the acts passed since the Revolution for settling | of Foster, are transient and fleeting, upon a the succession, or that the Legislature hath not sufficient authority to make laws for limiting the succession, should be guilty of high treason, and suffer as a traitor;" and then enacts, "That if any person shall maliciously, and directly, by preaching, teaching, or advised speaking, declare and maintain the same, he shall incur the penalties of a præmunire." footing with deliberate conduct, that the crimin ating letter of the law itself interposes the check, and excludes the danger of a rash judgment, by curiously selecting from the whole circle of lan guage an expression which can not be mistaken; | for nothing said upon the sudden, without the evidence of a context, and sequel in thought or conduct, can in common sense deserve the title of advised speaking. Try the matter before you upon the principle of the statute of Queen Anne, and examine it with the caution of Foster. Supposing, then, that instead of the words im ples to the "I will make a short observation or two," Remarks says Foster, "on the act. First. The of Foster, positions condemned by them had as direct a tendency to involve these nations in the miseries of an intestine war, to incite her Maj-puted by this record, the defendant, Application of esty's subjects to withdraw their allegiance from her, and to deprive her of her crown and royal dignity, as any general doctrine, any declaration not relative to actions or designs, could possibly have; and yet in the case of bare words, positions of this dangerous tendency, though maintained maliciously, advisedly, and directly, and even in the solemnities of preaching and teaching, are not considered as overt acts of treason. Secondly. In no case can a man be argued into the penalties of the act by inferences and conclusions drawn from what he hath affirmed; the criminal position must be directly maintained to bring him within the compass of the act. "Thirdly. Nor will every rash, hasty, or unguarded expression, owing, perhaps, to natural warmth, or thrown out in the heat of disputation, render any person criminal within the act; the criminal doctrine must be maintained maliciously and advisedly." He afterward adds, "Seditious writings are permanent things, and if published, they scatter the poison far and wide. They are acts of deliberation, capable of satisfactory proof, and not ordinarily liable to misconstruction; at least, they are submitted to the judgment of the court, naked and undisguised, as they came out of the author's hands. Words are transient and fleeting as the wind; the poison they scatter is, at the worst, confined to the narrow circle of a few hearers; they are frequently the effect of a sudden transport, easily misunderstood, and often misreported." His principles coming half drunk through this coffee- these princ house, had, in his conversation with present case. Yatman, denied the right of Parliament to alter the succession, could he have been adjudged to suffer death for high treason under the statute of Queen Anne? Reason and humanity equally revolt at the position, and yet the decision asked from you is precisely that decision. For if you could not have found [his language] advised speaking" to bring it within that statute of treason, so neither can you find it as the necessary evidence of the intention charged by the present dictment, which intention constitutes the misde meanor. in If any thing were wanting to confirm these principles of the law and the commentaries of its ablest judges, as applicable to words—it is in another way emphatically furnished by the instance before us. In the zeal of these coffee-house politicians to preserve the defendant's expressions, they were instantly to be put down in writing, and signed by the persons present. Yet the pa. per read by Colonel Bullock, and written, as he tells you, at the very moment with that intention, contains hardly a single word, from the begin ning to the end of it, either in meaning or expres. sion, the same as has been related by the witnessIt sinks, in the first place, the questions put to the defendant, and the whole dialogue, which is the best clue to the business, and records, "that Mr. Frost came into the coffee-house and declared," an expression which he never used, and which wears the color of deliberation, “that he wished to see equality prevail in this country," another expression, which it is now agreed on all hands he never uttered, and which conveys a very different idea from saying, in answer to an impertinent or taunting question, "Oh yes, I am for es. Bullock, who did not appear to me to give his evidence unfairly-he read his paper as he wrote. But this is the very strength of my observation : Gentlemen, these distinctions, like all the dictates of sound policy, are as obvious founded in the to reason as they are salutary in nature of things. practice. What a mar writes that is criminal and pernicious, and what he disseminates when written, is conclusive of his purpose.equality." I impute nothing at all to Colonel He manifestly must have deliberated on what he wrote, and the distribution is also an act of deliberation. Intention in such cases is not, therefore, matter of legal proof, but of reasonable inference, unless the accused, by