It might be said that Mrs. Esten was left in a situation where she was exposed to attack; that her busband left her on the stage, where she was much exposed. He did not know whether it was to be insisted upon, that a woman being left on the stage, without her husband, was a reason for the damages being small, for that much levity was natural to that condition; he knew the good sense of his learned friend would not induce him, of his own mind, to urge such a topic for defence to such an action as this. The theatre, like other situations in human life, was much diversified as to the morals of those who follow it as a profession. He knew many of that profession who were excellent examples for the practice of virtue and conjugal fidelity, and therefore he was confident the jury would not think that the damages should be the less, because the plaintiff's wife was on the stage at the time this injury happened. Had it not been for the conduct of the defendant, this lady's character might have been still immaculate. He had nothing extraordinary to urge on the part of the plaintiff for large damages in this case; what he had chiefly to urge upon that topic, was for the sake of example to the public. It was not very important to the plaintiff what the damages were, for they would never restore to him that which he had lost.-He was now in a situation that placed him above want, and that, in the present condition, was almost all he cared for. But although the question was thus indifferent to him upon the score of damages, it was by no means so with regard to the public, of whose good morals juries were the guardians. Here was a noble duke, who, in defiance of 1797.

all morality, goes from his palace to the theatre, and in the public face of day committed this very immoral act; carried the plaintiff's wife to his own palace, and from thence to London, and lived with her afterwards in open and avowed adultery.-He insisted very much on the necessity of the jury correct. ing this species of licentiousness in high life, by way of a wholesome lesson to all orders of the com→ munity, and to shew that the law does not allow a man, on account of his rank or fortune, to set public morality at defiance.

The marriage being proved,

it

Thomas Fairal, servant to his grace the duke of Hamilton, was examined. He said he had lived with his grace for upwards of twenty years. He remembered going with him from his palace in Scotland, to the theatre in Edinburgh, in August, 1793. He believed was in order to fetch away Mrs. Esten:-The noble duke brought her with him to his palace. They have lived together ever since as man and wife. They are now in England, and have constantly and publicly lived together, and a child was born some time ago of Mrs. Esten.

Lord Kenyon asked, What was the age of the duke of Hamilton? He was answered that his grace was about 40.

His lordship asked, Whether the duke was divorced from his duchess? He was answered that it was understood that his grace was separated only, and not divorced from his duchess, but that he had been separated a long time before the causé of this action arose.

Mr. Erskine said he was of counsel for his grace the duke of Hamilton, who was called into the court according to the process of

the English law, to answer to Mr. Esten, the plaintiff in this cause. There was no man less disposed than himself to differ from his learned friend, who was of counsel for the plaintiff, in a great many observations he had made to the jury this day, nor less disposed to differ from the learned and noble judge who sat upon the bench, in the general sentiments he had uttered on the trial of causes of this description. But the more weighty the general observations were, the more important it was that they should not be misunderstood or misrepresented; that in the administration of justice, an example should be held up to the public in punishing any individual for an offence to public morals, growing out of an injury to another individual, was a doctrine to which he readily subscribed. But however deeply that was impressed upon his mind, yet when any individual came into that court to complain of a civil injury, he must have his case determined by the rules of the English law and upon that broad principle he denied that the duke of Hamilton could be called upon to answer for this charge as the present case stood; and however the noble and able judge might lament the conduct of the duke of Hamilton in this case, and he did not stand in that court to defend that conduct, yet he was persuaded his lordship would find himself called upon by the rules of law, which were more important in a court of justice than the conduct of any individual, however exalted he might be, to say that the plaintiff could not maintain this action. He admitted that the noble duke had been guilty of a breach of moral duty, but still the case must be disposed of according to the rules of

