The Statesman.
London, England, 1821-07-05 00:00:00

TO

sTAr

MOST EXTRAORDINARY CASE.
COURT OF COMMON PLEAS. Maus, Juin S 9.

• cevartgatv r. BROW NE.
The further argument in this case having been resumed
this day at the sittings of the thmrt, Mr. Sergeant Joy
addressed their Lordships to th.• folinwieg effect :
MY Loans—ln this case I shall take the liberty of ad-1
dressing your LornThips in heitalf of the defendant, and
in support of the demurrer, iehich he has set up to this
action. This is an action of deceit, env Lords, brought
for an injury alleged to have been sustained by the plain-
tiff through the false affirmation of the defendant. The
defendant Las demurred, on the ground that on the face
of the declaration an action does not lie. The declara-
tion states. that the defendant induced the plaintiff to
marry a certain woa.an vt :sorra, he ii presented as a
moral. and well-conducted maiden, and a pure and
undefiled virgin ; the plaintiff states, that trusting
to these representations, he did marry that young
woman, and that in truth and in fact, she was not a mo-
ral and well conducted maiden, that she was not a pure
and undefiled virgir, but on the contrary, she had been
debauched and defiled. and that a child Lad been got-
ten on her body by the clefend.iiit. Ile further states,
that she was delivered of a child, six months and
three days after her mart;age u ith the plaintiff, and
that be sustained grievous Oamages and injury, and
was put to great expetilie in providing medical attendance
for her during her illness, and in maintaining the child
begotten by the defendant. I shall not occupy the time
of the Court by going through all the counts laid in the
declaration, but shall confine myself to the observations
which have been made by Counsel in support of the at-'
tion. It has been insisted, that this action is maintain-
able on two allegations—the deceit practised by the de-
fendant, and the injury sustained by the plaintiff; and
further, it has been laid dr..enas a maxim, that for every
injury or damage the law provides a remedy. lily
Loads, where the injury or damage is of such a nature
as the law recognises, I do not quarrel with that maxim ;
where an injury or damage has been done to the person
or property of an individual, I fully coincide in that
opinion; but the law provides no remedy for an in-
jury done to a man's feelings ; there must be some-
thing more alleged in the declaration, to sustain an ac-
tion. If a man slaniers another, by an imputation of
vicious inclinations or propensities, which may be more
hurtful to his feelings, than Lis having been charged
with some particular act, the law gives him no redress.
I will go further, I will put the case of a father, whose
daughter has been seduced. Is there any injury to the
feeling greater than the debauching the daughter of a
fond and an aduting parent i vet there the law requires
some temporal damage to be aliewn, and an actual loss or
damage to Live been sustained.
Mr. Justice JouNsos: here observed, that in case of
the seduction of a daughter, the father must bring his
action as the master, and :tut the father of the girl, and
" for the loss of her .iervices "

Mr. Serjeant Joy I C:stlitt,d. The case of Deane v.
Peille, in sth East's Report,, hears some analogy to the
present. Iu that case the git I was debauched, aid got
with child whilst on a visit to har sister-in-law, but the
action could not be bustained, as she was not at the time
the seduction took place iu the actual service of her
father.-1 gill go farther, and come to the relations be-
tween man and vile; even there no action lies for call-
ing a woman a prostitute. Although the husband may
be pointed at uhenever he goes, although his appear.
ance may raise a titter in every drawing-room where he
enters, whilst the wound is sinking deeper and deeper
into his heart; nay, although be believes, though falsely
that his wife is guilty,whilst his every nerve is cauterised,
and his veins seem to flow not with blood, but vitriol,
yet the law will give him uo redress in proving the
adultery, he must not only chew the loss he has sustain-
ed in being deprived of the society of his wife, but he
must also prove that he has thereby sustained a real,
temporal, and substantial loss. An action for adul-
tery must be laid as fur trespass and assault. Sir James
Mansfield bas said, that the word " assault" does
not there mean violence. and that if it did, it would
amount to rape. There is certainly more of equity
than common law in this opinion. With respect to pro-
perty, if a wife delivers the goods of her husband to
another, theliusband cannot recover, because the goods
are supposed to be equally the property of the wife, but
if another enters by the connivance of the wife, that
amounts to a trespass, and the husband can bring an
action. If Mr. Penuefather says, that the word " as-
sault" is a mere fiction, as used in cases of seductton,
then why does the law borrow it ? Because an action
grounded on a were injury to the feelings could not Le
suetained. Let me now, my Lords, distinguish between
an injury done to the feelings, and a real, a substantial,
and what may be termed a legal injury. The first count
states, that the said Ilannah Darling was not a moral and
well conducted maiden, that she was not a pure and un-
defiled virgin, bat that she had been debauched and de-
filed, and that a child had been Rotten upon her body
by the defendant himself. It is no small objection to
this action, that it cannot even be argued without offend-
ing against decency. 11 that be the case at present,
what will it be when the evidence shall be laid before
a Jury ? Your Lordships have said that you have
been met at the turning of every street, by per-
sons enquiring anxiously as to the progress
of this argument. It has become the general
theme of conversation by all ranks and classes
of persons, even among ladies of the highest
respectability, consequently the nature of the evi-
dence that must be gone into, and even the argu-
ments that may be used, spew the imperative necessity
there is of checking the further progress of this action.
The declaration states, the defendant represented her as
a moral and well-conducted maiden—this expression is
too vague, my Lords, for me to dwell on ; but it goes on
to say, that be represented her as pure and undefiled.—
None of the counts in the declaration impute the slight-
est impropriety of conduct to her since her marriage—
she might be as virtuous a woman as ever lived notwith-
standing the declaration. If this action should be per-
mitted to come to trial, the whole case would resolve into
this, which would be the plain question the Jury would
have to decide, " Was she a virgin at the time of the
marriage? Pnt it in a thousand ways, and still that

