« PoprzedniaDalej »
And scanty hairs, and shaking hands, and head more frightful then! Broken hearts and
crime was that they were unsuccessful; In his withered bosom."
rupted into evil; cheerful souls turned into The punishment of fourteen years' trans- bitterness; men of rank and education subportation for sedition was out of all propor-jected to a slavery to the rude, the rough, tion to the offence. We are told, however, the coarse, and the ignorant drivers of a conby Lord Brougham, that Braxfield only pro- vict settlement. With the evil association nounced the sentence which the law allowed of the unfortunate with the wicked, the polihim,-a statement made in contradiction to tical offender joined with the murderer or the notorious fact that that sentence has thief, what could be expected but that the been condemned as contrary to law by miserable creatures should become more emevery Judge who has had occasion to review bittered and exasperated ? “It has been said, it. It was law made for the occasion, and adds Cockburn, " that after these trials there made by Braxfield, in whose hands the rest was no more sedition. The same thing of the Judges were as potter's clay. It is might be said though they had been tried by unnecessary here to recite legal opinions. the boot, and punished by fire. Jeffreys and The whole question has been already discussed Kirk put down sedition for the day by their in this Journal by a learned Judge now upon bloody assizes, but our exhibitions of judicial the Bench, who had as large a practice as vigour, instead of eradicating the seditious any contemporary Lawyer in the Criminal propensity, prolonged its inward vitality. Courts. His opinion (ante, vol. iv. p. 315) These trials sunk deep, not merely into the we reprint. "It was not attempted to be popular mind, but into the minds of all men justified either by the direct sanction of any who thought. It was by these proceedings, statute enaćting that punishment, or by re- more than by any other wrong, that the ference to any precedent authorizing its in- spirit of discontent justified itself
throughout fliction, but was rested on what was termed the rest of that age.”—Memorials, p. 102.) the inherent power, the native vigour of the Why has the country since lost all its Court. The principles evolved would lead, dangerous classes ? and how have thousands if followed out, to absolute despotism; and of meetings been held in our unguarded indeed the whole tone and style of the chap- cities without danger to the commonwealth ? ter (speaking of Baron Hume's work, who How, amid the privations that periodically adopts Braxfield's law) is more suited to the occur, is there no political discontent, and no jurisprudence of Russia than of Scotland.” | hatred of class against class ? Is it not that In truth, the law laid down at these trials this state of security has only supervened, was made then, or if it had any authority when statesmen gave up the notion that they from precedent, it could only be obtained ought to extirpate sedition by the strong from times when the boots and the thumb- hand? They were determined to curb the screw were instruments of justice. Lord excesses of the press, and the press grew Brougham knew all this, and suppressed it; wilder and more licentious. Full freedom or, if he did not know it, he brings to the of speech, association, and locomotion, are discussion an ignorance of the subject not now the rule, and the result is, that every creditable to a Judge of the Tribunal of Ap- secret society, every scurrilous print, every peal.
doctrine inconsistent with the social rights It is, moreover, admitted, that in England and the religious feelings of the community sedition was never punished with transpor- have disappeared, or are promulgated in tation, and this is glossed over by telling us darkness or among the tombs. Every man that imprisonment was as hard to bear at is allowed to air his hobby and pet scheme that period, and that transportation was for the perfectibility of mankind. The rather an advantage. “At that period,” orator gets rid of his speech, and the theorist says Cockburn, (Memorials, p. 100,"it im- of his speculations, and society, if none the plied a frightful voyage of many months, wiser, has at least had a subject for amusegreat wretchedness in the new colony, an ment. The chaff is blown from the wheat, almost complete extinction of all communi- and in the end public opinion either laughs cation with home, and such difficulty in re- at the folly, or adopts and acts upon a new turning, that a man transported was consi- truth. Principles, races, nationalities, condered as a man never to be seen again. stitutions, and theories, are the powers, the Nevertheless, transportation for a first of pretences, or the bugbears of this day. Yet fence was the doom of every one of these thrones survive, and the world is grateful to, prisoners.” The convict ship and the convict and has ceased to persecute, the men who settlement, frightful at any time, were still forget private interest for public duty; who
busy themselves with the complexity of our Crown. Even Scott can speak of it as a social position, and undertake the duty of thing of novelty, that he met Jeffrey at dindisentangling its embarrassments.
