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in consequence of what the jury had pable, that Mrs. Eiten should fupheard fated from the declaration. port him, although so well able to

The circumstances which ought support herself, determined on to govern the conduct of a jury in looking out for means whereby to eitimating damages in cases of this better his fortune. Had Mr. Eften fort, were different in almost every been left to his own choice, nocafe from those which went before thing would have contributed to it; but the principle upon which his happiness so much as that of these damages were to be estimated living with his family, but it became was always the same. The jury necessary for him to try to improve would apply the circumstances of his fortune, and, therefore a temthis case to that principle, and then porary feparation between him and they would examine what compen. Mrs. Eften took place. Mrs. Eften fation was in their opinion due to was accordingly left with the child Mr. Eften; whatever they thought at Dublin, and Mr. Eften returned was due they would give to him, to England, pursued the line of and with that he would be content. life which had been already inen

Mr. Eftea, in the year 1783, was tioned, and continued from that time the purser of a fhip in the navy, to the present without the least imand not opulent. He became ac- putation upon his character. In the quainted with Mrs. Eften about year 1789, Mr. Eften went as purthis time, and in the year 1784 ser in his majesty's fhip the Europa, they were married ; they lived to from England to Jamaica, and gether in England, where they had from thence to St. Domingo, and a daughter, the issue of the mar- entitled himself by his conduct to riage; in the year 1787, they went the regard of those under whom from hence to Dublin; during he acted, and was advanced to a all this tine there was no imputa- fituation of trust and pront, by tion upon either Mr. Eften, or which his fortune was much imMrs. Eiten's honour; he continued proved, which improvement le to support himself and his family might have enjoyed with his wife, from his fituation, which, as had but for the conduct of the duke been observed already, was that of of Hamilton. But for the act of a purser, and not a very opulent that noble duke, Mr. Eften might one. Mr. Eften was at this time in- have enjoyed the society and comcapable of making for his wife and fort of his wife, and with that daughter such further provision as refpect which he wifhed. Mrs. he could have wished; and Mrs. Eften continued on the stage unEften imagining the had, and as it til the year 1793. See quitted the appeared he had, talents for the theatre in Dublin and came to Edinftage, she tried such talents at Dub. burgh, and from the time the went lin, and she was successful, and on the stage to the moment be was consequently was foon enabled to was about to speak of, the breath support herself handsomely; but of fcandal had been never directed Mr. Eften not chufing to be a bur. towards her name; no imputatioa then

upon his wife, and his em- had been caft upon her, that the barrassment having increased on had been faithless to ber hulband's hin, and finding that he was inca- bed; and Mr. Eften hoped he pable of supporting his wife, and would have been able, as he would thinking it improper, if fe was ca- bave been but for the conduct of


the defendant, to return to the do. he had been received as a guest. mestic comfort which it was his It was not a case in which there object to prepare when he separated was that species of malignity. But for a time from his wife; as he fair. the defendant was a man of high ly left, so he hoped upon his re- rank: be trusted the jury would turn to find the honour of his wife. think on the effect which the conIn the year 1793, as he had ttated duct of great men was sure to have already, Mrs. Eften appeared on on the morals of the lower classes the stage in Edinburgh; there the of the community. It had been duke of Hamilton met her ; what jaftly said by the noble and learned means he used to corrupt her, he judge, that it was in vain for the knew not, but the facts he had to higher ranks of society to expect ftate of her were these: that the their inferiors to be correct in their duke of Hamilton went from his morals by mere precept ; the great palace in Scotland to the theatre in fhould set to them an example of Edinburgh, and openly, publicly, good morals. It was their duty to and in the face of day took Mrs. do fo; every intelligent man exEften into his carriage, and carried pected it of them, from the advan. her with him in triumph to his pa- tage of their education, and from lace, where they afterwards lived the comforts which their fortunes together publicly and avowedly as so easily procured for them, lo man and wife, and from that time as they had less distress they had to this the duke of Hamilton had less temptation. He desired the cchabited with Mrs. Eften as his jury to look at the situation and wife. The means by which he conduct of this defendant, and practised on her virtue he could also at the situation and conduct not state, as he knew nothing of of this plaintiff, at the time when them. He was ftating only the this injury happened. - The plainfacts, for he knew of nothing else tiff's wife, it was true, was not in the matter. These being the torn from his bosom ; but while be circumstances of the case, the only was commendably endeavouring to question for the jury would be, the inprove his fortune, and had hopes damages they would give to Mr. or returning to his wife to enjoy it, Eften for what had happened. In this injury was done, which destroy. speaking upon that subject, he ed all his hopes. That he had great hould not deserve credit with the hopes of enjoying happiness with jury if he Itated this as one of those his wife, was evident, which he aggravated cases which sometimes wrote to a friend when he was inappeared before a jury. This was formed of what had happened. not a case in which the defendant, He faid in that letter that he could the duke of Hamilton, had become scarcely give any answer to his the acquaintance with the plaintiff, friend upon the subject. He said been received into his house as a that the temporary separation from friend, and then, under the mask his wife was absolutely for his for. of friendfip, had converted the

