had just abolished its new Constitution of mon- | of justice? Thank God, the world lives very archy, and set up a republic. She was at that differently, or it would not be worth living in. moment divided and in civil confusion on the sub- There are moments when jarring opinions may ject; the question, therefore, and the answer, as be given without inconsistency-when Truth they applied to France, were sensible and rele- herself may be sported with without the breach vant; but to England or to English affairs they of veracity-and where well-imagined nonsense had not (except in the ensnaring sequel) the re- is not only superior to, but is the very index to motest application. Had Yatman, therefore, end- wit and wisdom. I might safely assert-taking, ed here, the conversation would have ended, and too, for the standard of my assertion the most Mr. Frost would have been the next moment in honorably correct and enlightened societies in the street. But still the question is forced upon the kingdom-that if malignant spies were prophim, and he is asked, "What! no Kings in En-erly posted, scarcely a dinner would end without gland?" although his first answer had no con- a duel and an indictment. nection with England; the question, therefore, was self-evidently a snare, to which he answered, "No Kings in England;" which seemed to be all that was wanted, for in a moment every thing was confusion and uproar. Mr. Frost, who had neither delivered nor meant to deliver any serious opinion concerning government, and finding himself injuriously set upon, wished, as was most natural, to explain himself, by stating to those around him what I have been just stating to you. But all in vain; they were in pursuit of the immortal fame of the very business we are engaged in at this moment, and were resolved to hold their advantage. His voice was immediately drowned by the clamors of insult and brutality; he was baited on all sides like a bull, and left the coffeehouse without the possibility of being heard either in explanation or defense. An indictment was immediately preferred against him, and from that moment the public ear has been grossly and wickedly abused upon the subject, his character shamefully calumniated, and his cause prejudged before the day of trial. To accuse under ces destructive Such a When I came down this morning, and found, contrary to my expectation, that we Illustration from were to be stuffed into this misera- case supposed ble hole in the wall," to consume our constitutions: suppose I had muttered along through the gloomy passages-"What, is this cursed trial of Hastings going on again? Are we to have no respite? Are we to die of the asthma in this damned corner? I wish to God that the roof would come down and abate the impeachment, Lords, Commons, and all together." wish, proceeding from the mind, would be desperate wickedness, and the serious expression of it a high and criminal contempt of Parliament. Perhaps the bare utterance of such words, even without meaning, would be irreverent and foolish. But still, if such expressions had been gravely imputed to me as the result of a malignant mind, seeking the destruction of the Lords and Commons of England, how would they have been treated in the House of Commons on a motion for my expulsion? How! The witness would have been laughed out of the House before he had half Gentlemen it is impossible for me to form any finished his evidence, and would have been voted other judgment of the impression to be too great a blockhead to deserve a worse such circumstan which such a proceeding altogether character. Many things are, indeed, wrong and of all human-con- is likely to make upon your minds, reprehensible, that neither do nor can become the but from that which it makes upon objects of criminal justice, because the happiness my own. In the first place, is society to be pro-and security of social life, which are the very tected by the breach of those confidences, and in the destruction of that security and tranquillity which constitute its very essence every where, but which, till of late, most emphatically characterized the life of an Englishman? Is government to derive dignity and safety by means which render it impossible for any man who has the least spark of honor to step forward to serve it? Is the time come when obedience to the law and correctness of conduct are not a sufficient protection to the subject, but that he must measure his steps, select his expressions, and adjust his very looks in the most common and private intercourses of life? Must an English gentleman in future fill his wine by a measure, lest, in the openness of his soul, and while believing his neighbors are joining with him in that happy relaxation and freedom of thought which is the prime blessing of life, he should find his character blasted, and his person in a prison? Does any man put such constraint upon himself in the most private moment of his life, that he would be contented to have his loosest and lightest words recorded, and set in array against him in a court fideuce. end and object of all law and justice, forbid the communication of them; because the spirit of a gentleman, which is the most refined morality, either shuts men's ears against what should not be heard, or closes their lips with the sacred seal of honor. danger from l This tacit but well-understood and delightful compact of social life is perfectly con- society in no sistent with its safety. The security on this of free governments, and the unsus subject. pecting confidence of every man who lives