Blackwood's Edinburgh Magazine, Vol. 68, No 420, October 1850

MODERN STATE TRIALS. ¹

PART I

The idea of this work is happily conceived, and carried into effect, in the two volumes before us, with no little judgment and ability. The subject is one interesting, useful, and important; and the author was in many respects well qualified to deal with it by his talents, his accomplishments, his professional acquirements, and his experienced observation. It will be seen that we speak of the author, and of his work, in different tenses; and there is a melancholy significance in the distinction. Within a very few days of his sending to us these two volumes, he died, unexpectedly, in the flower of his age, and just as he had attained an honour which he had long coveted – that of being raised to the rank of Queen's Counsel. On the first day of last Easter term, he presented himself in each of the courts at Westminster, in his "silk" gown, exchanging the customary obeisances with the Judges, the Queen's Counsel, and the great body of his brethren behind the bar, on being formally called by the Lord Chief Justice "to take his seat within the bar, Her Majesty having been pleased to appoint him one of Her Majesty's Counsel." He looked pleasurably excited: alas, how little anticipating that the last day of that same term would see him stripped of his long-coveted insignia, and clothed in the dismal vesture of the grave! For on that day he died, after a brief but very severe illness, in his forty-sixth year. A serious attack of rheumatic fever, several years before, had permanently impaired his physical energies, though not to such an extent as to prevent the exercise of his profession. His practice, till latterly, had been chiefly at the Cheshire and Manchester sessions, from which he gradually rose into considerable business, both civil and criminal, on the North Wales circuit. On being raised to his briefly-held rank, the prospect of a successful career opened before him; for he knew his profession well, as those were aware who were able and disposed to push him forward. During Easter term he was engaged before a committee of the House of Commons, to conduct a case of some importance. This was a lucrative branch of practice, which he was naturally eager to cultivate. Fatigue, anxiety, and excitement induced the return of an old complaint, accompanied by new and somewhat startling symptoms; but though utterly unfit for business, he could not be restrained from attending the committee room, though it was necessary to carry him in a chair up the long flight of steps leading to the corridor in the new House. He was soon, however, obliged to return as he had gone. The palsying hand of Death had touched the aspiring lawyer! After much suffering, he expired on the 8th of May, the last day of Easter term, and on the 13th was buried in the vaults of Lincoln's Inn, of which he had only a few days previously been elected a Bencher! He was a member of Queen's College, Oxford, where he graduated (we believe with honours) in 1824; was called to the bar in 1828; and elected Recorder of Macclesfield in 1833. – As a speaker he was correct and fluent, though not forcible; as an advocate, judicious and successful. He was a man of classical tastes, extensively read in literature, and exceedingly familiar with political history and constitutional law. What he knew he could use readily and effectively, both as a writer and a speaker. He was very industrious with his pen during every interval between his professional engagements; and has left behind him, independently of his contributions to periodical literature, three works – the History of the House of Commons from 1688 to 1832; the Lives of Twelve Eminent Judges, and the work now before us. The first of these was published in 1843-4, in two volumes octavo. The author's professed object was to present "a popular history of the House of Commons, with biographical notices of those members who have been most distinguished in its annals; and describing the changes in its internal economy, powers, and privileges," during the space of a hundred and forty-four years elapsing between two memorable periods – the "noble introduction" to Parliamentary Records, "afforded by the Convention Parliament of 1688," and the "eventful close" witnessed in the second Parliament of William IV., which passed "the Reform Bill." This space he subdivided into three distinguishing eras: —

"The first includes a space of thirty-nine years – from the abdication of James to the death of George I. in 1727 – characterised by master spirits, critical events, and stirring debate. The second era – sort of mezzo-termino – comprehends the reign of George II., when men in office were corrupt, and public morals low, and the general topics of discourse resembled parish vestry discussions, but still a prosperous reign – the sound common-sense of Walpole promoting, even by inglorious acts, the national welfare, and Chatham's genius rescuing the age from mediocrity.

