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THE
LIVES
OF
THE CHIEF JUSTICES
OF :
ENGLAND. ;
FROM THE NORMAN CONQUEST TILL THE DEATH OF y
LORD MANSFIELD.
BY
hi JOHN LORD CAMPBELL, LL.D. F.R.S. 2.
AUTHOR OF
“THE LIVES OF THE LORD CHANCELLORS OF ENGLAND.
IN TWO VOLUMES.
VOL. II.
BOSTON:
CHARLES C. LITTLE AND JAMES BROWN,
1850.
5 oa | ‘
A.
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CONTENTS
OF
THE SECOND VOLUME.
CHAPTER XIX.
CHIEFY JUSTICES FROM THE RESIGNATION OF SIR MATTHEW HALE TILL THE
APPOINTMENT OF JEFFREYS.
State of the Times, Page 1. Sir Ricwarp Raynsrorp, 1. His early Career, 1.
He is made a Baron of the Exchequer, 2. A Puisne Judge of the King’s
Bench, 2. Chief Justice, 2. He decides the great Case of Privilege on the
Commitment of Lord Shaftesbury, 2. He is removed from his Office, 3. His
Death, 4. His Epitaph, 4. Contrast between Raynsford and his Successor,
Scroaes, 4. Story that Scroggs was the Son of a Butcher, 4. His true Pa-
rentage, 5. He carries Arms asa Cavalier,6. He studies Law, 6. He becomes
a Serjeant, 6. He is arrested for Debt, 7. He is introduced to Charles II., 7.
He is made a Puisne Judge of the Common Pleas, 7, He undermines Lord
Chief Justice Raynsford, 8. He is made Chief Justice of the King’s Bench, 9.
The part taken by him respecting the Popish Plot, 9.. Murder of Stayly, the
Roman Catholic Banker, 10. Other Murders committed by Scroggs, 11. Trial
of a Popish Priest, 11. Scroggs changes Sides, 12. He procures the Acquittal
of Sir George Wakeman, 13. Attacks on Chief Justice Scroggs, 18. Eloquent
Speech by him in his own Vindication, 13. | Acquittal of the Earl of Castlemaine;
and of Mrs. Cellier, 15. Dialogue with Dangerfield, 15. Ingenious Scheme to
extinguish the Liberty of the Press, 16. Scroggs frustrates the Attempt to
indict the Duke of York as a Popish Recusant by discharging the Grand Jury,
17. Charges against Scroggs before the King in Council, 18. He is acquitted,
19. Proceedings against him in the House of Commons, 19. Articles of Im-
peachment carried up to the Lords, 20. He is saved by the sudden Dissolution
of Parliament, 20. Reasons for cashiering him, 21. He is cashiered, 21. He
retires into the Country, 21. His Death, 22. His Character, 22.
CHAPTER XX.
LIFE OF LORD CHIEF JUSTICE PEMBERTON.
Glance at the Career and Character of Str FRANcts PEMBERTON, 24. His Origin
and Education, 25. At Catwnbridge, 26. He is entered at the Temple, 26,
His profligate Mode of Life, 26. He wastes his Patrimony, 26. He is con-
A 2
iv CONTENTS.
fined for Debt in the Fleet, 27. His Reformation, 27. He makes an Arrange-
ment with his Creditors and is discharged out of Prison, 29. He is called to the
Bar, 29. His Success, 30. He is appointed “ Devil” to the Attorney General,
30. He is made a Serjeant, 30. Contest about him between the two Houses of
Parliament, 30. He is placed on the Bench as a Puisne Judge, 32. He is dis-
placed, and returns to the Bar, 23. He is offered the Office of Chief Justice of
the King’s Bench, 34. After much hesitation he accepts it, 34. He tries
Fitzharris for High Treason, 35. He tries the Roman Catholic Primate of
Jreland, 36. He strives to induce the Grand Jury to find an Indictment against
Lord Shaftesbury, 39. Trial of Lord Grey de Werke for the Seduction of Lady
Harriet Berkeley, 40. Cause of Pemberton’s Removal from the office of Chief
Justice of the King’s Bench, 41. The London Quo Warranro, 41, He is
made Chief Justice of the Common Pleas, 42. Office of Chief Justice of the
King’s Bench again vacant, 43. Rye-house Plot, 44. Trial of Walcot, 44.
Lord Russell’s Case, 44, Courteous Demeanour of Pemberton to Lord Russell,
44, Determination to dismiss Pemberton from being a Judge, 46. His De-
cisions in Civil Cases, 47. Hea third time commences Practice at the Bar, 48.
He is Counsel for the Seven Bishops, 48. Question as to whether the Bishops
were legally imprisoned, 49. Pemberton’s Cross-examination of the Clerk of the
Council, 49. Difficulty in proving a Publication in Middlesex, 50. Pem-
berton’s Speech to show that the Petition of the Bishops was not a Libel, 51.
Weight of Pemberton with the Jury as an ex-Chief Justice, 53. Treatment of
Pemberton after the Revolution, 53. He is examined before the House of
Commons, 54. Complaint against him of a Breach of Privilege when he was
Chief Justice of the King’s Bench, 54. He is committed to Newgate, 56. He
again practises at the Bar, 57. His Death, 57, His Epitaph, 57.
CHAPTER XXI.
LIFE OF LORD CHIEF JUSTICE SAUNDERS.
Kind feeling among Lawyers for Str EpMuND SAUNDERS in spite of his Profligacy,
59. Qu. whether he was a Foundling? 59. His first appearance in London,
60. How he learned to write, 60, His Legal Education, 60. He is called to
the Bar, 61. Hisrapid Progress,61. The Excellence of his Reports, 62. His
Character as a Practitioner, 63. He is employed by the Government against
the Whigs, 63. He pleases the King and is knighted, 64. His Argument
against Fitzharris, 64. His Quarrel with Chief Justice Pemberton, 64. History
of the great London Quo Warranto, 65. Saunders made Chief Justice of the
King’s Bench, 66. His Installation, 66. Hearing of the Quo Warranto, 67.
Saunders’s last Illness, 68. Judgment in the Quo Warranto, 68. Saunders’s
Conduct at the Trial of Rex v. Pilkington, 69. His Death, 72. His Ap-
pearance, Manners, and Habits, 72. How he has contributed to the “ Grandeur
of the Law,” 73. His Will, 73. His Armorial Bearings, 74.
CHAPTER XXII.
CHIEF JUSTICES FROM THE DEATH OF SIR EDMUND SAUNDERS TILL THE REVOLUTION.
Jerrreys Chief Justice of the King’s Bench, 75. Reference to the Lives of the
Chancellors, 76. Additions to the “ Life of Jeffreys,” 76. Supposed Reluctance
of Jeffreys to support James against the Protestant Religion, 78. Vaeaney in
the Office of Chief Justice of the King’s Bench on the Promotion of Jeffreys to
be Lord Chancellor, 79. Perplexity about his Successor, 79. Sir Epwarp
HERBERT selected on account of his Opinion on the “ Dispensing Power,” 80.
_ His Origin, 80. Formation of his Political Creed, 81. He is sent as Attorney
_ General to Ireland, 81. His Position on his Return, 82. He is made Chief
CONTENTS. Vv
Justice of the King’s Bench, 83. Favourable Inclination towards him, notwith-
standing his Unfitness, 83. Opinion delivered by him on the Trial of Lord
Delamere, 84. Sir Edward Hales’s Case to establish the Dispensing Power, 85.
Opposition of some of the Judges, 86. Dissentient Judges are dismissed, 86.
Judgment of Chief Justice Herbert, 87, Sham Dissent of Judge Street, 88.
Herbert in high Favour, and likely to be Chancellor, 89. Herbert on the
Western Circuit, 90. Herbert offends the King by denying his Power to enforce
Martial Law in time of Peace, 90. Herbert refuses to sanction the Execution of
a Deserter unlawfully convicted, 92. Herbert is dismissed from the office of
Chief Justice of the King’s Bench, and made Chief Justice of the Common Pleas,
93. At the Revolution, Herbert adheres to King James, 93. He is made Lord
Chancellor by King James in Exile, 94. He is excepted from the Act of In-
demnity, 94. Testimonies to his Private Worth, 94. His Brothers Whigs, 95.
Eminence of Str Roperr Wricut among Bad Judges, 95. His Origin, 95. His
Idleness and Depravity, 95. He fails in the Profession of the Law, 96. Fraud
and Perjury of which he was guilty, 96. He is patronised by Jeffreys, 97. How
he was made a Judge, 97. Scene in Westminster Hall between the Lord Chief
Justice of the King’s Bench and the Lord Chancellor, 99. Wright promoted
from being a Baron of the Exchequer to be a Justice of the King’s Bench, 100.
He is made Chief Justice of the King’s Bench, 100. He orders a Deserter to be
hanged, contrary to Law, 101. He acts as one of the Visitors to introduce
Popery into Magdalene College, Oxford, 101. He sits as a Member of the High
Commission Court, 103. His Activity in forcing the Clergy to read the De-
claration of Indulgence, 103. Prosecution of the Seven Bishops, 104. Arraign-
ment, 104. Trial, 105. . Acquittal for Want of Evidence prevented by the In-
discretion of one of the Counsel, 106. Contest between Chief Justice Wright
and Justice Powell, 107. Wright’s Contest with Pemberton, 107. Doctrines of
a renegade Whig, 108. ‘The Chief Justice sums up to the Jury, 109. Opinions
of the Puisnies, 109. Holloway, 109. Powell, 110. Allybone, 110. De-
liberation of the Jury, 111. The Verdict, 111. Wright in danger of being
dismissed, 112. Reason why he was not dismissed, 112. Fate of Wright at the
Revolution, 113. He dies in Newgate, 113. He is buried with Felons, 113.
Proceedings against him in Parliament after his Death, 113. Utility of ex-
hibiting the Abuses of Government which led to the Revolution, 115.
CHAPTER XXIII.
LIFE OF LORD CHIEF JUSTICE HOLT, FROM HIS BIRTH TILL THE COMMENCEMENT OF
HIS CONTESTS WITH THE TWO HOUSES OF PARLIAMENT,
Services and Character of Sir Joun Hout, 118. His Father, 119. His Birth, 119,
At School, 120. His early Excesses, 120. He acts the part of a Wizard, 120
He studies Law at Gray’s Inn, 122. He is called to the Bar, 123, His pro-
fessional Progress, 123. He is a Whig, 123. He is Counsel for the Earl of
Danby and the Cathclic Peers charged with being concerned in the Popish Plot,
124. He acts as Junior to Jeffreys in a Prosecution for Libel, 125. He is
Counsel for Lord Russell, 125. As Counsel at the Bar he “goes the whole Hog,”
126. His Argument in Earl of Macclesfield v. Starkey, 127. Attempt to seduce
him by James II., 128. He is appointed Recorder of London, made King’s
Serjeant, and knighted, 128. He refuses to abet the arbitrary Measures of the
King, and is dismissed from the office of Reccrder, 129. He is continued in
his office of King’s Serjeant, 129. Landing of the Prince of Orange, 130. He
acts as Assessor to the Peers, 130. He is elected a Member of the Convention
Parliament, 130. Conference between the two Houses on “ Abdication” and
“ Desertion,” 131. Holt’s Speech as a Manager for the Commons, 131, He
takes the Oaths to William and Mary, 132. He is appointed Chief Justice of
the King’s Bench, 133. His Merits as a Judge, 135. He is praised by the
Tatler, 186. His Reporters, 136. His celebrated Judgment in Coggs ».
Bernard, 137. He Jays down the Doctrine that a Slave becomes free by
Vi CONTENTS.
breathing the Air of England, 138. His Construction of the Statute requiring
Persons to attend their Parish Churches, 140. He puts an End to the Practice
of giving Evidence against a Prisoner of prior Misconduct, and of trying Pri-
soners in Fetters, 140. Holt’s Influence with his Brother Judges, 141. Weight
of his Opinion with the Public, 141. His Conduct in presiding at the Trial of .
State Prosecutions, 142. Trial of Lord Preston for High Treason, 143. Rex v.
Charnock, 144. Rex v. Rookwood, 145. Vindication of Holt for the Law laid
down by him in Sir John Freind’s Case, 145, Liberty of the Press in the Reign
of Queen Anne, 147,
CHAPTER XXIV.
CONTINUATION OF THE LIFE OF LORD CHIEF JUSTICE HOLT TILL THE TERMINATION
OF HIS CONTESTS WITH THE TWO HOUSES OF PARLIAMENT.
Holt’s Contest with the House of Lords in Rex v. Knowllys, 148. He is sum-
moned before a Committee of Privileges, 150. His Popularity from his Triumph
over the House of Lords, 152. The Bankers’ Case, 152. On the Removal of
Lord Somers, Holt refuses to be Lord Chancellor, 154. He is a Lord Com-
missioner of the Great Seal, 185. Accession of Queen Anne: Holt reappointed
Chief Justice, 155. A Majority of Whigs in the House of Lords, and of Tories
in the House of Commons, 156. Corrupt Decisions of the House of Commons
in Election Cases, 156. The Aylesbury Case, 156. Qu. whether an Action
could be maintained by an Elector against a Returning Officer for refusing his
Vote? 156. The three Puisne Judges in the Negative, 157. Holt contra, 157.
Judgment of the King’s Bench reversed in the House of Lords, 160. Absurd
Resolutions of the House of Commons,160. Counter- Resolutions of the House
of Lords, 161. Writs of Habeas Corpus by the Aylesbury Men, 161. Holt’s
Opinion for discharging them, 162. He is over-ruled by all the other Judges,
163. Qu. whether Writ of Error lies on a Judgment on a Return to a Writ of
Habeas Corpus? 164. Commitments of Counsel by the Commons, 164. Fa-
bulous Story of Chief Justice Holt threatening to commit the Speaker of the
House of Commons, 165. The Abuse of Privilege by the House of Commons
remedied by Public Opinion on a General Election, 165. Holt again refuses
the Great Seal, 166.
CHAPTER XXV.
CONCLUSION OF THE LIFE OF LORD CHIEF JUSTICE HOLT.
Remainder of Holt’s Judicial Career, 167. His Death, 167. His Funeral, 167.
His Monument, 169. Holt’s Want of Literature and Science, 169. He put an
End to Trials for Witchcraft, 170. He exposes hypocritical Pretenders to ex-
traordinary Virtue, 172. His Detection of a False Prophet, 173. His Practice
of interrogating Prisoners on Trial, 174. His supposed Opinion as to the Jlle-
gality of employing the Military to put down Civil Disturbances, 174. His
Trial at Bar with the Crown, Trin., 176. Holt as an Author, 176. He was
married to a Shrew,.177. Conclusion, 178. .
CHAPTER XXVI.
CHIEF JUSTICES FROM LORD HOLT TILL THE APPOINTMENT OF SIR DUDLEY RYDER,
Sir THomas PARKER, afterwards Earl of Macclesfield, Chief Justice, 179. His Life
already written, 180. Vacancy in the Office of Chief Justice of the King’s Bench
CONTENTS. Vil
on his Promotion to be Chancellor, 180. Sir Joun Pratr Chief Justice, 181.
His Origin and Progress at the Bar, 181. He is made a Puisne Judge, 182.
Chief Justice of the King’s Bench, 182. His most celebrated Judgment, 182.
His Doctrine of Suspension overturned, 183. Chief Justice Pratt’s Conduct in
Dr. Bentley’s Case, 183. He tries Layer for High Treason, 186. His Opinion
respecting the Power of the King in the Marriage and Education of the Royal
Family, 187. His Death, 188. Lorp RayMonp, 189. Son of Sir Vhomas
Raymond, 189. He is called to the Bar, 190. His Eminence as a Reporter,
190. Witchcraft put an end to by the Prosecution of an Impostor, 190. Pro-
secution of Beau Fielding for Bigamy, 191. Raymond is Counsel for Lindsay
the Jacobite, 191. Raymond made Solicitor General by the Tories, 192. Ray-
mond in Opposition, 193. His Speech against the Septennial Bill, 193. He
joins the Whigs and is made Attorney General, 194. His Speech for the Crown
in prosecuting Layer, 195. He sinks into a Puisne Judge, 196. He is made
Chief Justice of the King’s Bench, 197. He is raised to the Peerage, 197. His
Doctrine that the Publisher of an obscene Libel may be prosecuted for a Mis-
demeanor, 198. He settles the Law respecting Murder and Manslaughter, 199.
Major Oneby’s Case, 199. Liability of a Gaoler for Murder by Neglect, 204.
Lord Raymond on the Law of Libel, 207. Lord Raymond’s Nisi Prius De-
cisions, 209. _ Lord Raymond’s Abstinence from Politics, 209. His Opposition
to the Bill for conducting Law Proceedings in English, 210. His Death, 210.
His Monument, 211. His Epitaph, 211. Panegyric upon him, 212. Lorp
HARDWICKE Chief Justice of the King’s Bench, 212. Difficulty in filling up the
Office on his Promotion to be Chancellor, 213. Srr Wirit1am LEE Chief Justice
of the King’s Bench, 214. His Birth, 214. Prophecy as to the Effect of
Plodding and Perseverance, 215. His Passion for Special Pleading, 215.
His Victory in a great Settlement Case, 216. He is Counsel in Appeal of
Murder, 216. His Dislike of the House of Commons, 217. He is made a
Puisne Judge, 217. His Intimacy with Lord Hardwicke, 218. He is made
Chief Justice of England, 218. His increasing Popularity, 219. His Judgment
in fayour of the “ Rights of Women,” 219. Other important Points decided by
him, 220. _ Trials of the Rebels at St. Margaret’s Hill, 221. Colonel Townley’s
Case, 222, An Execution for High Treason, 223, M‘Growther’s Case, 223.
The Kinlochs’ Case, 224. Sir John Wedderburn’s Case, 226. Signal Defeat of
Chief Justice Lee in a Trial for Libel, 227. Chief Justice Lee Chancellor of the
Exchequer, 228. Death of Chief Justice Lee, 229. His Diary and Almanacs,
229. Chief Justice Lee’s Greatness in his own Time, 231. His Eloge by Sir
James Burrow, 231. Chief Justice Lee’s MSS., 232.
CHAPTER XXVII.
LIFE OF CHIEF JUSTICE RYDER.
Sir DupiEey RYDER, 233. His Origin, 233. His Education, 234. He is called to
the Bar, 235. He is made Solicitor General, 235. Description of Dublin and
the Irish Bar in the beginning of the 18th Century, 236. Irish Judges and
Juries, 239. Sir Dudley Ryder is made Attorney General, 239. His Speech
for the Bill to disfranchise the City of Edinburgh, 240. His Speech in Support
of a Motion in the House of Commons for the summary Punishment of a Li-
beller, 241.. His Speech in Favour of Impressment, 242. His Speech for at-
tainting the Sons of the Pretender, 243. His Speech to prove the Expediency
of allowing the Insurance of Enemies’ Ships, 247. His Speech on the Regency
Bill, 247. His Speech in Support of Lord Hardwicke’s Marriage Bill, 248.
His Prosecution of Colonel Townley for High Treason, 250, His Speech on the
Impeachment of Lord Lovat, 251. Signal Defeat of Mr. Attorney General
and of the House of Commons, 253. Irish Porter’s Song on “ Sir Doodley,”
255. Ryder Lord Chief Justice, 255. He is about to be raised to the Peerage,
. 257. His sudden Death, 257. Letters of Archbishop Ryder, 257. Ex-
.. peetation that Sir Dudley Ryder’s Peerage would be conferred on his Son, 258,
Vili CONTENTS,
Letter on this Subject from the Honourable Charles Yorke, 258. Sir Dudley
Ryder’s amiable Character in Domestic Life, 259. Letters from him to Lady
Ryder, 260. View of Westminster Hall, 260. The Chancellor at Drury Lane,
261. Anniversary of Sir Dudley Ryder’s Wedding-Day, 261. Fashionable
Gossip, 262. Perils of a married Lawyer when living en gargon, 262. How a
Lawyer may account for a Headache got by taking too much Wine, 263. De-
parture of the Family Coach for Bath to bring back Lady Ryder, 264. Sir
Dudley’s Joy at her Approach, 264. His Descendants, 265.
CHAPTER XXVIII.
LIFE OF CHIEF JUSTICE WILLES.
Two Chief Justices of the;Common Pleas, 266, Origin of the WILLEs’s, 266. Sir
John’s early Career, 267. He enters Parliament, and is made a Welsh Judge,
267. Subsequent Disappointments, 268. He becomes Attorney General, 268.
His Speech against the Repeal of the Septennial Act, 269. He is made Chief
Justice of the Common Pleas, 270. His Disappointment on the Death of Lord
Chancellor Talbot, 270. His Intrigues with Lord Carteret, 271. He is made
First Lord Commissioner of the Great Seal, 272. He loses the Chancellorship
by his own Mismanagement, 273. Scene between Sir John Willes and Sir Robert
Henley, 275. Sir John Willes broken-hearted, 275. Death of Sir John Willes,
* 275. His Judicial Decisions, 275. His Conduct on the Trial of Elizabeth
Canning, 277. His Private Life, 277. His Descendants, 278.
CHAPTER XXIX.
LIFE OF CHIEF JUSTICE WILMOT.
Singular Characteristic of Lord Chief Justice Wmmort, 279. His Birth and
Education, 279. Johnson and Garrick his Schoolfellows, 280. He is called to
the Bar, 281. His Dread of being known or employed, 281. He becomes
“ Devil” to the Attorney General, 282. He refuses a Silk Gown, the Appoint-
ment of King’s Serjeant, and a Seat in Parliament, 282. He is Counsel {for
the Defendant in a Crim. Con. Cause, 282. He retires into the Country as a
provincial Counsel, 283. He is appointed a Puisne Judge of the King’s Bench,
284. He is a Commissioner of the Great Seal, 286. His first Refusal to be
Chancellor, 286. His Escape at the Worcester Assizes, 287. Offer made to
him to become Chief Justice of the Common Pleas, 288. Letter from his
Brother to persuade him to accept, 288. How he became a Chief Justice by
Duress, 289. Letter of Congratulation from Mr. Justice Yates, 289. From
Judge Blackstone, 290. He again refuses the Great Seal, 291. He resigns
Justiceship, 291. Wilmot in Retirement, 292, His Death, 292. His Judicial
Character, 293. Actionable to state in Writing that a Person has the Itech, 293.
Meaning, in a Policy, of “usurped Power,” 294. Qu. whether an Action lies
by a Lady against a Gentleman on a Covenant to marry no one but her, 295,
Power of the Solicitor General when the Office of Attorney General is vacant,
296. Power of the Superior Courts to punish Contempts, 297. Satire on Chief
Justice Wilmot by Horace Walpole, 298. Character of Chief Justice Wilmot
by his Son, 298. Censure on his Want of Ambition, 300.
CHAPTER XXX.
LIFE OF LORD MANSFIELD FROM His BIRTH TILL HE WAS CALLED TO THE BAR.
Qu. how far Lorp Mansriexp’s Career a fit Subject for Biography? 302. Sources
of Interest to the Author of this Memoir in composing it, 303. Lord Mansfield’s
CONTENTS. 1X
ilustrious Descent, $04. Founder of the Stormont-Murrays, 304. David, Ist
Viscount Stormont, 805. 5th Viscount Stormont, 306. Birth of William
Murray, afterwards Earl of Mansfield, 307. Refutation of the oft-told Tale that
he was removed to England in his Infancy, 307, Words which he could never
learn to pronounce like an Englishman, 308. Fable of his having been educated
at Lichfield, 308. Willie Murray at Perth School, 308. Items in Family
Accounts for Books, &c., for him while he was a Schoolboy, 310. Deliberations
respecting his further Education and his Profession, 311. His Brother James
created by the Pretender Earl of Dunbar, 311. He advises that Willie should
be sent to Westminster, 312, Willie to ride thither on a Pony, 313. He bids
Adieu to his Native Country, 318. His Journey, 314. His Arrival in London,
315. Received and taken care of by a Scotch Apothecary, 315. Items of Dis-
bursements for him, 315. William Murray at Westminster, 315. Letter from
the kind Apothecary to his Mother respecting him, 316. Anecdote of him while
at Westminster, 317. He is elected a Scholar of Christ Church, and goes to
Oxford, 318. His Destination changed from the Church to the Bar, 319.
Assistance afforded him by the first Lord Foley, 320. While at Oxford he is
entered of Lincoln’s Inn, $20, His Studies at Oxford, 320. He devotes himself
to the Art of Oratory, $21. His Latin Essay criticising Demosthenes, 322.
He gains the Latin Prize Poem on the Death of George I., 324. Origin of the
Rivalry between him and the elder Pitt, 326. Murray at Lincoln’s Inn, 326,
He attends a Debating Society, 329. He “drinks Champagne with the Wits,”
$29. His Intimacy with Pope, 329. His Excursion to France and Italy, 331,
He is called to the Bar, 331. His Accomplishments as an Advocate, 332.
CHAPTER XXXI.
CONTINUATION OF THE LIVE OF LORD MANSFIELD TILL HE WAS MADE SOLICITOR
GENERAL AND ENTERED THE HOUSE OF COMMONS,
At first without Business, 333. His Attachment to his Profession, 333. He takes
Chambers in King’s Bench Walk, where he is visited by Pope, 334. His Letters
“©on the Study of Ancient and Modern History,” 334. He prospers at the Bar
of the House of Lords, 336. He is Counsel against the Bill for Disfranchising
the City of Edinburgh for the Murder of Captain Porteus, 338. He is crossed
in Love, 339. Comforted by Pope, 340. Cured by Business, 341. He is
placed at the Head of the Bar by his Speech in a Crim. Con. Cause, 341.
No Truth in the vulgar Story of his being suddenly required to speak on his
Leader being taken ill, 342. Sarah, Duchess of Marlborough, his Client, 343,
He appears at the Bar of the House of Commons on the Petition for a War
with Spain, 344. His Marriage, $45. After the Fall of Sir Robert Walpole
he attaches himself to the Pelhams, 346. He is made Solicitor General, 347.
His Private Life, 348. His friendly Letter to Booth the Conveyancer, 348.
Letters from him to Lord Milton, the Scotch Judge, 349. Regret of Pope that
Murray had abandoned the Muses for Law and Politics, 351. Verses written by
Pope in Murray’s Chambers, 351. Their last Meeting, 352.
CHAPTER XXXII.
CONTINUATION OF THE LIFE OF LORD MANSFIELD TILL HE WAS MADE ATTORNEY
GENERAL,
Murray’s brilliant Success in the House of Commons, 353. Pitt his Rival, 353.
Murray’s Speech on the Employment of Hanoverian Troops, 354. Murray the
Prop of the Administration in the House of Commons, 356. Rebellion of 1745,
357. Suspension of the Habeas Corpus Act, 358. Murray prosecutes the rebel
Lords, 359. Trial of Lord Balmerino, 359. Trial of Lord Lovat, 361. Lord
MOT Lle . a
x CONTENTS.
Lovat’s Compliment to Mr. Murray, 363. Libels upon him indiscreetly an-
swered, 364. Murray an ultra Free Trader, 365. His Speech in Defence of the
Treaty of Aix-la-Chapelle, 367. Interval of Quiet to Murray in the House of
Commons while Pitt was in Office, 367. Death of Frederick, Prince of Wales,
868. The Regency Bill, 368. Charge against Murray that he drank the
Health of the Pretender, 370. Hearing of the Charge before the Privy Council,
372. Murray’s Speech in his own Defence, 373. He is acquitted, but sus-
pected, 375. Pitt’s Attack upon him as a Jacobite, 375. Murray’s celebrated
Vindication of our Naval Rights, 376. His Private Life, 377. His Enjoyment
of Lassitude, 378. His Patronage of Blackstone, 378. Death of Mr. Pelham,
379. Murray declines the situation of Prime Minister, 380. Duke of New-
castle Prime Minister, 380. Murray Attorney General, 381.
CHAPTER XXXIII.
CONTINUATION OF THE LIFE OF LORD MANSFIELD TILL HE WAS MADE LORD CHIEF
JUSTICE OF THE KING'S BENCH.
Murray refuses the Rolls, $82. Passages of Arms between Murray and Pitt, 383.
Letter to Lord Milton announcing his Appointment as Lord Justice Clerk, 385.
Disagreeable and apparently desperate Position in which Murray found himself,
385. Sudden Death of Sir Dudley Ryder, 386. Murray claims the office of
Chief Justice of the King’s Bench, 386. Vain Efforts of the Duke of Neweastle
to induce him to remain in the House of Commons, 387. Murray Chief Justice
of the King’s Bench, 389. The Appointment generally approved of, 389. His
Farewell Address on taking leave of Lincoln’s Inn, 390.
CHAPTER XXXIV.
VIEW OF LORD MANSFIELD’S JUDICIAL CHARACTER AND OF HIS DECISIONS.
He takes his Seat in the Court of King’s Bench, 393. Necessity for a Review of
Lord Mansfield’s Judgments, 393. Was he a great Judge? 394. His un-
paralleled Ascendaney in Westminster Hall, 359, His passionate Love of the
Duties of a Judge, 397. Reforms of Procedure introduced by him, 398. Im-
provements, founded on Principle, which he contemplated, 402. Panegyric
upon Lord Mansfield by Buller, 404. His Treatment of the Law of Insurance,
405. Bills of Exchange, 407. Right to Freight, 409. Employment of “ Puf-
fers” at an Auction, 409. His Colonial Law, 410. Campbell v. Hall, 410.
Legality of Ransom Bills,413. Remedy against the Governor of a Foreign Pos-
session, 414. Fabrigas v. Mostyn, 414. Lord Mansfield’s Respect for the
Jurisdiction of other Courts, 416. Right to Wreck, 417. Somersett’s Case:
a Slave becomes free in England, 418. Legality of pressing Seamen, 419.
Wagers, 420. On the Result of an Appeal to the House of Lords, 420. Two
Heirs “ running their Fathers,” 420. On the Sex of the Chevalier D’Eon, 422.
Conspiracy to corrupt a young Female indictable, 424. Lord Grosvenor »,
Duke of Cumberland, 425. Literary Property, 426. Lord Mansfield’s Deci-
cisions on the Law of Evidence, 429, Famous Case of Perrin v. Blake, 430.
Controversy respecting the contradictory Opinions given by Lord Mansfield,
434. Charge of Junius against Lord Mansfield for trying to subvert the Com-
mon Law, 437. Censure of him by Lord Redesdale, 438. Vindication of
Lord Mansfield, 438. His supposed Preference for the Civil Law, 438. His
supposed Neglect of established Forms and former Decisions, 439. His supposed
Confounding of Legal and Equitable Jurisdiction, 440. His real Love for Com-
mon-Law Modes of Proceeding, 442, Lord Mansfield as a Criminal Judge, 443.
CONTENTS. x1
Lord Mansfield’s Merits in deciding Scotch Appeals in the House of Lords,
444, The Douglas Cause; Explanation of Lord Mansfield’s bad Speech upon it,
445,
CHAPTER XXXV.
CONTINUATION OF THE LIFE OF LORD MANSFIELD FROM HIS BEING MADE. CHIEF
JUSTICE TILL THE ACCESSION OF GEORGE III.
Offer to Lord Mansfield of the Great Seal, 446. He takes his Seat in the
House of Peers, 447. His Maiden Speech there, 447. Lord Mansfield
Chancellor of the Exchequer, 448. Intrigues for the Formation of a new
Ministry, 449. Lord Chatham’s first Government, 450. Lord Mansfield again
refuses the Great Seal, 450. He is a Member of the Cabinet, 451. He
throws out the Habeas Corpus Amendment Bill, 453. Trial of De Hensey
for High Treason, 454. End of the Reign of George II., 455.
CHAPTER XXXVI.
CONTINUATION OF THE LIFE OF LORD MANSFIELD TILL THE DISAPPEARANCE OF
JUNIUS,
Accession of George III., 456. Lord Mansfield reappointed Chief Justice, 456.
Liaison between Lord Mansfield and Lord Bute, 456. Resignation of Lord
Chatham, 457. Prudent Advice given by Lord Mansfield to Lord Bute, 458.
Rumour that Lord Mansfield wished to be Chancellor, 458. Lord Bute’s
Differences with Lord Mansfield, and subsequent Imprudence, 459. Lord
Bute resigns, 460. Lord Mansfield continues a Member of the Cabinet, 460,
General Warrants, 461. Wilkes’s Outlawry, 462. Lord Mansfield’s Judg-
ment reversing the Outlawry, 463. Lord Mansfield retires from the
Cabinet, 466. Disputes with America, 466. Lord Mansfield again refuses
the Great Seal, 469. Question respecting the Middlesex Election, 470.
Lord Chatham’s Attack on Lord Mansfield, 471. Lord Mansfield quails
under the Infliction, 473. Lord Chatham’s Blunder about “an Action for
Damages against the House of Commons,” 474. Lord Mansfield’s Speech
against Lord Chatham’s Bill to reverse the Decision of the House of Com-
mons in the Middlesex Election Case, 475. Junius’s Letter to the King, 476.
Rex v. Almon, 477. Rex v. Woodfall, 478. Rex v. Miller, 479. Junius’s
first Letter to Lord Mansfield, 481. Attacks upon Lord Mansfield in Parlia-
ment, 484, His successful Defence of himself, 484. Lord Mansfield’s subse-
quent Indiscretion and Cowardice in his Contest with Lord Camden, 487.
Lord Mansfield gives the Great Seal to Lord Bathurst. New Attacks on Lord
Mansfield by Junius, 490, Junius at last silenced, 492.
CHAPTER XXXVII.
CONTINUATION OF THE LIFE OF LORD MANSFIELD TILL THE DEATH OF LORD
CHATHAM.
Lord Mansfield visits Paris, 494. Progress of the Disputes with America, 495.
Lord Mansfield’s Speech for a vigorous Prosecution of the War, 496. Specimen
of the Manners of the House of Lords in the Reign of George III., 496. Sup-
posed Consequences of the Independence of America, 500. ‘Trial of the Duchess
of Kingston for Bigamy, 500. Lord Mansfield created an Earl, 501. Trial of
John Horne Tooke for a Libel, 503. Disasters in America, 504. Death of
Lord Chatham, 505. Lord Mansfield’s Behaviour on this Occasion, 506.
’
CHAPTER XXXVIII.
CONTINUATION OF THE LIFE OF LORD MANSFIELD TILL THE CONCLUSION OF THE
TRIAL OF LORD GEORGE GORDON.
Decline of Lord Mansfield’s Political Importance after the Death of Lord Chatham,
509, He recommends a Coalition of Parties, 510, Lord George Gordon’s
xu CONTENTS.
Riots, 511. Lord Mansfield’s Love of Religious Toleration, 511. Remedy to
Dissenting Ministers, 511. Evidence of a Quaker admitted in an Action for
Bribery, 511. A Dissenter not liable to a Penalty for not accepting an Office
requiring Conformity to the Established Church, 512. Acquittal of a Roman
Catholic Priest charged with the Crime of saying Mass, 514. Bill to mitigate
the Penal Laws against Catholics, 516. Anti-Popery Riots and Petitions, 516.
Violent Speech of Lord George Gordon in the House of Commons, 516.
Monster Petition from the Protestant Association to the House of Commons,
517. Meeting in St. George’s Fields, 517. Assault on the Peers, 518. Great
Courage displayed by Lord Mansfield, 520, He is deserted by all his Brother
Peers, 521. He gets home in Safety, 522. His House isbu rnt down by the
Mob, 524. Stanzas by Cowper on the Burning of Lord Mansfield’s Library,
525. The Riots are at last quelled, 526. Lord Mansfield’s Speech vindicating
the Employment of the Military for that purpose, 527. He presides at the
Trial of Lord George Gordon, 531. Erskine’s Allusion to the Burning of Lord
Mansfield’s House, 531. Lord Mansfield’s Exposition of the Law of High
Treason, 532, Lord George Gordon is acquitted, 532.
CHAPTER XXXIX.
CONTINUATION OF THE LIFE OF LORD MANSFIELD TILL HE RESIGNED THE OFFICE
OF CHIEF JUSTICE,
Lord Mansfield takes no part in Politics during the Administrations of Lord
Rockingham and Lord Shelburne, 533. He joins the Coalition, 534. Fox’s
India Bill in the House of Lords, 535. Mr. Pitt Prime Minister, 537. Lord
Mansfield’s last Speech in Parliament, 538. Close of Lord Mansfield’s Political
Career, 539. Dean of St. Asaph’s Case: Rights of Juries in Cases of Libel,
540. Progress of Opinion respecting the Law of Libel, 544. Action by Mr.
Pitt for a Libel accusing him of gambling in the Funds, 545. Lord Mansfield’s
Visit to Tunbridge Wells, 547. Interview between Lord Mansfield and Lord
George Sackville, 548. Lord Mansfield, unable to sit in Court, retains his
Office, 549. He resigns the office of Chief Justice, 550. Address to him by
the King’s Bench Bar, 551, His Answer, 551.
CHAPTER XL.
CONCLUSION OF THE LIFE OF LORD MANSFIELD.
Lord Mansfield in Retirement, 552. His Opinion upon the Introduction of Jury
Trial in Civil Cases in Scotland, 553. Recollections of Lord Mansfield by his
Grand-Nephew, 555. His Amusements, 555. His Care of his Fortune, 556.
He abstains from giving any Opinion upon the Regency Question, 557, His
Views of the French Revolution, 558. His continuing Powers of Memory, 559.
His last Illness, 560. His Death, 561. His Funeral, 561. His Will, 561.
His Position among the Lawyers of the Eighteenth Century, 562. Felicity of
the Life of a Lawyer practising under him, 564. Solution of the Charge that
he knew no Law, 565. Sermon written by him and preached by a Bishop, 566.
His Demeanour in Society, 568. His Facetie, 569. Jokes on Serjeant Hill,
571. His Advice to a General about to act as a Colonial Judge, 572. The
Space occupied by him in the Public Eye, 573. His Habits of Industry and
Temperance, 574, His Defects and Faults, 576. Without original Genius,
576. His Want of Moral Courage, 576. Without Warmth of Affection, 577.
Defence of his Public Conduct, 578. Lampoon upon him supposed to be
written by a Chief Justice, 579. His Character by Smollett, 579. By other
Contemporaries, 580. By Lord Monboddo, 580. By Bishop Hurd, 581. By
Bishop Newton, 581. Imitations of his Manner of Speaking, 583. Likenesses
of him, 583, Aspiration of the Author, 585.
LIVES
OF THE
CHIEF JUSTICES OF ENGLAND.
CHAPTER XIX.
CHIEF JUSTICES FROM THE RESIGNATION OF SIR MATTHEW HALE
TILL THE APPOINTMENT OF JEFFREYS.
ON the resignation of Sir Matthew Hale the times were yet
tolerably quiet, and, there being no Government job to be
done in the Court of King’s Bont a disposition existed to
appoint a respectable man to succeed him; but a great
penury of learning and ability was discovered in icone to
those, either at the bar or on the bench, whose fitness was
canvassed, and, at last, Lord Nottingham, who now held
the great seal, decided that he could not do better than pro-
mote Sir Ricnarp RaynsFrorD, a Puisne Judge of this
court, to be Chief Justice. He was a man of good family,
fair estate, decent character, and agreeable nianners, with a
sufficient portion of understanding and learning to keep him
above contempt.
Descended from the Raynsfords of Raynsford, in the
county of Lancaster, he was of a branch of the family settled
at Dullington, in Northamptonshire. He began life as a
younger brother, and was bred to the bar at Lincoln’s Inn.
His relations were strong Cavaliers, and he himself enter-
tained, in his heart, a thorough hatred of Roundheads; but,
entering upon his professional career when the Parliament
had gained a complete ascendancy over r the King, he deemed
VOL. II. B
CHAP:
XIX.
State of
the times.
A.D. 1676.
Sir Richard
Raynsford.
His early
career,
Nov, 16.
1663.
He is made
a Baron of
the Exche-
quer.
Feb. 6.
1669.
A Puisne
Judge of
the King’s
Bench.
Chief Jus-
tice.
April 12.
1676.
He decides
the great
case of pri-
vilege on
the com-
mitment of
Lord
Shaftes-
bury.
REIGN OF CHARLES II.
it more prudent to submit to the ruling powers, and in 1653
he was chosen Deputy Recorder of Northampton; but he
neither obtained nor sought any farther preferment till the
Restoration. By the death of his elder brother he obtained
possession of the patrimonial property, reckoned worth 600/.
a year, and he was to have been made one of the “‘ KNIGHTS
OF THE Roya Oak” if that order, which was in con-
templation, had been established. Although he represented
the county of Northampton in the Convention Parliament
and that which followed, and he was looked upon rather as
a country squire than a lawyer, he had a liking for the pro-
fession, and he continued to attend the courts and to go the
circuit. In 1663 he was made a Baron of the Exchequer,
and for six years he sat, almost dumb, listening to profound
elucidations of the law from the lips of Lord Chief Baron
Hale. It was then convenient that he should be transferred
to the King’s Bench *, where he still maintained his repu-
tation for good sense and discretion. No one haying
dreamed of his going higher, the news of his appointment as
Chief Justice of England caused considerable surprise ; but,
on account of his inoffensiveness and gentlemanlike deport-
ment, there was a general inclination to support him and to
speak well of him.
He held his office two years, — till the Popish plot broke
out, and the Government deemed it necessary to substitute
for him a tool better fashioned for doing the horrid work then
on hand to their mind—Sr1r WiLiiam Scroees; who,
next to JEFFREYS,—and at a very short distance from him,—
is considered the most infamous judge who ever sat on the
English bench. |
During Lord Chief Justice Raynsford’s time, one case of
great public interest arose, and this he disposed of very satis-
factorily. The famous Earl of Shaftesbury—having been sent
to the Tower by the House of Peers, under a warrant which
merely stated that it was “for high contempts committed
against this House,” without specifying what the offence was
* 2 Keble, 469. On this occasion he took precedence of a King’s Bench
Puisne, who had been made a judge after him: — “ Et donque sans autre cere-
mony, il seu sure le ba. supra Morton, quia, il fust Baron devenant que Morton
fust fait Justice.” -—-1 Sid. 408.
LIFE OF CHIEF JUSTICE RAYNSFORD.
—sought to be discharged by a writ of habeas corpus, return-
able in the King’s Bench,— on the ground that the warrant
was illegal; and he and his counsel argued very plausibly that
every freeman was entitled to know the charge on which he
was deprived of his liberty, and that what the Lords con-
strued as a high contempt might, in reality, be an act per-
fectly innocent, or such as it was the duty of the party
imprisoned to do under the obligation of a statute or of the
common law.
At this time Shaftesbury was highly obnoxious to Danby,
the Prime Minister, who earnestly desired to detain his
rival in custody ; otherwise, no one can tell how the point of
privilege would have been settled. We are bound, however,
to suppose that all the Judges of the Court looked only to
the just principles on which parliamentary privilege is
founded, and to Chief Justice Newdigate’s decision in Sir
Robert Pye’s case during the Commonwealth.
Raynsford, C. J.: “This Court has no jurisdiction of the
cause, and therefore we cannot take into consideration the form
of the return. We ought not to extend our jurisdiction beyond
its due limits, and the practice of our ancestors will not warrant us
in such an attempt. The consequence would be very mischievous
if this Court should deliver a member of the House of Peers or
Commons, committed for contempt, for thereby the public business
may be retarded; for it may be the commitment was for evil
behaviour or indecent reflections on other members, to the dise
turbance of the affairs of Parliament. The commitment in this
case is not for safe custody, but in execution of the judgment given
by the Lords for the contempt; and, therefore, if he were bailed
he would be delivered out of execution. For a contempt in facie
curi@ there is no other judgment. This Court has no jurisdiction,
and therefore the prisoner must be remanded.” *
So he lay in custody till he was obliged to make an abject
apology to obtain his liberation, and he seemed for ever
ruined as a public man — when the Popish plot suddenly
made him more popular and more powerful than ever.
The shadow of this coming event was the signal for the
He is re-
moved
dismission of Sir Richard Raynsford — the first instance of fom his
such an exercise of the prerogative during the present
ATG Steer, 1iil.
BQ
office,
May 1678,
His death.
His epi-
taph,
Contrast
between
Raynsford
and his
successor,
Scroggs.
Story that
Scroges
was the
son of a
butcher.
REIGN OF CHARLES II.
reign.* Although there had been before him four Chief
Justices of the King’s Bench appointed by Charles II. in
rapid succession, the first three had died in office, and the
fourth had voluntarily resigned. Raynsford was very un-
willing to retire, but, being plainly told that this step was ne-
cessary for the King’s service, he at last quietly submitted, and,
as he had no quarrel with the Government, the act of cashier-
ing him was carried through with all becoming delicacy.
He retired to his country house at Dullington, and—haying
founded almshouses there for the good of his soul, to main-
tain old men and old women, with an allowance of 2s. weekly
to each—he died on the 17th of December, 1679, in the 75th
year of his age. A monument was erected to his memory in
the parish church, with an inscription from which it might
be supposed that he was a greater Chief Justice than Coke,
Hale, Holt, or Mansfield. I will give a short specimen of
it: -—— :
“ Richardi Raynsford Militis
Nuper de Banco Regis Capitalis Justiciarii, &c,
Eximii sui seculi decus,
Quem non ceeca sors, at spectata virtus,
Ad illos quos ornayit honores evexit,
Quem summa in Deum pietas, in patriam charitas,
In Regem, in ecclesiam, inconeussa fides,
In jure dicendo erudita probitas,
Asylum bonis, flagellum malis,” &e, &c. F
Never was there a more striking contrast than between
Chief Justice Raynsford and his immediate successor. ScROGGS
had excellent natural abilities, and might have made a great
figure in his profession; but was profligate in his habits,
brutal in his manners, with only one rule to guide him —a
regard to what he considered his own interest, — without a
touch of humanity,—wholly impenetrable to remorse. —
It was positively asserted in his lifetime, and it has been
often repeated since, that he was the son of a butcher, and
that he was so cruel as a judge because he had been himself
accustomed to kill calves and lambs when he was a boy.
*«'T. T. 3 Car. II., Mundum. ‘his term Sir Richard Raynsford was re-
moved, and Sir William Scroggs, one of the Justices of the Common Pleas, was
made Lord Chief Justice of the King’s Bench.” — (1 Vent. $29.)
¢ Bridges’ Northampton, i, 495.
LIFE OF CHIEF JUSTICE SCROGGS.
A popular ballad, published at the time when he was
pouring forth innocent blood like water, contained these
stanzas :—
* A butcher’s son’s Judge Capital,
Poor Protestants to enthral,
And England to enslave, sirs ;
Lose both our laws and lives we must,
When to do justice we entrust
So known an arrant knave, sirs.
*¢ His father once exempted was
Out of all juries; why? because
He was a man of blood, sirs.
And why the butcherly son (forsocth !)
Should now be judge and jury both,
Cannot be understood, sirs.
“ The good old man, with knife and knocks,
Made harmless sheep and stubborn ox
Stoop to him in his fury ;
But the bribed son, like greasy oaph,
Kneels down and worships golden calf,
And massacres the jury.” *
There are many grave prose authorities to the same effect.
Roger North, who must have known him familiarly for many
years, and highly approved of his principles, says, “ This Sir
William Scroggs was of a mean extract, having been a
butcher’s son;”t and Sir William Dugdale, supposed to be
the most accurate of genealogists, being not only a man of
profound antiquarian learning, but at the head of heraldry as
GARTER Kine ar ARMS, wrote, in answer to inquiries on
the subject from Wood, the author of the ATHEN&, “ Sir
William Scroggs was the son of a one-eyed butcher near
Smithfield Bars; and his mother was a big fat woman, with
a red nose like an ale-wife.” t
Yet it is quite certain that the usual solution of Scroges’s
taste for blood is a pure fiction, for he was born and teed a
gentleman. Some said, jocularly, that he was descended
from the ancient Welsh family Ailmaddocks of Kilmaddocks §;
but, in truth, his father was a squire, of respectable family
* This metrical broadside is entitled “‘ Justice in Masquerade.”
t+ Life of North, i. p. 296.
¢ Athene, vol. iv. p. 117. Wood cautions his readers against giving implicit
eredit to this statement, as Dugdale had a spite against Scroggs, who had re-
fused to pay certain fees to the College of Arms, which had been demanded of
him when he was made a knight,
§ Kill — mad — ox,
BS
CHAP,
XIX.
His true
parentage.
He carries
arms as a
Cavalier.
He studies
law.
He be-
comes a
Serjeant.
June 25.
1669.
Noy. 21,
LIFE OF CHIEF JUSTICE SCROGGS,.
and good estate, in Oxfordshire. Young Scroggs was several
years at a grammar-school, and he took a degree with some
credit in the University of Oxford, having studied first at
Oriel, and then at Pembroke, College. Te was intended for
the Church, and, in quiet times, might have died respected
as a pains-taking curate, or as Archbishop of Canterbury.
But, the civil war breaking out while he was still under age,
he enlisted in the King’s cause, and afterwards commanded
a troop of horse, which did good service in several severe
skirmishes. Unfortunately, his morals did not escape the
taint which distinguished both men and officers on the
Cavalier side.
The dissolute habits he had contracted unfitted him entirely
for the ecclesiastical profession, and he was advised to try
his luck in the law. He had a quick conception, a bold
manner, and an enterprising mind; and prophecies were
uttered of his great success if he should exchange the cuirass
for the long robe. He was entered as a student at Gray’s
Inn, and he showed that he was capable, by short fits, of
keen application; but his love of profligacy and of expense
still continued, and both his health and his finances suffered
accordingly.
However, he contrived to be called to the bar; and some.
of his pot companions being attorneys, they occasionally
employed him in causes likely to be won by a loud voice and
an unscrupulous appeal to the prejudices of the jury. He
practised in the King’s Bench, where, although he now and
then made a splashy speech, his business by no means in-
creased in the same ratio as his debts. ‘ He was,” says
Roger North, “a great voluptuary, his debaucheries egregious,
and his life loose; which made the Lord Chief Justice Hale
detest him.” Thinking that he might have a better chance
in the Court of Common Pleas, where the men in business
were very old and dull, he took the degree of the coif, and
he was soon after made a King’s Serjeant. Still, however,
he kept company with Ken, Guy, and the high-Court rakes,
and his clients could not depend upon him. His visage being
comely, and his speech witty and bold, he was a fayourite
LIFE OF CHIEF JUSTICE SCROGGS.
with juries, and sometimes carried off wonderful verdicts ;
but, when he ought to have been consulting in his chamber
in Serjeants’ Inn, he was in a tavern or gaming-house, or
worse place, near St. James’s palace. Thus his gains were
unsteady, and the fees which he received were speedily spent
in dissipation, so that he fell into a state of great pecuniary
embarrassment. On one occasion, he was arrested by a
creditor in Westminster Hall as he was about to enter his
coach. ‘The process being out of the King’s Bench, he com-
plained to that Court of a breach of his privileges as a Ser-
jeant; but Lord Chief Justice Hale refused to discharge
him. He afterwards pleaded his privilege, and brought an
action for what he called the illegal arrest, contending that,
as a Serjeant-at-law, he could only be regularly sued in the
Court of Common Pleas. The Judges decided unanimously
against him, Hale observing, “ Although Serjeants have a
monopoly of practice in the Common Pleas, they have a right
to practise, and do often practise, at this bar; and if we were
to assign one of them as counsel, and he were to refuse to
act, we should make bold to commit him to prison.” *
Meanwhile, Serjeant Scroggs was in high favour with
Lord Shaftesbury’s enemies, who, on the commitment of
that turbulent leader to the Tower for breach of privilege,
had gained a temporary advantage over him. Through the
agency of Chiffinch, superintendent of the secret intrigues
of every description which were carried on at Whitehall, he
had been introduced to Charles II., and the merry monarch
took pleasure in his licentious conversation. What was of
more importance to his advancement, he was recommended to
the Earl of Danby, the reigning Prime Minister, as a man that
might be useful to the Government if he were made a judge.
In consequence, on the 23d of October, 1676, he was knighted,
and sworn in a Justice of the Court of Common Pleas. Sir
Allan Broderick, in a letter to ‘the Honourable Lawrence
Hyde,” written a few days after, says, “ Sir William Scroggs,
on Monday, being admitted Judge, made so excellent a speech
that my Lord Northampton, then present, went from West-
* Freeman, 389.; 2 Lev. 129.; 3 Keb. 424. 439, 440.; Roger North’s
Lives of the Norths, i. 137.
B 4
7
CHAP.
XIX.
A.D. 1669
—1676.
He is ar-
rested for
debt.
He is in-
troduced to
Charles II.
He is made
a Puisne
Judge of
the Com-
mon Pleas,
8
CHAP,
XIX.
A.pv. 1678,
He under-
mines Lord
Chief Jus-
tice Rayns-
ford.
REIGN OF CHARLES It.
minster to Whitehall immediately, and told the King he had,
since his happy restoration, caused many hundred sermons to
be printed, all which together taught not the people half so
much loyalty ; therefore, as a sermon, desired his command
to have it printed and published in all the market towns in
England.”*
Mr. Justice Scroggs gave himself little trouble with law
business that came before the Court; but, in addressing grand
juries on the circuit, he was loud and eloquent against the
proceedings of the “country party,” and he still continued to
be frequently in the circle at Whitehall, where he took op-
portunities not only to celebrate his own zeal, but to sneer at
Sir John Raynsford, the Chief Justice of the King’s Bench,
whose place he was desirous to fill.j Chiffinch, and his other
patrons of the back-stairs, were in the habit of sounding his
praise, and asserting that he was the only man who, as head
of the King’s Bench, could effectually cope with the ma-
neuvres of Shaftesbury. This unconquerable intriguer,
having been discharged from custody, was again plotting
against the Government, was preparing to set up the legiti-
macy of Monmouth, and was asserting that the Duke of
York should be set aside from the succession to the throne
and prosecuted as a Popish recusant. ‘There had been a
reluctance to exercise the prerogative of cashiering judges,
which had been dormant during the long reign of Elizabeth,
and the abuse of which had caused such scandal in the
reigns of James I. and Charles I. But these scruples being
once overcome were wholly disregarded. From this time
the system recommenced of clearing the bench for political
reasons, and it was continued till, the vilest wretch the
profession of the law could furnish being Chief Justice of
England, his tenure of the office became in some degree
independent.t t
The immediate cause of Raynsford’s removal was the de-
* Correspondence of the Earls of Clarendon and Rochester, vol. i. p. 2.
t In consequence of the intrigues of Puisne Judges desirous of becoming
Chiefs in the reigns of Charles II, and James II., the rule was laid down at the
Revolution that a Puisne Judge is only to attend one levee on his appointment,
and is never again to appear at Court.
¢ Sir Robert Wright, James IT.’s last Chief Justice, who presided at the trial
of the Seven Bishops,
LIFE OF CHIEF JUSTICE SCROGGS.
sire of the Government to have a Chief Justice of the King’s
Bench on whose vigour and subserviency reliance could
be placed, to counteract the apprehended machinations of
Shaftesbury.
On the 31st of May, 1678, Sir William Scroggs was
sworn into the office*, and he remained in it for a period of
three years. How he conducted himself in civil suits is
never once mentioned, for the attention of mankind was en-
tirely absorbed by his scandalous misbehaviour as a Criminal
Judge. He is looked to with more loathing, if not with more
indignation, than Jeffreys, for in his abominable cruelties he
was the sordid tool of others, and in his subsequent career he
had not the feeble excuse of gratifying his own passions or
advancing his own interests.
Although quite indifferent with regard to religion, and
ready to have declared himself a Papist, or a Puritan, or a
Mahometan, according to the prompting of his superiors, —find-
ing that the policy of the Government was to outbid Shaftes-
bury in zeal for Protestantism, he professed an implicit
belief in all the wonders revealed by Titus Oates, in the
murder of Sir Edmondbury Godfrey by Papists, and in the
absolute necessity for cutting off without pity all those who
were engaged in the nefarious design to assassinate the King,
to burn London and to extinguish the flames with the blood
of Protestants. He thought himself to be in the singularly
felicitous situation of pleasing the Government while he re-
ceived shouts of applause from the mob. Burnet, speaking of
his appointment, says, ‘‘ It was a melancholy thing to see so
bad, so ignorant, and so poor a man raised up to that great
post. Yet he, now seeing how the stream ran, went into it
with so much zeal and heartiness that he was become the
favourite of the people.”
The first of the Popish Plot judicial murders — which are
more disgraceful to England than the massacre of St. Bar-
* 1 Vent. 329.; Sir Thomas Raynard, 244,
+ Own Times, ii. 69. He thus introduces our hero: —“ The Lord Chief
Justice at that time was Sir William Scroggs, a man more valued for a good
readiness in speaking well than either for learning in his profession or for any
moral virtue. His life had been indecently scandalous, and his fortunes were
very low.”
9
CHAP.
XIX.
A.D. 1678.
He is made
Chief Jus-
tice of the
King’s
ench,
\
The part
taken by
him re-
specting
the Popish
Plot.
Nov. 20.
10
CHAP.
XIX.
A.p. 1679.
Murder of
Stayly, the
Roman
Catholic
banker,
REIGN OF CHARLES II.
tholomew’s is to France — was that of Stayly, the Roman
Catholic banker. Being tried at the bar of the Court of
King’s Bench, Scroggs, according to the old fashion, which
had gone out during the Commonwealth, repeatedly put
questions to the prisoner, attempting to intimidate him, or to
involve him in contradictions, or to elicit from him some in-
discreet admission of facts. A witness having stated that
‘“‘ he had often heard the prisoner say he would lose his blood
for the King, and speak as loyally as man could speak,”
Scroggs exclaimed, “ That is, when he spoke to a Protestant!”
In summing up, having run himself out of breath by the
violence with which he declaimed against the Pope and the
Jesuits, he thus apologised to the jury : —
«“ Excuse me, gentlemen, if I am a little warm, when perils are
so many, murders so secret, that we cannot discover the murderer
of that gentleman whom we all knew so well.* When things are
transacted so closely, and our King isin great danger, and religion
is at stake, I may be excused for being a little warm. You may
think it better, gentlemen, to be warm here than in Smithfield,
Discharge your consciences as you ought to do. If guilty, let the
prisoner take the reward of his crime, for perchance it may be a
terror to the rest. I hope I shall never go to that heaven where
men are made saints for killing kings.”
The verdict of guilty being recorded, Scroggs, C. J. said, “ Now,
you may die a Roman Catholic; and, when you come to die, I
doubt you will be found a priest too. ‘The matter, manner, and
all the circumstances of the case make it plain; you may harden
your heart as much as you will, and lift up your eyes, but you
seem, instead of being sorrowful, to be obstinate. Between God
and your conscience be it; I have nothing to do with that; my
duty is only to pronounce judgment upon you according to law —
you shall be drawn to the place of execution, where you shall be
hanged by the neck, cut down alive,” &c. &c.
The unhappy convict’s friends were allowed to give him
decent burial; but, because they said a mass for his soul, his
body was, by order of Lord Chief Justice. Scroggs, taken
out of the grave, his quarters were fixed upon the gates of
the City, and his head, at the top of a pole, was set on Lon-
don Bridge. So proud was Scroggs of this exploit, that he
* Sir E. Godfrey.
LIFE OF CHIEF JUSTICE SCROGGS.
had an account of it written, for which he granted an IM-
PRIMATUR, signed with his own name.*
I must not run the risk of disgusting my readers by a de-
tailed account of Scroggs’s enormities on the trials of Cole-
man, Ireland, Whitebread, Langhorn, and the other victims
whom he sacrificed to the popular fury under pretence that
they were implicated in the Popish Plot. Whether sitting in
his own court at Westminster, or at the Old Bailey in the City
of London, as long as he believed that Government favoured
the prosecutions, by a display of all the unworthy arts of
cajoling and intimidation he secured convictions. A modern
historian, himself a Roman Catholic priest, says, with temper
and discrimination, ‘* The Chief Justice Scroggs, a lawyer of
profligate habits and inferior acquirements, acted the part of
prosecutor rather than of judge. To the informers he be-
haved with kindness, even with deference, suggesting to them
explanations, excusing their contradictions, and repelling the
imputation on their characters; but the prisoners were re-
peatedly interrupted and insulted; their witnesses were brow-
beaten from the bench, and their condemnation was generally
hailed with acclamations, which the Court rather encouraged
than repressed.” f
Meanwhile the Chief J ustice went the circuit ; and although
the. Popish Plot did not extend into the provinces, it may be
curious to see how he demeaned himself there. Andrew
Bromwich being tried before him capitally, for having ad-
ministered the sacrament of the Lord’s Supper according to
the rites of the Church of Rome, thus the dialogue be-
tween them proceeded : —
Prisoner: “I desire your Lordship will take notice of one
thing, that I have taken the oaths of allegiance and supremacy,
and have not refused anything which might testify my loyalty.”
Scroggs, C.J.: “ That will not serve your turn; you priests have
many tricks. What is that to giving a woman the sacrament
several times?” Prisoner: “ My Lord, it was no sacrament unless
I be a priest, of which there is no proof.” Scroggs: “ What!
* 6 St. Tr. 1501—1512. For this he probably received a good sum of
money.
t Lingard, xii. 161. See 7 St. Tr. 1—591.
11
CHAP.
XIX,
A.v. 1679,
Other
murders
committed
by Scroggs,
Trial of a
Popish
priest,
12
CHAP.
XIX.
A.D. 1679,
1680.
Scroggs
changes
sides.
REIGN OF CHARLES II.
you expect we should prove you a priest by witnesses, who saw
youordained? We know too much of your religion; no one gives
the sacrament in a wafer, except he be a popish priest: you gave
that woman the sacrament in a wafer; ergo, you are a popish
priest.” Thus he summed up: “ Gentlemen of the Jury, I leave it
upon your consciences whether you will let priests escape, who
are the very pests of Church and State ; you had better be rid of
one priest than three felons; so, gentlemen, I leave it to you.”
After a verdict of GuILTY, the Chief Justice said, “* Gen-
tlemen, you have found a good verdict, and if I had been one
of you I should have found the same myself.” He then pro-
nounced sentence of death, describing what seemed to be his
own notion of the Divine Being, while he imputed this blas-
phemy to the prisoner,—‘ You act as if God Almighty
were some omnipotent mischief, that delighted and would be
served with the sacrifice of human blood.” *
Scroggs was more and more eager, and “ranted on that
side more impetuously,”t when he observed that Lord
Shaftesbury, who, although himself too shrewd to believe in
the Popish Plot, had been working it furiously for his own
purposes, was taken into office on the formation of Sir Wil-
liam Temple’s new scheme of administration, and was actually
made President of the Council. But he began to entertain
a suspicion that the King had been acting a part against his
inclination and his judgment, and, having ascertained the real
truth upon this point, he showed himself equally versatile and
violent by suddenly going over to the opposite faction. Roger
North gives the following racy account of his conversion : —
“ Tt fell out that when the Earl of Shaftesbury had sat some
short time in the Council, and seemed to rule the roast, yet Scroggs
had some qualms in his politic conscience; and coming from
Windsor in the Lord Chief Justice North’s coach, he took the op-
portunity and desired his Lordship to tell him seriously if my
Lord Shaftesbury had really so great power with the King as he
was thought to have. His Lordship answered quick, ‘ No, my
Lord, no more than your footman hath with you.’ Upon that the
other hung his head, and, considering the matter, said nothing for
a good while, and then passed to other discourse. After that time
* 7 St. Tr. 715—730. + Roger North.
LIFE OF CHIEF JUSTICE SCROGGS.
he turned as fierce against Oates and his plot as ever before he
had ranted for it.” *
The first Popish Plot case which came on after this con-
version was the trial of Sir George Wakeman, the Queen’s
physician, against whom Oates and Bedloe swore as stoutly
as ever; making out a case which implicated, to a certain
degree, the Queen herself. But Chief Justice Scroggs now
sneered at the marvellous memory or imagination of Oates ;
and, taking very little notice, in his summing up, of the evi-
dence of Bedloe, thus concluded : —
“Tf you are unsatisfied upon these things put together, and,
well weighing, you think the witnesses have not said true, you
will do well to acquit.” Bedloe: “ My Lord, my evidence is not
right summed up.” Scroggs, C.J.: “I know not by what au-
thority this man speaks. Gentlemen, consider of your verdict.”
An acquittal taking place, not only were Oates and Bedloe
in a furious rage, but the mob were greatly disappointed, for
their belief in the plot was still unshaken, and Scroggs, who
had been their idol a few hours ago, was in danger of being
torn in pieces by them. Although he contrived to escape in
safety to his house, he was assailed next»morning by broad-
sides, ballads sung in the streets, and libels in every imagina~
ble shape.
On the first day of the following term, he bound over in
open court the authors, printers, and singers of some of the
worst of them, and made the following speech : —
“IT would have all men know, that Iam not so revengeful in
my nature, nor so nettled with this aspersion, that I could not have
passed by this and more ; but the many scandalous libels that are
abroad, and reflect on public justice as well as upon my private
self, make it the duty of my place to defend one, and the duty I
owe to my reputation to vindicate the other. This is the pro-
perest occasion for both. If once our courts of justice come to be
awed or swayed by vulgar noise, it is falsely said that men are
tried for their lives or fortunes; they live by chance, and enjoy
what they have as the wind blows, and with the same certainty.
Such a base fearful compliance made Felix, willing to please the
people, leave Paul bound. The people ought to be pleased with
* Life of Guilford, i. 297.
' + “ By his zeal in the Protestant cause he gained for a while an universal
applause throughout the whole nation,” — Athene, iy. 116.
13
CHAP,
XIX.
A.D. 1680,
He pro-
cures the
acquittal of
Sir George
Wakeman.
Attacks on
Chief Jus-
tice
Scroggs.
Eloquent
speech by
him in his
own vindi-+
cation.
14
CHAP:
XIX.
A.D. 1680.
REIGN OF CHARLES II.
public justice, and not justice seek to please the people. Justice
should flow like a mighty stream; and if the rabble, like an unruly
wind, blow against it, the stream they made rough will keep its
course. I do not think that we yet live in so corrupt an age that
a man may not with safety be just, and follow his conscience; if
it be otherwise, we must hazard our safety to preserve our in-
tegrity. As to Sir George Wakeman’s trial, I am neither afraid
nor ashamed to mention it. I will appeal to all sober and under-
standing men, and to the long robe more especially, who are the
best and properest judges in such cases, for the fairness and equality
of my carriage on that occasion. For those hireling scribblers
who traduce me, who write to eat and lie for bread, I intend to
meet with them another way, for, like vermin, they are only
safe while they are secret. And let those vipers, those printers
and booksellers by whom they vend their false and braided ware,
look to it; they shall know that the law wants not power to punish
a libellous and licentious press, nor I resolution to put the law in
force. And this is all the answer fit to be given (besides a whip)
to those hackney writers and dull observators that go as they are
hired or spurred, and perform as they are fed. If there be any
sober and good men that are misled by false reports, or by sub-
tlety deceived into any misapprehensions concerning that trial or
myself, I should account it the highest pride and the most scorn-
ful thing in the world if I did not endeavour to undeceive them.
To such men, therefore, I do solemnly declare in the seat of jus-
tice, where I would no more lie or equivocate than I would to
God at the holy altar, I followed my conscience according to the
best of my understanding in all that trial, without fear, favour, or
reward, without the gift of one shilling, or the value of it directly
or indirectly, and without any promise or expectation whatso-
ever.* Do any think it an even wager, whether I am the greatest
villain in the world or not—one that would sell the life of the King,
my religion, and country, to Papists for money? He that says
great places have great temptations, has a little if not a false
heart himself. Let us pursue the discovery of the plot in God’s
name, and not baulk anything where there is suspicion on reason-
able grounds; but do not pretend to find what is not, nor count
him a turncoat that will not betray his conscience nor believe
incredible things. ‘Those are foolish men who think that an
* From this asseveration a suspicion arises of pecuniary corruption, but I
believe that Scroggs was swayed in this instance by a disinterested love of
raseality.
LIFE OF CHIEF JUSTICE SCROGGS.
acquittal must be wrong, and that there can be no justice without
an execution.” *
Many were bound over; but I do not discover more than
one prosecution brought to trial,—that against Richard
Radly, who was convicted of speaking scandalous words of
the Lord Chief Justice Scroggs, and fined 2002.
When the Earl of Castlemaine—the complaisant husband
of the King’s mistress — was brought to trial for being con-
cerned in the Plot, Scroggs was eager to get him off, still
despising popular clamour. Bedloe being utterly ruined in
reputation, Dangerfield was now marched up, as the second
witness, to support Oates. He had been sixteen times con-
victed of infamous offences; and, to render him competent, a
pardon under the great seal was produced. But the Chief
Justice was very severe upon him, saying, in summing up, to
the jury, “ Whether this man be of a sudden become a saint
because he has become a witness, I leave that to you to con-
sider. Now I must tell you, though they have produced two
witnesses, if you believe but one, this is insufficient. In
treason, there being two witnesses, the one believed, the other
disbelieved, may there be a conviction? I say, no. Let us
deal fairly and above board, and so preserve men who are
accused and not guilty.” The defendant being acquitted, the
Chief Justice was again condemned as a renegade.
He further made himself obnoxious to the charge of having
gone over to the Papists, by his conduct on the trial of Mrs,
Elizabeth Cellier, who, if she had been prosecuted while he
believed that the Government wished the Plot to be con-
sidered real, would unquestionably have been burnt alive
for high treason, but now was the object of his especial pro-
tection and favour. The second witness against her was
Dangerfield, who, when he was put into the box, before any
evidence had been given to discredit him, was thus saluted by
Chief Justice Scroggs : —
* We will not hoodwink ourselves against such a fellow as this,
that is guilty of such notorious crimes. A man of modesty, after
he hath been in the pillory, would not look a man in the face.
Such fellows as you are, sirrah, shall know we are not afraid of
* 7 St. Tr. 687—706. t Ibid. 1067—1112.
Acquittal
of the Earl
of Castle-
maine;
and of Mrs,
Cellier.
Dialogue
with Dan-
gerfield.
16
CHAP.
XIX,
A.D. 1680.
Ingenious
scheme to
extinguish
the liberty
of the
press.
REIGN OF CHARLES IT.
you. It is notorious enough what a fellow this is. I will shake
all such fellows before I have done with them.” Dangerfield:
** My Lord, this is enough to discourage a man from ever enter-
ing into an honest principle.” Scroggs, C.J: “ What? Do you,
with all mischief that hell hath in you, think to have it in a court
of justice ? I wonder at your impudence, that you dare look a
court of justice in the face, after having been made appear so
notorious a villain. Come, gentlemen of the jury, this is a plain
case; here is but one witness in a case of treason ; therefore lay
your heads together, and say not guilty.”
Mrs. Cellier was set at liberty, and Dangerfield was com-
mitted to occupy her cell in Newgate.*
When holding assizes in the country, he took every oppor-
tunity of proclaiming his slavish doctrines. Going the Oxford
Circuit with Lord Chief Baron Atkyns, he told the grand jury
that a petition from the Lord Mayor and citizens of London
to the King, for calling a parliament, was high treason.
Atkyns, on the contrary, affirmed “that the people might
petition the King, and, so that it was done without tumult,
it was lawful.” Scroggs, having peremptorily denied this, went
on to say that “the King might prevent printing and -pub-
lishing whatever he chose by proclamation.” Atkyns mildly
remarked, “that such matters were fitter for parliament, and
that, if the King could do this work of parliament, we were
never like to have parliaments any more.” Scroggs, highly
indignant, sent off a despatch to the King, stating the uncon-
stitutional and treasonable language of Chief Baron Atkyns.
This virtuous Judge was in consequence superseded, and re-
mained in a private station till he was reinstated in his office
after the Revolution.f
Before Scroggs was himself prosecuted and dismissed from
his office with disgrace, he swelled the number of his delin-
quencies by an attack on the liberty of the press, which was
more violent than any that had ever been attempted by the
Star Chamber, and which, if it had been acquiesced in, would
have effectually established despotism in this country. Here
he was directly prompted by the Government, and it is sur-
prising that this proceeding should so little have attracted
* 7 St. Tr. 1018—T1055. { 5 Parl. Hist. 309.
LIFE OF CHIEF JUSTICE SCROGGS.
the notice of historians who have dwelt upon the arbitrary
measures of the reign of Charles II. The object was to put
down all free discussion, and all complaints against misrule, by
having, in addition to a licenser, a process of injunction against
printing, — to be summarily enforced, without the interven-
tion of a jury, by fine, imprisonment, pillory, and whipping.
There was then in extensive circulation a newspaper called
“The Weekly Pacquet of Advice from Rome, or the His-
tory of Papacy,” which reflected severely upon the religion
now openly professed by the Duke of York and secretly
embraced by the King himself. In Trinity Term, 1680, an
application being made to the Court of King’s Bench on the
ground that this newspaper was libellous, Scroggs, with the
assent of his brother Judges, granted a rule absolute in the
first instance, forbidding the publication of it in future.* The
editor and printer being served with the rule, the journal was
suppressed till the matter was taken up in the House of
Commons, and Scroggs was impeached.
The same term, he gaye the crowning proof of his servility
and contempt of law and of decency. Shaftesbury, to pave the
way for the Exclusion Bill, resolved to prosecute the Duke
of York as a * Popish recusant.” ‘The heir presumptive to
the throne was clearly liable to this proceeding and to all the
penalties, forfeitures, and disqualifications which it threatened,
for he had been educated a Protestant, and, having lately
returned from torturing the Covenanters in Scotland, he was
in the habit of ostentatiously celebrating the rites of the
Romish religion in his chapel in London. An indictment
against him was prepared in due form, and this was laid
before the grand jury for the county of Middlesex by Lord
Shaftesbury, along with Lord Russell, Lord Cavendish,
Lord Grey de Werke, and other members of the country
party. This alarming news being brought to Scroggs while
sitting on the bench, he instantly ordered the grand jury to
attend in court. The bailiff found them examining the first
* « Die Mercurii proxima post tres septimanas Sancte Trinitatis Anno
32 Car. II. Regis, Ordinatum est quod Liber intitulat. The Weekly Pacquet
of Advice from Rome, or the History of Popery, non ulterius imprimatur vel
publicetur per aliquam personam quamcunque. Per Cur.”—8 Sé. Tr, 198.
VOL, II. Cc
17
CHAP.
SKS
A.D. 1680.
Scroggs
frustrates
the attempt
to indict
the Duke
of York as
a Popish
recusant by
discharging
the grand
jury.
June 16.
18
CHAP.
XIX.
A.D. 1680.
Charges
against
Scroggs
before the
King in
Council,
REIGN OF CHARLES II.
witness in support of the indictment; but they obeyed orders.
As soon as they had entered the court, the Chief Justice
said to them, ‘‘ Gentlemen of the grand jury, you are dis-
charged, and the country is much obliged to you for your
services.”
It would have been consolatary to us, in reading an account
of the base actions of Scroggs, if we could have looked for-
ward to his suffering on a scaffold like Tresilian, or dying
ignominiously in the Tower of London like Jeffreys. He
escaped the full measure of retribution which he deserved, but
he did not go unpunished.
There were two classes whom he had offended, of very
different character and power, — the witnesses in support of
the Popish Plot, and the Exclusionist leaders. The first be-
gan by preferring Articles against him to the King in Council,
which alleged, among other things, that at the trial of Sir
George Wakeman “ he did brow-beat and curb Dr. Titus
Oates and Captain Bedloe, two of the principal witnesses for
the King, and encourage the jury impannelled to try the
malefactors to disbelieve the said witnesses, by speaking of ©
them slightingly and abusively, and by omitting material
parts of their evidence: That the said Chief Justice, to ma-
nifest his slighting opinion of the evidence of the said Dr.
Titus Oates and Captain Bedloe in the presence of his most
sacred Majesty and the Lords of his Majesty’s most honour-
able Privy Council, did dare to say that Dr. Titus Oates and
Captain Bedloe always had an accusation ready against any
body: That the said Lord Chief Justice is very much ad-
dicted to swearing and cursing in his common discourse, and
to drink to excess, to the great disparagement of the dignity
and gravity of his office.”
It seems surprising that such charges from such a quarter,
against so high a magistrate, should have been entertained,
although he held his office during the pleasure of the Crown.
The probability is that, being in fayour with the Govern-
ment, it was considered to be the most dextrous course to
give him the opportunity of being tried before a tribunal by
which he was sure of being acquitted, in the hope that his
LIFE OF CHIEF JUSTICE SCROGGS.
acquittal would save him from the fangs of an enraged House
of Commons.
He was required to put in an answer to the Articles, and a
day was appointed for hearing the case. When it came on,
to give greater éclat to the certain triumph of the accused,
the King presided in person. Oates and Bedloe were heard,
but they and their witnesses were constantly interrupted and
stopped, on the ground that they were stating what was not
evidence, or what was irrelevant; and, after a very eloquent
and witty speech from the Chief Justice, in the course of
which he caused much merriment by comments on his sup-
posed immoralities, judgment was given that the complaints
against him were false and frivolous.
But Shaftesbury was not so easily to be diverted from his
revenge. On the meeting of parliament, he caused a motion
to be made in the House of Commons for an inquiry into the
conduct of Lord Chief Justice Scroggs in discharging the
Middlesex grand jury and in other matters. A committee
was accordingly appointed, which presented a report recom-
mending that he should be impeached. The report was
adopted by a large majority, and Articles of Impeachment
were voted against him. These were eight in number. ‘The
Jirst charged in general terms “ that the said William Scroggs,
Chief Justice of the King’s Bench, had traitorously and
wickedly endeavoured to subvert the fundamental laws, and
the established religion and government of the kingdom of
England.” The second was for illegally discharging the
grand jury, “ whereby the course of justice was stopped ma-
liciously and designedly, — the presentments of many Papists
and other offenders were obstructed,—and in particular a bill
of indictment against James Duke of York, which was then
before them, was prevented from being proceeded upon.”
The third was founded on the illegal order for suppressing the
Weekly Pacquet newspaper. The three following articles
were for granting general warrants, for imposing arbitrary
fines, and for illegally refusing bail. The seventh charged him
with defaming and scandalising the witnesses who proved the
Popish Plot. The last was in these words: “ VIII. Whereas
the said Sir William Scroggs, being advanced to be Chief
c 2
“a
19
CHAP.
XIX.
A.D. 1680,
He is ac-
quitted.
Nov. 23.
Proceed-
ings
against
him in the
House of
Commons,
Dec. 23.
20
CHAP.
XIX.
Articles of
impeach-
ment car-
ried up to
the Lords.
He is saved
by the
sudden dis-
solution of
parliament.
REIGN OF CHARLES Ii.
Justice of the Court of King’s Bench, ought, by a sober, grave,
and virtuous conversation, to have given a good example to the
King’s liege people, and to demean himself answerable to the
dignity of so eminent a station; yet, on the contrary thereof,
he doth, by his frequent and notorious excesses and de-
baucheries, and his profane and atheistical discourses, daily
affront Almighty God, dishonour his Majesty, give coun-
tenance and encouragement to all manner of vice and wicked-
ness, and bring the highest scandal on the public justice of
the kingdom.”
These articles were carried to the House of Peers by
Lord Cavendish, who there, in the name of all the Commons
of England, impeached Chief Justice Scroggs for “ high
treason, and other high crimes and misdemeanors.”
The articles being read, the accused, who was present,
sitting on the Judge’s woolsack, was ordered to withdraw.
A motion was then made that he be committed; but the
previous question was moved and carried, and a motion for
an address to suspend him from his office till his trial should
be over was got rid of in the same manner. He was then
called in, and ordered to find bail in 10,0002, to answer the
articles of impeachment, and to prepare for his trial.
Luckily for him, at the end of three days the parliament
was abruptly dissolved. It would have been difficult to make
out that any of the charges amounted to high treason ; but in
those days men were not at all nice about such distinctions,
and a dangerous but convenient doctrine prevailed, that,
upon an impeachment, the two Houses of Parliament might
retrospectively declare anything to be treason, according to
their discretion, and punish it capitally. At any rate, con-
sidering that the influence of Shaftesbury in the Upper House
was so great, and that Halifax and the respectable anti-
exclusionists could not have defended or palliated the infamous
conduct of Scroggs, had his case come to a hearing, he could
not have got off without some very severe and degrading
punishment.
Although he escaped a judicial sentence, his character was
so blown upon, and juries regarded him with such horror
and were so much inclined to go against. his direction, that
LIFE OF CHIEF JUSTICE SCROGGS.
the Government found that he would obstruct instead of
facilitating their designs against the Whig leaders, and that
it was necessary to get rid of him. After the dissolution of
the Oxford parliament the Court was completely triumphant,
and, being possessed for a time of absolute power, had only
to consider the most expedient means of perpetuating des-
potism, and wreaking vengeance on the friends of freedom.
Before long, Russell, Sydney, and Shaftesbury were to be
brought to trial, that their heads might pay the penalty of
the Exclusion Bill; but if Scroggs should be their judge, any
jury, whether inclined to Protestantism or to Popery, would
probably acquit them.
Accordingly, in the beginning of April, to make room for
one who, it was hoped, would have more influence with juries,
and make the proceedings meditated against the City of
London and other corporations pass off with less discredit,
while he might be equally subservient, Sir William Scroggs
was removed from his office of Chief Justice of the King’s
Bench. So low had he fallen, that little regard was paid to
his. feelings, even by those for whom he had sacrificed his
character and his peace of mind; and, instead of a “ resigna-
tion on account of declining health,” it was abruptly announced
to him that a supersedeas had issued, and that Sir FRANCIS
PEMBERTON, who had been a puisne judge under him, was
to succeed him as Chief Justice.
His disgrace caused general joy in Westminster Hall, and
over all England; for, as Jeffreys had not yet been clothed
in ermine, the name of Scroggs was the by-word to express
all that could be considered loathsome and odious in a judge.
He was allowed a small pension, or retired allowance,
which he did not long enjoy. When cashiered, finding no
sympathy from his own profession, or from any class of the
community, he retired to a country house which he had pur-
chased, called Weald Hall, near Brentwood, in Essex. Even
here his evil fame caused him to be shunned. He was consi-
dered by the gentry to be without religion and without honour;
while the peasantry, who had heard some vague rumours of
his having put people to death, believed that he was a mur-
derer, whispered stories of his having dealings with evil spirits,
c 3
21
CHAP:
XIX,
A.D. 1681.
Reasons for
cashiering
‘ Oo
him,
He is
cashiered.
He retires
into the
country,
22
CHAR:
XIX.
A.D. 1683.
Tis death.
His cha-
racter.
REIGN OF CHARLES II.
and took special care never to run the risk of meeting him
after dark. His constitution was undermined by his dissolute
habits ; and, in old age, he was still a solitary selfish bachelor.
After languishing, in great misery, till the 25th day of
October, 1683, he then expired, without a relation or friend
to close his eyes. He was buried in the parish church of
South Weald; the undertaker, the sexton, and the parson of
the parish, alone attending the funeral. He left no descend-
ants; and he must either have been the last of his race, or his
collateral relations, ashamed of their connection with him,
had changed their name, — for, since his death, there has been
no Scroggs in Great Britain or Ireland. The word was long
used by nurses to frighten children; and as long as our
history is studied, or our language is spoken or read, it will
call up the image of a base and bloody-minded villain. With
honourable principles, and steady application, he might have
been respected in his lifetime, and left an historical reputation
behind him. ‘ He was a person of very excellent and nimble
parts,”* and he could both speak and write our language
better than any lawyer of the 17th century, Francis Bacon
alone excepted. He seems to have been little aware of the
light in which his judicial conduct would be viewed; for it
is a curious fact that the published Reports of the State
Trials at which he presided were all revised and retouched by
himself; and his speeches, which fill us with amazement and
horror, he expected would be regarded as proofs of his spirit
and his genius. Thank Heaven, we have no such men in
our generation: it is better for us to contemplate dull, moral
mediocrity, than profligate eccentricity, however brilliant it
may be. t |
Scroggs may be considered as having been of some use to
his country, by making the character of a wicked judge so
frightfully repulsive that he may have deterred many from
* ‘Wood.
t One of the charges against him was, that he made a traffic in selling to
booksellers the exclusive right of publishing trials before him. It was said he
bargained to receive 150 guineas for the Report of Sir George Wakeman’s
trial, and 100 guineas more if it was not finished in one day.
¢ See 8 St. Tr. 163—224,
LIFE OF CHIEF JUSTICE SCROGGS.
giving way to his bad propensities. Dean Swift says, “I
have read somewhere of an Eastern king who put a judge to
death for an iniquitous sentence, and ordered his hide to be
stuffed into a cushion, and placed upon the tribunal for the
son to sit on, who was preferred to his father’s office. I fancy
such a memorial might not have been unuseful to a son of
Sir William Scroggs; and that both he and his successors
would often wriggle in their seats as long as the cushion
lasted.” *
* ‘Drapier’s Letters, No. V. See 2 Shower, 155,; 1 Ventris, 329. 354.; Macph.
State Papers, i. 106.
23
CHAP.
XIX.
24
CHAP.
XX.
Glance at
the career
and cha-
racter of
Sir Francis
Pember-
ton,
REIGN OF CHARLES II,
CHAPTER XX.
LIFE OF LORD CHIEF JUSTICE PEMBERTON.
THE career of our next Chief Justice is more chequered by
extraordinary vicissitudes than that of any legal dignitary
mentioned in the annals of Westminster Hall. While yet a
youth, he had wasted his substance by riotous living, and
incurred enormous debts. Without education, without cha-
racter, without friends, a slave to the worst propensities and
habits, he was deprived of his liberty and became the asso-
ciate of the most profligate of mankind. As the law then
stood, there were no means of ever obtaining his liberation
without satisfying the demands of his creditors, and there
seemed a certainty that he must sink deeper and deeper in
misery and in depravity till he expired in his cell. But a
prison served him for a school, for a university, and for an
inn of court. Here he became an elegant scholar, a profound
lawyer, and qualified to run the race of honourable rivalry
with those who had taken full advantage of regular tuition
and training. By his own exertions, while still a prisoner,
he not only maintained himself creditably, but made an ar-
rangement for the discharge of all his pecuniary engagements.
Starting at the bar, though he was at first taunted as a “ gaol-
bird,” he was soon run after as a distinguished advocate; and
he attained the highest honours of his profession. When he
was placed on the bench and it might have been thought
that his adventures were at an end, the remarkable strokes
of adverse and auspicious fortune to which he was destined
were only beginning. Thrice was he removed from high
judicial situations, which he filled with credit, by the rude
hand of arbitrary power. Again and again he recommenced
pleading causes for clients in the courts in which he had
presided. After trying Lord Russell, he was counsel for the
Seven Bishops. The Revolution brought him no repose.
LIFE OF CHIEF JUSTICE PEMBERTON.
Having been punished, by Charles II. and James II., for
imputed judicial independence, and supposed leaning to liberal
principles, he was sent to Newgate by the Convention Par-
liament on the charge of favouring despotism and violating
the privileges of the House of Commons. His character,
likewise, from “its varied and delicate lights and shadows,
presents an interesting subject for contemplation. We be-
come a little tired of Hale, from his uniform goodness; and
we are sure that, on every occasion, Scroggs will show himself
sordid and cruel. There being no struggle in the mind of
either of them, we may at last regard the one with apathy,
and the other with unmixed disgust. Pemberton, when he
entered public life, felt a passion for preferment, by which he
was sometimes led to do what was wrong. But he hada
conscience: when he transgressed the line of rectitude he
was visited by remorse; and, though he yielded to com-
pliances which he condemned, yet, rather than recklessly
follow the example of some unscrupulous judges who were
his contemporaries, he was willing to sacrifice the objects
which were dearest to his heart. Thus he might have been
addressed : —
. © Thou wouldst be great ;
Art not without ambition; but without
The illness should attend it. What thou wouldst highly,
That wouldst thou holily ; wouldst not play false,
And yet wouldst wrongly win.”
He was descended from the Pembertons of Pemberton in
the county of Lancaster. His father, who was of a junior
branch of that family, had been a merchant in London, and
had died while still a young man, leaving a considerable for-
tune to be divided among five infant children. These were
all carried off by the small-pox except Francis, in whom,
therefore, the whole property centred. It would have been
well for him if his mother had died at the same time; for
she was a silly woman, and spoiled him by excessive in-
dulgence. After her husband’s death, she took a house in
the town of St. Alban’s, where she had some relations; and
young Frank was put to school there. His parts were very
lively, and he could learn much in a little time ; but he was
sickly, and, under pretence of nursing him, she kept him
-
His origin
and edu-
cation,
26
CHAP.
XX.
A.D. 1640.
At Cam-
bridge,
He is en-
tered at the
Temple,
His profli-
gate mode
of life,
A.D. 1646,
He wastes
his patri-
mony.
REIGN OF CHARLES II.
almost constantly idle at home. At fifteen he could read
and write pretty well, and had picked up a little smattering
of Greek and Latin. He was then sent to Emanuel College,
Cambridge *, and there he remained above four years; but,
although he contrived to take the degree of B. A., it was
remarked by his tutor, Dr. Benjamin Whitchcote, that, “ not-
withstanding all the pains taken upon him, from his giddiness,
and the difficulty of fixing his attention, when he left Cam-
bridge he had little more knowledge of books than he brought
with him from St. Alban’s.”
To finish his education it was resolved to send him to an
Inn of Court; and on the 14th of October, 1645, he was
admitted a member of the Honourable Society of the Inner
Temple.t There was no expectation of his following the
law as a profession; but, the civil war being extinguished,
young men of family and fortune again attended “ Readings ”
and ‘‘ Moots,” that they might acquire enough of law to
qualify them to manage their estates and to act as Justices
of the Quorum.
While at Cambridge, although Pemberton had been idle
and listless, his morals had remained uncontaminated ; but
he now made the acquaintance of a set of young men who
initiated him in all sorts of debauchery. Several of them had,
for a short time, carried arms for the King, and thought that
they could still safely show their hatred of the Roundheads
by outvying the licentiousness which had distinguished the
Cavaliers when they were serving in the field. The follow-
ing year Pemberton was of age, and, according to his father’s
will, he came into possession of his fortune. This was
speedily known to his dissolute companions, some of whom
were in great pecuniary difficulties and driven to live upon
their wits. Besides taverns, theatres, and other such places
of dissipation, they carried him to gaming-houses, engaged
him in deep play, and, in the course of eighteen months,
stript him of every Carolus he had in the world. More than
this, they not only led him to contract large debts for clothes,
* Admitted 12th August, 1640.
+ He is described as son of Radulph Pemberton, of St. Alban’s in the county
of Herts, Esq.
LIFE OF CHIEF JUSTICE PEMBERTON
wine, horses, &c., for his own use, but to become surety for
them to tradesmen and money-changers. In consequence,
his mortgaged lands were foreclosed or taken under elegits ;
judgements being entered upon the bonds and statutes which
he gave to his creditors, all his moveables were swept away
under fi. fas. ; and at length a relentless Jew, who had lately
returned into England, from which the race had been ba-
nished since the time of Edward I., sued out a ca. sa., against
him for a large sum of money borrowed to pay a gaming debt,
and shut him up in the Fleet. é
He had not been sober for many weeks, and it was some
time before he could fully understand where he was and
what had befallen him. Amidst the squalor which sur-
rounded him, he was surprised to find loud revelry going
forward, and he recognised faces that he had seen in the
haunts of vice which he had been in the habit of frequenting.
He was obliged to pay the garnish which they demanded of
him; but he resolutely refused to join in their orgies. He
awoke, as it were, from a dream, and was at first almost
entirely overpowered by the horrors of his situation. He
used afterwards to relate “ that some supernatural influence
seemed to open his eyes, to support him, and to make a new
man of him.” He contrived to get a small dismal room for
his own use without a chum, and in this he shut himself up.
He tasted nothing but the bread and water which were the
prison allowance; and his share of some charitable doles
arising from fees on the last day of term, and other such
sources, he gave away to others. What we have chiefly
to admire is, that he nobly resolved to suppply the defects
of his education, — to qualify himself for his profession, —
to pay his debts by industry and economy, —and to make
himself respected and useful in the world. The _ resolu-
tion was formed in a hot fit of enthusiasm, but it was per-
severed in with cool courage, unflinching steadiness, and
brilliant success. He was able to borrow books by the
kindness of a friend of his father’s who came to visit him.
Bitterly regretting the opportunities of improvement which
he had neglected at school and at college, he devoted a cer-
tain number of hours daily to the classics and to the best
27
CHAP.
XX.
A.D. 1647
— 1650.
He is con-
fined for
debt in the
Fleet.
His re-
formation.
28
CHAP;
XX.
A.D. 1650
—1652.
REIGN OF CHARLES II.