would be the mere simple question the Jury would have I
to decide. It would afterwards become a question,
" What be lest by the loss of her virginity ?" But, my
Lords, she might be as virtuous a woman as ever breathed,
and yet not a virgin at the time of her marriage.—
There are various nays in which she might have lost her
virginity; she might have been ravished; she might
have been deceived by a false marriage ; and though in
either cases her body would he defiled, yet she might
still have been pure in mind. Suppose that she had even
been seduced, and had afterwards become repentant, and
was moral and well conducted in her conduct, in that
case what would he his loss ? She might be a more vir-
tuous woman 'lnn if she had never sinned—pure in
mind, and correct in conduct. The declaration, states
that she was not a virgin at the time of the allegation ;
hut it does not impute to her any impropriety of conduct,
or any act of immorality since her marriage. She
might have been the dearest object to his heart, if not
For 'her alleged want of virginity. It is evident that her
not being a virgin at the time of her marriage, is the
sole ground of action.
Judge FLETCHER here observed, that if such a princi-
ple was recognised by die Judges, as a legitimate ground
of action, he would not say how many it would involve
is litigation.—(Laughter.)—Many Gentlemen who had
spoken to him on the subject, laughed at the idea of Con-
sidering this action, or supposing for a moment, that it
could be sustained.

Mr. Serj.eant Joir.—My Lords it amounts to this, a man
may come into Court, and say, to your Lordships and the
Jury, "My Lords and Gentlemen, I have the hest
wife in the world ; she is a virtuous, mural, well con-
ducted and religious woman."--" Well, Sir, what do
you want ?"—" My Lords, I want what somebody else
got a long time ago."—(Oreat laughter.)—But, my Lords,
supposing the Gentleman Lad got it, where would it be
now ?—(Continned laughter.)

In the case of the seduction of a daughter, the father,
in bringing. his action, although he states her to have
been a virgin, must allege some actual temporal loss to
have been sustained by him in consequence of his having
been deprived of her services.

Judge FLETCHER observed, that the great number of
circulating libraries aided the cause of seduction very
much, and that the young ladies of the present day read
too many novels.
Mr. Serjeant jor.—The plaintiff, in the present case,
my Lords, comes into Court in the character of a hus-
band, not tomplaining of having been deprived of any
thing which he was in possession of—not complaining
of the impropriety or immorality of his wife's conduct
—not complaining that she was extravagant, that she
was a drunkard, or a termagant—uot complaining that
she has sustained any temporal damage, except what
arises from the loss of his wife's virginity; and this,
my Lords is the so:e and only ground of action. The
declaration further states, that she was debauched and
defiled at the time of the allegation, and that she was
then pregnant of a child begotten on her body by the
&fends:id, and that she was delivered of that child in
six months and three data after her marriage with the
plaintiff; and that lie the plaintiff was put to great ex-
pense in providing medical aid and attendance for her
in her illness, and during her delivery, and in maintain-
ing the child begotten by the said defendamt. This. my
Lords, puts the plaintiff to the necessity of proving that
the child, of which she was delivered, was begotten by
the defendant and no other person.

