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Gentlemen, I think I can observe that you are for money, whatever may be the necessity for touched with this way of considering the subject, taking it.13 All these things must ever be ocand I can account for it. I have not been con- curring. But under the pressure of such considering it through the cold medium of books, stant difficulties, so dangerous to national honor, but have been speaking of man and his nature, it might be better, perhaps, to think of effectually and of human dominion, from what I have seen securing it altogether, by recalling our troops of them myself among reluctant nations submit- and our merchants, and abandoning our Oriental ting to our authority. I know what they feel, empire. Until this be done, neither religion nor and how such feelings can alone be repressed. philosophy can be pressed very far into the aid I have heard them in my youth from a naked of reformation and punishment. If England, The Indian savage, in the indignant character of a from a lust of ambition and dominion, will insist Chief. prince surrounded by his subjects, ad- on maintaining despotic rule over distant and dressing the governor of a British colony, hold- hostile nations, beyond all comparison more nuing a bundle of sticks in his hand, as the notes merous and extended than herself, and gives of his unlettered eloquence. Who is it," said commission to her viceroys to govern them with the jealous ruler over the desert, encroached no other instructions than to preserve them, and upon by the restless foot of English adventure to secure permanently their revenues, with what "who is it that causes this river to rise in the color of consistency or reason can she place herhigh mountains, and to empty itself into the self in the moral chair, and affect to be shocked ocean? Who is it that causes to blow the loud at the execution of her own orders; adverting winds of winter, and that calms them again in to the exact measure of wickedness and injussummer? Who is it that rears up the shade of tice necessary to their execution, and complainthose lofty forests, and blasts them with the ing only of the excess as the immorality, considquick lightning at his pleasure? The same Be-ering her authority as a dispensation for breaking who gave to you a country on the other side ing the commands of God, and the breach of of the waters, and gave ours to us; and by this them as only punishable when contrary to the title we will defend it," said the warrior, throwing ordinances of man? down his tomahawk upon the ground, and raising the war-sound of his nation. These are the feelings of subjugated man all round the globe; and depend upon it, nothing but fear will control where it is vain to look for affection.12

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Such a proceeding, gentlemen, begets serious reflection. It would be better, perhaps, for the masters and the servants of all such governments to join in supplication, that the great Author of violated humanity may not confound them together in one common judgment.

Gentlemen, I find, as I said before, I have not sufficient strength to go on with the remaining parts of the book. I hope, however, that notwithstanding my omissions, you are now completely satisfied that, whatever errors or misconceptions may have misled the writer of these pages, the justification of a person whom he believed to be innocent, and whose accusers had themselves appealed to the public, was the single object of his contemplation. If I have succeeded in that object, every purpose which I had in addressing you has been answered.

These reflections are the only antidotes to those anathemas of superhuman eloquence which have lately shaken these walls that surround us, but which it unaccountably falls to my province, whether I will or no, a little to stem the torrent of, by reminding you that you have a mighty sway in Asia, which can not be maintained by the finer sympathies of life, or the practice of its charities and affections. What will they do for you when surrounded by two hundred thousand men with artillery, cavalry, and elephants, calling upon you for their dominions which you have robbed them of? Justice may, no doubt, in such a case forbid the levying of a fine to pay a re- It only now remains to remind you that anvolting soldiery; a treaty may stand in the way other consideration has been strong- If the writer of increasing a tribute to keep up the very ex-ly pressed upon you, and, no doubt, istence of the government; and delicacy for women may forbid all entrance into a Zenana inevitably have fallen altogether; and, in addition to this, he was constantly pressed by the Directors of the East India Company for remittances of money, which could only be extorted by oppression. Al though his government was arbitrary, yet it was popular among the natives, being milder and more just than that of their own princes; while he him self was respected for the unusual regard which he paid to native prejudices and customs, and his pat-cent animadversions on authority. To this I ronage of literature and the fine arts.

