1769. A true Picture of the Viciffitudes of Fortune. man. To the AUTHOR of the LONDON MAGAZINE. SIR, 619 What was at first only natural prejudice in favour of a pleafing, loon became the admiration of a mot amiable woman. He difcovered too much of her principles to attempt to ask her to admit of his vifits, but he took care, in a day or two, to intro I Will apply to you for judgement induce the wife of a relation to her ac a cafe of a very fingular nature, though I at the fame time honestly confefs, that, however I may be pleafed, or flattered, by finding your fen. timents agree with my own, I cannot pay you the compliment to fay it is poffible to alter mine, if I should dif cover the contrary. My father died when I was quite an infant, and left my mother not only in indigent circumftances, but in an unhappy state of health. Her relations found out that he had brought all her misfortunes upon herself, by marrying a man of over nice principles; (for it was by paying his father's debts, and being too good-naturedly bound for thofe he called his friends, that had reduced him to difagreeable circumstances) confequently were but little difpofed to relieve her. As all reflexions upon a memory fhe held most dear, was feverer to her heart than any other calamities, the quitted the country where the bad known fome little affluence, and with me, young and helplefs as I was, came up to London, where, by painting and embroidering, the picked out just fufficient to answer the common demands of existence. When the had been fome few years in this fituation, a flower piece from its extraordinary execution obtained her no finall reputation. A gentleman of confiderable fortune was the purchafer, and being curious to know the artist, was at length directed to our neat, though bicure lodging; and very politely excufed and accounted for his conduct. My mother was then only in her twenty-seventh year, with an elegant perfon, and engaging mangers; the had all the proper reserve of her fex, without affectation or incivility; and as the gentleman expreffed his furprize at her abilities having been fo long concealed, the ingenuously acknowledged it was owing to her own industry, and flightly touched upon her motives. quaintance, whom he rendered the instrument of many generous purposes. My mother had not the smallest idea of his views; all vanity extin guifhed, the little thought herself capable of attracting admirers; 'he however found an opportunity, when he had fecured her good opinion, to make her a moft genteel offer of his fortune and heart. Her furprize was fo great, that, for fome time, the was unable to reply; but, on recovering herself, affured him, that he would ever retain a grateful sense of the high compliment he paid her, though it was utterly incompatible with her notions of propriety to avail herself of it. This was no more than he had prepared himself for; he therefore had alfo prepared an unanswerable plea. Confider, my dear madam, said he, what is to become of your beloved child, if you should be taken from her: your induftry and œconomy have hitherto infured her a provision, but neither that industry, nor that economy, can infure her a provifion beyond your life; if you can accept of me for your friend and husband, five thousand pounds fhall be immediately fettled upon your little Fanny; nor fhall the experience a tenderness from you, which shall not be so far equaled on my part as to prevent her ever diftinguishing between the tye of nature, and the tye of friendship My mother was greatly diftreffed : a too clofe application to painting feemed to threaten her conftitution with an early decay, and to let the object of all her folicitude Tuffer in an essential point on whatever felf motives, the conceived the highest cruelty and injustice; he nevertheless delayed her compliance until the was pronounced in danger, and gave me a father, only one fix weeks before the funk into the grave; and fuch a father was never known: my happinefs, my convenience, was all the ftudy of his days; yet fuch is the weakness of human wisdom, that the 620 An unhappy Marriage very measures he pursued to effect thole generous purpofes, were the very measures that deftroyed me. A deep fcheming man, of no fmall eminence in the city, had long enjoyed an abundant fhare of his appro bation. He had feen me feveral times, and, as the friend of that father I fo much loved, had not the moft inconfiderable thare of my attention: our ages were in no degree equal; our difpofitions wholly diffimilar; notwithstanding which, he thought pro. per to make choice of me, and my poor mistaken father determined my fate, by elpouling his intereft; and three months intimacy precipitated me into a wife. I was married in Auguft, and the fpring following beheld my husband a bankrupt, and me once more dependant upon the bounty of my father he pitied, he fympathized with me: he indeed could not condemn me; and, kindly entering into my husband's affairs, faw them fpeedily accommodated; and we again embarked in commerce. But there were many referves that did not reach my father's knowledge; there was a fecond family to provide for, and a ftill more expenfive one than mine. Four