Judge Jonssos said he did not see bow the Court
could go into that inquiry.
Mr. Sergeant Jov —My Lords, in this action the issue
you would hare to try would be, whether the child which
:Le bore for six months and three days after her mar-
riage, was begotteu by the defendant or nut, and in this
case the wife, wbosc testimony alone could decide, would
not be permitted to give evidence, as she would not,
as the wife of the plaintiff, be a competent witness. In
Vince* Abridgment, vol. -1, page 216, title Bastard, it is
stated, that if a woman is grossly exceiate, and that the
child is afterwards born in marriage, that child is not
and the re is a marginal note from Brook,
which goes in support of the same rule.
Judge bloom/ here remarked, that if a Judge was in-
clined to be jocular, he might say that the Court would
not Brook such evidence as would be necessarily ad-
duced.—(6reat laughter. in which the entire Court, in-
cluding Lord Norbury, heartily joined.)
Mr. Serjeant Joy resumed—There is another remark-
able case mentioned there, niy Lords—it was where a
woman Was alleged to be grossly eaciate by 11., and she
herself said that it was by W.—See, my Lords, the diffi-
culties that would arise by going into such an inquiry.
In I I East, 132, there is a settlement case mentioned,
where the mother of the child, after the death of her
husband, gave evidence of leis non-access. 'f he husband
was theu dead, and although it was urged that the evi-
dence could not cause disunion between man and wife,
yet the Court would not permit the woman to bastar-
dise her own child. Coke says, that by cu 1111 l ion law,
if the husband is within the four seas, to wit, in the
King's domiiiions, he is the father ; unless the utter im-
possibility of procre.,tion shall be proved on the part of
the husband. That term has since been altered to non-
access. But, my Lords, is it impossible that the child,
in the present case, was begotten by the plaintiff?
Judge Joussox said, that it appeared that the child
11.. d arrived at full maturity at the time of its birth.
Mr. Serjeant Jnv-1 do not well understand, my
Lord, what is meant by the full maturity of a child.
Judge Joussos said, that the Court should employ
an accorehear to decide un that part of the case.

Judge FLETCHER remarked, that it frequently hap-
pens that a child is born within six or seven months
but that it seldom occurs except with the first chid

Judge JOHNSON said, that a child had been born in
the Royal Family, at the end of seven months ; that this
frequently happens, but he supposed that it was always
with the first child.
Mr. Sergeant Joy resumed.
In the case of the King v. Luff, 8 East, 193, it was
laid down as the criterion of law, that in all caws of
anti-nuptial generation, if the child was born in matri-
ffiony the Court could not look to the time when gesta-
tion began ; it would cut up society by the roots, if, in
cases of anti-nuptial generation, the law would permit
evidence to be adduced, and an inquiry gone to, as to
when the period of gestation began. If a child is born
in matrimony, the physical impossibility of the husband's
having begotten it, must be proved before the law will
bastardize that child. Mr. Justice le Blanc says, that
it is an established rule of law, that a child born in ma-
trimony is legitimate, and that the rule is not to be bro-
ken, except in the case of the ismbecility of the husband.
In this case the whole fact stated in the declaration
amounts to this, that a child was born in six months and
three days after marriage. The allegatiuti states, that
Mat child was not begotten by the plaintiff but by the
def'eadaat hituse(f; so that the physical impossibility on
the part of the plaintiff, would not be sufficient, but he
must prove also, that the child was begotten by the de-
fendant, and by no other person. If a child is born in
matrimony, no matter how begotten, the law says the
husband is the father.—My Lords, it would be against
the policy of law to permit a parent to bastardize his
own child. The indecency of the evidence that must
be adduced, if this should come to trial, is a strong
ground of objection. I do not mean to say that inde-
cency is a bar to every case ; in actions for adultery,
where a naked injury has bees inflicted, such evidence
mast be permitted; bat here a man enters into a stipule.

Lion with whether as to the virginity of his wife. tti .. it
could be thought of the refindd feeliugsof a man why) • y
come into Court, and tell the Judges and the Jury, ;t:.1!
they should decide for him uhet her his wife W 3.1 a sr—,
or not? what recompense would he deserve? A man w
would seek to prove his wife a prostitute. should be dis-
couraged and discountenanced in every Court.—Wlia:
must he the feelings of any of her relatives, of whom
he had lulled questions as to her virginity. It wocli
not surprise me, my Lords, if a man u lie would dare to
ask a &flier questions touching his daughter's virginity,
should have reason to complain of having sustained tent-
petal damage. My Lords, the law will not permit any
man to go into evidence which may tend to wound the
feelings of a third person.
Judge FLETCHER said, that she must have some eon•
nectioni, whose feelings ought to be considered.

Mr. Sergeant Jov—My Lord, her awn feelings oug:.
Judge Nlootta thought her leelings ought not to ire
taken into consideration.
Mr. Serjeant Jot —My Lord, you speak on the sop
position of her guilt ; 'but, my Lord. although
woman has been dragged before the public, she will n
be permitted to give evidence as to her innorencv
the eye of the law she is innocent at present, awl 1..1
own testimony might prove her so in the tics of at
world. My Lords, the law will not permit a man to
defame his wife and bastardise his child. If sat.h a
principle of law was recognised, what advantage% might
not be taken of it by an abandoned man ? On the wl:ft.e
of this case, my Lords, there are so many radical oirje. •
tions to its being permitted to come to trial, and to the
disclosure of such evidence as it must necessarily in•
volve, that I trust your Lordships will see the necessity
and propriety of allowing the dettiurrer.—Judgment
deferred. .

