The Prosecution against Hare.
The public had got only an instalment; and the fingering of the money produced only desire for more, to make up the debt to justice. Whatever might become of the women, Hare must be hanged, dissected, and exhibited in the same way as Burke, otherwise the peace of the city would be again in jeopardy. He was the greater criminal of the two, and the people had no moral vision to comprehend how the Lord Advocate could bargain with, and feel himself bound to keep honour with, one who, having lost the form and features of the sacred “image,” was beyond the pale of humanity. You don’t think of the moral obligation to refrain from killing a tiger merely because he left in your way another cruel animal, which, for want of a lamb eaten by the more rapacious, you found it convenient to dine off.
After his examination, and when the officers were removing Hare from the court-house to the Calton Jail, they were struck with dismay to find that he had been seized with a fit of glee, which, for want of an epithet derived from humanity, we may term diabolical; but the officers were simple, and so was he: they should have known the man, and he knew himself—a creature in whom there being no good to produce the variety which constitutes character, there could be nothing but pure and unmixed evil. If the devil is not a simpleton,—father of lies and master of devices as he is,—it is just because having once known the good he could hate it. Hare never knew even that, and could not be said to hate what he could not understand. Yet he laughed, not heartily, that would be a misnomer, but hepatically, from the liver, because he fancied that he had escaped from justice at the expense of the life of his accomplice. The public, much as they cried for his blood, were simple too, in so far as they believed that while in jail he shunned the public gaze, and muffled himself up in the bed-clothes when visited by the authorities; whereas the man, instead of thinking he had done anything shameful or even wrong, was rather proud of his ingenuity, not only amusing himself in the public ground attached to the ward, but exhibiting rather satisfaction at being looked at.[19] Nor, while in the very height of his effrontery, did he construe the marked dislike of the prisoners, every one of whom shrank from his touch or even approach, into anything short of spite because he was now free—being only there as under the protection of the authorities—and his companions poor bond devils. So far we may believe; but there might have been a small tax on the credulity of the time, when it was believed that he construed in the same way the conduct of those companions when, upon the occasion of there being more onlookers from without than the shame of the jail-birds relished, they were in the habit of hitching him forward as a great spectacle, by the attraction of whom their merely comparative merits might be overlooked.
By and by, as the vengeful feeling of the public against the man increased, and nothing for a time was heard but the stifled groans for the second victim, it came out that the public prosecutor, having procured Hare’s co-operation as a socius criminis to convict Burke, and all the information which was necessary to bring home to the latter the three charges in the indictment, the Crown was pledged in honour not to proceed against him on any one of these counts. This was, in effect, to say that he was free whenever he could get out of the hands of the infuriated people; because, in so far as regarded the other cases, there was no evidence independently of his, and he would take precious care to withhold every word to criminate himself. It is needless to say that the most sensible of the editors, and all the thinking and honourable of the people, considered this statement of the authorities as reasonable and proper. They would stand upon the honour of the Crown and the dignity of human nature, even at the expense of giving liberation to a man who, by his own confession, was a murderer. They would therefore leave the vulgar to the charum lumen of their prejudices, and so they were left. But, while thus taking this high and dignified ground against those whom a natural hatred of atrocity was said to make low, some ingenious one of their ranks struck out the idea that, though the Crown was shut up to let Hare off, some relative of one of the murdered persons might prosecute for assythment, or a compensation for the loss of life; and immediately it was found that Daft Jamie’s mother, Mrs Wilson, with his sister, Janet Wilson, would be willing, if not anxious, to take the post of prosecutor—a piece of intelligence which pleased the public wondrously.
This proposition was brought to bear by an application presented to the Sheriff on the part of the Wilsons, praying for liberty to precognosce witnesses with a view to the prosecution of Hare; on the deliverance upon which progress was being rapidly made in the examination of several persons, when immediately there was presented to his lordship a petition for Hare, craving to be set at liberty. On the 21st of January, the Sheriff pronounced an interlocutor refusing the prayer of Hare’s petition, on the ground that there was 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; but, in consequence of the novelty of the case, he superseded further progress with the precognitions, in order that Hare might have an opportunity of applying to the Court of Justiciary.
