Читать книгу Sketches of Reforms and Reformers, of Great Britain and Ireland - Henry B. Stanton - Страница 9

Table of Contents

Constructive Treason—The Law of Libel and Sedition—The Dean of St. Asaph—The Rights of Juries—Erskine—Fox—Pitt.

I took occasion in the last chapter to speak at some length of the trials of Tooke, Hardy, and others, for high treason, in 1794, and of the successful attack then made by Mr. Erskine on the doctrine of constructive treason. Down to the period of these trials, the English law of treason was infamous. Among other things, treason was defined to be waging war against the King, or compassing and imagining his death, or the overthrow of his Government. The law evidently contemplated the doing of some act, designed and adapted to accomplish these ends. But the construction of the courts had subverted this principle, and declared the mere utterance of words high treason. In the reign of Edward IV, a citizen was executed for saying "he would make his son heir of the crown;" meaning, as was supposed, that he would make him the heir of his inn, called "the Crown." Another, whose favorite buck the King had wantonly killed, was executed for saying, "he wished the buck, horns and all, in the bowels of the man who counseled the King to kill it." The court gravely held, that as the King had killed it of his own accord, and so was his own counselor, this declaration was imagining the King's death, and therefore treason! So it had been held, that using words tending to overawe Parliament, and procure the repeal of a law, was levying war on the King, and therefore treasonable. At length the courts yielded to the doctrine that there must be some overt act to constitute the crime. But they also held that, reducing words to writing was an overt act, even though they were never read or printed! Peachum, a clergyman, was convicted of high treason for passages found in a sermon which had never been preached. The immortal Algernon Sidney was executed, and his blood attainted, for some unpublished papers found in his closet, containing merely speculative opinions in favor of a republican form of government. It was in allusion to this judicial murder by the infamous Jeffries, and to the fact that the record of the conviction had been destroyed, that Erskine, on the trial of Hardy, uttered the splendid anathema against "those who took from the files the sentence against Sidney, which should have been left on record to all ages, that it might arise and blacken in the sight, like the handwriting on the wall before the Eastern tyrant, to deter from outrages upon justice." It has already been said that this peerless lawyer exploded these dangerous doctrines, and made it safe for Englishmen to speak and write freely against the King and Government, without exposure to a conviction for treason.

But this is not the only salutary legal reform for which England is indebted to his exertions. Pernicious as is the existing law of CRIMINAL PROSECUTIONS FOR LIBELS AND SEDITIOUS WRITINGS in that country, it was vastly worse till his strong arguments and scathing appeals had shaken it to its foundations. A glance at the law. Any publication imputing bad motives to King or Minister; or charging any branch of Government with corruption, or a wish to infringe the liberties of the People; or which cast ridicule upon the Established Church; and any writing, printing, or speaking, which tended to excite the People to hatred or contempt of the Government, or to change the laws in an improper manner, &c., were seditious libels, for which fine, imprisonment, the pillory, &c., might be imposed. Nor was the truth of the libel any defense. Admirable snares, these, to entangle unwary reformers, and catch game for the royal household! And these bad laws were worse administered. The juries had no power in their administration—the only check in the hands of the People. The court withheld from the jury the question whether a writing was libelous or seditious, and permitted them only to decide whether the prisoner had published it. In a word, if the jury found that he published, they must convict; and then the judge growled out the sentence. These trials were ready weapons for State prosecution in the hands of a tyrannical King and Ministry, with pliant judges at their beck; and in the latter half of the last century they were used without stint or mercy. They struck down Wilkes, Tooke, Woodfall, Muir, Palmer, Holt, Cartwright, and other liberals, for publications and speeches in vindication of the People, which, at this day, would be held harmless even in England. Some were heavily fined, others imprisoned or transported, others set on the pillory, or cropped and branded, their houses broken open and searched, their wives and daughters insulted, their private papers rifled, their printing presses seized, their goods confiscated, their names cast out as evil, and they might regard their lot as fortunate if their prospects for life were not utterly ruined. The treatment of Muir and Palmer, in 1793, was barbarous. Muir was a respectable barrister, and Palmer a clergyman of eminent literary attainments. They had merely addressed meetings and associations for Parliamentary reform in Glasgow and Edinburgh, and reports of one or two of their speeches had been printed. Muir was sentenced to transportation for fourteen years, and Palmer for seven. They were shipped off to Botany Bay with a cargo of common felons! Several other persons, for attending a Reform Convention in Edinburgh the same year, shared a like fate. These are trials which sunshine politicians of the liberal school never contemplate, except to draw from them materials for rounding off fine periods about freedom and the rights of man. But they endear the sufferers to the struggling masses of their own time; and, in after years, when the sons of the persecutors garnish their tombs, those who then endure like trials swear by their memories and conjure with their names.

