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.
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 LordAdvocate wasper vias aut modossubstantially 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 ofsocii criminis, his lordship said that anciently asociuswas, 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 mightgo farto operate as an acquittal from the crime as to which he was examined. By a decision in 1794, asociuswas declared safe; first, if he wereexaminedas a witness; and second, if hespoke 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 readyand 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, whichaloneby 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 historicalrésuméof 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 tosocii criminiswas 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, thatsocii criminishad 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 operatedipse 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 anysocii criminisever 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 hewas 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.
The Lord Justice-Clerk then gave his opinion, throwing his weight with the majority of the Court. He commended thecourse 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 orderof 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 wasin 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 isin 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 willspeedily 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 wasin meditatione fugæshould 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 toprosecute 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.
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.
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 warrantin meditatione fugæby 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 boughtat 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?”
It was but natural that in the state of public feeling the decision of the High Court of Justiciary in Hare’s petition should cause dissatisfaction in many quarters; and the fact that two of the judges took a different view of the law from the majority of their colleagues, only tended to prolong the controversy. Many were the bitter comments made on the case, but none was more forcible than the remark that the judges came to decide on the case drunk with law, and kicked sober justice out of court. Clever although this statement was, and partially true, it involved a fallacy which was admitted after the excitement occasioned by the disclosures of the conspiracy had spent itself.
But notwithstanding this feeling on the part of the public, the law had to be carried out, and Hare had to be set at liberty. The prison officials took an outside place for him, under the appropriate name of Mr. Black, on the coach for England; and shortly after eight o’clock on the night of Thursday, the 5th of February, Hare left Caltonhill Jail. To prevent identification he was muffled up in an old camelot cloak; and in his hand he carried a small bundle of clothes. Accompanying him was John Fisher, the head turnkey, who was charged to see him safe out of Edinburgh. At Waterloo Bridge they called a hackney coach, and in it drove to Newington, where they waited the arrival of the mail. When the coach came up it was stopped, and Hare took his place on the outside. As the guard called out to the driver, “All’s right,” the turnkey shouted out a cordial farewell to hisquasifriend—“Good bye, Mr. Black, and I wish you well home.” Away the coach went, and Harewas free and out of Edinburgh without it being known to any but the prison officials that he was even at liberty. What a tumult there would have been had the people suspected that the man for whose death they clamoured was posting from them! Had they even had an inkling of what was going on it is problematical if he would have been allowed to leave the city without marks of their vengeance which he would have borne to his dying day, possibly he would have been torn to pieces.
However, the plans of the authorities had been carried out with such secrecy that no one was aware of what was being done, and Hare might have left the country without recognition, had it not been for his own imprudence. The night was bitterly cold, and in the frosty air a seat on the top of a rapidly travelling coach was far from comfortable. Accordingly, when the mail arrived at Noblehouse, the second stage on the Edinburgh road, Hare, knowing there were twenty minutes to wait, descended from his perch, and accompanied the inside passengers into the inn. He seemed to be alive to the dangers of recognition, for at first he sat near the door, at the back of the company, with his cloak muffled closely around him, but some of his fellow-travellers, thinking his backwardness was due to modesty, said he must be perishing with cold, and invited him to a seat nearer the fire. Hare felt the truth of the suggestion, and in taking advantage of the invitation he threw aside his cloak and hat to warm his hands before the roaring fire. This was an injudicious movement on the part of the fugitive under any circumstances, but it was especially so now owing to the fact that Mr. Sandford, the advocate, who had been employed along with Mr. Jeffrey by Daft Jamie’s relatives to conduct the prosecution against Hare, was a passenger in the coach, and one of the company in the inn. Sandford at once recognised him, and Hare knew that, for he saw the advocate shake his head ominously at him.
When the guard blew his horn for the renewal of the journey, Hare was first at the coach-door, and as the night was so bitterly cold, and there was a vacant seat inside, he was allowed to occupy it. Mr. Sandford, however, when he discovered the new arrangement, ordered the guard to “takethat fellow out,” and although others of the passengers remonstrated on the hardship of sending the man to the outside of the coach in such weather, he insisted upon being obeyed, and accordingly Hare was transferred to his old seat. The coach again started, and the advocate judging that his fellow-travellers were entitled to some explanation of his extraordinary conduct, revealed to them the identity of the person he had dealt with so harshly, and if their sympathies did not altogether disappear they at least concluded that the position taken up by Mr. Sandford was to some extent justifiable.
