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THE LIVES
OP
THE CHIEF JUSTICES
OF
ENGLAND.
VOLUME III.
LIVES
OP
THE CHIEF JUSTICES
OF
ENGLAND.
FROM THE NORMAN CONQUEST TILL THE DEATH
OF LORD TENTERDEN.
BY
JOHN LORD CAMPBELL, LL.D., F.R.S.E.,
AUTHOR OF
" THE LIVES OT1 THE LOKD CHANCELLORS OF ENGLAND."
IN THREE VOLUMES.
VOL. III.
LONDON:
JOHN MURRAY, ALBEMARLE STREET
1857.
The right of Translation is reserved,
LOWDON : PRINTED BY W. CLOWES AND SONS, DUKE STREET, STAMFOKD STREET,
AND CHARING CROSS.
PREFACE
TO THE
THIRD VOLUME OF THE LIVES OF THE
CHIEF JUSTICES.
I COMPLETE my engagement with the public by
bringing down this work to the death of Lord Chief
Justice Tenterden. A quarter of a century having
elapsed since that event, I hope that I may now
continue my series of Chief Justices from Lord
Mansfield, without being liable to the censure of
wantonly wounding the feelings of the relations and
friends of those whose names appear in my narrative.
I cannot think that the circumstance of my having
myself in the mean time become a Chief Justice
disqualifies me for being the biographer of my pre-
decessors, or that it should induce me in any measure
to vary the principle on which my " Lives " have
been composed. I still consider it my duty to ex-
tenuate nothing, being sure that I do not set down
aught in malice. By some persons, probably very
respectable, though given to HERO-WORSHIP, I have
been blamed for following this course, — even with
VI PREFACE TO THE THIRD VOLUME.
respect to Judges who for centuries have been re-
posing in the tomb. I have incurred much obloquy
by representing that Lord Chancellor Sir Christopher
Hatton, so deservedly eminent for his dancing, was
" no lawyer ;" and for saying that Lord Bacon, the
greatest philosopher, and one of the finest writers
his country ever produced, was justly liable to the
charges of taking bribes from suitors on whose causes
he was to adjudicate, — of inflicting torture on a poor
parson whom he wished to hang as a traitor for
writing an unpublished and unpreached sermon, —
and of labouring to blacken the memory of the young
and chivalrous Earl of Essex, from whom he had
received such signal favours.
But, at all hazards, in relating actions and in
drawing characters, I shall still strive to discrimi-
nate between what is deserving of praise and of
censure.
I add, with perfect sincerity,
— hanc veniam petimusque damusque vicissim.
If my own humble career should ever become the
subject of biographical criticism, — with what measure
I mete, be it measured to me again. And this I say
not in arrogance or self-confidence, — but deeply con-
scious of deficiencies which may be imputed to me,
and of errors into which I have fallen, — yet hoping
that the slender merit may be allowed me of having
attempted well.
PREFACE TO THE THIRD VOLUME. VU
I beg leave to call in aid the admirable justifica-
tion of the discriminating and impartial biographer
by my friend Sir Francis Palgrave : — " He is in no
wise responsible for the defects of his personages,
still less is their vindication obligatory upon him.
This conventional etiquette of extenuation mars the
utility of historical biography by concealing the com-
pensations so mercifully granted in love, and the
admonitions given by vengeance. Why suppress the
lesson afforded by the depravity of the ' greatest,
brightest, meanest of mankind ;' he whose defile-
ments teach us that the most transcendent intel-
lectuality is consistent with the deepest turpitude ?
The labours of the panegyrists come after all to
naught. You are trying to fill a broken cistern.
You may cut a hole in the stuff, but you cannot
wash out the stain."
Before concluding I must renew the notice by
which I have derived many favours both from
strangers and from friends, — " I shall be most grateful
to all who will point out omissions to be supplied,
or mistakes to be corrected."
I have only further to express my satisfaction in
thinking that a heavy weight is now to be removed
from my conscience. So essential did I consider an
Index to be to every book, that I proposed to bring
a Bill into parliament to deprive an author who
* Hist, of Norm, and Eng., b. ii. p. 67*
Vlll PREFACE TO THE THIED VOLUME.
publishes a book without an Index of the privilege
of copyright ; and, moreover, to subject him, for his
offence, to a pecuniary penalty. Yet, from diffi-
culties started by my printers, my own books have
hitherto been without an Index. But I am happy
to announce that a learned friend at the bar, on
whose accuracy I can place entire reliance, has
kindly prepared a copious Index, which will be
appended to this work, and another for the new
stereotyped edition of the LIVES OF THE CHAN-
CELLORS.
Stratheden House, April 6£A, 1857.
CONTENTS
OF
THE THIRD VOLUME.
CHAPTER XLI.
LIFE OF LORD KENYON, FROM HIS BIRTH TILL HE WAS APPOINTED CHIEF
JUSTICE OF CHESTER.
Composition of this Memoir an unpleasant task for the biographer, Page 1.
Family of the Kenyons, 2. Birth of Lord Kenyon, 3. His defective educa-
tion, 3. He is apprenticed with an attorney, 3. His love of the desk, 4.
His attempt to rival the Welsh bards, 4. His disappointment in not being
taken into partnership with his master, 5. He is admitted a student at
the Middle Temple, 5. His misfortune in not being required to be initiated
in liberal studies, 6. His exclusive attention to law, 6. His dislike of the
theatre, 7. He writes reports of decisions of the Courts, 7. He is acquainted
with Home Tooke and Dunning, 7. His economical mode of dining, 8.
He is called to the bar, 8. His slow progress, 8. He fags for Dunning, 9.
He becomes a great case-answerer, 9. His merits as a draughtsman, 9.
He fags for Lord Chancellor Thurlow, 10. He is made Chief Justice of
Chester, 10.
CHAPTER XLII.
CONTINUATION OF THE LIFE OF LORD KENYON TILL HE WAS APPOINTED
MASTER OF THE ROLLS.
He is introduced into Parliament, 12. His impatience to meet a charge of
bribery, 12. He is counsel for the defendants in the prosecution for deposing
Lord Pigot, 12. How he came to be counsel with Erskine for Lord George
Gordon, 13. His successful cross-examination of a witness, 14. His mise-
rable speech to the jury, 14. Peril to the prisoner, 16. Glory of Erskine,
16. Kenyon Attorney-General to the Rockingham Administration, 17.
His altercation with Sir James Mansfield, ]8. His zeal against public
accountants explained, 18. He adheres to Lord Shelburne, 20. He is
turned out by the "Coalition," 21. His parliamentary conduct while in
X CONTENTS.
opposition, 21. Dismissal of the " Coalition Ministry," 22. Kenyon again
Attorney-General, 23. He renews his attack on public accountants, 23.
His conduct, as Chief Justice of Chester, in the Dean of St. Asaph's
case, 23.
CHAPTEK XLIII.
CONTINUATION OF THE LIFE OF LORD KENYON TILL HE WAS APPOINTED
CHIEF JUSTICE OF THE KING'S BENCH.
Kenyon is made Master of the Rolls, 26. His vote in the Westminster elec-
tion, 27. The bad advice he gave respecting the " Scrutiny," 27. Honour-
able conduct of Lord Eldon on this occasion, 28. Mr. Fox's censure of the
Master of the Rolls, 28. Kenyon is made a Baronet, 29. Sir Lloyd Kenyon
and the Rolliad, 29. Letter from Sir Lloyd Kenyon to the High Bailiff of
Westminster, 31. Kenyon as an Equity Judge, 32. Q. How far a covenant
to refer to arbitration may be pleaded in bar to a suit or action ? 34. Sir
Lloyd Kenyon's merits as an Equity Judge, 35. Resignation of Lord Mans-
field, 35. Sir Lloyd Kenyon appointed his successor, and raised to the
peerage, 36.
CHAPTER XLIV.
LORD KENYON AS CHIEF JUSTICE OF THE KING'S BENCH.
Unpopularity of the appointment, 37. Lord Kenyon takes his seat in the
House of Lords, 37. His speech on the insanity of George III., 38.' He
maintains that Mr. Hastings's impeachment had abated by the dissolution
of Parliament, 39. He opposes Mr. Fox's Libel Bill, 40. Questions pro-
posed by him for the opinion of the Judges, 40. Lord Stanhope's speech
to banter Lord Kenyon, 41. Lord Kenyon's answer, 41. Charge that he
made a pecuniary profit by the abuses in the King's Bench Prison, 42.
Lord Kenyon's improved tactics in self-defence, 43. His judicial character,
44. His Latin quotations, 44. His bad temper, 45. Account of his de-
meanour in Court by Espinasse, 45. His partialities and antipathies, 46.
