“Oh, nothing, nothing whatever; the moon kept right on, as if nothing had happened.”
Independence without moderation becomes licentiousness, but true independence is an essential attribute of advocacy, and the English Bar has never wanted men endowed with this form of true courage. The sacrifice of the highest professional honours to the maintenance of principle has been a commonplace in the history of English advocates, and the names of the living could be added if need be to those who have passed away, leaving us this clean heritage as example.
The true position of the independence of the English Bar, the right and the duty of the advocate to appear in every case, however poor, degraded, or wicked the party may be, is laid down once and for all in a celebrated speech of Erskine’s in his defence of Thomas Paine, who was indicted in 1792 for publishing the Rights of Man. Great public indignation was expressed against Erskine for daring to defend Paine. As he said in his speech, “In every place where business or pleasure collects the public together, day after day, my name and character have been the topics of injurious reflection. And for what? Only for not having shrunk from the discharge of a duty which no personal advantage recommended, and which a thousand difficulties repelled.”
He then continued, in words which the learned editor of Howell’s State Trials emphasises by printing in capital letters, to enunciate one of the basic principles of English advocacy:
“Little, indeed, did they know me, who thought that such calumnies would influence my conduct: I will for ever, at all hazards, assert the dignity, independence, and integrity of the English Bar; without which, impartial justice, the most valuable part of the English Constitution, can have no existence. From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practise—from that moment the liberties of England are at an end. If the advocate refuses to defend, from what he may think of the charge or of the defence, he assumes the character of the judge; nay, he assumes it before the hour of judgment; and, in proportion to his rank and reputation, puts the heavy influence of perhaps a mistaken opinion into the scale against the accused, in whose favour the benevolent principle of English law makes all presumptions, and which commands the very judge to be his counsel.”
Side by side with this may be set the grand example of William Henry Seward in acting in the defence of the negro Freeman in 1846. A horrible murder was committed. Without any provocation or desire for plunder, Freeman killed a farmer and several of his family. He was easily captured, when he laughed in the face of his captors and acknowledged the crime. He was a recently emancipated slave, deaf, and obviously insane. The sheriff had the greatest difficulty in preventing him from being lynched. The clergyman at the victims’ funeral made a rousing appeal for his punishment, which was printed and circulated round the district.
Seward undertook his defence, and a storm of prejudice and passion was directed against him to dissuade him from doing what he believed to be his duty as an advocate. In the crowded court-house, when the judge asked, “Will any one defend this man?” and Seward rose, and said he was counsel for the prisoner, a murmur of indignation ran round the court. His advocacy was of no avail to the individual, but his eloquent speech remains a noble statement of the duty of the advocate, and a fine example of devotion and courage in the exercise of that duty.
The whole speech is worthy of study, as it contains a glowing and reasoned appeal for the right of the most degraded human being in a civilised state to a real hearing of his case in a judicial court, which can only be obtained through honest and competent advocacy.
As the yellow harvest-moon rose outside the darkening court-house his peroration was listened to by the indignant crowd with, at least, outward respect, and it remains a message of encouragement to the advocates of future generations.
“In due time, gentlemen of the jury, when I shall have paid the debt of nature, my remains will rest here in your midst with those of my kindred and neighbours. It is very possible they may be unhonoured, neglected, spurned! But perhaps years hence, when the passion and excitement which now agitate this community shall have passed away, some wandering stranger, some lone exile, some Indian, some negro, may erect over them an humble stone, and thereon this epitaph: ‘He was faithful.’”