WILLIAM HARE.

WILLIAM HARE,as he appeared in the witness-box,taken in Court.Published by Thomas Ireland Junr. Edinburgh.

WILLIAM HARE,

as he appeared in the witness-box,taken in Court.

Published by Thomas Ireland Junr. Edinburgh.

The proceedings referred to originated in an application for Hare, to the Sheriff of Edinburgh, on the 20th of Jan. 1829. His petition was to the following effect:—

That of this date (November 10, 1828) he was apprehended on a warrant of the Sheriff-Substitute, granted on the application of the Procurator Fiscal of the county, and was committed to the jail of Edinburgh a prisoner, on acharge of murder: That the petitioner was examined before the Sheriff-Substitute of the county in relation to various acts of murder alleged, or suspected to have been committed by William Burke, then in custody, and other persons: That in the course of these examinations, the petitioner was assured by the Public Prosecutor, that if he made a full disclosure of all he knew relative to the several alleged murders which formed the subject of inquiry, no criminal proceedings would be instituted against the petitioner himself in relation thereto, whatever might be the circumstances of suspicion or apparent participation or guiltiness appearing against him: That the petitioner was examined as a witness, and without the caution and warning which it is the duty of the Judge-examinator to give to a party accused, every time he is brought up for examination; and the petitioner made a full and true disclosure of all he knew, and gave every information he possessed, in relation to all the alleged murders as to which he was examined; and this he did under the assurance of personal and individual safety: That one of the alleged murders, as to which the petitioner was so examined, was that of a person described as James Wilson, commonly known by the name of Daft Jamie; and in relation to that matter, as well as in relation to all the others, the petitioner made a full and true statement, and gave every information he possessed, whether relative to the alleged act of murder itself, or the means of obtaining or tracing any circumstances of evidence in relation thereto; and all this he did, relying on the assurance of personal and individual safety above mentioned, and the compact and transaction thence arising: That, in consequence of the statement and information thus elicited from, and procured through the petitioner, the said William Burke was indicted to stand trial before the High Court of Justiciary in the month of Decemberlast, on a libel setting forth three charges of murder, as to all of which the petitioner had been precognosced as aforesaid: That one of these three charges was the foresaid alleged murder of James Wilson, alias Daft Jamie: That the petitioner was included in the list of witnesses for the prosecution, annexed to the said libel; and he was cited to attend as a witness for the prosecution, in relation to all the charges therein contained. The libel was found relevant to infer the pains of law; and the Public Prosecutor having proceeded to lead evidence against William Burke, and another prisoner, as to one of the charges, (being the murder of Mary Docherty), the petitioner was called in, sworn, and examined as a witness for the prosecution. On that occasion the petitioner stated many things in evidence which he would not have stated, and could not have been required to state, but for the perfect assurance of personal security given him by the Public Prosecutor, not only as to the murder of Mary Docherty, but likewise from any prosecution as to the murders charged in that indictment, and which was laid down and confirmed from the Bench on the said trial. It was then stated from the chair of the Court, as the decided opinion of the whole Bench present, that the petitioner was fully protected by law against either trial or punishment for any of the charges contained in that indictment: That notwithstanding the compact with the Public Prosecutor, under which the petitioner was induced to make disclosures of great importance to the public interest, and to the administration of justice, but which were calculated to involve himself in circumstances of suspicion and hazard, in which he could not otherwise have been involved; and notwithstanding the assurance of personal safety held out to the petitioner from the bench, criminal proceedings have, within these few days, been instituted against the petitioner, at the instance of JanetWilson alleged sister, and Janet Wilson alleged mother, of the said James Wilson,aliasDaft Jamie, but who, the petitioner is informed, and has reason to believe, do not truly possess these characters, and have produced no evidence thereof; and he has been examined before the Sheriff-Substitute as a party accused of that offence, and is now aclose prisonerin the jail of Edinburgh, committed for further examination as to that charge of murder: That, under the circumstances above detailed, the petitioner is advised that the proceedings thus instituted against him are incompetent, irregular, oppressive, and illegal; and that the warrant on which he is committed at the instance of the said Janet Wilson is illegal, and that he is entitled to immediate liberation: That the petitioner has been informed, that the said Janet Wilson, alleged mother, and Janet Wilson, alleged sister, have applied for and obtained the authority of your Lordship to lead a precognition and examine witnesses as to the petitioner’s alleged guiltiness of the said charge. And that anex parteexamination of witnesses is actually going on under the authority and force of your Lordship’s power and compulsitor, in absence of the petitioner, who is shut up aclose prisoneras aforesaid. The petitioner has been advised that this proceeding also is incompetent, irregular, and illegal, and highly oppressive and injurious.

The petitioner prayed the Sheriff,inter alia, to recall the warrant on which the petitioner is committed, and to ordain him to be set at liberty; also to put a stop to the foresaid precognition or examination of witnesses, and to ordain the same, in so far as it has already proceeded, to be delivered to the clerk of Court.

Upon which the Sheriff pronounced an order for service immediately on Mr. George Monro, solicitor, Supreme Courts, agent for Janet Wilson; and appoints to-morrow,at two o’clock afternoon, for hearing counsel or agents for the petitioner, and for Janet Wilson in the Sheriff’s Office; and, in the mean time, sists farther proceedings in the precognition at the instance of the said Janet Wilson.

The case was accordingly heard by the Sheriff, when Mr. Jeffrey opposed the liberation, and Mr. M‘Neill supported the petition. After hearing counsel,

TheSheriffsaid, this is a new point. I have always understood the right of the private party to be as great as that of the Public Prosecutor. I do not think the private party is prevented from investigating by any guarantee given by the Public Prosecutor; and therefore refuse the petition for Hare, reserving his right to apply to the Court of Justiciary, for which purpose I shall sist proceedings for two days. The question is new and delicate, but I see no reason for stopping proceedings.

Mr.Millerthen stated that the respondent’s agent had got authority from the Lord Provost to examine Burke, but just as he was about to enter the prison, a note was put into his hand by the Governor from the Magistrates, stating that until the judgment of the Sheriff was known, access could not be given. The urgency of the case, and the inapplicability of the objections to his examination were represented, and the Sheriff thought proper to provide for Burke’s examination by a note to his interlocutor, which was as follows:

“Edinburgh, 21st January 1829.—The Sheriff having resumed the consideration of the petition for William Hare, and having heard counsel for William Hare and the respondents, Janet Wilson, senior and junior: 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 noveltyof the case supersedes further proceedingsin the precognition before the Sheriff, at the instance of the respondents, till Friday night at seven o’clock, in order that William Hare may have an opportunity of applying to the Court of Justiciary.”

“Note.—The application which has been made to the Lord Provost for liberty to see Burke, by the private prosecutors, is not before us, but remains to be disposed of by the Lord Provost.”

This judgment of the Sheriff was brought under review of the Court of Justiciary by a bill of advocation, and of suspension and liberation for Hare, which came on for discussion before the Court on the 26th of the same month, when

TheLord Justice Clerksaid,—After having heard the counsel, I have now to state, that the Court have resolved, before giving their opinions, in the first place to make an order on the Lord Advocate to make any answer to this bill that he may see necessary. The Court desire to decide this question in the gravest manner, after seeing informations; and the counsel will make arrangements for giving them in as speedily as possible.

Informations were then ordered to be lodged on Saturday following.

In obedience to this order of Court, answers for the Lord Advocate, and Informations for Hare and the relatives of Wilson were accordingly lodged; and their Lordships, on the 2d February, proceeded to pronounce judgment on the very nice and important points of law embraced in the discussion.

The Lord Advocate’s Answer is as follows:

The Respondent has not failed to observe the guarded terms in which this order is conceived, calling upon him only to give such information as he shall deem proper,and thus relieving him from the necessity of questioning the power, even of this Court, to require, in this shape, a disclosure of the grounds on which the Public Prosecutor has been guided in the exercise of his official discretion. Influenced, however, by those feelings of respect which the respondent has ever endeavoured to evince towards this High Court, he readily submits the following statement, in deference to their wishes, on so extraordinary a case.

