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Les diagrammes suivants iliustrent la mAthode. 1 2 3 1 2 3 4 5 6 *'"^; /^if^.^f^'f r ■ tfS!9f 35085 f REPORT TSE— ' 07 THE CASE OF Sk^tWtn fH^artiilfff vs. eforne |B^a(iii» TniED BEFORE OBJSP lUSTZOB OAMPBIIUL, AT THE AUDLAND DISTRICT ASSIZES, SEfTEMBER, 1826. HnrcwToir: PRINTED AT THE HERALD OFEICE. 1826. BlBUOJHfcQUE J PHILMMO«^| Qu(»c,Canm*,I .Wiwu«»*f "■-y"* H«*,« . 4"-*-'."— ; ,;_•"*'». .,™..*»^- ■■•~^r.v:'^»> 1 m^mama ■y.-— a ]^f#ortf »u ""••"tsWlMa****- C. A. HAGEEMAN. M. S. BIDWELL, akb Q. MACAULAY, E«<»ci*tf, Couiuil for the FUMtiffi The Solicitoh G.nibal BOULTON. H. CASSADY. Ji»r». *»» '• S- CART- WRIGHT, E8«uiRK8, Cmavtd for the Defmdanl. JURY. Samuel McChea, Patrick Black, John HyneIi Edward McFatridob, Chester Hatch, Thomas Whitley, Willi A« Asheet, Jaheii M. Roribok, Joseph Wood, John Dttmcah, Jame4 Husbet, WiLUAM LtAt. Mr. BiDWEU. opened the cue. Mat it please tour IiORdbhip, And Gentlemen of the Jury, YOU cannot but per- ceive that thiB cause excites more than ordinary interest ; not so much from its general nature, as from the peculiar cir- cumstances attending it. Instead of at- tempting an ostentatious display of them, «r any appeal to your passions, I shall best comply with the wishes of my client, and my own sense oif professional duty and my respect for your candour and in- tellijience, by a simple, unvarnished state- ment of the case. ' It is in form an action of assumpsit, brought by the Plaintiff to recover satis- faction for boarding, clothing and other necessaries provided by him for the De- fendant's wife, during a period of about t •el ve years. The declaration contains two counts, that is two modes of stating the cause of action ; but the substance is the same. To this declaration the De- fendant has pleaded the general issue, which is a mere denial of the whole cause of action. Although the form nf acticn is common , yet, foriunately, such actions as the pre- sent are not of frequent occurrence am- ons us ; and, for the honor of the country, it 18 t. be hoped that another similar to this, in all its circumstances of aggrava- tion, will not soon come before a Lourt *"BefoS'l detail the facts expected to b« proved on the part of the Plaintiff; p.r«nit me to call your attention to th« |irinciple» "f law. which must govern «»»« apphc.^a of those facts to the ca»e under conside- "it U a sound general principle, that a husband is bound by law ♦« Prov.de for and support his wife, during the mtermar- riage. \ married woman is legally inca- ffl ■X. TRIAL. pable of forming contracts of hn own. She has no legal means of pioviding for Jjerself. Her property io rested in her husband, or subjected to his use and con- trol. Even her earnings are not her own, out his. She can bring no action tn pro tPCt her person or her righto, but witii his concurrence and in his nnme. If he were not Ob iged to provide for her. she vould be liable to starve. His obligation, there- lore, to make a provision for her, accord ing to his means and her nere^sitii-s. is th« reasonable and necessary result of the iaw of marritKe. «n?''''L'-''.^''L°''''*?**''"' 'iesupon him. not ^hJnTK'"'**'*'^"*^ together, but also S " ^'^l »rc-«eparated. if such separa- tion is wih his consent, or in consequence of his fault, and not hers. Comyn/a sen Ji t.^.lT"*"^ T'^^' "P"" •^""tracts. TT ^'* L*.'^ •" *''^^* «'"'-d8 ; " Where the husband leaves his wif« ; or refuses to III': -u *? '"";*'»*• '"m ; «r if he treat fcer so .as to oblige her to depart from liiwrJ''"?.' "u" T'"-."^ *''«« ^««« s fZ^f" *'" ''"'''■'"" ''»'''« to her cm each of these point., is supported bv j ,di. cial authorities. Indeed U^s so obvfi r^ reasonable that eve.y man's unders.an- ding and feelings at once approve of it. I will, however, just read a fc'w decisis tVoSiJKhoHt;: '""•""'''' "^"""l"- 1 -jIVT^T ""t ^':'^''' ^ ^««- ""'J P">'er, 151, Lhnmhre Justice said, •' In eeneral 7^:t\i '11?'*''"" t""" p'aci b^ ':„: l?p^ ;. ' ^i^T^T *» •"»'"««'•' the wife lies upon the husband, unless she forfeits her right to that maintenance by her own Mt.sfied bj the evidence, fhat the Defen- ?ed f;nm t- ' *'*'" ^'"^ *"■- fi"t separa. ted from him, or.f any subsequent stage of their senaration. consented to her refi- Ih ?" P"'^:'' •'l»t Hhe had forfeited her pf in IV """"tamed, you must allow the J^'; mifnt^nr:.""'"' '^""'p''""""" f- Mo i" '"r'r" """-e than one ground. that "' ?r "^ '^"'•^ ^''''' '* *^«'' «>' ^ iJed equivalent md that the necessaries circumstan* «w, if Mrs. last's house ■ his cruelty alant to his )id he is lia- : furnished tt8. In our I protector ion was in you. rtwright, 2 ^ for sedu- i's wife, he house, and ent by the that she r husband's tment. It that " /if ■ that »>he is fA fear of iafeiy, nay )tect her ; ise, no ac- t instance, cing; away ;ip8 to the principle, me; and, yon, it is is wife so his house any per- lative,es- ay honorr tbly, receive and protect her, and, of courst, maintain an acticn for hfr necfs- garv support. A well gn^unded appre- he>'sion of sucrt injury, whether actually inflicted, or not, is suffiricnt. Nor need it be an appr«hen*ion ot being murdered, or maimed. The fear of any thing which comes within »he meanina of the term «• bodily injury," ii a lawful cause for her quitting his house, and resorting to the orotpction of some other person. If, for iilstance, she has suRVred, or has good rea- son to fear, a horsewhipping from her hus- band, it brings htr ca-*e within this rule of law ; for that is a " bodily injury," as well as an indignity. The old barbarous doc- ti Ine, that a husband may beat his wife, by way of correction, is exploded in modern times. Such violence is illegal, and may be the subject of an indictment, or of sure- ties for the peare ; and. therefore, accor- ding to the authority last cited, a father, a brother, or any oth< r friend may, in a case of such corporal injury, safely and honorably interfere, and aflord ner pro- . tection and support. To show that Lord Kenyan was not sin- gular in his view of the law on this point, I will produce another high authority. In Ewers vs. Hutton, 3 Esp. 235, Lord El- don, then Chief Justice of the Common Pleas, now Lord Chancellor, declared " there was no doubt of the law, that where a husband, either by ill treatment com- pelled his wife to leave his house from motives of personal safety, or turned her out of doors, any person who afforded her protection, and furnished her with neces- saries correspondent to his rank and situ- ation in life, could compel the husband to pay for them." Even should we fail to prove that the Defendant's wife had such a lawful cause for leaving his house, in the first instance ; if he afterwards refused to receive her, that was a turning of her out of doors. In Rawlins vs. VanDyke, 3 E^p. 251, Lord Eldon said, " My conception of the law is this, that if a man will not receive his wife into his house, h«" turns her out of doors ; and if he does so, he sends with her credit f«r her reasonable expences." Should you, then, Gentlemen of the Jury, be convinced, from the declarations of the Defendant, or other evident e which may be adduced, that tlie Defendant would not receive his wife into his house, you have the opinion of Lord Chancellor Eldun, the highest law authority in England, that it was tantamount to turning her oat of doors, and that he thereby sent with her credit for Wer reasonaDle expenses. His Lordship also stated, in the Report of Ew^s vs. hutton, already referred to, " That it was settled in a case in Lord Raymond's Rpports. to which he subscri- bed, that if the wife had eloped, and af- terwards solicited to be received into the husband's house, and the husband rtjfused to receive her, from that time he was bound for necessaries furnished to her." You will please, Gentlemen, to bear this rule of law in your minds, in order to com- Rai e it with the evidence in the case. IC Irs. Ham had eloped from her husband, or whatever was the original cause of her separation from him, yet if she afterwards solicited to be recrived into his house, and was not so received, from that time, at least, says the law, you must hold him re- sponsible for the necessaries furnished to her by the Plaintiff. To these concurring authorities permit me to add one decision of the late Lord Chief Justice Ellenborough. In Lidlow vs. Wilmot, 2d Stark. 