WILLIAM BURKE,

as he appeared at the Bar,
taken in Court.

Published by Thomas Ireland Jun^r. Edinburgh.

WEST PORT MURDERS;
OR AN
AUTHENTIC ACCOUNT OF THE ATROCIOUS MURDERS
COMMITTED BY
BURKE AND HIS ASSOCIATES;
CONTAINING
A FULL ACCOUNT OF ALL THE EXTRAORDINARY CIRCUMSTANCES
CONNECTED WITH THEM.
ALSO,
A REPORT OF THE TRIAL
OF
BURKE AND M‘DOUGAL.
WITH
A DESCRIPTION OF THE EXECUTION OF BURKE,
HIS CONFESSIONS, AND MEMOIRS OF HIS ACCOMPLICES,
INCLUDING
THE PROCEEDINGS AGAINST HARE, &c.

ILLUSTRATED BY PORTRAITS AND VIEWS.

“O horror! horror! horror! tongue nor heart

Cannot conceive nor name thee!”

Macbeth.

EDINBURGH:
PUBLISHED BY THOMAS IRELAND, JUNIOR,
57, SOUTH BRIDGE STREET.
1829.

EDINBURGH:
PRINTED BY A. BALFOUR AND CO. HIGH STREET.

CONTENTS.

LIST OF PLATES.

THE WEST PORT MURDERS.

We have heard a great deal of late concerning “the march of intellect” for which the present age is supposed to be distinguished; and the phrase has been rung in our ears till it has nauseated us by its repetition, and become almost a proverbial expression of derision. But we fear that, with all its pretended illumination, the present age must be characterized by some deeper and fouler blots than have attached to any that preceded it; and that if it has brighter spots, it has also darker shades and more appalling obscurations. It has, in fact, nooks and corners where every thing that is evil seems to be concentrated and condensed; dens and holes to which the Genius of Iniquity has fled, and become envenomed with newer and more malignant inspirations. Thus the march of crime has far outstripped “the march of intellect,” and attained a monstrous, a colossal development. The knowledge of good and evil would seem to have imparted a fearful impulse to the latter principle; to have quickened, vivified, and expanded it into an awful and unprecedented magnitude. Hence old crimes have become new by being attended with unknown and unheard-of concomitants; and atrocities never dreamt of or imagined before have sprung up amongst us to cover us with confusion and dismay. No one who reads the following report of the regular system of murder, which seems to have been organised in Edinburgh, can doubt that it is almost wholly without example in any age or country. Murder is no novel crime; it has been done in the olden time as well as now; but murder perpetrated in such a manner, upon such a system, with such an object or intent, and accompanied by such accessory circumstances, was never, we believe, heard of before, and, taken altogether, utterly transcends and beggars every thing in the shape of tragedy to be found in poetry or romance. Even Mrs. Radcliffe, with all her talent for imagining and depicting the horrible, has not been able to invent or pourtray scenes at all to be compared, in point of deep tragical interest, with the dreadful realities of the den in the West Port. To show this, we shall endeavour to exhibit a faint sketch of the more prominent circumstances attending the murder of the woman Campbell or Docherty, as proved in evidence at the trial.

In the morning of a certain day in October last (the 31st) Burke chances to enter the shop of a grocer, called Rymer; and there he sees a poor beggar woman asking charity. He accosts her, and the brogue instantly reveals their common country. The poor old woman’s heart warms to her countryman, and she tells him that her name is Docherty, and that she has come from Ireland in search of her son. Burke, on the other hand, improves the acquaintance, by pretending that his mother’s name was also Docherty, and that he has a wondrous affection for all who bear the same euphonous and revered name. The old woman is perfectly charmed with her good fortune in meeting such a friend in such a countryman, and her heart perfectly overflows with delight. Burke, again, seeing that he has so far gained his object, follows up his professions of regard by inviting Mrs. Docherty to go with him to his house, at the same time offering her an asylum there. The poor beggar woman accepts the fatal invitation, and accompanies Burke to that dreadful den, the scene of many previous murders, whence, she is destined never to return. Here the ineffable ruffian treats her to her breakfast, and as her gratitude rises, his apparent attention and kindness increase. This done, however, he goes in search of his associate and accomplice Hare, whom he informs that he has “got a shot in the house,” and invites to come over at a certain time and hour specified “to see it done.” Betwixt eleven and twelve o’clock at night is fixed upon by these execrable miscreants for destroying the unhappy victim whom Burke had previously seduced into the den of murder and death; and then Burke proceeds to make the necessary arrangements for the commission of the crime. Gray and his wife, lodgers in Burke’s house, and whom the murderers did not think it proper or safe to entrust with the secret, are removed for that night alone: another bed is procured for them, and paid for, or offered to be paid for, by Burke. By and by the murderers congregate, and females, cognisant of their past deeds, as well as of the crime which was to be perpetrated, mingle with them in this horrid meeting. Spirituous liquor is procured and administered to the intended victim; they all drink mere or less deeply; sounds of mirth and revelry are heard echoing from this miniature pandæmonium; and a dance, in which they all, including the beggar woman, join, completes these infernal orgies. This is kept up for a considerable while, and is the immediate precursor of a deed which blurs the eye of day, and throws a deeper and darker shade around the dusky brow of night.

At length the time for “doing it” arrives. Burke and Hare got up a sham fight, to produce a noise of brawling and quarrelling, common enough in their horrid abode; and when this has been continued long enough as they think, Burke suddenly springs like a hungry tiger on his victim, whom one of his accomplices had, as if by accident, thrown down,—flings the whole weight of his body upon her breast,—grapples her by the throat,—and strangles her outright. Ten minutes or a quarter of an hour elapse while this murderous operation is going on, and ere it is completed; during the whole of which time Hare, by his own confession in the witness-box, sat upon the front of the bed, a cool spectator of the murder, without raising a cry or stretching out a hand to help the unhappy wretch thus hurried into eternity by his associate fiend Burke. As to the women (Helen M‘Dougal, Burke’s helpmate, and the wife of the miscreant Hare) they seem to have retreated into a passage closed in by an outer door, “when they saw him (Burke) on the top of her” (Docherty), and to have remained there while he was perpetrating the murder; without, however, uttering a single sound or doing a single act, calculated to interrupt the murderer in his work of blood, or to procure assistance to the dying victim. These she-devils were familiar with the work of death; and one of them, the wife of Hare, confessed it in the witness-box. She had seen, she said, such “tricks” before.

No language can add to the impression which these facts are calculated to produce. The succeeding events, however, are not less picturesquely horrifying. The murder was committed at eleven o’clock, and in an hour after, or at twelve, Burke fetches Paterson, the assistant or servant of a teacher of Anatomy in Edinburgh, to whom he was in the habit of selling the bodies of his victims, to the spot—the murdered body being by this time stuffed under the bed and covered with straw; and, pointing to that truly dreadful place, tells him that he has got a subject for him there, which will be ready for him in the morning. The demons then appear to have recreated themselves with fresh dozes of liquor; and about four or five in the morning, the two women already mentioned, with a fellow of the name of Broggan who had joined the party, after the deed was done,—laid down in the bed, beneath which the murdered body of Docherty, not yet cold in death, had been crammed, and went to sleep, some of them at least, as coolly as if nothing of the kind had occurred. When daylight returned, the tea-box, so often mentioned in the course of the trial, was procured, and the slaughtered body crammed into it, and sent off by the porter M‘Culloch, to Surgeons’ Square; after which Burke and his accomplice Hare set off for Newington to obtain the whole or part of the price of the subject they had procured by murder, and actually got five pounds, being one-half of the price agreed upon.[1]

Such is an imperfect and feeble outline of the facts of this case, in the course of which was disclosed the horrid and appalling fact, that, in certain holes and dens, both in the heart and in the outskirts of this city, murder had been reduced into a system, with the view of obtaining money for the bodies murdered; and that it was perpetrated in the manner least likely to leave impressed upon the body any evident or decisive marks of violence, being invariably committed by means of suffocation or strangling, during partial or total intoxication. The public is therefore to consider the present as only one out of many instances of a similar nature which have occurred. Hare’s wife admitted that she had witnessed many “tricks” of the same kind; and Hare himself, when undergoing the searching cross-examination of Mr. Cockburn—a cross-examination such as was never before exemplified in any Court of Justice—durst not deny that he had been concerned in other murders besides that of Docherty;—that a murder had been committed in his own house in the month of October last;—that he himself was a murderer, and his hands steeped in blood and slaughter: we say he durst not deny it, and only took refuge in “declining to answer” the questions put to him; which the Court of course apprised him he was entitled to do in regard to questions that went to criminate himself so deeply, and but for which caution we have little doubt that he would have confessed not merely accession, but a principal share in several murders. In fact, this “squalid wretch,” as Mr. Cockburn so picturesquely called him, from the hue and look of the carrion-crow in the witness-box, was disposed to be extremely communicative, and apparently had no idea that any thing he had stated was at all remarkable or extraordinary. Daft Jamie was murdered in this miscreant’s house, and he has mentioned some circumstances connected with the destruction of this poor innocent, calculated to form a suitable pendant to the description we have already given of the murder of Docherty. Jamie was enticed into Hare’s house by Burke, the usual decoy-duck in this traffic of blood (the appearance of Hare himself being so inexpressibly hideous that it would have scared even this moping idiot,) and he was plied with liquor for a considerable time. At first he refused to imbibe a single drop; but by dint of coaxing and perseverance, they at last induced him to take a little; and after he once took a little, they found almost no difficulty in inducing him to take more. At length, however, he became 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 getting impatient to accomplish his object, he suddenly threw himself upon Jamie, and attempted to strangle him. This roused the poor creature, and, muddled as he was with liquor and sleep, he threw Burke off and got to his feet, when a desperate struggle ensued. Jamie fought with the united frenzy of madness and despair, and Burke was about to be overpowered, when he called out furiously to Hare to assist him. This Hare did by tripping up Jamie’s heels; after which both the ruffians got upon him, and, at length, though not even then without the greatest difficulty, succeeded in strangling him.

