at Athens. The words of a speech when reproduced can never again have the same setting, and can never shine with the same brilliancy as the original utterance. At another time and upon another occasion the speech is dead; its spirit is gone. Great orations, therefore, so often, never read well, and frequently fall short when reproduced in recitation. Only a lifeless photograph appears when a speech is seen in cold type. Erskine himself illustrates this in referring to a cabinet of natural history. "Rare animals," says he, "however ingeniously preserved, are but feeble representations of them when living; though we observe the form of a lion we cannot hear him roar, nor see him stalking over the desert in the tremendous majesty of his dominion; though we cannot but admire the form and plumage of an eagle, we account it nothing, because his vast wings are not in motion nor his prey flying dismayed under their shadow."

While the language of an oration may not measure up to every standard of perfection, it still may be eminently suited to the particular occasion. It might fit in ideally with the time and place. The orator in the height of his deliverance is looking only a few seconds ahead. He has the ideas in his mind. In most instances his language is chosen as his thoughts advance. His mind operates as a forge, and his voice gives deliverance to the product. When keyed high on some climax, a mere shuffle of a foot, or some groan or sigh from the audience, may unconsciously direct the line of his thought, or affect the choice of a word. Some expression from a juror, or a frown from the judge, may influence his course, and cause him instantly to change and launch out into another channel from the one he had intended a moment before to follow. A striking example of this occurred in the case of Seargent Prentiss. Once, in one of his flights, while making a political harangue from the top of a circus cage, one of the animals beneath his feet uttered a growl. Seizing the moment, Prentiss exclaimed:

"Listen, fellow citizens! Hark how the very beasts of the forest utter condemnation of this great outrage

upon your dearest and most cherished rights."

As a further illustration of the effects of a small circumstance upon an orator's course an experience in Erskine's own career is worthy of note. It was the occasion of his maiden speech in Parliament, which was a failure. He had been accustomed to adressing juries, where he could not be harassed by sneering opponents or by questions from his hearers. Upon this occasion he was completely disconcerted by Pitt, who, from having been continually listening to him, turned aside with a contemptuous smile, and plainly showed his disapproval and disgust. Erskine, however, recovered from this experience, and afterwards made some very able and excellent speeches in Parliament.

It is related of both Sheridan and Disraeli that their first attempts in Parliament were failures, due, perhaps, to embarrassment and to trivial circumstances exerting more or less influence over their inexperienced efforts.

Another instance of a trifling circumstance causing the collapse of an oratorical effort, and perhaps changing the course of American history, is told by Mr. James Callaway, of the Macon (Ga.) Telegraph. Says he: "Perhaps no greater tribute was ever paid to the power and magic of oratory than when, during the noon intermission at the Secession Convention in Milledgeville, the lemonade furnished Herschel V. Johnson was 'doctored.' The great triumvirate of Union advocates were Alex. Stephens, Ben Hill and Herschel V. Johnson. The greatest Union speech ever delivered in the United States was by Alex. Stephens before the legislature prior to this convention, but for some cause Mr. Stephens was not himself, and Ben Hill delivered the great Union speech, having wonderful effect. He was followed by Herschel V. Johnson, who was thrilling his audience; but in the midst of it was adjournment for lunch. When Mr. Johnson resumed his speech after

dinner, his brain would not work. He made the attempt, but had to sit down. The poison put in his beverage-lemonade-at noon produced brain confusion. This ignoble device was resorted to in order to break the force of the speech before noon, fearing the conclusion by such a master orator and logician."

