_Hare's Position after the Trial--Warrant for his Commitment
Withdrawn--Daft Jamie's Relatives seek to Prosecute--The Case before
the Sheriff and the Lords of Justiciary--Burke's Confessions and the
"Courant"--The Lord Advocate's Reasons for Declining to Proceed
against Hare--Pleadings for the Parties._
From the conclusion of the trial until some time after the execution of
Burke, the position of Hare was one of great danger, notwithstanding the
protection which his evidence was supposed to have afforded him. After the
conviction of his accomplice he was, it has been seen, recommitted to
prison, and for a time it was believed the Lord Advocate was conducting
investigations in order to see if he could by any means proceed against
the informer. The press and the public clamoured for the indictment of
Hare, for all parties were now convinced that Burke, though undoubtedly
guilty of the crime for which he had been condemned, had in many respects
been but an instrument in the hands of his wily and more vicious
confederate. Some incidents occurred which gave colour to the impression
that a criminal indictment would be laid against Hare. On the 1st of
January, 1829, the _Courant_ informed its readers that towards the end of
December a girl, who had at one time acted as a servant to Hare, had been
apprehended in Glasgow, whither she had fled on being cited as a witness
in Burke's trial, and that her evidence would now probably be used against
Hare. This was Elizabeth Main, who is mentioned in one of Burke's
confessions as Elizabeth M'Guier or Mair.
But in addition to the general public there were two parties who may be
said to have had a kind of personal interest in seeing Hare brought to
justice. These were Burke and Helen M'Dougal. The condemned criminal, it
was stated by the _Courant_, made his first confession before the Sheriff,
more for the purpose of inculpating Hare, than with any idea of giving a
general view of his crimes. So eager was he to see his late colleague
suffer the same punishment as himself, that he offered to give information
of circumstances connected with the murder of a woman by Hare in the
course of the preceding summer. This was the old matter over which the
quarrel occurred. M'Dougal, also, waited on the Sheriff on the 27th and
29th of December for the same purpose. Besides these, if the _Courant_ is
to be trusted, other witnesses were precognosced, notably several persons
who were known to have been in the habit of frequenting Hare's house, but
as the police officials had become even more circumspect than ever, not a
hint as to the drift of their information was allowed to reach the public.
These circumstances show that in addition to considering the legal aspect
involved by Hare's protection as an informer, the Lord Advocate had fully
inquired into the possibility of putting him on his trial for a crime to
which that protection did not apply. His conclusion was that he could do
nothing, and it was definitely ascertained by the 15th of January that
the commitment obtained by the Crown after the trial would be instantly
withdrawn. Every precaution had been taken by the public in view of this
contingency, and a subscription had been made to enable the relatives of
James Wilson (Daft Jamie) to take up the case as private prosecutors.
On the 16th of January, then, a petition was presented to the Sheriff,
charging Hare with the murder of "Daft Jamie," and his lordship granted
permission to take precognitions. When Hare was visited by the agent and
counsel employed by Mrs. Wilson (the mother of the murdered lad), he
refused to answer any questions, and when leaving the room to which he had
been taken to be examined, he remarked, with a sardonic laugh, to a person
standing near, "They want to hang me, I suppose." This was not, however,
sufficient, and Mr. Duncan M'Neill, as counsel for Hare, on the 20th of
January, presented to the Sheriff a petition for liberation and for the
interdict of the precognitions instituted by the private prosecutors. On
the following day the counsel for both parties were heard, and the Sheriff
pronounced a decision, in which he said:--"In respect that there is no
decision, finding that the right of the private party to prosecute is
barred by any guarantee, or promise of indemnity given by the public
prosecutor, refuses the desire of the petition; but in respect of the
novelty of the case, supersedes further proceeding in the precognition
before the Sheriff, at the instance of the respondents [the private
prosecutors], till Friday next, at seven o'clock, in order that William
Hare may have an opportunity of applying to the Court of Justiciary."
