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ily admit, that if Mr. Bingham's acquaintance | the way, and in the ardors of mutual love, and in with the lady had commenced subsequent to the the simplicities of rural life, let them lay the founmarriage, the argument would be irresistible, and dation of a vigorous race of men, firm in their the criminal conclusion against him unanswera- bodies, and moral from early habits; and instead ble. But has Mr. Howard a right to instruct his of wasting their fortunes and their strength in the counsel to charge my honorable client with se- tasteless circles of debauchery, let them light up duction, when he himself was the SEDUCER? My their magnificent and hospitable halls to the genlearned friend deprecates the power of what he try and peasantry of the country, extending the terms my pathetic eloquence. Alas, gentlemen! consolations of wealth and influence to the poor. if I possessed it, the occasion forbids its exertion, Let them but do this; and, instead of those danbecause Mr. Bingham has only to defend himself, gerous and distracting divisions between the difand can not demand damages from Mr. Howard ferent ranks of life, and those jealousies of the for depriving him of what was his by a title su- multitude so often blindly painted as big with deperior to any law which man has a moral rightstruction, we should see our country as one large to make. Mr. Howard was NEVER MARRIED! and harmonious family, which can never be acGod and nature forbid the bans of such a marriage.complished amid vice and corruption, by wars or If, therefore, Mr. Bingham this day could have, by me, addressed to you his wrongs in the character of a plaintiff demanding reparation, what damages might I not have asked for him; and, without the aid of this imputed eloquence, what damages might I not have expected?

turn.

I would have brought before you a noble youth, who had fixed his affections upon one of the most beautiful of her sex, and who enjoyed hers in reI would have shown you their suitable condition; I would have painted the expectation of an honorable union; and would have concluded by showing her to you in the arms of another, by the legal prostitution of parental choice in the teeth of affection; with child by a rival, and only reclaimed at last, after so cruel and so afflicting a divorce, with her freshest charms despoiled, and her very morals in a manner impeached, by asserting the purity and virtue of her original and spotless choice. Good God! imagine my client to be PLAINTIFF, and what damages are you not prepared to give him? and yet he is here as DEFENDANT, and damages are demanded against HIM. Oh, monstrous conclusion!

Gentlemen, considering my client as perfectly safe under these circumstances, I may spare a moment to render this cause beneficial to the public.

It involves in it an awful lesson; and more instructive lessons are taught in courts of justice than the Church is able to inculcate. Morals come in the cold abstract from pulpits; but men smart under them practically when we lawyers are the preachers.

Admonitions to

of England aris

facts.

Let the aristocracy of England, which trembles so much for itself, take heed to the aristocracy its own security. Let the nobles of ing out of such England, if they mean to preserve that pre-eminence which, in some shape or other, must exist in every social community, take care to support it by aiming at that which is creative, and alone creative, of real superiority. Instead of matching themselves to supply wealth, to be again idly squandered in debauching excesses, or to round the quarters of a family shield; instead of continuing their names and honors in cold and alienated embraces, amid the enervating rounds of shallow dissipation, let them live as their fathers of old lived before them. Let them marry as affection and prudence lead

treaties, by informations ex officio for libels, or by any of the tricks and artifices of the state. Would to God this system had been followed in the instance before us! Surely the noble house of Fauconberg needed no further il- Their applicalustration; nor the still nobler house tion to this case. of Howard, with blood enough to have inoculated half the kingdom. I desire to be understood to make these observations as general moral reflections, and not personally to the families in question; least of all to the noble house of Norfolk, the head of which is now present; since no man, in my opinion, has more at heart the liberty of the subject and the honor of our country.

produce further

Having shown the feeble expectation of happiness from this marriage, the next Nothing done by point to be considered is this: Did Mr. Bingham to Mr. Bingham take advantage of that alienation. circumstance to increase the disunion? I answer, No. I will prove to you that he conducted himself with a moderation and restraint, and with a command over his passions, which I confess I did not expect to find, and which in young men is not to be expected. I shall prove to you, by Mr. Greville, that, on this marriage taking place with the betrothed object of his affections, he went away a desponding man. His health declined; he retired into the country to restore it; and it will appear that for months afterward he never saw this lady until by mere accident he met her. And then, so far was he from endeavoring to renew his connection with her, that she came home in tears, and said he frowned at her as he passed. This I shall prove to you by the evidence in the cause.

