Erskine's speech for Hardy (whose case was very critical, and the first one tried,) is one of the most splendid specimens of popular juridical eloquence on record. Owing to the running contests on points of law and evidence, constantly kept up while the trial went on, he lost his voice the night before he was to address the jury. It returned to him in the morning, and he was able to crowd seven hours full of such oratory as is rarely heard in our day. He regarded Hardy's acquittal or conviction not only as the turning point in the fate of his eleven associates, but as settling the question whether constructive treason should for long years track blood through the land, or its murderous steps be now brought to a final stand. He made a superhuman effort for victory, and achieved it. Profound as was his legal learning, eminent as were his reasoning faculties, classical as was his taste, transcendent as were his oratorical powers, all conspiring to place him not only at the head of the English bar, but to rank him as the first advocate of modern times; yet all were overshadowed by the inflexible courage and hearty zeal with which he met this crisis of British freedom. With the combined power of the King, his ministers, and his judges, arrayed against his clients and against him as their representative, seeking their blood and his degradation, he cowered not, but maintained the home-born rights of his proscribed fellow-subjects with arguments so matchless, with eloquence so glowing, with courage so heroic, with constancy so generous, that his name will ever find a place in the hearts of all who prefer the rights of man to the prerogatives of power. But more than all; he exploded the doctrines of constructive treason, and established the law on the true foundation, that there must be some overt act to constitute guilt; and he reïnscribed upon the Constitution of England the obliterated principle, that Englishmen may freely speak and publish their opinions concerning the Government of their country without being guilty of treason—a principle, under whose protecting shield they now utter their complaints, their denunciations even, in the very ear of Majesty itself.[1]
CHAPTER IV
Constructive Treason—The Law of Libel and Sedition—The Dean of St. Asaph—The Rights of Juries—Erskine—Fox—Pitt.
I took occasion in the last chapter to speak at some length of the trials of Tooke, Hardy, and others, for high treason, in 1794, and of the successful attack then made by Mr. Erskine on the doctrine of constructive treason. Down to the period of these trials, the English law of treason was infamous. Among other things, treason was defined to be waging war against the King, or compassing and imagining his death, or the overthrow of his Government. The law evidently contemplated the doing of some act, designed and adapted to accomplish these ends. But the construction of the courts had subverted this principle, and declared the mere utterance of words high treason. In the reign of Edward IV, a citizen was executed for saying "he would make his son heir of the crown;" meaning, as was supposed, that he would make him the heir of his inn, called "the Crown." Another, whose favorite buck the King had wantonly killed, was executed for saying, "he wished the buck, horns and all, in the bowels of the man who counseled the King to kill it." The court gravely held, that as the King had killed it of his own accord, and so was his own counselor, this declaration was imagining the King's death, and therefore treason! So it had been held, that using words tending to overawe Parliament, and procure the repeal of a law, was levying war on the King, and therefore treasonable. At length the courts yielded to the doctrine that there must be some overt act to constitute the crime. But they also held that, reducing words to writing was an overt act, even though they were never read or printed! Peachum, a clergyman, was convicted of high treason for passages found in a sermon which had never been preached. The immortal Algernon Sidney was executed, and his blood attainted, for some unpublished papers found in his closet, containing merely speculative opinions in favor of a republican form of government. It was in allusion to this judicial murder by the infamous Jeffries, and to the fact that the record of the conviction had been destroyed, that Erskine, on the trial of Hardy, uttered the splendid anathema against "those who took from the files the sentence against Sidney, which should have been left on record to all ages, that it might arise and blacken in the sight, like the handwriting on the wall before the Eastern tyrant, to deter from outrages upon justice." It has already been said that this peerless lawyer exploded these dangerous doctrines, and made it safe for Englishmen to speak and write freely against the King and Government, without exposure to a conviction for treason.
But this is not the only salutary legal reform for which England is indebted to his exertions. Pernicious as is the existing law of CRIMINAL PROSECUTIONS FOR LIBELS AND SEDITIOUS WRITINGS in that country, it was vastly worse till his strong arguments and scathing appeals had shaken it to its foundations. A glance at the law. Any publication imputing bad motives to King or Minister; or charging any branch of Government with corruption, or a wish to infringe the liberties of the People; or which cast ridicule upon the Established Church; and any writing, printing, or speaking, which tended to excite the People to hatred or contempt of the Government, or to change the laws in an improper manner, &c., were seditious libels, for which fine, imprisonment, the pillory, &c., might be imposed. Nor was the truth of the libel any defense. Admirable snares, these, to entangle unwary reformers, and catch game for the royal household! And these bad laws were worse administered. The juries had no power in their administration—the only check in the hands of the People. The court withheld from the jury the question whether a writing was libelous or seditious, and permitted them only to decide whether the prisoner had published it. In a word, if the jury found that he published, they must convict; and then the judge growled out the sentence. These trials were ready weapons for State prosecution in the hands of a tyrannical King and Ministry, with pliant judges at their beck; and in the latter half of the last century they were used without stint or mercy. They struck down Wilkes, Tooke, Woodfall, Muir, Palmer, Holt, Cartwright, and other liberals, for publications and speeches in vindication of the People, which, at this day, would be held harmless even in England. Some were heavily fined, others imprisoned or transported, others set on the pillory, or cropped and branded, their houses broken open and searched, their wives and daughters insulted, their private papers rifled, their printing presses seized, their goods confiscated, their names cast out as evil, and they might regard their lot as fortunate if their prospects for life were not utterly ruined. The treatment of Muir and Palmer, in 1793, was barbarous. Muir was a respectable barrister, and Palmer a clergyman of eminent literary attainments. They had merely addressed meetings and associations for Parliamentary reform in Glasgow and Edinburgh, and reports of one or two of their speeches had been printed. Muir was sentenced to transportation for fourteen years, and Palmer for seven. They were shipped off to Botany Bay with a cargo of common felons! Several other persons, for attending a Reform Convention in Edinburgh the same year, shared a like fate. These are trials which sunshine politicians of the liberal school never contemplate, except to draw from them materials for rounding off fine periods about freedom and the rights of man. But they endear the sufferers to the struggling masses of their own time; and, in after years, when the sons of the persecutors garnish their tombs, those who then endure like trials swear by their memories and conjure with their names.
