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ily admit, thal it Mr. Binyham's acquaintance the way, and in the ardors of mutual love, ar.d in with the lady had commenced subsequent to the the simplicities of rural life, let them lay the founmarriage, the argument would be irresistible, and dation of a vigorous race of men, firm in their the criminal conclusion against him unanswera- bodies, and moral from early habits; and instead ble. But has Mr. Howard a right to instruct his of wasting their fortunes and their strength in the counsel to charge my honorable client with se- tasteless circles of debauchery, let them light up duction, when he himself was the seducer? My their magnificent and hospitable halls to the gen. learned friend deprecates the power of what he try and peasantry of the country, extending the terms my pathetic eloquence. Alas, gentlemen! consolations of wealth and influence to the poor: if I possessed it, the occasion forbids its exertion, Let them but do this; and, instead of those danbecause Mr. Bingham has only to defend himself, gerous and distracting divisions between the difand can not demand damages from Mr. Howard ferent ranks of life, and those jealousies of the for depriving him of what was his by a title su- multitude so often blindly painted as big with deperior to any law which man has a moral rightstruction, we should see our country as one large · to make. Mr. Howard was NEVER MARRIED! and harmonious family, which can never be acGod and nature forbid the bans of such a marriage. complished amid vice and corruption, by wars or Il, therefore, Mr. Bingham this day could have, treaties, by informations ex officio for libels, or by by me, addressed to you his wrongs in the char- any of the tricks and artifices of the state. acter of a plaintiff demanding reparation, what would to God this system had been followed in damages might I not have asked for him; and, the instance before us ! Surely the noble house without the aid of this imputed eloquence, what of Fauconberg needed no further il- Their applica damages might I not have expected ?
lustration ; nor the still nobler house lion to this case. I would have brought before you a noble youth, of Howard, with blood enough to have inoculated who had fixed his affections upon one of tho most half the kingdom. I desire to be understood to beautiful of her sex, and who enjoyed hers in re- make these observations as general moral reflecturn. I would have shown you their suitable tions, and not personally to the families in ques. condition ; I would have painted the expectation tion; least of all to the noble house of Norfolk, of an honorable union ; and would have conclud- the head of which is now present; since no man, ed by showing her to you in the arms of another, in my opinion, has more at heart the liberty of by the legal prostitution of parental choice in the the subject and the honor of our country. teeth of affection ; with child by a rival, and only Having shown the feeble expectation of hap reclaimed at last, after so cruel and so afflicting piness from this marriage, the next Norrirg done by a divorce, with her freshest charms despoiled, point to be considered is this : Did Mr.com.co and her very morals in a manner impeached, by Mr. Bingham take advantage of that alienation. asserting the purity and virtue of her original circumstance to increase the disunion ? I an. and spotless choice. Good God ! imagine my swer, No. I will prove to you that he conducted cient to be plaINTIFF, and what damages are himself with a moderation and restraint, and with you not prepared to give him ? and yet he is a command over his passions, which I consess I here as DEFENDANT, and damages are demanded did not expect to find, and which in young men against um Oh, monstrous conclusion ! is not to be expected. I shall prove to you, by
Gentlemen, considering my client as perfectly Mr. Greville, that, on this marriage taking place sase under these circumstances, I may spare a with the betrothed object of his assections, he moment to render this cause beneficial to the went away a desponding man. His health de
clined; he retired into the country to restore it; It involves in it an awful lesson; and more in- and it will appear that for months afterward he structive lessons are taught in courts of justice never saw this lady until by mere accident ho than the Church is able to inculcate. Morals met her. And then, so far was he from endeavor. come in the cold abstract from pulpits; but men ing to renew his connection with her, that she smart under them practically when we lawyers came home in tears, and said he frowned at her are the preachers.
as he passed. This I shall prove to you by the Let the aristocracy of England, which trem- evidence in the cause.
