§ MR. STIRLINGSir, it is with great reluctance that I again call the atttention 1532 of the House to the painful subject of which I have given notice. But having obtained these papers, and having given to them and the discussions out of which they arose my most serious attention, three main facts have so strongly impressed themselves upon my mind that I should be wanting in my public duty if I did not seek an occasion of submitting them to the attention of Parliament. Sir, to my mind these papers and that discussion prove three things:—First, that the law of Scotland, as regards an important part of criminal procedure, is either very defective or at least very uncertain; second, that the verdict of a jury, and the judgment of a Judge have been set aside by a private inquiry conducted in an objectionable manner, and proceeding on evidence of a very questionable character; third, that the Secretary of State for the Home Department has been wanting in due respect to those whose duty it is to administer justice to Scotland, and that he has also inflicted a serious wrong upon an innocent person concerned in this case. First, Sir, as to the state of the law of Scotland. So long ago as the 14th November, the right hon. Baronet the Secretary of State, in his letter to Messrs Smith and Wright, replying to their request that a judicial inquiry might be held on the conduct of old Mr. Fleming, stated as the law of Scotland, "that a person, having been examined as a witness in a criminal trial, cannot afterwards be subjected to a criminal prosecution in respect of the matter of such trial." This opinion was afterwards, on the 28th April, confirmed in this House by the Lord Advocate, upon whose authority it had, no doubt, originally been made. "My opinion," said my right hon. and learned Friend, "undoubtedly is, that, by the law of Scotland, a person who has given evidence on a trial cannot afterwards be tried on the same charge." This opinion of the Home Secretary and of the Lord Advocate appears to bear a meaning wider than I humbly venture to think it was intended to convey. I believe my right hon. and learned Friend intended us to understand—and I speak under his correction—not that no witness on a criminal trial could afterwards be tried for the crime on which he had given evidence, but that no witness for the prosecution could be so tried. Having taken every means in my power to ascertain the opinion on this matter of persons learned in the law of Scotland, I must say that I have found no lawyer 1533 equal in authority and eminence to my right hon. and learned Friend who shares his opinion. The opinion of those learned friends whom I have consulted generally agree with that of my hon. and learned Friend the Member for Bute (Mr. Mure), as expressed in this House, that if a person who is known to be implicated in the crime is placed in the witness-box for the prosecution, he is, supposing him to tell the truth, protected from the consequences of his evidence; but that if a person unsuspected of the crime happens to give such evidence, he is not protected in Scotland any more than in England from the penalty of any guilt which may afterwards be proved against him. The case of Mr. Fleming therefore stands thus:—Advised by my right hon. and learned Friend, the Home Secretary has announced that he cannot, by the law of Scotland, try Mr. Fleming for the offence of which he has also told us he believes him to be guilty. Advised by my hon. and learned Friend the Member for Bute, another Home Secretary, supposing him to take the right hon. Baronet's view of Fleming's conduct, would have caused him to be tried for the crime of murder. When I find two learned Gentlemen, each standing in the foremost rank of his profession, one holding and the other having lately held, the post of chief law officer for Scotland, and chief authority in this House for Scottish affairs, and each speaking, after ample deliberation, and under the responsibility of his position—when, I say, I find these two persons propounding across that table diametrically contrary opinions as to the law of their country, in a matter touching the life and character of one of their fellow-citizens, I think I have a right to say that that law is either very defective or very uncertain. Believing with the hon. and learned Gentleman the Member for Tiverton, that the law of Scotland, as stated by the Lord Advocate, is unworthy of a rational country, I most earnestly and respectfully press upon the legal Members of this House the necessity of obtaining some alteration of a law so defective, or a declaration of a law so uncertain. I come now, Sir, to the subject of the inquiry by which the right hon. Baronet professes to have been guided in setting aside the verdict of the jury and the judgment of the Judge. I wish to say at the outset, to avoid misapprehension, that if the right hon. Baronet had merely commuted the capital sentence passed on 1534 the convict, without himself passing sentence on an untried man, he would never have heard my voice raised in this matter. With regard to the remission of the capital sentence, I do not blame, and I never have blamed the course which he adopted. In dealing with so delicate and difficult a matter, the Secretary of State must be guided by his own feeling and conscience, and not by the feeling and conscience of any other man. He is not required by law or by equity to give any reasons for the view he takes, and it is obviously better that he should give none. Accepting the verdict of the jury and the sentence of the Judge without comment and without question, he is nevertheless free to institute further inquiry, and, if he sees cause, to remit the sentence wholly or in part. In this trial, however, the circumstances of the case itself were so peculiar, the semi-public mode of the inquiry so remarkable, and the language of the Home Office so unprecedented, that public opinion, as expressed in this House, has wrung from the right hon. Baronet a publication of the process by which his course was guided, and by which his language must be justified. Previous cases had been producing great doubt and dissatisfaction in the public mind with regard to the action of the Home Office in the matter of pardons, and now that we have its ways revealed to us in a blue book, I think there is good ground for saying that the doubt had not arisen too soon, and that the dissatisfaction was by no means without foundation. Even with these papers before me, I have the greatest difficulty in placing upon the right shoulders the primary responsibility for this inquiry. I say the primary responsibility, because of the ultimate responsibility of the Home Secretary there is no manner of question. [Sir GEORGE GRET: Hear, hear!] In the matter of pardon, the Crown and this House know no more of the Lord Advocate than they know of the Under Secretaries of State. One part of the inquiry—that before the Sheriff of Lanarkshire, which began on the 30th of September—was commenced for the information of the Lord Advocate, and on his instructions. But the Sheriff and the Provost of Glasgow had already memorialized the Home Secretary for a "general investigation," to which memorial no specific reply had been received at that date. It seems fair to infer, therefore, that the Lord Advocate ordered the inquiry before the Sheriff, and 1535 that the Home Secretary, acting through the Lord Advocate, ordered the further inquiry before Mr. Young. But our view of the relations between them is rather obscured than enlightened by their speeches in this House. The Home Secretary distinctly informed us that he requested the Lord Advocate to direct an inquiry, if he thought an inquiry expedient. The Lord Advocate, on his side, told us he was nothing more than the agent of his right hon. Friend—"the hand," as he expressed it, "of the Home Office in Scotland." It is the old story of the bandying of responsibility between the Lord Advocate and the public Departments, amounting to the repudiation of responsibility, and which is the perplexity and the bane of the public business of Scotland. It would be