with a resentment long rankling in her bosom, bottomed on an existing foundation. She did not act under a delusion, that he had deserted her when he had not, but took revenge upon him for an actual desertion. But still the jury, in the humane consideration of her sufferings, pronounced the insanity to be predominant over resentment, and they acquitted her. But let me suppose (which would liken it to the case before us) that she had never cohabited with Mr. Errington; that she never had had children by him; and, consequently, that he neither had, nor could possibly have deserted or injured her. Let me suppose, in short, that she had never seen him in her life, but that her resentment had been founded on the morbid delusion that Mr. Errington, who had never seen her, had been the author of all her wrongs and sorrows; and that, under that diseased impression, she had shot him. If that had been the case, gentlemen, she would have been acquitted upon the opening, and no judge would have sat to try such a cause. The act itself would have been decisively characteristic of madness, because, being founded upon nothing existing, it could not❘ have proceeded from malice, which the law requires to be charged and proved, in every case of murder, as the foundation of a conviction. Let us now recur to the cause we are engaged in, and examine it upon those principles to the case by which I am ready to stand or fall, in in hand. the judgment of the court. You have a man before you who will appear, upon the evidence, to have received those almost deadly wounds which I described to you, producing the immediate and immovable effects which the eminent surgeon, whose name I have mentioned, will prove that they could not but have produced. It will appear that, from that period, he was visited by the severest paroxysms of madness, and was repeatedly confined with all the coercion which it is necessary to practice upon lunatics; yet, what is quite decisive against the imputation of treason against the person of the King, his loyalty never forsook him. Sane or insane, it was his very characteristic to love his Sovereign and his country, although the delusions which distracted him were sometimes, in other respects, as contradictory as they were violent. Application prisoner's de Of this inconsistency, there was a most strikStriking in ing instance on only the Tuesday bestances of the fore the Thursday in question, when lusions. it will be proved that he went to see one Truelet, who had been committed by the Duke of Portland as a lunatic. This man had taken up an idea that our Savior's second advent, and the dissolution of all human beings. were at hand; and conversed in this strain of madness. This mixing itself with the insane delusion of the prisoner, he immediately broke out upon the subject of his own propitiation and sacrifice for mankind, although only the day before he had exclaimed that the Virgin Mary was a whore; that Christ was a bastard; that God was a thief; and that he and this Truelet were to live with him at White Conduit House, and there to be enthroned together. His mind, in short, was overpowered and overwhelmed with distraction. DIE. points pre The charge against the prisoner is the overt act of compassing the death of the case reviewed King, in firing a pistol at his Majes- and its leading ty-an act which only differs from sented murder, inasmuch as the bare compassing is equal to the accomplishment of the malignant purpose; and it will be your office, under the advice of the judge, to decide by your verdict to which of the two impulses of the mind you refer the act in question. You will have to decide, whether you attribute it wholly to mischief and malice, or wholly to insanity, or to the ɔne mixing itself with the other. If you find it attributable to mischief and malice only, LET THE MAN The law demands his death for the public safety. If you consider it as conscious malice and mischief mixing itself with insanity, I leave him in the hands of the court, to say how he is to be dealt with; it is a question too difficult for me. I do not stand here to disturb the order of society, or to bring confusion upon my country But if you find that the act was committed whol ly under the dominion of insanity; if you are sat isfied that he went to the theater contemplating his own destruction only; and that, when he fired the pistol, he did not maliciously aim at the person of the King-you will then be bound, even upon the principle which the Attorney General himself humanely and honorably stated to you, to acquit this most unhappy prisoner. If, in bringing these considerations hereafter to the standard of the evidence, any doubts should occur to you on the subject, the question for your decision will then be, which of the two alternatives is the most probable-a duty which you will perform in the exercise of that reason of which, for wise purposes, it has pleased God to deprive the unfortunate man whom you are trying. Your sound understandings will easily enable you to distinguish infirmities, which are misfortunes, from motives, which are crimes. Before the day ends, the evidence will be decisive upon this subject. There is, however, another consideration, which I ought distinctly to present No edence of to you; because I think that more or fraud whet turns upon it than any other view of seized. the subject; namely, whether the prisoner's defense can be impeached for artifice or fraud. I admit, that if, at the moment when he was apprehended, there can be fairly imputed to him any pretense