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flabby part of your character.” There was too much truth in the remark. Erskine could bear any thing but contempt. He recovered himself, however, at a later period of life, and made quite a number of very able and eloquent speeches; in fact, he would have stood high as a parliamentary orator, if he had not so completely outshone himself by the brilliancy of his efforts in Westminster Hall.
“As an advocate in the forum,” says Lord Campbell, “ I hold him to be without an equal in ancient or modern times." What is rare in one of so brilliant a genius, he had no less power with the court than with the jury. It was remarked of him, as of Scarlett, that “ he had invented a machine by the secret use of which, in court, he could make the head of a judge nod assent to his propositions ; whereas his rivals, who tried to pirate it, always made the same head move from side to side." He was certainly not a profound lawyer, as the result of original investigation ; his short period of study rendered this impossible. But he had the power of availing himself more completely than almost any man that ever lived, of the knowledge collected for his use by others. His speech on the Rights of Juries, in the case of the Dean of St. Asaph, is universally admitted to show a depth of learning which would have done honor to Selden or Hale ;” and so completely had he thrown his mind into the case, and made himself master of what black-letter lawyers spent months in searching out as the materials of his brief, that he poured forth all this learning, in his argument before the court, with the freshness and precision of one who had spent his life in such researches. He always, indeed, grasped a cause so firmly, that he never forgot a principle or a decision, an analogy or a fact which made for his client, while he showed infinite dexterity in avoiding the difficulties of his case, and turning to his own advantage the unexpected disclosures which sometimes come out in the progress of a trial. Nothing could be more incorrect than the idea of some, that Erskine owed his success chiefly to the warmth and brilliancy of his genius. The dryest special pleader never managed a cause with greater caution. Even in his Indian Chief, in the case of Stockdale (p. 696), a passage which verges more toward poetry than any thing in our eloquence, he was still, as a writer in the Edinburgh Review remarks, “ feeling his way every step he took.” His boldness was equal to his caution. In his defense of the liberty of the press, and of the rights of the subject when assailed by the doctrine of constructive treason, he had some of the severest conflicts with the court which any advocate was ever called to maintain. When the jury, in the case of the Dean of St. Asaph, brought in their verdict, “Guilty of publishing only,” which would have the effect of clearing the defendant, Justice Buller, who presided, acting on the principle then held by the court, considered it beyond their province to make this addition, and determined they should withdraw it. Erskine, on the other hand, seized upon the word the moment it was uttered, and demanded to have it recorded. After some sparring between him and the court, he put the question to the foreman, “Is the word only to stand as a part of the verdict ?" “Certainly," was the reply. “Then I insist it shall be recorded,” says Erskine. “ The verdict,” says Buller, “must be misunderstood : let me understand the jury.” “ The jury,” replied Erskine,“ do understand their verdict.” Buller. “Sir, I will not be interrupted.” Erskine. “I stand here as an advocate for a brother citizen, and I desire the word only may be recorded.” Buller. SIT DOWN, SIR.
REMEMBER YOUR DUTY, OR I SHALL BE OBLIGED TO PROCEED IN ANOTHER MANNER." Erskine. " Your LORDSHIP MAY PROCEED IN WHAT MANNER YOU THINK FIT; I KNOW MY DUTY AS WELL AS YOUR LORDSHIP KNOWS YOURS. I SHALL NOT ALTER MY CONDUCT.” The spirit of the judge sunk before the firmness of the advocate; no attempt was made to carry the threat into execution.
