§ MR. STIRLINGsaid, he wished to call the attention of the House to a very important case, which had caused great interest in Scotland in the course of the last autumn, and which was still of importance in its relation to the administration of public justice and to the public confidence and respect which that administration was to enjoy in the country. He might remind the House of the principal facts of the case to which he referred. On the afternoon of Monday the 7th of July last, the house of Mr. Fleming, accountant, in Glasgow, was discovered to have been the scene of a barbarous murder. The dead body of his house-keeper was found upon the floor of her bedroom, so mangled that it was evident that she must have been murdered after a desperate resistance. The family were at the sea-side, and at the time of the murder the house was inhabited only by the deceased woman and by Mr. Fleming, senior, an old man, eighty-seven years of age. That person, on being questioned, said he had gone to bed on the previous Friday night, leaving the deceased in the kitchen; that during 682 the night or towards morning he was awakened by a cry of distress, but did not take the trouble to ascertain the cause; and that next morning when he came down he found the door of the deceased's room locked, and thought she bad gone out and would not return. Notwithstanding her non-appearance on Saturday or Sunday, it was not until the afternoon of Monday that the door was broken open and the body found; and then it was also discovered that some silver plate and other articles had been stolen. Under these circumstances, suspicion attaching to old Mr. Fleming, he was in consequence imprisoned. Meanwhile, the plate was discovered at a pawnbroker's, and Jessie Maclachlan, the woman who had pawned it, was secured; and the evidence criminated her so far that she was committed to prison, and Fleming was set at liberty. On the 17th of September the case came on for trial: the prisoner, indicted for murder and robbery, pleaded "Not Guilty," and put in besides a special plea—that the murder had been committed by James Fleming. The trial lasted for four days. On the fourth day the judge summed up the evidence, and after twenty minutes' deliberation the jury of fifteen returned a unanimous verdict of "Guilty." The advocate depute then moved, on the part of the Crown, that sentence should be pronounced. At this stage of the proceedings the counsel for the prisoner read a statement drawn up in her name, giving a most circumstantial account of the scene on the fatal Friday night when the murder must have taken place. The chief points of that account were that Fleming had committed the murder, and that she in her terror and distress at the death of her friend had allowed herself to be persuaded to silence by a bribe of plate and clothes. The Judge then pronounced sentence. He said that it was part of his duty, not only to condemn the guilty, but also, as far as he could do so, to protect the innocent; that the accusation against Fleming only aggravated the crime of the prisoner; that he fully concurred in the verdict of the jury, believing that no other verdict could have satisfied the ends of justice; and that the statement which had been read, so far from affecting his judgment, left upon his mind the impression that it was a tissue of as wicked falsehoods as he had ever listened to. The trial and the original crime had strongly excited the public mind. The greatest interest was felt in all the proceedings. The 683 Scotch papers were full of the case, and it was also largely discussed in the London journals. Scotland was divided into two parties, one believing that the woman alone was guilty, and the other that Fleming had committed the murder. As far as he had heard, no other persons were suspected of the crime. Soon after the trial, observing that a petition for a pardon or commutation of the sentence was being got up to the Secretary of State, the jury who had returned the verdict agreed to hold a private meeting to determine whether, on a consideration of the woman's written statement and all the circumstances, they ought to join in the appeal for mercy. Fourteen of the jurors attended the meeting, and they were unanimous in a resolution not to interfere on behalf of the prisoner. Still a petition, very numerously signed, was presented to the Home Office in the usual way. The constitutional practice with reference to such petitions differed in the two countries. In cases tried in Scotland, the petition for mercy was referred, not to the Judge who had tried the case, but to the head of the Criminal Court, the Lord Justice Clerk, whose duty it was to confer with the Judge. He did not know whether that course had been followed in that case, but he presumed it had been; and he thought he was justified in assuming that the Lord Justice Clerk was in favour of carrying out the sentence of the Court; for if that learned Judge entertained any doubt on the subject, he would have expressed it; and in that case it was evident, from what subsequently took place, that the capital sentence would have been commuted without any further proceedings. Although the Lord Justice Clerk was satisfied, the right hon. Gentleman the Secretary of State was not, for he instructed Mr. Young, a very able member of the Scotch bar, to investigate the circumstances of the case. Mr. Young's inquiry was held on the 16th, 17th, and 18th October, in the Court of the Sheriff of the county of Lanark, with closed doors and without the examination of the witnesses on oath. As far as he was informed, the only persons present, while the evidence was taken, were the Sheriff of Lanarkshire, the Procurators Fiscal of Glasgow, and the prisoner's counsel. The result was a respite of the sentence on the 29th of October. It had been previously, on the 3rd of October, notified through the Lord Provost of Glasgow to the prisoner that she was to be reprieved till an in- 684 vestigation took place, and that unless the facts brought forward should confirm her statement, she was to entertain no hope of a commutation of the capital sentence. Her statement was to the effect that old Fleming had committed the murder, that she, a more bystander, had been, unfortunately, bribed to hold her tongue. From the terms of the respite, on the 29th of October, and of the intimation previously given to the prisoner