§ Mr. Abercromby,in rising to submit his promised motion, said, he could assure the House, that whenever he rose to address them on any subject, he felt it necessary to solicit their indulgence; but on the present occasion he felt it particularly necessary to claim it; seeing that the subject to which he wished to call their attention related exclusively to the people of Scotland. It was a grievance affection them alone; but he trusted that on a great public question; the right of the people of every portion of the empire to a redress of grievances would be fully recognized. If he should be able to show, that the learned lord advocate, and his colleagues in Scotland, had connected themselves with the Press of that country, in a way which was incompatible with the duties of their situations—if he should make it appear that a system had been adopted in that country to traduce through the medium of the press, the public and private character of individuals, by means which every man of feeling must detest, and in a manner which no man who was alive to a sense of honour or character could bear—if he could show that this had been countenanced and encouraged by the learned lord and his colleagues—if he could prove that he had abused his high authority, that the forms of the law had been perverted, and perverted from bad motives—if he could prove these facts to the satisfaction of the House, be did expect that they would not allow evils of such a nature to be without a remedy—even though they should exclusively apply to Scotland. In the course of his speech, he would not state any thing which he did not firmly believe to be a fact. He had a narrative of plain facts to support the conclusions to which he should come. With respect to the time of bringing the motion forward, he had given notice of it before the holidays, but had put it off from the 20th until after a trial, which he should assert was most improperly delayed from time to time. The trial was the expected one of William Murray 1325 Borthwick, in which he felt that interest, that he wished to defer his motion until it was concluded; because he naturally expected that it would throw light upon the subject to which his motion referred. The trial was fixed for the 17th instant, but it did not take place. And now that all chance of that was over, he took the earliest day for submitting his statement to the House. He should comprise his remarks under these heads: first, the powers of the lord advocate; next, be would show how that learned lord and his colleagues had misconducted themselves by their connexion with the public press in Scotland. He would then proceed to the case of Mr. Borthwick, which he should prove to be one of unparalleled hardship. After having submitted his statement, he thought that, for the credit of the learned lord himself, the facts should be fairly investigated by a committee; and after that committee should have given its report, then he would call upon the House for a definitive opinion upon the case.
First, with respect to the powers of the lord advocate. For the lord advocate had been claimed all the powers which had long been exercised by the privy council of Scotland. Before the union, the lord justice clerk, the lord chamberlain, and a few other official personages, constituted the executive power of Scotland, and what remained of their power was claimed to belong to the office of lord advocate. That these powers were great was admitted; and, in 1804, they had been boldly claimed by the then lord advocate. Neither he nor any one else knew their extent; and this rendered them the more dangerous; because nothing could be more dangerous than the existence of a power which was not defined. He did not mean to say that the learned lord would exercise all the powers which had once been claimed by the privy council—one of which was, that their authority superseded that of every court of criminal judicature in the kingdom, and that they might bring all parties be, fore themselves for trial. This was a power which he was satisfied the learned lord would not attempt to exercise if he could. But from the existence of this power, which was claimed and exercised by the privy council, one must infer that there were many minor powers claimed, which were not less oppressive in their nature. If the power of the lord, advo- 1326 cate was to be limited only by that which the privy council had exercised, there was no act of injustice, violence, and outrage, for which it might not be cited as authority; but, without inquiring whether it extended so far, he would come to what were the powers which it was admitted did belong to the learned, lord. He was officially the sole public prosecutor in Scotland. It was true that a private individual might institute a prosecution by consent and concurrence of the lord advocate; but then there were so many obstacles in this way of proceeding, as to throw the whole power of prosecution into the hands of the lord advocate himself. It was also to be recollected, that in his official proceedings the lord advocate was not controlled by a grand jury. He could at all time proceed on his own authority. There were, it was true, some restrictions to his authority with respect to the bringing parties accused to trial, by an act passed in the year 1701. Now what were these? By that act a person accused might, if he pleased, issue a precept to the lord advocate to bring him to trial within 60 days; but the lord advocate might come in on the 59th day, and then "desert the diet—pro loco et tempore," and this would have the effect of postponing the trial for 40 days longer. At the end of that time, he might repeat the same process, and thus defer the trial for 40 days longer; So that he might thus arrest any subject in Scotland, and keep him in prison for 140 days. At the end of that time of course he must be acquitted; as it was not likely that the trial would be delayed so long if there was any chance of a conviction at an earlier period. But, where was to be his remedy or redress? Then, with respect to public prosecutions, the practice in Scotland was, that when an, agent for the Crown conducted them, the expenses were all paid by him; but in the case of a private individual carrying on a prosecution, he had to pay all the costs if he did not succeed; and in many cases he was not allowed, to proceed until he gave security for the payment of all costs in case of failure in the case. He might also, if the defendant chose, he called upon to take an oath before trial, that he was not actuated by hatred or malice, and that he believed all the evidence on which his case was to rest was true. In addition to this, the prosecutor was bound to be present in court during 1327 the whole of the trial. No private individual could prosecute, unless he could prove some personal injury. Even in case of murder, he was bound first to prove his propinquity to the deceased, before he could prosecute; and even where an indictment was to be preferred for a public nuisance, it must be by the procurator fiscal, who was, as it were, the lord advocate of his district. The consequence was, that very few private prosecutions were carried on in Scotland, and nearly the whole were thus thrown into the power of the lord advocate. Now, this immense power was exercised by the lord advocate, the solicitor-general of Scotland, and officers who were called advocates depute. These were appointed by the lord advocate. There were generally two or three appointed for a circuit; but the learned lord might multiply himself as many times as he pleased, and appoint an indefinite number in the country. There were some other subordinate officers of his appointment, but he would only call the attention of the House to those he had named.
Now he would ask, whether the possession of so much power ought not to be looked upon with caution—whether, in proportion as it was great, its exercise should not be guarded against partiality and abuse? It was essential, that the man who held such authority in a country, should exercise it in a manner so as to be free from all suspicion, and should take care that he did not so mingle himself up with any transaction, as to become a party to that which might come before him in his judicial character. He did not charge the noble lord with any crime of omission; he charged him with crimes of commission. The learned lord had at his disposal considerable patronage; he had at his command large sums of money; he had also in his power all the sanction of office; and, sorry was he to say, that all these advantages the learned lord had given away, in order to promote a system of gross libel and atrocious calumny upon private individuals. Now, the House would feel that this was an important consideration, when he informed it that the learned lord, in addition to all his powers as public prosecutor, was in Scotland a co-existent secretary of state for the home department, and was in constant correspondence with the secretary of state in England. Every body would therefore see, how much those might gain by his recommendations, who 1328 had the good fortune to be in constant communication with him. In. every country the bar attracted to itself much of the talent and industry of the community. This was particularly the case in Scotland. As there was no parliament in that country, the bar was the arena which those whose talents had been improved by education selected for the display of their mental powers and qualifications. The number of persons practising at the bar in Scotland varied from 150 to 200; and upon these individuals the learned lord had at least 80 places to bestow. Now, it was evident, that this patronage would give the lord advocate great influence; and if he employed it properly, it might do much for men of talent and knowledge, and encourage them in their exertions to improve and benefit society; but if he gave it an improper direction, he was inflicting a heavy curse upon his country. Indeed, if he turned it to supporting in the press a system of detraction and calumny, there was no greater misfortune that he could heap upon Scotland, or heavier reproach that he could fix upon himself.
He now came to the facts, to which he particularly wished to call the attention of the House. In the year 1820, there was published at Hamilton, a paper called the Clydesdale Journal, which was afterwards transferred to Glasgow, and published under the name of the Glasgow Sentinel. This paper was at that time nearly destitute of circulation; but as it was thought expedient by same supporters of administration, not to allow it to die away, great exertions were used to create for it an additional sale. A paper was therefore privately circulated in the neighbourhood of Glasgow, recommending it to the support of the friends of government on account of the principles which it professed to maintain. The learned lord had put his signature, with that of several other gentlemen, to the recommendation in question; and in order that the House might be fully aware of the nature of it, he would take the liberty of reading it to them. It was as follows:—"Considering the present state of the country, and of this country in particular, in consequence of the great industry used in disseminating publications which have a tendency to unhinge the principles of all classes, and to render the middling and lower classes discontented and unhappy, we are desirous of encouraging a periodical publication 1329 which may counteract their baneful effects; and, from the experience already had of the Clydesdale Journal, we recommend it to the patronage of such gentlemen as have not contributed to, and may not be disposed to aid, such an undertaking." Now, as the lord advocate had put his signature to this document, the next consideration for the House was, in what spirit and temper this Journal had been conducted previous to the time at which it received the approbation and recommendation of the learned lord? He had seen many of the numbers of this journal entire, and also copious extracts from others, all published previous to November, 1820, on which day the learned lord signed that recommendation; and he would say, that there were libels in them against individuals as atrocious as could well be imagined. The most base, traitorous, and disloyal motives were attributed to gentlemen in that House who generally opposed the conduct of administration. He could also state a case in which the private conduct of a most respectable gentleman near Hamilton had been most unjustly arraigned, and in which motives had been attributed to him, which, had he entertained, would have rendered him incapable of admission into respectable society. He would not ask the House to believe these circumstances on his evidence. He would give them the testimony of a gentleman, who had himself signed the letter of recommendation, who was a person of respectability residing in Hamilton, and who had received a recent mark of favour from his majesty, which he was said to value most highly. This gentleman, in a letter which he had occasion to write respecting this Journal, made use of the following expressions—"You know that I never imagined that 275l. would be sufficient to set a newspaper a-going. Whatever merit there may be in the loyal principles held forth, in the Clydesdale Journal, it has been greatly injured by the personalities it has directed against the people in Opposition. These can do it no good, and have greatly injured it in the eyes of respectable persons. If the paper is continued, I trust that all such personalities will be avoided in future, and that many other improvements will be also made." The letter was dated the 13th October 1820, one month before the learned lord had affixed his signature to the recommendation of this very journal. Such was the character given of this jour- 1330 nal just before the learned lord took it under his especial patronage. How it had been conducted since, was proved sufficiently by the recent trial of Mr. Stuart, the death of sir A. Boswell, and the affliction of his widow and children. It was for the learned lord to show that after he had signed that document, he had withdrawn his confidence and support from this journal on account of the disapprobation which he felt at the mode in which it had been conducted. But the next point for the House to consider was, how the learned lord had signed this document? Was it done openly and without any concealment or mystery? No. A copy of this recommendation, with the signatures attached to it, was enclosed in a letter and sent round to those persons who supported the present system of administration, with so strong an injunction of secrecy, that they were desired to return the copy, after they had read it, to the person by whom it was sent. He understood that 200 copies of it had been circulated in this manner, and that only two out of all that number had not been returned as desired by the writer. There was another circumstance connected with the Clydesdale Journal, which it was proper that the House should know. The learned lord must have known that Mr. Aiton, the sheriff-substitute for Lanark, residing at Hamilton, was the principal writer of the journal in question. Now that gentleman, from his official capacity, was armed with great powers; he was especially charged with the conservation of the peace; he held a judicial situation, and thus might have been called to decide upon actions for damages instituted for libels which he himself had written as editor. Did the learned lord know of this fact, or did he not? [The lord advocate said that he did not.] It was a notorious fact, that Mr. Aiton had avowed himself the author of most of the libels that appeared in that paper. He had begun by libelling the duke of Hamilton—he then libelled his noble friend the member for the county—he then attacked the provost of Hamilton, because he was a friend of the Hamilton family, and he concluded by persecuting every person who was in any way dependent on or connected with it. His conscientious belief was, that the learned lord did know the circumstance but even if he did not, be (Mr. A.) could prove that Aiton knew that this letter of recommendation had been signed by the 1331 learned lord; and this being the case, what an incitement was it to Aiton, to go on writing libel after libel against all those who differed from his patrons in political opinion? He had not, however, yet done with Mr. Aiton. He would appeal to the secretary of state for the home department, whether there had not been lately introduced into parliament, a bill compelling the sheriff of Lanark to reside personally within his jurisdiction. To that bill he had, from a conscientious motive, given his assent. He had scarcely done so, when he was told by a friend—"You do not know what you have done; your principle may be right, but depend upon it, a person will b e immediately recommended by the lord advocate to fill that office." The fact turned out as his friend had stated. A new sheriff of Lanark was appointed, who had as before two sheriffs-substitute; immediately after his appointment, the sheriff-substitute, who resided at Glasgow, was removed from his post. He did not mean to say that the removal of this officer was not right, but he might be permitted to ask whether Mr. Aiton had been also removed? No such thing: he was still sheriff-substitute residing at Hamilton, though he had avowed himself the author of so many gross and scandalous libels. He must say, that there was nothing to excuse the learned lord's conduct, in not removing that individual from his present post; and from holding him up to the public, as a person unworthy to discharge any public, much more any judicial situation. To keep him in his situation was not only to encourage him to proceed in the course of slander and calumny which he had already adopted, but to induce others to start as competitors in the same evil race.
