placed in England after a bill ignored. | case so clearly made out by his hon, and He ought not to have been subject to any learned friend. further proceedings. But the deputy chose to send a remonstrance, forsooth. He presumed, to withhold obedience to the decision of the learned lord, whose responsibility and character were alone at stake. He had actually kept the man in prison, until he should find whether the arguments he had to bring against him would not have the effect of convincing the learned lord. Not only this: he had taken Borthwick to Glasgow, and prepared measures to put him on his trial, against the instructions which he had received. The letter of the learned lord again determined that there was no case for trial. Again, after this second determination, the deputy had put in a petition before the magistrates, stating, that in his opinion the lord advocate could still order a prosecution; and again he succeeded in incarcerating the man. And, after all, the learned lord for the third time determined, that there was no case for a prosecution. This was upon the learned lord's own shewing. What would any man in that House say to so monstrous and oppressive an abuse of authority by his deputy? The learned lord had left the House no alternative, but to visit on his head the justice which the law demanded. He agreed with the learned lord, that the question was, whether justice had been perverted to bad purposes? That justice had been perverted, the learned lord him self admitted. By his own allegation of the facts, the purposes could not be otherwise than bad. The learned lord would have it that a case of theft had been made out sufficiently strong to justify Mr. Hope. Now, he defied any lawyer in that House to say that any thing like a case of felony had been made out. Borthwick had taken possession of what he deemed to be his own property. The taking was of the very same kind by which actions of trespass were brought to issue in this country. The whole proceeding originated in a dispute about property between two partners. The learned lord talked of a theft committed by a company. What did he mean? Was there ever such a thing heard of as a partner robbing another partner? He remembered a trial, indeed, of a woman for stealing the goods of her husband: but there was no precedent of such a theft as that conjectured by the learned lord. He thought it was quite impossible for the House to pass over the Mr. Home Drummond said, he had never heard a more singular attack than this, for a grave accusation had been made against the lord advocate, that he had not performed all the numerous duties of his office in person. Now, he thought it would be clear to any one who knew the multifarious duties of the learned lord, that it was impossible for him to deliver his opinion on every case. The learned member was a friend to the liberty of the person; but did he forget, when he required the opinion of the lord advocate on every case, that the effect would be to imprison men for a longer time than was necessary, in order to obtain that opinion? Very few cases res quired much legal learning or experience; but when any such did occur, the solici tor-general acted for the lord advocate, when that officer was absent. As to the charge of demanding excessive bail, it was known that moderate bail had been required but had not been put in, the party, for some reason or other best known to himself, declining to take advan→ tage of it. The lord advocate had been accused of deserting the Diet pro loco et tempore, and some gentlemen seemed to have mistaken that for an abandonment of the proceedings, when in fact it only meant delaying the time of trial, and such delay would be granted on the motion of any private individual in a similar case. It had been said, that the interlocutor was a warrant justifying Borthwick in entering and seizing the property; but this was a mistake, for an interlocutor was only a preliminary step to a warrant, and was merely an abstract finding of a right in law, on which a warrant would sub. sequently issue. It should be remembered, that throughout the whole of the transaction, Borthwick could not have acted ignorantly, for he had received the advice of no less than five legal gentlemen. What had he done on gaining this interlocutor? Had he acted as a partner when he returned to the house? He had acted injuriously to the interests of those whom he called his partners; for he had stolen their property after breaking open their desks, and from the sale of that property had gained the sum of 50l. which he had appropriated to the payment of his own private debts. He had carried off the property of Mr. Alexander; and could any member give such No. conduct any other appellation than that of theft? Gentlemen had spoken of felony and misdemeanor, and had used these terms, so familiar in the law of England. Now, he wished the House to understand that the law of Scotland knew of no such technical distinctions, but classed both the offences under the general name of crime. The bad faith of Borthwick was evident throughout the whole of the transaction. In order to get out of gaol he had sent Macgregor, an agent of his, and a practiser of the law in Glasgow, to the proper magistrate, who had represented that he (Borthwick) was a necessary witness in a civil cause to be tried on the following day. What would gentlemen say to attorneys or