less plain and satisfactory than they are, the informant might, with
great confidence, have rested his case on the principles of “humanity,
justice, and policy,” which are said, on the other side, to be at the
foundation of the rule of law which secures protection to a witness
_socius criminis_, and which, indeed, pervade, and are interwoven
with, every part of the criminal law of Scotland, and may legally be
appealed to in the absence of any other guide. Every thing adverse
to these principles, and certainly every _novelty_ adverse to them,
must be repugnant to the spirit of the law. The proceedings which the
informant now resists are of this character; while the prayer he has
preferred to your Lordships is plainly in unison with those great
principles which are at the foundation of our criminal code, and are
intermingled with the administration of it. Your Lordships have before
you the case of a prisoner who has had the misfortune to be accused
by the Public Prosecutor of acts of murder, of which he may have been
innocent or guilty. Let it be taken either way. Suppose him to be,
as his adversaries describe him, a delinquent polluted by crimes of
the blackest die--one of a fraternity who conspired against the lives
of the lieges, and who carried on the work of blood with a secrecy
and a success which the firmest cannot hear without trembling, or the
hardiest without horror--let the prosecutors describe his character
and his crimes in any language they please--still, in his case, as in
every other, justice must be observed, and the law must be administered
in the spirit of humanity, and with a view to future consequences.
If he has really been a member of such a conspiracy as is alleged,
the greater is the benefit which he has conferred upon the public,
by laying open all the hidden acts and secret ramifications of that
confederacy, and the greater the danger to which, in the event of
trial, he has exposed himself by giving any information or any evidence
whatever in regard to any of its transactions and deeds. But he made
a compact with the representative of the interests of the public;
and he has given to the public, by their representative, the benefit
of all his knowledge of these transactions, in consideration of the
community having released him from all claim for punishment. This
compact having been acted upon--every information which the informant
possessed having been drawn from him--he having been publicly called
upon to appear as a witness in regard to the very murder now under
consideration--he having been placed in the witness-box, and having
publicly given evidence in relation to a part of those proceedings to
which he is said to have been accessary, and having thereby publicly
connected himself with the chief actor, whose conviction he ensured;
and having exposed the system, and laid open the sources of evidence,
and thus furnished the means of bringing himself to trial, if that
were competent--borne down with difficulties and surrounded by perils,
by which he would not otherwise have been environed--the strength of
his defence impaired or taken away--is it consistent with humanity, or
justice, or policy, that two individual members of the community, who
all the while lay by without giving notice of such intention, should
now come forward, to violate public faith, and to turn the information
given for the benefit of the public against the life of him who gave
it, in reliance on the compact he had entered into with the Public
Prosecutor? Every principle of humanity, of justice, and of policy,
is opposed to such a proceeding. There is no precedent--there is no
authority for such a proceeding. The informant acted in the belief
that he had secured his protection. The Public Prosecutor acted in the
belief that he was entitled to secure, and had secured to him, that
protection, and had done so for the ultimate benefit of the public, in
securing the conviction and punishment of an offender. If both parties
erred in their notions of the law, they erred in common with a quorum
of your Lordships’ number, discharging the most important duty of the
Supreme Criminal Court. If the law is now, for the first time, to be
declared against that understanding and opinion, let the operation of
this new declaration be confined to _future_ cases--but let not this
new state of things--this alteration of a deliberate judgment of the
Supreme Court, operate to the prejudice and injury of the informant,
when matters are, in respect to him, no longer entire. To do otherwise
would be productive of no good object. The ends of justice would not be
thereby promoted. The _public faith would be broken_, and, above all,
the informant _could not now have a fair trial_. These considerations
give him a sufficient claim to the interposition of your Lordships to
prevent further proceedings against him.
The Information given in for the relatives of James Wilson is also of
great length. It is there stated--
1. That the right of the private party to prosecute is not controllable
by the Public Prosecutor, and is independent of him.
The prosecutors state this as a fundamental and constitutional
principle in the criminal jurisprudence of Scotland. It is not an
antiquated right, as stated by the counsel for the prisoner, but is
recognised by the latest authorities, and is consistent with the most
fundamental principles of our practice. There can therefore be no
question as to the title of the prosecutors. They state themselves to
be “the nearest kinsmen of the deceased, demanding the vengeance of the
law on the body of the culprit if he is found to be a murderer.”
