94 Ch. 3+ 1794. SPEECH OF THE ATTORNEY-GENERAL. The Attorney-General opened the case in a speech which lasted from ten o'clock in the forenoon to seven in the evening. The style of this great lawyer was never remarkable for vigour or perspicuity; and as he went on, hour after hour, accumulating fact upon fact, and endeavouring to demonstrate by a cumbersome process of reasoning, that a conspiracy to compel the King to govern otherwise than by the laws, was a conspiracy to depose him from the royal state, title, power, and government, as set forth in the indictment; that such an attempt must lead to resistance that resistance must lead to his deposition, and that his deposition must endanger his life; the jury, overwhelmed by this heterogeneous mass of argument and detail, gaped in dreary bewiderment; and men accustomed to the practice of the courts, saw that the prisoner was already half acquitted. It was past midnight when the jaded court adjourned for a few hours' repose. Before the adjournment, however, Erskine, with exquisite dexterity, took occasion in this early stage, to prejudice the evidence for the prosecution. After the Attorney-General's speech, the remainder of the sitting had been occupied with putting in and reading the papers taken from the possession of the prisoner. Upon these voluminous documents, the Sir John Scott, afterwards Lord Eldon. The Solicitor-General was Mitford, afterwards Lord Redesdale, Lord Chancellor of Ireland. ERSKINE'S SKILFUL DEFENCE. case for the Crown mainly rested, and some of them were of a serious character. To obviate the impression which such evidence was calculated to produce at the outset of the trial, Erskine affected to complain that the legal advisers of the prisoner had hitherto been refused permission to see the papers put in evidence; and, as the charge of compassing the king's death was to be extracted from these papers, which it took the AttorneyGeneral nine hours to read, it was but reasonable, he said, that he should have an opportunity of examining them. Erskine knew very well, that neither the Crown, nor any party to a private suit, discloses the evidence beforehand to the other side. He had long known the papers on which the weight of the case chiefly rested; but the remark, for which this pretext afforded an introduction, was intended not for the Court, but for the jury; and it had its effect. It told upon the jury. The reading of the documentary evidence occupied the whole of the next day. The correspondence between the different societies established throughout the kingdom, and with the French Convention and the Jacobin Club, in the election of some of the French revolutionary leaders as honorary members of the Constitutional Society; the affectation of the French term, Many years after the trial, a gentleman who had served on the jury said to Mr. Adolphus, Sir, if the evidence had been much stronger than it was, I should have had great difficulty in convicting men of a crime, when it occupied the Attorney-General nine hours to tell me what it was.'-ADOLPHUS's History, vol.vi. Ch. 34 1794 95 96 1794 WITNESSES CROSS-EXAMINED Ch. 34. citizen, sufficiently showed that the sympathies of the prisoners were with French rather than English ideas of freedom. When pressed by such evidence, Erskine would get up and ask, how all this bore on the charge of compassing the king's death, which was the precise charge the prisoner had to meet? An atrocious piece of ribaldry in the shape of a play-bill, purporting to be the cast of a performance called La Guillotine; or, George's Head in a Basket; for the Benefit of John Bull,' having been brought home to Baxter, one of the prisoners, Erskine tried to get rid of it as a fabrication of the spies who had got up the prosecution; but being promptly called to account by the Attorney-General for this daring sally, the Chief Justice followed, and compelled him to adopt the term infamous,' in reference to this lampoon. Several sharp altercations took place between Erskine, who bore the brunt of the battle, and the counsel for the Crown; sometimes he menaced the judge, who showed no unwillingness to push the case for the prosecution. A most important witness for the Crown was sinking fast under a terrific cross-examination, when the Chief Justice interposed to help him; but the counsel sharply rebuked this irregular interference. I am entitled,' said he, to have the benefit of this gentleman's deportment. If your lordship will indulge me-' and he waved the judge aside. Give him. fair play,' said Eyre. He has had fair play,' retorted Erskine. I wish we had as fair play. BY ERSKINE. 97 But that,' he added with fine irony, 'is not for the Ch. 34. 1794 the Judges. The bias of the judges, was, indeed, too visible dur- Partiality of ing the whole series of these prosecutions. On one occasion, during Hardy's trial, Erskine being absent from Court, Gibbs, who was left in charge of the case, had to cross-examine one of the principal witnesses. The man was asked if he had not been a spy, upon which the Chief Justice, without any objection from the counsel for the Crown, interposed, and would not permit the question to be answered. Soon after, the cross-examining counsel was stopped again. On this occasion, Gibbs declining to argue the point, desired the usher of the Court to send for Mr. Erskine, and sat down. A nervous pause ensued, during which the judges consulted together with manifest uneasiness. Presently, Erskine came into Court, and being informed of what had taken place, maintained that his junior had been right both in principle and in practice, and appealed to Mr. Justice Buller, the greatest authority in the commission, in support of his assertion. Buller could not help ruling, however reluctantly, in Erskine's favour, and the trial proceeded without further interruption from the Bench. At length, the Court having sat every day from eight in the morning till midnight, the Attorney-General announced, on the afternoon of the fifth day, that the case for the Crown was closed. Erskine applied for an adjournment until the following day, that he might be prepared to 98 Ch. 34 1774 Erskine's cross-examination of witnesses. ERSKINE'S SPEECH address the jury on behalf of the prisoner. There should have been no hesitation in acceding to an application so reasonable, considering the unprecedented duration of the trial, and the multifarious evidence which had been so heaped up. But the Chief Justice showed a strong disposition to deny the indulgence asked, and haggled about an hour, more or less. The jury, resenting what appeared to them a desire to bear with undue hardship on the prisoner, interposed, in support of Erskine's application, and the court was compelled to yield. At two o'clock in the afternoon of the following day, Erskine rose to address the jury. Up to this time, he had conducted the case with consummate skill. He had missed no point; he had made no mistake. He suffered the witnesses for the Crown to tell their story without those captious interruptions and objections, from which the jury are apt to infer that the counsel is attempting to stifle evidence which he cannot fairly meet. When he objected to a question, his objection was either arguable in point of law, or was raised with the view of prejudicing the prosecution. Crossexamination, which, in ordinary hands, more frequently corroborates than shakes the adversary's case, was ever sparingly used by this great advocate; indeed, if he could be said to fall short of excellence, in any branch of his art, it was in this. He made little impression, therefore, by leading an unwilling witness for the Crown, who |