opinion commendable, would now be considered, not merely as intemperate and unguarded, but as highly criminal.6 Reasons for his ject of prosecution--not the prosecution of my learned friend-not the prosecution of the Attorney General-not the prosecution of his Majesty; but the prosecution of Mr. Yatman, who wishes to show you his great loyalty to the state and Constitution, which were in danger of falling, had it not been for the drugs of this worthy apothecary. tion, With regard to the new government of France, since the subject has been introduced, Remarks on the all I can say of it is this, that the good French Revolu or evil of it belongs to themselves. They had a right, like every other people upon earth, to change their government; the system destroyed was a system disgraceful to free and rational beings; and if they have neither substituted, nor shall hereafter substitute, a better in its stead, they must eat the bitter fruits of their own errors and crimes. As to the horrors which now disfigure and desolate that fine country, all good men must undoubtedly agree in condemning and deploring them, but they may differ, nevertheless, in deciphering their causes. the full as wise as those who pretend to be wiser than Providence, and stronger than the order of things, may, perhaps, reflect that a great fabric of unwarrantable power and corruption could not fall to the ground without a mighty convulsionthat the agitation must ever be in proportion to the surface agitated that the passions and errors inseparable from humanity must heighten and swell the confusion; and that, perhaps, the crimes and ambition of other nations, under the mask of Men to Gentlemen, the fashion of this world speedily passeth away. We find these glorinow being pros ous restorers of equal representation ecuted. determined, as ministers, that, so far from every man being an elector, the metropolis of the kingdom should have no election at all; but should submit to the power, or to the softer allurements, of the Crown. Certain it is, that, for a short season, Mr. Frost being engaged professionally as agent for the government candidate, did not (indeed, he could not) oppose this inconsistency between the doctrine and practice of his friends; and in this interregnum of public spirit, he was, in the opinion of government, a perfect patriot, a faithful friend to the British Constitution. As a member of the law, he was, therefore, trusted with government business in matters of revenue, and was, in short, what all the friends of government, of course, are, the best and most approved--to save words, he was like the rest of them, just what he should be. But the election being over, and, with it, professional agency, and Mr. Frost, as he lawfully might, continuing to hold his former opinions (which were still avowed and gloried in, though not acted on, by his ancient friends), he, unfortunately, did not change them the other day, when they were thrown off by others. On the contrary, he rather seems to have taken fire with the prospect of reducing them to practice; and being, as I have shown you, bred in a school which took the lead in bold-self-defense and humanity, may have contributed ness of remonstrance of all other reformers before or since, he fell, in the heat and levity of wine, into expressions which have no correspondence with his sober judgment; which would have been passed over or laughed at in you or me, but which, coming from him, were never to be forgiven by government. This is the genuine history of his offense. For this he is to be the sub not a little to aggravate them-may have tended to imbitter the spirits and to multiply the evils which they condemn-to increase the misrule and anarchy which they seek to disembroil, and in the end to endanger their own governments, which by carnage and bloodshed, instead of by peace, improvement, and wise administration, they profess to protect from the contagion of revolution. and the feelings ed in England. As to the part which bodies of men in England have taken, though it might, in some instances, be imprudent and irregular, it had awaken yet I see nothing to condemn, or to support, the declamation which we daily hear upon the subject. The congratulations of Englishmen were directed to the fall of corrupt and despotic power in France, and were animated by a wish of a milder and freer government-happier for that country, and safer for this. were, besides, addressed to France when she was at peace with England, and when no law was, therefore, broken by the expression of opinion or satisfaction. They were not congratulations on the murders which have since been committed, nor on the desolations which have since overspread so large a portion of the earth, neither were they traitorous to the government of this They 7 Mr. Erskine alluded to the addresses sent from several political societies in England to the French National Assembly, which, in the expressions of their warm approbation of the new government established in France, bordered closely on sedition against the English government. the government; he the said defendant, his afore- the crime. country. This we may safely take in trust, since not one of them, even in the rage of prosecution, has been brought before a criminal court. For myself, I never joined in any of these addresses, but what I have delivered concerning them is all I have been able to discover; and government itself, as far as evidence extends, has not been more successful. I would, therefore, recommend it to his Majesty's servants, to attend to the reflections of an eloquent writer [Mr. Burke] at present high in their confidence and