YALE UNIVERSITY LIBRARY a. MEMOIRS OF THE RIGHT HONOURABLE HENRY LORD LANGDALE. By THOMAS DUFFUS HARDY. IN TWO VOLUMES. VOL. II. r- LONDON: RICHARD BENTLEY, NEW BURLINGTON STREET, $u&lisi)et in ©tUmarg to Wet JWaiostg. 1852. LONDON : Printed by Sajidei Bentiey and Co.. Bangor Houeo, Shoe Lane. CONTENTS OF THE SECOND VOLUME. CHAPTER I. i Lord Langdale in the House of Peers. — Takes charge of various im portant Bills. — His independent Course. — Memorandum on Law Taxes ...... . . CHAPTER II. Lord Langdale's Speeches— On the Borough Courts Bill — On the Bill to authorize Parliamentary Publications — On the Courts of Chan cery Bill — On the Attorneys' and Solicitors' Bill — On the Conveyance and Landed Property Bill — On the Townshend Peerage Bill — On the Common Law Courts Bill — On the Taxing Masters Bill — On the Parliamentary Proceedings Bill — On the Vice-Chancellor's Bill . 17 CHAPTER III. Lord Langdale's last Speech in the House of Lords. — On tlie County Courts Bill. — His power as a Public Speaker. — His personal appear ance ......... 40 CHAPTER IV. Lord Langdale on the Bench. — His unremitting attention to his Duties. No private matters suffered to interfere. — His Remarks on " the Dignity of the Court." — Disapproves of Vacations. — His anxiety to render assistance to the Chancellor . . . . .49 IV CONTENTS. CHAPTER V. PAGE Conduct as to complaints against Officers of his Court. — Hatred of Trickery. — Anecdote. — High moral tone and decorum of the Rolls Court. — His indignation at any unfair mode of conducting a Cause. — His Judgments commonly written out by his own hand. — His con duct in Consent Cases. — His confidence in the statements of Council. — His wish to decide according to the Letter of the Law . . .63 CHAPTER VI. His readiness to allow of Appeal from his Decisions. — His opinion on the Admissibility of the Evidence of an interested Witness. — Reflec tions on the subject. — His acquaintance with Civil and Canon Law and Continental Codes. — Remarks in the case " Nelson v. Bridport." — Attendance at the Sittings of the Judicial Committee of the Privy Council . . . . . . . .75 CHAPTER VII. Opinions of Lord Langdale on various subjects. — Anecdotes . 90 CHAPTER VIII. The Public Records.— Their antiquity, importance, and numbers. — Appointment of various Record Commissions. — Their mismanagement. — House of Commons Committee on the subject. — Lord Lanodale takes temporary charge of the Record business. — The Commission suffered to expire. — The Public Records Act passed . . .111 CHAPTER IX. Lord Langdale labours to carry the Record Act into execution.— Deputy Record-keeper appointed. — Lord Langdale's views for the management of the Record Service ..... 120 CONTENTS. CHAPTER X. PAGE State of the Record Service before the passing of the Act. — Enormous Fees. — Defective Calendar. — Lord Langdale Reduces the Fees, and forwards the formation of New Calendars. — General Index in progress. — Difficulties and Obstructions ..... 143 CHAPTER XI. Lord Langdale's exertions to procure the Erection of a General Record Repository. — The Victoria Tower plan. — Found to be unsuit able . ........ 159 CHAPTER XII. Further Correspondence with the Government. — A New Building at last determined on. — Commenced. — Lord Langdale's Retirement. — Address of the Record-Keepers ..... 183 CHAPTER XIII. Lord Langdale as a Trustee of the British Museum. — Meets with an Accident there. — Appointed one of the Commissioners of Inquiry. — His suggestions for their Report. — Surreptitiously Printed.— Sugges tions as to the Department of Printed Books. — Refuses to Sign the Report of the Commissioners. — His Opinion of the British Museum as a whole . . . • • • • .194 CHAPTER XIV. The Registration Question. — Early Acts on the subject. — Select Committee of 1832.— Mr. Bickersteth's Evidence.— Lord Langdale is placed at the head of the Registration and Conveyancing Commission. —Their Report on Registration ..... 212 VI CONTENTS. CHAPTER XV. Lord Langdale's Evidence before the Select Committee ofthe House of Commons on Fees in Courts of Law and Equity. — His strong Opi nion against the Receipt of Fees.'— Thinks a vigilant supervision of Public Oflicers necessary. — Recommends the Appointment of a Minis ter of Justice ........ 224 CHAPTER XVI. Illness of the Lord Chancellor.— Speech of Lord Langdale on the subject. — The Chancellorship pressed on Lord Langdale. — Declined by him. — Becomes Deputy Speaker of the House of Lords. — Memoir of Lord Cottenham. — The Great Seal again put in Commission. — Lord Langdale Chief Lord Commissioner. — Record of the Sittings of the Commissioners. — the new Chancellor ..... 238 CHAPTER XVII. The Gorham Case argued before the Committee of Privy Council. — The Judgment drawn up and delivered by Lord Langdale. — Unjus tifiable comments thereon. — Extracts from Lord Langdale's Notes . 269 CHAPTER XVIII. Historical Sketch of the Articles and Liturgies in England . . 29-2 CHAPTER XIX. The Sequel to the Gorham Case ..... 316 CHAPTER XX. Lord Langdale's disposal of his patronage. — Mr. Sanders. — Mr. Le Dieu.— The Deputy Keepership of the Records.— The Taxing Masters. CONTENTS. vi 1 PAGE — The Six Clerks. — His intercourse with the Author. — His private life. — Love of Children. — Kindness to his dependants. — Keen sense of honour ......... 325 CHAPTER XXI. Failing health of Lord Langdale. — He retires from the Bench. — Paralytic seizure. — Death. — The truth his best-epitaph . . 345 APPENDIX. Lord Langdale's Judgment in the Suit of the Duke of Brunswick v. the King of Hanover, delivered 13th January, 1844 . . 361 Lord Langdale's Judgment in the Suit of Whicker v. Hume . 400 Extract from Lord Langdale's Judgment in the Suit ofthe Attorney- General v. Caius College, Cambridge ..... 414 &t<4^ -teAtij2^y C-JiATsl/U?fl~, __ all I know to the contrary, more just. The returns which are preparing of the public pro perty under the care of the late Record Commission will, I hope, be ready in the course of to-day or to-. morrow. I remain, &c, Langdale. S. M. Phillipps, Esq." 118 MEMOIR OF HENRY LORD LANGDALE. The following answer was immediately returned : — H. O., March 5th, 1838. " My dear Lord, "Lord John Russell regrets that there is anything in the course he has taken which can be thought harsh, or as an imputation on Mr. C.'s character. Lord John had not the least idea of conveying any censure, or urging anything painful to Mr. C. He has desired me to enclose a copy of the letter sent to Mr. C, in case you have not seen it. The reason why Lord John did not make any suggestion as to a resignation was, that Mr. C. has had ample time for resigning, if that was his wish; and Lord John thought that, as the Com mission is at an end, there was nothing to resign. I trust you will consider this explanation satisfactory, and you are at liberty, if you think it necessary, to show it to Mr. C. I am, my dear Lord, yours truly, S. M. Phillipps." Shortly after, the sum of 5000/. was granted, to enable the necessary business connected with the care of the records to be carried on under Lord Lang dale's direction, but " entirely disapproving of the present uncertain and provisional mode of conducting the business," which he saw was productive of much uneasiness, and even distress, to some persons engaged in the service, he ceased not to urge the preparation of some permanent plan; and at length, in June, 1838, a bill on the subject was drawn by Mr. Drinkwater MEMOIR OF HENRY LORD LANGDALE. 119 Bethune, and submitted to him; it appeared, however, very doubtful if the Government were even then seriously bent on bringing the matter to a close, and when he came to examine the bill, he found many clauses of which he disapproved. He complained of this in a letter to Sir R. M. Rolfe, the Solicitor-General, the clauses were modified, and the Bill received the Royal assent on the 14th of August, 1838. 120 MEMOIR OF HENRY LORD LANGDALE. CHAPTER IX. LORD LANGDALE'S LABOURS TO CARRY THE RECORD ACT INTO EXE CUTION. DEPUTY RECORD -KEEPER APPOINTED. LORD LANGDALE'S VIEWS FOR THE MANAGEMENT OF THE RECORD SERVICE. Lord Langdale now found himself charged with va rious onerous duties, but without being provided with either the powers or the funds necessary to execute them, which obliged him to address Lord John Russell as follows : — South Street, August 17th, 1838. " My Lord, " I have the honour to address your Lordship on the subject of the Public Records Act, 1 and 2 Vict. c. 94. I shall not for some time be able to submit to your Lordship's consideration the details of a general plan for the future management of the Records, but there are some matters connected with the subject of such immediate importance, that I hope your Lordship will excuse me for requesting your attention to them without delay. 1. Your Lordship will be aware that I cannot pro ceed to carry the Act into execution without first ap pointing a Deputy Keeper under the fifth section of the Act; and that as the Act does not fix the salary MEMOIR OF HENRY LORD LANGDALE. 121 which that officer is to receive, it will not be in my power to propose to any one to accept the office until I am informed what remuneration is to be allowed to him, 2. The Act (section 8) requires that as soon as may be after the appointment of a Deputy Keeper, a Public Record Office shall be established; and I beg leave to suggest, that a place should be appointed where there may be in regular attendance an officer competent to give information to every inquirer respecting records; to point out where they are to be found ; how access is to be had to them ; what, if any, fees are payable for searches and copies, &c. Such a centre of information would afford a public convenience which would be imme diately and very sensibly felt; and it will become abso lutely necessary during the progress of the removals which must take place before a final classification can be made. The utility of the office would be very greatly in creased if it could be established in a house fit to hold the arranged and most useful Records which are now deposited in different places remote from each other, and also fit to receive, when in proper order, such other Records as may from time to time be cleaned, repaired, and arranged, and thought proper to be there placed. A nucleus for the General Repository which is aimed at would in this manner be at once obtained, and the public would with very little delay obtain no inconsider able part of the benefit which such General Repository is justly expected to afford. The Rolls House in Chancery Lane is in the situation 122 MEMOIR OF HENRY LORD LANGDALE. which, of all others, would be most convenient for this purpose, and it is sufficiently large to receive probably all the Records of the class to which I refer. The rooms which might be so applied are now occupied by Queen's Bench Records of comparatively small utility, and which (with many others now dispersed in various places) might, without any inconvenience beyond the expense, be removed to the Tower. But I do not know whether the house is, as to security from fire and other circumstances, in a fit state to make it a safe and proper place of even temporary deposit for the most valuable Records ; and I therefore suggest that a surveyor ought to be employed to examine the house very carefully with a view to ascertain whether it is safe, or can at a mode rate expense be made so. If the Rolls House is not or cannot be made proper for this purpose, I submit to your Lordship that some other building which may be made proper ought to be provided. 3. It is of very great importance to save from de struction or embezzlement, a large quantity of Records which are now without proper protection. Amongst these are the Welsh Records, which, by the Act 11 Geo. IV. & 1 Wm. IV. c. 70, s. 27, are left in the posses sion of the same persons who held them at the time when that Act was passed. I have reason to believe that these Records are greatly neglected, but I have not been able to obtain any accurate information concern ing them, and I beg leave to suggest that they ought to be surveyed by some competent person, for the purpose of ascertaining in what state they are, and how far it may be proper or expedient to remove them to London ; MEMOIR OF HENRY LORD LANGDALE. 123 and, if so, what would be the probable expense and the best means of removing them. These are the matters which appear to me to require the earliest attention. I forbear for the present to men tion any others ; and I beg the favour of your Lordship to inform me whether I may, with your Lordship's ap probation, apply to the Lords of the Treasury respecting the salary of the Deputy Record-Keeper, and the expense which may be incurred by acting upon the suggestions mentioned in this letter. I have the honour to be, your Lordship's most obe dient servant, Langdale. The Right Honourable The Lord John Russell, &c" Lord Langdale also wrote to the Lords of the Trea sury, and endeavoured to ascertain their views as to the salary to be given to a Deputy Record-Keeper, and on other matters of finance; he further wrote to Lord John Russell as to the question of the expenses of carrying the Act into execution : — South Street, August 25th, 1838. " My Lord, " I have received your Lordship's letter of yesterday's date, and until I have the honour of hearing from your Lordship again, I shall abstain from taking any steps by which expense may be incurred for carrying the Public Records Act into execution. I beg leave to observe that I have no further stated the details of a plan for the future management of 124 MEMOIR OF HENRY LORD LANGDALE. the Records than as I have mentioned some particular things which appeared to me to require immediate at tention. The details of a general plan will require more consideration, and cannot be proposed without more time for obtaining information, for consulting with others, and for reflection, than has hitherto been afforded to me. If, as I incline to think, I have committed an error in requesting your Lordship's attention to some particulars before the outline at least of a general plan was presented to you, I must beg you to excuse it, and to attribute the mistake, if such it be, to my earnest desire that something which I consider to be clearly beneficial to the public should be done without delay. I hope it may be understood that I wish neither to withdraw from any responsibility which the Act imposes on me, nor to form or execute any plan which does not meet with the approbation of your Lordship, and that I do not mean to direct anything which may occasion expense to be done without having the distinct autho rity of Government for the purpose. I must, therefore, take the liberty of reminding your Lordship that the 5000/. granted for the Record service, suffices only for the works which used to be carried on under the direction of the Commission, that it allows nothing for the expense of the Record Offices now for the first time placed under my superintendence, and nothing for the additional expense which must be occasioned by the establishment and execution of a new system. The Act itself is silent as to the expense of carrying it into execution, and the consequence is, that as to any mate rially useful results, it must, at least to a considerable MEMOIR OF HENRY LORD LANGDALE. 125 extent, remain a dead letter till the expense of executing it in the manner required for the public service is pro vided. I respectfully submit to your Lordship that the most advisable course will be for the Government to limit an annual sum for the whole Record Service contemplated by the Act, including the works heretofore carried on by the Commission, the expense of the offices now placed under my superintendence, and the expense of establish ing the new system. In considering the sum to be allowed, regard will of course be had to the extent and importance of the work, which are greater than persons who have not minutely attended to the subject are apt to think ; but whatever the sum may be, it will be my duty to see that the most of it is made for the public service; and the sum being limited by the Government, I apprehend that it would be proper for me to submit an estimate of its appropri ation, either to your Lordship or to the Treasury; and if this were approved of, or modified after due considera tion, the work might proceed steadily on that plan, until experience should suggest improvements. If this mode of proceeding should be approved by your Lordship, I shall be content to suspend any active proceedings until it is determined what sum is to be provided for this service. If any other course should appear more convenient to your Lordship, I shall wil lingly use my best endeavours to act according to your Lordship's views. I have the honour to be, my Lord, your Lordship's most obedient servant, Langdale." 126 MEMOIR OF HENRY LORD LANGDALE. It was not, however, until October 23rd, 1838, that the Lords of the Treasury gave an answer, fixing the appropriation of the sum of 1250/., which still remained of the grant of 5000/., and stating that they considered 600/. a year, to be increased to 700/. after five years' service, and to 800/. after ten years, a suitable salary for the Deputy Record-Keeper. Sir Francis Palgrave, the Keeper at the Chapter House, whose office was to be abolished, was the person chosen for the office. After some difficulty on the score of compensation for his ser vices under the Record Commission, which the Treasury refused to allow, and which entailed a heavy correspon dence on Lord Langdale, Sir Francis was admitted to the office, Dec. 14th, 1838. About the same time, although an attempt had pre viously been made to withdraw him from his temporary employment, Mr. Thomas was appointed Secretary of the Records, in consequence of the warm recommendation of Lord Langdale. Soon after the nomination of the Deputy Keeper, and before the establishment of the new office, Lord Langdale addressed the following letter to Lord John Russell, then Secretary of State for the Home Department, in which he submitted his views for the management of the Public Records. South Street, Jan. 7th, 1839. " My Lord, "1. Having consulted Sir Francis Palgrave, the De puty Keeper of the Records, and received his advice and assistance as to the measures which ought to be MEMOIR OF HENRY LORD LANGDALE. 127 adopted for the future management of the Records which are placed under my authority by the statute 1 & 2 Vic. c. 94, I have now the honour to lay before your Lordship my views upon the subject. 2. I do not trouble your Lordship with any descrip tion of the Records, or of the condition in which they now are, but assuming that the information afforded by the Reports and documents which have been laid before Parliament, sufficiently prove the necessity of adopting some such measures as are now proposed, I proceed at once to the consideration of what ought to be done. 3. The Records have justly been called the Muniments of the Kingdom, and the People's Evidences ; and they ought to be kept and managed under such arrangements as may afford to the public the greatest facility of using them that is consistent with their safety. The public ought to have access to them for the purpose of easily obtaining information upon the subjects to which the Records relate, and ought to be enabled easily to obtain authentic copies of all documents which can be adduced as evidence, in the establishment or defence of rights which are at issue, in the course of judicial and Parlia mentary proceedings. And, as to all the Records to which recourse may be required for the due transaction of the business of the courts of law, or of the public offices, such a plan of management ought to be adopted as may afford every practicable facility for the transaction of the business in the course of which they are required. 4. The Select Committee of the House of Commons on the Record Commission, by their Report, made in August, 1836, p. 39, and the late Commissioners, by 128 MEMOIR OF HENRY LORD LANGDALE. their Report to the late King, dated in February, 1837, pp. 13, 14, have respectively recommended that a new edifice should be erected for the reception of the Re cords. And I beg leave to state to your Lordship, that, after the most careful consideration, it appears to me, that, for the purpose of keeping the Records safely, and managing them effectually for the public service, it is necessary to provide a General Repository, consisting of a fire-proof building, sufficiently extensive, and in a central and convenient situation. With such a building, all the Records may be arranged in a regular and sys tematic order ; the plan of management may be con sistent and uniform, the number of officers required may be reduced to the lowest amount, the works to be per formed may be carried on under the most effective inspection, and public convenience and economy would be equally consulted. Without such a building, the Records must remain in several different places of de posit ; and many of the inconveniences now justly complained of cannot be removed. 5. I therefore submit to your Lordship that a General Repository for Records ought to be provided, under the 7th section of the Act, without any unnecessary delay. The Rolls Estate affords a most convenient situation for the purpose, and is, also, the most convenient situation for the offices which are now wanting for the different courts of justice: and it is of very great importance to have the judicial Records contiguous to the law offices. 6. As a considerable time must elapse before the General Repository can be prepared and fitted up, I do not trouble your Lordship with any details of the plan MEMOIR OF HENRY LORD LANGDALE. 129 of management which ought to be adopted after the building shall be erected; but I have very carefully con sidered the subject with reference to the provisions which ought to be made for the intermediate care and management of the Records. 7. The objects of such intermediate care and manage ment are, — 1. To secure, as far as possible, the safety of the Records. 2. To adopt such arrangements as will, to the greatest practicable extent, facilitate the ultimate classification of the Records in the General Repository, when provided. 3. To afford to the public, as soon as possible, all the benefits which, prior to the establish ment of a General Repository, can be derived from a simple and uniform plan of management. 8. When it is considered that the London Records, which are specifically mentioned in the Act, are, exclu sively of minor places of deposit, dispersed in large col lections in the Tower of London, in Chancery-lane, in Lincoln's-inn and the Temple, in Somerset-house, in Carlton-ride, Whitehall-yard, Spring-gardens, New Pa lace-yard, and the Chapter-house; that Records of the same kind, and forming different parts of the same series, are sometimes found in two or more of these places ; that in some of them there is no regular attend ance of any officer, that different regulations prevail in the several offices, and that there is no general reper tory or catalogue of the Records, — it may easily be seen what difficulties are opposed to any search for docu ments, and particularly to the search for such as may not be in the most ordinary and frequented route of inquiry. VOL. II. K 130 MEMOIR OF HENRY LORD LANGDALE. 9. The measures which I have to propose are sug gested with the views, — 1. Of affording to the public a great additional facility in the use of the Records, and — 2. Of preparing the Records for their reception in the General Repository, when provided. 10. And with these views I have to submit to your Lordship that, in pursuance of the 8th section of the Act, a Public Record Office ought to be immediately established at the Rolls House, and that the Deputy Keeper of the Records should attend there, and have such competent assistance as will secure the constant attendance, during office hours, of some officer who shall be enabled to give to any applicant the information which he may require respecting any Records comprised in the Act; to say where the Records are, if they are known to exist, or can be found referred to in any exist ing calendar or index; and if it be doubtful whether any Records supplying the required information exist or not, to cause the proper searches to be made in the proper places. 11. For the purpose of securing or facilitating the communication of all the information thus sought to be made available, it may be necessary in some cases to cause some of the existing calendars and indexes to be removed to the Public Record Office, and in other cases to cause copies of the existing indexes and calendars to be made, so that one copy may be at the Public Record Office, and another copy at "the place where the Records are kept. The propriety of adopting one or other of these courses will depend in each case upon considera tions of convenience and expense ; the principle being to MEMOIR OF HENRY LORD LANGDALE. 131 consult the public convenience to the utmost extent that the pecuniary means allowed will permit. 12. There are rooms in the Rolls House, which, with very little trouble and expense, might be made available for the Public Record Office, and afford the necessary accommodation to the Deputy Keeper of the Records, and the other officers or clerks who ought to be there ; and the propriety, as well as the facility, of establishing the office there for the present, are so obvious, that I have already directed preparation to be made for the purpose. Whether the building can be adapted to the more extensive objects to which I am about to advert, may be doubtful; but, if it can, very great advantages for the Record service may be very soon obtained, 13. The Rolls Chapel, which is immediately adjoin ing to the Rolls House, is extremely crowded with the charter rolls, patent rolls, close rolls, and other Chancery Records, continued in a regular series from the begin ning of the reign of King Richard III. These are the Records which are of the greatest utility, and are most frequently resorted to by the public. The earlier series of the like Records are now in the Tower of London. The rooms in the Rolls House are spacious, and are now principally occupied by Records belonging to the Court of Queen's Bench from the reign of King Henry VI. down to the fourth year of the reign of his late Majesty King George IV. ; the earlier series of the like Records are in the Chapter-House at Westminster; the subse quent series are partly in the Treasury of the Court of Queen's Bench at Westminster, and partly in the office of the Court, now in the Temple. K 2 132 MEMOIR OF HENRY LORD LANGDALE. 14. The earlier series of the Queen's Bench Records, which are in the Rolls House, occupy a very large space, and are comparatively but little resorted to by the public; and if a portion of them were removed to the Tower of London, where there is room to receive them, a very considerable space in the Rolls House would be obtained; and in the Rolls Yard there are two large rooms, which are vacant, and were formerly used as the Cursitor's Office, abolished by the statute 5 & 6 Wm. IV. c. 82. 15. The space thus obtained would, if the buildings can be made properly secure, in the first place afford the necessary relief to the Rolls Chapel, and afterwards be most conveniently occupied by the early series of the Chancery Records, now in the Tower of London, and by the several Records of various classes which have been repaired, arranged, and placed in boxes, or bound, under the direction of the late Record Commission or other wise, and are now dispersed in various offices. 16. Before it can be determined whether the design is practicable, it will be necessary to ascertain — 1st. Whether the Rolls House and the late Cursitor's Office are, or can be, at a moderate expense, made fit for the accommodation of the Records proposed to be placed there. 2ndly. Whether the removal of the older Queen's Bench Records to the Tower would be satisfactory to the Court of Queen's Bench; and, 3rdly. Whether the temporary occupation of the Rolls House and the late Cursitor's Office for the above purposes would mate rially interfere with the erection of the general repo sitory on the Rolls estate. I have no reason to think MEMOIR OF HENRY LORD LANGDALE. 133 that the circumstances here noticed would occasion any considerable difficulty, but I cannot speak with con fidence, as I have not thought fit to make all the in quiries which may be necessary, until I am informed whether your Lordship approves of the general outline of the scheme which I am now offering to your con sideration. 17. It is undoubtedly an objection that the expense of moving the Queen's Bench Records to the Tower would be incurred, and that when the General Record Repository shall be provided, there may be the expense of bringing them back ; but the advantages to be derived from the arrangement which I have proposed are very great, and are such as to make it appear to me clearly beneficial to the public to incur that expense; and I only mention the subject to show that it has not been neglected. 18. If, for any reason, the Rolls House cannot be made use of as a temporary place of deposit for such Records as I have proposed to place there, it will be expedient to provide some other convenient place for the same purpose. 19. At the same time that the Public Record Office is established, it will be necessary to provide a particular system of management, and a regular attendance at the Rolls Chapel, the Tower, the Chapter House, and such other subsisting offices or places of deposit as cannot be discontinued until the General Record Repository shall be erected. 20. The contents of every Record Repository ought to be accurately ascertained ; and for that purpose com- 134 MEMOIR OF HENRY LORD LANGDALE. plete chronological repertories, inventories, and cata logues of the Records should be formed. Calendars, or tables of contents, and alphabetical indexes to the whole, should also be prepared; and it will be important to proceed with as much effect as the means allowed will permit, with the work of cleaning, sorting, binding, and placing in boxes. Some part of the work must be per formed in the places where the Records happen to be; but it may probably be found more convenient and safe, and in the end less expensive, to provide a work shop, in which the work of cleaning, repairing, sorting, and binding, may be performed under proper inspection, and without allowing the Records to be at any time out of the custody of the proper officers. The particular work to be done in each office or place should be directed by the Deputy Record- Keeper, and, if necessary, be from time to time inspected during its progress by an officer appointed for that purpose. Periodical accounts of the work done should be regularly returned to the Deputy Keeper at the Record Office ; and, at convenient periods, and as space may be afforded, the arranged Records may, if proper arrangments for that purpose can be made, be removed to the Record Office. 21. I submit to your Lordship that, so far as it may be practicable, all work to be done, and all materials and stationery to be supplied for the Record service, should be done or supplied by Government officers, or from Government offices, charging, if your Lordship should please so to direct, the proper costs and prices to the Record service, so that the total expense may be known, and all interference of private interest be prevented. MEMOIR OF HENRY LORD LANGDALE. 135 22. I further submit to your Lordship that all officers ought to be considered as attached to the General Record Office, and engaged generally in the Record service, and liable to be employed in such particular services as the Deputy Record-Keeper, with the sanc tion of the Master of the Rolls, may appoint. It will, of course, be desirable, and even necessary, that every officer should be employed in the peculiar service to which his abilities, experience, and character are best adapted ; and that every one should be continued in the employment to which he appeared to be best suited. On the other hand, as it cannot at first be known to what particular parts of the service individuals will be best adapted, or what would be the best distribution of employ ment, and it is necessary to guard against an inconve nience to which the Record service is (in the present state ofthe Records) liable to be peculiarly exposed, no officer ought to be allowed to consider himself as permanently attached or confined to a particular duty in a particular place, but ought to hold himself in readiness, when the service requires it, to perform any duty which may be directed by competent authority. 23. I have further to submit to your Lordship, as necessary to the promotion of steadiness and zeal in the service, and the prevention of all conflict between the private interest and the public duty of the officers, that every officer should, during the prescribed official hours, be exclusively employed in the service, and not be per mitted to give part of his time to the service, and other parts to other employment. That, in all cases in which it may be found useful and practicable, the remuneration 136 MEMOIR OF HENRY LORD LANGDALE. of the clerks and others engaged in the service, should consist partly of salary and partly of reward for task work and regularity of attendance, within such limits as may be approved by the Treasury : and that no Record officer shall be allowed to act as a private Record agent in making or conducting searches, or procuring office- copies, or otherwise, for his own emolument. 24. As great inconvenience and great additional ex pense is occasioned by the number of places in which the Records are now deposited, it is highly desirable to diminish them as much as possible ; and I submit to your Lordship, that, whilst the General Repository is preparing, and as room can be afforded, the Records now in the minor places of deposit, ought to be removed therefrom, and added to the larger collections. At present the Tower alone affords any considerable space; but, if the General Record Office can be adapted to the reception of the arranged Records, space may also be found in other places, to such an extent as to make it unnecessary to use some of the minor places of deposit at all. In this way expense would be saved, to an amount far exceeding the expense of removing the Records in the way proposed. 25. In everything which may be done, it will be necessary to keep in view the final arrangement of the Records upon a systematic plan, and to take care that none of the operations undertaken shall in any way interfere with the legal validity of the Records, or materially interrupt the use of them. 26. The final arrangement of the Records cannot be determined upon without great consideration. A very MEMOIR OF HENRY LORD LANGDALE. 137 useful attempt to form a systematic arrangement was made by Mr. Luders, under the direction of the Com mittee of the House of Commons, in 1800, and is found in Table I, annexed to the Second Report of the Com mittee. Since that Table was formed, a very great additional knowledge of Records has been obtained, but that knowledge has not been applied to the correction or improvement of the Table ; and it appears to me to be necessary to reconsider the subject in its most minute details, and to make available all the knowledge now possessed, and all the skill and experience of the Record officers engaged in the service, to frame a systematic arrangement as full and accurate as may be, and to make all calendars preparing in the several offices, as well as all removals, subservient to the ultimate placing of the Records together, according to such arrangement, in the General Repository when provided. 27. And, in the meantime, to prevent any confusion arising from intermediate changes, it will be necessary to make regular entries of every removal in a transfer- book, to be kept for the purpose at the General Office, and also in another book to be kept at every place from or to which any Records may be removed. The Act has placed the Chancery Records in the custody of the Mas ter of the Rolls for the purposes of the Act, but no others can be brought into his custody without a warrant coun tersigned by the Lord Chancellor; and the Records in the custody of the Master of the Rolls cannot be removed from one place to another without his warrant : and it may be expedient that, before any Records are removed from the places of deposit in which they were when 138 MEMOIR OF HENRY LORD LANGDALE. the Act passed, they should be stamped with a stamp denoting the office to which they then belonged. By means of such stamps, the warrants for removal, the re ceipts given for the Records when delivered according to the warrants, and the entries in the transfer-books, a complete account of the custody of the Records will be preserved, and no difficulty will arise either as to their authenticity or as to the places where they are to be found at any particular time. 28. The Records of the abolished Courts in Wales are amongst those which require the earliest attention. Under the statute 11 Geo. IV. & 1 Wm. IV. c. 70, they were left in the possession of the persons in whose cus tody they were when the Act passed. It is necessary to ascertain in what state they now are, and how far it is proper or expedient to remove them to London : and, at all events, to provide for their safe custody under proper regulations. 29. In my letter to your Lordship, dated the 17th August, 1838, 1 had the honour to suggest to your Lord ship the propriety of having the Welsh Records surveyed by some competent person, for the purposes then men tioned; and the expediency of adopting the suggestion appears to me to be greatly strengthened by the corre spondence relating to one part of the Welsh Records communicated to me by your Lordship's directions on the 10th day of December, 1838. 30. Attention is also required to the Records of Dur ham and Ely. 31. In order that the business may be duly controlled and regularly transacted, journals and accounts of all MEMOIR OF HENRY LORD LANGDALE. 139 proceedings should be kept, in such a form as to make a strict superintendence possible, and even easy ; and for this purpose attendance-books and journals must be kept in each office or place of deposit ; every person charged with the execution of any duty should keep a strict account of all his proceedings, and regularly return a copy thereof to the General Office ; and at the General Office should be kept books in which the accounts of all works and transactions are to be consolidated and me thodized, so that the exact state of the proceedings, and the state of the expenditure, may be at all times known or ascertainable upon a very short investigation; and these books are, from time to time, to be laid before the Master of the Rolls, so as to enable him to know at all times what is the state of the accounts, what progress has been made in the works, and what has been the con duct of every individual engaged in the service. 32. In order that the journals and minutes of the proceedings of the office may be duly entered, that all accounts may be duly and regularly kept and methodized, that such fees as are to be continued should be duly col lected and accounted for, and for the making of small cash payments and various other services, it will be necessary to appoint an officer who, under the name of Secretary, or some other appropriate name, may perform the duties of Secretary, Book-keeper, and Cashier. The duties to be imposed on this officer are of a confidential nature, and of great importance. 33. And in order that the Records may be cleaned, repaired, sorted, covered, ticketed, and bound, or placed in boxes on an uniform and systematic plan, and as 140 MEMOIR OF HENRY LORD LANGDALE. economically as may be, and that all removals may be made with due care and attention, it will be expedient to charge an Assistant Record-Keeper, or one of the superior officers of the establishment, with the duty of superintending all such operations under the directions of the Deputy Record-Keeper. 34. I do not at present make any suggestion to your Lordship as to the amount of money which ought to be allowed for this service. The extent of the work re quired to make the Records properly accessible to the public is extremely great, and any sum that may be allowed may be usefully expended upon it. It will be for the Government to consider what can be properly afforded for this department; but I submit to your Lordship, that whatever sums may be allowed, ought to be carried to an account to be called " The Public Re cords Account," at the Bank of England, and that the Deputy Record-Keeper ought to be authorized to draw upon that account by his drafts, countersigned by the Secretary ; and that, as far as convenience will permit, all payments ought to be made by means of such drafts. 35. It does not on this occasion appear to me to be necessary to trouble your Lordship, by entering into any further details. It must, I conceive, be obvious that, by acting upon the above suggestions, the use of the Public Records would be very greatly facilitated; and that, during the preparation of the General Repository, and prior to its completion, very substantial benefits would be secured to the public, without incurring any great additional expense; and that, at the same time, great progress would be made in preparing the Records MEMOIR OF HENRY LORD LANGDALE. 141 for their arrangement in the General Repository when provided. 36. In order that authentic copies of Records may be prepared for the purposes of evidence, I shall, under the 11th section of the Act, give directions for the making of a seal ; but, until Assistant Keepers shall be appointed, the Deputy Keeper is the only officer autho rized to certify the copies; and the public cannot have the benefit of the 13th clause, without very materially interfering with the other duties of the Deputy. 37. If your Lordship should approve of the sugges tion which I have had the honour to submit to your con sideration, it will, I presume, be proper to form an estimate of the expense which will be incurred ; and as this will, in a great measure, depend upon the salaries which may be allowed to the different officers who may be employed, and the extent of the annual work which your Lordship may be disposed to authorise, I shall not be able to direct such estimate to be framed without some further communication with your Lordship or the Trea sury on the subject ; and, for the purpose of affording time for the requisite consideration and preparation, I submit to your Lordship that it would be proper to con tinue all the officers on their present footing till the 31st of March. I shall be prepared, to submit to your Lord ship an estimate of the appropriation of the sum of 1250/. (the residue of the grant of 5000/. for the current year) to the service for that time; and I submit to your Lordship that, from the end of the present quarter, the business of the Records should be conducted under the provisions of the Act. 142 MEMOIR OF HENRY LORD LANGDALE. 38. In the meantime I have the honour to propose — 1. That such rooms as can for the present be spared in the Rolls House, be prepared for the accom modation of Sir F. Palgrave, the Deputy Record-Keeper, and for Mr. Thomas, who, with the approbation of the Treasury, acts provisionally as Secretary. 2. That the Rolls House and the late Cursitor's Office be surveyed, for the purpose of ascer taining whether they are proper places for the reception of such Records as have been before referred to as proper to be removed thither. 3. That the general plan for the future manage ment of the Records, when the same shall have been approved by your Lordship, may be communicated to the several officers of Re cords who have such interests in their offices as may entitle them to compensation, for the purpose of enabling them to consider what course it may be expedient for them to adopt, or what compensations they may claim in consequence of the great changes which will be made in their situations. 4. That a Secretary and a competent number of Assistant Record-Keepers and Clerks may be appointed by the Treasury, pursuant to the 6th and 18th clauses of the Act. I have, &c. Langdale." MEMOIR OF HENRY LORD LANGDALE. 143 CHAPTER X. STATE OF THE RECORD SERVICE BEFORE THE PASSING OF THE ACT. ENORMOUS FEES. DEFECTIVE CALENDAR. — LORD LANGDALE REDUCES THE FEES, AND FORWARDS THE FORMATION OF NEW CALENDARS. GENERAL INDEX IN PROGRESS. — DIFFICULTIES AND OBSTRUCTIONS. To properly understand the foregoing letter it is necessary to take a cursory view of the actual state of the Public Records anterior to the passing of the Act of the 14th of August, 1838; and of the expenses attend ant on searches and copies of the national muniments for legal or historical purposes. The Public Records were dispersed in upwards of sixty different places of deposit, all more or less under different management, and having as many various rules and regulations for their governance, as well as for the opening and closing of the Repositories. Some of the officers were paid by a salary from the Government, and by fees from the applicants; others were remunerated by fees only; consequently, this tax upon litigation and literature was constantly the cause of complaint and indignation. The fees were different in all offices ; exorbitant in most, and in some, amount ing almost to a denial of justice to the poor litigant, while the literary student was shut out from the use of Records, except under a favour to himself from the 144 MEMOIR OF HENRY LORD LANGDALE. heads of the office, or an outlay of money he could ill afford. The fees for searches varied from Is. to 5/. 5*. per diem; for inspections of single documents, from Is. up to 16s. 8c/.; and for copies from 6d. up to 3s. 6d. per folio; and the number, even of words in a folio differed; in most offices it was seventy-two words, in a few seventy-eight, and in others ninety. There cannot be a doubt that the payment of fees and douceurs leads to the worst results. The necessities of some, and the cupidity of others, are thereby (as it were) legally indulged. Obstructions, denials, and ex tortions are all more or less encouraged by the demand of fees. And here let me again state, (because it has been elsewhere otherwise alleged,) that Lord Langdale was an opponent to the payment of fees; he solemnly declared before a Select Committee of the House of Commons, that " if he might express a wish, it should be, not only that no officers should be interested in any fee, but that no fee at all should be received ; for fees are in the nature of taxes." He thought them a tempta tion to dishonesty, and an improper mode of encouraging industry ; that they led to great abuses, and that no power could be found to prevent extortion in some shape or other if you once allowed officers to demand or to accept money for their own use; for even good men have their weak moments, and under some specious pre text, will be tempted to take something different, or something more than they ought to take; something in the way of gratuity, or civility, or expedition-money, at first given as a token of gratitude, and accepted under a consciousness of desert, but in time settled into a MEMOIR OF HENRY LORD LANGDALE. 145 claim, or a hint not to be disregarded if prompt service be required. I have already stated the varying sums demanded for searches, inspections, and copies of records; but it is necessary to say something more, to show how the de mand of fees operated as a denial of justice, and a bar to the circulation of historical knowledge, so that suitors and the public may know how much they are indebted to Lord Langdale in this particular alone ; and I am the more anxious to do this, because an unjust report has been bruited about that all fees for the consultation of Records would have been removed had it not been for his opposition to such a measure. The calendars and indexes to the Records, to which the public had access upon the payment of the fees men tioned above, were in a most imperfect state; they did not refer to one-fiftieth part of the contents of the repo sitory to which they respectively belonged; therefore calling them either calendars or indexes was a misnomer; they were generally nothing more than memoranda made by some diligent clerks or antiquaries for their own especial use, and left as a species of heir-loom to the office. The imperfections and deficiencies of these calendars induced some officials to construct new, or to amend the old ones, but to these the public had no access whatever ; they were private property;'* and * An exception must be made in favour of Mr. Petrie, Keeper of the Records in the Tower of London, who corrected with his own hand the printed Calendars to the Rolls of John, and commenced a new Calendar to the Patent Rolls of Henry the Third, which was nearly completed at the time of his resignation. Mr. Lysons, Mr. Petrie's predecessor in the keepership of the Tower Records, ought VOL. II. L 146 MEMOIR OF HENRY LORD LANGDALE. a search for any particular document or grant was only made by the owner of the calendar himself, upon the payment of another fee, ranging in amount from two to ten guineas. The search was only the first step in the scale of Fee -taking ; the entry in the calendar, whether be longing to the office or to the officer, was generally so meagre or doubtful (often worded for the purpose of misleading, or, at any rate, leaving the meaning so extremely equivocal as to render a sight of the docu ment itself essential for the removal of doubt), as to whet the inclination of the searcher, and to tempt him to incur the further expense of an inspection ; whereas, had the entry in the calendar been explicit and clear, the applicant would have known at once whether it was necessary for him to consult it, or not; but such a calendar would have been against the interest of the proprietor of the index, who was of course also the recipient of the fees for inspection. It is needless to go into examples ; hundreds could be adduced at a breath. The notice in the calendar or index then produced the second fee, viz., that of inspection, or taking down the Record, which ranged from Is. up to 16s. 8c?. ; and this was exacted whether the entry was of use or not. But what made the case the harder was, that supposing there was more than one entry on the Roll the applicant had paid his fee for taking down, he would have to pay the same fee for every entry on the Roll he looked at, even also to be excepted, he having made new calendars to the Chancery Proceedings of the time of Queen Elizabeth. MEMOIR OF HENRY LORD LANGDALE. 147 if they amounted to a hundred, unless at starting he took the precaution (if he had a knowledge of the fact) to state that he would make a composition to search the Roll for 1/. Is.; and even then, if he found any thing not immediately connected with his present in quiry, he was not allowed to notice it, without pay ing an additional fee. Supposing, however, that the entry on the Record which the applicant had paid for inspecting, did bear upon the subject of inquiry, the unfortunate fee-payer was not even allowed to make any extract from it, beyond the names of the parties men tioned in the document, and its date ; though he might only want a paragraph of twenty words, as a link in his chain of evidence or reasoning, he was compelled to take a copy of the whole, even though at a cost of a hundred guineas, or more; occasionally, however, and then as a matter of favour, hardly of right, if the docu ment were of a particular nature, a parcel copy or extract might be had, if the cost of the whole was beyond ten pounds ; but nothing under that sum would come under that rule of favour or exemption. The inexperienced reader may think the fee -extorting system by this time had done its worst ; that the unfor tunate suitor or inquirer had paid enough for his curio sity or privilege in consulting the national muniments ; for the preservation of which he had already contributed his quota in the shape of taxes, towards the salaries of their keepers and clerks. But he will bd mistaken. In all those cases which occurred before the Houses of Lords and Commons, or Committees of the same, the original Records were always brought up by Warrant of the L 2 148 MEMOIR OF HENRY LORD LANGDALE. Speaker, or the Chairman of Privileges. The dignity of Parliament would not be put off with such office- copies as satisfied the Courts of Justice below ; they must see the originals, as well as have copies of them; and for every document so brought before Parliament a fee of 21. 2s. per diem was demanded ; and no diminution of this fee was ever for a moment thought of or listened to, even if the number of documents amounted to a hundred : two guineas a day were demanded and received for each — thus in peerage cases, where there were seldom less than an hundred instruments necessary to prove a pedigree, two guineas were paid every day for each do cument taken out of the office to Parliament ; and some times these documents went up for three or four days together, in case they might be required. A thousand guineas spent in fees only for producing records before Parliament was no uncommon sum paid; besides the other expenses of searches, inspections, and office-copies. In some special cases it was also necessary for the infe rior Courts to see the original records, and then the same fees were also demanded and paid. Men interested in the recovery of some great right, or in the protection of their property, were compelled to pay these extortionate demands; but the historian, whether general or local, and the poor author, were, of course, debarred (except in some few instances where permission was granted as a favour) from consulting the national archives. And here I would remark, that I do not intend to cast the slightest reflection upon the late keepers or clerks who received the fees; for, in almost every MEMOIR OF HENRY LORD LANGDALE. 149 individual instance, they were gentlemen, men of honour and the strictest probity, who would have scorned an injustice or extortion, and who would gladly have changed the system, and taken salaries in lieu of fees. But it is against the principle of fees, as a tax, that I have made my remarks, because Lord Lang dale, if not the annihilator of this abuse, was cer tainly the great moderator of it. He held as a general rule that no fee whatever ought to be taken for the consultation of the public muniments; but as he was advised by many persons, whose opinions were entitled to great respect, that some fee was necessary to be taken, lest the Records should be injured by indiscriminate use, he was induced, against his in clination, to consent to the measure of taking fees for the protection of the Records; but when he was urged to make an exception in favour of literary appli cants, he refused, on the ground that, if any favour ought to be shown to either party, it should be to the suitor who was compelled to go to law, either for the recovery or protection of his rights or property ; whereas the author published his work either for his own profit or for reputation : in either of which cases he was better off than the suitor. One was a voluntary act, the other a compulsory one ; but Lord Langdale always said, that as far as he was concerned, he would have the public records as accessible to all parties as the British Mu seum,* no fee or tax whatever paid for consulting * Lord Langdale fully carried out this principle, sometimes, it must be owned, to the dissatisfaction of his officers. One of the Assistant Record-Keepers had discovered the accounts of the ex- 150 MEMOIR OF HENRY LORD LANGDALE. them; but as long as it was considered necessary to protect the Records by a tax he would not make ex ception in favour of any class. And he laid it down as a principle to his officers in the Record service, and reported his opinion on the subject to the Government several times, that the fees taken for the consultation of the public muniments were not to be regarded as sources of revenue, but entirely as protection ; and in framing the new scale of fees he was actuated by that principle, and by that principle only. The fee for using the calendars and indexes, he made only Is. per week ; for the inspection of a roll or bundle, no matter how large or numerous the contents, Is. per week, with the privilege of copying the whole contents in pencil (ink being forbidden for fear of accidents) ; and if the number of rolls or bundles exceeded five, the As sistant Keeper had the authority to reduce the fee to 5s.; penses incurred in erecting the crosses for King Edward's Queen at the different places where her body rested, and which it had been supposed were erected by Edward out of affection for her memory, but the accounts showed that they were paid for by the Queen's own executors; so that the story of King Edward's conjugal love is, so far, without foundation. The assistant-keeper intended to print the account of his discovery ; but, in the meantime, some one else having heard of it, applied to him for a copy of the record. Upon which the assistant-keeper requested Lord Langdale to authorize him not to give any copy until he had published the document. His Lordship, however, told him that was impossible, and though it was very hard that the oyster should be taken out of his mouth just as he was about to swallow it, yet he must recol lect that it was the duty of assistant-keepers to let the public have the benefit of every record in their office, and, further, to facilitate in every way the searching for, and taking copies of, the national documents. MEMOIR OF HENRY LORD LANGDALE. 151 so that the searcher might look at five hundred rolls or documents, if he had time, for 5s. a-week, and copy or make abstracts of the whole of them into the bargain. The fee for copies was reduced to 6d. for ninety words, about half the sum charged by a law-stationer for the same species of work. When it was necessary to produce Records before Par liament, or any of the Courts, parties, for the sum of 21. 2s. per diem, were entitled to take a thousand if they chose : there was no limit to their number. Furthermore, no gratuity or reward was suffered to be taken by any officer or attendant, under any pretence whatever; and every officer is bound to impart his know ledge and advice to all parties seeking or needing them. So that to Lord Langdale the public is entirely in debted for the moderation, if not the removal, of the hardships and difficulties formerly attendant on the consultation of the Public Records. The present Master of the Rolls has, however, con ceded one point about which Lord Langdale hesi tated ; he has allowed literary applicants to consult the Records gratuitously, under certain restrictions. And here I may, perhaps, without egotism or imper tinence, be allowed to speak of myself: I have ever been, and still am, an opponent to the payment of fees for the consultation of records, and on several occasions I urged the subject on Lord Langdale's considera tion, but he invariably answered, — " I cannot do it without the consent of Parliament. Like yourself, I am an opponent to all fees; but it having been thought necessary, for the protection of the Records, to tax their 152 MEMOIR OF HENRY LORD LANGDALE. consultation, I placed the smallest fee I could for that purpose ; and I was required by the Act of Parliament to lay the scale before Parliament for its approval ; and Parliament having approved of the scale I made, I can not alter it without the sanction of Parliament ; but I shall be happy to obtain that, if you can make out a sufficient case of necessity." And the very last inter view I had with my lamented master, I told him that a member of the Bar, Mr. F. A. Carrington, and myself, had drawn up a petition to him on the subject, but had been prevented from presenting it solely on ac count of his ill health, not wishing to plague him with more matters than it was necessary to bring before him. He read the petition which had been drawn up by Mr. Carrington, and said, — " It is now too late-for me to act in the business, but you know my opinion; if my suc cessor feel inclined to act upon the petition, he will lay the matter before Parliament, and I will give it my support." The reduction of fees is not the only subject for which the public are indebted to Lord Langdale. For increased and regular hours of attendance at all the offices; the formation of new calendars and repertories; the better arrangement of, and access to, the Records : in fact, for every advantage that the public are now reaping and have reaped since the passing of the Public Record Act, and for some time previously, they are indebted to him, and to him alone. To give an account of the complicated proceedings in bringing matters to their present state, and of the minute details connected therewith, would be foreign to MEMOIR OF HENRY LORD LANGDALE. 