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tial to the decision of cases in Chancery; and “ the doctrines which prevail in the courts of equity," as Sir Samuel Romilly remarked, “ were to him almost like the aws of a foreign country.”. He had always thrown contempt upon proceedings in these courts; and was sometimes taunted with his pathetic appeal to Lord Kenyon, when recommending that his client should apply to chancery for redress : "Would your Lordship send a dog you loved there ?" Still, he endeavored to gain what information he could on the subject at his period of life, and said humorously to Romilly, who excelled in this knowledge of these proceedings, “ You must make me a chancellor now, that I may afterward make you one." Though he added no honor to the office, he did not disgrace it. None of his decisions except one were ever called in question, and that was affirmed by the House of Lords. He presided with dignity, and when he retired from office, as he did at the end of thirteen months, Sir Arthur Pigot addressed him in the name of the bar, expressing "their grateful sense of the kindness shown them while he presided.”
The remainder of Erskine's life was saddened by poverty, and unworthy of his rarly fame. The usages of the profession forbade his returning to the bar; the pension on which he retired was small; the property he had gained was wasted in speculations; and his early sense of character was unhappily lost, to some extent, in the general wreck of his fortunes. He died on a visit to Scotland, at Almondell, the residence of his sister-in-law, on the 17th of November, 1823, in the seventy-third year of his age.
The oratory of Erskine owed much of its impressiveness to his admirable delivery. He was of the medium height, with a slender but finely-turned figure, animated and graceful in gesture, with a voice somewhat shrill but beautifully modulated, a countenance beaming with emotion, and an eye of piercing keenness and power. “Juries," in the words of Lord Brougham, "have declared that they felt it impossible to remove their looks from him, when he had riveted, and, as it were, fascinated them by his first glance; and it used to be a common remark of men who observed his motions, that they resembled those of a blood-horse ; as light, as limber, as much betokening strength and speed, as free from all gross superfluity or encumbrance."
His style was chaste, forcible, and harmonious, a model of graceful variety, without the slightest mannerism or straining after effect. His rhythmus was beautiful : that of the passage containing his Indian Chief is surpassed by nothing of the kind in our language. His sentences were sometimes too long—a fault which arose from the closeness and continuity of his thought.
The exordium with which Erskine introduced a speech was always natural, ingenious, and highly appropriate; none of our orators have equaled him in this respect. The arrangement of the matter which followed was highly felicitous; and he had this peculiarity, which gave great unity and force to his arguments, that "he proposed,” in the words of another, "a great leading principle, to which all his efforts were referable and subsidiary—which ran through the whole of his address, governing and elucidating every part. As the principle was a true one, whatever might be its application to that particular case, it gave to his whole speech an air of honesty and sincerity which it was difficult to resist."
• The Rev. Dr. Emmons, one of the acutest reasoners among the divines of New England, was accustomed (as the writer is directly informed) to read the Massachusetts Reports as they came out, for the pleasur; and benefit they affordel him as specimens of powerful reasoning. Would not our vnung divines find similar benefit from the study of great legal arguments liko these of Erskine 1
OF MR. ERSKINE IN BEHALF OF LORD GEORGE GORDON WHEN INI :OTED FOR HIGH TREASUR
DELIVERED BEFORE THE COURT OF THE KING'S BENCH, FEBRUARY 5, 1781.
INTRODUCTION. LORD GEORGE Gordon, a member of the House of Commons, was a young Scottish nobleman of weak intellect and enthusiastic feelings. He had been chosen president of the Protestant Association, whose object was to procure the repeal of Sir George Saville's bill in favor of the Catholics. In this capacity, he directed the association to meet him in St. George's Fields, and proceed thence to the Parliament House with a petition for the repeal of the bil. Accordingly, about forty thousand persons of the middling classes assembled on Friday, the 2d of June, 1780, and, after forming a procession, moved forward till they blocked up all the avenues to the House of Commons. They had no arms of any kind, and were most of them orderly in their conduct, though individuals among them insulted some members of both Houses who were passing into the building, requiring them to put blue cockades on their hats, and to cry “No Popery!"
