Gentlemen, I am not preaching a religion which men can scarcely practice. I am not affecting a severity of morals beyond the standard of those whom I am accustomed to respect, and with whom I associate in common life. I am not making a stalking horse of adultery, to excite exaggerated sentiment. This is not the case of a gentleman meeting a handsome woman in a public street or in a place of public amusement, where, finding the coast. clear for his addresses, without interruption from those who should interrupt, he finds himself engaged (probably the successor of another) in a vain and transitory intrigue. It is not the case of him who, night after night, falls in with the wife of another, to whom he is a stranger, in the boxes of a theater, or other resorts of pleasure, inviting admirers by indecent dress and deportment, unattended by anything which bespeaks the affectionate wife and mother of many children. Such connections may be of evil example; but I am not here to reform public manners, but to demand private justice. It is impossible to assimilate the sort of cases I have alluded to, which ever will be occasionally occurring, with this atrocious invasion of household peace,-this portentous disregard of everything held sacred among men, good or evil. Nothing, indeed, can be more affecting than even to be called upon to state the evidence I must bring before you. I can scarcely pronounce to you that the victim of the defendant's lust was the mother of nine children, seven of them females and infants, unconscious of their unhappy condition, deprived of their natural guardian, separted from her forever, and entering the world with a dark cloud hanging over them. But it is not in the descending line alone that the happiness of this worthy family is invaded. It hurts me to call before you the venerable progenitor of both the father and the children, who has risen by extraordinary learning and piety to his eminent rank in the church; and who, instead of receiving, unmixed and undisturbed, the best consolation of age, in counting up the number of his descendants, carrying down the name and honor of his house to future times, may be forced to turn aside his face from some of them that bring to his remembrance the wrongs which now oppress him, and which it is his duty to forget, because it is his, otherwise impossible, duty to forgive them.

Gentlemen, if I make out this case by evidence (and, if I do not, forget everything you have heard, and reproach me for having abused your honest feelings), I have established a claim for damages that has no parallel in the annals of fashionable adultery. It

is rather like the entrance of Sin and Death into this lower world. The undone pair were living like our first parents in Paradise till this demon saw and envied their happy condition. Like them, they were in a moment cast down from the pinnacle of human happiness into the very lowest abyss of sorrow and despair. In one point, indeed, the resemblance does not hold, which, while it aggravates the crime, redoubles the sense of suffering. It was not from an enemy, but from a friend, that this evil proceeded. I have just had put into my hand a quotation from the Psalms upon this subject, full of that unaffected simplicity which so strikingly characterizes the sublime and sacred poet:

"It is not an open enemy that hath done me this dishonor, for then I could have borne it.

"Neither was it mine adversary that did magnify himself against me, for then, peradventure, I would have hid myself from him.

"But it was even thou, my companion, my guide, mine own familiar friend."

This is not the language of counsel, but the inspired language of truth. I ask you solemnly, upon your honors and your oaths, if you would exchange the plaintiff's former situation for his present for a hundred times the compensation he requires at your hands. I am addressing myself to affectionate husbands, and to the fathers of beloved children. Suppose I were to say to you: "There is twenty thousand pounds for you. Embrace your wife for the last time, and the child that leans upon her bosom and smiles upon you; retire from your house and make way for the adulterer; wander about, an object for the hand of scorn to point its slow and moving finger at; think no more of the happiness and tranquillity of your former state,-I have destroyed them forever. But never mind, don't make yourself uneasy, here is a draft upon my banker, it will be paid at sight,-there is no better man in the city." I can see you think I am mocking you, gentlemen, and well you may, but it is the very pith and marrow of this cause. It is impossible to put the argument in mitigation of damages in plain English without talking such a language as appears little better than an insult to your understandings, dress it up as you will. But it may be asked: If no money can be an adequate, or, indeed, any, compensation, why is Mr. Markham a plaintiff in a civil action? Why does he come here for money? Thank God, gentlemen, it is not my fault. I take honor to myself that I was one of those who endeavored to put an end to this species of action by the adoption of a more salutary course of proceeding. I take honor

to myself that I was one of those who supported in parliament the adoption of a law to pursue such outrages with the terrors of criminal justice. I thought then, and I shall always think, that every act malum in se, directly injurious to an individual, and most pernicious in its consequences to society, should be considered to be a misdemeanor. Indeed, I know of no other definition of the term. The legislature, however, thought otherwise, and I bow to its decision; but the business of this day may produce some changes of opinion on the subject. I never meant that every adultery was to be similarly considered. Undoubtedly there are cases where it is comparatively venial, and judges would not overook the distinctions. I am not a pretender to any extraordinary purity. My severity is confined to cases in which there can be but one sentiment among men of honor as to the offense, though they may differ in the mode and measure of its correction.