Gentlemen, that is not all. It will appear that, when he returned to town, he took no manner of notice of her; and that her unhappiness was beyond all power of expression. How, indeed, could it be otherwise, after the account I have given you of the marriage? I shall prove, besides, by a gentleman who married one of the daughters of a person to whom this country is deeply indebted for his eminent and meritorious service [Marquis Cornwallis], that, from her utter reluctance to her husband, although in every respect honorable and correct in his manners and

2 This was during the progress of those oppressive state trials in which Mr. Erskine was so largely engaged.

his wife's con

duct.

he never considered Mr. Bingham as an object of resentment or reproach. He was the author of his own misfortunes, and I can conceive him to have exclaimed, in the language of the poet, as they parted,

"Elizabeth never loved me.

[brings

Let no man, after me, a woman wed
Whose heart he knows he has not; though she
A mine of gold, a kingdom, for her dowry.
For let her seem, like the night's shadowy queen,
Cold and contemplative-he can not trust her:
The worst of sorrows, and the worst of shames."
She may, she will, bring shame and sorrow on him;

a divorce, but not one that aathorizes dama

You have, therefore, before you, gentlemen, two young men of fashion, both of The suit neces noble families, and in the flower of sary to procure youth: the proceedings, though not collusive, can not possibly be vindic- ges tive; they are indispensably preliminary to the dissolution of an inauspicious marriage, which never should have existed. Mr. Howard may, then, profit by a useful though an unpleasant experience, and be happier with a woman whose mind he may find disengaged; while the parents of the rising generation, taking warning from the lesson which the business of the day so forcibly teaches, may avert from their families, and the public, that bitterness of disunion, which, while human nature continues to be itself, will ever be produced to the end of time, from similar conjunctures.

behavior, he was not allowed even the privileges | union, was interrupted by a previous act of his of a husband, for months after the marriage. own. In that hour of separation, I am persuaded This I mentioned to you before, and only now repeat it in the statement of the proofs. Nothing better, indeed, could be expected. Who can control the will of a mismatched, disappointed woman? Who can restrain or direct her passions? I beg leave to assure Mr. Howard (and I hope he will believe me when I say it), that I think his conduct toward this lady was just such as might have been expected from a husband who saw himself to be the object of disgust to the woman he had chosen for his wife, and it is with this view only that I shall call a gentleman to say how Mr. Howard spoke of this supposed, but, in my mind, impossible object of his adoration. How, indeed, is it possible to adore a woman when you know her affections are riveted to another? It is unnatural! A man may have that appetite which is common to the brutes, and too indelicate to be described; but he can never retain an affection which is returned with detestation. Lady Elizabeth, I understand, was, at one Exasperation of time, going out in a phaeton: "There Mr. Howard at she goes," said Mr. Howard; "God damn her I wish she may break her neck; I should take care how I got another." This may seem unfeeling behavior; but in Mr. Howard's situation, gentlemen, it was the most natural thing in the world, for they cordially hated one another. At last, however, the period arrived when this scene of discord became insupportable, and nothing could exceed the generosity and manly feeling of the noble person (the Duke of Gentlemen, I have endeavored so to conduct Norfolk), whose name I have been obliged to use this cause as to offend no man. I have At least the in the course of this cause, in his interference to guarded against every expression which damages effect that separation which is falsely imputed to could inflict unnecessary pain; and, in merely Mr. Bingham. He felt so much commiseration doing so, I know that I have not only for this unhappy lady, that he wrote to her in the served my client's interests, but truly representmost affecting style. I believe I have got a let-ed his honorable and manly disposition. As the ter from his Grace to Lady Elizabeth, dated Sunderland, July the 27th, that is, three days after their separation; but before he knew it had actually taken place it was written in consequence of one received from Mr. Howard upon the subject. Among other things he says, "I sincerely feel for you." Now if the Duke had not known at that time that Mr. Bingham had her earliest and legitimate affections, she could not have been an object of that pity which she received. She was, indeed, an object of the sincerest pity; and the sum and substance of this mighty seduction will turn out to be no more than this, that she was affectionately received by Mr. Bingham after the final period of voluntary separation. At four o'clock this miserable couple had parted by consent, and Their separation. the chaise was not ordered till she might be considered as a single woman by the abandonment of her husband. Had this separation been legal and formal, I should have applied to his Lordship, upon the most unquestionable authorities, to nonsuit the plaintiff; for this action being founded upon the loss of the wife's society, it must necessarily fall to the ground if it appears that the society, though not the marriage

