Page images
PDF
EPUB

retired to bed, where he lay unconscious that ruffians were ruining him by their disorders in the night-that on Monday he published an advertisement, reviling the authors of the riots; and, as the Protestant cause had been wickedly made the pretext for them, solemnly enjoined all who wished well to it to be obedient to the laws (nor has the Crown even attempted to prove that he had either given, or that he afterward gave secret instructions in opposition to that public admonition)—that he afterward begged an audience to receive the King's commands― that he waited on the ministers-that he attended his duty in Parliament-and when the multi

associated Protestants) again assembled on the Tuesday, under pretense of the Protestant cause, he offered his services, and read a resolution of the House to them, accompanied with every expostulation which a zeal for peace could possibly inspire-that he afterward, in pursuance of the King's direction, attended the magistrates in their duty; honestly and honorably exerting all his powers to quell the fury of the multitude; a conduct which, to the dishonor of the Crown, has been scandalously turned against him, by criminating him with protections granted publicly in the coach of the Sheriff of London, whom he was assisting in his office of magistracy; although protections of a similar nature were, to the knowledge of the whole Privy Council, granted by Mr. Fisher himself, who now stands in my presence unaccused and unreproved, but who, if the Crown that summoned him durst have called him, would have dispersed to their confusion the slightest imputation of guilt.

broken, interrupted, disjointed words, without context or connection-uttered by the speaker in agitation and heat-heard, by those who relate them to you, in the midst of tumult and confusion-and even those words, mutilated as they are, in direct opposition to, and inconsistent with repeated and earnest declarations delivered at the very same time and on the very same occasion, related to you by a much greater number of persons, and absolutely incompatible with the whole tenor of his conduct. Which of us all, gentlemen, would be safe, standing at the bar of God or man, if we were not to be judged by the regular current of our lives and conversations, but by detached and unguarded expres-tude (among whom there was not a man of the sions, picked out by malice, and recorded, without context or circumstances, against us? Yet such is the only evidence on which the Crown asks you to dip your hands, and to stain your consciences, in the innocent blood of the noble and unfortunate youth who stands before you on the single evidence of the words you have heard from their witnesses (for of what but words have you heard?), which, even if they had stood uncontroverted by the proofs that have swallowed them up, or unexplained by circumstances which destroy their malignity, could not, at the very worst, amount in law to more than a breach of the Act against tumultuous petitioning (if such an act still exists); since the worst malice of his enemies has not been able to bring up one single witness to say that he ever directed, countenanced, or approved rebellious force against the Legislature of this country. It is, therefore, a matter of astonishment to me that men can keep the natural color in their cheeks when they ask for human life, even on the Crown's original case, though the prisoner had made no defense. But will they still continue to ask for it after what they have heard? I will just remind the Solicitor General, before he begins his reply, what matter he has to encounter. He has to encounter this: That the going up in a body was not even originated by Lord George, but by others in his absence-that when proposed by him officially as chairman, it was adopted by the whole Association, and consequently was their act as much as his-that it was adopted, not in a conclave, but with open doors, and the resolution published to all the world-that it was known, of course, to the ministers and magistrates of the country, who did not even signify to him, or to any body else, its illegality or danger-that decency and peace were enjoined and commanded that the regularity of the procession, and those badges of distinction, which are now cruelly turned into the charge of an hostile array against him, were expressly and publicly directed for the preservation of peace and the prevention of tumult-that while the House was deliberating, he repeatedly entreated them to behave with decency and peace, and to retire to their houses, though he knew not that he was speaking to the enemies of his cause-that when they at last dispersed, no man thought or imagined that treason had been committed-that he

What, then, has produced this trial for high treason, or given it, when produced, cause of the the seriousness and solemnity it wears? prosecution. What but the inversion of all justice, by judging from consequences, instead of from causes and designs? What but the artful manner in which the Crown has endeavored to blend the petitioning in a body, and the zeal with which an animated disposition conducted it, with the melancholy crimes that followed? crimes which the shameful indolence of our magistrates-which the total extinction of all police and government suffered to be committed in broad day, and in the delirium of drunkenness, by an unarmed banditti, without a head-without plan or object-and without a refuge from the instant gripe of justice: a banditti with whom the associated Protestants and their president had no manner of connection, and whose cause they overturned, dishonored, and ruined.