The murder of Mary Docherty took place on the night of Friday the 31st October last; and on the evening of the following day, William Burke, Helen M‘Dougal, William Hare, and Margaret Laird, his wife, were taken into custody. On Monday the 3d of November, Burke and M‘Dougal were examined before the Sheriff. These persons, as your Lordships have had occasion to know, denied all accession to the crime.

On the 4th of November, William Hare and Margaret Laird were examined by the Sheriff. In the declarations then emitted by them, they both positively denied all accession to the murder, and stated that Docherty had not received any violence from any person in their presence.

Hare and his wife were again examined by the Sheriff on the 10th of November.

They were athirdtime examined on the 19th of November.

At these examinations they firmly persevered in their former denial.

The precognition having been completed, was laid before the respondent, in order to be finally disposed of. A month had now elapsed since the date of the murder; during which period the four prisoners had been kept separately from each other, but no disclosure had been made by any of them, either as to the alleged murder, or as to the participation of any of the persons accused, in offering violenceto the deceased. After repeated and most anxious consideration of this extraordinary case, it appeared to the respondent that the evidence, including the examination of medical gentlemen, was defective, both as to the fact of Docherty having been murdered, and as to who was the perpetrator of the deed. Conceiving it of the greatest importance, for the satisfaction and security of the public, that a conviction should beensured, the respondent did not feel justified in hazarding a trial, on evidence which appeared to him to be thus defective. He well knew, from long experience, how scrupulous a Scottish Jury uniformly is, in finding a verdict of guilty where a capital punishment is to follow; and he deemed it hopeless to look for a conviction, where the fact of a murder having been committed was not put beyond the possibility of question.

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. Another consideration of still greater importance rendered this course indispensable.

Some circumstances about this time transpired, which led the respondent to dread, that at least one other case of a similar description had occurred. In such circumstances he felt it to be his imperative duty, not to rest satisfied without having the matter probed to the bottom; and that he should, for the sake of the public interest, have it ascertained what crimes of this revolting description had really been committed—who were concerned in them—whether the whole persons engaged in such transactions had been taken into custody, or if other gangs remained, whose practices might continue to endanger human life. Compared with such knowledge, even a conviction for the murder of Docherty appeared immaterial. But such information could not be obtained by bringing to trial allthe four persons accused. A conviction might lead to their punishment, but it could not secure such a disclosure.

After deliberately weighing all these matters it appeared to the respondent then, as it does to him now, that in the exercise of a sound discretion, and in the performance of his public duty, embracing equally the interest of the community at large, and of the relatives of injured parties, he had no choice left but to follow that course he had adopted.

The only matter for deliberation regarded which of the four should be selected as witnesses.

M‘Dougal positively refused to give any information.

The choice, therefore, rested between Hare and Burke; and from the information which the respondent possessed, it appeared to him then, as it does now, that Burke was the principal party, against whom it was the respondent’s duty to proceed. Hare was therefore chosen, and his wife was taken because he could not bear evidence against her.

This course having been resolved upon, an overture was made to Hare by the authority of the respondent, with the view to his becoming a witness, and the proposal which was so made to him—(and which did not proceed from him)—was accepted. He was in consequence brought to the Sheriff’s office on the 1st of December for examination, when, by the authority of the respondent, he received an assurance from 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 had no reference to one case more thananother. 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 instance, 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.

In consequence of this assurance, Hare emitted a declaration, detailing the circumstances connected with the murder of Mary Docherty, and with similar crimes, in which Burke had been engaged. Of these, the murder of James Wilson, and of Mary Paterson or Mitchell, were two; and it was from the facts which Hare so detailed, that evidence was obtained from unexceptionable witnesses, of such a nature as enabled the respondent to bring forward those two murders as substantive acts in the same indictment which charged Burke with the murder of Mary Docherty. By this proceeding, the respondent conceived that he had fully satisfied not only the ends of public justice, but the rights and feelings of all those who were connected with the unfortunate individuals thus referred to.

In the indictment, William Hare and his wife were inserted in the list of witnesses, along with all those persons whose evidence the respondent had been able to obtain in consequence of the disclosures which Hare had made. When the respondent entered the Court on the day oftrial, it was his full intention to examine Hare and his wife as to each of the three murders set forth in the indictment. How he was prevented from so doing the Court is already aware. Had Burke been acquitted of Docherty’s murder, the respondent must, in the discharge of his duty, have proceeded to try him on the other two charges; and in proof of both, Hare and his wife must have been examined as witnesses. As it was, they were both adduced on the trial, and it was from the information obtained from Hare, on the assurance of immunity, that the respondent conceives he was enabled to secure a conviction.

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.

In regard to the crimes so disclosed, whether they were included in the indictment against Burke or not, the respondent having, in the conscientious discharge of his duty, authorised the assurance to be given which has now been stated, apprehends that he is legally barred from prosecuting either of those persons at his instance, and he will not make any such attempt. He need not add that he should strongly feel such a proceeding, upon his part, as dishonourable in itself, unworthy of his office, and highly injurious to the administration of justice.

Having thus, in compliance with the order of your Lordships, given such information to the Court as he has deemed proper, in regard to the situation in which the Public Prosecutor stands, in reference to the murders set forth in the bill of advocation, the respondent has only toadd, that, upon perusing the said bill, he finds no statement in it which requires any answer on his part.

The information put in for Hare states that the question now to be resolved is, Whether the informant (Hare) is protected from farther criminal process in order to punishment, for the murder of James WilsonaliasDaft Jamie? It then narrates the facts and circumstances which have given rise to the question, and states the legal grounds on which Hare rests his application to the Court for liberation from prison, and at great length proceeds to submit the grounds of his plea, and concludes thus:—

The principles of law, and the direct and recent authority now stated are sufficient, it is submitted, to govern this case.

Even if the principle of law and the authority referred to had been less plain and satisfactory than they are, the informant might, with great confidence, have rested his case on the principles of “humanity, justice, and policy,” which are said, on the other side, to be at the foundation of the rule of law which secures protection to a witnesssocius criminis, and which, indeed, pervade, and are interwoven with, every part of the criminal law of Scotland, and may legally be appealed to in the absence of any other guide. Every thing adverse to these principles, and certainly everynoveltyadverse to them, must be repugnant to the spirit of the law. The proceedings which the informant now resists are of this character; while the prayer he has preferred to your Lordships is plainly in unison with those great principles which are at the foundation of our criminal code, and are intermingled with the administration of it. Your Lordships have before you the case of a prisoner who has had the misfortune to be accused by the Public Prosecutor of acts of murder, of which he may have been innocent or guilty. Let it be taken either way. Supposehim to be, as his adversaries describe him, a delinquent polluted by crimes of the blackest die—one of a fraternity who conspired against the lives of the lieges, and who carried on the work of blood with a secrecy and a success which the firmest cannot hear without trembling, or the hardiest without horror—let the prosecutors describe his character and his crimes in any language they please—still, in his case, as in every other, justice must be observed, and the law must be administered in the spirit of humanity, and with a view to future consequences. If he has really been a member of such a conspiracy as is alleged, the greater is the benefit which he has conferred upon the public, by laying open all the hidden acts and secret ramifications of that confederacy, and the greater the danger to which, in the event of trial, he has exposed himself by giving any information or any evidence whatever in regard to any of its transactions and deeds. But he made a compact with the representative of the interests of the public; and he has given to the public, by their representative, the benefit of all his knowledge of these transactions, in consideration of the community having released him from all claim for punishment. This compact having been acted upon—every information which the informant possessed having been drawn from him—he having been publicly called upon to appear as a witness in regard to the very murder now under consideration—he having been placed in the witness-box, and having publicly given evidence in relation to a part of those proceedings to which he is said to have been accessary, and having thereby publicly connected himself with the chief actor, whose conviction he ensured; and having exposed the system, and laid open the sources of evidence, and thus furnished the means of bringing himself to trial, if that were competent—borne down with difficulties and surrounded by perils, by whichhe would not otherwise have been environed—the strength of his defence impaired or taken away—is it consistent with humanity, or justice, or policy, that two individual members of the community, who all the while lay by without giving notice of such intention, should now come forward, to violate public faith, and to turn the information given for the benefit of the public against the life of him who gave it, in reliance on the compact he had entered into with the Public Prosecutor? Every principle of humanity, of justice, and of policy, is opposed to such a proceeding. There is no precedent—there is no authority for such a proceeding. The informant acted in the belief that he had secured his protection. The Public Prosecutor acted in the belief that he was entitled to secure, and had secured to him, that protection, and had done so for the ultimate benefit of the public, in securing the conviction and punishment of an offender. If both parties erred in their notions of the law, they erred in common with a quorum of your Lordships’ number, discharging the most important duty of the Supreme Criminal Court. If the law is now, for the first time, to be declared against that understanding and opinion, let the operation of this new declaration be confined tofuturecases—but let not this new state of things—this alteration of a deliberate judgment of the Supreme Court, operate to the prejudice and injury of the informant, when matters are, in respect to him, no longer entire. To do otherwise would be productive of no good object. The ends of justice would not be thereby promoted. Thepublic faith would be broken, and, above all, the informantcould not now have a fair trial. These considerations give him a sufficient claim to the interposition of your Lordships to prevent further proceedings against him.

