it not been for the wrong first done, these effects would not have been in your majesty's dominions. So, had not the contract been first broke by nonpayment of the whole loan in 1745, this money would not have been in his Prussian majesty's hands.

Your majesty's guaranty of these treaties is entire, and must therefore depend upon the same conditions upon which the cession was made by the empress-queen. But this reasoning is in some measure superfluous, because, if the making of any reprisals upon this occasion be unjustifiable,-which we apprehend we have shown, then it is not disputed that the nonpayment of this money would be a breach of his Prussian majesty's engagements, and a renunciation, on his part, of those treaties.

THOMAS ERSKINE.

[Thomas Erskine, youngest son of Henry David, tenth Earl of Buchan, was born in Edinburgh, January 10, 1750. In 1762, the family, for economical reasons, moved to St. Andrews, where Thomas supplemented his mother's instruction by attendance at grammar school and intermittent studies at the university. In 1764 he left Scotland for the West Indies as midshipman on board the Tartar. The navy was never to his liking, however, and two years later he invested the slender patrimony accruing from the death of his father in a commission in the First Royal Regiment of Foot. In 1770 he married Frances Moore, accompanied by whom he then spent two years with his regiment in Minorca. In 1772 he went to London on a six-months leave. He readily obtained admission to society, where, according to Boswell, he "attracted particular attention by the vivacity, fluency, and precision of his conversation." The young soldier was now seized with a desire to enter the legal profession. Encouraged, probably, by his brother Henry's success in Scotland, Erskine entered forthwith as a student at Lincoln's Inn. In 1776 he matriculated as a gentleman commoner at Trinity College, where he won the college prize for English declamation, and received an honorary M. A. degree in 1778. He studied law, first in the chambers of Buller, and afterwards in those of Wood, with whom he remained until 1779. He was a diligent student, and a constant speaker at the debating societies. At length, after many privations, he was called to the bar July 3, 1778. Within a few months after his call, his effort in defense of Capt. Baillie brought him into prominence. He joined the home circuit, and received many retainers. In 1780 his great speech in defense of Lord Gordon placed him in the front rank at the bar. By 1783 he had surpassed all rivals, and had made £9,000, besides paying all his debts. His professional earnings are said to have reached a total of £150,000. In 1783, at Mansfield's suggestion, he received a silk gown; in the same year he was made attorney general to the Prince of Wales, with whom he was on terms of intimacy. On the formation of the coalition government, he entered parliament as the friend of Fox and Sheridan. His first speech in the house was a failure. It is said that, when Erskine rose to speak, Pitt sat, paper and pen in hand, ready to take notes for a reply, but, as the speech progressed, he appeared to lose interest, and finally threw away his pen. This by-play unnerved Erskine, whose fear of Pitt-from which he never recovered-was, as Fox said, "the flabby pet of his character." His subsequent parliamentary efforts added nothing to his reputation; and after actually breaking down, in 1796, in attempting to answer Pitt's great speech on the rupture of the negotiations Veeder-3

with France, he seldom spoke. In 1790 he visited France, and imbibed enthusiasm for the French cause. In this year he was returned to parliament from Portsmouth, a seat which he retained until he became a peer. In the meantime, however, he had reached the height of professional popularity in advocacy of freedom of speech. Such was his strength that, in the exigencies of party politics on the death of Pitt, after the seals had been successively declined by Lord Ellenborough and Sir James Mansfield, they were offered to Erskine, and accepted. The appointment was a poor one, for Erskine's power was altogether forensic; besides, he had never practiced in chancery. But with his natural aptitude, and with the assistance of Hargrave, he made a fair chancellor. In the house of lords he was assisted in the hearing of appeals by Lord Eldon and Lord Redesdale, to whom he usually deferred. His chief judicial act was to preside at the trial of Lord Melville in 1806. The chancellorship was the turning point in Erskine's career. After the dissolution of parliament in 1807, he gradually dropped out of public view. He lived the life of an idler and man about town. Unfortunate investments in America and elsewhere exhausted his fortune. He frequented the scenes of his early triumphs at Westminster Hall, expressing regret that he had ever left the bar. He sought diversion in the composition of a political romance in imitation of More's Utopia. In parliament he gave some feeble assistance to Romilly's great reforms, and he took a popular part in behalf of Queen Caroline; but, estranged from the king, discredited by society, and in poverty, his race was nearly run. At various times he had been accused, apparently without foundation, of taking opium. At some time not ascertainable he married at Gretna Green a Miss Mary Buck. In the autumn of 1823 he started for Scotland to visit his brother, the Earl of Buchan, but was taken ill on the way, and died at the residence of his brother Henry's widow in Almondale, West Lothian, November 17, 1823.]