the law of England. He was not instructed by the duke of Hamilton to attack the character of Mr. Esten. He was ready and willing to admit that he became the husband of the lady because he loved her. It was extremely natural he should, for she was certainly a very handsome woman, and highly accomplished; he had, as well as many others, had occasion to admire her talents, as she had given public proof of them upon the stage. He did not accuse Mr. Esten of any thing dishonourable. He did not mean to say, that at the time he left his wife it was not necessary he should do so, in order that he might go to other parts of the world to increase his fortune. He admitted to the full extent the observations of Mr. Gibbs, upon the virtue as well as vice of persons upon the stage. He had the pleasure to be acquainted with the greatest and the brightest character that ever appeared upon it; she was a pattern to others for her conjugal fidelity and her maternal affection, as well as for her transcendant talents; she was an ornament to her sex as well as to her profession. There were many others whose virtue was unquestionable; nor did he mean to insinuate that damages ought to be small, because the person alleged to be seduced had appeared upon the stage; no such illiberal idea had ever entered into his mind, and he hoped it never would. But the question here was, what was the situation of the party complaining? Upon that he maintained that the plaintiff had no right of action in this case. He might, however, if that was his object, go with his nonsuit before the house of lords, and he did not apprehend that that would be a reason for parliament refusing to grant him a divorce.

He

He held a paper in his hand, which would put an end at once to this cause, notwithstanding that the duke of Hamilton had done that with ostentation in public which ought not to have been done any where: and so be was sure his lord ship would tell the jury when that paper came to be read. Mr. Esten separated from bis wife, no matter whether for a good or a bad reason. That separation put an end to his right to maintain this action. For the law of England in this case was governed by the very same rules that governed the Greenland fishery. If you strike a whale; it is yours while you keep hold of the line; keep the line fast and the fish is yours; so that if you strike a whale in Greenland, and your line is long enough, the fish shall be yours, though it should pass to Nova Zembla, provided you keep hold of the line; but if you let go the line, the fish becomes the property of the next who strikes it.So in this case, the wife would be the property of the plaintiff, had he kept fast the line: bup having let go the line, she became the property of the next who struck her. Such were the plaintiff's and defendant's cases; for the law of Greenland with respect to whales, was the law of England with respect to women. The plaintiff in this case had let the line slip out of his hand when he signed an agree ment for a separation between him and his wife.-[Here Mr Erskine read the deed of separation, by which the plaintiff covenanted that he should have no future authority over his wife during life, and agreed to separate for ever.]

Lord Kenyon asked Mr. Gibbs what he had to say to this deed?

Mr. Gibbs said he was aware of this deed, but he wished his lord

ship to make a case of this, that it might be argued before the court.

Lord Kenyon said, he was of opinion that this deed put an end to this action, for the ground of the action was, that the plaintiff had lost the comfort of the society of his wife. If he gave up his right of insisting upon that society, as by this deed he clearly had, the very ground of the action was gone. He could not, however forbear lamenting, that a branch of one of the oldest families in this country, one of the first in rank in North Britain, should be guilty of such indecorum as the noble duke had been in this case. He felt it as an instance of shameful depravity, and he should not be sorry if there were means of punishing him for his guilt, by the law; but he could not do it; his judgment must be consistent with the rules of law.

Mr. Gibbs asked his lordship to grant a case upon the subject.

Lord Kenyon said, that when a gentleman of known and acknow ledged talents and abilities at the bar asked for a case, upon a matter which he really thought to be arguable, he should be sorry to refuse it, but he could not do that out of mere compliment to the anxiety of the parties. This was a point which did not involve any doubt, and therefore, unless Mr. Gibbs pressed it with confidence, he thought it bis duty not to grant a case, for it would be idle to argue a thing that was already clear. Had there been only a temporary separation, he should have thought that no bar to the action; but here the separation was absolute, for the. plaintiff could never compel his wife to return to him, and therefore this act, however immoral, and immoral it certainly was, and highly so from such an elevated (C2)

cha

I have the honour to acquaint your lordship, that intelligence has been received that two French frigates, a corvette and a lugger, appeared off the east of Pembrokeshire, on the 22d instant, and on the evening of that day disembarked some troops (reported by deserters to be about 1200 men, but with out field pieces. Every exertion had been made by the lord lieutenant and gentlemen of that county and its neighbourhood, for taking the proper steps on this occasion; and the greatest zeal and loyalty has been shewn by all ranks of people. Immediately on an account having been received at Plymouth of this force having appeared in the Bristol Channel, frigates were dispatched from Plymouth in quest of them. I have the honour to be, &c. PORTLAND.