years, however, did we totter on the verge of deftruction, before we were plunged down, never more to rife. termined for him to attempt to encumber it. The good-natured world faw things in a very different light, and joined with him in condemning the first principle of nature, felf-prefervation. The husband was held forth as injured, whilst the injuries the wife and children had experienced were forgot: I was an unnatural wretch, had taught the most unnatu. ral of leftons to my offspring. I fpurned a returning, a penitent husband; they, an intreating, an affectionate father. What is your opinion, fir? Could I receive to my bofom a man that had evinced his difregard for every moral tye? Had he not deceiv ed, abused, and neglected thofe that ought to have been most dear to him? Nevertheless I entered into terms, voluntary terms, with him, to foften his difficulties; in the fame moment that I acted this hardened part, I added thirty pounds a year to a little income a diftant relation had affigned, and wifhed happiness in his late quitted obfcurity, to which, thank Ĝod, he is fafely and quietly returned. I will only, in the language of Zanga, address the bufy world, and warn them, if they think my deeds inhuman, not to judge fuperior beings, fouls made of fenfibility, with whom though to forgive is known to them, cannot unite themfelves to the practifed deceiver, the cold ftone villain, I am, fir, Your humble fervant, Lord Chief Justice PENELOPE. Charge to the My father caft off the wretch that had deceived him, but moft kindly protected me and my poor children. His fortune was greatly diminished by bad management, and unavoidable loffes; but all he could part with was ours; and I was by his means enabled to give my boys a proper education, and devote myself to the cultivation of my girl's mind. Twenty years paßled away, my boys were both ad-w vantageously fituated, and my daughter happily difpofed of to a worthy young fellow, when my father died, and died, as generous and affectionate to me and mine, as he had lived. Some perfon or other conveyed the intelligence of my fituation and circumftances to the ear of my husband; who, though he had for twenty years neglected every tender enquiry, with relpect even to his infants, now boldly made me a visit, in order to rob me and them of our support; but I was not to be duped: my annuity was happily fecured, and I appeared too de 2 W, Efq; is plaintiff, and the Right Hon. G MD-, Eof H, is the defendant. It is an action of trefpafs for falle imprisonment, brought by the plaintiff'; it is in the form of a declaration, for breaking and entering his dwelling-houfe, and there making a noife and distur bance, breaking open locks, and taking away his papers, and likewife for falfely imprisoning his perfon feveral days in the Tower. The fubftantial part of the claim in this action is for feizing his papers and perfon without a legal authority. Gentlemen, to this declaration, the defendant has pleaded, he 1769. Charge to a fury on a late popular Trial. he is not guilty of the fact; and the whole matter to be tried in this action is, whether he is guilty or not guilty, in order to affefs fuch damages as you thall think proper. It has been proved, over and over again, and there is no manner of doubt, that the im. prifonment was illegal, and likewife the feizing of the plaintiff's papers. It comes now fingly before you to affefs the damages, which you think the plaintiff ought to recover under all the circumftances. The plaintiff has called feveral witneffes to maintain his cafe fet out in his declaration. On the part of the defendant, it is admitted, and fo it most certainly appears to be to every body that ever heard a caufe, that the warrant whereby the plaintiff was imprisoned, and his papers feized, was an illegal warrant; it has undergone the confideration of this court, and likewife of the court of King's Bench, and has been deemed illegal, and very properly fo, by every judge who has feen it, therefore it is impoffible to justify it, and there is no pretence or foundation for the defendant in this caufe to make any fort of stand against this action, by way of juftification, in the way he has done, because it clearly and manifeftly is an illegal warrant, contrary to the common law of the land; and if warrants of this kind had been reckoned legal, I am fure, as one of the plaintiff's witnesses obferved, it is extremely proper for the authority of this kingdom to interpofe and provide a remedy, because all the private papers of a man, as well as his liberty, would be in the power of a fecretary of ftate, or any of his fervants. The law does not make any difference between great and petty officers; thank God, they are all ame nable to justice, and the law will reach them, if they step over the boundaries the law has preferibed. Gentlemen, it is material for your confideration, that this warrant, in the form of it, is illegal; yet ftill it is not a warrant of their own original framing, it was in conformity to many precedents in their office, from the time of the Revolution. About the 3d or 4th of James II. there had been warrants of the fame fort in the office, which were directed in the fame form, and therefore the ufe made of this evidence is to try to take off a great part of the imputation Dec. 1769. 