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THOMAS ERSKINE, 1750-1823.
Thomas (Lord) Erskine, third son of the Earl of Buchan, was born in the year 1750, and was educated at the University of St. Andrews. After serving six years in the navy and army, he was induced, at the earnest request of his mother, who saw his talenıs, and jestingly said he must be Lord Chancellor, to quit the military profession and prepare himself for the law. In 1778, he was called to the bar, where his success was immediate and remarkable. In a case of libel, in which he advocated the cause of the defendant, Capt. Baillie,' he displayed so much eloquence and talent that the legal world was astonished, and nearly thirty briefs were put into his hands before he left the court. In 1781, he appeared as counsel for Lord George Gordon in what was called a case of constructive treason, and by his wonderful skill, and eloquence, and legal learning procured the acquit. tal of his client, and thus, for the time, gave the deathblow to the tremen. dous doctrine of constructive treason.
But there is nothing in the life of this eminent man which reflects so much honor on his memory as his exertions in defence of the privileges of juries. The rights of those pro tempore judges he strenuously maintained upon all occasions, particularly in the celebrated trial of the Dean of St. A saph for libel, in 1784, when Justice Buller refused to receive the ver. dict of “guilty of publishing only,” as returned by the jury. In 1789, he again displayed his wonderful powers in the defence of Mr. Stockdale, a bookseller, who was tried by the government for publishing what was charged as a libellous pamphlet, in favor of the celebrated Warren Hast
. On this occasion, he showed that the courage which marked his professional life was not acquired after the success which rendered it a safe and a cheap virtue; but, being naturally inherent in the man, was displayed at a moment when attended with great risks. In the course of his eloquent argument, he was inveighing very strongly against a certain "noble lord,” when the judge, Lord Mansfield, interrupted him, and remarked that “the Lord was not before the court.” “I know he is not,” was the bold reply, “but, for that very reason, I will bring him before the court. I will drag him to light who is the dark mover behind this scene of iniquity.”
The following is a part of the spirited dialogue that ensued when the jury returned their verdict. It shows the noble daring and courage of Erskine.
Mr. Erskine.--Is the word only to stand part of your verdict ?
Mr. Justice Buller.—Then the verdict must be misunderstood; let me understand the jury.
Mr. Erskine:-(With great spirit.) The jury do understand their verdict. Mr. Justice Buller.-Sir, I will not be interrupted.
Mr. Erskine.-I stand here as an advocate for a brother citizen, and I desire that the word only may be recorded.
Mr. Justice Buller.-Sit down, sir; remember your duty, or I shall be obliged to proceed in another manner.
Mr. Erskine.—Your lordship may proceed in what manner you think fit. I know my duty as well as your lordship knows yours. I shall not alter my conduct.
ings. This is one of his very finest, if not the best of all his speeches; and, " whether we regard the wonderful skill with which the argument is conducted, the soundness of the principles laid down, and their happy ap. plication to the case, the vividness of fancy with which these are illustrated, and the touching language in which they are conveyed, it is justly to be regarded as a consummate specimen of the art of addressing a jury." This masterly defence procured a clear acquittal for Stockdale, although the fact of publication was admitted.
But the most arduous effort of his professional life arose out of the part he took in the defence of Hardy, Horne Tooke, and others, in 1794, charged with high treason. These trials lasted several weeks, and the ability dis. played by Mr. Erskine on this memorable occasion was acknowledged and admired by men of all parties. Though the whole force of the bar was marshalled against the prisoners, and every effort used to beat down and paralyze their undaunted defender, his spirit rose superior to every difficulty, and his consummate talents shone forth in their native lustre. His indefatigable patience, his sleepless watchfulness, his unceasing activity of body and mind, his untameable spirit, his quickness and sub. tilty of intellect, together with a Herculean strength of constitution, counterbalanced the host to which he was opposed." In 1797, he delivered a most admirable speech-speaking more as a man than a lawyer-on the prosecution of a Mr. Williams, the printer and publisher of that foul, infidel book, “ The Age of Reason,” by Thomas Paine. Some passages of this speech are equal to anything he ever delivered.
In politics, Mr. Erskine was on the liberal side, acting with Fox and olhers of that party. He strenuously opposed the war with France, and published a pamphlet against it, entitled “ A View of the Causes and Consequences of a War with France," which had an immense sale. On the death of Mr. Pitt, in 1806, when Lord Grenville formed a new administra. tion, Mr. Erskine was created a peer, and elevated to the dignity of Lord High Chancellor of England His public career may be said to have termi. nated with this event, and the remainder of his life was undistinguished by any great exertion. Whilst accompanying one of his sons by sea to Edinburgh, he was seized with an inflammation of the chest, which compelled him to land at Scarborough. He reached Scotland by easy stages, but expired on the 17th of November, 1823, at the seat of his brother, a few miles from Edinburgh.
The eloquence of Lord Erskine was characterized not merely by the elegance of its diction and the graces of its style, but was peeuliarly remark. able for its grace and earnestness. As an advocale," he possessed the power of summoning upon the instant all the resources of his mind, and bringing them to bear upon the subject before the court with extraordinary effect. In this respect, his speeches bear a resemblance to those of Mr. Pitt, whilst they far surpass them in impassioned fervor, in brilliancy of imagination, in copiousness of imagery, and in that quality of the mind expressed by the emphatic word-genius. His dexterity was likewise unrivalled at the bar, and these qualifications, united with a courage which nothing could daunt, and a firmness which was never overcome, rendered him almost irresistible on the defensive side of political persecution. In stemming the ride of state prosecutions, this single patriot may be said to have saved his country from the horrors of a general proscription."!
