CHAPTER XXXI.

_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.