THE BERKELEY AND FRASER AFFAIR.

THE preceding article (a review of "Berkeley Castle, a Historical Novel, by the Hon. Grantley Berkeley”) appeared in Fraser's Magazine, for August, 1836. On the 3d of December, in the same year, in the Exchequer Court at Westminster, before Chief Baron Lord Abinger, and a special jury, came off a trial at common law, Fraser v. Berkeley and another. The declaration stated that "the defendants [Grantley Berkeley and his brother Craven Berkeley] assaulted the plaintiff, and bruised and wounded him with their fists, and afterwards with a whip." The defendants pleaded not guilty. The case excited considerable interest from the rank of the defendants, and also from the high literary character and political influence of the periodical of which the plaintiff was publisher and proprietor.

Both parties had engaged some of the ablest lawyers at the bar. Messrs. Erle, Kelly, and Talbot appeared for the plaintiff; Messrs. Thesiger and Crowder for the defendants. The facts of the case, as stated by Mr. Erle, and fully proved in evidence, were as follow:

Grantley and Craven Berkeley, both born after the marriage of the late Earl of Berkeley to Mary Cole, his mistress, were members of Parliament for West Gloucester and Cheltenham, respectively; were officers in the army; were county magistrates, and were brothers of the Earl of Berkeley and of the notorious Earl Fitzhardinge.

On the 3d of August, 1836, the two Berkeleys sallied forth, on a hostile expedition against Mr. James Fraser, whose publishing office was at 215 Regent street, one of the most public, crowded, and fashionable thoroughfares of London. Grantley Berkeley was armed with a heavy horsewhip, the butt or handle of which was loaded with lead. Fully to understand the manliness of the following proceeding, it should be borne in mind (for it was repeatedly given in evidence on the trial) that Berkeley was a tall, powerful, active, heavily-built man, over six feet high, and a practised pugilistic amateur, while Fraser, below the middle stature, was slight in figure, greatly inferior in strength, and, in fact, in such delicate health, (as his appearance showed,) that the constant care of a medical man had long been indispensable.

The Berkleleys entered Fraser's shop, at midday, the precise period when all his assistants and other persons he employed in his business, had gone to dinner. Fraser was alone, therefore. Craven Berkeley stationed himself at

the door, within the shop, so as to prevent their intended victim from escaping, or any assistance or protection being supplied from the street. A third party, not identified, but of inferior rank to the Berkeleys, and generally believed to have been a pugilist hired to assist them and watch until Fraser's people had gone out, stationed himself outside the shop, standing between the door-posts, with his face towards the street. Up to this time, Mr. Fraser was wholly unacquainted, even by sight, with either of the Berkeleys.

Having thus placed an inner and outer guard upon and within the shop, so as to prevent interference from other parties, Grantley Berkeley advanced to Fraser, spoke to him, (to ascertain his identity,) and then, without notice, struck him a blow on the right temple, with his clinched fist- -a blow so violent that it felled him prostrate on the floor. When Fraser, nearly stunned by this fierce and unexpected attack, endeavored to rise, his assailant struck him down again, and then, when prostrate, laid hold of his collar with the left hand, while with the clinched fist of his right hand he continued to strike him about the head, face, and every part of his body which came within reach. Then, changing his weapon of torment, he seized the whip with which he had come armed it was not an ordinary hunting-whip, but one of weight and substance, such as rough riders in the army use for the purpose of taming unruly horses and taking the small end of this whip in his hand, repeatedly struck Fraser (who was still on the ground, senseless and stupified) with the butt end of it about the head, back, and shoulders. It was stated in evidence that this butt end was loaded with lead and bound round, on the outside, with iron wire. He continued to strike until Fraser's head was laid open in several places. Then while the victim - bleeding, unresisting, senseless was still lying at his feet, Berkeley took the whip by the handle and commenced striking him with the lash, the first blow fetching blood from the temple down to the chin. The marks of this particular cut, it was deposed, continued visible for more than a month. The blow caused such keen pain as to restore Fraser to some degree of consciousness, and his first natural impulse was to raise his hands to cover his eyes. It was fortunate that he had done so, for the next blow cut his right hand across the back, through to the bone.

