conducted. He did not consider it necessary to take notice of
the proceedings at examination on the trial, of which there is
no authenticated record. The question was, whether they were to
stop proceedings or not--and he could not concur in Lord Gillies’s
views. As there were two ways to the same object, and as he had the
consolation to think that the practical result would be the same as
to the individual concerned, he should have been happy if he could
have concurred; but there was a principle involved which prevented him
from doing so. His Lordship took a view of the practice with regard to
_socius criminis_ in reference to the Public Prosecutor and to private
parties; and stated that the old law of this country excluded them. The
law of England admitted them from the first; but more recently our late
decisions and practice admitted them in every case. Such a system could
only be introduced gradually. His Lordship differed from Lord Gillies
in his view of the act Geo. II. c. 34, which introduced a particular
rule of law for a special case. It was not a general act, and laid down
no general rule, but rather an exception. The 20th section enacted a
rule different from that in 31, and the act could not be considered as
a resting place in the history of the law as to _socii_. His Lordship
then went into a review of the cases applicable to this point, and
the principle laid down in the case of Smith and Brodie had now been
uniformly acted upon for a period of upwards of forty years. The Lord
Advocate’s statement was highly satisfactory, and every one must agree
in approving of the whole course of his proceedings. His Lordship could
not, after procuring all the information which Hare afforded on the
faith of the promised immunity, turn round and proceed against him,
because he had not been examined on the two cases not brought to trial.
He next considered the right of the private party, and held that if it
was competent to proceed against Hare in the case of Wilson, it was
equally competent to proceed against him in the case of Docherty, at
the instance of private parties; yet it is admitted, that in the case
of Docherty the right of the private party is controlled, and must be
controlled. After a variety of other illustrations, which we regret our
limits will not allow us to repeat, in support of these doctrines, Lord
Pitmilly concluded by saying, that the purity and integrity of the law
and the faith of the Public Prosecutor, which, for the public good,
must not be broken, required that the liberation of the prisoner should
be granted, and the proceedings against him stopped. He felt most
intensely for the relatives of James Wilson--he sympathised with the
public in their feelings of detestation upon the subject of the murders
which had led to these discussions--but he felt more for the honour of
the country, which was bound to vindicate the faith of a great public
officer acting for the public welfare.
Lord MEADOWBANK considered this a very important case as regarded
the consistency of the Court, and also as it affects the First Law
Officer of the Crown--and if he were under the necessity of refusing to
discharge the warrant of commitment against Hare, it would be to him a
subject of humiliation and endless regret. His Lordship differed from
his brethren, who considered the admissibility of a _socius criminis_
as of modern introduction into the law of Scotland. He referred to the
authority of Lord Hailes, and the trials of Lord Morton, and the Gowrie
conspirators, to show that _socii_ were received as witnesses of old,
and that remissions had been given for the purpose of obtaining their
evidence. His Lordship went into an eloquent and learned illustration
of the antiquities of our criminal law in the days of the Justiciar,
and previous to the time that the Lord Advocate was invested with
his present power, and maintained that at no period in the law of
Scotland has a private prosecutor ever enjoyed the power of sueing a
criminal without being subject to control by the Public Prosecutor and
the Court; and he held that when the king created the Lord Advocate
Public Prosecutor, he also must be held to have invested him with all
the powers necessary for explicating the duties of his office. Among
these the power of remission of offences for the purpose of obtaining
information essential to the public welfare must have been transferred.
There never had been a prosecution of a _socius criminis_ at any
period in the history of the Court when he had obtained the promise of
indemnity from the Lord Advocate, and given information and evidence.
His Lordship was therefore for quashing the proceedings.
Lord MACKENZIE said, although he had been anticipated in what he had
to offer on this subject, he considered it his duty to express his
opinion. As to the matter of form, he was of opinion that Hare was
competently before the Court--and it was necessary to decide whether
he had a sufficient protection by the compact with the Lord Advocate
against farther proceedings. He held that the calling of a witness
who was a _socius_ gives an implied protection, and this he held to
be fixed by the cases of Brodie and Smith, followed by all the cases
ever since. He considered that Hare had this protection both for the
case of Docherty and Wilson. The course of the Lord Advocate had been
most wise and expedient; and this wretched man, Hare, had acquired an
immunity in all the three cases, in consequence of the promise held out
to him. Considering the evidence adduced on the trial of Burke, it was
impossible to contemplate Hare’s escape without pain; but he must not
die by a perversion of the law, which would shake all confidence in the
fair and steady administration of justice.