These were the main facts which he had to detail to the House, with regard to the Clydesdale Journal. He now came to the case of a paper somewhat better known—he meant the Beacon. In January, 1821, a resolution was taken by the learned lord and some of his friends to establish a paper in Edinburgh, to be called the Beacon. The first step which they took was to procure a large number of subscribers to it. By the constancy of their exertions, they procured a list of 800 subscribers, which was a greater number then had ever been know in the case of a newspaper of established in Scotland. This number of subscribers could only have been got together 1332 by the active influence of the learned lord. The first thing the subscribers did, after they had found an editor, was to persuade sir W. Forbes and Co. to open a banking account with him. Sir W. Forbes, for some reason or other, thought it right that the amount of this banking account should be guaranteed to him; and accordingly it was so by a number of gentlemen, whose names he held in his hand. He should confine himself to reading the names of those who filled judicial situations, from a summons of damages brought against them by Mr. Gibson, whom the Beacon had most foully traduced and libelled. Amongst them were the names of sir W. Rae, lord Advocate; James Wedderburne, solicitor-general; John Hay Forbes, sheriff-depute, Perth; John Hope, advocate-depute; sir Walter Scott, Clerk to the Court of Session, and sheriff-depute for Selkirk;—Arbuthnot, Lord Provost of Edinburgh; and of W. Home Drummond, M. P. for Stirling, and also Advocate-depute.—After commenting on the impropriety of these persons combining to support a paper, which, in every publication, teemed with the most gross and offensive libels, and stating that it was aggravated by the circumstance of their all holding judicial appointments, he proceeded to read to the House the conditions of the Beacon bond, and contended that it was not an ordinary bond, but a bond of credit, which must necessarily remain in existence so long as there was an account kept with sir W. Forbes and the editor of the Beacon. He would admit that the subscribers to that bond had signed it in the expectation that they should never be called on to pay a farthing upon it; and likewise that they did not wish to participate in the profits of the Beacon, though they had rendered themselves responsible for its losses. But admitting this, he must contend, that whether they intended it or no, they had made themselves the proprietors of the paper, and were therefore responsible for every thing it contained. Now, the learned lord having done thus much to set up the Beacon, and an editor having been obtained to conduct it the next thing to consider was, how had the paper been conducted? He would tell them and that not upon his own authority, but on the authority of one of the original subscribers to the bond. Very soon after 1333 its publication, this gentleman, finding that it dealt in the most unjustifiable personalities, sent a letter to the editor remonstrating against them, and advising that a fairer mode of political controversy should be adopted. His advice being disregarded by the editor, the gentleman withdrew his name as a subscriber, and never allowed it to come again into his mansion. He might, perhaps, be asked, why this gentleman, who disapproved so much of the Beacon, did not withdraw his name from the bond? He would not pretend to state the motives of the gentleman in question, as he did not know them; but he would answer the question as he thought that gentleman would answer it if he were put upon his oath—"I could not venture to withdraw my name from a bond which was signed by the lord advocate, and so many of the king's counsel, without exposing myself to considerable injury in my professional career." As to the manner in which this paper had been conducted, he would refer hon. members to the paper itself, and the enormous mass of libel which its pages contained. Some of them were written in a style of clumsy irony: others the shape of prosing metaphysical dissertations. The most clever of them were imitations of old Scottish ballads, which he could not read properly to the House, and which, if he could, he was sure the House could not understand. After the system of defaming and slandering all persons politically opposed to them had gone on for some time, the learned lord and his colleagues were at last detected as the proprietors of the paper. The moment that circumstance was known, it became impossible for the Beacon to exist any longer: the parties supporting it were so beset by personal responsibilities and claims of satisfaction from individuals who had been maligned in it, that it was totally impossible for the paper to survive the discovery which had been made of the names of its proprietors. That fact of itself spoke more against the respectability of the paper, than all the invectives which it was possible to bestow upon it.
He would now proceed to state certain circumstances which were connected with the failure of the Beacon. In August or September last, a correspondence took place between the learned lord, and a gentleman who had been slandered, by the Beacon; and in that correspondence, the 1334 learned lord was accounted responsible for the articles which had appeared in it. In that correspondence the learned lord entered into a defence of his conduct; and if he could satisfy the House that it was sufficient, either in a moral or a legal sense, or that it was becoming a man holding a judicial situation, then he would agree that there was no ground for his motion; but if the learned lord could not satisfy them upon those points, then he thought that he was entitled to call upon them to agree to the motion with which he should conclude. Here the hon. and learned gentleman read the following extract from a letter written by the lord advocate to Mr. Stuart:—"The obligation to which you refer," meaning the bond, "was acceded to by me at the first establishment of the paper in question; and if you suppose that was at all in contemplation either with me, or with any of those signed the bond, that publication was to become the vehicle of attack upon private character, you are much mistaken. It was the political principles which it proposed to espouse, that we alone declared, or meant to declare, our approval of. With respect of the conduct of that paper, I can safely assert that I have no sort of share in it. During the greater part of the period it has been published, I was in London. On coming to Scotland, I understood that actions of damages had, been, commenced, or were threatened, against the editor on account of articles, most of which I had never seen. Conceiving that any interference on my part with this publication at such a moment would connect me with it in a way which I did not think fitting, I kept entirely aloof from its concerns. You will say that, if I disapproved, I might have with drawn my name from the bond. But even supposing me to have entertained the same sentiments regarding the conduct of that paper which you do, I should have considered such a step, pending judicial proceedings commenced and threatened, as unfair towards one of the parties, and that it might have subjected me to the imputation of some wish to free myself from the consequences of the pecuniary obligations under which I had come." From this letter it appeared, that the learned lord disclaimed all attacks upon private character, and likewise all interference with parties who were likely to come before courts of justice. The declaration was a noble one; but against 1335 it, he would put in opposition a long series of his acts. The House would recollect the character which belonged to the "Glasgow Sentinel," previous to the learned lord's recommendation of it, and down even to the present hour: it would also recollect, that the learned lord had the fate of the Beacon in his bands, during all the time that it was running its course of slander and infamy, and that he could, have extinguished it at any moment he thought fit. Now, unless the learned lord could prove that there had never been, either in the "Clydesdale Journal," the "Glasgow Sentinel," or the "Beacon," any attack upon private character—unless he could show that he never signed a recommendation in favour of the first of these papers, or signed a bond to support the last—and unless he could also show, that having discovered the real character of those papers, he took active steps to withdraw his support and patronage from them, it availed the learned lord nothing, that now when he was detected, he said, "I dislike all attacks upon private character, and have never made myself a party thereto." The learned lord must be judged like other men, not by his declarations, but by his continued acts from Nov.1820, down to Sept.1821,—by his recommendation of the Clydesdale Journal—by his subscription to the Beacon—that paper which derived its existence from the contribution of his money; its extinction From his withdrawal of support.
So much for the first part of the learned lord's defence! In the second part, the learned lord said, that he was in London during the greater part of the period during which the Beacon was published, and that be had never seen the greater part of its most blameable articles. Now he was ready to prove, that all the numbers of the Beacon published during the time the learned lord was in London were regularly transmitted to him. He could not, indeed, prove that the learned lord had read them; but he thought the presumption was, that the learned lord had read them. The learned lord likewise said that he had no share whatsoever in the conduct of the Beacon. Now, it happened Singularly enough to him (Mr. A.) the other night, that after he had heard the Speech of the learned lord upon the Scotch Jury bill, he went home, and as he always took, great interest in the Beacon, turned over its pages until he was attracted by a 1336 paragraph headed "Mr. Kennedy's Scottish Jury Bill." On reading the paragraph he thought he had heard similar doctrines propounded lately: he proceeded, and felt his conviction of that fact growing stronger and stronger every minute; until at last he found that be had got the learned lord's speech against that bill, argument for argument, topic for topic, illustration for illustration. A similar coincidence was likewise to be found between some remarks in the Beacon on the bill to prevent cruelty towards animals and a speech made upon it by the learned lord. He therefore left it to the House to judge whether the learned lord had no sort of share in the management of that paper.—The learned lord appeared to have some reluctance at the time be wrote the letter which he had quoted to withdraw his name from the bond; but he was afterwards obliged to do so under circumstances which indelibly fixed upon him and his colleagues the whole disgrace and infamy of the thing. Indeed, the fact was, that though on the 15th of September be refused to withdraw his name from a fear of prejudicing one of the parties in a court of justice, not ten days afterwards, he did withdraw it, but not until the whole secret and mystery of it had been fully unravelled. Such was the defence of the learned lord in a moral point of view. He would now consider it in a legal point of view, and as applicable to the high situation which the learned lord filled. He was sure that the learned lord could not dispute, that by the Beacon bond, he and his colleagues had made themselves proprietors of that paper; and having done so, it would be in vain for them to say that they were not responsible for every thing that appeared in it. What would the learned lord say, supposing an individual whom he was prosecuting for a libel was to say to him, "I am not only ignorant of the nature of this libel, but am averse to its very existence. It has been published by my agents, not only without my knowledge, but contrary to my express injunctions?" Would he not reply: "You knowingly made yourself responsible for every thing published by your agent, and your ignorance of the libellous nature of this publication can by no means shelter you from the consequences of disseminating it?" That this was strict law, had been established in the celebrated case of captain Johnson. But bow could the noble lord ever use that argument in 1337 future? If he did, what answer could he make to the individual who should wield against him the very argument which he now wished to employ in his own defence? He could not see how the learned lord could extricate himself from the dilemma to which such an argument would necessarily reduce him.