should be

nominal

case before you can not be considered by any reasonable man as an occasion for damages, I might here properly conclude. Yet, that I may omit nothing which might apply to any possible view of the subject, I will close by reminding you that my client is a member of a numerous family; that, though Lord Lucan's fortune is considerable, his rank calls for a correspond. ing equipage and expense; he has other children-one already married to an illustrious nobleman, another yet to be married to some man who must be happy indeed if he shall know her value. Mr. Bingham, therefore, is a man of no fortune; but the heir only of, I trust, a very distant expectation. Under all these circumstances, it is but fair to believe that Mr. Howard comes here for the reasons I have assigned, and not to take money out of the pocket of Mr. Bingham to put into his own. You will, therefore, consider, gentlemen, whether it would be creditable for you to offer what it would be disgraceful for Mr. Howard to receive.

So completely had Mr. Erskine borne away the minds of the jury by this speech, that as some of them afterward stated, they had resolved

to bring in a verdict for the defendant, with macy to be renewed which led to such deploraheavy damages to be paid him by the plaintiff!ble consequences-that he was liable to render And even when the judge reminded them, in his a compensation to the plaintiff under these circharge, that no blame could be imputed to Mr. cumstances-and that they could not be justified Howard, who was left in total ignorance of the in affixing a brand upon the latter by giving previous engagement-that his wife's vows at the trifling damages-still they gave him but five altar ought to have been respected by Mr. Bing- hundred pounds, when the sum usually awarded, ham, not only at first, but to the end-that the at that time, between persons of a wealthy condefendant ought never to have allowed an inti-dition, was from ten to fifteen thousand pounds.

SPEECH

OF MR. ERSKINE IN BEHALF OF THOMAS HARDY WHEN INDICTED FOR HIGH TREASON, DELIV. ERED BEFORE THE COURT OF KING'S BENCH, NOVEMBER 1, 1794.

INTRODUCTION.

THOMAS HARDY was a shoemaker in London, and secretary of the "London Corresponding Society," whose professed object was to promote parliamentary reform-having branch societies in most parts of the kingdom. Rash and inflammatory speeches were undoubtedly made at the meetings of these associations, and many things contained in their letters among themselves, and their addresses to the public, were highly objectionable. "The grand object of these associations," says Mr. Belsham, who probably was well acquainted with their designs, "was unquestionably to effect a reform in Parliament upon the visionary, if not pernicious principles of the Duke of Richmond-universal suffrage and annual election. They contained a considerable proportion of concealed republicans, converts to the novel and extravagant doctrine of Paine; and there can be no doubt but that these people hoped, and perhaps in the height of their enthusiasm believed, that a radical reform in Parliament upon democratic principles would eventu. ally lead to the establishment of a democratic government." Still, it is generally understood that the bulk of the members were attached to the Constitution.

The government became alarmed at their proceedings, and instead of prosecuting for a misdemeanor those who could be proved to have used seditious language, they unhappily determined, at the instance of Lord Loughborough, to indict Hardy, Horne Tooke, and eleven others for high treason.

