« PreviousContinue »
LORD THOMAS ERSKINE (1750–1823)
N 1774, Thomas Erskine, son of the Scottish Earl of Buchan, I happened to enter the court presided over by the famous Lord Mansfield, and was invited by him to sit by his side. He listened to the trial with the result that, convinced that he could easily surpass any speech he had heard, he resolved to adopt the law as his profession. Leaving the fashionable world of London, where his charming social powers had made him a marked success, he entered Lincoln's Inn as a student, and was called to the bar in 1778. In his first case, in which his client was on trial for libel on the Earl of Sandwich, a member of the Cabinet, Erskine showed such remarkable powers as to astonish all his hearers, and to bring himself at a bound into the highest rank of his profession.
Erskine subsequently entered Parliament, but political debate was not to his taste, and he failed to make any high mark in the House of Commons. In the legal arena, however, his success continued, high authorities looking upon him as unequalled, either in ancient or modern times, as an advocate in the forum. In the defence of right against might he was one of the most conspicuous examples in English history. He was the successful defender of Lord George Gordon, of Thomas Paine, of Stockdale, of John Horne Tooke, and of others who had dared to defend the rights of the people against the acts of the great. He became Lord Chancellor in 1806, and was raised to the peerage as Baron Erskine, retiring from office in 1807.
THE GOVERNING OF INDLA
[Burke's articles of impeachinent against Warren Hastings, were published and widely spread in advance of their delivery before the House of Lords, and prejudiced the case against the defendant. This unfair act of the House of Commons was
486 LORD THOMAS ERSKINE
sharply criticised in a pamphlet published by the Rev. Mr. Logan. The author was put on trial for libel, and engaged Erskine to defend him. Erskine's speech at this trial, from which we give a select passage, was one of the ablest and most eloquent displays of his powers of oratory.]
It may and must be true that Mr. Hastings has repeatedly offended against the rights and privileges of Asiatic government, if he was the faithful deputy of a power which could not maintain itself for an hour without trampling upon both. He may and must have offended against the laws of God and nature if he was the faithful viceroy of an empire wrested in blood from the people to whom God and nature had given it. He may and must have preserved that unjust dominion over timorous and abject nations by a terrifying, overbearing, insulting superiority, if he was the faithful administrator of your Government, which, having no root in consent or affection, no foundation in similarity of interest, nor support from any one principle which cements men together in society, could only be upheld by alternate stratagem and force. The unhappy people of India, feeble and effeminate as they are from the softness of their climate, and subdued and broken as they have been by the knavery and strength of civilization, still occasionally start up with all the vigor and intelligence of insulted nature. To be governed at all, they must be governed with a rod of iron; and our empire in the Eastern World long since must have been lost to Great Britain, if civil skill and military prowess had not united their efforts to support an authority which Heaven never gave, by means which it never can sanction.
Gentlemen, I think I can observe that you are touched with this way of considering the subject, and I can account for it. I have not been considering it through the old medium of books, but have been speaking of man and his nature, and of human dominion, from what I have seen of them myself amongst reluctant nations submitting to our authority. I know what they feel, and how such feelings can alone be repressed. I have heard them in my youth from a naked savage, in the indignant character of a prince, surrounded by his subjects, addressing the governor of a British colony, holding a bundle of sticks in his hand as the notes of his unlettered eloquence. “Who is it 2'' said the jealous ruler over the desert, encroached upon by the restless foot of English adventure; “who is it that causes this river to rise in the high mountains and to empty itself in the ocean 2 Who is it that causes to blow the loud winds of winter, and that calms them again in the summer ? Who is it that rears up the shade of those lofty forests, and blasts them with the quick lightning at his pleasure ? The same Being who gave to you a country on the other side of the waters, and gave ours to us; and by this title we will
LORD THOMAS ERSKINE 487
