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ample than a prosecution in the ordinary courts, but surely never for a different example. The matter, therefore, in the offensive paragraph is not only an indisputable truth, but a truth in the propagation of which we are all deeply concerned.

Whether Mr. Hastings, in the particular instance, acted from corruption or from zeal for his employers, is what I have nothing to do with; it is to be decided in judgment; my duty stops with wishing him, as I do, an honorable deliverance. Whether the minister or the Commons meant to found this article of the impeachment on mere error, without corruption, is likewise foreign to the purpose. The author could only judge from what was said and done on the occasion. He only sought to guard the principle, which is a common interest, and the rights of Mr. Hastings under it. He was, therefore, justified in publishing that an impeachment, founded in error in judgment, was, to all intents and purposes, illegal, unconstitutional, and unjust.

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 terrible example to corruption and willful abuse of authority by extra legal pains. If public men are always punished with due severity when the source of their misconduct appears to have been selfishly corrupt and criminal, the public can never suffer when their errors are treated with gentleness. From such protection to the magistrate, no man can think lightly of the charge of magistracy itself, when he sees, by the language of the saving judgment, that the only title to it is an honest and zealous intention. If at this moment, gentlemen, or indeed in any other in the whole course of our history, the people of England were to call upon every man in this impeaching House of Commons who had given his voice on public questions, or acted in authority, civil or military, to answer for the issues of our councils and our wars, and if honest single intentions for the public service were refused as answers to impeachments, we should have many relations to mourn for, and many friends to deplore. 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 havinhabits it; but I would rather see it fall, and being discussed the whole of the first article through buried in its ruins, than lend my voice to wound any minister, or other responsible person, however unfortunate, who had fairly followed the lights of his understanding and the dictates of his conscience for their preservation.

Gentlemen, this is no theory of mine; it is the language of English law, and the protection which it affords to every man in office, from the highest to the lowest trust of government. In no one instance that can be named, foreign or domestic, did the Court of King's Bench ever interpose its extraordinary jurisdiction, by information, against any magistrate for the widest departure from the rule of his duty, without the plainest and clearest proof of corruption. To every such application, not so supported, the constant answer has been, Go to a grand jury with your complaint. God forbid that a magistrate should suffer from an error in judgment, if his purpose was honestly to discharge his trust. We can not stop the ordinary course of justice; but wherever the court has a discretion, such a magistrate is entitled to its protection. I appeal to the noble judge, and to every man who hears me, for the truth and universality of this position. And it would be a strange solecism, indeed, to assert that, in a case where the supreme court of criminal justice in the nation would refuse to interpose an extraordinary though a legal jurisdiction, on the principle that the ordinary execution of the laws should never be exceeded, but for the punishment of malignant guilt, the Commons, in their higher capacity, growing out of the same Constitution, should reject that principle, and stretch them still further by a jurisdiction still more eccentric. Many impeachments have taken place, because the law could not adequately punish the objects of them; but who ever heard of one being set on foot because the law, upon principle, would not punish them? Many

so many pages, without even the imputation of an incorrect or intemperate expression, except in the concluding passage (the meaning of which I trust I have explained), goes on with the same earnest disposition to the discussion of the second charge respecting the princesses of Oude, which occupies eighteen pages, not one syllable of which the Attorney General has read, and on which there is not even a glance at the House of Commons. The whole of this answer is, indeed, so far from being a mere cloak for the introduction of slander, that I aver it to be one of the most masterly pieces of writing I ever read in my life. From thence he goes on to the charge of contracts and salaries, which occupies five pages more, in which there is not a glance at the House of Commons, nor a word read by the Attorney General. He aft erward defends Mr. Hastings against the charges respecting the opium contracts. Not a glance at the House of Commons; not a word by the Attor ney General. And, in short, in this manner he goes on with the others, to the end of the book.

Now, is it possible for any human being to believe that a man, having no other intention than to vilify the House of Commons (as this information charges), should yet keep his mind thus fixed and settled as the needle to the pole, upon the serious merits of Mr. Hastings's defense, without ever straying into matter even questionable, except in the two or three selected parts out of two or three hundred pages? This is a forbearance which could not have existed, if calumny and detraction had been the malignant objects which led him to the inquiry and publication. The whole fallacy, therefore, arises from holding up to view a few detached passages, and carefully concealing the general tenor of the book.

