I may mention one or two of the quips of Horne Tooke, CHAP. which Erskine applauded.

CLXXX.

John

Tooke, du

ring his

trial for

high trea

son.

Passages being read from pamphlets published by the A.D. 1794. Societies, abusing the King and the Lords, he offered to Facetie of prove that much abuse of himself had been printed on Horne earthenware vessels. - A witness having said that a treasonable song had been sung at a public meeting, he proposed that it should be sung in court, so that the jury might ascertain whether there was any thing treasonable, resembling Ca ira or the Marseillois Hymn, in the tune. He not unfrequently succeeded in arguing questions of evidence, and if found out to be clearly wrong, he took a pinch of snuff, and quietly apologised, by saying, that "he was only a student of forty years' standing."- On one occasion, when he objected to the admissibility of evidence of a particular fact, on the ground that he was not connected with it, Eyre reminded him, that if there were two or three links to make a chain, they must go to one first, and then to another, and see whether the chain was made. Horne Tooke. "I beg your pardon, my Lord, but is not a chain composed of links? and may I not disjoin each link? and do I not thereby destroy the chain ?" – Eyre, C.J. “I rather think not till the links are put together, and form the chain." - Horne Tooke. "Nay, my Lord, with great submission to your Lordship, I rather think that I may, because it is my business to prevent the forming of that chain."-To prove him to be a republican, evidence was given that a society, of which he was a member, had approved of certain proceedings in the National Assembly. Egad," said he, "it is lucky we did not say there were some good things in the Koran, or we should have been charged to be Mahometans."— Having put questions to show that at public meetings they had often disapproved of his sentiments and his conduct, he gave a knowing nod to the jury, and said, "My object, gentlemen, was to show that after I had deposed our Lord the King, I was likely to have very troublesome subjects, for I was constantly received with hisses."-By putting the following question, he excited a roar of laughter against the solemn and empty Beaufoy, who pre

66

CHAP. tended hardly to know him, and denied all recollection of a CLXXX. date to which he was interrogated: "Now, witness, upon A.D. 1794. your oath, was it not the very day that you complained so

Erskine's

address to

the jury in his behalf.

bitterly to me you could not sleep because, notwithstanding all your services to Mr. Pitt, and all the money you had spent in his cause, he had refused to return your bow?" Few were aware at the time that this was pure invention, to expose a tuft-hunter. The Attorney General, in repelling some insinuations thrown out against him for the manner in which he had instituted these prosecutions, said, "he could endure any thing but an attack on his good name; it was the little patrimony he had to leave to his children, and, with God's help, he would leave it unimpaired." He then burst into tears, which, from his lachrymose habit, surprised no one; but, to the wonder of all, the Solicitor General, not known to be of the melting mood, became equally affected, and sobbed in concert with his friend. Tooke, afraid that the sympathy might extend to the jury, exclaimed, in a stage whisper, "Do you know what Sir John Mitford is crying about? He is thinking of the destitute condition of Sir John Scott's children, and the little patrimony they are likely to divide among them."

When the time arrived for the prisoner's counsel addressing the jury, Erskine was again the observed of all observers, and almost surpassed his performance in defending Hardy. On that occasion, notwithstanding his assumed boldness, he evidently entertained great apprehensions as to the result. He could now even venture to be jocular. In commenting upon the authorities cited by the Attorney General, he said, "To give the case of Lord Lovat any bearing upon the present, you must first prove that our design was to arm, and I shall then admit the argument and the conclusion. But has such proof been given on the present trial? It has not been attempted; the abortive evidence of arms has been abandoned. Even the solitary pike that formerly glared rebellion from the corner of the court no longer makes its appearance, and the knives have returned to their ancient office of carving. Happy was it indeed for me that they

CLXXX.

A.D. 1794.

were ever produced; for so perfectly common were they CHAP. throughout all England, and so notoriously in use for the most ordinary purposes, that public justice and benevolence, shocked at the perversion of truth in the evidence concerning them, kept pouring them in upon me from all quarters. The box before me is half full of them; and if all other trades fail me, I might now set up a cutler's shop."

