§ Mr. Abercromby
said, he was extremely glad that the period had at length arrived when he should be able, not only to redeem the pledge which he had given to that House and to the people of Scotland; but also to comply with the laudable desire expressed by the learned lord opposite, to have a question discussed in which he thought the conduct and character of that learned lord were deeply implicated. After the manner in which he had been goaded to the performance of the task which he had undertaken—after the manner in which he had been calumniated, and, with a perfect conviction of the truth of what he was stating, he would say, officially calumniated in 665 Scotland—if he were now to shrink from the performance of his duty, it might be supposed he did so from unworthy motives. He felt that he owed no apology to the learned lord for bringing forward the question; but, he felt that he did owe some explanation of the circumstances which compelled him to introduce it at so late a period of the session. It was not attributable to any reluctance on his part that the motion with which he intended to conclude had not been made at a much earlier period; but he had been compelled to delay it, in consequence of the tardy production of papers which had been ordered to be laid before the House, and which were necessary to the right understanding of the case, and the vindication of the learned lord opposite. The inquiry into the conduct of the sheriff' of Dublin had also been the means of retarding his motion. Having given this explanation, which he considered necessary, he would proceed to state his case as concisely as possible, upon the authority of the papers before the House.
He begged the House would bear in mind, that in Scotland there were no grand juries. The lord advocate, in virtue of his office, might bring whom he pleased to trial, upon his own authority and responsibility. It was true, there was another course open, by which a private individual might prosecute by getting a "concourse" from the lord advocate; but this was attended with so much expense, delay, and uncertainty, that it was very rarely resorted to. It would not be denied to be most important, that the person possessing such great powers as the lord advocate, should uniformly exercise them without any personal bias, or feelings of political consideration. That personal bias had had no influence upon the learned lord in these transactions, he was quite willing to admit; but, looking at the whole of the case, its origin and progress, and the learned lord's knowledge of both, he could not bring himself to the same conclusion with respect to the influence of political considerations. At the date of these transactions, political party feeling ran very high in Scotland. In his opinion, they had been extended, and very improperly so, to the case out of which the present matter rose. The case was this—a person named William Murray Borthwick had entered into partnership with a person named Alexander. Whilst in partnership, they printed a 666 paper called "The Clydesdale Journal," but only one number of that paper, was published after the partnership, and they then commenced the paper called "The Glasgow Sentinel." Some time after, Borthwick wished to retire from the concern, and a dissolution of partnership took place. The conditions of that dissolution were, that the property in the concern should remain that of Alexander, he paying to Borthwick the sum of 20l. in hand, and giving him three bills for 30l. each, well secured at six, nine, and twelve months. The sum of 20l. was paid to Borthwick, but the other part of the contract was not performed as stipulated; for, instead of the three well-secured bills for 30l. each, at six, nine, and twelve months, Alexander only gave his own note for 30l. at six months, but with held the other two at nine and twelve, months. Upon this Borthwick raised an action before the court of the magistrates of Glasgow, who were fully competent to try the case, and in his petition prayed that Alexander might be directed to fulfil his contract, or that he (Borthwick) might be put in possession of his share in the property, as, he was before the contract for dissolving the partnership was entered into. The case was discussed before the magistrates of Glasgow, not only by the printed papers, but by solemn argument. It began in Dec. 1821, and on the 14th Feb. following, a solemn and final decision was made by the court, which was, that Alexander should perform his contract within six days from that time, or that if he did not, Borthwick should be put in possession of his property as before. Here, then, they saw Borthwick in possession of a. decree of court in his favour, awarding that he should be restored to the possession of his property, provided Alexander did not fulfil his contract within six days. The six days elapse, the contract is not made good, nor is he put into possession. Now he would ask any man of common sense, whether the attempt of a person so circumstanced to regain his property, under the authority of a judgment of a court of law, was a fair ground on which to indict him for a felony? Was this a case which it was expected a judge would try or a jury convict upon? But, if he wanted a witness to show the absence of anything like a felonious intention on the part of Borthwick, in his subsequent attempt to get possession of his property, he would 667 select the testimony of Alexander himself, who, in his defence before the magistrates to the first action, slated, "that the defender, so far from refusing to implement the agreement, has already, and at some hazard, in part done so; and he has offered, and is quite ready to perform his part of the rest of it, when he receives the assignation to which he is entitled, both by the of the agreement, and at common law. The defender cannot be bound to pay the pursuer's share in a concern, till he receives a valid assignment to that share." The court, however, decided that the giving the bills for the assignment of the share, should be simul et semel. This was not the argument of Alexander's counsel, it was his own sworn statement in the case before the magistrates, and afterwards in the accusation against Borthwick for theft.