a great relief to the Scottish Members if they could ascertain what is the relative value of this head and this "hand"—whether the "hand" is really directed by the head, or whether that force which results in the final nod of the supreme head is really communicated by the humble and subordinate "hand." Taking all the information we have on this matter, I am led to the conclusion that the "hand" and not the head did the lion's share of this very unsatisfactory piece of work. Now, Sir, let us see what was actually done. After a trial of four days, the jury of fifteen bad unanimously found the prisoner guilty of murder and robbery. Her counsel then read a statement contradicting those previous declarations which purported to come from the prisoner, and asserting that the murder had been committed by Fleming, and that she, being present, had been bribed with plate and clothes to conceal the crime. The Judge heard this statement; he characterized it as a tissue of falsehoods, and he sentenced the convict to death. The jury heard the statement, and knowing that a strong effort would be made to get the convict pardoned, they agreed to hold a private meeting and decide as to whether they would join or stand aloof from this effort. Fourteen jurors attended this meeting. They considered that the statement could not be believed, and they determined to abide by their verdict. The case was referred to the Lord Justice Clerk. He also considered the statement, and he, too, adhered to the verdict and the sentence The right hon. Baronet was not satisfied He directed the Lord Advocate to commence an inquiry if he thought it expedient 1536 and an inquiry was accordingly set on foot. The convict was meanwhile told that she was reprieved, but no hope of pardon or commutation of sentence was held out unless the investigation confirmed the truth of her statement as to her share in the transaction. It is obvious that the first and main question which presented itself was, "Is this statement of the prisoner really and truly her statement. When, and how, and where, and by whom was it drawn up?" The only persons who could give any information to this question were the agents of the prisoner. They ought, therefore, to have been examined before any other witnesses, because upon their evidence the value of corroborative evidence wholly depended. The 30th of September, however, was spent in examining eleven other witnesses, whose evidence, if the statement turned out not to be authentic, was worthless. On the 1st of October the three agents of the prisoner, Messrs Wilson. Dixon, and Strachan, were examined. From their evidence it appears, setting aside points of some importance in which they contradicted each other, that the woman began to tell them her story as we have it in the statement on and after the 13th of August; that what she said was noted down by Mr. Dixon; that those original notes were the subject of long and anxious consultations between the agents and the counsel; that the prisoner desired that her statement might be used at the trial, but that her counsel thought it was too hazardous a course—that the notes, having been extended into the form of a statement, were destroyed—that this statement was from this time up to near the close of the trial considered and treated merely as a memorial for counsel, but that as the trial proceeded it was thought that it might be advisable to use it after the verdict, if the verdict were adverse, on behalf of the prisoner. On the third day of the trial, therefore, this statement, this memorial for counsel, or whatever else it might be called, was laid before the prisoner, and it was signed by her without having been read to her, because, says her agent, there was no time to do so. This, Sir, is the document which the Judge and jury were told was the statement of the convict, and upon the authority of which the Home Secretary saw fit to order an inquiry to be made. I shall not exhaust the patience of the House by examining in detail the extraordinary history of the creation of this document, but I will merely assert, 1537 without fear of contradiction, that the evidence of these agents, men in all the vigour of youth, displays far more remarkable lapses of memory than are to be found in the evidence given at the trial by old Mr. Fleming in his 87th year, Such as it was, whether the work of the woman or the work of her agents, the statement was accepted by the Home Secretary, and formed the basis of an inquiry; and this inquiry has, in the opinion of the right hon Baronet, confirmed the truth of that slate merit as to the convict's share in the trans action. Confirmation of any statement, I presume, means, not the corroboration of this or that trivial or non-essential portion of it, but the establishment, on clear evidence, of its central and principal part. Confirmation of this statement, I presume, means that reasonable proof has been given, not that the convict went out or came in at the time she said she did, not that she was in this street or that at the time she says she was, nor that this or that incidental circumstance of her story has received some fresh support, but that the principal and cardinal point of her story, the commission of the murder by Fleming, has been proved. If this has been proved, then the statement has been confirmed; if it has not been proved, the statement has not been confirmed. The right hon. Baronet will perhaps tell us how it has been proved, and how he defends his opinion that the statement has been confirmed. Observe, Sir, the right hon. Baronet had a perfect right to pardon the woman without any reason given, [Sir GEORGE GREY: It was not a pardon, but a commutation of sentence only.] The right hon. Baronet had a perfect right to commute the sentence passed upon the woman without any reason given, without a statement, and without an inquiry. But he has chosen to give a reason. He has chosen to say to the public, as clearly as words can express it, "I commute this sentence because this statement has been confirmed." He has also produced the evidence which he says contains the confirmation. I have now a right to ask him to point out to the House the passages which form that confirmation. Until I am further enlightened, I shall continue to believe, with the Judge, with the jury, with the Lord Justice Clerk, with the 2,300 memorialists who addressed the Prime Minister from Glasgow, and I believe the majority of the press, and of intelligent men, that the statement remains a tissue of wicked falsehoods—not the less false and not the less wicked 1538 because there are threads of fact running through the borders and fringes of its web of fiction. Now, a few words on the method of the inquiry. When I last addressed the House on this subject, I said it was rumoured—but I hope falsely rumoured—that the Lord Advocate, who had been responsible for the conviction, had undertaken the duty of inquiring whether it ought not to be set aside. The frank admission of my right hon. and learned Friend that he had undertaken, and had actually performed it, took me considerably by surprise. I am quite sure that he was doing no more than he believed to be right; but I am also sure he did a good deal more than some of the most eminent of his predecessors would have thought it right to have been. One vicious principle pervaded the whole proceeding, that of employing in the inquiry—avowedly a process by which the conviction was to be set aside wholly or in part—the very persons who were responsible for the conviction. The Procurator Fiscal of Lanarkshire, who, as part of his official duty, prepared and arranged the evidence against the prisoner, was employed to cross-examine her agents, with whom he had been contending through the whole case, as to their share in the production of her statement. I am far from saying a word against Mr. Gemmel's performance of this very painful duty, but it was a duty so delicate and so painful that it ought not to have been imposed upon any man except in the impossibility of getting any other competent person to perform it. That no such impossibility existed here is evident from the fact that the duty of conducting the inquiry was subsequently transferred to Mr. Young. Mr. Young, the Lord Advocate told us, was employed not entirely on account of his eminence at the bar, but because the Advocate Depute, who had conducted the prosecution, was out of the way. If the Lord Advocate could have found another person who had been previously connected with the case, and could have set him too to review his own proceedings, he would have preferred it. But I should like to hear, what I have not heard yet, why the inquiry at first intrusted to the Procurator Fiscal was taken out of his bands and transferred to another. The prisoner's agent, Mr. Wilson, commenced his evidence by making a deliberate attack on the impartiality of the Procurator Fiscal. He said—