The Information given in for the relatives of James Wilson is also of great length. It is there stated—

1. That the right of the private party to prosecute is not controllable by the Public Prosecutor, and is independent of him.

The prosecutors state this as a fundamental and constitutional principle in the criminal jurisprudence of Scotland. It is not an antiquated right, as stated by the counsel for the prisoner, but is recognised by the latest authorities, and is consistent with the most fundamental principles of our practice. There can therefore be no question as to the title of the prosecutors. They state themselves to be “the nearest kinsmen of the deceased, demanding the vengeance of the law on the body of the culprit if he is found to be a murderer.”

Legally speaking, there are only two situations in which a prisoner can actually plead indemnity in bar of trial, viz. Previous acquittal by a Jury, or remission by the Crown. These are the two constitutional modes of freeing an accused party from the consequences of alleged crime, and either of them is an effectual bar to trial, whether at the instance of the Public Prosecutor or of the private party. But the point which the prosecutors are anxious to establish is this, 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 his right of calling upon him 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 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. The assertion of the prosecutors, however is, that their legal right to investigate the circumstances attending thedeath of their near relation, and to indict the accused party, if they shall find sufficient ground to do so, cannot be interfered with by the proceedings of the Public Prosecutor, in circumstances over which they have no control. They say, that this doctrine must be held, because it flows as a necessary and irrefragable consequence from the constitutional right of prosecution, which has been proved to exist. If the right be in the private party, how can it be wrested from them, by the communications which pass between the criminal and a third party over whom they have no control, but to whom, on the other hand, the law gives no power of depriving them of that right of demanding justice and vengeance which it has vested in them?

In point of form, indeed, it is required that the Lord Advocate should grant his concourse to a prosecution before the High Court of Justiciary. But this form is established, not for the purpose of showing that his permission to prosecute is necessary, but for the purpose of showing that there is a public injury to be vindicated as well as a private party to be satisfied. Accordingly, the Lord Advocate has no right to refuse his concourse. If he should refuse, he can be compelled to grant it, for this very reason, that it is notin arbitrioof him to deprive the private party of his legal right. The law was so stated by Lord Alemore, on the complaint of Sir John Gordon against his Majesty’s Advocate, June the 21st 1766, and the same doctrine is laid down by our authorities.—[Here quotations in support of the above doctrine are introduced from Burnet, p. 300; and from Hume, vol. ii. p. 123.]

The Prosecutors pleaded, II. That thesocius criminisis only protected by the indulgence of the Court with regard to the particular crime as to which he gives evidence.

Formerly asocius criminiswas not received as an evidence in the criminal Courts of this country, because of the interest which he was supposed to have in establishing the guilt of the individual accused, and thus freeing himself from the imputation of the crime; and the practice which has lately crept in of affording an indemnity to the witness, for the crime as to which he has given evidence, does not appear to have been recognised until subsequent to the case of Jameson in 1770. In the case, accordingly, of Macdonald and Jameson in August 1770, when the objection of a witness having beensocius criminiswas fully debated, the Prosecutor in answer did not say that the witness, by being examined, would thereby be exempted from prosecution, but only that he might hope for impunity; while the usage, at that time, of granting special pardon, to accomplices for enabling them to give evidence, confirms what has been stated. At what period a different rule came to prevail does not appear. Baron Hume conceives that the practice may have commenced from the rule introduced by 21st Geo. II. cap. 25, as to a particular offence.

The doctrine maintained on the part of the prisoner is, that he is relieved, not only from the consequences attaching to his participation in the crime as to which he has been examined, but also as to others, in regard to which the same parties may have been implicated, but which have not been the subject of trial. This argument extends the doctrine of indemnity much farther than it has yet been carried. For the question underwent grave discussion, and the practice, as then followed by Public Prosecutors and recognised by the Bench, is distinctly stated by the Learned Judges in the case of Downie, who was tried for high treason in the year 1794. The discussion arose upon certain questions being put to a witness of thename of Aitcheson, tending to criminate himself. The danger had been pointed out by the Counsel for the prisoner, to which the course of the examination might lead, as the witness might confess that which was sufficient to convict him of the crime of treason. The doctrine laid down by the whole of these Learned Judges is this, that for what the individual told the Court as a witness, he could not afterwards be questioned; but they distinctly state, that if the witness, after being put into the box, refuses to answer, he would not have been entitled to any protection.

[The information then goes on to narrate the trial of Burke, the circumstances of which are already well known: after which it proceeds to the examination of the suspender, Hare, as a witness on the trial.] After administering the oath to the prisoner, who was brought forward as a witness upon the trial alluded to, Lord Meadowbank stated to him, “Now we observe that you are at present a prisoner in the Tolbooth of Edinburgh, and from what we know, the Court understands that you must have had some concern in the transaction now under investigation. It is therefore my duty to inform you, that whatever share you might have had in that transaction, if you speak the truth, you can never afterwards be questioned in a Court of Law.” Lord Justice Clerk—“You will understand, that you are called here as a witness regarding the death of an elderly woman of the name of Campbell or M‘Gonegal.” “You understand, that it is only with regard to her that you are now to speak?” To this question, the witness replied by asking, “T’ould woman, Sir?” Lord Justice Clerk, “Yes.” But what is perhaps of still greater importance, it will appear that he was not permitted to answer questions which might otherwise have been of importance to the individual then upontrial, upon the ground that he would not be protected upon so doing.

From all which these facts are indisputably established, viz. 1st, That the witness was examined as to no other murder than that of Docherty or Campbell. And 2dly, That he was distinctly warned that he was not bound to answer any question with regard to the other murders contained in the indictment, because as to any other murder except that under investigation, he was not protected by the Court.

The present question therefore stands thus: Hitherto a witness has only been protected from trial for the particular crime as to which he has given evidence. The prisoner has given none as to the crime of which he is now accused, and therefore he has not been placed in that situation which entitles him to the protection of the Court.

When the Court met on 2d February, the Bill of Advocation for Hare against the nearest of kin of James Wilson was called.

