which could arise in the course of the cause. There are only two criminal trials in which he is stated ever to have been engaged. The first was the prosecution of Mr. Stratton and [A. D. 1779.] his associates for deposing Lord Pigot, the Governor of Madras. Along with Erskine and other juniors, he assisted Dunning, who led for the defendants; but he only cross-examined a witness, without addressing the jury, and when, after a conviction, the judgment of the Court was prayed, he waived his right of speaking in mitigation of punishment. Yet we [FEB. 1781.] are afterwards surprised all of a sudden to find

him leading counsel in a very celebrated trial which required a display of the highest powers of eloquence. However paradoxical it may appear, the dry, technical lawyer, who could hardly construct a sentence of English grammatically, was very skilfully selected on this occasion.

Lord George Gordon was about to be tried for his life on a charge of high treason, because the mob which he headed while they strove tumultuously to present a petition to the House of Commons against Popery, had, afterwards, when he had left them, committed dreadful outrages in the metropolis, for which many of the chief malefactors had been very properly hanged. There was a strong prejudice against him on account of his imprudent speeches, which had remotely, though unintentionally, led to such disastrous consequences, and it was generally expected that he would be found guilty. He and his friends placed their only hope upon Erskine, who had been lately called to the bar, and had shown powers as an advocate unexampled in our judicial annals. But who was to be the colleague of this extraordinary youth? The statute of William III., to regulate trials for high treason, allowed a full defence by two counsel. No one junior to Erskine could be trusted, and his efforts would have been controlled and cramped by a senior of any reputation. Kenyon was therefore fixed upon. He was known to be a consummate lawyer, it was believed he would do no harm, and he was expected to act as a foil to Erskine, who was to come after him, and was sure to make up for all his deficiencies.

Though, at first, strongly opposed, from the dread that the jury might definitively make up their minds before Erskine could be heard, the hazardous plan was adopted, and it succeeded most admirably.

Kenyon, having practised at Quarter Sessions, had some notion of cross-examination, and he thus dealt rather smartly with a

1 21 Stat. Tr. 1045.

witness who had sworn to seeing a flag, with an exciting Protestant motto upon it, carried in the mob which the noble prisoner led on: Q. "Can you describe the dress of this man who, you say, you saw carrying the flag?" A. "I cannot charge my memory; it was a dress not worth minding-a very common dress."-Q. "Had he his own hair, or a wig?" A. "If I recollect right, he had black hair; shortish hair, I think."-Q.." Was there anything remarkable about his hair?" A. "No; I do not remember anything remarkable; he was a coarse-looking man; he appeared to me like a brewer's servant in his best clothes."-Q. "How do you know a brewer's servant in his best clothes from another man?" A. "It is out of my power to describe him better than I do. He appeared to me to be such."—Q. “I ask you by what means do you distinguish a brewer's servant from another man?" A. "There is something in a brewer's servant different from other men."-Q. "Well, then, you can tell us how you distinguish a brewer's servant from any other trade?" A. "I think a brewer's servant's breeches, clothes, and stockings, have something very distinguishing."-Q. "Tell me what in his breeches and the cut of his coat and stockings it was by which you distinguished him." A. "I cannot swear to any particular mark." Thus, by a little bullying and browbeating, the witness was thrown into confusion; and, although all that he swore about the flag was correctly true, his evidence was discredited.

But when Mr. Kenyon came to address the jury, he performed so miserably that the prosecution resembled an undefended cause, and poor Lord George afterwards declared that "he gave himself up for lost." To exhibit the most favorable specimen of this oration, I select the carefully premeditated proemium as it appears in the State Trials, after being corrected by the orator:

"Gentlemen of the Jury: The counsel for the prosecution having stopped in this stage of the business, giving as a reason for not producing more witnesses, that they are afraid of tiring out the patience of the Court and the jury, it is the misfortune of the prisoner to make his defence at that period of the day when the attention of the Court and the jury must be, in some measure, exhausted. There are other difficulties which he also labors under; for, upon this occasion, I, who am assigned, by the Court, to be one of his counsel, confess myself to be a person very little versed in the criminal courts; I never yet stood as a counsel for a person who had so great a stake put in hazard; and therefore, gentlernen, in addressing you for him, I stand as a person in very considerable agitation of mind for the consequences which may happen through my defects.

"When persons are accused of actions of great enormity, one is apt to look round about one to see what the motives were that could induce the parties so to act. The prisoner at the bar stands before you a member of one of the most considerable families in this country. At the time when this conduct is imputed to him, he was a member of the Legislature; he stood in a situation which he was not likely to better by throwing the country into convulsions. A person that stood in the situation he stood in, could not make his prospect better than in seeing the affairs of the country conducted under legal government; and if he thought any inroads had been made upon those laws which the wisdom of our ancestors had enacted, it was his business to bring about the repeal of those laws, to redress those grievances, by proper legal means, and not by causing a revolt in this country. This being the case, and as his conduct may be imputed to good or bad motives, it seems reasonable, and humanity will induce you, to impute it to proper rather than improper motives, the noble prisoner being, as I have said, a man standing in a situation who had everything to expect so long as law prevailed, but nothing to expect when anarchy was substituted in the place of law.