This judgment was accordingly brought under review of the High Court by what is technically called a bill of advocation, suspension, and liberation—the meaning of which is simply that Hare tried another chance for freedom by applying to the highest tribunal. The Lord Justice-Clerk, who saw at once that the question was so far new, and of the first importance, not only in its merits, but viewed in relation to the state of the public mind, wished to have it judged of by all the Lords, and he therefore called upon the public prosecutor to answer the request of Hare. The Lord Advocate, who, no doubt, felt himself placed in a delicate position, but still determined to stand by the law and the dignity of the Crown, accordingly presented his answer; and long pleadings, called informations, having been lodged, the case came to be tried before the Court on the 2d February. The celebrated Jeffrey appeared for Mrs Wilson, and Duncan M‘Neill for Hare. It was maintained on the part of Hare, said Mr Jeffrey, 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 such 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 in respect of the particular crime as to which a socius criminis was to be used as a witness, but might, if he chose, extend it to all other crimes of which he might have been guilty. Whenever the Lord Advocate stipulated an immunity, it seemed to be maintained, on the other side, that a sufferer by housebreaking, fire-raising, and 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 or future, known or unknown. Such a prerogative would be to invest the public prosecutor with a power of pardon which only belonged to the Crown, and this, too, without a tittle of authority, amounting to an assumption of the authority of Parliament; and so forth. But all the eloquence of Jeffrey would not do. The judges had, long before this day of judgment, been down in the deep wells of authority, and, as one of the enraged people said, came up drunk with law, and kicked sober justice out of court. Certainly, if such a profane expression could be used, these learned men might have been in that state, for seldom had they appeared so surcharged with authorities. They seem to have rummaged every corner of the Advocates’ Library and the Register-Office to find out the origin of the law of king’s evidence, and to have hunted out every decision bearing upon the case, so that, it would seem, Hare should be rendered as famous for settling a great and hitherto doubtful point of law, as Burke was destined to be for putting an end to a science. After all, the judges who decided for Hare were found to be right; and, indeed, any one looking at the subject, could not fail to see that, as the Lord Advocate represented the king, and the king, as the great public protector of his subjects and prosecutor of their wrongs, represented his people, and Mrs Janet Wilson and her daughter among the rest, the immunity promised by his lordship to Hare really included an immunity implied as given by Mrs Wilson and her daughter.
While the case was going on, and Hare anxious to get out, he founded his hope on an extraordinary delusion, which could have occurred to nobody but himself. He understood well enough the meaning of the long word assythment, and asked his agent, with one of his leers, what was the value of Daft Jamie. The price given by the doctors, he said, was too much, because, if he had been offered alive to any one, he would not have been bought at any price, so that his mother had no claim, and the judges were just trifling away both their time and their brains about a thing of no value. Incredible as this may seem,—and doubtless many reports passed that were not true,—it is not unlike the man; for it never was asserted, by those who had access to him, that he had the slightest notion of having done anything that was wrong. He was, indeed, one of those men, not so uncommon as the optimists may think, or so impossible as the Christian philosophers maintain, whose consciences are entirely turned round about, and who, when they come to think seriously, find the worm gnawing on the wrong side. Their pain is for any good they may have been tempted to do, their relief for any evil they have been fortunate enough to perpetrate, so true is it that nature is jealous of man’s having it in his power to say that any proposition is absolutely true, and without an exception. But such phenomena, which, after all, are so uncommon as to deserve the name of monstrosities, need not flutter the faith of such men as Chalmers, who found upon the universality of the law of conscience as proving the goodness, if not also the existence, of God. It is only a matter of curiosity that, while such advocates recognise and explain alone the exceptional cases, where there is simply a want of the faculty, they do not seem to think that there can occur, or ever could have occurred, a case where its decrees are absolutely reversed. But, after all, we have to keep in view that the whole conditions, even of Hare’s nature, were not exhausted. For aught we know, if he had been condemned to die, Providence would have vindicated her rule even as to him, and the faculty been observed to right itself. Hare was, at any rate, declared at liberty.