Constructive Treason--The Law of Libel and Sedition--The Dean of
St. Asaph--The Rights of Juries--Erskine--Fox--Pitt.
I took occasion in the last chapter to speak at some length of the
trials of Tooke, Hardy, and others, for high treason, in 1794, and of
the successful attack then made by Mr. ERSKINE on the doctrine of
constructive treason. Down to the period of these trials, the English
law of treason was infamous. Among other things, treason was defined to
be waging war against the King, or compassing and imagining his death,
or the overthrow of his Government. The law evidently contemplated the
doing of some _act_, designed and adapted to accomplish these ends. But
the construction of the courts had subverted this principle, and
declared the mere utterance of _words_ high treason. In the reign of
Edward IV, a citizen was executed for saying "he would make his son heir
of _the crown_;" meaning, as was supposed, that he would make him the
heir of his _inn_, called "the Crown." Another, whose favorite buck the
King had wantonly killed, was executed for saying, "he wished the buck,
horns and all, in the bowels of the man who counseled the King to kill
it." The court gravely held, that as the King had killed it of his own
accord, and so was his own counselor, this declaration was imagining the
King's death, and therefore treason! So it had been held, that using
words tending to overawe Parliament, and procure the repeal of a law,
was levying war on the King, and therefore treasonable. At length the
courts yielded to the doctrine that there must be some overt act to
constitute the crime. But they also held that, reducing words to
_writing_ was an overt act, even though they were never read or printed!
Peachum, a clergyman, was convicted of high treason for passages found
in a sermon which had never been preached. The immortal Algernon Sidney
was executed, and his blood attainted, for some unpublished papers found
in his closet, containing merely speculative opinions in favor of a
republican form of government. It was in allusion to this judicial
murder by the infamous Jeffries, and to the fact that the record of the
conviction had been destroyed, that Erskine, on the trial of Hardy,
uttered the splendid anathema against "those who took from the files the
sentence against Sidney, which should have been left on record to all
ages, that it might arise and blacken in the sight, like the handwriting
on the wall before the Eastern tyrant, to deter from outrages upon
justice." It has already been said that this peerless lawyer exploded
these dangerous doctrines, and made it safe for Englishmen to speak and
write freely against the King and Government, without exposure to a
conviction for treason.
But this is not the only salutary legal reform for which England is
indebted to his exertions. Pernicious as is the existing law of CRIMINAL
PROSECUTIONS FOR LIBELS AND SEDITIOUS WRITINGS in that country, it was
vastly worse till his strong arguments and scathing appeals had shaken
it to its foundations. A glance at the law. Any publication imputing bad
motives to King or Minister; or charging any branch of Government with
corruption, or a wish to infringe the liberties of the People; or which
cast ridicule upon the Established Church; and any writing, printing, or
speaking, which tended to excite the People to hatred or contempt of the
Government, or to change the laws in an improper manner, &c., were
seditious libels, for which fine, imprisonment, the pillory, &c., might
be imposed. Nor was the truth of the libel any defense. Admirable
snares, these, to entangle unwary reformers, and catch game for the
royal household! And these bad laws were worse administered. _The
juries had no power in their administration_--the only check in the
hands of the People. The court withheld from the jury the question
whether a writing was libelous or seditious, and permitted them only to
decide whether the prisoner had published it. In a word, if the jury
found that he _published_, they must convict; and then the judge growled
out the sentence. These trials were ready weapons for State prosecution
in the hands of a tyrannical King and Ministry, with pliant judges at
their beck; and in the latter half of the last century they were used
without stint or mercy. They struck down Wilkes, Tooke, Woodfall, Muir,
Palmer, Holt, Cartwright, and other liberals, for publications and
speeches in vindication of the People, which, at this day, would be held
harmless even in England. Some were heavily fined, others imprisoned or
transported, others set on the pillory, or cropped and branded, their
houses broken open and searched, their wives and daughters insulted,
their private papers rifled, their printing presses seized, their goods
confiscated, their names cast out as evil, and they might regard their
lot as fortunate if their prospects for life were not utterly ruined.
