GIFT OF W. X. Porter IReabfngg tor Stubentg SPECIMENS. MODERN I I COMPILED BY GEORGE P. BAKER Assistant Professor in English, Harvard University SECOND EDITION, REVISED NEW YORK HENRY HOLT AND COMPANY 1897 COPYRIGHT, 1893, 1897, BY HENRY HOLT & CO. THE MERSHON COMPANY PRESS, . J. PREFACE. THIS little book has been compiled to meet two needs that have arisen in the editor's experience with classes in Argumentative Composition at Harvard University and Wellesley College. The first need is for a small, inexpensive collection of specimens of argu- mentation, edited especially for classes in Argumenta- tive Composition. Constantly students have asked : " Where can we find the speeches from which the illus* trations in the lectures are drawn, and other arguments that illustrate the suggestions and the rules that have been given us ? " The difficulty in referring such stu- dents to the existing collections of speeches and argu- ments has been of several kinds. To become really familiar with the necessary illustrations, with the speeches chosen, a student must own the book contain- ing them, but the large collections are too expensive for most students. The smaller and cheaper books al- most surely lack one of the speeches most desired by the instructor. To ask a student to read one illustration here, another there, is to put the speeches as a set be- yond his purse, or if he is to look up all in some library, to make too great a demand on his time. Moreover, nearly all of the collections contain many specimens IV PREFACE. of oratory famous, not for their power as arguments but for mere brilliancy of style or for the conditions under which they were given. Students browsing in such books unguided as is the case in nearly all the collections by any notes to point out what is the really great argumentative work and why it is great, are pretty sure to be attracted by what is clever and entertaining merely, rather than by what is structural!) perfect and convincing in argument. It has seemed worth while, then, to select a half-dozen arguments in which students could find corroboration of the lectur- ers' words and further illustrations of them, and to edit these carefully with notes to show the condition under which the arguments were uttered ; wherein their power lies ; and whence it comes. The editor has tried, also, in his selecting, to find material that should show to the beginner in Argu- mentative Composition what, often, he does not seem to understand, that argumentation is not a thing apart, confined to law courts, but has its important place in literary and scientific work. For this purpose, Lord Mansfield on the Evans case, the "Junius" letter, and Professor Huxley's lecture, are printed side by side. The second need arose from a special feature of the work in Argumentative Composition at Harvard College that may require a word of explanation. All the prescribed argumentative writing at the college has greatly improved since a system of briefs prelimin- ary to the written arguments was arranged. By this system a student makes an outline for his argumenta- tive essay, consisting of introductory headings and of PREFACE. V the headings of the brief proper. The former sum- marize, as briefly as possible, the facts that must be made clear before the argument itself can begin ; the latter are all phrased as reasons for the conclusion to be reached, and are carefully correlated by numbers and letters, so that the relations of the different parts, the structure as a whole, and the meaning at every point, shall be clear to a reader. These briefs, cor- rected by the instructors for structural or other faults, are returned to the students* who revise them in ac- cordance with the written suggestions of the instruc- tors, and make the revised briefs the bases of their " Forensics," so-called. A class, before drawing briefs from its own material, is asked to make a brief of some masterpiece of argu- mentation, that it may learn what a brief is, and may recognize the careful structure that underlies all great argumentation. To provide material for this first brief of all has been a problem. As Mr. Johnston 1 has noted, modern public speaking is losing the care- ful structure that belonged to the orations of the past just what the student of brief work needs to study. Therefore, much that the collections of speeches con- tain is unavailable for briefs. Nor must the selection be long, for in analyzing a long argument a student will get hopelessly involved. Finally, a student cannot be asked to buy a book to get the material for but one exercise of the year. The editor hopes that this com- pilation will meet these difficulties that have faced him each year when a class was studying the drawing of briefs. Three of the selections, Lord Mansfield's speech, the " Junius" letter, and Professor Huxley's 1 American Orations. VI JP&EfACE. lecture, are so marked in structure that to draw a brief from any one of them should not be too difficult a task for a beginner in Argumentative Composition. So brilliant, too, are all of them as arguments that the analysis necessary for the brief will in its results more than repay the student. That the beginner may see what a brief is and the way in which it may be drawn from an argument, the brief of Lord Chatham's speech and the original have been printed. Because some of the speeches were to be used for briefs, it has several times been difficult, in the edit- ing, to point out in detail the method by which the great effects are gained, without giving such an out- line of the speech that a student, reading it, could have no further difficulty in making a brief of the speech. If in any place the analysis of a speech seems inadequate the fault should be attributed to this reason, for in several places it seemed wisest to leave to the student, guided by his instructor, detailed analysis of methods. The editor hopes, then, that the work will be useful in three ways : as a fund of illustration for lectures on Argumentative Composition which a class may easily possess in common with its instructor ; as material for training in the drawing of briefs ; and for analyses by the class or the instructor, by the methods used in the notes, not merely for structure but also for persuasive methods and argumentative skill. - Though the first four selections are intended espe- cially to bear on the drawing of briefs, Lord Erskine's speech on the handling of evidence, and Henry PREFACE. Vll Ward Beecher's speech on persuasion, all of these illustrate more than one idea, and in the book as a whole, the student should find illustrations for nearly all, if not all, of the rudimentary rules for argumen- tation. GEO. P, BAKER. CAMBRIDGE, MASS., September 18, 1893. CONTENTS. PACK Preface, iii Directions for Drawing a Brief, , . . . ix Specimen Brief, .....,.! /Material for Briefs* Lord Chatham, on Removing Troops from Boston, . . 7 Lord Mansfield, in the Case of Evans, .... 22 Junius, Letter to the Printer of the Public Advertiser^ . 41 T. H. Huxley, Lecture I. of Three Lectures on Evolution, 60 argument in (SeneraL Lord Erskine, Defense of Gordon, . . , . . 86 persuasion, Henry Ward Beecher, Liverpool Speech, . . .154 Lord Macaulay, Speech on Copyright, .... 179 DIRECTIONS FOR DRAWING A BRIEF.' A good brief should be divided into three parts : (i) The Introduction ; (2) The Brief Proper ; (3) The Conclusion. 1. The Introduction should state as concisely as possible, by suggestive phrases of a line or two, the facts necessary to an understanding of the discussion itself : namely, how the question arose ; what are the facts admitted by both sides ; and by definition and exposition, what is the exact point at issue. It should clear away all extraneous matter, and should place the essential idea clearly before the reader. 2. The Brief Proper should by a series of headings and subheadings very concisely make clear to any intelligent reader the development of the argument by which the writer expects to prove the affirmative or the negative of the question he has clearly stated in the Introduction. From all the evidence for and against him in the case, the writer should first select the main ideas that prove his conclusion. These he should arrange in a climactic order leading up to his conclusion, the strongest idea coming last under ordi- 1 For further details in regard to drawing briefs, see Chapter IV of " Principles of Argumentation." G. P. Baker. Bostoo: Ginn #Co-, 1895. X DIRECTIONS FOR DRA WING A BRIEF. nary circumstances. Under these main ideas he should next place the ideas that support these but are not by themselves equal in importance to the main headings. In stating these subheadings he should be careful to keep the climactic order. All of the main headings and the subheadings should read as reasons for the conclusion. The correlation of all the parts should be distinctly marked by letters and numbers. The Proof that a writer will use divides itself roughly into two parts : direct proof and refutation. When a writer simply states an idea of his own and supports it, that is direct proof ; when he takes an idea urged against him by his opponent and tries to overcome it, he refutes. If the objection is a broad one, to the writer's case as a whole, it should stand by itself, marked refutation ; if it is an objection to some division or subdivision of the writer's work, he will meet it best in treating that division or subdivi- sion. That is, his idea is proved not only by proving #., b., and c., reasons for it, but by disproving the state- ment d. made by his opponent. 3. The Conclusion simply sums up briefly the argu- ment, showing clearly how it leads to the conclusion, which unless it is given at the beginning as the prop- osition should always be stated. SPECIMEN BRIEF.' DRAWN FROM THE SPEECH OF LORD CHATHAM ON HIS MOTION FOR THE IMMEDIATE REMOVAL OF THE BRITISH TROOPS FROM BOSTON. Introduction. The present course of the Ministry suggests un- fairness. ii. The Ministr)' has been guilty of unfairness, namely of misrepresentation, for (a) Their representations that led to the passage of the measures obnoxious to the American people have been proved false, for (i) The ministers said that these measures would overawe the Americans, but the measures have solidified the resistance of the Americans. in. Therefore, the troops should be immediately with- drawn from Boston. 1 For further illustration of briefs, good and bad, see " Principles of Argumentation." 2 SPECIMEN BRIEF. IV. But a hearer, in considering this attempt at justice, should remember that to try to be just to America is not necessarily to exempt her from all obedience to Great Britain. Brief Proper. The removal of the troops is necessary, because A. It will show the willingness of the English to treat amicably. B. The resistance of the Americans was necessary because I. The obnoxious acts of Parliament were tyrannical. C. The means of enforcing the measures of Par- liament have failed, for I. The army of General Gage is " penned up pining in inglorious inactivity." II. The objection that the presence of this army in Boston is a safeguard is untrue, for (a) It is powerless, and held in contempt. (b) It is an irritation to the Americans. (c) The objection that General Qage is needlessly inactive is untrue, for (i) Any activity on his part would mean " civil and unnatural war." D. If Parliament tries by the aid of the army to enforce its measures, the result will be bad, for I. If Parliament were victorious, it would be over an embittered people. SPECIMEN BRIEF. 3 II. The troops are not strong enough to resist three million united, courageous people. III. Persecution of these men whose fathers left their homes to escape it should cease, since (a) The objection of the Ministry that the Americans " must not be heard " is unjust, since (i) It " lumps the innocent with the guilty."* The statement that "the union in America can- not last " is untrue, for I. The evidence of the so-called " commercial bodies " is unreliable, for (a) They do not really represent the class for whom they profess to speak, (b) And they are paid agents of the Gov- ernment. (c) Even if they did represent the com- mercial class of America, their judgment would be untrustworthy, for (1) Not the commercial class, but the farming class, are the strength of a nation ; (2) And the American farmers are unitedly arrayed for liberty. II. The evidence of an authority (Dr. Franklin plainly hinted), proves that the Americans, for the sake of liberty, would endure far more than they have as yet suffered, even war and rapine. F, The statement that the Americans should be punished for illegal violence is untrue, for SPECIMEN BRIEF. I. A chance for reconciliation should not be missed. II. Thirty thousand in Boston should not be punished for the fault of forty or fifty. III. Punishment means arousing the unap- peasable wrath of the whole American people. IV. Even if the English people are victorious, they cannot control the great tracts of con- quered country. V. The resistance should have been foreseen, for (a) The spirit that resists in America is that of all English stock, that which established the essential maxim of Eng- lish liberty, " No taxation without the consent of the taxed." VI. The resistance will become too strong to be overcome, for (a) The English Whigs will aid them, for (i) The spirit that moves the Americans is that which has always belonged to the Whigs. (b) The Irish will aid them, for (i) They have always maintained the ideas the Americans support. (c) The means to oppose this united body is weak, for (i) A few regiments in America and 18,000 men at home must oppose three million Americans, millions of Englishmen, and all the Irish. SPECIMEN BRIEF. 5 (2) And ministerial tricks against it will fail, for (a) The result must inevitably be A "checkmate" for the minis-- ters. G. This removal of the troops must precede any other step, because I. The fear and the resentment of the Ameri- cans must first of all be remedied ; II. While the troops remain, resentment will remain, for (a) Any measures secured by force would be, with the army in Boston, doubly irritating. (fr) When, as is the case, force cannot be used, the mere presence of the army, though it is itself in danger, is irritating. H The views of Congress are moderate and rea- sonable. I. It is an old maxim that the first concession comes most fitly from the superior. J. While every policy urges withdrawal of the troops, every danger warns the English from keeping to the old course, for I. That means foreign war, for (a) France and Spain are watching for an advantageous chance to interfere. II. That means domestic trouble, for (a) The king will lose all his power. (b) The kingdom will be utterly undone. 1 1 Note that a conclusion is not printed by itself because, as the proposition, it has been given in Introduction, III. SPECIMENS OF ARGUMENTATION. MATERIAL FOR BRIEFS. 3Lor> Gbatbam, Born 1708. Died 1778. ON A MOTION FOR AN ADDRESS TO HIS MAJESTY, TO GIVE IMMEDIATE ORDERS FOR REMOVING HIS TROOPS FROM BOSTON. Delivered in the House of Lords, January 20, 1775. [The insistence of the King that the duty on tea should be main- tained, when all the other taxation of the Colonies had been aban- doned, led, in 1773, to the outbreak at Boston, when the cargoes of the English tea ships were thrown into the harbor. The King, as a result of this action, seemed bent upon turning his American sub- jects into rebels by treating them as rebellious. The Ministry pre- sented to and carried through Parliament several very determined measures, bills to close the port of Boston, to deprive the Massa- chusetts Colony of its charter, to bring persons accused of capital offenses to England for trial, and sent troops to Boston to enforce them. It was asserted by the ministers that these measures would separate Massachusetts from the rest of the colonies, and would overawe her. Instead, Massachusetts called out and armed her militia, and all the other states, except Georgia, took up her cause, sending delegates to the Congress which in September, 1774, met at Philadelphia. This Congress issued an " Address to the People of Great Britain," stating the case of the Colonies. Still, though 8 LORD CHATHAM. this determined front was shown by the Colonies, they generally shrank from rising against the mother country. There seemed still to be a chance for reconciliation. Lord Chatham, who had steadily opposed the disastrous measures of Lord North and the King, hoped for much from concessions, and in January, I775 took Dr. Franklin into his councils. On the twentieth of the month, when Lord Dartmouth, Secretary of State, laid before the House of Lords various papers concerning American affairs, Lord Chat- ham moved "An Address to his Majesty for the Immediate Removal of the Troops from Boston," and supported his motion with the following speech.] MY LORDS : After more than six weeks' posses- sion of the papers now before you, on a subject so momentous, at a time when the fate of this nation hangs on every hour, the Ministry have at length con- descended to submit to the consideration of this \ House, intelligence from America with which your Lordships and the public have been long and fully acquainted. The measures of last year, my Lords, which have produced the present alarming state of America, i< were founded upon misrepresentation. They were violent, precipitate, and vindictive. The nation was told that it was only a faction in Boston which opposed all lawful government ; that an unwarrantable injury had been done to private property, for which the jus- ij tice of Parliament was called upon to order repara- tion ; that the least appearance of firmness would awe the Americans into submission, and upon only passing the Rubicon we should be " sine clade victor" That the people might choose their representatives 2< under the influence of those misrepresentations, the Parliament was precipitately dissolved. Thus the ON REMOVING TROOPS FROM BOSTON. II mercial restraints, as from taxation for revenue, as being unrepresented here, I pronounce them futile, frivolous, and groundless. When I urge this measure of recalling the troops 5 from Boston, I urge it on this pressing principle, that it is necessarily preparatory to the restoration of your peace and the establishment of your prosperity. It will then appear that you are disposed to treat amica- bly and equitably ; and to consider, revise, and repeal, 10 if it should be found necessary (as I affirm it will), those violent acts and declarations which have dis- seminated confusion throughout your empire. Resistance to your acts was necessary as it was just ; and your vain declarations of the omnipotence 15 of Parliament, and your imperious doctrines of the necessity of submission, will be found equally im- potent to convince or to enslave your fellow-subjects in America, who feel that tyranny, whether ambitioned by an individual part of the Legislature, or the bodies 20 who compose it, is equally intolerable to British sub- jects. The means of enforcing this thraldom are found to be as ridiculous and weak in practice as they are un- just in principle. Indeed, I cannot but feel the most 25 anxious sensibility for. the situation of General Gage, and the troops under his command ; thinking him, as I do, a man of humanity and understanding; and entertaining, as I ever will, the highest respect, the warmest love for the British troops. Their situa- 3otion is truly unworthy ; penned up pining in inglo- rious inactivity. They are an army of impotence. You may call them an army of safety and of guard ; 10 LORD CHATHAM. I wish, my Lords, not to lose a day in this urgent, pressing crisis. An hour now lost in allaying ferments in America may produce years of calamity. For my own part, I will not desert, for a moment, the conduct of this weighty business, from the first to the last. 5 Unless nailed to my bed by the extremity of sickness, I will give it unremitted attention. I will knock at the door of this sleeping and confounded Ministry, and will rouse them to a sense of their danger. When I state the importance of the colonies to this 10 country, and the magnitude of danger hanging over this country from the present plan of misadministra- tion practiced against them, I desire not to be under- stood to argue for a reciprocity of indulgence between England and America. I contend not for indulgence, 15 but justice to America ; and I shall ever contend that the Americans justly owe obedience to us in a limited degree they owe obedience to our ordinances of trade and navigation ; but let the line be skilfully drawn between the objects of those ordinances and 20 their private internal property. Let the sacredness of their property remain inviolate. Let it be taxable only by their own consent, given in their provincial assemblies, else it will cease to be property. As to the metaphysical refinements, attempting to show that the 25 Americans are equally free from obedience and corn- makes a hearer doubt the sincerity of the Ministry, passes to a direct charge that only misrepresentation (evidently by the Ministry, though this is not directly stated) led to actions of Parliament which resulted in the ignominy that Lord Chatham paints by an illustra- 30 tion. The words of this illustration he carefully selected to goad his hearers to contempt for those guilty of the misrepresentation. ON REMOVING TROOPS FROM BOSTON. II mercial restraints, as from taxation for revenue, as being unrepresented here, I pronounce them futile, frivolous, and groundless. When I urge this measure of recalling the troops 5 from Boston, I urge it on this pressing principle, that it is necessarily preparatory to the restoration of your peace and the establishment of your prosperity. It will then appear that you are disposed to treat amica- bly and equitably ; and to consider, revise, and repeal, 10 if it should be found necessary (as I affirm it will), those violent acts and declarations which have dis- seminated confusion throughout your empire. Resistance to your acts was necessary as it was just ; and your vain declarations of the omnipotence 15 of Parliament, and your imperious doctrines of the necessity of submission, will be found equally im- potent to convince or to enslave your fellow-subjects in America, who feel that tyranny, whether ambitioned by an individual part of the Legislature, or the bodies 20 who compose it, is equally intolerable to British sub- jects. The means of enforcing this thraldom are found to be as ridiculous and weak in practice as they are un- just in principle. Indeed, I cannot but feel the most 25 anxious sensibility fon the situation of General Gage, and the troops under his command ; thinking him, as I do, a man of humanity and understanding ; and entertaining, as I ever will, the highest respect, the warmest love for the British troops. Their situa- 3otion is truly unworthy ; penned up pining in inglo- rious inactivity. They are an army of impotence. You may call them an army of safety and of guard ; 12 LORD CHATHAM. but they are, in truth, an army of impotence and con. tempt ; and, to make the folly equal to the disgrace, they are an army of irritation and vexation. But I find a report creeping abroad that ministers censure General Gage's inactivity. Let them censure 5 him it becomes them it becomes their justice and their honor. I mean not to censure his inactivity. It is a prudent and necessary inaction ; but it is a miserable condition, where disgrace is prudence, and where it is necessary to be contemptible. This tame- 10 ness, however contemptible, cannot be censured ; for the first drop of blood shed in civil and unnatural war might be " immedicabile vulnus" I therefore urge and conjure your Lordships imme- diately to adopt this conciliating measure. I will 15 pledge myself for its immediately producing concilia- tory effects, by its being thus well-timed ; but if you delay till your vain hope shall be accomplished of triumphantly dictating reconciliation, you delay for- ever. But, admitting that this hope (which in truth 20 is desperate) should be accomplished, what do you gain by the imposition of your victorious amity ? You will be untrusted and unthanked. Adopt, then, the grace, while you have the opportunity, of reconcile- ment or at least prepare the way. Allay the ferment 25 preparing in America, by removing the obnoxious hos- tile cause obnoxious and unserviceable ; for their merit can be only inaction : " Non dimicare est vin- cere" their victory can never be by exertions. Their force would be most disproportionately exerted against 30 a brave, generous, and united people, with arms in their hands, and courage in their hearts : three mil- ON REMOVING TROOPS FROM BOSTON. 13 lions of people, the genuine descendants of a valiant and pious ancestry, driven to those deserts by the narrow maxims of a superstitious tyranny. And is the spirit of persecution never to be appeased ? Are 5 the brave sons of those brave forefathers to inherit their sufferings, as they have inherited their virtues ? Are they to sustain the infliction of the most oppres- sive and unexampled severity, beyond the accounts of history or description of poetry : " Rhadamanthus habet lodurissima regna, castigatque AUDITQUE." So says the wisest poet, and perhaps the wisest statesman and politician. But our ministers say the Americans must not be heard. They have been condemned unheard. The indiscriminate hand of vengeance has lumped 15 together innocent and guilty ; with all the formalities of hostility, has blocked up the town [Boston], and reduced to beggary and famine thirty thousand in- habitants. But his Majesty is advised that the union in 20 America cannot last. Ministers have more eyes than I, and should have more ears ; but, with all the in- formation I have been able to procure, I can pro- nounce it a union solid, permanent, and effectual. Ministers may satisfy themselves, and delude the 25 public, with the report of what they call commercial bodies in America. They are not commercial. They are your packers and factors. They live upon noth- ing, for I call commission nothing. I speak of the ministerial authority for this American intelligence 3 the runners for government, who are paid for their intelligence. But these are not the men, nor this the influence, to be considered in America, when we esti- 14 LORD CHATHAM. mate the firmness of their union. Even to extend the question, and to take in the really mercantile circle, will be totally inadequate to the consideration. Trade, indeed, increases the wealth and glory of a country ; but its real strength and stamina are to be 5 looked for among the cultivators of the land. In their simplicity of life is found the simpleness of virtue the integrity and courage of freedom. These true, genuine sons of the earth are invincible ; and they surround and hem in the mercantile bodies, ic even if these bodies (which supposition I totally disclaim) could be supposed disaffected to the cause of liberty. Of this general spirit existing in the British nation (for so I wish to distinguish the real and genuine Americans from the pseudo-traders I have 15 described) of this spirit of independence, animating the nation of America, I have the most authentic in- formation. It is not new among them. It is, and has ever been, their established principle, their confirmed persuasion. It is their nature and their doctrine. 2c I remember, some years ago, when the repeal of the Stamp Act was in agitation, conversing in a friendly confidence with a person of undoubted re- spect and authenticity, on that subject, and he assured me with a certainty which his judgment and oppor-2$ tunity gave him, that these were the prevalent and steady principles of America that you might destroy their towns, and cut them off from the superfluities, perhaps the conveniences of life, but that they were prepared to despise your power, and would not lament 30 their loss, while they have what, my Lords ? their woods and their liberty. The name of my authority, OAT REMOVING TROOPS PROM BOSTON. 15 if I am called upon, will authenticate the opinion irrefragably. a If illegal violences have been, as it is said, com- mitted in America, prepare the way, open the door 5 of possibility for acknowledgment and satisfaction ; but proceed not to such coercion, such proscription ; cease your indiscriminate inflictions ; amerce not thirty thousand oppress not three millions for the fault of forty or fifty individuals. Such severity of 10 injustice must forever render incurable the wounds you have already given your colonies ; you irritate them to unappeasable rancor. What though you march from town to town, and from province to prov- ince ; though you should be able to enforce a tempor- 15 ary and local submission (which I only suppose, not admit), how shall you be able to secure the obedience of the country you leave behind you in your progress, to grasp the dominion of eighteen hundred miles of continent, populous in numbers, possessing valor, 20 liberty, and resistance ? This resistance to your arbitrary system of taxa- tion might have been foreseen. It was obvious from the nature of things, and of mankind ; and, above all, from the Whiggish spirit flourishing in that country. 25 The spirit which now resists your taxation in America is the same which formerly opposed loans, benevolences, and ship-money in England ; the same spirit which called all England " on its legs," and by the Bill of Rights vindicated the English Constitu-, 3otion ; the same spirit which established the great fundamental, essential maxim of your liberties, that no 9 Benjamin Franklin. 16 LORD CHATHAM. subject of England shall be taxed but by his own con* sent? This glorious spirit of Whiggism animates three millions in America, who prefer poverty with liberty to gilded chains and sordid affluence ; and who will $ die in defense of their rights as men, as freemen. What shall oppose this spirit, aided by the congenial flame glowing in the breast of every Whig in England, to the amount, I hope, of double the American num- bers ? Ireland they have to a man. In that country, 10 joined as it is with the cause of the colonies, and placed at their head, the distinction I contend for is and must be observed. This country superintends and controls their trade and navigation ; but they tax themselves. And this distinction between external and 15 3 Two main ideas underlie this speech, each skilfully selected for its persuasive appeal to the audience addressed and developed with masterly skill. The first, that all the existing troubles with America have resulted from misrepresentation by the Ministry, frees the nation at large from shame, disposes them to listen 2 o to Lord Chatham's plea that a bad business brought about by misrepresentation cannot be bettered by pursuing the old policy. When this first idea and its corollary have been stated, Lord Chatham, to support his statement of the plan to be pursued, brings in the second idea, that from what his hearers prize as 25 perhaps their greatest inheritance from their fathers, the principle that a man shall not, without his consent, be taxed, the Americans, inheriting this idea ^rcm the aame forefathers, took their inspira- tion for resistance. Logic and fairness, then, two powerful appeals to the British mind, demanded that a trouble which arose 30 because the English had by misrepresentation been made to mis- understand the Americans when standing firm for a principle equally dear to the English, should be overcome by prompt con- cessions from England. }u ON REMOVING TROOPS FROM BOSTON. I? internal control is sacred and insurmountable ; it is involved in the abstract nature of things. Property is private, individual, absolute. Trade is an extended and complicated consideration : it reaches as far as 5 ships can sail or winds can blow : it is a great and various machine. To regulate the numberless move- ments of its several parts, and combine them into effect for the good of the whole, requires the super- intending wisdom and energy of the supreme power 10 in the empire. But this supreme power has no effect toward internal taxation ; for it does not exist in that relation ; there is no such thing, no such idea in this Constitution, as a supreme power operating upon property. Let this distinction then remain forever 15 ascertained ; taxation is theirs, commercial regulation is ours. As an American, I would recognize to Eng- land her supreme right of regulating commerce and navigation ; as an Englishman by birth and principle, I recognize to the Americans their supreme, unaliena- 2oble right in their property: a right which they are justified in the defense of to the last extremity. To maintain this principle is the common cause of the Whigs on the other side of the Atlantic and on this. " 'Tis liberty to liberty engaged," that they will defend 25 themselves, their families, and their country. In this great cause they are immovably allied : it is the alliance of God and nature immutable, eternal fixed as the firmament of heaven. To such united force, what force shall be opposed ? 30 What, my Lords? A few regiments in America, and seventeen or eighteen thousand men at home ! The idea is too ridiculous to take up a moment of your 1 8 LORD CHATHAM. Lordships' time. Nor can such a national and prin- cipled union be resisted by the tricks of office, or ministerial manoeuvre. Laying of papers on your table, or counting numbers on a division, will not avert or postpone the hour of danger. It must arrive, 5 my Lords, unless these fatal acts are done away ; it must arrive in all its horrors, and then these boastful ministers, spite of all their confidence and all their manoeuvres, shall be forced to hide their heads. They shall be forced to a disgraceful abandonment of their 10 present measures and principles, which they avow, but cannot defend ; measures which they presume to attempt, but cannot hope to effectuate. They cannot, my Lords, they cannot stir a step ; they have not a move left ; they are checkmated 7 I5 But it is not repealing this act of Parliament, it is not repealing a piece of parchment, that can restore America to our bosom. You must repeal her fears and her resentments, and you may then hope for her love and gratitude. But now, insulted with an armed 2 o force posted at Boston, irritated with a hostile array before her eyes, her concessions, if you could force them, would be suspicious and insecure ; they will be " irato animo " [with angry spirit] ; they will not be the sound, honorable passions of freemen ; they will 25 be the dictates of fear and extortions of force. But it is more than evident that you cannot force them, united as they are, to your unworthy terms of submis- sion. It is impossible. And when I hear General Gage censured for inactivity, I must retort with indig- 30 nation on those whose intemperate measures and improvident counsels have betrayed him into his ON' REMOVING TROOPS FROM BOSTON. 19 present situation. His situation reminds me, my Lords, of the answer of a French general in the civil wars of France M. Conde opposed to M. Turenne. He was asked how it happened that he did not take 5 his adversary prisoner, as he was often very near him. " J'ai peur," replied Concle, very honestly, " j'ai peur qu'il ne me prenne ; " Pm afraid he'll take me. When your Lordships look at the papers transmitted us from America when you consider their decency, 10 firmness, and wisdom, you cannot but respect their cause, and wish to make it your own. For myself, I must declare and avow, that in all my reading and observation and it has been my favorite study I have read Thucydides, and have studied and ad- 15 mired the master-states of the world that for solidity of reasoning, force of sagacity, and wisdom of con- elusion, under such a complication of difficult circum- stances, no nation or body of men can stand in preference to the general Congress at Philadelphia. 20 1 trust it is obvious to your Lordships that all attempts to impose servitude upon such men, to establish despotism over such a mighty continental nation, must be vain, must be fatal. We shall be forced ultimately to retract ; let us retract while we 25 can, not when we must. I say we must necessarily undo these violent oppressive acts. 4 They must be repealed. You will repeal them. I pledge myself for it, that you will, in the end, repeal them. I stake my reputation on it. I will consent to be taken for 30 an idiot if they are not finally repealed. Avoid, then, 4 The Boston Port Bill and the act taking away the charter of Massachusetts. 20 LORD CHATHAM. this humiliating, disgraceful necessity. With a dig- nity becoming your exalted situation, make the first advances to concord, to peace, and happiness ; for that is your true dignity, to act with prudence and justice. That you should first concede is obvious, 5 from sound and rational policy. Concession comes with better grace and more salutary effect from superior power. It reconciles superiority of power with the feelings of men, and establishes solid con- fidence on the foundations of affection and gratitude. 