The Sun. — London, England, 1823-06-04 00:00:00

Dare no other newer to mike to those W o h Might inquiree- ' whether they were married , save , " We don't know ; it d vends on the will of a third party !" Voidability was, 'therefore, the most objectionable principle which could be ladopted. And, besides, the clause was wholly nugatory as to the effect which It was intended to produce. It was worth nothing at all. What was its Object ? To afford protection to parental authority ; but that could not be effected without leaving means of evasion. Formerly they were rather expensive, and con s i s t ed chiefl y of a post-chaise and four to Gretna Green,. but now a steam-boat to Calais would do it an expence which every body was able to bear. But besides marriage by bans was left open. Every one had heard, at one time or other, of secret marriages; well, all those that he knew of had been solemnized by bans. As long as bans, Scotland, and the Continent were left,. open, what was the good of such a clause ? It had been said that young men might be seduced, into imprope r marriages ; but it coull not be Lilted or concealed, that in nineteen out of twenty of those marriages, the female would be the seduced victim. Leaking at the advantage of all parties, fathers, guardians, and minors, it was for their interest that the present clause should not be enacted. What would be the situation of a woman• turned adrift after the marriage had been completed, and therefore lost to society for ever; or those of the man, who, having married her with the intention of. entering into a solemn contract, should thus have been made the instru ment of her ruin ? Ite was convinced that when unequal marriages had been contracted, dissolving them would not mend the matter. Au extreme case had been supposed ; but it would not be just to legislate on extreme cases. It was in. tended to protect parents and guardians, but it would be more - tender towards them to place them in a situation in which they should feel that they had no choice than to subject them to the heavy responsibility which this clause proposed. It would be better to revert to the old law of the country. Looking at the case in all its bearings, and considering the clause to be wholly nugatory, be could conceive no reason whatever for adopting it. There was a subsequent one of which he highly approved. It, was 'that by Which it would be'enacted, that the man who monied a minor without the consent of her parents or guar . (liana should have no right or claim to her property. In the same spirit he should have no objection to any preventive of improper marriages which could be suggested, but however they might be deprecated, when once contracted, he thought the best thing that could he done was to leave them alone. The Earl of POWERSCOURT also opposed the'clause. The Archbishop of CANTERBURY conceived that, after the charge of the display of an unchristian spirit in the Corn. mittee, which had been made, their Lordships would not be surprised that he should feel some uneasiness. That charge,he knew, was unfounded ; but yet he regretted that it had been made. The clause complained of had not been proposed as one wholly free from objections, but as one objectionable in a less degree than others. Neither was he so wedded to it as to insist upon it if the House did not share his sense of its expediency. It was not intended to augment, but to protect parental autho rity, and as to its want of Christianity, it was true that the mar riage ceremony quoted formidable words, " those whom God has joined let no man put asunder ;" but the question was merely whether that sanction had been obtained which made it the junction of God. Their Lordships knew that marriage was once a sacrament—why was it not ao now ? Because it had not the properties of one—it had no visible signs given to it by fiat, but it had been left to man to devise and give it forms. With respect to voidability, it had appeared to the Committee a more tender enactment than complete nullity, and had been proposed as less objectionable, though not free ftom objections. Lord REDESDALE looked-upon the question as one of expediency ; whether it were fitting that parties who had lived together as man and wife, should be put asunder, and thought it more beneficial for society, that marriage, when the ceremony had been once solemnized, should be rendered indissoluble. Lord ELLENBOROUGH believed that if all the Members of the Committee had been assembled, the numbers on the clause would either have been equal, or the majority that of one only. He regretted that after hearing the excellent argue ments of the Noble Earl opposite (Liverpool), the Most Reve rend Prelate should still persist in supporting that clause which the Noble Earl had proved to be nugatory, and which the Most Reverend Prelate bad himself declared last year to be most contrary and repugnant both to Morals and Religion. The Archbishop of CANTERBURY said, that he had not expressed any obstinate adherence to the clause, if it met with 'the disapprobation of the House. Lord ELLENBOROUGH regretted that it was not wholly abandoned. He then urged its inutility and injurious tendency. Its effect would be to encourage seduction, and to enable a man to obtain the person of a woman, with the intention of having his marriage afterwards declared invalid. It was for - the seducer against the seduced and was only penal for the innocent. Marriage was a civil and religious contract; and, the laws of man could interfere only with the civil, not the re. ligions part of the contract. The Bishop of LONDON contended that the clause was not opposed to morality nor to the law of God,; and that if the law of the land required any other forms to be observed, and they were not complied with, the more religious ceremony did not complete the contract. Viscount SIDMOUTII vindicated the conduct of the Com mittee, and supported the clause. Lord Ettrsnortouott explained. After a few words from the Earl of PowEnscomyr, Lord STOWELL said, the Committee appointed to consider 'the laws relating to carriage, had directed their attention to the protection of the younger part of society, and at the same time they thought it 'impossible not to consider the rights of parents. The Noble and Learned Lord adverted to the state of marriage sanctioned by the Church of Rome, and common in England previous to the Reformation. Marriage was con summated by the consent of parties, and in that state it conti nued a number Qf years. The earliest Reformers were, how ever? desirous of strenthening parental author it y , and t heir opinions were certainly at variance with that of the Reverend Prelate, who said the dissolution of marriage was a violation of God's law. The law long recognized by the Church said, . marriage without