The Sun.
London, England, 1836-12-03 00:00:00

EXCHEQUER COURT.-(THIS DAY.)

(Before the LORD CHIEF BARON and a Special Jury.)
ASSAULT..--FRASER V. BERKELEY AND ANOTHER.
Mr. TALBOT opened the pleading. The action was for
a wanton and malicious assault. The defendants had pleaded
" Not guilty," upon which issue was joined.
Mr. ERLE said he rose to address the Jury on behalf of
the plaintiff, who was a bookseller and publisher, in Regent-
street, where he had carried on an extensive business and
was amongst an exter4ve acquaintance. The defendants
were of very high raM. They were descended from a
Noble family—both of them held commissions in the army
—both of them, he believed, also held the commission
of the peace, and moved in the first society. From the rank
of the parties, he had no doubt but many of those in the box
would have heard of the subject which they were now met
to consider ; but he was sure that men of their experience
would not allow their minds to be affected by anything but
the facts that would be that day laid before them. The
plaintiff complained of an injury—of an outrage which he
(Mr. E.) thought was never paralleled. It was hateful to
him to be obliged to state the particulars of the atrocious
conduct of the defendants, but his duty compelled him. So
with that preface he would proceed to lay his case open to
the Jury. On the 3d of August last the defendants, Mr.
Grantley and Mr. Craven Berkeley, together with a third
person, whom he could describe merely as a hired bully,
went out, Mr. G. Berkeley being armed with a whip of a
very peculiar and heavy description, to execute the work of
revenge which they had planned. Whether by accident or
design, they arrived at the shop of the plaintiff between 1 and 2
o'clock, a time when all the assistants were usually out, and
when, as in the present case, Mr. F. was in the shop alone. The
parties to this moment were entire strangers to each other ;
they arrived at the shop, and it was important to look at
the manner in which they disposed their forces. It would
be proved that Mr. Craven Berkeley, on entering the shop,
stationed himself just within the door-way, evidently for the
purpose of preventing any one from entering to the assist-
ance of the plaintiff, and to prevent him from escaping ;
the third person was stationed on the outside, evidently for
a purpose in which the result would show he was very
useful. Having in this manner taken possession of the
plaintiff's shop, Mr. Grantley Bentley advanced to Mr.
Fraser, and without any explanation, before he could
complete any answer to a question, without one
atom of notice, struck him a blow of such force as to
knock the plaintiff down. It was necessary for him to pre-
mise that the two defendants were' men of remarkable
stature and strength, while the plaintiff was a slenderly-made,
weakly man. Mr. G. Berkeley having got him on the
ground, and while he was endeavouring to rise, struck him
down again, laid hold of his collar with his left hand, and
with his right clenched fist beat him, about the head and
face, while on the ground, as hard as his strength would
allow. He then proceeded to take the heavy whip with
which he was furnished ; it was described to him as one
such as was, used by the rough-riders in the army while
breaking-in horses. He took it first by the small end, and
with the heavy, loaded end, struck the plaintiff, still on the
ground, about the shoulders, back, and head, where the blows
had done very considerable hurt—the whip was furnished at
the handle with a quantity of wire, which cut through
the flesh, and made many wounds upon the plaintiff's body
and head. He was then in a state of stupor, but Mr. G.
Berkeley took effectual means for awakening him from any
transient matter of that kind. He took the whip, and with
the lash struck the plaintiff over the face, the blows hav-
ing the effect of drawing blood from the temples down to
the chin ; even the hands, which very naturally were put
up to save the eyes, were laid open with the severe cut
from the lash. It was not in human nature to stand and
see such wanton cruelty practised on a human being.
Mr. Fraser's cries had brought several spectators, round
the shop—they were alarmed on seeing the whip used
in such a cruel manner. One made an attempt to get in,
but was knocked down by the bully who was stationed at
the door. He got up again, and pushing aside the arms of
that hired ruffian, who was then in the attitude of a boxer,
he succeeded in effecting his entrance into the shop. He ar-
rested the arm of Mr. G. Berkeley for a time, which gave
the plaintiff a moment of relief. The defendant, however, was
not satiated with the feast of blood he had already got, but
struggled violently to attack again the plaintiff. During
this struggle Mr. Fraser, obeying the natural impulse of a
man placed in such a situation, attempted to escape
from what appeared to him to be his destruction. He made
towards the door ; but there he was met by Mr. C. Berkeley,
who pushed him back within the reach of his brother.
He stood there and saw his brother take that opportunity
which he had furnished him with, of taking further venge-
ance. He (Mr. Erle) was told that Mr. Craven Berkeley
stood there calmly, and saw all those injuries inflicted which
were turning sick the hearts of the passengers. He stood
there calmly crying out " Damn him, give it him, give it
him." During the time that advice was given, Mr. G.