12 The reader will be struck with the rapid flow of the rhythmus in this speech of the Indian chief, so admirably corresponding in its iambic structure with the character of the speaker. It should be read aloud in connection with a correspondent passage of Mr. Grattan, already remarked upon for its slow and majestic movement. See page 390.

was honest in he ought not for an occa

Lis intestine, to be punished

sional excess.

will be insisted on in reply. You will
be told that the matters which I have
been justifying as legal. and even mer-
itorious, have therefore not been made the sub-
ject of complaint; and that whatever intrinsie
merit parts of the book may be supposed or even
admitted to possess, such merit can afford no
justification to the selected passages, some of
which, even with the context, carry the meaning
charged by the information, and which are inde-

would answer (still protesting as I do against
the application of any one of the innuendoes),
that if you are firmly persuaded of the single-
ness and purity of the author's intentions, you

13 See introduction to Mr. Sheridan's speech, p.

405-6.

are not bound to subject him to infamy, because, in the zealous career of a just and animated composition, he happens to have tripped with his pen into an intemperate expression in one or two instances of a long work. If this severe duty were binding on your consciences, the liberty of the press would be an empty sound, and no man could venture to write on any subject, however pure his purpose, without an attorney at one elbow and a counsel at the other.

striction on the press.

which you had exchanged for the banners of Freedom.

ciple as to the

If it be asked where the line to this indulgence and impunity is to be drawn, the an- General prinswer is easy. The liberty of the press, liberty of the on general subjects, comprehends and press. implies as much strict observance of positive law as is consistent with perfect purity of intention, and equal and useful society. What that latitude is, can not be promulgated in the abstract, From minds thus subdued by the terrors of but must be judged of in the particular instance, Evils of too punishment, there could issue no works and consequently, upon this occasion, must be severe of genius to expand the empire of hu- judged of by you, without forming any possible man reason, nor any masterly composi- precedent for any other case; and where can tions on the general nature of government, by the judgment be possibly so safe as with the the help of which the great commonwealths of members of that society which alone can suffer, mankind have founded their establishments; if the writing is calculated to do mischief to the much less any of those useful applications of public? You must, therefore, try the book by them to critical conjunctures, by which, from that criterion, and say whether the publication time to time, our own Constitution, by the exer- was premature and offensive, or, in other words, tion of patriot citizens, has been brought back to whether the publisher is bound to have suppressits standard. Under such terrors, all the great ed it until the public ear was anticipated and lights of science and civilization must be extin-abused, and every avenue to the human heart or guished; for men can not communicate their free thoughts to one another with a lash held over their heads. It is the nature of every thing that is great and useful, both in the animate and inanimate world, to be wild and irregular, and we must be contented to take them with the alloys which belong to them, or live without them. Genius breaks from the fetters of criticism, but its wanderings are sanctioned by its majesty and Gentlemen, I hope I have now performed my wisdom when it advances in its path: subject it to duty to my client: I sincerely hope that I have; the critic, and you tame it into dullness. Mighty for, certainly, if ever there was a man pulled the rivers break down their banks in the winter, other way by his interests and affections-if ever sweeping away to death the flocks which are there was a man who should have trembled at fattened on the soil that they fertilize in the sum- the situation in which I have been placed on this mer: the few may be saved by embankments occasion, it is myself, who not only love, honor, from drowning, but the flock must perish for hun- and respect, but whose future hopes and preferger. Tempests occasionally shake our dwellings ments are linked, from free choice, with those and dissipate our commerce; but they scourge who, from the mistakes of the author, are treatbefore them the lazy elements, which withouted with great severity and injustice. These are them would stagnate into pestilence." In like manner, Liberty herself, the last and best gift of God to his creatures, must be taken just as she is you might pare her down into bashful regularity, and shape her into a perfect model of severe, scrupulous law, but she would then be Liberty no longer; and you must be content to die under the lash of this inexorable justice

understanding secured and blocked up? I see around me those by whom, by-and-by, Mr. Hastings will be most ably and eloquently defended;15 but I am sorry to remind my friends that, but for the right of suspending the public judg ment concerning him till their season of exertion comes round, the tongues of angels would be insufficient for the task.