or counterfeit of insanity, it would taint the whole case, and leave him without protection. But for such a suspicion there is not even a shadow of foundation. It is repelled by the whole history and character of his disease, as well as of his life, independent of it. If you were trying a man, under the Black Act, for shooting at another, and there was a doubt upon the question of malice, would it not be important, or rather decisive evidence, that the prisoner had no resentment against the prosecutor; but that, on the contrary, he was a man whom King's life has never been aimed at amid all the imputed ex Now the prisdestroyed, in he had always loved and served ? oner was maimed, cut down, and the service of the King. Gentlemen, another reflection presses very Peroration: The strongly on my mind, which I find it difficult to suppress. In every state there are political differences and cesses of reform. parties, and individuals disaffected to the system of government under which they live as subjects. There are not many such, I trust, in this country. But whether there are many or any of such persons, there is one circumstance which has peculiarly distinguished his Majesty's life and reign, and which is in itself as a host in the prisoner's defense, since, amid all the treasons and all the seditions which have been charged on reformers of government as conspiracies to disturb it, no hand or voice has been lifted up against the person of the King. There have, indeed, been unhappy lunatics who, from ideas too often mixing themselves with insanity, have intruded themselves into the palace, but no malicious attack has ever been made upon the King to be settled by a trial. His Majesty's character and conduct have been a safer shield than guards, or than laws. Gentlemen, I wish to continue to that sacred life that best of all securities. I seek to continue it under that protection where it has been so long protected. | We are not to do evil that good may come of it; we are not to stretch the laws to hedge round the life of the King with a greater security than that which the Divine Providence has so happily | realized. guarded by impar tial justice, without excited feeling or any excess of zeal prisoner at the bar, whose life and death are in the balance, that he should be judged rigidly by the evidence and the law. I have made no appeal to your passions--you have no right to exercise them. This is not even a case in which, if the prisoner be found guilty, the royal mercy should be counseled to interfere. He is either an accountable being, or not accountable. If he was unconscious of the mischief he was engaged in, the law is a corollary, and he is not guilty. But if, when the evidence closes, you think he was conscious, and maliciously meditated the treason he is charged with, it is impossible to conceive a crime more vile and detestable; and I should consider the King's life to be ill attended to, indeed, if not protected by the full vigor of the laws, which are watchful over the security of the meanest of his subjects. It is a most important consideration, both as it regards the prisoner, and the community of which he is a member. Gentlemen, I leave it with you. Perhaps there is no principle of religion more It is safest when strongly inculcated by the sacred scriptures than that beautiful and encouraging lesson of our Savior himself upon confidence in the Divine protection: "Take no heed for your life, what ye shall eat, or what ye shall drink, or wherewithal ye shall be clothed; but seek ye first the kingdom of God, and all these things shall be added unto you." By which it is undoubtedly not intended that we are to disregard the conservation of life, or to neglect the means necessary for its sustentation; nor that we are to be careless of whatever may contribute to our comfort and happiness; but that we should be contented to receive them as they are given to us, and not seek them in the violation of the rule and order appointed for the government of the world. On this principle, nothing can more tend to the security of his Majesty and his government, than the scene which this day exhibits in the calm, humane, and impartial administration of justice; and if, in my part of this solemn duty, I have in any manner trespassed upon the just security provided for the public happiness, wish to be corrected. I declare to you, solemnly, that my only aim has been to secure for the I Lord Kenyon, who presided at the trial, appeared, it is said, much prejudiced against the prisoner while the evidence for the Crown was taken. But when Mr. Erskine had stated the principle upon which he grounded his defense, and when his Lordship found that the facts came up to the case opened for the prisoner, he delivered to the Attorney General the opinion of the court, that the case should not be proceeded in. A verdict of acquittal was, therefore, given, without any reply for the Crown, and the prisoner was placed in confinement at Bedlam. He remained there to an extreme old age, perfectly rational on most subjects, but liable to strong delusions, which rendered it unsafe to discharge him. In consequence of the attack of Hadfield upon George III., the peculiar provisions of the laws, referred to by Mr. Erskine in his exordium, were changed. Though he assigned very ingenious reasons for giving to a person who attempted the life of the King greater advantages as to trial, and as to the degree of evidence by which the change was to be established, than were granted in the case of a similar attempt on