George III.'s congratulation to him on the loss of his temper, 46. His
anxiety for the rights of the "legal estate," 47. His decision that no
action at law can be maintained for a legacy, 47. Rule that a married
woman shall never be permitted to sue or to be sued as a single woman,
47. His behaviour on the trial of Rex v. Stockdale, 48. His severe
sentences in prosecutions for alleged sedition, 49. Pasquinade against im-
prisonment for debt, 49. John Frost's case, 50. Rex v. Perry, 50. Per-
version of the clause in the Libel Bill enabling the Judge to give his
opinion to the Jury on matter of law, 51. Stone is tried for treason before
Lord Kenyon, 52. Trial of John Reeve for a libel on the House of Com-
mons, 53. Trial of Gilbert Wakefield, 54. Trial of the proprietor of the
Courier for a libel on the Emperor Paul, 56. Trial of Williams for pub-
lishing Paine's Age of Reason, 57. Lord Kenyon's display of his knowledge
of ecclesiastical history, 57. Trial of Hadfield, when the biographer first
saw Lord Kenyon, 57. Proof of the prisoner's insanity, 58. Lord Kenyon
interferes and puts an end to the trial, 58. Sound view of the question
how far mental disease exempts from criminal responsibility, 59. Benjamin
CONTENTS. XI
Flower's case, 60. Dialogue between Mr. Clifford and Lord Kenyon on
moving for a writ of Habeas Corpus, 60. Lord Kenyon's attack on Lord-
Treasurer Clifford and the ancient nobility, 61. Mr. Clifford's retaliation,
62. Lord Kenyon laid down the true constitutional doctrine since affirmed
by Act of Parliament respecting the power of the two Houses to print and
publish, 62. Rex i\ Earl of Abingdon : Peer not privileged to publish
speech delivered by him in the House of Peers, with a view to libel an
individual, 64. Doctrine of consequential damage, 65. Rescue of the
public from Surveyors, 65. Lord Kenyon's laudable zeal against manu-
facturers of slander, 66. Misled by his love for morality, 67. Lord Eldon's
protest against Lord Kenyon's ultraism, 68. Lord Kenyon's indignation
at being called a " legal monk," 68. By his hot temper, betrayed into the
toleration of insolence, 69. Lord Chief Justice Kenyon kicked by John
Home Tooke, 69. Erroneous decisions of Lord Kenyon, 74. Criminal
information for a jeu d'esprit, 74. Lord Kenyon overruled in Haycraft v.
Creasy, 75. Lord Kenyon's fury against forestallers and regraters, 77.
CHAPTER XLV.
CONCLUSION OF THE LIFE OF LORD KENYOX.
Lord Kenyon's career about to close, 81. Death of his eldest son, 81. Lord
Kenyon's last illness, 81. His death and burial, 81. His epitaph, 82.
Touching praise of him by his second son, 82. Character of Sir Leoline
Jenkins applied to him, 82. Discrimination required in his biographer, 82.
His popularity with common juries, 83. His ill-usage of attorneys, 83.
Ruin of Mr. Lawless, 84. Lord Kenyon serviceable in repressing petti-
fogging, 84. His kindness to students, 85. He is rebuked by Thurlow for
disparaging the Court of Chancery and solicitors, 85. The student's ink-
bottle and the Chief Justice's porcelain vase, 85. Lord Kenyon's eulogy on
George III., 86. His opinion given to George III. respecting the Catholic
question, 86. Lord Kenyon for a severe penal code, but not a " hanging
judge," 87. Specimen of Lord Kenyon's love of mixed metaphors, 88. Lord
Kenyon's Reports, 89. His facetiae, 89. His penurious mode of life, 89.
His villa at Richmond, 90. His dress, 91. His will directing his executors
to avoid the expense of a diphthong, 92, His descendants, 93.
CHAPTER XLVI.
LIFE OF LORD ELLENBOROUGII FROM HIS BIRTH TILL HIS MARRIAGE.
Feelings of the biographer in commencing the Life of Lord Ellenborough, 94.
His family, 94. His birth, 95. His education, 96. At the Charter-house,
96. At Cambridge, 96. His choice of a profession, 99. He studies the
law, 99. His diligence in a special pleader's office, 100. He practises as a
special pleader under the bar, 102. His success, 102. He is called to the
bar, 103. He joins the Northern Circuit, 104. His slow progress in
London, 106. His silk gown delayed by his supposed Whiggery, 106.
Law in domestic life, 107. His courtship, 107. His marriage, 108.
Xll CONTENTS.
CHAPTER XLVII.
CONTINUATION OF THE LIFE OF LORD ELLENBOROUGH TILL HE WAS APPOINTED
ATTORNEY-GENERAL.
He is retained as leading counsel for Warren Hastings, 109. His preparation
for the trial, 112. His first speech for Hastings, 112. His contests with
Burke and the other managers on questions of evidence, 114. Debi Sing's
case, 118. Law's opening of the defence, 123. His prooemium and perora-
tion on the Begum charge, 125. Peroration, 128. Conclusion of Hastings's
trial, 131. Authorship of the epigram on Burke, 132. Law's great advance
in business from his fame as counsel for Hastings, 132. He resents Lord
Kenyon's ill usage of him, 133. He is opposed to Erskine in Eex v.
Walker, 134. Prosecution of Bedhead Yorke, 135. Law's triumph over
Sheridan, 138. Law reconciled to the Tories, 141. His readiness to fight,
141.
CHAPTER XL VIII.
CONTINUATION OF THE LIFEOF LORD ELLENBOROUGH TILL HE WAS APPOINTED
LORD CHIEF JUSTICE.
He is made Attorney-General, 143. Rev. John Home Tooke, M.P., 145.
Governor Wall's Case, 147. Illness of Lord Kenyon, 152. Law is made
Chief Justice of England and a Peer, 153.
CHAPTER XLIX.
CONTINUATION OF THE LIFE OF LORD ELLENBOROUGH TILL HE BECAME A
CABINET MINISTER.
His qualifications as a Judge, 154. His puisnes, 155. His conduct as Chief
Justice, 155. Lord Ellenborough's decisions, 157. Validity of deeds of
separation, 158. Action for Crim. Con., notwithstanding deed of separa-
tion, 158. No implied warranty from high price of goods, 158. Liability
for publication of a libel in England by order of persons living out of
England, 159. English underwriters not liable for embargo put on by the
Government of the assured, 160. Validity of marriage of illegitimate minor,
160. Case of the HOTTENTOT VENUS, 161. Liability of captain of a ship of
war for damage done by her negligent management, 161. Lord Ellenborough
supposed to be influenced by his love of lobster sauce, 162. May the
executor of a lady maintain an action for breach of promise of marriage ?
163. May a trespass committed in fox-hunting be justified ? 164. Illegality
of cock-fighting, 165. Consuls not privileged as public ministers, 165. Privi-
lege of House of Commons to imprison for contempt, 166. Doubtful doc-
trine in Rex v. Creevey, 167. Freedom of literary criticism, 168. Trespass
by balloons considered, 169. Privilege of counsel to criminate an attorney,
170. Award of trial by battle on an appeal of murder, 170. Lord Ellen-
borough in the House of Lords, 171. His maiden speech, 172. His
exposure of the Athol job, 173. Right of the Crown to the military
services of all subjects, 175. His hostility to the Roman Catholics, 176.
Trial of Colonel Despard for treason, 177. Trial of Peltier for a libel on
Napoleon Buonaparte, 180.
CONTENTS. Xlll
CHAPTER L.
CONTINUATION OF THE LIFE OF LORD ELLENBOROUGH TILL THE TRIAL OF
LORD COCHRANE.
The Chief Justice a member of the Cabinet, 183. Impeachment of Lord
Melville, 192. Dismissal of " All the Talents," 193. Lord Ellenborough's
speech on the restoration of the Danish fleet, 195. His altercation with
Lord Stanhope, 195. Lord Ellenborough and the "DELICATE INVESTIGA-
TION," 205. Lord Ellenborough a member of the Queen's Council, as
Custodian of the King's person during the Regency, 213.
CHAPTER LI.
CONCLUSION OF THE LIFE OF LORD ELLENBOROUGH.
Trial of Lord Cochrane, 218. Trial of Dr. Watson for high treason, 220.
Lord Ellenborough's tour on the Continent, 222. His prayer when his
health and strength were declining, 223. Trial of William Hone, 223. He
is unable to go the Summer Circuit, 225. Lord Ellenborough resigns
his office, 228. Complimentary letter to him from the Prince Regent, 229.