Courting a full investigation, be protested against that investigation being conducted by the 1539 Procurator Fiscals, or either of those by whom the case against Mrs. MacLachlan had been got up, and of whose conduct in the whole matter he disapproved.The Sheriff interposed and the evidence at last was given, but still under protest against the employment of Mr. Gemmel. I want to know why this insult to Mr. Gemmel is thus flung on the table of Parliament without remark or explanation. Are we to gather therefrom that the protest was subsequently sustained, and that the inquiry was therefore taken out of Mr. Gemmel's hands and put into the hands of Mr. Young? I want also to know why—the inquiry having been previously conducted before the Sheriff and Procurator Fiscal, who had the power to examine on oath—Mr. Young was not armed with similar powers? I want to know who was employed in the inquiry under the gentleman already named—what Sheriffs and what Procurator Fiscals examined the witnesses at Dunoon, and Hamilton, and Alloa, and Edinburgh? I want to know why, at an inquiry in which the character, if not the life of Fleming, was so clearly at stake, he was not represented by agents; and upon what principle of justice a man is to be tried, either in Scotland or in England, as Fleming has been tried, for murder, in the dark and behind his back? Lastly, why, in an affair of this importance, were no written instructions given to any of the persons employed? Without pushing these questions farther, I would submit it to the consideration of the other Members of Her Majesty's Government and to the House, whether, if the Home Office is to institute at pleasure these arbitrary courts of appeal, it ought not at least to frame some general code for their guidance, and issue some definite instructions to the functionaries so employed. I now come to the most painful part of my case—the personal charge which I have to make against the right hon. Baronet of failing in proper consideration and respect fur the administration of justice in Scotland, and of doing injustice to an untried and, I believe, an innocent man. The disrespect shown in the one case, and the injustice committed in the other, are so bound up together that there is some difficulty in separating them. Of the two, taken together and considered as a whole, I beg the right hon. Baronet to believe that I impute to him no offence beyond a mistake. I am confident that be has intended no slight to those who dispense justice in Scotland, and that he has 1540 and can hare no animosity against Mr. Fleming. He, on the other hand, I am sure, will admit, that the mistakes of a Secretary of State, involving as they may involve great inconveniences to the public service, and inflicting, as this mistake has inflicted, great suffering on individuals, are not unworthy of the attention of the House. First, with regard to the disrespect shown to those who are charged with the administration of justice in Scotland. I must remind the House that this case caused the greatest interest in Scotland. Long before the trial came on, or anything accurate was known, two parties had been formed—those who believed in the guilt of the woman and the innocence of the old man, and those who believed the man guilty and the woman innocent. From the very outset the newspapers which are the woman's supporters indulged in the most violent language and the most scandalous imputations against those whose duty it was to bring her or any one else who appeared guilty to justice. Sheriff Strathearn, before whom it happened that she was first taken, and the Procurator Fiscal Gemmel, were accused of everything that was base and unworthy. They were, it was said, the intimate friends of the Flemings; they were bribed by the Flemings and their powerful friends; they were determined to get Fleming off, and they did get him off, sending this innocent woman to be tried in his place. When the trial came on, the Judge himself was assailed with similar abuse. Caricatures of the black Sheriff, the cruel Procurator Fiscal, and the iron-hearted Judge were freely circulated, representing them as receiving bags of money from the Flemings, and vowing in return that the prisoner should be hanged. Each day brought forth a fresh scandal and a fresh lie. These maligned officials, nevertheless, did their work honestly, calmly, and fearlessly, as it ought to be done. The case was submitted to the jury, and their unanimous verdict and the sentence were what we know. The verdict and the sentence were reviewed by the Lord Justice Clerk, and approved by him. Nevertheless the right hon. Baronet, as was his undoubted right, ordered a further inquiry. Now, what was his language in doing so? He said, "Tell the woman that her life will be spared only on condition that the investigation confirms her statement as to her share in the transaction." "Her share in the transaction!"—by these words the right hon. Baronet plainly 1541 evinced his belief that more than she had had a share in the transaction, in which the Judge and the jury believed her to be alone concerned—that, before the investigation had been begun, he had made up his mind against the verdict and the sentence. He night not know it, he might not intend it, but by the use of these words he placed himself at the head of the ribald press and the reviling mob. When the matter was last discussed in this House, the right hon. Baronet spoke with his usual fluent eloquence about the state of public feeling in Glasgow, and the inexpediency, in the face of that feeling and that interest, of carrying out the sentence. Did he say a single word in defence of his honest, faithful subordinates, who had been for months exposed to the most virulent calumnies? Not a word! He was occupied in merely defending himself—in reiterating his assertion that this famous statement had been confirmed, and that the woman, who had been found guilty of murder, was in truth only what be calls a particeps criminis. Sir, I think I am justified in saying that the right hon. Baronet, in his treatment of this ease, has not treated the learned and honourable persons concerned with due respect and consideration, and that he has not given them the support which they deserved at his hands. Now, as regards the injustice done by the right hon. Baronet to Mr. Fleming. My position is, that the right hon. Baronet had no right to stigmatize as he has stigmatized this untried man. He told the convict and the public that she was respited until the investigation and inquiry, about to take place, had confirmed the truth of her statement as to her share in the transaction, and that confirmation was made the one condition on which her life would he spared The inquiry ended; the convict and the public were informed, without further remark, that her life was spared. Was it not unreasonable to infer from the language of the one letter and the curtness of the other, that the condition had been fulfilled—that the truth of her statement as to her share in the transaction had been confirmed? Would any other inference have been equally plausible, or, rather, was that inference not absolutely inevitable? The silence of the right hon. Baronet, in the second letter, as to any modification of the condition laid down in the first, pledged his word as a Minister to the