It was this mixture of boldness and caution, it was the keen sagacity and severe logic of Erskine, which laid the foundation of his unrivaled power over a jury. It
was owing to these qualities that, when he threw into his argument all the strength of his ardent feelings, and all that beauty and richness of illustration which his glowing fancy supplied, no one ever suspected him of wishing to play upon their passions ; the appeal was still so entirely to their intellect, that the jury gave him their sympathies without hesitation or reserve. And if he seemed to digress for a moment from the line of his reasoning, as he sometimes did for the sake of relieving the minds of his auditors, he still showed the same sagacity in turning even this to the furtherance of his argument, for he always brought back with him from these excursions some weighty truth which he had gathered by the way, and which served to give a new and startling force to the urgency of his appeal. To these qualities he added a good-humored cheerfulness in the most difficult cases, which put him on the best terms with the court and jury. They wished him to succeed, even when they had made up their minds that he must fail. It is easy to see the advantage he thus gained. Sometimes, under his management, the worst cause seemed wholly to change its aspect; as in the case of Hadfield (given below), in which Kenyon, who presided, showed himself at first to be strongly prejudiced against the prisoner, but had his views so entirely changed that, at the close of Erskine's argument, he took the extraordinary step of recommending to the Attorney General not to proceed in the case, but to allow an immediate acquittal. Only one trait more will be added to his character as an advocate. He was uniformly kind to the younger members of the profession. He was the last man on earth to injure or depress a rival. When Sir James Mackintosh made his celebrated defense in the case of Peltier-a case which he might naturally expect, from his superior age and devotion to a free press, would have been committed to his care—he showed no mean jealousy; he attended the trial, and, before retiring to bed that night, addressed a note to the young advocate expressing his warmest admiration of the defense, as one of the most splendid monuments of genius, learning, and eloquence."
Nine of Mr. Erskine's ablest arguments are given in this collection. It is unnecessary here to dwell upon their merits or the circumstances out of which they sprung : these are detailed at large in the Introductions which precede the speeches. The writer would only urge upon the general student in oratory not to pass over, as belonging exclusively to the lawyer, the four great arguments of Erskine in the cases of Lord George Gordon, of the Dean of St. Asaph, of Hardy, and of Hadfield. The technical terms are briefly explained in notes, so that no embarrassment need arise from this cause. As specimens of acute and powerful reasoning, enlivened occasionally by glowing eloquence, they are among the finest efforts of genius in our language. Nothing can be more useful to our young orators of any profession, than to make themselves perfectly acquainted with these admirable specimens of reasoning, whatever toil it may cost them. Such productions, as Johnson said of a similar class of writings, are bark and steel to the mind."
Mr. Erskine, as already mentioned, came into Parliament in 1783, as the friend and supporter of Mr. Fox. He adhered to him in all his reverses, and at last shared in his success. When Lord Grenville and Mr. Fox came into power in 1806, Erskine was appointed Lord Chancellor, thus verifying a prediction which he made twenty-seven years before, just after he was called to the bar, and which (for he was inclined to be superstitious) he probably ascribed to some supernatural agency. “ Willie,” said he to his friend William Adam, after a long silence, as they were riding together over a blasted heath between Lewes and Guilford, in 1779, “ Willie, the time will come when I shall be Lord Chancellor, and the Star of the Thistle shall blaze on my bosom!" His dream was now accomplished. But the office of Lord Chancellor was one to which he was very little suited. All his practice had lain in another direction ; he was wholly unacquainted with the laws of property, so essential to the decision of cases in chancery; and “the doctrines which prevail in the courts of equity," as Sir Samuel Romilly remarked, “were to him almost like the laws of a foreign country.” He had always thrown contempt upon proceedings in these courts; and was sometimes taunted with his pathetic appeal to Lord Kenyon, when recommending that his client should apply to chancery for redress : “Would your Lordship send a dog you loved there ?" Still, he endeavored to gain what information he could on the subject at his period of life, and said humorously to Romilly, who excelled in this knowledge of these proceedings, “ You must make me a chancellor now, that I may afterward make you one." Though he added no honor to the office, he did not disgrace it. None of his decisions except one were ever called in question, and that was affirmed by the House of Lords. He presided with dignity, and when he retired from office, as he did at the end of thirteen months, Sir Arthur Pigot addressed him in the name of the bar, expressing “ their grateful sense of the kindness shown them while he presided.”