153 the purposes of this work. It would require more than one volume to be devoted to those subjects alone,* and after all, it would not be interesting to the general reader, though highly so to those who have been affected by the new arrangements. Lord Langdale, in his letter to Lord John Russell, dated 7th Jan. 1839, submitting his views for the management of the Records {ante, page 126), states that, " in everything which may be done, it will be necessary to keep in view the final arrangement of the Records upon a systematic plan. With this object, Mr. Thomas, the Secretary of the service, has been for some time preparing a General Reference Book to the Public Records, containing an account of all the classes and series, with a proposed plan of arrangement, upon which he has bestowed considerable labour and pains." When published, his book will afford the best evidence of what has been done under the direction and super intendence of Lord Langdale. It is intended to no tice the various classes of Records, arranged under the respective courts and departments to which they belong ; and each being under alphabetical arrangement, the searcher is referred to the same head in each Court ; but lest any difficulty should arise by this necessary analy tical arrangement, a general alphabetical index is also given, so as to bring into one focus the whole of the information on a particular subject. The Record Act, as I have stated, passed on the 14th * It is my intention to write a History of the Public Records of the Realm, in which I shall have a better opportunity of doing justice to Lord Langdale, than I am able to do in these pages. 154 MEMOIR OF HENRY LORD LANGDALE. of August, 1838, and full two years were employed in forming the establishment, and in making the ne cessary preparations for carrying the Act into prac tical execution. It is quite impossible for the Government or the public to conceive the amount of labour and attention which Lord Langdale bestowed during that period upon the Public Muniments. The letters that have been alluded to will show something, but not a tithe of what he went through. There were obstructions to be removed, jealousies to be soothed, and avarice to be checked. Applications for employment poured in upon him from nobles who had friends to serve, from Members of Parliament who had obligations to re pay, and from friends who had relations to provide for. There was justice to be done to those already in office, and there were not wanting some who en deavoured to poison the mind of the judge who was to sit upon the claims and capacities of fellow-labourers; but what added most to his Lordship's annoyance and vexation, was hostility and wrongheadedness, where he expected assistance and enlightenment. But he was not to be turned from his purpose ; he pursued his way steadily and cautiously, easing when he could not cure, healing when the disease was not quite hopeless, and reforming with a firmness and dignity which made the disobedient tremble and the guilty quail. He en couraged by a smile and a benignant look those who tried to please; and nothing but unflinching firmness tempered by urbanity enabled him to get over the difficulties he had to encounter at every step. Well MEMOIR OF HENRY LORD LANGDALE. 155 might the Lords of the Treasury, in returning him thanks, say, that " not only did the Government, but the public also, owe him many obligations fur his able plans and management of the Record Service, and for the labour and attention which, in the midst of his im portant duties as Master of the Rolls, he had devoted to the accounts connected with them." Lord Langdale taught Mr. Thomas, the able and in telligent Secretary to the Record Service, how to proceed to make himself master of the affairs over which he was placed; and he particularly charged him not to take too much responsibility on himself; but to look to him for support on all occasions of doubt and difficulty ; and when his Lordship had himself any doubt, or required information, he invariably called in the advice of the Deputy Keeper and Assistant Keepers of Records; sometimes having private interviews with each sepa rately, at other times, collectively, and commonly re quiring their individual opinions in writing upon the subject under his consideration. Those letters which he considered necessary for him to answer, he wrote out in his own hand, and the drafts are still preserved in the Public Record Office ; those letters that were written by the Secretary, Deputy Keeper, or an Assistant Keeper, were all carefully studied over; and in almost every instance he made alterations and improvements either in the style or composition. Mr. Thomas, the Secretary, had immediate access, when he required, to see his Lordship, either before going into Court, or at its rising. " I have," writes Mr. Thomas, " frequently been waiting in the ante- 156 MEMOIR OF HENRY LORD LANGDALE. chamber for the rising of the Court, and seen him come out exhausted by fatigue, and suffering from the gout ; and yet he would never allow me to go away without hearing what I had to say, and if the business was too much for him to give his mind to at the instant, he would take home the papers to consider them, and the next morning bring me an elaborate letter or answer, written during the period which he had stolen from his family or his rest." And here I may be allowed to state that his Lordship thought most highly of Mr. Thomas' services, and on several occasions spoke of him to me in the highest and most flattering terms; he frequently said that he could never have succeeded in piloting the Record vessel through the storms and tempests which had beset it, but for his assistance. He looked to him on all subjects connected with the service, and in no one single instance had he found him wanting in any thing that he expected of him.* * In a letter to Sir Charles Trevelyan, dated 5th April 1842, Lord Langdale thus speaks of Mr. Thomas : — " It is very gratifying to me to find that the attention which I have been able to pay to the accounts connected with the Records has met with the approbation of their Lordships. For the great regularity which has been ob served I am principally indebted to Mr. Thomas, the Secretary of Records, and I feel confident that under his care the system which has been established will secure perfect regularity in all the Record Accounts." And one of the last letters that Lord Langdale wrote in connexion with the Record Service was to Mr. Thomas, and runs thus : — Roehampton, 27th March, 1851. " My dear Mr. Thomas, " I cannot retire from my office of Master of the Rolls without expressing to you the strong sense which I entertain of the great value of your services to the Public Records. MEMOIR OF HENRY LORD LANGDALE. 157 The Treasury, however, still delayed to act on the suggestions in Lord Langdale's letter of the 7th of January, 1839, and at length he wrote again to Lord John Russell as follows : — South Street, April 25th, 1839. " My dear Lord John, " If it were practicable for me to obtain an interview of only half an hour with you and the Chancellor of the Exchequer on the subject of the Records, I cannot help thinking that all, or nearly all, the impediments to the commencement of a new system of management would be overcome. I am well aware of the difficulty you may have in finding time for a subject like this; but sooner or later the small degree of attention which is required must be given, and I feel assured that by giving it now, much future trouble will be avoided. At all events I hope From the time when you were transferred from the State Paper Office until you became Secretary of Records, upon the establishment of the new system, and thenceforward up to the present time, the business of your office has been invariably conducted with the greatest regularity, zeal, and intelligence ; and I never had occasion to apply to you for information respecting the business of the Record Office without being supplied with all that the office afforded. And it has been principally, if not entirely, to you, that the public is indebted for the recovery of the accounts relating to the Records from a state of the utmost confusion ; and placing them on a footing ofthe greatest regularity. I need not say how anxious 1 am that your services to the Records should meet with no interruption. Believe me, my dear Mr. Thomas, With great regard and esteem, Faithfully and truly yours, Langdale." 158 MEMOIR OF HENRY LORD LANGDALE. that you will soon inform me on what basis you desire any estimate or computation to be made. I own that I am grievously disappointed at the prospect now before me of having the consideration of the subject postponed for another year. The whole business, if once established on a proper footing, ought to give the Government no trouble at all, and to give me none. It seems, I must say, to be so managed as to continue it a constant trouble to the Government, and a constant source of anxiety and trouble to me; and I hope that you will excuse me for urging you as much as I may be allowed to do, to avoid any further postpone ment of a final settlement. T have the honour to be, dear Lord John, your faith ful and obedient servant, Langdale." MEMOIR OF HENRY LORD LANGDALE. 159 CHAPTER XI. LORD LANGDALE'S EXERTIONS TO PROCURE THE ERECTION OF A GENERAL RECORD REPOSITORY. THE VICTORIA TOWER PLAN. FOUND TO BE UNSUITABLE. On the 6th of May, 1839, Lord John Russell for warded a Treasury minute to Lord Langdale, in which the Lords of the Treasury state that " they cannot ap proach this subject without expressing the deep obliga tions which they consider the public to owe to Lord Langdale for the attention and labour which his Lord ship has been pleased to bestow on a subject in which many important interests are involved, but which is not directly connected with the judicial functions of the Master of the Rolls, though zealously and most efficiently performed by Lord Langdale." The suggestions of Lord Langdale were generally ap proved of on matters of detail, but on the point on which he was most of all anxious, the erection of a suit able General Record Office, their Lordships had their doubts, and they even in some measure appear to have preferred a plan of " an adaptation ofthe Victoria Tower, connected with the new Houses of Parliament." The steps that Lord Langdale took to show the unsuitable- ness of this scheme, and in which he at last succeeded, are well described by himself in a letter addressed in 160 MEMOIR OF HENRY LORD LANGDALE. 1845, to Sir Robert Peel, then First Lord of the Trea sury, which will preclude the necessity of printing any of the numerous letters written by him on the subject in theintervening six years. Rolls House, May 20th, 1845. " Sir, "I have the honour to address you on the subject of the Public Records, which, under the statute 1 & 2 Vict. c. 94, are placed under the charge, superinten dence, and custody of the Master of the Rolls, on behalf of her Majesty. By the seventh section of the act it was enacted, ' that the Lord High Treasurer, or any three or more of the Commissioners of her Majesty's Treasury, shall provide such suitable and proper, or additional building or build ings, as may be required for the reception and safe custody of all the Public Records which, under the pro visions of this act, shall be in the legal custody of the Master of the Rolls.' This enactment, together with the need which there seems to be of your interposition, and my confidence that you will not think any application connected with the public service of the Treasury improperly made to you, are my reasons, and must, if necessary, be my ex cuse for troubling you on this occasion. One great cause of the disorder which has taken place in the management of the Records, and of the irreparable losses which have been sustained, has arisen from their being placed in the custody of several inde pendent authorities, in various places of deposit, and MEMOIR OF HENRY LORD LANGDALE. 161 being commonly left in the entire charge of inferior officers, whose interests were, sometimes, opposed to the interests of the persons requiring the use of the Records. The inconveniences arising from the dispersion of the Records have long been the subject of observation and regret, and a general repository has been occasionally hinted at as the remedy for those inconveniences ; but I am not aware that the subject was seriously considered, with a view to any practical remedial measures, till the year 1831, when the matter was brought under the con sideration of the late Record Commission. In the year 1832, a proposal for the erection of a General Record Office, Judges' Hall and Chambers, and other buildings, on the site of the Rolls Estate, was printed, with the sanction and at the expense of the Commissioners, and the subject having been for some time under consideration, a bill for empowering the Commissioners of Woods, &c, to erect a General Record Office was prepared, and was approved of, and is said to have been settled by Sir John Leach, Master of the Rolls, in communication with the Treasury and the Commissioners of Woods, &c. ; notice of motion for leave to bring in the bill was given by Lord Duncannon in July, 1834, but the motion was not made. This proposal was objectea to by Mr. Adams, the Accountant- General of the Court of Chancery, by reason of its being connected with a proposal to provide for the expenses out of the suitors' fund. He very properly considered it to be most unjust and unreasonable to take the property of the suitors in Chancery, to provide for the care of the Records of the other Courts of Justice, VOL, II. m 162 MEMOIR OF HENRY LORD LANGDALE. and of the National Records in the Augmentation Office and Chapter House. The failure of a scheme, the ex pense of which was intended to be so defrayed, is not to be regretted. On the 15th of August, 1836, the Select Committee of the House of Commons on the Record Commission, p. 39, express themselves thus: — ' The witnesses, whose opinion is entitled to the greatest respect, acknowledge the feasibility and the importance of erecting a General Record Office, into which all the Records of the country might be collected, and your Committee do not hesitate to recommend the erection of such an edifice, as the first and most essential step for the improvement of the present system ' of managing Records. In February, 1837, the Commissioners of the Public Records, in their observations made on the Report of the Select Committee, state as follows, p. 3 : — ' The opinion of the Commissioners has long been, that the present buildings ought to give way to a general re pository for Records.' And about the same time the same Commissioners, in their Report to the late King, pp. 10 — 12, stated their reasons for the opinion they held of the propriety of erecting a general repository for the Records. On the 24th of February, 1837, a Bill to provide for the safe custody, &c, of the Public Records was introduced into the House of Commons by Mr. Charles Buller, Mr. Hawes, and Sir C. Lemon ; and in the first clause of that Bill it was proposed to make an enact ment for providing a general repository for the Records in London or Westminster. ' MEMOIR OF HENRY LORD LANGDALE. 163 The Record Commission expired six months after the death of the late King. With my consent, Lord John Russell committed to me the temporary charge of the business and property of the Commission, and on the 14th August, 1838, the Public Records Act, 1 & 2 Vict. c. 94, to which I have before referred, was passed. On the 7th of January, 1839, I submitted to Lord John Russell my view of the necessity of providing a Public Record Office, and also a plan for the manage ment of the Records. A copy of this letter is printed in the Appendix to the First Report of the Deputy Keeper of Records, p. 67, paragraphs 4 and 5. The fifth paragraph suggests the expediency of providing the general repository for the Records on the Rolls Estate, near the courts of justice and the law offices. The Treasury Minute on the subject is printed in the same Appendix, p. 71. It appears by the Minute that one General Record Office, under efficient management and responsibility, was considered to be essential to the introduction of a perfect system; but it was observed, that it had been determined by Parliament that the Victoria Tower should be erected, and if that building could be adapted for the safe custody of the Records, the expense to the public for a second building would be altogether avoided, and on those grounds the Lords of the Treasury were unwilling, without a more accurate knowledge of the facts, and more precise information before them, to determine in favour of building a new Record Office on the Rolls Estate. Under these circumstances the Commissioners of M 2 164 MEMOIR OF HENRY LORD LANGDALE. Woods, &c, were directed to make the necessary sur veys with a view of considering, in communication with Mr. Barry, whether sufficient space would be afforded in the Victoria Tower for the safe custody and arrange ment of the Records, admitting, at the same time, of adequate access for the public for consultation and reference. Surveys were accordingly made, and in July, 1840, Mr. Chawner and Mr. Barry made their Reports, which are printed in the First Appendix to the Second Report of the Deputy Keeper, pp. 19, 22. Mr. Barry was under an erroneous impression, that some portion of the Records could, consistently with a proper arrangement, be considered as of secondary importance, and might, for that reason, be properly abstracted from Records supposed to be of greater im portance, with which they were connected, and be placed in a store-house out of the office ; and under that impression Mr. Barry expressed himself as follows : — ' Thus it will be seen that the whole of the Records now in existence may be placed in the Victoria Tower, and accommodation afforded therein for an annual in crease for many years to come ; but as it is probable that a very considerable diminution of their bulk will be occasioned by abstracting those which are of second ary importance to be placed in the store-house, the accommodation afforded by the Tower would be likely to prove sufficient for several centuries.' The Reports of Mr. Chawner and Mr. Barry were sent by Mr. Milne to Sir Francis Palgrave, who, by my MEMOIR OF HENRY LORD LANGDALE. 165 directions, wrote to Mr. Milne the letter of the 31st July, 1840, which is printed in the same Appendix, pp. 22, 23. A Report was subsequently (i.e. 4th November, 1840) made on the subject by the Commissioners of Woods, &c, and sent to me on the 24th March, 1842, and my opinion was asked as to the plan for the per manent accommodation of the Records. My answer is dated 4th October, 1842, and is, to gether with the reply, dated 28th November, 1842, printed in the First Appendix to the Fourth Report of the Deputy Keeper, pp. 37, 39. The letter of the 4th October, 1842, contains the statement of the reasons for the opinion which I enter tain that the general repository for the Public Records ought to be erected on the Rolls Estate, or at least in the neighbourhood of that estate, and of the courts, and offices of the courts, of law and equity; and I take the liberty of requesting your particular attention to those reasons. I ara not aware whether the same reasons remain in their full force at this time, as without knowing it, I have some reason to think that they may have been disregarded, and made somewhat less cogent by arrange ments made for affording accommodation for the offices of the Courts of Common Pleas and Exchequer, in Serjeants' Inn and Lincoln's Inn. The Treasury Letter of the 28th November, 1842, left the question as to the site of the New Record Office in some degree of suspense, but it appeared to me that a 166 MEMOIR OF HENRY LORD LANGDALE. decided preference for the Victoria Tower was shown, and it remained to be seen whether proper accommoda tion could be there obtained. Whilst things remained in this state, the inconvenience arising from the dispersion of the Records became more obvious, and occasional alarms of fire occurred in the different offices ; but the danger, though such as ought not to be incurred at all, did not appear to be ex tremely urgent till December, 1843, when I was very unexpectedly informed, that upon an examination of the Record Office at Carlton Ride, by Mr. Braidwood, it appeared that the Records there placed were exposed to very great and extraordinary risk from fire. By a letter dated the 21st December, 1843, I com municated the circumstances to the Lords of the Trea sury, and then added as follows : — ' Their Lordships will, I hope, excuse me for taking this occasion to press most earnestly upon their atten tion the urgent necessity of providing for the Records a permanent place of deposit, fire-proof, and in all respects safe. Questions relating to the site and form of the pro posed Record Repository are no doubt of great import ance, but it appears to me that everything else relating to the Records, ought to yield to the imperative duty of providing for their safety at the. earliest practicable period. To permit them to remain exposed to the present risks, is to keep them subject to the probable chance of being destroyed, and lost to the country for ever ; and the loss would be irreparable. To render the Records inaccessible or difficult of MEMOIR OF HENRY LORD LANGDALE. 167 access to the public, even for a short time, would be productive of very great inconvenience, and might occa sion to many persons the loss of their rights, of which the Records are the evidence ; but for the sake of pre serving the Records in safety for all future time, and in preference to leaving them exposed to destruction in the manner they are now, it appears to me to have become a question for serious consideration, whether it is not expedient to pack up the Records closely in a safe place, such as the Tower, and leave them there difficult of access (as if closely packed they must be) for the limited time during which a proper repository might be prepared for them. I earnestly and respectfully request their Lordships to give their early attention to this subject, and to inform me, as soon as they conveniently can, within what time I may reasonably hope that a General Record Reposi tory will be provided.' This letter was referred to the Commissioners of Woods, &c, and upon their report I was informed, on the 23rd of February, 1844, that certain parts of the New Houses of Parliament could be prepared for the Records within the current year. In the meantime I communicated personally with Mr. Barry, who ac companied me to inspect the repository in Carlton Ride, and at his request, and pursuant to his instructions, an entirely new measurement of the Records now in my custody was made by Mr. Cole, who made his report thereon on the 24th February, 1844. I communicated this report to Mr. Barry, and on the 18th April, 1844, after having consulted the Record officers, I informed 168 MEMOIR OF HENRY LORD LANGDALE. Mr. Barry of the particular accommodation which would be required in the Record Office. . The whole matter was, I have no doubt, carefully and skilfully considered by Mr. Barry. But it appeared that the Victoria Tower and the adjacent parts of the build ing, which could be applied to the purpose, were not of themselves sufficient to afford the necessary accommo dation to the Records ; and therefore it became necessary for Mr. Barry to consider in what other part of the New Palace a considerable portion of the Records could be placed. Mr. Barry has been, I believe, unable to find any place better than the roofs; and on the 17th February, 1845, he requested me to state whether the roofs of the New Houses of Parliament were likely to be satisfactory for the reception of a portion of the Records. Soon afterwards Mr. Barry was kind enough to permit me to inspect the roofs intended to receive a portion of the Records, in his presence; and at a subsequent period the same roofs were, at my request, inspected by Sir F. Palgrave, the Deputy Keeper of the Records; Mr. Thomas, the Secretary; and the Assistant-Keepers, Messrs. Palmer, Hardy, Cole, and Hunter. Their report to me is dated the 14th day of May, instant, and a copy of it is subjoined to this letter.* I beg leave to state that I entirely concur in the con clusions stated in this report. I think that the roofs of * Each of these officers made his own separate report, and after various consultations together, they made a joint report, here referred to by Lord Langdale, but which it is unnecessary to print, as its sub stance is given by his Lordship.j MEMOIR OF HENRY LORD LANGDALE. 169 the New Houses of Parliament are so far from being likely to be satisfactory, that they are in fact wholly unfit for the reception of any Records which ought to be preserved. They may afford space for packing up or stowing away Records, but no part of the Public Records, the preservation of which is required for the public service, or for any public or national purposes, ought to be stowed away in a lofty roof, or in remote and obscure recesses. All the Public Records ought, on the contrary, to be accommodated in the manner of books, in a well- arranged public library, affording easy access for fre quent consultation and reference ; and I conceive it to be perfectly clear, that the roofs in question do not afford the means of properly arranging any portion of the Public Records, or the means of giving the public proper access to them, or tbe means of duly protecting them from injury and depredation. I need not, on this occasion, say anything of the great importance of arranging and preserving, under a well- regulated system, the Public Records of the kingdom, including, if it should be thought proper, all the State Papers and public documents and accounts not wanted for the current purposes of the several offices of Govern ment; nor is it necessary to speak of the neglect and exposure to loss and depredation, to which the Public Records of this country have been so long subjected. But I submit to you, that the future preservation of the Records ought to be provided for without any further or unnecessary delay. The wish or intention of 170 MEMOIR OF HENRY LORD LANGDALE. placing them in the Victoria Tower, and other parts of the New Palace, has failed, for want of space for its ac complishment. The Records, for want of a safe general repository, continue to be imperfectly and unsatisfactorily managed, at an unnecessary expense; they are improperly exposed to risks which are very great and are continually in creasing ; and after the lapse of nearly seven years from the passing of the Public Records Act, the public has not the benefit which was intended to be secured. Some considerable improvement has, I hope, been made, but this improvement (if conceded) bears no proportion to that which might, and would, have been effected, if a proper repository had been provided. Even if the new repository for the reception of the Records were commenced at the earliest practicable period, the time which must necessarily elapse before the completion of the building will leave the public exposed to the con tinual hazard of that which, as it appears to me, ought to be considered as a very serious national calamity, viz., the destruction by fire of large portions of the whole collection of records; and I own that I cannot, without great uneasiness and alarm, contemplate the addition of delays which appear to me to be wholly unnecessary, to the delays which cannot be avoided. It is under these circumstances that my present appli cation is made to you, and I cannot help hoping that you will see reason to give early directions for providing a proper building for the deposit of the important public documents which constitute the Records of this king dom. It is the word only (if you should think it right MEMOIR OF HENRY LORD LANGDALE. 171 to pronounce it) which is wanting; for the subject and all its details have been under the careful consideration of the Board of Works, and of Mr. Barry, whose know ledge of the nature of the accommodation required, and whose long attention to the subject might, I should hope, be made available for the public, notwithstand ing the impracticability of finding that accommoda tion in the building preparing for the New Houses of Parliament. There are some important matters connected with the subject of this letter which I abstain from mentioning, only because they do not seem absolutely necessary for the consideration of the question, whether directions ought to be now given for erecting a proper building; and I am fully aware that I ought not to make any unnecessary demand upon your time. I have, &c. Langdale." On the 14th July following, Lord Langdale again pressed the subject of a General Record Office on the at tention of the Government in relation to the insecurity of the Rolls House and Carlton Ride. In a letter to Sir James Graham, then Secretary of State for the Home Department, of that date, his Lordship says : — " It is, I apprehend, perfectly clear, that neither of these buildings is or can be made properly secure for the purpose to which it is applied, and that no adequate security can be obtained without providing for the Pub lic Records a proper fire-proof building. Nothing else can be satisfactory. The subject requires the most 172 MEMOIR OF HENRY LORD LANGDALE. prompt attention; and on the 20th of May last I ad dressed a letter concerning it to Sir Robert Peel. I therefore hope that the insecure state of the Records is under his consideration. The Lords of the Treasury were apprized of the very perilous state of the Carlton Ride in the month of De cember, 1843, and I believe that since that time every thing likely to diminish the danger of that building has been done. The dangerous state of the Rolls House was subsequently discovered; and it appears that at this time some diminution of the dangers may be effected by means of the works pointed out by Mr. Braidwood. I very much regret that so much expense has been incurred, and may be incurred, in producing imperfect remedies and make-shifts, whilst the great and only effectual security is delayed ; but it appears to me to be better to incur such expense than to leave the Records for any time whatever with less security than it is prac ticable to obtain for them. I beg leave to express the great satisfaction which it affords to me to observe the interest which you have taken in the safety ofthe Records, and I hope that you will excuse me for intimating the responsibility which must attach to me, and to all who have any duty to perform in this matter, if, after the knowledge acquired and notwithstanding every precaution which can now be taken by those who have the immediate charge of the Records, an irreparable loss should be occasioned by an accidental fire." On the 9th of August, Lord Langdale received an answer to the letter he had addressed to Sir Robert MEMOIR OF HENRY LORD LANGDALE. 173 Peel, which he, as First Lord of the Treasury, had laid before the Treasury Board. Their Lordships intimated that, after full consultation with the architect of the Victoria Tower, they were not satisfied as to the pro priety of altering the destination of that tower for the reception of the Public Records; and they waive the consideration of erecting a Public Record Office on the Rolls estate on account of the expense, &c. To this letter Lord Langdale sent the following reply, addressed to John Young, Esq., Secretary to the Trea sury : — Rolls House, Aug. 16th, 1845. "SIR, s " I have to acknowledge the receipt of your letter dated the 9th instant, communicating to me the answer of the Lords Commissioners of Her Majesty's Treasury to the letter which I addressed to Sir Robert Peel on the 20th day of May last. It is gratifying to me to be assured that their Lord ships concur with me as to the importance of having provision made as speedily as possible for the safe cus tody of the Public Records. Their Lordships, however, state, that ' after full con sultation with the architect they are not satisfied as to the propriety of altering the destination ' of the Victoria Tower; and that waiving ' the consideration of the heavy expense which would be incurred by enlarging the Rolls Estate, and erecting upon it a building calcu lated to contain all the Records which now exist, or which may accumulate for some years to come, my Lords consider it most advisable to adhere to the plan of ap- 174 MEMOIR OF HENRY LORD LANGDALE. plying the Victoria Tower, and certain adjacent parts of the New Houses of Parliament, to the accommodation of the Public Records ;' but that if I ' should be of opinion that the space thus assigned will not suffice, my Lords would suggest whether some classification of Records might not be made, which, without interfering with the unity of superintendence, might rather facilitate refer ence, by placing one or more classes in separate build ings in the neighbourhood of the general repository ' i.e. (I presume), the Victoria Tower. I should be extremely sorry to misunderstand the meaning of their Lordships, and therefore I take the liberty of stating, that I conceive the purport of your letter to be, (1.) That the Victoria Tower and certain adjacent parts of the New Houses of Parliament are in tended to constitute, or be the site of the new Record Office; and, (2.) That if the space there assigned should not suffice, their Lordships suggest a division of the Records into classes, which may be placed in separate buildings, in the neighbourhood of the Victoria Tower. Of these two subjects, both of which are very im portant, the second is far more important than the first. I. Having understood that their Lordships had a decided preference for the Victoria Tower, and tbe adja cent parts of the New Houses of Parliament, as a site for the Record Office, and that sufficient space could there be found, I had ceased to trouble their Lordships on the subject. I was only anxious to assist, as far as I could, in making the necessary arrangements pursuant to the decision of their Lordships ; and I should not have revived the question, if the plan proposed by Mr. MEMOIR OF HENRY LORD LANGDALE. 175 Barry for providing proper accommodation in the roofs had not failed. It was by this circumstance alone that I was induced to attempt to obtain a reconsideration of the question. The reasons for placing the Record Office near the offices of the courts of law and equity still subsist. The fact that the Rolls Estate is the property of the Crown (the only reason for preferring that- to any other site in the same vicinity), still exists. The possibility of procuring another site in the same vicinity, by exchange for the Rolls Estate, or by money to arise from the sale of it, still remains. The inconveniences likely to arise from placing the Records at a distance from the ordinary and habitual resort of those who have the most frequent occasion to consult them, are by no means altered ; and it seems reasonable to presume, that in the erection of a great public work a careful Government would desire to consult public convenience to the greatest practicable extent. Nevertheless, I have always borne in mind the immi nent risk of destruction to which the Records are con stantly exposed, from the insecurity of the buildings in which they are now deposited; and that many inconve niences, though of a permanent nature, ought to be submitted to, in preference to the continuation of the present danger, for any time longer than can by any means be avoided. For the sake of procuring earlier safety, I before ceased to make any objection to the site of the Victoria Tower, and their Lordships now inform me that the Victoria Tower ' will be ready for the reception of 176 MEMOIR OF HENRY LORD LANGDALE. Records at an earlier period than any building that might now be commenced exclusively for that purpose could be completed, and consequently (that) the period during which the risk of fire will be incurred in the present building will be considerably shortened.' This fact, which I accept as such on the statement of their Lordships, though it is very contrary to the prior im pression which I had reason to think was well founded, must be my reason for admitting that, if all other requisites be provided, I ought not further to insist on any objection to the site and form of the Victoria Tower as a repository for the Records. I make the admission with great reluctance, and only on the ground stated by their Lordships, that by the adoption of the Victoria Tower, ' the period during which the risk of fire which is incurred in the present building will be considerably shortened.' II. But all other inconveniences, however great in themselves, are trifling in comparison with the incon veniences which must necessarily arise from the sug gested division of the Records into classes, to be placed in separate buildings, though in the neighbourhood of the general repository. When their Lordships mention separate buildings in the neighbourhood of the general repository, I presume that they mean to exclude the notion of buildings under the same roof as the buildings adjacent to the Vic toria Tower, or contiguous to it, or in immediate com munication with it ; and if it had not been for the terms in which the suggestion of your Lordships is stated, I should have scarcely thought it necessary to observe — MEMOIR OF HENRY LORD LANGDALE. 177 1. That the expense of erecting several buildings to answer a specified purpose must be greater than the expense of erecting one sufficient building for the same purpose. 2. That the unity of superintendence, and a proper control over the management of the Records, cannot by any means be rendered as efficient and useful in several buildings as in one building ; and, 3. That facility of reference cannot by any means be so efficiently secured in several buildings as in one build ing. And as to the reasons stated for the conclusion to which their Lordships have arrived, I beg leave to make the following observations — 1. The Victoria Tower has never, that I am aware of, been deemed sufficient to afford an adequate repo sitory for the Records, otherwise than upon the erro neous notion that large masses of the Records which ought to be preserved, might nevertheless be deemed to be of, what has been called, secondary importance, and might, as such, be stowed away or packed up in remote places of less convenient access. This great error has by no means been confined to those who have had the duty of inquiring into the amount of accommodation required ; it seems easily to occur to all who look at the question for the first time, and it has prevailed, and, as I believe, still prevails, in the minds of almost all persons who have not duly considered the subject in all its bearings. If there are any persons who resolve to decide upon the first and superficial view of the ques tion which leads to this error, without due inquiry and VOL. II. N 178 MEMOIR OF HENRY LORD LANGDALE. without attaining the knowledge which is within their reach, I cannot think them free from blame ; and the more so, because I have now so much reason to fear that the errors which are made as to stowing away and classi fying Records will ultimately induce, if it has not already induced, the Government to throw away this, probably the only, opportunity which may ever occur of placing the Records and Muniments of this kingdom on a proper footing, and under a proper system of management. 2. I concur with their Lordships in the opinion that, even upon the plan already announced, the Victoria Tower will afford to the Records much greater accom modation than has been afforded to them at any ante cedent period: and if the only object were to have something better than the present bad system, without considering how good a system might and ought to be established, their Lordships would have no occasion to trouble themselves further about the Records, and the public might be spared any further expense about them. What we have now, though bad, is very far superior to anything which has hitherto been had ; and undoubtedly the Victoria Tower, large as it is intended to be, and as free as it can practically be made from risk of fire, will be so great an improvement as to be accepted with gra titude by all who take an interest in the Records. But considering the disgraceful manner (for it is nothing else) in which the Records have heretofore been kept and managed, and the danger from fire to which they have been and now are continually exposed; consider ing also that the public object is to have the Records not only safely kept, but also properly accommodated, MEMOIR OF HENRY LORD LANGDALE. 179 arranged, and managed, and that the attainment of that object is now urgently and most justly demanded, and not difficult to accomplish, their Lordships must excuse me for saying that the adoption of an improved system which, notwithstanding the improvements, unnecessarily continues some of the principal defects in the old system, cannot be satisfactory to any reasonable mind. 3. I also concur with their Lordships in the opinion that deficiency of room is an evil which, from the rapid increase of Records, cannot, under any arrangement, ultimately be avoided. But admitting that no arrange ment which can be now made will prevent a deficiency of room for ever, their Lordships can hardly expect me to consider this as a sufficient reason for making no pro vision against deficiency of room for any time whatever, or as an available reason for making a repository, known to be defective even from its inception, or for making two or several repositories instead of one. I cannot omit this occasion of stating that, in my humble opinion, the subject has not even yet been suffi ciently considered; but I am perfectly aware that if their Lordships have finally determined what to do, or what to omit in this matter, I can have no hope, by any influence of mine, or by any reasons which I can offer, to induce them to bestow any further attention on the subject. I shall avail myself of such means as I may possess to relieve myself from the responsibility which I think will justly attach to those who, having the means and opportunity of securing a good system, do not hesitate to adopt a system manifestly defective, although N 2 180 MEMOIR OF HENRY LORD LANGDALE. it may be (as I think it is) much better than the bad system which has hitherto existed. Their Lordships seem to think that I have little, if anything, to do with the matter. They seem entirely to forget that upon the Master of the Rolls for the time being will fall the task and the responsibility of arranging the Records for future times in the repository which may be provided. The delays which have already taken place, and which seem likely to continue, will most probably cast this duty upon my successor, so that any hope which I might have entertained of being able to perform the duty myself, ought to be, as in fact it is, entirely removed from my consideration. But when the site and nature of the repository are settled, it will become an important duty, the perform ance of which should be immediately commenced, to make all the preparations which circumstances allow, to render the repository available as soon as it is ready, and to do everything practicable to diminish all the inconveniences which can, by proper arrangements, be guarded against. This duty it must be my endeavour to perform to the utmost extent which the means afforded me will allow. I cannot conceal from myself that their Lordships, whilst they observe the official forms of communication do not desire any co-operation with me. My opinions are formed with reference to my only objects, the due preservation, arrangement, and use of the Records, and upon such information as I have been able to acquire in the consideration of these only objects; and, founding MEMOIR OF HENRY LORD LANGDALE. 181 myself upon that information, I am of opinion that the Victoria Tower will not suffice, that is, will not be sufficient to provide for the Government and for the public all the advantages which ought to be secured by the proper arrangement, preservation, and management of the Records ; and as the suggestion of their Lordships is expressed to be contingent upon my opinion as to the sufficiency of the Tower, I should, notwithstanding the general objections to which I have referred, have now proceeded to consider in what manner the separation of the Records into classes, with a view to place sepa rate classes in separate buildings, could be made with the least practical inconvenience. But as their Lord ships have not desired, and do not appear to expect me to give any attention to the subject, I presume that they have formed and have already resolved to adopt some plan of their own; and I await the information which will be necessary to enable me to conform to their Lordships' determination, in the directions which I may have to give for the intermediate management of the Records, and the preparation of them for their final place of deposit. And with respect to the arrangement and fitting up of the repositories which their Lordships may think fit to provide, I presume to think that some communication ought to take place between the architect and the Record Office; and I request their Lordships to give such directions as to them may seem proper for that purpose. I have, &c, Langdale." 182 MEMOIR OF HENRY LORD LANGDALE. In reply to this letter, Sir Charles (then Mr.) Tre velyan, on the 27th of August, 1845, regrets Lord Langdale's objections to the Victoria Tower, and ex presses the desire of the Lords of the Treasury to co operate with his Lordship in all Record matters; but they preferred the Victoria Tower on account of the great expense of erecting another repository; they dis claim every feeling not consistent with the most perfect respect for his Lordship ; they sensibly feel the value of his Lordship's superior knowledge on Record subjects, and are thankful for the attention which, among his other numerous avocations, he has bestowed on them. MEMOIR OF HENRY LORD LANGDALE. 183 CHAPTER XII. FURTHER CORRESPONDENCE WITH THE GOVERNMENT. — A NEW BUILDING AT LAST DETERMINED ON. — C0MMEN0ED.-i-LORD LANGDALE'S RETIRE MENT. ADDRESS OF THE RECORD-KEEPERS. On the 22nd of August, 1846, Lord Langdale ad dressed Sir George Grey, then Secretary of State for the Home Department, on the subject of a General Record Office, in consequence of a motion in the House of Com mons by Mr. Protheroe (formerly one of the Record Commissioners), for the production of the correspon dence between the Master of the Rolls and Sir Robert Peel, in 1845; the letter is as follows: — Roehampton, August 22nd, 1846. "My dear Sir George, " It was not my intention to trouble you on the sub ject of the public Records till you were relieved from the extraordinary pressure of business towards the end of the session ; but finding from the votes of the House of Commons that a production of my correspondence with Sir Robert Peel during the year 1845 has been ordered, and observing the motion of which Mr. Pro theroe has given notice for the 25th instant, I hope you will excuse me for requesting your early and favourable 184 MEMOIR OF HENRY LORD LANGDALE. attention to the expediency of providing a new Record repository. The material facts relating to the subject are stated in my letter to Sir Robert Peel, dated the 20th of May, 1845. Subsequent occurrences have tended to strengthen the impression thereby intended to be conveyed, and there really is no doubt that for want of a proper Record repository — 1. The Records are now constantly and unnecessarily exposed to great risk of destruction by fire; and, 2. The process of preparing and arranging the Records for the most convenient use of the public is unnecessarily impeded, and indefinitely delayed. I will only add, that in an interview which I have lately had with Mr. Barry, I understood from him that his views as to the site of the new Record reposi tory have undergone considerable modification, and that, if required, he is ready to report upon the means by which a proper building, in a proper situation, may be most speedily obtained. I have, &c, Langdale." And on the 9th of November following, his Lord ship again addressed Sir George Grey to the following effect : — ¦ Rolls Court, Nov. 9th, 1846. " My dear Sir George, " I hope that you will not think me unduly importunate when I now take the liberty of most earnestly request ing your early and serious attention to the state of the public Records, and the weighty reasons which there are for providing a general repository for their preservation and use without any further delay. memoir of henry lord langdale. 185 I beg leave to refer to the statement of facts con tained in my letter to Sir Robert Peel, a copy of which you have. The Records still continue to be exposed to the same risk of destruction from fire and other casualties; and (from want of space and adequate means of arrange ment in dispersed repositories) the public is still with out many of the most important benefits which were justly expected to be secured by the Records Act. What has been done (under many disadvantages) has, nevertheless, been sufficient to show the utility and im portance of placing the public Records and Documents under a 'proper system of management. The state of the Records brought under the operation of the act is very greatly improved, and they are much more easily accessible than they ever were before. We have received into the Record Office many docu ments from other places of deposit in which they were exposed to still greater hazard of destruction. Many documents have been received from the Treasury, and many from the Admiralty; but our space is so confined, that at present we are not only unable to receive several documents which the Board of Admiralty has desired to send to us, but even the accruing Records of the courts of law, which ought to be annually sent to us. If you could be prevailed upon to make a visit to the Carlton Ride, which is not far from the Home Office, or to the Tower, or to the Rolls Chapel, you would, I think, be convinced, by a short inspection of the Records there, that my application on this subject is not unreasonable. I apply to you, because I consider the Record Office to 186 memoir of henry lord langdale. be under the special superintendence of the Home Office ; but if you think that I ought rather to make my appli cation to the Treasury, or to the Chancellor of the Exchequer, I will do so ; and I shall be most desirous to communicate every information that may be material in considering the subject in all its details. I remain, my dear Sir George, Ever faithfully and sincerely yours, Langdale." In 1847, under the sanction of the Metropolitan Im provement Commissioners, and with the assent of the Government, Mr. Pennethorne made a design for a Public Record Office, to be erected on a portion of the Rolls Estate. This building was to have been in con nexion with the formation of a new street, which was intended to be a central communication between the eastern and western parts of the metropolis, commencing in Long Acre, and extending to the west end of Cheap- side. But the great expense of carrying out Mr. Penne- thorne's plan, prevented its execution. Lord Langdale gave his unqualified approval of the site for the Record Office, which was entirely in conformity with the opinion he had expressed in a letter to the Treasury of the 4th October, 1842, but he did not entirely approve of some of the details of the building plan of the pro posed Repository. In November, 1847, the usual Par liamentary notices were given, that a Bill would be brought in during the ensuing Session, to carry the plan into execution ; but for some official reason, the mea sure was never proceeded with. ' memoir of henry lord langdale. 187 Whenever an opportunity occurred, Lord Langdale never failed to bring the subject of the necessity of a General Record Office before the Government, and to insist that the Rolls estate was not only the most proper locality for such an edifice, as being in the centre of legal business, but also the cheapest site that could be obtained, as nearly all the ground upon which it would be built, was already public property. Almost worn out by continual applications and exer tions about the erection of a General Record Repository during eleven years, Lord Langdale began to despair of seeing the accomplishment of his darling project; but the present Deputy Keeper (Sir Francis Palgrave) advised him to make one more attempt. It occurred to him (he said) that there had been much miscalculation, not only as to the space required for such a building, but also in the expense of its erection; and he accord ingly made a fresh calculation, which he submitted to Lord Langdale. His Lordship seeing there was much reason, and considerable judgment in what Sir Francis Palgrave brought forward, sent his statement to the Treasury accompanied by the following letter to Sir C. E. Trevelyan :— Rolls House, Jan. 8th, 1850, " Sir, " I beg leave to acquaint you, for the information of the Lords Commissioners of Her Majesty's Treasury, that I have received from Sir F. Palgrave the inclosed letter of the 14th December last, and the two plans which I send herewith. 188 memoir of henry lord langdale. It is so necessary for the safety and proper manage ment and use of the Records, that they should be col lected in one secure place, that I hope to be excused for again requesting the attention of their Lordships to the subject. What is wanted is a block of building, fire-proof, of sufficient dimensions, and containing such compartments and accommodation as are required for air, light, proper arrangement, and convenient access. The plan now suggested by Sir F. Palgrave is founded upon principles of the strictest economy, and is wholly unconnected with any other building scheme ; in the last particular it differs entirely from the plans which have been heretofore proposed for building a Record Office in connexion with the Houses of Parliament, the Courts of Justice, or any contemplated improvements of London or Westminster. I cannot judge whether a building erected on the pro posed plan would be sufficient for all the required pur poses; but in the hope that the long avowed intention and promise to build a Record Office are not abandoned, I think that this plan deserves great consideration ; and I hope that their Lordships will direct that it be con sidered in all its details by the officers of her Majesty's Commissioners of Woods, &c. ; and that, if approved by them, it will meet with the favourable consideration of their Lordships. I have the honour to be, Sir, Your obedient servant, Langdale." memoir of henry lord langdale. 189 Shortly after, the Lords of the Treasury intimated their intention to commence the building of the Repo sitory, so emphatically urged by Lord Langdale, and so long desired : the site to be the Rolls Estate, and the building to be comprehended within the boundaries of such estate, that site being in all respects the best and most convenient which the metropolis affords. Mr. Pennethorne was therefore ordered by the Board of Works to prepare plans for the immediate erection of a block of building capable of receiving all the Records now in the custody of the Master of the Rolls, or that would accrue for twenty years to come. The plans were executed, and approved of by Lord Langdale : the exca vations were even made for the foundations of the Repo sitory ; but alas ! another hand was destined to lay the first stone. — " Magnis tamen excidit ausis." On Tuesday the 26th of March, I saw Lord Langdale for the last time: he came to take his leave of the Record Department, which, it may be truly said, he had created, and which he regarded with parental affection : he felt an individual interest in the members of the establishment, and, perhaps, with some solitary excep tion, he was beloved and idolized in return. My parting with him will never be effaced from my mind. Through all the trials of my official life, which were not a few, he was the friend on whom I could rely for support and assistance. " Come to me," he has often said when I have been harassed and vexed, " let me hear all about your grievances, and if you are right, I will be your safety-valve ; if wrong, I will always advise you for the best," 190 memoir of henry lord langdale. My grief at parting with such a friend may be easily imagined, for I could not expect another to be to me what he had been. I shall never forget his agitated voice and moistened eye, as he responded to the regret I felt almost too keenly to express ; again and again he shook my hand, and said, " Don't be uneasy, this is not a final parting ; though I may no longer be your Master, yet I shall always remain your friend, and shall come and see you often, and you must come and see me. I will my self introduce you to my successor, and it will be your own fault if you do not make him feel an interest in you — not perhaps to the extent that I do — that you can hardly expect; but if you do your duty as you have hitherto done, you will win his confidence as you have done mine." After some conversation, of deep interest to me, though of no importance to the reader, I accompa nied him all over the Tower establishment, and he shook hands with and said good bye to every individual engaged in it. That day we parted, and I unhappily never saw him more. To the other Record Establishments he paid a similar visit, and left sorrow and regret behind him. When the excitement occasioned by his retirement had slightly subsided, the Assistant Keepers met,, and unanimously agreed that an address should be presented to him, as a testimonial of their deep respect and just appreciation of his character. The following address, drawn up by Mr. Hunter, was signed by all the chief officers, except one, who declined to place his signature with the rest. memoir of henry lord langdale. 