under them, are not only compatible, but inseparable. It is easy to distinguish where the public duty calls for the violation of the private one. Crimi inal intention, but not indecent levities—not even grave opinions unconnected with conduct, are to be exposed to the magistrate; and when men (which happens but seldom), without the honor or the sense to make the due distinctions, force complaints upon governments which they can neither approve of nor refuse to act upon, it becomes the 11 The King's Bench sat in the small Court of Common Pleas. office of juries-as it is yours to-day-to draw | ets without a warrant founded upon complaint. the true line in their judgments, measuring men's conduct by the safe standards of human life and experience. Gentlemen, the misery and disgrace of society, under the lash of informers, running before the law and hunting men through the privacies of domestic life, is described by a celebrated speaker [Mr. Burke] with such force and beauty of eloquence, that I will close my observations on this part of the subject by repeating what can not, I am persuaded, be uttered among Englishmen without sinking deep into their hearts: "A mercenary informer knows no distinction. Under such a system, the obnoxious people are slaves, not only to the government, but they live at the mercy of every individual; they are at once the slaves of the whole community and or every part of it; and the worst and most unmerciful men are those on whose goodness they must depend. In this situation men not only shrink from the frowns of a stern magistrate, but are obliged to fly from their very species. The seeds of destruction are sown in civil intercourse, and in social habitudes. The blood of wholesome kindred is infected. Their tables and beds are surrounded with snares. All the means given by Providence to make life safe and comfortable are perverted into instruments of terror and torment. This species of universal subserviency, that makes the very serv ant who waits behind your chair the arbiter of your life and fortune, has such a tendency to degrade and abase mankind, and to deprive them of that assured and liberal state of mind which alone can make us what we ought to be, that I vow to God, I would sooner bring myself to put a man to immediate death for opinions I disliked, and so to get rid of the man and his opinions at once, than to fret him with a feverish being, tainted with the jail distemper of a contagious servitude, to keep him above ground, an animated mass of putrefaction, corrupted himself, and corrupting all about him."12 Evidence of this sions of law. Constructed by man to regulate human infirmi- Of this the act of Queen Anne, 13 which made it high treason to deny the right of Parliament to alter the succession, is a striking example. The hereditary descent of the Crown had been recently broken at the Revolution by a minority of the nation, with the aid of a foreign force, and a new inheritance had been created by the authority of the new establishment, which had but just established itself. Queen Anne's title, and the peaceable settlement of the kingdom under it, depended wholly upon the constitutional power of Parliament to make this change. The superstitions of the world and reverence for antiquity, which deserves a better name, were against this power and the use which had been made of it; the dethroned King of England was living in hostile state at our very doors, supported by a powerful monarch at the head of a rival nation-and our own kingdom itself full of factious plots and conspiracies, which soon after showed themselves in open rebellion. If ever, therefore, there was a season when a narrow jealousy could have been excusable in a government-if ever there was a time when the sacrifice of some private liberty to common se If these sentiments apply so justly to the rep-curity would have been prudent in a people, it All private espionage pecul iarly adverse to tions. robation of persecution for opinions was at such a conjuncture. Yet mark the re-even for opinions which the laws, serve of the crown, and the prudence of our anEnglish institu- however absurdly, inhibit-for opin- cestors in the wording of the statute. Although ions though certainly and maturely en- the denial of the right of Parliament to alter the tertained-though publicly professed, and though succession was tantamount to the denial of all followed up by corresponding conduct; how ir- legitimate authority in the kingdom, and might resistibly do they devote to contempt and exe- be considered as a sort of abjuration to the laws, cration all eaves-dropping attacks upon loose con- yet the statute looked at the nature of man, and versations, casual or convivial, more especially to the private security of individuals in society, when proceeding from persons conforming to all while it sought to support the public society the religious and civil institutions of the state, itself. It did not, therefore, dog men into tavunsupported by general and avowed profession, erns and coffee-houses, nor lurk for them at corand not merely unconnected with conduct, but ners, nor watch for them in their domestic enscarcely attended with recollection or conscious- joyments. The act provides, "That every perSuch a vexatious system of inquisition, son who should maliciously, advisedly, and dithe disturber of household peace, began and end-rectly, by writing or printing, affirm that the ed with the Star Chamber. The venerable law of England never knew it. Her noble, dignified, and humane policy soars above the little