The hon. and learned member then proceeded to remark upon the strange situation in which the learned lord was placed, in appearing as the public prosecutor of Mr. Stuart for the death of sir A. Boswell. What must have been his feelings, whilst he conducted that trial, upon recollecting that it was the system promoted by the money and the patronage which he had given to the Sentinel and the Beacon that had compelled Mr. Stuart to resort to the vindication of his injured honour? He was about to state a case in proof—that the manner in which the Beacon was conducted had led to a violation of the peace, and to this end he should read a short extract from that paper. [The passage was to the effect, that the readers of the Beacon would observe a change in the name of the publisher of the paper; that this circumstance was caused by Stevenson's having been that day called upon to keep the peace for the space of 12 months, and under large recognizances; and that as it appeared, that the same acknowledgment in proof of his being the publisher as had hitherto been made might lead to what would, perhaps, be considered a breach of the peace, it was found no longer expedient to retain him in that situation.] So much for the probable breach of the peace. He would come now to the actual one—to the more serious charge of the parties in this paper having done that which led to the commission of murder. A distinct notice was given in the Beacon, of its being at all times ready to give full satisfaction—of its being at all times ready to give up names, and to offer "full satisfaction." The notice ran thus: "We abhor all concealment, and should consider it quite unworthy of the cause in which we are engaged." It went on to declare, that they would never refuse to name the writers of articles to the parties concerned in demanding them, upon their being asked for; and therefore, as they disdained all concealment, and were ready to give full satisfaction whenever required, it must be acknowledged that their paper of all others was con- 1338 ducted on principles the most gentlemanly. But this was not all. He must beg to refer the House to one of those transactions in which it appeared that the person the most deeply interested in favour of this paper had committed himself in a manner the most extraordinary; and why such conduct had not been prevented or prohibited by those who had authority to interfere, he was at a loss to understand. In October, 1821, after the most gross abuse had been; for some time lavished upon him in the Glasgow Sentinel, Mr. Stuart thought fit to bring an action against Robert Alexander and W. M. Borthwick, as the publishers of that journal. Of the grossness of that abuse, the House might judge by the following extract. The passage was an allusion to some personal encounter that had taken place between Mr. Stevenson and Mr. Stuart. "What did Mr. Stevenson do to take amends for this gross outrage on his person? Just what any gentleman of his respectability should have done, and what no person of the least claim to the character of the gentleman could have avoided. He sought satisfaction from his antagonist. But, oh, Shame to the dishonoured blood of the house and name of Stuart—he, with a meanness, only discernible in low life and in humble society, sought his personal safety in the most glaring cowardice. The blustering and the passionate are always in the rear of danger. James Stuart was consequently posted as a coward and poltroon. The very rabble and oyster-women in the streets of Edinburgh read the label, mused upon the circumstances, and blushed for their patriot. We are not the advocates of duelling, Good forbid!"
The next part of these proceedings upon which he should touch, was, perhaps, the most important of all. It imposed upon him the necessity of referring, in the first place, to a paper, subscribed to which he found the names of two lords advocate-depute. Mr. Stuart brought his action as he had already said. In the course of the proceeding it became necessary upon the condescendence given for Mr. Stuart in this action, for the printer and proprietor of the Sentinel to give in their answers. These answers were accordingly given in. Upon this case the two learned lords depute had given an opinion. "that the passages libeled were not without sufficient provocation given; and were within the fair 1339 and ordinary limits of newspaper discussion." The answers of the respondents were these—"The respondents generally deny the truth of the libel. They affirm that the statements in the newspaper complained of are true. They offer to prove, by the evidence of persons of high character and skill in the laws and practice of honour, that the conduct of the pursuer, in regard to the affair with Mr. Stevenson, was most ungentlemanly, and deserving of every condemnation." This paper was signed, "For D. M'Neil, John Hope." He would not suppose that these persons could ever hope that such a paper as they had put on record, could for one moment be listened to by any court in this kingdom. He could not imagine that they were ignorant, that they were aggravating the offence, by putting on record this sort of defence. But those learned lords who had signed the opinion had done more. They had recorded their disposition to countenance and support those who were the writers and the publishers of libellous remarks, that were calculated to lead to bloodshed and murder. This particular action seemed never to have been regularly brought before the court of justiciary. But if the House looked at the period at which this "gentlemanly" paper, that succeeded the Beacon, put forth the passages libelled, and then referred to the opinion of the two learned lords depute, they would find that the learned lords put this defence on record at a time when they were not sure but it might be their duty, on finding the same parties brought to trial again, to hear their case.
But, important and astonishing as the facts were which he had already mentioned, having shown that the learned lord had disqualified himself by his own acts from doing justice to the high situation which he filled, he had yet that to state of the conduct of that learned lord, in direct connexion with his judicial capacity, which did, in his opinion, clearly establish the strongest proof of oppression and injustice. It was the case of William Murray Borthwick. This person was the proprietor and editor of the Clydesdale Journal, in November 1820, when he first had the honour of receiving the countenance and protection of the learned lord. Borthwick had at that time some connexion with a person named Alexander. Sometimes he seemed to have been a partner; at others, to have been employed 1340 on the paper at a fixed salary. However that might be, in November 1821, they were publishing the Sentinel at Glasgow, under the firm of Alexander and Co. It was not very clear how this connexion was first broken. Thus much at least was certain, that Borthwick was very much dissatisfied, and proposed dissolving partnership. In the same month of November, 1821, Borthwick and Alexander entered into an agreement to that effect, accompanied by the conditions, that Borthwick should receive 20l. in money, and 90l. in bills upon good security. These bills were to be paid, on a day named, and to be delivered before the 8th of December. Alexander accordingly paid him the 20l., and gave Aim one bill for a small amount; whether that was a good one or not, did not appear; but on the 18th of December, Borthwick not having been able to obtain the fulfilment of the conditions, instituted a proceeding before the magistrates at Glasgow, with a view of having the contract carried into execution; or, in case of not procuring the fulfilment of such contract, of being re-in-stated in the possession of his property. Now, on the very day that Borthwick gave notice that he would so proceed, Alexander took the necessary, steps for advertising the dissolution of the partnership between them. Judgment was pronounced by the magistrates at Glasgow on the 14th of February following. They ordained, that within six days of that date Alexander should deliver to Borthwick the bills concluded for in his petition; or, failing to do so, then they decerned the other alternative. That alternative was, the taking possession of his former property and interest in the paper in question. Borthwick, however, declined to take possession on the 20th of February as he was entitled to do: but on the first of March, armed with his judgment, he entered on the premises where the business was carried on, and remained there for ten hours. He carried with him his own key, and opened with it the safe, of which he was thus the legal proprietor. He took those papers which it seemed fitting to him, as the proprietor of the concern, to carry away, and returned home, after this "robbery" (if it could be so called) of his own office. From the 20th of February to the 1st of March, Alexander took no steps to impeach the acts of Borthwick. But without impeaching the judgment, trumped up a 1341 story of a debt—since proved to be utterly Unfounded—and, on the 2nd of March, procured Borthwick to be arrested for it. Borthwick was imprisoned in the gaol of Glasgow, and liberated on the 10th of March. The course which Borthwick took, after getting possession of his papers, was, within a very few minutes, to record his own act in Glasgow. The mode of committing this theft on his own property in the mean time had not been unknown to Alexander and the other parties concerned in the paper. But on that same day that Borthwick was thus liberated, another step was taken by Alexander. He charged Borthwick with a theft. When a charge of this sort was to be proceeded in it was to be done in one of two ways—either by the procurator fiscal taking on himself the responsibility of the proceeding, or by the party, the pursuer, acting with the approbation and cognizance of the procurator fiscal. Now, when the charge in this case was first made, it was in the name of the procurator fiscal alone, without any mention of Alexander. When the paper was brought before the procurator fiscal, it was remarkable that he signed it with the addition only of the word "concurs." The inference to be drawn from this was, that the procurator fiscal was so struck with a conviction that there was not the least foundation for the charge, that he did this in order to relieve himself from the responsibility of appearing to have given any weight to it. But the only magistrates before whom Borthwick was brought or even could be, on this account, were the magistrates of Glasgow. Their verdict was, that no grounds whatever were laid for the charge, and accordingly they dismissed him. From Glasgow, Borthwick went to Edinburgh and Dundee. At both those places he lived without any view to concealment. A legal proceeding was some time after instituted at Edinburgh against the paper by Mr. Stuart, but as the House were already aware of these transactions and their consequences, he would not detail them. The proceeding appeared in the first instance to be limited to the obtaining possession of a paper. In the mean time the duel between sir A. Boswell and Mr. Stuart was fought; and here a new course of things would open on the attention of the House. It was proper to premise that in the proceedings that took place before the sheriff at Edinburgh, 1342 every part of those which had been had before the magistrates of Glasgow was opened to him; that the counsel for Alexander was Mr. D. M'Neil; and that the lord advocate was fully cognisant of the whole affair. Mr. M'Neil knew that Borthwick had taken possession of the paper in question under the authority of the magistrates at Glasgow; that he had subsequently been called before them, and was by them acquitted. On the 3rd of April, Borthwick was arrested at Dundee, under the apprehension, as it had been stated, that being obliged to fly from justice, he was about to proceed to America. For a man intending to go to America, it certainly did not immediately appear that the best way he could take was to proceed to the eastern coast of Scotland. Borthwick, however, was arrested, manacled, put in irons, which were too small, and produced to the unfortunate individual the greatest suffering imaginable. He was compelled in this condition to cross a public place between two men who were armed, appearing as if he were the most desperate of male factors. Between these two persons, armed with pistols, Borthwick was conveyed into a post-chaise, and brought to Edinburgh. There he was imprisoned, and all access to him denied. In Edinburgh gaol he was treated as the worst of malefactors. He applied for bail, and was opposed, and it was at length refused. Upon the 6th of April he was indicted, the lord advocate being his prosecutor. The day of trial was fixed for the 24th of April; but when he came into court to take