ner. It is said that in England men suffered In those dreary days of terror the position as much, and Cockburn is erroneously of an advocate of Whig politics was gloomy charged with representing Scotland as alone enough. When we think of what has been, subjected to the reign of terror. " It may be and now look through the Parliament House true that “Mr. Brougham," as is carefully at what is, it is almost impossible to believe announced, was excluded from the honours that such a change could have taken place of a silk gown, because he had done duty to within the compass of half a century. Young his unfortunate client against the persecutions men who professed liberal principles in those of the King. But it cannot at the same time times, which now would be considered some be forgotten, that such exclusion redounded what antiquated, “were treated as the causes to the glory and honour,—nay, even to the and the shields of the popular delusions; and wordly prosperity of "Mr. Brougham,” belonging mostly to the bar, they were con- when he led the Northern Circuit in a stuff stantly and insolently reminded that the case gown, many silks being obliged to keep their of their brother, Thomas Muir, transported talents in abeyance. No one wishes to stand for sedition, was intended for their special between a good man's merit and his reedification.”
ward; but why obtrude sacrifices that are
not forgotten, upon the attention of a world, “ The progress of no young man could be more which wishes to do tardy homage to the apparently hopeless than of him who, with the principles of freedom, in the persons of men known and fatal taint of a taste for popular poli- who suffered upon a 'more obscure theatre, tics, entered our bar. But they were generally and who were not buoyed up by the acclawell warned. If not overlooked from their insignificance, a written test was for some years pre- mations of sympathizing multitudes ? sented to them, and a refusal to subscribe it set a
“ The state of politics in this country," black mark upon him who refused. I have heard says Jeffrey, (vol. i. p. 98,)“ and the excesGeorge Cranstoun say that the test was put to sive violence and avowed animosities of the him, and by a celebrated Professor of Law acting parties in power, which have now extended for the Tory party. It was rejected, and Cran, to every department in life, and come to stoun found it convenient to leave the bar, and affect every profession, make the prospect spend some time chiefly in Ireland, as an officer ia a regiment of fencible cavalry, commanded by less encouraging to one who abhors its inhis friend the Earl of Ancrum.” —(Memorials, tolerance, and is at no pains to conceal his
contempt of its influence.
are some moments when I think I could sell Brougham denies that the test was put to myself to the Minister or to the Devil, in Cranstoun. Cockburn says that Cranstoun order to get above these necessities. At told him so, and therefore when both con other times I think of undertaking pilgrimcur, the one in affirming the fact, and the ages and seeking adventures, to give a little other in stating that he told the tale as it interest and diversity to the dull life that was told to him, we must be pardoned if seems to await me, and when I am most we cannot adopt the suggestion of Lord reasonable, I meditate upon my chances of Brougham,—"That the written test is an success at the English Bar or in India, to invention of some party zealot who had im- both of which resources I have been exhortposed on Lord Cockburn.” In our day, ed and recommended by some of my friends." when every man is free to express his opi- And even the philosophic Horner, whose nion as he pleases, when public opinion awes political creed was never offensively urged, senates with a moral supremacy which be- was obliged to betake himself to the South. longs to no other power; when personal " I become daily more averse,” he says, “ to independence does not bring in its train per- the practice of the Scotch Court. There are secution, loss of friends, exclusion from of certain circumstances positively disagreeafice, and every impediment in the way of an ble, both in the manner in which business is honourable ambition, it is difficult to realize conducted, and in the manner in which sucthe state of misery and subjection in which