irregularities of our lives, and disdains to enter our clos ness! 12 See Mr. Burke's speech at Bristol, page 301. Y Y Queen was not the rightful Queen of these realms, or that the Pretender had any right or title to the Crown, or that any other person had any right or title, otherwise than according to 13 Sixth Anne, c. 7. the acts passed since the Revolution for settling the succession, or that the Legislature hath not sufficient authority to make laws for limiting the succession, should be guilty of high treason, and suffer as a traitor;" and then enacts, "That if any person shall maliciously, and directly, by preaching, teaching, or advised speaking, declare and maintain the same, he shall incur the penalties of a pramunire." of Foster, are transient and fleeting, upon a footing with deliberate conduct, that the criminating letter of the law itself interposes the check, and excludes the danger of a rash judgment, by curiously selecting from the whole circle of language an expression which can not be mistaken; for nothing said upon the sudden, without the evidence of a context, and sequel in thought or conduct, can in common sense deserve the title of advised speaking. Try the matter before you upon the principle of the statute of Queen Anne, and examine it with the caution of Foster. Supposing, then, that instead of the words im ples to the "I will make a short observation or two," Remarks says Foster, "on the act. First. The of Foster. positions condemned by them had as direct a tendency to involve these nations in the miseries of an intestine war, to incite her Maj-puted by this record, the defendant, Application of esty's subjects to withdraw their allegiance from her, and to deprive her of her crown and royal dignity, as any general doctrine, any declaration not relative to actions or designs, could possibly have; and yet in the case of bare words, positions of this dangerous tendency, though maintained maliciously, advisedly, and directly, and even in the solemnities of preaching and teaching, are not considered as overt acts of treason. "Secondly. In no case can a man be argued into the penalties of the act by inferences and conclusions drawn from what he hath affirmed; the criminal position must be directly maintained to bring him within the compass of the act. "Thirdly. Nor will every rash, hasty, or unguarded expression, owing, perhaps, to natural warmth, or thrown out in the heat of disputation, render any person criminal within the act; the criminal doctrine must be maintained maliciously and advisedly." coming half drunk through this coffee- these princehouse, had, in his conversation with present case. Yatman, denied the right of Parliament to alter the succession, could he have been adjudged to suffer death for high treason under the statute of Queen Anne? Reason and humanity equally revolt at the position, and yet the decision asked from you is precisely that decision. For if you could not have found [his language] “advised speaking" to bring it within that statute of treason, so neither can you find it as the necessary evidence of the intention charged by the present indictment, which intention constitutes the misde meanor. If any thing were wanting to confirm these principles of the law and the commentaries of its ablest judges, as applicable to words—it is in another way emphatically furnished by the instance before us. In the zeal of these coffee-house politicians to preserve the defendant's expressions, they were instantly to be put down in writing, and signed by the persons present. Yet the paper read by Colonel Bullock,1 and written, as he tells you, at the very moment with that intention, contains hardly a single word, from the beginning to the end of it, either in meaning or expression, the same as has been related by the witness He afterward adds, "Seditious writings are permanent things, and if published, they scatter the poison far and wide. They are acts of deliberation, capable of satisfactory proof, and not ordinarily liable to misconstruction; at least, they are submitted to the judgment of the court, naked and undisguised, as they came out of the author's hands. Words are transient and fleet-es. ing as the wind; the poison they scatter is, at the worst, confined to the narrow circle of a few hearers; they are frequently the effect of a sudden transport, easily misunderstood, and often misreported." His principles Gentlemen, these distinctions, like all the dictates of sound policy, are as obvious founded in the to reason as they are salutary in nature of things. practice. What a man writes that is criminal and pernicious, and what he disseminates when written, is conclusive of his purpose. He manifestly must have deliberated on what he wrote, and the distribution is also an act of deliberation. Intention in such cases is not, therefore, matter of legal proof, but of reasonable inference, unless the accused, by proof on his side, can rebut what reason must otherwise infer: since he who writes to others undoubtedly seeks to bring over other minds to assimilate with his own. So he who advisedly speaks to others upon momentous subjects, may be presumed to have the same intention. Yet so frail is memory-so imperfect are our natures-so dangerous would it be to place words, which, to use the language It sinks, in the first place, the questions put to the defendant, and the whole dialogue, which is the best clue to the business, and records, "that Mr. Frost came into the coffee-house and declared," an expression which he never used, and which wears the color