the consent of parents should be null and void. Protestants had always considered the consent of parents the aubstratum of marriage. The bill introduced b y a Noble Earl (Lord Hardwicke) certainly did not consider the principle which the Rev. Prelate had pressol with so much vehemence to be inviolable. The conduct of Judges in the Law Courts of the Country must have been adverse to the will of Heaven, if • the statement of the Rev. Prelate was correct, because they , had in numberless instances dissolved marriage. The Com mitteeon the Marriage Laws had considered whether marriages -without publication of bans were not null and void ; they -thought, however, they might dismiss the objections to mar riage by license, and turn their attention to the best mode of protecting parents and guardians. They found but four ways in which the rights of parents might be preserved. The first was that of nullity,and here the Noble and Learned Lord said lie was disposed to adhere to nullity in improper marriages, well knowing the misery such marriages entailed upou parents and children. Hard cases might be found, but when all the facts .v4ere known, the separation of the parties generally lost the ob. jectionable shape it first assumed. Voidability of marriage, at one time, was contended for as strongly as it was op posed at the present day. The measure proposed by a , Noble and 'Learned Lora was expected to produce the the benefit, but it failed. A Bill had been start ed in the other branch of the Legislature, and the Noble Lord's Bill of last Session threatened to jostle the Bill in the House of Commons in its race. The Committee found, on giving their - attention to the subject, that all those measures hail been defective, inasmuch 'as they afforded little or no protection to parents. The Committee, 'in ftaming enactments on that, subject, bad to, choose nullity, preventive measures, or voidability of marriage for a limited period. They had *Joined voidability for the space of twelve 'months. It 'was most desirable the law of marriage should be uniform, and that there should not be one law for the rich and another for the poor. in that view the Committee recommended the clause, making marriage voidable. The professional experience of the Noble and Learned Lord, had not led him to conclude that marriage ought never to be dissolved. lie had seen the agony of parents and the total destruction of children, occa sioned by disgraceful 'marriages. The son blasting all his pro spects, and casting disgrace upon his family. fie had beard strong objections to the clause. It was, however, an experi spent which might be tried. .The Committee had proposed it with the best intention, and whatever might be the result he -should support it. Lord POWERSCOURT Spoke in explanation. The question - was then put for leaving out the clause, and the House divided — C on t en ts - - 22 N on Contents - - 20 Majority a gainst the clause - —6 The other clauses were then agreed to, the Bill went through the Committee. and was reported with the amendments. Adjourned at HALF-PAST TEN O'CLOCK. HOUSE OF COMMONS. Sir J. YORKE presented a petition from the lion. John indsey, the proprietor of a small Island off Guernsey, setting forth that he had a large quantity of the finest granite to dispose of at a very low p r ice, and praying that the London Bridge 'Committee might have their attention directed t o his offer.— Ordered to lie on the table. On the motion of Air. ROBERTSON, accounts were order ed of the total number of ships built and register ed in the p orts of Great Britain in the years 1821, 1822, and '1023, together with accounts of their tonnage, the number of their crews, and the amount of their imports and exports during the same period. On the motion of 'Mr. CURWEN, an account was ordered of the drawback of Is. per bushel on malt, allowed to the Scotch distillers, during last year. Mr. WALLACE brought up the report of the Select Com mittee on Foreign Trade, which was ordered to be printed. On the motion of Lord ALTHORP, the County Courts' Bill went through a Committee, the report was received, and ordered to be taken4nto further consideration this day se'nnight. Mr. W. COURTENAY gave notice, that to-morrow he meant to submit a motion for the amendment and consolidation of the Bankrupt Laws. IRISH JOINT-TENANCY BILL. Mr. D. BROWNE moved the third reading of the Irish Joint-tenancy Bill. Mr. C. H. HUTCHINSON strongly condemned the man.' ner in which this Bill had been hurried through the House, without adequate discussion. He earnestly hoped that the Honourable Member would postpone it until next Session, and in the interim allow the several Grand Juries in Ireland to ex press an opinion.spon it at the Summer Assizes. The object of this Bill was to effect a great political change in the situa tion of 40s. Freeholders, two-thirds of whose franchises it would unquestionably set aside, without at all improving, or having a tendency to improve, the agricultural classes, whilst it directly affected the natural and just influence of property.— He entreated the Hon. Member who was so friendly to the Ca tholic-interests of Ireland, to mark the inevitable effect of his Bill upon the great body of the Catholic 40s. freeholders, in the south and west of Ireland, who would be-disfranchised in con sequence. He was as ready as any man to concur in. purifying the exercise of the elective franchise, and' would scorn to owe a seat in that House to indirect or impure means ; but he could. never consent, without previous and full inquirY, to an enact• ment like the present, which would effect so great a political change in the condition of so large a body of legally recognized freeholder:. • _ _ Lord MILTON could not concur with his Hon. Friewl in thinking that this Bill would disfranchise Catholic electors ,alone—there was no exception male in it for Protestant 40s. freeholders. Mr. D. BROWNE said that this Bill had been nearly two months before the House, so that he thought sufficient 'time had been allowed for its consideration. The Bill was then read a third time, and passed. DUBLIN CORPORATION. Sir JOHN NEWPORT, seeing the Secretary for Ireland in his place, wished to know whether it was the intention of the Government to take cognizance of the report on their table, respecting the misapplication of public money by the Corpora dm of Dublin. Mr. GOULBURN was not aware what particular report the Right lion. Baronet alluded to ;• but if he referred to the local taxation repott, it was the intention of the Irish Govern ment to take into consideration the whole question connected with that branch of the public expenditure. Mr. WILMOT presented papers by order of the House respecting the Island of Cuba.