oquence to be the opposing counsel had the embarrass the speaker. Gentlemen, my embarrassment is abundantly increased, when I see present a noble person, high, very high in rank in this kingdom, but not higher in rank than he is in my estimation: I speak of the noble Duke of Norfolk, who most undoubtedly must feel not a little at being obliged to come here as a witness for the defendant in the cause of a plaintiff so nearly allied to himself. I am persuaded no man can have so little sensibility, as not to feel that a person in my situation must be greatly embarrassed in discussing a question of this nature before such an audience, and between such parties as I have described. the parties. He has thought it right (partly in courtesy to me, Now, to show you how little disposed I am to None of the el- as I am willing to believe, and in part work upon you by any thing but by Statement of expected which for the purposes of his cause) that proof; to convince you how little de- the case. you should suppose you are to be ad- sirous I am to practice the arts of speech as my predicted. dressed with eloquence which I nev- only artillery in this cause, I will begin with a few er possessed, and which, if I did, I should be in- plain dates, and, as you have pens in your hands, capable at this moment of exerting; because the I will thank you to write them down. I shall bemost eloquent man, in order to exert his elo- gin with stating to you what my cause is, and shall quence, must have his mind free from embarrass- then prove it—not by myself, but by witnesses. ment on the occasion on which he is to speak- The parties were married on the 24th of April, I am not in that condition. My learned friend 1789. The child that has been spok- Marriage of has expressed himself as the friend of the plain- en of, and in terms which gave me great and birth of tiff's family. He does not regard that family satisfaction, as the admitted son of the their child. more than I do; and I stand in the same predic-plaintiff, blessed with the affection of his parent, ament toward my own honorable client and his and whom the noble person to whom he may berelations. I know him and them, and because I come heir can look upon without any unpleasant Forbidden by know them, I regard them also: my reflection—that child was born on the 12th of ing situation of embarrassment, however, only arises August, 1791. Take that date, and my learned at being obliged to discuss this ques- friend's admission, that this child must have been tion in a public court of justice, because, could the child of Mr. Howard; an admission which it have been the subject of private reference, I could not have been rationally or consistently should have felt none at all in being called upon made, but upon the implied admission that no ilto settle it. licit connection had existed previously by which its existence might have been referred to the defendant. On this subject, therefore, the plaintiff must be silent. He can not say the parental mind has been wrung; he can not say hereafter, "NO SON OF MINE SUCCEEDING"-he can say none of these things. This child was born on the 12th of August, 1791, and as Mr. Howard is admitted to be the author of its existence (which he must have been, if at all, in 1790), I have a right to say that, during all that interval, this gentleman could not have had the least reasonable cause of complaint against Mr. Bingham. His jealousy must, of course, have begun after that period; for, had there been grounds for it before, there Gentlemen, my learned friend desired you could be no sense in the admission of his counError of the op, would take care not to suffer argu-sel, nor any foundation for that parental consolam giving testi ment, or observation, or eloquence to tion which was brought forward in the very front mony without be called into the field, to detach your of the cause. attention from the evidence in the The next dry date is, therefore, the 24th of cause, upon which alone you ought to decide; I July, 1793; and I put it to his Lordwish my learned friend, at the moment he gave ship, that there is no manner of evi- Howard's you that caution, had not himself given testimony dence which can be pressed into this of a fact to which he stood the solitary witness. cause previous to that time. Let me next disI wish he had not introduced his own evidence, embarrass the cause from another assertion of without the ordinary ceremony of being sworn. my learned friend, namely, that a divorce can I will not follow his example. I will not tell not take place before the birth of this Error of the op you what I know from the conversation of my child; and that, if the child happens posing counsel elient, nor give evidence of what I know myself. to be a son, which is one contingency My learned friend tells you that nothing can ex--and if the child so born does not die, which is ceed the agony of mind his client has suffered, another contingency—and if the noble Duke dies and that no words can describe his adoration of without issue, which is a third contingency-then the lady he has lost: these most material points this child might inherit the honors of the house of the cause rest, however, altogether on the sin- of Norfolk. That I deny. My recent experigle, unsupported, unsworn evidence of the coUN- ence tells me the contrary. In a case where SEL for the plaintiff. No RELATION has been Mr. Stewart, a gentleman of Ireland, stood in a called upon to confirm them, though we are told similar predicament, the Lords and Commons of