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the acts passed since the Revolution for settling of Foster, are transient- and fleeting, upon a the succession, or that the Legislature hath not footing with deliberate conduct, that the crimin. sufficient authority to make laws for limiting the ating letter of the law itself interposes the check, succession, should be guilty of high treason, and and excludes the danger of a rash judgment, by suffer as a traitor;" and then enacts, “ That if curiously selecting from the whole circle of lan any person shall maliciously, and directly, by guage an expression which can not be mistaken; preaching, teaching, or advised speaking, declare for nothing said upon the sudden, without the and maintain the same, he shall incur the penal- evidence of a context, and sequel in thought or lies of a præmunire.”
conduct, can in common sense deserve the title “I will make a short observation or two," of advised speaking. Try the matter before you Re:narka says Foster, “on the act. First. The upon the principle of the statute of Queen Anne, of Foster positions condemned by them had as di- and examine it with the caution of Foster. rect a tendency to involve these nations in the Supposing, then, that instead of the words irnmiseries of an intestine war, to incite her Maj- puted by this record, the defendant, Appleatise of esty's subjects to withdraw their allegiance from coming hall drunk through this coffee bean her, and to deprive her of her crown and royal house, had, in his conversation with prezent case. dignity, as any general doctrine, any declaration Yatman, denied the right of Parliament to alter not relative to actions or designs, could possibly the succession, could he have been adjudged to have; and yet in the case of bare words, posi- suffer death for high treason under the statute of tions of this dangerous tendency, though main- Queen Anne ? Reason and humanity equally tained maliciously, advisedly, and directly, and revolt at the position, and yet the decision asked even in the solemnities of preaching and teach- from you is precisely that decision. For if you ing, are not considered as overt acts of treason. could not have found [his language) “advised
" Secondly. In no case can a man be argued speaking” to bring it within that statute of treainto the penalties of the act by inferences and son, so neither can you find it as the necessary eviconclusions drawn from what he hath affirmed; dence of the intention charged by the present inthe criminal position must be directly maintained dictment, which intention constitutes the misde. to bring him within the compass of the act.
“Thirdly. Nor will every rash, hasty, or un- If any thing were wanting to confirm these guarded expression, owing, perhaps, to natural principles of the law and the commentaries of its warmth, or thrown out in the heat of disputation, ablest judges, as applicable to words—it is in anrender any person criminal within the act; the other way emphatically furnished by the instance criminal doctrine must be maintained malicious. before us. In the zeal of these coffee-jouse polly and advisedly."
iticians to preserve the defendant's expressions, He afterward adds, "Seditious writings are they were instantly to be put down in writing, permanent things, and if published, they scatter and signed by the persons present. Yet the pa. the poison far and wide. They are acts of de- per read by Colonel Bullock,14 and written, as he liberation, capable of satislactory proof, and not tells you, at the very moment with that intention, ordinarily liable to misconstruction; at least, contains hardly a single word, from the begin. they are submitted to the judgment of the court, ning to the end of it, either in meaning or expres. naked and undisguised, as they came out of the sion, the same as has been related by the witness. author's hands. Words are transient and fleet. es. It sinks, in the first place, the questions put ing as the wind; the poison they scatter is, at to the defendant, and the whole dialogue, which the worst, confined to the narrow circle of a few is the best clue to the business, and records, hearers; they are frequently the effect of a sud- “that Mr. Frost came into the coffee-house and den transport, easily misunderstood, and often declared,” an expression which he never used, and misreported."
