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broken, interrupted, disjointed words, without | retired to bed, where he lay unconscious that context or connection-uttered by the speaker ruffians were ruining bim by their disorders in in agitation and heat-heard, by those who relate the night--that on Monday he published an adthem to you, in the midst of tumult and confu- vertisement, reviling the authors of the riots; sion-and even those words, mutilated as they and, as the Protestant cause had been wickedly are, in direct opposition to, and inconsistent with made the pretext for them, solemnly enjoined all repeated and earnest declarations delivered at who wished well to it to be obedient to the laws the very same time and on the very same occa- (nor has the Crown even attempted to prove sion, related to you by a much greater number that he had either given, or that he afterward of persons, and absolutely incompatible with the gave secret instructions in opposition to that whole tenor of his conduct. Which of us all, public admonition) that he afterward begged gentlemen, would be safe, standing at the bar an audience to receive the King's commandsof God or man, if we were not to be judged by that he waited on the ministers—that he attend. the regular current of our lives and conversa ed his duty in Parliament—and when the multitions, but by detached and unguarded expres- tude (among whom there was not a man of the sions, picked out by malice, and recorded, with associated Protestants) again assembled on the out context or circumstances, against us? Yet Tuesday, under pretense of the Protestant cause, such is the only evidence on which the Crown he offered his services, and read a resolution of asks you to dip your hands, and to stain your the House to them, accompanied with every exconsciences, in the innocent blood of the noble postulation which a zeal for peace could possibly and unfortunate youth who stands before you— inspire—that he afterward, in pursuance of the on the single evidence of the words you have King's direction, attended the magistrates in heard from their witnesses (for of what but words their duty; honestly and honorably exerting all have you heard ?), which, even if they had stood his powers to quell the fury of the multitude; a uncontroverted by the proofs that have swallowed conduct which, to the dishonor of the Crown, has them up, or unexplained by circumstances which been scandalously turned against him, by crimdestroy their malignity, could not, at the very inating him with protections granted publicly in worst, amount in law to more than a breach of the coach of the Sheriff of London, whom he was the Act against tumultuous petitioning (if such assisting in his office of magistracy; although an act still exists) ; since the worst malice of protections of a similar nature were, to the his enemies has not been able to bring up one knowledge of the whole Privy Council, granted single witness to say that he ever directed, coun- by Mr. Fisher himself, who now stands in my tenanced, or approved rebellious sorce against the presence unaccused and unreproved, but who, if Legislature of this country. It is, therefore, a the Crown that summoned him durst have called matter of astonishment to me that men can keep him, would have dispersed to their confusion the the natural color in their cheeks when they ask slightest imputation of guilt. for human life, even on the Crown's original What, then, has produced this trial for high case, though the prisoner had made no desense. treason, or given it, when produced, cause of thie

But will they still continue to ask for it after the seriousness and solemnity it wears ? prosecution. what they have heard? I will just remind the What but the inversion of all justice, by judging Solicitor General, before he begins his reply, from consequences, instead of from causes and dewhat matter he has to encounter. He has to signs ? What but the artsul manner in which the encounter this : That the going up in a body Crown has endeavored to blend the petitioning was not even originated by Lord George, but by in a body, and the zeal with which an animated others in his absence-that when proposed by disposition conducted it, with the melancholy him officially as chairman, it was adopted by the crimes that followed ? crimes which the shamewhole Association, and consequently was their ful indolence of our magistrates—which the toact as much as his-that it was adopted, not in tal extinction of all police and government sufa conclave, but with open doors, and the resolu- fered to be committed in broad day, and in the tion published to all the world — that it was delirium of drunkenness, by an unarmed banditti, known, of course, to the ministers and magis- without a head—without plan or object-and trates of the country, who did not even signify without a refuge from the instant gripe of justo him, or to any body else, its illegality or dan- tice: a banditti with whom the associated Protger—that decency and peace were enjoined and estants and their president had no manner of commanded—that the regularity of the proces- connection, and whose cause they overturned, sion, and those badges of distinction, which are dishonored, and ruined. now cruelly turned into the charge of an hostile How unchristian, then, is it to attempt, witharray against him, were expressly and publicly out evidence, to infect the imaginations of men directed for the preservation of peace and the who are sworn, dispassionately and disinterestprevention of tumult—that while the House was edly, to try the trivial offense of assembling a deliberating, he repeatedly entreated them to be- multitude with a petition to-repeal a law (which have with decency and peace, and to retire to has happened so often in all our memories), by their houses, though he knew not that he was blending it with the fatal catastrophe, on which speaking to the enemies of his cause—that when every man's mind may be supposed to retain they at last dispersed, no man thought or imag- some degree of irritation ! O fie! O fe! Is ined that treason had been committed that he the intellectual seat of justice to be thus impious