This letter was followed in the evening by an extraordinary gazette; containing the same facts as stated in a letter from lord Milford, lord lieutenant of the county of Pembroke; and accompanied with the following letter to the duke of Portland from lieut. col. Orchard, commanding the North Devon volunteers.

'I think it my duty to state to your grace, that I yesteruay received an express from Ilfracombe, men

tioning that there were three French frigates off that place; that they had scuttled several merchantmen, and were attempting to destroy the shipping in the harbour. They begged that I would immediately order the North Devon regiment of volunteers under my command to march to their assistance. In consequence of this representation, I ordered the men to get ready to march as soon as possible. I have great satisfaction in saying, that in four hours I found every officer and man that was ordered to the parade at Biddeford (fifteen miles from home) ready and willing to march to any place they should be commanded to go to. I cannot express the satisfaction I felt on seeing the men so willing to defend their king and country; at the same time as silent, orderly, and sober, as might be expected at a morning parade of an old regiment. The greatest exertions were made by all descriptions of people to assist, and to render every service in their power. As I was preparing to march, I received an account from Ilfracombe, that the French ships were gone from the coast, and that tranquillity was again restored to the town. How far the report was well founded, I cannot possibly say, but as this affair may be misrepresented and exaggerated, I trust your grace will excuse my trou bling you with this letter; and I flatter myself it must give you plea sure to hear of the loyalty of this neighbourhood, and that the beha viour of the volunteers and inhabitants will meet the approbation of his majesty.'

Sunday, Feb. 26.

Another extraordinary gazette has the following extracts of letters from lord Milford to the duke of Portland.

Haverfordwest, Feb. 24, 6 A. M. Since I had the honour of writing last to your grace by express, I have received information of the French ships having sailed, and left three hundred men behind, who have surrendered themselves prisoners. The great spirit and loyalty that the gentlemen and peasantry have shewn on this occasion exceds description. Many thousands of the latter assembled, armed with pikes and scythes, and attacked the enemy, previous to the arrival of the troops that were sent against

them.'

Haverfordwest, Feb. 24, 9 P. M.

I have the honour and pleasure to inform your grace, that the whole of the French troops, amounting to near fourteen hundred men, have surrendered, and are now on their march to Haverfordwest. 1 have taken the first opportunity of announcing this good news to your grace, and shall have the honour of writing again to your grace by to-morrow's post.'

Whitehall, Feb. 27, 1797. A letter, of which the following is a copy, has been this day received from the right honourable lord Cawdor, by his grace the duke of Portland, his majesty's principal secretary of state for the home department. Fishguard, Friday, Feb. 24, 1797. My lord,

In consequence of having received information, on Wednesday night at eleven o'clock, that three large ships of war and a lugger had anchored in a small roadsted, upon the coast in the neighbourhood of this town, I proceeded immediately, with a detachment of the Cardigan militia and all the provincial force I could collect, to the place. I soon gained positive intelligence they had disembarked

about 1200 men, but no cannon. Upon the night's setting in, a French officer, whom I found to be the second in command, came in with a letter, a copy of which I have the honour to inclose to your grace, together with my answer: in consequence of which they determined to surrender themselves prisoners of war, and accordingly laid down their arms this day at two o'clock.

I cannot at this moment inform your grace of the exact number of prisoners, but I believe it to be their whole force: it is my intention to march them this night to Haverfordwest, where I shall make the best distribution in my power. The frigates, corvette, and lugger got under weigh yesterday evening, and were this morning entirely out of sight.

The fatigue we have experienced will, I trust, excuse me to your grace for not giving a more particular detail; but my anxiety to do justice to the officers and men I had the honour to command, will induce me to attend your grace, with as little delay as possible, to state their merits, and at the same time to give you every information in my power upon this subject.

The spirit of loyalty which has pervaded all ranks throughout this country, is infinitely beyond what I can express. I am, &c.

CAWDOR. Cardigan Bay, 5th of Ventose, 5th year of the republic.

Sir,