« PreviousContinue »
ment ought never to be assumed to expose error | impeachments have been adopted for a higher exor to scourge misfortune, but to hold up a terri-ample than a prosecution in the ordinary courts, ble example to corruption and willful abuse of but surely never for a different example. The authority by extra legal pains. If public men matter, therefore, in the offensive paragraph is are always punished with due severity when the not only an indisputable truth, but a truth in source of their misconduct appears to have been the propagation of which we are all deeply conselfishly corrupt and criminal, the public can cerned. never suffer when their errors are treated with Whether Mr. Hastings, in the particular ingentleness. From such protection to the mag. stance, acted from corruption or from zeal for his istrate, no man can think lightly of the charge employers, is what I have nothing to do with ; it of magistracy itself, when he sees, by the lan- is to be decided in judgment; my duty stops with guage of the saving judgment, that the only title wishing him, as I do, an honorable deliverance. to it is an honest and zealous intention. If at Whether the minister or the Commons meant to this moment, gentlemen, or indeed in any other found this article of the impeachment on mere in the whole course of our history, the people of error, without corruption, likewise foreign to England were to call upon every man in this im- the purpose. The author eould only judge from peaching House of Commons who had given his what was said and done on the occasion. He voice on public questions, or acted in authority, only sought to guard the principle, which is a civil or military, to answer for the issues of our common interest, and the rights of Mr. Hastings councils and our wars, and if honest single in- under it. He was, therefore, justified in publishtentions for the public service were refused as ing that an impeachment, founded in error in answers to impeachments, we should have many judgment, was, to all intents and purposes, illerelations to mourn for, and many friends to de- gal, unconstitutional, and unjust. plore. For my own part, gentlemen, I feel, I Gentlemen, it is now time for us to return again hope, for my country as much as any man that to the work under examination. The author has. inhabits it; but I would rather see it fall, and be ing discussed the whole of the first article through buried in its ruins, than lend my voice to wound so many pages, without even the imputation of an any minister, or other responsible person, how-incorrect or intemperate expression, except in the ever unfortunate, who had fairly followed the concluding passage (the meaning of which I trust lights of his understanding and the dictates of his I have explained), goes on with the same earnest conscience for their preservation.
disposition to the discussion of the second charge Gentlemen, this is no theory of mine ; it is respecting the princesses of Oude, which occupies the language of English law, and the protection eighteen pages, not one syllable of which the Atwhich it affords to every man in office, from the torney General has read, and on which there is not highest to the lowest trust of government. In even a glance at the House of Commons. The no one instance that can be named, foreign or whole of this answer is, indeed, so far from bedomestic, did the Court of King's Bench ever in- ing a mere cloak for the introduction of slander, terpose its extraordinary jurisdiction, by inform that I aver it to be one the most masterly ation, against any magistrate for the widest de- pieces of writing I ever read in my life. From parture from the rule of his duty, without the thence he goes on to the charge of contracts and plainest and clearest proof of corruption. To salaries, which occupies five pages more, in which every such application, not so supported, the con- | there is not a glance at the House of Commons, nor stani answer has been, Go to a grand jury with a word read by the Attorney General. He aftyour complaint. God forbid that a magistrate erward defends Mr. Hastings against the charges should suffer from an error in judgment, if his respecting the opium contracts. Not a glance at purpose was honestly to discharge his trust. We the House of Commons; not a word by the Attorcan not stop the ordinary course of justice; but ney General. And, in short, in this manner he wherever the court has a discretion, such a mag- goes on with the others, to the end of the book. istrate is entitled to its protection. I appeal to Now, is it possible for any human being to bethe noble judge, and to every man who hears me, lieve that a man, having no other intention than to for the truth and universality of this position. vilify the House of Commons (as this information And it would be a strange solecism, indeed, to charges), should yet keep his mind thus fixed and assert that, in