The History of Burke and Hare, and of the Resurrectionist Times / A Fragment from the Criminal Annals of Scotland

by George Mac Gregor

From the conclusion of the trial until some time after the execution of Burke, the position of Hare was one of great danger, notwithstanding the protection which his evidence was supposed to have afforded him. After the conviction of his accomplice he was, it has been seen, recommitted to prison, and for a time it was believed the Lord Advocate was conducting investigations in order to see if he could by any means proceed against the informer. The press and the public clamoured for the indictment of Hare, for all parties were now convinced that Burke, though undoubtedly guilty of the crime for which he had been condemned, had in many respects been but an instrument in the hands of his wily and more vicious confederate. Some incidents occurred which gave colour to the impression that a criminal indictment would be laid against Hare. On the 1st of January, 1829, the Courant informed its readers that towards the end of December a girl, who had at one time acted as a servant to Hare, had been apprehended in Glasgow, whither she had fled on being cited as a witness in Burke’s trial, and that her evidence would now probably be used against Hare. This was Elizabeth Main, who is mentioned in one of Burke’s confessions as Elizabeth M‘Guier or Mair.

But in addition to the general public there were two parties who may be said to have had a kind of personal interest in seeing Hare brought to justice. These were Burke and Helen M‘Dougal. The condemned criminal, it was stated by the Courant, made his first confession before the Sheriff, more for the purpose of inculpating Hare, than with any idea of giving a general view of his crimes. So eager was he to see his late colleague suffer the same punishment as himself, that he offered to give information of circumstances connected with the murder of a woman by Hare in the course of the preceding summer. This was the old matter over which the quarrel occurred. M‘Dougal, also, waited on the Sheriff on the 27th and 29th of December for the same purpose. Besides these, if the Courant is to be trusted, other witnesses were precognosced, notably several persons who were known to have been in the habit of frequenting Hare’s house, but as the police officials had become even more circumspect than ever, not a hint as to the drift of their information was allowed to reach the public.

These circumstances show that in addition to considering the legal aspect involved by Hare’s protection as an informer, the Lord Advocate had fully inquired into the possibility of putting him on his trial for a crime to which that protection did not apply. His conclusion was that he could do nothing, and it was definitely ascertained by the 15th of January that the commitment obtained by the Crown after the trial would be instantly withdrawn. Every precaution had been taken by the public in view of this contingency, and a subscription had been made to enable the relatives of James Wilson (Daft Jamie) to take up the case as private prosecutors.

On the 16th of January, then, a petition was presented to the Sheriff, charging Hare with the murder of “Daft Jamie,” and his lordship granted permission to take precognitions. When Hare was visited by the agent and counsel employed by Mrs. Wilson (the mother of the murdered lad), he refused to answer any questions, and when leaving the room to which he had been taken to be examined, he remarked, with a sardonic laugh, to a person standing near, “They want to hang me, I suppose.” This was not, however, sufficient, and Mr. Duncan M‘Neill, as counsel for Hare, on the 20th of January, presented to the Sheriff a petition for liberation and for the interdict of the precognitions instituted by the private prosecutors. On the following day the counsel for both parties were heard, and the Sheriff pronounced a decision, in which he said:—“In respect that there is no decision, finding that the right of the private party to prosecute is barred by any guarantee, or promise of indemnity given by the public prosecutor, refuses the desire of the petition; but in respect of the novelty of the case, supersedes further proceeding in the precognition before the Sheriff, at the instance of the respondents [the private prosecutors], till Friday next, at seven o’clock, in order that William Hare may have an opportunity of applying to the Court of Justiciary.” There was accordingly presented to the High Court of Justiciary, on behalf of Hare, a bill of advocation, suspension and liberation. This was an exceeding long document, setting forth all the circumstances of the case, in which it was pleaded that the case by Mrs. Wilson against the petitioner—who had given evidence against Burke on the assurance that if he made a full disclosure of all he knew relative to the several murders which formed the subject of inquiry, no criminal proceedings would be instituted against him for any participation or guiltiness appearing against him—was incompetent, irregular, oppressive, and illegal, and that he was entitled to liberation. The review of the court was asked on the Sheriff’s judgment. This petition was presented to the court on the 23rd January, and it was ordered to be served on the agent for the private prosecutors, while the parties to the case were ordained to appear before the court on Monday, 26th January. On this same day, Hare presented another petition to the Sheriff craving to be released from close confinement, and to be allowed to communicate with his counsel and agent. The Sheriff pronounced an interlocutor to that effect.

