At the assizes of Wexford, while I was but young at the bar, I received a brief in a cause of Sir R—— M——, Bart., against a Mr. H——. On perusal, I found it was an action brought by the baronet against the latter gentleman respecting his lady, and that I was retained as advocate for the lady’s honour. It was my “first appearance” in that town. But, alas! I had a senior in the business; and therefore was without opportunity of attempting any display. The ill-fated Bagenal Harvey[[30]] was that senior counsel, and he had prepared himself to make some exhibition in a cause of so much and such universal excitement. I felt dispirited, and would willingly have given up twenty fees to possess his opportunity.
[30]. An unfortunate friend of mine who was afterward hanged, and his head stuck over the door of the same court-house.
The cause proceeded before Judge Kelly: the evidence of Sir R—— M—— was finished, and the proper time for the defence had arrived; every thing as to the lady was at stake. Bagenal Harvey had gone out to take fresh air, and probably to read over some notes, or con some florid sentences and quotations with which he intended to interlard his elocution. At the moment the evidence closed the judge desired me to proceed. I replied, that Mr. Harvey, my senior, would return into court directly.
Judge Kelly, who was my friend, said he would not delay public business one minute for anybody; and, by a sort of instinct, or rather impulse,—I cannot indeed exactly say what it was, but certainly it was totally impromptu,—I began to state her ladyship’s case. I always had words enough at command: the evidence afforded sufficient material for their exercise; and, in fact, being roused by the cause into a sort of knight-errantry, I felt myself completely identified with it. If I should succeed, it would greatly serve me. I forgot poor Bagenal Harvey, and was just getting into the marrow and pathos of my case, when the crier shouted out “Clear the way for Counsellor Harvey!” Bagenal came in, puffing and blowing, and struggling through the crowd—scarcely able to command utterance. I instantly stopped, and begged his pardon, adding that the judge had said the public time could wait for nobody! “So,” continued I, “let me just show you where I left off! (turning over the leaves of my brief:)—there, begin there—it will be useless to repeat what I have already said; so begin there.” A loud laugh succeeded.
Bagenal, though generally very good-tempered, became irritated as much as he was susceptible of being, and whispered me that he considered it a personal insult: while old Judge Kelly gravely said, “Go on, Mr. Barrington, go on! we can have no speeches by dividends: go on, sir!” So on I went, and I believe, (because every body told me so,) that my impromptu speech was entirely successful. I discredited the witnesses by ridicule, destroyed all sympathy with the husband, and interested every body for the wife. In short, I got the judge and jury into good-humour. Yet, I know not that I should have ensured a verdict, had not a certain point of law, which I believe was then started for the first time, occurred to me; and which, though rational in itself, and on that trial recognised by the judge, has since been overruled in terms, though it stands in substance;—namely, if a husband cannot truly aver that he has sustained mental injury by the loss of that comfort arising from the society of a wife, it is anomalous to say he has any claim to damages; and this averment can scarcely be made where the parties have been separated voluntarily and completely for years.[[31]]
[31]. This is, indeed, altogether a species of action, placing a price upon dishonour, maintained in no country but England (a money country). Why not transfer the offence to the criminal side of the courts of justice? All the rest of Europe ridicules our system. The idea entertained on the continent upon such occasions is silence or death!—if not the most lucrative, certainly the most honourable mode of procedure.—An affectionate husband cannot be recompensed by any thing, and a rich seducer cannot be punished. But if the gentleman was to be sent to a tread-mill, and the lady to solitary confinement, adultery would soon be as much out of fashion as it is now the haut goût.