The Caledonian Mercury.
THE PUBLIC PROSECUTOR AND HIS APOLOGISTS.
Mieux cents ennemis qu’un imprudent ami.—French Proverb.
The remarks which appeared in our Monday’s publication, on the defence of the Lord Advocate inserted in a contemporary Journal of Friday last, have been reviewed, not answered, in the columns of the same paper of Tuesday; and were it not of the very greatest importance, at the present moment, that the public should be accurately informed respecting some of the points at issue, we should have been well content to leave the subject to the decision of all competent persons, upon our first and somewhat hurried statement. We trust that we shall be excused for proceeding at once to deal with the only matters of law and fact to which the writer has thought proper to advert.
And, in the first place,—(for the sake of perspicuity, we shall take the different topics in the same order as formerly)—the writer reluctantly admits the validity of the argument which we adduced “to show that had not the Lord Advocate moved for judgment against Burke, when found guilty of the last of the three murders charged against him, it would have been competent to have led evidence of the circumstances attending the other two.” But he asks, cui bono? “What good effect could have resulted from the leading of it?” We answer, first, that it would have redeemed the Lord Advocate’s pledge; and, secondly, that it would have satisfied the country. Both in replying to the arguments of the prisoner’s Counsel on the relevancy, and in addressing the Jury for the Crown, his Lordship distinctly pledged himself to probe and sift the whole of these murders to the bottom. In the former case, while contemplating being under the necessity of deserting the diet against M‘Dougal, owing to the view taken of the indictment by the Court as containing a cumulatio actionum, and the exercise of their discretionary power in separating the charges, he said, “The question is now reduced to one of time and trouble; for if I do not proceed against her to-day, she will be proceeded against ten days hence. In such circumstances I shall not certainly insist now on that woman’s being tried on this indictment. I shall proceed against her alone, since she now says that being tried on this indictment will prejudice her case.” And again, almost immediately after, he added, “No motive shall induce me, for one moment, to listen to any attempt to smother this case; to tie me down to try one single charge instead of all the three. I am told that the mind of the public is excited; if so, are they not entitled to know from the first to the last of this case; and is it not my duty to go through the whole of these charges? I would be condemned by the country if I did not, and what to me is worse I should deserve it.” The Court, in giving judgment on the relevancy, fully recognised the propriety of this most distinct and articulate pledge; for Lord Pitmilly unequivocally held, that it was competent to try Burke on all the three charges, and that the Public Prosecutor should proceed with the first and then with the others. Lord Meadowbank, entirely concurring in this view, expressed his opinion, that while their Lordships sustained the indictment, they should “direct the Lord Advocate to proceed separately in the trial of the different charges.” Lord Mackenzie and the Lord Justice Clerk acquiesced in this suggestion, and, in fact, it ultimately became the judgment of the Court. Fortified by such authority, the Lord Advocate accordingly reiterated his pledge in his address to the Jury, and in terms equally emphatic and unequivocal. Now, we would simply ask the writer before us, Was this sacred and solemn pledge redeemed? Were “all the three” charges tried? Were they gone through from first to last? Did the Prosecutor do his duty according to his own view of it, by going “through the whole of these charges?” He cannot answer in the affirmative. By moving for, and obtaining judgment against Burke on the conviction under the first charge, he rendered it impossible for himself to redeem his pledge; and two of the charges were, in consequence, dismissed without investigation. Now, was this not an error in judgment, which is all we ever alleged? Nay, was it not an error calculated to place the Prosecutor in a very embarrassing position in reference both to his own pledge and to the public? It is true the apologist says that trying Burke upon the first and second charges, after he had been convicted on the third, would have been “like pouring water on a drowned mouse.” But we cannot say we admire either the elegance or the felicity of this illustration. The question is not one that concerned Burke, whose fate was in fact determined by the conviction under the third charge. It concerned the Lord Advocate and the country alone; the former as having become bound to try “all the three” charges; and the latter as, by his Lordship’s admission, “entitled to know them from first to last,”—a knowledge which his Lordship conceived it to be his “duty” to afford, and which he would be deservedly condemned by the country if he did not afford. But the writer adds, that taking any further proceedings was calculated “to excite the feelings of the public unnecessarily and without object.” We are really surprised that any person could have been found short-sighted and ignorant enough to hazard such an assertion. What! was the exposure of one murder, and the quashing of all investigation into the circumstances of other two, calculated to allay the excitement of the public mind; or rather, was it not calculated to produce the very opposite effect? A corner of the veil only had been lifted up; a glimpse merely had been given of crimes which this very writer himself describes as “destined in point of atrocity, to stand alone, and in advance of every other that man has hitherto been known to commit,” and as covering up from the view “the very outposts and limits of human wickedness;” and then the curtain was suffered to drop on others which it was equally necessary that the public should know, and which they were equally “entitled” to have fully and thoroughly brought to light: this was the course pursued; ample scope was given for the imagination to work, under the influence of an undefined apprehension; and yet we are gravely told that this was the most approved mode which could have been adopted to prevent an unnecessary excitation of public feeling! Has it been attended, we would ask, with any such results?