He felt it necessary to call the attention of the House particularly to these minute parts of the case, because the foundation of his case was, that ab origine, there was not a particle of evidence to show a mala fides on the part of Borthwick, and of course no ground for the charge of felony. But, suppose the magistrates of Glasgow had mistaken the law in their decision in Borthwick's favour, still the ground of a charge of felony could not exist, because, to support such a charge, some felonious intention must be proved. He had now stated the grounds on which Borthwick had to proceed. He had already mentioned, that the decision in Borthwick's favour was dated Feb. 14th, and that on the 2lst he had authority to take possession of his property, if in the interim the terms of the contract were not fulfilled. He did not, however, take possession on that day. In the interim a correspondence took place between the agents of Borthwick and Alexander, the former stating that Borthwick was come from Hamilton to Glasgow, for the purpose of receiving the bills on good security—and executing the assignation, and adding, that unless the settlement was effected, Borthwick must of course forthwith take the alternative of resuming possession. To this Alexander's agents replied, that it was not in Alexander's power to conclude the arrangement that day, but that he would be ready on the ensuing Saturday; and they added, that if this were not complied with, they might be allowed an opportunity of stating to a professional gentleman their reasons 668 for concluding that the judgment of the court did not become final in seven, days. Here was one of those make-weights in law, to which persons circumstanced as Alexander was, had often recourse; but it should be remembered, that in this neither he nor his agents disputed the right of Borthwick to enter into possession. He fully admitted it in the first instance, and only prayed for the indulgence of some further time; and it was only on the supposition that that indulgence might be refused, that any mention was made of a technical objection, as to the time when the decision of the court could be enforced. The agreement not being effected as was expected, Borthwick went on the premises on the 1st of March, and took possession. He went in the morning, and remained the whole of the day; and 'on retiring at night he took with him the key of his desk and room, and exercised every right of ownership to which the decree of the court had restored him. When Alexander found that Borthwick had taken possession, he went to a person at Hamilton, to whom Borthwick had formerly been indebted, and persuaded him to arrest him. He was accordingly arrested on the night, of the 1st of March, by an officer from Hamilton, on an old caption, and for a debt which it was alleged by Borthwick had been paid before. If it were material to the case, he could prove, beyond the shadow of a doubt, that this was a fictitious debt, got up for the purpose of defeating the ends of justice, by preventing Borthwick from continuing in possession. Borthwick was lodged in gaol on the 2nd, and it was thought that he could not get out except by a cessio bonorum. He was kept in custody until the 10th, when the debt was paid, and he was discharged. What was his conduct afterwards? This man, who was to be indicted for a felony, went, after having given notice of his intention, and by the advice of two professional men, to the office of the "Glasgow Sentinel." With the felonious intention subsequently imputed to him, one might suppose that he had gone in the dead of night to effect his purpose. No such thing. He went at the hour of eight in the morning. He there found the boy employed in sweeping out the office. His first object was, to attempt to unlock those places of which he had, on the evening of the 1st, taken away the keys. He found, however that his keys would not do, for that the locks had been 669 changed in his absence. What, then, was conduct of this thief? He sent one of the two witnesses whom he had taken to mark what passed, for a smith to open the doors—a most strange proceeding for a thief—in the presence of all who were on the premises. Before the arrival of the smith, however, he found a key with which he succeeded in opening the locks. He then took away some papers to which he conceived he had a right. This occupied till nine in the morning. If it was said, that this was done with force and violence, and that Alexander had no power to prevent it. Surely, it could not be supposed that in the open day, he could, in a populous city, have failed to procure some assistance. The fact was, there was nothing whatever in the transaction, from first to last, which had any appearance of a theft. It was a difference between two parties. It might, if any one pleased so to term it, be called a riot or a disturbance between those individuals; but there was nothing whatever in it which approached to a felony.—Having now got possession of the papers, what did the alleged thief do? He took a step, one of the last which a man conscious of theft would wittingly take. He went before the magistrates of Glasgow—those who bad made the decision in his favour—and complained to them of the obstructions he had met within carrying their decree into effect. On the next day, Alexander made a charge against Borthwick for the theft, took a warrant out against him, and had him arrested. He was then brought before the magistrates, who, after hearing what the charge was, and the answer of Borthwick, dismissed it, as not having the slightest foundation, and 'allowed the accused to go at large without even holding him to bail.
§ Mr. Abercromby
said, this was not mentioned in the printed minutes; but it was a fact too notorious to admit of the slightest doubt. That it was not in the papers before the House, was in some degree his fault; but he had not thought it necessary to select it. However, he presumed no person would deny that the fact was so. Would the learned lord, or the noble lord, deny that the charge of theft was made against Borthwick—that a warrant was issued on that charge—and that, fur- 670 ther than the hearing of the parties be fore the magistrates, no proceedings took, place on that warrant?
§ Mr. Abercromby
said, he could not have thought it would have been necessary for him to reply to any objection of this kind. It was clear that Borthwick was before the magistrates, and that, thinking the charge without foundation, he was dismissed, without even having been held to bail. It was clear that he left Glasgow and went to Edinburgh soon after. This happened after the 12th of March. On the 17th, it appeared that a "concourse" was obtained from Mr. Hope, for prosecuting Borthwick at the instance of Alexander. What he sought to establish here, was what was apparent in all the proceedings; namely, that Mr. Hope must have known of the proceedings which had taken place before the magistrates at Glasgow. And here he thought it was that the conduct of the learned lord opposite was blameable, in having allowed the subsequent proceedings: for he must have known the circumstances which had passed at Glasgow, or have allowed the subsequent prosecution to go on without any inquiry into the circumstances out of which it arose. In either case he was guilty of as great a neglect of his duty, as could well be imagined of a person executing his office; for the simple question was, did Borthwick act under the authority of the decree of Glasgow or not? Now, if he did—and that he did he believed could not be denied—what greater neglect of duty could there be, than to prosecute him afterwards for his conduct on that occasion as for a felony?
He now came to the case as placed before Mr. Hope. That gentleman gave it as his opinion, that "having read the papers transmitted by the procurator fiscal of Edinburgh, relative to a precognition commenced at Glasgow against a person of the name of Borthwick, we entertain no doubt whatever that the investigation must be continued and completed in Edinburgh, on the application of the party stating himself to be injured. The petition contains a direct allegation, that Borthwick broke open a private desk, of Alexander's, and abstracted private papers belonging to the latter. This is a charge which, if the private party 671 applies, must be taken up at the public instance. At the same time, as the investigation commenced at Glasgow merely with the concourse of the procurator fiscal, it is better that the precognition here should continue in the same shape in which it began, unless difficulties should be experienced which require the interposition of the procurator fiscal at the public instance. At present, the only matter for consideration is, the information of the complainer, and the evidence already taken. Of the necessity for completing the inquiry there can be no doubt. What defence the accused may be able to make, to take off the effect of the charge, is another point. And whether the case is one which is competent before a criminal court, or to be tried at the public instance, are points which cannot well be understood until the precognition is completed, If the precognition points at other persons than Borthwick, as having carried away the papers, of course the charge is more relevant." He (Mr. Abercromby) did not quarrel with Mr. Hope's opinion on the case; but after this opinion given on it, it was impossible to deny that he was aware of the proceedings at Glasgow. The last sentence of the opinion surprised him not a little. He was utterly at a loss to understand how other persons than Borthwick," being implicated in carrying away the papers, could, "of course," make the charge "more relevant." Suppose a man had committed murder, could his having associates in the crime make his own guilt more or less? How it could do so in the case of theft he was at a loss to conjecture. By the 29th of March it appeared that other papers had been laid before Mr. Hope, and on that he wrote to the Crown agent to this effect:—"In consequence of the nature of a precognition taken at Glasgow, at the instance of a private party, with the concourse of the procurator fiscal, against a party of the name of Borthwick, which has been sent to me to read, I beg that you will intimate to Mr. Simpson, the procurator fiscal at Glasgow, that it is the intention at present of the Crown counsel, to take up the case at the public instance, and to direct them to proceed in completing the investigation without any delay, and immediately to open and inventory the papers at Glasgow in presence of the witnesses. Borthwick must be sent for in such a way as to prevent his escape and to hold him to 672 bail. I wish not a moment order that the case may be in time for the circuit." This was a most material point for the consideration of the house. He (Mr. A.) had read the papers which had been submitted to Mr. Hope in the first instance, and also those to which he alluded in his note of the 29th, and he did not see any new matter which could warrant his taking up the case in a more serious light, or render him anxious to hurry it on for trial.