—They were ordered to be printed. SILK MANUFACTURERS' BILL. Mr. lIUSKISSON moved the Order of the Day fot a Com mittee upon the Silk Manufacturers' Bill. Mr. Y. BUXTON wished to know why the Committee was to be now pressed, when the understanding was that the parties should be heard by Counsel against the Bill. Mr. HUSKISSON replied, that it was desirable to have the Bill committed this day, and the report received on Monday next. Counsel could be heard in a future stage of the measure. The Bill then went through a Committee, and the report was ordered to be received on Monday next. EXCISE LAW& Mr. SYKES held in his hand a Petition, to which he begged to call the serious attention of all those who felt an interest in the maritime affairs of this kingdom. The Petition was signed by upwards of 100 ship-owners of the port of Hull, who repre sented property amounting to 200,0001. or 300,0001. sterling; they complained of a most intolerable grievance to which they were subject, contrary to the express principles of British law ; they complained that without any fault of their own, or any knowledge of, or connivance at, a fault in others, their valuable property, consisting of shipping and stores, were liable to seizure and forfeiture, for the misconduct, however trivial, of those over whom they had not, and could not possibly have, any controul. Their property was liable to seizure, if the smallest contraband article were secreted on board by any in dividual of the crew. lie knew that in cases of very notorious hardship, the officers of the customs and excise sometimes con sented to terms ; but even these, involving as they did legal costs, were so onerous as to impose a heavy grievance upon the Innocent party who was the victim of them. Ile could have no objection to the punishment of the individual sailor who was guitly of the infraction of law ; but why seize upon the property of the owner, who was ignorant of, and had no participation in, the offence. This petition set forth several heavy . grievances of this nature. In one case the ship Minerva was seized, because a bottle of foreign spirits, worth 125., was found on board, which was proved to have been secreted by a poor sailor, who was to be married on his return, and who wanted to bring over this bottle for his marriage-feast. It was quite impossible that the legislature could tolerate the imposition of so severe a griev ance as that to which ship-owners were now exposed. Mr. HERRIES said, that this had been already under the consideration of the Lords of the Treasury, who were of opi nion that the revenue could not be adequately protected, unless there existed this mode of punishing an infraction of the laws enacted tbr its security. He thought the chance of any preven tion of smuggling would be nugatory, if the penalty were to be confined to some individual who might happen to sail on board the ship; but the Lords of the Treasury were always ready to give the captain and owners an opportunity of showing their en tire innocence of any participation in the offence. He begged to add, that steps were already taken, preliminary to a consoli dation of the excise and customs laws: this was a comprehen sive and tedious arrangement, which he could not say would soon be completed; but during its progress the particular case stated by the petitioners could be fully considered. Mr. BRIGHT derived little consolation from the promised. (though remote) consolidation of the customs and excise laws, many of which lie should rather see expire, than have them embodied in a new form. While this tedious process was going on, was it not too much to expose the property of the petitioners to such an unjust and intolerable risk? He trusted that, in the course of next Session, some measure would be in troduced to remedy the evils complained of. Mr. CURWEN supported the petition. General GASCOYNE thanked the Honourable Member who had presented the petition, for having called the attention of the House to the important subject to which it referred. He joined with the lion. Member for Bristol, in hoping that Government would adopt some rethedial measure as early as possible. After a few words from Mr. SYKES, the petition was read, and ordered to be printed. INSOLVENT BILL. Mr. BRIGIIT asked the Solicitor-General when he intended to introduce his Insolvent Bill ? _ _ _ The SOLICITOR-GENERAL said it was his intention to bring in the Bill on Friday next. Mr. BUXTON moved that the petitioners against the Spite fields Acts' Repeal Bill be heard by Counsel on Monday nex 'Ordered. SHIPWRIGHTS. Mr. HUME presented a petition from the Shipwrights on the Thames, complaining of the state of the laws which pre vented them from seeking employment in foreign countries, although they were unable to find any in this country. The Hon. Member presented a similar petition from the Shipwrights in the dock-yards. Sir B. MARTIN said, that there was no ground of coin -plaint on the part of the men employed in the duck-yards. Mr. Lirr LETON took that opportunity of asking the Hon. Member for Aberdeen to postpone the motion which stood on the paper for that evening, for the repeal of the laws which pre vented the emigration of artisans, until next session. The sub- ject was one of very great importance, and could not receive the consideration which it deserved. Mr. S. Worm.uv, General GASCOYWE, Sir G. COCK minx, and Mr. Ilusxrasom, stated that they concurred in the wish for postyonement. The latter Member added, ,that lie was not unfriendly to the object which the Hon. Member fur Aberdeen had in view. Mr. [fUME then withdrew the notice ofmotion ; at the same time expressing his intention of renewing it next session. SALMON FISHERY AT SLIGO. Mr. I,IROUGHAM presented a petition, signed by upwards of 250 Freeholders of Sligo and its vicinity, who complained of an invasion of their rights of an ancient date. The petitioners stated, that in the 34 year of the late King, an Act was passel under the pretence of regulating the salmon-fishery in the county of Sligo, in which a clause was introduced conveying to A. B. the exclusive fee-simple right of fishing for five miles along the banks of the rivers The party to whom this right was g:voi had never before possessed a single inch of ground on the bank i of the river. He had examined the Act of Parliament, and found that the facts stated in the petition were correct. The pe tition was ordered to be printed. WILLIAM MURRAY BORTHWICK. Mr. ABERCROMBY rose to bring fbrward his promised motion respecting the Conduct of the Lord Advocate of Scot land. He was highly gratified that the time had now arrived when he would be enabled to redeem the pledge lie had given the House, and to afford the Le arned Lord opposite an own, tunity which he must so much desire to vindicate his own con duct. He was the more gratified at being thus enabled, be cause every