The History of Burke and Hare Part 11

Ideality is very large. Causality is large. Wit is full.

CHAPTER x.x.x.

_Hare's Position after the Trial--Warrant for his Commitment Withdrawn--Daft Jamie's Relatives seek to Prosecute--The Case before the Sheriff and the Lords of Justiciary--Burke's Confessions and the "Courant"--The Lord Advocate's Reasons for Declining to Proceed against Hare--Pleadings for the Parties._

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

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

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

On the 16th of January, then, a pet.i.tion was presented to the Sheriff, charging Hare with the murder of "Daft Jamie," and his lordship granted permission to take precognitions. When Hare was visited by the agent and counsel employed by Mrs. Wilson (the mother of the murdered lad), he refused to answer any questions, and when leaving the room to which he had been taken to be examined, he remarked, with a sardonic laugh, to a person standing near, "They want to hang me, I suppose." This was not, however, sufficient, and Mr. Duncan M'Neill, as counsel for Hare, on the 20th of January, presented to the Sheriff a pet.i.tion for liberation and for the interdict of the precognitions inst.i.tuted by the private prosecutors. On the following day the counsel for both parties were heard, and the Sheriff p.r.o.nounced a decision, in which he said:--"In respect that there is no decision, finding that the right of the private party to prosecute is barred by any guarantee, or promise of indemnity given by the public prosecutor, refuses the desire of the pet.i.tion; but in respect of the novelty of the case, supersedes further proceeding in the precognition before the Sheriff, at the instance of the respondents [the private prosecutors], till Friday next, at seven o'clock, in order that William Hare may have an opportunity of applying to the Court of Justiciary."

There was accordingly presented to the High Court of Justiciary, on behalf of Hare, a bill of advocation, suspension and liberation. This was an exceeding long doc.u.ment, setting forth all the circ.u.mstances of the case, in which it was pleaded that the case by Mrs. Wilson against the pet.i.tioner--who had given evidence against Burke on the a.s.surance that if he made a full disclosure of all he knew relative to the several murders which formed the subject of inquiry, no criminal proceedings would be inst.i.tuted against him for any partic.i.p.ation or guiltiness appearing against him--was incompetent, irregular, oppressive, and illegal, and that he was ent.i.tled to liberation. The review of the court was asked on the Sheriff's judgment. This pet.i.tion was presented to the court on the 23rd January, and it was ordered to be served on the agent for the private prosecutors, while the parties to the case were ordained to appear before the court on Monday, 26th January. On this same day, Hare presented another pet.i.tion to the Sheriff craving to be released from close confinement, and to be allowed to communicate with his counsel and agent.

The Sheriff p.r.o.nounced an interlocutor to that effect.

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

But an incident occurred which diverted public attention to a certain extent in a different direction. This was an announcement in the _Courant_ of Monday, 26th January, that in the issue of the following Thursday there would be published a full account of the execution of Burke and of his conduct during his last moments; together with an important doc.u.ment which had been in their possession for some time--a full confession or declaration by Burke, "which declaration was dictated and partly written by him and was afterwards read by him, and corrected by his own hand, and his signature affixed to attest its accuracy." This announcement raised the hopes of the public to a high pitch, for the information that had reached them before was only to be gained from a trial, the scope of which was confined solely to one event, and from vague rumours and uncertain statements. Now, it was expected, the whole conspiracy would be made patent. But the announcement was somewhat injudicious and premature, as the case against Hare was pending in the High Court of Justiciary, and it was plainly evident that until a decision was p.r.o.nounced in it, any confession by Burke would have a prejudicial effect upon him. Accordingly, when the High Court that morning had heard the counsel for parties, Mr.

Duncan M'Neill, on behalf of Hare, called attention to the threatened contempt of Court by the _Edinburgh Evening Courant_, in promising to publish the confessions of Burke, and he asked that such publication be interdicted, especially in so far as related to the murder of James Wilson. The Lords of Justiciary concurred in the propriety of the application, granted interdict of the publication in the _Courant_ of the doc.u.ment which would likely prejudice Hare, and "recommend all other newspapers to abstain in like manner from so doing." This was highly disappointing to the public. There was, however, no help for it but to wait, and on the Thursday the _Courant_ was under the necessity of intimating to its readers:--"We regret to state that owing to an interdict issued on Monday last by the Court of Justiciary, to which we are bound to yield the most respectful obedience, we are prevented for the present from laying before our readers the confessions of Burke. But so soon as it is removed, we shall lay this doc.u.ment before our readers, as formerly promised."

