Chapter VII: Part 7

Upon inquiring for Paterson, they alleged that she had gone out with Burke, and added that they expected them back soon, and invited her to sit down and take a glass of whisky with them. She did so, in the hope that Paterson might quickly return. Mrs. L.’s servant then left them, and M‘Dougal commenced a narration of her grievances from Burke’s bad conduct, and railed at him for going away with the girl, and this while her murdered body must have been lying within a few feet of her! In a short time the servant returned for Brown, Mrs. L. having become alarmed at her report, had sent her to bring her. No attempt was made to detain her; but she was invited to return, which she promised to do.

In the afternoon she did go back, and was again informed by Constantine Burke’s wife that Burke and the girl had not returned.

In answer to her subsequent inquiries and those of Mrs. Worthington, in whose house they lived, it was pretended that Paterson had gone off to Glasgow with a _packman_; but this reply did not satisfy Brown, as she knew that Paterson was a well-educated girl, and could write sufficiently well to send an account to her friends if she had left Edinburgh, which she certainly would have done; her clothes also remained unclaimed. No more satisfactory intelligence, however, could be obtained, and she never heard farther tidings of her until after the murder of the woman Campbell, when the mystery was developed, and the clothes which Paterson wore were found in the West Port. Upon being confronted with Burke and M‘Dougal, she readily recognised them.

She believes firmly that Constantine Burke and his wife were cognizant of the proceedings, both from their manner at the time and the conduct of Constantine afterwards when she questioned him about Paterson. Whenever she saw him, which she frequently did at his work early in the morning, she inquired after her. His answers were always very surly; on two occasions saying, “How the h--ll can I tell about you sort of people; you are here to-day and away to-morrow;” and on another, as if in allusion to the horrid transaction, “I am often out upon my lawful business, and how can I answer for all that takes place in my house in my absence.”

She represents Paterson to have been irregular in her habits, but not so low as has been represented, and appears indignant at a paltry print of her, in which she is represented in the garb of a servant, a dress in which she never appeared. She had been well educated for one in her situation, and possessed a fine person, for which she was more remarkable than beauty of face. The story which has appeared in the newspapers about her mother being a housekeeper in the west country, Brown alleges to be unfounded. She was a native of Edinburgh, and her mother is dead.

* * * * *

MURDER OF “DAFT JAMIE.”

The second murder charged in the indictment was that of James Wilson, commonly known by the name of “Daft Jamie;” and the circumstances attending it were even more revolting than those of the women Paterson and Campbell. None of their misdeeds has excited a greater feeling of indignation in the public mind. Jamie was very generally known, and was a universal favourite. His appearance marked the imbecility of his mind, and was such as to make every one regard him with a feeling of tenderness and sympathy. He was perfectly harmless and inoffensive, and possessed apparently great kindliness of heart. To all who had occasion to be on the streets of Edinburgh, whether at an early or late hour, Jamie’s appearance was perfectly familiar--wandering about, in every sort of weather, bare-headed, and without stockings or shoes, and his good-humoured laugh and salutation, by an awkward bow and twitch of the front lock of hair, were readily recognised and replied to. Though roaming almost constantly about in this guise, he was never known as a beggar, but occasionally visited certain houses, where he was admitted as a familiar guest, and kindly entertained, while even in these he conducted himself in a modest unobtrusive manner. He used to allege that he did not need money, as he had sometimes the “feck o’ half-a-croun on him.” Jamie was by no means, however, the moping idiot that he has been represented. Though undoubtedly imbecile and incapable of any continuous mental exertion, he possessed some small portion of intellect. To the boys of Edinburgh, his knowledge of the days of the month and week, and facility in computing on what day of the week any given time would fall, were well known; indeed, he sometimes appeared to serve in place of a kalendar to them. His musical talents were also appreciated, and he was often called upon to entertain his juvenile acquaintances with a song, which he executed in tolerable style.

He was scrupulously clean in his person and linen, changing it frequently. His hands and feet, though uncovered, were also observed to be always clean. They were peculiarly formed, and by his feet he is said to have been recognised by some of the students in Dr. Knox’s dissecting-rooms.

It is a curious fact, that almost all the _naturals_ who have lately been known on the streets of this city, have met with a violent and untimely end. Bobby Auld, a contemporary and acquaintance of Jamie’s, was killed by the kick of an ass, and afterwards became also a subject for dissection. There is an anecdote told concerning them, which is a curious instance of blindness to a personal deficiency, joined to a just perception of it in another, and at the same time exhibits in a strong light what we have said of Jamie’s innocent and artless disposition. It is narrated that the two met accidentally one day somewhere in the neighbourhood of the Grassmarket. “It’s a cauld day, Bobby.” “Aye is’t, Jamie,” replies Bobby. “We wud be the better o’ a dram--hae ye ony siller? I hae tippence;” “and I hae fourpence,” says Jamie. “Oh, man,” rejoins Bobby, “that’ll get half a mutchkin.” They then adjourned to a neighbouring public-house, where the money was produced, and the liquor ordered. But before any of them had partaken of it, Bobby inquired anxiously, if Jamie had seen “the twa dougs fechting on the street?” “No,” says Jamie, “I saw nae dougs fechting.” “It’s a grand fecht though,” replies Bobby, “and has lasted half an hour; its weel worth your seeing, and you had better gang to the door and see it.” Jamie accordingly proceeded unsuspectingly to the street to witness this wonderful dog fight, but speedily returned with the intelligence that he could discover no such conflict. “They’ll be dune then,” coolly observes Bobby. “But what’s come o’ the whisky?” said Jamie, on observing the stoup standing empty. “Ou, man,” says the treacherous Bobby, “ye bade sae lang I couldna wait.” Upon Jamie’s being questioned what he had done to Bobby for this false play, he replied, “Ou what could ye say to puir Bobby? he’s daft, ye ken.”