on the 3rd, there was every reason to infer that the result of the investigation before Mr. Young had been to confirm her statement read between the verdict of the jury and the sentence of the Judge. He had no desire to cast any blame on the right hon. Gentleman the Secretary of State for the Home Department, who, he was sure, entertained a proper sense of the awful responsibility that devolved upon him, and had in that, as in all other cases, done what he conceived to be right. Nor did he question the propriety of sparing the life of the convict, which was clearly a matter for the right hon. Baronet himself solely to determine. But there were, nevertheless, circumstances in the conduct of this case which appeared to him to be open to such grave objection that he thought it his duty to state them to the House. In the first place, he wished to understand what the prerogative of mercy really was, and to what it extended? Did it confer on the Crown the power to remit wholly or in part the punishment awarded by a criminal court? Or did it enable the Minister of the Crown to review any capital sentence which might be pronounced in London or Edinburgh; to send such a sentence to be reviewed and revised by an inferior Judge, hearing over again the evidence already taken by a superior Judge, as well as evidence that had not been before the court by which sentence had been pronounced? If the latter supposition were correct, they might have the sentences of the Supreme Criminal Courts in the country reviewed and revised by gentlemen selected from amongst the Sheriffs of Scotland or from the benches of the County Courts in England. He might be told that the Commission intrusted to Mr. Young was not to review or revise the sentence, but merely to take evidence and report it to the Secretary of State; and that, in point of fact, no court of appeal had been held in the office of the Sheriff of Lanarkshire. Technically, that might be true; but if that court was not a court of 685 appeal, it was so like it that the citizens of Glasgow had not been able to perceive any difference between it and a court of appeal. In point of fact, he thought Mr. Young had held a court of appeal; for how was he to know that the evidence brought before him for the first time was really new, unless the old evidence was also submitted to his consideration? A very careful and searching comparison of the old and new evidence was necessary; and that was doubly necessary when the trial and the inquiry were held under circumstances so widely dissimilar; when the facts were to be adjudicated upon under very different conditions; when in one case the evidence was taken before the Judge under the solemn sanction of an oath and in the face of the country, and in the other it was taken in secrecy without oath and with very little chance of publication; when the evidence given at the trial had been followed word by word by the Judge and jury who were to decide the case, and that given at the inquiry was to be ultimately received or rejected by a person sitting four hundred miles off at Whitehall. In February 1860, the late Sir George Lewis, at that time Home Secretary, in one of the most lucid and exhaustive of his speeches, opposed a Bill for the establishment of a court of appeal for criminal cases. The main argument of the right hon. Gentleman was, that it would be very unwise to remove from Judges and juries that wholesome sense of responsibility which arose from the knowledge that their proceedings were final. He believed the country held the same opinion on that subject as the right hon. Baronet; but cases like the present might compel both the House and the country to reconsider that opinion. They might arrive at a different conclusion if it appeared that the prerogative of mercy had been silently and step by step growing into a court of criminal appeal—a court established they knew not how, consisting of they knew not whom, appointed at the mere will and pleasure of this or that Secretary of State, taking evidence in an unusual and suspicious manner, and working under arbitrary and perhaps extemporized rules—both the evidence and the rules being removed from challenge or question, by being placed under the broad shelter of the Royal prerogative. He would not press that point further, but would suggest it for the consideration of the constitutional lawyers in the House.
686 An impression prevailed in Scotland, he knew not on what foundation, that the learned Lord Advocate had taken a somewhat active part in the transactions which passed between the trial and the respite, and the statements that he had been in correspondence with the Home Secretary seemed to lend some colour to the impression. He hoped it was not so, for the Lord Advocate's functions were already varied and conflicting enough without his claiming a share in the exercise of the prerogative of mercy. The Scotch Members well knew the indefinable and elastic character of his powers. If any one went to the Home Office or the Treasury on Scotch business, ten to one but he was referred to the Lord Advocate; and if he went to the Lord Advocate, ten to one but he was referred back to the Treasury or the Home Office. He wielded very large power, with but a very small responsibility, There was, however, one part of his duty, of which he could not shift the burden of the responsibility upon any other officer or office. He was the public prosecutor in Scotland; and there were therefore the gravest reasons why he should have nothing to do with the prerogative of mercy. Was it to be tolerated that the right hon. and learned Gentleman, in whose name every indictment ran, and who was responsible for the conduct of every criminal trial, who might stop a prosecution or a trial at any moment, should appear one day in court to marshal facts and press a charge against a prisoner, and so obtain a capital conviction, and the next day repair to the Home Secretary and say, "I have been somewhat too precipitate and too successful, and I must now call upon you to put into operation the prerogative of mercy."? This, he believed he might say, had certainly not been the practice of some of the learned Lord's predecessors. He hoped an opportunity would be taken of assuring the House that the impression of the public that his right hon. and learned Friend had taken an active part in the affair was a mistaken one.