When the Bill of Advocation came before the High Court of Justiciary on Monday, the 20th January, the counsel for the parties were heard at length, after which an order was made that the bill be intimated to the Lord Advocate to make such answer to it as he should think necessary; and also that the counsel for the parties should lodge informations upon the subject matter of the bill by the following Sat.u.r.day. The Lord Advocate's answer was interesting in more ways than one, for in addition to bringing into prominence the question of whether the private prosecutor was superseded by the public prosecutor, he detailed the difficulties by which he had been beset in the preparation of the case against Burke. Having briefly touched on the question as to whether the court had the power to require, in this shape, a disclosure of the grounds on which he, as public prosecutor, had been guided in the exercise of his official discretion, he pointed out that the four persons arrested for the murder of Mrs.

Docherty, denied all accession to the crime. The evidence he had been able to gain was, he found, defective, and was not sufficient to ensure a conviction from a Scottish jury, which was uniformly scrupulous in finding a verdict of guilty where a capital punishment was to follow. The only mode by which the information essentially awanting could be procured was by admitting some of the accused persons as witnesses against the others, and as he had reason to suspect that at least another case of a similar description had occurred, he felt it to be his imperative duty not to rest satisfied until he had probed the matter to the bottom. For the public interest it was necessary to have it ascertained what crimes of this revolting description had really been committed, who were concerned in them, whether all the persons engaged in such transactions had been taken into custody, or if other gangs remained whose practices might continue to endanger human life. A conviction of all the four persons might lead to their punishment, but it could not secure such a disclosure, which was manifestly of more importance. The question then arose as to what one of the four should be selected as a witness. M'Dougal positively refused to give any information, and as the Lord Advocate deemed Burke to be the princ.i.p.al party, Hare was chosen, and his wife was taken with him, because he could not bear evidence against her. Hare was, in consequence, brought before the Sheriff on the 1st of December for examination, and then, by authority of the Lord Advocate, he was informed by the Procurator-Fiscal that "if he would disclose the facts relative to the case of Docherty, and to such other crimes of a similar nature, committed by Burke, of which he was cognisant, he should not be brought to trial on account of his accession to any of these crimes." "This a.s.surance," continued the Lord Advocate in his answer, "had no reference to one case more than another.

It was intended for the purpose of receiving the whole information which Hare could give, in order that the respondent might put Burke and all others concerned on trial, for all the charges which might be substantiated. In giving it the respondent acted under the impression, and on the understanding, that when offences are to be brought to light, in the course of a criminal investigation carried on at the public interest, such a.s.surance altogether excluded trial at the instance of any private party. In its nature, this a.s.surance 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 a.s.surance was so meant to be understood." Having briefly alluded to the circ.u.mstances attending the trial, when he was prevented from examining Hare and his wife as to each of the three murders set forth on the indictment, his Lordship said it was from the information obtained from Hare, on the a.s.surance of immunity, that he conceived he was enabled to secure a conviction. He proceeded:--"The warrant of imprisonment against Hare and his wife, at the public instance, has since been withdrawn, in consequence of its having turned out, after the most anxious inquiry, that no crime could be brought to light in which Hare had been concerned, excepting those to which the disclosures made by him under the above a.s.surance related." After he had given the a.s.surance, and obtained the results he had, the Lord Advocate said he would not make any attempt to prosecute Hare, indeed, he "should strongly feel such a proceeding, upon his part, dishonourable in itself, unworthy of his office, and highly injurious to the administration of justice."