Jamie, however, though inferior to Bobby in trickery and low cunning, was much his superior in intellect. His father is said to have been a decent religious man, and took him regularly to a place of worship in the old town on Sabbaths, which Jamie, after his death, perhaps from habit, continued to attend. When examined by a respectable member, it was found that his religious knowledge was far beyond what could have been expected, and superior to many whose appearance promised more. His answers to questions were intelligent, and out of the usual routine.

It is probable that this poor creature had been for some time watched by the gang of murderers, and marked out as one that might be easily taken off without exciting suspicion. They had very much miscalculated however, both the notice that would be taken of his disappearance, and the degree of resistance he was capable of making. Accident unfortunately threw him in their way. He was met by Burke at nine o’clock one morning in the beginning of October last, wandering about in his usual way in the Grassmarket. He instantly accosted him in his fawning manner, and inquired of him whether he was in search of any one; he told him he was seeking his mother, to whom, as he was a creature of kindly dispositions, he was warmly attached. The wretch at once saw that he now had him within his grasp, and instantly commenced his schemes for drawing him away to some convenient place where he might be murdered. He contrived to persuade him that he knew where his mother had gone, and would take him to the place, and by coaxing and flattery he at length decoyed him into Hare’s house. Here those monsters of iniquity, exulting over their deluded victim, began to pretend the greatest kindness for him, and having procured liquor, they pressed it upon him. He at first decidedly refused to taste it, but they so far wrought upon his good nature by their assumed kindness, that they induced him to join them in their cups, and then plied him so effectually, that he was soon overpowered, and laying himself down on the floor, fell asleep. Burke, who was anxiously watching his opportunity, then said to Hare, “Shall I do it now?” to which Hare replied, “He is too strong for you yet; you had better let him alone a while.” Both the ruffians seem to have been afraid of the physical strength which they knew the poor creature possessed, and of the use he would make of it, if prematurely roused. Burke, accordingly, waited a little, but impatient at length to accomplish his object, he suddenly threw himself upon Jamie, and attempted to strangle him. Oppressed as he was with the influence of liquor, he was roused at once by this assault to a full sense of his danger; and, by a dreadful effort, he threw off Burke, and sprung to his feet, when the mortal struggle began. Jamie fought with all the fury of despair, and would have been an overmatch for any one of his ruffian assailants. Burke had actually the worst of the struggle, and was about to be overpowered, when he called out furiously to Hare to assist him, crying that he would stick a knife into him if he did not do so. Hare rushing forward turned the balance of the unequal conflict by tripping up Jamie’s heels; and afterwards dragging him along the floor, with Burke lying above him. None were present at this murder, which was completed before mid-day, except the two ruffians themselves.

This will be readily recognised as Hare’s account, and, of course, it is fitted to show him in the most favourable light which the circumstances will admit of. It is but justice, however, to give the statement of his companion in guilt, who, if there is any choice, is, after all, perhaps the one whose testimony is most entitled to credit.

Burke states that it was Hare who decoyed Jamie into the house, and then sent for him to assist him in his inhuman design,--that Jamie not only peremptorily refused to taste the liquor presented to him at first, but actually did drink very little of it, and not nearly so much as to produce intoxication,--that he then sat down upon the bed, reclining backwards and leaning upon his arm, and that Hare sat beside him in the same position,--and after some time, impatient for his prey, began to attempt to suffocate him in the usual way, by pressing his hands over his nose and mouth. Jamie, however, when he found him using violence, resisted stoutly, and grappled with him; and during the struggle, both fell off the bed, and rolled on the floor. Hare then called for Burke’s assistance, which he effectually rendered, by falling upon Jamie’s body, when, by their united efforts, he was dispatched.

Jamie fought manfully, and did inflict some injuries upon them; but it is a mistake to suppose that Burke’s cancer was produced in consequence of the bite which he is said to have given. It was originally the effect of heat and fatigue in walking, which he had neglected, and leading a dissipated dissolute life afterwards, it reached the dangerous state which it has now assumed. After Jamie’s death, Burke remarked that his clothes would answer his brother, to whom they were given, and a pair of trousers were afterwards recognised upon him by a baker in the Cowgate, whose they had been, and who had given them to Jamie. It was also observed that his son wore his kerchief.