Mr. Jeffrey, addressing the Court, said, their Lordships would not suppose that he had any notion of resuming the argument, but the case was brought to such a point that he might be indulged in making one remark. It was maintained on the part of the suspender, that the Public Prosecutor was entitled to make a compact, to which compact their Lordships were bound to give effect; that their Lordships had no discretion, but that it rested entirely with the Lord Advocate to enter into any compact, and to extend immunity to any number of cases without the control of the Judge; in short, that the Lord Advocate possessed the uncontrolled power of exercising the Royal Prerogative;and this he might do, not merely with respect to the particular crime as to which asocius criminiswas to be used as a witness, but might extend it to all other crimes of which he may have been guilty. Whenever the Lord Advocate stipulated an immunity, it seemed to be maintained that a sufferer by housebreaking, fire-raising, or other crimes, was to be deprived of his right as a private party to prosecute the guilty perpetrator of the wrong, and that the Lord Advocate had a power to enter into a compact by which he could grant immunity for offences past and future, known or unknown. Such a prerogative would be investing the Public Prosecutor with a power of pardon, which only belonged to the Crown, and this too without a tittle of authority, and totally different from judicial authority, amounting to an assumption of the prerogatives of Parliament.

Mr. M‘Neill stated that he had no observations to make.

Lord Gillies expressed his thanks to the Learned Gentlemen who had argued this case. The papers were drawn with much care, and with an ability and promptness which did them the highest honour. His Lordship then alluded to the form in which the case came before the Court, and the prayer of the Bill, and stated the question to be, Whether they were to affirm the judgment of the Sheriff and refuse the prayer of the petition to that Judge for liberation, or to grant it and liberate the prisoner Hare? His Lordship considered the question of law to be an undecided and open question. The facts which gave rise to it were but too well known. They were of the most atrocious character—murders committed, not from the ordinary motive of revenge, or of robbery, or to escape from the punishment of other offences,—but its object was indiscriminate murder for dissection, and cold-bloodedtraffic, rendering the crime profitable in proportion to the number of its victims. These atrocities seem to have attracted the notice of the Lord Advocate, whose conduct, in all these proceedings, he considered highly meritorious. We were all much indebted to that high officer for the wisdom and prudence with which he had conducted the business. There can be no doubt that the same feelings and wishes existed in his Lordship’s mind as in that of every other man; and his Lordship thought that if he could obtain the punishment of two, or even one of the murderers, a great service would be rendered to the public. The result too fully justified his Lordship’s measures. It became necessary to collect evidence of these crimes, and a body of it had been collected—such as could not, perhaps, be obtained in any other part of the world; and what would the consequences have been if such crimes had escaped altogether without punishment? It was for this purpose that he caused the proposition to be made to Hare, which was stated in his Lordship’s answer. And Lord Gillies expressed his entire approbation of his Lordship’s conduct. The Lord Advocate gave his assurance of pardon. That assurance was properly given. He had a power to promise remission, and Hare was entitled to ask and bargain for it; and no man can look into the case without being satisfied that Hare was entitled to a remission for the important information which he had afforded to the Public Prosecutor. On this very information the indictment against Burke was raised, accusing him of three different acts of murder. Annexed to that indictment Hare’s name was in the list of witnesses, and he might have been examined on any one or all of the three charges. The Court pronounced an interlocutor, limiting the trial to one of these—the murder of Docherty. The only information Lord Gillies had as to the trial wasderived from the papers, and these referred to opinions delivered at the trial, on which he could not venture to offer an opinion, as he was not present. But in the information for Hare, there was an explanation which was not satisfactory, of the opinions which were said to be contradictory. Those opinions must have had an effect upon the witness Hare in giving his evidence, and persons in his situation were not to be supposed qualified to judge of the law. The impressions, therefore, made on Hare by those opinions were more important than the abstract law, as they must have regulated him in giving his testimony, in as far as his belief that he was safe was concerned. He would, therefore, without reference to what had passed at the trial, express his own opinion whether or not the Court was entitled and empowered by law to quash the proceedings in consequence of what took place at the examination on the trial? His Lordship held the right of a private party to prosecute for murder undoubted. The information for Hare says it is an antiquated privilege. It was not antiquated. He had himself been counsel in a case from Aberdeen; and there were many cases of trial for forgery at the instance of Banks. In Captain Macdonoch’s case from Aberdeen there was no objection hinted at, either by counsel or the bench. It was a sacred right, as much so as if exercised at the instance of the Lord Advocate. There are not many cases of trial for assythment; and none are noticed in the informations. It is due in three contingencies—when remission is before trial—when the accused is tried by a Court Martial—and when he is fugitate or outlawed. His Lordship would not say if in any other case assythment might be found due. What prevents the relatives of the poor lad Wilson from sueing? The same principles apply in this case as if the person murdered had been the highest in the land. Are hisrelatives to be controlled by the Public Prosecutor? Though Hare was admitted as witness on the trial for Docherty’s murder, and promised an immunity for his participation in it, the Lord Advocate can neither defeat nor control the right of prosecution in Wilson’s relatives, nor unless in a case where the witness promised an immunity has been actually examined and borne testimony. If a prosecution at the instance of the Public Prosecutor for murder is followed by death, that is conclusive, and shuts out process at the instance of a private party. If there is a remission, assythment is competent; and if there be an acquittal, there can be no process. There is nothing of this kind in the present case. His Lordship stated that the avowed object was to bring Hare to trial—that the right to do so was clear, and he did not know if the Court had any legal right to prevent it or to defeat it. The practical result was important, as Hare would not suffer death. He reprobated the plea that this case should be decided on principles of humanity, justice, and policy. It was not what judges held to be such principles—but what the law lays down that is to regulate them. The true question is, Whether the Court has power to prevent the trial; and he was satisfied that neither the law nor the constitution authorised it. He went into a view of the history of the law upon the subject of admittingsocii criminis, and referred to the Act 21, Geo. II. c. 31, as for the first time introducing what was previously unknown in our law. He considered that act as a resting place in the progress of the law upon the subject—and the only satisfactory one—and it was given under limitations. It was afterwards extended, and he was not sure if it was well and wisely done. His Lordship then referred to cases since that time, and, after other illustrations, concluded byexpressing his opinion that the bill should be refused, and the investigations allowed to proceed.

LordPitmillyapproved of the manner in which the case had been conducted. He did not consider it necessary to take notice of the proceedings at examination on the trial, of which there is no authenticated record. The question was, whether they were to stop proceedings or not—and he could not concur in Lord Gillies’s views. As there were two ways to the same object, and as he had the consolation to think that the practical result would be the same as to the individual concerned, he should have been happy if he could have concurred; but there was a principle involved which prevented him from doing so. His Lordship took a view of the practice with regard tosocius criminisin reference to the Public Prosecutor and to private parties; and stated that the old law of this country excluded them. The law of England admitted them from the first; but more recently our late decisions and practice admitted them in every case. Such a system could only be introduced gradually. His Lordship differed from Lord Gillies in his view of the act Geo. II. c. 34, which introduced a particular rule of law for a special case. It was not a general act, and laid down no general rule, but rather an exception. The 20th section enacted a rule different from that in 31, and the act could not be considered as a resting place in the history of the law as tosocii. His Lordship then went into a review of the cases applicable to this point, and the principle laid down in the case of Smith and Brodie had now been uniformly acted upon for a period of upwards of forty years. The Lord Advocate’s statement was highly satisfactory, and every one must agree in approving of the whole course of his proceedings. His Lordship could not, after procuring all the information which Hare afforded on the faith of the promised immunity,turn round and proceed against him, because he had not been examined on the two cases not brought to trial. He next considered the right of the private party, and held that if it was competent to proceed against Hare in the case of Wilson, it was equally competent to proceed against him in the case of Docherty, at the instance of private parties; yet it is admitted, that in the case of Docherty the right of the private party is controlled, and must be controlled. After a variety of other illustrations, which we regret our limits will not allow us to repeat, in support of these doctrines, Lord Pitmilly concluded by saying, that the purity and integrity of the law and the faith of the Public Prosecutor, which, for the public good, must not be broken, required that the liberation of the prisoner should be granted, and the proceedings against him stopped. He felt most intensely for the relatives of James Wilson—he sympathised with the public in their feelings of detestation upon the subject of the murders which had led to these discussions—but he felt more for the honour of the country, which was bound to vindicate the faith of a great public officer acting for the public welfare.