10 So thought a wise poet and a wise man in political sagacity the friend of Mecaenas, and the eulogist of Augustus. To him, the adopted son and successor of the first Caesar to him, the master of the world, he wisely urged this conduct of prudence and dignity : 15 " Tuque prior , tit parce ; projice tela manu." Every motive, therefore, of justice and of policy, of dignity and of prudence, urges you to allay the fer- ment in America by a removal of your troops from Boston, by a repeal of your acts of Parliament, and 2$ by demonstration of amicable dispositions toward your colonies. On the other hand, every danger and every hazard impend to deter you from perseverance in your present ruinous measures. Foreign war hanging over your heads by a slight and brittle 25 thread ; France and Spain watching your conduct, and waiting for the maturity of your errors, with a vigilant eye to America and the temper of your colonies, more than to their own concerns, be they what they may. 30 To conclude, my Lords, if the ministers thus perse- vere in misadvising and misleading the King, I will ON REMOVING TROOPS FROM BOSTON. 21 not say that they can alienate the affections of his subjects from his crown, but I will affirm that they will make the crown not worth his wearing. I will not say that the King is betrayed, but I will pronounce 5 that the kingdom is undone? 5 In this brief, skilfully worded paragraph, Lord Chatham did much, suggesting even more than he said directly. Saying that he will not say certain things, he brings to the King's ear what are evidently popular charges against him, and hints at great possible 10 dangers for the King. Both of the statements should make the King apprehensive, the first, that he may lose the affection of his people ; the second, that they may come to regard him as a mere tool of his ministers. Lord Chatham, with fine irony, apparently shrinks from two bold statements only to make two others less 15 specific, but more inclusive, and for King and people more terri- fying. Warning the people of the great dangers of the time, he yet hints approvingly the steadiness of their loyalty to the King, and throwing the blame for existing troubles on the Ministry, turns tfie people toward the King. Threatening the King with great 20 possible dangers, he makes him feel his need of the support of the people, and turns him away from the Ministry, who alone are responsible for existing evils. 5Lorb Born 1705. Died 1793. SPEECH IN THE CASE OF THE CHAMBERLAIN OF LON. DON AGAINST ALLAN EVANS. Delivered in the House of Lords, February 4, 1767. [" The city of London was in want of a new mansion house for the Lord Mayor, and resolved to build one on a scale of be- coming magnificence. But, as the expense would be great, some ingenious churchmen devised a plan for extorting a large part of the money out of the Dissenters, who had for a number of years been growing in business and property, under the protection of the Toleration Act. The mode was this. A by-law of the city was passed, imposing a fine of ^600 on any person who should be elected as sheriff and decline to serve. Some wealthy individual was then taken from the dissenting body, and by a concert among the initiated was chosen to the office of sheriff. Of course he was not expected to serve, for the Test and Corporation Acts rendered him incapable. He was, therefore, compelled to decline ; and was then fined ;6oo, under a by-law framed for the very purpose of extorting this money ! Numerous appointments were thus made, and ;i 5,000 were actually paid in ; until it became a matter of mere sport to " roast a Dissenter," and bring another 600 into the treasury toward the expenses of the mansion house. ' ' At length Allan Evans, a man of spirit, who had been selected as a victim, resolved to try the question. He refused to pay the fine, and was sued in the Sheriff's Court. Here he pleaded his rights under the Toleration Act, but lost his cause. He appealed to the Court of Hustings, where the decision was affirmed. He then appealed to the Court of Common Pleas, where judgment went in his favor ; the decisions of the courts below being unani- mously reversed. The city now brought a writ of error through 99 THE CASE OF EVANS. 23 their Chamberlain, and carried the case before the House of Lords. Here the subject was taken up by Lord Mansfield, who in common with all the judges but one of the Court of the King's Bench, was of opinion that Evans was protected by the Toleration Act, and ex- empted from the obligation to act as sheriff. These views he maintained in the following speech, which had great celebrity at the time, and is spoken of by Lord Campbell as * one of the finest specimens of forensic eloquence to be found in our books.' The judgment of the Court of the King's Bench was affirmed by the House of Lords." Goodrich. 1 ] MY LORDS : As I made the motion for taking the opinion of the learned judges, and proposed the ques- tion your Lordships have been pleased to put to them, it may be expected that I should make some farther I motion, in consequence of the opinions they have delivered.* In moving for the opinion of the judges, I had two views. The first was, that the House might have the benefit of their assistance in forming a right judgment >in this cause now before us, upon this writ of error. The next was, that the question being fully discussed, the grounds of our judgment, together with their 1 The notes marked " Goodrich " are reprinted by permission of Messrs. Harper & Brothers from Goodrich's " Select British Elo- ; quence," 1852. 8 In this speech a reader should note its remarkable compactness, brevity, and directness, and the careful exclusion, until the main ar- gument is concluded, of any appeal to the feelings. Something of this compactness comes from the fact that Lord Mansfield spoke > rather as a judge summing up a case, with the evidence of which his hearers were familiar, than as a lawyer who must show the value and significance of the evidence which he uses or combats. As the origin of the case, and its condition at the time of his speech, were Hnown to all, he could make his introduction very brief. 1$ 24 LORD MANSFIELD. exceptions, limitations, and restrictions, might be clearly and certainly known, as a rule to be followed hereafter in all future cases of the like nature ; and this determined me as to the manner of wording the question, " How far the defendant might, in the pres- ent case, be allowed to plead- his disability in bar of the action brought against him ?" The question thus worded shows the point upon which your Lordships thought this case turned ; and the answer necessarily fixes a criterion, under what circumstances, and by what persons, such a disability may be pleaded as an exemption from the penalty inflicted by this by-law, upon those who decline taking upon them the office of sheriff. In every view in which I have been able to consider this matter, I think this action cannot be supported. If they rely on the Corporation Act ; by the literal and express provision of that act, no person can be elected who hath not within a year taken the sacrament in the Church of England. The defendant hath not taken the sacrament within a year ; he is not, therefore, elected. Here they fail. If they ground it on the general design of the was his work to select from the mass of charges and counter- charges, with the evidence pro and con attaching to them, the essential ideas, and to show their significance clearly to his hearers. By a brilliant analysis made before his speech, he reduced the case to a simple outline, and then in his speech devoted himself to making this outline clear and convincing. Relying on evidence he knew to be in the minds of his hearers, excluding every idea that did not make clearer his main or subordinate propositions, wasting not a word, he moved with neat transitions steadily to his goal, THE CASE OF EVANS. 25 Legislature in passing the Corporation Act ; the de- sign was to exclude Dissenters from office, and disable them from serving. For, in those times, when a spirit of intolerance prevailed, and severe measures were pursued, the Dissenters were reputed and treated as persons ill-affected and dangerous to the government. The defendant, therefore, a Dissenter, and in the eye of this law a person dangerous and ill-affected, is ex- cluded from office, and disabled from serving. Here they fail. If they ground the action on their own by-law ; that by-law was professedly made to procure fit and able persons to serve the office, and the defendant is not fit and able, being expressly disabled by statute law. Here, too, they fail. If they ground it on his disability's being owing to a neglect of taking the sacrament at church, when he ought to have done it, the Toleration Act having freed the Dissenters from all obligation to take the sacrament at church, the defendant is guilty of no neglect no criminal neglect. Here, therefore, they fail. These points, my Lords, will appear clear and plain. The Corporation Act, pleaded by the defendant as rendering him ineligible to this office, and incapable of taking it upon him, was most certainly intended by the Legislature to prohibit the persons therein de- scribed being elected to any corporation offices, and to disable them from taking such offices upon them. > The act had two parts, first, it appointed a commis- sion for turning out all that were at that time in office, who would not comply with what was required as 26 LORD MANSFIELD. the condition of their continuance therein, and even gave a power to tu-rn them out, though they should comply ; and then it farther enacted, that, from the termination of that commission, no person hereafter, who had not taken the sacrament according to the 5 rites of the Church of England within one year pre- ceding the time of such election, should be placed, chosen, or elected into any office of, or belonging to, the government of any corporation ; and this was done, as it was expressly declared in the preamble to 10 the act, in order to perpetuate the succession in cor- porations in the hands of persons well-affected to government in church and state. It was not their design (as hath been said) " to bring such persons into corporations by inducing 15 them to take the sacrament in the Church of Eng- land " ; the Legislature did not mean to tempt per- sons who were ill-affected to the government occa- sionally to conform. It was not, I say, their design to bring them in. They could not trust them, lest 20 they should use the power of their offices to distress and annoy the state. And the reason is alleged in the act itself. It was because there were " evil spirits " among them ; and they were afraid of evil spirits, and determined to keep them out. They 25 therefore put it out of the power of electors to choose such persons, and out of their power to serve ; and accordingly prescribed a mark or character, laid down a description whereby they should be known and dis- tinguished by their conduct previous to such an elec- 30 tion. Instead of appointing a condition of their serv- ing the office, resulting from their future conduct, or THE CASE OF EVANS. 27 some consequent action to be performed by them, they declared such persons incapable of being chosen as had not taken the sacrament in the Church within a year before such election ; and, without this mark 5 of their affection to the Church, they could not be in office, and there could be no election. But as the law then stood, no man could have pleaded this dis- ability, resulting from the Corporation Act, in bar of such an action as is now brought against the defend- 10 ant, because this disability was owing to what was then, in the eye of the law, a crime ; every man being required by the canon law (received and confirmed by the statute law) to take the sacrament in the Church at least once a year. The law would not then permit 15 a man to say that he had not taken the sacrament in the Church of England ; and he could not be allowed to plead it in bar of any action brought against him. But the case is quite altered since the Act of Toleration. It is now no crime for a man, who is 20 within the description of that act, to say he is a Dis- senter ; nor is it any crime for him not to take the sacrament according to the rites of the Church of England ; nay, the crime is, if he does it contrary to the dictates of his conscience. 25 If it is a crime not to take the sacrament at church, it must be a crime by some law ; which must be either common or statute law, the canon law. enforcing it being dependent wholly upon the statute law. Now the statute law is repealed as to persons capable of 30 pleading [under the Toleration Act] that they are so and so qualified ; and therefore the canon law is re* pealed with regard to those persons, 28 LORD MANSFIELD. If it is a crime by common law, it must be so either by usage or principle. But there is no usage or cus- tom, independent of positive law, which makes non- conformity a crime. The eternal principles of natural religion are part of the common law. The essential 5 principles of revealed religion are part of the common law ; so that any person reviling, subverting, or ridi- culing them, may be prosecuted at common law. But it cannot be shown, from the principles of natural or revealed religion, that, independent of positive law, 10 temporal punishments ought to be inflicted for mere opinions with respect to particular modes of worship. Persecution for a sincere though erroneous con- science is not to be deduced from reason or the fit- ness of things. It can only stand upon positive law. 15 It has been said that "the Toleration Act only amounts to an exemption of the Protestant Dis- senters from the penalties of certain laws therein par- ticularly mentioned, and to nothing more ; that if it had been intended to bear, and to have any operation 2 o upon the Corporation Act, the Corporation Act ought to have been mentioned therein ; and there ought to have been some enacting clause, exempting Dissenters from prosecution in consequence of this act, and enabling them to plead their not having received the 25 sacrament according to the rites of the Church of England in bar of such action." But this is much too limited and 'narrow a conception of the Toleration Act, which amounts consequentially to a great deal more than this ; and it hath consequentially an infer- 30 ence and operation upon the Corporation Act in particular. The Toleration Act renders that which THE CASE OF EVANS. 29 was illegal before, now legal. The Dissenters' way of worship is permitted and allowed by this act. It is not only exempted from punishment, but rendered innocent and lawful. It is established ; it is put 5 under the protection, and is not merely under the connivance of the law. In case those who are ap- pointed by law to register dissenting places of wor- ship refuse on any pretense to do it, we must, upon application, send a mandamus to compel them. 10 Now there cannot be a plainer position than that the law protects nothing in that very respect in which it is (in the eye of the law) at the same time a crime. Dissenters, within the description of the Toleration Act, are restored to a legal consideration and ca- 15 pacity ; and a hundred consequences will from thence follow, which are not mentioned in the act. For in- stance, previous to the Toleration Act> it was unlaw- ful to devise any legacy for the support of dissenting congregations, or for the benefit of dissenting minis- 2oters ; for the law knew no such assemblies, and no such persons ; and such a devise was absolutely void, being left to what the law called superstitious pur- poses. But will it be said in any court in England that such a devise is not a good and valid one now ? 25 And yet there is nothing said of this in the Toleration Act. By this act the Dissenters are freed, not only from the pains and penalties of the laws therein par- ticularly specified, but from all ecclesiastical censures and from all penalty and punishment whatsoever, on 30 account of their nonconformity, which is allowed and protected by this act, and is, therefore, in the eye of ;he law, no longer a crime. Now, if the 3 LORD MANSFIELD. may say he is a Dissenter ; if the law doth not stop his mouth ; if he may declare that he hath not taken the sacrament according to the rites of the Church of England, without being considered as criminal ; if, I say, his mouth is not stopped by the law, he may then 5 plead his not having taken the sacrament according to the rites of the Church of England, in bar of this action. It is Such a disability as doth not leave him liable to any action, or to any penalty whatsoever. It is indeed said to be " a maxim in law, that a 10 man shall not be allowed to disable himself." But, when this maxirn is applied to the present case, it is laid down in too large a sense. When it is extended to comprehend a legal disability, it is taken in too great a latitude. What ! Shall not a man be allowed 15 to plead that he is not fit and able ? These words are inserted in the by-law, as the ground of making it ; and in the plaintiff's declaration, as the ground of his action against the defendant. It is alleged that the defendant was fit and able, and that he refused to 20 serve, not having a reasonable excuse. It is certain, and it is hereby in effect admitted, that if he is not fit and able, and that if he hath a reasonable excuse, he may plead it in bar of this action. Surely he might plead that he was not worth fifteen thousand pounds, 25 provided that was really the case, as a circumstance that would render him not fit and able. And if the law allows him to say that he hath not taken the sac- rament according to the rites of the Church of Eng- land, being within the description of the Toleration 30 Act, he may plead that likewise to show that he is not fit $nd able. It is a reasonable, it is 3 lawful excuse, T&E CA$ OF My Lords, the meaning of this maxim, " that a man shall not disable himself/' is solely this : that a man shall not disable himself by his own wilful crime ; and such a disability the law will not allow him to 5 plead. If a man contracts to sell an estate to any person upon certain terms at such a time, and in the meantime he sells it to another, he shall not be allowed to say, " Sir, I cannot fulfill my contract ; it is out of my power ; I have sold my estate to an- 10 other." Such a plea would be no bar to an action, because the act of his selling it to another is the very breach of contract. So, likewise, a man who hath promised marriage to one lady, and afterward marries another, cannot plead in bar of a prosecution from 15 the first lady that he is already married, because his marrying the second lady is the very breach of prom- ise to the first. A man shall not be allowed to plead that he was drunk in bar of a criminal prosecution, though perhaps he was at the time as incapable of 20 the exercise of reason as if he had been insane, be- cause his drunkenness was itself a crime. He shall not be allowed to excuse one crime by another. The Roman soldier, who cut off his thumbs, was not suf- fered to plead his disability for the service to procure 25 his dismission with impunity, because his incapacity was designedly brought on him by his own wilful fault. 8 And I am glad to observe so good an agree- * This paragraph shows well the great value in argument of con- crete illustration. By means of his illustrations Lord Mansfield not 30 only adds life and interest to his speech, but also makes perfectly clear a distinction that, when first stated, seems a little subtle, and might, without the illustration, remain for most hearers a little vague. 3 2 LORD MANSFIELD. ment among the judges upon this point, who have stated it with great precision and clearness. When it was said, therefore, that " a man cannot plead his crime in excuse for not doing what he is by law required to do," it only amounts to this, that he 5 cannot plead in excuse what, when pleaded, is no excuse ; but there is not in this the shadow of an ob- jection to his pleading what is an excuse pleading a legal disqualification. If he is nominated to be a justice of the peace, he may say, " I cannot be a jus- 10 tice of the peace, for I have not a hundred pounds a year." In like manner, a Dissenter may plead, " I have not qualified, and I cannot qualify, and am not obliged to qualify ; and you have no right to fine me for not serving." 15 It hath been said that "the King hath a right to the service of all his subjects." And this assertion is very true, provided it be properly qualified. But surely, against the operation of this general right in particular cases, a man may plead a natural or civil 20 disability. May not a man plead that he was upon the high seas ? May not idiocy or lunacy be pleaded, which are natural disabilities ; or a judgment of a court of law, and much more a judgment of Parlia- ment, which are civil disabilities ? 25 It hath been said to be a maxim " that no man can plead his being a lunatic to avoid a deed executed, or excuse an act done, at that time, because, it is said, " if he was a lunatic, he could not remember any action he did during the period of his insanity " ; and this was 30 doctrine formerly laid down by some judges. But I am glad to find that of late it hath been generally THE CASE OF EVANS. 33 exploded. For the reason assigned for it is, in my opinion, wholly insufficient to support it ; because, though he could not remember what passed during his insanity, yet he might justly say, if he ever 5 executed such a deed, or did such an action, it must have been during his confinement or lunacy, for he did not do it either before or since that time. As to the case in which a man's plea of insanity was actually set aside, it was nothing more than this : it 10 was when they pleaded ore tenus [or verbally] ; the man pleaded that he was at the time out of his senses. It was replied, How do you know that you were out of your senses ? No man that is so, knows himself to be so. And accordingly his plea was, upon this quibble, 15 set aside ; not because it was not a valid one, if he was out of his senses, but because they concluded he was not out of his senses. If he had alleged that he was at that time confined, being apprehended to be out of his senses, no advantage could have been taken of his 20 manner of expressing himself, and his plea must have been allowed to be good. As to Larwood's case, he was not allowed the benefit of the Toleration Act, because he did not plead it. If he had insisted on his right to the benefit of it in 25 his plea, the judgment must have been different. His inserting it in his replication was not allowed, not because it was not an allegation that would have excused him if it had been originally taken notice of in his plea, but because its being not mentioned till after- 3^ ward was a departure from his plea. In the case of the Mayor of Guilford, the Toleration Act was pleaded. The plea was allowed good, the 34 LORD MANSFIELD. disability being esteemed a lawful one ; and the judg- ment was right. And here the defendant hath likewise insisted on his right to the benefit of the Toleration Act. In his plea he saith he is bona fide a Dissenter, within the 5 description of the Toleration Act ; that he hath taken the oaths, and subscribed the declaration required by that act, to show that he is not a popish recusant ; that he hath never received the sacrament according to the rites of the Church of England, and that he 10 cannot in conscience do it ; and that for more than fifty years past he hath not been present at church at the celebration of the established worship, but hath constantly received the sacrament and attended divine service among the Protestant Dissenters. These facts 15 are not denied by the plaintiff, though they might easily have been traversed ; and it was incumbent upon them to have done it, if they had not known they should certainly fail in it. There can be no doubt, therefore, that the defendant is a Dissenter 20 an honest, conscientious Dissenter ; and no conscien- tious Dissenter can take the sacrament at church. The defendant saith he cannot do it, and he is not obliged to do it. And as this is the case, as the law allows him to say this, as it hath not stopped his mouth, 25 the plea which he makes is a lawful plea, his disability being through no crime or fault of his own. I say, he is disabled by act of Parliament, without the con- currence or intervention of any fault or crime of his own ; and, therefore, he may plead this disability in 30 bar of the present action. The case of " atheists and infidels " is out of THE CASE OF EVANS. 35 the present question ; they come not within the descrip- tion of the Toleration Act. And this is the sole point to be inquired into in all cases of the like nature with that of the defendant, who here pleads the Toleration 5 Act. Is the man bona fide a Dissenter within the description of that act ? If not, he cannot plead his disability in consequence of his not having taken the sacrament in the Church of England. If he is, he may lawfully and with effect plead it in bar of such loan action; and the question on which this distinction is grounded must be tried by a jury. It hath been said that, " this being a matter between God and a man's own conscience, it cannot come under the cognizance of a jury." But certainly 15 it may ; and, though God alone is the absolute judge of a man's religious profession and of his conscience, yet there are some marks even of sincerity, among which there is none more certain than consistency. Surely a man's sincerity may be judged of by overt 20 acts. It is a just and excellent maxim, which will hold good in this, as in all other cases, " by their fruits ye shall know them." Do they, I do not say go to meeting now and then, but do they frequent the meeting-house ? Do they join generally and statedly 25 in divine worship with dissenting congregations ? Whether they do or not, may be ascertained by their neighbors, and by those who frequent the same places of worship. In case a man hath occasionally conformed for the sake of places of trust and 30 profit ; in that case, I imagine, a jury would not hesitate in their verdict. If a man then alleges he is a Dissenter, and claims the protection and the 36 LORD MANSFIELD. advantages of the Toleration Act, a jury may justly find that he is not a Dissenter within the descrip- tion of the Toleration Act, so far as to render his dis- ability a lawful one. If he takes the sacrament for his interest, the jury may fairly conclude that this 5 scruple of conscience is a false pretense when set up to avoid a burden. The defendant in the present case pleads that he is a Dissenter within the description of the Toleration Act ; that he hath not taken the sacrament in the 10 Church of England within one year preceding the time of his supposed election, nor ever in his whole life ; and that he cannot in conscience do it. Conscience is not controllable by human laws, nor amenable to human tribunals. Persecution, or attempts 15 to force conscience, will never produce conviction, and are only calculated to make hypocrites or martyrs. V. My Lords, there never was a single instance, from the Saxon times down to our own, in which a man was ever punished for erroneous opinions con- 20 cerning rites or modes of worship, but upon some positive law. The common law of England, which is only common reason or usage, knows of no pros- ecution for mere opinions. For atheism, blasphemy, and reviling the Christian religion, there have been 25 instances of persons prosecuted and punished upon the common law. But bare non-conformity is no sin by the common law ; and all positive laws inflicting any pains or penalties for non-conformity to the established rites and modes, are repealed by the Act 30 of Toleration, and Dissenters are thereby exempted from all ecclesiastical censures. THE CASE OF EVANS. 37 What bloodshed and confusion have been oc- casioned, from the reign of Henry the Fourth, when the first penal statutes were enacted, down to the revolution in this kingdom, by laws made to force 5 conscience ! 4 There is nothing, certainly, more unreasonable, more inconsistent with the rights of human nature, more contrary to the spirit and pre- cepts of the Christian religion, more iniquitous and unjust, more impolitic, than persecution. It is against 10 natural religion, revealed religion, and sound policy. 4 Throughout the preceding part of the speech Lord Mansfield has appealed directly only to the common-sense and the intellect of his hearers. Indirectly, of course, his air of impartiality and sincerity has been a persuasive appeal. Here for the first time he \ 15 directly appeals, and subtly, to the feelings of his hearers. He shames them by suggesting that if they approve of the course of the plaintiff, they will out-Jesuit their loathed foes, the Jesuits. To say this directly might arouse anger, and so divert attention to Lord Mansfield from the idea he wishes to enforce. Therefore, 20 he states his analogy so deftly that the hearer chiefly applies the words, and most of the responsibility for the shame of the com- parison falls on him. In the next paragraph Lord Mansfield first phrases a suspicion that for some time his words have fostered in his hearers' minds. 25 If early in his speech he had denounced the persecutors of Evans as conspirators, he would have missed the impartial air of his speech. Instead, as twisting and turning the case, he shows a hearer that from every point of view the plaintiff is wrong anJ unjust, he develops more and more a feeling that some evil plan 30 must be back of injustice so evident. This unstated suspicion he strengthens when he makes the reader see the Jesuitical nature of the attempt ; and finally, when the hearer himself is about to break out with his suspicion, phrases it for him, supporting his accusation by references to the evidence produced in the case, and by an analogy. 35 Then, with a swiff summary of the whole plea, he closes. 38 LORD MANSFIELD. Sad experience and a large mind taught that great man, the President De Thou, this doctrine. Let any man read the many admirable things which, though a Papist, he hath dared to advance upon the subject, in the dedication of his History to Harry the Fourth c of France, which I never read without rapture, and he will be fully convinced, not only how cruel, but how im- politic it is to prosecute for religious opinions. I am sorry that of late his countrymen have begun to open their eyes, see their error, and adopt his sentiments. 10 I should not have broken my heart (I hope I may say it without breach of Christian charity) if France had continued to cherish the Jesuits and to persecute the Huguenots. There was no occasion to revoke the Edict of 15 Nantes. The Jesuits needed only to have advised a plan similar to what is contended for in the present case, Make a law to render them incapable of office, make another to punish them for not serving. If they accept, punish them (for it is admitted on all hands 20 that the defendant, in the cause before your Lordships, is prosecutable for taking the office upon him) if they accept, punish them ; if they refuse, punish them. If they say yes, punish them ; if they say no, punish them. My Lords, this is a most exquisite dilemma, 25 from which there is no escaping. It is a trap a mar cannot get out of ; it is as bad persecution as that of Procrustes. If they are too short, stretch them ; if they are too long, lop them. Small would have been their consolation to have been gravely told, " The 30 Edict of Nantes is kept inviolable. You have the full benefit of that act of toleration ; you may take the THE CASE OF EVANS. 39 sacrament in your own way with impunity ; you are not compelled to go to mass." Were this case but told in the city of London, as of a proceeding in France, how they would exclaim against the Jesuitical 5 distinction ! And yet, in truth, it comes from them- selves. The Jesuits never thought of it. When they meant to persecute by their act of toleration, the Edict of Nantes was repealed. This by-law, by which the Dissenters are to be 10 reduced to this wretched dilemma, is a by-law of the city, a local corporation, contrary to an act of Parlia- ment, which is the law of the land ; a modern by-law of a very modern date, made long since the Corpora- tion Act, long since the Toleration Act, in the face of 15 them, for they knew these laws were in being. It was made in some year in the reign of the late King I forget which ; but it was made about the time of building the mansion house ! Now, if it could be sup- posed the city have a power of making such a by-law, 20 it would entirely subvert the Toleration Act, the design of which was to exempt the Dissenters from all penalties ; for by such a by-law they have it in their power to make every Dissenter pay a fine of six hun- dred pounds, or any sum they please, for it amounts 25 to that. The professed design of making this by-law was to get fit and able persons to serve the office ; and the plaintiff sets forth in his declaration, that if the Dissenters are excluded, they shall want fit and able 3 persons to serve the office. But, were I to deliver my own suspicion, it would be, that they did not so much wish for their services as their fines. Dissenters have 4 LORD MANSFIELD. been appointed to this office, one who was blind, another who was bed-ridden ; not, I suppose, on account of their being fit and able to serve the office. No : they were disabled both by nature and by law. We had a case lately in the courts below, of a person 5 chosen mayor of a corporation while he was beyond seas with his Majesty's troops in America, and they knew him to be so. Did they want him to serve the office? No; it was impossible. But they had a mind to continue the former mayor a year longer, and to 10 have a pretense for setting aside him who was now chosen, on all future occasions, as having been elected before. In the case before your Lordships, the defendant was by law incapable at the time of his pretended 15 election ; and it is my firm persuasion that he was chosen because he was incapable. If he had been capable, he had not been chosen, for they did not want him to serve the office. They chose him because, without a breach of the law, and a usurpation on the 20 Crown, he could not serve the office. They chose him, that he might fall under the penalty of their by- law, made to serve a particular purpose ; in opposi- tion to which, and to avoid the fine thereby imposed, he hath pleaded a legal disability, grounded on two 25 acts of Parliament. As I am of opinion that his plea is good, I conclude with moving your Lordships, " That the judgment be affirmed/ 5 Juntas, LETTER TO THE PRINTER OF THE "PUBLIC ADVERTISER." January 21, 1769. ["At the close of 1767 Lord Chatham's cabinet had fallen to pieces, and the Duke of Grafton became minister. The Duke immediately endeavored to strengthen himself on every side. He yielded to the wishes of the King by making Lord North Chancellor of the Exchequer, and by raising Mr. Jenkinson, the organ of Lord Bute, to higher office and influence. Thus he gave a decided ascendency to the Tories. On the other hand, he en- deavored to conciliate Lord Rockingham and the Duke of Bedford by very liberal proposals. But these gentlemen differing as to the lead of the House, the Bedford interest prevailed ; Lord Wey- mouth, a member of that family, was made Secretary of the Home Department ; while Lord Rockingham was sent back to the ranks of Opposition under a sense of wrong and insult. Six months, down almost to the middle of 1768, were spent in these negoti- ations and arrangements. " These things wrought powerfully on the mind of Junius, who was a Grenville or Rockingham Whig. But in addition to this, he had strong private animosities. He not only saw with alarm and abhorrence the triumph of Tory principles, but he cherished the keenest personal resentment toward the King and most of his ministers. Those, especially, who had deserted their former Whig associates, he regarded as traitors to the cause of liberty. He therefore now determined to give full scope to his feelings, and to take up a system of attack far more galling to his oppo- nents than had ever yet been adopted. One thing was favorable to such a design. Parliament was to expire within a few months ; and every blow now struck would give double alarm and distress to the government, while it served also to inflame the minds of the 41 4 2 JUNIUS. people, and rouse them to a more determined resistance in the approaching elections. Accordingly, at the close of the Christ- mas holidays, when the business of the session really commences, he addressed his first letter to the printer of the Public Advertiser, under date of January 21, 1769." In this letter " Junius, for the first time, broke through the barriers thrown around the monarch by the maxim, ' the King can do no wrong/ He assailed him like any other man, though in more courtly and guarded language. He attacked the ministry in more direct terms/' saying, " * It is not a casual concurrence of calamitous circumstances it is the pernicious hand of government alone, that can make a whole peo- ple desperate/ The attention of the public was strongly arrested. The poet Gray, in his correspondence, speaks of the absorbing power of this letter over his mind, when he took it up casually for the first time at a country inn, where he had stopped for refreshment on a journey. He was unable to lay it down, or even to think of the food before him, until he had read it over and over again with the most painful interest. The same pro- found sensation was awakened in the higher political circles throughout the kingdom. " Goodrich. ] This letter, though not the first that appeared over the signa- ture " Junius," is the first of the collection known as the " Junius Letters.'