And all this has happened and has been carried on in a Christian country, and in the Metropolis of Scotland, without a breath of suspicion having been excited as to the existence of such hellish atrocities, till Gray lodged information at the Police Office of the murder of the woman Campbell or Docherty. It was said at the trial, that the public mind had been excited and inflamed on the subject to a degree wholly unprecedented; but how is it conceivable or possible that even the lightest whisper of such infernal deeds—of an organised system of murder—could find its way to the public, without producing this excitement, without kindling up every feeling of horror and indignation which the darkest and most unheard-of atrocities could possibly rouse in virtuous and untainted minds? This was a natural result of a great and unparalleled crime, or rather system of crimes; it was a result which no power or influence could prevent; it was a result which, even if it had been possible, ought not to have been prevented. But as this excitement existed—as it had more or less pervaded every mind—and as it might eventually, if not controlled, have interfered with and affected the administration of stern justice, it was right, nay it was necessary, both for the sake of public justice and also for the satisfaction of the country, that the prisoners should be ably and powerfully defended. Under this conviction, the head of the Bar of Scotland, in conjunction with some other of its brightest ornaments, came forward to offer their gratuitous services on the occasion; and certainly never was there a defence in any case conducted with more consummate ability—never perhaps was there a trial in which higher talent, greater experience, or more splendid and overmastering eloquence were displayed. And we rejoice that such has been the case. Conduct like this reflects eternal honour on the Bar; because there are instances in which it may throw a shield around innocence; while, in every case, it is calculated to preserve the course of justice pure and undefiled, as well to give additional satisfaction to the country, to create additional confidence in the purity of the law, and to beget a stronger feeling of security in the protection which it affords. The most atrocious crimes are precisely those which ought to be most cautiously and fully investigated; where prejudice of all sorts ought to be most anxiously excluded or counteracted; where every facility in the power of the Court to give, ought to be afforded to the prisoner, both in preparing for his defence and on his trial; where the rules of evidence ought to be most strictly adhered to, in so far as regards either the admissibility or credibility of testimony; where the accused should have the fullest benefit of every presumption in his favour; and where his defence, ought if possible, to be conducted with the greatest legal ability. Now Burke had all these advantages. The Court, in the exercise of the discretion with which it is entrusted, adjudged the trial of the prisoner to proceed upon only one of three separate acts of murder charged against him in the indictment; while the splendid array of Counsel, who voluntarily and gratuitously undertook the conduct of his defence, exerted their whole skill, talents, and eloquence, in his behalf. And we repeat that we rejoice at this; for, as was well observed by the Lord Advocate in addressing the Jury for the Crown upon the evidence which had been led, if the prisoner had any good defence, it was thus sure to have ample justice done to it; and if a conviction was obtained, it would be more satisfactory to the country, and infinitely more important to the purity and efficacy of the law.

In these circumstances, however, a conviction has been obtained against the pannel Burke—the prime murderer—the immediate and direct agent by whom the crime charged was committed—the agent also, we firmly believe, by whom not three but thirteen persons were slaughtered, with the intent of excambing their murdered bodies for gold; this monster, we say, has been convicted, and adjudged to suffer the highest punishment of the law: and, with a sort of poetical justice, he who made subjects of others, is to be made a subject himself, and he now knows that his vile carcass, when the hangman is done with it, will be subjected to the same process with the bodies of his murdered victims. The idea of hanging him in chains would have been out of all keeping with his crime; and hence, though once entertained, it was most properly and judiciously abandoned. But the conviction of Burke alone will not satisfy either the law or the country. The unanimous voice of society in regard to Hare is, Delendus est; that is to say, if there be evidence to convict him, as we should hope there is. He has been an accessory before or after the fact in nearly all of these murders; in the case of poor Jamie he was unquestionably a principal; and his evidence on Wednesday only protects him from being called to account for the murder of Docherty. We trust, therefore, that the Lord Advocate, who has so ably and zealously performed his duty to the country upon this occasion, will bring the “squalid wretch” to trial, and take every other means in his power to have these atrocities probed and sifted to the bottom.

Trial of William Burke and Helen M‘Dougal.

No trial in the memory of any man living has excited so deep, universal, and, we may almost add, appalling an interest as that of William Burke and his female associate, Helen M‘Dougal, which took place on Wednesday, 24th December, 1828. By the statements which from time to time appeared in the newspapers, public feeling had been worked up to the highest pitch of excitement, and the case, in so far as the miserable pannels were concerned, to a certain extent prejudiced by the natural abhorrence which the account of a new and unparalleled crime was calculated to excite. This, however, is an evil inseparable from the freedom, activity, and enterprise of the press, which is necessarily compelled to lay hold of the events of the passing hour, more especially when these are of an extraordinary or unprecedented kind: but it was more than atoned for by many countervailing advantages of the greatest moment to the interests of the community; and, besides, we are satisfied that any prejudice or prepossession thus created, was anxiously and effectually excluded from the minds of the jury, by whom this singular case was tried, and that they were swayed by no consideration except a stern regard to the sanction of their oaths, the purity of justice, and the import of the evidence laid before them. At the same time, it was not so much to the accounts published in the newspapers, which merely embodied and gave greater currency to the statements circulating in society, as to the extraordinary, nay, unparalleled circumstances of the case, that the strong excitement of the public mind ought to be ascribed. These were without any precedent in the records of our criminal practice, and, in fact, amounted to the realization of a nursery tale. The recent deplorable increase of crime has made us familiar with several new atrocities. Poisoning is now, it seems, rendered subsidiary to the commission of theft: stabbings, and attempts at assassination, are matters of almost every day occurrence: and murder has grown so familiar to us, that it has almost ceased to be viewed with that instinctive and inexpressible dread which the commission of the greatest crime against the laws of God and society used to excite. But the present was the first instance of murder alleged to have been perpetrated with the aforethought purpose and intent of selling the murdered body as a subject for dissection to anatomists: it was a new species of assassination, or murder for hire: and as such, no less than from the general horror felt by the people of this country at the process, from ministering to which the murderers expected their reward, it was certainly calculated to make a deep impression on the public mind, and to awaken feelings of strong and appalling interest in the issue of the trial.

Of the extent of the impression thus produced, and the feelings thus awakened, it was easy to judge from what was every where observable on Monday and Tuesday. The approaching trial formed the universal topic of conversation, and all sorts of speculations and conjectures were afloat as to the circumstances likely to be disclosed in the course of it, and the various results to which it would eventually lead. As the day drew near, the interest deepened; and it was easy to see that the common people shared strongly in the general excitement. The coming trial, they expected, was to disclose something which they had often dreamed of, or imagined, or heard recounted around an evening’s fire, like a tale of horror, or a raw-head-and-bloody-bones story, but which they never, in their sober judgment, either feared or believed to be possible; and hence, they looked forward to it with corresponding but indescribable emotions. In short, all classes participated more or less in a common feeling respecting the case of this unhappy man and his associate; all expected fearful disclosures; none, we are convinced, wished for any thing but justice.

As it was morally certain that a vast crowd would be assembled early on Wednesday, arrangements were made on Tuesday, under the immediate superintendence of Mr. Sheriff Duff, for the admission of jurymen by the door which connects the Signet Library with the Outer House, and also for the accommodation of the individuals connected with the public press. One half of the Court, the narrow dimensions of which have been often complained of, and in fact were never more seriously felt, was, as usual on such occasions, reserved for the members of the Faculty and the Writers to the Signet in their gowns.

So early as seven o’clock in the morning of Wednesday, a considerable crowd had assembled in the Parliament Square, and around the doors of the Court; and numerous applications for admission were made to the different subordinate functionaries, but in vain. The regulations previously agreed upon were most rigorously observed; while a large body of police, which was in attendance, maintained the utmost order, and kept the avenues to the Court unobstructed. The individuals connected with the press were conducted to the seats provided for them a little before eight o’clock; the members of the Faculty and of the Society of Writers to the Signet were admitted precisely at nine; and thus, with the jurymen impannelled, and a few individuals who had obtained the entrée in virtue of orders from the Judges, the Court became at once crowded in every part.

About twenty minutes before ten o’clock, the prisoners, William Burke and Helen M‘Dougal, were placed at the bar. The male prisoner, as his name indicates, is a native of Ireland. He is a man rather below the middle size, but stoutly made, and of a determined, though not peculiarly sinister expression of countenance. The contour of his countenance, as well as his features, are decidedly Milesian. His face is round, with high cheek bones, grey eyes, a good deal sunk in the head, a short snubbish nose, and a round chin, but altogether of a small cast. His hair and whiskers, which are of a light sandy colour, comport well with the make of the head, and with the complexion which is nearly of the same hue. He was dressed in a shabby blue surtout, buttoned close to the throat, a striped cotton waistcoat, and dark-coloured small clothes, and had, upon the whole, what is called in this country a waugh rather than a ferocious appearance; though there is a hardness about the features, mixed with an expression in the grey twinkling eyes, far from inviting. The female prisoner is fully of the middle size, but thin and spare made, though evidently of large bone. Her features are long, and by no means disagreeable,—a pair of large, full, black eyes, imparting to them even something of interest and expressiveness; but the upper half of her face is out of proportion to the lower. She was miserably dressed in a small stone-coloured silk bonnet, very much the worse for the wear, a printed cotton shawl, and a cotton gown. She stoops considerably in her gait, and has nothing peculiar in her appearance, except the ordinary look of extreme penury and misery, common to unfortunate females of the same degraded class. Both prisoners, especially Burke, entered the Court without any visible signs of perturbation, and both seemed to attend very closely to the proceedings which soon after commenced.

The Court met at precisely a quarter past ten o’clock. The Judges present were, the Right Honourable the Lord Justice Clerk, and Lords Pitmilly, Meadowbank, and Mackenzie. Their Lordships having taken their seats, and the instance having been called,

The Lord Justice Clerk said—William Burke, and Helen M‘Dougal, pay attention to the indictment that is now to be read against you.

Mr. Patrick Robertson.—I object to the reading of the indictment. It contains charges which I hope to be able to show your Lordships are incompetent, and the reading of the whole of the libel must tend materially to prejudice the prisoners at the bar.

The Lord Justice Clerk.—I am unaccustomed to this mode of procedure. It depends upon the Court whether the indictment shall be read or not.

Mr. Patrick Robertson.—Certainly, my Lord; but I understand it is not necessary to read the indictment; and we object to its being done on the present occasion.

Lord Justice Clerk.—We have found but little advantage to result from the practice recently introduced of not reading the indictment. It has rendered constant explanations necessary, and consumes more time the one way than the other.

Mr. Cockburn.—We object to the indictment being read, because it is calculated to prejudice the prisoner. Our statement is, that it contains charges, the reading of which cannot fail to operate against him, and that these charges make no legal part of the libel.

Lord Meadowbank.—I am against novelties; I am against interfering with the discretion of the Court.