Lord George presented the petition, but the House refused to consider it at that time, by a vote of 192 to 6. The multitude now became disorderly, and after the House adjourned, bodies of men proceeded to demolish the Catholic chapels at the residences of the foreign ministers. From this moment the whole affair changed its character. Desperate men, many of them thieves and robbers, took the lead. Not only were Catholic chapels set on fire, but the London prisons were broken open and destroyed; thirty-six fires were blazing at one time during the night; the town was for some days completely in the power of the multitude; Lord Mansfield's house was destroyed; the breweries and distilleries were broken open, and the mob became infuriated with liquor; and for a period there was reason to apprehend that the whole of the metropolis might be made one general scene of conflagration. The military were at last called in from the country, and, after a severe conflict, the mob was put down; but not until ncarly five hundred persons had been killed or wounded, exclusive of those who perished from the effects of intoxi. cation.
The government had been taken by surprise: no adequate provision was made to guard against vio. lence, and, as the riots went on, all authority for a time seemed to be paralyzed or extinct. When order was at last restored, the magistrates, as is common with those who have neglected their duty, endeavored to throw the blame on others—they resolved to make Lord George Gordon their scapegoat. He was accordingly arraigned for high treason; and such was the excitement of the public mind, such the eager. ness to have some one punished, that he was in imminent danger of being made the victim of public resentment. It was happy for him that, in addition to Mr. (afterward Lord) Kenyon, his senior coursel. a man of sound mind, but wholly destitute of eloquence, he had chosen Mr. Erskine, as a Scotchman, to aid in his defense. It was the means probably of saving his life.
The Attorney General opened the case in behalf of the Crown, contending (1.) That the prisoner, in assembling the multitude round the two Houses of Parliament, was guilty of high treason, if he did so with a view to overawe and intimidate the Legislature, and enforce his purposes by numbers and violence (a doctrine fully confirmed by the court); and (2.), That the overt acts proved might be fairly construed into such a design, and were the only evidence by which a traitorous intention, in such a case, could be shown. When the evidence for the Crown was received, Mr. Kenyon addressed the jury in behalf of Lord George Gordou, but in a manner so inefficient that, when he sat down, “ the friends of Lord George were in an agony of apprehension." According to the usual practice, Mr. Erskine should now have followed, before the examination of his client's witnesses. But be adroitly changed the order, claiming as a privilege of the prisoner (for which he adduced a precedent) to have the evidence in his favor received at once. His object was, by meeting the evidence of the Crown with that of Lord George's witnesses as early as pog. sible, to open a way for being heard with more favor by the jury, and of commenting upon the evidence on both sides as compared together. The Rev. Mr. Middleton, a member of the Protestant Association, swore that he had watched the prisoner's conduct, and that he appeared to be always actuated by the greatest loyalty to the King and attachment to the Constitution—that his speeches at the meetings of the association, at Coachmakers' Hall, never contained an expression tending directly or indirectly to a repeal of the bill by force—that he desired the people not even to carry sticks in the procession, and begged that riotous persons might be delivered to the constables. Mr. Evans, an eminent surgeon, de. clared that he saw Lord George Gordon in the center of one of the divisions in St. George's Fields, and that it appeared from bis conduct and expressions that he wished and endeavored to prevent all disorder. This was confirmed by others; and it was proved by decisive evidence that the bulk of the people round the Parliament House and in the lobby were not members of the Association, but idlers, vagabonds, and pickpockets, who had thrust themselves in; so that the persons who insulted the members were of a totally different class from those who formed the original procession. The Earl of Lonsdale swore that he took the prisoner home from the House in his carriage ; that great multitudes surrounded Lord George, in. quiring the fate of the petition; that he answered it was uncertain, and earnestly entreated them to retire to their homes and be quiet.
| The reader has already seen Mr. Burke's admirable exposition of the reasons for Sir George Savillo's bill, in his speech at Bristol, pages 299–310.
The evidence was not closed until after midnight, when Mr. Erskine addressed the jury in the follow. ing speech. Lord Campbell says of it, “Regularly trained to the profession of the law-having practiced thirty years at the bar-having been Attorney General above seven yearsbaving been present at many trials for high treason, and having conducted several myself, I again peruse, with increased astonishment and delight, the speech delivered on this occasion by him, who had recently thrown aside the scarlet uniform of a subaltern in the army, which he had substituted for the blue jacket of a midshipman, thrust apon him while he was a school-boy. Here I find not only great acuteness, powerful reawning, enthusiastic zeal, and burning eloquence, but the most masterly view ever given of the English la of high trea on, the foundation of all our liberties.”—Lires of the Chancellors, vol. vi., page 408.
Reasons for da
to the speaker.
