Of course the jury found him guilty: the judges sentenced him to transportation for fourteen years! Lord Swinton quoted from the Roman law, that the punishment for sedition was crucifixion, or exposure to be torn to pieces by wild beasts, or transportation. "We have chosen the mildest of these punishments." This sentence was executed with great cruelty. But Mr. Pitt, then in the high places of power, declared these punishments were dictated by a "sound discretion."[137]
For like offences several others underwent the same or similar punishment. But these enormities were perpetrated by the government in Scotland—where the Roman Law had early been introduced and had accustomed the Semi-Saxons to forms of injustice foreign to the ethnologic instinct and historic customs of the parent tribe. But begun is half done. Emboldened by their success in punishing the friends of Humanity in Scotland, the ministry proceeded to attempt the same thing in England itself. Then began that British Reign of Terror, which lasted longer than the French, and brought the liberties of the People into such peril as they had not known since William of Orange hurled the last of the Stuarts from his throne. Dreadful laws were passed, atrocious almost as our own fugitive slave bill. First came "the Traitorous correspondence Bill;" next the "Habeas Corpus Suspension Act;" and then the "Seditious Practices Act," with the "Treasonable Attempts Bill" by legislative exposition establishing constructive treason! All these iniquitous measures were brought forward in Parliament by Sir John Scott—then Attorney-General, one of those North Britons who find the pleasantest prospect in Scotland is the road to London. He also was vehemently active in defending the tyranny of the Scotch judges just referred to, as indeed all judicial insolence and legal wrong.[138] He opposed all attempts to reform the law which punished with death a theft of five shillings. In two years there were more prosecutions for seditious libel than in twenty before. But Scott had his reward, and was made Lord Chancellor in 1801, and elevated to the peerage as Lord Eldon.[139]
8. Then came that series of trials for high treason which disgraced the British nation and glutted the sanguinary vengeance of the court. The government suborned spies to feign themselves "radicals," join the various Reform Societies, worm themselves into the confidence of patriotic and philanthropic or rash men, possess themselves of their secrets, catch at their words, and then repeat in court what they were paid for fabricating in their secret haunts. A ridiculous fable was got up that there was a plot to assassinate the King! Many were arrested, charged with treason—"constructive treason." On the evidence of spies of the government, hired informers—such men, Gentlemen of Jury, as Commissioner Loring and Marshal Freeman jointly made use of last year to kidnap Mr. Burns—estimable men were seized and locked up in the most loathsome dungeons of the kingdom, with intentional malignity confined amongst the vilest of notorious criminals. The judges wrested the law, constructing libels, seditions, "misdemeanors," treasons—any crime which it served their purpose to forge out of acts innocent, or only rash or indiscreet. Juries were packed by bribed sheriffs, and purchased spies were brought in evidence to swear away the liberty or the life of noble men. One of the government witnesses was subsequently convicted of ten perjuries! No man was safe who dared utter a serious word against George III. or Mr. Pitt.
Here, Gentlemen, I shall mention two cases of great importance in which the jury did their duty and turned the stream of ministerial and judicial tyranny.
(1.) In 1794 in a bill suspending the Habeas Corpus, Parliament declared "that a treacherous and detestable conspiracy had been formed for subverting the existing laws and constitution, and for introducing the system of anarchy and violence which had lately prevailed in France." Soon after the grand-jury for Middlesex indicted twelve men for high treason; they were members of some of the Societies mentioned just now. "The overt act charged against them was, that they had engaged in a conspiracy to call a convention, the object of which was to bring about a revolution in the country," but it was not alleged that there was any plot against the King's life, or any preparation for force.[140] Thomas Hardy, a shoemaker, was first brought to trial. The trial began October 28, 1794, just sixty years before Mr. Curtis's grand-jury found a bill against me. Sir John Scott, the attorney-general, in opening the Prosecution, made a speech nine hours' long, attempting to construct treason out of belonging to a society. All who belonged to it were to be considered guilty of "compassing the death of our Lord the King." Chief Justice Eyre, in addressing the grand-jury, referred to the act of Parliament as proof of a conspiracy.[141] Mr. Erskine defended Hardy in a speech which "will live forever." Seldom had English Liberty been in such peril; never did English lawyers more manfully defend it. The jury, a London jury, returned "Not Guilty."[142] Gentlemen, the report of the trial occupies more than twelve hundred pages in this volume,[143] and it shook the nation. The British juries for a long time had slept on their post, and allowed the enemy to enter the camp and murder its inmates. But the trial of Hardy woke up those heedless sentinels, and Liberty was safe—in England, I mean.
(2.) Still the infatuated government went on, not conscious of the spirit of Anglo-Saxon liberty it had at last roused from long, heavy and deathlike sleep, and eleven days after brought Mr. John Horne Tooke to trial. You remember, Gentlemen, that on the first anniversary of the Declaration of Independence, he was tried for publishing a notice of a meeting which raised £100 for the widows and orphan children of our citizens who fell at Lexington on the 19th of April, 1775, and for that offence was punished with fine and imprisonment.[144] After the acquittal of Hardy, the government brought Mr. Tooke to trial, relying on the same evidence to convict him which had so signally failed a fortnight before. The overt act relied on to convict him of "levying war" and "compassing the death of our Lord the King," was membership of a Reform society! Mr. Erskine defended him: "I will assert the freedom of an Englishman; I will maintain the dignity of man, I will vindicate and glory in the principles which raised this country to her preëminence among the nations of the earth; and as she shone the bright star of the morning to shed the light of liberty upon nations which now enjoy it, so may she continue in her radiant sphere to revive the ancient privileges of the world which have been lost, and still to bring them forward to tongues and people who have never known them yet, in the mysterious progression of things."[145]
Gentlemen, Horne Tooke was acquitted—the government routed and overwhelmed with disgrace, gave up the other prosecutions, and the treason trials ended. Even George III. had wit enough left to see the blunder which his ministers—the Slave Power of England in 1794—had committed, and stammered forth, "You have got us into the wrong box my Lord [Loughborough]; you have got us into the wrong box. Constructive treason won't do my Lord; constructive treason won't do." By and by, Gentlemen, other men, wiser than poor feeble-minded George III., will find out that "constructive misdemeanors won't do."
Of these trials, Mr. Campbell, himself a Judge, declares, "This [the conduct of the government] was more exceptionable in principle than any thing done during the reign of Charles II.; for then the fabricators of the Popish Plot did not think of corroborating the testimony of Oates and Bedloe by a public statute; and then, if the facts alleged had been true, they would have amounted to a plain case of actual treason; whereas here, admitting the truth of all the facts alleged, there was no pretence for saying that any treason contemplated by the legislature had been committed. If this scheme had succeeded, not only would there have been a sacrifice of life contrary to law, but all political 'agitation' must have been extinguished in England, as there would have been a precedent for holding that the effort to carry a measure by influencing public opinion through the means openly resorted to in our days, is a 'compassing the death of the sovereign.' The only chance of escaping such servitude would have been civil war. It is frightful to think of the perils to which the nation was exposed.... But Erskine and the crisis were framed for each other.... His contemporaries, who without him might have seen the extinction of freedom among us, saw it, by his peculiar genius, placed on an imperishable basis."[146] But Erskine without a Jury, Gentlemen, what could he have done? He could only wail, O Jerusalem, Jerusalem—when she would not!
Now, Gentlemen, let us come over to this side of the water. I shall mention some cases in which the Jury have manfully done their duty, some others in which they have allowed themselves to be browbeaten and bullied by a judge, and so have done the greatest wrong.