When the coach arrived in the morning at the King’s Arms in Dumfries, the news spread rapidly that Hare was among its passengers, and by eight o’clock a crowd of some eight thousand people surrounded the inn, all eager to obtain a sight of the notorious murderer whose terrible crimes had caused such a sensation in that, as in other parts of the country. It was known that he was bound for Portpatrick, and the interval of four hours between the arrival of the Edinburgh mail and the departure of the Galloway and Portpatrick coach was one of the most exciting in the history of Dumfries. Meanwhile Hare was inside the inn drinking ale with a number of stablemen, giving them such ridiculous toasts as “Bad luck to fortune.” Some of them tried to get a story of his crimes from him, but he declined to say anything about them, as he declared he had said enough about that before, and had done his duty in Edinburgh.
It was deemed impossible to drive the mail along the High Street, when the time of departure arrived, if Hare were in it, with safety to the other persons connected with it, for the people had laid their plans for the attack. They intended stopping the coach at the bridge and throwing Hare into the river, or failing that, they had closed the gates at Cassylands toll-bar where they proposed to deal with him in another manner. Two passengers were sent forward a part of the way in a gig, and the coach left the inn empty. The mob surrounded it, but their fury was only intensified to find that the West Port murderer was not in it. The coach was allowed to proceed, and attention was again turned to the inn, towards which a large number pressed their way.An old woman attempted to strike at “the villain” with her umbrella, and another, after exhausting herself with verbal abuse, seized him by the collar of the coat and gave him such a shaking that he was nearly strangled. An hostler addressed the now trembling Hare:—“Whaur are ye gaun, man? or whaur can ye gang tae? Hell’s ower guid for ye. The very deevils, for fear o’ mischief, widna daur to let ye in; and as for heaven, that’s entirely oot o’ the question.” As he crouched in a corner a small boy menaced him, and was backed up by the crowd, who enjoyed the sight. Hare at last became so thoroughly exasperated that he told his tormentors to “come on,” and give him “fair play.” The tormenting to which he was subject became unbearable, and he seized his bundle and walked towards the door, determined, as he said, to let the mob “tak’ their will o’ him,” but in this effort he was checked by a medical man who happened to be present.
The position of affairs in Dumfries had now become positively alarming, and Mr. Fraser, the landlord of the King’s Arms, saw that while his obnoxious guest remained in his house it was in danger of being wrecked, and he was therefore naturally anxious for his removal. In fact the whole town and neighbourhood were completely convulsed, and it was impossible to tell what might be the next movement on the part of the excited people. The burgh magistrates met to deliberate upon some plan for preserving the peace of the town. After long consideration they agreed upon a plan which ran every risk of failure, but which was perhaps the only one they could have adopted.
A chaise and pair drove up to the door of the King’s Arms, between two and three o’clock in the afternoon. A trunk was buckled to it, and a great fuss was made. While these movements were going on before the people to attract their attention from what was the really important part of the magisterial plan, Hare slipped out of a back window, crept along by the stable-wall to a chaise in readiness to receive him. Once he was in, the doors were closed, the postilion whipped his horses to the gallop, and drove rapidly along the street towards the river. The mob having received a hint of what was going on from a few boys who had been lounging about the inn stables,made after the chaise with a rush. Volleys of stones were thrown at it, and some of the missiles went through the windows of the vehicle, narrowly missing Hare, who cowered at the bottom of it. On the horses flew, and, taking a turn sharply, the coach was nearly overturned, but after running a short distance on two wheels it righted. At the bridge the fugitives were almost intercepted, but the people were too late. After some furious driving, the jail door was reached, and the governor, having been informed that he might expect a distinguished guest, opened the door immediately. Hare sprang out of the chaise, and in past a strong chain that had been placed behind the prison gate for greater security against a rush of the mob. “Into this gulf he leapt,” said theDumfries Courierof the following week, “hop, step, and jump, a thousand times more happy to get into prison than the majority of criminals are to get out of it.”
The people now saw how they had been deceived, and they were furious with rage and disappointment. Hare, if he fell into their hands now could not hope to escape; but, fortunately for him, the high strong walls of the prison were between him and the excited populace. The mob laid siege to the jail, blocked up all the door and gateway, and no one could pass out or in without considerable personal risk. This began at four o’clock in the afternoon, and for four hours later the angry mob howled and shouted, and even sought to break down the prison gates with a heavy piece of iron which they used as a battering-ram. When the street lamps in the vicinity were lighted at nightfall, they were immediately extinguished by some of the rioters, many of whom had now come to the conclusion that the best means they could adopt for forcing a surrender was to burn down the gate by lighted tar barrels and peats. About eight o’clock in the evening, however, the magistrates had made arrangements for dispersing the people. The militia staff and the police force had been found quite insufficient to quell the disturbance. A hundred special constables were therefore sworn-in, and were drafted to assist in the preservation of the peace. The augmented force quickly cleared the streets, and the people, tired and exhausted with their exciting day’s employment, at lastreluctantly retired to their homes. But their efforts were plainly manifest in the amount of wreckage about the town, and scarcely a window in the prison or its neighbourhood was intact.