SPEECH, &c. GENTLEMEN OF THE JURY,—Mr. Kenyon hav- , experience, to the highest rank iu his profession,
ing informed the court that we pro- has spoken of with that distrus! and diffidence dence in favor pose to call no other witnesses, it is which becomes every Christian in a cause of of the prisoner. now my duty to address myself to you blood. If Mr. Kenyon has suce feelings, think as counsel for the noble prisoner at the bar, the what mine must be. Alas! genilemen, who am whole evidence being closed. I use the word | 1? A young man of little experience, unused to closed, because it certainly is not finished, since the bar of criminal courts, and sinking under the I have been obliged to leave the seat in which I dreadful consciousness of my defects. I have, sat, to disentangle myself from the volumes of however, this consolation, that no ignorance nor men's names, which lay there under my feet, inattention on my part can possii•ly prevent you whose testimony, had it been necessary for the from seeing, under the direction of the Judges, defense, would have confirmed all the facts that that the Crown has established no case of treason. are already in evidence before you.'
Gentlemen, I did expect that the Attorney Gentlemen, I feel myself entitled to expect, General. in opening a great and sol- Transition: Indulgence due both from you and from the court, the emn state prosecution, would have at
greatest indulgence and attention. I least indulged the advocates for the of treasun. am, indeed, a grcater object of your compassion prisoner with his notions on the 'aw, as applied than even my noble friend whom I am defending to the case before you, in less : eneral terms." He rests secure in conscious innocence, and in the It is very common, indeed, in lis e civil actions, well-placed assurance that it can suffer no stain in to make such obscure introduc cas by way of your hands. Not so with me. I stand before you trap. But in criminal cases i r- unusual and a troubled, I am afraid a guilty man, in having unbecoming; because the right f the Crown to presumed to accept of the awsul task which I am reply, even where no witnesses . re called by the now called upon to perform—a task which my prisoner, gives it thereby the wivantage of re. learned friend who spoke before me, though he plying, without having given sewpe for observahas justly risen, by extraordinary capacity and tions on the principles of the opening, with which
the reply must be consistent. i Mr. Erskine shows great dexterity in turning a One observation he has, however, made on the slight circumstance at the opening of his speech, subject, in the truth of which I heart- Greatne*of into a means of impressing the jury from the first ily concur, viz., that the crime of which with a sense of his client's innocence. He had sat the noble person at your bar stands accused, is thus far in the front row, with large files of papers the very highest and most atrocious that a mem. at his feet, but be now stepped back to obtain great ber of civil life can possibly commit; because in er freedom of movement; and this he represents as done to escape from “ the volumes of men's names" is not, like all other crimes, merely an injury to who stood ready to confirm the evidence in favor of society from the breach of some of its reciprocal Lord Gordon! So the next paragraph, though in form relations, but is an attempt utterly to dissolve and a plea for indulgence to himself as a young speaker, destroy society altogether. is in fact the strongest possible assumption of the prisoner's innocence, since the guilt referred to con- of our laws so strongly and eminently Hence it is most
In nothing, therefore, is the wisdom and justice sisted in bis venturing to endanger, by his inexpe: manifested as in the rigid, accurate, exactly defined. rience, the cause of one who stood secure himself “ in conscious innocence." There is hardly any 2 The reader can not fail to remark how admira. tuing for which Mr. Erskine deserves more to be bly one thought grows out of another in the transi studied, than his thus making every circumstance tion, all of them important and all preparing the mind conspire to produce the desired impression. All is so to be deeply interested in the discussion of the sub easy and natural, that men never think of it as the ject to which it leads, the nature of high treason resuit of design or premeditation, and here lies his The same characteristic runs throughout the whole consummate skill as an advocate.
of tyranny if overstrained.
cautious, explicit, unequivocal definition of what (1.) To compass or imagine the death of the shall constitute this high offense. For, high King : such imagination or purpose of the mind treason consisting in the breach and dissolution (visible only to its great Author) being maniof that allegiance which binds society together, fested by some open act; an institution obviousiy if it were lest ambiguous, uncertain, or undefined, directed, not only to the security of his natural all the other laws established for the personal se- person, but to the stability of the government; curity of the subject would be utterly useless ; since the life of the Prince is so interwoven with since this offense, which, from its nature, is so the Constitution of the state, that an attempt te capable of being created and judged of by the destroy the one is justly held to be rebellious rules of political expediency on the spur of the conspiracy against the other. occasion, would be a rod at will to bruise the (2.) (which is the crime charged in the indict. most virtuous members of the community, when- ment) To levy war against him in his realm : a ever virtue might become troublesome or obnox. term that one would think could require no exious to a bad government.