day, since he had brought the subject forward last Session, had given him increased confidence in his ca use, and because he had been, he might say officially, calumniated in Scotland for the part he had taken in the transactions to which his motion would refer. When he had brought the subject before the Ilouse last Session, in a form more comprehensive than lie intended to shape it in at present, his motion had heel rejected; but by a majority which afforded little triumph to those whose conduct was brought into question. It was Even then .admitted by a late Noble Marquis, then at the he.id of Foreign Affairs, that the _particular case of William Murray Borthwick called for inquiry. In consequence of this, several papers had been moved for and ordered, and had been sent up to the Office of the Secretary of State; from these was made a selection of such papers as were con sidered necessary to belaid before the House, and they would have been produced had not Parliament been previously pro rogued. Early in the present Session he had renewed the motion for these Papers ; they had in consequence been pro clued to the House, and the motion founded on those papers, of which he bad given notice, had, as the Utilise well knew, been driven oft' by the Irish inquiry. These circumstances he thought it proper to state, not in the way of apology to the Noble Lord, but in that of explanation to the House, respect ing the apparent delay which had taken place since ie occur rence o" the circumstances referred to by his motion. The case he had to introduce to the House was of a dry character ; but he hoped he should be able to state it in a compendious and clear manner. The case was founded entirely upon the papers before the House, and upon thetas lie intended to call upon the House to pronounce an opinion ; and if any new matter should be disclosed by the Learned Lord in the way of ex culpation of himself, and not drawn from those papers, then he apprehended thcre could be no possible objection to the institution of in inquiry. He had to observe in the out set; that there was no Grand Jury appertaining, to the criminal law of Scotland ; that the Lord Advocate might, of his own motion, bring a person to trial ; but that an individual might apply to the Lord Advocate for his " Concourse," as it was called, and by this authority might bring a person to trial at his own instance.. This, however, was, on many accounts, a hazardous and expensive mode of proceeding. It would at once be observed by the House, that the Lord Advocate pos sessed great and responsible powers, and it would follow that it was necessary be should be able to shew that, in every in. stance wherein he exercised them, he had acted perfectly free from personal bias and . political feeling. It was the latter which would bo attributed to hint on the present occasion, and he would now proceed to state the circumstances out of which the imputation arose. A person of the name of William 141. Borthwick had entered into partnership with one Robert Alex ander in the trade of a printer, and particularly in the publi cation of a Newspaper called the Glasgow Sentinel. The part nership was afterwardi dissolved by mutual consent ; and on that occasion it was agreed that Alexander should be allowed to re. twin the partnership property, in consideration for which allow ance he was to give Borthwick security for a stipulated sum of money. lie did not perfonn his contract; and Borthwick there. upon raised an action against him, before the Magistrates of Glasgow, praying that Alexander might be decreed to perform his contract, and give security for the money ; or, in the alter. native, (and this was material to be borne in mind) that, failing this security being given, he might be allowed to resume possession of the property. The case was heard, and the Ma gistrates decreed that Alexander should give ti.e proper secu rity within six days •, and in default of his doing so, they au thorized him (Borthwick) to resume his property as prayed.— Indeed it was remarkable that it was relied upon by Alexander in his defence, that.Borthwick had not performed his part of the contract, by executing an assignment of the property to Alexander. This being the case, so far as it was stated, he would ask the House whether, under any circumstances what ever, Borthwick, on taking possession of the property, could be considered as committing a felony ?—(Hear, bear, hear !) And yet the case would materially be affected by the answer to this question. While the six days were running on, a corre spondence took place between the agents of Alexander and Borthwick, in the course of which the former requested time to perform his contract. This was refused, and notice was given, that Borthwick, in pursuance of the decree of the Magistrates, would take possession of the property. To prevent his doing .this Alexander caused Borthwick to be arrested for a debt which there was no doubt was made up for the purpose. The arrest took place on the 2d of March in the last year ; and on the 10th Borthwick obtained his liberation. On the morning of the 11th he, with two witnesses, went to the printing.oflice, where the property was; and finding that some of the desks had hat fresh locks affixed to them, he sent for a smith to force the locks ; but, in the interim he found the key which opened them. Now, when a man went to commit a theft, it was not often that be took persons with him for the purpose of being witnesses to his conduct, that he went in the face of open day, or that he sent for a smith to force the locks of the desks from which he intended to steal.--(llear, hear, bear I)—The plain theft, truth was, -that there was no eft, that ie transaction was a sort of quarrel growing out of op po s ite claims. Still further, it it could be thought necessary to destroy the charge of theft, he had to state that Borthwick complained to the Magistrates of Glasgow thin he had been obstructed in resuming possession of the property under their decree, However, the day after, Alexander lodged ii complaint before the Magistrates of Glass gow, charging Borthwick with having committed a felony, in taking possession of the property under the circumstances be fore stated. The Magistrates heard the complaint, and were so vatislied of its being groundless, that they discharged Borth wick without bail. Loll BINNING asked where was the discharge ? Mr. AIIERCROMBY resumed. Ile really did not expect to find the case met by questions like this. The Noble Lord asked where was the discharge ii Why, it consisted of course, in the man walking away, seeing that the Magistrates did not detain him.—(Cheers, and laughter from the Opposition.)