He now came to the first of April, the interval which had elapsed from the first proceedings till the melancholy death of sir A. Boswell took place. On the fifth of April, the learned lord was made acquainted with the transactions officially; and for his conduct subsequently to that he considered him responsible to the house. Indeed, he alone could be properly said to be responsible to parliament' on the occasion, as he had the appointment of his deputes, and might remove them at will. In the last session, he had moved for a committee to take into consideration the conduct of the learned lord and his advocates-depute, though at that time he was not without some doubts whether the individuals acting as the learned lord's deputes came properly within the jurisdiction of parliament on that occasion. He was in this difficulty—that the learned lord was absent from Edinburgh when those proceedings commenced. However, the learned lord became officially acquainted with them on the 5th of April. If he was not satisfied that he knew, and had subsequently sanctioned them, he should have felt some hesitation in bringing his conduct before the house; but, after what passed subsequently to the period when the learned lord became acquainted with the facts, he could not have thought himself justified, if he had not called upon the house to pronounce an opinion on his conduct, and on his alone. It was true that Mr. Hope avowed, in a very manly manner, the share which he had taken in the affair: but, let him stand or fall in public estimation by his conduct; he would call for no opinion of the house upon it. Under all the circumstances, and with the best consideration he could give it, he felt justified in calling for the opinion of the house, upon the conduct of the lord advocate only. The learned lord, as he had already observed, became acquainted with the transaction on the 5th of April. On the 3rd of that 673 month, Borthwick was arrested at Dundee, on the alleged ground that informations were laid that he was about to proceed to America. The papers before the house were, he was sorry to perceive, quite silent as to the party by whom such information was given. He should like much to know by whom that information was given; for he would undertake to say that it was utterly destitute of any foundation in fact. On being arrested, Borthwick was conveyed in irons to Edinburgh gaol, and on the way was treated with a severity wholly uncalled for. He complained of this on a former occasion; and since then it appeared, from the papers before the house, that the facts he stated were not denied, but the parties concerned asserted, that they used no other coercion than that which was necessary for the security of the prisoner. On his arrival at Edinburgh bail was offered; but the prisoner was informed, that by the directions of Mr. Hope, he could not be admitted to bail, nor be allowed any communication with his counsel or agents, until he had been examined. Now, he would ask the house, whether there were any circumstances in this case which justified such severity?
If he had been accused of murder or robbery, what more severe course could have been adopted, than that which had been pursued towards this unfortunate man? This was on the 5th of April, and he was given to understand that his trial was fixed to take place at Glasgow on the 24th. The 24th arrived, and what did the learned lord do? He deserted the diet pro loco et tempore, and of course the trial was not proceeded with. He did not object to the learned lord's adopting that course, because undoubtedly he had the right so to do, if he pleased. It was then intimated to the prisoner by Mr. Hope, that he might be admitted to bail, und that small bail would be taken; but it was the opinion of his counsel, that as he had been arrested by the authority of the lord advocate, and as the prosecutor had only deserted the diet pro hac vice, and it was uncertain whether he might not proceed at a future period, it would be more advisable for him not to give bail, but to remain in prison and "run his letters," as it was termed. Borthwick was therefore re-committed to prison.
He now came to the date of the 4th of May:—a most important date in these transactions. In a letter which Mr. Hope 674 had written to him (Mr. Abercromby) on the subject, he said, "on the 4th of May, not many days after the Glasgow circuit terminated, Mr. Alexander intimated to the Crown agent his intention to prosecute Borthwick on his own instance as private prosecutor. From that time the prosecution against Borthwick was at the instance of the private party alone, and was no longer under the control, direction, or management of the public prosecutor." On the same date, the agent of Mr. Alexander wrote to the Crown agent to the following effect:—"I am now desired by my client, Mr. Alexander, to apply to you for the purpose of being informed whether it is the intention of the lord advocate to bring Borthwick to trial at his own instance, as should he not do so, Mr. Alexander wishes to indict him at his own instance, without delay." The words "I am now desired to say" had evidently a reference to something which had previously passed between the parties, but upon which the papers before the house were silent. The answer to this note was dated the 6th of May, and the Crown agent stated in it—"I have received yours Of the 4th, and it is riot the intention of his majesty's advocate to bring W. M. Borthwick to trial." Here, then, there could be no doubt that the public prosecutor had abandoned all further prosecution. How, then, did it happen that he was detained in prison by him after that date? What he wished to know from the learned lord was this—did he direct that Borthwick should be discharged? Did he omit to direct his discharge, under the supposition that it would follow in the natural course? Did he take any pains to ascertain, in point of fact, whether Borthwick had been discharged? Din was really the heaviest charge against the learned lord, that from the 4th of May, when the counsel for the Crown abandoned the prosecution, Borthwick was kept in prison till the 4th of June, at the instance of the lord advocate. On the 4th of June he was, in point of fact, discharged, at the instance of the lord advocate, and recommitted at the instance of Alexander. Let it not he said that this change was immaterial—there was a substantial difference. The lord advocate, excepting to the house; was irresponsible; and if Borthwick wished to bring an action for wrongous imprisonment, he could only do so against Alexander; and by Alexander he was only 675 confined from the 4th till the 12th of June. It was important that these facts should be observed:—On the 23d of May, Niven, the agent of Alexander, took the preliminary steps. On the 25th of May, Borthwick was served with a notice of trial at the instance of Alexander; and, on that same day, Mr. Stuart was also served with his notice of trial. In point of fact, there existed this coincidence—that Borthwick for the first time learnt that he was prosecuted at the instance of Alexander on the same day that notice of trial was served upon Mr. Stuart. On the 10th of June, Mr. Stuart was brought to trial; and at that trial Alexander instructed counsel to object to the witnesses remaining in court, because they were to be examined on the subsequent trial of Borthwick. Yet, in less than forty-eight hours after Mr. Stuart had been acquitted, Borthwick was discharged and never was brought to trial at all. No opportunity had been allowed him to prove his innocence. On the contrary, from the 29th of May, every thing was done that could needlessly aggravate what he had to endure.