78, an action simi- lar to the present, he told the Jury, " The first question for consideration is whether the Defendant turned his wife out of doors, or by the indecency of his conduct pre- cluded her from living with him ; for then he was bound by law to find her means of support adequate to her situation." And again, " When the wife lives separately from her husband without any fault of her own. the law provides that her husband shall be liable for her adequate mainte- nance." If, then, Mrs. Ham left her husband'* house, and lived separately from him, •• without anv fault of her own," the law, as stated by 'Lord Ellenborough, provides that her husband shall be liable for her ad. equate maintenance, in such an action as you are now trying. If he " precluded her from living with him," not merely by flogging her, but even "by the indecency of his conduct," he is bound by law to pay for her support adequate to her sitn- ation. These principles of la*, my Lord, are sanctioned by such a weight of venerable authorities, and are so rational and just in themselves, that it would be superflu- ous in me «o offer arguments in support of them. I have read them to the Court, in your hearing. Gentlemen of the Jury, that you may have them distinctly in view. ) R»»""H TRIAL. and be tble, as tlie trial proceeds, to ap- ply tVem to the fucts which will be pro- ved, and which I will now state to you, according to the instructions of ray cli- ent. You have already learned that the De- fendant'u wife is the Plaintiff's daiiKhttr. They were married on the 25th of April, 1813. Their parents had for many years been neighbours, their families in habits of neii;hbtiurly intercourse, and they them- selves brought up together, acquainted with each other from childhood, in point of age, education, circumstances, and prospects of life, the match was an equal one. It was preceded by an honorable course of attentions and courtship ; and every thing seemed to justify art expecta- tion of mutual comfort and respectabili- ty. But, I am sorry to be obliged to add, tfiat scarcely four short months had elaps- ed, when the wife began to be treated with coldness, indignity and cruelty. She suffered lonsj in silence, and endeavoured to hide her suffenngs. Before she applied to her own family or friends for (jrotec- tion, she made an appeal to her husband's mother, for her interposition, to check the ill treatment she endufd, still endea- vouring to avoid any disclosure of it, to the prejudice of her husband. Suspicion, however, was excited. Rumour told the tide; and it reached the Plaintiff's ears Upon going to the house, he found his daughter in tears, occasioned by her hus- band's treatment. The feelings uf a fa- ther induced him to enquire into the c.tuse, with » view to pacification, if possible. It waria-ntlemen, let me put it to ynu, as men of Mnse and virtue, as husbands and fa- thers, which I believe most, if not all, of jou are ; were not those conditions imU- cent, as well as insulting ? Was not their indecency xdch an, in the language of Lord Ellenhwnuph, " precludeil her from livinic with him"? Would any of you re- quire such degratling cunditions from a wife? Would you be willing to see an a- miable, well educated daughter rabmit to such degradation ? Let your owo cooscien- ces answer. She did not comply. No modest, vir- tuous woman could ; nor could he have intended or expected her compliance. It was as effectual a rejection of her solicit- ation as if he had expressed it in more direct and manly terras. She returned to her father's house ; and, all hope of re- concilement or satisfaction beiu^ at an end, the Plaintiff has been constrained to appeal to you for redress- Having stated the facts, as I am instruc- ted to expect they will be proved, I will nake two or three remarks upon them, before 1 proceed to the evidence. It is incumbent on the Plaintifl to prove his case, by reasonable evidence, adapted to the nature and cirrumstances of it. The marriage of the Defendant, the sep- aration »f his wife from him, her residence ift the Plaintiff's family, and his supply- ing her with boarding, clothing and other necessaries, in a cmifurtable and respec- table style, suitable to the Defendant's , eircumstnncei in life, are facts likely to be proved by direct and explicit testimr- Dy. But his ill treatment of his wife is a matter of a different nature, and of «rhich it would be unreasonable to expect the same kind or degree of evidence. Men do not call witnesses to attest their criminality or misconduct, but endeavour to conceal actions, of which they have leason to feel ashamed, by performing tiiem secretly, and in the absence of spec- tators. Such is the unmanly act of beat- iag a helpless female. It is a deed of darkness. No man, who values the opin- ion of society, however cruel or vindictive he may be, no man, in the preoence of witnesses, could have the front to lift a coward arm against an unprotected wo- man, aad that woman his own confiding E wife, who has put heiself in his power, and whom he is boon J! in honor to protect* With every motive lor secre<-y and con» ce^fnent, he iuflhe, too, from a sense of nuirtification, a dread o$ becoming the subject of gossiping si an- dal, or perhaps a yet unextinguiiined re- gard for her husband, and a lingering hop* of his returning kindness, has Htrong in- ducements to keep her wrongs to herself, and to palliate or disavow them. Yoa will not, therefore, expect the abuse com- plained of in this case to be proved by eye witnesses, but by indirect and circum- stantial evidence, or his inadvertent con- fessions. The only person who cuuld tes- tify directly to the lacts is not a compe- tent witness, nor can her declarations tie admitted as evidence for or against either arty, if her testimony were admissi- le, the Plaintiff's case would be easily proved. There is another circumstance worthy of consideration. Th» principal transac- tions, which occurred before witnesses^ took place in the midst of the Defendant's relatives, whose partialities and prejudi- ces, without imputing any intentional per- version of the truth, may be supposed to have produced impressions in his favour and against the Plaintiff, and, though they are not sensible of it, may give a colour- ing to their recollection ami representa* tion of the facts. For such a probable bias you will make due allowance. The first witness I shall produce is the Defendant himself; and surely he will not object ag^ainst the testimony of his own letters, in which he must be suppo- sed to have put the best face upon his con- duct and his cause. It has already been stated, that the Defendant's wife, anxious to effect a reconciliation with her husband, induced the Plaintiff to write him a letter adapted to that purpose. It was intended as a peace offering. The exact purport (•f it we do not know, as tJie Plaintiff kept no copy : but I will read and put in the Defendant's answer. Sirj '• Bath 26th September 1825 I received your lettf^r of this data wherein you state that in order to com- promise the existing difficulty between me and ray wife, but hud I hiave been in your place at the time aii<(. with the feel* i "^^^ TRIAL. ingi that then occupird jour mind, I would have t more favourable upinioi. of jour conduct. but mj good Sir, you ought to re- collect that passion ought to be alwajs to be kept from overruling judgment — and in the caae between ua vou certainly ac- ted upon that principle, 1 know from this re«8on because all that my wife you be- lieved, anJ what I said you treated with the utmost contempt, when at the same time I was tellin;^ you the truth, whether she did or not, 1 considered myself abu- sed by you very Krossly, as well as some other* of your family, and posativelj know that 1 was shamefully used by you, and what a great error you committed in tak- ing her, parting man and wifn, how great the crime, now it appears that youliave r.o obJKctione to my living with her, what a change of times witnin your breast un- asked for by me, it appears to me that when I was living with her, that you and your family wished to rule me, but I must inform you that you, nor