defend it,” said the warrior, throwing down his tomahawk upon the ground, and raising the war-sound of his nation. These are the feelings of subjugated man all round the globe; and depend upon it, nothing but fear will control where it is vain to look for affection. These reflections are the only antidotes to those anathemas of superhuman eloquence which have lately shaken these walls that surround us, but which it unaccountably falls to my province, whether I will or no, a 1ittle to stem the torrent of, by reminding you that you have a mighty sway in Asia, which cannot be maintained by the finer sympathies of life or the practice of its charities and affections—what will they do for you when surrounded by two hundred thousand men with artillery, cavalry, and elephants, calling upon you for their dominions which you have robbed them of Justice may, no doubt, in such case, forbid the levying of a fine to pay a revolting soldiery; a treaty may stand in the way of increasing a tribute to keep up the very existence of the government; and delicacy of women may forbid all entrance into a zenana for money, whatever may be the necessity for taking it. All these things must ever be occurring. But under the pressure of such constant difficulties, so dangerous to national honor, it might be better, perhaps, to think of effectually securing it altogether, by recalling our troops and our merchants, and abandoning our Oriental empire. Until this be done, neither religion nor philosophy can be pressed very far into the aid of reformation and punishment. If England, from a lust of ambition and dominion, will insist on maintaining despotic rule over distant and hostile nations, beyond all comparison more numerous and extended than herself, and gives commission to her viceroys to govern them with no other instructions than to preserve them, and to secure permanently their revenues—with what color of consistency or reason can she place herself in the moral chair, and affect to be shocked at the execution of her own orders; advertising to the exact measure of wickedness and injustice necessary to their execution, and complaining only of the excess as the immorality; considering her authority as a dispensation for breaking the commands of God, and the breach of them as only punishable when contrary to the ordinances of man 2 Such a proceeding, gentlemen, begets serious reflection. It would be better, perhaps, for the masters and the servants of all such governments to join in a supplication that the great Author of violated humanity may not confound them together in one common judgment . . . . It now only remains to remind you that another consideration has been strongly pressed upon by you, and, no doubt, will be insisted on in reply. You will be told that the matters which I have been justifying as legal, and even meritorious, have therefore not been made the subject of
488 LORD THOMAS ERSRINE
complaint; and that whatever intrinsic merit parts of the book may be supposed or even admitted to possess, such merit can afford no justification to the selected passages, some of which, even with the context, carry the meaning charged by the information, and which are indecent animadversions on authority. To this I would answer (still protesting as I do against the application of any one of the innuendos) that if you are firmly persuaded of the singleness and purity of the author's intentions, you are not bound to subject him to infamy, because, in the zealous career of a just and animated composition, he happens to have tripped with his pen into an intemperate expression in one or two instances of a long work. If this severe duty were binding on your consciences, the liberty of the press would be an empty sound, and no man could venture to write on any subject, however pure his purpose, without an attorney at one elbow and a counsel at the other. From minds thus subdued by the terrors of punishment, there could issue no works of genius to expand the empire of human reason, nor any masterly compositions on the general nature of government, by the help of which the great commonwealths of mankind have founded their establishments; much less any of those useful applications of them to critical conjectures, by which, from time to time, our own Constitution, by the exertion of patriotic citizens, has been brought back to its standard. Under such terrors all the great lights of science and civilization must be extinguished, for men cannot communicate their free thoughts to one another with a lash held over their heads. It is the nature of everything that is great and useful, both in the animate and inanimate world, to be wild and irregular, and we must be contented to take them with the alloys which belong to them, or live without them. Genius breaks from the fetters of criticism, but its wanderings are sanctioned by its majesty and wisdom when it advances in its path; subject it to the critic, and you tame it into dullness. Mighty rivers break down their banks in the winter, sweeping away to death the flocks which are fattened on the soil that they fertilize in the summer; the few may be saved by embankments from drowning, but the flock must perish from hunger. Tempests occasionally shake our dwellings and dissipate our commerce; but they scourge before them the lazy elements, which, without them, would stagnate into pestilence. In like manner, liberty herself, the last and best gift of God to his creatures, must be taken just as she is ; you might pare her down into bashful regularity, and shape her into a perfect model of severe, scrupulous law, but she would then be liberty no longer; and you must be content to die under the lash of this inexorable justice which you have exchanged for the banners of freedom.