Page images

reign of terror, were the horrid cruelties of Carrier, his wholesale massacres of all ages and both sexes, accompanied with every kind of hideous outrage, not only upon humanity, but upon public decency. Of this the only notice taken is, "that Carrier had taken a very active part against the rebels in that department; made an able and argumentative defence, but was condemned."-(Ann. Reg. 1795, p. 393.) But no further illustration is wanted of the manner in which men's narratives are tinged by their party prejudices.

We have noted another cause of error combined with these prejudices in misleading Lord Cockburn, the love of collecting anecdotes, and of retailing them. The work before us really owes its existence to this propensity; and there can be no doubt that, like most celebrated individuals, of whom Sir Walter Scott must be counted one, he entertained society with these narratives. Such writers almost unavoidably fall into the bad taste of adorning their subject with some traits from fancy rather than memory, and the merriment of listeners, much more than their applause, encourages a good-natured person to be little sparing of the ornaments which give pleasure. Repeated narration soon makes the historian really believe all the added particulars to be only representation of the fact. We are now speaking, no doubt, hypothetically, and without the least knowledge of the party, excepting what the book affords. But there is a constant recurrence of passages which manifestly owe their interest to colouring and exaggeration. We may possibly give a few instances before we close these remarks; but we now hasten to set right his lordship's statements respecting some of the judges, when he speaks personally, with unjustifiable severity, or with misplaced levity.

[ocr errors]

Among these he singles out as the chief object of his vituperation Lord Braxfield, for many years at the head of the Criminal Court, -a man certainly of the greatest eminence among the first lawyers of his day, as certainly a man of coarse manners, and of considerable violence in his opinions,

The only trace we find of right feeling in the different parts of this work is an expression of some religious feelings upon the outrages of the atheistical fanatics.

and in the language in which he gave them expression. But Lord Cockburn charges him with "the indelible iniquity of the political trials of 1793 and 1794," and at once says, in so many words, that "he was the Jeffries of Scotland" (p. 116). He adds that he was the "only very powerful man the Court contained, and the real director of its proceedings; that the Reports make his abuse of the judgment-seat bad enough, but that "his misconduct still more transpired in casual remarks," of which he professes to give some. We have examined the Reports, which are all to be found in vol. xxiii. of the State Trials, so ably and carefully edited by Mr. Howell, and we find nothing whatever to maintain the charge against Lord Braxfield. He concurs in the sentences moved and supported by his five brethren ;. and it must be observed of those sentences, that excepting in the cases of Muir and Gerrald, perhaps also of Margaret, the sentences about the same time pronounced in England were more severe, and even long afterwards, for the same offences. Thus one of the Scotch prosecutions was for seditious and inflammatory language addressed to soldiers of the garrison, and the punishment was nine months' imprisonment; whereas we have seen a heavier punishment, many years after the heats of the times had passed away, inflicted for one part only of the same expressions (cursing the King), and without the great aggravation of the military audience. Another case was for a most virulent libel upon the Constitution and the Sovereign; the punishment was six months' imprisonment to the author, and three to the printer. Frost, in England, was imprisoned six months, and stood in the pillory, beside being struck off the roll of attorneys, for saying he was for equality and against having kings. Gilbert Wakefield was imprisoned two years for a general approval of the French Revolution, and saying what the Court deemed to be things that had a tendency to relax the zeal of the people in resisting the French, whom the judge, in passing sentence, described as "those monsters of iniquity who in ten years had been Catholics, Deists, Atheists, and Mussulmen." Kyd Wake, for shouting and hissing on the King's passing to Parliament, and using insulting expressions; as, "No George!" "No war!" was sentenced to five years' im

[ocr errors]

prisonment and the pillory. Wm. Winterbotham, a dissenting clergyman, for preaching two sermons, in which he praised the French Revolution, and said it had opened the eyes of Englishmen, who would no longer bear to be misgoverned, was sentenced to four years' imprisonment on two prosecutions tried before the same judge at the same assizes, and sentenced by the Court of King's Bench, although that judge had strongly summed up for an acquittal in one of the cases; but Baron Perryn laboured under the suspicion of holding liberal opinions, in which Lord Kenyon certainly did not share. Had the same discrepancy been shown in Scotland, the Justice Clerk would no doubt have been most severely reproved by his political adversaries; but no one in England ever dreamt of comparing Lord Kenyon to Jeffries. The sentences on the men of superior talents and station were, no doubt, much to be lamented, and to be disapproved; but that the extreme punishment which they awarded was according to the law of Scotland is undeniable; and we conceive that the contrast which those sentences present to the milder ones upon inferior persons was in a great degree owing to the Court believing they had now before them the leaders of the evil-disposed, and being determined to deal with them more severely than they had done with men in an humbler condition.