of deliberation, “that he wished to see equality prevail in this country,” another expression, which it is now agreed on all hands he never uttered, and which conveys a very different idea from saying, in answer to an impertinent or taunting question, "Oh yes, I am for equality." I impute nothing at all to Colonel Bullock, who did not appear to me to give his evidence unfairly-he read his paper as he wrote. But this is the very strength of my observation : 14 The paper was as follows: "Percy coffeehouse, 6th of November, 1792. We, the undermentioned, do hereby certify that at about 10 o'clock this evening, Mr. John Frost came into this coffeeclare that he wished to see equality prevail in this room, and did then and in our presence openly decountry, and no King, in a loud and factious way; and upon being asked whether he meant that there should be no King in this country, he answered 'Yes.'" The paper was not signed. for suppose the case had not come for months to trial, the other witnesses (and honestly too) might have let their memories lean on the written evidence, and thus you would have been trying, and perhaps condemning the defendant for speaking words, stripped too of their explanatory concomitants, which it stands confessed at this moment were never spoken at all. fluence of asso purpose of prosecuting in such cases. If Mr. Frost had gone into every coffee-house, from Charing Cross to the Exchange, Prevailing tend lamenting the dangers of popular gov- subject, and encies on this of opposition in Parliament, and wishing, in the suspected quarter, when it is pronounced by persons enjoying every honor from the Crown, and treating the people upon all occasions with suspicion and contempt. The three estates of the kingdom are co-ordinate, all alike representing the dignity, and jointly executing the authority of the nation; yet all our loyalty seems to be wasted upon one of them. How happens it else Gentlemen, the disposition which has of late that we are so exquisitely sensible, so tremblingPernicious in prevailed to depart from the wisely alive to every attack upon the Crown or the ciations for the moderation of our laws and Consti- nobles that surround it, yet so completely careless tution, under the pretext, or from the of what regards the once respected and awful zeal of preserving them, and which Commons of Great Britain? has been the parent of so many prosecutions, is an awful monument of human weakness. These associators to prosecute, who keep watch of late upon our words and upon our looks, are associa-ernment, reprobating the peevishness their danger. ted, it seems, to preserve our excellent Constitution from the contagion of France, where an arbitrary and tyrannous democracy, under the color of popular freedom, destroys all the securities and blessings of life. But how does it destroy them? How, but by the very means that these new partners of executive power would themselves employ, if we would let them-by inflicting, from a mistaken and barbarous state necessity, the severest punishments for offenses never defined by the law-by inflicting them upon suspicion instead of evidence, and in the blind, furious, and indiscriminate zeal of persecution, instead of by the administration of a sober and impartial jurisprudence. Subtracting the horrors of invading armies which France can not help, what other mischief has she inflicted upon herself? From what has she suffered but from this undisciplined and cruel spirit of accusation and rash judgment? A spirit that will look at noth-compounding them into one harmonious whole. ing dispassionately, and which, though proceeding from a zeal and enthusiasm for the most part honest and sincere, is, nevertheless, as pernicious as the wicked fury of demons when it is loosened from the sober dominion of slow and deliberate justice. What is it that has lately united all hearts and voices in lamentation? What but these judicial executions, which we have a right to style murder, when we see the ax falling, and the prison closing upon the genuine expressions of the inoffensive heart-sometimes for private letters to friends, unconnected with conduct or intention sometimes for momentary exclamations in favor of royalty, or some other denomination of government different from that which is established. These are the miseries of France, the unhap-dation of all that we have to fear; yet, instead py attendants upon revolution; and united as we all are in deploring them, upon what principle of common sense shall we vex and terrify the subjects of our own country in the very bosom of peace, and disgust them with the government, which we wish them to cherish, by unusual, irritating, and degrading prosecutions? Indeed, I am very sorry to say that we hear of late too much of the excellence of the British government, and feel but too little of its benefits. They, too, who pronounce its panegyrics, are those who alone prevent the entire public from acceding to them. The eulogium comes from a It embitters the people against authority, which, when they are made to feel and know is but their own security, they must, from the very nature of man, unite to support and cherish. I do not believe that there is any set of men to be named in England-I might say, that I do not know an individual who seriously wishes to touch the Crown, or any branch of our excellent Constitution; and when we hear peevish and disrespectful expressions concerning any of its functions, depend upon it, it proceeds from some practical variance between its theory and its practice. These