his trial on that day, the public prosecutor-depute, Mr. John Hope, did not think fit to bring the case on. Every effort was made by the counsel of Mr. Borthwick to induce him to bring it on, but in vain. Borthwick himself expressed his great anxiety to be tried, conscious of his own innocence. The representative of the trial, advocate, Mr. John Hope, this public prosecutor, on the day appointed for the trial, deserted the diet, pro loco et tempore, saying he was not inclined to try this man. All the circumstances, however, which had just been stated to the House, were known to Borthwick's prosecutors: they had not undergone the slightest alteration; so that there was noting on the score of novelty in the case to be pleaded. Yet Mr. John Hope said, "I will not try you; but I have still my 40 days left;" and in his mercy and kindness was pleased to say to Borthwick, 1343 still in imprisonment, "If you choose to go out on no small bail, I will not object." Borthwick's counsel replied in a way which might serve to show what the honour and tenderness really were which actuated the law-officers in making this proposition to his client. Be it always remembered that that client was accused of stealing his own property. When he saw so many grave authorities arrayed against him, he might well look with some suspicion at their proffered tenderness. Mr. Cockburn, the counsel for Borthwick, said, "I can not advise my client to take the benefit of Mr. Hope's offer; for if he does, be loses his chance of getting finally rid of this charge under the act of 1701." His only chance of doing so was, to act under the proceeding that had been taken out against him by the lord advocate; and the utmost farther length to which that could then endure was 40 days. Therefore Borthwick wisely chose to say, "I will remain in prison, and rather put my trust in the protection of an act of parliament than accept the offer of the lord advocate." Mr. Hope afterwards contended, that the law of Mr. Cockburn, who had so well advised his client, was quite wrong. But Borthwick decided to remain in prison till the expiry of the 40 days. Previously to this, he had been removed from the gaol in Edinburgh to that of Glasgow. After the 40 days had passed, Borthwick, finding that no charge was attempted to be brought against him, applied to the justiciary court for redress, and pleaded, that, under the act of 1701, he was entitled to be discharged. So said the judges, too; and an order for his liberation was actually given. But on the same day, and after it was known that such order had been given by the lords of justiciary, application was made to them, setting out that a charge had been brought against Borthwick by Alexander with the concurrence of the learned lord; that charge being the same in its nature, though somewhat varied in its form, with that which the magistrates of Glasgow had already heard and dismissed, and which those parties dared not to bring against him. After this, Borthwick was subjected to a series of persecutions. The learned lord might say "I had no option—I was not bound to give my concurrence." He (Mr. A.) had already shown in how few instances this concurrence was resorted to in Scotland. He had referred to some authorities on the subject, and among 1344 others to Hume on the criminal law of Scotland. He would put Borthwick's case to the feeling and sense of the House. This was a charge proved to be utterly false; and after all these proceedings, when the day of trial came, the learned lord refused to go on. But it appeared that the lord advocate was so trammelled in his situation, that he was obliged to refuse his concourse! Good God! was the lord advocate all-powerful in every thing but in standing between oppression and the oppressed? Was he only to be the instrument of, not the defence against, persecution? He conjured the House to recollect, that all these proceedings took place in a country where there was no grand jury—where the learned lord originated all prosecutions on his own responsibility. He begged leave to ask the learned lord one question. If he thought Borthwick innocent at Glasgow, and he did not choose to proceed against him, why did he not discharge him? If he thought hint still guilty, why did he allow Mr. Alexander to interpose? The answer spoke plainly for itself. The learned lord knew that there was no foundation for the charge, and that it arose out of nothing but the spirit of persecution. Such was the case with regard to Borthwick, with this single exception, that immediately after Mr. Stuart's trial was concluded, Borthwick was released. Within 48 hours, without any trial, without an opportunity of facing the learned lord, or of appealing to a jury, he was discharged after 70 days confinement. It was worth while to trace the connexion of this injured individual with the learned lord. In 1820, he wrote to him that he should be happy to get government advertisements into his paper, but could not see how it could be done; and in the same year he signed a recommendation of the journal conducted by Borthwick. The instant, however, that this unhappy man became instrumental in exposing calumniators and slanderers, he was arrested at Dundee, put in irons, and treated with unusual, with unheard-of severity. A day was fixed for his trial; the learned lord and Mr. Alexander jointly proceeded against him; but when Mr. Stuart was acquitted, Borthwick was set free. Could any man, then, hesitate in saying that there had existed a strong desire to create a prejudice against Mr. Stuart on his trial by these steps against Borthwick? It could not be for gotten how the press teemed with paragraphs copies from 1345 the government journals in Scotland, alleging that Mr. Stuart became improperly possessed of the papers, in order to augment that prejudice. The attempt was to implicate Mr. Stuart, and it formed a prominent part of the indictment, which, in the opinion of the lord justice Clerk, was not only not proved, but absolutely disproved. A very convincing part of the case was what took place on that trial. Whenever a witness was examined, up sprang a counsel for Mr. Alexander to require that the witness might not remain in court after he had been examined, lest he should bear what others might depose, and adding, that all of them would have to be called again on the next Monday. Who was the individual that made this request? The learned lord would not deny that he was very frequently employed as an assistant in the office of which he was the head. But whether this were or were not so, there sat the learned lord, taking care that the prejudice should be kept alive to the latest moment. If such abuses as these did not justify inquiry, it was impossible that any case demanding it could be made out. If the House did not inquire, it must be dead to every feeling justice, and lost to all sympathy with the oppressed. Without investigation of such matters, there could be no real liberty, for it was impossible to conceive a more direct inroad upon it, than such a cruel persecution under the forms of law.
He put it to the House, whether he had not now redeemed his pledge, when he asserted that justice had been perverted for bad purposes. He wished the House to grant inquiry for many reasons. First, because as a Scotchman, he was anxious that ministers, the House, and the country, should know how Scotland was governed. Secondly, for the sake of the learned lord himself: for he could not be deemed free from taint and imputation, unless a full, fair, free, and impartial investigation took place. He would here mention, that there were such persons as Mr. Gibson and Mr. Cheape, and with their assistance, he thought he could make out a ground which would ensure him the support of the learned lord himself. Mr. Gibson brought an action against Mr. Cheape, a gentleman of the bar, stating him to be the real editor of the Beacon, and against another person of the name of Gibson. This action was no sooner commenced, than a most ingenious 1346 device was thought of. An action was brought by Stevenson against a man of the name of Nimmo, a journeyman engaged in the office at 25s. a week, upon the allegation that Nimmo was bound to indemnify Stevenson against the consequences of the actions for damages brought against him by a noble lord,(A. Hamilton) and Mr. Gibson. On the very day this fictitious action was brought, Nimmo took his departure from Edinburgh for Paris, where he still remained. Without going into detail, he would tell the learned lord, that if he thought the good opinion of his fellow-citizens of any value, it was of the utmost importance, that he should submit both Cheape and Nimmo to examination. He never should be satisfied of the rectitude of the learned lord, unless Cheape and Nimmo were so submitted.
He had now concluded his statement, with the exception of one point. Some time before the Beacon was established, the Edinburgh Correspondent received the regular support of the learned lord: a great portion of the influence of government was used in its favour until the time of the Queen's trial, when the editor found some reluctance to insert all that was required of him. Displeasure was accordingly expressed, and afterwards the Beacon was set up, the Correspondent sustaining great loss by the withdrawing of the support it had before received. Subsequently, the friends of the learned lord again turned their attention to the Correspondent, but some unwillingness was displayed to libel the noble member for Lanark, and Mr. Stuart, and the articles were returned. Nevertheless, negotiations were continued, with a little more caution, indeed, than in the case of the Beacon. The negotiation was undertaken on the part of certain individuals, and in some degree respected the point to which personal abuse and scurrility was to be carried. The main question was, who should be the editor? And it naturally seemed essential that he should be person not known in Edinburgh. They retained some degree of partiality for the old system of the Beacon, and as it was desirable to have an editor who would also perform the part of a bully and a bravo, they pitched upon an Irish student. Afterwards they made a change for a gentleman from Oxford. This was one part of the case to which he should proceed, if the House granted 1347 a committee, and in all these transactions respecting the Correspondent he should be able to connect one or other of the Crown counsel as a principal actor and mover. These events were quite recent. He was sorry to have been under the necessity of addressing the House at such length, but he entreated it to recollect that on this occasion it was the arbiter of the fate of Scotland. The present appeal was made to it because it could be made to no other quarter; and he was greatly mistaken if it would not, by its vote, decide that be had made out a strong primâ facie case, requiring a full, fair, free, and impartial inquiry. He had endeavoured to show that these proceedings were conducted upon system; that the papers he had named were patronized, encouraged, and maintained by persons holding situations which ought to have prevented their interference; always referring to the learned lord and his colleagues as public prosecutors. He had shown that the district of Hamilton had been overrun with libels; that the town, formerly the abode of peace and concord, had been distracted by heart-burnings and political animosities, and that the conservator of the peace had been the fomenter of the dispute. So extensive and powerful had been the effect of the example, that from Inverness to Dumfries, newspapers had been established more or less upon the plan promoted by the learned lord; and he regretted to add, that in some instances clergymen were concerned in them, though, generally speaking, they were supported by borough magistrates, and by persons holding inferior situations in the law, and who looked up to the learned lord in his double capacity of secretary of state for Scotland, and lord advocate, for recommendation and patronage. He entreated the House to recollect, that the death of sir A. Boswell was not the only result of this system of personal calumny. Mr. Scott, a gentleman of education and Character, had fallen a sacrifice to Scotch libels; his death only seemed to give slanderers fresh vigour and fresh venom. The first victim of their malignity had fallen the first victim to their pistols; and hence they concluded that they might proceed with impunity. He asked the House to pronounce no opinion in the outset, but he thought he had shown a sufficient grouped for inquiry. He therefore moved, "That a committee be appointed, for the pur- 1348 pose of inquiring into the conduct of the lord advocate, and the other law officers of the Crown in Scotland, with relation to the public Press, and more especially to inquire into the prosecution carried on against W. Borthwick."