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Peroration.

ly shaken? Are your benevolent propensities found who could even attempt to save his own to be thus disappointed and abused ? Do they life by the plausible promise of giving evidence wish you, while you are listening to the evidence, to-day. to connect it with unforeseen consequences, in What can overturn such a proof as this? spite of reason and truth? Is it their object to Surely a good man might, without superstition, hang the millstone of prejudice around his inno- believe that such a union of events was somecent neck to sink him ? If there be such men, thing more than natural, and that a Divine Provmay Heaven forgive them for the attempt, and idence was watchful for the protection of innoinspire you with fortitude and wisdom to dis- cence and truth. charge your duty with calm, steady, and reflect- I may now, therefore, relieve you from the ing minds !

pain of hearing me any longer, and be myself Gentlemen, I have no manner of doubt that relieved from speaking on a subject which agi

you will.39 'I am sure you can not but tates and distresses me. Since Lord George

see, notwithstanding my great inability, Gordon stands clear of every hostile act or purincreased by a perturbation of mind ( arising, pose against the Legislature of his country, or thank God! from no dishonest cause), that there the properties of his fellow-subjects—since the has been not only no evidence on the part of the whole tenor of his conduct repels the belief of Crown to fix the guilt of the late commotions the traitorous intention charged by the indictupon the prisoner, but that, on the contrary, we ment-my task is finished. I shall make no have been able to resist the probability, I might address to your passions. I will not remind you almost say the possibility of the charge, not only of the long and rigorous imprisonment he has by living witnesses, whom we only ceased to call suffered; I will not speak to you of his great because the trial would never have ended, but by youth, of his illustrious birth, and of his uniformthe evidence of all the blood that has paid the ly animated and generous zeal in Parliament for forfeit of that guilt already; an evidence that I the Constitution of his country. Such topics will take upon me to say is the strongest and might be useful in the balance of a doubtful case; most unanswerable which the combination of yet, even then, I should have trusted to the honnatural events ever brought together since the est hearts of Englishmen to have felt them withbeginning of the world for the deliverance of the out excitation. At present, the plain and rigid oppressed : since, in the late numerous trials for rules of justice and truth are sufficient to entitle acts of violence and depredation, though con- me to your verdict. ducted by the ablest servants of the Crown, with a laudable eye to the investigation of the subject The jury, after being charged by Lord Manswhich now engages us, no one fact appeared field, withdrew at three o'clock in the morning, which showed any plan, any object, any leader; and speedily returned with the verdict — Not since, out of forty-four thousand persons who Guilty. The decision was satisfactory, in a signed the petition of the Protestants, not one high degree, to all reflecting men. Even those was to be found among those who were convict- who considered his conduct as deeply criminal, ed, tried, or even apprehended on suspicion ; and felt with Dr. Johnson : "I am glad Lord George since, out of all the felons who were let loose Gordon has escaped, rather than a precedent from prisons, and who assisted in the destruction should be established of hanging a man for conof our property, not a single wretch was to be structive treason.”

SPEECH OF MR. ERSKINE ON THE RIGHTS OF JURIES, DELIVERED BEFORE THE COURT OF KING'S BENCH,

IN THE CASE OF THE DEAN OF ASAPH, NOVEMBER 15, 1784.

