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THE DEFENSE OF LORD GORDON

By Thomas Erskine

[Delivered in the Court of King's Bench, before Lord Chief Justice Mansfield and a special jury, 1781.]

The occasion which led to the prosecution of Lord Gordon will be familiar to readers of Dickens' “Barnaby Rudge." Lord Gordon, an enthusiastic young Scottish nobleman, had been chosen president of the Protestant Association, whose object was to procure the repeal of Sir George Saville's act in favor of the Catholics. This statute, which simply relieved the Roman Catholic subjects of England from some of the penalties to which they had long been subject, did not apply to Scotland. The winter following its passage, a movement was begun to extend its provisions to Scotland. This produced tumult in Edinburgh, in which some popish chapels and mass houses were destroyed, and further efforts in this direction were abandoned. A great number of Protestant societies were soon formed in Scotland and in England for the purpose of petitioning parliament to repeal Sir Georgs Saville's act, which was represented at their meetings, and branded in their publications, as fraught with danger to the constitution. Their resolutions and petitions were publicly printed and distributed for several months, with a view to influencing parliament. At length, as president of the London Association, Lord Gordon directed the members to meet him in St. George's Fields, and proceed thence to the parliament house with a petition for the repeal of the bill. Accordingly, on the second of June, 1780, about forty thousand persons, composed mostly of the middle classes, assembled and blocked up all the avenues to the house of commons. They were not armed, and most of them were orderly in their conduct, though individuals among them insulted some members of parliament who were passing into the building, requiring them to put blue cockades on their hats, and to cry, “No popery." Lord Gordon presented the petition, but the house refused, by a vote of 192 to 6, to consider it at that time. The multitude then became disorderly, and the whole affair took a serious turn. Bodies of men proceeded to demolish the Catholic chapels at the residences of the foreign ministers. Desperate men took the lead; the London prisons were broken open and destroyed; thirty-six fires were started at various points during the night; Lord Mansfield's house was destroyed; breweries and distilleries were broken open, and the mob became infuriated with liquor. The government was taken by surprise, and for several days the city was completely in the power of the mob. The militia were at last called in from the country, and the riot put down; not, however, until nearly five hundred persons had been killed or wounded, exclusive of those who perished from the effects of intoxication.

THOMAS (LORD) ERSKINE. Born at Edinburgh, January 10, 1750; educated at St. Andrews University; called to the bar at Lincoln Inn, London, July, 1778; in 1806 was made Lord Chancellor and elevated to the peerage; died at Linlithgowshire, Scotland. November 17, 1823.

Lord Gordon was promptly arraigned for high treason. The trial came on before Chief Justice Mansfield and a special jury in the court of king's bench. The attorney general appeared for the crown. Lloyd Kenyon (afterwards chief justice) and Thomas Erskine represented the defendant. The prosecution contended that the prisoner, in assembling the multitude round the houses of parliament, if he did so with a view to overawe and intimidate the legislature, and enforce his purposes by numbers and violence, was guilty of treason in levying war against the king in his realm, within the statute of treasons of Edward III.,-a doctrine which was fully confirmed by the court. It was contended, moreover, that the overt acts proved might fairly be construed into such a design, being, in fact, the only evidence by which a traitorous design, in such a case, could be shown. After Kenyon had opened the case for the prisoner, Erskine having claimed the privilege of speaking to the whole evidence, the witnesses for the defense were called. The Rev. Mr. Middleton, a member of the Protestant Association, testified to the prisoner's loyalty to the king and attachment to the constitution; that his speeches at the meetings of the association never contained an expression tending directly or indirectly to a repeal of the bill by force; that he desired the people not even to carry sticks in the procession, and begged that riotous persons might be delivered to the constable. Dr. Evans, an eminent surgeon, declared that he saw the prisoner in St. George's Fields, and that his conduct and expressions indicated that he wished and endeavored to prevent all disorder. This was confirmed by others; and it was proved that the bulk of the people around the parliament house and in the lobby were not members of the association, but idlers, vagabonds, and pickpockets, who had thrust themselves in, so that the persons who had insulted the members were of a totally different class from those who formed the original gathering. The Earl of Lonsdale, who took the prisoner home from the house in his carriage, swore that Lord Gordon, in reply to inquiries from the great multitudes surrounding him as to the fate of the petition, answered that it was uncertain, and earnestly entreated them to retire to their homes and be quiet. It was past midnight when the evidence was all in. Erskine then addressed the jury in the following speech. It will be observed that Erskine did not take issue with the authorities as to what constituted treason. "If it had been proved," he said, "that the same multitude, under the direction of Lord George Gordon, had afterwards attacked the bank, broke open the prisons, and set London in a conflagration, I should not now be addressing you." In other words, such acts would have been treason by levying war, and actually were so in the case of those who committed them. The defense was that Lord Gordon had nothing to do with the riots, which were, so far as he was concerned, the unintended and unexpected consequences of his imprudent conduct in putting himself at the head of a mob for the purpose of tumultuous petitioning. And Chief Justice Mansfield charged the jury that, "if this multitude assembled with intent, by acts of force and violence, to compel the legislature to repeal the law, it is high treason." The jury withdrew at three o'clock in the morning, and promptly returned with a verdict of not guilty.' Veeder's "Legal Masterpieces," pp. 44-46.