planation, nor admit of any ambiguous construcInjuries to the persons and properties of our tion, among men who are willing to read laws A potent engine
neighbors, considered as individuals, according to the plain signification of the lanwhich are the subjects of all other guage in which they are written; but which has,
criminal prosecutions, are not only nevertheless, been an abundant source of that capable of greater precision, but the powers of constructive cavil which this sacred and valuathe state can be but rarely interested in strain- ble act was made expressly to prevent. The ing them beyond their legal interpretation. But real meaning of this branch of it, as it is botif treason, where the government is directly of tomed in polioy, reason, and justice; as it is orsended, were left to the judgment of its ministers, dained in plain unambiguous words; as it is conwithout any boundaries-nay, without the most firmed by the precedents of justice, and illustrated broad, distinct, and inviolable boundaries marked by the writings of the great lights of the law in out by the law—there could be no public free- different ages of our history, I shall, before I sit dom. The condition of an Englishman would be down, impress upon your minds as a safe, unerno better than a slave's at the foot of a Sultan; ring standard by which to measure the evidence since there is little difference whether a man dies you have heard. At present I shall only say, that by the stroke of a saber, without the forms of a far and wide as judicial decisions have strained trial, or by the most pompous ceremonies of jus- the construction of levying war beyond the wartice, if the crime could be made at pleasure by rant of the statute, to the discontent of some of the state to fit the fact that was to be tried the greatest ornaments of the profession, they Would to God, gentlemen of the jury, that this hurt not me. As a citizen I may disapprove of were an observation of theory alone, and that the them, but as advocate for the noble person at page of our history was not blotted with so many your bar, I need not impeach their authority. For melancholy, disgraceful proofs of its truth! But none of them have said more than this, "that war these proofs, melancholy and disgraceful as they may be levied against the King in his realm, not are, have become glorious monuments of the only by an insurrection to change or to destroy wisdom of our fathers, and ought to be a theme the fundamental Constitution of the government of rejoicing and emulation to us. For, from the itself by rebellious war; but, by the same war, to mischiefs constantly arising to the state from ev- endeavor to suppress the execution of the laws it ery extension of the ancient law of treason, the has enacted, or to violate and overbear the proancient law of treason has been always restored, tection they afford, not to individuals (which is a and the Constitution at different periods washed private wrong), but to any general class or de. clean; though, unhappily, with the blood of op- scription of the community, by premeditated open pressed and innocent men.
acts of violence, hostility, and force.” I. When I speak of the ancient law of treason, Gentlemen, I repeat these words, and call sol. Hich trenson I mean the venerable statute of King emnly on the judges to attend to what Criterion of
Edward the Third, on which the in- say, and to contradict me if I mis. Ligh treason. dictment you are now trying is framed-a stat- take the law, “ By premeditated open acts of vioute made, as its preamble sets forth, for the more lence, hostility, and force," nothing equivocal, precise definition of this crime, which has not, nothing ambiguous, no intimidations or overawby the common law, been sufficiently explained ; ings, which signify nothing precise or certain (be. and consisting of different and distinct members, cause what frightens one man or set of men may the plain unextended letter of which was thought have no effect upon another), but that which to be a sufficient protection to the person and compels and coerces-open violence and force. honor of the Sovereign, and an adequate security Gentlemen, this is not only the whole text; but to the laws committed to his execution. I shall I submit it to the learned judges, under whose mention only two of the number, the others not correction I am happy to speak, an accurate exbeing in the remotest degree applicable to the facts of the case, as they were afterward to come present accusation.3
out in evidence. The points made most prominent In this statement of the law of treason, perfectly are the points he had occasion afterward to use. fair and accurate as it is, there is one thing wbich Thus the jury were prepared, without knowing it, marks the consummate skill of Mr. Erskine. He to look at the evidence under aspects favorable to sbapes it throughout with a distinct reference to the the prisoner.
to its peace.
