Treason Trials of 1794--Societies for Reform--Constructive
Treason--Horne Tooke--Mr. Erskine.
The first conflict between Englishmen and their rulers, to which I will
now more particularly refer, is the sedition and treason trials, near
the close of the last century; more especially alluding to the trials of
JOHN HORNE TOOKE, HARDY, THELWALL, and their associates, in 1794, for
high treason. The victories then achieved heralded those subsequent
reforms in Church and State which have so blessed the common people of
England. It was the crisis of British freedom. Though failure then would
not have uprooted the goodly tree, it would have blasted much of its
sweet fruit, and retarded its luxuriant growth. Maj. Cartwright, ("that
old heart of sedition," as Canning called him,) one of England's early
reformers, in a letter written at the time, said: "Had these trials
ended otherwise than they have, the system of proscription and terror,
which has for some time been growing in this country, would have been
completed and written in blood." The verdicts of "not guilty" not only
pronounced the acquittal of the prisoners, but proclaimed the right of
individuals and associations to examine and reprobate the acts of their
King and Parliament; to discuss the foundations of government, and
declare the rights of man and the wrongs of princes; and to arouse
public opinion to demand such changes in the laws as would secure the
liberties of the people. The crime charged against Tooke and his
associates was, endeavoring to excite a rebellion, overthrow the
monarchy, wage war on the king, and compass his death. Their real
offense was, belonging to "the London Corresponding Society" and "the
Society for Constitutional Information," better known as societies for
Parliamentary reform, in which they canvassed the nature of government,
the rights of the people, and the acts of their rulers, and specially
advocated a reform in the Parliamentary representation and the electoral
suffrage.
This was no new movement. Similar associations had existed for twenty
years. The Society of "the Friends of the People" numbered among its
members the imposing names of the Duke of Richmond, Pitt, Sheridan,
Whitbread, Grey, and other men of rank. They had held meetings,
published pamphlets, and petitioned Parliament. Discussions had taken
place in both Houses. In 1770, the great Chatham advocated a moderate
reform in the representation in the lower House. In 1776, Wilkes, the
favorite of the London populace, made an able speech on moving for leave
to bring in a radical bill to the same end. In 1783, Pitt, yielding to
the generous impulses of his youth, moved for a committee to inquire
into the same subject, and supported his motion in two eloquent
speeches. In 1790, Flood, the celebrated Irishman, spoke with fervor on
moving for a more equal representation in the Commons, and was replied
to by Wyndham and Pitt, (who had become frightened by the French
revolution,) and powerfully supported by Fox, then in the zenith of his
fame, and by Grey, just giving earnest of those talents which, forty
years after, carried the reform bill through the Lords. The discussion
of kindred topics in Parliament during the same periods stimulated the
popular party. The expulsion of Wilkes, the idol of the London mob, from
the Commons; the seizure of his papers and the imprisonment of his
person in the Tower for a seditious libel against the Tory Government;
his repeated reelection by his Middlesex constituency, and the votes of
the House declaring his seat still vacant; the consequent debates in
both Houses during the years 1768-'70 excited the populace to the verge
of rebellion, and challenged inquiry into the relative rights of the
people and their Parliament. The debates on the stamp act, the taxation
of the colonies, and the American war, covering fifteen years, enlisted
the best powers of Chatham, Burke, Fox, and Barre, and elicited from
those high sources radical declarations of the rights of man. The
denunciations of the test acts and of the Catholic penal code by Fox and
his followers, from 1786 to 1790, as subversive of the rights of
conscience, added fuel to the popular flame. All these agitations within
the walls of Parliament were but the remoter pulsations of the great
heart beating without--the faint shadows of that genius of reform,
which, till recently, has numbered its representatives by units and its
constituency by hundreds of thousands.
The political sea, ruffled by these winds, was soon to be tossed by
violent storms. The French revolution produced a profound sensation in
all classes of Englishmen. The fulminations of its _third estate_
against monarchy, and the democratic doctrines of Paine's Rights of Man,
(republished in England from the Parisian edition, and scattered far and
wide,) found a response in thousands of British hearts. The people felt
their grievances to be more intolerable than ever, and the example of
France emboldened them to demand redress in firmer tones. The London
Society for Constitutional Information, which had grown languid,
suddenly felt a revival of more than its original spirit, and kindred
associations sprang into existence all over the kingdom. Their orators
declaimed upon the rights of man, painted his wrongs, extolled the
merits of the people, and denounced the vices of bishops and nobles. The
oppressions of the middle and lower classes, (of both which the
societies were mainly composed,) by the privileged orders, afforded
ample materials for these appeals to the best and worst passions of
human nature.