INTRODUCTION. SIR WILLIAM JONES, just before he went to India in 1783, wrote a small tract in favor of Parliamentary Reform, entitled a "Dialogue between a Gentleman and a Farmer," which was published by his brother-in-law Dr. Shipley, dean of St. Asaph, with an advertisement stating his reasons for so doing. Though harmless in its tendency, it gave umbrage to some high Tories of the neighborhood, and the Dean was indicted, at their instance, for printing a seditious libel. The trial came on at Shrewsbury, August 6th, 1784, and Mr. Bearcroft, counsel for the prosecution, satisfied that no English jary would ever find it a libel (as the court, in fact, afterward declared there was nothing in it illegal) took the

29 This peroration is remarkable for the quiet and of a perfect understanding between him and the subdued tone which reigns throughout it. A less jury, that the verdict of acquittal was already made skillful advocate would have closed with a powerful up in their minds, so that any appeal to their feelappeal to the feelings of the jury. But Mr. Erskine, ings would be wholly out of place. His allusion to with that quick instinct which enabled him to read the providence of God as watching over the innothe emotions of men in their countenances, saw that cent, beautifully coincides with this sentiment; and his cause was gained. He chose, therefore, to in his closing sentence he does not ask a decision throw over his concluding remarks the appearance / in bis favor, but takes it as a matter of course.

ground that this was no question for them to decide—that they were bound to find the defendant guilty if they believed he bad caused it to be published, and that it was of and concerning the King and his government"-leaving him to move the court in arrest of judgment, or to bring a writ of error if its seo. timents and language were claimed to be innocent. Mr. Erskine, for the defendant, argued the question to the jury on the supposition of their having a right to judge whether it was a libel or not. But Mr. Justice Buller charged the jury in accordance with the claim of Mr. Bearcroft, telling them, as Lord Mansfield had done in the case of Woodfall, that they must bring in the defendant guilty if they were satisfied he had published the tract, leaving the question whether it was libelous or not for the court to decide. The jury, however, gave their verdict “ guilty of publishing only,” which would have been tantamount to an acquittal. But the Judge having objected strongly to this finding, the jury withdrew, and returned with a verdict, "Gailty of publishing, but whether a libel or not we do not find."

In Michaelmas term following, November 8th, 1784, Mr. Erskine moved for a new trial on the ground of misdirection on the part of the judge. A rule nisi having been granted, the case came on for argument on the 15th, when he made the following speech. Lord Campbell says, “ Erskine's addresses to the court in moving, and afterward in supporting his rule, display beyond all comparison the most perfect union of argument and eloquence ever exbibited in Westminster Hall. He laid down five propositions most logically framed and connected—which, if true, completely established his case—and he supported them with a depth of learning which would bave done honor to Selden or Hale, while he was animated by an enthusiasm which was peculiarly bis own. Though appealing to judges who heard bim with aversion or indifference, he was as spirited as if the decision had depended on a favorable jury, whose feelings were entirely under his control. So thoroughly bad he mastered the subject, and so clear did he make it, tbat he captivated alike old black-letter lawyers and statesmen of taste and refinement." - Lives of the Lord Chancellors, vol. vi., 433–4.

The following are the five propositions mentioned by Lord Campbell, which had been previously delivered to the judges in nearly the same terms:

I. “That when a bill of indictment is found, or an information filed, charging any crime or misdemeanor known to the law of England, and the party accused pats himself opon the country by pleading the general issue-Not Guilty ; the jury are GENERALLY charged with his deliverance from that CRIME, and not SPECIALLY from the fact or facts, in the commission of which the indictment or information charges the crime to consist ; much less from any single fact, to the exclusion of others charged upon the same record."

