THE STORY BEHIND THE ANATOMY ACT

V.A. Abdul Azeez, B.A., B.L., Legal Assistant, Kerala Law Secretariat

In the judicial annals of Scotland the trial that created the greatest sensation is that of Burk and Hare. The case created world-wide interest by reason of the complicated atrocity of the crimes and the importance of the legal principles involved. When the deadful tale was first unfolded public feeling was worked up to the highest pitch of excitement.

The Scots regarded with superstitious veneration, the mortal remains of their kindred. The natural repugnance to dissection of the human body combined with religious sentiment remained for centuries a barrier for anatomical research. Edinburgh grave-yards appeared more as zoological gardens as the graves were barred and grated as a protection against human wolves. Complaints of rifled graves were frequent. The lawful supply of dead bodies was wholly inadequate to meet the growing needs of Medical Schools. The punishments for exhumation though severe could not counter the equally inexorable laws of supply and demand. On 9th March 1742, the body of a country gentleman which was buried in the West Kirkyard was discovered on the dissection table of a Surgeon. The news spread like wild fire and in the evening, an angry mob attacked the house of Dr. Martin and the other Surgeons of the locality.

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William Burk, born in 1792 in Ireland emigrated to Scotland in 1818. He had already a wife and six children in Ireland, but he fell in love with one Helen Dougal, a prostitute, and lived like man and wife. They were running a lodging house in the West Port. In the autumn, they wrought at the harvesting near Penicuik and on returning to town made acquaintance with a Mr., & Mrs. Hare.On 29th November 1827, an old army pensioner died in this lodging house. Burk was genuinely grieved over this, because the old man owed him £ 5 and there was no possibility to realize the amount from him. Hare appeared on the scene as an angel of wisdom and whispered something to his comrade. Burk was very much pleased with Hare. They took out the corpse and concealed it in the bed and put banners bark from behind the house into the coffin, covered with a sheet and carried it away for interment. When it was «-dark, they engaged a porter to carry the body to the Surgeons Square. They were introduced to Dr. Knox. The Doctor appeared to be very much pleased with them and gave £ 7-10 s. The doctor did not ask them how they obtained the body, but he said that he would be glad to see them again when they had any other body to dispose of. These words worked powerfully on the cupidity of the two miscreants. Here was a royal road to success and wealth. But folks did not die often enough. After long waiting, Burk and his friend conceived the notion that it was unnecessary to await the co-operation of nature. Their idea was that feeble, friendless wanderers would serve their purpose. So they began to prowl about the town on the lookout for persons with whom the firm was likely to do business.

Early in the spring of 1828, a woman from Gilmerton came to Hare’s house as a nightly lodger. She and Hare became merry and drank together. She became very sick and vomited. She was lying on her back and quite insensible from drink and Hare clapped his hand on her mouth and nose and Burk laid himself across her body in order to prevent her from making any disturbance. She never stirred. They took her out of bed, undressed her and put her into a tea chest. In the evening, a porter came and took the chest to the Surgeons Square. They were given £ 10. This time Dr. Knox smiled at them to cheer them.

Next was an Englishman from Chesire, a lodger of Burk. They murdered him in the same manner as the other sold to Dr. Knox for £ 10.

Now the business was flourishing. Then came to this Lodge Mary Peterson, a young and beautiful prostitute. She was smothered to death by Burk and Hare after entertaining her with drinks. She was only four hours dead till she . was in Dr. Knox’s dissecting table. She was a handsome figure, well-shaped in body and limbs. Dr. Knox and his disciples were struck by her beauty and brought a painter to have a look at her. Her body was preserved for three months in whisky and during this period a portrait of it was painted.

The ease and success attending these operations convinced Burk and his friend that they had solved the irksome problem of making a living. They dressed better and pretended to, be big businessmen.

