Authors: Brian Bailey
Hare, meanwhile, was taken into close confinement again and an examination of witnesses began. Burke, in the condemned cell at this time, might have hoped for a stay of execution if he was to provide evidence against Hare. On 20 January, Hare’s legal representatives applied for the warrant to be withdrawn and for their client to be released. The Sheriff refused this on the grounds that there was nothing in a guarantee by the public prosecutor to prevent private proceedings. Hare’s lawyers then took the case to the High Court, presenting a lengthy Bill of Advocation, Suspension and Liberation, in which they argued for Hare’s immediate release. He had made a full disclosure of the murders, including James Wilson’s, under assurance from the Lord Advocate of his personal protection, and he had given evidence at the trial under assurance from the judges that he would not be punished for any of the murders listed in the indictment.
The Wilsons were advised of this bill and their counsel was heard in reply to it. Hare was released from close confinement so that he could communicate freely with his advisers. The High Court then passed the bill to the Lord Advocate so that he could present
his
arguments on the matter. It was by now 26 January, and Burke was to be hanged in less than forty-eight hours.
The High Court of Justiciary, with the Lord Justice-Clerk, Lord Boyle, presiding, considered the submissions of all sides at great length. The Lord Advocate, Sir William Rae, told their lordships that in giving Hare immunity from prosecution he had intended to cover any case that might arise. His assurance was unqualified, and calculated to obtain Hare’s cooperation by banishing from his mind any danger of future trial or punishment. Sir William considered that this freedom from prosecution, guaranteed in the public interest, included prosecution at the instance of any private party. He believed that he was now legally prevented from prosecuting Hare, and to do so would be dishonourable and unworthy of his office.
Mr Sandford, for the Wilsons, argued that Hare was not protected against private prosecution for Jamie’s murder because such protection was given only in respect of the crime on which he gave evidence. During the trial, Hare was clearly warned that he need not answer any question relating to any other murder but Mrs Docherty’s, because he could not claim the court’s protection on other matters. Hare had refused to answer the one question put to him about the death of James Wilson.
Hare’s representatives referred to ‘Janet Wilson, alleged sister, and Janet Wilson, alleged mother of the said James Wilson, alias Daft Jamie; but who, the petitioner is informed, and has reason to believe, do not truly possess these characters, and have produced no evidence thereof.’ Duncan McNeill argued that the Public Prosecutor alone had the right to punish criminals on the public’s behalf, and relinquished the right to bring Hare to trial in order to obtain the conviction of Burke. Hare had kept his part of the bargain, and if the Crown was now to renege on its agreement, Hare would not have a fair trial, the ends of justice would not be served, and the public would lose faith in the absolute integrity of the law. This last point was perhaps of doubtful veracity. The public had little interest in the niceties of the law. It simply wanted Hare hanged.
The debate was too complicated for the judges to arrive at a quick decision, and they gave themselves a week in which to reach their final conclusions. It is significant, however, that there was no suggestion that the execution of Burke should be postponed.
On 2 February, their lordships met again to deliver their judgement. Lord Boyle was supported by Lords Gillies, Pitmilly, Mackenzie, Meadowbank and Alloway. By a majority of four to two, the High Court of Justiciary ruled that Hare could not be prosecuted for the murder of James Wilson. They quashed the action of the Wilsons and ordered that Hare should be set free. The kernel of their decision was that, as Lord Mackenzie put it, ‘the protection of a
socius criminis
, obtained by his appearance as a witness, in a prosecution by the Lord Advocate, operates also against the private prosecutor’. Otherwise, it would be possible in theory for Mrs Docherty’s relations to prosecute Hare for a murder he had admitted, and he could be convicted without trial or jury on a charge on which he had been guaranteed immunity.
Hare was not out of the wood – or the prison cell – yet, however. The Wilson women immediately responded to the High Court judgement by notifying the Sheriff that they intended to bring a civil action against Hare for an ‘assythment’ of £500. This meant that they would sue him for damages, and they pleaded for him to be detained to prevent him from fleeing the country and avoiding this indemnity.
