CHAPTER XXXI.
Hare’s Case before the High Court of Justiciary—Speech by Mr. Francis Jeffrey—Opinion of the Judges—A Divided Bench—The Decision of the Court.
The High Court of Justiciary met to decide on the case, as it now stood, on the 2nd of February. The importance of the issue to be deliberated upon is shown by the fact that on the bench were no fewer than six judges—the Lord Justice-Clerk (Boyle), and Lords Gillies, Pitmilly, Meadowbank, Mackenzie, and Alloway. Hare was represented by Messrs. Duncan M‘Neill and Hugh Bruce; the private prosecutors by Messrs. Francis Jeffrey, Thomas Hamilton Miller, and E. Douglas Sandford; and the Crown by the Lord Advocate, the Solicitor-General (Mr. Hope), and Messrs. Robert Dundas, Archibald Alison, and Alexander Wood, Advocates-Depute.
At the outset, Mr. Jeffrey obtained the permission of the Court say a few words on the power of the public prosecutor to enter into a compact with accomplices whom he might think proper to adduce as witnesses. The particular questions he wished to raise were—Had the High Court of Justiciary no power over such a compact? Had the court, he asked, no judicial discretion over the terms of such an agreement, and did it rest with the Lord Advocate, and not with the court, to decide on its validity and effect? If these were to be answered in the affirmative, then the result simply was that the Lord Advocate was per vias aut modos substantially invested with the royal prerogative of pardon. Mr. M‘Neill, on behalf of Hare, had nothing to add to what was contained in the printed information for his client.
The first judge to give his opinion on the case before the Court was Lord Gillies, who, after complimenting the Lord Advocate for having, by his action in the charge against Burke, saved the country from an “indelible disgrace,” gave it as his opinion that his lordship was entitled to pledge his responsibility for a pardon or remission. But proceeding to the main question, whether this Court had powers, by law, to quash the proceedings taken against Hare by Wilson’s relations in consequence of what took place at his precognition or at the trial of Burke, Lord Gillies, after a long argument, gave it as his opinion that the Court could not do so, and should accordingly reject the bill presented on behalf of Hare. He conceived that, in the general case, the legal right and title of the private party to prosecute was clear and indisputable. By the Act 1587, cap. 77, and a prior enactment, 1436, pursuits at the King’s instance were only subsidiary; and even at the present time, after various changes, the private right of prosecution was, he believed, as sacred and as indisputable as that of the Lord Advocate. Then, on the question of socii criminis, his lordship said that anciently a socius was, as a general rule, not admissible, and had no immunity; but by the Act 21 Geo. II., c. 34, an accomplice to theft or cattle-stealing was admitted, and immunity was granted him if his evidence proved the guilt of the prisoner. In 1770, in the case of Macdonald and Jameson, the doctrine was laid down, not that an accomplice giving evidence was discharged of the crime, but merely that his examination might go far to operate as an acquittal from the crime as to which he was examined. By a decision in 1794, a socius was declared safe; first, if he were examined as a witness; and second, if he spoke out. No doubt there had been a great extension of the law, but taking the only statute that was in existence, they would find that it only gave impunity to him who had been examined, and not to him who might have been cited and not examined. It was said Hare was ready and willing to give evidence on the two charges against Burke that were not remitted to the jury; but this the court could not know, and, at any rate, an examination as a witness, which alone by law, even as extended by practice, gave indemnity, did not take place. As for the relationship existing, in virtue of the compact, between the Lord Advocate and Hare, it was one thing for his Lordship to apply for and obtain a pardon from the Crown, and another thing to have power to give a legal exemption from trial to a criminal, merely by citing him as a witness.
Lord Pitmilly, however, took another view of the case. He concurred generally in the historical résumé of the law as given by Lord Gillies, though he differed in his conclusions. “I feel intensely,” said his Lordship, “for the relatives of Wilson; I sympathise also with the public desire to bring a great criminal to justice; but I feel more for the security of the law; and I hold no consideration so important, as that public faith, pledged by a responsible officer, and sanctioned by the Court, in pursuance of uniform practice, should be kept inviolate, even with the greatest criminal.”
The history of the law relating to socii criminis was very learnedly reviewed by Lord Meadowbank, who submitted that it was clearly established, from a train of practice running through a period of upwards of two centuries and a half, that socii criminis had been admissible witnesses in the law of Scotland. Such being his opinion, he should have presumed at all times, and under all circumstances, the examination of a witness must have operated ipse facto, as an immunity to him from subsequent prosecution for the crime respecting which he was called upon to give evidence. In truth, he declared, so irreconcilable to all sound reason would it be to hold, either that no such immunity was thereby obtained, or that there was not created an equitable right, as in England, to a pardon, that he could not imagine how any socii criminis ever could have been examined. In the present case he considered the promise of the Lord Advocate barred the private prosecutors from taking action against Hare for punishment, though it in no way interfered with their right of prosecution for assythment, and he was clear that this warrant ought to be discharged, and the complainer ordained to be set at liberty.
Lord Mackenzie went over much the same ground as his judicial brethren, and in delivering his opinion that Hare ought to be set at liberty, he said:—“Remembering, as we must do, the dreadful evidence he gave, it is impossible to contemplate his escape without pain,—a pain always felt, in some degree, in every case where an accomplice in a great crime is, however necessarily, taken as evidence for the Crown, but never, I believe, felt more strongly than the present. I sympathize with that feeling; but I feel not less strongly that this man, however guilty, must not die by a perversion of legal procedure,—a perversion which would form a precedent for the oppression of persons of far other characters, and in far other situations, and shake the public confidence in the steadiness and fairness of that administration of criminal justice, on which the security of the lives of all men is dependent.”
Lord Alloway, on the other hand, felt bound to differ from the opinions of the majority of his brethren, and to concur in that given by Lord Gillies. He conceived that Hare might have a protection as to the murder of Campbell or Docherty, he having been a witness against Burke and M‘Dougal in their trial for that murder, but he doubted if that protection extended to the other two charges, as to Wilson and Paterson, or in any other crimes for which Burke was never tried. As to the position of the Wilsons, it was his opinion that a private prosecutor had an undoubted right to prosecute to the highest doom every offender who had injured him, and for the punishment of all offences in which he had an individual interest. This opinion was founded upon the authority of every institutional writer upon the criminal law of Scotland, upon a variety of statutes, upon the decisions of the High Court of Justiciary, and upon the practice of the country; and his lordship thought that these circumstances, without one single authority to the contrary, would have been sufficient to prevent the contrary doctrine from being maintained, chiefly upon the ground of expediency and advantage to the public.