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their regret, that a work which may be supposed to lower the dignity of their idol, should have been rendered accessible to the profane' vulgar. But we must be contented briefly to remind them, that the scraps of a portfolio can never, by the thinking part of mankind, be assumed as the basis of literary reputation ; that the volumes before us are not infected with the nauseous vanity which pervades the author's diary of his life--but, under a rude and slovenly exterior, contain much curious information ; and that, unless we be permitted to contemplate distinguished individuals in their unreserved moments, we shall be in danger of forming very erroneous estimates of human character and of human nature.

ART. IV. Speeches of Lord Erskine when at the Bar, on Mis

cellaneous Subjects. 8vo. pp. 248. Ridgeway, London, 1812.


is now a considerable time since we called the attention of

our readers to the very interesting and important publication of which this volume forms the sequel. The opinions then expressed, although known to be those entertained by the enlightened profession of which Lord Erskine was the chief ornament, have, as migåt be expected from party violence and ignorance, encountered some opposition ;-- chiefly, however, among persons at a distance from the theatre where his talents were displayed, and not the most capable, in other respects, of forming a sound judgment on such subjects. The remarks which we made on the political persecutions of 1794, have been also attacked; and, as might be expected, with some bitterness, by the few remaining adherents of the system,—and the supporters of those weak and contemptible politicians who are seeking to remove the worst enemy they have to contend with--popular discussion-by reviving the measures formerly pursued against the liberty of the press. Having now had some leisure for maturely weighing both branches of the subject, the merits of the orations in question, and the character of the measures of 1791,-and having had ample opportunities of observing the way in which those topics are canvassed by such as are competent to handle them, we have no hesitation in avowing, that our sentiments remain wholly unchanged. Not a word have we heard derogatory to the warm and unbought applause extorted from us by the great services which Lord Erskine has rendered to the cause of Liberty; and we fancy that all who have had time to study the speeches, now go along with us in the tribute of admiration paid to their transcendent merits. Indeed there seems but one voice



the matter. We heard some time ago of an exception or two, the particulars of which have escaped us; but we believe there was a newspaper written in the Scottish tongue, in some remote part of the country, which professed an inability to understand the beauties of the composition, possibly from ignorance of the langnage in which the speeches were delivered : and it was said, that an attorney, somewhere in Scotland, (and most likely from the same cause), was greatly offended at our praise of the speech for Stockdale, which he professed an inability to enter into ;- but was confident the best • Session papers' were very different things. With these slight exceptions, we take the opinion of the country, and of ever part of the world where the language is understood, to be that of the most unbounded admiration of these exquisite specimens of judicial oratory,-and of great obligations to the editor of the collection.

Those obligations are now considerably increased by the publication of the present volume, which contains some speeches less known to the world, because upon subjects of a private nature; but not at all inferior in oratorical merit to the finest of Lord Erskine's performances in State Trials. It is with great delight that we revert to so interesting a task as that of tracing the skill and genius of a first-rate orator, and of holding up his exertions for the instruction of those who may feel within themselves one of the noblest passions of our nature-love of the fame to be acquired, and the gratification to be felt, in wielding the feelings of a popular assembly ;-a passion only second to that of which Lord Erskine too holds forth so bright an example-the love of earning that fame by the services which, in a free country, eloquence may render to the rights of the people, and the best interests of mankind.

This volume contains seven speeches of Mr Erskine; three of which are on trials of a public nature--the speech for Hadfield, that for the Madras Council, and that for Cuthell. The other four are speeches in private actions; two in cases of adultery, one in an action for breach of promise of marriage, and one in the Bishop of Bangor's case. There is a circumstance, unavoidable perhaps, but greatly to be lamented, in the publication of the two speeches in cases of seduction; we mean the pain which a revival of such discussions must give to the feelings of the parties and their families. The publicity of their story inflicts some of the most acute of the sufferings arising from such transactions at the time, and it is painful to think how severely the same feelings must be wounded by the revival of the subject at a dis tance of time, when those may have become capable of being wounded, over whose happily tender years the first blast of evil fame had passed innoxious.


For this serious evil we fear there is no remedy; yet we do not the less regret it; and, in alluding to the cases in question, and quoting passages, we shall carefully abstain from mentioning names, that we may not have to reproach ourselves with spreading the mischief:

The speech for Hadfield contains one of the most sound and able disquisitions on the subject of insanity, as matter of defence against à criminal charge, that is any where to be found. Indeed, we view it as a peculiarly important addition to legal learning, and as going far to settle the question within what limits this defence shall be available. Most of our readers must recollect the singular transaction which gave rise to it. We prefer recalling it to the minds of such as do not, in the words of Mr Erskine's exordiun; for they convey a lesson as well as a narrative of the fact.

• The scene which we are engaged in, and the duty which I amí not merely privileged, but appointed by the authority of the Court to perform, exhibits to the whole civilized world a perpetual monument of our national justice.

“The transaction, indeed, in every part of it, as it stands recorded in the evidence already before us, places our country, and its government, and its inhabitants, upon the highest pinnacle of human elevation. It appears, that upon the 15th day of May last, his Majesty, after a reign of forty years, not merely in sovereign power,


spontaneously in the very hearts of his people, was openly shot at (or to all appearance shot at) in a public theatre in the centre of his capital, and amidst the loyal plaudits of his subjects, YET NOT A AIR OF THE HEAD OF THE SUPPOSED ASSASSIN WAS TOUCHED. In this unparalleled scene of calm forbearance, the King himself, though he stood first in personal interest and feeling, as well as in command, was a singular and fortunate example.The least appearance of emotion on the part of that august personage, must unavoidably have produced a scene quite different, and far less honourable than the Court is now witnessing ; but his Majesty remained unmoved, and the person apparently offending was only secured, without injury or reproachi, for the business of this day.' p: 5.