He came now to the last and most painful part of the subject, and which was the most difficult to deal with—the treatment which Mr. Fleming received at the hands of the Home Office. On the 3rd of October the right hon. Gentleman wrote, or caused it to be written, that the prisoner Maclachlan was to be informed, that if the investigation about to commence did not confirm the truth of her statement, she must not hope for a commutation of her sentence. On the 687 29th of October she was informed that her sentence of death was to be respited until further orders, or, in fact, that she was to be kept to hard labour for the rest of her natural life. Was it possible to read those two letters together—to consider the words in one, and the silence in the other, without believing that the Home Secretary must have been satisfied that the woman's statement had been confirmed? He should be ashamed even to suggest that the Home Secretary might have permitted such letters to be written in his name if he had believed Mr. Fleming to be innocent; because he conceived that the suggestion would be an insult to the right hon. Baronet. The whole tenor of the correspondence compelled the conviction that the right hon. Baronet believed Fleming to be guilty. But even supposing that such had not been the belief of the right hon. Baronet, and that he had not perceived the direct inference to be drawn from his own words, he was not long left in ignorance that that inference was drawn by the public. The newspapers must have informed him of it—if Secretaries of State ever condescended to read newspapers—and the parties most interested soon brought it under his notice. The agents of Mr. Fleming, Messrs. Smith and Wright, wrote on the 31st October to the Home Office. They pointed out to the right hon. Gentleman the popular feeling, and they said that the letters of the Home Secretary could lead to no other inference but that he believed their client to be guilty. They therefore invited him to remove the impression which the letters had created. The right hon. Gentleman replied that he must decline to give any opinion on the subject. Messrs. Smith and Wright again wrote to him on the 7th of November, and on the 14th of November, having relented somewhat, as it appeared, in the interval, he replied, or at least Mr. Clive replied for him—
That Sir George Grey instituted the inquiry, under the very peculiar circumstances of this case, in order to assist him in deciding whether sufficient doubt existed, as to the share which the prisoner Jessie Maclachlan had in the commission of the crime to justify the commutation of the capital sentence. The result satisfied Sir George Grey that the whole facts relating to the case had not been submitted to the jury at the trial, and that sufficient did exist in the point mentioned to justify him in recommending a commutation of the sentence to penal servitude for life. But the result of the inquiry was far from removing all uncertainty, nor could it justly be held to fix a share of the guilt on any other person, especially when such a person was not represented at the inquiry.688 The agents, to whom that letter was addressed, replied, on the 17th of November, that the popular feeling having been much strengthened by the previous language of the Home Secretary, had not been removed even by his present admission, and they said, "Under the circumstances it is the universal opinion that the tendency of the evidence taken before Mr. Young has been to criminate our client." On the 21st of November the Home Secretary refused any further satisfaction, and the correspondence closed. Surely, the correspondence could hardly leave any other impression on the public mind than that the Home Secretary believed Fleming guilty of the crime. He must repeat that it would be unfair to the right hon. Gentleman to assume that he would have written these letters had he believed him to be innocent. The language which he had used in regard to Mr. Fleming, even in the letter of the 14th of November, was not such as an English gentleman used when he was withdrawing a statement which he had made inadvertently or under wrong information. The House would observe, too, that in that apology—if apology it could be called—if there was one word for Mr. Fleming, there were two for Sir George Grey. If "the result of the inquiry" had been "to fix a share of the guilt" on Fleming, it would have been clearly the Home Secretary's duty to have placed him at the bar to be tried for the crime. But under no circumstances could it be the duty of the Home Secretary to write letters which, by their silence as well as by their statements, by inference and by innuendo, stigmatized a man and inflicted on him that kind of damage which would have been inflicted on him if he had been placed at the bar, and the verdict against him had been the Scotch verdict of "Not Proven." An opinion prevailed that Fleming, having been a witness in the case, could not afterwards be tried for the crime. He had made inquiries on that point, and while some of his legal friends were of that opinion, others, and among them some eminent authorities, took a different view. He hoped they would have a positive assurance on the point. But even if it were the law of Scotland that a person having been called as an ordinary witness—not as Queen's evidence—could not be placed at the bar for the particular crime respecting which he had given testimony—surely Mr. Fleming could have been tried for perjury, an offence of which he 689 had unquestionably been guilty if he had committed the murder. For one or other of these crimes it was the duty of the Home Secretary to have seen that he was tried, instead of blasting his reputation and that of his family by letters such as those included in the published correspondence. That many of the most intelligent persons in Glasgow agreed with him in thinking so was evident from a memorial which, having been placed in the Exchange and other places of public resort, was in a few days signed by 2,700 of the leading citizens, and presented to the noble Lord at the head of the Government in October last. These memorialists stated that a searching inquiry was necessary, and complained that, the public trial by judge and jury had been set aside, and a private investigation by a secret tribunal had usurped its place. They also called attention to the fact that the remission of sentence in the case of the prisoner without any explanation had a tendency to point to a man as criminal who was untried, and presumed to be innocent, and thereby inflicted upon him and his posterity a wrong of the most cruel description. There could be no doubt that the Home Secretary, who seemed to be turning the Royal prerogative of mercy into an appeal court in criminal cases, was making a great innovation in the Constitution. He hoped the House would maturely consider this important subject, and at least that it would not sanction the creation by the Home Office of a new punishment, a punishment to be inflicted at the arbitrary will of the Secretary of State, and to consist of imputations thrown upon the character of individuals. As the only means of ascertaining what circumstances there were in this case which justified the creation and infliction of such a punishment, he conceived that he had a right to claim the publication of the evidence taken before Mr. Young. Some portions of that evidence, indeed, had already been published. The proceedings before Mr. Young were so conducted that one of the Glasgow newspapers, which, with great energy find ability, advocated the cause of the prisoner, stationed a reporter at the door of the room in which Mr. Young was sitting, and thus obtained from a number of the witnesses as they came out information as to the evidence they had given. He was only asking, therefore, that the remaining portion should be given to the public, so that the whole evidence might appear in a complete 690 form. It had been said, he did not know on what authority, that the papers had hitherto been withheld, because the agents for Mr. Fleming had not thought fit to ask for them. The printed correspondence sufficiently rejected this misstatement. It was plain that Messrs. Smith and Wright had asked for the evidence in November last, and they were still most anxious, for the sake of their client, that it should be produced. That no doubt might remain on this point, they had addressed to him, on the 24th inst., a letter in which they used these words—Mr. Fleming and his family are still most anxious to have the evidence published, and to have an opportunity of testing its real value, and wait with much anxiety the result of your Motion.He therefore hoped the Home Secretary would agree to his Motion, which was that an Address should be presented for Copies of the Proceedings at the trial of Jessie M'Intosh Maclachlan, convicted of murder at the Circuit Court at Glasgow in September 1862, and of the Evidence taken at the subsequent inquiry before Mr. Young.
