[The information then goes on to narrate the trial of Burke, the circumstances of which are already well known: after which it proceeds to the examination of the suspender, Hare, as a witness on the trial.] After administering the oath to the prisoner, who was brought forward as a witness upon the trial alluded to, Lord Meadowbank stated to him, “Now we observe that you are at present a prisoner in the Tolbooth of Edinburgh, and from what we know, the Court understands that you must have had some concern in the transaction now under investigation. It is therefore my duty to inform you, that whatever share you might have had in that transaction, if you speak the truth, you can never afterwards be questioned in a Court of Law.” Lord Justice Clerk—“You will understand, that you are called here as a witness regarding the death of an elderly woman of the name of Campbell or M‘Gonegal.” “You understand, that it is only with regard to her that you are now to speak?” To this question, the witness replied by asking, “T’ould woman, Sir?” Lord Justice Clerk, “Yes.” But what is perhaps of still greater importance, it will appear that he was not permitted to answer questions which might otherwise have been of importance to the individual then upon trial, upon the ground that he would not be protected upon so doing.
From all which these facts are indisputably established, viz. 1st, That the witness was examined as to no other murder than that of Docherty or Campbell. And 2dly, That he was distinctly warned that he was not bound to answer any question with regard to the other murders contained in the indictment, because as to any other murder except that under investigation, he was not protected by the Court.
The present question therefore stands thus: Hitherto a witness has only been protected from trial for the particular crime as to which he has given evidence. The prisoner has given none as to the crime of which he is now accused, and therefore he has not been placed in that situation which entitles him to the protection of the Court.
When the Court met on 2d February, the Bill of Advocation for Hare against the nearest of kin of James Wilson was called.
Mr. Jeffrey, addressing the Court, said, their Lordships would not suppose that he had any notion of resuming the argument, but the case was brought to such a point that he might be indulged in making one remark. It was maintained on the part of the suspender, 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 any 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 with respect to the particular crime as to which a socius criminis was to be used as a witness, but might extend it to all other crimes of which he may have been guilty. Whenever the Lord Advocate stipulated an immunity, it seemed to be maintained that a sufferer by housebreaking, fire-raising, or 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 and future, known or unknown. Such a prerogative would be investing the Public Prosecutor with a power of pardon, which only belonged to the Crown, and this too without a tittle of authority, and totally different from judicial authority, amounting to an assumption of the prerogatives of Parliament.
Mr. M‘Neill stated that he had no observations to make.
Lord Gillies expressed his thanks to the Learned Gentlemen who had argued this case. The papers were drawn with much care, and with an ability and promptness which did them the highest honour. His Lordship then alluded to the form in which the case came before the Court, and the prayer of the Bill, and stated the question to be, Whether they were to affirm the judgment of the Sheriff and refuse the prayer of the petition to that Judge for liberation, or to grant it and liberate the prisoner Hare? His Lordship considered the question of law to be an undecided and open question. The facts which gave rise to it were but too well known. They were of the most atrocious character—murders committed, not from the ordinary motive of revenge, or of robbery, or to escape from the punishment of other offences,—but its object was indiscriminate murder for dissection, and cold-blooded traffic, rendering the crime profitable in proportion to the number of its victims. These atrocities seem to have attracted the notice of the Lord Advocate, whose conduct, in all these proceedings, he considered highly meritorious. We were all much indebted to that high officer for the wisdom and prudence with which he had conducted the business. There can be no doubt that the same feelings and wishes existed in his Lordship’s mind as in that of every other man; and his Lordship thought that if he could obtain the punishment of two, or even one of the murderers, a great service would be rendered to the public. The result too fully justified his Lordship’s measures. It became necessary to collect evidence of these crimes, and a body of it had been collected—such as could not, perhaps, be obtained in any other part of the world; and what would the consequences have been if such crimes had escaped altogether without punishment? It was for this purpose that he caused the proposition to be made to Hare, which was stated in his Lordship’s answer. And Lord Gillies expressed his entire approbation of his Lordship’s conduct. The Lord Advocate gave his assurance of pardon. That assurance was properly given. He had a power to promise remission, and Hare was entitled to ask and bargain for it; and no man can look into the case without being satisfied that Hare was entitled to a remission for the important information which he had afforded to the Public Prosecutor. On this very information the indictment against Burke was raised, accusing him of three different acts of murder. Annexed to that indictment Hare’s name was in the list of witnesses, and he might have been examined on any one or all of the three charges. The Court pronounced an interlocutor, limiting the trial to one of these—the murder of Docherty. The only information Lord Gillies had as to the trial was derived from the papers, and these referred to opinions delivered at the trial, on which he could not venture to offer an opinion, as he was not present. But in the information for Hare, there was an explanation which was not satisfactory, of the opinions which were said to be contradictory. Those opinions must have had an effect upon the witness Hare in giving his evidence, and persons in his situation were not to be supposed qualified to judge of the law. The impressions, therefore, made on Hare by those opinions were more important than the abstract law, as they must have regulated him in giving his testimony, in as far as his belief that he was safe was concerned. He would, therefore, without reference to what had passed at the trial, express his own opinion whether or not the Court was entitled and empowered by law to quash the proceedings in consequence of what took place at the examination on the trial? His Lordship held the right of a private party to prosecute for murder undoubted. The information for Hare says it is an antiquated privilege. It was not antiquated. He had himself been counsel in a case from Aberdeen; and there were many cases of trial for forgery at the instance of Banks. In Captain Macdonoch’s case from Aberdeen there was no objection