191 " to the right honourable lord langdale, &c. " May it please your Lordship, " We, the undersigned, being Officers of the Public Records, who have so long enjoyed the benefit of your Lordship's vigilant superintendence, and just and pru dent direction of the affairs of our department, feel that we should be wanting in respect, and deficient in our duty, if we did not venture to express in a few words the deep regret with which we have received the infor mation that the time has arrived when that superin tendence and direction will no longer be continued to us. We cannot but recall, each of us for himself, instances of your Lordship's kind consideration. We cannot but collectively feel that we have received essential benefit from the firm and temperate manner in which this department of the Public Service has, when need were, been protected by your Lordship, and its reasonable claims supported. We cannot but regard your Lordship with the deepest respect and veneration, as having been the author of a new system of management of the Public Records of this nation; by which provision is made for their better security and more extended usefulness; a system, the value of which will be better understood as time passes on; so that distant generations will feel how much they are indebted to you. Nor can we forbear on this occa sion to speak of our concern that it has not been per mitted to you to witness the complete development of all that your Lordship has contemplated in respect of 192 memoir of henry lord langdale. the invaluable muniments of which, at so much personal sacrifice, you undertook the charge. May your Lordship, therefore, be pleased to accept this expression of sincere feeling from persons whose situation enabled them to form a just appreciation of your Lordship's eminent services in this department, and their most earnest wishes that, with renovated health, you may enjoy all comfort and happiness in the years which remain of a useful and honourable life. We are, with profound deference and respect, your Lordship's most faithful and devoted servants, (Signed) F. S. Thomas, Thomas Palmer, T. Duffus Hardy, Joseph Hunter, Henry Cole, Fred. Devon, Henry George Holden, Chas. Roberts, Willm. Henry Black, H. J. Sharpe. April 2nd, 1851." Lord Langdale replied by letter to Mr. Thomas, as follows : — Roehampton, April 5th, 1851. " My dear Sir, " I request you to convey to the Record Officers who have favoured me with so kind an address, the high gratification which I have received from this proof of their regard and good opinion. memoir of henry lord langdale. 193 It will always be a great pleasure to me, to remember that in using my best endeavours to lay the foundation of a system of Record management, which I hope will, in due time, be productive of great benefit, I have for so many years been associated with men of so much learning, ability, and industry. I remain, my dear Sir, Very truly yours, Langdale." vol. II. 194 memoir of henry lord langdale. CHAPTER XIII. LORD LANGDALE AS A TRUSTEE OF THE BRITISH MUSEUM. MEETS WITH AN ACCIDENT THERE. — APPOINTED ONE OE THE COMMISSIONERS OF INQUIRY. HIS SUGGESTIONS FOR THEIR REPORT. SURREPTI TIOUSLY PRINTED. SUGGESTIONS AS TO THE DEPARTMENT OF PRINTED BOOKS. — REFUSES TO SIGN THE REPORT OF THE COMMISSIONERS. HIS OPINION OF THE BRITISH MUSEUM AS A WHOLE. In addition to his onerous judicial duties at the Rolls and the Privy Council, Lord Langdale got through an in credible quantity of other public work. The great num ber of judgments he delivered, and of causes he determined in the fifteen years during which he presided at the Rolls, has already been mentioned. I have endeavoured to give some faint idea of his labours as the father of Record Reform, and I am now about to speak of his acts as Trustee and Commissioner of the British Museum. It is almost impossible to give a correct notion of his labours in each of these different and distinct branches of the public service; whatever he undertook he did thoroughly; heart and soul were in the subject before him; and as he never performed his work by deputy, the wonder is where he found time to accomplish all he did ; nothing but the adoption of a perfect system ena bled him to get through it. The great characteristic of his mind, the power of analysis, has been already men- memoir of henry lord langdale. 195 tioned, and this he brought to bear on all the questions submitted to his consideration. He always read with a pen in his hand, noting and commenting as he went along, and when he had got through the subject on which he was employed, he commenced an analysis which was continued until he had reduced it to its sim plest elements. I have been betrayed into these remarks by going through his memoranda connected with the British Museum, of which he was one of the official Trustees by virtue of his office of Master of the Rolls. He never missed a meeting of the Board of Trustees when the hour permitted his attendance,* and then he did not attend in order to learn his work, but to give his well-digested advice and opinion upon the matter to be considered. The Government knew their man when they selected him in 1848 from among the body of Trustees to be one of the Commissioners appointed to inquire into the British Museum. Though he was well aware that the Commission was not appointed in the spirit of hostility to the Trustees, yet during the continuance of the commission he thought * While attending a meeting of the Trustees, on Saturday, 14th October, 1844, and inspecting the new works then in progress, he fell and dislocated his shoulder. Dr. Paris, another of the Trustees, was luckily present, and immediately set the shoulder; as soon as the operation was performed, Lord Langdale, laughing, said that he should inform against him for acting in the capacity of a surgeon. Then, turning to the Bishop of London, he said, " You see, my Lord, what comes of following the Church too closely." The Bishop had been walking, when the accident happened, immediately in front of Lord Langdale, who was near-sighted. o 2 196 memoir of henry lord langdale. it would be unbecoming in him to attend the usual meetings of the Trustees, and he, therefore, absented himself from them, and attended those of the Com mission which were held at such times as he could be absent from his judicial duties, very much regretting that he could not attend the whole of them, for he felt a deep interest in the inquiry. Although he was present at five only of the sittings,* yet he never omitted reading the printed evidence as it was sent to him, and according to his usual habit, noted and commented on it as he went along, and then digested his notes ; he made indices to all the material points of the evidence, and compared the conflicting and harmonious portions of it ; he made references and cross references to every material fact elicited from the various witnesses; in fact, he pro duced a perfect analysis of every portion of the evidence (so that he could tell at once who had been examined, and what was the nature and purport of the evidence of each person), and of every parliamentary paper that had been referred to, or used during the inquiry; his notes and abstracts on this one subject are before me, and would fill a good-sized octavo volume. When the inquiry as to management was finished, Lord Langdale drew up, on the 4th of February, 1849, from his own digest, the following suggestions relative to a Report to the Government, and which he placed in the hands of the Lord Advocate for the use of the Com missioners. * He never could attend when the evidence was taken, as the Commission always sat for that purpose while he was engaged either at the Rolls or the Privy Council. MEMOIR OF HENRY LORD LANGDALE. 197 "By the act (26 Geo. II. c. 22) it is provided (sec. 20) that the several collections therein mentioned shall be preserved and maintained in one repository. That the whole shall be vested in the Trustees on trust, that a free access to the repository, and to the collections therein contained, should be given to all studious and curious persons, at such times, in such manner, and under such regulations for inspecting and consulting the collections as by the trustees should be limited for that purpose. The trustees are incorporated, with power to make bye-laws and to hold lands (sec. 14), And they are empowered (sec. 15), 1. To make and establish rules and ordinances for the custody, preservation, and inspection of every part of the collections. 2. To assign salaries and allowances to the officers and servants appointed to attend and assist in the care and preservation of the collections ; and 3. To suspend or remove any officer or servant for misconduct or neglect of duty. The Archbishop of Canterbury, the Lord Chancellor, and the Speaker of the House of Commons are trustees, gifted with peculiar powers, and are called the principal trustees. The principal librarian has committed to him chiefly, the care and custody of the repository. He is appointed by his Majesty, but is to be one of two persons, each of whom is recommended by the prin cipal trustees, or any two of them, as fit to execute the office (sec. 16). 198 MEMOIR OF HENRY LORD LANGDALE. The other officers and the servants, where attendance and assistance are necessary in the care and preserva tion of the repository, are appointed by the principal trustees, or any two of them. Neither the principal librarian (not named by that title, but described as the ' person to whom the care and custody of the repository is chiefly committed '), nor any other officer or servant is to be permitted to supply his place by deputy, unless in the case described (sec. 18). But the principal librarian (again not named, but de scribed as the ' person to whom the care and custody of the repository is chiefly committed ') is to be assisted by subordinate officers, appointed continually to assist him in the execution of his duty. Supposing the Secretaries of State to be three, the number of trustees was at first forty-two, viz., Official Trustees. . . . . . . .21 Family Trustees (Sloane, Cotton, Llarleian). . 6 Elected Trustees 15 42 To whom have since been added : — ¦ Two Official (Prs. of Antiquaries and R. Academy). . 2 One Royal Appointee 1 Three Family Trustees (Townley, Elgin, Knight). . 3 48 It seems deducible from the provisions of the act, that, subject to the rules made by the trustees, and the control to be exercised by them as occasion might re quire, the practical management and government of the establishment was intended to be vested in the principal MEMOIR OF HENRY LORD LANGDALE. 199 librarian (to whom the care and custody of the reposi tory was chiefly committed), and the subordinate officers and servants continually appointed to assist him in the execution of his duty. It does not appear that the practical management and government was intended to be vested in the trustees, or any of them. But they had expressly given to them the power of making laws and regulations, of assigning salaries (with reference, of course, to the sums with which they were entrusted) and of suspending or removing officers. To these powers are incident the power of inquisition, superintendence, and control, together with all other lawful powers required for the due consideration of what laws should be from time to time made, and how the authorities expressly vested in them ought to be ex ercised. These powers, if steadily and regularly exercised, would probably have been sufficient to secure a good management of the Museum by the principal librarian and the subordinate officers appointed to assist him in the execution of his duty. But their legitimate powers could not be steadily and regularly exercised by a body so numerous, or the ma jority of them, or even by a general meeting consisting of seven trustees, as allowed by the act 27 Geo. Ill,, c. 16. The appointment of what has been called a standing committee must have been very soon found to be neces sary. No mention is made of it in the rules of 1757 (Appendix, No. 9, p. 1), but in the orders and rules 200 MEMOIR OF HENRY LORD LANGDALE. 'of a more private nature' which were made in 1768 (Ib. p. 5), the standing committee seems to be spoken of as a thing established, its powers, and certain rules for its proceedings, are stated. No provision was made for the constant and regular attendance of the same trustees for any length of time, or even at any two consecutive meetings; and it was provided that all trustees at any time coming to the committee, should be of the committee, and that any three should be a quorum. On reading the evidence taken by the Commissioners, it appears that many and considerable inconveniences have crept into the management of the Museum ; and it seems probable that those inconveniences may, for the most part, be traced to a departure from the principles which were intended to be established when the institu tion was founded ; but whether that can be done or not, the remedy must, as it seems, be sought for, I. In the establishment of, or revival of an executive government, vested in one person solely responsible for the due execution of his duty, but assisted by a Council to whom he might readily and on all occasions resort for advice and assistance. II. In the establishment of a Committee of Trustees, a standing committee, elected and undertaking person ally to perform all those duties of superintendence, investigation, and control, which seem to be the proper and peculiar duties of the Trustees, as distinguished from the duties of practical management and executive government, which seem to be the proper and peculiar duties of a Governor or Director. MEMOIR OF HENRY LORD LANGDALE. 201 III. In providing better for the patronage or power of appointing all officers and servants. The details of a scheme of management cannot be finally settled or recommended, without further investi gation, and a fuller and clearer statement than has yet been made of the objects which are intended to be secured by means of the institution. But in the mean time it may be of some use to state, for the purposes of consideration and discussion, the general outlines of a scheme, the applicability of which may be inquired into and tested in the progress of the investigations which are now taking place. In the following suggestions, minute details have been purposely avoided. They are not proposed or in any way recommended for adoption ; but stated only as aids to consideration and discussion in a matter of some complication ; and with a view to mark the distinction between the powers and duties of the Trustees, and the power and duties of the Officers. I. 1. The Principal Librarian might be Governor and Director of the Museum, the head of the executive department, responsible to the Trustees, but authorized to enforce the observance of all general rules established by the Trustees for the regulation of the establishment, and of every department therein. I. 2. He might be enabled to ask the advice and assistance of the Heads of Departments in all matters relating to the execution of any part of his duty. I. 3. He might keep a journal of his proceedings, and enter therein a note of all such matters as might be directed by the standing committee of Trustees. 202 MEMOIR OF HENRY LORD LANGDALE. I. 4. He might have under him and subject to his orders a secretary or Clerk, who might also act as Clerk to the standing committee of Trustees. I. 5. The heads of Departments might be Coun sellors of the Principal Librarian, and bound either together or severally, to give him such assistance as he might ask at their hands in any matter relating to the execution of any part of his duty. I. 6. They might be subject to the orders and di rections of the Principal Librarian in all matters which relate to the execution or performance of the general rules and orders established by the Trustees. I. 7. Each Head of a Department might (subject to such general rules and orders) have the general manage ment of his own department and be responsible for it. II. 1. A general meeting of the Trustees might be held annually for the purpose of electing a Standing Committee of Trustees for the ensuing year. II. 2. The members of the Standing Committee might be chosen from among the elected Trustees. II. 3. The Standing Committee might consist of [four or five] Trustees, three of whom might be a Quorum. II. 4. It might be provided that no Trustee should be chosen a member of the Standing Committee unless he would first undertake to attend regularly to the busi ness, unless hindered by some sufficient lawful occasion. [It should be observed that it is a working and not an amateur Committee which is wanting, and the allow ance of a small payment to each member of the Standing Committee, for every attendance upon a meeting of the Committee at the Museum, might not be objectionable.] MEMOIR OF FIENRY LORD LANGDALE. 203 II. 5. The Standing Committee might meet at the Museum at least once in every fortnight. II. 6. Any Trustee might be at liberty to be present at the meetings of the Standing Committee; but no Trustee (not a member of the Committee) need be allowed to have any vote in the transaction of the business of such Committee. II. 7. The Principal Librarian might attend the meetings of the Standing Committee, and have a seat at the board, unless the members of the Committee should, on some special occasions, and for special reasons, request him to withdraw during their delibe rations. II. 8. The Standing Committee might have authority to call general meetings of the Trustees on any occasion which might seem to require greater authority than had been committed to them. II. 9. Quere if it might not be expedient to enable the Trustees to elect from among themselves a certain number of Trustees, to be called by some such name as consulting or advising Trustees, consisting of Trustees distinguished for special or superior attainments in par ticular branches of knowledge, and for that reason capable of occasionally giving most valuable assistance to the Standing Committee, — and — II. 10. At the same time enabling and recommending the Standing Committee to ask the advice of, and to con sult with such Trustees whenever it should be thought expedient to do so. II. 11. The advice when given to be always entered in the minute-book, and reported to the next general 204 MEMOIR OF HENRY LORD LANGDALE. meeting of Trustees; but the Standing Committee not bound to act upon it. L— II. 1. Free communication, without form or ceremony, should be established between the Principal Librarian and the Heads of Departments; and, also, between the Principal Librarian and Heads of Departments on the one hand, and the Standing Committee on the other. Reports to be made verbally, or in writing, according to the nature and circumstances of each case ; but always in writing when required by the Standing Committee, or the Principal Librarian. 2. Wherever the business of a particular department is under the consideration of the Standing Committee, and in the absence of any special reason to the contrary, the Head of the Department should be present and allowed to state his opinion and advice before the adop tion of any resolution on the subject. III. 1. The Principal Librarian and the Heads of Depart ments might be appointed by her Majesty, subject to suspension by the Standing Committee, and to removal by the Trustees at a general meeting. 2. The subordinate officers in each department might be appointed by the Head of the Department, with the approbation of the Standing Committee, subject to sus pension by the Principal Librarian, and to removal by the Standing Committee. 3. The servants, workmen, &c. employed exclusively MEMOIR OF HENRY LORD LANGDALE. 205 in any department, might be appointed by the Head of the Department, subject to suspension by himself, and to removal by the Principal Librarian. 4. The Principal Librarian might appoint or remove the clerk or secretary with the approbation of the Stand ing Committee, and might have the appointment and removal of all other servants, workmen, &c, employed in the establishment." In July following the Chairman drew up a draft report, which was privately printed for the use of the Commissioners only, and a copy was confidentially sent to each for his suggestions. Lord Langdale's other occu pations preventing him from attending the meetings of the Commissioners to discuss its various heads, he sent instead some notes jon the papers to Lord Ellesmere, These notes, though like everything else that he wrote, exhibiting undeniable proof of Lord Langdale's close analysis of any subject that occupied his attention, could hardly be understood without the reader having both the draft and the printed Report before him. It may, there fore, be sufficient to quote what he says on the question of the Catalogue of Printed Books : P. 15. — " Considering how much investigation has taken place, and how much is said about the catalogue of printed books, it appears to me that a decided opinion ought to be expressed upon the question, whether the catalogue ought to be an alphabetical catalogue, with alphabetical index of subjects, or what is called a class catalogue. A full and accurate alphabetical catalogue, with suffi cient cross references, and a full and accurate alpha- 206 MEMOIR OF HENRY LORD LANGDALE. betical index of subjects, may be so constructed as to be of easy reference and universal use. I conceive that there are incontrovertible reasons why a classed catalogue (in the sense usually given to that expression) cannot be satisfactorily made : if made at all, it could not be for all time, or for any great length of time ; as Mr. Baber says, (App. 10, p. 11) it would not be extensively useful or frequently consulted. And considering what was done by the Royal Society with reference to the catalogue of their own books, it does not seem to be expedient to refer any such question to that learned body. A good alphabetical catalogue, with a good index of subjects, would furnish a safe foundation upon which might be constructed separate catalogues of particular portions of the library, or of particular classes of books, according to any system of classification which it might be desirable to adopt at any time." Lord Ellesmere the same day acknowledged with many obligations Lord Langdale's memoranda, and promised that they should all be attended to. In the beginning of August, Lord Langdale received the fol lowing memorandum, dated 30th July, from the Secre tary of the Commission, sent by direction of the Earl of Ellesmere, together with a revised copy of a portion of the intended Report ofthe Commissioners. July 30th, 1849. " It has been found impossible to prepare the Report of the British Museum Commission in time for presenta tion to her Majesty during the present Session of Parlia- MEMOIR OF HENRY LORD LANGDALE. 207 ment. The Chairman, much regretting the failure of his own endeavours, assisted as they have been most actively by many of his colleagues in this particular, wishes to avail himself of the opportunity it affords for further correction and completion. The draft of what is now in preparation will be circulated among the Mem bers of the Commission. The Chairman will be greatly obliged, if any of the Commissioners will return it to him, with any remarks, and with the intimation of their permission, conditional or unconditional, qualified or unqualified, to consider it as having the sanction of their signature, addressed to him, 18, Belgrave Square, and marked B. M. C. on the cover. The Chairman leaves England on the 6th of August, and expects to return early in September, when he hopes, if favoured with the assistance above requested, to be able to present the Report to Sir G. Grey. [Sent by the direction of the Earl of Ellesmere, J. Payne Collier, Secretary.] The Right Honourable Lord Langdale. Soon after the receipt of the foregoing memorandum and revised Report, Lord Langdale left town for the summer vacation ; and whilst he was in the country he saw by accident in the " Globe" newspaper ofthe 13th of August a pretended statement to the effect that a Re port had been agreed on, and included certain sugges tions, the particulars of which were given, and which were the identical propositions that Lord Langdale had drawn up and given to the Lord Advocate for the 208 MEMOIR OF HENRY LORD LANGDALE. use ofthe Commissioners. This circumstance led him to believe that his suggestions had been printed for the use of the Commissioners, and that a copy had improperly found its way to the " Observer " newspaper, from which the " Globe " had copied it; and he concluded that on his return home he should find a copy sent to him by the Commissioners. On reaching Roehampton on the 1 7th of September, and not finding the paper in question, he wrote to Mr. Collier, the secretary, to inquire about it. Mr. Collier replied the next day, stating that he had received nothing from any of Her Majesty's Commissioners on the British Museum, that had not been instantly trans mitted to his Lordship, and he intimated that he had forwarded nothing since the draft Report of fifty-one pages was sent, in the beginning of August, by com mand of the chairman, with the memorandum dated 30th July. Lord Langdale, however, was not satisfied, and con cluded that there was still some mistake, and that his own paper, which had evidently been printed for the use of the Commissioners, had, somehow or other, not reached him, for he felt quite sure that the Lord Ad vocate had not sent the suggestions in question to the newspaper, and, therefore, that his paper must have been printed. Mr. Collier, however, wrote in reply, saying that his Lordship might feel assured that no document had come, or should come into his hands, relating to the Commission on the British Museum, Avithout its instant transmission to his Lordship, and if there had been any irregularity, MEMOIR OF HENRY LORD LANGDALE. 209 he was not aware of it, and it did not arise with him. Lord Langdale, however, feeling that some irregu larity had been committed, which ought to be corrected, wrote the following letter to Lord Ellesmere : — Roehampton, Sept. 26th, 1849. " My dear Lord, " Early in August last Mr. Collier sent to me, by your direction, a printed copy of a portion of the in tended Report of the British Museum Commissioners. — It appears to be a new edition of the draft of that part of the Report which I had previously received, — and some short notes upon which I had taken the liberty of sending to your Lordship in July. Except these two papers (the draft as first framed, and the new edition), I have received no paper relating to the Report, since the evidence was closed. But whilst in the country, I saw, in the 'Globe' newspaper of Aug. 13th, a pretended statement (which I have since ascertained to have been copied from the ' Observer ' of the preceding day), to the effect that a report had been agreed on, and in cluded certain suggestions, the particulars of which were stated. The statement was so clumsily made that it did not seem calculated to mislead any one. But I was surprised to find that the particulars set forth were a true statement of some suggestions of my own, of which I gave the only copy which was ever made to the Lord Advocate, for the use of the Commissioners. The contents of the paper which I had duly received,- and the true copy of my own suggestions for discussion, VOL. II. p 210 MEMOIR OF HENRY LORD LANGDALE. though most erroneously pretended to be part of the Report, convince me that some other papers relating to the report, beside those which have been sent to me, have been circulated for the use of the Commissioners. On my return to this place I wrote to Mr. Collier, who assures me that he has received for circulation no papers relating to the Report, except the two which were sent to me, and to which I have referred; and that if any irregularity has taken place, it has not been his. I hazard no conjecture as to the means by which any paper, which ought to have been kept strictly private, found its way into the newspaper ; but the circumstances which I have stated, and the interest which I take in the subject of the Report, induce me to hope that your Lordship will excuse me for asking you to give direc tions that copies of all the papers relating to the Report which have been printed for the use of the Commis sioners, may be sent to me. I have the honour to be your Lordship's faithful and obedient servant, Langdale." To this Lord Ellesmere wrote to say that he did not believe that any papers have been yet in circulation other than those Lord Langdale admitted to have re ceived. Lord Ellesmere intimated that he had not seen any print of Lord Langdale's memoranda, and suggested that the pseudo-report which appeared in the newspapers might have been taken from some purloined fragments of the various papers which had been printed for the con venience of the Commissioners. Lord Langdale replied, thanking Lord Ellesmere for MEMOIR OF HENRY LORD LANGDALE. 211 the trouble he had taken to explain the matter, and for warded some short notes on a paper that he had recently received, " Department of Printed Books," many of the suggestions in which were embodied by the Commis sioners in their Report. The Report was completed and laid before Parliament in April, 1850, but Lord Langdale's name is not ap pended thereto. He refused to sign it, not because he was not fully acquainted with the evidence on which it was founded, for I have already stated that I have seen and carefully examined his digest and analysis of it, but because an opportunity had not been afforded to him of discussing every portion of the Report. And although he agreed to the portions relative to the management of the library, yet he had objections which he should have wished to discuss relative to the future schemes for the management of the Museum in general, and he was especially adverse to keeping the whole of the Natural History branch there. Lord Langdale, speaking of his refusal to sign the Report, said, that the first opportunity which should be afforded to him in the House of Lords, he should feel it incumbent on him to state publicly what his reasons were for declining to do so, and this was a duty he owed to himself and the officers of the Museum, who had been attacked, and of whose zeal, efficiency, and exertions for the public good, he could not speak in too high terms of praise and commendation. He thought, as a whole, that the British Museum was admirably managed, and conferred more honour on the nation than any other of her public institutions. p 2 212 MEMOIR OF HENRY LORD LANGDALE. CHAPTER XIV. THE REGISTRATION QUESTION. EARLY ACTS ON THE SUBJECT. SELECT COMMITTEE OF 1832. — MR. BICKERSTETH'S EVIDENCE. — LORD LANG DALE IS PLACED AT THE HEAD OF THE REGISTRATION AND CON VEYANCING COMMISSION. — THEIR REPORT ON REGISTRATION. The expediency of providing a system of registration of assurances affecting land in this country has long en gaged public attention; indeed for upwards of three centuries the minds of men have been more or less occu pied with the subject.* The earliest act which directly enforced the registra tion of deeds affecting lands was passed in the year 1535. In the year 1617, Sir Francis Bacon being then Lord Keeper, King James I. issued letters patent creating " The office of General Remembrancer of Matters of Record," the object of which seems to have been to assist purchasers and others in their searches, by establishing a central office in the metropolis, where the necessary information as to all matters of record likely to affect * The reader interested in the History of Registration in England, will find an elaborate paper on the subject by G. W. Sanders, Esq. Secretary to the Commission, as Appendix VI. to the first Report of the Commissioners. There is also appended to the same Report another paper by Mr. Sanders, on Registration in Belgium. MEMOIR OF HENRY LORD LANGDALE. 213 them might be obtained at once, instead of leaving them to explore the various offices or places throughout the country in which such matters then lay scattered. It does not seem to have contemplated the removal of the Records themselves to London, nor does it seem to have had for its object the compulsory enrolment of deeds and other matters which were not then subject by law to enrolment. The document, however, is of considerable importance, as affording evidence that so early as the reign of King James I. the want of a central office for the convenience of search was felt. During the interregnum the subject of registration was frequently brought before the Parliament; and after the Restoration, in the year 1669, a Committee ofthe House of Lords recommended that there should be a Bill of Registers for the future, and some steps were taken on the occasion, though nothing was effected on the subject. In 1703 the act of the 2nd and 3rd Anne, c. 4, passed for establishing a Registry in the West Riding of the county of York, and in 1707, the act of the 6th Anne, c. 35, extended the benefit of registration both to the East and West Riding; in the subsequent year the county of Middlesex was added to those places * where the law of registration prevailed, and in 1735 the North Riding of Yorkshire was admitted to the number of the register counties.f Since the passing of the act of 1735 no further por tion of England has been brought within the require ments of any law for registration; endeavours have * Stat. 7 Anne. c. 20. f Stat. 8 Geo. II. c. 7. 214 MEMOIR OF HENRY LORD LANGDALE. been made by other counties to procure local registers,* but without any favourable result. The fact that particular districts had thus obtained or attempted to obtain a local registration, seems to have again awakened the attention of the Legislature to the necessity of providing one general system of registra tion for the whole of England ; accordingly, on the 3rd of April, 1739, leave was given in the House of Com mons to bring in a Bill for the public registering of all deeds, conveyances, wills, and other incumbrances, that should be made of, or that may affect any honours, manors, lands, tenements, or hereditaments, within that part of Great Britain called England, wherein public registers are not already appointed by Act of Par liament. The Bill passed the House of Commons on the 21st of May following by a majority of ninety to twenty-six. It was read a second time in the House of Lords on the 25th of May, and on the 5th of June it was com mitted to a Committee of the whole House; and the judges were ordered to attend. In the meantime, the clerks ofthe enrolments in Chancery, who had previously, but in vain, petitioned the House of Commons against it, preferred their petition to the House of Lords, pray ing to be heard by counsel, which was granted — wit nesses were examined, and the Committee reported pro gress; and it was ordered that the judges do prepare and bring in a bill the next Session of Parliament. Two days afterwards the Parliament was prorogued. A bill was accordingly brought into the Lords in the * By Surrey in 1728; by Derby in 1732. MEMOIR OF HENRY LORD LANGDALE. 215 next Session, and was passed and was sent down to the Commons, but Parliament was prorogued before the Commons had time to pass the bill into a law. The subject of registration does not appear to have again attracted the attention of the Legislature until the year 1758, when attempts were simultaneously made to introduce a general registry for England, and a local registry for Northumberland; and a bill was intro duced into the House of Commons for the purpose, but it was lost on a division by a majority of one, the num bers being — Yeas, 34; Noes, 35. A petition was presented to the House of Commons in February, 1784, for leave to bring in a bill for the public registering of all deeds, wills, &c, in the county of Northumberland, but the bill was never brought in. Attempts were made in 1815 and 1816, but without success, to carry a measure for the public registering of all conveyances, wills, and incumbrances, that shall be made of, or that may affect any honours, manors, lands, or hereditaments within the several counties of England and Wales, except the counties of Middlesex and York. The next advance in favour of registration resulted from the Second Report of the Real Property Commis sioners published in 1830, arising out of the valuable suggestions by Mr. Tyrrell, and printed, though not pub lished by him, early in the year 1829. Not long after the appearance of Mr, Tyrrell's sugges tions the consideration of the whole subject was brought still more closely under the notice of the professional public by the circulation of one hundred and sixty-four 216 MEMOIR OF HENRY LORD LANGDALE. questions on Registration by the Real Property Commis sioners. Some of the questions are, perhaps, irrelevant, and others not very well directed ; and the appearance of so great a number of queries, which were by some per sons regarded as proofs of the doubtfulness, or at all events of the difficulties incident to registration, was far from creating, in the first instance, a favourable impres sion of the important measure of legal reform which the Commissioners had selected for the second grand division of their labours. These questions produced a pamphlet from Mr. Coote, in which he showed himself a decided opponent of regis tration. This was followed by others from Mr. Walters, Mr. Hodgkin, and Mr. Wood, in answer to Mr. Coote's objections ; and shortly afterwards Mr. Bellenden Ker and Mr. Humphry, brought forth their more expanded dis sertations on the same side. Not only professional persons but also landed pro prietors now entered into the question of registration ; and the controversy became so warm as to give rise to that celebrated article on the subject which appeared in the 101st number of the " Edinburgh Review." This article, powerful as it is in favour of registration, did not have the effect of quelling all opposition to regis tration, — on the contrary, numerous meetings were con vened, and a loud cry against it was raised by the legal Conservatives. However, many petitions in its favour were presented to the Houses of Parliament, in conse quence of which leave was given on the 16th of Decem ber, 1830, to bring in a Bill for establishing a General Memoir of henry lord langdale. 217 Register of all Deeds and Instruments affecting Real Property, but Parliament was dissolved before the Bill was read a second time. The Bill was renewed in the Parliament which met in 1831, and the second reading was postponed till the 22nd of February, 1832; it was handed over to a Select Committee to inquire into the subject, and among the witnesses examined was Mr. Henry Bickersteth, who gave evidence on the 10th of April, 1832, and whose evidence has been declared to be a treasury of profes sional knowledge and legislative wisdom. Speaking on the subject of the objections which had been raised against registration — viz., that by registration a man's necessities were made known to the world, he said — " The subject may deserve consideration with re ference to the party himself, with reference to his family, and with reference to other persons with whom he is dealing. With reference to the party himself, it is said to be very hard that all the world should know that he has charged his estate with a mortgage, and that his in terest in the estate ostensibly is to that extent diminished. The truth is, that concealment is, in almost all cases, highly prejudicial to the party himself. Every one must have seen unfortunate cases where individuals, the owners of large estates, in receipt of the rents, and hoping to conceal the heavy incumbrances with which the estates are really charged, have thought that they could most successfully do so by maintaining a style of living and expense corresponding, not with the real state of their fortune, but with the value of the estates ostensibly theirs. Such persons are engaged in a con- 218 MEMOIR of henry lord LANGDALE. stant course of duplicity ; they are always deceiving others — often themselves; and they go on recklessly spending money, and contracting fresh debts, till their means are exhausted, and their estates charged beyond the hope of redemption. An estate producing a rent of 10,000/. a-year, but charged with mortgages to the extent of 6000/., is worth no more than 4000/. a-year to the owner ; but if, as is too often the case, he has the foolish desire of concealing the mortgages, and the foolish vanity of maintaining what he calls his station in the world (meaning what would be his station if he had no mortgages) he will, as long as he can, go on living at the rate of 10,000/. a-year, aiding his reduced income by credit, and a succession of disgraceful shifts, till (every year involving him deeper) his 4000/. a-year is at length gone, and he has to depend upon his more prudent friends for the means of subsistence. It is not a system of registration that can prevent such vice and folly from occasionally happening ; but I am persuaded many of such instances are wholly occasioned, and many more greatly encouraged, by the hope of concealment in the parties themselves, and by the actual concealment of the charges from others, who are induced to give credit to a man's style of living, without a sufficient regard to the means by which it is supported." Mr. Bickersteth, after considering the subject with reference to the family of the party, proceeds — " As an instance of the effect of disclosures between the owner of the land and the persons with whom he is dealing, I would take the case which is often proposed, of a banker dealing with customers. I would suppose (as MEMOIR OF HENRY LORD LANGDALE. 219 the objection implies) that the credit of the banker mainly depends on the belief which is entertained, that the land which is ostensibly his is free from settlement or incumbrance. If, notwithstanding this belief, the estate is subject to settlement or mortgage, the question is, whether that fact ought to be disclosed ; whether the banker ought to be permitted to derive credit from land, which, although in his possession and ostensibly his, is really not his in full ownership, or for the full value. The supposed foundation of his credit being impaired, is the law to assist him in supporting a credit without foundation, by preventing the disclosure of facts so im portant to the customer? are the customers, who are so liable to be deceived, to be left under the delusions of a false credit, in order that the banker may have a chance, at their risk, of reinstating his affairs? Are they, under the sanction of the law, to be induced or per mitted, for want of knowledge, to continue a credit which it is admitted they would withdraw if they were acquainted with the truth? There can be but one answer to these questions, and concealment in such cases is so mischievous and disgraceful, that I am sure that no honourable banker would ever desire it. The gentlemen whose answer to the Commissioners is found in the Appendix to their Report, have, as I conceive, very justly said, ' that more mischief arises in the mercantile world from false appearances of property, and erroneous impressions as to the real circumstances of parties than from any other cause whatever.' And it is clear that if the law enables the banker to conceal his settlements and mortgages, it enables him to lay a snare for his 220 MEMOIR OF HENRY LORD LANGDALE. customers, and do that sort of mischief which the law ought to be very diligent to prevent. On the whole, therefore, I cannot consider the disclosure which would result as an objection to registration. On the con trary, I think it would be a collateral benefit of very great value. At present, a man may be the ostensible owner of land, and yet have little interest in it : great mischief may, and frequently does, proceed from this source. Registration would enable you to know the real interest of the ostensible owner, to the great advan tage of the community ; and, as I think, of the owner himself." Speaking on the mode of registration, he said: — "On reading the outline of a plan which has been circu lated by the Real Property Commissioners, I think it excellent as far as it goes ; but I observe, with regret, that it contains no proposal for the registration of matters relating to pedigrees, nor any provision for the formation of maps, or of indexes of the names of estates and lands, and of their owners. It is justly said to be impossible to describe with ease and accuracy without a map; and it may with equal truth be said to be impossible to refer to the registry of an estate without a map and without an index, in which its name, or the name of its owner, is to be found. In forming the necessary indexes, it is to be considered that the land alone is that which remains fixed in geographical position from age to age; that the names of the lands and the roads, fences, and even houses, are not subject to any such swift or considerable changes as would make it difficult to indicate them on maps already MEMOIR OF HENRY LORD LANGDALE. 221 formed, and when once formed easily renewed from time to time, when a sufficient number of changes should render it necessary; and that though the owners of many lands are continually changing, yet that the changes, under a system of registration, would always be indicated by the register itself. There can be no doubt that the due elaboration of a good plan and system will require great skill and know ledge, and very laborious and long-continued attention. This, therefore, in common with all other tasks which require the application of great knowledge and industry, is difficult ; but I apprehend that the difficulty will not be thought insuperable by any mind habituated to con template difficulties with a view to overcome them. Divide et impera : let the subject be considered with reference to a small district, or with reference even to manors, the court-rolls of which have been kept imper fectly, and so entirely without regard to the main object now in view: make the. district small enough, and it will be seen how easy it would be to make an accurate plan and list of every close of land it contains, with the name, form, and superficial contents of each — how easy, also, to record and render accessible, the evidence of all known facts affecting the title to each close. What in these respects is true of any one dis trict, is true of every other, and of all the districts into which the whole country may be divided ; and the regulations for making known the facts which ought to be known in relation to the matters in question, may be made as easily for the whole country as for any district within it." 222 MEMOIR OF HENRY LORD LANGDALE. The necessity for having a general registration of deeds for the simplification of the law of real property became obvious to the Government in the autumn of the year 1846, and Lord Langdale was requested by Lord John Russell, through the medium of the Lord Chancellor, to be the head of a Commission for that purpose, and also to name his fellow Commissioners himself. Though Lord Langdale considered registra tion as the one thing needful with a view to any reform in conveyancing, yet he hesitated and even declined to act in the proposed Commission, thinking that more good would be effected by a regular constituted and paid Board than by a body of unpaid Commissioners. By dint of persuasion, however, he consented to be the Chief Commissioner, but he left the choice of the rest to the Chancellor. The Commission was accordingly issued on the 18th of February, 1847. As in everything else that he undertook, Lord Lang dale was indefatigable in his attention to the subject. To say that he was present at every meeting of the Commissioners, and took a most active part in their proceedings would be giving but a faint idea of what he really did: it was not his nature to be a passive Commissioner, or a mere spectator of what was going on ; whatever he undertook, that he zealously and con scientiously performed. Any one seeing him occupied in any one of his oner ous duties, would have supposed that all his thoughts and all his time were devoted to that alone. In his Court, as Keeper -General of the Public Records, as MEMOIR OF HENRY LORD LANGDALE. 223 Trustee of the British Museum, as Chief Commissioner of Registration, the same remark would have been made, he was so entirely engrossed in the work before him, as to render it apparently impossible for him to have time or thought for anything else. His labours under the Registration and Conveyancing Commission resulted in the presentation of a voluminous and learned report to her Majesty, on the labours of the Commission relating to registration, but he was prepared to enter upon the other branch of the subject referred to in the Commission, viz., the simplification of the forms of conveyance, when illness and death overtook him. The surviving Commissioners are un happy in having lost a colleague so admirably qualified to assist their labours and to bring them to a satisfac tory conclusion. 224 MEMOIR OF HENRY LORD LANGDALE, CHAPTER XV. LORD LANGDALE'S EVIDENCE BEFORE THE SELECT COMMITTEE OF THE HOUSE OF COMMONS ON FEES IN COURTS OF LAW AND EQUITY. HIS STRONG OPINION AGAINST THE RECEIPT OF FEES. THINKS A VIGILANT SUPERVISION OF PUBLIC OFFICERS NECESSARY. RECOM MENDS THE APPOINTMENT OF A MINISTER OF JUSTICE. On the 2nd of December, 1847, a Select Committee ofthe House of Commons was appointed to inquire into, and report to the House, on the taxation of suitors in the courts of law and equity, by the collection of fees, and of the amount thereof, and the mode of collection, and the appropriation of fees in the courts of law and equity, and in all inferior courts, and in the courts of special and general sessions in England and Wales, and in the Ecclesiastical courts, and courts of Admiralty; and as to the salaries and fees received by the officers of those courts, and whether any, and what, means could be adopted with a view of superintending and regulating the collection and appropriation thereof. Before this Committee Lord Langdale was examined on the 7th of February, 1848; the substance of the principal points in the evidence he delivered on the occa sion is as follows : — "I have long been of opinion that the courts and offices of law, so far as they depend on the organization, MEMOIR OF HENRY LORD LANGDALE. 225 establishment, and management of officers, ought to be treated like every other important department of Govern ment, and be paid by, and kept under the superinten dence and control of Government; and that there is no more reason for charging the particular expense of judi cial and legal services upon suitors, than there is for charging the expense of any other public services upon the particular persons who have occasion to apply to the Government for such services. The legal department is amongst the most important branches of Government. This establishment is main tained for the benefit not only of the particular persons who require remedies for the wrongs they have endured, but also for the common benefit and security of all who live under the protection of the law. It does not seem to me to be expedient, or even just, to charge the parti cular individuals who already are in distress by reason of the insufficiency or inefficiency of the law and the conduct of wrong-doers, with the further expense of maintaining the establishment by which the law is to be declared, and the wrong-doers are to be prevented from pursuing their course of injury. I think, therefore, that it is the proper duty of the Government to pay those expenses. It seems to me quite wrong to make any addition which can be avoided to the suffering already occasioned by the inadequacy of the laws. All judges, officers, and ministers should be paid by the public, and I think by salaries. What reason can be given why the suitors of the Court of Chancery should be charged with the salary of the Lord Chan cellor, with the salaries of two Vice-Chancellors, with VOL. II. Q 226 MEMOIR OF HENRY LORD LANGDALE. the salaries of the Masters, and of various other officers? I conceive that all these are officers and ministers which the Government is bound to provide ; they are employed in the most important public services, and I know no reason why the expense of them should be exclusively charged upon the suitors. All the salaries are not so charged. The salary of the Vice-Chancellor of England is paid out of the consolidated fund, so is that of the Master of the Rolls. When the Rolls estate was vested in the crown, the Government consented to an arrange ment by which the Master of the Rolls ceased to have even a nominal interest in fees. I think all salaries ought to be in like manner paid by the public; and further, that compensation paid to persons for losses occasioned by reforms or improvements ought also to be paid by the public, for whose benefit the reforms are made. It frequently happens that for the purpose of correcting abuses, and putting an end to unnecessary expenses, it is necessary to make changes by which indi viduals without 'having committed any fault, or any fault of which they could be aware, may be subjected to great losses, and perhaps be deprived of the only em ployment to which they have been accustomed from early life. They have passed their lives within the view of those who seem at least to have sanctioned the prac tices which grew up ; and when a reform is required and contemplated, and the known effect of it will be to de prive such persons as I have adverted to of their means of subsistence, I suppose that considerations of justice and mercy, and the interests of reform itself, will induce most men to conclude that a fair compensation ought to MEMOIR OF HENRY LORD LANGDALE. 227 be allowed: and if it be so concluded, should not the compensation be considered as the price paid for a public benefit — the benefit of that reform which your own sense of justice would not permit you to effect without paying the price? and should not the Government, which is the purchaser for the benefit of the public, discharge the purchase money? It is not thus, however, that compen sations for losses occasioned by reforms in the Court of Chancery have been provided for. If grievances have had to be there remedied by reforms causing losses, and requiring compensations, it has been necessary to pro long at least the pecuniary part of the grievance, in order to work out the compensations. I beg leave to mention the example of the late Six Clerks' Office. The constitution of that office was an undoubted grievance ; not only a grievance in itself, but it stood as an effectual obstacle against any effectual reform in some of the other offices. It was most important to get rid of it ; and, as I think, absolutely necessary to provide compensations for those whose emoluments, long sanctioned by acquiescent authority, were about to be taken away. The Government, however, would pay nothing, and would guarantee nothing, and, therefore, it became necessary to consider whether, for want of compensation, the intended reform should be abandoned, and the grievance left as it stood, or whether the com pensation should be provided by a temporary pecuniary burden on the suitors, so that the suitors might have the immediate benefit of so much of the reform as did not consist of mere pecuniary relief, and might after an in terval, and by slow degrees and successive steps, obtain q 2 228 MEMOIR OF HENRY LORD LANGDALE. that full measure of relief which might have been ob tained at once if this burden had not been imposed. Having been required to advise on that subject, I was then, as I am now, of opinion that it would be much wiser to continue for a time the expense (which I con sider to be a grievance), and let the burden gradually wear away as the compensations fell in, than to abandon an important reform, and permit the grievance to remain indefinitely without effectual remedy. A great outcry was, naturally enough, made by those who did not thoroughly understand the subject ; but there is reason to be well satisfied by the result. The business is trans acted in the reformed offices with incomparably greater efficiency and satisfaction ; the way to many other reforms is facilitated ; the fees which are taken from the suitors in the reformed offices are already less by 11,000/. a-year than the amount of fees levied in the unreformed office ; and the amount of the salaries paid to the new officers, of the large compensations paid to the old officers, and of other expenses, is already less by 5000/. a-year than the amount of the fees which were received by the old officers before the reform. Without affirming that the Act of Parliament provided the best mode of settling the compensations, and disapproving, as I do, of the com pensations being charged on the suitors, I can have no doubt that the reform has resulted in great benefit to the suitors. If the compensations had been paid by the Government, that benefit would, of course, have been much greater." He was of opinion that all the officers of the Court of Chancery, without exception, should be paid by salary MEMOIR OF HENRY LORD LANGDALE. 229 instead of by fees; and not only that no officers should be interested in any fee, but that no fee at all should be received ; for fees are in the nature of taxes. I have particularly called the reader's attention to this opinion, deliberately and solemnly pronounced be fore a Committee of the House of Commons, because his Lordship has lately been unjustly charged with a desire to put a tax upon historical knowledge by the imposi tion of fees. This matter has been already explained when noticing that part of his life connected with the Public Records. " But," continues his Lordship, " I have a greater objection to fees than I have to less disguised taxes, and more especially to fees in which the officers have an interest. I am fully persuaded that you cannot estab lish any system of fees in which the officers have an interest without leading to great abuses. There is no power by which you can prevent extortion in some shape or other, if you once allow officers to demand or to accept money for their own use: even good men have their weak moments, and, under some specious pretext, will be tempted to take something different, or something more than they ought to take; there will be something in the way of gratuity or civility-money, at first given as a token of gratitude, and accepted under a conscious ness of desert, but, in time, advances are made from hints to demands, till at length those who want a prompt service hardly venture to abstain from offers, which ought never to be made or accepted. I believe there is no way of avoiding abuses which grow up in this way, except by putting an end to the reception of fees, at least 230 MEMOIR OF HENRY LORD LANGDALE. fees in which officers are interested, altogether. The great excuse made for paying officers by fees is, that you have no other way of stimulating them to diligent exertion ; and, it must be admitted, that a man's pecu niary interest presses upon him so constantly and steadily throughout his whole life, that in the end it must have a very great and powerful influence. But it does not constitute the only motive to diligence ; the love of character and honourable distinction, and the security acquired by good conduct, are not without their effect; and by encouraging those officers who conduct themselves well, I believe you may have a more powerful and wholesome stimulus than any that exists at present under the system of fees ; — and, I may further observe, that a system of fees operates as a constant obstacle to progressive reforms which may in any manner interfere with the profit or revenue expected to be made by the officers." He also stated that he thought the due efficiency of offices might be secured by an active and vigorous super vision of the officers — that in the gradation of offices, as a general rule, every subordinate ought to be, to a consi derable extent, dependent upon his immediate superior; and that every superior ought, to a considerable extent, to be responsible for the conduct of his subordinates : that alone would have a very great effect in securing due diligence. If you want to prevent all spirit and energy, and all desire to obtain credit by good service, you have only to make every officer wholly independent of his superior ; arrange matters so that by the course of the office every officer, unless he is guilty of some great MEMOIR OF HENRY LORD LANGDALE. 