§ MR. SPEAKERsaid, the hon. Member could not make his Motion, because an Amendment to the Motion for going into Committee of Supply had already been put and negatived.
§ SIR GEORGE GREYSir, although the Motion cannot be formally put, I wish to make a few observations on the statement of the hon. Member. He was quite right in supposing that I acted in this case under a deep sense of the responsibility which attaches to any one holding the office which I have the honour to fill in advising the Crown in the exercise of the Royal prerogative of mercy, especially where capital sentences are involved. It is a solemn responsibility—a most painful duty; but, at the same time, I cannot accept the doctrine of the hon. Member that the Secretary of State is bound to consider the verdict of a jury in a capital case as absolutely final, and to refuse to investigate any alleged facts which may be stated to him tending to alter the view of the case submitted to the judge and jury. The duty of a Secretary of State would be easy if in all cases he refused to receive any appeal for mercy founded upon facts not stated at the trial. But he cannot shrink from the performance of the duty which is now imposed upon him, however painful it may be; if 691 he did, his conduct would meet with universal condemnation. I have endeavoured in all cases to perform that duty to the best of my ability; and although I do not say that I have not come sometimes to an erroneous conclusion, yet I have tried honestly to discharge it according to the convictions of my own mind and conscience. In the present instance, I could not, consistently with the discharge of my duty, have taken any other course. The case was most extraordinary, and the hon. Member has only partially stated the circumstances; but I am not going into the evidence, because this House is not competent to sit as a court of appeal. I may, however, say, that it was impossible that the murder could have been committed except by one of two persons. Fleming was arrested in the first instance on suspicion, but was afterwards discharged, and his evidence was admitted on the trial of Maclachlan. Here I may say that I was distinctly advised, without doubt or hesitation, by those to whom I was entitled to look for a correct exposition of Scotch law, that Fleming having once been admitted as a witness, was incapable of being put upon his trial for the murder. Eventually the woman Maclachlan was brought to trial and convicted; and I am bound to say that upon the evidence laid before the jury in the case they could not honestly have found a different verdict. The evidence was conclusive as to her guilty participation in the murder, and no doubt has ever been entertained by me on that subject. But after the verdict was returned, a most extraordinary proceeding took place. The defence was a general defence of not guilty, and the agents and counsel for the prisoner put the Crown to its proof, hoping to obtain an acquittal. They failed; but no sooner was the verdict returned than the counsel for the prisoner read, with the sanction of the Judge, a long statement which it was afterwards proved had been taken down from her own lips five or six weeks before the trial, and was not framed as has been alleged with a knowledge of the evidence laid before the Court, and which she had urged her agents to rest upon as her defence, but which they declined to make use of, no doubt from a feeling that it admitted her guilt to such an extent as must have ensured a verdict against her. Before the sentence was pronounced, that statement was read—a statement professing to give a most detailed account of the circumstances of the night 692 when the murder was committed—a statement not inconsistent with the evidence adduced at the trial, but admitting her guilt to the extent of what we should call in England being an accessory after the fact, but which under the Scotch law would have rendered her guilty as a principal. The evidence given at the trial, accompanied by that statement, produced a most profound impression upon the public mind in Scotland. It produced the impression that justice had not been done, that the facts had not been fully and fairly laid before the jury, and, without denying the guilty participation of the woman, there was a very general feeling that great suspicion rested upon other parties besides the prisoner, and that justice would be defeated if she were executed and those other persons allowed to go absolutely free. I then laid the statement and accompanying report before the Lord Justice Clerk. The hon. Gentlemen is quite correct in saying that the Lord Justice Clerk, after communicating with Lord Deas, who took, no doubt conscientiously, a very strong view of the woman's guilt at the trial, was still of opinion that the verdict was right. I also think it was right, and that no fifteen or any other number of men could have found any other verdict on the evidence before them. But I believe, if the defence of this woman had at the trial been rested on the statement which she afterwards made, that a different state of facts would have been laid before the jury. The conclusion at which, under those circumstances, they might have arrived, it is, of course, impossible to tell; but I think the case would have assumed a different aspect, and that the verdict, however right as the case actually stood, might have been modified. I communicated with my learned Friend the Lord Advocate, whose most valuable assistance I am happy to say I had, on the subject of an inquiry as to the truth of the woman's statement, and wished him, if he thought such an inquiry expedient, to direct that it should take place in a way that was likely to prove most satisfactory. The mode of conducting it I left entirely to him. The whole of the statements made to me were laid before Mr. Young, a most eminent counsel at the Scottish bar, and I