"Cheered by this good omen," says Lord Campbell, "Erskine went home, and, after a short repose, arranged the materials of 'a speech which will last forever.' He began at two o'clock on Saturday afternoon, and spoke seven hours-a period that seemed very short to his hearers, and in reality was so, considering the subjects he had to deal with, and the constitutional learning, powerful reasoning, the wit, and the eloquence which he condensed into it. This wonderful performance must be studied as a whole by all who are capable of understanding its merits; for the enunciation of principles is so connected with the inferences to be drawn from the evidence, and there is such an artful, though seemingly natural saccession of topics, to call for the pity and the indignation of the jury-to captivate their affections and to convince their understandings-that the full beauty of detached passages can not be properly appreciated."

Thanks to the

jury for their indulgence.

ness.

stowed on the Constitution are

merited only as it secures equal and impartial justice.

SPEECH, &c.

GENTLEMEN OF THE JURY,-Before I proceed | have occasion to reflect a little upon its probable to the performance of the momentous causes; but, waiting a season for such reflections, duty which is at length cast upon me, let us first consider what the evil is which has I desire, in the first place, to return been so feelingly lamented as having fallen on my thanks to the judges for the indulgence I have that unhappy country. It is, that under the doreceived in the opportunity of addressing you at minion of a barbarous state necessity, every prothis later period of the day than the ordinary sit- tection of law is abrogated and destroyed. It ting of the court, when I have had the refresh- is, that no man can say, under such a system of ment which nature but too much required, and a alarm and terror, that his life, his liberty, his repfew hours' retirement, to arrange a little in my utation, or any one human blessing, is secure to mind that immense matter, the result of which I him for a moment. It is, that if accused of fedmust now endeavor to lay before you. I have to eralism, or moderatism, or incivism, or of whatthank you, also, gentlemen, for the very conde- ever else the changing fashions and factions of scending and obliging manner in which you so the day shall have lifted up into high treason readily consented to this accommodation. The against the state, he must see his friends, his court could only speak for itself, referring me to family, and the light of heaven no more: the acyou, whose rest and comfort had been so long in- cusation and the sentence being the same, folterrupted. I shall always remember your kind- lowing one another as the thunder pursues the flash. Such has been the state of Englandsuch is the state of France; and how, then, since they are introduced to you for application, ought they, in reason and sobriety, to be applied? ~ If this prosecution has been commenced (as is asserted) to avert from Great Britain the calamities incident to civil confusion, leading in its issues to the deplorable condition of France, I call upon you, gentlemen, to avert such calamity from falling upon my client, and, through his side, upon yourselves and upon our country. Let not him suffer under vague expositions of tyrannical laws, more tyrannically executed. Let not him be hurried away to predoomed execution, from an honest enthusiasm for the public safety. I ask for him a trial by this applauded Constitution of our country. I call upon you to administer the law to him, according to our own wholesome institutions, by its strict and rigid letter. However you may eventually disapprove of any part of his conduct, or, viewing it through a false medium, may think it even wicked, I claim for him, as a subject of England, that the law shall decide upon its criminal denomination. I protest, in his name, against all appeals to speculations concerning consequences, when the law commands us to look only to intentions. If the state be threatened with evils, let Parliament administer a prospective remedy, but let the prisoner hold his life under the law.'

Before I advance to the regular consideration The praises be of this great cause, either as it regards the evidence or the law, I wish first to put aside all that I find in the speech of my learned friend, the Attorney General, which is either collateral to the merits, or in which I can agree with him. First, then, IN THE NAME OF THE PRISONER, and speaking his sentiments, which are well known to be my own also, I concur in the eulogium which you have heard upon the Constitution of our wise forefathers. But before this eulogium can have any just or useful application, we ought to reflect upon what it is which entitles this Constitution to the praise so justly bestowed upon it. To say nothing at present of its most essential excellence, or rather the very soul of it, viz., the share the people ought to have in their government, by a pure representation, for the assertion of which the prisoner stands arraigned as a traitor before you what is it that distinguishes the government of England from the most despotic monarchies? What but the security which the subject enjoys in a trial and judgment by his equals; rendered doubly secure as being part of a system of law which no expediency can warp, and which no power can abuse with impunity.