strong retardments; but I have been urged on to activity by considerations which can never be inconsistent with honorable attachments, either in the political or social world-the love of justice and of liberty, and a zeal for the Constitution of my country, which is the inheritance of our posterity, of the public, and of the world. These are the motives which have animated me in defense of this person, who is an entire stran14 This is one of the finest amplifications in En-ger to me-whose shop I never go to-and the glish oratory, beautiful in itself, justified by the im- author of whose publication, as well as Mr. Hastportance of the subject which it enforces, and ad-ings, who is the object of it, I never spoke to in mirably suited to produce the designed impression. The seminal idea was probably suggested by a remark of Burke, whose writings Mr. Erskine inces. santly studied. It is the nature of all greatness not to be exact.”—See page 252. We see in this case, how a man of genius may borrow from another, without detracting in the least from the freshness and originality with which his ideas are expressed and applied. At the present day, there can be very little of that originality which presents an idea for the first time. All that can be expected is, that we make it our own, and apply it to new purposes.

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my life.

be observed in justice.

One word more, gentlemen, and I have done. Every human tribunal ought to take A regard to hu care to administer justice, as we look man frailty to hereafter to have justice administered administering to ourselves. Upon the principle on which the Attorney General prays sentence upon my client-God have mercy upon us! Instead of standing before him in judgment with the

15 Mr. Law (afterward Lord Ellenborough), Mr. Plumer, and Mr. Dallas.

by which whole families have been rendered unhappy during life, by aspersions, cruel, scandalous, and unjust. Let such libelers remember that no one of my principles of defense can, at any time or upon any occasion, ever apply to shield THEM from punishment; because such conduct is not only an infringement of the rights of men, as they are defined by strict law, but is absolutely incompatible with honor, honesty, or mistaken good intention. On such men let the Attorney General bring forth all the artillery of his office, and the thanks and blessings of the whole public will follow him. But this is a totally different case. Whatever private calumny may mark this work, it has not been made the subject of complaint, and we have therefore noth

hopes and consolations of Christians, we must call upon the mountains to cover us; for which of us can present, for omniscient examination, a pure, unspotted, and faultless course.? But I humbly expect that the benevolent Author of our being will judge us as I have been pointing out for your example. Holding up the great volume of our lives in his hands, and regarding the general scope of them; if he discovers benevolence, charity, and good-will to man beating in the heart, where he alone can look; if he finds that our conduct, though often forced out of the path by our infirmities, has been in general well directed; his all-searching eye will assuredly never pursue us into those little corners of our lives, much less will his justice select them for punishment, without the general context of our existing to do with that, nor any right to consider it. ence, by which faults may be sometimes found to have grown out of virtues, and very many of our heaviest offenses to have been grafted by human imperfection upon the best and kindest of our affections. No, gentlemen, believe me, this is not the course of divine justice, or there is no truth in the Gospels of Heaven. If the general tenor of a man's conduct be such as I have rep-common sense, be any thing resembling a quesresented it, he may walk through the shadow of death, with all his faults about him, with as much cheerfulness as in the common paths of life; because he knows that, instead of a stern accuser to expose before the Author of his nature those frail passages which, like the scored matter in the book before you, checkers the volume of the brightest and best-spent life, his mercy will obscure them from the eye of his purity, and our repentance blot them out forever.