hinted at, either by counsel or the bench. It was a sacred right, as much so as if exercised at the instance of the Lord Advocate. There are not many cases of trial for assythment; and none are noticed in the informations. It is due in three contingencies—when remission is before trial—when the accused is tried by a Court Martial—and when he is fugitate or outlawed. His Lordship would not say if in any other case assythment might be found due. What prevents the relatives of the poor lad Wilson from sueing? The same principles apply in this case as if the person murdered had been the highest in the land. Are his relatives to be controlled by the Public Prosecutor? Though Hare was admitted as witness on the trial for Docherty’s murder, and promised an immunity for his participation in it, the Lord Advocate can neither defeat nor control the right of prosecution in Wilson’s relatives, nor unless in a case where the witness promised an immunity has been actually examined and borne testimony. If a prosecution at the instance of the Public Prosecutor for murder is followed by death, that is conclusive, and shuts out process at the instance of a private party. If there is a remission, assythment is competent; and if there be an acquittal, there can be no process. There is nothing of this kind in the present case. His Lordship stated that the avowed object was to bring Hare to trial—that the right to do so was clear, and he did not know if the Court had any legal right to prevent it or to defeat it. The practical result was important, as Hare would not suffer death. He reprobated the plea that this case should be decided on principles of humanity, justice, and policy. It was not what judges held to be such principles—but what the law lays down that is to regulate them. The true question is, Whether the Court has power to prevent the trial; and he was satisfied that neither the law nor the constitution authorised it. He went into a view of the history of the law upon the subject of admitting socii criminis, and referred to the Act 21, Geo. II. c. 31, as for the first time introducing what was previously unknown in our law. He considered that act as a resting place in the progress of the law upon the subject—and the only satisfactory one—and it was given under limitations. It was afterwards extended, and he was not sure if it was well and wisely done. His Lordship then referred to cases since that time, and, after other illustrations, concluded by expressing his opinion that the bill should be refused, and the investigations allowed to proceed.
Lord Pitmilly approved of the manner in which the case had been conducted. He did not consider it necessary to take notice of the proceedings at examination on the trial, of which there is no authenticated record. The question was, whether they were to stop proceedings or not—and he could not concur in Lord Gillies’s views. As there were two ways to the same object, and as he had the consolation to think that the practical result would be the same as to the individual concerned, he should have been happy if he could have concurred; but there was a principle involved which prevented him from doing so. His Lordship took a view of the practice with regard to socius criminis in reference to the Public Prosecutor and to private parties; and stated that the old law of this country excluded them. The law of England admitted them from the first; but more recently our late decisions and practice admitted them in every case. Such a system could only be introduced gradually. His Lordship differed from Lord Gillies in his view of the act Geo. II. c. 34, which introduced a particular rule of law for a special case. It was not a general act, and laid down no general rule, but rather an exception. The 20th section enacted a rule different from that in 31, and the act could not be considered as a resting place in the history of the law as to socii. His Lordship then went into a review of the cases applicable to this point, and the principle laid down in the case of Smith and Brodie had now been uniformly acted upon for a period of upwards of forty years. The Lord Advocate’s statement was highly satisfactory, and every one must agree in approving of the whole course of his proceedings. His Lordship could not, after procuring all the information which Hare afforded on the faith of the promised immunity, turn round and proceed against him, because he had not been examined on the two cases not brought to trial. He next considered the right of the private party, and held that if it was competent to proceed against Hare in the case of Wilson, it was equally competent to proceed against him in the case of Docherty, at the instance of private parties; yet it is admitted, that in the case of Docherty the right of the private party is controlled, and must be controlled. After a variety of other illustrations, which we regret our limits will not allow us to repeat, in support of these doctrines, Lord Pitmilly concluded by saying, that the purity and integrity of the law and the faith of the Public Prosecutor, which, for the public good, must not be broken, required that the liberation of the prisoner should be granted, and the proceedings against him stopped. He felt most intensely for the relatives of James Wilson—he sympathised with the public in their feelings of detestation upon the subject of the murders which had led to these discussions—but he felt more for the honour of the country, which was bound to vindicate the faith of a great public officer acting for the public welfare.
Lord Meadowbank considered this a very important case as regarded the consistency of the Court, and also as it affects the First Law Officer of the Crown—and if he were under the necessity of refusing to discharge the warrant of commitment against Hare, it would be to him a subject of humiliation and endless regret. His Lordship differed from his brethren, who considered the admissibility of a socius criminis as of modern introduction into the law of Scotland. He referred to the authority of Lord Hailes, and the trials of Lord Morton, and the Gowrie conspirators, to show that socii were received as witnesses of old, and that remissions had been given for the purpose of obtaining their evidence. His Lordship went into an eloquent and learned illustration of the antiquities of our criminal law in the days of the Justiciar, and previous to the time that the Lord Advocate was invested with his present power, and maintained that at no period in the law of Scotland has a private prosecutor ever enjoyed the power of sueing a criminal without being subject to control by the Public Prosecutor and the Court; and he held that when the king created the Lord Advocate Public Prosecutor, he also must be held to have invested him with all the powers necessary for explicating the duties of his office. Among these the power of remission of offences for the purpose of obtaining information essential to the public welfare must have been transferred. There never had been a prosecution of a socius criminis at any period in the history of the Court when he had obtained the promise of indemnity from the Lord Advocate, and given information and evidence. His Lordship was therefore for quashing the proceedings.