The treatment of Muir and Palmer, in 1793, was barbarous. Muir was a
respectable barrister, and Palmer a clergyman of eminent literary
attainments. They had merely addressed meetings and associations for
Parliamentary reform in Glasgow and Edinburgh, and reports of one or two
of their speeches had been printed. Muir was sentenced to transportation
for fourteen years, and Palmer for seven. They were shipped off to
Botany Bay with a cargo of common felons! Several other persons, for
attending a Reform Convention in Edinburgh the same year, shared a like
fate. These are trials which sunshine politicians of the liberal school
never contemplate, except to draw from them materials for rounding off
fine periods about freedom and the rights of man. But they endear the
sufferers to the struggling masses of their own time; and, in after
years, when the sons of the persecutors garnish their tombs, those who
then endure like trials swear by their memories and conjure with their
names.
The times of which I write were prolific of these State prosecutions.
Mr. Erskine was the ready counsel of the proscribed reformers then, as
Mr. Brougham was at a later period. His great effort on these trials was
to convince the court that the juries had the right to decide upon the
character of the publication in making up their verdicts; or, in legal
phrase, that they were "judges both of law and fact." In this effort, he
had many a fierce conflict with the judges, when, with his usual
courage, he braved their rebukes and challenged the execution of their
hinted threats to commit him for contempt. He always argued this point
fully to the court, in the presence of the jury; and such was his
mastery over the reason and the feelings, that he sometimes prevented a
conviction when he could not obtain an acquittal. It was in an affair of
this sort that he had a quarrel with Mr. Justice Buller, a judge who
coupled double the imperiousness of Mansfield with half his talents, and
whose frown, glowering out from under his huge wig, has silenced many a
barrister of more than common nerve. The respectable DEAN OF ST. ASAPH,
who breathed the mountain air of Wales, published a clever political
tract, under the guise of a dialogue between King George and a farmer.
Erskine went down to defend him. Buller presided at the trial. Erskine
argued his favorite topic with more than his accustomed ability. The
jury listened with absorbing attention; the judge with impatient
interruptions. He charged furiously against the Dean, and told the jury,
if they believed he published the tract, they must render a general
verdict of guilty. The words of reason and power of the great barrister,
and his piercing eyes, which riveted everything within their gaze, went
with them to their room. They returned a verdict in these words: "Guilty
of publishing only." The astonished judge ordered them out again, with
directions to render a general verdict of guilty. Erskine interposed,
and insisted upon their right to render such a verdict as they had. The
judge replied tartly, and the jury retired. Again they came in with the
same verdict. The judge reprimanded them, while Erskine insisted that
their verdict should be recorded. Buller retorted, explained his law to
the refractory panel, and sent them out. The third time they appeared
with the same verdict. The judge grew furious, and said, unless they
rendered a general verdict, he should order the clerk to enter it
"guilty." Erskine protested in strong terms. Buller ordered him to sit
down. Erskine said he would not sit down, nor would he allow the court
to record a verdict of guilty against his client, when the jury had
rendered no such verdict. Buller hinted at commitment. Erskine defied
him. The jury were frightened, and, in their panic, assented to a
general verdict of guilty.[2] Erskine excepted, and carried the case to
the full bench. But the day of triumph was at hand. So clearly had he in
his great arguments exposed the iniquity of the rule, (if, indeed, it
was law at all,) and so pertinaciously had he contested it on the trial
of the Dean, that Parliament passed a declaratory act soon after, (thus
admitting that Erskine was right,) giving jurors, in these prosecutions,
the power to render a verdict upon the whole offense charged, _i. e._,
making them "judges of the law as well as the fact."[3] I need not say
that, after this, prosecutions for seditious libels became less potent
and frequent weapons in the hands of royal and ministerial persecutors,
and reformers breathed freer.
[2] This scene is given from memory--the report not being at hand.
[3] A like contest early arose in this country. Congress passed an act
similar to that of the English, in 1798. In the State of New York, the
case of _People vs. Croswell_, for a libel on Jefferson, attracted great
attention. It was tried in 1803. The judge charged the jury according to
the old English law, and the defendant was convicted. It was carried
before the full bench, and argued in 1804. The speech of Alexander
Hamilton, for the defendant, was one of the ablest ever delivered in
America. The court being equally divided in opinion, the Legislature,
the next year, passed a declaratory act, giving to juries the right to
determine the law and the fact. This is now the prevailing law of the
country. Croswell's case is reported in 3d Johnson's Cases.