a case where the supreme court settled as the needle to the pole, upon the serious of criminal justice in the nation would refuse to merits of Mr. Hastings's defense, without ever interpose an extraordinary though a legal juris- straying into matter even questionable, except in diction, on the principle that the ordinary exe- the two or three selected parts out of two or cution of the laws should never be exceeded, but three hundred pages ? This is a forbearance for the punishment of malignant guilt, the Com- which could not have existed, if calumny and mons, in their higher capacity, growing out of detraction had been the malignant objects which the same Constitution, should reject that princi- led him to the inquiry and publication. The ple, and stretch them still further by a jurisdic- whole fallacy, therefore, arises from holding up tion still more eccentric. Many impeachments to view a few detached passages, and carefully have taken place, because the law could not ade- concealing the general tenor of the book. quately punish the objects of them ; but who ever Having now finished most, if not all of these heard of one being set on foot because the law, critical observations, which it has been my duty upon principle, would not punish then ? Many to make upon this unfair modo of prosecution, it is but a tribute of common justice to the Attorney the first object of his attention, and that, under General (and which my personal regard for him his administration, it has been safe and prospermakes it more pleasant to pay), that none of my ous; if it be true that the security and preservacommentaries reflect in the most distant manner tion of our possessions and revenues in Asia were upon him ; nor upon the Solicitor for the Crown, marked out to him as the great leading principle who sits near me, who is a person of the most of his government, and that those possessions and correct honor; far from it. The Attorney Gen- revenues, amid unexampled dangers, have been eral having orders to prosecute, in consequence secured and preserved; then a question may be of the address of the House to his Majesty, had unaccountably mixed with your consideration, no choice in the moderno means at all of keep much beyond the consequence of the present ing the prosecutors before you in countenance, but prosecution, involving, perhaps, the merit of the by the course which has been pursued. But so impeachment itself which gave it birth—a ques. far has he been from enlisting into the cause those tion which the Commons, as prosecutors of Mr. prejudices, which it is not difficult to slide into a Hastings, should, in common prudence, have business originating from such exalted authority, avoided ; unless, regretting the unwieldy length he has honorably guarded you against them; of their proceedings against him, they wish to afpressing, indeed, severely upon my client with ford him the opportunity of this strange anomathe weight of his ability, but not with the glare lous defense. For, although I am neither his and trappings of his high office.
counsel, nor desire to have any thing to do with Gentlemen, I wish that my strength would en- his guilt or innocence; yet, in the collateral de able me to convince you of the author's single-fense of my client, I am driven to state matter ness of intention, and of the merit and ability of which may be considered by many as hostile to his work, by reading the whole that remains of the impeachment. For if our dependencies have it. But my voice is already nearly exhausted; been secured, and their interests promoted, I am I am sorry my client should be a sufferer by my driven, in the defense of my client, to remark, that infirmity. One passage, however, is too striking it is mad and preposterous to bring to the standand important to be passed over ; the rest I must ard of justice and humanity the exercise of a dotrust to your private examination. The author minion founded upon violence and terror. It may having discussed all the charges, article by arti- and must be true that Mr. Hastings has repeatcle, sums them all up with this striking appeal to edly offended against the rights and privileges of his readers :
Asiatic government, if he was the faithful deputy “ The authentic statement of facts which has of a power which could not maintain itself for an been given, and the arguments which have been hour without trampling upon both. He may and employed, are, I think, sufficient to vindicate the must have offended against the laws of God and character and conduct of Mr. Hastings, even on nature, if he was the faithful viceroy of an emthe maxims of European policy. When he was pire wrested in blood from the people to whom appointed Governor General of Bengal, he was God and nature had given it. He may and must invested with a discretionary power to promote have preserved that unjust dominion over timorthe interests of the India Company, and of