* * * * *

DISCUSSIONS RELATIVE TO THE TRIAL OF HARE AND THE _SOCII CRIMINUM_.

Since the condemnation of Burke a very important question has been agitated, not only among lawyers, but in society and the public prints,--namely, whether or not Hare, or any of the other parties who were concerned in the two murders that were libelled in the indictment against Burke, but which were not brought to trial,--can now, after having been admitted as evidences for the crown, be legally put upon their trial for participation in those murders? This is a very nice and intricate question indeed, and it is likely to be brought on for immediate discussion in a regular shape, as the mother of James Wilson, one of the victims, has been advised that it is competent to her, as a private party, to prosecute Hare, or any of the other guilty persons, notwithstanding any arrangements into which the Lord Advocate, as public prosecutor, has entered with them as king’s witnesses on Burke’s trial;--and such is the strong current of public feeling in support of an attempt to bring Hare to justice, that a subscription has been set on foot, and some of our nobility and gentry of high rank have given the sanction of their names, and the aid of their purses, to support the poor woman, while eminent counsel and an agent--as we formerly mentioned--have undertaken the conduct of the proceedings. Preparatory to such a prosecution, application has been made, in name of Wilson’s mother, to the Court of Justiciary, to have Hare and his wife detained in custody until an indictment shall be served, and the other preliminary steps gone through, preparatory to a solemn trial of the question.

In the meantime, it may be interesting as a chapter in the history of this frightful drama of real life, to combine with the details formerly given such a selection from the arguments which have already been maintained on this point, as will afford a concentrated view of the discussions which lie scattered over a number of different publications. And in doing this, we shall take the liberty of lopping off such parts of the controversy as are extraneous to the mere point of law, and as might tend to prolong any of that irritation and personality which very naturally, although not necessarily, mingle themselves in public discussions.

We regret that the length to which these discussions necessarily extend will prevent us from giving, so early as was intended, a complete account of the Life of William Burke, and the circumstances attending the murders, including many interesting particulars hitherto unpublished. This will appear immediately after, and in the meantime we trust that the public will appreciate the importance of the question now presented to their notice.

The first publication, we believe, on this subject was an article in the Caledonian Mercury, of which the substance is as follows:

It is now certain that no further proceedings are to be
taken against the persons concerned either as principals or
accessories in the late murders; at least, we have seen a
document issued from a high quarter, the gist and bearing of
which lead directly to this inference. But the matter cannot
possibly be allowed to rest here. The united voice of society
calls loudly for further, deeper, and fuller investigation; and
if the Public Prosecutor refuse to obey that call, and redeem
his pledge to probe and sift the whole system of iniquity to
the bottom, there is another place where the universal cry for
justice, which now rings throughout the land, will be listened
to and respected, and where even that high functionary himself
may be called to account for the mode in which he has exercised
the almost unlimited, certainly undefined, powers of his office.
We are quite prepared to give him credit for the perfect
purity and uprightness of his motives in abstaining from the
institution of further inquiries, and in wishing to allow the
veil, of which a corner only had been withdrawn, to drop for
ever on scenes too horrid and bloody to be contemplated without
fear and trembling. He may have come under a promise to the
prime _particeps criminum_ which, as a man of honour, he cannot
violate; and he may be actuated by a desire to avoid, as far as
possible, every thing calculated, as he believes, to injure the
schools of anatomy in this city. But, in regard to the first of
these grounds of forbearance, (which the reader will observe we
put merely as suppositions) the public have nothing whatever to
do with any private and extrajudicial obligations of this sort,
which however expedient or necessary in some cases they may be
thought, are in every case illegal; and the answer made to such
an apologetical plea will unquestionably be, that justice is
not to be stifled, nor a horde of murderers, and accessories
to murder, suffered to escape, because one of the horrid gang
was induced to “peach” by a promise of impunity and protection.
That incomparable miscreant, steeped to the very teeth in
blood and slaughter, the originator of the assassinations,
Burke’s master in the art of murder, and a principal or an
accessory in every crime which has been committed,--in short,
if there be any gradations of guilt in atrocities such as were
never before heard of or paralleled in any age or country,
the most guilty,--was not surely a fit subject to be selected
for clemency upon the condition of betraying his accomplices:
especially, where these were so numerous that others less
deeply implicated might have been found equally capable of
revealing the whole mystery of iniquity. Besides, his evidence,
if evidence it may be called, was unnecessary and useless.
It was unnecessary, because, exclusive of his revelations,
there was abundant evidence to bring home the crime charged
to _both_ of the prisoners; and it was useless, for what Jury
would credit the testimony of a wretch whose only title to
be believed consisted in his having been concerned in the
perpetration of _three_, perhaps _thirty_ murders,--who coolly
admitted in the box that he had stood or sat by, with perfect
composure and unconcern, while Burke was strangling the unhappy
woman for whose murder his life has been forfeited,--who had
the most powerful of all human motives, and the very strongest
conceivable interest in saying every thing which he deemed
calculated to effect the destruction of his quondam pupil and
associate,--and who must have exchanged places with the pannel,
if the pannel had been acquitted? We say, therefore, that we are
utterly at a loss to conceive upon what principle this execrable
villain was admitted to “peach.”

