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on lame suspicions and doubtful inferences." He then thanked the jury with much emotion for the life they had spared to him. The entire panel shed tears—the very men who had been so obviously packed to convict him, that at the opening of the trial Erskine said, “Mr. Tooke, they are murdering you !” The populace bore the old patriot through the

passages to the street, where they sent up shout upon shout. It was a great day for Reformers, and its anniversary is still celebrated by the Radicals of England.

Erskine's speech for Hardy (whose case was very critical, and the first one tried,) is one of the most splendid specimens of popular juridical eloquence on record. Owing to the running contests on points of law and evidence, constantly kept up while the trial went on, he lost his voice the night before he was to address the jury. It returned to him in the morning, and he was able to crowd seven hours full of such oratory as is rarely heard in our day. He regarded Hardy's acquittal or conviction not only as the turning point in the fate of his eleven associates, but as settling the question whether constructive treason should for long years track blood through the land, or its murderous steps be now brought to a final stand. He made a superhuman effort for victory, and achieved it. Profound as was bis legal learning, eminent as were his reasoning faculties, classical as was his taste, transcendent as were his oratorical powers, all conspiring to place him not only at the head of the English bar, but to rank him as the first advocate of modern times ; yet all were overshadowed by the inflexible courage and hearty zeal with which he met this crisis of British freedom. With the combined power of the King, his ministers, and his judges, arrayed against his clients and against him as their representative, seeking their blood and his degradation, he cowered not, but maintained the home-born rights of his proscribed fellow-subjects with arguments so matchless, with eloquence so glowing, with courage so heroic, with constancy so generous, that his name will ever find a

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place in the hearts of all who prefer the rights of man to the prerogatives of power. But more than all ; he exploded the doctrines of constructive treason, and established the law on the true foundation, that there must be some overt act to constitute guilt ; and he reïnscribed upon the Constitution of England the obliterated principle, that Englishmen may freely speak and publish their opinions concerning the Government of their country without being guilty of treason-a principle, under whose protecting shield they now utter their complaints, their denunciations even, in the very ear of Majesty itself. *

*

The text states only a legal truth. Practically there yet remain great obstacles in the way of the free utterance of opinions hostile to the Government-as witness the recent prosecutions of O'Connell, Jones, &c.

CHAPTER IV.

Constructive Treason-The Law of Libel and Sedition–The Dean of

St. Asaph-The Rights of Juries-Erskine-Fox-Pitt.

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I TOOK occasion in the last chapter to speak at some length of the trials of Tooke, Hardy, and others, for high treason, in 1794, and of the successful attack then made by Mr. ERSKINE on the doctrine of constructive treason. Down to the period of these trials, the English law of treason was infamous. Among other things, treason was defined to be waging war against the King, or compassing and imagining his death, or the overthrow of his Government. The law evidently contemplated the doing of some act, designed and adapted to accomplish these ends. But the construction of the courts had subverted this principle, and declared the mere utterance of words high treason. In the reign of Edward IV, a citizen was executed for saying "he would make his son heir of the crown ;meaning, as was supposed, that he would make him the heir of his inn, called “the Crown." Another, whose favorite buck the King had wantonly killed, was executed for saying, "he wished the buck, horns and all, in the bowels of the man who counseled the King to kill it.” The court gravely held, that as the King had killed it of his own accord, and so was liis own counselor, this declaration was imagining the King's death, and therefore treason ! So it had been held, that using words tending to overawe Farliament, and procure the repeal of a law, was levying war on the King, and therefore treasonable. At length the courts yielded to the doctrine that there must be some overt act

to constitute the crime. But they also held that, reducing words to writing was an overt act, even though they were never read or printed! Peachum, a clergyman, was convicted of high treason for passages found in a sermon which had never been preached. The immortal Algernon Sidney was executed, and his blood attainted, for some unpublished papers found in his closet, containing merely speculative opinions in favor of a republican form of government. It was in allusion to this judicial murder by the infamous Jeffries, and to the fact that the record of the conviction had been destroyed, that Erskine, on the trial of Hardy, uttered the splendid anathema against " those who took from the files the sentence against Sidney, which should have been left on record to all ages, that it might arise and blacken in the sight, like the handwriting on the wall before the Eastern tyrant, to deter from outrages upon justice." It has already been said that this peerless lawyer exploded these dangerous doctrines, and made it safe for Englishmen to speak and write freely against the King and Government, without exposure to a conviction for treason.

But this is not the only salutary legal reform for which England is indebted to his exertions. Pernicious as is the existing law of CRIMINAL PROSECUTIONS FOR LIBELS AND SEDITIOUS WRITINGS in that country, it was vastly worse till his strong arguments and scathing appeals had shaken it to its foundations. A glance at the law. Any publication imputing bad motives to King or Minister; or charging any branch of Governinent with corruption, or a wish to infringe the liberties of the People; or which cast ridicule upon the Established Church ; and any writing, printing, or speaking, which tended to excite the People to hatred or contempt of the Government, or to change the laws in an improper manner, &c., were seditious libels, for which fine, imprisonment, the pillory, &c., might be imposed. Nor was the truth of the libel

Admirable snares, these, to entangle unwary reformers, and catch game for the royal household! And these bad laws were worse administered.

any defense. Admirable

sentence.

The juries had no power in their administrationthe only check in the hands of thə People. The court withheld from the jury the question whether a writing was libelous or seditious, and permitted them only to decide whether the prisoner had published it. In a word, if the jury found that he published, they must convict; and then the judge growled out the

These trials were ready weapons for State prosecution in the hands of a tyrannical King and Ministry, with pliant judges at their beck; and in the latter half of the last century they were used without stint or mercy. They struck down Wilkes, Tooke, Woodfall, Muir, Palmer, Holt, Cartwright, and other liberals, for publications and speeches in vindication of the People, which, at this day, would be held harmless even in England. Some were heavily fined, others imprisoned or transported, others set on the pillory, or cropped and branded, their houses broken open and searched, their wives and daughters insulted, their private papers rifled, their printing presses seized, their goods confiscated, their names cast out as evil, and they might regard their lot as fortunate if their prospects for life were not utterly ruined. The treatment of Muir and Palmer, in 1793, was barbarous. Muir was a respectable barrister, and Palmer a clergyman of eminent literary attainments. They had merely addressed meetings and associations for Parliamentary reform in Glasgow and Edinburgh, and reports of one or two of their speeches had been printed. Muir was sentenced to transportation for fourteen years, and Palmer for seven. They were shipped off to Botany Bay with a cargo of common felons ! Several other persons, for attending a Reform Convention in Edinburgh the same year, shared a like fate. These are trials which sunshine politicians of the liberal school never contemplate, except to draw from them materials for rounding off fine periods about freedom and the rights of

But they endear the sufferers to the struggling masses of their own time; and, in after years, when the sons of the

man.

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