While the tumult was at its height, Hare, fatigued and weary, slipped away to the bed provided for him, and soon he was fast asleep, for he had had no rest since leaving Calton Jail in Edinburgh. About one o’clock on Saturday morning he was wakened by the officials, who told him that, now the town was quiet, he must depart immediately. Trembling violently, he put on his clothes, and before leaving asked for his cloak and bundle. But these had been left at the inn, and were not at hand. The officers said he must do without them, and thank his stars into the bargain that he had escaped with whole bones. They also advised him that—as the whole of Galloway was in arms, and as the mail-coach had been stopped and searched the day before at Crocketford toll-bar, probably, also, at every other stage between Dumfries and Portpatrick—he would be better to take a different road. With this advice he set out on his journey on foot, and by three o’clock in the morning he was seen by a boy passing Dodbeck. By daybreak he was probably over the border. On Saturday and Sunday it was reported that Hare’s identity had been discovered at Annan, and that he had been stoned to death; but this was a mistake, for the driver of the English mail, on his return journey, saw him seated on the roadside within half-a-mile of Carlisle shortly after five o’clock on Saturday afternoon. The fugitive was then seated talking to two stone-breakers, and as the coach passed he held down his head, but was recognised by the driver and an outside passenger. On the Sunday morning he was again seen about two miles beyond Carlisle, having skirted the city, the inhabitants of which were stated to be prepared to give him as cordial reception as the men of Dumfries. It is believed that after this Hare turned eastwards towards Newcastle, but as a matter of fact nothing is authoritatively known of his subsequent movements.
There is a story which an old resident of the east end of Glasgow, who died over eighty years of age, in the autumn oflast year (1883), used to tell with great gusto. In his younger days this old gentleman was of a wandering disposition, and travelled on foot over the greater part of the island. In the spring of 1829 he passed through Berwick-on-Tweed, and put up for the night at a lodging-house there. He was told by the landlady that he could not have a bed for himself, but would require to sleep with another lodger who was, of course, a stranger to him. On retiring to the room, M‘A——, the Glaswegian, found that his bed-fellow was before him, and was sound asleep. This, however, was of little consequence, and he was soon himself in a similar condition. In the middle of the night he was awakened by his companion grasping him firmly by the throat, and, greatly alarmed, he flung off his assailant, sprung out of bed, and demanded to know what such behaviour meant. The stranger replied, in an apologetic tone, that he must have had the nightmare, for he knew nothing about what he was doing until he was thrown off. After a little conversation the two men became quite friendly, and again retired to rest. The night passed without further incident. In the morning, when he awoke, M‘A—— found that his bed-fellow was gone. He told the landlady at breakfast of the adventure, and she then informed him that the man with whom he had slept was none other than the notorious Hare. He shivered with horror, but the danger was past, and, for more than half a century, M‘A—— told how in his youth he had spent a night with Hare, the accomplice of Burke. If the identification was correct, it was probably the case that Hare was really suffering from the nightmare, for it is not at all likely that he would attempt murder among strangers so soon after his narrow escape in Edinburgh.
In the preceding pages the story of Hare’s departure from Scotland has been told, very much as given to the world in the columns of theDumfries Courier; but the ballad-makers had another version which may prove interesting now, as it did at the time of its publication. Here are a few verses:—
“Dark was the mid-night, when Hare fled away,Not a star in the sky gave him one cheering ray,But still now and then blue lightning did glare,And strange shrieks assailed him like shrieks of despair.“But still as the fugitive ran down the wild glen,Not a place did he fear like the dwellings of men;Where a heap lay before him all dismal and bareThe ghost of Daft Jamie appeared to him there.“‘I am come,’ says the shade, ‘from the land of the dead,Though there be for poor Jamie no grass-covered bed;O’er hills and o’er valleys I’ll watch thee for ill,I will haunt all thy wanderings, and follow thee still.“............‘I am come to remind you of deeds that are past,And tell you that Justice will find you at last.“‘When night darkens the world, oh, how can you sleep?In your dreams do you ne’er see my poor mother weep?And long will she weep, and long will she mourn,Till her wandering Jamie from the grave can return.“‘From the grave, did I say? Ah, calm is the bedWhere sleepless and dreamless lie the bones of the dead;Their friends may lament them, and their sorrows may be,But no grave grows green in the wide world for me.“‘Oh, Hare, go and cover your fugitive head,In some land you’re not known by the living or dead;For the living against thee will justly combine,And the dead will despise such a body as thine.’”