that the whole house of Fauconberg, Bellasyse, England not only passed an Act of Divorce beand Norfolk are in the avenues of the court, tween him and his lady, but, on finding there was ready, it seems, to be called at my discretion: no access on the part of the husband, and that the and yet my learned friend is himself the only child was not his, they bastardized the issue. witness; though the facts (and most material facts, indeed, they would have been) might have been proved by so many illustrious persons. posing counsel being under oath. Time of Mrs. elopement. as to divorce. What, then, remains in this cause? Gentle Macbeth. Act iii., Scene 2 men, there remains only this: In what manner, | pathies of their offspring, and all the sweet, de- Representa ing counsel. The lady's pre ment and loath Alas, gentlemen! you must now prepare to see in the room of this a scene of horror and of sorrow. You must prepare to vious ercage. see a noble lady, whose birth surely ing repugnance required no further illustration; who to the marriage. had been courted to marriage before she ever heard even her husband's name; and whose affections were irretrievably bestowed upon, and pledged to, my honorable and unfortunate client; you must behold her given up to the plaintiff by the infatuation of parents, and stretched upon this bridal-bed as upon a rack; torn from the arms of a beloved and impassioned youth, himself of noble birth, only to secure the honors of a higher title; a legal victim on the altar of Heraldry. Now, before any thing can be lost, it must have existed; before any thing can be taken away from a man, he must have had it; before the seduction of a woman's affections from her husband can take place, he must have possessed her affections. Gentlemen, my friend, Mr. Mingay, acknowledges this to be the law, and he shapes tions of oppos his case accordingly. He represents his client, a branch of a most illustrious house, as casting the eyes of affection upon a disengaged woman, and of rank equal to, or, at least, suitable to his own. He states a marriage of mutual affection, and endeavors to show that this young couple, with all the ardor of love, flew into each other's embraces. He shows a child, the fruit of that affection, and finishes with introducing the seductive adulterer coming to disturb all this happiness, and to destroy the blessings which he describes. He exhibits the defendant coming with all the rashness and impetuosity of youth, careless of the consequences, and thinking of nothing but how he could indulge his own lust-inal preparing for execution. ful appetite at the expense of another man's honor; while the unhappy husband is represented as watching with anxiety over his beloved wife, anxious to secure her affections, and on his guard to preserve her virtue. Gentlemen, if such a case, or any thing resembling it, is established, I sball leave the defendant to whatever measure of damages you choose, in your resentment, to inflict. In order, therefore, to examine this matter (and True state I shall support every syllable that I ut of facts. ter with the most precise and uncontrovertible proofs), I will begin with drawing up the curtains of this blessed marriage-bed, whose joys are supposed to have been nipped in the bud by the defendant's adulterous seduction. Nothing, certainly, is more delightful to the human fancy than the possession of a beautiful woman in the prime of health and youthful passion; it is beyond all doubt the highest enjoyment which God, in his benevolence, and for the wisest purposes, has bestowed upon his own image. I reverence, as I ought, that mysterious union of mind and body which, while it continues our species, is the source of all our affections; which builds up and dignifies the condition of human life; which binds the husband to the wife by ties more indissoluble than laws can possibly create, and which, by the reciprocal endearments arising from a mutual passion, a mutual interest, and a mutual honor, lays the foundation of that parental affection which dies in the brutes with the necessities of nature, but which reflects back again upon the human parents the unspeakable sym Gentlemen, this is no high coloring for the purposes of a cause; no words of an advocate can go beyond the plain, unadorned effect of the evidence. I will prove to you that when she prepared to retire to her chamber she threw her desponding arms around the neck of her confidential attendant, and wept upon her as a crimI will prove to you that she met her bridegroom with sighs and "I tell thee, Howard, Gentlemen, this was not the sudden burst of youthful disappointment, but the fixed and settled habit of a mind deserving of a happier fate I shall prove that she frequently spent her nights upon a couch, in her own apartments, dissolved in tears; that she frequently declared to her woman that she would rather go to Newgate than to Mr. Howard's bed; and it will appear, by his own confession, that for months subsequent to the marriage she obstinately refused him the privileges of a husband. To all this, it will be said by the plaintiff's counsel (as it has, indeed, been hint- Mr. Bingham m ed already), that disgust and aliena- no sense the se tion from her husband could not but be expected; but that it arose from her affection for Mr. Bingham. Be it so, gentlemen. I read ducer. ily admit, that if Mr. Bingham's acquaintance | the way, and in the ardors of mutual love, and in with the lady had commenced subsequent to the the simplicities of rural life, let them