Having now finished most, if not all of these critical observations, which it has been my duty to make upon this unfair mode 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 mode-no 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 deable 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 his work, by reading the whole that remains of it. But my voice is already nearly exhausted; I am sorry my client should be a sufferer by my infirmity. One passage, however, is too striking and important to be passed over; the rest I must trust to your private examination. The author having discussed all the charges, article by article, sums them all up with this striking appeal to his readers:

which may be considered by many as hostile to the impeachment. For if our dependencies have been secured, and their interests promoted, I am driven, in the defense of my client, to remark, that it is mad and preposterous to bring to the standard of justice and humanity the exercise of a dominion founded upon violence and terror. It may and must be true that Mr. Hastings has repeatedly offended against the rights and privileges of 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."1 he had protected and extended."

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Gentlemen of the jury-if this be a willfully 11 Mr. Hastings was unquestionably guilty of nearCollateral defense false account of the instructions giv-ly all the acts charged upon him by Mr. Burke. Still

of Mr. Hastings.

it was felt by the court, and at last by the public at en to Mr. Hastings for his government, and of his conduct under them, the author large, that great allowance ought to be made for him when it was remembered that he 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 lust of ambition and dominion, will insist Chief. 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 of the waters, and gave ours to us; and by this title we will defend it," said the warrior, throwing down his tomahawk upon the ground, and raising the war-sound of his nation. These are the feelings of subjugated man all round the globe; and depend upon it, nothing but fear will control where it is vain to look for affection.12

ing the commands of God, and the breach of them as only punishable when contrary to the ordinances of man?

Such a proceeding, gentlemen, begets serious reflection. It would be better, perhaps, for the masters and the servants of all such governments to join in supplication, that the great Author of violated humanity may not confound them totogether in one common judgment.

Gentlemen, I find, as I said before, I have not sufficient strength to go on with the remaining parts of the book. I hope, however, that notwithstanding my omissions, you are now completely satisfied that, whatever errors or misconceptions may have misled the writer of these pages, the justification of a person whom he believed to be innocent, and whose accusers had themselves appealed to the public, was the sin

ceeded in that object, every purpose which I had in addressing you has been answered.

These reflections are the only antidotes those anathemas of superhuman eloquence which have lately shaken these walls that surround us, but which it unaccountably falls to my province, whether I will or no, a little to stem the torrent of, by reminding you that you have a mighty sway in Asia, which can not be maintained by the finer sympathies of life, or the practice of its charities and affections. What will they do for you when surrounded by two hundred thousand men with artillery, cavalry, and elephants, call-gle object of his contemplation. If I have sucing upon you for their dominions which you have robbed them of? Justice may, no doubt, in such a case forbid the levying of a fine to pay a revolting soldiery; a treaty may stand in the way of increasing a tribute to keep up the very ex-ly pressed upon you, and, no doubt, was honest in istence of the government; and delicacy for will be insisted on in reply. You will women may forbid all entrance into a Zenana be told that the matters which I have |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 ronage of literature and the fine arts.

12 The reader will be struck with the rapid flow of the rhythmus in this speech of the Indian chief, so admirably corresponding in its iambic structure with the character of the speaker. It should be read aloud in connection with a correspondent passage of Mr. Grattan, already remarked upon for its slow and majestic movement. See page 390.

It only now remains to remind you that another consideration has been strong- If the writer

his intentions,

he ought not for an occa

to be pauished

sional excess.

would answer (still protesting as I do against the application of any one of the innuendoes), that if you are firmly persuaded of the singleness and purity of the author's intentions, you

13 See introduction to Mr. Sheridan's speech, p.

405-6.

ciple as to the

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 his pen into an intemperate expression in one or two instances of a long work. If this severe duty were binding on your consciences, the liberty of the press would be an empty sound, and no man could venture to write on any subject, however pure his purpose, without an attorney at one elbow and a counsel at the other.

severe a restriction on the press.

From minds thus subdued by the terrors of Evils of too punishment, there could issue no works of genius to expand the empire of human reason, nor any masterly compositions on the general nature of government, by the help of which the great commonwealths of mankind have founded their establishments; much less any of those useful applications of them to critical conjunctures, by which, from time to time, our own Constitution, by the exertion of patriot citizens, has been brought back to its standard. Under such terrors, all the great lights of science and civilization must be extinguished; for men can not communicate their free thoughts to one another with a lash held over their heads. It is the nature of every thing that is great and useful, both in the animate and inanimate world, to be wild and irregular, and we must be contented to take them with the alloys which belong to them, or live without them. Genius breaks from the fetters of criticism, but its wanderings are sanctioned by its majesty and wisdom when it advances in its path: subject it to the critic, and you tame it into dullness. Mighty rivers break down their banks in the winter, sweeping away to death the flocks which are fattened on the soil that they fertilize in the summer the few may be saved by embankments from drowning, but the flock must perish for hunger. Tempests occasionally shake our dwellings and dissipate our commerce; but they scourge before them the lazy elements, which without them would stagnate into pestilence.14 In like manner, Liberty herself, the last and best gift of God to his creatures, must be taken just as she is you might pare her down into bashful regularity, and shape her into a perfect model of severe, scrupulous law, but she would then be Liberty no longer; and you must be content to die under the lash of this inexorable justice