"The regular publication of the debates, and troubles in America, usher in the last and most glorious epoch, – the days of North and Burke – of Pitt and Fox – of Windham and Canning – of Tierney, and Brougham, and Peel, – illustrated by oratory enduring as the language, and with memories of statesmen that can never die."

Mr Townsend's second work was published about four years afterwards – viz., in 1848 – also in two volumes, and entitled Lives of Twelve Eminent Judges of the Last and Present Century. These were – Lord Alvanley, Mr Justice Buller, Lord Eldon, Lord Ellenborough, Lord Erskine, Sir Vicary Gibbs, Sir William Grant, Lord Kenyon, Lord Loughborough, Lord Redesdale, Lord Stowell, and Lord Tenterden. This work consisted of memoirs, which the author had previously published in the Law Magazine, where they had attracted considerable attention from the profession; as they contained many interesting and entertaining anecdotes, and information not easily attainable elsewhere.² Both of these works are of an entertaining character. They are written in an easy, flowing style – occasionally, however, somewhat loose and gossiping. It must be owned that the author's forte does not lie in the delineation of character, either moral or intellectual. If he really possessed a quick and searching insight into it, he would seem to have felt a greater pleasure in grouping about each individual who was the subject of his pencil the general incidents of his position, than in penetrating his idiosyncrasy, and detecting the operation of those incidents upon it. He does not conceive distinctly of his man, keeping his eye steadily upon him, with a view to the development and exhibition of character; but is apt, if we may be allowed so to speak, to lose him in his life. Still the work is decidedly an acquisition to popular and professional literature, and, equally with its predecessor, evidences the mild and candid temper and character of the author. Thus much we thought it only fair to premise, in justice to the memory of an amiable and accomplished member of the English bar, and a man of letters; one, too, who in his political opinions was a staunch and consistent upholder of those to which Maga has ever been devoted. In no instance, however – in neither of the two works at which we have been thus glancing in passing, nor in that now lying before us – did Mr Townsend suffer his political opinions to bias his judgment, or betray him into the faintest semblance of partiality or injustice.

It is time now to direct attention to the last work of Mr Townsend – which he barely lived to see published – his Modern State Trials, spread over two goodly octavo volumes, containing nearly eleven hundred pages, and these, too, pretty closely printed. Upon this work much thought and labour have evidently been bestowed in the collection of his materials, and dealing with them, as in the volumes before us, in such a manner as to render the product at once interesting and instructive to both general and professional readers.

It is no slight matter to make one's-self thoroughly master of a great case, in all its bearings; to seize its true governing characteristics; to select, condense, and arrange facts and incidents; to assign to every actor, whether judge, jury, witness, or counsel, his proper proportion and position; and all this with a view to interesting and instructing widely different classes of readers – and those, again, general and professional. To do all this effectually, requires powerful talents, much knowledge of life and character, practical acquaintance with the law of the country, a sound judgment, and a vivid imagination. There is scarcely any point of view in which a great trial will not appear deeply interesting to a competent observer, watching how each individual plays his part in the agitating drama. Whether the judge holds the sacred scales even; whether he sees clearly and acts promptly, calmly, resolutely, in detecting fallacy, in order to shield an unsophisticated jury from its subtle and deleterious agency; whether, for this purpose, his intellect and his knowledge are superior, equal, or inferior to those of the advocates pleading before him. How those advocates conduct themselves, intellectually and morally; whether they be clear-headed, acute, ready, learned – or cloudy, obtuse, superficial, and ignorant; whether evenly or over matched; whether they play the gentleman or the scoundrel; whether they will, however difficult the task, nobly recognise the obligations of truth and honour, or villanously disregard them, to secure a paltry triumph in defeating justice! How the witnesses discharge their momentous duties; whether constantly mindful of their oath, or forgetful of it, or wilfully disregarding it, from hostility or partiality to the prisoner, or any other wicked motive. Whether the judge, or the advocates, are equal to the discomfiture of a wicked witness. How the jury are conducting themselves – whether with watchful intelligence, or stolid listlessness. How the prisoner, standing in the midst of all these – with life, with honour, character, liberty, everything at stake – and depending on the word which one of that jury will utter – how he is demeaning himself, knowing, as he does, the truth or falsehood of the charge on which he is being tried; what he is thinking of the exertions of his counsel, of the temper and spirit of the witnesses, of the jury, of the judge; whether he adverts at all to the spectators around him, and the feelings by which they are animated towards him; whether he is aware of, or appreciates, the true strain and pressure of the case – the sudden chances and perils occurring in its progress.