know of no one to whom the investigation might have been more properly intrusted. That gentleman took those means which were best calculated to test the truth of the prisoner's 693 statement. I am far from saying that the result established the truth of that statement. In many collateral points it might have done so. At all events, the impression left on my mind, and it was a very decided one, was, that there was sufficient doubt as to the share taken by the woman Maclachlan in the crime—although she was clearly a guilty party—to make it inexpedient, with reference to the-general feeling existing in Scotland on the subject, that the capital sentence should be executed, but there could be no doubt that she should be subjected to such a punishment as the law would award lo an accessory after the fact. With reference to the principle on which the Royal prerogative of mercy is to be exercised, I hold, as a rule, that where the case is clear and undoubted, where the jury have found their verdict, and the Judge entirely concurs in it, and where no new light is thrown on the facts by communication with the Judge, the Secretary of State ought to allow the law to take its course. But circumstances sometimes occur to modify that principle. I think it is most important that the administration of the law should not only be right, but that there should exist a general impression in the public mind of the country that it is right and just; and especially in regard to capital punishment is it undesirable that it should be inflicted where there prevails a general, I may almost say a universal feeling that there were circumstances in the case which rendered that course inexpedient. Now, I believed—and all that I have since heard has confirmed me in the conviction—that public opinion in Scotland would have been shocked if this capital sentence had been carried out. In the course of last year a murder was committed by a soldier, who deliberately loaded his carbine for the express purpose of shooting his comrade, and did kill him in cold blood. The prisoner was tried, convicted, and sentenced. But, owing to certain evidence adduced at the trial, although it was a clear case of murder, such a strong feeling prevailed that very great provocation had been given to the prisoner, that the Lord Lieutenant, the sheriffs, the magistrates, and other persons of influence in the county, represented that public opinion would be shocked by the execution of the man, and I felt that the sentence, just as it no doubt was in reference to the nature of the crime, could not be carried into execution with a due regard to the general 694 ends of justice. As the crime was one of a military character, I communicated on the subject of the conclusion at which I had arrived with the Commander-in-Chief, who was good enough to express his concurrence in the course I proposed to take. I mention this to show that a case may be quite clear and no ground for a commutation of the sentence may arise from any doubt as to the facts; and yet, if you mean to retain capital punishments at all, it may not be expedient, under some circumstances, to let the law lake its course. I think that capital punishments ought to be maintained, but I feel that they cannot be maintained if you stretch the law to the extreme and execute every sentence without regard to its effect upon public opinion. I do not now speak of public opinion as to the expediency of capital punishments—that is quite a different matter—and where petitions have been sent to me founded on objections to that principle, I have thrown them aside, because I feel that it is not for me, in my official position, to attempt to alter the law, but to carry it out to the best of my power, and with a due sense of my responsibility. I have now slated the course that I took in this case and I do not know that I could have acted differently. I might have said, like Lord Deas, that the statement put before me was a tissue of falsehoods, and refused to have it investigated. I found, however, that there were men of high principle, position, and influence in Scotland who gave credit to that statement, and that the general feeling of the community required its investigation. In deference to that public opinion, and in consonance with the dictates of my own judgment, I was anxious that it should be investigated; and after the inquiry took place, I felt that I should be wanting in my duty if I did not act as I have done. The hon. Gentleman has complained of the letters I wrote to the agents of Fleming. I was compelled to write them by the letters addressed to me by those agents. In one of the letters I stated distinctly, that having been admitted as a witness at the trial, Fleming could not then be put upon his trial and charged with any criminal offence in connection with this case. If I had said, that the jury having found this woman guilty of the murder, and the Judge having fully concurred in their verdict, she should be hanged, the general opinion I am convinced would have been 695 that I had shrunk from my duty. However responsible may be that duty, however unsatisfactory may be the means of informing the mind of a Secretary of State, and enabling him to come to a sound decision, I took the best means in my power of doing so, and acted according to my conscientious belief of what that duty dictated. In this case I had the benefit of the assistance of my learned Friend the Lord Advocate, to whom I left the conduct of the inquiry. But I wish it to be understood that I had the sole and undivided responsibility of advising the Crown in the exercise of its prerogative. I feel that in this case, as in every other, that responsibility rests upon me, or upon whoever may fill the office which I now hold; and as long as I hold that office I shall not shrink from endeavouring to discharge my duty according to my own convictions of what that duty is.
