Part 14

Soon after, gentlemen, there followed an act, in comparison with which all the deeds of rapine and blood perpetrated in the world are innocence itself—the invasion and destruction of Switzerland, that unparalleled scene of guilt and enormity; that unprovoked aggression against an innocent country, which had been the sanctuary of peace and liberty for three centuries; respected as a sort of sacred territory by the fiercest ambition; raised, like its own mountains, beyond the region of the storms which raged around on every side; the only warlike people that never sent forth armies to disturb their neighbors; the only government that ever accumulated treasures without imposing taxes, an innocent treasure, unstained by the tears of the poor, the inviolate patrimony of the commonwealth, which attested the virtue of a long series of magistrates, but which at length caught the eye of the spoiler, and became the fatal occasion of their ruin! Gentlemen, the destruction of such a country, “its cause so innocent, and its fortune so lamentable!” made a deep impression on the people of England. I will ask my learned friend, if we had then been at peace with the French Republic, whether we must have been silent spectators of the foulest crimes that ever blotted the name of humanity! whether we must, like cowards and slaves, have repressed the compassion and indignation with which that horrible scene of tyranny had filled our hearts? Let me suppose, gentlemen, that ALOYS REDING, who has displayed in our times the simplicity, magnanimity, and piety of ancient heroes, had, after his glorious struggle, honored this kingdom by choosing it as his refuge; that after performing prodigies of valor at the head of his handful of heroic peasants on the field of Morgarten, where his ancestor, the _Landmann Reding_, had, five hundred years before, defeated the first oppressors of Switzerland, he had selected this country to be his residence, as the chosen abode of liberty, as the ancient and inviolable asylum of the oppressed; would my learned friend have had the boldness to have said to this hero, “that he must hide his tears” (the tears shed by a hero over the ruins of his country!) “lest they might provoke the resentment of _Reubell_ or _Rapinat_! that he must smother the sorrow and the anger with which his heart was loaded; that he must breathe his murmurs low, lest they might be overheard by the oppressor!” Would this have been the language of my learned friend? I know that it would not. I know that by such a supposition I have done wrong to his honorable feelings, to his honest English heart. I am sure that he knows as well as I do, that a nation which should _thus_ receive the oppressed of other countries would be preparing its own neck for the yoke. He knows the slavery which such a nation would deserve, and must speedily incur. He knows that sympathy with the unmerited sufferings of others, and disinterested anger against their oppressors, are, if I may so speak, the masters which are appointed by Providence to teach us fortitude in the defence of our own rights; that selfishness is a dastardly principle, which betrays its charge and flies from its post; and that those only can defend themselves with valor who are animated by the moral approbation with which they can survey their sentiments toward others, who are ennobled in their own eyes by a consciousness that they are fighting for justice as well as interest; a consciousness which none can feel but those who have felt for the wrongs of their brethren. These are the sentiments which my learned friend would have felt. He would have told the hero: “Your confidence is not deceived; this is still that England, of which the history may, perhaps, have contributed to fill your heart with the heroism of liberty. Every other country of Europe is crouching under the bloody tyrants who destroyed your country. _We_ are unchanged; we are still the same people which received with open arms the victims of the tyranny of Philip II. and Louis XIV. We shall not exercise a cowardly and clandestine humanity! Here we are not so dastardly as to rob you of your greatest consolation. Here, protected by a free, brave, and high-minded people, you may give vent to your indignation; you may proclaim the crimes of your tyrants; you may devote them to the execration of mankind; there is still one spot upon earth in which they are abhorred, without being dreaded!”[35]

I am aware, gentlemen, that I have already abused your indulgence, but I must entreat you to bear with me for a short time longer, to allow me to suppose a case which might have occurred, in which you will see the horrible consequences of enforcing rigorously principles of law, which I can not counteract, against political writers. We might have been at peace with France during the whole of that terrible period which elapsed between August, 1792 and 1794, which has been usually called the reign of Robespierre!—the only series of crimes, perhaps, in history which, in spite of the common disposition to exaggerate extraordinary facts, has been beyond measure underrated in public opinion. I say this, gentlemen, after an investigation which, I think, entitles me to affirm it with confidence. Men’s minds were oppressed by atrocity and the multitude of crimes; their humanity and their indolence took refuge in skepticism from such an overwhelming mass of guilt; and the consequence was, that all these unparalleled enormities, though proved not only with the fullest historical but with the strictest judicial evidence, were at the time only half believed, and are now scarcely half remembered. When these atrocities were daily perpetrating, of which the greatest part are as little known to the public in general as the campaigns of Genghis Khan, but are still protected from the scrutiny of men by the immensity of those voluminous records of guilt in which they are related, and under the mass of which they will be buried till some historian be found with patience and courage enough to drag them forth into light, for the shame, indeed, but for the instruction of mankind—when these crimes were perpetrating, which had the peculiar malignity, from the pretexts with which they were covered, of making the noblest objects of human pursuit seem odious and detestable; which have almost made the names of liberty, reformation, and humanity synonymous with anarchy, robbery, and murder; which thus threatened not only to extinguish every principle of improvement, to arrest the progress of civilized society, and to disinherit future generations of that rich succession which they were entitled to expect from the knowledge and wisdom of the present, but to destroy the civilization of Europe, which never gave such a proof of its vigor and robustness as in being able to resist their destructive power—when all these horrors were acting in the greatest empire of the continent, I will ask my learned friend, if we had then been at peace with France, how English writers were to relate them so as to escape the charge of libelling a friendly government?

