_Hare's Case before the High Court of Justiciary--Speech by Mr.
Francis Jeffrey--Opinion of the Judges--A Divided Bench--The Decision
of the Court._
The High Court of Justiciary met to decide on the case, as it now stood,
on the 2nd of February. The importance of the issue to be deliberated upon
is shown by the fact that on the bench were no fewer than six judges--the
Lord Justice-Clerk (Boyle), and Lords Gillies, Pitmilly, Meadowbank,
Mackenzie, and Alloway. Hare was represented by Messrs. Duncan M'Neill and
Hugh Bruce; the private prosecutors by Messrs. Francis Jeffrey, Thomas
Hamilton Miller, and E. Douglas Sandford; and the Crown by the Lord
Advocate, the Solicitor-General (Mr. Hope), and Messrs. Robert Dundas,
Archibald Alison, and Alexander Wood, Advocates-Depute.
At the outset, Mr. Jeffrey obtained the permission of the Court say a few
words on the power of the public prosecutor to enter into a compact with
accomplices whom he might think proper to adduce as witnesses. The
particular questions he wished to raise were--Had the High Court of
Justiciary no power over such a compact? Had the court, he asked, no
judicial discretion over the terms of such an agreement, and did it rest
with the Lord Advocate, and not with the court, to decide on its validity
and effect? If these were to be answered in the affirmative, then the
result simply was that the Lord Advocate was _per vias aut modos_
substantially invested with the royal prerogative of pardon. Mr. M'Neill,
on behalf of Hare, had nothing to add to what was contained in the printed
information for his client.
The first judge to give his opinion on the case before the Court was Lord
Gillies, who, after complimenting the Lord Advocate for having, by his
action in the charge against Burke, saved the country from an "indelible
disgrace," gave it as his opinion that his lordship was entitled to pledge
his responsibility for a pardon or remission. But proceeding to the main
question, whether this Court had powers, by law, to quash the proceedings
taken against Hare by Wilson's relations in consequence of what took place
at his precognition or at the trial of Burke, Lord Gillies, after a long
argument, gave it as his opinion that the Court could not do so, and
should accordingly reject the bill presented on behalf of Hare. He
conceived that, in the general case, the legal right and title of the
private party to prosecute was clear and indisputable. By the Act 1587,
cap. 77, and a prior enactment, 1436, pursuits at the King's instance were
only subsidiary; and even at the present time, after various changes, the
private right of prosecution was, he believed, as sacred and as
indisputable as that of the Lord Advocate. Then, on the question of _socii
criminis_, his lordship said that anciently a _socius_ was, as a general
rule, not admissible, and had no immunity; but by the Act 21 Geo. II., c.
34, an accomplice to theft or cattle-stealing was admitted, and immunity
was granted him if his evidence proved the guilt of the prisoner. In 1770,
in the case of Macdonald and Jameson, the doctrine was laid down, not that
an accomplice giving evidence was discharged of the crime, but merely that
his examination might _go far_ to operate as an acquittal from the crime
as to which he was examined. By a decision in 1794, a _socius_ was
declared safe; first, if he were _examined_ as a witness; and second, if
he _spoke out_. No doubt there had been a great extension of the law, but
taking the only statute that was in existence, they would find that it
only gave impunity to him who had been examined, and not to him who might
have been cited and not examined. It was said Hare was ready and willing
to give evidence on the two charges against Burke that were not remitted
to the jury; but this the court could not know, and, at any rate, an
examination as a witness, which _alone_ by law, even as extended by
practice, gave indemnity, did not take place. As for the relationship
existing, in virtue of the compact, between the Lord Advocate and Hare, it
was one thing for his Lordship to apply for and obtain a pardon from the
Crown, and another thing to have power to give a legal exemption from
trial to a criminal, merely by citing him as a witness.
Lord Pitmilly, however, took another view of the case. He concurred
generally in the historical _résumé_ of the law as given by Lord Gillies,
though he differed in his conclusions. "I feel intensely," said his
Lordship, "for the relatives of Wilson; I sympathise also with the public
desire to bring a great criminal to justice; but I feel more for the
security of the law; and I hold no consideration so important, as that
public faith, pledged by a responsible officer, and sanctioned by the
Court, in pursuance of uniform practice, should be kept inviolate, even
with the greatest criminal."