The Lord Advocatesaid, he felt it a painful duty to be obliged to rise upon this occasion. There were few men whose conduct had been so arraigned: he believed it had happened to no man before him to be thus arraigned before the Commons of England. Nothing could be more difficult than the task which he had to discharge upon this occasion. He felt that in approaching this discussion, his character, credit, and future happiness were at stake. But, while he said this, he did not mean to complain either, of the manner or the time of bringing forward this motion. He certainly was not prepared, from the nature of the notice given by the learned member, to expect such a statement. He thought from the notice, that there would be merely a general inquiry into the Press of Scotland and no more. When Mr. Whitbread made a motion respecting the lord advocate of that period, he first moved fur certain documents, which put the House and the country in possession of the charge; and the lord advocate was, fully prepared to meet it. With him, however, it was different: he now heard, for the first time, many of the charges which he was called upon to answer. He did not, however, complain of this, but he must be pardoned for saying, that he, owed the learned member no particular, obligation for the course he had pursued. Still he entertained no hostile feeling: he knew the learned member's brother well. Of the learned mover he had no other knowledge than as a member of that House, and an able advocate at the bar; and he was sure that the learned member's character was not likely to suffer from the able manner in which he had introduced his motion. But, in common fairness, the charge ought to have been brought soon after the alleged offence. All the facts were made public ten months ago. In August, 1821, the Correspondence was known to the world. During this interval, it had been said all over Scotland, that he did not dare to face the House of Commons. But, though he had been present on the first day of the session, and for two months afterwards. The learned member had given 1349 no hint of his intended proceeding. It was not until the day before the Easter recess that the undefined notice was given—three days after the unfortunate affair in which sir A. Boswell lost his life, when public feeling was most roused regarding it, and when discussion seemed least of all proper. Thus it remained until the day was fixed, when he had intimated his intention of going down to the trial: then, and not till then, was a day named, and he had proceeded to Scotland with it hanging over his head. Surely, if at all, it was the duty of the learned gentleman to have brought forward his accusation before that important trial; for if he had disgraced his office, he was unfit to discharge a duty so responsible. He had always concluded that the case was to be limited to his own acts and deeds: he did not imagine that it was to include his friends; and as the complaint extended both to his personal conduct and to his official character, the motion ought to have been divided into two parts, that each might be separately answered. He begged farther to remark, that he hardly came before this synod fairly. For the last fortnight the press had teemed with matter obviously intended to affect the minds of members; but he felt confident that the audience he was addressing would dismiss all such matters from their recollection, and would decide the question on its fair and honest merits. If the learned gentleman could postpone his motion until the present day, surely he might have delayed it a little longer. At this moment a suit for 10,000l. was pending against him in the Jury Court, as a proprietor of one of these newspapers. It was to come on in the beginning of the ensuing month, and then it must be decided whether he was or was not responsible. The learned gentleman had named many other individuals and among them the solicitor-general of Scotland, Mr. Hope, Mr. M'Neil, Mr. Cheape, and Mr. Alton, and their case was peculiarly severe, because it was necessarily intrusted to him, when he had had no means of communication.—The learned lord then proceeded to advert to what had fallen from Mr. Abercromby on the subject of the powers of the lord advocate, and contended that the prosecutions which, by the law of Scotland, he originated, had of late years been extremely limited. This fact showed that the general feeling was, that the 1350 powers had been faithfully, honestly, and beneficially executed. He also asserted, that the numbers of persons brought to trial in Scotland had been diminished, and were now fewer than in any other country of the same extent of population. In truth, the lord advocate brought no man to trial unless there were ample grounds to convict him. He contended farther, that by the Scotch law, the lord advocate could only imprison for 100 days, and not for 140 days, under the act of 1701. At the end of 100 days, the person charged with a crime might compel the lord advocate to bring him to trial. In England, if an offence were committed the day after the assizes, the criminal might remain in jail for six months without trial. He now came to matters of fact.—He was charged with a connexion with three newspapers. As to the Edinburgh Correspondent, the statement made by the learned gentleman was to him entirely new. He had, indeed, occasionally seen the Correspondent; it had been sent to his country house from time to time, but, excepting that, he solemnly protested he had no knowledge of, or concern with, that newspaper. If a committee could be appointed to inquire without an implied sentence of censure, he courted the closest investigation. He next came to the Sentinel, and he had been astonished to hear his name connected with it. So help him God, he had never seen the newspaper—he had never received—never supported it, and never, in any shape, had had any concern with it. In 1819, he received a letter, dated 3rd Nov., from a person of the name of Borthwick, in which he proposed a plan for the establishment of a newspaper. [The learned lord here read the letter, with his own answer, dated Nov. 5, 1819.] In his reply he had refused all interference; but the same individual made application in other quarters, and succeeded in commencing the Clydesdale Journal. He had uniformly refused all assistance; but at last, in Nov. 1820, Borthwick came to him with a statement, subscribed by many gentlemen with whom he was acquainted. It stated, that Borthwick had been actually ruined by supporting that newspaper, and prayed that he would assist him. Still he refused to do any thing. He did not sign the paper—he had recollection of having put his name to it—and the impression on his mind was so strong that 1351 he had not, that if he were sworn he should say that he had not signed it. Of course the paper would speak for itself, and if his name were affixed to it, it would show that he was in error: [Mr. Abercromby handed a paper across the table, which was understood to bear the name of the lord advocate.] That put an end to all doubt; but he trusted that the House would give him credit for believing until he saw the paper, that he had not signed it. The House would allow him to say, that he had long resided in Lanark; had many connexions there; and was applied to in his private capacity as a freeholder of the county to support a publication which seemed much needed. The press of Scotland at that time was loudly complained of. In 1820, various trials had place for seditious and libellous publications, and insurrections had actually broken out in several districts. Subsequently to that period, the press of Scotland promulgated the most licentious opinions, and every effort was resorted to for the purpose of stirring up and inflaming the minds of the people. There was not a county in Scotland from which complaints did not arrive, describing the ill effects that were produced by the manner in which the press was conducted. Things were in this situation, when an individual recommended him to give his support to the Clydesdale Journal, which, he observed, had already received the support of many other persons. He, perceiving that the great object of the press in Scotland was to make the people unhappy and dissatisfied with their condition, did promise to recommend the paper in question amongst those who were exposed to the operation of the licentious press. But his support did not extend, and was not meant to extend, to any improper articles that might appear in the paper; neither did he advance any money towards upholding it. That publication soon ceased. Mr. Borthwick became a bankrupt: his types were sold, and purchased by Mr. Alexander. Shortly afterwards they removed to Glasgow, and set up a new paper called the Glasgow Sentinel. Now, the learned gentleman had spoken of libels which appeared in that paper, before he (the lord advocate) knew any thing about it. He expected, that the learned gentleman would, in making out a primâ facie case against him, have read some of those libellous passages; but he had done 1352 no such thing. How could he be responsible for what appeared in the Glasgow Sentinel—a paper of a different name from that which he had been originally called on to support, conducted by different persons, and going to different places? Was it fair to say, that he should answer for what appeared in it, when he declared that he never gave it any assistance directly or indirectly? He disowned it once for all; and he declared before the House, that it was untrue to assert that he countenanced it in any shape whatever.—He now came to the most serious part of this charge—he meant that which related to an individual holding the place of sheriff-substitute, having written for the Sentinel. Whether that person had or had not written any thing in the paper in question, he could not say. But he felt it right to state, that he had intended to make an entire change amongst his sheriffs substitute; but, in consequence of the hurry of business, and the difficulty of finding proper persons to fill the office, he was prevented from carrying his intentions into effect. Consequently, the individual alluded to, still remained in the office of sheriff.—Now, as to that part of the charge—which referred to the Beacon, it was certainly true, that at the end of the year 1820, a number of gentlemen of great respectability, but none of whom acted under his influence, did think it would be advantageous to the country, at that moment, if a newspaper were established—not for the purpose of oppression, but to meet and to expose the doctrines contained in libellous and seditious papers which were disseminated in every direction. Having come to that resolution, and a sum of 1,500l. being wanted to carry it into effect, it was agreed that it should be subscribed for at the rate of 100l. each. Application was made to him, and he certainly did subscribe. [Hear!] He did not come into that House to deny any fact, but to state boldly and fairly what he did. He would contend, that the object of those individuals was a just, honest, and legal one. He gave that sum of 100l. out of his own pocket; and, in advancing it, he felt that he had not done that which was unlawful, or an act of which he ought to be ashamed. The publication commenced in Jan. 1821, and, immediataly after its commencement, he proceeded to London, where he remained till the end of June. He, during that time, paid no attention to the publication: 1353 he did not peruse it, he was ignorant of its contents. It had been said, that it contained libels, but the learned gentleman must know that something more than mere assertion was necessary. He would, therefore, ask, why he had not read some of those libels? Why he had not enabled the House to judge of the nature of the writings to which he had alluded? He had not done so; and the only alleged libel which had excited public attention, was that directed against the noble lord opposite (A. Hamilton), which had been tried within these few days, and in which case the jury gave but one shilling damages. There was no evidence before the House as to the publication of any libels in that paper. On that point no facts were stated, and of course he had nothing to answer; but it was proved, on the other hand, by the verdict of the jury, in the only case which was judicially investigated, that the charge of libel was false. [Hear from the Opposition benches.] He would only ask, whether the jury by their verdict of 1s. damages, where 5,000l. were laid, found that the charge of libel was true or false? He had been applied to by Mr. James Gibson, who stated that it was his intention to bring an action against him (the lord-advocate) and others, who, he believed, were connected with The Beacon, on account of some defamatory articles which had appeared in that paper; and Mr. Gibson wrote to him to contradict them. Sir James Stuart was the agent, of Mr. Gibson, and a correspondence took place between him and sir James, which was afterwards much commented on. Mr. Gibson sent the bond to him, which he sent back again. It afterwards fell into the hands of Alexander, and gave rise to farther correspondence. Complaints were made against the manner in which the paper was conducted. Whether they were true or false he knew not, but he certainly was not responsible for the matter contained in it. He had merely subscribed 100l. to support it, in the first instance; or rather, as was the way in which such things were managed in Scotland, he allowed application to be made to his banker for that sum, which was to be advanced en his surety. He, therefore, became surety to the extent of 100l. sterling. The bond stated expressly the terms under which that money was advanced. It was most expressly understood, that those who subscribed had not any con- 1354 cern in the property of the newspaper, nor any other responsibility regarding it, except that they became bound in the sum of 100l. each. They were not proprietors; they had no control, no command over the concern. The learned gentleman had laid it down as his opinion, that the bond made him and the other gentlemen active parties in the concern. He took a very different view of the subject. The question was now, however, under the consideration of the Jury court; and it was for the House to decide, whether they would now give an opinion on that case, or leave it to the court before which it was pending. He certainly never considered himself as a proprietor of the paper, or as being beneficially concerned with it. He always looked upon himself merely as the contributor of 100l.; and as the paper was said to be so ill-conducted, as it was described to be a very stupid document, he thought his 100l. was gone for ever. He withdrew his name from it in the month of July; and when he had taken this course, all the other subscribers followed. After that event, certain statements appeared in the paper, one of which the learned gentleman had read; and he (the lord advocate) thought it due to himself, and to the other gentlemen who had originally subscribed, to intimate to the public, that they had withdrawn their security from the paper. Such was a plain statement of the facts; and taking him, in the first place, as a private individual, was there any thing improper in what he had done? Papers were supported to promulgate the opinions held by gentlemen who differed from him in politics, and he could see no reason why those who thought as he did might not have recourse to the same system. There would be an lend to all discussion, if this liberty were allowed only on one side; and, therefore, he thought he had not done wrong in supporting the paper in question, to the extent he had stated. Surely, as an individual, he was entitled to use his own money as he pleased. The question then was, whether there was any thing in his public situation that ought to have prevented him from proceeding as he had done? And here he confessed, he was somewhat at a loss to follow the learned member through the reasons, he had adduced to show that he ought not to have subscribed. The learned gentleman argued, that he (the lord-advocate) might be judicially connected with a cause grow- 1355 ing out of libellous matter published in the paper. But how could it be? Libel in Scotland was not made the ground-work of a criminal proceeding: it was prosecuted by action for damages brought by the party injured. Therefore, so far as he was concerned, his public situation could not affect the case at all. If libels did occur, the course for the aggrieved party to pursue was, to bring his action, as the noble lord (A. Hamilton) had done, and to call for damages proportioned to the evil of which he complained. If, on the other hand, seditious articles against the Crown and the government were published (and certainly articles of such a nature were not likely to appear in that newspaper), how would it affect the individual holding a legal situation, who had subscribed 100l.? Would his having so subscribed prevent him from following up legal proceedings? Was it to be supposed that the base idea of his having expended 100l. in supporting the publication would prevent him from doing his duty? The lord-advocate could not conclude for damages, but only for punishment, against an accused individual; and therefore there was not the vestige of reason to prevent him from discharging his duty, as fully and as fairly as any other individual in the situation which he had the honour to hold. Many persons had been tried for offences against the state, committed in consequence of the licentiousness of the press in Scotland; and it never had occurred to him, that his right as a private individual to