Page images
PDF
EPUB

CHAP.

CLXXVIII.

Scene on the delivery of

the verdict,

when Bul

ler threat

ened to commit Erskine, and Ers

kine defied him.

[ocr errors]

Juror.

The jury withdrew, and in about half an hour returned into Court. When their names had been called over, the folA.D. 1784. lowing scene was enacted. Clerk. "Gentlemen of the jury, do you find the defendant guilty or not guilty?"— Foreman. "Guilty of publishing only."— Erskine. "You find him guilty of publishing only?"—A Juror. "Guilty only of publishing."- Buller, J. "I believe that is a verdict not quite correct. You must explain that one way or the other. The indictment has stated that G. means Gentleman,' F. 'Farmer,' the King the King of Great Britain,' and the Parliament the Parliament of Great Britain."" 6 "We have no doubt about that."- Buller, J. "If you find him guilty of publishing, you must not say the word 'only.'" Erskine. 66 By that they mean to find there was no sedition."- Juror. "We only find him guilty of publishing. We do not find any thing else.”—Erskine. "I beg your Lordship's pardon; with great submission, I am sure I mean nothing that is irregular. I understand they say 'We only find him guilty of publishing.""-Juror. "Certainly, that is all we do find.”— Buller, J. "If you only attend to what is said, there is no question or doubt."- Erskine. "Gentlemen, I desire to know whether you mean the word 'only' to stand in your verdict."-Jurymen. "Certainly.”— Buller, J. "Gentlemen, if you add the word 'only' it will be negativing the innuendoes."- Erskine. "I desire your Lordship sitting here as Judge to record the verdict as given by the Jury."— Buller, J. "You say he is guilty of publishing the pamphlet, and that the meaning of the innuendoes is as stated in the indictment."-Juror. "Certainly."-Erskine. "Is the word 'only' to stand part of the verdict?"— Juror. Certainly."- Erskine. "Then, I insist it shall be recorded."- Buller, J. "Then the verdict must be misunderstood; let me understand the Jury."-Erskine. "The Jury do understand their verdict.”—Buller, J. "Sir, I will not be interrupted."— Erskine. “I stand here as an advocate for a brother citizen, and I desire that the word only may be recorded."- Buller, J. "SIT DOWN, SIR; REMEMBER YOUR DUTY, OR I SHALL BE OBLIGED TO PROCEED IN ANOTHER

[ocr errors]

MANNER." - Erskine.

[ocr errors]

"YOUR LORDSHIP MAY PROCEED IN WHAT MANNER YOU THINK FIT; I KNOW MY DUTY AS WELL AS YOUR LORDSHIP KNOWS YOURS.

ALTER MY CONDUCT."

CHAP. CLXXVIII.

I SHALL NOT A. D. 1784.

The learned Judge took no notice of this reply, and, quailing under the rebuke of his pupil, did not repeat the menace of commitment. This noble stand for the independence of the bar would of itself have entitled Erskine to the statue which the profession affectionately erected to his memory in Lincoln's Inn Hall. We are to admire the decency and propriety of his demeanour during the struggle, no less than its spirit and the felicitous precision with which he meted out the requisite and justifiable portion of defiance. The example has had a salutary effect in illustrating and establishing the relative duties of Judge and Advocate in England.

The jury, confounded by the altercation, expressed a wish to withdraw, and the verdict was finally entered, “ Guilty of publishing, but whether a libel or not we do not find."

In the ensuing Michaelmas Term a rule was obtained to show cause why the verdict should not be set aside, and a new trial granted, on the ground of misdirection by the Judge.* Erskine's addresses to the Court in moving, and afterwards in supporting his rule, display beyond all com parison the most perfect union of argument and eloquence ever exhibited in Westminster Hall. He laid down five propositions most logically framed and connected — which, if true, completely established his case and he supported

[ocr errors]

In a copy of the trial, which had formerly belonged to Lord Erskine himself, I find in his own handwriting, after the verdict at Shrewsbury, the following memorandum : In Michaelmas T., which immediately followed, I moved the Court of King's Bench for a new trial, for a misdirection of the Judge, and misconduct after the verdict was returned into Court. I made the motion from no hope of success, but from a fixed resolution to expose to public contempt the doctrines fastened on the public as law by Lord Chief Justice Mansfield, and to excite, if possible, the attention of Parliament to so great an object of national freedom." There then follows an observation which I do not understand. "The latter object miscarried from a circumstance which will hereafter be a curious piece of history, and show upon what small and strange pivots the greatest national events turn and depend." I presume that this had been written before Mr. Fox introduced his Libel Bill, which was not till 1791; and that a reference is made to some unknown circumstance which had delayed, and was thought to have defeated, that measure.

[blocks in formation]

Erskine's

speech in the Court

of King's

Bench, moving for a

new trial.

СНАР.