which wears the color of deliberation, " that he Gentlemen, these distinctions, like all the dic- wished to see equality prevail in this country,"
tates of sound policy, are as obvious another expression, which it is now agreed en all His principles
to reason as they are salutary in hands he never uttered, and which conveys a very nature of tlings. practice. What a mar writes that different idea from saying, in answer to an imis criminal and pernicious, and what he dissem- pertinent or taunting question, “Oh yes, I am for inates when written, is conclusive of his purpose. equality." I impute nothing at all to Colonel He manifestly must have deliberated on what he Bullock, who did not appear to me to give his wrote, and the distribution is also an act of de- evidence unfairly-he read his paper as he wrote. liberation. Intention in such cases is not, there. But this is the very strength of my observation : sore, matter of legal proof, but of reasonable inference, unless the accused, by proof on his side, 14 The paper was as follows: “Per y coffee. can rebut what reason must otherwise infer: house, 6th of November, 1792. We, the ondermen. since he who writes to others undoubtedly seeks tioned, do hereby certify that at about 10 o'clock to bring over other minds to assimilate with his this evening, Mr. John Frost came into this coffee. own. So he who advisedly speaks to others upon clare that he wished to see equality prevail in this
room, and did then and in our presence openly demomentous subjects, may be presumed to have country, and no King, in a loud and factious way: the same intention. Yet so frail is memory—so and upon being asked whether he meant that there imperfec' are our natures--so dangerous would should be no King in this country, he answered it be to place words, which, to use the langnage 'Yes.'". The papar was not signed.
founded in the
purpose of prosecutir; a such casus.
for suppose the case had not come for months to suspected quarter, when it is pronounced by per. trial, the other witnesses (and honestly too) might sons enjoying every honor from the Crown, and have let their memories lean on the written evi-i treating the people upon all occasions with sus. dence, and thus you would have been trying, and picion and contempt. The three estates of the perhaps condemning the defendant for speaking kingdom are co-ordinate, all alike representing words, stripped too of their explanatory concom- the dignity, and jointly executing the authority itants, which it stands consessed at this moment of the nation; yet all our loyalty seems to be were never spoken at all.
wasted upon one of them. How happens it else Gentlemen, the disposition which has of late that we are so exquisitely sensible, so tremblingPeraicious in prevailed to depart from the wise ly alive to every attack upon the Crown or the ciations for the moderation of our laws and Consti- nobles that surround it, yet so completely careless
tution, under the pretext, or from the of what regards the once respected and awful
zeal of preserving them, and which Commons of Great Britain ? has been the parent of so many prosecutions, is If Mr. Frost had gone into every coffee-house, an awful monument of human weakness. These from Charing Cross to the Exchange, Prevailing tesd. associators to prosecute, who keep watch of late lamenting the dangers of popular gov- subject, and npon our words and upon our looks, are associa- ernment, reprobating the peevishness their danger. ted, it seems, to preserve our excellent Constitu- of opposition in Parliament, and wishing, in the tion from the contagion of France, where an ar- most advised terms, that we could look up to the bitrary and tyrannous democracy, under the col- throne and its excellent ministers alone for quiet or of popular freedom, destroys all the securities and comfortable government, do you think that and blessings of life. But how does it destroy we should have had an indictment? I ask parthem? How, but by the very means that these don for the supposition ; I can discover that you new partners of executive power would them are laughing at me for its absurdity. Indeed, I selves employ, if we would let them—by inflict. might ask you whether it is not the notorious ing, from a mistaken and barbarous state neces- language of the highest men, in and out of Parsity, the severest punishments for offenses never liament, to justify the alienation of the popular defined by the law-by inflicting them upon sus part of the government from the spirit and prinpicion instead of evidence, and in the blind, furi-ciple of its trust and office, and to prognosticate ous, and indiscriminate zeal of persecution, in the very ruin and downfall of England, from a stead of by the administration of a sober and im- free and uncorrupted representation of the great partial jurisprudence. Subtracting the horrors body of the people? I solemnly declare to you, of invading armies which France can not help, that I think the whole of this system leads inev. what other mischief has she inflicted upon her- | itably to the dangers we seek to avert. It diself? From what has she suffered but from this vides the higher and the lower classes of the ondisciplined and cruel spirit of accusation and nation into adverse parties, instead of uniting and rash judgment? A spirit that will look at noth- compounding them into one harmonious whole. ing dispassionately, and which, though proceeding It embitters the people against authority, which, from a zeal and enthusiasm for the most part hon- when they are made to feel and know is but est and sincere, is, nevertheless, as pernicious as their own security, they must, from the very nathe wicked fury of demons when it is loosened from ture of man, anite to support and cherish. I do the sober dominion of slow and deliberate justice. not believe that there is any set of men to be What is it that has lately united all hearts and named in England—I might say, that I do not voices in lamentation? What but these judicial know an individual who seriously wishes to executions, which we have a right to style mur touch the Crown, or any branch of our excellent der, when we see the ax falling, and the prison Constitution; and when we hear peevish and closing upon the genuine expressions of the in- disrespectful expressions concerning any of its offensive heart—sometimes for private letters to functions, depend upon it, it proceeds from some friends, unconnected with conduct or intention- practical variance between its theory and its sometimes for momentary exclamations in favor practice. These variances are the fatal springs of royalty, or some other denomination of govern- of disorder and disgust. They lost America, ment different from that which is established. and in that unfortunate separation laid the foun.
