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Engraved for the Lady's Magazine.
Princes Caroline of Brunswick.
From the Original Miniature Painting.
M.ERSKINE'S DEFENCE of JOHN HORNE TOOKE Efq. on his TRIAL for HIGH TREASON.
R. Erskine commenced by a brief recapitulation of the occurrences on Hardy's trial, when he had contended against the united efforts of the most eminent gentlemen at the bar, who had been retained on the part of the crown. He rejoiced in the fuccefs which had marked his exertions in that trial, because he had been inftrumental in the acquittal of an obfcure and innocent individual. The emotions which he then felt were no less fincere than impreffive; but if there was a deficiency of talent on his part, it was his lot to have been very ably fupported by his learned and ingenious friend Mr. Gibbs.
[Mr. Efkine was here unaccountably interrupted by a noife among the ftrangers.]
Silence having been refumed, he proceeded by obferving, that fuch trifling interruptions could not in the leaft difconcert, or divert him from his grand object, In referring to Hardy's cafe, he had not only to combat the champions of the bar, but had to repel the paffions and prejudices of mankind, railed, at this particular crifis, to the highest degree of frenzy.
But this obfcure, unlettered man, obtained not only an honourable acquittal from a jury of his countrymen, but an enviable triumph againft prejudice, recorded in the joyful and fympathetic bofom of every good man, actuated by the most lively fenfations. When he reflected on the pleasure which he derived from the late glorious ftruggle in favour of innocence, he felt himself ftimu lated by thofe emotions which the Supreme Being only, who
"Sits in the whirlwind, and directs the ftorm," can enforce, to ftrengthen him in the caufe of the innocent. VOL. XXVI,
In explanation of the law of treafon, Mr. Erfkine referred to the fame authorities of Hale and Fofler as he did on the trial of Mr. Hardy. He then endeavoured to explain the difference of opinion between him and the attorney general, on the conftruction of the law. The attorney general confeffed, that to conftitute the crime of high treafon, it was neceflary that the guilt fhould exift in the mind; and the evidence he adduced was meant to prove this intent by the overt acts, disclaiming any recourfe to constructive accu mulation, or any other kind of treafon.
The charge against the prifoner was, by overt acts attempting to overthrow the king's government by force, and thus confpiring his death. But before they could convict him of fuch offence, they must be fatis. fied that force was to have been employed. Upon this point he cited the authority of Hale-that, when a man confpires the death of the king or his imprisonment, to gather company, or fend letters in execution thereof, is an overt at of high treason: but the overt act itself was not high treafon. It could go no further than to prove the trea fonable intention.
In the prefent cafe the attorney general had done all that he was entitled to do, and could prove no more than what was already before the jury; yet there was not the flighteft evidence of any defign being formed against the king's perfon, however the proceedings may be thought to operate against the government; and upon that 'ground he muft infit that the proof moft completely failed. The convention. at Edinburgh, which was the great ground-work of the charge, was evidently affembled for the purpose of deliberating on the means of reforming the abufes in government, and the reprefentation of the people in parliament, without the least in.
tention of accomplishing the object by force.
He was happy, on this occafion, to have that authority, which of all others was most desirable, namely, that of the lord chief justice Eyre himself, in his charge to the grand jury, to fhew that, whether the proceedings of the focieties or the convention led to the death of his majefty or not, was not a matter of inference but a matter of fact, upon which the jury was to decide. Nothing in the proceedings or publications of either breathed any fuch tendency; and the fame learned judge had told them, that no man was juftifiable in applying to the language of another any other meaning than that which he profeffed.
was the original founder of the fociety for conftitutional information. It had for its object a parliamentary reform-an object, for the attainment of which, the fociety of the Friends of the People was fince inftituted-an object by which greatest and best men of the country hoped to prevent unneceffary and ruinous wars; to remedy the abufes in the ftate; to prevent the increase of taxes, and guard against the profligate expenditure of our money. It was an object which the late earl of Chatham always had at heart, and which formed a leading
feature of his character.
By the ftatute of 25 Edward III. it was exprefsly provided, that no matter of implication fhould go to a jury on a charge of this nature, bat that the prifoner must be provably attainted. He would then af what were the proofs brought in fupport of this profecution? Lord
The duke of Richmond, whofe authority in the country was defervedly high, and who was a man not to be fufpected of taking up opinions on light or trivial grounds, had not only expreffed himself an advocate for a radical reform in the reprefentation, but published a letter, in which he declares it to be indifpenfable, and afferts the inherent right of the people to enforce it. Thefe opinions, taken up fo deli
Hale faid, that fuch charges fhouldberately, and fo generally circulated with fuch prodigious effect, that ́ nobleman mult, no doubt, ftill entertain, however inopportune he may think the prefent moment to be for acting upon them.
