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persecutors garnish their tombs, those who then endure like trials swear by their memories and conjure with their names.
The times of which I write were prolific of these State prosecutions. Mr. Erskine was the ready counsel of the proscribed reformers then, as Mr. Brougham was at a later period. His great effort on these trials was to convince the court that the juries had the rigbt to decide upon the character of the publication in making up their verdicts; or, in legal phrase, that they were "judges both of law and fact.” In this effort, he had many a fierce conflict with the judges, when, with his usual courage, he braved their rebukes and challenged the execution of their hinted threats to commit him for contempt. He always argued this point fully to the court, in the presence of the jury; and such was his mastery over the reason and the feelings, that he sometimes prevented a conviction when he could not obtain an acquittal. It was in an affair of this sort that he had a quarrel with Mr. Justice Buller, a judge who coupled double the imperiousness of Mansfield with half his talents, and whose frown, glowering out from under his huge wig, has silenced many a barrister of more than common nerve. The respectable DEAN OF ST. ASAPH, who breathed the mountain air of Wales, published a clever political tract, under the guise of a dialogue between King George and a farmer. Erskine went down to defend him. Buller presided at the trial. Erskine argued his favorite topic with more than his accustomed ability. The jury listened with absorbing attention ; the judge with impatient interruptions. He charged furiously against the Dean, and told the jury, if they believed he published the tract, they must render a general verdict of guilty. The words of reason and power of the great barrister, and his piercing eyes, which riveted everything within their
went with them to their room. They returned a verdict in these words: “Guilty of publishing only." The astonished judge ordered them out again, with directions to render a general verdict of guilty. Erskine interposed, and insisted upon their right to render such a verdict as they had. The judge replied tartly, and the jury retired. Again they came in with the same verdict. The judge reprimanded them, while Erskine insisted that their verdict should be recorded. Buller retorted, explained his law to the refractory panel, and sent them out. The third time they appeared with the same verdict. The judye grew furious, and said, unless they rendered a general verdict, he should order the clerk to enter it“ guilty.” Erskine protested in strong terms. Buller ordered him to sit down. Erskine said he would not sit down, nor would he allow the court to record a verdict of guilty against his client, when the jury had rendered no such verdict. Buller hinted at comniitment. Erskine defied him. The jury were frightened, and, in their panic, asscnted to a general verdict of guilty. Erskine excepted, and carried the case to the full bench. But the day of triumph was at hand. So clearly had he in his great arguments exposed the iniquity of the rule, (if, indeed, it was law at all,) and so pertinaciously had he contested it on the trial of the Dean, that Parliament passed a declaratory act soon after, (thus admitting that Erskine was right,) giving jurors, in these prosecutions, the power to render a verdict upon the whole offense charged, i. e., making them “judges of the law as well as the fact."* I need not say that, after this,
* This scene is given from memory-the report not being at hand.
† A like contest early arose in this counthy. Congress passed an act similar to that of the English, in 1798. In the State of New York, the case of People vs. Croswell, for a libel on Jefferson, attracted great attention. It was tried in 1803. The judge charged the jury according to the old English law, and the defendant was convicted. It was carried before the full bench, and argued in 1804. The speech of Alexander Hamilton, for the defendant, was one of the ablest ever delivered in America. The court being equally divided in opinion, the Legislature, the next year, passed a declaratory act, giving to juries the right to determine the law and the fact. This is now the prevailing law of the country. Croswell's case is reported in 3d Johnson's Cases.
prosecutions for seditious libels became less potent and frequent weapons in the hands of royal and ministerial persecutors, and reformers breathed freer.
