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E. Erskine's Defence of JOHN In explanation of the law of trea
HORNE TOOKE Esg. on his son, Mr. Erskine referred to the Trial for High TREASON. same authorities of Hale and Foiler
as he did on the trial of Mr. Hardy, M Brief Trecapitulation of the roca diferencen
de opinich bewu enim hinge currences on Hardy's trial, when he and the attorney general, on the had contended againft the united ef. conftruction of the law. The attor. forts of the most eminent gentlemen ney general confessed, that to conat the bar, who had been retained ititute the crime of high treason, it on the part of the crown. He re- was necessary, that the guilt should joiced in the success which had exist in the mind; and the evidence marked his exertions in that trial, he adduced was meant to prove this because he had been instrumental in intent by the overt acts, disclaiming the acquittal of an obscure and inno- any recourse to constructive accu. cent individual. The emotions mulation, or any other kind of trea. which he then felt were no less fin- son. cere than impressive; but if there The charge against the prisoner was a deficiency of talent on his was, by overt acts attempting to part, it was his lot to have been ve- overthrow the king's government by sy ably supported by his learned and force, and thus conspiring his death. ingenious friend Mr. Gibbs. But before they could convict him [Mr. Erskine was here unaccount of such offence, they must be facis. ably interrupted by a noise among fied that forcé was to have been the frangers.)
emplored. Upon this point he Silence having been resumed, he cited the authority of Hale--that, proceeded by observing, that such when a man conspires the death of trilling interruptions could not in the king or his imprisonment, to the least disconcert, or divert him gather company, or fend letters in from his grand object, In referring
execution thereof, is an overt at of to Hardy's case, he had not only to high trea'on : but the overt act itself combat the champions of the bar, was not high treason. but had to repel the passions and no further than to prove the treaprejudices of mankind, railed, at this fonable intention. particular crisis, to the highest de- In the prefent case the a!torney gree of frenzy.
general had done all that he was But this obfcure, unlettered man, entitled to do, and could prove no obtained not only an honourable ac- more than what was already before quittal from a jury of his country. the jury; yet there was not the men, but an enviable triumph against nightest evidence of any delign being prejudice, recorded in the joyful and formed againt the king's person, iympathetic bosom of every good however the proceedings may be man, actuated by the mof lively thought to operate against the gosensations. When he reflected on vernment; and upon that 'ground the pleasure which he derived from he most insist that the proof most the late glorious struggle in favour completely failed. The convention of innocence, he felt himself fimus at Edinburgh, which was the great lated by those emotions which the ground-work of the charge, was Supreme Being only, who
evidently affembled for the purpose « Sits in the whirlwind, and directs of deliberating on the means of rethe Norm,"
forming the abuses in government, can enforce, to ftrengthen him in the and the representation of the people cause of the innocent.
in parliament, without the least in. Vol. XXVI,
It could go
tention of accomplishing the object was the original founder of the soby force.
ciety for constitutional information. He was happy, on this occasion, It had for its object a parliamentary to have that authority, which of all reform-an object, for the attainothers was most defirable, namely, ment of which, the society of the that of the lord chief justice Eyre Friends of the People was fince inftihimself, in his charge to the grand | tuted-an object by which the jury, to thew that, whether the pro- greatest and best men of the counceedings of the societies or the con- try hoped to prevent unnecefTary vention led to the death of his majes. and ruinous wars ; to remedy the ty or not, was not a matter of infe- abuses in the state ; to prevent the rence but a matter of fact, upon increase of taxes, and guard against which the jury was to decide. No the profligate expenditure of our thing in the proceedings or publica money. It was an object which the tions of either breathed any such late earl of Chatham always had at tendency; and the same · learned heart, and which formed a leading judge had told them, that no man feature of his character. was justifiable in applying to the The duke of Richmond, whore language of another any other authority in the country was demeaning than that which he pro- fervedly high, and who was a man fessed.