One morning, Burk saw two policemen dragging a drunken woman to a nearby station. Burk was shocked by the roughness of these officers and politely told them that she is a distant relation of his and would take care of her. The policemen were happy to entrust the old woman to the care of Burk. That evening, the poor old woman was freed from all earthly penalties and lay quiet on a dissection table of Dr. Knox. Over and above the moral benefit accruing from the performance of a kind action, Burk was richer by £ 10.

For nine months the firm of Burk and Hare carried on their trade with success murdering nearly 16 persons, but their last speculation miscarried and their affairs were in the hands of the public prosecutor.

Hare turned an approver and Mrs. Hare was released on 19th January 1829, She was recognized and was soon in the centre of a hostile crowd. She was pelted mercilessly with mud and stones by an angry crowd. At last the policemen with great difficulty rescued her.

Burk was hanged on 27th January 1829. One of the densest crowds ever witnessed on the streets of Edinburgh collected to witness the execution of Burk. Every window and house top from which a glimpse of the criminal could be obtained was occupied. The public paid 5 to 20 shillings to obtain a seat near windows commanding a full view of the scaffold.

The body of Burk was exhibited on the black marble slab of the anatomical theatre. All day long a continuous steam of sight-seers flowed through the chamber as was calculated sixty per minute, giving a total of 30,000 persons.

The fullest measure of poetic justice attended Burk’s dissolution. He died as did his sixteen victims by suffocation. His body also became a subject for the advancement of science, under the anatomist’s knife.

Today in the central hall of the Anatomy Museum of the Edinburgh University, the skeleton of a human being is suspended in a show case in a conspicuous place. There is note at the bottom of the case, ‘William Burk, the murderer’, skeleton of a scoundrel who was hanged on 27th January 1829.

This without any precedent in the annals of crime amounts to the realization of a nursery tale. This is also the first instance of murder alleged to have been perpetrated with the aforethought purpose and internet of selling the murdered body as a subject for dissection to anatomists.

In October 1925, a conflict developed out of an exchange of fire between Greek and Bulgarian frontier guards. The Greek army advanced into the Bulgarian territory. Bulgaria did not resort to counter measures, but referred the matter to the Council of the League. The Council emphasized that States would do well to resort to the Council rather than to self-defence.

The International Military Tribunal at Nurenberg and Tokio tried the major war criminals of the Second World War. It was left to this Tribunal to draw the necessary conclusions from German aggression against Poland in 1939 and her subsequent invasions throughout Europe. The main charges against them were that they waged war in violation of international treaties, agreements and conventions

Article 2 (4) of the U. N. Charter runs as follows:

“All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State or in any other manner inconsistent with the purposes of theU.N.”

The prohibitions envisaged in this article are not free from ambiguity. In 1948 November, Greece complained that the armed bands of Bulgaria, Albania and Yugoslavia constituted a threat to the territorial integrity of Greece. In the developments in Gautemala in 1954 and the Burmese corn-plaint against Nationalist China in 1953 and the developments in Indonesia, Palestine and Korea in recent times, the question involved was breach of article 2 (4). Similar difficulties exist in the dispute over Kashmir between India and Pakistan. It is doubtful how far truce lines and neutral zones will provide a solution for these thorny problems.

The right of self-defence has its origin directly and chiefly in the fact that nature commits to each his own protection. The exercise of the right of self-defence as a means of protecting certain essential rights of States certainly finds a place in a system of International law, so long as there is no guarantee of the protection of these essential rights by the organized community of States.

Sound v. Silence

                                                                                                 In lighter vein

(T.M. Abdullah, Advocate, Tellicherry)

Two types of Judges (with respect). One: a light-weight, free, pleasant, informal, resisting out speaking but rarely succeeding, given to querying to understand, discoverable and therefore landing in trouble with a transfer application, not a stickler to procedural dots and dashes;—this is sounding type. The other: a heavy-weight, reserved, formal, successfully suppressing outspeaking, unpredictable and undiscoverable, morose and sometimes full of a feeling of 'supreme within the four walls of the court'—this is silent type. The first type is lovable; the second, fearable.

