CHAP. CLXXVIII. them with a depth of learning which would have done honour to Selden or Hale, while he was animated by an enthusiasm A. D. 1784. which was peculiarly his own. Though appealing to Judges who heard him with aversion or indifference, he was as spirited as if the decision had depended on a favourable jury, whose feelings were entirely under his control. So thoroughly had he mastered the subject, and so clear did he make it, that he captivated alike old black-letter lawyers and statesmen of taste and refinement. Charles Fox was not present in Court, and could not have been carried away by the exciting manner of the advocate; yet having read the second speech delivered in moving to make the rule absolute, he often declared it to be the finest piece of reasoning in the English language. But it made no impression on the Judges. Erskine himself, in his defence of Paine some years afterwards, gives rather a striking description of the manner in which they received it: "I ventured to maintain this very right of a jury over the question of libel under the same ancient constitution, 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 aside with indulgence, as you do a child when it is lisping its prattle out of season." Of the closely-knit arguments and beautiful illustrations which constituted this speech, it would be impossible by extracts to convey an idea. Lord Mansfield, in giving judgment, relied upon the practice that had long prevailed, and mainly upon the words of a ballad made on the acquittal of the "CRAFTSMAN prosecuted by Sir Philip Yorke - which he misquoted saying: "Sir Philip well knows That his innuendoes In verse or in prose; For twelve honest men have decided the cause, Whereas the true rendering of the last line is "Who are judges alike of the facts and the laws." CHAP. CLXXVIII. A.D. 1784. Arrest of Erskine then moved in arrest of judgment, saying, that “all who knew him, in and out of the profession, could witness for him, that he had ever treated the idea of ultimately prevailing against the defendant upon such an indictment to be judgment. perfectly ridiculous, and that his only object, in all the trouble he had given to their Lordships and to himself, in discussing the right to a new trial, was to resist a precedent which he originally thought, and still continued to think, was illegal and unjustifiable: the warfare was safe for his client, because he knew he could put an end to the prosecution any hour he pleased, by the objection he would now, at last, submit to the Court." He was contending that the "Dialogue" was an entirely innocent production, when the counsel for the prosecution were required to point out any part of it, as charged in the indictment, which could be considered criminal, and they being unable to do so, JUDGMENT WAS ARRESTED. quences of noble con duct. So ended this famous prosecution. It seemed to establish Consefor ever the fatal doctrine, that libel or no libel was a pure Erskine's question of law, for the exclusive determination of Judges appointed by the Crown. But it led to the subversion of that doctrine, and the establishment of the liberty of the press, under the guardianship of English juries. The public mind was so alarmed by the consequences of this decision, that Mr. Fox's libel bill was called for, which declared the rights of jurors in cases of libel; and I rejoice always to think that it passed as a declaratory act, although all the Judges unanimously gave an opinion, in the House of Lords, that it was inconsistent with the common law. I have said, and I still think, that this great constitutional triumph is mainly to be ascribed to Lord Camden, who had been fighting in the cause for half a century, and uttered his last words in the House of Lords in its support: but without the invaluable assistance of Erskine, as counsel for the Dean of St. Asaph, the Star Chamber might have been re-established in this country.* * * 21 St. Tr. 847-1045. Erskine's Speeches, vol. i. 137–393. CHAPTER CLXXIX. CHAP. CLXXIX. Erskine counsel at the bar of the House of Commons in the West minster scrutiny. CONTINUATION OF THE LIFE OF LORD ERSKINE TILL THE COM- WHILE out of Parliament, Erskine several times appeared as counsel at the bar of the House of Commons, using very May, 1784. considerable freedoms with this august assembly. Being retained upon the petition respecting the "Westminster Scrutiny," in cross-examining a witness who had imputed misconduct to Mr. Fox's agents, he put the question, "Why do you infer that they were Mr. Fox's agents ?" and the witness replying, "Because they appeared to be his friends," he exclaimed, "If all Mr. Fox's friends are to be taken to be his agents, every honest man may be so esteemed who is not a member of this house." The counsel was ordered to withdraw, and the Speaker was severely blamed for allowing such language to pass unnoticed. Cornwall apologisedadmitting what had been said at the bar to be highly irregular, and a vote of censure on the counsel was then moved. July, 1784. Erskine, who was within hearing, was turning in his mind the spirited speech he should make in answer, when he was deeply mortified by hearing Pitt say, in a most supercilious tone, "I rather think, Sir, it is not worth our while to take any further notice of the language of the learned gentleman, as it probably formed