§ MR. STIRLINGasked whether the papers for which he had asked would be produced.
§ SIR GEORGE GREYI should be glad if the papers could be produced, but the difficulty is that by their production a dangerous precedent may be established. It will be highly inconvenient for the public interest if this House is to become a court of appeal in criminal cases.
§ MR. BLACKBURNsaid, the case before the House was a very peculiar case. It involved the character not merely of an individual, but that of a respectable family, and the parties who had been brought under suspicion were anxious that all the evidence should be laid before that House, not as a tribunal of appeal, but that an opportunity might be given them of seeing the case against them, and answering it if they could. He wished to correct the right hon. Gentleman's impression as to there having been any general opinion in Scotland that the woman Maclachlan was not guilty. There was, he admitted, a great clamour got up in Glasgow, by the newspapers; but that was one of the effects of giving way to and encouraging those who made it. He did not think a dozen sensible men could have been found in Scotland who had the slightest doubt that the woman, unaided and alone, committed the murder.
§ MR. DENMANsaid, he could confirm the statement of his right hon. Friend the Home Secretary, as to the state of public opinion in Scotland. He happened to be travelling there at the time the case occu- 696 pied the public mind; he read every word of the evidence, and discussed the case with every fellow-traveller, and he could not find a single Scotchman who had not only formed a judgment that Maclachlan ought not to be hanged, but who was determined she should not be hanged. One Scotchman declared it would take three regiments of soldiers to hang her. He wished to be informed by the Lord Advocate whether the state of the law in Scotland was as had been represented by the right hon. Baronet—namely, that a witness on a trial for murder could, under no circumstances, be afterwards put upon his trial on a charge connected with that murder. It was scarcely credible that in a civilized country such a scandalous state of law could exist. If the right hon. Baronet, had represented it correctly, the sooner the law was altered the better.
THE LORD ADVOCATEsaid, that he could not refuse to respond to the appeal which had been made to him. His opinion undoubtedly was that by the law of Scotland a person who had given evidence on a trial could not afterwards be tried on the same charge. He did not hold with his hon. and learned Friend that that was necessarily a bad state of the law. It was exceedingly desirable for the ends of justice that witnesses should be able to give testimony without the fear of personal consequences. It was usual for the Judge, when he observed anything suspicious in the circumstances of the witness, to warn him that nothing he could say would be brought against him, and that he could not be tried in relation to the matter before the Court. Although, in the present instance, that caution was not given, his opinion was, that if they had attempted to place Fleming at the bar, the plea would have been successfully taken, that having been a witness, he was not liable to be proceeded against. Reference had been made to the part he was reported to have taken in the inquiry. He took only that share in it which he uniformly did when his right hon. Friend the Home Secretary desired to have any matter whatever investigated. In an ordinary case, where there was a petition for the mercy of the Crown, it was not his habit to interfere, because the Home Secretary referred it to the Judge who tried the case, and his opinion generally decided the answer to the application; but when new facts were stated for the first time after the verdict which required examination, it was the 697 uniform practice to use the machinery of the Lord Advocate for the purpose. It was certainly much better to employ a responsible officer, with a responsible staff, to do the duty than to leave it, as in England, to the committing magistrate or the constabulary. He was not aware that any other machinery had been used in Scotland for the investigation of crime. It was assuredly not his part, as the public prosecutor, to throw doubt on a verdict which he had himself obtained. Therefore, when there were no new facts brought forward, the Lord Advocate did not interfere at all. On the other hand, it was quite as much his duty to protect as to prosecute. If, on any occasion, he found grave reason to doubt whether a verdict which had been passed at his instance was just and true, he held himself entitled to represent the matter to the Home Office. Although the circumstances of the case before them were peculiar, the case was very simple, and the procedure did not deviate from the ordinary course. The murder took place on the 4th of July, but was not discovered till the 7th. The only inmate of the house beside the murdered woman was the old man Fleming. On the afternoon of the 7th the door of the woman's room was broken open, and her body was found there. The old man said that he had gone to bed at nine o'clock on the evening of the 4th; that when he got up the next morning the door was locked, and that he remained in the house from the morning of Saturday to the afternoon of Monday. Although he saw and communicated with many persons, not a word was said of the disappeance of the housekeeper till his son and grandson returned. It was discovered that some plate had been carried out of the house and pawned. That plate and the bloody clothes were traced to the possession of Jessie Maclachlan. She denied that she had been in the house on the night of the murder, and maintained that she had got the articles from old Fleming. That story was so palpably false, that on the best consideration which his learned friend the then Solicitor General could give to the case, it was resolved to try Maclachlan and to take Fleming as a witness. So the case went before the jury. After the verdict had been returned, the counsel for the first time read a long consistent statement, in which the woman confessed that she was an eye-witness of the murder, and described the whole proceedings with the most minute detail, 698 from the time she went into the house at eleven o'clock on Friday night till she left at half past eight next morning, mentioning also many collateral circumstances to which others could speak. She said that she had been sent out by Fleming for whisky; that when she came back, she found there had been a quarrel, and that the old man had inflicted injuries on his housekeeper; that an attempt was made to revive her, but to no purpose, and that then the old man, becoming frantic, destroyed his victim with a cleaver, and