bles so much for itself, take heed to Gentlemen, that is not all. It will appear that, the aristocracy its own security. Let the nobles of when he returned to town, he took no manner of ing out of ouch England, if they mean to preserve notice of her; and that her unhappiness was be
that pre-eminence which, in some yond all power of expression. How, indeed, shape or other, must exist in every social com- could it be otherwise, after the account I have munity, take care to support it by aiming at that given you of the marriage? I shall prove, bewhich is creative, and alone creative, of real su- sides, by a gentleman who married one of the periority. Instead of matching themselves to daughters of a person to whom this country is supply wealth, to be again idly squandered in deeply indebted for his eminent and meritorious debauching excesses, or to round the quarters of service (Marquis Cornwallis), that, from her uta family shield; instead of continuing their names ter reluctance to her husband, although in every and honors in cold and alienated embraces, amid respect honorable and correct in his manners and the enervating rounds of shallow dissipation, let
This was during the progress of those oppressive them live as their fathers of old lived before them. state trials in which Mr. Erskine was so largely ed let them marry as affection and prudence lead gaged.
a divorce, but
Mr. Howard at bis wife's con duct
behavior, he was not allowed even the p.ivileges / union, was interrupted by a previous act of his of a husband, for months after the marriage. own. In that hour of separation, I am persuaded This I mentioned to you before, and only now he never considered Mr. Bingham as an object repeat it in the statement of the proc. s. Noth- of resentment or reproach. He was the author ing better, indeed, could be expected. Who can of his own misfortunes, and I can conceive him control the will of a mismatched, disappointed to have exclaimed, in the language of the poet, woman? Who can restrain or direct her pas- as they parted, sions ? I beg leave to assure Mr. Howard (and
“Elizabeth never loved me. thope he will believe me when I say it), that I Let no man, after me, a woman wed lbringa think his conduct toward this lady was just such Whose heart he knows he has not; though sbe as might have been expected from a husband A mine of gold, a kingdom, for ber dowry. who saw himself to be the object of disgust to the For let her seem, like the night's shadowy queer. woman he had chosen for his wife, and it is with Cold and contemplative-he can not trust her: this view only that I shall call a gentleman to say The worst of sorrows, and the worst of shames.”
She may, she will, bring shame and sorrow on bim; bow Mr. Howard spoke of this supposed, but, in my mind, impossible object of his adoration. You have, therefore, before you, gentlemrn, How, indeed, is it possible to adore a woman two young men of sashion, both of the sait reces when you know her affections are riveted to an- noble families, and in the flower of other ? It is unnatural! A man may have that youth: the proceedings, though not the moment dat appetite which is common to the brutes, and too collusive, can not possibly be vindic- gos. indelicate to be described; but he can never re- tive; they are indispensably preliminary in the tain an affection which is returned with detesta- dissolution of an inauspicious marriage, which lion. Lady Elizabeth, I understand, was, at one never should have existed. Mr. Howard mas, Esasperation of time, going out in a phaeton : "There then, profit by a useful though an unpleasant ex
she goes,” said Mr. Howard; “God perience, and be happier with a woman whose
damn her—I wish she may break her mind he may find disengaged; while the parents neck; I should take care how I got another." of the rising generation, taking warning from the This may seem unseeling behavior; but in Mr. lesson which the business of the day so forcibly Howard's situation, gentlemen, it was the most teaches, may avert from their families, and the natural thing in the world, for they cordially hated public, that bitterness of disunion, which, while one another. At last, however, the period arrived human nature continues to be itsell, will ever be when this scene of discord became insupportable, produced to the end of time, from similar conand nothing could exceed the generosity and junctures. manly feeling of the noble person (the Duke of Gentlemen, I have endeavored so to conduct Norfolk), whose name I have been obliged to use this cause as to offend no man. " I have in the course of this cause, in his interference to guarded against every expression which damage effect that separation which is falsely imputed to could inflict unnecessary pain; and, in merely Mr. Bingham. He felt so much commiseration doing so, I know that I have not only for this unhappy lady, that he wrote to her in the served my client's