Star. — London, England, 1822-07-10 00:00:00

:0" t",,7,' . A . . s .'• • in _ • r— very allegation. But than that action happens to be. at theinstanceof,ecisssp)cuonsly active political ai sociate ; and this unprecedented and inquisitoctil examination was evpected, probably, to supply the, evidence which might be wanting in the leggpro ceedings of your friend. But it is not merely on such generaittanik That 1 now wish to notice your conduct. I MuWrithe:l wish to advert to the want of good tsuite—of pro priety—of candour, which our attack manifests.—. You, an English Barrister, exercising those very, rights which you have so directly attacked, and called upon (it spay be) to discharge the very same duties, which others in your profession are bound to discharge, have made -tbe conduct and motives or scotch Counsel, in a private and depending case arising in a. Scotch Court, the subject of abuse and personal reflection in the British House of Commons. The members of your own profession in England will, I am persuaded, unite with the Bar of Scotland in reprobating the presumption whiCh characterises so unusual a step, and the violent spirit of party and of political hostility which it betrays. Thei e is something, it must be admitted, peen- . Early becoming and graceful on the part of Gentle men of the Bar of England, who may enjoy the op-. portnnity of public invective in the House of Com mons, availing theinselves of that advantage, in order to arraign the motives—to censure the conduct—and to question the profesional skill and judgment of Scotch Counsel, in the management of a private action, which hitherto has not even advanced so far, as to be brought ur,der the opinion and consideration of the Court to which it belongs. But when the Counsel, who are the object of so unusual an attack, happen to be young Gentlemen recently called to the Bar, who e prospects and professional character may be the more easily injured by the vehement and un qualified impeachment of their motives, and the sweeping condemnation of their prurience and know-1 ledge ; and when the attack, on the other hand, is made by those who have acquired the standing and the authority of Seniors, and who are aware that they influence the opinions of the party in the country with which they are connected, the generous and high minded feeling—the moderation, kindliness, and dig nified character, exhibited in such an attack, will, no doubt, be duly appreciated. That attack, however, being now public—an at tempt having been made to intimidate and stigma tize the Counsel who are employed against your poli tical friend—and the merits of the action having been selected as the topic of inflammatory and laboured Parliamentary invective, the action may now, per haps, be resumed, in the hope of deriving aid from your interference, and as if to furnish a practical il lustration of the notions which you entertain, as to the impartial and fair adminiatuation of justice be tween man and man. _ I have now, however, to inform you, that in re presenting me as Counsel in that case, and in direct- , ing your reflections and insinuation; against me in that character, you either.bave acted upon most false information—(if you have received any information on the subject)—or at least upon most iniufficient and unwarrantable grounds. I am not, and never twat, Counsel for Mr. Alexander or the other defendant, in the action against them at Mr. Stuart's instance. I drew no papers—l gave no advice or assistance in that action : and my only knowledge of lb merits or details, is that which I have been obliged to acquire, in order to meet your wanton, illiberal, and extraor dinary attack. At the commencement of the action I was applied to, in the view of being retained as Counsel for the defend ants. Understanding that they had the efficient and able assistance of Mr. Forsyth and Mr. M‘Neill, I stated that circumstances of a personal nature rendered me desirous not to be employed or consulted in the case; and, though not entitled to withhold my professional assistance in any case of the sort, I begged to be al lowed not to act in this particular instance. You are well aware that, if the party - had insisted upon having my aid, there was no professional reason which I could with propriety have assigned, or on which 1 could have been entitled to decline the case. If I had anticipated the injustice which the defendant was to suffer from the discussion of his case in Parlia ment, or that an attempt was to be made to intimi date and deter his Counsel in the discharge of their duty, most assuredly I would not have