The indictment was then read as follows:—

William Burke and Helen M‘Dougal, both present prisoners in the tolbooth of Edinburgh, you are indicted and accused at the instance of Sir William Rae of St. Catharine’s, Bart. 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, actor or actors, or art and part: In so far as, on one or other of the days between the 7th and 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 preceding, 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, 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 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 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 and now or lately in the occupation of William Haire or Hare, then and 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 porter, and then and now or lately residing in Stevenlaw’s Close, High Street, Edinburgh, and did leap and 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 of them, 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 and intent of disposing of or selling the body of the said James Wilson, when so murdered, to a physician or surgeon, or to 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. (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, on 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 Stuart, 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, or 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‘Donegal, 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 thus you, both and each, or one or other of you, did, with the wicked aforethought intent of disposing of or selling the body of the said Madgy or Margery or Mary M‘Gonegal, or Duffie, or Campbell, or Docherty, when so murdered, to a physician or surgeon, or to 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: 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, at Edinburgh, emit and subscribe five several declarations of the dates respectively following, viz.:—The 3d, 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 3d and another upon the 18th 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 being 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 brass 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-stripped cotton 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 about 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 you the said William Burke and Helen M‘Dougal, before the Lord Justice-General, the Lord Justice Clerk, and the 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.

A. WOOD, A.D.

LIST OF WITNESSES.

• 1 George Tait, Esquire, sheriff-substitute of the shire of Edinburgh.
• 2 Archibald Scott, procurator-fiscal of said shire.
• 3 Richard John Moxey, now or lately clerk in the sheriff-clerk’s office, Edinburgh.
• 4 Archibald M‘Lucas, now or lately clerk in the sheriff-clerk’s office, Edinburgh.
• 5 Janet Brown, now or lately servant to, and residing with, Isabella Burnet or Worthington, now or lately residing in Leith Street, in or near Edinburgh.
• 6 The foresaid Isabella Burnet or Worthington.
• 7 Elizabeth Graham or Burke, wife of Constantine Burke, now or lately scavenger in the employment of the Edinburgh police, and now or lately residing in Gibb’s close, Canongate, Edinburgh.
• 8 The foresaid Constantine Burke.
• 9 Jean Anderson or Sutherland, wife of George Sutherland, now or lately silversmith, and now or lately residing in Middleton’s Entry, Potter-row, Edinburgh.
• 10 William Haire or Hare, present prisoner in the tolbooth of Edinburgh.
• 11 Margaret Laird or Haire or Hare, wife of the foresaid William Haire or Hare, and present prisoner in the tolbooth of Edinburgh.
• 12 Jean M‘Donald or Coghill, wife of Daniel Coghill, now or lately shoemaker, and now or lately residing in South St. James’s street, in or near Edinburgh.
• 13 Margaret M‘Gregor, now or lately servant to, and residing with, John Clark, now or lately baker, and now or lately residing in Rose street, in or near Edinburgh.
• 14 Richard Burke, son of, and now or lately residing with, the foresaid Constantine Burke.
• 15 William Burke, son of, and now or lately residing with, the foresaid Constantine Burke.
• 16 Janet Wilson or Downie, wife of James Downie, now or lately porter, and now or lately residing in Stevenlaw’s close, High street, Edinburgh.
• 17 Mary Downie, daughter of, and now or lately residing with, the foresaid James Downie.
• 18 William Cunningham, now or lately scavenger in the employment of the Edinburgh police, and now or lately residing in Fairley’s Entry, Cowgate, Edinburgh.
• 19 George Barclay, now or lately tobacconist in North College street, in or near Edinburgh.
• 20 David Dalziell, now or lately copperplate printer, and now or lately residing with his father, George Dalziell, now or lately painter, and now or lately residing in North Fowlis’ close, High street, Edinburgh.
• 21 Margaret Newbigging or Dalziell, wife of the foresaid David Dalziell.
• 22 Joseph M‘Lean, now or lately tinsmith, and now or lately residing in Coul’s close, Canongate, Edinburgh.
• 23 Andrew Farquharson, now or lately sheriff-officer in Edinburgh.
• 24 George M‘Farlane, now or lately porter, and now or lately residing in Paterson’s court, Lawnmarket, Edinburgh.
• 25 John Brogan, now or lately in the employment of John Vallence, now or lately carter, and now or lately residing in Semple street, near Edinburgh.
• 26 Janet Lawrie or Law, wife of Robert Law, now or lately currier, and now or lately residing in Portsburgh or Wester Portsburgh, in or near Edinburgh.
• 27 Ann Black, or Connaway, or Conway, wife of John Connaway or Conway, now or lately labourer, and now or lately residing in Portsburgh or Wester Portsburgh aforesaid.
• 28 The foresaid John Connaway or Conway.
• 29 William Noble, now or lately apprentice to David Rymer, now or lately grocer and spirit-dealer in Portsburgh or Wester Portsburgh aforesaid.
• 30 James Gray, now or lately labourer, and now or lately residing with Henry M‘Donald, now or lately dealer in coals, and now or lately residing in the Grassmarket, Edinburgh.
• 31 Ann M‘Dougall or Gray, wife of the foresaid James Gray.
• 32 Hugh Alston, now or lately grocer, and now or lately residing in Portsburgh or Wester Portsburgh aforesaid.
• 33 Elizabeth Paterson, daughter of, and now or lately residing with, Isabella Smith or Paterson, now or lately residing in Portsburgh or Wester Portsburgh aforesaid.
• 34 The foresaid Isabella Smith or Paterson.
• 35 John M‘Culloch, now or lately porter, and now or lately residing in Alison’s close, Cowgate, Edinburgh.
• 36 John Fisher, now or lately one of the criminal officers of the Edinburgh police establishment.
• 37 John Findlay, now or lately one of the patrole of the Edinburgh police establishment.
• 38 James Paterson, now or lately lieutenant of the Edinburgh police establishment.
• 39 James M‘Nicoll, now or lately one of the serjeants of the Edinburgh police establishment.
• 40 Mary Stewart or Stuart, wife of Roderick Stewart or Stuart, now or lately labourer, and now or lately residing in the Pleasance, near Edinburgh.
• 41 The foresaid Roderick Stewart or Stuart.
• 42 Charles M‘Lauchlan, now or lately shoemaker, and now or lately residing with the foresaid Roderick Stewart or Stuart.
• 43 Elizabeth Main, now or lately servant to the foresaid William Haire or Hare.
• 44 Robert Knox, M. D. lecturer on Anatomy, now or lately residing in Newington place, near Edinburgh.
• 45 David Paterson, now or lately keeper of the Museum belonging to the foresaid Dr. Robert Knox, and now or lately residing in Portsburgh, or Wester Portsburgh aforesaid, with his mother, the foresaid Isabella Smith or Paterson.
• 46 Thomas Wharton Jones, now or lately surgeon, and now or lately residing in West Circus place, in or near Edinburgh, with his mother, Margaret Cockburn or Jones.
• 47 William Ferguson, now or lately surgeon, and now or lately residing in Charles street, in or near Edinburgh, with his brother, John Ferguson, now or lately writer.
• 48 Alexander Miller, now or lately surgeon, and now or lately residing in the lodgings of Elizabeth Anderson or Montgomery, now or lately residing in Clerk street, in or near Edinburgh.
• 49 Robert Christison, M. D. now or lately Professor of Medical Jurisprudence in the University of Edinburgh.
• 50 William Pulteny Alison, M. D. now or lately Professor of the Theory of Physic in the University of Edinburgh.
• 51 William Newbigging, now or lately surgeon, and now or lately residing in St. Andrew’s square, Edinburgh.
• 52 Alexander Black, now or lately surgeon to the Edinburgh police establishment.
• 53 James Braidwood, now or lately builder, and master of fire-engines on the Edinburgh police establishment.
• 54 Alexander M‘Lean, now or lately sheriff-officer in Edinburgh.
• 55 James Evans, student of medicine, now or lately residing with Mr. James Moir, surgeon, residing in Tiviot-row, in or near Edinburgh.

A. WOOD, A. D.

Dean of Faculty.—We have given in separate defences, which may as well be read now,—beginning with the defences for the male prisoner.

The defences for Burke was then read as follows:

The pannel submits that he is not bound to plead to, or to be tried upon a libel, which not only charges him with three unconnected murders, committed each at a different time, and at a different place, but also combines his trial with that of another pannel, who is not even alleged to have had any concern with two of the offences of which he is accused. Such an accumulation of offences and pannels is contrary to the general and the better practice of the Court; it is inconsistent with right principle, and indeed, so far as the pannel can discover, is altogether unprecedented; it is totally unnecessary for the ends of public justice, and greatly distracts and prejudices the accused in their defence. It is therefore submitted that the libel is completely vitiated by this accumulation, and cannot be maintained as containing a proper criminal charge. On the merits of the case, the pannel has only to state that he is not guilty, and that he rests his defence on a denial of the facts set forth in the libel.

The defences for Helen M‘Dougal were next read as follows:

If it shall be decided that the prisoner is obliged to answer to this indictment at all, her answer to it is, that she is not guilty, and that the Prosecutor cannot prove the facts on which his charge rests. But she humbly submits that she is not bound to plead to it. She is accused of one murder committed in October 1828, in a house in Portsburgh, and of no other offence. Yet she is placed in an indictment along with a different person, who is accused of other two murders, each of them committed at a different time, and at a different place, it not being alleged that she had any connection with either of these crimes. This accumulation of pannels and of offences is not necessary for public justice, and exposes the accused to intolerable prejudice, and is not warranted, so far as can be ascertained, even by a single precedent.