Such were the facts of Borthwick's case: but he could not avoid asserting, what unquestionably gave him pain, that there was an intimate connexion between the trial of Mr. Stuart and the proceedings against Borthwick. He might be told that it was impossible to show this connexion, because Mr. Hope had been always anxious that Borthwick should be tried at Glasgow. It was to be remembered, that one of Borthwick's motives for obtaining possession of the papers was, that actions had been brought against him by various parties libelled, and his only means of defence or conciliation was, to apprise those parties of the authors of the libels. Mr. Stuart was no doubt at Glasgow when Borthwick resumed possession, and no doubt also the important document, producing the unfortunate event that had attended these transactions, came then into his possession. In the course of the discussions last year, nothing had made so deep an impression upon the public mind as the conviction that Mr. Stuart had been guilty of a most unwarrantable and unjustifiable act in gaining possession of those papers. If any thing could have been raised to the prejudice of Mr. Stuart on his trial, no doubt it would have been brought forward; and it was clear, from the very terms of 676 the indictment against Mr. Stuart that it was meant to connect his case with chat of Borthwick. Statements were introduced into the indictment merely for this purpose, and which had nothing in the world to do with the charge against Mr. Stuart. No man could doubt that if the proceeding against Borthwick had been attended with success, it would most deeply have injured Mr. Stuart. It was plain that in the minds of the prosecutors of both there was an intimate connexion. Under such circumstances, it was especially incumbent upon the learned lord to show that he had acted most carefully and deliberately, with a determination not only not to oppress an individual, but not to turn the circumstance of his confinement to the prejudice of Mr. Stuart. It was impossible to point out any course that could more effectually produce that impression, than the course that had been pursued; and the learned lord was the most unfortunate man in the world, if all these coincidences had happened without design. The whole of this proceeding was fraught with infinite danger to the personal liberty of the people of Scotland; and if such things were allowed to pass without the animadversion of Parliament, the case was deplorable indeed. He saw on the other side of the house, a number of hon. gentlemen who had recently taken an active part in the proceedings against the attorney-general for Ireland; but, could the two cases be compared? Let the facts of the rioters of Dublin be exaggerated to any extent; let the whole of the strongest accusation against the attorney-general for Ireland be credited—still, by an hundred degrees, it would fall short of the case now established against the lord advocate of Scotland. He trusted that those gentlemen who had shewn so much anxiety to protect the personal liberty of the people of Ireland, would shew an equal desire to protect the personal liberty of the people of Scotland. He had, on a former occasion, characterized the conduct of the lord advocate as unjust and oppressive. He said so still; and unless his opinion of that conduct were materially and substantially altered by any new circumstances which might be stated by the learned lord, he should call upon the House to confirm it. So thinking, he should conclude with moving, "That the conduct and proceedings of the Lord Advocate of Scotland in the case of William Murray Borthwick, late printer of Hamilton, were unjust and oppressive."
The Lord Advocate
commenced by assuring the house, that the hon. and learned member who had just sat down could not feel greater satisfaction than himself, that the moment had arrived when this question was to be discussed and to be decided. Whatever had been its cause, certain it was that the delay that had already occurred had been most prejudicial to himself Nevertheless, he did not complain of it; he only denied that he had been in any way instrumental in producing it. No man had been more anxious than himself that the whole question should be brought forward as early as possible. He had been much surprised that the papers were not laid upon the table before the end of the last session; and if the hon. and learned gentleman, in what he had said on this point, meant to impute that he had been the occasion of the postponement, it was an error. He had written up from Scotland to the office of the Secretary of State, for an explanation of the fact; and he pad found that on the last day of the last session, the documents would have been brought up, but for the sudden and somewhat unexpected arrival of the usher of the black rod. In reference to the question before the house, he begged its indulgence while he was compelled logo over facts which he had before stated, and to repeat arguments which he had already urged. Of the manner in which the subject was brought forward last year, he had complained at the time. He complained now, and he should never cease to complain. For he had laboured under disadvantages of all kinds, and had not then the information now before the house, and on which he might securely rest his defence. He had not expected that the case of Borthwick would have been brought forward. He had, indeed, at that time one way of escaping from the difficulty he might have declared a fact subsequently avowed by his learned deputy, that he (the lord advocate) had given an opinion against the prosecution. The whole blame would, however, thus have rested on his learned deputy; but as he knew that he (the lord advocate) was officially responsible for the acts of his deputy; as he scorned not to sustain his share of responsibility; and as he was certain that the acts of his learned deputy would bear the strictest inquiry, he had not introduced that important and decisive circumstance. It had been declared to the house and to the country in the 678 celebrated Letter which his learned deputy had published. He had almost hoped that when this fact came to be known, it would have led to a different line of conduct on the part of the hon. and learned gentleman opposite. He had thought that the charge of "perverting the course of justice for bad purposes" would have been abandoned; as it was clear that between men entertaining different opinions on the subject, there could be no conspiracy. Whatever was the real object of the motion now introduced, it might be thought out of doors, that its purpose was not pub he justice, but to crush the rising fame, and lo detract from the distinguished talents, of his hon. and learned deputy. [Hear! from the Opposition benches.] He gathered from that cheer, that such an imputation was unfounded. It might be so, but he doubted whether the people out of doors would be charitable enough to put the best interpretation upon the motive with which this question was now, for the second time, brought forward. The hon. and learned gentleman had last year insisted that "justice had been perverted for bad purposes." The whole of the evidence, every document, all the correspondence, private or official, was now up on the table, and the house would be able to decide whether there was any foundation for the charge.