your wife, nor my wife, nor any of vour family is ever going to rule me, as 1 will not be inter- fereii with by you nor no other person, I must let you know in soft words that I will never be governed by you nor no one else, you are not to come to my house to order me or my wife or my child no that is for me to see to— not for you or your family to do so, I let her return tor the present until the 24th of next month 1 wish (hat length of time to take the case into serious consideration, as it is a mat- ter ef great importance to me, as I wish to spend the remainder of my days as I have for the ten years past in peace and quietness, and in that time if I can posa- bly make myself think that you and your family will let her remain quietly, and that I can also think that she will behave herself like K virtuous and pious woman from this time forward I will then take her, but at the same t'me it weighs heavy on my mind, to think that she has been gone ten years, and then come back to live with so bad a man as I r»presented to be by you as well as your family, your opinion must have altered yery much a- bout me, but my opinion has nut altered I am yours ^c (Signed) GEORGE HAM— To Mr. Sheloik Hawlbt £rne$t Town. There, Gentlenen, you have the entire of the epistle, ' soft words' and bard. It IS the Defendar4'» own statement of his side of the case ; and 1 beg your attention to a few paisages containeil in it. • All nJy wift [said] you believed, and what 1 said you treated with the utmost contempt.' Here is a clear admissiiin. that in his presence his w'fe had charged him, before her father, with ill treatment, and that the father, after hearing them both, believed her charge to be true. This may not, perhaps, satisfy you that it was true in fact, as she asserted, and her fa- ther believed ; but it at least admits that the PlaintiS* acted under a conviction of its truth ; and, therefore, it acquits him of any wantonness of interference. His whole conduct, indeed, throughout this unhappy misunderstanding between the Defendant and his wife, carries self evi- dence Ufa sincere belief that he b<>at and abused her, so that she could not live with him in safety. • Parting man and wife, how great the crime' ! With what a grace does this mo- ral reflection come from a man, who glo- ried in the separation, and has ever since troclaimed himself unwilling to live with is wife, and even in this very letter, boasts of the • peace and quietness' he has enjoyed during the ten years of his libera- tiun from her ! 'Now it appears that you have no ob- jections to my living with her.' The Plaintift" never did object to their living together, provided she rould be safe fronx violence and abuse. He gave her to him at the marriage altar, in good faith, and in con6dence that he would love and che- rish her, as he solemnly called God and men to witness that he would ; and had now no objections to his living with her» if she could only have a reasonable assur- ance of good treatment. That was all he had ever n quirf d, and all that was now experted or desired. • Unasked for by me.' Observe. Gen- tlemen ; the overture fur a reconciliation, made by his wife and her father, in the most courteous and condescending man- ner, was' unasked for,' uudeaired, unweU come} and it was accordingly met by him with repulsive taunts. This circumstance shews where the blame of their long sep. aration lies. Indeed the very fact, that a dependant wife, of her age and character and prosi'ccts, left her husband's house and returtied to her father's, there to be a burden upon him in his moderate circum- stances, submitting to all the mortific*- I, 1 A \ „*A£. 1 HAWLEY VS. HAM. ■5 tion, embarrassment and reproach atten* ding suih a st-paration from hfr hosband, and her onl.y chilu, cuunteracting her ma- ternal reelings, the most invincible of hu- man passions ; this fact itself aibtda a strong presumption, that she was driven to such sacrifices by treatment which could not be born. On tiiat suppooition alone her conduct can be accounted for. This presumptive evidence is now con- firmed by the occurrences of the last year. Her oft'e'r, after such a length of time, to forgive and forget all that was pnst, and to live together again ; and the manner in which she was, on that occasiont trifled with and repuUed, leave no doubt that the fault of their separation is his, and not hers, whatever reasons he may choose to assign for it. ' Ynu and your family wished to rule mc.' This, 1 believe, is the only time he ever made that excuse for his violent treat, went of his wife, Such varii mcnt of facts. When the Dereiidant hitd communirs- ted to his wife the tesiilt of one month's coDsiderrition of her proposal, in proseru- tiai) of his concerted systum of defensive operations, he wrote the PifiintiflTauoiher letter, which I will now read to y.>u. " Bath ZdJVovemher 1825 Mr Sheldin Hnwley, Sir This is to inform you thnt your daughter Hester my wife, C'tlied at my house on Monday the 24th day uf Octo- ber I82i at which time I requested her to stay with me ant that I would give her a decent living and m<«intenance if she would stay, ard forbid her e;oing; away, I therefore hereby fo>bid, and notify you to not trust or harbor my wife Hester on my account as I will pay no debts of her cor- tracting — I am Sir yours S(c (Signed) GKORGE HAM." 6eiitleme!>, 1 will detain you with ve- ry 'fiw remarks upon this scrap of written evidence. It purports to be a letter of informatioh. *Thifer.dant'3 warning, therefore, is of no avail. • I requested her to stay with me.' To call wiiat he said to his wife a request to '~,er to stay with him, is a perversion of languaKe, a barefaced mockery. < And that I would give her a decent living and maintenance.' What ideas of decency must a man have, to pretend that what he rcqui.ed of his wife, as the con- ditions of her reception, wss a decent li- ving ! • Your daughter Hester my wif?.' Ifere, Gentlemen, is tht> Defendant's i>wn cer- tificate, that the Plainti|t''i: daughter is his wife : wiiioli supercede;' the neressitj of any further proof of the rr irriage. Gt-ntJemtn of th^ Jury, w? will only call three or f(>ur witnesses, whose testi- mony, in addi* on to these letter*., will, I trust, satisfy you, that t!ie Di-fendant'g wife has been respectubly ninintained by thf Plaintiff the irst twelve years, both with the cons'-nt of the Defendant, and in consequent e of his ill treatment of her; either o*' which will entitle the Plaintitf tea remuneration. No deduction should be made on acruunt of any personal ser- vices of the Defendant's wit ^ ; bera'jse he has r.iit thought proper to plead or t!;ive notite of a set off. but has mvde his elec- tion to bring a rniss action, claiming da- mages for harbonring her, and depriving him of her service, in which action, and not in the pre*ent, anv claim he mav have 0.1 that score wHI be a pr< p^r itubject of consideration. In thifa case it is your du- ty to all'iw the Plaii'tiiTa lair and full re- murieration for his mai''tenance of the Defendant's wife. The Defendant, vhose cir^um8^1n^es are affluent, has ample means of satisfaction. The amount of da- mages, within the limits of the declara- tion, is at your discretion ; and I hope you will give ^uch a verdict, as shall prove a salutary warning to husbands not to 'A\ treat their wives. Isabel Hawley^ being sworn, was exa- mined by Mr Hagerman. Witness is a sister of the D-fendant's wife, and daugh- ter of the Plaintiff; was present at the marriage of her sister with the Defendant. Two or three mimths after Mrs. Ham's confineinent, she whe will go with ynu. Defendant said again, shaking his whip over her, my lady, you must come with me ; and if vou live to have another child bv me, I shall dit:- chaige the nurse on the third day, and make you do all the work of the house, and if you should not get out of bed, I will flog you out. This was about a year or thirteen months after the marriage. « ■V HAWLEY VS. HAM. 11 ■mjr wifi.' Ifere, (lant's uwn cer- iflf *s daughter !