CHAPTER XX.

_Public Anticipation of the Trial--Appearance of Burke and M'Dougal in the Dock--Opening of the Court--The Debate on the Relevancy of the Indictment._

As the day fixed for the trial drew near, the public excitement became more and more intense. The feeling against the culprits was very strong, and while the statement that Hare and his wife were to be accepted as informers was received with a notion of displeasure, it was thought that the revelations they would make would fully compensate for the loss to justice by their escape from punishment. This displeasure was not as yet very definite, for the people were unaware of the real facts of the case, and had only a very hazy and general idea of what was likely to be brought out in court. The public feeling, however, ran so high that the authorities deemed it necessary to take every precaution to prevent a disturbance, and on the evening before the trial the High Constables of Edinburgh were ordered to muster; the police were reinforced by upwards of three hundred men; and the infantry in the Castle and the cavalry at Piershill were held in readiness for any emergency. The trial and its possible outcome was all the talk, and the revelations about to be made were eagerly anticipated.

Early on the morning of Wednesday the 24th December, Burke and M'Dougal were conveyed from the Calton Hill Jail, where they had been confined, and were placed in the cells beneath the High Court of Justiciary in Parliament Square until the time for the hearing of the case should come. The inhabitants of the city were also early afoot, and crowded to the square anxious to gain admittance to the court-room. "No trial," said the _Edinburgh Evening Courant_ of the following day, "that has taken place for a number of years past has excited such an unusual and intense interest; all the doors and passages to the court were accordingly besieged at an early hour, even before daylight; and it was with the utmost difficulty, and by the utmost exertions of a large body of police, that admission could be procured for those who were connected with the proceedings. At nine o'clock the court-room was completely filled by members of the faculty and by the jury. Lord Macdonald and another noble lord were seated on the bench." At twenty minutes to ten o'clock the prisoners were placed in the dock, and this is the description of them given by the _Courant_:--"Burke is of a short and rather stout figure, and was dressed in a shabby blue surtout. There is nothing in his physiognomy, except perhaps the dark lowering of the brow, to indicate any peculiar harshness or cruelty of disposition. His features appeared to be firm and determined; yet in his haggard and wandering eye, there was at times a deep expression of trouble, as he unconsciously surveyed the preparations which were going forward. The female prisoner appeared to be more disturbed; every now and then her breast heaved with a deep-drawn sigh, and her looks were desponding. She was dressed in a dark gown, checked apron, cotton shawl, and a much worn brown silk bonnet." The audience eagerly scanned the features of the prisoners, and watched their every movement, during the half-hour that elapsed between their being placed in the dock and the judges ascending the bench. At ten minutes past ten o'clock their lordships took their seats. These were--the Right Hon. David Boyle, Lord Justice-Clerk; and Lords Pitmelly, Meadowbank, and MacKenzie. The Crown was represented by Sir William Rae, Bart., Lord Advocate; and Messrs. Archibald Alison, Robert Dundas, and Alexander Wood, Advocates-depute; with Mr. James Tytler, W.S., agent; while the counsel for Burke were the Dean of Faculty, and Messrs. Patrick Robertson, Duncan M'Neill, and David Milne; and for M'Dougal, Messrs. Henry Cockburn, Mark Napier, Hugh Bruce, and George Paton, with Mr. James Beveridge, W.S., one of the agents for the poor. There were thus the best men of the Scottish bar engaged in the trial. The defence, of course, had been undertaken gratuitously by these eminent counsel, but the sequel showed that it suffered nothing at their hands on that account.

The court was fenced in the usual form, and the Lord Justice-Clerk, as the presiding judge, called upon the prisoners to pay attention to the indictment to be read against them. Mr. Robertson, however, interposed by stating that there was an objection to the relevancy of the libel, and he submitted it was proper to make such an objection at this stage of the proceedings. The Lord Justice-Clerk did not see that this was the proper time, but Mr. Cockburn urged that the reading of the document would prejudice the prisoners in respect of certain particulars which he was certain the court would ultimately find were no legal part of the libel. On Lord Meadowbank hinting that an objection at that stage was interfering with the discretion of the court, Mr. Robertson intimated he would not press the matter further, and the indictment was accordingly read.

