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And scanty hairs, and shaking hands, and head
As palsied as his heart was hard, he counselled,
Caballed, and put men's lives out, as if life
Were no more than the feelings long extinguished

In his withered bosom."

more frightful then! Broken hearts and fortunes; high spirits still untamed, whose crime was that they were unsuccessful; minds in ruin and decay; good natures corrupted 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 enacting 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; or, if he did not know it, he brings to the discussion an ignorance of the subject not creditable to a Judge of the Tribunal of Appeal.

wilder and more licentious. Full freedom of speech, association, and locomotion, are now the rule, and the result is, that every secret society, every scurrilous print, every 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 and the shields of the popular delusions; and belonging mostly to the bar, they were constantly and insolently reminded that the case of their brother, Thomas Muir, transported for sedition, was intended for their special edification."

to the glory and honour,-nay, even to the wordly prosperity of "Mr. Brougham," when he led the Northern Circuit in a stuff gown, many silks being obliged to keep their talents in abeyance. No one wishes to stand between a good man's merit and his reward; but why obtrude sacrifices that are not forgotten, upon the attention of a world, which wishes to do tardy homage to the principles of freedom, in the persons of men who suffered upon a more obscure theatre, and who were not buoyed up by the acclamations of sympathizing multitudes?

"The progress of no young man could be more apparently hopeless than of him who, with the known and fatal taint of a taste for popular politics, entered our bar. But they were generally well warned. If not overlooked from their insig nificance, a written test was for some years presented 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 exces George 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 less encouraging to one who abhors its inin a regiment of fencible cavalry, commanded by his friend the Earl of Ancrum."-(Memorials, tolerance, and is at no pains to conceal his p. 92.) contempt of its influence.

There

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 imposed on Lord Cockburn." In our day, when every man is free to express his opinion as he pleases, when public opinion awes senates with a moral supremacy which belongs to no other power; when personal independence does not bring in its train persecution, loss of friends, exclusion from of fice, and every impediment in the way of an honourable ambition, it is difficult to realize the state of misery and subjection in which the men of liberal minds at the Scottish Bar were held in the days of Braxfield. No public opinion, no press, no power derived from their number, as at the Bar of England; but a small coterie, strong only in their convictions, and conscious of their talents. Herding apart, communication with them was thought inconsistent with allegiance to the

both of which resources I have been exhorted and recommended by some of my friends." And even the philosophic Horner, whose political creed was never offensively urged, was obliged to betake himself to the South. "I become daily more averse," he says, “to the practice of the Scotch Court. There are certain circumstances positively disagreeable, both in the manner in which business is conducted, and in the manner in which success is attained, and these disadvantages are rendered the less tolerable after comparison with the courts of the South." (Memoirs, vol. i. p. 173.) And he afterwards describes the mode in which official dignity at Edinburgh is to be obtained, (p. 353,) as "a long service to party cabals, party prejudices, and party disappointments."

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 Henry 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. The language used was spoken with the bated breath of men who had the law of sedition expounded to them in such terms as to reduce freedom of speech almost to a name. Yet to the Faculty of Advocates it was sufficient to justify a motion for expulsion made by Charles Hope. And the motion was carried; and Henry Erskine, to the disgrace of the body whom he honoured, went out of office, and a Dundas reigned in his stead. Horner saw Erskine after his retirement from the Bar, which took place in 1807. "He is living," says Horner in 1812," among the plantations he has been making for the last twenty years, in the midst of all the bustle of business. He has the banks of the River Almond for about four miles. He told me he had thrown away the law like a dirty clout, and had forgotten it altogether. It is delightful to see the same high spirits which made him such a favourite in the world, while he was in the career of ambition and prosperity, still attending him after all the disappointments that would have chagrined another man to death; such a temper is worth all that the most successful ambition could ever bestow." --(Horner, vol. ii. p. 122.)

Yet, after all, the Whig lawyers of the Parliament House of that day alone preserved any apparent conflict with the ruling domination. They had, without experience and without position, to steer a previously untried life-boat in the darkest night that had ever spread despondency and terror over the hearts of men. All the Scottish representation was in the hands of Dundas; the town Councils were foci of corruption, intolerance, and ignorance; the laws were oppressive, and oppressively administered; the punishments were sanguinary; and liberty of thought, even in the peaceful domains of speculative philosophy, or in the quiet scenes of historical investigation, were denied to the genius of Dugald Steward and Adam Ferguson. When young men arose, who dared to push inquiry into the theory of government, astonishment was succeeded by half-belief, and that by indignation, and that again by horror. It was in vain! Jeffrey and his coadjutors held on their own way; bastion, and fort, and battlement fell; and after every position was surrendered, and every relic of barbarous intolerance swept away, the British sun for the last time, having shone so long in the meridian, culminated to his decline. The repeal of the Test Act; the reform of the representation; the repeal of the Corn-laws; the opening of the universities to dissenters; every step which has been gained from the losing side of antiquated folly, has been made the occasion on which the British sun has set for ever. On each occasion we renounced irrevocably our place among the nations; and on the morning after the sad announcement, the glorious orb came forth from Pluto's dark realms, and our country shines resplendent under the sun of a regenerated policy.