When Robespierre, in the debates in the National Convention on the mode of murdering their blameless sovereign, objected to the formal and tedious mode of murder called a trial, and proposed to put him immediately to death, “on the principles of insurrection,” because, to doubt the guilt of the king would be to doubt the innocence of the Convention; and if the king were not a traitor, the Convention must be rebels; would my learned friend have had an English writer state all this with “_decorum and moderation_?” Would he have had an English writer state that though this reasoning was not perfectly agreeable to our national laws, or perhaps to our national prejudices, yet it was not for him to make any observations on the judicial proceedings of foreign states?

When Marat, in the same Convention, called for two hundred and seventy thousand heads must our English writers have said that the remedy did, indeed, seem to their weak judgment rather severe; but that it was not for them to judge the conduct of so illustrious an assembly as the National Convention, or the suggestions of so enlightened a statesman as M. Marat?

When that Convention resounded with applause at the news of several hundred aged priests being thrown into the Loire, and particularly at the exclamation of Carrier, who communicated the intelligence, “What a revolutionary torrent is the Loire”—when these suggestions and narrations of murder, which have hitherto been only hinted and whispered in the most secret cabals, in the darkest caverns of banditti, were triumphantly uttered, patiently endured, and even loudly applauded by an assembly of seven hundred men, acting in the sight of all Europe, would my learned friend have wished that there had been found in England a single writer so base as to deliberate upon the most safe, decorous, and polite manner of relating all these things to his countrymen?

When Carrier ordered five hundred children under fourteen years of age to be shot, the greater part of whom escaped the fire from their size, when the poor victims ran for protection to the soldiers, and were bayoneted clinging round their knees! _would my friend_—but I can not pursue the strain of interrogation. It is too much. It would be a violence which I can not practise on my own feelings. It would be an outrage to my friend. It would be an insult to humanity. No! Better, ten thousand times better, would it be that every press in the world were burned; that the very use of letters were abolished; that we were returned to the honest ignorance of the rudest times, than that the results of civilization should be made subservient to the purposes of barbarism, than that literature should be employed to teach a toleration for cruelty, to weaken moral hatred for guilt, to deprave and brutalize the human mind. I know that I speak my friend’s feelings as well as my own when I say God forbid that the dread of any punishment should ever make any Englishman an accomplice in so corrupting his countrymen, a public teacher of depravity and barbarity!

Mortifying and horrible as the idea is, I must remind you, gentlemen, that even at that time, even under the reign of Robespierre, my learned friend, if he had then been attorney-general, might have been compelled by some most deplorable necessity to have come into this court to ask your verdict against the libellers of Barrère and Collot d’Herbois. Mr. Peltier then employed his talents against the enemies of the human race, as he has uniformly and bravely done. I do not believe that any peace, any political considerations, any fear of punishment would have silenced him. He has shown too much honor, and constancy, and intrepidity, to be shaken by such circumstances as these.

My learned friend might then have been compelled to have filed a criminal information against Mr. Peltier, for “wickedly and maliciously intending to vilify and degrade Maximilian Robespierre, President of the Committee of Public Safety of the French Republic!” He might have been reduced to the sad necessity of appearing before you to belie his own better feelings, to prosecute Mr. Peltier for publishing those sentiments which my friend himself had a thousand times felt, and a thousand times expressed. He might have been obliged even to call for punishment upon Mr. Peltier for language which he and all mankind would forever despise Mr. Peltier if he were not to employ. Then, indeed, gentlemen, we should have seen the last humiliation fall on England; the tribunals, the spotless and venerable tribunals, of this free country reduced to be the ministers of the vengeance of Robespierre! What could have rescued us from this last disgrace? _The honesty and courage of a jury._ They would have delivered the judges of this country from the dire necessity of inflicting punishment on a brave and virtuous man, because he spoke truth of a monster. They would have despised the threats of a foreign tyrant, as their ancestors braved the power of oppression at home.