How unchristian, then, is it to attempt, without evidence, to infect the imaginations of men who are sworn, dispassionately and disinterestedly, to try the trivial offense of assembling a multitude with a petition to repeal a law (which has happened so often in all our memories), by blending it with the fatal catastrophe, on which every man's mind may be supposed to retain some degree of irritation! O fie! O fie! the intellectual seat of justice to be thus impious

Is

ly shaken?

to-day.

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 connect it with unforeseen consequences, in spite of reason and truth? Is it their object to hang the millstone of prejudice around his innocent neck to sink him? If there be such men, may Heaven forgive them for the attempt, and inspire you with fortitude and wisdom to discharge your duty with calm, steady, and reflecting minds!

Peroration.

What can overturn such a proof as this? Surely a good man might, without superstition, believe that such a union of events was something more than natural, and that a Divine Providence was watchful for the protection of innocence and truth.

I may now, therefore, relieve you from the pain of hearing me any longer, and be myself relieved from speaking on a subject which agitates and distresses me. Since Lord George Gordon stands clear of every hostile act or purpose against the Legislature of his country, or the properties of his fellow-subjects-since the whole tenor of his conduct repels the belief of the traitorous intention charged by the indictment-my task is finished. I shall make no address to your passions. I will not remind you of the long and rigorous imprisonment he has suffered; I will not speak to you of his great youth, of his illustrious birth, and of his uniformly animated and generous zeal in Parliament for the Constitution of his country. Such topics might be useful in the balance of a doubtful case; yet, even then, I should have trusted to the honest hearts of Englishmen to have felt them without excitation. At present, the plain and rigid rules of justice and truth are sufficient to entitle me to your verdict.

Gentlemen, I have no manner of doubt that you will.29 I am sure you can not but see, notwithstanding my great inability, increased by a perturbation of mind (arising, thank God! from no dishonest cause), that there has been not only no evidence on the part of the Crown to fix the guilt of the late commotions upon the prisoner, but that, on the contrary, we have been able to resist the probability, I might almost say the possibility of the charge, not only by living witnesses, whom we only ceased to call because the trial would never have ended, but by the evidence of all the blood that has paid the forfeit of that guilt already; an evidence that I will take upon me to say is the strongest and most unanswerable which the combination of natural events ever brought together since the beginning of the world for the deliverance of the oppressed since, in the late numerous trials for acts of violence and depredation, though conducted by the ablest servants of the Crown, with a laudable eye to the investigation of the subject which now engages us, no one fact appeared which showed any plan, any object, any leader; since, out of forty-four thousand persons who signed the petition of the Protestants, not one was to be found among those who were convict-who considered his conduct as deeply criminal, ed, tried, or even apprehended on suspicion; and since, out of all the felons who were let loose from prisons, and who assisted in the destruction of our property, not a single wretch was to be

The jury, after being charged by Lord Mansfield, withdrew at three o'clock in the morning, and speedily returned with the verdict - Nor GUILTY. The decision was satisfactory, in a high degree, to all reflecting men. Even those

felt with Dr. Johnson: "I am glad Lord George Gordon has escaped, rather than a precedent should be established of hanging a man for constructive 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 jury 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 subdued tone which reigns throughout it. A less skillful advocate would have closed with a powerful appeal to the feelings of the jury. But Mr. Erskine, with that quick instinct which enabled him to read the emotions of men in their countenances, saw that his cause was gained. He chose, therefore, to throw over his concluding remarks the appearance