621 of malice, which has been attempted W S was As to the warrant, I have faid enough concerning the illegality of it; it comes then to be rightly and truly nothing more than this, that this gentleman has been imprisoned falfely by an illegal warrant, without a proper authority; that he has been kept in cultody from Saturday the 30th of April to the Friday following, and then fet at liberty by this court; he was confined seven days before he was difcharged, and he has had his papers taken away by force likewife, by this illegal warrant; and therefore, you are under all thefe circumstances to affert and affefs the damages, you think he ought to recover for this feizure of papers and falfe imprisonment. You all very well know what vaft deference I always pay, and ever will, to that part of the office of a jury which properly belongs to them. I never did, nor ever will, while I have the honour of executing the office of a judge, attempt to control or influence the minds of a jury, in respect to damages, but fubmit to them fuch obfervations as occur to me upon the evidence, but not by way of controling them: I dare fay, I have faid the fame an hundred times, and as the gentlemen at the bar have industriously avoided, upon both fides, pointing at any particular fum you fhall give, I will as induftriously avoid pointing at 4 K it 622 Lord Chief Justice it too, and leave it to you to judge as you fhall think proper. In regard to the law, I have always been as tena. cious of the proper function of a judge, as I have been of the jury. When a question comes before me upon a point of law, I fail always take an opportunity when the jury are not to interpofe in it, to explain it to them, and with regard to facts, I fhall take them as I take the law: that being the cafe, you are to take all the circumstances of this caufe into your confideration; there is another reafon why I will fay very little more to you than what is my duty, which is, that when a fpecial jury of the first rank of people in the country appear to try a fact, there is not fo much neceffity for a judge to defcant upon the nature of a caule, as there is to an inferior rank of men, perhaps, not fo well acquainted with, nor fo properly qualified to balance fuch a caufe as this. There is another thing I fhall mention to you, which is, that no prejudices, of whatfoever kind, fhould inAuence you; it is my opinion, you all come here as unprejudiced and dif paflionate to try this caufe as I myself do, and therefore all things faid out of doors, all papers and pamphlets, and every thing either in writing or converfation, are always in the adminiftration of juftice to be totally laid out of the minds of judges and jury; they must be blind, deaf, and dumb to every thing but the evidence before them; they must divest their minds of whatever papers may influence them; I speak for myself, I have not read three papers about it, and I never do about any thing; I keep my mind free for every thing that may come before me of that kind: to be fure, there has heen, with regard to the plaintiff, a neceflity for me to read and look into the law; with regard to any thing elfe, I never fuffered myfelf to be biaffed or affected by the reports or reading of fuch papers or pamphlets, as are wrote with an endeavour to pervert justice. Much has been faid upon both nides, which does not particularly apply to this caufe; in direct terms, it is the evidence, and the propriety of what arifes necefiarily and immediately from the evidence, that you are to orm your judgment upon. Now, gentlemen, in the first place, it appears moft clearly that the plaintiff has been taken up unlawfully, has been imprifoned feven days, has bad his papers rifled, examined, and seized, that thofe papers have been likewise improperly and illegally taken notice of, and by the letter that has been read to you, it appears that fuch of them as could not tend to prove the charge against him would be returned, and fuch as would prove him guilty would not; that he has had these papers taken from his houfe without the leaft pretence of right whatever. As to the declaration, gentlemen, that is nothing in regard to breaking locks and doors, and all thefe kinds of things; they are only formal words; the damage upon them is nothing; the damage is for the unlawful imprisoning him, and taking his papers without a proper authority; and there has been a moit plain, grofs injury done him, and it is plainly and grofly a violation of the jaws. You are not, in afferting the damages, to turn your eyes upon the broken locks and doors, mentioned in the declaration; the spirit of the thing is for feizing his perfon, and confin ing him feven days, and for unlawfully keeping his papers. Another fact is proper to be confidered; the manner of doing it; it has been proved to you, that, with regard to fending him to the Tower, and committing him clofe prifoner, there has been an order in the warrant directing him to be kept clofe prifoner; there has been a direction given by Lord E-, in the defendant's prefence, a verbal order, not to admit any body to fee him, which is a thing extremely unlawful. There is another thing mentioned with regard to the change of cuftody; as to that I own there does not seem to me to be that difference contended for; it appears that the plaintiff was taken up and brought to the defendant, and that there was a Habeas Corpus applied for,but then it was applied for improperly, and therefore cannot be confidered as evidence before you. I do not fee (but that must be for your confideration) that any manner of oppreffion from the changing the caftody, appears from the evidence before us. It does not appear that the fecretary of ftate knew that the Habeas Corpus was applied for, before the warrant for fending him to the Tower was pre pared 769. 