Erskine - The Treason Trials of 1794
The 1794 Treason Trials, arranged by the administration of William Pitt, were intended to cripple the British radical movement of the 1790s. Over thirty radicals were arrested; three were tried for high treason: Thomas Hardy, John Horne Tooke and John Thelwall. In a repudiation of the government's policies, they were acquitted by three separate juries in November 1794 to public rejoicing. The treason trials were an extension of the sedition trials of 1792 and 1793 against parliamentary reformers in both England and Scotland.
The historical backdrop to the Treason Trials is complex; it involves not only the British parliamentary reform efforts of the 1770s and 1780s but also the French Revolution. In the 1770s and 1780s, there was an effort among liberal-minded Members of Parliament to reform the British electoral system. A disproportionately small number of electors voted for MPs and many seats were bought. Christopher Wyvill and William Pitt the Younger argued for additional seats to be added to the House of Commons and the Duke of Richmond and John Cartwright advocated a more radical reform: "the payment of MPs, an end to corruption and patronage in parliamentary elections, annual parliaments (partly to enable the speedy removal of corrupt MPs) and, preeminently and most controversially, universal manhood suffrage". Both efforts failed and the reform movement appeared moribund in the mid-1780s.
Once the revolution in France began to demonstrate the power of popular agitation, the British reform movement was reinvigorated. Much of the vigorous political debate in the 1790s in Britain was sparked by the publication of Edmund Burke's Reflections on the Revolution in France (1790). Edmund Burke is generally credited as being the father of the modern Conservative Party. In Reflections he argues that citizens do not have the right to revolt against their government, because civilizations, including governments, are the result of social and political consensus. If a culture's traditions were challenged, the result would be endless anarchy. There was an immediate response from the British supporters of the French revolution, most notably Mary Wollstonecraft in her Vindication of the Rights of Men and Thomas Paine in his Rights of Man.
1792 was the "annus mirabilis of eighteenth-century radicalism": its most important texts, such as Rights of Man, were published and the influence of the radical associations was at its height. In fact, it was as a result of the publication of the Rights of Man that such associations began to proliferate. The most significant groups, made up of artisans, merchants and others from the middling and lower sorts, were the Sheffield Society for Constitutional Information, the London Corresponding Society (LCS) and the Society for Constitutional Information (SCI). But it was not until these groups formed an alliance with the more genteel Society of the Friends of the People that the government became concerned. When this sympathy became known, the government issued a royal proclamation against seditious writings on 21 May 1792. In a dramatic increase compared to the rest of the century, there were over 100 prosecutions for sedition in the 1790s alone, as you have probably gathered if you have read any of Curran's or Erskine's speeches.
The British government, fearing an uprising similar to the French Revolution, took even more drastic steps to quash the radicals. They made an increasing number of political arrests and infiltrated the radical groups; they threatened to "revoke the licences of publicans who continued to host politicized debating societies and to carry reformist literature"; they seized the mail of "suspected dissidents"; and they supported groups that disrupted radical events and attacked radicals in the press. Additionally, the British Government initiated the Aliens Act of 1793 in order to regulate the entrance of immigrants into Great Britain. Essentially, the Aliens Act enforced that aliens be recorded upon arrival and register with the local justice of the peace. Specifically, immigrants were required to give their names, ranks, occupations, and addresses. Overall, the Aliens Act reduced the number of immigrants into Great Britain out of fear that one of them may be an unwanted spy. Radicals saw this period as "the institution of a system of terror, almost as hideous in its features, almost as gigantic in its stature, and infinitely more pernicious in its tendency, than France ever knew".
The radical societies were briefly enjoying an upsurge in membership and influence. In the summer of 1793 several of them decided to convene in Edinburgh to decide on how to summon "a great Body of the People" to convince Parliament to reform, since it did not seem willing to reform itself. The government viewed this assembly as an attempt to set up an anti-parliament. In Scotland, three leaders of the convention were tried for sedition and sentenced to fourteen years of service in Botany Bay. Such harsh sentences shocked the nation.
The government, frightened however, arrested six members of the SCI and 13 members of the LCS on suspicion of "treasonable practices" in conspiring to assume "a pretended general convention of the people, in contempt and defiance of the authority of parliament, and on principles subversive of the existing laws and constitution, and directly tending to the introduction of that system of anarchy and confusion which has fatally prevailed in France". Over thirty men were arrested in all. Of the people arrested were Thomas Hardy, secretary of the LCS; the linguist John Horne Tooke; the novelist and dramatist Thomas Holcroft (arrested in October); the Unitarian minister Jeremiah Joyce; writer and lecturer John Thelwall; bookseller and pamphleteer Thomas Spence; and silversmith and, later, historian John Baxter.