231 offence, shall without any diligence, or activity, or energy, be sure to rise in regular succession, you then have an effectual recipe for negligence and inefficient service. He thought that the head of every office should at tend to the merits, characters, and conduct of the indivi duals in that office; and advance them by degrees, or recommend them to advancement, according to their merit upon all occasions. For the purpose of securing the efficiency of officers he thought that a superintendence over the officers, and the whole establishment, is continually wanted, by a proper person who may go about making inquiries and receiving information ; and that there ought to be some persons connected with the Government who should have the superintendence of the Courts of Justice, just as Government ought to have and exercise the superin tendence of all other departments where the most efficient and active service is required. Lord Tenterden once spoke of the Parliament, or of the Government, as magnas inter opes inops, and when we look at the vast resources of the Government, and the small and inadequate means of securing some things equally im portant to justice and legislation, there seems to be con siderable truth in the expression. No steady and regular superintendence is exercised; no machinery for it is provided; the Courts of Justice are left very much to chance; they go on as well as they can. If a complaint is made, that complaint is investigated and dealt with probably in a satisfactory manner, so far as relates to that complaint ; but there may be very many causes of 232 MEMOIR OF HENRY LORD LANGDALE. complaint, and no complainant, and no discovery, unless there be a vigilant superintendence, and an inquiry made by a proper authority. A cause of complaint de tected, and even corrected, is not so fertile of reform as it might and ought to be. You want an office of Go vernment in which the affairs of justice should be the particular object of attention. You want a person who can at all times be ready to apply himself to the investi gation of all things relating to the conduct of officers of justice ; and unless you have that, you are and must be without some of the benefits which the Government might well secure for the country. He thought that in the absence of any Government officer, you might charge some one of the Judges of the Court of Chancery with the superintendence of the offices ; he might have the assistance of a clerk, or some other person, perhaps the solicitor to the Suitors' Fund, but it should be some person under his direction, who should have the opportunity of going about and col lecting all proper information, and making all inquiries that are necessary; and unless there be some single au thority which by its position might have sufficient weight you would do but little ; if you had several di vided authorities you would have no effectual supervision. He thought that such an officer might be called, without any prejudice to our usual habits, the Secretary of State for the affairs of Justice, and he might be charged with the whole superintendence over the esta* blishment and organization of the Courts, their official arrangements, and everything belonging to them except matters judicial. MEMOIR OF HENRY LORD LANGDALE. 233 He thought the supervision of this officer should have in view two objects ; the one, the discipline, management, and official arrangements of the legal and judicial de partments; and the other, distinct from, though closely connected with, the first, the collecting and arranging of all that sort of information which is requisite to enable the Houses of Parliament to legislate with pru dence and caution. If such an officer should not be appointed, he thought that a judge, with such assistance as he required, might contrive that all business should be so recorded that there should be an accurate statement of all that was done, to the extent at least of enabling him, with the knowledge which he might always possess of the nature of the business, to see with tolerable accuracy what was from time to time doing in each office, and whether the duties were regularly performed, and the accounts were duly kept; and he would be in constant intercourse with the officers; and superintendence might go to a considerable extent, though by no means to that efficient extent that might be wished. Speaking again on the subject of having a Secretary of State for the affairs of Justice, he said, " I must be allowed to say, that judges have not the leisure, and in my opinion are not the persons who ought to legislate even in matters of practice. Important general orders and regulations ought to be framed and sanctioned by another authority, after advising with the judges, and hearing from them all the suggestions which they have to make, or all the reasons that they have to offer; but it is not in their proper function to make the law, even 234 MEMOIR OF HENRY LORD LANGDALE. of practice ; at present I know they are the only persons to do it, and upon whom Parliament has imposed the duty by giving the power. For the most part they have been willing to do what they can in performance of that duty, but it takes them away from their more proper business. " I believe," he continued, " that you cannot work out a system of safe and rational law -reform without an authority of the kind of a Secretary of State for the affairs of Justice, who should have a superintendence over all the Courts, and every branch of the law; for everything connected with the law requires to be sub jected to proper inquiry and authority, and everything which ought to be laid before Parliament should be laid before it regularly and officially, in order that it may usefully consider what may from time to time be proper to be done, and how best to do it. It is often necessary to distinguish and consider what ought never to be tried without enactment, and what ought rather to be attempted by cautious and vigilantly superintended experiment. Those who consider this subject most attentively will be best aware how difficult it is to make laws or establish rules of practice, how much information is required, and what precautions are to be used, and how necessary it is that Parliament should be constantly supplied with the fullest and most accurate information upon all those subjects which are required for making and improving laws upon a steady and safe principle. I conceive that Parliament has great need of the assist ance of competent persons, whose whole attention should be devoted to this subject." MEMOIR OF HENRY LORD LANGDALE. 235 Lord Langdale felt so strongly the necessity of having a Minister of Justice, that I cannot do better than lay before the reader the heads of a paper he sketched on the subject shortly before his death : — LORD KEEPER, MINISTER OF JUSTICE AND LEGISLATION. 1. To keep, use, and apply, the Great Seal. 2. To act as President of the Council in all matters not judicial. 3. To exercise a constant and vigilant superintend ence over the state of the law, and the proceedings of the Courts ; and for that purpose to maintain a constant correspondence with all Judges, Justices, and Officers of Justice, in relation to their several offices, duties, and acts. 4. To analyze, arrange, and register all letters and applications of an official character, or which relate to matters within the competency of the Lord Keeper. 5, To inquire into and ascertain the merits of all complaints made of neglect or irregularity in the admi nistration of justice, and make such representation, or report thereon, as the occasion may require, for the redress of any grievance. 6. To superintend, and give provisional and tem porary sanction to the general orders from time to time made by Courts of Justice, for the regulation of prac tice and pleading, for the alteration of fees, and for the employment and duties of ministerial officers. 7. To report quarterly to the Queen the state of the administration of Civil and Criminal Justice; the pro ceedings of the several Courts; the business therein 236 MEMOIR OF HENRY LORD LANGDALE. transacted; the new regulations made; any inconve niences which have occurred in the administration; what remedies have been suggested, and ought to be applied. 8. To execute all inquiries into the state of the law, or of any particular parts thereof, on the requisition of Government or of either House of Parliament. 9. To prepare all Bills brought into either House of Parliament with the sanction of Government; and to annex to the draft of every such Bill a statement of the reasons on which it is founded and intended to be pro moted. 10. To prepare, or state his opinion upon, all Bills which may be referred to him for either of those pur poses by either House of Parliament. 11. To regulate and fix the assizes and the rotation of Judges to attend the same, and also to inquire into and report upon the expediency of issuing Special Com missions when required. 3 & 4 Gul. IV. c. 71. 12. To keep a registry and account of all persons confined in prison, for debt or offences, before and after judgment or trial, with a short summary of each case. 13. To direct the Attorney or Solicitor-General to prosecute such offences as are to be prosecuted by the Government, and to file such informations in Courts of Equity, as he shall think fit to direct. 14. To give his advice to the Government on all applications for rank at the bar, or for offices in the Courts of Law and Equity. 15. To advise the Government upon, and be respon sible for all legal appointments. MEMOIR OF HENRY LORD LANGDALE. 237 16. To inquire into and report upon the claims of Judges and Ministerial Officers of Justice, in consequence of infirmity or long service. 17. After communication with the Judges of the several Courts, and in concurrence with the Master of the Rolls, to make regulations for the preservation and use of the Records of the several Courts of Justice. 18. To receive and submit to the Queen all petitions for pardon and commutation of punishment. 19. After communication and consultation with the Judges, and with the Treasurers of the Inns of Court, to prepare and submit to Parliament such rules as he may think proper for the admission and discipline of bar risters. 20. After communication and consultation with the Judges and the Chairman of the Incorporated Law Society, to prepare and submit to Parliament such rules and regulations as he may think proper for the admis sion and discipline of attorneys and solicitors. 1 Vict. c. 56. 21. To keep and make up an account of all the expenses incurred by the Government in the affairs of justice and legislation, and to prepare the estimates thereof for the future. 22. To keep a registry of all the acts and proceedings of the office. 238 MEMOIR OF HENRY LORD LANGDALE. CHAPTER XVI. ILLNESS OF THE LORD CHANCELLOR. SPEECH OF LORD LANGDALE ON THE SUBJECT. THE CHANCELLORSHIP PRESSED ON LORD LANGDALE. — DECLINED BY HIM. — BECOMES DEPUTY SPEAKER OF THE HOUSE OF LORDS. MEMOIR OF LORD COTTENHAM. THE GREAT SEAL AGAIN PUT IN COMMISSION. LORD LANDGALE CHIEF LORD COMMISSIONER. RECORD OF THE SITTINGS OF THE COMMISSIONERS. THE NEW CHANCELLOR. On the 28th June, 1849, Lord Brougham, in offering an explanation to the House of Peers, of his reasons for moving for an account of the number of causes then standing ready for hearing in the Court of Chancery, said he hoped that the Lord Chancellor, whose in disposition he sincerely lamented, would not attend a day sooner than his friends and medical attendants thought advisable in his Court, where no inconvenience had accrued from his absence. Lord Langdale, however, felt that great inconvenience had arisen, and immediately answered: — " I cannot concur with my noble and learned friend in thinking that no inconvenience whatever arises from the absence of the Lord Chancellor from the Court of Chan cery, from this House, and from the council of her Ma jesty. But as to the Court of Chancery, I believe that the inconvenience is much less than it is sometimes re presented to be; and probably it is (from the state of MEMOIR OF HENRY LORD LANGDALE. 239 business) much less than it would have been on any former occasion. It cannot be proper, but, on the con trary, would be very wrong, to hurry or disturb the Lord Chancellor in any way. His recovery, which is so much desired, might be retarded, and the public would for a longer time be deprived of the benefit of his much valued services. I hope that there will be no occasion to provide any substitute; but if it should be unfortunately necessary, I trust I may be excused for expressing my opinion that it will not be necessary, for that reason, to deprive the Lord Chancellor entirely of bis office, or even to appoint a commission. In the old time before the reign of Queen Elizabeth, when the Lord Chancellor was usually a bishop, and an active statesman and politician, when his absences were frequent, either on account of the business of his diocese, or from his employment on foreign embassies, or other public business, and when he must of course have been sometimes, as he may now be, disabled by indisposition, it was by no means uncommon to place the seal, with his consent, by the direction of the Crown, in the temporary possession of other persons, to be held and used for the Chancellor in his absence, and to be restored to him on his return or recovery. No change of Chancellor was thought necessary in con sequence of his temporary absence or disability; the occasion was provided for by committing the seal to the temporary and vicarious custody of a Keeper of the Seal, appointed for the occasion. But early in the reign of Queen Elizabeth,* the autho- * 5 Eliz. c. 18. 240 MEMOIR OF HENRY LORD LANGDALE. rity of a Keeper of the Great Seal was declared to be equal to the authority of the Chancellor; and consis tently with that enactment, two persons cannot be, one of them Chancellor and the other Keeper of the Great Seal at the same time. But still, as the authority of the Court of Chancery is vested in the person who holds the Great Seal — as the seal is held at the pleasure of the Crown — as the business attached to the seal ought not to suffer injurious interruption — as a temporary in disposition ought not to deprive the Crown and the public of the services of an experienced and valuable public servant for a longer time, or to a greater extent than is absolutely necessary, there seems to be no good reason why an easy provision should not be made for urgent occasions. If an occasion should occur in which (during a disability presumed temporary of the Lord Chancellor) the use of, or the authority given by pos session of the Seal, were urgently required, and neces sary for the public service, it appears to me that by the authority of the Queen, and with the consent c£*the Chancellor, a satisfactory arrangement might be made without a Commission, or any other than a temporary and conditional transfer of the Seal. I believe that in the profession of the law some person might be found so qualified, and so far trustworthy, that her Majesty, witn0^ the advice of her responsible advisers, including the Lord Chancellor, might properly intrust him with the temporary possession of the Seal for that particular occa sion, or for a short limited time, and who, for the public service, and from respect to, and for the ease of, the Chancellor, would be willing (without salary or hope of MEMOIR OF HENRY LORD LANGDALE. 241 pension, without fee or reward of any kind, or any patronage) to receive the seal conditionally for the par ticular occasion, or for a short limited time, and who having used it for the occasion or the limited time, would, by the direction of her Majesty, restore it to the Lord Chancellor either immediately, or at the end of a week or a day. Upon an emergency such as I am con templating, it is not necessary, nor is it becoming, to speculate upon a change of the Chancellor; provision for an emergency is not perhaps quite so easy to make as before the statute of Elizabeth, but still it is practi cable without any considerable inconvenience. By the authority of her Majesty, and with the consent of the Lord Chancellor, there may be temporary and vicarious possession of the seal, giving to the holder, for the time being, authority to exercise the legal and administrative, though not the political duties of the Chancellor." This speech gave some offence to the Lord Chancellor, though for what reason it is difficult to say. He was evi dently very sensitive about his illness, and wrote to Lord Langdale to assure him that he was almost well ; he also took the opportunity to say that he disagreed with the opinion which Lord Langdale had expressed about the vicarious custody of the Great Seal, and that it must have been confined to the ministerial and not to the judicial duties of the Chancellor. There is no question, however, that Lord Langdale was perfectly correct in his opinion, and the Chancellor entirely wrong. Shortly afterwards Lord Langdale waited on the Chancellor, who was much better and in good spirits, though looking very thin, and gave him several re- VOL. II. R 242 MEMOIR OF HENRY LORD LANGDALE. ferences from the Catalogue of the Lord Chancellors in proof of his assertion, with which the Chancellor seemed more satisfied. The long vacation appeared to restore the Chancellor's health for a time, but he did not enjoy the amendment long — indeed it was evident that his constitution was fast breaking up, and that it would be impossible for him to continue to hold the Seals much longer, and his resignation was daily expected : the consequence of this was, that all manner of reports were circulated, and among them was one that Lord Langdale was to be forthwith appointed Lord Chancellor. Upon hearing this he said, on the 12th November, — " Lord John must be persuasive, indeed, to be able to induce me to take the Seals ; I should certainly refuse them if they should be offered to me, unless they were accompanied with an assurance that the Government would support me in my plan to divide the office of Chancellor." Lord Cottenham's health did not improve, but he did not feel any inclination to resign his office as long as there was any possibility of his holding it ; meanwhile the report became even more current than before that Lord Langdale was to have the custody of the Great Seal; and it was even said that it had been offered to him, and had been refused : upon which Lord Lyndhurst wrote the following letter to him : — " My dear Langdale, " I am told that nothing will induce you to accept the Great Seal : I do not believe it. You are not a man to prefer your ease and private interest to that of the MEMOIR OF HENRY LORD LANGDALE. 243 public. There is no person as Chancellor so well calcu lated to complete the reforms of the Court, every day becoming more necessary and urgent, as yourself. There is no object of more importance to the public welfare, or which, when accomplished, will redound more to the credit and honour of him by whom this great good shall be effected. Consider this well, and weigh it in all its bearings. Your sincere friend, (blind as a mole), Lyndhurst. Turville Park, April 5th." To this kind note he immediately returned the follow ing answer : — April 8th, 1850. " My dear Lord Lyndhurst, " I have received your kind and too flattering letter at a time little calculated to encourage dreams of ambi tion, whilst suffering under a rather severe attack of gout. Bearing in mind, as I always do, that it was from your spontaneous favour that I received the first step in the profession — a step which no other would have given me; and without which I must have remained in the position in which you first saw me, I always consider myself indebted to you for my subsequent progress, and, in some sort, accountable to you for the use which I ought to make of it. I would willingly open to you my whole mind on the subject on which you write, but sparing you that inflic tion, I wish to say that whatever may have been said r 2 244 MEMOIR OF HENRY LORD LANGDALE. about my refusing the Great Seal, it would be mere im pertinence for me to speak of it, as I have never had and have not now the least reason to think that it will ever be offered to me. Lord Brougham, by putting pos sible cases last year, and again lately, led me to say what he probably reported to you, that nothing would induce me to accept it : but this is all. Your note makes me wish to explain a little. I think that there is more reason than ever for vigorous and careful reforms in Chancery, especially as the desire for change grows predo minant, and seems to become very rash ; it will ultimately prevail; and, if not carefully guided, will very likely, with the evils, sweep away many of the most important advantages which the Court has hitherto secured to the country. The subject will not bear neglect; but I do not see how that which is required to be done can be done by any Chancellor, or by any one whose mind is stretched to its utmost power of useful exertion, by the performance of his ordinary official duties. I am, in deed, not less convinced now than I was in 1836, that a change in the office of Chancellor is absolutely necessary not only for the complete and satisfactory reform of the Court of Chancery, but generally for the reform of the law, and for the improvement of our mode and system of legislation. I cannot propose to trespass on your time, or that of your lectrice, so far as would be necessary to explain my views at length, — they vary very little from those I stated to the House of Lords in 1836. And after much reflection I have come to the conclu sion that it would require the greatest possible self-delu- MEMOIR OF HENRY LORD LANGDALE. 245 sion to induce any man to accept the office of Chancellor upon the notion that he could in that character accom plish the work which is now required. I hope the blindness which I deeply lament is approaching to a state which may admit of remedy, and that you only await the proper opportunity. L." The Lord Chancellor still continuing indisposed, the Lords Denman and Campbell were appointed Speakers of the House of Lords by her Majesty's Commission on the 18th of February, 1850; those noblemen being ab sent on the 21st of March, Lord Langdale was unani mously chosen Speaker pro tempore; he took his seat on the woolsack accordingly, and notified to the House that her Majesty had granted a Commission under the Great Seal appointing him Speaker of the House in the absence of the Lord Chancellor, and in the absence of the Lord Denman and the Lord Campbell, and the Commission having been read, Lord Langdale sat Speaker by virtue of the said Commission. Though report had given the custody of the Great Seal to Lord Langdale, yet it is clear, from his letter to Lord Lyndhurst, that up to the 8th of April no offer had been made to him. The Chancellor's continued indisposition placed the Government in an awkward position. They felt that it would be indecorous to press his resignation, though there was very little hope of his ever being able to resume his duties either in the House of Lords, the Cabinet, or the Court of Chancery ; but the Chancellor 246 MEMOIR OF HENRY LORD LANGDALE. was very tenacious of office, and moreover did not like to receive any assistance in any of his functions. Hope led him on from day to day, but his intentions to re commence his duties were constantly frustrated, and he was obliged at last to succumb. He wrote to the Master of the Rolls, and requested his assistance,* and Lord Langdale promised to perform all the duties he could for him, and he immediately wrote to the Premier the following note : — Rolls Court, Westminster, May 23rd, 1850. " My dear Lord John, " I am very sorry to learn from the Lord Chancellor that he finds himself unable to resume the performance of his duties on Monday next, as he expected. The principal difficulty which occurs in making a temporary arrangement, seems to arise from want of a law Lord in the confidence of Government, to take charge of the Government law bills in the House of Lords. I presume that Lord Campbell, if he could undertake the task, would be in all respects satisfactory to you, and I am, therefore, induced to take the liberty of saying, that if he can attend sufficiently for the purpose, and my services should be thought acceptable to the House, I would willingly undertake to perform * Lord Langdale called on the Chancellor on the 22nd of May, when the Chancellor told him that his physicians had unanimously agreed that if he attempted business again, it would certainly kill him : he had, therefore, written to Lord John Russell, requesting to see him, for the purpose of tendering his resignation. MEMOIR OF HENRY LORD LANGDALE. 247 all the formal business of Deputy Speaker during the Session, and so relieve Lord Campbell from every duty, except that which belongs to the law bills in which Government is interested, and enable him to arrange the times for their coming on, so far as is possible, in the manner most convenient to himself. I should be very glad to think that this offer would make it easier for you to secure the benefit of Lord Campbell's service in the present emergency. I am, dear Lord John, Your very faithful servant, Langdale." On the same day, however, Lord Cottenham sent in his resignation to the Cabinet, and dispatched a note to Lord Langdale, requesting to see him. At their inter view Lord Cottenham told him that he had sent in his resignation of the Great Seal, and that Lord John Russell had said that it was impossible to go on with any temporary expedients, and that a Chancellor must be named; he then said that he had been requested by Lord John to ascertain whether he (Lord Langdale) would take it if it were offered to him. " I think not," was the reply, " but I could not posi tively say." * This answer the Lord Chancellor communicated to * It seems from the following memoranda in Lord Langdale's note-book, that as early as the 16th of Dec. 1847, there was some rumour afloat of the probability of the Great Seal being offered to him : — 248 MEMOIR OF HENRY LORD LANGDALE. Lord John Russell, who immediately sent the following short note to Lord Langdale : — May 25th, 1850. " Dear Lord Langdale, " I shall be very glad if I can see you to-morrow, Sunday. Perhaps you would be so good as to come to Pembroke Lodge about four o'clock, or three, if you prefer it. Yours truly, J. Russell." " Brougham returned with me from the Council Office, and, after some introduction, something like this conversation took place. It is in substance exact, though not always in the very words. Brougham. But you — what is to be done with you ? Langdale. Nothing. Brougham. Have you no views 1 Langdale. None whatever. Brougham. But you are in a position to be thought of. Langdale. It may be so ; but I want nothing, and look for nothing. In short, if you wish to know it, I have made up my mind not to part with my present office, for any other in existence. Brougham. "What, do you like it so much % Langdale. I am content with it, and will neither part with it for airy other, nor enter into the field of politics. / Brougham. Oh ! that 's nothing ! Cottenham makes nothing of " politics. Langdale. But I will take no office to which a political part is supposed to be attached. Brougham. And you have made up your mind % Langdale. Yes, on this occasion out of all question ; except that, as Master of the Rolls, it may be my duty to assist in any way I can in performing the duty of Chancellor for a limited time during the Chancellor's illness : for that purpose, I will do anything I can, with out salary, or patronage, or anything else — provided no political duty is imposed upon me. Brougham. You mean by being Commissioner 1 Langdale. I don't care how. There is more fuss than need be, MEMOIR OF HENRY LORD LANGDALE. 249 At this interview Lord John Russell, having obtained the Queen's sanction, made Lord Langdale the offer of the office of Lord Chancellor ; and Lord Langdale having respectfully declined it, he was requested to reconsider the matter. The following curious memorandum was the result of the reconsideration. It is written in his own hand, and was found among his papers after his death ; a fac or than used to be made in getting help for the Chancellor during occasional absence or illness. In old times (they are now very old), during occasional absence or illness of the Chancellor, the Seal used to be given to the Master of the Rolls, either alone, or with others, to hold for a few days till the Chancellor returned, or recovered, when it was given back to him. Brougham. What, without a Commission 1 Langdale. Yes. The Chancellor never ceased to be Chancellor, though he had a Deputy-Keeper of the Great Seal for a short time. Brougham. That would be very convenient if it could be done without any great ceremony. Here we came to the end of our journey, and I set him down in Grosvenor Square." Lord Langdale was quite right in what he stated about the Master of the Rolls having always, either separately or jointly with others, the custody of the Great Seal during the temporary absences of the Chancellor. Some scores of instances of this fact may be seen in Hardy's List of Chancellors, &c. In February, 1841, there was some talk of the Chancellor going into the country for a short time to recruit his health, and of putting the Great Seal into Commission, and Lord Langdale, I believe, told Lord Melbourne that there was no occasion for any thing of the sort ; that appeals might stand over for a short time, and the Seal might be delivered to the Master of the Rolls to hold for the Chan cellor, as in former times was always done when the Chancellor was ill or went abroad. Lord Melbourne intended to have followed Lord Langdale's suggestion, in case of necessity, but the Chancellor did not take the relaxation his health required. 250 MEMOIR OF HENRY LORD LANGDALE. simile has been made of it, as a specimen of his hand writing at that time. CONTRA. PRO. Persuasion that no one can per- Salary 14,000?. instead of 7000?. form all the duties that are Pension of 5000?. assured (in- annexed to the office of Chan- stead of 3750?. not assured). cellor. Patronage for benefit of con- Certainly that I cannot. nexions much needing it. Unwilling to seem to undertake Some, though small and doubt- duties, some of which must (as ful hope of effecting some 1 think) be necessarily neg- further reform in Chancery. lected. No reason to think that the ex tensive reform which I think necessary will meet with any support. No particular party zeal, and no capacity to acquire any. Declining health. Lord Cottenham did not live long after his resigna tion. He went abroad for his health. He died at Pietra Santa, in the Duchy of Lucca, on the 29th of April, 1851. He was the second son of Sir William Weller Pepys, Bart., a Master in Chancery, by Elizabeth, daughter of the Right Hon. William Dowdeswell, and was born on the 29th of April, 1781. He graduated from Trinity College, Cambridge, in 1803, as LL.B., and was admitted a member of Lincoln's Inn, on the 21st of January, 1801; he was called to the bar on the 23rd of November, 1804 — having studied law under the great lawyer, Sir Samuel Romilly, and Mr. Tidd, justly celebrated for his legal works. He was made King's Counsel in Michaelmas Term, 1826; and Soli citor-General to Queen Adelaide in 1830. He was re- MEMOIR OF HENRY LORD LANGDALE. 251 turned to Parliament for Higham Ferrars in July, 1831, and in October following for Malton, which borough he represented in 1832 and 1835. He became Solicitor- General to the King in February, 1834, when the honour of knighthood was conferred upon him. On the death of Sir John Leach in September, 1834, the Master ship of the Rolls was conferred upon him, and he was made one of the Commissioners of the Great Seal in April, 1835, upon the return of the Whigs to office at that time. On the 16th of January following he was appointed Lord Chancellor, and was created a Peer of the realm on the 20th of the same month. He held the office of Lord Chancellor until the 3rd of Sep tember, 1841, when he was superseded by Lord Lynd hurst, who was for the third time made Chancellor. On the return of the Liberal party to power in July, 1846, Lord. Cottenham became Chancellor a second time. His declining health rendered it advisable for him to resign the Great Seal in June, 1850, when he was raised to the rank of Earl. He married on the 30th of June, 1821, Caroline, daughter of William Wingfield, Esq., Master in Chancery, by whom he had sixteen children, twelve of whom survive him. Lord Cottenham was not celebrated while at the bar, either for his brilliancy as an advocate, or for his achievements as a practitioner, but he was a successful Judge, or rather an excellent Judge in appeal cases ; he made, however, but an indifferent one in original causes. He was cold and sedate in his manner, and seldom smiled or seemed pleased. His decisions were more remarkable for their sound common sense, than for legal 252 MEMOIR OF HENRY LORD LANGDALE. or subtle reasoning, and he had the rare faculty of stripping off all the technicalities of a case, and bring ing it within the apprehension of the commonest un derstanding. He was very jealous of his authority, and never forgot anything like an interference with it. He adhered to the liberal side of politics, and gave great moral weight to the Government in his judicial cha racter; but as a politician he was useless. He was not in his heart a true law reformer, and in more than one instance he was the cause of the miscarriage of im portant legal measures. When he was promoted to the Great Seal, Lord Melbourne required from him a statement of his pro posed Chancery Reform, as it was upon the express condition Of his bringing forward a great measure on that subject, that he was advanced to the Chancellor ship ; Lord Melbourne had also obtained from Mr. Bickersteth, and Sir R. M. Rolfe, statements of their views of Chancery Reform. That of Mr. Bickersteth is given at page 424 of the first volume. The following is Lord Cottenham's scheme, and upon it his Bills for the better administration of Justice in the Court of Chancery, and the Amendment of the Ap pellate Jurisdiction of the House of Lords and Privy Council, were founded. " The duties of the Lord Chancellor consist of three distinct and independent branches : — First, — His duties in the Court of Chancery. Second, — His duties as Speaker of the House of Lords, to which are necessarily attached the duties of presiding in all the judicial functions ofthe House. MEMOIR OF HENRY LORD LANGDALE. 253 Third, — His duties as a Minister, which include the duty of general superintendence over all the judicial estab lishments of the country t and watching over and attend ing to all bills brought into the House which affect any of the laws or legal establishments, and all the other Ministerial duties of the Great Seal. These several duties are obviously more than any one man can perform, not only in point of time and labour, but because the nature and great variety of the engagements materially interfere with the proper exercise of his judi cial functions. To effect a complete redress of all the evils which exist, it would be desirable — First — To appoint a permanent Judge to be at the head of the Court of Chancery. Second — To erect a permanent Court of Appeal to dispose of all the appeal business in the House of Lords, and in the Privy Council. Third — To constitute an officer, who as Keeper of the Great Seal, but without any judicial function, would execute all the other duties of the Lord Chancellor, to gether with such others connected with the general super intendence of the judicial establishments of the country as it might be found expedient to entrust to him. To effect this object to the extent of separating the Court of Chancery from the Great Seal, and appointing a permanent irremovable head of the Court, would not be attended with much difficulty. The necessity of such a measure is very generally admitted ; the state of business in the Court requires it, and such a measure would leave untouched the great 254 MEMOIR OF HENRY LORD LANGDALE. and much disputed question of separating the political from the judicial functions of the Great Seal. If such a measure should be effected, some important considerations would be to be entertained, as to whether there should be an appeal within the Court itself, or whether the appeal should not be from each of the three branches of that Court to the House of Lords direct, ex cept in certain interlocutory matters as to which there must be provided the means of immediate resort by way of appeal, to prevent fatal consequences in some instances of an erroneous order. If the reform should for the present not intend to separate the other judicial functions of the Great Seal from its political and other duties, still some improve ment in the manner in which the appeal business in the House of Lords is conducted, is absolutely necessary. In the Privy Council a great improvement would be effected by this change only, because the Lord Chancellor being released from the duties of the Court of Chancery would naturally assume the duty of constantly presiding in the Judicial Committee of the Privy Council, and the Court would thus obtain a regular judicial head, the want of which is at present its principal defect. It has been proposed by some that the judicial busi ness of the Privy Council should be transferred to the House of Lords, and by others, that the appeal business of the House of Lords should be transferred to the Judi cial Committee of the Privy Council. This, however, appears to be making a great apparent change without any adequate object. If the same judge with the same assessors should preside in the House of Lords, and in MEMOIR OF HENRY LORD LANGDALE. 255 the Privy Council, the whole object would be attained, and the appearance of any violent change would be avoided. The great difficulty is how to procure for the House of Lords proper assessors or assistants for the Chan cellor in hearing appeals. The present Judges could not give the necessary attendance, and there ought to be one eminent in Common Law, and one eminent in Scotch Law. Three such men would, with the Chan cellor for the time being, constitute an excellent Court of Appeal, but for this purpose a large expenditure would be required. Should this objection be insuper able, all that can be done will be to make certain of the Judges, all the Chiefs, and all the Equity Judges, and all Peers holding or having held judicial offices, a Com mittee to hear appeals, those who are not peers to give their opinion but not to vote ; and to provide that the Chancellor and three others should be competent to act, and that this Committee might sit to hear Appeals during a prorogation. If the reform should be carried further, and the other judicial functions separated from the Great Seal, the head of this Committee of Appeal and of the judicial business of the Privy Council would be a permanent Judge, and this would, no doubt, be a great improvement; but it would leave the Keeper of the Great Seal with very important, but not very apparent, or even defined duties, and, in that case, the question would be whether such Keeper of the Seals should be a lawyer. The nature of his duties would make it de sirable, but a lawyer of the description fit for the office would require a large provision, and a retiring pension, 256 MEMOIR OF HENRY LORD LANGDALE. and this with duties so little defined, and so little ostensible, would be scarcely practicable; but, on the other hand, if such a Keeper of the Great Seal should not be a lawyer, the office of Chancellor would, in ap pearance, at least, if not in effect, be annihilated, rather than divided, and for such a change the public, probably, are not at present prepared ; whereas, if the separation of the Court of Chancery from the Great Seal should now be effected, and the constitution of the appellate jurisdiction improved, as suggested, though still under a removable Chancellor, the further most desirable alteration of making the head of the appellate jurisdiction irremovable, might, probably, after some little time be easily effected." Between Lord Cottenham and Lord Langdale there was at one time a want of cordiality on the part of the former, arising perhaps, in the first instance, from the comparisons made between them on their several ap pointments by the daily press, and which were nearly all in favour of the latter; and Lord Langdale's speech in the House of Lords, on the second reading of the bill for the better administration of justice in the Court of Chancery, by no means made him feel more kindly dis posed to the Master of the Rolls. Lord Langdale often regretted it extremely, as the want of frank communication between them diminished the chance of carrying many Chancery Reforms. Upon Lord Cottenham's return to office in 1846, a great deal of his reserve towards Lord Langdale disappeared, and he became much more friendly and confidential in his manner. MEMOIR OF HENRY LORD LANGDALE. 257 Few men would have hesitated to accept the offer of the highest office any civilian can attain to; and had Lord John given a promise that the Government would undertake to effect a separation between the judicial and political functions of the Chancellor, Lord Langdale, notwithstanding impaired health, and an increasing de sire for retirement, would have deemed it his duty to accept instead of declining the office. The Cabinet, however, not feeling itself strong enough to carry out such a measure, would not give a pledge, and his Lord ship's conscientious spirit would not allow him to under take duties which he had not the power to perform. If self urged him forward, conscience held him back, and he had the courage to refuse. Immediately he arrived at this conclusion, he sent the following letter to Lord John Russell. Rolls Court, May 27th, 1850. " My dear Lord John, " I have, as you requested, reconsidered the question which was the subject of our late conversation. Though much gratified to learn that the measures which, as I think, can alone be effectual for the reform of the Court of Chancery, are likely to meet with the favourable consideration of Government, I own that I am unable to alter the resolution to which I had arrived. I more than doubt whether any man can adequately perform the duties annexed to the office of Chancellor, but without venturing to say what any other might be able to do, I am sure that it would be impossible for me VOL. II. s 258 MEMOIR OF HENRY LORD LANGDALE. to perform them, and the impression must be my excuse and justification for declining to accept so high an honour, and so flattering a proof of the confidence you are disposed to place in me. Very truly yours, Langdale," Though Lord Langdale refused to accept the Lord Chancellorship/" he agreed, at Lord John Russell's ear nest solicitation, to become the Chief Lord Commis sioner of the Great Seal until the Government should be able to determine what steps to take in appointing a new Chancellor. Sir Lancelot Shadwell,f Vice-Chancellor of England, and Sir Robert Monsey Rolfe, one of the Barons of the Exchequer, were appointed as his colleagues. Thinking it may be interesting to the reader to have an account of the ceremonial of the creation of Lord Commissioners, I have ventured to lay before him the following official journal, kept by Mr. Sanders, at the desire of Lord Langdale, hoping it will answer the double purpose of amusement and precedent. * Lord Langdale's refusal to take the Chancellorship gave con siderable offence to the Cabinet — especially to one noble lord, who was " very angry, more angry indeed than he had a right to be, and laid it down as idleness." Lord Lyndhurst was also very urgent that Lord Langdale should take the Seal. f Vice-Chancellor Wigram, I believe, was intended to have been named Commissioner instead of Vice-Chancellor Shadwell, but he was unfortunately unable to work on account of the affection in his eyes. Lord Langdale, however, wrote to the Chancellor, suggesting that Mr. Pemberton Leigh should be appointed, with a Peerage ; but his politics the Chancellor thought were in the way. MEMOIR OF HENRY LORD LANGDALE. 259 " On the 19th of June, Lord Cottenham having de livered up the Great Seal to the Queen at Buckingham Palace, her Majesty immediately afterwards, and while it was in her own possession, ordered the Commission, which had been already made out, appointing Lord Langdale, Master of the Rolls, Sir Lancelot Shadwell, Vice-Chancellor of England, and Mr. Baron Rolfe, to be Lord Commissioners of the Great Seal, to be sealed with it. This having been done, her Majesty took the Seal into her hands, and in council delivered it to Lord Langdale as the First Commissioner. The two other Commissioners were present, and they all three knelt when the Great Seal was delivered, and afterwards kissed the Queen's hand; they were then sworn by the Clerk of the Council. The Commission was in triplicate, and each Commis sioner had a sealed copy delivered to him. Some time elapsing in sealing the Commission,* it was inquired of Lord Langdale if there would be any objec tion to delivering the Seal to him before the Commission was' sealed, so that the Queen might not be detained? Lord Langdale answered, that in his opinion it would be irregular to do so, and suggested that the unqualified delivery of the Great Seal to him would make him at * It took so much time to seal the Commissions, that the Queen appeared impatient. As her Majesty was delivering the Seal to Lord Langdale, it separated (it being in two parts, and not properly fastened together), and nearly fell to the ground ; upon which Her Majesty said, "It's very heavy." Every thing, on the occasion, seemed^'badly managed. There was no purse, or box, to put the Seal in, and Lord Langdale was obliged to take it away with him in brown paper. s 2 260 MEMOIR OF HENRY LORD LANGDALE. once Lord Chancellor or Lord Keeper.* Accordingly he did not receive the Seal till the Commission was sealed. Mr. Baron Rolfe, who was not a Privy Councillor, was not made one on the occasion, and therefore none of the Commissioners took a seat at the council table. They went separately to the Palace, each being at tended by his train-bearer only. In returning, Lord Langdale was also attended by the purse-bearer, who * In 1792, when Chief Baron Sir James Eyre, Mr. Justice Ashurst and Mr. Justice Wilson, were appointed Lords Commissioners, a similar oversight was all but committed. His Majesty had signified his pleasure to hold a Council for that purpose, and upon notice being sent to the Commissioners, the Chief Baron sent to the Under Secre tary of State, asking some question, which produced an inquiry, whether it was or was not necessary that the Commissions should be signed by his Majesty, and the Great Seal affixed to them previous to the delivery of the Great Seal into the hands of the Commis sioners. The officers in the Secretary of State's Office entertained doubts on the subject, and sent to the Chief Baron for information. His Lordship was positively certain it was absolutely necessary that the Commissions should be signed and sealed previous to the delivery of the Great Seal, and as an authority, stated that the delivery of the Seal was postponed for two days on the appointment of Lord Lough borough, Sir W.H. Ashurst, and Sir Beaumont Hotham, inl783, merely on account of a similar omission, notwithstanding their Lordships had been at St. James' to receive the same, and the custody of the Seal had been given up by the Chancellor. On receiving this information orders were immediately issued to the different clerks, directing every instrument necessary to the appointments to be prepared — the same were got ready before the King's return from Westminster where he had been to prorogue the Parliament, which was about half-past three o'clock, when Lord Chancellor Thurlow resigned the Great Seal to his Majesty at St. James's, and the same was soon after delivered to Sir James Eyre, as First Lord Commissioner, in the presence ofthe two other Lords Commissioners. MEMOIR OF HENRY LORD LANGDALE. 261 had carried the purse for Lord Cottenham to the Palace, and whom Lord Langdale retained in the same situ ation. They wore their long wigs and black silk gowns — the same costume as on a Levee. Their servants did not wear their state liveries. No change was made in any of the officers of the Great Seal. Lord Cottenham's secretaries and officers were all retained.* Thursday, the 20th of June. — The Lords Commis sioners were sworn in Court, in Lincoln's Inn Hall: Lord Crowhurst, Clerk of the Crown, administered the oath; Master Dowdeswell, the senior Master (in his long wig), held the book. The Commissioners did not wear their long wigs. Lord Langdale and Baron Rolfe then proceeded to hear Appeal motions ; the Vice-Chancellor of England retiring into his own Court to proceed with the business thereof. * The lay patronage of the Great Seal is held to be in the First Commissioner ; in some of the more modern Acts of Parliament, the Lord Chancellor is in the Interpretation Clause, declared to be the First Commissioner of the Great Seal. No lay patronage fell in during the continuance of the Commission. The ecclesiastical patronage is divided between the Commis sioners in any manner agreed upon between themselves. Lord Langdale presented the Rev. Laurence Ottley to the Rectory of Richmond, in Yorkshire ; Sir Lancelot Shadwell, his son, the Rev. Arthur Shadwell, to the Rectory of Langton, in Yorkshire. Mr. Baron Rolfe had the Rectory of Sharnford, in Leicestershire, allotted for his share of the patronage, but he did not present, preferring to leave it to Lord Truro, on an understanding that he was to receive from his Lordship a presentation to a living in Norfolk of equal value in exchange for it. 262 MEMOIR OF HENRY LORD LANGDALE. At one o'clock the Commissioners rose, and Lord Langdale went to the Queen's Drawing Room, at St. James's. He was attended by the chief Secretary at the Rolls, and his train-bearer, and wore his gold gown and gold waistcoat, and long wig. The Drawing-Room being held on the anniversary of Her Majesty's accession, and being considered in the nature of a Birth-day Drawing- Room, as no birth-day had been held, or was intended to be held during the season, the Secretary went in his black dress. Lord Langdale took neither the Seal nor the Mace to the Drawing-Room ; his servants wore their state liveries. Lord Langdale took the Seal home with him every evening to his house at Roehampton, and brought it back with him every morning into Court. When he went to the House of Lords it was taken with him there, and left in his private room, his Lordship refusing to have it placed on the woolsack. Friday, 21st June. — Lord Langdale acquainted the House of Lords that her Majesty had appointed him Speaker of the House, and Lord Denman and Campbell, Speakers in his absence; and moved that the commis sions be read, and they were read accordingly. He wore his black silk gown and bands whenever he sat as Speaker under this commission, but he did not wear his wig. In entering the House he was attended by his train-bearer, and preceded by the Mace; but he would not allow the Purse to be carried before him.* * Lord Langdale, on his appointment as First Commissioner became entitled to a new Purse for the Great Seal, and received one at the Rolls House on or soon after the 22nd of July, 1850. On the 13th of July, his Lordship and Baron Rolfe signed a warrant for pay- MEMOIR OF HENRY LORD LANGDALE. 263 His Lordship had previously acted, on several occa sions, as Deputy-Speaker of the House of Lords, under a commission appointing him to act as such in the absence of the Lord Chancellor, Lord Denman, and Lord Camp bell ; but that commission was superseded by the one above-mentioned; and two others were made out, — one appointing Lord Denman to act in Lord Langdale's absence, and the other appointing Lord Campbell to act in the absence of Lord Langdale and Lord Denman. When Lord Langdale sat as Deputy-Speaker under the previous commission, he wore neither robes nor wig, but he was preceded by the Mace. Saturday, 22nd June.* — Sir Lancelot ShadwelL and ment of 70?. to Miss Fennell for the same. He afterwards lent the Purse to Lord Truro, till a new one could be made for him. * The Lords Commissioners (before they actually received the Great Seal) caused returns to be made to them of the state of busi ness in the Lord Chancellor's Court. It appeared from the returns, that there were fourteen Appeal Motions— of which seven were from the V. C. of England, and five from V. C. Knight Bruce, and two from V. C. Wigram. There were none from the Master of the Rolls. That there were nine Appeal Petitions — of which eight were from the V. C. of England, and one from V. C. Knight Bruce. That there were sixty-two Re-hearings and Appeals — of which six were from the Master of the Rolls, sixteen from the V. C. of Eng land, twenty- six from V. C. Knight Bruce, and fourteen from the V. C. Wigram. That there were thirty-five Lunatic Petitions — of which nineteen were unopposed, and sixteen were opposed. And that besides these, there were thirteen which Lord Cottenham intended to dispose of before he delivered possession of the Seal. And there were two original Charity Petitions under the 5 & 6 Will. IV. c. 76. Under these circumstances, the Lords Commissioners determined 264 MEMOIR OF HENRY LORD LANGDALE. Baron Rolfe sat as Lords Commissioners in Lincoln's Inn Hall. Lord Langdale, as First Commissioner, received from Mr. Lenox Conyngham, the Chief Clerk at the Foreign Office, an under suite cabinet key, No. 1, i.e., a key that would open all the Government boxes, except the Cabinet boxes, his Lordship not being in the Cabinet. Monday, 24th June. — Lord Langdale and Baron to proceed first with the Appeal Motions, as being of the most pressing nature; and these were so arranged that Lord Langdale and Baron Rolfe were to hear those coming from V. C. Knight Bruce and V. C. Wigram. It so happened that the arrangement gave an equal number (seven) to each list. In consequence, however, of the illness of the V. C. of England, Lord Langdale and Baron Rolfe heard the Appeal Motions from all the Vice-Chancellors indiscriminately, and had finished the whole, with the exception of the last, when the Great Seal was taken from them. They disposed of all which they heard. Lord Langdale and Baron Rolfe also heard and disposed of the nineteen unopposed Lunatic Petitions. They did not reach the Re-hearings and Appeals; but, by their order, separate papers had been made out of these, by which Lord Langdale and Baron Rolfe were to hear all those coming from the V. C. of England, and a due proportion of those coming from the two other Vice-Chancellors, and the V. C. of England and Baron Rolfe were to hear all those coming from the Master of the Rolls, and the remaining portion of those coming from the two other Vice- Chancellors. And in thus arranging the papers, the time of setting clown the appeals was observed, so that they might come on accord ing to their priority, as far as conveniently consisted with the pro posed interchange of the Appellate Judges. It was intended that the Lords Commissioners should sit four days a-week — that is, Lord Langdale and Baron Rolfe two days, and Sir L. Shadwell and Baron Rolfe the other two days. The illness, however,' of Sir L. Shadwell prevented this from being carried into effect. MEMOIR OF HENRY LORD LANGDALE. 265 Rolfe sat as Lords Commissioners in Lincoln's Inn Hall. Sir Lancelot Shadwell was this day seized with a sudden and dangerous illness, which disqualified him from sitting again during the continuance of the com mission. Tuesday, 25th June, and Wednesday, 26th June. — Lord Langdale and Baron Rolfe sat as Lords Commis sioners in Lincoln's Inn Hall. Wednesday, 3rd July. — Lord Langdale went to the Queen's Levee, at St. James, to present the new Queen's Counsel, Mr. Peacock. Only three attended, Mr. Pea cock, Mr. Carpenter Rowe, and Mr. Greeves. Thursday, 4th July. — Lord Langdale and Baron Rolfe sat as Lords Commissioners in Lincoln's Inn Hall. Friday, 5th July Lord Langdale and Baron Rolfe sat as Lords Commissioners in Lincoln's Inn Hall. They heard Lunatic Petitions for the first time. The Queen's Sign Manual intrusting the Lords Com missioners with the care and custody of idiots and lunatics was dated the 19th of June, but was not received by Lord Langdale till some days after that date. It did not, like the Commission of the Great Seal, contain the words, " or any two of them." Another Sign Manual authorizing the Lords Com missioners to pass grants depending, was about the same time received by Lord Langdale, though the date was the 19th of June. Tuesday, 9th July, and Wednesday, 10th July. — Lord Langdale and Baron Rolfe sat as Lords Commis sioners in Lincoln's Inn Hall. 266 MEMOIR OF HENRY LORD LANGDALE. Thursday, 11th July. — Lord Langdale and Baron Rolfe met in Lincoln's Inn Hall, to sit as Lords Com missioners. On his arrival Lord Langdale found a letter from Chief Justice Wilde, acquainting him that he (the Chief Justice) had been selected to be Chan cellor. The Commissioners took their seats in Court, and finished hearing a part-heard case, but they did not commence any fresh business." No announcement of the intended change was made by Government to the Lords Commissioners ; but in the latter part of the day, letters arrived from the Clerk of the Council summoning the Lords Commissioners to attend a Council, on Saturday, the 13th, at Buckingham Palace, but not stating the reason for which their attendance was required. Presuming, however, that the object was the deliver ing up the Great Seal, Lord Langdale wrote to Lord John Russell the following letter : — House of Lords, 11th July, 1850. " My dear Lord John, " I learned this morning, from the ' Times ' news paper, that C. J. Wilde was appointed Chancellor, and since three o'clock I have received a summons to attend the Council on Saturday — I presume to deliver up the Seals, though the object is not stated. The consequence of receiving such late notice is, that a few judgments are in arrear. It may be possible, though with difficulty, to deliver them on Saturday morning — and we shall certainly do so if required — but it would be greatly more convenient to deliver them on MEMOIR OF HENRY LORD LANGDALE. 