let a cold winter draught through the stuffy crowded room. Throughout the trial many of the lawyers wrapped their gowns round their heads, giving them the appearance of an assembly of monks.
Lord Boyle was supported on the bench by Lords Pitmilly, Meadowbank and Mackenzie. The prosecution team was led by the Lord Advocate, Sir William Rae. The leading defence counsel were Sir James Moncrieff, the Dean of Faculty, for Burke, and Mr Henry Cockburn for McDougal. It was claimed as a tribute to Scottish justice that such distinguished counsel gratuitously represented the destitute prisoners, but there were hints in the press that fees were paid from some anonymous source. Even so, ‘Had they been tried in England, not all the wealth of the Indies would at that date have rendered it possible for counsel to do more than cross-examine witnesses on their behalf.’ 1
A list of fifty-five witnesses had been drawn up by the prosecution, chief of whom would be William Hare. The others included Dr Knox, his students Fergusson, Jones and Miller and his former assistant Paterson, as well as Janet Brown and Burke’s brother Constantine, whose sons Richard and William were also listed. Items produced in evidence would include clothing belonging to all three victims as well as a linen sheet and pillow-case, a plan of certain houses in Wester Portsburgh, and a brass snuff-box and spoon.
The lengthy indictments accused Burke of murdering Mary Paterson or Mitchell, James Wilson, and ‘Madgy or Margery, or Mary McGonegal or Duffie, or Campbell, or Docherty’. Helen McDougal was accused only of the last crime. Counsel for the defendants (or ‘pannels’ in Scottish law) immediately objected to the trial proceeding on this accumulation of separate charges, which would be prejudicial to both prisoners.
Mr Patrick Robertson, for Burke, stated that, so far as he could discover from the records of the court, ‘this is the first case in which it was ever attempted, on the part of the prosecutor, to charge, in one libel, three murders, committed at different times’. He argued that it was inconsistent with the principles of Scottish law to force a pannel to defend himself against three unconnected charges of murder at once, and that the minds of the jury members would inevitably be prejudiced against Burke in one case by evidence produced in connection with the others, and against McDougal by evidence in connection with alleged crimes she was not charged with. He pointed out that in English courts it was not customary to combine two felonies in the same indictment. Although the prisoners were to be tried under the law of Scotland, it surely could not be wrong to ascertain ‘how those persons would be dealt with in the other end of the island’. 2 Mr Robertson thought their Lordships would ‘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’. 3
The Lord Advocate replied that his intention in including McDougal in the same indictment as Burke was, so far from doing anything to prejudice a prisoner on trial, exactly the opposite. It would be in her interests to be so placed, rather than have all the evidence in the case against Burke repeated in the case against her afterwards. But he did not insist on it. If she and her counsel wanted a separate trial, so be it.
As to the charges against Burke, Sir William believed strongly that the alleged murders were so close in time, in place and in motive, that they should be tried together. ‘I am told by my learned friend, that this is the first case that has occurred where three murders have appeared in one libel, and it is with pain that I acknowledge the truth of the statement. It is with sorrow I admit that there is not only no precedent of such a thing in the annals of this Court, but in the annals of any civilized country whatever.’ 4
Lord Boyle was supported on the bench by Lords Pitmilly, Meadowbank and Mackenzie. The prosecution team was led by the Lord Advocate, Sir William Rae. The leading defence counsel were Sir James Moncrieff, the Dean of Faculty, for Burke, and Mr Henry Cockburn for McDougal. It was claimed as a tribute to Scottish justice that such distinguished counsel gratuitously represented the destitute prisoners, but there were hints in the press that fees were paid from some anonymous source. Even so, ‘Had they been tried in England, not all the wealth of the Indies would at that date have rendered it possible for counsel to do more than cross-examine witnesses on their behalf.’ 1
A list of fifty-five witnesses had been drawn up by the prosecution, chief of whom would be William Hare. The others included Dr Knox, his students Fergusson, Jones and Miller and his former assistant Paterson, as well as Janet Brown and Burke’s brother Constantine, whose sons Richard and William were also listed. Items produced in evidence would include clothing belonging to all three victims as well as a linen sheet and pillow-case, a plan of certain houses in Wester Portsburgh, and a brass snuff-box and spoon.
The lengthy indictments accused Burke of murdering Mary Paterson or Mitchell, James Wilson, and ‘Madgy or Margery, or Mary McGonegal or Duffie, or Campbell, or Docherty’. Helen McDougal was accused only of the last crime. Counsel for the defendants (or ‘pannels’ in Scottish law) immediately objected to the trial proceeding on this accumulation of separate charges, which would be prejudicial to both prisoners.
Mr Patrick Robertson, for Burke, stated that, so far as he could discover from the records of the court, ‘this is the first case in which it was ever attempted, on the part of the prosecutor, to charge, in one libel, three murders, committed at different times’. He argued that it was inconsistent with the principles of Scottish law to force a pannel to defend himself against three unconnected charges of murder at once, and that the minds of the jury members would inevitably be prejudiced against Burke in one case by evidence produced in connection with the others, and against McDougal by evidence in connection with alleged crimes she was not charged with. He pointed out that in English courts it was not customary to combine two felonies in the same indictment. Although the prisoners were to be tried under the law of Scotland, it surely could not be wrong to ascertain ‘how those persons would be dealt with in the other end of the island’. 2 Mr Robertson thought their Lordships would ‘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’. 3
The Lord Advocate replied that his intention in including McDougal in the same indictment as Burke was, so far from doing anything to prejudice a prisoner on trial, exactly the opposite. It would be in her interests to be so placed, rather than have all the evidence in the case against Burke repeated in the case against her afterwards. But he did not insist on it. If she and her counsel wanted a separate trial, so be it.
As to the charges against Burke, Sir William believed strongly that the alleged murders were so close in time, in place and in motive, that they should be tried together. ‘I am told by my learned friend, that this is the first case that has occurred where three murders have appeared in one libel, and it is with pain that I acknowledge the truth of the statement. It is with sorrow I admit that there is not only no precedent of such a thing in the annals of this Court, but in the annals of any civilized country whatever.’ 4
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