Before he proceeded to notice the particular facts of the case, he wished to say a tow words upon the powers of his office. No man who knew him would imagine that he was disposed to abandon any of them. Such powers as he possessed, he would assert and maintain. It had been his business, and that of others, to investigate this matter; and if hereafter any hon. gentleman asserted that he (the. lord advocate) possessed greater powers than die now stated, he should call upon, that hon. gentleman to quote his authority. He asserted, in the first place, that the lord advocate possessed no legal powers but as a public prosecutor. He was indeed a justice of peace of all the counties, of Scotland, because his name was inserted in every commission; but he could do no more than any other justice of the peace could do. A learned predecessor, he believed, had laid down this point more broadly than he was disposed to do. It was unquestionably true, that magistrates applied to the lord advocate for advice; but it was optional in them to ask it, and in the lord advocate to give it; and a ma- 679 gistrate was not bound to act upon it. He might, if he pleased, resort to any oilier legal authority that he preferred, since he alone was responsible. Even as a public prosecutor, the powers of the lord advocate had been exaggerated. Originally prosecutions in Scotland were commenced by private parties only; and it was not until the year 1587, that an act passed giving him that power. Still this power was not exercised by him until long afterwards; and it was only of very late years that private prosecutions had ceased. They had ceased because reliance was placed upon the moderate and prudent course pursued in general by the lord advocate in matters of this kind. It was true that in Scotland there were no grand juries except in the single case of high treason. No lord advocate, however, would venture to institute a prosecution in which the circumstances did not fully justify him in bringing it forward; and on the other, hand, he was not aware of a single instance in which the lord advocate had declined to prosecute, where the private party had subsequently succeeded. The general result of prosecutions in Scotland proved the moderation and discretion with which the powers of the lord advocate were exercised. Out of 409 persons tried in a given time, only 49 had been acquitted. In an average number of years, 1,409 persons had been capitally convicted in England; and, taking the population of Scotland as one-sixth of that of England, about 40 capital convictions might be expected in Scotland in the same time, whereas the number amounted to only 18. The number of persons transported in England during the same time amounted to 2,889, one-sixth of which would be 480; but the number in Scotland amounted to 180.
The practice of carrying on prosecutions by the public prosecutor having of late years exclusively prevailed, private parties had acquired a right, upon receiving any injury, to call upon the lord advocate to prosecute; and, in many cases, the ends of justice could not be obtained without the intervention of the public prosecutor; because, by the law of Scotland, the party injured could not, as in this country, give evidence in a case where he was himself the prosecutor. Three deputy-advocates, one of whom, at the period in question was Mr. Hope, the present solicitor-general, were attached to the lord-advocate. The appointment 680 of that gentleman to the office of deputy-advocate was no merit of his (the lord advocate's). He envied his predecessor the opportunity of conferring that office upon him. The deputies went to the three circuits in Scotland, and it was at one of these circuits that Borthwick's; case first came before Mr. Hope, in consequence of an application from the procurator fiscal. It was ordered by the; magistrates of Glasgow, that the papers taken from Alexander should be restored; but the order was disobeyed renewed almost indefinitely, but still disobeyed. It turned out, in fact, that the whole of the papers had been carried off to Edinburgh by Mr. Stuart and another gentleman With regard to the committal of Berth-wick, he must observe that a magistrate in Scotland only did what he was asked; and if he were not asked to commit Borthwick, he would of course not commit him [Hear, hear!]. He defied; contradiction upon this point. The parties finding that the papers had been carried to Edinburgh, an inquiry was instituted as to the persons who had carried them away; and this having been ascertained, the procurator fiscal was doubtful about taking up the prosecution at the public instance. He therefore laid the case before Mr. Hope, in order to obtain his opinion. The letter upon which the Crown agent commenced proceedings against Borthwick was from Mr. Scott the procurator fiscal of Edinburgh, and would be found in page 66 of the printed papers. In that letter the examinations, of various persons were inclosed; among others, the declaration of Borthwick himself, and the general result of those examinations was, that Borthwick had gone to Alexander's office, broken open his desks, and carried away a quantity of private documents. Certainly, the declaration of Borthwick himself had at once set up a defence nearly similar to that made for him by the hon. and learned member opposite; but it was not usual, the House would be aware, to give implicit belief to the statements of accused parties; and how far Borthwick was entitled to especial credit would very shortly be shown; Borthwick's statements were proved by documents to be upon four different points untrue. Borthwick alleged, that when; he took possession of the papers at Alexander's house, he did so with the sanction and approval of a magistrate. This was a direct falsehood; for he had been told 681 by the magistrate, that he must not take possession of them. He said, that lie had found the desks at which he was accustomed to write, open. On the contrary, he had found them shut, and, finding them shut, he had forced them open. In a third place, he declared that, on taking the papers from Alexander's, he had folded them up, and sent them to the office of his agent. Now, the fact was, that he had carried them away to the Tontine inn, and had there at once delivered them to Mr. Stuart. And still further, he asserted that he had carried the papers from Alexander's house, because Alexander's brother bad opposed his examining them there; when, in truth, at the time he had sent the papers out of the office there had been no soul to oppose him, or anything but a boy under twelve years of age. Upon these facts it was, that, long before the duel took place, Mr. Hope had given his opinion, that the case must be taken up by the public prosecutor. And let the House look at the act with which Borthwick was charged, and at the circumstances under which it had been committed. It had been done not merely without the authority of any magistrate, but contrary to a magistrate's direction. Borthwick had been irregularly liberated from prison on the Sunday (the papers, being served on the Monday) by a fraud put upon Mr. Reddie; it being stated to that gentleman, that he was to be a witness on the Monday on some trial pending. As soon as Borthwick left the prison, he had gone away to the Tontine tavern, where the getting of the papers and the use of picklocks had been mentioned in the course of the night; and on the next morning he had proceeded with others to Alexander's house, taking from thence the papers in question, and opening the iron safe by the means of a picklock, after he had sent for a smith to break it up.