These are the miseries of France, the unhap- dation of all that we have to sear; yet, instead py attendants upon revolution; and united as we of treading back our steps, we seek recovery in all are in deploring them, upon what principle the system which brought us into peril. Lei of common sense shall we vex and terrify the government in England always take care ti subjects of our own country in the very bosom make its administration correspond with the true of peace, and disgust them with the government, spirit of our genuine Constitution, and nothing which we wish them to cherish, by unusual, ir- will ever endanger it. Let it seek to maintain ritating, and degrading prosecutions ?
its corruptions by severity and coercion, and nei Indeed, I am very sorry to say that we hear ther laws nor arms will support it. These are of late too much of the excellence of the British my sentiments; and I advise you, however ungovernment, and feel but too little of its benefits. popular they may be at this moment, to consider They, too, who pronounce its panegyrics, are them before you repel them. those who alone prevent the entire public from If the defendant, among others has judged acceding pr nem. The eulogium comes from a 100 lightly of the advantages of our government
reform his errors by a beneficial experience of moments—that all his words and actions, cren them. Above all, let him feel its excellence to in the most thoughtless passages of his life, are day in its beneficence ; let him compare in his fit for the inspection of God and man, he will be trial the condition of an English subject with the fittest person to take the lead in a judgmen that of a citizen of France, which he is supposed of “Guilty," and the properest foreman to dea in theory to prefer. These are the true crite- liver it with good faith and firmness to the court. rions by which, in the long run, individuals and I know the privilege that belongs to the Ate nations become affectionate to governments, or torney General to reply to all that has been said; revolt against them. Men are neither to be but perhaps, as I have called no witnesses, he talked nor written into the belief of happiness may think it a privilege to be waived. It is, and security when they do not practically feel however, pleasant to recollect, that is it should them, nor talked or written out of them when be exercised, even with his superior talents, his they are in the full enjoyment of their blessings : honor and candor will guard it from abuse. but if you condemn the defendant upon this sort of evidence, depend upon it, he must have his adherents, and, as far as that goes, I must be one The Attorney General having exercised his of them.
privilege of reply, Lord Kenyon sammed up; Gentlemen, I will detain you no longer, being and the jury, after a consultation of an hour and Peroration: satisfied to leave you, as conscientious a half, returned a verdict of “Guilty. Mr. is without sin men, to judge the defendant as you Frost was sentenced to be imprisoned in New. amente entre yourselves would be judged; and if gate six months, to stand one hour in the pillory,
there be any among you who can say and to be struck off the roll of attorners, where to the rest that he has no weak or inconsiderate by he was ruined for lise.
OF MR. ERSKINE FOR MR. BINGHAM ON A TRIAL FOR ADULTERY, DELIVERED IN THE COURT
OF KING'S BENCH, FEBRUARY 24, 1794.
INTRODUCTION. This was almost the only case in which Mr. Erskine ever appeared as counsel for the defendant in a trial of this kind. All his sympathies and feelings were with the bereaved party; and so fervid were bi appeals on such occasions, that in many instances he gained an amount of damages which swept the en tire property of the defendant.