LordMeadowbankconsidered this a very important case as regarded the consistency of the Court, and also as it affects the First Law Officer of the Crown—and if he were under the necessity of refusing to discharge the warrant of commitment against Hare, it would be to him a subject of humiliation and endless regret. His Lordship differed from his brethren, who considered the admissibility of asocius criminisas of modern introduction into the law of Scotland. He referred to the authority of Lord Hailes, and the trials of Lord Morton, and the Gowrie conspirators, to show thatsociiwere received as witnesses of old, and that remissions had been given for the purpose of obtaining their evidence. His Lordship went into aneloquent and learned illustration of the antiquities of our criminal law in the days of the Justiciar, and previous to the time that the Lord Advocate was invested with his present power, and maintained that at no period in the law of Scotland has a private prosecutor ever enjoyed the power of sueing a criminal without being subject to control by the Public Prosecutor and the Court; and he held that when the king created the Lord Advocate Public Prosecutor, he also must be held to have invested him with all the powers necessary for explicating the duties of his office. Among these the power of remission of offences for the purpose of obtaining information essential to the public welfare must have been transferred. There never had been a prosecution of asocius criminisat any period in the history of the Court when he had obtained the promise of indemnity from the Lord Advocate, and given information and evidence. His Lordship was therefore for quashing the proceedings.

LordMackenziesaid, although he had been anticipated in what he had to offer on this subject, he considered it his duty to express his opinion. As to the matter of form, he was of opinion that Hare was competently before the Court—and it was necessary to decide whether he had a sufficient protection by the compact with the Lord Advocate against farther proceedings. He held that the calling of a witness who was asociusgives an implied protection, and this he held to be fixed by the cases of Brodie and Smith, followed by all the cases ever since. He considered that Hare had this protection both for the case of Docherty and Wilson. The course of the Lord Advocate had been most wise and expedient; and this wretched man, Hare, had acquired an immunity in all the three cases, in consequence of the promise held out to him. Considering the evidence adduced on the trial of Burke, it was impossibleto contemplate Hare’s escape without pain; but he must not die by a perversion of the law, which would shake all confidence in the fair and steady administration of justice.

LordAllowayconcurred in the views of Lord Gillies, and expressed his opinion at considerable length. He applauded the Lord Advocate, who had acted in a manner worthy of himself, and of the high office which he held. His conduct had been distinguished for wisdom and firmness, and he had not a doubt that the Lord Advocate was bound to go to the Crown for a remission to Hare. The Crown, he held, was the only source of mercy. His Lordship could not approve of any authorities drawn from the practice of periods in our history which were a disgrace and abomination—and he could not think of resting any of our law on precedents drawn from the trials of Lord Morton and the Gowrie conspirators. He heard that the trial on which Hare was examined was only on the case of Docherty, not of Wilson; and if it was not the case of Wilson, his examination in the other case afforded him no protection. All other cases except Docherty’s were excluded, and there was no other before the Jury. The Statute of Geo. II. wasin viridi observantia. His Lordship was for refusing the Bill.

TheLord Justice Clerksaid, that considering this case as one of very great importance, he had prepared his opinion upon it with great care and anxiety, and as he had dictated it, he would now read it without any apology. After some preliminary remarks, that opinion was expressed in the following terms:—“From the statement of the Lord Advocate, it is placed beyond all doubt, that, with a view to the public interest alone, he resorted to the course therein detailed, and considering the atrocious, extraordinary, and unexampled nature of the crimes to which his attention had been called, the infinite importance of avoidingthe risk of the escape from punishment of all whothenappeared implicated in these crimes, and the immense advantage of a public example from a conviction, he did exercise a wise and sound discretion in betaking himself to the evidence of Hare and his wife, and giving the assurance stated in his answers. It moreover appears to me, that the propriety and wisdom of the conduct of the Public Prosecutor in regard to the important and delicate duty he had to perform, have been most fully evinced by the result of the trial and conviction of William Burke. If instead of following the course he did, he had indicted Hare and his wife along with the other prisoners for the murder of Docherty, (the Public Prosecutor havingthen, according to his own statement, no sufficient information regarding the murders of Wilson and Paterson) and had failed to obtain a verdict, against the certainty of which not being the case no one will venture to give an opinion; it may be considered what would then have been the feeling of the public in regard to such a proceeding. Keeping the above circumstances in view, and attending particularly to the nature and structure of the indictment exhibited against Burke and M‘Dougal, charging the single crime of murder, in the three specific acts of Mary Paterson, James Wilson, and Mrs. Docherty or Campbell, all alleged to have been perpetrated in the same way and with the sameintent, viz. for the sale of the bodies for dissection,—in the list of witnesses subjoined to which Hare and his wife were included—the interlocutor of the Court finding thewholeindictment relevant to infer the pains of law, but upon the motion of the prisoners, allowing the separation of the charges, and the trial then to proceed as to the murder of Docherty alone—the subsequent direction, at the desire of the prisoners, given to Hare, to confine his statement to the case of Docherty—the examination which he then underwent,both for the prosecution and the prisoners, is to be carefully attended to.”

[His Lordship then took a most comprehensive and detailed view of the law applicable to the case, which our limits will not permit us to give at length, but the conclusion of it is so important that we must give it to the public, as it affords explanations, which it is desirable that every individual should be acquainted with in a case that has excited so deep an interest.]

