Burke and Hare (15 page)

Mr Archibald Alison, for the Crown, said that the law of Scotland was different from the law of England in this respect, and quoted venerable authorities for the principle that ‘no one is to be rendered infamous or disgraced by his own testimony’, even though it may aid the defendant.

The Dean of Faculty supported Mr Cockburn’s arguments and added that the intention was not to disqualify the witness but merely to test his credibility. The witness could answer the question affirmatively, in which case the fact would speak for itself. He could answer in the negative, which would be lying on oath, or he could refuse to answer at all, in which case the jury would draw their own conclusions.

Lord Meadowbank, excusing himself for his premature judgement, said that his opinion had been confirmed rather than changed by what he had heard. ‘I, for one,’ he said, ‘must throw the law of England altogether out of the question. It is, I believe, in matters of this kind, diametrically opposed to ours.’ But he did not believe Scottish law to be inferior or less effectual for the administration of justice. ‘The object of our law has always been to get at the truth, and I suspect that it is best to be obtained by preventing witnesses being harassed in the way that would result from such questions as the present being held to be admissible.’ He still did not think the question should be put. Lord Mackenzie disagreed, and thought the question could be put so long as the witness was warned that he had no protection in law if he should incriminate himself in matters other than the one being tried, and that he could decline to answer the question if he wished.

The Lord Justice-Clerk ruled that the question
could
be put, and after a few more brief exchanges, Hare was recalled and asked by Mr Cockburn if he had assisted in taking the body of the old woman to Surgeons’ Square. Hare answered ‘Yes.’

‘Were you ever concerned in carrying any other body to any surgeon?’

‘I never was concerned about any but the one that I mentioned.’

The Lord Justice-Clerk then warned Hare that he was not bound to answer questions which might incriminate himself, for if he did, he was not under the Court’s protection. ‘If you have been concerned in raising dead bodies, it is illegal; and you are not bound to answer that question.’

Mr Cockburn resumed by asking Hare how often he had seen bodies being taken to the doctors. Hare hesitated.

‘Do you decline answering that question?’

‘Yes.’

‘Now, sir, I am going to ask this question, which you need not answer unless you please, was this of the old woman, the first murder that you have been concerned in?’

Hare paused again.

‘Do you choose to answer or not to answer?’

‘Not to answer.’

‘I am going to ask another question, which you need not answer unless you like, was there murder committed in your house in the last October? Do you choose to answer that or not?’

‘Not answer that.’

Hare proved to be a man of few words, especially for an Irishman. He confirmed that he understood by Burke’s phrase ‘a shot for the doctors’ that he meant to murder the old woman, but had no idea he was going to do it that night until he saw Burke fall on her after he and Burke had been fighting. He refused to answer questions about previous transactions with Knox, and denied that he had ever received any money from the doctor, though Burke might have given him some. It was Burke, not Paterson, he said, who gave him a share of the £5 paid for the old woman’s body.

‘Now, sir,’ Mr Cockburn continued, ‘when Burke was on top of this person, destroying her, where were you?’

‘I was sitting on the chair in the same room.’

‘How long was he dealing with her?’

‘I could not say how long.’

‘How long?’

‘About ten minutes.’

‘And did you sit in the chair?’

‘Yes.’

‘And did you sit ten minutes on that chair without stirring one hand to help her?’

‘Yes.’

Hare said that the two women went out into the passage while the murder was taking place, but he saw it all happen.

‘You did not call murder or police?’

‘No.’

‘Not a word?’

‘No.’

‘Did you go to the police next day and give information?’

‘No.’

‘You did not do that, but you took the body to Surgeons’ Square?’

‘The porter did.’

‘You followed him?’

‘Yes.’

‘And you took money for it?’

‘Part.’

‘And next day, in the police office, you denied that you knew anything about it?’

‘Yes.’