Erskine's reputation has been materially enhanced by the romance of his early life, and the historical significance of the great causes in which he displayed his highest powers. "I had scarcely a shilling in my pocket when I got my first retainer," he related many years afterwards. "It was sent to me by a Captain Baillie, of the navy, who held an office at the board of Greenwich Hospital; and I was to show cause in the Michaelmas term against a rule that had been obtained in the previous term calling upon him to show cause why a criminal information for a libel reflecting on Lord Sandwich's conduct as governor of that charity should not be filed against him. I had met this Captain Baillie, during the long vacation, at a friend's table, and after dinner I expressed myself with some warmth on the corruption of Lord Sandwich as first lord of the admiralty, and then adverted to the scandalous practices imputed to him with regard to Greenwich Hospital. Baillie nudged the person who sat next to him, and asked who I was. Being told that I had just been called to the bar, and had been formerly in the navy, Baillie exclaimed, with an oath, 'Then I'll have him for my counsel.' I trudged down to Westminster Hall when I got the brief, and being the junior of

five, who would be heard before me, never dreamed that the court would hear me at all. Bearcroft, Peckham, Murphy, and Hargrave were all heard at considerable length, and I was to follow. Hargrave was long-winded, and tired the court. It was a bad omen; but, as my good fortune would have it, he was afflicted with strangury, and was obliged to retire once or twice in the course of his argument. This protracted the cause so long that, when he had finished, Lord Mansfield said that the remaining counsel should be heard the next morning. This was exactly what I wished. I had the whole night to arrange, in my chambers, what I had to say the next morning; and I took the court with their faculties awake and freshened, succeeded quite to my own satisfaction (sometimes the surest proof that you have satisfied others), and as I marched along the hall, after the rising of the judges, the attorneys flocked around me with their retainers. I have since flourished, but I have always blessed God for the providential strangury of poor Hargrave." This very promising beginning, together with his still more extraordinary maiden effort before a jury, two years later, in defense of Lord Gordon, placed Erskine at once in the full tide of professional practice, and from this time until his elevation to the chancellorship in 1806 he was actively engaged in much of the important litigation of the time. His ablest efforts have been well preserved. The best. editions of his works contain some two dozen well-reported argu

ments.

In any consideration of Erskine's work, attention is naturally directed, in the first place, to his efforts in the domain of public law. Two-thirds of his reported speeches deal with treason and libel; it is in these departments of the law that his eloquence attained results which exerted an influence beyond immediate questions of guilt or innocence. The French Revolutionary era naturally produced a ferment in English politics. Every successive measure of precaution or restriction on the part of the govern ment moved the radicals to more outspoken sympathy or fiercer denunciation. The weapons available to the government for the suppression of this freedom of action and of speech were the old statute of treasons, passed in the reign of Edward III., and the aw of criminal libel, as formulated by the Star Chamber. A short sketch of the development of the law of treason and libel will be found in the subsequent statements of the cases of Lord Gordon and the Dean of St. Asaph.

For a long time no occasion had arisen for the enforcement of the law of treason, either in imagining the death of the king or

by levying war against him, except in the obvious sense of those terms. The case of Lord Gordon, in 1780, was a sort of preliminary skirmish. Erskine did not take issue with the authorities, but defended on the ground that Lord Gordon had nothing to do with the riots. As, however, Lord Gordon could have been convicted only by means of a strained application of the treason statute with respect to levying war, his acquittal was popularly regarded as a blow at the obnoxious doctrine of constructive treason. The subsequent cases of Hardy and Horne Tooke, in 1794, turned upon another branch of the treason statute,-that of imagining the king's death. In Hardy's case, Erskine did not deny that an intent to depose the king was a fact from which the jury might infer that the death of the king was intended; but, holding to the literal sense of the words, he contended that, unless they did draw such an inference, they could not properly convict the prisoner, even if they thought he had, by an overt act, manifested an intention to depose the king. In the case of Horne Tooke, the doctrine of constructive treason was squarely raised by the instruction of Lord Kenyon that "a jury ought to find that he who means to depose the king compasses and imagines the death of the king." Of course, it is impossible to determine how far the verdict in these cases was due to the failure of the prosecution to establish anything more than a political agitation; but, for practical purposes, the doctrine of constructive treason had been completely discredited. The government took this view of the matter, for in the following year the constructive features of the law of treason were embodied in a supplementary act. Subsequently, by the treason felony act of 1848, all those acts which had been brought under the head of compassing the king's death, except such as were aimed at the person of the sovereign, were converted into felonies.

Erskine began his splendid exertions for free speech in the case of the Dean of St. Asaph, in 1784. In that case, however, Lord Mansfield's restricted views with respect to the province of juries in such cases were sustained. Five years later, Erskine secured the acquittal of Stockdale; and in 1792 his efforts bore fruit in Fox's libel act, by the terms of which the right of the jury to determine upon the guilt of the whole matter was secured. In the same year he hazarded his professional standing by undertaking the defense of Thomas Paine for publishing the Rights of Man. His argument in this case is an elaborate statement of his views of the nature and extent of the liberty of the press, and, although he was unsuccessful in the issue, the principles then maintained