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

Some more attention must, however, be paid to the "Information for Janet Wilson, Senior, and Janet Wilson, Junior, Mother and Sister of the late James Wilson, generally known by the name of Daft Jamie," the private prosecutors, prepared by Mr. E. Douglas Sandford, under the direction of Mr. Francis (afterwards Lord) Jeffrey. After the usual review of the proceedings up to that time, the private prosecutors set forth their intention thus:--"The prosecutors are, in the _first_ place, obliged to support their t.i.tle in the present prosecution, and to show the const.i.tutional right which, according to the law of Scotland, they possess, of bringing the individual to justice, whom they conceive guilty of the atrocious crime by which they have been injured. But, _2ndly_, the prosecutors are anxious to contest the doctrine of indemnity upon which the prisoner has founded, and to show that he is stretching, far beyond its legal limits, the indulgence granted by the Court of Justiciary to those who are examined before it as _socii criminis_." As to the right of the private party to prosecute, this, it was contended, was a fundamental and const.i.tutional principle in the criminal jurisprudence of Scotland--not an antiquated right, but one that was recognised by the latest authorities. Having quoted Burnet and Hume, the private prosecutors went on to say, that, legally speaking, there were only two situations in which a prisoner could plead indemnity in bar of trial--previous acquital, by a jury, of the crime of which he was charged, or remission by the Crown. But the point which the prosecutors were anxious to establish was "that whatever may be the nature of the private arrangement between the public prosecutor and the criminal, and whatever may have been his inducement to give up the right of calling upon the criminal to answer at the bar of justice, for the crime of which he is guilty, that arrangement cannot deprive the private party of his right to insist for the full pains of the law. If the law contemplated the power of the public prosecutor to deprive the private party of his right to prosecute by arrangements to which the latter is no party, it had better declare at once that the private instance shall be at an end, because it virtually would be so. In every case where the public prosecutor wished to protect a criminal, and shield him from the effects of crime, an arrangement, under the pretence of a precognition and searching for evidence against a third party, might at once be made; and if the doctrine maintained on the part of the prisoner be correct, that would prevent all prosecution at the instance of the individual injured." The a.s.sertion of the prosecutors was that their legal right to investigate the circ.u.mstances attending the death of their near relation, and to indict the accused party if they should find sufficient ground to do so, could not be interfered with by the proceedings of the public prosecutor, in circ.u.mstances over which they had no control. In point of form, it was required by the law that the Lord Advocate should grant his concourse to a prosecution before the High Court of Justiciary, and he had no right to refuse this concourse, but if he should so refuse it he could be compelled to grant it, for the reason that it was not _in arbitrio_ of him to deprive a party of his right. In support of the contention for the private prosecutors various cases were cited, particular stress was laid upon the warnings addressed by the Lord Justice-Clerk and the counsel for Burke and M'Dougal to Hare when he was in the witness box, that the protection of the Court only extended to the case under trial, and not to the other two charges in the indictment, which had been deserted _pro loco et tempore_.

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

CHAPTER x.x.xI.

_Hare's Case before the High Court of Justiciary--Speech by Mr.

Francis Jeffrey--Opinion of the Judges--A Divided Bench--The Decision of the Court._

The High Court of Justiciary met to decide on the case, as it now stood, on the 2nd of February. The importance of the issue to be deliberated upon is shown by the fact that on the bench were no fewer than six judges--the Lord Justice-Clerk (Boyle), and Lords Gillies, Pitmilly, Meadowbank, Mackenzie, and Alloway. Hare was represented by Messrs. Duncan M'Neill and Hugh Bruce; the private prosecutors by Messrs. Francis Jeffrey, Thomas Hamilton Miller, and E. Douglas Sandford; and the Crown by the Lord Advocate, the Solicitor-General (Mr. Hope), and Messrs. Robert Dundas, Archibald Alison, and Alexander Wood, Advocates-Depute.

At the outset, Mr. Jeffrey obtained the permission of the Court say a few words on the power of the public prosecutor to enter into a compact with accomplices whom he might think proper to adduce as witnesses. The particular questions he wished to raise were--Had the High Court of Justiciary no power over such a compact? Had the court, he asked, no judicial discretion over the terms of such an agreement, and did it rest with the Lord Advocate, and not with the court, to decide on its validity and effect? If these were to be answered in the affirmative, then the result simply was that the Lord Advocate was _per vias aut modos_ substantially invested with the royal prerogative of pardon. Mr. M'Neill, on behalf of Hare, had nothing to add to what was contained in the printed information for his client.

The first judge to give his opinion on the case before the Court was Lord Gillies, who, after complimenting the Lord Advocate for having, by his action in the charge against Burke, saved the country from an "indelible disgrace," gave it as his opinion that his lordship was ent.i.tled 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 t.i.tle of the private party to prosecute was clear and indisputable. By the Act 1587, cap. 77, and a prior enactment, 1436, pursuits at the King's instance were only subsidiary; and even at the present time, after various changes, the private right of prosecution was, he believed, as sacred and as indisputable as that of the Lord Advocate. Then, on the question of _socii criminis_, his lordship said that anciently a _socius_ was, as a general rule, not admissible, and had no immunity; but by the Act 21 Geo. II., c.