* * * * *

This was followed by an answer, reply, and various replications, which we shall content ourselves with inserting in their order, denuded only of such portions as might have perhaps been spared, but which must have crept in unadvisedly, in the heat and hurry of composition for newspapers.

_Edinburgh Advertiser._

Much dissatisfaction has been expressed that no more of the horrid gang of murderers are likely to be brought to trial, and, consequently, that Burke is the only victim who is to be sacrificed to public justice; but the decision to which the Court came in restricting the Prosecutor to the proof of one of the three charges exhibited against Burke, however it may have been consistent with strict justice, was attended with the necessary effect of preventing the disclosure of the circumstances connected with the other two murders, namely, those of Mary Paterson and of “Daft Jamie,” for which the Lord Advocate so strenuously contended, in the view of satisfying the public mind; for, after Burke had been convicted under the third charge, it was out of the question to proceed to try him a second and a third time on the two previous accusations. The limited nature of the disclosure thus produced has naturally led the public in the present state of excited feeling, to call for the farther trial and punishment of this atrocious gang.

We have heard, however, that no farther trials will take place, and we can figure the reasons why. It is apparent that there were just four persons engaged in these horrid deeds, viz. Hare and his wife, Burke and M‘Dougal; the latter of whom, though not actually married to Burke, had lived with him as his wife, and had borne his name for ten years, and was thus legally his wife. After being detained weeks in jail, we understand, that not one of these four prisoners, when examined as accused persons, would acknowledge any share of guilt. In such circumstances, if these persons had been all indicted, it is obvious that the evidence against them would have been merely presumptive, and considering the difficulty even in convicting Burke, when two eye-witnesses swore to the way in which the deed was done, it is plain that all the four would have been acquitted. What effect such a result would have had on the public mind it is needless to inquire. _The only course left to secure a conviction was to admit a part of the gang as witnesses against the rest._ To have taken the women as king’s evidence against the men, if they had been willing to speak out, which it is believed they were not, could have availed nothing, as by law their testimony could not have been received against their husbands; besides, their knowledge could not be of that extended nature which it was desirable to possess. The only resource, therefore, must have consisted in taking Hare, who, however criminal, _was not the leader of the gang_. It may be well supposed that Hare would not have been so well dealt with, unless he had agreed to disclose, not merely the circumstances connected with the murder of Docherty, but with _every other crime of that nature in which he and Burke had been concerned_, and that his wife, against whom _he_ could not give evidence, should confirm his statements so far as consistent with her knowledge. Such information was clearly indispensable for the safety of the public. It is known that it was solely from Hare’s consequent disclosures that the murders of Mary Paterson and Daft Jamie were ascertained, and that collateral evidence was obtained sufficient to warrant a charge against Burke as connected with these murders. In both these cases, it is certain that the bodies were recognised in the dissecting-room, and in both, part of the clothes of the unfortunate persons murdered, were found in Burke’s possession. If no other case was charged, it may well be supposed to have arisen from the absence of such collateral evidence, without which no conviction could have been looked for. If we are right in this statement, _and we have been at some pains in obtaining accurate information_, it would be _impossible_ to bring Hare or his wife to trial for crimes which they had disclosed under such circumstances, even if there could be evidence against them, which is no ways likely.

M‘Dougal has been tried, and a jury has thought fit to acquit her of the only charge of which evidence could be obtained of her accession; and Burke has been convicted, and he is to be executed. Deeply as we regret that punishment should not reach a greater number of those miscreants, we cannot shut our eyes to the obstacles which may thus present themselves to its accomplishment, and must console ourselves with the reflection, that if farther trials are not to take place, the public functionaries are now well informed not only of the extent but of the nature of such practices; and, thus alive as they must be to the dreadful consequences of such crimes, the public has good reason to trust to the effect of their vigilance and exertions in affording security to the lives of the unprotected.

_The Caledonian Mercury._

In a contemporary journal of Friday last, we observe an article entitled “The West Port Murders,” which we think deserving of our special notice; and as it is substantively an answer to our legal argument respecting the liability of Hare to be tried for the murders of Mary Paterson and Daft Jamie, as well as a defence of the Public Prosecutor, for declining to bring any more of “the horrid gang of murderers” to trial, we feel ourselves called upon to reply to it. In doing so, however, we shall not fail to keep in mind that we have to deal with a question of law and of fact merely, and that, differing as we do _toto coelo_, from the Lord Advocate, in the view which he has taken of his duty upon this occasion, there is but one opinion as to the purity and uprightness of the motives by which he has been actuated, and of his desire, (unless opposed by technical difficulties,) to afford the fullest satisfaction to the public. His Lordship, to his infinite honour, has uniformly paid attention to the strongly expressed sentiments of the country.

The article in question sets out as follows,--for quotation see pages 141 and 142, paragraph commencing, “Much dissatisfaction, &c.