The remainder of Erskine's life was saddened by poverty, and unworthy of his early fame. The usages of the profession forbade his returning to the bar; the pension on which he retired was small; the property he had gained was wasted in speculations; and his early sense of character was unhappily lost, to some extent, in the general wreck of his fortunes. He died on a visit to Scotland, at Almondell, the residence of his sister-in-law, on the 17th of November, 1823, in the seventy-third year of his age.
The oratory of Erskine owed much of its impressiveness to his admirable delivery. He was of the medium height, with a slender but finely-turned figure, animated and graceful in gesture, with a voice somewhat shrill but beautifully modulated, a countenance beaming with emotion, and an eye of piercing keenness and power. Juries,” in the words of Lord Brougham, "have declared that they felt it impossible to remove their looks from him, when he had riveted, and, as it were, fascinated them by his first glance; and it used to be a common remark of men who observed his motions, that they resembled those of a blood-horse; as light, as limber, as much betokening strength and speed, as free from all gross superfluity or encumbrance."
His style was chaste, forcible, and harmonious, a model of graceful variety, without the slightest mannerism or straining after effect. His rhythmus was beautiful; that of the passage containing his Indian Chief is surpassed by nothing of the kind in our language. His sentences were sometimes too long-a fault which arose from the closeness and continuity of his thought.
The exordium with which Erskine introduced a speech was always natural, ingenious, and highly appropriate; none of our orators have equaled him in this respect. The arrangement of the matter which followed was highly felicitous; and he had this peculiarity, which gave great unity and force to his arguments, that "he proposed,” in the words of another, " a great leading principle, to which all his efforts were referable and subsidiary-which ran through the whole of his address, governing and elucidating every part. As the principle was a true one, whatever might be its application to that particular case, it gave to his whole speech an air of honesty and sincerity which it was difficult to resist.”
The Rev. Dr. Emmons, one of the acutest reasoners among the divines of New England, was accustomed (as the writer is directly informed) to read the Massachusetts Reports as they came out, for the pleasure and benefit they afforded him as specimens of powerful reasoning. Would not our young divines find similar benefit from the study of great legal arguments like these of Erskine ?
SPEECH OF MR. ERSKINE IN BEHALF OF LORD GEORGE GORDON WHEN INDICTED FOR HIGH TREASON,
DELIVERED BEFORE THE COURT OF THE KING'S BENCH, FEBRUARY 5, 1781.
INTRODUCTION. LORD GEORGE GORDON, a member of the House of Commons, was a young Scottish nobleman of weak intellect and enthusiastic feelings. He had been chosen president of the Protestant Association, whose object was to procure the repeal of Sir George Saville's bill in favor of the Catholics. In this capacity, be directed the association to meet bim in St. George's Fields, and proceed thence to the Parliament House with a petition for the repeal of the bill. Accordingly, about forty thousand persons of the middling classes assembled on Friday, the 2d of June, 1780, and, after forming a procession, moved forward till they blocked ap all the avenues to the House of Commons. They had no arms of any kind, and were most of them orderly in their conduct, though individuals among them insulted some members of both Houses who were passing into the building, requiring them to put blue cockades on their hats, and to cry “No Popery!"
Lord George presented the petition, but the House refused to consider it at that time, by a vote of 192 to 6. The multitude now became disorderly, and after the House adjourned, bodies of men proceeded to demolish the Catholic chapels at the residences of the foreign ministers. From this moment the whole affair changed its character. Desperate men, many of them thieves and robbers, took the lead. Not only were Catholic chapels set on fire, but the London prisons were broken open and destroyed; thirty-six fires were blazing at one time during the night; the town was for some days completely in the power of the multitude ; Lord Mansfield's house was destroyed; the breweries and distilleries were broken open, and the mob became infuriated with liquor; and for a period there was reason to apprehend that the whole of the metropolis might be made one general scene of conflagration. The military were at last called in from the country, and, after a severe conflict, the mob was put down; but not until nearly five hundred persons had been killed or wounded, exclusive of those who perished from the effects of intoxication.
