The Statesman.
London, England, 1821-06-04 00:00:00

My Lord—ln this case lam Counsel for the plain-
tiff, and shall endeavour as much as possible, to con-
dense those observations, which I may think it neces-
sary to lay before the Court, in reply to Mr. Wonlfe,
who went se minutely into the merits of the several
counts laid in the declaration, and so ably argued on
the several exceptions made by defendant's Counsel.
The first thing that I have to observe, my Lords, it,
that various as the forms may ht• in which these counts
are put, they are all grounded on the one consideration
—namely, a mutual promise to marry; and if there
was any one point more fully laid before the Jury
this another, It was; wb,tleer there was evidence,
not that there was Miaow, but whether there
was evidence adduced sufficient to satisfy the minds
of the Jury, as to the promise being mutual.—
Counsel fur the defendant contended that the
promise was given for the consideration of future, or
past illicit cohabitation, and that as such it was immo-
ral and illegal. But what i= the evidence of the pro-
mise itself, whit* I shall r..:111 to your Lordships.--a
(Pere Mr. Walshe read the promise). Upon that
paper, my Lords, there is nu evidence of any consider-
ation whatever, it brass date 20th October, It ; Yet
this promise is stated to have been made for the consi-
deration of future illicit cohabitation. T!iedefenilaot
never saw my unfortunate client 11.0;1 I 11. Ile was
introduced to her at lice own house by a Lady, and
was not always admitted when he cane. This prom'Ae
Was not given at the commencement of their acquaint-
ance on the contrary, there is express evidence iu
the terms of the instrument itself, that it was given
I three years and a half after their acquaintance hail
aotinuenceil. Look at the circumstances under ohich
that promise was given. Look to the time when th;.t
promise was given, when they were mutually parting
from each other, when the defendant was settieil out
for Ireland in consegnence of the transfer of the Tower
Hamlets Militia; and here, my Cords, give Inc leave
to observe, that it is never for a short time that a re-
giment is removed from one country to another. The
defendant was going to Ireland to retorts to the plain-
tiff, he knew not when, if ever ; but wh-: was the pro-
mise given ?--f Ilt ! Mr. Woclfe has said, that it was
for the consideration of future illicit cohabitation : loot
what assi;nable reason, what earthly motive could
they have, if this was the consideration, thus to make
a record of their own shame ?—And what was the co
soical, the very liish matinee in which that arrange-
ment Nags 114.1411*?—Why it was this, they entered into
a written engagemeot—" We promise to live and co-
habit together," and they followed it up ; how by-
the Gentleman setting out fur Ireland, there to re-
main rt haps for ever, whilst the Lady remained &i-
-mitate' in her ono house in Lon Ion: What was the
evidenco of Caroline Exton ? She stated, that the
promise was given in the year 1%15, when the defend-
ant was about setting out for Ireland. She stated, that
the plaintiff evinced mu h anxiety at the ilep afore ut
the defendant, amid that he gave her the written pro-
mise, as lie lied himself s.iid, "to put her out of the
power of fretting, amid it. show her that lie meant to
Instil al his engagetne.its to her." .I.re we to presume
that an insured woos is ft--;ings, under sick eiream.
stances, should go for nothing ? Is there any tribu-
nal competent to call that Jury to account, and to tell
them they did not take them into consideration ? Can
we for a moment suppose this woman Wien so low as
to imagine, that she wool I prefer an illicit cols 'bite-
thin with the defend int, to that honourable contact iim
whirls he had himself volittitarily pronsiae.l. lint All.
iVoitlfe has Axil', that she was fretting for his .1.-par•
lure ; if so, why did hr say that lie gave her the pro.
mite to put her out of the power of fretting, for he
was then departing ? Hit was a mere girlish feel-
ing of sorrow at her lover's parting from her, host
could he by giiing her that promise put her out
of the power of fretting, when he was, even
at that m .mrnt, going to another conotry
If the promise was given under the consideration
of future illicit cohabitation, then would the
defendant, even as her paramour, be adding insult to
injury. But tis the language of this promise ?
Does it not amount to this We may not meet for
year'. but when we do, you are my wife!" It has
been stated, tout the pisintillf and defendant hail Iwo,
living in illicit cohabitation for three years and a half
before this p.ornise of marriage was given, but there
is no evidence of this ; look to the facts of the case—
the defendant was absent for fourteen months : when
he dial return, be was bedridden three or five months,
and upon his recovery, he set out immediately f r
Ireland, so that the three years and a half illicit in-
tercourse am wits to three or five months when he was
bedridden. And how has Mr. Wuulfr felt this tlitfrulty,
and endeavoured to get out of it, when he talk' of a
cothishinage of letters ? I leave this to Mr. North,
who is to follow on the same side to explain. Perhaps
Mr. Wculle was arguing on the authority of Pope,
that—
'. Ileav'n Snit tanstht Letters for some wretch's that,
Home hanisli'd lover, or some captive maid ;
They live. they speak, they breathe what love inspires,
Warm from the soul, and faithful to its tires."
Lord .NIOKIII:BY observed, that the passion if Eloise
and Abelard was every where recognised ; the Port
had made Eloisa say, that a letter could
‘• The Virprin's wish, without her fears. impart,
Excuse the bluish. and pour out all the•heert.
Speed the soft teleran:ewe treat soul to soul,
And waft a sigh front lulus to the Pole."
gr. Wat.;ine resumed.—But assuming for a mo-
ment that there was evidence of both considerations,
insanely, past and futureillieit tohabitation, I- do not
idnsit that there was eviileure of such censielerations