French Revolu

The Attorney General's second preliminary The evils of the observation I equally agree to. I tion a warning anxiously wish with him that you laws to the injury may bear in memory the anarchy of private right. which is desolating France. Before I sit down, I may, perhaps, in my turn,

not to stretch the

1 Nothing could be more admirable than the turn given in this exordium to the remarks of the Attorney General. The prisoner and his eleven companions were in great danger of being sacrificed to the dread of French principles. The jury, though

Gentlemen, I ask this solemnly of the court, power, and government thereof." This is the whose justice I am persuaded will afford it to first and great leading overt act in the indictme. I ask it more emphatically of you, the ment. And you observe that it is not charged jury, who are called upon your oaths to make a as being treason substantively and in itself, but true deliverance of your countryman from this only as it is committed in pursuance of the treacharge. But lastly, and chiefly, I implore it of son against the King's person, antecedently imHim in whose hands are all the issues of life-puted. For the charge is not, that the prisoners whose humane and merciful eye expands itself conspired to assemble a convention to depose the over all the transactions of mankind; at whose King, but that they conspired and compassed his command nations rise and fall, and are regener-death, and that, in order to accomplish that wickated; without whom not a sparrow falleth to the ground-I implore it of God himself, that He will fill your minds with the spirit of justice and of truth, so that you may be able to find your way through the labyrinth of matter laid before youa labyrinth in which no man's life was ever before involved in the annals of British trial, nor, indeed, in the whole history of human justice or injustice.

A conspiracy

the natural death of the King.

The indictment charges that the prisoners did Crime alleged. maliciously and traitorously conspire, to bring about compass, and imagine, "to bring and put our Lord the King to death." And that to fulfill, perfect, and bring to effect their most evil and wicked purpose (that is to say, of bringing and putting the King to death), "they met, conspired, consulted, and agreed among themselves, and other false traitors unknown, to cause and procure a convention to be assembled within the kingdom, with intent" (I am reading the very words of the indictment, which I entreat you to follow in the notes you have been taking with such honest perseverance) -"with intent, and in order that the persons so assembled at such convention, should and might traitorously, and in defiance of the authority, and against the will of Parliament, subvert and alter, and cause to be subverted and altered, the Legislature, rule, and government of the country, and to depose the King from the royal state, title,

gentlemen of high intelligence and respectability, were zealous adherents of the ministry, and committed to the support of their measures as members of the Loyal Associations of the metropolis. Most of the evidence for the Crown had been previously

published, and undoubtedly read by the jury under circumstances calculated to produce the worst impressions on their minds. The subject had been brought before Parliament by Mr. Pitt. The case had been prejudged; a conspiracy had been charged on the prisoner and his companions by an act of Parliament; and the Habeas Corpus Act had act ually been suspended through fear of this conspiracy! Under these circumstances, it seemed hardly possible for any jury to give the prisoner a fair hear ing. This accounts for the extreme anxiety manifested by Mr. Erskine throughout the whole of this speech. The lives of eleven others besides the prisoner were suspended on the issue of this one argu These considerations will induce the reader to follow Mr. Erskine, with unwonted interest, through all the windings of this intricate case.

ment.

ed and detestable purpose (i. e., in order to fulfill the traitorous intention of the mind against his life), they conspired to assemble a convention with a view to depose him. The same observation applies alike to all the other counts or overt acts upon the record, which manifestly, indeed, lean upon the establishment of the first for their support. They charge the publication of different writings, and the provision of arms, not as distinct offenses, but as acts done to excite to the assembling of the same convention, and to maintain it when assembled; but, above all, and which must never be forgotten, because they also uniformly charge these different acts as committed in fulfillment of the same traitorous purpose, to BRING THE KING TO DEATH. You will, therefore, have three distinct matters for consideration upon this trial; First. What share (if any) the prisoner had, in concert with others, in assembling any convention, or meeting of subjects within this kingdom; Second. What were the acts to be done by this convention when assembled; and, Third. What was the view, purpose, and intention of those who projected its existence This third consideration, indeed, comprehends, or rather precedes and swallows up the other two. Because, before it can be material to decide upon the views of the convention, as pointed to the subversion of the rule and order of the King's political authority (even if such views could be ascribed to it, and brought home even personally to the prisoner), we shall have to examine whether that criminal conspiracy against the established order of the community was hatched and engendered by a wicked contemplation to destroy the natural life and person of the King, and whether the acts charged and established by the evidence were done in pursuance and in fulfillment of the same traitorous purpose.

2 Here Mr. Erskine takes his first stand, and gives us the foundation of the entire legal argument which follows. There were two kinds of treason-one the "compassing the King's death," and the other "levying war to depose him." Now the indictment had charged the former on the prisoner; and although it had also mentioned the latter, this became subordinate to the former; so that the thing to be proved against the prisoners was, that in the alleged conspiracy they directly intended to destroy the natural life of the King.

Secondly, that the compassing the King's consciences of the jury.

the case.

ble intention, from overt acts which you find him to have committed, can justify his conviction. That I may keep my word with you in building my argument upon nothing of my own, I hope my friend Mr. Gibbs [his associate in the defense] will have the goodness to call me back if he finds me wandering from my engagement, that I may proceed step by step upon the most venerable and acknowledged authorities of the law.