Legally speaking, there are only two situations in which a prisoner can
actually plead indemnity in bar of trial, viz. Previous acquittal by a
Jury, or remission by the Crown. These are the two constitutional modes
of freeing an accused party from the consequences of alleged crime, and
either of them is an effectual bar to trial, whether at the instance
of the Public Prosecutor or of the private party. But the point which
the prosecutors are anxious to establish is this, 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 his
right of calling upon him 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 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. The assertion
of the prosecutors, however is, that their legal right to investigate
the circumstances attending the death of their near relation, and
to indict the accused party, if they shall find sufficient ground to
do so, cannot be interfered with by the proceedings of the Public
Prosecutor, in circumstances over which they have no control. They say,
that this doctrine must be held, because it flows as a necessary and
irrefragable consequence from the constitutional right of prosecution,
which has been proved to exist. If the right be in the private party,
how can it be wrested from them, by the communications which pass
between the criminal and a third party over whom they have no control,
but to whom, on the other hand, the law gives no power of depriving
them of that right of demanding justice and vengeance which it has
vested in them?
In point of form, indeed, it is required that the Lord Advocate
should grant his concourse to a prosecution before the High Court
of Justiciary. But this form is established, not for the purpose of
showing that his permission to prosecute is necessary, but for the
purpose of showing that there is a public injury to be vindicated as
well as a private party to be satisfied. Accordingly, the Lord Advocate
has no right to refuse his concourse. If he should refuse, he can be
compelled to grant it, for this very reason, that it is not _in
arbitrio_ of him to deprive the private party of his legal right.
The law was so stated by Lord Alemore, on the complaint of Sir John
Gordon against his Majesty’s Advocate, June the 21st 1766, and the same
doctrine is laid down by our authorities.--[Here quotations in support
of the above doctrine are introduced from Burnet, p. 300; and from
Hume, vol. ii. p. 123.]
The Prosecutors pleaded, II. That the _socius criminis_ is only
protected by the indulgence of the Court with regard to the particular
crime as to which he gives evidence.
Formerly a _socius criminis_ was not received as an evidence in
the criminal Courts of this country, because of the interest which
he was supposed to have in establishing the guilt of the individual
accused, and thus freeing himself from the imputation of the crime;
and the practice which has lately crept in of affording an indemnity
to the witness, for the crime as to which he has given evidence, does
not appear to have been recognised until subsequent to the case of
Jameson in 1770. In the case, accordingly, of Macdonald and Jameson
in August 1770, when the objection of a witness having been _socius
criminis_ was fully debated, the Prosecutor in answer did not say
that the witness, by being examined, would thereby be exempted from
prosecution, but only that he might hope for impunity; while the usage,
at that time, of granting special pardon, to accomplices for enabling
them to give evidence, confirms what has been stated. At what period a
different rule came to prevail does not appear. Baron Hume conceives
that the practice may have commenced from the rule introduced by 21st
Geo. II. cap. 25, as to a particular offence.
The doctrine maintained on the part of the prisoner is, that he is
relieved, not only from the consequences attaching to his participation
in the crime as to which he has been examined, but also as to others,
in regard to which the same parties may have been implicated, but which
have not been the subject of trial. This argument extends the doctrine
of indemnity much farther than it has yet been carried. For the
question underwent grave discussion, and the practice, as then followed
by Public Prosecutors and recognised by the Bench, is distinctly
stated by the Learned Judges in the case of Downie, who was tried
for high treason in the year 1794. The discussion arose upon certain
questions being put to a witness of the name of Aitcheson, tending
to criminate himself. The danger had been pointed out by the Counsel
for the prisoner, to which the course of the examination might lead,
as the witness might confess that which was sufficient to convict him
of the crime of treason. The doctrine laid down by the whole of these
Learned Judges is this, that for what the individual told the Court as
a witness, he could not afterwards be questioned; but they distinctly
state, that if the witness, after being put into the box, refuses to
answer, he would not have been entitled to any protection.