pinnation of the statute of treason, as far as it re- ; less he has levied war against the King in his cates to the present subject, taken in its utmost realm, contrary to the plain letter, spirit, and in. extent of judicial construction; and which you tention of the act of the twenty-fifth of Edward can not but see, not only in its letter, but in its the Third—to be extended by no new or occa most strained signification, is confined to acts sional construction, to be strained by no fancied which immediately, openly, and unambiguously analogies, to be measured by no rules of politic. strike at the very root and being of government, al expediency, to be judged of by no theory, to ard not to any other offenses, however injurious be determined by the wisdom of no individual,
however wise, but to be expounded by the sim. Such were the boundaries of high treason ple, genuine letter of the law. All attempts to marked out in the roign of Edward Gentlemen, the only overt act charged in the hidehele crime the Third ; and as often as the vices indictment, is the assembling the mul
of bad princes, assisted by weak subo titude, which we all of us remember responsible ou missive Parliaments, extended state offenses be- went up with the petition of the As- inal aluje top yond the strict letter of that act, so often the vir- sociated Protestants, on the second the assemblage tue of. better princes and wiser Parliaments day of last June. In addressing myself to a hu. brought them back again. A long list of new mane and sensible jury of Englishmen, sitting in treasons, accumulated in the wretched reign of judgment on the life of a fellow-citizen, more Richard the Second, from which (to use the lan- especially under the direction of a court so filled guage of the act that repealed them)
as this is, I trust I need not remind you that the knew what to do or say for doubt of the pains of purposes of that multitude, as originally assemdeath,” were swept away in the first year of bled on that day, and the purposes and acts of Henry the Fourth, his successor; and many more, him who assembled them, are the sole objects which had again sprung up in the following dis- of investigation. All the dismal consequences tracted arbitrary reigns, puiting tumults and riots which followed, and which naturally link them. on a footing with armed rebellion, were again lev- selves with this subject in the firmest minds, eled in the first year of Queen Mary, and the stat- must be altogether cut off, and abstracted from ute of Edward made once more the standard of your attention, further than the evidence war. treasons. The acts, indeed, for securing his pres- rants their admission. If the evidence had been ent Majesty's illustrious House from the machi- co-extensive with these consequences; if it had nations of those very Papists, who are now so been proved that the same multitude, under the highly in favor, have, since that time, been added direction of Lord George Gordon, had afterward to the list. But these not being applicable to the attacked the Bank, broke open the prisons, and present case, the ancient statute is still our only set London in a conflagration, I should not now guide ; which is so plain and simple in its object, be addressing you. Do me the justice to believe so explicit and correct in its terms, as to leave no that I am neither so foolish as to imagine I could room for intrinsic error; and the wisdom of its have defended him, nor so profligate to wish it authors has shut the door against all extension if I could. But when it has appeared, not only of its plain letter ; declaring, in the very body of by the evidence in the cause, but by the evidence the act itsell, that nothing out of that plain letter of the thing itself—by the issues of life, which should be brought within the pale of treason by may be called the evidence of Heaven — that inference or construction, but that, if any such these dreadful events were either entirely uncases happened, they should be referred to the connected with the assembling of that multitude Parliament.
to attend the petition of the Protestants, or, at This wise restriction has been the subject of the very worst, the unforeseen, undesigned, unThese restric, much just eulogium by all the most abetted, and deeply regretted consequences of by the Migueesta celebrated writers on the criminal it, I confess the seriousness and solemnity of this
law of England. Lord Coke says trial sink and dwindle away. Only abstract from the Parliament that made it was on that account your minds all that misfortune, accident, and called Benedictum, or Blessed; and the learned the wickedness of others have brought upon and virtuous Judge Hale, a bitter enemy and op- the scene, and the cause requires no advocate. poser of constructive treason, speaks of this sa- When I say that it requires no advocate, I mean cred institution with that enthusiasm which it that it requires no argument to screen it from can not but inspire in the breast of every lover the guilt of treason. For though I am perfectly of the just privileges of mankind.
convinced of the purity of my noble friend's inGentlemen, in these mild days, when juries tentions, yet I am not bound to defend his pru.
are so free and judges so independent, dence, nor to set it up as a pattern for imitation: perhaps all these observations might since you are not trying him for imprudence, for
have been spared as unnecessary. But indiscreet zeal, or for want of foresight and pre. they can do no harm; and this history of treason, caution, but for a deliberate and malicious preso honorable to England, can not (even imper- determination to overpower the laws and governfectly as I have given it) be unpleasant to En- ment of his country, by hostile, rebellious force glishmen. At all events, it can not be thought The indictment, therefore, first charges that an inapplicable introduction to saying that Lord the multitude assembled on the 2d The indietmen George Gordon, who stands before you indicted of June were armed and arrayed charges that for that crime, is not, can not be guilty of 1, un. I in a warlike manner;" which, indeed, arned.
Definition applied to the present case.