623 the first iffued out of his office, it would have been a prodigious aggravation, but you fee from the evidence, that has been laid before you, that there has been an illegal courfe of office established from before the time of the Revolution to this time, that it has been animadverted upon in the feveral courts of justice, and these kinds of warrants have been flued; and, therefore, whatsoever error this gentleman may be guilty of, it must appear he was a gentleman not acquainted with the law, and adopted this ftrange rule; if he has erred, he has erred with all the fecretaries of state from that time. In regard to this, it has been adopted by thofe who have been as great friends to the laws of their country as any men could. The fe On a late popular Trial. pared and figned. It does not appear That they knew it, from any thing I can fee; they beft know whether they did or not. There was fome hurry about it, but I do not fee any thing has been proved of any intention to opprefs the plaintiff, because they did not know, at the time they figned the warrant, that the Habeas Corpus was applied for; there mult be fome miftake about that, as it did not come to the defendant's knowledge. You know very well I never give myfelf the li. berty to inforce words, but give them you precifely; you are to confider the evidence, and to judge whether or not you think that this cuftody was changed by the fecretaries of fate, with an intention to injure the plaintiff if fo, it would be aggravation of the illegal treatment. As to his being ill-treat-cretaries of state are not bred to the ed, upon my oath I cannot fay I fee any fort of ill ufage; there does not feem to be the lealt ill ufage defigned him; there does not feem to be any aggravation arifing out of this matter. Upon the contrary, according to one of the witnefles, the plaintiff faid the defendant behaved like a nobleman, and he should always refpect him for it; upon the evidence I do not find that change of cuftody was meant as an aggravation. Now, gentlemen, with regard to the proof before you, as I told you before, you are the only proper judges; as to the giving thefe orders, and the conftruction of them; it must be obferved, that as foon as it was known that his friends were not to fee him, Mr. W did endeavour to rectify it. It appears upon evidence, that, from the beginning of his know ledge of that tranfaction, he took all the pains he could to rectify it, and get the verbal orders relaxed, upon which he applied to the defendant, and he fent word that the plaintiff's friends might fee him; but as to the behaviour throughout, it is nothing at all to this caufe, as they had not a proper authority for detaining the plaintiff, therefore the point for you to confider is, whether the evidence that has been laid before, on the behalf of the defendant, does not, in a great meafure, draw out the iting of this warrant. With refpect to the warrant, if the defendant had invented this warrant himself, if it had been law, and find in their office a course of General Warrants. Surely it would be a most unneceflary act of injustice to confider, and to treat this as an unprecedented act of oppreffion; it would be unjuft, because there is a most effential and material difference; and you fee further, that even when thefe gentlemen did start at the warrant, that the law officer, that is, the folicitor of the treafury, there prefent, faid,That is the courfe of office; it has always been granted fo; we are right in the thing; I will confent to no innovation." Has there been here any intention of this noble lord to fubvert the liberty of the people? From the evidence there does not appear to be any fuch intention. You find he applied, from time to time, to the lawyers of the crown, and referred to them, and fent to them upon every thing that happened, for their direction: and the fecretaries were both very defirous of doing right, and acting according to the direction of those that are beft able to advise them; therefore I fay, that is a material part of this caufe in extenuating, or diminishing the damages which the plaintiff must recover in this action. With regard to the words claje confinement in the Tower, it appears, that, even for libels, it has been ufual to infert these words. It clearly does not draw that part of the fting of the cause out, because the secretaries put their own construction upon it; they accompany it with verbal orders that they 4K 2 should |