the notoriety for humour and drollery he had acquired among his
acquaintance.
While we allow that Burke was not such a reprobate all his life, as
he was towards the close of it, we question whether he ever possessed
much of “the elements of morality,” even in his youth. An account has
been adopted which gives some colour to the opinion that his morality
was purer than the actual fact would warrant us to allow. We have
already stated in a former number, that he served only one gentleman
before entering the militia. This is on his own authority, and we
believe also, from the same source, he was never either a baker or a
weaver, so far from being three years a groom after his discharge from
the Donegal militia, he did not remain one year in Ireland, which the
dates will abundantly testify. He first proved unfaithful to his wife,
and as we have seen, afterwards deserted her and his children, on
discovering that his father-in-law properly appreciated the selfishness
and worthlessness of his character, and refused to trust him too far.
His living in adultery with the woman M‘Dougal, does not display great
attainments in morality, as in like manner, his unfaithfulness even to
her, and frequent brutal usage of her, cannot exhibit his benevolence
in a very favourable light. It is altogether too much to elevate this
unnatural and anomalous monster into a being possessing some of the
best and noblest attributes of humanity, merely that the dogmas of a
favourite pursuit should be supported. We opine, that the lauders of
the immaculate science must content themselves with the fame it has
acquired from the developments of former murderers, or alter the whole
systems of metaphysics heretofore received, should they not be able to
discover a new designation for the bumps they may find on a murderer’s
cranium.
PROCEEDINGS AGAINST HARE.
After the trial and conviction of Burke, some very interesting
proceedings were instituted by the mother and sister of James Wilson
or Daft Jamie, the object of which was to bring him to trial for his
participation in the murder of their relative. These proceedings have
issued in the liberation of Hare after an argument and determination in
the High Court of Justiciary. This question has been regarded by some
persons as really of no material importance, because whatever might
have been the issue of it, means would have been adopted by the public
authorities for obtaining a pardon for Hare if he had been found guilty
under the contemplated prosecution. This circumstance does not, in our
apprehension, lessen the importance of the question, inasmuch as the
conviction and punishment of any single criminal, however atrocious,
is a matter of trivial moment when compared with the great and
constitutional principles of law which constitute the code of our
criminal jurisprudence. Viewing these proceedings therefore in this
light, there has rarely, if ever, been a question raised in our Courts
of Law, involving principles of more paramount interest, as it relates,
on the one hand, to the rights and powers of the Public Prosecutor,
which are, in other words, the rights and powers of the public; and
on the other hand, the rights and privileges of individuals aggrieved
by the perpetration of crimes, which affect their property and their
feelings. It became a matter of serious concernment to have it clearly
and well decided by the highest legal authorities, what are the extent
and limits of the Lord Advocate’s powers as Public Prosecutor, to enter
into compacts with associates in crime, whereby he may afford them an
immunity from punishment for participation in crimes, on condition of
their affording such evidence as may be requisite for the discovery and
punishment of offences, in cases, which from their very nature, can
neither be traced out nor established to conviction of the delinquents,
without such information and evidence; and how far such compacts may be
carried, without infringing the privileges of private parties, who are
by law entitled to sue in their own name, and for their own interests,
for redress of their individual wrongs? This is the question which has
been raised in the present instance, and which has now been solemnly
decided by the Supreme Criminal Court of this country.
[Illustration: WILLIAM HARE,
as he appeared in the witness-box, taken in Court.