After the arrests, the government formed two secret committees to study the papers they had seized from the radicals' houses. After the first committee report, the government introduced a bill in the House of Commons to suspend habeas corpus; thus, those arrested on suspicion of treason could be held without bail or charge until February 1795. In June 1794 the committee issued a second report, asserting that the radical societies had been planning at least to "over-awe" the sovereign and Parliament by the show of "a great Body of the People" if not to overthrow the government and install a French-style republic. They claimed that the societies had attempted to assemble a large armoury for this purpose, but no evidence could be found for it. They were charged with an assortment of crimes, but seditious libel and treason were the most serious. The government propagated the notion that the radicals had committed a new kind of treason, what they called "modern" or "French" treason. While previous defendants had tried to replace one king with another from another dynasty, these democrats wanted to overthrow the entire monarchical system and remove the king entirely. "Modern French treason, it seemed, was different from, was worse than, old-fashioned English treason."The treason statute, that of the Act of Edward III from 1351, did not apply well to this new kind of treason. The Attorney-General Sir John Scott, who would prosecute Hardy and Horne Tooke, "decided to base the indictment on the charge that the societies had been engaged in a conspiracy to levy war against the king, that they intended to subvert the constitution, to depose the King, and put him to death; and for that purpose, and 'with Force and Arms', they conspired to excite insurrection and rebellion" (emphasis in original).
Initially the men were confined to the Tower of London, but they were moved to Newgate prison. Those charged with treason faced the brutal punishment of hanging, drawing and quartering if convicted: each would have been "hanged by the neck, cut down while still alive, disembowelled (and his entrails burned before his face) and then beheaded and quartered".The entire radical movement was also on trial; there were supposedly 800 warrants that were ready to be acted upon when the government won its case, and only Erskine stood between the government and a barbaric death.
Hardy's trial was first; his wife had died while he was in prison, generating support for him among the populace. Thomas Erskine, defending again, argued that the radicals had proposed nothing more than the Duke of Richmond (now an anti-reformer) had in the 1780s and "their plan for a convention of delegates was borrowed from a similar plan advanced by Pitt himself". The government could provide no real evidence of an armed insurrection. The Attorney-General's opening statement lasted nine hours, leading the former Lord Chancellor Lord Thurlow to comment that "there was no treason".Treason must be "clear and obvious"; the great legal theorist Edward Coke had argued that treason was to be determined "not upon conjecturall [sic] presumptions, or inferences, or strains of wit, but upon good and sufficient proof". Part of Erskine's effective defence was to dismiss the prosecution's case, as it was based on "strains of wit" or "imagination" (a play on words of the statute itself). He claimed, as he had in the earlier trials, that it was the prosecution that was "imagining the king's death" rather than the defence, and you can read his speech below.
Erskine opening in the case of Thomas Hardy7.83 MB
Erskine speech in the case of Thomas Hardy - Part 27.15 MB
Erskine speech in the case of Thomas Hardy - Part 37.37 MB
Erskine speech in the case of Thomas Hardy - Part 47.45 MB
Erskine speech in the case of Thomas Hardy - Part 57.33 MB
Erskines final speech6.32 MB
His cross-examination of the prosecution's spies also helped demolish their case; he "cross-examined these witnesses in a tone of contemptuous disbelief and managed to discredit much of their evidence", so they are well worth a read.
After a nine-day trial, which was exceptionally long for the time, he was acquitted.The foreman of the jury fainted after delivering his verdict of not guilty, and the crowd enthusiastically carried Hardy through the streets of London.
In his speeches, Erskine emphasized that the radical organizations, primarily the London Corresponding Society and the Society for Constitutional Information, were dedicated to a revolution of ideas, not a violent revolution—they embodied the new ideals of the Enlightenment. Erskine was helped in his defence by pamphlets such as William Godwin's Cursory Strictures on the Charge Delivered by Lord Chief Justice Eyre to the Grand Jury, 2 October 1794.
John Horne Tooke
John Horne Tooke's trial followed Hardy's, in which Pitt was forced to testify and admit that he had attended radical meetings himself. Throughout the trial Horne Tooke "combined the affectation of boredom with irreverent wit". One observer noted that when asked by the court if he would be tried "by God and his Country", he "eyed the court for some seconds with an air of significancy few men are so well able to assume, and shaking his head, emphatically answered 'I would be tried by God and my country, but—!'" After a long trial, he too was acquitted, and you can read Erskines powerful speeches here 6.89 MB and here6.67 MB, that led to John Horne Tooke's acquittal.
All of the other members of the SCI were released after these two trials, as it became obvious to the government that they would not gain any convictions.
John Thelwall was tried last; the government felt forced to try him because the loyalist press had argued that his case was particularly strong. While awaiting trial, he wrote and published poetry indicting the entire process. During Thelwall's trial, various members of the London Corresponding Society testified that Thelwall and the others had no concrete plans to overthrow the government, and that details of how reform was to be achieved were an "afterthought". This undermined the prosecution's claims that the society was responsible for fomenting rebellion. Thelwall was also acquitted, after which the rest of the cases were dismissed.