• ier* (*)«■ nercitBitj c fTirriaje. y, w? will only les, whose testi- le letter*., will, I t'ne Dffendant's y niainiaineJ by 'elve years, both Defendant, and treatment of her; itie the Plaintitf lediiction should ny personal ser- wih ; beraij^ehe to plead or t!;ive 9 niKde his elec- inn, rlaimineda- r, and drprivir>g hich action, and aim he may have pn p^r itubject of ase iti<« yourdu- I fair and full re- tenance of the lefendant, vhose I'nt. has ample 'he amount of da- I nf the declara- ; and I hope you as shall prove a bands not to Jll sworn, was exa> . Witness is a wife, and daugh- ) present at the h the Defendant, ter Mrs. Ham's a visit at her fa- of a snre breast, her, to take her C you must get roe, and ride be- e shaking a whip I sht' >vas so ill trsc back. Her wagwon, and she idant said again, sr, my lady, you d if you live to me, I shall ik- '. third day, and k of the house, et out of bed, I was about a vear r the marriage. Th'' Defendant finally brought a waggon, and his wife went with him, to go home. About thrcsp years ago witness laet the Defendant &. "idental'y, and spoke to him of the separi-tioii of him and his wife, ex- pressing a hope that thev might yet be re- conciled, and live happily together. The Defendant said he would nev.-r take his wife back, no. not even if she would go upon her kneci to him. On the 24th of September last, Mrs. Ham, accompanied by witness, went to Mr Ham's house in Path, and she uft'ered to live with himi He aeerued surprised to see her, said he was not a better man than when she left him, and ao"*^er man shall sleep in the same room? She said, this is not receiving me as a wife, nor treating me as such. He sa-d, if you do not think proper to stay upon these conditions, you must go. He »>« fur- ther, you must not be disappointed, if five or six other women should occasionallj come into the house with roe. Witness said, he added other expressions, whicli she did not like to repeat. Mrs. Ham told him she could not stay on such con- ditions, and went away. . . . Witness believes Defendant is in gooa circumstances. His wife was boarded, lodged and clothed respectably by her la- ther, at his expence, since she came home to his house, about 12 years. The chiia was kept at her father's until he was IB orl3 months old. . Crosa-fxavJned by the Sdtcttw Gen*- rat. Peter Perrv and his mother were present when the' Defendant came to her father's after his wife. Mrs. Ham was not so ill, w'nen she ttrst came home to ) 13 TRIAL. her father's, as when she went away- She came on foot with her motlier, from the Defendant's sisttr's. Her complaint was a. sore breast. She was willing to go home, biit thoui^ht she could not nde on liorse bark. Defendant went for a waggon, and cai ried her home. He flourished his ri- ding whip over her, appeared to be in a passion— and said, tiiakc yourself ready, my lady, and lome home with me. Wit- ness did not know the cause of his pas- sion. Mr. Pory whs there, and might see what she saw, but did not know whe- ther he took notiie of it. Mrs. Ham, whiU at her father's, was in- dustridUR, and when well did wotk as witness did, such as sewing, knitting, house work. &c. She did net take in Biuch i4«winjr. She was not able. Wit- ness did not know what reason Defendant had for saying io w;itness, three or four ^ears ago, that he would not live with his wife, if she would come upon her knees to him. Never heard Defendant say he was jealous of her— Does not think he had any cause for jealousy. Witness had no knowledge of her sister's being fond of a chair maker living at her father's, or of her wishing to go off with him; does not recollect any such person; never suw any person kissing her; never perceived any familiarities between Dr. Baker and her— Dr. Baker was sometimes at her fa- ther*!* ; never saw him take any liberties with Mrs. Ham. Defendant was a shoe maker, at the time of his marriaee, and worked some- times on a farm. The Plaintiffis a far- mer ; keeps no servants ; the work is done by the family. Defendant, while his wife was with him, lived at his father's house, but had a farm of his own. and has since built in the village, and has been trading; Witness does not know that Defendant objected against the child's living at the Plaintiff's for fear of his learning to speak improper language, or acquire bad princi- ples ; never knew the child taught by a- ny body to swear— tie had just begun to apeak a few words. The Defendant, kit- ting on his horse, before the houxe, a^ked to kiss the child, took him into his armF. and rode off with him, against the mother's will. She afterwards went to get the ehild ba^k, but did not succeed. The Plaintiff belongs to the Church of England, attends church regularly with his family; witness dnes not know wlie- tlier the Defendant professes any religion ; the Plaintiff lives about three miles dis- tant. Witness is not aware that her sis- ter was required to joii. the Methodists ; recollects Mrs. Ham's coming home witb her father ; witness saw marks which she thought were the effect of pinches on her arm; but was quite young then ; is now 2i years old. Witness does not recol- lect that her father threatened the Defen- dant; lecolli'ctsth.^t when #he went with Mrs. Ham to the Defendant's house last October, he said she must be confined in a chamber, not that she should have the use of one; did not hear ihe Defendant intimate, as his motive for proposing to have another man sleep in the same bed< room, that she had heretofore expressed a fear that he would murder her, and vwsh- ed to prevent it. The l)tfendaiu's broth- ers Jacob Ham, Henry Ham, and Richard Ham, were present, and his brother in law William Fairfield. At the conversation at old Mr. Ham's, the S6th of September last year, the Defendant's father and mo- ther were present, and part of the time his sister. v Btf Mr. Hagerman—Mn. Ham always conducted with propriety when at her fa- ther's ; recollects tier refusing to go to parti<-8. By the Solicitor— ^tvn knew Mrs. Ham, either with or without the witness, sit up sparkins at night with William Fairfield or Samuel Clark. John Simpson, sworn, recoUerts that in 1814 or 15, in a converrstion with the De- fendant, as they were riding from the Conspcon lake to the Carrying Place, he asked the Defendant why he separated from his wife* The Defendant said, that in coiisequenre of some difference with her. he chastised her, and she left him. Witness understood him to say, that he chastised her with a horse whip, or riding whip, in consequence of which rhe went home to her father's ; and that he never intended to live with her again. Cross examined by the Solicitor Gene- ral — Witness lived at the Carrying Place, and was then building his house. De- fendant was keeping: simp there for F.bc- ne-ar Perry. Witness and Defendant were well acquainted, tnd were conver- sing together verv frei'ly. Witness is eoiifident that the Defendant said he chas- tised his wifo with a whip, and that that was the reason of her going home to her father's. Elizabeth Jimey was called as a wit- ;a \ / HAWLEY VS. HAM. n miles (lis- lat her sig- lethodists ; home witb I which she hrs OD her in ; is DOW not recol- the Defen- went with house last cnhfiued in I hnvK the D);r«!nilant oposing to ! 