Lord Thomas Erskine was the lawyer who defended Thomas Paine (unsuccessfully) for sedition. Paine's writings were the philosophical basis for the American Revolution, and did not endear him to the English Crown. What he said about that reminds me of why I keep fighting for the rights of people who Really Should Have Had More Sense Than to Do That:
"I will forever, at all hazards, assert the dignity, independence, and integrity of the English Bar, without which impartial justice, the most valuable part of the English Constitution, can have no existence.
"From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject in the court where he daily sits to practise, from that moment the liberties of England are at an end.
"If the advocate refuses to defend, from what he may think of the charge or of the defense, he assumes the character of the judge; nay, he assumes it before the hour of judgment; and, in proportion to his rank and reputation, puts the heavy influence of, perhaps, a mistaken opinion into the scale against the accused, in whose favor the benevolent principle of English law makes all presumptions, and which commands the very judge to be his counsel."
Anyway, I'm going to try this blogging thing with random thoughts from a history buff who practices criminal defense law to earn a living.
1 comment:
Wasn't it a bit ironic to argue from the "English constitution" on behalf of Thomas Paine, when Paine was the strongest proponent of the view that no such thing existed?
Here it is, straight from his Rights of Man.
* * *
It has been thought a considerable advance towards establishing the principles of Freedom, to stay that government is a compact between those who govern and those who are governed: but this cannot be true, because it is putting the effect before the cause; for as man must have existed before governments existed, there necessarily was a time when governments did not exist, and consequently there could originally exist no governors to form such a compact with. The fact therefore must be, that the individuals themselves, each in his own personal and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.
To possess ourselves of a clear idea of what government is, or ought to be, we must trace it to its origin. In doing this, we shall easily discover that governments must have arisen, either out of the people, or over the people. Mr Burke has made no distinction. He investigates nothing to its source, and therefore he confounds everything: but he has signified his intention of undertaking at some future opportunity, a comparison between the constitutions of England and France. As he thus renders it a subject of controversy by throwing the gauntlet, I take him up on his own ground. It is in high challenges that high truths have the right of appearing; and I accept it with the more readiness, because it affords me, at the same time, an opportunity of pursuing the subject with respect to governments arising out of society.
But it will be first necessary to define what is meant by a constitution. It is not sufficient that we adopt the word; we must fix also a standard signification to it.
A constitution is not a thing in name only, but in fact. It has not an ideal, but a real existence; and whenever it cannot be produced in a visible form, there is none. A constitiution is a thing antecedent to a government, and a government is only the creature of a constitution. The constitution of a country is not the act of its government, but of the people constituting a government. It is the body of elements to which you can refer, article by article; and which contains the principles on which the government shall be established, the manner in which it shall be organized, the powers it shall have, the mode of elections, the duration of parliaments, or by what other name such bodies may be called; the powers which the executive part of the government shall have; and, in fine, everything that relates to the complete organization of a civil government, and the principles on which it shall act, and by which it shall be bound. A constitution, therefore, is to a government, what the laws made afterwards by that government are to a court of judicature. The court of judicature does not make the laws, neither can it alter them; it only acts in conformity to the laws made: and the government is in like manner governed by the constitution.
Can then Mr Burke produce the English constitution? If he cannot, we may fairly conclude, that though it has been so much talked about, no such thing as a constitution exists, or ever did exist, and consequently that the people have yet a constitution to form.
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