CHAPTER CLXXX. CONTINUATION OF THE LIFE OF LORD ERSKINE TILL THE CONCLU- CHAP. CLXXX. A. D. 1794. Resolution to prose cute the members of the parlia mentary NOTWITHSTANDING the unfortunate result of the late State - CHAP. CLXXX. A. D. 1794. Proceedings in Parlia ment. those who advised this mode of proceeding, far from being animated by any bloodthirsty disposition, or love of arbitrary power, really believed it the only means of saving the country from anarchy; although I suspect that some of them were well pleased to increase the alarm in the public mind, - to throw obloquy upon their political rivals, and to strengthen the foundation of their own power. But in my humble opinion, severe censure is due either to their judgment or their intentions. Indeed, at this distance of time, and when an arbitrary application of the criminal law has been abandoned by all parties in the state, we are at a loss to account for an attempt which seems to us not only very unconstitutional but very foolish, as it was not accompanied by the abolition of trial by jury. First came secret committees of the two Houses of Parliament, and upon their reports a bill was passed suspending the Habeas Corpus Act, and containing this most reprehensible recital, to be referred to as proof in the prosecutions which were to follow “that a treacherous and detestable conspiracy had been formed for subverting the existing laws and Constitution, and for introducing the system of anarchy and confusion which had lately prevailed in France."* This was more exceptionable in principle than any thing done during the reign of Charles II.; for then the fabricators of the Popish plot did not think of corroborating the testimony of Oates and Bedloe by a public statute; and there, if the facts alleged had been true, they would have amounted to a plain case of actual treason; whereas here, admitting the truth of all the facts alleged, there was no pretence for saying that any treason contemplated by the legislature had been committed. If this scheme had succeeded, not only would there have been a sacrifice of life contrary to law, but all political 'agitation" must have been extinguished in England, as there would have been a precedent for holding that the effort to carry a measure by influencing public opinion through the 66 *Stat. 34 Geo. 3. c. 54. This declaration, the work of a ministerial committee and a ministerial majority, was relied upon in the treason trials as proof of the conspiracy. A. D. 1794. means openly resorted to in our days, is a "compassing of the CHAP. death of the sovereign.' The only chance of escaping servi- CLXXX. tude would have been civil war. It is now frightful to think of the perils to which the nation was then exposed; for, on account of the horror justly caused in England by the murder of Louis XVI. and the other atrocities which had recently been perpetrated at Paris, an attempt which in other times. would have excited universal disgust and indignation, was then received with considerable favour, and might have been crowned with success. But Erskine and the crisis were framed for each other. He might have passed through life a well-employed barrister, admired by his contemporaries for his skill in winning verdicts, and forgotten as soon as the grave had closed over him. But his contemporaries, who without him might have seen the extinction of freedom among us, saw it, by his peculiar powers, placed upon an imperishable basis. ments for high trea son. The Grand Jury for the county of Middlesex found an Indictindictment for high treason against twelve persons who had belonged to these societies, and had professed themselves warm friends to parliamentary reform, the overt act laid being that they had engaged in a conspiracy to call a convention, the object of which was to bring about a revolution in the country-but it was not suggested that there was any plot against the King's life, or any preparation for force. Erskine assigned as counsel for soners. The prisoners, upon their arraignment, had Erskine assigned as their counsel, with Gibbs, hitherto only known as a good lawyer-from the distinction he now acquired, after- the priwards Attorney General and Chief Justice of the Common Pleas. Declining to be tried jointly, the Attorney General selected Thomas Hardy, a shoemaker, as the one against whom he could make the strongest case. This memorable trial began on Tuesday the 28th of Octo- Trial of ber, 1794, at the Old Bailey, before Lord Chief Justice Hardy. Eyre, and several other Judges, sitting under a special commission of oyer and terminer. Sir John Scott spoke nine hours in opening the case for the prosecution. In the annals of English criminal jurisprudence there had not yet been CHAP. A. D. 1794. an instance of a trial for high treason that had not been CLXXX. finished in a single day. When the hour of midnight struck, scarcely any progress had been made in adducing the evidence for the Crown, which was to consist of innumerable speeches made, and resolutions passed, during many months, not only in London, but at Manchester, Sheffield, Norwich, Edinburgh, and many other places, when the prisoner had been at a distance of hundreds of miles, of toasts at anniversary dinners, and of voluminous publications issued by the obnoxious societies, or which the societies had approved of, or which had for their authors individual members of the societies supposed to be implicated in the conspiracy. Erskine's duct. Erskine, who did not despise any arts by which he might skilful con- conciliate the jury, expressed his readiness to consent that they should go to their several homes, saying, "I am willing that they shall be as free as air, with the single restriction that they will not suffer themselves to be approached in the of influence; and the gentlemen will not think it much that this should be required, considering the very peculiar nature of this case.” way An objection, however, was made to the jurymen separating; and it was agreed that they should pass the night under the care of four bailiffs in a large room in an adjoining tavern, in which couches were strewed for them. But before they retired to talk over the subject together, and to ruminate upon it, Erskine, perceiving that a deep impression had been made upon them by the solemn and seemingly candid address of the Attorney General, was determined to give them some other topic of conversation, and some other food for reflection. As soon, therefore, as the four bailiffs had been sworn to do their duty, he thus spoke, while the jury listened: "My Lord, all this immense body of papers has been seized, and been a long time in the hands of the officers of the Crown. We applied to see them, but were refused we applied to the Privy Council, and were refused we were referred to your Lordship, because they knew that your Lordship could not grant such a request. Here we are, therefore, with all these papers tumbled upon our hands, without the least CLXXX. A, D. 1794. opportunity of examining them; and yet from this load of CHAP. papers, which the Attorney General took nine hours to read, the act of compassing the King's death is to be collected. I trust your Lordships will be disposed to indulge me—indeed I shall expect, in justice to the prisoner, that I may have an opportunity, before I address the jury upon this mass of evidence, to know what is in it. I declare, upon my honour, as far as relates to myself and my friend who is assigned as counsel for the prisoner, we have no design whatever to trespass upon the patience of the Court, and your Lordships may have seen to-day how little of your time we have consumed. We have no desire upon earth but to do our best to save the man for whom your Lordships have assigned us to be counsel, and whom we believe to be innocent." The Court sat day by day at eight o'clock in the morning, and continued sitting till past midnight. Erskine's attention was never for one moment relaxed, and he was ever on the watch for an opportunity of exciting the sympathy of the jury by interlocutory speeches, particularly in arguing questions of evidence. The proceedings of the Convention at Edinburgh being proffered, he objected that the Crown must first show that they were approved of by Mr. Hardy, saying: -" I confess I am not very anxious to shut out any evidence - I very probably do not understand it; but I do not see how it bears upon the case. He is charged with compassing and imagining the death of our Sovereign Lord the King,' whose life is dear, my Lord, to all the kingdom. No act can be given in evidence before your Lordships, nor will I sit silent to hear any act given in evidence that does not tend to show the prisoner at the bar to have had that wicked intention. When I stand here defending the man who holds his life under the law (and I am not defending his life only, but my own life, and the life of every man in the country), I must take care that the rules of evidence are observed." On a subsequent occasion, in objecting to similar evidence, he tried to awaken the jury to the consequences of this proceeding by observing, "How many thousands of his Majesty's subjects are to be |