lay the founmarriage, the argument would be irresistible, and dation of a vigorous race of men, firm in their the criminal conclusion against him unanswera- bodies, and moral from early habits; and instead ble. But has Mr. Howard a right to instruct his of wasting their fortunes and their strength in the counsel to charge my honorable client with se- tasteless circles of debauchery, let them light up duction, when he himself was the SEDUCER? My their magnificent and hospitable halls to the genlearned friend deprecates the power of what he try and peasantry of the country, extending the terms my pathetic eloquence. Alas, gentlemen! consolations of wealth and influence to the poor. if I possessed it, the occasion forbids its exertion, Let them but do this; and, instead of those danbecause Mr. Bingham has only to defend himself, gerous and distracting divisions between the difand can not demand damages from Mr. Howard ferent ranks of life, and those jealousies of the for depriving him of what was his by a title su- multitude so often blindly painted as big with deperior to any law which man has a moral right struction, we should see our country as one large to make. Mr. Howard was NEVER MARRIED! and harmonious family, which can never be acGod and nature forbid the bans of such a marriage.complished amid vice and corruption, by wars or If, therefore, Mr. Bingham this day could have, by me, addressed to you his wrongs in the character of a plaintiff demanding reparation, what damages might I not have asked for him; and, without the aid of this imputed eloquence, what damages might I not have expected? I would have brought before you a noble youth, who had fixed his affections upon one of the most beautiful of her sex, and who enjoyed hers in return. I would have shown you their suitable condition; I would have painted the expectation of an honorable union; and would have concluded by showing her to you in the arms of another, by the legal prostitution of parental choice in the teeth of affection; with child by a rival, and only reclaimed at last, after so cruel and so afflicting a divorce, with her freshest charms despoiled, and her very morals in a manner impeached, by asserting the purity and virtue of her original and spotless choice. Good God! imagine my client to be PLAINTIFF, and what damages are you not prepared to give him? and yet he is here as DEFENDANT, and damages are demanded against HIM. Oh, monstrous conclusion! Gentlemen, considering my client as perfectly safe under these circumstances, I may spare a moment to render this cause beneficial to the public. Admonitions to of England aris facts. Their applica treaties, by informations ex officio for libels, or by produce further Having shown the feeble expectation of happiness from this marriage, the next Nothing done by point to be considered is this: Did Mr. Bingham to Mr. Bingham take advantage of that alienation. circumstance to increase the disunion? I answer, No. I will prove to you that he conducted himself with a moderation and restraint, and with a command over his passions, which I confess I did not expect to find, and which in young men is not to be expected. I shall prove to you, by Mr. Greville, that, on this marriage taking place with the betrothed object of his affections, he went away a desponding man. His health declined; he retired into the country to restore it; and it will appear that for months afterward he never saw this lady until by mere accident he met her. And then, so far was he from endeavoring to renew his connection with her, that she came home in tears, and said he frowned at her as he passed. This I shall prove to you by the It involves in it an awful lesson; and more instructive lessons are taught in courts of justice than the Church is able to inculcate. Morals come in the cold abstract from pulpits; but men smart under them practically when we lawyers are the preachers. Let the aristocracy of England, which trem-evidence in the cause. bles so much for itself, take heed to the aristocracy its own security. Let the nobles of ing out of such England, if they mean to preserve that pre-eminence which, in some shape or other, must exist in every social community, take care to support it by aiming at that which is creative, and alone creative, of real superiority. Instead of matching themselves to supply wealth, to be again idly squandered in debauching excesses, or to round the quarters of a family shield; instead of continuing their names and honors in cold and alienated embraces, amid the enervating rounds of shallow dissipation, let them live as their fathers of old lived before them. Let them marry as affection and prudence lead Gentlemen, that is not all. It will appear that, when he returned to town, he took no manner of notice of her; and that her unhappiness was beyond all power of expression. How, indeed, could it be otherwise, after the account I have given you of the marriage? I shall prove, besides, by a gentleman who married one of the daughters of a person to whom this country is deeply indebted for his eminent and meritorious service [Marquis Cornwallis], that, from her utter reluctance to her husband, although in every respect honorable and correct in his manners and 2 This was during the progress of those oppressive state trials in which Mr. Erskine was so largely engaged. his wife's con duct. "Elizabeth never loved me. [brings Let no man, after me, a woman wed The worst of sorrows, and the worst of shames." a divorce, but thorizes dama You have, therefore, before