M‘Dougal positively refused to give any information.
The choice, therefore, rested between Hare and Burke; and from the information which the respondent possessed, it appeared to him then, as it does now, that Burke was the principal party, against whom it was the respondent’s duty to proceed. Hare was therefore chosen, and his wife was taken because he could not bear evidence against her.
This course having been resolved upon, an overture was made to Hare by the authority of the respondent, with the view to his becoming a witness, and the proposal which was so made to him—(and which did not proceed from him)—was accepted. He was in consequence brought to the Sheriff’s office on the 1st of December for examination, when, by the authority of the respondent, he received an assurance from the Procurator Fiscal, that if he would disclose the facts relative to the case of Docherty, and to such other crimes of a similar nature committed by Burke, of which he was cognisant, he should not be brought to trial on account of his accession to any of these crimes.
This assurance had no reference to one case more than another. It was intended for the purpose of receiving the whole information which Hare could give, in order that the respondent might put Burke, and all others concerned, on trial for all the charges which might be substantiated. In giving it, the respondent acted under the impression, and on the understanding, that when offences are to be brought to light in the course of a criminal investigation carried on at the public instance, such assurance altogether excluded trial at the instance of any private party. In its nature this assurance was thus of an unqualified description, and was calculated to lead the party to believe that the possibility of future trial or punishment was thereby entirely excluded. The assurance was so meant to be understood.
In consequence of this assurance, Hare emitted a declaration, detailing the circumstances connected with the murder of Mary Docherty, and with similar crimes, in which Burke had been engaged. Of these, the murder of James Wilson, and of Mary Paterson or Mitchell, were two; and it was from the facts which Hare so detailed, that evidence was obtained from unexceptionable witnesses, of such a nature as enabled the respondent to bring forward those two murders as substantive acts in the same indictment which charged Burke with the murder of Mary Docherty. By this proceeding, the respondent conceived that he had fully satisfied not only the ends of public justice, but the rights and feelings of all those who were connected with the unfortunate individuals thus referred to.
In the indictment, William Hare and his wife were inserted in the list of witnesses, along with all those persons whose evidence the respondent had been able to obtain in consequence of the disclosures which Hare had made. When the respondent entered the Court on the day of trial, it was his full intention to examine Hare and his wife as to each of the three murders set forth in the indictment. How he was prevented from so doing the Court is already aware. Had Burke been acquitted of Docherty’s murder, the respondent must, in the discharge of his duty, have proceeded to try him on the other two charges; and in proof of both, Hare and his wife must have been examined as witnesses. As it was, they were both adduced on the trial, and it was from the information obtained from Hare, on the assurance of immunity, that the respondent conceives he was enabled to secure a conviction.
The warrant of imprisonment against Hare and his wife, at the public instance, has since been withdrawn, in consequence of its having turned out, after the most anxious inquiry, that no crime could be brought to light in which Hare had been concerned, excepting those to which the disclosures made by him under the above assurance related.
In regard to the crimes so disclosed, whether they were included in the indictment against Burke or not, the respondent having, in the conscientious discharge of his duty, authorised the assurance to be given which has now been stated, apprehends that he is legally barred from prosecuting either of those persons at his instance, and he will not make any such attempt. He need not add that he should strongly feel such a proceeding, upon his part, as dishonourable in itself, unworthy of his office, and highly injurious to the administration of justice.
Having thus, in compliance with the order of your Lordships, given such information to the Court as he has deemed proper, in regard to the situation in which the Public Prosecutor stands, in reference to the murders set forth in the bill of advocation, the respondent has only to add, that, upon perusing the said bill, he finds no statement in it which requires any answer on his part.
The information put in for Hare states that the question now to be resolved is, Whether the informant (Hare) is protected from farther criminal process in order to punishment, for the murder of James Wilson alias Daft Jamie? It then narrates the facts and circumstances which have given rise to the question, and states the legal grounds on which Hare rests his application to the Court for liberation from prison, and at great length proceeds to submit the grounds of his plea, and concludes thus:—