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PREFACE TO THE AMERICAN EDITION OF
LORD ERSKINE’S SPEECHES
THE Editor avails himself of the
opportunity which the present publication of the forensic speeches of the first
legal orator of the age affords, to exhibit a brief outline-view of the relative
power of the Bar of America and the Bar of England.
However paradoxical it might appear to those who have not much considered the
subject, it is asserted, because it can be demonstrated, that, at present^ there
is actually a greater aggregate amount of talent employed and exhibited at the
American, than at the English Bar.
Indeed, other things being equal, the Bar of the United States ought to shew
forth a greater general average display of talent, more particularly, in the
extemporaneous, unpremeditated effusions of public speaking, than is manifested
by the combined efforts of all the legal combatants in the British Isles. For,
in this country, there is no other outlet for the first-rate talent of her
children, than that of the profession of the Law.
The nature of our political institutions forbids any hope of our Statesmens
acquiring any permanent power, or extensive wealth and influence in the
community; and consequently, offers no adequate inducement for the primary
talents of the country to devote themselves exclusively to a life of politics.
Whence the state, that is to say, the government, whether national or of each
single state, seldom, or never commands for its permanent service, the
first-rate abilities of America.
And yet it requires nothing less than a capacity of the very highest order to
discern and to influence the dispositions and the habits of the American people
to develope the bearings and tendencies of their governmentto fathom, and to
call into prompt and persevering action, their national resources to comprehend
and to appreciate the complicated interests, the multiplied relations, the
ever-varying political aspect of a country, whose institutions are all founded
on the basis of popular authority, and universal suffrage^—a country, whose
dominion has no parallel m any other government, ancient or modern —having in
itself twenty separate independent sovereignties, each sovereignty containing
its own distinct state-executive, legislative, and judicial departments together
with a Federal^ or Genend head, having also its own separate, superintending,
executive, legislative, and judicial branches of government.
It cannot be doubted, that the voting by ballot,—the right of universal
suffrage,-^—the perpetually recurring elections of federal executive, federal
senators, and federal representatives of state-executive, state-senators, and
state-representatives of both federal and state charterofficers and servants
together with many other practical comments upon the inferences and speculations
of metaphysical politicians; and political metaphysicians, are all made in the
United States, under the most favourable of all possible circumstances;— namely,
a comparatively scanty population spread over an immense territory,—a propitious
climate, and a fertile soil,—a large body of independent yeomanry, who are, for
the most part, lords of the land which they occupy,—a very genend diffusion of
property throughout all the orders of society,—the almost universal prevalence
of elementary and popular intelligence throughout all the classes of the
community,—and the most jealous, fearful, systematic exclusion of the two only
natural and effective aristocracies of man, talent and property, from all
political influence and power.
Nor are the pulpits of America sufficiently cherished by the national or the
state-governments,—nor sufficiently encouraged by public opinion, to offer an
adequate bounty of stipend. reputation, and influence, often to seduce into
their service the devoted, the effotts of over-bearing, comprehensive, paramount
talents.
The Navy and the Army of this country, have not yet grown up to a sufficient
sire and extent of magnificence, and splendour of heroic achievement, to
vindicate to themselves the employment of the highest order of American genius.
These two illustrious professions must experience many years of mush more active
and extensive service than they have ever yet seen, before they can allure to
their paths of peril and of glory, their due proportion of the dominant mind of
the country.
And in no community on the globe, have trade and mechanics, die plough, and the
loom, taken unto themselves permanently, the exertions of very commanding
abilities. If time and circumstance cast primary native genius into either of
these occupations, after a few desperate struggles of agony, it either seeks
refuge in the tomb, or, bursting asunder the bonds of its condition, springs
upward into a region of intellect better fitted to its inclination and capacity.