267 Monday morning, and the new Chancellor, whom I have seen, is quite willing, if you think fit so to arrange. Be so good as to tell me, as soon as you can, how it is to be. Very truly yours, Langdale." Lord Langdale heard nothing about delivering up the Seal till he was seated on the woolsack, when he received a note from Lord John Russell, offering a thousand apologies, and saying he had requested the Queen to hold a Council on Monday to receive the Seal. " Monday, 15th July. — Lord Langdale and Mr. Baron Rolfe sat, for the last time, as Lords Commissioners in Lincoln's Inn Hall, and delivered all the judgments in arrear, six in number : Mr. Baron Rolfe commenced, and delivered four; and Lord Langdale followed, and delivered two. They then rose and left the Court about half-past eleven o'clock. They afterwards attended the Council which was held at one o'clock at Buckingham Palace. They went separately, each wearing his long wig and black silk gown; Lord Langdale being attended by his train- bearer and the purse-bearer, and Baron Rolfe by his train-bearer. The Vice-Chancellor of England continuing seriously unwell did not go. Lord Langdale delivered the Great Seal to the Queen, in her Closet, where her Majesty was alone with Prince Albert.* * Lord Langdale said nothing could exceed the simplicity and grace of Her Majesty's manners on the occasion. There was no show of condescension ; her dress was quite plain, and her voice most silvery and sweet. 268 MEMOIR OF HENRY LORD LANGDALE. By some inadvertence Baron Rolfe did not accom pany Lord Langdale into the Closet, and was not present at the delivering up of the Great Seal. The Queen delivered the Great Seal to the new Chan cellor, not in the Closet, but in the Council Chamber. Lord Langdale returned from the Council unattended by the purse-bearer, and the same day wrote to Lord Palmerston, acquainting him that he had delivered up the Chancellor's key, with which he had been intrusted, to the Lord Chancellor — Sir Thomas Wilde. The new Chancellor was sworn in the next day in Lincoln's Inn Hall, and Lord Langdale attended, and held the book as Master of the Rolls." MEMOIR OF HENRY LORD LANGDALE. 269 CHAPTER XVII. THE gorham case argued before the committee of privy council. — the judgment drawn up and delivered BT LORD langdale. unjustifiable comments thereon. extracts from lord lang- dale's notes. Towards the close of Lord Langdale's life, it was his lot to have to adjudicate on one of the most important, and also one of the most painful cases which has been brought before a Court of Law in modern times- that of Gorham (Clerk) against the Bishop qf Exeter — on appeal to her Majesty in Council from the judgment of Sir Herbert Jenner Fust in the Arches' Court of Canter bury, praying that her Majesty would be pleased to refer the appeal to the Judicial Committee of the Privy Council. That remarkable case is too well known to render it necessary that any detailed explanation of the matter at issue should be given by me ; but the prominent part which he took in its decision, and the unmerited reproach which has been cast upon his Lordship and his brother Judges by the disappointed party, for the advice which they felt it their duty to tender to their Sovereign as Supreme Governor of the Church of England, render it unavoidable that the great question then settled should be here con- 270 MEMOIR OF HENRY LORD LANGDALE. cisely stated, and should be accompanied with a few observations on that memorable occurrence in Lord Langdale's professional life. The very important question at issue between the liti gant parties, when stated rather in a popular than in a technical manner, may fairly be said to have been as follows. Whether a bishop has a right to impose on his clergy a test of orthodoxy, beyond the distinct declara tion of doctrine contained in the Thirty-nine Articles of the Church of England, by requiring assent to impli cations of doctrine deduced from a few expressions of controverted meaning in the Liturgy ; and, consequently, whether he can claim to exclude a clerk from a benefice, on his declining to admit the Diocesan's private inter pretation of certain passages in the Formularies on the precise sense of which learned and pious divines have held conflicting opinions from the close of the reign of Elizabeth (possibly from the very commencement of the Reformation) to the present day. This, undoubtedly, was the one great question agitated between the contend ing parties, on appeal to the highest Court of Law, when stated in its general aspect. In its more parti cular form and circumstances, it was as follows. Mr. Gorham had been admitted, on the 6th of February, 1846, to the vicarage of St. Just-in Penwith, Cornwall, by the Bishop of Exeter, that living being in the gift of the Crown. He was presented by the same patron, in November, 1847, to the Vicarage of Brampford-Speke, Devonshire; but institution was refused, by the same Bishop, on the 21st of March, 1848, on the ground that after an examination of fifty-two hours Mr. Gorham had MEMOIR OF HENRY LORD LANGDALE. 271 declined to acknowledge on the requirement of the Bishop that it is the declared doctrine of the Church of England, that every infant duly baptized is, by the Sacrament of Baptism, invariably and unconditionally regenerated. Mr. Gorham sought redress in the Arches' Court of Canterbury by the only process open to him, that of a Duplex Que rela; and monition, with intimation to the Bishop to show cause, was granted by the Official Principal of the Arches, on the 15th of June, 1848. Counsel were heard in the Spring of 1849; and a judgment adverse to the plaintiff was pronounced by the late Sir Herbert Jenner Fust on the 2nd of August of the same year, the Bishop being dis missed with costs. From that judgment, as was briefly stated above, Mr. Gorham appealed to the Queen in Coun cil. The appeal came on for hearing on the 1 1th of De cember of the same year, before Lord Langdale as Master of the Rolls, Lord Campbell as Chancellor of the Duchy of Lancaster, Sir James Parke as one of the Barons of the Exchequer, Dr. Lushington as Judge of the Consistory Court -if London, Sir J. L. Knight Bruce as Vice-Chan- cellor, and the Right Hon. Thomas Pemberton Leigh as Chancellor of the Duchy of Cornwall. The Archbishops of Canterbury and York, and the Bishop of London, were present as assessors by command of her Majesty. The arguments and the reply were continued for five days, (namely on the 11th, 12th, 14th, 17th, and 18th of De cember) and occupied twenty-seven hours, twelve of which were engaged by the counsel of the appellant, and fifteen by the counsel of the respondent. Judgment was deferred till the 8th of March, 1850; when it was pro nounced in favour of the appellant, by reversal of the 272 MEMOIR OF HENRY LORD LANGDALE. judgment of the Court below, but without costs ; and her Majesty was pleased to confirm this decision, in Council, on the following day. The judgment is long, elaborate, and drawn up with great precision; while, at the same time, it is by no means deficient in gracefulness of style. It will well re pay a careful perusal;* but a general outline of its contents will be sufficient in this place to render intelli gible the very few observations which it is deemed neces sary to make in connexion with Lord Langdale's name. It having been notorious that Lord Langdale took a lead ing part in this anxious decision, there can be no im propriety in stating that he was requested by the other members of the Judicial Committee to draw it up, from his own notes, from those of the other Judges, and from the communications which he received from the two Archbishops and the Bishop of London, as far as it was thought proper to adopt them. It then underwent the most careful review by every Member of the Privy Coun- * It is reported, in "The Case ofthe Rev. G. C. Gorham, against the Bishop of Exeter, &c. by E. F. Moore, Esq., M.A., Barrister-at- Law," pp. 458 — 474. London, royal 8vo. 1852. In referring to this valuable volume, it may be well to notice one error in the report of the judgment, at p. 463, line 6; where, for " Arminian doctrines," read " the doctrine since known as Arminian." This cor rection is made from Lord Langdale's own copy. It is important, also, to observe, that the passage, " In Baptism that is sealed and con firmed to infants which they had before," which appears immediately after a quotation from Bullinger, as if it were a dictum of the Judges, is, in fact, a second quotation from Bullinger (" Decades," p. 1007, col. 2, edit. Lond., 1587). The error arose from the omission of the inverted commas of quotation, in the copies printed for private circulation among the members ofthe Privy Council. MEMOIR OF HENRY LORD LANGDALE. 273 cil who was present at the hearing; was corrected by their suggestions ; and was finally adopted by all of them, except the Vice-Chancellor Knight Bruce who dissented from it. The Archbishops of Canterbury and York, after perusing copies of it, expressed their approbation thereof; the Lord Bishop of London did not concur therein. It begins by setting forth the facts of the case; com plains of the laxity of the pleadings in the Court below; and then briefly states the doctrine which, as it appeared to the Judicial Committee, was held by the appellant. It takes up the position, that the question is simply whether those doctrines are repugnant to the doctrines which the Church requires to be held by its ministers , a question which must be decided by the Articles and the Liturgy, applying to their construction the rules' which by law are applicable to the construction of all written instruments, taking into consideration only such external or historical facts as are necessary for under standing the subject-matter. It disclaims any intention to decide whether the opinions of the appellant are theologically sound or unsound; the question being simply a legal one. It proceeds to state, that a great variety of opinions respecting Baptism and other matters of doctrine, harassed the Church at the Reformation; that the Church did not attempt the determination of all those questions, — that, in selecting those points which it was intended to decide, regard was had to the most:. important, and upon which the members of the Church. could agree — other questions being left to the private judgment of pious and conscientious persons, until de- VOL. II. t 274 MEMOIR OF HENRY LORD LANGDALE. cided (if at some future time it should be deemed expe dient) by competent authority. The disputed point is then carefully examined, — first with historical reference to the doctrine of Baptism declared in the ^re-Reform ation Articles of 1536, and the " King's Book," or "Necessary Doctrine," &c, of 1543: secondly, with relation to the present Articles of 1562 (which are admitted to constitute the Code of Faith;) and to the Formularies in the Book of Common Prayer, which it is allowed being devotional exercises " cannot be held to be evidence of faith or of doctrine, without reference to the distinct declaration of doctrine in the Articles, and to the faith, hope, and charity by which the Formu laries profess to be accompanied." The Judgment then notices the doctrinal opinions of several eminent writers, by whose piety, learning, and ability, the Church of England has been distinguished (quoting eight of them), who had been cited by the appellant's counsel, as holding doctrine similar to his own, and it declares, that — " It appears that opinions, which we cannot in any important particular distinguish from those entertained by Mr. Gorham, have been propounded, and maintained, without censure or reproach, by many eminent and illustrious prelates and divines who have adorned the Church from the time when the Articles were first established. We do not affirm that the doctrines and opinions of Jewel, Hooker, Usher, Jeremy Taylor, Whit gift, Pearson, Carlton, Prideaux, and many others, can be received as evidence of the doctrine of the Church of England; but their conduct, unblamed and unques- MEMOIR OF HENRY LORD LANGDALE. 275 tioned as it was, proves, at least, the liberty which has been allowed of maintaining such doctrine." With regard to the great question, whether the ap pellant's doctrine is contrary to that of the Church of England, and was, therefore, a just ground of refusal of institution by the Bishop, the Judges (with the one exception already mentioned), " unanimously agreed in opinion " as follows : — " That the doctrine held by Mr. Gorham is not con trary or repugnant to the declared doctrine of the Church of England as by law established, and that Mr. Gorham ought not, by reason of the doctrine held by him, to have been refused admission to the Vicarage of Brampford Speke. We shall, therefore, humbly re port to her Majesty that the sentence pronounced by the learned Judge of the Arches Court of Canterbury ought to be reversed," &c. It was not to be expected that a judgment so impor tant in its consequences, and so utterly subversive of the attempt of a party in the Church of England to abridge her comprehensiveness, could be given without exciting angry feelings. Indeed, even during the progress of the cause both in the lower and in the higher Court, for nearly a year and a-half before the pronunciation of the ultimate decision, violent exhibitions of party strife had exposed the Church to scandal, and had shocked the feelings of peaceful and moderate men. In the interval of nearly three months, which occurred between the close of the arguments on the Appeal and the decision of the' Judges, the increasing apprehension, and, at length, the moral certainty of a decision fatal to the hopes of T 2 276 MEMOIR OF HENRY LORD LANGDALE. the exclusionists, had drawn forth threats of a large secession to Rome, and even of a breaking up of the Na tional Church. This hostile movement was so public and so violent as to render it impossible that the Judges should not be painfully cognizant of it ; it required, therefore, the exercise of more than usual firmness, pru dence, and charity, as well as of the gravest delibera tion, that they might perform their arduous duty to their Queen, their Church, and their country, in a manner befitting their high trust. Lord Langdale has left behind him papers which show the deep anxiety he felt to give a just decision, and yet to occasion as little offence as practicable to the party to whom the sentence would be unfavourable. But the violence of party spirit is often beyond the control of the wisest and most amiable. All the moderate members of the Church of England (indeed constituting a large ma jority), whether agreeing or not in the exact shades of opinion which the Appellant had maintained, were well satisfied with this Judgment, as eminently equitable, and as well calculated to secure her peace and prosperity. But that section of the Church (unhappily not incon siderable either in number or talent), by whose encou ragement or instigation the Bishop of Exeter had at tempted to enforce the acceptance of a dogma which tho fathers of the Reformation had not imposed on the consciences of the clergy, — burst the barriers of decorous controversy, and vituperated the Judges who had pro nounced this decision, in the most unscrupulous terms. Various bodies, associated by the name of " Church Unions," led on this unseemly attack; these were fol- MEMOIR OF HENRY LORD LANGDALE. 277 lowed by a host of angry pamphleteers and reviewers ; and two misguided clergymen went to the length of denouncing (in their parish churches, on the Sabbath day, and in a formally executed document) the delibe rate Judgment of the Privy Council, sanctioned by the sign-manual of the Queen. The most remarkable out- break, however, against the Judicial Committee, and their two archiepiscopal assessors, was that of the Right Reverend Respondent himself, who addressed the Arch bishop of Canterbury in a letter,* dated only twelve days after the delivery of the Judgment; which (to use the Bishop of Exeter's own language), " burst the bands of conventional decorum." f Had that letter confined its reproaches to the Archbishop, it would have been left unnoticed in these pages; but vituperating as it does all the members of the Judicial Committee who concurred in the decision, and reproaching, as it does, nominatim, the Master of the Rolls, J it would be a , dereliction of duty if as his Lordship's biographer I were to be silent on the language of invective and contempt in which his conduct and motives are there held up ,to public reprobation. It arrogantly assumes that " highly respectable common law Judges" do " not understand theological statements," and that " this illustrates their utter unfitness for the very responsible office" put upon them; that, in estimating the Appellant's doctrine, "one * " Letter to the Archbishop of Canterbury from the Bishop of Exeter," March 20, 1851. 8vo. London. f "The Bishop of Exeter's Pastoral Letter," April 9, 1851; p. 40. 8vo. London. | Ib. p. 66. 278 MEMOIR OF HENRY LORD LANGDALE. set of words was substituted for another" (p. 53). The Judges are charged with a " suppression of the truth " (p. 59), with having " deceived themselves grossly " (p. 63); with having "wantonly, and in spite of warn ing, omitted to give attention to a conclusive Canon of the Church ; " with having " decided in contempt of it ;" with having been " guilty of a grievous violation of their plain duty — which duty is, to administer, not to make laws;" with having "^listened to clamour from without, or timid caution from within" (pp. 64, 65). The beautifully luminous statement of the Judgment (which the reader has already learned, was originally sketched by the pen of Lord Langdale), is sneered at as " the argument (if courtesy require us to call it by such a name) of the Judicial Committee" (p. 67). It is unwarrantably affirmed that " the Act of Uniformity was utterly disregarded in the Judgment" (p. 71). It is recklessly and libellously declared, that the Judges " absolutely shut their eyes against the law, for, in this instance, nothing is seen of Justice but her bandage" (p. 78). The disappointed Bishop even ventures to " aver " his " belief, that other motives besides mere justice and truth, swayed this sentence;" that the Judi cial Committee were " betrayed into a grievous perver sion of justice;" and that they " tampered with justice," under the fear that " a large number of clergymen would be driven to resign their offices, perhaps to leave the Church" (p. 79). That these reproachful imputations on Lord Lang dale and his associated Judges, are nothing better than the intemperate invectives of an irritated litigant, mor- MEMOIR OF HENRY LORD LANGDALE. 279 tified at the check which his ambition, as the flattered champion of a violent party in the Church, had received from his Sovereign, guided by her most eminent law yers under the assistance of the two Archbishops — is so evident, that it would be a waste of words to dwell upon the subject. Even were a biographical volume the suitable place (which it certainly is not) for a theological exposure of the illiberality and absurdity of this out rageous attack on Lord Langdale and the other four members of the Judicial Committee, the vindication would be superfluous; since it has already been suc cessfully accomplished by persons better qualified for such an undertaking * than I can pretend to be. Upon the mysterious doctrine which formed- the subject-matter of this unhappy controversy, it would ill become me to express any opinion ; when even the learned Judges them selves, who decided the case, cautiously abstained from any discussion of the theological accuracy of the conflict ing views entertained by the parties before them, and which had been held without censure by some of the best members of the Church in by-gone times. Being attached to no party, I desire not to write a single word disrespectfully of the conscientious opinions of any body of men when maintained with charity. But, touching the monstrous allegation that profound law yers were incompetent to " understand " the theolo gical statements which they were required to examine * The reader who desires to see a very complete reply to the charges mentioned above, may find it in " A Letter to the Bishop of Exeter, containing an Examination of his Letters to the Archbishop of Canterbury, by W. Goode, M.A., F.S.A., Rector of AUhallows the Great and Less.'' London, 8vo. 280 MEMOIR OF HENRY LORD LANGDALE. in connexion with the declared doctrines of the Church ; and the serious charge that they were corruptly swayed by unjustifiable " motives " to give a decision in violation of the law, I feel that I am both qualified and bound to repudiate such an imputation with in dignant amazement at its unparalleled illiberality. Lord Langdale's copious and well-digested notes upon the subject now lie under my eye. These memoranda bear ample testimony to the deep anxiety with which he entered upon, and pursued the consideration of the very difficult question brought into the Appeal Court; the earnest attention with which he had listened to the arguments of the distinguished counsel employed by each party: the grave deliberation which he bestowed on the written suggestions of the Prelates who were commanded by her Majesty to assist her Privy Council lors by their theological information ; the acuteness and the candour with which he reviewed the points to which his mind had thus (as well as by his own reading) been directed; the diligence with which he compared his own conclusions with those of his associate Judges; and the clearness of perception by which he was enabled to bring into one statement the perfectly consentient though somewhat differently expressed legal opinions of the five Privy Councillors who agreed in the Decision, and of the two Archbishops who assisted them in their difficult task as regarded the theological part of their inquiry. Although the papers to which reference has just been made, if printed in extenso, would be eminently cre ditable to Lord Langdale, as exhibiting great theolo gical discrimination, and inflexible equity in his exa- MEMOIR OF HENRY LORD LANGDALE. 281 mination into the declared doctrines of the Church of England, yet I do not consider that I should be jus tified in gratifying curiosity by subjecting the contents of Lord Langdale's portfolio to public criticism, on a matter which still keeps the Church in painful agita tion. Those papers, though drawn up with great care and precision, did not receive the minutely verbal re vision which, doubtless, would have been applied to them had Lord Langdale matured his written thoughts for the public eye ; they were original materials for his own guidance, or suggestions to his brother Judges : as such, they possess a confidential and a sacred character, which must not be violated. It will not, however, be inconsistent with this aVowal, to give two or three very brief extracts, with a view to illustrate the character and principles of the judgment which has been so rudely assailed by the party whose intolerance it restrained. These extracts will be followed by an " Historical Sketch of the Liturgy and Articles," which may, with out impropriety, be presented to the reader, entire, in the exact state in which it was left by Lord Langdale; and which will show the great pains which he bestowed on that part of the case which has relation to the docu mentary annals of the Church of England from the period which just preceded the Reformation to that of the Restoration of Charles IL, when the Ritual received its last revision. One statement, however, in disparagement of Lord Langdale's reputation in this matter, must previously be noticed. In a Pastoral Letter from the Bishop of Exeter to 282 MEMOIR OF HENRY LORD LANGDALE. his Clergy, dated April, 9th, 1850, and, therefore, written one year later than that to the Archbishop of Canterbury, above noticed, it is said : — " One Article of our Creed, ' I acknowledge one Baptism for the remission of sins,' has been assailed from the very highest quarter which could be named — her Majesty in Council; not, thank God! of her own mind, but in accordance with the report of, and recommenda tion of, the Judicial Committee of the Council, two of the five who so reported not being known to be members of our Church. This high authority has put forth a solemn adjudication that this Article of the Creed, if true, is not such a truth as a Minister qf the Church may not deny, without thereby disqualifying himself from being admitted to the cure of souls," (pp. 67, 68). Now it may be safely affirmed, that the memorable adjudication, in which Lord Langdale concurred does not contain one word to justify this serious and most reprehensible attack. On the contrary, the judg ment of the Judicial Committee solemnly recognises the very article which the calumniator affirms that it " assails," for it expressly says " One Baptism for the remission of sins is acknowledged by the Church?1 Lord Langdale was the last man to tamper with the Credenda of his Church. The judgment which he contributed to frame, does indeed permit a minister to deny the private sense in which an individual bishop may think fit to impose an Article of the Creed upon his conscience; but it does not dispense with the re quirement of the Church, that her ministers shall MEMOIR OF HENRY LORD LANGDALE. 283 solemnly and ex animo declare their consent to her Ar ticles and Formularies, without equivocation or reserva tion. The imputation is so grossly opposed to fact, that it may be dismissed without further notice, than the ex pression of regret that a bishop should have so griev ously out-stepped the limits of decent controversy, and so lamentably forgotten the law of Christian charity. A few extracts shall now be given from Lord Lang dale's notes preparatory to the judgment. One of the charges which has been most plausibly urged, and repeatedly asseverated, against the Judicial Committee is, that, being laymen, they presumed to intermeddle with the doctrines of the Church; a matter which (it is affirmed) belongs exclusively to her ministers. The charge is altogether without foundation; for the Judges expressly disavowed any intention to enter upon a theological discussion of the doctrines of the Church, or of the soundness or unsoundness of the opinions held by the appellant. They say, — " The question which we have to decide, is, whether these opinions now under our consideration are contrary or repugnant to the doctrines which the Church of Eng land, by its Articles, Formularies, and Rubrics requires to be held by its ministers." * " This Court, consti tuted for the purpose of advising her Majesty in matters which come within its competency, has no jurisdiction or authority to settle matters of faith, or to determine what ought in any particular to be the doctrine of the Church of England. Its duty extends only to the con sideration of that which is by law established to be the * See the Judgment, in Moore's Case, &c. p. 462. 284 MEMOIR OF HENRY LORD LANGDALE. doctrine of the Church of England, upon the true and legal construction of the Articles and Formularies ; " * .and Lord Langdale's papers show the extreme caution and scrupulosity with which he guarded his mind against confounding the office of the lawyer with that of the theologian — conscious that his simple duty was to ex amine, by the strict rules of legal inquiry, what are the declared doctrines of the Church as settled by her own Convocation, and established by Parliament. His notes are remarkably explicit on this point. " The Question is a purely legal Question. As Sir Wm. Scott said, in the case of Stone,f — ' It has been deemed expedient to the best interests of Christianity, that there should be an appointed Liturgy to which the office of public worship should conform; and, as to preaching, that it should be according to those doctrines which the State has adopted, as the natural Exposition of the Christian Faith. We must assume, and through out the whole case proceed upon the assumption, that the doctrine of the Church of England, as by law established, is truly and correctly deduced from the Holy Scriptures; and that the Articles of the Church of England, either alone, or more or less qualified by the Liturgy, or the Rubrics, and Services, contained in the Book of Common Prayer, &c, do set forth the true doctrine of the Church of England, as by law established, " agreeable to the Word of God." J And, * See the Judgment, in Moore's Case, &c. p. 472. t Haggard's Consist. Cases, i. 428. [See this quotation more at large in Mr. Turner's Argument, Moore's Case, &c. p. 216.] I [Canon xxxvi. 3.] MEMOIR OF HENRY LORD LANGDALE. 285 applying the doctrine of the Sixth Article to the present subject, we may be allowed to say, that, what soever is not read in the Articles and Liturgy, nor may be proved thereby, even if it be rightly deducible from Holy Scripture, is not to be required of any man that he should accept it as an Article of the doctrine of the Church of England as by law established. It may be the truth of God, derived from Holy Scripture, and for that reason be, or be deemed to be, consistent with a doctrine of the Church, and yet not to be required by the Church to be accepted as doctrine necessary to make a minister " worthy of his ministry.""* We have only to look at the doctrine of the Church as by Law estab lished ; and, therefore, the present case is to be deter mined according to the true construction which, upon mature deliberation ought to be put upon the Book of the Articles, and the Book of Common Prayer containing the Services, Formularies, and Rubrics." The variety of opinions respecting Baptism and its efficacy, with which the Church was harassed, " from the first dawn of the Reformation until the final settle ment of the Articles and Formularies," is slightly touched upon in the Judgment, f Lord Langdale care fully followed up the suggestions of counsel on this subject (especially those of Mr. Turner),! and dili gently studied the matter with reference to its possible bearing on the declared doctrine of Baptism in the Articles and in the dogmatic portions of the Formularies. He enumerates those opinions as follows : — * [Canon xxxix.] | See Moore's Case, &c. p. 463. \ Ib. pp. 202—204. 286 MEMOIR OF HENRY LORD LANGDALE. " Some of the Questions raised concerning Baptism were to the following effect. 1. "Whether Baptism was anything more than a mark, or sign of admission into the society or congrega tion of Christian men ? 2. " Whether, like the ceremony of circumcision among the Jews, it was the sealing or ratification of a species of Covenant by an outward and visible sign, which authorized us to claim, through God's mercy, the performance of His promises, and was a pledge to assure us thereof? 3. " Whether those who received Baptism received at the same time Regeneration ex opere operato, by the work then wrought? 4. " What was, or in what consisted the inward and spiritual grace, the grace of regeneration, of which Bap tism was, or was intended to be, the outward and visible sign? 5. " What is the immediate effect of Baptism in the cases of, 1st. Adults having faith and repentance at the time? 2nd. Adults not having faith and repentance at the time, but afterwards requiring them? 6. "Does the efficacy of Baptism necessarily take place at once, or does it depend on the secret working of God in the progress of time, the time depending on his pleasure and the occasions of faith and repentance which arise, as foreseen by him ? 7. "Is Baptism absolutely necessary to salvation; or has God absolutely excluded from salvation all who have not been baptized? 8. "Ought infants to be baptized? MEMOIR OF HENRY LORD LANGDALE. 287 9. " Infants being incompetent to have faith or re pentance, ought they on that account to be excluded, or to be held qualified and capable of rightly receiving Baptism by the grace and mercy of God, enabling them immediately to receive remission of original sin, and enjoy the pledge, assurance, and prospect of the full per formance of God's promises until competency arrives, when faith and repentance may be exercised, and the complete effect of that which commenced in Baptism may be obtained? 10. " Does the propriety or efficacy of Infant Baptism at all depend on the faith of the parents or sponsors, or those who bring the infant to be baptized ; or upon their being offered in the faith of the Church (see the King's Book, 1543,*), or upon implied promises or prayer for grace in cases where all promises or prayers are, from the emergency ofthe occasion, permitted to be omitted? " These and many other questions have been discussed, and were discussed before the doctrines of the Church of England were formally settled." Among the insinuated charges against the Judicial Committee one of the most illiberal was (as has been briefly intimated above, p. 278 ) that they had garbled, misrepresented, or misquoted the appellant, in their ac count of his doctrine, with a view to render it less objectionable. This serious imputation professes to be supported by the following passage in the judgment: " What is signified by right reception is not determined by the Articles. Mr. Gorham says, that the expression * [The "Necessary Doctrine and Erudition for any Christian Man," in Lloyd's " Formularies," p. 365.] 288 MEMOIR OF HENRY LORD LANGDALE. always means or implies a fit state to receive, viz. in the case of adults ' with faith and repentance,' and in the case of infants ' with God's grace and favour.' " * " These words," says the accuser, " although quoted in the judgment as Mr. Gorham's, I do not find in his answers" his judges have " substituted one set of words for another."! A candid reader would have clearly understood the expression (" says ") as setting forth, by a conventional and by no means unusual term, only the purport of the appellant's answers, and not as necessa rily giving their ipsissima verba. In fact, the Judges had previously declared, that "in considering the exa- mination we must have regard to its general scope, object, and character;" and that " justice requires that an endeavour should be made to obtain the result which appears most consistent with the general intention of Mr. Gorham in the exposition of his doctrine and opi nions." J It would seem, therefore, almost impossible that any honest mind could institute against five learned Judges a charge of misquotation, or of unfair substitu tion of words, by quibbling on an expression used in a popular, instead of an absolute sense. Lord Langdale's original notes, from which this passage in the judgment was doubtless prepared, place this matter beyond am biguity. In these it is clear that the words, whicli the Bishop of Exeter maintains were " substituted''' for words actually used, were simply intended to set forth * See Moore's Case, &c. p. 466. ] Letter to the Archbishop of Canterbury from the Bishop of Exeter, March 20th, 1850, p. 53. I Moore's Case, &c. p. 461. MEMOIR OF HENRY LORD LANGDALE. 289 Mr. Gorham's " meaning " as gathered from the argu ment of his counsel. The following extract (containing some valuable observations explanatory of the principles on which the more concise statement in the judgment was made) will be more extended than would be necessary merely to refute the charge of false quotation just men tioned. Lord Langdale writes : — " It has been argued against Mr. Gorham, that, in the 27th Article, the word ' rightly ' is used in two distinct senses ; meaning in the case of adults, ' with faith and repentance ;' and meaning in the case of infants, ' in proper form.1 For Mr. Gorham it was argued, that the word always signifies ' a fit state to receive ;' meaning in the case of adults, ' with faith and repentance ;' and meaning in the case of infants, ' with God's grace and favour.' The condition upon which the wholesome effect is made to depend, is the worthy or right reception of the Sacrament, and, as to this condition, nothing is found in the Articles from which it appears that there is any difference in the nature of the Sacrament as administered to adults, or to infants, upon the true construction of the Articles ; ' worthy ' or ' right ' reception, is as necessary to infants as to adults, although the capacity and condi tion of infants are so materially different from the capa city and condition of adults as to require very different considerations of the two cases. Upon subjects such as these, which the Articles (the Code of Faith) leave undetermined, it is not enough to say that one view, or one opinion, is more reasonable or VOL. II. U 290 MEMOIR OF HENRY LORD LANGDALE. more probable than another, or to say that the effect of Baptism without more is regeneration, in whatsoever sense that word is understood. The term is undefined ; the time and circumstances in which it is produced are undefined ; and the opinion that it is conditional is not contrary to the Articles, and is not for that reason unsound, or to be punished as such." The two following observations, which are the last which I shall extract from Lord Langdale's papers, show how acutely his mind had seized, as an equitable Judge, on the principal point of difference between the appellant and the respondent; and how deeply he la mented, as a Christian, the attempt to dogmatize where the Church has left the consciences of her members at liberty : — " If all baptized infants, dying before the commission of actual sin, must be saved, which both parties teach, their difference seems to be as to the mode and time in which the effect is accomplished; and the Church may not have dogmatically determined this." " It is a sad reflection that men, agreed upon the points which the Church by her Articles and Services plainly declares, should stir up strife and contention by their disputes upon questions which are left open and undetermined, should place themselves in continual dan ger of being arrogant and dogmatical for themselves, of being unkindly and indiscreetly, if not fanatically, zealous in support of their own opinions ; of forgetting the charity which interprets doubtful things in the most MEMOIR OF HENRY LORD LANGDALE. 291 favourable sense; and the moderation which has been quaintly but expressively called ' the silken string run ning through the pearl chain of all virtues ;' and of act ing upon principles, which, if generally applied, and capable of being enforced by law, would prevent all free- doom of thought and expression, and all toleration within the pale of the Church of England," u 2 292 MEMOIR OF HENRY LORD LANGDALE. CHAPTER XVIII. The " Historical Sketch of the Articles and Liturgy," which will now be laid before the reader, was clearly not intended by Lord Langdale as an essay or dissertation upon that subject; but was simply a collection of notes, methodically arranged, from the arguments of counsel and other sources, for his private use, in deliberating on the documentary facts connected with the Reformation of the Church of England, with special relation to the case of " Gorham v. the Bishop of Exeter," on which he had to adjudicate, in the month of , 1850. HISTORICAL SKETCH OF THE ARTICLES AND LITURGIES IN ENGLAND. [With more particular reference to the doctrine of the two Sacraments, especially that of Baptism].* [Being a portion of the notes (from the arguments of counsel, and from other sources, in the Appeal Case, "Gorham v. Bishop of Exeter "), taken by the Right Hon. Lord Langdale]. I. SUBMISSION OF THE CLERGY, 1534. After the submission of the clergy to King Hen. VIII. * The passages and authorities that have been added in explanation of Lord Langdale's rough notes, are distinguished by brackets, thus [ j MEMOIR OF HENRY LORD LANGDALE. 293 (15£4 — 25 Henry VIII. c. 19), and the enactment that he was Supreme Head of the Church of England (1534 — 26 Henry VIII. c. 1), it must have become desirable to establish an uniformity of doctrine as well as an uni formity of the worship of God. II. FIRST ARTICLES, 1536 (HENRY VIII.'s). The first attempt to establish such uniformity, by authority of the Church of England, was made in the year 1536. After debate in Convocation the King, with the al leged view to promote unity and concord in opinion, published certain Articles about Religion,* which were divided into two sorts ; the one sort such as were stated to be expressly commanded by God, and necessary to salvation; the other sort containing such things as had been of long continuance for a decent order and honest * Lloyd's "Formularies of Faith, put forth by authority during the reign of Henry VIII.," pp. 13-32. They may be seen, also, in Burnet's "Reformation," vol. i. pt. 1, pp. 391-395; vol. i. pt. 2, pp. 457-474, 8vo. edit Oxf. 1816, from the Cotton MS. Cleopatra E. v. The title of these Articles, as given by Lloyd, is, " Articles devised by the Kinges Highnes Majestie to stablyshe Christen quietnes and Unitie amonge us, and to avoyde contentious opinions : which Articles be also approved by the consent and determination of the hole Clergie of this Realme. Anno m.d.xxxvi. Londini in sedibus Thoma? Bertheleti Regii Impressoris." These Articles were quoted, as of the first importance, in the arguments on the Gorham Case, before the Dean of Arches, by Dr. Bayford (Speech, pp. 89- 92) ; also in the arguments before the Judicial Committee, by Mr. (now Vice-Chancellor Sir George) Turner (Moore s Report of the Case, &c. pp. 189, 236, 254, 446, 447), by Dr. Bayford (Moore, p. 254) and by their opposing counsel Dr. Addams (Moore, pp. 269, 302). 294 MEMOIR OF HENRY LORD LANGDALE. policy prudently instituted and used in the churches of the kingdom ; and were for that purpose and end to be observed, and kept accordingly, though they were not expressly commanded of God nor necessary to salvation. The first sort of Articles being those " concerning our faith," related to, 1st. " The Three Creeds or Symbols;" 2nd. " The Sacrament of Baptism ;" 3rd. " The " (so- called) "Sacrament of Penance;" 4th, "The Sacra ment ofthe Altar;" and, 5th. "Justification." The second sort of Articles, or the Articles " concern ing the" (so-called) "laudable ceremonies used in the Church," related to " Images," tbe honouring of, and " Praying to Saints," certain " Rites and Ceremonies," and " Purgatory." The Article concerning " the Sacrament of Baptism " states, that it " was instituted and ordained as a thing necessary for the attaining of everlasting life .... and is offered unto all men, as well infants as such as have the use of reason, that by baptism they shall have remission of sins, and the grace and favour of God. . . . That the promise of grace and everlasting life (which promise is adjoined unto this sacrament of baptism) pertaineth not only unto such as have the use of reason, but also to infants, innocents, and children; and that they ought, therefore, and must needs be baptized ; and that, by the Sacrament of Baptism, they do also ob tain remission of their sins, the grace and favour of God, and be made thereby the very sons and children of God. Insomuch as infants and children, dying in their infancy, shall undoubtedly be saved thereby, and else not. Item, That infants must needs be christened because they be MEMOIR OF HENRY LORD LANGDALE. 295 born in original sin, which sin must needs be remitted ; which cannot be done but by the Sacrament of Baptism, whereby they receive the Holy Ghost, which exerciseth bis grace and efficacy, in them, and cleanseth and puri- fieth them from sin by his most secret virtue and opera tion Item, That men or children, having the use of reason, and willing and desiring to be baptized, shall, by the virtue of that Holy Sacrament, obtain the grace and remission of all their sins, if they shall come thereunto perfectly and truly repentant, and contrite of all their sins before committed, and also perfectly and constantly confessing and believing all the Articles of our Faith, according as it was mentioned in the first Article ; and finally, if they shall also have firm credence and trust in the promise of God adjoined to the said Sacrament, that is to say, that in and by the said Sacra ment, which they shall receive, God the Father giveth unto them, for his Son Jesu Christ's sake, remission of all their sins, and the grace of the Holy Ghost, whereby they be newly regenerated and made the very children of God." * III. THE bishops' book, 1537. The like doctrine was published and declared in the year 1537, in a book entitled, " The Institution of a Christian Man," and called " The Bishops' Book,"! which * Lloyd's " Journal," pp. 18—20. [ Burnet's " Reform," I. pt. 2, pp. 460-462. Moore's Case, &c, Append. B. p. 478.] — Ed. t Lloyd's "Formularies," pp. 21—211. The doctrine of "The Sacrament of Baptism," is in Lloyd, pp. 92, 93, 94. [" The Institu tion of a Christian Man, Londini in ajdibus Thomas Bertheleti 296 MEMOIR OF HENRY LORD LANGDALE. contains " the Exposition of the Apostles' Creed," " the Declaration of the Seven Sacraments," " the Ten Com mandments," "the Paternoster," "the Ave Maria," " the Article of Justification," and " the Article of Pur gatory." IV. THE KING'S book, 1543. In the book entitled, " A Necessary Doctrine for any Christian Man," and called " The King's Book,"* which was published in 1543, it is thus expressed: — " Because all men be born sinners and cannot be saved without remission of their sin, which is given in Baptism by the working ofthe Holy Ghost; there fore the Sacrament of Baptism is necessary for the attaining of salvation and everlasting life, For which causes also it is offered, and pertaineth to all men, not only such as have the use of reason, in whom the same duly received, taketh away and purgeth all kind of sins, both original and actual, committed and Regii Impressoris. Anno m.d.xxxvii.'' The Bishops' Book was noticed in the Examination of Mr. Gorham by the Bishop of Exeter, pp. 181-186, 195 ; and in the Arguments before the Judicial Com mittee, by Dr. Bayford, see Moore's Cese, &c. p. 254; by Dr. Addams, p. 269 ; and by Mr. Badeley, p. 418.] * Lloyd's " Formularies," pp. 213 — 377. [" A necessary Doctrine and Erudition for any Christian Man ; set forth by the King's Majesty of England, &c. Imprinted at London, in Flete Strete, by Thomas Berthelet, printer to the Kynges Hyghnes, the xxix daye of Maye, the yere of Our Lorde m.d.xliii." The King's Book was quoted largely by the Bishop of Exeter, in his Examination of Mr. Gorham, pp. 186-189, 195; it was also cited in the Argu ments of Mr. Turner, Moore, p. 446 ; of Dr. Bayford, p. 254 ; of Dr. , Addams, p. 269 ; and of Mr. Badeley, p. 418.] MEMOIR OF HENRY LORD LANGDALE. 297 done before their Baptism ; but also it appertaineth, and is offered unto infants, which, because they be born in original sin, have need, and ought to be christened; whereby they, being offered in the faith of the Church, receive forgiveness of their sin, and such grace of the Holy Ghost, that if they die in the state of their infancy, they shall thereby undoubtedly be saved." * " This Sa crament of Baptism, as all other Sacraments instituted by Christ, have all their virtue, efficacy, and strength, by the word of God, which by his Holy Spirit worketh all the graces and virtues which be given by the Sacra ments to all those that worthily rfceive the same."! In another place of the same book it is summarily stated, that " by Baptism we be incorporated into the body of Christ's Church, obtaining in that Sacrament remission of sin, and grace wherewith we be able to lead a new life."| V. the primers, 1535, 1539, 1545. Whilst this was the state of the doctrine, various forms of Common Prayer were in use, viz.,§ the Use of Sarum, of York, of Bangor, and of Lincoln. In the time of King Henry VIII. several other forms seem to have been adopted or recommended. Three of them, set forth under the name of Primers, have been re-published || by Dr. Burton, viz., "Marshall's Primer," * Lloyd's "Formul." pp. 253-254. f Ib. p. 256. \ lb. p. 293. § Recited in 2 & 3 Edw, VI. c. 1. Mr. Maskell, in " Ancient Liturgies,'' gives the forms of Sarum, York, Bangor, and Hereford. II [" Three Primers, put forth in the reign of Henry VIII. viz. : I. 298 memoir of henry lord langdale. published in 1535 ; * Bishop Hilsey's " Primer," pub lished in 1539;! and King Henry VIII.'s "Primer," published in 1545; J the last of which was intitled, " The Primer set forth by the King's Majesty, and his Clergy : to be taught, learned, and read, and none other to be used, throughout all his dominions." VI. THE COUNCIL OF TRENT, 1547. Meantime, during the progress of the Reformation in England, fettered and impeded as it still was by the superstitions of the Church of Rome, but gradually advancing towards emancipation from them, and whilst the liturgy in King Henry's " Primer " contained a prayer § for deliverance " from the tyranny of the Bishop of Rome, and all his abominable enormities;" the Church of Rome itself, at the Council of Trent, proceeded to declare its own doctrine, and certain canons ' A Goodly Primer,' 1535. II. ' The Manual of Prayers, or the Prymer in English,' 1539. III. 'King Henry's Prymer,' 1545." Oxford, 8vo. 1834, pp. Ixvii and 527. These Primers were cited in Mr. Turner's Argument, Moore, p. 446.] * Burton, pp. 1—304. | Ib. pp. 305—436. X Ib. pp. 437—527. § Burton, p. 482. [ " The Litany and Suffrages " of Henry VIII.'s Primer. The same prayer, with one slight verbal variation, was continued in the two Service Books of Edward VI., 1549, and 1552 : " from the tyranny of the Bishop of Rome, and all his detest able enormities . . . Good Lord deliver us." See Cardwell's " Two Books of Common Prayer," &c. in the reign of Edward VI., p. 318. Oxf. 1838. See also the two Liturgies, 1549 and 1552, edited by Ketley, for the Parker Society, pj>. 102, 233. Camb. 1844.] MEMOIR OF HENRY LORD LANGDALE. 299 respecting Baptism were passed, in 1547.* Three of them were cited to us. " Canon VI. If any one shall say that the Sacra ments of the New Law do not contain the grace which they signify, or do not confer grace itself to those who interpose no obstacle, as though they were only external signs of grace or of justification received through faith, and certain marks of Christian profession by which the faithful are discerned among men from the unfaithful; let him be anathema." " Canon VII. If any one shall say that grace is not given always, and to all, through sacraments of this kind, so far as is possible on the part of God — [quantum est in parte Dei] — even though they re ceive them rightly, but sometimes, and to some; let him be anathema." " Canon VIII. If any one shall say that through these Sacraments of the New Law, grace is not conferred by the work wrought (ex opere operato), but that only [solam] faith of the divine promise is sufficient for obtaining grace ; let him be anathema." * Fra Paolo, Opere, i. 254; Bayford, 59, 60; Appendix, 220. [The Argument of Dr. Bayford in behalf of the Rev. G. C. Gorham, in the Arches Court of Canterbury, March, 1849, pp. 59, 60, 220, 8vo. London, 1849.] f [They were cited in the argument of Mr. (now Vice-Chancellor) Turner, before the Judicial Committee of Privy Council, I Ith Dec. 1849. See Moore's Case of Rev. G. C. Gorham, against the Bishop of Exeter, pp. 202, 203.] 300 MEMOIR OF HENRY LORD LANGDALE. VII. CRANMER'S CATECHISM. In the book called " Cranmer's Catechism,"* pub lished in 1548, it is said, that " by Baptism we be born again to a new and heavenly life, to be received into God's Church and Congregation, which is the foundation and pillar of the truth ; " ! and, after dwelling upon the confession of sin, the prayer for forgiveness, and the promises to fight against sin, which are made in Bap tism, addressing those who had been baptized, he prays them to continue in the same good mind, to acknow ledge in their hearts before God that they were sinners, be sorry for the same, and pray to God to heal and deliver them from their sin. He then proceeds as follows : — " Beware you fall not into sin again, have no delight in sin, nor sin not willingly; but be godly and holy, and suffer gladly such afflictions as God shall lay upon your backs. And, IF you do thus, then your bap tism shall be available, and God shall work in you by his Holy Spirit, and shall finish in you all those things which by Baptism He hath begun. God is almighty and able to work in us, by Baptism, forgive ness of our sins and all those wonderful effects and operations for the which He hath ordained the same, although men's reason is unable to conceive the same." % * [So " called ;" but, in fact, the Catechism of Justus Jonas, trans lated into English, and set forth by Cranmer in 1548. See Dr. Bayford's Argument in Moore's Case ; Dr. Addams's Argument in Moore's Case, &c. p. 293; and Mr. Badeley's, pp. 419, 425.] f Cranmer's "Catechism," Burton's edition, p. 183. \ Ib. pp. 185, 186. MEMOIR OF HENRY LORD LANGDALE. 301 VIII. FIRST LITURGY — 1ST BOOK OF EDWARD VI. In November, 1548, an Act of Parliament (2 & 3 Edw. VI., c. 1), was passed, in which, after reciting that " of long time there had been in England and in Wales divers forms of Common Prayer, commonly called the Service of the Church, that is to say, the Use of Sarum, of York, of Bangor, and of Lincoln ; and, besides the same, then of late much more divers and sundry forms and fashions had been used in the cathedral and parish churches of England and Wales, as well concern ing the mattens and morning prayer, and the even song, as also concerning the Holy Communion, com monly called the Mass, with divers and sundry rites and ceremonies concerning the same, and in the administra tion of other Sacraments of the Church : " and further reciting that " to the intent a uniform, quiet, and godly order should be had concerning the premises;" the King had " appointed the Archbishop of Canterbury, &c, . . . to consider and ponder the premises," and " draw and make one convenient and meet Order, Rite, and Fashion of common and open Prayer and Administration of the Sacraments to be had and used in England and Wales ; the which," as it is said, " by the aid of the Holy Ghost, was concluded, set forth, and delivered" to the King " in a Book entitled, ' The Book of Common Prayer, &c.' " It was among other things enacted, " That all ministers in any Cathedral or other place, should, after the feast of Pentecost next ensuing, be bound to say and use the Mattens, Evensong, Celebration of the Lord's Sup- 302 MEMOIR OF HENRY LORD LANGDALE. per, commonly called the Mass, and administration of each of the Sacraments, and all their common and open prayer, in such manner and form as is mentioned in the book, and none other or otherwise;" and various penalties were appointed for ministers refusing to use the Book of Common Prayer, or wilfully using any other form of open prayer, or preaching in derogation or de praving of the Book.* IX. SECOND LITURGY OF EDWARD VI., OR FIRST REVISION, 1552. The book thus sanctioned was afterwards revised and perfected, and in the early part of 1552, an Act f (5 & 6 Edw. VI. c. 1) was passed, in which, after reference made to the Book, or Common Service, established by the former Act, it was enacted as follows: " Because there has arisen, in the use and exercise of the foresaid Common Service in the church, divers doubts for the fashion and manner of the ministration of the same, rather by the curiosity of the minister than of any other worthy cause, therefore, as well for the more plain and manifest explanation hereof, as for the more perfection of the said order of Common Service in some places where it is necessary to make the same prayers and fashion of service more earnest and fit to stir Christian people to the true honouring of Almighty God," the King, * Stat, ofthe Realm, iv. 37. [This Act was cited largely in Mr. Turner's Argument. See Moore's Case, &c. pp. 191, 192, 193.] \ Ib. p. 130. [See Mr. Turner's Argument in Moore's Case, &c. pp. 193, 194.] MEMOIR OF HENRY LORD LANGDALE. 303 " with the assent of the Lords and Commons, &c. had caused the order of Common Service, entitled, The Book of Common Prayer, to be faithfully and godly perused, explained, and made fully perfect," with an addition [of the Ordinal,] " to be of like force, authority, and value as the same like book of Common Prayer was before and to be accepted and esteemed in like sort and manner ;" and the provisions of the former Act were to be applied for the establishing of the new book. X. SECOND ARTICLES, 1552 (EDWARD VI.'s). At this time no articles of religion had been sanc tioned by the Legislature; but, in the year 1552, after the second of King Edward's Books of Common Prayer had been established by Act of Parliament, certain " Articles " * (forty-two in number) were " agreed on by the Bishops, and other learned men, in the Synod at London, for the avoiding of controversy in opinions, * Cardwell's " Synodalia," vol. i. pp. 1-17, and pp. 18-33. [" Ar- ticuli, de quibus in Synodo Londinensi, Anno Dom. m.d.lii. ad tollendam opinionum dissensionem, et consensum verse Religionis firmandum, inter Episcopos et alios eruditos viros convenerat : Regia authoritate in lucem editi. Excusum Londini apud Reginaldum Wolfium, Regiae Majestatis in Latinis Typographum. Anno Domini m.d.liii." Cardwell, Synod, i. pp. 1-17. "Articles agreed on by the Bishoppes, and other learned menne in the Synode at London, in the yere of our Lord Godde, m.d.lii. for the avoiding of contro- versie in opinions, and the establishmente of a godlie concorde, in certeine matiers of Religion. If Published by the Kinge's Majesties commaundemente, in the Moneth of Maie. Anno Domini 1553. Richardus Graftonus typographus Regius excudebat. Londini, mense Junii. An. do. m.d.liii." Cardwell's Synod, i. pp. 18 — 33.] 304 MEMOIR OF HENRY LORD LANGDALE. and the establishment of a godly concord, in certain matters of religion." The 26th of these articles relates to both the Sacra ments, and is as follows:* — " XXVI. Our Lord Jesus Christ hath knit together a company of new people with Sacraments, most few in number, most easy to be kept, most excellent in signification, as is Baptism, and the Lord's Supper. The Sacraments were not ordained of Christ to be gazed upon, or to be carried about, but that we should rightly use them. And in such only, as worthily receive the same, they have an wholesome effect and operation, and yet not tnat of the work wrought, as some speak [non ex opere (ut quidam loquuntur) operate?] which word, as it is strange and unknown to Holy Scripture : So it engendreth no godly, but a very superstitious sense. But they that receive the Sacraments unworthily, purchase to themselves damnation, as Saint Paul saith. — Sacraments ordained by the word of God be not only badges and tokens of Christian men's profession, but rather they be certain sure witnesses and effectual signs of grace and God's good will toward us, by the which He doth work invisibly in us, and doth not only quicken, but also strengthen and confirm our faith in Him." The 28th Article is as follows :f— " XXVIII. Bap tism is not only a sign of profession, and mark of dif ference, whereby Christian men are discerned from other * Cardwell's Synod, vol. i. pp. 12, 27. [See Mr. Turner's Argu ment, Moore's Case, &c. p. 203.] t Ib. pp. 13, 28. [See Mr. Turner's Argument, Moore's Case, &c. p. 204.] MEMOIR OF HENRY LORD LANGDALE. 305 that be not christened, but it is also a sign and seal of our new birth, whereby, as by an instrument, they that receive Baptism rightly, are grafted in the Church, the promises of forgiveness of sin, and our adoption to be the sons of God, are visibly signed and sealed, faith is confirmed, and grace increased by virtue of prayer unto God. The custom of the Church to christen young children is to be commended, and in anywise to be retained in the Church." XL ABOLITION OF KING EDWARD'S LITURGIES (MARY's). These Articles were published in the month of June, 1553, very shortly before the death of King Edward VI. (July 6th) and the accession of Queen Mary, in whose reign [the statute 2 & 3 Edw. VI. c. 1, and also] the statute of 5 & 6 Edw. VI. c. 1. was repealed [by 1 Mary, c. 2.