allowed any personal consideration or feeling to prevent me flom undertaking Mr. Alexander's case,which I now regret that I declined. • Of the conduct, management, or particular merits of the case, I knew nothing until this day. It ap pears that the clerk of the defendant's agent, not being able to find Mr. M'Neill at the time when the paper in question was about to be lodged, had brought it to me to sign for Mr. M'Neill. Every one ac quainted with the rules and practice of the Scotch Courts, is perfectly awart. that Advocates are al lowed, and are continually in use, to subscribe in this manner, pleadings for another, as it frequently hap pens that the subscription of the lawyer who draws the paper cannot be obtained before the time, or the particular hour, at which the paper must be lodged. Papers are accordingly subscribed every day by one Counsel for annther—:in the way in which, it appears, I had subscribed the paper in question-6' For Mr. D. John Hope,"—not even knowing the parties in the case. No responsibility for the con tents of the paper is inferred or created by such sig nature. I state that as matter of universal under standing, and of daily practice. Indeed, the mode in which my name appeared in the paper in question, must have proved at once, to every person acquainted with the practice of the Scotch Courts, that I was not ' Counsel in the case. Mr. Stuart, I understand, was offended at the con tents of that paper, and personally applied, some time 'sifter the paper was lodged, to the agent for the other party, to know if I was Counsel in the case, or whe ther I had merely subscribed the paper in the usual way for another Counsel. Mr. Stuart war informed that I was not Counsel, arid - that I knew nothing of the paper. It appears that those friends of Mr. Stuart, who superintended the publication of the Report of Mr. Stuart's Trial, thought fit to publish, without expla nation, both ' names . appearing at the paper in ques tion, lough these names were not read or mentioned at the trial. That the names" were so printed in this particular niannet,/or the psi7poie of representing me, to persons*igfiorent - of Scotch forms, as the Counsel " in the case, text for int wide by y' Whichtlraf 'little room W 'Report, teen) mklit not be 'th Scota * p , of 41 formal stibsc — rrp . no' n; without ***nation, OR more temarkable,when considered in connection with the use immediately made of it by you in Parliament. —The Report of the Trial, which is of great-length, was prepared - also with a' rapidity which seems to shew a desire to be in time for the motion made by you ift . Parliament. Unflerstandiag lerroneously) that the Report had been revised by Mr. Jeffrey and 'Mr. Cockburn (the leading Counsel in the case), I took measures, on seeing the use to which this part of the Report had been turned, to inquire whether either of them had sanctioned or revised this part of it, coth- Municating my opinion, that I had no doubt of the purpose, and that I considered it an unfair and ea gantlemanlike proceeding. Both of these Gentlemen frankly declared that they had not seen that part of the Report before publication, and disclaimed having authorized it. The circumstance, that these names are printed 'n .a way calculated to mislead, is the more remark ' ble, that,it cannot be defended on the ground of adhering literatim to the procedure on the trial, since part of that particular paper, read (as I am informed) at the trial, is not printed;—and in the same man ner, a very remarkable passage is omitted in one of the letters from Mr. Stuart to Mr. Gibson, and no appearance even of an omission is noticed, in the way in which the letter is published. It is likewise a circumstance not a little remark able, that this mode of representing and printing the signature at the Record, is different from the mode observed in practice (I believe I may say invariably), in printing the pleadings ; and it is known, that a great part of the pleadings in Scotch Courts are printed. Though it happens, perhaps in three cases out of ten, that the Record is subscribed in the way I have mentioned by one Counsel for the Counsel who drew the pleading, yet, the printed copies for the use of the Court, the parties, the Bar, and all concerned, uniformly bear merely the name of the Counsel who drew the pleading, and the printed co pies never enable one to ascertain, whether the re cord has been subscribed by the Counsel who drew the pleading, or by another for him. The use made by you of the line of defence thus ascribed to me in this action, in order to give a do lour to the statement of