Now, all these circumstances were important to be stated, because they showed Borthwick's crime to be the result of a concerted plan. [Cheers from the Opposition.] He understood what those cheers meant. It was meant to be argued, that no crime had been committed; but he should insist, that theft was distinctly made out. Borthwick challenged the papers which he had taken to be his own, or at least to have some interest in them, and treated his visit to Alexander's house as a mere resuming possession of his rights. But was the act like that of a man resum- 682 ing possession of any partnership right supposing the papers not to have been the exclusive property of Mr. Alexander? If effects belonged to a company it was not competent for an individual of that company to seize upon and carry them away. Mr. Hope stood for his defence, not upon the law of England, but upon the law of Scotland. If Borthwick's act was a theft according to the law of Scotland, then Mr. Hope was justified. That the stealing of papers might amount to a felony, there could be no doubt; persons, indeed, had suffered capitally for the' offence; and he said that the papers in question (many of them private letters) had been feloniously taken away from Mr. Alexander, their true owner. His whole case, he repeated, was to show that Mr. Hope had been justified in considering the matter as fit to go to a jury. It would be recollected that in the first instance, Borthwick might have been bailed if he would have surrendered—he chose to abscond. Borthwick complained—and that complaint bad formed a considerable feature in the charge brought forward by the hon. and learned member last session—of his having been carried to Edinburgh instead of being lodged in gaol at Dundee. Now, Borthwick had been carried to Edinburgh [here the lord advocate read a letter vouching the fact] at his own personal request, and under no circumstances of undue inconvenience or severity. Again it was set up as a great hardship endured by Borthwick, that he had not been allowed to see his agent until eight and forty hours after his going to prison. The fact was, that, by the law of Scotland, no prisoner was allowed to see his agent until after his examination; and it had been necessary to defer the examination of Borthwick in Edinburgh, until a copy of his first declaration was obtained from Glasgow. That there had been any delay in the proceedings for bringing Borthwick to trial, he distinctly denied. So far from delay having been the object, Borthwick had only been examined on the 5th of April; and his indictment, with list of witnesses, had been drawn and served upon him on the 6th. The question might then be asked, why had not Borthwick been tried? The hon. and learned gentleman had said that it was for him (the lord advocate) to bring evidence with respect to the further proceedings. He was of a different opinion. The evidence as to those proceedings had been moved for in 683 the last session; and its production had not been resisted by him, but by an hon. secretary of state, who had thought such production irregular. He had certainly-given an opinion Upon the matter differing from that of Mr. Hope; but it was necessary for the House to know the circumstances under which that opinion had been formed. He had received in London, on the 5th of April 1822, the declarations and examinations printed in page 66. containing the allegation on the part of Borthwick himself, that he had acted, in taking the papers, under the sanction of a magistrate; and not containing the letter of Mr. Simson, the fiscal (which did not reach Edinburgh until the 3rd of April, after the papers received by him were sent off)—that letter from Mr. Simson, which declared Borthwick's statement to be untrue. Now, looking at the case as stated by Borthwick, he (the lord advocate) had certainly thought it not a case desirable to be sent to trial. When Mr. Hope began the investigation, the duel had not 'occurred. Though it became desirable not to prejudice the trial of Mr. Stuart, still there was nothing in those proceedings which could induce Mr. Hope to alter the course which he had before taken. On a review of all the papers, he did feel that Mr. Hope was right, though his instructions were of an opposite tendency at the time. He explained the remedy which Borthwick might have had by an action for false imprisonment. He was of opinion that no sufficient grounds were laid for the motion. If Borthwick had suffered more than he ought, in all probability it was less than he would have suffered had he been able to make his escape, and had he been living an outcast from his country ever since. That this would have been the case was manifest; because the ship in which he was to have embarked actually sailed from Dundee a few days after. He was quite ready to take upon himself the responsibility which might be supposed to attach to Mr. Hope. For his own part, he felt that his conduct needed no defence. When he took office he found Scotland in a state of considerable ferment. There had been more political crimes tried in his administration, than in that of any of his predecessors. In no trial had they failed of convictions, either by verdict or confession of the offenders; He left the case with the justice of the House. He had acted upon pure and conscientious motives. If 684 the same circumstances were again to occur, again he would take the same line of conduct. He had now said as much as he found necessary for his justification. If the house thought good, he would, retire till the end of the discussion. [Cries of "Stay, stay," from the Opposition benches, in which the learned; lord acquiesced, and sat down.]