Gentlemen of THE JURY: Mr. Kenyon having informed the court that we propose to call no other witnesses, it is now my duty to address myself to you as counsel for the noble prisoner at the bar, the whole. 121 Howell, St. Tr. 485.

evidence being closed. I use the word "closed" because it certainly is not finished, since I have been obliged to leave the seat in which I sat to disentangle myself from the volumes of men's names which lay there under my feet, whose testimony, had it been necessary for the defense, would have confirmed all the facts that are already in evidence before you.

Gentlemen, I feel myself entitled to expect, both from you and from the court, the greatest indulgence and attention. I am, indeed, a greater object of your compassion than even my noble friend whom I am defending. He rests secure in conscious innocence, and in the well-placed assurance that it can suffer no stain in your hands. Not so with me. I stand before you a troubled, I am afraid a guilty, man, in having presumed to accept of the awful task which I am now called upon to perform, a task which my learned friend who spoke before me, though he has justly risen, by extraordinary capacity and experience, to the highest rank in his profession, has spoken of with that distrust and diffidence. which becomes every Christian in a cause of blood. If Mr. Kenyon has such feelings, think what mine must be! Alas! gentlemen, who am I? A young man of little experience, unused to the bar of criminal courts, and sinking under the dreadful consciousness of my defects. I have, however, this consolation: that no ignorance nor inattention on my part can possibly prevent you from seeing, under the direction of the judges, that the crown has established no case of treason.

Gentlemen, I did expect that the attorney general, in opening a great and solemn state prosecution, would have at least indulged the advocates for the prisoner with his notions on the law, as applied to the case before you, in less general terms. It is very common, indeed, in little civil actions, to make such obscure introductions by way of trap; but in criminal cases it is unusual and unbecoming, because the right of the crown to reply, even where no witnesses are called by the prisoner, gives it thereby the advantage of replying, without having given scope for observations on the principles of the opening, with which the reply must be consistent.

One observation he has, however, made on the subject, in the truth of which I heartily concur, viz., that the crime of which the noble person at your bar stands accused is the very highest and most atrocious that a member of civil life can possibly commit, because it is not, like all other crimes, merely an injury to society from the breach of some of its reciprocal relations, but is an attempt utterly to dissolve and destroy society altogether.

In nothing, therefore, is the wisdom and justice of our laws so strongly and eminently manifested as in the rigid, accurate, cautious, explicit,

unequivocal definition of what shall constitute this high offense. For, high treason consisting in the breach and dissolution of that allegiance which binds society together, if it were left ambiguous, uncertain, or undefined, all the other laws established for the personal security of the subject would be utterly useless, since this offense, which, from its nature, is so capable of being created and judged of by the rules of political expediency on the spur of the occasion, would be a rod at will. to bruise the most virtuous members of the community whenever virtue might become troublesome or obnoxious to a bad government.