Mr. Patrick Robertson then addressed the Court in support of the defences. In this indictment there were two prisoners named, but these two prisoners did not appear on the face of it to have any connection with each other. The major proposition contained a simple charge of murder, without specifying any aggravation. In the minor proposition, however, there were three distinct and totally unconnected charges of murder. The first was against Burke alone, and was charged as having been committed in April last, in a house in the Canongate. But it was not stated that he had any accomplices. He was the sole person charged with that offence. It appeared, indeed, from the description of the crime, that he was charged “with the wicked, aforethought purpose and intent, of disposing of and selling the body, when murdered, as a subject for dissection, or with some other wicked and felonious purpose and intent to the Prosecutor unknown.” But, while, on the one hand, there was no aggravation laid in the major proposition; yet on the other the Prosecutor did not confine himself to one species of intent, but libelled two—the intent to sell the body to the surgeons, and some other sort of vague undefined species of intent to the Prosecutor himself unknown. The second article in the indictment charged another murder, alleged to have been committed in the month of October, in a place called Tanner’s Close, in Wester Portsburgh. In this charge also William Burke is the only person accused of that offence, and the intent laid is the same as in the former instance. Then there was a charge of a third murder, committed at a different place and time, viz. at a house in Portsburgh on the 31st October; in which charge both William Burke and Helen M‘Dougal were included: and, after describing the offence, the intent libelled is the same as in the two former cases. Thus we had three murders charged against the prisoners; two against Burke alone, and one against Burke in conjunction with M‘Dougal; all of which were committed at different times and in different places, without any connection whatever between them: and these charges were laid without any aggravation. Then five different declarations by Burke, and two by M‘Dougal, were also libelled on, together with eight articles to be adduced as evidence against the former, and six against both; and in addition to all this, they were served with a list of fifty-five witnesses by whom these different and totally unconnected charges were to be proved. Now the question was, whether this charge, involving such an accumulation of unconnected offences, was consistent with our practice, with the humane principles of our law, and with that sound and proper discretion which the Court was not only entitled, but bound to exercise. But the first and most material point was, whether the prisoners would suffer prejudice by the mode in which the libel had been framed; for if that could be made out, it would justify their Lordships in the exercise of the discretion with which they were entrusted, in separating the different charges, or in selecting one prisoner, and postponing another, according to the circumstances of the case. The question then was, whether the prisoners would suffer prejudice in going to trial with the libel as it now stood. And, in considering this, it would be observed that it was not charged that there was any natural connection between the crimes committed. There was certainly none in law; and with the exception of the mode of the murder and the intent, there was not the slightest pretence for saying there was any connection between them. But the intent was not laid absolutely and peremptorily. It was conditional: “Either you committed these acts with the wicked, aforethought purpose and intent of selling the bodies to the surgeons for dissection, or with some other purpose or intent to the Prosecutor unknown.” This indeed would compel the Prosecutor to prove that the murder was committed for the purpose of handing over the bodies to dissection; but he might also bring in under it a very different purpose or object, as, for example, that it was done for the purpose of robbery, or to gratify private revenge. In the major proposition, however, there was no aggravation; and it was not said that there had been any conspiracy, that these murders were part of a system; they were laid as three unconnected offences, committed at different times and at different places. Now he prayed their Lordships to keep in mind that murder was not like any of the other offences which usually occurred in the practice of the Supreme Criminal Court; it was one which, in every case, when brought home to a pannel, was visited with the highest punishment of the law; and therefore it differed from all the offences to which it was sometimes likened, and required greater caution on the part of those by whom it was to be tried. As applicable to the case of Burke, however, three murders were charged; and this charge was calculated in the most serious degree to prejudice him. Each specific offence, it might be said, would require to be supported by its own specific evidence; but it was impossible to find any jury so dispassionate as not to borrow some light from the one to enable them to decide on the other; it was impossible for the jury to separate the evidence in one case from that in another; it was impossible that one murder not proved could be separated from any light thrown upon it by another not proved; nay, though neither the one nor the other might be proved, it might still be held, that upon the whole, from the massing or blending of unconnected acts, enough was made out to warrant a conviction. And all this was aggravated by the prejudice arising from the manner in which the alleged murders were said to have been committed, and in regard to which so strong a degree of excitement existed in the public mind. Then observe the oppression in the preparation of the trial; observe the situation in which the pannels were placed. Three murders were charged, with a list of fifty-five witnesses; besides seven declarations, five by the one, and two by the other. One set, it might be said, was against one prisoner, and the other against the other; but it was impossible so to separate, or to analyse the evidence as not to admit against the one evidence which was calculated to affect the other; and by thus mixing up and massing together the whole into an unnecessary accumulation of crime, to come to the same conclusion in regard to both. Look to the case of Helen M‘Dougal, and it will be seen the prejudice must operate still more strongly against her. She is accused of only one crime, and it is not said that she had any connection with the others. But this charge of murder, committed in the latter end of October, is brought to trial, combined with two others committed, one in April, six months previously, and the other in the beginning of October. Where is this to stop? If the Prosecutor is allowed to proceed in this way, may he not on the same principle combine ten murders against ten prisoners, accused of ten different offences, committed in as many different counties? He submitted that there must be some limitation; and the question was, whether the Court could sustain the present charge by which one individual, accused of one offence, is mixed up with another, accused of two, with which she is not alleged to have had any concern. Imagine this case. At the end of the indictment, eight articles were specified against Burke, and six more against Burke and M‘Dougal conjointly. Take the first—the skirt of a gown—and suppose it proved against Burke alone. It could not be adduced as evidence against Helen M‘Dougal. But suppose it was traced into her possession, and that a witness was called to prove that it belonged to Mary Paterson or Mitchell. This would be conclusive as to M‘Dougal’s connection with Burke. But it might be said that the Judge would tell the Jury to strike this out of their notes. That was an easy operation; but could they strike it out of their minds as easily as out of their notes? Then in what circumstances would Helen M‘Dougal be placed? An article not libelled against her would be checkmate to her defence. She would be taken by surprise,—she would be thrown off her guard; and although the gown had come fairly and honestly into her possession she could produce no evidence to instruct the fact. He put this as an illustration. So far as the female prisoner was concerned it would be fatal.

But was this a legal proceeding? If there be a prejudice existing, the prisoner is entitled to the fairest possible defence. The more atrocious the offence, the more guarded and cautious ought to be the modes of procedure. So far, however, as they could discover from the records of the Court, this was the first case in which it had been attempted to charge three murders in the same indictment. There had been several instances of three persons slain at the same time, as in the Aberdeen riots, by a discharge of musketry, and in the case where a whole family was poisoned: these, however, as Mr. Hume observed, were all parts of the same foul and atrocious offence. But there was no example, in the history of the Court, of combining three unconnected offences against one person; far less of combining three against one person who was not alleged to have any connection with two of them, and was only implicated in a third, which had no manner of connection with those which preceded it. Sir George Mackenzie, who would not be suspected of any partiality to the prisoner, laid down the principle most clearly, that different parties ought not to be thus combined in an indictment. “A person accused,” says he, “was not obliged to answer of old but for one crime in one day, except where there were several pursuers, Quoniam Attachiamenta, cap. 65. by which, accumulation of crimes was expressly unlawful, sed hodie aliter obtinet, for now there is nothing more ordinar nor to see five or six persons in one summonds or indictment; and to see one accuser pursue several summondses; and yet seeing crimes are of so great consequence to the defender, and are of so great intricacy, it appears most unreasonable that a defender should be burthened with more than one defence at once; and it appears that accumulation of crimes is intended, either to læse the fame of the defender, or to distract him in his defence.” Title 19, § 7. Here the principle was brought out in the clearest manner—that salutary principle which says that no man ought to be called upon to answer to more than one crime in one libel; since the accumulation of crimes was calculated “either to læse the fame of the prisoner, or to distract him in his defence.” The learned Counsel then referred to the work of Mr. Baron Hume. That learned author treats of the accumulation of crimes under different heads: first, of those which are of one name and species, and of one class and general description; secondly, of those criminal acts, though of different kinds and appellations, have a natural relation and dependence; and, thirdly, of that sort of cumulatio actionum, which consists in the charging of several persons in the same libel with separate and unconnected crimes. The first of these, he argued, had no relation to the present case, because it did not include murder. All the cases referred to were cases of housebreaking and theft; and though the former was a capital offence, yet it was a very different one from murder. No case of the latter was indeed quoted. The author treated merely of connected crimes, as robbery and murder. But no injury was done by such accumulation. They were parts of the same foul and atrocious proceeding, and they had a natural and necessary dependence. But in the present case there was no natural dependence, and not even an allegation that the prisoners were connected.

He then proceeded to the consideration of heterogenous charges, as of murder and of theft. Some of these, he said, were not cases to be followed at the present day: and he instanced that of Walter Buchanan, who was accused of ten different crimes in one libel; namely, fire-raising, attempts at fire-raising, attempts to poison, theft, reset of theft, the harbouring, out-hounding, and maintaining of thieves and robbers, sorning and levying black mail, and killing and eating of other people’s sheep. Here, however, the Lords restricted the trial to the more special charges. He now came to the principle, and mentioned a case in 1784, when the Lord Advocate did depart from several of the charges. In regard to accumulation of parties, Mr. Hume put a case of several persons being called to answer in one libel for the same fact; but then, observe the remedy. “On any occasion when they see cause, especially if it appear that the Prosecutor meant to lay the pannels under this disadvantage (he begged to disclaim any insinuation that such was the intention of the Prosecutor in the present instance,) the Court may and will separate the trials of the several culprits, and send those to an assize, in the first place, by themselves, who are meant to be called as witnesses for the others,” vol. ii. p. 170. The learned Counsel then proceeded to the third sort of cumulatio actionum, that of charging several persons in the same libel with separate and unconnected offences, and contended very ably that the case before the Court fell under this description.

In conclusion, he referred to the English practice as illustrative of the principle for which he had been contending, and referred to a decision of Lord Ellenborough, as reported in Campbell, vol. ii. p. 131, and also to the authority of Chitty, vol. i. p. 252. By the law of England, two felonies may be combined in one charge against two separate prisoners; but it is usual for the Judge, in his discretion, to call upon the prosecutor to make his election, and to proceed with a specific charge against one individual. In point of law they may be combined, but the judges in their discretion separate them; and for this reason among others, that the combination would prejudice prisoners in their challenge of the jury.

The Lord Advocate replied at some length. After complimenting the learned counsel who had just concluded, on the able manner in which he had opened the objections submitted to the consideration of the Court, he stated that he thought them ill-founded. His learned friend mixed up two objections altogether different. His first objection was to bringing two prisoners to trial in the same indictment, and his second to charging three different crimes in that indictment. He would deal very shortly with the first. The woman was charged as having been concerned with the man in one of the three murders. And this was sanctioned by the law of the land. He put her in the indictment that she might not be prejudiced. If she had been put into a separate indictment, the public would have known the whole evidence before she had been put upon her trial, and the prisoner would have had the best possible reason to complain. This would have been the case had he first brought the man to trial, and afterwards the woman, adducing against her the same, or nearly the same evidence, which had previously been adduced against the man. It was to obviate this, and to prevent her from being prejudiced, that he had put her in the same indictment. “God forbid,” said his Lordship, “that any person holding the situation I do, should do any thing to prejudice a prisoner on his trial.” The very contrary motive had guided him; but if he proceeded not against the woman to-day, he would ten days hence, when she could not insist on that which she now says will prejudice her. Nor, in a case of this sort, would he be restrained from doing his duty to the country by any consideration founded upon what were called the interests of science. It was enough for him that a great crime had been committed; a crime unheard of before in any civilized country: that the public mind had in consequence become strongly agitated; and that the duty he owed to the country left him no alternative. He was determined therefore to probe and sift the whole matter to the bottom; nothing should deter him from doing so; and he repeated, that if he was compelled to desert the diet against this woman now, he would infallibly bring her to trial ten days hence. Then she would find whether she had been prejudiced by the whole evidence in this case having gone abroad to the world.