He (Mr. Erfkine) differed much from the noble duke refpecting uni verfal fuffrage; but there were many who held different fentiments. The noble duke vindicated the right of the people to enforce the principle of univerfal fuffrage; and the crown lawyers of the day never brought him to an account for it. Mr. Tooke was an advocate for a parliamentary reform upon a much more moderate plan, and yet his blood is called for, while the duke of Richmond is not thought to have offended.
not be made out by inference or ftretches of wit; neither would he attempt to defend, his client by wit, if he poffeffed any. Before fo grave a bench, and on fo folemn an occafion, all appearance of levity would be indecorous, otherwife there was no part of this evidence which was not open to the broadest ridicule. What was become of the humane character of the British law, if the life of a fubject was to depend upon evidence too light to pluck a feather from a fparrow's wing, and which would not be admiffible in a lawfuit refpecting 10l?
If the jury, after hearing him in the prefent addreís, fhould think it necellary to go into any further evidence, he would prove to them, that major Cartwright, a gentleman of the first character, talents, and refpectability in the kingdom,
Why were the feven perfons now in Newgate felected as traitors, and their accomplices fpared? Could any man in his fenfes believe, that thefe
hese seven men intended to erect | England. But by the term "anohemfelves into a parliament, and ther convention," it was eviden affume legislative functions? The that it was meant to be precisely cafe itself, fimply ftated, conveyed fimilar to that which was held in to the mind of every man, interna! Scotland. The folicitor general ar evidence, that they could have no gued, that the convention at Elinfuch intention. With what fhew of burgh manifeftly intended to affume reafon, or juftice, could they make the functions of government. But Mr. Tooke refponfible for all the how was this made out? The conexpreffions or opinions of perfons vention was an unarmed body of belonging to, or correfponding with men, which employed no force, nor the fociety of which he was a mem- was intended to ufe any. They ber? And if fuch refponfibility was were directed to purfue their object to take place, how many who will by legal and conftitutional meaus, hold their lives as tenants at will. of which they thought themfelves comthe minifter, are there to be found plying with, as they certainly did no in this country? more than what their fuperiors, in 1780, had done in London before them. That Mr. Tooke's name was upon the books when the refolution was taken to fend delegates to the convention, was that kind of evidence which would not be valid on a litigation for 1cl. or for fuch an offence as fhooting a partridge, or a hare. Yet fuch was the evidence now brought to fubftantiate, against his client, the weighty charge of high treafon. The fact was, that though Mr. Tooke's name appeared upon the books, he was not prefent at this meeting. He was fent for to Wimbledon, to affift en the occafion; and because he declined attending, he was branded by fome of the members as a spy of government.
Mr. Fox, whofe opinions were known to be adverfe to univerfal fuffrage, was left in a minority upon that question, in the convention of 1780; and, as chairman of the meeting, was obliged to fign its refolutions. Yet was Mr. Fox not refponfible for the opinion of his colleagues upon that occafion.
He then came to obferve upon the evidence. The firft charge made, was on a letter from the Norwich fociety, in 1792, requesting to know what were the objects aimed at by the fociety for conititutional informnation. But to this the answer, so far from being enigmatical, was precife and explicit. It referred them to their former addreffes, for the character of their defigns, and exhorted them to purfue fteadily the fame conftitutional methods. The letter from the Sheffield fociety, which had been infifted on fo much, required nothing more than a reform upon the duke of Richmond's plan. But had it been otherwise, it had nothing to do with Mr. Tooke, who did not write the letters himself, nor had the power of preventing their being written by others.
Another leading charge against the prifoner, was the refolution of the fociety to hold a convention in
If men's lives were to depend upon evidence fo flight, there was an end at once to all fecurity in England. From the whole tenor of the prifoner's conduct, it was clear, that his views were to obtain a reform in the reprefentation of parliament, and that only. There were, no doubt, as there always must be in large bodies of men, difcordant opinions. Some we.e for univertal, and fome for limited fuffage; but the grand object of the focieties and the convention was, to lay the wishes of the people for a reform before