a subject, it was generally felt that this was neither wise nor safe. Hence the statute 39 and 40, George III., 93, was passed, by which it is enacted, that in all cases of high treason, in compassing or imagining the death of the King, and of misprision of such treason, where the overt act of such treason shall be alleged in the indictment to be the assassination of the King, or a direct attempt against his life or person, the person accused shall be indicted and tried in the same manner in every respect, and upon the like evidence, as if he was charged with murder, but the judg ment and execution shall be the same as in other cases of high treason. C. SPEECH OF MR. ERSKINE FOR THE REV. GEORGE MARKHAM, AGAINST JOHN FAWCETT, ESQ., FOR CRIMINAL CONVERSATION WITH HIS WIFE, DELIVERED BEFORE THE DEPUTY SHERIFF OF MIDDLE SEX AND A SPECIAL JURY, MAY 4, 1802, ON AN INQUISITION OF DAMAGES. INTRODUCTION. WITH all the varied abilities of Mr. Erskine, there was nothing in which he was thought so much to excel as the management of cases of adultery. He was almost uniformly retained for the complainant; and some of the most thrilling strains of his eloquence were on this subject. He obtained greater damages than any other advocate in England; and some even complained that, with Kenyon on the beach and Erskine at the bar, the judgments of juries in such cases became absolutely vindictive. In the present instance, there was no room for denial or exculpation, and the case went by default. It was, therefore, simply a hearing as to the amount of damages; and was referred by the court to a special jury, convened by the Under Sheriff in a private room at the King's Arms Tavern, Westminster. Eloquence, under such circumstances, would seem to be almost out of the question; and Mr. Erskine, therefore, entered on the subject in the quiet manner of a private individual conversing with a few old ac quaintances in a parlor of their own dwellings. But he instantly passed to a topic always interesting to an Englishman, the peculiar character of an English jury; and touched their pride by the suggestionone which runs throughout the whole speech-that the defendant, dreading the exposure of a public trial, had thrust the jury aside into a private room to cover his crimes for money. He then lays open the facts of the case in a narration of uncommon simplicity and beauty; dwells on the peculiarly aggravating cir cumstances which attended it; and takes the ground, that a full recompense (so far as money could give it) ought to be made to the plaintiff for the loss and suffering he had sustained. The damages were laid at £20,000, a sum more than double the defendant's entire property. Still Mr. Erskine contends that these damages ought to be awarded in full, as an act of simple justice to Mr. Markham, and as a warning to others for the protection of families in the intimacy of private friendship. On this last topic, he presents considerations founded on the structure of society, which are worthy of so fervent an admirer and student of Mr. Burke. It is a striking fact, that on so hackneyed a theme, necessarily involving a limited range of considerations, Mr. Erskine has nothing commonplace-no strained expressions, no extravagant sensibility, no clap-trap of any kind. In such a case, a man often shows his ability quite as much by what he does not say, as by what he does say; and we find Mr. Erskine here, as every where else, a perfect model of a business speaker, keeping his exuberant powers of fancy, sentiment, and pathos in the strictest subordination to the realities of his case. and circum SPEECH, &c. subjects of England that they judge one another. It is to be recollected that, although we are in this private room, all the sanctions of justice are present. It makes no manner of difference, whether I address you in the presence of the under sheriff, your respectable chairman, or with the assistance of the highest magistrate of the state. Object of the MR. SHERIFF, And Gentlemen OF THE JURY, -In representing the unfortunate gentleman who has sustained the injury which has been stated to you by my learned friend, Mr. Holroyd, who opened the pleadings, I feel one great satisfaction-a satisfaction founded, as I conceive, on a sentiment perfectly constitutional. I am about Character to address myself to men whom I PERstances of SONALLY KNOW; to men, honorable in the jury. their lives, moral, judicious; and capable of correctly estimating the injuries they are called upon to condemn in their character of jurors. THIS, gentlemen, is the only country in the world where there is such a tribunal as the one before which I am now to speak; for, however in other countries such institutions as our own may have been set up of late, it is only by that maturity which it requires ages to give to governments-by that progressive wisdom which has slowly ripened the Constitution of our country-them. that it is possible there can exist such a body of It is not long, however, since such persons men as YOU are. It is the great privilege of the have had an opportunity of judging how much suffering the defaul The defendant has, on this occasion, suffered judgment by default: other adulterers have done so before him. Some have defendant in done so under the idea that, by suffer- case to go be ing judgment against them, they had retired from the public eye-from the awful presence of the judge; and that they came into a corner where there was not such an assembly of persons to witness their misconduct, and where it was to be canvassed