DEATH OF BONAPARTE.

(IFURTHEt TARTICIMARS.)

The dispatches announcing the death of Bonaparte
were brought to Englan4 in the Rosati° sloop of war,
which arrived at Portsmouth early yesterday morning
Soon after the arrival of Captain Andrews yesteirfr
morning at the Adntira!tr, with these divatehes Vis-
count Melville forwarded the substance of the dispate:,
in a box by a Messenger. Mr. Croker, the Secretary to
the Admiralty, followed ::ono after to the King's Palace.
Captain Cocket arr:eed at the Colonial ()theirs with
dispatches, containing the account of the same event, at
a quarter past II o'clock. The Earl Bathurst not bein;
at the Office, and the Captain having a private letter
from Sir Hudson Lowe, to be delivered only into Isis
Lordship's hands, the Camaiu proceeded with all pos•:-
ble speed to the Noble Earl's 'route, in Stanhope-stret •,
where he delivered the letter, as well as the regular di
patch. After perusiug them, the Earl Bathurst sent an
account of the important event to the King, aad
cular box to all the Cabinet Mini,ters.

The substance of the dispatches was immediately coo -
tuunicated to all the Ministers, and to the Ambassador•,
by whom couriers are understood to base been despatch-
ed to their different Courts. At noon a Special Genet al
Court of Proprietors of the Cast India Cotnpany hap-
pening to be held, the Chairman rose in the midst of a
discussion, and said he had received an official nolo
from Sir Iltid4uti Lowe, which he read as follows:
" St. Helena, May I, HMI.

" Sin-1 beg leave to infortn you, that General Bona.
parte expired at ten minutes before six o'clock on Um
evening of the sth May, after an illness which had con-
fined him► to Isis bed since the 17th of March. Captain
Crochet, the orderly officer who attended upon General
Bonaparte, will have the honour of delivering this dis-
patch.
"To the Chairman of the lion. Court of Directors."
In 'the evening the following articles appeared, which,
from the form in which they were published, were un-
derstood to have the stamp of official authority
" ST. HELENA, MAT 7.—Bonaparte died on Satur•
Jay the sth, at 6 p. ut.. after an illness of six weeks; the
last fortnight only considered dangerous. The body
has been opened, and the disease ascertained to be
a cancer ou the stomach, with a great extent of ul-
ceration.

"He has been lying in state since yesterday afternoon,
the Admiral, Governor, and Leads of departments hav-
ing,► first seen the body."
During the lirst 4 weeks of his illness,it did not assume
any very dangerous appearance, though he appeared
himself to be conscious that it would terminate fatally.
During the last fortnight it was evident to all the meth•
cal attendants that he could not recover. It is said that
he ga►e directions about his affairs and papers till five or
six hours before he died, having retained his senses till
that period. He said he ►eished to be opened, in order
that his son might be informed of the nature of his
dis-
ease. The body was opened by Isis owls surgeon. We
believe that he lift a will, uhich, with his other papers
have been, ut will of course, be transmitted to this
count ry.

ANOTIIER ACCOUNT.
[rause OTIIZR &outsets or intoanavtom.)
The despatches brought by Captain Croker, announc-
ing the death of Bonaparte, are dated St. Helena, May
17. That event took place on the sth of May, at tea
minutes before six in the afternoon. The illness of the
ex• Emperor lasted, in the whole, six weeks; and its ef-
fects on his frame, as described by an oMeer who bad
frequent opportunities of seeing him dicing that period,
were so powerful as nearly to reduce him to a skeleton.
and to obliterate all traces of his former features. Dur-
ing the latter part of his illness he frequently conversed
with his medical attendants on its nature, of which he
seemed to be perfectly aware. He declared that it wa%
hereditary, and that his father had died of the now
disease. On examination after death, the stomach Wdli
found in a state of extreme ulceration, so that it ap-
peared in some places perforated in large openings. His
medical attendants gave it as their decided opinion, in
which the physician who was called in coincided, that
the disease was incurable, and that the climate had hail
no effect in producing it. One trait of character dis-
played itself in his last moments, which marks the
ruling passion strong in death." As he found
end approach, he was habited, at hi. own request,
in his uniform of Field Marshal, with the boots and
spurs, and placed on a camp bed, on which be a'a•
accustomed to sleep when in health, and preferred
to every other. I n this d ress be is said to have expired.
It has been asserted that the Heron, which brought
the despatches, also brought the body of Bonaparte to
England, but this we understand is not the ease. Ilis