II. “That no act, which the law in its general theory holds to be crimiual constitutes in itself a crime, abstracted from the mischievous intention of the actor ; and that the intention (even where it becomes a simple inference of legal reason from a fact established) may and ought to be collected by the JURY, with the Judge's assistance; because the act charged, though established as a fact in a trial on the gen. eral issue, does not necessarily and unavoidably establish the criminal intention by any abstract conciasion of law--the establishment of the fact being still no more than full evidence of the crime, but not the crime itself; unless the jury render it so themselves, by referring it voluntarily to the court by special verdict."

III. "That the case of a libel forms no legal exception to the general principles which govern the trial of all other crimes; that the argument for the difference, namely, because the whole charge (in the prosecation for a libel] always appears on the record—is false in fact, and that, even if true, it would form no substantial difference in law."

IV. “That where a writing indicted as a libel neither contains, nor is averred by the indictment to contain, any slander of an individual (so as to fall within those rules of law which protect personal reputation), but whose criminality is charged to consist (as in the present instance) in its tendency to stir up general disconteut-the trial of such an indictment neither involves, nor can in its obvious nature involve, any abstract question of law for the judgment of a court, but must wholly depend upon the judgment of the jury on the tendency of the writing itself to produce such consequences, when connected with all the circumstances which attended its publication."

V. “ That in all cases where the mischievous intention (which is agreed to be the essence of the crime) can not be collected by simple inference from the fact charged, because the defendant goes into evidence to rebut sach inference, the intention then becomes a pure, unmixed question of fact, for the considera. tion of the jury.”

This speech has a peculiar interest for the lawyer, but the general reader will be amply repaid for giving it the closest attention. The young orator of any profession will find the study of it one of the best means of mental discipline, and will rise from the perusal of it with increased admiration of Lord Erskine as a logician and an orator.

SPEECH, &c. I am now to have the honor to address myself rule for a new trial. Much of my argument, acto your Lordship in support of the rule granted cording to his notion, points another way; whethto me by the court upon Monday last; which, er its direction be true, or its force adequate to as Mr. Bearcrost has truly said, and seemed to the object, it is now my business to show. mark the observation with peculiar emphasis, is a In rising to speak at this time, I feel all the

Restatement

ositions.

tent

force.

Concession of:

advantage conferred by the reply over those sition to the plain understanding of the world, Necessity of a whose arguments are to be answered; neither do nor were intended to conder er tale om but I feel a disadvantage likewise, vey any other sentiment than this, of these prop

which must suggest itself to every in- namely, that in all cases where the telligent mind. In following the objections of law either directs or permits a person accused so many learned persons, offered under different of a crime to throw himself upon a jury for dearrangements upon a subject so complicated and liverance, by pleading generally that he is not comprehensive, there is much danger of being guilty; the jury, thus legally appealed to, may drawn from that method and order which can deliver him from the accusation by a general alone fasten conviction upon unwilling minds, or verdict of acquittal founded (as in common sense drive them from the shelter which ingenuity it evidently must be) upon an INVESTIGATION as never fails to find in the labyrinth of a desultory general and comprehensive as the charge itself discourse. The sense of that danger, and my own from which it is a general deliverance. inability to struggle against it, led me originally Having said this, I freely confess to the court to deliver up to the court certain written and that I am much at a loss for any fur. The recent lim maturely considered PROPOSITIONS, from the es- ther illustration of my subject, be- rights of juries tablishment of which I resolved not to depart, cause I can not find any matter by firepartime nor to be removed, either in substance or in or- which it might be further illustrated, usage. der, in any stage of the proceedings, and by so clear or so indisputable, either in fact or in which I must therefore this day unquestionably law, as the very proposition itself upon which stand or fall.

