Lord Mackenzie said, although he had been anticipated in what he had to offer on this subject, he considered it his duty to express his opinion. As to the matter of form, he was of opinion that Hare was competently before the Court—and it was necessary to decide whether he had a sufficient protection by the compact with the Lord Advocate against farther proceedings. He held that the calling of a witness who was a socius gives an implied protection, and this he held to be fixed by the cases of Brodie and Smith, followed by all the cases ever since. He considered that Hare had this protection both for the case of Docherty and Wilson. The course of the Lord Advocate had been most wise and expedient; and this wretched man, Hare, had acquired an immunity in all the three cases, in consequence of the promise held out to him. Considering the evidence adduced on the trial of Burke, it was impossible to contemplate Hare’s escape without pain; but he must not die by a perversion of the law, which would shake all confidence in the fair and steady administration of justice.
Lord Alloway concurred in the views of Lord Gillies, and expressed his opinion at considerable length. He applauded the Lord Advocate, who had acted in a manner worthy of himself, and of the high office which he held. His conduct had been distinguished for wisdom and firmness, and he had not a doubt that the Lord Advocate was bound to go to the Crown for a remission to Hare. The Crown, he held, was the only source of mercy. His Lordship could not approve of any authorities drawn from the practice of periods in our history which were a disgrace and abomination—and he could not think of resting any of our law on precedents drawn from the trials of Lord Morton and the Gowrie conspirators. He heard that the trial on which Hare was examined was only on the case of Docherty, not of Wilson; and if it was not the case of Wilson, his examination in the other case afforded him no protection. All other cases except Docherty’s were excluded, and there was no other before the Jury. The Statute of Geo. II. was in viridi observantia. His Lordship was for refusing the Bill.
The Lord Justice Clerk said, that considering this case as one of very great importance, he had prepared his opinion upon it with great care and anxiety, and as he had dictated it, he would now read it without any apology. After some preliminary remarks, that opinion was expressed in the following terms:—“From the statement of the Lord Advocate, it is placed beyond all doubt, that, with a view to the public interest alone, he resorted to the course therein detailed, and considering the atrocious, extraordinary, and unexampled nature of the crimes to which his attention had been called, the infinite importance of avoiding the risk of the escape from punishment of all who then appeared implicated in these crimes, and the immense advantage of a public example from a conviction, he did exercise a wise and sound discretion in betaking himself to the evidence of Hare and his wife, and giving the assurance stated in his answers. It moreover appears to me, that the propriety and wisdom of the conduct of the Public Prosecutor in regard to the important and delicate duty he had to perform, have been most fully evinced by the result of the trial and conviction of William Burke. If instead of following the course he did, he had indicted Hare and his wife along with the other prisoners for the murder of Docherty, (the Public Prosecutor having then, according to his own statement, no sufficient information regarding the murders of Wilson and Paterson) and had failed to obtain a verdict, against the certainty of which not being the case no one will venture to give an opinion; it may be considered what would then have been the feeling of the public in regard to such a proceeding. Keeping the above circumstances in view, and attending particularly to the nature and structure of the indictment exhibited against Burke and M‘Dougal, charging the single crime of murder, in the three specific acts of Mary Paterson, James Wilson, and Mrs. Docherty or Campbell, all alleged to have been perpetrated in the same way and with the same intent, viz. for the sale of the bodies for dissection,—in the list of witnesses subjoined to which Hare and his wife were included—the interlocutor of the Court finding the whole indictment relevant to infer the pains of law, but upon the motion of the prisoners, allowing the separation of the charges, and the trial then to proceed as to the murder of Docherty alone—the subsequent direction, at the desire of the prisoners, given to Hare, to confine his statement to the case of Docherty—the examination which he then underwent, both for the prosecution and the prisoners, is to be carefully attended to.”
[His Lordship then took a most comprehensive and detailed view of the law applicable to the case, which our limits will not permit us to give at length, but the conclusion of it is so important that we must give it to the public, as it affords explanations, which it is desirable that every individual should be acquainted with in a case that has excited so deep an interest.]