All this would, I admit, be perfectly foreign and irrelevant, if you were sitting here in a case of property between man and man, where a strict rule of law must operate, or there would be an end of civil life and society. It would be equally foreign, and still more irrelevant, if applied to those shameful attacks upon private reputation which are the bane and disgrace of the press;

We are trying whether the public could have been considered as offended and endangered if Mr. Hastings himself, in whose place the author. and publisher have a right to put themselves, had, under all the circumstances which have been considered, composed and published the volume under examination. That question can not, in

tion of LAW, but is a pure question of FACT, to be decided on the principles which I have humbly recommended. I, therefore, ask of the court that the book itself may now be delivered to you. Read it with attention, and as you shall find it, pronounce your verdict.

This trial took place before the passing of Mr Fox's Libel Bill; and Lord Kenyon charged the jury that they were not to consider whether the pamphlet was libelous, but simply whether it had been published by the defendant. Under these circumstances, they spent two hours in deliberation, but finally broke through the instructions of the court, and found the defendant NOT GUILTY, thus anticipating the rights soon after secured to juries by an act of Parliament.

SPEECH

OF MR. ERSKINE IN BEHALF OF JOHN FROST, WHEN INDICTED FOR UTTERING SEDITIOUS WORDS, DELIVERED BEFORE THE COURT OF KING'S BENCH, MARCH, 1793.

INTRODUCTION.

THIS was the first trial under what has been called the "Reign of Terror." Mr. Frost was a London attorney of eminence, who had just returned from a visit to France, at that time under the government of the Convention, and hastening toward the revolutionary crisis. He dined with an agricultural society at a coffee-house, on the 6th of November, 1792. On his coming down from the private room, where he had been dining, into the public coffee-room, between nine and ten in the evening, he was addressed by a person of the name of Yatman, who, knowing Mr. Frost, and that he had just returned from the continent, said to him, "Well, how do they go on in France?" Upon which Mr. Frost, who was much heated with wine, exclaimed, "I am for equality, and no King." Mr. Yatman replied, "What! no King in this country?" and Mr. Frost then repeated, "Yes, no King; there ought to be no King." And it was for the use of this language, and for nothing beyond this, that the indictment was preferred.

SPEECH, &c.

GENTLEMEN OF THE JURY,-I rise to address | sider myself entitled, not only for the defendant you under circumstances so peculiar, that I con- arraigned before you, but personally for myself,

Crown having

the record.

be, in any shape, before you; and that upon the trial of this indictment, supported only by the evidence you have heard, the words must be judged of as if spoken by any man or woman in the kingdom, at any time from the Norman Conquest to the moment I am addressing you.

the crime, they

been included

ment.