interests, but truly represedimost affecting style. I believe I have got a leted his honorable and manly disposition. As the ter from his Grace to Lady Elizabeth, dated case before you can no be considered by any Sunderland, July the 27th, that is, three days reasonable man as an occasion for damages, I after their separation ; but before he knew it had might here properly conclude. Yet, that I may actually taken place : it was written in conse- omit nothing which might apply to any possi. quence of one received from Mr. Howard upon ble view of the subject, I will close by remind. the subject. Among other things he says, “I ing you that my client is a member of a numersincerely feel for you.” Now if the Duke had ous family; that, though Lord Lucan's fortune not known at that time that Mr. Bingham had is considerable, bis rank calls for a correspond. her earliest and legitimate affections, she could ing equipage and expense; he has other chilnot have been an object of that pity which she re- dren-one already married to an illustrious noceived. She was, indeed, an object of the sin- bleman, another yet to be married to some man cerest pity; and the sum and substance of this who must be happy indeed is he shall know her mighty seduction will turn out to be no more value. Mr. Bingham, therefore, is a man of no than this, that she was affectionately received by fortune; but the heir only of, I trust, a very disMr. Bingham after the final period of volunta- tant expectation. Under all these circumstanry separation. At four o'clock this miserable ces, it is but fair to believe that Mr. Howard
couple had parted by consent, and comes here for the reasons I have assigned, and
the chaise was not ordered till she not to take money out of the pocket of Mr. might be considered as a single woman by the Bingham to put into his own. You will, there. abandonment of her husband. Had this separa- fore, consider, gentlemen, whether it would be tion been legal and formal, I should have applied creditable for you to offer what it would be dis to his Lordship, upon the most unquestionable graceful for Mr. Howard to receive. authorities, to nonsuit the plaintiff; for this action boing founded upon the loss of the wife's socie- So completely had Mr. Erskine borne away ty, it must necessarily fall to the ground if it ap- the minds of the jury by this speech, that as pears that the soci -tý, thongh not the marriage some of them afterward stated, they had tr-solved
At least tha
to bring in a verdict for the defendant, with macy to be renewed which led to such deploraheavy damages to be paid him by the plaintiff ! ble consequences—that he was liable to render And even when the judge reminded them, in his a compensation to the plaintiff under these circharge, that no blame could be isputed to Mr. cumstances and that they could not be justified Howard, who was left in total ignorance of the in affixing a brand upon the latter by giving previous engagement—that his wife's vows at the trifling damages-still they gave him but five altar ought to have been respected by Mr. Bing- hundred pounds, when the sum usually awarded, hom, not only at first, but to the end—that the at that time, between persons of a wealthy con. difondan: ough: ruver to have allowed an inti- dition, was from ten to fifteen thousand pounds.
OF MÁ ERSKINE IN BEHALF OF THOMAS HARDY WHEN INDICTED FOR HIGH TREASON, DELIV.
ERED BEFORE THE COURT OF KING'S BENCH, NOVEMBER 1, 1794.
INTRODUCTION. Thomas HARDY was a shoemaker in London, and secretary of the “ London Corresponding Society," whose professed object was to promote parliamentary reform-having branch societies in most parts of the kingdom. Rash and inflammatory speeches were undoubtedly made at the meetings of these assojations, and many things contained in their letters among themselves, and their addresses to the public, were highly objectionable. "The grand object of these associations,” says Mr. Belsham, who probably was well acquainted with their designs, “was unquestionably to effect a reform in Parliament upon the visionary, if not pernicious principles of the Duke of Richmond-universal suffrage and annual election. They contained a considerable proportion of concealed republicans, converts to the novel and extravagant doctrine of Paine; and there can be no doubt but that these people loped, and perhaps in the height of their enthusiasm believed, that a radical reform in Parliament upon democratic principles would eventu. ally lead to the establishment of a democratic government." Still, it is generally understood that the bulk of the members were attached to the Constitution.
The government became alarmed at their proceedings, and instead of prosecating for a misdemeanor those who could be proved to have used seditious language, they unhappily determined, at the instance of Lord Loughborough, to indict Hardy, Horne Tooke, and ten others for high treason.