proof on his side, can rebut what reason must otherwise infer: since he who writes to others undoubtedly seeks to bring over other minds to assimilate with his own. So he who advisedly speaks to others upon momentous subjects, may be presumed to have the same intention. Yet so frail is memory-so imperfect are our natures-so dangerous would it be to place words, which, to use the language 14 The paper was as follows: "Percy coffeehouse, 6th of November, 1792. We, the undermen. tioned, do hereby certify that at about 10 o'clock this evening, Mr. John Frost came into this coffeeclare that he wished to see equality prevail in this room, and did then and in our presence openly decountry, and no King, in a loud and factious way: and upon being asked whether he meant that there should be no King in this country, he answered 'Yes.'". The paper was not signed. Auence of asso encies on this If Mr. Frost had gone into every coffee-house, from Charing Cross to the Exchange, Prevailing tend. lamenting the dangers of popular gov- subject, and ernment, reprobating the peevishness their danger. of opposition in Parliament, and wishing, in the most advised terms, that we could look up to the throne and its excellent ministers alone for quiet and comfortable government, do you think that we should have had an indictment? I ask pardon for the supposition; I can discover that you are laughing at me for its absurdity. Indeed, I might ask you whether it is not the notorious language of the highest men, in and out of Parliament, to justify the alienation of the popular part of the government from the spirit and principle of its trust and office, and to prognosticate the very ruin and downfall of England, from a free and uncorrupted representation of the great body of the people? I solemnly declare to you, that I think the whole of this system leads inevitably to the dangers we seek to avert. It divides the higher and the lower classes of the nation into adverse parties, instead of uniting and for suppose the case had not come for months to | suspected quarter, when it is pronounced by pertrial, the other witnesses (and honestly too) might sons enjoying every honor from the Crown, and have let their memories lean on the written evi- 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 confessed 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 tremblingFeraicious in prevailed to depart from the wisely 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 purpose of tution, under the pretext, or from the of what regards the once respected and awful prosecuting a Buch cas 9. zeal of preserving them, and which Commons of Great Britain? has been the parent of so many prosecutions, is an awful monument of human weakness. These associators to prosecute, who keep watch of late upon our words and upon our looks, are associated, it seems, to preserve our excellent Constitution from the contagion of France, where an arbitrary and tyrannous democracy, under the color of popular freedom, destroys all the securities and blessings of life. But how does it destroy them? How, but by the very means that these new partners of executive power would themselves employ, if we would let them—by inflict- | ing, from a mistaken and barbarous state necessity, the severest punishments for offenses never defined by the law-by inflicting them upon suspicion instead of evidence, and in the blind, furi- | ous, and indiscriminate zeal of persecution, instead of by the administration of a sober and impartial jurisprudence. Subtracting the horrors of invading armies which France can not help, what other mischief has she inflicted upon herself? From what has she suffered but from this undisciplined and cruel spirit of accusation and rash judgment? A spirit that will look at noth-compounding them into one harmonious whole. ing dispassionately, and which, though proceeding from a zeal and enthusiasm for the most part honest and sincere, is, nevertheless, as pernicious as the wicked fury of demons when it is loosened from the sober dominion of slow and deliberate justice. What is it that has lately united all hearts and voices in lamentation? What but these judicial executions, which we have a right to style murder, when we see the ax falling, and the prison closing upon the genuine expressions of the inoffensive heart-sometimes for private letters to friends, unconnected with conduct or intention sometimes for momentary exclamations in favor of royalty, or some other denomination of government different from that which is established. These are the miseries of France, the unhap-dation of all that we have to fear; yet, instead py attendants upon revolution; and united as we all are in deploring them, upon what principle of common sense shall we vex and terrify the subjects of our own country in the very bosom of peace, and disgust them with the government, which we wish them to cherish, by unusual, ritating, and degrading prosecutions? It embitters the people against authority, which, when they are made to feel and know is but their own security, they must, from the very nature of man, unite to support and cherish. I do not believe that there is any set of men to be named in England-I might say, that I do not know an individual who seriously wishes to touch the Crown, or any branch of