"No adjournment, you see, I must explain to High Court. You know we have our difficulties. You must co-operate with us."

So saying he disarms the lawyers.

"NO NO NO ADJOURNMENT" gryffly saying he resiles into silence, keeps by, takes up other papers, will not let you know when he will revert to it. You have to signal to the BC to know what has happened to it. He either signals back to bear up for some time or he also keeps mum. Then it is the faithful duty of the Junior to sit tight and know the fate which come minutes before the court rising. All this could be avoided with a little touch of light-weight.

"Do "you know where you are standing and whom you are addressing?" The question is flung at one who was practising when his honour was a little 'tot' waddling naked at home.

"I am sorry, your honour, if I have in any way offended your honour". A wise lawyer will submit with a bow.

The 'law & order' type of a young lawyer will react otherwise. This is 'supreme within the four walls' facet.

"I am supposed not to know. You must assist me. We both are officers of the court" sounds the light-weight.

"I know all that. You need not teach me" is the style of the heavy-weight.

"I am no arbiter of your quarrels. Have them in full and then argue your case" is a touch of humour of the light-weight.

"I will report to the Bar Council your behaviour in court. DO YOU UNDERSTAND?" is the 'masterly' way of the heavy-weight.

'He was a school master in previous birth' a hushed remark of a member of the 'Gossip Group'.

"Please don’t make noise; I am disturbed" observes the heavy-weight.

'Let him go to a burial ground for silence' whispers aside in absolute hush, one of the 'L & O' youngsters.

"I have read the papers Tell me what...why...how etc" showers searching questions, the sounding one The 'silent valley' of a heavy-weight will not let anything escape the mouth but keep glum and deliver the goods with high blood pressure.

A pleasantly respectful and respectable atmosphere congenial to the dignity of the honourable office and the decorum of the noble profession is ideal; all agree.

THE KERALA LAWYERS’ FEDERATION

(A.V. Mathew, District Court Vakil, North Paravur)

It has been announced in the Press that a conference of the representa­tives of the Kerala Bar Association was recently held at Ernakulam under the President ship of Sri. K.P. Abraham and that ‘it was resolved thereat that an organization named “The Kerala Lawyers’ Federation” should be formed.

A committee with Sri K.T. Thomas as convener and eight other prominent members of the Bar as members, with power to co-opt, was also, elected totake the necessary steps in this connection. This praise-worthy attempt on the part of the prominent members of the Bar at Ernakulam has to be welcomed as an eye-opener. The committee elected for the purpose would do well to co-opt members on an all Kerala basis so that there might be adequate representation even at the start of the proceedings for inaugurating the proposed All Kerala Lawyers’ Federation.

It could be seen from the early pages of Legal Weeklies that an All Travancore Vakils’ conference was functioning for several years and that at the annual sessions thereof, which my humble self had the good fortune to attend; various resolutions congenial to the vital interests of the legal profession were unanimously passed. I have personally witnessed the fact that the late lamented Sris. E.J. John, K. Kochukrishna Marar, K.G. Sesha Iyer and K.A. Krishna Iyengar, doyens of the Bar and legal luminaries had taken a very keen interest in-shaping the destinies of the organization by their hearty co-operation, timely advice and accredited leadership, as could be seen from the Legal Literature of the erstwhile Travancore State.

It cannot he gainsaid that very many things, of considerable moment, affecting the legal profession have to be discussed at length and settled.

For the sake of illustration I shall very briefly state a few of them here below:-

(1) Matters which are conducive to the protection of the legitimate rights and privileges of the legal profession.

(2) Uniformity in matters affecting professional etiquette.

(3) Uniformity in practice and procedural methods to be adopted by Courts of Law in the mofussils of the State.

(4) Matters affecting the weal of the members of the Bar, especially with reference to recruitment to the Public Service.