Berkeley had the opportunity of renewing theavack. Ile
had disengaged himself from the gentleman who ad wane
good his way into the shop, and who was to be called before
the Jury as a witness. He seized the plaintiff by the
collar, and immediately begun with the butt end of the whip,
and struck him several severe blows before he was able to
make his escape into the street. Mr. Grantley Berkeley
pursued him to the street, and struck him again with the
butt-end of the whip on the back of the head ;at the same
time in almost characteristic language saying, " Damn you,
I will beat your blasted head off." The plaintiff was now
saved by the police, and the parties were taken off to a
place where no further outrage could be committed. Mr.
Fraser was most severely injured. He was taken to a me-
dical adviser, and was confined for several days to his bed.
He attended to his nesessary duties for a few days, then
went into the country for a time to recover his health, but
to this day that was not established. It was for that most
gross and wanton outrage he came before a Jury of his
countrymen for reparation. When he saw his Learned
Friend there to conduct a defence to this action, he wanted
to know what could be pleaded as a justification for such
conduct ?—and on looking' round he was informed that
Mr. Grantley Berkeley had taken offence at some pub-
lication which had been sold by the plaintiff. Mr.
Fraser was not the author of any of the articles in the
work which bore his name. Most certainly he teas not the
author of any thing which affected either of the two defend-
ants. Taking the law to be that booksellers and publishers
were answerable for all they sold, would be stretching it
to too great a length. They sold the works over their
counter without knowing any thing at all about their con-
tents. Was it then to be considered as the smallest jus-
tification for Mr. G. Berkeley to go and punish so severely
the man who sold the book, over the contents of which
he had no control, and with the contents of which he was
not in the slightest degree acquainted ? He would press that
point particularly upon the attention of the jury. The plain-
tiff was not the author of the article which 'offended Mr. B.
and he defied his Learned Friend to prove that Mr. G.
Berkeley ever asked the name of the author. He saw his
Learned Friend smile, and he understood that smile. It
meant that he (iMr. E.) might safely defy them, because
his Learned Friend would say they had put it out of. his
power to prove anything, by making Mr. C. Berkeley a de-
fendant. But' it was impossible it could be otherwise, seeing
his connection with the whole transaction. He was an ac-
tive party in the assault, and cheered his brother on. But
for him, the assault could not have been so violent ; but
for him, the passengers would have interfered, and put an
end to it, long before it was done by the escape of the plaintiff.
This was a most material aggravation of the offence. Then
how could his Learned Friend use this as a topic by:which to
lead the Jury astray from the real facts of the case. They
would hear from his Lordship that this topic, in respect
of any publication of which Mr. G. B. had to complain,
that all this was perfectly extraneous to the present enquiry.
They were to take the facts which occurred at the time of
the assault ; and he trusted that his Learned Friend would
not be allowed to go into all the extraneous matter which
might be the subject of another action. Mr. G. B. might
resort to the law, and make the plaintiff pay in damages
for whatever he had done wrong against him. In fact, the
Gentlemen of the Jury had heard from the notice the of-
ficer of the Court bad been instructed to give to the 12
gentlemen wbo were summoned to try the cause of Berkeley
v. Fraser. They were desired not to leave the Court ;
so that it was certain Mr. G. Berkeley had taken
proceedings at law to recover damages for that
of which he complained, and which he now said justified the
assault. The defendants, therefore, ought not to go into
those matters in the present instance, for it would in fact
be saying to the Jury, " Oh, do not give the plaintiff da-
mages for this assault, because he offended me by a publica-
tion, and I should be allowed to beat him as I pleased."
The Jury were to decide the case upon the facts which
took place at the moment. They have no right to take
into their consideration anything which was a matter of
substantive enquiry. He was told also that it was now said
that the plaintiff ought to have proceeded against the de-
fendants by way of indictment. He (Mr. E.) could not
comprehend such doctrine. The plaintiff had in his person
suffered a gross outrage ; he had suffered great indignity
and wrong, and he came to that Court, before a Jury
of his countrymen, to ask for redress by damages
for that injury. Were thedefendandagtsamnowes
in this
to comeis
down and say, " Oh, do not give
action, because the plaintiff should have proceeded against
us as criminals." He might have been misinformed, but if
that was pressed upon their attention, he was sure that
would not prevent them from awarding ample compensation
for a gross wrong, which had been committed by the plain-
tiff. The question would be (and it would be the only one)
was the amount of damage they should award ; and he be-
lieved, in an action of this kind, they would be told by the
Learned Judge that they had a right to give not only damages
for the personal suffering, but they, in forming their esti-
mate of the damages, might take into consideration all the
Ifurrounding and attendant circumstances—all the annoy-