The times of which I write were prolific of these State prosecutions. Mr. Erskine was the ready counsel of the proscribed reformers then, as Mr. Brougham was at a later period. His great effort on these trials was to convince the court that the juries had the right to decide upon the character of the publication in making up their verdicts; or, in legal phrase, that they were "judges both of law and fact." In this effort, he had many a fierce conflict with the judges, when, with his usual courage, he braved their rebukes and challenged the execution of their hinted threats to commit him for contempt. He always argued this point fully to the court, in the presence of the jury; and such was his mastery over the reason and the feelings, that he sometimes prevented a conviction when he could not obtain an acquittal. It was in an affair of this sort that he had a quarrel with Mr. Justice Buller, a judge who coupled double the imperiousness of Mansfield with half his talents, and whose frown, glowering out from under his huge wig, has silenced many a barrister of more than common nerve. The respectable Dean of St. Asaph, who breathed the mountain air of Wales, published a clever political tract, under the guise of a dialogue between King George and a farmer. Erskine went down to defend him. Buller presided at the trial. Erskine argued his favorite topic with more than his accustomed ability. The jury listened with absorbing attention; the judge with impatient interruptions. He charged furiously against the Dean, and told the jury, if they believed he published the tract, they must render a general verdict of guilty. The words of reason and power of the great barrister, and his piercing eyes, which riveted everything within their gaze, went with them to their room. They returned a verdict in these words: "Guilty of publishing only." The astonished judge ordered them out again, with directions to render a general verdict of guilty. Erskine interposed, and insisted upon their right to render such a verdict as they had. The judge replied tartly, and the jury retired. Again they came in with the same verdict. The judge reprimanded them, while Erskine insisted that their verdict should be recorded. Buller retorted, explained his law to the refractory panel, and sent them out. The third time they appeared with the same verdict. The judge grew furious, and said, unless they rendered a general verdict, he should order the clerk to enter it "guilty." Erskine protested in strong terms. Buller ordered him to sit down. Erskine said he would not sit down, nor would he allow the court to record a verdict of guilty against his client, when the jury had rendered no such verdict. Buller hinted at commitment. Erskine defied him. The jury were frightened, and, in their panic, assented to a general verdict of guilty.[2] Erskine excepted, and carried the case to the full bench. But the day of triumph was at hand. So clearly had he in his great arguments exposed the iniquity of the rule, (if, indeed, it was law at all,) and so pertinaciously had he contested it on the trial of the Dean, that Parliament passed a declaratory act soon after, (thus admitting that Erskine was right,) giving jurors, in these prosecutions, the power to render a verdict upon the whole offense charged, i. e., making them "judges of the law as well as the fact."[3] I need not say that, after this, prosecutions for seditious libels became less potent and frequent weapons in the hands of royal and ministerial persecutors, and reformers breathed freer.