34, an accomplice to theft or cattle-stealing was admitted, and immunity was granted him if his evidence proved the guilt of the prisoner. In 1770, in the case of Macdonald and Jameson, the doctrine was laid down, not that an accomplice giving evidence was discharged of the crime, but merely that his examination might _go far_ to operate as an acquittal from the crime as to which he was examined. By a decision in 1794, a _socius_ was declared safe; first, if he were _examined_ as a witness; and second, if he _spoke out_. No doubt there had been a great extension of the law, but taking the only statute that was in existence, they would find that it only gave impunity to him who had been examined, and not to him who might have been cited and not examined. It was said Hare was ready and willing to give evidence on the two charges against Burke that were not remitted to the jury; but this the court could not know, and, at any rate, an examination as a witness, which _alone_ by law, even as extended by practice, gave indemnity, did not take place. As for the relationship existing, in virtue of the compact, between the Lord Advocate and Hare, it was one thing for his Lordship to apply for and obtain a pardon from the Crown, and another thing to have power to give a legal exemption from trial to a criminal, merely by citing him as a witness.

Lord Pitmilly, however, took another view of the case. He concurred generally in the historical _resume_ of the law as given by Lord Gillies, though he differed in his conclusions. "I feel intensely," said his Lordship, "for the relatives of Wilson; I sympathise also with the public desire to bring a great criminal to justice; but I feel more for the security of the law; and I hold no consideration so important, as that public faith, pledged by a responsible officer, and sanctioned by the Court, in pursuance of uniform practice, should be kept inviolate, even with the greatest criminal."

The history of the law relating to _socii criminis_ was very learnedly reviewed by Lord Meadowbank, who submitted that it was clearly established, from a train of practice running through a period of upwards of two centuries and a half, that _socii criminis_ had been admissible witnesses in the law of Scotland. Such being his opinion, he should have presumed at all times, and under all circ.u.mstances, the examination of a witness must have operated _ipse facto_, as an immunity to him from subsequent prosecution for the crime respecting which he was called upon to give evidence. In truth, he declared, so irreconcilable to all sound reason would it be to hold, either that no such immunity was thereby obtained, or that there was not created an equitable right, as in England, to a pardon, that he could not imagine how any _socii criminis_ ever could have been examined. In the present case he considered the promise of the Lord Advocate barred the private prosecutors from taking action against Hare for punishment, though it in no way interfered with their right of prosecution for a.s.sythment, and he was clear that this warrant ought to be discharged, and the complainer ordained to be set at liberty.

Lord Mackenzie went over much the same ground as his judicial brethren, and in delivering his opinion that Hare ought to be set at liberty, he said:--"Remembering, as we must do, the dreadful evidence he gave, it is impossible to contemplate his escape without pain,--a pain always felt, in some degree, in every case where an accomplice in a great crime is, however necessarily, taken as evidence for the Crown, but never, I believe, felt more strongly than the present. I sympathize with that feeling; but I feel not less strongly that this man, however guilty, must not die by a perversion of legal procedure,--a perversion which would form a precedent for the oppression of persons of far other characters, and in far other situations, and shake the public confidence in the steadiness and fairness of that administration of criminal justice, on which the security of the lives of all men is dependent."

Lord Alloway, on the other hand, felt bound to differ from the opinions of the majority of his brethren, and to concur in that given by Lord Gillies.

He conceived that Hare might have a protection as to the murder of Campbell or Docherty, he having been a witness against Burke and M'Dougal in their trial for that murder, but he doubted if that protection extended to the other two charges, as to Wilson and Paterson, or in any other crimes for which Burke was never tried. As to the position of the Wilsons, it was his opinion that a private prosecutor had an undoubted right to prosecute to the highest doom every offender who had injured him, and for the punishment of all offences in which he had an individual interest.

This opinion was founded upon the authority of every inst.i.tutional 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 circ.u.mstances, 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 the course taken by the Lord Advocate in retaining Hare and his wife as evidence, for had not that been done it was probable no verdict such as was given would have been come to by the jury. As to Hare's position, it seemed to him that the Lord Advocate had an undoubted privilege, according to long and established usage, of selecting from those suspected of such crimes such persons whose evidence he might deem material to secure the ends of public justice, and to a.s.sure 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 ent.i.tled 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 circ.u.mstances 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 p.r.o.nounced the following judgment:--

"The Lord Justice-Clerk and the Lords Commissioners of Justiciary having resumed consideration of the bill of advocation, suspension, and liberation for William Hare, with the Informations given in for both parties, in obedience to the order of Court of 26th January last, and Answers given in for his Majesty's Advocate, in compliance with said order; Pa.s.s 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 p.r.o.nounced that it was incompetent to prosecute Hare criminally, there was presented to the Sheriff a pet.i.tion intimating the intention of Mrs. Wilson and her daughter to prosecute him civilly for the sum of 500 in name of a.s.sythment for the murder of their relative, and praying that, as he was _in meditatione fugae_, 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 pet.i.tion: that the deponents are credibly informed, and believe in their conscience, that the said William Hare is _in meditatione fugae_, 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 circ.u.mstances, he has not been brought to trial for the offence, and there is reason to believe that he will speedily be liberated from custody; and owing to the prevailing belief of his guilt, and the popular indignation which has in consequence been raised against him, it is impossible that he can, with safety to his life, remain in Scotland, particularly as he has been suspected to be guilty of other murders; and, therefore, they have no doubt, that as soon as he shall be liberated from custody, which they believe will be this evening, he will use utmost and immediate exertions to escape from Scotland to Ireland."