The act laid bold of was that of proposing a National Convention, avowedly for the purpose of promoting parliamentary reform; but the government maintained that the real design was to use the conven. tion, if assembled, as an instrument of changing the government. The indictment, therefore, alleged,
1. That Hardy and the others, in calling this convention, did conspire to excite insurrection, subvert and alter the Legislature, depose the King, and " bring and put our said Lord the King to death.”
2. The overt acts charged were attempting to induce persons, through the press, and by letters and speeches, to send delegates to a convention called for the above-mentioned purposes; and also the prep. aration of a few pikes in some populous places, which, as the parties concerned maintained, were provided as a defense against illegal attacks.
The case was opened on Tuesday, the 28th of October, 1794, by a speech from the Attorney General, Sir John Scott (afterward Lord Eldon), of nine hours in length. Never before had a trial for treason occupied more than one day; but in this instance the court sat during an entire week until after midnight, com. wencing every morning at eight o'clock. The Crown occupied the whole time, till after midnight Friday evening, with evidence against the prisoner; and Mr. Erskine then begged an adjournment to a somewhat later hour than usual the next day, that he might have time to look over his papers and make ready for the defense. To this the court objected as an improper delay of the jury, and proposed that the prisoner's witnesses should be examined while Mr. Erskine was preparing his reply. The following dialogue then epsued: Erskine. “I should be sorry to put the jury to any inconvenience; I do not shrink from my duty, but I assure your Lordship that during the week I have been nearly without patural rest, and that my physical strength is quite exhausted." Eyre, C. J. “What is it you ask for?" Erskine. "As I stated before, the Attorney General found it necessary to consume nine hours; I shall not consume half that time if I have an opportunity of doing that which I humbly request of the court." Eyre, C. J. “We have offered you an expedient, neither of you say whether you accept it ?" Mr. Gibbs, the other counsel for the prisoner, spurned the proposal, and Mr. Erskine requested an adjournment until twelve the next day, as essential to the fair defense of one who was on trial for bis life. The Chief Justice, with apparent re. luctance, agreed to eleven. Erskine. “I should be glad if your Lordships would allow another hour." Eyre, C. J. “ I feel so much for the situation of the jury, that, on their account, I can not think of it." Erskine. "My Lord, I never was placed in such a situation in the whole course of my practice before ; however, I will try to do my duty.” Jury. “My Lord, we are extremely willing to allow Mr. Erskine another bour, if your Lordship thinks proper.” Eyre, C. J. “ As the jury ask it for you, I will not refus.
"Cicered by this good omen," says Lord Campbell, “Erskine went home, and, after a short repose arranged the materials of a speech which will last forever. He began at two o'clock on Saturday after noon, and spoke seven hours—a period that seemed very short to his hearers, and in reality was so, con sidering the subjects he had to deal with, and the constitutional learning, powerful reasoning, the wit, and the eloquence which he condensed into it. This wonderful performance must be studied as a whole by all who are capable of understanding its merits; for the enunciation of principles is so connected with the inferences to be drawn from the evidence, and there is such an artful, though seemingly natural sau. cession of topics, to call for the pity and the indignation of the jory-to captivate their affections and to convince their understandings—that the full beauty of detached passages can not be properly appreciated."
1 banks to the
stowed or, the Constitution are
And impartial justice.