Erskine lived in that age which marked the advent of modern constitutional government. He perhaps contributed more than any public man in England to the establishment of freedom of speech. In many of his arguments, both at the bar and in Parliament, he exerted his mighty powers in behalf of the liberties of the people. He hurled his thunderbolts against tyranny and oppression. Perhaps his greatest effort, if not from the standpoint of fancy oratory, but from the standpoint of logic and legal reasoning, was his speech before Lord Mansfield on a motion for a new trial in behalf of the Dean of St. Asaph, upon the conviction of the latter for criminal libel. His argument upon this occasion was characterized by Fox as the "finest piece of reasoning in the English language." The jury had found a verdict of "guilty of publishing only." In this masterly presentation Erskine contended that it was the law of England, and always had been, that a jury in a criminal case had the right to bring in a general verdict of "guilty," or "not guilty," and should not be required to bring in a special verdict on the facts, irrespective of the law, as the jury in the case at bar had done. This doctrine was as old as Saxon times. "The institution and authority of juries," said he, "is to be found in Bracton, who wrote 500 years before Blackstone. "The curia (court) and the pares (jury),' says he, 'were necessarily the judges in all cases of life, limb, crime and dishersion of the heir in capite. The King could not decide, for then he would have been both prosecutor and judge; neither could his justices, for they represent him.' Said Erskine further, in speaking of the Saxon era, "The whole administration of justice, criminal

and civil, was in the hands of the people, without the control or intervention of any judicial authority, delegated to fixed magistrates by the Crown. The tenants of every manor administered civil justice to one another in the Court Baron of their lord; and their crimes were judged of in the Leet, every suitor of the manor giving his voice as a juror, and the steward being only the registrar, and not the judge."

Mere quotations from this argument cannot do it justice. It should be read in full to appreciate its logic and the elaborate legal history therein contained.

Lord Mansfield decided against the rule and sustained the right of the jury to bring in a special verdict. In delivering his judgment he committed a most remarkable blunder, as judges frequently do when they assume their conclusions and then proceed to manufacture premises to sustain them. To suit the occasion Lord Mansfield misquoted, unintentionally no doubt, an old ballad which had gone the rounds some years before, digging at Sir Philip York, the prosecuting attorney. It ran as follows:

"Sir Philip well knows

That his innuendoes
Will serve him no longer

In verse or in prose;

For twelve honest men have decided the cause,

Who are judges alike of the facts and the laws."

To sustain his position, Lord Mansfield quoted this last line as if it read: "Who are judges of facts, though not judges of laws."

Erskine afterwards, in commenting upon the manner in which his argument,-this "finest piece of reasoning in the English language," was received by Lord Mansfield, stated: "He treated me, not with contempt indeed, for of that his nature was incapable, but he put me aside with indulgence as you do a child while it is lisping its prattle out of season." How many young lawyers have had their la

bored efforts thus disposed of by some courteous and indulgent judge, with preconceived and fixed ideas, with a mind closed to argument, trembling lest he commit some innovation!

Said Lord Campbell: "The public mind was so alarmed by the consequences of this decision, that Mr. Fox's Libel Bill was called for, which declared the rights of jurors in cases of libel; and I rejoice always to think that it passed as a declaratory act, although the Judges unanimously gave an opinion, in the House of Lords, that it was inconsistent with the common law. I have said, and I still think, that this great constitutional triumph is mainly to be ascribed to Lord Camden, who had been fighting in the same cause for half a century, and uttered his last words in the House of Lords in its support; but had he not received the invaluable assistance of Erskine, as counsel for the Dean of St. Asaph, the Star Chamber might have been reestablished in this country."

In this connection it is worthy of note that the section of the Constitution of this State, which provides that the truth may be given in evidence in all prosecutions for libel, also provides that "the jury in all criminal cases shall be the judges of the law and the facts."

So devoted was Erskine to the right of trial by jury that, even when he went upon the woolsack, he adopted for his heraldic shield the rather incongruous motto, "Trial by Jury."

An amusing contrast to Erskine's strong advocacy of the rights of juries is recalled by an incident which happened before he came to the bar, when stationed as a soldier at Malta. The Governor-General, to whom the garrison was much attached, had been sued at Westminster where the verdict of the jury had been against him. When the news came to Malta the soldiers held an indignation meeting. They were led by Erskine, who read some doggerel of his

2 32 Geo. III, year 1792.