The government had been taken by surprise: no adequate provision was made to guard against violence; and, as the riots went on, all authority for a time seemed to be paralyzed or extinct. When order was at last restored, the magistrates, as is common with those who have neglected their duty, endeavored to throw the blame on others—they resolved to make Lord George Gordon their scapegoat. He was accordingly arraigned for high treason ; and such was the excitement of the public mind, such the eagerness to have some one punished, that he was in imminent danger of being made the victim of public resentment. It was happy for him that, in addition to Mr. (afterward Lord) Kenyon, his senior counsel, a man of soand mind, but wholly destitute of eloquence, he had chosen Mr. Erskine, as a Scotchman, to aid in his defense. It was the means probably of saving his life.
The Attorney General opened the case in behalf of the Crown, contending (1.) That the prisoner, in assembling the multitude round the two Houses of Parliament, was guilty of high treason, if he did so with a view to overawe and intimidate the Legislature, and enforce his purposes by nambers and violence (a doctrine fully confirmed by the court); and (2.), That the overt acts proved might be fairly construed into sach a design, and were the only evidence by which a traitorous intention, in such a case, could be shown. When the evidence for the Crown was received, Mr. Kenyon addressed the jury in behalf of Lord George Gordon, but in a manner so inefficient that, when be sat down, “ the friends of Lord George were in an agony of apprehension.” According to the usual practice, Mr. Erskine should now have followed, before the examination of his client's witnesses. But he adroitly changed the order, claiming as a privilege of the prisoner (for which he adduced a precedent) to bave the evidence in his favor received at once. His object was, by meeting the evidence of the Crown with that of Lord George's witnesses as early as possible, to open a way for being heard with more favor by the jury, and of commenting upon the evidence on both sides as compared together. The Rev. Mr. Middleton, a member of the Protestant Association, swore that he had watched the prisoner's conduct, and that he appeared to be always actuated by the greatest loyalty to the King and attachment to the Constitution—that his speeches at the meetings of the association, at Coachmakers' Hall, never contained an expression tending directly or indirectly to a repeal of the bill by force-that he desired the people not even to carry stiaks in the procession, and begged that riotous persons might be delivered to the constables. Mr. Evans, an eminent surgeon, declared that he saw Lord George Gordon in the center of one of the divisions in St. George's Fields, and that it appeared from his conduct and expressions that he wished and endeavored to prevent all disorder.
1 The reader has already seen Mr. Burke's admirable exposition of the reasons for Sir George Saville's bill, in his speech at Bristol, pages 299-310.
This was confirmed by others; and it was proved by decisive evidence that the bulk of the people roand the Parliament House and in the lobby were not members of the Association, but idlers, vagabonds, and pickpockets, who had thrust themselves in; so that the persons who insulted the members were of a totally different class from those who formed the original procession. The Earl of Lonsdale swore that he took the prisoner home from the House in his carriage ; that great multitudes surrounded Lord George, inquiring the fate of the petition ; that he answered it was uncertain, and earnestly entreated them to retire to their homes and be quiet.
The evidence was not closed until after midnight, when Mr. Erskine addressed the jury in the follow. ing speech. Lord Campbell says of it, “Regularly trained to the profession of the law-having practiced thirty years at the bar-having been Attorney General above seven years—having been present at many trials for high treason, and having conducted several myself, I again peruse, with increased astonishment and delight, the speech delivered on this occasion by him, who had recently thrown aside the scarlet uniform of a subaltern in the army, which he had substituted for the blue jacket of a midshipman, thrust upon him while he was a school-boy. Here I find not only great acuteness, powerful reasoning, enthusiastic zeal, and burning eloquence, but the most masterly view ever given of the English law of high treason, the foundation of all our liberties."—Lives of the Chancellors, vol. vi., page 408.