It does the heart good to contemplate talents like Erskine's devoted to
such purposes. To see the foremost lawyer of his time, in the midst of
wide-spread aristocratic clamor, and despite the fulminations of kings
and ministers and judges, take the side of humble men, who are denounced
as incendiaries, agrarians, levelers, French Jacobins, traitors, and
infidels, plotting to murder their sovereign, upheave his throne, and
prostrate the altars of the church, (and these are but a tithe of the
catalogue,) and for years perform prodigies of labor for poor clients
and poorer pay, thus blocking up the avenues to preferment in his
cherished profession, and all for the love he bears the common cause!
Such a spectacle should go somewhat to blunt the edge of those taunts so
constantly aimed at a profession which he adored and adorned, and which,
in every struggle for human rights, has furnished leaders to the popular
party among the bravest of the brave. The law, like every other
profession, has its scum and its vermin, and yields its share of
dishonest men. But they are dishonest not because they are lawyers, but
because they are scoundrels, and would have been so had they chosen to
be merchants, physicians, or horse-jockies. When reproaching the whole
legal fraternity as a "pack of licensed swindlers," it might be well to
remember that the most conspicuous rebels and martyrs of English
freedom, in the olden times, were lawyers--that Erskine, Emmet, Romilly,
Mackintosh, O'Connell, and Brougham, of later and milder days, were
lawyers; and that Jefferson, Adams, Otis, Sherman, Henry, and Hamilton,
with many other bold spirits who thundered and lightened during the
storm of the American revolution, were lawyers.
But we must leave Mr. Erskine by saying, that he possessed ability and
learning to maintain the boldest positions; eloquence for the most
thrilling appeals; imagination to sustain the loftiest flights. He was
graceful in action, melodious in elocution, and had an eye of whose
fascinating power jurors were often heard to speak. He was a wit and a
logician--a lawyer and a reformer--a man, cast in the noblest mold of
his species.
Mr. Erskine was powerfully sustained in his efforts for law reform by
the great liberal leader in the House of Commons. CHARLES JAMES FOX
deserves a conspicuous place among the early Reformers of England.
Entering Parliament in 1768, when just turned twenty-one, he rallied
under the banner of Mr. Burke, then the chief debater on the Whig side,
whose lead he followed through the doubtful contest on American
questions; and when victory, and peace, and independence, crowned their
efforts, the chief resigned the standard of opposition to the hands of
his younger and more robust lieutenant. Fox is called "the disciple of
Burke," and, after their unnatural estrangement, he gratefully said, "I
have learnt more from Burke alone than from all other men and authors."
He remained in the Commons till his death, in 1806; and though hampered
by aristocratic connections and the leadership of his party, his
generous nature and warm heart, through nearly forty years of
Parliamentary life carried his great talents to the liberal side. He
headed the forlorn hope of English freedom during the panic immediately
following the French revolution, and in the darkest and stormiest nights
of that gloomy period, his voice sounded clear and firm above the
tempest, hurling defiance at his foes, and bidding the few friends of
man and constitutional liberty who stood around him to be of good cheer,
for the day of their redemption was drawing on. His speech against the
stamp act, the taxation of the colonies, the American war, the test act,
the suspension of the _habeas corpus_, the treason and sedition bills,
the slave trade; and in favor of Parliamentary reform, religious
toleration, Catholic emancipation, the rights of juries, and of peace,
contain volumes of liberal principles which endear his name to the
friends of humanity in both hemispheres. As Erskine was the first
advocate that ever stood at the English bar, so Fox was the first
debater that ever appeared in its Commons. Burke wrote of him, after
their separation: "I knew him when he was nineteen; since which, he has
risen to be the most brilliant and accomplished debater the world ever
saw." His argumentative powers were of the highest order, and his wit,
his invective, and his appeals to the judgment and feelings unrivaled.