How striking and instructive to observe the abstract rules of justice brought to bear, with equal readiness and precision, upon ordinary and extraordinary combinations of circumstances! – to witness the dead letter of the law become animated with potent vitality for the regulation of human affairs!

Again, it has often occurred to us that there is another point of view from which important trials – nay, almost any trial – may be contemplated with lively interest by a logical observer, with reference to the use made of facts by judicial and forensic intellect. How little even the acutest layman could have anticipated such dealing with facts as that which he here beholds; how he must appreciate the practised, watchful art with which the slightest circumstance is seized hold of, and in due time so combined with others with which it seemed to have no conceivable connexion, as to justify conclusions exactly the reverse of those which had till then seemed inevitable! What totally different aspects the same facts may be made to wear by different dealers with them, having different objects in view! By their different arrangement and combination, what unexpected inferences may be drawn from the self-same facts, and even when similarly arranged and combined! How exciting to see a defence constructed by experienced astuteness and eloquence out of the slightest materials – out of a hopeless case – in the teeth of one overpowering for the prosecution! The desperate determination, the exquisite subtlety, the consummate judgment, often exhibited on such occasions by eminent advocates – struggling, too, at once with their own sense of right and wrong, and the desire to do their utmost for one who has intrusted his all to them – conscious, too, that though a jury of twelve plain common-sense people may be unable to see through the fallacies which are presented to them, it will doubtless be very far otherwise with one who has to follow, who has the last word! and with that last word may at once lay bare the sophistries of forensic effrontery, and perhaps rebuke him who attempted to trifle with and mislead the understandings of those so solemnly sworn to give a just and true verdict according to the evidence. "But what is one to do?" exclaims the anxious advocate. "How am I to defend yonder trembling being who has selected me to stand between him and – the scaffold, it may be – if I am to play the judge, and not the advocate; to yield pusillanimously to an array of fearfully plain facts, and make no attempt to square them with the hypothesis of my client's innocence, or persuade a jury that they are – whatever my own secret opinion – pregnant with too much doubt to warrant a verdict of guilty?" Only one who has been placed in the situation can conceive the faintest idea of what is endured on such occasions by the sensitive and conscientious advocate, who is called upon in desperate emergencies – in moments of intense eagerness and anxiety – the spasms, as it were, of which are publicly exhibited, and before gifted and critical rivals and merciless public censors, to see and observe the delicate but decisive line of right – of duty; to maintain at once the character of the zealous, effective advocate, and the Christian gentleman. If sufficient allowances were made for persons placed in such circumstances of serious embarrassment and responsibility, less uncharitable judgments would be passed on the manner in which advocates exercise their functions than are sometimes seen; judgments formed and pronounced, too, in the closet – by those speaking after the event – calm and undisturbed by anxieties and agitation, which have probably never been personally experienced. This topic, however, we shall hereafter treat more at large, in giving to the volumes before us that extended examination which is at present contemplated. They contain a series of trials of undoubted public interest and importance. They have been selected upon the whole judiciously, with a view to the end which the author had proposed to himself; though the propriety of the title which he has chosen —i. e. "Modern State Trials" – is not at first sight apparent. The idea conveyed by these words is, trials directly affecting the state, political prosecutions in respect of political offences. It is difficult to bring trials for murder, duelling, forgery, abduction, libel, blasphemy, and conspiracy, under this category; and this Mr Townsend felt. Such, nevertheless, constitute a large proportion of the trials contained in these volumes, and are, in our opinion, also those of most popular interest, and worthiest of being dealt with, as it was Mr Townsend's expressed intention to deal with them.