He thought he fould have opportunity which the plaintiff's been happy to return to a wife hospitality had given him to the whom he adored. That he had use of séducing his friend's wife, always thought her immaculate. and afterwards had carried her away God only knew what means had from that friend's house in which been used to accomplifı her ruiu,&c.

It might be faid that Mrs. Efter all morality, goes from his palace twas left in a fituation where the to the theatre, and in the public was exposed to attack: that her face of day committed this very bulband left her on the stage, where immoral act; carried the plaintiff's the was much exposed. He did wife to his owni palace, and from not know whether it was to be in theace to London, and lived with fifted upon, that a woman being her afterwards in open and avowed left on the stage, without her hul- adultery. He infiited very much band, was a realon for the damages on the necessity of the jury correctbeing small, for that much levity ing this species of licentiousness in was natural to that condition ; he high life, by way of a wholesome knew the good sense of his learned lesson to all orders of the communi. Friend would not induce him, of ty, and to thew that the law does his own mind, to urge such a topic not allow a mari, on account of his for defence to such an action as rank or fortune, to set public mothis. The theatre, like other fitua- rality at defiance. tions in human life, was much di The marriage being proved, versified as to the morals of those Thomas Fairal, servant to his who follow it as a profeflion. He grace the duke of Hamilton, was knew many of that profeslion who examined. He said he had lived were excellent examples for the with his grace for upwards of twenpractice of virtue and conjugal ty years. He remembered going fidelity, and therefore he was con with him from his palace in Scotfident the jury would not think land, to the theatre in Edinburgh, that the damages should be the less, in August, 1793. He believed it because the plaintiff's wife was on was in order to fetch away Mrs. the stage at the time this injury hap- Eten.--The noble duke brought pened. Had it not been for the her with him to his palace. They conduct of the defendant, this have lived together ever since as lady's character might have been man and wife. They are now in still immaculate. He had nothing England, and have constantly and extraordinary to urge on the part of publicly lived together, and a child the plaintiff for large damages in was born some time ago of Mrs. this case ; what he had chiefly to Etten. urge upon that topic, was for the Lord Kenyon asked, What was fake of example to the public. It the age of the duke of Hamilton. was not very important to the plain- He was ansvåered that his grace was tiff what the damages were, for about 40. they would never restore to him His lordship asked, Whether the that which he had lost. He was duke .was divorced from his du. now in a Ituation that placed him chefs ? He was answered that it was above want, and that, in the pre- understood that his grace was sepasent condition, was almost all he rated only, and not divorced from cared for. But although the ques. his duchess, but that he had been tion was thus indifferent to bim separated a long time before the upon the score of damages, it was cause of this action arose. by no means so with regard to tlie Mr. Erskine said he was of public, of whose good morals ju- counsel for his grace the duke of ties were the guardians. Here was Hamilton, who was called into the a noble duke, who, in defiance of court according to the process of 1797