The history of the law relating to _socii criminis_ was very learnedly
reviewed by Lord Meadowbank, who submitted that it was clearly
established, from a train of practice running through a period of upwards
of two centuries and a half, that _socii criminis_ had been admissible
witnesses in the law of Scotland. Such being his opinion, he should have
presumed at all times, and under all circumstances, the examination of a
witness must have operated _ipse facto_, as an immunity to him from
subsequent prosecution for the crime respecting which he was called upon
to give evidence. In truth, he declared, so irreconcilable to all sound
reason would it be to hold, either that no such immunity was thereby
obtained, or that there was not created an equitable right, as in England,
to a pardon, that he could not imagine how any _socii criminis_ ever could
have been examined. In the present case he considered the promise of the
Lord Advocate barred the private prosecutors from taking action against
Hare for punishment, though it in no way interfered with their right of
prosecution for assythment, and he was clear that this warrant ought to
be discharged, and the complainer ordained to be set at liberty.
Lord Mackenzie went over much the same ground as his judicial brethren,
and in delivering his opinion that Hare ought to be set at liberty, he
said:--"Remembering, as we must do, the dreadful evidence he gave, it is
impossible to contemplate his escape without pain,--a pain always felt, in
some degree, in every case where an accomplice in a great crime is,
however necessarily, taken as evidence for the Crown, but never, I
believe, felt more strongly than the present. I sympathize with that
feeling; but I feel not less strongly that this man, however guilty, must
not die by a perversion of legal procedure,--a perversion which would form
a precedent for the oppression of persons of far other characters, and in
far other situations, and shake the public confidence in the steadiness
and fairness of that administration of criminal justice, on which the
security of the lives of all men is dependent."
Lord Alloway, on the other hand, felt bound to differ from the opinions of
the majority of his brethren, and to concur in that given by Lord Gillies.
He conceived that Hare might have a protection as to the murder of
Campbell or Docherty, he having been a witness against Burke and M'Dougal
in their trial for that murder, but he doubted if that protection extended
to the other two charges, as to Wilson and Paterson, or in any other
crimes for which Burke was never tried. As to the position of the Wilsons,
it was his opinion that a private prosecutor had an undoubted right to
prosecute to the highest doom every offender who had injured him, and for
the punishment of all offences in which he had an individual interest.
This opinion was founded upon the authority of every institutional writer
upon the criminal law of Scotland, upon a variety of statutes, upon the
decisions of the High Court of Justiciary, and upon the practice of the
country; and his lordship thought that these circumstances, without one
single authority to the contrary, would have been sufficient to prevent
the contrary doctrine from being maintained, chiefly upon the ground of
expediency and advantage to the public.
The Lord Justice-Clerk then gave his opinion, throwing his weight with the
majority of the Court. He commended the course taken by the Lord Advocate
in retaining Hare and his wife as evidence, for had not that been done it
was probable no verdict such as was given would have been come to by the
jury. As to Hare's position, it seemed to him that the Lord Advocate had
an undoubted privilege, according to long and established usage, of
selecting from those suspected of such crimes such persons whose evidence
he might deem material to secure the ends of public justice, and to assure
them that, upon giving evidence, he would never bring them to trial for
their concern in the transactions as to which they were examined. It
seemed to his lordship that Hare, having given evidence as he did,
completed his indemnity, and rendered it impossible for the public
prosecutor to turn round, after the conviction of Burke, and indict the
witness for his concern in either of the acts, the trial of which had only
been postponed at the earnest desire of the prisoners. It appeared to be
undoubted law that the public prosecutor having selected the accomplice,
and used his evidence upon the trial, thereby necessarily deprived parties
of the right which, but for his proceeding, they undoubtedly would have
had to prosecute. If this were not the case, then the relatives of
Docherty would also be entitled to prosecute Hare for the share he had in
her murder, but it was conceded by the counsel for the respondents (the
private prosecutors) that the relations of Docherty could not under the
circumstances maintain that right. If Hare were legally exempted from all
prosecution at the instance of the public prosecutor, for any accession he
might have had to the three acts of murder charged in the indictment
against Burke and M'Dougal, there seemed no ground in law for maintaining
that he might still be prosecuted at the instance of the relatives of any
of the three parties alleged to have been murdered.