* These came out at intervals from 1769 to 1772, when " Junius " ceased to write. More than fifty persons have been suggested for the author of the "Junius Letters." Popularly, Sir Philip Francis (born 1740, died 1818,) has been supposed to be the author of them. His authorship, however, has not been conclusively proved. SIR : The submission of a free people to the execu- tive authority of government is no more than a com- pliance with laws which they themselves have enacted.' 1 Junius, writing for a public already much disturbed by the condition of the government, could do away with any elaborate introduction. To catch the reader's attention must be his aim, and this he accomplished by beginning with a sentence that at a time of political uneasiness and distrust must arrest a reader's FIRST LETTER. 43 While the national honor is firmly maintained abroad, and while justice is impartially administered at home, the obedience of the subject will be voluntary, cheer- ful, and I might say, almost unlimited. A generous 5 nation is grateful even for the preservation of its rights, and willingly extends the respect due to the office of a good prince into an affection for his per- son. Loyalty, in the heart and understanding of an Englishman, is a rational attachment to the guardian ro of the laws. Prejudices and passion have sometimes carried it to a criminal length ; and, whatever for- eigners may imagine, we know that Englishmen have erred as much in a mistaken zeal for particular persons and families, as they ever did in defense of 15 what they thought most dear and interesting to them- selves. eye. Sure that the public, which had eagerly been watching state affairs, would understand any references to men or events of the years just preceding 1761, Junius did not, throughout his speech, 20 trouble to bring forward evidence of the truth of his references and allusions, but treats them as matters the details of which are of common report and belief. His method, throughout the letter, as the many notes of explanation an editor to-day finds necessary suggest, was to leave a good deal unsaid, letting the reader fill out 25 his allusions, apply his words, with the aid of the details in his own mind. Nowhere is this better shown than in his reference to the Wilkes case and Lord Mansfield. Knowing that the details of this case were in every reader's mind, he avoided a statement of it that might involve him in controversy, merely 30 hinting an application of it, which a reader promptly makes. This method makes a reader partly responsible for the daring conclu- sion to which Junius wished to lead him, makes him trust its truth more because he has not been forced to it, but has come to it himself. 44 JUNIUS. It naturally fills us with resentment to see such a temper insulted and abused. 2 In reading the history of a free people, whose rights have been invaded, we are interested in their cause. Our own feelings tell us how long they ought to have submitted, and at 5 what moment it would have been treachery to them- selves not to have resisted. How much warmer will be our resentment, if experience should bring the fatal example home to ourselves ! The situation of this country is alarming enough to I0 rouse the attention of every man who pretends to a concern for the public welfare. Appearances justify suspicion ; and when the safety of a nation is at stake, suspicion is a just ground of inquiry. Let us enter into it with candor and decency. Respect is due to 15 the station of ministers ; and if a resolution must at 2 " We have here the starting point of the exordium, as it lay originally in the mind of Junius, viz., that the English nation was * insulted and abused ' by the King and ministers. But this was too strong a statement to be brought out abruptly. Junius there- 20 fore went back, and prepared the way by showing in successive sentences, (r) Why a free people obey the laws ' because they have themselves enacted them.' (2) That this obedience is ordi- narily cheerful, and almost unlimited. (3) That such obedience to the guardian of the laws naturally leads to a strong affection for 25 his person. (4) That this affection (as shown in their history) had often been excessive among the English, who were, in fact, peculiarly liable to a ' mistaken zeal for particular persons and families/ Hence they were equally liable (this is not said, but implied) to have their loyalty imposed upon ; and therefore the 30 feeling then so prevalent was well founded, that the King, in his rash counsels and reckless choice of ministers, must have been taking advantage of the generous confidence of his people, and playing on the easiness of their temper. If so, they were inde* ON EVOLUTION. 75 and their number rapidly diminishes in the lower deposits of that epoch. In the older tertiaries, the places of existing animals and plants are taken by other forms, as numerous and diversified as those 5 which live now in the same localities, but more or less different from them; in the mesozoic rocks,these are replaced by others yet more divergent from modern types; and in the palaeozoic formations the contrast is still more, marked. Thus the circumstantial evidence 10 absolutely negatives the conception of the eternity of the present condition of things. We can say with certainty that the present condition of things has ex- isted for a comparatively short period ; and that, so far as animal and vegetable nature are concerned, it 15 has been preceded by a different condition. We can pursue this evidence until we reach the lowest of the stratified rocks, in which we lose the indications of life altogether. The hypothesis of the eternity of the present state of Nature may therefore be put out of 20 court. We now come to what I will term Milton's hypoth- esis the hypothesis that the present condition of things has endured for a comparatively short time ; and, at the commencement of that time, came into 25 existence within the course of six days. I doubt not that it may have excited some surprise in your minds that I should have spoken of this as Milton's hypoth- esis, rather than that I should have chosen the terms which are more customary, such as " the doctrine of 30 creation," or " the Biblical doctrine," or " the doc- trine of Moses," all of which denominations, as applied to the hypothesis to which I have just referred, are 76 T. H. HUXLEY. certainly much more familiar to you than the title of the Miltonic hypothesis. 7 But I have had what I can- not but think are very weighty reasons for taking the course which I have pursued. In the first place, I have discarded the title of the " doctrine of creation," 5 because my present business is not with the question why the objects which constitute Nature came into existence, but when they came into existence, and in what order. This is as strictly a historica.1 question as the question when the Angles and the Jutes in- 10 vaded England, and whether they preceded or fol- lowed the Romans. But the question about creation is a philosophical problem, and one which cannot be solved,* or even approached, by the historical method. What we want to learn is, whether the facts, so far as *S they are known, afford evidence that things arose in the way described by Milton, or whether they do not ; and, when that question is settled, it will be time enough to inquire into the causes of their origination. In the second place, I have not spoken of this doc- 20 7 Here Professor Huxley was obliged to meet squarely the dif- ficulty he avoided on p. 69. Now that the second hypothesis was to be considered, any clear-sighted hearer must see that the testimony to be treated was of two kinds testimonial, from the Bible, and circumstantial, from Geology. Therefore, it seemed that 2 5 the speaker must consider the ' ' biblical " evidence here. This Pro- fessor Huxley did frankly, though very deftly, for while explain- ing why he did not speak of the second hypothesis as the ' ' biblical, *' he made the supporters of the second hypothesis responsible for so much doubt as to the authenticity and the interpretation of 30 the testimonial evidence that it must be ruled out. Morever, he gained, persuasively, by making these men, by his fine irony, a little ridiculous. If he made the audience smile at them, he had already done something to win his hearers to his view. ON EVOLUTION. 77 trine as the Biblical doctrine. It is quite true that per. sons as diverse in their general views as Milton the Protestant and the celebrated Jesuit Father Suarez, each put upon the first chapter of Genesis the interpre- 5 tation embodied in Milton's poem. It is quite true that this interpretation is that which has been instilled into every one of us in our childhood ; but I do not for one moment venture to say that it can properly be called the Biblical doctrine. It is not my business, 10 and does not lie within my competency, to say what the Hebrew text does, and what it does not signify ; moreover, were I to affirm that this is the Biblical doctrine, I should be met by the authority of many eminent scholars, to say nothing of men of science, 15 who, at various times, have absolutely denied that any such doctrine is to be found in Genesis. If we are to listen to many expositors of no mean authority, we must believe that what seems so clearly defined in Genesis as if very great pains had been taken that 20 there should be no possibility of mistake is not the meaning of the text at all. The account is -divided into periods that we may make just as long or as short as convenience requires. We are also to understand that it is consistent with the original text to believe 25 that the most complex plants and animals may have been evolved by natural processes, lasting for mil- lions of years, out of structureless rudiments. A per- son who is not a Hebrew scholar can only stand aside and admire the marvellous flexibility of a language 30 which admits of such diverse interpretations. But assuredly, in the face of such contradictions of authority upon matters respecting which he is incom- 7$ T. H. HUXLEY. petent to form any judgment, he will abstain, as I do, from giving any opinion. In the third place, I have carefully abstained from speaking of this as the Mosaic doctrine, because we are now assured upon the authority of the highest 5 critics, and even of dignitaries of the Church, that there is no evidence that Moses wrote the Book of Genesis, or knew anything about it. You will under- stand that I give no judgment it would be an impert- inence upon my part to volunteer even a suggestion 10 upon such a subject. But, that being the state of opinion among the scholars and the clergy, it is well for the unlearned in Hebrew lore, and for the laity, to avoid entangling themselves in such a vexed question. Happily, Milton leaves us no excuse for doubting what 15 he means, and I shall therefore be safe in speaking of the opinion in question as the Miltonic hypothesis. Now we have to test that hypothesis. For my part, I have no prejudice one way or the other. If there is evidence in favor of this view, I am burdened by no2c theoretical difficulties in the way of accepting it ; but there must be evidence. Scientific men get an awk- ward habit no, I won't call it that, for it is a valuable habit of believing nothing unless there is evidence for it ; and they have a way of looking upon belief 2 5 which is not based upon evidence, not only as illogical but as immoral. We will, if you please, test this view by the circumstantial evidence alone ; for, from what I have said, you will understand that I do not propose to discuss the question of what testimonial evidence 3 is to be adduced in favor of it. If those whose busi- ness it is to judge are not at one as to the authenticity ON- EVOLUTION. 79 of the only evidence of that kind which is offered, nor as to the facts to which it bears witness, the discus- sion of such evidence is superfluous. But I may be permitted to regret this necessity of 5 rejecting the testimonial evidence the less, because the examination of the circumstantial evidence leads to the conclusion, not only that it is incompetent to justify the hypothesis, but that, so far as it goes, it is contrary to the hypothesis. I0 The considerations upon which I base this conclu- sion are of the simplest possible character. The Mil- tonic hypothesis contains assertions of a very definite character, relating to the succession of living forms. It is stated that plants, for example, made their 15 appearance upon the third day, and not before. And you will understand that what the poet means by plants are such plants as now live, the ancestors, in the ordinary way of propagation of like by like, of the trees and shrubs which flourish in the present world. 20 It must needs be so ; for, if they were different, either the existing plants have been the result of a separate origination since that described by Milton, of which we have no record, nor any ground for supposition that such an occurrence has taken place ; or else they 25 have arisen by a process of evolution from the original stocks. 8 In the second place, it is clear that there was no animal life before the fifth day, and that, on the fifth day, aquatic animals and birds appeared. And it is 30 further clear that terrestrial living things, other than birds, made their appearance upon the sixth day, and 8 The use of the dilemma here and on p. 83 is very effective. So r. H. HUXLEY. not before. Hence, it follows that, if, in the large mass of circumstantial evidence as to what really has happened in the past history of the globe we find indi- cations of the existence of terrestrial animals, other than birds, at a certain period, it is perfectly certain 5 that all that has taken place since that time must be referred to the sixth day. In the great Carboniferous formation, whence America derives so vast a proportion of her actual and potential wealth, in the beds of coal which have 10 been formed from the vegetation of that period, we find abundant evidence of the existence of terrestrial animals. They have been described, not only by European but by your own naturalists. There are to be found numerous insects allied to our cockroaches. 15 There are to be found spiders and scorpions of large size, the latter so similar to existing scorpions that it requires the practised eye of the naturalist to distin- guish them. Inasmuch as these animals can be proved to have been alive in the Carboniferous epoch, 2 o it is perfectly clear that, if the Miltonic account is to be accepted, the huge mass of rocks extending from the middle of the Palaeozoic formations to the upper- most members of the series, must belong to the day which is termed by Milton the sixth. But, further, 25 it is expressly stated that aquatic animals took their origin upon the fifth day, and not before ; hence, all formations in which remains of aquatic animals can be proved to exist, and which therefore testify that such animals lived at the time when these formations 30 were in course of deposition, must have been depos- ited during or since the period which Milton speaks 1 Wl V tKOl 1 Y j/ J ON EVOLUTION. 8l EVOLUTION. of as the fifth day. But there is absolutely no fossil- iferous formation in which the remains of aquatic animals are absent. The oldest fossils in the Silurian rocks are exuviae of marine animals ; and if the view 5 which is entertained by Principal Dawson and Dr. Carpenter respecting the nature of the Eozoon be well founded, aquatic animals existed at a period as far antecedent to the deposition of the coal as the coal is from us ; inasmuch as the Eozoon is met with in 10 those Laurentian strata which lie at the bottom of the series of stratified rocks. 9 Hence it follows, plainly enough, that the whole series of stratified rocks, if they are to be brought into harmony with Milton, must be referred to the fifth and sixth days, 15 and that we cannot hope to find the slightest trace of the products of the earlier days in the geological record. When we consider these simple facts, we see how absolutely futile are the attempts that have been made to draw a parallel between the story told by so 20 much of the crust of the earth as is known to us and the story which Milton tells. The whole series of fossiliferous stratified rocks must be referred to the last two days ; and neither the Carboniferous, nor any other, formation can afford evidence of the work 25 of the third day. Not only is there this objection to any attempt to ' A few years before this address, Canadian geologists gave the name Eozoon to a certain aggregate of minerals viewed by them as a fossilized organic body belonging to the Foraminifera. 30 There can, however, no longer be any doubt of the inorganic nature of the Eozoon. By the geologists who named the Eozotfn, it was believed to be the oldest recognized form, to represent the dawn of life.* Century Diet, 82 T. H. HUXLEY. establish a harmony between the Miltonic account and the facts recorded in the fossiliferous rocks, but there is a further difficulty. According to the Mil- tonic account, the order in which animals should have made their appearance in the stratified rocks would 5 be this : Fishes, including the great whales, and birds ; after them, all varieties of terrestrial animals except birds. Nothing could be further from the facts as we find them ; we know of not the slightest evidence of the existence of birds before the Jurassic, 10 or perhaps the Triassic, formation ; while terrestrial animals, as we have just seen, occur in the Carbonif- erous rocks. If there were any harmony between the Miltonic account and the circumstantial evidence, we ought to 15 have abundant evidence of the existence of birds in the Carboniferous, the Devonian, and the Silurian rocks. I need harcjly say that this is not the case, and that not a trace of birds makes its appearance until the far later period which I have mentioned. 2 o And again, if it be true that all varieties of fishes and the great whales, and the like, made their appear- ance on the fifth day, we ought to find the remains of these animals in the older rocks in those which were deposited before the Carboniferous epoch. Fishes we 25 do find, in considerable number and variety ; but the great whales are absent, and the fishes are not such as now live. Not one solitary species of fish now in existence is to be found in the Devonian or Silurian formations. Hence we are introduced afresh to the 30 dilemma which I have already placed before you : either the animals which came into existence on the ON EVOLUTION. 83 fifth day were not such as those which are found at present, are not the direct and immediate ancestors of those which now exist ; in which case either fresh creations of which nothing is said, or a process of 5 evolution must have occurred ; or else the whole story must be given up, as not only devoid of any circum- stantial evidence, but contrary to such evidence as exists. I placed before you in a few words, some little time 10 ago, a statementxof the sum and substance of Milton's hypothesis. Let me now try to state, as briefly, the effect of the circumstantial evidence bearing upon the past history of the earth which is furnished, without the possibility of mistake, with no chance of error as , 15 to its chief features, by the stratified rocks. What we find is, that the great series of formations represents a period of time of which our human chronologies hardly afford us a unit of measure. I will not pretend to say how we ought to estimate this time, in millions 20 or in billions of years. For my purpose, the deter- mination of its absolute duration is wholly unessential. But that the time was enormous there can be no question. It results from the simplest methods of interpreta- 25 tion, that leaving out of view certain patches of metamorphosed rocks, and certain volcanic products, all that is now dry land has once been at the bottom of the waters. It is perfectly certain that, at a com- paratively recent period of the world's history the 30 Cretaceous epoch none of the great physical features which at present mark the surface of the globe existed. It is certain that the Rocky Mountains were 84 T. H. HUXLEY. not. It is certain that the Himalaya Mountains were not. It is certain that the Alps and the Pyrenees had no existence. The evidence is of the plainest possi- ble character, and is simply this : We find raised up on the flanks of these mountains, elevated by the 5 forces of upheaval which have given rise to them, masses of Cretaceous rock which formed the bottom of the sea before those mountains existed. It is there- fore clear that the elevatory forces which gave rise to the mountains operated subsequently to the Cre- 10 taceous epoch ; and that the mountains themselves are largely made up of the materials deposited in the sea which once occupied their place. As we go back in time, we meet with constant alternations of sea and land, of estuary and open ocean ; and, in cor- 15 respondence with these alternations, we observe the changes in the fauna and flora to which I have referred. But the inspection of these changes gives us no right to believe that there has been any discontinuity in 20 natural processes. There is no trace of general cataclysms, of universal deluges, or sudden de- structions of a whole fauna or flora. The appear- ances which were formerly interpreted in that way have all been shown to be delusive, as our knowledge 25 has increased and as the blanks which formerly ap- peared to exist between the different formations have been filled up. That there is no absolute break be- tween formation and formation, that there has been no sudden disappearance of all the forms of life and 30 replacement of them by others, but that changes have gone on slowly and gradually, that one type has died ON- EVOLUTION. 85 out and another has taken its place, and that thus, by insensible degrees, one fauna has been replaced by another, are conclusions strengthened by constantly increasing evidence. So that within the whole of the 5 immense period indicated by the fossiliferous stratified rocks, there is assuredly not the slightest proof of any break in the uniformity of Nature's operations, no indication that events have followed other than a clear and orderly sequence. 10 That, I say, is the natural and obvious teaching of the circumstantial evidence contained in the stratified rocks. I leave you to consider how far, by any ingenuity of interpretation, by any stretching of the meaning of language, it can be brought into harmony J 5 with the Miltonic hypothesis. ARGUMENT IN GENERAL. OLorfc Ersfcfne, Born 1750. Died 1823. SPEECH IN BEHALF OF LORD GEORGE GORDON WHEN INDICTED FOR HIGH TREASON. Delivered before the Court of the King's Bench, February 5, 1781. [' ' Lord George Gordon, a member of the House of Commons, was a young Scottish nobleman of weak intellect and enthusiastic feelings. He had been chosen president of the Protestant Asso- ciation, whose object was to procure the repeal of Sir George Saville's bill in favor of the Catholics. In this capacity, he directed the association to meet him in St. George's Fields, and proceed thence to the Parliament House with a petition for the repeal of the bill. Accordingly, about forty thousand persons of the middling classes assembled on Friday, the 2d of June, 1780, and after forming a procession, moved forward till they blocked up all the avenues to the House of Commons. They had no arms of any kind, and were most of them orderly in their conduct, though individuals among them insulted some members of both Houses who were passing into the building, requiring them to put blue cockades on their hats, and to cry ' No Popery ! ' "Lord George presented the petition, but the House refused to consider it at that time, by a vote of 192 to 6. The multitude now became disorderly, and after the House adjourned, bodies of men proceeded to demolish the Catholic chapels at the residences of the foreign ministers. From this moment the whole affair changed its character. Desperate men, many of them thieves 86 DEFENSE OF GORDON. 87 and robbers, took the lead. Not only were Catholic chapels set on fire, but the London prisons were broken open and destroyed ; thirty-six fires were blazing at one time during the night. The town was for some days completely in the power of the multitude. Lord Mansfield's house was destroyed ; the breweries and dis- tilleries were broken open, and the mob became infuriated with liquor ; and for a period there was reason to apprehend that the whole of the metropolis might be made one general scene of con- flagration. The military were at last called in from the country, and, after a severe conflict, the mob was put down ; but not until nearly five hundred persons had been killed or wounded, exclusive of those who perished from the effects of intoxi- cation. "The government had been taken by surprise. No adequate provision was made to guard against violence, and as the riots went on, all authority for a time seemed to be paralyzed or extinct. When order was at last restored, the magistrates, as is common with those who have neglected their duty, endeavored to throw the blame on others they resolved to make Lord George Gordon their scapegoat. He was accordingly arraigned for high treason ; and such was the excitement of the public mind, such the eagerness to have someone punished, that he was in immi- nent danger of being made the victim of public resentment. It was happy for him that, in addition to Mr. (afterward Lord) Kenyon, his senior counsel, a man of sound mind, but wholly destitute of eloquence, he had chosen Mr. Erskine, as a Scotch- man, to aid in his defense. It was the means probably of saving his life. " The Attorney-General opened the case in behalf of the Crown, contending (i) That the prisoner, in assembling the multitude round the two Houses of Parliament, was guilty of high treason, if he did so with a view to overawe and intimidate the Legislature, and enforce his purposes by numbers and violence (a doctrine fully con- firmed by the court) ; and (2) That the overt acts proved might be fairly construed into such a design, and were the only evidence by which a traitorous intention, in such a case, could be shown. When the evidence for the Crown was received, Mr. Kenyon addressed the jury in behalf of Lord George Gordon, but ip a 88 LORD ERSKINE. manner so inefficient that, when he sat down, ' the friends of Lord George were in an agony of apprehension.' According to the usual practice Mr. Erskine should now have followed, before the examination of his client's witnesses. But he adroitly changed the order, claiming as a privilege of the prisoner (for which he adduced a precedent) to have the evidence in his favor received at once. His object was, by meeting the evidence of the Crown with that of Lord George's witnesses as early as possible, to open a way for being heard with more favor by the jury, and of com- menting upon the evidence on both sides as compared together. The Rev. Mr. Middleton, a member of the Protestant Asso- ciation, swore that he had watched the prisoner's conduct, and that he appeared to be always actuated by the greatest loyalty to the King and attachment to the Constitution that his speeches at the meetings of the association, at Coachmakers' Hall, never contained an expression tending directly or indirectly to a repeal of the bill by force that he desired the people not even to carry sticks in the procession, and begged that riotous persons might be delivered to the constables. Mr. Evans, an eminent surgeon, declared that he saw Lord George Gordon in the center of one of the divisions in St. George's Fields, and that it appeared from his conduct and expressions that he wished and endeavored to pre- vent all disorder. This was confirmed by others, and it was proved by decisive evidence that the bulk of the people round the Parliament House and in the lobby were not members of the Association, but idlers, vagabonds, and pickpockets, who had thrust themselves in ; so that the persons who insulted the mem- bers were of a totally different class from those who formed the original procession. The Earl of Lonsdale swore that he took the prisoner home from the House in his carriage ; that great multitudes surrounded Lord George, inquiring the fate of the petition : that he answered it was uncertain, and earnestly en- treated them to retire to their homes and be quiet. 4< The evidence was not closed until after midnight, when Mr. Erskine addressed the jury in the following speech. The jury, after being charged by Lord Mansfield, withdrew at three o'clock in the morning, and speedily returned with the verdict FOT DEFENSE OF GORDON. 89 GENTLEMEN OF THE JURY : 1 Mr. Kenyon having informed the court that we propose to call no other witnesses, it is now my duty to address myself to you as counsel for the noble prisoner at the bar, the whole 5 evidence being closed. I use the word closed, because it certainly is not finished, since I have been obliged to leave the seat in which I sat, to disentangle myself from the volumes of men's names, which lay there under my feet, whose testimony, had it been necessary 10 for the defense, would have confirmed all the facts that are already in evidence before you. 2 1 The construction of this speech is apparently very simple, but it is the simplicity of genius, and its apparently natural develop- ment helped to produce in the minds of the jury the feeling 15 Erskine sought, that the simple, the natural, the common-sense belief must be that Lord Gordon was an innocent, persecuted man. Analysis of the case had shown Lord Erskine before he spoke that the whole case turned on the definition of treason to be used in it ; and about a definition of it he made his whole case 20 center. Roughly the plan of this simplification of a case open to all kinds of entanglement, which the prosecution had evidently been willing to make obscure, is this : I. To make the jury feel the importance, the indispensability of a clear definition of treason ; 2. To state clearly a definition that even his opponents 25 must accept ; 3. To point out under what part of this the prisoner might be accused, and rigorously excluding all other parts, to make the jury see that to an application of this to the prisoner's conduct the case must be confined ; 4. Using this accepted test, to see what bearing on it the evidence of the prosecution had ; 5. 30 To apply this test to the evidence for the defendant ; 6. To recap- itulate and to close. The speech flows apparently spontaneously, yet the most careful analysis prepared for it ; every extraneous idea was excluded ; every sentence had its work to do. If it be the high- est art that conceals art, this speech is certainly a masterpiece. 35 2 " Mr. Erskine shows great dexterity in turning a slight circum- 9 LORD ERSKINE. Gentlemen, I feel myself entitled to expect, both from you and from the court, the greatest indulgence and attention. I am, indeed, a greater object of your compassion than even my noble friend whom I am defending. He rests secure in conscious innocence, 5 and in the well-placed assurance that it can suffer no stain in your hands. 3 Not so with ME. I stand before you a troubled, I am afraid a guilty man, in having presumed to accept of the awful task which I am now called upon to perform a task which my learned 10 stance at the opening of his speech into a means of impressing the jury from the first with a sense of his client's innocence. He had sat thus far in the front row, with large files of papers at his feet, but he now stepped back to obtain greater freedom of movement ; and this he represents as done to escape from ' the volumes of 15 men's names ' who stood ready to confirm the evidence in favor of Lord Gordon ! So the next paragraph, though in form a plea for indulgence to himself as a young speaker, is in fact the strongest possible assumption of the prisoner's innocence, since the guilt referred to consisted in his venturing to endanger, by his 2 o inexperience, the cause of one who stood secure himself ' in conscious innocence.' There is hardly anything for which Mr. Erskine deserves more to be studied, than his thus making every circumstance conspire to produce the desired impression. All is so easy and natural that men never think of it as the result of 25 design or premeditation, and here lies his consummate skill as an advocate. " Goodrich. 8 The persuasive appeals in this speech are subtly handled. Lord Erskine does not once make a mere appeal to the emotions. When, here, he pleads for sympathy as inexperienced, or, on o O P- I 3 gracefully compliments Lord Mansfield, his words subserve a second purpose. The plea goes far to establish an assumption of the innocence of Lord George Gordon ; the compliment makes a proof of his innocence. As is pointed out later, the omission at the end of the speech of any emotional appeal is far stronger than any appeal could have been, DEFENSE OF GORDON. 9 1 friend who spoke before me, though he has justly risen, by extraordinary capacity and experience, to the highest rank in his profession, has spoken of with that distrust and diffidence which becomes every 5 Christian in a cause of blood. If Mr. Kenyon has such feelings, think what mine must be. Alas ! gen- tlemen, who am I ? A young man of little experience, unused to the bar of criminal courts, and sinking under the dreadful consciousness of my defects. *o I have, however, this consolation, that no ignorance nor inattention on my part can possibly prevent you from seeing, under the direction of the Judges, that the Crown has established no case of treason. Gentlemen, I did expect that the Attorney-Gen- o eral, in opening a great and solemn state prosecu- tion, would have at least indulged the advocates for the prisoner with his notions on the law, as applied to the case before you, in less general terms. 4 It is very common, indeed, in little civil actions, to make such 20 obscure introductions by way of trap. But in crim- inal cases it is unusual and unbecoming ; because the right of the Crown to reply, even where no witnesses are called by the prisoner, gives it thereby the advan- tage of replying without having given scope for 25 observations on the principles of the opening, with which the reply must be consistent. 4 " The reader cannot fail to remark how admirably one thought grows out of another in the transition, all of them important and all preparing the mind to be deeply interested in the discussion of 30 the subject to which it leads, the nature of high treason. The same characteristic runs throughout the whole speech." Good- rich* 92 LORD ERSKINE. One observation he has, however, made on the subject, in the truth of which I heartily concur, viz., that the crime of which the noble person at your bar stands accused, is the very highest and most atrocious that a member of civil life can possibly commit ; be- 5 cause it is not, like all other crimes, merely an injury to society from the breach of some of its reciprocal relations, but is an attempt utterly to dissolve and destroy society altogether. In nothing, therefore, is the wisdom and justice of 10 our laws so strongly and eminently manifested as in the rigid, accurate, cautious, explicit, unequivocal definition of what shall constitute this high offense. For, high treason consisting in the breach and dis- solution of that allegiance which binds society to-.i5 gether, if it were left ambiguous, uncertain, or unde- fined, all the other laws established for the personal security of the subject would be utterly useless ; since this offense, which, from its nature, is so capable of being created and judged of by the rules of political 20 expediency on the spur of the occasion, would be a rod at will to bruise the most virtuous members of the community, whenever virtue might become troublesome or obnoxious to a bad government. Injuries to the persons and properties of our neigh- 25 bors, considered as individuals, which are the subjects of all other criminal prosecutions, are not only capable of greater precision, but the powers of the state can be but rarely interested in straining them beyond their legal interpretation. But if treason, 30 where the government is directly offended, were left to the judgment of its. ministers, without any bounda- DEFENSE OF GORDON. 