Hare vacated the witness box to make way for his wife, who appeared clutching her child, which had whooping cough. She used the wretched child’s attacks to give herself time to think about what she was saying, or recall what her husband had told her to say, for she had, as she told the court twice, ‘a very bad memory’. She said little more than to confirm what Hare had already said, in a voice that was sometimes difficult to hear above her child’s paroxysms of heaving coughs. After establishing her version of the time, place and those present on the night in question, the Lord Advocate asked her if there had been a quarrel between Burke and her husband. She said there had, and she had tried to stop it. The old woman had cried out ‘murder’ and then fallen on the ground when she was pushed.

‘Now, what more did you see?’

‘I saw Burke lying on the top of her, whether on her mouth or on her breast I could not say.’

‘Did she make a noise?’

‘I could not say; for Mrs McDougal and me flew out of the house, and did not stop in it.’

When she came back, after perhaps a quarter of an hour, she did not see the old woman, and went to bed.

‘Seeing nothing of her, what did you suppose?’

‘I had a supposition that she had been murdered. I have seen such tricks before.’ Surprisingly, no one in court pounced on this last remark.

The witness said McDougal had told her earlier that day that there was a ‘shot’ in the house, a woman Burke had brought in from some shop. Laird admitted that she had fetched a box from Rymer’s at Burke’s request, but he had told her he wanted it for old shoes.

Maggie Laird was pressed to say if she and McDougal had talked about the murder, either while they were in the passage or afterwards, and at last she replied, ‘We were just talking about her, saying, perhaps it would be the same case with her and I.’

Lord Meadowbank interrupted, ‘Is that to say that you might be murdered; is that what you mean?’

‘Yes, sir.’

‘You know that Mrs Connoway lived next door there, and you know that there was a Mrs Law lived on the opposite side of the passage; did you not think of going there?’

‘I dreaded to go there, as I had left my husband three times. The thing had happened two or three times before, and it was not likely that I should tell a thing to affect my husband.’

‘I thought you said you left your house three times altogether.’

‘I left it for to go away altogether, for I was not contented to stay – not leading a contented life.’

The last witnesses for the prosecution were the medical men, Mr Black and Professor Christison. Neither could say definitely that Mrs Docherty had died from violence, although Mr Black’s opinion was that she had, and Professor Christison agreed that there were sufficient grounds for suspicion, but would not go further. There was some discussion as to whether the woman could have suffocated as a result of falling down while intoxicated, as Burke had suggested. The livid hue of the woman’s face, her swollen eyes and the small amount of blood issuing from her nose or mouth
could
all be consistent, Professor Christison said, with her having fallen down and suffocated while drunk. The Lord Justice-Clerk asked the Professor if he had opened the victim’s stomach. He replied in the affirmative.

‘Did you observe anything particular in it?’

‘Half-digested porridge.’

‘Had it any smell of whisky?’

‘No. If it had the smell of whisky, or any narcotic, I should have perceived it.’

‘Had the woman been in a dangerous state of intoxication, would there have been the smell of spirits in the stomach?’

‘Not necessarily, my Lord.’

This was no great help to the prosecution, but it completed their case. The two pre-trial declarations of each of the defendants were then read out, and as no witnesses were to be called for the defence, counsel began their final addresses to the jury in the early hours of the morning of Christmas Day. There had been no break for rest or refreshment since ten o’clock the previous morning.

During the evening, while the trial was progressing, there had been some disturbances out in the streets. A small crowd of youths had set off to march on Dr Knox’s house at Newington. Police had protected the property from them, so they went instead to the university, and succeeded in breaking some of the windows of Professor Monro’s lecture-room.

The Lord Advocate summed up the Crown’s case in a speech which he began by telling the jury that ‘at this late hour, when you must be exhausted with the long trial in which you have been engaged, I shall endeavour not to detain you long’. He then went through all the evidence in minute detail, after saying that the alleged offences were of ‘so atrocious a description, that human nature shudders and revolts at it’, that such crimes produced terror and dismay, and that he would not allow ‘any collateral considerations, connected with the promotion of science’, to deter him from his duty to ‘bring to light and punishment those deeds of darkness which have so deeply affected the public mind’.