counsel in this country applying privately to a judge in such an affair? And yet this had been done by Borthwick, and the consequence was that the magistrate believed the representation and liberated him. In short, the whole transaction had begun, continued, and ended, and had been a disgrace to all the parties concerned in it. Mr. Kennedy said, he was surprised at the conclusion to which the hon. member who spoke last seemed to have arrived. He certainly did not wish to overload the lord advocate with official duties; but he thought that Scotland had a right to demand, if not his opinion on every case, at least that he should exercise some discretion on matters passing through his office. Scotland was not to be told, because the characters of member of parliament and lord advocate were united in one person, that the duties of one should be unperformed, while the learned lord discharged those of the other. If it was impossible for him to fulfil the functions of both, he should return to Scotland, and another person should fill his situation in that House, and thus leave him at liberty to perform those duties so requisite for the proper administration of justice in Scotland. It had been stated by the hon. member opposite, that low bail had been offered. But, supposing this to be true, what did it prove? Why, that the law had not been properly administered; for, by the law of Scotland, the offence with which Borthwick was charged was not bailable. The hon. member had stated the conduct of Borthwick to have been highly criminal: and yet the lord advocate himself had stated, that it was not a fit case for prosecution, and did not in any way approach to felony. Indeed, the conduct of Alexander seemed to be of a much more criminal nature. The way in which Borthwick had been carried in irons to Edinburgh, and denied all access of friends; and finally the deserting of the diet in Glasgow, presented a picture of indefensible oppression. Lord Binning said, he rose with much anxiety and solicitude. A near relation of his was among the parties interested, and he trusted that the House, notwithstanding the lateness of the hour, would think him justified in prolonging, for a short time, the discussion. The house would recollect, that when the hon. and learned gentleman opposite brought forward this question last session, the motive imputed to the law-officers of the Crown in Scotland, was mala fides throughout the whole of their proceedings, from the origin of these transactions to the fatal catastrophe which ended in the death of sir Alexander Boswell. Now, how did the facts stand, as the hon. and learned gentleman had disclosed them that night? Why, that his learned friend, the lord advocate of Scotland, knew nothing of the quarrel between sir Alexander Boswell and Mr. Stuart, until the night when every body in Edinburgh knew it was a matter of public notoriety, and that the legal opinions which he had given of the documents before him, had been pronounced eight days before. That his learned friend, Solicitor General Hope, might have acted with indiscretion, (which he denied) was a different question; but that, in any part of these transactions, he had acted with mala fides was not to be sustained by any dispassionate view of the case; and yet that was the main gist of the hon. and learned gentleman's charge. Into a disquisition of the subtilties of the law of the case, he did not profess himself competent to enter; nor did he think that House at all times the best tribunal for settling such points [Cries of Hear]. The hon. and learned chairman of the quarter sessions of Doncaster (Mr. M. A. Taylor), who manifested a disposition to interrupt him, was perhaps perfectly competent to instruct them upon points of Scottish law; and the House would no doubt have the benefit of his opinion. It was singular enough that he (lord Binning) should have been challenged by the hon. and learned gentleman opposite (Mr. J. P. Grant) to hazard an opinion upon the legal part of the case. He knew that the He could allow for the warmth of feeling of the noble lord; but he had talked of this as a question of Scotch law; whereas Scotch law had little to do with it. The House was not debating on Scotch law, but on the invariable principles of justice, on which every man was competent to form his own opinion. After a brief reply from Mr. Abercromby, the House divided. Ayes, 96. Noes, 102. Majority against the motion, 6. List of the Minority. hon. and learned gentleman was a member of both the legal professions, English and Scotch; and he also knew, that, in his speech that night, he had strangely mixed up and confounded the principles of both. Now, he was not prepared to say whether this or that act was felony according to the Scottish law. Whether breaking open a partner's desk and carrying off his papers amounted to that offence, it was not for him to assert; but he might be permitted to say that, according to British law, such an offence, to say the least of it, was a trespass, and punishable in some shape or other. Why, then, might it not be a crime in Scotland? Or what was there absurd in SolicitorGeneral Hope entertaining that opinion? There were higher authorities than the hon. and learned member, for asserting, that this offence was penal; for the Lord Justice Clerk had distinctly held that it was not bailable. His only object in pressing this topic, was to show