you, gentlemen, two young men of fashion, both of The suit neces noble families, and in the flower of sary to procure youth: the proceedings, though not not one that ancollusive, can not possibly be vindic- ges tive; they are indispensably preliminary to the dissolution of an inauspicious marriage, which never should have existed. Mr. Howard may, then, profit by a useful though an unpleasant experience, and be happier with a woman whose mind he may find disengaged; while the parents of the rising generation, taking warning from the lesson which the business of the day so forcibly teaches, may avert from their families, and the public, that bitterness of disunion, which, while human nature continues to be itself, will ever be produced to the end of time, from similar conjunctures. behavior, he was not allowed even the privileges | union, was interrupted by a previous act of his of a husband, for months after the marriage. own. In that hour of separation, I am persuaded This I mentioned to you before, and only now he never considered Mr. Bingham as an object repeat it in the statement of the proofs. Noth- of resentment or reproach. He was the author ing better, indeed, could be expected. Who can of his own misfortunes, and I can conceive him control the will of a mismatched, disappointed to have exclaimed, in the language of the poet, woman? Who can restrain or direct her pas- as they parted, sions? I beg leave to assure Mr. Howard (and I hope he will believe me when I say it), that I think his conduct toward this lady was just such as might have been expected from a husband who saw himself to be the object of disgust to the woman he had chosen for his wife, and it is with this view only that I shall call a gentleman to say how Mr. Howard spoke of this supposed, but, in my mind, impossible object of his adoration. How, indeed, is it possible to adore a woman when you know her affections are riveted to another? It is unnatural! A man may have that appetite which is common to the brutes, and too indelicate to be described; but he can never retain an affection which is returned with detestation. Lady Elizabeth, I understand, was, at one Exasperation of time, going out in a phaeton: "There Mr. Howard at she goes," said Mr. Howard; "God damn her I wish she may break her neck; I should take care how I got another." This may seem unfeeling behavior; but in Mr. Howard's situation, gentlemen, it was the most natural thing in the world, for they cordially hated one another. At last, however, the period arrived when this scene of discord became insupportable, and nothing could exceed the generosity and manly feeling of the noble person (the Duke of Norfolk), whose name I have been obliged to use in the course of this cause, in his interference to effect that separation which is falsely imputed to Mr. Bingham. He felt so much commiseration for this unhappy lady, that he wrote to her in the most affecting style. I believe I have got a letter from his Grace to Lady Elizabeth, dated Sunderland, July the 27th, that is, three days after their separation; but before he knew it had actually taken place it was written in consequence of one received from Mr. Howard upon the subject. Among other things he says, “I sincerely feel for you." Now if the Duke had not known at that time that Mr. Bingham had her earliest and legitimate affections, she could not have been an object of that pity which she received. She was, indeed, an object of the sincerest pity; and the sum and substance of this mighty seduction will turn out to be no more than this, that she was affectionately received by Mr. Bingham after the final period of voluntary separation. At four o'clock this miserable couple had parted by consent, and Their separation. the chaise was not ordered till she might be considered as a single woman by the abandonment of her husband. Had this separation been legal and formal, I should have applied to his Lordship, upon the most unquestionable authorities, to nonsuit the plaintiff; for this action being founded upon the loss of the wife's society, it must necessarily fall to the ground if it appears that the society, though not the marriage should be nominal Gentlemen, I have endeavored so to conduct this cause as to offend no man. I have At least the guarded against every expression which damages could inflict unnecessary pain; and, in merely doing so, I know that I have not only served my client's interests, but truly represented his honorable and manly disposition. As the case before you can not be considered by any reasonable man as an occasion for damages, I might here properly conclude. Yet, that I may omit nothing which might apply to any possible view of the subject, I will close by reminding you that my client is a member of a numerous family; that, though Lord Lucan's fortune is considerable, his rank calls for a correspond. ing equipage and expense; he has other children-one already married to an illustrious nobleman, another yet to be married to some man who must be happy indeed if he shall know her value. Mr. Bingham, therefore, is a man of no fortune; but the heir only of, I trust, a very distant expectation. Under all these circumstances, it is but fair to believe that Mr. Howard comes here for the reasons I have assigned, and not to take money out of the pocket of Mr. Bingham to put into his own. You will, therefore, consider, gentlemen, whether it would be creditable for you to offer what it would be disgraceful for Mr. Howard to receive. So completely had Mr. Erskine borne