His death, 230. His epitaph, 231. His character, 231. Lord Ellen-
borough's Act, 232. His approval of a severe penal code, 233. His dislike
of foreign laws, 236. His facetiae, 237. Lord Ellenborough in domestic
life, 242. His figure and manner, 243. Imitation of the Chief Justice by
Charles Mathews the comedian, 244. His portrait by Lawrence, 245. His
style of living, 246. His children, 246.
CHAPTER LIT.
LIFE OF LORD TENTERDEN, FROM HIS BIRTH TILL HIS ELEVATION TO THE
BENCH.
Disadvantages and advantages in the task of writing this Memoir, 248. Lord
Tenterden's father and mother, 249. Birth of Lord Tenterden, 250. His
early education, 250. Lord Tenterden at Canterbury school, 250. Danger
he ran in his fourteenth year, 252. Q. whether he was to be a hairdresser
or a Chief Justice ? 253. He is sent to the University, 254. He obtains a
scholarship at Corpus, 255. His diligence and good conduct, 257. His
prize poem, 258. His prize essay, 262. His Bachelor's degree, 265. His
horsemanship, 266. He is appointed College tutor, 266. His acquaint-
ance with Judge Buller, 266. He is entered of the Temple, 270. His
industry as a law student, 270. He practises as a pleader under the bar,
271. He is called to the bar, 272. His success on the Oxford circuit, 272.
The accident he met with, 273. His book on SHIPPING, 274. His business
at Guildhall, 275. His large income, 276. His incompetency as an advo-
cate, 276. His chief effort in oratory, 277. His conduct as Attorney-
General in the Grand Circuit Court, 278. His marriage, 279. His wife,
280. His desire to be made a Judge, 282. He is disappointed, 283.
XIV CONTENTS.
CHAPTER LIII.
CONTINUATION OF THE LIFE OF LORD TENTERDEN TILL HE WAS ELEVATED
TO THE PEERAGE.
He is a puisne in the Common Pleas, 284. He is transferred to the King's
Bench, 286. He becomes Chief Justice of England, 289. Extraordinary
excellence of the King's Bench as a Court of Justice while he presided
over it, 291. His great merit as a Judge, 292. His subjection under a
favourite counsel, 294. His discretion in avoiding disputes about juris-
diction, 297. His decisions. — The public have no common law right to
the use of the sea-shore for bathing, 298. No action lies for pirating an
obscene book, 301. His defence of the English doctrine of high-treason,
302. Libellous to say falsely that the Sovereign is afflicted with insanity,
303. Q. Whether the person who hires horses, with a driver, to draw his
carriage for a day, is liable for the negligence of the driver ? 305. The
Cato-street conspiracy, 306. Improper proceeding in trying to forbid the
publication of trials for treason till they are all concluded, 308. The Chief
Justice's dislike of technical niceties, 309. Doubtful decisions by him, 309.
His propensity to suspect fraud, 310. His doctrine about "care and
caution" in taking negotiable securities overruled, 311. Q. Whether it
would have been for his reputation that he had died a commoner ? 312.
CHAPTER LIV.
CONCLUSION OF THE LIFE OF LORD TENTERDEN.
His degradation to the peerage, 313. Ceremony of his taking his seat in the
House of Lords, 315. His maiden speech, 316. He opposes the repeal of
the Corporation and Test Acts, 318. He opposes the Bill for Catholic
Emancipation, 320. He opposes the Anatomy Bill, 323. He opposes the
Bill for taking away capital punishment for forgery, 324. His efforts for
amending the law, 324. His measure respecting prescription and tithes,
325. His sound views respecting parliamentary privilege, 328. He opposes
the Reform Bill, 328. His last speech in the House of Lords, with his
vow never again to enter the House if the Reform Bill passed, 330. His
health declines, 332. His last circuit, 333. The long vacation before his
death, 334. His last appearance in court, 334. His death, 335. His
funeral, 335. His epitaph, 335. His character and manners, 336. Com
pliment to him by the Lord Mayor of London, 337. His recollections of
Canterbury, 338. Character of Lord Tenterden by Lord Brougham, 339.
By Mr. Justice Talfourd, 341. His love of classical literature and talent
for making Latin verses, 343. Specimens of his Latin poems, 345. Present
representative of the Chief Justice, 348.
INDEX TO VOLUMES I., II., AND III Page 349
LIVES
OF THE
CHIEF JUSTICES OF ENGLAND.
CHAPTER, XLI.
LIFE OF LORD KENTON, FROM HIS BIRTH TILL HE WAS APPOINTED
CHIEF JUSTICE OF CHESTER.
I BEGIN this Memoir at a time when I have the near prospect CHAP,
of being myself a CHIEF JUSTICE, and when I may calculate . XLL .
upon being subjected in my turn to the criticism of some future Composi-
biographer.* On every account I wish to speak of Lord Chief Memoir an
Justice Kenyon in a spirit of moderation and indulgence. But unpleasant
P . , i . /> -i . i i • -, . . -, ,. task for the
I am afraid that my estimate of his character and judicial quali- biographer.
fications may call forth against me a charge of prejudice and
detraction. Although till raised to the bench he was considered
only " leguleius quidam, cautus et acutus" he was afterwards
celebrated by dependents and flatterers as a GREAT MAGIS-
TRATE, to be more honoured than the all-accomplished MANS-
FIELD. And from the stout resistance which then continued to
be offered in Westminster Hall to all attempts to relieve the
administration of justice from wretched technicalities, Lord Chief
Justice Kenyon was long hailed as the Restorer of the rigid
doctrines to be deduced from the Year Books.
He was indeed a man of wonderful quickness of perception,
of considerable intellectual nimbleness, of much energy of pur-
pose, and of unwearied industry ; — he became very familiarly
acquainted with the municipal law of this land ; — he was ever
anxious to decide impartially ; and he was exemplary in his respect
* 12 October, 1849. — It had then been intimated to me by the Prime Minister
that upon the resignation of Lord Denman, which, from his severe attack of
paralysis, was daily expected, I should be appointed liis successor.
VOL. III. B
KEIGN OF GEOKGE II.
CHAP, for morality and religion. But never having supplied by study
the defects of a very scanty education, he was unacquainted with
every portion of human knowledge except the corner of jurispru-
dence which he professionally cultivated ; — he had not even the
information generally picked up by the clever clerk of a country
attorney from bustling about in the world ; — of an arrogant turn
of mind, he despised whatever he did not know, and, without
ever doubting, bitterly condemned all opinions from which he
differed ; — giving way to the impulses of passion, he uncon-
sciously overstretched the severity of our criminal code ; — he
never sought to improve our judicial system either by legislation
or by forensic decision ; — and his habits of sordid parsimony
brought discredit on the high station which he filled. It is im-
possible, therefore, that in tracing his career I should be able
to abstain from sometimes expressing regret and censure. I
must thus incur the displeasure of some Englishmen who have
been accustomed blindly to admire him, and of the whole Welsh
nation, who [not from a penury of great men] worship him as an
idol, and prefer him to their countryman Chief Justice Vaughan,
who really was a consummate common-law judge, and to their
countryman Sir Leoline Jenkins, who was both a profound civilian
and a distinguished statesman. But as Lord Kenyon actually
was Chief Justice of England for fourteen years, — in the prosecu-
tion of my plan I must proceed, whatever perils I may encounter.
One might have expected that we should have had a Kenyon
pedigree extending to King ARTHUR, if not to ADAM ; but
although the family, when transplanted to the Principality, be-
came intensely Welsh, this event happened so recently as the
commencement of the last century. In the reign of Charles II.
the Kenyons were settled in Lancashire, one of them repre-
senting the borough of Clitheroe in the House of Com-
mons, and another being deputy-governor of the Isle of Man
under the Earl of Derby. The Chief Justice's grandfather,
a younger brother without portion or profession, married the
heiress of a Mr. Luke Lloyd, a yeoman, who had a small
estate at the Bryn, in the parish of Hanmer, in the county of
Flint ; and their son, following a good example, gained, by
marriage with the daughter of Mr. Robert Eddowes, the small
estate of Gredington, in the same parish. He was now ele-
Family
of the
Kenyons.
LIFE OF LORD KENYON. 3
vated to the rank of a country gentleman, and his name was CHAP.
inserted in the commission of the peace for Flintshire — a dis- « ,_ !— /
tinction of which Lord Kenyon used often to boast. The
squire, or squireen, cultivated his own land, and in point of
refinement was little above the low level of the surrounding
farmers. He had a numerous family, whom he found it a hard
matter to maintain and decently to educate.