the case of Borthwick, suffi ciently skews the importance attached to Me attempt to represent Ms as one of the Counsel employed against Mr. Stuart in the private action already mentioned. The whole of your speech proves the copious and artful information which you had re ceived from Scotland ; and the circumstance to which I have now adverted, coupled with the serious use Immediately made by you, of that circumstance, in Parliament, is a coincidence which it requires some charity to ascribe to chance. If, on the simple fact, that you saw in the Report of Mr. Stuart's trial, the words, " For Mr.lX.MiNcill, John Hope," you, and Sir James Mackintosh, have assumed that I was Counsel in the case, And without further information or inquiry, have thought proper, on this ground, to include me in your invective : then you will allow me to say, that the ignorance you have betrayed of the rules and practice of Scotch Courts, proves how admirably qualified you are to comment on the professional conduct of Scotch Coun sel. I must further desire you to consider the im propriety and injustice of making an attack in Par liament on the conduct of private gentlemen, with out even taking the trouble to ascertain whether there was the slightest ground for the attack. I must likewise observe, that the words, " Fan " Mr. D. M'Neill, John Hope," seem of themselves to signify, to any professional person, though not connected with the Scotch Bar, that I had not sub scribed the paper on my own account, or as a pro duction of my own, for which I was at all respon sible. At least, the words are, I think, of that de scription, that any person of professional habits, influenced by a due consideration for the character of others, and not actuated by a desire to make the attack for a particular purpose, would have hesi- Lited before he ventured, upon such grounds, to utter a violent invective on the legal character, the professional judgment, 'and even the motives of a gentleman of the Bar. The duty peculiarly incumbent on those, who know that, in the exercise of the right of Parliamen tary discussion, they are invested with high and un questionable impunities; and the duty which high minded men must, in that situation, feel particularly solicitous to perform, is to examine most strictly the grounds on which they accuse, and to proceed with caution, temper, and forbearance in promulgating, with the privileges and authority of that situation, statements which involve the characters of others.— Whether You have attended to that duty on the pre sent occasion, let the Gentlemen of England decide. If, on the other hand, you have been induced, by information from Scotland, to believe that I acted as Counsel against Mr. Stuart, I can only ascribe the statements made to you to intentional misrepresenta tion. Every person connected with the Case knew' perfectly well that I was not Counsel. But I feel some desire to know both the nature of such infor mation, if you received any, and • the source from ' which it came.. In estimating the propriety of your motives, the apparent respectability of the quarter from which you received your information, may . be 'important. After the communication made to Mr. Stuart on this very subject, and when no man con nected with Scotch law practice, in any department, however inferior, could possibly misunsierstand the origin of my subscription to the Paper in question, I cannot but entertain a strong desire to know, froth what quarter you received information, and the au thority of what description of persons you considered to be sufficient, to entitle you to make such an attack on a Gentleman, in the same situation, certainly, in society with yourself. I will not insult my friend Mr. by saying one word in order to shew that he was entitled, on the part of his clients, to maintain that they were ready to prove the truth of the alleged slander. In fact, Mr.M , Neill was not the real object of attack in the allusion to this Paper. And an attack upon him on this ground mould not have answered the purpose be Bard to the criminal prosecution against Borthwick, at the instance of his Majesty's Advocate, though he was employed as Counsel, when the case was taken up by, the private party.—lndeed, knowing that Ise had been engaged previously as Counsel in the private disputes between Mr. Alexander and Borthwick, and that he was Counsel for Alexander in several actions, in Which that person was concerned, I purposely avoided men- , tioning the case of Borthwick to him, on any one oc casion.