Now, we contend that this is altogether erroneous in point of law, and that the writer, in order to arrive at his conclusion, has confounded two things perfectly distinct, viz. the legal effect of a verdict of conviction _before_ sentence, and the legal effect of such conviction _after_ the Court has been moved to pronounce judgment; and after a sentence has been passed sinking the _caput_ of the prisoner. It is quite clear in law, that even a conviction, upon a capital charge, does not and cannot destroy the _status_ of the prisoner; and for this reason, that the verdict may be special, or inapplicable, or it may find something different from the facts charged, or it may involve a conclusion which is inept in law, so that, upon a motion in arrest of judgment, no sentence can pass upon it. Instances of this kind constantly occur; and every one who is acquainted with the books of criminal law, must be familiar with many of them. It follows, therefore, that if an objection were proponed upon any of these grounds, and sustained by the Court, the prisoner would fall to be dismissed _simpliciter_ from the bar. But until the Court be moved for judgment, it cannot be known whether such an objection may not lie; and, consequently, it is manifest that a mere conviction, however valid it may ultimately be found, does not and cannot affect the _status_ or destroy the _caput_ of the prisoner, which is the joint result of the verdict _and_ the sentence. Hence, we contend that the writer before us labours under a complete mistake in supposing that the decision of the Court “in restricting the Prosecutor to the proof of _one_ of the three charges exhibited against Burke _was attended with the necessary effect of preventing the disclosure of the circumstances connected with the other two murders_,” and that, “_after Burke had been convicted under the third charge, it was out of the question to proceed to try him a second and a third time on the two previous accusations_.” As matters turned out, it was indeed out of the question to try Burke a second and a third time for the other two murders. But how was it out of the question? Solely on account of the error committed by the Prosecutor himself in moving and obtaining the sentence of the Court on the verdict of conviction which had been returned by the Jury on the third charge, namely, the murder of the woman Docherty: For the moment Burke was condemned to die, his _caput_ was destroyed,--he was dead in law, and had no longer a _persona standi in judicio_; consequently, after such conviction and sentence, it was clearly “out of the question to proceed to try him a second and a third time on the two previous accusations.” But we have some confidence that no lawyer will maintain the incompetency of proceeding to try Burke upon these charges, had the Lord Advocate rested satisfied with the conviction he had obtained, and delayed moving for sentence. We will not argue a point so clear as this. It is evident to us that the dilemma in which the Prosecutor has placed himself is the consequence of his own blunder, and that Burke might have been tried on twenty separate charges, if the indictment had contained so many, but for the error committed by his Lordship himself in moving the Court for judgment, and thus destroying the prisoner’s civil personality, and, of course, his _persona standi in judicio_.

After stating, what is perfectly true, that “the limited nature of the disclosure thus produced has naturally led the public, in the present state of excited feeling, to call for the farther trial and punishment of this atrocious gang,” the writer then proceeds to say:--See paragraph on page 142, commencing “We have heard, however,” &c. to end of the article.

Now, our readers will perceive that this just comes, in substance, to the fact stated by implication in our Saturday’s publication, that Hare and his wife were admitted to “peach” upon a promise of impunity and protection. But were the circumstances such as to warrant the Public Prosecutor in giving such a promise, or accepting disclosures from Hare in regard to the murders of Mary Paterson and Daft Jamie, calculated to embarrass him in dealing with these miscreants, or to tie up his hands altogether from proceeding against them on account of these horrid crimes? We maintain there were no such circumstances, and our reasons for thinking so are already partly before the public. The defender of the Lord Advocate says, indeed, that “there were just four persons engaged in these horrid deeds, viz. Hare and his wife, and Burke and M‘Dougal,” and that if all four had been indicted, “it is obvious that the evidence against them would have been merely presumptive, and considering the difficulty experienced even in convicting Burke, _when two eye-witnesses swore to the way in which the deed was done_, it is plain that all the four would have been acquitted.” Now, all this is very loosely and inaccurately stated;--for, in the first place, the Lord Advocate knows as well as we do, that instead of _four_, there were at least _seven_ persons concerned either as principals or accessaries in these murders; secondly, that independently of the testimony of Hare and his wife, there was more than “presumptive evidence” inasmuch as he himself rested the case against Burke on the other evidence adduced, exclusive of Hare and his wife altogether; thirdly, that the Jury paid no regard whatever to the testimony of these wretches, yet convicted Burke of the charge libelled; and, lastly, that no other difficulty was experienced in obtaining this conviction than arose from the Prosecutor having to contend with the great talents of the Counsel arrayed for the defence, or were inseparable from a protracted investigation into a great body of circumstantial evidence. How, then, can it be maintained, that if Hare and his wife had been included in the indictment with Burke and M‘Dougal, the whole four would have been acquitted? It is said, indeed, that these miscreants, particularly the former, made such disclosures in relation to the murders of Mary Paterson and Daft Jamie, as renders it now impossible to bring them to trial for these assassinations; but even admitting this to the fullest extent, it is not pretended that they made any disclosures connected with the murder of Docherty; and as their testimony proved of no avail in facilitating or insuring a conviction against Burke, the necessary inference is, that the Prosecutor mismanaged his case in not including them in the same indictment with their associate and accomplice for that offence at least. But if people will not seek for evidence they cannot find it. Why was Falconer not sought out and brought forward? Had the Prosecutor apprehended this fellow and Paterson, and afterwards admitted them as king’s evidence, there would have been no want of proof to convict the whole operative part of the gang, _if not to go even farther than this_. The teachers of anatomy ought also to have been examined. They had it in their power to tell much that had come to their knowledge, and to point out channels by which more might have been discovered. Information of the most valuable description might have been obtained from them, had it been required; information, which they were willing and anxious to give, and which, we rejoice to learn, the Prosecutor is now taking the proper means to obtain.

