The principles of law, and the direct and recent authority now stated are sufficient, it is submitted, to govern this case.
Even if the principle of law and the authority referred to had been less plain and satisfactory than they are, the informant might, with great confidence, have rested his case on the principles of “humanity, justice, and policy,” which are said, on the other side, to be at the foundation of the rule of law which secures protection to a witness socius criminis, and which, indeed, pervade, and are interwoven with, every part of the criminal law of Scotland, and may legally be appealed to in the absence of any other guide. Every thing adverse to these principles, and certainly every novelty adverse to them, must be repugnant to the spirit of the law. The proceedings which the informant now resists are of this character; while the prayer he has preferred to your Lordships is plainly in unison with those great principles which are at the foundation of our criminal code, and are intermingled with the administration of it. Your Lordships have before you the case of a prisoner who has had the misfortune to be accused by the Public Prosecutor of acts of murder, of which he may have been innocent or guilty. Let it be taken either way. Suppose him to be, as his adversaries describe him, a delinquent polluted by crimes of the blackest die—one of a fraternity who conspired against the lives of the lieges, and who carried on the work of blood with a secrecy and a success which the firmest cannot hear without trembling, or the hardiest without horror—let the prosecutors describe his character and his crimes in any language they please—still, in his case, as in every other, justice must be observed, and the law must be administered in the spirit of humanity, and with a view to future consequences. If he has really been a member of such a conspiracy as is alleged, the greater is the benefit which he has conferred upon the public, by laying open all the hidden acts and secret ramifications of that confederacy, and the greater the danger to which, in the event of trial, he has exposed himself by giving any information or any evidence whatever in regard to any of its transactions and deeds. But he made a compact with the representative of the interests of the public; and he has given to the public, by their representative, the benefit of all his knowledge of these transactions, in consideration of the community having released him from all claim for punishment. This compact having been acted upon—every information which the informant possessed having been drawn from him—he having been publicly called upon to appear as a witness in regard to the very murder now under consideration—he having been placed in the witness-box, and having publicly given evidence in relation to a part of those proceedings to which he is said to have been accessary, and having thereby publicly connected himself with the chief actor, whose conviction he ensured; and having exposed the system, and laid open the sources of evidence, and thus furnished the means of bringing himself to trial, if that were competent—borne down with difficulties and surrounded by perils, by which he would not otherwise have been environed—the strength of his defence impaired or taken away—is it consistent with humanity, or justice, or policy, that two individual members of the community, who all the while lay by without giving notice of such intention, should now come forward, to violate public faith, and to turn the information given for the benefit of the public against the life of him who gave it, in reliance on the compact he had entered into with the Public Prosecutor? Every principle of humanity, of justice, and of policy, is opposed to such a proceeding. There is no precedent—there is no authority for such a proceeding. The informant acted in the belief that he had secured his protection. The Public Prosecutor acted in the belief that he was entitled to secure, and had secured to him, that protection, and had done so for the ultimate benefit of the public, in securing the conviction and punishment of an offender. If both parties erred in their notions of the law, they erred in common with a quorum of your Lordships’ number, discharging the most important duty of the Supreme Criminal Court. If the law is now, for the first time, to be declared against that understanding and opinion, let the operation of this new declaration be confined to future cases—but let not this new state of things—this alteration of a deliberate judgment of the Supreme Court, operate to the prejudice and injury of the informant, when matters are, in respect to him, no longer entire. To do otherwise would be productive of no good object. The ends of justice would not be thereby promoted. The public faith would be broken, and, above all, the informant could not now have a fair trial. These considerations give him a sufficient claim to the interposition of your Lordships to prevent further proceedings against him.
The Information given in for the relatives of James Wilson is also of great length. It is there stated—
1. That the right of the private party to prosecute is not controllable by the Public Prosecutor, and is independent of him.
The prosecutors state this as a fundamental and constitutional principle in the criminal jurisprudence of Scotland. It is not an antiquated right, as stated by the counsel for the prisoner, but is recognised by the latest authorities, and is consistent with the most fundamental principles of our practice. There can therefore be no question as to the title of the prosecutors. They state themselves to be “the nearest kinsmen of the deceased, demanding the vengeance of the law on the body of the culprit if he is found to be a murderer.”