Lord ALLOWAY concurred in the views of Lord Gillies, and expressed his
opinion at considerable length. He applauded the Lord Advocate, who
had acted in a manner worthy of himself, and of the high office which
he held. His conduct had been distinguished for wisdom and firmness,
and he had not a doubt that the Lord Advocate was bound to go to the
Crown for a remission to Hare. The Crown, he held, was the only source
of mercy. His Lordship could not approve of any authorities drawn
from the practice of periods in our history which were a disgrace
and abomination--and he could not think of resting any of our law
on precedents drawn from the trials of Lord Morton and the Gowrie
conspirators. He heard that the trial on which Hare was examined was
only on the case of Docherty, not of Wilson; and if it was not the
case of Wilson, his examination in the other case afforded him no
protection. All other cases except Docherty’s were excluded, and there
was no other before the Jury. The Statute of Geo. II. was _in viridi
observantia_. His Lordship was for refusing the Bill.
The LORD JUSTICE CLERK said, that considering this case as one of very
great importance, he had prepared his opinion upon it with great care
and anxiety, and as he had dictated it, he would now read it without
any apology. After some preliminary remarks, that opinion was expressed
in the following terms:--“From the statement of the Lord Advocate, it
is placed beyond all doubt, that, with a view to the public interest
alone, he resorted to the course therein detailed, and considering the
atrocious, extraordinary, and unexampled nature of the crimes to which
his attention had been called, the infinite importance of avoiding
the risk of the escape from punishment of all who _then_ appeared
implicated in these crimes, and the immense advantage of a public
example from a conviction, he did exercise a wise and sound discretion
in betaking himself to the evidence of Hare and his wife, and giving
the assurance stated in his answers. It moreover appears to me, that
the propriety and wisdom of the conduct of the Public Prosecutor in
regard to the important and delicate duty he had to perform, have been
most fully evinced by the result of the trial and conviction of William
Burke. If instead of following the course he did, he had indicted
Hare and his wife along with the other prisoners for the murder of
Docherty, (the Public Prosecutor having _then_, according to his own
statement, no sufficient information regarding the murders of Wilson
and Paterson) and had failed to obtain a verdict, against the certainty
of which not being the case no one will venture to give an opinion;
it may be considered what would then have been the feeling of the
public in regard to such a proceeding. Keeping the above circumstances
in view, and attending particularly to the nature and structure of
the indictment exhibited against Burke and M‘Dougal, charging the
single crime of murder, in the three specific acts of Mary Paterson,
James Wilson, and Mrs. Docherty or Campbell, all alleged to have been
perpetrated in the same way and with the same _intent_, viz. for the
sale of the bodies for dissection,--in the list of witnesses subjoined
to which Hare and his wife were included--the interlocutor of the Court
finding the _whole_ indictment relevant to infer the pains of law,
but upon the motion of the prisoners, allowing the separation of the
charges, and the trial then to proceed as to the murder of Docherty
alone--the subsequent direction, at the desire of the prisoners,
given to Hare, to confine his statement to the case of Docherty--the
examination which he then underwent, both for the prosecution and the
prisoners, is to be carefully attended to.”
[His Lordship then took a most comprehensive and detailed view of the
law applicable to the case, which our limits will not permit us to give
at length, but the conclusion of it is so important that we must give
it to the public, as it affords explanations, which it is desirable
that every individual should be acquainted with in a case that has
excited so deep an interest.]