the ous and abject nations by a terrifying, overbearBritish empire in that quarter of the globe. The ing, insulting superiority, if he was the faithful general instructions sent to him from his constit- administrator of your government, which, having uents were, 'That in all your deliberations and no root in consent or affection—no foundation in resolutions, you make the safety and prosperity similarity of interests—no support from any one of Bengal your principal object, and fix your at- principle which cements men together in society, tention on the security of the possessions and rev- could only be upheld by alternate stratagem and enues of the company. His superior genius force. The unhappy people of India, feeble and sometimes acted in the spirit, rather than com- effeminate as they are from the softness of their plied with the letter of the law; but he discharged climate, and subdued and broken as they have the trust, and preserved the empire committed to been by the knavery and strength of civilization, his care, in the same way, and with greater still occasionally start up in all the vigor and insplendor and success than any of his predecessors telligence of insulted nature. To be governed in office; his departure from India was marked at all
, they must be governed with a rod of iron; with the lamentations of the natives and the grat- and our empire in the East would, long since, itude of his countrymen; and, on his return to have been lost to Great Britain, if civil skill and England, he received the cordial congratulations military prowess had not united their efforts to of that numerous and respectable society, whose support an authority—which Heaven never gave interests he had promoted, and whose dominions -by means which it never can sanction.11 he had protected and extended." Gentlemen of the jury—if this be a willfully
11 Mr. Hastings was unquestionably guilty of near. Collateral defense false account of the instructions giv- ly all the acts charged upon him by Mr. Burke. Still of Mr. Hastinga en to Mr. Hastings for his govern- large, that great allowance ought to be made for him
it was felt by the court, and at last by the public at ment, and of his conduct under them, the author when it was remembered that be completely restorand publisher of this defense deserves the severed the finances of the country, which he found in the est punishment, for a mercenary imposition on utmost disorder; that he established the British emthe public. But if it be true that he was direct- pire in India on a firm basis, at a time when, under ed to make the safety and prosperity of Bengal | a less energetic government than his own, it would Gentlemen, I think I can observe that you are for money, whatever may be the necessity for touched with this way of considering the subject, taking it.13 All these things must ever be ocand I can account for it. I have not been con- curring. But under the pressure of such considering it through the cold medium of books, stant difficulties, so dangerous to national honor, but have been speaking of man and his nature, it might be better, perhaps, to think of effectually and of human dominion, from what I have seen securing it altogether, by recalling our troops of them myself among reluctant nations submit- and our merchants, and abandoning our Oriental ting to our authority." I know what they feel, empire. Until this be done, neither religion nor and how such feelings can alone be repressed. philosophy can be pressed very far into the aid I have heard them in my youth from a naked of reformation and punishment. If England, The Indian savage, in the indignant character of a from a last of ambition and dominion, will insist Chies:
prince surrounded by his subjects, ad on maintaining despotic rule over distant and dressing the governor of a British colony, hold- hostile nations, beyond all comparison more nuing a bundle of sticks in his hand, as the notes merous and extended than herself
, and gives of his unlettered eloquence. “Who is it,” said commission to her viceroys to govern them with the jealous ruler over the desert, encroached no other instructions than to preserve them, and upon by the restless foot of English adventure to secure permanently their revenues, with what “who is it that causes this river to rise in the color of consistency or reason can she place herhigh mountains, and to empty itself into the self in the moral chair, and affect to be shocked ocean? Who is it that causes to blow the loud at the execution of her own orders; adverting winds of winter, and that calms them again in to the exact measure of wickedness and injussummer? Who is it that rears up the shade of tice necessary to their execution, and complainthose lofty forests, and blasts them with the ing only of the excess as the immorality, considquick lightning at his pleasure? The same Be- ering her authority as a dispensation for breaking who gave to you a country on the other side ing the commands of God, and the breach of of the waters, and gave ours to us; and by this them as only punishable when contrary to the title we will defend it," said the warrior, throwing ordinances of man? down his tomahawk upon the ground, and rais- Such a proceeding, gentlemen, begets serions ing the war-sound of his nation. These are the reflection. It would be better, perhaps, for the feelings of subjugated man all round the globe ; masters and the seryants of all such governments and depend upon it, nothing but fear will control to join in supplication, that the great Author of where it is vain to look for affection.12