[The information then goes on to narrate the trial of Burke, the
circumstances of which are already well known: after which it proceeds
to the examination of the suspender, Hare, as a witness on the trial.]
After administering the oath to the prisoner, who was brought forward
as a witness upon the trial alluded to, Lord Meadowbank stated to him,
“Now we observe that you are at present a prisoner in the Tolbooth
of Edinburgh, and from what we know, the Court understands that you
must have had some concern in the transaction now under investigation.
It is therefore my duty to inform you, that whatever share you might
have had in that transaction, if you speak the truth, you can never
afterwards be questioned in a Court of Law.” Lord Justice Clerk--“You
will understand, that you are called here as a witness regarding the
death of an elderly woman of the name of Campbell or M‘Gonegal.”
“You understand, that it is only with regard to her that you are now
to speak?” To this question, the witness replied by asking, “T’ould
woman, Sir?” Lord Justice Clerk, “Yes.” But what is perhaps of still
greater importance, it will appear that he was not permitted to
answer questions which might otherwise have been of importance to the
individual then upon trial, upon the ground that he would not be
protected upon so doing.
From all which these facts are indisputably established, viz. 1st, That
the witness was examined as to no other murder than that of Docherty
or Campbell. And 2dly, That he was distinctly warned that he was not
bound to answer any question with regard to the other murders contained
in the indictment, because as to any other murder except that under
investigation, he was not protected by the Court.
The present question therefore stands thus: Hitherto a witness has only
been protected from trial for the particular crime as to which he has
given evidence. The prisoner has given none as to the crime of which he
is now accused, and therefore he has not been placed in that situation
which entitles him to the protection of the Court.
* * * * *
When the Court met on 2d February, the Bill of Advocation for Hare
against the nearest of kin of James Wilson was called.
Mr. Jeffrey, addressing the Court, said, their Lordships would not
suppose that he had any notion of resuming the argument, but the
case was brought to such a point that he might be indulged in making
one remark. It was maintained on the part of the suspender, that the
Public Prosecutor was entitled to make a compact, to which compact
their Lordships were bound to give effect; that their Lordships had
no discretion, but that it rested entirely with the Lord Advocate to
enter into any compact, and to extend immunity to any number of cases
without the control of the Judge; in short, that the Lord Advocate
possessed the uncontrolled power of exercising the Royal Prerogative;
and this he might do, not merely with respect to the particular crime
as to which a _socius criminis_ was to be used as a witness, but
might extend it to all other crimes of which he may have been guilty.
Whenever the Lord Advocate stipulated an immunity, it seemed to be
maintained that a sufferer by housebreaking, fire-raising, or other
crimes, was to be deprived of his right as a private party to prosecute
the guilty perpetrator of the wrong, and that the Lord Advocate had
a power to enter into a compact by which he could grant immunity for
offences past and future, known or unknown. Such a prerogative would
be investing the Public Prosecutor with a power of pardon, which only
belonged to the Crown, and this too without a tittle of authority, and
totally different from judicial authority, amounting to an assumption
of the prerogatives of Parliament.
Mr. M‘Neill stated that he had no observations to make.
Lord Gillies expressed his thanks to the Learned Gentlemen who had
argued this case. The papers were drawn with much care, and with an
ability and promptness which did them the highest honour. His Lordship
then alluded to the form in which the case came before the Court, and
the prayer of the Bill, and stated the question to be, Whether they
were to affirm the judgment of the Sheriff and refuse the prayer of
the petition to that Judge for liberation, or to grant it and liberate
the prisoner Hare? His Lordship considered the question of law to be
an undecided and open question. The facts which gave rise to it were
but too well known. They were of the most atrocious character--murders
committed, not from the ordinary motive of revenge, or of robbery,
or to escape from the punishment of other offences,--but its object
was indiscriminate murder for dissection, and cold-blooded traffic,
rendering the crime profitable in proportion to the number of its
victims. These atrocities seem to have attracted the notice of the
Lord Advocate, whose conduct, in all these proceedings, he considered
highly meritorious. We were all much indebted to that high officer
for the wisdom and prudence with which he had conducted the business.