Thus he pointed out the improbability of the charge against the aged philologist: "Yet this gentleman, greatly advanced in years and broken in health, who was shut up then and long before within the compass of his house and garden at Wimbledon, where he used to wish an act of parliament might confine him for life, who was painfully devoting the greatest portion of his time to the advancement of learning, who was absorbed in researches which will hereafter astound the world who was at that very moment engaged in a work such as the labour of man hardly ever undertook, nor perhaps his ingenuity ever accomplished - who never saw the Constitutional Society but in the courtesy of a few short moments after dining with some of the most respectable members, and who positively objected to the very measure which is the whole foundation of this prosecution is yet gravely considered to be the master-spirit which was continually directing all the movements of a conspiracy as extensive as the island—the planner of a revolution in the government, and the active head of an armed rebellion. Gentlemen, is this a proposition to be submitted to the judgment of honest and enlightened men upon a trial of life and death! Why there is nothing in the Arabian Nights or in the Tales of the Fairies which is not dull matter of fact compared with it..... Filled with indignation that an innocent man should be consigned to a prison for treading in the very steps which had conducted the premier to his present situation, Mr. Horne Tooke did write that if ever that man should be brought to trial for his desertion of the cause of parliamentary reform, he hoped the country would not consent to send him to Botany Bay;' but whatever you

CHAP. CLXXX.

A.D. 1794.

may think of this sentiment, Mr. Tooke is not indicted for compassing and imagining the death of William Pitt."

In combating the unfair course of inferring that every opinion in a book is adopted by him who praises the author, he pointed out that a work of Mr. Burke contained a dangerous principle destructive of British liberty, and thus proceeded: "What then? Ought I to seek its suppression? Ought I to pronounce him to be a criminal who promotes its circulation? On the contrary, I shall take care to put it into the hands of those whose principles are left to my formation. I shall take care that they have the advantage of doing, in the regular progression of youthful study, what I have done even in the short intervals of laborious life; that they shall transcribe with their own hands, from all the works of this most extraordinary person, the soundest truths of religion the justest principles of morals, inculcated and rendered delightful by the most sublime eloquence — the highest reach of philosophy brought down to the level of common minds the most enlightened observations on history, and the most copious collection of useful maxims from the experience of life. All this they shall do, and separate for themselves the good from the evil-taking the one as far more than a counterpoise for the other."*

The case against Horne Tooke rested chiefly upon the following letter found in his possession addressed to him by Joyce, one of the alleged conspirators: "Dear Citizen, This morning at six o'clock Citizen Hardy was taken away by order from the Secretary of State's office: they seized every thing they could lay hands on. Query. Is it possible to get ready by Thursday?" The conclusive proof of rebellion was thus disposed of by Erskine: "This letter, being intercepted, was packed into the green box, and reserved to establish the plot. It is another lesson of caution against vague suspicions. Mr. Tooke having undertaken to collect from the Court Calendar a list of the titles, offices, and

*The Right Hon. T. Erskine, in reference to this passage, writes to me,"This resolution he put in practice by giving us, as boys, passages from Burke's works to transcribe and learn by heart.'

CLXXX.

pensions bestowed by Mr. Pitt on his relations, friends, and CHAP. dependents, and being too correct to come out with a work of that magnitude and extent upon a short notice, had fixed A.D. 1794. no time for it which induced Mr. Joyce, who was anxious

for its publication, to ask if he could be ready with it by

Thursday- using the French designation of 'citizen' for the purpose of turning it into ridicule !"

So confident had he become, that he even ventured to treat with some severity a juryman who appeared to disapprove of his argument: "To expose further the extreme absurdity of this accusation, if it be possible further to expose it, let me imagine that we are again at peace with France, while the other nations who are now our allies should continue to prosecute the war, —would it then be criminal to congratulate France upon her successes against them? When that time arrives, might I not honestly wish the triumph of the French armies? And might I not lawfully express that wish? I know certainly that I might and I know also that I would! I observe that this sentiment seems a bold one; but who is prepared to tell me that I shall not? I WILL assert the freedom of an Englishman; I WILL maintain the dignity of man. I WILL vindicate and glory in the principles which raised this country to her pre-eminence among the nations of the earth; and as she shone the bright star of the morning to shed the light of liberty upon nations which now enjoy it, so may she continue in her radiant sphere to revive the ancient privileges of the world, which have been lost, and still to bring them forward to tongues and people who have never yet known them, in the mysterious progression of things."

Instead of an impassioned peroration, he now merely said, as if he considered the battle won, "I cannot conclude without observing that the conduct of this abused and unfortunate gentleman throughout the whole of this trial has certainly entitled him to admiration and respect. I had undoubtedly prepared myself to conduct his cause in a manner totally different from that which I have pursued. It was my purpose to have selected those parts of the evidence only by