The "trials" contained in the volumes before us are fifteen in number, of which only four, or at most five, (Mr Townsend seems to have thought six,) have any pretensions to be designated "State trials." These five are – John Frost, Edward Oxford, and Smith O'Brien for high treason; Daniel O'Connell, and eight others, for a treasonable conspiracy; and Charles Pinney, for alleged neglect of his duty as mayor of Bristol, during the fiery and bloody "Reform Riots," as the were called, in that place, in October 1831. The remaining ten trials consist of two for duelling – the late James Stuart for killing Sir Alexander Boswell, and the Earl of Cardigan for shooting Captain Tucket; three for murder, (in addition to James Stuart, who was tried for the murder of Sir Alexander Boswell) – viz. Conrvoisier for the murder of Lord William Russell; M'Naughton for the murder of Mr Drummond; Hunter and others for conspiracy and the murder of John Smith, the Glasgow cotton-spinner, in 1837; Alexander (the titular Earl of Stirling) for forgery; Lord Cochrane, and seven others, for a conspiracy to raise the funds; the Wakefields for conspiracy, and abduction of an heiress; John Ambrose Williams for a libel on the Durham clergy; and Mr John Moxon, for blasphemy, in publishing the poems of Percy Bysshe Shelley. It will be observed that all these are criminal trials, and occurred in England, Scotland, and Ireland; affording thus a favourable opportunity for comparing the different methods of proceeding in their respective courts, and the characteristics of their respective judges and advocates. The English trials are ten, the Scottish three, and the Irish two in number: and whether they are precisely those which could have been most advantageously selected, it were needless, for present purposes, to inquire. Mr Townsend made his choice, and thus generally states his objects and intentions: —

"The present edition of Modern State Trials is meant to include those of the most general interest and importance which have occurred during the last thirty years. None are inserted in these volumes which have been previously comprised in any collection; but the editor regrets want of space, which compels him to omit several not uninstructive. In making a selection, he has endeavoured to present a faithful, but abridged, report of such legal proceedings as would be most likely to command the attention of all members of the community, and to be read by them with pleasure and profit. This appears to be the popular description of the term "State Trials," in which Mr Evelyn and Mr Hargreave acquiesced, or they would not have included convictions for witchcraft, and the prosecution of Elizabeth Canning for perjury, in their collection. Were the definition restricted to political offences merely, the work, however logically correct, would be wanting in spirit and variety." – (Introd. vol. i. p. 5.)

After stating that no technical objection can be raised to those of the above trials which immediately affect the State, he observes, that, "for the propriety of inserting the rest under the same title, a just apology may be made." The trial of the Earl of Cardigan, before the House of Lords, is represented as interesting, from the rank of the accused and from the rarity of the trial, as being the first time that duelling was attempted to be brought within a recent statute, (1 Vict. c. 85) enacting that the shooting at a person, not with premeditated malice, but deliberately, and causing a bodily injury dangerous to life, should be a capital offence; and that whoever should shoot any person with intent to commit murder, or to do some grievous bodily harm, should, though no bodily harm were inflicted, be guilty of felony, and liable to transportation or imprisonment. The social position of the titular Earl of Stirling, and the extraordinary nature of the evidence, are said to justify the insertion of his trial; while, "in the records of criminal jurisprudence, there occur few proceedings of more deep and painful interest than the prosecution of Lord Cochrane, for Conspiracy to commit a fraud on the Stock Exchange." The two cases of Courvoisier and M'Naughton respectively "involve topics of absorbing interest at the period of the occurrence, and of enduring interest to all time: in the one being involved the rights and duties, the privileges and immunities of counsel for prisoners; in the other, the fearful question of responsibility for crime – how far moral insanity alone may exonerate the alleged subject of it from the temporal consequences of his guilt." This latter topic is also involved in Oxford's case. The trials of Mr Stuart for killing Sir Alexander Boswell, and of Mr Moxon for blasphemy, are inserted for one and the same reason – namely, "a desire to embalm the very beautiful speeches of Lord Cockburn, Lord Jeffrey, and Mr Justice Talfourd." As to the trial of Ambrose Williams, it is inserted on account of the celebrated speech in defence by Lord Brougham – "one of the most vivid specimens extant, in either ancient or modern literature, of keen irony, bitter sarcasm, and vehement vituperation." The prosecution of the Wakefields for conspiracy, and the abduction of Miss Turner, "forms a singular chapter in legal history; interesting not less to the student of human nature, on account of its characters and incidents, than to the lawyer, for the elaborate discussions on the Scottish law of marriages, and the right of the wife, even should there have been a legal marriage, to appear as a witness against the offending husband – matters argued with profuse learning and ability."