confirmation of the convict's statement. The confirmation of that statement implied the guilt of Flem- 1542 ing. The right hon. Baronet, therefore informed the public that Fleming was guilty. I have heard one excuse for the right hon. Baronet, and but one, which I dare say I shall hear again to night. It is said that this was a case in which it was impossible to spare the woman's life without throwing some shadow upon the man's character. You could not relieve the woman of any portion of the guilt without transferring or appearing to transfer that postion to the man. I admit that there was this difficulty; but I do not consider it a difficulty which it was not within the literary resources of the Home Office to meet and to overcome. But because the case presented this difficulty, because it required some skill and care so to write on the subject as to avoid casting some shadow upon Fleming, is that to be made an excuse for making the shadow as broad and as dark as possible? Assuming for a moment that it was the desire of the right hon. Baronet—a desire with which, of course, I do not charge him—to hold up Fleming to public odium as a murderer, in what better and more skilful and effectual manner could this have been done than by using the precise form of words which the right hon. Baronet did actually employ? The section of the Scotch press which so outraged decency and discredited its country by its coarse calumnies and foul accusations, might well take lessons at the Home Office in the art of dexterous and decorous insinuation of crime. Sir, I have called Mr. Fleming an untried man. In one Sense, the literal sense, this is true. He had never been placed at the bar. But in another and equally practical sense, it is not true, because the suspicions of guilt which attached to him had been most closely investigated. He had been in custody for eight or nine days, and was released only by the direct order of the late Solicitor General of Scotland, now Lord Barcaple, than whom a more able and learned man does not sit on the bench. At the trial a question arising as to the propriety of putting a particular interrogation, Mr. Clark, the prisoner's counsel, said—My Lord, one of my defences is that Mr. Fleming committed this murder, and I have therefore a right to lay before the jury the same evidence which would have been laid before them had Mr. Fleming stood at the bar.The Judge made no objection, and upon this understanding the trial proceeded. By this counsel, one of the ablest men at the 1543 Scotch Bar, in the full vigour of manhood, and all the force of a practised legal intellect, was this old man subjected to a severe cross-examination. I think, I may therefore say, that although Mr. Fleming is in one sense untried, he really stood a very severe trial, differing in little from the trial of the convict except in the fact that he had no counsel to defend him. Out of that trial he came, in the opinion of the jury and the Judge, unstained with guilt, the stigma of which was nevertheless cast upon him by the Secretary of State. Sir, I can quite believe that the right hon. Baronet has no idea of the extent of the harm he did, or of the suffering he inflicted. Men who had been disgusted by the calumnious violence of the newspapers, and who had read with pain how the old man had been hooted and hunted by the mob in the streets of Glasgow and Greenock, who believed with the jury and the Judge that he was innocent, even they, when these letters from the Home Office came out, were staggered in that opinion. They said to each other—"After all, there must be some grave evidence against Fleming. Sir George Grey is too good a man, too fair a man, to calumniate with the press or fling dirt with the mob. We thought Fleming was innocent—we now fear he is guilty." Sir, I reasoned in this very way myself; and I am sure the same thought passed through the minds of other men. I wavered in my faith in this old man's innocence, relying on the good faith, the sound judgment, the kindliness of the right hon. Baronet; and I believe others did the same. It was not until I saw that this cruel imputation was not followed by the action by which it ought to have been followed that I began to re-consider the matter, and to revert to my original opinion. I came to this House and stated this case of grievous wrong in such imperfect fashion as is in my power, and I said to the right hon. Baronet, "You are Secretary of State, and you had a right to accuse this man, and to bring him to trial, if you saw fit; but you had no right merely to accuse him, and to blast his character and that of his family, by writing such words as compelled the public to infer that you possessed proof that he was guilty of murder. Why, I said, have you not tried him? You say the law—or your interpretation of the law—prevents you from trying him for murder. Why have you not taken the course which is open to you, and placed him at the bar for perjury? 1544 If your stigma is well founded—if he has committed a murder from the penalty of which he is protected by a bad law—he has also committed perjury, from the penalties of which the law gives him no such protection. Why has be not been tried for perjury?" To this question the right hon. Baronet did not condescend, or did not find it expedient, to give any reply. I do not now repeat the question. These papers enable me to answer it for myself. I now tell the right hon. Baronet—with the knowledge that he will immediately reply to me—that one at least of the reasons why he did not try Fleming for perjury was, that he dared not. On evidence such as this no jury could have convicted, and the discredit of the trial would have fallen, not on the prisoner, but on those who placed him at the bar. Sir, the right hon. Baronet has had several opportunities on which he might have withdrawn this most unfounded, and I believe, at first, unintentional imputation. Messrs. Smith and Wright, in their courteous and sensible letters, twice appealed to him on the subject. I made a third appeal in this House. All these appeals were in vain. The right hon. Baronet prefers to adhere to his original blunder. He prefers to face the difficult task of proving the Home Office infallible, rather than to perform the easy, simple duty of recalling or explaining a few hasty words in a letter. So much for the wrong which, it appears to me, that the head of the Home Office has inflicted on Mr. Fleming and his family. One word more with respect to my right hon. and learned Friend the Lord Advocate, the "hand" of the Home Office in Scotland. It is due to my right hon. and learned Friend, whose reputation in this House and elsewhere is a matter of pride, and therefore of solicitude to his countrymen, to say, that he has distinctly refused, in all this unhappy business, to be the "hand" to strike this miserable blow at an unfortunate and persecuted old man. The right hon. Baronet tells us the convict's statement has been confirmed by the inquiry, or, in other words, that Fleming is guilty of murder. Speaking after him in this House, my right hon. and learned Friend had the courage and manliness to assert the directly contrary opinion. "The result of the inquiry," said my right hon. and learned Friend—and I marked the words well—"was not to criminate Fleming." In other words, the inquiry left Fleming precisely where he was left by the 1545 trial, and the woman's statement, as regards its cardinal and primary facts, was not confirmed. It only remains for me to say, in conclusion, that I did not move in this painful matter until I had ascertained that those who were better entitled and better qualified than I am to deal with it were not disposed to take it up. I have been prompted solely by a sense of public duty, and in no respect by private feeling; I have absolutely no acquaintance with any person concerned in the case, except the two right hon. Gentlemen opposite, whose proceedings I have been obliged to criticise; and that I am well aware how much my performance of what I believe to be a duty has needed, as it has certainly received, the kind indulgence of the House.