(5) The ways and means of encouraging the junior section of the Bar.

(6) Various matters of a miscellaneous nature.

We are living at a time when all important progressive movements-social, educational, political and otherwise-are guided by central organizations and it is high time that the Kerala Lawyers, also, move with the spirit of the times.

It is, therefore, fervently hoped that the starting of an All Kerala Lawyers Federation at an early date would engage the serious attention of the Lawyers in Kerala.

SALES TAX ON ‘WORKS CONTRACT’ IN KERALA

(By P.G. Rajagopalan, Advocate, Tellicherry)

The recent decisions of the Supreme Court and the Kerala High Court j on the subject of Sales Tax on ‘Works Contract’ creates certain anomalous situation in the levy of Sales Tax in Kerala State.

The Supreme Court in Madras v. Gannon Dunkerly & Go. (AIR. 1958 S.C. 560) held that the Madras State is not entitled to legislate on the subject of Sales Tax on ‘Works Contract’ for the reason the words ‘sale of goods’ in entry 48 of list II of Vllth Schedule of the Government of India Act, 1935 cannot be construed in its popular sense but must be interpreted in its legal sense. His Lordship Venkatarama Ayiar, J. observed: “A power to enact a law with respect to tax on sale of goods under the entry must, to be intra vires be one relating in fact to sale of goods and accordingly, the Provincial legislature cannot in the purported exercise of its power to tax sales tax transactions which are not sales by merely enacting that they shall be sales.”The same question came up for consideration before the Kerala High Court in two cases, one (1957 KLT 380) before the above mentioned Supreme Court decision and one after the decision (1959 KLT 582). Both the decisions arose under the Travancore-Cochin Sales Tax Act, 1125. In both these cases the Kerala High Court held that the legislation is valid on the ground that ‘the principle of the Madras Case cannot apply to Travancore-Cochin Sales Tax Act, 1125 because on 5-1-1950 when it was passed and also on 17 - 1-1950 when it received the assent of the Raj Pramukh the Travancore-Cochin legislature had plenary powers of legislation and the Constitution had not come into force so as to bring the fetters of entry 54 in list II of the Vllth Schedule therein corresponding to entry 48 in list II of Vllth Schedule of the Government of India Act, 1935 which governed the Madras Case.

The anomaly referred to in the beginning of this article arises out of extension of Travancore-Cochin Sales Tax Act, 1125 to Malabar area. Travancore-Cochin Sales Tax Act, 1125 was extended to Malabar area by Travancore-Cochin Sales-Tax Amendment Act, 1957 (“Act XII of 1957) of Kerala legislature. This Act came into force on 1-10-1957.

It is clear from the Supreme Court decision that the State legislature is not competent to enact on the subject of Sales Tax on ‘Works Contract’ after the Constitution came into force. Therefore the enactment which extends the Sales Tax on ‘Works Contract’s beyond the powers of Kerala legislature it may be argued that the Kerala legislature is only adopting or extending a valid legislation to another part of the State. This argument is not acceptable because if legislature cannot do anything directly, it cannot do it indirectly. The observation of ‘the Allahabad High Court in Dureshewar Dayal v. Secretary of Bar Council (A.I.R. 1954 All.728, DB) is apposite in this context: “Adopting a law made by another legislature is not a matter to be found in list II and III. Therefore no law made by a State legislature can be justified on the ground that though it is not with respect to any of the matters dealt with in list II and 111, it is simply adopting a law validily made by another legislature.”

“If a legislature cannot do anything directly, it cannot do it indirectly; if a State legislature cannot directly enact with respect to a certain matter it cannot do so indirectly by simply adopting a law made with respect to it by another legislature.”

From the above discussion it can be concluded that the Kerala legislature is not competent to extend Sales Tax on ‘Works Contract’ to Malabar area and to that extent Travancore-Cochin Sales Tax Amendment Act, 1957 (Act XII of 1957) is ultra vires the Constitution.