—The case had likewise occurred within the circuit district on which it was then my turn to act, which naturally devolved the consideration of it on me, when the private party applied in the usual way to the Crown to prosecute, as is done in every case, which is thought fit for trial.—As the Senior Advo cate-Depute, it was also my duty, in the absence of the Lord Advocate and Solicitor-General, to incur any responsibility attaching to the case. The foundation of your charge of oppression and malicious prosecution, in the case of Borthwick, seems to rest on the feeling and temper against Mr. Stuart, which you alleged to be manifested by the pleading, to which •I have already adverted. But in order to give that colour to the proceedings in Borthwick's case, it was absolutely necessary to represent me as Counsel against Mr. Stuart in the private action, since Mr. M'Neill is in no degree more reiponsible for the proceedings against Boithwick, at the instance of the . Lord Advocate, than any ether Gentleman at the Bar. Disconnect him, on the one hand, from that case, and me, on the other hand, from the action of damages at Mr. Stuart's instance; and then, there no longer exists the least foundation for imputing to me those motives to which the proceedings against Borthwick are ascribed. I never read the Paper which you have so particularly ascribed to me, until I begged Mr. M'Neill to-day to get a copy of it for me. On the other hand, all the Crown Counsel are perfectly aware that Mr. M'Neill was never once consulted or referred to by me in any one step regarding Borthwick. And if I am correct in my recollection, I stated in a letter to the Lord Advocate, soon after I instituted pro .ceedings against Borthwick, that I had not consulted Mr. and did not intend to consult him in regard to the case, either of Borthwick or of Mr. &uarr. Of the latter case, he had no official know ledge or information whatever, until, owing to my indisposition, it became necessary for him to draw use indictment. _ _ _ Upon what grounds you and Sir James Mackin tosh have proceeded, in the attack which you have severally made upon me, for supposed conduct, as a COunsel in a private and dependingaction, I have no means of exactly ascertaining. It is very possible that the wilful misrepre:entation of others may have induced you to think yourself safe in the grounds of that attack. But (whatever Was the nature of your information)—that the circumstances io question have been anxiously, or at least hastily, and therefore un warrantably seized hold of, for the purpose of im puting my officiil ccnduct to flagitious motives, can not be denied. Whether you truly believed the state ments which you ,A ere so forward and ready to make, is a question I cannot permit myself to ask. The injustice, illiberality, and intemperance of the com ments, with which these statements were accompa nied, you cannot now dispute. Having attacked me upon this ground, it then eippears, that you proceeded to accuse me of having acted,'in my situation of Advocate-Depute, from the influence of the same feelings to which you chose to ascribe the line of defence maintained against Mr. Stuart, in the case I have already mentioned, and of having raised a prosecution against Borthwick, and of having insisted in his imprisonment, when I could not sincerely believe that there were grounds for a trial, or entertain any intention of insisting in the charge against him. And the motive to IA hich this charge of oppression is directly imputed, is the desire to keeg up a prejudice against Mr. Stuart, by maintaining, until after Mr. Stuart's trial, the appearance of a pro secution against Borthwick, in which there was no intention seriously to insist. To that charge I have to make a very short but decisive answer. The Lord Advocate can inform you, that, from the moment I instituted proceedings, at the instance of the Public Prosecutor, against Borthwick, I URGED MY OWN OPINION, IN THE STRONGEST AND MOST EARNEST TERMS, THAT THE CHARGE AGAINST BORTHWICIC SHOULD GO TO A JURY, AT THE CIRCUIT AT GLASGOW, IN APRIL LAST, 'IMRE MR. STUART WAS INDICTED—in terms stronger, perhaps, than I was entitled to use, in of fering any advice to his Lordship. And it is known to several of my friends, that I expressed much dis satisfaction at the delay and abandonment of that case, in consequence of instructions from the Lord Advocate. The earnestness with which I pressed my opinion, that Borth wick ought to be tried at the Spring Circuit, at Glasgow, so as to have the trial over before Mr. Stuart was indicted, is a sufficient proof of the since' ity of' my wish and intention to bring Borthwick before a Jury, and