of a perfect understanding between him and the jury, that the verdict of acquittal was already made up in their minds, so that any appeal to their feelings would be wholly out of place. His allusion to the providence of God as watching over the innocent, beautifully coincides with this sentiment; and in his closing sentence he does not ask a decision in his 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 had 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 sentiments 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, "Guilty 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 exhibited 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 have done honor to Selden or Hale, while he was animated by an enthusiasm which was peculiarly his own. Though appealing to judges who heard him 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, that 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 puts himself upon 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 criminal 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 general issue, does not necessarily and unavoidably establish the criminal intention by any abstract conclusion 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 reputa tion), but whose criminality is charged to consist (as in the present instance) in its tendency to stir up general discontent-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 such inference, the intention then becomes a pure, unmixed question of fact, for the consideration 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 to your Lordship in support of the rule granted to me by the court upon Monday last; which, as Mr. Bearcroft has truly said, and seemed to mark the observation with peculiar emphasis, is a

rule for a new trial. Much of my argument, according to his notion, points another way; whether its direction be true, or its force adequate to the object, it is now my business to show.

In rising to speak at this time, I feel all the

ment

ositions.

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 con- Restatement der of arg but I feel a disadvantage likewise, vey any other sentiment than this, of these propwhich 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 to deliver up to the court certain written and maturely considered PROPOSITIONS, from the establishment of which I resolved not to depart, nor to be removed, either in substance or in order, in any stage of the proceedings, and by which I must therefore this day unquestionably

stand or fall.

evading its

Pursuing this system, I am vulnerable two Only two pos- ways, and in two ways only. Either sible modes of it must be shown that my propositions force. are not valid in law, or, admitting their validity, that the learned judge's charge to the jury at Shrewsbury was not repugnant to them there can be no other possible objections to my application for a new trial. My duty today is, therefore, obvious and simple: it is, first, to re-maintain those propositions, and then to show that the charge delivered to the jury at Shrewsbury was founded upon the absolute denial and reprobation of them.

I. I begin, therefore, by saying again, in my First Prop- own original words, That when a bill osition. of indictment is found, or an information filed, charging any crime or misdemeanor known to the law of England, and the party accused puts himself upon 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 Second theory holds to be criminal, constitutes Proposition. 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 reasons from a fact or facts 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 general issue, does not necessarily and unavoidably establish the criminal intention by any abstract conclusion of the 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. These two propositions, though worded with cautious precision, and in technical language, to prevent the subtlety of legal disputation in oppo

TT

a

sel.

Having said this, I freely confess to the court that I am much at a loss for any fur- The recent lim ther illustration of my subject, be- rits of juries cause I can not find any matter by departure from original which it might be further illustrated, usage. so clear or so indisputable, either in fact or in law, as the very proposition itself upon which this trial has been brought into question. Looking back upon the ancient Constitution, and examining with painful research the original jurisdictions of the country, I am utterly at a loss to imagine from what sources these novel limitations of the rights of juries are derived. Even the bar is not yet trained to the discipline of maintaining them. My learned friend Mr. Bearcroft' solemnly abjures them. He repeats to-day what he avowed at the trial, and is even jealous of the imputation of having meant less than he expressed. For, when speaking this Concession of morning of the right of the jury to opposing coun judge of the whole charge, your Lordship corrected his expression, by telling him he meant the power, and not the right; he caught instantly at your words, disavowed your explanation, and, with a consistency which does him honor, declared his adherence to his original admission in its full and obvious extent. "I did not mean," said he, "merely to acknowledge that the jury have the power, for their power nobody ever doubted. If a judge was to tell them they had it not, they would only have to laugh at him, and convince him of his error, by finding a GENERAL verdict, which must be recorded: I meant, therefore, to consider it as a right, as an important privilege, and of great value to the Constitution." Thus Mr. Bearcroft and I are perfectly agreed; I never contended for more than he has voluntarily conceded. I have now his express authority for repeating, in my own former words, that the jury have not merely the power to acquit, upon a view of the whole charge, without control or punishment, and without the possibility of their acquittal being annulled by any other authority; but that they have a constitutional, legal right to do it; a right fit to be exercised; and intended, by the wise founders of the government, to be a protection to the lives and liberties of Englishmen, against the encroachments and perversions of authority in the hands of fixed magistrates. But this candid admission on the part of Mr.

1 One of the counsel for the prosecution.

The court having expressed another opia

tion claimed.

