possession, is untainted with these ?), is to keep a rigorous watch over discussion. For our own parts, in proportion to our confidence in the excellence of the constitution, is our belief in its stability; and we shall never consent to think its only defences are force and fear, so long as we see no reason for its dreading to be supported by fair argument. When was there a work ever published, which, if let alone, or left to be refuted by an antagonist, would have shaken the government, or even materially affected the tranquillity of the state for a single hour? And whence arises this nameless dread of something, which no man ever saw, or could trace in its effects? It arises from delusions practised by those who know far better. Bad rulers hate free discussion; and profligate weak princes, and their favourites and ministers, who have not the sense to pursue a system of arbitrary measures, or to defend their schemes by putting down inquiry, are alive to the personal abuse with which they are assailed, and hate the light which exposes their ridiculous or hateful features. All this would, however, not suffice, as long as juries were the judges of libel. But the press, by being too often prostituted to the defamation of private character, loses many a friend who might help it in the day of trial, and acquires even pretty determined enemies among men, whom otherwise the arts of a corrupt government would not move from their independent principles. To persons in this predicament we chiefly address ourselves; and implore them to consider, that they act a weak and unmanly part, in proscribing all the good, for the crimes of a few unworthy men; and, if they will not excuse the errors of the press, in consideration of its virtues-of the vast benefits which it has rendered the world;-if they will not bear in mind the saying of Lord Chatham, that it is, like the air, a chartered libertine; let them at least reflect on the ruin which must follow, if they sacrifice its liberty to a desire of punishing those who abuse it: and, calmly asking themselves what mighty harm a few scurrilous paragraphs can do an immense establishment, fortified all around with revenues, armies, and functionaries-let them leave those who malign our institutions, to be answered by reasoning, and by appeals to the fact ;-while for those who abuse the privileges of discussion, by invading the sanctity of private character, there are just penalties prepared, which the warmest advocates of a free press would be the last to wish diminished, or repealed.

The argument in Morton v. Ferm, is extremely short, and only valuable on account of the principle which it illustrates. A verdict had heen obtained of 2000l. by the plaintiff, who was formerly

5

formerly housekeeper to the defendant, and had cohabited with him on promise of marriage. After living with her, he had contrived to get rid of her, and married another person. In consequence of this treatment and disappointment, the plaintiff's health, as well as peace of mind, had been destroyed. The plaintiff was a widow, past the usual age of marriage; the defendant an old man; and both parties remarkably deficient in personal charms. The principle contended for by Mr Erskine, in showing cause against a rule obtained by Mr Wallace for a new trial on the ground of excessive damages, was, that though, in cases where the claim is regulated by pecuniary, or other contracts of a certain definite nature, or founded on damages done to property in a certain calculable shape, the Court may interfere, if the jury have gone very wide of the mark; yet, where the compensation is for an injury not definite, nor capable of being accurately computed, the jury are the fit judges of the amount, provided the case has been fairly and fully before them.. This ground he maintained with success; and the rule was discharged.

We hasten to the two remaining speeches in this volume, (passing over that in the Bishop of Bangor's case as well known) those in cases of adultery. They contain some of the finest specimens of Mr Erskine's eloquence; and we trust we shall be able to lay a few of the passages before our readers, without being under the necessity of particularizing names. In the one, he was counsel for the plaintiff; and the defendant having suffered judgment to go by default, this address was delivered be fore the Under-sheriff and his jury, impannelled to assess the damages, in execution of the writ of inquiry. In the other, he was counsel for the defendant at the trial in the Court of King'sBench.

Perhaps the circumstances in which the first of these speeches was delivered, are little known to many of our readers. The majesty of English justice,-which is ample and full, while the parties are at issue, and the Court in which the record is, or the Judge to whom it is sent for trial, have the whole treatment of the cause,-sinks into rather an obscure form, when the general statement of the facts is no longer disputed, and the only remaining question between the parties relates to the amount of the compensation due. This point, frequently the most important of all, is left to the ministerial officer, or his deputy, who is generally a practising attorney, assisted by a junior barrister, and a common jury. The Court, thus constituted, meets in any room which may be provided for the purpose:-In the present case, it assembled in the King's Arms Tavern, in Palace

Yard.

Yard. The first object of Mr Erskine was, therefore, to counteract the natural effect of these circumstances, and to raise the dignity of the place, and form of procedure, by all his arts; and he judiciously recurs to the same topic in his peroration. After describing the early intimacy, and long-continued friendship of the parties, he proceeds

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 connexion, had most probably taken place. I will leave you to consider what must have been the feelings of such a husband, upon the fatal discovery that his wife, and such a wife, had conducted herself 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 for ever 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 himhe 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 to 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 honour 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. p. 176-178.

We know not how this may please some readers, such as those few who thought our praise of the other speeches too unbounded; but to us it does appear the perfection of simple and beautiful composition. We extract the following reflections on the law as it regards this subject-but without pursuing the subject which they start; as we may have another opportunity of treating it at large.