When this was done, the following special defences were submitted to the court:--For Burke--"The pannel pleads 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 with which he is accused. Such an accumulation of offences and pannels is contrary to the general and better practice of the court; it is inconsistent with the 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." For M'Dougal the defence was--"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. Robertson then went into a long and learned argument in support of these defences. He submitted that both prisoners were prejudiced by being charged together in the same indictment, for they were both put off their guard as to the evidence and productions to be brought against them, and he further pointed out that in respect of the choice of a jury the accused were deprived of advantages given them by the law. If the charges had been separated they would have been able to make a more complete defence, and they would have had twenty challenges at the calling of the jury; but as it was, by the accumulation of pannels and offences, their defence was hampered and their number of challenges limited. He quoted in his favour both Scotch and English authorities--apologising, however, for bringing forward the latter--and in concluding said--"When your lordships look, then, at this case, in all the aspects I have set before you--when you see that there are accumulated and combined charges against different prisoners--when you see the atrocious nature of these charges, the number of the witnesses, the declarations, and the number of the articles libelled--and when you see the humane and salutary principles of our law, and the practice of this court,--your lordships will not be inclined to form a precedent, which, in the _first_ place, would be injurious to the law of the country; and, in the _next_ place, would be injurious to the unhappy persons now brought to this bar."

This speech caused a feeling of admiration in the court, for the advocate had put forward his arguments in a most able manner; but there was also something akin to dismay in the minds of many present lest the culprits should escape because of any flaw in the indictment.

The Lord Advocate had a difficult task before him, but he confidently rose up to reply to the arguments adduced from the other side of the bar, and attacked them in a most spirited manner. He thought he could completely defend his method of bringing the prisoners to trial, and show that it was not only sanctioned by the law of the country, but also by numerous precedents, even by those quoted by his learned friend. But his object in placing the female prisoner in this indictment was that she might derive benefit rather than prejudice. Had he tried the man first, and afterwards the woman, adducing against her the same, or nearly the same, evidence brought against Burke, she would have had good reason to complain of prejudice. However, since the objection had been raised he would not then proceed against her, but would do so ten days hence. "But if she should suffer prejudice," said he, "from the evidence in Burke's trial going abroad, let it be remembered it is not my fault. She and her counsel must look to that--it is their proceeding, not mine." Turning to the objections in Burke's case, he said:--"As to the second objection, whether or not I am entitled now to go to proof on the three charges here exhibited, or shall proceed _seriatim_, I am aware that this is matter of discretion with the court. In so far, however, as depends upon me, I declare that I will not consent to this being dealt with in the last of these modes. No motive will induce me, for one moment, to listen to any attempt to smother this case; to tie me down to try one single charge, instead of all the three. If I had confined myself to one of those charges; if I had served the prisoner with three indictments, and put the pannel to the hardship of appearing three times at that bar, I would have done one of the severest acts that the annals of this court can show. I am told that the mind of the public is excited; if so, are they not entitled to know, from the first to the last of this case; and is it not my duty to go through the whole of these charges? I would be condemned by the country if I did not, and what to me is worse, I should deserve it." His lordship then went over the authorities cited by Mr. Robertson, and contended that they all bore against the arguments brought forward by the counsel for the defence.

Replying for the defence, the Dean of Faculty very learnedly examined the authorities quoted, with the object of showing that the action of the public prosecutor, in framing the libel as he had done, was illegal, and without precedent.

The pleadings finished, Lord Pitmilly delivered the leading judgment. He reviewed the arguments urged from both sides of the bar, and signified his approval of the course the Lord Advocate intimated he would take with M'Dougal. As for Burke, he had stated through his counsel that he would suffer prejudice by going to trial on an indictment which charged him with three acts of murder, unconnected with each other, and his lordship therefore thought the prisoner should be tried for each of the acts separately. Lords Meadowbank and Mackenzie, and the Lord Justice Clerk, concurred in the opinion given expression to by Lord Pitmilly, and supported it by elaborate reasonings.

The Lord Advocate, thus tied down, intimated that he would proceed with the third charge libelled--the murder of Docherty--and that he would also proceed against M'Dougal as well as Burke, for she could suffer no prejudice in being brought to trial for this single act, on which she was charged as act and part guilty along with Burke. This decision rather surprised the Dean of Faculty, who thought the diet against the woman had been deserted _pro loco et tempore_, but the prosecutor claimed to proceed as he had indicated. Their lordships then pronounced an interlocutor of relevancy:--"Find the indictment relevant to infer the pains of law; but are of opinion, that in the circumstances of this case, and in consequence of the motion of the pannel's counsel, the charges ought to be separately proceeded in: and that the Lord Advocate is entitled to select which charge shall be first brought to trial, and His Majesty's Advocate having thereupon stated that he means to proceed at present with the third charge in the indictment against both pannels--therefore remit the pannels with that charge, as found relevant, to the knowledge of an assize, and allow the pannels, and each of them, a proof in exculpation and alleviation," &c.

The prisoners were then asked to plead to the indictment as amended, and they both offered the plea of "Not Guilty." A jury was empanelled--fifteen men, as required by the law of Scotland. The preliminary objections were thus got over, and the trial could be proceeded with; but the result of the discussion was that the public were deprived of the satisfaction of knowing in an authoritative manner the mystery connected with the deaths of Mary Paterson and Daft Jamie.