violated humanity may not confound them toThese reflections are the only antidotes to gether in one common judgment. those anathemas of superhuman eloquence which Gentlemen, I find, as I said before, I have not have lately shaken these walls that surround us, sufficient strength to go on with the remaining but which it unaccountably falls to my province, parts of the book. I hope, however, that not. whether I will or no, a little to stem the torrent withstanding my omissions, you are now comof, by reminding you that you have a mighty pletely satisfied that, whatever errors or misconsway in Asia, which can not be maintained by ceptions may have misled the writer of these the finer sympathies of life, or the practice of its pages, the justification of a person whom he becharities and affections. What will they do for lieved to be innocent, and whose accusers had you when surrounded by two hundred thousand themselves appealed to the public, was the sinmen with artillery, cavalry, and elephants, call- gle object of his contemplation. If I have sucing upon you for their dominions which you have ceeded in that object, every purpose which I had robbed them of ? Justice may, no doubt, in such in addressing you has been answered. a case forbid the levying of a fine to pay a re- It only now remains to remind you that anvolting soldiery; a treaty may stand in the way other consideration has been strong. If the writer of increasing a tribute to keep up the very ex- ly pressed upon you, and, no doubt, was honest ia istence of the government; and delicacy for will be insisted on in reply. You will be ought not women may forbid all entrance into a Zenana be told that the matters which I have for an ocea
been justifying as legal. and even merinevitably have fallen altogether; and, in addition to this,
he was constantly pressed by the Directors of itorious, have therefore not been made the subthe East India Company for remittances of money, ject of complaint ; and that whatever intrinsic which could only be extorted by oppression. Al merit parts of the book may be supposed or even though his government was arbitrary, yet it was admitted to possess, such merit can afford no popular among the natives, being milder and more justification to the selected passages, some of just than that of their own princes; while he him. which, even with the context, carry the meaning self was respected for the unusual regard which he charged by the information, and which are indepaid to native prejudices and customs, and his pat. cent animadversions on authority. To this I ropage of literature and the fine arts.
12 The reader will be struck with the rapid flow of would answer (still protesting as I do against the rhythmas in this speech of the Indian chief, so the application of any one of the innuendoes), admirably corresponding in its iambic structure that if you are firmly persuaded of the singlewith the character of the speaker. It should be ness and purity of the author's intentions, you read aloud in connection with a correspondent pas. sage of Mr. Grattan, already remarked upon for its 13 See introduction to Mr. Sheridan's speech, p. slow and majestic movement. See page 390.
are not bound to subject him to infamy, because, which you had exchanged for the banners of in the zealous career of a just and animated Freedom. composition, he happens to have tripped with If it be asked where the line to this indulgence his pen into an intemperate expression in one or and impunity is to be drawn, the an- General printwo instances of a long work. If this severe swer is easy. The liberty of the press, sports the duty were binding on your consciences, the lib-on general subjects, comprehends and press. erty of the press would be an empty sound, and implies as much strict observance of positive law no man could venture to write on any subject, as is consistent with perfect purity of intention, however pure his purpose, without an attorney and equal and useful society. What that latiat one elbow and a counsel at the other. tude is, can not be promulgated in the abstract,
From minds thus subdued by the terrors of but must be judged of in the particular instance, Evils of too punishment, there could issue no works and consequently, upon this occasion, must be Series on of genius to expand the empire of hu- judged of by you, without forming any possible