The Bar then, is the great, the sole repository of all the highest talents
produced, and reared in the United States. The primary native genius of this
extensive country flocks to the legal standard, as offering'the highest
inducements of reputation, wealth, influence, authority, and power, that the
community, in its present circumstances, can give Butin Britain, her political
institutions, her local situation, and the circumstances of Europe, continental
and insular;— nay, the condition of the whole world itself, both civilized and
barbarous-more especially, during the lapse of the last thirty years, have all
conspired to force her primary talents into the service of her Parliament, her
executive cabinet, her army, her navy, her church, both national and dissenting,
established and tolerated, her colonial governments, her diplomatic squadrons.
While her Bar has been left to explore the mazy labyrinths of Jurisprudence by
the feebler lights of secondary minds. >
The time has been, indeed, when she availed herself of her first-rate capacities
in the labours of the law. She has seen Bacon, and Hale, and Mansfield,
strengthen, adorn, illumine, dignify her seats of Justice. But that was a period
when these great masterspirits were wanted to build up, and cope in, to the
fulness of perfection, her system of Jurisprudence; to reduce the judicial
decisions of her various courts of equity and of common law, to one uniform
level of wisdom, justice, and certainty, throughout all the reach of her
extended empire. It was also at a time, when her political cmum-stances were
such, as permitted her to spare a portion of her primary talent to rear the
infancy, and to establish the manhood of Ker legal system.
But during the last thirty years, so great and so continued has been the
pressure of her political condition, that she has been compelled to pour out
nearly all her first rate intellect over the whole of her own dominions,
comprehending at least of the habitable globe, in the persons and the exertions
ofher executive statesmen, and senators, and provincial governors;—and to spread
that highest flood of intellectual light over all the rest of the civilised
world, in the persons and the exertions of her naval heroes, and her land
Warriors, and her ambassadors. And, consequently, as primary talent is never
produced, excepting in very small quantities, in any given age and country, she
has been scarcely able to spare any of it permanently to the service of the Bar
; but the moment she has discovered it to have accidentally strayed into the
precincts of the Forum, she has immediately called it thence into the upper
regions of the state;—as she did her Burke, her Pitt, her Grenville, her
Canning, and her Brougham.
Whence, as native genius is equally distributed, both as to quantity and
quality, over all the nations and sections of the earth, and differs only in
different countries, in the amount of its developement, and effectual display,
according to the circumstances in which it is placed, whether favourable or
unpro-pitious for the full, unfolding, and extensive exercise of its powers;—and
as the American Bar employs all the first-rate talents of the United States,—and
the British Bar uses only the secondary capacities of Britain,—it inevitably
follows, that, other things being equal, the American Bar must maffii-feat a
greater general average display of ipteUecpial power than is afforded in the
British Forum, more especially, in the exhibition of extemporaneous eloquence.
Nevertheless, within the memory of man, the BritishBar han seen her vanguard led
by Mansfield, Thurlow, and Loughborough-three illustrious Lawyers, who were
equalled by few, and by none surpassed, in the heighth, and depth, and breadth,
and compass, and variety of wisdom and eloquence* And now, even now, in this,
her day of degeneracy, —her age of secondary lawyers, the forensic labours of
the Bar of England have been conducted to perfection by Mr. Erskine's most
felicitous combination of profound legal argument with splendid eloquence.
Perhaps it is not going too far to say, that the speeches of Mr*. Erskine, now
presented to the public, are the most finished specimens of tar-eloquence, that
any age or country has produced* When I say this, I take it for granted, the
reader bears in mind the marked distinction between the forensic and the
Parliamentary orations of Demosthenes and Cicero- Their tar-speeches are not
equal to those of Mr* Erskinebut there is no assignable proportion between the
forensic effusions of these Greek and Roman orators, and the legislative energy
of Demosthenes, or the Senatorial majesty of Cicero.
Few men have ever lived, who, like Erskine, could unite so much fire and
eloquence, such intense heat of passion, such brilliancy of imagination, such
extensive, yet selected command of language, with so much clearness of argument,
such closeness of reasoning, such nice, acute, subtle discrimination* The
prominent feature in the character of Mr* Erskines bar-eloquence is, that in no
one sentence does he ever lose sight of his eause, his client, his verdict. And
while he is melting the hearts, inflaming the passions, and dazzling the
understandings of his audience, he has always his own oratory under such perfect
controul, as never to omit even the minutest details that may serve to give a
favourable complexion to his cause* He is, indeed, unri-ualled in the skill with
which he has bent down the genius of an orator of the highest order to the
practical dexterity of a consummate advocate.