In the court where we are now met, Cromwell twice sent a satirist on his tyranny to be convicted and punished as a libeller, and in this court, almost in sight of the scaffold streaming with the blood of his sovereign, within hearing of the clash of his bayonets which drove out Parliament with contumely, two successive juries rescued the intrepid satirist [Lilburne] from his fangs, and sent out with defeat and disgrace the usurper’s attorney-general from what he had the insolence to call _his_ court! Even then, gentlemen, when all law and liberty were trampled under the feet of a military banditti; when those great crimes were perpetrated on a high place and with a high hand against those who were the objects of public veneration, which, more than any thing else, break their spirits and confound their moral sentiments, obliterate the distinctions between right and wrong in their understanding, and teach the multitude to feel no longer any reverence for that justice which they thus see triumphantly dragged at the chariot-wheels of a tyrant; even then, when this unhappy country, triumphant, indeed, abroad, but enslaved at home, had no prospect but that of a long succession of tyrants wading through slaughter to a throne—_even then, I say, when all seemed lost, the unconquerable spirit of English liberty survived in the hearts of English jurors_. That spirit is, I trust in God, not extinct; and if any modern tyrant were, in the drunkenness of his insolence, to hope to overawe an English jury, I trust and I believe that they would tell him: “Our ancestors braved the bayonets of Cromwell; we bid defiance to yours. _Contempsi Catilinæ gladios—non pertimescam tuos!_”

What could be such a tyrant’s means of overawing a jury? As long as their country exists, they are girt round with impenetrable armor. Till the destruction of their country, no danger can fall upon them for the performance of their duty, and I do trust that there is no Englishman so unworthy of life as to desire to outlive England. But if any of us are condemned to the cruel punishment of surviving our country—if, in the inscrutable counsels of Providence, this favored seat of justice and liberty, this noblest work of human wisdom and virtue, be destined to destruction, which I shall not be charged with national prejudice for saying would be the most dangerous wound ever inflicted on civilization; at least let us carry with us into our sad exile the consolation that we ourselves have not violated the rights of hospitality to exiles—that we have not torn from the altar the suppliant who claimed protection as the voluntary victim of loyalty and conscience!

Gentlemen, I now leave this unfortunate gentleman in your hands. His character and his situation might interest your humanity; but, on his behalf, I only ask justice from you. I only ask a favorable construction of what can not be said to be more than ambiguous language, and this you will soon be told, from the highest authority, is a part of justice.

Notwithstanding the great impression made by his speech, the charge of Lord Ellenborough made it necessary that the jury should render a verdict of guilty. In his instructions his Lordship said that under the law of England “any publication which tended to degrade, revile, and defame persons in considerable situations of power and dignity, in foreign countries, may be taken and treated as a libel, and particularly where it has a tendency to interrupt the pacific relations of the two countries.”

The jury found Peltier guilty; but as war was almost immediately declared, he was not brought up for sentence, but was set free.

LORD ERSKINE.

“As an advocate in the forum, I hold him to be without an equal in ancient or modern times.” This is the judgment of the author of “The Lives of the Lord Chancellors,” in regard to Thomas, Lord Erskine. But for the modern student, Erskine was not merely the most powerful advocate that ever appealed to a court or a jury, but what is more important, he was, in a very definite sense, so closely identified with the establishment of certain great principles that lie at the foundation of modern social life, that a knowledge, at least, of some of his speeches is of no little importance. The rights of juries, the liberty of the press, and the law of treason were discussed by him not only with a depth of learning and a power of reasoning which were absolutely conclusive, but at the same time with a warmth and a brilliancy of genius which throw a peculiar charm over the whole of the subjects presented.

Thomas Erskine was the youngest son of the Earl of Buchan, the representative of an old Scotch house, whose ample fortune had wasted away until the family was reduced to actual poverty. Just before the birth of the future Lord Chancellor, the Earl of Buchan abandoned his ancient seat, and with wife and children took up his abode in an upper flat of a lofty house in the old town of Edinburgh. Here Erskine was born on the 10th of January, 1750. The poverty of the family made it impossible for him to acquire the early education he craved. Some years at the schools in Edinburgh, and a few months in the University of St. Andrews, completed his academic days. He gained a very superficial knowledge of Latin, and, if we may believe Lord Campbell, “little of Greek beyond the alphabet.” In the rudiments of English literature, however, he was well instructed; and he seems, even while at the university, to have acquired something of that freedom and nobleness of manner which so much distinguished him in after-life.