English writers — taking particular delight in Shakspeare’s
plays, although the acting of them had ceased, and they were
not yet generally read. The rest of his time he devoted to
the Year-Booxs, to the more modern Reports, to the
Abridgments, and to the compiling of a huge Common-place
Book for himself, which might have rivalled Brooke, Rolle,
and Fitzherbert. His mode of life was observed with amaze-
ment and admiration by his fellow prisoners, who, knowing
that he was a Templar, and that he was studying law night
and day, concluded that he must be deeply skilled in his
profession, and from time to time came to consult him in
their own affairs, — particularly about their disputes with
their creditors.* He really was of essential service to
them in arranging their accounts, in examining the process
under which they were detained, and in advising applications
to the courts for relief. They, by and by, called him the
“Councillor” and the “ Apprentice of the Law,” f and
such as could afford it insisted on giving him fees for his
advice. With these he bought books which it was necessary
that he should always have by him for reference. ‘To add to
his fund for this purpose, he copied and he drew law papers
for the attorneys, receiving so much a folio for his perform-
ances. By these means he was even able to pay off some of
the smallest and most troublesome of his creditors. Burnet,
whose love of the marvellous sometimes betrays him into
exaggeration, although his sincerity may generally be relied
upon, says that Pemberton lay many years in gaol;”t but
* The Fleet was then by far the most populous civil prison, for it not only
contained the debtors of the Court of Common Pleas, but all who were com-
mitted by the Court of Chancery.
} This used to be the designation of barristers till they were made serjeants.
+ The passage is curious: ‘ His rise was so particular, that it is worth the
being remembered. In his youth, he mixed with such lewd company, that he
quickly spent all he had, and ran so deep in debt, that he was cast into a gaol,
where he lay many years ; but he followed his studies so close in the gaol, that he
became one of the ablest men of his profession.” — Own Times, ii. 144. Roger
North, with much quaintness, adheres closer to the truth in his slight sketch of
Pemberton: “ This man’s morals were very indifferent; for his beginnings
were debauched, and his study and first practice in the gaol. For having been
one of the fiercest town rakes, and spent more than he had of his own, his case
forced him upon that expedient for a lodging ; and there he made so good use
of his leisure, and busied himself with the cases of his fellow collegiates, whom
he informed and advised so skilfully, that he was reputed the most notable
fellow within those walls; and, at length, he came out a sharper at the law.” —
Life of Guilford, ii. 123,
LIFE OF CHIEF JUSTICE PEMBERTON.
according to the best information I have been able to obtain,
the period did not exceed five years. He obtained his dis-
charge by entering into a very rational arrangement with his
principal creditors. After pointing out to them the utter im-
possibility of their being ever satisfied while he remained in
custody, he explained to them the profitable career which was
before him if he could recover his liberty, and he assured
them of his determined purpose to pay them all every
farthing that he owed them the moment that it was in his
power to do so. Accordingly the Jew, after stipulating for
compound interest, and taking a fresh security, signed a
warrant for entering satisfaction, and, all the detainers being
withdrawn, Pemberton could again see the green fields and
breathe the pure air of heaven. *
The creditable employment of his time in prison beame
well known in the Inner Temple Hall, and he was welcomed
there very cordially. Imprisonment for debt was by no
means so degrading then as we are apt to suppose. Even so
late as the reign of George III. a great leader of the Western
Circuit was often obliged to avail himself of his privilege to
be free from arrest; and I myself have conversed with men
who remembered an eminent conveyancer, and an eminent
special pleader, both continuing in very extensive business
while confined in the King’s Bench prison. Pemberton’s
errors were regarded as more yenial from the recollection of
his extreme youth when his debts had been contracted, and of
the manner in which he had been led astray by bad company.
Having kept the requisite number of terms, and done all
his exercises, on the 27th of November 1654 he was called
to the bar.t Although inclined to monarchical principles,
* At this time there were no “ Rules of the Fleet,” or district round the
prison considered to be part of it; and all committed to it were kept in salvd
et arctd custodid. This was not the first instance of legal studies going on within
its walls. The famous treatise called FLeTa was written by a lawyer confined in
the Fleet in the reign of Edward I,
+ Books of Inner Temple — from which it appears that he was called to the
bench on the 5th of February, 1671, and was elected Reader on 21st of January
1674, His aims are in the Inner Temple Hall, with the following inscription:
“ Franciscus Pemberton At
Serviens ad legem. Elect.
Lect. Quadra A° 1674.”
I am indebted for this and much other valuable information to the kindness of
Mr. Martin, the sub-treasurer of the Inner Temple.
29
CHAP.
XX.
A.D. 1652
—1654.
He makes
an arrange-
ment with
his credi-
tors and is
discharged
out of
prison,
He is
called to
the bar,
His suc-
cess.
He is ap-
pointed
“ Devil” to
the Attor-
ney Ge-
neral.
A.D. 1668.
He is made
a Ser:
jeant.
Contest
about him
between
the two
Houses of
Parlia-
ment,
REIGN OF CHARLES Il.
he did not scruple to take the oath “ to be true to the Com-
monwealth,” and he practised successively under the repub-
lican Chief Justices Rolle, Glyn, and Newdigate.
His rise into business was rapid. He first got mto prac-
tice in the Palace Court at Westminster, —next in the Court
of King’s Bench, —and before he had been seven years at
the bar he had discharged all his debts, including principal
and compound interest for the Jew — whom he now regarded
as his best benefactor.
Soon after the Restoration he became intimate with Sir
Jeffrey Palmer, the Attorney General, and was employed as
his “ Devil” to prepare indictments and argue demurrers. In
a few years he was succeeded in this office by North (after-
wards Lord Keeper Guilford); but he still held briefs in all
state prosecutions as counsel for the Crown. He was al-
lowed to conduct the trial of the apprentices charged with
high treason because they had pulled down some disorderly
houses in Moorfields, the Attorney General himself being
ashamed to appear in it. Pemberton contented himself
with a brief statement of the facts, leaving to Lord Chief
Justice Kelynge the odium and the ridicule of laying down
the law.*
In Easter Term, 1675, he was called to the degree of
Serjeant-at-law. From this time he seems to have been by
far the most distinguished advocate practising at the English
bar. He was leading counsel for the appellants in the famous
appeals from the Court of Chancery to the House of Lords, in
which members of the House of Commons were respondents.
Now arose a dispute between the two Houses for the pos-
session of his body, which had nearly ended in civil war.
In spite of a resolution of the House of Commons that it
would be a breach of their privileges for any lawyer to act
in these appeals, Serjeant Pemberton, with becoming spirit,
appeared at the bar of the House of Lords and argued stoutly
for his clients. ‘The Commons therefore voted that he had
been guilty of a breach of their privileges, and ordered him
to be taken into custody by the Serjeant-at-arms ; but as
* 6 St. Tr. 879.; ante, p. 508.
LIFE OF CHIEF JUSTICE PEMBERTON.
soon as the order had been executed, the Lords passed a
counter-resolution that it was a breach of their privileges to
molest him for doing his duty under their sanction, — and
ordered the officer of their house, the Usher of the Black
Rod, to set him at liberty. It so happened, that the two
champions met in the Court of Requests when the Serjeant-
at-arms was conducting Pemberton to safer custody. The
Usher of the Black Rod, with his attendants, gave the as-
sault on the Serjeant-at-arms, who fled ignominously, and
Pemberton was the prize of the victors. The Commons, in
a fury, passed a violent resolution against the pusillanimity
of their officer, and ordered that the man who had defied
their power should be immediately recaptured. Serjeant
Pemberton, not aware of this proceeding, and thinking
that the danger was over, returned next morning to the
practice of his profession in the Court of Common Pleas;
but Speaker Seymour, who had been deeply mortified by
the abasement of the assembly over which he presided, as he
walked up Westminster Hall to occupy the chair, spied Ser-
jeant Pemberton wearing his coif and party-coloured robes,
—ran up to him, seized him, and, with the assistance of some
messengers who were following in his train, lodged him in
Little-Ease, the prison of the House of Commons, — from
whence he was transferred to the Tower of London. The
Lords next made an order on the Lieutenant of the Tower,
requiring him to discharge the prisoner, and, when this was
disobeyed, resorted to the novel expedient of issuing a writ
of habeas corpus for bringing his body to their bar. The
Commons, on the other hand, resolved “ that no person com-
mitted by them for breach of privilege ought, by writ of
habeas corpus or any other authority ~whatever, be made to
appear in the House of Lords; that the writ of habeas corpus
issued by the Lords for bringing up the body of Serjeant
Pemberton was insufficient and illegal; and that they would
protect their Serjeant-at-arms, the Lieutenant of the Tower,
and all others who should obey the law by conforming to
their orders.”
Shaftesbury, who had brought about this quarrel on pur-
pose to prevent the passing of the Test Act, had gained his
32
CHAP,
XX,
4.D. 1675
— 1679.
He is
placed on
the Bench
as a Puisne
Judge.
April 30.
1679.
REIGN OF CHARLES II.
object. The next step would have been a battle-royal be-
tween the members of the two Houses, and, notwithstanding
the disparity of numbers on the side of the Lords, they would
have had powerful assistance from the mob, who on this occa-
sion approved of their proceedings. As the only means of
obviating so great a calamity, the King suddenly put an end
to the session by a prorogation, and Serjeant Pemberton was
set at liberty. It was allowed that during the whole affair
he had conducted himself with perfect propriety, and he now
stood very high in public estimation.*
Although he felt a great desire for political advancement,
he would not enter the House of Commons, and he could not
make up his mind boldly to join either of the contending par-
ties. He highly disapproved of the profligate measures of the
CaBaL, and the succeeding administrations were little more to
his mind; but he considered Shaftesbury, the leader of the
patriots, as the most unprincipled statesman of the times, and
he would sooner have died in obscurity than enlist under his
banner. On the contrary, he professed a respect for the Earl
of Danby, and he was loud in bestowing praise on Lord Chan-
cellor Nottingham, who had proved himself the reformer, or
rather founder, of our Equity code.
With such scruples and such moderation, there seemed as
yet little chance of his ever being made a Chief Justice in
those violent times; but, enjoying much reputation as a
lawyer, and having given no offence to either side, there was
little surprise expressed when he was made a Puisne Judge
of the King’s Bench, and was knighted. The object of his
promotion probably was to support the dignity of that Court
which had been very much lowered by the ignorance and
brutality of Chief Justice Scroggs.
Sir Francis gave satisfaction both as a Civil and Criminal
Judge. In the former capacity, he caused some grumbling
among the old stagers by showing, as they alleged, too little
respect for precedent and authority; but he was deeply
versed in jurisprudence as a science, and he thought it better
to be governed by a right principle than by a wrong decision.
He sat both in the King’s Bench and at the Old Bailey, on
* 6 St. Tr. 1121—1188,
LIFE OF CHIEF JUSTICE PEMBERTON.
the trial of the principal persons said to be implicated in the
Popish Plot.
33
CHAP.
XX,
Sometimes he gently interfered to mitigate the ferocity of . | j679,
his Chief, —as when he prevailed in having a chair placed
for a prisoner at the bar who was unable to stand*; and
when he got off a bookseller, convicted of publishing a libel,
with fine, imprisonment, and pillory, — whom Scroggs wished
likewise to have whipped publicly at the cart’s tail.t But he
never took a bold part in seeking to discredit false witnesses
and to save innocent lives. He thought that there was some
foundation for the story of the Popish Plot, although it might
be greatly exaggerated. or this reason, he would not join
Scroges when that miscreant, to please the Government,
suddenly wheeled round, and represented Oates and Bedloe
as evil spirits, after having hailed them as guardian angels.
Thus he gave mortal offence, not only to Scroggs personally,
but to the Government, and in less than two years from the
time of his appointment he was angrily dismissed.
He returned to the bar, and practised in the Common
Pleas before Lord Chief Justice North. Says Roger, —
** However some of his brethren were apt to insult him, his
Lordship was always careful to repress such indecencies ;
and not only protected, but used him with much humanity :
for nothing is so sure a sign of a _ bad breed as insulting over
the Hentet §
He immediately recovered his practice, and was in higher
estimation than ever. But, with his usual caution, he re-
. frained from taking part in the tremendous struggle which
now arose respecting the exclusion of the Duke of York from
the throne; saying, “that it was the part of a good subject
to respect hereditary right, and to leave any question for
altering hereditary succession to the King and the Par-
liament.”
On his leaving the King’s Bench, that court fell into
cay pats ay StS + Ibid. 932.
¢ Burnet says that “he was turned out entirely by Scroggs’s means; ” but
offence was taken by the ministers, that he did not sufficiently run at the Popish
Plot, which the King now ventured openly to ridicule.
§ Life of Guilford, ii. 125. ‘Tbe biographer, with his usual inaccuracy, refers
to Pemberton’s second return to the bar after Guilford, holding the great
seal, had ceased to preside in the Common Pleas.
VOL, II. D
He is dis-
placed, and
returns to
the bar.
Feb. 17.
1680.
34
CHAP.
XX.
A.D. 1681.
He is of-
fered the
office of
Chief Jus-
tice of the
King’s
Bench.
After much
hesitation
he accepts
it.
REIGN OF CHARLES II.
deeper and deeper disrepute; and, that the state prosecutions
meditated after the King’s triumph on the dissolution of
the Oxford parliament might be carried on with any chance
of success, it was indispensably necessary that a new Chief
Justice should be substituted in the place of Scroggs.
After long deliberation and doubt, it was resolved to offer
the place to Sir Francis Pemberton. Much reliance was
placed on his gratitude if he should receive so high a fa-
vour; and it was hoped that his fair character might insure
him extraordinary weight with juries. On receiving Lord
Nottingham’s letter, announcing the King’s commands, his
perplexity was greater than his pleasure. He was not
ignorant that Fitzharris’s trial for high treason was pending ;
that it involved an important question of privilege between
the Crown and the House of Commons; that it was sure to
be followed by others in which the King was passionately
eager to succeed; and that the Whigs against whom they
were to be directed, although at present prostrate, were still
the heads of a powerful party. He saw at a glance the
delicate and difficult situations in which, as the first Criminal ©
Judge of the land, he was sure to be placed; dismissal
threatening him on one hand, impeachment on the other.
Knowing himself, he dreaded the struggles in his own breast, —
his want of moral courage, —and the peril of his doing some-
thing dishonourable, of which he might for ever after repent.
But to renounce the glory after which he had so long
aspired, of having his name enrolled among the Chief Justices
of England,—to lose the opportunity of making himself a
name as a great magistrate, —to forego the hope of being able
to amend the administration of the law, by enlightening and
softening the Government, which, as it was now strong,
might easily afford to be merciful, — while he might be
obscurely wrangling at the bar with brother serjeants, to
see an unprincipled rival grasp the preferment!— He sat
down, wrote an acceptance, and on the first day of Easter
Term, 1681, he was installed in the office with the usual
solemnities. *
* 2 Shower, 159.; 1 Ventris, 354.
LIFE OF CHIEF JUSTICE PEMBERTON.
He was hardly warm in his seat, when Fitzharris’s trial for
high treason came on before him; and although he had been
promoted chiefly that he might conduct it with partiality, he
finished it to the King’s entire satisfaction, and without any
damage to his own character.
Fitzharris was a consummate scoundrel, who had offered
himself as a witness to both parties, who had deceived both
parties, and whom both parties had wished to hang;—the
courtiers, by indictment for high treason, according to the
course of the common law,—the exclusionists, by parliamentary
impeachment. At the Oxford Parliament, the impeachment
was voted by the Commons, and rejected by the Lords; and
two days afterwards came the dissolution.
In the month of April following, the Attorney General
prepared a bill of indictment for high treason, to be presented
to the grand jury of the county of Middlesex. In charging
the grand jury, the Chief Justice said, “ You ought not, and
cannot, take any notice of any votes of the House of
Commons. You are sworn to inquire of the matters given
you in charge. By the opinion of all the Judges you are
bound to find a true bill, if there be evidence enough before
you to prove the charge.”
The prisoner having afterwards pleaded the pendency of
the impeachment in abatement, by way of showing that the
Court of King’s Bench had not jurisdiction to try him, and
the Attorney General having demurred, the question was
argued at prodigious length. One Judge was inclined in
favour of the plea, but it was overruled, Pemberton merely
saying, “ My brother Jones and my brother Raymond agree
with me that it is bad.”
Upon the merits, a strong case was made out against
Fitzharris on his own confessions, for he had pretended to be
an accomplice in the Popish Plot, and his scheme had been to
make money by falsely accusing himself and others. It was
likewise proved against him that he had printed a pamphlet
advising that the King should be assassinated. He repre-
sented that he had been employed as a spy by the Govern-
ment to distribute it among obnoxious persons, who were
to be apprehended with copies of it in their pockets; and he
D 2
35
CHAP.
XX.
A.D. 1681,
He tries
Fitzharris
for high
treason.
36
‘CHAP.
XX.
A.D. 1681.
He tries
the Roman
Catholic
Primate of
Ireland.
REIGN OF CHARLES II.
called as his witness the Duchess of Portsmouth, who acknow-
ledged that the King had given him money, although she
swore that it was purely as a gratuity. Fitzharris was con-
victed and executed.
The trial was by no means creditable to any of those who
were concerned in it; but I cannot say that any peculiar
blame was imputable to Chief Justice Pemberton, for, during
the whole proceeding, he perfectly preserved his temper, he
laid down no bad law, and he cannot be accused of having
perverted the facts. Yet he must have had a suspicion that
the case, apparently made out for the Crown, was founded on
collusion and artifice; and, although he so managed the trial
as to escape public censure, his recollection of it must have
caused him a pang for the rest of his days.*
In the next important case which was tried before him
he cannot be said to have violated the law, but his conduct
was discreditable to him and to his country. The most
Reverend Dr. Oliver Plunket, titular Archbishop of Armagh,
and Primate of the Roman Catholic Church in Ireland, a
man of splendid abilities, profound learning, unblemished life,
genuine piety, and, what is more to the purpose, of un-
questionable loyalty, — who was not only venerated by those
of his own religious persuasion, but, having under four suc-
cessive Lord Lieutenants exerted himself to preserve the
peace of the country and to foster English connection, was
respected by all enlightened Protestants,—had been accused of
being engaged in an Irish Popish plot, which was invented in
imitation of that which had enjoyed such prodigious success
in England. Instead of assassinating the King, burning
London, &c., on which Oates and Bedloe had often dilated,
their associates imputed to the Irish Catholic Primate that
he had invited a French army to land at Carlingford, that he
had enroiled and trained 70,000 native Irishmen to join it, and
that, with the combined force, all Protestants in the island
were to be extirpated, and Ireland was to be created into an
independent Catholic state. There were absurdities and im-
possibilities in this plan so palpable, that no one, with local
knowledge upon the subject, could have believed in its
existence; and the prelate must have been safe in the hands
* 8 St. Tr. 245-426,
LIFE OF CHIEF JUSTICE PEMBERTON.
of any Irish jury. Therefore, —under an English act of par-
lament, passed in the reign of Henry VIII., which gave a
right to try in England high treason committed in any of the
dominions of the Crown, — after he had been confined some
months in Dublin, he was brought over to London in bonds,
and lodged in Newgate. A prosecution for high treason was
then commenced against him before the Court of King’s
Bench at Westminster.
On his arraignment, he pointed out the extreme hardship
and injustice of being carried away from his native land, and
brought to be tried among strangers, who were not only
ignorant of his character, but were very imperfectly acquainted
with localities, circumstances, and customs, upon which the
credibility of the witnesses against him must greatly depend,
and who might have a strong prejudice against him, his
country, and his religion : —
Pemberton, C.J.: ‘Mr. Plunket, you shall have as fair a trial
as if you were in Ireland. You are here by a statute not made
on purpose to bring you into a snare, but an ancient statute, and
not without precedents of its having been put in execution before
your time ; for your own country will tell you of O’Roorke and
several others that have been arraigned and condemned here for
treason done there. Your trial shall be by honest persons ac-
cording to the laws which obtain in this kingdom.”
The Archbishop prayed that his trial might be postponed
for ten days, because, by reason of adverse winds, his wit-
nesses had not arrived; but he was told by the Chief Justice
that a longer time had been allowed him to prepare for trial
than was usual in such cases. ‘Thus commenced the address
of Sir Robert Sawyer, the Attorney General: — “ May it
please your Lordships, and you, gentlemen of the jury, the
character this gentleman bears, as primate under a foreign
and usurped jurisdiction, will be a great inducement to you
to give credit to that evidence which we shall produce before
you to prove his guilt. He obtained this very preferment
upon a promise to raise 60,000 men in Ireland for the Pope’s
service, to settle Popery there, and to subvert the govern-
ment.” And in the same strain he continued, without any
check from the bench. It was in vain that the Archbishop
DS
37
CHAP:
XX.
A.D. 1681.
38
CHAP.
XX.
A.D. 1681.
REIGN OF CHARLES II.
pointed out the utter impossibility of a French army being
landed at Carlingford, and the preposterous nature of the
charge that he had drilled 70,000 armed men, as he had only
used spiritual weapons against impiety and vice. The fatal
verdict being recorded, Chief Justice Pemberton thus pro~
nounced sentence : —
“ Look you, Mr. Plunket, you have been here indicted of a very
great and heinous crime —the greatest and most heinous of all
crimes — and that is, high treason; and, truly, yours is of the
highest nature; it isa treason, in truth, against God and your
King, and the country where you lived. You have done as much
as you could to dishonour God in this case; for the bottom of your
treason was, your setting up your false religion, than which there
is not anything more displeasing to God or more pernicious to
mankind, a religion which is ten times worse than all the hea-
thenish superstitions, the most dishonourable and derogatory to God
and his glory of all religions or pretended religions whatsoever,
for it undertakes to dispense with God’s laws, and to pardon the
breach of them; so that, certainly, a greater crime there cannot
be committed against God, than for a man to encourage its propa-
gation. Ido now wish you to consider, that you are near your
end. It seems you have lived in a false religion hitherto ; but it
is not too late at any time to repent. J trust you may have the
grace to do so. In the mean time, there is no room for us to grant
you any kind of mercy, though I tell you we are inclined to pity
all malefactors.” Archbishop: “If I were a man such as your
Lordship conceives me to be, not thinking of God Almighty or
heaven or hell, I might have saved my life, for it has been often
offered to me if I would confess my own guilt and accuse others;
but, my Lord, I would sooner die ten thousand deaths.” Chief
Justice: “Iam sorry to see you persist in the principles of that
false religion which you profess.” Archbishop: “These, my
Lord, are principles that even God Almighty himself cannot dis-
pense withal.” Chief Justice: “ Well, however that may be,
the judgment which we must give you is that which the law pre-
scribes, ‘ you must go from hence to the place from whence you
came, that is Newgate, and from thence you shall be drawn
through the city of London to Tyburn ; there you shall be hanged
by the neck, but cut down before you are dead,” &c. &c. Arch-
bishop: “I hope I may have this favour, for a servant and some
few friends now to: be with me.” Chief Justice: “I know
nothing to the contrary. But I would advise you to have some
LIFE OF CHIEF JUSTICE PEMBERTON.
minister to come to you, some Protestant minister. We wish
better to you than you doto yourself.” Archbishop: “ God
Almighty bless your Lordship! And now, my Lord, asI am a
dead man to this world, and as I hope for mercy in the next, I
was never guilty of any of the treasons laid to my charge, as you
will know in due time.”
The sacraments having been administered to him according
to the rites of his church by a brother convict, the Arch-
bishop was, a few days afterwards, drawn through the streets
of London on a hurdle, and, having again protested his inno-
cence and forgiven his enemies, he was put to death with all
the revolting cruelties enumerated to him when he received
sentence. Protestant zeal only desired one addition to the
sacrifice —that the victim should have been decked in full
canonicals as Popish Primate of all Ireland.*
For some unaccountable reason, the Government was in-
censed against Plunket, and therefore Pemberton convicted
him according to the rules of law. Mr. Fox observes, that
* the King, even after the dissolution of his best parliament,
when he had so far subdued his enemies as to be no longer
under any apprehensions from them, did not think it worth
while to save the life of Plunket, of whose innocence no
doubt could be entertained.” f
I now come to the most exceptionable passage in the life
of Chief Justice Pemberton. While the King was nearly
indifferent about Plunket, he was more eager than he had
ever been in pursuit of any object during his reign, — to
bring Shaftesbury to the scaffold; and this he knew would be
accomplished as soon as he could get a bill of indictment found
against him by a grand jury, for the doomed patriot would
then have perished by a partial selection of peers in the
Court of the Lord High Steward. ‘To induce the grand
jurors to find the bill, Pemberton, although, as a lawyer, he
was well aware that they ought first to have had a Hens
facie case of guilt made out, fe addressed them :
“ Look ye, gentlemen, I must tell you that which is referred to
you is to consider whether there be any reason or ground for the
King to call to account those who are accused ; if there be pro-
* 8 St. Tr. 447—500. + Fox’s History of James II.
F p 4
39
CHAP;
XX,
A.D. 1681.
He strives
to induce
the grand _
jury to find
an indict-
ment
against
Lord
Shaftes-
bury.
40
CHAP.
XX.
A.D, 1681.
Trial of
Lord Grey
de Werke
for the se-
duction of
Lady Har-
riet
Berkeley.
REIGN OF CHARLES II.
bable ground, it is as much as you can inquire into. Where there
is no kind of suspicion of a crime, nor reason to believe that the
thing can be proved, it is not for the King’s honour to -call men to
account ; buta probable cause is enough. As it is a crime to con-
demn innocent persons, so it is a crime as great to acquit the
guilty. ‘That God who requires the one, requires both; and let
me tell you, if any of you shall be refractory, and will not find a
bill where there isa probable ground for an accusation, you do
thereby intercept justice, and make yourselves criminals.”
Contrary to usage and law, he further ruled that the wit-
nesses on whose evidence the grand jury were to act should
be examined in open court; and, in conjunction with North,
who outdid him in servility, he resorted to the most unworthy
arts of intimidation and cajolery to obtain the finding of a
true bill; but the juries were still returned by Whig sheriffs,
the franchises of the City of London remaining in force. The
bill was returned 1¢NoRAMUS, and Shaftesbury was saved.*
There is no more striking proof of the depraved state of
public morality in those days than that, after such an instance
of dastardly compliance with the wishes of the King, Pem-
berton should still have been considered a judge to be respected,
by comparison, for independence and integrity.
Whether he thought that, on the last occasion, he had gone
too far to please the Government, and now wished to seize
an opportunity of putting on a show of impartiality, I know
not; but, on the trial of Lord Grey de Werke, indicted
before him for carrying off and seducing the Lady Harriet
Berkeley, daughter of the Earl of Berkeley, -— although the
King was desirous of a conviction because the defendant
was a Whig, Chief Justice Pemberton conducted himself
unexceptionably. He properly ruled that the young lady
herself was a competent witness; and, in summing up to the
jury, he said —
“The question before you is, whether there was any unlawful
solicitation of this lady’s love, and whether there was any in-
veiglement of her to withdraw herself and run away from her
father’s home without his consent, and whether my Lord Grey
did frequent her company afterwards? Her mother and sisters
* 8 St. Tr. 759—842. ; Lives of Chancellors, iii. ch. xe,
LIFE OF CHIEF JUSTICE PEMBERTON.
make out a strong case to support the indictment; but she denies
it all, and I must leave it to you which story you will believe.”
After the trial was over, Pemberton, with great spirit, quelled
a riot which arose in Westminster Hall respecting the custody
of the Lady Harriet, her father laying hold of her against
her will, and she, in collusion with her paramour, pretending
that she was married to another man, who claimed her.
Swords were drawn, and a conflict was begun, but the Chief
Justice sternly rebuked the combatants, and by his inter-
position tranquillity was restored without effusion of blood.*
It might have been supposed that the King and his
ministers would have had confidence in Chief Justice Pem-
berton, but, in spite of the zealous assistance he had given in
the plan to hang Lord Shaftesbury, he was now removed
from his office as untrustworthy. While the charters of the
City of London remained by which the citizens were em-
powered to elect sheriffs, who returned juries both for the
City of London and for the County of Middlesex, there was
no certainty that the best endeavours of the most obsequious
judges to cut off Whig leaders might not be rendered abor-
tive by a conscientious verdict. A guo warranto suit had,
therefore, been instituted, for the purpose of having all the
charters of the City declared forfeited, so that the King
might remodel its municipal constitution in the way best
calculated to gain his own ends. This suit had been advised
by the subtlest of special pleaders — EpMuUND SAUNDERS,
and he had drawn the guo warranto, and conducted all the
proceedings as counsel for the Crown to the stage where it
was ripe for being finally argued and: determined in the
Court of King’s Bench. The constitution of the country
was supposed to depend upon the result. If the citadel of
freedom should be taken in the assault, despotism would be
* 9 St. Tr. 127—186. Macaulay describes this as ‘a scene unparalleled in
our legal history. The seducer appeared with dauntless front, accompanied by
his paramour. Nor did the Whig Lords flinch from their friend’s side even in
that extremity. In our time such a trial would be fatal to the character of a
public man; but in that age the standard of morality among the great was so
low, and party spirit was so violent, that Grey still continued to have consider-
able influence, though the Puritans, who formed a strong section of the Whig
party, looked soinewhat coldly upon him.” — Vol.i. p. 529, 530.
41
CHAP:
XX.
A.D. 1682.
Cause ot
Pember-
ton’s re-
moval from
the office of
Chief Jus-
tice of the
King’s
Bench.
The Lon-
don Quo
War-
RANTO,
42
CHAP.
XX,
A.D. 1682,
He is made
Chief Jus-
tice of the
Common
Pleas.
REIGN OF CHARLES II.
permanently established ; but failure would revive agitation,
and might render the calling of a parliament indispensable.
Every thing depended on the Chief Justice of the King’s
Bench. Had the prosecution been well founded, Pemberton
would have been very readily trusted with it; but, un-
fortunately, all lawyers knew that if the slightest regard
were paid to the principles of law or to former decisions,
there must be judgment in favour of the City of London.
The courtiers were aware that Pemberton was not entirely
devoid of conscience, and that there were limits to his aberra-
tions from rectitude beyond which he would not trespass.
To give him a chance, he was sounded by the Attorney Ge-
neral, in a manner not unusual, respecting the guo warranto
against the City, — when he returned an ambiguous answer.
The bold resolution was taken to cashier him, and to
substitute for him EpMUND SAUNDERS, about whom there
could be no misgiving. Notwithstanding Pemberton’s merits
and past services, he would at once have been reduced to the
ranks, but it luckily happened that the inferior office of
Chief Justice of the Common Pleas was vacant. This was
offered to him as a solatium, and he had the meanness to
accept it. Sir Thomas Raymond, in giving an account of
Saunders’s installation, says “he was placed Chief Justice of
the said Court in the room of Sir Francis Pemberton, who
was the day before sworn Chief Justice of the Common Pleas
at his own desire, for that it is a place (tho’ not so honour-
able) yet of more ease and plenty, as the Lord Keeper
said in his speech to Saunders.” * But, says Roger North,
who had a spite against Pemberton, “the truth is, it was
not thought any way reasonable to trust that cause, on
which the peace of the Government so much depended, to a
chief who never showed so much regard to the law as to his
will, and notorious as he was for little honesty, boldness,
cunning, and incontrolable opinion of himself.” It may be
amusing to read his arguments by which such proceedings
were gravely and unblushingly defended : —
“It will be proper to solve a question much tossed about in
those days, whether the Court was not to blame for appointing
* Sir T. Raymond, 473.
LIFE OF CHIEF JUSTICE PEMBERTON.
men to places of judgment where great matters of law and of
mighty copsequence depended to be heard and determined, whose
Opinions were known beforehand. All governments must be en-
trusted with power, which may be used to good or ill purpose.
Here a government is beset with enemies ever watching for oppor-
tunities to destroy it, and having a power to choose whom to trust,
the taking up men whose principles are not known is more than
an even chance that enemies are taken into their bosom. Would
they not be sure of men to judge whose understandings and prin-
ciples were foreknown? What is the use of power but to secure
justice? It is a maxim of law, that fraud is not to be assigned in
lawful acts. If governments secure their peace by doing only
what is lawful to be done, all is right. If they suffer encroach-
ments, and at length dissolution, for want of using such powers,
what will it be called but stupidity and folly ?” *
Sir Francis Pemberton being thus removed from the office
of Chief Justice of the King’s Bench to make way for one
who not only had never been in office before and had not
even worn a silk gown, but besides was of the lowest origin
and of the most vulgar habits — felt the degradation keenly,
and, instead of rejoicing in his slender integrity, expressed
regret that he had not been more uniformly complying. But
if he was to walk behind Saunders, who had “ nine issues in
his back,” it was some consolation to him that he was to be
still “ My Lord,” and to receive higher emoluments than he
could expect at the bar. He was sworn in Chief Justice of
the Common Pleas, at the Lord Chancellor’s private house,
— to ayoid speeches in open court, which might have been
very awkward on both sides.f
The Quo WaRRANTO proceeded. Judgment was given
against the City; all its charters, granted by so many sove-
reigns, were declared to be forfeited ; all its privileges were
annihilated; and the Government had now the unlimited
power of packing juries in London and Middlesex. {
But Saunders had lost his life in the wound which he had
inflicted on the constitution, and the office of Chief Justice
of the King’s Bench was again vacant. It might have been
* Life of Guilford, ii, 121.
+ Sir Thomas Raymond, 251.; Burnet, O. T., ii. 185. 188.
+ 8 St. Tr. 1039,
43
CHAP,
eae
A.D. 1682.
Jan. 13.
A.D. 1683.
Office of
Chief Jus-
tice of the
44
CHAP.
XX,
A.D, 1683.
King’s
Bench
again
vacant,
Rye-house
Plot.
Trial of
Walcot.
Lord Rus-
sell’s Case.
July 13.
Courteous
demeanour
of Pember-
tonto Lord
Russell.
REIGN OF CHARLES II.
restored to Pemberton had there not been another candidate
for it, who was destined to throw into the shade all past
judicial delinquency. Some months intervened before the
new law arrangements could be completed. In this interval
the Rye-house Plot was discovered, and, those implicated
in it being about to be tried, Pemberton was placed at the
head of the Commission, the Government thinking that, not-
withstanding his secret resentment, he had motives sufficient
to keep him steady in the hope of restitution and the dread
of further disgrace.
The case of Colonel Walcot was taken first ; and here there
was no difficulty, for he had not only joined in planning an
insurrection against the Government, but was privy to the
design of assassinating the King and the Duke of York, and,
in a letter to the Secretary of State, he had confessed his
complicity, and offered to become a witness for the Crown.
This trial was meant to prepare the public mind for that of
Lord Russell, the great ornament of the Whig party, who
had carried the Exclusion Bill through the House of Com-
mons, and, attended by a great following of Whig members,
had delivered it with his own hand to the Lord Chancellor
at the bar of the House of Lords. In proportion to his
virtues was the desire to wreak vengeance upon him. But
the object was no less difficult than desirable, for he had
been kept profoundly ignorant of the intention to offer vio-
lence to the royal brothers, from the certainty that he would
have rejected it with abhorrence; and although he had been
present when there were deliberations respecting the right
and the expediency of resistance by force to the Government
after the system had been established of ruling without par-
liaments, he had never concurred in the opinion that there
were no longer constitutional means of redress, —- much less
had he concerted an armed insurrection. Notwithstanding
all the efforts made to return a prejudiced jury, there were
serious apprehensions of an acquittal.
Pemberton, the presiding Judge, seems to have been con-
vinced that the evidence against him was insufficient; and
although he did not interpose with becoming vigour, by re-
pressing the unfair arts of Jeffreys who was leading counsel
LIFE OF CHIEF JUSTICE PEMBERTON.
for the Crown, and although he did not stop the prosecution
as an independent judge would do in modern times, he can-
not be accused of any perversion of law; and, instead of treat-
ing the prisoner with brutality, as was wished and expected,
he behaved to him with courtesy and seeming kindness.
Lord Russell, on his arraignment at the sitting of the
Court in the morning, haying prayed that the trial should be
postponed till the afternoon, as a witness for him was absent,
and it had been usual in such case to allow an interval between
the arraignment and the trial, Pemberton said, “ Why may
not this trial be respited till the afternoon?” and the only
answer being the insolent exclamation “ Pray call the jury,”
he mildly added, “‘ My Lord, the King’s counsel think it not
reasonable to put off the trial longer, and we cannot put it
off without their consent in this case.”
The following dialogue then took place, which introduced
the touching display of female tenderness and heroism of the
celebrated Rachel Lady Russell assisting her martyred hus-
band during his trial—a subject often illustrated both by the
pen and the pencil.
Lord Russell: “ My Lord, may I not have the use of pen, ink,
and paper?” Pemberton: “ Yes, my Lord.” Lord Russell:
«My Lord, may I not make use of any papers I have?” Pem-
berton: “ Yes, by all means.” Lord Russell: “ May I have
somebody write to help my memory? Attorney General: “ Yes,
a servant.” Lord Russell: “My wife is here, my Lord, to do it.”
Pemberton: “ If my Lady please to give herself the trouble.”
The Chief Justice admitted Dr. Burnet, Dr. Tillotson, and
other witnesses, to speak to the good character and loyal
conversation of the prisoner, and gave weight to their testi-
mony, notwithstanding the observation of Jeffreys that “ it
was easy to express a regard for the King while conspiring to
murder him.” In summing up to the jury, after alluding to
the witnesses called by the prisoner * concerning his integrity
and course of life,” he said, —
*“ Now, the question before you will be, whether, upon this
whole matter, you do believe my Lord Russell had any design
upon the King’s life, for that is the material part here. It is given
you by the King’s counsel as an evidence of this, that he did con-
45
CHAP.
XX.
A.v. 1683,
46
CHAP.
XX.
A.D. 1683.
Determi-
nation to
dismiss
Pemberton
from being
a Judge.
Sept. 29.
REIGN OF CHARLES II.
spire to raise an insurrection, and to surprise the King’s guards,
which, say they, can have no other end but to seize and destroy the
King. It must be left to you upon the whole matter. You have
not evidence in this case as you had in that tried yesterday, of a
conspiracy to kill the King at the Rye. ‘There, direct evidence
was given of a consult to kill the King, which you have not here.
If you believe the prisoner at the bar to have conspired the death
of the King, and in order to that to have had the consults the
witnesses speak of, you must find him guilty of the treason laid to
his charge.”
The jury retired, and the courtiers present were in a state
of the greatest alarm; for against Algernon Sydney, who was
to be tried next, the case was still weaker; and if the two
Whig chiefs, who were considered already cut off, should
recover their liberty, and should renew their agitation, a
national cry might be got up for the summoning of Par-
liament, and a new effort might be made to rescue the country
from a Popish successor. These fears were vain. ‘The jury
returned a verdict of Gu1LTy, and Lord Russell expiated on
the scaffold the crime of trying to preserve the religion and
liberties of his country.
But Pemberton was not to be forgiven the anxiety he had
occasioned. Notwithstanding the want of moral courage
and the subserviency he had displayed during Lord Russell’s
trial, complaint was truly made that hitherto there never had
been an instance of a state offender, whom the Government
were desirous of convicting, being treated with so much
moderation, and being allowed such a fair chance of escaping.
It was determined that Sydney should be tried before a
Judge who would make sure work of him, and that as Pem-
berton had not taken warning by his removal from the office
of Chief Justice of the King’s Bench, and as he was so irre-
claimably irresolute that no dependence could be placed upon
him, he should be for ever deprived of all judicial employ-
ment. Accordingly a supersedeas passed the great seal, by
which he was dismissed from the office of Chief Justice of
the Common Pleas; Jones, untroubled by scruples, was ap-
pointed to succeed him; and Jeffreys, promoted to be Chief
Justice of the King’s Bench, was the remorseless murderer of
LIFE OF CHIEF JUSTICE PEMBERTON.
Sydney.* At the same time Pemberton was expelled from
the Privy Council, into which he had been admitted a
member when he was made Chief Justice of the King’s
Bench.
Before I again accompany him to the bar, I ought to say
something of his decisions in civil cases while he remained on
the bench. . Roger North’s grudge against him, for having a
hankering after honesty and independence, leads him to say
“he was a better practiser than a judge; for he had a
towering opinion of his own sense and wisdom, and rather
made than declared law: I have heard his Lordship say, that
in making law he had outdone King, Lords, and Commons.”
This jocular boast he very likely made, for it is quite con-
sistent with his having done his duty as an enlightened
magistrate. With us, the rules of property fixed by act of
parliament bear an infinitesimally small proportion to those
fixed by the common law, and the common law is made up of
judicial decisions. New combinations of facts are constantly
arising and producing new questions of law; the deter-
mination of each of these may be considered a new law, for
it lays down a rule to be followed in time to come, and the
reports of our courts of justice are far more voluminous than
the statute book. Pemberton did not publish any of his own
judgments, and he was by no means fortunate in having a
good reporter; but, making allowance for the inaccuracies and
the barbarous dialect of Ventris, Shower, Sir Thomas Jones,
and Sir Thomas Raymond, he seems to have proceeded
generally on sound principles of jurisprudence, and by no
means to have been wanting in respect for the authority of
his predecessors. ‘The only bad decisions to be laid to his
charge are those against the privileges of the House of
Commons, for which he was punished by the Convention
Parliament, and which it will afterwards be my duty to
explain.
He was particularly celebrated as a good nisi prius judge.
Sir Henry Chauncy says, “ He would not suffer lawyers, on
trials before him, to interrupt or banter witnesses in their
* 2 Shower, 318.
47
CHAP.
XX,
A.p. 1683.
His deci-
sions in
civil cases,
48
CH AP.
XX.
He a third
time com-
mences
practice at
the bar
A.pv. 1688.
He is
counsel for
the Seven
Bishops.
REIGN OF JAMES II.
evidence, but allowed every person liberty to recollect their
thoughts, and to speak without fear, that the truth might be
better discovered.” *
Although he was now in his sixtieth year, he resolved the
third time in his life to begin to practise at the bar; and,
having been several years a Chief Justice, and called Lorp
PEMBERTON, he became once more Mr. Serjeant.
He immediately again got into extensive business, and he
was engaged in the most important trials which took place,
both civil and criminal, till the landing of the Prince of
Orange —a period of five years. He sat usually in the
Common Pleas, but he occasionally went into the King’s
Bench, and practised before Jeffreys, notwithstanding their
former squabbles when Pemberton was on the bench and
Jeffreys was at the bar.t
The grand trial coming on which proximately produced the
Revolution, the ex-Chief Justice was counsel for the Seven
Bishops, along with a strange mixture of counsel of different
parties and principles — Sawyer and Finch, who, as Attorney
and Solicitor General for Charles II., had prosecuted Russell
and Sydney; Pollexfen, the Whig leader of the Western Cir-
cuit, who had shared with Jeffreys the obloquy of the “ Bloody
Assizes ;” Levinz, who, returning to the bar when displaced
from the bench for a show of independence, was now induced
to take a brief against the Crown by a threat of the attorneys
that, if he refused it, he should never hold another; Treby,
the ex-Recorder of London, who had been turned out when
the City was disfranchised ; and Somers, hitherto only known
for learning and ability by a few private friends, — hereafter
to be immortalised as the author of the Bill of Rights, and
the chief founder of the constitutional government under
which we now live. They forgot all past differences and
animosities, and nobly struggled in defence of their illustrious
clients. In ex-Chief Justice Pemberton was seen a wonder-
ful union of zeal, discretion, learning, and eloquence, and
“through the whole trial he did his duty manfully and ably.” §
* See Clutterbuck’s Herts, i. 82.
t The Chiefs were Lords simply by their surnames. Hence we speak at
this day of Lord Coke, Lord Hale, and Lord Holt.
¢ 10 St. Tr. 567. § Macanlay’s History, i. 379.
LIFE OF CHIEF JUSTICE PEMBERTON.
The first point which he made, when the Bishops were
brought from the Tower and charged with the information,
was, —“ that they were illegally in custody, and therefore
were not then bound to plead.”
Pemberton, Serjeant: ‘“ Good my Lord, will you please to
hear usa little to this matter?” JL. C. J.: “ Brother Pemberton,
we will not refuse to hear you — by no means — but not now;
for the King is pleased, by his Attorney and Solicitor General,
to charge these noble persons, my Lords the Bishops, with an in-
formation.” Pemberton, Serjt.: “Pray, my Lord, spare us a
word : if we are not here as prisoners regularly before your Lord-
ship, and are not brought in by due process, the Court has not
power to charge us with the information; therefore we beg to
be heard on the question, whether we are legally here before
you?”
The objection being overruled, Pemberton offered a plea
to be put upon the record “that the defendants, as peers of
parliament, were privileged from arrest in such a case ;” but
this the Court refused to receive, and the Bishops were
obliged to plead not guilty.
When the jury had been sworn, the charge was opened
against the defendants that they had written and published,
in the county of Middlesex, a false, malicious, and seditious
libel (meaning the respectful Petition which they had pre-
sented to the King, praying that his Majesty would recal his
order for the clergy to read the Declaration of Indulgence,
issued contrary to the Test Act).* But the first difficulty was
to prove their signatures to the Petition, and an acquittal
was about to take place, when the Crown counsel put into
the witness-box Mr. Blathwayt, the clerk of the Council, who
swore that, when they were summoned before the King, they
owned their signatures to the Petition; but Pemberton in-
sisted, in cross-examination, upon having all that had passed
between the King and the Bishops fully stated: —
Williams, S.G.: “ That is a pretty thing, indeed!” Powys,
A.G.: “Do you think you are at liberty to ask our witnesses
* The information stated a conspiracy to defame the King, alleging the
writing and publication of the libel as the overt act; but notwithstanding this
technicality, which is hardly worth noticing, the prosecution was in reality for
writing and publishing the libel, and is so treated throughout the whole trial.
VOL. II. E
49
CHAP:
Be. S&
June 15.
1688,
Question as
to whether
the Bishops
were legally
imprisoned
June 20,
Pember-
ton’s cross-
examina-
tion of the
clerk of the
Council.
50
CHAP.
XX.
Difficulty
in proving
a publica-
tion in
Middlesex.
REIGN OF JAMES Ii.
any impertinent question that comes into your head?” Pemberton :
“ The witness is sworn to tell the truth, and the whole truth, and
an answer we must and will have.” Powys, A. G: “ If you per-
sist in asking such a question, tell us, at least, what use you mean
to make of it.” Pemberton, Serjt.: “ My Lords, I will answer
Mr. Attorney. I will deal plainly with the Court. If the Bishops
owned this paper under a promise from his Majesty that their con-
fession should not be used against them, I hope that no unfair ad-
vantage will be taken of them.” Williams, S. G.: “ You put on
his Majesty what I dare hardly name. Since you are so pressing,
T demand for the King that the question may be recorded.” Pem-
berton: “ Record what you will, I am not afraid of you, Mr.
Solicitor.” *
After a long altercation, the questions were allowed to be
put; and it appeared from the answers that, although the
King had made no express promise that advantage should
not be taken of the admission of the Bishops, they had ad-
mitted their handwriting on this understanding. The signa-
tures were held to be proved.
But a still greater difficulty arose in showing that there
had been any Fehnanne of the supposed libel in the county
of Middlesex: —
Pemberton, Serjt.: “ To say the writing and subscribing of
their names is a publication of that paper, is such doctrine truly as
I never heard before. Suppose this paper had been in my study
subscribed by me, but never went further, would this have been a
publication ? but the publication must be proved to have been in
the county of Middlesex.” Powys, A. G.: “ Look you; it does
lie upon you to prove it was done elsewhere than in Middlesex.”
Pemberton, Serjt.: ‘ Sure, Mr. Attorney is in jest.” L.C.JS.:
“ Pray, brother Pemberton, be quiet. If Mr. Attorney says any-
thing he ought not to say, I will correct him; but pray do not,
you who are at the bar, interrupt one another.”
The Court having finally ruled that there was not sufficient
evidence of a publication in Middlesex, the Chief Justice was
beginning to direct the jury to find a verdict of acquittal,
when Finch, one of the counsel for the Bishops, offered to
* At this time, leading questions were not allowed to be put in eross-
examination, more than in examination in chief; and I am not sure that the old
rule is not the best one——when I consider the monstrous abuse sometimes
practised in putting words into the mouth of a friendly witness, necessarily called
by the side he is opposed to.
LIFE OF CHIEF JUSTICE PEMBERTON.
adduce evidence for the defendants. Pemberton, seeing the
gross indiscretion of this proceeding, started on his legs, pulled
down his junior, and said —
“ My Lord, we are contented that your Lordship should direct
the jury.” £.C.J.: “No! no! I will hear Mr. Finch. The
Bishops shall not say of me, that I would not hear their counsel.”
Pemberton, Serjt.: “Pray, good my Lord, we stand mightily
uneasy here, and so do the jury. Pray, dismiss us.”
But for Finch’s foolish interruption, the anticipated acquit-
tal would then have been recorded. At this moment it was
announced that the Earl of Sunderland, the Lord President,
was coming into court to prove that the Bishops had, in his
presence, presented the petition to the King at Whitehall.
LL. C. Ju: “ Well, you see what comes of interruption.”
After Lord Sunderland’s evidence, nothing remained except
the question of libel or no libel? Pemberton, when on the
bench, had concurred with the other judges in the doctrine
that this was a question exclusively for the Court, and that
the jury had nothing more to consider than whether, in point
of fact, the writing alleged to be libellous had been composed
and published by the defendant.* But, in spite of his own:
ruling, he insisted that, although the Bishops had been proved
to have composed and published the Petition, they were
entitled to a verdict of not guilty from the jury.
“ My Lords the Bishops,” said he, “ are here accused of a crime
of a very heinous nature ; they are here branded and stigmatised
by this information as if they were seditious libellers; when,
in truth, they have done no more than their duty, their duty to
God, their duty to the King, and their duty to the Church. We
insist that the kings of England have no power to suspend or dis-
pense with the laws and statutes of this kingdom touching re-
ligion ; that is what we stand upon for our defence. And we say,
that such a dispensing power with laws and statutes strikes at the
very foundation of all the rights, liberties, and properties of the
King’s subjects whatsoever. If the King may suspend the laws of
the land which concern our religion, 1am sure there is no other
law but he may suspend; and if the King may suspend all the laws
of the kingdom, what a condition are all the subjects in for their
* See Rex v. Harris, 7 St. Tr. 930.,—the case in which, approving of
Seroggs’s law, he objected to whipping being part of the sentence.
E 2
51
CHAP.
XX.
A.D. 1688.
Pember-
ton’s
speech to
show that
the Peti-
tion of the
Bishops
was not a
libel.
52
CHAP.
XX.
A.D, 1688, |
Weight of
Pemberton
with the
REIGN OF JAMES II.
lives, liberties, and properties! —all at mercy. The King’s legal
prerogatives are as much for the advantage of his subjects as of
himself, and no man goes about to speak against them ; but, under
pretence of legal prerogative, to extend this power of the King to
the destruction of all his subjects, would be doing him no true
service. These laws are in truth the great bulwark of the reformed
religion; they are, in truth, that which fenceth the Church of
England, and we have no human protection besides. ‘They were
made upon a foresight of the mischief that had and might come by
false religions in this kingdom — and were intended to keep them
out—particularly to keep out the Romish religion, which is the very
worst of all religions.* Ifthis Declaration of Indulgence, against
which the Bishops made a dutiful representation, should take effect,
what would be the end of it? All religions are encouraged, let
them be what they will — Ranters, Quakers, and the like, — nay,
even Popery, which was intended by these acts of parliament to
be kept out of this nation, as a religion no way tolerable, and not
to be endured here. We say this farther, that my Lords the
Bishops have the care of the Church by their very function and
offices, and are bound to take care to keep out all those false
religions which are prohibited and designed to be kept out by the
law ; and, seeing that this Declaration was founded upon a mere
pretended power which had been continually opposed and rejected ~
in parliament, they could not comply with the King’s commands to
read it.”
He then went into an historical discussion respecting the
dispensing power, showing that as often as it had been claimed
in matters of religion it had been denied and abandoned.
Coming to the last attempt in the reign of Charles IL, he
was proceeding, — “ Afterwards, in 1672, the King was
prevailed upon again to grant another dispensation somewhat
larger 2 TC. J: © Brother Pemberton, I would not
interrupt you, but we have heard of this over and over
again already.” Pemberton, perceiving that the jury were
strongly with him, dextrously said, “ Then, since your Lord-
ship is satisfied of all these things, as I presume you are
(else I should have gone on), I have done, my Lord.”
The other counsel exerted themselves with much boldness
and vigour, but the victory which followed was chiefly to be
* This must have been very distasteful to Mr. Justice Allybone, sitting be-
fore him on the bench, who, although a Papist, had been made a judge of the
King’s Bench by virtue of this supposed dispensing power.
LIFE OF CHIEF JUSTICE PEMBERTON.
ascribed to Pemberton, who, having reputably presided as
Chief Justice of the Court, was regarded with far more
respect by the jury than his infamous successor, Sir Robert
Wright, and was still supposed to be laying down the law
with judicial authority.*
It might have been expected that, having taken so bold a
part during this trial, he would have signed the invitation to
the Prince of Orange, which was sent off immediately after ;
but his heart failed him. He was paralysed by his scruples
respecting the sin of rebellion and the perils to which he
might subject himself if he should join in any unsuccessful
attempt at resistance to arbitrary rule. He therefore con-
tinued to devote himself exclusively to his professional pur-
suits. Even after the Prince of Orange had landed he
remained perfectly neutral, and he declined a seat in the
Convention Parliament.
When William and Mary were on the throne, and new
judges were to be appointed in the room of those who dis-
graced the bench at the end of the reign of James II., it was
expected by many that Pemberton would have been restored
along with Atkyns and John Powell, who had been removed
for their honesty during the last two reigns; but, although
his services in defending the Seven Bishops were duly appre-
ciated, and it was acknowledged that, when compared with
Jeffreys and Scroggs, he was a paragon of virtue, it could
not be forgotten that from timidity, if not corruption, he had
assisted the Government in their design to bring the Earl of
Shaftesbury to the block, and that although he had wished
to save Lord Russell he had allowed him to be sacrificed.
Indeed, the attainder of this illustrious patriot being now
reversed by act of parliament as unlawful, there would have
been much awkwardness in replacing on the bench the judge
by whom it was pronounced. Therefore, when the members
of the Cabinet produced their lists of twelve men to preside
in the common law courts in Westminster Hall, Pemberton’s
name was found in very few of them; and in the new judicial
* 12 St. Tr.183—433. My professional friends may be curious to know what
his fees were on this occasion. From the attorney’s bill it appears that he re-
ceived five guineas retainer, twenty guineas with his brief, and three guineas for
a consultation. Sir R. Sawyer and Mr. Finch refused to take any fee.
E3
>
53
CHAP.
XX.
A.v. 1688,
jury as an
ex-Chief
Justice,
Treatment
of Pember-
ton after
the Revolu-
tion,
May 1.
1689.
54
CHAP.
XX.
A.D. 1689.
He is ex-
amined
before the
House of
Commons,
Complaint
against
him of a
breach of
privilege
when he
was Chief
Justice of
the King’s
Bench.
~ July 18.
REIGN OF WILLIAM AND MARY.
arrangement, which gave such general satisfaction, he was
entirely passed over.
An inquiry being afterwards instituted into the manner in
which judges had recently been tampered with and cashiered,
he was examined before the House of Commons, but could
or would give very little information on the subject. While
others described very amusing scenes at Chiffinch’s private
room at Whitehall, where they had secret interviews with
Charles and James, and were interrogated respecting the
dispensing power, the King’s prerogative to control the law
by proclamations, and the judgment they were prepared to
give in cases which were pending, they could get Pemberton
to say nothing more than “I was removed out of my place
without visible cause the first time; neither do I know the
reason of my being removed from the King’s Bench to the
Common Pleas. I was never sent for to Whitehall nor to
my Lord Chancellor’s, The night before, my lord said
nothing to me, but the next morning I had a supersedeas.”*
Whether he had given offence by sulkiness I know not,
but a resolution was now taken to treat him with great
rigour.
Mr. Topham, the Serjeant-at-arms of the House of Com-
mons, presented a petition, setting forth “ that several vex-
atious actions had been brought against him for executing the
orders of the House when Sir Francis Pemberton was Chief
Justice of the King’s Bench, and that, although he had
pleaded that he acted under the authority of the House, he
had beén cast in damages and costs.” The petition was
referred to a select committee, who reported that the judg-
ments given against the Serjeant-at-arms were illegal, and a
violation of the privileges of Parliament. Sir Francis Pem-
berton was thereupon ordered to attend at the bar. The
treatment which he experienced on this occasion has been
severely condemned ; but I must confess that his demeanour
was not very straightforward or dignified. The Speaker
having informed him that he was sent for to state the ground
on which he had overruled the plea in Jay v. Topham,—
* 5 Parl. Hist. 312.
LIFE OF CHIEF JUSTICE PEMBERTON.
instead of denying, like Holt, the right of either House of
Parliament to interrogate him in see irregular manner, or
frankly stating what had happened, he equivocated, and the
following dialogue grieved his friends : —
Pemberton: “Sir, [know nothing of this action. I have been out
of the court now six years, I cannot remember so many thousand
actions as were brought at that time. But if you willlet me know
what the charge is, I do not doubt but I can give you a good ac-
count of it.” Speaker: “A plea was pleaded that the defendant
acted by the authority of this House, and such plea you overruled.”
Pemberton: “'This is quite new to me, for I knew not what I was
sent for.” Speaker: “The House desires to know on what ground,
in the case of Jay v. Topham, you overruled the defendant’s
plea.” Pemberton: “I think he pleaded to the jurisdiction of the
Court ; and if he did, with submission the plea ought to have been
overruled.” Speaker: ‘The House doth require your reasons
for maintaining this opinion.” Pemberton: “I will give you my
reasons as well as I can; but you cannot expect I should be
furnished with such reasons now as I may state upon further con-
sideration. I must premise that I do not think that your privi-
leges are in question. There is no judge who understands himself
but will allow the privileges of the House; they are the privileges
of the nation, and we are all bound to maintain them as much as
any member of the House. But the question is all de modo —
whether the authority of the House is pleadable to the jurisdiction
of the Court, or in bar? And, under favour, I have always taken
it that such a defence is not pleadablein abatement. The question
is, whether this shall stop the Court, so that they cannot examine
into the fact, — and see whether such a warrant was signed by the
Speaker, as is alleged. Any man living might plead such a
plea.”
Time was given to inquire into the pleadings in Jay v.
Topham, and the ex-Chief Justice was ordered to attend
again.
When he next appeared, he insisted that the plea had been
to the jurisdiction of the Court; and he added, “ We did not
question the legality of your orders, but we were to see
whether the orders had been given, and whether they had
been properly obeyed. If Mr. Topham arrested the plaintiff
without any order, or imprisoned him till he paid a sum of
money, damages ought to be awarded. If I was mistaken in
E 4 :
55
oe
A.D. 1689,
July 19,
He is com-
mitted to
Newgate.
REIGN OF WILLIAM AND MARY.
this case, it was an error of my judgment. My design was to
to justice.”
The record is not to be found (as it ought to be) in the
Treasury of the King’s Bench, having been produced on this
oceasion at the bar of the House of Commons and not re-
turned to the proper custody ; but there is every reason te
believe that the plea was substantially a plea in bar, and that
it had been improperly overruled. Chief Justice Pem-
berton happened to be then oscillating towards the Govern:
ment, which was highly incensed against the popular leaders,
and entertained a strong desire to put down parliamentary
privilege. The House of Commons (Maynard, Somers, and
other learned and just men, being present) passed a resolution
that Sir Francis Pemberton, in giving this judgment, had been
guilty of a breach of privilege, and ordered him to be taken
into custody. In consequence he was committed to Newgate,
and he remained a close prisoner there till the 14th day of
March, 1690—a period of eight months — when, the session
being at last terminated by a prorogation, he was discharged.
Considering his great eminence as an advocate, the high
judicial offices which he had filled, and the noble battle he
had waged in the cause of freedom when defending the Seven
Bishops, it is impossible not to commiserate his fate. But
the leaders of the Convention Parliament have been too
rashly blamed for the punishment inflicted upon him. Lord
Ellenborough said, in Burdett v. Abbott, “It is surprising
how a judge could have been questioned and committed to
prison, by the House of Commons, for having given a judg-
ment which no judge who ever sat in this place could differ
from. It was after the Revolution -— which makes such a
commitment for such a cause a little alarming. It must be re-
collected that Lord Chief Justice Pemberton stood under the
disadvantage at that period of having been one of the Judges
who sat on the trial of Lord Russell. He was a man of
eminent learning, and, being no favourite with either party at
that time, for he was shortly after that trial removed from his
situation, was probably an honest man.” * And Lord Erskine,
having alluded in a debate in the House of Lords to this
* 14 East, 104.
LIFE OF CHIEF JUSTICE PEMBERTON.
“commitment of Lord Chief Justice Pemberton, exclaimed,
with much vehemence, “ If a similar attack were made upon
my noble and learned friend (Lord. Ellenborough) who sits
next me, for the exercise of his legal jurisdiction, I would
resist the usurpation with my strength, and bones, and
blood.” * But there can be little doubt that Pemberton,
who was ever deficient in moral courage, for the purpose
of screening himself, misrepresented the plea; and that, how-
ever meritorious his services at other times may have been,
on this occasion he well deserved the punishment inflicted
upon him.t
On recovering his liberty, he once more returned to the
bar; but now, enfeebled by age, and not supposed to have
“the ear of the Court,” he was very little employed. He
had a beautiful villa near Highgate, where he spent the
greatest part of his time in seclusion. So late, however, as
the year 1696, he was one of the counsel for Sir John Fen-
wick, and assisted in opposing the bill of attainder by which
that unfortunate gentleman was put to death in a manner
which would have been condemned in the worst days of the
Stuarts.t This was the last occasion of Sir Francis Pem-
berton ever appearing in public.
Soon after, he altogether withdrew from business, and the
last three years of his life he entirely devoted to contem-
plation. He expired on the 10th of June, 1699, in the 74th
year of his age, and was buried in Highgate church, where
there still stands a monument erected to his memory, with
the following inscription : —
“™M. S. venerabilis admodum viti D. Francisci Pemberton Eq. aurati, ser-
vientis ad legem, e sociis Interioris Templi, necnon sub serenissimo principe
Carolo 2°, Banci Regii ac Communis Capitalis Justiciarii, sacra majestati
a secretioribus consiliis; vir plané egregius, ad reipublice pariter ac suorum
dulce decus et presidium feliciter natus. Patre Radulpho in Agro Hertford.
Generoso, ex antiqua Pembertonorum prosapia in Com. Palat. Lancastrie
oriundo.” §
With a little more firmness of principle, or moral courage,
joined to his talents, acquirements, and opportunities, he
* 16 Parl. Deb. 851.
t See 2 Nels. Ab. 1248.; Lord Campbell’s Speeches, 206.
¢ 13 St. Tr. 537—758.
§ Lysons’ Environs, p. 68.; Clutterbuck’s Herts, ii. 449. He left several
sons behind him; and his descendants were seated at Trumpington, near Cam-
bridge, till the beginning of the present century.
57
CHAP.
XX.
A.D. 1689
—1699.
He again
practises at
the bar.
His death.
His epi-
taph.
LIFE OF CHIEF JUSTICE PEMBERTON.
might have been a great character in English history ; but,
while he perceived and approved the right course, and never
entirely abandoned it, he not unfrequently deviated from it,
—so that among his contemporaries he bore the contemned
name of a “ trimmer,” and his reputation with posterity has
been neither pure nor brilliant. The errors of his youth
would have been easily forgiven after the noble amends
which he made for them, but we cannot praise the excessive
caution with which he ever conducted himself that he might
not give offence to those in power; and although we feel
pity rather than indignation when his virtue falters, he occa-
sionally submitted to compliances, for the purpose of winning
and retaining office, which utterly deprives him of our
esteem. If any thing could have made him appear a re-
spectable judge, it would have been a comparison with the
four Chief Justices who succeeded him.
LIFE OF CHIEF JUSTICE SAUNDERS.
CHAPTER XXI.
LIFE OF LORD CHIEF JUSTICE SAUNDERS.
THERE never was a more flagrant abuse of the prerogative of
the Crown than the appointment of a Chief Justice of the
King’s Bench for the undisguised purpose of giving judg-
ment for the destruction of the charters of the City of
London, as a step to the establishment of despotism over the
land. Sir Edmund Saunders accomplished this task effect-
ually, and would, without scruple or remorse, have given any
other illegal judgment required of him by a corrupt Govern-
ment. Yet I feel inclined to treat his failings with lenience,
and those who become acquainted with his character are apt
to have a lurking kindness for him. From the disadvantages
of his birth and breeding, he had little moral discipline; and
he not only showed wonderful talents, but very amiable
social qualities. His rise was most extraordinary, and he
may be considered as our legal Whittington.
«* He was at first,” says Roger North, “no better than a
poor beggar-boy, if not a parish foundling without known
parents or relations.” There can be no doubt that, when a
boy, he was discovered wandering about the streets of London
in the most destitute condition— penniless, friendless — with-
out having learned any trade, without having received any
education. But although his parentage was unknown to the
contemporaries with whom he lived when he had advanced
himself in the world, recent inquiries have ascertained that
he was born in the parish of Barnwood, close by the city of
Gloucester ; that his father, who was above the lowest rank
of life, died when he was an infant, and that his mother took
for her second husband a man of the name of Gregory, to
whom she bore several children. We know nothing more
respecting him, with certainty, till he presented himself in the
59
CHAP.
X XI.
Kind feel-
ing among
lawyers for
Sir Ed-
mund
Saunders in
spite of his
profligacy.
Qu. whe-
ther he was
a found.
ling ?
60
CHAP.
XXI.
His first
appearance
in London.
How he
learned to
write.
His legal
education.
LIFE OF CHIEF JUSTICE SAUNDERS.
metropolis; and we are left to imagine that he might have
been driven to roam abroad for subsistence, by reason of his
mother’s cottage being levelled to the ground during the siege
of Gloucester; or that, being hardly used by his stepfather,
he had run away, and had accompanied the broad-wheeled
waggon to London, where he had heard that riches and plenty
abounded.
The little fugitive found shelter in Clement’s Inn, where
“he lived by obsequiousness, and courting the attornies’
clerks for scraps.” * He began as an errand-boy, and hi:
remarkable diligence and obliging disposition created a genera.
interest in his favour. Expressing an eager ambition to learn
to write, one of the attorneys of the Inn got a board knocked
up at a window on the top of a staircase. This was his desk,
and, sitting here, he not only learned the running hand of the
time, but court hand, black letter, and ingrossing, and made
himself an “expert entering clerk.” In winter, while at
work, he covered his shoulders with a blanket, tied hay-bands
round his legs, and made the blood circulate through his
fingers by rubbing them when they grew stiff. His next
step was to copy deeds and law papers, at so much a folio or
page, —by which he was enabled to procure for himself
wholesome food and decent clothes. Meanwhile he not only
picked up a knowledge of Norman French, and law Latin,
but, by borrowing books, acquired a deep insight into the
principles of conveyancing and special pleading. By and by
the friends he had acquired enabled him to take a small
chamber, to furnish it, and to begin business on his own account
as a conveyancer and special pleader. But it was in the
latter department that he took greatest delight, and was the
most skilful— insomuch that he gained the reputation of
being familiarly acquainted with all its mysteries; and
although the order of “special pleaders under the bar” was
not established till many years after, he was much resorted to
by attorneys who wished by a sham plea to get over the term,
or by a subtle replication to take an undue advantage of the
defendant.
It has been untruly said of him, as of Jeffreys, that he
* Life of Guilford, ii. 125.
.
LIFE OF CHIEF JUSTICE SAUNDERS.
began to practise as a barrister without having been ever
ealled to the bar. In truth, the attorneys who consulted him
haying observed to him that they should like to have his
assistance to maintain in court the astute devices which he
recommended, and which duller men did not comprehend, or
were ashamed of, he, rather unwillingly, listened to their
suggestion that he should be entered of an Inn of Court, for
he never cared much for great profits or high offices; and,
haying money enough to buy beer and tobacco, the only
luxuries in which he wished to indulge, he would have pre-
ferred to continue the huggermugger life which he now led.
He was domesticated in the family of a tailor in Butcher
Row, near Temple Bar*, and was supposed to be rather too
intimate with the mistress of the house. However, without
giving up his lodging here, to which he resolutely stuck till
he was made Lord Chief Justice of England, he was pre-
yailed upon to enter as a member of the Middle Temple.
Accordingly, on the 4th of July, 1660, he was admitted
there by the description of “ Mr. Edmund Saunders, of the
county of the city of Gloucester, gentleman.” The omission
to mention the name of his father might have given rise to
the report that he was a foundling; but a statement of
parentage on such occasions, though usual, was not abso-
lutely required, as it now is.
He henceforth attended “moots,” and excited great ad-
miration by his readiness in putting cases and taking off
objections. By his extraordinary good-humour and joviality,
he likewise stood high in the favour of his brother Templars.
The term of study was then seven years, liable to be abridged
on proof of proficiency ; and the benchers of the Middle Tem-
ple had the discernment and the liberality to call Saunders to
the bar when his name had been on their books little more
than four years.
We have a striking proof of the rapidity with which he
rushed into full business. He compiled Reports of the de-
cisions of the Court of King’s Bench, beginning with Michael-
* This was a very narrow dirty lane, which was swept away when the im-
provements were made between St. Clement’s Church and Temple Bar, about
forty years ago.
He is
called te
the bar.
Nov. 15.
1664.
His rapid
progress,
62
CHAP:
XXI.
A.D. 1666
— 1671.
The excel-
lence of his
Reports.
REIGN OF CHARLES II.
mas Term, 18 Charles II, A.D. 1666, when he had only
been two years at the bar. These he continued till Easter
Term, 24 Charles IL, a.p. 1672. They contain all the
cases of the slightest importance which came before the Court
during that period; and he was counsel in every one of them.
His “hold of business” appears the more wonderful when
we consider that his Matson with the tailor’s wife was well
known, and might have been expected to damage him even
in those profligate times; and that he occasionally indulged
to great excess in drinking, so that he must often have come
into court very little acquainted with his “ breviat,” and must
have trusted to his quickness in finding out the questions to
be argued, and to his storehouse of learning for the apposite
authorities.
But, when we peruse his “ Reports,” the mystery is solved.
There is no such treat fora common lawyer. Lord Mans-
field called him the “ Terence of reporters,” and he certainly
supports the forensic dialogue with exquisite art, displaying
infinite skill himself in the points which he makes, and the
manner in which he defends them; doing ample justice, at
the same time, to the ingenuity and learning of his antagonist.
Considering the barbarous dialect in which he wrote (for the
Norman French was restored with Charles II.), it is mar-
vellous to observe what a clear, terse, and epigrammatic
style he uses on the most abstruse juridical topics.
He laboured under the imputation of being fond of sharp
practice, and he was several times rebuked by the Court for
being “ trop subtile,” or “ going too near the wind ;” but he
was said by his admirers to be fond of his craft only in meliori
sensu, or in the good sense of the word, and that, in entrapping
the opposite party, he was actuated by a love of fun rather
than a love of fraud.* Thus is he characterised, as a practi-
tioner, by Roger North : —
* I knew such aman in my youth. Having demurred four times succes-
sively to a very faulty declaration, assigning only one blunder for cause of de-
murrer each time, the author of the declaration sent hima challenge as for a
personal insult ; when he merely returned for answer,— “ Dear Tom, I fight only
in Banco Regis, Why should you not suppose that I might be as dull as your-
self, and that it took me some time to find out the blunders which had escaped
you? When I came to one which was decisive, there I stopped, presuming that
what followed must be all right. Your loving friend, E. L.”
LIFE OF CHIEF JUSTICE SAUNDERS.
‘Wit and repartee in an affected rusticity were natural to him.
He was ever ready, and never at a loss, and none came so near as
he to be a match for Serjeant Maynard. His great dexterity was
in the art of special pleading, and he would lay snares that often
caught his superiors, who were not aware of his traps. And he
was so fond of success for his clients, that, rather than fail, he
would set the Court hard with a trick ; for which he met some-
times with a reprimand, which he would wittily ward off, so that
no one was much offended with him. But Hale could not bear his
irregularity of life; and for that, and suspicion of his tricks, used
to bear hard upon him in the court. But no ill usage from the
bench was too hard for his hold of business, being such as scarce
any could do but himself.” *
He did not, like Scroggs and Jeffreys, intrigue for ad-
vancement. He neither sought favour with the popular
leaders in the City, nor tried to be introduced into Chiftinch’s
“spie office” at Whitehall. “In no time did he lean to
faction, but did his business. without offence to any. He
put off officious talk of government and politics with jests,
and so made his wit a catholicon or shield to cover all his
weak places and infirmities.” { He was in the habit of laugh-
ing both at Cavaliers and Roundheads ; and, though nothing
of a Puritan himself, the semi-popish high-churchmen were
often the objects of his satire.
His professional, or rather his special-pleading, repu-
tation forced on him the advancement which he did not
covet. Towards the end of the reign of Charles II., when
the courts of justice were turned into instruments of
tyranny, (or, as it was mildly said, “the Court fell into a
steady course of using the law against all kinds of offenders,”)
Saunders had a general retainer from the Crown, and was
specially employed in drawing indictments against Whigs,
and quo warrantos against Whiggish corporations. In
Crown cases he really considered the King as his client, and
was as eager to gain the day for him, by all sorts of manceuvres,
as he had ever been for a roguish Clement’s Inn attorney.
He it was that suggested the mode of proceeding against
* Life of Guilford, ii. 127. TalbaLess
¢ He had discontinued his Reports, partly from want of leisure, and partly
from disliking to report the decisions of such judges as Raynsford and Scroggs.
63
CHAP.
XXI.
A.D. 1671
—1680.
His cha-
racter as a
practi-
tioner.
He is em-
ployed by
the Govern-
ment
against the
Whigs.
He pleases
the King
and is
knighted.
His argu-
ment
against
Fitzharris.
His quarrel
with Chief
Justice
Pember-
ton,
REIGN OF CHARLES II.
Lord Shaftesbury for high treason: on his recommendation
the experiment was made of examining the witnesses before
the grand jury in open court, — and he suggested the subtlety
that “the usual secrecy observed being for the King’s benefit,
it might be waived by the King at his pleasure.” When the
important day arrived, he himself interrogated very artfully
Mr. Blathwayt, the clerk of the Council, who was called to
produce the papers which had been seized at Lord Shaftesbury’s
house in Aldersgate-street, and gave a treasonable tinge to
all that passed. The 1aNoramus of his indictment must
have been a heavy disappointment to him; but the effort
which he had made gave high satisfaction to the King, who
knighted him on the occasion, and from that time looked
forward to him as a worthy Chief Justice.*
Upon the dissolution of the Oxford Parliament and the
rout of the Whig party, it being resolved to hang Fitzharris,
Saunders argued with uncommon zeal against the prisoner’s
plea that there was an impeachment depending for the same
offence ; and concluded his legal argument in a manner which
seems to us very inconsistent with the calmness of a dry legal
argument: “ Let him plead guilty or not guilty: I rather
hope that he is not guilty than that he is guilty: but if he be
guilty, it is the most horrid venomous treason ever spread
abroad in any age. And for that reason your Lordships
will not give countenance to any delay.” t
I find him several times retained as counsel against the
Crown; but upon these occasions the Government wished for
an acquittal. He defended the persons who were prosecuted
for attempting to throw discredit on the Popish Plot}, he
was assigned as one of the ‘counsel for Lord Viscount
Stafford §, and he supported the application made by the
Earl of Danby to be discharged out of custody. || On this
last occasion he got into a violent altercation with Lord
Chief Justice Pemberton. The report says that “Mr.
Saunders had hardly begun to speak when the Lord Chief
Justice Pemberton did reprimand the said Mr. Saunders for
#°S St. Tr-779, t Ib. 271. + 7 St. Tr. 906.
§ 7 St. Tr. 1242. | 11 St. Tr. 831.
LIFE OF CHIEF JUSTICE SAUNDERS.
having offered to impose upon the Court. To all which Mr.
Saunders replied, that he humbly begged his Lordship’s par-
don, but he did believe that the rest of his brethren under-
stood the matter as he did.” The Earl of Danby supported
this statement, and Saunders had a complete triumph over the
Chief Justice.*
Pemberton was soon removed from the office of Chief
Justice of the King’s Bench, and Saunders sat in his place.
In spite of the victory which the King had gained over the
Whigs at the dissolution of his last parliament, he found one
obstacle remain to the perpetuation of his despotic sway in
the franchises of the City of London. The citizens (among
whom were then included all the great merchants, and some
of the nobility and gentry) were still empowered to elect
their own magistrates; they were entitled to hold public
meetings; and they could rely upon the pure administration
of justice by impartial juries, should they be prosecuted by
the Government. The Attorney and Solicitor General, being
consulted, acknowledged that it passed their skill to find a
remedy; but, a case being laid before Saunders, he advised
that something should be discovered which might be set up
as a forfeiture of the City charters, and that a Quo War-
RANTO should be brought against the citizens, calling upon
them to show by what authority they presumed to act as a
corporation. Nothing bearing the colour even of irregularity
could be suggested against them except that, on the rebuilding
and enlarging of the markets after the great fire, a bye-law
had been made, requiring those who exposed cattle and goods
to contribute to the expense of the improvements by the
payment of a small toll; and that the Lord Mayor, Aldermen,
and Commonalty of the City had, in the year 1679, presented
a petition to the King lamenting the prorogation of parlia-
ment in the following terms: ‘“ Your petitioners are greatly
surprised at the late prorogation, whereby the prosecution of
the public justice of the kingdom, and the making of neces-
sary provisions for the preservation of your Majesty and your
Protestant subjects, have received interruption.”
Saunders allowed that these grounds of forfeiture were
* 11 St. Tr. 831.
VOL. Il. F
65
CHAP.
XXI.
History of
the great
London
Quo War-
RANTO,
66
CHAP.
XXI.
A.pd. 1683.
Saunders
made
Chief Jus-
tice of the
King’s
Bench.
His instal-
lation.
REIGN OF CHARLES Ii.
rather scanty, but undertook to make out the BYE-Law to
be the usurpation of a power to impose taxes without autho-
rity of Parliament, and the PETITION a seditious interference
with the just prerogative of the Crown.
Accordingly, the Quo WaRRANTO was sued out, and, to
the plea setting forth the charters under which the citizens
of London exercised their privileges as a corporation, he drew
an ingenious replication, averring that the citizens had for-
feited their charters by usurping a power to impose taxes
without authority of Parliament, and by seditiously interfering
with the just prerogative of the Crown. The written plead-
ings ended in a demurrer, by which the sufficiency of the
replication was referred, as a question of law, to thé judgment
of the Court of King’s Bench.
Saunders was preparing himself to argue the case as counsel
for the Crown, when, to his utter astonishment, he received
a letter from the Lord Keeper announcing his Majesty’s
pleasure that he should be Chief Justice. He not only never
had intrigued for the office, but his appointment to it had
never entered his imagination; and he declared, probably
with sincerity, that he would much sooner have remained at
the bar, as he doubted whether he could continue to live with
the tailor in Butcher Row, and he was afraid that all his
favourite habits would be dislocated. This arrangement
must have been suggested by cunning lawyers, who were
distrustful of Pemberton, and were sure that Saunders might
be relied upon. But Roger North ascribes it to Charles
himself; not attempting, however, to disguise the corrupt
motive for it. ‘ The King,” says he, “ observing him to be
of a free disposition, loyal, friendly, and without greediness
or guile, thought of him to be Chief Justice of the King’s
Bench at that nice time. And the ministry could not but
approve of it. So great a weight was then at stake as could
not be trusted to men of doubtful principles, or such as anything
might tempt to desert them.” *
On the 23d of January, being the first day of Hilary Term,
1683, Sir Edmund Saunders appeared at the bar of the Court
of Chancery, in obedience to a writ requiring him to take
* Life of Guilford, ii, 129.
LIFE OF CHIEF JUSTICE SAUNDERS.
upon himself the degree of Serjeant-at-law ; and distributed
the usual number of gold rings, of the accustomed weight and
fineness, with the courtly motto “ PRINCIPI SIC PLACUIT.”
He then had his coif put on, and proceeded to the bar of
the Common Pleas, where he went through the form of
pleading a sham cause as a Serjeant. Next he was marched
to the bar of the King’s Bench, where he saw the Lord
Keeper on the bench, who made him a flowery oration, pre-
tending “that Sir Francis Pemberton, at his own request,
had been allowed to resign the office of Chief Justice of that
Court, and that his Majesty, looking only to the good of
his subjects, had selected as a successor him who was allowed
to be the fittest, not only for learning, but for every other
qualification.” The new Chief Justice, who often expressed
a sincere dislike of palaver, contented himself with repeating
the motto on his rings, “ PRINCIPI SIC PLACUIT ;” and,
having taken the oaths, was placed on the bench, and at
once began the business of the Court.*
In a few days afterwards came on to be argued the great
case of The King v. the Mayor and Commonalty of the City
of London. Finch, the Solicitor General, appeared for the
Crown; and Treby, the Recorder of London, for the defend-
ants. The former was heard very favourably ; but the latter
having contended that, even if the Bye-law and the Petition
were illegal, they must be considered only as the acts of the
individuals who had concurred in them, and could not affect
the privileges of the body corporate—an ens legis, without
a soul, and without the capacity of sinning, — Lord Chief
Justice Saunders exclaimed —
* According to your notion, never was one corporate act done by
them: certainly, whatsoever the Common Council does, binds the
whole; otherwise it is impossible for you to do any corporate act,
for you never do, and never can, convene all the citizens. Then
you say your Petition is no reflection on the King, but it says
that by the prorogation public justice was interrupted. If so, by
whom was public justice interrupted? Why, by the King! And
is it no reflection on the King, that, instead of distributing justice
to his people, he prevents them from obtaining justice? You must
* 2 Shower, 264.; Sir Thomas Raymond, 478.
F 2
67
CHAP.
XXII.
A.D. 1683.
Hearing of
the Quo
Warranto.
68
CHAP.
XXI.
A.D. 1683.
June 12,
Saunders’s
last illness,
Judgment
in the Quo
Warranto.
REIGN OF CHARLES II.
allow that the accusation is either true or false. But, supposing it
true that the King did amiss in proroguing the Parliament, the
Common Council of London neither by charter nor prescription
had any right to control him. ‘If the matter were not true (as it
is not), the Petition is a mere calumny. But if you could justify
the presenting of the Petition, how can you justify the printing of
it, whereby the Mayor, Aldermen, and citizens of London do let
all the nation know that the King, by the prorogation of Par-
liament, hath given the public justice of the nation an interruption ?
Pray, by what law, or custom, or charter, is this privilege of
censure exercised? You stand forth as ‘chartered libertines.’
As for the impeecability of the corporation, and your doctrine that
nothing which it does can affect its being, strange would be the
result if that which the corporation does is not the act of the cor-
poration, and if, the act being unlawful and wicked, the corporation
shall be dispunishable. I tell you I deliver no opinion now, —I
only mention some points worthy of consideration. Let the case
be argued again next term.”
In the ensuing term the case was again argued by Sawyer,
the Attorney General, for the Crown, and Pollexfen for the
City,—-when Lord Chief Justice Saunders said, “We shall
take time to be advised of our opinion, but I cannot help now
saying what a grievous thing it would be if a corporation
cannot be forfeited or dissolved for any crime whatsoever.
Then it is plain that you oust the King of his Quo Warranto,
and that, as many corporations as there are, so many inde-
pendent commonwealths are established in England. We
shall look into the precedents, and give judgment next term.”
When next term arrived, the Lord Chief Justice Saunders
was on his deathbed. His course of life was so different
from what it had been, and his diet and exercise so changed,
that the constitution of his body could not sustain it, and he
fell into an apoplexy and palsy, from which he never re-
covered.* But, before his illness, he had secured the votes of
his brethren.
The judgment of the Court was pronounced by Mr. Justice
Jones, the senior Puisne Judge, who said, —
* Several times have we met and had conference about this
matter, and we have waited on my Lord Saunders during his sick-
* Life of Guilford, ii. 129.
LIFE OF CHIEF JUSTICE SAUNDERS.
ness often ; and, upon deliberation, we are unanimously of opinion
that a corporation aggregate, such as the City of London, may be
forfeited and seised into the King’s hands, on a breach of the trust
reposed in it for the good government of the King’s subjects ; —
that to assume the power of making bye-laws to levy money, is a
just cause of forfeiture ; — and that the Petition in the pleadings
mentioned is so scandalous to the King and his government, that
it is a just cause of forfeiture. Therefore, this Court doth award
that the liberties and franchises of the City of London be seised
into the King’s hands.”
This judgment was considered a prodigious triumph, but
it led directly to the misgovernment which in little more
than five years brought about the Revolution and the esta-
blishment of a new dynasty. To guard against similar
attempts in all time to come, the charters, liberties, and
customs of the City of London were then confirmed, and for
ever established, by act of parliament.*
Saunders was Chief Justice so short a time, and this was
so completely occupied with the great Quo WARRANTO Case,
that I have little more to say of him asa Judge. We are
told that “while he sat in the Court of King’s Bench he
gave the rule to the general satisfaction of the lawyers.” f
We have the account of only one trial before him at nist
prius, —that of Pilkington, Lord Grey de Werke, and others,
for a riot. Before the City of London was taken by a
regular siege, an attempt had been made upon it by a coup
de main. 'The scheme was to prevent the regular election of
sheriffs, and to force upon the City the two Court candidates,
who had only a small minority of electors in their favour.
In spite of violence used on their behalf, the poll was going
in favour of the liberal candidates, when the Lord Mayor,
who had been gained over by the Government, pretended
to adjourn the election to a future day. The existing
sheriffs, who were the proper officers to preside, continued
the poll, and declared the liberal candidates duly elected.
Nevertheless, the Court candidates were sworn in as sheriffs,
and those who had insisted on continuing the election after
the pretended adjournment by the Lord Mayor were pro-:
* 2 Shower, 275.; 8 St. Tr. 1039—1358. ¢ Life of Guilford, ii. 129.
FS
69
CHAP.
XXI.°
A.D. 1683. .
Saunders’s
conduct at
the trial of
Rex v.
Pilking-
ton.
REIGN OF CHARLES If.
secuted for a riot. They pleaded not guilty, and, a jury to
try them having been summoned by the new sheriffs, the
trial came on at Guildhall before Lord Chief Justice Saunders.
He was then much enfeebled in health, and the excitement
produced by it was supposed to have been the cause of the
fatal malady by which he was struck a few days after.
The jury being called, the counsel for the defendants put
in a challenge to the array, on the ground that the supposed
sheriffs, by whom the jury had been returned, were not the
lawful sheriffs of the City of London, and had an interest in
the question : —
LL. C.J. Saunders: “ Gentlemen, I am sorry you should have
so bad an opinion of me, and think me so little of a lawyer, as not
to know that this is but trifling, and has nothing init. Pray,
gentlemen, do not put these things upon me.” Mr. Thompson:
“‘T desire it may be read, my Lord.” L.C. J. Saunders: “You
would not have done this before another judge; you would not
have done it if Sir Matthew Hale had been here. ‘There is no
law in it.” Mr. Thompson: “We desire it may be read.’’
LL. C. J. Saunders: “This is only to tickle the people.” The
challenge, however, was read. Jeffreys: “ Here’s a tale of a tub
indeed!” LZ. C. J. Saunders: “ Aye, it is nothing else, and I
wonder that lawyers should put such a thing upon me,” Mr.
Thompson : “ My Lord, we desire this challenge should be allowed.”
L. C.J. Saunders : “ No, indeed, won’t I. There is no colour for it.”
Mr. Thompson: “My Lord, is the fact true or false? If it be
insufficient in point of law, let them demur.” Jeffreys: “ ‘Robin
Hood on Greendale stood’!!! I pray for the King that it may be
overruled.” Mr. Thompson: “My Lord, I say where a sheriff is
interested in point of title, he is no person in law to return a jury.
The very title to the office is here in question.” LZ. C. J.
Saunders: “Mr. Thompson, methinks you have found out an
invention, that the King should never have power to try it, even
so long as the world stands. Who would you have the process go
to?” Mr. Thompson: “'To the coroner.” L. C.J. Saunders:
“* My speech is but bad; let me know what objection is made, and
if I can but retain it in my memory, I don’t question but to give you
satisfaction. ‘The sheriffs who returned the jury are sheriffs de
facto, and their title cannot thus be inquired into. Wherever the
defendant thinks it may go hard with him, are we to have a trial
whether the sheriffs be sheriffs or no? What you are doing may
LIFE OF CHIEF JUSTICE SAUNDERS.
be done in every cause that may be trying.” Mr. Thompson: “ My
Lord, we pray a bill of exceptions.” Jeffreys: “This discourse
is only for discourse sake. Swear the jury.” L.C.J. Saunders:
** Aye, swear the jury.”
So far, he was right in point of law; but, when the trial
proceeded upon the merits, to suit the purposes of the Go-
vernment and to obtain a conviction he laid down doctrines
which he must well have known to be indefensible respecting
the power of the Lord Mayor to interrupt the poll by an
adjournment, and the supposed offence of the electors in still
continuing the election, they believing that they were ex-
ercising a lawful franchise. Finally, in summing up to the
jury, he observed, —
*‘ But they pretend that the sheriffs were the men, and that the
Lord Mayor was nobody; that shows that it was somewhat of the
Commonwealth seed that was like to grow up among the good
corn.” [Here, the report says, the people hummed and interrupted
my Lord. He thus continued.] “ Pray, gentlemen, that is a very
indecent thing; you put an indignity upon the King. Pray,
gentlemen, forbear ; such demeanour does not become a court of
justice. When things were topsy-turvy I can’t tell what was
done, and I would be loth to have it raked up now. These
defendants tell you that they believed they were acting according
to law, but ignorance of the law is now no excuse, and you will
consider whether they did not in a tumultuary way make a riot to
set up a magistracy by the power of the people? Gentlemen, it
hath been a long trial, and it may be I have not taken it well; my
memory is bad, and I am but weak: I don’t question but your
memories are better than mine. Consider your verdict, and find
as many guilty as you think fit.”
The jury having been carefully packed, the defendants
were all found guilty, and they were heavily fined ; but, after
the Revolution, this judgment was reversed by the legis-
lature.* .
During Lord Chief Justice Saunders’s last illness the Rye-
house Plot was discovered, and it was a heavy disappointment
to the Government that no further aid could be expected
from him in the measures still contemplated for cutting off
the Whig leaders and depressing the Whig party. His
* 9 St. Tr. 187—298.
F 4
ol
CHAP.
XXI.
A.D. 1683.
CHAP.
XXI.
A.D. 1683,
His death.
His ap-
pearance,
manners,
and habits.
REIGN OF CHARLES II.
hopeless condition being ascertained, he was deserted and
neglected by all his Whitehall patrons, who had lately been
so attentive to him, and he received kindness only from
humble dependants and some young lawyers, who, notwith-
standing all his faults, had been attached to him from his
singular good-humour.
A few minutes after ten o’clock in the forenoon of Tues-
day, the 19th of June, 1683, he expired in a house at
Parson’s Green, to which he had unwillingly transferred
himself from Butcher Row when promoted to be Chief
Justice.* His exact age was not known, but he was not
supposed to be much turned of fifty, although a stranger
who saw him for the first time would have taken him to be
considerably more advanced in life. Of his appearance, his
manners, and his habits, we have, from one who knew him in-
timately, the following graphic account, which it would be a
sin to abridge or to alter: —
* As to his person, he was very corpulent and beastly ;—a
mere lump of morbid flesh. He used to say ‘by his troggs (such
an humorous way of talking he affected) none could say he wanted
issue of his body, for he had nine in his back” He was a fetid
mass that offended his neighbours at the bar in the sharpest degree.
Those whose ill-fortune it was to stand near him were confessors,
and in summer-time almost martyrs. This hateful decay of his
carcase came upon him by continual sottishness ; for, to say
nothing of brandy, he was seldom without a pot of ale at his nose,
or near him. ‘That exercise was all he used; the rest of his life
was sitting at his desk or piping at home; and that home was a
tailor’s house, in Butcher Row, called his lodging, and the man’s
wife was his nurse or worse: but by virtue of his money, of which
he made little account, though he got a great deal, he soon became
master of the family ; and, being no changeling, he never removed,
but was true to his friends and they to him to the last hour of his
life. With all this, he had a goodness of nature and disposition
in so great a degree that he may be deservedly styled a phi-
lanthrope. He was a very Silenus to the boys, as in this place
I may term the students of the law, to make them merry when
ever they had a mind to it. He had nothing of rigid or austere
in him. If any near him at the bar grumbled at his stench,
he ever converted the complaint into content and laughing
_* 3 Mod, 25.
LIFE OF CHIEF JUSTICE SAUNDERS.
with the abundance of his wit. As to his ordinary dealing, he
was as honest as the driven snow was white; and why not, having
no regard for money or desire to be rich? And for good nature
and condescension, there was not his fellow. I have seen him
for hours and half hours together before the court sat, stand at
the bar, with an audience of students over against him, putting of
cases, and debating so as suited their capacities and encouraged
their industry. And so in the Temple, he seldom moved without
a parcel of youths hanging about him, and he merry and jesting
with them. Once, after he was in the King’s business, he dined
with the Lord Keeper, and there he showed another qualification
he had acquired, and that was to play jigs upon an harpsichord,
haying taught himself with the opportunity of an old virginal of
his landlady’s ; but in such a manner, not for defect but figure, as
to see him was ajest.” *
I have not to give a relation of peers, baronets, or knights,
descended from this Chief Justice, as he was never married,
but he has nevertheless contributed to the “ Grandeur of the
Law” by his RErorts, which are so entertaining as well as
instructive that they have instilled into many a taste for
juridical study, notwithstanding its imagined dryness, proving
our science to be —
* Not harsh and erabbed, as dull fools suppose,
But — a perpetual feast of nectar’d sweets,
Where no crude surfeit reigns.” +
Notwithstanding his carelessness about money, he left
considerable property behind him. This he disposed of by a
will, dated 23d of August, 1676, — republished 2d of Sept.