arrest those evils was interfered with because he was a public officer. When he saw the manner in which the paper was conducted in the month of July, he withdrew his name from it. He thought the facts were now before the House; and, in his opinion, they might be decided without the intervention of a committee. The learned gentleman had, he thought, expressed himself rather too strongly in speaking of two hon. and learned friends of his—he alluded to Messrs. Hope and M'Neil. The learned gentleman had censured them for signing answers to a condescendence in a case in which they were concerned, because they were sheriffs-depute. Now, those gentlemen were not excluded from professional practice because employed in the office he had just mentioned; and to make the lord-advocate responsible for their conduct, was a thing never before heard of. Having received deputations, for performing the 1356 duties attached to which they were miserably paid, it was never supposed that they would give up their practice. It was something new to him to hear censures cast on a counsel for stating his client's case. Objections were taken to the statement which those gentlemen had made; but Mr. Alexander and his counsel thought those statements were of great importance to his case. Where was the impropriety of their signing a paper which set forth the case of their client? The learned gentleman arraigned them severely for hating done that which, if they had not done, they would have sacrificed what they owed to their profession. He believed those gentlemen had done their duty, because he was convinced they were incapable of being influenced by the contemptible motives attributed to them. It was an extraordinary thing that the hon. and learned gentleman should have made such an attack on the solicitor-general, or Mr. Hope, or Mr. M'Neil, or Mr. Laing, without the slightest previous intimation. All these individuals were introduced that night without the most distant idea that such an intention existed. The consequence was, that no one was prepared to enter into an explanation of their conduct. With respect to the obloquy cast upon Mr. Hope, if the whole matter could be seen through, it would appear that he had been most unfairly treated. He was informed that a theft had been committed of a very atrocious description. He was aware of the mode in which the papers were procured by Borthwick. There was no warrant in the case; nothing was a warrant unless it was regularly extracted, and placed in the hands of a messenger to put it in force. A messenger alone could perform that duty. No man, not legally appointed, could force himself into the premises of another, for the purpose of serving a process. It appeared, therefore, to Mr. Hope, that a crime was committed. He felt that a crime might be committed by a partner against the remainder of a company; and it appeared to him, that, for the purpose of procuring; papers, Borthwick had broken open the private desk of Alexander. Whether he was or was not correct in that idea, was of no consequence. He might be wrong in the facts, but he was right in his law. They did not meet here on facts. What he had described was stated to Mr. Hope, and on that statement he had acted. He was led to believe that a gross crime had been 1357 committed; and he felt it necessary, as public prosecutor, to bring the accused party trial for the offence. Borthwick was in consequence arrested. As to his sufferings he knew nothing. He could not tell whether Borthwick had been placed in chains; but certain he was, that no order for using chains was sanctioned by the town council. After he was carried to Glasgow he was indicted; but on the day of his trial it was thought right—as it was felt that any investigation relative to those papers previously to the trial of Mr. Stuart would be, in some degree, anticipating the general question—to desert the diet, leaving it to the public prosecutor to bring the case forward on some other occasion. If the learned gentleman looked to the point of law, he would find, that Borthwick had no right to be set at liberty at, the time he was freed. By the statute of 1701, he might have been detained 40 day longer. As to any wrong which he might have suffered, far be it from him to justify it. By the law of Scotland, if the public prosecutor charged a person with theft or murder wrongfully, he had his remedy. And if the individual alluded to had suffered injury, it was for him to apply to a court of law, where he would obtain redress. As to the proceedings which had taken place, the government of the country had no knowledge of any one step that was adopted. Neither his majesty's ministers who were then around him, nor any one who was privy to those publications, were acquainted with them. Therefore, if there were any error, it rested on the individual who now addressed them. That individual had stated what he had done; he had declared his motives; and if he had done wrong, it was most proper and fitting that the Commons of England should condemn his conduct, either by a judgment of censure, or by such other mark of displeasure as the case seemed to require; and the consequence of which must be to remove him from his present situation. But if, on the other hand, he had done nothing but what the circumstances called for, he would hope for a contrary verdict. Still, in whatever way the case was decided, he would bow to it with perfect submission, and without complaint. If it pleased parliament by their vote to remove him from his situation, he should console himself with the reflection that many gentlemen could be selected for the office much better qualified to perform its duties than 1358 he was. But this he would say, that no man could be found who would endeavour to act more fairly, or to conduct the business attached to the situation with greater moderation and impartiality, than he had uniformly done.
Mr. Secretary Peelsaid, that upon all occasions like the present, when individual character and personal interests were involved, they had secured to the individual the indulgence of the House, as far as was consistent with strict justice. Upon such topics it was generally usual, and it was always wise to abstain from topics which appealed to men's passions, and led them from the exercise of their calm and sober judgment. Upon the present occasion the learned mover, not with the intention of doing so in all probability, had appealed to some topics highly calculated to create an undue prejudice against his learned friend. One was his allusion to time widow and children of the late sir A. Boswell, and another to the death of Mr. Scott; an individual who unfortunately lost his life in a similar manner. He did, therefore, think that the learned gentleman would have better discharged his duty by abstaining from the mention of these circumstances. Then, again, he had brought forward the language of Mr. Hope and Mr. M'Neill, used in a private conversation in a private place, and with a private client. He took this to be a very bad precedent to set; and if it had created any prejudice against his learned friend, he called upon the House to discharge it altogether from their minds. Let the House look at the case which it was called upon to decide. A notice had been given by the learned gentleman, that he should call the attention of parliament to the conduct of the lord advocate, as connected with his interference with the public press. It was three months since that notice had been given, and not the smallest intimation had, in the interim, been afforded, that the learned gentleman meant to call in question the conduct of any other persons. The House, then, was bound to discuss the case upon that notice; and they were, asked to decide it upon the single speech of the learned gentleman, and the papers which he had read to the House. He would first allude to the conduct impute to the lord advocate with respect to the paper called the Correspondent. The learned gentleman attempted to show, that, notwithstanding all which had passed 1359 with respect to the Beacon, the unfortunate dissention to which its conduct had given rise, and the still more unfortunate conflict which ensued, the lord advocate had persevered in introducing a fresh paper, conducted upon the same principles by which the Beacon had been distinguished. What answer had the lord advocate given to that charge? He had declared, upon his sacred honour, that he was ignorant of all transactions relative to the Correspondent. As to that charge, then, was the lord advocate's answer, or was it not, complete? The next point was the charge connected with the paper called the Sentinel. If, after the affair of the Beacon, the lord advocate had contributed to a newspaper pursuing the same course, he might justly have been charged with misconduct for so doing. But again, upon this head, what was the learned lord's answer? He declared, upon his honour, that of that paper, he knew nothing. If the House gave credit to the learned lord's assertion—and who was there in the House that would deny him credit?—the question was at an end. The learned gentleman, in touching upon the Clydesdale Journal, treated it as the same with the Sentinel, but existing under a different name. But the House would recollect that there had been a considerable interval between the failure of one of these papers, and the establishment of the other [Cries of No, No]. At all events, the lord advocate denied any connexion with the Sentinel; and let the House look at the nature of his connexion with Borthwick in the Clydesdale Journal. Could it even be pretended that that connexion had been sought for by the lord advocate? On the contrary, Borthwick had made the first application; and the answer with which that application had been met showed the animus with which the learned lord had connected himself with the public press. The hon. and learned gentleman, referring to the libellous paragraphs which had been published, said that an individual, holding a judicial situation, had been a party to that system of calumny and attack. The learned gentleman alluded, in fact, to Mr. Aiton, who, at the time in question, was sheriff-substitute of Lanarkshire; and he remarked that, though a change had taken place in the office of sheriff-depute, Mr. Aiton, still continued in his office. The charge, as touching the lord advocate, came shortly, to this—that he had recom- 1360 mended the present sheriff-depute to his appointment, for the purpose of securing Mr. Aiton's continuance as sheriff-substitute. Now, certainly, there had been a change in the situation of sheriff-depute of Lanarkshire. The change had been introduced by himself (Mr. Peel) at the recommendation of the commissioners of inquiry in Scotland: and its effect was, to make the sheriff a resident in his county, increasing his salary from 500l. to 800l. a-year. The next step to this change in. the nature of the office was to find an individual competent to fill it; and he had-purposely delayed the appointment more than two months, to give time for the application of candidates. At length, a noble friend of his, the first lord of the Admiralty, was about to visit Scotland, and he (Mr. Peel) gave him a list of the parties applying, desiring him to consult the law authorities in Scotland as to who would be fittest to hold the situation. The noble lord returned to him the name of the present sheriff-depute, and that gentleman was nominated. Such was the history of the sheriff-depute's appointment; and it was for the House to judge whether the lord advocate had abused his trust. For himself, he had never even heard Mr. Aiton's name until the present evening—As to the grand charge against his learned friend, that of his connexion with The Beacon, it was undoubtedly true, that he had become security to the extent of 100l. for that paper, that at the time he was lord advocate, and that the paper in question had made attacks on private character, which he did not stand there to defend, or palliate. If it could be made out that his learned friend had given encouragement to those attacks, he should have been the last man to advocate his caw; but if he established to his own satisfaction, that those attacks had been in no way contemplated by his learned trend, it was due to justice that he should endeavour to vindicate him. The charge was—his learned friend having lent his name and influence to the diffusion of private calumny and slander, and he met the charge, not by a defence of calumny, but by a denial of the fact. To explain the reason of the first connexion of the lord advocate with The Beacon, he referred to the state of thee press in Scotland, and the discontent and insubordination to the law which then, existed. In proof of this, he referred to the letter from the earl of Glasgow, lord- 1361 lieutenant of Renfrew, to the secretary of state, in Nov. 1819, which had been printed and laid before the House. It described the progress of union societies, and the wide circulation of seditious publications. If his learned friend in his capacity, not of lord advocate, but of secretary of state, desired to apply some antidote; if he followed the advice which had been so often given from the other side of the House, to meet discussion by discussion, to meet inflammatory publications by those inculcating obedience to the laws, was his conduct to be wondered at? If he had taken the advice that had been offered; if, without justifying private slander, he had encouraged legitimate discussion, inculcated constitutional principles, and arrayed talents in support of the laws, would any one have thought him fit to be criminated by a vote? Was it the privilege of a free press, that talent should find no support, but when it was exerted, against the constitution? What were the principles to which the obligation bound them? The bond recited, that a newspaper, called The Beacon, had just been "established on loyal and constitutional, principles." What the paper was he, never knew, for he had never seen a number of it; but he was anxious to see what the principles were in the prospectus. The terms which were there employed were certainly strong; but there was nothing to show that it was the intention to deal in private slander. He did not say, that, when the paper had deviated into that violation of its principles, it would not have been prudent for his learned friend to have given it up. But if they made every man answerable for every paragraph which might appear in a paper to which he might have given his patronage, though it might be extremum jus, it would be attended in its application with the extremest injustice to the party. They had heard, on the other side of the House, some high compliments paid to the conductors of newspapers. If he (Mr. P.) had charged the eulogist with extravagance, because he could adduce paragraphs hurting the feelings of females—because a paragraph had crept in, which perhaps the conductor himself would wish to retract—he should have been thought to have shown little fairness. The bond referred to the principles on which the paper was to have been conducted, and the prospectus stated those principles. The prospectus stated the 1362 necessity of an energetic defence of the constitution, and asserted, that "the evils of a free press were only to be corrected by a judicious use of its energies." He wished the publishers of the prospectus had adhered to it [Hear! from the Opposition]. He wished also that justice should be so far done to his learned friend, that he should be supposed, as he did, to feel the same wish. As for the attacks on private life in the correspondence which had been published, his learned friend not only disclaimed all authorship, but all knowledge of those attacks. The hon. mover had inferred the participation of the learned lord in these attacks—1st, because the paper was regularly sent him; and 2ndly, because of the similarity of documents in the paper to speeches of his learned friend. While the learned gentleman was speaking, he had asked his learned friend, whether be had ever written in the paper? His learned friend had answered, "I vow to God, never a word of it." As to the case of Borthwick, he should decline to enter into it, as he never knew that there was an intention of bringing it on. If they were satisfied as to the conduct of the lord advocate, as connected with the press, he asked in common justice that they would refrain from mixing up with it the consideration of any other case. If the powers of the lord advocate were excessive, let them have a distinct motion on the subject, but let them not now press it into the service, or eke out the proof that an officer ought to be censured by an argument to show that an office ought to be inquired into. It was not on the anomaly of the duty of the lord advocate, or the extent and asserted excessiveness of his powers, diet this motion could rest; and as to the conduct of his subordinates, he (Mr. P.) would not say he would refuse an inquiry, but that he thought it required a distinct notice. Though the lord advocate, was legelly responsible for his deputes, vet, in point of fact, he was 400 miles distant from them. Be doubted not, from the character of the parties, the circumstances alluded to would be satisfactorily explained; but there had been no time foe explanation. They should recollect, too, that in a few days a claim was to be tried against the lord advocate for 10,000l. damages, founded on his conduct in this very transaction; and he could not but think that in going into a committee, on the assumption that he was a proprietor 1363 in the Beacon, would not be consistent with the justice which the House was bound to administer.