His second son, who was to confer such honour upon Gred- Birth of
ington, was born there on the 5th of October, 1732, and, out Kelson,
of compliment to his maternal grandmother, was baptised by the
name of Lloyd. This boy, though rather of an irascible disposi-
tion, and accustomed, it is said, to beat his nurse with his little
fists when she crossed him, early displayed very quick parts, and
was very affectionate. Having been taught to read at a dame's-
school in the village, he was sent to the free grammar-school in
the neighbouring town of Ruthin, which had the reputation of
being the best classical foundation in the Principality. Here
he stayed long enough to acquire a little Latin in addition to
his Welsh and English ; but he never knew even the Greek
characters, and of no other language had he a smattering,
except some law phrases in Norman French. He never ad- His defec-
vanced farther in the abstract sciences than the " Rule of {-^ ^
Three ; " and he is said piously to have believed to his dying
day that the sun goes round the earth once every 24 hours.
Of four brothers he was declared to be the 'cutest, and he was He is ap-
dedicated to the law ; but there was then no notion of his ever {J^jJ*^
rising higher than being a Welsh attorney — advising the over- attorney,
seers of the adjoining parishes, and carrying on suits in the Court
of Quarter Sessions for the county of Flint. Accordingly, at the
age of 14, he was articled to Mr. Tomkinson, an attorney at
Nantwich ; and for five years he was taught to serve writs and
to engross deeds. " Gracious Heaven ! " exclaimed William
Cobbett, who preferred enlisting as a common soldier to such
occupations, " if I am doomed to be wretched, bury me beneath
Iceland snows, and let me feed on blubber ; stretch me under
the burning line, and deny me the propitious dews ; nay, if it
be thy will, suffocate me with the infected and pestilential air
of a democrat's club-room ; but save me, whatever you do, save
me from the desk of an attorney." Lord Somers and Lord
B2
4 KEIGN OF GEOEGE II.
C HAP. Macclesfield, although they submitted to the infliction, seemed to
' ^ T ' • have felt the same disgust ; and they could only get through
their years of apprenticeship by purchasing books of elegant
literature, and preparing themselves for the brilliant career to
His love of which they were destined. Young Kenyon was not only dili-
the desk. gent ^^ assiduous in doing his master's business, but was con-
tented and happy, and never wished for a more amusing pastime
than copying a long bill of costs, which gave the history of a
lawsuit from the "Instructions to prosecute" to entering "Satis-
faction on the Judgment Roll." He by no means confined
himself to the mere mechanical part of his trade ; on the con-
trary, he thumbed a book explaining the practice of the courts,
and he initiated himself in the mysteries of conveyancing, from
which the profits of a country attorney chiefly arise.
His attempt Once he was actually seduced to "pen a stanza." A brother
to rival the cierk of the name of Cadwallader, was an enthusiastic votary
Welsh ' f
bards. of the muses, and twitted him with his degeneracy from his
maternal ancestors, who had listened with rapture
" To high-born Hoel's harp and soft Llewellyn's lay."
The blood of the Lloyds was warmed in his veins, and he
declared that although he felt he could not equal Cadwallo,
Urien, and Modred, who, he was told, made huge Plinlimmon
bow his cloud-topped head, he should show that at least he had
a Welsh heart. He took for his subject " WYNNSTAY," the seat
of Sir Watkin Williams Wynn, considered in North Wales as
the representative of the Welsh Princes — and thus he sung : —
" There WATKIN stood firm to Britannia's cause,
Guard of her ancient manners and her laws.
Oh, great, good man ! borne on the wings of fame,
Far distant ages shall revere thy name ;
While Clwyd's streams shall lave the verdant meads,
And Snowdon's mountains raise their lofty heads ;
While goats shall o'er thy hills, O Cambria, stray,
And day succeed to night, and night to day,
So long thy praise, O WILLIAMS, shall remain
Unsullied, free from dark oblivion's chain."
He was himself so much pleased with this composition that
he sent it to Gredington, where it was loudly applauded,
although there was some apprehension lest, " his parents' wishes
doomed to cross," he might be led astray from his professional
pursuits ; but when, encouraged by this approbation, he showed
LIFE OF LORD KENYON.
the poem to his comrades in the office at Nantwich, he was for CHAP.
ever cured of his poetical propensity, for it was received with '
inextinguishable laughter. Long did "Clwyd's streams" re-
sound in his ears, and a wicked wag reported that the original
edition contained the couplet : —
" While cheese shall cheer the Cambro-Briton's sight,
And carw dha * shall prove his chief delight."
Kenyon never rhymed more, and it is "believed that he never
afterwards read a line of poetry during his whole life, except the
metrical translation of the Psalms of David when he was at church.
By his steadiness, intelligence, and uniform good conduct, he
was deservedly a great favourite with his master, and he fondly
hoped that, to crown his ambition, he might be taken into taken int»
partnership by this topping practitioner, and eventually succeed with his
him. A negotiation for this purpose was actually opened, but master-
Tomkinson behaved ungenerously, — demanding either a large
premium, which the Kenyons could not afford to pay, — or in-
sisting on the young man being contented with a very small share
of the profits, which would not have yielded him an income equal
to that of a managing clerk.
It so happened that at this time his elder brother, then A.D. 1750.
studying at St. John's College, Cambridge, died suddenly, and
it was thought that Lloyd, now heir to the small family estate,
might aspire to the superior grade of the profession of the law.
He himself would still have been satisfied with settling on his
own account as an attorney at Ruthin, Denbigh, or any neigh-
bouring town, where he would have been sure of soon getting
into reputable practice by his own merit and his respectable
connections, — but he very submissively took the advice that was He is ad-
offered to him, and on the 7th day of November, 1750, he was
admitted a student at the Middle Temple.t Happy had it the Middle
Temple.
* " Good ale." The Welsh say that cervisia is derived from carw.
f " Die 7 Novembris 1750.
" Mar Lloyd Kenyon films et Hseres apparens Lloyd Kenyon de Gredington
in comitatu Flint in principalitate Walliso armigeri admissus est in Societatem
Medij Templi London specialiter.
" Et dat. pro ffine .... 4 0 0 "
Examined copy from the books of the Middle Temple. In the Lives of Lord
Kenyon hitherto published, it is said that his removal to London and entrance
at the Middle Temple did not take place till 1755, although his printed Keports
of Cases decided in the Courts of Chancery and King's Bench begin in 1753.
REIGN OF GEORGE II.
CHAP.
XLI.
His mis-
fortune in
not being
required to
be initiated
in liberal
studies.
His exclu-
sive atten-
tion to law.
been for his fame and for the dignified administration of justice,
if he had now been transferred to a university, where his manners
might have been polished, his mind might have been liberalised,
and he might have acquired the moderate portion of knowledge
expected in an English gentleman.
Surely before students are entered at the Inns of Court there
should be a preliminary examination to know whether they have
acquired the elements of a liberal education. Such a regula-
tion could not be complained of, like the exclusion of all who
could not produce a certificate from the Heralds' College of
gentle birth. Leaving a free course to merit emerging from
obscurity, it would guard the profession of the law from the
intrusion of those who bring discredit upon it by their ignorance,
and would protect the administration of justice from being
perverted by vulgar prejudices haunting the minds of those
placed in high judicial stations. Kenyon, by a little pre-
liminary training at this period of his life, might have been
taught to correct or to suppress his bad Latin, and might have
escaped the peril which tarnished his judicial reputation, when
with furious zeal he thought he was serving the public by laying
down for law that a merchant was guilty of a misdemeanor by
purchasing commodities with the intent to sell them again at a
profit.
But he was at once transferred from his desk in his master's
office at Nantwich to a very small set of chambers on the
fourth story in Brick-court, Middle Temple Lane. To the
few books which he brought with him from the country, were
now added Coke upon Littleton, Rolle's Abridgment, and Shep-
pard's Touchstone. But neither by the advice of others, nor
spontaneously, did he become acquainted with any author
qualified to enlarge his understanding or to refine his taste.
He had no suspicion that his education had been defective, nor
the slightest desire to take any knowledge except law for his
province.
Not having a university degree, it was necessary, according
to the regulations then in force, that he should be five years a
student before he could be called to the bar. During this long
period he gave proof of unwearied diligence and rigid self-
denial. He pored over his law books day and night. Being
LIFE OF LORD KENYON.
once treated to the play, he declared sincerely that he found no
pleasure in the performance, and it is said that he never was
again within the walls of a theatre till, having reached the
dignity of Chief Justice, he was prevailed upon to visit Drury theatre.
Lane, that he might see the famous melodrame PIZARRO, —
when, falling asleep in the middle of the electrifying declama-
tion against " avarice and ambition," Sheridan, the mortified
author, vengefully exclaimed, "Alas! poor man, he fancies
himself on the bench."