1681, and proved by sentence of the Prerogative Court on the
14th of July, 1683, —whereby he gives to Mary Gutheridge
his lease of the Bishop’s land, “ which will come to her by
special occupancy as being my heir at law ;” and he bequeaths
legacies to his father and mother Gregory, his sister Frances
Hall, his old aunt Saunders, and his cousin Sarah Hoare.
Among other charitable bequests, he leaves to the poor of the
parish of Barnwood, in the county of Gloucester, where he
drew his first breath, the sum of 202. to be distributed at the
* Life of Guilford, ii. 126—129.; and see Granger, iii. 367.
t The editions of these Reports by the late Serjeant Williams, and by the
present most learned Judges, Mr. Justice Patteson and Mr. Justice Vaughan
Williams, illustrated by admirable notes, may be said to embody the whole com-
mon law of England, scattered about, I must confess, rather immethodically.
How he
has contri-
buted to
the
* Grandeur
of the
Law.”
His will.
74
CHAP.
XXI.
His armo-
rial bear-
ings.
REIGN OF CHARLES II.
discretion of his father Gregory if he shall be living. His
friends Nathaniel Earle and Jane his wife (the master and
mistress of the house in which he lodged in Butcher Row)
he appoints his executor and executrix and residuary legatees,
*‘as some recompense for their care of him, and attendance
upon him, for many years.”*
His armorial bearings, which must have been granted to
him when he was knighted, have been discovered by the
diligence of that skilful antiquary, Mr. Pulman, Deputy
Usher of the Black Rod; and, with those of the other Chief
Justices from the earliest times, now ornament the splendid
library of the House of Lords in the new palace at West-
minster.
* Will in C. P. C, Reg. 147. Drax.
REIGN OF CHARLES II.
CHAPTER XXII.
CHIEF JUSTICES FROM THE DEATH OF SIR EDMUND SAUNDERS
TILL THE REVOLUTION,
On the sudden death of Saunders, there was much perplexity
as to the appointment of his successor. His want of political
principle and his immoralities had been to a certain degree
counterbalanced by his profound knowledge of the law, his
mildness of disposition, and his popular manners. The can-
didate eagerly pressing forward his claims, and supported
by the most unscrupulous courtiers, was notoriously desti-
tute of public or private virtue, — knew nothing of his pro-
fession beyond what he had picked up in Old Bailey practice,
— was brutally offensive in his deportment to all who were
opposed to him; and, acting as a subordinate judge, had,
on various occasions, set at defiance the rules of decency
and the dictates of humanity. Even Charles II. himself —
who, in making appointments, did not stand upon trifles as
far as character was concerned, and who had been pleased to
see sitting in his council Shaftesbury, who boasted of being,
next to himself, the most profligate man in England— shud-
dered at the approach of Jeffreys, saying, “ That man has no
learning, no sense, no manners, and more impudence than ten
carted street-walkers.”
Meanwhile, the trials arising out of the Rye-house Plot
were coming on, and vengeance was to be taken on the Whigs
for their vigorous and often successful opposition to the
measures of the Court since the Sovereign of England had
degraded himself into a viceroy of France. Good hopes had
been entertained of Pemberton for presiding Judge, as he had
received a severe warning against his occasional displays of
independence by being removed from the King’s Bench to
the Common Pleas, with hints of the further punishment
75
CHAP:
XXII.
Jeffreys
Chief
Justice of
the King’s
Bench.
76
CHAP,
XXII.
Reference
to the
Lives of the
Chancel-
lors.
Additions
to the
* Life of
Jeffreys,”
REIGN OF CHARLES II.
that might await him if he should not be more zealous in
the public service. But he had nearly allowed Lord Russell
to escape; and it was foreseen that, notwithstanding his
timidity, he must necessarily direct the acquittal of Sydney,
against whom there was no case, without making an old
MS. essay on the speculative principles of government, found
among his papers, an overt act of high treason. ‘ Work was
to be done which could be trusted to no man who reverenced
law, or was sensible of shame.”* Accordingly, there was
placed in the supreme seat of justice, knowingly and de-
signedly, one of the most infamous wretches who ever wore
the human form, and whose atrocities, when elevated to
power, were not more revolting than might have been expected
from his established character and past conduct. * All people
were apprehensive of very black designs when they saw
Jeffreys made Lord Chief Justice, who was scandalously
vicious, and was drunk every day; besides a drunkenness of.
fury in his temper that looked like enthusiasm.” +
It would now be my duty to trace the extraordinary career
of this monster, from his birth in an obscure Welsh village,
to his death in the Tower of London, if I had not already
done so in my “ LivES OF THE CHANCELLORS.” Subse-
quent researches suggest little addition to the facts I have
already narrated concerning him and no mitigation of the
sentence of infamy which I have pronounced upon him. As
a further proof of his contempt of decency on the bench, I
may mention that on the trial of the learned and pious divine
Richard Baxter, after exclaiming, in his own naturally violent
tone, “ This is an old rogue, a schismatical knave, a hypo-
critical villain; he hates the liturgy; he would have nothing
but long-winded cant without book,” the Lord Chief Justice
suddenly turned up his eyes, clasped his hands, and began to
sing through his nose, in imitation of what he supposed to be
Baxter’s style of praying, “ Lorp, WE ARE THY PEOPLE!
THY PECULIAR PEOPLE!! THy DEAR PEOPLE!!!” +
I ought to have dwelt more upon his venality during the
* Macaulay, i. 452. { Burnet, O. T., ii, 231,
+ 10 St. Tr. 1315.; Life of Baxter, ch. xiy.
LIFE OF CHIEF JUSTICE JEFFREYS.
“ Bloody Assizes,” for of the 841 prisoners whose lives were
spared, and who were transported as slaves to the colonies,
many were sold on’ his own account, and, long as was the
voyage, and sickly, he calculated that from the state of the
slave market, after all charges were paid, they would average
152 a head.* But the proceeds of all these sales did not
fetch him so much as a single pardon. Most of the men
accused of joining Monmouth were from the lower ranks
of life, and, except in the sale of their persons, they could be
turned to little profit, for they could muster only a very
small bribe to be let off, and, if convicted and executed, their
forfeited property was seldom more than a flock of geese or a
flitch of bacon. The Chief Justice was therefore delighted
to find that he had got in his toils Edward Prideaux, who
had inherited broad lands from his father, an eminent lawyer
in the time of the Commonwealth, and who, without having
been in arms, was suspected of favouring the rebellion.
Although no witnesses could be got to swear against this
gentleman, he wisely agreed to pay 15,0007. for his liberation.
With his ransom Jeffreys became the purchaser of a large
estate, the name of which the people changed to Aceldama,
as being purchased with the price of innocent blood.+
I ought, likewise, to have stated, as another instance of his
unexampled cruelty, that, after his return from the west, and
receiving the great seal, on the very day on which Alderman
Cornish was hanged and beheaded in Cheapside, he caused
Elizabeth Gaunt to be burned alive at Tyburn, for having
piteously given shelter to a fugitive who betrayed her. She
was a Sister of Charity: her life had been passed in re-
lieving the unhappy of all religious denominations, and she
was well known as a constant visitor of the gaols in the hope
of enlightening and reforming their unhappy inmates. She
met her fate with great composure; leaving behind her a
paper in which, after describing what she had suffered from
the ferocity of her gaoler, and others who had oppressed her,
she complained of “the tyranny of him, the great one of all,
* Original letters in the State Paper Office: Sunderland to Jeffreys, Sept.
14. 1685; Jeffreys to the King, Sept. 19. 1685. :
$+ Commons’ Journals, Oct. 9., Noy. 10., Dec. 26. 1690; Oldmixon, 706.
78
CHAP.
XXII.
Supposed
reluctance
of Jeffreys
to support
James
against the
Protestant
religion.
LIFE OF CHIEF JUSTICE JEFFREYS. *
to whose pleasure she and so many other victims had been
sacrificed — declaring that in as far as they had injured her-
self she forgave them, but, in that they were implacable ene-
mies of that good cause which would yet revive and flourish,
she left them to the judgment of the King of Kings.” *
To show that the memory of his cruelties remained in the
country in which they were most conspicuously exhibited, so
as to raise a desire to visit them on his descendants to the
third generation, —I should likewise wish to add the anec-
dote that when he had been many years dead, and his name
and title were extinct, the Countess of Pomfret, travelling
into the west of England, having been discovered to be his
granddaughter, was insulted by the populace, and could not
venture to proceed to the scene of the “‘ Bloody Assizes.” f
It has been objected to me, that I have done injustice to
Jeffreys, by representing that he readily acquiesced in all
James’s measures for overturning the religion and liberties
of his country, whereas he condemned many of them. This
charge against me is founded merely on proofs of the hypo-
crisy and duplicity of the great delinquent. He did pretend
to some, who were in opposition to the Court, that his Pro-
testant conscience was shocked by the scheme of bringing in
Popery; but at the same time he put the broad seal to the
Declaration of Indulgence, and, sitting in the illegal Court
of High Commission, he abetted all the proceedings for con-
verting Magdalene College, Oxford, into a Popish seminary.
« The two French agents, who were then resident in London,
had very judiciously divided the English Court between
them. Bonrepaux was constantly with Rochester; and
Barillon lived with Sunderland. Lewis was informed in the
same week by Bonrepaux that the Chancellor was entirely
with the Treasurer, and by Barillon that the Chancellor was
in league with the Secretary.”{ Again: Jeffreys gave out to
one party that he highly disapproved of the proceedings
against the Seven Bishops, while it is quite certain that he
: * 11 St. Tr. 381—455.; Burnet, O. T., i. 649.
+ Granger, “ Jeffreys.”
$ Macaulay, ii. 67., cites Reresby’s Memoirs; Luttrell’s Diary, Feb. 2.
. Jan. 25
5. . peo. 5
168§; Barillon, Feb. 4; Bonrepaux, 7p7q
LIFE OF CHIEF JUSTICE JEFFREYS.
declared in council, “ The Government would be disgraced
if such transgressors were suffered to escape, as was proposed
by Sunderland, with a mere reprimand,” * and that he stre-
nuously recommended the criminal information on which
they were brought to trial — counting with certainty on a
conviction which would induce the right reverend defendants
to save themselves from ruinous fines and long imprison-
ments by serving, both in and out of parliament, the designs
of the Sovereign.” f
Jeffreys held the office of Chief Justice of the King’s
Bench rather more than two years, having been reappointed
to it on the death of Charles II. by James I., who had been
his early patron, and to whom he was more and more en-
deared as his inhuman disposition was more and more deve-
loped. Being created a peer, and introduced into the Cabinet,
he soon undermined, by his superior vigour and servility,
the influence of the Lord Keeper Guilford, and, having
broken the heart of that mean-spirited but not unamiable
man, his ‘‘ campaign in the west” was rewarded with the
great seal.
A month was occupied in considering who should succeed
him as Chief Justice of the King’s Bench. Although Mon-
mouth had been executed, and the blood of rebels had flowed
till the feelings of all classes were outraged, and even the
vengeance of James himself was satiated, the due filling up
of the office was considered a matter of the last importance
to the Government. The plan to change the religion of the
country was now formed, and this was to be carried into
effect by judicial decision rather than by military violence.
The King expected to accomplish his object by extending
what was called the “dispensing power” to all the laws of
the realm, although it had been hitherto confined to common
penal statutes, which were enforced by a pecuniary mulct.
Where was a man to be found who, as head of the Common
* Journal of second Lord Clarendon, June 24. 1688. ; 12 St. Tr. 195.
{ This has been placed beyond all doubt by the original despatches of the
French and Dutch ministers examined by Mr. Macaulay. Barillon, Bt
1688; Citters, July 4; Adda, Foe June +.
79
CHAP.
XXII.
Vacancy in
the office of
Chief Jus~
tice of the
King’s
Bench on
the pro-
motion of
Jeffreys to
be Lord
Chancellor.
Sept. 29.
1685.
Perplexity
about his
successor.
80
CHAP.
XXII.
Sir Edward
Herbert se-
_ lected on
account of
his opinion
on the
“« dispens-
ing
power.”
His origin.
LIFE OF CHIEF JUSTICE HERBERT.
Law Judges, would himself declare, and would induce a ma-
jority of his brethren to join with him in declaring, that the
King had the power contended for,— or, in other words,
that, like the despotic princes on the Continent, he was above
the law? That man was Sir Epwarp HERBERT! Of his
steadiness on this question no doubt could be entertained —
but when his appointment was recommended, two objections
presented themselves: 1st. That he was quite ignorant of his
profession; 2dly. That he was conscientious in his opinions,
and of strictly honourable principles in private life. The former
was easily surmounted from his known zeal in support of
the prerogative; and though it was anticipated that some in-
convenience might arise from his vicious habit of abstaining
from what he believed to be wrong, hopes were entertained
that, from his ultra-Tory notions, he would not boggle at
any thing which might be required of him. Upon the whole,
the opinion at Whitehall was, that, for the King’s service, a
safer choice could not be made. Accordingly, on the 11th
of October, 1685, Sir Edward Herbert took his seat as Chief
Justice of the Court of King’s Bench, and I am called upon
to give a sketch of his life.
He was the youngest son of that Sir Edward Herbert whom
I have commemorated as holding the great seal of England
while in exile with Charles II.* During the Commonwealth,
the children of the titular Lord Chancellor remained in
England with their mother; and, after his death at Paris,
in 1657, they were reduced to great indigence. Edward was
admitted on the foundation of Winchester School, and was
elected from thence a probationer fellow to New College,
Oxford. He was idle and volatile, but much liked for his
warmth of heart and gentlemanly demeanour. He inherited
a strong abhorrence of Roundheads, and he considered the
Whigs as the same republican party under another name.
From his earliest recollection to his latest breath, he looked
upon the five members of the House of Commons whom his
father, when Attorney General, had impeached of high treason
by order of Charles I., as not less guilty than the regicides
who had sat in the high court of justice; and he thought it
* Lives of the Chancellors, vol. ili. ch. Ixxili.
LIFE OF CHIEF JUSTICE HERBERT.
of essential importance for the public good that the Crown
should be armed with sufficient power to put down and to
punish all who were inclined to sedition or schism.
With this bias on his mind, he began the study of the law
in the Middle Temple, and, setting down all the arbitrary
decisions of judges for sound law, and all the violent acts of
the executive government for good constitutional precedents,
while he imputed everything that he met with on the other
side to faction and popular delusion, he brought himself to
the belief that the kings of England were absolute at all
points, with a very few exceptions; and that, although they
might find it convenient to consult a parliament, they might
rule, if they chose, by their own authority. But his know-
ledge of law was superficial, and was confined almost exclu-
sively to cases connected with politics.
Under Charles II. there was a disposition to do as much
as possible for the Herberts, on account of the sufferings of
their father in the royal cause ; and the two elder sons were
pushed on in the army and navy: but there was much diffi-
culty in making any provision for Edward, who was called
a lawyer, but was wholly unacquainted with the first prin-
ciples of pleading and conveyancing ; and, never having been
intrusted with a brief by a private client, could not, without
serious risk, be allowed to appear in the King’s business in
Westminster Hall. It was thought, however, that any thing
would do for Attorney General in Ireland, where they have
never been very exact in legal formalities. Accordingly, he
was sent over there, and for several years was supposed to
execute the duties of the office decently well under the
Duke of Ormond, the popular Lord Lieutenant. A residence
in Dublin was then considered distant banishment. The transit
from thence to London was often attended with great peril
and delay, and intelligence was interchanged between the
two islands very irregularly. He therefore longed for a
return to civilised life, for which he had a keen relish;
and, having laid by a little money, he resigned the Irish
Attorney Generalship, and came to push his fortune at
Whitehall. Still pretending to practise at the bar, he re-
VOL. Il. G
81
CHAP.
XXII.
Formation
of his poli-
tical creed.
He is sent
as Attorney
General to
Treland,
82
CHAP.
XXII.
A.D. 1683.
His posi-
tion on his
return,
A.pD. 1685.
LIFE OF CHIEF JUSTICE HERBERT.
ceived a silk gown. The English attorneys were as shy of
employing him as when he wore bombazin; but his con-
nections, his principles, and his agreeable manners neverthe-
less obtained him favour at Court. He succeeded Sir George
Jeffreys as Chief Justice of Chester; and soon after, on the
promotion of Sir John Churchill to be Master of the Rolls,
he was appointed Attorney General to the Duke of York,
and was knighted. Now he was often consulted on consti-
tutional questions by his royal master, the heir presumptive ;
who, much pleased with the answers returned, set him down
as fit to fill the highest offices in the law. He was particu-
larly firm respecting the dispensing power* ; and—notwith-
standing the doubts upon the subject indicated by high
prerogative lawyers, such as Lord Clarendon, Lord Keeper
Bridgman, Lord Chancellor Nottingham, and Lord Keeper
Guilford — maintained that the royal assent was given to bills
passed by the two Houses of Parliament on the implied con-
dition that the King might suspend the operation of the law
when necessary for the public safety; and that, this power
being essentially inherent in the Crown, no statute could take
it away, or abridge it. He was of the school of political
speculators which produced Filmer, Lestrange, and Brady,
—maintaining that the Crown is the only legitimate source
of authority; that the House of Commons, having been
created by the Crown, is subordinate to the Crown; and
that, as it may still be prorogued or dissolved, as well as
summoned, by the Crown, the Crown is entitled to exercise
a paramount control over all its acts. He sometimes made
a distinction between the King’s power over common law
and statute law; but, although he was known not to be
without some scruples which might be troublesome, his
friends said they would all melt away before his burning
loyalty.
* Clarke, in his Life of James II., mainly rests his justification of that
monarch’s conduct on the authority of Herbert. Speaking of the Test Act, he
says, ‘ One great inducement not to boggle at dispensing with it, was his calling
to mind that in the late King’s time, after his return from Scotland, and that
he began to be much employed in his business, Mr. Herbert, then Ch. Justice
of Chester, told him, that if he desired to re-enter into his former employment,
he could make it appear that it was in the King’s power to dispense with the
Test Act.”
LIFE OF CHIEF JUSTICE HERBERT.
He is not once mentioned in the Reports: he had never
led any important cause, or argued any important point of
law, inan English court; and, although he regularly attended
the King’s Bench in term time, it was for society rather
than for business. He was considered a sort of dilettante
lawyer, and probably he himself thought not of a higher
office than that of Chief Justice of Chester, which only
occupied a few days of his time twice a year. It is quite
certain that he never solicited, or in any way intrigued for,
the office of Chief Justice of the King’s Bench, so that he
was greatly astonished when it was offered to him. He did
not hesitate to accept it when he was told that the King
required his services.
There is no record of the ceremony of his installation.
The merits and sufferings of his father must have constituted
the staple of the Chancellor’s address to him; and his answer
must have been confined to the expression of gratitude for
the unexpected dignity, and sincere good intentions in the
fulfilment of his new duties. *
The profession and the public, without nicely scanning his
legal qualifications, were pleased to see mildness, equanimity,
and sobriety again adorning the seat of justice, lately dis-
graced by fierceness, violence, and drunkenness. Even those
who most highly disapproved of his politics were disposed to
speak kindly of him. Says Burnet, “He was a well bred
and a virtuous man, generous and good natured, although an
indifferent lawyer. He unhappily got into a set of very
high notions with relation to the King’s prerogative. His
gravity and virtues gave him great advantages; chiefly his
succeeding such a monster.” f
He was sworn a member of the Privy Council, but he
was never admitted into the Cabinet.
In the private cases which came before him he was entirely
guided by the opinion of the Puisne Judges; and, by dis-
eretion, and speaking only as he was prompted, he made a
very respectable appearance, and the vulgar called him a
great Judge.
* See 2 Shower, 434.; 3 Modern Reports, 71.
+ Burnet, O. T., ii. 362, 363.
a 2
83
CHAP.
XXII.
A.D. 1685,
He is made
Chief Jus-
tice of the
King’s
Bench.
October.
Favourable
inclination
towards
him, not-
withstand-
ing his un-
fitness.
84
CHAP.
XXII.
A.D. 1686.
Opinion
delivered
by him on
the trial of
Lord Dela-
mere.
REIGN OF JAMES II.
The first political case in which an opinion was required
from him was the prosecution of Lord Delamere for high
treason ; and, as the prerogative of the Crown was not con-
cerned in the question submitted to him, he displayed on this
occasion moderation and diffidence. ‘The noble lord, the ob-
ject of the prosecution, had, when a member of the House
of Commons, given mortal offence to Jeffreys, who now sat
as his judge, and was eager to convict him. The trial took
place before the Lord High Steward and a select number of
Peers, — the Judges attending as assessors. The whole day
being spent in giving evidence for the Crown, the noble
prisoner applied for an ajournment till next morning, before
opening his defence Jeffreys determined, if possible, to
sentence him to be hanged, beheaded, and quartered before
going to sleep; but, desirous to keep up appearances, and to
throw upon others the odium of the precipitation which he
desired, said he would willingly comply with the request if
the law would allow of an adjournment, which much doubting,
he would put the question to the Judges. His real inclin-
ation being well known to them, he expected (what he would
have pronounced under the like circumstances) a flat nega-
tive upon the power of adjournment. But Lord Chief
Justice Herbert said, —
“The Judges presume to acquaint your Grace that this is a
matter wholly new to them, and that they know not, upon recol-
lection of all that they can remember to have read, either that
this matter was done or questioned. Had it received a determina-
tion, and been reported in our books, our duty would have been
to contribute all our reading and experience for the satisfaction of
this great Court; but being a new question, and the precedent
being to make a rule respecting the powers and privileges of the
Peers for the time to come, we cannot venture to resolve it. In
the case of the trial of a peer in parliament, there have been ad-
journments from day to day; but whether it makes a difference
that here the Lord High Steward sits judge, and the Peers-triers
are in the nature of a jury, we submit to your Grace’s con-
sideration. In an inferior court the jury, once sworn, are not
allowed to separate, from the fear of corruption; but that reason
seems to fail here, the prisoner being to be tried by his peers, that
are men of unsuspected integrity, and give their verdict upon their
honour.”
LIFE OF CHIEF JUSTICE HERBERT.
The Peers, upon this, were for adjourning, but Jeffreys in
a rage said “that the court was his, and that, he sitting
as sole judge in it, they had no right to regulate its pro-
ceedings.” He then gave a decided judgment that he could
not and would not adjourn, and he ordered the prisoner to
go on with his defence, saying that “ by law the trial must
finish before they separated.” Nevertheless he was dis-
appointed of his prey, for Lord Delamere made an admirable
defence, and the Peers, sympathising with him on account of
the harsh treatment he had received, unanimously acquitted
him. *
Soon after came on the grand question with a view to
which Herbert had been appointed Chief Justice, and he
fully answered the expectation which had been formed of
him.
Judicially to establish the dispensing power, a sham action
was brought by the coachman of Sir Edward Hales against
Sir Edward Hales, his master. The defendant, although a
Roman Catholic, had been appointed Lieutenant of the Tower
of London; and the declaration alleged that, contrary to the
provisions of the Test Act, he had exercised the duties of
the office without having made the declaration against tran-
substantiation or taken the oath of supremacy. By way
of justification, he pleaded “that after the grant of the
office the King, by letters-patent under the great seal, not-
withstanding any statutes or laws in that behalf, dispensed
with his making the declaration against transubstantiation
and with his taking the oath of supremacy, as well as with
his receiving the sacrament according to the rites of the
Church of England.” The plaintiff demurred, admitting the
dispensation and praying judgment upon its validity, Thus
the existence of the dispensing power was regularly raised on
the record, and was to be solemnly decided.
The Chief Justice, although he had no doubts himself,
found it a more difficult task than he had anticipated to
prevail upon the other Judges to agree with him. According
to the usual custom of those days, before the case was argued
in court he assembled all the Judges to deliver their
* 11 St. Tr. 510—599.
G 3
85
CHAP.
XXII,
A.D. 1686,
Sir Edward
Hales’s
Case to es-
tablish the
Dispensing
Power.
86
CHAP.
XXII.
A.D. 1686.
Opposition
of some of
the Judges,
Dissentient
Judges are
dismissed.
REIGN OF JAMES II.
opinion upon it. To his unspeakable surprise, there were
four Judges who declared that the King had no power to
dispense with a statute which Parliament had enacted for the
preservation of the established religion of the country. ‘Their
opposition was the less suspected because they were all four
steady Tories, although not of such extravagantly high pre-
rogative principles as Herbert himself; and they had all four
sat on the trials of Alderman Cornish and Elizabeth Gaunt,
where there had been an extraordinary compliance with the
wishes of the Government. Their contumacy being reported
to the King, he summoned them into his presence, and con-
versed with them at Whitehall, but could make no impression
upon any of them either by soft or angry language. He
thought he might safely calculate upon their supporting him
in any violation of the constitution; but he forgot that
where religion mixes in a controversy it is impossible to
foretel with certainty what will be the conduct of any indi-
vidual or of any body of men. “ Jones, the Chief Justice of
the Common Pleas, a man who had never before shrunk from
any drudgery, however cruel or servile, now held, in the
royal closet, language which might have become the lips of
the purest magistrates in our history.” * Being told that he
must either give up his opinion or his place, “ For my place,”
he answered, “I care little; Iam old and worn out in the
service of the Crown; but I am mortified to find that your
Majesty thinks me capable of giving a judgment which none
but an ignorant or a dishonest man could give.” King: “1
am determined to have twelve lawyers for judges who will be
all of my mind as to this matter.” C. J. Jones: “ Your Majesty
may find twelve judges of your mind, but hardly twelve
lawyers.” James always piqued himself on being a man of
his word, and Jones had his quietus next morning. With
him were dismissed Montagu, Chief Baron of the Exchequer,
and two puisnies, Neville and Charlton. Four new Judges
were appointed, who had taken the royal test by declaring
their belief in the unlimited, illimitable, and eternal nature
of the dispensing power. One of them was the brother of the
author of ‘ Paradise Lost,” and of the “ Defence of the
People of England for putting Charles I. to death.” Sir
* Macaulay, ii, 82.
LIFE OF CHIEF JUSTICE HERBERT.
‘Christopher Milton, recommended by Herbert, was in all
respects a striking contrast to John, as he was not only a
favourer of Popery, and a friend to arbitrary power, but the
dullest of mankind.*
Some delay still arose in carrying the case to a hearing,
for Sawyer, the Attorney General, who had brought Russell
and Sydney to the block, refused to argue this sham demurrer
in favour of an attempt “ to annul the whole statute law from
the accession of Elizabeth.” Heneage Finch, the Solicitor
General, following his example, was turned out of office; and
time was required for the mean-spirited Powys, who succeeded
him, to prepare for his dirty work.
At last the farce was acted, Northey taking the part of
counsel for the plaintiff, and pretending to argue that the
dispensation was no bar to the action; while the new Solicitor
General urged that the King’s prerogative was and is as
much the law of England as any statute, and that, although
the King cannot prejudice private right, the power of dis-
pensing with all public statutes was inseparably annexed to
his crown.
At the close of the argument, Herbert, C. J., said, with
much gravity, that “the Court would take time to consider,”
and on a subsequent day he delivered the following judg-
ment : —
“ This is a case of great consequence, but of as little difficulty
as ever any case was that raised so great an expectation. If the
King cannot dispense with this statute, he cannot dispense with
any penal law whatsoever. There is no law but may be dispensed
with by the supreme lawgiver. The laws of God may be dis-
pensed with by God himself, as appears by God’s command
to Abraham to offer up his son Isaac. So, likewise, the law of
man may be dispensed with by the legislator. A law may be
either too wide or too narrow; the wisest lawgiver cannot foresee
all the consequences of a law, and therefore there must be a power
somewhere able to dispense with it. We have consulted our
brethren who have met and conferred on the subject at Serjeants’
Inn, and, with one exception, they all agree with us in the
* Although not reconciled to Rome, he came so near her, that he would
not communicate with the Church of England. Echard, iii. 797.; Kennet, iii,
451.
a 4
87
CHAP.
XXIL
A.D. 1686.
June 16,
Judgment
of Chief
Justice
Herbert.
88
CHAP.
XXII.
A.D. 1686.
Sham dis-
sent of
Judge
Street,
REIGN OF JAMES II.
‘
opinion that the kings of England are absolute sovereigns ; that
the laws of England are the King’s laws; that the King has power
to dispense with any of his laws as he sees necessity for it; that
the King is the sole judge of that necessity ; and that this is not
a trust invested in or granted to the King by the people, but the
ancient sovereign power and prerogative of the kings of England,
which never yet was taken from them nor can be by parliament or
any human means. My brother Street, indeed, is of opinion that
the King, notwithstanding his general dispensing power, cannot
validly grant the dispensation pleaded by the defendant; but that
is the opinion of one single judge against the opinion of eleven.
We therefore give judgment for the defendant.” *
Without the privity of Herbert, who was too honourable a
man to have countenanced such trickery, Street, who was
known to be the most servile Judge on the bench, who would
have been instantly turned adrift if he had been sincerely
opposed to the dispensing power, but who cared as little for
religion as for law, had been ordered to dissent, for the pur-
pose of leading the public to believe that the Judges, left to
the freedom of their own will, had decided for the Crown by
a vast majority, without being entirely unanimous. So in-
famous a wretch was Street, that, at the Revolution, on the
strength of this collusive dissent, he attempted to make court
to King William ; but, his real baseness being exposed, he met
with a mortifying rebuff f
Upon this judgment Sir Robert Atkyns, then an ousted
Judge (afterwards made Chief Baron of the Exchequer),
* 11 St. Tr. 1165—1198.
+ “ Dec. 27. 1688. Tuesday, in the morning, I went to St. James’s with
Judge Street to present him to the Prince; but I was told the Prince was busy,
and I could not get admittance. While I was in the outward room, my Lord
Coote came to me and told me he was sorry to see me patronise Street. He did
not join in the judgment for the dispensing power ; but he is a very ill man. I
have given the Prince a true character of him; and therefore I desire your
Lordship will not concern yourself any more for him.” — Diary of Henry, Earl
of Clarendon,
However, when Judge Street died, a splendid marble monument was erected
to his memory, with an inscription which asserts that he was the only honest
Judge in the reign of James II. ; and thus concludes : —
“,... faithful found;
Among the faithless, faithful only he ;
Among innumerable false, unmoved,
Nor number, nor example, with him wrought,
To swerve trom truth, or change his constant mind,
Though single.” — Granger.
LIFE OF CHIEF JUSTICE HERBERT.
having published a very severe commentary, Chief Justice
Herbert published a pamphlet in his own vindication, —in
which he produced what he called his authorities, and, in
answer to the personal reflections upon himself, observed, —
“T can truly say that I never heard of this action till it was
actually brought. If it be a feigned action, the law is as well
settled in a feigned action as in atrue. ‘There are feigned actions
directed out of Chancery every day, and why may not the King
direct such an action to be brought to satisfy himself whether he
hath such a power? If there were indirect means used to obtain
opinions, I stand upon my innocence, and challenge all the world
to lay anything of that kind to my charge. My part was only to
give my own opinion; and if I have drawn weak conclusions from
what I find in our books, how can I be charged as a criminal?
But I never gave a judgment with so many authorities to warrant
it asin Sir Edward Hales’s case. If it was to keep my judge’s
place, I then became the worst man in the world, only to keep
that which most men know my friends found great difficulty in
persuading me to accept.” *
King James was delighted beyond measure with the
judgment, and with the defence of it ; and, lauding himself for
his sagacity in selecting such a Chief Justice, and taking
personally to himself all the credit of the appointment, he
passed such compliments and lavished such blandishments on
Herbert, that Jeffreys was jealous, and reports were spread
that the great seal would soon be transferred to a new
Chancellor.t
By way of preliminary to the restoration of Popery as the
religion of the state, there soon came out a ‘“ Declaration of
* Whatever we may think of Herbert and his doctrine respecting the dis-
pensing power, they have both had warm admirers, Clarke describes him, in his
Life of James II., as “*a man of eminent learning and known integrity, suf-
ficient to free him without further proof from the censure of partiality;” and
says that, ‘ for his further vindication, he published his reasons with some of the
many citations and examples he might have brought from the law books, which
put the matter so far beyond dispute, that all the erudition of his adversaries or
malice of his detractors could never furnish them with the least colour of a
reply.” — 2 Clarke’s James JT., p. 82. et seq.
t+ Lord Clarendon, in a letter to the Earl of Rochester, dated Dublin Castle,
June 3. 1686, says, “ A story had reached Dublin, that my Lord Chancellor is
in very little credit ; that my Lord Ch. Justice Herbert had exposed him upon
the bench by laying open his briberies and corruptions (as they are called) in
the West, with which the King is extremely offended, insomuch that it is said he
will not be long in his place.” — Corresp. of Clar, and Roch. p. 426.
89
CHAT
XXII.
A.D. 1686,
Herbert in
high favour
and likely
to be Chan-
cellor,
Herbert
on the
Western
Circuit,
Herbert
offends the
King by
REIGN OF JAMES II.
Indulgence,” by which all sects of Christians were to be al-
lowed to profess their faith without being subject to any
disability, forfeiture, or penalty; and Herbert, sincerely
thinking this a lawful exercise of the royal prerogative, de-
lighted the King more than ever, not only by pronouncing
in favour of its legality, but by actually assisting in giving
effect to it. ‘ Since the Church party could not be brought
to comply with the design of the Court, applications were
now made to the Dissenters; and all on a sudden the chureh-
men were disgraced, and the dissenters were in high favour.
Chief Justice Herbert went the Western Circuit after
Jeffreys’s bloody one. And now all was grace and favour
to them. Their former sufferings were much reflected on and
pitied. Every thing was offered that could alleviate their
sufferings. Their teachers were now encouraged to set up
their conventicles again, which had been discontinued, or
held very secretly, for four or five years, and intimations were
given that the King would not have them or their meet-
ings to be disturbed.” *
Burnet, from whom we have this account, adds, “ Jeffreys
was much sunk at Court, and Herbert was the most in favour.
But now Jeffreys, to recommend himself, offered a bold and
illegal advice.” | This was to revive the Court of High
Commission, whereby the clergy who should oppose the
introduction of Popery might be deprived of their livings
and punished for their contumacy. The author of this
scheme was for a time dearer than ever to his master t, — but
before long there were again thoughts of removing hin, as
the brutality of his conduct and his manners threw discredit
on the Government; and Jeffreys himself, who was always
alarmed by rivals, had once more serious dread of being sup-
planted by Herbert. But, all of a sudden, Herbert was dis-
eraced, and Jeffreys was firmly established ig power.
This change was produced by a point of law, on which,
strange to say! the Chief Justice of the King’s Bench, sup-
OT) diane es 1 ib. 367. 870.
+ “ The Court being established, Jeffreys was made perpetual president —
sine quo non——to guard against the influence of Herbert, who was named a
member of it.”— Jb
LIFE OF CHIEF JUSTICE HERBERT.
posed to be slavishly obsequious, gave an opinion most highly
distasteful to the owner of the dispensing power.
The plan was formed of ruling by a standing army. But,
without a parliament, how was this army to be kept in a
proper state of discipline? In time of war, or during a rebel-
lion, troops in the field were subject to martial law, and they
might be punished, by sentence of a court martial, for mutiny
or desertion. But the country was now in a state of peace and
profound tranquillity ; and the common law, which alone pre-
vailed, knew no distinction between citizen and soldier; so
that, if a life-cuardsman deserted, he could only be sued for
breach of contract, and if he struck his officer he was
only liable to an indictment or an action of battery. While
the King’s military force consisted of a few regiments of
household troops, with high pay, desertion was not to be
apprehended, and military offences were sufficiently punished
by dismission from the service. But James found it impos-
sible to govern the numerous army which he had collected at
Hounslow without the assistance of martial law, — and he
contended that, without any act of parliament, he was at all
times entitled, by virtue of his prerogative, to put martial
law in force against military men, although it could only be
putin force against civilians when war or rebellion was raging
in the kingdom.
The question first arose at the Old Bailey, before Sir John
Holt, then Recorder of London, and he decided against the
Crown, as might have been expected ; for, while avoiding keen
partizanship in politics, he had been always Whiggishly in-
clined. James thought he was quite secure by appealing to the
ultra-Tory, Lord Chief Justice Herbert. To the utter amaze-
ment of the King and the courtiers, this honourable, although
shallow, magistrate declared that, without an act of parlia-
ment, all laws were equally applicable to all his Majesty’s
subjects, whether wearing red coats or grey. Being taunted
with inconsistency in respect of his judgment in favour of the
dispensing power, he took this distinction, “that a statute
altering the common law might be suspended by the King,
who is really the lawgiver, notwithstanding the form that
he enacts, ‘ with the assent of the Lords Spiritual and Tem-
91
CHAR
XXII.
denying
his power
to enforce
martial law
in time of
peace.
92
CHAP,
XXII.
A.D. 1687.
Herbert re-
fuses to
sanction
the execu-
tion of a
deserter
unlawfully
convicted.
April 16.
REIGN OF JAMES II.
poral, and Commons;’ but that the common law cannot be
altered by the King’s sole authority, and that the King can
do nothing contrary to the common law, as that must be
considered coeval with the monarchy.”
James, with the infatuated obstinacy which was now driving
him to destruction, set this opinion at defiance; and, en-
couraged by Jeffreys, caused a soldier to be capitally prose-
cuted, at the Reading assizes, for deserting his colours. ‘The
judges presiding there resorted to some obsolete inapplicable
act of parliament, and were weak enough to lay down the
law in the manner suggested to them by the Chancellor, so
that a conviction was obtained. To give greater solemnity
and éclat to the execution, the Attorney General moved the
Court of King’s Bench for an order that it might take place
at Plymouth, in sight of the garrison from which the prisoner
had run away. But Herbert peremptorily declared that the
Court had no jurisdiction to make such an order, and prevailed
on his brother Wythens to join with him in this opinion.
Mr. Attorney took nothing by his motion, but the recreant
Chief Justice and the recreant Puisne were both next
morning dismissed from their offices, to make way for the
most sordid wretches to be picked up in Westminster Hall —
Sir Robert Wright, and Sir Richard Allibone, a professed
papist.* Burnet, who has since been generally followed,
represents that these removals took place on the eve of
the trial of the Seven Bishops, and with a view to their con-
viction; but, in truth, the Second Declaration of Indulgence,
out of which this celebrated prosecution arose, was not issued
till a twelvemonth afterwards, and no human being had then
imagined that the venerable fathers of the Anglican Church
were to be arraigned at the bar of a criminal court for de-
fending their religion in accordance both with human and
divine laws.t
In consideration of Herbert’s past services, in enabling
* Rex vy. William Beal, 3 Mod. 124, We shall find that they unserupulously
made the order. ‘ Even previous to these removes and changes, the Court was
gratified, and the people shocked, with the execution of two deserters, one of
whom was hanged in Covent Garden, and the other on Tower Hill.” —
1 Ralph. 961.
+ Burnet’s Own Times, ii. 466.
LIFE OF CHIEF JUSTICE HERBERT.
the King to appoint the members of his own religion to all
civil offices under colour of judicial decision, — instead of being
at once reduced to the ranks he was transferred to the office
of Chief Justice of the Common Pleas, where it was thought
he could do little harm.
His notions of loyalty prevented him from making any
complaint of an act done in the exercise of an undoubted
prerogative of the Crown, and he quietly submitted to his
fate. Jeffreys took care that he should be cut off from the
chance of returning favour by having him forbidden to come
to Whitehall; and, as he was confined to the obscure duties
of his office in considering dry questions of real property
law, we read little more respecting him during the remainder
of this reign.
Being sadly deficient in professional knowledge, and his
puisnies, Street, Jenner, and Jutwyche, being almost equally
incompetent, the decisions of the Common Pleas while he
presided there are not reported ; and we are not even amused
by his blunders, which are said to have been many and
grievous. He still supported the Government in as far as he
thought he honestly could, and, in the summer circuit of
1688, “he declared the intention of the King to call a par-
liament in November at the farthest, recommending the
choice of such members as would comply with the King’s
wishes in repealing the penal laws and tests.” *
At the investigation instituted, when too late, to contradict
the story that James’s son (afterwards known by the name
of the Old Pretender) was a supposititious child, brought
into the Queen’s bedchamber in a warming-pan, Herbert
attended as a privy councillor, and was of considerable service
in conducting the examinations, which might have convinced
all reasonable persons of the genuineness of the birth.t
The most honourable part of his career remains to be de-
scribed. At the Revolution he did not, like Marlborough
and others who had been loaded with Court favours, turn
against his old- master; nor did he, like some of James’s
councillors, who had remained true to him till he fled, attempt
* Rutt’s Life of Calamy, i. 335. n. f 12 St. Tr.123,
93
CHAP.
XXII.
A.D. 1687,
1688.
Herbert is
dismissed
from the
office of
Chief Jus-
tice of the
King’s
Bench, and
made Chief
Justice of
the Com-
mon Pleas.
At the Re-
volution,
Herbert
adheres to
King
James,
94
CHAP.
XXII.
A.D. 1689.
He is made
Lord Chan-
cellor by
King
James in
exile.
A.v. 1698.
He is ex-
cepted
from the
Act of In-
demnity.
Testimo-
nies to his
private
worth,
REIGN OF JAMES II.
to make peace with the new Government. Forgetting the
harsh usage which he had experienced, and conscientiously
believing in the divine right of kings, he renounced his
country, and followed into exile him whom he still considered
his legitimate sovereign, —although his own brothers were
William’s staunchest supporters, and could easily have ob-
tained his pardon on his making any concession to the new
Government.
After the battle of the Boyne, when James finally settled
at St. Germaine’s, and formed his mock ministry there, he
got a new great seal fabricated by an engraver at Paris. This
he delivered to Sir Edward Herbert, with the title of ** Lord
Chancellor of England ;” and the first use made of it was to
affix it to a patent creating him Lord Portland, Baron Port-
land of Portland in the county of Dorset. He, no doubt,
hoped to return, a second Clarendon, to enjoy in his native
land the office granted to him while a banished man: but he
was destined, like his own father, to be never more than a
titular Chancellor, and to end his days in exile. Forty-one
years after the death of his father, at Paris, he died there,
and was interred in the same cemetery.
As he had so openly taken part with the Jacobites, he was
expressly excepted from the Act of Indemnity passed by King
William and Queen Mary; but this step was taken with re-
luctance, and, in the debates which led to it, strong testimony
was borne to his good qualities : —
Mr. Hawles : “ If Iwould consult my affection, this is a gentle-
man I would have pardoned. I know him an honest gentleman.
If I would plead for any of them, it should be for him. But since
the penalty of death is passed over, yet I would have a punish-
ment, though a mild one, and except him.” Sir Robert Cotton:
“Herbert did not come up to other judges, and order soldiers to be
hanged for deserting their colours in time of peace.” Mr. Kendal :
“ Thope you will consider Lord Chief Justice Herbert for the sake
of a noble person, his brother, who lately had your thanks for good
services in the cause of our liberties.” Mr. Holt: “I had my
education in Winchester College with Lord Chief Justice Her-
bert. Ihave discoursed this point of dispensation with him, and
I can say it was his own true opinion; for he aimed at nothing of
preferment, and he went not so far as King James would have
LIFE OF CHIEF JUSTICE WRIGHT.
had him.” However, it was resolved without a division, “ that
Sir Edward Herbert be excepted out of the bill of indemnity, in
respect of his having illegally decided that the King could dis-
pense with the statutes of the realm.” *
He left no issue, and his title of Portland was given to
the branch of the illustrious family of Bentinck settled in
England. It is a curious fact that he, the youngest of the
family, alone adhered to the Cavalier principles of old Sir
Edward; for the eldest brother, who rose to be a Geueral in
the army, fell fighting for King William in the battle of
Aghrim,—while Arthur, the other brother, the famous Admiral
Herbert, (subsequently Earl of Torrington,) after having
resolutely opposed the suspension of the Test Act, favoured
the landing of the Prince of Orange, and was greatly instru-
mental in accomplishing the Revolution.+
I now come to the last of the profligate Chief Justices of
England, for since the Revolution they have all been men of
decent character, and most of them have adorned the seat of
justice by their talents and acquirements as well as by their
virtues. Srr Ropert Wriaut, if excelled by some of his
predecessors in bold crimes, yields to none in ignorance of his
profession, and beats them all in the fraudulent and sordid
vices.
He was the son of a respectable gentleman who lived near
Thetford, in Suffolk, and was the representative of an ancient
family long seated at Kelverstone, in Norfolk}; he enjoyed
the opportunity of receiving a good education at Thetford
Free Grammar School, and at the University of Cam-
brdge; and he had the advantage of a very handsome person
and agreeable manner. But he was by nature volatile,
obtuse, intensely selfish,—with hardly a particle of shame,
and quite destitute of the faculty of distinguishing what was
base from what was honourable. Without any maternal
spoiling, or the contamination of bad company, he showed the
worst faults of childhood, and these ripened, while he was
* 5 Parl. Hist. 336.
+ Burnet, ii. 365. 491. 510—527. ; Wood's Fasti, “ Chief Justice Herbert.”
+ MS. in Coll. Armor., furnished to me by my friend Mr. Pulmaa.
95
CHAP.
XXIT.
His bru-
thers
Whigs.
Eminence
of Sir Ro-
bert
Wright
among bad
Judges.
His origin,
His idle-
ness and '
depravity.
96
CHAP.
XXII.
He fails in
the profes-
sion of the
law.
Fraud and
perjury of
which he
was guilty.
LIFE OF CHIEF JUSTICE WRIGHT.
still in early youth, into habits of gaming, drinking, and every
sort of debauchery. There was a hope of his reformation
when, being still under age, he captivated the affections of
one of the daughters of Dr. Wren, Bishop of Ely, and was
married to her. But he continued his licentious course of
life, and, having wasted her fortune, he treated her with
cruelty.
He was supposed to study the law at an Inn of Court, but
when he was called to the bar he had not imbibed even the
first rudiments of his profession. Nevertheless, taking to the
Norfolk Circuit, the extensive influence of his father-in-
law, which was exercised unscrupulously in his favour, got
him briefs, and for several years he had more business than
North (afterwards Lord Keeper Guilford), a very industrious
lawyer, who joined the circuit at the same time. “ But
withal,” says Roger, the inimitable biographer, “he was so
poor a lawyer that he could not give an opinion upon a written
case, but used to bring such cases as came to him to his friend
Mr. North, and he wrote the opinion on a paper, and the
lawyer copied it and signed under the case as if it had been
his own. It run so low with him, that when North was at
London he sent up his cases to him and had opinions returned
by the post ; and inthe mean time he put off his clients upon
pretence of taking more serious consideration.” *
At last the attorneys found him out so completely that
they entirely deserted him, and he was obliged to give up prac-
tice. By family interest he obtained the lucrative sinecure of
“Treasurer to the Chest at Chatham,” but by his voluptuousand
reckless course of life he got deeper and deeper in debt, and he
mortgaged his estate to Mr. North for 15002, the full amount
of its value. From some inadvertence the title-deeds were
allowed to remain in Wright’s hands, and, being immediately
again in want, he applied to Sir Walter Plummer to lend him
5002. on mortgage, offering the mortgaged estate as a security,
and asserting that this would be the first charge upon it.
The wary Sir Walter thought he would make himself doubly
safe by requiring an affidavit that the estate was clear from
all incumbrances. This affidavit Wright swore without any
* Life of Guilford, ii. 173.
LIFE OF CHIEF JUSTICE WRIGHT.
hesitation, and he then received the 5001. But the money
being spent, and the fraud being detected, he was in the
greatest danger of being sent to gaol for debt, and also of
being indicted for swindling and perjury.
He had only one resource, and this proved available.
Being a clever mimic, he had been introduced into the circle
of parasites and buffoons who surrounded Jeffreys, at this
time Chief Justice of the King’s Bench, and used to make
sport for him and his companions in their drunken orgies by
taking off the other judges, as well as the most eminent
counsel, One day, being asked why he seemed to be melan-
choly, he took the opportunity of laying open his destitute
condition to his patron, who said to him, “* As you seem to
be unfit for the bar, or any other honest calling, I see nothing
for it but that you should become a judge yourself.” Wright
naturally supposed that this was a piece of wicked pleasantry,
and, when Jeffreys had declared that he was never more
serious in his life, asked how it could be brought about, for
he not only felt himself incompetent for such an office, but he
had no interest, and, still more, it so happened, unfortunately,
that the Lord Keeper Guilford, who made the judges, was
fully aware of the unaccountable lapse of memory into which
he had fallen when he swore the affidavit for Sir Walter
Plummer, that his estate was clear from all encumbrances,
the Lord Keeper himself being the first mortgagee. Jeffreys,
C. J.: “ Never despair, my boy; leave all that to me.”
We know nothing more of the intrigue with certainty,
till the following dialogue took place in the royal closet.
We can only conjecture that in the meanwhile Jeffreys, who
was then much cherished at Court, and. was impatient to
supersede Guilford entirely, had urgently pressed the King
that Wright might be elevated to the bench as a devoted
friend of the prerogative, and that, as the Lord Keeper had a
prejudice against him, his Majesty ought to take the appoint-
ment into his own hands. But we certainly know that, a
vacancy occurring in the Court of Exchequer, the Lord
Keeper had an audience of his Majesty to take his pleasure
on the appointment of a new Baron, —and that he named a
gentleman at the bar, in great practice and of good character,
VOL, II. H
97
CHAP.
XXII.
A.D. 1684,
He is
patronised
by Jef-
freys,
How he
was made
a judge,
98
CHAP.
XXII.
A.D. 1684,
LIFE OF CHIEF JUSTICE WRIGHT.
as the fittest person to be appointed, thinking that Charles
would nod assent with his usual easy indifference, — when,
to his utter amazement, he was thus interrogated: “* My
Lord, what think you of Mr. Wright? Why may not he
be the man?” Lord Keeper: “ Because, Sir, I know him
too well, and he is the most unfit person in England to be
made a judge.” King: “Then it must not be.” Upon this
the Lord Keeper withdrew, without having received any other
notification of the King’s pleasure; and the office remained
vacant. ;
Again there is a chasm in the intrigue, and we are driven
to guess that Jeffreys had renewed his solicitation, — had
treated the objections started to Wright as ridiculous, — and
had advised the cashiering of the Lord Keeper if he should
prove obstinate. The next time that the Lord Keeper was in
the royal presence, the King, opening the subject of his own
accord, observed, ‘Good my Lord, why may not Wright be a
judge? He is strongly recommended to me; but I would
have a due respect paid to you, and I would not make him
without your concurrence. Is it impossible, my Lord?”
Lord Keeper: “ Sir, the making of a judge is your Majesty’s
choice, and not my pleasure. Iam bound to put the seal as
I am commanded, whatever the person may be. It is for
your Majesty to determine, and me, your servant, to obey.
But I must do my duty by informing your Majesty of the
truth respecting this man, whom I personally know to be a
dunce, and nolawyer; who is not worth a groat, having spent
his estate by debauched living; who is without honesty,
having been guilty of wilful perjury to gain the borrowing
of asum of money. And now, Sir, I have done my duty to
your Majesty, and am ready to obey your Majesty’s com-
mands in case it be your pleasure that this man be a judge.”
The King thanked the Lord Keeper without saying more,
but next day there came a warrant under the sign manual for
creating the King’s “ trusty and well-beloved Robert Wright”
a Baron of his Exchequer, and orders were given for making
out the patent in due form.
Meanwhile, Jeffreys gave an instance of that grotesque
buffoonery with which he loved to intermix his most atrocious
LIFE OF CHIEF JUSTICE WRIGHT.
actions. He wished to proclaim to the world, as a proof of
his ascendancy, that he had promoted Wright to be a judge
in spite of the Lord Keeper. ‘Therefore, while the Lord
Keeper was sitting on the bench, Jeffreys, arrayed in his
costume as Chief Justice, entered Westminster Hall, and in
the midst of a vast crowd of barristers and strangers walked
up towards the Court of Chancery, which was then open
to the hall: “he then beckoned to Wright to come to him,
and, whispering in his ear, he flung him off, holding out his
arms towards the Lord Keeper, as much as to say, ‘in spite
of that man above there, thou shalt be a judge.” His
Lordship “saw all this, as it was intended he should, and
it caused him some melancholy.” * But, rather than give up
the great seal, his Lordship affixed it to Wright’s patent ; and
the detected swindler, knighted and clothed in ermine, took
his place among the twelve judges of England.
** Some may allege that I bring forward circumstances too
minute; but I fancy myself a picture-drawer, and I am to
give the same image to a spectator as I have of the thing
itself, which I desire should be here represented. History
is, as it were, the portrait or lineament, and not the bare
index or catalogue, of things done; and without the why and
the how, all history is jejune and unprofitable.” f Therefore
I should like to explain the motive of Jeffreys for such an
appointment. He could not possibly have received a bribe
for it, Wright not having a shilling in the world to give him ;
and it did not lead to the shedding of blood, whereby a
natural taste of his might be gratified;—but he perhaps wished
to have upon the bench a man whom he considered more
obnoxious to censure than himself; or he might simply look to
the gratification of his vanity, by showing his influence to be so
great that, in spite of the Lord Keeper, he could elevate to be
a Baron of the Exchequer a man whom no one else would have
proposed for a higher office in the law than that of a bound-
bailiff.t People were exceedingly shocked when they saw
* Life of Guilford, ii. 175, 176. Py Ibe hTs.
+ J have heard it repeated as a saying of a departed statesman, who long ruled
over Scotland, that “a minister gains much more by appointing a worthless than
A 2
99
CHAP.
».@.9 8 F
A.D. 1684.
Scene in
Westmin-
ster Hall
between
the Lord
Chief Jus-
tice of the
King’s
Bench and
the. Lord
Chancellor.
100
CHAP.
XXII.
AD. 1685..
Wright
promceted
from being
a Baron of
the Exche-
quer to be
a Justice of
the King’s
Bench.
Oct. 11.
He is made
Chief Jus-
tice of the
King’s
Bench,
April 21,
1687.
REIGN OF JAMES II.
the seat of justice so disgraced; but this might be what he
intended ; and one of his first acts, when he himself obtained
the great seal, was to promote his protégé from being a Baron
of the Exchequer to be a Judge of the Court of King’s
Bench.
Wright continued to do many things which caused great
scandal, and, therefore, was dearer than ever to his patron,
who would have discarded him if he had shown any symp-
toms of reformation. He accompanied General Jeffreys as
aide-de-camp in the famous “campaign in the West :”—in
other words, he was joined in commission with him as a
Judge in the “ bloody assize,” and, sitting on the bench with
him at the trial of Lady Lisle and the others which fol-
lowed, concurred in all his atrocities.* He came in for very
little of the bribery, —Jeffreys, who claimed the lion’s share,
tossing him by way of encouragement one solitary pardon, for
which a small sum only was expected.
_ But on the death of Sir Henry Beddingfield he was made
Chief Justice of the Common Pleas; and very soon after-
wards, the unexpected quarrel breaking out between Sir Ed-
ward Herbert and the Government about martial law and the
punishment of deserters, — the object being to find some one
who by no possibility could go against the Government, or
hesitate about doing any thing required of him however
base or however bloody, Wright was selected as Chief
Justice of the King’s Bench. Unluckily we have no ac-
count of the speeches made at any of his judicial installa-
tions, so that we do not know in what terms his learning
and purity of conduct were praised, or what were the pro-
mises which he gave of impartiality and of rigorous adherence
to the laws of the realm.
On the very day on which he took his seat on the bench
he gave good earnest of his servile spirit. The Attorney
a worthy man to a public cffice, for in the latter case only a few can hope for
favour, whereas in the former the great mass of the population consider them-
selves within reach of the government patronage, and in consequence are eager
to support you,”
_™ Granger’s expression is, “ He had his share in the Western massacre ”
— (p. 311.).
LIFE OF CHIEF JUSTICE WRIGHT.
General renewed his motion for an order to execute at
Plymouth the deserter who had been capitally convicted at
Reading for deserting his colours.* The new Chief Justice,
without entering into reasons, or explaining how he came to
differ from the opinion so strongly expressed by his pre-
decessor, merely said ‘‘ Be it so!” The puisnies now nodded
assent, and the prisoner was illegally executed at Plymouth
under the order so pronounced. f
Confidence was entirely lost in the administration of justice
in Westminster Hall, for all the three Common Law courts
were at last filled by incompetent and corrupt Judges. Petti-
fogging actions only were brought in them, and men settled
their disputes by arbitration or by taking the opinion of
counsel. The Reports during the whole reign of James II.
hardly show a single question of importance settled by judi-
cial decision. Thus, having no distinct means of appre-
ciating Chief Justice Wright’s demerits as a Judge in private
causes, we must at once follow him in his devious course as
a political Judge.
The first occasion on which, after his installation, he drew
upon himself the eyes of the public was when he was sent
down to Magdalene College, Oxford, for the purpose of
turning it into a popish seminary. Upon a vacancy in the
office of president, the fellows, in the exercise of their un-
doubted right, had elected the celebrated Dr. Hough, who
had been duly admitted into the office; and the preliminary
step to be taken was to annul the election, for the purpose of
making way for another candidate named by the King.
There were associated with Wright, in this commission, Cart-
wright, Bishop of Chester, who was ready to be reconciled
to Rome in the hope of higher preferment, and Sir Thomas
Jenner, a Baron of the Exchequer, a zealous follower in the
footsteps of the Chief Justice of the King’s Bench. Nothing
could equal the infamy of their object except the insolence
of their behaviour in trying to accomplish it. They entered
Oxford escorted by three troops of cavalry with drawn
+ Rex vy. William Beal, 3 Mod. 124, 125.
H 3
* Ante, p. 92.
101
CHAP:
XXII,
A.D. 1687.
He orders
a deserter
to be
hanged,
contrary to
law.
October.
He acts as
one of the
visitors to
introduce
popery into
Magdalene
College,
Oxford.
102
CHAP,
XXIE
A.D. 1687.
REIGN OF JAMES II.
swords, and, having taken their seats with great parade in the
hall of the college, summoned the fellows to attend them.
These reverend and gallant divines appeared, headed by their
new president, who defended his rights with skill, temper,
and resolution; steadily maintaining that, by the laws of
England, he had a freehold in his office, and in the house and
revenues annexed to it. Being asked whether he submitted
to this royal visitation, he answered, —
“My Lords, I do declare here, in the name of myself and the
fellows, that we submit to the visitation as far as it is consistent
with the laws of the land and the statutes of the college, and no
further.” Wright, C. J.: “ You cannot imagine that we act con-
trary to the laws of the land; and as to the statutes, the King has
. dispensed with them. Do you think we come here to break the
laws?” Hough: “It does not become me, my Lords, to say so;
but I will be plain with your Lordships. I find that your com-
mission gives you authority to alter the statutes. Now, I have
sworn to uphold and obey them; I must admit no alteration of
them, and by the grace of God never will.” He was asked whether
one of the statutes of the Founder did not require mass to be said
in the college chapel; but he answered, “ not only was it un-
lawful, but it had been repealed by the act of parliament requiring
the use of the Book of Common Prayer.” However, sentence
was given, that the election of Hough was void, and that he be
deprived of his office of president. Hough: “Ido hereby pro-
test against all your proceedings, all you have done, or shall
hereafter do, in prejudice of me and my right, and I appeal to my
sovereign lord the King in his courts of justice.” “ Upon which
(says a contemporary account), the strangers and young scholars
in the hall gave a hum, which so much incensed their Lordships,
that the Lord Chief Justice was not to be pacified, but, charging
it upon the President, bound him in a bond of 1000/., and security
to the like value, to make his appearance at the King’s Bench bar
the 12th of November; and, taking occasion to pun upon the Pre-
sident’s name, said to him, ‘Sir, you must not think to huff us.”
He then ordered the door of the President’s house to be broken
open by a blacksmith ; and a Fellow observing, “ I am informed
that the proper officer to gain possession of a freehold is the
sheriff with a posse comitatus,” Wright said “I pray who is the
best lawyer, you or 1? Your Oxford law is no better than your
LIFE OF CHIEF JUSTICE WRIGHT.
Oxford divinity. If you have a mind to a posse comitatus, you
may have one soon enough.”
Having ejected Hough, issued a mandate for expelling all
the contumacious Fellows, and ensured the expulsion of James
from his throne, the Commissioners returned in triumph to
London. *
Wright was likewise a member of the Ecclesiastical Court
of High Commission, of which Jeffreys was president, and
he strenuously joined in all the judgments of that illegal and
arbitrary tribunal, which, with a non obstante, had been
revived in the very teeth of an existing act of parliament.
He treated with ridicule the scruples of Sancroft, the Arch-
bishop of Canterbury, and others who refused to sit upon it,
and he urged the infliction of severe punishment on all who
denied its jurisdiction.
Although he was not a member of the Cabinet, he usually
heard from the Chancellor the measures which had been
resolved upon there, and he was ever a willing tool in
carrying them into effect.
When the clergy were insulted, and the whole country
was thrown into a flame, by the fatal Order in Council for
reading the “ Declaration of Indulgence” in all churches and
chapels on two successive Sundays, he contrived an oppor-
tunity of declaring from the bench his opinion that it was
legal and obligatory. Hearing that the London clergy were
almost unanimously resolved to disobey it, he sent a per-
emptory command to the priest who officiated in the chapel
of Serjeants’ Inn to read the Declaration with a loud voice ;
and on the famous Sunday, the 20th of May, 1688, he
attended in person, to give weight to the solemnity. How-
ever, he was greatly disappointed and enraged to find the
service concluded without any thing being uttered beyond
what the rubric prescribes. He then indecently, in the
hearing of the congregation, abused the priest as disloyal,
seditious, and irreligious, for contemning the authority of
the Head of the Church. The clerk ingeniously came forth
to the rescue of his superior, and took all the blame upon
* 12St. Tr, 1—114.
H 4
103
CHAP.
XXII.
A.D. 1687,
He sits as
a member
ofthe High
Commis-
sion Court.
His acti-
vity in
forcing the
clergy to
read the
Declara-
tion of In-
dulgence.
104
CHAP,
XXII.
A.D. 1688.
Prosecu-
of the
Seven
Bishops.
June 8,
Arraign-
ment,
REIGN OF JAMES If.
himself by saying that “he had forgot to bring a copy,”
and the Chief Justice, knowing that he had no remedy, was
forced to content himself with this excuse.”
The Seven Bishops being committed to the Tower, and
prosecuted for a conspiracy to defame the King and to over-
turn his authority, because they had presented a petition to
him praying that they might not be forced to violate their
consciences and to break the law, Wright, the lowest wretch
that had ever appeared on the bench in England, was to
preside at the most important state trial recorded in our
annals. The reliance placed upon his abject subserviency
no doubt operated strongly in betraying the Government
into this insane project of treating as common malefactors
the venerable fathers of the Protestant Church, now regarded
by the whole nation with affectionate reverence. The con-
sideration was entirely overlooked by the courtiers, that, from
the notorious baseness of his character, his excessive zeal
might be revolting to the jury, and might produce an ac-
quittal. It is supposed that a discreet friend of the Go-
vernment had given him a caution to bridle his impetuosity
against the accused, as the surest way of succeeding against
them; for, during the whole proceeding, he was less arro-
gant than could have been expected, and it is much more
probable that his forbearance arose from obedience to those
whom he wished to please, than from any reverence for the
sacred character of the defendants or any lurking respect for
the interests of justice.
They were twice placed at the bar before him; first when
they were brought up by the Lieutenant of the Tower to be
arraigned, and afterwards when a jury was impanneled for
their .trial On the former occasion the questions were
whether they were lawfully in custody, and were then bound
to plead? The Chief Justice checked the opposing counsel
with an air of impartiality, saying, “ Look you, gentlemen,
* The two clergymen who were most applauded on this occasion were—the
bold one, who, refusing to obey the royal mandate, took for his text, “Be it
known unto thee, O King, that we will not serve thy gods, nor worship the golden
image which thou hast set up ;” and the humorous one, who having said, My
brethren, Iam obliged to read this Declaration, but you are not obliged to listen
to it,” — waited till they were all gone, clerk and all, before the reading of the
Declaration began.
LIFE OF CHIEF JUSTICE WRIGHT.
do not fall upon one another, but keep to the matter in
hand.” And, before deciding for the Crown, he said, “I
confess it is a case of great weight, and the persons con-
cerned are of great honour and value. I would be as willing
as anybody to testify my respects and regards to my Lords
the Bishops, if I could see anything in their objections worth
considering, For here is the question, whether the fact
charged in the warrant of commitment be such a misdemeanor
as is a breach of the peace? I cannot but think it is such a
misdemeanor as would have required sureties of the peace,
and if sureties were not given a commitment might follow.”
He was guilty of gross injustice in refusing leave to put in a
plea in abatement; but he thus mildly gave judgment : —
*“ We have inquired whether we may reject a plea, and,
truly, 1 am satisfied that we may if the plea is frivolous;
and this plea containing no more than has been overruled
already, my Lords the Bishops must now plead guilty or not
guilty.”
When the trial actually came on, he betrayed a partiality
for which, in our times, a judge would be impeached; but,
compared with himself, so decorous was he, that he was sup-
posed to be overawed by the august audience in whose pre-
sence he sat. It was observed that he often cast a side
glance towards the thick rows of earls and barons, by whom
he was watched, and who, in the next parliament, might be
his judges. One bystander remarked that ‘he looked as if
all the peers present had halters in their pockets.”
The counsel for the Crown haying, in the first instance,
failed to prove a publication of the supposed libel in the
county of Middlesex, and only called upon the Court to
suppose or presume it, the Chief Justice said—*“I cannot
suppose it; I cannot presume anything. I will ask my
brothers their opinion, but I must deal truly with you; I
think there is not evidence against my Lords the Bishops.
It would be a strange thing if we should go and presume
that these Lords did it when there is no sort of evidence to
prove that they did it. We must proceed according to forms
and methods of law. People may think what they will of
me, but I always declare my mind according to my conscience.
105
CHAP.
XXII.
AD, 1688.
June 29,
Trial,
106
CHAP.
XXII.
A.pd. 1688.
Acquittal
for want o
evidence
prevented
by the in-
discretion
of one of
the coun-
sel.
REIGN OF JAMES IL.
He was actually directing the jury to acquit, and the verdict
of not guilty would have been instantly pronounced, when
Finch, one of the counsel for the Bishops, most indiscreetly
said they had evidence on their side to produce. The young
gentleman was pulled down by his leaders, who desired the
Chief Justice to proceed. And now his Lordship showed the
cloven foot, for he exclaimed, “ No, no, I will hear Mr. Finch.
Go on: my Lords the Bishops shall not say of me that I
would not hear their counsel. I have been already told of
being counsel against them, and they shall never say I would
not hear counsel for them. Such a learned man as Mr. Finch
must have something material to offer. He shall not be
refused to be heard by me, I assure you. Why don’t you
go on, Mr. Finch?”
At this critical moment it was announced that the Earl of
Sunderland, the President of the Council, — who was present
in the royal closet when the Bishops presented their petition
to the King at Whitehall, — was at hand, and would prove a
publication in Middlesex. The Chief Justice then said, with
affected calmness, but with real exultation, “ Well! you see
what comes of the interruption. I cannot help it; it is your
own fault.” There being a pause while they waited for the
arrival of the Earl of Sunderland, the Chief Justice, address-
ing Sir Bartholomew Shower, one of the counsel for the
Crown, whom he had stopped at an early stage of the trial,
and against whom he had some private spite, he observed
with great insolence, “ Sir Bartholomew, now we have time
to hear your speech, if you will. Let us have it.”
At last the witness arrived, and, proving clearly a publica-
tion in Middlesex, the case was again launched, and, after
hearing counsel on the merits, it was to be left to the de-
termination of the jury.
The Chief Justice, thinking to carry it all his own way,
was terribly baffled, not only by the sympathy of the audience
with the Bishops, which evidently made an impression on the
jury, but by the unexpected honesty of one of his brother
judges, Mr. Justice John Powell, who had been a quiet man,
unconnected with politics, and, being a profound lawyer, had
been appointed to keep the Court of King’s Bench from
LIFE OF CHIEF JUSTICE WRIGHT.
falling into universal contempt. Sir Robert Sawyer beginning
to comment upon a part of the Declaration which the Bishops
objected to, “that from henceforth the execution of all laws
against nonconformity to the religion established, or the exer-
cise of any other religion, should be suspended,” Wright, C. J.,
exclaimed, “ I must not suffer this ; they intend to dispute the
King’s power of suspending laws.” Powell, J.: “ My Lord,
they must, necessarily fall upon the point; for, if the King
hath no such power (as clearly he hath not, in my judgment),
the natural consequence will be that this Petition is no
diminution of the King’s regal power, and so not seditious or
libellous.” Wright, C. J.: “ Brother, I know you are full
of that doctrine; but, however, my Lords the Bishops shall
have no occasion to say that I deny to hear their counsel.
Brother, you shall have your will for once; I will hear them:
let them talk till they are weary.” Powell, J.: “I desire no
ereater liberty to be granted them than what, in justice, the
Court ought to grant; that is, to hear them in defence of
their clients.”
As the speeches for the defendants proceeded, aud were
producing a great effect upon all who heard them, the Solicitor
General made a very irregular remark, accompanied by a
fictitious yawn— “ We shall be here till midnight.” The
Chief Justice, instead of reprimanding him, chimed in with
his impertinence, saying, “ They have no mind to have an end
of the cause, for they have kept it up three hours longer than
they need to have done.” Serjeant Pemberton: ‘“ My Lord,
this case does require a great deal of patience.” Wright, C. J. :
** It does so, brother, and the Court has had a great deal of
patience; but we must not sit here only to hear speeches.”
In trying to put down another counsel, who was making way
with the jury, he observed, “ Ifyou say anything more, pray
let me advise you one thing—don’t say the same thing over
and over again; for, after so much time spent, it is irksome
to all company, as well as to me.”
When it came to the reply of Williams, the renegade
Solicitor General, who in his day had been “a Whig and
something more,” he laid down doctrines which called forth
107
CHAP,
XXIT,
A.D, 1688.
Contest be-
tween
Chief Jus-
tice Wright
and Jus-
tice Powell,
Wright’s
contest
with Pem-
berton.
108
CHAP.
XXII.
a.nd. 1688.
Doctrines
of a rene-
gade Whig.
REIGN OF JAMES II.
the reprobation of Judge Powell, and even shocked the Chief
Justice himself, for he denied that any petition could law-
fully be presented to the King except by the Lords and
Commons in parliament assembled. Powell, J.: “ This is
strange doctrine. Shall not the subject have liberty to peti-
tion the King but in parliament? If that be law, the subject
is in a miserable case.” Wright, C. J.: © Brother, let him
go on; we will hear him out, though I approve not of his
position.” The unabashed Williams continued, “ The Lords
may address the King in parliament, and the Commons may
do it; but therefore that the Bishops may do it out of-
parliament, does not follow. Il tell you what they should
have done: if they were commanded to do anything against
their consciences, they should have acquiesced till the meeting
of the parliament.” (Here, says the Reporter, the people in
court hissed.) Attorney General: ‘This is very fine in-
deed! I hope the Court and the jury will take notice of
this carriage.” Wright, C. J.: “Mr. Solicitor, I am of opi-
nion that the Bishops might petition the King; but this is
not the right way. If they may petition, yet they ought to
have done it after another manner; for if they may, in this
reflective way, petition the King, I am sure it will make the
government very precarious.” Powell, J.: “ My. Solicitor,
it would have been too late to stay for a parliament, for the
act they conceived to be illegal was to be done forthwith ;
and if they had petitioned and not shown the reason why
they could not obey, it would have been looked upon as a
piece of sullenness, and for that they would have been as
much blamed on the other side.”
The Chief Justice, to put on a semblance of impartiality,
attempted to stop Sir Bartholomew Shower, who wished to
follow in support of the prosecution, and, being a very absurd
man, was likely to do more harm than good. Wright, C. J.:
*‘T hope we shall have done by and by.” Sir B. S.: “If
your Lordship don’t think fit, I can sit down.” Wright, C. J.:
“No! no! Go on, Sir Bartholomew — you'll say I have
spoiled a good speech.” Sir B. S.: “I have no good speech
to make, my Lord; I have but a very few words to say.”
Wright, C. J.: ‘ Well, go on, sir; go on.”
LIFE OF CHIEF JUSTICE WRIGHT.
In summing up to the jury, the Chief Justice said :—
“ This is a case of very great concern to the King and the
Government on the one side, and to my Lords the Bishops on the
other. It is an information against his Grace my Lord of Canter-
bury and the other six Noble Lords, for composing and publishing
a seditious libel. At first we were all of opinion that there was
no sufficient evidence of publication in the county of Middlesex,
and I was going to have directed you to find my Lords the Bishops
not guilty ; but it happened that, being interrupted in my direc-
tion by an honest, worthy, learned gentleman, the King’s counsel
took the advantage, and, informing the Court that they had further
evidence, we waited till the Lord President came, who told us
how the Petition was presented by the Right Reverend defend-
ants_to the King at Whitehall. ‘Then .came their learned
counsel and told us that my Lords the Bishops are guardians of
the Church, and great peers of the realm, and were bound in con-
science to act as they did. Various precedents have been vouched
to show that the kings of England have not the power assumed
by his present Majesty in issuing the Declaration and ordering it
to be read; but concessions which kings sometimes make, for the
good of the people, must not be made law ; for this is reserved in
the King’s breast to do what he pleases in it at any time. The
truth of it is, the dispensing power is out of the case, and I wiil
not take upon me to give any opinion upon it now; for it is not
before me, The only question for you is a question of fact,
whether you are satisfied that this Petition was presented to the
King at Whitehall. If you disbelieve the Lord President, you
will at once acquit the defendants. Ifyou give credit to his tes-
timony, the next consideration is, whether the Petition be a
seditious libel, and this is a question of law on which I must direct
you. Now, gentlemen, anything that shall disturb the govern-
ment, or make mischief and a stir among the people, is certainly
within the case ‘ De Libellis Famosis;’ and I must, in short,
give you my opinion, I do take it to be alibel. But this being a
point of law, if my brothers have anything to say to it, I suppose
they will deliver their opinions.”
Mr. Justice Holloway, though a devoted friend of the
Government, had in his breast some feeling of shame, and
observed, —
. “Tf you are satisfied there was an ill intention of sedition or
the like, you should find my Lords the Bishops guilty; but if
they only delivered a petition to save themselves harmless, and to
109
CHAP.
XXII,
A.D. 1688,
The Chief
Justice
sums up to
the jury.
Opinions of
the
Puisnies.
Holloway.
OD ee Ft a. Bg 1 er
110
CHAP:
XXII.
A.p. 1688.
Powell.
Allybone.
REIGN OF JAMES II.
free themselves from blame, by showing the reason of their dis-
obedience to the King’s command, which they apprehend to be
a grievance to them, I cannot think it a libel.” Wright, C.J.:
* Look you, by the way, brother, I did not ask you to sum up the
evidence (for that is not usual), but only to deliver your opinion
whether it be a libel or no.” Powell, J.: “ Truly, I cannot see,
for my part, anything of sedition or any other crime fixed upon
these reverend fathers. For, gentlemen, to make it a libel, it
must be false, it must be malicious, and it must tend to sedition.
As to the falsehood, I see nothing that is offered by the King’s
counsel, nor anything as to the malice; it was presented with all
the humility and decency becoming subjects when they approach
their prince. In the Petition they say, because they conceive the
thing that was commanded them to be against the law of the land,
therefore they do desire his Majesty that he would be pleased to
forbear to insist upon it. If there be no such dispensing power,
there can be no libel in the Petition which represented the Decla-
ration founded on sucha pretended power to be illegal. Now,
gentlemen, this is a dispensation with a witness; it amounts to an
abrogation and utter repeal of all the laws; for I can see no dif-
ference, nor know of any in law, between the King’s power to dis-
pense with laws ecclesiastical, and his power to dispense with any
other laws whatsoever. If this be once allowed of, there will need
no parliament ; all the legislature will be in the King — which is a
thing worth considering — and I leave the issue to God and your
own consciences.”
Allybone, however, on whom James mainly relied, foolishly
forgetting the scandal which would necessarily arise from the
Protestant prelates being condemned by a Popish judge for
trying to save their Church from Popery, came up to the
mark, and, in the sentiments he uttered, must have equalled
all the expectations entertained of him by his master : —
“ In-the first place,” said he, “no man can take upon him to
write against the actual exercise of the Government, unless he
have leave from the Government. If he does, he makes a libel,
be what he writes true or false; if we once come to impeach the
Government by way of argument, it is argument that makes go-
vernment or no government. So I lay down, that the Govern-
ment ought not to be impeached by argument, nor the exercise of
the Government shaken by argument, Am I to be allowed to dis-
credit the King’s ministers because I can manage a proposition, in
'
LIFE OF CHIEF JUSTICE WRIGHT.
itself doubtful, with a better pen than another man? This I say
is a libel. My next position is, that no private man can take upon
him to write concerning the Government at all, for what has any
private man to do with the Government? It is the business of
the Government to manage matters relating to the Government ;
it is the business of subjects to mind only their private affairs.
If the Government does come to shake my particular interest, the
law is open for me, and I may redress myself; but when I intrude
myself into matters which do not concern my particular interest,
I am a libeller. And, truly, the attack is the worse if under a
specious pretence ; for, by that rule, every man that can put ona
good vizard may be as mischievous as he will, so that whether it
be in the form of a supplication, or an address, or a petition, let
us call it by its true denomination, it is a libel.” He then ex-
amined the precedents which had been cited, displaying the
grossest ignorance of the history as well as constitution of the
country; and, after he had been sadly exposed by Mr. Justice
Powell, he thus concluded: “TI will not further debate the prero-
gatives of the Crown, or the privileges of the subject; but I am
clearly of opinion that these venerable Bishops did meddle with
that which did not belong to them; they took upon themselves to
contradict the actual exercise of the Government, which I think
no particular persons may do.”
The Chief Justice, without expressing any dissent, merely
said, “Gentlemen of the jury, have you a mind to drink
before you go?” So wine was sent for, and they had a glass
apiece; after which they were marched off in custody of a
bailiff, who was sworn not to let them have meat or drink,
fire or candle, until they were agreed upon their verdict.
All that night were they shut up, Mr. Arnold, the King’s
brewer, standing out for a conviction till six next morning,
when, being dreadfully exhausted, he was thus addressed by
a brother juryman: “ Look at me; I am the largest and the
strongest of the twelve, and, before I find such a petition as
this a libel, here I will stay till I am no bigger than a tobacco-
pipe.”
The Court sat again at ten, when the verdict of Nor
GUILTY was pronounced, and a shout of joy was raised which
was soon reverberated from the remotest parts of the king-
dom, One gentleman, a barrister of Gray’s Inn, was imme-
diately taken into custody in court, by order of the Lord
111
CHAP,
XXII.
A.D. 1688,
Delibera-
tion of the
jury.
112
CHAP.
XXII.
A.D. 1688,
Jan. 9.
Wright in
danger of
being dis-
missed.
Reason
why he was
not dis-
missed.
Nov. 5.
Dee. 11.
REIGN OF JAMES II.
Chief Justice, who, with an extraordinary command of tem:
per and countenance, said to him in a calm voice, “I am as
glad as you can be that my Lords the Bishops are acquitted,
but your manner of rejoicing here in court is indecent ; you
might rejoice in your chamber or elsewhere, and not here.
Have you any thing more to say to my Lords the Bishops,
Mr, Attorney?” A. G.: “No, my Lord.” Wright, C.J.:
“Then they may withdraw,” — and they walked off, sur-
rounded by countless thousands, who eagerly knelt down to
receive their blessing.*
Justice Holloway was forthwith cashiered, as well as Justice
Powell; and there were serious intentions that Chief Justice
Wright should share their fate, as the King ascribed the
unhappy result of the trial to his pusillanimity,—contrast-
ing him with Jeffreys, who never had been known to miss
his quarry. This esteemed functionary held the still
more important office of Lord High Chancellor, and, com-
pared with any other competitor, Wright, notwithstanding
his occasional slight lapses into conscientiousness, appeared
superior in servility to all who could be substituted for him.t
Allybone was declared to be “the man to go through thick
and thin;” but, unfortunately, he had made himself quite
ridiculous in all men’s eyes by the palpable blunders he had
recklessly fallen into during the late trial ; and he felt so keenly
the disgrace he had brought on himself and his religion, that
he took to his bed and died a few weeks afterwards.
Thus, when William of Orange landed at Torbay, Wright
still filled the office of Chief Justice of the King’s Bench.
He continued to sit daily in court till the flight of King
James,—when an interregnum ensued, during which all judicial
business was suspended, although the public tranquillity was
* 1 St. Tr. 183—523.
+ It was supposed that he was jealous of Williams, the Solicitor General, who
had been promised by James the highest offices of the law if he could convict
the Bishops. This may account for a sarcasm he levelled at his rival during
the trial. Williams, having accounted for a particular vote of the House of
Commons in the reign of James II., when he himself was a member and sus-
pected of bribery, said “ there was a lump of money in the case.” Wright, in
referring to this, observed, ‘¢ Mr. Solicitor tells you the reason, ‘ there was a lump
of money in the case;’ but I wonder, indeed, to hear it come from him.”
Williams, understanding the insinuation, exclaimed, ‘‘ My Lord, I assure you
I never gaye my yote for money in my life,”
LIFE OF CHIEF JUSTICE WRIGHT.
preserved, and the settlement of the nation was conducted by
& provisional government.* After Jeffreys had tried to
make his escape, disguised as a sailor, and was nearly torn
to pieces by the mob, Wright concealed himself in the house
of a friend, and, being less formidable and less obnoxious (for
he was called the “jackall to the lion”), he remained some
time unmolested ; but upon information, probably ill-founded,
that he was conspiring with papists who wished to bring back
the King, a warrant was granted against him by the Privy
Council, on the vague charge of “ endeavouring to subvert the
government.” Under this he was apprehended, and carried
to the Tower of London; but, after he had been examined
there by a committee of the House of Commons, it was thought
that this custody was too honourable for him, and he was
ordered to be transferred to Newgate. Here, from the per-
turbation of mind which he suffered, he was seized with a fever,
and he died miserably a few days after, being deafened by
the cheers which were uttered when the Prince and Princess
of Orange were declared King and Queen of England.t
His pecuniary embarrassments had continued even after he
became a Judge, and, still living extravagantly, his means
were insufficient to supply him with common comforts in his
last hours, or with a decent burial. His end holds out an
awful lesson against early licentiousness and political profli-
cacy. He was almost constantly fighting against privation
and misery, and during the short time that he seemed in the
enjoyment of splendour he was despised by all good men, and
he must have been odious to himself. When he died, his
body was thrown into a pit with common malefactors; his
sufferings, when related, excited no compassion ; and his name
was execrated as long as it was recollected.
The Convention Parliament, not appeased by his ignomi-
nous death, still wished to set a brand upon his memory. At
first there was an intention of attainting him, as well as
Jeffreys, who, about the same time, had come to a similar
* Westminster Hall was closed during the whole of Hilary Term, 1689, and
an act was afterwards passed for reviving actions and continuing process
(1 W. & M. ¢. 4.).
+ Some accounts say that he was dangerously ill of a fever at the time of his
removal from the Tower,
VOL. II. I
113
CHAP.
XXII.
A.D. 1688.
Fate of
Wright at
the Revo-
lution.
He dies in
Newgate.
Feb. 1689.
He is
buried with
felons.
Proceed-
ings against
him in par-
liament
after his
death,
114
CHAP.
XXII.
A.D. 1688,
THE REVOLUTION.
end. In the debate on the Indemnity Act, Sir Henry Capel
said, —
« Will you not except the bloody Judges, and those who were
of opinion for the dispensing power?” Mr. Boscawen: “ Al-
though the capital offenders are dead, I would have them attainted.
Begin with Chancellor Jeffreys, reduce his estate to the same con-
dition as when he began to offend, and let his posterity be made
incapable to sit in the Lords’ House.” Mr. Hawles: “ If you ex-
cept a man that is dead, you will find the Chancellor very little
more guilty than those who supported the dispensing power. The
dispensing power was the last grievance, and a bloody sacrifice to
the Prince’s pleasure.”
It was resolved first to specify the offences which should
exclude from the benefit of the Act of Indemnity, and these
were agreed upon: “1. Asserting, advising, and promoting
the dispensing power and suspending of laws without con-
sent of parliament. 2. The prosecution of the Seven Bishops.
3. Sitting in the Court of High Commission.” — Powell,
Atkyns, Holloway, and other Judges who had been dis-
missed, were examined at the bar, and the part that Wright
had taken in the illegal proceedings of the last reign was
clearly established. Sir Robert Sawyer, then Attorney
General, now a member of the House, likewise made some
terrible disclosures (which led to his own expulsion) relating
to the manner in which the King, the Chancellor, and the
Chief Justice had combined to obtain the concurrence of
the other Judges in illegal decisions. Finally, Sir Thomas
Clarges alone stood up for Wright, saying, “If any fact he
hath done amounts to felony or treason, make his estate for-
feitable, and I am for it; but where there is no offence in
law, I would not have him excepted; and as he has gone to
another world, and left no estate behind him, let him rest in
peace.” But Sir Thomas Littleton closed the debate by
observing, in a very fierce tone, “We may not be able to
touch his person or his property, but it would be an ill thing
for such a man to stand in our chronicles with no mark upon
him.” So it was resolved “ that Sir Robert Wright be
excepted.” *
* 5 Parl. Hist. 260. 263. 278. $08. 312. 318. 324. 334. 339.; stat. 2 W. & M.
sess, 1, c. 10. ; Granger, 311. ; Macaulay, ii, 275.
LIFE OF CHIEF JUSTICE WRIGHT.
And surely we have reason to admire the good sense and
moderation which characterised the proceedings of the Con-
vention Parliament in this as well as in almost every other
deliberation. We are shocked by reading, in the criminal
annals of Scotland, of a skeleton being set up at the bar of a
court of justice to receive sentence,—and the insult offered,
on the restoration of Charles II., to the remains of Cromwell
and Blake, was disgraceful to the English nation; but the
simple expression of censure by the legislature of the country
upon this deceased delinquent harmonises with our best
feelings, and, without inflicting hardship on any individual,
was calculated to make a salutary impression upon future
judges. It is lucky for the memory of Wright that he had
contemporaries such as Jeflreys and Scroggs, who considerably
exceeded him in their atrocities. Had he run the same
career in an age not more than ordinarily wicked, his name
might have passed into a by-word, denoting all that is odious
and detestable in a judge; whereas his misdeeds have long
been little known, except to lawyers and antiquaries.
It isa painful duty for me to draw them from their dread
abode; but let me hope that, by exposing them in their
deformity, I may be of some service to the public. Ever
since the reaction which followed the passing of the Reform
Bill, there has been a strong tendency to mitigate the errors
and to lament the fate of James II. This has shown itself
most alarmingly among the rising generation, and there
seems reason to dread that we may soon be under legislators
and ministers who, believing in the divine right of kings,
will not only applaud, but act upon, the principles of arbi-
trary government.* Some good may arise from showing in
detail the practical results of such principles in the due ad-
ministration of justice —the chief object, it has been said,
for which man renounces his natural rights, and submits to
the restraints of magisterial rule.
I rejoice to think that I am now parting with the last of
the monsters who, disguised as judges, shed innocent blood,
* When, in the debating societies at Eton, Oxford, and Cambridge, the ques-
tion has been put to the vote “ whether the Revolution of 1688 was justifiable,”
it has generally been carried by an immense majority in the negative. ,
roQ
115
CHAP.
XXII.
Utility of
exhibiting
the abuses
of govern-
ment
which led
to the Re-
volution,
116
CHAP.
XXII.
A.D. 1688.
CHARACTER OF STUART CHIEF JUSTICES.
and conspired with tyrants to overturn all the free institutions
which have distinguished and blessed our country. For the
purpose of showing the manner in which the laws had been
perverted to the oppression of the subject, I may conclude
with asking the reader to take a retrospective glance at the
two last Stuart reigns, and to observe that during a period of
only twenty-eight years there had been a series of not fewer
than eleven Chief Justices of the Court of King’s Bench,
most of whom had been selected for their supposed sub-
serviency, and several of whom were cashiered because, not-
withstanding their eager desire to comply with the wishes of
the Government, judgments had been required of them which
they could not give without infamy, but which were given
by their more infamous substitutes. The other judicial seats
had been equally prostituted, — insomuch that although, on
the establishment of the constitutional government under
William and Mary, there was no indisposition to continue
in office any of the old Judges who were decently competent
by acquirements and character, it was found necessary to
make a complete sweep of all actually officiating in the Court
of Chancery, in the Court of King’s Bench, in the Court of
Common Pleas, and in the Court of Exchequer. Even of
the Judges who had been dismissed as refractory, Sir Robert
Atkyns and Mr. Justice John Powell alone could with
propriety be reappointed. The others, condemned for inde-
pendence by James II., would have been shunned, from the
dread of contamination, by the pure and enlightened men
subsequently appointed to adorn the seat of justice, which
the least culpable of their predecessors, with unpardonable
although with faltering and imperfect profligacy, had dis-
graced.*
* The reader may like to see a list of the Judges immediately before and
after the Revolution ; —
James II. Witriam anp Mary.
Lord Chancellor. Lords Commissioners of the Great Seal.
Lord Jeffreys. Sir John Maynard.
Sir Anthony Keck.
Sir William Rawlinson,
Master of the Rolls, Master of the Rolls.
Sir John Trevor. Henry Powle, Esq.
JUDGES BEFORE AND AFTER THE REVOLUTION. 117
James II,
King’s Bench.
Sir Robert Wright.
Sir Thomas Powell.
Sir Robert Baldock.
Sir Thomas Stringer.
Common Pleas,
Sir Edward Herbert.
Sir Thomas Street.
Sir Thomas Jenner.
Sir Edward Lutwyche.
Exchequer.
Sir Robert Atkyns.
Sir Richard Heath.
Sir Charles Ingleby.
Sir John Rothram.
WittiaMm Anp Mary.
King’s Bench,
Sir John Holt.
Sir William Doiben.
Sir William Gregory.
Sir Giles Eyre.
CHAP.
XXII.
A.D. 1688,
Common Pieas.
Sir Henry Pollexfen,
Sir John Powell. *
Sir Thomas Rokeby.
Sir Peyton Ventris.
Exchequer.
Sir Robert Atkyns.*
Sir Nicholas Letchmere.
Sir Edward Neville.
Sir John Turton.
* Old Judges reappointed.
118
CHAP.
XXIII.
Services
and cha-
racter of
Sir John
Holt.
LIFE OF CHIEF JUSTICE HOLT.
CHAPTER XXIII.
LIFE OF LORD CHIEF JUSTICE HOLT, FROM HIS BIRTH TILL THE
COMMENCEMENT OF HIS CONTESTS WITH THE TWO HOUSES OF
PARLIAMENT.
THE unprincipled, ignorant, and incompetent Chief Justices
of the King’s Bench, who have been exciting alternately the
indignation and the disgust of the reader, were succeeded by
a man of unsullied honour, of profound learning, and of the
most enlightened understanding, who held the office for
twenty-two years, —during the whole of which long period
—often in circumstances of difficulty and embarrassment —
he gave an example of every excellence which can be found
in a perfect magistrate. To the happy choice of Sir JoHN
HO yt as president in the principal common law court, and te
his eminent judicial services, we may in no small degree
ascribe the stability of the constitutional system introduced
when hereditary right was disregarded, and the dynasty was
changed. During the reigns of William and of Anne,
factions were several times almost equally balanced, and
many of the enormities of the banished race were forgotten ;
but when men saw the impartiality and mildness with which
Chief Justice Holt conducted the trial of Lord Preston, who
was undoubtedly guilty of high treason, and the firmness
with which, in the discharge of his duty, he alternately defied
the power of either House of Parliament, they dreaded a
counter-revolution, by which he would have been removed
to make place for a Jeffreys, a Scroggs, or a Wright.
Of all the Judges in our annals, Holt has gained the
highest reputation, merely by the exercise of judicial functions.
He was not a statesman like Clarendon, he was nota phi-
losopher like Bacon, he was not an orator like Mansfield ; yet
he fills nearly as great a space in the eye of posterity; and
some enthusiastic lovers of jurisprudence regard him with
LIFE OF CHIEF JUSTICE HOLT.
higher veneration than any English Judge who preceded or
has followed him.
It would have been most interesting and instructive to
trace the formation of such a character, but, unfortunately,
little that is authentic is known of Holt till he appeared
in public life; and for his early career we are obliged to
resort to vague and improbable traditions.
He was of a respectable gentleman’s family, seated in the
county of Oxford.* His father tried, rather unsuccessfully,
to eke out the income arising from a small patrimonial estate,
by following the profession of the law, and rose to be a
bencher of Gray’s Inn. In 1677 he became a Serjeant, but
was known by mixing in factious intrigues rather than by
pleading causes in Westminster Hall. Of the party who
were first called “ Tories” he was one of the founders.