Lord Hale.

I think them frequently erroneous) are drawn | ous intention against his NATURAL LIFE; and that from the same sources, which I look up to for doc-nothing short of your firm belief of that detestatrines so very different. I find, indeed, throughout the whole range of authorities (I mean those which the Attorney General has properly considered as deserving that name and character) very little contradiction. As far as I can discover, much more entanglement has arisen from now and then a tripping in the expression, than from any difference of sentiment among eminent and virtuous judges, who have either examined or sat in judgment upon this momentous subject. Gentlemen, before I pursue the course I have In this process I shall begin with Lord Hale, A very wide field prescribed to myself, I desire most who opens this important subject by Evidence from of argument open distinctly to be understood, that in stating the reason of passing the stat- authorities: ed by the peculiar circumstances of my own judgment the most suc- ute of the twenty-fifth of Edward the cessful argument that a conspiracy Third, on which the indictment is founded. Lord to depose the King does not necessarily establish Hale says, in his Pleas of the Crown (vol. i., page the treason charged upon this record, is totally 82), that "at common law there was a great beside any possible judgment that you can have latitude used in raising offenses to the crime and to form upon the evidence before you. The punishment of treason, by way of interpretation truth is, throughout the whole volumes [of evi- and arbitrary construction, which brought in dence] that have been read, I can trace nothing great uncertainty and confusion. Thus, acthat even points to the imagination of such a croaching (i. e., encroaching on) royal power, conspiracy; and, consequently, the doctrines of was a usual charge of treason anciently, though Coke, Hale, and Foster, on the subject of high a very uncertain charge; so that no man could treason, might equally be detailed in any other tell what it was, or what defense to make to it." trial that has ever been proceeded upon in this Lord Hale then goes on to state various instanplace. But, gentlemen, I stand in a fearful and ces of vexation and cruelty, and concludes with delicate situation. As a supposed attack upon this striking observation: "By these and the the King's civil authority has been transmuted, like instances that might be given, it appears by construction, into a murderous conspiracy how arbitrary and uncertain the law of treason against his natural person, in the same manner, was before the statute of twenty-fifth of Edward and by the same arguments, a conspiracy to the Third, whereby it came to pass that almost overturn that civil authority by direct force has every offense that was, or seemed to be, a breach again been assimilated, by further construction, of the faith and allegiance due to the King, was to a design to undermine monarchy by changes by construction, consequence, and interpretation, wrought through public opinion, enlarging grad- raised into the offense of high treason." This is ually into universal will; so that I can admit no the lamentation of the great Hale upon the state false proposition, however aside I may think it of this country previous to the passing of the from rational application. For as there is a con- statute, which, he says, was passed as a remestructive compassing, so also there is construct-dial law, to put an end to them. And Lord Coke, ive deposing; and I can not, therefore, possibly know what either of them is separately, nor how the one may be argued to involve the other. There are, besides, many prisoners whose cases are behind, and whose lives may be involved in your present deliberation; their names have been already stigmatized, and their conduct arraigned in the evidence you have heard, as a part of the conspiracy. It is these considerations which drive me into so large a field of argument, because, by sufficiently ascertaining the law in the outset, they who are yet looking up to it for protection may not be brought into peril.

considering it in the same light, says, in his third Institute, page 2, "The Parliament which passed this statute was called (as it well deserved) Parliamentum Benedictum; and the like honor was given to it by the different statutes which from time to time brought back treasons to its standard, all agreeing in magnifying and extolling this blessed act." Now this statute, which has obtained the panegyric of these great men, whom the Chief Justice in his charge looked up to for light and for example, and whom the Attorney General takes also for his guide, would very little have deserved the high eulogium beGentlemen, I now proceed to establish, that a stowed upon it, if, though avowedly passed to compassing of the death of the King, within the destroy uncertainty in criminal justice, and to twenty-fifth of Edward the Third, which is the beat down the arbitrary constructions of judges, charge against the prisoner, consists in a traitor- lamented by Hale as disfiguring and dishonorHere Mr. Erskine throws out, in passing, a refed as to give birth to new constructions and uning the law, it had, nevertheless, been so word

erence to the explanation which he intends to give of the apparent contradiction of the books to his positions as here laid above. Nothing is more remark. able than the dexterity with which he thus prepares the way for what is coming, and makes his speeches a compacted system of thought.

certainties, instead of destroying the old ones. It would but ill have entitled itself to the denomination of a blessed statute, if it had not, in its enacting letter, which professed to remove doubts, and to ascertain the law, made use of

expressions the best known and understood; and it will be found, accordingly, that it cautiously did so.