The Confessions of Burke—The Interdicts against the “Edinburgh Evening Courant”—Burke’s Note on the “Courant” Confession—Issue of the Official Document—Publication of both Confessions.
The Confessions of Burke—The Interdicts against the “Edinburgh Evening Courant”—Burke’s Note on the “Courant” Confession—Issue of the Official Document—Publication of both Confessions.
Passing mention was made in a previous chapter of the confessions of his crimes made by Burke while he was in prison awaiting the time fixed for carrying out the final sentencepassed upon him by the High Court of Justiciary, and it was then stated that the curious history of the second, orCourant, confession, must be reserved for the proper time. Part of that history has already been related, for it has been seen how, when theCourantannounced the Monday before Burke’s execution that that document would be published in its columns on the following Thursday, the High Court granted interdict prohibiting the publication until the proceedings against Hare were concluded. TheCourantbowed to this decision, but promised at the same time to lay before its readers the interesting paper as soon as possible.
This, however, was only the beginning of the difficulty. In its issue of Thursday, 5th of February, theCourantstated that the interdict granted by the High Court of Justiciary, on the application of Mr. Duncan M‘Neill, as counsel for Hare, having expired on the Monday previous (the 2nd of February), the publishers fully intended to have inserted the confession by Burke in their paper of that day. But, unfortunately, they had been laid under a new interdict by the Sheriff, at the instance of Mr. J. Smith, S.S.C. This Mr. Smith was the gentleman who had applied to the Lord Advocate some weeks before for permission to visit Burke in prison for the purpose of receiving from him a full confession of his crimes, and who, on being refused, had unsuccessfully appealed to the Home Secretary. On Tuesday, 3rd February, this gentleman applied to the Sheriff, craving that theCourantbe interdicted from publishing the confessions of Burke. The application was founded upon an allegation that the document in the possession of the editor of theCourantwas intended by Burke to be delivered to Mr. Smith, and had been given by the condemned man to a fellow-prisoner named Ewart for that purpose. Ewart entrusted it to the care of Wilson, a turnkey, who had disposed of it to the editor of theCourant. By this means, it was alleged, the intention of Burke was defeated; and it was further stated that the night before his execution, in the presence of Bailie Small, Mr. Porteous, and Mr. James Burn, Burke signed a document authorising Mr. Smith to uplift from the editor of theCourantthe declaration now under discussion. This paper was in these terms:—“The document or narrative, which Isigned for —— Ewart, was correct, so far as I had time to examine it; but it was given under the express stipulation that it should not be published for three months after my decease. I authorise J. Smith to insist upon the delivery of the paper above alluded to from theCourant, or any other person in whose possession it may be; and, at the same time, I desire Bailie Small to be present when the papers are demanded and got up, and that they may be taken to the Sheriff’s office and compared with my declaration made before the Sheriff, which is the only full statement that can be relied on.” The Sheriff granted interdict, but on the following day a petition was presented on behalf of theCourantpraying for its recall. In support of this it was stated that Wilson, the turnkey, had disposed of the confession to the editor of that journal for a fair price, while the document itself had not come unfairly into his hands. The question of the right or power of a condemned criminal to bequeath property of any description was also raised, but was not seriously entered into. The Sheriff, however, did not see his way to recall the interdict, and said it was worthy of some attention whether the document given to Ewart was not to be published until three months after the death of Burke.
But whatever may have been the method adopted by theCourantto obtain possession of the confession, it is at least certain that the document, though its publication for a time was laid under interdict, was not uplifted, and that it was ultimately issued to the public long before the period stipulated for by Burke. This was probably due to the fact that a new set of outside circumstances emerged which rendered it imperative that the private confession should be published if any profit was to be gained or enterprise shown. The Lord Advocate had given orders for the issue of the official confession to all the newspapers, and the competitors for the ownership of the other document were thus forced to come to a mutual arrangement.