In the paragraph above quoted there are some errors in point of fact, which are the more material and germane to our view of the case, because the mind of the Public Prosecutor may have been misled by them, and his course of conduct influenced by the misconceptions under which he laboured. First of all it is stated that M‘Dougal, “though not actually married to Burke, had lived with him as his wife, and had borne his name for ten years, and was thus legally his wife.” In his “confessions,” Burke states himself to have been living in notour adultery, which of course could only be the case upon the supposition that a former wife of his own was alive; which we understand to be the fact. M‘Dougal’s connection with Burke, therefore, was not of such a nature as legally to disqualify her for giving evidence against him. Next, the writer is misinformed when he says that Hare “was not the leader of the gang.” Further investigation, we are convinced, will prove the contrary. Hare was engaged in this horrid traffic _before_ he formed an alliance with Burke; and although the superior appearance, address, and physical strength of the latter, led him to act as the decoy, and to take a conspicuous share in the perpetration of the murders, Hare, we are satisfied, was his master and his tempter, as he is known to have been his constant associate in all the murders he committed, except, perhaps, one, which Burke alleges Hare did by himself when he was in the country. It is really melancholy to “hear,” therefore, “that no farther trials will take place,” and that, as far as the Prosecutor is concerned, Hare and his wife are now free from all challenge.

Happily, however, there is one method by which they may still be brought to justice. The mother of Daft Jamie is alive; and it is competent for her to prosecute for the murder of her son, upon obtaining the concourse of the Public Prosecutor, which his Lordship cannot withhold. This, we understand, is a settled point, and we know of a case in which a private party similarly circumstanced came forward. It was in consequence of several persons being shot, in Aberdeen, on the late king’s birth day, Captain M‘Donach was that day the officer on duty, and gave the orders to the military to fire upon the mob, in consequence of which several persons were killed. Politics then ran high, and his Majesty’s Advocate refused to bring the Captain to trial. But a private party came forward; his Lordship was obliged to grant his concourse; and Captain M‘Donach was put upon his trial. The Hon. Henry Erskine conducted the case for the prosecution; but in spite of all his efforts the Jury acquitted the prisoner. We do not remember how the instance was laid, and we have not time at present to consult the authorities. We are quite certain, however, as to the main fact, that the prosecution was brought by a private party, with concourse of his Majesty’s Advocate, after that Functionary had refused to prosecute in his own name. Now, the inference we draw from this is, that the mother of Daft Jamie ought to come forward upon this occasion; and in order to enable her to do so, a subscription should be immediately opened for raising the necessary funds to defray the expense of the trial. Were this done, hundreds, nay thousands would subscribe to enable her to prosecute; and we are satisfied that the Lord Advocate would not only not refuse his concourse, but would be pleased and gratified with a proceeding calculated to relieve him from the embarrassments with which he is at present surrounded.

_Edinburgh Advertiser._

The Lord Advocate is blamed, not only for not having possessed the gift of “second-sight,” and discovered sooner that Burke and Hare, and their two wives, were murderers. He is blamed in the second place, for having been able to procure the conviction of only one of the gang. Hare and his wife, it is said, ought not to have been made King’s evidence. There was enough of evidence, we are told, against their associates without them; and we are desired, therefore, to adopt the conclusion, that they were improperly screened from punishment, by being invested with the character of witnesses. This is really too much. But some persons, when _disposed_ to find fault, require, in the language of the proverb, “but a _hair_ to make a tether.” It has proved so, in the present instance. A better arranged case of proof, circumstantial and direct, has seldom, perhaps, been laid before a jury, than that which was submitted to the jury on the trial of Burke and M‘Dougal. A train of more clearly delivered and unshakenly adhered to testimony, on the part of the unexceptionable witnesses, has seldom been listened to. Yet, even when aided by the direct testimony of Hare and his wife, for whose evidence we are told there was no necessity, a jury, including individuals of the most respectable character, unanimously found the charge _not proven_ against _M‘Dougal_, while, at least, two of them, it is asserted, contended for a similar verdict _even against Burke_ himself. Had Hare and his wife, therefore, not been witnesses, there is the best reason for supposing that the conviction of none of the four would have been obtained. It is surprising that, in such a state of facts, the Lord Advocate should be accused of having acted improperly in admitting these miscreants to the privileges of king’s evidence.