“If then, the prisoner Hare is legally exempted from all prosecution at the instance of the Public Prosecutor for any accession he may have had to the three acts of murder charged in the indictment against Burke and M‘Dougal, there seems no ground in law for maintaining that he may still be prosecuted at the instance of the relations of either of the three parties alleged to have been murdered. As to thespecialityattempted to be founded on as to his not having been examined with regard to the actual murder of James Wilson, it has already been sufficiently adverted to, in reference to the supposition of the Lord Advocate attempting to prosecute for that offence. The nature of the indictment—the interlocutor finding the whole charges relevant—and the almost identity of the modes of slaughter and intent with which the three acts were perpetrated, and the general nature of Hare’s evidence—have already been pointed out as demonstrating that without a total departure from the fairness and justness that must ever characterize judicial procedure, it is impossible to deny that Hare did mix himself up with matter that had the closest affinity to the other acts, the trial of which did not proceed at the time. It is farther to be recollected that, in the list of witnesses, there stand included various persons connected with the death of Wilson, the discovery of whom, we have the assurance of the Public Prosecutor, was made throughthe information of Hare alone, who did also make such disclosures as led to the framing of that and the other charge in the indictment. It is utterly impossible, therefore, to view Hare as a person who had not spoken out or givenany evidence, relative to the crime for which he is now attempted to be tried. He can by no possibility be replaced in the situation in which he formerly stood.Things are no longer entire with regard to him, as has been justly said. The public has derived the benefit that was expected from his evidence, by the conviction and execution of this guilty associate; andthe public faith that was pledged to him in the face of the country, and confirmed by the intervention of the authority of this Courtmust be preserved inviolate. Such is the deliberate opinion that I have formed, after the most careful and anxious consideration of all that has been urged, both in speaking and in writing, upon this important question, and a careful review of the authorities that appeared to bear upon it.The same opinion I formerly delivered in a most important stage of the trial of Burke and M‘Dougal, with the concurrence of my brothers who were then sitting with me.I am free however to admit, that notwithstanding this circumstance, it was my bounden duty to re-consider that opinion with all due attention to the able and elaborate argument that was offered against it by the respondents’ counsel. I cannot, however, agree with them that the opinion to which they objected, and were well entitled to object, was one of anobiter, or passing nature, and not to be considered of importance at this stage of the trial when it was pronounced. It was, on the contrary, delivered to the Jury, as the opinion of the Court, upon an objection urged in point of law, in the most earnest manner by the counsel for the prisoners, and which, if well-founded, must have gone to the destruction of the credit of the accompliceswho had given evidence. There can be no part of the duty of the Judge who presides at a criminal trial more sacred than that of expounding the law to a Jury, in reference to such an objection; and it is necessary, therefore, that the opinion of the Court should be given in the most unequivocal terms. It was accordingly given to the purport and effect that is stated in the printed trial. As no man can say what effect that statement of the law had upon the minds of the Jury,—as it may in fact have led them to give such credit to Hare and his wife, as actually brought about their verdict against Burke, and consequently that his fate had been decided by it, I have no hesitation in declaring, that if I had, upon reflection, been convinced that I had committed an error, and delivered an erroneous opinion in law to the Jury, I should have felt it to be my bounden duty, without the least regard to popular feeling or clamour, to have made such a representation to the Secretary of State, as might have led to an alteration of the sentence of the law upon Burke. The opinion, however, which I did deliver, in my charge to the Jury, so far from being shaken, has been strengthened and confirmed by all that I have since heard or read upon the subject. I shall only add, that if the objection to the credit of the accomplices, upon the ground of their being actually liable to be tried for the two acts of murder contained in the indictment, the trial of which had that day merely been postponed, had been taken, as it ought to have been, when Hare and his wife were offered as witnesses, the point would have been fully argued, and solemnly determined by the Court. But as it was withheld till the addresses to the Jury, every one knows that it could not otherwise have been disposed of than by delivering an opinion upon it to the Jury. I have but one word more to add with regard to the supposed inconsistency between theopinions expressed by myself and my brothers, in regard to a question proposed to be put to Hare, and that which I delivered to the Jury. I must beg leave, however, to say, that when the realres gestaeare attended to, no such inconsistency can be found. I find from my notes, that the argument of the counsel “was raised upon the question,if Hare ever was concerned in the commission of other murders?” Upon the competency of that question, the opinions of the Court were delivered, and those opinions must necessarily be viewed as having reference to the question actually proposed, and the injunction which the pannels’ own counsel had themselves desired should be given to Hare, to confine himself to the case of Docherty. And I well recollect of putting it to the counsel, that the witness must be fairly dealt with, and of having stated, that if asked in regard to the cases of Wilson and Paterson, his whole statement must be given, whatever the consequences might be. When the examination was resumed, I do not find thatthe question is put in the precise terms on which it had been argued; and it was only at a later period that Hare was asked,if there was a murder committed in his house in October last? but as to which the opinion of the Court was not delivered. Whatever shade of difference may therefore appear in the opinions regarding these questions, and that which was advisedly delivered in the charge to the Jury, and I am by no means surprised it has so struck some of your Lordships, must fairly be ascribed, either to the imperfections of the report of the trial, or to the course of proceeding that was adopted at the suggestion of the counsel for the prisoners. I am, upon the whole, of opinion, that the prayer of the prisoner’s bill ought to be granted, and that it would be directly contrary to the established practice of this Court, and the principles of our law, merely to suspend the proceedings against him,in order that a pardon should be obtained for his concern in the offences charged in the indictment, upon which he was examined as a witness. Such would be the course adopted by the judges of England; but, respecting as I do, that law and its institutions, I do not, as a Scottish judge, feel myself warranted to follow it on the present occasion. My opinion is, that it would be equally incompetent to the first officer of the crown, as it is to the private parties now before us, to institute any criminal procedure against Hare, steeped in guilt although he be, in reference to the acts contained in the indictment against Burke, and I can allow that opinion in no degree to be influenced,civium ardore prava jubentium.”

An interlocutor was then pronounced, passing the bill of advocation, (thereby reversing the decision of the Sheriff), ordaining the Magistrates and keepers of the jail of Edinburgh to liberate the prisoner Hare from confinement, quashing the proceedings which had been instituted with a view to bring Hare to trial at the instance of James Wilson’s nearest of kin, and ordaining the precognitions already taken for that purpose to be cancelled.

Thus, in as far as Hare is concerned, these prosecutions connected with the late murders are closed; and whatever may be the opinions entertained out of doors with respect to the conflicting views of the Judges upon the law of the case, it must be satisfactory to the country to find, that although differing materially on many points in the discussion, the Court were unanimous in approving most warmly and decidedly of the Lord Advocate’s proceedings. And, however deeply every virtuous man may lament that a wretch, who is so covered over with crimes, should escape the hands of justice, this feeling ought to be controlled by the recollection that even the guilty must not suffer bystretches of the law, which might also be perverted in other cases, to the ruin of the innocent—that, without the information which Hare has afforded, not even one of the horrid crew of murderers would have been convicted, or the means afforded of checking a hideous system of murder—and that, by the course which the Public Prosecutor has pursued, in giving one man immunity from punishment for such information, a great benefit has been conferred upon society, for which his Lordship is entitled to the gratitude of his country. As to Hare himself, he is morally, and in the eyes of all mankind, a self-convicted murderer. He is liberated for the present from the jail and the gibbet—but he goes forth an outcast on the world, with a brand on his forehead, that can never be effaced. Wherever his name is heard by him, he will hear it amidst the execrations of mankind. His doom hereafter it is not for man to anticipate.

The delivery of their Lordships’ opinions in this interesting case occupied the Court upwards of seven hours. The Court-room was crowded during the whole time.

In the former part of this account, we announced that some particulars of the lives of each of the prominent actors in the black dramas should be given. The press of matter that has since occurred, has hitherto prevented this, but we now proceed to redeem our pledge, in so far as one of them is concerned, by briefly mentioning such things as have come to our knowledge respecting the notorious

This villain’s character apparently has presented few traits which could interest any one previous to his great crimes. It may be judged of by picturing thebeau idealof a drunken, ferocious, and stupid profligate. What few incidents have occurred in his miserable life, if such there were, would also have been lost, by the insuperable aversion every one previously acquainted with him seems to have in avowing even a casual connection. While the acquaintance of Burke has been claimed by many, and his habits and manners freely dwelt upon, all have shrunk from an avowal of such an intimacy with his fellow monster, as would justify them in depicting his character. After it was discovered that Burke had, before his crimes, displayed some of the attributes of humanity, and had borne a very different character from what his real one turned out to be, it was assumed, that he had been made a tool of by Hare, and that he was the tempter and arch-fiend who had lured him on to his destruction, and instructed him in the hellish arts; and Burke’s language favoured the idea. But Hare has since exhibited, along with his hardened indifference and callousness, such a mental apathy, such gross and unconceivable stolidity in his conduct and estimation of his crimes, as to force us to the conclusion, that, however inclined he might be to reach the climax of atrocity, he was not capable of leading or directing any one, far less Burke, or initiating him in the barbarous trade.

In corroboration of this we may mention, that a celebrated literary professor of our University, it is understood, visited both of the murderers when in jail, and gave, as his opinion, that in comparison with Burke, Hare was a perfect fool, and that he was convinced that he could never be his instructor.

He describes Burke to have been a very intelligent man, and one whose conversation would give a great idea of candour and open-heartedness, though his conduct displayed nothing like remorse or contrition. On the contrary, he seemed happy that the Professor’s knowledge ofInnerleithen enabled him to talk of the kindness and charity towards him of several individuals there. He talked of them so as to lead the learned gentleman to remark, that “he understood perfectly well what charity was though he did not practise it.” Hare’s behaviour and conversation were perfectly different. He seemed not to possess the slightest moral perception of the enormity of his conduct, and described his guilty compeer as one of the best men in the world, who would part any thing he had in the world with a beggar. His aspect did not belie him; well might Mr. Cockburn describe him as a “squalid wretch;” we scarcely ever saw a more disgusting specimen of human nature, and both in his physical and moral conformation the brute seemed to vie with the man for the ascendency. A continual idiotic though diabolical laugh appeared to be upon his countenance, such as might be imagined to characterize the lowest grade of fiends.

