❖་སྣ་བཏི་སྣོ

pazeed is such as are comptest to Nas Rusyacation in avowing, that our sot tor thared Not a word have we heard inbought applause extorted from Lord Erskine has rendered to the

bay at all who have had time to study me 4*

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now go along with us in the tribute of admiration paid to their transcendent merits. Indeed there seems but one voice upon the matter. We heard some time ago of an exception or two, the particulars of which have escaped us; but we believe there was a newspaper written in the Scottish tongue, in some remote part of the country, which professed an inability to understand the beauties of the composition, possibly from ignorance of the language in which the speeches were delivered: and it was said, that an attorney, somewhere in Scotland, (and most likely from the same cause), was greatly offended at our praise of the speech for Stockdale, which he professed an inability to enter into ;— but was confident the best Session papers' were very different things. With these slight exceptions, we take the opinion of the country, and of every part of the world where the language is understood, to be that of the most unbounded admiration of these exquisite specimens of judicial oratory,—and of great obligations to the editor of the collection.

Those obligations are now considerably increased by the publication of the present volume, which contains some speeches less known to the world, because upon subjects of a private nature; but not at all inferior in oratorical merit to the finest of Lord Erskine's performances in State Trials. It is with great delight that we revert to so interesting a task as that of tracing the skill and genius of a first-rate orator, and of holding up his exertions for the instruction of those who may feel within themselves one of the noblest passions of our nature-love of the fame to be acquired, and the gratification to be felt, in wielding the feelings of a popular assembly;-a passion only second to that of which Lord Erskine too holds forth so bright an example-the love of earning that fame by the services which, in a free country, eloquence may render to the rights of the people, and the best interests of mankind.

This volume contains seven speeches of Mr. Erskine; three of which are on trials of a public nature-the speech for Hadfield, that for the Madras Council, and that for Cuthell. The other four are speeches in private actions; two in cases of adultery, one in an action for breach of promise of marriage, and one in the Bishop of Bangor's case. There is a circumstance, unavoidable perhaps, but greatly to be lamented, in the publication of the two speeches in cases of seduction: we mean the pain which a revival of such discussions must give to the feelings of the parties and their families. The publicity of their story inflicts some of the most acute of the sufferings arising from such transactions at the time; and it is painful to think how severely the same feelings must be wounded by the revival of the subject at a distance of time, when those may have become capable of being

wounded, over whose happily tender years the first blast of evil fame had passed innoxious. For this serious evil we fear there is no remedy; yet we do not the less regret it; and, in alluding to the cases in question, and quoting passages, we shall carefully abstain from mentioning names, that we may not have to reproach ourselves with spreading the mischief.

The speech for Hadfield contains one of the most sound and able disquisitons on the subject of insanity, as matter of defence against a criminal charge, that is any where to be found. Indeed, we view it. as a peculiarly important addition to legal learning, and as going far to settle the question within what limits this defence shall be available. Most of our readers must recollect the singular transaction which gave rise to it. We prefer recalling it to the minds of such as do not, in the words of Mr. Erskine's exordium; for they convey a lesson as well as a narrative of the fact.

"The scene which we are engaged in, and the duty which I am not merely privileged, but appointed by the authority of the Court to perform, exhibits to the whole civilized world a perpetual monument of our national justice.

"The transaction, indeed, in every part of it, as it stands recorded in the evidence already before us, places our country, and its government, and its inhabitants, upon the highest pinnacle of human elevation. It appears, that upon the 15th day of May last, his Majesty, after a reign of forty years, not merely in sovereign power, but spontaneously in the very hearts of his people, was openly shot at (or to all appearance shot at) in a public theatre in the centre of his capital, and amidst the loyal plaudits of his subjects, YET NOT A HAIR OF THE HEAD OF THE SUPPOSED ASSASSIN WAS TOUCHED. In this unparalleled scene of calm forbearance, the king himself, though he stood first in personal interest and feeling, as well as in command, was a singular and fortunate example. The least appearance of emotion on the part of that august personage, must unavoidably have produced a scene quite different, and far less honourable than the Court is now witnessing; but his Majesty remained unmoved, and the person apparently offending was only secured, without injury or reproach, for the business of this day." p. 5.

He then describes the peculiar indulgences which our treason laws extend to the accused; in so much that he who, for an attack upon the meanest individual, would be hurried away to trial, without delay, or counsel, or knowledge of witnesses, or of jurors, or of charges, is, when charged with a murderous design against the sovereign of the country, covered all over with the armour of the law;-a distinction which, when soberly considered, we may in passing remark, affords praise to the English law of treasons, at the expense of the other branches of criminal ju

risprudence. Mr. Erskine, pursuing the topic, enters upon a train of reflexions, which, we think, all will acknowledge to be profound, who are not resolved to call every thing shallow and empty, which they are forced to admit is beautiful and brilliant.