"The crime imputed to the noble prisoner is, that he being a liege subject of the King, had levied war against the King. The crime is imputed to him under an Act of Parliament enacted for the wisest purpose, that crimes of this very enormous nature should not depend upon loose construction; but that men, in their journey through life, might, by looking upon the statute, see what the plan of their duty was, might see what the rocks were upon which they were not to run, and might see, in the plain words of the statute, what they were to do, and what to avoid. The Attorney-General has told you, very properly, that the crime which he meant to impute to him was not a crime against the person of the King, but that it was a constructive treason. Gentlemen, I have only to lament that there is such a phrase in the law as constructive treason. At the time when the law was enacted, I verily believe the Legislature had it not in their contemplation that the words constructive treason would find their way into the courts at Westminster; but however, so it seems the law is; for so it seems, upon some certain occasions, Judges have decided."

He afterwards handled all the witnesses seriatim in the order in which they were called, reading their evidence from the notes on his brief, and making trivial comments upon them. At last he arrived at his peroration: "I know that I speak to men of

character and station in the world, and of good sense, and who know that their duty is to do justice; and know at the same time that every favorable construction is to be made in behalf of the prisoner. That has always been the language of courts, and will be the language of this court this day."

If the trial had here concluded, the jury, without leaving the court, would inevitably have found a verdict of guilty; but Erskine followed and restored the fortune of the day. It was impossible for him, with a grave face, to praise the eloquence of the discourse which had just been delivered; but with the utmost courtesy and generosity he sought to cover the failure of his leader, complimenting him upon his powers of cross-examination, and dwelling particularly upon the "breeches of the brewer's servant." After a most masterly exposition of the law of high treason, he clearly proved that, even giving credit to all that had been sworn on behalf of the Crown, the prisoner had neither imagined the King's death, nor levied war, within the meaning of the statute of Edward III. by which treasons were defined. So there was a glorious acquittal.1

It should be related to Kenyon's credit that on this occasion he was entirely free from jealousy and envy, although so outshone. On the contrary, he felt nothing towards his junior but admiration and gratitude, which continued through life, notwithstanding their political differences-insomuch that he would. hardly believe the stories which were afterwards told of Erskine's immoralities; and when some things were related which could not be denied, he would exclaim, "Spots on the sun-only spots on the sun!"

Mr. Kenyon's subsequent forensic displays were confined to arguing in the Court of Chancery such matters as the construction of a will or exceptions to the Master's report. But we must now attend to him as a politician. In the House of Commons he steadily voted with Lord North's Government till the critical division which put an end to it. On this occasion he absented himself on the plea of indisposition.2

[MARCH 8, 1782.]

Thurlow continuing, to the astonishment of all mankind, to hold the Great Seal under Lord Rockingham and the Whigs, now contrived to have his old "devil" Kenyon placed in the situation of Attorney-General. This appointment caused considerable discontent, for the law officers of the Crown had long been men of liberal acquirements and of great weight in the House of Commons. Undervaluing

21 St. Tr. 485-652.

2 22 Parl. Hist. 1208.

his own qualifications, Thurlow observed that the chief object in such an appointment was to have a sound lawyer, who could give good advice to the Government, and that Kenyon was allowed on all hands to be more familiarly acquainted with every branch of the law than any of his competitors, that the silence which he had hitherto observed in the House of Commons argued discretion, and that his zealous official services henceforth would be found of high value. The objection that this favorite had been strenuous for carrying on the war with America and against conciliation could not be decently urged, as the patron was in the same predicament. So Lord North's Attorney-General Wallace was turned out, and Kenyon, who had copied his principles and his conduct, succeeded him-to the peculiar chagrin of Whig barristers and considerably to the detriment of the new Whig Government. Dunning, become Lord Ashburton, Chancellor of the Duchy of Lancaster, and a member of Lord Rockingham's Cabinet, was suspected, in spite of repeated denials, of favoring the elevation of a man of notoriously anti-Whiggish principles, in consideration of the valuable assistance formerly rendered to himself in answering cases and noting briefs.

The new Attorney-General was a little puzzled by some of the questions on international law which arose from the "armed neutrality" of the Northern powers, entered into with a view to encroach on our belligerent maritime rights; but by industry he got up pretty well the learning about blockades, contraband of war, and free bottoms making free goods, and on all subjects of municipal law he advised the Government more promptly, more decisively, and more correctly than any law officer of the Crown had done for many years.

He first opened his mouth in the House of Commons, after [MAY 10.] being appointed Attorney-General, in an altercation with Mansfield, the late Solicitor-General, who, in the debate on Lord Shelburne's measure for arming the people, had represented the volunteers in Ireland as having constituted themselves the government of the country, and although several times called to order, had insisted on going on in the same strain. At last "Mr. Attorney-General Kenyon expressed his surprise that his learned friend should have put the House under the necessity of calling him to order three different times, and as his speech had a dangerous tendency if persevered in, he must be called to order again." Mansfield declared himself hurt by the Attorney-General's speech, which he said could not be calculated for any good purpose, and no part of his past life would justify the imputation that he would intentionally make any observation