§ MR. DUNLOPsaid, he believed that the Home Secretary could not, under the circumstances of the case, have done anything but respite the woman MacLachlan. There was a feeling prevalent at the time, not on the part of the rabble merely, but on the part of those who had well thought over and considered the whole proceedings of the trial, and also among the mass of the people of Scotland, that if this woman had been executed while Mr. Fleming, against whom so much suspicion bad existed, was not even tried, a gross act of unfairness would have been done. To warrant the carrying-out of the capital sentence it was not enough that the verdict itself should have been justified, but it was necessary that the sympathies of men of right feeling should go along with it. The exception he took to the course which had been pursued in the case was, that he thought the man ought also to have been tried. There had been great mismanagement, and to show that he begged to be allowed briefly to advert to some of the particulars of the case. The House would remember that Fleming was living alone in the House with the murdered woman, and his account was—that be had gone home to dinner; that he afterwards went out to take a walk; that on his return be went down to the kitchen, where the woman, afterwards murdered, made tea for him; that he went upstairs to bed at half past nine o'clock, and was awoke by a loud scream, when he looked at his watch and found it was exactly four o'clock. Another person was awoke by a loud scream—Mr. Stewart, who lived next door to Fleming, He had gone to bed at eleven o'clock, and immediately fell asleep, and the scream 1546 which awoke him might, he said, have occurred at a quarter past eleven o'clock, but could not have been later than one o'clock. A sempstress going home about a quarter past eleven o'clock had occasion to pass Fleming's house, in front of which two separate parties were standing, listening, and one of whom she heard saying, "It came from that house where the light is,"—that is, Fleming's house They passed on, and her attention was then arrested by a moaning or wailing noise, tallying exactly with the scream heard by Mr. Stewart. Now, he ventured to think, if the frightful wounds found on the body were commenced at eleven o'clock, the murdered woman could hardly have emitted so loud a scream as to awake Fleming at four o'clock. A party coming home from a wedding, having to pass the scene of the murder at four o'clock in the morning, stopped opposite Fleming's house to hear the birds singing, and they heard no noise whatever in the house. From the beginning, therefore, there was reason to suspect that Fleming's statement had been a mere invention. Fleming went on to state, that going to sleep again, be awoke at six, and lay in bed till nine o'clock, wearying for his porridge, which was usually brought to him about eight o'clock; but it was clearly proved that he was up at half past seven, and had opened the street door to the milkman at twenty minutes to eight o'clock, He lay in bed, he said, till nine, when the murdered woman not coming with his porridge, he went down stairs, and found her door locked. He rapped, but received no answer, when he returned upstairs and opened the door for the first time to a woman who came for a spade. In his examination he concealed altogether two ringings at the bell—one by the milkman, with respect to which, in his cross-examination, he broke down; but he finally admitted that be bad got up before the milkman came, and opened the door to him. The other he did not let out at all; but it was a very peculiar fact that a girl had called who had been engaged by the murdered woman to "char," and Fleming risked her to come in and scrub part of the lobby, where marks had been in the floor, for which purpose he brought her water and a piece of flannel, Then with regard to the various modes of egress by which the murderer could have made his escape. The back door was locked inside. The front area, 6 feet 3 inches high, was covered by an iron grating. 1547 The window of the room where the woman was found had iron stanchions. Another window had also iron stanchions, and a wicket, which was kept bolted. By the area no person could escape without leaving marks. The Superintendent of Police was asked as to the state of the area, and there were no footmarks, or other indications of any attempt to escape. The door upstairs old Fleming took great care often enough to mention was not locked, but merely on the latch or sneck, as they termed it in Scotland. Even before he was asked the question, he volunteered a statement to that effect. Fleming appeared to be very anxious about that fact, because it was quite clear, that if that door had been fastened inside, either the murderer was still within the House or had been let out by him.
§ MR. BAILLIE COCHRANEsaid, he rose to order. He submitted that it was a piece of monstrous injustice in the hon. Gentleman conducting prosecution against Mr. Fleming.
§ MR. SPEAKERruled that the hon. Gentleman (Mr. Dunlop) was in order.
§ MR. DUNLOPsaid, he was rather conducting a prosecution against his right hon. Friend below him, because he said there were sufficient grounds, not only to warrant, but to require that old Fleming should be put at the bar with the woman. He would not, however, enter further into the details of the case, beyond observing that he thought his hon. Friend had taken a somewhat erroneous view of the nature of the effect to be given to the statement made by the woman. That statement was not, of course, to be looked upon as got up in the perfect form which would demand that implicit reliance should be placed upon it as a matter of testimony. He must, at the same time, observe that the carelessness with which its minute details were strung together, tended rather to add to than detract from the weight to be attached to it, inasmuch as he doubted whether the right hon. Baronet the Member for Herts (Sir E. Bulwer-Lytton), with all his ingenuity and skill, could narrate so minute a story without having a full opportunity of devising it, and seeing that the various particulars fitted accurately one with the other, unless he were giving a narrative of facts. But, be that as it might, he thought it utterly impossible that his right hon. Friend the Secretary for the Home Department could have acted otherwise than he had done—to advise 1548 that the capital sentence should not be carried into execution.
THE LORD ADVOCATEsaid, that however inconvenient it might be to discuss questions such as that under consideration in the House of Commons, he was not sorry that an opportunity had been afforded of explaining how the facts connected with the proceedings in the case really stood, and therefore he would not complain that his hon. Friend the Member for Perthshire had deemed it to be his duty to ask for information on the subject. In doing so he had made certain charges against those who took an active part in the proceedings to which it was desirable an answer should be given. Those charges, so far as he could gather them, were comprised under three heads—the first being that the law of Scotland was in a very imperfect and unsatisfactory state—as evidenced by the difference of opinion between himself and his hon. and learned Friend the Member for Bute—in regard to the power of trying persons who had been witnesses in a criminal case in a charge arising out of the same prosecution; the second, that while not disputing the right of his right hon. Friend the Secretary for the Home Department to institute the inquiry which had taken place, the inquiry was conducted in a very objectionable manner; the third, that the right hon. Gentleman had treated the learned Judge in the case with disrespect, and had inflicted a cruel injury on Mr. Fleming. The hon. Gentleman, however, although he made accusations under those three heads, did not complain of the commutation of the sentence in the case, or of the institution of the inquiry which led to it. What, then, became of the charge against his right hon. Friend of having reviewed the sentence of the Judge—a charge to which the hon. Gentleman opposite gave countenance and support—if it were admitted, as it had been that evening, that his right hon. Friend was right in not allowing the woman to be executed. He was glad to have such a confession at last, for it showed that in the main point involved the course pursued by the Government was beyond question. The mode in which the Royal prerogative of mercy was exercised was different from that in which justice was administered. The jury did their duty in the case, and the learned Judge his duty, and then the prisoner was in the hands of the Executive, and there was no power in either jury or Judge to tie up the hands of the Home Secretary as 1549 to the course which it was his duty to recommend should be pursued. A Petition was presented for mercy, and it was the duty of the Home Secretary to review the sentence before he recommended the exercise of the prerogative of the Crown. And was not, he would ask his hon. Friend, the exercise of the Royal prerogative of mercy in the case as constitutional a proceeding as the verdict of the jury or the sentence pronounced by the Judge? It was not the reviewing of a sentence, but the exercise of an important and independent function vested in the Crown. It was not, however, after the admission which had been made, necessary that be should enter further into that part of the question, and he should therefore proceed to deal with the first charge made by his hon. Friend. He said that the law of Scotland was extremely defective and not worthy of a civilized country, because a