93 ries nay, without the most broad, distinct, and in- violable boundaries marked out by the law there could be no public freedom. The condition of an Englishman would be no better than a slave's at the 5 foot of a Sultan ; since there is little difference whether a man dies by the stroke of a saber, without the forms of a trial, or by the most pompous cere- monies of justice, if the crime could be made at pleasure by the state to fit the fact that was to be 10 tried. Would to God, gentlemen' of the jury, that this were an observation of theory alone, and that the page of our history was not blotted with so many melancholy, disgraceful proofs of its truth ! But these proofs, melancholy and disgraceful as they are, 15 have become glorious monuments of the wisdom of our fathers, and ought to be a theme of rejoicing and emulation to us. For, from the mischiefs constantly arising to the state from every extension of the ancient law of treason, the ancient law of treason has been 20 always restored, and the Constitution at different periods washed clean; though, unhappily, with the blood of oppressed and innocent men. I. When I speak of the ancient law of treason, I mean the venerable statute of King Edward the Third, 25 on which the indictment you are now trying is framed a statute made, as its preamble sets forth, for the more precise definition of this crime, which has not, by the common law, been sufficiently explained ; and consisting of different and distinct members, the plain 3 unextended letter of which was thought to be a suffi- cient protection to the person and honor of the Sover- eign, anc} an adequate security to the laws committed 94 LORD ERSKINE. to his execution. I shall mention only two of ttie number, the others not being in the remotest degree applicable to the present accusation. 5 (1) To compass or imagine the death of the King : such imagination or purpose of the mind (visible only 5 to its great Author) being manifested by some open act ; an institution obviously directed, not only to the security of his natural person, but to the stability of the government, since the life of the Prince is so in- terwoven with the Constitution of the state, that an 10 attempt to destroy the one is justly held to be rebel- lious conspiracy against the other. (2) (Which is the crime charged in the indictment) To levy war against him in his realm : a term that one would think could require no explanation, nor admit J 5 of any ambiguous construction, among men who are willing to read laws according to the plain significa- tion of the language in which they are written ; but which has, nevertheless, been an abundant source of that constructive cavil which this sacred and valuable 20 act was made expressly to prevent. The real mean- ing of this branch of it, as it is bottomed in policy, reason, and justice ; as it is ordained in plain, unam- biguous words ; as it is confirmed by the precedents of justice, and illustrated by the writings of the great 25 6 "In this statement of the law of treason, perfectly fair and accurate as it is, there is one thing which marks the consummate skill of Mr. Erskine. He shapes it throughout with a distinct reference to the facts of the case, as they were afterward to come out in evidence. The points made most prominent are the points 30 he had occasion afterward to use. Thus the jury were prepared, without knowing it, to look at the evidence under aspects favorable \Q the prisoner." Qoodrich. DEFENSE OF GORDON. 95 lights of the law in different ages of our history, I shall, before I sit down, impress upon your minds as a safe, unerring standard by which to measure the evi- dence you have heard. At present I shall only say, 5 that far and wide as judicial decisions have strained the construction of levying war beyond the warrant of the statute, to the discontent of some of the greatest ornaments of the profession, they hurt not me. As a citizen I may disapprove of them, but as advocate for 10 the noble person at your bar, I need not impeach their authority. For none of them have said more than this, " that war may be levied against the King in his realm, not only by an insurrection to change or to destroy the fundamental Constitution of the govern- 15 ment itself by rebellious war ; but, by the same war, to endeavor to suppress the execution of the laws it has enacted, or to violate and overbear the protection they afford, not to individuals (which is a private wrong) but to any general class or description of the 20 community, by premeditated \ open acts of violence, hostil- ity, and force" Gentlemen, I repeat these words, and call solemnly on the judges to attend to what I say, and to contra- diet me if I mistake the law, " By premeditated, open acts 25 of violence, hostility, and force," nothing equivocal, noth- ing ambiguous, no intimidations or overawings, which signify nothing precise or certain (because what frightens one man or set of men may have no effect upon another), but that which compels and coerces 30 ipen violence and force. Gentlemen, this is not only the whole text ; but I submit it to the learned judges, under whose correc- 9 LORD ERSK1NE. tion I am happy to speak, an accurate explanation of the statute of treason, as far as it relates to the pres- ent subject, taken in its utmost extent of judicial con- struction ; and which you cannot but see, not only in its letter, but in its most strained signification, is confined 5 to acts which immediately, openly, and unambiguously strike at the very root and being of government, and not to any other offenses, however injurious to its peace. Such were the boundaries of high treason marked 10 out in the reign of Edward the Third ; and as often as the vices of bad princes, assisted by weak, submis- sive Parliaments, extended state offenses beyond the strict letter of that act, so often the virtue of better princes and wiser Parliaments brought them back X 5 again. A long list of new treasons, accumulated in the wretched reign of Richard the Second, from which (to use the language of the act that repealed them) "no man knew what to do or say for doubt of the pains of " death," were swept away in the first year of Henry the 20 Fourth, his successor; and many more, which had again sprung up in the following distracted, arbitrary reigns, putting tumults and riots on a footing with armed rebellion, were again leveled in the first year of Queen Mary, and the statute of Edward made once 2 5 more the standard of treasons. The acts, indeed, for securing his present Majesty's illustrious House from the machinations of those very Papists, who are now so highly in favor, have since that time been added to the list. But these not being applicable to the pres-3Q ent case, the ancient statute is still our only guide ; which is so plain and simple in its object, so explicit DEFENSE OF GORDON. 97 and correct in its terms, as to leave no room for in- trinsic error ; and the wisdom of its authors has shut the door against all extension of its plain letter ; de- claring, in the very body of the act itself, that nothing 5 out of that plain letter should be brought within the pale of treason by inference or construction, but that, if any such cases happened, they should be referred to the Parliament. This wise restriction has been the subject of much 10 just eulogium by all the most celebrated writers on the criminal law of England. Lord Coke says the Parliament that made it was on that account called Benedictum, or Blessed ; and the learned and virtuous Judge Hale, a bitter enemy and opposer of construc- J 5 tive treason, speaks of this sacred institution with that enthusiasm which it cannot but inspire in the breast of every lover of the just privileges of mankind. Gentlemen, in these mild days, when juries are so free and judges so independent, perhaps all these ob- 2oservations might have been spared as unnecessary. But they can do no harm ; and this history of treason, so honorable to England, cannot (even imperfectly as I have given it) be unpleasant to Englishmen. At all events, it cannot bethought an inapplicable introduc- 25 tion to saying that Lord George Gordon, who stands before you indicted for that crime, is not, cannot be guilty of it, unless he has levied war against the King in his realm, contrary to the plain letter, spirit, and intention of the act of the twenty-fifth of Edward the 30 Third to be extended by no new or occasional con- struction, to be strained by no fancied analogies, to be measured by no rules of political expediency, to be 98 LORD ERSKIXE. judged of by no theory, to be determined by the wis- dom of no individual, however wise, but to be ex- pounded by the simple, genuine letter of the law. Gentlemen, the only overt act charged in the indict- ment, is the assembling the multitude, which we all 5 of us remember went up with the petition of the As- sociated Protestants, on the second day of last June. In addressing myself to a humane and sensible Jury of Englishmen, sitting in judgment on the life of a fellow-citizen, more especially under the direction of 10 a court so filled as this is, I trust I need not remind you that the purposes of that multitude, as originally assembled on that day, and the purposes and acts of him who assembled them, are the sole object of in- vestigation. 6 All the dismal consequences which fol- 15 lowed, and which naturally link themselves with this subject in the firmest minds, must be altogether cut off and abstracted from your attention, further than the evidence warrants their admission. If the evi- dence had been co-extensive with these consequences ; 20 if it had been proved that the same multitude, under the direction of Lord George Gordon, had afterward attacked the Bank, broke open the prisons, and set London in a conflagration, I should not now be ad- dressing you. Do me the justice to believe that I am 25 neither so foolish as to imagine I could have defended him, nor so profligate to wish it if I could. But when it has appeared, not only by the evidence in the cause, but 'A reader should note the insistence throughout of Lord Erskine that the idea he wishes to bring out, and that idea only, 30 shall be considered, and the firmness with which the argument is kept from wandering to side issues. DEFENSE OF GORDON. 99 by the evidence of the thing itself by the issues of life, which may be called the evidence of Heaven that these dreadful events were either entirely unconnected with the assembling of that multitude to attend the 5 petition of the Protestants, or, at the very worst, the unforeseen, undesigned, unabetted, and deeply re- gretted consequences of it, I confess the seriousness and solemnity of this trial sink and dwindle away. Only abstract from your minds all that misfortune, 10 accident, and the wickedness of others have brought upon the scene, and the cause requires no advocate. When I say that it requires no advocate, I mean that it requires no argument to screen it from the guilt of treason. For though I am perfectly convinced of the 15 purity of my noble friend's intentions, yet I am not bound to defend his prudence, nor to set it up as a pattern for imitation : since you are net trying him for imprudence, for indiscreet zeal, or for want of foresight and precaution, but for a deliberate and malicious 20 predetermination to overpower the laws and govern- ment of his country, by hostile, rebellious force. The indictment, therefore, first charges that the multitude assembled on the 2d of June " were armed, and arrayed in a warlike manner " ; which, indeed 25 if it had omitted to charge, we should not have troubled you with any defense at all, because no judg- ment could have been given on so defective an indict- ment. For the statute never meant to put an unarmed assembly of citizens on a footing with armed rebellion ; 30 and the crime, whatever it is, must always appear on the record to warrant the judgment of the court. It is certainly true that it has been held to be matter loo LORD ERSKINE. of evidence, and dependent on circumstances, what numbers, or species of equipment and order, though not the regular equipment and order of soldiers, shall constitute an army, so as to maintain the averment in the indictment of a warlike array ; and, likewise, what 5 kind of violence, though not pointed at the King's person, or the existence of the government, shall be construed to be war against the King. But as it has never yet been maintained in argument, in any court of the kingdom, or even speculated upon in theory, 10 that a multitude, without either weapons offensive or defensive of any sort or kind, and yet not supplying the want of them by such acts of violence as multi- tudes sufficiently great can achieve without them, was a hostile army within the statute ; as it has never been *5 asserted, by the wildest adventurer in constructive treason, that a multitude, armed with nothing, threat- ening nothing, and doing nothing, was an army levy- ing war ; I am entitled to say that the evidence does not support the first charge in the indictment; but 20 that, on the contrary, it is manifestly false false in the knowledge of the Crown, which prosecutes it false in the knowledge of every man in London, who was not bed-ridden on Friday, the 2d of June, and who saw the peaceable demeanor of the Associated Protestants. 25 But you will hear, no doubt, from the Solicitor- General (for they have saved all their intelligence for the reply) that fury supplies arms ; furor arma min- istrat ; and the case of Damaree 7 will, I suppose, be 7 " In this case a mob assembled for the purpose of destroying 3 all the Protestant Dissenting meeting-houses, and actually pulled down two. 8 State Trials, 218." Goodrich. DEFENSE OF GORDON. 10 1 referred to ; where the people assembled had no ban. ners or arms, but only clubs and bludgeons ; yet the ringleader, who led them on to mischief, was adjudged to be guilty of high treason for levying war. This 5 judgment it is not my purpose to impeach, for I have no time for disgression to points that do not press upon me. In the case of Damaree, the mob, though not regularly armed, were provided with such weapons as best suited their mischievous designs. Their de- 10 signs were, besides, open and avowed, and all the mis- chief was done that could have been accomplished, if they had been in the completest armor. They burned Dissenting meeting-houses protected by law, and Damaree was taken at their head, in flagrante delicto J 5 [in the crime itself], with a torch in his hand, not only in the very act of destroying one of them, but leading on his followers, in person, to the avowed destruction of all the rest. There could, therefore, be no doubt of his purpose and intention, nor any great doubt that 20 the perpetration of such purpose was, from its gener- ality, high treason, if perpetrated by such a force as distinguishes a felonious riot from a treasonable levy- ing of war. 8 The principal doubt, therefore, in that case was, whether such an unarmed, riotous force was 2$ war, within the meaning of the statute ; and on that point very learned men have differed ; nor shall I at- tempt to decide between them, because in this one point they all agree. Gentlemen, I beseech you to at- 8 " To constitute a treasonable levying of war there must be an 30 insurrection ; there must be force accompanying that insurrection ; and it must be for an object of a general nature. Regina v. Frost, 9 Carrington and Payne, 129." Goodrich. 102 LORD ERSKINE. tend to me here. I say on this point they all agree, that it is the intention of assembling them which forms the guilt of treason. I will give you the words of high authority, the learned Foster, whose private opinions will, no doubt, be pressed upon you as a 5 doctrine and law, and which, if taken together, as all opinions ought to be, and not extracted in smuggled sentences to serve a shallow trick, I am contented to consider as authority. That great judge, immediately after supporting the 10 case of Damaree, as> a levying war within the statute, against the opinion of Hale in a similar case, namely, the destruction of bawdy-houses, which happened in his time, says, " The true criterion, therefore, seems to be Quo animo did the parties assemble ? with 15 what intention did they meet ? " On that issue, then, in which I am supported by the whole body of the criminal law of England, concerning which there are no practical precedents of the courts that clash, nor even abstract opinions of the closet that differ, I come 20 forth with boldness to meet the Crown. For, even supposing that peaceable multitude though not hos- tilely arrayed though without one species of weapon among them though assembled without plot or dis- guise by a public advertisement, exhorting, nay, com- 25 manding peace, and inviting the magistrates to be present to restore it, if broken though composed of thousands who are now standing around you, unim- peached and unreproved, yet who are all principals in treason, if such assembly was treason ; supposing, I 3 say, this multitude to be, nevertheless, an army within the statute, still the great question would remain be- DEFENSE OF GORDON. 103 hind, on which the guilt or innocence of the accused must singly depend, and which it is your exclusive province to determine, namely, whether they were assembled by my noble client for the traitorous pur- 5 pose charged in the indictment ? For war must not only be levied, but it must be levied against the King in his realm ; /. e., either directly against his person to alter the Constitution of the government, of which he is the head, or to suppress the laws committed to his 10 execution by rebellious force. You must find that Lord George Gordon assembled these men with that trai- torous intention. You must find not merely a riotous, illegal petitioning not a tumultuous, indecent im- portunity to influence Parliament, not the compulsion 15 of motive, from seeing so great a body of people united in sentiment and clamorous supplication but the absolute, unequivocal compulsion of force, from the hostile acts of numbers united in rebellious con- spiracy and arms. 20 This is the issue you are to try, for crimes of all denominations consist wholly in the purpose of the human will producing the act. " Actus non facit reum nisi me ns sit rea" The act does not constitute guilt, unless the mind 'be guilty. This is the great text 25 from which the whole moral of penal justice is de- duced. It stands at the top of the criminal page, throughout all the volumes of our humane and sensi- ble laws, and Lord Chief Justice Coke, whose chapter on this crime is the most authoritative and masterly 30 of all his valuable works, ends almost every sentence with an emphatical repetition of it. The indictment must charge an open act, because 104 LORD ERSKINE. the purpose of the mind, which is the object of trial, can only be known by actions. Or, again to use the words of Foster, who has ably and accurately ex- pressed it, " the traitorous purpose is the treason ; the overt act, the means made use of to effectuate the 5 intentions of the heart." But why should I borrow the language of Foster, or of any other man, when the language of the indictment itself is lying before our eyes ? What does it say ? Does it directly charge the overt act as in itself constituting the 10 crime ? No ; it charges that the prisoner " maliciously and traitorously did compass, imagine, and intend to raise and levy war and rebellion against the King "; this is the malice prepense of treason ; and that to fulfill and bring to effect such traitorous compassings and in- 15 tentions, he did, on the day mentioned in the indict- ment, actually assemble them, and levy war and rebellion against the King. Thus the law, which is made to correct and punish the wickedness of the heart, and not the unconscious deeds of the body, 20 goes up to the fountain of human agency, and arraigns the lurking mischief of the soul, dragging it to light by the evidence of open acts. The hostile mind is the crime ; and, therefore, unless the matters that are in evidence before you do, beyond all doubt or pos- 25 sibility of error, convince you that the prisoner is a determined traitor in his heart, he is not guilty. It is the same principle which creates all the various degrees of homicide, from that which is excusable to the malignant guilt of murder. The fact is the same 30 in all. The death of the man is the imputed crime ; but the intention makes all the difference ; and he who DEFENSE OF GORDON. io killed him is pronounced a murderer a simple felon or only an unfortunate man, as the circumstances, by which his mind has been deciphered to the jury, show it to have been cankered by deliberate wicked- 5 ness or stirred up by sudden passions. Here an immense multitude was, beyond all doubt, assembled on the 2d of June. But whether HE that assembled them be guilty of high treason, of a high misdemeanor, or only of a breach of the act of 10 King Charles the Second 9 against tumultuous peti- tioning (if such an act still exists), depends wholly upon the evidence of his purpose in assembling them, to be gathered by you, and by you alone, from the whole tenor of his conduct ; and to be gathered, not 15 by inference, or probability, or reasonable presump- tion, but, in the words of the act, provably; that is, in the full, unerring force of demonstration. You are called, upon your oaths, to say, not whether Lord George Gordon assembled the multitudes in the place 20 charged in the indictment, for that is not denied ; but 9 "By 13 Car. II., st. I, c. 5, passed in consequence of the tumults on the opening of the memorable Parliament of 1640, it is provided that no petition to the King or either House of Parlia- ment, for any alteration in Church or State, shall be signed by 25 above twenty persons, unless the matter thereof be approved by three justices of the peace, or the major part of the grand jury in the county ; and in London by the Lord Mayor, Aldermen, and Common Council : nor shall any petition be presented by more than ten persons at a time. But under these regulations, it is 30 declared by the Bill of Rights, I W. and M., st. 2, c. 2, that the subject hath a right to petition. Lord Mansfield told the jury that the court were clearly of opinion that this statute, 13 Car. II., was not in any degree affected by the Bill of Rights, but was still in force. Doug., 571." Goodrich. 106 LORD ERSKINE. whether it appears, by the facts produced in evidence for the Crown when confronted with the proofs which we have laid before you, that he assembled them in hostile array and with a hostile mind, to take the laws into his own hands by main force, and to dissolve the 5 Constitution of the government, unless his petition should be listened to by Parliament. That is your exclusive province to determine. The court can only tell you what acts the law, in its gen- eral theory, holds to be high treason, on the general 10 assumption that such acts proceed from traitorous pur- poses. But they must leave it to your decision, and to yours alone, whether the acts proved appear, in the present instance, under all the circumstances, to have arisen from the causes which form the essence of this 15 high crime. Gentlemen, you have now heard the law of treason ; first, in the abstract, and secondly, as it applies to the general features of the case ; and you have heard it with as much sincerity as if I had addressed you upon 20 my oath from the bench where the judges sit. I de- clare to you solemnly, in the presence of that great Being at whose bar we must all hereafter appear, that I have used no one art of an advocate, but have acted the plain unaffected part of a Christian man, instruct- 25 ing the consciences of his fellow-citizens to do justice. If I have deceived you on this subject, I am myself deceived ; and if I am misled through ignorance, my ignorance is incurable, for I have spared no pains to understand it. I am not stiff in opinions; but 30 before I change any of those that I have given you to-day, I must see some direct monument of justice DEFENSE OF GORDON. 107 that contradicts them. For the law of England pays no respect to theories, however ingenious, or to au- thors, however wise ; and therefore, unless you hear me refuted by a series of direct precedents, and not 5 by vague doctrine, if you wish to sleep in peace, follow me. II. And now the most important part of our task begins, namely, the application of the evidence to the doctrines I have laid down. For trial is nothing more 10 than the reference of facts to a certain rule of action, and a long recapitulation of them only serves to dis- tract and perplex the memory, without enlightening the judgment, unless the great standard principle by which they are to be measured is fixed and rooted in 15 the mind. When that is done (which I am confident has been done by you), everything worthy of obser- vation falls naturally into its place, and the result is safe and certain. Gentlemen, it is already in proof before you (indeed 20 it is now a matter of history), that an act of Parlia- ment passed in the session of 1778, for the repeal of certain restrictions, which the policy of our ancestors had imposed upon the Roman Catholic religion, to prevent its extension, and to render its limited tolera- 25 tion harmless ; restrictions, imposed not because our ancestors took upon them to pronounce that faith to be offensive to God, but because it was incompatible with good faith to man being utterly inconsistent with allegiance to a Protestant government, from 3 o their oaths and obligations to which it gave them not only a release, but a crown of glory, as the reward of treachery and treason. io8 LORD ERSKINE. It was, indeed, with astonishment that I heard the Attorney-General stigmatize those wise regulations of our patriot ancestors with the title of factious and cruel impositions on the consciences and liberties of their fellow-citizens. Gentlemen, they were, at the 5 time, wise and salutary regulations ; regulations to which this country owes its freedom, and his Majesty his crown a crown which he wears under the strict entail of professing and protecting that religion which they were made to repress ; and which I know my ic noble friend at the bar joins with me, and with all good men, in wishing that he and his posterity may wear forever. 10 It is not my purpose to recall to your minds the fatal effects which bigotry has, in former days, pro- 1 5 duced in this island. I will not follow the example the Crown has set me, by making an attack upon your passions, on subjects foreign to the object before you. I will not call your attention from those flames, kindled by a villainous banditti (which they have thought fit, 20 in defiance of evidence, to introduce), by bringing -before your eyes the more cruel flames, in which the bodies of our expiring, meek, patient, Christian fathers were, little more than a century ago, consuming in 10 " Erskine here gives great prominence to his views of the 25 original necessity of the law of 1778, confirming them by pointed references in the next paragraph to the persecuting spirit of Pop- ery in order to enforce his next leading thought ; namely, that the Protestant Association originated in justifiable feelings, a point which was important to the defense of his client. This mode of 30 shaping one part of his speech to prepare the way for another part, and to support it, is one of the most admirable qualities of Mr. Erskine. " Goodrich. DEFENSE OF GORDON. 109 Smithfield. I will not call up from the graves of martyrs all the precious holy blood that has been spilled in this land, to save its established government and its reformed religion from the secret villainy and 5 the open force of Papists. The cause does not stand in need even of such honest arts ; and I feel my heart too big voluntarily to recite such scenes, when I reflect that some of my own, and my best and dearest pro- genitors, from whom I glory to be descended, ended 10 their innocent lives in prisons and in exile, only because they were Protestants. Gentlemen, whether the great lights of science and of commerce, which, since those disgraceful times, have illuminated Europe, may, by dispelling these 15 shocking prejudices, have rendered the Papists of this day as safe and trusty subjects as those who con- form to the national religion established by law, I shall not take upon me to determine. It is wholly unconnected with the present inquiry. We are not 20 trying a question either of divinity or civil policy; and I shall, therefore, not enter at all into the motives or merits of the act that produced the Protestant peti- tion to Parliament. It was certainly introduced by persons who cannot be named by any good citizen 25 without affection and respect. 11 But this I will say, without fear of contradiction, that it was sudden and unexpected ; that it passed with uncommon precipita- 11 " The bill was brought in by Sir George Saville, and sup- ported, among others, by Mr. Dunning, Mr. Thurlow, and Lord 3 Beauchamp, and passed into an act without any opposition in the House of Commons, and with very slight opposition in the Lords, and the King was known to have been favorable to it." Goodrich. HO LORD ERSKINE. tion, considering the magnitude of the object ; that it underwent no discussion ; and that the heads of the Church, the constitutional guardians of the national religion, were never consulted upon it. Under such circumstances, it is no wonder that many sincere 5 Protestants were alarmed ; and they had a right to spread their apprehensions. It is the privilege and the duty of all the subjects of England to watch over their religious and civil liberties, and to approach either their representatives or the Throne with their 10 fears and their complaints a privilege which has been bought with the dearest blood of our ancestors, and which is confirmed to us by law, as our ancient birth- right and inheritance. Soon after the repeal of the act the Protestant 15 Association began, and, from small beginnings, ex- tended over England and Scotland. A deed of associa- tion was signed, by all legal means to oppose the growth of Popery ; and which of the advocates for the Crown will stand up and say that such an union was illegal ?2o Their union was perfectly constitutional ; there was no obligation of secrecy ; their transactions were all public ; a committee was appointed for regularity and correspondence ; and circular letters were sent to all the dignitaries of the Church, inviting them to join 25 with them in the protection of the national religion. All this happened before Lord George Gordon was a member of, or the most distantly connected with it ; for it was not till November, 1779, that the London Association made him an offer of their chair, by a 30 unanimous resolution, communicated to him, unsought and unexpected, in a public letter, signed by the DEFENSE OF GORDON. m secretary in the name of the whole body ; and from that day, to the day he was committed to the Tower, I will lead him by the hand in your view, that you may see there is no blame in him. Though all his behavior 5 was unreserved and public, and though watched by wicked men for purposes of vengeance, the Crown has totally failed in giving it such a context as can justify, in the mind of any reasonable man, the conclusion it seeks to establish. 10 This will fully appear hereafter; but let us first attend to the evidence on the part of the Crown. 12 The first witness to support this prosecution is William Hay a bankrupt in fortune he acknowl- edges himself to be, and I am afraid he is a bankrupt *5 in conscience. Such a scene of impudent, ridiculous inconsistency would have utterly destroyed his credi- bility in the most trifling civil suit ; and I am, there- fore, almost ashamed to remind you of his evidence, when I reflect that you will never suffer it to glance 20 across your minds on this solemn occasion. This man, whom I may now, without offense or slander, point out to you as a dark Popish spy, who attended the meetings of the London Association to pervert their harmless purposes, conscious that the 25 discovery of his character would invalidate all his testimony, endeavored at first to conceal the activity of his zeal, by denying that he had seen any of the destructive scenes imputed to the Protestants. Yet, 12 There can be no better text from which to study the hand- 30 ling of evidence than the pages of this speech which follow. In them a student will find nearly all, if not all, of the general rules for sifting and valuing evidence brilliantly illustrated. H2 LORD ERSKINE. almost in the same breath, it came out, by his own confession, that there was hardly a place, public or private, where Riot had erected her standard, in which he had not been ; nor a house, prison, or chapel that was destroyed, to the demolition of which he had not 5 been a witness. He was at Newgate, the Fleet, at Langdale's, and at Coleman Street ; at the Sardinian Ambassador's, and in Great Queen Street, Lincoln's Inn Fields. What took him to Coachmakers' Hall ? He went there, as he told us, to watch their proceed- to ings, because he expected no good from them ; and to justify his prophecy of evil, he said, on his examina- tion by the Crown, that, as early as December, he had heard some alarming republican language. What language did he remember ? " Why, that the Lord 15 Advocate of Scotland was called only Harry Dundas ! " Finding this too ridiculous for so grave an occasion, he endeavored to put some words about the breach of the King's coronation oath 13 into the prisoner's mouth, as proceeding from himself ; which it is notorious he 20 read out of an old Scotch book, published near a century ago, on the abdication of King James the Second. Attend to his cross-examination. He was sure he had seen Lord George Gordon at Greenwood's room 25 in January ; but when Mr. Kenyon, who knew Lord George had never been there, advised him to recol- lect himself, he desired to consult his notes. First, he is positively sure, from his memory, that he had seen him there ; then he says, he cannot trust his 30 13 " Hay swore that Lord Gordon had declared that the King had broken his coronation oath." Goodrich. DEFENSE OF GORDON. 1 13 memory without referring to his papers. On looking at them, they contradict him ; and he then confesses that he never saw Lord George Gordon at Green- wood's room in January, when his note was taken, 5 nor at any other time. But why did he take notes? He said it was because he foresaw what would hap- pen. How fortunate the Crown is, gentlemen, to have such friends to collect evidence by anticipation ! When did he begin to take notes ? He said, on the io2ist of February, which was the first time he had been alarmed at what he had seen and heard, although, not a minute before, he had been reading a note taken at Greenwood's room in January, and had sworn that he had attended their meetings, from 15 apprehensions of consequences, as early as December. Mr. Kenyon, who now saw him bewildered in a maze of falsehood, and suspecting his notes to have been a villainous fabrication to give the show of cor- rectness to his evidence, attacked him with a shrewd- 20 ness for which he was wholly unprepared. You re- member the witness had said that he always took notes when he attended any meetings where he ex- pected their deliberations might be attended with dangerous consequences. " Give me one instance/' 25 says Mr. Kenyon, " in the whole course of your life, where you ever took notes before." Poor Mr. Hay was thunder-struck ; the sweat ran down his face, and his countenance bespoke despair not recollec- tion : u Sir, I must have an instance ; tell me when 30 and where ? " Gentlemen, it was now too late ; some instance he was obliged to give, and, as it was evident to everybody that he had one still to choose, I think H 4 LORD ER SKINS. he might have chosen a better. " He had taken notes at the General Assembly of the Church of Scotland, six- and-twenty years before ! " What! did he apprehend dangerous consequences from the deliberations of the grave elders of the Kirk ? Were they levying 5 war against the King? At last, when he is called upon to say to whom he communicated the intelli- gence he had collected, the spy stood confessed in- deed. At first he refused to tell, saying he was his friend, and that he was not obliged to give him up ; 10 and when forced at last to speak, it came out to be Mr. Butler, a gentleman universally known, and who, from what I know of him, I may be sure never em- ployed him, or any other spy, because he is a man every way respectable, but who certainly is not only 15 a Papist, but the person who was employed in all their proceedings, to obtain the late indulgences from Parliament. 14 He said Mr. Butler was his particular friend, yet professed himself ignorant of his religion. I am sure he could not be desired to conceal it. Mr. 20 Butler makes no secret of his religion. It is no re- proach to any man who lives the life he does. But Mr. Hay thought it of moment to his own credit in the cause, that he himself might be thought a Prot- estant, unconnected with Papists, and not a Popish 25 spy. So ambitious, indeed, was the miscreant of being useful in this odious character, through every stage of the cause, that, after staying a little in St. George's Fields, he ran home to his own house in St. Dunstan^c 14 " Mr. Charles Butler, author of the Reminiscences." Good- rich. DEFENSE OF GORDON. 115 church-yard, and got upon the leads, where he swore he saw the very same man carrying the very same flag he had seen in the fields. Gentlemen, whether the petitioners employed the same standard-man through 5 the whole course of their peaceable procession is cer- tainly totally immaterial to the cause, but the cir- cumstance is material to show the wickedness of the man. " How," says Mr. Kenyon, " do you know that it was the same person you saw in the fields ? 