man reason, nor any masterly composi- precedent for any other case; and where can tions on the general nature of government, by the judgment be possibly so safe as with the the help of which the great commonwealths of members of that society which alone can suffer, mankind have founded their establishments; if the writing is calculated to do mischief to the much less any of those useful applications of public ? You must, therefore, try the book by them to critical conjunctures, by which, from that criterion, and say whether the publication time to time, our own Constitution, by the exer- was premature and offensive, or, in other words, tion of patriot citizens, has been brought back to whether the publisher is bound to have suppressits standard. Under such terrors, all the great ed until the public ear was anticipated and lights of science and civilization must be extin- abused, and every avenue to the human heart or guished; for men can not communicate their free understanding secured and blocked up? I see thoughts to one another with a lash held over around me those by whom, by-and-by, Mr. Hasttheir heads. It is the nature of every thing that ings will be most ably and eloquently defendis great and useful, both in the animate and in- ed ;15 but I am sorry to remind my friends that, animate world, to be wild and irregular, and we but for the right of suspending the public judgmust be contented to take them with the alloys ment concerning him till their season of exerwhich belong to them, or live without them. tion comes round, the tongues of angels would Genius breaks from the setters of criticism, but be insufficient for the task. its wanderings are sanctioned by its majesty and Gentlemen, I hope I have now performed my wisdom when it advances in its path: subject it to duty to my client: I sincerely hope that I have; the critic, and you tame it into dullness. Mighty for, certainly, if ever there was a man pulled the rivers break down their banks in the winter, other way by his interests and affections—if ever sweeping away to death the flocks which are there was a man who should have trembled at fattened on the soil that they fertilize in the sum- the situation in which I have been placed on this mer : the few may be saved by embankments occasion, it is myself, who not only love, honor, from drowning, but the flock must perish for hun- and respect, but whose future hopes and preferger. Tempests occasionally shake our dwellings ments are linked, from free choice, with those and dissipate our commerce; but they scourge who, from the mistakes of the author, are treatbefore them the lazy elements, which without ed with great severity and injustice.
These are them would stagnate into pestilence.!4 In like strong retardments; but I have been urged on manner, Liberty herself, the last and best gift of to activity by considerations which can never be God to his creatures, must be taken just as she inconsistent with honorable attachments, either is : you might pare her down into bashsul reg. in the political or social world—the love of jusularity, and shape her into a perfect model of tice and of liberty, and a zeal for the Constitusevere, scrupulous law, but she would then be tion of my country, which is the inheritance of Liberty no longer; and you must be content our posterity, of the public, and of the world. to die under the lash of this inexorable justice These are the motives which have animated me
in defense of this person, who is an entire stran14 This is one of the finest amplifications in En. ger to me-whose shop I never go to—and the glish oratory, beautiful in itself
, justified by the im. author of whose publication, as well as Mr. Hastportance of the subject which it enforces, and ad- ings, who is the object of it, I never spoke to in mirably suited to produce the designed impression. my life. The seminal idea was probably suggested by a re- One word more, gentlemen, and I have done. mark of Burke, whose writings Mr. Erskine inces. Every human tribunal ought to take santly studied. It is the nature of all greatness care to administer justice, as we look wan railty.com not to be exact."-See page 252. We see in this hereafter to have justice administered administering case, how a man of genius may borrow from anoth to ourselves. Upon the principle on er, without detracting in the least from the fresh which the Attorney General prays sentence upon ness and originality with which bis ideas are expressed and applied. At the present day, there can my client—God have mercy upon us ! Instead be very little of that originality which presents an of standing before him in judgment with the idea for the first time. All that can be expected is, that we make it our own, and apply it to new pur- 15 Mr. Law (afterward Lord Ellenborougb), Mr. poses.