witness examined in a prosecution in a criminal case could not be afterwards tried on the same accusation. Indeed, he was informed that that was a point on which the greatest authorities differed from him, but, while he declined to reply to unseen antagonists, he should state the reasons for the opinion which he held on the matter, and the House would then he able to judge what foundation there was for that which had been made a ground of charge against the Government, but which was in reality aimed against the Law Officers of the Crown It was not such a technical matter as not to be open to those who would take the trouble to look into it. It had often been considered in the courts of Scotland and in the courts of England. In England an accomplice who was examined for the prosecution had only the hope of receiving a pardon, and might be tried afterwards in the ordinary way. In Scotland the law took this turn, that when a public prosecutor put an ac complice into the box, that person received a perfect immunity in reference to the charge as to which he gave evidence. That arose in this way. There was a disinclination to allow a witness to be examined who had an interest in the subject-matter of inquiry. The objection was constantly taken that an accomplice had an interest, because he could be tried, and at first that was got over by procuring a pardon. But gradually the law came into a better and far more liberal and philosophical state. The courts held, that if the public prosecutor chose to put a person in the witness-box, whether in point of fact any bargain was 1550 made or not, whether the witness turned out to be an accomplice or not, whether be was supposed to be an accomplice or not, the fact of putting him in the box and examining him gave him immunity from prosecution upon any charge arising out of the same transaction. It was all very well for the hon. and learned Member for Tiverton (Mr. Denman) to say that was an uncivilized state of the law; but if the hon. and learned Gentleman had paid a little more attention to the matter, he would have seen that there were two sides to the question. The law of England tended to prevent the escape of the guilty. The law of Scotland tended to prevent the conviction of the innocent upon tainted testimony; and, in his opinion, that was the truest and best view. It was far better that a person who had had a hand in a crime should escape, from being taken as a witness, than that in every case an accomplice should give his testimony with the certainty of being exposed to the chance of prosecution for the same crime, and therefore interested in securing by any means the conviction of the accused. It was better to procure pure testimony, even at the risk now and then of the guilty escaping punishment. Burnett was an authority in favour of that view. "It is a wise and humane indulgence," he said, "which, while it secures impunity for those who aid in the discovery of crime, insures pure and unconstrained testimony." "Our usage is better calculated than the usage of England to secure free and unbiassed testimony." flume wrote to the same effect. In 1794, in the trial of Watt and Downie for high treason, which, although it took place in Scotland, was conducted according to English forms under a commission of oyer and terminer, it was distinctly laid down that the accomplice could not he brought to trial for the same crime alter the prosecution bad made use of him as a witness. In 1807, on a trial for murder committed in the course of a military riot, a witness was objected to by counsel for the prisoner, on the ground that he was interested in convicting the prisoner, because he might he tried for the riot, and it was held, that if he gave evidence upon the subject-matter of inquiry, he could not be tried even by the military authorities. The decision in the case of Burke and Hare, by Lord Meadow-bank and Lord M'Kenzie, and the writings of Sir Archibald Alison upon the Criminal Law of Scotland, also laid down the same doctrine, in words which it was impossible 1551 to mistake. He held it to be clearly a better state of the law than that of England, and he had never known or read of a single instance in which justice had been defeated by its operation. He would remind his hon. Friend that the law to which he referred had been built up by the greatest lawyers whom Scotland ever saw, men who had given a character to that law anterior to the time of Romilly, when the English Criminal Law would not allow the services of counsel for the wretched prisoner trembling and shivering in the dock for his life.
He now came to the second point—that the inquiry had been conducted in a very objectionable manner. His hon. Friend said it might be right to inquire, but it was not right to inquire in this way. He had also been taken to task by the hon. Gentleman who had just sat down because at the trial he had not put old Fleming in the dock. There was no doubt a great deal of mystery about the case, and it was all very well to criticise after the event, but it was necessary at the time to decide and take a line. Persons might write violently in the newspapers, but every one who has really to decide and to act in criminal prosecutions must feel a deep solicitude and sense of responsibility. The case was originally considered very maturely by a very competent authority, the late Solicitor General. He himself had nothing to do with getting up the materials, being at the time in London. The case stood thus. Whatever remarkable features there might be in the evidence of Fleming, it was perfectly clear that the women MacLachlan was cognizant of the events of that night; and as her statement was false, and she bad made no statement in criminating anybody else, it was impossible to come to any other conclusion than that she was guilty of the crime. The theory afterwards suggested had not then been suggested, and the sole case which the Law Officers had to consider was that MacLachlan was guilty of the murder; and that the statement she made was true There could be no doubt, however, that the statement she had made was utterly false Therefore, his learned Friend had declined to put Fleming at the bar. As far as he himself was concerned, he had done what any one else who had held his office would have done; he had done just what he felt it his duty to do, on views not suddenly taken up, but on views which had been matured by considerable experience of his office. He certainly had never known a wore unjust attack than that which had 1552 been made on his right hon. Friend, who was charged with a most anxious and responsible duty. He had read MacLachlan's statement, for the first time, in the Scotch newspapers. At that time his right hon. Friend had received a petition for mercy (along with numberless applications), which he forwarded in the usual course to the Lord Justice Clerk. He had read that statement, not without interest, and not without considerable perplexity; in fact, he was greatly moved by it. Not that it necessarily impressed on his mind a sense of the woman's innocence, but the theory which it suggested had never been before the jury nor the public prosecutor. It was a theory quite consistent with the whole course of the evidence, which, though it might be utterly false, had never before been considered, and which pointed out the means by which it might be corroborated by naming various persons to whom application might be made. Besides that, it contained a direct charge against old Fleming, stating that the woman was an eye witness of his guilt. His hon. Friend said, that the Lord Advocate, as public prosecutor, had nothing to do with petitions of mercy. That was true only in a sense. The public prosecutor's duty ended with a conviction. But would the hon. Gentleman say, that if the public prosecutor had reason to think that he had prosecuted an unhappy prisoner to the death on evidence which he began to suspect was not altogether satisfactory, it was his duty to sit still and let the law take its course? Was there a man of ordinary humanity, even if he were a private prosecutor, who could rest on his pillow if he had reason to think that the verdict which condemned a fellow-creature to the gallows was founded on a mistake? It was impossible to maintain that for a moment. The office of public prosecutor was of the nature of a Minister of Justice—at least, it was to see justice done—and he would have been liable to the gravest censure if, having reason to think that the verdict was not sufficiently supported by the evidence, he had kept that opinion to himself, and had allowed the law to take its course. He believed all his predecessors would have taken the same course which he took. The new evidence which was brought forward was not before the public prosecutor when the case was prepared, and he was entitled to ask how it was that it was not before him. There was a charge made, too, against another man, which might have 1553 been made the subject of a serious proceeding, and be was entitled to inquire into that. The hon. Gentleman was under a serious misapprehension when he said that he had intruded himself into the matter unasked, having no function to do so. Where petitions of mercy depended on facts which were before the Judge and jury, and where there was no question of law, it never had been the custom to take the opinion of the Lord Advocate officially, and still less for him to volunteer it. But, in the confidential relations which ought to prevail between the Home Secretary and the Lord Advocate, the Home Secretary might ask the Lord Advocate for his opinion; and when there was to be a new inquiry, he maintained that not only was it the right