esteem, who has admirably exposed the danger and injustice of general accusations. "This way of proscribing the citizens by denominations and general descriptions, dignified by the name of reason of state, and security for Constitutions and commonwealths, is nothing better at bottom than the miserable invention of an ungenerous ambition, which would fain hold the sacred trust of power, without any of the virtues or energies that give a title to it; a receipt of policy, made up of a detestable compound of malice, cowardice, and sloth. They would govern men against their will; but in that government would be discharged from the exercise of vigilance, providence, and fortitude; and, therefore, that they may sleep on their watch, consent to take some one division of the society into partnership of the tyranny over the rest. But let government, in whatever form it may be, comprehend the whole of its justice, and restrain the suspicious by its vigilance; let it keep watch and ward; let it discover by its sagacity, and punish by its firmness, all delinquency against its power, whenever it exists in the overt acts, and then it will be as safe as God and nature intended it should be. Crimes are the acts of individuals, and not of denominations; and, therefore, arbitrarily to class men under general descriptions, in order to proscribe and punish them in the lump for a presumed delinquency, of which, perhaps, but a part-perhaps none at all—are guilty, is, indeed, a compendious method, and saves a world of trouble about proof; but such a method, instead of being law, is an act of unnat-acting upon moral and candid feelings, ought to ural rebellion against the legal dominion of reason and justice; and a vice, in any Constitution that entertains it, which at one time or other will certainly bring on its ruin."'s Gentlemen, let us now address ourselves to the cause, disembarrassed by foreign Crime charged upon the de considerations; let us examine what fendant. the charge upon the record is, and see how it is supported by the proofs. For, unless the whole indictment, or some one count of it, be in form and substance supported by the evidence, the defendant must be acquitted, however in other respects you may be dissatisfied with his imprudence and indiscretion. The indictment charges, "That the defendant being a person of an impious, depraved, seditious disposition, and maliciously intending to disturb the peace of the kingdom; to bring our most serene Sovereign into hatred and contempt with all the subjects of the realm, and to excite them to discontent against Mr. Burke's speech at Bristol. See page 308. the Crown. Gentlemen, my learned friend the Attorney General, in the conclusion of his ad- Concessions of dress to you, did more than ratify the counsel for these propositions. With a liberality and candor very honorable to himself, and highly advantageous to the public which he represents, he said to you, that if the expressions charged upon the defendant should turn out, in your opinion, to be unadvised and unguarded, arising on the sudden, and unconnected with previous bad intention, he should not even insist upon the strictness of the law, whatever it might be, nor ask a verdict, but such as between man and man, be asked and expected. These were the snggestions of his own just and manly disposition, and he confirmed them by the authority of Mr. Justice Foster, whose works are so deservedly celebrated. But judging of my unfortunate client, not from his own charity, but from the false information of others, he puts a construction upon an expression of this great author which destroys much of the intended effect of his doctrine—a doctrine which I will myself read again to you, and by the right interpretation of which I desire the defendant may stand or fall. In the passage read to you, Foster says, "As to mere words, they differ widely from writings in point of real malignity and proper evidence; they are often the effect of mere heat of blood, which in some natures, otherwise well disposed, carrieth the man beyond the bounds of prudence; they are always liable to great misconstruction, from the This act does not make a man guilty without the intention. 66 quences of this concession. Having disposed of this stumbling-block in the way of sound and indulgent judgment, we may now venture to examine this mighty offense as it is proved by the witnesses for the Crown, supposing the facts neither to have been misstated from misapprehension, nor willfully exaggerated. defendant Mr. Frost, the defendant, a gentleman who, upon the evidence, stands wholly unimpeached of any design against the public peace, Evidence or any indisposition to the Constitution against the of the kingdom, appears to have dined examined. at the tavern over the Percy coffee-house. This he did not with a company met upon any political occasion, good or evil, but, as has been admitted in the opening, with a society for the encouragement of agriculture, consisting of most reputable and inoffensive persons, neither talking nor thinking about government, or its concerns: so much for the preface to this dangerous conspiracy. The company did not retire till the ignorance or inattention of the hearers, and too | conviction upon any other footing. Surely, then, often from a motive truly criminal.” Foster it was open to the Crown, upon every principle afterward goes on to contrast such loose words, of common sense, to have proved the previous not relative to any act or design," for so he ex- malice by all previous discourses and previous presses himself, with "words of advice and per- conduct connected with the accusation. And