The act laid hold of was that of proposing a National Convention, avowedly for the purpose of promot ing parliamentary reform; but the government maintained that the real design was to use the convention, if assembled, as an instrument of changing the government. The indictment, therefore, alleged, 1. That Hardy and the others, in calling this convention, did conspire to excite insurrection, subvert and alter the Legislature, depose the King, and "bring and put our said Lord the King to death."

2. The overt acts charged were attempting to induce persons, through the press, and by letters and speeches, to send delegates to a convention called for the above-mentioned purposes; and also the preparation of a few pikes in some populous places, which, as the parties concerned maintained, were provided as a defense against illegal attacks.

The case was opened on Tuesday, the 28th of October, 1794, by a speech from the Attorney General, Sir John Scott [afterward Lord Eldon], of nine hours in length. Never before had a trial for treason occupied more than one day; but in this instance the court sat during an entire week until after midnight, commencing every morning at eight o'clock. The Crown occupied the whole time, till after midnight Friday evening, with evidence against the prisoner; and Mr. Erskine then begged an adjournment to a somewhat later hour than usual the next day, that he might have time to look over his papers and make ready for the defense. To this the court objected as an improper delay of the jury, and proposed that the prisoner's witnesses should be examined while Mr. Erskine was preparing his reply. The following dialogue then ensued: Erskine. “I should be sorry to put the jury to any inconvenience; I do not shrink from my duty, but I assure your Lordship that during the week I have been nearly without natural rest, and that my physical strength is quite exhausted." Eyre, C. J. "What is it you ask for?" Erskine. "As I stated be. fore, the Attorney General found it necessary to consume nine hours; I shall not consume half that time if I have an opportunity of doing that which I humbly request of the court." Eyre, C. J. “We have of fered you an expedient, neither of you say whether you accept it?" Mr. Gibbs, the other counsel for the prisoner, spurned the proposal, and Mr. Erskine requested an adjournment until twelve the next day, as essential to the fair defense of one who was on trial for his life. The Chief Justice, with apparent reluctance, agreed to eleven. Erskine. "I should be glad if your Lordships would allow another hour." Eyre, C. J. I feel so much for the situation of the jury, that, on their account, I can not think of it." Erskine. "My Lord, I never was placed in such a situation in the whole course of my practice before; however, I will try to do my duty." Jury. "My Lord, we are extremely willing to allow Mr. Erskine another hour, if your Lordship thinks proper." Eyre, C.J. "As the jury ask it for you, I will not refuse you."

"Cheered by this good omen," says Lord Campbell, "Erskine went home, and, after a short repose, arranged the materials of 'a speech which will last forever.' He began at two o'clock on Saturday afternoon, and spoke seven hours-a period that seemed very short to his hearers, and in reality was so, considering the subjects he had to deal with, and the constitutional learning, powerful reasoning, the wit, and the eloquence which he condensed into it. This wonderful performance must be studied as a whole by all who are capable of understanding its merits; for the enunciation of principles is so connected with the inferences to be drawn from the evidence, and there is such an artful, though seemingly natural succession of topics, to call for the pity and the indignation of the jury-to captivate their affections and to convince their understandings-that the full beauty of detached passages can not be properly appreciated."

Thanks to the

jury for their indulgence.

SPEECH, &c.

GENTLEMEN OF THE JURY,-Before I proceed have occasion to reflect a little upon its probable to the performance of the momentous causes; but, waiting a season for such reflections, duty which is at length cast upon me, let us first consider what the evil is which has I desire, in the first place, to return been so feelingly lamented as having fallen on my thanks to the judges for the indulgence I have that unhappy country. It is, that under the doreceived in the opportunity of addressing you at minion of a barbarous state necessity, every prothis later period of the day than the ordinary sit-tection of law is abrogated and destroyed. It ting of the court, when I have had the refreshment which nature but too much required, and a few hours' retirement, to arrange a little in my mind that immense matter, the result of which I must now endeavor to lay before you. I have to thank you, also, gentlemen, for the very condescending and obliging manner in which you so readily consented to this accommodation. The court could only speak for itself, referring me to you, whose rest and comfort had been so long interrupted. I shall always remember your kind

ness.

stowed on the Constitution are merited only as

justice.