The libel charged three separate acts; and in the major proposition the crime specified was murder without any aggravation. These murders were detached, as having taken place within the last six months; but they were all committed in Edinburgh, and all were charged as having been perpetrated with the same intent, which however is no aggravation. Murder, indeed, could scarcely admit of aggravation. When a prosecutor libels a positive intent, he is tied down to that, and there is no alternative. These cases were all of the same description—all murders, and all committed with the same intent. He admitted, that looking to the proceedings of the Criminal Court, it might be impossible to find a case of three murders combined in one indictment; but the present was a case unprecedented in the annals of this or of any other civilized country. There were numerous examples, however, where different charges were combined in the same libel. The passage quoted from Sir George Mackenzie did not apply to the case before the Court. It referred to a case of a nature totally different. He then quoted Hume II. 166, and maintained, upon his authority, that the crimes charged being all of the same name and species, might properly be included in the same indictment. It would indeed be dreadful if a prisoner, after having committed three murders, could only be tried for one of them. Mr. Hume referred to the case of James Inglis, tried upon three charges of horse-stealing, each of which, if proved, involved a capital punishment. Now, would not every argument which had been employed against the present libel apply to such a charge? Again, two acts of highway robbery were charged in the same indictment, any one of which would have been sufficient, if proved, to lead to a capital conviction. The whole tenor of our practice, indeed, confirmed this mode of procedure, and, if the contrary obtained—if charges of the same nature and description were put in separate indictments, prisoners would be exposed to the intolerable hardship of undergoing trial day after day; a hardship which he conceived would be incomparably greater than any that could possibly arise from the practice now complained of. He then referred to the case of Nairne and Ogilvie. Here it had been objected that there was a cumulatio actionum, but the objection had been repelled. His Lordship then cited the case of James Morton tried at the Glasgow Circuit in 1823 on four separate acts; of Donaldson Buchanan also tried there for stouthrief, housebreaking and theft (all separate acts); of Beaumont, tried at Aberdeen in 1826, where six acts of housebreaking were charged; and of Gillespie, tried at Aberdeen in 1827, upon no less than nine separate acts of forgery. His Lordship then quoted the case of Surridge and Dempster, indicted for two separate acts of murder, committed indeed at the short interval of an hour, but still in all respects completely separate acts. Upon the strength of these consecutive authorities, all of which went to support the principle for which he contended, his Lordship submitted that the objection ought to be repelled.

The Dean of Faculty, in reply to the Lord Advocate, argued powerfully in support of the views which had been opened by Mr. Robertson. His Right Honourable and Learned Friend (the Lord Advocate) might rely upon it that, on the part of the prisoner’s Counsel, no doubt whatever was entertained of the perfect propriety of the motive by which his Lordship had been actuated in framing the present indictment; they were convinced that he had prepared and brought forward the case in the manner which he conceived least likely to prejudice the prisoners or to distract them in their defence. But, on the other hand, he could with equal truth and sincerity assure his Lordship, that the objection now raised had been taken from a firm conviction that the sustaining of it was necessary for the safety of the law, and indispensable to the ends of justice. It had been said that the decisions of the Court ought to be adhered to, that its practice ought not to be infringed upon; and yet it was admitted that the present was the first case which had ever occurred of three separate acts of murder being combined in the same indictment. In this situation, then, were they not justified in submitting to the Court the objection which had been taken upon the ground of this unprecedented combination? The Learned Lord had intimated an intention to desert the diet pro loco et tempore against the pannel M‘Dougal. But the question still remained whether the interests of the male prisoner would not be dreadfully prejudiced in his defence, if put upon his trial for three separate acts of murder, committed at different times, and in different places. Now he contended that the present form of the indictment was adopted to effect an illegitimate object: it was calculated to lead to great injustice to the prisoner. What the Prosecutor insisted on passing to a Jury was an indictment charging three distinct murders: he averred that there were separate and unconnected acts of this crime; and he assumed that there was sufficient proof to bring them home to the prisoner. But every man, whatever the number of charges against him might be, was to be held and presumed to be innocent till the contrary was proved, and a conviction obtained against himself. There might, or there might not be sufficient proof to convict him; but he contended for the benefit of the ordinary presumption. “Give us,” said the Learned Counsel, “the benefit of this presumption, to which we are entitled, and then let us see how the case will stand.” In the indictment before their Lordships three murders were charged; murders committed at different times; murders of different persons, totally unconnected and living in different places; and the last of these was stated to have been done in conjunction with a third person who had no connection with the other two. But if the Public Prosecutor were in a situation to prove one of these murders, it would infer the death of the pannel. Then for what end or purpose of public justice were three murders crammed into one indictment? If the Prosecutor was unable to prove any one of them, there was no necessity surely for putting it into this indictment. Suppose evidence were brought to prove the first, but totally failed, and the second, but also failed, or at least left them in such doubt that a verdict of not guilty or not proven would have been returned if they had been tried separately; nobody would maintain that a false or improbable charge might not become a make-weight in the evidence to prove a separate and distinct murder. The prisoner might take his trial on a combination of such charges, but unless your Lordship interfered ex parte judicis, the result would be what he described. The prejudice arose from this talis qualis accession, not proved, but assumed; and from the prejudice thus credited the prisoner might be convicted. They could not lay the present indictment before a Jury without necessarily prejudicing that Jury; and yet the Lord Advocate came forward and alleged that he thought the whole objection frivolous and untenable, saying that it was an attempt to smother the indictment altogether; that is, he called an objection to an indictment, which did not contain a specific allegation of a specific crime, but a congeries of offences huddled together and charged in cumulo, an attempt to smother it! How smothered? If the indictment was improperly framed, if two or three charges were crammed into it instead of one, the prisoner was entitled to have it smothered. He was entitled to a fair trial, and if the libel was so constructed that this could not be afforded him, he had a right to have it smothered. Every thing relative to a specific charge their Lordships would receive, if brought forward in a competent form; but the point previously adverted to still returned—Were they to receive evidence in regard to two charges which might not be proved, and which yet might affect the minds of the Jury in regard to the third and lead to a conviction? The Learned Lord indeed said, that there was only one sort of evidence, and that the crime had been committed in the same place. But the place was not the same; in fact, the loci were as distinct as if the one crime had been committed in the Canongate of Edinburgh and the other in the remotest corner of Scotland. In popular language and popular conceptions, they might be held and represented as the same, but this would never do in matters of law. They must have the locus strictly libelled. Nor was the time the same. The first was committed at the distance of six months from the second: the first took place in April, another took place in the beginning of October, and a third occurred in the end of October. Now, might not the prisoner prove an alibi in regard to one of these crimes though not in regard to the other? But, further, the acts were different. It was in vain to say that all the murders were of the same genus, for this might be said of all the murders that ever had been or ever would be committed; and on the face of the indictment they were all different. In the major proposition no aggravation was libelled, but it was said that all these murders had been committed with the intent of disposing of the dead bodies to the Surgeons, or with some other purpose or intent to the Prosecutor unknown. Did the Learned Lord mean to say that he would fail if he did not prove this intent? But that purpose was a separate crime, as was sufficiently manifest from the late case (among others) of Bradwell at Glasgow. It could not, therefore, be maintained that he would fail by not proving the intent—by not proving a different crime from that libelled. It was perfectly plain that it was competent to prove the intent, but the not proving it could not in the least degree affect the libel. The crime consisted in the wilful murder; and unless the motive amounted to a justification, or an alleviation which reduced it to culpable homicide, the intent would be inferred from the fact, and the highest punishment of the law would follow a conviction. The evil of an indictment so framed as the present was to produce an illegitimate effect by this combination of intention or motive with the crime charged. The intent charged might have been laid as a separate offence; but had this been done we should now have been on a different objection, namely the competency of such a charge. To these principles in the abstract, no exception could be taken. Now, the Court would consider the situation in which the pannel was placed. He had been put upon his defence fifteen days after his examination; five declarations emitted by him were libelled on; and most manifestly there did exist great prejudice against him. He did not say that this would be a sufficient reason for postponing the trial, but it was a sufficient reason for the Court taking care that he suffered no injury in his defence. Another matter in which the prisoner was prejudiced, by lumping together separate charges in the same indictment, was in his challenges of the Jurymen. It was evident that the prisoner had an interest that way. He did not know who the Jurymen were to be, and of course could not mean to say that there was any danger of an improper person being balloted; but he had a clear right in the abstract—a right of which he ought not to be deprived. If he had been tried on separate indictments he would have had fifteen challenges, whereas by the combination of the charges in the same indictment he had only five. Now there might be Jurymen liable to challenge in one case and not in another, just as one witness might be perfectly unexceptionable in one case and liable to the most serious and fatal objections in another. He contended, therefore, that in every view the principle was in their favour, as well as the justice and imperious necessity of the case.

The Learned Gentleman then referred to the authorities. He began by commenting on the passage which had been quoted from Sir George Mackenzie; which, he contended, the Lord Advocate had misunderstood, as it was quite evident, that George Mackenzie used the word “summonds” as synonymous with “indictment,” since an “accumulation of crimes,” the subject treated of, could not be predicated of a summons in the common acceptation of that term. And the doctrine laid down by this author was that an “accumulation of crimes is intended, either to læse the fame of the defender, or to distract him in his defence.” Now what did the Lord Advocate say in answer to this? He referred to a passage in Mr. Baron Hume’s work where that learned person says, that “the competency has never been disputed of charging in one libel any number of criminal acts, if they are all of one nature and species, or even of one class and general description.” But it was evident that the offences of which Mr. Hume spoke were of a different description from murder; for he expressly added the qualification, “so as to adhere in this point of view, and stamp a character on the pannel as one who is an habitual and irreclaimable offender in this sort,” (vol. ii. p. 166.) And accordingly the instances which he gave were of the crimes of theft and housebreaking; crimes which were susceptible of being aggravated by habit and repute, and of which the punishment might be restricted. But murder admitted of no such aggravation, and never was restricted. Hear, however, what Mr. Hume said in reference to those cases: “The Court, whenever they find that the immediate trial of such manifold changes is likely to prove oppressive, either to the witnesses, the Jury, or themselves; and still more, if they see cause to believe that it may embarrass the pannel in his defence, or beget prejudices against him in the minds of the Jury;—in any of these cases, they have it certainly in their power to divide or parcel out the libel, and proceed in the first instance to the trial of as many of the articles as may fitly be dispatched in a single diet, &c.” (vol. ii. p. 168.) The cases which occurred in 1696 might, however, be referred to in support of a contrary doctrine; but “if they are, I answer” said the Learned Counsel—“Are your Lordships prepared to do what was done in those cases? Are they to rule your Lordships’ decision in a case without any precedent whatsoever?” But even these did not bear on the present case; and none adverse to the principle had occurred since the year 1784. Even the case of 1784 itself was not opposed to the principle. There, there was connection. The case of Surridge and Dempster was mentioned as a case of two murders, as a case where more than one murder was charged in the indictment; but these were clearly partes ejusdem negotii; they were committed in immediate sequence and in furtherance of the same “foul and atrocious design.” It was quite plain, therefore, that the cases quoted did not apply; that they had no bearing whatever on the present case, where three different and unconnected murders were charged against the same individual, and where another party was mixed up with him in one of the alleged crimes. Were they not entitled, then, to ask their Lordships, in the exercise of a sound discretion, (which it was not denied the Court possessed) “to divide and parcel out” the charges in this indictment, and to find it incompetent to go to trial upon it as it presently stood? The Learned Counsel then adverted to the state of the law of England on this subject, commenting on the passage quoted by Mr. Robertson from the work of Chitty, and concluded by observing that this was in all respects a most serious case, and deserved the utmost attention of the Court. No instance of three murders charged in one indictment had happened in his time; many instances had indeed occurred in former times; yet it had never been the practice to try the charges in cumulo. But the more anomalous and unprecedented the case, the more necessary was it to the ends of justice, and the more important to the law, that it should be proceeded in with the utmost caution.