That Lord Braxfield had any more prominent share in those sentences than his brethren, does in no manner of way appear; and in the trial of the cases nothing whatever occurred to call for an observation. It is true that Margaret and Gerrald took an objection to his sitting, upon the ground of some hasty expression alleged to have been used by him, in a private company, respecting the body called the British Convention. The other judges, to whom this point was referred, would not suffer it to be gone into, holding that it afforded no ground of declining the Justice Clerk's jurisdiction, even if the words were proved to have been spoken; and undoubtedly nothing was alleged that amounted to any prejudication of the accused parties, how indecorous soever such strong language might be, if used by a judge, even in private society. There was indeed, in Gerrald's case, one interruption of the eloquent speech of the

prisoner; an interruption showing sensitiveness, without much accuracy, on the subject of Christianity. Gerrald had said that all great reforms were innovations ;-the Revolution, the Reformation, and Christianity itself; on which Lord Braxfield said, "He has been attacking the Constitution, and now he is attacking Christianity itself." There was here a confusion of ideas unaccountable in so very acute a person; because the whole force of the argument consisted not in attacking religion, but in holding it entitled to the utmost veneration. But the horror of innovation plainly misled the judge; he was beguiled, as possibly Burke himself might have been, by that horror, into the notion that to charge anything as an innovation was to condemn it. Indeed, one of the other judges seems to have felt somewhat of the same horror; for he describes the comparison of the Revolution of 1688 as constituting "a most indecent defence, and which no one but a stranger would have been allowed to offer upon his trial." But Lord Cockburn is not satisfied with this charge against Lord Braxfield. He says that the "reporter could not venture to make the prisoner say more than that Christianity was an innovation; but the full truth is, that he added that all great men had been reformers, even our Saviour himself." The report of the trial in Mr. Howell's collection, to which Lord Cockburn's reference is made, bears plain internal evidence of having been revised and corrected by Gerrald himself. There is therefore no ground whatever for alleging that anything is suppressed. But Lord Cockburn proceeds to supply what he considers wanting, and he adds, that upon Gerrald naming our Saviour himself as an innovator, Lord Braxfield "chuckled, in an under-voice, 'Muckle [much] he made o' that; he was hanged."" Now we have made full inquiry into this most extraordinary assertion, and we find that the words put into the judge's mouth were known in Edinburgh to be a mere invention, a jest that passed current at the time, and was, by all who heard it, known to have-most men said— no foundation at all, while some few believed, or affected to believe, one part of the dictum, saying that Lord Braxfield might have muttered "Muckle he made o' that;" but all, without exception, utterly denied the grossly indecent addition.

The improbability, indeed, of the story is manifest, but most especially is it evident that if the words had been used, they could only have been heard by the two judges sitting close by the chief. This we are informed must have been the case, from the position of the judges and the construction of the court. Then no one can suppose it possible that these only listeners should have repeated the thing. But for our peremptory contradiction of the story we refer rather to what is well known to all who lived at the time, that the speech was universally treated as a mere jocular invention, by way of very gross caricature of the chief.

The holding up Lord Braxfield as the Jeffries of Scotland is if possible more intolerable. None, even of that most able and learned, though coarse and even violent judge's enemies, ever presumed to insinuate the least suspicion of corruption against him. Nay, all who were acquainted with him have borne testimony to his amiable and kindly disposition. He is described by the late venerable Lord President Hope, in a letter which appeared in the first number of the Law Review, vindicating him from another calumny circulated on Sir Walter Scott's authority, as a person of a kindly nature, and a warm and steady friend. He is well known to have had an extreme abhorrence of anything mean and base, and his feelings were more warm than even his temper was hasty. That he was of the most scrupulous integrity, of the highest sense of honour in all respects, both public and private, none have ever doubted; and this is the person whom Lord Cockburn, inspired with the bitter feelings of party, thinks it fit to compare with the worst man, the most profligate and corrupt judge, that ever polluted the Bench, a person whose cruelty was exceeded by his scandalous and his even ostentatious dishonesty, and who has left to all ages a name that cannot be pronounced without a shudder, as designating one who was, for every vile and bad passion, a disgrace to human


There are manifest indications of caricature in many parts of the book. The accounts of several of the judges, as regards their personal peculiarities, seem plainly of this description; but, generally speaking, they do not redound to the discredit of the

« PreviousContinue »