While this savage scene was being performed — and it was nigh to as a tragical a conclusion as ever was simulated on the boards of a theatre — persons passing by Fraser's shop, recognising the hired bully and ruffian at the door, became aware that something unusual was proceeding within. Fraser's shrieks, on being restored to consciousness by the agony of keen pain, caught the attention of passers-by. A crowd collected in front of the shop, and a person named Samuel Braine, impelled by the impulse of humanity — having seen, through the window, that a man was lying on the ground, while another man was standing over him, violently striking him with a whip about the head and shoulders-rushed to the rescue. But a powerful ruffian stood outside the door, with his arms across to prevent any one from going in. The moment that Braine, calling out, "Gracious God! he'll kill the man; let me go in, or the man will be killed," attempted to enter, the street-ruffian

struck him on the collar-bone and knocked him down. Picking himself up, Braine rushed on, struck up the bully's extended arms, and got inside the shop. Immediately within it, close to the door, stood Craven Berkeley, who called out, “Give it him, Grantley! Damn him, give it him well!" At this moment, Fraser had staggered up upon his legs, and Grantley Berkeley, who was behind him, had a hold of him by the hair of his head, lashing him all the time with the whip on the face. Fraser was so placed, that even if his strength were not thoroughly exhausted, he could offer no effectual resistance. He was bleeding from the temple to the chin. Braine indignantly accosted Berkeley with these words, "How dare you use the man in that brutal, savage manner?" But the remonstrance was useless. Whereupon Braine seized Berkeley by the arm and around the neck, to draw him off, and a struggle ensued, in which both fell to the ground. Fraser, thus liberated for the moment, flew to the door, to get into the street, but was struck back into the shop by Craven Berkeley. On this, Grantley Berkeley laid hold of him again, by the back of the neck, dragged him into the middle of the shop, there entwined his hand in his hair, and struck him again over the head and face with the horsewhip. Finally, Fraser succeeded in getting into the street, and as he was turning to enter the side door which led to his private residence, Grantley Berkeley again fell violently upon him with the butt-end of the whip, saying, "Damn you, I'll cut your blasted head off!" One of the crowd then laid hold of the whip, and, for the first time, the cause of this series of savage assaults was stated― Grantley Berkeley declaring to the crowd that "Mr. Fraser had offended a lady, and that he was serving him out for it." What manner of "lady" she was, has already been related.

The two Berkeleys were then walked off to the nearest police-office, about a hundred yards distant, the accompanying police not venturing to lay hands on two such exalted gentlemen—"Honorable" by birth, as sons and brothers of Earls; officers in the army; magistrates, and law-makers, as members of Parliament. There the charge was heard against them, and they were held to bail.

The hired bully whom they had planted in the street, as outer guardwho knocked down Braine, because he attempted to gain admission — who endeavored to quiet the spectators by coolly telling them that Mr. Berkeley was only seeking redress for a “lady" who had been abused who walked by Craven Berkeley's side, in close and confidential conversation with him, en route to the police-office — who remained in the office while the charge was being heard — wholly escaped. Braine, whom he had knocked down without the shadow of provocation or justification, vainly endeavored to have him taken into custody for this assault. The police, seeing him the ally of the Berkeleys-magistrates, members of Parliament, peers' sons and brothers declined doing so!

Poor Fraser, the victim of this conspiracy and assault, found his way into his private residence — wounded, bleeding, prostrated in mind and body. He was immediately seized with convulsion fits, which were thenceforward of frequent occurrence. It was a month before he was able to leave the house,

in order to go to France for the benefit of his shattered health, and even then (it was deposed) the marks on his face were all to be seen. The attack was fatal to him. The few remaining years of his life were years of pain, suffering, and prostration. He was compelled to retire wholly from business, and especially from the conduct of the Magazine which still bears his name. He died, in October, 1841, and even The Times, careful as it is in speaking except on sure grounds, announced that his protracted illness was believed to have been brought on by the attack of Mr. Grantley Berkeley.

What occurred between the author of the critique on Mr. G. Berkeley's novel and Mr. Berkeley himself will be found (the proper place for such a record) in the Memoir of Dr. Maginn, which I have prefixed to this volume.