But the circumstances of this case were so peculiar, that Mr. Erskine felt bimself authorized to appear for the defense. Mr. Bingham, afterward the Earl of Lucan, bad formed an early attachment for Lady Elizabeth Fauconberg, which was warmly reciprocated by the latter. They were engaged to be ma! ried, and had the expectation of an early union, when the match was broken off by her parents in favor of Mr. Howard, afterward the Duke of Norfolk, and she was compelled to marry one whom she regarded with disgust and even abhorrence. She bore him a son within sisteen months after their marriage ; but her affections continued to be passionately fixed on Mr. Bingbam (who had at first avoided her soci sty); a renewed intercourse gradually sprung up between them; her husband naturally became alienated by the growing hostility of her feelings; and after mutual upbraidings, she left him at the end of four years, and eloped with Mr. Bingham. It was certainly proper that they should now be divorced, especially as she was expected to give birth speedily to a child by the latter; but through a singular anomaly in the English laws, a divorce could be obtained only by Mr. Howard's bringing an action in damages against Mr. Bingham for depriving bim of the comfort and society of bis wife!"
Mr. Erskine's management of the case was truly admirable. The entire simplicity with which he com mences-his disclaimer of all idea of being eloquent, or of making any address to the feelings of the jury -the dry detail of dates with which he enters on the facts of the case, so perfectly suited to do away all suspicion on that subject-his pointed exposure of the opposing counsel's statements without evidence to support them—the vivid picture wbich he brings before the mind of the ill-fated daughter “given up to the plaintiff by the infatuation of parents, and stretched upon her bridal bed as opon a rack"-the bold burst of passion with which he exclaims, “Mr. Howard was never married”—“ he was himself the seducer"-"imagine my client to be plaintiff, and what damages are you not prepared to give lim, and yet he is here as defendant !"—the solemn lessons for the nobility which he deduces from the case, so instructive in themselves, and so peculiarly adapted to strengthen his cause-every thing, in short, conspires to make this speech, though brief, one of the most perfect exhibitions of power over the minds of • jary, to be found in the eloquence of our language.
SPEECH, &c. GENTLEMEN OF THE JURY,- My learned | address from me, as counsel for the defendant, friend, as counsel for the plaintiff, has bespoke an which you must not, I assure you, expect to hesc
counsel had predicted.
He has thought it right (partly in courtesy to me, Now, to show you how little disposed I am to None of the el. as I am willing to believe, and in part work upon you by any thing but by Siatement of er vected which for the purposes of his cause) that proof; to convince you how little de- the case
you should suppose you are to be ad- sirous I am to practice the arts of speech as my
dressed with eloquence which I nev- only artillery in this cause, I will begin with a fers er possessed, and which, if I did, I should be in- plain dates, and, as you have pens in your hands. capable at this moment of exerting; because the I will thank you to write them down. I shall bemost eloquent man, in order to exert his elogin with stating to you what my cause is, and shal. quence, must have his mind free from embarrass- then prove it—not by myself, but by witnesses. ment on the occasion on which he is to speak- The parties were married on the 24th of April I am not in that condition. My learned friend 1789. The child that has been spok. Marrince of has expressed himself as the friend of the plain- en of, and in terms which gave me great and Dino tiff's family. He does not regard that family satisfaction, as the admitted son of the their child. more than I do; and I stand in the same predic- plaintiff, blessed with the affection of his parent, ament toward my own honorable client and his and whom the noble person to whom he may be relations. I know him and them, and because I come heir can look upon without any unpleasant Forbidden by know them, I regard them also: my reflection—that child was born on the 12th of ing situation of embarrassment, however, only arises August, 1791. Take that date, and my learned
at being obliged to discuss this ques- friend's admission, that this child must have been tion in a public court of justice, because, could the child of Mr. Howard ; an admission which it have been the subject of private reference, I could not have been rationally or consistently should have felt none at all in being called upon made, but upon the implied admission that no ilto settle it.