On the 5th of February, the day on which Hare was liberated, the Sheriff addressed a letter to the Lord Provost of Edinburgh, in the course of which he said:—“As it is now fully understood that all proceedings of a criminal natureagainst William Hare have terminated, it has appeared to the Lord Advocate that the community have a right to expect a disclosure of the contents of the confessions made by William Burke after his conviction. I have, therefore, to place those confessions in your lordship’s hands with the view to their being given to the public, at such a time, and in such a manner, as you may deem most advisable.... It may be satisfactory to your lordship to know, that in the information which Hare gave to the Sheriff on the 1st December last (while he imputed to Burke the active part in the deeds which the latter now assigns to Hare), Hare disclosed nearly the same crimes in point of number, of time, and of the description of persons murdered, which Burke has thus confessed; and in the few particulars in which they differed, no collateral evidence could be obtained calculated to show which of them was in the right. Your lordship will not be displeased to learn, that after a very full and anxious inquiry, now only about to be concluded, no circumstances have transpired, calculated to show that any other persons have lent themselves to such practices in this city, or its vicinity; and that there is no reason to believe that any other crimes have been committed by Burke and Hare, excepting those contained in the frightful catalogue to which they have confessed.”
This action on the part of the Lord Advocate was simply a formal way of making the public aware of the contents of the confession, the Lord Provost being the official representative of the citizens of Edinburgh. He, in his turn, sent the document to the newspapers for publication. Of course, when the people read it they would be initiated into the secrets of the conspiracy engaged in by Burke and Hare, and theCourantmanagers saw that it would forestall their confession, even though it was fuller in detail. There must have been a hasty consultation with Mr. Smith, for on Saturday, the 7th February, the two confessions appeared in that journal, accompanied by the following editorial note:—
“The interdict of the Sheriff on the publication of the confession and declaration of Burke, which has been for some time in our possession, having been withdrawn in consequence of a mutual compromise, we now publish this document, along witha declaration signed before the Sheriff, and sent by him to the Lord Provost for publication the day after he had pronounced an interdict against theCourant. It will be observed that the declaration before the Sheriff is dry and meagre in its details. The declaration which we publish is much fuller, and contains minute and striking circumstances which were never before laid before the public. The publication of this declaration and confession has been delayed by various proceedings; of which, however vexatious, we are not disposed to complain. The interdict of the Court of Justiciary being deemed essential to the ends of justice, we yielded an immediate and respectful obedience to this order. The first interdict by the Sheriff, at the instance of a private party, was granted as a matter of course; and that interdict, after our application to have it recalled, was continued by a well meant but erroneous judgment. However we might be disappointed by the decision, we did not conceive that we had any right to complain. But we certainly do complain, that, after the Sheriff had laid the declaration which we possessed under an interdict, he should, the very next day, have published, or sent for publication, another declaration. We complain of this the more, because the very ground on which he decided to continue the interdict against us was, that our interest would be less injured by delay than that of the other party by removing the interdict; and yet, in the face of this decision, he publishes a document which, for ought he knew, might be identically the same as ours, and by the publication of which our interest would not merely be injured, but utterly ruined. We certainly think that this is an extraordinary mode of procedure. A judge in the case first interdicts the publication of a certain confession or declaration, telling one of the parties that he cannot suffer much injury by the delay, and the very next day publishes a declaration by the same person, to the injury, perhaps to the utter destruction of any interest the party had in the matter at issue. We really think that the dangers of delay are here exemplified in a very instructive manner; for if we had known that the very paper, as we could judge, about which parties were at issue, would be published the next day by the Sheriff himself, how would this havestrengthened our argument against the continuance of the interdict? Such are the facts of the case; considering them carefully, they certainly appear to be somewhat irregular; and the effect was certainly calculated to prejudice, nay, to ruin our interest, if the paper in the possession of the Sheriff had not been so meagre and unsatisfactory, compared with the declaration we publish.”
TheCourantshowed its annoyance at the turn affairs had taken, but while doing so it made every effort, and that successfully, to outstrip its contemporaries. Besides publishing the two confessions in full, it gave afac simileof the note in Burke’s handwriting, appended to the document in their own possession, over which there had been so much dispute. There is one thing in favour of theCourant, or unofficial, confession, and that is the paper signed by Burke the night before his execution. He there testifies as to its accuracy, so far as he had had time to examine it. At the same time, in view of the many discrepancies between the two documents themselves, and what was brought out by subsequent investigation, it must be admitted that in many respects they are defective as records of the terrible series of crimes in which Burke and Hare participated.
Burke’s Confession before the Sheriff—A Record of the Murders—The Method—Complicity of the Women and the Doctors—Murderers but not Body-Snatchers.