*] XII. THIRD LITURGY, OR SECOND REVISION, 1559 (ELIZABETH). But in 1559, by the statute of 1 Eliz. c. 2, the repeal ing Act of Mary (which was recited as having tended " to the great decay of the due honour of God, and dis comfort to the professors of the truth of Christ's reli gion ") was repealed, and it was enacted that the Second Book of King Edward, " with the Order of Service, and of the Administration of Sacraments, Rites, and Cere monies, with the alterations and additions therein then added," should be " of full force and effect," notwith standing the statute of repeal, and various penalties * [See Mr. Turner's Argument, Moore, p. 195.] VOL. II. X 306 MEMOIR OF HENRY LORD LANGDALE. were provided to enforce the observance of the same book.* XIII. THIRD ARTICLES, FRAMED 1562, ESTABLISHED 1571 (ELIZABETH'S). About the same time proceedings were taken in Con vocation for the reconsideration of the Articles of King Edward VI.; and in the year 1562, the Articles! were settled, with very slight difference in the form, and nearly to the effect, afterwards enacted in the year 1571, when they were printed by the Queen's authority under the title J of " Articles whereupon it was agreed by the * [See Mr. Turner's Argument, Moore, pp. 195, 196.] f Cardwell's "Synodalia," i. pp. 34-52, and pp. 53-72. ["Ar- ticuli de quibus in synodo Londiniensi anno Domini juxta Ecclesise Anglicanse computationem m.d.lxii., ad tollendam opiuionum dis" sentionem, et firmandum in vera Religione consensum, inter Archie- piscopos Episcoposque utriusque Provincise, necnon etiam universum Clerum convenit. Regia authoritate in lucem editi. Londini, anno Domini m.d.lxiii. Excusum Londini apud Reginaldum Wolfium, Regise Majest. in Latinis typographum. Anno Domini 1563." Cardwell's " Synod." i. pp. 34 — 52. " % Articles, wherevpon it was agreed by the Archbishoppes, and Bishops of both the prouinces, and the whole Cleargie, in the Conuocation holden at London, in the yere of our Lorde God, m.d.lxii. according to the computation of the Churche of Englande, for the auoydyng of the diversities of opinions, and for the stablishyng of consent, touchyng true religion. Put foorth by the Queene's aucthoritie, Imprinted at London in Powles Church Yarde, by Richarde Jugge, and John Cawood, printers to the Queenes Majestie." Cardwell's " Synod." i. pp. 53 — 72.] X [" Articuli de quibus convenit inter Archiepiscopos et Episcopos utriusque provinciae, et Clerum universum in Synodo Londini, an. Dom. 1562, secundum computationem Ecclesise Anglicanee, ad tollendam opinionum dissensionem, et consensum in vera religione firmandum. Editi authoritate serenissimae Reginee. Londini, apud MEMOIR OF HENRY LORD LANGDALE. 307 Archbishops and Bishops of both Prouinces, and the whole Cleargie, in the Conuocation holden at London in the Yere of Our Lorde God 1562, according to the com putation of the Churche of Englande, for the auoyding of the diuersities of opinions, and for the stablishyng of consent touching true religion." And by the statute (1571 — 13 Eliz. c. 12), it was enacted, that every ec clesiastical person should before Christmas day next fol lowing '' declare his assent and subscribe " to all those Articles, upon pain of being " deprived ;" and all his "ecclesiastical promotions" were to be "void, as if he then were naturally dead." And, further, " that if any person ecclesiastical should advisedly maintain or affirm any doctrine directly contrary or repugnant to any of the said Articles, and should persist therein, or after revocation eftsoon affirm such untrue doctrine, such maintaining or affirming and persisting should be just cause to deprive such person of his ecclesiastical promotions." There was now a doctrine of the Church of Eng land by law established: it was then, as it is now, to be found in the Articles* which were framed [in 1562] and in the year 1571 established, for the express pur pose of avoiding diversities of opinions and establishing Iohannem Dayum Typographum. An. Domini. 1571." Cardwell's " Synod." i. pp. 78 — 89. " Articles whereupon," &c. (as given by Lord Langdale in the text). "Put foorth by the Queenes au- thoritie. Imprinted at London, in Powles Churchyard, by Richarde Iugge and lohn Cawood, Printers to the Queenes Maiestie, in Anno Domini 1571." Cardwell's " Synod." i. pp. 90—107.] * [See Mr. Turner's Argument on this Statute, Moore's Case, &c. pp. 199, 201, 449.] x 2 308 MEMOIR OF HENRY LORD LANGDALE. of consent touching true religion ; or in the Articles as qualified, if need were, by expressions and directions, or statements contained in the Liturgy which in the time of Edward VI., and in 1559, under Queen Elizabeth, was established for the purpose of securing one uniform order of common service or prayer, and of the adminis tration of the Sacraments, rites, and ceremonies of the Church of England. XIV. FOURTH LITURGY, OR THIRD REVISION, 1604 (JAMES I.'s). Soon after the accession of King James, and the Conference called the Hampton Court Conference, the King caused certain alterations to be made in the Book of Common Prayer, and took upon himself by Procla mation * to " require and enjoin all men, as well eccle siastical as temporal, to conform themselves unto it," as altered, " and to the practice thereof as the only public form of serving God established and allowed to be in this realm." Amongst other alterations made, the Rubrics in the office for Private Baptism were altered, " so as," apparently, " to restrict the administration of that Sacrament to the minister of the parish, or some other lawful minister ; -f- " and the explanation of the two Sacraments was added to the Catechism. J * Cardwell's "Doc. Annals," ii. p. 76; "Conferences," 225. It was dated March 5, 1603-4. f [Such is the opinion of] Cardwell, '' Conferences,'' p. 144. X [Some other comparatively trifling changes were made; see Cardwell's "Conferences," pp. 143, 144. Lord Langdale notices only those matters which had more or less reference to the subject of Mr. Gorham's Appeal.] MEMOIR OF HENRY LORD LANGDALE. 309 XV. THE CANONS, 1604. Soon afterwards were published * the " Constitution and Canons ecclesiastical, treated upon by the Bishop of London, President of the Convocation for the Pro vince of Canterbury, and the rest of the Bishops and Clergy of the said Province ; and agreed upon with King's Majesty's license, in their Synod begun at Lon don, Anno Domini 1603, &c, and published for the due observation of them, by his Majesty's authority, under the Great Seal of England." These Canons are one hundred and forty-one in num ber. — The 36th relates to the " Subscription required of such as are to be made Ministers." The 39th, to the " Cautions for Institution of Ministers into Benefices." These Canons were never confirmed in Parliament ; but, so far as they are not repugnant to the general law, they have been deemed to be binding on the Clergy. XVI. DECLARATION PREFIXED TO THE ARTICLES (1628?) (CHARLES I.'s.) • Nothing to affect the Articles was done in the time of King James ; his successor caused the Declaration f * Cardwell's " Synodalia," pp. 164 — 244 [for the Latin Canons; pp. 245 — 415, for the English Canons.] f Rushworth, i. Append. 4 E. [Rushworth does not give the date of this " Declaration," but only King Charles I.'s allusion to it in his speech, March 10th, 1628. The earliest printed copy ofthe Articles to which this Declaration is prefixed, is the edition of 1628, by Norton and Bill ; and there can be no rational doubt that it was put 310 MEMOIR OF HENRY LORD LANGDALE. by which they are now accompanied to be prefixed to them, XVII. CANONS OF 1640. It seems unnecessary to take any notice of the Con stitutions and Canons agreed upon in the Convocation of 1640.* During the civil war, and the distractions which ac companied it, all authority to compel uniformity in doctrine or services was suspended. XVIII. FIFTH, OR PRESENT, LITURGY, 1662. FOURTH, OR LAST, REVISION (CHARLES II.'S.). After the Restoration, on the 25th of March, 1661, the King appointed a Commission of Divines, selected from the two parties whose opposing opinions created the greatest difficulty, to revise the Book of Common Prayer. Dr. Cardwell f has collected from the instruc tions given to the Commissioners, that the existing Book of Common Prayer was to be the basis of the future Liturgy; that it was fully to be considered and forth early in that year, or late in 1627. See a curious extract from Prynne's "Canterburie's Doom" (p. 160), and other information on this subject, in a note to Answer 62 of Mr. Gorham's Examination, p. 115, reprinted in Moore's Case, &c. p. 51.] * Cardwell's " Synodalia," i. p. 380. \ Cardwell's " Conferences," pp. 258, 259. [These instructions are gathered by Dr. Cardwell, from the King's warrant for the Con ference at the Savoy, dated 25th March, 13 Charles IL, 1661 ; printed in Cardwell's " Conferences," pp. 298 — 302. See, also, Mr. Turner's Argument, Moore's Case, &c. pp. 196 seqq.] MEMOIR OF HENRY LORD LANGDALE. 311 examined by both parties; that any objections or excep tions raised against it were to be entertained and dis cussed ; that it was to be compared with the primitive Liturgies, the acknowledged models of public worship; that if any changes were made, they should be such only as were reasonable and necessary for the satisfying of tender consciences, and the establishment of peace and unity ; and that no changes should be made in matters familiar to the people, and generally approved in the Church. In the Conference which took place, a leading objec tion was, " that throughout the several Offices, the phrase is such as presumes all persons (within the communion of the Church) to be regenerated, converted, and in an actual state of grace, which (had ecclesiastical discipline been truly and vigorously executed in the exclusion of scandalous and obstinate sinners) might be better sup posed; but there having been, and still being, a con fessed want of that (as in the Liturgy is acknowledged), it cannot be rationally admitted in the utmost latitude of charity." * And this objection is afterwards particu larly applied to expressions which occur in the Service of Public Baptism ;f in the Catechism ;| in the Ser vices for Confirmation^ for the Visitation, &c, of the Sick, || and the Burial of the Dead.f Among the eight points which the Nonconformist divines alleged to be contrary to the word of God, were these : — 4. " That ministers be forced to pronounce all * Cardwell's " Conferences," p. 308, Prop. XV. | Ib. p. 323 el seq. { Ib. p. 325. § Ib. pp. 327-8. || lb., pp. 331—333. 1f Ib. 265, 266, note. ' 312 MEMOIR OF HENRY LORD LANGDALE. baptized infants to be regenerate by the Holy Ghost, whether they be the children of Christians or not;" and, 7. " That they are forced to give thanks for all whom they bury, as brethren, whom God in mercy has de livered and taken to himself," The general answer of the Bishops is thus : * — " The Church, in her prayers, useth no more offensive phrase than St. Paul uses, when he writes to the Corinthians, Ga latians, and others, calling them in general the Churches of God, sanctified in Christ Jesus, by vocation saints; amongst whom, notwithstanding there were many who, by their known sins (which the Apostle endeavoured to amend in them), were not properly such; yet he gives the denomination to the whole from the greater part, to whom in charity it was due, and puts the rest in mind what they have by their Baptism undertaken to be, and what they profess themselves to be; and our prayers and the phrase of them surely supposes no more than that they are saints by calling, sanctified in Christ Jesus, by their Baptism admitted into Christ's congre gation, and so to be reckoned members of that society till either tbey shall separate themselves by wilful schism, or be separated by legal excommunication which they (do the Bishops mean the Nonconformist ministers?), seem earnestly to desire, and so do we." As to the prayers and phrases of them in the service for Public Baptism, after saying that they thought it " very hard and uncharitable punishing poor infants for * Cardwell's " Conferences," pp. 342, 343. [This was urged in Mr. Gorham's Examination, p. 157 (Moore's Case, &c. p. 80); and by Mr. Turner in his Argument, Moore, p. 451.] MEMOIR OF HENRY LORD LANGDALE. 313 their parents' sake, &c* " they proceed, — " Our Church concludes more charitably, that Christ will favourably accept every infant to Baptism that is presented by the Church according to our present order." That "itis an erroneous doctrine, and the ground of many others, that children have no other right to baptism than in their parents1 right." That it had " been accounted reasonable, and allowed by the best laws, that guardians should covenant and contract for their minors for their benefit. By the same right the Church hath appointed sureties to undertake for children, when they enter into Covenant with God by Baptism." " Baptism is our spiritual regeneration," so the creed says, " our Baptism for the remission of sins; and we may in faith say of every child that is baptized, that it is regenerated by God's Holy Spirit, and the denial of it tends to Anabap- tism, and the contempt of this Holy Sacrament, as no thing worthy, nor material whether it be administered to children or no." f Of the Catechism they say, that " the effect of child ren's Baptism depends neither upon their own present actual faith and repentance (which the Catechism ex pressly says they cannot perform), nor upon the faith and repentance of their natural parents or pro-parents, or of their god-fathers or god-mothers; but upon the ordinance and institution of Christ. But it is requisite that when they come to age they should perform these conditions of faith and repentance, for which also their god-fathers and god-mothers charitably undertook on their behalf. And what they do for the infant in this * Cardwell's " Conferences," p. 355. t Ib. p. 356. 314 MEMOIR OF HENRY LORD LANGDALE. case, the infant himself is truly said to do, as in the Courts of this kingdom daily the infant does answer by his guardian." * On the prayer before the imposition of hands in the service for Confirmation, they say, " It supposeth, and truly, that all children were at their Baptism regenerate by water and the Holy Ghost, and had given unto them the forgiveness of all their sins; and it is charitably presumed that, notwithstanding the frailties and slips of their childhood, they have not totally lost what was in Baptism conferred upon them." f Upon the Rubric before Absolution in the service of the Visitation of the Sick, they say, " If the sick person show himself truly penitent, it ought not to be left to the minister's pleasure to deny him Absolution, if he desire it ; and the condition needs not to be expressed, being always necessarily understood."! On the prayer following the 2nd rubric in the service of the Burial of the Dead, they say, " We see not why these words may not be said of any person whom we dare not say is damned, and it were a breach of charity to say so even of those whose repentance we do not see ; for whether they do not inwardly and heartily repent, even at the last act, who knows? and that God will not even then pardon them upon such repentance, who dares say? It is better to be charitable, and hope the best, than rashly to condemn." After this conference was ended, some alterations were made in the Prayer Book, and some additional * Cardwell's " Conferences," p. 357. t Ib. pp. 358, 359. \ lb. p. 361. MEMOIR OF HENRY LORD LANGDALE. 315 prayers were added by the Convocation; and the revised Liturgy was presented to the King in one Book, in December, 1661. By the Act for the Uniformity of Public Prayer, &c, (1662, 13, 14, Can. II, c. 4), it was enacted, that " all ministers should be bound to use and say the prayers and services in such order and form as is mentioned in the same book, and every minister enjoying any ecclesiastical benefice or promotion was, before the feast of St, Bartholomew, 1662, openly, pub licly and solemnly to read the Morning and Evening Prayer appointed by the Book, and was to declare his unfeigned assent and consent to the use of all things in the Book contained," in the words thereby appointed. And it was enacted, that " no form or Order of Common Prayer should be openly used in any church, chapel, or other public place of or in any College or Hall, in either of the Universities, the Colleges of West minster, Winchester, or Eton, or any of them, other than what is prescribed and appointed to be used in and by the Book, and the Governor or head of any College or Hall within a month after his election, or collation and admission, was openly and publicly to subscribe unto the Thirty-nine Articles, mentioned in the Statute of the 13th Elizabeth." The like provision was made for the case of lecturers.* * [Cardwell's " Conferences," pp. 369— 392. Also Mr. Turner's Argument before the Judicial Committee in Moore's Case, &c. pp. 196—199.] 316 MEMOIR OF HENRY LORD LANGDALE. CHAPTER XIX. THE SEQUEL TO THE GOKHAM CASE. The history of this important judgment would not be complete without a brief notice of the strenuous, but in effectual, legal struggle which immediately followed it, for the purpose of setting it aside altogether. Although the Bishop of Exeter had joined issue with Mr. Gorham in his Appeal to the Queen in Council, and had expressed no doubt ofthe jurisdiction of the Judi cial Committee of the Privy Council during the seven months which had elapsed from the notice of appeal, on the 2nd of August, 1849, to the judgment which was adverse to him on the 8th of March, 1850; yet he did not scruple (more than a month after that unfavourable decision) to raise a technical objection to the whole of these proceedings to which he had been a consenting party. 1. On the 15th of April, 1850, an application was made by the Bishop to the Court of Queen's Bench for a rule Nisi, " to show cause why a Writ of Prohibition should not issue to the Dean of the Arches, and to the Archbishop of Canterbury, to prohibit them from re quiring the Bishop of Exeter, or from proceeding themselves, to institute Mr. Gorham to the vicarage of MEMOIR OF HENRY LORD LANGDALE. 317 Brampford Speke, or otherwise carrying into execution an order of her Majesty in Council, made on the 9th of March, 1850, upon a report of the Judicial Committee of the Privy Council in an Appeal from the judgment of the Court of Arches in a suit of Duplex Querela between the said George Cornelius Gorham and the said Henry Bishop of Exeter." The objection was, that by the just construction of the ancient statutes, 24 Henry VIII., c. 12, and 25 Henry VIII., c. 19, the only Appeal given from the Archbishop's Court in all causes which touch the Queen is to the Upper House of Convocation. The Rule was applied for by Sir Fitzroy Kelly, in a statement distinguished by its ability, but was dis charged by the Court on the 25 th of April, at the sittings before Lord Chief Justice Campbell and Justices Patteson, Wightman, and Erie, who were unanimous in their judgment. The Court gave no opinion on the point whether this Duplex Querela was a cause which touched the Queen; her Majesty's right as patron of the vicarage of Brampford Speke not having been disputed. It held that, in practice, from the Reformation to recent times, in suits decided in the Archbishop's Courts in which the Crown has been concerned, Appeals have been allowed to the Court of Delegates, which Court has been replaced by the Judicial Committee of the Privy Council by the acts 2 & 3 William IV., c. 92, and 3 & 4 William IV. c. 41, s. 3. It cited one remarkable case, all but coeval with the statutes in question (3 Dyer, 273, a). Goodman, Dean of Wells, having been deprived, appealed to the Archbishop, and from the Primate to the King (Edward VI.) in Chancery, who, by his delegates, con- 318 MEMOIR OF HENRY LORD LANGDALE. firmed the sentence ; and the King conferred the Deanery on Turner. This case undoubtedly " touched the King " as much as Mr. Gorham's case could be held to do, for the King was patron of the deanery. On the acces sion of Mary a fresh commission of delegates reviewed the sentence, and restored Goodman. When Elizabeth came to the throne, Turner procured a fresh review by a commission of delegates, who removed Goodman and restored Turner. Goodman applied for one more com mission of delegates, who confirmed his deprivation, and Turner enjoyed the deanery to his death. Not a doubt was then raised respecting the appeal having been duly brought before the King's delegates in Chancery, under sec. 4 of the statute 25 Henry VIII., c. 19; nor was a thought entertained of referring the Appeal to the Con vocation, according to the construction of those ancient statutes now pleaded for by the Bishop of Exeter. The Chief Justice concluded his judgment by the observa tion : — " Were the language of the 25th Henry VIII., c. 19, obscure instead of being clear, we should not be justified in differing from the construction put upon it by cotem poraneous and long-continued usage. There would be no safety for property or liberty if it could be success fully contended that all lawyers and statesmen have been mistaken for centuries as to the true meaning of the Act of Parliament. We have been called upon to recollect that the Upper House of Convocation would be a much fitter tribunal than the Judicial Committee to decide such questions as arose in the Appeal between Mr. Gorham and the Bishop of Exeter. But, if this be MEMOIR OF HENRY LORD LANGDALE. 319 so (and if questions about wills, about marriages, and about tithes, which must follow the same rule, might likewise be better decided by divines than by judges regularly trained in the profession of the law, and accus tomed to administer justice in other courts), we cannot be influenced by any view to public policy. Sitting here, we can only interpret the law, and try to discover the intention of the Legislature from the language of the statute-book. Proceeding upon this principle, we all think that no reason has been alleged to invalidate the sentence in this case, on the ground that the Queen in Council, and the Judicial Committee, had no jurisdiction over the Appeal; and therefore we feel bound to say that a rule to show cause why a prohibition should not be granted to stay the execution of the sentence ought not to be granted." — Rule refused. 2. While the public were in daily and anxious expec tation of the termination of this long protracted cause, by the institution of Mr. Gorham by the Dean of the Arches, they were surprised, on the 2nd of May, to hear of an application to another of the Courts at West minster — the Court of Common Pleas — to the same effect as that which had been unsuccessfully made to the Queen's Bench, namely, to prohibit the Ecclesiastical Court of the province of Canterbury from carrying out the sentence of the Judicial Committee adopted by the Queen in Council. The rule Nisi was refused on the 27th of May, at the sittings before Lord Chief Justice Wilde and Justices Maule, Cresswell, and Talfourd. The judgment was very long and elaborate. The fol lowing extracts will indicate its result, with sufficient 320 MEMOIR OF HENRY LORD LANGDALE. minuteness as regards the purpose for which it is here noticed : — " It appears to this Court that the true construction of the statute 25 Henry VIII., c. 19, which applies to the Appeal that has been made in this case, is, that Appeals in all cases made under that statute may be made to the Queen in Council, whether the cause in which such Appeal may arise shall or not touch the Crown; and that, therefore, under the authority of the subsequent statutes, the Appeal was properly referred to the Judicial Committee of the Privy Council After due inquiry and investigation, no instance has been discovered of an Appeal in such cases to the Con vocation ; and the report made to us, that no such in stance can be found, derives a great confirmation from the circumstance that, notwithstanding the great interest this case has excited, and the great ability and industry that have been exercised in the course of its prosecution, the applicant has not suggested that any instance has occurred of such Appeal to the Convocation In determining upon the present application, we have at tentively considered the circumstances under which it comes before us. The litigant parties have concurred in prosecuting the Appeal to the Judicial Committee; and, after a decision has been coine to, an objection is, for the first time, made upon the ground of a want of jurisdiction in the tribunal. The case was elaborately moved before the Court of Queen's Bench; that Court has pronounced a deliberate judgment upon the construction of the statutes. The applicant has ex ercised his undoubted right of making a similar applica- MEMOIR OF HENRY LORD LANGDALE. 321 tion to this Court; and, when so doing, the learned counsel who made this motion, brought before us all the authorities that there is any reason to suppose have any bearing upon the subject; and (the Court of Queen's Bench having stated that there were several instances of Appeals to the delegates, founded upon the construc tion adopted by that Court) nothing was presented to us during the arguments in support of the application, tending to create any doubt of the accuracy of that statement; although we cannot but suppose that due investigation was made as to the fact of such instances having occurred, and of their applicability to the case. We have informed ourselves of the particulars of those cases, and no Appeal has been discovered to have been made to the Convocation. Under these circumstances we have every reason to conclude that further discussion will not furnish additional information or light upon the subject; and we think that it would not be con sistent with the due discharge of our duty, but would only tend to prolong an useless litigation to grant any rule The judgment of the Court, therefore, is, that there be no rule in this case." — Rule refused. 3. One of the most remarkable instances of per severance in a cause desperately hopeless, is afforded by the renewal of this attempt by the Bishop of Exeter to persuade the Courts of Westminster to grant him a Rule to show cause against his application for a Prohi bition. " Thrice " these Courts " slew the slain," be fore his Lordship could be convinced that the judgment which Lord Langdale had pronounced in the name of the Judicial Committee of Privy Council — in which the VOL. II. Y 322 MEMOIR OF HENRY LORD LANGDALE. two Archbishops had concurred — and which the Queen had confirmed — proceeded from a jurisdiction which it was impossible to shake by subtle and ingenious con structions of ancient Acts of Parliament, however elo quently argued, in the face of the undeviating practice of three centuries. Notwithstanding the very decisive judgments of the Courts of Queen's Bench and of the Common Pleas ; in which eight Judges were unanimous in their refusal of a Rule — the Bishop made one more application. — namely, to the Barons of the Exchequer, on the 7th of June. A Rule to show cause why a Prohibition should not issue, was, indeed, granted by this Court on the 11th of June; but it was induced to "take this step," as the Lord Chief Baron Pollock said, only under the circumstance of " the peculiar season of the year," the Term being at its close, and this measure being, con sequently, necessary, to give time for the pronunciation of " a deliberately considered judgment " at the sittings after Term, and before the long vacation — the postpone ment of a decision to Michaelmas Term being considered as " a delay prejudicial to all parties." Cause was shown against the Rule by Sir John Jervis, the Attorney-General, Mr. Greenwood, and Mr. Cowl ing, on the 29th of June. The Rule was supported on the 1st and 2nd of July, by Sir Fitzroy Kelly, Mr. Martin, Mr. Peacock, and Mr. Baddeley. On the 8th of July, Chief Baron Pollock pronounced a judgment by which the rule Nisi was discharged; Baron Rolfe, Baron Piatt, and Baron Alderson being present, and unanimously concurring. A very short MEMOIR OF HENRY LORD LANGDALE. 323 extract may serve to show that the Court of Exchequer took the same general view as the Courts of the Queen's Bench and of the Common Pleas. "We entertain considerable doubt whether the matter ' touches the Crown,' or not: but we have thought it unnecessary to decide this point, as we are clearly of opinion that there was an Appeal given by the 25th Hen. VIII. c. 19 to the King in Chancery, and therefore now there is an Appeal to the Queen in Council for the Judicial Committee, without any doubt, have been substituted for the Court of Delegates, and have (at the least) the same jurisdiction Entertaining, as we do, no doubt upon the question before us, and concurring with the other Courts of Westminster Hall, and, as far as we know, with every Judge of all the Courts, we do not think that we should be justified in creating the delay and expense of further proceedings with a view to take the opinion of the House of Lords; and our judgment is, that the rule be discharged, with costs." Rule discharged. 4. Some intimations had been given that the applica tion for Prohibition would still be prosecuted by the Bishop in another, and the only Court remaining open for such a step — that of the Petty Bag in Chancery. If such an idea were ever seriously entertained, it was pro bably abandoned from the consideration of the very de cisive character of the judgment by the Barons of the Exchequer, and the intelligible hint of the vexatious character of these proceedings by adjudication of costs to Mr, Gorham. Moreover, it was a reflection which could not but have discouraged the most pertinacious litigant, Y 2 324 MEMOIR OF HENRY LORD LANGDALE. that twelve Judges had unanimously decided unfa vourably to the applicant; and that one of the most eminent of them had declared that probably all the Judges of all the Courts held the opinion which twelve had expressed. This long agitated matter (it had been disputed for three years between the parties, and had occupied two years in five courts of law) was, at length, brought to a termination. The important declara tion of the Judicial Committee of the Privy Council (of which I have thought it right to give so extended an account in this chapter, as constituting a remarkable event in the legal life of Lord Langdale) now took effect; the cause, so decided, having been adopted by the Queen in Council, and, consequently, " remitted with that declaration to the Arches Court of Canterbury, to the end that right and justice might be done in the matter." Mr. Gorham was instituted to the vicarage and parish church of Brampford Speke, in the hall of that Court, by Sir Herbert Jenner Fust, the Official Principal of the Archbishop of Canterbury, on the 6th of August, 1851. MEMOIR OF HENRY LORD LANGDALE. 325 CHAPTER XX. LORD LANGDALE'S DISPOSAL OF HIS PATRONAGE. MR. SANDERS. — MR. LE DIEU. THE DEPUTY KEEPERSHIP OE THE RECORDS. THE TAXING MASTERS. THE SIX CLERKS. — HIS INTERCOURSE WITH THE AUTHOR. — HIS PRIVATE LIFE. LOVE OP CHILDREN. KINDNESS TO HIS DEPENDANTS. KEEN SENSE OF HONOUR. Speaking of that coveted appendant to office — patronage, Lord Langdale once said, " If you have to give away a place, and only to seek out a person to whom it will be agreeable to receive the profit of it, there seems nothing pleasanter than patronage; but if, in the exercise of patronage, you conscientiously en deavour to find out a person who is really deserving, and the most deserving and the best able to fulfil the duties of his intended situation, there is nothing more painful or difficult to accomplish. You will have to inquire into means, capacities, and qualifications, which cannot easily be ascertained, but which it is of the utmost importance to ascertain, in order to get the proper person, and to create a general persuasion that merit will be duly considered. The difficulties are greater than a man without, a good deal of experience is apt to imagine." The foregoing sentiments were not mere words of course ; he acted up to their spirit in every appointment he had to make. 326 MEMOIR OF HENRY LORD LANGDALE. He did not even seek his Chief Secretary from amongst his friends and relatives, but selected for that office a gentleman with whom, except as a member of the same bar, he was unacquainted, conscientiously believing from all he had heard, that he could find no one better qualified for the appointment. The gentleman in question was Mr. George W. San ders, a Chancery barrister and conveyancer, who, at the time, was passing his Christmas vacation in the country, and who had neither solicited nor thought of the ap pointment. Lord Langdale made no change among the other officers and attendants at the Rolls, and he would never for a moment listen to the suggestions for the exercise of his patronage by removal of any officer against whom no fault was charged, whether originally appointed by himself or not.4:" * Mr. Le Dieu informs me that as soon as his master was appointed to the Rolls, he applied to him for the office of Under- Secretary. " That I cannot give you," was the reply. " Mr. Murray has held that office many years, and done his duty well. I will not remove him, or any one who has not committed a fault." I cannot resist following Mr. Le Dieu's fortunes a little further, because the facts connected with the appointment which his master gave him, bring out another strong feature in Lord Langdale's character, and prove the correctness of the opinion of the writer of that truthful and elegant memoir of his Lordship, which appeared on the death, in the " Times " newspaper. His whole life was unsullied by the sus picion of a job, or of being influenced by any but the loftiest motives of action. Mr. Le Dieu continues : " I said, ' Will you think it right to give me the office of the First Gentleman of the Chamber % ' ' That is what I thought of,' he answered ; ' but, about the salary — for I mean it to be a salary, and not an uncertainty depending on fees — what are your notions upon that point ? ' I replied that ' Sir C. C. MEMOIR OF HENRY LORD LANGDALE. 327 On his subsequently receiving the Great Seal as First Commissioner, the appointment to every office attendant upon the Great Seal fell into his hands ; but he made not the slightest change, though there were not wanting persons who pressed him to do so. The way in which his Lordship requested Mr. Sanders to give assistance in his laborious office, by becoming his Chief Secretary, was as flattering and honourable to Mr. Sanders as it was kind and considerate in Lord Langdale. The new Secretary soon acquired the friendship and unbounded confidence of his patron, and he retained them to the end. On accepting office he gave up his practice at the bar, in order to devote himself exclu sively to his new duties, and his assiduity and attention were rewarded by the esteem and high opinion which Lord Langdale entertained of his merits. In writing the history of a life, not only truth but artistic skill demands that the shadows as well as the lights should be pourtrayed. In the case of Lord Lang- Pepys had promised his clerk something better than he had while in his private service, and yet had only given him 300L per annum : but that Lord Lyndhurst, when Master of the Rolls, had given his clerk, whom he appointed to the same office, 700Z. a-year; and, moreover, when any surplus in the fees occurred, he invariably desired him to put it into his pocket.' Some days after, Mr. Bickersteth settled the matter with me by giving me the appoint ment, and fixing the salary at 500/. per annum, saying, at the same time: ' I wish to pay you liberally and properly, but I object to heap upon you an income for which you will not have it in your power to return adequate services. I think Sir C. C. Pepys' arrange ment was too low, but Lord Lyndhurst's is beyond my notion of what is right. I therefore take the mean between them.' " 328 MEMOIR OF HENRY LORD LANGDALE. dale there is hardly sufficient shade in his character to throw out his virtues in the relief that they deserve. A life spent in a constant exercise of good without evil, is like a boundless cultivated plain without the relief of rock and mountain, river and cascade. When Lord Langdale retired from public life, Mr. Sanders, as the result of that retirement, was thrown out of office. This circumstance, in the eyes of some, has cast a shade upon Lord Langdale's retirement ; but it was not in his power to secure the Secretaryship to him, or he would have done so. That he might, by asking, have obtained from other hands the means of rewarding the services of Mr. Sanders, cannot be doubted; but I have already more than once asserted that to ask for patronage was against his nature. What ever he could himself do, he was prepared to do, but he had laid down a rule never to ask a favour, and he could not break through it, even under such urgent circum stances as these, it had become a part of his spiritual self. Had his only child been placed in the like pre dicament, love and affection would have been sacrificed to duty ; the heart might have broken, but his conscience would have been at rest. His kind feeling towards Mr. Sanders was sufficiently apparent, for whenever an opportunity occurred he was anxious to promote his interest, by engaging him in important duties of a public nature unconnected with the Rolls. Thus he brought him forward to act as Secretary to the Chancery Inquiry, in 1841, and he procured the insertion of his name as Secretary under the Royal Commission to inquire into the Registration MEMOIR OF HENRY LORD LANGDALE. 329 of Deeds, and the simplification of the forms of Con veyance. It is a singular circumstance that during the fifteen years of Lord Langdale's tenure of office, no patronage became vacant except the comparatively unimportant office of Usher of the Court of Chancery, which he be stowed on Mr. Le Dieu. Of the patronage of the Petty Bag, he had already in effect dispossessed himself, for he had determined not to supply any vacancy except temporarily, and with a view to a total extinction. The Six Clerks' Office he pro cured to be absolutely abolished, and the new office of Clerks of Records and Writs, and of Clerks of the Enrol ments, he filled up by persons of the most experience, taken from the abolished establishment of the Six Clerks. No vacancy afterwards took place in either of those offices ; and with respect to the Examiners' Office, the same gentlemen whom he found in place as Examiners when he ascended the Bench, continued such when he quitted it. To my certain knowledge, the first adequate and per manent appointment which should fall under his power as Master of the Rolls, had long been destined to pro vide for and reward Mr, Sanders; but his intentions were, unhappily, frustrated by the state of his health, which abruptly compelled his own retirement from office. The new Vice-Chancellor, Sir George Turner, most kindly endeavoured to alleviate, as far as lay in his power, the distressing situation in which Mr. Sanders was left, by appointing him his Secretary ; it therefore gave Lord Langdale great joy when he heard of it; 330 MEMOIR OF HENRY LORD LANGDALE. and on the 2nd of April, 1851, his Lordship writes thus to Mr. Sanders (perhaps the last letter he ever wrote.) : — " My dear Sanders, " I most cordially rejoice at your appointment, how ever small and inferior to your merits — it is, in many ways, of great importance to you ; and I am glad for Turner's sake as well as for yours : his kindness has been great — I suppose his appointment is certain, though I shall not write to him till I hear more. You may see by my writing, which is caligraphy to what it has been, that I cannot do much to the papers which Bevan has been kind enough to get ready for me. I believe I must give up the hope of doing any more to them, and if you please I will send them to you. I shall anxiously hope to hear of something else occur ring for your benefit. Most truly yours, Langdale." Lord Langdale's next piece of patronage was the office of Deputy Keeper of the Public Records ; and he gave it up to the Treasury for the purpose of effecting a saving in the retiring allowance of the gentleman who was appointed to it. The third piece of patronage which fell to him did not come by right of his office, but by gift ; I allude to the appointments of the Taxing Masters of the Court of Chancery, which Lord Lyndhurst, then Chancellor, gave up to him, stipulating only for the appointment of one MEMOIR OF HENRY LORD LANGDALE. 331 gentleman in particular, so that he left the nomination of the three others to Lord Langdale, the only limita tion being, that by the act of parliament they must be solicitors. Lord Langdale accordingly, disregarding all the applications and recommendations of friends, looked, as in the case of the Records and Writs Clerks, to the abolished establishment of the Six Clerks to supply the required officers, and having found two whose practice and experience promised all that could be expected, he at once selected them; the third remained to be filled up. One gentleman was pressed upon him by two of the Vice-Chancellors; his "qualifications were admitted, but his chance was small — he was a connexion by mar riage. No fitter person, however, was thought of, and at last his Lordship assented to the appointment, saying, "It is hard that the fact of having married my cousin should stand in his way, especially as I know he is highly qualified for the office." I have often heard this anecdote related, and by some called morbid conscientiousness, and by others a want of moral courage, by paying too much regard to the opinions of the world ; but I am inclined to attribute it to cautiousness, or rather to a dread lest his private affection should, even against his will, influence his public conduct. That Lord Langdale did not value his patronage is quite clear from the instances I have given above ; and on the occasion of the Six Clerks' Office being abolished, which was chiefly effected through his instrumentality, he said, "I shall sleep sounder to night than I have done for some time, as I have done away with sinecures 332 MEMOIR OF HENRY LORD LANGDALE. in the gift of the Master of the Rolls to the amount of 5,00(W. a year." As to my own connexion with Lord Langdale I may mention that I had been for some time engaged in pre paring a History of the Officers of the High Court of Chancery, when my intention became known to him, and he immediately placed the whole of his collection of manuscripts relating to the subject in my hands, and among them a list of the Lord Chancellors, Lords Keepers of the Great Seal, and Masters of the Rolls, with permis sion to make any use of them I might think proper. As this list was the ground-work of the volume I published under the title of " A Catalogue of the Lord Chancellors, Keepers of the Great Seal, Masters of the Rolls, and principal officers of the High Court of Chancery," I thought it right to dedicate the volume to him in the following words : — "to the right honourable henry lord langdale, master of the rolls, etc. " My Lord, " Your high judicial station and eminent character would fully justify my desire to inscribe this volume to your Lordship ; but as I am indebted to your kindness for the plan and principal portion of its contents, I should be ungrateful were I not thus publicly to express my acknowledgments. If, however, I had not such an excuse for connecting your Lordship's name with these pages, your constant exertion for the advancement of historical and antiqua rian literature, and the liberal access which you have MEMOIR OF HENRY LORD LANGDALE. 333 afforded to the important national muniments placed under your care as Keeper- General ofthe Public Records, would fully account for the liberty I have taken. I have the honour to be, my Lord, with the highest respect, your Lordship's very humble and obliged ser vant, T. Duffus Hardy." His Lordship, however, objected to the dedication on the ground that I had made too much of the assistance he had rendered, and requested me simply to inscribe the volume to him, which I did thus : — " This work is respectfully inscribed to the Right Honourable Henry Lord Langdale, Master of the Rolls, &c, by his humble and obliged servant, Thomas Duffus Hardy." His own copy contained the dedication, but he, on more than one occasion, refused to lend it on that account, and actually bought another copy to lend to his friends. Connected with this volume another anecdote occurs to me which is also very characteristic of his mind. I sent him, of course, the first copy of the work that was made up, upon which he wrote immediately to thank me, and in his letter he said, " I confess that I regret a passage in the note about Lord Plunkett, ' on account, it is believed, ofthe strong dissatisfaction expressed by the bar at having a member ofthe Irish bar placed in that high office? It was an unworthy dissatisfaction, and the statement of its effects appears to me likely to be injurious." On seeing me the next day he expressed much stronger dissatisfaction at my note. He said, among 334 MEMOIR OF HENRY LORD LANGDALE. other things, " The Irish bar would naturally object to have English Chancellors or English officers appointed in Ireland, if the English bar objected to have Irishmen appointed to high judicial offices in England." As his Lordship seemed to regret so very much the passage in the note, I cancelled the sheet, and removed the objec tionable words. While on the subject of cancellations, I may mention another anecdote which shows the high tone of his mind. In my general introduction to the " Monumenta Historica Britannica," p. 11, No. I. I quoted a passage from the " Quarterly Review," vol. xxxiv. p. 295, which was said to be written by Sir Francis Palgrave, Deputy Keeper of the Public Records ; the passage was this — " Bishop Gibson writing July, 1694, to Dr. Arthur Oharlett, Master of University Col lege, says, " Sir John Marsham's collection must be con siderable. There is a curious ' Ingulphus' in your library, which, as his family says, Obadiah Walker stole from him. I told him what they lay to his charge. His answer was, that Sir John gave it to him ; and that, as an acknowledgment, he presented him with some copies of the ' Ingulphus ' printed at Oxford. It is very pro bable, though, Sir John did not design to part with the books ; nay, he used to be complaining of Mr. Walker for using him so unkindly ; but the old gentleman has too much qf the spirit of an antiquary and great scholar to think of stealing a manuscript any sin. He has ordered me not to discover where it is lodged." The passage in italics Lord Langdale desired might be omitted, or marked with the indignation it deserves. He said such a statement coming from a Bishop, and MEMOIR OF HENRY LORD LANGDALE. 335 brought forward by the Deputy Keeper of the Records, and cited by one of the Assistant-Keepers of the Public Records in a grand national work, published at the expense of the Government might lead people, and foreigners especially, to think it was held no sin in a great scholar and spirited antiquary to steal a manuscript; the objectionable passage was accordingly removed. It is not from a separate analysis of a man's public or private life, that we can judge of him correctly; both must be taken in conjunction ; for he who is stern and inflexible in public, is often mild and complying in private, and the hero and philanthropist abroad is fre quently contemptible and mean at home. We must view a man within and without the domestic circle, if we would form a true estimate of his character. Lord Langdale was essentially a domestic man; his tastes were simple and refined, and there never existed a human being who more thoroughly enjoyed home pleasures, especially after sitting the whole day long in a crowded court, exerting his brain, and labouring to discover right from wrong. Home was to him a haven of rest; there in the society of those he loved he en joyed a brief repose from the harassing cares of office. One of the few relaxations he allowed himself was riding with Lady Langdale, and when their daughter was old enough she was added to the party. In their little excursions he would not allow anybody to take care of her but himself, and until she was old enough to guide her pony, he invariably held her leading rein. To her, his only child, he used to devote a great por tion of his few moments of leisure. She used to be 336 MEMOIR OF HENRY LORD LANGDALE. brought, when an infant, into his library after dinner, and he would amuse her by playing at the game called follow my leader, through the intricacies of chairs and tables, and at hide and seek. When she grew older, she used to sit perched on the library steps engrossed by a book, while he worked before breakfast, deep in papers. He would, when not overpressed by business, teach her some simple scientific matter, such as he deemed it would be useful for her to know. Her earliest religious ideas were imparted by him. He read aloud most ad mirably, particularly poetry, and was most anxious to teach her to do so likewise. In the half hour before breakfast, he would hear her read Milton aloud, and would make her read some passages over five or six times, until he was satisfied with her rhythmical enun ciation. Speaking of her lamented father, Miss Bickersteth writes : — " When he had any friends with him in the library whose conversation he thought I could understand, he always called me in, and I have often sat there listening for a long while together. His love of neatness was exemplified in the garden by his dislike to seeing any weeds in the turf, or any unevenness in the ground ; not that he disliked slopes, but wished them to be regular. He would sometimes be jokingly vexed with my mother for not sympathizing in the grievance of double slopes. The garden at Roe hampton was entirely planned by him, and he carefully made all the beds in true mathematical figures, and, MEMOIR OF HENRY LORD LANGDALE. 337 strange as some of them looked, I believe they might all be found in Euclid. In his library he was very particular about the cata logue, and had two, — one alphabetical, the other a press list ; but these were practically of little use to him, from his constant love of changing the places of the books, partly to make room for new comers, partly to change; and while he was well enough to be interested and busy, a vacation rarely passed without a general re-arrange ment; however, he always knew where every book in the house was to be found. While he was well enough, philosophical books were what I think he preferred. He always took great delight in the writings of J. S. Mill, and James Mill. He was very well read in French literature, one of his favourite writers being Daunou; Guizot, too, and Thierry, Mi- chelet (for amusement), and Mignet; Auguste Comte he thought heavy and unreadable, but liked Victor Cousin. He was fond also of French memoirs, and was amused by turning over the modern Socialist pamphlets. Bacon, as you know, was always a special favourite, and in the same catalogue may be put Locke. As to Bacon, he never travelled without the ' Apophthegms,' ' Novum Organum,' and ' De Augmentis,' which he carried in his desk, with ' Tasso's Aminta,' and ' Redi's Bacco in Toscana,' and these five little volumes were such especial favourites, that though unable to do any thing else, he packed them up himself the day before he went to Tunbridge Wells. The Bacon, indeed, was the last book he ever read. He always took delight in the chief English poets, and having a very excellent VOL, II. Z 338 MEMOIR OF HENRY LORD LANGDALE. memory, would often quote passages he had learnt in youth. fe As a boy he was an excellent botanist, walking twelve miles and back in search of rare plants, which he used to dry on his return, and preserve. His love of this science always remained unimpaired. Such a man had, of course, an intense admiration of the heroic. From old recollections of Italy, he took a lively interest in the fate of that country, particularly in the resistance of Venice to the Austrian arms. He greatly admired the present Prime Minister of Piedmont, Massimo D'Azeglio. The two men that I think he the most admired, were Sir John Moore and General Sir C. Napier, whose cam paign in Scinde he greatly praised. The love of children was a remarkable point in his character from the earliest age. I must not omit one trait belonging to his love of children. The day before his last journey to Tunbridge Wells he was more indis posed than usual, and was lying on the sofa, when his servant maid brought in a little orphan baby, the child of one who had been his servant. He desired to look at it, and I suppose the infant was pleased with his counte nance, for it smiled and held out its little arms to be taken by him. He took it and fondled it, and seemed all the better for its visit." He used often to insist on the necessity of a mediator in the bringing up of children, and how they were to be encouraged in their penitence when a fault had been committed. There was hardly any subject on which he would be MEMOIR OF HENRY LORD LANGDALE. 339 so serious as concerning the responsibility of parents; he used to call it awful, and to say that no action, no word, however slight, was done or said without leaving its trace on the child's mind. After his family and his books the garden was a great source of pleasure to him ; he made plans on paper, and afterwards worked them out by rule, on the ground itself, for the flower-garden at Roehampton, and it was a great solace to him to walk or sit there after the fatigues of the day. He used to carry acorns or bits of sugar in his pocket to give to a young foal he kept in the meadow adjoining to the garden ; and this animal knew his step, and used to come galloping to meet him. He was peculiarly kind, hospitable, and attentive to the comfort of those beneath his roof. Mr. Sanders, speaking of his visits to Templeton House, says, " Lord Langdale's habit was to show me to my bed-room ; and himself to see that I was provided with the proper com forts and conveniences." He was peculiarly kind to the servants of his house, from the highest to the lowest. He used to say that they formed a part of his family, and had a right to his consideration and kindness. Once when his servant Edward was taken ill, he had his knocker tied up, and the bell muffled; and also put off a formal dinner-party, lest the noise and bustle might be too much for him. He even attended the bed-side of the patient, and himself gave him medicine, because he had refused to take it from any other hand. This man, however, presumed too much upon his mas- z 2 340 MEMOIR OF HENRY LORD LANGDALE. ter's kindness, and lost his situation; but Lord Langdale gave one hundred guineas to set him up in business. It was not only to the inmates of his own house that he extended his care and attention. He considered it the duty of heads of offices and establishments to afford all the protection, countenance, and support in their power to those under them ; and in every instance where occasion offered he put his theory into practice. One of the messengers of the Public Record Service had leave of absence given to him for a week, and be fore leaving the office for the holiday packed up his working or office-coat in a sheet of brown paper, to take home to get repaired. One of his fellow-workmen, formerly in the City Police, had a spite against him, and as soon as he left the office followed him, and gave him into the custody of the first policeman he met for havinc in his possession a sheet of paper which was public pro perty. The man was taken to the police office, locked up all night, and carried on the Monday following be fore the magistrate, who, having heard the charge, com mitted him to Newgate for stealing a sheet of the public paper, valued at one farthing. On the matter being re ported to Lord Langdale he sent for his own solicitor, and desired him to have the man defended at his trial with as much care as if he were his own child ; and Mr. Bannatyne and Mr. Hobler were engaged for the defence. The grand jury, however, on hearing the bill, instantly ignored the bill with strong expressions on the impro priety of its having been sent before them. Lord Langdale then gave the messenger a long lec ture on the necessity of never appropriating anything MEMOIR OF HENRY LORD LANGDALE. 341 that was not strictly his own. He said that no one would be justified in even writing a letter on private business on the Government paper, and though he be lieved it was done by every person in the public employ ment from the first Minister of the Crown, yet, never theless, it was wrong. He then paid the solicitor's bill out of his own pocket. Upon the man thanking him for his kindness he stopped his thanks, saying, " I dare say you would have done as much for me had you been in my place and I in yours." His sense of honour was keen almost to fastidiousness, as the following anecdotes will exemplify. In his chambers in Fig-tree Court, Temple, before he had a silk gown, there was a little room, a favourite one in summer, in which he could never sit in the winter, for the chimney smoked beyond endurance, and he had tried all manner of experiments to cure it. On being made King's Counsel he found it necessary to remove to a more eligible position, and of course wished to let the chambers he then occupied, but he was in a state of some excitement lest the laundry woman should not tell every person who applied for them that the chimney smoked, so he wrote in large letters on a sheet of paper, and placed it over the mantel piece in the room, '' The chimney of this fireplace smokes incurably, and every experiment has been tried to remedy the evil and no expense spared." He had purchased a blood-mare for eighty guineas, which he found was given to shy ; and she one day threw him, and injured him considerably,— he was, conse quently, persuaded to sell her ; and though two or three 342 MEMOIR OF HENRY LORD LANGDALE. of his friends offered to buy her at the price he gave, he refused, but sent her to the Horse-mart with a certifi cate, which he made the auctioneer read when the lot was put up, stating that the mare was very much ad dicted to shying, and had thrown its owner and very much injured him. One of the friends to whom he had refused to sell it, nevertheless bought her at the public sale for 25/., and had her for several years. I have frequently had occasion to mention his con scientiousness — the following anecdote is very charac teristic of that feeling : — His Lordship had desired Mr. Le Dieu, his first gen tleman of the chamber at the Rolls, to keep a book in which he entered minutely, every day, a record of the times of the sitting and rising of the Court, of the causes and motions heard, and of the judgments delivered. On Mr. Le Dieu wishing to show this book (of which he is rather proud) to Vice-Chancellor Wigram's clerk, for the purpose of making it appear how regular his Lordship had been in his sittings, and how much busi ness had been got through, Lord Langdale objected to his doing so, saying, — " It was made for my private information only;" adding, " I keep a stricter account between my conscience and myself than I intend to keep between myself and the public." The peculiar delicacy of his character frequently in duced him to allow another to receive the credit that was due to him; for instance, when Lord Cottenham moved an amendment in the Drainage Bill, he made no allusion to Lord Langdale, who had sat up three or four hours the previous night, framing the very amendment MEMOIR OF HENRY LORD LANGDALE. 