and the duty of the Home Secretary to ask, and for the Lord Advocate to give his assistance, but there was no other constitutional and regular mode of proceeding. After reading the statement, although he was greatly troubled by the state of matters, he did nothing and he heard nothing; but a week after, and within less than a fortnight of the time when the law was to take its course—on the 27th of September—he received a letter from his right hon. Friend the Home Secretary, asking him what means of information there were, and what was his view of the course to be pursued. Would the hon. Gentleman opposite say that it was his duty to refuse to give the Home Secretary any advice or assistance? He did what he conceived to be his duty in the matter, and what he should do again, and what he believed no one in his position could refuse to do without injury to the public service. His opinion was, that if the statement turned out to have been made, as was said to be the case, early in the proceedings and long before the trial, if it turned out that it was corroborated by the witness named in it, his right hon. Friend could not avoid an inquiry into the facts. He thought, also, that if it turned out that the statement was ex post facto or if the witnesses contradicted each other, clearly and explicitly, it was a serious question whether any action should be taken upon it. The course he took was this, and it would explain, perhaps, all that his hon. Friend found so mysterious in the documents. He happened to be in Glasgow on the 29th of September, and he delayed answering his right hon. Friend until he had seen the Procurator Fiscal, to learn something from him as to the nature 1554 of this statement. He saw the Procurator Fiscal, who informed him the excitement was so great that a communication had been sent to the Home Secretary asking him to order an inquiry. Having arrived at the conclusion, that if an execution was to take place, it ought to take place on the day named, because a respite would be calculated to increase the excitement, he at once gave instructions to the Procurator Fiscal to inquire into the origin of the statement which had been forwarded from the prisoner, and to obtain possession of any information he could procure with reference to that statement. On his return home he found another letter from his right hon. Friend the Home Secretary, which entirely warranted him in the step he had taken. The Procurator Fiscal made his examination as speedily as possible. His hon. Friend did not understand why the evidence of the persons examined by the Procurator Fiscal should have been taken at different places, but all that was in regular order. On the 3rd of October he communicated to his right hon. Friend the Home Secretary the details forwarded to him by the Procurator Fiscal; and on the 4th his right hon Friend announced that an inquiry was to be held, and respited the prisoner. His hon. Friend said, that because the Home Secretary had stated that unless the prisoner's statement was corroborated she was not to expect mercy, his right hon. Friend had entered into a compact to execute the woman if her statement was not proven. That was not the correct interpretation of his right hon Friend's words, which only meant that the prisoner was not to have her hopes falsely raised. On the same day as that on which the respite was sent to Scotland, his right hon. Friend requested him to exhaust the inquiry into the statement made by the prisoner. He quite agreed with his hon. Friend that the language used by some of the newspapers against the Procurator Fiscal, and the Sheriff Substitute, was highly discreditable to that portion of the press of Scotland which had indulged in it. The imputations of those newspapers were roost calumnious, and utterly devoid of the least foundation. His hon. Friend complained that on a former occasion he omitted to make this statement He regretted the omission quite as much as his hon. Friend. He had intended to state his opinion with reference to those attacks on two public officers; hut, perhaps because he was anxious to reply to an attack which his hon. Friend had just made on himself, be inadvertently omitted 1555 to do so. It was but due to the Procurator Fiscal that he should express his opinion that a more honest and faithful officer did not serve the Crown. His zeal and ability were not greater than his integrity. With regard to the Sheriff Substitute, it was not for him to speak of that officer in the same terms; but this he might say, that the Sheriff Substitute could well afford to allow those attacks to pass with the silent contempt which he had hitherto shown them. He believed they were totally destitute of foundation. His hon. Friend seemed to think it was an imputation on the Procurator Fiscal to send any one else to make the inquiry; but it was not so. His hon. and learned Friend the Member for Bute would bear him out that on such occasions inquiries were made by the officers of the Lord Advocate. The Advocate Depute was enjoying his holidays at the time; and wishing to have recourse to the ablest assistance he could procure in Scotland, he asked his hon. and learned Friend Mr. Young, who, beyond all doubt was at the head of his profession, to undertake the inquiry. His hon. Friend the Member for Perthshire was right in saying that he had given Mr. Young no instructions. He had simply placed the documents in his hands, and asked him to go to Glasgow and endeavour to come at the bottom of the business. He admitted that in the papers the inquiry did not seem to have been a very methodical one; but it was quite as much so as were inquiries of a similar character carried on in England, and never did any inquiry take place after a verdict which was more cautiously and anxiously made. It was said that old Fleming ought to have had permission to be present at the inquiry; but he must remind those who took that view of the matter that the question was one between the prisoner condemned to death and the Royal prerogative. That being so, could it for a moment have been permitted to a third party to come in and say he had an interest in the execution of the prisoner, and therefore ought to be allowed to step in between her and the Royal prerogative? It was quite true that there was an inquiry into the conduct of old Fleming; but still the question was one between the woman condemned to death and the Royal prerogative. It might have been a hardship on old Fleming that he was not allowed to be present at the inquiry, as it was a great hardship on him to have been placed in the witness-box without the assistance of counsel; but in both cases 1556 the hardship on the individual was necessary for the ends of justice. He had now dealt with the second part of his hon. Friend's accusation. There were those who objected that this investigation had not assumed the complexion of a judicial inquiry. Of course, it did not. It was not a judicial inquiry, but an executive inquiry to inform the mind of his right hon. Friend.
In the third place his hon. Friend complained that a discourtesy had been offered to the Judges, and an injustice done to old Fleming. He was sorry that his hon. Friend should entertain the idea that any discourtesy had been offered to the Judges. Having said so much with regard to the Procurator Fiscal, he might say that the attacks upon the Judges were of the grossest and most improper description. Himself and the Solicitor General had considered whether they should not be made the subjects of legal proceedings, but they had thought that in this free country the public contempt which had attended these attacks was a better protection for the reputation of the Judge than any more formal proceeding. He hoped that that would satisfy his hon. Friend. There was not upon the bench in any part of the United Kingdom a man of greater ability or higher honour than Lord Deas. But the abuse was not all on one side. It was true that after the conviction of Mrs. MacLachlan a storm broke out and raged with a fury which was only to be accounted for by the fact that this became to a certain extent a class question, the working classes being in favour of Mrs. MacLachlan and the higher classes in favour of Fleming; but, from the moment that the sentence was commuted, the storm, which had blown with such fury in one direction, veered right round and blew just as furiously in another. The heroine of yesterday became the murderess of to-day, and the scapegoat the martyr. The gentlemen who had complained so much and so justly of the scandalous spectacle of a public meeting being called to impugn the verdict of a jury and the sentence of a Judge saw nothing unusual and nothing improper in signing a round-robin in the Glasgow Exchange to the Prime Minister, complaining of the equally independent conduct of the Secretary of State in advising the Crown as to the exercise of the prerogative of mercy, and to his astonishment had actually mentioned that circumstance with approbation. He would not enter into the grounds upon which the sentence was commuted. He 1557 need only say that his right hon. friend in one of his communications explained that that step was not taken because it had been found that old Fleming was guilty of the murder, but because all the evidence was not before the jury. His right hon. Friend did not say that the prisoner was innocent, or that old Fleming was guilty; he simply said that in the doubt and mystery which attended the case it was better not to break into the house of life, but to commute the sentence to the next highest punishment, and leave it to time to unravel a mystery which all his care and patience had not enabled him to unveil.