8ame bed< ixpressed a , and wsh- aiu's broth- nil Richard ther in law iinTersatioii September er and mo- ot the time lam alwajB :n at her fa* ig to go to cnew Mrs. the witness, :h William !erfg that in vith the De- I from the ng Plure.he e separated it said, that irence with le left him. say, that he ip.nr riding ch rhe went at he never in. kitnr Gene- rving Place, inusp. De- erp for F,bc» Dpfendant vpre conver- Witnp8<» is laid he chas- nd that that humc to her d as a wito J ness for the Plaintii!', but did nbt appear. Mr. Hagerman stated that she was a ma- terial witness, had been subpoenaed, and was in attendance t and he wished it to be noted that she wns publicly called, with t view to some proceeding against her for disappeaiingt and refusing to tektify. Collin McICe.nxie, Esquire, sworn, is a Magistrate, reHiding near the parties, is well a( quainted with them ; knows that Plaintilfhas maintained his daughter, the Defendant's wife, decently and respecta* biy, since the Defendant and his wife par- ted. When they were married, the De- fendant was a young man, doing well, had a farm of his owO} and improvements on it. The evidence on the part of the Plain- tiff being clospd, the Solicitor General rose, and, observed that he did not, at the eommencement of (he trial, anticipate the conclusion which he now thought he had reason to expect. He supposed the Plain- tiif would prove some of ^e facts neces- Bary to support the action ; but he had to- tally failed. He, therefore, moved for a nonsuit, to which, he said, he was entitled, on two grounds; Ist, that there was no evidence proper to support the action, the Plaintiff being himselt the wrongdoer in the first instance ; 2d. that no justifiable cause of separation had been proved. On the first point, he thought it was ev- ident that the Defendant did not turn his wife away, but the Plaintiff wrongfully took her home to his own house ; and no man should b« permitted to take advan- tage of his own wrong. On the second point, he contended that there was no proof of violence on the part of the Defendant towards his wife ; at least, of such violence as would authorize Mrs. Ham to leave her husband, and bind him to pay for her support at another per- son's house. He admitted that one wit- ness had sworn that the Defendant ac- knowledged to him that he had chastised her with a riding whip; but he insisted that such a chastisement was lawful, or certainly not sufficient to entitle her to leave 1,'im. Nothing short of danger or fear of the loss of life would be a justifia- ble cause of separation. He read several authorities in support of this position, and apfiealed to the Judge for the correctness of it. Jfr. Jlagerman opposed the motion for a nonsuit, ami contended that there was evidence to support the action on both of the grounds of action relied on. The De> fendaut's repeated declarations that he would not live with his wife amounted to evidence ot his implied consent that she should reside where she was, at her fa- ther's house ; and his letter contained hi* express consent to Iter residing there at least one month. There was also legal evidence, from his own conression, that he had used personal violence, and that that was the cause of her leaving him and go- ing home to her father's. On both of those grounds the action was supported. He had a right to have the case go to the Ju- ry, and he could not submit te be nonsuit* ed. The Solicitor Oetural replied, and de- fended the position he had before taken^ that tojustify a wife in departing from her husbatid's house, it must appear not onlj that there was violence on his part, but that it was violence endangering her life ; otherwise her departure wiu not necessa- ry. If there was occasion for it, she might apply to a magistrate to protect her by re- quiring the husband to find sureties for his goiid behaviour, which was a common occurrence, and the course pointed out bjr the law. Tkt Chief JuBtice said that to maintain an action of this kind, it was requisite to prove that the Defendant's conduct to his wife had been such as to render her de- parture necessary ; which in this case did not appear. It was true it had appeared in evidenre that a chastisement had taken place ; but, however ungallant such con- duct might be thought, a man had a right to chastise his wife moderately. To war- rant her leaving her husband, the chas- tisement must be such as to put her life in jeopardy. Such violence or danger was not proved in this case. Were it not for the Defendant's letter, he should not hesitate to direct a nonsuit. In that let- ter the Defendant informed the Plaintiff that he let his wife return until the next month ; which might imply his consent, that she should be boarded and supplied in the mean time by the Plaintiff at his house. It must therefore be submitted to the Jury to decide upon that question oft evidence. His Lordship wished the public to un- derstand what the law was in Bu<-h cases; that it was opposed to the practice ofr wives in running away from their hus- bands, and to the interferanre of parents in behalf of their married daughters, who / \ / \ /, r%\ 14 TRIAL. I I f Vk might happen to disagrev with their hut- banda. He censured the parents of Mr«. Ham for interfering in the controversjr between ;heir daughter and the Defen- dant; and in exemplificiition of what the conduct of a parent should be in tiuch a caie, he facetiously related an anecdote, wliich he thought was applicable to the pretcnt case. A man, whe had some dis- pute with his wife, gave her a moderate chastiseanent ; upon which she ran home, and complained to her father. The fa- ther, aflfectini; to resent thr husbiind'B be- haviour, said, what ! has the fellow had the impudence to beat mj daughter i Then I will be revenged on hini, and will beat his wife ; which he did, and sent her back to her husband, and whs no more troubled with their quarrels. Mr. Hawlej should bare done the same. The Solicitor Oeneral addressed the Court and Jury in the Defence* Mt Lord, hbouri> ? I aver that, for any thing that appeam tu the contrary, he is a mor> al, exemplary man, quite as respectable an Mr. Hawley or any of his fied that he has conducted with decency and propriety. And how, Oentlemen I would ask again, if these facts really ex- i: ence of the Plaintiff and his friends, this very Mr. Ham was. on one occasion, e« lected by his neighbours to represent them in Parliament P Let his character be compared with that of the Plaintiff, whose conduct has a1rea> dy appeared in part, and will be furthei^ proved to have been most improper. I am not retained to asperse him ; but I am instructed that we shall prove, that -rhen he went for his daughter, he said (o the Defendant, " You damned rascal, you have ill used my daughter, and she shall not live with you. I was able to support her before you married her, and I am so 't-.t : and you will be glad to come after er in three morths." That is a sample of the language of this moral man, this regular attendant upon public worship, this immaculate Clerk of th« Church. I state it according to my client's inatruc- tions. There he stands. 16 he has in- structed me wrong, the greater fool he ; for you will be governed by the evidence, and not by the statement I make from my brief. The Plaintiff had no right to interfere at all with the Defendant's family govern- ment. When a woman marries, she cea- ses to be under the protection of her fa- ther. Parental authority is at an end. The wife is bound to forsake father and mother and cleave to her husband. It i* his right to command, and her duty to o- bey. This is a matter of necessity ; oth- erwise there could be no government o£ (he family. For both cunnot be supreme. There cannot be two Kings in Brentford. One of them must have the ptjwer of go- verning the oilier. By the marriage, he i " / HAWLEY VS. MAM. 15 '■ is invested with authontj to restruin and contn I her H» may noverti her, a* he miKht a child or a 8*>rvant, and, if neces- sary. adni'niHter moderate <.oi rei'tion. It is not a rigb*, wht<-h 1 woulit exercise ; but it is one which the law allows, and a fnrent has no business to iiit>.rlere. The laiatiff. in this case, infringed tht De- fendant's rights, as a husband, by inter- fet-ing and taxing away his wife; and she did wrong in quitting him. He was then, it Stems, a poor shoemaker and day la- borer, and they probably thought him in- ferior tf> ihemselves ; but he has since, by his own industry and etertiona, without her assistance, become wealthy and res- pectable ; and now she wishes to return and share his wealth and respectability, to deck herself in the silks on his shelves, fi be a fine lady, and ride in her carriage. And the Plaintiff, who boasted of his »• biiity and willingness to maintain her, turns round, and calls upot; the Defendant for her maintenance. His claim is ab- surd. He has proved no illegal violence, *^ to justify her sepnration Irom her hus- band ; and there is nut a shadow of evi- dence of his consent The Plaintiff's Counsel, by resorting to the letter that has been read, to cover one month only with the appearance o£ a consent, virtu- > ally admits that there was no consent as to the residup of the term, eleven years and eleven months. Even ihis resort to •uch a pitiful expedient, to save the Plain- tiff's costs, will not avail him. To con- strue that expression in the letter into an iateniion that the Plaintiff should credit the Defendant for the board of his wife, if she is his wife, during thut month, would be a most forced construction of the words. He let her go back to her fa- ther's until the twenty-tourth of the next nonth ; but he did not thereby agree to pay her father for boarding her in the mean time. The letter has been analyzed with crit- ical ingenaity, to distort it from its na- tural meaning, and render it inconsistent and ridiculous; but I think it is a well written letter, very creditable to the wri- ter : it does him honor : it shews that, not- withstandinK the disadvantages of his ear- ly education, he has made good improve- ment in writing. To understand it pro- perly, it is necessary that you should hear the Plaintiff's letter, to which it is an an- swer. I will, therefore, read it, and put it in. "£rRes( TotvK, 26tA Septr. 