TRAITOROUS ACTS AND INTENTIONS NECESSARY TO CONSTITUTE
Gentlemen, I have no manner of doubt that you will, I am sure you cannot but see, notwithstanding my great inability, increased by a perturbation of mind (arising, thank God! from no dishonest cause), that there has been not only no evidence on the part of the crown to fix the guilt of the late commotions upon the prisoner, but that, on the contrary, we have been able to resist the probability—I might almost say the possibility—of the charge, not only by living witnesses, whom we only ceased to call because the trial would never have ended, but by the evidence of all the blood that has paid the forfeit of that guilt already—an evidence that, I will take upon me to say, is the strongest and most unanswerable which the combination of natural events ever brought together since the beginning of the world for the deliverance of the oppressed :-since, in the late numerous trials for acts of violence and depredation, though conducted by the ablest ser
· Encyclopædia Britannica. Read an excellent article on Lord Erskine in the 16th volume of the "Edinburgh Review ;'' also, an admirable sketch of his character in that most instructive and eloquent book, “ Stanton's Reforms and Reformers of Great Britain.” From this I must make the following extract :
“ Erskine's speech for Hardy (whose case was very critical, and the first one tried) is one of the most splendid specimens of popular juridical eloquence on record. Owing to the running contests on points of law and evidence, constantly kept up while the trial went on, he lost his voice the night before he was to address the jury. It returned to him in the morning, and he was able to crowd seven hours full of such oratory as is rarely heard in our day. He regarded Hardy's acquittal or conviction not only as ihe turning point in the fate of his eleven associates, but as settling the question whether constructive treason should for long years track blood through the land, or its murderous steps be now brought to a final stand. He made a superhuman effort for victory, and achieved it. Profound as was his legal learning, eminent as were his reasoning faculties, classical as was his taste, transcendent as were his oratorical powers, all conspiring to place him not only at the head of the English bar, but to rank him as the first advocate of modern times; yet all were overshadowed by the inflexible courage and hearty zeal with which he met this crisis of British freedom. With the combined power of the king, his ministers, and his judges, arrayed against his clients and against him as their representative, seeking their blood and his degradation, he cowered not, but maintained the home-born rights of his proscribed fellow-subjects with arguments so matchless, with eloquence so glowing, with courage so heroic, with constancy so generous, that his name will ever find a place in the hearts of all who prefer the rights of man to the prerogatives of power."
vants of the crown, with a laudable eye to the investigation of the subject which now engages us, no one fact appeared which showed any plan, any object, any leader ;-since, out of fortyfour thousand persons who signed the petition of the Protestants, not one was to be found among those who were convicted, tried, or even apprehended on suspicion ;-and since, out of all the felons who were let loose from prisons, and who assisted in the destruction of our property, not a single wretch was to be found who could even attempt to save his own life by the plausible promise of giving evidence to-day.
What can overturn such a proof as this? Surely a good man might, without superstition, believe that such an union of events was something more than natural, and that the Divine Providence was watchful for the protection of innocence and truth.
I may now, therefore, relieve you from the pain of hearing me any longer, and be myself relieved from speaking on a subject which agitates and distresses me. Since Lord George Gordon stands clear of every hostile act or purpose against the legislature of his country, or the properties of his fellow-subjects—since the whole tenor of his conduct repels the belief of the traitorous in. tention charged by the indictment—my task is finished. I shall make no address to your passions—I will not remind you of the long and rigorous imprisonment he has suffered—I will not speak to you of his great youth, of his illustrious birth, and of his uniformly animated and generous zeal in Parliament for the constitution of his country. Such topics might be useful in the balance of a doubtful case; yet, even then, I should have trusted to the honest hearts of Englishmen to bave felt them without excitation. At present, the plain and rigid rules of justice and truth are sufficient to cntitle me to your verdict.
Speech on the Trial of Lord George Gordon.
PRINCIPLES OF THE LAW OF LIBEL.
Gentlemen, the question you have therefore to try upon all this matter is extremely simple. It is neither more nor less than this : At a time when the charges against Mr. Ilastings were, by the implied consent of the Commons, in every hand and on every table-when, by their managers, the lightning of eloquence was incessantly consuming him, and flashing in the eyes of the public -when every man was with perfect impunity saying, and writing, and publishing just what he pleased of the supposed plunderer and devastator of nations----Would it have been criminal in Mr. Hastings himself to have reminded the public that he was a native of this free land, entitled to the common protection of her justice, and that he had a defence in his turn to offer to them, the outlines of which he implored them in the mean time to receive, as an antidote to the unlimited and unpunished poison in circulation against him? This is, without color or exaggeration, the true question you are to decide. Because I assert, without the hazard of contradiction, that if Mr. Hastings himself could have stood justified or excused in your eyes for publishing this volume in his own defence, the author, if he wrote it bona fide to defend him, must stand equally excused and justified; and if the author be justified, the publisher cannot be criminal, unless you had evidence that it was published by him with a different spirit and intention from those in which it was written. The question, therefore, is correctly what I just now stated it to be-Could Mr. Hastings have been condemned to infamy for writing this book ?
Gentlemen, I tremble with indignation to be driven to put such a question in England. Shall it be endured, that a subject of this country may be impeached by the Commons for the transactions of twenty years—that the accusation shall spread as wide as the region of letters—that the accused shall stand, day after day and year after year, as a spectacle before the public, which shall be kept in a perpetual state of inflammation against him; yet that he shall not, without the severest penalties, be permitted to submit anything to the judgment of mankind in his defence ? If this be law (which it is for you to-day to decide), such a man has no trial. That great hall, built by our fathers for English justice, is no longer a court, but an altar; and an Englishman, instead of being judged in it by God and his country, is a victim and a sacrifice.
One word more, gentlemen, and I have done. Every human tribunal ought to take care to administer justice, as we look hereafter to have justice administered 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 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