Hare was brought to court and questioned later that day, but refused to give any answers. He would not say if he was concerned in killing James Wilson, nor confirm where he was born, say where he intended to go if released from prison, or reply on any other matter, except that he admitted he could not write. But a fellow-prisoner named Lindsay said that Hare had told him that when he was liberated he would go back to Ireland. John Fisher, the chief warder at Calton jail, confirmed this. Hare then volunteered the information that he could not stay in Edinburgh as he had no home and no money, so he must go elsewhere to find work. He might remain in Scotland, or go to England or Ireland. The Sheriff therefore sent him back to prison until he could find £500. But there was no chance of him doing so, and the Wilsons withdrew the warrant after three days, resigning themselves to the inevitable. On 5 February 1829, Hare was freed from Calton jail at eight o’clock in the evening.
He was taken by hackney carriage in the company of Fisher, the turnkey, to meet the south-bound mail coach at Newington, a district he was not unfamiliar with. Hare, wearing a hat and well wrapped up in an old camlet coat against both cold and recognition, climbed up to an outside seat of the coach, and as it moved off, the considerate Fisher called out, ‘Goodbye, Mr Black; I wish you well home.’
The first stage of the journey was completed at Noblehouse, a village twenty miles south of Edinburgh, where the passengers were set down at an inn for supper. There, according to the
Dumfries Courier
, Hare was recognised by one of the passengers who had been travelling inside the coach; none other than Mr Douglas Sandford, in fact, who had been junior counsel for the Wilsons!
7
When the freezing Hare attempted to take an inside place for the next stage of the journey, Sandford ordered the guard to remove him and, to justify his action, revealed to his fellow-passengers the true identity of ‘Mr Black’. When the coach reached Dumfries, news that Hare was on it travelled like wildfire and a large crowd gathered outside the King’s Arms in the High Street. Soon the local police had something close to a riot on their hands, and Hare only escaped the fury of the mob by making it to the town jail. The crowd grew to an alarming 800-strong mob, and 100 special constables were hurriedly sworn in and armed with batons, while frenzied rioters hammered at the prison doors and smashed windows and lamps.
Hare was smuggled out in the early hours of the following morning and, escorted for some distance by local militia and one of the Sheriff’s officers, he was left to his own devices on the road to Annan. He must have crossed the border into England and was reported to have been seen twice in the vicinity of Carlisle in the next few days. That is the last we know of Hare’s fate or whereabouts.
Meanwhile, Burke’s confessions appeared in the press, inflaming the public mind even more against the one who had got away. Wild speculation and rumour soon filled the vacuum left by the absence of fact. A broadsheet published by J. Johnstone & Co gave an account, ‘copied’, it said, ‘from a Dublin Paper’, of the lynching of Hare by a mob in Londonderry. Another, published by Neil & Co, purported to give an account of Hare’s execution ‘at New York in June, from an American Paper’.
J.B. Atlay, however, asserted that Hare ‘certainly survived his confederate for over forty years’.
8
He produced no evidence for this statement other than the Victorian tale that a blind beggar who used to sit at a corner of London’s Oxford Street was Hare. He had been disabled, it was said, by a workman who discovered who he was and blinded him with quicklime. ‘His story was on the lips of every nursemaid, and he was pointed out to awestruck children as William Hare, one of the actors in the West Port murders.’
9
There is no good reason to believe that this really was Hare. It seems extremely unlikely, for his presence in London would not have been tolerated, and no one would have given him alms, when his vile career in Edinburgh had become known and led to copycat crimes in the capital, to say nothing of the widespread fear of ‘burking’ and urgent legislation to remove any incentive for similar crimes in the future.
It is more likely that Hare somehow made his way back to Ireland, probably from Liverpool, and ended his days there in obscurity with an assumed name, although it is only fair to mention that Lonsdale, writing in 1870, stated that Hare and his wife ‘returned to their native country (Ireland), and were no more heard of except in the pages of fiction till a few months ago, when Hare was reported as being seen in London’.