yet, suasion in contemplation of some traitorous pur- after having wholly and absolutely failed in this pose actually on foot or intended, and in prosecu- most important part of the proof, we are gravely tion of it." Comparing this rule of judgment told that the Crown having failed in the affirmawith the evidence given, one would have expect- tive, we must set about establishing the negative! ed a consent to the most favorable judgment for that otherwise we are not within the pale or one would have almost considered the quotation protection of the very first and paramount prinas a tacit consent to an acquittal. But Mr. At- ciples of the law and government of the country! torney General, still looking through the false medium of other men's prejudices, lays hold of the words "otherwise well disposed," and ingrafts upon them this most extraordinary requiMode of evad sition. Show me, he says, that Mr. ing the conse: Frost is otherwise well disposed. Let him bring himself within the meaning of Foster, and then I consent that he shall have the fullest benefit of his indulgent principle of judgment. Good God, gentlemen, are we in an English court of justice? Are we sitting in judgment before the Chief Justice of England, with the assistance of a jury of Englishmen ? And am I in such a presence to be called upon to prove the good disposition of my client, before I can be entitled to the protection of those rules of evidence which apply equally to the just and to the unjust, and by which an evil disposition must be proved before it shall even be suspected? I came here to resist and to deny the existence of legitimate and credible proof of disloy-bottle had made many merry circles; and it apalty and disaffection; and am I to be called upon pears, upon the evidence for the Crown, that Mr. to prove that my client has not been, nor is, dis- Frost, to say the least, had drunk very freely. loyal or disaffected? Are we to be deafened with But was it with the evil intention imputed to panegyrics upon the English Constitution, and yet him that he went into this coffee-house to cirto be deprived of its first and distinguishing feat-culate his opinions, and to give effect to designs ure, that innocence is to be presumed until guilt he had premeditated? He could not possibly be established? Of what avail is that sacred maxim, if, upon the bare assertion and imputation of guilt, a man may be deprived of a rule of evidence, the suggestion of wisdom and humanity, as if the rule applied only to those who need no protection, and who were never accused? If Mr. Frost, by any previous overt acts, by which alone any disposition, good or evil, can be proved, had shown a disposition leading to the offense in question, it was evidence for the Crown. Mr. Wood, whose learning is unquestionable, undoubtedly thought so, when, with the view of crimination, he asked where Mr. Frost had been before the time in question, for he is much too correct to have put an irregular and illegal question in a criminal case: I must, therefore, suppose his right to ask it appeared to him quite clear and established, and I have no doubt that it was so. Why, then, did he not go on and follow it up, by asking what he had done in France what declarations he had made there-or what part he proposed to act here, upon his return? The charge upon the record is, that the words were uttered with malice and premeditation; and Mr. Attorney General properly disclaims a 10 10 One of the counsel for the prosecution. go home without passing through it; for it is proved that there was no other passage into the street from the room where he had dined. But having got there by accident, did he even then stop by design, and collect an audience to scatter sedition? So far from it, that Mr. Yatman, the very witness against him, admits that he interrupted him as he passed in silence toward the street, and fastened the subject of France upon him. Every word which passed (for the whole is charged upon the very record as a dialogue with this witness) was in answer to his entrapping questions, introduced with the familiarity of a very old acquaintance, and in a sort of banter, too, which gave a turn to the conversation that renders it ridiculous, as well as wicked, to convert it into a serious plan of mischief: "Well," says Mr. Yatman, "well, Mr. Equality, so you have been in France-when The defendant's did you arrive? I suppose you are red to France, for equality, and no Kings ?" "O not to England. yes," says Mr. Frost, "certainly I am for equality; I am for no Kings." Now, beyond all question, when this answer was made, whether in jest or in earnest, whether when drunk or sober, it neither had, nor could have, the remotest relation to England or its government. France language refer differently, or it would not be worth living in. There are moments when jarring opinions may be given without inconsistency- when Truth herself may be sported with without the breach of veracity—and where well-imagined nonsense is not only superior to, but is the very index to wit and wisdom. I might safely assert-taking, too, for the standard of my assertion the most honorably correct and enlightened societies in the kingdom-that if malignant spies were prop When I came down this morning, and found, contrary to my expectation, that we Illustration from were to be stuffed into this misera- case supposed. had just abolished its new Constitution of mon- | of justice? Thank God, the world lives very archy, and set up a republic. She was at that moment divided and in civil confusion on the subject; the question, therefore, and the answer, as they applied to France, were sensible and