meld net shut out from the charge of the Learned
J•dge, the evidence of the Intelsat promise to marry
at a future period. The Chief Justice, who charged
the Jury in that action, was applied to by Counsel
for the defendant, to charge the Jury in a particular
manner, but his Lordship then most justly observed,
that be did not think the case so circumstanced as
that be could take it from their determination.
Lord NORSURT-4 recollect that case perfectly
well, the learned gentleman engaged for the defend-
ant would have charged the Judge, and have let him
charge the Jury accordingly, so that every charge
they " let off" at the Judge, he was bound to " fire
off the same charge" at the Jury.
Mr. WALSIIK.—My Lords, if the Jury believed
that a mutual promise was the consideration, then is
the verdict not to be disturbed. Mr. Woulfe hes
said that there were no impediments to their marry-
ing, and has asked, why did they not marry forthwith.
Mr. Woulfe bas also favoured us with a most edifying
discourse on the unsanetifiell state of concubinage, is
which the plaintiff and defendant lived, and has most
evangelically enlarged upon the adulterous intercourse
of letters. Mr. Woulfe has said that there were no.
impediments to their then marrying, but, my Lords,it appeared in evidence that the lady bad & jointure
which would have been endangered by a matrimonial
connexion with the defendant: I scarcely seed allude.
my Lords, to the utter destitution of the defendant
'as to pecuniary circumstances; there was sufficient
evidence of the plaintiff's having supplied defendant
with money at different times ; in one letter there was
an enclosure of two pounds.
(Judge Johnson here observed, that " there was.
enough on record to prove that.")
The fourth eonnt, my Lords, is to marry on request,
or pay 5011tIf. hut this is not variant ; on re.iee.t,
must mean a future period. In the letter from plain-
tiff to defendant, dated " 19th !larch Int No. 32,
l'pper lieorge's.street, Portman-square, L Indian," we
have this remarkable parsage, tt do you mean to re-
main in Ireland i" Mc Lords, is this the evidence of
future illicit intercourse In that letter she tells him
that the Abisielity will shut him out of heaven if be
deceives her ; hut " no," she says, " you have not
so bad a heart." Yet in that ttttt rut, when all that
is woman io her is rinsed to a sense of feeling and of
s'iasse, when she calls on the Almighty God, and de•
mounces heavenly vengeance on him if he deceives
her, we are told that in that moment her wools to
him are, "come over and continue to be my guilty
paramour, anti I will be your harlot." That letter
WWI commented upon with all the powers of ridicule
is( whirls Mr. Heady was master. But, lily Lords.
ie that action the proof adduced on the part of the
olaiiitilf wis lar:t.er titan the statement of Counsel,
a•id in the case of Montstevets v. Brook it has been
decided, that where the statement exceeds the proof
there is a variance, but where the proof exceeds the
statement, there is not.
Mr. W stAnn continued to eoftwee Ws scent"
at considerable length, and with mush ability, and
concluded by mentioning the case of Lowe v. Piers,
which had been cited by Mr. Woulfe. In that C•I•1!
Mr. Walshe stated that there was no promise to marry'
at all, and contended that the verdict could not hate
been disturbed had the contract been the same in tlia't
ar ion as it was in the present rape.
Mr. motel", followed on the Ramp side, and made
a powcrfal and elooliwort appeal to their Lordships in
support of the verdict.
Mr. Noe-re thee rose, and spoke nearly as follows;
MY Lords—ln this case lam Counsel for the de-
fendant ; and shall en lavour to confine myself entire:e
to the point at issue. The points of exception in this
case a e few and easily intelliKible ; this case, my
Lords, has not been fully tried. If contracts of this
!.auroral kind were admitted, a man might contract
with a woman to marry her at a future period, if she
should Homier her husband. Thus Philip might con-
tract with Mary, to marry her at some subseques4
period, provided she consented to live in adultery
with him. But, iisy Lords, these contracts would he
nullified from the wickedness and immorality of the
considerations. The contract in the present case is
silent upon the consideration, and if it is open to the
plaintiff on the one hand, surely it is open to the de-
fendant on the other to give parole evidence, as to what
that consideration might have been. Counsel for the
plaintiff contended that the consideration was a mu-.
teal prinnise, but the evidence has been totally va-
riant. A gentleman meets, in the streets of London,
with an illiterate woman, represented as beautiful an .1
interesting, and after some time, we find them living
together—no isles of matrimony, be sets out fur Ire-
land, and gives her this promise to keep her from fret;
ting ; hut this is no evidence of a mutual promisee—.
Was not the state in which they had lived for nearly
four years previous to that trial, some evidence of OW
immoral consideration in the coutract. The words of
that contract are, " I will not cohabit with any other
woman ;" does not this imply that he will cohabit with
her 1 It amounts to this—l will cohabit with you,
and you alone, and when we are satiated with each
other, we will then marry. He (the defendant) then
went to Ireland. and a correspondence commenced :
he writes her word that he saw a cottage in whi .b
they could live happily together, but still there is net
a word of ina.riage. lie returns, and they continued
living as before. Their separation is preceded and
f kiloa ed by illicit connexion, and matrimony is pest-
paned to an indefinite period. It has been contended
that there was nothing o.: the face of that contract to
'thew that the consideration was of an immoral *am e;
but it should be re.collected, that persons entering
into illegal or immoral contracts, do net speak oat;
bat purposely .throw a veil over their words. I con-
tend, my Lords, that there is not more evidence to rt
the consideration in this contract was for a mnt,:if
',make, than that it was fur the future illicit intec-
course of the parties.
31r. :Noah continued to argue at oeufh (noes -
length. The Court fitaaily *m* withoa‘givispitnlp.

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