The times of which I write were prolific of these State prosecutions. Mr. Erskine was the ready counsel of the proscribed reformers then, as Mr. Brougham was at a later period. His great effort on these trials was to convince the court that the juries had the right to decide upon the character of the publication in making up their verdicts; or, in legal phrase, that they were "judges both of law and fact." In this effort, he had many a fierce conflict with the judges, when, with his usual courage, he braved their rebukes and challenged the execution of their hinted threats to commit him for contempt. He always argued this point fully to the court, in the presence of the jury; and such was his mastery over the reason and the feelings, that he sometimes prevented a conviction when he could not obtain an acquittal. It was in an affair of this sort that he had a quarrel with Mr. Justice Buller, a judge who coupled double the imperiousness of Mansfield with half his talents, and whose frown, glowering out from under his huge wig, has silenced many a barrister of more than common nerve. The respectable Dean of St. Asaph, who breathed the mountain air of Wales, published a clever political tract, under the guise of a dialogue between King George and a farmer. Erskine went down to defend him. Buller presided at the trial. Erskine argued his favorite topic with more than his accustomed ability. The jury listened with absorbing attention; the judge with impatient interruptions. He charged furiously against the Dean, and told the jury, if they believed he published the tract, they must render a general verdict of guilty. The words of reason and power of the great barrister, and his piercing eyes, which riveted everything within their gaze, went with them to their room. They returned a verdict in these words: "Guilty of publishing only." The astonished judge ordered them out again, with directions to render a general verdict of guilty. Erskine interposed, and insisted upon their right to render such a verdict as they had. The judge replied tartly, and the jury retired. Again they came in with the same verdict. The judge reprimanded them, while Erskine insisted that their verdict should be recorded. Buller retorted, explained his law to the refractory panel, and sent them out. The third time they appeared with the same verdict. The judge grew furious, and said, unless they rendered a general verdict, he should order the clerk to enter it "guilty." Erskine protested in strong terms. Buller ordered him to sit down. Erskine said he would not sit down, nor would he allow the court to record a verdict of guilty against his client, when the jury had rendered no such verdict. Buller hinted at commitment. Erskine defied him. The jury were frightened, and, in their panic, assented to a general verdict of guilty.[2] Erskine excepted, and carried the case to the full bench. But the day of triumph was at hand. So clearly had he in his great arguments exposed the iniquity of the rule, (if, indeed, it was law at all,) and so pertinaciously had he contested it on the trial of the Dean, that Parliament passed a declaratory act soon after, (thus admitting that Erskine was right,) giving jurors, in these prosecutions, the power to render a verdict upon the whole offense charged, i. e., making them "judges of the law as well as the fact."[3] I need not say that, after this, prosecutions for seditious libels became less potent and frequent weapons in the hands of royal and ministerial persecutors, and reformers breathed freer.
It does the heart good to contemplate talents like Erskine's devoted to such purposes. To see the foremost lawyer of his time, in the midst of wide-spread aristocratic clamor, and despite the fulminations of kings and ministers and judges, take the side of humble men, who are denounced as incendiaries, agrarians, levelers, French Jacobins, traitors, and infidels, plotting to murder their sovereign, upheave his throne, and prostrate the altars of the church, (and these are but a tithe of the catalogue,) and for years perform prodigies of labor for poor clients and poorer pay, thus blocking up the avenues to preferment in his cherished profession, and all for the love he bears the common cause! Such a spectacle should go somewhat to blunt the edge of those taunts so constantly aimed at a profession which he adored and adorned, and which, in every struggle for human rights, has furnished leaders to the popular party among the bravest of the brave. The law, like every other profession, has its scum and its vermin, and yields its share of dishonest men. But they are dishonest not because they are lawyers, but because they are scoundrels, and would have been so had they chosen to be merchants, physicians, or horse-jockies. When reproaching the whole legal fraternity as a "pack of licensed swindlers," it might be well to remember that the most conspicuous rebels and martyrs of English freedom, in the olden times, were lawyers—that Erskine, Emmet, Romilly, Mackintosh, O'Connell, and Brougham, of later and milder days, were lawyers; and that Jefferson, Adams, Otis, Sherman, Henry, and Hamilton, with many other bold spirits who thundered and lightened during the storm of the American revolution, were lawyers.
But we must leave Mr. Erskine by saying, that he possessed ability and learning to maintain the boldest positions; eloquence for the most thrilling appeals; imagination to sustain the loftiest flights. He was graceful in action, melodious in elocution, and had an eye of whose fascinating power jurors were often heard to speak. He was a wit and a logician—a lawyer and a reformer—a man, cast in the noblest mold of his species.