He who speaks mere than is necessary on any public occasion, makes his speaking
an end he who speaks enough, and no more, uses his eloquence as the meme of
obtaining some ulterior end, some greater objects—The lost is the most
effective, practical being. Julius Casar always said enoughCicero sometimes said
more than enough; and Casar bore Cicero down by the superior weight of his
brain; by the more efficient energy of his practical wisdom. Many other great
men, besides Cicero, have in this respect, erred;—and have lost sight of their
existing object?—of the business they had to perform, in the eagerness of their
anxiety to achieve a brilliant oration.
Gentlemen who are in training for the Bar, are more particularly interested in
observing, and in acting upon this distinction;—not only, because those among
them who happen to possess genius, are prone, in common with all powerful minds,
to give the reins to their imagination, and permit the spirit of their heated
enthusiasm to swing and sweep beyond the flaming bounds of space and time?—extra
flam-mantia mania mundi but also, because the Law itself,—occupied as it is, in
watching over the little, multiplied details of human life, and trammelled up,
as it is, by the use and practice of a certain, precise, defined, ascertained
phraseology, sanctioned by immemorial custom, and, although usefill, not
necessarily, nor inseparably allied to elegance, can seldom be prevailed upon to
tolerate in a fereneie speaker the bursts of deep, intense, genuine passion,—or
a rich variety of imagery,—or extatic flights of poetry,—or the finer touches of
extreme tenderness,—or the heavenly visions of a sublimated philosophy,—or the
majestic amplitude of • style full, sonqrous, flowing, fervid, and replete with
energy and animation.
“Monte decurrens velut amnis,
imbres Quem super notas aluere ripas,
Ferret, immensusque ruit profundo
Pindarus ore.”
It is also necessary to bear in mind a broad and marked distinction between the
eloquence of ancient and of modern days. The ancient statesmen made it the main
business of their lives to become great proficients in the art of public
speaking; and consequently, if we allow the modern orators to possess native
talents equal to those of Cicero and De* mosthenes, yet as they do not bestow
the same intense and Ulwir nn dig study nf thmr art, modern oratory cannot
attain die elevated standard of that of antiquity. It must be inferior in
methodical composition,—in the distribution of the subject,—in* the stjde,
elaborated to perfection by die combined efforts of persevering study and
exalted genius', —in the mode of delivery, refined and purified by a long course
of the most exact discipline,—in die exquisite union of refinement with the most
perfect air of simplicityin the happiest combination of art with nature.
For full proof of the fact now asserted, the reader is confidently referred to
the dehberatwe speeches of Demosthenes, and the Senatorial orations of Cicero,
as compared with the Parliamentary and Congressional effusions of modern
debaters.
Yet, doubtless, the extemporaneous reasoning and declamation of modern times are
much better fitted for transacting the business of real life, than are the more
highly adorned and finished compositions of antiquity. And therefore, as all
life consists essentially of action, it is, perhaps, wiser for public men, more
particularly for lawyers, whose whole business it is to be occupied in the
transactions of real life,—to accustom themselves to the habit of extemporaneous
speaking, which, although it can never render them such regular and finished
orators, as Greece and Rome boasted of in their best days of high and palmy
greatness,—will yet render them much more able to discharge with credit to
themselves, and with benefit to the community, those various important and
difficult duties which must ever be devolved upon genius and wisdom, amidst the
ceaseless activity of commercial enterprize, and the everlasting agitations of
popular freedom.
Can it be incumbent on the Editor of these orations, to inculcate the necessity,
and to expatiate upon the benefit of an earnest,'intense, habitual study of the
best recorded speeches, both of ancient and of modern times?