1825 Dear Sir, I und<'rstand from your wife that in order to compromise the existing difficul- ty between you and her— -but hnd you been in my place at the time, and with the feelings that then occupied my mind, I think you would have a more favourable opinion of my conduct ; but if it has been any injury to your interest or character, in taking her away, I am sorry for it; and as it is her desire to return, my sincera firayer to Almighty Gud is that you may ive in love and good will together, for- getting and burying in oblivion all former conduct. Excuse these detached senten* ces, and judge the feelings of my mind at the moment I remain, Dear Sir, Your well'wlsher, (Signed) SHELDIN HAWLEY." Geohob Ham, Esq. . Ynu see here, Gentlemen, the Plahitiff virtually admits that he had injured the Defendant, by taking away his wife, as he calls her. 'lliat is an admission that he has no cause of action ; but, on the other side, the Defendant has a good caase oS action against him. That will be corro- borated by the testimony of the witness* cs, whom I shall call. 1 might, indeed, safely rest the defence upon the Plaintiff's own evidence; but the Defendant wishes to have his conduct and character fully vindicated before the public. Fur that purpose, 1 shall call a few of his witnesses. But I ought first to observe, that if the Plaintiff had a right to recover any dama- ges, they would be only nominal. He has had the benefit of the services of the De- fendant's wife, which by law belonged to the husband ; and the witness has told you that her sister, Mrs. Ham, was smart, industrious, and economical ; that she washed, baked, sewed, knit, spun, scrub- bed, and did the same work tor her fa- ther, as the witness did. You could not hire such services short of four or five dollars a month. In such a case as this, no plea or notice of set off is necessary. The earnings o£ the wife are by law t« go towards her support, in part, or in full, according to the amount or value of them. Her services paid, and overpaid for her board. The Plaintiff ought to repay the l)efendir% instead of claiming further paymeii' >' "n him. It is very different i I' \ N "^. .. ^ m i nr -:' V \ 16 TRIAL. from the case of a sicklj, helplesi or idle lodger, doing little or nothing, but occa* aioning {;>eat espence. The Flaintiff'e council is pertonallj ac< quainted with you, and I am not; but I am not afraid of his deriving any advan- tage frt.m his personal acquaintance with jrou ; for 1 can place confidence in you as sensible, honest men. So far I have been opposing the Piain- tift'upon his own ground, and considering his daughter to be the Defendant's lawful wife. But io strittness of law she is not As he has chosen to appeal to law, he shall have enough of it. If the conse- quence is disagreeable, he has brouglit it Upon himself. I contend that by the law o[ the land, the marriage of the Defen- dant with the Plaintiflf 's daughter is void ; because the Clergyman, who married themr had no authority todo it. His claim of authority is founded upon our Provin- cial Statute authorising the Magistrates of the Court uf Sessions to grant a cer- tificate of licence, in » prescribed form, to ministers of the Church of Scotland, Lutherans and Calvinists ; but the certi- ficate gtanted to this Clert>yman does not d<>scribe him as a member of the CImrch of Scotland, or Lutheran or Calvinist; but as a Presbyterian, which, I maintain, is not synonimous with a Calvinist. By Calvini>t8, the Statute must have inten- ded a religious sect known by that name, and not merely that the principles or doc- trines of the Clergyman «nd his church •re Calvinistic. Besides, the law requires that one of the parties married shall have been, for six months, a member of the of- ficiatine Clergyman's church ; and neith- er! >e Defendant nor the PlaintiH 's daugh- ter was of Mr. McDuwall's church. On these grounds, I Nhall subinittoyour Lord- ship, that she is not the Defendant's wife, and he is therefore not undpr legal obli- gation to maintain her. The Plaintiif may keep her at home, or marry her to whomever he pleases. It is important to have this point deci- ded, not only for the purpose of the pre- sent action, but aUo that it may be known whether,in case if the Defendant's death, his son or his brother would inherit his estate. The Clergyman, who performed the pretended marriage, is among the wit- nesses, whom I shall now proceed to call; and when you hear their testimony, 1 trust, that notwithstanding the pathetic appeal uf the Plaintiff's cuunsel to yuur feelings and passions, you will feel your- selves bound to fiud a verdict for the De- fendant. Jemtmj Perry, sworn, was present at Mr. Hawley's when Mr. Ham came to take his wife home. He asked her to go ; and she made no objection, only she was not well enough to ride on a horse. Mr. Hawley proposed to him to get a waggon, which he did, and they went home togeth- er. !"e hud a small whip in his hand, but witness did not see hiui flourish it over his wife's head. He said to M r. Hawley, that he was in his own house, and might do as he pleased : saw no improper conduct on Mr. Ham's part : was present from be- ginning to end : did not hear Mr. Haw- ley say he would not let his daughter go back : saw Mrs. Hawley shake her fi«t at Mr. Ham : supposes she was in a fret, be- cause her daughter was going away : re- collects to have heard her say she had ra- ther her d.iughter were in her tomb, than to have married Mr. Ham. Peter Perry, went with Mr. Ham to Mr. Hawley'*, when he went for his wife. He asked her to go home with him. She said she was not well. Mr. Hawley. or some one present, proposed to Mr, Ham to get a waggon: does not know whether he did, or not: did not see Ham flourish his whip over her head. When Defen- dant first went in, after the usual saluta- tions, he asked Plaintiff; if he owed him any thing, on account of his wif4>, and was answered in the negative ; he asked Mrs. Hawley the same question, and received the same answer. Witness thought Mr. Hawley was in a passion : and Mr. Ham also, a part of tlie time : they had some altercation : did nut hear Defendant threa- ten his wife : she gpoke kindly to him, and he to her. Witness is marrit d to De- fendant's sister. Before he was married, recollects the Defendant asked him, if he should make a wedding, and wished wit- ness to do it, and to invite him without inviting his wife, to mortify her family. Mary Perry was present when Plain- tifi'took his daughter away: he told her she must go home with him : she did not appear to wish to go: but he told her to get ready : does not recollect hearing Plaintiff use profane or improper language on t^ie occasion : wlien tlie Defemtant's wife was directed to take down t'ed in his house about nine months or a year ; never knew of any difference between them. The next spring Mr. Hawley took his daughter away. Richard Ham did not hear George say any thinu amiss in the conversation with his wife. 24th Octob -r, 1 825. He offer, d her the bi-st room in the house, and said if it was not good enough, he would build one for her, but he would not sleep with htr. Elisha Shory saw Plaintiff" the day af- ter he took his daughter home ; met them on the ri.ail : hear I Pl.ii ,iift' say he had taken her away, and she should not hve with Ham : he had supported her beforei and could do it again. Job ^yUswurth heard the same in sub- stance as Mr. Shorey. Bev. Hubert MeUowall, being called