While yet a student at law, young Kenyon would indulge
in the amusement of going to the office of Mr. Seckerson,
an attorney, who was the town agent of his old master at
Nantwich, reading the instructions for conducting pending
suits, and seeing how business was prepared for the Courts
at Westminster. By-and-bye he diligently attended these He writes
Courts himself, and took copious notes of the arguments at Seasons of
the bar and of the judgments. His notes he methodised in the the Courts-
evening into respectable reports, which afterwards were very
useful to him, and of which two volumes, containing cases from
1753 to 1759, were published in the year 1819 by his sons. I
cannot much praise the style of the reporter, for he was careless
about grammar, and he had no notion of elegant composition ;
but he shows that he perfectly well understood the points which
were discussed and decided.
His finances being very limited, he kept account books for
many years containing entries of every single farthing which
he expended. These are still preserved, and contain mysterious
abbreviated items, which have given rise to much speculation
and laughter, but I believe that they may be explained without
the slightest slur being cast upon his ever exemplary morals.
Although the companions in whose society he chiefly delighted ne i
were those whom he met at Mr. Seckerson' s, he made acquaint-
ance in the Middle Temple Hall with some men who after- Tookeand
wards gained great distinction. Two of these were John
Home Tooke and Dunning, who were allied to him by penury
as well as genius. " They used generally in vacation time to
dine together at a small eating-house, near Chancery Lane,
where their meal was supplied to them at the charge of l\d.
8 REIGN OF GEORGE II.
CHAP, a-head." * Tooke, in giving an account of these repasts many
' r— ' years after, used to say, " Dunning and myself were generous,
His econo- for we prave the girl who waited on us a penny a-piece, but
mical mode Tr 6 . . ,, , „ j j t.
of dining. Kenyon, who always knew the value ot money, rewarded her
with a halfpenny and sometimes with a promise" Kenyon,
when elevated to the Bench, without owning to the manner in
which he was supposed to have treated the maid, would very
manfully point out the shop where he had been accustomed to
dine so economically ; yet it is said that he displayed evident
signs of wounded pride when under a subpoena he was obliged
in the Court of Common Pleas to prove the execution of a
deed which he had attested while clerk to Mr. Tomkinson, at
Nantwich.
He is called Having eaten the requisite number of dinners in the Middle
Temple hall, on the 7th of February, 1756, he was called to the
bar. But for many years he remained poor and obscure. He
had no captivating powers to bring him suddenly forward, and
it is recorded to his honour that he never descended to any mean
arts with a view to obtain business. For a long time he had
absolutely nothing to do in Westminster Hall. He laid him-
self out for conveyancing, and his Welsh connections gave him
a little start in this line. His father furnished him with a
Welsh pony, on which he rode the North Welsh Circuit, pick-
ing up a few half-guineas. He likewise attended the assizes at
Shrewsbury and one or two other towns on the Oxford Circuit ;
but these were only a source of expense to him, which he could
very ill afford. His resolution, however, was undaunted, and he
felt that within him which assured him of ultimate success.
His slow He never gained applause by any speech to a jury or even
by any brilliant argument to the court ; he was not only totally
devoid of oratory, but he had no great power of reasoning ;
although he knew with intuitive quickness what was the right
conclusion upon any legal question, he had not the art of
showing how according to the rules of dialectics this conclusion
was to be reached. After he had been ten years at the bar, it
is said that he was desirous of quitting the profession of the
law and taking orders, but that he could not obtain a pre-
* Steevens's Memoirs of Home Tooke.
LIFE OF LOKD KENYON. 9
sentation to the small living of Hanmer, in the county of CHAP.
Flint, to which he aspired. * - <—>
His extraordinary merits as a lawyer were first discovered
and developed, not by the public, nor by the judges, nor by the
attorneys, but by a contemporary barrister. Dunning, instead
of continuing to dine on cow-heel, shortly after being called
to the bar was maldng thousands a year, and had obtained a
seat in parliament. He had many more briefs than he could
read, and many more cases than he could answer. Kenyon He fogs for
became his fag, or in legal language his " devil," — and thus Duur
began the career which led to the Chief Justiceship. With
most wonderful celerity he picked out the important facts
and points of law which lay buried in immense masses of
papers, and enabled the popular leader to conduct a cause
almost without trouble as well as if he had been studying it for
days together, — and many hundreds of opinions which Dunning
had never read were copied from Kenyon's MS. by Dunning's
clerk and signed by Dunning's hand. The only return which
Kenyon received was a frank when writing to his relations, and
this courtesy had once nearly led to a fatal quarrel between the
two friends, for to the direction of a letter addressed to " Gred-
ington, Flintshire," Dunning waggishly added, " North Wales,
near Chester." This insult to the Principality stirred up the
indignation of the fiery Welshman, who exclaimed, " Take back
your frank, Sir — I shall never ask you for another :" and he
was flying away in a towering passion, but was at last appeased.
It gradually oozed out in the profession that Dunning's He becomes
. . J . „ a great case-
Opinions were written by Kenyon, and the attorneys thought answerer.
they might as well go at once to the fountain-head, where they
might have the same supply of pure law at much less cost.
Cases with low fees came in vast numbers to Kenyon, and so
industrious and ready was he that they were all answered in a
day or two after they were left at his chambers. He thus be-
came a very noted case-answerer, and his business in the Court
of Chancery gradually increased. One serious obstacle which His merits
he had to surmount was the brevity with which he drew deeds
as well as bills and answers, for the profits of the attorneys un-
fortunately being in proportion to the length of the papers
which pass through their hands, they are inclined to employ the
10
CHAP.
XLT.
A.D. 1770.
Ho fags
for Lord
Chancellor
Thurlow.
A.D. 1780.
Ho is made
Chief
Justice of
Chester.
EEIGN OF GEOKGE III.
most lengthy, rather than the most skilful ; draughtsman. But
Kenyon refused to introduce any unnecessary recital, avoided
tautology as much as possible, and tried to make the language
he employed approximate to that of common sense.
Still, however, he seemed destined to be eminent in his day
only in that class of chamber-counsel who make a comfortable sub-
sistence by their labour, and, like other tradesmen, are forgotten
as soon as they die. Dunning, after having been a short time
Solicitor-General, having resumed his stuff gown and gone into
hopeless opposition, could not help him on, and without a
powerful patron the honours of the profession were not within
his reach.
But his fortune was made by the elevation of Thurlow to the
woolsack. This man of extraordinary capacity and extraor-
dinary idleness, when called to sit in the Court of Chancery
earnestly desired to decide properly, and even coveted the
reputation of a great judge, but would by no means submit to
the drudgery necessary for gaining his object, and as soon as
he threw off his great wig he mixed in convivial society or read
a magazine. To look into the authorities cited before him in
argument, and to prepare notes for his judgments, Hargrave,
the learned editor of Coke upon Littleton, was employed, but
he was so slow and dilatory that the lion in a rage was some-
times inclined to devour his jackal. Kenyon, sitting in court
with a very moderate share of employment, having once or
twice, as amicus curies, very opportunely referred him to a
statute or a decision, was called in to assist him in private, and
now the delighted Chancellor had in his service the quickest,
instead of the most languid, of journeymen. He even took a
personal liking for Kenyon, although in grasp of intellect, in
literary acquirements, in habits of industry, in morals, and in
every respect, a striking contrast to himself. Laughing at his
country, calling him by no other name than Taffy, holding up
to ridicule his peculiarities, but knowing him to be a consum-
mate English lawyer, he resolved to reward him by raising him
to the bench.
A legal dignity falling in, Serjeant Davenport, who had
strong claims on the Government and had met with many
prior disappointments, thus applied for it, thinking that by his
LIFE OF LORD KENYON. 11
laconic style he might adapt himself to Thurlow's humour: CHAP.
" The Chief Justiceship of Chester is vacant — am I to have
it ? " The reply was in the same taste : " No, by G — d !
Kenyon shall have it."
On Kenyon it was spontaneously bestowed, to his infinite
gratification, for it left him still his lucrative practice at the
bar ; and not only had he a handsome salary with his new
office, but Flint, his native county, was within his jurisdiction,
and in the presence of his schoolfellows he was to act the part
of a Chief Justice
12
REIGN OF GEOEGE III.
CHAPTER XLIL
CHAP.
XLIL
He is intro-
duced into
Parliament.
23rd Jan.
1781.
His im-
patience to
meet a
charge of
bribery.
lie is coun-
sel for the
defendants
in the pro-
secution for
deposing
Lord I'igot.
CONTINUATION OF THE LIFE OF LORD KENYON TILL HE WAS APPOINTED
MASTER OF THE ROLLS.
IT has been said that we get on in the world more by
receiving favours than by conferring them,' and Thurlow was
only incited by the snarling criticisms upon the appointment of
the new Chief Justice of Chester to push on his protege to
higher elevation. Accordingly, on the dissolution of Parliament,
which took place in the autumn of the year 1780, Thurlow
negotiated Kenyon's return to the House of Commons for the
now disfranchised borough of Hindon in the county of Wilts.