It is this difference of sentiment, gentlemen, that I am alone afraid of. I fear you may think there is a sort of limitation in verdicts, and that you may look to precedents for the amount of damages, though you can find no precedent for the magnitude of the crime; but you might as well abolish the action altogether as lay down a principle which limits the consequences of adultery to what it may be convenient for the adulterer to pay. By the adoption of such a principle, or by any mitigation of severity, arising even from an insufficient reprobation of it, you unbar the sanctuary of domestic happiness, and establish a sort of license for debauchery, to be sued out like other licenses, at its price. A man has only to put money into his pocket, according to his degree and fortune, and he may then debauch the wife or daughter of his best friend, at the expense he chooses to go to. He has only to say to himself what Iago says to Roderigo in the play: "Put money in thy purse-go to put money in thy purse."

Persons of immense fortunes might, in this way, deprive the best men in the country of their domestic satisfactions, with what to them might be considered as impunity. The most abandoned profligate might say to himself, or to other profligates: "I have suffered judgment by default. Let them send down their deputy sheriff to the King's Arms Tavern. I shall be concealed from the eye of the public. I have drawn upon my banker for the utmost damages, and I have as much more to spare to-morrow if I can find another woman whom I would choose to enjoy at such a price." In this manner I have seen a rich delinquent, too lightly

Othello, Act i., Scene 3.

Veeder-12.

fined by courts of criminal justice, throw down his bank notes to the officers, and retire with a deportment, not of contrition, but contempt.

For these reasons, gentlemen, I expect from you to-day the full measure of damages demanded by the plaintiff. Having given such a verdict, you will retire with a monitor within confirming that you have done right. You will retire in sight of an approving public, and an approving Heaven. Depend upon it, the world cannot be held together without morals; nor can morals maintain their station in the human heart without religion, which is the corner-stone of the fabric of human virtue.

We have lately had a most striking proof of this sublime and consoling truth in one result, at least, of the Revolution which has astonished and shaken the earth. Though a false philosophy was permitted, for a season, to raise up her vain fantastic front, and to trample down the Christian establishments and institutions, yet, on a sudden, God said: "Let there be light, and there was light." The altars of religion were restored. Not purged, indeed, of human errors and superstitions; not reformed in the just sense of reformation; yet the Christian religion is still re-established, leading on to further reformation, fulfilling the hope that the doctrines and practice of Christianity shall overspread the face of the earth.

Gentlemen, as to us, we have nothing to wait for. We have long been in the center of light. We have a true religion and a free government, and you are the pillars and supporters of both.

I have nothing further to add, except that, since the defendant committed the injury complained of, he has sold his estate, and is preparing to remove into some other country. Be it so. Let him remove; but you will have to pronounce the penalty of his return. It is for you to declare whether such a person is worthy to be a member of our community. But if the feebleness of your jurisdiction, or a commiseration which destroys the exercise of it, shall shelter such a criminal from the consequences of his crimes, individual security is gone, and the rights of the public are unprotected. Whether this be our condition or not, I shall know by your verdict.

ARGUMENT IN DEFENSE OF JOHN STOCKDALE, IN THE COURT OF KING'S BENCH, BEFORE LORD CHIEF JUSTICE KENYON AND A SPECIAL JURY, 1789.

STATEMENT.

This was a prosecution directed against John Stockdale, an eminent bookseller of London, for publishing a pamphlet in defense of Warren Hastings which contained severe strictures upon the latter's prosecutors. The well-known articles of impeachment against Warren Hastings, as prepared by Edmund Burke, were printed and widely circulated long before Hastings' trial. To counteract the impression likely to be formed against the accused by this procedure, a Scotch minister named Logan prepared an able, but somewhat offensive, review of Burke's articles, which was published by Stockdale in the usual course of his business. In the course of his review, Mr. Logan did not hesitate to assert that the charges against Hastings had their origin in misrepresentation and falsehood; that the House of Commons, in the prosecution of some of the charges, resembled a "tribunal of inquisition, rather than a court of parliament"; and that the impeachment was "carried on from motives of personal animosity, not from regard to public justice." Upon motion of Charles James Fox, one of the managers of the impeachment, the House voted an address praying the king to direct the attorney general to file an information against Stockdale, as the publisher of a libel upon the House of Commons. The case was tried before Chief Justice Kenyon and a special jury at Westminster. Sir Archibald Macdonald, the attorney general, appeared for the prosecution. Erskine defended on the ground that the pamphlet, as a whole, referred, not to the House of Commons as a whole, nor to the public conduct of its members, but to the proceedings of particular persons; therefore, the averments which must be established to sustain the information were untrue. Chief Justice Kenyon delivered a brief charge to the jury, in which he stated that there were two points for their consideration,-whether the defendant published the work (which was admitted), and whether the sense affixed to the different passages by the innuendoes in the information were fairly affixed to them. The jury, after two hours' deliberation, returned a verdict of "Not guilty."1

ARGUMENT.

Gentlemen of the Jury: Mr. Stockdale, who is brought as a criminal before you for the publication of this book, has, by employing me as his advocate, reposed what must appear to many an extraordinary degree of confidence; since, although he well knows that I am personally connected in friendship with most of those whose conduct and opinions are principally arraigned by its author, he nevertheless commits to my hands his defense and justification. From a trust apparently so delicate and singular,

122 Howell, St. Tr. 237.