that Solicitor General Hope had not travelled out of the course of his duty; and this was, he thought, apparent from a dispassionate consideration of the whole case. The noble lord then recapitulated the whole of the proceedings in Borthwick's case-and the manner in which Mr. Stuart got possession of the papers; and contended, that Borthwick, who was represented as being so immaculate a person, had acted throughout in a manner utterly indefensible. Borthwick might have been released on bail if he pleased; but it answered the purpose of those concerned better, that he should secure the reputation of a martyr, and form the ground-work of such a case as the present against the law-officers of the Crown. With respect to his hon. and learned relative, he was a man incapable of an act of deliberate injustice. He had acted through the whole proceeding in perfect conformity to the law; and even if he had been guilty of an error in judgment, the House of Commons would, he thought, be the last assembly to blast the reputation of a young and rising man, by agreeing to such a resolution as that which had been proposed by the hon. and learned gentleman. Mr. M. A. Taylor said, he had read the whole of the papers, and those who knew him better than the noble lord, would be satisfied, that he would not give any vote to inflict pain or censure on an individual, were he not satisfied that it was deserved. VOL. IX. Abercromby, hon. J. Grant, J. P. 2 Y Mackintosh, sir J. Monck, J. B. Philips, G. Rickford, W. Robinson, sir G. Russell, lord J. Scarlett, J. Scott, James Sefton, earl of HOUSE OF COMMONS. Wednesday, June 4. BREACH OF PRIVILEGE-COMPLAINT AGAINST "THE MORNING Chronicle," FOR REFLECTING ON THE MEMBERS OF THE HOUSE.] Mr. Jones rose to call the attention of the House to a paragraph which appeared in the "Morning Chronicle" of that day, reflecting on the proceedings of that House last night, without, however, intending to found any harsh measures thereupon. The paragraph to which he alluded was as follows: The small majority of six last night in a House of 198, is perfectly decisive of the sentiments of members with respect to the abominable proceedings in the case of Borthwick. An analysis of that majority will be a curious exhibition. We should like to see the names: they must be most valuable partisans: they are evidently not men to stick at a little." He begged to call the attention of the House to the nature of the motion. It was not a motion of a general nature, but it was limited to a most severe censure upon the lord advocate. It called upon the House to declare, that the conduct of that learned lord had been unjust and oppressive. He did not mean for one moment to say that the proceedings which had taken place against Borthwick were not unjust, oppressive, and illegal; and if the motion had been directed against those persons who, in his opinion, were the authors of those proceedings, he would have voted for it but, having perused the papers which had been laid before the House, and listened to the charge which had been made against the lord advocate with as much attention as possible, he must confess The Speaker put it to the House, whether the course in which the hon. member was proceeding was consistent with its orders or with its dignity. Nothing could be more clear than that any notice of the proceedings of the House was a breach of privilege; but would the privileges of the House, or its dignity or character, be maintained by an explanation of the nature of the motion, and of what would have been the hon. member's conduct if the motion had been differently framed? He would put it to the hon. member himself, whether, instead of maintaining the dignity of the House by entering into an explanation, amounting almost to an apology, he was not in reality lowering it? Mr. Jones acknowledged that he felt the difficulty of his situation. He should be sorry to take any harsh proceedings against the editor of the paper, but having called the attention of the House to the circumstance, he hoped he should not be considered out of order in stating his reasons for doing so. The Speaker repeated what he had before said, as to the paragraph in question being a breach of privilege. It was in the breast of the hon. member to exercise his discretion under the circumstances of the case. Mr. Jones said, he had felt himself called upon to notice the paragraph, because he was one of the majority which the editor had alluded to, in the terms which he had read to the House. In voting as he had done last night, he hoped he had acted conscientiously, and according to the opinions of the independent body of electors whom he represented. He did not come down to that House as the partisan of ministers or of the Opposition. It was said, that those who voted in the majority last night would not "stick at a little." That expression admitted of two inferences. If it were meant, that the majority would not be easily prevented from supporting a good and praiseworthy motion, he had no objection to it; but if it were intended to insinuate that they would not hesitate to vote for an improper measure, he would say that it was calumny. He did not intend to call upon the House to take any proceedings against the editor of the "Morning Chronicle," whom he believed to be a very respectable gentleman. He moved, "That the said Newspaper be delivered in, and the said Paragraph