There was a show of opposition at the election, and a petition
was presented against the return, charging Mr. Kenyon with
bribery. This called forth the only speech which he delivered,
till, having long given silent votes, he had the extraordinary
luck to be appointed Attorney-General. A motion having
been made to give precedence out of its turn to the Committee
to try the merits of the election for the city of Coventry, " Mr.
Lloyd Kenyon said he stood in the predicament of a member
petitioned against on the heavy charge of bribery — that his
moral character was bleeding afresh every hour the trial of the
petition against him was delayed — that, in obedience to the
regulations of the House, he had submitted, on the principle of
general convenience, to the day on which the Committee to try
the petition was fixed to be balloted for — that he had as
much right to acceleration and preference as another ; and, if
another was to be favoured, he should consider it an indication
that hostilities were determined against him, and a grievous
injury."
Kenyon's reputation was now very high as a lawyer. By
his fee-books still extant, it appears that he made above
30007. a year by answering cases. His opinions being clear,
decisive, sound, and practical, gave great satisfaction, although
he seldom assigned any reasons or cited any authorities. But
LIFE OF LOKD KENYON. 13
he never acquired forensic reputation, and all that could be CHAP.
said for him as a counsel in court was, that he had uniformly \ - <— /
read his brief, and was prepared to battle with force, if not
with elegance, all the points which could arise in the course
of the cause. There are only two criminal trials in which
he is stated ever to have been engaged. The first was the A.D. 1779.
prosecution of Mr. Stratton and his associates for deposing
Lord Pigot, the Governor of Madras. Along with Erskine
and other juniors, he assisted Dunning, who led for the
defendants ; but he only cross-examined a witness, without
addressing the jury, and when, after a conviction, the judgment
of the Court was prayed, he waived his right of speaking in
mitigation of punishment.* Yet we are afterwards surprised Feb. 1781.
all of a sudden to find him leading counsel in a very celebrated
trial which required a display of the highest powers of elo-
quence. However paradoxical it may appear, the dry, tech-
nical lawyer, who could hardly construct a sentence of English
grammatically, was very skilfully selected on this occasion.
Lord George Gordon was about to be tried for his life on a How he
charge of high treason, because the mob which he headed while °
they strove tumultuously to present a petition to the House of with
Commons against Popery, had afterwards, when he had left for Lord
them, committed dreadful outrages in the metropolis, for which
many of the chief malefactors had been very properly hanged.
There was a strong prejudice against him on account of his
imprudent speeches, which had remotely, though unintentionally,
led to such disastrous consequences, and it was generally ex-
pected that he would be found guilty. He and his friends
placed their only hope upon Erskine, who had been lately called
to the bar, and had shown powers as an advocate unexampled
in our juridical annals. But who was to be the colleague of this
extraordinary youth ? The statute of William III., to regu-
late trials for high treason, allowed a full defence by two
counsel. No one junior to Erskine could be trusted, and his
efforts would have been controlled and cramped by a senior
of any reputation. Kenyon was therefore fixed upon. He was
known to be a consummate lawyer, it was believed he would do
no harm, and he was expected to act as a foil to Erskine,
* 21 Stafc Tr. 1045.
14 REIGN OF GEOBGE -III.
CHAP. who was to come after him, and was sure to make up for all his
\ * v ' / deficiencies.
A;D. 1781. Though at first strongly opposed, from the dread that the
jury might definitively make up their minds before Erskine could
be heard, — the hazardous plan was adopted, and it succeeded
most admirably.
His sue- Kenyon, having practised at Quarter Sessions, had some
cmss-exa- notion of cross-examination, and he thus dealt rather smartly with
mination of a wJtness who had sworn to seeing a flag, with an exciting Pro-
a witness. . ° ,1.11 .
testant motto upon it, carried in the mob which the noble prisoner
led on : Q. " Can you describe the dress of this man, who, you
say, you saw carrying the flag ? " A. "I cannot charge my
memory ; it was a dress not worth minding — a very common
dress."— Q. "Had he his own hair, or a wig?" A. "If I
recollect right, he had black hair ; shortish hair, I think." —
Q. " Was there anything remarkable about his hair ? " A.
" No ; I do not remember anything remarkable ; he was a
coarse-looking man ; he appeared to me like a brewer's ser-
vant in his best clothes." — Q. " How do you know a brewer's
servant in his best clothes from another man?" A. "It is
out of my power to describe him better than I do. He ap-
peared to me to be such." — Q. " I ask you, by what means do
you distinguish a brewer's servant from another man ? " A.
" There is something in a brewer's servant different from other
men." — Q. " Well, then, you can tell us how you distinguish a
brewer's servant from any other trade?" A. "I think a
brewer's servant's breeches, clothes, and stockings have some-
thing very distinguishing." — Q. " Tell me what in his breeches
and the cut of his coat and stockings it was by which you distin-
guished him." A. "I cannot swear to any particular mark."
Thus, by a little bullying and browbeating, the witness was
thrown into confusion ; lind although all that he swore about
the flag was correctly true, his evidence was discredited.
His But when Mr. Kenyon came to address the jury, he performed
s^ecifto so miscrably that the prosecution resembled an undefended cause,
the jury. and poor Lord George afterwards declared that " he gave himself
up for lost." To exhibit the most favourable specimen of this
oration, I select the carefully premeditated proemium as it ap-
pears in the State Trials, after being corrected by the orator : —
LIFE OF LOED KEN YON. 15
" Gentlemen of the Jury, — The counsel for the prosecution having C HAP.
stopped in this stage of the business, giving as a reason for not >
producing more witnesses, that they are afraid of tiring out the A.D. 1781.
patience of the Court and the jury, it is the misfortune of the
prisoner to make his defence at that period of the day when the
attention of the Court and the jury must be, in some measure, ex-
hausted. There are other difficulties which he also labours under ;
for, upon this occasion, I, who am assigned, by the Court, to be one
of his counsel, confess myself to be a person very little versed in
the criminal courts ; I never yet stood as a counsel for a person who
had so great a stake put in hazard ; and therefore, gentlemen, in ad-
dressing you for him, I stand as a person in very considerable agitation
of mind for the consequences which may happen through my defects.
" When persons are accused of actions of great enormity, one is
apt to look round about one to see what the motives were that could
induce the parties so to act. The prisoner at the bar stands before
you a member of one of the most considerable families in this
country. At the time when this conduct is imputed to him, he was
a member of the Legislature ; he stood in a situation which he was
not likely to better by throwing the country into convulsions. A
person that stood in the situation he stood in, could not make his
prospect better than in seeing the affairs of the country conducted
under legal government ; and if he thought any inroads had been
made upon those laws which the wisdom of our ancestors had enacted,
it was his business to bring about the repeal of those laws, to redress
those grievances, by proper legal means, and not by causing a revolt
in this country. This being the case, and as his conduct may be
imputed to good or bad motives, it seems reasonable, and humanity
will induce you, to impute it to proper rather than improper motives,
the noble prisoner being, as I have said, a man standing in a situa-
tion who had everything to expect so long as law prevailed, but
nothing to expect when anarchy was substituted in the place of law.
" The crime imputed to the noble prisoner is, that he being a liege
subject of the King, had levied war against the King. The crime
is imputed to him under an Act of Parliament enacted for the wisest
purpose, that crimes of this very enormous nature should not depend
upon loose construction ; but that men, in their journey through
life, might, by looking upon the statute, see what the plan of their
duty was, might see what the rocks were upon which they were not
to run, and might see, in the plain words of the statute, what they
were to do, and what to avoid. The Attorney-General has told
you, very properly, that the crime which he meant to impute to him
was not a crime against the person of the King, but that it was a
constructive treason. Gentlemen, I have" only to lament that there
16
KEIGN OF GEOKGE III.
CHAP.
XLII.
A.D. 1781.
Peril to the
prisoner.
Glory of
Erskine.
is such a phrase in the law as constructive treason. At the time
when the law was enacted, I verily believe the Legislature had it
not in their contemplation that the words constructive treason would
find their way into the Courts at Westminster ; but however, so it
seems the law is ; for so it seems, upon some certain occasions,
Judges have decided."
He afterwards handled all the witnesses seriatim in the order
in which they were called, reading their evidence from the notes
on his brief, and making trivial comments upon them. At last
he arrived at his peroration : " I know that I speak to men of
character and station in the world, and of good sense, and who
know that their duty is to do justice ; and know at the same
time that every favourable construction is to be made in behalf
of the prisoner. That has always been the language of courts,
and will be the language of this court this day."