The Government was alarmed. The events of France in 1792 had determined
the English Ministry to crush in the bud the revolution they pretended
they saw springing up at home. Their real object was to prostrate the
reformatory associations. Louis was deposed, and the Republic had
decreed fraternity and aid to the people of all nations in recovering
their liberties. Riots occurred in a few English manufacturing towns.
The King suddenly convened Parliament, and declared in his speech, that
conspiracies existed for overthrowing the Government, and that the
kingdom was on the eve of a revolution. In the debate on the King's
speech, the Minister said that seditious societies had been instituted,
under the plausible pretext of discussing constitutional questions, but
really to promote an insurrection of the people. Mr. Fox met the
assertions of King and Minister with a denial, whose language borders on
temerity. He declared, "there was not one fact stated in His Majesty's
speech which was not false--not one assertion or insinuation which was
not unfounded. The prominent feature in it was, that it was an
intolerable calumny on the people of Great Britain; an insinuation of so
gross and black a nature that it demanded the most rigorous inquiry and
the most severe punishment!" Bold words, these; not unlike those of
Cromwell, who declared "he would as soon put his sword through the heart
of the King as that of any other man."
But the Government was not to be arrested in its course by the bold
words of the Opposition leader. It continued to prosecute printers and
lecturers for seditious libels and speeches, fining, imprisoning,
cropping, branding, and transporting, at will. The progress of events in
France was precipitating the crisis. In 1793, Louis and his Queen were
guillotined, and the next year saw the Princess Elizabeth's head fall,
while the bloody star of Robespierre loomed in the ascendant. At these
scenes, the cheek of monarchical Europe turned pale. Pitt was alarmed.
Prosecutions for sedition did not reach the seat of the disease. Royal
proclamations did not silence the reformers. The constitutional
societies still met and debated. Early in the session of 1794, he
brought in bills to clothe the Government with extraordinary powers to
detect suspicious persons, (_i. e._ reformers,) and to suspend the
_habeas corpus_ act. After a furious contest, in which Fox, Grey, and
Sheridan, stood by the popular cause, the bills passed. The _habeas
corpus_ was suspended in May, 1794. The safeguard of English liberty
being prostrated, a fell blow was aimed at the societies, through the
persons of some of their leading members. Informations for high treason
were filed in May by the Attorney General (Sir John Scott--Lord Eldon)
against Tooke, Hardy, Thelwall, and nine others, and they were sent to
the Tower to await their trials. Both parties now prepared for a
death-struggle. The Ministers trusted for success to the power of the
Crown, the subserviency of the judges, and the wide-spread panic among
the higher classes. The common people, though alarmed at the strength of
this combination, relied upon the innocence of the accused persons; but,
at all events, (though the more timid erased their names from the roll
of the societies,) the mass resolved to make a stand for the freedom of
speech and the press, and the right of associating for a redress of
grievances, worthy of the exigency. From the papers of the London
Society, which had been seized, it appeared that the members
contemplated holding a National Convention to promote Parliamentary
reform; and this was regarded as a conspiracy to subvert the monarchy
and establish a republic!
I have stated the crime with which these men were charged. Indicted for
conspiring to subvert the monarchy, depose the King, and compass his
death, it was only pretended that they had uttered and published
seditious words with the intent to alter his Government; when, in fact,
they had only advocated radical reforms in the two Houses of Parliament.
The _existence_ of the constitutional societies and their _doings_ were
clearly legal. No doubt, many unguarded and some unwarranted expressions
about the King and Parliament had been used. But nothing had been said
or done which, on a fair construction, exposed the parties to a just
conviction of any crime. Most assuredly they were not guilty of high
treason; and as surely their words and deeds were tame and puerile,
compared with what the English press and people have since said and done
in the ear of Ministers and under the eye of Majesty. In short, they
were to be immolated on the judicial guillotine of "CONSTRUCTIVE
TREASON."
The character and station of the prisoners excited the interest of
different ranks of society. They had been shut up in the Tower six
months, closely confined, and all access to them by their friends
denied. Hardy was a shoemaker, and, with two or three others, was from
the upper strata of the lower orders. Kyd was a barrister; Holcroft, a
dramatic writer; Joyce, a minister; and Thelwall, a political lecturer.
These belonged to the middle class. JOHN HORNE TOOKE, the most
considerable person among them, held a debatable position in the higher
circles. He was a gentleman of limited aristocratic connections, and a
scholar of rare and varied learning. He had taken holy orders in his
youth, but had long ago left the altars of the church for the closet of
the student and the forum of the politician. He was the author of the
profound philosophical treatise on the English language, called "_The
Diversions of Purley_." Many then supposed him to be the author of
Junius. He had had a violent newspaper controversy, feigned or real,
with that writer, and had worsted him. He was the ablest pamphleteer and
debater among the ultra-liberals, and was ever ready, with his keen pen
and bold tongue, to contend with the scribes of the Government through
the press, or its orators on the rostrum, and he never gave cause to
either to congratulate themselves on the results of the encounter.