threatened to do the same to Maclachlan if she ventured to breathe a word of the matter to any one. It sometimes happened that great culprits managed to make up an adroit story after hearing the evidence; but it should be borne in mind that the statement of Maclachlan was made before the trial; that the woman herself was anxious it should be read in the course of the trial; but, although it was placed in the hands of counsel, it was not produced till after the verdict. That was a very material element in the case. He did not see how, when a petition for mercy was, under such circumstances, addressed to the Crown, his right hon. Friend the Home Secretary could refuse to investigate the matter. It was impossible to have a new trial, or to set up a judicial tribunal to control the verdict. All his right hon. Friend could do was to avail himself of such machinery as Scotland offered, and he did so. According to the usual rule the Advocate Depute who was at the trial would have been directed to make an inquiry. It happened that that gentleman was not at home, and the duty was intrusted to his learned friend Mr. Young, who had since become Solicitor General. He undertook it simply as a deputy of the Lord Advocate and not as Commissioner for the Home Office. The result of the inquiry was not to criminate Fleming, but to show that there were material circumstances which were not before the jury, and that there was a substantial doubt in the case as submitted to the jury. What his right hon. Friend the Home Secretary thereupon did was, not to pardon the culprit, but to spare her the last penalty of the law; and in his opinion he could not avoid taking that course. That was by no means the first time such an inquiry had taken place. There was a case in the previous year which illustrated the regular mode of procedure. Three men were convicted of a felonious assault upon a woman. 699 After the trial, two of them stated that the third was innocent. That statement was sent to him from the Home Office for investigation. He sent it to the Senior Advocate Depute, who found that it was quite true, that the third prisoner had been erroneously identified, and that he was really innocent. The man accordingly received a pardon. What other mode was there of dealing with such cases than that which had been followed? They were, of course, matters of deep anxiety, and he doubted whether any good was done by discussing them in the House. He believed the responsibility of the Home Secretary was so grave that he ought to be left unfettered, and that he should not have before his eyes the fear of any objections being taken in a popular discussion in the House, or of being charged with overriding the verdict of the jury or the opinion of the Judge. He was quite satisfied that no one could have seen so much of the proceedings as he had done, and come to another conclusion than that which had been arrived at by his right hon. Friend.
§ MR. MUREwas understood to say that there were one or two points on which he differed from his right hon. and learned Friend. It was quite true that it was the duty of the Lord Advocate to protect those whom he believed to be innocent, as well as to prosecute those whom he believed to be guilty. If the Lord Advocate found that some information had not been laid before the court, which led him to doubt the justice of the verdict, he was undoubtedly bound to communicate the fact to the Home Office, leaving it to the Secretary of State to decide what course should be followed. It appeared to him a very serious matter indeed to call on the Lord Advocate, who, as public prosecutor, had obtained the verdict, to assume the responsibility of conducting an investigation into the circumstances of the case, with a view to advising the Crown to commute the sentence. That did not fall within the province of the Lord Advocate. He always understood that after the verdict had been obtained the Lord Advocate was out of court. He might refer to the following extract from the second volume of Hume, page 495, in corroboration of his view:—
If the Judge has no power to grant a remission of his sentence, still less does any such belong to the prosecutor, at whose instance the judgment has been obtained. Thus far the law countenances his lenity and even his fickleness, that it does not constrain him to persist in his process 700 because he has brought one, but allows him to desert the instance at any period of his proceedings, not excepting even the latest after verdict of guilty has been returned. But if judgment has once passed on the verdict, both charge and prosecutor are then out of court, and he is thenceforth but as one of the people, all of whom have now an interest in the execution of justice on a criminal, whose guilt and its consequences have been openly declared in due course of law.In his opinion, the law did not recognise the interference of the Lord Advocate after the verdict had been obtained, either in reference to the commutation of sentence or in directing the Home Secretary in the matter.
THE LORD ADVOCATEobserved, that his hon. and learned Friend misunderstood him. He did not direct the investigation; but, in addition to being public prosecutor, he was the head of the Home Office in Scotland, and it was in that capacity he obeyed the instructions of the Secretary of State.
§ MR. MUREsaid, he would say only a very few words on one or two other points of the case. With all deference to the Lord Advocate, he must say there was no authority in the law of Scotland for the doctrine which had been laid down, that a person once examined as a witness on any criminal charge could not afterwards be tried for his supposed participation in the crime. It was undoubtedly the law of Scotland that where a party, being socius criminis, was put in the witness-box, and the Judge told him that if he told the truth he need not be apprehensive of the consequences—if such a witness told the truth, he was protected by the law of Scotland. But where a party was put in the witness-box to give evidence, there being no suspicion against him at the moment that he was particeps criminis, and he gave his evidence, not being warned, if it should afterwards turn out that there was reason to believe he had himself committed the crime, there was nothing in the law of Scotland which said he should not be tried for it. Looking to the peculiar circumstances of this case, unless there was some very absolute and imperative rule in the Home Office, he thought the evidence taken before Mr. Young should be produced. He would refrain from expressing any opinion on the matter; but having regard to the peculiar circumstances and the anxiety of the public to see the whole of the evidence, he trusted the right hon. Baronet would allow the papers to be produced.