If the trial had here concluded, the jury, without leaving the
court, would inevitably have found a verdict of guilty ; but
Erskine followed and restored the fortune of the day. It was
impossible for him, with a grave face, to praise the eloquence of
the discourse which had just been delivered ; but with the utmost
courtesy and generosity he sought to cover the failure of his leader,
complimenting him upon his powers of cross-examination, and
dwelling particularly upon the " breeches of the brewer's ser-
vant." After a most masterly exposition of the law of high
treason, he clearly proved that, even giving credit to all that
had been sworn on behalf of the Crown, the prisoner had
neither imagined the King's death, nor levied war, within the
meaning of the statute of Edward III. by which treasons were
defined. So there was a glorious acquittal. *
It should be related to Kenyon's credit that on this occasion
he was entirely free from jealousy and envy, although so out-
shone. On the contrary, he felt nothing towards his junior but
admiration and gratitude, which continued through life, notwith-
standing their political differences — insomuch that he would
hardly believe the stories which were afterwards told of Erskine's
immoralities ; and when some things were related which could
not be denied, he would exclaim, " Spots on the sun — only spots
on the sun!"
* 21 St. Tr. 485— G52.
LIFE OF LORD KENYON. 17
Mr. Kenyon's subsequent forensic displays were confined to CHAP.
arguing in the Court of Chancery such matters as the construe- * - <—^->
tion of a will or exceptions to the Master's report, But we
must now attend to him as a politician. In the House of Com-
mons he steadily voted with Lord North's Government till the
critical division which put an end to it. On this occasion he
absented himself on the plea of indisposition.*
Thurlow continuing, to the astonishment of all mankind, to 8th March,
hold the Great Seal under Lord Buckingham and the Whigs, ^non At-
now contrived to have his old " devil " Kenyon placed in the tomey-Ge-
situation of Attorney-General. This appointment caused con-
siderable discontent, for the law officers of the Crown had long ha™ ^dmi
' to lustration.
been men of liberal acquirements and of great weight in the
House of Commons. Undervaluing his own qualifications,
Thurlow observed that the chief object in such an appointment
was to have a sound lawyer, who could give good advice to the
Government, and that Kenyon was allowed on all hands to be
more familiarly acquainted with every branch of the law than
any of his competitors, — that the silence which he had hitherto
observed in the House of Commons argued discretion, — and that
his zealous official services henceforth would be found of high
value. The objection that this favourite had been strenuous for
carrying on the war with America and against conciliation could
not be decently urged, as the patron was in the same predicament.
So Lord North's Attorney-General Wallace was turned out, and
Kenyon, who had copied his principles and his conduct, suc-
ceeded him — to the peculiar chagrin of Whig barristers and
considerably to the detriment of the new Whig Government.
Dunning, become Lord Ashburton, Chancellor of the Duchy of
Lancaster, and a member of Lord Bockingham's Cabinet, was
suspected, in spite of repeated denials, of favouring the elevation
of a man of notoriously anti-WTiiggish principles, in consider-
ation of the valuable assistance formerly rendered to himself in
answering cases and noting briefs.
The new Attorney-General was a little puzzled by some of
the questions on international law which arose from the " armed
neutrality" of the Northern powers, entered into with a view to
encroach on our belligerent maritime rights; but by industry
* 22 Parl. Hist. 1208.
VOL. III. C
18 REIGN OF GEORGE III.
CHAP, he got up pretty well the learning about blockades, contraband
. • of war, and free bottoms making free goods, and on all subjects
A.D. 1782. Of municipal law he advised the Government more promptly,
more decisively, and more correctly than any law officer of the
Crown had done for many years.
loth May. He first opened his mouth in the House of Commons, after
tion wuh°a" being appointed Attorney-General, in an altercation with Mans-
er James fig]^ the late Solicitor-General, who, in the debate on Lord
Shelburne's measure for arming the people, had represented the
volunteers in Ireland as having constituted themselves the govern-
ment of the country, and although several times called to order,
had insisted on going on in the same strain. At last " Mr.
Attorney-General Kenyon expressed his surprise that his learned
friend should have put the House under the necessity of calling
him to order three different times, and as his speech had a
dangerous tendency if persevered in, he must be called to order
again." Mansfield declared himself hurt by the Attorney-
General's speech, which he said could not be calculated for any
good purpose, and no part of his past life would justify the impu-
tation that he would intentionally make any observation which
could be injurious to the country. Kenyon : "I did not speak
in the most measured terms, because I saw my learned friend on
the brink of a precipice, and I was eager to save him from
falling." Mansfield declared himself quite satisfied with this
explanation, and their friendship continued without abatement.*
His zeal Mr. Attorney-General, till ejected by the Coalition Ministry,
Tib'nf ac- sP°^e only on one subject — the recovering of balances due to the
comitants Exchequer from those who had held the office of Paymaster-
General to the Forces ; and here he displayed a zeal which was
supposed to be a little heated by his desire to please the Chan-
cellor, by his preference to the Shelburne section of the Cabinet,
istii June, and by his antipathy to the family of Fox. He astonished the
House by his observations on certain resolutions moved by Lord
John Cavendish, the Chancellor of the Exchequer, which had for
their object prospectively to put the Paymaster of the Forces and
other public accountants on fixed salaries, and to prevent them
from retaining any public money in their hands to be employed
for their own profit. Mr. Attorney-General Kenyon said—
* 23 Tarl. Hist, 9.
LIFE OF LOKD KENYON. 19
" He would not oppose the resolutions, but he would have it under- C HAP.
stood that he did not preclude himself in the smallest degree from a > " T ' .
full right and liberty to discuss in a court of justice the question A<Dt 1732.
' whether the public might not call upon the great servants of the
public to account for the great emoluments they had made by means
of the public money ? ' He spoke not from any ill will to any man
alive, but solely from a sense of duty in an office which he had been
unexpectedly, as he was undeservedly, called to fill. He did not
know how long he might remain in it ; but if he should be dismissed
from it, he should return to much domestic happiness, which he had
enjoyed before he was called into public life: but while he remained
in it he was determined to do his duty."
Mr. Secretary Fox: "I cannot join with my learned friend, His
Majesty's Attorney-General, in the observations he has thrown out.
I contend, as I have often done before, that when a balance of public
money lies in the hands of a public accountant, all the public have a
right to expect from him is, that whenever the money shall be called
for, it shall be forthcoming. To future regulations on the subject I
offer no objection. I wish that my learned friend would leave some
room for prescription and draw some line beyond which his inquiry
shall not go, otherwise it will be in the power of the King's Attorney-
General to keep in constant alarm and the worst of slavery all those
who have ever filled any public office and their descendants. It may
happen that a public accountant may have acquired a great fortune
by a fair and honourable use of public money, and his descendants
may, by their folly and imprudence, have completely dissipated and
destroyed it : are these descendants to be called upon to account for
the profits made by their ancestor ? Let the line be drawn, and I
shall be satisfied."
Nevertheless, in the course of a few days, Mr. Attorney- June 25.
General, disclaiming all personal motives, moved certain resolu-
tions, which would have made Mr. Fox, who had not a shilling
in the world, although now Secretary-of-State and aspiring to
the Premiership, liable for interest on all the balances of public
money which had ever been in his father's hands, — on the alleged
ground that as the principal sums belonged to the public, the
public was entitled to all the profit made of them, — observing
that, although he now acted without communication or concert
with any members of the Government, he had consulted lawyers
of high eminence in Westminster Hall, who unanimously agreed
with him that the rule by which trustees were bound in a court
of equity applied to public accountants.
c 2
20
KEIGN OF GEORGE III.
CHAP.
XLII.
A.D. 1782.
1st July.
He adheres
to Lord
Shelburne.
Mr. Fox : " It might have been as well if my honourable and
learned friend had consulted some members of the Government before,
as organ of the Government, he moved these resolutions. He says
that lawyers whom he has consulted are of opinion that the public
have a right to claim all the profits of their own money in the hands
of a public accountant. This may be law, but it does not appear to
be common sense, and therefore I suspect that it is not Jaw, for the
law of England and common sense are seldom at variance. The
comparison between a public accountant and a trustee will not hold
good. A guardian, for instance, having his ward's money in his
hands, may and ought to put it in a state of lucration. If he vests
it in the public funds, and they rapidly fall, the loss falls on the
minor, not on the guardian. But what would be said, under similar
circumstances, to a public accountant by the Treasury ? ' We have
nothing to do with your losses, you must bear them yourself — it was
not by our direction that you put out the public money to interest/
To call for interest from a public accountant would be to justify him
in placing the public money out at interest, and to make the public
liable for the losses which might ensue."