A regard to hu
Plumer, and Mr. Dallas.
hopes and consolations of Christians, we must by which whole families have been rendered uncall upon the mountains to cover us; for which happy during life, by aspersions, cruel, scandalof us can present, for omniscient examination, a ous, and unjust. Let such libelers remember pure, unspotted, and faultless course ? But I that no one of my principles of defense can, at humbly expect that the benevolent Author of our any time or upon any occasion, ever apply to being will judge us as I have been pointing out shield them from punishment; because such for your example. Holding up the great volume conduct is not only an infringement of the rights of our lives in his hands, and regarding the gen- of men, as they are defined by strict law, but is eral scope of them; if he discovers benevolence, absolutely incompatible with honor, honesty, or charity, and good-will to man beating in the mistaken good intention. On such men let the heart, where he alone can look; if he finds that Attorney General bring forth all the artillery of our conduct, though often forced out of the path his office, and the thanks and blessings of the by our infirmities, has been in general well di- whole public will follow him. But this is a torected; his all-searching eye will assuredly nev- tally different case. Whatever private calumny er pursue us into those little corners of our lives, may mark this work, it has not been made the much less will his justice select them for punish- subject of complaint, and we have therefore nothment, without the general context of our exist- ing to do with that, nor any right to consider it. ence, by which faults may be sometimes found We are trying whether the public could have to have grown out of virtues, and very many of been considered as offended and endangered if our heaviest offenses to have been grafted by hu- Mr. Hastings himself, in whose place the author man imperfection upon the best and kindest of and publisher have a right to put themselves, our affections. No, gentlemen, believe me, this had, under all the circumstances which have been is not the course of divine justice, or there is no considered, composed and published the volume truth in the Gospels of Heaven. If the general under examination. That question can not, in tenor of a man's conduct be such as I have rep- common sense, be any thing resembling a quesresented it, he may walk through the shadow of tion of Law, but is a pure question of FACT, to be death, with all his faults about him, with as much decided on the principles which I have humbly cheerfulness as in the common paths of life; be- recommended. I, therefore, ask of the court that cause he knows that, instead of a stern accuser the book itself may now be delivered to you. to expose before the Author of his nature those Read it with attention, and as you shall find it, frail passages which, like the scored matter in pronounce your verdict. the book before you, checkers the volume of the brightest and best-spent lise, his mercy will obscure them from the eye of his purity, and our This trial took place before the passing of Mr repentance blot them out forever.
Fox's Libel Bill; and Lord Kenyon charged the All this would, I admit, be perfectly foreign jury that they were not to consider whether the and irrelevant, if you were sitting here in a case pamphlet was libelous, but simply whether it had of property between man and man, where a strict been published by the defendant. Under these rule of law must operate, or there would be an circumstances, they spent two hours in deliberaend of civil life and society. It would be equal-tion, but finally broke through the instructions of ly foreign, and still more irrelevant
, if applied to the court, and found the defendant nor GUILTY, those shameful attacks upon private reputation thus anticipating the rights soon after secured to which are the bane and disgrace of the press ; | juries by an act of Parliament.
SPEECH OF MR. ERSKINE IN BEHALF OF JOHN FROST, WHEN INDICTED FOR UTTERING SEDITIOUS WORDS,
DELIVERED BEFORE THE COURT OF KING'S BENCH, MARCH, 1793.
INTRODUCTION. This was the first trial under what has been called the “Reign of Terror." Mr. Frost was a London attorney of eminence, who had just returned from a visit to France, at that time under the government of the Convention, and hastening toward the revolutionary crisis. He dined with an agricultural society at a coffee-house, on the 6th of November, 1792. On bis coming down from the private room, where he had been dining, into the public coffee-room, between nine and ten in the evening, he was addressed by a person of the name of Yatman, who, knowing Mr. Frost, and that he had just returned from the continent, said to bim, "Well, how do they go on in France ?" Upon which Mr. Frost, who was much heated with wine, exclaimed, “I am for equality, and no King." Mr. Yatman replied, "What! no King in this country?" and Mr. Frost then repeated, “ Yes, no King; there ought to be no King." And it was for the use of this language, and for nothing beyond this, that the indictment was preferred.
SPEECH, &c. GentlemeN OF THE JURY,—I rise to address sider myself entitled, not only for the defendant you under circumstances so peculiar, that I con- / arraigned before you, but personally for myself,