When this man was put upon his trial, and the young Whig lawyers were subjected to the experimentum crucis, the whole of them but Moncreiff dishonourably took to flight. Cranstoun, and Jeffrey, and Thomson, if they did not vote against him, at least deserted their standard, and did not vote at all. For this they are excused, because it appears that every young man in those days came to the bar with a patron, who kept in his hands their conscience, and the intercourse between whom and them was like that of a man who is dancing upon 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 kingwould have offended these powerful persons, I doms, the possessors of the wealth as the

holders of the real power, repudiated the doctrines of French republicanism. A few wild enthusiasts there were, scattered throughout the country, whose doctrines did harm to freedom by confounding it with the licence which reigned in Paris. Had they been let alone, their enthusiasm would have passed away from want of opposition to stimulate it. The missiles of political strife by speech and by the press, may, no doubt, be as mischievous, though less material than the sticks and stones of more primitive commonwealths; but amid the horrors which the atrocities of the French Revolution had excited, the government of this country might have been contemptuous with safety. They forgot, however, that "the right too rigid hardens into wrong." All hope or even desire for parliamentary reform had, for the time, passed away. Toryism rode triumphant on the wave; and the most diluted liberality of sentiment never fared so badly as when Thomas Paine proved that the rights of man lay in anarchy and atheism, and Gerald was declaiming against free states, patrician senates, and constitutional kings. Burke was anxious enough to magnify the terrors upon which he justified his apostasy. Yet, in the midst of the strife, he was not so much the victim of his excited imagination as not to feel contempt for the few enthusiasts who, throughout the country, endeavoured to excite a feeling of sympathy for liberality of opinion. In his Reflections, he treats the society for constitutional information" as a charitable club; and the "revolution society" as a gathering of dissenters, who, if they had not been noticed by the French assembly, would never have emerged from obloquy; and in that other celebrated passage, he thus disposes of the new sect, whose voice it was thought would be sufficient to overthrow the institutions of a thousand years.

"The vanity, restlessness, petulance, and spirit of intrigue, of several petty cabals, who attempt to hide their total want of confidence in bustle and noise, and puffing and mutual qoutation of each other, makes you imagine that our contemptuous neglect of their abilities is a general mark of acquiescence in their opinions. No such thing, I assure you. Because half-a-dozen grasshoppers under a fern make the field ring with their importunate chink, whilst thousands of great cattle repose beneath the shadow of the British oak, shew the cud, and are silent-pray, do not imagine that those who make the noise are the only inhabitants of the field; that of course they are many in number; or that, after all, they are other than the little, shrivelled, meagre, hopping, though loud and

troublesome, insects of the hour. I almost venture to affirm that not one in a hundred amongst us participates in the 'triumph' of the Revolution Society."

If so, a dominant party might have safely left the inconsiderate reformers to the natu ral result of contempt and time. In the progress of a faction, the crisis inevitably returns when the good and the evil are separated the enduring and perishable materials are resolved into their kindred elements; that which is malignant or foolish or impracticable becomes embodied in a small fanatical horde, whose outcries if left unnoticed gradually subside, and having no audience to applaud them, the evil that they produce only reacts upon themselves. That which is really patriotic and religious having shaken off the baser material, gradually leavens the whole community, and forms an enduring and natural alliance with the fortunes of the country. We can now hear and laugh at the dreams of well-meaning Republican theorists. We do not need a prosecution to meet a prophecy that society is doomed, and that nothing can stay the spreading corruption, except the realization of some great idea dimly shadowed forth, the universal recognition of some high principle, or the elevation to power of some impossible seers.

But men in that day took the measure of their opponents' power from their own alarm. The capricious ebullitions of popular sentiment were extinguished by the heavy arm of the law, stretched for the occasion by alarmist judges. In every instance in Scotland (it was not so in England), conviction followed upon prosecution, and the freedom and hopes of the nation only recovered after years of arrogant and insulting rule. The ultima ratio in the controversy was at once made the sword of authority or the force of resistance. The system of repression was continued at a later period in the Six Acts, and the Gagging Bills of Castlereagh-fettering the press with heavy stamps and onerous securities; introducing the punishment of banishment for libels; empowering the magistracy to disarm the people, and subjecting the homes of freemen even to nightly visitations; restricting the exercise of the right of meeting to petition, and contracting to an alarming extent that personal liberty which Englishmen are edu cated to consider as their birthright. The bonds that bind society together snap asunder in the presence of such oppression. Education, religion, hope, fear, become mere words. Men are transformed into wild beasts, and like wild beasts stand at bay at 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 modEdinburgh of their day. ern days the advocate works for a more

troubled the scrupulous mind of Horner; and has often lost to the bar conscientious men, who took the picture of it from its gloomy side.

The modern theory of advocacy, 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 a man, on his own responsibility, to pronounce dogmatically his opinion; and this is not the purpose for which the trained 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 and 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.

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