_Published by Thomas Ireland Jun^r. Edinburgh._]
The proceedings referred to originated in an application for Hare, to
the Sheriff of Edinburgh, on the 20th of Jan. 1829. His petition was to
the following effect:--
That of this date (November 10, 1828) he was apprehended on a warrant
of the Sheriff-Substitute, granted on the application of the Procurator
Fiscal of the county, and was committed to the jail of Edinburgh a
prisoner, on a charge of murder: That the petitioner was examined
before the Sheriff-Substitute of the county in relation to various
acts of murder alleged, or suspected to have been committed by William
Burke, then in custody, and other persons: That in the course of these
examinations, the petitioner was assured by the Public Prosecutor, that
if he made a full disclosure of all he knew relative to the several
alleged murders which formed the subject of inquiry, no criminal
proceedings would be instituted against the petitioner himself in
relation thereto, whatever might be the circumstances of suspicion
or apparent participation or guiltiness appearing against him: That
the petitioner was examined as a witness, and without the caution and
warning which it is the duty of the Judge-examinator to give to a
party accused, every time he is brought up for examination; and the
petitioner made a full and true disclosure of all he knew, and gave
every information he possessed, in relation to all the alleged murders
as to which he was examined; and this he did under the assurance of
personal and individual safety: That one of the alleged murders, as to
which the petitioner was so examined, was that of a person described
as James Wilson, commonly known by the name of Daft Jamie; and in
relation to that matter, as well as in relation to all the others, the
petitioner made a full and true statement, and gave every information
he possessed, whether relative to the alleged act of murder itself,
or the means of obtaining or tracing any circumstances of evidence in
relation thereto; and all this he did, relying on the assurance of
personal and individual safety above mentioned, and the compact and
transaction thence arising: That, in consequence of the statement and
information thus elicited from, and procured through the petitioner,
the said William Burke was indicted to stand trial before the High
Court of Justiciary in the month of December last, on a libel setting
forth three charges of murder, as to all of which the petitioner had
been precognosced as aforesaid: That one of these three charges was the
foresaid alleged murder of James Wilson, alias Daft Jamie: That the
petitioner was included in the list of witnesses for the prosecution,
annexed to the said libel; and he was cited to attend as a witness for
the prosecution, in relation to all the charges therein contained. The
libel was found relevant to infer the pains of law; and the Public
Prosecutor having proceeded to lead evidence against William Burke,
and another prisoner, as to one of the charges, (being the murder of
Mary Docherty), the petitioner was called in, sworn, and examined as
a witness for the prosecution. On that occasion the petitioner stated
many things in evidence which he would not have stated, and could not
have been required to state, but for the perfect assurance of personal
security given him by the Public Prosecutor, not only as to the murder
of Mary Docherty, but likewise from any prosecution as to the murders
charged in that indictment, and which was laid down and confirmed
from the Bench on the said trial. It was then stated from the chair
of the Court, as the decided opinion of the whole Bench present, that
the petitioner was fully protected by law against either trial or
punishment for any of the charges contained in that indictment: That
notwithstanding the compact with the Public Prosecutor, under which the
petitioner was induced to make disclosures of great importance to the
public interest, and to the administration of justice, but which were
calculated to involve himself in circumstances of suspicion and hazard,
in which he could not otherwise have been involved; and notwithstanding
the assurance of personal safety held out to the petitioner from
the bench, criminal proceedings have, within these few days, been
instituted against the petitioner, at the instance of 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; and he has been examined before the
Sheriff-Substitute as a party accused of that offence, and is now a
_close prisoner_ in the jail of Edinburgh, committed for further
examination as to that charge of murder: That, under the circumstances
above detailed, the petitioner is advised that the proceedings thus
instituted against him are incompetent, irregular, oppressive, and
illegal; and that the warrant on which he is committed at the instance
of the said Janet Wilson is illegal, and that he is entitled to
immediate liberation: That the petitioner has been informed, that the
said Janet Wilson, alleged mother, and Janet Wilson, alleged sister,
have applied for and obtained the authority of your Lordship to lead
a precognition and examine witnesses as to the petitioner’s alleged
guiltiness of the said charge. And that an _ex parte_ examination
of witnesses is actually going on under the authority and force of your
Lordship’s power and compulsitor, in absence of the petitioner, who
is shut up a _close prisoner_ as aforesaid. The petitioner has
been advised that this proceeding also is incompetent, irregular, and
illegal, and highly oppressive and injurious.
The petitioner prayed the Sheriff, _inter alia_, to recall the
warrant on which the petitioner is committed, and to ordain him to be
set at liberty; also to put a stop to the foresaid precognition or
examination of witnesses, and to ordain the same, in so far as it has
already proceeded, to be delivered to the clerk of Court.
Upon which the Sheriff pronounced an order for service immediately on
Mr. George Monro, solicitor, Supreme Courts, agent for Janet Wilson;
and appoints to-morrow, at two o’clock afternoon, for hearing counsel
or agents for the petitioner, and for Janet Wilson in the Sheriff’s
Office; and, in the mean time, sists farther proceedings in the
precognition at the instance of the said Janet Wilson.