at a witness, expressed a wi«h to take the oath by holding up h^ hand, in prefer- ence to the ceremony of kissing the book, Thr Solicitor General asked him if he was a Covenanter. The Chief Juatiee observed, the privi« lege of being sworn by holding up the hand is not confined to Covenanters Anv person, who cen»cientiously thinks thai fa the most proper mode of taking an oath, has a right to have it adminiMtered in that form. It is the common form in Scot> land. Either way is equally lawful and binding. Mr. McDowall, being gworn by holding up his right hand, produced his Licence to marry, in which he is described as a Presbyterian, but is not expressed to be a Calvinisf. He also proved his « ertifi- cate of the marriage of George Ham with Hester Hawley. Witness is a Presbyte- rian, of the Dutch Reformed Church, a Calvinist. The Presbyterian Confession of Faith is Calvinistic. The Solicitor General. Were you or- dained by a Bishop i Witness. We are all Bishops; wa make no distinction between Bishops and Presbyters, i was ordained bjr a Presby- tery. The Chief Justice observed that if the witness had been oiduined by a Bishop, he would nut have been a Presbyterian. Witness said that the Defendant's fa- ther and mother both were cominuniranta of his church ; that the Di^fendant atten- ded public worship regularly, as one of his congregation, although not a member of his chun-h,and was marri»-d t>y witness to Hester Hawley, as his certificate pur* ports. The Chief Justice thought there waa sufficient proof of a lawful marriage: but if the Defendant^ Counsel wished to have the point reserved for the consideration of the Court above, he would make a note of it, which, at their request, he accordin|[> ly did. Mr. Hagerman replied. •!**' J M TRIAL. Mav it please tour Lordship, jind Gentlemen of the Jury, The learned CounseI« who ad- dreweil you in behalf of the D>-frndant with bh usuai ability, and motv than his usual seal and confiitcDce, introduced the defence by H fine ruiof^ium upon his client, as a man of xffluenCe, of an unspotted and excellrnt Character in his own neighbourhood and township; I have no disposition to disturb him in the enjoyment of whatever wealth or fame he has honestly acquired ; but you should hear the language of truth. If you do not yourselves know the Defendant, there are many in whose hearing I am now speak- ing to you, who do know that his reputation among his neighbours and acquaintance i^ very diffirrent frotn the fluttering picture drawn of it by his Counsel. 1 fear no con- tradictien in declaring, before the Court and the country, that it is notoriously bad, par- ticularly in respvrt to the subject of this ac- tion. And what stronger proof could there be of baseness and total want of princip'e and honor, than the last and most scanda- leus defence, to which he has had recourse, to invalidate his own marriage, and thus prove his wife a prostitute and his child a bastard ; the son whvm he has brought into court here by his side, to witness this shame- less defence ! What, thtn, must he be him- self, in his own view ! His Counsel has ac- cused us of wishing to make him a brute. He miikes himself worse than a brute, by this desperate attt-tnpt to defend his cause by setting aside h's marriage. The Solicitor General. I took the excep- tion t'> the validity of the marriage from my own opinion of the law, and net from the in- structions of my client. Mr. Hagerman. Whether it originated with hitn, or not, is immaterial. It is urged in his behalf, and with his assent : and it has fixed upon him a mark of infamy, which he can never survive. It is a foul stain, which no time will wear away. I tell him, in the face of the public, that he will rue it to the day of his death. The attempt is as futile as it is base and flagitious. It is foun- ded upon a distinction without a diif rence ; that the certificate of licince granted by the M»gistrHtes to the Clergyman describes him as a Presbyterian, and does not specify that he is a Calvinist. Why, Gentlemen, a Pres- byterian is of course » Culvinist. Calvinism is an ess<^ntial part ol Presbyterianism. The ohjiction is a mere quibble. This Clergy- man'H authority to marry a per^on of his congregation, whether a church member or not, is unquestionable ; and the Dtfendant's marri.-ifte is Irgul and valid ; but his IntHmy is not the less for Httrmpting, although un successfully, to set it aside, for the sordid purpose of avoiding the paytticnt of an hon- est debt. The nature of the Plaintiff's claim wai sarlsfartorily explained in the opening of the case; and the evidence produced in support of it, under all the disadvantages of obtain* ing evidence in such a ease, and in spite of the phalanx of family witnesses on the De- fendant's part, has, I think, established our right of action, on both of the grounds, upon which it is claimed ; the Defendant's ill treatment of his wife, and hit consent t* her separate residence. We have proved, beyond contradiction, that the Defendant chastised his wife with a horse whip, which was an act of violence sufficient, according to my understanding of the law, to justify her separation from him. It is with ngret that I ever differ from the bench. In the present instsnce, howev- er, notwithstanding what fell from his Lord- ship to the contrary, I contend, and think I can shew, that by the present law of En- gland, which is our law, a man is not at li> bcrty to chastise his wife. That h^bs once the law, in days of less refinement and libe- rality ; but i am happy to say it is not so at present. The good sense and humanity of modern times hive introduced a more libe- ral rule fur the treatment of wives. In this opinion, I am born out, not only by the au- thorities read by my learned associate, in hit clear and correct statetnent of the law, bu» more pointedly by one, which I will now read, from the first volume of DIackstone't commentaries, page 444. After mentioning that by the old law a husband might give his wife moderate correction, thisstaiidard com- mentator on the laws of England says," But, with us, in the polite reign of Charles the se- cond, this power of correction began to be doubted ; and a wife may now have security of the peace against her husband, or, in return, a husband against his wife. Yet the lower rank of people, who are always fond of the old common law, still claim and exert their an- cient privilt ge ; and the Courts of law will still permit a husband to restrain a wife of h -T liberty, in case of any gross misbehav- iour." He is merely permuted to restrain her of her liberty, aud that only in a case of gross misbehaviour, 1 his is the mo : his wife. That v^s once of less refinement and libe- happy to say it is not so at ood sense and humanity of ive introduced a more libe- Lreatmcnt of wives. In this rn out, not only by the au- my learned associate, in his t statetnent of the law, but by one, which I will now rst volume of DIackstone't age 444. After mentioning w a husband might give his irrtction, thisstandard corn- laws of England says, •' But, lite reign of Charles the s«- r of correction began to be wife may now have security of her huihand, or, in relum, a it wife. Yet the lower rank are always fond of the old 11 claim and exert their an- and the Courts of law will sband to restrain a wife of ase of any ^ross misbehav rrely permuted to restrain I, aud that only in a case of lur. Klern law of England. A- i'i morterate correction of in early times was allowed, V have security of the peace, 'each of the ptace, an un. :lictat>le ofTcnce, in the same same manner, as an assault wifu against her husband.