§ Sir J. Mackintoshsaid, it was painful to him to rise at so late an hour, and, he might add, that it was not very consistent with his temper to offer himself as a voluntary accuser, or as the supporter of any accusation; and he declared, that nothing but a sense of what was due to public justice and public decorum, nothing but a desire to protect private life from slander, and to prevent the field of public discussion from being turned into an exhibition of indecency, vulgarity, barbarity and blood, could have induced him to enter himself as an accuser of a public officer, towards whom he had no hostile feeling. What had always advantageously distinguished this country from other free states was, the decency with which public discussions had been conducted. Occasional indecencies, occasional excesses, these were to be expected, and these were to be found in all parts of history; but systematic attacks on the sanctuary of private life, and systematic violations of the laws of decency, were reserved for our own unfortunate times. The grave question now before the House was, whether the public prosecutor in Scotland had not mixed and blended himself with this criminal system—whether he had not afforded it his encouragement in secret, until he had been detected and dragged to light—and whether the House of Commons could avoid inquiring into the proof that had been adduced? The right hon. secretary had said, that they wished to decide on the speech of his hon. and learned friend: they wished to do no such thing; they wished to inquire. The right hon. secretary said, it was not enough that an objectionable paragraph should have been found in a paper to subject the person who had patronized it to a criminal charge. But, the paper in question had not occasionally broken the law: it had continually, systematically, professedly, dealt in private slander. The right hon. secretary had alluded to a commendation which had formerly been bestowed by him (sir J. M.) on the conductor of a newspaper (Mr. Perry), for having in a long career avoided encroachments on decency, and abstained from private calumny and slander. But, was there a man so un can did as to suppose, that he had meant to assert, that in.40 years of zeal and hurry, the individual might not have transgressed the 1364 bounds which be had prescribed to himself? He could not undertake to say that there might not be improprieties, and very gross improprieties, in the paper in question; but he had known of none such, and the ground of his panegyric was the general absence of slander and indecency. The right hon. secretary had, with great skill, directed himself exclusively to secondary and subordinate points, which might all be conceded to him without affecting the strength of the case. He had entered into a long argument to show what be had never heard disputed—that if seditious principles were promulgated, it would be justifiable and even commendable in any man in office, to oppose them by the force of reason. The right hon. gentleman had said, that the learned lord was justified by the prospectus of the Beacon, and had very dexterously substituted one word for another. He had said the prospectus contained the principles of the Beacon. Far from it; it contained its professions; and experience convinced them, that professions, instead of being synonymous with principles, were frequently a pretext for the most audacious disregard of them. What had the prospectus of a newspaper to do with its principles, when the paper never contained discussion at all; when it was made up of breaches of privilege, violations of the decencies of society, intrusions on private life, and the perpetration of every crime of which the press could be made the medium. The learned lord had told them, that he never read the newspapers with which he had been connected, and particularly the Clydesdale Journal. If so, how did it happen that he signed a paper to recommend the Clydesdale Journal, from his experience of its principles? What would be said in private life of a man who would recommend a servant on such a principle? The learned lord had made it a virtue that he resisted at first the approaches of Borthwick. What signified it that his virtue held out for some time, if it failed at last? Of equal value was the right hon. gentleman's attempt to distinguish between the Sentinel and the Clydesdale Journal; when the Sentinel was actually entitled "late Clydesdale Journal," published by the same persons, supported by the same friends, enjoying the same correspondents, and filled with the same libels. And the right hon. gentleman asked, what evidence there was to prove the, libels in the 1365 Clydesdale Journal. There was the evidence of Borthwick himself, who complained that his paper had contained nothing but personal slander, in spite of himself. Then there was the statement of the hon. mover himself, that he was prepared to prove the fact before a committee. He called upon the House to say if a sufficient case for inquiry had not been made out. It was true that as long as anonymous ruffians, whom it would be dishonour and pollution to meet on terms of equality—as long as persons carried the most flagitious crimes visible in their countenance—as long as such detestable ruffians published their systematic calumnies against men and against women, against the feebleness of sex and the dignity of station, against the memory of the dead and the domestic peace of the living—instead of honour it would be dishonour to meet them as gentlemen; and if that House should sanction such infamous calumnies by a refusal to inquire, it would be chargeable with entailing the continuance of the system, and ruffians would carry on their infamous trade by the license and under the authority of the House of Commons. What better evidence could they have of the character and tendency of the writings in question, than the fact, that the paper recommended and fostered by the learned lord did produce a duel, which terminated in the death of one of the parties? The right hon. gentleman had talked much of the good intentions of the learned lord. His intentions might be good in private life; but he was now brought before the House as a public officer, and he could not be divested of his public character and responsibility by a speech which was, in truth, a pleading for mitigation of punishment, on the score of good intentions and good character. The right hon. secretary had asked, what share the learned lord was proved to have had in the paragraphs of the Beacon? He need not argue the point that this newspaper was filled with abominable paragraphs; for he was sure the right hon. gentleman would hold in as much detestation as he did, a publication which was not accidentally, but systematically, not partially, but almost exclusively, a tissue of calumnies and slanders. But the right hon. secretary contended that the learned lord had no share in those libels. Did he not contribute his money weekly to circulate them through every part of the kingdom? 1366 Did he not contribute to pay for the printing, the paper, the ink, and the wages of all the individuals connected with the paper? If he had paid a sum of money at once, he might not have been considered responsible for the subsequent conduct of the paper, but here was the first law officer of the Crown in Scotland weekly contributing his money in support of a paper which was weekly circulating the foulest calumnies and slanders. He laid entirely out of the case that part of the right hon. gentleman's argument in which he endeavoured to shew that the learned lord was not legally a proprietor of the paper. It mattered not whether the learned lord was strictly and technically liable as a proprietor; the right hon. gentleman: argued the case diverso intuitu, for they were not sitting in a court of law but in a house of parliament, to decide whether the alleged misconduct of a public officer did not impose upon them the duty of inquiring whether he had not set the example of undermining the best interests of morality by giving his countenance and support to a publication which set all decency, decorum, delicacy, and regard to private character, at defiance? He did not say that the learned lord was guilty; but he contended that such a primâ facie case of misconduct had been made out as called upon them to inquire whether he was guilty or innocent; whether he had not set an example tending to barbarise political contests, and introduce duelling, and eventually perhaps assassination itself? He put entirely out of view also the pending suits in which the learned lord was a party; for the committee would have no authority to inquire whether the party instituting that suit was entitled to damages or not, or whether the learned lord could be legally considered as a proprietor. The right hon. secretary complained of his learned friend for having introduced the extraordinary powers of the lord advocate, as irrelevant to the present question. Now, no topic could possibly be more pertinent. The maxim of law, do minimis non carat lex, was applicable to the functions of that House, as grand inquest of the nation. The House would not inquire into the conduct of a constable, but would leave such investigations to justices of the peace. But it would be recollected, that the present lord president of the court of session, when a Member of that House, had declared, that 1367 it would occupy the whole time of a debate to enumerate and describe the functions of the lord advocate. They comprised all the powers of a grand jury, an admirable institution, which unfortunately for Scotland did not exist in that country,—the powers of the whole privy council of Scotland, the lord chamberlain, the lord privy seal, the lord justice general, and other offices which had ceased to exist separately since the Union. The lord advocate was even commander in chief of the forces in Scotland; and the present lord president, adverting to that part of his functions, observed, that his military duties had been rendered somewhat light by the assistance of his noble friend. Surely the importance of this office furnished the strongest reason for the House watching the exercise of its duties with jealousy, when a strong primâ facie case of abuse had been made out. The right hon. secretary had asked, what would be the fate of official men if they were obliged to read every paragraph that appeared in the newspapers? He admitted that such a necessity would be extremely hard upon them. He should be extremely sorry himself to read half the paragraphs that appeared in many of the newspapers, nor had ha in fact time to read many of the paragraphs that appeared in any of them. If, however, he had contributed his money towards the support of a newspaper, and recommended its circulation, he should have felt it his duty, to take a glare at it once in eight months, to see whether it was deserving of his patronage. This might be a question of prudence with regard to an individual; but, in the case a the public prosecutor of Scotland, it was an imperious duty; and his neglect of that duty, which appeared even upon his own showing, was an instance of gross misconduct, which called loudly for inquiry. If the House refused to inquire into so gross a violation or public duty, they would forfeit their character of grand inquest of the nation, and the duty which they owed to the people of Scotland and England. With regard to the plea, which had been put on the record, in which the learned advocate said, that persons skilled in the laws of honour, were ready to impeach Mr. Stuart's conduct for having refused to fight a duel with Mr. Stevenson, he would ask, whether any court of justice in this country would sanction such a plea, or whether any counsel would not be repri- 1368 manded for putting upon the record an insult to the law, in defiance of all the principles upon