—lf those who were to answer the present case intended to say that the Magistrates entertained the complaint, they would of course have to shew that the Magistrates either committed Borthwick find bail. Alexander, however, determined proceedings, and the papers were or to ordered continue him s to laid before Mr. Hope, the Advocate. This was on the 17th of March. Mr. Hope was apprized of all the circumstances, and it would be for the Learned Lord to !thew that he ought to have brought. Borthwick to trial under these circumstances, or to confess that he had neglected his duty by omitting to look at all the proceedings. Upon the case laid before Mr. Hope, that Gentleman wrote an opinion with which he (Mr. A.) had no particular fault to find, except that part of it which stated that the charge would be more relevant If it included other persons besides Borthwick. He (Mr. A.) confessed he did not see how a crime was more or less a crime by being committed in association with other persons besides the prin. cipal. Some time afterwards other papers were laid before Mr. Hope, and a correspondence took place between hint and the Crown Agent, in the course of which Mr. H. desired that " no time should be lost," as it was desirable the case should be brought to trial on the approaching Circuit. Anti here it was to be remarked, as a most important circumstance, that between the time of the first opinion given by Mr. Hope, and that of this correspondence, the unfortunate meeting had taken place a tween Mr. James Stuart and Sir Alexander Boswell, which Ted to the death of the latter. He (Mr. A.) held the Learned Lord to be responsible for the acts of his Advocates Depute, mite appointed and removed them at pleasure. He thought it proper to mention this bec a use it was pretty well known that Mr. Hope had desired to take the responsibility of his own acts upon himself. When the subject was brought before the House last year,_ he (Mr. Abercromby) visited to get at all th e f acts , and for that pdrpose had included the Advocates-Depute in his motion; but as it now appeared that the Learned Lord bad been informed on the stll of April of all that had been done, had approved of, and adopted it, and that the conduct most complained of had taken place after the Learned Lord had been apprised of the case, he thought it fair and Parliamentary to treat that Learned Lord as the re. sponsible person. Borthwick was apprehended at Duntlee.on the 3d of April. It had been suggested, (but of whom it did not appear), that lie was about to set off' for America. He was put in irons on his way from Dundee to Edinburgh ; and on the 4th, was committed to Edinburgh jail. He offered to give hail, but it w as re f use d ; he was not alion•ed to have any communication with his counsel or agents until he had been fir* examined. H a d he committed murder, could be done than this.-(Hear, hear !)--He was afterwardsothing severer n taken to Glasgow to be tried ; and when - he was brought up for trial, Mr. Hopo, in the language of the law, " deserted, the diet py o loco et import," which, in plain English, meant " I will not try you now ; but I will try you when I pleese." Mr. I lope then offered to liberate hint on small bail; but he was advised by his counsel to reject this, anti remain, for the pre sent, in custody; because by giving bail, he would be liable to have the charge remaining over his head, while by remain ing in custody, he would entitle himself to be discharged, in eus course of law, for want of prosecution. He was therefore, on the 4th of May, recommitted by the Court to custody, on the prosecution of the Lord Advocate. Mr. Hope afterwards sent a letter to him (Mr. A.) stating that Alexander had, on that 4th of May, determined to prosecute Borthwick at his own in stance. A. correspondence took place between the Crown Agent and Alexander's Agent, in which the latter desired to know whether the Lord Advocate intended to prosecute Borth wick at the public instance; and being answered in the nega. tive, he desired to have the papers handed to him that he might do so himself; and the papers were accordingly sent to him. The question then which he bad to put to the Learned Lord was, " Did he discharge Borthwick out of custody, having de teemined not to go on with the prosecution ?" He did not ; and Borthwick was kept in custody on the prosecution of the Learned Lord until the 4th of June, when he was committed to custody at the instance of Alexander. It was no answer to the case to say that it must be immaterial whether Borthwick was kept in custody at one prosecution or the other. It was a very material difference ; as Borthwick could bring no action of wrongous imprisonment for .the time he was detained at the instance of the Learned Lord. On the 25th day of May Borthwick received notice of trial I and it was remarkable that Mr. Stuart also received his notice of trial on the same day. On the 10th day of June, Mr. Stuart was brought to trial, and acquitted ; and, forty-eight hours afterwards, Borthwick was discharged untried, and had never been brought to trial to that moment.—(Hear, hear, hear !) Under all these circumstances, he asked whether there had not been every possible legal severity . inflicted upon this man ? Here were the facts as to Borthwtck's case ; but he could not forbear noticing the connection between his case and that of Mr. Stuart. He should, of course, be told that there was no connection between the two cases; but he should endeavour to show that there was. He admitted there could be no doubt whatever that Borthwick's desire to obtain the papers from the desk of the printing-office, was to protect himself from the effect of the prosecutions which had been commenced by Mr. Stuart and others against himself and his partner for libels published in their paper. The only way to conciliate Mr. Stuart was to give up the manuscripts of the libels, in order that the author might be discovered. No doubt whatever that these papers were brought to Mr. Stuart by Borthwick's agent; and that this had led to the fatal meetin between him and Sir A. Boswell. It had been said that hr. Stuart had resorted to. unjustifiable means to obtain possession of these papers ; but nothing to this effect appeared in evidence on the trial. The indictment stated Mr. Stuart's obtaining the papers from Borthwick, in meditation of a duel with Sir Alexander Boswell ; and if this could have been proved, it might have materially injured Mr. Stuart. The only object of that Gen tleman, in desiring to obtain the papers, was to discover the author of the libels against him. There was evidently a close connexion between the two trials. and he apprehended it would be incumbent on the Learned Lord, in consequence of this cir cumstance, to :thew that he had been actuated by upright mo tives, and without any desire to oppress Borthwick. It was impossible to imagine any course