10 Were you acquainted with him?" " No." " How then ? " " Why, he looked liked a brewer's servant." Like a brewer s servant ! " What, were they not all in their Sunday's clothes ? " " Oh ! yes, they were all in their Sunday's clothes." "Was the man with the 15 flag then alone in the dress of his trade?" "No." " Then how do you know he was a brewer's servant ? " Poor Mr. Hay ! nothing but sweat and confusion again ! At last, after a hesitation, which everybody thought would have ended in his running out of court, 20 he said, "he knew him to be a brewer's servant, be- cause there was something particular in the cut of his coat, the cut of his breeches, and the cut of his stock- ings /" You see, gentlemen, by what strange means villainy 25 is detected. Perhaps he might have escaped from me, but he sunk under that shrewdness and sagacity, which ability, without long habits, does not provide. Gentle- men, you will not, I am sure, forget, whenever you see a man about whose apparel there is anything particu- 30 lar, to set him down for a brewer s servant. Mr. Hay afterward went to the lobby of the House of Commons. What took him there ? He thought Ii6 LORD ERSKINE. himself in danger ; and therefore, says Mr. Kenyon, you thrust yourself voluntarily into the very centre of danger. That would not do. Then he had a particu- lar friend, whom he knew to be in the lobby, and whom he apprehended to be in danger. " Sir, who was that 5 particular friend ? Out with it. Give us his name instantly." All in confusion again. Not a word to say for himself ; and the name of this person who had the honor of Mr. Hay's friendship will probably remain a secret forever. I0 It may be asked, are these circumstances material ? and the answer is obvious : they are material ; because, when you see a witness running into every hole and corner of falsehood, and, as fast as he is made to bolt out of one, taking cover in another, you will never 15 give credit to what that man relates, as to any possible matter which is to affect the life or reputation of a fellow-citizen accused before you. God forbid that you should. I might, therefore, get rid of this wretch altogether without making a single remark on that 20 part of his testimony which bears upon the issue you are trying ; but the Crown shall have the full benefit of it all. I will defraud it of nothing he has said. Notwithstanding all his folly and wickedness, let us for the present take it to be true, and see what it 25 amounts to. What is it he states to have passed at Coachmakers' Hall ? That Lord George Gordon desired the multitude to behave with unanimity and firmness, as the Scotch had done. Gentlemen, there is no manner of doubt that the Scotch behaved with 30 unanimity and firmness in resisting the relaxation of the penal laws against Papists, and that by that DEFENSE OF GORDON. 117 unanimity and firmness they succeeded ; 1B but it was by the constitutional unanimity and firmness of the great body of the people of Scotland whose example Lord George Gordon recommended, and not by the 5 riots and burning which they attempted to prove had been committed in Edinburgh in 1778. I will tell you myself, gentlemen, as one of the people of Scotland, that there then existed, and still exist, eighty-five societies of Protestants, who have 10 been, and still are, uniformly firm in opposing every change in that system of laws established to secure the Revolution ; and Parliament gave way in Scotland to their united voice, and not to the fire-brands of the rabble. It is the duty of Parliament to listen to the 15 voice of the people, for they are the servants of the people. And when the Constitution of church or state is believed, whether truly or falsely, to be in danger, I hope there never will be wanting men (notwithstand- ing the proceedings of to-day) to desire the people to 20 persevere and be firm. Gentlemen, has the Crown proved that the Protestant brethren of the London Association fired the mass-houses in Scotland or acted in rebellious opposition to law, so as to entitle it to wrest the prisoner's expressions into an excitation of 25 rebellion against the state, or of violence against the properties of English Papists, by setting up their firmness as an example ? Certainly not. They have not even proved the naked fact of such violences, though such proof would have called for no resist- 30 16 " The violent popular opposition manifested toward the pro- posed act extending the Roman Catholic Relief Bill to Scotland, caused it to be abandoned." Goodrich, Ii8 LORD ERSKINE. ance ; since to make it bear as rebel'ious advice to the Protestant Association of London, it must have been first shown that such acts had been perpetrated or encouraged by the Protestant societies in the North. 5 Who has dared to say this ? No man. The rabble in Scotland certainly did that which has since been done by the rabble in England, to the disgrace and reproach of both countries. But in neither country was there found one man of character or condition, of 10 any description, who abetted such enormities, nor any man, high or low, of any of the Associated Protestants, here or there, who were either convicted, tried, or taken on suspicion. As to what this man heard on the 2Qth of May, it 15 was nothing more than the proposition of going up in a body to St. George's Fields to consider how the peti- tion should be presented, with the same exhortations to firmness as before. The resolution made on the motion has been read, and when I come to state the 20 evidence on the part of my noble friend, I will show you the impossibility of supporting any criminal infer- ence from what Mr. Hay afterward puts in his mouth in the lobby, even taking it to be true. I wish here to be accurate [looking on a card on which he had taken 25 down his words]. He says : " Lord George desired them to continue steadfastly to adhere to so good a cause as theirs was ; promised to persevere in it him- self, and hoped, though there was little expectation at present from the House of Commons, that, they would 30 meet with redress from their mild and gracious Sovereign, who, no doubt, would recommend it to his DEFENSE OF GORDON. 119 ministers to repeal it." This was all he heard, and I will show you how this wicked man himself (if any belief is to be given to him) entirely overturns and brings to the ground the evidence of Mr. Bowen, 18 on 5 which the Crown rests singly for the proof of words which are more difficult to explain. Gentlemen, was this the language of rebellion ? If a multitude were at the gates of the House of Commons to command and -insist on a repeal of this law, why encourage their 10 hopes by reminding them that they had a mild and gracious Sovereign ? If war was levying against him, there was no occasion for his mildness and gracious- ness. If he had said, "Be firm and persevere, we shall meet with redress from the prudence of the Sov- 15 ereign," it might have borne a different construction ; because, whether he was gracious or severe, his pru- dence might lead him to submit to the necessity of the times. The words sworn to were, therefore, per- fectly clear and unambiguous " Persevere in your zeal 20 and supplications, and you will meet with redress from a mild and gracious King, who will recommend it to his ministers to repeal it." Good God ! if they were to wait till the King, whether from benevolence or fear, should direct his minister to influence the proceed- 25 ings of Parliament, how does it square with the charge of instant coercion or intimidation of the House of Commons ? If the multitude were assembled with the premeditated design of producing immediate repeal by terror or arms, is it possible to suppose that their 30 leader would desire them to be quiet, and refer them to those qualities of the Prince, which, however emi- 10 " The Chaplain of the House of Commons." Goodrich, 120 LORD ERSKINE. nently they might belong to him, never could be exerted on subjects in rebellion to his authority ? In what a labyrinth of nonsense and contradiction do men involve themselves, when, forsaking the rules of evidence, they would draw conclusions from words in 5 contradiction to language and in defiance of common sense ! The next witness that is called to you by the Crown is Mr. Metcalf. He was not in the lobby, but speaks only to the meeting in Coachmakers' Hall, 10 on the 29th of May, and in St. George's Fields. He says that at the former, Lord George reminded them that the Scotch had succeeded by their unanimity and hoped that no one who had signed the petition would be ashamed or afraid to show himself in the 15 cause ; that he was ready to go to the gallows for it ; that he would not present the petition of a lukewarm people ; that he desired them to come to St. -George's Fields, distinguished with blue cockades, and that they should be marshaled in four divisions. Then he 20 speaks to having seen them in the fields in the order which has been described ; and Lord George Gordon in a coach surrounded by a vast concourse of people, with blue ribbons, forming like soldiers, but was not near enough to hear whether the prisoner spoke to 25 them or not. Such is Mr. Metcalf's evidence ; and after the attention you have honored me with, and which I shall have occasion so often to ask again on the same subject, I shall trouble you with but one observation, namely, that it cannot, without absurdity, 30 be supposed that if the assembly at Coachmakers' Hall had been such conspirators as they are represented, DEFENSE OF GORDON. 121 their doors would have been open to strangers, like this witness, to come in to report their proceedings. The next witness is Mr. Anstruther, 17 who speaks to the language and deportment of the noble prisoner, 5 both at Coachmakers' Hall, on the 2gth of May, and afterward on the 2d of June, in the lobby of the House of Commons. It will be granted to me, I am sure, even by the advocates of the Crown, that this gentleman, not only from the clearness and consist- xoency of his testimony, but from his rank and character in the world, is infinitely more worthy of credit than Mr. Hay, who went before him. And from the cir- cumstances of irritation and confusion under which the Rev. Mr. Bowen confessed himself to have heard 15 and seen, what he told you he heard and saw, I may likewise assert, without any offense to the reverend gentleman, and without drawing any parallel between their credits, that where their accounts of this trans- action differ, the preference is due to the former. 20 Mr. Anstruther very properly prefaced his evidence with this declaration : " I do not mean to speak accurately to words ; it is impossible to recollect them at this distance of time." I believe I have used his very expression, and such expression it well became 25 him to use in a case of blood. But words, even if they could be accurately remembered, are to be admitted with great reserve and caution, when the purpose of the speaker is to be measured by them. They are transient and fleeting ; frequently the effect of a sud- 30 den transport, easily misunderstood, and often uncon- sciously misrepresented. It may be the fate of the 17 " This gentleman was a member of Parliament." Goodrich. 122 LORD ERSKINE. most innocent language to appear ambiguous, or even malignant, when related in mutilated, detached pas- sages, by people to whom it is not addressed, and who know nothing of the previous design either of the speaker or of those to whom he spoke. Mr. 5 Anstruther says that he heard Lord George Gordon desire the petitioners to meet him on the Friday fol- lowing, in St. George's Fields, and that if there were fewer than twenty thousand people, he would not present the petition, as it would not be of consequence 10 enough ; and that he recommended to them the ex- ample of the Scotch, who, by their firmness, had car- ried their point. Gentlemen, I have already admitted that they did by firmness carry it. But has Mr. Anstruther at- 15 tempted to state any one expression that fell from the prisoner to justify the positive, unerring conclusion, or even the presumption, that the firmness of the Scotch Protestants, by which the point was carried in Scotland, was the resistance and riots of the rabble? 20 No, gentlemen ; he simply states the words, as he heard them in the hall on the 29th, and all that he afterward speaks to in the lobby, repels so harsh and dangerous a construction. The words sworn to at Coachmakers' Hall are, "that he recommended tern- 25 perance and firmness." Gentlemen, if his motives are to be judged by words, for Heaven's sake let these words carry their popular meaning in language. Is it to be presumed, without proof, that a man means one thing because he says another ? Does the exhor- 30 tation to temperance and firmness apply most natu- rally to the constitutional resistance of the Protestants DEFENSE OF GORDON. 123 of Scotland, or to the outrages of ruffians who pulled down the houses of their neighbors ? Is it possible, with decency, to say, in a court of justice, that the recommendation of temperance is the excitation to 5 villainy and frenzy? But the words, it seems, are to be construed, not from their own signification, but from that which follows them, viz., " by that the Scotch carried their point." Gentlemen, is it in evi- dence before you that by rebellion the Scotch carried 10 their point ? or that the indulgences to Papists were not extended to Scotland because the rabble had opposed their extension ? Has the Crown authorized either the court or its law servants to tell you so ? Or can it be decently maintained that Parliament was so 15 weak or infamous as to yield to a wretched mob of vagabonds at Edinburgh what it has since refused to the earnest prayers of a hundred thousand Protestants of London ? No, gentlemen of the jury, Parliament was not, I hope, so abandoned. But the ministers 20 knew that the Protestants of Scotland were to a man abhorrent of that law. And though they never held out resistance, if government should be disposed to cram it down their throats by force, yet such violence to the united sentiments of a whole people appeared 25 to be a measure so obnoxious, so dangerous, and withal so unreasonable, that it was wisely and judi- ciously dropped, to satisfy the general wishes of the nation, and not to avert the vengeance of those low in- cendiaries whose misdeeds have rather been talked of 30 than proved. Thus, gentlemen, the exculpation of Lord George's gonc|uct on the 2o,th of May is sufficiently established 124 LORD ERSKINE. by the very evidence on which the Crown asks you to convict him. For, in recommending temperance and firmness after the example of Scotland, you cannot be justified in pronouncing that he meant more than the firmness of the grave and respectable people in that 5 country, to whose constitutional firmness the Legisla- ture had before acceded, instead of branding it with the title of rebellion ; and who, in my mind, deserve thanks from the King for temperately and firmly re- sisting every innovation which they conceived to be 10 dangerous to the national religion, independently of which his Majesty (without a new limitation by Parlia- ment) has no more title to the crown than I have. Such, gentlemen, is the whole amount of all my noble friend's previous communication with the peti- 15 tioners, whom he afterward assembled to consider how their petition should be presented. This is all, not only that men of credit can tell you on the part of the prosecution, but all that even the worst vagabond who ever appeared in a court the very scum of the 20 earth thought himself safe in saying, upon oath, on the present occasion. Indeed, gentlemen, when I consider my noble friend's situation, his open, unre- served temper, and his warm and animated zeal for a cause which rendered him obnoxious to so many 25 wicked men speaking daily and publicly to mixed multitudes of friends and foes, on a subject which affected his passions I confess I am astonished that no other expressions than those in evidence before you have found their way into this court. That they 30 have not found their way is surely a most satisfactory proof that there was nothing in his heart which even DEFENSE OF GORDON. 125 youthful zeal could magnify into guilt, or that want of caution could betray. Gentlemen, Mr. Anstruther's evidence, when he speaks of the lobby of the House of Commons, is 5 very much to be attended to. He says, " I saw Lord George leaning over the gallery," which position, joined with what he mentioned of his talking with the chaplain, marks the time and casts a strong doubt on Bowen's testimony, which you will find stands, in this 10 only material part of it, single and unsupported. " I then heard him," continues Mr. Anstruther, " tell them they had been called a mob in the House, and that peace-officers had been sent to disperse them (peaceable petitioners) ; but that by steadiness and 15 firmness they might carry their point ; as he had no doubt his Majesty, who was a gracious prince, would send to his ministers to repeal the act, when he heard his subjects were coming up for miles round, and wishing its repeal." How coming up? In rebellion 20 and arms to compel it ? No ! all is still put on the graciousness of the Sovereign, in listening to the unan- imous wishes of his people. If the multitude then assembled had been brought together to intimidate the House by their firmness, or to coerce it by their 25 numbers, it was ridiculous to look forward to the King's influence over it, when the collection of future multitudes should induce him to employ it. The ex- pressions were therefore quite unambiguous ; nor could malice itself have suggested another construc- Sotion of them, were it not for the fact that the House was at that time surrounded, not by the petitioners the noble prisoner had assembled, but by a 126 LORD ERSKINE. mob who had mixed with them, and who, therefore, when addressed by him, were instantly set down as his followers. He thought he was addressing the sober members of the association, who by steadiness and perseverance could understand nothing more 5 than perseverance in that conduct he had antecedently prescribed, as steadiness signifies a uniformity, not a change of conduct ; and I defy the Crown to find out a single expression, from the day he took the chair at the association to the day I am speaking of, that jus- 10 tifies any other construction of steadiness and firm- ness than that which I put upon it before. What would be the feelings of our venerable ances- tors, who framed the statue of treasons to prevent their children being drawn into the snares of death, unless 15 provably convicted by overt acts, if they could hear us disputing whether it was treason to desire harmless, unarmed men to be firm and of good heart, and to trust to the graciousness of their King ? Here Mr. Anstruther closes his evidence, which 20 leads me to Mr. Bowen, who is the only man I be- seech you, gentlemen of the jury, to attend to this circumstance Mr. Bowen is the only man who has attempted, directly or indirectly, to say that Lord George Gordon uttered a syllable to the multitude in 25 the lobby concerning the destruction of the mass- houses in Scotland. Not one of the Crown's wit- nesses ; not even the wretched, abandoned Hay, who was kept, as he said, in the lobby the whole afternoon, from anxiety for his pretended friend, has ever 30 glanced at any expression resembling it. They all with the expectation which he held out, from a DEFENSE OF GORDON. 127 mild and gracious Sovereign. Mr. Bowen alone goes on further, and speaks of the successful riots of the Scotch. But he speaks of them in such a manner, as, so far from conveying the hostile idea, which he 5 seemed sufficiently desirous to convey, tends directly to wipe off the dark hints and insinuations which have been made to supply the place of proof upon that subject a subject which should not have been touched on without the fullest support of evidence, and where 10 nothing but the most unequivocal evidence ought to have been received. He says, " his Lordship began by bidding them be quiet, peaceable, and steady " not " steady " alone ; though, if that had been the ex- pression, singly by itself, I should not be afraid to 15 meet it ; but, " Be quiet, PEACEABLE, and steady" Gentlemen, I am indifferent what other expressions of dubious interpretation are mixed with these. For you are trying whether my noble friend came to the House of Commons with a decidedly hostile mind ; 20 and as I shall, on the recapitulation of our own evi- dence, trace him in your view, without spot or stain, down to the very moment when the imputed words were spoken, you will hardly forsake the whole inno- cent context of his behavior, and torture your inven- 25 tions to collect the blackest system of guilt, starting up in a moment, without being previously concerted, or afterward carried into execution. First, what are the words by which you are to be convinced that the Legislature was to be frightened 30 into compliance, and to be coerced if terror should fail? "Be quiet, peaceable, and steady; you are a good people ; yours is a good cause : his Majesty is a 128 LORD ERSK1NE. gracious monarch, and when he hears that all his people, ten miles round, are collecting, he will send to his ministers to repeal the act." By what rules of construction can such an address to unarmed, defense- less men be tortured into treasonable guilt ? It is 5 impossible to do it without pronouncing even in the total absence of all proof of fraud or deceit in the speaker, that quiet signifies tumult and uproar, and \h& peace signifies war and rebellion. I have before observed that it was most important 10 for you to remember that, with this exhortation to quiet and confidence in the King, the evidence of all the other witnesses closed. Even Mr. Anstruther, who was a long time afterward in the lobby, heard nothing further ; so that if Mr. Bowen had been out 15 of the case altogether, what would the amount have been ? Why, simply, that Lord George Gordon, hav- ing assembled an unarmed, inoffensive multitude in St. George's Fields, to present a petition to Parlia- ment, and finding them becoming tumultuous, to the 20 discontent of Parliament and the discredit of the cause, desired them not to give it up, but to continue to show their zeal for the legal object in which they were engaged ; to manifest that zeal quietly and peace- ably, and not to despair of success ; since, though the 25 House was not disposed to listen to it, they had a gracious Sovereign, who would second the wishes of his people. This is the sum and substance of the whole. They were not, even by any one ambiguous expression, encouraged to trust to their numbers, as 30 sufficient to overawe the House, or to their strength to compel it, or to the prudence of the state in yield- DEFENSE OF GORDON. 129 ing to necessity, but to the indulgence of the King, in compliance with the wishes of his people. Mr. Bowen, however, thinks proper to proceed ; and I beg that you will attend to the sequel of his evidence. He 5 stands single in all the rest that he says, which might ' entitle me to ask you absolutely to reject it. But I have no objection to your believing every word of it, if you can : because, if inconsistencies prove any- thing, they prove that there was nothing of that de- 10 liberation in the prisoner's expressions which can justify the inference of guilt. I mean to be correct as to his words [looking at his words which he had noted down]. He says "that Lord George told the people that an attempt had been made to introduce 15 the bill into Scotland, and that they had no redress till the mass-houses were pulled down. That Lord Weymouth 18 then sent official assurances that it should not be extended to them." Gentlemen, why is Mr. Bowen called by the Crown to tell you this ? 20 The reason is plain : because the Crown, conscious that it could make no case of treason from the rest of the evidence, in sober judgment of law ; aware that it' had proved no purpose or act of force against the House of Commons, to give countenance to the accu- 25 sation, much less to warrant a conviction, found it necessary to hold up the noble prisoner as the wicked and cruel author of all those calamities in which every man's passions might be supposed to come in to assist his judgment to decide. They therefore made him 30 speak in enigmas to the multitude : not telling them to do mischief in order to succeed, but that by mis- chief in Scotland success had been obtained. 18 "Then Secretary for the Southern Department." Goodrich. 13 d LORD ERSKIXZ. But were the mischiefs themselves that did happen here of a sort to support such a conclusion? Can any man living, for instance, believe that Lord George Gordon could possibly have excited the mob to destroy the house of that great and venerable magis- 5 trate, who has presided so long in this high tribunal that the oldest of us do not remember him with any other impression than the awful form and figure of justice : a magistrate who had always been the friend . of the Protestant Dissenters against the ill-timed 10 jealousies of the Establishment his countryman, too, and, without adverting to the partiality not unjustly imputed to men of that country, a man of whom any country might be proud ? No, gentlemen, it is not credible that a man of noble birth and liberal educa- 15 tion (unless agitated by the most implacable personal resentment, which is not imputed to the prisoner) could possibly consent to the burning of the house of Lord Mansfield. 19 If Mr. Bowen, therefore, had ended here, I can 20 hardly conceive such a construction could be decently hazarded consistent with the testimony of the wit- nesses we have called. How much less, when, after the dark insinuations which such expressions might otherwise have been argued to convey, the very same 25 person, on whose veracity or memory they are only to 19 " This reference to Lord Mansfield, then seated on the bench as presiding judge at the age of seventy-six, is not only appropriate and beautiful in itself, but, as managed by Mr. Erskine, forms a most convincing proof in favor of Lord George Gordon. This 30 was one of Mr. Erskine's excellences that he never went out of his case for an illustration or a picture which refreshed the mind, but he brought back with him an argument" Goodrich. DEFENSE OF GORDON. 131 be believed, and who must be credited or discredited in toto, takes out the sting himself by giving them such an immediate context and conclusion as renders the pro- position ridiculous, which his evidence is brought for- 5 ward to establish ; for he says that Lord George Gordon instantly afterward addressed himself thus : " Beware of evil-minded persons who may mix among you and do mischief, the blame of which will be im- puted to. you." TO Gentlemen, if you reflect on the slander which I told you fell upon the Protestants in Scotland by the acts of the rabble there, I am sure you will see the words are capable of an easy explanation. But as Mr. Bowen concluded with telling you that he heard 15 them in the midst of noise and confusion, and as I can only take them from ///>/, I shall not make an attempt to collect them into one consistent discourse, so as to give them a decided meaning in favor of my client, because I have repeatedly told you that words imper- 20 fectly heard and partially related cannot be so recon- ciled. But this I will say that he must be a ruffian, and not a lawyer, who would dare to tell an English jury that such ambiguous words, hemmed closely in between others not only innocent but meritorious, are 25 to be adopted to constitute guilt, by rejecting both introduction and sequel, with which they are absolutely irreconcilable and inconsistent : for if ambiguous words, when coupled with actions, decipher the mind of the actor, so as to establish the presumption of 30 guilt, will not such as are plainly innocent and unam- biguous go as far to repel such presumption ? Is innocence more difficult of proof than the most malig- I3 2 LORD ERSKINE. nant wickedness? Gentlemen, I see your minds revolt at such shocking propositions. I beseech you to forgive me. I am afraid that my zeal has led me to offer observations which I ought in justice to have believed every honest mind would suggest to itself 5 with pain and abhorrence without being illustrated and enforced. I now come more minutely to the evidence on the part of the prisoner. I before told you that it was not till November, 10 1779, when the Protestant Association was already fully established, that Lord George Gordon was elected President by the unanimous voice of the whole body, unlocked for and unsolicited. It is surely not an im- material circumstance that at the very first meeting 15 where his Lordship presided, a dutiful and respectful petition, the same which was afterward presented to Parliament, was read and approved of ; a petition which, so far from containing anything threatening or offensive, conveyed not a very oblique reflection upon 20 the behavior of the people in Scotland. It states, that as England and that country were now one, and as official assurances had been given that the law should not pass there, they hoped the peaceable and constitu- tional deportment of the English Protestants would 25 entitle them to the approbation of Parliament. It appears by the evidence of Mr. Erasmus Mid- dleton, 30 a very respectable clergyman, and one of the committee of the Association, that a meeting had been held on the 4th of May, at which Lord George was 30 not present ; that at that meeting a motion had 80 " The first witness called for the prisoner." Goodrich. DEFENSE OF GORDON. 133 been made for going up with the petition in a body, but which, not being regularly put from the chair, no resolution was come to upon it ; and that it was like- wise agreed on, but in the same irregular manner, that 5 there should be no other public meeting previous to the presenting the petition. That this last resolution occasioned great discontent, and that Lord George was applied to by a large and respectable number of the Association to call another meeting to consider of 10 the most prudent and respectful method of presenting their petition : but it appears that, before he complied with their request, he consulted with the committee on the propriety of compliance, who all agreeing to it except the Secretary, his Lordship advertised the 15 meeting which was afterward held on the 2pth of May. The meeting was, therefore, the act of the whole Asso- ciation. As to the original difference between my noble friend and the committee on the expediency of the measure, it is totally immaterial ; since Mr. Mid- 20 dleton, who was one of the number who differed from him on that subject (and whose evidence is, therefore, infinitely more to be relied on), told you that his whole deportment was so clear and unequivocal, as to entitle him to assure you on his most solemn oath, that he in 25 his conscience believed his views were perfectly con- stitutional and pure. This most respectable clergyman further swears that he attended all the previous meet- ings of the society, from the day the prisoner became President to the day in question ; and that, knowing 30 they were objects of much jealousy and malice, he watched his behavior with anxiety, lest his zeal should furnish matter for misrepresentation ; but that he 134 LORD ERSItltfE. never heard an expression escape him which marked a disposition to violate the duty and subordination of a subject, or which could lead any man to believe that his objects were different from the avowed and legal objects of the Association. We could have examined 5 thousands to the same fact, for, as I told you when I began to speak, I was obliged to leave my place to disencumber myself from their names. This evidence of Mr. Middleton's as to the 2Qth of May, must, I should think, convince every man how 10 dangerous and unjust it is in witnesses, however per- fect their memories, or however great their veracity, to come into a criminal court where a man is standing for his life or death, retailing scraps of sentences which they had heard by thrusting themselves, from \$ curiosity, into places where their business did not lead them ; ignorant of the views and tempers of both speakers and hearers, attending only to a part, and, perhaps innocently, misrepresenting that part, from not having heard the whole. 20 The witnesses for the Crown all tell you that Lord George said he would not go up with the petition unless he was attended by twenty thousand people who had signed it. There they think proper to stop, as if he had said nothing further ; leaving you to say to 25 yourselves, what possible purpose could he have in assembling such a multitude on the very day the House was to receive the petition? Why should he urge it, when the committee had before thought it inex- pedient ? And why should he refuse to present it 30 unless so attended ? Hear what Mr. Middleton says. He tells you that my noble friend informed the peti- DEFENSE OF GORDON. 135 tioners that if it was decided they were not to attend to consider how their petition should be presented, he would with the greatest pleasure go up with it alone. But that, if it was resolved they should attend 5 it in person, he expected twenty thousand at the least should meet him in St. George's Fields, for that otherwise the petition would be considered as a forgery ; it having been thrown out in the House and elsewhere that the repeal of the bill was not the serious 10 wish of the people at large, and that the petition was a mere list of names on parchment, and not of men in sentiment. Mr. Middleton added, that Lord George adverted to the same objections having been made to many other petitions, and he, therefore, expressed an 15 anxiety to show Parliament how many were actually interested in its success, which he reasonably thought would be a strong inducement to the House to listen to it. The language imputed to him falls in most naturally with this purpose : " I wish Parliament to see 20 who and what you are ; dress yourselves in your best clothes " which Mr. Hay (who, I suppose, had been reading the indictment) thought it would be better to call " ARRAY YOURSELVES." He desired that not a stick should be seen among them, and that, if any man 25 insulted another, or was guilty of any breach of the peace, he was to be given up to the magistrates. Mr. Attorney-General, to persuade you that this was all color and deceit, says, " How was a magistrate to face forty thousand men ? How were offenders in 30 such a multitude to be amenable to the civil power ? " What a shameful perversion of a plain, peaceable pur- pose ! To be sure, if the multitude had been assem- 136 LORD ERSKINE. bled to resist the magistrate, offenders could not be secured. But they themselves were ordered to appre- hend all offenders among them, and to deliver them up to justice. They themselves were to surrender their fellows to civil authority if they offended. 5 But it seems that Lord George ought to have fore- seen that so great a multitude could not be collected without mischief. 21 Gentlemen, we are not trying whether he might or ought to have foreseen mischief, but whether he wickedly and traitorously preconcerted 10 and designed it. But if he be an object of censure for not foreseeing it, what shall we say to GOVERNMENT, that took no steps to prevent it, that issued no procla- mation, warning the people of the danger and illegality of such an assembly ? If a peaceable multitude, with 15 a petition in their hands, be an army, and if the noise and confusion inseparable from numbers, though with- out violence or the purpose of violence, constitute war, what shall be said of that GOVERNMENT which remained from Tuesday to Friday, knowing that an 20 army was collecting to levy war by public advertise- ment, yet had not a single soldier, no, nor even a con- stable, to protect the state ? Gentlemen, I come forth to do that for government which its own servant, the Attorney-General, has not 25 done. I come forth to rescue it from the eternal infamy which would fall upon its head, if the lan- guage of its own advocate were to be believed. But government has an unanswerable defense. It neither 21 This paragraph shows well two characteristics of this speech : 30 the frankness with which Lord Erskine stated an objection, and the skill with which he turned it against his opponents. DEFENSE OF GORDON-. 137 did nor could possibly enter into the head of any man in authority to prophesy human wisdom could not divine that wicked and desperate men, taking ad- vantage of the occasion which, perhaps, an imprudent 5 zeal for religion had produced, would dishonor the cause of all religions, by the disgraceful acts which followed. Why, then, is it to be said that Lord George Gor- don is a traitor, who, without proof of any hostile 10 purpose to the government of his country, only did not foresee what nobody else foresaw what those people whose business it is to foresee every danger that threatens the state, and to avert it by the interference of magistracy, though they could not but read the ad- 15 vertisement, neither did nor could possibly appre- hend?" How are these observations attempted to be an- swered ? Only by asserting, without evidence or even reasonable argument, that all this was color and 20 deceit. Gentlemen, I again say that it is scandalous and reproachful, and not to be justified by any duty which can possibly belong to an advocate at the bar of an English court of justice, to declare, without any proof or attempt at proof, that all a man's expres- 25 sions, however peaceable, however quiet, however constitutional, however loyal, are all fraud and villainy. Look, gentlemen, to the issues of life, which I before called the evidence of Heaven : I call them so still. Truly may I call them so, when, out of a book com- 30 22 it This was the great turning-point of the case, and it would have been impossible to state it in more simple or more powerful terms. " Goodrich. 