Taking the Court side with much zeal, he was rewarded with
knighthood, and became “ Sir Thomas.” Of course he was
an “ abhorrer,” inveighing against the “ Petitioners ” as little
better than traitors —in consequence of which he was taken
into custody by order of the House of Commons. His cele-
brated son had strongly taken the other side in politics — but
was no doubt shocked at this stretch of authority, and may
then have imbibed the dislike which he afterwards evinced of
the abuse of parliamentary privilege. The old gentleman
soon after died, and if he had been childless his name never
more would have been heard of.
But on the 30th of December, 1642, there had been born
to him at Thame, in Oxfordshire, a son, the subject of this
memoir, whom he lived to see rising into great eminence, and
of whom he was justly proud, although he deplored his political
degeneracy when he found him to be a Whig.
* T have taken the following account of Ch. J. Holt’s family, and the dates of
the different events in his early career, from a Life of him published in the year
1763, with the motto from his epitaph —
“ Libertatis, ac Legum Anglicarum
Assertor, Vindex, Custos,
Vigilis, Acer, et Intrepidus.”
This, as a biography, is exceedingly meagre, but it seems very accurate, and it
cites authorities, most of which I have investigated, but which I do not think it
worth while to parade. See likewise an able Life of Holt in Welsby’s “ Emi-
nent English Judges,” which has been of considerable service to me in pre-
paring this memoir,
14
119
CHAP.
XXIII.
His father,
A.D. 1642.
His birth.
120
CHAP.
XXIII.
At school,
A.pv. 1658.
His early
excesses,
He acts the
part ofa
wizard.
LIFE OF CHIEF JUSTICE HOLT.
All that we certainly know of young John’s boyish edu-
cation is that he was seven or eight years at the Free School
of the town of Abingdon, of which his father was Recorder.
It is said, that during the whole of this time he was remarkable
for being idle and mischievous —a statement which I entirely
disbelieve. ‘The boy is the father of the man,” and though
there may be a supervening habit of dissipation — which may
be conquered — the devoted application to business, the un-
wearied perseverance, and the uniform self-control which
characterised Sir John Holt, could only have been the result
of a submission to strict discipline in early youth.
In his sixteenth year he was transferred to the University
of Oxford, and entered a fellow commoner of Oriel College.
Here he was guilty of great irregularities, although they
have been probably much exaggerated, and might arise from
his having been previously kept: under excessive restraint.
His biographers represent him as copying Henry V. when
the associate of Falstaff, and not only indulging in all
sorts of licentious gratifications, but actually being in the
habit of taking purses on the highway. They even relate
that many years after, when he was going the circuit as
Chief Justice, he recognised a man, convicted capitally before
him, as one of his own accomplices in a robbery, and that,
having visited him in gaol and inquired after the rest of
the gang, he received this answer, “ Ah! my Lord, they are
ul hanged but myself and your Lordship! ”*
Another story of his juvenile extravagance is well told by
my friend Mr. Welsby : —
“ Having prolonged one of his unlicensed rambles round the
country, in company with some associates as reckless as himself,
until their purses were all utterly exhausted, it was determined,
* Hanging was not formerly considered so very disgraceful and melancholy an
occurrence as it isnow. When I first came to London I frequented the famous
Ciper Cexiar in Maiden Lane, where I met Professor Porson, Matthew Raine, the
Master of the Charter- House, and other men of celebrity. Among these was
George Nichol, the King’s bookseller, who, in answer to some reflections on the
society who sometimes came there, answered, with an air of conscious dignity,
“IT have known the Cider Cellar these forty years, and during that time only
two men have been hung out of it.” At this time the Cellar was repaired, and
Porson suggested for it the motto which it still bears —
“ Honos ERIT HUIC QUOQUE POMO,”
LIFE OF CHIEF JUSTICE HOLT.
after divers consultations how to proceed, that they should part
company, and try to make their way singly, each by the exercise
of his individual wits. Holt, pursuing his separate route, came to
the little inn of a straggling village, and, putting the best face
upon the matter, commended his horse to the attentions of the
ostler, and boldly bespoke the best supper and bed the house af-
forded. Strolling into the kitchen, he observed there the daughter
of the landlady, a girl of about thirteen years of age, shivering
with a fit of the ague; and on inquiring of her mother how long
she had been ill, he was told nearly a year, and this in spite of all
the assistance that could be had for her from physicians, at an ex-
pense by which the poor widow declared she had been half ruined.
Shaking his head with much gravity at the mention of the doctors,
he bade her be under no further concern, for she might assure her-
self her daughter should never have another fit: then scrawling a
few Greek characters upon a scrap of parchment, and rolling it
carefully up, he directed that it should be bound upon the girl’s
wrist, and remain there till she was well. By good luck, or pos-
sibly from the effect of imagination, the ague returned no more, at
least during a week for which Holt remained their guest. At the
end of that time, having demanded his bill with as much confidence
as if his pockets were lined with jacobuses, the delighted ‘hostess,
instead of asking for payment, bewailed her inability to pay him
as she ought for the wonderful cure he had achieved, and her ill-
fortune in not having lighted on him ten months sooner, which
would have saved her an outlay of some forty pounds. Her guest
condescended, after much entreaty, to set off against his week’s
entertainment the valuable service he had rendered, and wended
merrily on his way. The sequel of the story goes on to relate,
that when presiding, some forty years afterwards, at the assizes of
the same county, a wretched decrepid old woman was indicted
before him for witchcraft, and charged with being in possession of
a spell which gave her power to spread diseases among the cattle,
or cure those that were diseased. ‘The Chief Justice desired that
this formidable implement of sorcery might be handed up to him ;
and there, enveloped in many folds of dirty linen, he found the
identical piece of parchment with which he had himself played the
wizard so many years before. The mystery was forthwith ex-
pounded to the jury; it agreed with the story previously told by
the prisoner ; the poor creature was instantly acquitted, and her
guest’s long-standing debt amply discharged.” *
* Lives of Eminent English Judges, p. 91.
121
CHAP.
b.€).01 5)
122
CHAP.
XXIII.
Nov. 19.
1652.
He studies
law at
Gray’s Inn.
A.D. 1660.
‘LIFE OF CHIEF JUSTICE HOLT.
He had been early destined to the profession of the law,
having been entered on the books of Gray’s Inn when he
was only ten years old. His father was then treasurer of
that society, and entitled to admit a son without a fee.
Before he had completed his first year’s residence at Oxford,
such were his excesses, and such were the complaints which
they called forth, that Sir Thomas thought the only chance
of saving him from utter ruin was a change of scene, of
company, and of pursuits. Accordingly he was brought to
London, he was put under the care of a sober attorney, and
he was required to keep his terms with a view to his being
called to the bar. ‘The experiment had the most brilliant
success. His reformation was at once complete; and, without
taking any vow, like Sir Matthew Hale, against stage plays
and drinking, or renouncing society to avoid temptation, he
applied ardently to the study of the law, and his moral
conduct was altogether irreproachable.
Unfortunately we have no particular account of the
manner in which he rendered himself so consummate a jurist.
“ Moots” and “Readings” at the Inns of Court were going
out of fashion; and the ponderous common-place book, by
which every student was expected to make out for himself a
Corpus Juris Anglicani, was, since the publication of ROLLE
and other compilations, thought rather a waste of labour.
I suspect that, after acquiring a knowledge of practice from
his attorney-tutor, young Holt improved himself chiefly by the
diligent perusal of well-selected law books, and by a frequent
attendance in the courts at Westminster when important
cases were to be argued. By an intuitive faculty not to be
found in your mere black-letter lawyer, he could distinguish
genuine law, applicable to real business, from antiquated
rubbish, of no service but to show a familiarity with the
Yrar-Booxs. He made himself master of all that is
useful in our municipal code, and, from his reasoning in
Coggs Vv. Barnard and in other cases, it is evident that he
must have thoroughly imbued his mind with the principles
of the Roman civil law. If he once took delight in classical
studies, he now renounced them; and he never wandered into
philosophy, or even cared much about the polite literature of
" LIFE OF CHIEF JUSTICE HOLT.
his own country. But he mixed occasionally in general
society, and picked up much from conversation; so that he
was well acquainted with the actual business of life, and had
a keen insight into character. His mother-wit was equal to
his clergy.
Soon after he came of age he was called to the bar; a
wonderful precocity in those days, when a training of seven
or eight years, after taking a degree at a university, was
generally considered necessary before putting on the long
robe. His juvenile appearance seems to have been adverse
to his success, as for some years he was still dependent on
his father’s bounty for his subsistence. He sought for prac-
tice in the Court of King’s Bench, and rode the Oxford
Circuit, but long remained without clients. Being advised
to try his luck in the Court of Chancery, he expressed an un-
becoming contempt for our equitable system, which certainly
was then in a very crude state, and he professed a determined
resolution to make his fortune by the common law.
He still read diligently, and took notes of all the remark-
able cases which he heard argued. When he was at last
found out, business poured in upon him very rapidly. He
was noted for doing it not only with learning always suff-
cient, but with remarkable good sense and handiness; so
that he won verdicts in doubtful cases, and was noted for
having “the ear of the court.” Yet he would not stoop, for
victory, to any unbecoming art, and always maintained a
character for straightforwardness and independence. His
name frequently appears as counsel in routine cases in the
King’s Bench Reports about the middle of the reign of
Charles IT., and he was soon to gain distinction in political
prosecutions which interested the whole nation.
He always showed in domestic life much reverence, as
well as affection, for his father; but on public affairs he
thought for himself, and he decidedly preferred the “ country
party.” He had regarded with horror the iniquities of the
infamous CABAL, and he associated himself with those who
were struggling for the principles of civil and religious
liberty. He was tainted with the rage against Popery, from
which no patriot was then free; but, although a sincere
123
CHAP.
XXIII.
Feb. 27.
1663-4,
He is
called to
the bar.
His profes-
sional pro-
gress,
He isa
Whig.
124 LIFE OF CHIEF JUSTICE HOLT.
CHAP. member of the Church of England, he was for extending a
XXHI- liberal toleration to all orthodox Dissenters. With these
principles, and his professional eminence, he was sure to be
of service to his country in the struggles that were then
going forward between the contending parties in parliament
and in the courts of law.
ei 690) The first cause célébre in which he was engaged was the
Heis coun- impeachment of the Earl of Danby. The King, dreading
| for th : , : Sant 1 any
a ope the disclosures which might be made in investigating the
Joel charges against his prime minister, had granted him a
t ° ° °
Apia pardon, to which with his own royal hand he had affixed
Sade F the great seal; but the Commons, allowing that it was
charge
with being Within the power of the prerogative to remit the sentence
concerned after it had been pronounced, denied that a pardon could be
in the ; .
Popish pleaded in bar of an impeachment. The Lords received the
Ae plea, and assigned Mr. Holt as counsel for the defendant to
argue its validity; the understood rule then being (as had
been settled in the case of the Earl of Strafford) that upon
an impeachment the defendant might have the assistance of
counsel on any question of law, although not to argue the
merits of the accusation. The Commons were now so un-
reasonable as to pass a resolution ‘‘ That no commoner what-
soever shall presume to maintain the validity of the pardon
pleaded by the Earl of Danby, without the consent of this
House first had; and that the persons so doing shall be
accounted betrayers of the liberties of the Commons of Eng-
land.”* Holt remained undismayed, and would manfully
have done his duty at the peril of being seized by the Ser-
jeant-at-arms and lodged in “ Little Ease.” But the King
put an end for the present to the controversy between the
two Houses by an abrupt dissolution of that Parliament
which had sat seventeen years, which on its meeting was ready
to make him an absolute sovereign, but which now seemed
disposed to wrest the sceptre from his hand. +
Holt was afterwards assigned by the Lords to be counsel
for the Earl of Powis and Lord Bellasis, two of the five
Popish peers capitally impeached on the charge of being
concerned in the Popish Plot, which was converted into high
* 11 St. Tr. 807. t 5 Parl. Hist, 1074.
LIFE OF CHIEF JUSTICE HOLT.
treason, the murder of the King being one of its supposed
objects.“ However, the unhappy Lord Stafford was alone
brought to trial, and his murder caused such a reaction in the
public mind that the other intended victims were released
when they seemed inevitably doomed to share his fate.
By one of the professional accidents to which all men at
the bar are liable, from not being at liberty to refuse a retainer,
Holt was next associated with Sir George Jeffreys in prose-
cuting a bookseller for publishing a pamphlet alleged to be
libellous and seditious, because it attempted to discredit the
testimony of the witnesses against those who had died as
authors of the Popish Plot. There might have been a design
to influence the jury by presenting before them as counsel,
in support of a tale which was becoming unpopular, one who
was known to have opposed it when few had had courage to
express a doubt of its most improbable fictions.
Mr. Holt had merely, as junior, to open the pleadings, and
was followed by his leader, who delivered a glowing panegyric
on Lord Chief Justice Scroggs, and denounced all who did
not believe in the Popish Plot as traitors, regretting that the
present defendant was only indicted for a misdemeanor, so
that his punishment could not be carried beyond fine, im-
prisonment, whipping, and pillory. This harangue caused
such consternation that the defendant submitted to a verdict
of GuILTY, although, on the part of the prosecution, they
seem not to have been prepared to prove that he had published
the obnoxious pamphlet. f
In the next case in which we find Holt engaged, his duties
as an advocate and his political propensities fully coincided :
he was counsel for Lord Russell. But, in those days, a
barrister had little opportunity for a display of talent or zeal
in the defence of persons accused of high treason; for his
mouth was closed, and, indeed, his capacity of advocate was
not acknowledged by the Court, except when some question
of law incidentally arose during the trial. During the im-
panneling of the jury, exception was made to one of them,
on behalf of the prisoner, for not having a freehold; and the
* 7 St. Tr. 1242. 1260. t Rex v. Smith, 7 St. Tr. 931.
125
CHAP.
XXIII.
A.D. 1680.
He acts as
junior to
Jeffreys in
a prosecu-
tion for
libel,
A.D. 1683.
He is
counsel for
Lord Rus-
sell.
126
CHAP.
XXIII.
As counsel
at the bar
he “goes
the whole
hog.”
LIFE OF. CHIEF JUSTICE HOLT.
question was raised “ whether it was required, either by the
common law or statute, that, on trials for treason, jurymen
should be freeholders?” This was very learnedly argued by
Holt; but all his authorities and reasonings were overruled.*
During the remainder of the trial he had to look on as a
mere spectator, — while the illustrious prisoner, assisted only
by an heroic woman, in vain struggled against the chicanery
of the counsel for the Crown, and the browbeating of corrupt
Judges. Holt’s own upright and merciful demeanour in the
seat of justice may, in part, be ascribed to the horror which
the closing scene of this sad tragedy was calculated to inspire.
In civil cases, eager for victory, he seems not to have been
very scrupulous as to the arguments he urged, but — according
to the American phrase, now naturalised in Westminster
Hall, —to have “gone the whole hog.” Thus, in the case of
the Kast India Company v. Sandys, in which the question
was, whether the King’s grant to the plaintiffs of an exclusive
right to trade to all countries east of the Cape of Good Hope
gave them a right of action against all who infringed their
monopoly, he boldly argued that, although such a grant
touching the Christian countries of Europe might be bad if
not confirnied by Parliament, the King’s subjects had no right
to hold intercourse of any kind with Infidels without the’
express authority of the Crown; citing Lord Coke’s doctrine
that “ Infidels are perpetual enemies,” and the Book of Judges,
which shows “how the children of Israel were perverted
from the true religion by converse with the heathen nations
round about, from whom they took wives and concubines.” ¢
On this occasion he laid himself open to the severe sarcasm
of his opponent, Sir George Treby, who observed, “I did a
little wonder to hear merchandising in the East Indies ob-
jected against as an unlawful trade, and did not expect so
much divinity in the argument: I must take leave to say
that this notion of Christians not to have commerce with
infidels is a conceit absurd, monkish, fantastical, and fanatical.”
Jeffreys, however, was the judge, and he fully adopted the
* The refusal of a challenge to the jurors for want of freehold was made one
of the principal grounds for reversing the attainder. 9 St, Tr. 696.
+ 10 St. Tr. 519.; Lives of the Chancellors, v. 585.
LIFE OF CHIEF JUSTICE HOLT.
arguinent that the King’s licence alone can legalise a trading
with infidels ; adding sentiments which will make true pro-
tectionists venerate his memory: “ This island supported its
inhabitants in many ages without any foreign trade at all,
having in it all things necessary for the life of man — Terra
suis contenta bonis, non indiga mercis. And truly I think,
if at this day East India commodities were absolutely pro-
hibited, though some few traders might be mulcted of enor-
mous gains, it would be for the general benefit of the inha-
bitants of this realm.” So Holt had the triumph, and, I
fear, was not ashamed of it; although, when he was himself on
the bench, he would sooner have died than have pronounced
such a judgment.* His most creditable appearance at the
bar was in the case of the Earl of Macclesfield vy. Starkey,
in which the question arose, “ whether an action for
defamation could be maintained against a grand juryman
for joining in a presentment at the assizes which charged the
plaintiff and other gentlemen of the county of Chester as
promoters of schism, disaffection, and infidelity, because they
had signed an address to Whig members of parliament, com-
mending the principles of that party?” Holt was for the
defendant, and, in a most masterly manner, entered into the
distinction between publications that are criminatory and
malicious, and publications that are criminatory without
being malicious; showing that no persons are to be sued for
acting in the discharge of their duty with a view to the public
good, although the character of individuals might thereby be
prejudiced ; and laying down with wonderful force the grand
principle on which the legislature in our time passed the act
declaring that the two Houses of Parliament have the right
to publish whatever they deem necessary for the information
of the community without the danger of an action or indict-
ment against their officers. He succeeded; less, probably,
from the force of his argument, than from the fact that the
defendant was a violent Tory, and that the presentment was
highly agreeable to the Government.
Although ever consistent and zealous in his Whig prin-
ciples, Holt never associated himself with Shaftesbury, nor
* 10 St. Tr. 371. + Ib. 1351.
His argu-
ment in
Earl of
Maccles-
Jield v.
Starkey.
128
CHAP.
mee ETS
Attempt to
seduce him
by James
ine
Feb. 1686,
He is ap-
pointed
Recorder
of London,
made
King’s Ser-
jeant, and
knighted.
April 22.
LIFE OF CHIEF JUSTICE HOLT.
entered into the plots which exposed the leaders of the party
to the penalties of treason; and, when James II. came to the
throne, so moderate did he appear that an attempt was made
to gain him over to the Court, and a hope was entertained
that he might prove a useful tool in carrying on the scheme
which had been deliberately concerted for the subversion of
public liberty.
By the famous Quo WaRrRANTO, the charters of London
had been adjudged to be forfeited, and the appointment of
all the city officers was in the Crown. Sir Thomas Jenner
had accordingly been made Recorder by royal mandate,
without the intervention of the aldermen or the common
council; and when he was promoted to be a Baron of the
Exchequer, the vacant Recordership was offered to Mr. Holt.
Although not unaware of the motive by which the Govern-
ment was actuated, he thought he was not at liberty to refuse
a judicial office, and he accepted it, fully determined, in a
resolute manner, to perform its duties. He actually seemed,
for a short space, to be likely to become an associate of
Jeffreys, for, having taken the degree of the coif*, he was
immediately promoted to the high dignity of King’s Serjeant,
and had the honour of knighthood conferred upon him. But
he was soon called upon either to maintain his integrity and
to sacrifice office, or really to be degraded to the level of the
corrupt Judges who were ready to act according to the orders
they received from the ministers of the Crown.
James IT. hoped to subvert the religion of the country
by the exercise of his dispensing power, and its liberties by
keeping up a standing army in time of peace, without the
authority of parliament. All his Judges in Westminster
Hall, with the exception of Baron Street, had decided that,
in spite of acts of parliament requiring the oath of supre-
macy and the declaration against transubstantiation, he might
appoint a Roman Catholic to any office, civil, military, or ec-
clesiastical ; and all these perverters of the laws, except Chief
* On this occasion he gave rings with this motto—-“ Deus, Rex, Lex,”
which is noticed by Bishop Kennet as honourably distinguished from that of the
last preceding batch of serjeants, —“ A Deo Rex, a Rege Lex,” setting the
King above the Law.
LIFE OF CHIEF JUSTICE HOLT.
Justice Herbert and Justice Wythens, had given an opinion
that an old statute of Edward III. against desertion in time
of war empowered the King to keep up, and to rule by
martial law, an army raised by his own authority, at a time
when he had no foreign enemy and there was profound tran-
quillity at home. Both these questions incidentally arose
before Holt, sitting as Recorder at the Old Bailey sessions ;
and he firmly declared, that although the dispensing power
claimed by the Crown had been applied, from ancient times,
to statutes imposing pecuniary penalties given to the King, it
could not extend to a statute imposing a test to protect the
religion of the nation; and that although the King by his pre-
rogative might enlist soldiers, even in time of peace, still, if
there was no statute passed to punish mutiny, and to subject
them to a particular discipline, they could not be punished for
any military offence, and they were only amenable to the
same laws as the rest of the King’s subjects. The Recorder-
ship of London being, under the existing régime, held during
the pleasure of the Crown, Holt was immediately removed
from it, and was replaced by an obscure Serjeant-at-law, of
the name of Tate, who had the recommendation of being ready
to hold that the King of England was as absolute as the
Grand Signor.
By arefinement of malice he was allowed to continue King’s
Serjeant, for in the state prosecutions which were impending
he was thus effectually prevented from acting as counsel for
the accused, while it was unnecessary to employ him for the
Crown. Accordingly, he was not trusted with a brief to
assist in trying to convict the Seven Bishops ; and they, being
deprived of his advocacy, which they would have been eager
to secure, were obliged to employ several counsel who were
suspected to be under the influence of the Government,—and
might have been betrayed, if Mr. Somers, till then unknown,
had not been added to their number.*
* The Diary of the second Lord Clarendon shows that Holt, as King’s Ser-
jeant, was obliged to refuse taking a brief for the plaintiff in a suit against the
Queen Dowager Catherine of Braganza, although he was not employed for her.
The noble diarist, not aware of professional etiquettes, seems to have been very
angry; and declares that the only honest lawyers he ever met with were two
“thurrough Tories ” like himself, Roger North and Sir Charles Porter.
VOL. II, K
129
CHAP.
XXIII.
Jan. 1687.
He refuses
to abet the
arbitrary
measures
of the
King, and
is dismissed
from the
office of
Recorder.
He is con-
tinued in
his office of
King’s
Serjeant.
130
CHAP.
XXIII.
A.D. 1688,
Landing of
the Prince
of Orange.
Dee. 11.
He acts as
assessor to
the Peers.
Jan. 22.
1689.
He is
elected a
member of
the Con-
vention
Parlia-
ment,
LIFE OF CHIEF JUSTICE HOLT.
But Holt was summoned, in his capacity of King’s Ser-
jeant, to attend the Council assembled by the King, when it
was too late, to investigate the circumstances of the birth
of the Prince of Wales, and to expose the calumnious story
that a supposititious child had been introduced into the Queen’s
bed-chamber in a warming-pan. He assisted in examining
the witnesses who proved so satisfactorily her pregnancy and
her delivery, and in drawing up the declaration by which an
ineffectual attempt was made to disabuse the public mind.
I do not find that Holt joined in the invitation to the
Prince of Orange, or that he took any active part in the revo-
lutionary movement till after the flight of King James —
when the throne, by all good Whigs, was considered vacant.
He then declared that he was completely released from his
allegiance to the abdicated monarch, and exerted himself to
bring about a settlement which, disregarding hereditary right,
should establish a constitutional monarchy, justly esteemed
by him the best guarantee for true freedom.
When the Peers first met and formed a provisional govern-
ment, as they could have no confidence in the legal advice of
the Judges, Holt, with several other liberal lawyers, attended
them as their assessors, and concurred in the proceedings
which terminated in the Prince of Orange summoning the
Conyention Parliament.*
He was not one of the members originally returned to the
House of Commons on this occasion; and when the session
began, as King’s Serjeants had been accustomed to have a
summons to the House of Lords, he took his place on the
woolsack, from which the Judges were banished, and guided
their Lordships in the forms to be observed in reconstructing
the constitution.; But it was thought that his presence in
the Lower House might be more advantageous ; and Serjeant
Maynard, who had been returned both for Plymouth and Beer-
alston, having elected to serve for the former borough, Ser-
jeant Holt was chosen by the latter,—which was represented
for a great many years by such a succession of patriotic law-
yers, that we might almost be reconciled to close boroughs if
the scandal caused by them could be forgotten.
* 5 Parl, Hist. 19, 21. 24. t+ Lords’ Journals, 5 Parl. Hist. 32.
LIFE OF CHIEF JUSTICE HOLT.
On taking his seat, he found the controversy raging be-
tween the two Houses respecting the terms in which King
James’s flight should be described ; the Commons having pro-
posed the expression that “he had abdicated the throne,” and
the Lords insisting on the word “deserted.” This was by
no means a foolish fight about equipollent language, as it is
generally described ; for “ abdication” was to lead to the ap-
pointment of a new occupier of the vacant throne, and “ de-
sertion” to the appointment of a regency to govern for the
lineal heir. Holt was deemed a great acquisition by the
* abdicationists,” and he was immediately added to the com-
mittee of managers intrusted with the duty of debating the
question in open conferences with the opposing managers of
the Lords. His speech in the Painted Chamber (almost the
only specimen of his parliamentary powers) is preserved to us.
He followed immediately after Mr. Somers, who had treated
the subjectly very learnedly, and thus he proceeded : —
“* My Lords, I am commanded by the Commons to assist in the
management of this conference. As to the first of your Lord-
ships’ reasons for your amendment (with submission to your Lord-
ships), Ido conceive it not sufficient to alter the minds of the
Commons, or to induce them to change the word ‘abdicated’ for
your Lordships’ word ‘ deserted.” Your Lordships first say that
‘abdicate’ is a word not known to the common law of England.
But, my Lords, the question is not so much whether it be a word
as ancient as the common law, for the Commons would be justified
in using it if it be a word of known and certain signification. It
is derived from dico, an ancient Latin word, and it is frequently
used by Cicero and the best Roman writers. But that it is a
known English word, and of a known and certain signification
with us, I will prove to you by the dictionary of our countryman
Minshew. He has ‘abdicate,’ as an English word, and says that
it signifies to ‘renounce,’ which is the signification which the
Commons would put upon it. So that I hope your Lordships will
not find fault with their using a word so ancient in itself, and with
such a certain signification in the vernacular tongue. ‘Then, my
Lords, your objection that it is not a word known to the common
law of England, surely cannot prevail, for your Lordships very
well know we have very few words in our tongue that are of
equal antiquity with the common law ; your Lordships know the
language of England is altered greatly in the succession of ages
K 2
131
CHAP.
XXIII.
A.D. 1689,
Conference
between
the two
Houses on
** abdica-
tion ” and
** deser-
tion.”
Holt’s
speech as a
manager
for the
Commons.
132
CHAT:
XXII.
A.D. 1689.
Feb. 13.
He takes
the oaths
to William
and Mary.
Feb. 25.
REIGN OF WILLIAM AND MARY.
and the intermixture of other nations; and if we were obliged to
make use only of words current when the common law took its
origin, what we should deliver in such a dialect would be very
difficult to be understood. Then your Lordships tell us that
‘abdication’ by the civil law is ‘a voluntary express act of re-
nunciation.’ JI do not know if your Lordships mean a renun-
ciation by formal deed. If you do, I confess I know of none
executed by King James before he withdrew from the realm.
But, my Lords, both by the civil law, and by the common law,
and by common sense, there are express acts of renunciation which
are not by deed; for, if your Lordships please to observe, govern-
ment is under a trust, and a deliberate violation of that trust is an
express renunciation of it, although not by formal deed. How can
a man in reason or sense more strongly express a renunciation of
a trust than by subverting it, his actions declaring more strongly
than any words spoken or written could do that he utterly re-
nounces it? ‘Therefore, my Lords, I can only repeat in conclusion,
that the doing an act inconsistent with the being and end of a
thing shall be construed a renunciation or abdication of that
thing.” *
The Lords, probably, were not much convinced by such
reasoning ; but, finding public opinion strongly against them,
and alarmed by William’s threat that, if a regency should be
longer struggled for, he would return to Holland, they,
yielded, — the throne was formally declared to be vacant,
and a joint address of the two Houses was presented to the
Prince and Princess of Orange, requesting them to take
possession of it as King and Queen.
‘ No sooner were they proclaimed than a patent was made
out for Sir John Holt as their Prime Serjeant, and he took
the oaths of allegiance to them. After the “Convention” had
been turned into a “ Parliament,” he spoke only in one debate
during the short time he remained a member of the House
of Commons. This was on the difficult question, “ what
was to become of the taxes which had been voted during the
life of James II.?” Serjeant Holt contended that they were
still payable, as James II., though he.had ceased to reign,
was still alive, and that they passed with the Crown to King
William and Queen Mary. He urged, with much subtlety,
* 5 Parl. Hist. 70.
LIFE OF CHIEF JUSTICE HOLT.
that the grant had been made to the Crown of England dur-
ing the life of an individual, and, therefore, while this indi-
vidual survived, those wearing the crown were entitled to
the benefit of it.* The more prudent course, however, was
adopted of making a fresh grant of the taxes to the new
sovereigns.
Holt does not appear to have taken any part in framing the
* Declaration of Rights” or the “ Bill of Rights.” I do not
think that he ever would have been a great debater, or would
have acquired much reputation as a statesman. The felicity
of his lot proved to be, that he was placed in the situation of
all others the best adapted to his natural abilities, to his ac-
quirements, and to his character.
William and his ministers were laudably anxious to ele-
vate to the bench the most learned and upright men that
could be found in the profession of the law, the corruption
and incompetency of the Judges having been one of the
chief grounds on which the nation had resolved upon a
change of dynasty. Great deliberation was necessary for
this purpose, and fortunately there was time to devote to
it. Judicial business had been entirely suspended since the
late King’s flight ; and during Hilary Term, which ended on
the 12th of February, all the courts in Westminster Hall
had been closed. After many consultations, —to avoid all
favouritism, the following plan was adopted: that every
privy councillor should bring a list of the twelve persons
whom he deemed the fittest to be the twelve Judges;
and that the individuals who had the greatest number of
suffrages should be appointed. It is a curious fact, that,
howsoever the lists of the different privy councillors varied,
they all agreed in first presenting the name of Sir John Holt ;
— such was his reputation for law, — such satisfaction had he
given in dispensing justice when Recorder of London, — and
in such respect was he held for his consistent career in public
life. The King willingly ratified this choice, and when the
appointment was announced in the London Gazette it was
hailed with joy by the whole nation.+ The new Chief
* 5 Parl. Hist. 140. 174.
+ Own Times, iii. 6. At the same time he was elected a Governor of the
Kk 3
133
CHAP.
XXIII.
A.D. 1689.
He is ap-
pointed
Chief Jus-
tice of the
King’s
Bench.
134
CHAP.
XXIII.
A.D. 1689,
REIGN OF WILLIAM AND MARY.
Justice was sworn in before the Commissioners of the Great
Seal on the 19th of April, and took his seat in the Court
of King’s Bench on the first day of Easter Term following.*
According to the ancient traditions of Westminster Hall,
the anticipation of high judicial qualities has been often dis-
appointed. The celebrated advocate, when placed on the
bench, embraces the side of the plaintiff or of the defendant
with all his former zeal, and—unconscious of partiality or
injustice—in his eagerness for victory becomes unfit fairly to
appreciate conflicting evidence, arguments, and authorities.
The man of a naturally morose or impatient temper, who had
been restrained while at the bar by respect for the ermine, or
by the dread of offending attorneys, or by the peril of being
called to a personal account by his antagonist for imperti-
nence, —when he is constituted a living oracle of the law,—
puffed up by self-importance, and revenging himself for past
subserviency, is insolent to his old competitors, bullies the
witnesses, and tries to dictate to the jury. The sordid and
selfish practitioner, who, while struggling to advance himself,
was industrious and energetic, having gained the object
of his ambition, proves listless and torpid, and is quite
contented if he can shuffle through his work without com-
mitting gross blunders or getting into scrapes. Another,
having been more laborious than discriminating, when made
a judge, hunts after small or irrelevant points, and obstructs
the business of his court by a morbid desire to investigate
fully and to decide conscientiously. The recalcitrant barrister,
who constantly complained of the interruptions of the court,
when raised to the bench forgets that it is his duty to listen
and be instructed, and himself becomes a by-word for im-
patience and loquacity. He who retains the high-minded-
ness and noble aspirations which distinguished his early
career may, with the best intentions, be led astray into dan-
gerous courses, and may bring about a collision between different
authorities in the state which had long moved harmoniously,
by indiscreetly attempting new modes of redressing grievances,
and by an uncalled-for display of heroism.
Charter-House in the room of Lord Chancellor Jeffreys.—Corresp, of E. of
Clar. ii. 276.
* Fle was sworn a member of the Privy Council, August 25. 1689.
LIFE OF CHIEF JUSTICE HOLT.
None of these errors could be imputed to Holt. From his
start as a magistrate he exceeded the high expectations which
had been formed of him, and during the long period of twenty-
two years he constantly rose in the admiration and esteem of
his countrymen. ‘To unsullied integrity and lofty independ-
ence, he added a rare combination of deep professional know-
ledge with exquisite common sense. According to a homely
but expressive phrase, “there was no rubbish in his mind.”
Familiar with the practice of the court as any clerk, —ac-
quainted with the rules of special pleading as if he had spent
all his days and nights in drawing declarations and demurrers,
— versed in the subtleties of the law of real property as if
he had confined his attention to conveyancing, —and as a
commercial lawyer much in advance of any of his con-
temporaries, — he ever reasoned logically, — appearing at the
same time instinctively acquainted with all the feelings of
the human heart, and versed by experience in all the ways of
mankind. He may be considered as having a genius for
magistracy, as much as our Milton had for poetry, or our
Wilkie for painting. Perhaps the excellence which he
attained may be traced to the passion for justice by which he
was constantly actuated. This induced him to sacrifice ease,
and amusement, and literary relaxation, and the allurements
of party, to submit to tasks the most dull, disagreeable, and
revolting, and to devote all his energies to one object, —
ever ready to exclaim —
. . . * Welcome business, welcome strife,
Welcome the cares of ermined life ;
The visage wan, the purblind sight,
The toil by day, the lamp by night,
The tedious forms, the solemn prate,
The pert dispute, the dull debate,
The drowsy bench, the babbling hall,—
For thee, fair Jusricr, welcome all!!!”
Holt derived much advantage in his own time from the
contrast between him and the Judges who had recently pre-
ceded him. Accordingly, his contemporaries speak of him
with enthusiasm. Burnet, after giving an account of the
manner in which the Revolution Judges were selected, says,
«The first of these was Sir John Holt, made Lord Chief
Justice of England, then a young man for so high a post, who
x 4
135
CHAP:
XXIII.
A.D. 1689.
His merits
as a Judge.
136
CHAP.
XXIII.
a.p. 1689
—1710.
He is
praised by
the Tatler,
His re-
porters.
*
REIGN OF WILLIAM AND MARY.
maintained it all his time with a great reputation for capacity,
integrity, courage, and dispatch.” * Said the TarLeEr, “ He
was a man of profound knowledge of the laws of his
country, and as just an observer of them in his own person.
He considered justice as a cardinal virtue, not as a trade for
maintenance. The criminal before him knew that, though his
spirit was broken with guilt, and incapable of language to
defend itself, his judge would wrest no law to destroy him,
nor conceal any that would save him. He never spared vice ;
at the same time he could see through the hypocrisy and
disguise of those who have no pretence to virtue themselves
but by their severity to the vicious.” t
The lustre of his fame in later times has been somewhat
dimmed by our being accustomed to behold judges little in-
ferior to him; but we ought to remember that it is his ight
which has given splendour to these luminaries of the law.
During a century and a half, this country has been renowned
above all others for the pure and enlightened administration
of justice; and Holt is the model on which, in England, the
judicial character has been formed.
He complained bitterly of his reporters, saying that the
skimblescamble stuff which they published “would “make
posterity think ill of his understanding, and that of his
brethren on the bench.” He chiefly referred to a collection
of Reports called “ MopErn,” embracing nearly the whole of
the time when he sat on the bench, — which are composed in
a very loose and perfunctory manner. More justice is done
to him by Salkeld, Carthew, Levinz, Shower, and Skinner,—
but these do little more than state drily the points which he
decided, and we should have been left without any adequate
memorial of his judicial powers had it not been for admirable
Reports of his decisions published after his death. These,
beginning with Easter Term, 6 W. & M., were compiled by
Lord Raymond, who was his pupil, and who became his
successor. Many of them are distinguished by animation
as well as precision, and they form a delightful treat to the
happy few who have a genuine taste for juridical science.
In deciding private rights, Chief Justice Holt’s great
* Own Times, iii. 6, t+ Tatler, No. xrv.
LIFE OF CHIEF JUSTICE HOLT.
achievement was, that he moulded the old system which he
found established to the new wants of an altered state of
society. The rules of the common law had been framed in
feudal times, when commerce was nearly unknown and per-
sonal property was of little value. Manufactures were now
beginning to flourish; there was an increased exchange of
commodities with foreign countries; and the English colo-
nies in America were rising into importance. Yet, it having
been adjudged in the Year-Booxs that “a chose in action
(or debt) cannot be transferred, because livery of seisin can-
not be given of it as of land,” the negotiability of bills of
exchange and of promissory notes (or goldsmiths’ notes, as
they were called) was in a state of utter confusion, and
nobody could tell what were the liabilities or remedies
upon them.* By a long series of decisions, and by an act
of parliament which he suggested, he framed the code by
which negotiable securities are regulated nearly as it exists
at the present day. He likewise settled several important
questions in the law of insurance, although it was reserved
for Lord Mansfield to expand and to perfect this important
branch of our jurisprudence. From Holt’s acquaintance with
the writings of the civilians, he most usefully liberalised,
defined, and illustrated the general law of contracts in this
country.
The most celebrated case which he decided in this depart-
ment was that of Coggs v. Bernard, in which the question
arose, “‘ whether, if a person promises without reward to take
care of goods, he is answerable if they are lost or damaged
by his negligence?” In a short compass he expounded with
admirable clearness and accuracy the whole law of batlment,
or the liability of the person to whom goods are delivered
for different purposes on behalf of the owner; availing him-
self of his knowledge of the Roman civil law, of which most
* Tt was then doubted whether any one could draw, accept, or indorse a bill
of exchange except a merchant ?— whether notice of the dishonour of a bill was
necessary to charge the drawer or indorser?—whether an indorser was liable
except on default of the drawer ?— whether there was any distinction between
foreign and inland bills ?—-whether interest was recoverable on dishonoured
bills ? and whether a promissory note, payable to order, was transferable by in-
dorsement ?
137
CHAP.
XXIII.
A.D. 1689
—1710.
His cele-
brated
judgment
in Coggs »,
Bernard,
138
CHAP:
XXIII.
A.D. 1689
—I1710,
He lays
down the
doctrine
that a slave
becomes
free by
breathing
the air of
England.
REIGN OF WILLIAM AND MARY.
English lawyers were as ignorant as of the Institutes of
Menu. ‘Thus he began: —
“ There are six sorts of bailments : — First, a mere delivering
goods by one man to keep for the use of the owner; and this I call
a depositum. 'The second sort is where goods are lent to a friend
gratis to be used by him; and this is called commodatum, because
the thing is to be restored in specie. The third sort is where
goods are left with the bailee to be used by him for hire; this is
called locatio et conductio ; the lender is called locator, and the
borrower conductor. ‘The fourth sort is where goods are delivered
to another as a pawn to be a security to him for money borrowed
of him by the bailor; and this is called in Latin vadium. The
fifth sort is where goods are delivered to be carried, or something
to be done about them, for a reward to be paid by the person who
delivers them to the bailee. The sixth sort is where there is a
delivery of goods to somebody who is to carry them or do some-
thing about them gratis, without any reward for such his carriage
or work ; which is the present case.”
He then elaborately goes over the six sorts of bailment,
showing the exact degree of care required on the part of the
bailee in each, with the corresponding degree of negligence
which will give a right of action to the bailor. In the last
he shows that, in consideration of the trust, there is an
implied promise to take ordinary care; so that, although
there be no reward, for a loss arising from gross negligence
the bailee is liable to the bailor for the value of the goods.
Sir William Jones is contented that his own masterly
** Hssay on the Law of Bailment” shall be considered merely
as a commentary upon this judgment; and Professor Story,
in his “‘ Commentaries on the Law of Bailments,” represents
it as “a prodigious effort to arrange the principles by which
the subject is regulated in a scientific order.”
Holt was the first to lay down the doctrine, which was
afterwards fully established in the case of Somersett the
negro *, that the status of slavery cannot exist in England,
and that as soon as a slave breathes the air of England he is
free. The question originally arose before him in a very
technical shape. In point of fact, a slave had been sold in
Virginia, where slavery was allowed by law; and, an action
FeO Stir. 23.
LIFE OF CHIEF JUSTICE HOLT.
being brought in the Court of King’s Bench for the price,
the declaration stated that “ the defendant was indebted to
the plaintiff in the parish of St. Mary-le-Bow, in the ward of
Cheap, in the city of London, for a negro slave there sold
and delivered,” —allegations of time and place in such pro-
ceedings being generally immaterial. But on this occasion,
after a verdict for the plaintiff, there was a motion in arrest
of judgment because the contract in respect of which the
supposed debt arose was illegal. Holt, C. J.: ‘As soon as
a negro comes into England he is free; one may be a villein
in England, but not a slave. The action would have been
maintainable if the sale had been alleged to be in Virginia,
and that, by the law of the country, slaves are saleable
there.” Judgment arrested.*
Subsequently, an action of trover was brought in the
Court of Queen’s Bench to recover the value of a negro
alleged to be the property of the plaintiff, and to have been
unlawfully detained by the defendant. The plaintiff’s counsel
relied upon a decision of the Court of Common Pleas, “that
trover will lie for a negro, because negroes are heathens,
and therefore a man may have property in them, and,
without averment, notice may be taken judicially that
negroes are heathens.” But per Holt, C. J.: ‘*'Trover does
not lie for a black man more than for a white. By the
common law no man could have a property in another man,
except in special cases, as in a villein, or a captive taken
in war; but in England there is no such thing as a slave,
and a human being never was considered a chattel to be sold
for a price, and, when wrongfully seised, to have a value put
upon him in damages by a jury like an ox or an ass.” f
He likewise scouted the doctrine about “ forestalling and
regrating,” by which commerce continued to be cramped
down to the end of the reign of George ILI. ; showing that,
if acted upon, every man who wished to have a dish of fish
must go and buy it at Billingsgate, as it would be unlawful
for fishmongers to buy turbot or lobsters there for the pur-
pose of selling them again. t
* Smith v. Brown, Cases temp. Holt, 405.
+ 3 Keble, 685.; 1 Lord Raym. 146.; 2 Lord Raym. 1275. ; Salk, 666.
¢ 1 Shower, 292.
139
CHAT,
XXITI.
A.D. 1689
—1710.
140
CHAP:
XXIII.
A.D. 1689
—1710.
His con-
struction of
the statute
requiring
persons to
attend
their
parish
churches.
He puts
an end to
the prac-
tice of
giving evi-
dence
against
a prisoner
of prior
miscon-
duct —
and of
trying pri-
soners in
fetters.
REIGN OF WILLIAM AND MARY.
He showed considerable boldness in deciding that under the
statute of Elizabeth, subjecting to a penalty all who do not
frequent their parish church on Sunday, a man is excused
who frequents any other church. Holt, C. J.: “ Parishes
were instituted for the ease and benefit of the people, and
not of the parson, that they might have a place certain to
repair to when they thought convenient, and a parson from
whom they had right to receive instructions; and if every
parishioner is obliged to go to his parish church, then the
gentlemen of Gray’s Inn and Lincoln’s Inn must no longer re-
pair to their respective chapels, but to their parish churches ;
otherwise they may be compelled to it by ecclesiastical
censures.” *
He put an end to the practice which had hitherto pre-
vailed in England, and which still prevails in France, of
trying to show the probability of persons having committed
the offence for which they are tried by giving evidence of
former offences of which they are supposed to have been
guilty. Thus, on the trial before him of Harrison, for the
murder of Dr. Clench, the counsel for the prosecution calling
a witness to prove some felonious design of the prisoner three
years before, the Judge indignantly exclaimed, “ Hold, hold!
what are you doing now? Are you going to arraign his
whole life? How can he defend himself from charges of
which he has no notice? and how many issues are to be
raised to perplex me and the jury? Away, away! that
ought not to be; that is nothing to this matter.” f
He likewise put an end to the revolting practice of trying
prisoners in fetters. Hearing a clanking when Cranburne,
charged with being implicated in the “ Assassination Plot,”
was brought to the bar to be arraigned, he said, without any
complaint having been made to him, “I should like to know
why the prisoner is brought in ironed. If fetters were ne-
cessary for his safe custody before, there is no danger of
escape or rescue here. Let them be instantly knocked off.
When prisoners are tried, they should stand at their ease.” t
A still more important improvement in criminal trials, on
* Britton v. Standish, Cases temp, Holt, 141.
t 12 St. Tr. 833—874. t 13 St. Tr. 221
LIFE OF CHIEF JUSTICE HOLT.
his suggestion, was introduced by Parliament passing an
act which, for the first time, allowed witnesses called for the
prisoner to be examined upon oath. *
Holt’s associates in the King’s Bench were very respectable
men, who had either been removed for their independence
by James II., or were selected from the bar for knowledge
and good character. ‘They occasionally differed from him,
but never factiously combined against him. We have, on
the contrary, some remarkable instances of their candour.
Thus, in Regina v. Tutchin, Powys and Gould having de-
livered opinions one way, and Powell and Holt the other,
the report concludes with this “Memorandum: Powys, Justice,
recanted instanter, and Gould, Justice, hésttabat.”t At times
he was too subtle and profound for them. Of this Lord
Raymond gives an instance in language which shows that
he had no great veneration for the puisnies. After mention-
ing a decisive objection to an action started by the Chief
Justice, he says, ‘“‘ The three judges seemed to be in a sur-
prise, and not, in truth, to comprehend this objection; and,
therefore, they persisted in their former opinion, talking of
‘agreements, ‘intent of the party, ‘binding of the land, and
I know not what; and so they gave judgment for the plaintiff,
against the opinion of Holt, Chief Justice.” {
We haye a remarkable proof of the overwhelming weight
which his opinion carried, even when he was wrong. An
action being brought against the Postmaster General for the
loss of Exchequer bills occasioned by the negligence of an
inferior agent in the employment of the Post Office, Holt, by
a false analogy between this and actions against the sheriff
and other officers who are supposed to do in person the duty
the breach of which is, complained of, maintained that the
Postmaster General was liable. Powys, Gould, and Turton,
taking a juster view of the subject, said that, although an
action lies against a public officer at the suit of those who
suffer a private damage from his default, it must be brought
against the person who has violated the law; and that to
apply the maxim respondeat superior to the head of a great
* 7] Anny st, 2encs. 9s + 6 Mod. 287.
t Brewster v. Kitchen, 1 Lord Raym. 322.
141
CHALE:
XXIII.
A.p. 1689
—1710.
Holt’s in-
fluence
with his
brother
judges.
Weight of
his opi-
nion with
the public.
142
CHAP.
XXIII.
A.D. 1689
—1710.
His con-
duct in
presiding
at the trial
of state
prosecu-
tions,
REIGN OF WILLIAM AND MARY.
department of the state would be injurious to the indi-
vidual, and detrimental to the public. So judgment was
given for the defendant. But, the plaintiff having declared
that he would bring a writ of error in the Exchequer Chamber,
and, if necessary, to the House of Lords, the Postmaster
General was so frightened, and considered it so certain that
Holt would be declared to be in the right, that, rather than
continue the litigation, he paid the whole of the demand.*
One of the most whimsical questions which arose before
him he thus settled: “If a man be hung in chains on my
land, after the body is consumed, I shall have the gibbet and
chain as affixed to the freehold.” +
But, as a mere Judge settling civil rights, great as were
his merits, he probably would soon have been known only to
dull lawyers who search for precedents. It was by his con-
duct in presiding on the trial of state prosecutions, and in
determining questions of constitutional law in which the two
Houses of Parliament were parties, that he acquired an im-
mortal reputation.
During the two last preceding Stuart reigns, the adminis-
tration of criminal justice in cases in which the Crown was
concerned had been becoming worse and worse, till at last
it reached the utmost verge of infamy. The most powerful
justification of the Revolution will be found in the volumes
of the State Trials; and I have heard the late Lord Tenterden,
a very zealous though enlightened defender of indefeasible
hereditary right, declare that “they almost persuaded him
to become a Whig.” Chief Justices, worse than any before
known, were turned out to make place for successors who
were still more atrocious. From the proceedings on the
trials of Alderman Cornish and of Mrs. Gaunt we may see
that, from a course of unblushing violation of the rules framed
for the protection of innocence, the judges had lost all sense
of decency, and were in the habit of browbeating witnesses,
* Lowe v. Sir Robert Cotton, 1 Lord Raym. 646, ‘This strange opinion of
Holt was solemnly overruled by the Court of King’s Bench in Lord Mansfield’s
time; the law ever since being considered quite settled in favour of the Post-
master General. Whitfield v. Lord Le Despencer, Cowp. 754.
+ 1 Lord Raym. 738. But the French Courts lately decided that a stone
falling from the heavens belongs to the finder, and not to the owner of the field
on which it falls,
LIFE OF CHIEF JUSTICE HOLT.
insulting juries, and seeking to crush the accused, without
any consciousness of impropriety.
Holt had been Chief Justice little more than a year, when,
as a Criminal Judge between the Crown and the subject, his
qualities were put to a severe test. Lord Preston, a Scottish
nobleman, had engaged in a very formidable conspiracy to
dethrone King William and to restore King James. Had
he succeeded, he would have been celebrated in history for
his loyalty ; and the first consequence would have been, that
the ministers and judges now acting under royal authority
would have been tried as traitors. According to recent
examples, the prisoner, if not attainted by act of parliament
without the form of trial, ought, after reading some deposi-
tions against him taken in his absence, and the examination
of a pretended accomplice, to have been stopped as often as
he attempted to speak in his defence; and, upon a verdict of
guilty by a packed jury, to have been led off to execution.
But this was a new era in our juridical annals. Lord Preston
had quite as patient and as fair a trial as any prisoner would
have before Lord Denman in the reign of Queen Victoria.
He first resolutely insisted that he was not liable to be tried
in this fashion, because he was a peer of Scotland. When
his plea was properly overruled, he expressed some appre-
hension that he might have given offence by his pertinacity ;
but the Chief Justice mildly observed, “ My Lord, nobody
blames you, though your Lordship do urge matters that can-
not be supported; and we shall take care that they do not
tend to your Lordship’s prejudice. We consider the condition
you are in; you stand at the bar for your life: you shall
have all the fair and just dealings that can be; and the Court,
as in duty bound, will see that you have no wrong done you.”
Although a clear case for the Crown was made out by wit-
nesses of undoubted credit, and the Chief Justice summed up
the evidence with perfect accuracy and fairness, the prisoner
repeatedly interrupted him. Holt, C. J.: “ Interrupt me as
much as you please, if you think I do not observe right; I
assure you I will do you no wrong willingly.” Lord Preston:
“ No, my Lord, I see it well enough that your Lordship
would not.” When the jury were about to retire to consider
143
CHAP.
XXIII,
Trial of
Lord Pres-
ton for high
treason.
A.D. 1690.
A.D. 1696.
Rex v.
Charnock.
REIGN OF WILLIAM AND MARY.
of their verdict, Lord Preston requested to speak again,
although he had been before fully heard. Holt, C. J.: “ It
is contrary to the course of all proceedings to have anything
said to the jury after the Court has summed up the evidence ;
but we will dispense with it: what further have you to say ?”
Lord Preston: “I humbly thank your Lordship; I am not
acquainted with such proceedings, but, whatsoever my fate
may be, I cannot but own that I have had a fair trial for my
life.” He was then patiently heard, and he chiefly com-
plained of some harsh treatment he had experienced from the
new Government when he wished, as he alleged, to live
quietly in the country. Holt, C. J.: “Suppose your Lord-
ship did think yourself hardly used, yet your Lordship must
remember it was in a time of danger your Lordship was
taken up, and you had showed your dissatisfaction with the
present Government; and, therefore, they were not to be
blamed if they secured themselves against you.” The jury,
without hesitation, found a verdict of Guiury ; but, with the
entire concurrence of the Chief Justice, the prisoner after-
wards received a free pardon.*
When Charnock, and the other conspirators engaged in the
attempt upon the life of King William, came to be tried
before him, although he was obliged to refuse them a copy
of the indictment and the assistance of counsel because the
statute to regulate trials for high treason had not come into
operation, he conducted the trial with the utmost impartiality
aud moderation, and in strict conformity to the rules of evi-
dence as we now understand them. At the same time, he
answered with firmness the objection that ‘words cannot
amount to treason,” marking the distinction whether the
words have reference to an act. Holt, C. J.: “Now I must
tell you, gentlemen, it is true in some cases that words, how-
ever seditious, are not treason; for such words loosely spoken,
without relation to any act or design, are only a misdemeanor.
But arguments, and words of persuasion, to engage in a
design on the King’s life, and directing or proposing the best
way for effecting it, are overt acts of high treason. If two
agree together to kill the King, though the agreement be verbal
* 12 St. Tr. 646—822.; Lives of the Chancellors, iv. 103.
LIFE OF CHIEF JUSTICE HOLT.
only, they are guilty of this offence ; consulting together for
such a purpose, though there is nothing reduced to writing,
and nothing done upon it, is an overt act of high treason.” *
The prisoners were very justly found guilty, and executed.
Before Ambrose Rookwood, implicated in the same con-
spiracy, could be brought to trial, the statute for regulating
trials for high treason had come into operation; and Sir
Bartholomew Shower, being assigned as counsel for him, was
making some apologies for the boldness of the line of defence
adopted. Holt, C. J.: “Never make apologies, Sir Bar-
tholomew, for it is as lawful for you to be of counsel in this
case as it is in any other case in which the law allows counsel.
It is expected you should do your best for those you are
assigned to defend against the charge of high treason (though
for attempting the King’s life), as it is expected in any other
case that you do your duty to your client.” | He summed up,
however, with energy, taking care, as he always properly did,
to assist the jury in coming to a right conclusion. Thus
he began: —“ The prisoner is indicted for high treason in
designing and compassing the death of the King, which was
to be effected by an assassination in the most barbarous and
wicked manner, being to surprise the King and murder him
in his coach. The question, gentlemen, is, whether this pri-
soner be guilty of the crime, or no?” t
Holt’s conduct, in presiding at these trials, was applauded
even by the Tories. But a charge was brought against him,
by Ralph, of straining the law of high treason to please the
Government in the case of Sir John Freind.§ The bigoted
historian, having bitterly censured the conviction, says, with
affected candour, “ The Lord Chief Justice Holt, who pre-
sided on this occasion, has in general the character of an up-
right judge; but almost all lawyers have narrow minds, and,
* 12 St. Tr. 1451. Afterwards, on the trial of Sir William Parkyns, con-'
cerned in the same plot, Holt, in commenting on the treasonable consult, ob-
served, — “ But, says Sir William Parkyns, ‘this is only words, and words are
not treason;’ they are words that relate to acts, and, if you believe that they
were spoken, they amount to treason.”” — 13 St. Tr. 132. These passages, if
cited, might have considerably shortened certain debates in the House of Com-
mons in the session of 1848, on the “ Bill for the Protection of the Crown and
Government.”
7S St. Tr, 154, qalbe263. § Ib. 1.
VOL. II. L
145
CHAP.
XXIII.
Rex v.
Rookwood.
A.B. 1696.
Vindiea-
tion of
Holt for
the law
laid down
by him in
Sir John
Freind’s
Case.
146
CHAP.
XXIII.
A.D. 1696.
REIGN OF WILLIAM III. —
by the whole drift of their studies, find themselves biassed to
adhere to the King against the prisoners.” The direction given
to the jury on this occasion, when examined, will be found
quite unexceptionable. The prisoner was indicted for com-
passing the King’s death, and was clearly proved to have had
the design of dethroning him. An overt act relied upon was,
despatching a deputy to France to invite the French King to
send over an army to assist those confederated against the
Government. Having summed up the evidence, the Chief
Justice said: —
“ Now, Sir John Freind insists, as a matter of law, that as the
statute of Edward III. makes two treasons, one compassing the
death of the King, and another the levying of war; and as war
was not actually levied in this case, a bare conspiracy or design to
levy war does not come within this law against treason. For that,
I must tell you, gentlemen, that if there be only a conspiracy to
levy war, it is not treason; but.if the design be either to kill the
King, or to depose him, or imprison him, or put any force or re-
straint upon him, and the way or method of effecting the object is
by levying war, then the conspiracy to levy war for that purpose
is high treason, though no war be levied; for such conspiracy is
an overt act, proving the compassing the death of the King. Ifa
man designs the death, deposition, or destruction of the King, and,
to effect the design, agrees and consults to levy war, — that this
should not be high treason, no war being actually levied, is a very
strange doctrine, and the contrary has always been held to be law.
There may be war levied without any design upon the King’s
person or endangering of it, which, if actually levied, is high
treason ; but a bare design to levy war, without more, does not
amount to that offence.”
This distinction is fully justified by prior authorities, and
has ever since been adhered to. Erskine, in his celebrated
defence of Hardy, actually cites this very passage with ap-
plause, — saying, “If I had any thing at stake short of the
life of the prisoner, I might sit down as soon as I have read
it; for if one did not know it to be an extract from an ancient
trial, one would say it was admirably and accurately written
for the present purpose.” *
* 13 St. Tr. 1—64. The late statute, 11 Vict. ¢. 12., will probably for
ever put an end to such questions, as we shall henceforth have no trials for high
treason unless where there has been an actual design against the person of the
LIFE OF CHIEF JUSTICE HOLT.
Without meaning any reflection upon Holt, who always
maintained his character as a good Whig, I must mention his
doctrine respecting the liberty of the press, which shows that,
in the second reign after the Revolution, the legal right of
political discussion had not yet been acquired. If this doc-
trine were now acted upon, the “ Government Journal,” which
supports, through thick and thin, all the measures of the
administration for the time being, would have a monopoly,
and there is hardly a newspaper published in the United
Kingdom which might not be prosecuted as libellous. On the
trial of the printer of the OBSERVATOR for an article abusing
Queen Anne’s ministers pretty freely, but in language which
we should consider very innocent, the defendant’s counsel
haying attempted to justify it, Holt, C. J., observed: “I
am surprised to be told that a writing is not a libel which re-
ects upon the government, and endeavours to possess the
flects upon the g t, and end to p tl
people with the notion that the government is administered
by corrupt persons. If writers should not be called to ac-
count for possessing the people with an ill opinion of the
government, no government can subsist. You are to con-
sider whether the words which I have read to you do not
tend to beget an ill opinion of the administration of the
government. Their purport is, that ‘ those who are em-
ployed know nothing of the matter, and those who do know
are not employed; that men are not adapted to offices, but
offices to men, out of a particular regard to their interest and
not to their fitness.’” The defendant was accordingly found
4 Pere
guilty.
sovereign, or an actual levying of war, or an actual adhering to the king’s ene-
mies. Conspiracies to bring about a revolution in the government, or to levy
war, will henceforth be prosecuted as felonies. This appears to me to be a
great improvement in our criminal code. The construction put upon. the
statute of Edward III., that a conspiracy to levy war was an overt act, to prove
a compassing of the King’s death, was very strained and far-fetched. Different
offences against the state are now properly discriminated, and between treason
and misdemeanor an intermediate class is established, with easy means of prose-
cution and an appropriate punishment. The conviction of Mitchell upon this
statute has proved its efficacy. (May 29. 1848.)
* 14St. Tr, 1128. But, although such was considered the letter of the law,
the periodical press was much less decorous than at the present day, and the
private life of public men was then mercilessly exposed and traduced. Any one
‘now writing of political opponents as Swift did of Somers and Cowper, with
whom he had been on terms of intimate friendship, would be expelled from
society.
eZ
147
CHAP.
XXIIT.
Liberty of
the press in
the reign
of Queen
Anne.
A.D. 1704.
148
CHAP.
XXIV.
Holt’s con-
test with
the House
of Lords in
Rex v.
Knowllys.
A.D. 1694.
REIGN OF WILLIAM III.
CHAPTER XXIV.
CONTINUATION OF THE LIFE OF LORD CHIEF JUSTICE HOLT TILL
THE TERMINATION OF HIS CONTESTS WITH THE TWO HOUSES
OF PARLIAMENT.
I now come to Holt’s contests with the two Houses of Par-
liament, from which his popularity has principally arisen.
The first was with the House of Lords, and throughout the
whole of it he conducted himself most laudably — strictly
confining himself within the jurisdiction of his court, and,
while he nobly vindicated his own independence, never seek-
ing an opportunity for display or wantonly hazarding a col-
lision between rival authorities.
An indictment for murder having been found against
Charles Knowllys, Esq., and removed by certiorari into the
Court of King’s Bench, he pleaded in abatement “that he
was a peer of the realm, and ought to be tried by his peers,
being, as of right, Earl of Banbury, and lineally descended
from William Knowllys, created Earl of Banbury by King
Charles II.” The replication stated, “‘ that the prisoner had
presented a petition to the Lords spiritual and temporal, pray-
ing that he might be tried by them on this charge, and that
parliament had thereupon, secundum legem et consuetudinem,
resolved that he had no right to the Earldom of Banbury.”
There was a demurrer to the replication, and the Lords very
absurdly were much offended that the Court of King’s Bench
did not instantly, in conformity to this resolution, overrule
the plea. But, after solemn argument, Holt gave judgment
that the plea was good, and the replication bad — mainly
upon the ground that this could not be considered res judicata
as the Lords had no authority to decide a question of peer-
age except on a reference from the Crown, and, therefore,
that their resolution respecting the Earldom of Banbury was —
LIFE OF CHIEF JUSTICE HOLT.
a proceeding coram non judice and a nullity. Having clearly
shown that the Lords had no original jurisdiction on the sub-
ject, and that the question of the prisoner’s right to be tried
as a peer had never been judicially brought before them, he
observed, —
“ T admit that the House of Peers has jurisdiction over its own
members, and is a supreme court; but it is the law which has
vested them with such ample authority, and therefore it is no dimi-
nution to their power to say that they ought to observe the limits
prescribed for them by this law, which, in other respects, hath
made them so great. As to the averment in the replication that
the judgment was ‘ secundum legem et consuetudinem parliamenti,’
I know no reason for its introduction by the King’s counsel
unless they thought to frighten the Judges: but I regard it not;
for though I have great respect and deference for the Houses of
Parliament, yet I sit here to administer justice according to the
law of the land, and the oath I have sworn. Inheritances are to
be determined not by the custom of parliament, but by the com-
mon law of England, which is the birthright of every Englishman.
Custom ought to consist in usage, and I desire to see the pre-
cedent of such judgments. No precedent hath been alleged to
warrant the determing inheritances originally per legem par-
liamenti. If inheritances were determinable by the Lords without
their having jurisdiction, they would have uncontrollable power,
and ‘ res est misera, ubi jus est vagum. ”
So judgment was given in favour of the plea in abatement,
and the prisoner was discharged without being tried.
It is quite clear that Holt had not in the slightest degree
encroached on the privileges of the House of Lords. His
court had jurisdiction of the murder,only upon the sup-
position that the party accused was a commoner, and, unless a
sufficient answer was given to the plea that he was a peer,
its jurisdiction was gone. The resolution of the Lords on
his petition, being a proceeding coram non judice, was no
answer ‘at all, and the trial before the King’s Bench there-
fore could not possibly go on.
Knowllys, when set at liberty, still assumed the title of
Earl of Banbury, and, two or three years afterwards, he
petitioned the Crown for a writ of summons that he might
take his seat as a-peer. This was regularly referred to the
L 3
149
CHAP.
XXIV.
A.D. 1694,
150
CHAP.
XXIV.
He is sum-
moned
before a
Committee
of Privi-
leges,
Feb. 5.
1697-8.
REIGN OF WILLIAM IIif.
House of Lords, who found themselves in a great puzzle ;
for, although they now clearly had jurisdiction to examine
‘and decide upon the claim, they were unwilling to confess
that their former determination was invalid. ‘They very
foolishly resolved to wreak their vengeance upon Lord Chief
Justice Holt, and they made an order that he should attend
the Committee of Privileges appointed to consider the claim.
He attended accordingly, when the Chairman of the Com-
mittee thus addressed him : —
“ My Lord Chief Justice Holt: Their Lordships have perused
the record of the Court of King’s Bench relating to the trial of
the person who calls himself Earl of Banbury for murder, from
which it appears that the Court of King’s Bench thought fit to
quash the indictment against the said person there called Charles
Knowllys, Esq., although the House of Lords had determined that
he had no right to the title of Earl of Banbury. You are now
desired to give their Lordships an account why that Court whereof
you are Chief Justice hath so done.” Holt, C. J.: “Tacknowledge
the thing. I gave the judgment, and I gave it according to my
conscience. We are trusted with the law; we are to be protected
and not arraigned; we are not to give the reasons for our judg-
ment in this fashion, and therefore I desire to be excused giving
any.”
He was directed to withdraw, and, after some deliberation
among the members of the Committee, he was called in
again, and asked with much solemnity “if he persisted in
the answer he had given?”
Holt, C. J.: “The record shows the judgment I gave. It
would be submitting to an arraignment for having given judgment
according to law, if I should give any reasons here. I gave my
reasons in another place at large. If your Lordships report this
my refusal to the House, I should be glad to know when you do so,
that I may then desire to be heard in point of law. The judg-
ment is questionable in a proper method by writ of error; but I
am not to be thus questioned. I am not any way to be arraigned
for what I do judicially. The judgment may be arraigned in a
proper manner, and then, being asked, I will state to your Lord-
ships the reasons on which it rests. I might answer if I would,
but I think it safest to keep myself under the protection the law
has given me. I look upon this as an arraignment ; I insist upon
it, if I am arraigned, I ought not to answer.”
LIFE OF CHIEF JUSTICE HOLT.
The Committee having reported these proceedings to the
House, a resolution was passed “to hear the Lord Chief
Justice as to this point, whether he did right in refusing to
give account to the Committee of his reasons for his judg-
ment in the King’s Bench, in relation to quashing the in-
dictment for murder against a person who claimed to be
Earl of Banbury.” Lord Chief Justice Holt attending, and
being called on, the Lord Keeper said to him, —
“ You are required to give an account why you refused to
answer the questions put to you by a committee of this House.
You expressed a wish to be heard when the report was made,
and their Lordships have now sent for you to know the reasons
why you did not think fit to communicate to the committee the
reasons for your judgment.” Holt, C.J.: “ My Lords, I have
only respectfully to adhere to what I addressed to the committee,
which has been truly reported to your Lordships’ House. Your
Lordships consitute the highest court known in this kingdom
before which all judgments may be brought; and your Lordships
may affirm or reverse them as seems you good. I and my brother
judges, according to immemorial usage, have a summons to attend
in this House ad consulendum. Your Lordships have an un-
doubted right to ask our opinion, with our reasons, on any question
of law which comes judicially before you. If a writ of error
should be brought before your Lordships in Rex v. Knowllys, and
your Lordships ask my opinion upon it, I will most willingly
render the reasons which induced me, according to my con-
science, to give judgment for the prisoner. But I never heard
of any such thing demanded of any judge as that, where there
is no writ of error depending, he should be required to give
reasons for his judgment. I did think myself not bound by law
to answer the questions put to me. What a judge does honestly
in open court, he is not to be arraigned for.”
A debate ensued, and directions were given to the Lord
Keeper to inform him “that the questions asked him by the
Committee were not intended to accuse.”
In truth, this was abandoning the only ground that could be
taken for urging the questions. If there had been any suspi-
cion of corruption, the House, in the exercise of its inquisitorial
powers, might have taken cognisance of the matter, and, per-
haps, examined a party accused; but, in the absence of all no-
tion of improper motive, it was quite plain that a judge could
L 4
151
CHAP.
XXIV.
A.D. 1698.
152
CHAP.
XXIV.
A.v. 1698.
His popu-
larity from
his triumph
over the
House of
Lords.
The
Bankers’
Case.
A.D. 1697
—1700.
REIGN OF WILLIAM III.
not be interrogated respecting the reasons for a judgment not
appealed from. Under such circumstances, the answers could
only be to gratify impertinent curiosity. Holt must have
been aware of the advantage he had, but he contented him-
self with saying, ‘‘ Besides the danger of accusing myself, I
have other good and sufficient reasons for declining to answer
the questions propounded to me.”
The hour of dinner had arrived, which has always
been enough to stop important proceedings in their Lord-
ships’ house. The debate was therefore adjourned till the
following Monday, at which time the Chief Justice was
again ordered to attend. In the meanwhile their Lordships
came to their senses, and found that they had got into a very
foolish scrape. The only step they could now take to
assert their authority was, to commit the Chief Justice to
prison; and, although I do not exactly know what legal
remedy in that case he would have had, the probability is
that, practically, he would have been released by a general
rising of the population of London, —the struggle not adding
much to the credit or authority of their Lordships. The
House, therefore, by an adjournment, prudently avoided
meeting on the day appointed, whereby the order dropped,
and it never was renewed. The public had strongly taken
the side of the Chief Justice, and his health was given with
enthusiasm at all public meetings throughout the kingdom.*
He most cautiously abstained from mixing in party politics.
Not even in private conversation would he offer an opinion
on the question of the Spanish Succession, and he was en-
tirely ignorant of the negotiation of the Partition Treaties.
He remained always on courteous terms with Lord Somers,
but there never was much familiarity between them. In
the famous ‘ Bankers’ Case,” which was factiously agitated
by many, he, from a sense of duty, gave a judgment which
was highly agreeable to the Tories.— Charles II., having
made grants by way of annuity out of the hereditary re-
venues of the Crown, as a compensation to those who had
been defrauded by the shutting up of the Exchequer during
* 12 St. Tr. 1167—1207.; 1 Lord Raym. 10.; Carth. 297.; Salk, 509;
Lord Campbell’s Speeches, 326,
LIFE OF CHIEF JUSTICE HOLT.
the CABAL administration, the question was whether these
grants were binding on King William III.? In the Ex-
chequer Chamber, Holt supported the claim, on principles
which we are rather surprised to find propounded by a Whig
since the Revolution : —
“It is objected,” said he, “that this power in the King, of
alienating his revenue, may be a prejudice to his people, to whom
he must recur continually for supplies. JI answer that the law has
not such dishonourable thoughts of the King as to imagine he will
do anything amiss to his people in those things in which he hath
power so todo. But that which I insist on is, that it is absurd in
its nature to restrain the King from a power of alienating his
revenues, of which he is seised in fee. It is against the nature of
the being of a king that he should have less power than his
people. Suppose that before his accession the King was seised
of lands, the crown descending upon him, he would be seised
jure corone ;—and shall he then have less power over those
very lands than he had when a private person? Shall he now be
disabled to alien by being a king? ‘This would be against a
well-know maxim, that the descent of the crown takes away all
disability. Then it is repugnant to the constitution of the govern-
ment. Suppose the King should be under a sudden danger of
being invaded: if he could not raise money by alienating his
revenue, the nation might perish; for he could not otherwise raise
money than by an act of parliament, for which there might not be
time. And there ought to be a power in all governments to re-
ward persons that deserve well, for rewards and punishments are
the supporters of all governments; and it has been the constant
usage of the kings of England to reward persons deserving of the
government out of the crown revenues by pensions, and giving
estates to support the titles of Earl and other dignities. Some
may say they do not deny the King may alienate his own demesnes
or any lands that come to him by descent or purchase, but this
revenue was settled by act of parliament on the crown, and there-
fore it cannot be alienated. Ido not find any such distinction in
our law books, nor any authority in the common or statute law
that restrains the kings of England from alienating any sort of
their revenues. What reason can be given why some estates
should be alienable and others not? If an estate be settled on a
subject by act of parliament, he may unquestionably alienate it;
and why shall not the King have the same privilege? He has
always done it. All the abbey lands were given to the King by
153
CHAP:
LVS
A D. 1700.
154
CHAP.
XXIV.
A.D. 1700.
Jan. 23,
April 10.
On the re-
moval of
Lord
Somers,
Holt. re-
fuses to be
Lord
Chancellor,
REIGN OF WILLIAM III.
act of parliament in general terms as here, and he has alienated
the whole of them. So the Customs have been always granted
away and charged by the King, although they were given to him
by act of parliament. Here there was a consideration for the
grant in the debt due from the crown to the grantees.”
He was likewise of opinion that the Bankers had a remedy
against the King by petition, or monstrans de droit.* This
opinion was then overruled,— Lord Somers, who held the
great seal, taking the opposite side ; — but a writ of error was
brought in the House of Lords, and there a Tory majority
reversed the judgment of the Exchequer Chamber.
A motion was soon after made in the House of Commons
for the removal of Lord Somers, and, although this was
negatived, the King found that he could no longer go on
with a Whig administration, and he took the great seal
from Lord Somers, who had refused voluntarily to resign it.
King William considered that Holt was by far the fittest
man to succeed to it; and, suspecting that his opinion in the
Bankers’ Case had been influenced by a wish for still higher
elevation, sent for him to Hampton Court, and, showing him
the “ bauble,” offered immediately to deliver it into his hand,
with the title of Lord Chancellor, a peerage being to follow.
What must have been the royal astonishment when Holt pro-
nounced these memorable words, — “I feel highly honoured
by your Majesty’s gracious offer; but all the time I was at
the bar I never had more than one cause in Chancery, and
that I lost, so that I cannot think myself qualified for so
great a trust.”t The King in vain attempted to shake his
resolution, which was perhaps strengthened by the reflection
that the tenure of the office he already held was far more
secure, as there seemed little probability of any administra-~
tion being formed which could last many weeks. All that
Holt could be induced to promise at this interview was, that
if there should be a necessity for putting the great seal into
commission for a short time, he would act as one of the Lords
Commissioners. ‘Trevor, the Attorney General, and others
* 14 St. Tr. 30. So the law then stood. The wonder is to find it so de-
fended. In the succeeding reign the power of alienation was put an end to by
the legislature.
{ Granger, i. 164,; Cole's Memoirs, p. 128.
LIFE OF CHIEF JUSTICE HOLT.
on whom it was pressed, having likewise refused it, a com-
mission became necessary, and it was delivered to the joint
keeping of Lord Chief Justice Holt, Lord Chief Justice
Treby, and Lord Chief Baron Ward.
These Lords Commissioners held it nearly a month; but
this was chiefly in the Vacation between Easter Term and
Trinity Term, and we have no report of any of their de-
cisions. Holt was probably surprised to find that he got on
so well as an Equity Judge, but he felt no regret in trans-
ferring the great seal to Sir Nathan Wright, and returning
to that court where he was sure both to decide properly and
to decide with applause.
Nothing else very memorable occurred to Holt during the
reion of William III. There seemed a probability of his
being placed in a difficult and delicate position, as adviser
to the Peers, upon the impeachment of Lord Somers; but
he was relieved from this embarrassment by the quarrel
between the two Houses, which put a sudden end to the
trial.
It is a curious fact that our “ Deliverer,” although pro-
fessing such a regard for liberty, actually vetoed a bill passed
by the two Houses of Parliament to appoint the Judges
quamdiu se bene gesserint, and still insisted on their holding
during pleasure as long as he himself should rule, although
he agreed to a clause in the “ Act of Settlement,” providing,
that after the limitation of the crown, thereby introduced,
should take effect, they should only be removable on the
address of the two Houses of Parliament.* It may add to
our admiration of Holt’s independent conduct on the bench,
that he might have forfeited his office by displeasing the
Government; but as the arbitrary dismissal of Common
Law judges had been one of the loudest complaints against
James II., the actual peril that a Revolution judge ran must
have been very inconsiderable.
On the accession of Queen Anne, Holt was immediately
reappointed, and under her he continued Chief Justice of
England for eight years longer, with unabated energy and
still increasing reputation.
TD aes Ws LILe Cc. 2;
155
CHAP.
XXIV.
A.D. 1700.
April 27.
He isa
Lord Com-
missioner
of the
Great Seal,
May 21.
March 8.
1702.
Accession
of Queen
Anne.
Holt reap-
156
CHAP.
XXIV.
pointed
Chief Jus-
tice
A majority
of Whigs
in the
House of
Lords, and
of Tories
in the
House of
Commons.
Corrupt
decisions of
the House
of Com-
mons in
election
cases.
The Ayles-
bury Case.
A.D. 1704.
Qu. whe-
ther an ac-
tion could
be main-
tained by
an elector
against a
REIGN OF QUEEN ANNE.
The two Houses of Parliament were soon in an unpre-
cedented state of antagonism to each other. From the ap-
pointment of Whig bishops, from the elevation of some good
Whigs to the peerage, and, I must add, from the superior
intelligence which then distinguished the high aristocracy of
England, — among the Lords there was a decided majority
who supported Whig principles. But Anne’s first House of
Commons was filled with men of whom Addison’s “ Tory
Fox-hunter” and Fielding’s “ Squire Western” might be
considered fair types, —ignorant, bigoted, and factious, —
professing a love for Church and Queen, but mostly
Jacobites in their hearts, —and, although only secretly
drinking to “the King over the water,” openly professing
an abhorrence of Dissenters, among whom they classed all
men of tolerant religious feelings. Their grand scheme was
to perpetuate their power by disqualifying all who did not
take the sacrament according to the rites of the Church of
England from being either electors or representatives, and
by deciding on every controverted election in favour of their
own partisans. In consequence, Tory candidates with only
a small minority of real electors in their favour, by making
corrupt bargains with returning officers, were sent to par-
liament; and petitions to the House of Commons, com-
plaining of these abuses, were found wholly unavailing.
Under these circumstances began the contest about par-
liamentary privileges which has rendered the name of Holt so
illustrious. In the course of it he committed some errors,
and his zeal was sometimes that of an advocate eager for
victory, rather than of a magistrate only desirous of justice ;
but on the whole he showed great discrimination as well as
intrepidity, and deservedly earned the glory which he ac-
quired.
One of the most corrupt returns was by the Bailiffs of
Aylesbury. The defeated candidates, who had a con-
siderable majority of legal votes, being Whigs, knew that
it would be in vain to petition the House of Commons, and
it was resolved that several of the electors whose voteg had
been rejected should respectively bring actions, in the Court
of Queen’s Bench, against. the returning officers. In the
LIFE OF CHIEF JUSTICE HOLT.
first of these, one Ashby was the plaintiff, and he, clearly
making out his case before a jury, recovered a verdict with
large damages. The defendants then moved in arrest of
judgment, on the ground that, although all the facts alleged
by the plaintiff were true, an action at law could not be
maintained by him, and that the only remedy was by petition
to the House of Commons.
The three Puisne Judges associated with Holt were
respectable men, but they laboured under a suspicion of
being Toryishly inclined; and, being rather of timid minds,
they were alarmed by a species of action which had not been
brought hitherto, although the principle on which it rested
was as old as the law itself; and they severally gave opinions
in favour of the defendants, — assigning very weak and in-
consistent reasons. Holt, of a bold and masculine under-
standing, as well as a deep lawyer, saw that, a private injury
being sustained from breach of duty in a public officer, com-
pensation ought to be given by legal process ; and I make no
doubt that his indignation was exalted by the thought that
he was now resisting an attempt to deprive the subject of
legal redress against a corrupt and arbitrary system of
government established by a faction in the House of Com-
mons. Knowing that he was to be overruled in his own
court, thus, in a noble strain of judicial eloquence, he poured
forth arguments and authorities which he hoped might
prevail in a superior tribunal, and which he was sure would
justify him to his country : —
Holt, C. J.: “ The single question is, whether if a free burgess
of acorporation, having an undoubted right to give his vote in the
election of a representative of the borough in parliament, be
maliciously hindered from giving it by the returning officer, he
may maintain an action against the returning officer for the injury
he has suffered? Iam of opinion that judgment ought to be given
for the plaintiff. My brothers differ from me in opinion, and they
all differ from one another in the reasons for the opinion they
have expressed. My brother Gould thinks no action will lie
against the defendant, because, as he says, he is a judge; my
brother Powys indeed says he is no judge, but guast a judge;
- while my brother Powell thinks that the defendant is neither a
judge nor anything like a judge, but only an officer to execute the
returning
officer for
refusing his
vote ?
A.D. 1704.
The three
Puisne
Judges in
the nega-
tive.
Holt
contra.
tte eh oe
158
CHAP.
XXIV.
A.D. 1704.
REIGN OF QUEEN ANNE.
precept, to give notice to the electors of the time and place of elec-
tion, to assemble them together in order to elect, to cast up the
poll, and to declare which candidate has a majority. First, I will
maintain that the plaintiff has a right to give his vote. Secondly,
that being wrongfully hindered in the enjoyment of that right,
the law gives him this action for redress: -— 1. From what my
brothers have said, I find that I must begin to prove that the
plaintiff had a right to vote. It is not to be doubted that the
Commons of England form a part of the government, and have a
share in the legislature, without whom no law passes; but, be-
cause of their numbers, this power is not exercisable by them in
their proper persons, and therefore by the constitution of England
it is to be exercised by representatives chosen by and out of them-
selves, who have the whole power of all the Commons of England
vested in them. Knights of the shire, citizens of cities, burgesses
of boroughs, duly elected, form the Commons’ House of Par-
liament.” After entering at great length into the history of the
representation of counties, cities, and boroughs, he continues:
‘“ Hence it appears that every man that is to give his vote in the
election of members to serve in parliament has a several and par-
ticular right in his private capacity as a freeholder, citizen, or
burgess. And, surely, it cannot be said that this is so inconsider-
able aright as to apply that maxim to it, de minimis non curat lex.
A right that a man hath to give his vote at the election of a
person to represent him in Parliament, there to concur in the .
making of laws which are to bind his liberty and his property, is
of a transcendent nature, and its value is set forth in many sta-
tutes. Thus 34 & 35 H. VIII. c. 13., giving Members of Parliament
for the first time to Cheshire, says that, ‘ for want thereof, the in-
habitants have sustained manifold dishonours, losses, and damages,
as well in their lands, goods, and bodies, as in the civil and politic
governance of the commonwealth of their said county.’ Here,
therefore, is a right. 2.If the plaintiff has a right, he must of
necessity have means of vindication if he is injured in the ex-
ercise or enjoyment of it. Right and remedy, want of right and
want of remedy, are reciprocal. It would look very strange, when
the commons of England are so fond of sending representatives
to parliament, that it should be in the power of a sheriff or other
returning officer to deprive them of such right, and yet that they
should have no redress; this would be a thing to be admired at
by all mankind. My brother Powell, indeed, thinks that an
action on the case is not maintainable because here is no hurt or
LIFE OF CHIEF JUSTICE HOLT.
damage to the plaintiff: but, surely, every injury imports a
damage; a damage is not merely pecuniary ; an injury imports a
damage when a man is thereby hindered of his right. For slander-
ous words, though a man does not lose a penny by the speaking of
them, yet he shall have an action, because the right to his fair
fame is injured. So, if a man receives a slight cuff on the ear,
though it cost him nothing, no, not so much as a little diachylon,
yet he shall have his action, for it is a personal injury. It is no
objection to say this leads to multiplicity of actions ; for if men will
multiply injuries, actions must be multiplied too. Every man
injured ought to have his recompence. But, says my brother
Powys, ‘we cannot judge of this matter, because it is a par-
liamentary thing.’ O! by all means be very tender of that ! But
this matter never can come in question in parliament, and there
the plaintiff could receive no compensation for the wrong he has
suffered. ‘To allow this action will make public officers more
careful to observe the constitution of cities and boroughs, and not
to be partial at all elections, which is, indeed, a great and a grow-
ing mischief, and tends to the prejudice of the peace of the nation,
I agree we ought not to enlarge our jurisdiction; by so doing,
we usurp both on the right of the Queen and the people. But this
is a matter of property determinable before us, and we are bound
by our oaths to judge of it. Was ever such a petition heard of in
parliament, as that a man was hindered of giving his vote and
praying them to give him remedy? ‘The Parliament undoubtedly
would say, ‘take your remedy at law.’ It is not like the case of
determining the merits of the return between the candidates. This
privilege of voting does not differ from any other franchise what-
soever. We do not deny to the House of Commons their juris-
diction to determine elections; but we must not be frightened,
when a matter of property comes before us, by saying, ‘it belongs
to the Parliament.’ The Parliament cannot judge of this injury,
nor give the plaintiff damages for it. If a returning officer cor-
ruptly refuses a vote, and is sued before me, I will direct the jury
to make him pay well for it. It is a great privilege to choose
such persons as are to’ bind a man’s life and property by the laws
they make. This privilege, belonging to the plaintiff, has been
wantonly violated by the defendant; and I am of opinion that,
instead of arresting the judgment, we ought to allow the plaintiff
to have execution for the damages which the jury has awarded to
him.”
Judgment, however, was arrested, and such a triumph was
159
CHAP.
XXIV.
a.v. 1704,
160
CHAP.
XXIV.
A.D. 1704.
Judgment
of the
King’s
Bench re-
versed in
the House
of Lords.
Absurd re-
solutions of
the House
of Com-
mons,
REIGN OF QUEEN ANNE.
this considered to the Tory party, that it was celebrated by
bonfires all over the country. But a writ of error was
brought into the House of Lords, where the Whigs had the
ascendancy.
At the hearing the Judges were called in, and nine at-
tended. Holt adhered to his opinion, and was supported by
Barons Bury and Smith, while Justices Trevor and Price
agreed with the three Puisnies of the Queen’s Bench. Lord
Somers, now an ex-Chancellor, ably expounded the law, and
enforced the arguments in favour of a reversal of the judg-
ment; while Lord Keeper Wright, his successor, not being a
peer, was condemned to silence. But little weight was given
to reasoning or eloquence. It was made a mere party
question, and, on a division, the judgment of the Court of
Queen’s Bench was reversed by a majority of 50 to 16.
The Whigs were at this time very unpopular, and the
decision was viewed with no favour by the public. It threw
the House of Commons into a transport of fury, and after a
long debate they resolved, by a majority of 215 to 97, “ That
the qualification of an elector is not cognizable elsewhere than
before the Commons of England in parliament assembled :
that Ashby, having commenced an action against the Bailiffs
of Aylesbury for rejecting his vote, is guilty of a breach of
the privileges of this House; and that whosoever shall in
future commence such an action, and all attorneys or coun-
cillors soliciting or pleading the same, are guilty of a breach
of the privileges of this House, for which they may expect
condign punishment.”
The conduct of the Commons upon this occasion cannot
be too severely reprobated. They wantonly rushed into a
controversy with the Courts of Law and with the Upper
House of Parliament. The action brought against the re-
turning officer did not in the slightest degree interfere with
any of their functions or any of their privileges; and the
House of Lords, in reversing the judgment of the Queen’s
Bench, had done no more than their duty, in soundly ex-
pounding the law, and administering justice to a suitor at
their bar. The intemperate resolutions passed had a strong
tendency to bring parliamentary privilege into public odium,
LIFE OF CHIEF JUSTICE HOLT.
and to invite dangerous attacks upon it. They were
prompted, not by any respect for freedom, but by the desire
to perpetuate the power of a faction.
The Lords perhaps would have done well if they had
treated this foolish proceeding with silent contempt; but
they appointed a committee, who reported that “ the Com-
mons thereby assumed a power to control the law and to
pervert justice.” A sudden prorogation of Parliament sus-
pended the controversy.
During the recess, the current of popular opinion turned
strongly against the House of Commons; and various con-
stituencies announced their determination, upon a dissolution
of Parliament, to return Whig representatives, who might
rescind the obnoxious resolutions. Encouraged by this spirit,
Paty, and several other electors of Aylesbury, whose votes
had been illegally rejected like Ashby’s, brought fresh actions
against the returning officer.
As soon as Parliament again met, these plaintiffs were all
committed to Newgate, “being guilty of commencing and
prosecuting actions at law for not allowing their votes in the
election of members to serve in parliament, contrary to the
declaration, in high contempt of the jurisdiction, and in
breach of the known privileges of this House.” The captives
having sued out writs of habeas corpus in the Queen’s Bench,
the keeper of the gaol produced them, and made a written
return, setting out at full length the above warrant, under
which they were arrested and detained. ‘They then moved
that they might be set at liberty, on the ground that their
imprisonment was unlawful, as the warrant showed that they
had been unlawfully committed for bringing actions which
the highest tribunal of the country had decided to be com-
petent. On account of the high importance of the ques-
tion, a meeting was called of the twelve Judges, to whom it
was submitted, and eleven of them properly held that no
court of law could inquire into the merits of a commitment
by either House of Parliament, for the same point had been
solemnly decided in Lord Shaftesbury’s case; and it is clear
that the contrary doctrine subjects all parliamentary privilege
to the conttol of the Common Law judges, who are sup-
VOL. II. M
161
CHAP.
XXIV.
A.D. 1704,
Counter-
resolutions
of the
House of
Lords.
March.
Nov. 4.
Writs of
habeas
corpus by
the Ayles-
bury men.
eee
162
_ CHAP.
XXIV.
A.D. 1704.
Holt’s opi-
nion for
discharging
them,
REIGN OF QUEEN ANNE.
posed to be unacquainted with the subject. Holt, C.J.,
however, refused to acquiesce in this opinion, and was for set-
ting the prisoners at liberty : —
“ The legality of the commitment,” said he, “ depends upon the
vote recited in the warrant; and, for my part, I must declare my
opinion to be, that the commitment is illegal, although sorry to
go contrary to an act of the House of Commons and the opinion
of all the rest of the Judges of England. Thisis not such an im-
prisonment as the freemen of England ought to submit to. The
prisoners haye done that which was legal according to the highest
tribunal of the country, and which the House of Commons alone
could not make illegal. Both Houses jointly cannot alter the law
so as to affect the liberty or property of the subject; for this pur-
pose, the Queen must join. The necessity for the concurrence of
the three branches of the legislature constitutes the excellence of
our constitution. How can the bringing of an action at law for
not allowing a vote in the election of members of parliament be
a breach of privilege? The returning officer of a borough is not
a servant of the House of Commons, is not acting by their autho-
rity, and cannot be clothed with any privilege by them. To bring
an action against a person who has no privilege, cannot be a breach
of privilege, whether the action is maintainable or not. If a peer
be charged with any false and scandalous matter, yet if it be by
way of action he cannot have scandalum magnatum. But the
plaintiffs here have a good cause of action, as we know by the
judgment in Ashby v. White. The declaration of the House of
Commons will not make that a breach of privilege which was
none before. The privileges of the House of Commons are well
known, and are founded upon the law of the land, and are nothing
but the law. We all know that the members of the House of
Commons have no protection from arrest in cases of treason, felony,
or breaches of the peace; and if they declare they have privileges
which they have no legal claim to, the people of England will not
be estopped by that declaration. This privilege of theirs concerns
the liberty of the people in a high degree, by subjecting them to
imprisonment for that which heretofore has been lawful, and which
cannot be made unlawful without an act of parliament. As to the
House of Commons being: judges of their own privileges, I say
they are so when a question of privilege comes before them. The
Judges have been cautious in giving an answer in Parliament in
matter of privilege of Parliament. But when such matter arises
before them in Westminster Hall, they must determine it. Sup-
LIFE OF CHIEF JUSTICE HOLT.
pose the actions had proceeded, and the privilege had been pleaded
as a defence, we must have given judgment whether it exists or
not. Why are we not to adjudge on the return to the habeas
corpus? The matter appears on the record as well this way as
if it were pleaded to an action. We must take notice of the lex
parliamenti, which is part of the law of the land. As to what my
Lord Coke says, that the lex parliamenti est a multis ignorata,
that is because they will not apply themselves to understand it. If
the votes of both Houses cannot make law, by parity of reason
they cannot declare it. The judgment in Ashby v. White proves
that such an action is no breach of the privileges of the Commons.
Why did they not commit him when he brought the action? The
suffering of him to go on with his action, is a proof that this pre-
tence of privilege is a new thing. ‘These men have followed his
steps, and yet they are said to have acted in breach of the pri-
vileges of the Commons. The Commons may commit for a crime ;
but not without charging that a crime has been perpetrated. Lord
Shaftesbury was committed for a contempt done in the House.
Here the cause of the commitment being expressed in the warrant,
we are precluded from presuming that it was for something cri-
minal of which the Commons could take notice. J am therefore
of opinion that the prisoners ought to be set at liberty.”
This doctrine seems plausible as well as bold, but, when
examined, will be found contrary both to sound reason and to
authority ; for if the sufficiency of the cause of commitment
by either House of Parliament can be examined on a return
to a habeas corpus, then all parliamentary privilege would be
determinable without appeal by every court, and by every
single judge, in whom the power of granting a writ of habeas
corpus is vested; and the two Houses of Parliament, deprived
of the power of commitment for a contempt, which belongs to
inferior tribunals, could not effectually exercise the functions
assigned to them by the constitution. There must be a pos-
sibility of the abuse of power wherever it is given without
appeal, and in certain cases it must be so given under every
form of government. One of these is the power of a su-
preme legislature, or any branch of it, to judge of its own
privileges.