In accordance with the liberty granted by the Sheriff to the private prosecutors to take a precognition as to the murder of Daft Jamie, a visit was, on the 23rd January, paid to Burke in the condemned cell by the Sheriff-substitute, one of the city magistrates, and Mr. Monro, S.S.C., the agent for Mrs. Wilson and her daughter. The criminal spoke out fully as to the circumstances attending the murder of the unfortunate lad, and thus far satisfactory progress had been made.

But an incident occurred which diverted public attention to a certain extent in a different direction. This was an announcement in the Courant of Monday, 26th January, that in the issue of the following Thursday there would be published a full account of the execution of Burke and of his conduct during his last moments; together with an important document which had been in their possession for some time—a full confession or declaration by Burke, “which declaration was dictated and partly written by him and was afterwards read by him, and corrected by his own hand, and his signature affixed to attest its accuracy.” This announcement raised the hopes of the public to a high pitch, for the information that had reached them before was only to be gained from a trial, the scope of which was confined solely to one event, and from vague rumours and uncertain statements. Now, it was expected, the whole conspiracy would be made patent. But the announcement was somewhat injudicious and premature, as the case against Hare was pending in the High Court of Justiciary, and it was plainly evident that until a decision was pronounced in it, any confession by Burke would have a prejudicial effect upon him. Accordingly, when the High Court that morning had heard the counsel for parties, Mr. Duncan M‘Neill, on behalf of Hare, called attention to the threatened contempt of Court by the Edinburgh Evening Courant, in promising to publish the confessions of Burke, and he asked that such publication be interdicted, especially in so far as related to the murder of James Wilson. The Lords of Justiciary concurred in the propriety of the application, granted interdict of the publication in the Courant of the document which would likely prejudice Hare, and “recommend all other newspapers to abstain in like manner from so doing.” This was highly disappointing to the public. There was, however, no help for it but to wait, and on the Thursday the Courant was under the necessity of intimating to its readers:—“We regret to state that owing to an interdict issued on Monday last by the Court of Justiciary, to which we are bound to yield the most respectful obedience, we are prevented for the present from laying before our readers the confessions of Burke. But so soon as it is removed, we shall lay this document before our readers, as formerly promised.”

When the Bill of Advocation came before the High Court of Justiciary on Monday, the 20th January, the counsel for the parties were heard at length, after which an order was made that the bill be intimated to the Lord Advocate to make such answer to it as he should think necessary; and also that the counsel for the parties should lodge informations upon the subject matter of the bill by the following Saturday. The Lord Advocate’s answer was interesting in more ways than one, for in addition to bringing into prominence the question of whether the private prosecutor was superseded by the public prosecutor, he detailed the difficulties by which he had been beset in the preparation of the case against Burke. Having briefly touched on the question as to whether the court had the power to require, in this shape, a disclosure of the grounds on which he, as public prosecutor, had been guided in the exercise of his official discretion, he pointed out that the four persons arrested for the murder of Mrs. Docherty, denied all accession to the crime. The evidence he had been able to gain was, he found, defective, and was not sufficient to ensure a conviction from a Scottish jury, which was uniformly scrupulous in finding a verdict of guilty where a capital punishment was to follow. The only mode by which the information essentially awanting could be procured was by admitting some of the accused persons as witnesses against the others, and as he had reason to suspect that at least another case of a similar description had occurred, he felt it to be his imperative duty not to rest satisfied until he had probed the matter to the bottom. For the public interest it was necessary to have it ascertained what crimes of this revolting description had really been committed, who were concerned in them, whether all the persons engaged in such transactions had been taken into custody, or if other gangs remained whose practices might continue to endanger human life. A conviction of all the four persons might lead to their punishment, but it could not secure such a disclosure, which was manifestly of more importance. The question then arose as to what one of the four should be selected as a witness. M‘Dougal positively refused to give any information, and as the Lord Advocate deemed Burke to be the principal party, Hare was chosen, and his wife was taken with him, because he could not bear evidence against her. Hare was, in consequence, brought before the Sheriff on the 1st of December for examination, and then, by authority of the Lord Advocate, he was informed by 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,” continued the Lord Advocate in his answer, “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 interest, 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.” Having briefly alluded to the circumstances attending the trial, when he was prevented from examining Hare and his wife as to each of the three murders set forth on the indictment, his Lordship said it was from the information obtained from Hare, on the assurance of immunity, that he conceived he was enabled to secure a conviction. He proceeded:—“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.” After he had given the assurance, and obtained the results he had, the Lord Advocate said he would not make any attempt to prosecute Hare, indeed, he “should strongly feel such a proceeding, upon his part, dishonourable in itself, unworthy of his office, and highly injurious to the administration of justice.”