It does the heart good to contemplate talents like Erskine's devoted to such purposes. To see the foremost lawyer of his time, in the midst of wide-spread aristocratic clamor, and despite the fulminations of kings and ministers and judges, take the side of humble men, who are denounced as incendiaries, agrarians, levelers, French Jacobins, traitors, and infidels, plotting to murder their sovereign, upheave his throne, and prostrate the altars of the church, (and these are but a tithe of the catalogue,) and for years perform prodigies of labor for poor clients and poorer pay, thus blocking up the avenues to preferment in his cherished profession, and all for the love he bears the common cause! Such a spectacle should go somewhat to blunt the edge of those taunts so constantly aimed at a profession which he adored and adorned, and which, in every struggle for human rights, has furnished leaders to the popular party among the bravest of the brave. The law, like every other profession, has its scum and its vermin, and yields its share of dishonest men. But they are dishonest not because they are lawyers, but because they are scoundrels, and would have been so had they chosen to be merchants, physicians, or horse-jockies. When reproaching the whole legal fraternity as a "pack of licensed swindlers," it might be well to remember that the most conspicuous rebels and martyrs of English freedom, in the olden times, were lawyers—that Erskine, Emmet, Romilly, Mackintosh, O'Connell, and Brougham, of later and milder days, were lawyers; and that Jefferson, Adams, Otis, Sherman, Henry, and Hamilton, with many other bold spirits who thundered and lightened during the storm of the American revolution, were lawyers.

But we must leave Mr. Erskine by saying, that he possessed ability and learning to maintain the boldest positions; eloquence for the most thrilling appeals; imagination to sustain the loftiest flights. He was graceful in action, melodious in elocution, and had an eye of whose fascinating power jurors were often heard to speak. He was a wit and a logician—a lawyer and a reformer—a man, cast in the noblest mold of his species.

Mr. Erskine was powerfully sustained in his efforts for law reform by the great liberal leader in the House of Commons. Charles James Fox deserves a conspicuous place among the early Reformers of England. Entering Parliament in 1768, when just turned twenty-one, he rallied under the banner of Mr. Burke, then the chief debater on the Whig side, whose lead he followed through the doubtful contest on American questions; and when victory, and peace, and independence, crowned their efforts, the chief resigned the standard of opposition to the hands of his younger and more robust lieutenant. Fox is called "the disciple of Burke," and, after their unnatural estrangement, he gratefully said, "I have learnt more from Burke alone than from all other men and authors." He remained in the Commons till his death, in 1806; and though hampered by aristocratic connections and the leadership of his party, his generous nature and warm heart, through nearly forty years of Parliamentary life carried his great talents to the liberal side. He headed the forlorn hope of English freedom during the panic immediately following the French revolution, and in the darkest and stormiest nights of that gloomy period, his voice sounded clear and firm above the tempest, hurling defiance at his foes, and bidding the few friends of man and constitutional liberty who stood around him to be of good cheer, for the day of their redemption was drawing on. His speech against the stamp act, the taxation of the colonies, the American war, the test act, the suspension of the habeas corpus, the treason and sedition bills, the slave trade; and in favor of Parliamentary reform, religious toleration, Catholic emancipation, the rights of juries, and of peace, contain volumes of liberal principles which endear his name to the friends of humanity in both hemispheres. As Erskine was the first advocate that ever stood at the English bar, so Fox was the first debater that ever appeared in its Commons. Burke wrote of him, after their separation: "I knew him when he was nineteen; since which, he has risen to be the most brilliant and accomplished debater the world ever saw." His argumentative powers were of the highest order, and his wit, his invective, and his appeals to the judgment and feelings unrivaled. In the partisan warfare of extemporaneous debate, he bore down on his antagonists with an energy which, when fully roused, bordered on ferocity. But it was the ferocity of impassioned logic and intense reasoning. Not content with once going over the ground in controversy, he traveled it again and again, unfolding new arguments and adding additional facts, till his searching and vigorous eloquence had discovered and demolished every objection that lay in his track. The very embodiment of the reasoning element in man, he saw through his subject with rapid glances, grappled sturdily with all its strong points, despised mere ornaments, rejected all bewildering flights of the imagination, and shunned excursions into collateral fields which skirted his line of argument. In these latter respects he was totally unlike his great master. As his reasoning powers were cast in the most colossal mold, so his heart was of the finest and noblest quality. Mackintosh has justly said, that "he united in a most remarkable degree the seemingly repugnant characters of the mildest of men and the most vehement of orators." His appeals to magnanimity, to generosity, to integrity, to justice, to mercy, thrilled the soul of Freedom, while the tide of consuming lava which he poured on hypocrisy, meanness, dissimulation, cruelty, and oppression, made the grovelers at the footstool of power hide with fear and shame. He was a statesman of the broadest and most liberal views. His capacious mind was stored with political knowledge; he had deeply studied the institutions of ancient and modern States; and no man better understood the general and constitutional history of his own country, nor the delicate machinery which regulated its complicated foreign and domestic affairs. As bold as a lion, he never cowered before the King, his ministers, or his minions; but gloried in being the mouthpiece of out-door Reformers, whose radical principles and humble connections prevented their admission within the Parliamentary walls. He repeated the coarse opinions of Cartwright and his companions, in a place whose doors they were forbidden to darken, but in language worthy of the classic scion of Holland House. He was of invaluable service to the radical party, in gaining them favor with the aristocratic and learned Whigs, because he could throw over their principles the shield of argument, adorn them with the grace of scholarship, and dignify them with the luster of birth and station. In this regard his conduct might be profitably studied by his professed admirers on this side of the Atlantic.