According to the opinion of the eleven Judges, Paty and
the other prisoners were remanded on the ground that “ the
M 2
He is over-
ruled by all
the other
Judges.
164
CHAP.
XXIV.
A.D. 1704,
Qu. whe-
ther writ
of error lies
on a judg-
ment ona
return to a
writ of
habeas
corpus ?
Commit-
ments of
counsel by
the Com-
mons.
Fabulous
story of
Chief Jus-
REIGN OF QUEEN ANNE.
cause of their commitment was not within the jurisdiction of
the Court of Queen’s Bench.” *
Encouraged, however, by the opinion of Holt, and anticipat-
ing a favourable consideration from the rival branch of the
legislature, Paty, and the other Aylesbury men, when re-
committed to Newgate, resorted to the attempt of bringing a
writ of error to the House of Lords on the decision of the Court
of Queen’s Bench. No such writ of error had ever been be-
fore brought, and the proceeding involved the most serious con-
sequences. Sir Nathan Wright, who was then Lord Keeper of
the Great Seal, summoned a meeting of the twelve Judges to
advise him whether ea debito justitie the writ should issue?
Although there was no precedent for such a proceeding,
Holt eagerly supported it, and, without giving any decided
opinion that the judgment of the Queen’s Bench could thus
be reviewed, he said that “ at all events the writ ought to
issue, and that the House of Lords would decide whether
they had jurisdiction or not.” In this opinion he at last in-
duced all the Judges except one to concur.
The Commons were in a fury. They immediately made
out warrants of commitment against the counsel in support of
the application, two of whom were lodged in Newgate.
The third made his escape from the Serjeant-at-arms by let-
ting himself down from a high window in the Temple with
the assistance of a rope and his bed-clothes. Some violent
Tory members even intimated a determination to move the
commitment of Holt the Chief Justice himself, whom they
considered the mortal enemy of their privileges. Nay, the
following narrative is actually to be found in various books
of anecdotes, it having been copied, without inquiry, from one
into another : —
“The Serjeant-at-arms of the Commons presented himself
before Chief Justice Holt, sitting on his tribunal, and summoned
* 2 Lord Raym, 11)6. This decision has been acquiesced in ever since
Recently, some Judges have held out a threat that if the cause of commitment
expressed in the warrant appears to them not to amount properly to a breach of
parliamentary privilege they would discharge the prisoner; but such an attempt
at usurpation is effectually guarded against by the practice which I had the
honour to introduce in the case of the Sheriffs of Middlesex, arising out of the
famous case of Stockdale v. Hansard, of returning to the habeas corpus in general
words a commitment for breach of privilege, — which is allowed, on all hands,
entirely to oust the jurisdiction of the Common Law courts,
LIFE OF CHIEF JUSTICE HOLT. 165
him to appear at the bar of the House to purge himself of his share CHAP.
of the contempt. That resolute defender of the laws said, with a atk”
voice of authority, ‘Begone !’ Soon after came the Speaker in |.) oy
his robes and full-bottom wig, attended by many high-privilege threatening
members, and said, ‘ Sir John Holt, Knight, Chief Justice of her panes:
Majesty’s Court of Queen’s Bench, in the name of the Commons gpeaker of
of England, and by their authority, I summon you forthwith to the House
-appear at the bar of the House to answer the charge there to be iene rs
brought against you for divers contempts by you committed in
derogation of their ancient and undoubted privileges. His Lord-
ship calmly replied to him in these remarkable words: ‘ Go back
to your chair, Mr. Speaker, within these five minutes, or you may
depend upon it I will lay you by the heels in Newgate. You
speak of your authority, but I tell you that I sit here as an in-
terpreter of the laws and a distributor of justice, and if the whole
House of Commons were in your belly I would not stir one foot.’
The Speaker, quailing under this rebuke, quietly retired with his
high-privilege body guard ; and the Commons, terrified to contend
longer with such an antagonist, let the matter drop.”
But an inspection of the Journals proves that no such
proceedings ever took place, and shows what the real catas-
trophe was. The two Houses, after a series of hostile resolu-
tions and counter-resolutions, seemed ready to come to open
war, the Commons setting writs of habeas corpus at defiance,
and the Lords seeming determined to storm “ Little Ease,”
in which a counsel was imprisoned for acting in obedience to
their authority. As a preliminary step, they presented an
address to the Queen, praying her Majesty to issue the writ
of error to reverse the judgment of the Queen’s Bench. The
Queen returned for answer, “that she saw an absolute ne-
cessity for putting an immediate end to the session of Par-
liament.”
A dissolution almost immediately followed, and such was April s.
the reaction that the new elections turned out greatly in 1%°%
The abuse
favour of the Whigs. In consequence, the Administration of privilees
: r years the
was remodelled, and, Lord Keeper Wright being dismissed, Tsdacnd
the great seal was again offered to Sir John Holt. He was Cone
Las : remedie
now so popular, and so much respected by all parties, that py public
his accession to a political office would have strengthened opinion on
a general
the Whig Government; and Lord Godolphin, and the Duchess election.
um 3
166
CHAP.
XXIV.
A.D. 1705.
Holt again
refuses the
Great Seal.
’ Oct. 11.
Oct. 25.
REIGN OF QUEEN ANNE.
of Marlborough in the zenith of her sway, pressed him to
accept it on any terms he might demand; but he said he was
now more unfit for it than ever, as years and infirmities were
coming upon him, and it was a day too late for him to be
entering on a new career. Sarah thereupon gave the great
seal to young Mr. Cowper, of whose youthful beauty she
was supposed to be innocently enamoured, and Holt was
quietly permitted to end his days as Chief Justice.*
When the new Parliament met, a large majority of the
members were found to disapprove the proceedings of the
last House of Commons in the Aylesbury Case; and the
plaintiffs in the additional actions, having been discharged out
of custody at the termination of the session, were allowed to
obtain verdicts and execution against the returning officer
without further disturbance. The abuse of privilege by the
Commons thus met with its proper corrective.
I cannot altogether defend Holt in this controversy. His
judgment in Ashby vy. White was undoubtedly just. In
the subsequent proceedings, although his courage is to be
admired, it can hardly be denied that he was carried too far
by his Whig zeal against a Tory House of Commons. All
that he did, however, was vigorously defended by that great
constitutional authority, Lord Somers. For above a century
the view of privilege taken by the eleven Judges who differed
from him was implicitly followed, but there has recently f
been a contrary tendency, which became rather rampant
till checked by the interference of the legislaturet and the
superintendence of a court of error. §
* Lives of the Chancellors, iv. ch. exiv.; 6 Parl. Hist. 225.; 14 St. Tr. 695.
+ Lord Ellenborough was the first to countenance the notion of examining
the commitments of the Houses of Parliament by putting an extreme case; —
“If a commitment appeared to be for a contempt of the House of Commons
generally, I would neither in the case of that court nor of any other of the supe-
rior courts inquire further; but if it did not profess to commit for a contempt,
but for some other matter appearing on the return which could by no reasonable
intendment be considered as a contempt of the court committing, but a ground
of commitment palpably and evidently arbitrary, unjust, and contrary to every
principle of positive law and natural justice, we must look at it and act upon
it as justice may require, from whatever court it may profess to have proceeded,”
Burdett v. Abbott, 14 East, 150.
+ 3 Vict. c. ix. § Howard y. Gosset,
Ad oe al
LIFE OF CHIEF JUSTICE HOLT.
CHAPTER XXYV.
CONCLUSION OF THE LIFE OF LORD CHIEF JUSTICE HOLT.
Hott survived this controversy nearly five years, and con-
tinued to discharge his judicial duties with undiminished
ability and credit; but no other case of great permanent
interest arose before him, and he was not in any way mixed
up with the important political events which render the
latter portion of the reign of Queen Anne so interesting.
He adhered steadily to the Whig party, without incurring the
slightest suspicion of partiality while presiding on the bench,
and he steered clear of all the intrigues by which they rose
or fell. From his manly good sense, he must have sadly
lamented their imprudent impeachment of Sacheverell; but
he was snatched away before their ruin was consummated by
this irreparable blunder. Having been summoned to attend
the trial with the other Judges in the House of Lords, —
when it was about to commence he was struck with a mortal
disorder. The last day that he ever sat in court was the
9th of February, 1710, and at three o’clock in the afternoon
of the 5th day of March following he expired, at his house in
Bedford Row*, in the sixty-eighth year of his age.
Notwithstanding the factious excitement which then pre-
vailed, the death of this great magistrate produced a deep
sensation in the public mind, and the regret of the Tories
was embittered by seeing his office given as a reward for the
violence with which Serjeant Parker had assailed Dr. Sache-
yerell and high-church principles. Both parties united in
showing respect for the memory of the departed Chief
Justice. The interment was to take place at Redgrave, in
Suffolk; and not only all the heads of the law, with the
barristers and students, but the principal nobility and gentry
* Then called Bedford Walk. See 2 Lord Raym. 1389.
M 4
167
CHAP,
XXV.
Remainder
of Holt’s
judicial
career.
A.D. 1710,
His death.
His »
funeral,
168
CHAP.
XXV.
a.D. 1710.
REIGN OF QUEEN ANNE.
in London, of all shades of political opinion, attended the
funeral procession several miles from the metropolis. The
admirers of Sacheverell asserted that if Lord Chief Justice
Holt’s life had been spared, and he had attended the pending
trial, he who had boldly withstood either House of Parlia-
ment would have lifted up his voice against this iniquitous
prosecution, and declared that the champion of the Church
had done nothing worthy of death or of bonds; while the
Whigs retorted, that a solemn proceeding instituted to vindi-
cate the principles of the Revolution would have been
warmly countenanced by him who had resisted the tyranny
of James IL., who had been a distinguished member of the
Convention Parliament, whose arguments had mainly con-
tributed to the vote that the throne was vacant, and who,
during his long career, had never swerved from the true
principles of civil and religious liberty. *
After reaching Highgate, the hearse was accompanied only
by the brother of the deceased and a few private friends till
it approached the place of its destination, when it was met
by an immense assemblage from the surrounding country.
The manor of Redgrave is famous in our judicial annals. It
had belonged to Lord Keeper Sir Nicholas Bacon; and
here he had entertained Queen Elizabeth— when, in answer
to her observation that “his house was rather too small for
him,” he replied “ Your Majesty has made me too great
for my house.” From the family of the Bacons it had been
purchased by Chief Justice Holt, and here he spent his
vacations as a private gentleman, mixing familiarly with all
ranks, and particularly with the more humble. All the in-
habitants of this and the adjoining parishes, as if by one
impulse, were now congregated to do honour to him whose
face they were to see no more, but whose virtues they were
to talk of to their children’s children. They cared little
about his political conduct, but they had heard, and they
believed, that he was the greatest Judge that had appeared
* This seems to have been an anticipation of the contest between Whigs and
Tories three years later, when the tragedy of Caro was brought upon the stage.
“The Whigs applauded every line in which Liberty was mentioned, as a satire
on the Tories; and the Tories echoed every clap, to show that the satire was
unfelt.” i
LIFE OF CHIEF JUSTICE HOLT. 169
on the earth since the time of Daniel, and they knew that CHAP.
he was condescending, kind-hearted, and charitable. We are ARS
told that as the body was lowered into the grave prepared
for it, in the chancel of the church at Redgrave, not a dry
eye was to be seen, and the rustic lamentations there uttered
eloquently spoke his praise.
There is now to be admired a magnificent monument of His monu-
white marble, which his brother erected over his grave at a ™™*
cost of 15002, representing him in his judicial robes under a
canopy of state, seated between emblematical figures of
JUSTICE and Mercy, with the following inscription : —
“VES:
Johannis Holt Equitis Aur.
Totius Angliz in banco regio
Per xxi. annos continuos
Capitalis Justiciarii
Gulielmo Regi, Anne Reginz
Consiliarii perpetul,
Libertatis ac lezum Anglicarum
Assertoris, Vindicis, Custodis
Vigilis, acris, et intrepidi.
Rolandus frater unicus et heres
‘Optime de se merito
Posuit.” *
This praise is certainly well deserved. I should have been Holt’s
glad if the epitaph could have truly added that he was an irik
elegant scholar, an enlightened philosopher, a splendid orator, @4science.
or a distinguished writer. Agreeing with Speaker Onslow,
that ‘he was not of very enlarged notions,” I would not add,
“ the better judge, whose business it is to keep strictly to the
plain and known rules of law.” According to a pithy ex-
pression which I have several times heard from the late
Daniel O’Connell, “a judge must be a downright tradesman,”
meaning “ the first and indispensable qualification of a judge
is that he should thoroughly understand his profession ;” and,
if he is at all induced to neglect his judicial duties by the
-allurements of literature and science, or the dangerous am-
bition of universality, it would be much better that he had
taste for nothing more refined than the YEAR-Booxs. But
there is no absolute incompatibility between the profoundest
knowledge of jurisprudence and any degree of culture and
accomplishment. We can conceive that Holt, like Somers,
* Biographia Brit.
170
CHAP.
XXV.
He put an
end to
trials for
witchcraft.
REIGN OF QUEEN ANNE.
might have been President of the Royal Society, and a
member of the Kit-Cat Club. But he seems to have been
wholly unacquainted with the philosophers and wits who
illustrated the reigns of King William and Queen Anne;
and Steele, who celebrates him in the TaTLER, evidently
speaks of Verus only as an idol whom he had seen and
worshipped from a distance. We are left to conjecture as to
his habits; but he must have had benchers and serjeants-at-
law for his companions, and his talk must have been of “ con-
tingent remainders.” Yet he is the first man for a “mere
lawyer” to be found in our annals. Within his own sphere
he shone with unrivalled brightness. Perhaps he was carried
too far by his admiration of the common law of England, as
when he declared that an appeal of murder sued by the heir
of the deceased, to be tried by battle, and excluding the
Crown’s power of pardon, instead of being an odious prose-
cution and aremnant of barbarism, was “a noble remedy,
and a badge of the rights and privileges of an Englishman.”*
His head, likewise, seems to have been a little turned by the
applause he received for his independence, insomuch that he
told Mr. Raymond (afterwards Lord Raymond, and his suc-
cessor) that if the House of Lords had determined against
him in a case of Prohibition which was clearly within their
jurisdiction, he would not have held himself bound by their
judgment}: but, generally speaking, he is to be considered
a consummate jurist; above all prejudice; misled by no pre-
dilection; seeing what the law ought to be, as well as what
it was supposed to be; giving precedent its just weight, and
no more; able to adapt established principles to the new
exigencies of social life; and making us prefer judge-made
law to the crude enactments of the legislature.
He had the merit of effectually repealing the acts against
witchcraft, although they nominally continued on the statute
book to a succeeding reign. Eleven poor creatures were
successively tried before him for this supposed crime, and
the prosecutions were supported by the accustomed evidence
of long fasting, vomiting pins and tenpenny nails, secret teats
* Sarah Stout’s Case, 1 Lord Raym. 557.; 12 Mod, 373. 375.
ft 1 Lord Raym. 545,
LIFE OF CHIEF JUSTICE HOLT.
sucked by imps, devil’s marks, and cures by the sign of the
cross or drawing blood from the sorceress— which had misled
Sir Matthew Hale: but, by Holt’s good sense and tact, in
every instance the imposture was detected to the satisfaction
of the jury, and there was an acquittal. One of the strongest
prima facie cases made out before him was said to have been
that against the woman to whom, many years before, he
himself had pretended to be a wizard, and to whom he had
given the cabalistic charm which was adduced as the chief
proof of her guilt.* At last the Chief Justice effectually
accomplished his object by directing that a prosecutor who
pretended that he had been bewitched should himself be
indicted as an impostor and a cheat. This fellow had sworn
that a spell cast upon him had taken away from him the
power of swallowing, and that he had fasted for ten weeks ;
but the manner in which he had secretly received nourish-
ment was clearly proved. He, nevertheless, made a stout
defence, and numerous witnesses deposed to his expectoration
of pins and his abhorrence of victuals, all which they ascribed
to the malignant influence of the witch. The Judge, having
extracted from a pretended believer in him the answer that
* all the devils in hell could not have helped him to fast so
long,” and haying proved, by cross-examining another witness,
that he had a large stock of pins in his pocket, from which
those supposed to be vomited were taken, summed up with
great acuteness, and left it to the jury to say, not whether the
defendant was bewitched, but whether he was non compos
mentis, or was fully aware of the knavery he was committing,
and’ knowingly wished to impose on mankind? The jury
found a verdict of guwzlty, and, the impostor standing in the
pillory to the satisfaction of the whole country, no female
was ever after in danger of being hanged or burned in Eng-
land for being old, wrinkled, and paralytic.
Holt’s conduct on this occasion will appear the more meri-
torious if we consider that he ran great risk of being de-
nounced as an atheist; and that, to avoid this peril, preceding
Judges, who were not believers in witchcraft, had pandered
to the prejudices of the vulgar. Says Roger North, “If a
* Ante, p. 121. f 14 St. Tr. 639—695.
171
CHAP.
XXV.
172
CHAP.
XXV.
He exposes
hypocri-
tical pre-
tenders to
extraordi-
nary virtue.
REIGN OF QUEEN ANNE.
judge is so clear and open as to declare against that impious
vulgar opinion that the Devil himself has power to torment
and kill innocent children, or that he is pleased to divert
himself with the good people’s cheese, butter, pigs, and geese,
and the like errors of the ignorant and foolish rabble, the
countrymen cry, ‘ This judge hath no religion, for he doth
not believe witches ;’ and so, to show they have some, hang
the poor wretches.” *
Holt seems to have had a high reputation among his con~
temporaries for detecting false pretences of all sorts, and
exposing those who put on an aspect of extraordinary sanctity.
There existed in his time a “society for the suppression of
vice,” composed of men who sought to cover their own bad
characters and pernicious habits by affecting to put the law
in force against others less culpable than themselves. Said
Steele, describing the Chief Justice as VeErus, “ He
never searched after vice, nor spared it when it came before
him ; at the same time, he could see through the hypocrisy
and disguise of those who have no pretence to virtue them-
selves but by their severity to the vicious. In his time there
was a nest of pretenders to justice who happened to be em-
ployed to put things in a method for being examined before
him. These animals were to VERUS as monkeys are to men: so
like, that you can hardly disown them ; but so base, that you
are ashamed of their fraternity. It grew a phrase, ‘ Who
would do justice on the justices?’ I have seen an old trial
where he sat judge on two of them; one was called Trick-
track, the other Tear-shift; one was a learned judge of
sharpers, the other the quickest of all men at finding out a
wench. Trick-track never spared a pickpocket, but was a
companion to cheats. Tear-shift would make compliments
to wenches of quality, but certainly commit poor ones. These
patriots infested the days of VrERus, while they alternately
committed and released each other’s prisoners. But Vrerus
regarded them as criminals, and always looked upon men as
they stood in the eye of justice, without respecting whether
they sat on the bench or stood at the bar.” t
* Life of Guilford, i. 251.
t Tatler, No. x1tv. There must here be an allusion to some well-known
LIFE OF CHIEF JUSTICE HOLT.
To a band of fanatics called the “Prophets” Holt had a
particular antipathy. One of these, named Lacy, being
beaten in atrial before him, complained of injustice. Calamy,
the famous Presbyterian divine, relates that, he having re-
peated these complaints to Holt, “My Lord by this time
was moved; and, setting his hands to his side, cried out,
an honest cause did he call it? J tell you, sir, and you have
full liberty to tell him, or any one else you think fit, from
me, that it was one of the foulest causes I ever had the
hearing of, and that none but an arrant knave would have
had the concern in it that Lacy had; for it was a plain
design, in concert with a notorious jilt, to have cheated the
right heir of a good estate upon his supplying her with money.
If one that could do this may be allowed to set up for a
prophet, the world is come to a fine pass.” *
Holt having, some time after, committed another of this
brotherhood, called John Atkins, to take his trial for seditious
language, the same Lacy called at the Chief Justice’s house
in Bedford Row, and desired to see him. Servant: “ My
Lord is unwell to-day, and cannot see company.” Lacy (in
a very solemn tone): ‘ Acquaint your master that I must
see him, for I bring a message to him from the Lord God.”
The Chief Justice, having ordered Lacy in and demanded
his business, was thus addressed: “ I come to you a prophet
from the Lord God, who has sent me to thee, and would have
thee grant a nolle prosequi for John Atkins, his servant,
whom thou hast sent to prison.” Holt, C. J.: “Thou art a
false prophet, and a lying knave. If the Lord God had sent
thee, it would have been to the Attorney General, for he
knows that it belongeth not to the Chief Justice to grant a
nolle prosequi: but I, as Chief Justice, can grant a warrant to
commit thee to bear him company.” This was immediately
done, and both prophets were convicted and punished.
It is observable that, even under Holt, criminal trials were
not always conducted with the regularity and forbearance
“trading justices,” belonging to a class who then and for many years after in-
fested the metropolis, till stipendiary magistrates were at length established at
Bow Street; but I have in vain endeavoured to trace in “ Magazines” and
“ Trials” the individuals whom Holt is here celebrated for having exposed and
punished.
* Rutt’s Life of Calamy, ii. 111, 112.
His
detection
of a false
prophet.
174
CHAP.
XXV.
His prac-
tice of in-
terrogating
prisoners
on trial.
His sup-
posed opi-
nion as to
the ille-
gality of
employing
the military
to put down
civil dis-
turbances,
REIGN OF QUEEN ANNE.
which we now admire. For the purpose of obtaining a convic-
tion when he believed the charge to be well founded, he was
not very scrupulous as to the means he employed. To the end
of his life he persevered in what we call “ the French system ”
of interrogating the prisoner during the trial, for the purpose
of obtaining a fatal admission from him, or involving him in
a contradiction. Thus in the case, which made a noise all
over Europe, of HAAGEN SWENDSEN, indicted capitally for
forcibly carrying off an heiress and marrying her, the prisoner
having asserted that, before he carried her off, she had squeezed
his hand and kissed him, the Chief Justice asked “If she
was consenting, why then did you force her to the tavern
and marry her by a parson you had provided for that pur-
pose?” The prisoner answered, “She married me with as
much freedom as there could be in woman.” But he was
convicted and executed.*
Contrary to the doctrine which we hold, that soldiers are
armed citizens, and may lawfully, like other citizens, by the
command of a magistrate, and on an occasion of extremity
even without the command of a magistrate, interpose to pre-
vent the commission of a crime and to preserve or restore
public tranquillity, Holt is said to have held that the military
could only be lawfully employed against a foreign enemy or
in quelling open rebellion. But this opinion of his is not to
be found laid down on any trial, or recorded in any book of
authority, and rests on the following gossiping story: “* A
party of the guards was ordered from Whitehall to put down
a dangerous riot which had arisen in Holborn, from the
practice of kidnapping, then carried to a great extent ; and at
the same time an officer was despatched to inform the Chief
Justice of what was doing, and to desire that he would send
some of his people to attend and countenance the soldiers.
‘ Suppose, sir,’ said Holt, ‘let me suppose the populace should
not disperse on your appearance, or at your command?’
‘Our orders are then to fire upon them.’ ‘Then mark, sir,
what I say; if there should be a man killed in consequence
of such orders, and you are tried before me for the murder, I
* 14 St. Tr. 559—638.
LIFE OF CHIEF JUSTICE HOLT.
will take care that you and every soldier in your party shall
be hanged. Return to those who sent you, and tell them
that no officer of mine shall accompany soldiers; the laws of
this kingdom are not to be executed by the sword. This
affair belongs to the civil power, and soldiers have nothing to
do here.’ Then, ordering his tipstaves and some constables
to accompany him, he hastened to the scene of tumult, and
the populace, on his assurance that justice should be done on
the objects of their indignation, dispersed in a peaceable
manner.” * Holt certainly did, in his proper person, disperse
a riotous assembly in Holborn, with the assistance of a band
of constables, but the dialogue between him and the officer of
the guards I consider apocryphal. From the earliest times
till the beginning of the 18th century, the Chief Justice of
the King’s Bench had been in the habit of taking an active
part in putting down disturbances.t In the Plantagenet
reigns, when there were no standing armies or regular troops
to be employed for this purpose, I find that he was not un-
frequently sent into distant counties with a commission of
array, and that he commanded in the field the forces so raised.
Holt may very properly have expressed jealousy of the wanton
interference of the military, but there is an extreme impro-
bability that he should in such terms have condemned the
employment, for the prevention of crime, of a portion of the
posse comitatus wearing red coats instead of blue, and armed
with muskets instead of batons.
Holt continued, like preceding Chief Justices, to act out
of court as a magistrate, in taking preliminary examinations
against parties accused, and committing them for trial. Re-
cognizances were likewise entered into before him. In the
Journal of the second Karl of Clarendon we find the following
entry :—“ 15th August, 1690. About six in the evening, my
Lord Lucas went with me to my Lord Chief Justice Holt’s.
My brother came just from Tunbridge, and went with me;
my wife stayed in the coach. My Lord Chief Justice pre-
sently took my recognizance to appear in the King’s Bench
* Examiner, vol. iv. No. 14.; Notes to Tatler, ed. 1806, vol. i. p. 147.
t It is likewise a curious fact that the judges of the King’s Bench acted as
' police magistrates; taking preliminary examinations of witnesses, and commit-
ting criminals for trial.
175
CHAP.
XXV.
176
CHAP.
XXV.
His trial at
bar with
the Crown.
Trin.
Holt as an
author.
REIGN OF QUEEN ANNE.
the first day of the next term; and in the meantime to give
my word and honour not to disturb the Government, and to
keep the peace. I said I agreed to all, but to the last clause ;
which seemed a very odd one, and I could say nothing to it.
At Lord Lucas’s desire, I spoke to my Lord Chief Justice
about Lord Forbes’s bail; who could get none but gentlemen
from Ireland. The Lord Chief Justice was very snappish.” *
While Chief Justice, he had to fight a battle with the
Crown, as well as with the Lords and with the Commons.
The great sinecure office of Chief Clerk of the Court of
King’s Bench, now compensated by a pension of 90002. a
year, falling vacant, Sir John Holt granted it to his brother
Roland, and the question arose whether the patronage of it
belonged to the Chief Justice or to the King? This came on
to be decided by a trial at bar before the three Puisne Judges
and a jury. A chair was placed on the floor of the Court
for Lord Chief Justice Holt, on which he sat wneovered near
his counsel. It was proved that the Chief Justices of the
King’s Bench had appointed to the office from the earliest
times, till a patent was granted irregularly by Charles II. to
his natural son the Duke of Grafton; and there was a verdict
against the Crown, which was confirmed, on appeal, by the
House of Lords.t+
Holt appears in the catalogue of our judicial authors, but
does not add to its faint lustre. In the year 1708, he edited
a collection of Crown cases from the MS. of Chief Justice
Kelynge, adding three judgments of his own, all of which
are upon the law of murder and manslaughter.{ His notice
of them in his preface rather shows that he was an instance
of a great English lawyer being utterly unacquainted with
English composition: “The three modern cases,” says he,
“are conceived to be of some use, therefore are thought fit to
be published ; and if they shall be found to be of any benefit,
it’s what is desired by the publisher thereof.”
I am much grieved that we know so little of Holt in
private life. He had no chronicler like Roger North, he has
* Vol. li. p. 328, 329.
+ Shower’s Parliamentary Cases, 111.; Skinner, 354.
{ Rex y. Lisle, Rex vy. Plumer, Rex v. Mawgridge.
LIFE OF CHIEF JUSTICE HOLT.
left no diary of his own, and there is not even a scrap of a
letter of his extant. We must particularly regret that we
have so few of his sayings handed down to us, for, judging
from his reprimand of the “ false prophet,” they must have
been very racy, if sometimes a little irreverent.
He no doubt derived much satisfaction from the able dis-
charge of his official duties, and the high credit which he
thereby acquired; but he had no domestic bliss. His wife,
Anne, the daughter of Sir John Cropley, a lady of strict
virtue, was a shrew, and they lived together on the worst
possible terms. She fell into ill health, and he was in high
hopes of getting rid of her. To plague her husband, she in-
sisted on consulting a physician with whom he had a personal
quarrel, and who, for this reason, is said to have taken
peculiar pains in curing her. She certainly survived him
several years ; and Dr. Arbuthnot, afterwards writing to Swift
an account of his attendance on Gay the poet, said, “ I took
the same pleasure in saving him as Radcliffe did in saving my
Lord Chief Justice Holt’s wife, whom he attended out of spite
to her husband, who wished her dead.” It is to be feared that
although he thought he could define by law the privileges of
the Lords and of the Commons, he was obliged to confess
that his wife was the sole judge of her own privileges, and
that when she pronounced him in contempt he was entirely
without remedy. He established against the Crown his
right to appoint the chief clerk of his court, but the nomi-
nation of footmen in his family, as well as of housemaids,
rested entirely with his wife.* Nevertheless, he left her by
his will a jointure of 7002. a year.
She brought him no children, and the whole of his great
possessions went to his brother Roland, a descendant of whom
is still Lord of Redgrave.t
* Some maliciously accounted for his unwearied devotion to business by his dis-
like of the society of Lady Holt, — in the same manner as, in the time of Judge
Gilbert, who wrote so many excellent Jaw books shut up in his chambers in
Serjeants’ Inn, it was said that the public was indebted for them to his
scolding wife.
+ George St. Vincent Wilson, Esq., great-great-grandson of Roland.
VOL. II. N
177
CHAP.
XXV.
He was
married to
a shrew.
{
178 LIFE OF CHIEF JUSTICE HOLT.
CHAP. I shall conclude this memoir in the words of the writer who
XXV. first collected ‘materials for the Life of Holt, and who thus
Conclusion, gives him characteristic praise: “His Lordship was always
remarkable in nobly asserting, and as vigorously supporting,
the rights and liberties of the subject, to which he paid the
greatest regard upon all occasions, and never suffered the
least reflection tending to depreciate them to pass uncen-
sured.” *
* Biographia Brit. “ Sir John Holt.”
LIFE OF CHIEF JUSTICE PARKER,
CHAPTER XXVI.
CHIEF JUSTICES FROM LORD HOLT TILL THE APPOINTMENT OF
SiR DUDLEY RYDER.
On the death of Chief Justite Holt, Lord Godolphin, the
Prime Minister, resolved to give his place to Serjeant Parker,
who, as one of the managers for the House of Commons in
the impeachment of Sacheverell, had greatly distinguished
himself. The Attorney and Solicitor General, Sir James
Montagu and Sir Robert Eyre, like all sensible men, dis-
approving of the prosecution, had been deficient in zeal when
they assailed the libeller of VoLPONE; and neither of them
had such political importance as to enable them to vindicate a
claim to the promotion,—which would then have been pecu-
liarly seasonable, as the Whigs had fallen into deep disgrace,
and a change of administration was evidently at hand. The
proposed appointment was very disagreeable to the Queen.
Having attended Sacheverell’s trial, she had been much
shocked by the freedem with which Serjeant Parker had
ridiculed the divine right of kings and other dogmas of the
High Church party, and still more by the acrimony with
which he had inveighed against “ the Doctor” himself, whom
she loved in her heart for his principles, secular as well as
religious, and above all for his personal abuse of those minis-
ters with whom she was now so much disgusted. But being
warned by Harley, who already, through the agency of Mrs.
Masham, was her confidential adviser, that the time for a
rupture with the Whigs was not yet quite arrived, she gave
her reluctant consent.
Accordingly, on the 13th of March, 1710, Str THomas
PaRKER was installed as Chief Justice of the Court of King’s
Bench, and continued to fill the office for the four remaining
years of Queen Anne and the first four years of the succeed-
nN 2
179
CHAP.
XXVI.
AovAa L7TOS
Sir Thomas
Parker,
afterwards
Earl of
Maccles-
field, Chief
Justice.
180
CIIAP.
XXVI.
‘A.D. aii 0
—I171&,
His life
already
written,
April,
1718.
Vacancy in
the office
of Chief
Justice of
the King’s
Bench on
LIFE OF CHIEF JUSTICE PARKER.
ing reign. But tracing his eventful career is a by-gone
pleasure, for he afterwards held the great seal of England
—till he was deprived of it on being convicted of judicial
corruption. I must, therefore, refer those who would know
the particulars of his extraordinary rise, and of his lament-
able fall, to the “ Life of Lord Chancellor Macclesfield,”
which I have already given to the world.*
However, I cannot refrain from expressing my regret that
some connections of his family, ashamed of his having been
the son of a village lawyer, — of his having been at Newport
school, along with Tom Withers the shoemaker, — of his
having himself practised as an attorney, and of his having
raised himself by his gigantic vigour of intellect, would fain
represent him as having enjoyed all the advantages of high
birth and regular education, —as having been destined to
the bar from his childhood, and as having reached his high
honours in the usual routine of professional progress. In
overlooking well-established facts respecting him, they surely
lessen the merit which belongs to him while he was ascending
to eminence, —and they deprive him of the mitigation of
early penury for the disreputable practices into which he was
led by his excessive love of riches. If I were to re-write his
life, I must substantially adhere to my former narrative, —
which if he could peruse he would not repudiate; for he
never pretended to an aristocratical origin, and he was
delighted, when Chief Justice of England, to spend an even-
ing with an old schoolfellow who had thrown aside a leathern
apron, and whose hands were hard with rosin. f
When Parker had gained the favour of George i) and, by
intrigues with the rianowecitas who adtcsipanted that sove-
reign to England, had subverted the influence of Lord Cowper,
another Chief Justice of the King’s Bench was to be provided.
The new Chancellor was determined that he would not com-
mit the blunder of raising up to high office a formidable rival,
* Lives of the Chancellors, vol. iv. eh. exxi.
+ In a new edition of my Lives of the Chancellors I have pointed out his
pedigree from the Parkers of Park Hall, and I have shown that he certainly
had been entered of Trinity College, Cambridge; but the evidence is strength-
ened as to the low condition of his father, and the obstacles he had to surmount
in the early part of his career.
LIFE OF CHIEF JUSTICE PRATT.
by whom he might in turn be superseded. He therefore fixed
upon a dull lawyer, of decent character, to whom nothing
positive could be objected, and who, — unfit to be placed in
the House of Lords, — without aspiring to the “ marble
chair,” must ever remain his humble supporter.
I am afraid that the taste of my readers may be a little
corrupted by the exciting atrocities of the Chief Justices of
the seventeenth century, and that some dismay may be felt
upon the introduction of a man who is unredeemed from in-
sipidity by the commission of a single great crime. I own
that such company is tiresome, and we shall speedily take
leave of him. But I must present a little sketch of this
worthy person, who for seven years was Chief Justice of
England.
Sir JoHN Prarvr’s great distinction is, that he was the
father of Lorp CAampEN. He was descended, however,
from a respectable family long settled at Careswell Priory,
near Collumpton, in the county of Devon. He studied at
Oxford, and was elected a fellow of Wadham College. Al-
though an eldest son, it was necessary that he should work
for his bread, as the estate which had remained many genera-
tions in his name had been alienated by his spendthrift grand-
father. He was, therefore, called to the bar in the end of
the reign of Charles II, and, by plodding diligence, got into
respectable business. In the year 1700 he took the degree
of Serjeant-at-law, and he was twice returned to the House
of Commons as member for Midhurst. But he had no talents
for public speaking, and in the Parliamentary Debates his
name is not once mentioned. He was a good Whig under
the patronage of Lord Cowper, who, while disposed to pro-
mote him, found him quite unfit for the situation of At-
torney or Solicitor General. His practice in the Court of
Common Pleas, however, was considerable, for he was well
versed in his profession; and, although reckoned heavy else-
where, he there went by the name of the “ lively Serjeant.”
Having remained true to his party during the four years
of Tory rule,—on the accession of George I. the desire to
do something for his advancement was strengthened. Lord
nN 3
18]
CHAR.
XX VI,
his promo-
tion to be
Chancellor,
Sir John
Pratt Chief
Justice,
His origin
and pro-
gress at the
bar,
182
CHAP.
XXVI.
A.p. 1714
—1718.
He is made
a Puisne
Judge,
Chief Jus-
tice of the
King’s
Bench,
His most
celebrated
judgment.
REIGN OF GEORGE I.
Cowper, being restored to the office of Chancellor, in his letter
to George III. respecting the state of the bench in West-
minster Hall, objected to the continuance of the two bro-
thers Sir Littleton Powys and Sir Thomas Powys as Judges
of the King’s Bench, particularly Sir Thomas, whom he de-
nounces as * zealously instrumental in the measures which
ruined James II., and as still devoted to the Pretender,”
and added, ‘If either of these be removed, I humbly re-
commend Serjeant Pratt, whom the Chief Justice Parker,
and I believe every one that knows him, will approve.” Ac-
cordingly Sir Thomas Powys was superseded, and Serjeant
Pratt, being knighted, was made a Puisne Judge of the King’s
Bench in his stead.
He sat four years there as a colleague of Parker, who,
having during this time had full proof of his docility, in-
offensiveness, and moderate sufficiency for the duties of the
office, when about to become Lord Chancellor resolved to
appoint him his successor. Asa step to this distinction, in
the short interval between the resignation of the great seal
by Lord Cowper and the delivery of it to Lord Macclesfield,
it was put into commission, and Pratt was made a Lord Com-
missioner.
He took his seat as Lord Chief Justice of the King’s Bench
on the 15th of May, 1718.
His panegyrists (for a Chief Justice is sure to have pane-
gyrists) lauded him — not as a great real property lawyer, or
a great commercial lawyer, or a great crown lawyer, but as “ A
GREAT SESSIONS LAWYER :” and in looking through Strange’s
Reports, Lord Raymond’s Reports, Burrow’s Reports, and
Modern Reports, in which his decisions are recorded, it is
curious to observe how many of them turn upon questions
of poor-rates and parochial settlement — then a new field of
litigation. One, and one only, of these judgments is still in-
teresting, from having been married to immortal verse.
The widow of a foreigner, being left destitute on the death
of her husband, who had no parochial settlement in England,
was removed from a parish in London to the parish in the
country in which she was born; but this parish appealed to
the quarter sessions against the order of removal, on the
LIFE OF CHIEF JUSTICE PRATT. 183
Pa
ground that a maiden settlement is for ever lost by marriage. CHAP.
ae te . * XXVI.
The justices at sessions, being much puzzled, referred the case
to the Court of King’s Bench, and the decision there is thus , ,, 1713
recorded by Sir James Burrow in his Reports : — —1722.
« A woman having a settlement
Married a man with none;
The question was, he being dead,
If what she had was gone.
* Quoth Srr Joun Prart, the settlement
Suspended did remain,
Living the husband ; but him dead,
It doth revive again.
(Chorus of Puisne Judges.)
“ Living the husband; but him dead,
It doth revive again.” *
This decision seems to have created a great sensation in His doc-
Westminster Hall; but the glory which it conferred on Chief ‘ine of
suspension
Justice Pratt soon passed away, for, as far as the suspension overturned.
was concerned “ living the husband,” it was reversed by his
successor, Chief Justice Ryder, who determined, with his
puisnies, that the maiden settlement continues after the mar-
riage till a new.settlement is gained; and that although the
wife cannot be separated from the husband by an order of
removal, if he, having no settlement, has deserted her, she
may be sent to her parish for relief, even in his lifetime : —
« A woman having a settlement,
Married a man with none:
He flies and leaves her destitute ;
What then is to be done?
“ Quoth RyprEr, the Chief Justice,
‘In spite of Sir Joun Prart,
You'll send her to the parish
In which she was a brat.
« Suspension of a settlement
Is not to be maintained ;
That which she had by birth subsists
Until another’s gained.’
( Chorus of Puisne Judges. )
*« That which she had by birth subsists
Until another's gained.” ¢
Chief Justice Pratt acquired considerable credit by his a. 1722
; Chief Jus-
firm conduct in the famous controversy between Dr. Bentley PRES ©
* Burr. Sett. Cas. 124.; Burn’s Just., tit. “ Settlement.”
{ St. John’s, Wapping, v. St. Botolph’s, Bishopgate, Burr. 8. C.367.; 2 Bott. 109.
n 4
184
CHAP.
XXXVI.
AUDield Aes
conduct in
Dr. Bent-
ley’s Case.
A.b. 1723,
REIGN OF GEORGE If.
and the University of Cambridge. When, on the application
_ of this very learned and very litigious scholar, the Court of
King’s Bench had granted an attachment against his enemy,
Dr. Colbateh, the author of Jus Academicum, for a contempt
of their jurisdiction, Sir Robert Walpole and Lord Maccles-
field attempted to exercise their influence in his favour.
“ But,” says Bishop Monk, “the patronage of these great
ministers was not calculated to render the unfortunate divine
any real service. The distinguished Judge who presided on
the bench entertained a high notion of the dignity of his
court, and the necessity of repressing all attempts to dis-
parage or question its authority. He had, also, too just an
opinion of the sanctity of the judicial character not to be
jealous of the interference of persons in power with the
administration of justice. He heard, therefore, the repre-
sentations of the Cabinet Ministers without the least dis-
position to attend to them; insomuch that the Premier ac-
counted for his inflexibility by observing that ‘Pratt had
got to the top of his preferment, and was therefore refractory
and not to be governed by them.’” According to our no-
tions, we should rather blame the Chief Justice for suffering
interviews with a party in a pending proceeding, for we read
with surprise this mitigation of his supposed sternness:
However, when Doctor Colbatch, by advice of the Lord
Chancellor, waited on the Chief Justice at his house in
Ormond Street, he behaved to him with considerable candour
and mildness; he declared, indeed, that he viewed the
offence in a serious light, but assured him that he would take
no advantage of his having privately acknowledged himself
author of the book.”—The writer of Jus Academicum, for
having said, in allusion to the Court of King’s Bench granting
writs of mandamus and prohibition against the University of
Cambridge, “that they who intend to subvert the laws and
liberties of any nation commonly begin with the privileges
and immunities of the Universities,” was sentenced by Chief
Justice Pratt to be imprisoned, fined 502, and bound over
to his good behayiour for a twelvemonth, *
Then followed Bentley’s application for a mandamus to
* Monk’s Life of Bentley, vol. ii. ch. xvi. p. 185,
LIFE OF CHIEF JUSTICE PRATT.
the University of Cambridge to restore him to his academical
degrees, of which he had been deprived without having been
duly summoned or heard. After the case had been argued
several successive terms, at prodigious length, Chief Justice
Pratt said, —
“ This is a case of great consequence, not only to the gentleman
who is deprived, but likewise as it will affect all the members of
the University. It is the glory and happiness of our excellent
constitution, that, to prevent any injustice, no man is to be con-
cluded by the first judgment ; but that, if he apprehends himself to
be aggrieved, he has another court to which he can resort for
relief : with this view, the law furnishes him with appeals and
with writs of error; and in this particular case, lest the party
complaining should be remediless, it has become absolutely ne-
cessary for this Court to order the University to lay before us
the state of their proceedings against him, so that if they have
erred he may have right done to him, or if they have acted ac-
cording to the rules of law, their acts may be confirmed. The
University ought not to consider it any diminution of their
honour, that their proceedings are examinable in a superior court.
For my own part I am sure it is a consideration of great comfort
to me, that, if I do err, my judgment is not conclusive, and my
mistake may be rectified. As to Dr. Bentley’s behaviour when
‘served with process out of the Vice-Chancellor’s Court, I must
say that it was very indecent, and I can tell, if he had said as
much of our process, we should have laid him by the heels for it.
But however reprehensible it might be for him to say of the Vice-
Chancellor, stulté egit, such words will not justify a suspension or
deprivation of academical degrees. Be these matters how they
will, surely he could not be deprived without notice. Our law
adopts the first rule of natural justice, that no man shall be con-
demned till he has been heard or had an opportunity of being
heard in his defence. The Vice-Chancellor’s authority ought to
be supported for the sake of keeping peace within the University,
but then he must act according to law, which I do not think he
has done in this instance.”
The Puisnies concurred, one of them citing a precedent of
high authority — Adam and Eve’s case before God himself.
Fortescue, J.: “ Kven God himself did not pass sentence
upon Adam before he was called upon to make his defence.
‘Adam (says God), where art thou? Hast thou eaten of
185
CHAP.
XXVI.
A.D, 1723,
186
CHAP.
XXXVI,
A. Dy 1722,
L723.
He tries
Layer for
high trea-
son,
REIGN OF GEORGE I.
the tree whereof I commanded thee that thou shouldst not
eat?’ And the same question was put to Eve also.”—A
peremptory mandamus was granted.*
There was only one state trial before Chief Justice Pratt,
that of Christopher Layer, prosecuted for having conspired
to bring in the Pretender by means of a French invasion.
On this occasion there was exhibited from the bench a harsh-
ness which reminds us much more of ante-Revolution judges
than of the mild demeanour of Holt. The prisoner, a gen-
tleman of birth and education, having been brought to the
bar at his arraignment loaded with irons, said, —
“* My Lord, I hope I shall have these chains taken off, that I
may have the free use of that reason and understanding which
God hath given me. They have brought upon me the strangury
to a degree that is very painful; and if I am told truly that your
Lordship is afflicted with that distemper, you will pity me. I
hope that these chains shall be taken off in the first place, and then
I hope that I shall have a fair trial.” Pratt, C.J.: “ As to the
chains you complain of, it must be left to those to whom the
custody of you is committed by law, to take care that you may not
make your escape; when you come to your trial, then your chains
may be taken off.” Sir Robert Raymond, A. G.: “I am sure
nothing is intended but that he should have a fair trial; but to
complain here of chains, carries with it a reflection of cruelty,
and we know what effect these things may have abroad. The
prisoner hath been kept as all persons in his circumstances are
when they have been attempting to make an escape.” Pratt, C. J.:
*“ Alas! Ifthere hath been an attempt to escape, there can be no
pretence to complain of hardship; he that hath attempted an
escape once, ought to be secured in such manner as to prevent his
escaping a second time.” Str Philip Yorke, S. G.: “It is well
known that when this gentleman was in the custody of a mes-
senger, he not only made an attempt to escape, but actually escaped
out of a window, two pair of stairs high. It does not become the
candour of a person in the prisoner’s circumstances to aggravate
and make such misrepresentation of the usage he has received.”
Gentleman Gaoler of the Tower of London: “ My Lord, he never
has attempted to escape since he was in my custody.” Mr.
Hungerford, counsel for the prisoner: “ My Lord, I beg to be
indulged a few words: that he is in chains now is demonstrable,
* 1 Strange, 557.; 2 Lord Raymond, 1334,
LIFE OF CHIEF JUSTICE PRATT.
and he hath told me they are so grievous that he cannot sleep but
in one posture—on his back. Your Lordship may observe that the
Gentleman Gaoler, who seems to execute his authority with all
humanity, now helps to hold up his chains, otherwise he could not
stand. I believe I might challenge them to give an instance
where any prisoner was shackled with irons in the Tower before
Mr. Layer. His Majesty’s prisoners in the 'Tower are such
strangers to this usage, that the very materials were wanting there ;
these fetters were sent for from Newgate, and I hope they will be
sent back thither. Your Lordship hath hinted it as an indulgence
intended to him when he comes to his trial, that his irons shall be
taken off; but I humbly insist upon it, that by law he ought not
to be called upon even to plead, till he may exercise his mental
faculties free from bodily torture.” Pratt, C. J.:; “This is nothing
but to captivate the people. What signifies his chains being taken
off this minute, and afterwards put op again the next?” Mr.
Hungerford: “ We might humbly apprehend and hope, my Lord,
that the better to prepare himself for his trial, he may continue
without his chains till after that time.” Pratt, C. J.: “I am of
another opinion ; and if we should order his chains to be taken off,
and he run away, I do not know but we are guilty of his escape.
He shall have a fair and a just trial, but to make objections in
matters of this nature is to cast a reflection on the Court for not
doing that which is not in their power to do.”
The prisoner was undoubtedly guilty, but the harsh manner
in which his trial was conducted throughout excited a strong
sympathy in his favour: he was regarded as a martyr; and
his head being stuck upon Temple Bar, it was carried off,
and long preserved as a relic. *
Iam not aware of Pratt coming upon the political stage
on any other occasion, except when he was consulted with
the other Judges upon the questions which arose out of the
disputes between George I. and the Prince of Wales (after-
wards George II.) respecting the power of the reigning
King, by his prerogative, to regulate the education and
marriages of his grandchildren. He spoke immediately after
Baron Montagu, who had no better reasons to give in favour
of the King than the discipline among the patriarchs, who
educated and governed all their grandchildren and great~
* 16 St. Tr. 94-324,
187
CHAP.
XXXVI.
ap. 1723
—1725.
His opi-
nion re-
specting
the power
of the
King in
the mar-
riage and
education
of the royal
family,
188
CHAP.
XXVI.
A.D. 1723
—1725.
His death.
REIGN OF GEORGE I.
grandchildren, and that the King is called “ parens patriz et
custos regni et pater-familias totius regni.” Pratt tried to
fortify himself by modern precedents : —
“ The regulation of marriages in the royal family,” said he, “is
an undoubted prerogative of the Crown, proved by all the argu-
ments the nature of the thing is capable of, constantly claimed,
enjoyed, and submitted to, the contrary being ever taken to be a
great offence and sometimes thought high treason. The Countess
of Shrewsbury’s case, 12 Rep. 94., is very strong. The Duke of
Suffolk’s attempt was held high treason, proving that, at all events,
it is an offence of magnitude. - The case of the Princess of Orange
in Charles II.’s time is very material. The King made the match,
and the Duke of York her father was against it. The Princess
of Modena wished to prevent it; but the King’s answer was,
‘it is by my consent, and none may gainsay it. Here is the
claim of prerogative against the opinion and wishes of the father.
Now as to the education of the children and grandchildren of the
royal family, that is a natural and necessary consequence,—if the
crown has the marriage of the royal family, it hath the care of
their education. If not educated well, they cannot be married
well. The King having the end, should havethe means; he must
take care of their persons that they may not be disposed of to the
prejudice of the nation. This prerogative never was disputed by
any of the royal family, and many have been prosecuted for the
breach of it. Nota few of the distractions and confusions which
attended the differences between the Houses of York and Lan-
caster arose from the marriages and education of the children of the
blood royal not being regulated by the sovereign on the throne.” *
When Lord Macclesfield, on his impeachment for corrup-
tion, was deprived of the great seal, there was a general ex-
pectation that it would have been transferred to the Chief
Justice of the King’s Bench, who, without being an intriguer,
like his predecessor, was well esteemed both by the King and
the Prime Minister, and probably would have been preferred
by them to Sir Peter King, the Chief Justice of the Common
Pleas; but, while the impeachment was pending, Sir John
Pratt was struck with a mortal disorder, of which he died at
his house in Ormond Street, on Wednesday, the 24th of
February, 1725.
if he was not very eminent for his talents or public ser-
* 15 St. Tr. 1216.
LIFE OF CHIEF JUSTICE RAYMOND.
vices, it should be known to his credit that no graver charge
was ever brought against him than that, “ being the proprietor
of Begeham Priory, in Kent, he dismantled the church, the
roof of which was still standing, and laid out the site of it
in a pleasure-garden, with flowers and gravel walks.” *
Having had an immense number of children by two wives,
and having been careless about his pecuniary affairs, he left
his family nearly destitute ; but if he had been favoured with
a glimpse into futurity he might have seen a son of his Lord
High Chancellor, and his grandson and great grandson mar-
quesses and knights of the garter.
Sir John Pratt was succeeded in the office of Chief Justice
of the King’s Bench by a man very distinguished in his day,
who was himself raised to the peerage, and was looked upon
as the founder of a patrician house, but whose line soon
became extinct, and who is now little known beyond the pre-
cincts of Westminster Hall.
Although Lorp RayMonD was said to be descended from
the Crusader of his name celebrated by Tasso, his branch of
the family had fallen into great decay, and his grandfather
was a trader in the City of London. His father, however,
studied the law, had considerable success at the bar, and in
the reign of Charles II., by the combination of extraordinary
learning and extraordinary servility, was made a Puisne
Judge, first of the Common Pleas, and then of the King’s
Bench. This unprincipled Judge showed peculiar zeal in the
famous Quo WARRANTO prosecution for subverting the liber-
ties of the City of London. Chief Justice Saunders being
then at death’s door, Sir Thomas Raymond loudly declared
that * the Court was unanimously in favour of the Crown on
all the points which had been discussed ;” and he might pro-
bably have succeeded in his object if he had not been rivalled
by Jeffreys, whose splendour of infamy dimmed every lesser
noxious light which might otherwise have attracted the ex-
ecrations of mankind. The aspiring Puisne himself died
(some said from vexation at his disappointment) while still
a young man. If he had survived, he no doubt would have
* Hasted's Kent, ii. p. 380,
189
CHAE;
XXVI.
A.D. Li foe
Lord Ray-
mond.
Son of Sir
Thomas
Raymond,
A.D. 1683,
190
CHAP,
XXVI.
A.D. 1683,
He is called
to the bar.
His emi-
nence as a
reporter.
A.D. 1702.
Witcheraft
put an end
to by the
prosecu-
tion of an
impostor.
LIFE OF CHIEF JUSTICE RAYMOND.
been tried in the capacity of Chief Justice by James IL.; and,
if there had been no limit to his servility, he might have con-
tinued to preside till the King’s power to dispense with all
statutes, and to enforce martial law in time of peace, after
being established by judicial decision, was upset by physical
force. He left behind him a high reputation as a lawyer,
although a very bad one as a politician; and a volume of Re-
ports compiled by him proves that he was a complete master
of all the wiles of his profession.*
At his death, his only son Robert, the subject of this little
memoir, was only ten years old, and so escaped the contami-
nation of his training. The lad naturally called himself a
Tory, and he continued inclined to high prerogative notions
till he saw reason to change his side; but through life he
maintained a fair character for honour and independence.
I find no more authentic account of his education than the
inscription on his tomb, which represents him as having been
early imbued with a love of classical learning, and as having
devoted himself with extraordinary assiduity eed success to a
scientific study of jurisprudence.
He was called to the bar in the year 1694, being then
an accomplished lawyer, and he soon got into extensive
practice.
His professional prosperity he himself ascribed to his habit
of reporting. He was determined to rival, and he greatly
excelled, the fame of his father in this line. Not only when
he was a student, but when called to the bar, when Attorney
General, and when Chief Justice, he wrote an account of all
the most remarkable decisions in the Court of King’s Bench,
giving the arguments of counsel and the opinions of the
judges with admirable point, vigour, and exactness. f
The first considerable case in which he appeared as counsel
was the prosecution, before Lord Holt, of Hathaway the im-
postor, who pretended that, being bewitched, and having fasted
forty days, he vomited pins, and who, under pretence of dis-
enchanting himself, had assaulted and drawn blood from the
* He died while on the circuit in the spring of 1683, in the 50th year of his
age.
+ His published ee extend from Easter, 6 Will. & Mary, to Trinity,
5 & 6 Geo. II. i
LIFE OF CHIEF JUSTICE RAYMOND.
supposed witch. Mr. Raymond was mainly instrumental in
obtaining the conviction of this miscreant, which opened the
eyes of the public to the frauds and follies of witchcraft,
although, during the seventeenth century, they had strangely
grown with advancing knowledge, to the unspeakable disgrace
of legislation and of the administration of criminal justice in
England.*
He likewise assisted in prosecuting the famous Beau Field-
ing for bigamy in marrying the Duchess of Cleveland, his
former wife being then living. The case turned chiefly upon
the validity of the first marriage by a Roman Catholic priest
in a private room, and Mr. Raymond’s argument to prove
its validity prevailed. +
Being much connected with the Jacobites, he was employed
as counsel for David Lindsay, member of a distinguished
family in Scotland, who, having gone from that country to
* The severest statutes against witchcraft were passed after Lord Bacon
had published the most valuable of his immortal works, and they were blindly
acted upon in the age of Milton and Dryden. Mr. Raymond had drawn the
indictment against Hathaway. A specimen of his legal Latinity taken from it
may amuse the reader: —“ Quod quidem Richardus Hathaway nuper, &c.,
laborer, existens persona malor’ nomenis et fama et impostor, et machinans et
malitiose intendens quandam Saram Morduck ux’ cujusdam Edwardi Murdock,
Waterman, foeminam per totum vita sue tempus existen’ honestam et piam, et
non Sagam (Anglice, a witch), nee Magiam ( Anglice, witchcraft), Incantamen-
tum (Anglice, enchantment), Fascinationem (Anglice, sorcery), unquam exer-
cen’, in periculo vitze suz amissionis inducere 11 die Febr. &c. in presentia et
auditu diversorum personarum, falso, militicse, diobolice et scient’, et ut falsus
impostor, pretenebat et asserebat seipsum per eand’ Saram fuisse fascinatum
(Anglice, bewitched) et occasione fascination’ illius non posse edere et per mag-
num tempus scil’ per tempus decem septeminar’ jejunasse, ac diversis morbis
affici, et quod ipse per ipsius Richardi extractionem sanguinis ejusd’ Sare per
sculpationem a pretens’ fascinatione pred’ liberat’ foret; quodque predict’
Richardus, vi et armis eandem Saram scalpsit, et sanguinem ipsius Sare per
scalption’ ill’ extraxit, &c., ubi revera et in facto pred, Richard’ nunquam fas-
cinatus fuit et nunquam jejunasset per spatium pred’ nec per aliquod magnum
tempus,” &c. &c.
The sentence will give pleasure. After saying that he is to pay a fine of 100
marks, it thus proceeds: — “ Et quod stabit in et super pilloriam Die Sabbati
proximo in magis publico et aperto loco in Southwarke, inter horam decimam
et horam tertiam ejusdem diei per spatium duarum horarum cum papiro super
caput ejus denotante offensam suam,” &c, The same ceremony is to be repeated
before the Royal Exchange, and again at Temple Bar. Then he was to be
committed to the House of Correction: —‘“ Et quod flagelletur die proximo
post adventum suum in Domum Correctionis predict’ et quod custos predict’
custodiat eum quotidie ad duram laborem per spatium dimidii unius anni,” —
14.S¢. Tr. 639.
f 14 St. Tr. 1327, Secus if the clergyman had been a Presbyterian minis-
ter. This compliment to the Church of Rome became necessary from the An-
glican Church acknowledging the sufficiency of Popish orders, so as to keep up
its own descent from the Apostles.
191
CHAP.
XXVI.
AD. 1702
—1710.
Prosecu-
tion of
Beau
Fielding
for bigamy.
Raymond
is counsel
for Lind-
say the
Jacobite.
192 LIFE OF CHIEF JUSTICE RAYMOND.
=i _ , France, in the service of the exiled James II., had come into
‘_ England without having obtained permission under the privy
av. 1710, seal to do so, and was now indicted on an act of the English
parliament which made it treason for any of the King’s sub-
jects who were abroad when it passed, to come into England,
without the King’s permission under the privy seal first had
and obtained. The facts were not disputed, and the case
resolved itself into a question of law, “ whether a native of
Scotland was bound by this statute?” Mr. Raymond power-
fully argued that, Scotland and England remaining separate
and independent, the Parliament of England could not legis-
late for Scotland or Scotchmen: but, in answer, the Attorney
General cited Calvin’s case, which was intended for the benefit
of Scotland, and by which it was decided that all Scotchmen
born since the union of the crowns by the accession of James
I. were to be considered entitled to the same privileges as
native-born Englishmen. Mr. Raymond, in reply, without
impeaching the authority of this very questionable judg-
ment, argued that a native-born Scotchman might be per-
mitted to inherit and hold lands in England, without being
liable while he remained in his own country, or did not re-
side in England, to be subjected to the pains of treason by
an English Parliament. Chief Justice Holt and the other .
Judges present overruled the defence, and sentence of death
was passed upon the prisoner; but, the public being shocked
by such a straining of the law, he was respited and par-
doned. *
Mr. Raymond, although he devoted the greatest portion of
his time to his profession, was by no means indifferent to
politics, and still cherished a cordial hatred of the Whigs.
He saw, therefore, with extreme delight the blunder which
they committed in the impeachment of Sacheverell, and he
assisted Harcourt with his advice in defending the champion
Mayis. Of the High Church. Accordingly, he was rewarded with
Raymond the office of Solicitor General, and received the honour of
made Soli- °
citor Ge. Knighthood.
ee bythe As member for Lymington, in Hampshire, he now
ories,
entered the House of Commons; but he seems to have
* 14 St. Tr. 987—1036.
LIFE OF CHIEF JUSTICE RAYMOND.
confined himself, while in office, to the routine law business
of the Government there.
He attached himself chiefly to Bolingbroke, and he is
supposed to have been privy to the scheme of this bold in-
triguer to bring in the Pretender at the death of Queen
Anne. Of course he was turned out on the accession of
George I.
For six years he remained in opposition, —occupied, like
most of his contemporaries, in intriguing alternately with the
banished royal family, and with Tories who were willing to
submit to the established order of things if they themselves
might hope by any chance to get into power.
The only great display of his eloquence preserved to us is
his speech against the Septennial Bill, which is very curious
as showing us that the Church-and-King men of that day
held the same language with the modern Chartists respecting
annual parliaments : —
“T fear,” said he, “the prolonged duration of parliaments will be
no cure for the general corruption supposed to arise from frequent
elections; for as the period for which the member is to sit is pro-
longed, the price of his return will increase in the same proportion.
An annuity for seven years deserves a better consideration than
for three, and those who are willing to give money for their seats
will be governed in the bargain by the true principles of com-
merce. Nothing will so effectually check corruption as annual
parliaments. That was our ancient constitution, and every de-
parture from it has been mischievous. A long parliament is plainly
destructive of the subject’s right, and many ways inconsistent with
the good of the nation. Frequent new parliaments are our con-
stitution, and the calling and holding of them was the practice for
many ages. Before the Conquest, parliaments were held three
times every year, —at Christmas, Easter, and Whitsuntide. In
Edward IIL.’s reign it was enacted ‘that parliaments shall be
holden every year, or oftener if need be.’ This must be under-
stood of new parliaments, for prorogations and long adjournments
were not then known, and were not heard of till the reign of
Henry VIII., who found that it best suited his tyrannical pur-
poses to keep up a standing body of slavish representatives whom
he had corrupted or intimidated.” After giving at great length
the history of the Triennial Act about to be repealed, he thus
VOL. iy oO
193
CHAP,
XXXVI.
Raymond
in opposi-
tion.
ASD id Los
His speech
against the
Septennial
Bill.
194
CHAP.
XXVI.
Ande L/ Lbs
‘ACD: 720,
He joins
the Whigs
and is made
Attorney
General.
May 9.
REIGN OF GEORGE I.
concluded : — “ Frequent and new parliaments create a confidence
between the King and his people. If the King would be ac-
quainted with his people and have their hearts, this is the surest
way. I can hardly think that you wish to perpetuate yourselves ;
yet you might do so on the same arguments; and if you pass this
bill, I cannot doubt but that before the end of the seven years
there will be another bill for a further prolongation. But at the
end of the time for which you were chosen, the people will say,
‘you are no longer our representatives; we chose you for three
years and no longer, and you cannot choose yourselves for an ex-
tended period ; henceforth you are usupers, and we have a right
to put you down.’ And I must say that, in my own poor opinion
(with great submission do I speak it), King, Lords, Commons,
can no more continue a parliament, than they can create a par-
liament without the choice of the people.” *
As the seeming stability of the new dynasty improved, the
high Toryism of Sir Robert Raymond was softened down ;
and, at last, he was induced to take office, along with Walpole
and Townshend, in the administration of Lord Stanhope. A
vacancy in the office of Attorney General arose, when (hor-
resco referens) Letchmere, who had enjoyed some eminence in
his day, was consigned to oblivion by being created Chancellor
of the Duchy of Lancaster and a peer. Raymond had con-
tracted an intimacy with Walpole during the short period
when this sagacious statesman was himself in opposition;
and, being warned by him against the evils of permanent
banishment from power, professed to discover that the Whigs
were now much more reasonable than when headed by
Godolphin and Marlborough, and declared that he might join
them without any sacrifice of principle or consistency. He
refused to serve under Sir Philip Yorke, who, about a year
before, had been appointed Solicitor General at the age of
28, and whose friends were impatient for his further promo-
tion. Many taunts were thrown out against the renegade
Tory; but Walpole, knowing his value as a law officer of the
Crown, warmly supported him, and, on the retirement of
Letchmere, he became Attorney General.
It is to the credit of Raymond and Yorke that they acted
together very cordially. The chief state trial which they
* 7 Parl. Hist, 335.
LIFE OF CHIEF JUSTICE RAYMOND.
had to conduct jointly was the prosecution of Christopher
Layer for high treason. On this occasion, Mr. Attorney
General Raymond thought himself bound to show that he
was now entirely free from the taint of Jacobitism, and thus
he commented upon the prisoner’s scheme to bring in the
Pretender : —
* Gentlemen of the Jury : You will readily agree with me that
nothing can be more dreadful to a true Briton who hath any
regard for himself or his posterity, or love to his country, than the
fatal consequences which must inevitably have attended such
wicked designs had they been carried into execution with success.
What could any one have expected from a rebellion in the heart
of the kingdom, but plunder and rapine and murder, a total sus-
pension of all civil rights, and a terrible apprehension of something
yet worse to come? All this must have been endured, even if the
attempt should have been disappointed at last. But had it pros-
pered, had his Majesty’s sacred person been seized and imprisoned,
and had the Pretender been placed on the throne, what a scene of
misery had opened! A mild administration, governed by the law
of the land under an excellent prince and as just and merciful as
ever wore the crown, must have given way to arbitrary rule under
a popish tyrant; all your estates must have been at the will of a
provoked and exasperated usurper; liberty must have been for
ever subverted, and the best of religions would be suppressed by
Romish superstition and idolatry. Nor would these dreadful
calamities have been confined within the bounds of his Majesty’s
dominions ; for should the present happy establishment in this
kingdom (the chief bulwark of the Reformation) be destroyed,
there is great reason to fear that the Protestant religion would ere
long be extinguished.”
He then proceeded to open the facts of the case in a style
of invective and rhetorical exaggeration which would be very
much censured in an Attorney General of the present times,
but which was then thought quite excusable. The prisoner
was certainly guilty, and Raymond, by all except his old
friends the Jacobites, was praised for convicting him.*
Nevertheless, Mr. Attorney found his position, both at the
bar and in the House of Commons, rather irksome. Bishop
Atterbury’s case came on; and, in taking part against this
* 16 St. Tr. 94—324.
02
195
CHAP.
XXXVI,
Octaly22:
His speech
for the
Crown in
prosecuting
Layer.
196
CHAP.
XXVI.
Po TIME ACIE
He sinks
into a
Puisne
Judge.
REIGN OF GEORGE I.
celebrated prelate, he incurred much odium, and was often
reproached as a turn-coat. He therefore wished for the
tranquillity of the bench; and, there being no chiefship
likely to become vacant soon, he astonished the world by
sinking into a Puisne Judge of the Court of King’s Bench,
in the room of Mr. Justice Eyre. There never before had
been an instance of an Attorney General accepting a puisne
judgeship, and hardly any of his condescending: even to become
Chief Baron of the Exchequer. ‘Till the Revolution, when
parliamentary government was established, and the practice
began of his going out with the administration which had
appointed him, his tenure was as secure as that of the judges ;
and, drawing higher emoluments than any of them, the great
seal alone could tempt him readily to give up his office as
long as his health and strength enabled him to discharge its
laborious duties. Raymond now, probably, rued his ratting,
but return to Toryism was impossible, and his only resource
was a retreat in which he would be entirely rescued from
politics.
On the 31st of January, 1724, he was called Serjeant,
giving rings with the motto “Salva libertate potens,” and, on
the 3d of February following, he took his seat as junior Judge
in the Court of King’s Bench.*
Henceforth he devoted himself exclusively to his judicial
duties, and he soon showed that he was destined to acquire
the reputation of a great magistrate. He was not only
familiarly acquainted with all professional technicalities, but
he possessed an enlarged understanding, and he was capable
of treating jurisprudence as a science. He, therefore, rose
very much in public estimation, and (what was of more im-
portance to his further advancement) he retained the friend-
ship of Sir Robert Walpole, who had become Prime Minister,
and was desirous of indemnifying him for the sacrifices he
had made in joining the Whigs.
Accordingly, he was appointed a Lord Commissioner of
* The next judge who followed this example was Sir Vicary Gibbs. “ When
Mr. Percival was shot at,” says Lord Brougham, “his nerves, formerly excel-
lent, suddenly and entirely failed him; and he descended from the station of
Attorney General to that of a Puisne Judge in the Common Pleas,”— States-
men, vol. i. p. 133.
LIFE OF CHIEF JUSTICE RAYMOND.
the Great Seal when Lord Macclesfield was forced to resign
it; and some thought that he was likely to be the successor
of that illustrious delinquent. But it so happened that, about
the same time, Lord Chief Justice Pratt died, and he in-
finitely preferred the chiefship of his own court to being
again launched on the tempestuous sea of politics. He him-
self, at the commencement of his Reports for Easter Term,
1725, gives us this simple statement of his elevation :—
“ Memorandum: that Sir John Pratt, Knight, Chief Justice of
the King’s Bench, died Wednesday, February the 24th last past,
and I was created Chief Justice in his place by writ bearing teste
March 2., and was sworn into the office March 3. following before
Sir Joseph Jekyll, Knight, Master of the Rolls, and Sir Jeffery
Gilbert, Knight, one of the Barons of the Exchequer, then two of
the Lords Commissioners for the custody of the Great Seal; not-
withstanding which, I continued one of the Commissioners of the
Great Seal, and Serjeant Reynolds was sworn in before me and the
other Lords Commissioners to be my successorasa Puisne Judge.” *
He continued to preside in the Court of King’s Bench,
with high distinction, above seven years; and, as a testimony
of respect for his services, he was raised to the peerage by
the title of Lord Raymond, Baron Raymond of Abbots
Langley in the county of Hertford, being the third Chief
Justice of the King’s Bench who had received a similar
honour.+
We know from contemporary testimony that he was much
admired and respected as head of the Common Law; but we
have now very slender means of estimating his merits.
Although he continued the Reporter of the Court of King’s
* 2 Lord Raymond, 1381.
+ Coke, Hale, and many others, are still called Lords; but Jeffreys and
Parker were the only preceding Chief Justices who had been ennobled, and
doubts had been entertained whether a peer could sit as a common law judge.
“1730(1), Jan. 21. Then Sir Robert Raymond, Kt., Ld. Ch. J. of His
Majesty’s Court of King’s Bench, being, by letters patent, dated 15 die Januarii
1730. Annoq. regni Georgii Secundi Regis Quarto, created Lord Raymond,
Baron of Abbots Langley, in the county of Hertford, was, in his robes, intro-
duced, between the Lord De Lawarr and the Lord Bingley, also in their robes ;
the Gentleman Usher of the Black Rod, Garter King of Arms, the Deputy
Earl Marshal of England, and the Lord Great Chamberlain, preceding. His
Lordship presented his patent to the Lord Chancellor, on his knee, at the wool-
sack ; who delivered it to the clerk; and the same was read at the table. His
Lordship’s writ of summons was also read,” &c. He then took the oaths, and was
“ placed on the lower end of the Barons’ bench.”—23 Lords’ Journals, 591, 592.
(0 ype
197
CHAP.
XXVI.
A.D. 1725.
He is made
Chief Jus-
tice of the
King’s
Bench.
He is
raised to
the peer-
age.
Jan. 14.
1731,
198
CHAP.
XXVI.
His doc-
trine that
the pub-
lisher of an
obscene
libel may
be pro-
cuted for a
misde-
meanor.
AeDe Wl Late
LIFE OF CHIEF JUSTICE RAYMOND.
Bench, and he has handed down to us many of his own de-
cisions, he does by no means the same justice to himself
which he had done to Lord Holt. This Chief would have
been immortalised by his judgments in the Aylesbury Case
on parliamentary privilege, and in Coggs v. Bernard on the
doctrine of bailments, as Lord Raymond has given them to
the world — but, from modesty, or from want of leisure, or
from carelessness, during the time when he himself pre-
sided, he hardly ever mentions the Chief Justice separately,
and generally introduces the determination of the case with
the words ‘per Curiam,” or “the Court thought,” or “ we
were all agreed.” Nor do the cases at that period seem to
have been numerous or important; and, to fill up time,
and to appear to have an air of business, the most was made
of every matter which came on for adjudication. Thus the
question “ whether nil debet was a good plea to an action of
debt on a deed to recover a penalty for breach of covenant?”
was solemnly argued four different times, in four successive
terms, before the Court would hold the plea to be bad.*
But I can give specimens of Lord Chief Justice Ray-
mond’s performances which do him credit. He it was who
first established the important doctrine that to publish an
obscene libel is a temporal offence, subjecting the party to be
prosecuted and punished as for a misdemeanor. ‘The
infamous Edmund Curl, held up to eternal detestation and
ridicule by Pope in the Duncrap, was charged by a criminal
information in the language then used — ‘ Quod ille existens
homo iniquus.et sceleratus ac nequiter machinans et intendens
bonos mores subditorum hujus regni corrumpere, et eos ad
nequitiam inducere, quendam turpem et obsccenum libellum,
intitulatum ‘ Venus in the Cloister, or the Nun in her
Smock,’ impie et nequiter impressit et publicavit ac imprimi
et publicari causavit [setting out the several lewd passages in
English] in malum exemplum,” &c. Having been tried and
found guilty by the jury, his counsel moved in arrest of
judgment on the ground that, however he might have been
punishable in the Ecclesiastical Court for an offence contra
bonos mores, this was not an offence of which the common
* Warren v. Cousett, Tr. Term 18 Geo. I.; 2 St. Tr. 778.
LIFE OF CHIEF JUSTICE RAYMOND.
law could take cognisance; arguing that “ notwithstanding
the filthy run of obscene publications in the reign of
Charles II., there had been no prosecution for any of them
in the temporal courts, and that whatever tends to corrupt
the morals of the people ought to be censured only as an
offence against religion by my Lords the Bishops.” Of this
opinion was Mr. Justice Fortescue, who said, —
* T own this is a great offence, but I know of no law by which
we can punish it. Common law is common usage, and where there
is no law there can be no transgression. At common law, drunken-
ness and cursing and swearing were not punishable. This is but
a general solicitation of chastity; and to make it indictable, there
should be a breach of the peace.”
Lord Raymond, C.J.: “I am of opinion that to publish any
writing which reflects on religion, virtue, or morality, is an act
which tends to disturb the civil order of society, and is a temporal
offence. It is not merely a sin, but a crime; it is directly hurtful
to others, as well as contrary to the soul’s health of the offender.
Why is this court called the censor morum if we cannot punish
that which subverts all morality ? For verbal scandal there may
be a suit in the spiritual court, and penance may be inflicted;
but for the injury done to the public by an obscene libel, this is
the proper tribunal.”
The matter stood over till another term, when, Mr. Justice
Page having succeeded Mr. Justice Fortescue, the Judges
were unanimous in discharging the rule to arrest the judg-
ment, and the defendant was set in the pillory, “as,” says the
reporter, “he well deserved.” *
It was in Lord Raymond’s time that the law of murder
and manslaughter was brought to the degree of precision in
which we now find it, with allits nice distinctions and refined
qualifications. The practice then prevailed of the jury
finding the facts by a special verdict, and leaving the guilt or
innocence, or the degree of guilt, of the prisoner as a question
of law to the judges.
One of the most interesting cases of this kind was the trial
of Major Oneby for the murder of Mr. Gower. These two
gentlemen, noted for their fashion and gallantries, had a
dispute while playing at hazard in a tavern in Drury Lane,
* Desthe 7osasml (ot. Liv 15S.
o4
199
CHAP.
XXVI.
A.D. 1727
He settles
the law re-
specting
murder and
man-
slaughter.
A.D. L 7256
Major
Oneby’s
Case,
200
CHAP,
XXXVI.
A.D. 1725.
LIFE OF CHIEF JUSTICE RAYMOND.
and the prisoner called tlie deceased “an impertinent puppy ;”
the deceased answered, “whoever calls me so is a rascal.”
The prisoner then threw a bottle at the head of the deceased,
which brushed his peruke as it passed, and beat some hair-
powder from it. Thereupon the deceased tossed a candle at
the prisoner without hitting him. They both drew their
swords, but were prevented by the company from fighting,
and again sat down to play. At the expiration of an hour
the deceased said to the prisoner, “* We have had hot words ;
you were the aggressor, but I think we may pass it over,”
and at the same time offered him his hand; — to which the
prisoner answered, ‘* No, damn you! I will have your blood.”
The reckoning being paid, the company had all left the room
except the prisoner, who, addressing the deceased, said,
« Young man, come back; I have something to say to you.”
The deceased returned. Immediately the door was closed,
and the clashing of swords was heard. When the company
re-entered they found that the deceased had been run through
the body by the prisoner,—and next day he died of his
wounds. The prisoner had received three slight wounds in
the rencounter. The deceased on his death-bed being asked
‘«‘ whether he received his wound ina manner called fair among
swordsmen?” answered “I think I did.” The jury found
that, “from the throwing of the bottle till the mortal thrust
was given, there had been no reconciliation between the
parties; — but whether this was murder or manslaughter,
they prayed the advice of the Court.” The counsel were
about two years in drawing up the special verdict which
stated these facts; and the prosecutor took no steps to bring
the case to a hearing, seeming rather inclined to let the pro-
ceedings drop. But the prisoner, who had been living all the
time gaily in Newgate, grew very confident, and feed counsel
to move the Court to fix a day for proclaiming his innocence.
The special verdict was twice argued; first before the four
Judges of the King’s Bench, and then before all the twelve
Judges of England.
Serjeant Eyre and Mr. Lee (afterwards Chief Justice), counsel
or the prisoner, argued that this was a case of manslaughter, for
which the punishment was merely burning in the hand; con-
LIFE OF CHIEF JUSTICE RAYMOND.
tending that ‘‘ there was here no malice aforethought, which was
necessary to murder ; the killing was on a sudden occasion ; man-
slaughter is killing without premeditation ; tra furor brevis est ;
and therefore, as a madman, the party is excused for what he does
in a transport of passion: the calling the prisoner a rascal was
what no man of honour could put up with, and this was the be-
ginning of the quarrel; the fighting was as sudden as the re-
proachful words: words alone would not reduce the offence to
manslaughter, and if the prisoner had at once stabbed the de-
ceased it might have been murder; but there was an interchange
of blows, and the deceased himself allowed that it was a fair fight ;
there was an interval, but no reconciliation, and the law has fixed
no certain time when the presumption arises that the passions of
men are cooled: besides, no one saw the beginning of the actual
affray ; the deceased certainly struck several blows, and might have
first struck and wounded the prisoner before the latter even drew
his sword the second time: the law under such circumstances
would mercifully presume provocation, which would reduce the
case to manslaughter.”
Lord Raymond, in a very long and most admirable judg-
ment, pronounced the unanimous opinion of all the Judges
that the prisoner was guilty of murder. After showing that
the malice necessary to constitute murder was not a settled
anger or long cherished revenge, but unprovoked deadly
violence without provocation or excuse, he observed, —
“ Mr. Gower did nothing that couid reasonably raise a passion
in Major Oneby. ‘The answer of Mr. Gower, on being called an
impertinent puppy, was not more than might have been expected,
that ‘ whosoever called him so was a rascal.’ Major Oneby, who
had begun the abusive language, then violently threw the glass
bottle. After they had been restrained from fighting, and had sat
an hour at play, the proposal of Mr. Gower ought to have ap-
peased Major Oneby; but what was his answer? ‘No, damn
you, I will have your blood!’ These words show his malicious
intent even in throwing the bottle. Then followed the imperious
and insolent command, ‘ Young man, I have something to say to
you!’ As soon as Mr. Gower had returned, the door is shut, and
a clashing of swords is heard, when Mr. Gower received the
mortal wound of which he died. If the prisoner had malice against
the deceased, though they fought after the door was shut, the in-
terchange of blows will make no difference; for if A. has malice
against B. and meets B. and strikes him, B. draws, A. flies to the
201
CHAP.
XXVI.
A.D: 17256
202
CHAP.
XXVI.
ASDP ys oe
LIFE OF CHIEF JUSTICE RAYMOND.
wall, A. kills B., it is murder. Nay, if the case had been that
there was mutual malice, and they had met and fought, the killing
had been murder. All the Judges are of opinion that in this
case there was malice in the prisoner. The defence rests upon
this being a sudden quarrel in which there was great provocation
from the deceased; but if there was sufficient time for the blood to
cool, and reason to get the better of the transport of passion
before the mortal wound was given, the killing will be murder,
and all the Judges are of opinion that the act was deliberate. It
was not necessary that malice should be found by the jury in the
special verdict. This is matter of law for the Court.. The jury
may find a general verdict, either that the prisoner is guilty of
murder or of manslaughter ; but if they find the facts specially, the
Court is to draw the conclusion, whether there was malice, or
whether the deed was done on a sudden transport of passion. It
has been adjudged that if two men fall out in the morning, and
meet and fight in the afternoon, and one of them is slain, this is
murder, for there was time to allay the heat, and their meeting
was of malice. Though the law of England is so far peculiarly
favourable (I know no other law that makes such a distinction
between murder and manslaughter) as in some instances to
extenuate the greatest of private injuries, as the taking away a
man’s life is, yet it must be such a passion as for the time de-
prives him of his reasoning faculties ; for if it appears that reason
has resumed her sway over him, if it appears that he reflects,
deliberates and considers before he gives the fatal stroke, the
law will no longer, under the pretext of passion, exempt him from ,
the punishment inflicted on murder. It is urged that, from the
prisoner’s three wounds, a new and sudden quarrel might have
arisen, in which Mr. Gower might be the aggressor; but it lies on
the party indicted to prove this quarrel, and none such being
found by the jury, we are not at liberty to presume that there was
any. ‘The last fact relied upon is, that Mr. Gower on his death-
bed allowed that the fight was fair. The answer is, that if A.
have malice against B., and they meet and fight, though the fight
is never so fair according to the law of arms, yet if A. kills B. it
will be murder.” Lord Raymond then cited all the authorities on
the subject from the earliest times in support of the doctrines he
had laid down, and he concludes his own report of the case with
the following ‘“ Memorandum: As soon as I had delivered
this resolution, I desired my brothers Fortescue, Reynolds, and
Probyn, that if they disapproved anything I had laid down, they
LIFE OF CHIEF JUSTICE RAYMOND.
would express their disapprobation, but they publicly declared
that they consented in omnibus.” *
The prisoner declared that, ‘as he hoped for mercy at the
hands of Almighty God, he had never used the expression so
much pressed against him, ‘J will have your blood;’” and,
having fought with distinction in all the Duke of Marl-
borough’s campaigns, he prayed “that he might be re-
commended to his Majesty’s clemency for his past services
in the cause of his country.”
Lord Raymond: “ As to the words, seeing that they were
sworn to, and stand in the special verdict, 1 am sorry to say your
denial can avail you nothing ; and, we sitting here only to declare
the law, you must apply elsewhere for mercy.”
Mr. Justice Fortescue, the senior Puisne Judge, pro-
nounced sentence of death. Before the day fixed for the
execution, came news of the death of George I. at Osnaburgh,
and great interest was made with the new Sovereign to begin
his reign with an act of grace by pardoning Major Oneby ;
but George II. declared that, “the Judges having unani-
mously adjudged the prisoner guilty of murder, the law should
take its course.” Nevertheless, Major Oneby disappointed the
executioner by opening an artery in his arm, so that he bled
to death, the night before the day when he was to be hanged
at Tyburnf, and he was buried in a highway with a stake
driven through his body. Although he had been a gal-
lant soldier, he was a man of very bad moral character,
having lived, since his regiment was reduced at the Peace of
Utrecht, as a professional gamester, and having before killed
several antagonists in duels brought on by his extreme
arrogance. {
The next trial for murder which I have to mention arose
out of an address to the public by THomson, in his WINTER,
* 2 Lord Raymond, 1500.
+ One contemporaneous account says, — “ About seven in the morning he
said faintly to his footman, who came into the room, ‘ Who is that, Philip?’
A gentleman, coming to his bed-side soon after, called * Major! Major!’ but,
hearing no answer, drew open the curtains and found him weltering in his
blood and just expiring. Mr. Green, a neighbouring surgeon, was instantly
sent for; but before he came the major was dead. He had made so deep a
wound in his wrist with a penknife that he bled to death.”
¢ 17 St. Tr. 30—74.; 2 Str. 766.; 2 Ld. Raym. 1485.; 1 Burr. 178.;
Select Trials at the Old Bailey, ii. 153.
203
CHAP.
XXVI.
A.D. 17250
A.D. 1730.
204
CHAP.
XXVI.
A.D. 17380.
Liability
of a gaoler
for murder
by neglect.
LIFE OF CHIEF JUSTICE RAYMOND.
in favour of the miserable victims then confined in our gaols.
This was caused by the death ofa prisoner in the Fleet of the
name of Arne, who had been confined for debt, and had expired
under circumstances the most heartrending. The poet, after
a compliment to the humanity of some humane individuals
who, “touched with human woe,” had searched ‘into the
horrors of the gloomy gaol,” thus proceeds : —
- . . “ Where sickness pines, where thirst and hunger burn,
And poor misfortune feels the lash of vice.
O great design ! if executed well,
With patient care, and wisdom-temper’d zeal.
Ye sons of mercy ! yet resume the search ;
Drag forth the legal monsters into light,
Wrench from their hands oppression’s iron rod,
And bid the cruel feel the pains they give.”
In consequence, the affair was taken up by the House of
Commons, who, after an investigation by a select committee,
addressed the Crown, praying that John Huggins, the
warden, and James Barnes, the deputy warden, of the Fleet,
should be prosecuted by the Attorney General for the murder
of Edward Arne.
The trial came on at the Old Bailey before Mr. Justice
Page, when the jury returned a special verdict, finding “ that
while Huggins was warden, and Barnes deputy warden, of
the Fleet, Arne was committed to that prison; that Barnes
confined him in a cold, damp, unwholesome cell over the
common sewer, knowing the same to be dangerous to life,
and kept him there forty days, absque solamine ignis, necnon
siné aliqua matula, scaphis, vel aliquo alio hujusmodi
utensili* ; that Arne died from this imprisonment; and that
during his detention in the cell Huggins was once present,
saw him under the duress of the said imprisonment, and
turned away without doing anything to relieve him.” After
the special verdict had been twice argued before the Judges,
Lord Raymond delivered judgment : —
“In this case two questions arise: —1. What crime the facts
found upon Barnes in the special verdict will amount to? 2.
Whether the prisoner Huggins is guilty of the same offence with
Barnes? As to the first question, it is very plain that the facts
found upon Barnes do amount to murder in him. Murder may be
* All indictments and special verdicts were still in Latin.
LIFE OF CHIEF JUSTICE RAYMOND.
committed without any stroke. The law has not confined the
offence to any particular circumstances or manner of killing ;
there are as many ways to commit murder as to destroy man.
Murder is where a man kills another of malice, so he dies within a
year and a day; and malice may be either expressed or implied.
Upon the facts found there is plain malice arising in construction
of law. Ifa prisoner by duress of the gaoler comes to an untimely
end, it is murder, without any actual strokes or wounds. The law
implies malice in such a case, because the gaoler acts knowingly in
breach of his duty. A prisoner is not to be punished in gaol,
but to be kept safely. The nature of the act is such as that it
must apparently do harm. It is also cruel as it is committed upon
a person who cannot help himself. So the charge of murder
against Barnes is fully established. 3. The next question is,
whether Huggins be guilty of the same offence; and the Judges
are unanimously of opinion that upon the facts found he is neither
guilty of murder nor of manslaughter. As warden, he shall
answer for the acts of his deputy civilly, but not criminally. It no
where appears in the special verdict, that he ever commanded or
directed, or consented to, this duress of imprisonment which was
the cause of Arne’s death. The verdict finds that once the pri-
soner Huggins was present, and saw Arne under the duress of the
imprisonment, and turned away* ; but it by no means follows
that he knew the man to be under this duress. We are told by
the counsel for the Crown that if he saw the man under this duress
he must know it, and it was his duty to deliver him. But we
cannot take things by inference in this manner. The seeing him
does not imply a knowledge of the several facts which make the
duress, which consists of several ingredients and circumstances
not to be discovered upon sight. If the evidence would have
warranted it, the jury should have found that he knew and that he
consented to what Barnes had done. Malice is an inference of
law for the Court, but consent is a fact to be found by the jury.
Then if the verdict be defective, we are pressed for a new trial ;
but, without determining the question whether after a special verdict
in felony there may be a venire de novo, we are all of opinion that
this verdict is not so uncertain as that judgment cannot be given
upon it. The facts found are positively found ; but, taken together,
are not sufficient to make Huggins guilty of murder, and therefore
he must be adjudged Nor GuiLty.” t
* « Sub duritie imprisonamenti preedicti et se avertit.”
t 17 St. Tr. 297—382.; 2 Lord Raym, 1574.
205
CHAP.
XXXVI.
As Ds E7808
206
CHAP:
XXVI.
A.Ded7S0.
LIFE OF CHIEF JUSTICE RAYMOND.
There is one other case of the same kind before Lord
Raymond, which is worthy of notice. In the popular rage
then prevailing against gaolers, Thomas Bambridge, a former
warden of the Fleet, was indicted for the murder of Robert
Castell, on the ground that he had confined him in a house
in which there was a man lying ill of the small-pox, a disease
which Castell had not had, and which he caught and died of.
The indictment coming on for trial at the Old Bailey before
Mr. Justice Page, Bambridge was easily acquitted on the
evidence for the prosecution; but, instigated by a mobbish
confederation, who subscribed large sums of money to gain
their object, Mrs. Castell, the widow, sued out an “ appeal of
murder” against Bambridge, and likewise against Corbett,
his deputy, who, in case of need, was to have been called as
his principal witness. The appellees, instead of waging
battle and defending themselves by their champions in the
listed field, as they might have done, put themselves upon
the country, and they were tried by Lord Raymond and a
jury of London merchants. ‘The prosecution was conducted
with great zeal by Mr. Reeves, afterwards Chief Justice of
the Common Pleas, and Mr. Lee, afterwards Chief Justice
of the King’s Bench; and they contrived, by dextrous ma-
nagement, to make out a sort of primd facie case. The
appellees were ably defended by Serjeant Darnell and Serjeant
Eyre, who both addressed the jury in their favour in long
and eloquent speeches*, and, by calling witnesses, they made
out a clear defence. Lord Raymond, in summing up the
case to the jury, said, —
“ This appeal by Mary Castell, for the death of her husband, is
grounded on the doctrine that as the law has particular guards
and privileges in justifying the right of a gaoler in detaining
prisoners in safe custody, so on the other hand he must treat them
humanely and put them into such places as do not prejudice their
limbs and lives ; for if they are put into such places and they die,
this is murder. If a gaoler brought bodies that were infectious
into a room, so that a prisoner should catch a mortal distemper, or
* Tt was only upon indictments in the name of the King that, at common
law, prisoners were deprived of the assistance of counsel in capital cases. If the
proceeding was by appeal, the trial was conducted as if it had been a civil
action.
LIFE OF CHIEF JUSTICE RAYMOND.
put him into irons by which he should die, the legal result is the
same. Likewise, if a gaoler will take persons that have not a
distemper, and carry them to a room against their consent after
notice given to him that such a distemper is there, it is at his
peril. In the present case, gentlemen, these circumstances must
be concurrent, that the deceased was carried to the house against
his will; that the distemper was in the house ; that the appellees
had notice of the distemper being there; that, notwithstanding,
he was carried and kept there, and that thereby he caught the
distemper which was the occasion of his death.”
He then went over the whole of the evidence, and showed
that, with respect to Corbett, there was nothing to prove
any knowledge of the distemper being in the house; and,
with respect to Bambridge, that Castell had gone with him
to the house voluntarily, and had made no complaint while
there till he caught the infection. The jury found both
appellees Nor GuiLtTy; but, from the popular prejudice
avainst them, they had been in considerable jeopardy.*
I have now to present to the reader Lord Raymond sitting
as judge on the trial of an information for libel. His autho-
rity has been mainly relied upon to support the doctrine
that, in such a proceeding, the truth of the assertion of fact
alleged to be libellous is wholly immaterial, and that libel or
no libel is a pure question of law for the Court. The leading
opposition journal of that day was the CRAFTSMAN, to which
Pulteney, Bolingbroke, and the other antagonists of Sir Ro-
bert Walpole, were constant contributors. In No. 235.,
dated 2d of January, 1730-1, there appeared a letter which
purported to come from a correspondent at the Hague, but
which in reality was written by Bolingbroke in London,
most bitterly inveighing against the foreign policy of the
Government, and imputing very disreputable conduct to
ministers in their negotiations with foreign states. This was
particularly obnoxious to King George II., who was then
engaged in deep political intrigues, with the view of adding
* 17 St. Tr. 383—462. ; 2 Str. 854. Notwithstanding this flagrant abuse
of the proceeding of appeal of murder, it continued till the year 1819, when it
was abolished upon Abraham Thornton throwing down his gauntlet on the
floor of the Court of King’s Bench, and demanding trial by battle, ut vidi.
See 59 Geo. III. c. 46,
207
CHAP.
XXVI.
A.D. 1730,
Lord Ray-
mond on
the law of
libel.
208
CHAP,
XXVI.
A.D. 1731.