part of his instructions"!!! His dis respectful language to the House of Com mons, and Pitt's contemptuous treatment of him. Appearing to support a petition against certain clauses of the new bill for regulating the affairs of the East India Company, he denounced the whole measure as a vile imposture practised on a credulous nation, eulogising in the warmest terms the rejected bill of his right honourable friend. An admonition to regularity, at last coming from the chair, he said, "If, Mr. Speaker, I have been guilty of any irregularity, it arises solely from a diminution of that respect which I was accustomed to feel for this assembly before it was shorn CLXXIX. of its dignity-but which no longer animates me." He CHAP. then, in an ironical and taunting tone, observed upon the humility of his present situation, standing at the bar of that A. D. 1784. House of which he had formerly been a member, and on the respect due to an assembly which was supposed to be so pure, so elevated, and so wise. At last he tried to restore good humour by a bad joke saying, "I am well aware, Sir, that addresses from counsel are never much relished by the members of this House,' and are rather submitted to by way of physic, as it were, for the benefit of the constitution. I promise, therefore, to make my dose as palatable as the nature of the patient's case will admit." This the House would not swallow, and the Speaker again interrupted him, desiring him to confine himself to the prayer of the petition. Erskine. "At this late hour, Sir, the House ought not to enter upon the consideration of so important a subject." Speaker. "Sir, it does not become counsel at the bar to intimate when this House ought to adjourn. The House will govern its own proceedings as it thinks proper, and unless you wish to make some farther observations for your client, you may withdraw." He continued his speech, but with little effect, as the feeling on both sides was against him, and he required, as a stimulus to his oratory, the sympathy of his audience. But although he could never very successfully adapt himself to the trim of the House of Commons, such rebuffs were soon forgotten amidst his triumphs in the adjoining hall. Bearcroft, Pigot, and the other king's counsel opposed to him, were completely overmatched by him; he had great influence with judges as well as jurymen, and the saying went, that "in the Court of King's Bench he was like a bull in a china shop." He now gave up his circuit entirely, and confined himself to special retainers - being the first English barrister who ever took so bold a step. Although excluded from parliament, he kept up a strict *It might have been said of him, as it afterwards was of Scarlett, that "he had invented a machine by the secret use of which in Court he could always make the head of a Judge nod assent to his propositions; whereas his rivals, who tried to pirate it, always made the head of the Judge move dissentingly from side to side." His ascendency at the bar. CLXXIX. A.D. 1786. His connection with the leaders. CHAP. political connexion with the opposition leaders, and was particularly intimate with Fox and Sheridan. He had a great admiration of Burke, whose writings he perused almost as much as those of Milton and Shakspeare. But the feeling was not reciprocal. Burke disliked all lawyers, and consiopposition dering the new ally of the party rather shallow and illinformed, is said to have envied the fame and fortune he was acquiring. But Erskine was a very great favourite with the Prince of Wales, who was at this time a zealous Whig, and, forming his establishment as heir apparent, made him his Attorney General-intimating, that if of longer General to standing at the bar, he should have been appointed Chancellor of the Duchy of Cornwall - but that this office should be kept vacant for him. He is appointed Attorney the Prince of Wales. secution of Rex v. March, 1786. His speech I mention the next case, in which he particularly attracted on the pro- the attention of the public, chiefly for the purpose of showing the defective state of the administration of the criminal Motherill. law which still prevailed. A gentleman of the name of Motherill, who certainly was of bad moral character as well as of deformed person, but who, like all the King's subjects, was entitled to a fair trial, stood capitally charged for an assault upon Miss Wade, a young lady between sixteen and seventeen years of age, the daughter of an officer in the army, then Master of the Ceremonies at Brighton. Erskine was brought special to the Sussex assizes, and, although there was a strong prejudice against the prisoner, and no speech from counsel could be heard for him, thus addressed the jury without being checked by the Judge, and, I presume, without being supposed to outstep the line of his duty, -the inflammatory language of the harangue being rendered more objectionable by its affected candour: "I beseech you, gentlemen, to discharge from your minds every thing you have heard of the prisoner, and I might add, too, every thing you have seen; for I am told this wicked and unfortunate wretch has been this morning led about the streets for the benefit of air, and may probably have excited your compassion. I have no objection that you should compassionate him; a man is more an object of compassion because he is an |