The case was accordingly heard by the Sheriff, when Mr. Jeffrey opposed
the liberation, and Mr. M‘Neill supported the petition. After hearing
counsel,
The SHERIFF said, this is a new point. I have always understood the
right of the private party to be as great as that of the Public
Prosecutor. I do not think the private party is prevented from
investigating by any guarantee given by the Public Prosecutor; and
therefore refuse the petition for Hare, reserving his right to apply
to the Court of Justiciary, for which purpose I shall sist proceedings
for two days. The question is new and delicate, but I see no reason for
stopping proceedings.
Mr. MILLER then stated that the respondent’s agent had got authority
from the Lord Provost to examine Burke, but just as he was about to
enter the prison, a note was put into his hand by the Governor from
the Magistrates, stating that until the judgment of the Sheriff was
known, access could not be given. The urgency of the case, and the
inapplicability of the objections to his examination were represented,
and the Sheriff thought proper to provide for Burke’s examination by a
note to his interlocutor, which was as follows:
“_Edinburgh, 21st January 1829._--The Sheriff having resumed the
consideration of the petition for William Hare, and having heard
counsel for William Hare and the respondents, Janet Wilson, senior and
junior: 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
proceedings _in the precognition before the Sheriff_, at the instance
of the respondents, till Friday night at seven o’clock, in order that
William Hare may have an opportunity of applying to the Court of
Justiciary.”
“_Note._--The application which has been made to the Lord Provost for
liberty to see Burke, by the private prosecutors, is not before us, but
remains to be disposed of by the Lord Provost.”
This judgment of the Sheriff was brought under review of the Court of
Justiciary by a bill of advocation, and of suspension and liberation
for Hare, which came on for discussion before the Court on the 26th of
the same month, when
The LORD JUSTICE CLERK said,--After having heard the counsel, I have
now to state, that the Court have resolved, before giving their
opinions, in the first place to make an order on the Lord Advocate
to make any answer to this bill that he may see necessary. The Court
desire to decide this question in the gravest manner, after seeing
informations; and the counsel will make arrangements for giving them in
as speedily as possible.
Informations were then ordered to be lodged on Saturday following.
In obedience to this order of Court, answers for the Lord Advocate,
and Informations for Hare and the relatives of Wilson were accordingly
lodged; and their Lordships, on the 2d February, proceeded to pronounce
judgment on the very nice and important points of law embraced in the
discussion.
The Lord Advocate’s Answer is as follows:
The Respondent has not failed to observe the guarded terms in which
this order is conceived, calling upon him only to give such information
as he shall deem proper, and thus relieving him from the necessity of
questioning the power, even of this Court, to require, in this shape,
a disclosure of the grounds on which the Public Prosecutor has been
guided in the exercise of his official discretion. Influenced, however,
by those feelings of respect which the respondent has ever endeavoured
to evince towards this High Court, he readily submits the following
statement, in deference to their wishes, on so extraordinary a case.
The murder of Mary Docherty took place on the night of Friday the 31st
October last; and on the evening of the following day, William Burke,
Helen M‘Dougal, William Hare, and Margaret Laird, his wife, were taken
into custody. On Monday the 3d of November, Burke and M‘Dougal were
examined before the Sheriff. These persons, as your Lordships have had
occasion to know, denied all accession to the crime.
On the 4th of November, William Hare and Margaret Laird were examined
by the Sheriff. In the declarations then emitted by them, they both
positively denied all accession to the murder, and stated that Docherty
had not received any violence from any person in their presence.
Hare and his wife were again examined by the Sheriff on the 10th of
November.
They were a _third_ time examined on the 19th of November.
At these examinations they firmly persevered in their former denial.
The precognition having been completed, was laid before the respondent,
in order to be finally disposed of. A month had now elapsed since the
date of the murder; during which period the four prisoners had been
kept separately from each other, but no disclosure had been made by any
of them, either as to the alleged murder, or as to the participation
of any of the persons accused, in offering violence to the deceased.
After repeated and most anxious consideration of this extraordinary
case, it appeared to the respondent that the evidence, including the
examination of medical gentlemen, was defective, both as to the fact of
Docherty having been murdered, and as to who was the perpetrator of the
deed. Conceiving it of the greatest importance, for the satisfaction
and security of the public, that a conviction should be _ensured_, the
respondent did not feel justified in hazarding a trial, on evidence
which appeared to him to be thus defective. He well knew, from long
experience, how scrupulous a Scottish Jury uniformly is, in finding
a verdict of guilty where a capital punishment is to follow; and he
deemed it hopeless to look for a conviction, where the fact of a murder
having been committed was not put beyond the possibility of question.