“If then, the prisoner Hare is legally exempted from all prosecution
at the instance of the Public Prosecutor for any accession he may have
had to the three acts of murder charged in the indictment against
Burke and M‘Dougal, there seems no ground in law for maintaining
that he may still be prosecuted at the instance of the relations of
either of the three parties alleged to have been murdered. As to the
_speciality_ attempted to be founded on as to his not having been
examined with regard to the actual murder of James Wilson, it has
already been sufficiently adverted to, in reference to the supposition
of the Lord Advocate attempting to prosecute for that offence. The
nature of the indictment--the interlocutor finding the whole charges
relevant--and the almost identity of the modes of slaughter and intent
with which the three acts were perpetrated, and the general nature of
Hare’s evidence--have already been pointed out as demonstrating that
without a total departure from the fairness and justness that must
ever characterize judicial procedure, it is impossible to deny that
Hare did mix himself up with matter that had the closest affinity to
the other acts, the trial of which did not proceed at the time. It
is farther to be recollected that, in the list of witnesses, there
stand included various persons connected with the death of Wilson, the
discovery of whom, we have the assurance of the Public Prosecutor,
was made through the information of Hare alone, who did also make
such disclosures as led to the framing of that and the other charge
in the indictment. It is utterly impossible, therefore, to view Hare
as a person who had not spoken out or given _any evidence_, relative
to the crime for which he is now attempted to be tried. He can by no
possibility be replaced in the situation in which he formerly stood.
_Things are no longer entire with regard to him_, as has been justly
said. The public has derived the benefit that was expected from his
evidence, by the conviction and execution of this guilty associate;
and _the public faith that was pledged to him in the face of the
country_, and confirmed by the intervention of the authority of this
Court _must be preserved inviolate_. Such is the deliberate opinion
that I have formed, after the most careful and anxious consideration
of all that has been urged, both in speaking and in writing, upon
this important question, and a careful review of the authorities that
appeared to bear upon it. _The same opinion I formerly delivered in
a most important stage of the trial of Burke and M‘Dougal, with the
concurrence of my brothers who were then sitting with me._ I am free
however to admit, that notwithstanding this circumstance, it was my
bounden duty to re-consider that opinion with all due attention to
the able and elaborate argument that was offered against it by the
respondents’ counsel. I cannot, however, agree with them that the
opinion to which they objected, and were well entitled to object, was
one of an _obiter_, or passing nature, and not to be considered of
importance at this stage of the trial when it was pronounced. It was,
on the contrary, delivered to the Jury, as the opinion of the Court,
upon an objection urged in point of law, in the most earnest manner
by the counsel for the prisoners, and which, if well-founded, must
have gone to the destruction of the credit of the accomplices who
had given evidence. There can be no part of the duty of the Judge who
presides at a criminal trial more sacred than that of expounding the
law to a Jury, in reference to such an objection; and it is necessary,
therefore, that the opinion of the Court should be given in the most
unequivocal terms. It was accordingly given to the purport and effect
that is stated in the printed trial. As no man can say what effect that
statement of the law had upon the minds of the Jury,--as it may in fact
have led them to give such credit to Hare and his wife, as actually
brought about their verdict against Burke, and consequently that his
fate had been decided by it, I have no hesitation in declaring, that if
I had, upon reflection, been convinced that I had committed an error,
and delivered an erroneous opinion in law to the Jury, I should have
felt it to be my bounden duty, without the least regard to popular
feeling or clamour, to have made such a representation to the Secretary
of State, as might have led to an alteration of the sentence of the law
upon Burke. The opinion, however, which I did deliver, in my charge to
the Jury, so far from being shaken, has been strengthened and confirmed
by all that I have since heard or read upon the subject. I shall only
add, that if the objection to the credit of the accomplices, upon the
ground of their being actually liable to be tried for the two acts of
murder contained in the indictment, the trial of which had that day
merely been postponed, had been taken, as it ought to have been, when
Hare and his wife were offered as witnesses, the point would have been
fully argued, and solemnly determined by the Court. But as it was
withheld till the addresses to the Jury, every one knows that it could
not otherwise have been disposed of than by delivering an opinion upon
it to the Jury. I have but one word more to add with regard to the
supposed inconsistency between the opinions expressed by myself and my
brothers, in regard to a question proposed to be put to Hare, and that
which I delivered to the Jury. I must beg leave, however, to say, that
when the real _res gestae_ are attended to, no such inconsistency can
be found. I find from my notes, that the argument of the counsel “was
raised upon the question, _if Hare ever was concerned in the commission
of other murders_?” Upon the competency of that question, the opinions
of the Court were delivered, and those opinions must necessarily be
viewed as having reference to the question actually proposed, and the
injunction which the pannels’ own counsel had themselves desired should
be given to Hare, to confine himself to the case of Docherty. And I
well recollect of putting it to the counsel, that the witness must be
fairly dealt with, and of having stated, that if asked in regard to
the cases of Wilson and Paterson, his whole statement must be given,
whatever the consequences might be. When the examination was resumed,
I do not find that _the question is put in the precise terms on which
it had been argued_; and it was only at a later period that Hare was
asked, _if there was a murder committed in his house in October last_?
