Chapter XIX

_Burke and M'Dougal amend their Account of the Murder--The Prosecution
in a Difficulty--Hare turns King's Evidence--The Indictment, against
Burke and M'Dougal._

While these events were transpiring outside, the authorities were labouring anxiously in the preparation of the case against the accused parties. This was no easy matter. It was beset with technical difficulties which it was not likely the public, in its then excited and unreasoning state, would take into its consideration, and the Crown officials sought, if possible, to avoid any miscarriage of justice.

On the 10th of November Burke was again examined in private before Sheriff Tait, and emitted a second declaration. His statement of a week before having been read over to him, he declared it to be incorrect in several particulars. He then proceeded to point out that the events he had previously described as having taken place on the Saturday really took place on the Friday. As to what occurred in the evening he was, however, a little more truthful, even at the expense of absolutely contradicting himself. In the evening they had some dram-drinking, "because it was Hallowe'en," and pretty late in the night he and Hare differed, and rose to fight. When they were separated by M'Dougal and Mrs. Hare they sat down by the fire together to have another dram, and then they missed Mary Docherty. They asked the two women what had become of her, but they did not know. Burke and Hare searched for her through the house. They looked among the straw of the shake-down bed on the floor, at the bottom of the standing bed, thinking she might have crept there during the struggle, and then they found her among the straw, lying against the wall, partly on her back and partly on her side. Her face was turned up, and there was something of the nature of vomiting, but not bloody, coming from her mouth. After waiting for a few minutes they concluded, though the body was warm, that the woman was dead. M'Dougal and Hare's wife immediately left the house without saying anything, and Burke supposed they did this "because they did not wish to see the dead body." After a while the men stripped the corpse, and laid it among the straw, and it was then proposed that it should be sold to the surgeons. The rest of the declaration was taken up with an account of what actually took place on the Saturday, for Burke, having furnished an account of how the woman met her death, seemed to think that he was free after that to tell the truth as to the subsequent events. He denied having caused Docherty's death, and gave it as his opinion that she had been suffocated by laying herself down among the straw in a state of intoxication. "No violence," he continued, "was done to the woman when she was in life, but a good deal of force was necessary to get the body into the chest, as it was stiff; and in particular, they had to bend the head forward, and to one side, which may have hurt the neck a little; but he thinks that no force was used, such as could have hurt any part of the back at all." The one redeeming feature of the declaration is that Burke stated "that a young man named John Broggan had no concern in the matter; that Broggan came into the house on Saturday forenoon, as he thinks, while the body was in the house, but did not know of its being there."

On the same day--the 10th of November--Helen M'Dougal was subjected to a further examination by the Sheriff. She adhered to her former declaration, and in answer to a question she stated that between three and four o'clock on Friday afternoon the old woman insisted on having salt to wash herself with, and became otherwise very troublesome, calling for tea different times. At last M'Dougal told her she would not be tormented with her any longer, and thrust her out at the door by the shoulders, and she never saw her afterwards.

These were the declarations, and although they were sufficiently contradictory in themselves, and were in many respects directly opposed to the stories told in the ones made on the 3rd November, the Lord Advocate was still in a difficulty. There was, of course, the evidence of the Grays and of the neighbours, but it was entirely circumstantial, and might fail to convict. Hare, ever wily and cunning, as we have seen, at last saw how matters stood, and responded to an offer to turn King's evidence, on the condition of being given an assurance that his wife and himself would be safe from any prosecution. This was a way out of the difficulty which the Lord Advocate, after consideration, was glad to accept, as the only one possible; and the _Evening Courant_ of the 29th November was able to announce to the public that one of the parties implicated in the West Port murder had given such information as would lead to the apprehension of three or four other individuals. This, of course, was scarcely correct; but the _Observer_ put it right by stating that Hare had agreed to turn King's evidence. In its issue of the 6th December the _Courant_ stated that Burke and M'Dougal--"his wife" she is called--had been committed for trial for the murder of Mrs. Campbell or Docherty, Daft Jamie, and Mary Paterson. "The manner in which the murders were committed," says this enterprising journal, "has been described to us, and some statements have also been communicated as to other individuals supposed to have shared a similar fate; but as the whole will probably be laid before the public in the course of the trials that will take place, we decline, for the present, to publish further particulars."

On the 8th of December--two days later--a citation was served on Burke and M'Dougal, "charging them to appear before the High Court of Justiciary, to be held at Edinburgh, on Wednesday, the 24th of December, at ten o'clock forenoon, to underlie the law for the crime of murder." As the form and matter of the indictment are interesting in themselves, and as they gave rise to a long and important discussion at the trial, it is proper that it should be quoted:--

"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.