Nearly twenty years ago he had stood before the same tribunal, and
defended himself with consummate skill, and a courage bordering on
audacity, against a prosecution for publishing a defense of "the
American rebels" at the battle of Lexington. He and his associates were
now to make a stand for their lives.
The trials took place at the Old Bailey, in October and November, 1794,
and extended through several weeks. The prisoners were defended by
Erskine, whose name was a tower of strength, and Gibbs, the very
embodiment of legal knowledge, (Tooke aiding in his own case,) whilst
Scott, long-headed, learned, and unscrupulous, assisted by the Solicitor
General, prosecuted for the Crown. The hall and the passages leading to
it were densely thronged with persons of all ranks and conditions, eager
spectators of or participants in, the most memorable struggle which the
courts of the common law have witnessed. No overt _acts_ of any moment
could be proved against either of the accused, and the prosecution had
to rely mainly on ambiguous words and writings of doubtful import. The
whole power of the Court of the King, and the Judges of the King's
Court, was brought to bear upon the doomed prisoners, aided by the
multifarious lore and subtle reasoning of the Attorney General. Every
doubtful word was distorted, every ambiguous look transformed into
lurking treason. The rules of evidence were put to the rack, to admit
bits of letters and conversations, written and uttered by others than
the accused, and to hold them responsible for all that had been said and
done by every man who, at any time and anywhere, had belonged to the
societies, or taken part in their discussions. The friends of the
prisoners spoke with bated breath, as the trials proceeded; for they
knew, if the prosecution succeeded, a reign of terror had begun, in
which the King was to enact the Robespierre, and they were to be his
victims. But neither the ravings of the Court at Windsor, nor the
partialities of the Court at London, could suffice against the learning,
the logic, the skill, the vigilance, the eloquence, the courage, the
soul, which Erskine threw into his cause. He battled as if his own life
had been at hazard. He knew that twelve "good and true men" stood
between the lion and his prey. The Court ruled that if the jury
believed the discussions and writings of the prisoners, or of the
societies to which they belonged, tended to subvert the monarchy and
depose the King, or change the Constitution, they must find them guilty.
But Erskine maintained, with a power of argument which, for the moment,
shook the faith of the Court, that _for British subjects to utter their
sentiments, in_ ANY FORM, _concerning the Government of their country,
was not_ TREASON. So thought the jurors, (though the Court leaned
heavily to the side of the Crown,) and one after another these hunted
plebeians passed the terrible ordeal. The King lost; the People won.
They shouted their triumph so loud, that he heard it within his palace,
and the crowned lion growled, gnashed his royal teeth, and beat the bars
of his constitutional cage, till his anointed head throbbed with
anguish.
Hardy, whose case was extremely perilous, was first set to the bar. His
trial lasted nine days. Tooke's came next, and Thelwall's next; when the
prosecutors, frantic with rage and mortification at their signal
overthrow, abandoned the contest. When Tooke was acquitted, the joy of
the people knew no bounds. He was an old reformer, had ever been the
steady advocate of popular rights, and was the idol of the Radicals. He
had suffered much before in the common cause. His library had been
repeatedly ransacked for treasonable papers, his family insulted, and
his person again and again thrust into prison. And now they had seen him
stand for six days, battling with the Court which lowered upon him, and
bearing unruffled the taunts with which the Government witnesses had
poorly withstood his searching cross-examination, contending for a life
whose every pulsation had been given to the service of the people. When
the foreman pronounced the words, "Not Guilty," the arches of Old Bailey
rang with plaudits. After addressing a few words to the Court, he turned
to Scott, and said: "I hope, Mr. Attorney General, that this verdict
will be a warning to you not to attempt again to shed men's blood on
lame suspicions and doubtful inferences." He then thanked the jury with
much emotion for the life they had spared to him. The entire panel shed
tears--the very men who had been so obviously packed to convict him,
that at the opening of the trial Erskine said, "Mr. Tooke, they are
murdering you!" The populace bore the old patriot through the passages
to the street, where they sent up shout upon shout. It was a great day
for Reformers, and its anniversary is still celebrated by the Radicals
of England.
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 the 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. But more than all; he exploded the
doctrines of constructive treason, and established the law on the true
foundation, that there must be some overt _act_ to constitute guilt; and
he reinscribed upon the Constitution of England the obliterated
principle, that Englishmen may freely speak and publish their opinions
concerning the Government of their country without being guilty of
treason--a principle, under whose protecting shield they now utter their
complaints, their denunciations even, in the very ear of Majesty
itself.[1]
[1] The text states only a _legal_ truth. Practically there yet remain
great obstacles in the way of the free utterance of opinions hostile to
the Government--as witness the recent prosecutions of O'Connell, Jones,
&c.