this trial has been brought into question. LookPursuing this system, I am vulnerable two ing back upon the ancient Constitution, and exOnly two pag ways, and in two ways only. Either amining with painful research the original jurisaible model of it must be shown that my propositions dictions of the country, I am utterly at a loss to

are not valid in law, or, admitting imagine from what sources these novel limitatheir validity, that the learned judge's charge to tions of the rights of juries are derived. Even the jury at Shrewsbury was not repugnant to the bar is not yet trained to the discipline of them : there can be no other possible objections maintaining them. My learned friend Mr. Bearto my application for a new trial. My duty to crost' solemnly abjures them. He repeats to-day day is, therefore, obvious and simple : it is, first, what he avowed at the trial, and is even jealous to re-maintain those propositions, and then to of the imputation of having meant less than he show that the charge delivered to the jury at expressed. For, when speaking this Shrewsbury was founded upon the absolute de- morning of the right of the jury to opposing coun: nial and reprobation of them.

judge of the whole charge, your LordI. I begin, therefore, by saying again, in my ship corrected his expression, by telling him he First Prop. own original words, That when a bill meant the power, and not the right; he caught

of indictment is found, or an informa- instantly at your words, disavowed your explation filed, charging any crime or misdemeanor nation, and, with a consistency which does him known to the law of England, and the party ac-honor, declared his adherence to his original ad. cused puts himself upon the country by pleading mission in its full and obvious extent." I did the general issue-not guilty; the jury are GEN- not mean," said he, “merely to acknowledge ERALLY charged with his deliverance from that that the jury have the power, for their power crime, and not sPECIALLY from the fact or facts, nobody ever doubted. If a judge was to tell in the commission of which the indictment or in- them they had it not, they would only have to formation charges the crime to consist ; much laugh at him, and convince him of his error, by less from any single fact, to the exclusion of oth- finding a GENERAL verdict, which must be reers charged upon the same record.

corded : I meant, therefore, to consider it as a II. That no act, which the law in its general right, as an important privilege, and of great

theory holds to be criminal, constitutes value to the Constitution.” Thus Mr. Bearcroft Proposition, in itself a crime, abstracted from the and I are perfectly agreed; I never contended mischievous intention of the actor; and that the for more than he has voluntarily conceded. I intention (even where it becomes a simple infer- have now his express authority for repeating, in ence of legal reasons from a fact or facts estab- my own former words, that the jury have not lished), may and ought to be collected by the merely the power to acquit, upon a view of the JURY, with the judge's assistance; because the whole charge, without control or punishment, act charged, though established as a fact in a trial and without the possibility of their acquittal beon the general issue, does not necessarily and ing annulled by any other authority; but that unavoidably establish the criminal intention by they have a constitutional, legal right to do it; any abstract conclusion of the law: the estab- a right fit to be exercised; and intended, by the lishment of the fact being still no more than full wise founders of the government, to be a protecevidence of the crime, but not the crime itself; tion to the lives and liberties of Englishmen, unless the jury render it so themselves, by refer- against the encroachments and perversions of ring it voluntarily to the court by special verdict. authority in the hands of fixed magistrates.

These two propositions, though worded with But this candid admission on the part of Mr. cautious precision, and in technical language, to prevent the subtlety of legal disputation in oppo- 1 One of the counsei for the prosecution.

Τ Τ

sel.

osition.

Second

1

Bearcroft, though very honorable to himself, is no further than to summon the jurors, to compel The court hav. of no importance to me; since, from their attendance, ministerially to regulate their ing expressed what has already fallen from your proceedings, and to enforce their decisions. And ion, their atten- Lordship, I am not to expect a rat- even where he was specially empowered by the

ification of it from the court; it is King's writ of justicies to proceed in causes of therefore my duty to establish it. I feel all the superior value, no judicial authority was thereby importance of my subject, and nothing shall lead conferred upon himself, but only a more enlarged me to-day to go out of it. I claim all the atten- jurisdiction ON THE JURORS, who were to try tion of the court, and the right to state every the cause mentioned in the writ. It is true that authority which applies, in my judgment, to the the sheriff can not now intermeddle in pleas of argument, without being supposed to introduce the Crown; but with this exception, which brings them for other purposes than my duty to my cli- no restrictions on juries, these jurisdictions reent and the Constitution of my country warrants main untouched at this day: intricacies of propand approves.

erty have introduced other forms of proceeding, It is not very usual, in an English court of but the Constitution is the same.