Their Lordships then delivered their opinions on the objection which had been raised and so ably argued by the prisoner’s Counsel.

Lord Pitmilly.—The Court were peculiarly circumstanced in being called upon to give an opinion on an indictment in a case, part of which must unquestionably go to trial. He was quite clear that one of the charges must undergo an investigation; that the trial to that extent must proceed. But Counsel were by no means precluded from stating the objection they had brought forward, and which, appearing to them in the light it did, it became their duty to press upon the attention of the Court. This accordingly they had done with equal zeal and ability, in a manner which did honour to themselves, and reflected credit on the Bar of Scotland. But it was the duty of the Court to be calm and guarded; to express their opinions in a dignified and dispassionate manner; and to avoid any thing which was either calculated to unsettle the established principles of that law or to form a bad precedent for the future. He agreed that there were two different questions before the Court; the first of which was, whether Helen M‘Dougal ought to have been included in the indictment. And on that point he had no doubt of the Prosecutor’s right so to include her. He approved of what the Lord Advocate had done, and he had no hesitation in saying, that the trial should now proceed. The other question was of a very different nature; namely, whether it was competent, and also whether it was proper and fitting, that Burke should now go to trial upon an indictment, charging three murders, or should be tried on one or other of these charges. Of the competency he had no doubt whatever. His Lordship was much struck with the indictment when he first saw it, and he felt it to be his duty, as it is always the duty of the Court on such occasions, to inform his mind in regard to the principle on which it had been framed. He went to the authorities on the subject, and after a careful examination of them he had no doubt of the competency. When he looked at the cases of Beaumont and Gillespie, particularly the latter, where nine separate acts of forgery were charged, he could not have the smallest doubt as to the competency of including these several charges in the same indictment. Our practice on this point was too firmly fixed to admit of any question, that one individual may be charged with several crimes of the same nature, and committed at different times. The English cases referred to he put altogether out of view, because this was not a new point, now raised for the first time, and to be settled by a reference to principle or analogy, but a matter fixed by our own practice, and not again to be brought into dispute. He was therefore quite clear as to the competency. But where it was a question of discretion merely, and where that discretion, as in the present case, was strongly appealed to, the Court would interfere, because it was their bounden and sacred duty to prevent a prisoner from suffering prejudice in his defence. The present prisoners, by their highly respectable Counsel, declared that they would suffer prejudice if they were put upon their trial on all the charges, and it was not for the Court to say whether that might or might not be the case. Three consecutive trials might or might not be beneficial to the prisoner. In his opinion they were more advantageous to the Prosecutor. By this means he learned how to conduct his case; and if he saw a link awanting in one trial, he might endeavour, by means of additional evidence, to supply it in the next. It did appear to him, therefore, that what the pannels asked for by the mouths of their counsel, was calculated to do them more prejudice than submitting to go to trial upon the indictment as it now stood. But they had doubtless been well and judiciously advised, and were prepared to take the consequences. He held, however, that the Prosecutor had done right in including both of them in the same indictment; and that by doing so he had taken the only and most effectual means in his power not to prejudice them either in preparing for their defence or on their trial. He well remembered a case in which the danger, disadvantage, and odium attending consecutive trials were strikingly exemplified. It happened in consequence of the Aberdeen riots, and the parties were brought to trial at the instance of a private prosecutor. His Lordship was counsel for the pannels, and they were acquitted. Not satisfied with this, however, the private prosecutor reared up a new indictment upon new grounds. And he could never forget the feeling which was excited, by this attempt to bring the parties acquitted to a second trial, in the Court, the Bar, and the country at large; there was one general cry of indignation against a proceeding so shameless and oppressive; the consequence of which was, that the private prosecutor became alarmed, and the attempt was quashed. This was the natural course of things. And, in general, it was lenity, and humanity, and justice, to include all such cases in the same indictment. In the present instance, no result such as that which took place in Aberdeen was to be feared. But the Court being clearly vested with a discretion, and the pannels having strongly appealed to that discretion, it was his opinion that the cases should be tried separately.

Lord Meadowbank entirely concurred in the views of Lord Pitmilly. The nature of this case and the impression it had produced upon the public were such, that it required the most careful and anxious consideration; but he was confident that the more thoroughly their Lordships were convinced of the existing state of excitement in the public mind concerning it, the greater would be their anxiety that the prisoners suffered no prejudice on their trial or in their defence. The question here was one of very great and general importance. But if it had been entertained on the question of competency, it would have shaken the whole system of our criminal procedure. Our practice of accumulating a number of charges in the same indictment had been steady and uniform. With respect to the earlier cases referred to, particularly that in 1696, he must say that he could not for his soul comprehend upon what grounds the counsel for the prisoner had attempted to invalidate their authority. The particular case referred to occurred after the Revolution, when the Judges were as great and eminent lawyers as ever sat in that Court. But in order to show the uniformity of the practice, he needed not go farther back than the case of Murdiston and Miller, where several acts, committed by different individuals in different counties, were put into the same indictment; yet not one iota of an objection was urged against the proceeding similar to what they had heard to-day. Our own practice, in cases of forgery, which was a capital crime, left no doubt upon the matter. Several acts of this description of crime were constantly charged in the same indictment.—In cases of robbery, it was not competent to libel aggravation. The Prosecutor was not admitted to libel habit and repute. That was now settled law. It had not been so formerly; and accordingly, when he had the honour to fill the same situation, which his learned friend (the Lord Advocate) now held, he had directed an indictment to be raised to try the point,—and the law was now settled. But it was competent to accumulate several acts in the same indictment, and to have it tried by the same evidence and before the same Jury. It was competent where there was several acts of robbery charged against different individuals; and there was one case of a father and a daughter, where the daughter was charged with two acts, and the father with all the three libelled. He was therefore of opinion that the Lord Advocate had done right in proceeding as he did. But the Court had a discretion; and to that discretion the prisoners had appealed. But having stated his opinion of that discretion, he deemed it right to say, that the Court was not answerable for the consequences. The prisoners had exercised their discretion, and he warned them to consider well the step they had taken. As to the Court they were bound to sit there and try the cases one after another.

Lord Mackenzie also agreed with his learned brothers as to the competency. In so far as discretion was concerned he likewise concurred, upon the statement made by the pannel and his counsel that he would suffer prejudice. He saw that the pannel was well and ably advised; and he could not take it upon him to allege that there was any thing absurd or unreasonable in the request which had been made.

Lord Justice Clerk.—The only question here was as to the competency of the charge against Burke: for the Lord Advocate had intimated his intention not to proceed at present against the woman. After listening attentively to all that had been said, after considering the authorities, and recollecting something of the practice of this Court, he thought the indictment framed in a legal and proper manner. Burke was not accused of one crime, but of three different acts of the same crime; and, therefore, he did not come within the reach of those cases referred to by Mr. Hume. If this indictment was a bad one, the Court had been guilty of a great dereliction of its duty in sustaining many indictments framed upon precisely the same principle. He recollected a case of several acts of robbery, a capital crime, and one of the four pleas of the Crown, included in the same indictment; and how could they distinguish between such a charge and that of murder, which was another of the pleas of the Crown? In fact, it was not now in the power of the Court to depart from the practice which had been so firmly established and so steadily followed. The Court, however, had a discretion, and where it was appealed to they would exercise it. The Court had even found an indictment irrelevant where it was strongly alleged by the pannel that he would suffer prejudice were he tried upon it in its actual shape.—Upon the responsibility of the respectable Counsel, who had stated that the present prisoners would suffer prejudice if they were tried upon the indictment before them as it now stood, he was of opinion that the Court should interpose in virtue of its discretion. But they ought to do so upon principle. They ought to find the libel relevant, and also to find it competent to proceed to the trial of the charges seriatim, leaving it to the option of the Prosecutor to say which of them he might choose to begin with.

This accordingly became the judgment of the Court. The objection was repelled, but in respect of the allegation that the pannel would suffer prejudice were he tried upon the indictment as it stood, find it competent to proceed with only one of the charges at a time, leaving it to the Lord Advocate to say which of them he thinks proper to begin with.

The Lord Advocate.—In consequence of the opinion of the Court I shall proceed with the last charge, which includes both the man and the woman. The objection in regard to the latter has now been completely removed.

The Dean of Faculty.—I beg to remind the learned Lord of his former statement, that he would desert the diet against the woman.

The Lord Advocate.—The case is now completely changed. My former statement was made upon the supposition that the trial as to Burke was to proceed upon all the three charges at once.

The Prisoners on being asked by the Lord Justice Clerk, if they were guilty or not guilty of the crimes charged in the third article of the Indictment, each answered “Not guilty.” The following Jury were then chosen.

• Nichol Allan, Manager of the Hercules Insurance Company, Edinburgh.
• John Paton, Builder, do.
• James Trench, Builder, do.
• Peter M‘Gregor, Merchant, do.
• William Bonar, Banker, do.
• James Banks, Agent, Leith Walk.
• James Melliss, Merchant, Edinburgh.
• John M‘Fie, Merchant, Leith.
• Thomas Barker, Brewer, do.
• Henry Fenwick, Grocer, Dunbar.
• David Brash, Grocer, Leith.
• David Hunter, Ironmonger, Edinburgh.
• Robert Jeffrey, Engraver, do.
• William Bell, Grocer, Dunbar.
• William Robertson, Cooper, Edinburgh.