betfer calculated, in all its parts, to affect by prejudice the individual who was the object of it. No man could consider the two cases to be distinct, and the Learned Lord must be the inost unfortunate man in exist ence, if all these coincidences were the effect of chance. The powers of the Learned Lord were undoubtedly great; but if any man could be confined under them for so great a length of time, and the Learned Lord not held accountable, it must be highly subversive of the personal liberties cf the people of Scot land. If such a case could occur, and not call down the in dignation of that House, then those liberties would be held only at the discretion of the Learned Lord. He saw some few of those Gentlemen in the House who had been active in the late inquiry into the conduct of the Attorney-General for Ireland. No one, he apprehended, would put the treatment of the Dub lin rioters, aggravated as they chose, in competition with the sufferings of Mr. Borthwick. He trusted, therefore, that the Gentlemen who had been forward in the case he had alluded to, would be ready to deal equal justice to Scotland. Wishing the House to sanction the view he had opened to them of this matter, he should move,—" That it is the opinion of this House, that the conduct and proceedings of the Lord Advocate of Scotland, in the case of William Alurray Borthwick, late printer, of Haddington, were unjust and oppressive:" The LORD ADVOCATE assured the.. Hon. and Learned Gentleman who had just sat down, that it was with peculiar satisfaction to himself that he at length saw this case before the House. The delay which had occurred so much to his preju dice, had been accounted for, and therefore of that he should not complain ; but the fact upon which it was grounded, viz. , the late production of the papers was in no way attributable to him, as they were in the Secretarynf State's Office at the latter end of last Session, and upon finding they had not been produced, he made inquiry into the cause, and had been told it was owing to the Usher of the Black Rod having summoned the House earlier than was expected. This case was new to the House, for it had been brought before it last Session, in a man ner of which he then complained, and should ever continue to complain. He alluded to the Hon. an d Learned Gentleman having made the affair of Borthwick the main topic of his state ment, without his (the Lord Advocate) having been at all aware of his intention to do so. In consequence of this, he had been taken unprepared with a knowledge of any of the facts ne cessary to his defence ; whereas, at the very time be c ould have ; a I bßuit he le had had almost all the papers now before the House. He could at that tim e h ave to ld the Hon. and Learned Gentleman that he had given an o pi n i on aga i ns t the proceedings of which he com plained,thatconfidence an d d irect i ons t h at t h ey should be stopped. lie might have laid th e w h o l e bl ame on his Honourable Deputy in Scot landw in him asresns w ib h l i e ch for assuredhis con duct,himthat lie had maintained no prosecution without adequate grounds. As lie was . not able to state the case of his Honour able Deputy, he preferred taking th e w h o l e bl ame on him self. T h i s circumstance should have for ever remained un known as far as he was concerned had not the letter of that Gentleman been the means of making it known. When the Hon. and Learned Gentleman was in Edinburgh before the Sea. sion, his Friends there, as well as the station which his young Friend now occupied might have informed him that there was some misconstruction of his conduct. But, as it was, he could not .but regard the course that had been taken as done with a view to put down and crush the rising fame and talents of his young Friend.—(lltar I from the Opposition.) . —Hon. Gentle men might cheer that sentiment, but he was convinced there were many disposed to put that uncharitable construction upon it. He was, however, glad that it was now before the House.— The Honourable and Learned Gentleman had volunteered to prove, that in these proceedings the law had been perverted, and for bad purposes, and he had confidently put it to the House whether he had not redeemed his pledge.—The House had now all the evidence before it,- and he did ex pect that even upon his own statement they Would decide that he was not justified in such a conclusion. Even though the powers of his office were unconstitutional, it would be his bu siness to assert and maintain in the discharge of his duty. But the fact was, that the Lord Advocate of Scotland had no legal powers whatever as such, beyond those of Public Prosecutor. lie was a Justice of Peace only because his name was Inserted as such in the Commission for every county. When a magi. strate felt himself in difficulty, it was customary for him to ap ply to the Lord Advocate for advice, and he (the Lord Advocate) should never refuse to give it. It was, perhaps, optional on both sides, norwas the Magistrate bound to act upon the advice given, for it could not absolve him from any responsibility attached to any of his acts. But even as Public Prosecutor, his powers had been magnified beyond their real extent. I t was certainly true, as had been stated, that in Scotland there were no Grand Juries, excepting in cases of treason ; but the security against an undue exercise of the powers of the Lord Advocate in that capacity was, that he would not dare to prosecute any indivi dual without adequate grounds. As aproof of that, his prede cessors had well used their power in this respect ; by a compa rison with England over the whole period, it would be found, that out of 409 persons tried, 4:: only were acquitted; and that for 480 persons transported in England, there were 111 on ly in the same time for Scotland. Having stated this much pre liminary, lie would come to the subject before the House. With respect to the appointment of the Solicitor General, he had none of the merit of that. The HoUse would bear him out in the use of the word merit, having had an opportunity ofjudg ing of his talents by his appearance at their bar; and he was happy to say that nothing growing out of that occasion had interrupted the confidence which in Scotland, the public entertained in him. With regard to Mr. Alexander, lie had nothing to do with him. It was with the public conduct of his deputy he had to deal. It appeared that that case originally came before Mr. Hope, from the Procurator Fiscal, or County Prosecutor, of the place where the transactions were alleged to have occurred. Application had been made to a Magis trate relative to certain patiers forcibly taken away by Borth wick, upon which an order was made for their production. This order was repeated three times, before it appeared that the papers had