LIFE OF CHIEF JUSTICE RAYMOND.
afew acres to the electorate of Hanover; and, to please
him, Sir Philip Yorke, the Attorney General, prosecuted
Francklin, the printer and publisher, who was a bookseller in
Fleet Street. “ At the trial, a vast crowd of spectators of
all ranks and conditions were assembled, and the court was
crowded with noblemen and gentlemen. It was remarkable
that Mr. Pulteney, presumed to be one of the patrons of the
prosecuted paper, was loudly huzzaed by the populace in
Westminster Hall, which shows the fondness of the people
of England for the freedom of the press.” *
The Attorney General contented himself with proving a
preliminary averment in the information respecting the ex-
istence of a treaty, and the purchase in the defendant’s shop
of a copy of the newspaper containing the Hague letter.
Mr. Fazakerley, on the other side, contended that the case for
the Crown was defective, because no evidence had been
given to falsify the statements in the letter, which he could
prove were true, and that, in reality, the jury ought to find
that the letter was no libel, as it did not in any degree
reflect upon the King, and only made fair observations on
the conduct of his ministers : —
Lord Raymond, C. J.: “ My opinion is, that it is not material
whether the facts charged in a libel be true or false, if the prose-
cution is by information or indictment. There are legal remedies
provided for every one who is injured, without scandalising others.
Above all, the character of a magistrate, minister of state, or other
public person, is to be protected. The law reckons it a greater
offence when the libel is pointed at persons in a public capacity, as
it is a reproach to the King to employ corrupt and incapable per-
sons. Such charges tend to sow sedition and to disturb the peace
of the kingdom. ‘Therefore I shall allow no evidence to prove
that the matters charged in the libel are true. If you think I am
wrong, apply to the Court, and they will do you justice.” In sum-
ming up he said, “There are here three things to be considered,
two of them being for the jury, and the third for the Court.
1. Did the defendant, Mr. Francklin, publish this Craftsman or
not? 2. Do the expressions in the letter allude to the King and
his ministers according to the innuendoes ? These are matters of
fact for your consideration of which you are the proper judges, and
* Boyer’s Political State of Europe, 1731.
LIFE OF CHIEF JUSTICE RAYMOND.
if you think in the affirmative on both questions, you will find a
verdict of guilty. There is a third question — whether these de-
famatory expressions amount toa libel or not? This belongs to the
office of the Court, for it is matter of law, of which the Court are
the only proper judges. We are not to invade each other’s pro-
vinces, as has been suggested of late by those who ought to have
known better.”
The jury having found the defendant guilty of publishing
the libel, he was sentenced to a year’s imprisonment and to
pay a fine of 1002*
Lord Raymond’s authority as a judge was so high that his
decisions at Nisi Prius, when sitting all alone trying causes
by jury, were reported, and settle many important points
which, till then, were doubtful; as, that “a husband is not
liable to be sued for necessaries supplied to his wife if she
has eloped from him with a paramour;”f that, “if goods
which are not necessaries are supplied to a minor, he is bound
by a promise made after coming of age to pay for them;”t
that, “if a man render services for which he would otherwise
be entitled to be paid, he cannot maintain an action for them
if he rendered them to ingratiate himself in hopes of a legacy,
although the party who receives them dies without leaving
him anything ;”§ and that, “‘ notwithstanding the old maxim,
pater est quem nuptie demonstrant, the child of a married
woman may be proved to be illegitimate by evidence that
her husband could not have been the father of the child,
although he was living within the four seas.” |
Lord Raymond was sworn a member of the Privy Council
when made Chief of the King’s Bench; and, as often as
George I. or George II. went abroad, he was constituted one
of the Lords Justices for the government of the kingdom in
the King’s absence: but in these capacities he confined him-
* 17 St. ‘Tr. 625--676. He wasmore lucky another time, when his acquittal
gave rise to Pulteney’s ballad—* Sir Philip well knows that his innuendoes,” &e.
(See post, in Life of Lord Mansfield.) Looking to these exploded heresies, which
then passed for gospel, it is curious to conjecture whether any, and which, of
the doctrines which are now reverentially chérished will be anathematized by
posterity.
+ Morris v. Martin, 1 Str. 647.; Manwaring v. Sands, 2 Str. 706.
¢ Southerton v. Whitlock, 2 Str. 690.
§ Osborn v. Guy's Hospital, 2 Str. 728.
|| Pendrell v. Pendrell, 2 Str. 924,
VOL. II. Me
209
CHAP.
XXVI.
A.D. 1725
—1731.
Lord Ray-
mond’s
Nisi Prius
decisions.
Lord Ray-
mond’s ab-
stinence
from poli-
tiles.
210
CHAP.
XXVI.
av. 1731.
His oppo-
sition to
the bill for
conducting
law pro-
ceedings in
English.
His death.
LIFE OF CHIEF JUSTICE RAYMOND.
self merely to going through formalities. He would take no
active part in politics; and, although he steadily voted for
Sir Robert Walpole’s government, he never spoke upon any
party question.
The only debate in which I can find that he ever mixed
in the House of Lords was on the bill enacting that all
legal proceedings should be conducted in the English lan-
guage. Iam sorry to say that he opposed it as a dangerous
innovation, thinking that barbarous Latin should still be
used to express a criminal charge in an indictment, the mean-
ing of it being quite unintelligible to the party accused,
whether illiterate or a good classical scholar. Lord Raymond
ridiculed the supposed necessity for records being in the
vernacular tongue, by observing that,“ upon this principle,
in an action to be tried at Pembroke or Caernarvon, the
declaration and plea ought to be in Welsh.” The Duke of
Argyle courteously answered, that ‘he was glad to perceive
that the noble and learned lord, perhaps as wise and learned
as any that ever sat in that House, had nothing to bring
forward against the bill but a joke.” *
I have been able to discover very little of Lord Raymond
in private life. He seems to have associated only with law-
yers. He resided chiefly in Red Lion Square, then the seat
of the legal aristocracyt; and he had a country-house in
Hertfordshire, where he bought a large estate. After a short:
illness, he died, in Red Lion Square, on the 15th of April,
1733, in the 6lst year of his age; and he was buried at
Abbots Langley.
At the east end of the parish church is to be seen a handsome
* 8 Parl. Hist. 861. In palliation of Lord Raymond’s prejudice in favour
of ancient absurdities, I may observe that I have heard judges in my own time
lament the change then introduced, on the ground that, although it might be
material for the parties, both in civil and criminal proceedings, to have some
notion of what is going on, the use of the law Latin prevented the attorneys’
clerks from being so illiterate as they have since become. I may likewise
mention the ruling of a Welsh judge about thirty years ago, on a trial for
murder, “ that the indictment and the evidence must not be interpreted into
Welsh for the information of the prisoner, as that would be contrary to the
statute of George II. which requires all proceedings to be carried on in the
English language.”
+ Such a change had been produced by the lapse of a century, that, to denote
the inferiority of the class now to be found there, I have heard the comparison,
“as proud as a judge’s wife at a rout in Red Lion Square.”
LIFE OF CHIEF- JUSTICE RAYMOND.
marble monument of Lord Chief Justice Raymond, who is
represented in a sitting posture, leaning upon a pile of books:
in his right hand he holds a scroll, upon which is written
* Magna Charta;” his left is stretched out to receive a
coronet, presented to him by a child; on his right hand sits
a lady, in a mournful posture, holding over him a medallion,
upon which is the head of a youth, carved in relief.
Under the shield containing his arms there is the follow-
“ing inscription: —
“OBLATOS HONORES FILIL GRATIA ACCIPIT JUDEX Z2QUISSIMUS.
M. S.
Honoratissimi viri Roberti Raymond,
Baronis de Abbot’s Langley ;
Cujus meritis raro exemplo respondit Fortuna;
honesto enim loco natus,
literisque humanioribus prima «tate excultus,
universam juris scientiam, cui sese addixerat,
tanta ingenii facilitate complexus est,
ut inter preecipuos causarum patronos
brevi tempore haberetur ;
in quo munere exequendo,
cum pari fide solertia atque gravitate
indies magis magisque inclaruisset,
ad diversos juris honores gradatim ascendit ;
donec augustissimorum principum Georgii I. et I]. jussu
Capitalis Angliz Justiciarius constitutus,
mox, ut uberiorem virtutis sue fructum caperet,
in amplissimum proeerum ordinem
Cooptatus est.”
He left behind him one son, by his wife, who was a daugh-
ter of Sir Edward Northey, Attorney General to Charles IT.
The second Lord Raymond was not very distinguished,
and I do not find him noticed except in the proceedings
against Astley and Cave for printing an account of Lord
Lovat’s trial — when he was chairman of the committee to
whom the matter was referred, and moved their commitment.
He was married to a daughter of Lord Viscount Blundell,
of the kingdom of Ireland; but, dying without issue, in the
year 1756, the title became extinct.*
The Chief Justice’s REportst are the great glory of the
* It is a curious fact that Lord Kenyon is the first ennobled Chief Justice of
the King’s Bench of whom there is a descendant now a member of the House
of Lords.
+ These Reports were first printed in 1743, and a second edition came out
in 1745. The last edition, by Mr. Justice Bayley, with valuable notes, ap-
peared in 1790, From the multiplicity of modern Reports, the old ones will
probably never be reprinted,
pee
211
CHAP.
XXVI.
A.v. 1733.
His monu-
ment,
His epi-
taph.
212
CHAP.
XXVI.
A.D. 1733.
Panegyric
upon him.
Lorp
Harp-
WICKE
Chief Jus-
tice of the
King’s
Bench.
LIFE OF CHIEF JUSTICE HARDWICKE.
family, and have obtained his introduction into Horace Wal-
pole’s Catalogue of Royal and Noble Authors, who describes
him as “one of those many eminent men who have risen to
the peerage from the profession of the law.”*
The warmest eulogium pronounced upon Lord Raymond
is in the dedication to him of the Reports of Chief Baron
Comyns. The eulogist, after describing the splendour of his
reputation as supreme magistrate of the common law, adds —
“ The difficulty of succeeding a person so truly eminent as
your Lordship’s noble and learned predecessor was too ap-
parent to all the world; but I may venture to add, with as
much truth, that his Majesty (whose great regard and paternal
affection for his subjects can appear in nothing more than so
worthily filling the seats of justice) never gratified them in
a more sensible manner than when he conferred that honour
on your Lordship; for, however excellent great abilities and
profound science are in themselves, however necessary to
persons intrusted with the public sword of justice, they only
become truly valuable to the rest of mankind when governed
and directed by the rules of honour, virtue, and integrity.” ¢
On the death of Lord Raymond, the office of Chief Justice
of the King’s Bench remained vacant for several months.
About the same time, Lord King, from severe indisposition,
was obliged to resign the great seal, and the arrangements
which, in consequence, became necessary caused great per-
plexity. At last it was settled that Mr. Talbot, the Solicitor
General, should be Lord Chancellor; and, in Michaelmas
Term, Sir Puirip YorKe, the Attorney, took his seat as
Chief Justice of the King’s Bench.
I ought now to describe his wonderful course, from the time
when being an attorney’s gratis clerk he was sent to buy
cabbages at the greengrocer’s and oysters at the fishmonger’s
for an imperious mistress, till he became Lord High Chan-
cellor, an earl, and the renowned framer of our equitable
code; but I have already, to the best of my ability, narrated
his adventures, and drawn his character; and, upon reflection,
* Works, vol. i. p. 445.
t See Chalmers’s Biographical Dictionary, “ Lord Raymond;” Kent’s
Commentaries, 488.
LIFE OF CHIEF JUSTICE LEE.
I see no reason to retract or to qualify any of the praise or
of the censure which I had ventured to mete out to him.*
It was thought that he would end his days as a common
law judge, like Hale, Holt, and many of his most illustrious
predecessors ; but, after he had presided in the King’s Bench.
little more than two years, Lord Talbot died suddenly, while
still a young man; and Lord Hardwicke, being transferred to
the woolsack, fulfilled his illustrious destiny.
Much difficulty was experienced in fixing upon a successor
to him in the Court of King’s Bench. From the earliest
times, in each of the superior common law courts, a CHIEF
had been constituted, with pwzsnies under him; for, with a
perfect equality of rank among all the judges, a constant
struggle would be carried on among them for ascendancy,
the bar could not be duly kept in order, and the business
would be thrown into confusion. But the full advantage
of this arrangement can only be obtained when the Chief
is superior to his brethren in talents and reputation. The
condition of the court is very unseemly and inconvenient
when the collar of §.S. is worn by one who feels that he
does not deserve it, or who is considered by others inferior
in authority to those who sit undecorated, by his side.
Lord Hardwicke, during the chancellorship of Lord Talbot,
having been eclipsed in the House of Lords by the superior
brilliancy of that extraordinary man, was supposed to be
anxious to avoid the annoyance of having another law lord
as a rival. Some applied to him the magniloquent comparison
that he would
«“ Bear, like the Turk, no brother near his throne ; ”
and others, in homely but expressive language, said “ he was
resolved to rule the roast.” + He therefore cast his mantle on
* Lives of the Chancellors, vol. v. ch. exxix—exxxvil. Since the first edi-
tion of my book, a Life of Lord Hardwicke, by Mr. Harris, has been published,
in which complaint is made of me as often as I have ventured to doubt the pro-
priety of anything that our hero ever did, said, wrote, or thought. But the
«faultless monster” whom this author describes bears a very partial resemblance
to Lord Hardwicke.
+ Lond. Mag. 1737. He actually did rule the roast more than twenty years,
sitting during all that time the only law lord in the House of Peers.
b sat)
213
CHAP,
XXVI.
Feb. 1737.
Difficulty
in filling up
the office
on his pro-
motion to
be Chan-
cellor.
214
CHAP.
XXVI.
Sir W1-
LIAM LEE
Chief Jus-
tice of the
King’s
Bench,
His birth.
LIFE OF CHIEF JUSTICE LEE,
*
Sir Wituram Lex, who had been one of his puisnies, who was
of decent character and respectable qualifications, who had no
pretensions to a peerage, and who could never in any way be
formidable to a chancellor. Although this selection was sus-
pected to proceed from selfish motives, there is some doubt
whether, from the peculiar state of the bar at that time, a
better could have been made: for there were serious objec-
tions to Willes, the Attorney General, on account of his pro-
fligate private life; and Ryder, the Solicitor General, had as
yet very little weight or legal reputation. The honours of
the profession may be considered a lottery; or if they are
supposed to be played for, — in the game there is more of luck
than of skill. At times, we see a superfluity of men well
qualified for high legal offices, while years roll on without a
vacancy. At times, vacancies inopportunely arise when
they cannot be reputably filled up. Sir William Lee had
never dreamed of being more than a puisne, till the hour when
it was announced to him that he was CHIEF JUSTICE OF
ENGLAND.
He and his brother Sir George, like the two Scotts, Lord
Eldon and Lord Stowell, had the rare felicity of presiding at
the same time over the highest common law and civil law
courts in this country; for while Sir William Lee was Chief
Justice of England, Sir George Lee presided as Dean of
the Arches and Judge of the Prerogative Court of Canter-
bury. They were the sons of Sir Thomas Lee, of Hartwell,
in the county of Bucks, Bart.
William, the younger, who was born in the year of the
Revolution (1688), used often to say that, “as he came in
with King William, he was bound to be a good Whig.” He
might have been called “ Single-joke Lee,” for, although
highly honourable and respectable, he was the dullest of the
dull throughout the whole course of his life; and this oft-
repeated pleasantry, with which he was in the habit of intro-
ducing his opinion on any controverted question of politics,
was the only one which he was ever known to attempt or to
relish.* Great astonishment was expressed by most of those
* According to this instance, Pope’s line ought to have been —
“ For gentle dullness ever loves one joke.”
LIFE OF CHIEF JUSTICE LEE.
who knew him at college when it was announced that he was
destined for the profession of the law, and predictions were
uttered that he would starve in it. But an old gentleman who
had been his tutor, and who knew what was in him, said, “ I
shall not—but you who are young may—live to see him Chief
Justice of England, for to plodding and perseverance nothing
is impossible.” The dull and despised William Lee did plod,
did persevere, and did become Chief Justice of England.
In preparing for the bar, he mainly devoted himself to
special pleading, in which he took great delight. He never
even had attempted to cross the “Ass’s Bridge,” so that he
. could not tell whether this would have proved an insuperable
obstacle to his mathematical progress ; and, though well drilled
in the rules of prosody, he utterly and for ever renounced
classics as soon as he had taken his bachelor’s degree at Ox-
ford. Of modern literature he had not the slightest tincture.
He felt no regret that he had lost an opportunity of being
presented to Dryden. Instead of writing a paper in the
SPECTATOR, like his contemporary and fellow law-student,
Mr. Philip Yorke, he declared’ that he had never got further
than the second number, where he was shocked “by the
description of the idle Templar, who read Aristotle and
Longinus, who knew the argument of each of the orations
of Demosthenes and Tully, but not one case in the reports
of our own courts, and whose hour of business was the
time of the play, when, crossing Russell Court and having
his periwig powdered at the barber’s, he took his place in
the pit of Drury Lane Theatre, exciting the ambition of
the actors to please him.” It cost Lee no effort of self-
denial to abjure such unprofitable pursuits. As it were in
the gratification of a natural instinct, he took to the Liber
Placitandi ; and, to fix it in his memory, he copied it over
three times with his own hand. He luxuriated likewise in
Coke’s Entries; and in perusing Saunders’s Reports he loved
more to dwell upon the declarations, pleas, and replications,
as there set out at full length, than the subsequent epigram-
matic statements of the arguments and the decision which
have gained to the author the title of “the Terence of Re-
porters.” The fiction of “ giving colour,” which had driven
es
215
CHAP.
XXVI.
—<-
A.D. 1700
—1710.
Prophecy
as to the
effect of
plodding
and perse-~
verance.
His passion
for special
pleading.
216
CHAP
XXXVI.
A.D, 1718.
His victory
in a GREAT
SETTLE-
MENT CASE,
¢
a.p. 1730,
He is
counsel in
appeal of
murder.
LIFE OF CHIEF JUSTICE LEE.
some very scrupulous pleaders from the bar, particularly
charmed him; and, considering the rules of law to be founded
either on the eternal fitness of things or on the revealed will
of God, (a question which, it appears from his Diary, he was
accustomed to dispute,) there was no dexterity sanctioned by
these rules which he did not deem justifiable. At the same
time he was an amiable, worthy man, —
. and if astute in aught,
The love he had to pleading was in fault.”
We need not wonder that his fame went forth among the
attorneys, and that soon after he was called to the bar he was
in considerable practice — as a fabricator of sham pleas, and
an arguer of special demurrers. His name appears frequently
in the Reports as counsel in special pleading cases; but,
though “ to the manner born,” I must confess my inability to
explain these mysteries to the profane.
There are only two cases on other subjects in which he is
recorded as having been counsel while he remained at the
bar. The first is Rex vy. Ivinghoe, which came from the
quarter sessions of his native county, and in which the
question was, ‘“ whether a settlement was gained by a pauper
who had been hired for a year by one master, and, with the
consent of his first master, served part of the year under
another?” This was quite adapted to Lee’s capacity, and hear-
gued it as elaborately as if the rights and liberties of English-
men had depended upon it. He succeeded, and was probably
as much pleased with himself as Erskine on the acquittal of
Hardy and Horne Tooke, for he induced that great sessions
lawyer Lord Chief Justice Pratt to say, “ If I lend my ser-
vant to a neighbour for a week or any longer time, and he
goes accordingly and does such work as my neighbour sets
him about, yet all this while he is in my service, and may
reasonably be said to be doing my business. Therefore, I
take this to be a service for the whole year under the first
contract, and the settlement is at Ivinghoe.” *
Again, when the famous appeal of murder was sued out
against Bambridge and Corbett, the mode of proceeding being
almost obsolete, Lee, from his black-letter reputation, was
* 1 Strange, 90.
LIFE OF CHIEF JUSTICE LEE.
employed to conduct it. The-trial coming on, he addressed
the jury at great length, and exerted himself very unscrupu-
lously to obtain a conviction; but he met with a signal de-
feat, which made him vow that in future he would have
nothing to do with facts, and would stick to law alone.*
When in his 40th year — an age when ambition is said to
rage with greatest fury — he was much annoyed by an offer
to be brought into the House of Commons, by the interest of
his family, for Chipping Wycombe, in Bucks. He long
strenuously refused, but, being told that if he persisted in
doing so the seat would be carried by the Tories, he suc-
cumbed, observing that, “ as he came in with King William,
he was bound to be a good Whig.” However, we in vain
look to see hisname in the Parliamentary History ; for while
his brother George was a frequent and excellent speaker, and
so became one of the leaders of the Leicester House party,
no human power would have induced William to make a
speech, unless he might wear his wig and gown and hold a
brief in his hand. Although he voted steadily with the
Government, he would never, even in the lobby or in private
society, give any better reason for the line he teok than that
“he came in with King William, and he was bound to be a
good Whig.”
The next offer which was made to him he accepted without
hesitation, and he became a Puisne Judge of the King’s
Bench, — reaching the summit of his ambition, and better
pleased than he could conceive himself to be by winning a
battle equal to BLENHEIM, or writing a poem more esteemed
than Parapise Lost. It was supposed, and said, that he
had been promoted because he had so steadily proclaimed and
proved himself to be “a good Whig;” but politics had
nothing to do with the appointment. Sir Robert Raymond,
then Chief Justice of the King’s Bench, complained bitterly
of the insufficiency of his pwisnies, particularly in the know-
ledge of special pleading, of which he himself, notwithstand-
ing his genera! juridical acquirements, was by no means
master; and he made a particular application to Lord Chan-
cellor King, that a vacancy which then occurred in the court
* 17 St. Tr. 401.
217
CHAP.
XXVI.
A.D. 1728,
His dislike
of the
House of
Commons,
He is made
a Puisne
Judge.
218
CHAP.
XXXVI.
4.D. 1730. |
His inti-
macy with
Lord
Hard-
wicke,
He is made
Chief Jus-
tice of
England.
LIFE OF CHIEF JUSTICE LEE.
might be filled up by Mr. Lee, who was more eminent in
this line than any other man in the profession. Being coifed,
sworn in, and knighted, the new Judge took his seat in the
Court of King’s Bench on the 15th of June, 1730.
He remained a Puisne Justice for seven years, under Lord
Chief Justice Raymond and Lord Chief Justice Hardwicke,
and was found exceedingly useful to them and to the public.
Having concentrated all the energies of a mind naturally
strong, and quickened by dialectical exercise, on one depart-
ment of one science, he had attained in it to an unexampled
skill. Moreover, its rules and analogies having a very ex-
tensive influence over the whole body of our law and pro-
cedure, few points arose in the course of a term on which his
opinion was not valuable. He gave it with much modesty
and discretion ; not seeking to expose the ignorance of his
brethren, or to parade his own knowledge, but setting the
Chief Justice right by a whisper, and inducing a by-stander
to believe, when the judgment was given, that they had all
perceived how it must be from the first, —-insomuch that he
was likened, by the knowing, to the helm which keeps the
ship in her right course, without itself attracting any notice.
Sir William Lee particularly gained the favour of Lord
Hardwicke, and is called by Horace Walpole and other con-
temporary writers his “creature,” his “tool,” his “ de-
pendant,” and his “shadow.” Their great intimacy appears
from Lord Hardwicke having employed Lee to assist him in
bargaining for the estate in Gloucestershire from which he
took his title, and to act as a trustee in his family settle-
ments. *
Lord Hardwicke, on becoming Chancellor, was severely
blamed for rewarding such services by promoting a man well
qualified for the subordinate station which he occupied, but
wholly: unfit to be Chief Justice of England,—who, in addition
to being a good special pleader, should be an enlightened
jurist, experienced in the ways of the world, well qualified to
address a legislative assembly, a scholar, and a gentleman.
No one can blame Sir William Lee for accepting the
honour which was thrust upon him; and, public expectation
* Harris’s Life of Lord Hardwicke, i. 188.
LIFE OF CHIEF JUSTICE LEE.
being low, it was generally allowed that he acquitted him-
self very reputably. His intentions were ever most pure
and upright; his temper was well disciplined; his manners
were bland; and, although it could not be said that he took
an enlarged view of any subject, or did much to improve
our code, his decisions between the parties litigating before
him were substantially just.
On Monday, the 13th of June, being the fourth day of
Trinity Term, 1737, he took the oaths and his seat as Lord
Chief Justice in the Court of King’s Bench. Subsequently
to the Revolution, when judges actually did discharge their
duty in an independent manner, they ceased to make any
parading professions of their good intentions, and inaugural
speeches had become obsolete. Lord Chief Justice Lee is
said materially to have altered the opinion which the bar en-
tertained, or at least expressed, of his law, by retaining a
French cook, and giving frequent rounds of good dinners
with copious draughts of claret and champagne.* He like-
wise had a villa at Totteridge, which still belongs to his
family, where he used to entertain professional parties very
hospitably, and tell them how he came in with King William.
Dependants and flatterers clustered round him, and before
he died he was praised as one of the greatest of Chief
Justices.
His fame may have increased from his having had the
good word of the fair sex; he certainly stood up for the
rights of woman more strenuously than any English judge
before or since his time. He had to decide “ whether a
female may by law serve the office of parish sexton?” and
*‘ whether females were entitled to vote at the election of a
sexton?” John Olive and Sarah Bly were candidates for
the office of sexton in the parish of St. Botolph in the city
of London. She had 169 male votes and 40 female. He
had 174 male votes and 22 female, and he was sworn in.
The validity of the election coming on to be determined in
the Court of King’s Bench, the gentleman contended that all
* He was in the habit of particularly praising the precept of Lord Burleigh
to his son “ to keep an orderly table; ” by which he understood a table covered
with good di:hes set out in orderly fashion.
219
CHAP.
XXXVI.
A.D, 1737.
His in-
creasing
popularity.
His judg-
ment in
favour of
the “ rights
of wornen,”
220 LIFE OF CHIEF JUSTICE LEE.
CHAP. the votes for the lady were thrown away, as she was dis-
a Fee qualified on account of her sex; and at any rate that he had
a majority of lawful votes, as the female votes on both sides
must be struck off from the poll, a woman being no more
entitled to vote for a sexton than for a member of parliament
or for a coroner, which Lord Coke says “ they may not do
although they have freeholds and contribute to all public
charges — even to the wages of knights of the shire, which
are to be levied de communitate comitatus.” (4 Inst. 5 Reg.
Brev. 192.)
Lee, C.J.: “1 am clearly of opinion that a woman may be
sexton of a parish. Women have held much higher offices, and,
indeed, almost all the offices of the kingdom: as Queen, Marshal,
Great Chamberlain, Great Constable, Champion of England, Com-
missioner of Sewers, Keeper of a Prison, and Returning Officer for
members of parliament.” * 2. As to the second point, it would be
strange if a woman may herself fill the office, and yet should be
disqualified to vote for it. ‘The election of members of parliament
and of coroners stands on special grounds. No woman has ever
sat in parliament or voted for members of parliament, and we
must presume that when the franchise was first created it was con-
fined to the male sex. There was no reason for such a restriction
respecting the office of sexton, whose duties do not concern the
morals of the living, but the interment of the dead. ‘The female
votes being added to the poll, Sarah Bly has the majority, so
that she, and not John Olive, is now the lawful sexton of this
parish.”
The Puisnies concurring, judgment was given in her
favour. T
I do not find any other cases which came before him in the
King’s Bench so fully reported, but, from short notes in
Other im. Strange, we find that he decided several important points —
portant as that “it is a misdemeanor to take a young lady out of
angio the care of a guardian appointed by the Court of Chancery,
him.
* Spelman’s Glossary, 497.; 3 Keble, 32.; Blunt’s Tenures, 47. ; Dyer,
285.; Hob. 148.; Brady’s History of Boroughs. Lady Packington was re-
lieving officer at Aylesbury; and the famous Countess of Pembroke, being
hereditary sheriff of Westmoreland, attended the judges in that capacity at the
assizes,
+ 2 Str.1114. Same Case, MS. Taking the converse of Lee’s rule, a woman
may be a Director of the East India Company, as she is entitled to vote for that
office.
LIFE OF CHIEF JUSTICE LEE.
and to marry her, although she goes away voluntarily; ”
that “it is a misdemeanor to keep gunpowder where it may
be dangerous to the King’s subjects;” f that “it is actionable
to say of a justice of the peace, in the execution of his office,
that he is arogue;”} that ‘at common law a factor, although
HIM to sell, cannot pledge the goods consigned to Eis
care;” § that “if a ship, insured in time of war against all
perils except capture, sails on the voyage and is never heard
of, it shall be presumed that she foundered at sea, so as to
make the underwriters liable; ” || that “an action lies for
keeping a dog, known by his master to be accustomed to
bite men, whereby the plaintiff was bitten, although the
damage arose from the plaintiff having accidentally trod upon
the dog’s toes;”| and “‘ that a pardon being pleaded to an
indictment for murder, after a special verdict found, the
prisoner is entitled to be discharged without finding sureties
to abide an appeal by the heir of the deceased.” ¥
Lord Chief Justice Lee presided at the special commission
which sat for the trial of those who had taken part in the
rebellion of 1745. Under an act of parliament which au-
thorised the Government to prosecute them in any county in
England, a Court, attended by all the Judges, assembled at
St. Margaret’s Hill, in the borough of Southwark. Most of
those who were to be tried had been engaged in the siege of
Carlisle, and had surrendered to the Duke of Cumberland.
The charge to the grand jury was given by Lee, who fully
explained to them how they, in Surrey, came to have cog-
nisance of offences committed in a distant part of the king-
dom, and laid down to them very distinctly the doctrine of
compassing the King’s death and of levying war against him.
The indictments found against the Earls of Kilmarnock
and Cromartie, and Lord Balmerino, were immediately re-
moved by certiorari to the House of Peers, — but those
against commoners were proceeded with before Surrey juries
as expeditiously as the forms of law would permit.
* Rex v. Lord Ossulston, 2 Str. 1107. + Rex v. Taylor, ib. 1167.
+ Kent v. Pocock, ib. 1168. . § Patterson v. Tash, ib. 1178.
|| Green v. Brown, ib. 1199. | Smith v. Polak, ib. 1264.
q Rex v. Chetwynd, 18 St. Tr. 289.
221
CHAR:
XXVI.
A.D. 1746,
Trials of
the rebels
at St. Mar-
garet’s
Hill.
July, 1746,
222
CHAP.
XXVI.
A.D. 1746,
Colonel
Townley’s
Case.
LIFE OF CHIEF JUSTICE LEE.
The first case taken was that of Colonel Francis Townley,
the representative of an ancient family in Lancashire, who,
entering the French service, had distinguished himself much
at the siege of Philipsburgh and on various other occasions,
and who still held a commission from the King of France
when he joined the army of the Pretender. He set up two
defences. ‘The first was, that he ought to be treated as a
prisoner of war and not as a traitor, for he had acted under
the authority of a foreign sovereign, who was making open
war against the crown of Great Britain, —therefore, instead
of being executed for high treason, he was entitled to be ex-
changed under the cartel lately established between the two
countries, according to the usages of honourable hostilities.
2dly: At all events, if he were still liable to be treated as an
English subject, he claimed the benefit of the articles of the
capitulation of Carlisle, signed by the Duke of Cumberland,
engaging that, on the surrender of the city, the prisoners
taken in arms “shall not be put to the sword, but be re-
served for the King’s pleasure,”— amounting, as he contended,
to a solemn pledge that their lives should be spared, and,
therefore, barring any capital proceedings against them.
Lee, C. J.: “ Neither defence can avail: — 1. The prisoner is
a native-born subject of this realm, and cannot free himself from
the allegiance which he owes to his own sovereign by entering
into the service of a foreign state. Our law says, Nemo potest
exuere patriam. ‘The very fact relied upon that the prisoner is in
the service of France, a country with which we are now at war,
is an adherence to the King’s enemies, and an overt act of high
treason. 2. The second defence we could give no effect to here,
and it could only be made the foundation of an appeal to the
Crown to withdraw a prosecution which ought not to have been
instituted ; but, as it has been brought forward, I think I am
bound to say that, in my opinion, there is no foundation for it in
reason, justice, or honour. The only fair meaning of the words
relied upon is, that the prisoners should not immediately be put to
death by martial law as rebels taken in arms, but should have the
benefit of a fair trial according to our humane forms of procedure
before the Judges of the land.” *
* A mighty small benefit, certainly; as, if tried for treason, they could not
have the remotest chance of escape, and it would have been better for them to
have been shot, than hanged, embowelled while yet alive, beheaded, and quartered.
LIFE OF CHIEF JUSTICE LEE.
The prisoner was, of course, found guilty ; and, to show the
customs and feelings of Englishmen in the middle of the last
century, I add a short contemporaneous account of his exe-
cution, which was read then without any wonder or any
disapprobation :—‘ After he had hung six minutes he was cut
down, and, haying life in him as he lay upon the block to be
quartered, the executioner gave him several blows on his
breast, which not having the effect designed, he immediately
cut his throat; after which he took his head off; then ripped
him open, and took out his bowels and heart, and threw them
into a fire, which consumed them; then he slashed his four
quarters, and put them with the head into a coffin, and they
were carried to the new gaol in Southwark, where they were
deposited till August 2., when his head was put upon Temple
Bar, and his body and limbs suffered to be buried.” Chief
Justice Lee, and five other Judges, in the discharge of their
duty signed the warrant by which these revolting cruelties
were authorised.*
The next trial in which any question of law arose was
that of Alexander M‘Growther, a lieutenant in the Duke of
Perth’s regiment, which had formed a part of the Pretender’s
army. The prisoner stated, by way of defence, “that he
was a vassal of the Duke of Perth; that he was bound to
obey the orders of his superior; that, nevertheless, having
refused to do so, the Duke of Perth had threatened to burn
his house to the ground, and to lay waste all that belonged
to him, if he would not enter into the rebellion.” He ac-
cordingly called four witnesses, who deposed to those threats,
adding “that the Duke’s men had begun to bind him with
cords before he enlisted; that he yielded, to save himself from
ruin; and that by the custom of the country the vassal is
considered bound to execute the orders of his superior, what-
ever they may be.”
Lee, C.J.: “We cannot hear of any such custom. The King’s
subjects owe allegiance to the King alone, and are bound only
to obey the law. There is not, nor ever was, any tenure which
obliges tenants to follow their lords into rebellion. And as to
the matter of force, the fear of having houses burnt or goods
* 18 St. Tr. $29—352.
223
CHAP,
KEV
A.d. 1746.
An execu»
tion for
high
treason.
M‘Grow-'
ther’s Case,
224
CHAP.
XXXVI.
A.D. 1746.
The Kin-
lochs’
Case.
LIFE OF CHIEF JUSTICE LEE.
spoiled, or a slight injury to the person, is no excuse in the eye of
the law for joining and marching with rebels. The only force
that excuses is, a force leading to present fear of death, and this
force and fear must continue all the time the party remains with
the rebels. It is incumbent on every man who makes force his
defence, to show an actual overruling force, and that he quitted
the service of the rebels as soon as he could, — according to the
rule laid down in Oldeastle’s Case, 1 Hale, 50., that the prisoner
joined pro timore mortis et recessit quam cito potuit. But here
the prisoner pretends to prove force only on the 8th of August,
and he continued with the rebels and bore a commission in their
army till the surrender of Carlisle on the 30th of December.”
The jury, without going from the bar, found a verdict of
guilty. This prisoner, however, was reprieved and afterwards
pardoned.*
Alexander Kinloch and Charles Kinloch having pleaded
not guilty,—after their trial upon this plea had begun, insisted
that they were entitled to be acquitted, because they were
native-born Scotchmen, and by the articles of union between
Scotland and England Scotland was to retain her own laws,
so that they ought to be tried by the Court of Justiciary in
Scotland. The Judges ruled that this objection, if well founded,
could only be taken advantage of by plea in abatement to
the jurisdiction of the Court; and, in favour of life, they
allowed the jury to be discharged, the plea of not guilty to
be withdrawn, and the plea in abatement to be substituted
for it. ‘To this the Attorney General demurred, and the
point was argued at great length: —
Lee, C.J.: “ We are all of opinion that the birth, residence,
and apprehension of the prisoners in Scotland are facts perfectly
immaterial in the present case. So it would have been even at
common law; for at common law every man is triable, not where
he was born, resided, or was apprehended, but where the offence
was committed. Moreover, we are now sitting under a special
* Foster says, — ‘“ Many of the Scotch prisoners made the like defence,
and the same directions in point of law were given. The matter of fact, whether
force or no force, and how long that force continued, with every circumstance
tending to show the practicability or impracticability of an escape, was left to
the jury on the whole evidence.” (Foster, ch. ii. s. 8.; East’s Pleas of the
Crown, ch. ii. s. 15.; 18 St. Tr. 391—394 ) See likewise the trial of Fergus
M‘Ivor and Evan Dhu M‘Combick, which took place at Carlisle a few weeks
after. (3 Waverley, 300.)
LIFE OF CHIEF JUSTICE LEE.
act of parliament which gives us jurisdiction in all treasons with-
out any distinction of persons or localities.”
The plea in abatement being overruled, the prisoners again
pleaded not guilty; and, being tried by another jury, were
convicted on clear evidence, for they had taken a very active
part in the Pretender’s invasion of England. But they
moved, in arrest of judgment, that the conviction was un-
lawful, as the Court had no power, even with their consent
and at their request, to discharge the first jury; and that
being once given in charge to that jury, they could not law-
fully be tried by any other. When the question was argued
before the twelve Judges, the counsel for the prisoners gave
instances in which the assumed power of discharging the
jury, after the commencement of the trial, had been abused
to the oppression of the subject; and relied upon a dictum of
Lord Holt, that “in criminal cases a juror cannot be with-
drawn but by consent, and in capital cases it cannot be done
even with consent.”
Lee, C. J.: “ With the exception of my brother Wright, we
are all of opinion that the conviction is regular, and that sentence
of death must be passed upon the prisoners. The rule that a trial
once begun must proceed to a conclusion before the same jury,
cannot bind in cases where it would be productive of manifest
injustice or great hardship to the prisoner. In the present case,
the objection urged by the prisoners of our want of jurisdiction
might have turned out to be well founded; but it could not have
been taken advantage of under the plea of not guilty. Liberty
was therefore given to them to withdraw that plea. When with-
drawn, the jury had no issue to try, and must therefore of
course be discharged. Consequently they have no right to com-
plain of that which was a necessary consequence of an indulgence
shown them by the Court. ‘The authority of Lord Holt is high ;
but Lord Hale says, ‘In case a man in a phrensy happen by
some oversight to plead to his indictment, and put himself upon
his trial, and it appeareth to the Court upon his trial that he is
mad, the judge in discretion may discharge the jury, and remit
him to gaol, to be tried after the recovery of his understanding.’ ”
Wright, J.: “I admit that the discharging of the jury in the
present case was an instance of great indulgence to the prisoners ;
but I think it is safer to adhere to a general rule, than on any
VOL. II. Q
226
CHAP.
XXVI.
A.D. 1746,
Sir John
Wedder-
burn’s
Case,
LIFE OF CHIEF JUSTICE LEE,
account to establish a power in judges which has been grossly
abused and may be again. The policy of the law of England,
and, indeed, the true principles of all government, will rather
suffer many private inconveniences than introduce one public
mischief. I consider the trial by the same jury which is sworn
and charged with the prisoner as part of the jus publicum, as
a sacred depositum committed to the judges which they ought to
deliver down inviolate to posterity.”
The usual sentence in cases of high treason was accordingly
passed upon the prisoners, but the difference of opinion in
the Court saved their lives, and they were pardoned on con-
dition of being sent abroad.*
The last trial under this special commission was that of
Sir John Wedderburn. The Government had resolved to
make an example of a non-combatant, and indicted him for
high treason, although he had not mounted the white
cockade, and he never carried any arms but a small sword,
then worn by every private gentleman. But it was proved
that he accepted the appointment, under the Pretender, of
collector of excise, and that accordingly he did collect the
excise in several places where the rebel army lay. His
counsel objected that this evidence did not support the in-
dictment; but Lord Chief Justice Lee declared the opinion
of all the Judges, that collecting money for rebels is an overt
act of high treason. The prisoner was convicted, and exe-
cuted as a traitor on Kennington Common. ft
When the rebel peers were tried before the House of
Lords, Chief Justice Lee and the other Judges attended
as assessors, but only one point of law was referred to
them, — “ whether the dates given to the overt acts of trea-
son in the indictment were material?” —and Lee, as the
organ of his brethren, explained to the astonished Scotch
this mystery of English procedure, that “time and place
must be laid in the indictment with certainty, but that
evidence may be admitted to prove the offence to have been
* 18 St. Tr. 395—416.
t+ Ibid. 425. When a boy I knew his son, who was called Sir John Wed-
derburn, although the baronetey had been forfeited by the attainder. He
too had been “out in the 45,” and he told very marvellous stories of his
adventures,
LIFE OF CHIEF JUSTICE LEE.
committed at any other time or any other place within the
same county.” *
Lord Chief Justice Lee, notwithstanding his defective
elocution and very limited acquirements, got on pretty
well in the discharge of the duties of his high office, till he
broke down in the trial of a prosecution for libel ordered by
the House of Commons; after which he lost all authority,
and experienced constant mortification. William Owen, a
bookseller, having published a pamphlet which severely and
justly censured the conduct of the House of Commons in
committing to Newgate the Honourable Alexander Murray
because he refused to fall down on his knees before them,
an address to the Crown was carried, with a foolish unani-
mity, that the Attorney General should be directed to pro-
secute the publisher. Sir Dudley Ryder accordingly filed
a criminal information against Owen, and, at the trial, in-
sisted that he was entitled to a verdict of guilty on merely
proving that a copy of the pamphlet had been sold by the
defendant. But he was encountered by Pratt (son of the
Chief, and afterwards Lord Camden), who strenuously in-
sisted that as, in an indictment for an assault with intent to
ravish, the intention must be proved, or there must be an
acquittal, so here the jury must consider whether the zn-
tention of the writer was to defame the representatives of the
people, or, by exposing and correcting their errors, to render
them more respectable and useful ?
The Chief Justice was much shocked by this doctrine,
but he had not the art which enabled Lord Raymond to
combat it successfully, and which was afterwards exhibited
more strikingly by Lord Mansfield against the publishers of
Junius. In summing up, without attempting to take off
the effect of the popular arguments urged for the defendant,
he drily said, “ The publication of the pamphlet being thus
proved, and, indeed, not being denied by the defendant, I am
of opinion that you are bound to find him guilty. I have
ever supported the principles of liberty established at the
Revolution, but I must keep juries to questions of fact.
* 18 St. Tr. 442—858. : : :
+ I am surprised he did not inform them that “he came in with King Wil-
liam, and therefore had always been a good Whig.”
Q 2
227
CHAP.
XXVI.
ASD. L752
Signal de-
feat of
Chief Jus-
tice Lee
in a trial
for libel.
228
CHAP.
XXXVI.
A.D. 1753.
Chief Jus-
tice Lee
Chancellor
of the Ex-
chequer.
March 3.
1754,
LIFE OF CHIEF JUSTICE LEE,
Whether the pamphlet be a libel, is matter of law; if it be
not, the defendant might have demurred to the information,
or may, after your verdict of guilty, move in arrest of judg-
ment or bring a writ of error.” The jury withdrew, and
when they returned, after having been absent two hours, the
following scene was enacted : —
Clerk of the Court: “ Gentlemen of the jury, are you agreed
on your verdict? Is the defendant guilty or not guilty?” ore-
man: “Guiry!” Chief Justice: “ You could not do otherwise.”
Jurymen: “No! no! my Lord! it is all a mistake, — we say
Nor Gumuty.” Foreman: ‘“ Yes, my Lord, it was a mistake; I
meant to say Nor Guiry.” Bystanders: “ Huzza! Huzza! !
Huzza!!!” Attorney General: “ My Lord, this must not be; I
insist on the jury being called back and asked their opinion upon
the only question submitted to them.” Chief Justice: ‘* Gentle-
men of the jury, do you think the evidence laid before you of
Owen’s publishing the book by selling it is not sufficient to con-
vince you that the said Owen did sell this book?” Foreman:
“ Nor Guitty! my Lord ; Nor Guirty!” Juryman: “Yes, my
Lord, that is our verdict, and so we say all.” The rest of the Jury:
“ So we say all, so we say all.”
There was a prodigious shout of applause in Guildhall,
and at night there were bonfires in the streets to celebrate
the triumph over an unpopular House of Commons. *
A degree of ridicule was now attached to Lee’s name, and
he found his position very uncomfortable; for not only would
juries often find verdicts contrary to his direction, but the
bar paid little deference to him, and even his puisnies were
too apt to show that they considered themselves his betters.
Some legal chroniclers, not familiar with official usages,
have said that under these circumstances, like his predecessors
in the reigns of Charles I. and James I., he meant to quit
law for politics, and that he accepted the office of Chancellor
of the Exchequer. This fact is literally true. The seals of
Chancellor of the Exchequer were indeed handed over to him
on the 3d of March, 1754, and they remained in his possession
till within a few days of his death. He was appointed, however,
only under the immemorial custom that when the office of
* 18 St. Tr, 1203.; post, Life of Sir Dudley Ryder.
LIFE OF CHIEF JUSTICE LEE.
Chancellor of the Exchequer suddenly becomes vacant, and
a difficulty arises about effectively filling it up, it is nomi-
nally held ad interim by the Chief Justice of the King’s
Bench for the time being, who does the formal acts neces-
sary for the progress of business in the Exchequer. On the
sudden death of Mr. Pelham, Lord Chief Justice Lee held
the seals of Chancellor of the Exchequer till the nomination
of Mr. Legge; but in this capacity he never did anything
more than sign his name or seal a writ, and the Duke of
Newcastle had as little thought of introducing him into the
new Cabinet as of making him Archbishop of Canterbury. *
The time was at hand when Lee was to be freed from the
irksomeness of his position by being transferred to a better
world. His health and spirits having been some time de-
clining, on the evening of Wednesday, the 3rd of April,
1754, he was struck with apoplexy, and, early in the morning
of Monday, the 8th of the same month, he expired, in the
sixty-sixth year of his age, and the seventeenth of his Chief
Justiceship. He was buried at Hartwell, where a handsome
monument has been erected to his memory.
There have been recently given to the world very copious
extracts from a sort of diary that he kept, under the title of
** Miscellanea,” and from entries made by him in a succession
of almanacs which he carefully preservedf; but these are
perused with much disappointment. ‘They might have con-
tained some lively sketches of his own adventures, and some
amusing anecdotes of his contemporaries, although we could
not have expected in them much profundity of thought or
brillianey of fancy ; but they consist chiefly of legal antiqui-
ties with which almost every one is quite familiar, and of
dull observations on dull books which he had read.t He
* One learned author has even suggested that the fact of Lee * filling the
office of Chancellor of the Exchequer as well as of Chief Justice might have
been the reason of his remaining a Commoner ; ”—as if he had been in the habit
of opening the Budget in the House of Commons. (Harris’s Life of Lord
Hardwicke, iii. 517.),
+ Law Magazine, xxxviil. 217., xxxix. 62.
+ There are some historical notices likewise, showing that my Lord Chief
Justice was very little acquainted with events which had happened before his
own birth and the coming in of King William: ec. g. “It appears by the letters of
a 3
229
CHAP.
XXVI.
A.D 1754,
Death of
Chief Jus-
tice Lee.
His diary
and alma-
nacs.
230
CHAP.
XXVI.
LIFE OF CHIEF JUSTICE LEE.
seems to have been a believer in the old theory of medicine
founded on radical heat and radical moisture, and to have
paid great attention to the directions of almanac-makers
respecting diet and blood-letting. Thus he says, under date
* October, 1737.— Dr. Cheney told me that the Bath waters
were the best remedy he knew for the stomach, or for vapours
arising from too great coldness of blood; and wherever there
was not sufficient calidum naturale, he knew no outward help
equal to them. He laid down the rule that to hot blood
cooling waters should be applied.” His almanac was “ Rider’s
British Merlin, adorned with many delightful and useful
verities, fitting all capacities in the islands of Great Britain’s
monarchy ; with notes of husbandry, &c. Compiled, for his
country’s benefit, by Cardanus Rider.” The following very
wholesome precepts of this sage were particularly valued by
the Chief Justice : — “ It’s hurtful to fast long. Use meats
that are moderately hot; for the best physic is warm diet,
warm clothes, and a merry, honest wife. Consult with your
tailors as well as physicians. Let a warm fire, and a cup of
generous wine or good October beer, be thy bath; the
kitchen thy apothecary’s shop; hot meats, and broth, thy
physic; and a well-spread table the proof of thy charity to
thy poor neighbour.”
Notwithstanding all these precautions, he was very nearly
cut off when attending the Old Bailey sessions, in May,’
1750. The gaol fever then raged in Newgate, as in other
prisons, and (what was no uncommon occurrence in those
times) it was communicated, by the prisoners brought into
court for trial, to the judges, the jurymen, and the witnesses.
He escaped, though exposed to the contagion ; but Mr. Justice
Abney, and many others, perished. He made a sharp re-
monstrance to the Lord Mayor and aldermen of London, and
preventives were introduced which are still kept up at the
Old Bailey —such as fumigating the court several times a
D'Estrade that Lord Clarendon advised the sale of Dunkirk, and that Lord
Clarendon was also extremely averse to the Presbyterians, who by that history
appear to have behaved very well, and to have been for the Restoration.” He
thinks it was unknown, before the publication of these letters, that Lord Cla-
rendon had any thing to do with the sale of Dunkirk, or behaved with ingrati-
tude and bad faith to the Presbyterians,
LIFE OF CHIEF JUSTICE LEE.
day by means of a hot iron plunged in a bucket filled with
vinegar and sweet-smelling herbs.*
Valuing above all things “a merry, honest wife,” soon after
he had lost his first — Anne, daughter of John Goodwin, Esq,,
of Burley, in the county of Suffolk,—he married, secondly,
Margaret, daughter of Roger Drake, Esq., and relict of
James Melmoth, Esq., who, on the authority of Lord Hard-
wicke, was “an agreeable lady, with 25,0002. fortune.” f
But he himself records this event with wonderful brevity, for,
in his almanac for 1733, after writing “Six bushels of oats
for four horses per week; hempseed good in their corn;
walking them in dewy grass in the morning, very good: for
rheumatism, elder tea,” —he only adds these words: “I MAr-
RYED TO Mrs. M. M.” (meaning Mrs. Margaret Melmoth).
He lived happily with her till May, 1752; but he makes no
further mention of her, living or dead.
It may alarm some who complacently exult in their present
consequence, and confidently calculate on enjoying a lasting
reputation, to know that Chief Justice Lee not only con-
sidered himself, but was considered by many in his own day,
to be a great man. He was frequently a dedicatee, and the
dedicators ascribed to him every virtue under heaven. Even
after his death, when he could no longer give away master-
ships or clerkships, nor encourage nor frighten young bar-
risters by his smile or his frown, thus wrote Sir James
Burrow —a very able man, afterwards the reporter of
Mansfield : —
«“ He was a gentleman of most unblemished and irreproachable
character, both in public and in private life; amiable and gentle
in his disposition ; affable and courteous in his deportment ; cheers
ful in his temper, though grave in his aspect ; generous and polite
in his manner of living; sincere and deservedly happy in his
friendships and family connections; and to the highest degree
upright and impartial in the distribution of justice. He had been
a Judge of the Court of King’s Bench almost twenty-four years ;
and for near seventeen had presided in it. In this state the in-
tegrity of his heart and the caution of his determination were so
* Gentleman’s Magazine, xx. 333.
{ Harris’s Life of Lord Hardwicke, i. 233.
Qa4
231
CHAP.
XXXVI.
Chief Jus-
tice Lee’s
greatness
in his own
- time.
His éloge by
Sir James
Burrow.
232
CHAP.
XXVI.
Chief Jus-
tice Lee’s
MSS.
LIFE OF CHIEF JUSTICE LEE.
eminent, that they probably never will, perhaps never can be,
excelled.” *
Sir James has been laughed at for concluding with this anti-
climax :—‘* He was peculiarly master of that sort of knowledge
which respects the settlement of the poor;” but I doubt very
much whether the legal hero thus extolled would not himself
have been gratified by the panegyric.
Lord Chief Justice Lee is now represented by his great-
grandson, the very learned civilian, Dr. Lee, who has inherited
Hartwell and the other large estates of his family.+
* Burrow’s Settlement Cases, p. 328. 4to. 1768.
+ Since I finished the above little memoir, by the kindness of Dr, Lee (for
which I am most grateful) I have had an opportunity of perusing all the Chief
Justice’s MSS., amounting to above 100 volumes; but I have been unable to
extract any thing from them for the instruction or amusement of the reader.
They prove the extraordinary industry of the compiler during the whole course
of his long life. His common-place book is stupendous, and he had digested
reports of an immense number of cases decided while he was a student and at
the bar. Beyond his own profession he appears to have had some taste for
metaphysics, and he copies passages from Locke, Hobbes, and Bishop Berkeley ;
but in the whole mass I can find nothing original, either grave or gay. His
note-books from the time he was made a judge, both in civil and criminal
trials, are extant, without any incident being recorded in them, or any remark
being made on the counsel who pleaded before him. None of the letters he re-
ceived are preserved, and there is the draught of only one letter written by him.
This was to Lord Hardwicke, and describes the writer’s growing infirmities :—‘ As
to my present state of health,” says he, “it is but low, and JI cannot walk at all
without help. What my future condition will be, Godonly knows. But as long
as I exist I trust and hope the consciousness I have of your Lordship’s judgment
and integrity will remain; and may your counsels long, very long, flourish, is
the most sincere wish of your Lordship’s most humble servant, W. Lex.”
LIFE OF CHIEF JUSTICE RYDER. 233
CHAPTER XXVIII.
LIFE OF CHIEF JUSTICE RYDER.
I HAVE one other dull Chief Justice of the King’s Bench to CHAP.
take in hand, but I am comforted by the recollection that he Bert
was immediately succeeded by the most accomplished Com- g.. Dudley
mon Law Judge who presided in Westminster Hall during Ryder.
the eighteenth century. Although Srr DupLey RypEr
was eminent in his profession, as well as a man of spotless
character, his career was without any stirring incidents; he
was not distinguished either in literature or politics, and his
intimacies were chiefly with men as insipid as_ himself.
Unluckily for his biographer, he not only never excited
much admiration in public life, but he did no act deserving
of severe censure, and nothing dishonourable was even im-
puted to him. Yet I cannot pass over in silence a man who
filled the important office of Attorney General much longer
than any of his predecessors or successors, who was for many
years the colleague of Mansfield, who ranks among the Chief
Justices of England, whose patent of peerage was signed
when he was suddenly snatched away, and whose death pro-
duced a very memorable crisis in the party history of our
country.
The Ryders are all said to be descended from the ancient
family of Rythre, which was seated for many ages at Rythre,
in the hundred of Barkston, in the county of York; but
the line we are considering cannot be distinctly traced higher
than the Reverend Dudley Ryder, who, in the beginning of
the seventeenth century, was a nonconformist minister at
Bedworth, in the county of Warwick. Although a zealous
Puritan, he was not without worldly ambition; and he pro-
phesied that in his descendants thy name of Ryder would
recover and exceed its ancient splendour. He did not live
His origin.
234
CERAIE.
XXVITI,
His edu-
cation.
LIFE OF CHIEF JUSTICE RYDER.
to see the fulfilment of this prophecy, but one of his grand-
sons was Archbishop of Armagh, and another was Chief
Justice of England. In the first generation after him there
was no appearance of such an elevation, for his two sons,
John and Richard, were both tradesmen. John, the father
of the Irish Primate, kept a haberdasher’s shop at Nuneaton,
in Warwickshire. Richard, the father of the Chief Justice,
was a mercer in West Smithfield, in the city of London.
A. love of learning, however, was still hereditary in the
family; the Reverend Dudley’s library was divided among
his descendants, and they were remarkable for intelligence
as well as sobriety of manners.
Sir Dudley, whose career we are now to follow, was the
second son of the mercer, and was born in the year 1691.
He is the first Englishman I read of who laid the foundation
of future eminence at a Scotch University ; being in due time
to be followed by an illustrious band of successors, including
Lord Melbourne and Lord John Russell. After a tolerably
good school education at a dissenting academy at Hackney,
he studied some years at Edinburgh, which was then rising
into celebrity from the eminence of its professors. Being
destined to the profession of the law, he followed the custom,
which he found then almost universal among Scotchmen who
were to pass as advocates, of going to Leyden to be initiated
in the Roman civil law. Both there and at Edinburgh he
enjoyed the opportunity, which was still much prized by his
family, of having the Gospel preached and its rites ad-
ministered in true Genevese presbyterian purity. When
mixing in after-life with those who had been bred at the
English public schools and the English universities, and who
were perpetually talking of these seminaries as if there were
no valuable knowledge to be acquired elsewhere in the world,
he sometimes regretted, for the sake of being on an equal
footing with them in conversation, that he had not fagged or
been fagged by some of them at Eton, nor joined in their
boasted bacchanalian exploits at Oxford; but he felt that he
had amassed a greater stock of valuable knowledge than most
of them, and that, having lived with those who like himself
were a little pinched by penury, he had acquired habits of
LIFE OF CHIEF JUSTICE RYDER.
reflection, of self-denial, and of persevering industry which
would enable him to outstrip those who for the present
superciliously affected a superiority over him.
After entering as a student at the Temple, notwithstanding
his high veneration for the memory of his grandfather, the
Puritan pastor, he joined in communion with the Episco-
palians, being of opinion that forms of ecclesiastical govern-
ment were left by our Blessed Saviour to be adapted to the
exigencies of different societies, and that the enlightened and
tolerant Church of England, respected and beloved by the
great majority of the inhabitants of this country, was then to
be preferred to the Presbyterian persuasion, which had fallen
off both from the orthodoxy and the learning which had
distinguished it in the times of Calamy and Baxter.*
Having been called to the bar by the Society of the
Middle Temple, he soon afterwards transferred himself to
Lincoln’s Inn. In due time he was elected a Bencher and
Treasurer of this Society, and he became much attached to
it.t Although from his first start he was always advancing,
so noiseless was the tenour of his way that we read little
more respecting him till he was about to be appointed a law
officer of the Crown. His rise was chiefly to be ascribed to
the friendship of Lord King, who, like him, was the son of a
tradesman, had studied at Leyden, had been brought up
among Dissenters, and, taking to the profession of the law,
had conformed to the Established Church. By this powerful
patron he was introduced to Sir Robert Walpole, who had
the sagacity to discover his serviceable merit, and resolved to
employ him.
Accordingly, in the move which took place on the pro-
235
CHAP,
XXVII.
May 8,
1719.
July 8.
1725.
He is
called to
the bar,
He is made
motion of Talbot and Yorke to be Chancellor and Chief Solicitor
Justice of the King’s Bench, Ryder was made Solicitor
General.
I do not recollect any lawyer of great eminence whose early
* The English Presbyterians were then passing through Arianism to the
Socinianism or Rationalism which they reached about the middle of the 18th
century,
t It appears from the books of Lincoln’s Inn, that he was admitted of that
Society, Jan. 26. 1725 ; invited to the Bench, Jan. 23. 1733; elected Treasurer,
Nov. 28. 1734; and made Master of the Library, Nov. 28. 1725. The last
council he attended was on Feb, 12, 1754,
General.
Nov. 1733.
236
CHAP.
XXVII.
Descrip-
tion of
Dublin and
the Irish
bar in the
beginning
of the 18th
century.
LIFE OF CHIEF JUSTICE RYDER.
career presents such a blank. There is no tradition of any
great speech by which he forced himself into business, or of
any vicissitudes of good or evil fortune which he experienced.
Even when promoted to his present office, we know little of
his companions or of his mode of life. One friendship he
had, with Mr. Bowes, a brother barrister, who, having accom-
panied West, the Irish Chancellor, as secretary, was called
to the bar in Ireland, and, having been successively Solicitor
General, Attorney General, and Chief Baron in that island,
at last himself became Irish Chancellor and an Irish Peer.
A constant epistolary correspondence was kept up between
them. Bowes’s letters are preserved, and some of them are
very curious. ‘The first which I select was written soon
after his arrival, and gives an amusing account of the man-
ners of Dublin —a city which was then as distant from
London as New York now is. A lawyer is particularly
struck by perceiving that, for advancing a favourite, prac-
tices were formerly permitted in our profession which with
us would be reprobated, and which, if attempted, would be
very injurious to the person intended to be benefited.*
* Dublin, Oct. 9. 1725.
“ Dear Sir, — It is four weeks since I arrived here, in which
time you might expect a tolerable account of the success of my
project ; but, in fact, I am as incapable of forming a judgment on
that head as when I first came on shore.
“ When I tell you the people here are French in all respects
but their language, you will admit I ought not to depend upon
general civilities. In England a man might flatter himself with
success from a like reception, but here time only can disclose the
event of this undertaking. Iam, indeed, retained in upwards of
twenty causes, the fees of which I have placed on the debtor side
of my account with the Chancellor, for I consider them as com-
pliments paid to him, and as to myself hope they will prove the
means of showing me in business. Though I cannot appear in
business till I am called to this bar, yet I constantly attend the
seals, which are here opened every Thursday during the vacation,
at which time the Chancellor answers petitions in public, and in
that manner dispatches the ordinary motion business of the Court
* If it be discovered that letters have been circulated soliciting briefs for a
beginner on his first circuit, he is sentenced to silence during the whole of that
circuit, without any evidence of complicity.
LIFE OF CHIEF JUSTICE RYDER.
(a method introduced for the benefit of the secretary). How-
ever, counsel are feed in all matters of consequence, by which
means I have already heard most of their great men, who I can
assure you, excepting one or two, would not appear so in Eng-
land; but I will not as yet pretend to give the history of the pro-
fession in this kingdom, though I believe it may hereafter furnish
matter for a very entertaining letter.
“The Chancellor omits no opportunity to apprise the people
here of his friendship for me, and by his means I have received
civilities from most of the persons of distinction in this city.
“The CastLe is the St. James’s of this place, where my Lord
Carteret every morning plays the king and supports the character
to admiration ; and twice a week my Lady makes her appearance
in the drawing-room, which for beauties (in proportion to their
numbers) exceeds England. As to myself the Court here is more
entertaining than that of England, as it is more agreeable to be
one of the company than a spectator ; my Lord and Lady having
always done me the honour of talking with me in public,
«« My present way of living is almost the reverse of what it was
in England. I dress every day, visit ladies in a morning, receive
compliments in form, and never stir withouta chair; in short, I
am frightened at my own appearance, and think I have more pre-
tensions to the beau than man of business; but they comfort me
and say ‘it is the way of the place.’ I have almost gone the round,
and when that is over I will by degrees sink into my old way.
*« The profuseness of the people in eating and drinking is most
amazing, and may properly be called the national vice. It is no
uncommon thing here for people, in a literal sense, to eat them-
selves out of house and home. Six dishes is the meanest table
you sit down at, and entertainments have seldom less than fifteen.
The wine is light and agreeable, but would not be esteemed in
England; and if you go to the expense of the fullest wines you
will save nothing by fetching them from this place.
“ Dear sir, accept this as a first visit after long absence, where
the conversation is perplexed by a variety of subjects; but I hope
we shall often meet in this way, that our future familiar letters
may sometimes deceive me and make me forget the distance by
which I am separated from my friend.
“Tam, dear sir, yours, &c.
“ J. Bowes. *
« Pray inclose your letters to me under cover to the Chancellor.”
* This conclusion seems very cold; but at other times he says —
237
1 CHAP:
XXVIT.
238
CHAP.
XXVIT.
REIGN OF GEORGE II.
In 1733, Mr. Bowes had become Solicitor General in
Treland, and he thus addresses his old friend: —
“ 24th September.
“ T take it for granted there will be removes in the law in Eng-
land before the next term, and it gives me great pleasure to hear
from all hands that Mr. Ryder will be my elder brother.”
This promotion having taken place, and Mr. Ryder having
married on the strength of it, he received, somewhat tardily,
the following congratulations from Mr. Bowes: —
“ Dec. 21. 1783.
“ Were you sensible of the fatigue I have undergone this
session of parliament, you would readily excuse my neglect in not
congratulating you sooner upon your marriage, promotion, and
(what more affects me) the recovery of your health. Besides, I
flatter myself you want not such proofs to convince you of my
regard for your welfare and prosperity.”
The next year Bowes wrote the following letter to Ryder,
in reference to the custom which then prevailed of trans-
mitting every Irish bill to London for the opinion of the
English Attorney and Solictor General before it was al-
lowed to pass* : —
“ April 30. 1734.
“ Yesterday put an end to our tedious and troublesome ses-
sion of parliament, in which I am sorry Mr. Attorney and you
had so large a share. Perhaps experience may reconcile you to
Sir Edward Northey’s rule, who used to say he had no farther
business with Irish bills but to take care of the King’s prero-
gative and the interest of the mother country. I heartily rejoice
to hear that you have got safe through the great fatigue of this
winter, and hope by the time I can see London you will be so far
at leisure as to admit of an hour’s chat with an old friend.”
Ryder had another professional friend, Mr. Wainwright,
who was sent over to Ireland as a Puisne Judge, and from
‘“« Most affectionately yours,”
and ‘Your most affectionate and faithful friend and servant.”
* Among the forms handed over to me when I was appointed Attorney Ge-
neral, was one to this effect: —“ I hereby certify that I have perused this bill,
passed by the two Houses of Parliament in Ireland, and am of opinion that it
contains in it nothing repugnant to the law of England.”
LIFE OF CHIEF JUSTICE RYDER.
whom he received the following amusing account of Irish
duels and of Irish juries: —
“ Dublin, Aug. 3. 1733.
“ Hitherto, Dublin has been, in comparison of what it is now,
like London in a long vacation compared with itself when the
parliament is sitting. Now the ladies flock to town, and show
that there are beauties in Ireland. ‘The Court here is very gay,
and the Judges have as large a share of all public and private
diversions as they please. These relish very well after a circuit
of 500 miles in a very wild country where all the beautiful scenes
of nature are accompanied with some horrors like the pictures of
Salvator Rosa. [After describing a gigantic race of peasanty
he had met with in Connaught, he proceeds:] These are a quiet
civilised generation; but there is a strange alacrity to push among
those who are just one degree removed from the common people.
These gentlemen are much given to quarrel at assizes, and one
part of our business is to bind them to their good behaviour. I
think this noble science has left the capital, and is got now into
the remote parts of the kingdom, where the fencing masters (who
ought to be transported as vagabonds) teach schools. I tried,
this summer, two of the scholars for as flagrant a duel as ever
came before a court. If all the jury had been by when the
challenge was carried, or at the place of battle (as many spectators
were), and saw each man kill his adversary, they would never
have found them guilty of the murder. But I was surprised to
find them persist in bringing in their verdict ‘ MANSLAUGHTER
SE DEFENDENDO. ‘This they would do, that the prisoners might
be free to fight again.”
Four years having obscurely glided on, Ryder was pro-
moted to be first law officer of the Crown, when Willes, the
Attorney General, was made Chief Justice of the Common
Pleas.
Mr. Attorney Ryder devoted all his energies to the duties
of his office, which he performed most admirably. Although
a quarter of a century in the House of Commons, he never
mingled in debate except to explain some point of law.
Ever faithful to the prime minister for the time being, he
engaged in no political intrigues, and, like the royal master
whom he served, he “hated painters and poets,” so that
no attractive name is introduced in describing scenes in
which he took a part. His energies were never called forth
239
CHAP.
XXVITI.
A.D. 1733.
Irish judges
and juries,
Hil. Term,
LIST.
Sir Dudley
Ryder is
made At-
torney
General,
KD io
His speech
for the bill
to dis-
franchise
the city of
Edin-
burgh.
REIGN OF GEORGE II.
by any personal conflict, or any distinct complaint of his
official conduct. Though the Jacobites grumbled a little,
because he appeared so often against their leaders, they
never attempted to charge him with the indecent bullying of
former days, nor with straining the enactments of the law
against them ; so that his friends were not called upon to sound
his praises. Hence the lasting light often struck out in the
collision between the attack and defence of public men is here
entirely wanting. Yet he was certainly a person of great im-
portance in his own time; he never stirred out, even to pass
between his house in Chancery Lane and his villa at Streat- .
ham, without a coach-and-six, and he was the admiration or
envy of two generations of lawyers.
A few of his performances in parliament and at the bar
are commemorated by contemporary writers, and these it
will be my duty shortly to notice.* Soon after he was made
Attorney General he had to conduct through the House of
Commons the Bill to punish the city of Edinburgh for the
murder of Captain Porteus; and the following speech is re-
ported or invented for him by Dr. Johnson : —
“ Sir, the bill now before us I will venture to say isa bill that at
this juncture must greatly contribute to the peace and tranquillity
of this nation. The spirit of disaffection and riot seems to have
gone abroad; and if a timely and effectual stop is not put to it by
a vigorous interposition of the legislature, no gentleman can be
bold enough to say where it may stop. In the chief city of one
part of the United Kingdom it has already left too many proofs of
its fatal tendency, and how soon it may communicate itself to the
other I tremble to imagine. The Upper House, sir, has already
set us the example in what manner we ought to treat, and in
what manner we ought to punish, such unheard-of insolence and
barbarity. I hope, sir, we never shall be upbraided with being
cold in seconding their zeal; I hope, sir, that it never shall be
laid to the charge of a British House of Commons that it has been
remiss in resenting an insult upon all law and majesty, while
British Peers have been forward in vindicating both. It is true
that the charge against the provost and citizens of Edinburgh con-
sists chiefly in their neglecting to prevent the tumult before it
happened ; in their neglecting to suppress it after it had happened ;
* He sat for Tiverton, and established an interest in this borough which gave
his family the command of it till the passing of the Reform Bill in 1832,
LIFE OF CHIEF JUSTICE RYDER.
and in their neglecting to discover, apprehend, and secure those
who were guilty of an audacious riot and of a cruel murder. But
this charge which is the foundation of the bill is not to be con-
sidered as negligence only; for he who does not prevent a crime
which he might and ought to have prevented, has always in law
been looked upon as morally and legally guilty of that very crime.
But it has been proved that the magistrates and citizens of Edin-
burgh might and ought to have prevented this insurrection, might
and ought to have suppressed it, and might and ought to have dis-
covered, apprehended, and secured the rioters and murderers.
Therefore, they are answerable for the crimes which have been
committed ; and the punishment to be inflicted upon them by this
bill is mild and merciful.” '
Nevertheless the resistance to it was so great, that all the
stringent clauses which it contained were struck out, and it
ended in imposing a fine for the benefit of Captain Porteus’s
widow, who had been promoted from presiding in his kitchen
to preside at his table; “so that it merely converted a poor
cook-maid into a rich lady.”*
In a debate on the question whether the House of Com-
mons should proceed in a summary manner to punish by its
own authority the printer of a libel, or should direct him to
be brought to trial before a jury, Mr. Attorney General
Ryder said, —
‘« Sir, whence so much tenderness can arise for an offender of
this kind I am at a loss to discover ; nor am I able to discover
any argument that can be produced for exempting from instant
punishment the printer of a paper which has already been de-
termined by a vote of this House to be a scandalous libel tending
to promote sedition. It has, indeed, been agreed, that there are
contained in the paper some true propositions, and some passages
innocent, nay, rational and seasonable. But this, sir, is nothing
more than to say, that the paper, flagitious as it is, might have
been swelled to a greater degree of impudence and scurrility ; that
what is already too heinous to be borne, might by greater viru-
lence become more enormous. If no wickedness, sir, is to be
checked till it has attained the greatest height at which it can pos-
sibly arrive, our courts of criminal judicature may be shut up as
useless ; and if a few innocent paragraphs will palliate a libel, trea-
son may be written and dispersed without danger or restraint ; for
what libel was ever so crowded with sedition, that a few periods
* 10 Parl. Hist. 274.
VOL. II. R
241
CHAP.
XXVITI.
AD biota
A.D. 1740.
His speech
in support
of a motion
in the
House of
Commons
for the
summary
punishment
of a libeller.
242
CHAP:
XXVITI.
A.D. 1740,
A.D, 1741.
His speech
in favour
of impress-
ment,
REIGN OF GEORGE II.
might not have been selected which, upon this principle, might
have secured it from censure? This paper was circulated among
the representatives of the people as they entered this House, under
the specious pretence of giving them useful information; but the
danger of preventing intelligence from being offered to us does
not alarm me with any apprehensions of disadvantage to the
nation, for 1 have not so mean an opinion of the wisdom of this
assembly as to suppose that it requires such aids from officious
instructors, who ought, in my opinion, sir, rather to be taught by
some parliamentary censure to know their own station, than to be
encouraged to neglect ther proper employments for the sake of
directing their governors. When bills, sir, are depending by
which either the interest of the nation or of particular men may be
thought to be endangered, it is, indeed, the incontestable right of
every Briton to present his petition at the bar of this House, and
to specify the reasons on which it is founded. ‘This is a privilege
of an inalienable kind, which is never to be denied or infringed ;
and this may always be supported without encouraging anony-
mous intelligence, or receiving such papers as the authors of them
are afraid or ashamed to own, and which they, therefore, employ
meaner hands to distribute.”
The parties were summoned to the bar, and committed for
a breach of privilege. *
A bill having been brought in “ for the better manning of
the Navy,” which gave very objectionable powers to Justices
of Peace to authorise the impressing of seamen by constables,
it met with strong opposition; some members denying the
right of impressment altogether, and proposing that bounties
should be given to induce the voluntary enlistment of seamen
in the navy : —
Mr, Attorney General Ryder : “ Sir, the practice of impressing,
which has been declaimed against with such vehement exag-
gerations, is not only founded on immemorial custom which makes
it part of the common law, but is likewise established by our
statutes. _ Why is it, therefore, to be considered illegal or uncon-
stitutional? Upon an emergency, all must serve by land as well
as by sea; and when the royal standard is erected in the field, all
the King’s subjects are bound to repair to it and to fight under it.
This practice, which is as old as the constitution, may be revived
at pleasure, and rests on the same foundation as the impressment
of seamen. The safety of the state is the supreme law, which
* 11 Parl. Hist. 887.
LIFE OF CHIEF JUSTICE RYDER.
must be obeyed. As to the proposed bounties, they would be
wholly ineffectual, impressment must still continue, the apparent
hardships of the system would be aggravated, and you would have
a much less powerful navy at a much greater cost to the state.”
However, Sir Robert Walpole, seeing that the measure
was so unpopular that it might precipitate his downfall,
wisely abandoned it; and although a bill passed “for the
better manning of the Navy,” all the obnoxious clauses were
withdrawn from it.*
When Prince Charles Edward was about to engage in his
chivalrous expedition, which for a time promised so favour-
ably, and which terminated so disastrously, Mr. Attorney
General Ryder introduced into the House of Commons the
bill for suspending the Habeas Corpus Act. But we are
only told that, “after enlarging on the present dangerous
situation of affairs in this country, when not only a foreign
invasion but domestic troubles were to be provided against,
he said, that, fully convinced as he was of the importance of
that invaluable law for the preservation of our liberties, he
should as soon have cut off his right hand as stand up to
make that motion, if he were not fully persuaded that it was
absolutely necessary to secure all the invaluable blessings
which we enjoyed.” f
His greatest effort seems to have been his defence of Lord
Hardwicke’s bill attainting the sons of the Pretender should
they land in Great Britain or Ireland; making it high
treason to correspond with them, and postponing till their
death the mitigation of the English law of treason intro-
duced at the Union for doing away with corruption of blood
in all cases of high treason. Not only Jacobites, who looked
eagerly for a restoration of the true line, but Whigs, who had
assisted in effecting the Revolution and sincerely supported the
new dynasty as necessary to constitutional government, were
shocked by the proposed enactment that the young Princes,
the undoubted heirs of Cerdic the Saxon, of William the
Conqueror, of the Plantagenets whether wearing the white
rose or the red, of the Tudors, of the Bruces, and of the
Stuarts,— although, personally, they had committed no offence
* 12 Parl. Hist. 26—143. + 13 Parl. Hist. 671.
R 2
243
CHAP.
XXVII.
A.D. 1744.
His speech
for attaint-
ing the sons
of the Pre-
tender.
244
CHAP.
XXVII.
A.D. 1744.
REIGN OF GEORGE II.
against the British nation, and although they must have con-
sidered that they were engaged in a holy enterprise when
they were trying, with the assistance of faithful adherents,
to recover the crown for their exiled father, —if taken pri-
soners in the country which their ancestors had ruled for
fifteen hundred years, should, without any form of trial,
be hanged like dogs on the bough of the next conyenient
tree. The new treason of simply corresponding with them
while they remained in distant lands was startling, as the
interchanged letters might amount to mere courtesy, or might
touch some point of philosophy or the arts. But the inde-~
finite prolongation of forfeiture of all property and all honours,
on a conviction for high treason, was that which caused the
greatest alarm. The union with Scotland never could have
been accomplished except upon the solemn promise that, if
the English law of treason was introduced into that country,
“‘ corruption of blood,” its most cruel incident, should entirely
cease at the death of the son of James II]. The new mea-
sure was denounced as not only unjust and inhuman in itself,
but as the breach of a national compact, and of the condition
on which the Hanoverian family had been invited to the throne.
Mr. Attorney General Ryder: “ Sir, the clause for attainting
the two sons of the Pretender, in case they should land or attempt
to land in Great Britain or any of the dominions thereunto be-
longing, can stand in no need of any long explanation, or of many
arguments for securing to it your approbation. It is vain, sir, to
talk or to think of hereditary right to the crown beyond what we
find in the Act of Settlement. Our only legitimate sovereign is
his Majesty King George II., to whom we have all sworn allegi-
ance, and whom God long preserve! All who contest the right
to the crown of him and his heirs, must be treated as traitors.
We cannot look to the pedigree of those who compass the death of
our lord the King or levy war against him in his realm. The
stability of government is essential to the good of the people, and
this can only be secured by speedily disposing of those who claim
the crown and try to get possession of it by force of arms. On
this principle the Duke of Monmouth was attainted by par-
liament, and executed without any form of trial; and on the
same principle the present Pretender, calling himself James III.
and James VIII. of Scotland, was himself attainted by act of
LIFE OF CHIEF JUSTICE RYDER.
parliament in the year 1715. Notwithstanding the attainder, no
one would be justified in putting the law in force without a war-
rant from the Government, and there would always be room for
a display of royal clemency. With respect to the prohibition of
corresponding with the sons of the Pretender, I am not much sur-
prised that there should be some uneasiness, considering how
many (wishing to have two strings to their bow) ever since the
flight of James II., while they professed a devoted adherence to
the new order of things, have wished to keep up a good under-
standing with the exiled family, contemplating the possibility of
anew Restoration. Ought this double-dealing to be encouraged ?
The courtesy to be found in such letters is the offer of a hospitable
welcome in Lochaber, the philosophy discussed is the divine right
of kings, and the art to be illustrated is the art of rebellion. For
the good of hot-headed Jacobites and Janus-faced politicians them-
selves, such correspondence should be interdicted, that they may
be saved from temptation and delivered from evil. The clause
continuing the existing law of forfeiture for treason till the death
of the sons of the Pretender will require some more observation,
for it has been represented as inconsistent with religion, incon-
sistent with natural justice, inconsistent with national good
faith, and inconsistent with the freedom of our constitution. All
that can be said against forfeiture for treason must proceed
from mistaking or misrepresenting the nature of punishment,
and the end for which it has been introduced into human so-
cieties. It is said that punishment is ‘malum passionis, quod
infligitur ob malum actionis,’ and therefore in its own nature it
must be confined to the person of the criminal; for whoever
pretends to inflict a punishment upon an innocent person, cannot
properly be said to punish: on the contrary, he deserves to be
punished, because, in so doing, he commits a crime, or a ‘malum
actionis,’ and for that reason ought to suffer a ‘malum passionis.’
However, there are many misfortunes, inconveniences, and losses
which innocent men are subjected to by the nature of things, and
may be exposed to by the laws for the preservation or welfare of
society. It is a misfortune for children to be born of parents
afflicted with hereditary diseases; it is a misfortune for children
to be reared by parents who are poor or profligate: but these mis-
fortunes are not to be called punishments. In countries where
slavery is permitted, children born of slaves are the property of
the masters of their parents. In the ancient Roman common-
wealth, the children of plebeians could not marry into a patrician
family, nor beadvanced to any of the chief posts of the govern-
R 3
245
CHAP.
XXVIT.
A.D. 1744.
246
CHAP.
XXVIT.
A.D. 1774.
REIGN OF GEORGE II.
ment. In a similar category are children, by our law, born of
parents convicted of treason. If the good of society requires the
property of the parent to be forfeited for his crimes, his children
suffer a misfortune, but are not subjected to punishment.”
He then proceeds at enormous length, but with very con-
siderable ability, to quote the opinions on this subject of
Grotius, of Puffendorf, and of Cicero; and to examine the
treason laws of the Jews, of the Athenians, of the Romans,
of the Saxons, of the Normans, and of the English from the
reign of Edward III. downwards ; showing that, by the most
enlightened statesmen and the wisest nations, forfeiture of
property had, for the peace of society, been inflicted as a
punishment on those who had attempted to overturn the ex-
isting government, whether monarchical, aristocratical, or
mixed; and the love of parents to children had been taken
advantage of to deter men from crimes which are subversive
of social order, and to which there is often a strong induce-
ment from .ambition, cupidity, and love of change. He thus
concluded : —
“ The execution of a traitor is a fleeting example; but the po-
verty of his posterity is a permanent lesson of obedience to the
laws, whereby rebellion and civil war are prevented, and liberty is
allowed to flourish. The reason which induced Parliament to
continue forfeiture for treason in this country, at all events till the
death of the old Pretender, applies now with equal strength to
continue it till the death of his sons. The infatuated attachment
to the family which systematically attacked, and which if recalled
would soon effectively destroy, both our religion and our liberties,
still. continues ; and wicked men, under pretence of it, seek to
prosecute their own schemes of lawless aggrandisement. Whether
we shall ever abolish a punishment so salutary and necessary, there
is no occasion now to determine; but, at all events, while the Pre-
tender’s sons survive, there will always be too many amongst us
affected by an itch of rebellion ; and all lawyers and politicians
agree, that severity of punishment should be in proportion to the
evils arising from the offence, and the probability of its being re-
peated.” *
The bill passed; but it had no effect in deterring Charles
Edward from his purpose, or in cooling the ardour of his
* 13 Parl. Hist. 889.
LIFE OF CHIEF JUSTICE RYDER.
followers ; and as wise men preferred the existing system
of government, from the superior advantages enjoyed under
it, I suspect that the more prudent course would have been,
by amending our laws, to have removed the unpopularity
from the Government, — which was then so great that the
mass of the nation looked with indifference to the result of
the contest.
The next speech of Mr. Attorney General Ryder trans-
mitted to us is an extremely elaborate one, which he delivered
against a bill introduced to prohibit insurances on French
ships during the war. Carrying the principles of free trade
to an extreme which startles us even in the present age, he
contended that we should be gainers by indemnifying French
merchants against English capture; and this proposition he
enforced and illustrated by an immense body of statistics and
calculations, which would now be uninteresting. Having
shown the large profit made by insuring enemies’ property,
he pointed out the imprudence of sacrificing this in the vain
hope of destroying their commerce : —
“ Like the dog in the fable,” said he, “by snatching at the
bone we fancy we see in the water, we shall lose that which we
now hold in our mouth. The trade of insuring we possess without
arival; but it will soon be established in other countries, and
our own merchants may deal with foreign insurance-companies.
Let the King of France but talk of insurances in his drawing-
room; let him but say it is a business no way inconsistent with
noblesse ; let him but insinuate that he will show favour to those
who engage in it, and the whole French nation will become
insurers.”
However, although he was ably supported by Murray the
Solicitor General, the bill passed ; and, indeed, our courts
would now consider such insurances void at common law,
as contracts with alien enemies, and contrary to public
policy. *
On the death of Frederick Prince of Wales, Mr. Attorney
Ryder had to carry through the House of Commons the bill
for appointing the Princess of Wales Regent, with a Council
to control her, at the head of which was the Duke of Cum-
* 14 Parl. Hist. 128.
R 4
247
CHAP.
XXVITI.
A.D. 1747.
His speech
to prove
the expe-
diency of
allowing
the in-
surance of
enemies’
ships.
A.D. 1751.
His speech
on the
Regency
Bill.
248
CHAP.
XXVII.
A.D. 1751.
A.D. 17538.
His speech
in support
of Lord
Hard-
wicke’s
Marriage
Bill,
REIGN OF GEORGE II.
berland. This last part of the arrangement was very un-
popular, and he had great difficulty in defending it. Having
observed that the precedent now established would settle the
practice of the constitution for the future, he thus pro-
ceeded : —
“J shall freely grant, sir, that a sole regent, with sovereign
power, is more consonant to our constitution, and less exposed to
faction, than a regent limited and restrained to act in all matters
of great importance by the advice of a council of regency’; but will
any gentleman say that the appointing of a sole regent with so-
vereign power ought to be laid down as a general rule to be ob-
served in every case of a minority? If we appoint a regent with
a council of regency, we are exposed to the danger of faction ; if
we appoint a sole regent with absolute power, we are exposed to
the danger of an usurpation. But as usurpation is a danger much
more terrible than faction, the safer general rule is, that a council
of regency ought to be established, and that the regent be confined
to act by their advice.” He then went over the various minorities
which had occurred in English history since the accession of
Henry IIL, illustrating his proposition by the manner in which a
limited and an unlimited regency had worked; and thus con-
cluded : — “ If a sole regent with sovereign power should now be
appointed, I am persuaded the same course will ever after be in-
sisted upon, till some regent, like Richard III., has convinced us
when it is too late of the danger we incur. If I were to look no
farther than the excellent Princess named by this bill, I would
cheerfully intrust her with absolute sway; but I am sure she has
too much wisdom not to excuse our refusing to pay her a com-
pliment at the apparent risk of one of her posterity.”
The bill passed as introduced, but never came into opera-
tion, as George II. survived till his grandson was of age.*
The last time that Sir Dudley Ryder ever spoke in parlia-
ment was in supporting Lord Hardwicke’s celebrated bill “ to
prevent clandestine marriages.” He showed at great length,
and with much ability, the evils produced by the existing
system of giving validity to every marriage celebrated by a
priest in orders, in any place, at any hour, without license or
proclamation of banns, and without the consent of parents or
guardians; he proved that it was within the just power of
* 14 Parl. Hist. 1023.
LIFE OF CHIEF JUSTICE RYDER.
the legislature to regulate the manner in which this, the
most important of all contracts, shall be entered into; and he
defended the several provisions of the bill which were to
guard alike against the passions both of the young and the
old: —
“ We often find,” said he, “ the passion called Jove triumphing
over the duty of children to their parents ; and, on the other hand,
we sometimes find the passions of pride and avarice triumphing
over the duty of parents to their children. I am persuaded that
our ancestors would long ago have applied a similar remedy, but
for the superstitious opinion that when a marriage between two
persons come to the age of consent, though minors, is once
solemnised by a priest in orders, it is so firmly established by the
Divine Law, that it cannot be declared null by any human tribunal.
Thank God! we have, in this age, got over such dogmas; and the
Right Reverend Bench in the other House deserve well of their
country for consenting to render Christianity consistent with com-
mon sense.”
After a furious opposition, the bill was carried; but Mr.
Attorney ought to have seen a gross defect in it, which we
have lately cured, — that it allowed the validity of marriages
to be questioned at any distance of time upon an alleged
non-compliance with its provisions, although the parties might
have lived many years together as man and wife after they
had come of age.*
It must be acknowledged that Ryder’s parliamentary career
was not brilliant, but he deserves the praise of never having
affected what he could not accomplish, and of having, without
envy or jealousy, confined himself to professional subjects,
while Murray, his inferior officer, was the ministerial leader
in the House of Commons, and was contesting the palm of
eloquence with the elder Pitt.
In the courts of justice, Sir Dudley Ryder, as Solicitor
and Attorney, did the business of the Crown very efficiently ;
but, with the exception of the trials which arose out of the
rebellion of 1745, he was not engaged in any of permanent
interest. In addressing the jury he studied brevity to a
degree which astonishes us, accustomed to the long-winded
*°15 Parl. Hist, T.
249
CHAP.
XXVII.
A.D. 17536
250
CHAP.
X XVII.
A.D. 1746.
His prose-
cution of
Colonel
Townley
for high
treason.
REIGN OF GEORGE II.
orations of modern times. The following is the whole of his
speech (as taken by a short-hand writer) in opening the im-
portant prosecution for high treason against Colonel Townley,
who had proclaimed the Pretender in Lancashire, and had
commanded a regiment of horse in his service : —
My Lords, and you, Gentlemen of the Jury : The prisoner at the
bar, having been deeply engaged in the late unnatural and wicked
rebellion, begun in Scotland, and carried into the heart of this
kingdom, in order to overset our present happy constitution in
church and state, hath rendered necessary this prosecution against
him. Ido not doubt but that, in the course of our evidence, we
shall make it appear to your satisfaction that the prisoner, with
others his confederates, did assemble in a warlike manner, and
procured arms, ammunition, and other instruments of war, and
composed a regiment for the service of the Pretender to these
realms, to wage war against his present most sacred Majesty, and
did march through and invade several parts of this kingdom, and
unlawfully did seize his Majesty’s treasure in many places, for the
service of their villanous cause, and took away the horses, and
other goods, merchandise, and chattels of many of his Majesty’s
peaceable subjects ; and that, during the said march, the prisoner,
with other rebels, in open defiance of his Majesty’s undoubted
right and title to the crown of these realms, frequently caused the
Pretender’s son to be proclaimed in a public and solemn manner
as regent of these realms, and himself marched at the head of a
pretended regiment, which they called ‘the Manchester regiment.’
My Lords, I shall not take up the time of the Court in saying a
great deal, for all that the prisoner is charged with will appear so
full and plain, from the evidence we shall produce for the King,
that there will not be the least doubt with the jury to find him
guilty.”
The prisoner’s counsel, in stating the defence, that he
had acted under a commission from the King of France,
* acknowledged that the Attorney General had opened the
case with all the candour that could be expected, and had not
exaggerated the charge beyond the bounds of humanity and
good nature.” ‘The trial, which now-a-days would last a
week at least, was all over in a few hours.*
On the impeachment of Lord Lovat, the conduct of the
* 18 St. Tr. $29.
LIFE OF CHIEF JUSTICE RYDER.
prosecution before the House of Lords chiefly fell on Sir
Dudley Ryder, as one of the managers for the Commons. In
opening the case, he distributed the facts under three heads:
** 1. Those which happened precedent to the Pretender’s sons
landing: 2. What happened after that time, and before the
battle of Culloden: 3. What arose since that happy event:” —
“ The first,” said he, “ will disclose to your Lordships a wicked
and traitorous scheme, begun and carried on for many years, for
bringing over the Pretender by the assistance of a foreign force,
in which his Lordship will appear to have had a principal hand.
The second will include the more immediate scene of action in
the late wicked rebellion, and the particular parts which the
prisoner took in it. The third will show him in the circumstances
of a defeat ; and, in every part of this whole scene, he will appear
plotting, associating, and supporting all the steps that were taken
for subverting this happy establishment, dethroning his Majesty,
and substituting a Popish Pretender in his room.”
He then traced the secret machinations of the Highland
chiefs, guided by Lord Lovat, to restore the exiled royal
family; and he gave a lively sketch of the well-known mili-
tary operations, from the landing of the Pretender, till the
final overthrow of his cause, showing how the prisoner, while
pretending to stand by King George, had sent his clan to
fight on the other side under his son, the master of Lovat.
Thus he proceeded : —
“T am now come, my Lords, to that last period of time — from
the battle of Culloden. The prisoner was waiting, not very far
off, the event of that important day. The night after, the Pre-
tender’s son came to Gortuleg, where the prisoner was, and had
an interview with him. The noble Lord did not even then dis-
avow his cause, but received him as his prince; excused his not
joining him in person; and, after the tenderest embraces, parted
from him as a faithful subject to a royal master. ‘The prisoner,
as well as those who had been in open arms, was obliged to fly.
He knew his guilt was the same as theirs, and that he deserved
the same treatment. The rebel army, and the chiefs who escaped
from the battle, were now dispersed; but, on the 15th of May, a
meeting was held at Mortleg, to consider what was proper to be
done for their common safety. The noble prisoner at the bar met
them—not as an innocent person, to advise them to lay down
251
CHAP.
XXVILI.
A.D. 1746.
His speech
on the im-
peachment
of Lord
Lovat.
252:
CHAR.
XXVIT.
a.v, 1746.
REIGN OF GEORGE II.
their arms and beg for mercy; not as a neutral person, if neu-
trality in the cause of our King, religion, and liberty can be attended
with a less degree of guilt; but as one involved in the same com-
mon crime and calamity, — as a chief whose age and experience
entitled him to the lead; and he took it. He advised them to
raise a sufficient number of men to defend themselves against the
King’s troops till they could make terms for themselves; he pro-
posed that his son should muster 400 Frasers; and, there being
35,000 louis d’or remaining of the subsidy lately received from
France, a sum equal to twenty days’ pay for this band was paid
to his servant. When the master of Lovat, at a subsequent meet-
ing, proposed to surrender to his Majesty, the prisoner dissuaded
him from it, and reflected upon him as a person of mean spirit to
think of so dishonourable an action. He himself made off, with a
guard of twenty soldiers, whom he took into pay for his defence.