cess is attained, and these disadvantages are the men of liberal minds at the Scottish Bar rendered the less tolerable after comparison were held in the days of Braxfield. No pub- with the courts of the South.” (Memoirs, lic opinion, no press, no power derived from vol. i. p. 173.) And he afterwards detheir number, as at the Bar of England; but scribes the mode in which official dignity at a small coterie, strong only in their convic- Edinburgh is to be obtained, (p. 353,) as "a tions, and conscious of their talents. Herd- long service to party cabals, party prejudiing apart, communication with them was ces, and party disappointments.” thought inconsistent with allegiance to the Yet in the hour of trial these men were
found wanting. Cranstoun and Jeffrey and and therefore when the hour came to make Thomson were put to the test at an early a sacrifice for principle, the victims were period of their professional career, in refer- not forthcoming. All fled except Moncreiff, ence to the motion for the expulsion of who, faithful amid the faithless, held the Henry Erskine from the office of Dean of candles up for llenry Erskine at the meetFaculty, for presiding at a meeting to peti- ing, and was at his post in the Faculty to tion against the Seditious Meetings Bill. record his vote for his friend, with that This man was the noblest Roman of them high moral courage, and conscientious sense all; perhaps the most accomplished advo- of duty, which formed so prominent a chacate that the Bar of Scotland ever knew; racteristic of the man. Cockburn takes ocbeloved personally, and consistent in his casion so frequently, and with such detail, political career. The meeting he attended to excuse an act which may be forgotten, was for the constitutional purpose of peti- but not defended, that one can almost think tioning Parliament against a measure that he himself would, had he been at the Bar, in our day would provoke a rebellion. It have also proved a coward. was conducted with sobriety and decorum. Yet, after all, the Whig lawyers of the The language used was spoken with the Parliament House of that day alone prebated breath of men who had the law of se- served any apparent conflict with the ruling dition expounded to them in such terms as domination. They had, without experience to reduce freedom of speech almost to a and without position, to steer a previously name. Yet to the Faculty of Advocates it untried life-boat in the darkest night that was sufficient to justify a motion for expul- had ever spread despondency and terror sion made by Charles Hope. And the over the hearts of men. All the Scottish motion was carried; and Henry Erskine, to representation was in the hands of Dundas; the disgrace of the body whom he honoured, the town Councils were foci of corruption, went out of office, and a Dundas reigned in intolerance, and ignorance ; the laws were his stead. Horner saw Erskine after his oppressive, and oppressively administered ; retirement from the Bar, which took place the punishments were sanguinary; and in 1807. “ He is living," says Horner in liberty of thought, even in the peaceful do1812," among the plantations he has been mains of speculative philosophy, or in the making for the last twenty years, in the quiet scenes of historical investigation, were midst of all the bustle of business. He has denied to the genius of Dugald Steward the banks of the River Almond for about and Adam Ferguson. When young men four miles. He told me he had thrown arose, who dared to push inquiry into the away the law like a dirty clout, and had for- theory of government, astonishment was gotten it altogether. It is delightful to see succeeded by half-belief
, and that by indigthe same high spirits which made him such a nation, and that again by horror. It was in favourite in the world, while he was in the vain! Jeffrey and his coadjutors held on career of ambition and prosperity, still at- their own way; bastion, and fort, and battending him after all the disappointments tlement fell; and after every position was that would have chagrined another man to surrendered, and every relic of barbarous death ; such a temper is worth all that the intolerance swept away, the British sun for most successful ambition could ever bestow." the last time, having shone so long in the --(Horner, vol. ii. p. 122.)