been taken to Edinburgh in Mr. Stuart's car riage. It was true that the Magistrate did not at that time commit ; but. it was equally true, that if the prosecutor did not ask it, it was not the practice in Scotland to commit. It was in consequence of an application to the Sheriff of Edinburgh on the subject, and the Procurator Fiscal entertaining doubts as to nadring a public prosecution of it, that Mr. Hope was ap plied to for his advice. His opinion was, that it must be taken up by the Public Prosecutor; the House had it recorded amongst the papers on the table, and as it was a private opi nion, it should be received with every degree of favour. It was also to be observed, that this was Mr. Hope's expressed opinion long before the duel took place, consequently he could receive no bias from that. In conseconce of this opinion, the proceed. ings went on, and a variety of papers were afterwards laid be fore Mr. hope. Upon reference to the papers, it would be seen that the statements of Borthwick, as to the recovery of the documents in question, were full of falsehood. There was another circumstance deserving consideration attendant on the recovery of these documents. It appeared that Borthwick was liberated from confinement upon a false statement made to the Town-Clerk that his presence was required in Court as a witness. • Instead, however, of that turning out to be the fact, he was that same night at the Tontinz of Glasgow with Mr. Stuart and his agents, planning the recovery of the do cuments. In execution of their plan, it appeared they went to the office of Mr. Alexander, and finding no one on the pre mises but a boy of twelve years of age, they then, by the use of picklocks made themselves masters of the papers. Borth wick himself said that he was taken out of prison, and his debt of fifty pounds paid for that purpose, in order to take away these papers. Thus there was an evident conspi racy on the part of law agents and others 'to commit the crime. A crime he called it, because it was a theft. The do cument sought was one in possession of Mr. Alexander after the partnership was ended, and was taken from his private desk by the use of _picklocks, along with many of his private letters. It was said that this man Borthwick, went to resume possession of his property, instead of which he in reality stole these paws. He should not stop to inquire whetter such an act was theft in the eyes of English lawyers—it was enough for his case, and for Mr. Hope's justification that it was so viewed by the law' of Scotland ; for it was as a Scotch lawyer he was consulted. To constitute theft, he appre hended it was sufficient that papers were feloniously taken with out the consent of the owner. He knew it would be set up on this occasion that the one document sought was the pro perty of Borthwick ; but admitting that, for the sake of argument, the case was strong enough on the fact of his having forcibly broken open the private depository of the secret and confidential papers of Mr. Alexander, and therefrom taken away many articles independent of what might be viewed as the property of the joint comp Any. But all he had to sliew was, that, in that stage of the business, there had been a prima facie case to go befor e a J ur y, an d that there was, he humbly submitted, on the facts he had stated. With regard to the question of bail, it was long after the duel that Mr. Hope had directed bail to be taken. When the Hon. and Learned Gen- deman had last made his state , re it to the house, lie had repre sented the carrying of Borthwick from Dundee to Edinburgh to be imprisoned, as oppression and cruel conduct, at the instiga don of the Crown Counsel. The Heim would judge for it self of the Hon. and Learned Gentleman's statements, when it learned that it was at the request of Borthwick himself that he had been conveyed to Edinburgh, in preference to the nearest prison. Ile could shew that after his examination there, it was honestly and sinmely thought that he ought to be sent to trial, and that it was accordingly pushed on. He was sorry that he had not been tried, for it would have saved much dis cussion-in that House; but why he was not tried was the ques tion then before them. The Hon. and Learned Gentleman had told them that it was in the power of him (the Lord Advo cate') to have laid evidence before them, in elucidation of that point. The House would do him the justice, however, to re member that lie (the Lord Advocate) had expressed his wil lingness to lay that evidence before them, but that the Right Hon. Secretary of State for the Home Department had op posed his doing so, on the public principle that it was not right to make public the confidential correspondence of the Lord Advocate of Scotland in London, to his Deputy in Edinburgh. If a theft had been committed, Mr. Stuart must have been considered and treated as an accessary. Under this view they determined not to proceed at that time, because it would have prejudiced Mr. Stuart's trial. It was subse quently de:ermined that the proceedings should be stopped. 'With regard to the after proceedings at the suit of the private party, the King's Counsel had nothing whatever to do in the business, and he himself could have no controul over them. He would submit to the House that no opinion could be enter tained prejudicial to him. With regard. to Mr. Hope he was confident that many of his friends would be ready to justify his conduct, and to shew that he had only acted with the pro per discretion entrusted to him by his office. To those who did not know him, the charges of the Honourable and Learned Gentleman would make it appear that ha had prostituted the power of his office. Such a charge he rejected with the feel ings it merited. He referred to his conduct in the many poli tical trials which had taken place in Scotland since he had been in office, as it refutation of any such aspersions. Let the House come to any division it might, be should still have the consoling reflection of having ,acted from. the purest motives ; and he could now say, that if the same circumstances were to transpire, he should, so help him God, act exactly in the same manner. Having now stated his case to the House, if it were necessary he should retire—(" No, no,")—but, at all events, he should meet with confidence the acquittal of the House.