In our last paper we endeavoured to show that his Lordship could not have acted otherwise than he has done. A contemporary of yesterday has reviewed the remarks we then made. After affecting to consider them as coming from a “higher quarter” than ourselves, in order, of course--to secure the greater attention to his own observations--he still contends that the Lord Advocate acted improperly in giving immunity to Hare and his wife, and that if he had not done so, he might have accomplished the conviction of more of the gang than Burke. On a _prima facie_ consideration of the subject, this must appear very unlikely. His lordship was, of course, in possession of all the evidence in its authentic shape, the broken parts of which have been wafted, in an exaggerated form, to the knowledge of the public. He was, perhaps, aware too, that the murders had all been so committed as to preclude the chance of direct evidence of them, except either from Burke or Hare--who were accustomed, according to the recent confession of Burke, to keep even their wives out of the way, on such occasions. Our contemporary has not stated, and we, therefore, imagine, cannot state, that any third party, not of the gang, ever witnessed a single one of the murders, or was ever so connected with their perpetration, as to be able to give any thing approaching to the requisite direct evidence on the subject. He should be prepared to do so, however, before censuring the Lord Advocate for a mode of procedure which may have been, and which, we believe, was wholly unavoidable.

Our contemporary objects to the extent of immunity he supposes to have been given to Hare and his wife. On this point, we should think, he need feel no uneasiness. If king’s evidence was necessary--if without such evidence it be plain from what has occurred on the trial of Burke, that there was more than a chance, a probability even, that the conviction of none of the gang could have been obtained--we may rest assured that the Lord Advocate offered no farther premium on the treachery which he felt to be requisite, for the sacrifice of some of them, than was absolutely necessary to insure it.

But then our contemporary thinks that, at all events, a different selection ought to have been made, and that, by the testimony of M‘Dougal, had she been admitted as king’s evidence, Hare might have been convicted as well as Burke. In our last paper, we stated that M‘Dougal, although not actually married to Burke, had, for ten years, lived with him as his wife, and, in law, therefore, _was_ so, and could not be examined against him; and as the other woman could not, for the same reason, have been examined against Hare--and neither of them could furnish against the husband of the other, that clear and decisive evidence required from _socii criminis_, to give it sufficient weight; the result of taking _them_ as king’s evidence might, and probably would have been, the escape of the whole four. Burke, however, it seems, has been confessing since his condemnation, and, as one of his confessions is said to lead to an _inference_ that his cohabitation with M‘Dougal could not make her his wife, as either he or she were previously married, and the wife or husband of the former marriage still alive--our contemporary, on the tacit assumption that this even yet mysteriously hinted at fact was or ought to have been known, and capable of proof _before_ the trial--endeavours to give the _coup de grace_ to our argument against the possibility of having made M‘Dougal give evidence against Burke. His attempt to do so is founded on the result of what is generally called, reasoning in a circle, and seems to require no farther notice. His whole argument, indeed, on this part of the subject proceeds on this other assumption, that the Prosecutor, in looking out for king’s evidence, has the selection of it entirely in his own hand. This, we rather think, is but seldom the case; and, where the gang have been connected as husbands and wives, the selection must often be prescribed to him, or made imperative, by circumstances over which he can have no control. Is our contemporary quite sure that the Lord Advocate had not his hands tied, in this way, in the present case?

As to his lengthened argument to show that had the Lord Advocate not moved for judgment against Burke, when found guilty of the last of the three murders charged against him, it would have been competent to have led evidence of the circumstances attending the other two--we would simply ask, _cui bono?_ What good effect could have resulted from the leading of it? Hare and his wife being protected as king’s evidence against the consequences of _their_ participation in them, and M‘Dougal not being charged with _them_ at all, they could only have been proved against Burke. After what had passed, must not this have seemed, in so far as Burke was concerned, to be like the pouring of water on a drowned mouse, and, in so far as the public was interested, to be the exciting of feeling unnecessarily and without object?

Our contemporary, in conclusion, asserts, that whatever immunity the Lord Advocate may have felt it necessary to give to the infamous Hare, the mother of “Daft Jamie,” taking advantage of the disclosures made by that wretch under promise of pardon, is entitled to prosecute him, with the concurrence of the Lord Advocate, which concurrence, in all these circumstances, his Lordship, he says, will be bound to give. This seems very novel doctrine. We can only say, that we should be extremely glad to think our contemporary correct in laying it down; and no man, we are certain, would be more happy to think his reasoning without flaw, than the Lord Advocate.

There is still another point of _dittay_ against his Lordship, an insinuation that he is unwilling to prosecute trains to the knowledge of other murders which are said to have opened to him, and which are reported to implicate other murderers than those already known to the public. Such an insinuation might safely be contemned by any one, and must be far too incredible, when made against his Lordship, to find a couple of ears on the respective sides of the most credulous head in the strongholds of credulity itself, to take it in. The Lord Advocate, we suppose, thinks coolly before he acts--finds out some person to be tried--and on grounds inferring probable conviction, before he institutes the trial; and, as our contemporary admits that he is still proceeding in his investigations, the charge of unwillingness to prosecute, seems, even on his own showing, to be very premature, as well as incredible.

