Only for not having shrunk from the discharge of a duty, which no personal advantage recommended, and which a thousand difficulties repelled. Little indeed did they know me, who thought that such calumnies would influence my conduct."

In determining what deference should be given to public opinion the lawyer, and everyone as to that matter, should always distinguish between those general rules of conduct which society has laid down to govern its members, and the opinion which the public may entertain as to the applicability of any of such rules to a particular instance. Indeed, the practice of law involves the exercise to a marked degree of this distinguishing ability--the application of the law to a particular case. The former, or general rules, fall within Rousseau's "Volonte Generale." They constitute a force commensurate with the whole opinion of society, which speaks with one voice-a voice potent with authority, and irresistible. Within this class fall the "mores" of the Romans and the "Sittlichkeit" of the Germans. The latter, i. e., the application to particular instances, while not commensurate with, falls within, Rousseau's "Volonte de Tous," a mere numerical sum of individual wills, frequently in the minority, and at best forming only a majority of a community or society; and which may be disputed and resisted according to individual intelligence and conscience. This general will is, so to speak, another instance of the chemical welding of mental forces, more powerful and effective than the combined strength of mere individual aggregates.

In the Markham case, Erskine conceded to society the right to lay down general rules of morality; but in the Paine case he defied an overwhelming array of its individual members in their attempt to interpret and apply these rules to his conduct in the particular instance. This dilemma will always confront members of the bar. There is but one answer-one course for the worthy lawyer to follow-to paraphrase the words of Pope:

"What conscience dictates to be done,

Or warns him not to do;

That let him more than Hell to shun,

Or more than Heaven pursue."

There is inscribed upon the tomb of a Georgian,-one who stood in the front rank of the Nation's councils,-unsurpassed for his patriotism and statesmanship,-who defied popular clamor when it sought to override his conviction of right, this epitaph: "He Dared to Tell the People When They Were Wrong."

Let society prescribe the major premise; but individual determination the minor. The conclusion will be true or false as wisdom, conscience and tact direct in the performance of the latter.

In his defense of Stockdale, charged with a libel upon the House of Commons, Erskine expounded with great force the fundamental principles of the law of libel. The alleged libelous composition should be taken as a whole and be judged by its general spirit and intention, rather than by garbled and detached extracts. This principle was applied recently in a famous trial in Georgia. Says Erskine:

"The greatest works upon government, the most excellent books of science, the sacred Scriptures themselves, might be distorted into libels, by forsaking the general context, and hanging a meaning upon selected parts. Thus, as in the text put by Algernon Sidney, "The fool hath said in his heart, there is no God,' the Attorney-General, on the principle of the present proceeding against this pamphlet, might indict the publisher of the Bible for blasphemously denying the existence of Heaven, in printing, "There is no God,' for these words alone, without the context, would be selected by the information, and the Bible, like this book, would be underscored to meet it. Nor could the defendant, in such a case, have any possible defense, unless the jury were permitted to see, by the book itself, that the verse, instead of denying the existence of the Divinity, only imputed that imagination to a fool."

Two other short passages from this speech will be quoted. They are striking for their majestic flow and rhythm, as well as for the ideas therein expressed.

"If you are firmly persuaded of the singleness and purity of the author's intentions. you are not bound to subject him to infamy, because, in the

zealous career of a just and animated composition, he happens to have tripped with his pen into an intemperate expression in one or two instances of a long work. If this severe duty were binding on your consciences, the liberty of the press would be an empty sound, and no man could venture to write on any subject, however pure his purpose, without an attorney at one elbow and a counsel at the other.

"From minds thus subdued by the terrors of punishment, there could issue no works of genius to, expand the empire of human reason, nor any masterly compositions on the general nature of government, by the help of which the great commonwealths of mankind have founded their establishments; much less any of those useful applications of them to critical conjunctures, by which, from time to time, our own Constitution, by the exertion of patriotic citizens, has been brought back to its standard. Under such terrors, all the great lights of science and civilization must be extinguished; for men cannot communicate their free thoughts to one another with a lash held over their heads. It is the nature of everything that is great and useful, both in the animate and inanimate world, to be wild and irregular, and we must be contented to take them with the alloys which belong to them, or live without them. Genius breaks from the fetters of criticism, but its wanderings are sanctioned by its majesty and wisdom when it advances in its path; subject it to the critic, and you tame it into dullness. Mighty rivers break from their banks in the winter, sweeping away to death the flocks which are fattened on the soil that they fertilize in the summer: the few may be saved by embankments from drowning, but the flock must perish for hunger. Tempests occasionally shake our dwellings and dissipate our commerce; but they scourge before them the lazy elements, which without them would stagnate into pestilence. In like manner, Liberty herself, the last and best gift of God to His creatures, must be taken just as she is: you might pare her down into bashful regularity, and shape her into a perfect model of severe, scrupulous law, but she would then be Liberty no longer; and you must be content to die under the lash of this inexorable justice which you had exchanged for the banners of Freedom."