the English law, to answer to Mr. the law of England. He was not Eften, the plaintiff in this cause. instructed by the duke of Hamil There was no man less disposed ton to attack the character of Mr. than himself to differ from his Esten. He was ready and willing learned friend, who was of coun- to admit that he became the bule Sel for the plaintiff, in a great many band of the lady becaufe he loved observations he had made to the her. It was extremely natural he jury this day, nor less disposed to should, for the was certainly a. differ from the learned and noble very handfome woman, and highjudge who sat upon the bench in ly accomplished; he had, as well the general sentiments he had ut. as many others, had occafion to ad. tered on the trial of causes of this mire her talents, as the had given description. But the more weighty public proof of them upon the the general observations were, the stage. He did not accuse Mr. more important it was that they Esten of any thing difhonourable. should not be misunderstood or He did not mead to say, that at the misrepresented; that in the admi- time he left his wife it was not nenistration of justice, an example cessary he should do fo, in order should be held up to the public in that he might go to other parts of punishing any individual for an the world to increase his fortune. offence so public morals, growing He admitted to the full extent the out of an injury to another indivi- observations of Mr. Gibbs upon dual, was a doctrine to which he the virtue as well as vice of perreadily subscribed. But however fons upon the stage. He had the deeply that was impressed upon his pleasure to be acquainted with the mind, yet when any individual greatest and the brightest character came into that court to complain that ever appeared upon it; lie was of a civil injury, he must have his a pattern to others for her conjugal case determined by the rules of the fidelity and her maternal affection, English law: and upon that broad as well as for her transcendent ta? principle he denied that the duke lents; fhe was an oruament to her of Hamilton could be called upon sex as well as to her profesion. to answer for this charge as the pre. There were many others whose vir. sent case stood; and however the tue was unquestionable ; nor did he noble and able judge might lament mean to infinuate that damages the conduct of the duke of Hamil. ought to be small, because the person ton in this case, and he did stand alleged to be reduced had appeared in that court to defend that con- upon the stage; no such illiberalidea duct, yet he was persuaded his lord- had ever entered into his mind, and hip would find himself called upon he hoped it never would. But the by the rules of law, which were question here was, what was the ti. more important in a court of jus- tuation of the party complaining? tice than the conduct of any indi. Upon that he maintained that the vidual, however exalted he might plaintiff had no right of action in be, to say that the plaintiff could this case. He might, however, if not maintain this action. He ad. that was his object, go with his mitted that the noble duke had nonsuit before the house of lords, been guilty of a breach of moral and he did not apprehend that that duty, but fill the case must be dif. would be a reason for parliament posed of according to the rules of refusing to grant him a divorce.


He held a paper in his hand, which fhip to make a case of this, that it
would put an end at once to this might be argued before the court.
caufe, notwithstanding that the Lord Kenyon said, he was of
duke of Hamilton had done that opinion that this deed put an end
with ostentation in public which to this action, for the ground of
ought not to have been done any the action was, that the plaintiff
where; and so he was sure his lord. had lost the comfort of the society
hip would tell the jury when that of his wife. If he gave up his
paper came to be read. Mr. Eften right of insisting upon that fociety,
separated from his wife, no matter as by this deed he clearly had, the
whether for a good or a bad reason. very ground of the action was gone.
Tiat feparation put an end to his He could not, however, forbear
right to maintain this action. For lamenting, that a branch of one of
the law of England in this case was the oldest families in this country,
governed by the very fame rules one of the first in rank in North
that governed the Greenland fih- Britain, should be guilty of such
ery. "If you strike a whale, it is indecorum as the noble 'duke had
yours while you keep hold of the been in this case, He felt it as an
line; keep the line fast and the fish instance of fameful depravity,
is yours;- so that if you strike a and he should not be forry if there
whale in Greenland, and your line were means of punishing him for
is long enougil, the fish shall be his guilt, by the law; but he could
yours, though it should pass to not do it; his judgment must be
Nova Zembla, provided you keep consistent with the rules of law.
hold of the line : but if you


Mr. Gibbs asked his lord flip to the line, the filh becomes the

pro grant a

case upon the subject. perty of the next who strikes it

Lord Kenyon said, that when a So in this case, the wife would be gentleman of known and acknow. the property of the plaintiff, had he ledged talents and abilities at the kept fait the line : but having let bar asked for a case, upon a matter go the line, she became the proper. which he really thought to be arty of the next who struck her. guable, he mould be sorry to reSuch were the plaintiff's and de- fuse it, but he could not do that fendant's cases; for the law of out of mere compliment to the Greenland with respect to whales, anxiety of the parties. This was was the law of England with re- a point which did not involve any spect to women. The plaintiff in doubt, and therefore, unless Mr. this case had let the line nip out of Gibbs pressed it with confidence, his hand when he signed an agree- he thought it his duty not to grant ment for a separation between him a cafe, for it would be idle to argue and his wife.-(Here Mr. Erskine a thing that was already clear. Had read the deed of separation, by there been only a temporary sepawhich the plaintiff covenanted that ration, he should have thought he lould have no future authority that no bar to the action ; but here over his wife during life, and agreed the feparation was abfolute, for the to separate for ever.]

plaintiff could never compel his Lord Ke yon asked Mr. Gibbs wife to return to him, and therewhat he had to fiy to this deed : fore this act, however immoral,

Mr. Gibbs said, he was aware of and immoral it certainly was, and tbis deed, but he wished his lord. highly fo from such an elevated



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