However, he was pursued and taken by a party sent after him by
the Duke of Cumberland. Being asked how he could act as he
had done after all the favours he had received from the Govern-
ment, he answered ‘It was not against the King I acted, but the
Ministry, who took away the independent company I had been
trusted with. Who would have thought but that the Highland
men would have carried all before them? If the young Pretender
would have taken my advice, he might have laughed at the King’s
forces: none but a madman would have fought that day. Besides,
we were in daily expectation of farther assistance from France.’
When brought before Sir Edward Faulkener he did not think of
denying his treason, but made the same open avowal of his motive,
adding, ‘I resented the loss of my independent company so much
that, if Kouli Khan had come, I should have been for him. Your
King is merciful, and will remember the services I have formerly
done to his family. I can still do greater than twenty such old
heads as mine are worth. However, I am ready for any part
which he may assign to me,
. “In utrumque paratus,
Seu versare Bolan seu certa occumbere morti,
”»?
« The Commons have thought this a matter worthy their inter-
position, and therefore have taken it into their own hands, be-
cause the prisoner has been the contriver, the promoter, and the
conductor of the rebellion, so far as Providence suffered it to go.
I have entered into the case so fully, that your Lordships may
have the greatest of all satisfactions which judges can desire, the
certainty of pronouncing a right judgment ; and as to the people
in general, it is of no small moment that they should be enabled
LIFE OF CHIEF JUSTICE RYDER.
to behold in one man the pernicious schemes which, for many
years, have been concerting between Rome, France, and un-
natural traitors at home, — that they may see the rebellion, from
which they have lately so severely felt, clearly traced to its source,
and be fully convinced that whilst they are themselves enjoying
at their ease, and too often asleep, their religion, their liberties,
and their properties, under the protection of the best of princes,
and the influence of the wisest constitution ever framed, they
have enemies both abroad and within their own native country
who are constantly awake for the destruction of all they hold dear,
— and learn this certain truth, which should be imprinted in ever-
lasting characters on the mind of every Briton, that there is no
effectual security against the determined and persevering con-
spiracies of those who contemn both divine and human laws but a
firm and vigilant union of honest men. Any attempt to prevent,
dissolve, or weaken such a union is little less than treason in its
beginning, and, if not speedily crushed, it must lead to the worst
that can happen to this land of liberty, the total destruction of the
royal family and of the happiness we now enjoy under their
benign sway.” *
In the last recorded case in which Sir Dudley Ryder
appeared as an advocate, he met with a very flagrant mor-
tification. This was the prosecution of William Owen -for a
libel, which the Attorney General was ordered to institute by
a vote of the House of Commons, the party supposed to be
libelled, in consequence of their foolish commitment of the
Honourable Alexander Murray. In his opening address to
the jury, he was by no means abstemious in praising his clients
or in abusing their detractor : —
“ The libel,” said he, “ contains charges of partiality, injustice,
barbarity, and corruption against the House of Commons, that
House which is the guardian of our liberties and the protector of
all we hold dear. Every one must be shocked who reads this
wicked—diabolically wicked pamphlet. ‘The Parliament has justly
voted it ‘a false, malicious, infamous, scandalous, and seditious
libel, tending to create confusion and rebellion.’ To me it is
astonishing how it could enter into the mind or heart of man to
write such a libel. What! shall a person appeal from the judg-
ment of that court who are the only judges of things pertaining
to themselves —I mean the House of Commons? An appeal! To
* 18 St. Tr. 559.
253
CHAR:
XX VIL.
A.D. 1758.
Signal de-
feat of Mr.
Attorney
General
and of the
House of
Commons.
254
CHAP.
XXVII.
A.D. 1753.
REIGN OF GEORGE II.
whom? Toamob! Must justice be appealed from? To whom?
To injustice ! The writer says ‘he appeals to the good people of
England, particularly the inhabitants of Westminster.’ The House
of Commons are the good people of England, being the repre-
sentatives of the people. The rest are—what? Nothing, unless
it be a mob. And what can be ina mob but confusion? But
the clear meaning of this libel was an appeal to violence. Gentle-
men, whosoever reads this libel will find it the most pungent
invective that the skill of man could invent. I will not say the
skill, but the wit, art, and wicked contrivance of man, instigated
by Satan. To say that this is not a libel, is to say that there is
no justice, equity, or right in the world. If the House of Com-
mons is not to be defended, and to have protection and relief in
a court of law, yourselves, your homes, and your children will
be without protection or relief. You will see, gentlemen, whether
the evidence does not satisfy you that the libellous pamphlet
was sold in the shop of the defendant; and, in that case, it
will be your duty to find him guilty.”
An Attorney General who should now make such a speech
— denouncing the whole constituent body, or the people of
England, as a mob, without any touch of reason or sense of
justice — would be impeached, unless he were shut up ina
madhouse. Even a century ago it seems to have given mortal
offence to those to whom it was addressed. The jury, by an
artful dodge, might have been wheedled out of their rights,—
but they would not have been Englishmen if they had suf-
fered themselves to be thus bullied. The sale of the pam-
phlet in the defendant’s shop by his authority was incontro-
vertibly proved ; yet, although the Chief Justice fully adopted
the doctrine that the jury could not look beyond this fact,
they took the question of libel or no libel into their own hands,
and, to the unspeakable delight of the public, — without
condescending to answer whether they considered the evidence
of publication sufficient, — insisted on finding a general ver-
dict of Nor Guiity.*
Mr. Attorney was afraid to face the mob assembled round
Guildhall, and concealed himself in the Lord Mayor’s closet.
After a few hours he ventured to return to his house in
Chancery Lane; but he found a great bonfire blazing in
* 18 St. Tr. 1203—1230.; ante, p. 227.
LIFE OF CHIEF JUSTICE RYDER.
Fleet Street, and, before his hackney coach was allowed to
pass, he was obliged to give something to drink to the health
of the jury ;— in return for which, without knowing their
benefactor, they threw to him a copy of the following song,
supposed to be sung by the foreman and a chorus of jurymen,
but actually composed by an Irish porter * : —
“ Sir Doodley, Sir Doodley, do not use us so rudely ;
You look pale, as if we had hilt ye:
Sir Doodley, Sir Doodley, we shamefully sbould lye,
Were we to say the defendant is Guinry.
‘A fig for the Commons! Who now cares for their summons ?
Or their votes on the press to make war?
Murray made them look glum once by calling them ‘rum ’uns,’
And refusing to kneel at their bar.
«Mr. Attorney’s grim wig, though awfully big,
No more shall frighten the nation ;
We'll write what we think, and to Liserry drink,
And defy his eggs-off. Inrormation.” t
Sir Dudley Ryder had been for some years impatient for
the tranquillity and security of the bench, and he was soon
after thrown into deep consternation by the death of Mr.
Pelham, the Prime Minister, which threatened a complete
dissolution of the Cabinet. After such a long and prosperous
voyage, when within sight of port he suddenly found himself
among breakers, and he was afraid of being cast away on the
dreary shore of opposition. ‘The vessel righted, but he had
little confidence in the new pilot, and he dreaded some fresh
disaster.
Not inopportunely for the Attorney General came the
apoplexy of the Chief Justice. There was no hesitation as
to the manner in which the vacancy was to be filled up; and,
as soon as the necessary forms could be complied with, Sir
Dudley Ryder took his seat in the Court of King’s Bench,
as the successor of Sir William Lee, and was made a
Privy Councillor. He was sworn in privately at the house
of the Lord Chancellor, the parade of installation speeches
having become obsolete. It was expected that he would
be immediately raised to the peerage; but Lord Hard-
wicke’s reluctance to have any law lord in the House of
Peers, besides himself, still prevailed.
* Lond. Mag. 1753. Lord Mahon’s History, iv. 27. Kneeling at the bar
of the House of Commons never was heard of more.
+ I presume ex-officio Information.
255
CHAP.
XX VII.
A.D. 1753.
Trish
porter’s
song on
“Sir Dood-
ley.”
March,
1754.
April 8.
May 2.
Ryder
Lord
Chief Jus-
tice.
256
CHAP.
XXVITI.
A.D. 1745,
REIGN OF GEORGE II.
Lord Chief Justice Ryder’s judicial career was extremely
brief, being only a few days more than two years. During
this period he reputably performed the duties of his office ;
but those who expected that he was to introduce reforms
and improvements into the administration of the Common
Law were disappointed, for he listlessly allowed all things to
go on as he found them. He had no ambition to raise his
fame above that of his immediate predecessors, and he satisfied
his conscience by deciding to the best of his ability the cases
which came before him, according to the antiquated routine
which had long been condemned. His decisions are to be
found in the Reports of Sayer and Lord Kenyon; but,
in looking through them, I can find none which, from the
importance of the point adjudged or the mode of reasoning
adopted, would now be interesting. He had not to preside at
any trial for treason or libel; and he came in for no share of
the popularity soon afterwards enjoyed by Camden, or of the
obloquy cast upon Mansfield.
Resentment was excited in his mind by the consideration
that the rank was withheld from him which had been con-
ferred on his predecessors, Jeffreys, Parker, and Raymond,
and which his ample fortune would have so well enabled
him to support. The profession took part with him; and,
feeling that their consequence was impaired by the rule
laid down that the Chancellor was the only lawyer who
could hope to be ennobled, loudly asserted that the public
suffered from there being no Common Law judge permitted
to sit in either Chamber of Parliament. All these com-
plaints would have -been vain if the Duke of Newcastle,
now tottering to his fall, had not wished to strengthen
himself by making new peers. He had been out-voted
in the House of Commons on Pitt’s Militia Bill, and
his noble whipper-in gave him notice that neither the list of
ministerialists in town nor the proxy-book was quite satisfac-
tory. He immediately suggested the Chief Justice of the
King’s Bench as one new peer; and, seeing that from the
moderate abilities and unambitious disposition of this in-
dividual he never could be a candidate for the chancellorship,
or formidable from obtaining influence in a deliberative as-
sembly, Lord Hardwicke did not resist the proposal. Sir
LIFE OF CHIEF JUSTICE RYDER. Zot
Dudley, pleased that his wife was to be a BaRronegss, that CHAP.
his children were to be Honourable, and that the prophecy of ae
his grandfather was about to be fulfilled, joyfully accepted 4.5. 1756.
the offer, and fixed upon the title of “ Lord Ryder, Baron rasp
Ryder, of Harrowby in the county of Lincoln.” Accord- to the
ingly, on the 24th day of May, 1756, the King signed a war- P°***8®
rant addressed to the Attorney General, commanding him to
make out a patent of peerage by this name, style, and title;
and it was agreed that the following day the new peer should
go to St. James’s, to kiss hands on his elevation, when the
dignity would have been considered as virtually conferred, —
although some days more were required for the patent to
pass the great seal. Alas! amidst the felicitations of his His sudden
family and his friends, he was struck that very evening with 73!”
a mortal malady, and in twelve hours they were weeping
over his corpse. He had reached his sixty-sixth year, but,
from a good constitution and temperance, he seemed to be only
entering into green old age, and a considerable period of en-
joyment and of usefulness was still supposed to be before him.
We may judge of the sensation produced by this calamity
from a letter of Archbishop Ryder to the widow of the
Chief Justice, in which he says, —
* A greater loss could not be to his family or his friends : few June 4,
were ever so great a blessing to all that had the honour to be rena
related to him. His kindness to me and to my nephews has been Ryder, :
boundless : what his Majesty and the public have lost by his death
will be testified by the universal lamentation of it. Whatever
may be the sorrow of those who are immediately affected by it,
their duty is to endeavour to overcome it: the living require this
of us; and the dead, if they knew it, would grieve at our grieving
for them.”
A few days after, his Grace thus addressed the son of the
Chief Justice : —
“It is my duty to write to you, though I gave my lady your June 7th.
mother the trouble of a letter by the last post, and can now
do little more than mingle my tears with the flood of sorrow
which overwhelms you on,account of the loss of your invalu-
able father. He was ever a father to me and mine in the most
signal acts of affection and kindness. That he is snatched away
thus suddenly, and at so critical a juncture, has the appearance of
VOL. Il. S)
258
CHAP.
XXVIII.
A.D- 1756.
Expecta-
tion that
Sir Dudley
Ryder’s
peerage
would be
conferred
on his son.
June 20,
Letter on
this subject
from the
Honour-
able
Charles
Yorke.
REIGN OF GEORGE II.
the hand of God in a very extraordinary manner, and yet the ways
of God with man are unsearchable. Possibly he may have been
taken from us at the time he was the ripest for the honour with
which posterity will have him in remembrance. I would hope,
too, that the honour intended his Lordship by his Majesty will be
redoubled to him by its being renewed to you as a testimony of
your father’s uncommon merit, and of his long and faithful services
to the Crown. However this may be, and however we may be
grieved for the loss of him, we have the comfort to hope and to
believe that his lot in the other world is with the children of God,
and that he is numbered with the saints.”
It was generally expected that the son’s name would be
inserted in the patent instead of the father’s, and that he
would forthwith be declared Lord Ryder of Harrowby; but,
as he was not yet of age, he could not have voted in the
critical division which was expected, and poor old Sir Dudley’s
“Jong and faithful services to the Crown” were already for-
gotten. Lord Hardwicke no longer felt any jealousy upon
the subject, but he treated it with the coldest indifference.
By the advice of some friends of the family, a memorial to
the King, stating the facts of the case, was prepared; and
they proposed that the young gentleman himself should be
presented to his Majesty, in the hopes that on this occasion
there might be a favourable announcement of the royal will.
The Honourable Charles Yorke, then Solicitor General, being
applied to that he might use his good offices with his father,
wrote the following frigid reply : —
“ Dear Sir,—I have just seen Lord Chancellor, who is clearly
of opinion that you had better defer being presented to the King
till after his Majesty shall have given an answer to the memorial,
and till after your coming of age, which I acquainted him will be
in the beginning of next month. He thinks the memorial very
properly drawn, and will present it some day next week. He is
certainly your friend in it, and I wish you all possible success.
If I can be of the least service to Lady Ryder or yourself, you may
always command me. Nothing can exceed the respect and love
which I bore your father, and the obligations which I owe to his
kind friendship are such as entitle you to every return in my power.
“Tam, dear Sir, with the greatest regard and esteem,
** Your affectionate and faithful servant,
“C, YORKE.”
LIFE OF CHIEF JUSTICE RYDER.
In the political crisis which arose from Murray’s deter-
mination to succeed Sir Dudley Ryder, and which termi-
nated in the resignation of the Duke of Newcastle and
Lord Hardwicke, the Ryder memorial was forgotten, and for
years to come the Ryder peerage was not thought of except
among the members of the family. The good Archbishop,
to be sure, wrote, “Possibly the change of ministry, if
what is said of it be true, may have placed those at the
helm who will be more desirous of serving you. The Duke
of Devonshire, I am well assured, was a fast friend to the
late Chief Justice, your father; I have the honour to be
known to him, and if any solicitation of mine could be of the
least service, I would go over to try what might be done in
it.”
But it was not till twenty years after, when Mr. Ryder
had served in the House of Commons during several par-
liaments for the borough of Tiverton, and had zealously
supported the administration of Lord North, that he was at
last raised to the peerage by the title of Lord Harrowby.*
We must now go back to take a parting glance at the old
Chief Justice himself, who, if he retained any of his human
feelings after shuffling off this mortal coil, must have been
rather indignant when observing the neglect with which his
heir had long to struggle, although he might not care much
about his own dwindling reputation.
I have nothing more to say in his praise as a public man,
but it should be known that in private life he displayed the
most amiable qualities, and that no fault could be imputed
to him, except, perhaps, that he was rather too uxorious. In
his thirty-third year he married a charming woman, to whom
* Unfortunately the Ryder family had a quarrel with Lord Mansfield about
the state coach, which was to be transferred to the new functionary at a valua-
tion, as the Lord Chancellor’s coach is still transferred. A testy note, dated
Noy. 29. 1756, says — “ Lord Mansfield is only solicitous that Mr. Ryder may
do what is most agreeable to himself, and as to the rest is extremely indifferent.
But he would not, for much more than the value of the coach, have more than
one word about such a transaction with Mr. Ryder, for whom he has the
greatest regard, and to whom, upon his father’s account, he would be ready to
show upon all occasions every act of civility and friendship.” I do not know
whether the collar of S.S. passed with the coach. This gold decoration is the
personal property of the Chief Justice ; and his family sometimes retain it as a
memorial of their founder, and sometimes hand it over to his successor.
s 2
4
259
CHAP.
XX VII.
A.D. Lia6s
Noy, 8.
Sir Dudley
Ryder’s
amiable
character
in domestic
life.
260
CHAP.
XXVII.
Letters
from him
to Lady
Ryder.
View of
‘Westmin-
Hall.
REIGN OF GEORGE II.
he was tenderly attached — Anne, daughter of Nathaniel
Newnham, Esq., of Streatham, in the county of Surrey, and
he lived with her in uninterrupted harmony and happiness.
While she possessed a cultivated mind and elegant accom-
plishments, she managed not only all his household affairs,
but all his pecuniary transactions, so as*to leave him entirely
free for his professional and official pursuits. They never
were separated for more than a day except once. In the
summer of the year 1742 she fell into ill health, and she was
ordered by her physicians to Bath. He accompanied her,
and nursed her till the approach of Michaelmas Term
indispensably required his presence in London, while she
remained for some weeks behind to complete her cure.
During this interval he wrote her a letter daily, however busy
he might be, — sometimes doing so while a trial in which he
was counsel was proceeding. These effusions are preserved,
and I introduce a few of them for the gratification of the
reader who is pleased with genuine touches of sentiment and
photographic sketches of domestic scenery.
Having been employed by Henry Fielding to move for
an injunction to restrain a bookseller from publishing a pirated
edition of JoseEpH ANDREWS, and having been defeated by
reason of an error in the jurat of the affidavits, — before being
called upon to speak in another cause, he thus addressed
Lady Ryder: —
“ Westminster Hall, Saturday.*
“« My dearest Girl, —I can’t help thinking of you in the midst
of the noise of Westminster Hall. I have this moment sat down
after endeavouring to rescue Jos. Andrews and Parson Adams out
of the hands of pirates, but in vain; for this time we are foiled
by a mistake in the attack. However, another broadside next
week will do the business.
* J find this place just in the same situation I left it in, —filled
with the same reverend and learned judges and counsel, and attended
with pretty much the same clients.
“ The Chief Baron’s cushion is still empty, and I don’t find at
all how it is to be filled.
* Indorsed “ Oct. 23. 1742.”
LIFE OF CHIEF JUSTICE RYDER.
J am going from hence to Tooting*, and expect Molly and
Dudley t to call me in case I can’t get away time enough to return
to Chancery Lane by three.
«‘ Adieu, my Best Beloved,
“ And dearest Friend,
D4 Re
Three days after, he gives her an account of the extra-
ordinary rage for theatricals then stirred up by Garrick : —
*¢ 26th October, 1744.
* Last Saturday the Chancellor was seen at Drury Lane play-
house. The extraordinary character of Garrick in Lear would
justify the presence of a bishop, especially to my Lord of Killaloo,
who has heard that in Ireland the Chancellor and the Judges open
the term with a play, at which, I presume, the Bishops assist.”
The following was written by him on a most auspicious
anniversary — which luckily fell that year on a Sunday,
when he was left entirely free from the distractions of busi-
ness : —
“ Streatham, Ist Nov. 1742.
** My Dear, —I am now here to celebrate your wedding-day. Let
me congratulate myself and you on the happiest circumstance of my
life. How many joyful hours had I lost if my good fortune had
not thrown me in your way! I should not, indeed, have known
my loss, but I might now have been lamenting another wedding,
or sinking under the weight of solitude and indolence, without
any end to pursue by all my labours, or satisfaction in my ac-
quisitions. Accept, my dear, the warmest acknowledgments of a
grateful heart for the many blessings you bestow upon me ; and,
above all, for my dearest boy, whose mind daily opens and dis-
covers a fund of goodness and understanding that charm me. I
am just come from teaching him the New Testament in Latin.
He makes his comments so naturally on every verse, that I am
better pleased with the knowledge he treasures up than the Latin
he acquires by it. He has found out a method of discovering the
end of the world which neither Whiston nor any other of our
commentators on the Revelations have hit upon. ‘ Papa,’ says he,
‘the Bible says the end of the world will not come till the gospel
is preached to all nations: now the Blacks and the Turks have
* Where he had a villa. + His children.
33
261
CHAP.
XXVITI.
Oct. 26.
The Chan-
cellor at
Drury
Lane.
Anniver-
sary of Sir
Dudley
Ryder’s
wedding-
day.
262
CHAP.
X XVII.
Fashion-
able gossip.
Perils of a
married
lawyer
when living
en garcon.
REIGN OF GEORGE II.
neither of them had it ; so we may be sure the world is not yet
near its end.’
“ Tam, my dearest,
‘ Yours for ever,
ik B Me 6
The next letter, remarkable for its lively gossip, was
written in an evening sitting of the Court of Chancery,
during the hearing of a cause, after Sir Dudley had dined
with the Chancellor of the Exchequer, and had (I suspect)
partaken very copiously of his claret. These evening sittings
were continued till the beginning of the reign of George III.,
when they were abolished with the consent of that sovereign,
on the avowed reason that the Chancellor himself was apt
to appear at them not “as sober as a judge” ought to be.*
** Lincoln’s Inn Hall, Nov. 3. 1742.
“ My Dear, —I have received your letter, and must answer it
now or not at all to-night. I have been to pay my compliments
at the Prince’s court. Miss Fazackerley appeared there for the
first time, and kissed hands. Mrs. Campbell inquired there after
your health. She looks like a ghost, —not at all improved by
Tonbridge. I to-day dined, by invitation, at the Chancellor of the
Exchequer’s. It was in the same house where I used to see Lord
Orford. How different now from what it was! — not more in the
nakedness of the walls than the abilities and disposition of its
owner. The Earl of Bath has just had a great windfall by the
death of one Mrs. Smith. She was mistress to the late Earl of
Bradford, who had settled upon her and her son an estate of about
8000/. a year, and in case of the son’s death without issue the dis-
position of it was given to her. The son became a lunatic, and is
now under the care of the Court of Chancery without any pro-
bability of recovery. The Earl of Bath had assisted the mother as
a friend to the Earl of Bradford. She in recompence has given
him, in case of her son’s death, the bulk of the estate. She has a
husband, who had so nice a sense of honour, that he would not
only have nothing to do with her while she was in that criminal
correspondence, but since would not meddle with the wages of
iniquity, and so left her and every thing to her own conduct.
“IT would have you make haste to town and keep me out of bad
hands, for J am in great danger of growing a rake whilst left to
myself, for I have been no less than twice at the play in a week’s
* See Lives of the Chancellors, vol. vy. ch. cx].
LIFE OF CHIEF JUSTICE RYDER.
time. It’s true the immediate temptation was to see Garrick, but
how soon I may recover my youthful taste for diversion I can’t
say. I’m glad the Bishop is coming to town.
“ Adieu, my dearest,
De tag
The following letter, written next day, ingeniously assigns
a very innocent origin to a headache with which Sir Dudley
was then afflicted. But we cannot place exactly the same con-
fidence in these effusions asin Pepys’s Diary, which was never
meant to meet even the eye of a wife, and therefore conceals
nothing that she ought not to know. The headache might
perhaps have been traced to a second bottle at the Chancellor
of the Exchequer’s, in which the preceding letter indicates
that Mr. Attorney had indulged, although he was afterwards
to plead before the Chancellor: —
“ Nov. 4. 1742.
“ My Dear, — The Bishop is come very well, after a pleasant
journey. I wish I had seen you come in at the same time ; but I
must wait. I can’t easily believe that the excess of joy on our
meeting will make amends for the uneasiness I feel by your ab-
sence. Ill bear it, however, as well as I can. But you have not
yet told me the utmost period of your stay. Let me know it, that I
may be able to see to the end of my sorrow, and have the daily
pleasure of counting the end of its approach.
* You bid me tell you every post how my health stands, which
is of more moment to me as you are interested in it. I am obliged,
therefore, to let you know that I have had the headache all day.
You'll expect, I know, an account how it came. I believe it was
owing to my quitting my full-bottom and gown, without an equi-
valent, at the Chancellor of the Exchequer’s. I am sorry to give
you the trouble of hearing this; but I am bound to be ingenuous
and make a true confession. I fear I shall not be completely
careful of myself till you come and give that cheerfulness to my
spirits which makes me think it worth while to be well, as I
hardly do while you are absent.
“* Adieu, thou best of women,
« D.R.”
The next letter accompanied the coach and four heavy
blacks by which she was to be conveyed to London. The
vehicle was to be four days in going to Bath, and four days
coming back,—and there was yet no quicker transit for a
s 4
263
CHAP.
XXVII.
How a
lawyer
may ac-
count fora
headache
got by
taking
too much
wine.
264
CHAP.
XXVII.
Departure
of the
family
coach for
Bath to
bring back
Lady
Ryder.
Sir Dud-
ley’s joy at
her ap-
proach,
REIGN OF GEORGE II,
family; post saddle-horses were provided on the principal
routes for cavaliers, but those who travelled in their own
coaches were, for years after, obliged to perform the whole
journey with their own cattle.
“ Tuesday.*
“My Dear, — The coach goes to-morrow morning. J am im-
patient till it returns. We have never been separated so long.
How do you like it? Itis a solitude very different from that
which I had before we were united, when I did not know the hap-
piness of such a union.
“T am just come from the House. The great attack was not
made to-day. I understand our enemies can’t yet agree about it.
We, however, expect it soon, but without fear. Their strength
is tried to-day, though in a lesser matter, A Tory petition against
the sitting Member for Derby was presented to-day. They would
have brought it to the bar of the House, which was debated about
an hour, and we rejected it by a majority of 235 against 190.
We look upon this as a stronger question against us than any they
can make on their intended motion.+
“ My dear, I have the greatest satisfaction in the thought of
seeing you so soon. Think of me, and believe that I am and
always shall be, with the greatest tenderness,
** Your affectionate husband,
St GD Fo
“P.S. Your thoughts about not dining on the road and
making four days of it, fall in with what I wrote to you yesterday.”
I close my specimens of this conjugal correspondence with
an extract from the last letter he wrote to her during this
separation, which would be received by her as she stopped
for the night on her approach to London : —
Friday, Dec. 3.
“ My heart leaps for joy at the thought of the time of your
return being so near. I can hardly think of anything else, except
when business calls me off. We had another attack to-day by a
motion for a Place Bill. It seems principally calculated to abuse
Sandys and his companions, the new comers, by forcing them to eat
their own words of the last session. However, they can digest
* Indorsed “ Nov. 30. 1742.”
+ It was on election petitions, the merits of which were not at all regarded
that the strength of parties was chiefly tried, A few months before, Sir Robert
Walpole had been turned out by an unfavourable division on the petition com-
plaining of an undue election for Chippenham. (Jan, 28. 1742.)
LIFE OF CHIEF JUSTICE RYDER.
them with their places. We carried it in the negative by 221 to
196. This you will say is not a great majority. The truth is,
some people are hard put to it to distinguish between this session
- and the last; others are afraid of their boroughs; others think it
is a popular thing, and have a mind to seem patriots. So that
many who are with us in other things deserted us here.”
The amiable lady to whom these letters were addressed
was deeply afflicted by the loss of her husband, the Chief
Justice; but the disappointment in never wearing the
coronet upon which she had received so many congratu-
lations was no aggravation of her sufferings. Her exemplary
piety triumphed over her grief for her bereavement, and she
survived her husband many years.
I have already told how their son was at last ennobled.
His son Dudley, by a daughter of Terrick, Bishop of Lon-
don, was a most distinguished statesman and orator, — filled
high offices in the reigns of George III. and George IV., —
was created Viscount Sandon and Earl of Harrowby, —
and might have been Prime Minister if he had pleased.
The Chief Justice is worthily represented by the present
Karl, his great grandson, who, after having long served
in the House of Commons as member for the important com-
mercial constituency of Liverpool, is adding in the other
House of Parliament to the splendour of the name he bears
—so that old Sir Dudley must now rejoice over the entire
fulfilment of his grandfather’s prophecy.
265
CHAP:
XXVITI.
His de-
scendants,
A.D, 1809.
266
CHAP.
XXVIII.
Two Chief
Justices
of the
Common
Pleas,
Origin of
the Willes’s,
REIGN OF GEORGE II.
CHAPTER XXVIII.
LIFE OF CHIEF JUSTICE WILLES.
BrroreE devoting myself to my last and most illustrious
Chief Justice of the King’s Bench, Lord Mansfield, I must
beg leave to introduce two Chief Justices of the Common
Pleas, each of whom refused the great seal of Great Britain,
the one being the most ambitious lawyer of the 18th century,
and the other the least ambitious of all the lawyers recorded
in our juridical annals, — CHIEF JUSTICE WILLEs, and
Cuier Justice WILMot.
I have no respect for the former, and I shall dispatch him
very rapidly. Although a man of splendid abilities, he was
selfish, arrogant, and licentious; and, although at one time
there was a strong probability that he would play a very
important part in public life (in which case an interest would
have been cast upon his early career), he died disappointed
and despised. Among the bright legal constellations he
twinkles a star of the tenth magnitude, and he does not
deserve to be long examined by the telescope of the bio-
grapher.
The Chief Justice himself affected to derive his name from
VELLUS or VILLUS, and tried to connect his ancestor with the
ARGONAUTS who carried off the GOLDEN FLEECE ; — while
his detractors preferred the etymology of VILIS or VILLICUS,
and insisted that if the individual of his race who first bore a
surname was not a villein, he was not higher than the bailiff
of the lord of a manor. In sober truth, the Willes’s were a
respectable family of small estate, long seated in the county
of Warwick. For centuries they had been contented to
plough their paternal acres, occasionally sending off a younger
son to be an attorney or a country parson; but they sud-
denly rose into distinction, for while the “Head of the
LIFE OF CHIEF JUSTICE WILLES.
House ” (as he loved to call himself) was a Chief Justice, and
almost Lord Chancellor, his younger brother sat in the House
of Lords as a Bishop.*
Of the lawyer, till he entered public life, it will be enough
to relate that he was born in 1685; that he was educated at
Lichfield Free Grammar School, and Trinity College, Oxford;
that he was called to the bar in 1707; that from his youth
upward he showed a wonderful combination of steady
application to business and striking gravity of manner with
extreme profligacy of conduct; and that his determination
was to reach the highest honours of his profession at any
sacrifice of money, of ease, of principle, and even of pleasure.
His success at the bar was respectable, but not such as to
enable him to rely on professional reputation. So he resolved
to plunge into politics, and on the dissolution of parliament
in 1722 he declared himself a candidate for Weymouth, long
one of the most venal and most expensive boroughs in
England. After a severe contest, which cost him more than
all he had been able to save from his fees, he was returned,
and joyfully took his seat in the House of Commons.f
As Sir Robert Walpole had gained undisputed power on
the death of Lord Sunderland, Willes enlisted himself under
the banner of the new minister, and hoped to gain favour
not only by making himself useful in parliament, but by a
rich stock of facetious stories, in which his patron took delight,
and which, as the second bottle was going round, he could
bring out with redoubled effect from his usual starchness of
demeanour. At first every thing turned up to his mind.
Without making any dashing speech, he was serviceable to
Government; he assisted in carrying through the House of
Commons the proceedings against Bishop Atterbury and the
bill for doubly taxing Roman Catholics, —and he added to
the popularity of the Government by distantly rivalling Sir
Robert himself, after the ladies had withdrawn, in drawing
forth loud roars of laughter from the squires who had been
invited to dine at Chelsea, Accordingly, before two sessions
* The Right Rev. Edward Willes, D.D., successively Bishop of St. David’s
and of Bath and Wells, consecrated in 1742—died in 1773.
{ In subsequent parliaments he was returned at a small expense for the close
borough of West Looe.
267
CHAP.
XXVIII.
Sir John’s
early
career,
He enters
parliament,
+ and is made
a Welsh
Judge.
268
CHAP.
XXVIII.
Subse-
quent dis-
appoint-
ments.
Nov. 30.
lirhetens
He becomes
Attorney
General.
March 13.
1734.
REIGN OF GEORGE II.
had expired, such merits were rewarded witha “ Welsh wig; ”
he was appointed “Second Justice of Chester,” and he
thought the great seal within his grasp. But, afterwards, his
patience was long and cruelly tried, and many bright gleams
of hope were succeeded by the alternating gloom of despond-
ency. When he had been eleven years in parliament he was
still only “Second Justice of Chester.” Nevertheless he
could not complain of being ill-used, for he did not expect to
supersede Sir Philip Yorke, who had long been Attorney
General; and although the office of Solicitor General had
twice become vacant, he did not deny the superior claims of
Sir Clement Wearg and Mr. Talbot. One of these com-
petitors was removed by a premature death *, another suc-
ceeded Lord Raymond as Chief Justice of the King’s Bench,
and the third obtained the great seal on the resignation of
Lord King.
Willes at last got the step which he thought insured him
all else that he desired;—and, to crown his present feli-
city, at the same time that he was constituted Attorney
General he was promoted from “ Second” to be ‘ Chief
Justice of Chester,”—the duties of law officer of the Crown,
and of a Judge in this County Palatine and in the prin-
‘cipality of Wales, not being considered incompatible.
Soon after, it was thought that the Administration was in
danger from a coalition, brought about by Lord Bolingbroke,
between the Tories. and the discontented Whigs. Their
grand movement was an attack upon the SEPTENNIAL Act,
which the Tories had always strenuously opposed, and which
Whigs not in office, nor likely to be, although they formerly
supported it, had lately discovered to be highly unconstitu-
tional. In the famous debate on Mr. Bromley’s motion for
leave to bring in a bill to repeal it, Mr. Attorney General
Willes, afraid of being speedily shorn of his new honours,
* From “A Brief Memoir of Sir Clement Wearg,” published in 1843, by his
relative, George Duke, Esq., of Gray’s Inn, barrister-at-law, he appears to have
been a most learned, eloquent, and excellent man. He died of a violent fever,
in the prime of life, on the 6th of April, 1726, when he had been three years
Solicitor General. He was succeeded by Talbot, afterwards Lord Chancellor.
+ Down almost to the time when these jurisdictions were abolished, Sir William
Garrow and Sir John Copley held, at the same time, the offices of Attorney Ge-
neral and Chief Justice of Chester. We have now lost the professional joke of
the prime minister baiting his rat-trap with Cheshire cheese.
LIFE OF CHIEF JUSTICE WILLES.
made an extraordinary exertion, and delivered a speech which
was very much applauded. I give a few extracts from it to
show how such topics, which still annually come before us,
were treated a hundred years ago: —
“ Gentlemen have been pleased to put us in mind of our ancient
constitution; but it has been so often varied and improved, that
they must be puzzled to fix the time when it was in that perfect
state which we ought at present to adopt and for ever abide by.
Are we asked to go back to the wittenagemote, or to prelates and
barons, — without any representatives from counties, cities, or
boroughs? or to prelates, barons, and representatives of counties,
cities, and boroughs,—sitting together in one and the same as-
sembly? Rather than admire the constitution when unformed
and weak, I would admire it in its strength and vigour. There-
fore I admire it as I find it, and I would rather go on to improve
it than mar the improvements which it has received. Let me
observe that at the Revolution there was nothing in the Claim of
Rights or in the Bill of Rights about annual or triennial par-
liaments. When we read of the advantage of ‘frequent par-
liaments,’ we are to understand frequent sessions of parliament —
not that the parliament is to be changed every session. We all
know that the Triennial Bill was neither introduced nor promoted
by the patrons of liberty or the real friends to King William’s
government. The object of the measure was to distress that good
prince, and the bill when passed was found to be of dangerous
consequence to the prosperity of the nation and to the quiet of the
subject. At last the Septennial Act passed, which is the true
medium between the unlimited common law prerogative of the
Crown and the other extreme of statutably extinguishing every
parliament after it has sat. three years, whatever perils may arise
in any particular crisis from there being no parliament, or from a
general election. If King William had enjoyed the benefit of
septennial parliaments, he would have carried on war and he
would have negotiated peace with much greater advantage, he
would have escaped the treaties for partitioning the Spanish
monarchy which have been so much objected to, and he would
have been better able to humble the power of France and to secure
the happiness of this nation. I have reason therefore to say that
the constitution has now reached its highest perfection. The
alleged power of corrupting a parliament which sits long, we may
know to be imaginary from the fact that King Charles II.’s Long
Parliament, which at first was called the Pensionary Parliament,
269
CHAP.
XXVIII.
A.D. 1734.
His speech
against the
repeal of
the Septen-
nial Act.
270
CHAP.
XXVIII.
A.D. 1734
—1737.
REIGN OF GEORGE II.
- and was disposed to make him absolute, at last became so, refrac-
tory that he accused it of a design to dethrone him, and he abruptly
and indignantly dissolved it. Short parliaments lead to corruption.
Corruption is not of one sort only; it appears in many shapes.
An elector may be bribed without giving him money, and members
of this House may be bribed without getting any place or prefer-
ment from the Government. If, to please his borough and to
secure his next election, a member votes against his judgment, is
not this bribery, and bribery the most degrading and. pernicious ?
An honourable gentleman says that septennial parliaments are
necessary to support falling ministers. Sir, I can only say that I
have been travelling lately in many parts of England, and, where-
ever I have been, I have found the present ministers held in high
estimation; insomuch that, when this parliament has sat out its
seven years, I am convinced that another will be returned for
seven years more, equally discerning, loyal, independent, and well-
disposed as the present.”
Mr. Attorney’s speech gained him much credit, although
- the victory was chiefly ascribed to Sir Robert Walpole’s, —
Jan. 23.
1737.
He is made
Chief Jus-
tice of the
Common
Pleas.
Feb. 14.
His disap-
pointment
on the
death of
Lord Chan-
cellor
Talbot.
in which he drew such a character of Bolingbroke that
he made the Whigs ashamed of acting under him; and by
which, according to Coxe, he drove the disappointed in-
triguer abroad, in despair of ever recovering any ascendancy
in England.*
When Willes had been Attorney General ‘three years, the
office of Chief Justice of the Common Pleas fell vacant, and
he accepted it, —far from suspecting that he was thereby to
be for ever “shelved,” but considering that it would prove,
as it had before done, a stepping-stone to the woolsack. He
had hardly been installed in this intermediary dignity when
he thought that his fondest expectations were to be in-
stantly realised, all England being thrown into mourning by
the sudden death of Lord Chancellor Talbot. To his unspeak-
able mortification, although he had continued in the good
graces of the Prime Minister, and still played his part in
retailing his old stories to the country squires, adding anec-
dotes of his own adventures, he was never once thought
of for advancement on this vacancy. Whether Sir Robert
* 9 Parl. Hist. 394—479.; Coxe’s Memoirs of Sir R. Walpole, p. 426.;
Lord Mahon’s History, ii. 264--272.
LIFE OF CHIEF JUSTICE WILLES.
Walpole dreaded that habits and conversation which he could
not openly censure—for they were very congenial to his
own—might not be quite suitable to the grave magistrate
who was to be placed in the “ marble chair” and to preside
over the general administration of justice, I know not; but he
immediately offered the great seal to Lord Hardwicke, then
Chief Justice of the King’s Bench; and, upon this grasping
aspirant trying to make too hard a bargain in demanding
pensions and tellerships, he threatened to go to Fazakerley,
a professed Tory lawyer and suspected Jacobite, saying, as
he took out his watch, “It is now twelve o'clock ; if by one
you do not agree to my terms, — by two, Fazakerley will be
Lord Keeper, and one of the staunchest Whigs in England.”
The treaty was instantly concluded; and very probably
there was a secret article in it that Willes should not even be
promoted, as he might naturally expect to be, to the office of
Chief Justice of the King’s Bench ; for Lord Hardwicke was
jealous of him, hated him, and wished to be succeeded by
some safe man, like Mr. Justice Lee, who never would be
formidable as a rival.
Willes henceforth entirely renounced all intercourse with
Sir Robert Walpole, and entered into a political connection
with the leaders of opposition, particularly with Lord Carte-
ret. When the division on the Chippenham election showed
that a change of government must inevitably take place, he
believed that the Chancellor would go out with the Prime
Minister, and that his own elevation was at hand. But, to
the surprise of mankind, Pulteney refused to take office him-
self, and consented to the Duke of Newcastle and Lord
Hardwicke—whom he had often abused so bitterly — still
holding their places.
The only game left to Willes was to try to create jealousies
between the new section of the Cabinet and the old. With
this view he strove to stir up Carteret to claim the premier-
ship, and to engross all the patronage of the Government.
But this most accomplished though most flighty statesman,
intent on diplomatic negotiations and royal smiles, had no
steady ambition, and neglected all those smaller cares by
which alone party influence can be acquired or retained. On
271
CHAP.
XXVIIL-
Oh i a feeire
A.D. 1742,
His in-
trigues
with Lord
Carteret.
272
CHAP.
XXVIII.
A.b. 1746.
A.D. 1756.
He is made
First Lord
Commis-
sioner of
the Great
Seal.
November.
REIGN OF GEORGE II.
one occasion, Willes calling upon him to apply for an ap-
pointment, “ What is it to me,” he cried, “ who is a judge,
and who isa bishop? It is my business to make kings and
emperors, and to maintain the balance of Europe.” “ Then,”
answered the Chief Justice, “those who want to be judges
or bishops will apply to those who will condescend to make
it their business to dispose of judgeships and bishoprics.” *
Willes, in fulfilment of his own prophecy, for some time
cultivated the Pelhams, but found that they were unalterably
attached to Lord Hardwicke ;—and then he professed himself
an adherent of Pitt. In this weary round he often sank into
low spirits, and the sensual gratifications which had soothed
his political disappointments began sadly to pall upon him.
At last, the dreams of power, in which alone his imagination
now luxuriated, seemed actually fulfilled. In truth, the grand
object of his ambition was placed within his reach, and he
lost it by his own gross mismanagement, so that he was left
without the consolation of complaining of his evil fortune.
When the Duke of Newcastle and Lord Hardwicke were
driven to resign, the ministers who, for a short time, inad-
hesively formed the new cabinet under the nominal leadership
of the Duke of Devonshire were favourably inclined to Sir
John Willes, and adopted him as their principal legal associate,
relying upon him to counteract the machinations of the VoL-
PONE, who, he said, had unjustly kept him out of the office
of Chancellor for twenty years.| But, on account of the
prejudices of the King, who had falsely been told that the
Chief Justice of the Common Pleas had in him as little daw
as morality, there was a serious difficulty in at once con-
ferring upon him the dignity to which he aspired. An arrange-
ment was made that the great seal should be a short time in
commission, that he should be first commissioner, and that it
should, ere long, be transferred to his sole custody, with the
title of Lord Chancellor, or Lord Keeper, and a peerage.
Accordingly, on the 19th day of November, 1756, he took
* Horace Walp. Mem. of Geo. II. i. 147.
+ “Lord Chief Justice Willes was designed for Chancellor. He had been
raised by Sir Robert Walpole, though always browbeaten by haughty Yorke,
and hated by the Pelhams, for that very attachment to their own patron. As
Willes’s nature was more open, he returned their aversion with little reserve,
He was not wont to disguise any of his passions.” — Walp, Mem. Geo, IT. i. 76.
LIFE OF CHIEF JUSTICE WILLES.
his seat in the Court of Chancery, and saw the mace and the
embroidered purse containing the great seal lying before
him ; but le was galled by the thought that he enjoyed only
divided empire, for Sir Sidney Stafford Smythe was on his
right hand, and Sir John Eardley Wilmot on his left, with
co-ordinate authority.
Lord Chief Commissioner Willes did the business of the
court with much ability, and a general expectation was en-
tertained that he was to turn out an eminent equity judge.
He likewise reformed the scandals of his domestic establish-
ment, and every obstacle to his elevation seemed removed.
The horizon was for a time overcast, on the dismissal of
Mr. Pitt and the dissolution of the Duke of Devonshire’s
short and ill-concocted. government; but a brighter sun-
shine irradiated the steps of Sir John Willes when the fa-
mous coalition was completed between Mr. Pitt and the
Duke of Newcastle. These chiefs, without feeling any at-
tachment to him, were both contented, for the sake of
convenience, that he should be admitted into the cabinet, and
should be created Lord Chancellor. ‘To please the King,
they first offered the great seal to Lord Mansfield, knowing
full well that he would decline it; and likewise to Sir John
Eardly Wilmot, from whom they were sure to receive a
similar answer, though for very different reasons. ‘The tender
was then to be made in due form, and with the King’s express
authority, to Sir John Willes; but his Majesty was, as yet,
in very ill humour, on account of his closet being stormed by
the “ Great Commoner,” and he positively declared that no
new peerage should then be created. The First Lord
Commissioner was much nettled by hearing that the great
seal had been hawked about when he had considered that
it was his own exclusive property. Further, knowing
how it had been declined by all who were regarded as ca-
pable of holding it, he gave himself very haughty airs,
thinking that the game was irrevocably in his own hand.
Therefore, under the disguise of disliking the proffered eleva-
tion, he talked of the comfort and security of the ‘ cushion
of the Common Pleas,” dwelt upon the sacrifice which he
was called upon to make, and positively refused to accept the
VOL. II. a;
273
CHAP.
XXVIII.
Nov. 19.
1756.
He loses
the Chan-
cellorship
by his own
mis-
manage-
ment,
274
CHAP.
XXVIII.
A.D. 1756.
REIGN OF GEORGE Ii.
great seal unless he had the promise of a peerage, which had
been given to every Lord Chancellor and Lord Keeper since
Sir Orlando Bridgman in the reign of Charles II.* The
conference was broken up; but Willes, though very indignant,
was perfectly confident that his terms must be acceded to,
and he remained at home in the belief that he should speedily
receive a summons to be sworn as Chancellor, with a request
to know what title as a baron would be agreeable to him.
Mr. Pitt, who had secured to himself unlimited power to
carry on the war according to his own views, and antici-
pated his coming glory, was unwilling to run the risk of
quarrelling with the King upon such a paltry point as a legal
peerage ; and, instead of making any further effort to gratify
Sir John Willes, he offered the great seal to Sir Robert
Henley, who, belonging to the Leicester House party, had
hitherto been reckoned an enemy, but who was not likely to
stand out for conditions, reasonable or unreasonable, and who,
from his very moderate abilities, could never be formidable,
Henley, who had not expected such an offer from the new
ministry any more than to be made Archbishop of Canterbury,
joyfully jumped at it, without saying a word about peerage,
pension, or tellership; and the arrangement was completed
the very same morning that it was first proposed. The Lord
Keeper elect then thought that he could not do less than
announce his appointment to the First Lord Commissioner,
who had the custody of the great seal, and courteously arrange
with him as to the convenient time when the bauble might
be transferred to him. Willes was at his villa, walking about
in the garden, still chafed by the affront which he considered
he had received, but still not doubting that the proper amende
would be made to him. He knew that Henley could not
well be the messenger for that purpose, but he had not the
most distant conception that his visiter had a personal
* He chose to forget Sir Nathan Wright in the reigns of William III. and
Queen Anne.
t A story was circulated, but I believe without any authority, that he had
fixed upon tbe title of Lorpv Corcuos that he meant to have the Argo galley
for his crest, a “fleece or” to be added to his arms, and two argonauts for his ~
supporters. Horace Walpole merely says, in his usual epigrammatic style, —
** Willes proposed to be bribed by a peerage to be at the head of his profession ;
but could not obtain it.” (Mem. Geo, II. ii, 226.)
LIFE OF CHIEF JUSTICE WILLES. 275
interest in the controversy ; and, without leaving any opening _CHAP.
for the intended communication, he burst out into a state- aie
ment of his grievances, thus concluding: “ Would any man g.one he.
of spirit have taken the seals under such circumstances? tween Sir
would you, Mr. Attorney?” Henley, thus appealed to, ei ate
gravely answered, “ Why, my Lord, I am afraid it is rather Sir Robert
too late to enter into such a discussion, as I have now the aa
honour of waiting upon your Lordship to inform your Lord-
ship that I have actually accepted them.”
Poor Willes never held up his head again ;—and he re- Sir John
ceived another blow, which“utterly crushed him, when Lord eee
Keeper Henley, preparatory to the trial of Lord Ferrers for hearted.
murder, was, without solicitation, created a peer, that he
might preside on the occasion as Lord Steward.
The death of George II., the prelude to so many changes, Mareh 27.
brought no consolation to the heart-broken Chief Justice; for 17°:
Henley, from his long connection with Leicester House, was
a personal favourite with the new Sovereign, and was not
only allowed by him to get tipsy after dinner instead of
holding evening sittings, but was raised to be Lord Chan-
cellor from being only Lord Keeper, and was created Earl of
Northington.* Friends in vain attempted to soothe the
wretched Chief Justice, by reminding him of the vanity of
worldly greatness, by pointing out to him that he ought to
be satisfied with the measure of prosperity he had enjoyed,
and by advising him, in estimating his success in life, to
think rather of the many competitors whom he had surpassed
than of the few who had been enabled to surpass him. But
he answered in the words of Sir Christopher Hatton to
Queen Elizabeth, “ All will not do: no pulleys will draw up
a heart cast down.” For several terms before his death he
was unable to go into court. He languished till the 15th of
December, 1761, when he expired at his house in Blooms- Death of
bury Square, in the 76th year of his age. He was buried ae ha
with his ancestors in the family vault at Bishop’s Ickington,
in Warwickshire.
I am afraid I may be blamed for neglecting his judicial His judi-
; o. : . . . . ial deci-
decisions, but I cannot discover any important points which jio,.°"
* Lives of the’ Chancellors, vol. y. ch. exl.
on
276
CHAP.
XXVIII.
AsDe Lio’
REIGN OF GEORGE II.
he ruled, although he presided for so long a period in
one of the superior courts in Westminster Hall. ‘There is
said to have been very little business in the Court of Common
Pleas in his time; a circumstance thus accounted for by
Horace Walpole : —
“ He had great quickness of wit, and a merit that would atone
for many foibles—his severity to, and discouragement of, that
pest of society, attorneys. Hence his court was deserted by them,
and all the business they could transport carried into Chancery,
where Yorke’s filial piety would not refuse an asylum to his father’s
profession.” *
I believe that, notwithstanding his immoralities, he was a
sound lawyer, that his administration of justice was pure and
impartial, and that his fame as a magistrate would have been
splendid in proportion to the opportunities enjoyed by him
of showing his powers and acquirements. He either had
extraordinary authority with his puisnies, or extraordinary
discretion in yielding to the best opinion propounded by any
of them and in persuading the others to acquiesce init. A
case occurring in which the Court was divided, he said, “I
think myself unfortunate whenever I differ in opinion with
any of my brethren: however, I have the pleasure to reflect
that, in the twenty years I have sat here, this is but the
third time that there has been any difference of opinion be-
tween any of us.” They appear to have been unanimous
ever after. +
Chief Justice Willes sat along with the other Judges on
* Mem. Geo. If. i. 76. This is a spiteful allusion to Lord Hardwicke
having been the son of an attorney. But the suggestion that the business
which ought to have come into the Common Pleas was done in the Court of
Chancery, shows that the memoir-writer is entitled to very little weight on such
a subject.
+ The case referred to is Buxton v. Mingay, 3 Wilson, 70., well known and
very distasteful to medical men; the question being, “ whether a surgeon is an
inferior tradesman within the meaning of 4 & 5 W.&M. e 23. s. 10.2”
The Chief Justice took the liberal side, saying — “I am clearly of opinion the
legislature could never intend that a surgeon is ‘an inferior tradesman, or ‘a
dissolute person ; ’ although he may sport without being qualified to kill game,”
But said Bathurst, J., — “I can never be of opinion that the legislature in-«
tended to permit every master of any little mechanic trade to neglect his trade
and go a-hunting. I am of opinion that every tradesman is inferior who is not
qualified, and that is the only line we can draw between inferior and superior.”
Clive, J., concurred with him. — [ know not in what category they would have
placed “an unqualified judge ;” but I should call him “ an inferior tradesman.”
LIFE OF CHIEF JUSTICE WILLES.
the trial of the rebels at St. Margaret’s Hill, Southwark * ;
but he was not called upon to take any leading part, — Lee,
Chief Justice of the King’s Bench, being present; and he
had nothing to do with any other state prosecutions.
The most interesting case which ever came before him was
that of Elizabeth Canning, which divided and agitated the
country almost as much as the Catholic Question or the Reform
Bill in more recent times. He very sensibly agreed with
the jury, who convicted her of perjury; he refused her a
new trial, and he proposed that she should be transported
beyond the seas for seven years. Generally, the Lord
Mayor and aldermen, who are in the commission at the Old
Bailey, implicitly submit to the opinion of the judges, as
well in awarding punishment as in disposing of questions of
law; but, on this occasion, Alderman Sir John Barnard
moved an amendment, “that the punishment should be only
six months’ imprisonment,” when a poll was taken, and the
sentence proposed by the Chief Justice was carried by a
majority of eleven (including six judges) against eight (who
were allaldermen). Willes appears to have conducted himself
on this occasion with firmness, good temper, and dignity. t
He did nothing to wipe off the reproach cast upon the
English bar for a contempt of literature; for he not only
never wrote a page for the press in prose or rhyme, but he
did not at all mix with men of letters, and his talk was either
about law or lewdness. I am sorry to say that the ac-
counts handed down to us of his private life are lamentably
unfavourable as far as morality is concerned. Even ac-
cording to the low standard which then prevailed, he was
grossly peccant; and, however little censorious the age
might be, his conduct seems to have been severely con-
demned. Although a married man, with a grown-up family,
there were violations of decorum under his own roof which
el Gate rer ao Oe
t 19 St. Tr. 262—694, This is one of the most extraordinary cases of
popular delusion on record. Although the romantic story which Elizabeth Can-
ning had told of being stolen by a gipsy woman, whom she tried to hang for the
purpose of concealing her own elopement with a lover, was disproved by the
clearest and most irrefragable evidence, and by the wholly contradictory accounts
which the girl herself had given of it, more than half the nation stood up for,
and believed in, her innocence; and innumerable pamphlets were published for
her, as well as against her.
Tro
277
CHAP.
XXVIII.
A.D. 1746,
a.v. 1753.
His con-
duct on the
trial of
Elizabeth
Canning.
His private
life.
278
CHAP.
SAVE:
His de-
scendants.
REIGN OF GEORGE II.
transpired and gave very general offence. Hvery memoir.
writer who notices him gives the following anecdote, which,
therefore, I may not omit. A dissenting clergyman, shocked
by the rumours which he heard of Lord Chief Justice
Willes’s domestic establishment, called to remonstrate with
him, and, if possible, to stir him up to repentance. After
some allusions, which, though intelligible enough, the Chief
Justice pretended not to understand, this dialogue ensued : —
Minister: **'To come to the point, then, my Lord, they say
that one of your maid-servants is now with child.” Chief
Justice: “ Whatis that tome?” Minister: “ But, my Lord,
they say that she is with child by your Teordebirile Chief
Justice: “What is that to you?”™
John, his.eldest son, sat in several parliaments for Ayles-
bury and Banbury, but gained no distinction; and Edward,
his second son, who was bred to the bar, although for some
time Solicitor General and a Puisne Judge of the King’s
Bench, was of slender intellect, insomuch that once, when
pleading a cause, and being checked for wandering from the
subject, he exclaimed, “I wish you would remember that I
am the son of a Chief Justice;” upon which old Mr. Justice
Gould answered, with much simplicity, “ Oh, we remember
your father, but he was a sensible man.”
Chief Justice Willes’s heirs in the male line have long
been extinct, but many distinguished persons still flourishing
are descended from him through females. If by good luck he
had actually reached the woolsack, this descent would have
been considered a great honour; but it is difficult to say why
there should have been such a difference merely from his having
pronounced a certain number of equitable decrees, good or
bad, and having been commemorated in several volumes bound
in calf-skin and entitled “ Reports TEMPORE Lorp CHAN-
CELLOR WILLEs.” Had he suspended his claim to a peerage,
all this glory, by which the eyes of lawyers are dazzled,
would have been showered down upon him.
* Horace Walpole, who relates the story, says that, in addition to “an un-
bounded passion for women,” he was “notorious for gaming ;” but I do not
find this imputation cast upon him by any other writer, and it is wholly incon-
sistent with his regular application to business. See Mem. Geo. IIL., i. 76.
LIFE OF CHIEF JUSTICE WILMOT.
CHAPTER XXIX,
LIFE OF CHIEF JUSTICE WILMOT.,
Witmor, a succeeding Chief Justice of the Common Pleas,
enjoyed the remarkable distinction of being a lawyer without
ambition, and more than once refused the great seal, — not
from any haggling about the terms on which he should accept
it, nor from any dread of its precarious tenure, or calculation
that he might enjoy more power and wealth by remaining in
the position which he occupied, but from a genuine contempt
of power and of wealth as well as of titles, and an ardent love
of leisure, repose, and obscurity. Although he certainly was
altogether free from the last infirmity of noble minds, and of
the sin by which the angels fell, we may lament that he
never displayed those high aspirations and heroic efforts to
be of service to others which make ambition virtue.
John Eardly Wilmot was the second son of Robert Wil-
mot, a gentleman of respectable family and moderate fortune
in the county of Derby. His mother was daughter and co-
heiress of Sir Samuel Murrow, a Warwickshire baronet.
He was born on the 16th of August, 1709, Having re-
ceived the first rudiments of his education at a school in
Derby, he was sent to the free school at Lichfield, under the
tuition of Mr. Hunter, who is celebrated for having flogged
seven boys who afterwards sat as judges in the superior
courts at Westminster at the same time.* Samuel Johnson,
who had likewise been subjected to his flagellation, gave this
account of him: — “ The head master was very severe, and
wrong-headedly severe. He used to beat us unmercifully ;
* Among these, besides Wilmot, were Lord Chancellor Northington, Sir
Thomas Clarke, Master of the Rolls, Chief Justice Willes, and Chief Baron
Parker. Lord Mansfield is generally included in the list; but he never saw the
city of Lichfield tili he had been called to the bar.
t 4
279.
CHAP.
XXIX.
Singular
character-
istic of
Lord Chief
Justice
Wilmot,
His birth
and edu-
cation.
280.
CHAP.
XXIX.
Johnson
and Gar-
rick his
school-
fellows.
A.D. 1724.
REIGN OF GEORGE II.
and he would beat a boy equally for not knowing a thing or
for neglecting to know it. He would call up a boy and ask
him Latin for a candlestick, which the boy could not expect
to be asked. While Hunter was flogging his boys un-
mercifully, he used to say, ‘And this I do to save you from
the gallows.’ ”* However, under such harsh discipline young
Wilmot, like young Johnson, became an excellent Latin
scholar, and was imbued with a love of learning. It is re-
markable that, although they were several years class-fellows
at Lichfield, there never seems to have been the slightest
intercourse between them in after-life ; but the Chief Justice
used frequently to mention the Lexicographer as “a long,
lank, lounging boy, whom he distinctly remembered to have
been punished by Hunter for idleness.”
When David Garrick, who was at the same time a very
little boy in the lowest form, made his first appearance in
Goodman’s Fields, in October, 1741, Wilmot went to ap-
plaud him, and, having often afterwards gone to admire him
in his various parts, was present at his last performance at
Drury Lane in June, 1776, when he took a final leave of
the stage; but there was no private intimacy between them,
notwithstanding David’s passion for legal dignitaries, which
made him pride himself so much upon his friendship with
Lord Camden and Lord Mansfield.t This was probably
Wilmot’s fault, for he was not only afraid of being dis-
tinguished himself, but he wished to avoid those who had
gained distinction.
After he had been some years under Hunter at Lichfield,
the better to prepare him for the University, he was re-
moved to Westminster School; and here he applied diligently
to his books, without ever mixing in the amusements of his
schoolfellows.
He spent the next four years as a recluse student at Tri-
nity Hall, Cambridge. His ruling passion was to enter the
Church, in the hope of obtaining a small living, and spending
* Boswell, i. 21,22. Johnson had so high an opinion of the good effects
of such severity, that when he heard of a schoolmaster having abolished flogging,
he exclaimed, “I am afraid that what his boys gain at one end they will lose
at the other.”
t Boswell, iii. 336,
LiFE OF CHIEF JUSTICE WILMOT.
his days ina remote part of the kingdom, conversing only
with the peasants who might be under his pastoral care. His
father, however, who appreciated his vigorous talents and his
solid acquirements, would by no means agree to this scheme,
and insisted on his entering the profession of the law. The
dutiful son submitted, though reluctantly, and, before he left
Trinity Hall, was initiated in the Roman Civil Law—a study
for which this place of education has been always renowned,
and to which he afterwards ascribed his proficiency in the
Common Law of England.
In the meanwhile he kept terms in the Inner Temple, and
after three years’ residence there he was called to the bar.
We are left entirely in ignorance of the plan of study which
he pursued, except that it was solitary; but we know that,
without going into an attorney’s office, or attending much in
court, or appearing at the “ Readings,” which were still kept
up, he rendered himself a consummate jurist. Instead of
being vain of his acquirements, he was earnestly desirous of
concealing them; asif afraid that the attorneys, hearing of
his familiarity with black-letter learning, should send him
retainers.* He was exceedingly successful in gaining his
wishes, and for many years he was allowed to remain un-
molested. But going the Midland Circuit, in spite of all his
efforts he had a little business from family connections in his
own county: avoiding display as much as possible, he was
on several occasions compelled to show what there was in him,
—and by and by, at the Derby Assizes, he was in every
cause. Still he contrived to preserve his obscurity in Lon-
don, tiil, arguing some demurrers and new trials in causes
from his circuit, he was at last betrayed to Westminster
Hall as a deep lawyer and powerful advocate.
Sir Dudley Ryder, the Attorney General, thereupon ap-
* There was a valued friend of mine, now no more, who went the Oxford
Circuit for years, pour passer le temps, but who had a horror, which was well
known, of being professionally employed. At last he affronted an attorney by
making him, rather unceremoniously, surrender a place in court when a very
interesting trial was coming on, saying that “ barristers only were entitled to
sit there.’ The retreating attorney was heard to mutter, “I will haye my
revenge of him.” So, the same night, he sent a brief in an important cause to
his antagonist; who returned it with a message that he had been sent for on
urgent business to London. The frightened barrister left the assize town early
next morning, and never again appeared upon the circuit.
281
CHAP.
X XIX.
June, 1732.
He is
called to
the bar.
His dread
of being
known or
employed.
A.D. 1742,
282
CHAP.
X XIX.
A.D. 1742
—1752.
He be-
comes
« Devil” to
the At-
torney
General.
He refuses
asilk gown,
the ap-
pointment
of King’s
Serjeant,
and a seat
in parlia-
ment.
He is
counsel for
the de-
fendant in
a crim. con.
cause.
REIGN OF GEORGE Il.
+
pointed him “ Treasury Devil;” and, deriving important aid
from his services, and being very desirous to bring him forward,
mentioned him to the Lord Chancellor as a man who might
be an ornament to the profession, and would one day show
himself qualified for the highest judicial station. In con-
sequence he was offered a silk gown. Secretly resolved
to refuse it, he wished to have some countenance in the
opinion of a friend whom he pretended to consult, —and to
whom, after very clearly disclosing his inclination, he said :
“Consider it well, and tell me what you think of it, for
when I have once hoisted the sail I cannot take it down
again; therefore it requires a proper consideration and di-
gestion in every respect. The withdrawing from the eyes of
mankind has always been my favourite wish ; it was the first
and will be the last of my life.” His friend advised him ‘* to
hoist the sail, sure of a trade wind ;” but, against all remon-
strances, he said he would not go within the bar to contend
with the King’s Bench leaders. It was then proposed to him
that, if he would take the coif, he should immediately have
the rank of King’s Serjeant; the encouraging remark being
added, that ‘in the drowsy confines of the Common Pleas
he might remain without any unpleasant collision or noto-
riety.” But he declared his immutable determination “ to
live and die in a stuff gown.” *
He was once, sorely against his will, obliged to lead for
the defendant in an action for crim. con. falsely brought
against an old schoolfellow, who insisted on having him for
his counsel. As the trial proceeded, he got over his nervous-
ness, and delivered an excellent address, which carried the
verdict. The parties living near Lichfield, David Garrick
took a lively interest in the result, and attended in court,
planting himself in a snug corner where he expected to re-
main unobserved. The following is the account he delivered
of the performance of his old schoolfellow :—
“ There appeared much contradiction and confusion in the evi-
dence given by the witnesses, till at length rose Mr. Wilmot, who
immediately explained the whole in so clear and animated a man-
* Some accounts say that he called this his Domrno, and that, like Rabelais,
he repeated the text Beati sunt qui moriuntur in Domino.”
LIFE OF CHIEF JUSTICE WILMOT.
ner as to charm as well as inform every one who heard him, I
was delighted with the wit and sprightliness with which he un-
ravelled the affair, — pluming myself upon being quite private and
unnoticed in so great a crowd, and little thinking that I should be
soon brought upon the stage myself. But the counsel, having
developed the plot which had been laid against his client, observed,
‘In short, gentlemen of the jury, it is nothing more than the
story of The Intriguing Chambermaid and The Lying Valet. *
And, immediately casting his sparkling eye upon me in my retired
corner, in a moment he drew the notice of the whole Court upon
me, and I thought I should have sunk into the earth.”
Horace Walpole relates, that, appearing at the bar of the
House of Commons as counsel in the Wareham election, he
was reprimanded by Pitt, who said that “he brought with
him the pertness of his profession ;” and that, being prevented
by the Speaker from replying in his own vindication, he
threw down his brief, and declared that “he never would
plead there again.” But I doubt whether Wilmot ever was
in this line of practice, and I am convinced that he was not
the man to wish to gain éclat by such a conflict.
We certainly. know that he had the opportunity of revenge
if he felt injured, but that he declined it. An offer was made
to him of a seat in the House of Commons free of expense.
Such a lucky chance — although lawyers, when Queen Mab
gallops over their fingers, dream of it still more than of fees
—he despised. He equally disliked the notion of making a
speech either as a patriot or as a courtier: he might have
remained silent in the House, but he foresaw that his health
would be proposed as one of the members for the county,
and that wherever he appeared he would be asked for a frank.
The notion suggested to him that parliament might speedily
make him a law officer of the Crown, filled him with con-
sternation.
For ever to avoid all such perils and solicitations, he now
took the decisive step of abandoning Westminster Hall alto-
gether, and settling in his native county as a provincial
counsel, —- which, as he had been disappointed in his wish of
being a country curate or vicar, offered him the prospect of
* These two farces, written by Garrick, were then acting with great applause.
t Mem. Geo. II., ii, 107.
283
CHAP.
X XIX.
A.D. 1752
—1754,
A.D. 1754,
He retires:
into the
country as
a provincial
counsel,
284
CHAP.
X XIX.
A.D. 1754,
1755.
He is ap-
pointed a
Puisne
Judge of
the King’s
Bench,
REIGN OF GEORGE II.
almost equal seclusion. His father had left him a small
patrimony, producing some hundreds a year; and he had
married Sarah, the daughter of Thomas Rivett, Esq., of
Derby, afterwards representative of that borough in parlia-
ment, with whom he had received a small portion yielding
a few hundreds more.* Accordingly, he sold his chambers,
took a house in Derby, and settled there with his family, never
more expecting to see persons of more worship than the
mayor of the town, or churchwardens who might come to
consult him respecting the settlement of a pauper.
Near a twelvemonth passed over him and found him con-
tented and happy in this retreat, — when, one fine spring
morning, he received official information that his Majesty had
been pleased to appoint him a Justice to hold Pleas before
his Majesty himself — or, in other words, a Puisne Judge of
the Court of King’s Bench. This had been preceded by a
rumour, which had reached Derby, that such an appointment
was in contemplation; but this rumour he had wholly dis-
regarded, as he not only never had solicited the appointment,
but he had never been consulted about it, and it had never
entered his imagination.
At first he declared that nothing should induce him again
to revisit the smoke and noise of London, — but being told
that, independently of all consideration of his increasing
family, it was his duty to submit himself to the King’s
pleasure and to serve the public according to the best of his
ability, he consented to allow the proposed honour to be
thrust upon him. This was the doing of Sir Dudley Ryder,
now Chief Justice of the King’s Bench, who, on the vacancy
occasioned by the death of Sir Martin Wright, was anxious
to have by his side his old Devin, in whom he so much con-
fided. Accordingly, in Hilary Term, 1755, Wilmot, having
been called Serjeant, and knighted, took his seat as one of the
Judges of the Court of King’s Bench.
* This marriage took place in April, 1743, wh
Bishop of Worcester, then binetylewet years of aie, writled Gn
future Chief Justice, says, — “I am much pleased that Mr. Eardl Wilmot I 3
chosen a wife whose character you approve: ’tis an argument ‘of his od
sense that he looks not after money in the first place; for, if God gives hi iif
and health, he cannot fail of making his fortune.” sald yee ee
LIFE OF CHIEF JUSTICE WILMOT.
The appointment, although grumbled at by some pert
practitioners who thought they were slighted by being passed
over, was soon justified by the “admirable manner in which ,
the new Judge performed his duties. As unostentatious as
ever, he still strove to shrink from observation; but, at times,
he, in spite of himself (as it were), delivered pithy and lumi-
nous judgments,—and often it was observed that, by a hint,
a whisper, or a look, he guided his brother judges— insomuch
that, like one of his predecessors, he was compared to the
helm which, itself unseen, silently keeps the vessel in her
right course.
Not insensible to the respect which he created and the
service he rendered, he was nearly reconciled to his new
mode of life, when he was thrown into deep distress by the
sudden death of his friend Lord Chief Justice Ryder while
a patent was passing for ennobling him.
A judicial crisis followed, which lasted some months; Mr.
Murray, the Attorney General, claiming the office of Chief
Justice, and the Duke of Newcastle trying, by solicitations
and bribes, to keep him in the House of Commons. During
this interregnum Sir Eardly Wilmot wished earnestly that he
were again a provincial counsel in his small house at Derby,
laying down the law to parish officers; for he was obliged
often to take the lead in the Court of King’s Bench, and,
gaining great credit, notwithstanding his desire to be quiet, a
rumour was spread, which reached him, that if Murray could
be prevailed upon to forego his claim he himself was to be
promoted to be Chief Justice. The two senior puisnies were
Sir Thomas Denison and Sir Michael Foster, and they, though
respectable men, were nearly disabled by age and infirmity.
To Wilmot’s unspeakable relief, Murray prevailed, and,
under the title of Lord Mansfield, took his place as Chief
Justice of the Court of King’s Bench. These two profound
lawyers and accomplished scholars, although of essentially
different temperament, always cordially co-operated in the
discharge of their judicial duties; and Wilmot, instead of
feeling any envy, was delighted that he was at liberty to act
a very subordinate part.
He had soon to encounter anew the perils of promotion.
285
CHAP.
XXIX,
A.D. 1755,
1756.
May 25.
1756.
Nov. 11.
286
CHAP.
XXIX.
He isa
Commis-
sioner of
the Great
Seal.
Nov. 19.
1756.
His first
refusal to
be Chan-
cellor,
June 30,
1757,
REIGN OF GEORGE II.
On the resignation of Lord Hardwicke, the great seal was
put into commission, and he was named as a commissioner
along with Lord Chief Justice Willes and Sidney Stafford
Smythe. He had never drawn a bill or answer in Chancery
in his life, — but he was intimately acquainted with the Civil
Law, and had scientifically studied every branch of English
jurisprudence. All other cares being laid aside, he now de-
voted himself to Equity; and the old draughtsmen were
obliged to acknowledge that, considering his defective train-
ing, he seemed to have by intuition a wonderfully correct
notion of it. The rest of the profession and the public gave
him unqualified praise, and a general expectation was enter-
tained that he would soon be appointed Lord Chancellor or
Lord Keeper, for he was not only much handier in dealing with
the cases which came before the commissioners than either of
his colleagues, but he was considered fitter for the office than
Henley the Attorney General, or any one else who could pre-
tend to it. Frightened out of his wits by the apprehension
of the much-coveted bauble being offered to him, he thus
wrote to his brother, Sir Robert Wilmot : —
“ The acting junior of the commission is a spectre I started at,
but the sustaining the office alone I must and will refuse at all
events. I will not give up the peace of my mind to any earthly
consideration whatever. Bread and water are nectar and ambrosia
when contrasted with the supremacy of a court of justice.”
For this turn there was not any serious ground for the
alarm, for the promotion was only slightly proposed to him,
and his refusal of it was easily acquiesced in. Political con-
venience prevailed over a strict consideration of the good of
the suitors, and, —Chief Justice Willes having ruined himself
by standing out for a peerage, —to please the Leicester
House party, the great seal was delivered to Sir Robert
Henley, afterwards created Earl of N orthington.
The ex-commissioner gladly returned to the King’s Bench,
resolved never again, either jointly with others or singly, to
touch the “ pestiferous piece of metal.” *
For ten years he went on as a Puisne Judge of the King’s
Bench, only longing for some situation in which he might be
a Description of the great seal by Lord Keeper Guilford,
LIFE OF CHIEF JUSTICE WILMOT.
less subject to public gaze. On one occasion, while presiding
at the Worcester Assizes, he had very nearly been released
from all dread of further promotion in this world. The fol-
lowing letter to his wife gives the particulars of his danger
and escape : —
“JT send this by express, on purpose to prevent your being
frightened, in consequence of a most terrible accident at this place.
Between two and three, as we were trying causes, a stack of
chimneys blew upon the top of that part of the hall where I was
sitting, and beat the roof down upon us; but, as I sat up close
to the wall, I have escaped without the least hurt. When I saw
it begin to yield and open, I despaired of my own life and the
lives of all within the compass of the roof. Mr. John Lawes is
killed, and the attorney in the cause which was trying is killed,
and I am afraid some others: there were many ,wounded and
bruised. It was the most frightful scene I ever beheld. I was
just beginning to sum up the evidence, in the cause which was
trying, to the jury, and intending. to go immediately after I had
finished. Most of the counsel were gone, and they who remained
in court are very little hurt, though they seemed to be in the place
of greatest danger. If I am thus miraculously preserved for any
good purpose, I rejoice at the event, and both you and the little
ones will have reason to join with me in returning God thanks for
this signal deliverance: but if I have escaped to lose either my
honour or my virtue, I shall think, and you ought all to concur
with me in thinking, that the escape is my greatest misfortune.
“I desire you will communicate this to my friends, lest the
news of such a tragedy, which fame always magnifies, should affect
them with fears for me.
“ Two of the jurymen who were trying the cause are killed,
and they are carrying dead and wounded bodies out of the ruins
still.”
In another letter he says, “It was an image of the last day,
when there shall be no distinction of persons, for my robes did not
make way for me. I believe an earthquake arose in the minds of
most people, and there was an apprehension of the fall of the
whole hall.”
His safety is supposed to have been entirely owing to his
presence of mind, which induced him to remain composedly
in his place till the confusion was over —a circumstance
which, with his usual modesty, he suppresses.
287
CHAP,
X XIX,
A.D. 1757
—1767.
His escape
at the Wor-
cester
Assizes,
288
CHAP.
XXIX.
Offer made
to him to
become
Chief Jus-
tice of the
Common
Pleas.
A.D. 1766.
Aug. 2.
Letter
from his
brother
to per-
suade him
to accept.
REIGN OF GEORGE II.
He twice attempted, ineffectually, to exchange his present
office for that of Chief Justice of Chester, which was of less
emolument, but would have withdrawn him entirely from
London; so careless was he of present applause, or of the fame
to be acquired as a great magistrate.
Afterwards, to the surprise of all who knew him, he did
accept a distinguished “supremacy ” in Westminster Hall;
but he truly said that “this was under duress.” On the
formation of the first Rockingham administration, when Lord
Camden became Chancellor, he resolved to have Sir Eardly
Wilmot to succeed him as Chief Justice of the Common
Pleas. A rumour of this promotion haying reached the
person so selected as the worthiest, he wrote to his brother,
Sir Robert — “ Is it not possible for you to divert a measure
which will be so injurious to my peace if accepted, and so
much censured if refused?” But he received no comfort
from the following answer: —
“ The curtain is now drawn up; the actors are coming on the
stage. JI understand you have a part which, though not your own
choice, has been assigned to you in so distinguished, so honourable
a manner that you certainly ought, and gratefully, to accept it.
Tis a duty which you owe to the King, to your friends, to your
family, to yourself; and the duty required is neither hard nor
unprofitable. Lord Camden claims the sole merit of your ad-
vancement; Lord Shelburne’s friendship for you may have had
its weight; Lord Northington has likewise, probably, promoted
the measure. Their motive is, your eminent abilities in your pro-
fession, your extensive knowledge, your acute and deep penetration,
your sound judgment, your principles in favour of liberty, your
unspotted character, and your being in every respect the most fit
and proper person for that station. Iam clearly of opinion that
your remove to the Common Pleas will be a fortunate and happy
event. You will, at all events, be a permanent pillar, though the
new ministry, as it probably will, topple down. Every mortal
says how honourable it is for’ you to have no competitor. The
whole town seems interested and pleased with the event, and the
hopes of mankind would be disappointed if you rejected the public
voice. You shall have free scope to write, or talk, or scold as
much as you please tome. Sit but serene in your Chief Seat, and
out of it you shall rage like Boreas.”
LIFE OF CHIEF JUSTICE WILMOT.
But when Lord Camden’s letter reached Sir Eardly,
announcing that the King had graciously appointed him
Chief Justice of the Common Pleas, his horror of promotion
returned in full force. He was then on the Western Circuit ;
and he showed to Mr. Justice Yates, his brother judge, a
letter he had written to refuse, with all respect and gratitude,
the honour intended for him. This sensible and warm-
hearted man, having in vain used many arguments to combat
his resolution, at last made a little impression by urging that,
as the Common Pleas had no criminal jurisdiction, and no
state trials, a Chief there might be quieter and less observed
than a Puisne in the King’s Bench, — where Wilkes’s out-
lawry was agitated, and “libel” was the staple commodity.
He then, with his own hand, wrote a letter of acceptance,
addressed to the Chancellor in Wilmot’s name, and by gentle
force induced him to sign it.
At the end of the circuit the new Chief Justice was sworn
in as Chief Justice of the Common Pleas, and received the
following congratulatory epistle from the friend whose duress
had compelled him to suffer this elevation : —
“ Clifton, Aug. 30. 1766.
* My dear Lord Chief Justice, — I have now the satisfaction of
addressing my friend by the title I so ardently wished him; and,
blessed as you are with the liveliest feelings of a friendly heart
(one of the greatest blessings that man can enjoy), don’t you envy
me the joy I feel from this event’ I should, indeed, have been
heartily chagrined if you had missed it; and, had the fault been
your own, should have thought you exceedingly blamable. My
casuistry would then have been staggered indeed, and would have
found it a difficult point to excuse you. But now it is quite at
peace and entirely satistied. You do me great honour in rating it
so high, and I am sure you speak from the heart. It is the pri-
vilege of friendship to commend, without the least suspicion of
compliment; and I shall ever receive any approbation of yours
with superior satisfaction. But no man breathing can have a
surer guide or a higher sanction for his conduct than my friend’s
own excellent heart. Of this the very scruple you raised would
alone have convinced me if I had no other proofs. I have not the
least doubt that you will find your new seat as easy as you can
wish, and all your coadjutors perfectly satisfied. There is but
VOL. II. U
289
CHAP.
X XIX.
A.D. 1766.
How he
became
a Chief
Justice by
duress.
Letter of
congratu-
lation from
Mr. Jus- *
tice Yates. -
290
CHAP.
XXIX.
A.D. 1766,
From
Judge
Blackstone.
REIGN OF GEORGE III.
one of them that could entertain any thoughts of the same place
for himself; and as he knows that in the present arrangement he
had not the least chance of it, I dare say he will be pleased to see
it so filled. And as to the rest of the profession, I can affirm with
confidence (for you know I have but lately left the bar, where I
had a general acquaintance with the sentiments of the Hall), that
no man’s promotion would have given so universal satisfaction as
yours. I repeat this to you because it certainly must give you
pleasure. Success is never more pleasing than when it is gained
with honour and attended with a general good will. It will rejoice
me highly to shake your hand before I go northwards; and if I
knew what day you would be at Bath, I would give you the meet-
ing there. I long to hear a particular detail of everything that
has passed.
*“ Your most affectionate friend,
“J. YATES.”
Nauseated by the formal and fulsome letters addressed to
him on this occasion, he was much pleased with the following
from the celebrated ‘“‘ Commentator on the Laws of England,”
with whom he had always been on terms of familiarity and
friendship, and who had himself fair pretensions to the pro-
motion : —
“ My Lord, — Among the many congratulations you receive
upon a promotion which everybody is pleased with, even in these
times of division, there are none more sincere than those which
come from your Lordship’s acquaintance, who have an opportunity
of contemplating your private as well as public character. As
your Lordship has been pleased to honour me with that advantage
in a degree that has laid infinite obligations upon me, you will be- _
lieve that it is with real pleasure I felicitate both your Lordship
and Westminster Hall on an event that does honour to both.
“Tam, &c.
“ W. BLACKSTONE.”
The prospect held out to him of a quiet life in the Common
Pleas was realised, and he continued to repose upon the
“cushion” there without any thing to disturb him till the
terrible ministerial crisis in the beginning of the year 1770.
Lord Chatham having then unexpectedly reappeared upon
the stage, Lord Camden’s dismissal was only deferred till
some lawyer of decent character could be prevailed upon to
consent to be his successor.
LIFE OF CHIEF JUSTICE WILMOT.
The first attempt was made upon Wilmot; and, as he
happened to be in attendance in the House of Lords, the
Duke of Grafton, little dreading a rebuff, came up ,to him,
and, pointing to the great seal, said, “There itis, Sir Eardly ;
you shall have it in your possession to-morrow.” Sir Eardly
shook his head and begged to be excused. The consequence
was, the pressure upon Charles Yorke, to which that un-
happy man fatally yielded. Immediately after his sudden
death, the offer was'repeated to Wilmot, with any peerage,
pension, and reversion he might be pleased to name; but he
was immovable, and the great seal was given in commission
to Sir Sidney Stafford Smythe, Sir Richard Aston, and the
Honourable Henry Bathurst, afterwards Lord Apsley.
In the beginning of the following year, Lord North having
become Prime Minister, before committing the clavis regni to
the incompetent hands of Bathurst, made another vigorous
effort upon Wilmot, but found him still preferring quiet to
the first place in his profession, to great wealth, to hereditary
honours for his family, and to the opportunity of making an
historical name for himself. Bathurst was, in consequence,
appointed ; and the sarcasm was elicited, that ‘‘ what the three
Lords Commissioners had been unable to do, was now to be
done by the most incompetent of the three.”
To avoid all further solicitation, Wilmot resolved to resign
his office, making infirm health the ground for his retirement,
He had fretted himself into a temporary indisposition, during
which he had got other judges to sit for him. Thus he ad-
dressed Lord Hardwicke : —
“ My health necessitates my retreat from public business ; and
all that I ask of his Majesty is, that he will be graciously pleased
to accept my resignation, for I have observed that it may be com-
municated to the King in the most humble manner from me that I
do not wish or mean to be an incumbrance to his Majesty by any
provision out of his civil list. I would much rather resign with-
out any remuneration at all. I hate and detest pensions, and
living upon the public like an alms-man.”
By the special intervention of the King himself, a retired
allowance was settled upon him; and in January, 1776, his
resignation was accepted.
v2
291
CHAR,
X XIX.
He again
refuses the
great seal,
Jan. 21.
1770.
He resigns
Justiceship.
Dec. 29.
292
CHAP.
XXIX.
——e
A.D. 1770
—1] 790.
Wilmot in
retirement.
His death,
REIGN OF GEORGE III.
He survived above twenty years. That he might do some-
thing for the public money which he received, he long
continued to hear appeals in the Privy Council; but the
infirmities of age pressing upon him, he afterwards entirely
devoted himself to the duties and enjoyments of private life.
His principal occupation in retirement was superintending
the education of his younger children. Thus he. wrote toa
boy of fifteen: —
“ Second my endeavours to cultivate your mind and to impreg-
nate it with the principles of honour and truth which constitute a
gentleman. These I received in the utmost purity from my own
father, and will transmit to you and to your brothers unsullied,
However. fortune may exalt or depress you, the consciousness of
having always acted upon these principles will give you the only
perfect happiness that is to be found in this world. But, above all
things, remember your duty to God, for without his blessing my
love and affection for you will be as ineffectual to promote your
happiness here as hereafter; and whether my heart be full of joy
or of grief, it will always beat uniformly with unremitting wishes
that all my children may be more distinguished for their goodness
than their greatness.”
He lived to see the sixth age shift
** Into the lean and slipper’d pantaloon,”
of which he gives the following description, almost as melan-
choly as that of our immortal dramatist : — “I thought you
would be glad to see, under my own hand, that J east both in
body and mind; but I can neither go nor stand, nor eat, nor
sleep.” His family and his friends had even to witness the
sad spectacle of his passing through the
.- “ Last scene of all,
That ends this strange eventful history,
. second childishness and mere oblivion.”
From this he was released on the 5th of February, 1792,
when.he had reached his eighty-second year. His remains
were interred in the parish church of Berkswell in Warwick-
shire, where a monument has been erected to his memory,
which, according to his own directions, only gives the dates
of his birth, of his death, and of the memorable events of his
life.
The impartial biographer must say, that although Sir
LIFE OF CHIEF JUSTICE WILMOT.
Eardly Wilmot never shone as an orator, a statesman, or an
author, he is to be placed in a very high rank in the order of
Judges. Beyond the common qualities of patience and purity,
he had an extraordinary store of juridical knowledge, he saw
with celerity the questions of law upon which the decision of
each case depended, and he disposed of these not only with
perfect accuracy but with wonderful copiousness of illustration.
He was not fortunate in his reporters, Burrow and Wilson ; —
but his son has published, from his own MSS., several of his
judgments, which are very honourable to his memory. I can
only give a few short specimens of his manner.
An action upon the case was brought for maliciously
writing and publishing a libel upon the plaintiff in the fol-
lowing words, imputing to him that he was infected with a
loathsome disease ; —
“ Old Villiers, so strong of brimstone you smell,
As if not long since you had got out of hell.”
After a verdict for the plaintiff, a motion was made in arrest
of judgment by Serjeant Burland, who argued that the words
were not actionable; that the itch is a distemper to which
every family is liable ; that to have it is no crime; nor does it
bring any disgrace upon a man, for it may be innocently
caught or taken by infection ;-— that the small pox and a
putrid fever are worse disorders, yet no action would lie for
saying that a person was ill of either of them.
Wilmot, C.J.: “TI think this is a libel for which an action
well lies. If any one maliciously publishes anything in writing
concerning another which renders him ridiculous or tends to
hinder mankind from associating with him, he is injured, and
may have a recompence in damages. I see no difference between
this case and saying that a man has the leprosy or the plague, for
which it is admitted that an action lies. A writ may issue to the
sheriff to remove him without delay ad locum solitarium ad habi-
tandum ibidem, prout moris est, ne per communem conversationem
suam hominibus dampnum vel periculum eveniet quovismodo. No-
body will eat, drink, or have any intercourse with a person who
has the itch and stinks of brimstone. Therefore I think this libel
actionable, and that judgment must be for the plaintiff.” *
* 2 Wilson, 463.; Villiers v. Mousley.
io te
293
CHAP.
XXIX.
His judi-
cial charac-
ter.
Actienable
to state in
writing
that a per-
son has the
itch.
294
CHAP.
XXI1X.
Meaning, in
a policy, of
“ usurped
power,”
REIGN OF GEORGE III.
In an action on a policy of insurance on a malthouse
burnt down by rioters, who, trying to reduce the price of
provisions, for some time had possession of the town in which
the insured building stood,—a question arose whether the
insurance-oftice was exempted from liability by an exception
in the policy of all fires which might happen by “ any in-
vasion, foreign enemy, or any military or usurped power
whatsoever.”
Wilmot, C. J.: “I am of opinion that the firing of the malt-
house by the mob is not a fire by any usurped power within the
meaning of the exception. Policies of insurance, like other deeds
and instruments which evidence the agreements of men with one
another, must be construed according to the true intent and mean-
ing of the parties who make them. To find out this intention is
often very difficult ; for when agreements are committed to writing,
all extrinsic evidence of intention is shut out ; and words being
the only marks of that intention, it happens that sometimes from
the imperfection and poverty of language, and sometimes from the
barbarous and inaccurate application of it, much doubt arises with
respect to the ideas which the parties denote by the words they
employ to express them. ‘ Usurped power’ are two equivocal
words which perplex this question, and, under such a difficulty,
judges have no other clue to lead them out of the maze but to
consider the import of the accompanying words, to take into con-
sideration the general scope and design as well as the particular
sentence in which the words occur. Above all things the popular .
and ordinary use of the words must be attended to. Usage is the
master key which unlocks the meaning of words : —
**¢ Quem penes arbitrium est et jus et norma loquendi.’”
Having explained very copiously the nature of the fires by in-
vasion, foreign enemies, and military operations, for which the
insurers were not to be answerable, he thus proceeds : — “ In my
opinion there is a prodigious difference between mobs and armies.
The laws executed with spirit will always suppress a mob: the
magistrates did with ease in this case. The undaunted courage of
an individual, or the personal appearance of a man of credit and
reputation, disperses or assuages these fevers of the people. Our
own experience, as well as history, shows it according to that
beautiful simile of Virgil : —
LIFE OF CHIEF JUSTICE WILMOT.
*«* Ac, veluti magno in populo quum sepe coorta est
Seditio, seevitque animis ignobile vulgus ;
Jamque faces et saxa volant; furor arma ministrat :
Tun, pietate gravem et meritis si forte virum quem
Conspexére, silent, arrectisque auribus adstant :
Ille regit dictis animos, et pectora mulcet.’
Suppose a mob fire a house before they disperse, all hands are
instantly employed to extinguish it; but neither the courage nor
character of individuals can silence the thunder of cannon or
prevent the bursting of bombs. To indemnify against the effect of
rebellion and civil war may be too perilous an undertaking; but
there seems no reason why an indemnity should not be promised
against fires raised by a mob. These, though they may be the ruin
of individuals, are not likely to occasion a loss beyond the means
of a wealthy insurance company.”
One Puisne was of a contrary opinion —but the two others
agreeing with the Chief Justice, there was judgment for the
plaintiff, and the rule here laid down has been acted upon
ever since.*
Sitting in the Exchequer Chamber, the question came
before him whether a lady could maintain an action against a
gentleman upon a deed by which he covenanted that he would
not marry any other but her, under a penalty of 10002.
Wilmot, C. J. : “ Upon the first view of the question the maxim
cited at the bar, volenti non fit injuria, seems to favour such a
covenant ; every man has a right disponere de suo jure; and as
the law does not oblige anybody to marry, and leaves a free
agency in that respect to every member of the community, it is not
an agreement to omit what the law commands, but an agreement
to omit what the law leaves to every man’s choice to omit if he
pleases. Besides obligations which are the subject of an action,
every member of civil society is under a variety of moral obli-
gations which municipal laws do not enforce ; but which the law
of nature, the law of God, calls upon him to perform. Gratitude,
charity, and all parental and filial duties beyond mere main-
tenance ; friendship, beneficence in all its various branches, and
many more which might be named, are duties of perpetual, though
imperfect, obligation; and I cannot name a greater than matri-
mony, being one of the first commands given by God to man-
kind after the creation, repeated again after the deluge, and ever
since echoed by the voice of nature to all mankind. For the
precept of multiplication has been always expounded by the civi-
* Drinkwater y. Royal Exchange, Wilm. Op. 282.
UL
CHAP.
XXIX.
Qu. whe-
ther an ac-
tion lies by
a lady
against a
gentleman
on a cove-
nant to
marry
no one but
her.
296
CHAP,
XXIiX.,
Power of
the Solici-
tor General
when the
office of
Attorney
General is
vacant,
REIGN OF GEORGE III.
lised part of the world to mean multiplication by the medium of
matrimony ; and there cannot be a duty of greater importance to
society, because it not only strengthens, preserves, and perpetuates
it, but the peace, order, and decency of society depend upon pro-
tecting and encouraging it. The point therefore to be considered
is, whether a covenant to omit such a duty ought to be enforced én
foro civili? The writers upon the law of nature consider con-
tracts to omit such duties as void; nay, they consider an oath to
perform them as not obligatory.* Will the law of this country,
the perfection of human reason, enforce such a contract? Isa
covenant to omit moral duties, which, for the exercise of our
virtues, are left to our free choice, the proper subject-matter of an
action? To entertain an action for the breach of such contracts,
would be setting the laws of God and man at variance with one
another. The celibacy of ecclesiastics, whether secular or religious,
was a weed of the common law, erroneously tolerated by the com-
mon law and totally extirpated at the Reformation. The case of
the fellows of colleges depends upon the will of the founder : there
is a succession in colleges: it is only a temporary restraint on a
few in seminaries of learning, which are not proper places for the
reception of wives and children.” After examining a vast number,
he concludes by announcing the unanimous opinion of the Court
that the deed was void.