licit connection had existed previously by which Gentlemen, my embarrassment is abundantly its existence might have been referred to the dencreased, when I see present a noble person, fendant. On this subject, therefore, the plaintiff aigh, very high in rank in this kingdom, but not must be silent. He can not say the parental mind higher in rank than he is in my estimation : I has been wrung; he can not say hereafter, “NO speak of the noble Duke of Norfolk, who most son OF MINE SUCCEEDING"'_he can say none of undoubtedly must feel not a little at being obliged these things. This child was born on the 12th to come here as a witness for the defendant in of August, 1791, and as Mr. Howard is admitThe cause of a plaintiff so nearly allied to him-ted to be the author of its existence (which he self. I am persuaded no man can have so little must have been, if at all, in 1790), I have a right sensibility, as not to feel that a person in my sit- to say that, during all that interval, this gentleNation must be greatly embarrassed in discuss- man could not have had the least reasonable cause ing a question of this nature before such an of complaint against Mr. Bingham. His jealousy audience, and between such parties as I have must, of course, have begun after that period, described.
for, had there been grounds for it before, there Gentlemen, my learned friend desired you could be no sense in the admission of his counError of the ne; would take care not to suffer argu- sel, nor any foundation for that parental consolain giving testi: ment, or observation, or eloquence to tion which was brought forward in the
fron: be called into the field, to detach your of the cause.
attention from the evidence in the The next dry date is, therefore, the 24th of cause, upon which alone you ought to decide; 1 July, 1793 ; and I put it to his Lordwish my learned friend, at the moment he gave ship, that there is no manner of evi- Howard's
elopement you that caution, had not himself given testimony dence which can be pressed into this of a fact to which he stood the solitary witness. cause previous to that time. Let me next dis. I wish he had not introduced his own evidence, embarrass the cause from another assertion of without the ordinary ceremony of being sworn. my learned friend, namely, that a divorce can I will not follow his example. I will not tell not take place before the birth of this you what I know from the conversation of my child; and that, if the child happens posing counsel client, nor give evidence of what I know myself
. to be a son, which is one contingenoy My learned friend tells you that nothing can ex- --and if the child so born does not die, which is ceed the agony of mind his client has suffered, another contingency-and if the noble Duke dies and that no words can describe his adoration of without issue, which is a third contingency—then the lady he has lost : these most material points this child might inherit the honors of the house of the cause rest, however, altogether on the sin- of Norfolk. That I deny. My recent experigle, unsupported, unsworn evidence of the coun- ence tells me the contrary. In a case wheru sel for the plaintiff. NO RELATION has been Mr. Stewart, a gentleman of Ireland, stood in a called upon to confirm them, though we are told similar predicament, the Lords and Commons of that the whole house of Fauconberg, Bellasyse, England not only passed an Act of Divorce beand Norfolk are in the avenues of the court, tween him and his lady, but, on finding there was ready, it seems to be called at my discretion : no access on the part of the husband, and that the and yet my learned friend is himself the only child was not his, they bastardized the issue. witness; though the facts (and most material What, then, remains in this cause? Gentle facts, indeed, they would have been) might have been proved by so many illustricus persons.
"MacbethAct iii., Scene 2
mony without being under oath.
Tiine of Mrs
Error of the or
as to divorce.
men, there remains only this : In what manner, / pathies of their offspring, and all the eweet, de: True point when you have heard my evidence (for lightlul relations of social existence. While the
this is a cause which, like all others, curtains, therefore, are yet closed upon this bridal must stand upon evidence), the plaintiff shall be scene, your imaginations will naturally represent able to prove, what I have the noble judge's to you this charming woman endeavoring to conauthority for saying he must prove, namely, the ceal sensations which modesty sorbids the sex, Loss of the comfort and society of his wife, by the however enamored, too openly to reveal, wisb. seduction of the defendant. That is the very ing, beyond adequate expression, what she must 'gist of the action. The loss of her affection, and not even attempt to express, and seemingly reof domestic happiness, are the only legal founda- sisting what she burns to enjoy. tions of his complaint.
