The trial of Wm. Burke & Helen M'Dougal, on Wednesday, December 24, 1828 : in the High Court of Justiciary, before the Right Honourable Lord Chief Justice Clerk, and Lords Pitmilly, Meadowbank, and Mackenzie, on an indictment for the wilful murder of Mary Patterson, James Wilson and Madgy M'Gonegal ... in the Canongate and West Port, Edinburgh, for the purpose of sale to the medical faculty.

Date:
[1829?]
Catalogue details

Licence: Public Domain Mark

Credit: The trial of Wm. Burke & Helen M'Dougal, on Wednesday, December 24, 1828 : in the High Court of Justiciary, before the Right Honourable Lord Chief Justice Clerk, and Lords Pitmilly, Meadowbank, and Mackenzie, on an indictment for the wilful murder of Mary Patterson, James Wilson and Madgy M'Gonegal ... in the Canongate and West Port, Edinburgh, for the purpose of sale to the medical faculty. Source: Wellcome Collection.

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    We have only one additional remark to make. It is a fact honour- able to the Scottish bar, that on this occasion, the most eminent of its members, viewing the case as one in which the utmost circumspection was requisite, in consequence of the agitation of the public mind, came forward,, and gratuitously exerted their splendid talents, to obvi- ate, as far as might be, the hazard of human feelings militating unduly against the accused. Never did these great men make a proud- er display of the professional abilities that have rendered them so illus- trious ; and if they failed to satisfy the jury, that, in Burke's case at least, there was the smallest palliative, even that mighty criminal him- self has reason to say, Never was a convicted murderer more ably defended. ENGLISH AND SCOTTISH CRIMINAL LAWS. The criminal proceedings in Scotland are much more favourable to the prisoner, or pannel as he is there termed, than those, of England. When the prisoner is brought up to plead to his indictment, he may, if he choose, object to its relevancy, alleging that it states matters which do not apply to his case, or any circumstances, which, he considers, may throw the indictment out of court. And in th is firs t important step, he is assisted by Counsel, who argee the different points which are sup- posed to invalidate the bill. After a reply from the opposite side, the five judges consider the arguments adduced, and pronounce, mostly seriatim, their opinions a* to the validity of the indictment. If the prisoner's objections are found to be fatalt of course the indictment is quashed, and, tlierefore, there is nothing to which he can be called upon to plead. By our laws, the prisoner must put in his plea to the indictment y however absurdly and ridicoushj it may be laid, and however irrelevant the facts alleged in it may be ; and this plea, whether of guilt or in- nocence, must be considered as a virtual acknowledgment that the indictment is relevant: at all events the trial proceeds to a verdictr unless in the course of the examination something turns out by which the indictment is nullified. If it go on to a verdict, and that of guily, the last chance for the prisoner is a motion in arrest of judgment, wl\ich is either immediately determined by the presiding judge, or left to the consideration of the twelve judges, ivhose decision is followed up by judgment and execution of the sentence. Thus the prisoner under- goes the fatigue and anxiety of a trial, and afterwards a suspense of several months, before he learns the result. It is true that he may put in what is called a demurrer ; that is, he may plead guilty to the charge generally, and that his conduct has not been contrary to the law particularly applicable to his case.* If the objections are overruled, sentence is passed upon the prisoner in virtue of his plea. These are the only chances which are allowed to the English pri- soners. The latter, indeed,, can scarcely be deemed such, particularly to a man who is conscious of his innocence; for after his plea, the question no longer rests upon the allegations of the indictment, or the fuels of the case. If the counsel for the Scotch prisoner fail in shoving the irrele- vancy of the indictment, he must then, and not till then, plead to it„ * See the proceedings in limine in the case of Algernon Sydney, Speech of Judge Jejj'eri s; Stat*; Trials.