ance tame, and destitute of the animation which so powerfully characterised his speeches in Westminsterhall. They maintained, that, however resplendent he appeared as an advocate while addressing a jury, he fell to the level of an ordinary man, if not below it, when seated on the ministerial bench, where another species of oratory was demanded to impress conviction or to extort admiration. To me, who, having never witnessed his jurisprudential talents, could not make any such comparison, he appeared to exhibit shining powers of declamation.' On the second reading of the India bill, Mr. Erskine spoke at greater length, and concluded with calling on Mr. Fox to persevere in the measure. my right honourable friend," said he, "go on with firmness, and risk his office at every step he takes, and I will combat, as I now do, by his side, at the hazard of every prospect of ambition. Let him stand upon his own manly, superior understanding, and the integrity of his heart, which I know is ever ready to guide him in the course of his duty, and I will stand for ever by him, and be ready to sink with him in his fall." + "Let Mr. Fox did proceed, risked his office, and lost it; and in the struggles which subsequently took place, Mr. Erskine redeemed his promise of faithfully combating by the side of his leader. The India bill having been rejected in the house of lords, the king ventured to dismiss the ministry, notwithstanding their influence in the commons. Though driven from office, Mr. Fox still continued to command the house of commons, and a dissolution was consequently expected. The administration had been broken up on the 18th of December, and on the following day Mr. Erskine moved an address to the king, praying that his majesty would be pleased not to dissolve his parliament, a motion to which the house agreed. After a short adjournment, Mr. Fox brought forwards a motion on the state of the nation, in which he was ably supported by Mr. Erskine §, who Wraxall's Memoirs, vol. ii. p. 436. Parl. Hist. vol. xxiv. p. 1297. made a fierce attack upon the new minister, and upon that secret influence by which the crown had been swayed. On a subsequent day * he repeated his attack upon Mr. Pitt, ridiculing his junction with Lord Gower and Lord Thurlow. "He said it was an affront to human reason to say that it was inconsistent for the right honourable gentleman to act in concert with the noble lord in the blue riband (Lord North), who was yet in close contact with the more learned Lord Thurlow and the Lord Gower. Though, perhaps, the right honourable gentleman might say that he had arrayed himself with the two last lords, to give the more certain effect to his plan for the reform in the representation of the people; and that, as that great object was the ruling feature of his political life, he had agreed to overlook all lesser differences, to secure that hearty and cordial union which the notorious opinions of these noble persons would be sure to afford him in the cabinet (Laughter).” In the course of the same session, Mr. Erskine opposed Mr. Pitt's India bill, on the second reading.† In the year 1784 Mr. Erskine was called upon to defend the Dean of St. Asaph, who had been indicted for publishing the "Dialogue between a Gentleman and a Farmer," written by Sir William Jones, as already stated in the memoir of that excellent man. ‡ The tract itself was a short and familiar exposition of the principles of government, illustrating, in a forcible manner, the right and duty of resistance, as recognised in the theory of the English constitution. For this publication, which the government declined to notice, an indictment was preferred against the dean, at the instigation of Mr. Fitzmaurice, brother of the late Marquis of Lansdowne, and the case ultimately came on for trial, at the summer assizes for Shrewsbury, in the year 1784. Here, as in the case of Lord George Gordon, Mr. Erskine rested his client's defence upon two great principles: first, that the jury had the right of pronouncing upon the tract, whether it was a libel or no libel; and, secondly, that the + Id. p. 402. Ante, p. 320. Parl. Hist. vol. xxv. p. 313. publication of the tract by the defendant, without any criminal motive, but, on the contrary, with a sincere desire to benefit the country, could not be construed into a libellous publication. With great eloquence also he contended that the Dialogue recommended and enforced only the principles upon which the Revolution was founded, and which had been repeatedly asserted and recognised by all our most celebrated constitutional writers. a mere name, At the commencement of his speech, Mr. Erskine identified himself in principle with the defendant in the following eloquent passage: "This declaration of my own sentiments, even if my friend had not set me the example by giving you his, I should have considered to be my duty in this cause; for although, in ordinary cases, where the private right of the party accused is alone in discussion, and no general consequences can follow from the decision, the advocate and the private man ought in sound discretion to be kept