“If then, the prisoner Hare is legally exempted from all prosecution at the instance of the Public Prosecutor for any accession he may have had to the three acts of murder charged in the indictment against Burke and M‘Dougal, there seems no ground in law for maintaining that he may still be prosecuted at the instance of the relations of either of the three parties alleged to have been murdered. As to the speciality attempted to be founded on as to his not having been examined with regard to the actual murder of James Wilson, it has already been sufficiently adverted to, in reference to the supposition of the Lord Advocate attempting to prosecute for that offence. The nature of the indictment—the interlocutor finding the whole charges relevant—and the almost identity of the modes of slaughter and intent with which the three acts were perpetrated, and the general nature of Hare’s evidence—have already been pointed out as demonstrating that without a total departure from the fairness and justness that must ever characterize judicial procedure, it is impossible to deny that Hare did mix himself up with matter that had the closest affinity to the other acts, the trial of which did not proceed at the time. It is farther to be recollected that, in the list of witnesses, there stand included various persons connected with the death of Wilson, the discovery of whom, we have the assurance of the Public Prosecutor, was made through the information of Hare alone, who did also make such disclosures as led to the framing of that and the other charge in the indictment. It is utterly impossible, therefore, to view Hare as a person who had not spoken out or given any evidence, relative to the crime for which he is now attempted to be tried. He can by no possibility be replaced in the situation in which he formerly stood. Things are no longer entire with regard to him, as has been justly said. The public has derived the benefit that was expected from his evidence, by the conviction and execution of this guilty associate; and the public faith that was pledged to him in the face of the country, and confirmed by the intervention of the authority of this Court must be preserved inviolate. Such is the deliberate opinion that I have formed, after the most careful and anxious consideration of all that has been urged, both in speaking and in writing, upon this important question, and a careful review of the authorities that appeared to bear upon it. The same opinion I formerly delivered in a most important stage of the trial of Burke and M‘Dougal, with the concurrence of my brothers who were then sitting with me. I am free however to admit, that notwithstanding this circumstance, it was my bounden duty to re-consider that opinion with all due attention to the able and elaborate argument that was offered against it by the respondents’ counsel. I cannot, however, agree with them that the opinion to which they objected, and were well entitled to object, was one of an obiter, or passing nature, and not to be considered of importance at this stage of the trial when it was pronounced. It was, on the contrary, delivered to the Jury, as the opinion of the Court, upon an objection urged in point of law, in the most earnest manner by the counsel for the prisoners, and which, if well-founded, must have gone to the destruction of the credit of the accomplices who had given evidence. There can be no part of the duty of the Judge who presides at a criminal trial more sacred than that of expounding the law to a Jury, in reference to such an objection; and it is necessary, therefore, that the opinion of the Court should be given in the most unequivocal terms. It was accordingly given to the purport and effect that is stated in the printed trial. As no man can say what effect that statement of the law had upon the minds of the Jury,—as it may in fact have led them to give such credit to Hare and his wife, as actually brought about their verdict against Burke, and consequently that his fate had been decided by it, I have no hesitation in declaring, that if I had, upon reflection, been convinced that I had committed an error, and delivered an erroneous opinion in law to the Jury, I should have felt it to be my bounden duty, without the least regard to popular feeling or clamour, to have made such a representation to the Secretary of State, as might have led to an alteration of the sentence of the law upon Burke. The opinion, however, which I did deliver, in my charge to the Jury, so far from being shaken, has been strengthened and confirmed by all that I have since heard or read upon the subject. I shall only add, that if the objection to the credit of the accomplices, upon the ground of their being actually liable to be tried for the two acts of murder contained in the indictment, the trial of which had that day merely been postponed, had been taken, as it ought to have been, when Hare and his wife were offered as witnesses, the point would have been fully argued, and solemnly determined by the Court. But as it was withheld till the addresses to the Jury, every one knows that it could not otherwise have been disposed of than by delivering an opinion upon it to the Jury. I have but one word more to add with regard to the supposed inconsistency