In the partisan warfare of extemporaneous debate, he bore down on his
antagonists with an energy which, when fully roused, bordered on
ferocity. But it was the ferocity of impassioned logic and intense
reasoning. Not content with once going over the ground in controversy,
he traveled it again and again, unfolding new arguments and adding
additional facts, till his searching and vigorous eloquence had
discovered and demolished every objection that lay in his track. The
very embodiment of the reasoning element in man, he saw through his
subject with rapid glances, grappled sturdily with all its strong
points, despised mere ornaments, rejected all bewildering flights of the
imagination, and shunned excursions into collateral fields which skirted
his line of argument. In these latter respects he was totally unlike his
great master. As his reasoning powers were cast in the most colossal
mold, so his heart was of the finest and noblest quality. Mackintosh has
justly said, that "he united in a most remarkable degree the seemingly
repugnant characters of the mildest of men and the most vehement of
orators." His appeals to magnanimity, to generosity, to integrity, to
justice, to mercy, thrilled the soul of Freedom, while the tide of
consuming lava which he poured on hypocrisy, meanness, dissimulation,
cruelty, and oppression, made the grovelers at the footstool of power
hide with fear and shame. He was a statesman of the broadest and most
liberal views. His capacious mind was stored with political knowledge;
he had deeply studied the institutions of ancient and modern States; and
no man better understood the general and constitutional history of his
own country, nor the delicate machinery which regulated its complicated
foreign and domestic affairs. As bold as a lion, he never cowered before
the King, his ministers, or his minions; but gloried in being the
mouthpiece of out-door Reformers, whose radical principles and humble
connections prevented their admission within the Parliamentary walls. He
repeated the coarse opinions of Cartwright and his companions, in a
place whose doors they were forbidden to darken, but in language worthy
of the classic scion of Holland House. He was of invaluable service to
the radical party, in gaining them favor with the aristocratic and
learned Whigs, because he could throw over their principles the shield
of argument, adorn them with the grace of scholarship, and dignify them
with the luster of birth and station. In this regard his conduct might
be profitably studied by his professed admirers on this side of the
Atlantic.
Mr. Fox was totally unlike his great rival. Pitt was stately, taciturn,
and of an austere temper. Fox was easy, social, and of a kindly
disposition. Pitt was tall and grave, and, entering the House carefully
dressed, walked proudly to the head of the Treasury bench, and took his
seat as dignified and dumb as a statue. Fox was burly and jovial,
entered the House in a slouched hat and with a careless air, and, as he
approached the Opposition benches, had a nod for this learned city
member, and a joke for that wealthy knight of the shire, and sat down,
as much at ease as if he were lounging in the back parlor of a country
inn. Pitt, as the adage runs, could "speak a King's speech off-hand," so
consecutive were his sentences; and his round, smooth periods delighted
the aristocracy of all parties. Fox made the Lords of the Treasury quail
as he declaimed in piercing tones against ministerial corruption, while
his friends shouted "hear! hear!" and applauded till the House shook.
Pitt's sentences were pompous and sonorous, and often "their sound
revealed their own hollowness." Fox uttered sturdy Anglo-Saxon sense;
every word pregnant with meaning. Pitt was a thorough business man, and
relied for success in debate upon careful preparation. Fox despised the
drudgery of the office, and relied upon his intuitive perceptions and
his robust strength. Pitt was the greater Secretary--Fox the greater
Commoner. Pitt's oratory was like the frozen stalactites and pyramids
which glitter around Niagara in mid-winter, stately, clear, and cold.
Fox's like the vehement waters which sweep over its brink, and roar and
boil in the abyss below. Pitt, in his great efforts, only erected
himself the more proudly, and uttered more full Johnsonian sentences,
sprinkling his dignified but monotonous "state-paper style" with pungent
sarcasms, speaking as one having authority, and commanding that it might
stand fast. Fox on such occasions reasoned from first principles,
denouncing where he could not persuade, and reeling under his great
thoughts, until his excited feelings rocked him, like the ocean in a
storm. Pitt displayed the most rhetoric, and his mellow voice charmed,
like the notes of an organ. Fox displayed the most argument, and his
shrill tones pierced like arrows. Pitt had an icy taste; Fox a fiery
logic. Pitt had art; Fox nature. Pitt was dignified, cool, cautious; Fox
manly, generous, brave. Pitt had a mind; Fox a soul. Pitt was a majestic
automaton; Fox a living man. Pitt was the Minister of the King; Fox the
Champion of the People. Both were the early advocates of Parliamentary
reform; but Pitt retreated, while Fox advanced; and both joined in
denouncing and abolishing the horrors of the middle passage. Both died
the same year, and they sleep side by side in Westminster Abbey, their
dust mingling with that of their mutual friend Wilberforce; while over
their tombs watches with eagle eye and extended arm the molded form of
Chatham.