He then describes the peculiar indulgences which our treason laws extend to the accused; in so much that he who, for an attack upon the meanest individual, would be hurried away to trial

, without delay, or counsel, or knowledge of witnesses, or of jurors, or of charges, is, when charged with a murderous design against the sovereign of the country, covered all over with the

armour of the law;'-a distinction which, when soberly considered, we may in passing remark, affords praise to the English law of treasons, at the expense of the other branches of criminal jurisprudence. Mr Erskine, pursuing the topic, enters VOL. XIX, NO. 38.




apon a train of reflexions, which, we think, all will acknowledge to be profound, who are not resolved to call every thing shallow and einpty, which they are forced to admit is beautiful and brilliant.

Gentlemen, when this melancholy catastroplre happened, and the prisoner was arraigned for trial, I remember to have said to some How present, that it was, at first view, difficult to bring those indulgent exceptions to the general rules of trial within the principle which dictated them to our humane ancestors in cases of treasons against the political government, or of rebellious conspiracy againsť the person of the King. In these cases, the passions and interests of great bodies of powerful men being engaged and agitated, a counterpoise became necessary to give composure and impartiality to criminal tribunals ; but a nere murderous attack upon the King's perkon, not at all connected with his political character, seemed a case to be ranged and dealt with like a similar attack upon any private Inan.

• But the wisdom of the law is greater than any man's wisdom how much more, therefore, than nie! An attack upon the King is considered to be parricide against the State ; and the jury and the witnesses, and even the Judges, ate the children. It is fit, on that account, that there should be a solemn pause before we rush to judgment: and what can be a more sublime spectacle of justice than to see a statutable disqualification of a whole nation for a limited pes riod, a fifteen day's quarantine before trial, lest the mind should be subject to the contagion of partial affections !'* p. 6, 7.

İle now enters upon the subject, and cites the authorities of our great criminal lawyers, especially Lord Hale, as establishing ihe rule, that it must be a total and not a partial insanity which shall excuse. The rule, however, is of difficult application ; and Lord Hale himself has admitted it when he says, that it is very difficult to define the invisible line which divides perfect and partial insanity ; and aclels, 'it must rest upon circumstances,

duly to be weighed and considered both by judge and jury, lest on the one side there be a kind of inhunianity towards the

defects of human nature; or, on the other side, too great an • indulgence given to great crimes.' The arguments of Mr Erskine are addressed to the proper means of applying this rule; and they are, in our humble apprehension, equally ingenious and satisfactory. He first admits, that there is a material difference between the application of it to civil and to criminal cases. In the former, the law will justly avoid a man's act, if he be proved to be non compos mentis, although the act in question cannot be referred to the peculiar impulse of the malady ;



* There must be fifteen days between arraignment and trial.

or even, though to all appearance it may be separate from it, provided only it be shown, that, at the time of doing the civil act, he was not of sound mind. But, in judging of a criminal act, some connexion must always be traced between the act and the delusion under which the person labours ;-it must appear to flow from that delusion.' Here Mr Erskine clears away a misapprehension of the phrase total insanity, or total deprivation of mind and understanding, as used by Lord Coke and Lord Hale. • If,' says he, "a TOTAL deprivation of memory was intended by • these great lawyers to be taken in the literal sense of the words; .-if it was meant, that, to protect a man from punishment he

must be in such a state of prostrated intellect as not to know • his name, nor his condition, nor his relation towards others

that, if a husband, he should not know he was married ; or, • if a father, could not remember that he had children

; nor • know the road to his house, nor his property in it-- then no • such madness ever existed in the world. It is IDIOCY alone

which places a man in this helpless condition; where, from an original mal-organization, there is the human frame alone

without the human capacity. But in all the cases which have • filled Westminster Hall with the most complicated considera' tions--the lunatics, and other insane persons who have beeri • the subjects of them, have not only had memory, in my sense

of th expressionthey have not only had the most perfect • knowledge and recollection of all the relations they stood in

towards others, and of the acts and circumstances of their

lives, but have, in general, been remarkable for subtlety and • acuteness. '- These,' he adds, are the cases which fre

quently mock the wisdom of the wisest in judicial trials; because such persons often reason with a subtlety which puts

in ' the shade the ordinary conceptions of mankind : their conclu

sions are just, and frequently profound; but the premises from which they reason, WHEN WITHIN THE RANGE OF THE MALADY,

are uniformly false :--not false from any defect of knowledge " or judgment; but because a delusive images the inseparable

companion of real insanity, is thrust upon the subjugated • understanding, incapable of resistance, because unconscious of • attack.' The doctrine contended for is clearly expressed, and with a singular felicity of diction too, in the following pasage.

· Delusion, therefore, where there is no frenzy or raving madness, is the true character of insanity; and where it cannot be predicated of a man standing for life or death for a crime, he ought not, in my opinion, to be acquitted ; and if courts of law were to be governed by any other principle, every departure from sober, rational conduct, 22




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