First Witness called for the prosecution, was JAMES BRAIDWOOD, of the Fire Office Establishment, who being duly sworn.

Question. Was that plan made by you? A. It was.

Q. What plan is it? A. It is a plan of some houses in the West Port, to which I was conducted by an officer.

Q. Is the plan a correct one of the under ground houses? A. It is.

MARY STEWART Examined.

Q. Do you remember a person of the name of Campbell, coming to live at your house during last harvest? A. Yes, Sir, Michael Campbell.

Q. How long is it since he left your house? A. On the Monday before the fast day.

Q. Do you remember a woman coming to your house to enquire after him? A. Yes, Sir.

Q. By what name did she call herself? A. She called herself Madgy Campbell, and also Duffie, which she said was the name of her former husband.

Q. She came from Glasgow? A. Yes, Sir.

Q. Did she state she came in search of her son? A. Yes.

GROUND PLAN OF BURKE’S HOUSE

as Produced in Court.

Published by Thomas Ireland Jun.^r Edinburgh. T. Clerk Sc.

Q. What time did she leave your house? A. I came out of the Infirmary on Thursday, and she left me on Friday, the 31st October.

Q. Did she tell you where she was going? A. She said she was going to search for her son.

Q. Do you know a person of the name of Charles M‘Lauchlan?

A. Yes, Sir; he slept with the woman’s son.

Q. Have you ever seen that woman since? A. Not till I saw her at the Police Office.

Q. What hour did she leave your house? A. I think between 7 and 8 o’clock in the morning.

Q. Do you remember when you saw the woman’s body at the Police Office? A. Yes, sir; it was on Sunday, two days after.

Q. Could you recognize the body? A. Yes, Sir.

Q. What dress did she leave your house in? A. In an old dark printed gown, much patched, short sleeves, open before, sewed with white thread in the back; black bombazet petticoat, and red striped short-gown.

Q. Would you know these things? A. Yes, Sir.

[These articles were shown to witness, and she identified the old printed gown, and short dress.]

By the Court.—Q. Do you know what her age might be?

A. Between forty and fifty.

By Counsel.—Q. What size was she? A. She was a little broad set woman.

By the Court.—Q. When she stopt in your house, was she in good health? A. Yes, my Lord.

Q. Did you ever see her drunk? A. No, my Lord.

CHARLES M‘LAUCHLAN Examined.

Q. In the month of October last, did you reside in the house of Mrs Stewart in the Pleasance? A. Yes, Sir; along with one Michael Campbell.

Q. What time did he leave that house? A. About the end of October.

Q. Do you remember a woman coming to the house in October? A. Yes, Sir.

Q. When she came did Michael Campbell live at the house? A. Yes, Sir.

Q. What name did the woman go by? A. Mrs Campbell’s name was Marjory M‘Gonegal; Duffie was her second husband’s name.

Q. Had you ever seen her before? A. Yes, Sir; at home, in the County Donegal in Ireland.

Q. Did she remain some days at Stewart’s? A. Yes, Sir.

Q. What time did she leave? A. She went away on Friday the 31st October, between the hours of nine and ten in the morning.

Q. Did you go with her? A. Yes, Sir, as far as my own shop door at the foot of St Mary’s Wynd, where she shook hands with me. I asked her where she was going, and she told me she was leaving town.

Q. Did she appear in good health and sober? A. Yes, Sir, she appeared to be of sober habits.

Q. Did she come in search of her son? A. Yes, Sir.

Q. Do you know if she had any money? A. No.

Q. Did she complain of having none? A. I never heard her.

Q. Did she pay any thing for her lodgings at Stewart’s? A. Her son paid for them.

Q. Did she breakfast at Stewart’s that morning? A. No, Sir.

Q. Did you ever see her again in life? A. No, Sir.

Q. When did you see the body? A. I saw it at the Police office, on Sunday the 2d November.

Q. You knew it to be that of the woman Campbell?

A. Yes, Sir.

Q. Did she ever call herself Docherty? A. No, Sir.

WILLIAM NOBLE Examined.

Q. You are a shop-boy at Mr. Rymer’s, at Portsburgh?

A. Yes, Sir.

Q. Do you know the prisoner Burke by sight? A. Yes, Sir.

Q. Do you know a man of the name of Hare? A. Yes.

Q. What do you sell? A. Groceries.

Q. Do you recollect a body found in the West Port? A. I recollect a woman came to the door, and asked charity, on Friday 31st October. Q. Was Burke in the shop at the time? A. He was.

Q. Tell us what passed between Burke and the woman who asked charity? A. He asked her name, and she said it was Docherty.

Q. What did he say to that? A. He said she was a relation of his mother’s.

Q. Did Burke say what his mother’s name was? A. No.

Q. Did Burke and the woman seem acquainted? A. Don’t recollect Q. What happened after that? A. Burke took her away with him, and said, he would give her her breakfast. This was on the Friday morning.

Q. When did you see Burke after? A. He came back on Saturday, and bought a box.

Q. What sort of a box was it? A. A tea-box.

He was shewn a tea-chest, and asked, if that was it? A. Could not say. It was like it.

Q. Have your tea boxes any particular mark? A. No.

Q. Did Burke pay for the box? A. No, it is not paid for yet.

Q. Whom did he send for it? A. Mrs Hare came for it about half an hour after Burke left our shop, and got it away.

ANNE BLACK or CONNAWAY Examined.

Q. You live in Wester Portsburgh? A. Yes.

Q. What does your house consist of? A. One room.

Q. You go down a stair to it? A. Yes, Sir.

Q. And going down the stair you come to a passage? A. Yes.

Q. Is there another door in the same side of the passage, a little farther in? A. Yes.

Q. Does that door lead into a room or a passage first? A. First into a passage.

Q. And at the end of that passage there is a room? A. Yes, Sir.

Q. Who lived in that room in October last? A. It was Burke; he occupied it in the last week of October.

Q. Look at the female prisoner. Did she live with Burke in the last week of October? A. Yes, Sir.

On the other side of the passage there is another house in which lived Mrs Law.

Q. Did you ever see a person of the name of Hare coming to Burke? A. Yes, Sir.

Q. Were there any lodgers lived with the Burkes in October? A. Yes, a man of the name of Gray.

Q. Did you, on the 31st of October, see Burke? A. Yes.

Q. What time of the day? A. I made no remarks.

Q. Did you, see any one with him? A. About mid-day I saw him with a woman; I was sitting by the fire, and they both passed my door.

Q. Was it the prisoner? A. No.

Q. Were they going in? A. Yes.

Q. Was she a stranger? A. Yes.

Q. Was there any one in the house with you at the time?

A. Yes, Mrs Law.

Q. Did you in the course of the day go into Burke’s? A. Yes.

Q. Did you go in alone? A. Yes.

Q. Did you find any one there? A. Yes, the said woman was sitting by the fire.

Q. Was she doing any thing? A. Supping porridge and milk.

Q. How was she dressed? A. She had no gown on, she said her things were washing. I saw nothing but her shift, and something tied on her head.

Q. Did you see any stranger there? A. No.

Q. Was Burke’s wife there? A. Yes.

Q. Was Burke? A. I dont know. You have got a stranger, I said. Yes, said M‘Dougal, we have got a friend of my husband’s here, a Highland woman.

Q. Was the strange woman sober? A. I dont know.

Q. Did you hear her speak at that time? A. No.—I then went back in the dark.

Q. What happened after you went into your own house?

A. Burke’s wife came and asked me to take care of her door until she returned, as she was going out; my husband was sitting by the fire, and after she went away, he said he thought he saw some person going into Burke’s house. We took a light and went to see, but saw nobody, save the stranger.

Q. What did you do after this? A. I said, I thought some one had come in. She rose and followed after me, and appeared the worse of drink at the time. She said she was going to St Mary’s Wynd to see a boy, to hear about her son, and she wanted the name of the land of houses, that she might return, as she said she had no money to pay for her bed. I told her she need not go for she would not find her way back again. She said Burke, whom she called Docherty, had promised her supper and a bed that night. I told her if she went out the Policemen would take her as she was bad in drink.

Q. Did she go out? A. No, she did not, she came into our house and spoke a good while with my husband about Ireland and the army, in which he had been.

Q. Did you ask how Burke and she had become acquainted?

A. No, but she said she intended to stop for a fortnight. I told her, her landlord’s name was Burke and not Docherty, but she insisted it was Docherty, for that was the name he gave himself to her.

Q. What name did she call herself to you? A. She called herself Docherty in her own name, and Campbell as her husband’s.

Q. Did any other persons come to your house shortly after?

A. Yes, Hare and his wife; Hare’s wife had a bottle with her, and he insisted they should have a dram. The prisoner M‘Dougal came in also and had a share.

Q. Did you drink any? A. Yes, and my husband treated them.

Q. Did the stranger get any drink? A. Yes.

Q. Were they merry in your house? A. Yes, Hare was dancing on the floor, so were Mrs Campbell and Mrs Burke; Campbell was bare-footed, and got a scratch on the foot with the nails in Hare’s shoes, of which she complained, but she was otherwise very well.

Q. Did they leave your house together? A. No, Mrs Campbell said she would not go till Docherty, meaning Burke, came in. I insisted on her going, but she bade me not be cruel to a stranger. Shortly after, I told her there was Docherty now, and she rose and followed him.

Q. At what hour was this? A. I think it was between 10 and 11 at night. She went towards Burke’s house.

Q. Did you sleep that night? A. No, what disturbed me, was Burke and Hare quarrelling. They appeared to be fighting.

Q. At what hour did you get up in the morning? A. I got up between three and four, but went to bed again, and got up altogether about eight o’clock.

Q. Whom did you see first? A. I heard Hare’s wife in the passage calling to Mrs Law, who was then in our house, but she did not answer.

Q. Did any other person come to your door? A. Yes, a girl afterwards came inquiring for John, who witness understood was Burke; it was between eight and nine.

Q. Did you direct her to Burke? A. Yes.

Q. Did you see Mrs M‘Dougal? A. Yes, shortly after she came and told me William (Burke) was wanting me. I went to Burke’s and found Mrs Law, M‘Dougal, and a lad named Broggan. Burke had a bottle of spirits and gave me a glass, he then threw the spirits up towards the roof of the house, and upon the bed at his back. I asked him why he wasted it, and he laughed and said, he wanted it finished to get another bottle. I then asked Mrs M‘Dougal what was become of the old woman. She said she kicked her out of the house, as she saw Burke and her too friendly.