to the utmost indulgence of the court. I came down this morning with no other notice of the duty cast upon me in this cause, nor any other direction for the premeditation necessary to its performance, than that which I have ever considered to be the safest and the best-namely, the records of the court, as they are entered here I admit, indeed, that the particular time in for trial, where, for the ends of justice, the charge which words are spoken, or acts com- If these were must always appear with the most accurate pre-mitted, may most essentially alter connected with cision, that the accused may know what crime their quality and construction, and should have he is called upon to answer, and his counsel how give to expressions or conduct, which in the indict he Embarrassment may defend him. Finding, there- in another season might have been arising from the fore, upon the record which arraigns innocent, or at least indifferent, the highest and traveled out of the defendant, a simple, unqualified most enormous guilt. But, for that very reason, charge of seditious words, unconnect- the supposed particularity of the present times, ed, and uncomplicated with any extrinsic events, as applicable to the matter before you, is absoI little imagined that the conduct of my client lutely shut out from your consideration-shut was to receive its color and construction from out upon the plainest and most obvious principle the present state of France, or rather of all Eu- of justice and law; because, wherever time or rope, as affecting the condition of England. I occasion mix with an act, affect its quality, and little dreamed that the 6th of November (which, constitute or enhance its criminality, they then reading the indictment, I had a right to consider become an essential part of the misdemeanor itlike any other day in the calendar) was to turn self, and must consequently be charged as such out an epoch in this country (for so it is styled in upon the record. I plainly discover I have his the argument); and that, instead of having to Lordship's assent to this proposition. If, theredeal with idle, thoughtless words, uttered over fore, the Crown had considered this cause originwine, through the passage of a coffee-house, with ally in the serious light in which it considers it whatever at any time might belong to them, I to-day, it has wholly mistaken its course. If it was to meet a charge of which I had no notice | had considered the government of France as actor conception, and to find the loose dialogue, ively engaged in the encouragement of disaffecwhich, even upon the face of the record itself, tion to the monarchy of England, and that her exhibits nothing more than a casual sudden con- newly-erected republic was set up by her as the versation, exalted to an accusation of the most great type for imitation and example here; if it premeditated, serious, and alarming nature- had considered that numbers, and even classes verging upon high treason itself, by its connec- of our countrymen, were ripe for disaffection, if tion with the most hostile purposes to the state, not for rebellion; and that the defendant, as an and assuming a shape still more interesting from emissary of France, had spoken the words with its dangerous connection with certain mysterious the premeditated design of undermining our govconspiracies, which, in confederacy with French ernment—this situation of things might and ought republicans, threaten, it seems, the Constitution of to have been put as facts upon the record, and as our once happy country. facts established by evidence, instead of resting, as they do to-day, upon assertion. By such a course the crime, indeed, would have become of the magnitude represented; but, on the other hand, as the conviction could only have followed from the proof, the defendant, upon the evidence of to-day, must have an hour ago been acquitted. Not a syllable has been proved of any emissaries from France to debauch our monarchical principles; not even an insinuation in evidence that, if there were any such, the defendant was one of them; not a syllable of proof, either directly or indirectly, that the condition of the country, when the words were uttered, differed from its ordinary condition in times of prosperity and peace. It is, therefore, a new and most compendious mode of justice, that the facts which wholly constitute, or, at all events, lift up the dignity and danger of the offense, should not be charged upon record, because they could not be proved, but are to be taken for granted in the argument, so as to produce the same effect upon the trial and in the punishment, as if they had been actually charged and completely established. If the affairs of France, as they are supposed to affect this country, had been introduced without a warrant from the

fendant with

Gentlemen, I confess myself much unprepared Unjust to involve for a discussion of this nature, and the case of the de- a little disconcerted at being so. French politics. For although, as I have said, I had no notice from the record that the politics of Europe were to be the subject of discourse, yet experience ought to have taught me to expect it; for what act of government has, for a long time past, been carried on by any other means? When or where has been the debate, or what has been the object of authority, in which the affairs of France have not taken the lead? The affairs of France have, indeed, become the common stalking-horse for all state purposes. I know the honor of my learned friend,1 too well to impute to him the introduction of them for any improper or dishonorable purpose. I am sure he connects them in his own mind with the subject, and thinks them legally before you: I am bound to think so, because the general tenor of his address to you has been manly and candid. But I assert that neither the actual condition of France, nor the supposed condition of this country, are, or can

The Attorney General, Sir A. Macdonald.

charge or the evidence, I should have been whol- | country, were, for no other crime than their per

ly silent concerning them; but as they have been already mixed with the subject, in a manner so eloquent and affecting as, too probably, to have made a strong impression, it becomes my duty to endeavor at least to remove it.

Views expressed by the counsel for the Crown.

severance in those sentiments which certain persons had originated and abandoned,3 to be given up to the licentious pens and tongues of hired defamation; to be stabbed in the dark by anonymous accusations; and to be held out to England The late revolutions in France have been rep- and to the whole world, as conspiring, under the resented to you as not only ruinous auspices of cut-throats, to overturn every thing to their authors, and to the inhabit- sacred in religion, and venerable in the ancient ants of that country, but as likely to government of our country. Certain it is, that shake and disturb the principles of this and all the whole system of government, of which the other governments. You have been told, that business we are now engaged in is no mean speethough the English people are generally well af- imen, came upon the public with the suddenness fected to their government-ninety-nine out of of a clap of thunder, without one act to give it one hundred, upon Mr. Attorney General's own foundation, from the very moment that notice was statement-yet that wicked and designing men given of a motion in Parliament to reform the have long been laboring to overturn it; that noth-representation of the people. Long, long, being short of the wise and spirited exertions of fore that time the "Rights of Man," and other the present government (of which this prosecution is, it seems, one of the instances) have hitherto averted, or can continue to avert, the dangerous contagion which misrule and anarchy are spreading over the world; that bodies of Englishmen, forgetting their duty to their own country and its Constitution, have congratulated the Convention of France upon the formation of their monstrous government; and that the conduct of the defendant must be considered as a part of a deep-laid system of disaffection, which threatens the establishments of this kingdom.