These opinions, weighty and well considered, on a most important point in
the criminal law of Scotland, having been delivered, the Court finally
pronounced the following judgment:--
"The Lord Justice-Clerk and the Lords Commissioners of Justiciary having
resumed consideration of the bill of advocation, suspension, and
liberation for William Hare, with the Informations given in for both
parties, in obedience to the order of Court of 26th January last, and
Answers given in for his Majesty's Advocate, in compliance with said
order; Pass the bill; advocate the cause; and in respect that the
complainer, William Hare, cannot be criminally tried for the crime charged
in the warrant of commitment, therefore, suspend the said warrant, and
ordain the Magistrates of Edinburgh, and Keepers of their Tolbooth, to set
the said William Hare at liberty; and discharge all farther procedure in
the precognition complained of; and ordain the said precognition, in so
far as it has already been taken, to be delivered up to the Clerk of this
Court, in order to the same being sealed up, to abide the farther orders
of this Court, and discern."
But though Hare was now ordered by the High Court of Justiciary to be
liberated, he was not yet a free man. The relatives of Wilson, acting in a
sense as the representatives of public opinion, and certainly supported by
public contributions, took further steps, which brought about a new phase
of the case against Hare. Immediately after the court had pronounced that
it was incompetent to prosecute Hare criminally, there was presented to
the Sheriff a petition intimating the intention of Mrs. Wilson and her
daughter to prosecute him civilly for the sum of £500 in name of
assythment for the murder of their relative, and praying that, as he was
_in meditatione fugæ_, he should be detained in prison until he found
caution to appear in answer to their averments. The Wilsons then, before
the Sheriff, declared upon oath--"That the said William Hare is justly
addebted, resting and owing to the deponents, the sum of £500 sterling, or
such other sum as shall be modified by the Court of Justiciary, or any
Court competent, as stated in the petition: that the deponents are
credibly informed, and believe in their conscience, that the said William
Hare is _in meditatione fugæ_, and about to leave this kingdom, whereby
the deponents will be defrauded of the means of recovering said sum: that
the grounds of their belief are, that Hare was born in Ireland: that a
short time ago he was imprisoned for examination, preparatory to a trial
upon a charge of murdering James Wilson, of which they have no doubt he
was guilty: that owing to certain circumstances, he has not been brought
to trial for the offence, and there is reason to believe that he will
speedily be liberated from custody; and owing to the prevailing belief of
his guilt, and the popular indignation which has in consequence been
raised against him, it is impossible that he can, with safety to his life,
remain in Scotland, particularly as he has been suspected to be guilty of
other murders; and, therefore, they have no doubt, that as soon as he
shall be liberated from custody, which they believe will be this evening,
he will use utmost and immediate exertions to escape from Scotland to
Ireland."
This form having been gone through, Hare was brought in, and was asked if
he were concerned in killing James Wilson, to which he replied that he
would say nothing about it. He was then questioned as to his intentions
when liberated, but he remained silent all through. Mr. Monro, the agent
for the petitioners, moved the Sheriff to grant a warrant of commitment,
and offered to produce evidence that Hare was _in meditatione fugæ_ should
his lordship desire it. The Sheriff appointed a proof for that same day.
The first witness examined was William Lindsay, a prisoner in the Tolbooth
of Edinburgh, who stated that two or three days before Hare told him that
if he were liberated he would leave this country and go home to Ireland
immediately. John Fisher, the head turnkey in Calton Jail, corroborated.
Hare was then informed by the Sheriff that if he intended to remain in
Scotland, any witnesses he might wish to speak to that fact could now be
examined. The prisoner's tongue was loosened, and he replied that he had
no money, and must go somewhere to get work; that he had no domicile in
this part of the country, and could not remain in Edinburgh; and that as a
matter of fact he did not know whether he would remain in Scotland, or go
to Ireland or England in quest of employment. The Sheriff accordingly
granted a warrant for the detention of Hare until he found caution to
answer to any action that might be brought against him, in any competent
court, for payment of the sum mentioned in the petition.
Hare was thus again thrown back, and it must have seemed to him that if by
turning informer against Burke he had saved his life, he was to be
deprived of enjoying what remained of it as a free man. But the Wilsons
and their friends saw that to prosecute the action for assythment could
lead to no good result. Hare was penniless, and it was therefore hopeless
to seek compensation from him, while if they did so they would be throwing
away money needlessly in the process. The warrant was withdrawn on
Thursday, the 5th of February, and Hare was at last free to go where he
pleased.