but as to which the opinion of the Court was not delivered. Whatever
shade of difference may therefore appear in the opinions regarding
these questions, and that which was advisedly delivered in the charge
to the Jury, and I am by no means surprised it has so struck some of
your Lordships, must fairly be ascribed, either to the imperfections
of the report of the trial, or to the course of proceeding that was
adopted at the suggestion of the counsel for the prisoners. I am, upon
the whole, of opinion, that the prayer of the prisoner’s bill ought to
be granted, and that it would be directly contrary to the established
practice of this Court, and the principles of our law, merely to
suspend the proceedings against him, in order that a pardon should be
obtained for his concern in the offences charged in the indictment,
upon which he was examined as a witness. Such would be the course
adopted by the judges of England; but, respecting as I do, that law and
its institutions, I do not, as a Scottish judge, feel myself warranted
to follow it on the present occasion. My opinion is, that it would be
equally incompetent to the first officer of the crown, as it is to the
private parties now before us, to institute any criminal procedure
against Hare, steeped in guilt although he be, in reference to the acts
contained in the indictment against Burke, and I can allow that opinion
in no degree to be influenced, _civium ardore prava jubentium_.”
An interlocutor was then pronounced, passing the bill of advocation,
(thereby reversing the decision of the Sheriff), ordaining the
Magistrates and keepers of the jail of Edinburgh to liberate the
prisoner Hare from confinement, quashing the proceedings which had been
instituted with a view to bring Hare to trial at the instance of James
Wilson’s nearest of kin, and ordaining the precognitions already taken
for that purpose to be cancelled.
Thus, in as far as Hare is concerned, these prosecutions connected
with the late murders are closed; and whatever may be the opinions
entertained out of doors with respect to the conflicting views of
the Judges upon the law of the case, it must be satisfactory to the
country to find, that although differing materially on many points
in the discussion, the Court were unanimous in approving most warmly
and decidedly of the Lord Advocate’s proceedings. And, however deeply
every virtuous man may lament that a wretch, who is so covered over
with crimes, should escape the hands of justice, this feeling ought
to be controlled by the recollection that even the guilty must not
suffer by stretches of the law, which might also be perverted in other
cases, to the ruin of the innocent--that, without the information
which Hare has afforded, not even one of the horrid crew of murderers
would have been convicted, or the means afforded of checking a hideous
system of murder--and that, by the course which the Public Prosecutor
has pursued, in giving one man immunity from punishment for such
information, a great benefit has been conferred upon society, for
which his Lordship is entitled to the gratitude of his country. As
to Hare himself, he is morally, and in the eyes of all mankind, a
self-convicted murderer. He is liberated for the present from the jail
and the gibbet--but he goes forth an outcast on the world, with a brand
on his forehead, that can never be effaced. Wherever his name is heard
by him, he will hear it amidst the execrations of mankind. His doom
hereafter it is not for man to anticipate.
The delivery of their Lordships’ opinions in this interesting case
occupied the Court upwards of seven hours. The Court-room was crowded
during the whole time.
In the former part of this account, we announced that some particulars
of the lives of each of the prominent actors in the black dramas should
be given. The press of matter that has since occurred, has hitherto
prevented this, but we now proceed to redeem our pledge, in so far as
one of them is concerned, by briefly mentioning such things as have
come to our knowledge respecting the notorious
WILLIAM HARE.
This villain’s character apparently has presented few traits which
could interest any one previous to his great crimes. It may be judged
of by picturing the _beau ideal_ of a drunken, ferocious, and stupid
profligate. What few incidents have occurred in his miserable life, if
such there were, would also have been lost, by the insuperable aversion
every one previously acquainted with him seems to have in avowing even
a casual connection. While the acquaintance of Burke has been claimed
by many, and his habits and manners freely dwelt upon, all have shrunk
from an avowal of such an intimacy with his fellow monster, as would
justify them in depicting his character. After it was discovered that
Burke had, before his crimes, displayed some of the attributes of
humanity, and had borne a very different character from what his real
one turned out to be, it was assumed, that he had been made a tool of
by Hare, and that he was the tempter and arch-fiend who had lured him
on to his destruction, and instructed him in the hellish arts; and
Burke’s language favoured the idea. But Hare has since exhibited, along
with his hardened indifference and callousness, such a mental apathy,
such gross and unconceivable stolidity in his conduct and estimation of
his crimes, as to force us to the conclusion, that, however inclined
he might be to reach the climax of atrocity, he was not capable of
leading or directing any one, far less Burke, or initiating him in the
barbarous trade.