"In setting forth, under a condensed form," says Mr Townsend,³ "this and the other most interesting trials of our time, it has been the object of the editor to free the work from dry severity by introducing the 'loci lætiores' of the advocates, the salient parts of cross-examination – those little passages of arms between the rival combatants which diversified the arena, the painting of the forensic scene, the poetry of action of these legal dramas. He has sought to give the expressed spirit of eloquence and law, upon occasions which peculiarly called them forth; pruning what was redundant, rejecting superfluities, weeding out irrelevant matter, but omitting no incident or episode that all intelligent witness would have been disappointed at not hearing."

 

We present the ensuing paragraph, which immediately follows the preceding, because it will afford us an opportunity of making a remark which is applicable to the entire structure of the work before us.

"In the extracts here given from some of the most celebrated speeches of modern days, the editor has also had the great advantage of the last corrections of the speakers themselves, and has thus been enabled to preserve the ipsissima verba, by which minds were captivated and verdicts won; those treasures of oratory which would have gladdened the old age of Erskine, could he have seen how his talisman had been passed from hand to hand, and the mantle of his inspiration caught. The vivid appeals of Whiteside, the magnificent defence of Cockburn, the persuasive imagery of Talfourd, will exist as κθηματα ἑις αεἱ – trophies of forensic eloquence, beacon lights it may be, in the midst of that prosaic mistiness which has begun to creep around our courts."

The remark to which we have alluded is this: that the work before us is pervaded by a tone of uniform, excessive, and undistinguishing eulogy, which, however creditable to the amiable and generous dispenser of it, is calculated to lower our estimate of his critical judgment, and even – unless one should be on one's guard – to provoke a harsh and disparaging spirit towards the subjects of such undue eulogy, and a suspicion that here "praise undeserved," and the remark is applicable equally to praise "excessive, is censure in disguise!" No judge, no counsel, can say or do anything, in the course of any of the trials here brought under our notice, without speaking and acting in such a way as to merit applause for exhibiting the highest qualities of mind and character. Let it not be supposed, that, in making these observations, we wish to apply them to the particular instances cited by Mr Townsend of Messrs Whiteside, Cockburn, and Talfourd – all of whom are distinguished, accomplished, able, and eloquent advocates; but we believe that each would, in spite of the fondest self-love, in his own mind, somewhat mistrust his title to the amount of applause here bestowed upon him. What more than he has said of them, could he have said of the greatest orators and advocates whom the world has produced? In a corresponding strain, Mr Townsend speaks of every one – senior and junior counsel – and every writer, great and small, whom he has occasion to mention. Those who knew the late Mr Townsend, and appreciated his simple and manly character, will refer the defect which we have felt compelled thus to point out to its true cause – the kindliness of his heart; and we believe that, had he lived to see these observations, his candour would have caused him promptly to recognise their justice.

Each of the trials is preceded and followed by "Introductory Essays" and "Notes."

"The Essays, chiefly historical, have been introduced in order to familiarise the reader with the subject, and prevent the monotony which, but for these occasional dissertations, might pervade so many recurring trials. The notes are added with a similar object."⁴ We may say generally, that these "Essays" and "Notes" always display judgment, and the writer's complete knowledge of his subject. No reader should enter on the trial, without carefully perusing the "Essay" which ushers it in, shedding light upon all its details, and the circumstances attending the committing of these offences – and indicating with distinctness the leading features of interest and importance. In the report of the trial itself, great pains have evidently been taken, and successfully, to observe rigid impartiality, and secure accuracy of statement; and the conflicts of counsel with each other and with witnesses – the temperate, and timely interpositions of the judges, and their satisfactory summings-up to the jury – are presented to the reader with no little vividness. The fault of Mr Townsend's style is, diffuseness, a tendency to colloquiality, and a deficiency of vigour. With these little exceptions, added to that above noticed, we have no hesitation in commending these volumes as an acquisition to popular and professional literature, reflecting credit on the author's memory, and the bar to which he belonged.