Q. Did Burke say anything at this time? A. No.

Q. Did you ask him what the noise was about? A. Yes, he said it was a fit of drink, but they were all well then.

Q. Did you do anything more? A. No, Sir.

Q. Did you see any straw lying near the bed? A. Yes, there was a bundle of straw near the bed, which had lain there almost all the summer.

Q. When you got up at the first time in the morning, between three and four, was all quiet in Burke’s house? A. Yes, while I made my husband’s breakfast at that hour, I heard no noise.

Q. Did any other thing particular happen in Burke’s that morning? A. Yes, his wife sung a song.

Q. At what hour did you return to your own house? A. It would be the forenoon.

Q. Did you go again to Burke’s on Saturday night? A. Yes, at eight o’clock, Gray’s wife told me of something in Burke’s house and I went with her to see.

Q. What did you see? A. I saw nothing, I was so frightened that I came out.

Q. Did you see the prisoner, M‘Dougal? A. Before this M‘Dougal came to me, and said the woman Gray had stolen some things out of her house, and asked mo to watch her door, as it did not lock. This was about six o’clock.

Q. What happened after? A. When I was making my husband’s supper, Hare came to my door. He was going to Burke’s, but I told him there was nobody there; and he came into my house, but soon went back into the passage. I afterwards went to Burke’s door, and found it fastened.

Q. After you went to Burke’s door, did you see any one? A. Yes, Hare came out of Burke’s after that.

Q. Did you see M‘Dougal? A. Yes, and Burke a good bit on in the night.

Q. Did any thing else happen? A. Yes, some one said to Burke and M‘Dougal, that they were very much disturbed the night they murdered the woman. M‘Dougal laughed, and Burke said, he would defy all Scotland, as he never did any wrong. The Police came just after that and apprehended Burke.

Cross-Examined by Sir J. W. Moncrieff, Dean of Faculty.

Q. Did Burke, before he was apprehended, say any thing of the person, who accused him of the murder?

A. Yes, he said he would go and seek the man, and he met him in the passage along with the policeman, and they took him into his own house.

By a Juryman.

Q. What was the cause of your fear, when you went into Burke’s house.

A. From having heard of the murder from Mrs Gray.

JANET LAWRIE or (Law) Examined.

Q. You lived in the same passage with the prisoners in October last? A. Yes.

Q. Do you remember being at Connaway’s house on the 31st October, about two in the afternoon? A. Yes.

Q. Do you recollect seeing the prisoner Burke in the passage? A. Yes.

Q. Was he alone? A. A little woman was following him, they went into Burke’s house.

Q. Did you see Hare that evening? A. Yes.

Q. Did he go into Burke’s house? A. Yes.

Q. Did you go in there? A. Yes.

Q. Whom did you see? A. I saw Hare and his wife and Burke, and the little woman.

Q. At that time were they merry? A. Yes.

Q. You were not long there? A. About twenty minutes.

Q. Did you get any spirits? A. Yes.

Q. At what hour did you go to bed? A. About half-past nine; sometime after I heard a noise of dancing and merriment.

Q. Did you hear any singing? A. No, Sir.

Q. Fighting and scuffling? A. There was a great noise.

Q. Did you distinguish any particular voice? A. No.

Q. Did the noise last long? A. Yes. The next morning Mrs Burke came into my house to borrow a pair of bellows, and asked me if I heard Burke and Hare fighting in the night time.

Q. Any more about the fighting? A. I asked her then what she had done with the little woman? She said, she kicked her out of the door, because she had been using too much freedom with William, (meaning Burke.)

Q. Did she go after that? A. Yes, that was about eight. She afterwards returned about nine to borrow a dram glass, and asked me to come into her house.

Q. Did you go? A. Yes, and saw Hare there and Burke and M‘Dougal; and a man of the name of Broggan.

Q. Did Gray and his wife come in before you left? A. Yes, and Mrs Connaway.

Q. Did you remark any thing particular? A. Yes, Burke took a bottle of spirits, and sprinkled it about the bed and room; he said, because none of them would drink it.

Q. Was there a good deal of straw lying at the foot of the bed?

A. Yes. This took place on the Saturday morning, and Burke was apprehended that night.

Q. Did you see Mrs Connaway at Burke’s house? A. Yes.

Q. Did you go to the Police Office on Sunday? A. Yes, and was shewn the body of the little woman I saw at Burke’s on Friday night.

Cross-Examined.

Q. Was the straw that was near the bed there before? A. Yes.

Q. Was it in use? A. Yes, it had been used for some time as a bed for Gray and his wife.

HUGH ALSTON Examined.

Q. Do you live in the same land with Burke? A. Yes, I live in the flat above the shop, and he lives in the flat below the shop.

Q. Did you hear any noise on the night of the 31st October when going home? A. Yes, I heard some going along the passage between eleven and twelve that night.

Q. Tell us what you heard? A. I heard two men quarrelling; but what particularly attracted my attention was, the cry of murder from a woman. I went down a part of the stair towards Burke’s house.

Q. Do you know Connaway’s door? A. Yes.

Q. Did you go so far as that? A. Yes.

Q. Now tell us distinctly as far as you can what you heard? A. I heard two men quarrelling, and a woman crying murder, but not in such a way as would lead me to think she was in danger. She continued to do so for a few minutes; then something gave three cries as if it was strangled.

Q. Did it resemble the sound of a person or animal that was strangled? A. Yes.

Q. What did you hear after this? A. I heard no noise on the floor, only speaking loud. After these remarkable sounds, I heard the female voice who cried murder, strike her hand as if against the door and call for the police, they were murdering her. I went immediately for the police, and could not get one. I returned and went down the stair a little way.

Q. Did you hear any thing after? A. Nothing but the voices of the two men which appeared at a great distance.

Q. While you were listening, did you hear feet moving on the floor? A. Yes.

Q. How far might you be from Burke’s door when you heard those remarkable sounds? A. About three yards, or ten or fifteen feet.

Q. Was the outer door shut? A. I think it was, and that on the same door the woman struck her hands.

Q. When did you hear a body had been found? A. On Saturday evening, and that fixed my recollection of what I heard before.

Cross-Examined.

Q. You said you went in search of the Police? A. Yes.

Q. How far did you go? A. Only to the mouth of the passage. When I returned I did not consider it necessary to interfere farther.

Q. Was the voice you heard of murder the same you heard when you first went down?

A. Yes, it was like the voice that said, for God’s sake go for the police, there is murder here. I since sent a person to strike on the inner door to see if it sounded the same as I heard before, and I think it did not.

Re-examined.

Q. Was the last cry for the Police? A. Yes, and that there was murder there.

By the Jury.

Q. Have you any doubts the cry of murder you heard in the passage came from Burke’s house? A. I have no doubt of it.

ELIZABETH PATERSON, Examined.

Q. Look at the prisoner, do you know him by sight? A. Yes, I do.

Q. Did you see him on Friday, 31st October? A. Yes, he came to my mother’s house on Friday night to ask for my brother David, and I said he was out. He then went away.

Q. Did you go on the next morning to Burke’s house? A. Yes, my brother sent me for Burke, and I went and inquired for his house at Mrs Law’s.

DAVID PATERSON, Examined.

Q. Where do you live? A. At No. 26, West Port.

Q. What is your occupation? A. I am keeper of the Museum of Doctor Knox.

Q. Do you know the prisoner? A. Yes.

Q. At what hour did you go home on the 31st October?

A. About twelve.

Q. Did you find any person at your door? A. Yes, the prisoner; he told me he wanted me to go to his house.

Q. Did you go? A. Yes.

Q. Did you find people there? A. I found Burke and another man and two women.

Q. After you went in, what passed? A. The prisoner told me he had procured something for the Doctor, pointing to the head of the bed, where there was some straw; he said it in an under voice. I was near him at the time.

Q. Was any thing shewn to you at that time? A. Nothing.

Q. What did you understand he meant? A. I understood him to mean a dead body, a subject.

Q. What were his exact words? A. His words were—“There is something for the doctor (pointing to the straw) which will be ready to-morrow morning.”

Q. Was there sufficient straw to cover the body? A. There was.

Q. Was that woman, the prisoner at the bar there, (pointing to Mrs M‘Dougal?) A. She was.

Q. Would you know the other two persons who were present?

A. Yes.

Hare and his wife being brought in.

Q. Do you know these people? A. I know them by the name of Hare, they are the other persons that were at Burke’s house that night.

Q. Had you any further conversation with Burke, while you remained there? A. No, but I sent my sister for him in the morning, and he came alone about nine o’clock.

Q. What did you say to him when he called on you? A. I told him if he had any thing for Dr Knox, to go to himself, and agree with him personally. I afterwards saw the prisoner Burke and Hare in Doctor Knox’s Rooms in Surgeon’s Square, along with Doctor Jones, one of Doctor Knox’s assistants. This was between twelve and two.

Q. Did any thing pass there? A. Either Burke or Hare told Dr Knox, they had a dead body for him, which they would deliver there that night; and I had orders from Doctor Knox to be in the way to receive it, or any parcel that might come. I was there about seven, when Burke and Hare, and a porter named M‘Culloch, brought a tea-chest. They carried it in, and it was put in a cellar, (Mr. Jones was present,) and when it was locked up, I went to Newington to Dr Knox, and told him the parcel was delivered. Hare, Burke, and the porter had either gone before or followed. I saw them when I came out of Dr Knox’s house. He gave me Five Pounds to give the men, with orders to divide it between them, and in order to do so, I took them to a public-house, and got change, and gave each Two Pounds Ten Shillings. They left something for the porter. It was understood they were to return on Monday, by which time, if Dr Knox approved of the subject, they would get the remainder of the price, which I believe, was Eight Pounds.

Q. Did you hear the prisoner say any thing about women? A. Yes.

Q. Did you see any women loitering about? A. No.

Q. What happened after? A. The next morning, Sunday, Lieutenant Paterson and Sergeant Fisher of the Police came to me, and I went to Dr Knox’s cellar along with them, and gave them the package which was left there the night before.

Q. Was it still roped? A. Yes, as it had been received.

Q. Did you assist at the opening of it? A. Yes, and found it to contain the body of an elderly female, apparently fresh and never interred. The body was doubled up in the box, all the extremities doubled on the chest or thorax for want of room.

Q. Describe the state when it came out of the box? A. I examined all the body externally, stretched on a table. The face had a very livid colour, there was blood flowing from the mouth. The appearance indicated evident marks of strangulation, or suffocation from pressure. I found no external marks on the body that might have caused death.

By the Court.—Q. Did the eyes project? A. No.

Q. Was the tongue hanging out? A. No.

Q. Was there any marks about the throat? A. No.

Q. Was there any injury about the lips and nose? A. Yes, they were dark coloured and marked with blood.

JOHN BROGGAN Examined.