read." Mr. R. Martin seconded the motion. Mr. Hobhouse hoped that the hon. member would, upon consideration, see the propriety of acting upon the suggestion which had proceeded from the chair. There would be an end put to all public business, if the House were to be called upon to interfere in every case in which hon. members might conceive themselves to have been improperly censured. Every member must have found observations directed against him in those papers which were opposed to him in politics. Not a single day passed in which hon. members did not find their conduct ten million times more misrepresented than that of the hon. mover was in the paragraph which he had noticed. It really would be preposterous to found a motion on such a passage. Mr. Canning hoped the hon. member would not press his motion. In cases where an individual found his own conduct grossly misrepresented, it was very natural that he should take any means of righting himself; but great inconvenience would arise if every member forming one of a majority against which reflexions had been made were to take up the time of the House by explaining his motives, and, in fact, re-debating the question upon which he had voted. He hoped that the hon. member, having satisfied his own nice sense of honour, would allow the subject to drop. Mr. R. Martin said, he would not second any motion which was preposterous. He was surprised the hon. member for Westminster should call any motion which was a breach of privilege preposterous. He (Mr. M.) thought that he could not refuse to second a motion which was a breach of privilege. To call the motion preposterous was a preposterous expression. The motion was then withdrawn. LAW OF SETTLEMENT.] Colonel Wood rose and said :-Sir, in rising to explain the resolutions with which I shall conclude, I feel I ought to apologize for venturing to embark on so difficult, so delicate, and at the same time so important a subject; and certainly I should not have done so, had I not been encouraged by the assurances of many gentlemen, that they consider the plan proposed for ameliorating the Law of Settlement the most practicable plan that has been suggested for the consideration of the House. Neither, Sir, should I have intruded myself on your notice, if I had not long felt convinced, that this was a subject intimately connected, not only with the comforts, not only with the happiness, but with the liberties of the great mass of the British population. In order to make this subject familiar to many gentlemen who may not have looked into all its details, it is necessary that I should shortly recapitulate the different acts of parliament, by which the settlement of the poor are at the present day regulated. But I must first observe, that with the 43rd of Elizabeth, the great foundation of all our poor-laws, I find no fault. That act, by the provisions of which the wants and the necessities of the poor are administered to, I consider a charitable and humane statute; and, notwithstanding what political economists may write of it, I believe, when well administered, it will secure blessings and happiness to any country that may have humanity to adopt it. But, Sir, in the 43rd of Elizabeth, not one word is to be found relative to the law of settlement. In the early part of that queen's wise reign, an act passed, the 14th of Elizabeth, directing that poor persons should be removed to the places where they were born, or most conversant for the space of three years next before;" and, by the 39th of Elizabeth, "poor beggars were directed to be sent to their last dwelling, if they had any, if not, to the place where they last dwelt, by the space of one year.' It is of importance for the future consideration of this question, that the House should bear in mind this lastmentioned statute. It was passed at a time when the condition of the poor was forcing itself on the attention of the legis lature, and at a time when provision was about to be raised by compulsory assess ment for their maintenance. In this state remained the law for upwards of sixty years; and it was not until the 13th and 14th of Charles the 2nd, that an act passed, laying the foundation of the present Laws of Settlement. Now, Sir, I beg to call the attention of the House to the preamble of this ill-fated statute. The preamble states, "That by reason of some defects of the law, poor people are not restrained from going from one parish to another." Now, Sir, it is of this very restraint that I complain. It has been this locking up the poor in their respective parishes, the not permitting them to move from parish to parish in search of work, the preventing their carrying to the best market the only thing a poor man has to carry to market, namely, his labour; that much of the evils of which we now complain, have originated. Sir, the 13th and 14th of Charles the 2nd, made a violent infringement on the liberties of all the lower orders of people; it enacted, that all poor persons coming into a parish, and liable to become chargeable, might be removed out of it within the first 40 days. Sir, cruel, arbitrary, and shortsighted as this enactment undoubtedly was, it was infinitely less cruel, less arbitrary, and less unjust to the poor man, than some of the enactments, relative to the settlement of the poor, that have followed it. It is true, by the 13th and 14th of Charles the 2nd, a poor man was liable |