, else he would not have professed to have seen nothing revolting in her appearance. I never saw a face in which the lines of profligacy were more distinctly marked. Even the miserable child in her arms, instead of casting one ray of maternal softness into her countenance, seemed at every attack [of hooping-cough] to fire her with intense anger and impatience, till at length the infant was plainly used merely as an instrument of delaying or evading whatever question it was inconvenient for her to answer.” Having dealt with the question of corroboration, Mr. Cockburn remarked:—“The simple and rational view for a jury to take is that these indispensible witnesses are deserving of no faith in any case; and that the idea is shocking of believing them, to the effect of convicting in a case that is capital. The prosecutor talks of their being sworn! What is perjury to a murderer! The breaking of an oath to him who has broken into the ‘bloody house of life!’” In concluding, he called for a verdict of not proven:—“Let the public rage as it pleases. It is the privilege and the glory of juries always to hold the balance the more steadily, the more that the storm of prejudice is up. The time will come when these prejudices will die away.”
The Lord Justice-Clerk then summed up, carefully going over the evidence to the jury, and emphasising those points which he thought deserving of their attention.
The jury retired to consider their verdict at half-past eight o’clock on the morning of Thursday, 25th December—Christmas day—the trial having continued from ten o’clock the previous forenoon. Burke seemed to consider a conviction certain not only in his own case but also in that of M‘Dougal, for he is said to have given her directions how to conduct herself, and told her to observe how he behaved when sentence was being pronounced. After an absence of fifty minutes the jury returned to court, and the chancellor or foreman, Mr. John M‘Fie, a Leith merchant, gave, viva voce, the following as the verdict:—
“The jury find the pannel, William Burke, guilty of the third charge in the indictment; and find the indictment not proven against the pannel, Helen M‘Dougal.”
The audience applauded the finding of the jury, and the news was quickly conveyed to the enormous crowd outside in Parliament Square, who cheered to the echo. Burke remained cool, and turning to his companion he remarked,—“Nellie, you’re out of the scrape.” The Lord Justice-Clerk then thanked the jury for the unwearied pains and attention they had bestowed on the case, and said it must be satisfactory to them to know that in the opinion of the court their verdict appeared to be well founded. It was afterwards reported that the jury had considerable difficulty in coming to a decision, and that the verdict they gave in was something of the nature of a compromise. An old legal maxim has it that a wife acts under the constraint of her husband, and it was believed to be in view of this that the jury found the charge against M‘Dougal not proven.