Before I advance to the regular consideration The praises be- of this great cause, either as it regards the evidence or the law, I wish first to put aside all that I find and impartial in the speech of my learned friend, the Attorney General, which is either collateral to the merits, or in which I can agree with him. First, then, IN THE NAME OF THE PRISONER, and speaking his sentiments, which are well known to be my own also, I concur in the eulogium which you have heard upon the Constitution of our wise forefathers. But before this eulogium can have any just or useful application, we ought to reflect upon what it is which entitles this Constitution to the praise so justly bestowed upon it. To say nothing at present of its most essential excellence, or rather the very soul of it, viz., the share the people ought to have in their government, by a pure representation, for the assertion of which the prisoner stands arraigned as a traitor before you what is it that distinguishes the government of England from the most despotic monarchies? What but the security which the subject enjoys in a trial and judgment by his equals; rendered doubly secure as being part of a system of law which no expediency can warp, and which no power can abuse with impunity.

French Revolu

The Attorney General's second preliminary The evils of the observation I equally agree to. I tion a warning anxiously wish with him that you laws to the injury may bear in memory the anarchy of private right. which is desolating France. Before I sit down, I may, perhaps, in my turn,

not to stretch the

is, that no man can say, under such a system of alarm and terror, that his life, his liberty, his reputation, or any one human blessing, is secure to him for a moment. It is, that if accused of federalism, or moderatism, or incivism, or of whatever else the changing fashions and factions of the day shall have lifted up into high treason against the state, he must see his friends, his family, and the light of heaven no more: the accusation and the sentence being the same, following one another as the thunder pursues the flash. Such has been the state of Englandsuch is the state of France; and how, then, since they are introduced to you for application, ought they, in reason and sobriety, to be applied? If this prosecution has been commenced (as is asserted) to avert from Great Britain the calamities incident to civil confusion, leading in its issues to the deplorable condition of France, I call upon you, gentlemen, to avert such calamity from falling upon my client, and, through his side, upon yourselves and upon our country. Let not him suffer under vague expositions of tyrannical laws, more tyrannically executed. Let not him be hurried away to predoomed execution, from an honest enthusiasm for the public safety. I ask for him a trial by this applauded Constitution of our country. I call upon you to administer the law to him, according to our own wholesome institutions, by its strict and rigid letter. However you may eventually disapprove of any part of his conduct, or, viewing it through a false medium, may think it even wicked, I claim for him, as a subject of England, that the law shall decide upon its criminal denomination. I protest, in his name, against all appeals to speculations concerning consequences, when the law commands us to look only to intentions. If the state be threatened with evils, let Parliament administer a prospective remedy, but let the prisoner hold his life under the law.'

1 Nothing could be more admirable than the turn given in this exordium to the remarks of the Attorney General. The prisoner and his eleven companions were in great danger of being sacrificed to the dread of French principles. The jury, though

conspired to assemble a convention to depose the King, but that they conspired and compassed his

Gentlemen, I ask this solemnly of the court, | power, and government thereof." This is the whose justice I am persuaded will afford it to first and great leading overt act in the indictme. I ask it more emphatically of you, the ment. And you observe that it is not charged jury, who are called upon your oaths to make a as being treason substantively and in itself, but true deliverance of your countryman from this only as it is committed in pursuance of the treacharge. But lastly, and chiefly, I implore it of son against the King's person, antecedently imHim in whose hands are all the issues of life-puted. For the charge is not, that the prisoners whose humane and merciful eye expands itself over all the transactions of mankind; at whose command nations rise and fall, and are regener-death, and that, in order to accomplish that wickated; without whom not a sparrow falleth to the ground-I implore it of God himself, that He will fill your minds with the spirit of justice and of truth, so that you may be able to find your way through the labyrinth of matter laid before youa labyrinth in which no man's life was ever before involved in the annals of British trial, nor, indeed, in the whole history of human justice or injustice.