relevant; but to England or to English affairs they had not (except in the ensnaring sequel) the remotest application. Had Yatman, therefore, ended here, the conversation would have ended, and Mr. Frost would have been the next moment in the street. But still the question is forced upon him, and he is asked, "What! no Kings in En-erly posted, scarcely a dinner would end without gland?" although his first answer had no con- a duel and an indictment. nection with England; the question, therefore, was self-evidently a snare, to which he answered, "No Kings in England;" which seemed to be all that was wanted, for in a moment every thing|ble hole in the wall," to consume our constituwas confusion and uproar. Mr. Frost, who had tions: suppose I had muttered along through neither delivered nor meant to deliver any seri- the gloomy passages-"What, is this cursed trious opinion concerning government, and finding al of Hastings going on again? Are we to have himself injuriously set upon, wished, as was most no respite? Are we to die of the asthma in this natural, to explain himself, by stating to those damned corner? I wish to God that the roof around him what I have been just stating to you. would come down and abate the impeachment, But all in vain; they were in pursuit of the im- Lords, Commons, and all together." Such a mortal fame of the very business we are engaged wish, proceeding from the mind, would be desin at this moment, and were resolved to hold their perate wickedness, and the serious expression of advantage. His voice was immediately drowned it a high and criminal contempt of Parliament. by the clamors of insult and brutality; he was Perhaps the bare utterance of such words, even baited on all sides like a bull, and left the coffee-without meaning, would be irreverent and foolish. house without the possibility of being heard either in explanation or defense. An indictment was immediately preferred against him, and from that moment the public ear has been grossly and wickedly abused upon the subject, his character shamefully calumniated, and his cause prejudged before the day of trial. To accuse under such circumstan of all human con ces destructive fidence. end and object of all law and justice, forbid the communication of them; because the spirit of a gentleman, which is the most refined morality, either shuts men's ears against what should not be heard, or closes their lips with the sacred seal of honor. But still, if such expressions had been gravely imputed to me as the result of a malignant mind, seeking the destruction of the Lords and Commons of England, how would they have been treated in the House of Commons on a motion for my expulsion? How! The witness would have been laughed out of the House before he had half Gentlemen it is impossible for me to form any finished his evidence, and would have been voted other judgment of the impression to be too great a blockhead to deserve a worse which such a proceeding altogether character. Many things are, indeed, wrong and is likely to make upon your minds, reprehensible, that neither do nor can become the but from that which it makes upon objects of criminal justice, because the happiness my own. In the first place, is society to be pro-and security of social life, which are the very tected by the breach of those confidences, and in the destruction of that security and tranquillity which constitute its very essence every where, but which, till of late, most emphatically characterized the life of an Englishman? Is government to derive dignity and safety by means which render it impossible for any man who has the least spark of honor to step forward to serve it? Is the time come when obedience to the law and correctness of conduct are not a sufficient protection to the subject, but that he must measure his steps, select his expressions, and adjust his very looks in the most common and private intercourses of life? Must an English gentleman in future fill his wine by a measure, lest, in the openness of his soul, and while believing his neighbors are joining with him in that happy relaxation and freedom of thought which is the prime blessing of life, he should find his character blasted, and his person in a prison? Does any man put such constraint upon himself in the most private moment of his life, that he would be contented to have his loosest and lightest words recorded, and set in array against him in a court erality on this Crim This tacit but well-understood and delightful compact of social life is perfectly con- Society in no sistent with its safety. The security of free governments, and the unsus- subject. pecting confidence of every man who lives under them, are not only compatible, but inseparable. It is easy to distinguish where the public duty calls for the violation of the private one. inal intention, but not indecent levities-not even grave opinions unconnected with conduct, are to be exposed to the magistrate; and when men (which happens but seldom), without the honor or the sense to make the due distinctions, force complaints upon governments which they can neither approve of nor refuse to act upon, it becomes the 11 The King's Bench sat in the small Court of Common Pleas. Evidence of this sions of law. office of juries—as it is yours to-day-to draw | ets without a warrant founded upon complaint. the true line in their judgments, measuring men's Constructed by man to regulate human infirmiconduct by the safe standards of human life and ties, and not by God to guard the purity of angels, experience. it leaves to us our thoughts, our opinions, and our conversations, and punishes only overt acts of contempt