which nothing but slander and falsehood could sup port. Their duty as public and private men was, perhaps, as incompatible as the duty of my clients; and they have chosen. like them, to fulfil the public one, and, indeed, nothing less than the great ability and eloquence (I will not say the propriety) with which that public duty was fulfilled at the trial, could have saved the prosecution from ridicule and contempt. As for us, I am sure we have lost nothing with the world, or with the court, by our moderation; nor could the prejudices against us, even if the trial had not dispelled them, reach us within these venerable walls. Nothing, unsupported by evidence, that has been said here, or any where, will have any other effect upon the court, than to inspire it with more abundant caution in pronouncing judgment. Judges in this country are not expected to shut themselves up from society; and therefore, when a subject that is to pass in judgment before them, is of a public and popular nature, and base arts have been used to excite prejudices, it will only make wise and just magistrates (such as I know, and rejoice that I am addressing myself to) the more upon their guard, rigidly to confine all their views to the record of the charge which lies before them, and to the evidence by which it has been proved, and to be doubly jealous of every avenue, by which human prejudices can force their way to mislead the soundest understandings, and to harden the most upright hearts.

580856

[The court, by its judgment, only imposed a fine of one thousand pounds upon each of the defendants; a sentence which we believe, was considered at the time by the whole profession of the law, and by all others qualified to consider such a subject as highly just and proper under all the circumstances of the case. The accusation was weighty, but the judges were bound, by their oaths, to weigh all the circumstances of mitigation, as they appeared from the facts in evidence, and from the pleadings of the counsel at the bar. They were not to pronounce a severe judgment because the House of Commons was the prosecutor. Mr. Burke, however, who had taken a very warm, and, we have no doubt, an honest part, in the prosecution, took great offence at the lenient conclusion; and repeatedly animadverted upon it in the House of Commons. There can be no doubt of the high value of the privilege possessed by the representatives of the people, to be public accusers; but for that very reason they can have no right to determine, or to interfere with the judgments of other tribunals, when they themselves are the prosecutors. If judges, indeed, conduct themselves corruptly, or partially, upon a prosecution by the House of Commons, or upon any other judicial proceeding whatsoever, it is a high and valuable privilege of the people's representatives in parliament to proceed against the offenders by impeachment; but it is not the duty of any member of that high assembly, to disparage the decisions of the judges, by invidious observations, without any public proceeding which may bring their merits, or demerits, into public examination. Such a course is injurious to those who have been the subjects of them, disrespectful to the magistrates who have pronounced them, and contrary to the spirit and character of the British constitution.]

MORTON AGAINST FENN.

SPEECH IN THE COURT OF KING'S BENCH AGAINST A NEW TRIAL.

PREFACE.

THE following speech may appear, at first glance, to be scarcely worthy of a place in a col. lection of pleadings, upon so many interesting subjects; but it will be found, on examination, to contain very important principles of law. The occasion of it was shortly this. A woman of the name of Morton, who was the plaintiff, in a cause tried before Lord Mansfield, at the sittings at. Guildhall, in London, had hired herself to be housekeeper to a Mr. Fenn, who was the defend.. ant, an old and infirm man. Mrs. Morton, the plaintiff, was not a young woman, and had no great personal recommendations. The old gen tleman, however, thought otherwise; and, to induce his housekeeper to cohabit with him, had promised to marry her; the breach of which promise was the foundation of an action to recover damages.

The cause was conducted by Lord Erskine, who had not then been long at the bar. There is

no note of what passed at the trial, nor is it material; except that, after the plaintiff's case had been opened, and after some cross examination of the witness who proved the promise, with a view to ridicule the person and manners of the plaintiff, Mr. Wallace, then attorney general, and who was a very able nisi prius advocate, endeavored, as the lawyers call it, without calling witnesses, to laugh the cause out of court, by representing, that neither of the parties to the contract had any loss from the breach of it, as the plaintiff was an ugly old woman, and the defendant, who was then in court, and whom he pointed out to the jury to make the scene more ludicrous, was not a person, in the loss of whom, as A HUSBAND, there could be any claim to more than a farthing damages. The jury, however, returned a verdict of Two THOUSAND POUNDS;. and, în the term which followed, a rule having been obtained by the Attorney General for setting aside the verdict, and for a new trial, on the ground, that the damages were EXCESSIVE, the following very short speech was made by Mr. Erskine, maintaining his client's right to the whole money, and denying the jurisdiction of the court, in such a case, to impeach the verdict of the jury.

Perhaps there is no subject more important. in the whole volumes of the law, than that which regards the distinct jurisdictions of judges and

juries in that mixed form of trial, which is the peculiar and the best feature in the British constitution. The subject, as it applies to criminal cases, is treated of in every possible point of view in the Dean of St. Asaph's case, in the first volume of the former collection; but it is most important, also (even as it regards civil cases), that the distinct officers of judges and juries. should be thoroughly understood, and rigidly maintained. If in civil actions the court had no jurisdiction to set aside verdicts, and to grant new trials, even in cases where the jury may either have mistaken the law, or where they may have assessed damages by no means commen surate with the loss of property, or with the injury sustained by the party complaining; if, in cases where juries may have assessed damages, either manifestly and grossly excessive, or un. justly inadequate, the court had no jurisdiction to send the case to another hearing for more mature consideration, trial by jury, the boast and glory of our country, would be as great a national. evil, as it is now a benefit and a blessing; but if,. on the other hand, revisions of verdicts were suf fered to take place, unless in cases of manifest injustice; if new trials were to be awarded, be-cause judges might differ from juries upon occa sions where men of sense and justice might reasonably differ from one another, such a proceed. ing would be the substitution of judicial authority,