LORD BIRKENHEAD'S FAMOUS TRIALS

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Famous Trials of History. By the Rt. Hon. The Earl of- Birkenhead. (Hutchinson. 21s. net).

LORD BillitgNIIRAIYB new selection of State Trials is better than the last, but it is still in many ways an unsatisfactory

performance, whether regarded from the legal, the historical, the romantic, or the penologieal point of view. To read a great example of criminal jurisprudence carefully set forth by a modern lawyer of discernment and ability is an intellectual - luxury of no mean order. Unfortunately, Lord Birkenhead does not consistently approach his cases. in this way. We do not always get a definite decision, though sometimes the ex-Lord Chancellor tells us boldly what he would have done had he been either Judge or Counsel, or a member of the Jury. Too often, again-, Lord Birkenhead does not leave himself room for a detailed analysis of the evidence. What he does is to provide us with very clear and pungent footnotes to the history of famous_ trials. He is specially happy in the case of trials with a• political element, trials in which issues of state-craft were bound 'tot affect the Judges as well as the Prosecutor. • -

A good example of what I mean is to be found in the first of the Famous Trials of History set forth by Lord Birkenhead.

The presentment of the trial is tantalizingly short, but the opinions of a highly-trained legal mind recorded on the various issues of the imprisonment, prosecution and execution of Mary Stuart are exceedingly valuable. Lord Birkenhead begins with a compressed, but very able, study of Elizabeth and her character, and of how her mind was made ,Mister, if it was not ir_deed brutalized, by her experiences as a young girl. She was left in the hands of ambitious politicians, who saw opportunities not only for playing the great game of politics in a particular way, but also for indulging their own predilections and lusts. What made the situation still more interesting and curious was the fact that Elizabeth was no weak feminine victim of cruel, hard, and subtle men. She was fully their match, and, indeed, very often their superior, at playing off one interest against another.

Elizabeth, when treating her lovers, her statesmen, and the great rulers of foreign States, was always in her element, and played her part with amazing perspicuity and courage. In the case of Mary, however, there were personal elements which came in and prevented the game from being played out in Machiavellian isolation such as Elizabeth really loved for the untwisting of a great plot of state-craft. She nourished a strong personal hatred of Mary. In the first place, Mary was in person more beautiful and more fascinating, or, at any rate, seemed to her rival to have this personal advantage, and therefore when she dealt with the problem of Mary she was always liable to be" put off her stroke "by purely personal considerations. Besides the point of personal jealousy, which was strong, Elizabeth was always hampered and distracted by the thought that it was dangerous for herself and all persons who were of the "Seed Royal" to teach mankind that you could execute a king as easily as you could anybody

else—that, in a word, there was not in fact a divinity which

hedged a king or queen. If that was so, where did the sacred- ness of the Sovereign's person come in ? In fine, Elizabeth always felt that it was no business of hers to do what Boswell's father, the old Scottish judge, praised Cromwell for doing, that is, teaching kings that they had got joints in their necks.

Moreover, even when her personal jealousy was- roused, Elizabeth was in _no essential point a cruel or bloody-minded person. She was fully prepared to adopt with all its conse- quences the maxim, .".If anybody is to die, it shall be you, not I " ; but, other things being equal, she would far rather spare than slay. Of anything approaching blood-lust in her character there is not a _trace, and especially did she dislike the idea, so to speak, of having blood upon her own fingers. It is pathetic to note bow she tried to prevent Mary's trial from taking place, and when it had taken place, to prevent the decision of the Coo'rt for capital punishment being carried out. She loathed the idea of giving the order for Mary's execution, and longed for someone to -cOnie-and take the -illiatiN7e and rid her of her tiresome cousin. But her statesmen, soldiers, and officials were much too cunning to lend themselves to anything of this kind. Though anxious to see Mary removed, none of them would take any responsibility, for the act. They all, wanted the fullest documentary evidence that they were acting on Elizabeth's orders, and not on anybody else's. And here comes in a point which Lord Birkenhead has missed., It affords a very good example of Shakespeare's treatment of" contemporary history. In Antony and Cleopatra following Plutarch, he gives–us a marvellous example of a great man's willingness to reap personal profit and satisfaction by the action of an underling, though Wholly unwilling to 'Issue the order himself and shoulder the responsibility. When Octavius, Antony, Lepidus, Pompey, and Stenos, with " other Captains" are in Pompey's galley, lying near Misenum, they indulge in a great feast and drinking bout. Menas, one of the captains, in the course of the orgy makes a notable aside to Pompey, "Wilt thou be lord of all the world ? " Pompey is astonished and asks how that could be. The underling replies :— " But entertain it,

And, though thou think me poor, I am the man Will give thee all the world.

Naturally Pompey asks him whether he is drunk. Arenas replies that he is not, but persists in his desperate saying. He then proceeds :— " These three world-sharers [the Triumvirate], these competitors, Are in thy vessel : let me cut the cable ;

And, when we are put off, fall to their throats :

All then is thine.', Then comes the reaction of a Sovereign and a master of state- craft to such a proposal :— POMPEY : " Ah, this thou shouldst have done,

And not have spoke on 't ! In me 'tis villainy ; In thee 't had been good service. Thou must know, 'Tis not my profit that does lead mine honour ; Mine honour, it. Repent that e'er thy tongue Hath so betray'd thine act : being done unknown, I should have found it afterwards well done •

But must condemn it now. Desist, and drink."

AtEnes (aside) : " I'll never follow thy pall'd fortunes more.

Who seeks, and will not take when once 'Vs , offer'd, Shall never find it more."

Unquestionably we have here the secret of Elizabeth's vacilla- tions. The play was written long after the Queen's trial, but there is no reason why Shakespeare should not have heard its secrets and, having heard them, should not have dwelt upon the incident in the way he did.

"The Trial of Eugene Aram" is an able piece of criminal criticism, as is also "The Trial of Dr. Dodd." "The Trial of Warren Hastings" could easily hive been spared. it is much too big a matter to be treated on some fifteen or sixteen pages. ' What I personally should have liked would have been to see Lord Birkenhead's comments upon the first of the Indian State trials, that is, the trial of Nuncomar for forgery. I believe that he would have come to the same conclusion as did Mr. Justice Stephen when he made a thorough examination of the whole episode.

Before I leave Lord Birkenhead's book I have a suggestion to make. I think he would win the gratitude of all historians of the eighteenth century if he "would weigh the evidence in the case of the Junius Letters and tell us what he thinks can be proved either positively or negatively in regard to their authorship. If he were to do this, I hope he would examine the style and consider whether there is not a similarity of phrase in the great passages of invective by Junius and those by Lord Chatham. We know one thing on the point, and that is that Lord Chatham in instructing his son, the younger Pitt, in the matter of eloquence strongly advised him to study the Letters of Junius. I do not suggest for a moment that Chatham wrote all Junius ; but I do think that he was in the secret and every now and then used Junius as his "cover "- while making particularly virulent attacks upon contemporary