our excellent Constitution; and when we hear peevish and disrespectful expressions concerning any of its functions, depend upon it, it proceeds from some practical variance between its theory and its practice. These variances are the fatal springs of disorder and disgust. They lost America, and in that unfortunate separation laid the foun of treading back our steps, we seek recovery in the system which brought us into peril. Let government in England always take care to make its administration correspond with the true spirit of our genuine Constitution, and nothing ir-will ever endanger it. Let it seek to maintain its corruptions by severity and coercion, and nei ther laws nor arms will support it. These are my sentiments; and I advise you, however unpopular they may be at this moment, to consider them before you repel them. Indeed, I am very sorry to say that we hear of late too much of the excellence of the British government, and feel but too little of its benefits. They, too, who pronounce its panegyrics, are those who alone prevent the entire public from acceding iem. The eulogium comes from a If the defendant, among others, has judged too lightly of the advantages of our government reform his errors by a beneficial experience of moments-that all his words and actions, even 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 dein 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 nations become affectionate to governments, or revolt against them. Men are neither to be talked nor written into the belief of happiness and security when they do not practically feel them, nor talked or written out of them when they are in the full enjoyment of their blessings: 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 of them. I know the privilege that belongs to the Attorney General to reply to all that has been said; but perhaps, as I have called no witnesses, he may think it a privilege to be waived. It is, however, pleasant to recollect, that if it should be exercised, even with his superior talents, hig honor and candor will guard it from abuse. The Attorney General having exercised his privilege of reply, Lord Kenyon summed up; and the jury, after a consultation of an hour and a half, returned a verdict of "Guilty." Mr. Frost was sentenced to be imprisoned in Newgate six months, to stand one hour in the pillory, and to be struck off the roll of attorneys, where by he was ruined for life. SPEECH 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 his 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 himself authorized to appear for the defense. Mr. Bingham, afterward the Earl of Lucan, had formed an early attachment for Lady Elizabeth Fauconberg, which was warmly reciprocated by the latter. They were engaged to be mar 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 sixteen months after their marriage; but her affections continued to be passionately fixed on Mr. Bingham (who had at first avoided her soci ety); 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 him of "the comfort and society of his 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 which 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 upon 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 him, 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 a jury, 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 hear oquence to be •he opposing counsel had Now, to show you how little disposed I am tc work upon you by any thing but by Statement of proof; to convince you how little de- the case sirous I am to practice the arts of speech as my only artillery in this cause, I will begin with a few plain dates, and, as you have pens in your hands. I will thank you to write them down. I shall begin with stating to you what my cause is, and shal. then prove it-not by myself, but by witnesses. The parties were married on the 24th of April 1789. The child that has been spok- Marriage of en of, and in terms which gave me great and birth of satisfaction, as the admitted son of the their child. the parties, and whom the noble person to whom he may be He has thought it right (partly in courtesy to me, None of the el- as I am willing to believe, and in part expected which for the purposes of his cause) that you should suppose you are to be adpredicted. dressed with eloquence which I never possessed, and which, if I did, I should be incapable at this moment of exerting; because the most eloquent man, in order to exert his eloquence, must have his mind free from embarrassment on the occasion on which he is to speakI am not in that condition. My learned friend has expressed himself as the friend of the plaintiff's family. He does not regard that family 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 relations. I know him and them, and because I Forbidden by know them, I regard them also: my the embarrass embarrassment, however, only arises the speaker. 