Reasons for dis cussing the law
to the speaker.
SPEECH, &c. GENTLEMEN OF THE Jury,—Mr. Kenyon hav- , experience, to the highest rank in his profession,
ing informed the court that we pro- has spoken of with that distrust and diffidence dence in favor pose to call no other witnesses, it is which becomes every Christian in a cause of of the prisoner. now my duty to address myself to you blood. If Mr. Kenyon has such feelings, think as counsel for the noble prisoner at the bar, the what mine must be. Alas! gentlemen, who am whole evidence being closed. I use the word I? A young man of little experience, unused to closed, because it certainly is not finished, since the bar of criminal courts, and sinking under the I have been obliged to leave the seat in which I dreadful consciousness of my defects. I have, sat, to disentangle myself from the volumes of however, this consolation, that no ignorance nor men's names, which lay there under my feet, inattention on my part can possibly prevent you whose testimony, had it been necessary for the from seeing, under the direction of the Judges, defense, would have confirmed all the facts that that the Crown has established no case of treason. are already in evidence before you.'
Gentlemen, I did expect that the Attorney Gentlemen, I feel myself entitled to expect, General, in opening a great and sol- Transition: Indulgence due both from you and from the court, the emn state prosecution, would have at
greatest indulgence and attention. I least indulged the advocates for the of treason. am, indeed, a greater object of your compassion prisoner with his notions on the law, as applied than even my noble friend whom I am defending to the case before you, in less general terms. He rests secure in conscious innocence, and in the It is very common, indeed, in little civil actions, well-placed assurance that it can suffer no stain in to make such obscure introductions by way of your hands. Not so with me. I stand before you trap. But in criminal cases it is unusual and a troubled, I am afraid a guilty man, in having unbecoming ; because the right of the Crown to presumed to accept of the awsul task which I am reply, even where no witnesses are called by the now called upon to perform-a task which my prisoner, gives it thereby the advantage of relearned friend who spoke before me, though he plying, without having given scope for observahas justly risen, by extraordinary capacity and tions on the principles of the opening, with which
the reply must be consistent. 1 Mr. Erskine shows great dexterity in turning a One observation he has, however, made on the slight circumstance at the opening of his speech, subject, in the truth of which I heart- Greatness of into a means of impressing the jury from the first ily concur, viz., that the crime of which the crime. with a sense of his client's innocence. He had sat the noble person at your bar stands accused, is thus far in the front row, with large files of papers the very highest and most atrocious that a memat his feet, but he now stepped back to obtain great: ber of civil life can possibly commit; because it er freedom of movement; and this he represents as done to escape from “ the volumes of men's names" is not, like all other crimes, merely an injury to who stood ready to confirm the evidence in favor of society from the breach of some of its reciprocal Lord Gordon! So the next paragraph, though in form relations, but is an attempt utterly to dissolve and a plea for indulgence to himself as a young speaker, destroy society altogether. is in fact the strongest possible assumption of the prisoner's innocence, since the guilt referred to con- of our laws so strongly and eminently Hence it is most
In nothing, therefore, is the wisdom and justice sisted in his venturing to endanger, by his inexpe: manifested as in the rigid, accurate, exactly defned. rience, the cause of one who stood secure himself " in conscious innocence." There is hardly any 2 The reader can not fail to remark how admirathing for which Mr. Erskine deserves more to be bly one thought grows out of another in the transistudied, than his thus making every circumstance tion, all of them important and all preparing the mind conspire to produce the desired impression. All is so to be deeply interested in the discussion of the sub easy and natural, that men never think of it as the ject to which it leads, the nature of high treason. result of design or premeditation, and here lies his The same characteristic runs throughout the wholo con te skill as an advocate.