variances are the fatal springs of disorder and disgust. They lost America, and in that unfortunate separation laid the foun of treading back our steps, we seek recovery in the system which brought us into peril. Let government in England always take care to make its administration correspond with the true spirit of our genuine Constitution, and nothing will ever endanger it. Let it seek to maintain its corruptions by severity and coercion, and neither laws nor arms will support it. These are my sentiments; and I advise you, however unpopular they may be at this moment, to consider them before you repel them. If the defendant, among others, has judged too lightly of the advantages of our government reform his errors by a beneficial experience of moments-that all his words and actions, even them. Above all, let him feel its excellence to- in the most thoughtless passages of his life, are day in its beneficence; let him compare in his fit for the inspection of God and man, he will be trial the condition of an English subject with the fittest person to take the lead in a judgment that of a citizen of France, which he is supposed of "Guilty," and the properest foreman to dein theory to prefer. These are the true crite- liver it with good faith and firmness to the court. rions by which, in the long run, individuals and I know the privilege that belongs to the Atnations become affectionate to governments, or torney General to reply to all that has been said; revolt against them. Men are neither to be but perhaps, as I have called no witnesses, be talked nor written into the belief of happiness may think it a privilege to be waived. It is, and security when they do not practically feel however, pleasant to recollect, that if it should them, nor talked or written out of them when be exercised, even with his superior talents, his they are in the full enjoyment of their blessings: honor and candor will guard it from abuse. but if you condemn the defendant upon this sort of evidence, depend upon it, he must have his adherents, and, as far as that goes, I must be one of them. The Attorney General having exercised his privilege of reply, Lord Kenyon summed up; and the jury, after a consultation of an hour and a half, returned a verdict of "Guilty." Mr. Frost was sentenced to be imprisoned in Newgate six months, to stand one hour in the pillory, and to be struck off the roll of attorneys, whereby he was ruined for life. SPEECH OF MR. ERSKINE FOR MR. BINGHAM ON A TRIAL FOR ADULTERY, DELIVERED IN THE COURT OF KING'S BENCH, FEBRUARY 24, 1794. INTRODUCTION. THIS was almost the only case in which Mr. Erskine ever appeared as counsel for the defendant in a trial of this kind. All his sympathies and feelings were with the bereaved party; and so fervid were bis appeals on such occasions, that in many instances he gained an amount of damages which swept the entire property of the defendant. But the circumstances of this case were so peculiar, that Mr. Erskine felt himself authorized to appear for the defense. Mr. Bingham, afterward the Earl of Lucan, had formed an early attachment for Lady Elizabeth Fauconberg, which was warmly reciprocated by the latter. They were engaged to be married, and had the expectation of an early union, when the match was broken off by her parents in favor of Mr. Howard, afterward the Duke of Norfolk, and she was compelled to marry one whom she regarded with disgust and even abhorrence. She bore him a son within sixteen months after their marriage; but her affections continued to be passionately fixed on Mr. Bingham (who had at first avoided her soci ety); a renewed intercourse gradually sprung up between them; her husband naturally became alienated by the growing hostility of her feelings; and after mutual upbraidings, she left him at the end of four years, and eloped with Mr. Bingham. It was certainly proper that they should now be divorced, especially as she was expected to give birth speedily to a child by the latter; but through a singular anomaly in the English laws, a divorce could be obtained only by Mr. Howard's bringing an action in damages against Mr. Bingham for depriving him of "the comfort and society of his wife!" Mr. Erskine's management of the case was truly admirable. The entire simplicity with which he commences-his disclaimer of all idea of being eloquent, or of making any address to the feelings of the jury -the dry detail of dates with which he enters on the facts of the case, so perfectly suited to do away all suspicion on that subject-his pointed exposure of the opposing counsel's statements without evidence to support them-the vivid picture which he brings before the mind of the ill-fated daughter "given up to the plaintiff by the infatuation of parents, and stretched upon her bridal bed as upon a rack"-the bold burst of passion with which he exclaims, "Mr. Howard was never married"—"he was himself the se ducer"-"imagine my client to be plaintiff, and what damages are you not prepared to give him, and yet he is here as defendant !”—the solemn lessons for the nobility which he deduces from the case, so instructive in themselves, and so peculiarly adapted to strengthen his cause-every thing, in short, conspires to make this speech, though brief, one of the most perfect exhibitions of power over the minds of a jury, to be found in the eloquence of our language. SPEECH, &c. GENTLEMEN OF THE JURY,— My learned | address from me, as counsel for the defendant, friend, as counsel for the plaintiff, has bespoke an which you must not, I assure you, expect to hear. |