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 its existence might have been referred to the defendant. On this subject, therefore, the plaintiff must be silent. He can not say the parental mind has been wrung; he can not say hereafter, "No SON OF MINE SUCCEEDING" he can say none of these things. This child was born on the 12th of August, 1791, and as Mr. Howard is admitted to be the author of its existence (which he must have been, if at all, in 1790), I have a right to say that, during all that interval, this gentle ing situation of Gentlemen, my embarrassment is abundantly ncreased, when I see present a noble person, aigh, very high in rank in this kingdom, but not higher in rank than he is in my estimation: I speak of the noble Duke of Norfolk, who most undoubtedly must feel not a little at being obliged to come here as a witness for the defendant in the cause of a plaintiff so nearly allied to himself. I am persuaded no man can have so little sensibility, as not to feel that a person in my sitnation must be greatly embarrassed in discuss-man could not have had the least reasonable cause ing a question of this nature before such an audience, and between such parties as I have described. posing counsel being under oath. elopement of complaint against Mr. Bingham. His jealousy must, of course, have begun after that period, 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 op would take care not to suffer argu-sel, nor any foundation for that parental consolam giving testi ment, or observation, or eloquence to tion which was brought forward in the very front mony without 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; I July, 1793; and I put it to his Lord- Time of Mrs wish my learned friend, at the moment he gave ship, that there is no manner of evi- Howard's 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 Error of the of 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 contingency 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 where 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 facts, indeed, they would have been) might have been proved by so many illustricus persons. as to divorce. What, then, remains in this cause? Gentle Macbeth. Act iii., Scene 2 lightful relations of social existence. While the curtains, therefore, are yet closed upon this bridal scene, your imaginations will naturally represent to you this charming woman endeavoring to conceal sensations which modesty forbids the sex, however enamored, too openly to reveal, wish. ing, beyond adequate expression, what she must not even attempt to express, and seemingly resisting what she burns to enjoy. men, there remains only this: In what manner, | pathies of their offspring, and all the sweet, de True point when you have heard my evidence (for at issue. this is a cause which, like all others, must stand upon evidence), the plaintiff shall be able to prove, what I have the noble judge's authority for saying he must prove, namely, the Loss of the comfort and society of his wife, by the seduction of the defendant. THAT is the very gist of the action. The loss of her affection, and of domestic happiness, are the only legal foundations of his complaint. Representa ing counsel. The lady's pre ment and loath | Now, before any thing can be lost, it must have In order, therefore, to examine this matter (and True state I shall support every syllable that I ut of facts. ter with the most precise and uncontrovertible proofs), I will begin with drawing up the curtains of this blessed marriage-bed, whose joys are supposed to have been nipped in the bud by the defendant's adulterous seduction. Nothing, certainly, is more delightful to the human fancy than the possession of a beautiful woman in the prime of health and youthful passion; it is beyond all doubt the highest enjoyment which God, in his benevolence, and for the wisest purposes, has bestowed upon his own image. I reverence, as I ought, that mysterious union of mind and body which, while it continues our species, is the source of all our affections; which builds up and dignifies the condition of human life; which binds the husband to the wife by ties more indissoluble than laws can possibly create, and which, by the reciprocal endearments arising from a mutual passion, a mutual interest, and a mutual honor, lays the foundation of that parental affection which dies in the brutes with the necessities of nature, but which reflects back again upon the human parents the unspeakable sym Gentlemen, this is no high coloring for the purposes of a cause; no words of an advocate can go beyond the plain, unadorned effect of the evidenco. I will prove to you that when she prepared to retire to her chamber she threw he desponding arms around the neck of her confidential attendant, and wept upon her as a crimI will prove to you that she met her bridegroom with sighs and "I tell thee, Howard, That duly took its turn, and was forgotter." Gentlemen, this was not the sudden burst of youthful disappointment, but the fixed and settled habit of a mind deserving of a happier fate I shall prove that she frequently spent her nights upon a couch, in her own apartments, dissolved in tears; that she frequently declared to her woman that she would rather go to Newgate than to Mr. Howard's bed; and it will appear, by his own confession, that for months subsequent to the marriage she obstinately refused him the privileges of a husband. Mr. Bingham is To all this, it will be said by the plaintiff's counsel (as it has, indeed, been hinted already), that disgust and aliena no sense these tion from her husband could not but be expected; but that it arose from her affection for Mr. Bingham. Be it so, gentlemen. I read ducer. |