343 which was so approved. " You see," said Lord Lang dale on that occasion, " how public history differs from private truth." Indeed it may be safely stated, that most of the late Chancery reforms were suggested by himself, and carried out by others, who never gave him any credit for his thought or assistance. He had a great dislike to attract attention towards himself, and he would suffer any inconvenience rather than do so. Since he had been suffering from the gout he had been accustomed to have a footstool put on the bench, but as Mr. Le Dieu did not come to put it there till just before his master was going into Court, when it was, of course, full, — Lord Langdale would not let him take it at all, and said, — " I believe these people like making a fuss ; all the Court would be staring if he were to take it now. I used to have tea for luncheon at first; but one day I heard Russell, the usher, crying out, — ' Make way there for the Master of the Rolls' tea,' and I never could bear to have it afterwards." Lord Langdale hated idleness, and was never without occupation of some sort ; if he was not engaged in getting up his judgments, he was sure to employ himself upon some other public business, such as the Record Service, the Registration Commission, or framing orders in Chancery ; or drawing bills and clauses to effect some reform in judicial matters. " After breakfast," writes Mr. Sanders, " I walked over to Roehampton, and called upon my Lord. He was very well, and said that the long vacation and the fine weather, made him very idle. Talking of the Seckford 344 MEMOIR OF HENRY LORD LANGDALE. Charity, he said: — He wanted to collect and hand down to his successors, an account of the several mat ters in which the Master of the Rolls is concerned : such as the Seckford Charity, Queen Elizabeth's College, British Museum, Ecclesiastical Commission, Reduction of the National Debt, Caledonian Canal, &c." Though he made every excuse for the errors of others, he scrupulously watched his own. He often said that conscience, in ninety-nine cases out of a hundred, would determine whether actions were right or wrong. He was never exactive, unless by being passive he seemed to countenance a wrongful act ; then his notions of justice and right forced him to require others to perform the duties he exacted from himself. MEMOIR OF HENRY LORD LANGDALE. 345 CHAPTER XXI. FAILING HEALTH OF LORD LANGDALE. — HE RETIRES FROM THE BENCH. PARALYTIC SEIZURE. — DEATH. THE TRUTH HIS BEST EPITAPH. Up to the year 1848, Lord Langdale's health was generally good, and he was never out of spirits except when he felt languid and unwell. He was, however, subject to the gout, and, speaking of it, he said, " When the gout is once out, it does not affect my spirits or my temper. The only thing that affects my temper is my liver being out of order, and then I am as cross as the very deuce." In the month of January, 1844, he complained of feeling very cold in his legs, so much so that he used frequently to sit in Court with a shawl thrown over them, and on the 18th of that month, he was seized with a numbness in the legs and thighs, but nothing serious then arose from it, and he continued to enjoy his usual health until 1847, when, as he was leaving the Privy Council Office, on the 24th of June, on descend ing the last of the door-steps, he fell at full length on the pavement in the street. He was much bruised and shaken, yet he would sit in Court the next morning, though looking very unwell. This was evidently some affection of the brain, as he fell as if he had been shot, without a slip. 346 MEMOIR OF HENRY LORD LANGDALE. The sittings of Easter Term, 1848, commenced on the 10th of April, on which day Lord Langdale took his seat at ten o'clock, but was so very unwell (having, indeed, been seriously ill during the holidays) that after disposing of a few urgent matters, which occupied about half an hour, the Court rose, and at the urgent solici tation of the bar, was adjourned until the following Saturday, 15th of April, being the first day of Easter Term, but before he left the Court he wrote to the Lord Chancellor to tell him of it. During seven days of these sittings the Master of the Rolls was too much indisposed to attend to business; and it may be here stated that up to this time he was never absent from his Court on any cause whatever, except when his judicial business called .him elsewhere. He was again taken ill while sitting at the Judicial Committee of the Privy Council, on Saturday, the 3rd of July, 1848, and was obliged to leave.On the 28th of February, 1849, he had another fall at his own home, down a step which he did not see, and bruised his forehead badly; he said, however, that the fall did not in any way arise from giddiness of his head. I am now approaching towards the close of Lord Langdale's judicial career. In the long vacation of 1850, it was his Lordship's turn to perform the duty of the vacation judge; he him self having introduced the practice of an Equity Judge attending to urgent business during the long vacation. In consequence of the illness of the three judges of the Court of Chancery, the amount of additional labour MEMOIR OF HENRY LORD LANGDALE. 347 thrown upon the remaining two was enormous. On the death of the Vice-Chancellor of England it was not deemed expedient to fill up the place, because the act of Parliament had provided that the third Vice-Chancellor should not be a permanent appointment, and Sir James Wigram had not then resigned. Owing to all these causes, at the conclusion of the regular sittings of the Court of Chancery, much business remained undisposed of, and Lord Langdale sat in his private room at the Rolls for many days, from ten in the morning till near six in the afternoon, to the manifest injury of his health. At length, on the 17th of September, he be came so seriously ill, as to be compelled to cause the withdrawal of the notice, that the Master of the Rolls would attend to urgent business in the long vacation. Dr. Paris, who was consulted, in addition to Lord Lang dale's ordinary medical adviser (Mr. Newton), per emptorily forbade all mental application, and almost as peremptorily recommended removal from home. On the 1st of October (as soon as it was deemed safe to travel), he went to Tunbridge Wells, and the bracing air of that place, joined to " leading the life of a cabbage," as he expressed it, produced so favourable a change, that he insisted on returning home, after about a fortnight's absence, but he was still unable to attend to business. He resumed his attendance at his Court at the opening of Michaelmas Term, and during the Christmas vacation was so much better, that he completed four or five judg ments, which he had been obliged to reserve from the sittings of 1850. 348 MEMOIR OF HENRY LORD LANGDALE. On the 19th of January, 1851, Lord Langdale com pleted his fifteenth judicial year; the period the country has considered necessary for a judge to hold office before he is entitled to a retiring pension for his services. But one of his predecessors had sat in the same jus tice-seat for so long a time, and none had given more general satisfaction to suitors, to his bar, his officers, and the public than himself, but his increasing ill health rendered it necessary for him to cease from his labours. He had signified as much to Lord John Russell during his indisposition in the autumn of the preceding year, and the Premier, on the 17th of December, requested him to delay his resignation for a short time. The ministerial crisis, however, occurred about the middle of February, and Lord Langdale, with his usual kind feeling for others, was much impressed with the danger of disappointment to which the Attorney-General (whom public rumour designated as his probable successor) might be exposed on the sudden vacancy of the Rolls ; and he, therefore, declined sending in his resignation until the crisis was over. Few men can take leave of an office or a profession which has occupied the principal portion of their lives without deep emotion ; the mind will recall the various scenes of joy and sorrow, of struggle and prosperity, it has witnessed during the time. Where want of success and failure in our enterprises have entirely arisen from our own fault or incapacity, and we have missed the goal towards which thousands in common with our selves, have been hastening, the predominant feeling of MEMOIR OF HENRY LORD LANGDALE. 349 the mind is disappointment, perhaps disgust, at oppor tunities lost, or at our own inefficiency to cope with, or perform duties required for the occasion, the emotion at taking leave of an occupation under such circumstances is not of the pleasurable or enviable kind ; — but when the eminent man leaves an employment through which his success has arisen, and he takes a glance at the occasions which produced the line of action which tended towards the consummation of his wishes, there will be a sense of pious thankfulness to the Disposer of Events, for giving him the opportunity, as well as the ability, to make it available to himself. The great prizes in the game of life are few in number, not one in the million to the blanks, and those who obtain them ought to feel that they have been especially selected by Providence to fulfil some great end in view of the Almighty's mind. If such be the case, and which of us will dare to doubt it? how awful must be the responsibility of a Judge — he who is chosen to administer justice between man and man, to dispense on earth what God himself will dis pense in Heaven ! It is a solemn thought, and he who has a true sense of his position must feel deeply the serious obligation of his office. A Judge should be a stranger to prejudice, injustice, and revenge, and if any of those feelings has ever actuated a single decision, a sense of shame must oppress him when he bids farewell to that seat that has been dishonoured by the act; but the con scientious and upright man, who has endeavoured to the utmost of his power to dispense justice to all, and show favour to none; who has spared neither pains nor time 350 MEMOIR OF HENRY LORD LANGDALE. to unravel the knotty and complicated points which ignorance, design, or indifference created, must feel an elevated pride: and surely no Judge who ever graced the British Bench could, in regard to the scrupulous uprightness of his decisions, take a higher place than Lord Langdale. On the 4th of March, 1851, Lord John Russell sent the following short note to Lord Langdale : — " My dear Lord Langdale, " As when I saw you in January I asked you to delay your resignation that we might not have new elections at the very moment of the meeting of Parlia ment, I write now to say that I do not wish any further to interfere with your health or convenience. Yours truly, J. Russell." Lord Langdale immediately wrote to Lord John, stating his readiness to send in his resignation, if he could inform him to whom it should be addressed; and upon learning that it might be sent either to the Home Secretary, or to the Lord Chancellor, he wrote the fol lowing note to Sir George Grey : — Rolls House, 7th March. " Sir, " I beg leave to acquaint you that the state of my health, and other reasons, induce me to wish to retire from my office of Master of the Rolls. Having had the honour to hold the office for fifteen years, which were completed in the month of January MEMOIR OF HENRY LORD LANGDALE. 351 last, I trust that her Majesty's Government will consider me to be entitled to the usual retiring pension, and in that confidence I beg the favour of you to present my humble duty to the Queen, and on my behalf to pray that her Majesty will be graciously pleased to accept my resignation at a convenient time. I have the honour, Sir, To remain your obedient humble servant, Langdale." The Ministerial crisis having passed, and the pro mise of the Mastership of the Rolls having been made to the Attorney-General, it was arranged that Lord Langdale should continue to hold office until the end of the then sittings. Partings and leave-takings are generally painful episodes in a man's life. But the farewell of a public officer is, perhaps, the least sorrowful of any. Those with whom he has been more closely connected, with a few exceptions, look to the in-comer rather than to the out-goer for advancement, — moistened eyes or dejected looks are not often exhibited at a parting address, especially of a Judge, on taking leave of his bar. Fifteen years of almost daily intercourse must, however, create a certain degree of attachment, espe cially when, in that intercourse, the graver and nobler feelings of humanity have been drawn out, and mingled up with those of the more gentle and amiable character. Between Lord Langdale and his bar there existed the warmest feelings of respect He, by his untiring pa tience, his efforts, and his urbanity, had succeeded in 352 MEMOIR OF HENRY LORD LANGDALE. winning their esteem, if not their affection; and they, by their learning, their integrity, their sagacity, and their prudence, were honoured by his entire confidence. On the 25th of March, after the disposal of busi ness in the paper for the day, Mr. Turner rose, and said, — " My Lord, — The business of the day being now concluded, and your Lordship about to retire from that position on the bench, which you have so long and so ably filled, I am desired by the Bar publicly to express to your Lordship their deep regret that the state of your Lordship's health has compelled your resignation ; and their earnest and anxious hope is, that many years may yet be spared to you, of happiness in the bosom of your family. My Lord, it would ill become me on suctr an occasion as the present, to enter into an examina tion of your Lordship's judicial career. Such a pro ceeding on my part might savour of flattery, and be offensive to your Lordship; or, on the other hand, might be cold, and insufficient, and unsatisfactory to the Bar. I therefore abstain from entering at any length into the subject, but there are matters connected with your Lordship's tenure of office, which I feel bound to notice on the present occasion. My Lord, the Bar, the profession, and the public, are deeply indebted to your Lordship, for the exertions that you have made during the period you have held office, to simplify the process and practice of the Court, and to re duce the delay and expense incident to proceedings in it — efforts which have led to beneficial results, and which, I think, will lead to consequences yet more MEMOIR OF HENRY LORD LANGDALE. 353 beneficial. My, Lord, the public owe to your Lordship a debt of the deepest gratitude for the untiring patience with which your Lordship has investigated the most complicated transactions which have probably fallen to any Judge to deal with. The Bar, my Lord, owe to your Lordship a debt, probably of scarcely less extent, for the order and regularity which have prevailed in this Court during the period you have presided in it, and which promoted the best feeling between the members of your Lordship's Bar, and been conducive to the administration of justice, and have eased the labours of the Bar, and I trust, have also eased your Lordship's labours. My Lord, in conclusion, I have to express to you the heartfelt feeling of the Bar, that you may continue in the enjoyment of health and happiness, discharged from those duties which we fear have pressed too heavily upon you." Great applause was manifested by a crowded court. His Lordship, who was much overcome with emotion, impressively replied : — " I confess that I am overpowered. I am deeply sen sible of the kindness of the expressions that you have used towards me, and I am truly grateful for thera. If I could flatter myself that I, in any adequate measure, deserved such approbation of the Bar, I should indeed be greatly satisfied ; I can claim no merit but the single one of having used my best endeavours to perform my duty, and nobody can be more conscious than I am of the short-comings of my endeavours adequately and fully to perform the duties of an office so difficult. I can attribute the kindness of your expressions only to vol. ii. a A 354 MEMOIR OF HENRY LORD LANGDALE. the indulgence that you have offered me, and your dis position to give a favourable construction to my conduct, but at a cooler moment there will be, no doubt, a stricter scrutiny, and the conduct of myself, and many other judges, will have to be tested by the reports and history which, while they show what has been done, or tried to be done, will at the same time prove how much, how deeply indebted we are to the learning and intelligence of the Bar that has practised before us. I wish to add, that honourable and upright professional men, in whatever grade they may be found, are, certainly, in my view, among the most useful ministers of justice. Little do those think who observe only the outside ap pearance, how little is, or can be done by the judge alone without that asistance which he receives from the Sagacity, the industry, the integrity, the learning of those to whose assistance he ever must be mainly in debted for the successful performance of the duties of his office. Gentlemen, I am unable to proceed further. I am aware that no one has enjoyed more assistance in that way, than I have done. I feel deeply grateful for it, and shall ever retain the strongest sentiments. Fare well ! " His Lordship was deeply affected during the delivery of his address, and a crowded court, with many a weeping eye, manifested the greatest sympathy with the retiring judge. On leaving the Court, Mr. Turner, Mr. Walpole, and Mr. Monro, begged for private audiences with him — to take their leave— after which he returned to Temple- ton, overpowered with emotion. MEMOIR OF HENRY LORD LANGDALE. 355 On the 28th of March, Lord Langdale left Roe hampton at the usual hour, and went direct to the Lord Chancellor's private room in Lincoln's Inn, and signed the surrender of his office of Master of the Rolls in the presence of the Lord Chancellor, Sir John Romilly, and many other public functionaries. The act of resignation performed, the train swept into Court,* and the retired Judge was left alone with his Secretary, Mr. Sanders, to whom he said, despondingly, " Well, you are the last with me — the rest are all gone ! " The following touching account of Lord Langdale's last moments and death was written by his daughter. I give it in her own words, believing that its affecting simplicity would be destroyed by any comment or addi tion of mine. " On his returning to Roehampton he seemed in better spirits; his official life was now over, and he might with a safe conscience grant himself repose — but repose had come too late — the oil of life was spent. His body, worn out by unceasing labours, failed, and on the very evening of his resignation appeared the first clear symptoms of his fatal malady. Aided by his early medical training, he had himself divined the truth, and but a few weeks before had asked his medical attendant, ' What is it you fear ? Is it paralysis ? ' There was no evading an answer with such a man, and an affirmative reply was returned. Yet as this dread was fear, not certainty, he concealed it with the greatest firmness ; and it was not until after * Sir John Romilly was sworn in, as Master of the Rolls, in Court, and not in the private room, as Lord Langdale had been. 356 MEMOIR OF HENRY LORD LANGDALE. his death that his family found in it the key to many dark hints he had thrown out in moments of deep dejection. Yet these symptoms passed off in a few minutes. For the next fortnight he appeared much the same, or, if anything, rather worse; his hands less serviceable, and more difficulty in reading or doing any thing which required him to fix his eyes. Lord Lang dale had been ordered by his doctors to go to Tunbridge Wells, as the air had done him so much apparent good the preceding autumn ; and, on the 10th of April, he accordingly went there. This day he appeared con siderably better, and continued so to seem throughout the evening. Fallacious appearance ! About two o'clock the next morning, he was seized by the fatal paralysis, which almost instantly rendered him speech less, and utterly disabled the right arm, side, and leg. His usual medical attendant, Mr. Newton, was sum moned from London by electric telegraph; and in con junction with Mr. Hargreaves, the surgeon ofthe place, cupped him, but this produced little effect. On the Sunday, his brother, Mr. Robert Bickersteth, arrived from Liverpool, and entirely approved the treat ment hitherto pursued. Till the morning of Wednesday, Lord Langdale seemed no worse, no weaker, and there fore in such a case better ; but from that moment the case was changed; in spite of stimulants constantly ad ministered he sank gradually, but surely, from hour to hour. Calm, sublimely patient, he retained his perfect consciousness, and, doubtless quite aware of the impossi bility of recovery, he awaited the hour of death with MEMOIR OF HENRY LORD LANGDALE. 357 entire resignation, and without betraying impatience by a single gesture throughout this trying week. On the morning of Friday, the 18th of April, the early rays ofthe sun streamed into the chamber of death. At eight o'clock, Lord Langdale was no more. He had passed with scarce a sigh to the world where there is no care. The following Thursday his remains were laid, according to his right as a Bencher, in the vault of the Temple Church, Here let no useless eulogium be passed on the dead. If in the tale of his life, simply told, his greatness of mind, and his high character have not amply appeared, no set form of description or praise could avail ; and if they have, any further account would be useless to adorn him to whom the best homage is truth." APPENDIX. Judgment in the Suit of the Duke of Brunswick v. the King of Hanover. Judgment in the Suit of Whicker v. Hume. Extract from the Judgment in the Suit of the Attorney General v. Caius College, Cambridge. APPENDIX. I have thought it advisable to give two of Lord Lang dale's judgments entire, as the best mode of enabling the reader to form a notion of his talents and powers as a judge, for in that capacity he will hereafter himself be judged by his fellow-men. That in the suit of the Duke of Brunswick against the King of Hanover, is profound and logical, and exhibits his extensive acquaintance with Civil and International Law. The case of Whicker versus Hume, shows how entangled and contradictory state ments may be made perfectly clear and reconcilable when unravelled and explained by the patient and accurate investigation of a legal and philosophic mind. Lord Langdale's Judgment in the suit of the Duke of Brunswick versus the King of Hanover, delivered 13th January, 1844. This case came on to be heard for argument on a demurrer to the Bill for want of jurisdiction, and for want of equity. The Bill is filed by his serene Highness Charles Frederick William Augustus Duke of Brunswick, against his Majesty the King of Hanover, who is sued as his Royal Highness Ernest Augustus Duke of Cumberland vol. n. b B 362 MEMOIR OF HENRY LORD LANGDALE. and Teviotdale in Great Britain, and Earl of Armagh in Ireland. The Bill prays that it may be declared that a certain instrument or writing in the Bill mentioned to be dated the 6th day of February and the 14th day of March 1833, and the appointment of his Royal Highness the Duke of Cambridge as guardian of the fortune and pro perty of the plaintiff thereby purported to be made, and of the persons purported to be appointed adminis trators and managers under him ; and the subsequent appointment of the defendant as such guardian, are absolutely void and of no effect ; and that it may be declared that the defendant is liable, and ought to account, to the plaintiff, for the personal estate, pro perty, and effects, and the rents, profits, and produce of the sale of the real estate of the plaintiff, possessed by the defendant, or any person by his order or for his use, or any person having acted or purported to act under any appointment, as administrator or manager under the defendant, since his appointment as guardian by virtue of the instrument of the 6th of February and 14th March, 1833, including therein the personal estate and effects, rents, profits, and produce of the real estate, paid or accounted for to the defendant by the Duke of Cambridge. And that such accounts may be accordingly taken, the plaintiff offering, on the taking of such accounts, to make the defendant all just allowances. For this purpose the Bill states, That in the year 1830, the plaintiff was the reigning Duke of the Duchy of Brunswick, and was in his private character or capa city possessed of or entitled to real and personal property APPENDIX. 363 in Brunswick and in England, Hanover, France, and else where in Europe, to a very considerable value ; That the Duchy of Brunswick borders on the kingdom of Hanover, and that in the month of September, 1830, his late Majesty King William the Fourth was king of Hanover, and his Royal Highness Adolphus Frederick Duke of Cambridge was Viceroy of Hanover, acting under the authority of his late Majesty King William the Fourth ; That pending a revolutionary movement in Brunswick, a Decree of the Germanic Diet of Confedera tion was made on the 2nd of December, 1830, whereby the plaintiff's brother, William Duke of Brunswick, was invited to take on himself provisionally the government of the Duchy, and the Diet left it to the legitimate dynasty of the plaintiff to provide for the future govern ment of the Duchy; And that in February, 1831, his late Majesty King William the Fourth, and William Duke of Brunswick, claiming to be legitimate agnati of the plaintiff, caused to be published a declaration, whereby they purported to dethrone the plaintiff from the throne of the Duchy, and declared that the throne had passed to Duke William ; And that after this declaration was made, it was signed by their Royal Highnesses, the Duke of Cumberland (the present defendant), the Duke of Cambridge, and the Duke of Sussex, and that in pursuance of the declaration, William Duke of Brunswick took upon himself the government of the Duchy, and he has ever since exercised the rights, powers, and authori ties of Sovereign Duke of Brunswick. The Bill then proceeds to state, that early in the year 1833, an instrument in writing, dated the 6th of Febru- B B 2 364 MEMOIR OF HENRY LORD LANGDALE. ary and the 14th of March in that year, signed by his late Majesty King William the Fourth, and by William Duke of Brunswick, was promulgated by them, and was to the effect following, viz. :— " We, William the Fourth by the grace of God King of the United Kingdom of Great Britain and Ireland, and of Hanover, Duke of Brunswick and of Lunenburgh ; and we, William, by the grace of God Duke of Brunswick and of Lunenburgh, make known what follows : Moved by the interest of our house, whose wellbeing is confided to us, and yielding to a painful but inevitable necessity, have thought it necessary to consider what measures the interest (rightly understood) of his Highness Charles Duke of Brunswick — the preservation of the fortune now in his hands, the dangers and illegality of the enterprizes pursued by the said Duke, and, lastly, the honour and dignity of our house — may require ; and after having heard the advice of a commission, charged by us with the examination into this affair, and after having weighed and exactly balanced all points of fact and law ; And whereas, after the dissolution of the German Empire, the powers of supreme guardianship over the princes of the empire, which up to that period had appertained to the Emperor, devolved on the heads of Sovereign States : — We, taking into consideration the laws and customs, and by virtue of the rights unto us belonging, in quality of heads of the two branches of our house, have decreed as follows : — Art. I. Certain facts, either notorious or sufficiently proved, have caused us to arrive at the conviction that his Highness Duke Charles is at this time wasting the fortune which he possesses in enterprizes alike impos- APPENDIX. 365 sible and dangerous, both to himself and other persons, and is seeking to damage the just claims which certain persons now or hereafter may legally have upon his property ; we have consequently considered that the only method of preserving the fortune of his Highness Duke Charles from total ruin, is to appoint a guardian over him. Art. II. In consequence of this conviction, we decree, that Charles Duke of Brunswick shall be deprived of the jaanagement and administration of his fortune. A guard ian shall be appointed, whom we shall choose by mutual consent from amongst the very noble or noble male scions of our house, although the right of choice belongs to the legitimate Sovereign of the Duchy of Brunswick, in virtue of his title alone. Art. III. His Royal Highness the Duke of Cambridge, Viceroy of Hanover, having declared that he will wil lingly accept such guardianship, we confide the same to his Royal Highness by the present decree, which he will be pleased to consider as constituting his title to such guardianship. Art. IV. As his Royal Highness the Duke of Cam bridge cannot, by reason of his position, by himself alone, exercise the functions of guardian, he is authorized to limit himself to the functions of supreme guardian, and to substitute for the management and administration of the property, one or more persons who under oath will proceed in their own name, and on their own personal responsibility, to make an inventory of the same, and to take measures for the preservation and administration of the fortune placed under the guardianship of his Royal 366 MEMOIR OF HENRY LORD LANGDALE. Highness the Supreme Guardian, who is to be at liberty to grant them fees proportionate to their duties. Art. V. The administrators shall render an annual ac count of their management to his Royal Highness the Su preme Guardian, who shall be asked to transmit the same to us, that we may cause the same to be settled and ap proved. Our confirmation shall be applied for in all cases wherein the laws require the consent of the Supreme Guardian. Art. VI. The guardianship is to be considered as legally established in Brunswick, where it is to have its locality. Art. VII. The present decree shall be published in the Bulletin of the Laws of the Kingdom, in accordance with the usual forms, and all whom the same may concern are bound to render obedience thereto. Given at our Palace of St. James's, 6 th of February, 1833, and at Brunswick, 14th of March, 1833. We have signed with our proper hand, and have placed our Seal. William (L. S.) ; William Duke (L. S.) ; The Baron Ompteda Schleinitz." To this instrument was subjoined a note, which was signed by the defendant, then Duke of Cumberland, and by the Dukes of Sussex and Cambridge, to the effect following : " We, the undersigned, have acknowledged with grati tude the foregoing arrangement adopted by his Majesty, in accordance with his Highness the reigning Duke of Brunswick, in the interests well advised, of his Highness the Duke Charles of Brunswick, for the preservation of the fortune remaining in his hands, for the maintenance of the public peace in the Duchy of Brunswick and in the Kingdom of Hanover, and for the honour and dignity of APPENDIX. 367 the great House of Brunswick Lunenburgh, — another proof of the foresight of his Majesty and of his Highnes$ for the wellbeing of that house. We solemnly attest the declaration by these presents signed with our hands, and to which we have placed our seals. — London, 6 th of February, 1833, Ernest (L. S.) ; Kensington, 3rd of February, 1833, Augustus Frederick (L. S.) ; Hanover, 13th of February, 1833, Adolphe (L. S.)." The Bill then states, That the plaintiff is advised as the fact is that the said instrument is absolutely void and of no effect, but that nevertheless the Duke of Cam bridge accepted the appointment of Supreme Guardian of the plaintiff's fortune and property, took possession of the real estates to which he was entitled in his private capacity at Brunswick, and took possession of all such parts of the plaintiff's property in Brunswick and else where of a personal nature, as he could discover, to the amount of several hundred thousand pounds in the whole ; that he sold and converted several parts thereof into money, and made certain payments on account of the plaintiff and of his property, but that, after allowing for such payments, there remained in his hands a very large surplus unaccounted for ; That King William the Fourth died on the 28th of June, 1837, and thereupon the present defendant became King of Hanover, and the Duke of Cambridge having resigned his appointment of Guardian by some instrument in writing, to which the defendant was a party, and which was signed by him and by William Duke of Brunswick, the defendant was pur ported to be appointed Guardian of the plaintiff, and of his fortune and property, in the place of the Duke of 368 MEMOIR OF HENRY LORD LANGDALE. Cambridge, under the instrument of the 6th of February and 14th of March, 1833, and with all the same powers and authorities as was thereby purported to be conferred on the Duke of Cambridge ; That the Duke of Cambridge accounted for his receipts and payments to the defendant, and payed him the balance, and that the defendant took possession of the plaintiff's property, and he received large sums of money on account thereof, and has there out made some payments on account of the plaintiff, but that a very large balance or surplus, to the amount of several hundred thousand pounds, remain due from the defendant to the plaintiff on account thereof ; And that the defendant refuses to comply with the plaintiffs application for an account thereof. The Bill charges that the Instrument of the 6th of February and 14th of March, 1833, and the appoint ment of the Duke of Cambridge as Guardian, and the appointment of the defendant as guardian, are wholly invalid, according to the laws, as well of Brunswick, and of Hanover, as of Great Britain, but that under colour thereof, the Duke of Cambridge and the de fendant respectively, took possession of the plaintiff's property on his behalf, and not adversely. — That by the law of England, such appointments of guardian and all the rights thereby purported to be given, are void, even if the same were valid by the law of Bruns wick. And if the same were valid at the time when the same issued, having regard to the circumstances and situation of the plaintiff at the time (which, how ever, the plaintiff denies), there is now nothing in the circumstances, or conduct, or state of mind, of the APPENDIX. 369 plaintiff, to debar him from the full right and power of enjoyment, and disposition of his property. There is a charge, that the receipts and payments by the Duke of Cambridge, and the defendant respectively, on account of the plaintiff and the management of his property, constitute a mutual account containing many items, as well on the debit as on the credit side thereof, and that such account is still open and running, and is of an intricate and complex nature, and can only be taken in a Court of Equity. There are also charges relating to the administrators and managers, who were appointed by the Duke of Cambridge, and are alleged to have accounted to the defendant — and a very long statement of certain pro ceedings in France, in which it is alleged that the Duke of Cambridge attached, but failed in an attempt to establish, a claim to the plaintiff's property in that country — a specification of certain property alleged to have been seized by the Duke of Cambridge and the defendant respectively ; and the statement of a trans action alleged to have taken place at Osterode in Novem ber or December 1830. The plaintiff having in an earlier part of the Bill, stated, — That from a time previous to the Duke of Cambridge resigning the appointment of guardian, until within a few weeks past, the defendant had been residing in Hanover, out of the jurisdiction of this Court ; and having charged, that he the plaintiff was resident and domiciled in England, and that the plaintiff and defen dant, were respectively subjects of the Crown of Great Britain and Ireland, concludes the charging part of his 370 MEMOIR OF HENRY LORD LANGDALE. Bill by charging, that the defendant is a Peer of this Realm, and that his title as such, is his Royal Highness Ernest Augustus, Duke of Cumberland and Teviotdale in Great Britain, and Earl of Armagh in Ireland. And that since his arrival in this country, and during his residence here, he had exercised, and then exercised, his rights and privileges as such Peer as aforesaid. It has been stated to me as a fact on both sides, — That the plaintiff availed himself of a temporary resi dence of the defendant in this country, to serve him here with the process of this Court, and that the de fendant, before he appeared to the Bill, and consequently before the demurrer was filed, applied to the Lord Chancellor, to be relieved from the process ; that the Lord Chancellor refused the application, and that there upon the defendant appeared to the Bill in the usual manner ; and upon this state of things, the plaintiff has founded an argument, which if valid, would make it unnecessary for me to consider the principal question upon the demurrer. The plaintiff has contended — 1st. That the appearance of the defendant to the process ought to be deemed a waiver of any claim to personal exemption, from liability to be sued ; and — 2nd. That the refusal of the Lord Chancellor to relieve the defen dant from the process, ought to be considered by me as a decision of the Lord Chancellor, that the defendant is subject to the jurisdiction of this Court, with refer ence to the subject-matter of this Bill. As to the first of these points, it would be singular, if appearance, which is the first step towards making a defence, should be deemed an abandonment or waiver of any defence APPENDIX. 371 which the defendant may have. An appearance may be a waiver of any mere irregularity in the service of process, but I am of opinion that it is no waiver of such a defence as is now made, and which the defendant has clearly a right to submit to the consideration of the Court. He claims to be exempt from liability to be sued, but he never theless appears, in order that he may in a regular manner inform the Court, of the reasons upon which his claim is founded. As to the other point, it appeared to me very improbable, that the Lord Chancellor in refusing to stay the process upon a Bill, the contents of which were not regularly known to him, could have meant to decide that the defendant was, with reference to the contents of the Bill, liable to the jurisdiction of the Court. Upon this part of the case, I have, however, thought it right to communicate with the Lord Chan cellor, who has informed me, that in declining to inter fere with the process, he did nothing which could in any way prevent the defendant from making any defence which was open to him in the usual course of proceed ing ; and gave no opinion upon the question of juris diction in the particular case. It is therefore incumbent on me to consider the defence made to this Bill, by the present demurrer. In support of the demurrer for want of jurisdiction, the following are amongst the principal propositions advanced on behalf of the defendant. 1. He is admitted by the bill to be King of Hanover, a Sovereign Prince, recognized as such by the crown of England ; as a Sovereign Prince his person is inviolable, and he is not liable to be sued in any court. 372 MEMOIR OF HENRY LORD LANGDALE. 2. The inviolability of a Sovereign Prince is not con fined to his own dominions, but attends him every where. Though a King be in a foreign kingdom, yet he is judged in law a King there. (7 Coke 15).* 3. His inviolability is not affected by his being tem porarily resident in a foreign kingdom, of which he is a subject. The defendant is not the less a Sovereign Prince, and not the less exempt from being sued in any Court here, because he is a subject of the Queen, and a Peer of the Realm. 4. Even if the defendant should be held liable to be sued for some things in this country, he ought not to be held liable to be sued, in respect of the particular subject-matter of this suit, which is alleged to be matter of State, and not matter of forensic jurisdiction. 5. And finally, even if the defendant should be held to be liable to be sued here, and if the subject-matter of the suit should be held to be matter of forensic jurisdiction, yet that it is not matter subject to the jurisdiction of this Court; but is matter which must be deemed to be subject to the jurisdiction of some Court of special and peculiar jurisdiction, such as in this country, are matters arising in lunacy, bankruptcy, and various other matters which, although proper subjects of forensic jurisdiction, can only be adjudicated upon in Courts specially appointed for the purpose. On the other hand, the following are amongst the principal propositions advanced in support of the Bill on behalf of the plaintiff. * " Jurisconsulti melioris notse, negant Principem extra ditio- nem suam mere privatum esse," &c. — Zouch, p. 63. APPENDIX. 373 1. This ought to be considered as an ordinary suit between subject and subject. The plaintiff and the defendant are lineal descendants of the Princess Sophia, Electress and Duchess Dowager of Hanover, and as such, (4 Anne, c. 4), are to all intents and purposes, to be deemed natural born subjects of this Realm. The plaintiff is domiciled here, — the defendant was born here, — is an English Peer, and has taken the oath of allegiance. (1 Geo. I. st. 2. c. 13.) 2. No English subject can withdraw from his alle giance and subjection to the laws of the land. His becoming a Sovereign, a Sovereign Prince of another country can make no difference in this respect. He remains an English subject, and is bound to obey the laws of England.* 3. The law of England affords no authority for the proposition that Sovereign Princes resident here may not be sued in the Courts here, and there are dicta to the contrary, as in Calvin's case (7 Coke, 15), it is said that, " If a King of a foreign nation come into England by the leave of the King of this Realm, as it ought to be ; in this case he shall sue and be sued in the name of King," and it is reported in the case of De la Torre v. Bernales, (1 Hov. Supp. Ves. 149), that Sir John Leach stated it to be his opinion, that foreign Sovereigns could both sue and be sued in this country. In support of this proposition, reference was made to proceedings! in which John Baliol, King of Scotland, was summoned * Foster L. 60. 184 ; BI. i. 370 ; Moor. 798. f Ryley, PI. part 1. 154, et seq.; Brady, iii. 18, et seq.; Tyrrell, iiu 62, et seq. ; Carte, ii. 226. 231, 232; Tytler, i. c. 2. 374 MEMOIR OF HENRY LORD LANGDALE. to answer charges made against him in the Court of Edward I. King of England, and to proceedings in which Edward I., King of England, was summoned to answer charges made against him in the Court of Philip Le Bel, King of France, at Paris. But these cases have nothing to do with the question. They were respectively adopted in virtue of, and for the purpose of enforcing the feudal superiority which Edward I. claimed to have over the Kingdom of Scotland, and the superiority which the King of France had over the province of Guienne. 4. Liability to suit does not necessarily involve liabi lity to coercion. The defendant, as an English Peer, is by privilege protected from personal coercion ; and even if a sovereign Prince without such peculiar privilege, were a defendant here, this Court has power so to modify its process as at the same time to do justice to the plain tiff and have due regard to the person and dignity of the defendant. 5. The Law of Nations — the general law — and the common interest of all mankind, is, that justice should be done all over the world. The right of a suitor here is not to be impeded by the assertion of an unrecognized privilege in any person against whom he has a legal demand. 6. The Queen of England is liable to be sued in a proper form — a form not applicable to a foreign sove reign ; but if a foreign sovereign were not liable to be sued here, he would be placed in a better situation than our own Sovereign, which it is said would be absurd. These propositions are all of them more or less impor tant to be considered on the present occasion, and I have thought it convenient to enumerate them, although APPENDIX. 375 I shall not have occasion to observe upon them all, in stating the grounds of the opinion which I have formed upon this demurrer. The General proposition of the defendant is, that by reason of his character of a Sovereign Prince, he is exempt from the jurisdiction of any tribunal or court in this country. His limited, or modified proposition, adapted to the specialities of the present case, is, that he is exempt from the jurisdiction of any tribunal in this country in respect of acts done in a foreign country, under foreign authority, and in no way connected with his own charac ter of English Peer and English subject. It has been fully established (K. of Spain v. Machado 4 Russ. 560, Hullett & Co. v. K. of Spain 2 Bligh N.S. 31. 1 Dow. & CI. 169 ; and see R. d'Espagne v. Pountes, Rolls Abr. tit. Admiralty, E. 3 ; Rolls Report, 133 ; Blustr. 322; Hob. 78— 113; Moore, 850; Barclay v. Russell, 3 Ves. 432; Dolder v. Lord Huntingfield, 11 Ves. 283) that a foreign Sovereign may sue in this country both at law and in equity ; and further, that if he sues in a Court of Equity, he submits himself to the jurisdiction of the Court : a Cross Bill may be filed against him, and he must put in his answer thereto, not by any officer, agent, or substitute, but personally upon his own oath (King of Spain v. Hullett 1 Clark & Fin. 333 ; 7 Bligh, N.S. 359). Lord Redesdale (2 BI. N.S. 60) considered, that to refuse a foreign Sovereign the right of sueing in our Courts, might be a just cause of war ; and the liability of a foreign Sovereign to be sued in a case where he himself 376 MEMOIR OF HENRY LORD LANGDALE. was suing here, was considered to be founded upon the principle that by sueing here he had submitted himself to the jurisdiction of the Court in which he sued. The decision is in accordance with the rules of the Civil Law. The Reconventio is a species of defence, and " Qui non cogitur in aliquo loco judicium pati, si ipse ibi agat, cogitur excipere actiones, et ad eundem judicem mitti." (Digest, v. i. 1. 22. Corp. Jur. Civ. p. 131.) In the case of Glyn v. Soares (1 Young. & Coll. 644) it was supposed that a person who was not a party to an action, but whose agent was on his behalf the plaintiff, might be made a defendant to a bill in Equity for disco very in aid of the defence to the action ; and on tbat supposition it was held that the Queen of Portugal was properly made a defendant to the bill. Her demurrer, however, was allowed in the House of Lords (7 Clark & Fin. 466), where it was held that such a Bill of Discovery could only be sustained against parties to the action. If she had been plaintiff in the action I presume that she would have been held to be a proper defendant to the bill. The case mentioned by Selden in his Table Talk (Law 3), was probably of the same sort. There were many suits pending between the King of Spain and Eng lish merchants. A merchant had recovered costs against him in a suit, and could not get them ; and process of outlawry was taken out against him for not appearing ; but the circumstances are not stated with such particu larity as to make it practicable to draw any conclusion from them. The cases which we have upon this point go no further than this, that where a foreign Sovereign files a bill or APPENDIX. 377 prosecutes an action in this country, he may be made a defendant to a cross-bill or bill of discovery in the nature of a defence to the proceeding which the foreign Sovereign has himself adopted. There is no case to show that because he may be plaintiff in the Courts of this country for one matter, he may therefore be made a defendant in the Courts of this country for another and quite a distinct matter ; and the question to be now determined is independent of the fact stated at the bar that the King of Hanover is, or was, himself plain tiff in a suit for an entirely distinct matter in this Court. There have been cases in which this Court, being called upon to distribute a fund in which some foreign Sove reign or state may have had an interest, it has been thought expedient and proper, in order to a due distri bution of the fund, to make such Sovereign or state a party. The effect has been, to make the suit perfect as to parties, but, as to the Sovereign or state, made a defendant in cases of that kind, the effect has not been to compel, or attempt to compel such Sovereign or state to come in and submit to judgment in the ordinary course, but to give the Sovereign an opportunity to come in to claim his right or establish his interest in the sub ject-matter of the suit. Coming in to make his claim, he would by doing so submit himself to the jurisdiction of the Court in that matter ; refusing to come in, he might perhaps be precluded from establishing any claim to the same interest in another form. So where a defendant in this country is called upon to account for some' matter in respect of which he has acted VOL. 11. c c 378 MEMOIR OF HENRY LORD LANGDALE. as agent for a foreign Sovereign, the suit would not be perfect as to parties, unless the foreign Sovereign were formally a defendant ; and by making him a party, an opportunity is afforded him of defending himself, instead of leaving the defence to his agent, and he may come in if he pleases. In such a case, if he refuses to come in, he may perhaps be held bound by the decision against his agent. There may be other cases in which Sovereign Princes, for the sake of having a claim or right determined, may have been afforded an opportunity of appearing, and may have voluntarily appeared as defendants before the tribu nals of this country ; but, save in the case of a cross bill, or bill of discovery, in aid of a defence, and in the case of a Sovereign Prince voluntarily coming in to make or resist a claim, it does not appear how he can be effec tually cited, or what control the Court can have over him or his rights ; and no case has been produced in which it has been determined that a foreign Sovereign, not himself a plaintiff or claimant, and insisting upon his alleged right to be exempt from the jurisdiction of the ordinary Courts, has been held bound to submit to it. On the other hand, no case has been produced in which, upon the question properly raised, it has been held that a Sovereign Prince resident within the domi nions of another Prince, is exempt from the jurisdiction of the country in which he is. In the case of Glyn v. Soares, the question was not mooted at the bar; but Lord Abinger took it into consideration, and (1 Y. & Coll. 698) distinctly expressed his opinion that, as a APPENDIX. 379 general proposition, a Soveign Prince could not be made amenable to any court of judicature in this country ; and upon this occasion the defendant insists upon it as a general rule, that, in times of peace at least, a Sove reign Prince is, by the law of nations, inviolable ; that obvious inconveniences and the greatest danger of war would arise from any attempt to compel obedience to any process or order of any Court, by any proceeding against either the person or the property of a Sovereign Prince ; and indeed that any such attempt would be deemed a hostile aggression, not only against the Sovereign Prince himself, but also against the state, and people, of which he is the Sovereign ; that it is the policy of the law (to be everywhere taken notice of) that such risks ought to be avoided : and that this view of the sub ject ought of itself to induce the Court to allow this demurrer. If a foreign Sovereign could be made personally ame nable to the Courts of a country in which he happened to reside, he must be subject to the ordinary process of the Court, and if not protected by any privilege legally established by the law of England, he would in this country be subject to the execution of writs of attach ment, and ne exeat regno, and other processes upon which he might be arrested. And upon this the counsel of the defendant cited the opinion of Vattel, who considered it to be a ridiculous notion, and an absurdity, to think that a Sovereign who enters a foreign country, even without permission, might be arrested there (Vattel, iv. 7 §., 108, p. 486). It was attempted to meet the force of this argument c c 2 380 MEMOIR OF HENRY LORD LANGDALE. by alleging, that this Court had authority to modify the means of executing its process, and compelling obedience to its orders, so as to suit the rank or dignity of parti cular defendants ; but this allegation was not supported by any authority, or by reference to any known law, or practice of the Court. In the case of the King of Spain it was stated (7 Bligh, N.S. 392) that his right "in respect of privilege was not greater than that of any of his subjects ;" and the Lord Chancellor said, " The King of Spain sues here by his title of Sovereign, and so he must be sued, if at all ; but beyond the mere name of Sovereign it has no effect. He brings with him no privi leges which exempt him from the common fare of other suitors." I am of opinion that the only exemptions from the ordinary effects of the process of this Court are privi leges which have a recognized legal origin ; and that no other can be allowed. To show that a Sovereign Prince carries his prero gatives with him into the dominion of other Princes, reference was made to the case of Ingelram de Nogent stated in Flecta (Lib. ii. c. 3, § 9, page 68, and cited in Calvin's Case, 7 Co. 15 b, and also in Moore, 798). This man was an attendant upon Edward I. King of England when in France. He committed a theft there, and was apprehended for it by the French; but the King of England required to have him redelivered, being his subject, and of his train, and after discussion in the Parliament of Paris, he was sent to the King of England to do his own justice upon him. Whereupon he was tried before the Steward and Marshall of the King of England's House, and executed in France. At APPENDIX. 381 a more recent period Monaldeschi, an attendant upon Christina, the abdicated Queen of Sweden, was by her orders put to death within her residence in France (Le Bel. Relation de la Mort du Marq. de Monaldeschi, &c, Arch. Cur. 2e. Sere. viii. 287), a fact in itself atrocious, but which was not seriously resented by France, and is said to have been afterwards defended by great authority. * Bynkershock speaks of it thus, " Quod factum Galli, quamvis indignabundi, impune trans- miserunt, ex impotentia muliebri, dicet alter, alter vero, ex jure gentium, ut optimum maximumque est." — Bynk. Op. ii. 151. But I own that with reference to the present case, I do not attach much importance to instances of this sort. The doctrine or fiction which has been expounded by some writers on the law of nations, under the name of extra-territoriality (Martens 46, Wheatley, i. 273), if it were carried out to its legitimate consequences would, as it appears to me, render it highly dangerous for the Sovereign of any country to admit within his dominions any foreign Sovereign or even any Ambassador of a foreign Sovereign. It is admitted that the extent to which the doctrine should be carried out, must be sub ject to great modifications, and I do not think that it affords any assistance in the practical consideration of the question, what are the exemptions or privileges which ought by the law of nations to be allowed to a foreign Sovereign temporarily resident within the dominions of another Prince. Another argument for the defendant was, that a Sove- * Leibnitz, Bibliograph. D'Alembert Memoires de Christine. 382 MEMOIR OF HENRY LORD LANGDALE. reign coming from his own dominions into this country attending the Court of the Queen, and sitting in Parlia ment, must be deemed to have come with the consent of the Queen, and to have been intitled to a safe conduct which would have contained a prohibition to sue him in any Court * that, therefore, the defendant ought to be deemed to have come and resided here on the faith of such right, which he is not the less intitled to, because the letters of safe-conduct were not actually applied for and issued. This argument assumes that letters of safe- conduct, such as might and lawfully ought to be issued at this time, and on the occasion of such a visit as that made to this country by the King of Hanover, would have contained a prohibition to prosecute such a suit as this. But the argument for the defendant, which appears to me to be the most important, was founded upon analogy to the immunities of Ambassadors, recognized and declared to be in accordance with the law of England, by the stat. 7 Anne, c. 12. By that statute it was declared, That all writs and processes sued forth and prosecuted, whereby the person of any Ambassador of any foreign Prince, authorized and received as such by her Majesty, may be arrested or imprisoned, or his goods distrained, seized, or attached, shall be deemed to be utterly null and void : and after a penal clause affecting any person who may sue out any such * " As no King, &c. can come into this realm without a licence or safe conduct, so no pro-rex, &c. whicli represented a king's person can do it." — Co. Inst. iv. 155. t Reg. Brev. 26. APPENDIX. 383 writ or process, there is a proviso that no merchant or trader within the description of the Statute against Bankrupts, who puts himself into the service of any Ambassador, shall have or take any benefit by the Act. It is argued that the law of nations and the law of the land having granted such immunities to Am bassadors, the mere envoys and agents of Sovereign Princes cannot have refused at least equal immunities to the Sovereigns themselves, on whose account the immu nities to Ambassadors were given. If it be right, as it is universally admitted to be, that Ambassadors should have such immunities, it must, d fortiori, be right that Princes should have them ; and thus it is argued that because Ambassadors are held to be inviolable in the countries where they reside, Princes ought also to be so. But on the part of the plaintiff this is denied — and it is said that we must look at the reason of the law. An Ambassador who comes into a foreign state on the business of his Sovereign, which cannot be transacted without entire freedom and independence on his part, must be allowed privileges which are in no way required for the protection or accommodation of a Prince who comes on a visit of pleasure or compliment ; and, more over, that the immunity of an Ambassador does not extend to every suit of every kind. There are excep tions, depending on the peculiar liabilities or obligations of the person, or on the nature of the transaction, and it cannot be inferred that because an Ambassador is in some or in many cases exempt from suit, that there- 384 MEMOIR OF HENRY LORD LANGDALE. fore a Sovereign Prince is exempt from suit in all cases. The question upon the demurrer is to be determined by that which may be thought to be the law of nations applicable to the case. There is no English law appli cable to the present subject, unless it can be derived from the law of nations, which when ascertained is to be deemed part of the Common Law of England. The law of nations includes all regulations which have been adopted by the common consent of nations in cases where such common consent is evidenced by usage or custom. In cases where no usage or custom can be found, we are compelled, amidst doubts and difficulties of every kind, to decide in particular cases according to such light as may be afforded to us by natural reason or the dictates of that which is thought to be the policy of the law. " Lege deficiente, recurritur ad consuetudinem, et de- ficiente consuetudine, recurritur ad rationem naturalem :" — and in the case now in question, it does not appear that there have been cases, or that events have occurred, from which any usage or custom of nations can be collected. Bynkershock, in his treatise De Foro Legatorum, cap. 3 (Op. ii. 150), discusses the very question which is now under consideration. He supposes a Sovereign Prince to pass into the dominions of another Prince for any cause whatever of business or pleasure. It is not, he says, to be supposed that the Prince went there with the intent to put off his own sovereignty, and become the APPENDIX. 