Burke’s Confession before the Sheriff—A Record of the Murders—The Method—Complicity of the Women and the Doctors—Murderers but not Body-Snatchers.
The official confession of Burke was made in the condemned cell by the criminal on the 3rd of January, 1829, in the presence of Mr. George Tait, Sheriff-substitute; Mr. Archibald Scott, Procurator-fiscal; and Mr. Richard J. Moxey, assistant Sheriff-clerk. The following is a copy of the document:—
“Compeared William Burke, at present under sentence of death in the jail of Edinburgh, states that he never saw Hare till the Hallow-fair before last [November, 1827,] when he and Helen M‘Dougal met Hare’s wife, with whom he was previously acquainted, on the street; they had a dram, and he mentioned he had an intention to go to the west country to endeavour to get employment as a cobbler; but Hare’s wife suggested that they had a small room in their house which might suit him and M‘Dougal, and that he might follow his trade of a cobbler in Edinburgh; and he went to Hare’s house, and continued to live there, and got employment as a cobbler.
“An old pensioner, named Donald, lived in the house about Christmas, 1827; he was in bad health, and died a short time before his quarter’s pension was due: that he owed Hare £4; and a day or two after the pensioner’s death, Hare proposed that his body should be sold to the doctors, and that the declarant should get a share of the price. Declarant said it would be impossible to do it, because the man would be coming in with the coffin immediately; but after the body was put in the coffin, and the lid was nailed down, Hare started the lid with a chisel, and he and declarant took out the corpse and concealed it in the bed, and put tanner’s bark from behind the house into the coffin, and covered it with a sheet, and nailed down the lid of the coffin, and the coffin was then carried away for interment. That Hare did not appear to have been concerned in anything of the kind before, and seemed to be at a loss how to get the body disposed of; and he and Hare went in the evening to the yard of the College, and saw a person like a student there, and the declarant asked him if there were any of Dr. Monro’s men about, because he did not know there was any other way of disposing of a dead body—nor did Hare. The young man asked what they wanted with Dr. Monro, and the declarant told him that he had a subject to dispose of, and the young man referred him to Dr. Knox, No. 10 Surgeon’s Square; and they went there, and saw young gentlemen, whom he now knows to be Jones, Miller, and Ferguson, and told them that they had a subject to dispose of, but they did not ask how they had obtained it; and they told the declarantand Hare to come back when it was dark, and that they themselves would find a porter to carry it. Declarant and Hare went home and put the body into a sack, and carried it to Surgeon’s Square, and not knowing how to dispose of it, laid it down at the door of the cellar, and went up to the room, where the three young men saw them, and told them to bring up the body to the room, which they did; and they took the body out of the sack, and laid it on the dissecting table: That the shirt was on the body, but the young man asked no questions as to that; and the declarant and Hare, at their request, took off the shirt, and got £7 10s. Dr. Knox came in after the shirt was taken off, and looked at the body, and proposed they should get £7 10s., and authorized Jones to settle with them; and he asked no questions as to how the body had been obtained. Hare got £4 5s. and the declarant got £3 5s. Jones, &c., said that they would be glad to see them again when they had any other body to dispose of.
“Early last spring, 1828, a woman from Gilmerton came to Hare’s house as a nightly lodger,—Hare keeping seven beds for lodgers: That she was a stranger, and she and Hare became merry, and drank together; and next morning she was very ill in consequence of what she had got, and she sent for some drink, and she and Hare drank together, and she became very sick and vomited; and at that time she had not risen from bed, and Hare then said that they would try and smother her in order to dispose of her body to the doctors: That she was lying on her back in the bed, and quite insensible from drink, and Hare clapped his hand on her mouth and nose, and the declarant laid himself across her body, in order to prevent her making any disturbance—and she never stirred; and they took her out of bed and undressed her, and put her into a sheet; and they mentioned to Dr. Knox’s young men that they had another subject; and Mr. Miller sent a porter to meet them in the evening at the back of the Castle; and declarant and Hare carried the chest till they met the porter, and they accompanied the porter with the chest to Dr. Knox’s class-room, and Dr. Knox came in when they were there: the body was cold and stiff. Dr. Knox approved of its being so fresh, but did not ask any questions.