As the organ of the Common Law Judges, Wilmot de-
clared their opinion in the House of Lords in the famous
case of John Wilkes, on the question whether, the office of
Attorney General being vacant, the Solicitor General may
file an ex officio information for a libel ?
“ By our constitution,” said he, “the King is intrusted
with the prosecution of all crimes which disturb the peace and
order of society. He sustains the person of the whole commu-
nity for the resenting and punishing of all offences which affect
the community ; and for that reason all proceedings ad vindictam
et penam are called in the law ‘the pleas or suits of the Crown.’
In capital crimes these suits of the Crown must be founded upon
the accusation of a grand jury; but in all inferior crimes an in-
formation by the King is equivalent to the accusation of a grand
* Grotius, lib. ii, cap. 13. s. 67.
+ Low v. Peers, Wilm. Op. 364. Tamen quere, for the covenant was sub-
stantially a mere promise to marry the plaintiff or pay her a sum of money,
and therefore not in restraint of marriage ; and the instrument being under seal,
there was no necessity for a reciprocal obligation, or any other consideration,
being expressed on the face of it.
LIFE OF CHIEF JUSTICE WILMOT.
jury. He employs an officer to file the information in his name;
but the accusation is the act of the King, the great constitutional
guardian of the public peace. The arguing that the Attorney
General only, and no other officer, was intrusted by the consti-
tution to sue for the King either civilly or criminally, is a funda-
mental mistake. The Attorney General is intrusted by the King
and not by the constitution ; it is the King who is intrusted by
the constitution.” He then gives an antiquarian history of the
office of Attorney General, showing how by the will of the so-
vereign it had gradually acquired its present dignity, and then
proves that the Solicitor General has co-ordinate authority : —
“The Solicitor General is the Secundarius Attornatus ; and as
the Courts take notice judicially of the Attorney General when
there is one, they take notice of the Solicitor General as standing
in his place when there is none. He is a known and sworn officer
of the Crown as much as the Attorney; and, in the vacancy of
that office, does every act and executes every branch of it. When
the Attorney dies or is removed, must the great criminal juris-
diction of this kingdom, in his department, be suspended till
another is appointed ? Where is it to be found that in this interval
the noblest branch of the King’s regal office becomes inactive, and
the subject’s right to protection is in abeyance?” He then cites
many precedents in support of this opinion, — upon which the
judgment against Wilkes was affirmed.*
I shall, further, only give a short extract from a judgment
which he had written, but which was not delivered, in a case
in which there was'a summary application to the Court of
King’s Bench for an attachment against a bookseller who
had published a pamphlet reflecting severely on Lord Mans-
field and the other Judges of the court for their conduct in
libel prosecutions instituted by the Crown. The doctrine he
lays down, that, by the law of the land, courts may punish
in a summary manner for contempt, instead of waiting for an
indictment to be tried by a jury, is highly important, as it
applies equally to the privilege of the two Houses of Parlia-
ment to follow a similar course : —
“The power which the, courts in Westminster Hall have of
vindicating their own authority is coeval with their first foundation
and institution ; it is a necessary incident to every court of justice,
whether of record or not, to fine and imprison for a contempt acted
* Wilkes y. The King, Wilm. Op. 322.
297
CHAP.
XXIX.
Power of
the supe-
rior courts
to punish
contempts,
298
CHAP,
XXIX.
Satire on
Chief Jus-
tice Wilmot
by Horace
Walpole.
Character
of Chief
Justice
Wilmot
by his son.
REIGN OF GEORGE III.
in the face of the court; and the issuing of attachments by the
supreme courts of justice in Westminster Hall for contempts out
of court stands on the same immemorial usage which supports the
whole fabric of the common law; it is as much the lex terre, and
within the exception of Magna Charta, as the issuing of any other
legal process whatsoever. I have examined very carefully to see
if I could find out any vestiges of its introduction, but can find
none. It is as ancient as any other part of the common law; there
is no priority or posteriority to be found about it; it cannot,
therefore, be said to invade the common law; it acts in alliance
and friendly conjunction with every other provision which the
wisdom of our ancestors has established for the general good of
society. ‘Truth compels me to say that the mode of proceeding by
attachment stands upon the very same foundation as trial by jury;
it is a constitutional remedy in particular cases, and the judges in
those cases are as much bound to give an activity to this part of
the law as to any other.” *
Sir Eardly Wilmot seems to have been venerated in his
own time. He is spoken of with harshness only by Horace
Walpole, who, prejudiced against him (as is supposed) by
party malignity, after observing that “he was much attached
to Legge,” adds, “ He loved hunting and wine, and not his
profession.” But, as Wilmot was certainly dull, though of a
solid understanding, the noble and fashionable memoir-writer
could never have been in his company, and could have known
very little about him, for he describes him as “a man of
great vivacity of parts.” He rarely indulged in wine, and
* case-hunting” was the only sport in which he took delight.t
The following character of him is drawn by his son, which,
though coloured by pious partiality, presents a striking
likeness : —
‘“‘ His person was of the middle size; his countenance of a com-
manding and dignified aspect; his eye particularly lively and
animated, tempered with great sweetness and benignity. His
knowledge was extensive and profound, and, perhaps, nothing but
* Rex vy. Almond, Wilm. Op. 243. In consequence of the resignation of Sir
Fletcher Norton, who, as Attorney General§ had made the motion, it was
dropped, after cause shown, while the Court was considering of its judgment ;
and although there can be no doubt as to the power to proceed by attachment
in such a case,—if a prosecution for a libel on judges be necessary, the preferable
course is to proceed by information or indictment, so as to avoid placing them in
the invidious situation of deciding where they may be supposed to be parties.
+ Mem, Geo. II., ii. 107.
LIFE OF CHIEF JUSTICE WILMOT.
his natural modesty prevented him from equalling the greatest
of his predecessors. It was this invincible modesty which con-
tinually acted as a fetter upon his abilities and learning, and pre-
vented their full exertion in the service of the public. Whenever
any occasion arose that made it necessary for him to come forward
(as was sometimes the case in the House of Lords, in the Court of
Chancery, and in the Common Pleas), it was always with reluctance;
to perform a duty, not to court applause, which had no charms for
his pure and enlightened mind. But although he was never fond
of the practice of the law as a profession, he often declared his
partiality for the study of it as a science: as an instance of this,
after he had resigned his office he always bought and read the
latest Reports, and sometimes borrowed MS. notes from young
barristers. He was not only accomplished in the laws of his own
country, but was also well versed in the civil law, which he studied
when at Trinity Hall, Cambridge, and frequently affirmed that he
had derived great advantage from it in the course of his profession.
He considered an acquaintance with the principles of the civil law
as the best introduction to the knowledge of law in general, as
well as a leading feature in the laws of most nations of Europe.
His knowledge, however, was by no means confined to his pro-
fession. He was a general scholar, but particularly conversant
with those branches which had a near connection with his legal
pursuits, such as history and antiquities. He was one of the
original fellows of the Society of Antiquaries, when first incor-
porated in 1750, and frequently attended their meetings, both
before and after his retirement: most of his leisure hours were
spent in the above researches. But of all the parts of Sir Eardly’s
character, none was more conspicuous than the manner in which
he conducted himself on the bench in that most delicate and im-
portant office of hearing causes, either of a criminal or civil nature.
He was not only practically skilled in his profession, but his pene-
tration was quick and not to be eluded; his attention constant and
unabated ; his elocution clear and harmonious ; but, above all, his
temper, moderation, patience, and impartiality were so distin-
guished, that the parties, solicitors, counsel, and audience went
away informed and satisfied, if not contented, —‘ etiam contra quos
statuit, equos placatosque dimisit.’ This was the case in questions
of private property ; but when any points of a public nature arose,
there his superior abilities and public virtue were eminently cha-
racterised: equally free from courting ministerial favours or popu-
lar applause, he held the scale perfectly even between the Crown
299
CHAP.
XXIX,
300
CHAP.
XXIX.
Censure on
his want of
ambition.
REIGN OF GEORGE III.
and the people, and thus became equally a favourite with both.
This was conspicuous on many occasions, but particularly in the
important cause, related before, between Mr. Wilkes and Lord Hali-
fax, in 1769. In private life he likewise excelled in all those qua-
lities that render a man respected and beloved. May the remem-
brance and contemplation of his virtues inspire his descendants
with a desire to imitate them! This he would have thought the
most grateful reward, this the noblest monument! Such unaffected
piety, such unblemished integrity, such cheerfulness of manners
and sprightliness of wit, such disinterestedness of conduct and
perfect freedom from party spirit, could not and did not fail of
making him beloved, as well as admired, by all who knew him.
Genuine and uniform humility was one of his most characteristic
virtues. With superior talents from nature, improved by unre-
mitting industry, and extensive learning, both in and out of his
profession, he possessed such native humbleness of mind and sim-
plicity of manners that no rank nor station ever made him think
highly of himself or meanly of others. In short, when we con-
template his various excellencies, we find ourselves at a loss
whether most to admire his deep and extensive learning and
penetration as a lawyer; his industry, probity, firmness, wisdom,
and patience as a judge; his taste and elegant accomplishments as
a scholar; his urbanity and refined sentiments as a gentleman ;
or his piety and humility as a Christian.”
We must place him far above those who have been tempted,
by inordinate ambition, to mean or wicked actions; yet we
cannot consider his public character as by any means ap-
proaching to perfection, for he was much more solicitous for
his own ease than for the public good. By becoming a
representative of the people, he might have materially assisted
the House of Commons in its legislative deliberations. By
accepting the great seal, he would have rescued the country
from the incompetence of Bathurst, who, hardly qualified to
be a chairman of Quarter Sessions, presided seven years on
the woolsack. Filling the marble chair, what benefits might
he not have conferred upon the community by his decisions,
and by the amendment of our laws! He was deterred, not
by any misgivings as to his own qualifications, or by any
dislike to the political principles of those with whom he was
to be associated in the Cabinet, but by morbid hatred of
conspicuous position, and by selfish love of tranquillity. He
LIFE OF CHIEF JUSTICE WILMOT.
did not shun political strife that he might make discoveries
in science or contribute to the literary fame of his country.
The tendency of the tastes by which he was animated is to
make life not only inglorious, but useless.*
I now come to a man who, animated by a noble ambition
for power and fame, willingly acted a conspicuous part before
the public for above half a century ; who was a great bene-
factor, as well as ornament, to his own times; and whose
services to a distant posterity will be rewarded by his name
being held in honoured remembrance.
* The facts of this little memoir are almost all taken from a Life of Sir John
Eardly Wilmot, published by his son in the year 1811. A few are added
from the traditions of Westminster Hall.
301
CHAP.
X XIX.
CHAP.
XXX.
Qu. how
far Lord
Mansfield’s
career a fit
subject for
biography ?
LIFE OF LORD MANSFIELD.
CHAPTER XXX.
LIFE OF LORD MANSFIELD FROM HIS BIRTH TILL HE WAS CALLED
TO THE BAR.
AN indifferent author, who wished to write the Life of Lord
Mansfield, having applied to him to be furnished with materials,
“so that the brilliancy of such a splendid luminary of the law
might never fade,” received the following answer :—‘* My
success in life is not very remarkable: my father was a man
of rank and fashion; early in life I was introduced into the
best company, and my circumstances enabled me to support
the character of a man of fortune. ‘To these advantages I
chiefly owe my success ; and therefore my life cannot be very
interesting; but, if you wish to employ your abilities in
writing the life of a truly great and wonderful man in our
profession, take the life of Lord Hardwicke for your subject ;
he was indeed a wonderful character; he became Chief
Justice of England, and Chancellor, from his own abilities
and virtues, for he was the son of a peasant.”
Unless this may be excused as a mode of getting rid of an
impertinent application from a coxcomb, it must be considered
an ebullition of aristocratic insolence. The “ peasant” was
an eminent attorney in England; and, by birth, As son had
an infinitely better chance of succeeding at the English bar,
and reaching the highest dignities in Westminster Hall, than
the son of a poor Scotch peer, of descent however illustrious.
When the babe, afterwards Earl of Mansfield and Chief
Justice of England, first saw the light at Scone, the chances
were many milliards to one that he would never fill that
office; and the probability was, that, if he was not cut off by
some of the diseases of childhood, he would obscurely waste
his days, like a true younger brother—with a contempt of
trade and of books,—angling for salmon in the river Tay, and
LIFE OF LORD MANSFIELD.
coursing the deer over the braes of Athol; or that he would
languish as a subaltern in the army, without hope of promo-
tion, in the service of King George ; or (which was still more
probable) that he would wander over Europe in exile and in
indigence, as an adherent of King James, enjoying no prospect
of celebrity except that which might accrue to him from being
beheaded on Tower Hill.
His circumstances did not enable him “to support the cha-
racter of a man of fortune,” and he did not owe his success
to the advantages which he then enumerated. His life,
therefore, is very interesting,—and it must be curious to trace
the steps by which, after riding on a wretched pony from
Perth to London, “he drank champagne with the wits;”
he became the most distinguished advocate in England;
he prosecuted Scotch peers, his cousins, for treason against
King George ; he was the rival of the elder Pitt, the greatest
parliamentary orator England has ever produced; he was
raised to be the highest Criminal Judge of the realm; he
repeatedly refused the still more splendid office of Lord
Chancellor; he, without political office, directed the measures
of successive Cabinets; and (what was far truer glory) he
framed the commercial code of his country.
There are other considerations which particularly excite
me as I enter upon the life of Lorp MAnsrirLtp. He was
the first Scotchman who ever gained distinction in the pro-
fession of the law in England; and, though his education
was English, the characteristics of his race may have con-
tributed to his success.* Being, like him, an English
lawyer, I am proud of him when I reflect that he affords a
rare example among us of a genuine taste for elegant lite-
rature, combined with a profound knowledge of jurisprudence.
But, most of all, I look upon him with interest as a con-
* Different trades and professions seem to suit the inhabitants of different
countries. In London, all the milkmen are Welsh; all the sugar-bakers are
German, and a great many of the tailors. The vast majority of the bakers
are Scotch, but there is not a Scotch butcher to befound. While no tolerable
theatrical performer ever came from Scotland, we have had considerable success
in medicine and in law. To the literature of the country I trust it will be
allowed that we have brought at least our fair contribution, when it is con-
sidered that there are less than 3,000,000 of inhabitants in Scotland, while
there are 8,000,000 in Ireland, and 14,000,000 in England.
303
CHAP.
XXX.
Sources of
interest to
the author
of this me-
moir in
composing
it.
304
CHAP:
XXX.
Lord
Manstield’s
illustrious
descent.
Founder of
the Stor-
mont Mur-
rays.
LIFE OF LORD MANSFIELD.
necting link between the reign of Queen Anne and our own
times. Having been the familiar friend of Pope, he was
the familiar friend of my familiar friends.* Occupying the
stage of political life almost for a century, he brings together
systems as well as men that seem many generations asunder.
After the expulsion of the Stuarts he saw the present dynasty
placed upon the throne of Britain; and he lived to hear the
news of the murder of Louis X VI., and to foresee and fore-
tell all the evils which Europe has since suffered, and is
suffering, from a violation of the principles of order and of
true liberty.
In following the career of such a man, while we meet
with striking vicissitudes affecting him individually, we must
catch interesting glimpses of history and of manners. But I
have too much raised expectation, and I must now expose
myself to the peril of disappointing it.
Lord Mansfield was entitled to the consideration which
fairly belongs to distinguished ancestry. Setting aside the
fabulous origin of his family from a great Moravian chief,
supposed in a very remote age to have conquered a province
of Scotland now called Morayshire, we know, from authentic
records, that Friskinus de Moravia was a powerful noble in
the north of Scotland in the beginning of the twelfth
century; and that Gulelmus de Moravia, his lineal de-
scendant, by a charter of King Alexander III., dated 1284,
was confirmed in the possession of the estates of Tullebar-
dine, in the county of Perth, which he had obtained by
marriage with the heiress of Malise, Seneschal of Strathearn.
From him sprang a long line of Barons of Tullebardine,
represented by the present Duke of Athol, chieftain of the
Murrays.
A younger son of Sir William Murray, the eighth Baron
of Tullebardine, was married to the Lady Janet Graham,
daughter of the Earl of Montrose, and had several sons, who,
though highly connected, were very poorly provided for,
* T may particularly instance the late Mr. Justice Allan Park and Lord
Mansfield’s kinsman the present Lord Murray, a judge of the Court of Session.
My greatest boast in this line is, that I have conversed with Sir Isaac Herd, the
celebrated Henan, and he had conversed with a person who was present at the
execution of Charles I.
~
LIFE OF LORD MANSFIELD.
and seemed to have no resource for a subsistence but to join
in an occasional raid on the lowlands, or to become tacksmen
to the chief of the clan of a patch of land in a remote high-
land glen. This was probably the fate of all of them except
one, for no mention is afterwards made of the others; and
their descendants may be shoemakers at Perth, or may be
sweeping the crossings of the streets in London, unconscious
of any claim to noble ancestry. But David, the second son,
became the founder of the Stormont branch of the family,
and is the ancestor of the Earls of Mansfield.
Being remarkably well formed and athletic, he was enlisted,
when very young, as a private in a small body of halberdiers,
all of gentle blood, constituting the body-guard of James VI.,
who nominally had filled the Scottish throne from his in-
fancy, while his mother, Mary, the rightful sovereign, was a
captive in a foreign land, and successive factions governed in
his name. ‘The identical passion for handsome favourites,
which afterwards raised the Earl of Somerset and the Duke
of Buckingham to such unfortunate distinction in England,
showed itself in the Scottish monarch in early youth. Caught
by the good looks, pleasing manners, and skill in all sorts of
games which he discovered in David Murray, he made him
his companion, knighted him, and promoted him to be Master
of the Horse, Comptroller of the Household, and Captain of
the Body-guard.
It so happened that the favourite was in attendance on his
royal patron in the castle of the Earl of Gowrie, at Perth,
when that conspirator (for such, after long controversy, I
fear he is now proved to have been) attempted to make the
King a prisoner, with the view of getting all the power of
the state into his own hands.* Sir David Murray displayed
great presence of mind upon the occasion, and gave im-
portant assistance in rescuing the King and securing the
traitors. He soon afterwards gallantly quelled an insurrec-
* I wish I could have defended him from this charge, as he was the heir and
representative of the Lords Hallyburton, from whom I am descended; but, in
spite of the many volumes which have been written on the Gowrie Conspiracy
to prove that James got up a sham plot to wreak his vengeance on a family he
had devoted to destruction, I think there ean no longer be a doubt that the plot
was real, and that he had very nearly been the victim of it.
VOL. II. x
305
CHAP.
XXX,
David, 1st
Viscount
Stormont.
a.v. 1600,
306
CHAP.
XXX.
A.D, 1600.
5th Vis-
count
Stormont.
«
LIFE OF LORD MANSFIELD.
tion of the inhabitants of Perth and the surrounding country,
who idolised the young Earl of Gowrie and had risen to
avenge his death. For these services a considerable portion
of the forfeited estates of that nobleman was bestowed upon
him. The site of the ancient Abbey of Scone,—where the
kings of Scotland had been crowned from the remotest
antiquity, and where stood, till it was removed to West-
minster by Edward I., the famous stone on which they were
anointed, — had been granted to the Earl, after the sacred
edifice itself had been burnt to the ground by the reformers ;
—and here he was erecting a new castle, or PALACE (as it was
called, from royal recollections), at the time of his attainder.
This became part of the possessions of the new favourite,
who completed the structure, and was designated Lord
Scone, the property having been erected into a temporal
barony. He continued in high favour at court till James’s
accession to the throne of England; and, although he was
then cast off for other minions, he was afterwards, by letters
patent bearing date 16th of August, 1621, created Viscount
Stormont.* This title, long borne by his descendants in the
lineal male line, was absorbed by the earldom, which a cadet
won by very different arts and achievements.
For several generations following, the family were dis-
tinguished by extravagance rather than by talent or enter-
prise, and a large portion of the possessions which they had
received from the bounty of King James VI. had been
alienated. In the time of the fifth Viscount little remained
to them beyond the Castle of Scone, which, in a dilapi-
dated condition, frowned over the Tay in the midst of
scenery which for the combination of richness and picturesque
beauty is unsurpassed. He had married the only daughter
of David Scot, of Scotstarvet, the heir male of the Scots of
Buccleugh; but had received a very slender portion with her,
as their vast possessions had gone with the daughter of the
last Earl, married to the Duke of Monmouth. To add to
the difficulties of the poverty-stricken Viscount, his wife,
* There may still be seen in the adjoining church a fine marble monument
over his tomb, representing him, as large as life, in a kneeling posture, and in
complete armour.
LIFE OF LORD MANSFIELD.
although of small fortune, was of wonderful fecundity, and
she brought him no fewer than fourteen children. For these
high-born imps oatmeal porridge was the principal food which
he could provide, except during the season for catching
salmon, of which a fishery near his house, belonging to his
estate, brought them a plentiful supply.
William, the eleventh child and fourth son of this brood,
destined to be Chief Justice of England, was born in the
ruinous castle of Scone on the 2d day of March, 1705.*
I do not read that his mother had any prophetic dream while
she carried him in her bosom, or that any witch or wizard
with second sight foretold his coming greatness. He muled
and puked like other children, and when it was time that he
should be taught his letters he was sent to a school at Perth,
only a mile and a half from his father’s residence, where he
ran about with the sons of the surrounding gentry and of the
citizens and tradesmen of the town, all barefooted, and
speaking a dialect which was not Caelic, for Perth was
always within the boundary which separated the Lowlands
of Scotland from the Highlands, but which was a patots
hardly to be called Anglo-Saxon. f
Holliday, — who, although he had every advantage in
writing the Life of Lord Mansfield, being himself a lawyer
in extensive business, having often practised before him, and
having been honoured with his friendship, has left us the
worst specimen of biography to be found in any language,—
says, “ About the tender age of three years he was removed
to, and educated in, London; and, consequently, he had not,
when an infant, imbibed any peculiarity of dialect.” This
statement has been followed by all the subsequent biogra-
phers of Lord Mansfield, and has been assumed for truth by
all who have since referred to his early career. Accord-
ing to Boswell, “ Dr. Johnson would not allow Scotland
to derive any credit from Lord Mansfield, as he had been
* The date is usually given 1704, but this is according to the old style.
+ A very circumstantial account of his infancy was given by his nurse, who
died in 1790, in the parish of Monimail, in Fife, at the age of 105. She
usually concluded her narrative by observing that “ Mister Willie was a very
fine laddie.” See Sir Jobn Sinclair’s Statistical Account of Scotland, ii, 404.
x 2
307
CHAP,
XXX.
A.D. 1705,
Birth of
William
Murray,
afterwards
Earl of
Mansfield.
Refutation
of the oft-
told tale
that he was
removed to
England in
his infancy.
308
CHAP,
XXX.
A.D. 1710
—1713.
Words
which he
could
never learn
to pro-
nounce
like an
English-
man.
Fable of
his having
been edu-
cated at
Lichfield.
Willie
Murray at
Perth
School.
LIFE OF LORD MANSFIELD.
reared in England; observing, ‘Much may be made of a
Scotchman if he be caught young.” But I have ascertained
from his near kinsmen, who speak from family papers, that
the story of his being thus caught and tamed is pure in-
vention. He remained at the grammar-school at Perth till he
was in his fourteenth year,— when he went to Westmin-
ster. Afterwards, by constant pains with his pronunciation,
and by never returning to visit his native country, he
did almost entirely get rid of his Scottish accent; but
there were some shibboleth words which he could never pro-
nounce properly to his dying day, and which showed that his
organs of speech had contracted some rigidity, or his organs
of hearing some dulness, before his expatriation. For ex-
ample, he converted regiment into reg’ment; at dinner he
asked not for bread but for brid; and in calling over the bar
he did not say “ Mr. Solicitor,” but “ Mr. Soleester, will you
move any thing?”
I need hardly notice the equally unfounded story that he
was at Lichfield School along with Lord Chancellor North-
ington, Chief Justice Willes, Chief Justice Wilmot, Chief
Baron Parker, Sir Thomas Clarke, Master of the Rolls, and
a herd of puisne judges, who are supposed to have there
played together at taw, and afterwards simultaneously and
exclusively to have presided in Westminster Hall. Instead
of such amusing wonders, I am obliged to state that he spent
his boyhood among companions whom he never afterwards
met, or much wished to meet again. However, Latin was
infinitely better taught then in the grammar-schools of Scot-
land than at the present day; and young Willie Murray
could not only translate Sallust and Horace with ease, but
had learned a great part of them by heart, — could converse
fluently in Latin,—could write Latin prose correctly and
idiomatically,—and even could have contributed Latin verses
to the DeLicira PorTrarum Scororum, a collection of mo-
dern Latin poems which had been published not long before
in Edinburgh, and which must be allowed to be much supe-
rior to the Musa Eronenses or the ARUNDINES Camt.*
* T have often been at a loss to understand how Latin versifieation, which had
flourished in Scotland so much in the 16th and 17th centuries, disappeared so
LIFE OF LORD MANSFIELD.
In Greek he made little progress beyond learning the
characters and the declensions.*
But there was another foreign language which he was
taught grammatically, and,which he was supposed to speak
and to write with wonderful facility and accuracy. Pure
English was laboriously attended to at Perth School, both
in reading and composition; its rules and its irregularities
were fully explained, and the writing of an English essay
was an exercise required from the boys at the peril of the
ferula. ord Mansfield, in his old age, was often heard to
declare that when at Westminster and at Oxford, and even
when contending with rivals in public life, he had enjoyed
an essential advantage from this discipline, as he discovered
that in England, while they wasted many years on Latin and
Greek prosody, they almost entirely neglected the scientific
cultivation of their mother tongue ; and he found eminent
lawyers and statesmen who, when forced to commit their
thoughts to writing, showed that they had no notion of the
division of English prose into sentences, and who, though
decently well acquainted with orthography, set at utter
defiance the rules of grammar.
Willie Murray, according to the tradition in his family,
while going through the school at Perth, displayed the
sharpness of intellect, the power of application, and the re-
eularity of conduct which distinguished him in his after-
career. He was almost always Dux, or head of his class ; and,
albeit that, according to the custom of the age, flagellation
with the taws was administered even for small faults, his
hand remained without a blister. f
completely in the 18th. When I was aboy, although the habit of composing Latin
prose was well kept up, I do not believe that in all Scotland there was either a
schoolboy or a schoolmaster who, to save his life, could have written in Latin an
alcaic ode, or twenty hexameters and pentameters alternately. The practice of
speaking Latin still prevailed. There has since been an attempt at a revival,
and Latin versification is practised at the High School of Edinburgh, and other
classical seminaries, —but, if we may judge from the “ Muse Edinenses,” not as
yet with very great success.
* Iam sorry to say that Greek has at no time been cultivated in Scotland as
this noble dialect deserves, although it has been much more attended to of late
years, since professors bred at Oxford and Cambridge have been elected to the
Greek chairs in the Scotch Universities.
+ Instead of the birch applied to another part of the person, in English fashion,
the Scots have adopted the punishment which made good scholars at Rome, —
“ Et nos ergo manum ferule subduximus.”
x S
309
CHAP.
XXX.
A.D. 1710
—1713.
310
CHAP.
XXX.
A.D. 1713
—1718.
Items in
family ac-
counts for
books, &c.,
for him
while he »
was a
school-boy.
LIFE OF LORD MANSFIELD.
Till the year 1713, Lord and Lady Stormont continuing
to reside in the palace at Scone, Willie lived at home with
them, and he daily walked or rode on a pony to school, —
thus combining, in the Scottish fashion, the advantages of
public education and of domestic discipline. But, for the
sake of economy, the family was then moved to a small house
at Camlongan, in the county of Dumfries; and Willie and a
younger brother, Charles, were boarded with Mr. Martine, the
master of the grammar-school at Perth, who received for
them a yearly payment in money and a certain allowance of
oatmeal. The following items respecting them, which I
have extracted from the accounts of Mr. Barclay, a writer to
the signet, Lord Stormont’s Edinburgh agent, may amuse
the reader : —
£ +8. .d.
“1715. May 25. Item.—Sent to Scone per Lady’s letter for
Mr. William, CmsaAris Commentarius - 1 04 OO*
1717. Aug. 8. Item.— At order bought of Mr. Freebairn for
Mr. William, my Lord’s son, Trrus Livius,
in a great folio and large print, for 20s.
Sterlin, sent to Perth by Walker the
carrier - - 6 00 00
— June 24, Item.— Paid ie Mr. i Tokay Martine for Mr.
William and Charles, ther quarter payment
and for their board from 17th June to 17th
Sept. p' receipt - 60 00 00
— July 13. Z4.— —Payd to Charles Metvitl, harchtet in Perth,
a year’s chamber meal for Mr. William and
Mr. Charles as p* discharge to Whyts.
L7l 7 - - - - - 18 00 00
— Aug. 16. /t.— For cutting Mr. William and Charles
: hair | - - - - - - - 01200
— Sept.24. /.--To a Perth carrier for bringing over
books from Ed*® to Mr. William - 00 06 O
Jt. — Given out by the Compter for Mr.
William and Sealed as L pep geules ac-
ces - - 35 19 00
— For a pair ar Bee for “Mr. William - 03 12 00
— Noy. 14. aed from Mr. William Murray, my Lord’s
son, with one inclosed to his sister Amelie O00 02 00
— Nov. 19. A letter from Mr. William with one inclosed
to my lady from St. Andrews - - - 00 02 00”
* On examining this account I was much surprised at the seeming enormously
high price of books in Scotland in the beginning of the last century, till I dis-
covered that it is kept in Scottish currency —by which the pound, which was
once the same all over Europe, being a pound of silver according to the standard
of Troyes, and was reduced in England to one-third of its original yalue, — in
France to 10d., — was reduced in Scotland to ls. 8d. of English currency ; —
so that the price of Casar’s Commentaries, instead of being 11. 4s,, was only
2s. Of course all the other items are to be lowered in proportion.
LIFE OF LORD MANSFIELD.
When Mr. Solicitor General Murray was afterwards rising
into greatness, envious libels upon him sarcastically referred
to his early education, and the following graphic account was
given of his schooling at Perth : —
“ Learning was very cheap in his country, as it might be had
for a groat a quarter, so that a lad went two or three miles of a
morning to fetch it; and it is very common to see there a boy of
quality lug along his books to school, and a scrip of oatmeal for
his dinner, with a pair of brogues on his feet, posteriors exposed,
and nothing on his legs.” *.
Willie Murray approaching his fourteenth year, the time
was at hand when, according to the system of education then
and still subsisting in Scotland, he was supposed to have learned
all that could be acquired at school, and it was in contempla-
tion to send him to the neighbouring University of St. An-
drew’s, where some remains of the passion for classical learning,
kindled by George Buchanan when Principal of St. Leonard’s
College, still lingered. f
Much perplexity existed in the family with respect to the
choice of a profession for him. His father, although he had
not joined the Earl of Mar or fought at Killiecrankie, was a
decided Jacobite, and his brother James had followed the
Stuarts into exile. There was, therefore, little hope of pro-
motion for any of the family from Court favour as long as
the House of Hanover should keep possession of the throne.
The Church offered no resource; for the Nonjuring Episco-
palians were not even tolerated, and few of the Presbyterian
livings reached 1002. a year. The law was more hopeful,
but, from its being the only civil profession in Scotland
deemed fit for a gentleman, the numbers who followed it bore
a fearful proportion to its emoluments.
Upon this subject Lord Stormont consulted James, his
second son, with whom, although now avowedly belonging
to the court of the Pretender, and created by the banished
* Pamphlet entitled “ Broapsorrom,” ;
+ Having heard asurmise that he actually studied at St. Andrew’s during the
session 1717-18, I caused a search to be made, through the kindness of my
friend Sir David Brewster, Principal of the United College of St. Saviour’s and
St. Leonard’s there —but the only matriculation of any of the family to be
found is that of his brother Charles: “Cha: Murray fil: Vicecomitis de Stormont,
matriculated in Coll. D, Leonardi. 1721.”
x 4
311
CHAR.
XXX.
AD. 1713
Delibera-
tions re-
specting
his further
education
and his
profession.
His bro-
ther James
created by
the Pre-
tender Earl
of Dunbar.
312
CHAP.
b.@.@.¢
Ap 1718.
He advises
that Willie
should be
sent to
Westmin-
ster.
LIFE OF LORD MANSFIELD.
sovereign EARL or Dunsar, he still indirectly kept up an
affectionate intercourse.
This gentleman, who is said to have possessed the same
shining abilities and silver-toned voice as William, when he
had reached his eightieth year died an outlaw*, but during
the early portion of his exile he no doubt expected, like
another Clarendon, to see the legitimate heir restored to the
throne and to rule Britain in his name. He had been bred
to the bar in Scotland, and probably would have gained
great forensic eminence had it not been that in the year
1710, before he had made much progress in his profession,
he was returned to the House of Commons as representative
for the Elgin district of burghs. He thereupon went up to
London, and enlisted himself under the banner of Boling-
broke, professedly belonging to the high-Tory and secretly
abetting the Jacobite cause. He was thus naturally intro-
duced to Bishop Atterbury, then Dean of Westminster, and
by political sympathy he gained the confidence of this daring
prelate, who, when others quailed, himself offered in his lawn
sleeves to proclaim James III. When, at the death of
Queen Anne, Bolingbroke’s plot to bring in’ her brother
failed, and George I. quietly succeeded as if by hereditary
right, James Murray followed the example of his leader, and,
much more steady and trustworthy, he always remained
true to the Stuarts, notwithstanding their imbecility and
their bigotry. He hoped to draw over his brother William,
of whose sprightly parts he had heard much, to the same
side. or this purpose he thought there could be no means
so effectual as having him educated under the auspices
of Atterbury. He therefore wrote back to his father a
flaming account of Westminster School, — mentioned the
distinguished men he had become acquainted with who had
been reared there, —stated that, with proper management,
the expense of starting a boy there was not considerable, —
hinted at the interest he still had which might be made avail-
able to have Willie put upon the foundation as a King’s
scholar,—pointed out the certainty of his obtaining a scholar-
3 ne He died at Avignon in 1770, and was fifteen years older than Lord Mans-
ield.
LIFE OF LORD MANSFIELD. S13
ship at Christ Church,—and showed how, in that case, every CHAP.
thing would be open to him in the church and in the state. ie
The plan seemed so feasible, that at a family council it was
unanimously approved of, and Willie was delighted with the
prospect of speedily seeing all the wonders of London instead
of pining in the gloomy cloisters of St. Andrew’s, or being
overpowered by black smoke and bad smells in Auld
Reekie.
He was to perform the whole journey on horseback, — Willie to
riding the same horse. Post-horses were not established till ape
long after. There were then two or three times a month
traders from Leith to the river Thames, in which passengers
might be accommodated; but, if the wind was foul, they
were sometimes six weeks on the way. will save you the exchang. My cusine will give
you a receit of the moey when it is pay’d her at Ed', w° shall
* 21 May, 1719. (Printed list of King’s Scholars.)
LIFE OF LORD MANSFIELD.
be sufficient.* Yr LaP ffriends abroad are weill.t Pardon the
trouble of my long lve. I had no mind to send the bills in this
letter because of its bulk. But I shall next week in a ffrank.
“Tam, Madam,
“ Yr LPs most obedient humble servant,
“« J. Wemyss.
** London, May 2]. 1719.”
During the next four years of Mr. William’s career at
Westminster School the following is the only anecdote of
him handed down to us : —
*‘ Lady Kinnoul, in one of the vacations, invited him to her
home, where, observing him with a pen in his hand, and seem-
ingly thoughtful, she asked him ‘ if he was writing his theme, and
what in plain English the theme was?’ ‘The schoolboy’s smart
answer rather surprised her ladyship — ‘ What is that to you ?’
She replied, ‘How can you be so rude? I asked you very civilly
a plain question, and did not expect from a schoolboy such a pert
answer. The reply was, ‘Indeed, my lady, I can only answer
once more, What is that to you?’ In reality the theme was
QUID AD TE PERTINET.” f
I find general statements of his diligence and rapid pro-
gress in his studies : —
* There is an item in Mr. Barclay’s accounts showing that the balance had
been paid by him ; —
“1719. Oct.17. It. Paid to Mrs. Janet Cuningham 22 Jib. 5s. 9d.
ster., on accompt of Mr. Wm. Murray, my Lord’s son,
on Mr. Wemyss letter to Mrs. Janet, and Mrs. Janet’s
receipt and my Lord’s verball order at Scone to pay it.
Inde - - - - - - - - - 267 09 00”
Money for Mr. Wm.’s use appears to have been remitted by Mr, Barclay to
Mr. Wemyss : —
“1720. Jany. 28. Jt. To Peter Crawfurd, factor, fora bill of £25
ster,, drawn by him payable to the Compter on George
Middleton Goldsmith in London, and indorsed by the
Compter at my Lord’s order to James Weems, Apo-
thecarie in London, for behoof of Mr, William Murray,
my Lord’s son—the money and exchange to Peter
Crawfurd being £25 10s. Inde - - - - £306 00 00”
The bill had duly reached its destination, as appears from the following
acknowledgment ; —
“ Sir, — This comes to acquaint you that I have received the bill of 25 lib.
sent by my Lord Stormont’s order for the use of his son Mr. William, who is
very weill, From “ Sir
« Yt humble Serv‘.
«“ June 26. 1720.” «“ Jo. Wemyss.
+ This is probably a dark allusion to the court of the Pretender.
¢ Holliday, p. 2.
317
“CHAP,
XXX.
A.D, 1719
—17283.
Anecdote
of him
while at
Westmin-
ster.
3]8
CHAF?
XXX,
A.Dd. 1719
—1723.
He is
elected a
scholar of
Christ
Church and
goes to
Oxford.
LIFE OF LORD MANSFIELD.
“ Fortunately,” says a respectable biographer, “ the school had
never been ina more flourishing condition than at the period when
he entered it. ‘The number of the boys amounted to five hundred ;
and, besides the advantage of having for their daily instructors
two such eminent scholars as Doctors Friend and Nicholl, they
were examined at elections by Bishop Atterbury, who attended in
his capacity of Dean of Westminster, Bishop Smalridge as Dean of
Christchurch, and ‘Bentley as Master of Trinity College, Cam-
bridge. The learned rivalry of such men could hardly fail to
excite a corresponding emulation among the young scholars who
were in the habit of witnessing it; and in the constant compe-
tition of talent to which this excitement must have given an
additional stimulus, none shone more conspicuous than Murray.
It is particularly recorded of him that his superiority was more
manifest in the declamations than in any of the other exercises
prescribed by the regulations of the school, — a fact not to be over-
looked in the history of one who afterwards, as an orator, equalled
if not excelled such competitors as it falls to the lot of few nations
or ages to possess. His proficiency in classical attainments was
almost equally great.” *
‘“‘ During the time of his being at school,” says another who was
actually his chum, “ he gave early proof of his uncommon abilities,
not so much in his poetry as in his other exercises, and particularly
in his declamations, which were sure tokens and prognostics of
that eloquence which grew up to such maturity and perfection at
the bar and in both houses of parliament.” ¢
Certain it is that, at the election in May, 1723, after a
rigorous examination, it was found that William Murray was
still “ Dux,” for he stood the first on the list of the King’s
scholars who were to be sent on the foundation to Christ
Church. The following is an exact copy of his admission
there : —
“ Trin. Term. 1723, June 18.
id, Xti. Gul. Murray 18,
David f, Civ. Bath.
C. Som. V. Com. fil. T. Wenman, C. A.”
It will be observed that the place of his nativity is de-
scribed as Bath instead of Perth. ** Sir William Blackstone is
said to have mentioned this curious circumstance to the Lord
* Welsby, Lives of Eminent Judges, p. 370.
t+ Bishop Newton, p. 21.
LIFE OF LORD MANSFIELD.
Chief Justice of the King’s Bench while he had the honour
to sit with him in that court; when Lord Mansfield answered
‘that possibly the broad pronunciation of the person who gave
in the description was the origin of the mistake.” * This
person was no other than himself, and he most likely misled
the registrar by aiming at an English pronunciation, and
calling the place Parth,—being still under the delusion,
which holds some Scotsmen all their lives, that what is not
Scotch in pronunciation and in idiom must necessarily be
English. ¢
At this period of his life it was intended that he should
take orders in the English Church; and his family, if they
did not hope that he would rise to be Archbishop of Canter-
bury, reckoned with confidence upon his being comfortably
placed in a good college living. This last, probably, would
have been his fate, and he would have been noticed after
his death only in the parish register or in a pedigree of the
Stormont-Murrays, had it not been for the accidental inter-
ference of an English nobleman wholly unconnected with
him by blood or affinity. When he first left home, the
notion of his being called to the bar in England had been
talked of, but had been abandoned upon ascertaining that the
expenses of a legal education were far greater in England
than in Scotland, and would much exceed what the noble
Viscount his father could afford. The young man himself
acknowledged the necessity imposed upon him of taking
orders; but when at Westminster School, having occasionally
visited the great hall and heard the pleadings of Yorke and
Talbot, he felt (as he described it) “a calling for the pro-
fession of the law,” and he regretted that he could not try
the effect of his eloquence at the bar rather than in the pul-
pit, notwithstanding the advantage which, as an ecclesiastical
orator, he would enjoy of being freed from all apprehension of
immediate refutation or reply. About the time of his re-
* Holliday, p. 2.
+ In this instance he might easily have been misled by analogy, which can so
little be trusted in English pronunciation, as e before r is often pronounced like
an a: — Berkshire, Barkshire; Clerk, Clark ;. Serjeant, Sarjeant. Pand Bare
easily misunderstood for each other; and the r would be hardly discernible
between a and th; — so that we have Perru converted into Barn.
319
CHAP.
XXX.
A.D. 17235
His desti-
nation ,
changed
from the
Church to
the Bar.
320
CHAP.
XXX.
AvDad L235
1724.
Assistance
afforded
him by the
first Lord
Foley.
While at
Oxford he
is entered
of Lincoln’s
Tnn.
His studies
at Oxford.
“LIFE OF LORD MANSFIELD.
moval to Oxford, he had casually mentioned his disappoint-
ment to a schoolfellow, a son of the first Lord Foley. This
peer, who had amassed enormous riches from the invention of
manufacturing iron by means of coal instead of wood, pos-
sessed a liberal and enlightened mind, and, having seen
William Murray at his country house during the holidays,
had discovered his genius, and had taken a fancy for him.
Hearing that, on account of the narrow circumstances of his
family, he was going, rather reluctantly, to prepare himself
for ordination, instead of following the bent of his genius to
study the law, he, in the most generous and delicate man-
ner, encouraged him to enter a career for which he was so
well qualified, and undertook to assist him with the requisite
supplies till the certain success which awaited him should
enable him to repay the advance with interest. The offer so
handsomely made was frankly accepted, and it had the aus-
picious result of establishing a real friendship between the
parties notwithstanding inequality of years.
With the consent of his family, the arrangement was made
that Murray should be entered of an Inn of Court while he
remained an undergraduate at Oxford; and, on the 23d day
of April, 1724, he became a member of the Honourable Society
of Lincoln’s Inn, although he did not begin to keep his terms
there till he had taken his bachelor’s degree. *
He resided at Oxford near four years, and made all his
studies subservient to the profession which of his own liking
* « Honbis Willus Murray filius p". honblis Vicecomitis Stormont admissus
est in Societatem hujus Hospicii vicesimo tertio die Aprilis anno regni Dni or]
Georgii Dei gra Magne Britanniz Fra & Hibnie Regis, &c. decimo annoq.
Dni 1724. Et solvit ad usum Hospicii p'. d. £3 3s. 4d.
Will. Hamilton,
A. V. Hamilton. |
“ Admissus. John Washer.”
Half.the dues for which he was liable before he began to reside and keep his
terms was afterwards remitted to him : —
« At a Council held the 12th day of November, 1728.
“Upon the petition of the Hon!e William Murray, Esq'. a fellow of this
Society, praying leave to compound for his absent Comons, it is Ordered that he
be at liberty to compound for the same on paymt of half wt is due to the
Treasurer of this Society before the next Council; but if the said Mr. Murray
shall within two years from this time be called to the Barr, sell his Chamber, or
leave this Society, then it is Ordered that in either of the said eases he shall pay
the remt of wt is due for his Absent Comons.”—Books of Lincoln’s Inn.
“ Manucaptor
LIFE OF LORD MANSFIELD.
he had adopted, —his energy being doubled from his con-
sidering the responsibility he had incurred, by deviating from
the beaten track to obscure competence which lay open
before him.
We have not any minute account of the disposition of his
hours during his residence at Oxford, but we know that he
escaped pretty well the two great perils to which he was
exposed, “ Port and Prejudice.” While Henley and other
contemporaries were fostering the gout, and insuring pre-
mature old age, he preserved his constitution unimpaired.
There is reason to think that he still inwardly cherished the
high-Tory, or rather Jacobitical, principles which he had
imbibed under the paternal roof; but he prudently con-
cealed them, except on very rare occasions when he was
heated by wine. Strange to say, in the atmosphere of bigotry
which he breathed, although himself sincerely attached to the
episcopalian form of church government, he entertained and
professed liberal sentiments on religion, and strenuously
advocated the cause of toleration against the universal voice
of his companions, who, while they would have hesitated
about burning Dissenters, were eager rigidly to enforce
against them all the statutes by which they were deprived
of civil privileges.
Regular in chapel and at lecture, he did not neglect the
peculiar studies of the place; and, without joining in the
superstitious worship of Aristotle, he had the discernment to
discover and the candour to acknowledge this philosopher
to be the greatest master who had yet appeared, not only of
the art of reasoning but of politics and literary criticism.
Such discipline he submitted to in deference to authority:
when he gratified the passion of his own bosom he devoted
himself to Oratory, by which his grand objects were
to be accomplished. Those who look upon him with ad-
miration as the antagonist of Chatham, and who would
rival his fame, should be undeceived if they suppose that
oratorical skill is merely the gift of nature, and should know
by what laborious efforts it is acquired. He read systema-~
tically all that had been written upon the subject, and he
made himself familiar with all the ancient orators. Aspiring
VOL. II, ne
321
CHAP.
XXX,
A.D: 1725
—1727.
He devotes
himself to
the art of
oratory.
322
CHAP.
d.0,.0.%
A.D. 1725
—1727.
His Latin
Essay cri-
ticising
Demos-
thenes.
LIFE OF LORD MANSFIELD.
to be a lawyer and a statesman, Cicero was naturally his chief
favourite; and he used to declare that there was not a single
oration extant of this illustrious ornament of the forum and
the senate-house which he had not, while at Oxford, trans-
lated into English, and, after an interval, according to the
best of his ability, retranslated into Latin.
He likewise diligently practised original composition, both
in Latin and English, knowing that there is no other method
by which correctness and condensation in extempore speaking
can be acquired. From the fatal conflagration which de-
stroyed his papers in 1780 there was preserved a fragment of
a Latin Essay, written by him on the chef d’euvre of De-
mosthenes, Ilgpt Xtépavov. A few extracts from it may
show his acquaintance with the dialect which he used, and
his tasteful appreciation of the divine composition which he
criticised. After stating the occasion of the oration, and
analysing its different divisions, he exclaims —
“¢ Qua solemnitate exordii animos auditorum incitat! Deosque
deasque omnes benevolentiz suze in civitatem testes adhibet !
Quam sibi modest&é meritorum in cives suos commemoratione ad
se audiendum munivit viam! Dum nihil aliud videtur elaborare
quam ut cum quo animo judices audiant, efficit ut prosequentur
benevolo. Mentibus omnium ad lenitatem misericordiamque erga
se revocatis, de legibus pauca disceptat. Qua subtilitate /Xschinis
interpretationem oppugnat et evertit, suam defendit et probat:
Quam acuta et enucleata est hac tota disceptatio, quam pressa !
Festinat enim ad res suas pro Republica gestas (quod validissimum
cause firmamentum videbatur) orationem convertere et in uberiori
administrationis suze campo spatiari.”’ *
Thus he praises the transition to invective, when the orator,
like the dew descending in the evening on a parched field,
¥ « With what solemnity his exordium seizes the hearts of his audience! He
adduces all the gods and goddesses as witnesses of his love for his country.
With what a modest reference to his own services does he prepare the way for
a favourable hearing! While he professes only to implore that they will listen
to him with the impartiality of judges, he renders them all eager for his ac-
quittal. Their minds being thus softened towards him, he proceeds briefly to
consider the legal and constitutional principles by which the cause was to be
decided. With what subtlety does he combat and destroy the positions of
ZEschines — while he defends and establishes his own! How acute, how terse,
and how condensed is this portion of his discourse! For he hurries on to his
own measures and to his administration of public affairs, upon which judgment
was to be pronounced.”
LIFE OF LORD MANSFIELD.
323
had soothed the indignation excited by the peroration of his CHAP.
antagonist : —
XXX.
. © Quis flexanimam Demosthenis potentiam digne explicaverit -
p > AD. L725
qu summissio placidoque principio in animos omnium, velut in —1727.
accensos agros taciturno roris imbre leniter fluentes incendium
quod reliquerit A‘schines extinguit, populique furorem placat.
Mox vehemens et acer vi quidem incredibili auditores extra se,
contra /Eschinem calumniatorem odio, mercenarium Philippi con-
temptu proditorem patriz ira rapit.” *
In conclusion he draws a parallel between the respective
chiefs of Greek and Romon eloquence; giving on this occa-
sion the preference to the former, although the latter was
known really most. to have occupied his time, and to have
engaged his affections : —
“ Demostheni, qui sub historici persona oratorem celat, qui
~ felici e& audacia quam veritas sola parit, beneficiorum cives, bene-
volentiz suz Deos testes adhibet, credimus et favyemus. Cicero,
placatis judicum animis quantum ipsi patiuntur accepit, tanta
tamen ejus facundia, ut quidvis impetrare posse videatur. Non
petit Demosthenes sed rapit, sed impetu quodam pene divino,
sententias de eorum manibus extorguet. Dulei Ciceronis arte
veluti Sirenum cantu, delectati judices cum illo malunt errare,
quam cum aliis recté sentire. Demostheni tanta auctoritas inest,
ut pudent dissentire, et cum fulmine eloquentia ¢ransverse feruntur
auditores, non oratoris arte abripi, sed naturam sequi, sed rect
rationi se parere credunt. Cum orationes suas contra Clodium
aut Catilinam figuris auget, elocutione Tullius exornat, circum-
stantis populi clamoribus etiam admiratione excipitur. Cum De-
mosthenes contra Auschinem iis affectibus, qui ab tpsa natura
oriuntur, suam animat iracundiam, dicentis obliviscuntur Athe-
nienses, et (ut histori proditum est) eodem furore omnes inflam-
mati mercenarium JEschinem appellant.” f
* « Who shall ever be able to explain the mastery of Demosthenes over the
human affections? Beginning in a mild and subdued tone, like dew gently
descending on the parched fields, he extinguishes the flame which schines had
raised, and soothes the popular fury. But soon after, having become vehement
and sarcastic,—-with miraculous force he controls at will the feelings of his
hearers, and holds up Aschines to their indignation, hatred, and contempt, as a
calumniator, as the mercenary tool of Philip, and as the betrayer of his native
land.”
t “ When Demosthenes, concealing the skilful advocate under the disguise
of a plain narrator of facts with that felicitous boldness which is supposed
to spring from truth alone, appeals to his fellow citizens as witnesses of the
benefits he has conferred upon them, and to the Gods themselves to prove the
ardent patriotism that had ever animated his bosom, we implicitly believe all he
¥ 2
324
CHAP.
XXX.
Ac. 1727.
He gains
the Latin
prize poem
on the
Death of
George I.
LIFE OF LORD MANSFIELD.
This criticism shows that Murray, long before he ever
spoke in public, had reflected much and deeply on the prin-
ciples of the art in which, with a view to the distant future,
he was earnestly endeavouring to improve himself, and that
he had been early accustomed to calculate by what means a
particular effect is most likely to be produced on the passions
or the understandings of a popular assembly.
He continued, but with far less success, to cultivate the
Muses in the mechanical fashion which he had learned at
Westminster; and, on the death of George I., he entered
into a competition with all the most accomplished versifiers
then at Oxford to celebrate the praises of that poetry-hating
monarch.*
The art of grinding Latin verses must then have been
extremely low at Oxford, for Murray’s poem gained the first
prize. Ido not pretend to be by any means a nice judge of such
compositions, but it seems to me a very wretched production,
and I could point out much better imitations in the Musa
Epinenses. Thus he begins with a description of the
terrible blow by which the sword of fate had deprived the
United Kingdom of GrorGE, the conqueror of the Rhine
and of the Danube: —
says, and, warmly taking his side, we are impatient to see him vindicated and
rewarded, Cicero having convinced the understandings of the judges before
whom he pleads, they, after deliberation, pronounce in his favour the sentence
which they think just; the eloquence displayed by him, however, being so
brilliant, that we conceive there is nothing which would not be conceded to it.
Demosthenes does not ask —he seizes — by an energy almost divine, he wrests
from the hands of the judges the sentence which he desires. Being captivated
by the witching art of Circero as by the song of the Sirens, they are better pleased
to go astray with him than to decide righteously with others. Such authority
does Demosthenes carry along with him, that his hearers are ashamed to differ
from him, and, when struck by the lightning of his eloquence, they do not seem
to be carried away by the art of the orator, but believe themselves to obey a
natural impulse, and to yield to the dictates of right reason. When Cicero orna-
ments with the choicest figures of rhetoric and beauties of language his decla-
mation against Clodius or Cataline, he is received with the admiration and
plaudits of surrounding multitudes. When Demosthenes kindled rage against
his accuser by giving vent to feelings which seem to rise spontaneously in the
human heart, the Athenian people forgot the crimes imputed to the accused,
and (as history relates), all inflamed with the same fury, hooted at /Eschines
as a wretch who had been suborned to bring a false charge against an innocent
man.”
N.B. I am afraid that, from long disuse, ‘my translation is very imperfect,
although I once was accustomed to the exercise from which Murray is supposed
to have derived such advantage.
* Trying to speak English, when refusing to allow a poem to be dedicated
to him, he exclaimed, “ I hate all Boets and Bainters !”
LIFE OF LORD MANSFIELD.
“ Quo percussisti Britonas conjunctaque regna
Ictu, Fati ensis! trepidant ipsa atria regum
Ingentemque stupet meerens Europa ruinam,
Georgius ocecubuit Rheni pacator et Istri:
Et dubitamus adhue animam accumulare supremis
Egregiam donis ? quondam decus omne Britannis
Spargite flore pio cineres, oleeque Minerva
Inventrix, et Phoebe pater, cui laurea cura!
Hie Juvenis laurum sovit, longzvus olivam.” *
After expatiating at great length upon the achievements
and virtues of the deceased, lest the nation should be thrown
into absolute despair by such a heavy privation he concludes
with a panegyric on the “other hope of Britain,” under
whose enlightened sway they were about to live, and who
was not less tenderly beloved by the gownsmen of Oxford
than by his spouse, Queen Caroline : —
« Tu tamen interea, quondam spes altera gentis
Nunc decus et columen, populo plaudente, Britanno
Succedis Solio ; ordinibus discordia cessit
In te diversis, patria vox una salutat.
Hos inter plausus procerum plebisque benigno
Accipias Rex ore, vovet tibi terga togata,
Que, studiosa cohors operum! pars parva tuorum
Non ingrata tamen ; quoniam nec amantior ipsa
Est Carolina tui, licet illi pronuba Juno
Et Venus eterna cinxerunt pectora flamma.”
* « Thou sword of fate, with what a fearful blow
Hast thou made England shake from top to toe.
Lo! Windsor’s royal halls are fill’d with dread ;
And Europe, stunn’d, laments the mighty dead.
See George, who both the Danube and the Rhine
Subdued and civilised, at last resign
His throne and breath. And shall the grateful Muse
Her tribute to such wondrous worth refuse ?
No; let Minerva strew with Phcebus here
Her olive with his laurel on His bier,
Whose warlike youth to laurell’d honour Jed,
Whilst peaceful olive crown’d his aged head.”
+ ‘But cease, my Muse, these fond lamenting strains ;
Our rising hope, and now our glory, reigns.
Hark to that shout! the people’s joyful tone;
A second George ascends the British throne !
Lo! discord ceases, all at once agree,
United England looks, Great Sire, to thee.
Amidst these sounds, whilst all at once rejoice,
Thy band of Gownsmen raise their loyal voice,
Though small indeed their offerings seem to prove,
Deign to behold their merits in their love—
Not Carolina’s more, — though Juno’s crown
And Venus’ form have mark’d her for thine own.”
The poem is signed —
“Gut. Murray,
Honoratiss. Vicecom. de Stormont, Fil.
Edis Christi alumnus.”
¥ 3
325
CHAP.
XXX.
A.D. 1727s
326
CHAP
XXX.
AD. 1727.:
Origin of
the rivalry
between
him and
the elder
Pitt.
Murray at
Lincoln’s
Ton,
REIGN OF GEORGE II.
Tt is curious to think that the elder Pitt, between whom
and the two succeeding Georges there was such mortal enmity,
on this occasion tried to gain the prize for extolling George I.,
—certainly in no degree superior to them,—and is sup-
posed, by reason of his disappointment, to have contracted a
dislike of the fortunate candidate, which he cherished to his
dying day. No one could then have foreseen the more
brilliant strife in which the rivals were afterwards engaged
as leaders of the opposite factions in the state.*
Murray having taken his degree of B.A., without any
opportunity of testing his proficiency by Senate-house
honours, was transferred to London. He obtained chambers
in Lincoln’s Inn f, and began in good earnest to acquire a
knowledge of his profession. While at Oxford he had
attended lectures on the Pandects of Justinian, which gave
him a permanent taste for that noble system of juris-
prudence.
Unfortunately we have only an imperfect account of the
course of study which produced the most accomplished Judge
who ever presided in the Court of King’s Bench. We know
that he owed every thing to private and spontaneous exertion.
The false maxim on which legal education now rests in
England, “every man to learn as he likes,” t receives some
countenance from his example. When there is a combina-
tion of enthusiasm and steady perseverance, the want of
means of instruction provided by the state is little felt, and
tests of proficiency by public examination may be dispensed
with; but I conceive that, in regard to the great mass of
* The following is Mr. Macaulay’s criticism on the unsuccessful lines of
Pitt: —“ They prove that the young student had but a very limited knowledge
even of the mechanical part of his art. All true Etonians will hear with con-
cern that their illustrious schoolfellow is guilty of making the first syllable in
labenti short. The matter of the pcem is as worthless as that of any college
exercise that was ever written before or since. There is of course much about
Mars, Themis, Neptune, and Cocytus. The Muses are earnestly entreated to
weep over the urn of Cassar; for Cassar, says the poet, loved the Muses;
Czsar, who could not read a line of Pope, and who loved nothing but punch
and fat women.” — Hssays, li. 150.
+ Till he had been several years at the bar he lived in a very small set, three
stories high, No. 1. “Old Square,” then called Gatehouse Court. They were
pointed out to me when I commenced my career in a similar set, No. 2. three
stories high, next door ; and there are several entries in the books of the Society
connecting him with them.
¢ Or * laissez rien faire.”
LIFE OF LORD MANSFIELD.
. students entering a learned profession, it is necessary, by
institution and discipline, to guide inexperience, to stimulate
indolence, to correct the propensity to dissipation, and to
have some assurance that those intrusted with defending life
and property are decently well qualified for the duties which
they may be called upon to discharge.
During the three years that Mr. Murray passed as a
student in Lincoln’s Inn, all that the benchers required of
him was to dine in the hall five days each term, and once a
term to read the first sentence of a paper prepared for him
by the steward, called “an exercise,” a remnant of the an-
cient custom of scholastic disputation. But, by an admirable
disposition of his time, while he mixed in society and still
attended to elegant literature, he was sedulously and skilfully
preparing himself to be a great advocate and the greatest of
judges.
First, he thoroughly grounded himself in ancient and mo-
dern history by a perusal of the most eminent original histo-
rians. He then applied diligently to ethics, which he mastered,
and from his own experience he always strongly recommended
the philosophical works of Cicero. But he never showed any
taste for metaphysics, which were now engrossing the atten-
tion of his countrymen. The foundation of jurisprudence
he maintained to be the Roman civil law. Thence he pro-
ceeded to international law, doing full justice to the learning
and genius of Grotius, its codifier and almost its founder.
Next he entered on the feudal law, without which our law of
real property must be very imperfectly understood. Here
he showed his discernment by taking for his guide and his
favourite his countryman CralIG, whose treatise De Frupis
he justly thought was much to be preferred to any juridical
work which England had then produced. Next came the
English municipal law, and this he was obliged to search
for in very crabbed and uncouth compositions, which often
filled him with disgust and sometimes with despair. He
was pleased with Bracton, and could not deny the terseness
and perspicuity of Littleton; but he never could be made to
fall down and worship Lord Coke, whom we are taught to
regard as the god of our idolatry. Nay, he was unjust to
y4
327
CHAP.
XXX.
ASDA TAT
—1730.
328
CHAP.
XXX.
—
A. Dae TAy,
—1730.
REIGN OF GEORGE II.
the merits of this quaint and immethodical though learned
and accurate writer, and used constantly to be laughing at
his etymologies,—as, that “ parliament is derived from parler
le ment ;” and his trying to give reasons for all that the law
enacts, as his defence of the old sentence of mutilation in
high treason “ to show that the traitor ought to have had no
ancestors, and should have no posterity.” Indeed, instead of
being, like Sir William Blackstone, a legal optimist, he did
not sufficiently appreciate the merits of the old common law ;
overlooking the love of public liberty displayed by many of
its maxims, and its admirably contrived machinery for sepa-
rating questions of law from questions of fact, and for bringing
a suit to the real point on which it ought to be determined.
But he submitted to the drudgery of toiling through tire-
some text-books and rubbishy reports, and he became as well
acquainted with “collateral warranties” and “recoveries with
double voucher” as lawyers who, never travelling beyond
their black-letter lore, venerated these processes as the per-
fection of human reason.
Expecting to be employed in appeals from Scotland, which,
since the Union, were decided at the bar of the House of Lords,
he paid much attention to the law of that country, and he
expressed satisfaction with the methodical arrangement and
precise definitions of Mackenzie and Stair. But his true de-
light was to dip into the juridical writers of France, that he
might see how the Roman and feudal laws had been blended
in the different provinces of that kingdom; and, above all, to
pore over the admirable commercial code recently promulgated
there under the title of “ ORDINANCE DE LA MARINE,” which
he hoped one day to introduce here by well-considered judicial
decisions, —a bright vision which was afterwards realised.
He never had the advantage of being initiated in the
mysteries of legal warfare by any practioner; the pupilising
system, now in such vigour, having been introduced in the
following generation by the celebrated Tom Warren* and
Mr. Justice Buller.t He attended a debating society, where
* My great-great-grandfather in Law.
+ Lord Macclesfield and Lord Hardwicke had each sat in a law office before
being called to the bar; but the former had been an attorney, and the latter
was intended for one,
LIFE OF LORD MANSFIELD.
knotty questions of law were discussed ; and such pains did he
take in getting up his arguments, that the notes he then
made were frequently of use to him when he was at the bar,
and even after he had been elevated to the bench. But his
principal resource for gaining experience was attending the
courts at Westminster and listening to the judgments of
Chief Justice Raymond. He continued to think that, in the
absence of academical lectures and examinations, such an
attendance is the best opportunity which candidates for the
bar enjoy of gaining a liberal knowledge of their profession.
For this reason, considering it for the public welfare as
well as for their advantage individually that they should be
properly instructed, — when presiding in the King’s Bench he
was in the constant habit of explaining the intricacies of the
cases tried before him, and giving the reasons of his judg-
ments, not only to satisfy the parties, but, as he expressed it,
‘‘ for the sake of the students.” *
The marvellous circumstance is, that, in the midst of these
multifarious and severe studies, Mr. Murray was “ drinking
champagne with the wits.” I am almost afraid to record it,
lest it should seduce some heedless youths into the false and
deceitful notion that dissipation is compatible with success
in our profession. But let them remember, that before he
went to Will's or Button’s he had been eight or ten hours
busily employed in professional studies; and that, when he
associated with gay companions he never so indulged as to
be prevented from rising to light his own fire next morning,
or from sitting down to his books with a sound stomach and
a clear head. Above all, before they expose themselves to
temptation, let them wait till such noctes ceneque deim as
were enjoyed by Murray are actually in their power.
The most intimate and familiar friend he had in the world
was ALEXANDER Pore!!! To this prince of poets he had
been introduced, while at Westminster School, by his coun-.
* I began my legal studentship in the last days of Lord Kenyon. The
court at Westminster was so constructed, that we could have no communica-
tion with him; but I have a lively recollection that at Guildhall, the students
having a box close by him, he handed the record to us, and he would point
out to us the important issues to be tried. I do not remember that he ever
publicly alluded to our presence
¢ Boswell’s Life of Johnson.
329
CHAP.
XXX,
A.D. 1727
—1730.
He attends
a debating
society.
He “ drinks
cham-
pagne with
the wits.”
His inti-
macy with
Pope.
330
CHAP
XXX.
A.D. 1727
—1730.
REIGN OF GEORGE II.
tryman Lord Marchmont, and a warm and steady attachment
sprang up between them. The young Scot was at first
exceedingly flattered and delighted by the notice of a writer
of such celebrity, whose PasroraLs he had got by heart
when a child, but whom, till he was sent to England, he had
never hoped to behold. Afterwards he had the good taste to
relish the exquisite powers of conversation which the bard
could display in the company of those he liked, and he was
touched by experiencing constant kindness from one who was
disposed to treat nobles and kings with disdain. Pope, on |
the other hand, intuitively discovered the genius of this juve-
vile worshipper, was struck by his extraordinary accomplish-
ments, agreeable manners, ingenuous countenance, and (it is
said), above all, by the silvery tones of his voice, which seemed
then, and ever after, to have doubled the effect of all his
other powers to win his way in the world.* In such favour
was Murray, that when he had adopted the law as his profes-
sion, and he came to reside as a student at Lincoln’s Inn, the
autocrat of the literary world, anxious for his success, actually
undertook to teach him oratory ;— not the composition of
orations, but the varying attitudes and intonation with
which they should be delivered. Murray had frequent in-
vitations to Twickenham ; and Pope, coming to Lincoln’s Inn,
would spend hours in instructing him. One day the pupil was
surprised by a gay Templar, who could take the liberty of
entering his rooms without the ceremonious introduction of a
servant, in the act of practising the graces of a speaker at
a glass, while Pope sat by in the character of preceptor.
Bishop Warburton accounts for the extraordinary marks of
kindness which Murray thus experienced: — “ Mr. Pope
had all the warmth of affection for this great lawyer, and
indeed no man ever more deserved to have a poet for his
friend ; in the obtaining of which, as neither vanity, party,
nor fear had a share, so he supported his title to it by all the
offices of a generous and true friendship.” f
* The fanciful may suppose that their harmony arose from vocal unison.
Dr. Johnson, in his Life of Pope, says, “ His voice, when he was young, was
so pleasing, that he was called in fondness the little nightingale.”
+ Annotations on Pope’s Imitation of the Sixth Epistle of the First Book of
Horace.
LIFE OF LORD MANSFIELD.
Lord Mansfield’s biographers represent him as now making
the “grand tour,” and, from the language they employ, it
might be supposed that he spent several years in wandering
over distant lands and sojourning at foreign courts.* He did
cross the English Channel, but, upon examining dates, it will
be found that his “travels over the continent of Europe ”
shrink into a long-vacation trip to France and Italy, which
most practising lawyers have taken. On the 24th of June,
1730, after keeping Trinity Term at Lincoln’s Inn, he was
present in the schools at Oxford, and, with the usual forms,
received the degree of M.A. On the 23d day of November
following, he was called to the bar in Lincoln’s Inn Hall; and
he probably had returned-some weeks previously, to make
preparations for commencing his professional career.t I
believe there is not extant any account of his adventures —
but thus speculates one author, who would have us believe
that, as Gibbon conceived the plan of his “ Decline and Fall ”
on viewing the ruins of the Capitol, so Murray was first fired
with the ambition of being a great lawyer and orator on
beholding the scene where Cicero had triumphed : —
*“ At Rome Mr. Murray was probably inspired and animated
with the love of Ciceronian eloquence; at Rome he was prompted
to make Cicero his great example and his theme. At Tusculum,
and in his perambulations over classical ground, why might he
not be emulous to lay the foundation of that noble superstructure
of bright fame which he soon raised after he became a member of
Lincoln’s Inn ?” t
I make no doubt that, ever industrious and eager for im-
provement, he turned his jaunt of two or three months to the
best advantage, and that, having introductions to our ministers
abroad and to the most eminent literary characters in the
cities which he visited, he saw, and reflected, and profited
* Lord Brougham describes him as “enjoying all the advantages of a
finished classical education; adding to this the enlargement of mind derived from
foreign travel, undertaken at an age when attentive observation can be accompanied
by reflection.” (Statesmen, i. 100.)
+ “Ata Council held the 23d day of Nov. 1730.,—Ordered that the Hon?!e W™
Murray, Esq*®, one of the fellows of this Society, being of full standing, and
having observed the rules of this Society, and performed all his exercises, be
called to the bar, first paying all his arrears and duties to this Society ; and that
he be published at the next Exercises in the Hall.”
¢ Holliday, pp. 9, 10,
331
CHAP.
XXX,
A.D. 1730.
His excur-
sion to
France and
Italy.
He is
called te
the bar.
332
CHAP:
XXX,
A.D. 1730,
November.
His accom-
plishments
as an ad-
vocate.
REIGN OF GEORGE II.
more in this short interval than the ordinary “sons of earth,”
who waste years on the Continent, chiefly employed in
criticising the performances of opera singers, or in exposing
themselves to ridicule for their determined adherence to
English prejudices and absurdities.
When he put on the long robe, it may be safely affirmed
that there had not hitherto appeared at the English bar a
young man so well qualified by his acquirements to follow
the law as a liberal profession. Without having become a
deep black letter lawyer, he was scientifically familiar with
our municipal jurisprudence, and capable of conquering
any particular point in it which he might have occasion
to encounter. He had made himself acquainted not only
with international law, but with the codes of all the most
civilised nations, ancient and modern; he was an elegant
classical scholar; he was thoroughly imbued with the lite-
rature of his own country; he had profoundly studied our
mixed constitution; he had a sincere desire to be of service
to his country, and he was animated by a noble aspiration
after honourable fame. oF
WESTERN BARBARY, WITH ADVEN-
TURES IN MOROCCO AND AMONG THE MOORS,
By Drummonp Hay. Post 8vo, 2s. 6d:
“A new and highly interesting work.’ — Greenock
Advertiser.
Mediterranean, and Asia Minor.
XXI.
CLASSICAL TOUR IN ATHENS AND
ATTICA, By Rey. C. Worpswortn, D.D. Second Edition.
Plates. 8vo, 12s.; also, FAC-SIMILES OF ANCIENT
WRITINGS on the Watts of Pomprn. Second Edition,
| ByO, 2s. 6d.
Mr. MURRAY’S LIST OF BOOKS.—vVoyages and Traveis.
XXII.
A VISIT TO THE IONIAN ISLANDS,
ATHENS, AND THE MOREA. By Epwarp GIFFARD.
Plates. Post 8vo, 12s.
““ Mr. Giffard’s work is very creditable to its author.”—
Quarterly Review.
XXMI.
TRAVELS IN CRETE.
By Ropert Pasuizy, A.M. Plates. 2 vols. 8yvo, 2. 2s.
eek IY.
AN EXCURSION IN ASIA MINOR.
Including a Visit to several unknown and undescribed
Cities. Second Edition. Plates. Impl. 8vo, 28s. Also,
DISCOVERIES made during a Seconp Excursion. Plates.
Impl. 8vo, 2/7. 2s. Withan ACCOUNT OF THE XAN-
THIAN MARBLES in the British Museum. By S1r
CHARLES FeLtows. Plates. 8vo, 5s-
‘‘Qur author has discovered eleven ancient Lycian cities,
and has allowed the learned world to perceive that Lycia
has a mine of antiquarian treasures, of which he has only
scraped the surface.”’—Atheneum.
XXV.
RESEARCHES 1n ASIA MINOR, PONTUS,
AND ARMENIA; with some Account of the Antiquities
and Geology of those Countries. By W. I. TiAMILTON,
Plates. 2 vols. 8vo, 38s.
“Mr. Hamilton’s archzeological researches, and his nar-
rative in general, have our warmest commendations.”—
Atheneum.
XXvI.
DALMATIA AND MONTENEGRO; witH
A JouRNEY TO MosTaR IN HERTZEGOVINA, AND REMARKS
ON THE SLAvonic Nations. By Sir GARDNER WILKINSON.
Plates and Woodcuts. 2 vols. 8vo.
Egypt and Syria.
XXVII.
TRAVELS IN EGYPT, NUBIA, SYRIA,
AND THE HOLY LAND. By Captains Irey and
Maneues, Post 8vo, 2s. 6d.
«* One of the most interesting and popular works of the
present century.’”’—Aderdeen Journal,
XXVIII.
MANNERS AND CUSTOMS OF THE
ANCIENT EGYPTIANS. By Sm GarpNER WILKINSON.
Third Edition. With 600 Illustrations. 5 vols. 8vo, 4l. 4s.
“Sir Gardner Wilkinson has done more to make the
pecple of the Pharaohs known to us moderns than any
contemporary writer.”—Athenaum.
XXIX,
CAIRO, PETRA, AND DAMASCUS;
frcm Notes made during a Tour in those Countries. By
Joun G. Kinnear. Post 8vo, 9s. 6d.
+: Mr, Kinnear writes extremely well, and his descrip-
tions proclaim him a good observer.” —Hwaminer.
XXX:
ARABIA PETRA, MOUNT SINAI, and
the Excavarep City or Perra,—the Epom of the Pro-
phecies. By M. Leon DE LABoRDE, Second Edition.
With 65 Plates. 8vo,18s.
“A publication of extreme value and interest.”—British
Critic.
“ All ministers and students should possess this vo-
lume,”— Evangelical Magazine.
Polynesia and the South Seas.
XXXI-.
VOYAGE OF DISCOVERY TO THE
SOUTH POLE; 1839—43. By Carr. Sir JAMES CLARK
Ross, R.N. Plates and Maps. 2 vols. 8vo, 36s.
«The extracts we have given will speak better than we
eould for the plain, modest, and manly taste of the author
—which seems entirely worthy of his high professiona)
character and signal services.’—Quarlerly Review,
|
XXXII.
TYPEE AND OMOO ; or, the SOUTH SEA
ISLANDERS: a True Narrative of Real Events. By’
Herman MELVILLE. 2 vols., post 8vo, 12s.
‘The book is excellent, quite first-rate.”"—-Blackwood.
“Since the joyous moment when we first read Robinson
Crusoe, and believed it all, and wondered all the more be-
cause we believed, we have not met with so bewitching a
work as this narrative of Herman Melville’s.”— JohnBull.
XXXII.
RECOLLECTIONS OF BUSH LIFE IN
AUSTRALIA, during a Residence of Eight Years in the
Interior. By Henry Wiii1Am Hayveartu. Post 8yo, 25. 6d.
XXXIV.
A RESIDENCE IN NEW SOUTH WALES,
By Mrs. Merepitu. Post 8vo. 2s. 6d.
“Mrs. Meredith is a pleasant unaffected writer; and
the book derives interest from being a /ady’s view of New
South Wales.”—Spectator.
XXXV-
SOUTH AUSTRALIA; ITS ADVANTAGES
AND ITS RESOURCES. A Description of that Colony ;
and a Manual of Information for Emigrants. By GEORGE
Wiixinson, Esq. Map. Post 8vo, 10s. 6d.
XXXVI.
NEW ZEALAND. With some Account of
the Beginning of the British Colonization of the Island.
By E.J. WAKEFIELD. With Map. 2 vols. 8vo, 28s.
“‘The most complete and continuous history of
British Colonizationin New Zealand which has appeared.
—Spectator.
XXXVII.
TRAVELS IN NEW ZEALAND,
By Routes through the Interior, with the Natural His-
tory of the Islands. By E, Dizrrenpacy, M.D. Plates.
2 vols. 8vo, 24s.
Central and South America.
XXXVIII.
INCIDENTS OF TRAVEL IN CENTRAL
AMERICA. 78 Engravings. 2 vols. 8yo, 32s. Also, a
| SECOND VISIT TO YUCATAN. By Joun L. STEPHENS.
120 Engravings. 2 vols. 8yo, 42s.
“These delightful volumes! It is grievous to quita store
so brimful to overflowingof what we like best.”—Alhenaum
5. APS :
ADVENTURES IN MEXICO, and amone
THE WILD TRIBES AND ANIMALS OF THE Rocky Moun-
TaIns. By G. F. Ruxton. Post 8vo, 6s. :
“Mr. Ruxton’s Adventures is a capital book, alike
attractive for its narrative of travel with its hardships
and incidents, for its pictures of scenery and society, for
the direct information it imparts as to Mexico and the
incidental glimpses it gives us of the Americans and thei
armies in Mexico.”—Spectator.
>} ie ;
JOURNEYS ACROSS THE PAMPAS. B
Sr Francis Heap. Post 8yo, 2s. 6d.
‘‘This book has all the interest of a novel.””—Eclecité
Review.
XL -
JOURNAL OF A PASSAGE FROM TH
PACIFIC TO THE ATLANTIC, crossing the Andes i
the Northern Provinces of Peru, and descending the grea
River Maranon. By Henry Lister Maw, R.N, 8vo,1
XLII. ;
VOYAGE OF A NATURALIST ROUN
THE WORLD. By CuHartes DARWIN. Post 8vo, 8s.
«The author is a first-rate landscape painter, and t
dreariest solitudes are made to teem with interest.”
Quarterly Review. :
XLUIL
A VOYAGE UP THE RIVER AMAZO
AND A VISIT TO PARA. By Wiiziam H. Epwar
Post 8vo, 2s. 6d.
‘¢ Pull of novelty; we can hardly open a page which
not its picture for the general observer, and its produ
for those who, like Sir Joseph Banks, look on the ea
as one vast museum.”’—Atheneum.
Mr. MURRAY’S LIST OF BOOKS.—voyages and Travels.
5
Se rere ea A ee eee
Worth America.
XLIV.
ARCTIC VOYAGES OF DISCOVERY.
From 1818 to the present time. By Sim Jonn Barrow.
Portrait and Maps. 8yo, 15s. ;
“A book to make one proud of the name of Englishman,
It is a record of enterprise and endurance, of resolute
perseverance, and of moral and physical courage, which
we take to be peculiar to English seamen.”—Ewaminer.
XLY.
TRAVELS IN NORTH AMERICA, with
Geological Observations on the United States, Canada,
and Nova Scotia. By Cuartes Lyeii, F.G.S. Plates.
2 vols. post 8vo, 21s.
‘*Mr. Lyell visited America not merely as a man of
science or a philosopher, but as a man of sense and of
the world, eminently imbued with qualifications to con-
stitute him an astute observer.” —Literary Gazette.
XLVI.
FOREST SCENES AND INCIDENTS IN
CANADA. By Sir Georce Heap. Second Edition.
Post 8vo, 10s.
XLVI.
LETTERS FROM CANADA AND THE
UNITED STATES. By J.R.Gopixy, 2 vols. post 8vo, 16s.
“Here is at least one English book of which the
Americans cannot reasonably complain.’— Atheneum.
XLVIII.
MEMOIRS OF A CHURCH MISSIONARY
IN CANADA, By Rey, J. Apporr. Post 8yo, 2s, 6d.
“The little work before us is a genuine account of what
a missionary’s life isnowin Canada. Under an invented
name, it is the story of the writer’s own experience, told
in a straightforward and unaffected manner, with consider-
able power of description.”—Guardian.
XLIX,
TOUR THROUGH THE SLAVE STATES,
from the River Potomac, to Texas and the Frontiers of
Mexico. By G. W. FeatuersToNHAuGH. Plates. 2 vols.
8y0, 26s.
““¥he notices of the natural history, and the mines,
are novel and interesting ; and his pictures of the heroes of
the bowie knife are remarkabiy characteristic and enter-
taining.”’—New Monthly Magazine.
L.
" EXCURSIONS IN NEWFOUNDLAND.
The Cod Fishery—Fog Banks—Sealing Expedition, &c.
By J.B. Jukes. Map. 2 vols. post 8vo, 21s.
LI.
VOYAGE TO TEXAS AND THE GULF OF
MEXICO, By Mrs. Hovusroun, 2 vols. post 8vo, 21s.
“The information contained in this admirable work
will be very important to those who hayean idea of settling
abroad.”’—Times.
LU.
THE JOURNAL OF A WEST INDIAN
PROPRIETOR, with an Account of Negro Life and
Manners. By M. G, Lewis, Post 8vo. 2s. Gd.
“These amusing stories of actual Jamaica life.’—
Quarterly Review,
Europe.
LITT.
DATES AND DISTANCES ;
Showing what may be done in a Tour of Sixteen Months
upon the Continent of Europe. Post 8vo, 8s. 6d.
nv.
_ RUSSIA AND THE URAL MOUNTAINS ;
Geologically Illustrated. By Sm R. Murcurson, G.C,.S,
Coloured Maps, Plates, &c. 2 vols. royal 4to.
' **Many admirable memoirs have resulted from these
excursions ; but the crowning triumphis the great work
before us. It is impossible, by extract, to convey an idea
of the value of its contents.”’—Atheneum,
LY.
DOMESTIC MANNERS OF THE RUSSIANS.
escribed from a Year’s Residence in that Country. By
ey. R. L, VENABLES, M.A, Post 8y0, 9s, 6d.
‘ new matter.
LVI.
RUSSIA UNDER NICHOLAS.
Translated from the German. By Captain ANTHONY C,
STERLING. F cap. 8vo, 5s.
Lively and comprehensive.”—Atheneum,
LVII.
LETTERS FROM THE BALTIC.
By A Lavy. Post 8yo, 2s. 6d.
**A series of charming descriptions, The style is full
of ease and freshness,”—Ewaminer,
LVIII.
NORWAY AND HER LAPLANDERS ;
With Hints to the Salmon Fisher. By JoHn Mixrorp.
8vo, 10s. 6d,
‘* A pleasant book, on a very pleasant subject : the obser-
vation of an accomplished and good-natured man,?’—
Examiner.
LIX.
THE CITIES AND CEMETERIES OF
ETRURIA. The result of several Tours made for the
purpose of investigating the extant antiquities of Etruria.
By Georges Dennis. Map and Illustrations. 2 vols, 8yo.
LX,
THE BIBLE IN SPAIN;
Or the Journeys, Adventures, and Imprisonments of an
Englishman in an Attempt to circulate the Scriptures
in the Peninsula. By Gores Borrow. New Edition.
Post 8vo, 6s.
“‘Mr. Borrow has come out as an English Author of
high mark, We are reminded of Gil Blas, in the narratives
of this pious, single-hearted man.” —Quarterly Review.
LxI.
THE GYPSIES OF SPAIN;
Their Manners, Customs, Religion and Language.
By Georce Borrow. New Edition. Post 8vo, 6s.
‘*A curious, a very curious work, aud contains some of
the most singular, yet authentic descriptions of the gipsy
race which have ever been given to the public.”"—Literary
Gazette,
LXII.
GATHERINGS FROM SPAIN. Being Ex-
tracts from the Hand-book of Spain. With much
By Ricuarp Forp, Post 8yo, 6s.
**The best English book, beyond comparison, that ever
has appeared for the illustration, not merely of the gene-
ral topography and local curiosities, but of the national
character and manners of Spain.”—Quarterly Review.
DXUuI,
PEDESTRIAN WANDERINGS wn cue
FRENCH AND SPANISH PyRENEES. By T, Cuirron Panis.
Woodcuts. Post 8vo, 10s. Gd.
“Contain better descriptive passages, strikingly pic-
turesque, and without the least strain and effort, than we
recollect in any book of the same light pretension,’?—~
EKvaminer.
LXIV.
PORTUGAL AND GALLICIA,
From Notes made during a Journey to those Countrics.
By Lorp Carnarvon, Third Edition. Post 8yo, 6s.
“This is a very remarkable work. It is not only a
graphic description of the face of the country, and an im-
partial and sagacious account of the moral and political
condition of Spain and Portugal; but it relates also a series
of personal adventures and perils, very unusual in modern
Europe; and which, while they do honour to the spirit
of him who sought information at such risks, exhibit more
of the real state of the Iberian Peninsula than could have
been obtained by a less ardent and less intrepid inquirer.”
—Quarterly Review.
LXV.
TOUR IN AUSTRIAN LOMBARDY,
TYROL, AND BAVARIA, By Joun Barrow. Wood-
cuts. Post 8vo, 10s. 6d.
‘* Agreeably written, faithful and minute.”—Athenaum
LXVI.
NARRATIVE OF TRAVELS IN AUSTRIA.
With Remarks on the Social and Political Condition of that
Country. By P. E. Turnsuny, 2 yols, 8yo, 245.
6
Mr. MURRAY’S LIST OF BOOKS.—Hand-Books,
a al ane ae eR
HAND-BOOKS FOR TRAVELLERS,
Giving detailed and precise Information respecting Steamers, Passports, Moneys, Guides and Servants,
with Directions for Travellers, and Hints for Tours.
1.
HAND-BOOK OF TRAVEL-TALK ; or, Con-
versations in English, German, French, and Italian.
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« 0
Burr on Surveying . 5 °
Buttman’s Works . 5
Buxton’s (Sir Fowell) Memoirs ore
Byron's (Lord) Life and Works
CAMPBELL’s British Poets .
—— Lord Chancellors
Careme’s Cookery : > ae
Carmichael’s Greek Verbs ° .
Carnaryon’s Portugal 4 :
Charmed Roe . : ’ ° ;
Clark on Climate A 5 oe)
Coleridge’s Greek Poets .
Colonial and Home Library 2 5
Colquhoun’s Moor and Loch . °
Comber’s Advice to Catholics
Crabbe’s Lifeand Poems
Croker’s England, and Geography .
_ Boswell’s Johnson . ‘
Cunningham’s Poems é Avec
Dares and Distances ee .
Darwin's Natural History Res
Dennis’ Cities of Etruria : .
De Vere on Ireland : é .
Dieffenbach’s New Zealand f
Domestic Cookery . . . .
Douglas on Naval Gunnery .
Drinkwater'’s Siege of Gibraltar
Drummond on Religion ' °
Dudley’s (Lord) Letters
Durham’s (Admiral) Life :
EasTLAKE on the Fine Arts.
Education, Minutes
Edward's Voy age up the Amazon
Eldon’s (Lord) Life A
Elphinstone’s India .
Ellesmere’s (Lord) Vienna ,
English Hexameters . .
Facts in Various Sciences °
Fairy Ring (The) . A °
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Family Receipt-Book.° . aS ale!
Faraday’s Manipulation . 5 Apu
Farmingfor Ladies . . - » 14
Father Ripa’s China “ . a8
Featherstonhaugh’s America , . 5
Fellows’ Travels : * SGP Ss
Fergusonon Women . . coat
Field Sports of France . se bs
Fisher’s Geometry and Algebra a”
Ford’s Spain r . ches)
Fortune’s China. : ‘ beasts!
French in Algiers . 5 5 12
Fullarton on Currencies . ei it
GeroGRAPHICAL Journal A 12
Giffard’s Ionian Islands . re a
Gladstone’s Family Prayers . wd)
— Jewish Disabilities . 14
Gleig’s Battle of Waterloo eee
— Life of Lord Clive . 2
— Washington 12
INDEX.
Godley’s Canada aS BET
Gooch on Women . ° .
Gordon’s German Life 5 eee:
Gospel Stories for Children . - 9
Grant’s Nestorians . . ee
Gray on Prison Discipline .
Grote’s History of Greece . cue ek
HALFORD’s Essays . . .
Hallam’s Histories .
Hamilton’s Hindostan 4 oimantanes
Asia Minor . 4 rhe |
Aristophanes . ete
Hand-books for Travellers . pie
Hawkstone, a Tale *
Hart’s Army List . . °
Hase’s Ancient Greeks ; a5
Hay’s Morocco . .
Haygarth’s Life in the Bush
Head’s (Sir F. B.) Travels
(Sir G.) Travels . *
Heber’s Sermons 5 .
India 5 5
Poetical Wor ks Ae
Heryey’s (Lord) Memoirs . .
Highland Sports é ° :
Hill’s (Lord) Life ° .
History ofthe late War. mag
Holland’s Psalms and Hymns .
Hosking on Buildings . ° mre
Houstoun’s Texas . : : ‘
Hook on Education une
Three Reformations “
Humboldt’s Cosmos . 5 600
{rpy and Mancurs’ Travels . 6
JAmEsoN’s Public Galleries ay
Japan.
Jesse’s Natural History, "&e. ‘9 and 2
Jesuits (Fall of ) ‘ é a8
Jocelyn’s (Lord) China . 4 ono
Jones on Wealth . P 5
Journal of a Naturalist . -
Jukes’s Newfoundland c Ark ai
IKINNEAR’s Cairo . . 5 er:
Currency 14
Kugler’s Painting : <6 ‘and li
LAsorDE’s Arabia Petrea . . 4
Lambert’s Needlework Books rates
Layard’s Nineveh . r . era!
Letters from Madras . A
the Baltic . Pt Bohs
Lewis on Dependencies °
Negro Life . . bis
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— Romance Languages 10
Lindsay’s Christian Art . at oie
— Antagonism , c 5 lp}
Little Arthur’s England . eee!)
Livonian Tales . : ° - 12
Loch’s China . é RS:
Lockhart’s Life of Burns . ers
Spanish Ballads . eins
Long's Essays. : he
Loudon’s Gardening and Botany 14
Natural Histor Via .
Lowe’s (Sir H.) Memoirs . °
Lyellon Geology . 5 .
North America .
Manon’s (Lorp) Histories
Condé and Belisarius
Malcolm’s Persia ‘ .
Manning on the Church .
Mantell on Animalcules ?
Manual of Family Prayers ,
Markham’s (Mrs.) Histories .
Sermons
Markland’s English Churches
Marryat on Pottery . : ;
Martineau’s Holy Land . :
Matthiw’s Greek Grammar
Maw’'s Maranon ‘ = .
Mayo on the Mind ‘
Melville’s South Seas . e
Meredith’s New South Wales
Merrifield on Ancient Painting .
Milford’s Norway . . 4
Milman’s Histories . é A
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Milman’s Life of Gibbon .
Poetical Works
— Horace Ras
_ Wayside Cross
Missionary in Canada ‘
Mitchell’s Aristophanes
Moore’s Life of Byron °
Muck Manual for Farmers
Muller’s Dorians
Murchison’s Geology of Russia _
Nautica Almanack, °
Navy List .
Neale on Feasts and Fasts
Newbold’s Malacca. 3
Newton’s (Sir Isaac) Life .
Nimrod on the Chase
O’Byrne, Naval Biography
Oxenham’s Latin Elegiacs
Paris’ Pyrenees :
Parry’s Parliaments °
Pashley’s Crete . ° .
Peel on Bank Charter .
Peile’s Aschylus .
Pellew’s Cathedral Sermons
Pennington on the Greek
Penn’s Maxims and Hints
Phillips’ Geology of Yorkshire
Philosophy in Sport . °
Pitt and Peel Policy
Porter’s Progress of the Nation,
Prayer-Book Illuminated .
Puss in Boots . “ -
QUARTERLY Review ,. ’
RANKE’s Histories. °
Rejected Addresses . .
Remarkable German Trials
Ricardo’s Political Works .
Ride to Florence
Robertson’s (Lord) Poems
Romaunt Version of Gospel
Romilly’s (Sir Samuel) Life
Ross’s (Sir James) Voyage
Royal Society of Literature
Rundell’s Domestic Cookery }
Ruxton’s Mexico 5
SALE’s (Lady) Journal .
Brigade . ‘
Schroeder’s Mediterranean
Scrope’s Deer Stalking and Fishin
Sentences from the Proverbs .
Sewell on Christianity :
Shaw’s nglish Literature
Sikhs and Affghans .
Sidmouth (Lord) Life of
Smith’s Classical Dictionaries
(Dr. W.) Life 5
Somerville on Science
Physical Geography
Southey’s Book of the Church
Life of Dr. Bell
Staunton’s China
Stephens’ Central America.
Sterling’s Russia ‘ .
Strong’sItalianSonnets .
Sydenham’s (Lord) Memoirs
.
.
Cromwell and Bunyan
.
Tarr’s Theological Suggestions
Talbot on Etymologies
Taylor’s Essays . 5 °
Thornton on Ireland .
Turnbull’s Austria . Fy
Twiss’s Lord Eldon . °
VAUGHAN'Ss Sermons A
Venables’ Russia > “
Visitation Sermons
Watt’s(J.) Lifeand Correspond. 2&1L
Wakefield’s New Zealand
Wilkie’s (Sir David) Life
Wilkinson’s Egypt .
Dalmatia .
Geology .
South ‘Australia |
Wood’s Source of the Oxus
Wordsworth’s Athens
« Latin Grammar
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