SPEECH, &c. GENTLEMEN OF THE Jury,—Before I proceed | have occasion to reflect a little upon its probable
to the performance of the momentous causes ; but, waiting a season for such reflections, jury for the duty which is at length cast upon me, let us first consider what the evil is which has
I desire, in the first place, to return been so feelingly lamented as having fallen ou my thanks to the judges for the indulgence I have that unhappy country. It is, that under the doreceived in the opportunity of addressing you at minion of a barbarous state necessity, every prothis later period of the day than the ordinary sit- tection of law is abrogated and destroyed. It ting of the court, when I have had the refresh- is, that no man can say, under such a system of ment which nature but too much required, and a alarm and terror, that his lise, his liberty, his repfew hours' retirement, to arrange a little in my utation, or any one human blessing, is secure to mind that immense matter, the result of which I him for a moment. It is, that if accused of sedmust now endeavor to lay before you. I have to eralism, or moderatism, or incivism, or of whatthank you, also, gentlemen, for the very conde-ever else the changing fashions and factions of scending and obliging manner in which you so the day shall have listed up into high treason readily consented to this accommodation. The against the state, he must see his friends, his tourt could only speak for itself, referring me to family, and the light of heaven no more: the acyou, whose rest and comfort had been so long in- cusation and the sentence being the same, fol. terrupted. I shall always remember your kind- lowing one another as the thunder pursues the
flash. Such has been the state of England Before I advance to the regular consideration such is the state of France; and how, then, since The praises be of this great cause, either as it re- they are introduced to you for application, ought
gards the evidence or the law, I they, in reason and sobriety, to be applied ? II merited only as wish first to put aside all that I find this prosecution has been commenced (as is as.
in the speech of my learned friend, serted) to avert from Great Britain the calanii.
the Attorney General, which is ei- ties incident to civil confusion, leading in its is: ther collateral to the merits, or in which I can sues to the deplorable condition of France, I call agree with him. First, then, IN THE NAME OF upon you, gentlemen, to avert such calamity from THE PRISONER, and speaking his sentiments, falling upon my client, and, through his side, upon which are well known to be my own also, I con- yourselves and upon our country. Let not bim cur in the eulogium which you have heard upon suffer under vague expositions of tyrannical laws, the Constitution of our wise forefathers. But be more tyrannically executed. Let not him be hur. fore this eulogium can have any just or useful ried away to predoomed execution, from an honapplication, we ought to reflect upon what it is est enthusiasm for the public safety. I ask for which entitles this Constitution to the praise so him a trial by this applauded Constitution of our justly bestowed upon it. To say nothing at country.. I call upon you to administer the law present of its most essential excellence, or rath- to him, according to our own wholesome insti. er the very soul of it, viz., the share the people tutions, by its strict and rigid letter. However ought to have in their government, by a pure rep- you may eventually disapprove of any part of his resentation, for the assertion of which the pris- conduct, or, viewing it through a false medium, oner stands arraigned as a traitor before you— may think it even wicked, I claim for him, as a what is it that distinguishes the government of subject of England, that the law shall decide upon England from the most despotic monarchies ? its criminal denomination. I protest, in his name, What but the security which the subject enjoys against all appeals to speculations concerning in a trial and judgment by his equals ; rendered consequences, when the law commands us to lock doubly secure as being part of a system of law only to intentions. If the state be threatened which no expediency can warp, and which no with evils, let Parliament administer a prospect power can abuse with impunity.
ive remedy, but let the prisoner hold his lise un The Attorney General's second preliminary der the law.' The evila of the observation I equally agree to. I
· Nothing could be more admirable than the turn anxiously wish with him that you given in this exordiom to the remarks of the At. Jak senele injury may bear in memory the anarchy torney General. The prisoner and his eleven com of private right.' which is desolating France. Be- panions were in great danger of being sacrificed to fore I sit down, I may, perhaps, in my turn, the dread of French principles. The jury, thoug!
French P.evolu. tion a warning not to stretch the
the natural death of the King
Gentlemen, I ask this solemnly of the court, | power, and government thereof." This is the whose justice I am persuaded will afford it to first and great leading overt act in the indict.
I ask it more emphatically of you, the ment. And you observe that it is not charged jury, who are called upon your oaths to make a as being treason substantively and in itself, but true deliverance of your countryman from this only as it is committed in pursuance of the treacharge. But lastly, and chiefly, I implore it of son against the King's person, antecedently im. Him in whose hands are all the issues of life puted. For the charge is not, that the prisoners whose humane and merciful eye expands itself conspired to assemble a convention to depose the over all the transactions of mankind ; at whose King, but that they conspired and compassed his cominand nations rise and fall, and are regener- death, and that, in order to accomplish that wickated; without whom not a sparrow falleth to the ed and detestable purpose (i. e., in order to fulground-I implore it of God himself, that He will fill the traitorous intention of the mind against fill your minds with the spirit of justice and of his life), they conspired to assemble a convention truth, so that you may be able to find your way with a view to depose him. The same observthrough the labyrinth of matter laid before you— ation applies alike to all the other counts or overt a labyrinth in which no man's lise was ever be acts upon the record, which manifestly, indeed, fore involved in the annals of British trial, nor, lean upon the establishment of the first for their indeed, in the whole history of human justice or support. They charge the publication of differ. injustice.
