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.
WILLIAM HARE,
as he appeared in the witness-box,
taken in Court.
Published by Thomas Ireland Junr. 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,