Speaking of this passage, Professor Goodrich has this to say: "This is one of the finest amplifications in English oratory, beautiful in itself, justified by the importance of the subject which it enforces, and admirably suited to produce the designed impression. The seminal idea was probably suggested by a remark of Burke, whose writings Mr. Erskine incessantly studied. 'It is the nature of all greatness not to be exact.' We see in this case how a man of genius may borrow from another, without detracting in the least from the freshness and originality with which his

ideas are expressed and applied. At the present day, there can be very little of that originality which presents an idea for the first time. All that can be expected is, that we make it our own, and apply it to new purposes.'

In his argument in the Stockdale case Erskine, criticising England's policy of arbitrary authority over subject races, goes on to say:

"I have not been considering it through the cold medium of books, but have been speaking of man and his nature, and of human dominion, from what I have seen of them myself among reluctant nations submitting to our authority. I know what they feel, and how such feelings can alone be repressed. I have heard them in my youth from a naked savage, in the indignant character of a prince surrounded by his subjects, addressing the governor of a British colony, holding a bundle of sticks in his hand, as the notes of his unlettered eloquence. 'Who is it,' said the jealous ruler over the desert, encroached upon by the restless foot of English adventure, 'who is it that causes this river to rise in the high mountains, and to empty itself into the ocean? Who is it that causes to blow the loud winds of winter, and that calms them again in summer? Who is it that rears up the shade of those lofty forests, and blasts them with the quick lightning at his pleasure? The same Being who gave to you a country on the other side of the waters gave ours to us; and by this title we will defend it,' said the warrior, throwing down his tomahawk upon the ground and raising the war-sound of his nation. These are the feelings of subjugated man all round the globe; and depend upon it, nothing but fear will control where it is vain to look for affection."

Prof. Goodrich characterizes the above passage as "admirably corresponding in its iambic structure with the character of the speaker.

The Edinburgh Review lauds this effort with the following encomium: "Whether we regard the wonderful skill with which the argument is conducted-the soundness of the principles laid down, and their happy application to the case, the exquisite fancy with which they are embellished and illustrated, or the powerful and touching language in which they are conveyed, it is justly regarded by all English lawyers as a consummate specimen of the art of addressing a jury. By these merits it is recommended to lovers of pure diction-of copious and animated descrip

tion-of lively, picturesque and fanciful illustration,—of all that constitutes, if we may so speak, the poetry of eloquence.'

In Erskine's defense of Hardy he ably expounds the law of treason and of compassing the death of the King. His speech on this occasion is especially interesting as being a valuable commentary upon the nature of an overt act. It also very lucidly distinguishes between the probative force of facts with a jury and the conclusion that, as a matter of law, may be drawn therefrom by the Court,-a distinction frequently overlooked by lawyers and judges.

This speech constitutes one of the most exhaustive and most elaborate of Erskine's efforts. He pronounces a magnificent eulogy upon the law of England,-how it throws a mantle of protection around the meanest of her subjects; and elucidates with much force the relative rights of the government and the people. Had Erskine lived in America he perhaps would have been a Henry, kindling the fires of the Revolution; had he lived later in the Southern States, he perhaps would have been a Toombs, hurling his Hamilcar thunderbolts at some "foul domination."

Two passages from this speech are here given:

"Rebellion is, when bands of men within a state oppose themselves, by violence, to the general will, as expressed or implied by the public authority; but the sense of a whole people, peaceably collected, and operating by its natural and certain effect upon the public councils, is not rebellion, but is paramount to, and the parent of, authority itself.

"I will say anywhere, without fear, nay, I will say here, where I stand, that an attempt to interfere, by despotic combination and violence, with any government which a people choose to give to themselves, whether it be good or evil, is an oppression and subversion of the natural and unalienable rights of man; and though the government of this country should countenance such a system, it would not only still be legal for me to express my detestation of it, as I have deliberately expressed it, but it would become my interest and my duty. . .

"May the Constitution of England endure forever!-the sacred and yet remaining sanctuary for the oppressed:-here, and here only the lot of man is cast in security:—what though authority, established for the ends of justice, may lift itself up against it;-what though the House of Commons itself should make an ex parte declaration of guilt; what though