Sir William Rae suggested to the jury that Hare was telling the truth, and said that all the testimony of the various witnesses tended to show that Burke was ‘the premeditated author, and leading instrument, in the perpetration of this most hideous act’. He also spoke at considerable length to demonstrate beyond doubt that McDougal was an accessory to the murder. Rae took the opportunity to remind the jury members that he had originally intended to try the pannels on
three
charges of murder, though they must of course confine their attention only to that part of ‘the whole system of atrocity’ he had brought before them today.

The trial had already been in progress for seventeen continuous hours when, at three o’clock in the morning, the Dean of Faculty commenced his address to the jury on Burke’s behalf. He spoke for two hours. Burke and Hare, Moncrieff said, acted together in the trade of procuring subjects for dissection, ‘though William Hare, with his usual adherence to truth, chooses to deny this unquestionable fact’. Although that trade may be revolting to the feelings of ordinary people, and tend to prejudice them against him, he reminded the jury, Burke was not on trial for procuring subjects for anatomists. And given that that was his trade, the fact of a dead body being found in his possession was no proof of murder. Even if they were convinced that murder had been committed, they must have proof that it was Burke who had committed it. It could have been Hare who murdered the woman – perhaps that was what the two men were fighting about. What was there to restrain the Hares from lying in order to fix the guilt on the prisoners and extricate themselves from the condition in which they stood? ‘What if that cold-blooded, acknowledged villain, should have determined to consummate his villainy by making the prisoners at the bar the last victims to his selfishness and cruelty? What is there to restrain him? Do you think that he is incapable of it?’ If the learned prosecutor had possessed clear evidence on which a jury could convict the defendants of wilful murder, the Hares would have been in the dock alongside Burke and McDougal.

Moncrieff asked the jury if a man who had just committed a horrible murder would have gone instantly to fetch a ‘surgeon’ (he meant Paterson) to look at the body, or, next morning, ask people in for breakfast with his victim lying naked on the floor. He suggested that the Grays were as habitually drunk as the Burkes, the Hares and the Connoways appeared to be, and pointed out that their testimony was confused and contradictory.

Moncrieff dwelt on contradictions in other witnesses’ answers. Young Broggan swore that when he had arrived at two or three in the morning, Burke and Hare were in the bed, and he lay down by the fire with the two women. But Hare said that the women were in bed, and Broggan was ‘sleeping in the back part of the bed, behind his aunt, as he is pleased to call her’. Maggie Laird said that the women were on the floor, Broggan in the bed with one of the men, and the other in the chair. ‘There is contradiction for you! If they were capable of judgement, and in a situation to give evidence, it is impossible that mistake or misconception to this extent could take place.’ Whatever may be the truth of the case, he went on, the Hares’ story was ‘a tissue of inventions; and whatever account is to be given of the manner of the old woman’s death, you have not got it from these witnesses’. If a man’s life, or liberty, or character, were to hang on the breath of such witnesses as Hare and his wife, ‘what security could any man have for his existence in society for a single hour?’

Henry Cockburn rose at five o’clock to speak for McDougal and, like the Dean of Faculty, poured scorn on the testimony of the ‘squalid wretch’ Hare and his repulsive wife, on whom the prosecution so much depended, but who were really ‘the property of the gibbet’. The idea of believing such witnesses in a capital case was shocking. The prosecutor had talked of their being sworn to tell the truth, but ‘what is perjury to a murderer; the breaking of an oath to him who has broken into the bloody house of life?’ Cockburn urged the jury to distance themselves from ‘the cry of the public for a victim’, and ignore the notoriety of the case outside the court. ‘Let the public rage as it pleases.’ Their duty was to decide purely on the evidence in the trial if McDougal had been an accomplice to murder, and their safest course was to find the libel not proven.

The Lord Justice-Clerk summed up at great length before sending the jury to consider its verdicts. It was half-past eight by this time. Burke sat calmly waiting, but Nelly was nervous and agitated, and Burke did his best to comfort her. The jury took fifty minutes to reach its conclusions. As the members filed back into court, their chairman, John McFie, gave their verdict to a momentarily hushed crowd of lawyers and clerks, reporters and spectators, ‘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 McDougal.’