We are satisfied that, in the prosecution of Burke and his associates, and in the investigation of the system of murder with which they have been connected, the Lord Advocate has done, and is doing his duty, ably, impartially, and fearlessly, and that he is entitled to the highest praise instead of the slightest censure. Feeling this to be the case, we cannot withhold our humble effort to make it appear so.

_Edinburgh Observer._

The people are not satisfied with the imperfect disclosures that have taken place, and the trivial atonement that is to be made to outraged humanity, by the death of only one of the atrocious gang. There is a cry for blood--more blood--throughout the land; and coming, as it does, from the bulk of the nation, it will require no little discrimination and firmness, on the part of the Public Prosecutor, to see his way clearly, and to keep it when he has found it. A more difficult situation than his, at the present time, we cannot well imagine. Even the activity of the press, in reiterating the calls for further inquiry and for more victims, at the very moment when he is known to be indefatigably employed in prosecuting the one and searching for the other, has greatly contributed to render his duties more harassing and ungracious. Under a sincere, and, despite what others say, we conceive a just impression, that all the monsters might escape the gallows, as one of them has actually done, by a verdict of “not proven,” he permitted two of them to purchase their worthless lives by bearing testimony against their associates. That the Hares obtained this immunity as being the lesser criminals in his estimation, we do not believe. The fact of the particular murder, which led to the whole discoveries, having been perpetrated under Burke’s roof, naturally pointed out him and his guilty partner as the more immediate objects of legal vengeance. It is evident, that throughout the whole business, the Lord Advocate has been actuated by the most honourable anxiety to investigate the affair to the uttermost; and had he not, at the very outset of the trial, been urged into a concession to the legal scruples of the counsel opposed to him, whose eloquence most assuredly reft one wretch from the clutch of the hangman, not merely one, but three acts of the horrid drama would have been publicly revealed. It is stated, that since the trial, his Lordship and his assistants have been unremitting in their inquiries. He has attended almost every precognition, and surveyed in person the foul abodes which the murderers inhabited, and even the dwellings of their victims. But he refuses to violate the public faith, of which, in this instance he is the custodier, by yielding up the tools he has been forced to employ, to that punishment which they have so abundantly merited, yet from which the nation stands pledged they are redeemed. God forbid that we should advocate the indemnity of these monsters on any ground, save the sanctity of such a pledge. We question greatly, whether Hare and his partner, cast upon the world with ignominy and crime branded on their foreheads, are not more condignly punished, than the wretched man whose days are numbered, and whose doom, it is certainly not uncharitable to predict, will yet overtake them. In the case of Weare’s murder, Probert, one of the accessaries, was admitted to a like immunity. When his foul breath had consigned one of his associates to the gallows, he was allowed to go forth into the world a free man; but, like Cain, he found himself an outcast, and, in the course of a few months, was again arraigned as a felon, convicted, and executed.

Though we dissent from the summary mode of procedure which many people recommend, and conceive that it would be a perilous innovation on the prerogative of the Public Prosecutor to say, that in this instance, his pledge of immunity shall be disregarded, unless some new charge can be substantiated, we view the detestation so unaffectedly expressed by the public towards the whole gang, as consolatory to humanity. Had criminals, with hands so deeply dyed in blood, found even one commiserator or advocate beyond the walls of the Court of Justice--had any man ventured to whisper that the crimes which they have perpetrated are not worthy of death--nay, had not the whole nation lifted up its voice, and declared, that even death itself was but a miserable atonement for crimes so monstrous, we should have regarded it as a national disgrace. It is to be hoped, however, that this laudable spirit will not degenerate into tumultuary violence. The authorities, we are satisfied, will not relax their efforts to develope the whole of these sanguinary atrocities; and, if the correspondence which is at present carrying on between the Lord Advocate and the teachers of anatomy should, in conjunction with other investigations in progress, lead to the inculpation, in the remotest way, of any individual, we are satisfied that nothing will shield the culprit from the vengeance of the law, be his rank or previous respectability what it may. As yet only one individual of that body has been in any way implicated in these horrible transactions; and we know that a feeling is prevalent that he has been treated with greater delicacy than he deserves; but the culpability of one man must not be received as condemnatory evidence against a whole tribe. An earnest desire is entertained by the teachers of anatomy that the fullest investigation should take place; and if criminal laxity in the receipt of subjects can be traced to any particular quarter, an ample exposition will follow. This exposition they are entitled to demand; for the reputation of the whole fraternity is perilled by the revolting suspicions which the crimes of their caterers have engendered.

* * * * *

_The Caledonian Mercury._

THE PUBLIC PROSECUTOR AND HIS APOLOGISTS.

_Mieux cents ennemis qu’un imprudent ami._--French Proverb.

The remarks which appeared in our Monday’s publication, on the defence of the Lord Advocate inserted in a contemporary Journal of Friday last, have been reviewed, not answered, in the columns of the same paper of Tuesday; and were it not of the very greatest importance, at the present moment, that the public should be accurately informed respecting some of the points at issue, we should have been well content to leave the subject to the decision of all competent persons, upon our first and somewhat hurried statement. We trust that we shall be excused for proceeding at once to deal with the only matters of law and fact to which the writer has thought proper to advert.