and disobedience to her authority. Gentlemen, this is not the specious phrase of an advocate for his client; it is not even my exposition of the spirit of from the provi our Constitution; but it is the phrase and letter of the law itself. In the most critical conjunctures of our history, when government was legislating for its own existence and continuance, it never overstepped this wise moderation. To give stability to establishments, it occasionally bridled opinions concerning them, but its punishments, though sanguinary, laid no snares for thoughtless life, and took no man by surprise. Gentlemen, the misery and disgrace of society, under the lash of informers, running before the law and hunting men through the privacies of domestic life, is described by a celebrated speaker [Mr. Burke] with such force and beauty of eloquence, that I will close my observations on this part of the subject by repeating what can not, I am persuaded, be uttered among Englishmen without sinking deep into their hearts: "A mercenary informer knows no distinction. Under such a system, the obnoxious people are slaves, not only to the government, but they live at the mercy of every individual; they are at once the slaves of the whole community and of every part of it; and the worst and most unmerciful men are those on whose goodness they must depend. In this situation men not only shrink from the frowns of a stern magistrate, but are obliged to fly from their very species. The seeds of destruction are sown in civil intercourse, and in social habitudes. The blood of wholesome kindred is infected. Their tables and beds are surrounded with snares. All the means given by Providence to make life safe and comfortable are perverted into instruments of terror and torment. This species of universal subserviency, that makes the very servant who waits behind your chair the arbiter of your life and fortune, has such a tendency to degrade and abase mankind, and to deprive them of that assured and liberal state of mind which alone can make us what we ought to be, that I vow to God, I would sooner bring myself to put a man to immediate death for opinions I disliked, and so to get rid of the man and his opinions at once, than to fret him with a feverish being, tainted with the jail distemper of a contagious servitude, to keep him above ground, an animated mass of putrefaction, corrupted himself, and corrupting all about him."12 Of this the act of Queen Anne,13 which made it high treason to deny the right of Parliament to alter the succession, is a striking example. The hereditary descent of the Crown had been recently broken at the Revolution by a minority of the nation, with the aid of a foreign force, and a new inheritance had been created by the authority of the new establishment, which had but just established itself. Queen Anne's title, and the peaceable settlement of the kingdom under it, depended wholly upon the constitutional power of Parliament to make this change. The superstitions of the world and reverence for antiquity, which deserves a better name, were against this power and the use which had been made of it; the dethroned King of England was living in hostile state at our very doors, supported by a powerful monarch at the head of a rival nation-and our own kingdom itself full of factious plots and conspiracies, which soon after showed themselves in open rebellion. If ever, therefore, there was a season when a narrow jealousy could have been excusable in a government-if ever there was a time when the sacrifice of some private liberty to common se If these sentiments apply so justly to the rep-curity would have been prudent in a people, it All private espionage pecul. iarly adverse to tions. robation of persecution for opinions was at such a conjuncture. Yet mark the re-even for opinions which the laws, serve of the crown, and the prudence of our anEnglish institu- however absurdly, inhibit-for opin- cestors in the wording of the statute. Although ions though certainly and maturely en- the denial of the right of Parliament to alter the tertained-though publicly professed, and though succession was tantamount to the denial of all followed up by corresponding conduct; how ir- legitimate authority in the kingdom, and might resistibly do they devote to contempt and exe- be considered as a sort of abjuration to the laws, cration all eaves-dropping attacks upon loose con- yet the statute looked at the nature of man, and versations, casual or convivial, more especially to the private security of individuals in society, when proceeding from persons conforming to all while it sought to support the public society the religious and civil institutions of the state, itself. It did not, therefore, dog men into tavunsupported by general and avowed profession, erns and coffee-houses, nor lurk for them at corand not merely unconnected with conduct, but ners, nor watch for them in their domestic enscarcely attended with recollection or conscious- joyments. The act provides, "That every perness! Such a vexatious system of inquisition, son who should maliciously, advisedly, and dithe disturber of household peace, began and end-rectly, by writing or printing, affirm that the ed with the Star Chamber. The venerable law of England never knew it. Her noble, dignified, and humane policy soars above the little irregularities of our lives, and disdains to enter our clos 12 See Mr. Burke's speech at Bristol, page 301. Y Y Queen was not the rightful Queen of these realms, or that the Pretender had any right or title to the Crown, or that any other person had any right or title, otherwise than according to 13 Sixth Anne, c. 7. |