§ Mr. J. P. Grant
said, he rose with considerable embarrassment, because he was called to decide upon a case as a judge would be in a court of justice, after hearing but one side. His hon. and learned friend had substantiated a strong case of accusation to which there was no defence. The learned lord had totally passed by, or mistaken, the nature of the accusation. He had talked all along in the plural number. He seemed to think that Mr. Hope was concerned with him, as in a sort of partnership for the administration of justice. Whereas, Mr. Hope was, with respect to this investigation by the House, nobody. The House could know nothing of his responsibility; he was not even an officer of the Crown, he was only a deputy to the earned lord He (Mr. J. P. Grant) knew of no power possessed by the lord advocate to put parties upon their trial for high crimes, which he could transfer to a deputy. He must do that part of his duties in his own capacity—according to the directions of his own mind—on his own view of each particular case. He might depute the conduct of the trials, or appoint persons to assist him in gathering and arranging the facts; but to him alone did the country look for the decision. The learned lord had said, that the powers of his office had been much exaggerated. His powers were, however, enormous, and there was no responsibility attached to them but to parliament. The learned lord would not say that he was answerable to any other tribunal. He had talked of an action for wrongous imprisonment; but the action had been brought, and the only remedy was that the court adjudged that the learned lord should produce his private informer who was to take the place of defendant. Now the learned lord was not only officially, but morally and really responsible foe all that had taken place on this occasion. The learned lord admitted, that the instructions to his deputy were, that there was no ground for the prosecution. This should have placed the prisoner in the same condition as he would have been 685 placed in England after a bill ignored. He ought not to have been subject to any further proceedings. But the deputy chose to send a remonstrance, forsooth. He presumed, to withhold obedience to the decision of the learned lord, whose responsibility and character were alone at stake. He had actually kept the man in prison, until he should find whether the arguments he had to bring against him Would riot have the effect of convincing the learned lord. Not only this: he had taken Borthwick to Glasgow, and prepared measures to put him on his trial, against the instructions which he had received. The letter of the learned lord again determined that there was no case for trial. Again, after this second determination, the deputy had put in a petition before the magistrates, stating, that in his opinion the lord advocate could still order a prosecution; and again he succeeded in incarcerating the man. And, after all, the learned lord for the third time determined, that there was no case for a prosecution. This was upon the learned lord's own she wing. What would any man in that House say to so monstrous and oppressive an abuse of authority by his deputy? The learned lord had left the House no alternative, but to visit on his head the justice which the law demanded. He agreed with the learned lord that the question was, whether justice had been perverted to bad purposes? That justice had been perverted, the learned lord himself admitted. By his own allegation of the facts, the purposes could not be otherwise than bad. The learned lord would have it that a case of theft had been made out sufficiently strong to justify Mr. Hope. Now, he defied any lawyer in that House to say that any thing like a case of felony had been made out. Borthwick had taken possession of what he deemed to be his own property. The taking was of the very same kind by which actions of trespass were brought to issue in this country. The whole proceeding originated in a dispute about property between two partners. The learned lord talked of a theft committed by a company. What did he mean? Was there over such a thing heard of as a partner robbing another partner? He remembered a trial, indeed, of a woman for stealing the goods of her husband: but there was no precedent of such a theft as that conjectured by the learned lord. He thought it was quite impossible for the House to pass over the 686 case so clearly made out by his hon. and learned friend.
§ Mr. Home Drummond
said, he had never heard a more singular attack than this, for a grave accusation had, been made against the lord advocate, that he had not performed all the numerous duties of his office in person. Now, bethought it would be clear to any one who knew the multifarious duties of the learned lord, that it was impossible for him to deliver his opinion on every case. The learned member was a friend to the liberty of the person; but did he forget when he required the opinion of the lord; advocate on every case, that the effect would be to imprison men for a, longer time than was necessary, in order to obtain that opinion? Very few cases required much legal learning or experienced; but when any such did occur, the solicitor-general acted for the lord advocate, when that officer was absent. As to the charge of demanding excessive bail, it was known that moderate bail had been required but had not been put in, this party, for some reason or other best known to himself, declining to take advantage of it. The lord advocate had been accused of deserting the Diet pro loco et tempore, and some gentlemen, seemed; to have mistaken that for an abandonment; of the proceedings, when in fact it only meant delaying the time of trial, and such, delay would be granted on the motion of any private individual in a similar case. It had been said, that the interlocutor, was a warrant justifying Borthwick. In entering and seizing the property; but this was a mistake, for an interlocutor was only a preliminary step to a warrant, and. was merely an abstract finding of a right, in law, on which a warrant would subsequently issue. It should be remembered, that throughout the whole of the transaction, Borthwick could not had acted ignorantly, for he had received the advice of no less than five legal gentlemen. What had he done on gaining this interlocutor? Had he acted as a partner when he returned to the house? No., He had acted injuriously to the interests of those whom he called his partners; for he had stolen their property after breaking, open their desks, and from the sale of that property had gained the sum of 50l. which he had appropriated to the payment of his own private debts. He had carried off the property of Mr. Alexander; and could any member give such 687 conduct any other appellation than that of theft? Gentlemen had spoken of felony and misdemeanor, and had used these terms, so familiar in the law of England. How, he wished the House to understand that the law of Scotland knew of no such technical distinctions, but classed both the offences under the general name of crime. The bad faith of Borthwick was evident throughout the whole of the transaction. In order to get out of gaol he had sent Macgregor, an agent of his, and a practiser of the law in Glasgow, to the proper magistrate, who had represented that he (Borthwick) was a necessary witness in a civil cause to be tried on the following day. What would gentlemen say to attorneys or counsel in this country applying privately to a judge in such an affair? And yet this had been done by Borthwick, and the consequence was that the magistrate believed the representation, and liberated him. In short, the whole transaction had begun, continued, and ended and had been a disgrace to; all the parties concerned in it.
said, he was surprised at the conclusion to which the hon. member who spoke last seemed to have arrived. He certainly did not wish to overload the lord advocate with official duties; but he thought that Scotland had a right to demand, if not his opinion on every case, at least that he should exercise some discretion on matters passing through his office. Scotland was not to be told, because the characters of member of parliament and lord advocate were united in one person, that the duties of one should be unperformed, while the learned lord discharged those of the other. If it was impossible for him to fulfil the functions of both, he should return to Scotland, and another person should fill his situation in that House, and thus leave him at liberty to perform those duties so requisite for the proper administration of justice in Scotland. It had been stated by the hon. member opposite, that low bail had been offered. But, supposing this to be true, what did it prove? Why, that the law had not been properly administered; for, by the law of Scotland, the offence with which Borthwick was charged was not bailable. The hon. member had stated the conduct of Borthwick to have been highly criminal: and yet the lord advocate himself had stated, that it was not a fit case for prosecution, and did not in any way approach to felony. Indeed, 688 the conduct of Alexander seemed to be of a much more criminal nature. The way in which Borthwick had been carried in irons to Edinburgh, and denied all access of friends; and finally the deserting of the diet in Glasgow, presented a picture of indefensible oppression.