There was accordingly presented to the High Court of Justiciary, on behalf
of Hare, a bill of advocation, suspension and liberation. This was an
exceeding long document, setting forth all the circumstances of the case,
in which it was pleaded that the case by Mrs. Wilson against the
petitioner--who had given evidence against Burke on the assurance that if
he made a full disclosure of all he knew relative to the several murders
which formed the subject of inquiry, no criminal proceedings would be
instituted against him for any participation or guiltiness appearing
against him--was incompetent, irregular, oppressive, and illegal, and that
he was entitled to liberation. The review of the court was asked on the
Sheriff's judgment. This petition was presented to the court on the 23rd
January, and it was ordered to be served on the agent for the private
prosecutors, while the parties to the case were ordained to appear before
the court on Monday, 26th January. On this same day, Hare presented
another petition to the Sheriff craving to be released from close
confinement, and to be allowed to communicate with his counsel and agent.
The Sheriff pronounced an interlocutor to that effect.
In accordance with the liberty granted by the Sheriff to the private
prosecutors to take a precognition as to the murder of Daft Jamie, a visit
was, on the 23rd January, paid to Burke in the condemned cell by the
Sheriff-substitute, one of the city magistrates, and Mr. Monro, S.S.C.,
the agent for Mrs. Wilson and her daughter. The criminal spoke out fully
as to the circumstances attending the murder of the unfortunate lad, and
thus far satisfactory progress had been made.
But an incident occurred which diverted public attention to a certain
extent in a different direction. This was an announcement in the _Courant_
of Monday, 26th January, that in the issue of the following Thursday there
would be published a full account of the execution of Burke and of his
conduct during his last moments; together with an important document which
had been in their possession for some time--a full confession or
declaration by Burke, "which declaration was dictated and partly written
by him and was afterwards read by him, and corrected by his own hand, and
his signature affixed to attest its accuracy." This announcement raised
the hopes of the public to a high pitch, for the information that had
reached them before was only to be gained from a trial, the scope of which
was confined solely to one event, and from vague rumours and uncertain
statements. Now, it was expected, the whole conspiracy would be made
patent. But the announcement was somewhat injudicious and premature, as
the case against Hare was pending in the High Court of Justiciary, and it
was plainly evident that until a decision was pronounced in it, any
confession by Burke would have a prejudicial effect upon him. Accordingly,
when the High Court that morning had heard the counsel for parties, Mr.
Duncan M'Neill, on behalf of Hare, called attention to the threatened
contempt of Court by the _Edinburgh Evening Courant_, in promising to
publish the confessions of Burke, and he asked that such publication be
interdicted, especially in so far as related to the murder of James
Wilson. The Lords of Justiciary concurred in the propriety of the
application, granted interdict of the publication in the _Courant_ of the
document which would likely prejudice Hare, and "recommend all other
newspapers to abstain in like manner from so doing." This was highly
disappointing to the public. There was, however, no help for it but to
wait, and on the Thursday the _Courant_ was under the necessity of
intimating to its readers:--"We regret to state that owing to an interdict
issued on Monday last by the Court of Justiciary, to which we are bound to
yield the most respectful obedience, we are prevented for the present from
laying before our readers the confessions of Burke. But so soon as it is
removed, we shall lay this document before our readers, as formerly
promised."
When the Bill of Advocation came before the High Court of Justiciary on
Monday, the 20th January, the counsel for the parties were heard at
length, after which an order was made that the bill be intimated to the
Lord Advocate to make such answer to it as he should think necessary; and
also that the counsel for the parties should lodge informations upon the
subject matter of the bill by the following Saturday. The Lord Advocate's
answer was interesting in more ways than one, for in addition to bringing
into prominence the question of whether the private prosecutor was
superseded by the public prosecutor, he detailed the difficulties by which
he had been beset in the preparation of the case against Burke. Having
briefly touched on the question as to whether the court had the power to
require, in this shape, a disclosure of the grounds on which he, as public
prosecutor, had been guided in the exercise of his official discretion, he
pointed out that the four persons arrested for the murder of Mrs.