Injuries to the persons and properties of our neighbors, considered as individuals, which are the subjects of all other criminal prosecutions, are not only capable of greater precision, but the powers of the state can be but rarely interested in straining them beyond their legal interpretation. But if treason, where the government is directly offended, were left to the judgment of its ministers, without any boundaries,-nay, without the most broad, distinct, and inviolable boundaries marked out by the law, there could be no public freedom. The condition of an Englishman would be no better than a slave's at the foot of a sultan, since there is little difference whether a man dies by the stroke of a saber, without the forms of a trial, or by the most pompous ceremonies of justice, if the crime could be made at pleasure by the state to fit the fact that was to be tried. Would to God, gentlemen of the jury, that this were an observation of theory alone, and that the page of our history was not blotted with so many melancholy, disgraceful proofs. of its truth! But these proofs, melancholy and disgraceful as they are, have become glorious monuments of the wisdom of our fathers, and ought to be a theme of rejoicing and emulation to us. For, from the mischiefs constantly arising to the state from every extension of the ancient law of treason, the ancient law of treason has been always restored, and the constitution at different periods washed clean, though, unhappily, with the blood of oppressed and innocent men.

When I speak of the ancient law of treason, I mean the venerable statute of King Edward the Third, on which the indictment you are now trying is framed, a statue made, as its preamble sets forth, for the more precise definition of this crime, which has not, by the common. law, been sufficiently explained, and consisting of different and distinct members, the plain unextended letter of which was thought to be a sufficient protection to the person and honor of the sovereign, and an adequate security to the laws committed to his execution. I shall mention only two of the number, the others not being in the remotest degree applicable to the present accusation.

First, to compass or imagine the death of the king; such imagination.

or purpose of the mind (visible only to its great Author) being manifested by some open act; an institution obviously directed, not only to the security of his natural person, but to the stability of the government, since the life of the prince is so interwoven with the constitution of the state that an attempt to destroy the one is justly held to be rebellious conspiracy against the other.

Second (which is the crime charged in the indictment), to levy war against him in his realm,—a term that one would think could require no explanation, nor admit of any ambiguous construction, among men who are willing to read laws according to the plain signification of the language in which they are written, but which has, nevertheless, been an abundant source of that constructive cavil which this sacred and valuable act was made expressly to prevent. The real meaning of this branch of it, as it bottomed in policy, reason, and justice; as it is ordained in plain, unambiguous words; as it is confirmed by the precedents of justice, and illustrated by the writings of the great lights of the law in different ages of our history,-I shall, before I sit down, impress upon your minds as a safe, unerring standard by which to measure the evidence you have heard. At present I shall only say that, far and wide as judicial decisions have strained the construction of levying war beyond the warrant of the statute, to the discontent of some of the greatest ornaments of the profession, they hurt not me. As a citizen I may disapprove of them, but as advocate for the noble person at your bar I need not impeach their authority. For none of them have said more than this: "That war may be levied against the king in his realm, not only by an insurrection to change or to destroy the fundamental constitution of the government itself by rebellious war, but, by the same war, to endeavor to suppress the execution of the laws it has enacted, or to violate and overbear the protection they afford, not to individuals (which is a private wrong), but to any general class or description of the community, by premeditated, open acts of violence, hostility, and force."

Gentlemen, I repeat these words, and call solemnly on the judges to attend to what I say, and to contradict me if I mistake the law: "By premeditated, open acts of violence, hostility, and force,"—nothing equivocal, nothing ambiguous, no intimidations or overawings, which signify nothing precise or certain (because what frightens one man or set of men may have no effect upon another), but that which compels and coerces,-open violence and force.

Gentlemen, this is not only the whole text, but, I submit it to the learned judges, under whose correction I am happy to speak an accurate explanation of the statute of treason, as far as it relates to the present