that I was not actuated by the desire to maintain the appearance of a charge against Borthwick until after Mr. Stuart's trial. Indeed, so strongly impressed was I with the propriety, the expediency, and the necessity, for the ends of public justice, that Borthwick should be tried at the ensuing Circuit at Glasgow, before an indict ment was raised against Mr. Stuart, that I at once in dicted Borthwick, without communisation with the Lord Advocate (then in London), and as the dates of the aFplication at the instance of the Lord Advocate for his apprehension, and of the Circuit, will shew I made great exertions to complete the preparation of his indictment (which the number of productions, pertly lying in Glasgow, and partly .in Edinburgh, but all specially described in the indictment, ren dered very troublesome) in time for the Glasgow Cir cuit (April 10—fifteen free days for service of the indictment being necessary. I feel the less delicacy in stating, for my own vin dication, against the imputation of insincerity and malice in this prosecution, the difference of opinion between the Lord Advocate and myself respecting this particular case, since that statement completely and necessarily relieves his Lordship from responsi bility, which, by no possible inference ; can fairly at.: ; - . , Eh isiepect seteany, or eves ely,railensible-tor the proceedings insti. against Bosihwick. He suspended, for the further consideration, and finally aina. proseiution which I instituted. It does .4 seem to be highly unreasonable to make responsible for proceedings which /commenced. which Ae interfered its tardy to stop.. Oa die other.hand, the facts of the case, and the earnestness with which I urged my own optaiOn to iity - Lorst Advocate, afford real evidence that, whether righter wrong in my notion Of the case of itorthwick, was at Last perfectly sincere in my conviction that be ought to he.tried, and in my wish to bring 14m be. fore a Jury.• Whatever responsibility is to arise from the caserf Borthwick, therefore, can attach only to ?rye* an d am as little inclined to shrink from that respcies' lit!, as I am to recede from my opinion, that fit** FROWN, IN THE WHOLE CIRCUMSTANCES OF MICAS*, OUGHT TO HAVE SEEN BROUGHT BEFORE A JURY Oa , HIS COUNTRT. tach to Mak 'of the The grounds of that opinion I than be prepared, and shill be most ready to state, when the proper occasion arrives. I am not at all afraid of meeting you, either on the question as to the legal criminality V the acts charged, or on the question of the indivi. dual's guilt or innocence, according to the precut/ l i. don laid before me, or of the expediency of pro,eco. don in the circumstances of the case at the instance of the Lord Advocate. These are matters, ho %%ev er , which you promise to agitate in Parliament — t h e discuaioa of which I feel no desire to anticipate, ani have no'reason to dread. Ido not, therefore, m ean now to enter into the question whether I am right or wrong in point of law or of expediency, in the view I formed of that case. I presume that your Parliamentary impeachment is not intended to be grounded nielely on error in point of law or of expediency. You are bound to ad here to your charge of malicious and wanton oppres. sion, or to retract that charge more honourably and candidly than it was made. You may be assured, that throughout the inquiry, of which you propose to make me the object, I shall not lose sight of the man ner in which your charges were brought forward-- and of the direct imputation of malicious motives to which my conduct was ascribed ; and you may per. haps find, in the result of this inquiry, that you will have some reason to 'egret the precipitation with which you have become the instrument of an att.ick, prepared and got up for you, I believe, by others. On the 4th of May, not many days after the Glas gow Circuit terminated, Mr. Alexander intimated to the Crown Agent his intention to prosecute Borth wick at his own instance, as private prosecutor. From that time the prosecution against Boni , . ick was a the instance of the private party alone, and was no longer under the controul, direction, or manag.z ment of the Public Prosecutor. On the other matters of accusation stated by yru, in regard to the treatment of that individual, I shall only say, that I distinctly deny the truth of all the statements you have made respecting the severity and illegality of his apprehension and subsequent treatment, and I am ready to spew, that nothing was done contrary to law or justice. 