before the jury

books, though not complained of, had been writ ten; equally long before it, the addresses to the French government, which have created such a panic, had existed; but as there is a "give and take" in this world, they passed unregarded. Leave but the practical corruptions, and they are contented to wink at the speculations of theorists, and the compliments of public-spirited civility. But the moment the national attention was awakened to look at things in practice, and to seek to reform corruptions at home, from that moment, as at the ringing of a bell, the whole hive began to swarm, and every man in his turn has been

Gentlemen, this state of things having no supThese things not port whatever from any evidence be-stung. fore you, and resting only upon opinin evidence. ion, I have an equal right to mine; having the same means of observation with other people of what passes in the world; and as I have a very clear one upon this subject, I will give it you in a few words.

Mr. Erskine's

2

I am of opinion, then, that there is not the smallest foundation for the alarm which views direct has been so industriously propagated; ly the reverse. in this I am so far from being singular, that I verily believe the authors of it are themselves privately of the same way of thinking. But it was convenient for certain persons, who had changed their principles, to find some plausible pretext for changing them. It was convenient for those who, when out of power, had endeavored to lead the public mind to the necessity of reforming the corruptions of our own government, to find any reasons for their continuance and confirmation, when they operate as engines to support themselves in the exercise of powers which were only odious when in other hands. For this honorable purpose, the sober, reflecting, and temperate character of the English nation was to be represented as fermenting into sedition, and into an insane contempt for the revered institutions of their ancestors. For this honorable purpose, the wisest men-the most eminent for virtue-the most splendid in talents the most independent for rank and property in the

Among the principal were Mr. Burke, the Prince of Wales, the Duke of Portland, and Lords Spencer, Mansfield, Fitzwilliam, and Loughborough.

ciated with Me. Pitt as a friend of parliament

ar reform.

This, gentlemen, is the real state of the case; and I am so far from pushing the ob- The defendant servation beyond its bearing for the formerly assa defense of a client, that I am ready to admit Mr. Frost, in his conduct, has not been wholly invulnerable, and that, in some measure, he has brought this prosecution upon himself. Gentlemen, Mr. Frost must forgive me, if I take the liberty to say that, with the best intentions in the world, he formerly pushed his observations and conduct respecting government further than many would be disposed to follow him. I can not disguise or conceal from you, that I find his name in this green-book, as associated with Mr. Pitt and the Duke of Richmond, at the Thatched House Tavern, in St. James's Street.3 I find him, also, the correspondent of the former; and that I discover in their publications on the structure and conduct of the House of Commons, expressions which, however merited, and in my In allusion to Mr. Pitt's altered opinions as to parliamentary reform.

Mr. Charles Grey, at the request of the Society of "The Friends of the People," on the 30th April, 1792, gave notice of his intention to bring forward, in the ensuing session, a motion to this effect.

5 Mr. Erskine read the minute (in Mr. Pitt's own handwriting) of a meeting of members of Parliament, and of members of several committees of counties

and cities, held at the Thatched House Tavern, at which Mr. Frost was present, on the 18th of May, 1782, and at which resolutions were passed in approbation of Mr. Pitt's motion, on the 7th of May previous, on the subject of the representation of the people in Parliament.

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