justice, to be driven back to the ear- This popular judicature was not confined to jury to decide liest history and original elements of particular districts, or to inserior suits (3.) The King's well as fets in the Constitution, in order to estab- and misdemeanors, but pervaded the countrie Cure original princi

lish the first principles which mark whole legal Constitution. For, when queror. ple of English and distinguish English law: they the Conqueror, to increase the influence of his

are always assumed, and, like ax- crown, erected that great superintending court ioms in science, are made the foundations of of justice in his own palace to receive appeals reasoning without being proved. Of this sort criminal and civil from every court in the king. our ancestors, for many centuries, must have dom, and placed at the head of it the capitalis conceived the right of an English jury to decide justiciarius totius Angliæ (Chief Justiciary of all upon every question which the forms of the law England), of whose original authority the Chief submitted to their final decision ; since, though Justice of this court is but a partial and feeble they have immemorially exercised that supreme emanation : even that great magistrate was in jurisdiction, we find no trace in any of the an- the Aula Regis (King's Court] merely ministerial; cient books of its ever being brought into ques- every one of the King's tenants, who owed him tion. It is but as yesterday, when compared service in right of a barony, had a seat and a voice with the age of the law itself, that judges, un- in that high tribunal; and the office of justiciar warranted by any former judgments of their was but to record and to enforce their judgpredecessors, without any new commission from ments. 4 the Crown, or enlargement of judicial authority In the reign of King Edward the First, when from the Legislature, have sought to fasten a this great office was abolished, and the (4) The House limitation upon the rights and privileges of ju- present courts at Westminster estab- of Lords as a rors, totally unknown in ancient times, and pal- lished by a distribution of its powers, 5 pably destructive of the very end and object of the barons preserved that supreme superintendtheir institution.

ing jurisdiction which never belonged to the JusNo fact, my Lord, is of more easy demonstra- ticiar, but to themselves only as the jurors in the tion ; for the history and laws of a free country King's Court—a jurisdiction which, when nobillie open, even to vulgar inspection.

ity, from being territorial and feudal, became During the whole Saxon era, and even long personal and honorary, was assumed and exer(1.) The low. after the establishment of the Norman

3 The Writ of Justicies was a writ directed to boten bertson government, the whole administration the sheriff in some special cases, by virtue of which and Leet. of justice, criminal and civil, was in he might hold plea of debt in his county court for a the hands of the people, without the control or large sum, whereas, by his ordinary power, he was intervention of any judicial authority, delegated limited to sums under forty shillings. to fixed magistrates by the Crown. The ten- 4 The King's Court was composed of the Chief ants of every manor administered civil justice to Justiciary, the Chancellor, the Constable, Marshal, one another in the Court Baron of their Lord; Chamberlain, Steward, and Treasurer, with any othand their crimes were judged of in the Leet,' ev- ers whom the King might appoint. The Court of

Exchequer, in which all revenue matters were transery suitor of the manor giving his voice as a ju- acted, formed a branch of this court. The Chief ror, and the steward being only the registrar, Justiciary was the greatest subject in England : be. and not the judge.

sides presiding in the King's Court, and in the ExOn appeals from these domestic jurisdictions chequer, he was originally, by virtue of his office. (2) The Coun to the county court, and to the tourn the Regent of the kingdom during the absence of ty and Sheriff's (circuit) of the sheriff

, or in suits and the Sovereign. prosecutions originally commenced in

Though Edward settled the jurisdiction of the either of them, the sheriff's authority extended several courts, the separation of the Exchequer first

, and afterward the Common Pleas, from the King's

Court, took place long before. The detachment of 2 The Court Baron belonged more particularly to the latter had its beginning, in Madox's opinion, as a manor, and the Court Leet to a hundred, which early as in the reign of Richard the First; but it was was the smallest civil division in Saxon times. See completely established by the Magna Charta of 17 Jacobs's Law Dictionary.

John, and then first made stationary at Westminster

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