§ MR. FINLAYsaid, he wished to join in the expression of the hope that the right hon. Gentleman would give way, and produce the papers.
§ MR. DUNLOPsaid, he entertained a strong opinion that the Secretary of State could not have refrained from commuting the sentence without violating the feelings of the greater part of the people of Scotland—not merely those who were led away by newspaper paragraphs, but the quiet and calm thinking portion of the community. He did not think the woman innocent. On the contrary, taking her own statement to be true, according to the Scotch law she was guilty, "art and part;" but there was one upon whom grave suspicions rested, who was not only not tried, but put in a position in which he could not be tried. The girl's statement gave an explanation so perfect that it added strength to the feeling that the man ought to have been tried, and that to execute the woman would be a violation of justice; for if not true, it was a work of genius not inferior to that of Defoe. It was not enough to warrant the execution of a sentence of death that it should be just in the sense of being deserved, but that it should also be just in the sense of being fair with reference to others reasonably suspected of participation in the crime; and if this woman had been hanged, while Fleming had been screened even from trial, the effect would have been most mischievous, as is always the case when a sentence revolting to the right feeling of the country is carried into execution. As to the papers, he thought it fair, if Fleming and his friends wished to see the results of the subsequent inquiry, that these should be communicated; and if any technical or official difficulty were apprehended for the future, he would suggest, that to avoid creating a precedent, the right hon. Gentleman might, instead of presenting the papers to Parliament, give them to the agents, with full permission to make what use of them they pleased.
§ MR. BUCHANANsaid, he hoped that the right hon. Gentleman the Home Secretary would, if he did not consider it inconsistent with his duty, comply with the request that the papers should be printed. He quite agreed that that House ought not to be made a court of appeal in criminal cases; but the discussion which had taken place rendered it necessary that some steps should be taken to allay the excitement which existed on the subject.
§ LORD CLAUD HAMILTONsaid, he hoped the Home Secretary would not persist in his refusal to allow the papers to be published, because the right hon. Gentleman had in effect pronounced Mr. Fleming guilty of the murder. He said it was clear that only two persons could have been guilty—namely, the prisoner and Fleming; and also, that it was clear that the woman could not have been guilty alone. It was clear, therefore, that he meant that Fleming was guilty. But after a man had run the risk of being placed on his trial; after he, a man eighty-seven years of age, had been subjected to a rigid cross-examination, in the course of which he neither stumbled nor faltered in his evidence, notwithstanding the great skill of the counsel for the prisoner; after the fifteen jurors, by a unanimous verdict, had in effect declared that the old man was innocent; after the Judge had expressed his concurrence in the verdict, and after he had, moreover, intimated his opinion that the paper put out by the prisoner was a tissue of falsehoods, and that the prisoner was by its means attempting to commit a second murder, it seemed rather unprecedented to make Mr. Fleming the subject of an imputation which, in any other place, would have afforded grounds for an action for libel. As to the public feeling in Glasgow being in favour of the woman, it was the most disgraceful exhibition ever witnessed. She was called the "heroine of the tragedy," and portraits of her in the scene of the murder, well smeared with blood to gratify the taste of her admirers, were exhibited for sale, whilst the walls were placarded with the words, "Hang old Fleming" It was said that the feeling in Scotland was unanimous against the execution of the woman; but having been in that country at the time, he knew that a great number of the most respectable people in Glasgow were indignant at the unworthy means adopted to excite the public mind in her favour. He had asked a noble Lord, at whose house he was staying, whether he thought it right that such misrepresentations should be allowed to pass unnoticed; to which the noble Lord replied that he should deem it a personal insult to his old and valued Friend the Secretary of State to believe it possible he could be induced to give way by such unworthy clamour. It had been said that that House ought not be made a court of appeal in criminal cases, and he agreed in that view; but then, when a question did arise, care should 703 be taken not to argue it so that guilt must be imputed to an untried person. The old man was properly in the house, but the woman, Jessie Maclachlan, was not a resident there. She had been in the habit of borrowing money of Jessie M'Pherson, and on the night of the murder she went to the house to obtain a further loan. It appeared, afterwards, that she obtained money to pay her rent and to redeem her clothes. Those were facts which were proved, and which ought to have been stated by the learned Lord. He trusted that the Government would not decline to give the evidence upon which the Secretary of State had acted in commuting the sentence.
§ MR. CRUM-EWINGsaid, he also hoped the Home Secretary would yield to the wishes of the Scotch Members, and would produce the evidence taken upon the subsequent inquiry.
§ SIR GEORGE GREYsaid, he would rather take time to consider whether he could comply with the request. If it were not that an objectionable precedent might be established, he should not object to produce the evidence.
§ MR. CONINGHAMsaid, he thought the case showed the necessity for some alteration in the law with regard to these secret courts of appeal, which were highly objectionable, and by no means calculated to inspire confidence in the administration of justice.
§ MR. STIRLINGsaid, he had not in any degree blamed the Government for sparing the life of Jessie Maclachlan, but be bad strongly, and he thought not unjustly, complained of the stigma cast upon an untried man.