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 arguments.

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 government 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 law 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

by him have been adopted in our own day. In his view, the criminal intent was the root of the libel; hence one who publishes what he really believes to be true, from a desire to benefit mankind, does not act from a criminal motive, however erroneous and offensive his opinions may be. In other words, there is no guilt unless the publication directly tends to incite crime or attacks individual character. In the stormy times of the last decade of the eighteenth century, however, juries proved to be severe censors of the press, and convictions were as frequent as they had been before the libel act. In 1793, Frost was convicted, despite Erskine's efforts, for saying that he was "for equality and no king"; but in the same year he secured the acquittal of Lambert and Perry, the proprietors of the Morning Chronicle. In 1796, he successfully defended John Reeve, the author of the History of English Law, who was prosecuted for publishing a speculation upon the origin of parliament. In the following year he appeared, for the first time, as a prosecutor, in the case of Williams, the publisher of Thomas Paine's Age of Reason. In this case he developed his view of the limits of public discussion. There can be no doubt that the radical change in public sentiment which has at length rendered the law of political libel almost obsolete was greatly influenced by these arguments of Erskine. The progress in England, it is true, has been gradual. The prosecutions of Hunt and of Moxon, in the last reign, savored strongly of the past. But by a series of legislative enactments, from 1819 to Lord Campbell's act of 1843, the English law of libel has at length been put upon a modern basis.

The remainder of Erskine's speeches cover a wide range of topics. Besides some exhibitions of his well-recognized power in cases of criminal conversation, attention is called to his able effort in defense of Hadfield, in which he expounds with learning and eloquence the nature and limits of insanity as a defense to crime.

Erskine's advocacy won verdicts from juries; it won also, says Wraxall, "the admiration of the great luminaries of the law." His reputation as an advocate has never been surpassed at the English bar, and his greatest arguments continue to be read, with pleasure and profit, wherever English law is administered. Yet his power lay neither in scope and reach of intellect, nor in his store of legal learning, but in the possession, in rare combination, of the various qualities essential to successful advocacy before juries. "To describe Erskine at the bar," as Serjeant Taulford said, "is to ascertain the highest intellectual eminence to which a barrister, under the most favorable circumstances, may aspire.

He had no imaginative power, no great comprehension of intellect, to incumber his progress. Inimitable as pleadings, his corrected speeches supply nothing which, taken apart from its context and occasion, is worthy of a place in the memory. Their most brilliant passages are but commonplace, exquisitely wrought, and curiously adapted to his design. Had his mind been pregnant with greater things, teeming with beautiful imagery, or, indeed, with wisdom, he would have been less fitted to shed luster on the ordinary feelings and transactions of life."

He was in no sense a learned lawyer. In what may be called his heaviest cause,—on the rule to show cause before the court of king's bench in the Dean of St. Asaph's Case, he cites only a few obvious authorities; and his pretended historical sketch of trial by jury is given in ignorance of the fundamental fact that jurors were originally witnesses, and not judges at all. Nevertheless, his efforts in the state trials of the time undoubtedly promoted the enactment of new laws, and his twenty-years connection with the maritime and commercial litigation arising out of the French war must have contributed to the results attained by Lord Mansfield in that department of jurisprudence. His ascendancy over Lord Kenyon unquestionably effected an increase in the allowable compensation to injured defendants in cases of criminal conversation. In this class of litigation Erskine especially excelled. He was counsel generally for the defense-in all the prominent cases of his time, and obtained verdicts for as much as £10,000. So far as he dealt with legal questions, his forte was the statement and argument of legal rules in terms that would appeal to the average juror. This does not always tend to make the argument entertaining reading. In the case of Hardy, where a considerable part of his address deals with the law relating to constructive treason, he does not rest with a clear statement of the law, but proceeds to drive it into the heads of the jurors with an amount of reiteration that makes the speech tiresome to the professional reader. His argument on the jurisdiction of the admiralty, in his defense of Easterby, which is almost wholly disconnected from questions of fact, is a good specimen of his powers; but the only technical argument that can compare with his speech in the Dean of St. Asaph's case, which Fox considered the finest argument in the language, is his defense of Hadfield. Among other good examples of his success in expounding legal principles to laymen, his defense of Cuthell deserves mention.

Erskine's style alone, although a vast improvement on that of his immediate predecessors and contemporaries, would not be suf

ficient to rescue his work from oblivion. It owes its excellence, not to polish, beauty of diction, richness of ornament, or felicity of illustration,-though never lacking these qualities in some degree, but rather to its strength, vigor, and fitness to the occasion. He enforces his arguments with an intentness, an earnestness, an energy, often with a vehemence, which seemed to compel conviction. In his longest speeches there is seldom any weakness or falling off; the same animated statement, pointed expo- . sition, and lively argument continue throughout. He shows this skill to fine effect in his defense of Hardy, where the tedious reiteration required to enforce his view of the law is occasionally relieved by reference to collateral topics of lighter character "which obtruded themselves upon his mind from common reading," and by digressions in which he "must express himself as the current of his mind carried him." There is seldom any brilliancy of ornament. Such ornament as his work possesses is invariably that of sentiment, rather than diction; his whole style addresses itself to the reason and passions, rather than to the taste and imagination. In other words, his style is either naturally or consciously adapted to the level of the audience for which it is intended. The only metaphor often quoted from his works occurs in Lord Gordon's case, where, in speaking of malice in crime, he says: "Thus the law, which is made to correct and punish the wickedness of the heart, and not the unconscious deeds of the body, 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." Still, his remarks on the undue restriction of the press, towards the close of his argument for Stockdale, form a noticeable exception to this characterization. Admirably suited to his purpose, the passage is also, in itself, a fine specimen of amplification.

Although Erskine was a very witty man, he seldom made use in his arguments of either wit or humor. His humorous description of the defendant in Morton v. Fenn,1 and of the alleged implements of war in Walker's Case,2 are probably the only attempts of this sort to be found in his works. Occasionally the simplicity of his illustrations produce a humorous effect. Thus, in his speech for Hardy, he was trying to trace the possible workings of the suggestion that a conspiracy to effect a reform in the house of commons by pamphlets and speeches might end in the death

4 Wks. 263. Reference is made to the four-volume edition of Erskine's speeches edited by James L. High, Esq., and published by Callaghan & Co., Chicago, Ill. 22 Wks. 301.