Alas, gentlemen! you must now prepare to seo Now, before any thing can be lost, it must have in the room of this a scene of horror
The lady's pro existed; before any thing can be taken away from and of sorrow. You must prepare to vions engage a man, he must have had it; before the seduction see a noble lady, whose birth surely ing refil an unea of a woman's affections from her husband can take required no further illustration; who to the marriage. place, he must have possessed her affections. had been courted to marriage before she ever Gentlemen, my friend, Mr. Mingay, acknowl- heard even her husband's name; and whose al
edges this to be the law, and he shapes fections were irretrievably bestowed upon, and tons of oppos. his case accordingly. He represents pledged to, my honorable and unfortunate client;
his client, a branch of a most illustri- you must behold her given up to the plaintiff by ous house, as casting the eyes of affection upon the infatuation of parents, and stretched upon this a disengaged woman, and of rank equal to, or, at bridal-bed as upon a rack; torn from the arms least, suitable to his own. He states a marriage of a beloved and impassioned youth, himself of of mutual affection, and endeavors to show that noble birth, only to secure the honors of a higher this young couple, with all the ardor of love, flew title; a legal victim on the altar of Heraldry. into each other's embraces. He shows a child, Gentlemen, this is no high coloring for the the fruit of that affection, and finishes with intro- purposes of a cause ; no words of an advocate ducing the seductive adulterer coming to disturb can go beyond the plain, unadorned effect of the all this happiness, and to destroy the blessings evidence. I will prove to you that when she which he describes. He exhibits the defendant prepared to retire to her chamber she threw her coming with all the rashness and impetuosity of desponding arms around the neck of ber conti youth, careless of the consequences, and thinking dential attendant, and wept upon her as a crim. of nothing but how he could indulge his own Just- inal preparing for execution. I will prove to sul appetite at the expense of another man's hon- you that she met her bridegroom with sighs and or; while the unhappy husband is represented tears — the sighs and tears of afflicted love fou as watching with anxiety over his beloved wife, Mr. Bingham, and of rooted aversion to her hus. anxious to secure her affections, and on his guard band. I think I almost hear her addressing him to preserve her virtue. Gentlemen, is such a case, in the language of the poeta or any thing resembling it, is established, I shall
"I tell thee, Howard, leave the defendant to whatever measure of dam. Such hearts as ours were never pair'd above: ages you choose, in your resentment, to inflict.
Ill-suited to each other; join'd, not match'd;
Some sullen influence, a foe to both,
Has wrought this fatal marriage to updo os.
Mark but the frame and temper of our minds, ter with the most precise and uncontro
How very much we differ. Ev’n this day, vertible proofs), I will begin with drawing up the That fills thee with such ecstasy and transport, curtains of this blessed marriage-bed, whose joys To me brings nothing that should make me bless it are supposed to have been nipped in the bud by To think it better than the day before, the defendant's adulterous seduction.
Or any other in the course of time, Nothing, certainly, is more delightful to the
That duly took its turn, and was forgotter..'' human fancy than the possession of a beautiful Gentlemen, this was not the sudden burst of woman in the prime of health and youtbsul pas- youthful disappointment, but the fixed and sete
it is beyond all doubt the highest enjoyment tled habit of a mind deserving of a happier sale which God, in his benevolence, and for the wisest I shall prove that she frequently spent her nights purposes, has bestowed upon his own image. I upon a couch, in her own apartments, dissolved reverence, as I ought, that mysterious union of in tears; that she frequently declared to her mind and body which, while it continues our spe- woman that she would rather go to Newgate cies, is the source of all our affections; which than to Mr. Howard's bed; and it will appear, builds up and dignifies the condition of human life; by his own confession, that for months subsequent which binds the husband to the wife by ties more to the marriage she obstinately refused him the indissoluble than laws can possibly create, and privileges of a husband. which, by the reciprocal endearments arising To all this, it will be said by the plaintiff's from a mutual passion, a mutual interest, and a counsel (as it has, indeed, been hintmutual honor, lays the foundation of that parent. ed already), that disgust and aliena. Da sense isese al affection which dies in the brutes with the ne- tion from her husband could not but cessities of nature, but which reflects back again be expected; but that it arose from her affectior upon the human parents the unspeakable sym- for Mr. Bingham. Be it so, gentlemen. I read
True state of facts.
Mr. Bingham in