He is a native of Ireland, and was born in the neighbourhood of Londonderry, and after working at country work there he came to Scotland and engaged as a common labourer upon the Union Canal, and for some time assisted in unloading Mr. Dawson’s coal-boats. There he fell in with Log the former husband of his notorious wife, and subsequently came to lodge in his house. After the work at the canal was finished he took up the trade of a travelling huxter, and with an old horse and cart went about the country selling fish, and sometimes crockery-ware, which he gave in exchange for old iron, &c. and sold it again to the dealers in Edinburgh. He used also to go about with ahurleyselling articles. Before Log’s death he had left his house in Tanner’s Close, but returned again after this event, and assumed the privileges of the master of the house, although Mrs. Log never was called by his name. He then became a perfect pest to the inhabitants of the West Port, from his debauched dissolute habits and reckless brutality.His conduct would justify the oft-repeated allegation of an Irishman’s addiction to fighting, as he was continually in a brawl. He never failed to pick a quarrel upon any opportunity that offered, and an individual looking at him was sufficient apology for a challenge to the combat. Though a sorry pugilist, he was never tired until fairly disabled; and the many drubbings he received, could not cure him of his pugnacious propensities. If no adversary presented himself out of doors, he was always sure of one within, and his wife and he were perpetually engaged in conflicts. Though almost always intoxicated herself, his drunkenness incited frequent attacks from her. Any of the neighbours would desire a boy “to go and tellLucky LogthatWillie Harewas on the street drunk,” and a fight immediately ensued upon their rencontre.

In our account of the murders, we have already noticed the share that he had in them, as well as his conduct upon the trial and immediately subsequent to it, and it is unnecessary to repeat it here; we will confine ourselves therefore, to some farther notice of his deportment while in jail, and his adventures after liberation. At first, after Burke’s conviction, he imagined that his detention was for the purpose of protecting him, and was very easy and not at all troubled with compunction; but after his confinement was extended to a period far beyond what was necessary for immediate protection, he began to become uneasy, which was increased when inquiries about the murders were renewed. His behaviour indicated most unbecoming levity, as well as imbecility. He apparently was incapable of comprehending any thing of moral rectitude.

On the last Sabbath of Burke’s life, and when his own case was pending in the courts, he is said to have displayed the only symptoms of feeling that he had suffered to escape him. It was during the discourse of the Rev. Mr.Porteous, which, contrary to his usual custom, he listened attentively to, and appeared affected when pointed allusion was made to his compeer.

On the 2d February, and probably within half an hour of the time when the wretch would have been liberated, in consequence of the judgment of the High Court of Justiciary, on his bill of advocation, suspension, and liberation, a detainer was lodged against him at the instance of the mother and sister of Daft Jamie, proceeding upon a petition setting forth that the petitioners had a claim of assythment against Hare on account of the murder of their near relative; that the sum of five hundred pounds, or such other sum as might be modified, was due to them by Hare on that head, and that, as the said William Hare, a foreigner, wasin meditatione fugae, and about to withdraw himself forth of the kingdom with a view to disappoint their just claim; wherefore a warrant was prayed for to take him into custody, to bring him before the Sheriff for examination, and to take him bound in cautionjudicio sisti et judicatum solvi. The petitioners having taken the usual oath, Hare was consequently detained, and eight o’clock the same evening was fixed for his examination. Accordingly, a little after the hour appointed he was brought into an apartment of the jail for examination, and a number of interrogatories were put to him; but he preserved an obstinate silence in regard to all of them, except the first, we believe, which related in some way to the murder of Jamie, and in reference to which he growled out that he would say no more about it. Several witnesses to whom he had communicated his intention, after getting out of jail, to quit this country and return to Ireland, were then called and examined. Among these was a prisoner of the name of Lindsay, a brisk fellow, with a black scratch wig on the top of his head, who proved distinctly that Hare meant toleave Scotland and withdraw to some part of Ireland; and having finished his deposition, volunteered his unqualified testimony in favour not only of Hare but also of Burke. This fellow, whose misfortune as well as fault it is to be alimented and housed at the public expense, and who is not yet a man oftriedcharacter, although it will soon, we understand, be put to the test, observed that he knew both Burke and Hare well; that in particular he had slept for a considerable time with the former before his trial; and that he was decidedly of opinion they werethe best Irishmen he ever knew: from which we would charitably infer that his acquaintance has been rather limited and somewhat select. Several turnkeys gave evidence to the same effect with thisyouthas to the expressed intentions of Hare; and ultimately the Sheriff granted warrant for the incarceration of the latter, until he should give cautionjudicio sisti. When Hare discovered the turn things were taking, he recovered the use of his speech, and said twice or three times, “Ye’re no giving me justice; I’m sure, gentlemen, ye’re no giving me justice.” Observing him getting the better of the caution he had previously observed, several questions were put to him, without however eliciting any satisfactory answers. “What would you do if you were to get out of jail?” “I do not know; I must do something; I have no money.” “Do you consider yourself in danger from the mob?” He gave no audible answer to this question, though he seemed to be muttering something. “Would you consider yourself safe in Edinburgh?” “No, I would not consider myself safe in Edinburgh.” “Would you consider yourself safe in any other part of this country?” “My mind and heart tell me that I ought to be safe?” This answer excited some surprise, for had it been competent to prove any thing except his expressed intentions to quit the countryupon his liberation, witnesses might have been easily produced to whom he had admitted the murder, from all prosecution for which he is now for ever free. The appearance of Hare upon this occasion was more than usually hideous and forbidding. The “squalid wretch” of the witness-box will not soon be forgotten by those who happened to see him there; but on Monday night he was incomparably more gruesome and growlish; for in order to facilitate the operations of some Phrenologists, who had just finished taking a cast of his head, his hair had been mown down to the very sconce, with the exception of a fringe bordering the scalp all round, thus blending in his appearance the ludicrous with the horrid in a way and manner that defies all description. His behaviour, however, was rather dogged and cautious than impudent or forward. When he first entered the apartment, he seemed very much at his ease; but when he came to understand, after repeated explanations, the object of the proceedings, he grew exceedingly restless and fidgetty, neither his “mind or heart telling him” that farther imprisonment was likely to prove either convenient or salutary. Upon the whole, however, he is certainly one of the coolest and most collected villains that ever lived; and we are convinced that the only consideration which gave him a moment’s uneasiness is an accidental vision of the gallows flitting across his imagination. To this favour, indeed, we have little doubt that he will ultimately come.

The following admirable description from the graphic pen of John M‘Diarmid, Esq. editor of the Dumfries and Galloway Courier, a gentleman to whom literature is much indebted, furnishes every particular that can be requiredof Hare’s proceedings after his liberation from the Calton-hill Jail.