It requires but little knowledge, and less reflection, to perceive, that such
compositions contain a vast fund of moral, political, financial, commercial, and
legal informationde* livered by the ablest men of the most civilized countries,
in their most cultivated ages, as the last result of their happiest intellectual
efforts, under the fullest inspiration of excited genius, giving vent to its
effusions in thoughts that breathe^ and words that bum. They furnish the best
models of clear, profound, comprehensive, conclusive reasoning, mined and
adorned by all the brilliancy of splendid eloquence. They afford the finest
exercise to the analytical yowtT* of the student’s mind, while tracing the
golden links of their chain of argumentationand they enlarge his understand* ing
and elevate his imagination, by opening to him the richest treasures of lofty
sentiment and extensive thought; glistening in all the splendour of the most
felicitous combinations of selected, appropriate, and copious language.
New-York,
May 25, 1813.
PREFACE TO THE ENGLISH EDITION
On reading lately a collection of
celebrated Speeches of the Master of the Rolls of Ireland, when at the Bar in
that country, where he so long maintained the highest reputation, the editor was
forcibly struck with the following passage in the Preface to the Second Edition,
published at Dublin last year:
"It is much to be regretted that Mr. Erskine’s Speeches, as an advocate, have
not been yet published in a separate u volume. They are only to be found in
printed reports w of the trials in which he was engaged; and from the diffi-u
culty which the Editor of the present volume has experienced in collecting those
of Mr. Curran, it is probable that, in a few years, to procure Mr. Erskine’s
Speeches will be impossible.”
This suggestion determined the Editor no longer to delay the publication of as
many of the genuine Speeches of Lord Erskine as he could collect, which he had
long intended to do, and which indeed he had begun several years ago, but found
difficulties in the way.
It is indeed surprising how very few of the real Speeches of eminent Counsel
have been preserved. Many of the printed Trials in circulation are the abridged
reports of persons not acquainted with short-hand writing, and contending
besides for the earliest publication, on occasions interesting to the Public,
and do not convey any idea of the eloquence of die English Bar, the monuments of
which, more especially in cases connected with the constitution of the
government and with public liberty, ought to be carefully preserved as part of
the history and character of our country.
It is much to be regretted that English State Trials are so little known ; they
have hitherto been printed in folio, and are only to be found in the possession
of lawyers, or in great libraries; whereas they ought to be universally
circulated throughout the country, where the prudent assertion of invaluable
privileges depends so much upon a perfect acquaintance with the principles on
which they rest, and where the common classes of the people are called upon
daily to assist in the administration of criminal justice, in cases too where
the stability and security of the government on the one hand, and the lives and
liberties of the subject on the other, may depend upon an enlightened judgment.
On this account we have seen, with much satisfaction, the progress of Mr.
Cobbett’s edition of the State Trials, now printing in octavo $ which appear
from the nous, to be superintended with very great legal information and remark,
and which we hope will in the end embrace all the important proceedings in our
Courts of Criminal Justice.
We cannot better illustrate what we have before observed, of the scarcity of
genuine Trials, than by saying, that the Speeches of Lord Erskine, when at the
Bar, which we now publish, do not fill up the pleadings of three weeks, out of a
life of nearly thirty years incessant occupation in all our courts of justice
throughout the kingdom.
We have taken the assistance of a Gentleman well acquainted with legal
proceedings, to state the occasions on which the Speeches collected were
delivered, with as much of the circumstance, and of the evidence upon the
trials, as was thought necessary to illustrate the argument.
It was our original intention, in pursuing this course, to have printed only the
Speeches of Lord Erskine, which it was our sole object to collect; but as we
advanced to occasions very near our own times, we were desirous to avoid even
the appearance of supporting or qualifying the foundations and merits of public
prosecutions of a peculiar class ; and in those cases, therefore, we have
printed also the Speeches of the Advocates, which have indeed tended farther to
illustrate the arguments which it was our design to preserve.
In preparing the Prefaces to the Speeches, the Editor has carefully abstained
from all observations upon their merits or character, wishing that every reader
should be left to judge for himself, assisted as the Public now^re by the many
able and independent criticisms, which contribute so much to the advancement of
learning in this island.
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