"Gentlemen, when this melancholy catastrophe happened, and the prisoner was arraigned for trial, I remember to have said to some now present, that it was, at first view, difficult to bring those indulgent exceptions to the general rules of trial within the principle which dictated them to our humane ancestors in cases of treasons against the political government, or of rebellious conspiracy against the person of the king. In these cases, the passions and interests of great bodies of powerful men being engaged and agitated, a counterpoise became necessary to give composure and impartiality to criminal tribunals; but a mere murderous attack upon the king's person, not at all connected with his political character, seemed a case to be ranged and dealt with like a similar attack upon any private man.

"But the wisdom of the law is greater than any man's wisdom; how much more, therefore, than mine! An attack upon the king is considered to be parricide against the state; and the jury and the witnesses, and even the judges, are the children. It is fit, on that account, that there should be a solemn pause before we rush to judgment: and what can be a more sublime spectacle of justice than to see a statuta. able disqualification of a whole nation for a limited period, a fifteen day's quarantine before trial, lest the mind should be subject to the contagion of partial affections!"* p. 6, 7.

He now enters upon the subject, and cites the authorities of our great criminal lawyers, especially Lord Hale, as establishing the rule, that it must be a total and not a partial insanity which shall excuse. The rule, however, is of difficult application; and Lord Hale himself has admitted it when he says, that it is very difficult to define the invisible line which divides perfect and partial insanity; and adds, it must rest upon circumstances, duly to be weighed and considered both by judge and jury, lest on the one side there be a kind of inhumanity towards the defects of human nature; or, on the other side, too great an indulgence given to great crimes.' The arguments of Mr. Erskine are addressed to the proper means of applying this rule; and they are, in our humble apprehension, equally ingenious and satisfactory. He first admits, that there is a material difference between the application of it to civil and to criminal cases. In the former, the law will justly avoid a man's act, if he be proved to be non compos mentis, although the act in question cannot be referred to the peculiar impulse of the malady; or even, though to all appearance it may be separate from it, provided only it be shown,

There must be fifteen days between arraignment and trial.

that, at the time of doing the civil act, he was not of sound mind. But, in judging of a criminal act, some connexion must always be traced between the act and the delusion under which the person labours ;—it must appear to flow from that delusion. Here Mr. Erskine clears away a misapprehension of the phrase total insanity, or total deprivation of mind and understanding, as used by Lord Coke and Lord Hale. If,' says he, a TOTAL deprivation of memory was intended by these great lawyers to be taken in the literal sense of the words;-if it was meant, that, to protect a man from punishment he must be in such a state of prostrated intellect as not to know his name, nor his condition, nor his relation towards others-that, if a husband, he should not know he was married; or, if a father, could not remember that he had children; nor know the road to his house, nor his property in it-then no such madness ever existed in the world. It is IDIOCY alone which places a man in this helpless condition; where, from an original mal-organization, there is the human frame alone without the human capacity. But in all the cases which have filled Westminster Hall with the most complicated considerations-the lunatics, and other insane persons who have been the subjects of them, have not only had memory, in my sense of the expression-they have not only had the most perfect knowledge and recollection of all the relations they stood in towards others, and of the acts and circumstances of their lives, but have, in general, been remarkable for subtlety and acuteness.' These,' he adds, are the cases which frequently mock the wisdom of the wisest in judicial trials; because such persons often reason with a subtlety which puts in the shade the ordinary conceptions of mankind; their conclusions are just and frequently profound; but the premises from which they reason, WHEN WITHIN THE RANGE OF THE MALADY, are uniformly false :-not false from any defect of knowledge or judgment; but because a delusive image, the inseparable companion of real insanity, is thrust upon the subjugated understanding, incapable of resistance, because unconscious of attack.' The doctrine contended for is clearly expressed, and with a singular felicity of diction too, in the following passage:

"Delusion, therefore, where there is no frenzy or raving madness, is the true character of insanity; and where it cannot be predicated of a man standing for life or death for a crime, he ought not, in my opinion, to be acquitted; and if courts of law were to be governed by any other principle, every departure from sober, rational conduct, would be an emancipation from criminal justice. I shall place my claim to your verdict upon no such dangerous foundation. I must convince you, not only that the unhappy prisoner was a lunatic, within my own definition of lunacy, but that the act in question was the IMMEDIATE, UNQUALIFIED OFFSPRING OF THE DISEASE. In civil cases, as I have