Bearcroft, though very honorable to himself, is of no importance to me; since, from what has already fallen from your ion, their atten- Lordship, I am not to expect a ratification of it from the court; it is therefore my duty to establish it. I feel all the importance of my subject, and nothing shall lead me to-day to go out of it. I claim all the attention of the court, and the right to state every authority which applies, in my judgment, to the argument, without being supposed to introduce them for other purposes than my duty to my client and the Constitution of my country warrants and approves.

The right of a

on the law as

the case, an original princijurisprudence.

ple of English

no further than to summon the jurors, to compel their attendance, ministerially to regulate their proceedings, and to enforce their decisions. And even where he was specially empowered by the King's writ of justicies to proceed in causes of superior value, no judicial authority was thereby conferred upon himself, but only a more enlarged jurisdiction ON THE JURORS, who were to try the cause mentioned in the writ. It is true that the sheriff can not now intermeddle in pleas of the Crown; but with this exception, which brings no restrictions on juries, these jurisdictions remain untouched at this day: intricacies of property have introduced other forms of proceeding, but the Constitution is the same.

Court of Wil

This popular judicature was not confined to particular districts, or to inferior suits (3.) The King's and misdemeanors, but pervaded the Co whole legal Constitution. For, when queror. the Conqueror, to increase the influence of his crown, erected that great superintending court of justice in his own palace to receive appeals criminal and civil from every court in the kingdom, and placed at the head of it the capitalis justiciarius totius Angliæ [Chief Justiciary of all England], of whose original authority the Chief Justice of this court is but a partial and feeble emanation: even that great magistrate was in the Aula Regis [King's Court] merely ministerial; every one of the King's tenants, who owed him service in right of a barony, had a seat and a voice in that high tribunal; and the office of justiciar was but to record and to enforce their judgments.

It is not very usual, in an English court of justice, to be driven back to the earjury to decide liest history and original elements of well as facts in the Constitution, in order to establish the first principles which mark and distinguish English law: they are always assumed, and, like axioms in science, are made the foundations of reasoning without being proved. Of this sort our ancestors, for many centuries, must have conceived the right of an English jury to decide upon every question which the forms of the law submitted to their final decision; since, though they have immemorially exercised that supreme jurisdiction, we find no trace in any of the ancient books of its ever being brought into question. It is but as yesterday, when compared with the age of the law itself, that judges, un- | warranted by any former judgments of their predecessors, without any new commission from 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 their institution.

No fact, my Lord, is of more easy demonstration; for the history and laws of a free country lie open, even to vulgar inspection.

est courts, both Baron

During the whole Saxon era, and even long (1.) The low after the establishment of the Norman government, the whole administration and Leet. of justice, criminal and civil, was in the hands of the people, without the control or intervention of any judicial authority, delegated to fixed magistrates by the Crown. The tenants of every manor administered civil justice to one another in the Court Baron of their Lord; and their crimes were judged of in the Leet, every suitor of the manor giving his voice as a juror, and the steward being only the registrar, and not the judge.

[blocks in formation]

court.

the barons preserved that supreme superintending jurisdiction which never belonged to the Justiciar, but to themselves only as the jurors in the King's Court—a jurisdiction which, when nobility, from being territorial and feudal, became personal and honorary, was assumed and exer

3 The Writ of Justicies was a writ directed to

the sheriff in some special cases, by virtue of which he might hold plea of debt in his county court for a large sum, whereas, by his ordinary power, he was limited to sums under forty shillings.

4 The King's Court was composed of the Chief Justiciary, the Chancellor, the Constable, Marshal, Chamberlain, Steward, and Treasurer, with any others whom the King might appoint. The Court of Exchequer, in which all revenue matters were transacted, formed a branch of this court. The Chief Justiciary was the greatest subject in England: besides presiding in the King's Court, and in the Exchequer, he was originally, by virtue of his office. the Regent of the kingdom during the absence of the Sovereign.

Though Edward settled the jurisdiction of the

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 the latter had its beginning, in Madox's opinion, as early as in the reign of Richard the First; but it was completely established by the Magna Charta of 17 John, and then first made stationary at Westminster

« PreviousContinue »