words "compassing the

The comm

law use of the its meaning a

phrase shows

the statute.

the anomaly of the offense, which exists wholly in the INTENTION, and not in the overt act, required the preservation of the form of the indictIn selecting the expression of cOMPASSING ment. It is surely impossible to read this comMeaning of the THE DEATH, it employed a term of mentary of Foster without seeing the true purthe most fixed and appropriate sig-pose of the statute. The common law had anKing's death." nification in the language of English ciently considered, even in the case of a fellowlaw, which not only no judge or counsel, but subject, the malignant intention to destroy, as which no attorney or attorney's clerk, could equivalent to the act itself. But that noble spirit misunderstand; because, in former ages, before of humanity which pervades the whole system of the statute compassing the death of any man our jurisprudence, had, before the time of King had been a felony, and what had amounted to Edward the Third, eat out and destroyed this rule, such compassing, had been settled in a thousand too rigorous in its general application; but, as instances. To establish this, and to show also, Foster truly observes in the passage I have read, by no reasoning of mine, that the term com- "This rule, too rigorous in the case of the subject, passing the death" was intended by the statute, the statute of treasons retained in the case of the when applied to the King, as high treason, to King, and retained also the very expression used have the same signification as it had obtained in by the law when compassing the death of a subthe law when applied to the subject as a felony, ject was felony." I shall refer to Mr. Justice Foster, and even to a passage cited by the Attorney General himself, which speaks so unequivocally and unanswerably for itself as to mock all commentary. "The ancient writers," says Foster, "in treating of felonious homicide, considered the felonious intention manifested by plain facts, in the same light, in point of guilt, as homicide itself. The rule was, voluntas reputatur pro facto, and while this rule prevailed, the nature of the offense was expressed by the term compassing the death. This rule has been long laid aside as too rigorous in the case of common persons. But in the case of the King, Queen, and Prince, the statute of treasons has, with great propriety, retained it in its full extent and vigor; and, in describing the offense, has likewise retained the ancient mode of expression, when a man doth 'compass or imagine the death of our Lord the King,' &c., and thereof be upon sufficient proof, provablement, attainted of open deed, by people of his condition: the words of the statute descriptive of the offense, must, therefore, be strictly pursued in every indictment for this species of treason. It must charge that the defendant did traitorously compass and imagine the King's death; and then go on and charge the several acts made use of by the prisoner to effectuate his traitorous purpose. For the compassing the King's death' is the treason, and the overt acts are charged as the means made use of to effectuate the intentions and imaginations of the heart. And, therefore, in the case of the regicides, the indictment charged that they did traitorously compass and imagine the death of the King, and the cutting off the head was laid as the overt act, and the person who was supposed to have given the mortal stroke was convicted on the same indictment."

This concluding instance, though at first view it may appear ridiculous, is well selected as an illustration. Because, though in that case there could be no possible doubt of the intention, since the act of a deliberate execution involves, in common sense, the intention to destroy life, yet still

The will is taken for the deed.

The statute, therefore, being expressly made to remove doubts, and accurately to define treason, adopted the ancient expression of the common law, as applicable to felonious homicide, meaning that the life of the Sovereign should remain an exception, and that voluntas pro facto, the wicked intention for the deed itself (as it regarded his sacred life), should continue for the rule; and, therefore, says Foster, the statute, meaning to retain the law which was before general, retained also the expression. It appears to me, therefore, incontrovertible, not only by the words of the statute itself, but upon the authority of Foster, which I shall follow up by that of Lord Coke and Hale (contradicted by no syllable in their works, as I shall demonstrate), that the statute, as it regarded the security of the King's life, did not mean to enact a new security never known to the common law in other cases; but meant to suffer a common law rule, which formerly existed universally, which was precisely known, but which was too severe in common cases, to remain as an exception in favor of the King's se curity. I do, therefore, positively maintain, not as advocate merely, but in my own person, that, within the letter and meaning of the statute, nothing can be a compassing the death of the King that would not, in ancient times, have been a felony in the case of a subject. For other wise Foster and Coke, as will be seen, are very incorrect when they say the statute retained the old law, and the appropriate word to express it; for if it went beyond it, it would, on the contrary, have been a new rule unknown to the common law, enacted for the first time, for the preserva tion of the King's life. Unquestionably, the Leg islature might have made such a rule; but we are not inquiring what it might have enacted, but what it has enacted. But I ought to ask pardon for having relapsed into any argument of my own upon this subject, when the authorities are more express to the purpose than any language I can use. For Mr. Justice Foster himself expressly says-Discourse 1st, of High Treason, p. 207, "All the words descriptive of the offense, name

Nothing a com

passing the which would not toward a fellow subject

King's death

have been felony