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

"

in the case,
text for int
wide by y'
Whichtlraf
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'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* and
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/li.
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 %%ever,
which you promise to agitate in Parliament—the
discuaioa of which I feel no desire to anticipate, ani
have no'reason to dread. Ido not, therefore, mean
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 inditii.
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 and tii case of Borthwick,, on eeltdciriewaa '`eonstructive
you) . atelt thersaffel:; niFgle mode' n your "tape* t 6 insist, 'la ordetio ere a colour to tated agair
illliedi
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.,