Docherty, denied all accession to the crime. The evidence he had been able
to gain was, he found, defective, and was not sufficient to ensure a
conviction from a Scottish jury, which was uniformly scrupulous in finding
a verdict of guilty where a capital punishment was to follow. The only
mode by which the information essentially awanting could be procured was
by admitting some of the accused persons as witnesses against the others,
and as he had reason to suspect that at least another case of a similar
description had occurred, he felt it to be his imperative duty not to rest
satisfied until he had probed the matter to the bottom. For the public
interest it was necessary to have it ascertained what crimes of this
revolting description had really been committed, who were concerned in
them, whether all the persons engaged in such transactions had been taken
into custody, or if other gangs remained whose practices might continue to
endanger human life. A conviction of all the four persons might lead to
their punishment, but it could not secure such a disclosure, which was
manifestly of more importance. The question then arose as to what one of
the four should be selected as a witness. M'Dougal positively refused to
give any information, and as the Lord Advocate deemed Burke to be the
principal party, Hare was chosen, and his wife was taken with him, because
he could not bear evidence against her. Hare was, in consequence, brought
before the Sheriff on the 1st of December for examination, and then, by
authority of the Lord Advocate, he was informed by the Procurator-Fiscal
that "if he would disclose the facts relative to the case of Docherty, and
to such other crimes of a similar nature, committed by Burke, of which he
was cognisant, he should not be brought to trial on account of his
accession to any of these crimes." "This assurance," continued the Lord
Advocate in his answer, "had no reference to one case more than another.
It was intended for the purpose of receiving the whole information which
Hare could give, in order that the respondent might put Burke and all
others concerned on trial, for all the charges which might be
substantiated. In giving it the respondent acted under the impression, and
on the understanding, that when offences are to be brought to light, in
the course of a criminal investigation carried on at the public interest,
such assurance altogether excluded trial at the instance of any private
party. In its nature, this assurance was thus of an unqualified
description, and was calculated to lead the party to believe that the
_possibility_ of future trial or punishment was thereby entirely excluded.
The assurance was so meant to be understood." Having briefly alluded to
the circumstances attending the trial, when he was prevented from
examining Hare and his wife as to each of the three murders set forth on
the indictment, his Lordship said it was from the information obtained
from Hare, on the assurance of immunity, that he conceived he was enabled
to secure a conviction. He proceeded:--"The warrant of imprisonment
against Hare and his wife, at the public instance, has since been
withdrawn, in consequence of its having turned out, after the most anxious
inquiry, that no crime could be brought to light in which Hare had been
concerned, excepting those to which the disclosures made by him under the
above assurance related." After he had given the assurance, and obtained
the results he had, the Lord Advocate said he would not make any attempt
to prosecute Hare, indeed, he "should strongly feel such a proceeding,
upon his part, dishonourable in itself, unworthy of his office, and highly
injurious to the administration of justice."
After having given so fully the Lord Advocate's reasons for declining to
proceed against Hare, it will not be necessary to do much more than refer
to the information lodged by Hare himself, especially as it goes over to a
great extent much the same ground. It was maintained that on account of
the promise and compact with the public prosecutor he could not now be
tried in order to punishment for the murder of James Wilson; and on the
question of his position as between public and private prosecutors, it was
stated:--"When an offence is committed, the duty of the public prosecutor
is to proceed in the matter with a view to the interests of the community
in relation to the wrong done, without regard to the effect his
proceedings may have upon the power or right, if such exists, of a private
party to come forward and prosecute for punishment. The interest of the
community, in the matter of punishment, is the paramount interest, and the
only ultimate interest which the law can regard; although different
persons may, under certain circumstances, be permitted by the law to
vindicate that interest. The public prosecutor, as being the person
entrusted with the interest of the community, and as representing the
community, has the primary right to take up the matter; and, having
commenced proceedings for behoof of the community, he cannot be stayed or
hindered, or impeded in his prosecution for punishment, by any right or
any interest which any private party can claim; and he may do, and daily
does, many things which exclude the private party from demanding
punishment.... On the other hand, none of these proceedings on the part of
the public prosecutor, acting for behoof of the community, can exclude or
infringe upon the inherent personal right and interest of the private
party to prosecute for _assythment_ or _satisfaction_. That right belongs
to him as an individual, not as a member of the community at large. He
claims _that_, not to deter others from committing the like crimes, but to
solace _his own_ wrongs. That is not a matter of _punishment_, but of
_satisfaction_."
