the destruction of the King. On the contrary, he always maintained his loyalty lamented that he could not go again to fight his battles in the field; and it will be proved, that only a few days before the period in question, being present when a song was sung, indecent, as it regarded the person and condition of his Majesty, he left the room with loud expressions of indignation, and immediately sang "God save the King," with all the enthusiasm of an old soldier, who had bled in the service of his country.

sentiment of

the strongest points in the

case.

I confess to you, gentlemen, that this last cirHis prevailing cumstance, which may, to some, aployalty one of pear insignificant, is, in my mind, most momentous testimony. For if this man had been in the habit of associating with persons inimical to the government of our country, so that mischief might have been fairly argued to have mixed itself with madness (which, by-the-by, it frequently does); if it could in any way have been collected that, from his disorder, more easily inflamed and worked upon, he had been led away by disaffected persons to become the instrument of wickedness; if it could have been established that such had been his companions and his habits, I should have been ashamed to lift up my voice in his defense. I should have felt that, however his mind might have been weak and disordered, yet if his understanding sufficiently existed to be methodically acted upon as an instrument of malice, I could not have asked for an acquittal. But you find, on the contrary, in the case before you, that, not withstanding the opportunity which the Crown has had, and which, upon all such occasions, it justly employs to detect treason, either against | the person of the King or against his government, not one witness has been able to fix upon the prisoner before you any one companion, of even a doubtful description, or any one expression from which disloyalty could be inferred, while the whole history of his life repels the imputation. His courage in defense of the King and his dominions, and his affection for his son, in such unanswerable evidence, all speak aloud against the presumption that he went to the theater with a mischievous intention.

attempting the

taking his undoubted insanity into consideration, because it is his unquestionable insanity which alone stamps the effusions of his mind with sincerity and truth.

Bomething

lead to his be

The idea which had impressed itself, but in most confused images, upon this un- He felt it nee fortunate man, was, that he must be essary to do destroyed, but ought not to destroy which would himself. He once had the idea of ing put to death firing over the King's carriage in the Judicially. street; but then he imagined he should be immediately killed, which was not the mode of propitiation for the world. And as our Savior, before his passion, had gone into the garden to pray, this fallen and afflicted being, after he had taken the infant out of bed to destroy it, returned also to the garden, saying, as he afterward said to the Duke of York, "that all was not over

that a great work was to be finished;" and there he remained in prayer, the victim of the same melancholy visitation.

this case with

Gentlemen, these are the facts, freed from even the possibility of artifice or disguise; comparison of because the testimony to support them that of Lord will be beyond all doubt. In contem- Ferrers. plating the law of the country, and the precedents of its justice to which they must be applied, I find nothing to challenge or question. I approve of them throughout. I subscribe to all that is written by Lord Hale. I agree with all the authorities cited by the Attorney General, from Lord Coke; but above all, I do most cordially agree in the instance of convictions by which he illustrated them in his able address. I have now lying before me the case of Earl Ferrers: unquestionably there could not be a shadow of doubt, and none appears to have been entertained, of his guilt. I wish, indeed, nothing more than to contrast the two cases; and so far am I from disputing either the principle of that condemnation, or the evidence that was the founda tion of it, that I invite you to examine whether any two instances in the whole body of the criminal law are more diametrically opposite to each other than the case of Earl Ferrers and that now before you. Lord Ferrers was divorced from his wife by act of Parliament; and a person of the name of Johnson, who had been his steward, had taken part with the lady in that proceeding, and had conducted the business in carrying the act through the two Houses. Lord Ferrers consequently wished to turn him out of a farm which he occupied under him; but his estate being in trust, Johnson was supported by the trustees in his possession. There were, also, some differences respecting coal-mines; and in consequence of both transactions, Lord Ferrers took up the most violent resentment against him. Let me

To recur again to the evidence of Mr. RichPeculiarity of ardson, who delivered most honorable bifone and impartial testimony. I certainly King's life. am obliged to admit, that what a prisoner says for himself, when coupled at the very time with an overt act of wickedness, is no evidence whatever to alter the obvious quality of the act he has committed. If, for instance, I, who am now addressing you, had fired the same pistol toward the box of the King, and, having been dragged under the orchestra and secured for criminal justice, I had said that I had no intention to kill the King, but was weary of my life, and meant to be condemned as guilty; would any man, who Mr. Erskine goes on to consider, the statement of the was not himself insane, consider that as a de- facts is not only clear and beautiful in itself, but is fense? Certainly not: because it would be with-shaped throughout with a particular reference to the out the whole foundation of the prisoner's previous condition, part of which it is even difficult to apply closely and directly by strict evidence, without

10 The reader will remark, that in the cases which

case of Hadfield, so as to bring out the points of contrast in strong relief, and thus open the way for the distinctions which follow. This kind of preparation is one of Mr. Erskine's greatest excellence.

here observe, gentlemen, that this was not a re- | ruin his country; and although he appeared from sentment founded upon any illusion; not a resent- the evidence to be a man of most wild and turment forced upon a distempered mind by fallacious images, but depending upon actual circumstances and real facts; and, acting like any other man under the influence of malignant passions, he repeatedly declared that he would be revenged on Mr. Johnson, particularly for the part he had taken in depriving him of a contract respecting the mines.