Legally speaking, there are only two situations in which a prisoner can actually plead indemnity in bar of trial, viz. Previous acquittal by a Jury, or remission by the Crown. These are the two constitutional modes of freeing an accused party from the consequences of alleged crime, and either of them is an effectual bar to trial, whether at the instance of the Public Prosecutor or of the private party. But the point which the prosecutors are anxious to establish is this, that whatever may be the nature of the private arrangement between the Public Prosecutor and the criminal, and whatever may have been his inducement to give up his right of calling upon him to answer at the bar of justice for the crime of which he is guilty, that arrangement cannot deprive the private party of his right to insist for the full pains of law. If the law contemplated the power of the Public Prosecutor to deprive the private party of his right to prosecute, by arrangements to which the latter is no party, it had better declare at once, that the private instance shall be at an end, because it virtually would be so. The assertion of the prosecutors, however is, that their legal right to investigate the circumstances attending the death of their near relation, and to indict the accused party, if they shall find sufficient ground to do so, cannot be interfered with by the proceedings of the Public Prosecutor, in circumstances over which they have no control. They say, that this doctrine must be held, because it flows as a necessary and irrefragable consequence from the constitutional right of prosecution, which has been proved to exist. If the right be in the private party, how can it be wrested from them, by the communications which pass between the criminal and a third party over whom they have no control, but to whom, on the other hand, the law gives no power of depriving them of that right of demanding justice and vengeance which it has vested in them?
In point of form, indeed, it is required that the Lord Advocate should grant his concourse to a prosecution before the High Court of Justiciary. But this form is established, not for the purpose of showing that his permission to prosecute is necessary, but for the purpose of showing that there is a public injury to be vindicated as well as a private party to be satisfied. Accordingly, the Lord Advocate has no right to refuse his concourse. If he should refuse, he can be compelled to grant it, for this very reason, that it is not in arbitrio of him to deprive the private party of his legal right. The law was so stated by Lord Alemore, on the complaint of Sir John Gordon against his Majesty’s Advocate, June the 21st 1766, and the same doctrine is laid down by our authorities.—[Here quotations in support of the above doctrine are introduced from Burnet, p. 300; and from Hume, vol. ii. p. 123.]
The Prosecutors pleaded, II. That the socius criminis is only protected by the indulgence of the Court with regard to the particular crime as to which he gives evidence.
Formerly a socius criminis was not received as an evidence in the criminal Courts of this country, because of the interest which he was supposed to have in establishing the guilt of the individual accused, and thus freeing himself from the imputation of the crime; and the practice which has lately crept in of affording an indemnity to the witness, for the crime as to which he has given evidence, does not appear to have been recognised until subsequent to the case of Jameson in 1770. In the case, accordingly, of Macdonald and Jameson in August 1770, when the objection of a witness having been socius criminis was fully debated, the Prosecutor in answer did not say that the witness, by being examined, would thereby be exempted from prosecution, but only that he might hope for impunity; while the usage, at that time, of granting special pardon, to accomplices for enabling them to give evidence, confirms what has been stated. At what period a different rule came to prevail does not appear. Baron Hume conceives that the practice may have commenced from the rule introduced by 21st Geo. II. cap. 25, as to a particular offence.
The doctrine maintained on the part of the prisoner is, that he is relieved, not only from the consequences attaching to his participation in the crime as to which he has been examined, but also as to others, in regard to which the same parties may have been implicated, but which have not been the subject of trial. This argument extends the doctrine of indemnity much farther than it has yet been carried. For the question underwent grave discussion, and the practice, as then followed by Public Prosecutors and recognised by the Bench, is distinctly stated by the Learned Judges in the case of Downie, who was tried for high treason in the year 1794. The discussion arose upon certain questions being put to a witness of the name of Aitcheson, tending to criminate himself. The danger had been pointed out by the Counsel for the prisoner, to which the course of the examination might lead, as the witness might confess that which was sufficient to convict him of the crime of treason. The doctrine laid down by the whole of these Learned Judges is this, that for what the individual told the Court as a witness, he could not afterwards be questioned; but they distinctly state, that if the witness, after being put into the box, refuses to answer, he would not have been entitled to any protection.