CLXXVIII.

them with a depth of learning which would have done honour to Selden or Hale, while he was animated by an enthusiasm A. D. 1784. which was peculiarly his own. Though appealing to Judges who heard him with aversion or indifference, he was as spirited as if the decision had depended on a favourable jury, whose feelings were entirely under his control. So thoroughly had he mastered the subject, and so clear did he make it, that he captivated alike old black-letter lawyers and statesmen of taste and refinement. Charles Fox was not present in Court, and could not have been carried away by the exciting manner of the advocate; yet having read the second speech delivered in moving to make the rule absolute, he often declared it to be the finest piece of reasoning in the English language. But it made no impression on the Judges. Erskine himself, in his defence of Paine some years afterwards, gives rather a striking description of the manner in which they received it: "I ventured to maintain this very right of a jury over the question of libel under the same ancient constitution, before a noble and reverend magistrate of the most exalted understanding, and of the most uncorrupted integrity. He treated me, not with contempt indeed, for of that his nature was incapable

but he put me aside with indulgence, as you do a child when it is lisping its prattle out of season." Of the closely-knit arguments and beautiful illustrations which constituted this speech, it would be impossible by extracts to convey an idea.

Lord Mansfield, in giving judgment, relied upon the practice that had long prevailed, and mainly upon the words of a ballad made on the acquittal of the "CRAFTSMAN" prosecuted by Sir Philip Yorke - which he misquotedsaying:

"Sir Philip well knows

That his innuendoes
Will serve him no longer

In verse or in prose;

For twelve honest men have decided the cause,
Who are judges of fact, though not judges of laws."

Whereas the true rendering of the last line is

"Who are judges alike of the facts and the laws."

CHAP. CLXXVIII.

Arrest of judgment.

Erskine then moved in arrest of judgment, saying, that "all who knew him, in and out of the profession, could witness for him, that he had ever treated the idea of ultimately pre- .D. 1784. vailing against the defendant upon such an indictment to be perfectly ridiculous, and that his only object, in all the trouble he had given to their Lordships and to himself, in discussing the right to a new trial, was to resist a precedent which he originally thought, and still continued to think, was illegal and unjustifiable: the warfare was safe for his client, because he knew he could put an end to the prosecution any hour he pleased, by the objection he would now, at last, submit to the Court." He was contending that the "Dialogue" was an entirely innocent production, when the counsel for the prosecution were required to point out any part of it, as charged in the indictment, which could be considered criminal, and they being unable to do so, JUDGMENT WAS

ARRESTED.

Erskine's noble con

quences of

duct.

So ended this famous prosecution. It seemed to establish Consefor ever the fatal doctrine, that libel or no libel was a pure question of law, for the exclusive determination of Judges appointed by the Crown. But it led to the subversion of that doctrine, and the establishment of the liberty of the press, under the guardianship of English juries. The public mind was so alarmed by the consequences of this decision, that Mr. Fox's libel bill was called for, which declared the rights of jurors in cases of libel; and I rejoice always to think that it passed as a declaratory act, although all the Judges unanimously gave an opinion, in the House of Lords, that it was inconsistent with the common law. I have said, and I still think, that this great constitutional triumph is mainly to be ascribed to Lord Camden, who had been fighting in the cause for half a century, and uttered his last words in the House of Lords in its support: but without the invaluable assistance of Erskine, as counsel for the Dean of St. Asaph, the Star Chamber might have been re-established in this country.*

21 St. Tr. 847-1045.

Erskine's Speeches, vol. i. 137-393.

CHAP. CLXXIX.

Erskine counsel at

the bar of the House

of Commons in the West

minster scrutiny.

CHAPTER CLXXIX.

CONTINUATION OF THE LIFE OF LORD ERSKINE TILL THE COM-
MENCEMENT OF THE STATE TRIALS, IN 1794.

WHILE Out of Parliament, Erskine several times appeared as counsel at the bar of the House of Commons, using very May, 1784. considerable freedoms with this august assembly. Being retained upon the petition respecting the "Westminster Scrutiny," in cross-examining a witness who had imputed misconduct to Mr. Fox's agents, he put the question, "Why do you infer that they were Mr. Fox's agents?" and the witness replying, "Because they appeared to be his friends,” he exclaimed, "If all Mr. Fox's friends are to be taken to be his agents, every honest man may be so esteemed who is not a member of this house." The counsel was ordered to withdraw, and the Speaker was severely blamed for allowing such language to pass unnoticed. Cornwall apologisedadmitting what had been said at the bar to be highly irregular, and a vote of censure on the counsel was then moved.. July, 1784. Erskine, who was within hearing, was turning in his mind the spirited speech he should make in answer, when he was deeply mortified by hearing Pitt say, in a most supercilious tone, "I rather think, Sir, it is not worth our while to take any further notice of the language of the learned gentleman, as it probably formed part of his instructions"!!!

His dis

respectful language to

the House

of Com

mons,

and Pitt's contemptuous treatment of

him.

Appearing to support a petition against certain clauses of the new bill for regulating the affairs of the East India Company, he denounced the whole measure as a vile imposture practised on a credulous nation, eulogising in the warmest terms the rejected bill of his right honourable friend. An admonition to regularity, at last coming from the chair, he said, "If, Mr. Speaker, I have been guilty of any irregularity, it arises solely from a diminution of that respect which I was accustomed to feel for this assembly before it was shorn

« PreviousContinue »