We were roused from our bed on the morning of Friday the 6th of February, by a messenger who stated that the miscreant Hare had arrived in Dumfries. At first we could hardly credit the intelligence, after what we had seen stated in the Edinburgh papers; but on repairing to the coach office at the King’s Arms Inn, a little after eight o’clock, we discovered that the news was too true. By this time a considerable crowd had collected, and every moment added to its density. On being admitted to the hateful presence of the man, we found him, as was natural, exceedingly reserved on certain points, but sufficiently communicative regarding others—particularly the means employed, as he alleged, by certain authorities, to facilitate his escape to his native country. At a little past eight on Thursday night, while a very different impression prevailed in Edinburgh, he was released from his cell in the Calton-hill Jail, and after being muffled in an old camlet cloak, walked in company with the head Turnkey, as far as the Post-Office on Waterloo Bridge, without meeting with the slightest molestation. At this point his companion called a coach, and conveyed him to Newington, where the two waited till the mail came up. The guard’s edition of the story varies thus far—that he took up an unknown passenger in Nicolson Street, and was ordered to blow the horn there. But the difference is immaterial, and might easily arise from Hare’s state of mind, and ignorance of the ever shifting localities of Edinburgh. Be this as it may, he got safely seated on the top of the mail, without challenge, and without suspicion. In the way-bill he figured as a Mr. Black,—not an inappropriate name—and the tall man who came to see him off, exclaimed, whenthe guard said “all’s right,”—“good bye Mr. Black, and I wish you well home!” At Noblehouse, the second stage on the Edinburgh road, twenty minutes are allowed for supper, and when the inside passengers alighted and went into the Inn, Hare was infatuated enough to follow their example. At first, however, he sat down near the door, behind backs, with his hat on, and his cloak closely muffled about him. But this backwardness was ascribed to his modesty, and one of the passengers, by way of encouraging him, asked if he was not perishing with cold. Hare replied in the affirmative, and then moving forward, took off his hat and commenced toasting his paws at the fire—a piece of indiscretion that can only be accounted for by his imbecility of character. And little indeed was the wretch aware that Mr. Sandford, advocate, one of the counsel employed against him in the prosecution at the instance of Daft Jamie’s relations, was then standing almost at his elbow. A single glance served all the purposes of the fullest recognition, and as Hare naively enough remarked, “he shook his head at me,”—we suppose it was a shake after the fashion of the ghost in Macbeth, and that the wretch was so well aware of its significancy, that he felt his blood freezing in its course, and that his hair, if the phrenologists had left any remaining, would have bristled “like quills upon the fretted porcupine.” When the guard blew his horn, the associate of Burke managed to be first at the coach door, and as there happened to be one vacant seat, was allowed to go inside. But Mr. S. on coming forward, immediately discovered what had taken place, and although something was said about the coldness of the night, determinedly exclaimed, “take that fellow out.” Again, therefore, he was transferred to the top, and then Mr. S. to explain perhaps his seeming harshness, revealed to his fellow travellers—(two of our own townsmen)—asecret which we devoutly wish he had kept. News, whether good or bad, partake of the diffusive nature of light, and at Beattock, the guard, and even the driver, became as learned as others, though not half so close. Still as the hour was early, the night dark, and the inmates asleep, no disturbance of any kind occurred until the tocsin was sounded in this town. Each of our townsmen had a servant in waiting to receive his luggage, and the moment Jack and Bill, Tom or Peter, received a hint, the news flew like wild-fire in every direction. We have already spoken of the crowd that had assembled shortly after eight o’clock, and by ten it had become perfectly overwhelming. Nearly the whole of the High Street was one continued mass of people, so closely wedged, that you might have almost walked over their heads, while Buccleuch Street was much in the same state; and to express much in few words, the one, as far as numbers went, reminded us of a great fair when the country empties itself of its population, and the other of what takes place at an execution. The numbers of the people are variously estimated, but the best judges are of opinion that they could not be under 8,000. As it was known that Hare was bound to Portpatrick, the mob every where evinced the greatest anxiety to see him pass and pay their respects to him in theirown way. But in the interim of more than four hours, that elapses between the arrival of the Edinburgh, and departure of the Galloway or Portpatrick mail, hundreds if not thousands were admitted to see him; and if poll-tax had been levied during the day, from the multitudinous visitors to the wild beast, a large fund might have been raised for the purposes of charity, though we question whether the poorest person in town would have pocketed a farthing so ignominiously come by. The Edinburgh mail arrived about twenty minutes before seven, andas the crowd were soon on thequi vive, it became necessary to secrete Hare in the tap-room attached to the King’s Arms. Here, from the first, he was surrounded by a knot of drivers and other persons, and as ale was handed to him, he commenced clattering to all and sundry, and drinking absurd toasts—such as, “bad luck to bad fortune.” At this time he appeared to be the worse of liquor; and when interrogated as to his personal identity, he replied that he was indeed the man, and that “there was no use of denying it now;” but all questions regarding his crimes he evaded, by stating that “he had said enough before”—“had done his duty in Edinburgh,” &c. &c. To have pressed him on such points would have been the height of folly, for even if he had been disposed to speak out, no reliance could have been placed in his statements; and just as ill-timed, in our opinion, were the threatenings addressed, and the reproaches showered upon him by a variety of persons. Betwixt nine and ten o’clock an intelligent gentleman visited Hare, and shortly after he was taken into a closet off the tap-room, and left in the presence of three individuals. After various questions, touching chiefly his early history, in the course of which he stated that he had almost no money, and had tasted no food from the time he had left the prison, the gentleman alluded to gave him a sovereign, and this piece of kindness seemed to surprise him so much that he actually burst into tears, though his bearing had been sufficiently unflinching before. When this visitor retired, those without forced the door, and crowded the closet to suffocation. In an instant Hare was nosed, and squeezed into the smallest possible corner, and strongly reminded us of a hunted fox when he stops short, turns round, shows his teeth, though unable to fly, and vainly attempts to keep the jowlers at bay. In the absence of the police, his situation was far from being free fromdanger; and amidst a dreadful torrent of other imprecations “Burke him! Burke him!” resounded so loudly, that we actually believed he would be murdered on the spot. One old woman—the only one in the crowd—was particularly emphatic and ferocious in her gestures, and seemed anxious to get forward to strike “the villain” with the butt-end of a dirty ragged umbrella. But she could not make her way through the crowd; and lucky it was for the object of her abhorrence; for mischief, like fire, needs only a beginning, and if but one individual had set an example of violence, we believe it would have been very generally followed. When the police arrived, the room was cleared, and Hare re-conveyed to the tap-room, where crowds continued to visit him, almost up to the hour, (eleven o’clock) when the Galloway mail was expected to start. With a view to this, the inn yard was cleared not without difficulty, the horses put to, and the coach brought out; but the mob, who, Argus-like, and with far more thanhiseyes, anxiously watched every opportunity, had previously taken their plans almost by instinct, and their aspect appeared so truly threatening, that it was impossible to drive the mail along the High Street, if Hare was either out or inside, with safety to any person connected with it. In these circumstances, and while two passengers were sent forward a few miles in gigs, the coach started perfectly empty, if we except the guard and driver, and one of Bailie Fraser’s sons, who seemed anxious to protect his father’s property. The crowd opened and recoiled so far, and the tremendous rush—the appalling waves on waves of people—far exceeded in magnitude and intensity, any thing we ever witnessed in Dumfries before. When near the post-office, the coach was surrounded, the doors opened, and the interior exposed; and though this proceeding served to allay suspicion, the cry soon resounded far and wide that the miscreant,who was known to be a small man, had managed to squeeze himself into the boot. We have said that the mob had concocted a plan, and from all we can learn, their resolution was, to stop the mail at the middle of the bridge, and precipitate Hare over its goodly parapet into the river. Failing this, they had fully determined to way-lay the coach at Cassylands toll-bar, and subject him to some other species of punishment; and in proof of this, we need only state, that they had forcibly barricaded the gates. But when it became obvious that Hare was neither in nor on the mail, the guard and driver were allowed to proceed; and we here mention, that Mr. Fraser, jun. while returning home on foot, was hooted and threatened, merely from having been upon the top of the mail. Even those who interfered in his behalf, were exposed to a shower of mud, and ourselves among others, was so honoured for daring to take the part of an unoffending citizen. But that is a matter of no moment, otherwise we could tell a number of similar tales. Hare, as we have said, was not allowed to go by the mail, and when that fact became generally known, group after group continued to visit the monster’s den, though policemen with their staves guarded the mouth of the King’s Arms Entry, kept the mob at bay, and only admitted whom they pleased. By these successive visitors, he was forced to sit or stand in all positions, and cool, and insensate, and apathetic as he seems, he was occasionally almost frightened out of his wits. Abuse of every kind was plentifully heaped on him, as the only fitting incense that could meet his ear; and one woman, it is said, seized him by the collar, and nearly strangled him; while a sturdy ostler who happened to be present, though perhaps not at the same moment, addressed him in these emphatic words—“Whaur are ye gaun, or whaur can ye gang to?—Hell’s ower good forthe like o’ you—the very deevils, for fear o’ mischief, wadna daur to let ye in; and as for heeven that’s entirely out o’ the question.” Another man told him that he should never rise off his knees, and many that “he should hang himsel’ on the first tree he cam’ to.” On one occasion he was menaced by a mere boy, while others urged him on and took his part, and at this time he became so much irritated that he told them “to come on and give him fair play.” A second time when pressed beyond what he could bear, he took up his bundle and walked to the door, determined, as he said, to let the mob “tak’ their will o’ him.” In this effort, he was checked by a medical man; but it would be endless to repeat all that occurred while Hare remained a prisoner in the tap-room.

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