away the minds of the jury by this speech, that as some of them afterward stated, they had resolved to bring in a verdict for the defendant, with | macy to be renewed which led to such deploraheavy damages to be paid him by the plaintiff ! | ble consequences—that he was liable to render And even when the judge reminded them, in his a compensation to the plaintiff under these circharge, that no blame could be imputed to Mr. cumstances-and that they could not be justified Howard, who was left in total ignorance of the in affixing a brand upon the latter by giving previous engagement-that his wife's vows at the trifling damages-still they gave him but five altar ought to have been respected by Mr. Bing- hundred pounds, when the sum usually awarded, ham, not only at first, but to the end-that the at that time, between persons of a wealthy condefendant ought never to have allowed an inti-dition, was from ten to fifteen thousand pounds. SPEECH OF MR. ERSKINE IN BEHALF OF THOMAS HARDY WHEN INDICTED FOR HIGH TREASON, DELIV. ERED BEFORE THE COURT OF KING'S BENCH, NOVEMBER 1, 1794. INTRODUCTION. THOMAS HARDY was a shoemaker in London, and secretary of the "London Corresponding Society," whose professed object was to promote parliamentary reform-having branch societies in most parts of the kingdom. Rash and inflammatory speeches were undoubtedly made at the meetings of these associations, and many things contained in their letters among themselves, and their addresses to the public, were highly objectionable. "The grand object of these associations," says Mr. Belsham, who probably was well acquainted with their designs, "was unquestionably to effect a reform in Parliament upon the visionary, if not pernicious principles of the Duke of Richmond-universal suffrage and annual election. They contained a considerable proportion of concealed republicans, converts to the novel and extravagant doctrine of Paine; and there can be no doubt but that these people hoped, and perhaps in the height of their enthusiasm believed, that a radical reform in Parliament upon democratic principles would eventu ally lead to the establishment of a democratic government." Still, it is generally understood that the bulk of the members were attached to the Constitution. The government became alarmed at their proceedings, and instead of prosecuting for a misdemeanor those who could be proved to have used seditious language, they unhappily determined, at the instance of Lord Loughborough, to indict Hardy, Horne Tooke, and eleven others for high treason. The act laid hold of was that of proposing a National Convention, avowedly for the purpose of promoting parliamentary reform; but the government maintained that the real design was to use the convention, if assembled, as an instrument of changing the government. The indictment, therefore, alleged, 1. That Hardy and the others, in calling this convention, did conspire to excite insurrection, subvert and alter the Legislature, depose the King, and "bring and put our said Lord the King to death." 2. The overt acts charged were attempting to induce persons, through the press, and by letters and speeches, to send delegates to a convention called for the above-mentioned purposes; and also the preparation of a few pikes in some populous places, which, as the parties concerned maintained, were provided as a defense against illegal attacks. The case was opened on Tuesday, the 28th of October, 1794, by a speech from the Attorney General, Sir John Scott [afterward Lord Eldon], of nine hours in length. Never before had a trial for treason occupied more than one day; but in this instance the court sat during an entire week until after midnight, commencing every morning at eight o'clock. The Crown occupied the whole time, till after midnight Friday evening, with evidence against the prisoner; and Mr. Erskine then begged an adjournment to a somewhat later hour than usual the next day, that he might have time to look over his papers and make ready for the defense. To this the court objected as an improper delay of the jury, and proposed that the prisoner's witnesses should be examined while Mr. Erskine was preparing his reply. The following dialogue then ensued: Erskine. "I should be sorry to put the jury to any inconvenience; I do not shrink from my duty, but I assure your Lordship that during the week I have been nearly without natural rest, and that my physical strength is quite exhausted." Eyre, C. J. "What is it you ask for?" Erskine. "As I stated before, the Attorney General found it necessary to consume nine hours; I shall not consume half that time if I have an opportunity of doing that which I humbly request of the court." Eyre, C. J. "We have of fered you an expedient, neither of you say whether you accept it?" Mr. Gibbs, the other counsel for the prisoner, spurned the proposal, and Mr. Erskine requested an adjournment until twelve the next day, as essential to the fair defense of one who was on trial for his life. The Chief Justice, with apparent reluctance, agreed to eleven. Erskine. "I should be glad if your Lordships would allow another hour." Eyre, C. J. "I feel so much for the situation of the jury, that, on their account, I can not think of it." Erskine. "My Lord, I never was placed in such a situation in the whole course of my practice before; however, I will try to do my duty." Jury. "My Lord, we are extremely willing to allow Mr. Erskine another hour, if your Lordship thinks proper." Eyre, C. J. "As the jury ask it for you, I will not refuse you." |