Mr. Fraser's only resource against the Berkeleys, his brutal and cowardly assailants, was by bringing them before a court of law :- it is probable that "Honorable" as they were, they would have refused him "the satisfaction of a gentleman," had he demanded it, on the plea that he was "only a tradesman." There were two causes, however-and very strong ones

why he did not seek such a remedy as this. Mr. Fraser, a conscientious Christian, had religious objections to such a step, and, even were he free to adopt it, his assailants had half-murdered him, so as to render it physically impossible for him to meet them in the field, as Dr. Maginn did.

At law, two courses were open to Fraser :- either to indict Grantley Berkeley and his ruffian-brother in a criminal court- and it was regretted, when too late, that he had not done so, as conviction was inevitable and the punishment must have been severe-or to bring a civil action, in nisi prius, for damages, the amount of which should be determined by a jury. As already mentioned, the latter course was adopted. At the same time, to save appearances, Grantley Berkeley brought an action for libel against Fraser-having already nearly murdered him on account of such personal

libel!

No denial of the facts of this case could be made or was attempted by the counsel for the Berkeleys. The cross-examination of the plaintiff's witnesses was very slight - because nothing could weaken the plain and decisive evidence which they gave. Mr. Thesiger, who replied for the defendants, very ingeniously admitted that the assault had been committed-" but that they did it under a strong and over-ruling provocation, which in a considerable degree justified their conduct." In plainer words, that Fraser, as publisher of a magazine, in which had appeared an article very satirical upon, and very displeasing to, Mr. Grantley Berkeley, might have prevented the appearance of that article, and was answerahle for all the consequences of not having done so. It was contended that Fraser's Magazine had exceeded fair criticism on the book called "Berkeley Castle," by following him into domestic life, and there reviling and calumniating him - that it was unfair to allude to the fact of the bad character of "the mother of the Gracchi" [the Berkeley brothers] that such allusion was probably intended to lead to an assault and that a further justification was the critic's doubt whether, in and out of

his book, Grantley Berkeley was a pure-minded gentleman.-That a critic had a full right, when noticing a novel of much pretence (in which the author proudly refers to his honorable and noble descent) to allude to notorious facts of the said author's own mother having notoriously violated feminine propriety, was contended, per contra, by Mr. Erle, for the plaintiff; also, that a novel, once published, is public property, and liable to public comment; that "Berkeley Castle" deserved the sharp sentence critically passed upon it, particularly for the indelicacy of some of its opinions, expressions, and incidents; that (as indeed happened) Grantley Berkeley could readily have obtained any required "satisfaction" from the author of the critique; that the publisher of a work, which he most probably had not read in manuscript, was not to be held answerable for it in his body, almost in his life; and that the assault was unjustifiable, cowardly, brutal, and nearly murderous. After being charged by Lord Abinger (the judge) to the effect that if death had followed from this assault, the Berkeleys would undoubtedly have been held guilty of Murder, and that they had not the slightest justification for their brutality; and that, having brought an action against Fraser for libel, Grantley Berkeley ought not also have taken the law into his own hands, ("taking his revenge both in person and purse")—the Jury returned a verdict for the Plaintiff - damages, One Hundred Pounds. This amount was very much beneath what was expected. The cross-action for libel (Berkeley v. Fraser) eventually ended, without trial, in a verdict for plaintiff (with nominal damages), each party paying his own costs.

On this trial, which was given at full length in the Number for January, 1837, Dr. Maginn wrote the following "Defence of Fraser's Magazine in the Berkeley Affair," with which I conclude this volume.-M.]

DEFENCE OF FRASER'S MAGAZINE IN THE BERKELEY

AFFAIR.

I AM told by those whose opinions I have every reason to respect, that it is incumbent upon me to offer some observations on the case of Messrs. Fraser and Berkeley, so far as I am therein concerned. I intrude myself with reluctance on the attention of my readers. For many years, in constant communication with the public, I have, to the utmost of my power, courted privacy, because I have ever felt that the less periodical writers are urged personally into notice, it is the better for their readers and themselves. But I am now, as it were, forced to come forward, especially as I have been stigmatized as an anonymous slanderer. First, as to being anonymous: The custom of the country, and