It does the heart good to contemplate talents like Erskine's devoted to such purposes. To see the foremost lawyer of his time, in the midst of wide-spread aristocratic clamor, and despite the fulminations of kings and ministers and judges, take the side of humble men, who are denounced as incendiaries, agrarians, levelers, French Jacobins, traitors, and infidels, plotting to murder their sovereign, upheave his throne, and prostrate the altars of the church, (and these are but a tithe of the catalogue,) and for years perform prodigies of labor for poor clients and poorer pay, thus blocking up the avenues to preferment in his cherished profession, and all for the love he bears the common cause ! Such a spectacle should go somewhat to blunt the edge of those taunts so constantly aimed at a profession which he adored and adorned, and which, in every struggle for human rights, has furnished leaders to the popular party among the bravest of the brave. The law, other profession, has its scum and its vermin, and yields its share of dishonest men. But they are dishonest not because they are lawyers, but because they are scoundrels, and would have been so had they chosen to be merchants, physicians, or horse-jockies. When reproaching the whole legal fraternity as a “pack of licensed swindlers," it might be well to remember that the most conspicuous rebels and martyrs of English freedom, in the olden times, were lawyers—that Erskine, Emmet, Romilly, Mackintosh, O'Connell, and Brougham, of later and milder days, were lawyers; and that Jefferson, Adams, Otis, Sherman, Henry, and Hamilton, with many other bold spirits who thundered and lightened during the storm of the American revolution, were lawyers.
But we must leave Mr. Erskine by saying, that he possessed ability and learning to maintain the boldest positions ; eloquer je for the most thrilling appeals; imagination to sustain the loftiest
flights. He was graceful in action, melodious in elocution, and had an eye of whose fascinating power jurors were often heard to speak. He was a wit and a logician—a lawyer and a reformer -a man, cast in the noblest mold of his species.
Mr. Erskine was powerfully sustained in his efforts for law reform by the great liberal leader in the House of Commons. CHARLES JAMES Fox deserves a conspicuous place among the early Reformers of England. Entering Parliament in 1768, when just turned twenty-one, he rallied under the banner of Mr. Burke, then the chief debater on the Whig side, whose lead he followed through the doubtful contest on American questions; and when victory, and peace, and independence, crowned their efforts, the chief resigned the standard of opposition to the hands of his younger and more robust lieutenant. Fox is called “the disciple of Burke," and, after their unnatural estrangement, he gratefully said, “I have learnt more from Burke alone than from all other men and authors." mained in the Commons till his death, in 1806 ; and though hampered by aristocratic connections and the leadership of his party, his generous nature and warm heart, through nearly forty years of Parliamentary life carried his great talents to the liberal side. He headed the forlorn hope of English freedom during the panic immediately following the French revolution, and in the darkest and stormiest nights of that gloomy period, his voice sounded clear and firm above the tempest, hurling defiance at his foes, and bidding the few. friends of man and constitutional liberty who stood around him to be of good cheer, for thė day of their redemption was drawing on. His speech against the stamp act, the taxation of the colonies, the American war, the test act, the suspension of the habeas corpus, the treason and sedition bills, the slave trade; and in favor of Parliamentary reform, religious toleration, Catholic emancipation, the rights of juries, and of peace, contain volumes of liberal principles which endear his name to the friends of humanity in both hemispheres. As Erskine was the
first advocate that ever stood at the English bar, so Fox was the first debater that ever appeared in its Commons. Burke wrote of him, after their separation : “ I knew him when he was nineteen; since which, he has risen to be the most brilliant and accomplished debater the world ever saw. mentative powers were of the highest order, and his wit, his invective, and his appeals to the judgment and feelings unrivaled. In the partisan warfare of extemporaneous debate, he bore down on his antagonists with an energy which, when fully roused, bordered on ferocity. But it was the ferocity of impassioned logic and intense reasoning. Not content with once going over the ground in controversy, he traveled it again and again, unfolding new arguments and adding additional facts, till his searching and vigorous eloquence had discovered and demolished every objection that lay in his track. The very embodiment of the reasoning element in man, he saw through his subject with rapid glances, grappled sturdily with all its strong points, despised mere ornaments, rejected all be wildering flights of the imagination, and shunned excursions into collateral fields which skirted his line of argument. In these latter respects he was totally unlike his great master. As his reasoning powers were cast in the most colossal mold, so his heart was of the finest and noblest quality. Mackintosh has
justly said, that “he united in a most remarkable degree the seemingly repugnant characters of the mildest of men and the most vehement of orators.” His appeals to magnanimity, to generosity, to integrity, to justice, to mercy, thrilled the soul of Freedom, while the tide of consuming lava which he poured on hypocrisy, meanness, dissimulation, cruelty, and oppression, made the grovelers at the footstool of power hide with fear and shame. He was a statesman of the broadest and most liberal views. His capacious mind was stored with political knowledge ; he had deeply studied the institutions of ancient and modern States; and no man better understood the general and constitutional history of his own country, nor the delicate