1C that inditi i. dual has wrongs to complain of, he cannot fail to obtain redress in a Court of Law. In the meantime, I cannot but admire the great liberality displayed in introducing charges of such a serious and grave character directed equally against the Lord Advocate and myself, without any previous communication of your intention, and without allow ing the Lord Advocate an opportunity of obtaining the information necessary to vindicate me against the imputation of having acted oppressively, from the base and unworthy motives which you have pre. sumed to ascribe to me. I understand that yon hare subsequently moved for papers, with a view to in quire into the case of Borthwick. Having alrea2y, without any notice, attacked and condemned n:y ' conductin tegard to that case, in the most unpin= fled terms, anci, basing roundly and broadly a , cH , e.l my conduct to the very worst motives, when C.ere was neither time nor opportunity fur defence, it cer tainly appears an appropriate and fit course of pro cedure, to conclude by moving for inquiry—a mea sure which sufficiently marks your own consciil.a. ness of the unfairness of your previous attack out inquiry. The course which you have followed, of impeach ment without notice, has been attended with this ob vious and most unjust result—that the preliminary stages of Parliamentary discussion, by which public impression is mainly created, have passed against me, without the possibility of explanation or defence. — Whether that is the usual course of Parliamen:arr procedure, in an accusation against a Law Oilicer et the Crown, cannot be unknown to you. The usti.:l courtesy and candour observed in Parliament, 01 :n -timating the object of intended motions to the friends of those whose conduct is to be questioned, have been also, in my case, entirely neglected. To what cir cumstances I am to attribute this deliberate depariu: e, both from the usage and courtesy of Parliament, I am yet to learn. If, however, it shall appear, 'that the subsequent • So false and injurious is the attempt to ascribe my opi:,:on, In regard to the case of florthwick, to any feelings create , ' by the fatal and unfortunate event at Auchtertool, on the :6th March, that it appears from the Crown Agent's papers (a cir cumstance which had escaped my own recollection), that can 04 17th of March an application was made on the part of the Po curator-sseal of the County of Edinburgh, stating that the per vate party, Alexander, had applied to him to concur and as,ist in the precognition, of which it became necessary to take part :rt , Edinburgh, for the recovery of some of the articles taken ifo:4 the Sentinel Oface--tranbmitting the precognition, in sn far as it had been taken at Glasgow, and requesting the opinian advice of the Crown Counsel on Ike points, whether the c,ee was one in which that assistance ought to he given—whether :;x case ought to proceed at the instance of the private party aloo.t or what course the Procurator-asdd ought to follow. Ou the 18th of March, eight days ETTORE the metal at Mall tertool, it appears that I returned an opinion to the CNA a Agent, for the direction of the Procurator-fiscal, in obial after stating my opinion of the cue, I added, 44 Ton IS CHAILEZ which, ur TUE PRIVATE NETT Armies, METE it TATIO UP AT THE PUBLIC uurrAnce." The precognition was coutinued, and nearly completed, by the private party, who did, on the 20th of March, apply to the Crown to prosecute, trausmitt , rg the whole precognition ; and in pursuance *of the opinion I b. 4 originally formed, which the additional investigadon only tended to confirm, i gave directions to rte Crowe Agest to proceed the case at Ss iustanee of his Majesty's Alivocato. . . . . • e, area 0 afrordingtintappatance of a ple...voina :. Tha nansaction bonnet this action y Me.. tech to Ma 'ten . epplitical alithek.vrthit use *moony Stout an d tii case of Borthwick,, on eeltdciriewaa '`eonstructive you) . atelt thersaffel:; niFgle mode' n your "tape* t 6 insist, 'la ordetio ere a c olour to tated agair il lliedi it pa ', thqjteport is.perneed, leaves me your charge respectirkthe hew ease, waelt_have purpose of a to dquic - : The anxietremaKfrested in this been entirely lost, if Mr: Iff , Neill ileme.liad besn'.re- dingy the I o`espillti eiery other.:crrcunkance which presented as respensibta for • the conduct of the . defews therefore Sc tbe undersiood by' persons unacquainted against Mr. Strares action. It was well known that him responi A - Draiiiie and forms, renders the printing be bad taken no charge; and given no advice in re- and which . ...... __.:....:..-1 ...............4. ....;rict Rnrthwielk,.. other.hand., I ~-- I; .t% A~ -