not to be suspected of taking up By the statute of 25 Edward III. opinions on light or trivial grounds, it was expressly provided, that no had not only expressed himself an matter of implication should go to advocate for a radical reform in the a jury on a charge of this nature, representation, but published a letbat that the prisoner must be prova- ter, in which he declares it to be inbly at:ainted. He would then ak dispensable, and a ferts the inherent what were the proois brought in right of the people to enforce it. support of this prosecution Lond Thele opinions, taken up so deliHale faid, that such charges should berately, and so generally circulated not be made our by interence or with such prodigious effect, that fretches of wit ; neither would he nobleman uit, no doubt, fiill enatte:npo to defend, his client by wit, crtain, however inopportune he
may if he possed any. Before fo grave think the present moment to be for a bench, and on to folemn an occa- acting upon them. fion, all appearance of levity wouid Fie (Mr. Erskine) differed much be indecorous, utherwise there was from the noble duke respecting unie no part of this evidence which was vertal fuffrage ; but there were many not open to the broadest ridicule. who held diferent sentiments. The What was become of the humane noble duke vindicated the right of chiracter of the British law, if the the people to enforce the principle life of a subject was to depend upon of universal suffrage; and the crown evidence too light to pluck a feather lawyers of the day never brought from a sparrow's wing, and wbich him to an account for it. Mr. Tooke would not be admisible in a law- was an advocate for a parliamentary fuit respecting rol?
reform upon a much more moderate If the jury, after hearing him in plan, and yet his blood is called for, the present address, should think it while the duke of Richmond is not neceliary to go into any further evi- thought to have offended. dence, he would prove to them, Why were the seven persons now that major Cartwright, a gentle in Newgate selected as traitors, and man of the first character, talents, their accomplices spared ? Could and respectability in the kingdom, any man in his senses believe, that
hese seven men intended to erect | England. But by the term hemselves into a parliament, and ther convencion, ,” it was evidena affume legislative functions ? The that it was meant to be precisely case itself, simply stated, conveyed similar to that which was held in to the mind of every man, interna! Scotland.
Scotland. The folicitor general ara evidence, that they could have no gued, that the convention at Edinfach intention. With what thew of burgh manifestly intended to assume reason, or justice, could they make the functions of government. But Mr. Tooke 'responsible for all the how was this made our? The conexpressions or opinions of per ons vention was an unarined body of belonging to, or corresponding with men, which employed no force, nor the society of which he was a mem- was intended to use any. They ber? And if such responsibility was were directed to purfue their ohj.et to take place, how many who will by legal and constitutional meaos, hold their lives as tenants at will.of which they thought themselves comthe minister, are there to be found
plying with, as they certainly did no in this country?
more than what their superiors, in Mr. Fox, whose opinions were 1780, had done in London before known to be adverse to universal them. That Mr. Tooke's rame fuffrage, was left in a minority up- was wpon the books when the resoon that question, in the convention lation was taken to fend delegates to of 1780; and, as chairman of the the convention, was that kind of meeting, was obliged to sign its evidence which would not be valid resolutions. Yet was Mr. Fox not on a litigation for icl. or for such refponfible for the opinion of his an offence as Mooting a partridge, colleagues upon that occasion. or a hare. Yer such was the evi.
He then came to observe upon dence now brought to substantiate, the evidence. The firft charge made, against his client, the weighty charge was on a letter from the Norwich of high treason. The fact was, fociety, in 1792, requesting to know that though Mr. Tooke's name apwhat were the objects aimed at by peared upon the books, he was not the society for conititutional infor- present at this meeting. He was ination. But to this the answer, so sent for io Wimbledon, to assist on far from being enigmatical, was the occasion ; and because he des precise and explicit. It referred clined attending, he was branded by them to their former addresses, for some of the members as a joy of the character of their designs, and government. exhorted them to pursue fteadily If men's lives were to depend the same conftitutional methods. upon evidence so iligit, there was The letter from the Sheffield focie- an end at once to all security in ty, which had been insisted on fo England. From the whole tenor of much, required nothing more than the prisoner's conduct, it was clear, a reform upon the duke of Rich- / chai his views were to obtain a remond's plan. But had it been for:n in the representation of parotherwise, it had nothing to do with liament, and that only. There were, Mr, Tooke, who did not write the no doubt, as there always muit be letters himself, nor had the power in large boulies of min, difcordare of preventing their being written opinions. Some weie for univerial, by others.
and some for limited lif age ; but Another leading charge against the graod object of he societies and the prisoner, was the resolution of the convention was, to lay the the society to hold a convention in withes of the people for a reform