Some more attention must, however, be paid to the "Information for Janet
Wilson, Senior, and Janet Wilson, Junior, Mother and Sister of the late
James Wilson, generally known by the name of Daft Jamie," the private
prosecutors, prepared by Mr. E. Douglas Sandford, under the direction of
Mr. Francis (afterwards Lord) Jeffrey. After the usual review of the
proceedings up to that time, the private prosecutors set forth their
intention thus:--"The prosecutors are, in the _first_ place, obliged to
support their title in the present prosecution, and to show the
constitutional right which, according to the law of Scotland, they
possess, of bringing the individual to justice, whom they conceive guilty
of the atrocious crime by which they have been injured. But, _2ndly_, the
prosecutors are anxious to contest the doctrine of indemnity upon which
the prisoner has founded, and to show that he is stretching, far beyond
its legal limits, the indulgence granted by the Court of Justiciary to
those who are examined before it as _socii criminis_." As to the right of
the private party to prosecute, this, it was contended, was a fundamental
and constitutional principle in the criminal jurisprudence of
Scotland--not an antiquated right, but one that was recognised by the
latest authorities. Having quoted Burnet and Hume, the private prosecutors
went on to say, that, legally speaking, there were only two situations in
which a prisoner could plead indemnity in bar of trial--previous acquital,
by a jury, of the crime of which he was charged, or remission by the
Crown. But the point which the prosecutors were anxious to establish was
"that whatever may be the nature of the private arrangement between the
public prosecutor and the criminal, and whatever may have been his
inducement to give up the right of calling upon the criminal to answer at
the bar of justice, for the crime of which he is guilty, that arrangement
cannot deprive the private party of his right to insist for the full pains
of the law. If the law contemplated the power of the public prosecutor to
deprive the private party of his right to prosecute by arrangements to
which the latter is no party, it had better declare at once that the
private instance shall be at an end, because it virtually would be so. In
every case where the public prosecutor wished to protect a criminal, and
shield him from the effects of crime, an arrangement, under the pretence
of a precognition and searching for evidence against a third party, might
at once be made; and if the doctrine maintained on the part of the
prisoner be correct, that would prevent all prosecution at the instance of
the individual injured." The assertion of the prosecutors was that their
legal right to investigate the circumstances attending the death of their
near relation, and to indict the accused party if they should find
sufficient ground to do so, could not be interfered with by the
proceedings of the public prosecutor, in circumstances over which they had
no control. In point of form, it was required by the law that the Lord
Advocate should grant his concourse to a prosecution before the High Court
of Justiciary, and he had no right to refuse this concourse, but if he
should so refuse it he could be compelled to grant it, for the reason that
it was not _in arbitrio_ of him to deprive a party of his right. In
support of the contention for the private prosecutors various cases were
cited, particular stress was laid upon the warnings addressed by the Lord
Justice-Clerk and the counsel for Burke and M'Dougal to Hare when he was
in the witness box, that the protection of the Court only extended to the
case under trial, and not to the other two charges in the indictment,
which had been deserted _pro loco et tempore_.
Such, in brief, were the pleadings for the parties, and the decision of
the Court was awaited by all with great interest--by the lawyers because
it would establish an important legal precedent, and by the public because
they hoped, through it, to see Hare put on his trial and convicted of the
murder of Daft Jamie.