This form having been gone through, Hare was brought in, and was asked if he were concerned in killing James Wilson, to which he replied that he would say nothing about it. He was then questioned as to his intentions when liberated, but he remained silent all through. Mr. Monro, the agent for the pet.i.tioners, moved the Sheriff to grant a warrant of commitment, and offered to produce evidence that Hare was _in meditatione fugae_ should his lordship desire it. The Sheriff appointed a proof for that same day.

The first witness examined was William Lindsay, a prisoner in the Tolbooth of Edinburgh, who stated that two or three days before Hare told him that if he were liberated he would leave this country and go home to Ireland immediately. John Fisher, the head turnkey in Calton Jail, corroborated.

Hare was then informed by the Sheriff that if he intended to remain in Scotland, any witnesses he might wish to speak to that fact could now be examined. The prisoner's tongue was loosened, and he replied that he had no money, and must go somewhere to get work; that he had no domicile in this part of the country, and could not remain in Edinburgh; and that as a matter of fact he did not know whether he would remain in Scotland, or go to Ireland or England in quest of employment. The Sheriff accordingly granted a warrant for the detention of Hare until he found caution to answer to any action that might be brought against him, in any competent court, for payment of the sum mentioned in the pet.i.tion.

Hare was thus again thrown back, and it must have seemed to him that if by turning informer against Burke he had saved his life, he was to be deprived of enjoying what remained of it as a free man. But the Wilsons and their friends saw that to prosecute the action for a.s.sythment could lead to no good result. Hare was penniless, and it was therefore hopeless to seek compensation from him, while if they did so they would be throwing away money needlessly in the process. The warrant was withdrawn on Thursday, the 5th of February, and Hare was at last free to go where he pleased.

CHAPTER x.x.xII.

_Popular Feeling against Hare--His Behaviour in Prison--Withdrawal of the Warrant--His Liberation and Flight--Recognition--Riot in Dumfries, and Narrow Escape of Hare--Over the Border--Ballad Version of the Flight._

The warrant _in meditatione fugae_ by the relatives of James Wilson against Hare was withdrawn quietly on the afternoon of Thursday, the 5th of February, and the authorities at once made arrangements for his liberation. They knew that to place him outside the prison gates and allow him to shift for himself would only be to endanger his life at the hands of the excited mob of Edinburgh, who would, under the high feeling then prevailing, have scrupled little about hanging the detested criminal and informer from the bar of the nearest lamp-post, or to have thrown him from the Castle-hill. Hare knew the feeling that was against him, but he affected to treat it with scorn. Even while the proceedings were being taken against him, and it was doubtful if he would not be put upon trial, which would have meant certain conviction, he displayed a levity altogether unbecoming a man in the critical position in which he stood. He asked his agent, with a sneer, what was the value of Daft Jamie, and remarked that the price given by the doctors was surely too much, as if the poor lad been offered alive to any one he would not have been bought at any price. His opinion of the proceedings, therefore, was that the judges were wasting their time and their talent about a thing of no value.

On another occasion Hare and several fellow-prisoners were walking in the court-yard when some visitors were being shown through the establishment.

One of his companions turned to the strangers, and, pointing with his finger to the notorious criminal, said, "Here's Hare; look at him!" The eyes of the party were immediately turned upon the man whose crimes had made him so infamous, but he, with brutal nonchalance, stared them out of countenance, and remarked, "Pitch a shilling this way, will ye?"

It was but natural that in the state of public feeling the decision of the High Court of Justiciary in Hare's pet.i.tion 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 m.u.f.fled 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 his _quasi_ friend--"Good bye, Mr. Black, and I wish you well home."

Away the coach went, and Hare was 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 n.o.blehouse, the second stage on the Edinburgh road, Hare, knowing there were twenty minutes to wait, descended from his perch, and accompanied the inside pa.s.sengers 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 m.u.f.fled 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 circ.u.mstances, 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 pa.s.senger 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 "take that fellow out," and although others of the pa.s.sengers 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 ent.i.tled to some explanation of his extraordinary conduct, revealed to them the ident.i.ty 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.