138 LORD ERSKINE. piled by the Crown from the petition in the House of Commons, and containing the names of all who signed it, and which was printed in order to prevent any of that number being summoned upon the jury to try this indictment, not one criminal, or even a suspected name is 5 to be found, among this defamed host of petitioners ! After this, gentlemen, I think the Crown ought, in decency, to be silent. I see the effect this circum- stance has upon you, and I know I am warranted in my assertion of the fact. If I am not, why did not 10 the Attorney-General produce the record of some con- victions, and compare it with the list ? I thank them, therefore, for the precious compilation, which, though they did not produce, they cannot stand up and deny. 15 Solomon [Job] says, " Oh that mine adversary had written a book ! " My adversary has written a book, and out of it I am entitled to pronounce that it can- not again be decently asserted that Lord George Gordon, in exhorting an innocent and unimpeached 20 multitude to be peaceable and quiet, was exciting them to violence against the state. What is the evidence, then, on which this connec- tion with the mob is to be proved ? Only that they had blue cockades Are you or am I answerable for 25 every man who wears a blue cockade ? If a man commits murder in my livery or in yours, without command, counsel, or consent, is the murder ours ? In all cumulative, constructive treasons, you are to 23 " The members of the Association, at the meeting of St. 30 George's Fields, were distinguished by wearing cockades, on which were inscribed the words ' No Popery ' ! " Goodrich. DEFENSE OF GORDON. 139 judge from the tenor of a man's behavior, not from crooked and disjointed parts of it. " Nemo repente fuit turpissimus." No man can possibly be guilty of this crime by a sudden impulse of the mind, as he 5 may of some others ; and, certainly, Lord George Gordon stands upon the evidence at Coachmakers' Hall as pure and white as snow. He stands so upon the evidence of a man who had differed with him as to the expediency of his conduct, yet who swears 10 that from the time -he took the chair till the period which is the subject of inquiry, there was no blame in him. You, therefore, are bound as Christian men to be- lieve that, when he came to St. George's Fields that 15 morning, he did not come there with the hostile pur- pose of repealing a law by rebellion. But still it seems all his behavior at Coachmakers' Hall was color and deceit. Let us see, therefore, whether this body of men, when assembled, answered 20 the description of that which I have stated to be the purpose of him who assembled them. Were they a multitude arrayed for terror or force ? On the con- trary, you have heard, upon the evidence of men whose veracity is not to be impeached, that they were sober, 25 decent, quiet, peaceable tradesmen ; that they were all of the better sort ; all well-dressed and well-be- haved ; and that there was not a man among them who had any one weapon, offensive or defensive. Sir Philip Jennings Clerke 24 tells you he went into the 3 24 " This gentleman, in giving evidence on behalf of the pris- oner, deposed to the peaceable behavior of the members of the Association who formed the original procession to carry up the 140 LORD ERSKINE. Fields ; that he drove through them, talked to many individuals among them, who all told him that it was not their wish to persecute the Papists, but that they were alarmed at the progress of their religion from their schools. Sir Philip further told you that he never 5 saw a more peaceable multitude in his life ; and it appears upon the oaths of all who were present, 26 that Lord George Gordon went round among them, desir- ing peace and quietness. Mark his conduct, when he heard from Mr. Evans 26 10 that a low, riotous set of people were assembled in Palace Yard. Mr. Evans, being a member of the Protestant Association, and being desirous that noth- ing bad might happen from the assembly, went in his carriage with Mr. Spinage to St. George's Fields, to 15 inform Lord George that there were such people as- sembled (probably Papists), who were determined to do mischief. The moment he told him of what he petition, and whom he distinguished from the mob which after- ward assembled tumultuously about the House of Commons." 20 Goodrich. 25 "Sir James Lowther, another of the prisoner's witnesses, proved that Lord George Gordon and Sir Philip Jennings Clerke accompanied him in his carriage from the House, and the former entreated the multitudes collected to disperse quietly to their 25 homes. " Goodrich. 26 " A surgeon, who also was examined for the defense, and de- posed that he saw Lord George Gordon in the midst of one of the companies in St. George's Fields, and that it appeared his wish at that time, from his conduct and expressions, that, to prevent all 30 disorder, he should not be attended by the multitude across West- minster Bridge. This gentleman's evidence was confirmed by that of other witnesses." Goodrich, DEFENSE OF GORDON. 14* heard, whatever his original plan might have been, he instantly changed it on seeing the impropriety of it. " Do you intend," said Mr. Evans, " to carry up all these men with the petition to the House of Com- 5 mons ? " " Oh no ! no ! not by any means ; I do not mean to carry them all up." " Will you give me leave," said Mr. Evans, " to go round to the different divisions, and tell the people it is not your Lordship's purpose ? " He answered, " By all means." And 10 Mr. Evans accordingly went, but it was impossible to guide such a number of people, peaceable as they were. They were all desirous to go forward ; and Lord George was at last obliged to leave the Fields, exhausted with heat and fatigue, beseeching them to 15 be peaceable and quiet. Mrs. Whitingham set him down at the House of Commons ; and at the very time that he thus left them in perfect harmony and good order, it appears, by the evidence of Sir Philip Jennings Clerke, that Palace Yard was in an uproar, 20 filled with mischievous boys and the lowest dregs of the people. Gentlemen, I have all along tolckyou that the Crown was aware that it had no case of treason, without con- necting the noble prisoner with Consequences, which 25 it was in some luck to find advocates to state, without proof to support it. I can only speak for myself, that, small as my chance is (as times go) of ever arriving at high office, I would not accept of it on the terms of being obliged to produce against a fellow-citizen that 30 which I have been witness to this day. For Mr. Attorney-General perfectly well knew the innocent and laudable motive with which the protection was 142 LORD ERSKINE. given, that he exhibited as an evidence of guilt; 97 yet it was produced to insinuate that Lord George Gordon, knowing himself to be the ruler of those villains, set himself up as a savior from their fury. We called Lord Stormont to explain this matter to 5 you, who told you that Lord George Gordon came to Buckingham House, and begged to see the King, say- ing, he might be of great use in quelling the riots ; and can there be on earth a greater proof of conscious innocence? For if he had been the wicked mover of 10 them, would he have gone to the King to have con- fessed it, by offering to recall his followers from the mischiefs he had provoked ? No ! But since, not- withstanding a public protest issued by himself and the Association, reviling the authors of mischief, the 15 Protestant cause was still made the pretext, he thought his public exertions might be useful, as they might tend to remove the prejudices which wicked men had diffused. The King thought so likewise, and there- fore (as appears by Lord Stormont) refused to see 20 Lord George till he ^iad given the test of his loyalty by such exertions. But sure I am, our gracious Sov- ereign meant no trap for innocence, nor ever recom- mended it as such to his servants. 27 "A witness of the name of Richard Pond, called in support 25 of the prosecution, had sworn that, hearing his house was about to be pulled down, he applied to the prisoner for protection, and in consequence received the following document signed by him : ' All true friends to Protestants, I hope, will be particular, and do no injury to the property of any true Protestant, as I am 30 well assured the proprietor of this house is a staunch and worthy friend to the cause. G. GORDON.' " Goodrich. DEFENSE OF GORDON. 143 Lord George's language was simply this : " The multitude pretend to be perpetrating these acts, under the authority of the Protestant petition ; I assure your Majesty they are not the Protestant Association, 5 and I shall be glad to be of any service in suppress- ing them." I say BY GOD, that man is a ruffian who shall, after this, presume to build upon such honest, artless conduct, as an evidence of guilt. 28 Gentle- men, if Lord George Gordon had been guilty of high 10 treason (as is assumed to-day) in the face of the whole Parliament, how are all its members to defend themselves from the misprision 29 of suffering such a person to go at large and to approach his sovereign ? The man who conceals the perpetration of treason is 15 himself a traitor ; but they are all perfectly safe, for nobody thought of treason till fears arising from another quarter bewildered their senses. The King, 28 " The effect produced on the jury and spectators by this sud- den burst of feeling, is represented by eye-witnesses to have been 20 such as to baffle all powers of description. It was wholly unpre- meditated, the instantaneous result of th^t sympathy which exists between a successful speaker and his audience. In uttering this appeal to his Maker, Mr. Erskine's tone was one of awe and deep reverence, without the slightest approach toward the profane use 25 of the words, but giving them all the solemnity of a judicial oath. The magic of his eye, gesture, and countenance beaming with emotion, completed the impression, and made it irresistible. It was a thing which a man could do but once in his life. Mr. Erskine attempted it again in the House of Commons, and utterly 30 failed/' Goodrich. 29 " Misprision of treason consists in the bare knowledge and concealment of treason, without any degree of assent thereto, for any assent makes the party a principal traitor." " Blackstone's Comm.,"iv. 129, I. Goodrich. 144 LORD ERSKINE. therefore, and his servants, very wisely accepted his promise of assistance, and he flew with honest zeal to fulfill it. Sir Philip Jennings Clerke tells you that he made use of every expression which it was possible for a man in such circumstances to employ. Re begged 5 them, for God's sake, to disperse and go home ; declared his hope that the petition would be granted, but that rioting was not the way to effect it. Sir Philip said he felt himself bound, without being par- ticularly asked, to say everything he could in protec- 10 tion of an injured and innocent man, and repeated again, that there was not an art which the prisoner could possibly make use of, that he did not zealously employ ; but that it was all in vain. " I began/' says he, " to tremble for myself, when Lord George read 15 the resolution of the House, which was hostile to them, and said their petition would not be taken into consideration until they were quiet." But did he say, " therefore go on to burn and destroy " ? On the con- trary, he helped to pen that motion, and read it to the 20 multitude, as one which he himself had approved. After this he went into the coach with Sheriff Pugh, in the city ; and there it was, in the presence of the very magistrate whom he was assisting to keep the peace, that \\tpublicly signed the protection which has 25 been read in evidence against him ; although Mr. Fisher, who now stands in my presence, confessed in the Privy Council that he himself had granted similar protections to various people yet he was dismissed as having done nothing but his duty. 3 This is the plain and simple truth ; and for his just obedience to his Majesty's request, do the King's serv- DEFENSE OF GORDON. 1 45 ants come to-day into his court, where he is supposed in person to sit, to turn that obedience into the crime of high treason, and to ask you to put him to death for it. 5 Gentlemen, you have now heard, upon the solemn oaths of honest, disinterested men, a faithful history of the conduct of Lord George Gordon, from the day that he became a member of the Protestant Associa- tion to the day that he was committed a prisoner to 10 the Tower. And I have no doubt, from the attention with which I have been honored from the beginning, that you have still kept in your minds the principles to which I entreated you would apply it, and that you have measured it by that standard. You have, there- is fore, only to look back to the whole of it together ; to reflect on all you have heard concerning him ; to trace him in your recollection through every part of the transaction ; and, considering it with one manly, liberal view, to ask your own honest hearts, whether you can 20 say that this noble and unfortunate youth is a wicked and deliberate traitor, who deserves by your verdict to suffer a shameful and ignominious death, which will stain the ancient honors of his house forever. The crime which the Crown would have fixed upon 25 him is, that he assembled the Protestant Association round the House of Commons, not merely to influence and persuade Parliament by the earnestness of their supplications, but actually to coerce it by hostile, rebellious force ; that, finding himself disappointed 30 in the success of that coercion, he afterward incited his followers to abolish the legal indulgences to Papists, which the object of the petition was to repeal, 146 LORD ERSKINE. by the burning of their houses of worship, and the destruction of their property, which ended, at last, in a general attack on the property of all orders of men, religious and civil, on the public treasures of the nation, and on the very being of the government. 30 5 To support a charge of so atrocious and unnatural a complexion, the laws of the most arbitrary nations would require the most incontrovertible proof. Either the villain must have been taken in the overt act of wickedness, or, if he worked in secret upon others, 10 his guilt must have been brought out by the discovery of a conspiracy, or by the consistent tenor of crimi- nality. The very worst inquisitor that ever dealt in blood would vindicate the torture, by plausibility at least, and by the semblance of truth. 15 What evidence, then, will a jury of Englishmen ex- pect from the servants of the Crown of England, before they deliver up a brother accused before them to igno- miny and death ? What proof will their consciences require ? AVhat will their plain and manly understand- 20 ings accept of ? What does the immemorial custom of their fathers, and the written law of this land, warrant them in demanding ? Nothing less, in any case of blood, than the clearest and most unequivocal convic- tion of guilt. But in this case the Act has not even 25 trusted to the humanity and justice of our general law, but has said, in plain, rough, expressive terms -prov- ably ; that is, says Lord Coke, not upon conjectural pre- 30 " At the time of the interference of the military, the mob had attacked the Pay Office, and were attempting to break into the 30 Bank ; and to aid the work of the incendiaries, a large party had been sent to cut the pipes of thr New River." DEFENSE OF GORDON. 147 sumptions ', or infer ences y or strains of wit, but upon direct and plain proof. " For the King, Lords, and Commons," continues that great lawyer, " did not use, the word probably, for then a common argument might 5 have served, but provably, which signifies the highest force of demonstration." And what evidence, gentle- men of the jury, does the Crown offer to you in com- pliance with these sound and sacred doctrines of justice ? A few broken, interrupted, disjointed words, 10 without context or connection uttered by the speaker in agitation and heat heard, by those who relate them to you, in the midst of tumult and confusion and even those words, mutilated as they are, in direct opposition to, and inconsistent with repeated and 15 earnest declarations delivered at the very same time and on the very same occasion, related to you by a much greater number of persons, and absolutely incompatible with the whole tenor of his conduct. Which of us all, gentlemen, would be safe, standing at 20 the bar of God or man, if we were not to be judged by the regular current of our lives and conversations, but by detached and unguarded expressions, picked out by malice, and recorded, without context or cir- cumstances, against us ? Yet such is the only evidence 25 on which the Crown asks you to dip your hands, and to stain your consciences, in the innocent blood of the noble and unfortunate youth who stands before you on the single evidence of the words you have heard from their witnesses (for of what but words have you 3 heard ?), which, even if they had stood uncontroverted by the proofs that have swallowed them up, or unex- plained by circumstances which destroy their malig- 148 LORD ERSKINE. nity, could not, at the very worst, amount in law to more than a breach of the Act against tumultuous petitioning (if such an act still exists) ; since the worst malice of his enemies has not been able to bring up one single witness to say that he ever directed, 5 countenanced, or approved rebellious force against the Legislature of this country. It is, therefore, a matter of astonishment to me that men can keep the natural color in their cheeks when they ask for human life, even on the Crown's original case, though the prisoner 10 had made no defense. But will they still continue to ask for it after what they have heard ? I will just remind the Solicitor- General, before he begins his reply, what matter he has to encounter. He has to encounter this : that 15 the going up in a body was not even originated by I Lord George, but by others in his absence that when proposed by him officially as chairman, it was adopted by the whole Association, and consequently was their act as much as his that it was adopted, not 20 in a conclave, but with open doors, and the resolu- tion published to all the world that it was known, of course, to the ministers and magistrates of the country, who did not even signify to him, or to anybody else, its illegality or danger that decency and peace were 25 enjoined and commanded that the regularity of the procession, and those badges of distinction, which are now cruelly turned into the charge of an hostile array against him, were expressly and publicly directed for the preservation of peace and the prevention of 30 tumult that while the House was deliberating, he repeatedly entreated them to behave with decency DEFENSE OP GORDON. 149 and peace, and to retire to their houses, though he- knew not that he was speaking to the enemies of his, cause that when they at last dispersed, no man thought or imagined that treason had been committed 5 that he retired to bed, where he lay unconscious that ruffians were ruining him by their disorders in the night that on Monday he published an adver- tisement, reviling the authors of the riots, and, as the Protestant cause had been wickedly made the pretext 10 for them, solemnly enjoined all who wished well to it to be obedient to the laws (nor has the Crown even attempted to prove that he had either given, or that he afterward gave secret instructions in opposition to that public admonition) that he afterward begged an 15 audience to receive the King's commands that he waited on the ministers that he attended his duty in Parliament and when the multitude (among whom there was not a man of the associated Protestants) again assembled on the Tuesday, under pretense of 20 the Protestant cause, he offered his services, and read a resolution of the House to them, accompanied with every expostulation which a zeal for peace could possibly inspire that he afterward, in pursuance of the King's direction, attended the magistrates in their 25 duty, honestly and honorably exerting all his powen to quell the fury of the multitude ; a conduct which, to the dishonor of the Crown, has been scandalously turned against him, by criminating him with protec- tions granted publicly in the coach of the Sheriff of 30 London, whom he was assisting in his office of magis- tracy ; although protections of a similar nature were, to the knowledge of the whole Privy Council, granted 15 LORD ERSKINE. by Mr. Fisher himself, who now stands in my presence unaccused and unreproved, but who, if the Crown that summoned him durst have called him, would have dispersed to their confusion the slightest impu- tation of guilt. 5 What, then, has produced this trial for high treason, or given it, when produced, the seriousness and solem- nity it wears ? What but the inversion of all justice, by judging from consequences, instead of from causes and designs ? What but the artful manner in which 10 the Crown has endeavored to blend the petitioning in a body, and the zeal with which an animated disposi- tion conducted it, with the melancholy crimes that followed ? crimes which the shameful indolence of our magistrates which the total extinction of all police 15 and government suffered to be committed in broad day, and in the delirium of drunkenness, by an unarmed banditti, without a head without plan or object and without a refuge from the instant gripe of justice : a banditti with whom the associated Prot- 20 estants and their president had no manner of connec- tion, and whose cause they overturned, dishonored, and ruined. How unchristian, then, is it to attempt, without evidence, to infect the imaginations of men who are 25 sworn, dispassionately and disinterestedly, to try the trivial offense of assembling a multitude with a peti- tion to repeal a law (which has happened so often in all our memories), by blending it with the fatal catas- trophe, on which every man's mind may be supposed 3 to retain some degree of irritation ! O fie ! O fie ! Is the intellectual seat of justice to be thus impiously DEFENSE OF GORDON. IS 1 shaken ? Are your benevolent propensities to be thus disappointed and abused ? Do they wish you, while you are listening to the evidence, to connect it with unforeseen consequences, in spite of reason and 5 truth ? Is it their object to hang the millstone of prejudice around his innocent neck to sink him ? If there be such men, may Heaven forgive them for the attempt, and inspire you with fortitude and wisdom to discharge your duty with calm, steady, and reflect- 10 ing minds ! Gentlemen, I have no manner of doubt that you will. 31 I am sure you cannot but see, notwithstanding my great inability, increased by a perturbation of mind (arising, thank God ! from no dishonest cause), that 15 there has been not only no evidence on the part of the Crown to fix the guilt of the late commotions upon the prisoner, but that, on the contrary, we have been able to resist the probability, I might almost say the possibility of the charge, not only by living wit- so nesses, whom we only ceased to call because the trial would never have ended, but by the evidence of all 31 " This peroration is remarkable for the quiet and subdued tone which reigns throughout it. A less skilful advocate would have closed with a powerful appeal to the feelings of the jury, but Mr. 25 Erskine, with that quick instinct which enabled him to read the emotions of men in their countenances, saw that his cause was gained. He chose, therefore, to throw over his concluding remarks the appearance of a perfect understanding between him and the jury that the verdict of acquittal was already made up in their 30 minds, so that any appeal to their feelings would be wholly out of place. In his closing sentence, therefore, he does not ask a decision in his fa.vor but takes, it as a matter of course."* Qoodrich, 152 LORD ERSKINE. the blood that has paid the forfeit of that guilt already ; an evidence that I will take upon me to say is the strongest and most unanswerable which the combina- tion of natural events ever brought together since the beginning of the world for the deliverance of the 5 oppressed : since, in the late numerous trials for acts of violence and depredation, though conducted by the ablest servants of the Crown, with a laudable eye to the investigation of the subject which now engages us, no one fact appeared which showed any plan, any 10 object, any leader ; since, out of forty-four thousand persons who signed the petition of the Protestants, not one was to be found among those who were convicted, tried, or even apprehended on suspicion ; and since, out of all the felons who were let loose from prisons, 15 and who assisted in the destruction of our property, not a single wretch was to be found who could even attempt to save his own life by the plausible promise of giving evidence to-day. What can overturn such a proof as this ? Surely a 2 o good man might, without superstition, believe that such a union of events was something more than natural, and that a Divine Providence was watchful for the protection of innocence and truth. I may now, therefore, relieve you from the pain of 25 hearing me any longer, and be myself relieved from speaking on a subject which agitates and distresses me. Since Lord George Gordon stands clear of every hostile act or purpose against the Legislature of his country, or the properties of his fellow-subjects since 30 the whole tenor of his conduct repels the belief of the traitorous intention charged by the indictment my DEFENSE OF GORDON. 153 task is finished. I shall make no address to your passions. I will not remind you of the long and rigorous imprisonment he has suffered ; I will not speak to you of his great youth, of his illustrious birth, 5 and of his uniformly animated and generous zeal in Parliament for the Constitution of his country. Such topics might be useful in the balance of a doubtful case ; yet, even then, I should have trusted to the honest hearts of Englishmen to have felt them with- 10 out excitation. At present, the plain and rigid rules of justice and truth are sufficient to entitle me to your verdict. OF THE [UNIVERSITY PERSUASION. Beecber, Born 1813. Died 1887. SPEECH DELIVERED IN PHILHARMONIC HALL, LIVER- POOL, OCTOBER l6, 1863. [When Mr. Beecher went to England in 1863, English friends of the North urged him to speak publicly for Northern interests. They felt that as champions of the North they had been treated with contempt and vilification, and that unless he, as a prominent Abolitionist, should recognize their efforts, they were lost. More- over Parliament, appealed to publicly to declare for the Southern Confederacy, was willing, but not sure of the non-voting English, who held great power. Therefore, friends of the South had arranged to have orators go through the manufacturing districts for the purpose of enlisting the sympathies of the laboring classes. Mr. Beecher spoke with decided success at Manchester and Glas- gow in the face of great and organized opposition, and at Edin- burgh with little disturbance. The effect of these three speeches was widely felt. It looked as though the backbone of opposition had been broken ; but really the mob-spirit was only resting be- fore making a final and more desperate effort. Liverpool was the headquarters of the Southern sympathizers, and a great many Southern men were in the city. The feeling was very strong that if Mr. Beecher should succeed there, he would win the day ; and a determined and desperate effort was to be made to prevent the delivery of the speech. The streets were placarded with abusive and scurrilous posters, urging Englishmen to '* see that he gets the welcome he deserves." On the morning of the i6th the leading papers came out with violent and false editorials against Mr. Beecher, Jt was openly declared that if he LIVERPOOL SPEECH. 155 should dare to address the meeting, he would never leave the hall alive. It was well known that the mob was armed ; not so well known that a small armed band of young men were in a com- manding position at the right of the stage, determined, if any out- break occurred, to protect Mr. Beecher. The great hall was packed to the crushing point. For some moments before the time fixed for the commencement of the pro- ceedings there were cat-calls, groans, cheers, and hisses, and it was evident that a strong force of the pro-Southern (or at least of the anti-Beecher) party had congregated in front of the gallery and at the lower end of the body of the hall. When Mr. Beecher stepped on the platform, cheer rolled after cheer, and in the pauses in the hurrahing the hissing was' tremendous. The up- roar was long kept up, but finally the chairman, by appealing to the audience as Englishmen to stand up for fair play and not to withhold justice from a stranger, quieted it. Mr. Beecher was evidently prepared for some opposition ; but he could hardly have expected that his appearance at the front of the platform would rouse one portion of the audience to a high state of enthusiasm, and cause the other portion to approach almost a state of frenzy. For some time it was doubtful whether he would be allowed to speak ; but those who sat near him and observed his firmly com- pressed lips and imperturbable demeanor, saw at once that it would require something more than noise and spasmodic hisses to cause Mr. Beecher to lose heart. He stood calmly at the edge of the platform, waiting for the noise to cease. At last there was a lull, and the chairman made another appeal to the meeting for fair play. His assurance that Mr. Beecher, after his speech, would answer any questions which anyone might care to ask was not very favorably received, and a series of disturbances followed. When the scuffling had partly subsided, the chairman expressed his determination to preserve order by calling in, if necessary, the aid of the police. This announcement produced something like order, and Mr. Beecher took up the advantage and began his address. After Mr. Beecher had spoken amid almost constant interrup- tion for three hours his voice failed him, and he was forced to say, a.s he ende4 his speech, that he could not answer any questions I5 6 HENRY WARD BEECHER. unless there was perfect order. He replied in comparative quiet to one or two written questions, but when the disturbance was renewed, Mr. Beecher sat down. The speech, however, had been delivered, and was reported in full next day in the papers. ("Biography of H. W. Beecher/' by W. C. Beecher and Rev. S. Scoville, pp. 406-26.)] FOR more than twenty-five years I have been made perfectly familiar with popular assemblies in all parts of my country except the extreme South. There has not for the whole of that time been a single day of my life when it would have been safe for me to go 5 South of Mason's and Dixon's line in my own country, and all for one reason : my solemn, earnest, persist- ent testimony against that which I consider to be the most atrocious thing under the sun the system of American slavery in a great free republic. [Cheers.] 10 I have passed through that early period when right of free speech was denied to me. Again and again I have attempted to address audiences that, for no other crime than that of free speech, visited me with all manner of contumelious epithets ; and now since 15 I have been in England, although I have met with greater kindness and courtesy on the part of most than I deserved, yet, on the other hand, I perceive that the Southern influence prevails to some extent in England. [Applause and uproar.] It is my old 20 acquaintance ; I understand it perfectly 1 [laughter] 1 Evidently only the general outline of this speech could have been arranged by Beecher before he spoke, for many places show that a phrase or a sentence sprang to his lips as the suggestion of the moment. All the introductory matter to "There are two 25 dominant races," details of the argument, methods of appeal, and the appeals themselves, must have come spontaneously as the LIVERPOOL SPEECH. 157 and I have always held it to be an unfailing truth that where a man had a cause that would bear exami- nation he was perfectly willing to have it spoken about. [Applause.] And when in Manchester I saw those 5 huge placards : " Who is Henry Ward Beecher ? " [laughter, cries of " Quite right," and applause.] and when in Liverpool I was told that there were those blood-red placards, purporting to say what Henry Ward Beecher had said, and calling upon 10 Englishmen to suppress free speech I tell you what I thought. I thought simply this : " I am glad of it." [Laughter.] Why ? Because if they had felt per- fectly secure, that you are the minions of the South and the slaves of slavery, they would have been per- !5 fectly still. [Applause and uproar.] And, therefore, when I saw so much nervous apprehension that, if I were permitted to speak [hisses and applause] when I found they were afraid to have me speak [hisses, laughter, and " No, no ! "] when I found that 20 they considered my speaking damaging to their cause [applause] when I found that they appealed from facts and reasonings to mob law [applause and uproar] I said, no man need tell me what the heart and secret counsel of these men are. They tremble and 25 are afraid. 2 [Applause, laughter, hisses, " No, no ! " speaker watched his great unruly audience, coaxing it, urging it toward one or two statements which he wished them to hear. The quickness with which he took advantage of any change in the mood of his audience ; the aptness of his retorts, his jests, his 30 illustrations ; show how genuine was his self-possession, how great his mastery of extemporaneous speaking. 2 There are boldness and skill in the way Beecher here used the placards of his, enemies as an unanswerable argument against 158 A HENRY WARD BEECHER. and a voice : " New York mob."] Now, personally, it is a matter of very little consequence to me whether I speak here to-night or not. [Laughter and cheers.] But, one thing is very certain, if you do permit me to speak here to-night you will hear very plain talking. 5 [Applause and hisses.] You will not find a man [interruption] you will not find me to be a man that dared to speak about Great Britain three thousand miles off, and then is afraid to speak to Great Britain when he stands on her shores. [Immense applause 10 and hisses.] And if I do not mistake the tone and temper of Englishmen, they had rather have a man who opposes them in a manly way [applause from all parts of the hall] than a sneak that agrees with them in an unmanly way. [Applause and " Bravo ! "] 15 Now, if I can carry you with me by sound convictions, I shall be immensely glad [applause] ; but if I can- not carry you with me by facts and sound arguments, I do not wish you to go with me at all ; and all that I ask is simply FAIR PLAY. [Applause, and a voice : *o "You shall have it too."] Those of you who are kind enough to wish to favor my speaking and you will observe that my voice is slightly husky, from having spoken almost every night in succession for some time past, those 2 5 who wish to hear me will do me the kindness sim- ply to sit still, and to keep still ; and I and my friends the Secessionists will make all the noise. [Laughter.] /^There are two dominant races in modern history 30 them, and roused in the audience a feeling that an effort had rnade to trick LIVERPOOL SPEECH. 159 the Germanic and the Romanic races. 