which courts of justice were accustomed to act? He did not believe that any court would listen to such an argument of counsel, even in address to a jury, still less would they sanction it as a plea upon the record. Suppose it were stated in a plea, that robbery was no crime, or, according to the doctrine of that great philosopher Mr. Spence; who was once so frequently mentioned in that House, but who was now so totally forgotten, that rubbery was only a restoration of the natural rights of man, would any court of law sanction such a plea? He did not know whether the right hon. gentleman had read the authentic report of the trial of Mr. Stuart; but he would there see a specimen of the manner in which a counsel might discharge his duty to his client with the utmost vigour, and at the same time pay a due respect to the tribunals and laws of the country. He might truly say, that the admirable speech of Mr. Cockburn, in the case of Mr. Stuart, had not been surpassed by any effort in the whole range of ancient or modern forensic eloquence. It was a speech characterised by calm and forcible reasoning, by chaste and classical diction, by the utmost skill, delicacy, and address in the management of the most difficult topics, and by a rare combination of zeal and ability in the cause of his client, with respect to the feelings of all the parties concerned, and a reverence for the rules of law and the austere decorum of a court of justice. It was a speech, in short, which, as a specimen of forensic eloquence, considered with reference to the peculiar difficulties With which the advocate had to contend, was unrivalled by any similar effort in ancient or modern times. The learned gentleman who drew that plea seemed to consider the law of honour as a sort of mystery, known only to a few individuals, deeply skilled in the institutes, codes, and pandects of honour, as if Scotland were not a country distinguished by its martial glory and its high sense of honour. The case from beginning to end was against the lord advocate for his own acts, and for those of his two deputies who had signed the plea to the action against the Sentinel. That paper had been recommended and circulated through Scotland by the learned lord, and the manner in which it had been supported by his two deputies showed the animus of 1369 the proceedings. If any lawyer in that House could say that the plea which he had mentioned could have any other effect than to aggravate the offence, he would give up the whole question. But it showed the furious zeal—he would not use a stronger word—which actuated all the parties (Cheers), and which appeared most strongly in the deputes of the lord advocate. Why, it was asked, decide against 3Ir. Hope and Mr. M'Neil? Why pronounce a censure or condemnation against them? Censure was a large word, but there was no condemnation moved for or sought. The motion called for a committee to inquire into the primâ facie evidence.—The right hon. secretary had said, hat the case of Borthwick was a separate question, which was not comprised in the notice. Now, whether it were comprised in the notice or not, it was a little singular that the right hon. gentleman should not be prepared to answer a case which had excited a greater sensation in Scotland than any thing which had occurred since the Rebellion in 1746. Borthwick had been confined 70 days, under a charge of felony, which was subsequently abandoned. He was indicted a second time for the same offence, of which he must be presumed to be completely innocent; for otherwise the learned lord, shamefully betrayed his trust in not bringing him to trial. Was it not a most suspicious circumstance that a prosecution should be entered into against a partner of the Sentinel, at the very moment that he had disclosed the secrets of the prison house? The learned lord who had recommended the circulation of the Clydesdale Journal, was the very person who prosecuted one of the parties for disclosing the authors of the libels which it contained! It was indisputable that Mr. Borthwick had a right to possess himself of his on n papers; and yet he was prosecuted for a capital felony, for taking those papers out of a desk in the office of the journal of which he was admitted to be a proprietor. He believed there was no example in the history of the law of so atrocious a proceeding. If the House refused to inquire into so gross a case of misconduct on the part of a public officer, he should deeply regret in failing to vindicate the constitution of the country, that he should be deprived of one of the most solid grounds of its defence, namely, that the House of Commons, whatever might be its partiality to, or its confidence in, the government of 1370 the country, was at all times jealously awake to the purity of the administration of justice. The House was called upon that night to determine whether they would frown down that infamous system of private calumny which had overwhelmed the country, or whether they would authorise, establish, and perhaps perpetuate it by refusing to concur in the present motion.
The Marquis of Londonderrysaid, that the heads under which he would consider the subject were; first, the connexion of of his learned friend with the press; 2nd, the oppressive transaction in which Borthwich was concerned; and 3rd, the proposition to call two persons before the committee and to make certain inquiries of them. Now, at what time was such a proceeding proposed? At that period of the session, when such an inquiry could not be gone into, with a view to substantial justice. It was proposed, too; on the eve of a legal prosecution, in which his learned friend would be overhauled as to the proprietorship. It was said that inquiry was all that was proposed; but parliament always sanctioned the principle, that it was no small infliction to be sent to a committee of inquiry above stairs. What was imputed to the learned lord was, not any violation of his official duties, but what he had done as an. individual freeholder of Lanarkshire. It had been assumed that the papers were a mass of private scandal, and what all must join in reprobating. But what had been read to the House he would not pronounce a libel without seeing the context. It could not fail to be remarked, that hon. members opposite never complained of the conduct of the press, until they fancied that some particular person or family connected with them had been libelled. He was informed that the Clydesdale Journal was a paper like the Morning Chronicle, which upon a former occasion the learned gentleman (sir J. Mackintosh) had elevated to such a pitch. He understood it was in general a paper of fair character. What the character of the Sentinel was, he did not know, but it was too much to hold his learned friend eternally responsible, for what might be published in that paper. With respect to the Beacon, it appeared that that paper had been established upon good principles, and had for some time been conducted in a manner that could not be complained of. As soon as it appeared that the paper was impro- 1371 perly conducted, his learned friend took measures to separate himself from it. He could not think tire learned lord was to blame for entering into that bond. He had pledged himself only to support the paper while it was conducted upon the principles laid down in the prospectus. He felt rather startled at the doctrine laid down by those hon. Members who called themselves the exclusive friends of the liberty of the press. The doctrine of the restraint of the press had been no where so strongly advocated in that House as on the Whig benches. He should have no objection to let them manage the press, if he thought they would equally restrict both sides of the question; but they always exhibited a wonderful fondness for leaving one side open, and keeping the other exceedingly close; and no men were more disposed than they were, although they arrogated to themselves the character of the exclusive friends of the liberty of the press, to press into their service as means of coercion towards the press, not only the principles of law, but the forms of parliament. The only construction to be put upon the connexion which the noble and learned lord had with the bond was, that he pledged himself to give 100l. towards the support of a paper to be established upon good principles. In doing this, he was acting upon the principle of combating the press by the press. If the learned gentleman opposite should subscribe to what he conceived to be an excellent work from reading the prospectus, but which when published should appear an abomination in the eyes of all honourable men, would he therefore expose himself to a charge of abetting the iniquity? If he were answered in the negative, then he would say that the learned lord was not blame able for having supported the establishment of a paper which was afterwards perverted from its original good objects. He trusted the House would be of opinion, that the character of the learned lord, throughout the whole of the transactions, stood free from reproach. He thought it would have been more discreet in the learned lord to have kept himself distinct from those transactions. But in the whole of his conduct, nothing could be found to touch his character as a man and a constitutional lawyer. Down to the moment when the present complaint was brought against the learned lord, his conduct in the administration of his office had been the subject of commendation even with the other 1372 side of the House. The noble marquis concluded by declaring, that if he were not the friend but the political opponent of the learned lord, he would lay his hand upon his heart and say, that he could not vote for the motion.
§ Mr. Lockhartconcurred with the noble marquis in thinking that there was nothing in the conduct of the lord advocate which could touch his character as a gentleman; but when he was told that there was nothing to affect him as a constitutional lawyer, he must object to that opinion.
§ After a short reply from Mr. Abercromby, the House divided: Ayes, 95; Noes, 120.
| List of the Minority. | |
| Allen, J. H. | Jervoise, G. P. |
| Althorp, viscount | Kennedy, T. F. |
| Baring, A. | Lamb, hon. G. |
| Baring, H. | Lambton, J. G. |
| Barnard, viscount | Lemon, sir W. |
| Bennet, hon. H. G. | Lloyd, sir Ed. |
| Bernal, R. | Lennard, T. B. |
| Brougham, H. | Lushington, S. |
| Butterworth, J. | Leycester, R. |
| Benett, John | Lockhart, J. J. |
| Bentinck, lord W. | Maberly, J. |
| Buxton, T. F. | Macdonald, J. |
| Calcraft, J. | Mackintosh, sir J. |
| Calcraft, J. H. | Martin J. |
| Calvert, C. | Maxwell J. |
| Cavendish, C. | Milbank, M. |
| Cavendish, H. | Monck, J. B. |
| Coke, T. W. | Mostyn, sir T. |
| Colbourne, N. R. | Newport, sir J. |
| Crompton, S. | Nugent, lord |
| Creevery, T. | Normanby, visc. |
| Calthorpe, hon. F. | Philips, G. jun. |
| Davies, T. H. | Palmer, C. F. |
| Denman, T. | Powlett, hon. W. |
| Dundas, hon. T. | Price, R. |
| Duncannon, visc. | Prittie, hon. F. A. |
| Dennison, W. J. | Robinson, sir G. |
| Ebrington, visc. | Rice, T. S. |
| Ellis, hon. G. A. | Ricardo, D. |
| Fergusson, sir R. C. | Rowley, sir W. |
| Fitzgerald, lord W. | Robarts, G. |
| Fitzroy, lord C. | Robarts, A. |
| Folkestone, viscount | Rumbold, C. |
| Grattan, J. | Russell, lord J. |
| Grenfell, P. | Scarlett, J. |
| Griffith, J. W. | Sefton, earl of |
| Glenorchy, lord | Smith, John |
| Guise, sir W. | Smith, W. |
| Gurney, R. H. | Smith, S. |
| Gaskell, B. | Smith, G. |
| Hamilton, lord A. | Stuart, lord J. |
| Hobhouse, J. C. | Tavistock, marquis of |
| Honywood W. P. | Taylor, M. A. |
| Hume, J. | Tierney, rt. hon. G. |
| Hutchinson, hon. C. H. | Titchfield, marquis |
| James, W. | Tulk, C. |
| Western, C. C. | Wood, alderman |
| Whitbread, S. C. | TELLERS. |
| Williams, J. | J. P. Grant |
| Williams, W. | Abercromby, hon. J. |
| Wilson, sir R. |