Having thus briefly indicated the general character of this work, and given the author's own account of it, we propose in the present, and one, or perhaps two, following articles, to take our own view of some of the leading "Trials" thus collected by Mr Townsend, incidentally observing on his treatment of the subject. With him, we regard several of these trials as exhibiting features of remarkable interest; and are much indebted to him for having so disposed his materials as to rouse and rivet the attention of all classes of intelligent readers, but in an especial degree that of the youthful student of jurisprudence. Without further preface, we shall commence with that which stands first in Mr Townsend's collection – the trial of Frost, for high treason.

This affords a very favourable specimen of Mr Townsend's capabilities. He appears to have worked it out perhaps more exactly to his own idea than any of the ensuing ones; and, by his able and judicious treatment of the subject, has given us an opportunity of exhibiting in glowing colours a forensic battle-field: the stake, life or death; the combatants, evenly matched, the very flower of the bar; their tactics clear and decisive, with the odds tremendously against one party – that is to say, facts too strong for almost any degree of daring or astuteness to contend against hopefully. Let us see, under such circumstances, how the combatants acquitted themselves; or, if one may change the figure, let us see how was played a great game of chess on the board of life, by skilful and celebrated players. Who were they? Four in number – Sir John Campbell and Sir Thomas Wilde, then respectively Attorney and Solicitor-General, representing the Crown; Sir Frederick Pollock and Mr Fitzroy Kelly, Queen's Counsel for the prisoner. Ten years have since elapsed, and behold the changes in the relative positions of these gentlemen! Sir John Campbell is a peer of the realm, and Lord Chief-Justice of the Queen's Bench: having also, during the interval, become a laborious and successful biographer of the Lord Chancellors and Lord Chief-Justices of England. Sir Thomas Wilde is also a peer of the realm, and Lord High Chancellor, having been previously Attorney-General and Chief-Justice of the Common Pleas. Sir Frederick Pollock, having been subsequently appointed Attorney-General, is now Chief Baron of the Exchequer; while Mr Kelly, having since become Solicitor-General, lost office on the break-up of Sir Robert Peel's ministry, and remains – such are the chances and changes of political life – plain Sir Fitzroy Kelly, but occupying a splendid position at the bar. These four were the leading counsel; but besides the Attorney and Solicitor General, the Crown was represented by two gentlemen of great legal learning and eloquence, since raised to the bench – Mr Justice Wightman and Mr Justice Talfourd; and by Mr Serjeant Ludlow, since become a Commissioner of Bankruptcy; and the Hon. John C. Talbot, now so highly distinguished in Parliamentary practice. The judges sent as the special commission consisted of the late Chief-Justice Tindal, the present Mr Baron Parke, and the late Mr Justice Williams, forming, it is superfluous to say, an admirably constituted court – the chief being most consummately qualified for his post by temper, sagacity, and learning.

It was the business of the Attorney and Solicitor General to establish a case of high treason against the prisoner, and of Sir Frederick Pollock and Mr Kelly to defend him à l'outrance; but God forbid that we should say per fas aut nefas. It were idle to characterise the intellectual and professional qualifications of these four combatants; the eminence of all is undisputed, though their idiosyncrasies are widely different from each other. Suffice it to say, that everything which great experience, sagacity, learning, power, and eloquence could bring to bear on that contest might have been confidently looked for. One circumstance is proper to be borne in mind – that the prisoner's counsel (of course abhorring the acts imputed to their client) were stimulated to the very uttermost exertion by the fact that their own political opinions were notoriously adverse to those entertained by the prisoner, and those – viz., Chartists – who so confidently summoned two Tories to the rescue of their imperilled brother Chartists.