ent writings, and the provision of arms, not as Gentlemen, the first thing in order is to look distinct offenses, but as acts done to excite to the The indict. at the indictment itself; of the whole of assembling of the same convention, and to main
which, or of some integral part, the tain it when assembled; but, above all, and which prisoner must be found guilty, or be wholly dis- must never be forgotten, because they also unicharged from guilt.
formly charge these diferent acts as committed The indictment charges that the prisoners did in fulfillment of the same traitorous purpose, to Crime alleged. maliciously and traitorously conspire, BRING THE KING TO DEATH. You will, thereto bring about compass, and imagine, "to bring and fore, have three distinct matters for considera
put our Lord the King to death.” And tion upon this trial; First. What share (if any)
that to fulfill, perfect, and bring to the prisoner had, in concert with others, in aseffect their most evil and wicked purpose (that sembling any convention, or meeting of subjects is to say, of bringing and putting the King to within this kingdom; Second. What were the acts death)," they met, conspired, consulted, and to be done by this convention when assembled; agreed among themselves, and other false trait-'and, Third. What was the view, purpose, and ors unknown, to cause and procure a convention intention of those who projected its existence to be assembled within the kingdom, with intent" This third consideration, indeed, comprehends, or (I am reading the very words of the indictment, rather precedes and swallows up the other two. which I entreat you to follow in the notes you Because, before it can be material to decide upon have been taking with such honest perseverance) the views of the convention, as pointed to the sub-"wilh intent, and in order that the persons so version of the rule and order of the King's politassembled at such convention, should and might ical authority (even if such views could be astraitorously, and in defiance of the authority, and cribed to it, and brought home even personally to against the will of Parliament, subvert and alter, the prisoner), we shall have to examine whether and cause to be subverted and altered, the Legis- that criminal conspiracy against the established lature, rule, and government of the country, and order of the community was hatched and engento depose the King from the royal state, title, dered by a wicked contemplation to destroy the
natural life and person of the King, and whether gentlemen of high intelligence and respectability, the acts charged and established by the evidence were zealous adherents of the ministry, and com. were done in pursuance and in fulfillment of the mitted to the support of their measures as members same traitorous purpose. of the Loyal Associations of the metropolis. Most
Gentlemen, this view of the subject is not only of the evideuce for the Crown had been previously correct, but self-evident. The subpublished, and undoubtedly read by the jury ander version of the King's political govern- that this elde circumstances calculated to produce the worst im. pressions on their minds. The subject had been ment, and all conspiracies to subvert brought before Parliament by Mr. Pitt. The case it, are crimes of great magnitude and enormity, had been prejudged; a conspiracy had been charged which the law is open to punish; but neither of on the prisoner and his companions by an act of Par.iament; and the Habeas Corpus Act had act. · Here Mr. Erskine takes his first stand, and gives nally been suspended through fear of this conspira- as the foundation of the entire legal argument which cy! Under these circumstances, it seemed hardly follows. There were two kinds of treason-one the possible for any jury to give the prisoner a fair hear-compassing the King's death," and the other “levy. ing. This accounts for the extreme anxiety mani. ing war to depose him." Now the indictment had fested by Mr. Erskine throughout the whole of this charged the former on the prisoner; and although it speech. The lives of eleven others besides the pris. had also mentioned the latter, this became subordaoner were suspended on the issue of this one argu nale to the former; so that the thing to be proved ment. These considerations will induce the read against the prisoners was, that in the alleged con er to follow Mr. Erskine, with unwonted interest, spiracy they directly intended to destroy the natural through all the windings of this intricate case. life of the King.