said, he rose with much anxiety and solicitude. A near relation: of his was among the parties interested, and he trusted that the House, notwithstanding the lateness of the hour, would think him justified in prolonging, for a short time, the discussion. The house would recollect, that when the hon. and learned gentleman opposite brought forward this question last session, the motive imputed to the law-officers of the Crown in Scotland, was mala fides throughout the whole of their proceedings, from the origin of these transactions to the fatal catastrophe which ended in the death of sir Alexander Boswell. Now, how did the facts stand, as the hon. and learned gentleman had disclosed them that night? Why, that his learned friend, the lord advocate of Scotland, knew nothing of the quarrel between sir Alexander Boswell and Mr. Stuart, until the night when every body in Edinburgh knew it was a matter of public notoriety, and that the legal opinions which he had given of the documents before him, had been pronounced eight days before. That his learned friend, Solicitor General Hope, might have acted with indiscretion, (which he denied) was a different question; but that, in any part of these transactions, he had acted with mala fides was not to be sustained by any dispassion ate view of the case; and yet that was the main gist of the hon. and learned gentleman's charge. Into a disquisition of the subtilties of the law of the case, he did not profess himself competent to enter; nor did he think that House at till times the best tribunal for settling such points [Cries of Hear]. The hon. and is learned chairman of the quarter sessions of Doncaster (Mr. M. A. Taylor), who manifested a disposition to interrupt him, wits perhaps perfectly competent, to instruct them upon points of Scottish law; and the House would no doubt have the benefit of his opinion. It was singular enough that he (lord Binning) should have been challenged by the hon. and; learned gentleman opposite (Mr. J. P. Grant) to hazard an opinion upon the legal part of the case. He knew that the 689 hon. And learned gentleman was a member of both the legal professions, English and scotch and he also knew-, that, in his speech that night, he had strangely mixed up and confounded tire principles of both. Now, he was not prepared to say whether tins or that act was felony according to the Scottish law. Whether braking open a partner's desk and carrying off his papers amounted to that offence, it was not for him to assert; but he might be permitted to say that, according to British law, such an offence, to say the least of it, was a trespass, and punishable in some shape or other. Why, then, might it not be a crime in Scotland? Or what was there absurd in Solicitor-General Hope entertaining that opinion? There were higher authorities than the hon. and learned member, for asserting, that this offence was penal; for the Lord Justice Clerk had distinctly held that it was not bailable. His only object in pressing this topic, was to show that Solicitor General Hope had not travelled out of the course of his duty; and this was, he thought, apparent from a dispassionate consideration of the whole case. The noble lord then recapitulated the whole of the proceedings in Borthwick is case—and the manner in which Mr. Stuart got possession of the papers; and contended, that Borthwick, who was represented as being so immaculate a person, had acted throughout in a manner utterly indefensible. Borthwick might have been released on bail if he pleased; but it answered the purpose of those concerned better, that he should secure the reputation of a martyr, and form the ground work of such a case as the present against the law officers of the Crown. With respect to his hon. and learned-relative, he was a man incapable of an act of deliberate injustice. He had acted through the whole proceeding in perfect conformity to the law; and even if he had been guilty of an error in judgment, the House of Commons would, he thought, be the last assembly to blast the reputation of a young and rising man, by. agreeing to such a resolution as that which had been proposed by the hon. and> learned gentleman.
§ Mr. M. A. Taylor
said; he had read the whole of the papers and those who knew him better than the noble lord, would be satisfied, that he would not give any vote to inflict pain or censure; on an individual; were he not satisfied that it was deserved. 690 He could allow for the warmth of feeling of the noble lord; but he had talked of this as a question of Scotch law; whereas Scotch law had little to do with it. The House was not debating on Scotch law but on the invariable principles of justice, on which every man was competent to form his own opinion.
§ After a brief reply from Mr. Abercromby, the House divided. Ayes, 96. Noes, 102. Majority against the motion, 6.
|List of the Minority,|
|Abercromby, hon. J.||Mackintosh, sir J.|
|Allan, J. H.||Marjoribanks, S.|
|Althorp, visc.||Martin, J.|
|Barnard, visc.||Milbank, M.|
|Barrett, S. M.||Milton, visc.|
|Benett, John||Monck, J. B.|
|Bennet, hon. H. G.||Moore, P.|
|Bentinck, lord W.||Maxwell, J. W.|
|Bernal, R.||Newport, sir J.|
|Brougham, H.||Normanby, visc.|
|Browne, Dom.||O'Callaghan, J.|
|Byng, G.||Ord, W.|
|Brownlow, C.||Palmer, C. E..|
|Barry, J.||Pelham, hon. C.|
|Calcraft, J.||Pelham, J. C.|
|Calvert, N.||Philips, G.|
|Carter, J.||Poyntz, W. S.|
|Cavendish, lord G.||Ramsden, J. C.|
|Cavendish, hon. H.||Rice, T. S.|
|Chamberlayne, W.||Ricardo, D.|
|Chaloner, R.||Rickford, W.|
|Cradock, S.||Ridley, sir M. W.|
|Crompton, S.||Robarts, A. W.|
|Daly, James||Robinson, sir G.|
|Davies, J.||Russell, lord J.|
|Denison, W. J.||Scarlett, J.|
|Denman, T.||Scott, James|
|Duncannon, visc.||Sefton, earl of|
|Ebrington, visc.||Smith, J.|
|Ellice, Edw.||Smith, hon. R.|
|Evans, W.||Smith, W.|
|Fergusson, sir R.||Stanley, hon. E.|
|Folkestone, visc.||Stewart, W. (Tyrone)|
|Forde, M.||Stewart, sir J.|
|Glenorchy, visc.||Sykes, D.|
|Grant, J. P.||Talbot, R. W.|
|Grattan, J.||Taylor, M. A.|
|Griffith, J. W.||Tierney, G.|
|Guise, sir B.||Titchfield, marquis|
|Gordon, Robert||Townshend, lord C.|
|Hobhouse, J. C.||Webb, Edw.|
|Hume, J.||Whitbread, S. C.|
|Hurst, R.||White, col.|
|Hutchinson, hon. C.||Whitmore, W. W.|
|Hotham, lord||Williams, John|
|Lambton, J. G.||Williams, W.|
|Lennard, T. B.||Wood, M.|
|Leyceater, R.||Hamilton, lord A.|
|Maberly, W. L.||Kennedy, T. F.|