Next, as to the unquestionable title of Daft Jamie’s mother to prosecute Hare for the murder of her son, with concourse of the Lord Advocate, which concurrence his Lordship may be compelled to give, our learned opponent remarks, that “this seems very novel doctrine.” We certainly do not hold ourselves bound to instruct our opponent in the first principles of criminal law; but, for the sake of a public purpose, we shall endeavour to show that the doctrine we maintain, so far from being “novel,” is tritissimi juris, one of the most common and most thoroughly settled principles in our criminal code. To entitle a private party to prosecute, he must have an interest, not remote or feeble, but immediate and powerful in the cause; the wrongs alleged must be wrongs done to the person, and “of a high and aggravated kind, such as may naturally excite strong feelings of anguish and resentment in the minds of the kindred of the sufferer;” an oath of calumny must be taken by the prosecutor, if required by the party accused; caution must be found to insist in the prosecution; and the law also subjects the private prosecutor in expenses, and even in penalties, if he insist in a groundless or malicious accusation. Now has not the mother of Daft Jamie an interest in the prosecution we point at? Was there not a wrong done to the person of her innocent child who was foully murdered? May she not with perfect safety take the oath de calumnia, if required? And is it impossible for her to find caution to insist, and to find means to defray the expense of the prosecution? The public, with their usual generosity, will, we doubt not, give a practical answer to the last of these queries; and as to the others, we profess ourselves unable to discover that we have proponed any “novel doctrine.”
Again, we said the Lord Advocate might be compelled to grant his concurrence in such circumstances; and we think Mr. Burnett and Mr. Baron Hume will amply bear out our assertion. The former, after stating at length the conditions above briefly indicated, says, it is perfectly understood “that his Majesty’s Advocate cannot refuse his concourse, and may be compelled to give it, in all cases where the complaint of a private party is founded on a known and relevant point of dittay, (murder for example) and as to which he has prima facie a title to insist.” pp. 306–7.—And Mr. Baron Hume is, if possible, still more explicit on the point. After stating that the Lord Advocate may refuse his concourse, if it be asked to a charge of witchcraft, which a statute has expunged from the list of crimes, or of treason for which no private party can prosecute, or of murder at the instance of some stranger, who does not even allege that he is anywise related to the deceased, he goes on to say, “On the other side, certainly the Lord Advocate is not the absolute and accountable judge on such occasions; but is subject to the control and direction of the Court, who will oblige him to produce and justify the grounds of his refusal to concur. Nay more; except in such extraordinary situations as those above supposed, he shall not even be allowed to engage in any inquiry concerning the merits of the case, the propriety of the prosecution, the form of the action, the sufficiency of the title, or the like, BUT SHALL BE ORDAINED TO COMPLY STRAIGHTWAY; leaving the discussion of these matters for the proper place and season, after the libel shall be in Court.” Vol. II. pp. 123–24. Lord Alemore’s opinion, given on the complaint of Sir John Gordon against his Majesty’s Advocate, June 21, 1706, is equally precise: “Had the Advocate refused his concourse, he might have been compelled to give it, for everyone is entitled to justice; but he cannot be forced to prosecute.” Maclaurin, p. 298. Is there any “novel doctrine” in all this?
But our opponent endeavours to complicate the matter by most disingenuously attributing to us a statement which we never made, or even so much as dreamt of, namely, that the mother of Daft Jamie, “taking advantage of the disclosures made by the infamous Hare, under PROMISE of pardon,” is entitled to prosecute him with the concurrence of the Lord Advocate. The artifice is paltry enough; but our answer is, that the rights of the private party, who, as such, “is entitled to justice,” cannot be in any manner of way læsed or impaired, far less destroyed by any previous proceedings of the Prosecutor, in his public capacity; especially when these proceedings are in the eye of the law illegal, and only winked at upon a principle of utility or general expediency. What, in the name of common sense, of reason, and of law, had the mother of Daft Jamie to do with the disclosures made by Hare to the Lord Advocate “under promise of pardon?” That “promise” may be good against his Lordship himself; but it is utterly monstrous to pretend that it can in any way affect the rights of a private party who comes forward to prosecute; which it would unquestionably do, in the most serious manner, were his Lordship to be held entitled, in virtue of that most injudicious promise, to refuse his concurrence. Nay, we maintain, on the authority of Mr. Baron Hume, that it would be illegal in the Lord Advocate, when his concourse was applied for, to take any such circumstance into his consideration at all; for it is expressly laid down in the passage already quoted, that his Lordship “shall not even be allowed to engage in any inquiry concerning the merits of the case; the propriety of the prosecution, the form of the action, the sufficiency of the title, or the like; all these are jus tertii to him;” and, accordingly, the Court would “ordain him to comply straightway; leaving the discussion of these matters for the proper place and season, after the libel shall be in Court.” This, we should think, is not very “novel doctrine;” and as no man, we are assured, “would be more happy to think our reasoning without flaw, than the Lord Advocate,” (which we well believe,) we humbly hope that the exposition we have now given will be found to answer that condition.
These then are the main points of our case; and we flatter ourselves that we have made them out. But as we are resolved to engage in no further controversy on the subject, and therefore wish to clear off our score at once, we shall take the liberty of adverting, before we conclude, to one or two points of secondary importance, on which our opponent strenuously insists.