before persons who might be less qualified to judge the case to be addressed to they were mistaken in this respect. The largHis probable est damages, in cases of adultery, have mistake. been given in this place. By this place, I do not mean the particular room in which we are now assembled, but under inquisitions directed to the sheriff; and the instances to which I allude are of modern, and, indeed, recent date. Transition: of the subject to be presented. Gentlemen, after all the experience I have had, I feel myself, I confess, considPainful nature erably embarrassed in what manner to address you. There are some subjects that harass and overwhelm the mind of man. There are some kinds of distresses one knows not how to deal with. It is impossible to contemplate the situation of the plaintiff without being disqualified, in some degree, to represent it to others with effect. It is no less impossible for you, gentlemen, to receive on a sudden the impressions which have been long in my mind, without feeling overpowered with sensations which, after all, had better be absent, when men are called upon, in the exercise of duty, to pronounce a legal judgment. Narration: marriage and institution in the ministry. the defendant had been bred together at Westminster School; and in my mind it is Their intimacy still more affecting, when I reflect in early life. what it is which has given to that school so much rank, respect, and illustration. It has derived its highest advantages from the reverend father of the unfortunate gentleman whom I represent.1 It was the School of Westminster which gave birth to that learning which afterward presided over it, and advanced its character. However some men may be disposed to speak or write concerning public schools, I take upon me to say they are among the wisest of our institutions. | Whoever looks at the national character of the English people, and compares it with that of all the other nations upon the earth, will be driven to impute it to that reciprocation of ideas and sentiments which fill and fructify the mind in the early period of youth, and to the affectionate sympathies and friendships which rise up in the human heart before it is deadened or perverted by the interests and corruptions of the world. These youthful attachments are proverbial, and, indeed, The plaintiff is the third son of his Grace the few instances have occurred of any breaches of Archbishop of York, a clergyman of them; because a man, before he can depart from Mr. Markham's the Church of England; presented, the obligations they impose, must have forsaken in the year 1791, to the living of every principle of virtue, and every sentiment of Stokeley, in Yorkshire; and now, by manly honor. When, therefore, the plaintiff found his Majesty's favor, Dean of the Cathedral of his old school-fellow and companion settled in his York. He married, in the year 1789, Miss Sut-neighborhood, he immediately considered him as ton, the daughter of Sir Richard Sutton, Bart., of Norwood, in Yorkshire, a lady of great beauty and accomplishments, most virtuously educated, and who, but for the crime of the defendant, which assembles you here, would, as she has expressed it herself, have been the happiest of womankind. This gentleman having been presented, in 1791, by his father, to this living, where, I understand, there had been no resident rector for forty years, set an example to the Church and to the public, which was peculiarly virtuous in a man circumstanced as he was; for, if there can be any per-ment. son more likely than another to protect himself securely with privileges and indulgences, it might be supposed to be the son of the metropolitan of the province. This gentleman, however, did not avail himself of the advantage of his birth and station. Although he was a very young man, he devoted himself entirely to the sacred duties of his profession; at a large expense he repaired the rectory-house for the reception of his family, as if it had been his own patrimony, while, in his extensive improvements, he adopted only those arrangements which were calculated to lay the foundation of an innocent and peaceful life. He had married this lady, and entertained no other thoughts than that of cheerfully devoting himself to all the duties, public and private, which his situation called upon him to perform. removal into borhood. About this time, or soon afterward, the deMr. Fawcett's fendant became the purchaser of an the same neigh estate in the neighborhood of Stokeley, and, by such purchase, an inhabitant of that part of the country, and the neighbor of this unfortunate gentleman. It is a most affecting circumstance, that the plaintiff and cordial recep his brother. Indeed, he might well consider him 1 Dr. Markham, afterward Archbishop of York, was for some years at the head of the Westminster School, and was so much distinguished for his learning and his tact in drawing out the abilities of his pupils, that he was chosen to be private tutor of the Prince of Wales and his brother the Duke of York. Mr. Fawcett's confidence to Mr. Fawcett being thus settled in the neighborhood, and thus received by Mr. abuse of that Markham as his friend and companthe purposes ion, it is needless to say he could harof seduction. bor no suspicion that the defendant was meditating the seduction of his wife; there was nothing, indeed, in his conduct, or in the conduct of the unfortunate lady, that could administer any cause of jealousy to the most guarded or suspicious temper. Yet, dreadful to relate, and it