The condition of the family, however, made it impossible for him to complete the course of studies at the University; and accordingly, at fourteen, he was placed as a midshipman in the navy. Here he remained four years, during which time he visited different parts of the globe, including the Indies and the English colonies in North America. At the end of his term he determined, like the elder Pitt, to enter the army; and, taking the whole of his small patrimony for the purpose, he bought an ensign’s commission in the Royals or First Regiment of Foot. Here he remained from the time he was eighteen till he was twenty-five. At twenty he was married to a lady of respectability, though without fortune. But this step, which, with most persons, would have been the sure precursor of poverty and obscurity, turned out in the case of Erskine to be a means of inspiration and assistance. His mind was balanced, and his vivacity was reduced to earnestness. As the regiment was in garrison, he had abundant leisure, and he applied himself in the society of his wife to the systematic study of the masterpieces of English literature. The best parts of Milton and Shakespeare he acquired such mastery of that he continued to know them by heart throughout life. It is evident that his attainments were beginning to attract attention; for, in April of 1772, Boswell speaks of him as dining with Johnson, and characterizes him as “a young officer in the regimentals of the Scotch Royals, who talked with a vivacity, fluency, and precision which attracted particular attention.”

It was not until two years after this time that we find Erskine interested in the proceedings of the courts. He subsequently declared that, while a witness of judicial proceedings, it often occurred to him in the course of the argument on both sides how much more clearly and forcibly he could have presented the points and urged them on the minds of the jury. It was this consciousness that led him one day, while dining with Lord Mansfield, to ask: “Is it impossible for me to become a lawyer?” The answer of the Lord Chancellor did not utterly discourage him; and he became a student of Lincoln’s Inn at the age of twenty-five. In order to abridge his term of study, he determined to take a degree at one of the universities, as, being a nobleman’s son, he was entitled to do on examination and without residence. In fulfilment of this design, he became a member of Trinity College, at Cambridge, in 1776, while he was prosecuting his legal studies in London, and still holding his commission in the army as a means of support. In July of 1778, when in his twenty-ninth year, he was called to the bar.

A singular combination of circumstances almost immediately brought him forward into great prominence. He had been retained as junior counsel with four eminent advocates for the defence of one Captain Bailie, who had disclosed certain important corruptions of the government officials in charge of Greenwich Hospital. Bailie was prosecuted for libel, and the influence of the government was so great, that the four older counsellors advised him to accept of a compromise by withdrawing the charges and paying the costs. From this opinion Erskine alone dissented. Bailie accepted the advice of the young advocate with enthusiasm, and thus threw upon him the chief responsibility of conducting the cause. The result was one of the most extraordinary triumphs in the history of forensic advocacy. Erskine’s power revealed itself, not only in the remarkable learning and skill which he showed in the general management of the cause, but in the clearness with which he stated the difficult points at issue, and the overpowering eloquence with which he urged his positions on the court and the jury. It was his first cause. He entered Westminster Hall in extreme poverty; before he left it he had received thirty retainers from attorneys who had been present at the trial. Demand for his services continued rapidly to increase, till within a few years his income from his profession amounted to 12,000 pounds a year.

It was but natural that so great success at the bar should carry Erskine, at an early day, into the House of Commons. In 1783 we find him on the benches of the House as a supporter of the newly formed Coalition of North and Fox. His fame as an orator had become so great, that the Coalition hoped and the Opposition feared much from his eloquence. But he disappointed his friends, and showed as soon as he took the floor, that his manner was suited to the courts and not to the legislature. Croly, in his “Life of George IV.,” relates that great expectations were raised when it was announced that Erskine was to make his maiden speech. Pitt evidently intended to reply, and sat, pen in hand to take notes of his formidable opponent’s arguments. He wrote, however, but a few words. As Erskine proceeded, his attention relaxed; and finally, with a contemptuous expression, he stabbed his pen through the paper and threw them both on the floor. “Erskine,” says Croly, “never recovered from this expression of disdain; his voice faltered, he struggled through the remainder of his speech and sank into his seat dispirited, and shorn of his fame.” It was not until late in life, that he was able to recover the equanimity lost on that night in the House of Commons. But, although after some years, he made several eloquent parliamentary speeches, all his legislative efforts were far surpassed by the brilliancy of his speeches in Westminster Hall.

From 1783 till 1806 Erskine adhered to the liberal political doctrines advocated by Fox. His influence in Parliament, however, was not great, and his principal energies were expended in the courts; when, in 1806, Grenville and Fox came into power, Erskine received the highest award to which an English attorney can aspire. But, he had not long to enjoy his new honors as Lord Chancellor, for Pitt soon came once more into power. The usages of the legal profession in England did not allow Erskine to return to the bar, and therefore the remaining years of his life were unimportant, and not without disappointment. The great advocate died November 17, 1823, in the seventy-fourth year of his age.