10
Now that we have followed the careers and fates of the homicidal quartet as far as we can, is it possible to apportion guilt with any confidence? To deal with the women first, was Burke telling the truth when he said they might have thought he and Hare were body-snatchers but had no suspicion of murder? This was his story in the ‘official’ confession, but he changed his tune somewhat in the
Courant
confession, eager to implicate both Hare and his wife. Although he repeated that ‘Helen McDougal and Hare’s wife were not present when those murders were committed’, he said that it was Hare’s wife who lured Daft Jamie into her house and, after signalling to Burke by stamping his foot in Rymer’s shop, locked Jamie inside the room with Burke and Hare. It was also Hare’s wife who urged Burke to murder Helen McDougal, if that story was true; and Hare’s wife who often helped him and Hare to pack the murdered bodies into boxes. There cannot be a shadow of a doubt that Margaret Laird (or Hare) knew, at least at a later stage, what was going on and – willingly or otherwise – aided and abetted her husband and Burke in their crimes. Asked during the trial what she supposed had happened to Mrs Docherty when she (Hare) had come in from the passage and not seen the old woman, she replied, ‘I had a supposition that she had been murdered. I have seen such tricks before.’ The first sentence might have been part of the line she and Hare had agreed to take at the trial. The second sounds like a slip of the tongue, but no one in court pursued the point. This was presumably because she could not give evidence against her husband and there had been some prior agreement between the lawyers not to delve into any murders other than those in the indictment, in order not to inflame the volatile public even more. What astute advocate would have let pass her remark that she had ‘seen such tricks before’, without insisting on knowing what she meant by that?
Burke said that he ‘had a good character with the police; or if they had known that there were four murderers living in one house they would have visited them oftener’. These are the words of a condemned Irishman retaining his macabre sense of humour, about ten days before his execution, with whoever interviewed him in prison and took down the
Courant
confession. It cannot, of course, be taken as evidence of Helen McDougal’s guilt as an accessory.
However, one murder which points to guilt on McDougal’s part is that of her distant relation, Ann McDougal. She was, according to Burke, a cousin of Nelly’s ‘first husband’, and came to Edinburgh to visit Burke and Nelly, presumably at Nelly’s invitation. She was murdered in Broggan’s house when she had been in Edinburgh for a few days, and her corpse was in the house, where Nelly lived, for a few hours, packed in a trunk which Broggan saw, apparently open with a body in it. Now, if we give Nelly the benefit of the doubt and assume she was out all that time and saw neither the body nor the trunk, there is still the question of what she supposed had become of her friend and distant relation. Would she have believed Burke if he had told her that Ann had suddenly gone home to Falkirk without a parting word to Nelly? Maybe; but of all the murders, this is the one which most calls into question McDougal’s ignorance of what was going on quite early in the proceedings.
The most powerful piece of evidence against Helen McDougal was the allegation by Mr and Mrs Gray that she had offered them money to keep quiet and not go to the police when the corpse of Mrs Docherty was found at the foot of her bed. Even if she had believed that Burke was acting within the law on previous occasions, she must have known that he was acting illegally this time, and therefore was an accessory during and after the fact. It is difficult to avoid the conclusion that, even if she had been entirely unaware of any murder before that of Mrs Docherty, she had tumbled to the truth by the night of Hallowe’en.
McDougal’s attempted bribery of the Grays points to her guilty knowledge in more ways than one. How could she and Burke, even with the willing participation of Hare and his wife, possibly have afforded to pay the Grays hush-money of £10 a week? Clearly, if the Grays had accepted this offer, it would not have been long before they ended up on Knox’s dissecting-table. It appears likely that McDougal made her ludicrous offer with this in mind. But she denied that she had offered any money to the Grays, and the other evidence against her was either based on the unreliable testimony of the Hares or was purely circumstantial, and consistent with a belief that Burke and Hare were body-snatchers.
Of course, if the Hares’ evidence in the witness box had been believed, and McDougal indeed saw Burke on top of Mrs Docherty before running out of the room, that would have been conclusive. She cannot have thought the drunken Burke was about to rape the woman – she must have known that he was going to kill her. But the jury was right in deciding that the case against her as an accessory to murder had not been proven. In an English court, in these circumstances, a woman who was possibly innocent would quite probably have been sent to the gallows. We cannot say with certainty that she was not in on the whole series of murders right from the start, but she is entitled to the benefit of the doubt in our minds, as well as the jury’s.