Now, suppose Lord Ferrers could have showed that no difference with Mr. Johnson had ever existed regarding his wife at all-that Mr. Johnson had never been his steward—and that he had only, from delusion, believed so when his situation in life was quite different. Suppose, further, that an illusive imagination had alone suggested to him that he had been thwarted by Johnson in his contract for these coal-mines, there never having been any contract at all for coal-mines-in short, that the whole basis of his enmity was without any foundation in nature, and had been shown to have been a morbid image imperiously fastened upon his mind. Such a case as that would have exhibited a character of insanity in Lord Ferrers extremely different from that in which it was presented by the evidence to his peers. Before them, he only appeared as a man of turbulent passions, whose mind was disturbed by no fallacious images of things without existence; whose quarrel with Johnson was founded upon no illusions, but upon existing facts; whose resentment proceeded to the fatal consummation with all the ordinary indications of mischief and malice; and who conducted his own defense with the greatest dexterity and skill. WHO, THEN, COULD DOUBT THAT LORD FERRERS WAS A MURDERER? When the act was done, he said, "I am glad I have done it. He was a villain, and I am revenged." But when he afterward saw that the wound was probably mortal, and that it involved consequences fatal to himself, he desired the surgeon to take all possible care of his patient; and, conscious of his crime, kept at bay the men who came with arms to arrest him: showing, from the beginning to the end, nothing that does not generally accompany the crime for which he was condemned. He was proved, to be sure, to be a man subject to unreasonable prejudices, addicted to absurd practices, and agitated by violent passions. But the act was not done under the dominion of uncontrollable disease; and whether the mischief and malice were substantive, or marked in the mind of a man whose passions bordered upon, or even amounted to insanity, it did not convince the Lords that, under all the circumstances of the case, he was not a fit object of criminal justice.

bulent manners, yet the people round Guildford, who knew him, did not, in general, consider him to be insane. His counsel could not show that any morbid delusion had ever overshadowed his understanding. They could not show, as I shall, that just before he shot at Lord Onslow, he had endeavored to destroy his own beloved child. It was a case of human resentment.

of Oliver.

I might instance, also, the case of Oliver, who was indicted for the murder of Mr. Wood, with that a potter, in Staffordshire. Mr. Wood had refused his daughter to this man in marriage. My friend, Mr. Milles, was counsel for him at the assizes. He had been employed as a surgeon and apothecary by the father, who forbid him his house, and desired him to bring in his bill for payment; when, in the agony of disappointment, and brooding over the injury he had suffered, on his being admitted to Mr. Wood to receive payment, he shot him upon the spot. The trial occupied great part of the day; yet, for my own part, I can not conceive that there was any thing in the case for a jury to deliberate on. He was a man acting upon existing facts, and upon human resentments connected with them. He was at the very time carrying on his business, which required learning and reflection, and, indeed, a reach of mind beyond the ordinary standard, being trusted by all who knew him as a practitioner in medicine. Neither did he go to Mr. Wood's under the influence of illusion; but he went to destroy the life of a man who was placed exactly in the circumstances which the mind of the criminal represented him. He went to execute vengeance on him for refusing his daughter. In such a case there might, no doubt, be passion approaching to frenzy; but there wanted that characteristic of madness to emancipate him from criminal justice.

the murderer

There was another instance of this description in the case of a most unhappy woman, with that of who was tried, in Essex, for the mur- of Mr. Er der of Mr. Errington, who had seduced rington. and abandoned her and the children she had borne to him. It must be a consolation to those who prosecuted her, that she was acquitted, as she is at this time in a most undoubted and deplorable state of insanity. But I confess, if I had been upon the jury who tried her, I should have entertained great doubts and difficulties; for, although the unhappy woman had before exhibited strong marks of insanity, arising from grief and disappointment, yet she acted upon facts and circumstances which had an existence, and which were calculated, upon the ordinary principles of human action, to produce the most violent resentIn the same manner, Arnold, who shot at Lord ment. Mr. Errington having just cast her off, With that of Onslow, and who was tried at Kingston and married another woman, or taken his under soon after the Black Act passed on the his protection, her jealousy was excited to such accession of George I. Lord Onslow having been a pitch as occasionally to overpower her undervery vigilant as a magistrate in suppressing clubs, standing; but when she went to Mr. Errington's which were supposed to be set on foot to disturb house, where she shot him, she went with the exthe new government, Arnold had frequently press and deliberate purpose of shooting him. been heard to declare that Lord Onslow would | That fact was unquestionable. She went there

Arnold.

with a resentment long rankling in her bosom, | there to be enthroned together. His mind, in bottomed on an existing foundation. She did not short, was overpowered and overwhelmed with act under a delusion, that he had deserted her distraction. 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.

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 bench 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 circumstances 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 subordi nation to the realities of his case.

and circumstances of the jury.

SPEECH, &c.

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 PERSONALLY KNOw; to men, honorable in 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 countrythat it is possible there can exist such a body of men as YOU are. It is the great privilege of the

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.

defendant in suffering the case to go by default.

The defendant has, on this occasion, suffered judgment by default: other adulterers Object of the have done so before him. Some have done so under the idea that, by suffering 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 them.

It is not long, however, since such persons have had an opportunity of judging how much