In corroboration of this we may mention, that a celebrated literary
professor of our University, it is understood, visited both of the
murderers when in jail, and gave, as his opinion, that in comparison
with Burke, Hare was a perfect fool, and that he was convinced that he
could never be his instructor.
He describes Burke to have been a very intelligent man, and one whose
conversation would give a great idea of candour and open-heartedness,
though his conduct displayed nothing like remorse or contrition. On
the contrary, he seemed happy that the Professor’s knowledge of
Innerleithen enabled him to talk of the kindness and charity towards
him of several individuals there. He talked of them so as to lead
the learned gentleman to remark, that “he understood perfectly well
what charity was though he did not practise it.” Hare’s behaviour
and conversation were perfectly different. He seemed not to possess
the slightest moral perception of the enormity of his conduct, and
described his guilty compeer as one of the best men in the world, who
would part any thing he had in the world with a beggar. His aspect
did not belie him; well might Mr. Cockburn describe him as a “squalid
wretch;” we scarcely ever saw a more disgusting specimen of human
nature, and both in his physical and moral conformation the brute
seemed to vie with the man for the ascendency. A continual idiotic
though diabolical laugh appeared to be upon his countenance, such as
might be imagined to characterize the lowest grade of fiends.
He is a native of Ireland, and was born in the neighbourhood of
Londonderry, and after working at country work there he came to
Scotland and engaged as a common labourer upon the Union Canal, and for
some time assisted in unloading Mr. Dawson’s coal-boats. There he fell
in with Log the former husband of his notorious wife, and subsequently
came to lodge in his house. After the work at the canal was finished
he took up the trade of a travelling huxter, and with an old horse and
cart went about the country selling fish, and sometimes crockery-ware,
which he gave in exchange for old iron, &c. and sold it again to the
dealers in Edinburgh. He used also to go about with a _hurley_ selling
articles. Before Log’s death he had left his house in Tanner’s Close,
but returned again after this event, and assumed the privileges of the
master of the house, although Mrs. Log never was called by his name. He
then became a perfect pest to the inhabitants of the West Port, from
his debauched dissolute habits and reckless brutality. His conduct
would justify the oft-repeated allegation of an Irishman’s addiction
to fighting, as he was continually in a brawl. He never failed to
pick a quarrel upon any opportunity that offered, and an individual
looking at him was sufficient apology for a challenge to the combat.
Though a sorry pugilist, he was never tired until fairly disabled; and
the many drubbings he received, could not cure him of his pugnacious
propensities. If no adversary presented himself out of doors, he was
always sure of one within, and his wife and he were perpetually engaged
in conflicts. Though almost always intoxicated herself, his drunkenness
incited frequent attacks from her. Any of the neighbours would desire
a boy “to go and tell _Lucky Log_ that _Willie Hare_ was on the street
drunk,” and a fight immediately ensued upon their rencontre.
In our account of the murders, we have already noticed the share that
he had in them, as well as his conduct upon the trial and immediately
subsequent to it, and it is unnecessary to repeat it here; we will
confine ourselves therefore, to some farther notice of his deportment
while in jail, and his adventures after liberation. At first, after
Burke’s conviction, he imagined that his detention was for the purpose
of protecting him, and was very easy and not at all troubled with
compunction; but after his confinement was extended to a period far
beyond what was necessary for immediate protection, he began to become
uneasy, which was increased when inquiries about the murders were
renewed. His behaviour indicated most unbecoming levity, as well as
imbecility. He apparently was incapable of comprehending any thing of
moral rectitude.
On the last Sabbath of Burke’s life, and when his own case was pending
in the courts, he is said to have displayed the only symptoms of
feeling that he had suffered to escape him. It was during the discourse
of the Rev. Mr. Porteous, which, contrary to his usual custom, he
listened attentively to, and appeared affected when pointed allusion
was made to his compeer.