Mr. Fox was totally unlike his great rival. Pitt was stately, taciturn, and of an austere temper. Fox was easy, social, and of a kindly disposition. Pitt was tall and grave, and, entering the House carefully dressed, walked proudly to the head of the Treasury bench, and took his seat as dignified and dumb as a statue. Fox was burly and jovial, entered the House in a slouched hat and with a careless air, and, as he approached the Opposition benches, had a nod for this learned city member, and a joke for that wealthy knight of the shire, and sat down, as much at ease as if he were lounging in the back parlor of a country inn. Pitt, as the adage runs, could "speak a King's speech off-hand," so consecutive were his sentences; and his round, smooth periods delighted the aristocracy of all parties. Fox made the Lords of the Treasury quail as he declaimed in piercing tones against ministerial corruption, while his friends shouted "hear! hear!" and applauded till the House shook. Pitt's sentences were pompous and sonorous, and often "their sound revealed their own hollowness." Fox uttered sturdy Anglo-Saxon sense; every word pregnant with meaning. Pitt was a thorough business man, and relied for success in debate upon careful preparation. Fox despised the drudgery of the office, and relied upon his intuitive perceptions and his robust strength. Pitt was the greater Secretary—Fox the greater Commoner. Pitt's oratory was like the frozen stalactites and pyramids which glitter around Niagara in mid-winter, stately, clear, and cold. Fox's like the vehement waters which sweep over its brink, and roar and boil in the abyss below. Pitt, in his great efforts, only erected himself the more proudly, and uttered more full Johnsonian sentences, sprinkling his dignified but monotonous "state-paper style" with pungent sarcasms, speaking as one having authority, and commanding that it might stand fast. Fox on such occasions reasoned from first principles, denouncing where he could not persuade, and reeling under his great thoughts, until his excited feelings rocked him, like the ocean in a storm. Pitt displayed the most rhetoric, and his mellow voice charmed, like the notes of an organ. Fox displayed the most argument, and his shrill tones pierced like arrows. Pitt had an icy taste; Fox a fiery logic. Pitt had art; Fox nature. Pitt was dignified, cool, cautious; Fox manly, generous, brave. Pitt had a mind; Fox a soul. Pitt was a majestic automaton; Fox a living man. Pitt was the Minister of the King; Fox the Champion of the People. Both were the early advocates of Parliamentary reform; but Pitt retreated, while Fox advanced; and both joined in denouncing and abolishing the horrors of the middle passage. Both died the same year, and they sleep side by side in Westminster Abbey, their dust mingling with that of their mutual friend Wilberforce; while over their tombs watches with eagle eye and extended arm the molded form of Chatham.