partially, upon a prosecution by the House of Commons, or upon any other judicial proceeding whatsoever, it is a high and valuable privilege of the People's Representatives in Parliament to proceed against the offenders by impeachment; but it is not the duty of any member of that high assembly, to disparage the decisions of the Judges, by invidious observations, without any public proceeding which may bring their merits, or demerits, into public examination. Such a course is injurious to those who have been the subjects of them; disrespectful to the magistrates who have pronounced them and contrary to the spirit and character of the British Con stitution.

;

MORTON AGAINST FENN.

SPEECH

IN THE

COURT OF KING'S BENCH

AGAINST A NEW TRIAL.

PREFACE.

THE following Speech may appear, at first glance, to be scarcely worthy of a place in a collection of pleadings upon so many interesting subjects; but it will be found, on examination, to contain very important principles of law. The occasion of it was shortly this. A woman of the name of Morton, who was the Plaintiff, in a Cause tried before Lord Mansfield at the sittings at Guildhall, in London, had hired herself to be Housekeeper to a Mr. Fenn, who was the Defendant, an old and infirm man.Mrs. Morton, the Plaintiff, was not a young woman, and had no great personal recommendations.-The old gentleman, however, thought otherwise; and, to induce his housekeeper to cohabit with him, had promised to marry her; the breach of which promise was the foundation of an action to recover damages,

The Cause was conducted by Lord Erskine, who had not then been long at the Bar.-There is no note of what passed at the Trial, nor is it material; except that, after the Plaintiff's case had been opened, and, after some cross examination of the Witness who proved the promise, with a view to ridicule the person and manners of the Plaintiff, Mr. Wallace, then Attorney General, and who was a very able Nisi Prius advocate, endeavoured, as the lawyers call it, without calling witnesses, to laugh the Cause out of Court, by representing, that neither of the parties to the contract had any loss from the breach of it, as the Plaintiff was an ugly old woman, and the Defendant, who was then in Court, and whom he pointed out to the Jury to make the scene more ludicrous, was not a person, in the loss of whom, as A HUSBAND, there could be any claim to more than a farthing damages.-The Jury, however, returned a verdict of TWO THOUSAND POUNDS; and, in the term which followed, a Rule having been obtained by the Attorney General for setting aside the verdict, and for a new trial, on the ground, that the damages were EXCESSIVE, the following very short Speech was made by Mr. Erskine, maintaining his Client's right to the whole money, and denying the jurisdiction of the Court, in such a case, to impeach the verdict of the Jury.

Perhaps, there is no subject more important in the whole volumes of the law, than that which regards the distinct jurisdictions of Judges and Juries in that'

mixed form of trial, which is the peculiar and the best feature in the British Constitution.-The subject, as it applies to criminal cases, is treated of in every possible point of view in the Dean of St. Asaph's Case in the first volume of the former Collection; but it is most important, also (even as it regards civil cases), that the distinct offices of Judges and Juries should be thoroughly understood, and rigidly maintained.—If in civil actions the Court had no jurisdiction to set aside verdicts, and to grant new trials, even in cases where the Jury may either have mistaken the law, or where they may have assessed damages by no means commensurate with the loss of property, or with the injury sustained by the party complaining; if, in cases where Juries may have assessed damages either manifestly and grossly excessive, or unjustly inadequate, the Court had no jurisdiction to send the case to another hearing for more mature consideration, Trial by Jury, the boast and glory of our country, would be as great a national evil, as it is now a benefit and a blessing; but if, on the other hand, revisions of verdicts were suffered to take place, unless in cases of manifest injustice; if new trials were to be awarded, because Judges might differ from Juries upon occasions where men of sense and justice might reasonably differ from one another, such a proceeding would be the substitution of judicial authority, in fixed magistrates, for the discretion lodged by the Constitution in the popular jurisdictions of the country.

Every pleading, therefore, which accurately marks out, and firmly maintains, those salutary boundaries, though already very well understood and ascertained, is worthy of a faithful report. On the present occasion, the Court refused to set aside the verdict, upon the principles contained in the short Speech which follows.

MY LORD,

THE jurisdiction exercised by the Court in cases of excessive damages stands upon so sensible and so clear a principle, that the bare stating of it must, in itself, be an answer to the rule for a new trial which the Defendant has obtained.

In cases of pecuniary contracts, the damage is matter of visible and certain calculation; the Court. can estimate it as well as the Jury; and though it never interferes, on account of those variations, which may be fairly supposed to have arisen from the different degrees of credit given to the evidence, yet where the Jury steps beyond every possible estimate of the injury arising from the contract broken, the Court must say that the verdict is wrong; because it is a subject upon which there can be no difference of judgment amongst reasonable men; the advantage of a pecuniary contract, and, consequently, the loss following from the breach of it, being a matter