[blocks in formation]

A conspiracy

the natural death of the King.

The indictment charges that the prisoners did Crime alleged. maliciously and traitorously conspire, to bring about compass, and imagine, "to bring and put our Lord the King to death." And that to fulfill, perfect, and bring to effect their most evil and wicked purpose (that is to say, of bringing and putting the King to death), "they met, conspired, consulted, and agreed among themselves, and other false traitors unknown, to cause and procure a convention to be assembled within the kingdom, with intent" (I am reading the very words of the indictment, which I entreat you to follow in the notes you have been taking with such honest perseverance) -"with intent, and in order that the persons so assembled at such convention, should and might traitorously, and in defiance of the authority, and against the will of Parliament, subvert and alter, and cause to be subverted and altered, the Legislature, rule, and government of the country, and to depose the King from the royal state, title,

ed and detestable purpose (i. e., in order to fulfill the traitorous intention of the mind against his life), they conspired to assemble a convention with a view to depose him. The same observation applies alike to all the other counts or overt acts upon the record, which manifestly, indeed, lean upon the establishment of the first for their support. They charge the publication of different writings, and the provision of arms, not as distinct offenses, but as acts done to excite to the assembling of the same convention, and to maintain it when assembled ; but, above all, and which must never be forgotten, because they also uniformly charge these different acts as committed in fulfillment of the same traitorous purpose, тo BRING THE KING TO DEATH. You will, therefore, have three distinct matters for consideration upon this trial; First. What share (if any) the prisoner had, in concert with others, in assembling any convention, or meeting of subjects within this kingdom; Second. What were the acts to be done by this convention when assembled ; and, Third. What was the view, purpose, and intention of those who projected its existence This third consideration, indeed, comprehends, or rather precedes and swallows up the other two. | Because, before it can be material to decide upon the views of the convention, as pointed to the subversion of the rule and order of the King's political authority (even if such views could be ascribed to it, and brought home even personally to the prisoner), we shall have to examine whether that criminal conspiracy against the established order of the community was hatched and engendered by a wicked contemplation to destroy the natural life and person of the King, and whether the acts charged and established by the evidence were done in pursuance and in fulfillment of the same traitorous purpose.

Further proof

Gentlemen, this view of the subject is not only correct, but self-evident. The subversion of the King's political govern- that this is the ment, and all conspiracies to subvert it, are crimes of great magnitude and enormity, which the law is open to punish; but neither of

crime alleged.

gentlemen of high intelligence and respectability, were zealous adherents of the ministry, and committed to the support of their measures as members of the Loyal Associations of the metropolis. Most of the evidence for the Crown had been previously published, and undoubtedly read by the jury under circumstances calculated to produce the worst impressions on their minds. The subject had been brought before Parliament by Mr. Pitt. The case had been prejudged; a conspiracy had been charged on the prisoner and his companions by an act of Parliament; and the Habeas Corpus Act had actually been suspended through fear of this conspiracy! Under these circumstances, it seemed hardly possible for any jury to give the prisoner a fair hear ing. This accounts for the extreme anxiety manifested by Mr. Erskine throughout the whole of this speech. The lives of eleven others besides the prisoner were suspended on the issue of this one argu-nate to the former; so that the thing to be proved These considerations will induce the read- against the prisoners was, that in the alleged coner to follow Mr. Erskine, with unwonted interest, spiracy they directly intended to destroy the natural through all the windings of this intricate case. life of the King.

ment.

2 Here Mr. Erskine takes his first stand, and gives us the foundation of the entire legal argument which follows. There were two kinds of treason-one the "compassing the King's death," and the other "levying war to depose him." Now the indictment had charged the former on the prisoner; and although it had also mentioned the latter, this became subordi

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