After having given so fully the Lord Advocate’s reasons for declining to proceed against Hare, it will not be necessary to do much more than refer to the information lodged by Hare himself, especially as it goes over to a great extent much the same ground. It was maintained that on account of the promise and compact with the public prosecutor he could not now be tried in order to punishment for the murder of James Wilson; and on the question of his position as between public and private prosecutors, it was stated:—“When an offence is committed, the duty of the public prosecutor is to proceed in the matter with a view to the interests of the community in relation to the wrong done, without regard to the effect his proceedings may have upon the power or right, if such exists, of a private party to come forward and prosecute for punishment. The interest of the community, in the matter of punishment, is the paramount interest, and the only ultimate interest which the law can regard; although different persons may, under certain circumstances, be permitted by the law to vindicate that interest. The public prosecutor, as being the person entrusted with the interest of the community, and as representing the community, has the primary right to take up the matter; and, having commenced proceedings for behoof of the community, he cannot be stayed or hindered, or impeded in his prosecution for punishment, by any right or any interest which any private party can claim; and he may do, and daily does, many things which exclude the private party from demanding punishment.... On the other hand, none of these proceedings on the part of the public prosecutor, acting for behoof of the community, can exclude or infringe upon the inherent personal right and interest of the private party to prosecute for assythment or satisfaction. That right belongs to him as an individual, not as a member of the community at large. He claims that, not to deter others from committing the like crimes, but to solace his own wrongs. That is not a matter of punishment, but of satisfaction.”

Some more attention must, however, be paid to the “Information for Janet Wilson, Senior, and Janet Wilson, Junior, Mother and Sister of the late James Wilson, generally known by the name of Daft Jamie,” the private prosecutors, prepared by Mr. E. Douglas Sandford, under the direction of Mr. Francis (afterwards Lord) Jeffrey. After the usual review of the proceedings up to that time, the private prosecutors set forth their intention thus:—“The prosecutors are, in the first place, obliged to support their title in the present prosecution, and to show the constitutional right which, according to the law of Scotland, they possess, of bringing the individual to justice, whom they conceive guilty of the atrocious crime by which they have been injured. But, 2ndly, the prosecutors are anxious to contest the doctrine of indemnity upon which the prisoner has founded, and to show that he is stretching, far beyond its legal limits, the indulgence granted by the Court of Justiciary to those who are examined before it as socii criminis.” As to the right of the private party to prosecute, this, it was contended, was a fundamental and constitutional principle in the criminal jurisprudence of Scotland—not an antiquated right, but one that was recognised by the latest authorities. Having quoted Burnet and Hume, the private prosecutors went on to say, that, legally speaking, there were only two situations in which a prisoner could plead indemnity in bar of trial—previous acquital, by a jury, of the crime of which he was charged, or remission by the Crown. But the point which the prosecutors were anxious to establish was “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 the right of calling upon the criminal 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 the 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. In every case where the public prosecutor wished to protect a criminal, and shield him from the effects of crime, an arrangement, under the pretence of a precognition and searching for evidence against a third party, might at once be made; and if the doctrine maintained on the part of the prisoner be correct, that would prevent all prosecution at the instance of the individual injured.” The assertion of the prosecutors was that their legal right to investigate the circumstances attending the death of their near relation, and to indict the accused party if they should find sufficient ground to do so, could not be interfered with by the proceedings of the public prosecutor, in circumstances over which they had no control. In point of form, it was required by the law that the Lord Advocate should grant his concourse to a prosecution before the High Court of Justiciary, and he had no right to refuse this concourse, but if he should so refuse it he could be compelled to grant it, for the reason that it was not in arbitrio of him to deprive a party of his right. In support of the contention for the private prosecutors various cases were cited, particular stress was laid upon the warnings addressed by the Lord Justice-Clerk and the counsel for Burke and M‘Dougal to Hare when he was in the witness box, that the protection of the Court only extended to the case under trial, and not to the other two charges in the indictment, which had been deserted pro loco et tempore.

Such, in brief, were the pleadings for the parties, and the decision of the Court was awaited by all with great interest—by the lawyers because it would establish an important legal precedent, and by the public because they hoped, through it, to see Hare put on his trial and convicted of the murder of Daft Jamie.