“The next was a man named Joseph, a miller, who had been lying badly in the house: that he got some drink from declarant and Hare, but was not tipsy: he was very ill, lying in bed, and could not speak sometimes, and there was a report that there was fever in the house, which made Hare and his wife uneasy in case it should keep away lodgers, and they (declarant and Hare) agreed that they should suffocate him for the same purpose; and the declarant got a small pillow and laid it across Joseph’s mouth, and Hare lay across the body to keep down the arms and legs; and he was disposed of in the same manner, to the same persons, and the body was carried by the porter who carried the last body.
“In May, 1828, as he thinks, an old woman came to the house as a lodger, and she was the worse of drink, and she got more drink of her own accord, and she became very drunk, and declarant suffocated her; and Hare was not in the house at the time; and she was disposed of in the same manner.
“Soon afterwards an Englishman lodged there for some nights, and was ill of the jaundice: that he was in bed very unwell, and Hare and declarant got above him and held him down, and by holding his mouth suffocated him, and disposed of him in the same manner.
“Shortly afterwards an old woman named Haldane (but he knows nothing further of her), lodged in the house, and she had got some drink at the time, and got more to intoxicate her, and he and Hare suffocated her, and disposed of her in the same manner.
“About Midsummer, 1828, a woman with her son or grandson, about twelve years of age, and who seemed to be weak in his mind, came to the house as lodgers; the woman got a dram, and when in bed asleep, he and Hare suffocated her; and the boy was sitting at the fire in the kitchen, and he and Hare took hold of him, and carried him into the room, and suffocated him. They were put into a herring barrel the same night, and carried to Dr. Knox’s rooms.
“That, soon afterwards the declarant brought a woman to the house as a lodger; and after some days she got drunk, and was disposed of in the same manner: That declarant andHare generally tried if lodgers would drink, and if they would drink, they were disposed of in that manner.
“The declarant then went for a few days to the house of Helen M‘Dougal’s father, and when he returned, he learned from Hare that he had disposed of a woman in the declarant’s absence, in the same manner, in his own house; but the declarant does not know the woman’s name, or any further particulars of the case, or whether any other person was present or knew of it.
“That about this time he went to live in Broggan’s house, and a woman named Margaret Haldane, daughter of the woman Haldane before mentioned, and whose sister is married to Clark, a tin-smith in the High Street, came into the house, but the declarant does not remember for what purpose; she got drink, and was disposed of in the same manner: That Hare was not present, and neither Broggan nor his son knew the least thing about that or any other case of the same kind.
“That in April, 1828, he fell in with the girl Paterson and her companion in Constantine Burke’s house, and they had breakfast together, and he sent for Hare, and he and Hare disposed of her in the same manner; and Mr. Ferguson and a tall lad, who seemed to have known the woman by sight, asked where they had got the body; and the declarant said he had purchased it from an old woman at the back of the Canongate. The body was disposed of five or six hours after the girl was killed, and it was cold, but not very stiff, but he does not remember of any remarks being made about the body being warm.
“One day in September or October, 1828, a washer-woman had been washing in the house for some time, and he and Hare suffocated her, and disposed of her in the same manner.
“Soon afterwards, a woman named M‘Dougal, who was a distant relation of Helen M‘Dougal’s first husband, came to Broggan’s house to see M‘Dougal; and after she had been coming and going to the house for a few days, she got drunk, and was served in the same way by the declarant and Hare.
“That ‘Daft Jamie’ was then disposed of in the manner mentioned in the indictment, except that Hare was concerned in it. That Hare was lying alongside of Jamie in the bed, andHare suddenly turned on him, and put his hand on his mouth and nose; and Jamie, who had got drink, but was not drunk, made a terrible resistance, and he and Hare fell from the bed together, Hare still keeping hold of Jamie’s mouth and nose; and as they lay on the floor together, declarant lay across Jamie, to prevent him from resisting, and they held him in that state till he was dead, and he was disposed of in the same manner; and Hare took a brass snuff-box and a spoon from Jamie’s pocket, and kept the box to himself, and never gave it to the declarant—but he gave him the spoon.