385 subject of another ; yet what is to be done if he commits violence or contracts debts in the country where he is % This, he says, will depend on the law of nations adopted from reason and mutual consent, and established by usage. If we consult reason, much is to be said on either side. If a Prince, in the dominions of another, becomes a robber, homicide, or conspirator, is he to escape with impunity \ If he extorts money, or becomes indebted, is he to be permitted to carry home his plunder % It is, he says, difficult to admit that ; and yet, on the other hand, is that which reason and the consent of all nations have granted to Ambassadors, because they repre sent a Prince and obey his orders, to be refused to the Prince himself, perhaps transacting his own affairs \ Is the sanctity of the Prince less than that of his Ambas sador? Shall we compel the Prince himself to answer when his envoy is free'? The learned writer, after in vain searching for precedents, proceeds thus : — " Nihil — in hoc argumento proficies, rebus similiter a gentibus judicatis, atque ita sola superest ratio, quam consulamus. Et hac consulta, ego non ausim plus juris tribuere in Principem non subditum, quam in legatum non subdi- tum. . . . Quare ut extremum est in legato, ut jubeatur imperio excedere, sic et in Principe statuerem si jus hos- pitii violet. ... In caus& seris alieni idem dixerim, nam arresto detinere Principem ut ass alienum expungat, quamvis forte stricti juris ratio permitteret, non per- mitteret tamen analogia ejus juris quod de legatis ubique gentium receptum est. Si neges, ubi de jure gentium agitur, ex analogia disputari posse, ego negaverim, hanc qusestionem ex jure gentium expediri posse, cum exempla 386 MEMOIR OF HENRY LORD LANGDALE. deficiant, quibus consensus gentium probetur, nee quic- quam adeo supersit quam ut ad legatorum exemplum, ipsos Reges et Principes et quidem magis, ab arresto dicamus immunes et in eo a casteris privatis differre." In a case where there is no precedent — no positive law — no evidence of the common consent of nations — no usage which can be relied on — where reasons important and plausible are arrayed in opposition to each other — and where no clear and decided preponderance is to be found, it seems reasonable to endeavour to borrow for our guidance such light, however feeble and uncertain, as may be afforded by analogous cases, from whence have been derived rules adopted with great, though not per fect uniformity, by all nations. It is true that a decision, derived from principles sup ported by analogous cases alone, cannot be entirely satis factory, and yet it may be the best, the most satisfactory which the nature of the case admits of. It will be more satisfactory in proportion to the clear ness of the analogy between the cases under considera tion. It must be admitted that all the reasons assigned for the immunity of Ambassadors are not applicable to the case of Sovereign Princes, and it has been truly observed that an Ambassador, if exempt from the coercive power of the law in the country where he is, may, nevertheless, be compelled to submit to justice by his Prince in his own country ;* but that if you exonerate the Prince him self, Justice fails altogether: but in ultimate effect, the cases come very nearly to the same result. The * Ward, ii. 515. 596, 8. APPENDIX. 387 Prince, not being subject to a foreign power, may refuse to compel his Ambassador to do justice, or may refuse to do the justice declared by a foreign tribunal, when re quested by a foreign power : and the refusal in either case becomes a ground of imputation against the Prince who refuses, and may give rise to those irritations which are so apt to prove incentives to war. Investigate the subject as we may, considerations of this sort press upon us. Whilst a prevailing respect for humanity and justice resides in the breasts of Princes, and when there is con sent as to the means of ascertaining and promoting the ends of justice in particular cases, it is well : but in the last result of any inquiry on the subject, we find that in the absence of moral sanctions, and of treaty, war and reprisal (id est, war again in a particular form), are the sanctions of that which is called the law of nations. If we hold Sovereign Princes to be amenable to the Courts of this country, the orders and decrees which may be made cannot be executed by the ordinary means. Where is the power which can force obedience % If acci dental circumstances should give the power, and if, for the supposed purposes of Justice, an attempt were made to compel the obedience of a Sovereign Prince to any process, order, or judgment, he and the nation of which he is the head, and probably all other Princes and the nations of which they are the heads, would see in the attempt nothing but hostile aggression upon the inviola bility which all claim as the requisite of their sovereign and national independence. On the other hand, if the juris diction of the Courts against Sovereign Princes be ex cluded we are on the institution of a claim, very nearly, 388 MEMOIR OF HENRY LORD LANGDALE. though not quite, in the state to which we are brought by the process, order, or judgment, on the former sup position. The state may have to seek redress for the injured subject : and justice is to be requested from a Prince or Chief, against whom you have no ordinary means of enforcing it. It may be refused ; acquiescence in the refusal is the abandonment of justice — and pres sure after refusal implies an imputation, and gives rise to discussions and irritations which may again prove incentives to war. Justice can be peacefully and effec tually administered there, — only where there is recog nized authority and adequate power. What is to be done in cases where there is no power to enforce it % It must be admitted that the subject is replete with difficulties. These difficulties and the importance of maintaining the legal inviolability of Sovereign Princes, can scarcely be shown more strongly than by adverting to the opinions which have been expressed by eminent Jurists, that offences committed by Sovereign Princes in foreign states, ought rather to be treated as causes of war than as violations of the law of the country where they are committed ; and ought rather to be checked by ven geance, and making war on the offender, than by any attempt to obtain justice through lawful means. Zouch (Solutio Questionis, etc., cap. IV., p. 66,) says, " Ad id quod asseritur, male cum principibus actum iri, si in eorum territoriis, aliis Principibus in eorum per- hitiem, conjurandi licentia sit permittenda ; respondetur quod talis licentia neutiquam est permittenda. Sed eos bello prosequi juri gentium consentaneum est. Et si cum in territorio Principis in quem conjurarent depre- APPENDIX. 389 hensi sunt, prcesenti vindictd uti, melius videbitur ; juri gentium convenit diffidere et pro hostibus 'declarare, unde non expectato judicio cuivis eos interficere impune liceat:" and Bynkershock (Op. ii. 151) says, "Quid si enim, more latronis in vitam, in bona, in pudicitiam cujusque irruat, nee secus atque hostis capta grassetur in urbe. Poterit utique detineri, forte et occludi, quam- vis per turbam malim quam constituto judicio." When great and eminent lawyers, men of experience and reflection, so express themselves as to show their opinion, that less mischief Would ensue from the un restrained and irregular vengeance of individuals, and of the multitude, than from attempts to bring Sovereign Princes to judgment in the ordinary Courts of a foreign country where they have offended ; however much we may lament that such should be the condition of the world, we may be sure of the sense which they enter tained of the difficulty of making, and of the danger of attempting to make, Sovereign Princes amenable to the Courts of Justice of the country in which they happen to be. After giving to the subject the best consideration in my power, it appearing to me, that all the reasons upon which the immunities of Ambassadors are founded, do not apply to the case of Sovereigns; but that there are reasons for the immunities of Sovereign Princes, at least as strong if not much stronger than any which have been advanced for the immunities of Ambassadors ; — that suits against Sovereign Princes of foreign countries must in all ordinary cases in which orders or declarations of right may be made, and in requests for justice, which 390 MEMOIR OF HENRY LORD LANGDALE. might be made without any suit at all ; — that even the failure of justice in some particular cases would be less prejudicial than attempts to obtain it by violating immu nities thought necessary to the independence of Princes and Nations. I think that, on the whole, it ought to be considered as a general rule in accordance with the Law of Nations, that a Sovereign Prince, resident in the do minions of another, is exempt from the jurisdiction of the Courts there. It is true, as was argued for the plaintiff, that the common interest of mankind requires that justice should everywhere be done ; and that for the attainment of justice, all persons should be amenable to the Courts of Justice in the country where they are. Such is the general rule — but in cases where either party has no superior, by whom obedience can be compelled, where the execution of justice is not provided for by Treaty, and cannot be enforced by the authority of the Judge — and where an attempt to enforce it by the authority of the State may probably become a cause of war, the same common interest, which is the foundation of the rule, requires that some exception should be made to it ; and that exception is the general rule with respect to So vereign Princes. The question then arises, whether the exception in favour of Sovereign Princes, and the exemption from suit thereby allowed, is to be entire and universal, or subject to any and what limitations % The Act of Parliament relating to Ambassadors pro fesses to be, and has (1. Barnw. and Cr. 562,) frequently been adjudged to be, declaratory, and in confirmation of APPENDIX. 391 the Common Law ; and, as Lord Tenterden said, " It must be construed according to the Common Law, of which the Law of Nations must be deemed a part." The Statute does not, in words, apply to the case in which the Ambassador might be a subject of the Crown of England. But there is an exception to the exemption in the case of bankrupts in the service of Ambassadors — and cases have frequently occurred in which an Ambas sador has himself been a subject of the Sovereign to whom he was accredited ; — and notwithstanding some differences of opinion on the subject, it seems to be con sidered that such an Ambassador would not enjoy a per fect immunity from legal process, but would have an immunity extending only to such things as are connected with his office and ministry, and not to transactions and matters wholly distinct and independent of his office and its duties. Bynkershock (Op. ii. 162) thus expresses his opinion : — " Legatura scilicet manere subditum, ubi ante legationem fuit ; atque adeo si contraxit, aut deliquit, subesse imperio cujus antea suberat. His autem conse- quens est, nostros subditos quam vis alterius Principis lega tionem accipiant subditos nostros esse non desinere, neque forum quo semper usi sunt jure subterfugere." And Vattel (B. IV. c. 8, sect. 112) says, " It may happen that the Minister of a foreign power is the subject of the State in which he is employed, and in this case he is unques tionably under the jurisdiction of the country in every thing which does not directly relate to his ministry : " and after some discussion upon the question how we are to determine in what cases the two characters of subject and foreign ministers are united in the same person, 392 MEMOIR OF HENRY LORD LANGDALE. Vattel adds, " Whatever inconveniences may attend the subjection of a Minister to the Sovereign with whom he may reside, if the Foreign Prince chooses to acquiesce in such a state of things, and is content to have a Minister on that footing, it is his own concern." And presuming from this view of what is considered to be the Law of Nations, that with respect to the immu nity of an Ambassador who is a subject in the country of his residence, it must be distinguished what acts of his were connected with or required for the discharge of the duties of his ministry and what were not ; and that with regard to acts connected with his ministry, the Courts (considering his character of Ambassador) would hold him to be exempt from suit, but that with regard to acts not connected with his ministry, the Courts (considering his character of subject) would hold him liable to suit, the inquiry is, whether in like manner a Sovereign Prince, resident in the dominions of another Prince, whose sub ject he is, may not justly and reasonably be held free from suit in all matters connected with the Sovereignty, and his rights, duties, and acts as Sovereign, and yet be held liable to suit in respect to all matters unconnected with his Sovereignty, and arising wholly in the country to the Sovereign of which he is a subject. The first and most general rule is, that all persons should be amenable to Courts of Justice, and should be liable to be sued. A consideration of the policy of the law, creates an exception in the case of Sovereign Princes. May not a further consideration of the policy of the law create a modification or limitation of the excep tion, in the case of Sovereign Princes who are subjects 1 APPENDIX. 393 There are in Europe other Sovereign Princes,* who, if not now, have been subjects of the country of their origin or adoption. Upon such a question as this I can not disregard those cases; but they may have their specialities, of which I am not aware. I cannot venture to say that a subject acquiring the character of a Sovereign Prince in another country, and being recognized as a Sovereign Prince by the Sovereign of the country of his origin, may not, by the act of recognition, in ordinary circumstances, and by the laws of some countries, be altogether released from the alle giance and legal subjection which he previously owed ; but the case now before me must depend on its own circumstances ; and I am of opinion that it is not con trary to any principle, and not unreasonable, to consider that, in the contemplation of the Courts of this country, the inviolability which belongs to his Majesty the King of Hanover as a Sovereign Prince, ought to be, and is modified by his character and duties as a subject of the Queen of England. Previously to his becoming King of Hanover, he always lived in allegiance to the Crown of England, and in sub jection to the laws of England. His accession to the throne was cotemporaneous with the accession of the Queen to the throne of this kingdom ; and since he became King of Hanover, he has been so far from re nouncing, or from showing any desire to renounce, his allegiance to the Crown or his subjection to the laws of England — he has been so far from admitting it to be questionable, whether his Sovereignty and the recogni- * Bernadotte, Leopold, Otho. VOL. II. D D 394 MEMOIR OF HENRY LORD LANGDALE. tion of it by the Queen has absolved his allegiance or his subjection to the laws of England, that he has re newed his oath of allegiance, and taken his seat in the English Legislature, and has claimed and exercised the political rights of an English subject and an English Peer. If he came here as King of Hanover only, the same inviolability and privileges which are deemed to belong to all Sovereign Princes would have been his, and, save in the peculiar cases, such as I have before referred to, he would have been exempt from all suits and legal process. But coming here, not as King of Hanover only, but as a subject, as a Peer of the realm, and as a member of the Privy Council, can it be reasonably said that he is exempt from all jurisdiction, or, in other words, from all responsibility for his conduct in any of those characters ? The law of England admits the legal inviolability of the Sovereign, requiring, at the same time, the legal responsibility of those who advise the Sovereign. Can the law of England, in any individual case, admit the strange anomaly of an inviolable adviser of an inviolable Sovereign ? of a legal subjection, without any legal superiority % Can any Peer or Privy Councillor, what ever station he may occupy elsewhere, be permitted to give advice for which any other Peer, or any other mem ber of the Privy Council might be justly impeached, and yet hold himself exempt from the jurisdiction of the highest tribunal in the realm ? May he enter into a con tract which any other subject would be compelled to perform, and yet refuse to answer any claim whatever, either for specific performance or for damage % APPENDIX. 395 Great inconveniences may arise from the exercise of any jurisdiction in such a case. They arise, perhaps, in evitably from the two characters which his Majesty the King of Hanover unites in the same person ; and from the claim which he voluntarily makes to enjoy or exer cise concurrently in this country his rights as a Sovereign Prince, and also his rights as an English subject, Peer, and Privy Councillor. He is a Sovereign Prince, and as such inviolable in his own dominions, and I presume, also, in the dominions of every other Prince to whom he is not a subject. Remaining in his own dominions, or in the dominions of any other Prince to whom he is not a subject, he would, as I presume, be exempt from all forensic jurisdiction ; but he comes to this country, where he is a subject, and claims and exercises his rights as such. As a subject, he owes duties correlative to which, not individuals only, but the country at large, may have legal rights which are to be respected, and, being legal rights against a subject, in respect of his acts and duties as a subject, it seems that they ought, if necessary and practicable, to be vindicated and enforced by the law. Those legal rights would be nugatory, if his inviolability as a Sovereign Prince would admit of no exception or modification. But any contradiction or inconsistency may be obviated by distinguishing, as in the analogous case of the Ambassador, the acts which ought to be attributed to one character or the other ; and it appears to me, that when necessary it must be the office and duty of the Courts to make the distinction. If the distinction can justly be made, why should it not % and why should not the jurisdiction be ex- D D 2 396 MEMOIR OF HENRY LORD LANGDALE. ercised so far as the circumstances of the case will allow 1 Admitting it to be the general rule, that Sovereign Princes are not liable to be sued, and that all Sovereign Princes may consider themselves interested to maintain the inviolability which each one claims, and that any aggression upon it might, in ordinary circumstances, be a cause of war, yet, observing what is stated to be the law of nations in the case of Ambassadors, conceiving that a rule applicable only to the case of Sovereigns who are subjects, and think fit actively to exercise their rights as subjects, cannot have any extensive application, and is not likely to excite any general interest, or any alarm, and having regard to that which is absolutely required to maintain the relation of Sovereign and subject in any country, I am of opinion that no complaint can justly, or will probably arise, from any legal proceeding, the object of which is to compel, as far as practically may be, a Sovereign Prince residing in the territory of another Prince, whose subject he is, to perform the duties of a subject in relation to his own acts done in the character of subject only. And admitting that in ordinary cases, it may happen that the execution of a decree cannot be enforced against a Sovereign Prince, though a subject of this realm, I do not think that for that reason a plaintiff should be de prived of all means of establishing his right in a due course of procedure. I do not think that I ought to presume that a Sovereign Prince, who deems it to be con sistent with his dignity and interest, to come here and practically exercise the rights of an English subject, will APPENDIX. 397 not also deem it consistent with his dignity and interest, to yield willing obedience to the law of England when duly declared. And for these reasons I am of opinion, that his Majesty the King of Hanover is, and ought to be exempt from all liability of being sued in the Courts of this country, for any acts done by him as King of Hanover, or in his cha racter of Sovereign Prince ; but that being a subject of the Queen, he is and ought to be liable to be sued in the Courts of this country, in respect of any acts and trans actions done by him, or in which he may have been engaged as such subject. And in respect of any act done out of this realm, or any act as to which it may be doubtful whether it ought to be attributed to the character of Sovereign, or to the character of subject, it appears to me, that it ought to be presumed to be attributable rather to the character of Sovereign, than to the character of sub ject. And it further appears to me, that in a suit in this Court against a Sovereign Prince, who is also a subject, the Bill ought upon the face of it to show that the sub ject-matter of it constitutes a case in which a Sovereign Prince is liable to be sued as a subject. I cannot, therefore, consider the present suit as an ordinary suit between subject and subject ; it is a suit against a defendant who is prima facie entitled to special immunities, and it ought to appear on the Bill that the case made by it, is a case to which the special immunities ought not to be extended. What is shown is, that the defendant is an English 398 MEMOIR OF HENRY LORD LANGDALE. subject, and may, therefore, not be exempt from suit in some cases. Is it shown that this is one of the cases in which the defendant is liable to be sued ? The object of the suit is to obtain an account of pro perty belonging to the plaintiff, alleged to have been possessed by the defendant under colour of an instrument creating a species of guardianship unknown to the law of England. It is not pretended that any one act was done, or that any one receipt, in respect of which the account is asked, was made in this country. Every act alleged as a ground of complaint was done abroad in Brunswick, in Hanover, or elsewhere in foreign countries. No act alleged as a ground of complaint was done by the de fendant before he became King of Hanover ; and from the nature of the transaction, and the recitals in the instru ment, there are strong grounds to presume, that it was only by reason of his being King of Hanover, that the defendant was appointed guardian of the plaintiff's for tune and property. It is not pretended that the instru ment has been impeached, or attempted to be impeached, in the country where alone it has its locality and opera tion, although it is alleged to be illegal there, and no reason is given why the plaintiff has not availed himself of that illegality to obtain relief from it. It is alleged to be null and void here, and upon this I may observe, that although with regard to English instru ments intended to operate according to English law, the Court knowing the nature of the instrument, the relation between the parties to it, and the law applicable to the case, may be able, even on demurrer, in a simple case to adjudicate thereon, upon a mere allegation that the in- APPENDIX. 399 strument is null and void, yet that with regard to a foreign instrument, intended to operate according to a law not known in England, and which, as foreign law, is to be proved as a fact in the cause, an allegation that the instrument is void is too vague. But passing that over, and considering the other matters which I have men tioned, and observing that, notwithstanding the allegation at the bar, that the instrument complained of is wholly independent of any political or state transaction, it is in the Bill stated as the sequel to a political revolution, which resulted in the deposition of a Sovereign Prince, and the appointment of a successor made under the authority of a Decree of the Germanic Diet, by the late King of Hanover and the reigning Duke of Brunswick : considering also that the instrument stated as the sequel of these political proceedings (which I must consider to be either wholly immaterial, or as introduced into the Bill for the purpose of showing the character of the transaction in question), is stated to have been executed by the late King of Hanover and the reigning Duke of Brunswick ; and considering further, the objects for which the instrument is purported to have been executed. Con necting those objects with the political transactions stated in the Bill, and the transactions alleged to have taken place at Osterode in 1830, I should, if it were necessary for me to decide the question, be disposed to think that the instrument complained of is connected with political and state transactions, and is itself what, in common par lance, is said to be a state document, and evidence of an Act of State. But upon this occasion it is not? necessary for me to 400 MEMOIR OF HENRY LORD LANGDALE. give any opinion upon the question, Whether the act complained of is or is not an act of state, or upon the question, which seems to have been raised in France, Whether the Courts of a foreign country ought to take notice of such an instrument, for the purpose of enabling the guardian, under its authority, to possess the property and effects of the plaintiff in such foreign country \ It is not even necessary for me to decide the question, Whether, as against a subject only, this Court would have any jurisdiction to give relief in respect of acts done abroad, under such a foreign instrument as this. The question which I have had to consider is, Whether, under the circumstances of this case, and against a Sove reign Prince who is a subject of the Queen, this Court has the jurisdiction which is attributed to it by the Bill? And I am of opinion, that the alleged acts and trans actions of the defendant, under colour or under the authority of the instrument in question, are not acts and transactions in respect to which the defendant is liable to be sued in this Court, or in respect of which this Court has any jurisdiction over him. Let this demurrer therefore be allowed. Lord Langdale's Judgment in the Suit of Whicker v. Hume. 14th January, 1851. In this case, it was (11th of January, 1843) referred to the Master to inquire where John Borthwick Gil- APPENDIX. 401 christ was domiciled at the time of his death (8th of January, 1841). The Master reported, that he was then domiciled in England, and the case comes before me on exceptions to the Master's report, which have been filed by the plaintiff (one of the testator's next of kin), who alleges that the testator at the time of his death, was domiciled in Scotland, or if not in Scotland, in France. The question is one, which under ordinary circum stances is proper to be decided upon the trial of an issue, and I should have adopted that course on this occasion, if all parties had not concurred in requesting me to determine the exceptions here upon the evidence which was taken before the Master. The evidence adduced is extremely voluminous. There are several affidavits and an extremely long correspondence, consisting principally of letters written by the testator himself, and containing statements of his acts and intentions — many of these statements are of an ambiguous nature — and very few, if any of them, of a character to be entirely satisfactory and conclusive. The testator was born in Edinburgh of Scotch parents, domiciled in Scotland in the month of June 1759 ; he was educated there, and apprenticed to a surgeon at Falkirk ; he was in his early youth in the West Indies for two or three years, but in 1782 he went from Scotland to the East Indies, and entered into the service of the East India Company there. He remained in the East Indies till the year 1804 ; and during his stay there, was appointed, at first Assistant-Surgeon (6th of May, 402 MEMOIR OF HENRY LORD LANGDALE. 1789), and afterwards (20th of April, 1798), surgeon in the service of the Company. It appears that he had paid much attention to the study of Oriental languages ; he was (24th of December, 1798) appointed Professor of the Hindostanee and Persian languages, in the Col lege of Fort William, and he had spent much time in the preparation of literary works on the subject. In 1804 his health had become impaired, he re signed his Professorship, and obtained leave to return to England. The testator was then about forty-five years of age, and it does not clearly appear what plan he had formed for the settlement or employment of his future life — he was looking to both Edinburgh and London — to Scotland and to England. In Edinburgh, and in the year 1804, he presented to George Heriot's Hospital 100/., as a small testimony of gratitude for his education there ; he procured himself to be admitted a burgess and guild brother of the city, and caused his armorial bearings to be matriculated in the Lyon office, and obtained a diploma of the Academy of James VI, of the City of Edinburgh, and in the year 1805, it is said that he embarked in the wholesale linen trade in Edinburgh. He seems, however, for some time, to have principally resided in the neighbourhood of London. On the 28th of May, 1805, he obtained a pension from the East India Company, as a surgeon retired. He endeavoured to promote the sale of the works on Oriental languages which he had prepared, by giving lectures on the subject. And on the 21st of February, 1806, he was appointed APPENDIX. 403 professor of Oriental languages in the college of the East India Company, at Haleybury, which, however, he held only for a few months. In the meantime, he claimed to be connected with the noble Scotch family of Borthwick; conceived that he had some right to the title then supposed to be only in abeyance, obtained (20th of March, 1806), a royal licence to take and use the name of Borthwick, and (5th of June, 1806) ob tained a grant of arms, in which he was described as John Borthwick Gilchrist, of Camberwell. He continued for some time to give lectures (which are called gratuitous) on Oriental languages with a view to promote the sale of his literary works ; but about the year 1806 he seems to have resolved to settle in Edinburgh. He became (23rd of December, 1806) a member of the Company of Merchants in that city, and entered into partnership as a banker with James Inglis, although the formal instruments were not executed till a later date (1808 and December 26). Yet the commencement of the partnership business was to date from the 1st of January, 1807. The partnership property consisted of a heritable flat in Hunter Square where the business was carried on, and 20,000/. stock or 200 shares of 100/. each, in the Commercial Bank of Scotland. With reference to the time when his en gagement to the East India Company may be strictly said to have ceased, it may not be quite clear at what particular time the testator ought, in strictness, to be said to have been domiciled in Scotland, but the proof appears to me to be clear and satisfactory that Edinburgh was his domicile, with all the legal incidents of domicile, 404 MEMOIR OF HENRY LORD LANGDALE. some years before the year 1817. He was then, and it is justly and necessarily admitted that he was then domiciled at Edinburgh, which was, or had been, his domicile of origin, the place of his birth and education to which he was naturally attached by all the strong ties by which all men (and Scotchmen perhaps more than others) are bound. He had early paid certain debts left unpaid by his father and mother, and had prevailed on his mother to return from Newfoundland and join him in Edinburgh. He purchased (3rd of April, 1807) a house at No. 6, Nicholson Square, and resided there with his wife (whom he married in May, 1808) ; and besides the interest he had in his business as a banker, he attended to the printing, publication, and sale of his literary works, and became a member of the Royal Society of Edinburgh, the Horticultural Society, the East India Club, and the Scottish Military and Naval Academy. Everything indicated that he was settled, and such appears to me to have clearly been his inten tion. But in the year 1815 the banking firm of Inglis, Borthwick, Gilchrist, & Co. fell into difficulties ; the testa tor could not support the expenses to which he had been accustomed. The partnership was dissolved. The testa tor retired as from the 30th of June, 1815. In the year 1816 he went to reside at Inchyra House in Perth shire, and after returning for a time to Edinburgh he went to London in June, 1817. It appears to me, from the evidence, that he left Edin burgh with the intention to abandon it as his place of permanent residence, and that he arrived in London with APPENDIX. 405 no certain or settled determination what to do or how to employ himself. He had affairs at Edinburgh which could not be imme diately settled ; his property there consisted in part of his moiety of the flat in Hunter Square, where the bank ing business had been carried on, and of his share in the Commercial Bank Stock. He was indebted to the Commercial Bank in a considerable sum of money, and there were, I think, some partnership concerns not en tirely arranged. His house in Nicholson Square was on hand and could not be easily sold, or even let ; he had a stock of books in the hands of agents to sell ; and other books used as his library. And moreover he had a family of natural children who appear to have been extremely troublesome to him, and to have occupied much of his at tention. When he left Edinburgh he omitted to relieve himself from the liabilities to which he was liable in consequence of his being a member of various societies there. These several matters are frequently mentioned in his correspondence which can only be understood with reference to them and to his peculiar cha racter. He was a man in the utmost degree self-confident, measuring the abilities, and even honesty, of other per sons by their more or less accordance with his own views. He had no confidence whatever in the stability of the Government and institutions of the country, but had very great confidence in every scheme of his own sugges tion, believing that his own abilities and honest purposes, ought to insure success to every adventure in which he engaged; he very readily engaged in new speculations, 406 MEMOIR OF HENRY LORD LANGDALE. but he as readily abandoned them, if he found that he could not control them. There is necessarily much un certainty in the conclusions which ought to be deduced from the declarations of such a person on particular occasions. He was irritable and rash, and, like all such persons, no doubt often uttered expressions which could not be considered as satisfactory proofs of settled in tention. He very naturally desired to turn his knowledge and abilities to profitable use. He mainly relied on his mode of teaching oriental languages. He thought it peculiarly his own, and expected to derive from it both honour and profit. To these views. he seems to have been more constant than to any other ; to them, as far as he could, he made all other views subservient. His plans upon the subject commenced in India before 1802 ; were pursued in London, whilst he remained in the neigh bourhood of London, before he went to reside in Scot land; were pursued in Scotland during his residence there ; and were, probably, the principal, if not the only subject of his consideration when he arrived in London in 1817. He desired the assistance and influence of the East India Company, and submitted, though it would seem with reluctance, to seek for their patronage and support ; his character, in some opposition or even conflict with his position and interest, gave rise, in process of time, to some inconsistencies and some uncertainty. While he thought it useful, or perhaps necessary, for his purpose, he wished to receive assistance or favour ; but he could not refrain from seeking to establish a claim adversely; APPENDIX. 407 his petitions to the East India Company were accom panied, or soon followed, by attacks very likely to pro duce unfavourable effects ; he seems to have truly de scribed himself as irritable and irritated ; and his correspondence abounds in indications of his condition in that respect. Such being the man, he resided in London from the middle of 1817 till 1827 or 1828, mostly in lodgings, but for a time in a house which he hired furnished. I consider it to be immaterial whether he resided in a house of his own or in lodgings ; in fact, he resided in London, with such occasional exceptions or absences as were consistent with London being his usual and common place of residence ; we have the undoubted fact of residence ; and if we can see from the evidence, that this fact, during its continuance, was accompanied by an intention to make London his permanent place of resi dence, and the central place of his affairs and business, then it must, I think, be considered that London became his domicile, with the legal incidents of domicile. His attention was first directed to the East India Company. He succeeded in obtaining some, though not a satisfactory, increase of pension — and he hoped to increase the sale of his books by obtaining authority to give lectures with the sanction of the Company ; his applications were continued for what he thought a very long time, and were not so successful as he hoped ; and in June, 1818, he informed Mr. M'Hutchin that he had been worried night and day concerning his business with the Court of Directors for six months past — he feared to little purpose ; still he could not quite despair, and 408 MEMOIR OF HENRY LORD LANGDALE. should keep at them a little longer. He persevered, and he occupied himself in preparing to give lectures ; and to some extent his perseverance was rewarded with success ; and, on the 4th of November, 1818, he was informed that, with the view of encouraging him to establish lectures of the description he had proposed, and enter taining the highest opinion of his merits and qualifica tions for the objects in question, the Court of Directors had resolved to allow him the sum of 200/. per annum for three years, at the expiration of which period, it would appear how far the advantages which he anti cipated were likely to be realized ; and the Court further resolved that all persons appointed to the Company's Medical Service, should be required to attend one course of his lectures, for admission to which they should not pay more than three guineas. This appointment was tem porary ; but by its assistance the testator was enabled greatly to increase the sale of his books, and I think, that from that time, he and his wife considered them selves to be fixed in London, and he looked forward to paying a short visit to Edinburgh to wind up his affairs there ; he did not consider the professorship, as he called it, profitable in itself, but rather as a losing concern, except as it increased the sale of his books, which was his main object and reliance. He had early begun to think that he liked London better than Edinburgh, and his dislike to Edinburgh seemed to increase. He desired the stock of salable works, with an exception, and his whole library, such as it was, to be sent from Edinburgh to London, and he effected some reduction of the debt which he owed to the Commercial Bank. He seems to APPENDIX. 409 have considered himself bound to London by official duties, as he called them. The sale of his literary works was, I think, his principal business, but it was not very long before he hoped to improve his income or acquire distinction and importance by some additional employ ment ; and in the different projects which he formed during his residence in London, it is plain that one prin cipal circumstance upon which they were all founded was his own residence in London. Whatever he proposed to do in the various occupations which he at different times contemplated, his contemplated place of action was London. It was there that he was to be either entirely or principally. At various times he proposed to become a director of the European Insurance Company, to acquire some influence or interest in the Brecon Insurance Com pany, to take an active part in managing the business of a proposed Herring Fishery — of a Joint Stock Bank of England and Scotland — to become gratuitously a director or agent of the Scotch Military Academy— to become director and honorary corresponding secretary of the southern Edinburgh School, and of the Exeter Public School Committee in London. In these, and other projects, which may have occurred to his versatile and active mind, London was contem plated as the place where he was to be and to act ; and in considering the whole correspondence, while one is surprised at the rapid succession and abandonment of different schemes for obtaining profit or distinction, im portance or notoriety, there seems to be a steady and consistent contemplation of London as the place where his exertions were to be mainly, if not exclusively, exer- VOL. n. E E 410 MEMOIR OF HENRY LORD LANGDALE. cised. This might have been consistent with an inten tion to return to Scotland, or to reserve another home or final resting-place after he should have satisfied his imme diate purposes : but of this there is no evidence. He certainly never thought of repudiating or abandoning his character of a Scotchman. He did not cease to take an interest in his native place : he would probably have been glad to attach his name permanently in some con spicuous manner to Edinburgh, the place of his birth and education, notwithstanding the disgust which he had ex pressed on leaving it. He paid it two or three transient visits, but I find no trace whatever of his having altered the resolution which he had so strongly expressed, to abandon it ; and, on the whole, I am of opinion, that the fact of his residence in London was accompanied by a train of conduct and facts, so clearly manifesting his in tention to reside there permanently or principally, and to make London the centre of his affairs and business, that it must be concluded that in and before the year 1828, London had become and was his domicile. He was a Scotchman born, educated in Scotland and domi ciled there before 1817, but he afterwards abandoned Scotland as his residence, removed to England, and resided there, under such circumstances, and with such intentions, as to fix his domicile there. Such being my opinion, the question then is, whether any alteration afterwards took place ? The failure of his health, and that of his wife, and perhaps considerations of economy, seem to have been the sole reason for their subsequent movements, whether they were together or separate. They went to the Continent at first, for longer APPENDIX. 411 or shorter, or uncertain periods, plainly without any fixed or settled plan, and without any intention of arranging for the transaction of anything but occasional business elsewhere than in London. He left there his letters, papers and deeds, his library, and some furniture, and his stock of salable works; and arrangements were made with reference to his being absent only for a short time ; and what happened on his subsequent visits to London, and particularly in the visit of 1833, tends much more to corroborate the notion that he considered London to be his home, than to favour the idea of any change of plan. It does not appear to me to be necessary to fol low his movements and correspondence in minute detail. There is, I think, nothing to show any intention to change his domicile in the legal sense of the word. But the exceptant relies very much on the testator's resi dence at Paris in and after the year 1837 ; and it seems that in July 1837 he agreed to take a lease of apart ments in Paris for three, six, or nine years, at the option of lessor or lessee, each party being allowed to determine the lease, on giving six months' notice before the expi ration of the three or six first years of the lease, to be reckoned from the first day of October then next. In the apartment comprised in that lease he died soon after the expiration of the first three years. He visited Eng land in the year 1840. When there he gave directions as to the transaction of his affairs, and instructed his solicitor (Mr. Braikenridge) to prepare his will, which was to be sent after him to Paris, to which place he returned in October of the same year. The draft of his will was prepared in the English form, 412 MEMOIR OF HENRY LORD LANGDALE. which would naturally be adopted by Mr. Braikenridge in the absence of any instructions to the contrary. It can, however, have no weight as evidence in this case, that Mr. Braikenridge did not know or consider that the testator was not domiciled in England. It does not ap pear that the testator was himself aware that the place of his domicile was material to be considered in determining the form of his will. Before Mr. Braikenridge's draft arrived at Paris, the testator employed Mr. Lawson to prepare a will for him there ; and Mr. Lawson also prepared the will in the English form. He did this after endeavouring to ascer tain the testator's domicile ; but I think that it would not be safe to attach much weight to this evidence. Whether the testator had domiciled in England does not depend on evidence of this sort, or of any facts then occurring. That was established, as I think, before the year 1828 ; and in 1840 the question was, whether the testator had changed his domicile since his English domicile was acquired % But the exceptant has relied on the description of himself, which the testator adopted and caused to be inserted in his will. On the 8th of Decem ber 1840, Mr. Lawson had described him as "Doctor of Laws and Literature, late a Surgeon in the Honourable East India Company's service, on their Bengal establish ment, now residing at No. at Paris, in the King dom of France." The testator altered this, and caused himself to be described as "John Borthwick Gilchrist, of the city of Edinburgh, but now residing at No. 1 8, Rue Matignon, in the city of Paris, in France, Doctor of Laws, formerly for many years in the medical service of the APPENDIX. 413 East India Company, in Bengal, and one of the Professors in the Oriental College of Calcutta, and author of many works on the Oriental Languages." " Of the city of Edinburgh," are the only words of any importance in this description ; they are consistent with and may indicate the fact that the testator was born there. It was formerly very common for authors and persons desiring distinction, to designate themselves by the names of the place of their origin. The instances in which this was done are too numerous and well known to make it necessary to give examples ; but it is unnecessary to consider this as no description which the testator could have given of himself, nor would it, by itself, have had any effect in determining his domicile. In the course of the argument, it seems to have been considered that the testator could not acquire a domicile without repudiating his nationality, his character or qua lity of Scotchman, in a country where he was only a lodger and not a housekeeper ; for these notions there is no foundation in law. And on a consideration of the whole case, I am of opinion that the testator, a native Scotchman, was domi ciled in Scotland in 1817, and afterwards became domi ciled in England, and was so in 1827. That his English domicile was not changed, and that he was domiciled in England at the time of his death. The exceptions must, therefore, be disallowed. 414 MEMOIR OF HENRY LORD LANGDALE. Extract from Lord Langdale's Judgment in the Suit of the Attorney-General v. Caius College, Cambridge, referred to in vol. i. p. 300. " The foundation of the charity being such as I have stated, it appears from the proceedings in this cause, that there have been considerable errors and irregulari ties in the management of the property, in the distri bution of the income, and more particularly in the conduct and management of the school. The defendants admit at the bar that it has been so, and that they are so far from interposing any obstacle to the due regulation of the charity, that they offer to give every facility for that purpose. Under these circumstances, it is clear that there must be a reference to the Master to approve of a scheme for the application of the income of the property belonging to this foundation, and for the conduct and managing of the school, and that there must be an account of the receipts and payments of the defendants. But the re lators, in the name of the Attorney-General, insist that besides this relief, the Masters and Fellows of the college ought not to be allowed to act any longer as trustees of the property, and that as against the Master and one of the Fellows, the account ought to be carried much further back than the filing of the information. And some ques tions are raised respecting the declarations which ought to be made for the guidance of the Master in the settling the schemes respecting the proper inquiries for ascertain ing the property, and respecting the costs of the suit. APPENDIX, 415 Upon the question, Whether there ought to be new trus tees % I am of opinion, that I ought not to apply to the case any such general principles or general reasonings as have been urged at the bar. It is not for me to consider whether corporations or colleges are or are not in a gene ral view well or ill qualified to be trustees. The founders of many charitable institutions have thought fit to ap point colleges to be trustees of their foundations ; the law has allowed this to be done, and Courts of Equity are not, in my opinion, at liberty to say that this shall not be done, upon the notion that when individuals are trustees, you have a greater personal responsibility, — how little that personal liability is in many cases available, experience shows us, — but I consider it clear that these are not consi derations which this Court is at liberty to resort to on such questions. And I cannot admit the validity of the argu ment which, after collecting all the errors and misapplica tions which, after a careful examination of the original documents, appear to have been committed by the present members of a college or corporation and their predeces sors for two centuries past, affirms that every error was wilfully committed, and infers from the total amount of them that the present members of the college or corpora tion, and their successors in all time to come, are and will be incompetent faithfully to fulfil the office of trus tees ; and, on the other hand, when I see how anxiously the founder in this case has connected his foundation with the college, and the utter impossibility of separat ing one from the other without defeating his plain and manifest intention, I conceive it to be perfectly clear that the college cannot be removed from the office of trustee 416 MEMOIR OF HENRY LORD LANGDALE. on any of the grounds stated, and it does not appear to me that the circumstances of this case make it fit to accede to the proposal which has been made to appoint new trustees, without prejudice to the rights of the col lege as supervisors, or that any real advantage would be gained by it. It seems to me that whatever regulations might be made in that respect, the effective adminis tration must consistently with the testator's intention, substantially remain with the college, and that, after all, the right of resorting to this Court would, as in other cases of trust, afford the only real and effective security for the due administration of the trust. With respect to the accounts : As against the college and the defendants, Messrs. Turnbull, Musgrave, Houl- ditch, and Thurtell, nothing more is asked than an ac count from the filing of the Bill. But with respect to the Master of the college and Dr. Woodhouse, it is asked that they should be ordered to refund certain sums which they have received beyond the amount of what was justly payable to them. As to the allegation on which this demand is made, I am under the necessity of saying, that after considering the nature of this foundation, and the facts stated in the answer, it does in my present view of the case appear to me, that considerable overpayments were made to the Master and four senior Fellows before the year 1830; but notwithstanding that, considering all the circumstances of this case, that the first deviation from the letter of the will in favour of the Master and four senior Fellows was made (in the year 1787) before the present Master was a member ofthe college ; that the alterations in 1804 and in APPENDIX. 417 1812, in which the present Master concurred, were made in conjunction with the four senior Fellows of those times respectively, and who are now before the Court; that the alteration in 1825, in which the present Master and Dr. Woodhouse partook, were made in concurrence with three other senior Fellows, who are not now before the Court, and one of whom has been dismissed from the suit since its institution ; considering further, that the amount which in reference to all the circumstances of this case the Master and four senior Fellows might have been justi fied in receiving, has not been ascertained, but is now subject to question, so that the amount of the over payment is even at this time unknown ; and conceiving that the excess cannot, under the circumstances of this case, be fairly measured by the advance from the previous payment, and also considering that in 1830, when the objectionable nature of what had been done was first brought to the attention of the Master and four senior Fellows, a correction (whether adequate or not) was bond fide undertaken to be applied, and was in fact applied ; having regard to the admissions properly made at the bar, that no corruption or improper motives is chargeable against any of the parties in this cause, and that every facility is now offered in placing the matter upon a proper footing, I am of opinion that I should deviate from the principles on which the Court has acted in such cases, if I were to direct the account to be carried back against the Master and Dr. Woodhouse in the manner that has been asked. With respect to the declarations which ought to be made, it appears to me that they should be so far parti- VOL. n. * * 418 MEMOIR OF HENRY LORD LANGDALE. cular as to call the attention of the Master distinctly to the property to be applied, and to the purposes to which it is applicable ; and under the circumstances of this case, I think that I cannot properly make a decree leav ing to the defendants so much discretion as was done in the case of Jemmit v. Verril (Ambler. 585 n). I therefore propose to declare almost in the terms which have been asked by the relators in the name of the Attorney- General. The costs of the suit remain to be considered. The relators must have their costs out of the fund. They do not ask any costs against the defendants, but they desire that all the defendants should be made to bear their own costs of these proceedings. On what ground this is desired against the defendants Messrs. Turnbull, Musgrave, Houlditch, and Thurtell, has not been stated ; it is desired against the college, the Master of the college, and Dr. Woodhouse, on account of their participation in those acts which now appear to be breaches of trust. I should be sorry to say anything from which it could be inferred that corporations and colleges are not bound strictly to perform the trusts they undertake ; but it is evident that in charging corporations consisting of fluc tuating members, they cannot be dealt with as individual persons, for by doing so, we should visit the present mem bers with the consequences of errors committed by their predecessors, whom they do not in any respect represent, and in every case of this sort we must look at all the cir cumstances ; there are errors and misapplications such as have been dwelt on at the bar ; all of them had their APPENDIX. 419 origin before any of the present defendants came into the college ; some of them have been greatly aggravated since, and what has been done, particularly in regard to the school and the school-house, cannot be considered without very great regret ; but it appears to me clear from the answers, that in the ignorance in which all parties were as to the particular regulations which they ought to have followed or made, they really, when they were acting most errone ously, thought themselves acting fairly, even with regard to the school, and at liberty to do all that they did. Their attention was never seriously drawn to the subject till 1830, and they then began to inquire for the documents by which they were to be guided. They were prosecuting those inquiries, and obtaining the advice ne cessary for their guidance, when, without any previous application being made to them, this information was filed, and their proceedings were arrested. In 1830 they had, without suit, altered the distribution, which has been, as I think, justly complained of ; they then adopted a new distribution, the propriety of which is certainly open to question, but which was meant to put an end to all breach of trusts, and, for anything that I can clearly see to the contrary, they might, from the course they were in, have proceeded to place (as it undoubtedly was their duty to place) the school upon a proper footing, without the interposition of this Court. Moreover, not withstanding the errors committed, the college, as trus tees, have by their care accumulated from the income of this property the several funds mentioned in the answer of Mr. Thurtell, viz., 25,100/. 3 per Cent. Annuities, 2400/. South Sea Annuities, and 5000/. Exchequer Bills. 420 MEMOIR OF HENRY LORD LANGDALE. This accumulation is (amidst all the errors which have been committed) the result of the care and economy of the trustees, and now remains applicable to the pur poses of the foundation, to the great advantage, as I hope, of the school and the other objects of the testator's bounty. Under all these circumstances, though I certainly have hesitated very much, yet, on the whole, it appears to me that I shall not do wrong in allowing these defendants their costs of this suit out of the fund which has been accumulated and preserved for the foundation by the care and economy of themselves and their predecessors. THE END. LONDON; Printed by Samuel Bentley and Co., Bangor House, Shoe Lane. YALE UNIVERSITY LIBRARY 3 9002 04067 5887