meridian, culminated to his decline. The When this man was put upon his trial, repeal of the Test Act; the reform of the and the young Whig lawyers were subjected representation; the repeal of the Corn-laws; to the experimentum crucis, the whole of the opening of the universities to dissenters; them but Moncreiff dishonourably took to every step which has been gained from the flight. Cranstoun, and Jeffrey, and Thom- losing side of antiquated folly, has been son, if they did not vote against him, at made the occasion on which the British sun least deserted their standard, and did not has set for ever. On each occasion we revote at all. For this they are excused, be- nounced irrevocably our place among the cause it appears that every young man in nations, and on the morning after the sad those days came to the bar with a patron, announcement, the glorious orb came forth who kept in his hands their conscience, and from Pluto's dark realms, and our country the intercourse between whom and them shines resplendent under the sun of a regenwas like that of a man who is dancing upon erated policy. wires. Jeffrey's patron was Lord Glenlee. All this violence was done to the princiThomson had for a patron Lord Henderland, ples of constitutional freedom, upon the imand Cranstoun the Duke of Buccleuch. To pulse of a senseless alarm. The whole of have voted in favour of Henry Erskine, the upper and middle classes of both king. would have offended these powerful persons, Idoms, the possessors of the wealth as the holders of the real power, repudiated the troublesome, insects of the hour. doctrines of French republicanism. A few venture to affirm that not one in a hundred wild enthusiasts there were, scattered amongst us participates in the triumph' of throughout the country, whose doctrines did the Revolution Society." harm to freedom by confounding it with the If so, a dominant party might have safely licence which reigned in Paris. Had they left the inconsiderate reformers to the natubeen let alone, their enthusiasm would have ral result of contempt and time. In the passed away from want of opposition to sti- progress of a faction, the crisis inevitably mulate it. The missiles of political strife returns when the good and the evil are by speech and by the press, may, no doubt, separated - the enduring and perishable be as mischievous, though less material than materials are resolved into their kindred elethe sticks and stones of more primitive ments; that which is malignant or foolish commonwealths ; but amid the horrors or impracticable becomes embodied in a which the atrocities of the French Revolu- small fanatical horde, whose outeries if left tion had excited, the government of this unnoticed gradually subside, and having no country might have been contemptuous with audience to applaud them, the evil that safety. They forgot, however, that “the they produce only reacts upon themselves. right too rigid hardens into wrong." All That which is really patriotic and religious hope or even desire for parliamentary reform having shaken off the baser material, graduhad, for the time, passed away. Toryism ally leavens the whole community, and forms rode triumphant on the wave; and the an enduring and natural alliance with the most diluted liberality of sentiment never fortunes of the country. We can now hear fared so badly as when Thomas Paine prov- and laugh at the dreams of well-meaning ed that the rights of man lay in anarchy and Republican theorists. We do not need a atheism, and Gerald was declaiming against prosecution to meet a prophecy that society free states, patrician senates, and constitu- is doomed, and that nothing can stay the tional kings. Burke was anxious enough to spreading corruption, except the realization magnify the terrors upon which he justified of some great idea dimly shadowed forth, his apostasy. Yet, in the midst of the strife, the universal recognition of some high prinhe was not so much the victim of his excited ciple, or the elevation to power of some imimagination as not to feel contempt for the possible seers. few enthusiasts who, throughout the country, But men in that day took the measure of endeavoured to excite a feeling of sympathy their opponents' power from their own alarm. for liberality of opinion. In his Reflections, The capricious ebullitions of popular sentihe treats the “society for constitutional in- ment were extinguished by the heavy arm formation" as a charitable club; and the of the law, stretched for the occasion by “revolution society" as a gathering of dis- alarmist judges. In every instance in Scotsenters, who, if they had not been noticed land (it was not so in England), conviction by the French assembly, would never have followed upon prosecution, and the freedom emerged from obloquy; and in that other and hopes of the nation only recovered celebrated passage, he thus disposes of the after years of arrogant and insulting rule. new sect, whose voice it was thought would The ultima ratio in the controversy was at be sufficient to overthrow the institutions of once made the sword of authority or the a thousand years.
force of resistance. The system of repres“The vanity, restlessness, petulance, and sion was continued at a later period in the spirit of intrigue, of several petty cabals, who Six Acts, and the Gagging Bills of Castleattempt to hide their total want of confidence reagh-fettering the press with heavy in bustle and noise, and puffing and mutual stamps and onerous securities; introducing qoutation of each other, makes you imagine the punishment of banishment for libels; that our contemptuous neglect of their abili- empowering the magistracy to disarm the ties is a general mark of acquiescence in their people, and subjecting the homes of freemen opinions. No such thing, I assure you. even to nightly visitations ; restricting the Because half-a-dozen grasshoppers under a exercise of the right of meeting to petition, fern make the field ring with their importu- and contracting to an alarming extent that nate chink, whilst thousands of great cattle personal liberty which Englishmen are edurepose beneath the shadow of the British cated to consider as their birthright. The oak, shew the cud, and are silent-pray, do bonds that bind society together snap asunnot imagine that those who make the noise der in the presence of such oppression. Eduare the only inhabitants of the field ; that of cation, religion, hope, fear, become mere course they are many in number; or that, words. Men are transformed into wild after all, they are other than the little, shri- beasts, and like wild beasts stand at bay at velled, meagre, hopping, though loud and last, and rend their pursuers.