- }f a wife by her husband is e, and comes wi'.hin the let- the decisions of Lord Ktn- >orough, and Lord Chancel- t is equivalent to turning hi'r constquence of which the ;s chargeable with her ne- Thr rule of law being now establiithrd by aurh venerable names, let us apply it to the facts of the present case. It is proved that the Defendant chastised his wife witb a ri- ding whip ; in plain English, he horse whip- pcd'her ; and, as he himself declared, that was the cause of her leaving him. Does the modem rule of law authorise a man thus to hoi-se.whip his wife i To govern or punish her with the same instrument of brutal force, as he would a horse? To treat her, in short, as a beast of burden i Horse whipping is not only an act of violence, but of Indigniy, and degrailatiiin, incompatible with the harmony and affection which should exist between husband and wife. A horse.whipped wife could not be a companion, a bosom friend, but a mere slave. All mutual comfort, the very end of a iparrit d state, would be defeat, •d by such a slavish, degrading system of discipline. The Defendant's wife, then, had good cause to leave him, for her personat safety i and her father was the proper friend to receive and protect her, until she could have some reasonable assurance et betttr treatment from her husband. Could he in duty and honor do less i Has he done any more? What ohjt-ct beyond that could he have i Men act from motives. Now, let me ask yeu, what inducemt nt the Plaintiff could have to take back his daughter, whom h: had given in marriage, and to burd' n him- self with the charge of her, except for her personal safety i Is there, can (here be, a doubt in your minds, that he acted under that impression, and with that vi>:w i The transaction itself, aid his substquent con- duct, concur to prove it. As soon as there was any rational hope of a reconciliation, he united with his daughter in taking the most conciliatory and even condescending sttps towards so desirable an accommodation. What, on the other side, has been the uni- form conduct and declaration of the Defen- dant ) He has shewn no cause for his aver- sion to his wife, but his own ill humour, and his ill treatment of her. In most family dif- ferences, each party, even the most Innocent, is chargeable with some fault. But what fault, through the whole of this unhappy dif- ference, has the evidence attsched to the injured wife? None. Yet in 1814, or 15, toon after the separation, he avowed to the witness Simpson bis determination not to live with her. Three or four years ago, he de- clared tn Miss Hawley. that he would not receive his wife, even If she should come up- on her knees to him. For this he assigned fio reason ; and none can be found, except his notorious ill treatment of her, and his libertine love of variety. He was not wil- ling, it appears, to be confined to the em- brace of a virtuous wife. He chose to range at large, to indulge Ins licencious appetite with other women, and scatter \\U illegiti- mate children about the country. For proof of this, we need not resort to the public no- toriety of facts. It it proved by his own un- blushing admission. He has even gloried ia his shame, and boasted of it to his unoffen- ding wife, and that too at the very titie when the was seeking for a reunion, in the most conciliatory and condescending manner. Hit conduct and language at the interviews with her in S -ptembcr and October, 1835, were congenial with his character and his prin- ciples. By insisting on degrading and Inad- hiisslble conditions of her reception, he refu- sed to receive her. He taunted, insulted and drove her away. I will not go through the particulars of that disgusting scene. Gen- tlemen, what thittk you uf his telling her he had a very pretty sweet-heart in Montreal } that he had a number of brats about tha country for her to take care of, if she should live with him ; and that he would reserve a right to be visited in his own house by hit mistresses? VVIist inference are you to draw froiTi bis proposal to his wife to have another man sleep in the tame bed room with theni i Is there any one who now hears me, whose blood does not boil within him at such a proposition ? Whose soul does not re- volt at the cold blooded brutality of the man ? He must have had one or the other of two objects in view. If she rejected the offt-r, as she (1i I with silent indignation, he would say it was her own fault that she did not stay and live with him. If she submitted, what then was to follow f Gentlemen, you have per- haps heard of an atrocious occurrence oear the Napan>-e mills. One John Clark (I sup- pose you all know him) induced an ignorant, unfortunate female to consent to be married to a man then living at his house. The wor- thy John proceeded to join the parties in ho- ly wedlock; and the day, with its festivities, being over, the happy couple retired to bed. As was concerted before between the bride- groom and Clark, the former, as soon as hit dupe fell asleep, got up, and left the room » f 'W minutes, and Clark took possession of the bedt The bridegroom immediately re- turned, and afTc'cted to discover that his new- ly married wife was false to him ; upon which the marriage was declared void. Gtntle- men, do you think that Mr. Ham, with the knowledge of a stratagem just suited to hit ideas of right and wrong, would not avail himself of so good an opportunity as his wife's submission to his proposal would give him, to rid himself of her for ever? Gentlemen of the Jury, my learned friend has told you, that I am better arquiiinted witb you, than he is. I believe I am ; and I am proud of it. Had he known you at well as I do, and had he known the general opinion and feeling of the country around his r.lit nt, he would not have referred you to Mr, Ham's reputation among them. A Jury from that vicinity, where the parties are known, and thu cause in all its bearings it -*^;», / /■■ ■>■ ' •**« ii - I \ '■if i k\. f ^^.r- TRIAL. wril uiiiierato^ili would fiud a verdict aguinit him withont Ivxriug the box, and wouiit ul- tow tbr Plaint ffthf full amount of hU claim. We havr not only proved (ht Urfendant'a ill treatment of hi* wifi , amuuntiii|c lo a lurn- ing of hrr out of (rtoon, and 8Te is proof, umier hitown hand, of his most i;irei land t^xpliiii tons, nt to a pait of it. The Plaintiff, there- fore, has a rijtht to yeur viriiici, c^ riainly for one moti'h's mainti naiicc of iht DtlVn- dant'it wife ; and I trust you^ill be Sdti>ti-d that he is enftUd to a fair allowance for the whole term of h' r rtsiflence with him, wUiih i* proved to hnv' been twelve years. All tbattime he has fu.i)i.,lied htr with »u h sup- port as his own circumstances ptimiitLd, and th>- rank and circumstances of the I)e> fendant r< quired. Any benefit d« rived from the services of the Def ndani's wife is not to be taken ii.to account in this action, bt cause the Dftn- dant has brought his action agaiist the pre- sent Plaintiff, for < epriving hi of the ser ♦ire ot his wife. The daraagLS are tmi -c ly Within your coatritl. lu dttcroiiuitig the a- mount. I have full cunfid< nee that yuu will do juNtice to thi Plaintiff, and I ask no more. The Chief Jtulite slated the ease to the Ju- ry, • xplained to th> in the grounds on which alone the action could be suppoit.d, and gave them a virw of the law, as exprrMed in his decision overruling the motion for a honxuit. He rrpeatcd his opinion that a hus- band may lawfully chastise his wife ; but il must l>e a iiiodi-rate and reasonable corr<-c- tinn, not rrui'l and outrngenus. He read hia no'es of the testimoay of the witnesses on both sides, and co'nmented on the evidence, H<- thought there was no proof of any ences- sive or violent chastisement of the Defen- ilani's wif ,'of anj beating that endangered Her lifr, or made it necessary for her to leave her husband's house, and stek protection al her father's. H' did not see any sufficient evidenre pf the Defendant's consent to the separate inrsidence of his wtf, unlesa It waa rontained in his letter dated 36'ii September, 1H35, in which ht inform' d the Plaia'iff that he let her return until the 24th of the next month. Hf It ft it to the Jury to drcide whe* thrr, taking the whole Utter together, that amounted lo a consent, on his pan, to the se* para'iju during that month. It they thought it dill, he dirertf d them to find in favour of the Plaintiff for that month's maintenance of th* wife, and no more. otherwUe, to find a verdict for the Defendant. The Jur^ brought in a verdict in favour of the PlHiutiff fur two pounds ten shillingt damages; and tin Juilge, on motion, granteij a Ceitficate for full costs. At the ensuing Michaelmas Term, the Defendant's Counsel moved thf Court to set aside the verdict, and, enter a Nonsuit, upoa the point res) rved at the triftl ; but th> Court overruled the motiuo, apd (;avie JudgoscDt for ihe Plaintiff. 4 \\ t A t\\