asunder; yet there are occasions when such separation would be treachery and meanness. In a case where the dearest rights of society are involved in the resistance of a prosecution,-where the party accused is, as in this instance, where the whole community is wounded through his sides,—and where the conviction of the private individual is the subversion or surrender of public privileges, the advocate has a more extensive charge;— the duty of the patriot citizen then mixes itself with his obligation to his client; and he disgraces himself, dishonours his profession, and betrays his country, if he does not step forth in his personal character, and vindicate the rights of all his fellow-citizens, which are attacked through the medium of the man he is defending. Gentlemen, I do not mean to shrink from that responsibility upon this occasion; I desire to be considered the fellow-criminal of the defendant, if by your verdict he should be found one, by publishing in advised speaking (which is substantially equal in guilt to the publication that he is accused of before you) my hearty approbation of every sentiment contained in this little book, promising here, in the face of the world, to publish them upon every suitable occasion, amongst that part of the community within the reach of my precept, influence, and example. If there be any more prosecutors of this denomination abroad amongst us, they know how to take advantage of these declarations." When Mr. Justice Buller, who presided at the trial, had summed up, the jury withdrew, and returned in about half an hour, with the verdict- "Guilty of publishing only." Upon this, a long and warm discussion ensued between the judge and Mr. Erskine, as to the mode in which the verdict should be taken. "Mr. Justice Buller. You say he is guilty of publishing the pamphlet, and that the meaning of the innuendoes is as stated in the indictment? "A Juror. Certainly. "Mr. Erskine. Is the word only to stand as part of your verdict? "A Juror. Certainly. "Mr. Erskine. Then I insist it shall be recorded. "Mr. Justice Buller. Then the verdict must be misunderstood. Let me understand the jury. "Mr. Erskine. The jury do understand their verdict. "Mr. Justice Buller. Sir, I will not be interrupted. "Mr. Erskine. I stand here as an advocate for a brother-citizen, and I desire that the word only may be recorded. " "Mr. Justice Buller. Sit down, sir! Remember your duty, or I shall be obliged to proceed in another manner. “Mr. Erskine. Your lordship may proceed in what manner you think fit. I know my duty as well as your lordship knows yours. I shall not alter my conduct. ́ Of this reply his lordship took no notice. Ultimately the verdict of the jury was, that the Dean was guilty of publishing, but whether it was a libel or not they did not find. In the following term Mr. Erskine obtained a rule for a new trial, on the ground of a misdirection of the learned judge, who had told the jury, that the matter for them to decide was, whether the defendant was guilty * of the fact or not; thus excluding from their consideration, according to the practice of the judges at that day, the question of the libellous tendency of the publication. In the course of the same term the rule came on to be argued, and was supported by Mr. Erskine in a speech, which, beyond all contest, displays the most perfect union of argument and eloquence ever exhibited in Westminster-hall. Such was the admiration with which Mr. Fox regarded this speech, that he repeatedly declared, he thought it the finest argument in the English language. When the circumstances under which the speech was delivered are considered, it will appear, without doubt, to be the most extraordinary effort of Mr. Erskine's life. It was not directed to a jury whose prejudices, however strong, he might hope to shake; it was addressed to judges, whose minds he knew to be prepossessed so firmly against him, as to preclude even the most distant expectation of success. It was addressed to Lord Mansfield, who had borne unmoved the bitter invectives of Junius on the same subject, and whose practice of nearly half a century had been in unwearied opposition to the doctrine. It was addressed also to Mr. Justice Buller, whose convictions had already been expressed in the strongest language. In making this appeal to the court, Mr. Erskine met with that most disheartening of all receptions, an indulgent indifference to what appeared to the judges a vain and injudicious attempt to remove the landmarks of the law. He has himself described, in his speech on the trial of Paine, the manner of his reception. "Before that late period, I ventured to maintain this very right of a jury over the question of libel under the same ancient constitution, (I do not mean before the noble judge now present, for the matter was gone to rest in the courts long before he came to sit where he does,) but before a noble and reverend magistrate, of the most exalted understanding, and of the most uncorrupted integrity. He treated me, not with contempt, indeed, for of that his nature was incapable, but he put me * State Trials, vol. xxi. p. 971. (n.) |