8 ^ The Germanic races tend to personal liberty, to a sturdy individual- ism, to civil and to political liberty. The Romanic race tends to absolutism in government ; it is clan- 5 nish ; it loves chieftains ; it develops a people that crave strong and showy governments to support and plan for them. The Anglo-Saxon race belongs to the great German family, and is a fair exponent of its peculiarities. The Anglo-Saxon carries self-govern- loment and self-development with him wherever he goes. He has popular GOVERNMENT and popu- lar INDUSTRY ; for the effects of a generous civil 3 In this speech Beecher first tried to win a hearing by making his audience feel that he was undaunted, determined, sincere, ready 15 in speech, and by appealing to the innate love of all Englishmen for fair play. Then, carefully avoiding any reference to the great moral reasons why Englishmen should have supported the North, and all the objections to the course of the North that must bring exciting debate, he sought some interest of his audience to which 20 he could appeal with some certainty of a hearing. This he found in the pocket-books of the manufacturers and the men employed by them. Knowing that the men, at least, believed that the South gave them a market for their goods, he devoted himself to showing that a free South would give them a far greater market. Baldly 25 taking for his central idea the very opinion on which the opposition to him most rested, he disposed of it before touching for a moment on great moral reasons for supporting the North, and before tak- ing up some of the objections to the course of the North that must meet him. Wherever he spoke, Beecher selected with great care 30 the interest to which he wished to appeal. In Manchester he dis- cussed the effect of slavery on manufacturing interests ; in Glas- gow, where the Mockade runners were building and the laboring classes were in a way bribed by their work to sympathize with the South, he spoke of the degrading effect on labor of the growth of slavery ; in Edinburgh, a literary center, he spoke of the philoso- phy, the history of slavery. I6o HENRY WARD BEECHER. liberty are not seen a whit more plain in the good order, in the intelligence, and in the virtue of a self- governing people, than in their amazing enterprise and the scope and power of their creative industry. The power to create riches is just as much a part of 5 the Anglo-Saxon virtues as the power to create good order and social safety. The things required for prosperous labor, prosperous manufactures^ and prosperous commerce are three. First, liberty ; sec- ond, liberty ; third, liberty. [Hear, hear !] Though I0 these are not merely the same liberty, as I shall show you. First, there must be liberty to follow those laws of business which experience has developed, without imposts or restrictions or governmental intrusions. Business simply wants to be let alone. [Hear, 15 hear !] Then, secondly, there must be liberty to distribute and exchange products of industry in any market without burdensome tariffs, without im- posts, and without vexatious regulations. There must be these two liberties liberty to create wealth, as the 20 ' makers of it think best, according to the light and ex- perience which business has given them ; and then libertyjto. distribute what they have created without unnecessary vexatious burdens. The comprehensive law of the ideal industrial condition of the world is 25 free manufacture and free trade. [Hear, hear! A voice : " The Morrill tariff." Another voice : " Mon- roe."] I have said there were three elements of liberty. The third is the necessity of an intelligent and free race of customers. There must be freedom 30 among producers ; there must be freedom among the distributors ; there must be freedom among the cus- LIVERPOOL SPEECH. 161 tomers. It may not have occurred to you that it makes any difference what one's customers are, but it does in all regular and prolonged business. The condition of the customer determines how much he 5 will buy, determines of what sort he will buy. Poor and ignorant people buy little and that of the poorest kind. The richest and the intelligent, having the more means to buy, buy the most, and always buy the best. Here, then, are the three liberties : liberty of 10 the producer, liberty of the distributor, and liberty of the consumer. The first two need no discussion ; they have been long thoroughly and brilliantly illus- trated by the political economists of Great Britain and by her eminent statesmen ; but it seems to me 15 that enough attention has not been directed to the third ; and, with-your patience, I will dwell upon that for a moment, before proceeding to other topics. It is a necessity of every manufacturing and com- mercial people that their customers should be very 20 wealthy and intelligent. Let us put the subject before you in the familiar light of your own local experience. To whom do the tradesmen of Liverpool sell the most goods at the highest profit ? To the ignorant and poor, or to the educated and prosperous? [A voice : 25 " To the Southerners." Laughter.] The poor man buys simply for his body ; he buys food, he buys clothing, he buys fuel, he buys lodging. His rule is to buy the least and the cheapest that he can. He goes to the store as seldom as he can ; he brings away 30 as little as he can ; and he buys for the least he can. [Much laughter.] tToverty_is_jiat-a- -misfortune to the poor only who suffer it, but it is more or less a mis- 162 HENRY WARD &EECHER. fortune to all with whom he deals. On the other hand, a man well off how is it with him? He buys in far greater quantity. He can afford to do it ; he has the money to pay for it. He buys in far greater variety, because he seeks to gratify not merely physical wants, 5 but also mental wants. He buys for the satisfaction of sentiment and taste, as well as of sense. He buys silk, wool, flax, cotton ; he buys all metals iron, sil- ver, gold, platinum ; in short he buys for all necessities, and all substances. But that is not all. He buys a 10 better quality of goods. He buys richer silks, finer cottons, higher grained wools. Now a rich silk means so much skill and care of somebody's that has been expended upon it to make it finer and richer ; and so of cotton and so of wool. That is, the price of the 15 finer goods runs back to the very beginning, and re- munerates the workman as well as the merchant. Now, the whole laboring community is as much inter- ested and profited as the mere merchant, in this buy- ing and selling of the higher grades in the greater 20 varieties and quantities. The law of price is the skill ; and the amount of skill expended in the work is as much for the market as are the goods. A man comes to market and says : " I have a pair of hands," and he obtains the lowest wages. Another man comes and 25 says : " I have something more than a pair of hands ; I have truth and fidelity." He gets a higher price. Another man comes and says : " I have something more ; I have hands, and strength, and fidelity, and skill." He gets more than either of the others. The 30 next man comes and says : " I have got hands, and strength, and skill, and fidelity ; but my hands work LIVERPOOL SPEECH. 163 more than that. They know how to create things for the fancy, for the affections, for the moral sentiments "; and he gets more than either of the others. The last man comes and says : " I have all these qualities, and 5 have them so highly that it is a peculiar genius " ; and genius carries the whole market and gets the highest price. 4 [Loud applause.] So that both the workman and the merchant are profited by having purchasers that demand quality, variety, and quantity. Now, if 10 this be so in the town or the city, it can only be so because it is a law. This is the specific development of a general or universal law, and therefore we should expect to find it as true of a nation as of a city like Liverpool. I know that it is so, and you know that it 15 is true of all the world ; and it is just as important to have customers educated, intelligent, moral, and rich out of Liverpool as it is in Liverpool. [Applause.] They are able to buy ; they want variety, they want the very best ; and those are the customers you want. 20 That nation is the best customer that is freest, because freedom works prosperity, industry, and wealth. ( Great Britain, then, aside from moral considerations, l ^has a direct commercial and pecuniary interest in the Jliberty, civilization, and wealth of every nation on the 25 globe. [Loud applause.] You also have an interest in this, because you are a moral and religious people. [ u Oh, oh ! " Laughter and applause.] You desire it from the highest motives ; and godliness is profitable in all things, having the promise of the life that now is, 30 as well as of that which is to come ; but if there were 4 Note here the force and the clearness gained by specific illus- tration of the general statement " The law of price is the skill/' etc 1 64 HENRY WARD BEECHER. no hereafter, and if man had no progress in this life, and if there were no question of civilization at all, it would be worth your while to protect civilization and liberty, merely as a commercial speculation. To evangelize has more than a moral and religious im- 5 port it comes back to temporal relations. Wherever a nation that is crushed, cramped, degraded under despotism is struggling to be free, you Leeds, Shef- field, Manchester, Paisley all have an interest that that nation should be free. When depressed and back- 10 ward people demand that they may have a chance to rise Hungary, Italy, Poland it is a duty for human- ity's sake, it is a duty for the highest moral motives, to sympathize with them ; but besides all these there is a material and an interested reason why you should 15 sympathize with them. Pounds and pence join with conscience and with honor in this design. Now, Great Britain's chief want is what ? They have said that your chief want is cotton. I deny it. Your chief want is consumers. [Applause 20 and hisses.] You have got skill, you have got capital, and you have got machinery enough to manufacture goods for the whole population of the globe. You could turn out fourfold as much as you do, if you only had the market to sell in. It is not so much the want, 2f therefore, of fabric, though there may be a temporary obstruction of it ; but the principal and increasing want increasing from year to year is, where shall we find men to buy what we can manufacture so fast ? [Inter- ruption, and a voice, " The Morrill tariff," and a^-3t plause.] Before the American war broke out, your ware- houses were loaded with goods that you could not sell. LIVERPOOL SPEECH. 165 [Applause and hisses.] You had over-manufactured ; what is the meaning of over-manufacturing but this : that you had skill, capital, machinery, to create faster than you had customers to take goods off your hands ? 5 And you know that rich as Great Britain is, vast as are her manufactures, if she could have fourfold the present demand, she could make fourfold riches to- morrow ; and every political economist will tell you that your want is not cotton primarily, but customers. 10 Therefore, the doctrine, how to make customers, is a great deal more important to Great Britain than the doctrine how to raise cotton. It is to that doctrine I ask from you, business men, practical men, men of fact, sagacious Englishmen to that point I ask a 15 moment's attention. [Shouts of " Oh, oh ! " hisses, and applause.] There are no more continents to be discovered. [Hear, hear !] The market of the future must be found how ? There is very little hope of any more demand being created by new fields. If 20 you are to have a better market there must be some kind of process invented to make the old fields better. [A voice, "Tell us something new," shouts of "Order," and interruption.] Let us look at it, then. You must civilize the world in order to make a better 25 class of purchasers. [Interruption.] If you were to press Italy down again under the feet of despotism, Italy, discouraged, could draw but very few supplies from you. But give her liberty, kindle schools throughout her valleys, spur her industry, make 3 treaties with her by which she can exchange her wine, and her oil, and her silk for your manufactured goods ; and for every effort that you make in that direction 166 HENRY WARD BEECHER. there will come back profit to you by increased traffic with her. [Loud applause.] If Hungary asks to be an unshackled nation if by freedom she will rise in virtue and intelligence, then by freedom she will acquire a more multifarious industry, which she will 5 be willing to exchange for your manufactures. Her liberty is to be found where ? You will find it in the Word of God, you will find it in the code of history ; but you will also find it in the Price Current [Hear, hear !J ; and every free nation, every civilized 10 people every people that rises from barbarism to industry and intelligence, becomes a better customer. A savage is a man of one story, and that one story a cellar. When a man begins to be civilized he raises another story. When you Christianize and civilize 15 the man, you put story upon story, for you develop faculty after faculty ; and you have to supply every story with your productions. The savage is a man one story deep ; the civilized man is thirty stones deep. [Applause.] Now, if you go to a lodging- 20 house, where there are three or four men, your sales to them may, no doubt, be worth something ; but if you go to a lodging-house like some of those which I saw in Edinburgh, which seemed to contain about twenty stories [" Oh, oh ! " and interruption], every 25 story of which is full, and all who occupy buy of you which is the better customer, the man who is drawn out, or the man who is pinched up? [Laughter.] Now, there is in this a great and sound principle of economy. ["Yah, yah!" from the passage outside 30 the hall, and loud laughter.] If the South should be rendered independent [at this juncture mingled LIVERPOOL SPEECH. 167 cheering and hissing became immense ; half the audience rose to their feet, waving hats and handker- chiefs, and in every part of the hall there was the greatest commotion and uproar.] You have had your 5 turn now ; now let me have mine again. [Loud ap- plause and laughter.] It is a little inconvenient to talk against the wind ; but after all, if you will just keep good-natured I am not going to lose my tem- per ; will you watch yours ? [Applause.] Besides 10 all that, it rests me, and gives me a chance, you know, to get my breath. [Applause and hisses.] And I think that the bark of those men is worse than their bite. They do not mean any harm they don't know any better. [Loud laughter, applause, hisses, and 15 continued uproar.] I was saying, when these responses broke in, that it was worth our while to consider both alternatives. What will be the result if this present struggle shall eventuate in the separation of America, and making the South [loud applause, hisses, hoot- 20 ing, and cries of " Bravo ! "] a slave territory exclu- sively [cries of " No, no ! " and laughter] and the North a free territory, what will be the final result ? You will lay the foundation for carrying the slave population clear through to the Pacific Ocean. This 25 is the first step. There is not a man that has been a leader of the South any time within these twenty years that has not had this for a plan. It was for this that Texas was invaded, first by colonists, next by marauders, until it was wrested from Mexico. It 30 was for this that they engaged in the Mexican War itself, by which the vast territory reaching to the Pacific was added to the Union. Never for a moment 1 68 HENRY WARD B EEC HER. have they given up the plan of spreading the American institutions, as they call them, straight through toward the West, until the slave, who has washed his feet in the Atlantic, shall be carried to wash them in the Pacific. [Cries of " Question," and uproar.] There ! 5 I have got that statement out, and you cannot put it back. [Laughter and applause.] Now, let us con- sider the prospect. If the South becomes a slave empire, what relation will it have to you as a customer ? [A voice : " Or any other man." Laughter.] It 10 would be an empire of twelve millions of people. Now, of these, eight millions are white, and four mil- lions black. [A voice : " How many have you got ?" Applause and laughter. Another voice : " Free your own slaves ! "] Consider that one-third of the whole 15 are the miserably poor, unbuying blacks. [Cries of " No, no ! " " Yes, yes ! " and interruption.] You do not manufacture much for them. [Hisses, " Oh ! " " No."] You have not got machinery coarse enough. [Laughter, and " No."] Your labor is too skilled by 20 far to manufacture bagging and linsey-woolsey. [A Southerner : " We are going to free them, every one."] Then you and I agree exactly. [Laughter.] One other third consists of a poor, unskilled, degraded white population ; and the remaining one-third, which 25 is a large allowance, we will say, intelligent and rich. Now here are twelve million of people, and only one-third of them are customers that can afford to buy the kind of goods that you bring to market. [Inter- ruption and uproar.] My friends, I saw a man once, 30 who was a little late at a railway station, chase an express train. He did not catch it. [Laughter.] If LIVERPOOL SPEECH. 169 you are going to stop this meeting, you have got to stop it before I speak ; for after I have got the things out, you may chase as long as you please you would not catch them. [Laughter and interruption.] But 5 there is luck in leisure ; I'm going to take it easy. [Laughter.] Two-thirds of the population of the Southern States to-day are non-purchasers of English goods. [A voice : " No, they are not ; " " No, no ! " and uproar.] Now you must recollect another fact 10 namely, that this is going on clear through to the Pacific Ocean ; and if by sympathy or help you estab- lish a slave empire, you sagacious Britons [" Oh, oh ! " and hooting] if you like it better, then, I will leave the adjective out [laughter, Hear ! and ap- 15 plause] are busy in favoring the establishment of an empire from ocean to ocean that should have fewest customers and the largest non-buying population. [Applause, " No, no ! " A voice : " I thought it was the happy people that populated fastest."] 20 Now, what can England make for the poor white population of such a future empire, and for her slave population ? What carpets, what linens, what cottons can you sell them? What machines, what looking- glasses, what combs, what leather, what books, what 25 pictures, what engravings ? [A voice : " We'll sell them ships."] You may sell ships to a few, but what ships can you sell to two-thirds of the population of poor whites and blacks ? [Applause.] A little bag- ging and a little linsey-woolsey, a few whips and 30 manacles, are all that you can sell for the slave. [Great applause and uproar.] This very day, in the slave States of America there are eight millions out of 17 HENRY WARD BEECHER. twelve millions that are not, and cannot be your custo- mers from the very laws of trade. [A voice : " Then how are they clothed ? " and interruption.]. . . But I know that you say, you cannot help sympa- thizing with a gallant people. [Hear, hear !] They 5 are the weaker people, the minority ; and you cannot help going with the minority who are struggling for their rights against the majority. Nothing could be more generous, when a weak party stands for its own legitimate rights against imperious pride and power, 10 than to sympathize with the weak. But who ever sympathized with a weak thief, because three con- stables had got hold of him ? [Hear, hear !] And yet the one thief in three policemen's hands is the weaker party. I suppose you would sympathize with 15 him. [Hear, hear ! laughter, and applause.] Why, when that infamous king of Naples Bomba, was driven into Gaeta by Garibaldi with his immortal band of patriots, and Cavour sent against him the army of Northern Italy, who was the weaker party 20 then ? The tyrant and his minions ; and the majority was with the noble Italian patriots, struggling for liberty. I never heard that Old England sent deputa- tions to King Bomba, and yet his troops resisted bravely there. [Laughter and interruption.] To-day 25 the majority of the people of Rome is with Italy. Nothing but French bayonets keeps her from going back to the kingdom of Italy, to which she belongs. Do you sympathize with the minority in Rome or the majority in Italy? 6 [A voice: "With Italy."] 30 5 Here Beecher, knowing that sympathy in England for the Italian struggle for independence was strong, made a reductio LIVERPOOL SPEECH, ijl To-day the South is the minority in America, and they are righting for independence! For what? [Uproar. A voice : " Three cheers for independence ! " and hisses.] I could wish so much bravery had a better 5 cause, and that so much self-denial had been less deluded ; that the poisonous and venomous doctrine of State rights might have been kept aloof ; that so many gallant spirits, such as Jackson, might still have lived. [Great applause and loud cheers, again and I0 again renewed.] The force of these facts, historical and incontrovertible, cannot be broken, except by diverting attention by an attack upon the North. It is said that the North is fighting for Union, and not for emancipation. The North is fighting for Union, 15 for that ensures emancipation. [Loud cheers, " Oh, oh ! " " No, no ! " and cheers.] A great many men say to ministers of the Gospel : "You pretend to be preaching and working for the love of the people. Why, you are all the time preaching for the sake of 20 the Church." What does the minister say? "It is by means of the Church that we help the people," and when men say that we are fighting for the Union, I too say we are fighting for the Union. [Hear, hear ! and a voice : " That's right."] But the motive defer- 25 mines the value ; and why are we fighting for the Union ? Because we never shall forget the testimony of our enemies. They have gone off declaring that the Union in the hands of the North was fatal to slavery- [Loud applause.] There is testimony in court for 30 you. [A voice : " See that," and laughter.] . . . ad absurdum of the principle of his opponents by an illustration of which he could speak without fear of hostile interruption. 172 HENRY WARD BEECH EX. In the first place I am ashamed to confess that such was the thoughtlessness [interruption] such was the stupor of the North [renewed interruption] you will get a word at a time ; to-morrow will let folks see what it is you don't want to hear that for 5 a period of twenty-five years she went to sleep, and permitted herself to be drugged and poisoned with the Southern prejudice against black men. [Applause and uproar.] The evil was made worse, because, when any object whatever has caused anger between 10 political parties, a political animosity arises against that object, no matter how innocent in itself ; no matter what were the original influences which ex- cited the quarrel. Thus the colored man has been the football between the two parties in the North, 15 and has suffered accordingly. I confess it to my shame. But I am speaking now on my own ground, for I began twenty-five years ago, with a small party, to combat the unjust dislike of the colored man. [Loud applause, dissension, and uproar. The inter- 20 ruption at this point became so violent that the friends of Mr. Beecher throughout the hall rose to their feet, waving hats and handkerchiefs, and renewing their shouts and applause. The interruption lasted some minutes.] Well, I have lived to see a total revolution 25 in the Northern feeling I stand here to bear solemn witness of that. It is not my opinion ; it is my knowl- edge. [Great uproar.] Those men who undertook to stand up for the rights of all men black as well as white have increased in number ; and now what 30 party in the North represents those men that resist the evil prejudices of past years ? The Republicans LIVERPOOL SPEECH. 173 are that party. [Loud applause.] And who are those men in the North that have oppressed the negro ? They are the Peace Democrats ; and the prej- udice for which in England you are attempting to pun- 5 ish me, is a prejudice raised by the men who have opposed me all my life. These pro-slavery Democrats abuse the negro. I defended him, and they mobbed me for doing it. Oh, justice ! [Loud laughter, applause, and hisses.] This is as if a man should commit an 10 assault, maim and wound a neighbor, and a surgeon being called in should begin to dress his wounds, and by and by a policeman should come and collar the surgeon and haul him off to prison on account of the wounds which he was healing. 15 Now, I told you I would not flinch from anything. I arn going to read you some questions that were sent after me from Glasgow, purporting to be from a work- ingman. [Great interruption.] If those pro-slavery interrupters think they will tire me out, they will do 20 more than eight millions in America could. [Applause and renewed interruption.] I was reading a question on your side too. " Is it not a fact that in most of the Northern States laws exist precluding negroes from equal civil and political rights with the whites? 25 That in the State of New York the negro has to be the possessor of at least $250 worth of property to entitle him to the privileges of a white citizen? That in some of the Northern States the colored man, whether bond or free, is by law excluded altogether, 30 and not suffered to enter the State limits, under severe penalties ? and is not Mr. Lincoln's own State one of them ? and in view of the fact that the 174 HENRY WARD BEECHER. twenty million dollars compensation which was promised to Missouri in aid of emancipation was de- feated in the last Congress (the strongest Republican Congress that ever assembled), what has the North done toward emancipation ? " Now, then, there's a 5 dose for you. [A voice : " Answer it."] And I will address myself to the answering of it. And first, the bill for emancipation in Missouri, to which this money was denied, was a bill which was drawn by what we call " log-rollers," who inserted in it an 10 enormously disproportioned price for the slaves. The Republicans offered to give them ten million dollars for the slaves in Missouri, and they outvoted it because they could not get twelve million dollars. Already half the slave population had been "run "15 down South, and yet they came up to Congress to get twelve million dollars for what was not worth ten millions, nor even eight millions. Now as to those States that had passed " black " laws, as we call them ; they are filled with Southern emigrants. 20 The southern parts of Ohio, the southern part of Indiana, where I myself lived for years, and which I knew like a book, the southern part of Illinois, where Mr. Lincoln lives [great uproar] these parts are largely settled by emigrants from 25 Kentucky, Tennessee, Georgia, Virginia, and North Carolina, and it was their vote, or the Northern votes pandering for political reasons to theirs, that passed in those States the infamous " black " laws; and the Republicans in these States have a 3 record, :/can and white, as having opposed these aws in every instance as " infamous." Now as to LIVERPOOL SPZECft. 175 the State of New York ; it is asked whether a negro is not obliged to have a certain freehold property, or a certain amount of property, before he can vote. It is so still in North Carolina and Rhode Island for 5 white folks it is so in New York State. [Mr. Beecher's voice slightly failed him here, and he was interrupted by a person who tried to imitate him. Cries of " Shame ! " and " Turn him out ! '*] I am not under- taking to say that these faults of the North, which 10 were brought upon them by the bad example and influence of the South, are all cured ; but I do say that they are in process of cure which promises, if unimpeded by foreign influence, to make all such odious distinctions vanish. 15 There is another fact that I wish to allude to not \ for the sake of reproach or blame, but by way of claiming your more lenient consideration and that is, that slavery was entailed upon us by your action/ [Hear, hear !] Against the earnest protests of the 20 colonists the then government of Great Britain I will concede not knowing what were the mischiefs ignorantly, but in point of fact, forced slave traffic on the unwilling colonists. [Great uproar, in the midst of which one individual was lifted up and carried out 25 of the room amid cheers and hisses.] The CHAIRMAN : If you would only sit down no disturbance would take place. 6 The similarity of this attempt of Mr. Beecher's to make his audience partly responsible for an evil condition of affairs in America to Lord Chatham's effort, p. 7, to shame his hearers by pointing out the source of the spirit of resistance of the colonists, should be noticed. 176 HENRY WARD BEECHER. The disturbance having subsided, MR. BEECHER said : I was going to ask you, sup- pose a child is born with hereditary disease ; suppose this disease was entailed upon him by parents who had contracted it by their own misconduct, would it 5 be fair that those parents that had brought into the world the diseased child, should rail at the child because it was diseased ? [ u No, no ! "] Would not the child have a right to turn round and say : " Father, it was your fault that I had it, and you ought to beio pleased to be patient with my deficiencies." [Applause and hisses, and cries of u Order ! " Great interruption and great disturbance here took place on the right of the platform ; and the chairman said that if the per- sons around the unfortunate individual who had caused 15 the disturbance would allow him to speak alone, but not assist him in making the disturbance, it might soon be put an end to. The interruption continued until another person was carried out of the hall.] Mr. Beecher continued : I do not ask that you should 20 justify slavery in us, because it was wrong in you two hundred years ago ; but having ignorantly been the means of fixing it upon us, now that we are struggling with mortal struggles to free ourselves from it, we have a right to your tolerance, your patience, and 25 charitable constructions. No man can unveil the future ; no man can tell what revolutions are about to break upon the world ; no man can tell what destiny belongs to France, nor to any of the European powers ; but one thing is 30 certain, that in the exigencies of the future there will be combinations and recombinations, and that those LIVERPOOL SPEECH. 177 nations that are of the same faith, the same blood, and the same substantial interests, ought not to be alienated from each other, but ought to stand to- gether. [Immense cheering and hisses.] I do not 5 say that you ought not to be in the most friendly alliance with France or with Germany ; but I do say that your own children, the offspring of England, ought to be nearer to you than any people of strange tongue. [A voice : " Degenerate sons," applause and hisses ; 10 another voice : " What about the Trent? "] If there had been any feelings of bitterness in America, let me tell you that they had been excited, rightly or wrongly, under the impression that Great Britain was going to intervene between us and our own lawful 15 struggle. [A voice : " No ! " and applause.] With the evidence that there is no such intention all bitter feelings will pass away. [Applause.] We do not agree with the recent doctrine of neutrality as a ques- tion of law. But it is past, and we are not disposed 20 to raise that question. We accept it now as a fact, and we say that the utterance of Lord Russell at Blairgowrie [Applause, hisses, and a voice : " What about Lord Brougham ? "] together with the decla- ration of the government in stopping war-steamers 25 here [Great uproar, and applause] has gone far toward quieting every fear and removing every appre- hension from our minds. [Uproar and shouts of applause.] And now in the future it is the work of every good man and patriot not to create divisions, 30 but to do the things that will make for peace. [" Oh, oh ! " and- laughter.] On our part it shall be done. [Applause and hisses, and " No, no ! "] On your I7 HENRY WARQ BEECHER. part it ought to be done ; and when in any of the convulsions that come upon the world, Great Britain finds herself struggling single-handed against the gi- gantic powers that spread oppression and darkness [Applause, hisses, and uproar] there ought to 5 be such cordiality that she can turn and say to her first-born and most illustrious child, " Come ! " [Hear, hear ! applause, tremendous cheers, and up- roar.] I will not 'say that England cannot again, as hitherto, single-handed manage any power [applause 10 and uproar] but I will say that England and America together for religion and liberty [A voice : " Soap, soap," uproar, and great applause] are a match for thejyorld. [Applause ; a voice : " They don't want any more soft soap."] Now, gentlemen and ladies 15 [A voice : " Sam Slick " ; and another voice : " Ladies and gentlemen, if you please "] when I came I was asked whether I would answer questions, and I very readily consented to do so, as I had in other places ; but I will tell you it was because I expected to have 20 the opportunity of speaking with some sort of ease and quiet. [A voice : " So you have."] I have for an hour and a half spoken against a storm [Hear, hear !] and you yourselves are witnesses that, by the interruption, I have been obliged to strive with 25 my voice, so that I no longer have the power to con- trol this assembly. [Applause.] And although I am in spirit perfectly willing to answer any question, and more than glad of the chance, yet I am by this very unnecessary opposition to-night incapacitated physi-30 cally from doing it. Ladies and gentlemen, I bid you good-evening. Born 1800. Died 1859. SPEECH DELIVERED IN THE HOUSE OF COMMONS, FEBRUARY 5, 1841. * [On the 2gth of January, 1841, Mr. Sergeant Talfourd obtained leave to bring in a bill to extend the term of copyright in a book to sixty years, reckoned from the death of the writer. "In 1814, the term during which the right of printing a book was to con- tinue private property had been fixed at twenty-eight years from the date of publication. The shortness of this term had always been regarded as a grievance by authors and by publishers, and was beginning to be so regarded by the world at large. ' The family of Sir Walter Scott/ says Miss Martineau in her ' History of England,' ' stripped by his great losses, might be supposed to have an honorable provision in his splendid array of works, which the world was still buying as eagerly as ever ; but the copyright of ' ' Waverley " was about to expire ; and there was no one who could not see the injustice of transferring to the public a property so evidently sacred as theirs.' " An arrangement which bore hardly upon the children of the great Scotchman, whose writings had been popular and profitable from the first, was nothing less than cruel in the case of authors who, after fighting a lifelong battle against the insensibility of 1 What should, perhaps, most be noted in this speech are the careful introduction, the probative effect of the steadily concrete treatment of the case, and the work in refutation, both special and general. Indeed, this speech may well be analyzed with a class that is studying pp. 109-125 of the " Principles of Argumenta- tion," Ginn & Co. 180 LORD MACAULAY. their countrymen, had ended by creating a taste for their own works. Wordsworth's poetry was at length being freely bought by a generation which he himself had educated to enjoy it ; but, as things then stood, his death would at once rob his heirs of all share in the produce of the ' Sonnets ' and the ' Ode to Immor- tality,' and would leave them to console themselves as they best might with the copyright of the ' Prelude/ Sou they (firmly pos- sessed, as he was, with the notion that posterity would set the highest value upon those among his productions which living men were the least disposed to purchase) had given it to be understood that, in the existing state of the law, he should undertake no more works of research like the ' History of Brazil,' and no more epic poems on the scale of ' Madoc ' and ' Roderick.' But there was nothing which so effectually stirred the sympathies of men in power, and persuaded their reason, as a petition presented to the House of Commons by ' Thomas Carlyle, a writer of books ' ; which began by humbly showing ' That your petitioner has written certain books, being incited thereto by certain innocent and laud- able considerations ' ; which proceeded to urge ' that this his labor .has found hitherto, in money or money's worth, small rec- ompense or none ; that he is by no means sure of its ever find- ing recompense ; but thinks that, .if so, it will be at a distant time, when he, the laborer, will probably no longer be in need of money, and those dear to him will still be in need of it'; and which ended by a prayer to the House to forbid * extraneous per- sons, entirely unconcerned in this adventure of his, to steal from him his small winnings, for a space of sixty years at the shortest. After sixty years, unless your honorable House provide otherwise, they may begin to steal.' '' Macaulay . . . induced a thin House to reject the bill by a few votes. [45 to 38.] Talfourd, in the bitterness of his soul, ex- claimed that Literature's own familiar friend, in whom she trusted, and who had eaten of her bread, had lifted up his. heel against her. . . But none can refuse a tribute of respect to a man who, on high grounds of public expediency, thought himself bound to em- ploy all that he possessed of energy and ability on the task of preventing himself from being placed in a position to found a fortune, which by the year 1919, might well have ranked among COPYRIGHT. 