is, indeed, the bitterest evil of which the plaintiff has to complain, a criminal intercourse, for nearly five years before the discovery of the connection, had most probably taken place. be found to have been a pattern of conjugal and quences of his crime, and what verdict you will parental affection. pronounce against him. You are placed, therefore, in a situation most momentous to the public. You have a duty to discharge, the result of which not only deeply affects the present generation, but which remotest posterity will contemplate to your honor or dishonor. On your verdict it depends whether persons of the description of the defendant, who have cast off all respect for religion, who laugh at morality, when it is opposed to the gratification of their passions, and who are careless of the injuries they inflict upon others, shall continue their impious and destructive course with impunity. On your verdict it depends whether such men, looking to the proceedings of courts of justice, shall be able to say to themselves, that there are certain limits beyond which the damages of juries are not to pass. │On your verdict it depends whether men of large fortunes shall be able to adopt this kind of reasoning to spur them on in the career of their lusts: "There are many chances that I may not be discovered at all; there are chances that, if I am discovered, I may not be the object of legal inquiry-and supposing I should, there are certain damages, beyond which a jury can not go. They may be large, but still within a certain compass. If I can not pay them myself, there may be persons belonging to my family who will pity my situation: somehow or other the money may be raised, and I may be delivered from the consequences of my crime." I TRUst the verdict OF THIS DAY gravation of the misery into which the plaintiff' I will leave you to consider what must have Peculiar ag been the feelings of such a husband, upon the fatal discovery that his wife, and such a wife, had conducted heris plunged. self in a manner that not merely deprived him of her comfort and society, but placed him in a situation too horrible to be described. If a man without children is suddenly cut off by an adulterer from all the comforts and happiness of marriage, the discovery of his condition is happiness itself when compared with that to which the plaintiff is reduced. When children, by a woman, lost forever to the husband, by the arts of the adulterer, are begotten in the unsuspected days of virtue and happiness, there remains a consolation; mixed, indeed, with the most painful reflections, yet a consolation still. But what is the plaintiff's situation? He does not know at what time this heavy calamity fell upon him he is tortured with the most afflicting of all human sensations. When he looks at the children, whom he is by law bound to protect and provide for, and from whose existence he ought to receive the delightful return which the union of instinct and reason has provided for the continuation of the world, he knows not whether he is lavishing his fondness and affection upon his own children, or upon the seed of a villain sown in the bed of his honor and his delight. He starts back with horror, when, instead of seeing his own image reflected from their infant features, he thinks he sees the destroyer of his happiness-a midnight robber introduced into his house, under professions of friendship and brotherhood—a plunderer, not in the repositories of his treasure, which may be supplied, or lived without, "but there where he had garnered up his hopes, where either he must live or bear no life."" In this situation, the plaintiff brings his case before you, and the defendant attempts no manner of defense. He admits his guilt-he renders it unnecessary for me to go into any proof of it; and the only question, therefore, that remains, is for you to say what shall be the conse Duty of the jury to the plaintiff and to the public in assessing dalaages. WILL SHOW MEN WHO REASON THUS THAT THEY The suffering every case to a full compensa jury sustained. party entited a tion for the m The action for adultery, like every other action. is to be considered according to the extent of the injury which the person complaining to a court of justice has received. If he has received an injury, or sustained a loss that can be estimated directly in money, there is then no other medium of redress, but in moneys numbered according to the extent of the proof. I apprehend it will not be even stated by the counsel for the defendant, that if a person has sustained a loss, and can show it is to any given extent, he is not entitled to the full measure of it in damages. If a man destroys my house or furniture, or deprives me of a chattel, I have a right, beyond all manner of doubt, to recover their corresponding values in money, and it is no answer to me to say that he who has deprived me of the advantage I before possessed is in no situation to render me satis"faction. A verdict pronounced upon such a principle, in any of the cases I have alluded to, would be set aside by the court, and a new trial awarded. It would be a direct breach of the oaths of jurors, if, impressed with a firm conviction that a plaintiff had received damages to a given amount, they retired from their duty, because they felt commiseration for a defendant, even in a case where he might be worthy of compassion from the injury being unpremeditated and inadvert 2 But there, where I had garnered up my heart, ent. But there are other wrongs which can not be ! estimated in money: |