But there are other wrongs which cannot be estimated in money "You cannot minister to a mind diseas'd: 29

You cannot redress a man who is wronged beyond the possibility of redress-the law has no means of restoring to him what he has lost.

-God

-God himself, as he has constituted human nature, has no means of alleviating such an injury as the one I have brought before you.While the sensibilities, affections, and feelings he has given to man remain, it is impossible to heal a wound which strikes so deep into the soul. When you have given to a plaintiff, in damages, all that figures can number, it is as nothing;-he goes away hanging down his head in sorrow, accompanied by his wretched family, dispirited and dejected. Nevertheless, the law has given a civil action for adultery, and, strange to say, it has given nothing else.-The law commands that the injury shall be compensated (as far as it is practicable) IN MONEY, because courts of civil justice have no other means of compensation THAN money; and the only question, therefore, and which you upon your oaths are to decide, is this-Has the plaintiff sustained an injury up to the extent which he has complained of? Will twenty thousand pounds place him in the same condition of comfort and happiness that he enjoyed before the adultery, and which the adulterer has deprived him of? You know that it will not.Ask your own hearts the question, and you will receive the same answer. I should be glad to know, then, upon what principle, as it regards the private justice which the plaintiff has a right to, or upon what principle, as the example of that justice affects the public and the remotest generations of mankind, you can reduce this demand even in a single farthing.' p. 180, 181.

Having applied these reflexions, and brought them all to bear on his case, so as to increase the amount of damages by their assistance, he touches another string for the same purpose; and we pray our readers to mark, that, wide as he may seem to begin from the point he aims at, and largely as his fancy may appear to roam, luxuriating in the outskirts of his subject, not an idea is ever started by this great advocate, which the matter in issue could have spared, or which he does not bring round to the very object he has immediately in view; and then we find, that it has been not merely the most pleasing train of description which he has been pursuing, but the course most directly conducive to the accomplishment of his purpose.

'I had occasion, not a great while ago, to remark to a jury, that the wholesome institutions of the civilized world came seasonably in aid of the dispensations of Providence for our well-being in the world. If I were to ask, what it is that prevents the prevalence of the crime of incest, by taking away those otherwise natural impulses, from the promiscuous gratification of which we should become like the beasts of the field, and lose all the intellectual endearments which are at once the pride and the happiness of man?-What is it that renders our houses pure, and our families innocent ?--It is that, by the wise institutions of all civilized nations, there is placed a kind of guard against the human passions, in that sense of impropriety and dishonour, which the law has raised up, and impressed with almost

VOL. XIX. No. 38.

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the

the force of a second nature. This wise and politic restraint beats down, by the habits of the mind, even a propensity to incestuous commerce, and opposes those inclinations, which nature, for wise purposes, has implanted in our breasts at the approach of the other sex. It holds the mind in chains against the seductions of beauty. It is a moral feeling in perpetual opposition to human infirmity.It is like an angel from heaven placed to guard us against propensities which are evil. It is that warning voice, Gentlemen, which enables you to embrace your daughter, however lovely, without feeling that you are of a different sex.— -It is that which enables you, in the same manner, to live familiarly with your nearest female relations, without those desires which are natural to man.

Next to the tie of blood (if not, indeed, before it), is the sacred and spontaneous relation of friendship. The man who comes under the roof of a married friend, ought to be under the dominion of the same moral restraint: and, thank God, generally is so, from the operation of the causes which I have described. Though not insensible to the charms of female beauty, he receives its impressions under a habitual reserve, which honour imposes. Hope is the parent of desire, and honour tells him he must not hope.-Loose thoughts may arise, but they are rebuked and dissipated

"Evil into the mind of God or man

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May come and go, so unapprov'd, and leave "No spot or blame behind. "

"Gentlemen, I trouble you with these reflexions, that you may be able properly to appreciate the guilt of the defendant; and to show you, that you are not in a case where large allowances are to be made for the ordinary infirmities of our imperfect natures. When a man does wrong in the heat of sudden passion-as, for instance, when, upon receiving an affront, he rushes into immediate violence, even to the deprivation of life, the humanity of the law classes his offence amongst the lower degrees of homicide; it supposes the crime to have been committed before the mind had time to parley with itself. But is the criminal act of such a person, however disastrous may be the consequence, to be compared with that of the defendant? -Invited into the house of a friend,-received with the open arms of affection, as if the same parents had given them birth and bred them ;-in THIS situation, this most monstrous and wicked defendant deliberately perpetrated his crime; and, shocking to relate, not only continued the appearances of friendship, after he had violated its most sacred obligations, but continued them as a cloak to the barbarous repetitions of his offence-writing letters of regard, whilst, perhaps, he was the father of the last child, whom his injured friend and companion was embracing and cherishing as his own.--What protection can such conduct possibly receive from the humane consideration of the law for sudden and violent passions? A passion for a woman is progressive-it does not, like anger, gain an uncontroled ascendancy in a moment; nor is a modest matron to be seduced in