§ SIR GEORGE GREYBefore this discussion closes, I wish to say a few words. I have already stated the general grounds on which I have acted in the case when the hon. Member for Perth moved for papers a short time since; and my learned Friend has so fully gone into the details, that I will not travel over the ground again. I do not complain of the hon. Gentleman the Member for Perth having brought this subject forward. On the contrary, I am glad that he has done so, and I think he exercised a wise discretion in abstaining from inviting the attention of the House to minute details of evidence. My hon. Friend having said that he had some difficulty in finding out with whom the primary responsibility rested, I wish to state that in all these cases both the primary and the ultimate responsibility rests with the Secretary of State. My right hon. and learned Friend did not act in the matter until I had expressed to him my desire that he should do so; and I think that his statement must have convinced the House that he conducted the inquiry in the manner which was most calculated to effect the object we had in view. The hon. Gentleman complained that when I addressed the House on a former occasion I defended myself, but said nothing in defence of the learned Judge who conducted the trial; that, in fact, I had exposed the Judge and jury to the imputation that they had misconducted the trial The hon. Gentleman has overlooked the fact that I then stated that upon the evidence which was before the jury I did not think that any other verdict could have been come to; and this is the first time that I have ever heard it even insinuated that the course which I took was held by the Lord Justice Clerk to imply the slightest disrespect to men for whom I entertain the highest respect. Of Lord Deas I have no personal knowledge, but I have the 1558 greatest respect for his learning and character, and I should be deeply grieved that any step which I might take should be thought to imply any disrespect to him. With regard to the Lord Justice Clerk, with whom I have a slight acquaintance, I may state that when I had formed my decision, anxious that he should understand the grounds upon which I had acted, I wrote to him a letter, marked "private," in which I stated those grounds, and expressly disclaimed any disrespect either to him or Lord Deas. I was gratified by receiving from him a most courteous acknowledgment of my letter, with a request to be allowed to show it to Lord Deas, to which I immediately gave my consent, having from the first intended that it should be shown to that learned Lord. I will not detain the House by entering into an explanation of the principles upon which the Secretary of State acts in these matters, except to say that he has in all cases the valuable assistance of the permanent Under Secretary, whose legal knowledge and intimate acquaintance with the criminal law is well known, and, in ninety-nine cases out of a hundred, of the opinion of the Judge. I trust that the explanation which has been given by my right hon. and learned Friend will remove any misapprehension which has existed with regard to the course taken in this instance, and I am very glad that he has had the opportunity of making that statement.
MR. SERJEANT PIGOTTsaid, that nothing could be more satisfactory than the explanation of the learned Lord Advocate; but the question as to the powers and duties of the Secretary of State in regard to the commutation of sentences was one of great importance Nothing could be more anomalous and unsatisfactory than, that where a jury had tried a question of guilt or innocence, the matter should go before another and secret tribunal, where, upon a new inquiry, the question of guilt should again be determined. If capital punishment were to be continued, he thought it worthy of consideration whether there should not he an appeal; and if there were a ground of appeal and a question were to be tried again, whether it should not he in public and by a new jury. He believed the Secretary of State would soon be of this opinion rather than continue to be subject to such imputations as had been cast upon him that evening. The question was one which sooner or later must occupy the attention of the House.
§ MR. BLACKBURNsaid, that the substance of the Lord Advocate's speech seemed to be that it was a question of mercy to the guilty person, and that there was no intention on the part of the Government to throw a suspicion on anybody else. He regretted that the right hon. Gentleman the Home Secretary had not also stated as much, because it had been thought that he had cast an imputation on old Mr. Fleming. It would have been satisfactory, therefore, to find that now the Home Secretary agreed, with the Lord Advocate, and that they did not believe one tittle of MacLachlan's statement. Having read through the evidence which had been published, he confessed that he could hot find a syllable in it which confirmed that statement.
§ MR. MUREsaid, fie felt that the question before them was a very delicate one for the House to discuss, for it was one affecting the prerogative of the Crown, and perhaps the most important prerogative—namely, that of mercy. Therefore, upon the conclusion arrived at by the right hon. Gentleman the Home Secretary, and arrived at upon a careful and an ample consideration of all the facts, he did not intend to offer a single observation. After the explanation which had been given by his right hon. and learned Friend the Lord Advocate, he was happy to say that there did riot appear to be much difference between them. But he still disputed the broad propostion which appeared to have been laid down by the right hon. Gentleman, that when a person had once been examined as a witness upon a criminal trial in Scotland, that person could not be tried upon the charge with reference to which he had given evidence, even if it turned out that he was actually the person who committed the crime. He knew of no decided case in which the law as thus laid down by the Lord Advocate was set forth, nor did he believe that any decision could be found to establish such a proposition, unless at the time the witness was put into the box, being a suspected person, there was some understanding, expressed or implied, on the part of the prosecution, that he was to make a full disclosure of all that he knew respecting the crime in question. The authorities cited by the Lord Advocate Seem to refer to cases of that kind, in which the person was under suspicion at the time of his examination, and therefore gave evidence under peculiar circumstances. Now, he did not know whether anything passed between the Law Officers and Mr. 1560 Fleming which would bring that person within such a category, and prevent his being tried for the crime. But in all that took place of which the public were aware Mr. Fleming appeared to be treated as an innocent man, not lying under any suspicion, and he did not think any authority could be found in the Scotch law for saying that a person who had given evidence under such circumstances could not by possibility be tried. Suppose, for instance, that a man living next door to the house in which a murder took place produced at the trial a plan of the house and approaches, and gave evidence upon that point only. Would it be contended that, according to the law of Scotland, if it were afterwards found that he was concerned in the murder, he could not be put on his trial because he had previously been a witness in the case? Down to the date of the verdict he did not see what other course was open to his right hon. Friend than the one which he had taken; but it would, perhaps, have been more expedient if the subsequent investigations had not been left in the hands of the Lord Advocate, but had been conducted directly from the Home Office.
THE LORD ADVOCATEobserved, that he had been misunderstood as saying that a meeting had taken place at the Glasgow Exchange, whereas he meant to say that a petition had been signed there.