There can be no doubt that the same feelings and wishes existed in
his Lordship’s mind as in that of every other man; and his Lordship
thought that if he could obtain the punishment of two, or even one of
the murderers, a great service would be rendered to the public. The
result too fully justified his Lordship’s measures. It became necessary
to collect evidence of these crimes, and a body of it had been
collected--such as could not, perhaps, be obtained in any other part
of the world; and what would the consequences have been if such crimes
had escaped altogether without punishment? It was for this purpose that
he caused the proposition to be made to Hare, which was stated in his
Lordship’s answer. And Lord Gillies expressed his entire approbation
of his Lordship’s conduct. The Lord Advocate gave his assurance of
pardon. That assurance was properly given. He had a power to promise
remission, and Hare was entitled to ask and bargain for it; and no man
can look into the case without being satisfied that Hare was entitled
to a remission for the important information which he had afforded to
the Public Prosecutor. On this very information the indictment against
Burke was raised, accusing him of three different acts of murder.
Annexed to that indictment Hare’s name was in the list of witnesses,
and he might have been examined on any one or all of the three charges.
The Court pronounced an interlocutor, limiting the trial to one of
these--the murder of Docherty. The only information Lord Gillies had
as to the trial was derived from the papers, and these referred to
opinions delivered at the trial, on which he could not venture to offer
an opinion, as he was not present. But in the information for Hare,
there was an explanation which was not satisfactory, of the opinions
which were said to be contradictory. Those opinions must have had an
effect upon the witness Hare in giving his evidence, and persons in
his situation were not to be supposed qualified to judge of the law.
The impressions, therefore, made on Hare by those opinions were more
important than the abstract law, as they must have regulated him in
giving his testimony, in as far as his belief that he was safe was
concerned. He would, therefore, without reference to what had passed
at the trial, express his own opinion whether or not the Court was
entitled and empowered by law to quash the proceedings in consequence
of what took place at the examination on the trial? His Lordship held
the right of a private party to prosecute for murder undoubted. The
information for Hare says it is an antiquated privilege. It was not
antiquated. He had himself been counsel in a case from Aberdeen; and
there were many cases of trial for forgery at the instance of Banks.
In Captain Macdonoch’s case from Aberdeen there was no objection
hinted at, either by counsel or the bench. It was a sacred right, as
much so as if exercised at the instance of the Lord Advocate. There
are not many cases of trial for assythment; and none are noticed in
the informations. It is due in three contingencies--when remission is
before trial--when the accused is tried by a Court Martial--and when
he is fugitate or outlawed. His Lordship would not say if in any other
case assythment might be found due. What prevents the relatives of the
poor lad Wilson from sueing? The same principles apply in this case
as if the person murdered had been the highest in the land. Are his
relatives to be controlled by the Public Prosecutor? Though Hare was
admitted as witness on the trial for Docherty’s murder, and promised
an immunity for his participation in it, the Lord Advocate can neither
defeat nor control the right of prosecution in Wilson’s relatives,
nor unless in a case where the witness promised an immunity has been
actually examined and borne testimony. If a prosecution at the instance
of the Public Prosecutor for murder is followed by death, that is
conclusive, and shuts out process at the instance of a private party.
If there is a remission, assythment is competent; and if there be an
acquittal, there can be no process. There is nothing of this kind in
the present case. His Lordship stated that the avowed object was to
bring Hare to trial--that the right to do so was clear, and he did not
know if the Court had any legal right to prevent it or to defeat it.
The practical result was important, as Hare would not suffer death. He
reprobated the plea that this case should be decided on principles of
humanity, justice, and policy. It was not what judges held to be such
principles--but what the law lays down that is to regulate them. The
true question is, Whether the Court has power to prevent the trial; and
he was satisfied that neither the law nor the constitution authorised
it. He went into a view of the history of the law upon the subject of
admitting _socii criminis_, and referred to the Act 21, Geo. II. c. 31,
as for the first time introducing what was previously unknown in our
law. He considered that act as a resting place in the progress of the
law upon the subject--and the only satisfactory one--and it was given
under limitations. It was afterwards extended, and he was not sure if
it was well and wisely done. His Lordship then referred to cases since
that time, and, after other illustrations, concluded by expressing his
opinion that the bill should be refused, and the investigations allowed
to proceed.