But we leave with pleasure the irritating ing thought. Men were unwilling to see history of these wretched times, to say a the followers of their ancestor transferred few words of Jeffrey and Horner, and the to other families for protection.” In mod. Edinburgh of their day.
ern days the advocate works for a more The modern theory of advocaoy, which vulgar reward, and many things contribute reduces counsel to the place of hired bra- to induce habits of mind not consistent voes, was never exemplified in the practice with the highest theory of his craft ;-overof Jeffrey. He did not think it necessary zeal,—the equivocal" character of cases, in the defence of his client, to prostitute -the necessity of speaking so as to satisfy his talents by an utter indifference to right, not the Court but the client,—the lowering wrong, or conscience. He could bear the essential to carry conviction to the commonresentment of a hostile Court, and the ven- place minds of juries, and the claptrap regeance of an exasperated government, but quisite to rouse their prejudices or their pashe never sacrificed his personal honour or sions. Then, too, while a divine has before him the dignity of his profession. He was no one undeviating argument, an advocate is doubt often obliged to defend the guilty, obliged within an hour to resign all claim to and to argue against his convictions, but he consistency, and to reply in another case bedid not confound his representative with fore the same audience, to the views he had his personal character, and in the eager pur- just eloquently enforced; so that while the suit of victory forget that there were higher power of telling an effective statement is interests at stake. There is truth in the attained, truth and proportion, the great severe remark of Junius, that “the indis- elements in all imitation or exposition of criminate defence of right and wrong con- nature, are seldom reached. The one thing tracts the understanding whilst it hardens sought for is victory; and this would often the heart.” It obliterates much of the finer pass to the other side, were the whole, sensibilities, and certainly is the worst or the essential properties which convey the school in which to acquire the habit of phi- whole, truth disclosed. All this drove losophical impartiality. Right and wrong Jeremy Bentham from the profession. It are in few cases so clearly cut as to entitle troubled the scrupulous mind of Horner; a man, on his own responsibility, to pro- and has often lost to the bar conscientious nounce dogmatically his opinion; and this men, who took the picture of it from its is not the purpose for which the trained gloomy side. skill of an advocate is sought. He is put As an expositor of the law, time, which as a legal bloodhound upon the scent, and levels all reputations, will not place Jeffrey hounded on to the pursuit with no other on the pinnacle. His occupations were too object and no higher motives than to pull various for excellence in a science so techdown the prey. The merits of the case, nical and engrossing. The difficulty of except in so far as they may effect its man- combining accurate with general knowledge, agement, must be matter of indifference. is illustrated in the case of one who posHis first duty, if they are against him, is to sessed a versatility of intellect remarkable set aside the truth,--to gloss over the facts in an age of great men. His judgments which he cannot controvert, to bring into are filled with fanciful and ingenious illusprominence any which his ingenuity may tor- trations which imperfectly supply the want ture into a reply. Of course, a training like of profundity of knowledge; and though this, unless carefully guarded by conscience always suggestive and often striking, leave ind liberality of mind, produces at the best upon the mind the painful impression of a spirit of reckless partisanship, under the superficiality. He was no exception to the influence of which moral sensibility is lost. rule that men must be contented to forego in theory, the profession which vindi- the knowledge of many things, to remain cates injured innocence, and interposes be entirely ignorant of some things, and imtween the oppressor and his victim, is one perfectly instructed in others. It is the of the noblest that can occupy the attention only alternative to a superficial smattering of men. Its Roman history, too, has a lofty in all things. It is the necessary condition origin. The patron and the client in old to unrivalled pre-eminence in any science, Rome were persons who stood to each other and particularly in that of law, which can in the kindly position of a protector giving only be mastered and retained by the undiadvice in return for service and gratitude. vided devotion to its pursuit of the most "The dread of shame," says Tacitus, " was laborious lifetime. Yet the vigour of his not less powerful than the ambition which intellect was such, that he threw illuminaaimed at honours. To sink into the humili- tion over the direst cases of feudal law, ating rank of a client, instead of maintain- although few of his judgments retain a ing the dignity of a patron, was a degrad-place as masterpieces of judicial wisdom.