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. Another consideration of still greater importance
rendered this course indispensable.
Some circumstances about this time transpired, which led the respondent
to dread, that at least one other case of a similar description had
occurred. In such circumstances he felt it to be his imperative
duty, not to rest satisfied without having the matter probed to the
bottom; and that he should, for the sake of the public interest,
have it ascertained what crimes of this revolting description had
really been committed--who were concerned in them--whether the whole
persons engaged in such transactions had been taken into custody, or
if other gangs remained, whose practices might continue to endanger
human life. Compared with such knowledge, even a conviction for the
murder of Docherty appeared immaterial. But such information could
not be obtained by bringing to trial all the four persons accused. A
conviction might lead to their punishment, but it could not secure such
a disclosure.
After deliberately weighing all these matters it appeared to the
respondent then, as it does to him now, that in the exercise of a
sound discretion, and in the performance of his public duty, embracing
equally the interest of the community at large, and of the relatives of
injured parties, he had no choice left but to follow that course he had
adopted.
The only matter for deliberation regarded which of the four should be
selected as witnesses.
M‘Dougal positively refused to give any information.
The choice, therefore, rested between Hare and Burke; and from the
information which the respondent possessed, it appeared to him then, as
it does now, that Burke was the principal party, against whom it was
the respondent’s duty to proceed. Hare was therefore chosen, and his
wife was taken because he could not bear evidence against her.
This course having been resolved upon, an overture was made to Hare
by the authority of the respondent, with the view to his becoming a
witness, and the proposal which was so made to him--(and which did
not proceed from him)--was accepted. He was in consequence brought to
the Sheriff’s office on the 1st of December for examination, when, by
the authority of the respondent, he received an assurance from 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 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 instance, 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.
In consequence of this assurance, Hare emitted a declaration, detailing
the circumstances connected with the murder of Mary Docherty, and with
similar crimes, in which Burke had been engaged. Of these, the murder
of James Wilson, and of Mary Paterson or Mitchell, were two; and it was
from the facts which Hare so detailed, that evidence was obtained from
unexceptionable witnesses, of such a nature as enabled the respondent
to bring forward those two murders as substantive acts in the same
indictment which charged Burke with the murder of Mary Docherty. By
this proceeding, the respondent conceived that he had fully satisfied
not only the ends of public justice, but the rights and feelings of all
those who were connected with the unfortunate individuals thus referred
to.
In the indictment, William Hare and his wife were inserted in the
list of witnesses, along with all those persons whose evidence the
respondent had been able to obtain in consequence of the disclosures
which Hare had made. When the respondent entered the Court on the day
of trial, it was his full intention to examine Hare and his wife as
to each of the three murders set forth in the indictment. How he was
prevented from so doing the Court is already aware. Had Burke been
acquitted of Docherty’s murder, the respondent must, in the discharge
of his duty, have proceeded to try him on the other two charges; and in
proof of both, Hare and his wife must have been examined as witnesses.
As it was, they were both adduced on the trial, and it was from the
information obtained from Hare, on the assurance of immunity, that the
respondent conceives he was enabled to secure a conviction.
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.
In regard to the crimes so disclosed, whether they were included in
the indictment against Burke or not, the respondent having, in the
conscientious discharge of his duty, authorised the assurance to be
given which has now been stated, apprehends that he is legally barred
from prosecuting either of those persons at his instance, and he will
not make any such attempt. He need not add that he should strongly feel
such a proceeding, upon his part, as dishonourable in itself, unworthy
of his office, and highly injurious to the administration of justice.
Having thus, in compliance with the order of your Lordships, given such
information to the Court as he has deemed proper, in regard to the
situation in which the Public Prosecutor stands, in reference to the
murders set forth in the bill of advocation, the respondent has only
to add, that, upon perusing the said bill, he finds no statement in it
which requires any answer on his part.
The information put in for Hare states that the question now to be
resolved is, Whether the informant (Hare) is protected from farther
criminal process in order to punishment, for the murder of James Wilson
_alias_ Daft Jamie? It then narrates the facts and circumstances
which have given rise to the question, and states the legal grounds
on which Hare rests his application to the Court for liberation from
prison, and at great length proceeds to submit the grounds of his plea,
and concludes thus:--
The principles of law, and the direct and recent authority now stated
are sufficient, it is submitted, to govern this case.