If it be asked where the line to this indulgence and impunity is to be drawn, the an- General prinswer is easy. The liberty of the press, liberty of the on general subjects, comprehends and press. implies as much strict observance of positive law as is consistent with perfect purity of intention, and equal and useful society. What that latitude is, can not be promulgated in the abstract, but must be judged of in the particular instance, and consequently, upon this occasion, must be judged of by you, without forming any possible precedent for any other case; and where can the judgment be possibly so safe as with the members of that society which alone can suffer, if the writing is calculated to do mischief to the public? You must, therefore, try the book by that criterion, and say whether the publication was premature and offensive, or, in other words, whether the publisher is bound to have suppressed it until the public ear was anticipated and abused, and every avenue to the human heart or understanding secured and blocked up? I see around me those by whom, by-and-by, Mr. Hastings will be most ably and eloquently defended;15 but I am sorry to remind my friends that, but for the right of suspending the public judgment concerning him till their season of exertion comes round, the tongues of angels would be insufficient for the task.

Gentlemen, I hope I have now performed my duty to my client: I sincerely hope that I have; for, certainly, if ever there was a man pulled the other way by his interests and affections-if ever there was a man who should have trembled at the situation in which I have been placed on this occasion, it is myself, who not only love, honor, and respect, but whose future hopes and preferments are linked, from free choice, with those who, from the mistakes of the author, are treated with great severity and injustice. These are strong retardments; but I have been urged on to activity by considerations which can never be inconsistent with honorable attachments, either in the political or social world-the love of justice and of liberty, and a zeal for the Constitution of my country, which is the inheritance of our posterity, of the public, and of the world. These are the motives which have animated me in defense of this person, who is an entire stran

my life.

14 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. The seminal idea was probably suggested by a remark of Burke, whose writings Mr. Erskine incessantly studied. "It is the nature of all greatness not to be exact."-See page 252. We see in this case, how a man of genius may borrow from anoth

er, without detracting in the least from the fresh

ness and originality with which his ideas are expressed and applied. At the present day, there can be very little of that originality which presents an idea for the first time. All that can be expected is, that we make it our own, and apply it to new purposes.

be observed in

One word more, gentlemen, and I have done. Every human tribunal ought to take A regard to hucare to administer justice, as we look man frailty to hereafter to have justice administered administering which the Attorney General prays sentence upon to ourselves. Upon the principle on my client-God have mercy upon us! of standing before him in judgment with the

justice.

Instead

15 Mr. Law (afterward Lord Ellenborough), Mr. 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 existing to do with that, nor any right to consider it. ence, by which faults may be sometimes found to have grown out of virtues, and very many of our heaviest offenses to have been grafted by human imperfection upon the best and kindest of our affections. No, gentlemen, believe me, this is not the course of divine justice, or there is no truth in the Gospels of Heaven. If the general tenor of a man's conduct be such as I have represented it, he may walk through the shadow of death, with all his faults about him, with as much cheerfulness as in the common paths of life; because he knows that, instead of a stern accuser to expose before the Author of his nature those frail passages which, like the scored matter in the book before you, checkers the volume of the brightest and best-spent life, his mercy will obscure them from the eye of his purity, and our repentance blot them out forever.

All this would, I admit, be perfectly foreign and irrelevant, if you were sitting here in a case of property between man and man, where a strict rule of law must operate, or there would be an end of civil life and society. It would be equally foreign, and still more irrelevant, if applied to those shameful attacks upon private reputation which are the bane and disgrace of the press;

We are trying whether the public could have been considered as offended and endangered if Mr. Hastings himself, in whose place the author and publisher have a right to put themselves, had, under all the circumstances which have been considered, composed and published the volume under examination. That question can not, in common sense, be any thing resembling a question of LAW, but is a pure question of FACT, to be decided on the principles which I have humbly recommended. I, therefore, ask of the court that the book itself may now be delivered to you. Read it with attention, and as you shall find it, pronounce your verdict.

This trial took place before the passing of Mr Fox's Libel Bill; and Lord Kenyon charged the jury that they were not to consider whether the pamphlet was libelous, but simply whether it had been published by the defendant. Under these circumstances, they spent two hours in deliberation, but finally broke through the instructions of the court, and found the defendant NOT GUILTY, thus anticipating the rights soon after secured to 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 his 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 him, "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,

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