—( Hear !) Mr. J. P. GRANT said that he should feel it his duty to de cide in this case as impartially as if he were sitting as a Judge upon the Bench. He had heard a most powerful accusation, and a defence which was altogether wide of the question ; and he should not therefore, form an opinion upon what had passed in that House. The Hon. and Learned Gentleman then went into a statement of the power and duties of the Lord Advocate of Scotland, and contended that that officer could not depute to another the power of putting a subject on his trial. Yet the Learned Lord, according to his own statement, had allowed the prosecution to be continued, upon the opinion of Mr. Hope, and contrary to his own. With regard to the charge of felony, he contended that it was iivossible for any man who knew any thing of law to say that there had been a theft committed. He would rest the whole case upon this point. Whoever heard of a man committing theft upon himself ? A man could not steal that which was his own, and in partnerships the property is common. Then how did the Learned Lord meet the charge of detaining Borthwick in pri son after the proceedings were stopped ? Why, that it was done by mistake, the Crown Solicitor supposing there was a charge against the prisoner at the suit of a private party. %Vas it to be received as a defence in that House, that a mostman was kept in prison by mistake?—(Hear, hear !)—Upon a deliberate view of the case, he could n ot refrain from voting that censure which justice demanded. I t was with r pain that the he gave a criminatory vote in which the Learned d w Mr. HOME DR(.ISIMOND said, that the Hon. and Learn . ed Gentleman who bad just sat down , c ommenced his s p eech nad accused bee np fully arty, madeb u l t ta c h le l ar h b e e d. belief that the accusation had out 'as his ia u a tandes by an attack upon the powers of the L ord Advocate of Scot land, which was very common upon such occasi o n s. But he had made the extraordinary accusation in support of that attack , that the Learned Lord had failed to exercise them. He con tended that it had always been the practice for the discretion of putting a man on his trial or not, to ,be placed in the hands of the Lord Advocate's Deputy. It necessarily must be so, during half the year while the Lord Advocate was attending his duties in Parliament, all accused persons must remain in prison while the precognitions were sent up to London, and considered by the Learned Lord, and then returned.—(Hear !) —lie would ask the Hon. and Learned Gentleman, if this were the way in which he desired to protect the liberty of the sub ject.—(Hear, hear!)—lse con .dered the Hon. and Learned Gentleman to have put the case upon a proper issue, when lie rested it upon the question of the theft having been committed. To him it appeard that all the circumstances which constituted theft were present in this case. It was impossible for any man to doubt that a theft was committed, for independent •of his breaking open the disk and disposing of the property for a valuable consideration, he also carries! 'away the private pro perty of Mr. Alexander. There could be no doubt of the mala fide, on his part, as his conduct had exhibited bail faith from beginning to end. He got out of prison in the first instance by practising one of the grossest falsehoods that ever was invented. Through the means of one Macgregor, who, he was ashamed to say, was in the profession of the law at Glasgow, he obtained his release by applying to the Judge for leave to go to Edin burgh to give important evidence in a cause which was to come on the next day, ).he whole of which was a falsehood. In fact the business was begun in falsehood and ended in theft; and he would take that opportunity of saving that he very much re gretted to see a Gentleman of Mr. Stuart's character and con nections concerned in such a transaction. Mr. KENNEDY said, that if the Learned Lord had not time to perform the duties which his office imposed, and also to attend in his seat in Parliament, he had better go home and let another and a responsible officer take his seat in that House. —(llear, hear 1)—It, as the Hon.. and learned Member who spoke last bail argued, the charge of theft could be made out, how did that support the opinion and the conduct of the Lord Advocate in not proceeding with the prosecution.—(Hear He was convinced that if there was felony any where, it was on the part of Mr. Alexander who removed the locks, and put fresh ones upon the partnership property. It appeared to him that the Learned Lord felt the weight of this accusation to be such as he could not get rid of, or he would not have made a statement so disjointed and incoherent as that which the Hcavei had heard. The Hon. Gentleman, argued at some further leitgtit that the House was bound in duty to carry the motion. Lord BINNING said that the praise was, perhap., not generally aware of the interest he bad in this question as being the near relation of one of the accused parties. Ile was under every disadvantage in having to treat of a legal question, but lie did not fear beinp able to sliew that his Honourable Friend and Relation, the Solicitor-General for Scotland, however he might have erred in judgment, if there was error, had not acted with bad faith, or from any impure motives. He supported the right of that House to interfere in cases where there was oppressive intention, but he did not think it well constituted to judge of the everyday duties of Law Offliers.---(Hear, hear, from Mr. M. A. Taylor.)—He knew there were many great and able lawyers in the House, and amongst them was the Honourable and Learned Gentleman who then interrupted him ;—(A laugh.)—but they were not all so able to judge upon points of Scotch law as the Chairman of the Doncaster Quar ter Sessions. With regard to the felony, he h a d a s trong case. 1 1 . :h w e as A n d o v t o a cat b e a - i G la e b n l e e ra o l, fren t c h e e . S T o h li e cito A r d - v G oca en t e e ra G l, d L o l rd him self Chier Justice Clerk, thought it a felony. Th e l a tter declared did not think lie had a bad case to try. He had no doubt en a e n m of the felony, and the Solicitor-General was anxious to bring Borthwick to trial. The Solicitor General first thought of admitting Borth w i c k to b a il, b ut a f terwar d s a lt ere d - his mind, because several vessels were in the port of Dundee, by one of which it was probable he might wish to escape to America. It was known he had that intention, as he was seen skulking about Dundee. With respect to handcuffing the person, it was always customary to handcuff' men who show a disposition to commit violence. He became obstreper ous, contumacious, and ultimately pugnacious. The Noble Lord knew the Judge Advocate had great responsibility. The Solicitor-General might be right in his judgment, but he did not think that Officer had incurred the least censure. His hope was, that the House would- not visit with severity the error of a young man, and blast his fame as a lawyer. Mr. M. A. TAYLOR said, he was far from meaning any offence when he cheered. He was not aware that the Noble Lord considered him a good Scotch lawyer, but the N oble Lord thought him a good Varlianientary lawyer, for the Noble ~~ Y