“And the last was the old woman Docherty, for whose murder he has been convicted. That she was not put to death in the manner deponed to by Hare on the trial. That during the scuffle between him and Hare, in the course of which he was nearly strangled by Hare, Docherty had crept among the straw, and after the scuffle was over they had some drink, and after that they both went forward to where the woman was lying sleeping, and Hare went forward first, and seized her by the mouth and nose, as on former occasions; and at the same time the declarant lay across her, and she had no opportunity of making any noise; and before she was dead, one or other of them, he does not recollect which, took hold of her by the throat. That while he and Hare were struggling, which was a real scuffle, M‘Dougal opened the door of the apartment, and went into the inner passage and knocked at the door, and called out police and murder, but soon came back; and at the same time Hare’s wife called out never to mind, because declarant and Hare would not hurt one another. That whenever he and Hare rose and went towards the straw where Docherty was lying, M‘Dougal and Hare’s wife, who, he thinks, were lying in bed at the time, or, perhaps, were at the fire, immediately rose and left the house, but did not make any noise, so far as he heard, and he was surprised at their going out at that time, because he did not see how they could have any suspicion of what they (the declarant and Hare) intended doing. That he cannot say whether he and Hare would have killed Docherty or not, if the women had remained, because they were so determined to kill the woman, the drink being in their head;—and he has no knowledge or suspicion of Docherty’s body having beenoffered to any person besides Dr. Knox; and he does not suspect that Paterson would offer the body to any other person than Dr. Knox.
“Declares, that suffocation was not suggested to them by any person as a mode of killing, but occurred to Hare on the first occasion before mentioned, and was continued afterwards because it was effectual, and showed no marks; and when they lay across the body at the same time, that was not suggested to them by any person, for they never spoke to any person on such a subject; and it was not done for the purpose of preventing the person from breathing, but was only done for the purpose of keeping down the person’s arms and thighs, to prevent the person struggling.
“Declares, that with the exception of the body of Docherty, they never took the person by the throat, and they never leapt upon them; and declares that there were no marks of violence on any of the subjects, and they were sufficiently cold to prevent any suspicion on the part of the doctors; and, at all events, they might be cold and stiff enough before the box was opened up, and he and Hare always told some story of their having purchased the subjects from some relation or other person who had the means of disposing of them, about different parts of the town, and the statements which they made were such as to prevent the doctors having any suspicions; and no suspicions were expressed by Dr. Knox or any of his assistants, and no questions asked tending to show that they had suspicion.
“Declares, that M‘Dougal and Hare’s wife were no way concerned in any of the murders, and neither of them knew of anything of the kind being intended even in the case of Docherty; and although these two women may latterly have had some suspicion in their own minds that the declarant and Hare were concerned in lifting dead bodies, he does not think they could have any suspicion that he and Hare were concerned in committing murders.
“Declares, that none of the subjects which they had procured, as before mentioned, were offered to any other person than Dr. Knox’s assistants, and he and Hare had very little communication with Dr. Knox himself; and declares, that hehas not the smallest suspicion of any other person in this, or in any other country, except Hare and himself, being concerned in killing persons and offering their bodies for dissection; and he never knew or heard of such a thing having been done before.”
This declaration was signed by Sheriff Tait and Burke. It is curious to notice how, in it, the criminal endeavours in almost every instance to bring out Hare as the chief actor in the horrible events he describes in such a fragmentary way; but it will be remembered that Burke, several times between his conviction and execution, said he would be happy if he were certain Hare would also become a subject for the scaffold. There is little reason to doubt that, had the opportunity been afforded him, he would have turned informer himself, and twisted events in such a way as to have condemned Hare.
About three weeks later, on the 22nd January, Burke was again before the gentlemen to whom he made his confession on the 3rd of the same month. But there was an addition to the company in the person of the Rev. Mr. Reid, the Catholic priest, who had regularly attended him since his condemnation. This gentleman was requested to be present, as the Sheriff said in his letter to the Lord Provost, in order to give the confession “every degree of authenticity.” On this occasion, Burke, having expressed his adherence to his former declaration—
“Declares further, that he does not know the names and descriptions of any of the persons who were destroyed except as mentioned in his former declaration. Declares, that he was never concerned in any other act of the same kind, nor made any attempt or preparation to commit such, and all reports of a contrary tendency, some of which he has heard, are groundless. And he does not know of Hare being concerned in any such, except as mentioned in his former declaration; and he does not know of any persons being murdered for the purpose of dissection by any other persons than himself and Hare, and if any persons have disappeared anywhere in Scotland, England, or Ireland, he knows nothing whatever about it, and never heard of such a thing till he was apprehended. Declares, that he never had any instrument in his house except a commontable knife, or a knife used by him in his trade as a shoemaker, or a small pocket knife, and he never used any of those instruments, or attempted to do so, on any of the persons who were destroyed. Declares, that neither he nor Hare, so far as he knows, ever were concerned in supplying any subjects for dissection except those before mentioned; and, in particular, never did so by raising dead bodies from the grave. Declares, that they never allowed Dr. Knox, or any of his assistants, to know exactly where their houses were, but Paterson, Dr. Knox’s porter or door-keeper, knew.”