between the opinions expressed by myself and my brothers, in regard to a question proposed to be put to Hare, and that which I delivered to the Jury. I must beg leave, however, to say, that when the real res gestae are attended to, no such inconsistency can be found. I find from my notes, that the argument of the counsel “was raised upon the question, if Hare ever was concerned in the commission of other murders?” Upon the competency of that question, the opinions of the Court were delivered, and those opinions must necessarily be viewed as having reference to the question actually proposed, and the injunction which the pannels’ own counsel had themselves desired should be given to Hare, to confine himself to the case of Docherty. And I well recollect of putting it to the counsel, that the witness must be fairly dealt with, and of having stated, that if asked in regard to the cases of Wilson and Paterson, his whole statement must be given, whatever the consequences might be. When the examination was resumed, I do not find that the question is put in the precise terms on which it had been argued; and it was only at a later period that Hare was asked, if there was a murder committed in his house in October last? but as to which the opinion of the Court was not delivered. Whatever shade of difference may therefore appear in the opinions regarding these questions, and that which was advisedly delivered in the charge to the Jury, and I am by no means surprised it has so struck some of your Lordships, must fairly be ascribed, either to the imperfections of the report of the trial, or to the course of proceeding that was adopted at the suggestion of the counsel for the prisoners. I am, upon the whole, of opinion, that the prayer of the prisoner’s bill ought to be granted, and that it would be directly contrary to the established practice of this Court, and the principles of our law, merely to suspend the proceedings against him, in order that a pardon should be obtained for his concern in the offences charged in the indictment, upon which he was examined as a witness. Such would be the course adopted by the judges of England; but, respecting as I do, that law and its institutions, I do not, as a Scottish judge, feel myself warranted to follow it on the present occasion. My opinion is, that it would be equally incompetent to the first officer of the crown, as it is to the private parties now before us, to institute any criminal procedure against Hare, steeped in guilt although he be, in reference to the acts contained in the indictment against Burke, and I can allow that opinion in no degree to be influenced, civium ardore prava jubentium.”
An interlocutor was then pronounced, passing the bill of advocation, (thereby reversing the decision of the Sheriff), ordaining the Magistrates and keepers of the jail of Edinburgh to liberate the prisoner Hare from confinement, quashing the proceedings which had been instituted with a view to bring Hare to trial at the instance of James Wilson’s nearest of kin, and ordaining the precognitions already taken for that purpose to be cancelled.
Thus, in as far as Hare is concerned, these prosecutions connected with the late murders are closed; and whatever may be the opinions entertained out of doors with respect to the conflicting views of the Judges upon the law of the case, it must be satisfactory to the country to find, that although differing materially on many points in the discussion, the Court were unanimous in approving most warmly and decidedly of the Lord Advocate’s proceedings. And, however deeply every virtuous man may lament that a wretch, who is so covered over with crimes, should escape the hands of justice, this feeling ought to be controlled by the recollection that even the guilty must not suffer by stretches of the law, which might also be perverted in other cases, to the ruin of the innocent—that, without the information which Hare has afforded, not even one of the horrid crew of murderers would have been convicted, or the means afforded of checking a hideous system of murder—and that, by the course which the Public Prosecutor has pursued, in giving one man immunity from punishment for such information, a great benefit has been conferred upon society, for which his Lordship is entitled to the gratitude of his country. As to Hare himself, he is morally, and in the eyes of all mankind, a self-convicted murderer. He is liberated for the present from the jail and the gibbet—but he goes forth an outcast on the world, with a brand on his forehead, that can never be effaced. Wherever his name is heard by him, he will hear it amidst the execrations of mankind. His doom hereafter it is not for man to anticipate.
The delivery of their Lordships’ opinions in this interesting case occupied the Court upwards of seven hours. The Court-room was crowded during the whole time.
In the former part of this account, we announced that some particulars of the lives of each of the prominent actors in the black dramas should be given. The press of matter that has since occurred, has hitherto prevented this, but we now proceed to redeem our pledge, in so far as one of them is concerned, by briefly mentioning such things as have come to our knowledge respecting the notorious