The Lord Justice-Clerk then gave his opinion, throwing his weight with the majority of the Court. He commended the course taken by the Lord Advocate in retaining Hare and his wife as evidence, for had not that been done it was probable no verdict such as was given would have been come to by the jury. As to Hare’s position, it seemed to him that the Lord Advocate had an undoubted privilege, according to long and established usage, of selecting from those suspected of such crimes such persons whose evidence he might deem material to secure the ends of public justice, and to assure them that, upon giving evidence, he would never bring them to trial for their concern in the transactions as to which they were examined. It seemed to his lordship that Hare, having given evidence as he did, completed his indemnity, and rendered it impossible for the public prosecutor to turn round, after the conviction of Burke, and indict the witness for his concern in either of the acts, the trial of which had only been postponed at the earnest desire of the prisoners. It appeared to be undoubted law that the public prosecutor having selected the accomplice, and used his evidence upon the trial, thereby necessarily deprived parties of the right which, but for his proceeding, they undoubtedly would have had to prosecute. If this were not the case, then the relatives of Docherty would also be entitled to prosecute Hare for the share he had in her murder, but it was conceded by the counsel for the respondents (the private prosecutors) that the relations of Docherty could not under the circumstances maintain that right. If Hare were legally exempted from all prosecution at the instance of the public prosecutor, for any accession he might have had to the three acts of murder charged in the indictment against Burke and M‘Dougal, there seemed no ground in law for maintaining that he might still be prosecuted at the instance of the relatives of any of the three parties alleged to have been murdered.
These opinions, weighty and well considered, on a most important point in the criminal law of Scotland, having been delivered, the Court finally pronounced the following judgment:—
“The Lord Justice-Clerk and the Lords Commissioners of Justiciary having resumed consideration of the bill of advocation, suspension, and liberation for William Hare, with the Informations given in for both parties, in obedience to the order of Court of 26th January last, and Answers given in for his Majesty’s Advocate, in compliance with said order; Pass the bill; advocate the cause; and in respect that the complainer, William Hare, cannot be criminally tried for the crime charged in the warrant of commitment, therefore, suspend the said warrant, and ordain the Magistrates of Edinburgh, and Keepers of their Tolbooth, to set the said William Hare at liberty; and discharge all farther procedure in the precognition complained of; and ordain the said precognition, in so far as it has already been taken, to be delivered up to the Clerk of this Court, in order to the same being sealed up, to abide the farther orders of this Court, and discern.”
But though Hare was now ordered by the High Court of Justiciary to be liberated, he was not yet a free man. The relatives of Wilson, acting in a sense as the representatives of public opinion, and certainly supported by public contributions, took further steps, which brought about a new phase of the case against Hare. Immediately after the court had pronounced that it was incompetent to prosecute Hare criminally, there was presented to the Sheriff a petition intimating the intention of Mrs. Wilson and her daughter to prosecute him civilly for the sum of £500 in name of assythment for the murder of their relative, and praying that, as he was in meditatione fugæ, he should be detained in prison until he found caution to appear in answer to their averments. The Wilsons then, before the Sheriff, declared upon oath—“That the said William Hare is justly addebted, resting and owing to the deponents, the sum of £500 sterling, or such other sum as shall be modified by the Court of Justiciary, or any Court competent, as stated in the petition: that the deponents are credibly informed, and believe in their conscience, that the said William Hare is in meditatione fugæ, and about to leave this kingdom, whereby the deponents will be defrauded of the means of recovering said sum: that the grounds of their belief are, that Hare was born in Ireland: that a short time ago he was imprisoned for examination, preparatory to a trial upon a charge of murdering James Wilson, of which they have no doubt he was guilty: that owing to certain circumstances, he has not been brought to trial for the offence, and there is reason to believe that he will speedily be liberated from custody; and owing to the prevailing belief of his guilt, and the popular indignation which has in consequence been raised against him, it is impossible that he can, with safety to his life, remain in Scotland, particularly as he has been suspected to be guilty of other murders; and, therefore, they have no doubt, that as soon as he shall be liberated from custody, which they believe will be this evening, he will use utmost and immediate exertions to escape from Scotland to Ireland.”
This form having been gone through, Hare was brought in, and was asked if he were concerned in killing James Wilson, to which he replied that he would say nothing about it. He was then questioned as to his intentions when liberated, but he remained silent all through. Mr. Monro, the agent for the petitioners, moved the Sheriff to grant a warrant of commitment, and offered to produce evidence that Hare was in meditatione fugæ should his lordship desire it. The Sheriff appointed a proof for that same day. The first witness examined was William Lindsay, a prisoner in the Tolbooth of Edinburgh, who stated that two or three days before Hare told him that if he were liberated he would leave this country and go home to Ireland immediately. John Fisher, the head turnkey in Calton Jail, corroborated. Hare was then informed by the Sheriff that if he intended to remain in Scotland, any witnesses he might wish to speak to that fact could now be examined. The prisoner’s tongue was loosened, and he replied that he had no money, and must go somewhere to get work; that he had no domicile in this part of the country, and could not remain in Edinburgh; and that as a matter of fact he did not know whether he would remain in Scotland, or go to Ireland or England in quest of employment. The Sheriff accordingly granted a warrant for the detention of Hare until he found caution to answer to any action that might be brought against him, in any competent court, for payment of the sum mentioned in the petition.
Hare was thus again thrown back, and it must have seemed to him that if by turning informer against Burke he had saved his life, he was to be deprived of enjoying what remained of it as a free man. But the Wilsons and their friends saw that to prosecute the action for assythment could lead to no good result. Hare was penniless, and it was therefore hopeless to seek compensation from him, while if they did so they would be throwing away money needlessly in the process. The warrant was withdrawn on Thursday, the 5th of February, and Hare was at last free to go where he pleased.
CHAPTER XXXII.
Popular Feeling against Hare—His Behaviour in Prison—Withdrawal of the Warrant—His Liberation and Flight—Recognition—Riot in Dumfries, and Narrow Escape of Hare—Over the Border—Ballad Version of the Flight.
The warrant in meditatione fugæ by the relatives of James Wilson against Hare was withdrawn quietly on the afternoon of Thursday, the 5th of February, and the authorities at once made arrangements for his liberation. They knew that to place him outside the prison gates and allow him to shift for himself would only be to endanger his life at the hands of the excited mob of Edinburgh, who would, under the high feeling then prevailing, have scrupled little about hanging the detested criminal and informer from the bar of the nearest lamp-post, or to have thrown him from the Castle-hill. Hare knew the feeling that was against him, but he affected to treat it with scorn. Even while the proceedings were being taken against him, and it was doubtful if he would not be put upon trial, which would have meant certain conviction, he displayed a levity altogether unbecoming a man in the critical position in which he stood. He asked his agent, with a sneer, what was the value of Daft Jamie, and remarked that the price given by the doctors was surely too much, as if the poor lad been offered alive to any one he would not have been bought at any price. His opinion of the proceedings, therefore, was that the judges were wasting their time and their talent about a thing of no value. On another occasion Hare and several fellow-prisoners were walking in the court-yard when some visitors were being shown through the establishment. One of his companions turned to the strangers, and, pointing with his finger to the notorious criminal, said, “Here’s Hare; look at him!” The eyes of the party were immediately turned upon the man whose crimes had made him so infamous, but he, with brutal nonchalance, stared them out of countenance, and remarked, “Pitch a shilling this way, will ye?”