181 the largest funded estates in the country." Life and Letters of Lord Macau/ay. G. O. Trevelyan ; vol. ii. pp. 119-121. Harper & Bros., 1896.] THOUGH, Sir, it is in some sense agreeable to ap- proach a subject with which political animosities have nothing to do, I offer myself to your notice with some reluctance. J^is painful to me to take a course which 5 may possibly be misunderstood or misrepresented as unfriendly to the interests of literature and literary men. It is painful to me, I will addpto oppose my honorable and learned friend on a question which he has taken up from the purest motives, and which he 10 regards with a parental interest. These feelings have hitherto kept me silent when the law of copyright has been under discussion. But as I am, on full con- sideration, satisfied that the measure before us will, if adopted^ inflict grievous injury on the public, without 15 conferring any compensating advantage on men of ^ letters, I think it my duty to avow that opinion and to defend it. ^ The first thing to be done, Sir, is to settle on what principles the question is to be argued. Are we free 20 to legislate for the public good, or are we not? Is this a question of expediency, or is it a question o right ? cMany of those who have written and petitioned against the existing state of things treat the question as one of ight. \/jThe law of nature, according to them, 25 gives to every man a sacred and indefeasible property in his own ideas, in the fruits of his own reason and imagination. The'legislature has indeed the power to take away this property, just as it has the power to pass an act of attainder for cutting off an innocent l82 LORD MACAULAY. man's head without a trial. But, as such an act of attainder would be legal murder, so would an act in- vading the right of an author to his copy be, accord- ing to these gentlemen, legal robbery. Now, Sir, if this be so, let justice be done, cost 5 what it may. I am not prepared, like my honorable and learned friend, to agree to a compromise between right and expediency, and to commit an injustice for the public convenience. But I must say, that his theory soars far beyond the reach of my faculties. '! It 10 is not necessary to go, on the present occasion, into a metaphysical inquiry about the origin of the right of property j and certainly nothing but the strongest ne- cessity would lead me to discuss a subject so likely to be distasteful to the House. I agree, I own, with 15 Paley in thinking that property is the creature of the law, and that the law which creates property can be defended only on this ground, that it is a law benefi- cial to mankind. But it is unnecessary to debate that point. For, even if I believed in a natural right of 20 property, independent of utility and anterior to legisla- tion, I should still deny that this right could survive the original proprietor Jb Few, I apprehend, even of those who have studied in the most mystical and sen- timental schools of moral philosophy, will be disposed 25 to maintain that there is a natural law of succession older and of higher authority than any human code. If there be, it is quite certain that we have abuses to reform much more serious than any connected with the question of copyright. For this natural law can 30 be only one ; and the modes of succession in the Queen's dominions are twenty. To go no further than COPYRIGHT. 183 England, land generally descends to the eldest son. In Kent the sons share and share alike. In many districts the youngest takes the whole. Formerly a portion of a man's personal property was secured to 5 his family ; and it was only of the residue that he could dispose by will. Now, he can dispose of the whole by will ; but you limited his power, a few years ago, by enacting that the will should not be valid un- less there were two witnesses. If a man dies intestate 10 his personal property generally goes according to the statute of distributions ; but there are local customs which modify that statute. Now which of all these systems is conformed to the eternal standard of right ? Is it primogeniture, or gavelkind, 2 or borough Eng- 15 lish ? 3 Are wills jure divino? Are the two witnesses jure divino ? Might not the pars rationabilis of our old law have a fair claim to be regarded as of celestial institution ? Was the statute of distributions enacted in Heaven long before it was adopted by Parliament ? 20 Or is it to Custom of York, or tp Custom of London that this pre-eminence belongs ? A Surely, Sir, even those who hold that there is a natural right of property must admit that rules prescribing the manner in which the effects of deceased persons shall be distrib- 25 uted are purely arbitrary, and originate altogether in the^ will of the legislature. If so, Sir, there is no con- troversy between my honorable and learned friend and myself as to the principles on which this question is to be argued. For the existing law gives an author 30 2 Inheritance by afi the sons together. 3 "Descent to the youngest son instead of the eldest, or, if the owner leaves no son, to the youngest brother." Century 184 LORD MACAULAY. copyright during his natural life ; nor do I propose to invade that privilege, which I should, on the contrary, be prepared to defend strenuously against any as- , sailant. The only point in issue between us is, how long after an author's death the State shall recognize 5 " a copyright in his representatives and assigns ; and it can, I think, hardly be disputed by any rational man that this is a point which the legislature is free to de- termine in the way which may appear to be most con- ducive to the general good. 10 We may now, therefore, I think, descend from these high regions, where we are in danger of being lost in the clouds, to firm ground and clear light. Let us look at this question like legislators, and after fairly balancing conveniences and inconveniences, 15 pronounce between the existing law of copyright and the law now proposed to us. The question of copy- right, Sir, like most questions of civil prudence, is neither black nor white, but gray. The system of copyright has great advantages and great disadvan- 20 tages ; and it is our business to ascertain what these are, and then to make an arrangement imder which the advantages may be as far as possible secured, and the disadvantages as far as possible excluded. The charge which I bring against my honorable and 25 learned friend's bill is this, that it leaves the advan- tages nearly what they are at present, and increases the disadvantages at least fourfold. The advantages arising from a system of copyright are obvious. It is desirable that we should have a 30 supply of good books : we cannot have such a supply Unless, men o.f letters are liberally remunerated ; and COPYRIGHT. 185 the least objectionable way of remunerating them is by means of cqrjyright. You cannot depend for lite- rary instruction and amusement on the leisure of men occupied in the pursuits of active life. Such men may 5 occasionally produce compositions of great merit. But you must not look to such men for works which re- quire deep meditation and long research. v -Works of that kind you can expect only from persons who make literature the business of their lives. Of these 10 persons few will be found among the rich and the noble. The rich and the noble are not impelled to intellectual exertion by necessity. They may be im- pelled to intellectual exertion by the desire of distin- guishing themselves, or by the desire of benefiting the 15 community. But it is generally within these walls that they seek to signalize themselves and to serve their fellow-creatures. Both their ambition and their public spirit, in a country like this, naturally take a political turn. It is then on men whose profession is litera- 2oture, and whose private means are not ample, that you must rely for a supply of valuable books. Such men must be remunerated for their literary labor. / And there are only two ways in which they can be I j remunerated. One of those ways is patronage ; the 25 other is copyright. There have been times in which men of letters looked, not to the public, but to the government, or to a few great men, for the reward of their exertions. It was thus in the time of Maecenas and Pollio 4 at 30 4 Caius Asinius Pollio. Born about 76 B. c. Died 6 A. D. Politician, commander, author. He was a patron of Vergil and Horace. Century Diet. 1 86 LORD MA CAUL AY. Rome, of the Medici at Florence, of Lewis the Four- teenth in France, of Lord Halifax 5 and Lord Oxford 6 in this country. Now, Sir, I well know that there are cases in which it is fit and graceful, nay, in which it is a sacred duty to reward the merits or to relieve 5 the distresses of men of genius by the exercise of this species of liberality. But these cases are exceptions. I can conceive no system more fatal to the integrity and independence of literary men than one under which they should be taught to look for their daily 10 bread to the favor of ministers and nobles. I can conceive no system more certain to turn those minds which are formed by nature to be the blessings and ornaments of our species into public scandals and pests. 15 ^We have, then, only one resource left. We must betake ourselves to copyright, be the inconveniences of copyright what they may. Those inconveniences, in truth, are neither few nor small. Copyright is mo- nopoly, and produces all the effects which the general 20 voice of mankind attributes to monopoly. My honor- able and learned friend talks very contemptuously of those who are led away by the theory that monopoly 5 Charles Montague. Born 1661. Died 1715. "Statesman, financier, and poet. Royal Society, 1695-98. Collaborator of 25 Prior in the ' City Mouse and Country Mouse ' (1687)." Century Diet. 6 Robert Harley. Born 1661. Died 1724. "Statesman. He left a valuable collection of MSS., increased by his son and eventually acquired by the government for the British Museum. 30 A selection of rare pamphlets from his library was published under the title of the Harleian Miscellany, 1744-46." Century COPYRIGHT. 187 makes things dear. That monopoly makes things dear is certainly a theory, as all the great truths which have been established by the experience of all ages and nations, and which are taken for granted in all 5 reasonings, may be said to be theories. It is a theory in the same sense in which it is a theory that day and night follow each other, that lead is heavier than water, that bread nourishes, that arsenic poisons, that alcohol intoxicates. If, as my honorable and learned 10 friend seems to think, the whole world is in the wrong on this point, if the real effect of monopoly is to make articles gobd and cheap, why does he stop short in- his career of change ? 7 Why does he limit the opera- tion of so salutary a principle to sixty years ? Why 15 does he consent to anything short of a perpetuity ? He told us that in consenting to anything short of a perpetuity he was making a compromise between ex- treme n^l^jjid^^^edjejicy. But if his opinion about monopoly be correct, extreme right and expediency 20 would coincide. Or rather why should we not restore the monopoly of the East India trade to the East India Company ? Why should we not revive all those old monopolies which, in Elizabeth's reign, galled our fathers so severely that, maddened by intolerable 25 wrong, they opposed to their sovereign a resistance before which her haughty spirit quailed for the first and for the last time? Was it the cheapness and ex- cellence of commodities that then so violently stirred the indignation of the English people. I believe, Sir, 30 that I may safely take it for granted that the effect of 1 Note the skillful use of the reductio ad absurdum in this paragraph. 1 88 LORD MACAULAY.. monopoly generally is to make articles scarce, to make them dear, and to make them bad. And I may with equal safety challenge my honorable friend to find out any distinction between copyright and other privi- leges of the same kind ; any reason why a monopoly 5 of books should produce an effect directly the reverse of that which was produced by the East India Com- pany's monopoly of tea, or by Lord Essex's monopoly of sweet wines. Thus, then, stands the case. It is good that authors should be mTiU nprat ^ ; and the 10 least exceptionable way of .remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil ; but the evil ought not to last a day longer than is necessary for the purpose of securing the good. 15 Now, I will not affirm, that the existing law is per- fect, that it exactly hits the point at which the mo- nopoly ought to cease ; but this I confidently say, that the existing law is very much nearer that point than the law proposed by my honorable and 20 learned friend. For consider this ;(the evil effects of the monopoly are proportioned to the length of its duration. But the good effects for the sake of which we bear the evil effects are by no means propor- tioned to the length of its duration. A monopoly of 25 sixty years produces twice as much evil as a monopoly of thirty years, and thrice as much evil as a mo- nopoly of twenty years. But it is by no means the fact that a posthumous monopoly of sixty years gives to an author thrice as much pleasure and thrice as strong a 30 motive as a posthumous monopoly of twenty years. On the contrary, the difference is so small as to be COPYRIGHT. 189 hardly perceptible. We all know how faintly we are affected by the prospect of very distant advantages, even when they are advantages which we may reasonably hope that we shall ourselves enjoy. But 5 an advantage that is to be enjoyed more than half a century after we are dead, by somebody, we know not by whom, perhaps by somebody unborn, by somebody utterly unconnected with us, is really no motive at all to action. It is very probable, that in the course of 10 some generations, land in the unexplored and un- mapped heart of the Australasian continent will be very valuable. But there is none of us who would lay down five pounds for a whole province in the heart of the Australasian continent. We know, that neither 15 we, nor anybody for whom we care, will ever receive a farthing of rent from such a province. And a man is very little moved by the thought that in the year 2000 or 2100, somebody who claims through him will em- ploy more shepherds than Prince Esterhazy, 8 and will 20 have the finest house and gallery of pictures at Vic- toria or Sydney. Now, this is the sort of boon which my honorable and learned friend holds out to authors. Considered as a boon to them, it is a mere nullity ; but, considered as an impost on the public, it is no 25 nullity, but a veryjseripus and pmeious reality. I will take an example. Dr. Johnson died fifty-six years ago w If the law were what my honorable and learned friend wishes to make it, somebody would now have 8 This apparently refers to Prince Nikolaus von Esterhazy, 30 " a Hungarian magnate, noted as a patron of the arts and sciences." Born 1765. Died, 1833. H* 5 son was ambassador a.t London, 1815-18 and 18^0-38. Century Diet, 1 9 LORD MA CA ULA Y. the monopoly of Dr. Johnson's works. Who that somebody would be it is impossible to say ; but we may venture to guess. I guess, then, that it would have been some bookseller, who was the assign of another bookseller, who was the grandson of a third 5 bookseller, who had bought the copyright from Black Frank, the doctor's servant and residuary legatee, in 1785 or 1786. Now, would the knowledge that this copyright would exist in 1841 have been a source of gratification to Johnson ? Would it have stimulated 10 his exertions ? Would it have once drawn him out of his bed before noon ? Would it have once cheered him under a fit of the spleen ? Would it have in- duced him to give us one more allegory, one more life of a poet, one more imitation of Juvenal ? I firmly be- 15 lieve not. I firmly believe that a hundred years ago, when he was writing our debates for the Gentleman's Magazine, he would very much rather have had two- pence to buy a plate of shin of beef at a cook's shop underground. Considered as a reward to him, the differ- 20 ence between a twenty years' term and a sixty years' term of posthumous copyright would have been nothing or next to nothing. But is the difference nothing to us ? I can buy " Rasselas " for sixpence ; I might have had to give five shillings for it. I can buy the Dictionary, 25 the entire genuine Dictionary, for two guineas, per- haps for less ; I might have had to give five or six guineas for it. Do I grudge this to a man like Dr. Johnson ? Not at all. Show me that the prospect of this boon roused him to any vigorous effort, or sus- 30 tained his spirits under depressing circumstances, and I am quite willing to pay the price of such an object^ copy RIGHT. 191 heavy as that price is. Bat what I do complain of is that my circumstances are to be worse, and Johnson's none the better ; that I am to give five pounds for what to' him was not worth a farthing. 5 The principle of copyright is this. It is a tax on readers for the purposejDJ jiving_ .a ,_ b^punty^to^jvriter^ The tax is an exceedingly bad one ; it is a tax on one of the most innocent and most salutary of human pleas- ures ; and never let us forget, that a tax on innocent 10 pleasures is a premium on vicious pleasures. I admit, however, the necessity of giving a bounty to genius and learning. In order to give such a bounty, I willingly submit even to this severe and burdensome tax. Nay, I am ready to increase the tax, if it can be shown that 15 by so doing I should proportionally increase the bounty. My complaint is, that my honorable and learned friend doubles, triples, quadruples the tax, and makes scarcely any perceptible addition to the bounty. Why, Sir, what is the additional amount of taxation which would 20 have been levied on the public for Dr. Johnson's works alone, if my honorable and learned friend's bill had been the law of the land ? I have not data suffi- cient to form an opinion. But I am confident that the taxation on his Dictionary alone would have 25 amounted to many thousands of pounds. In reckon- ing the whole additional sum which the holders of his copyrights would have taken out of the pockets of the public during the last half century at twenty thousand pounds, I feel satisfied that I very greatly 30 underrate it. Now, I again say that I think it but fair that we should pay twenty thousand pounds in consideration of twenty thousand pounds' worth of 192 LORD MACAULAY. pleasure and encouragement received by Dr. Johnson. But I think it very hard that we should pay twenty thousand pounds for what he would not have valued at five shillings. My honorable and learned friend dwells on the 5 claims of the posterity of great writers. Undoubtedly, Sir, it would be very pleasing to see a descendant of Shakespeare living in opulence on the fruits of his great ancestor's genius. A house maintained in splendor by such a patrimony would be a more 10 interesting and striking object than Blenheim is to us, or than Strathfieldsaye will be to our children. But, unhappily, it is scarcely possible that, under any system, such a thing can come to pass. My honor- able and learned friend does not propose that copy- 15 right shall descend to the eldest son, or shall be bound up by irrevocable entail. It is to be merely personal property. It is therefore highly improbable that it will descend during sixty years or half that term from parent to child. The chance is that more 20 people than one will have an interest in it. They will in all probability sell it and divide the proceeds. The price which a bookseller will give for it will bear no proportion to the sum which he will afterward draw from the public, if his speculation proves successful. 25 He will give little, if anything, more for a term of sixty years than for a term of thirty or five-and- twenty. The present value of a distant advantage is always small ; but when there is great room to doubt whether a distant advantage will be any advantage at 30 all, the present value sinks to almost nothing. Such is the inconstancy of the public taste that no sensible COPy RIGHT. 193 man will venture to pronounce, with confidence, what the sale of any book published in our days will be in the years between 1890 and 1900. The whole fashion of thinking and writing has often undergone a change 5 in a much shorter period than that to which my honorable and learned friend would extend posthu- mous copyright. What would have been considered the best literary property in the earlier part of Charles the Second's reign ? I imagine Cowley's poems. 10 Overleap sixty years, and you are in the generation of which Pope asked, " Who now reads Cowley ? " What works were ever expected with more impatience by the public than those of Lord Bolingbroke, which appeared, I think, in 1754. In 1814, no bookseller 15 would have thanked you for the copyright of them all, if you had offered it to him for nothing. What would Paternoster Row give now for the copyright of Hayley's " Triumphs of Temper," 9 so much admired 9 Born 1745. Died 1820. " Hay ley made more than one 20 attempt to succeed as a dramatic author, but first won fame by his poetical * Essays on Painting, History, and Epic Poetry ' and by his poem the ' Triumphs of Temper/ The success of these poems was partly attributable to the general dearth of poetic talent at the time, but they had also certain external qualities fitted to secure 25 for them at least a temporary popularity ; and his notes to his poetical essays also displayed very extensive reading, and exerted considerable influence in directing attention in England to the literature of Italy and Spain. On the death of Warton, Hayley was offered the laureateship, but declined it. The estimation in 30 which he was held, even during his lifetime, depended perhaps more upon his acquirements and widely cultivated tastes and his position in society than on his achievements in literature." Ency. Brit. 194 LORD MACAULAY. within the memory of many people still living ? I say, therefore, that, from the very nature of literary property, it will almost always pass from an author's family ; and I say, that the price given for it to the family will bear a very small proportion to the tax 5 which the purchaser, if his speculation turns out well, will in the course of a long series of years levy on the public. If, Sir, I wished to find a strong and perfect illustra- tion of the effects which I anticipate from long copy- 10 right, I should select, my honorable and learned friend will be surprised, I should select the case of Milton's granddaughter. As often as this bill has been under discussion, the fate of Milton's granddaughter has been brought forward by the advocates of monopoly. 15 My honorable and learned friend has repeatedly told the story with great eloquence and effect. He has dilated on the sufferings, on the abject poverty of this ill-fated woman, the last of an illustrious race. He tells us that, in the extremity of her distress, Garrick 20 gave her a benefit, that Johnson wrote a prologue, and that the public contributed some hundreds of pounds. Was it fit, he asks, that she should receive, in this eleemosynary form, a small portion of what was in truth a debt? Why, he asks, instead of obtaining a 25 pittance from charity, did she not live in comfort and luxury on the proceeds of the sale of her ancestor's works ? But, Sir, will my honorable and learned friend tell me that this event, which he has so often and so pathetically described, was caused by the short- 30 ness of the term of copyright ? Why, at that time, the duration of copyright was longer than even he, at COpy RIGHT. 195 present, proposes to make it. The monopoly lasted not sixty years, but forever. At the time at which Milton's granddaughter asked charity, Milton's works were the exclusive property of a bookseller. Within 5 a few months of the day on which the benefit was given at Garrick's theater, the holder of the copyright of "Paradise Lost" I think it was Tonson applied to the Court of Chancery for an injunction against a bookseller, who had published a cheap edition of the 10 great epic poem, and obtained the injunction. The representation of " Comus " was, if I remember rightly, in 1750 ; the injunction in 1752. Here, then, is a perfect illustration of the effect of 'long copyright. Milton's works are the property of a single publisher. 15 Everybody whTwants them must buy them at Ton- son's shop, and at Tonson's price. Whoever attempts to undersell Tonson is harassed with legal proceedings. Thousands who would gladly possess a copy of " Para- dise Lost " must forego that great enjoyment. And 20 what, in the meantime, is the situation of the only person for whom we can suppose that the author, protected at such a cost to the public, was at all interested ? She is reduced to utter destitution. Milton's works are under a monopoly. Milton's 25 granddaughter is starving. The reader is pillaged ; but the writer's family is not enriched. Society is taxed doubly. It has to give an exorbitant price for the poems ; and it has at the same time to give alms to the only surviving descendant of the poet. 30 But this is not all. I think it right, Sir, to call the attention of the House to an evil, which is perhaps more to be apprehended when an author's copyright I9 6 LORD MACAULAY. remains in the hands of his family, than when it is transferred to booksellers. I seriously fear that, if such a measure as this should be adopted, many valuable works will be either totally suppressed or grievously mutilated. I can prove that this danger is 5 not chimerical ; and I am quite certain that, if the danger be real, the safeguards which my honorable and learned friend has devised are altogether nugatory. That the danger is not chimerical may easily be shown. Most of us, I am sure, have known persons 10 who, very erroneously as I think, but from the best motives, would not choose to reprint Fielding's novels, or Gibbon's " History of the Decline and Fall of the Roman Empire." Some gentlemen may perhaps be of opinion, that it would be as well if " Tom Jones " and 15 Gibbon's History were never reprinted. I will not, then, dwell on these or similar cases. I will take cases respecting which it is not likely that there will be any difference of opinion here ; cases, too, in which the danger of which I now speak is not matter of 20 supposition, but matter of fact. Take Richardson's novels. Whatever I may, on the present occasion, think of my honorable and learned friend's judgment as a legislator, I must always respect his judgment as a critic. He will, I am sure, say that Richardson's 25 novels are among the most valuable, among the most original works in our language. No writings have done more to raise the fame of English genius in foreign countries. No writings are more deeply pathetic. No writings, those of Shakespeare excepted, 30 show more profound knowledge of the human heart. As to their moral tendency, I can cite the COPYRIGHT. 197 most respectable testimony. Dr. Johnson describes Richardson as one who had taught the passions to move at the command of virtue. My dear and honored friend, Mr. Wilberforce, in his celebrated 5 religious treatise, when speaking of the unchristian tendency of the fashionable novels of the eighteenth century, distinctly excepts Richardson from the cen- sure. Another excellent person whom I can never mention without respect and kindness, Mrs. Hannah 10 More, often declared in conversation, and has declared in one of her published poems, that she first learned from the writings of Richardson those principles of piety by which her life was guided. I may safely say that books celebrated as works of art through the 15 whole civilized world, and praised for their moral tendency by Dr. Johnson, by Mr. Wilberforce, by Mrs. Hannah More, ought not to be suppressed. Sir, it is my firm belief, that if the law had been what my honorable andjearned friend proposes to make it, they 20 would haveSeen suppre^*^ T~remember Richard- son's grandson well ; he was a clergyman in the city of London ; he was a most upright and excellent man ; but he had conceived a strong prejudice against works of fiction. He thought all novel-reading not 25 only frivolous but sinful. He said, this I state on the authority of one of his clerical brethren who is now a bishop, he said that he had never thought it right to read one of his grandfather's books. Suppose, Sir, that the law had been what my honorable and learned 30 friend would make it. Suppose that the copyright of Richardson's novels had descended, as might well have been the case, to this gentleman. I firmly* believe, igS LORD MACAU LAY. that he would have thought it sinful to give them a wide circulation. I firmly believe, that he would not for a hundred thousand pounds have deliberately done what he thought sinful. He would not have reprinted them. And what protection does my honorable and 5 learned friend give to Uie^4)iihli^ia^uch a case ? Why, Sir, what he proposes is this : if a book is not reprinted during five years, any person who wishes to reprint it may give notice in the London Gazette; the advertisement must be repeated three times; a year 10 must elapse ; and then, if the proprietor of the copy- right does not put forth a new edition, he loses his exclusive privilege. Now, what protection is this to the public ? What is a new edition ? Does the law define the number of copies that makes an edition ? 15 Does it limit the price of a copy ? Are twelve copies on large paper, charged at thirty guineas each, an edition ? It has been usual, when monopolies have been granted, to prescribe numbers and to limit prices. But I do not find that my honorable and learned friend 20 proposes to do so in the present case. And, without some such provision, the security which he offers is manifestly illusory. It is my conviction that, under such a system as that which he recommends to us, a copy of " Clarissa " would have been as rare as an 25 Aldus or a Caxton. I will give another instance. One of the most in- structive, interesting, and delightful books in our lan- guage is Boswell's " Life of Johnson." Now it is well known that Boswell's eldest son considered this book, 30 considered the whole relation of Boswell to Johnson, as a blot in the escutcheon of the family. He thought, COPYRIGHT. 199 not perhaps altogether without reason, that his father had exhibited himself in a ludicrous and degrading light. And thus he became so sore and irritable that at last he could not bear to hear the " Life of Johnson " 5 mentioned. Suppose that the law had been what my honorable and learned friend wishes to make it. Sup- pose that the copyright of Boswell's " Life of Johnson " had belonged, as it well might, during sixty years, to Boswell's eldest son. What would have been the con- 10 sequence ? An unadulterated copy of the finest bio- graphical work in the world would have been as scarce as the first edition of Camden's " Britannia." These are strong cases. I have shown you that, if the law had been what you are_nQw going to make it, 15 the finest prose 'work of ^fiotipii^in^Jhe language, the finest biographical work in the language, would very probably have been suppressed. But I have stated my case weakly. The books which I have mentioned are singularly inoffensive books ; books not touching on 20 any of those questions which drive even wise men be- yond the bounds of wisdom. | There are books of a very different kind, books which are the rallying points of great political and religious parties. What is likely to happen if the copyright of one of these books should 25 by descent or transfer come into the possession of some hostile zealot ? I will take a single instance. It is only fifty years since John Wesley died ; and all his works, if the law had been what my honorable and learned friend wishes to make it, would now have been 30 the property of some person or other. The sect founded by Wesley is the most numerous, the wealthi- est, the most powerful, the most jealous of sects. In 200 LORD MACAU LAY. every parliamentary election it is a matter of the greatest importance to obtain the support of the Wesleyan Methodists. Their numerical strength is reckoned by hundreds of thousands. They hold the memory of their founder in the greatest reverence ; 5 and not without reason, for he was unquestionably a great and a good man. To his authority they con- stantly appeal. His works are in their eyes of the highest value. His doctrinal writings they regard as containing the best system of theology ever deduced 10 from Scripture. His journals, interesting even to the common reader, are peculiarly interesting to the Methodist ; for they contain the whole history of that singular polity which, weak and despised in its begin- ning, is now, after the lapse of a century, so strong, 15 so flourishing, and so formidable. The hymns to which he gave his imprimatur are a most important part of the public worship of his followers. Now, suppose that the copyright of these works should belong to some person who holds the memory of Wes- 20 ley and the doctrines and discipline of the Methodists in abhorrence. There are many such persons. The Ecclesiastical Courts are at this very time sitting on the case of a clergyman of the Established Church who refused Christian burial to a child baptized by a 25 Methodist preacher. I took up the other day a work which is considered as among the most respectable organs of a large and growing party in the Church of England, and there I saw John Wesley designated as a foresworn priest. Suppose that the works of 30 Wesley were suppressed. Why, Sir, such a grievance would be enough to shake the foundations of Govern- COPYRIGHT. 201 ment. Let gentlemen who are attached to the Church reflect for a moment what their feelings would be if the Book of Common Prayer were not to be reprinted for thirty or forty years, if the price of a Book of 5 Common Prayer were run up to five or ten guineas. And then let them determine whether they will pass a law under which it is possible, under which' it is probable, that so intolerable a wrong may be done to some sect consisting perhaps of half a million of 10 persons. / ^\ am so sensible, Sir, of the kindness with which the House has listened to me, that I will not detain you longer. I will only say this, that if the measure before us should pass, and should produce one-tenth 15 part of the evil which it is calculated to produce, and which I fully expect it to produce, there will soon be a remedy, though of a very objectionable kind. Just as the absurd acts which prohibited the sale of game were virtually repealed by the poacher, just as many 20 absurd revenue acts have been virtually repealed by the smuggler, so will this law be virtually repealed by piratical booksellers. At present the holder of copy- right has the public feeling on his side. Those who invade copyright are regarded as knaves who take the 25 bread out of the mouths of deserving men. Every- body is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesmen of good repute will have anything to do with such disgraceful transactions. Pass this law ; 30 and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable_jnonopoly. Great masses of 202 LORD MACAU LAY. capital will be constantly employed in the violation OL the law. Every art will be employed to evade legal pursuit ; and the whole nation will be in the plot. On which side indeed should the public sympathy be when the question is whether some book as popular as 5 " Robinson Crusoe/' or the " Pilgrim's Progress," shall be in every cottage, or whether it shall be confined to the libraries of the rich for the advantage of the great- grandson of a bookseller who, a hundred years before, drove a hard bargain for the copyright with the 10 author when in great distress ? Remember too that, when once it ceases to be considered as wrong and discreditable to 'invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome 15 copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create. And you will find that, in attempting to impose unreasonable restraints on the reprinting of the works of the dead, you have, to a great extent, 20 annulled those restraints which now prevent men from pillaging and defrauding the living. If I saw, Sir, any probability that this bill could be so amended in the Committee that my objections might be removed, I would not divide the House in this stage. 10 But I am 25 10 " Admonished, but not deterred, by Sergeant Talfourd's re- verse, Lord Mahon next year took up the cause of his brother authors, and introduced a bill in which he proposed to carry out the objectionable principle, but to carry it less far than his prede- cessor. Lord Mahon was for giving protection for five-and- 30 twenty years, reckoned from the date of death ; and his scheme was regarded with favor, until Macaulay came forward with a COPYRIGHT. 203 so fully convinced that no alteration which would not seem insupportable to my honorable and learned friend, could render his measure supportable to me, that I must move, though with regret, that this bill be 5 read a second time this day six months. counter-scheme, giving protection for forty-two years, reckoned from the date of publication. He unfolded his plan in a speech, terse, elegant, and vigorous ; as amusing as an essay of Elia, and as convincing as a proof of Euclid. When he resumed his seat, 10 Sir Robert Peel walked across the floor, and assured him that the last twenty minutes had radically altered his views on the law of copyright. One member after another confessed to an entire change of mind; and, on a question that had nothing to do with party, each change of mind brought a vote with it. The bill was :$ remodeled on the principle of calculating the duration of copyright from the date of publication, and the term of forty -two years was adopted by a large majority." Life and Letters of Lord Macaulay, vol. ii. pp. 121-123. This second speech is printed pp. 209-216, vol. viii., Mac- ao aulay's Works. Longmans, Green & Co., 1875. OF- E OF [UNIVERSITY THIS BOOK IS DUE ON THE LAST DATE STAMPED BELOW AN INITIAL FINE OF 25 CENTS WILL BE ASSESSED FOR FAILURE TO RETURN THIS BOOK ON THE DATE DUE. THE PENALTY WILL INCREASE TO 5O CENTS ON THE FOURTH DAY -AND TO $1.OO ON THE SEVENTH DAY OVERDUE. RtUJ'U L_L> JUN 1 1 1960 1939 FEB 10 1942;E 30 1942 E THE UNIVERSITY OF CALIFORNIA LIBRARY