I will prove, that on the marriage night she said, she would rather go to Newgate than to the embraces of her husband; and that day after day, and night after night, she spent

her time in tears.

Mr. Erskine here made a number of very just observations on the aristocracy of the country. He said, these were the most extraordinary times that were ever recorded in history, when the whole habitable earth seemed to be in a state of change and fluctuation. This cause begot in him many reflections. He had heard much of the aristocracy of the country; he had heard much of rank and dignity, and long might he hear of it, for rank and station must always exist, in some shape or other. Would to God the nobles of the land would imitate a little more closely the example of their illustrious ancestors, and instead of going from the opera to the play, and from the play to Ranelagh or to a masquerade, they would attend their hospitable halls! let them, like their fathers, spread innumerable blessings among the lower orders of the people; let them set an example to others of genuine morals; let them pay some regard and attention to the affections of their children; let the nobles of England do this, and they would do more to preserve the country than all the informations and terrors of state enginery that could be decreed. The necessary effect would be, an illustrious race of nobles, vigorous in mind and pure in morals. Such, he said, was the inveterate reluctance of this lady to Mr. How ard, that he was not allowed the privileges of a husband for months and months after the marriage. Her affection was irredeemably fixed upon another. What was the cause of Mr. Howard's uneasiness? According to

the plaintiff's case, it was the jealousy of Mr. Bingham. But what if it turned out on the other hand, that lord Fauconberg's family had seduced the wife of Mr. Bingham? for he said, he considered this lady as the wife of Mr. Bingham, and he could hardly consider himself in any other light than as a plaintiff in this cause.

Mr. Erskine said, he did not come there to reproach Mr. Howard, but to pity him, and he called on the jury to pity his client. He saw the woman of his heart fall into the hands of another. He went away a desponding man. His health declined. He went into the country to recruit it, and it appeared that for months and months he never saw this lady. The defendant was one of an illustrious family. He had sisters, one married into an illustrious family, and another yet to be married. Lord Lucan was a person of high rank. Mr. Bingham had no property, though he had some expectations. He was certain that Mr. Howard did not come into court for the purpose of taking a large sum of money out of the pockets of Mr. Bingham; and Mr. Erskine conceived it would not be very creditable to the jury to give to the plaintiff that which would be disgraceful in him to receive.

Mrs. Bishop was the first witness called on the part of the defendant. She said, she went into the family of lord Fauconberg about five weeks before the marriage of lady Elizabeth. She was lady Elizabeth's own woman. She remembered, that on the morning of her marriage she attended lady Elizabeth before she left her chamber. She cried very much, trembled exceedingly, and seemed very unhappy.

tful.

She was young and very beau

Mr. Howard was nearly of

her

court:

In general, Mr. Howard retired to rest before lady Elizabeth, who used to come home very late, at three, four, five, and six, o'clock in the morning. After she came home, she sometimes slept an hour in a chair, and the witness was forced to wake her and put her to bed. She recollected that lady Elizabeth once said, she would as soon go to Newgate as go to bed to her husband. Her ladyship was sometimes in very good spirits, and sometimes very dull. The witness once said something to lady Elizabeth about her wedding clothes. "Indeed, "Polly, replied her ladyship, when "I had these clothes I never thought "of marrying Mr. Howard." When the family was in Suffolk, and one of her ladyship's sisters was in the house, the witness recollected that lady Elizabeth left her husband's bed, and went to her sister's. The witness never saw nor heard any words between them: but lady Elizabeth was very unhappy at times. One day, after she had been at Kensington-gardens, her ladyship seemed to be very unhappy. The witness asked her what was the

matter? She replied, she had met Bingham in the gardens, and that he had turned up his nose at her.

Lord George Conway and Mr. Greville were called to prove that Mr. Bingham was acquainted with lady Elizabeth before her marriage with Mr. Howard, and that their regard and affection was mutual. They said, that after lady Elizabeth's marriage with Mr. Howard Mr. Bingham went to Bath, Cheltenham, &c. and that he did not see her for many months after her marriage.

Mr. Singleton said, he saw Mr. Howard and lady Elizabeth shortly after their marriage, and that she did not appear to be extremely fond of Mr. Howard. He saw reasons for Mr. Howard to be dissatisfied with the conduct of his lady. Mr. Howard told him he did not think that she was particularly attached to him, and that she would not allow him to use the privileges of a husband. This was about six weeks or two months after the marriage, and she had refused down to that time.

Charles Morris was next called. Mr. Erskine said, he did not wish that any more evidence should come out, which was so distressing to every person nearly connected with the parties, and therefore he had no objection, if it was agreeable to Mr. Mingay, that the cause should stop here.

This being agreed to, the lord chief justice addressed the jury as follows:

"Gentlemen of the jury. The cause is now arrived at that period which calls for the discharge of a duty which peculiarly belongs to you, to ascertain the damages which

the

I had not been long on the seat of justice, before I felt I should best discharge my duty to the public, by making the law of the land subservient to the laws of morality and religion; and therefore, in various cases that have come before me, when I saw a considerable degree of guilt, I have pressed the judgement of juries to go along with me in enforcing the sanctions of religion and morality by the heavy penalties of the laws and I have found juries co-operate with me in trying how far the immorality of a libertineage would be corrected, by letting all parties know, that they best consulted their own interest by discharging those duties they owed to God and society.

"Causes of this kind have very different complexions. Causes have come before me, where I have thought it incumbent on juries to discharge plaintiffs with small damages. Causes of this kind have come before me, where I have thought the very cause of action failed, and therefore the plaintiff has been nonsuited. There have also been causes of this sort where juries have given very large damages,

"This cause has about it a character and complexion different from al I ever witnessed, different from all I have heard of in the history of the jurisprudence of this country. It is emphatically an unfortunate cause. "If I had found the defendant making use of the friendship of the plaintiff, entering his house, and obtaining the confidence of his wife; if I had found him using the liberty of access as the means of seduction, I should have thought no dainages VOL. XXXVI.

put on the record too high for the plaintiff to receive at your hands, But this is not that case. To the plaintiff no imputation on earth belongs. He appears to have acted with the honour belonging to the

most illustrious house of which he is so important a meinber. But at the moment he received this Lady's hand, he did not receive her affections. She was never seduced from his arms, because her affections were engaged from the beginning, and irredeemably fixed upon another.To the defendant, for a great part of the time, I can impute no blame at all; he did that which was ditficult for a young man; he seems to have bridled his passion for a considerable time; he retired with his friends, young men, branches of honourable families, to the country, to see whether absence might not wean his affections. Unfortunately for both, the absence was not of very long continuance; he returned to town-they saw each other. The half-extinguished flame was again lighted up, and the unfortunate consequence followed which you have heard.

"It is for you, on this occasion, to ascertain the damages. The action complains of the loss of the comfort and society a man ought to receive in the married state. Unfortunately for the plaintiff, this comfort and society hardly ever began-but still he has a right to expect some damages. I should give damages, not merely nominal damages, but damages not to a very large amount. These damages will shew the sense you have of the immorality, for that is not to be defended. You will not give great damages which shall press a young man, who, it is clear, at one time K

of