Mr. Wallace, the ex- Attorney-General, said that whatever
others in Westminster Hall might think, he felt no difficulty in
declaring that the public had no such right, and he believed that
he should not be found singular among the gentlemen of the long
robe. It was a clear maxim in law that whatever party received the
profit, the same party ought to bear such losses as the property
sustained ; but all were agreed that the public had nothing to
do with any loss arising from the use of public money, and that
a public accountant being liable for the whole of his balances,
the last shilling of his property, and his liberty too, must answer
for any deficiency.
The Attorney-General took fire at the idea of imputing to
him any thoughts of personality or malevolence in his conduct
on that day ; he hoped the gentleman did not look into his own
heart to find out the motives by which he was actuated that day.
Some of the Attorney-General's resolutions were withdrawn
and the others were negatived.*
On the death of Lord Rockingham and the resignation of the
Foxite Whigs, Kenyon continued in office under Lord Shel-
burne, but took no part in the debates on the treaty of peace,
23 Parl. Hist. 115—134.
LIFE OF LORD KENYON. 21
or on any other subject during this administration. The CHAP.
" COALITION " having stormed the Royal closet, he was replaced * Y >
by his rival Mr. Wallace, and he enlisted himself under Mr. A-D- !783.
Pitt, without adopting any of the liberal principles which illus- He is turned
trated the early career of this most distinguished statesman. °u* b7 the
The ex- Attorney-General led the opposition to the first mea- .tion."
sure of the new Government — a Bill to facilitate the collection
of the malt duties — and he acted as teller on the division, but
found himself in a minority of 47 to 12.*
He returned to the attack upon Mr. Fox by asking a question June 23.
of the Government, " whether there was any intention of reviving
a Bill which he had filed in the Exchequer against Mr. Powell, conduct
the executor of the late Lord Holland, and which had abated oppositio
by the death of that gentlema i ?" The Solicitor-General said,
" he hoped the Bill would never be revived to the full extent
of that which had abated — which was for the recovery of all the
profits which had ever been made from the use of public money
by the late Lord Holland — a measure which appeared to him
so unjust, vexatious, and oppressive — so contrary to the re-
ceived practice of all Paymasters for a century, and which
would lay under such terrible apprehensions the descendants of
all former Paymasters, without any limitation as to time, that
he would sooner resign his office than concur in such an abuse
of the supposed prerogative of the Crown." Mr. Fox com-
plained that " of all the former Paymasters, his father was the
only one whom the late Attorney-General had singled out for
the purpose of exacting from his executors what would reduce
the whole family to beggary. This was a prosecution which,
considering the situation in which he stood when it was com-
menced, looked very like a persecution" Mr. Pitt, much
ashamed of what had been attempted, said, " he did not himself
think that such a demand should be made by the public ; but
if the demand was legal, though oppressive, his learned friend
was justified in enforcing the law, leaving it to the legislature to
give relief." Mr. Burke: "Then Empson and Dudley, who
were properly hanged, might have been justified on precisely the
same ground." f
* 23 Parl. Hist. 1026. t Ib. 1060.
22
EEIGN OF GEORGE III.
CHAP.
A.D. 1783.
November.
When a Bill for reforming the abuses of the Exchequer was
passing through the House of Commons, the ex-Attorney-
General showed his gratitude to Lord Thurlow by supporting a
clause by which the tellership of that noble Lord should be
exempted from its operation, on the ground that although there
had been no bargain on the subject when he accepted the Great
Seal, which would have been very dishonourable, there had
been an expectation and an understanding which ought to be
respected. Lord North said, " this was what the French called
•'unir les plaisirs du vice au merite de la vertu,' '' and the clause
was rejected.*
In the debate respecting amending the Receipt-Tax, Mr.
Sheridan made the House very merry by referring to an opinion
of the ex-Attorney-General on the subject, which had been
published in all the newspapers, along with another, signed
OLIVER QUID.
Mr. Kenyan: " I did write the opinion which the honourable gen-
tleman has alluded to in the regular course of my professional prac-
tice, not for the purpose of obstructing1 the collection of the Receipt
Tax or annoying1 the Government. I believe it is sound, and I abide
by it. By putting the opinion of a professional lawyer and that of
OLIVER QUID on the same footing, the honourable g-entleman has
lowered himself and not me. With regard to its appearance in the
newspapers, I am proud to say that I have no connection with them.
I never wrote paragraphs for them, nor paid news writers for the
rubbish which they contain. I am not solicitous for newspaper
fame, nor are any of the prints of the metropolis retained in my
service, although they all may be in the service of others." f
This speech is said to have been "very tartly delivered,"
and it certainly shows great boldness, considering the withering
retaliation to which he exposed himself.
When the announcement was made that the Coalition
the^'coaU- Ministry, equally odious to the King and the nation, had been dis-
missed, Mr. Kenyon naturally expressed his exultation, and
a question having been put whether Mr. Pitt, the new Premier,
would dissolve Parliament, he said, very properly, " I am not
in the secrets of those who are just gone out, or of those who
are coming in, and therefore I do not know what measures are
loth Dec.
23 Parl. Hist. 1000-91.
f Ib. 1222.
LIFE OF LOED KEN YON. 23
likely to be adopted. But this I know, that the power of dis- CHAP,
solving Parliament is in the Crown alone, and that this House < " \ '
has no constitutional right to prolong its existence by its own A-D- 1783-
authority." * As soon as Mr. Pitt had filled up the higher
offices of the Government, Mr. Kenyon again succeeded
Mr. Wallace as Attorney-General.
In this capacity he only once more came forward, and that Dec:. 20.
was in the discharge of " the duty he had sworn to per-
form " — compelling the payment of Paymasters' balances. The
object of his attack now was Mr. Rigby, who had long been Fe^
Paymaster under Lord North, and had rendered himself highly He renews
obnoxious by siding with the Coalition. Without any notice to onp^Scao-
him whatever, a motion was abruptly made " That the Right countants.
Hon. Richard Rigby, late Paymaster-General of the Forces, do
deliver to the House an account of the balance of all public
money remaining in his hands on the 13th day of November last."
Rigby complained bitterly that "the proceeding was contrary
to all practice. The want of civility did not surprise him, as
such a thing he had no right to expect from the learned gen-
tleman. He appealed to the House whether even common
decency had been observed in bringing forward in such a
manner a question so very personal."
The Attorney-General excused the want of notice by his
having come down to the House so late, and again dwelt upon
the sacred duty cast upon him when he took the oath of office,
as Attorney-General, to watch over the rights of the Crown : —
Mr. Rigty : " I will leave the House to judge of the learned gen-
tleman's candour and his motives. I might ask if any individual
ever experienced such treatment from an Attorney-General. The
obligation of his oath is his excuse. But this prodigious obligation
only operates against his political opponents ; and a very different
interpretation was put upon the Attorney-General's oath of office by
his predecessors, Lord Camden, Lord Thurlow, Lord Loughborough,
and Mr. Wallace, who really were honourable men." j
Kenyon had all this time retained the office of Chief Justice
of Chester, and twice a year travelled the North Welsh circuit
as a Judge.
At the Great Sessions, held at Wrexham, for the county of Misconduct,
us Chief
* 24 rail. Hint. 234. t Ib. 672.
24 KEIGN OF GEOKGE III.
CHAP. Denbigh, in September, 1783, the celebrated case stood for
» XLIL • trial before him of The King v. the Rev. ; William Shipley,
Justice of Dean of St. Asaph, which was an indictment for publishing the
the Dean of " Dialogue between a Scholar and a Farmer," written by Sir
St. Asaph's \YiHiam Jones. Erskine came special as counsel for the
case.
defendant, and, an acquittal being anticipated, a motion was
made to put off the trial on pretence that some one uncon-
nected with the defendant had published a pamphlet, and dis-
tributed it in Wales, inculcating the doctrine that the jury, in
cases of libel, are judges of the law as well as of the fact,
and may return a verdict of not guilty, although the act of
publication was proved, if they should be of opinion that the
alleged libel contains nothing libellous. Erskine very indig-
nantly resisted the application, but was overruled by the Chief
Justice. The Dean of St. Asaph made an affidavit, showing
that the supposed libel, which was a very harmless explanation
of the principles of representative government, had been written
by Sir William Jones, lately appointed an Indian Judge, and
that the prosecution was maliciously instituted by an individual
after the Government, by the advice of the Attorney and Soli-
citor-Generals (Mr. Wallace * and Mr. Lee), had refused to
prosecute, and that he himself was not in any degree privy to
the circulation of the pamphlet respecting the rights of juries.
This affidavit being read and commented upon by counsel, the
defendant himself interposed, and earnestly implored that he
might be allowed then to take his trial : —
Kenyon, C. J. : " Modus in rebus f — there must be an end o/
things."
Dean of St. Asaph : " Think, my Lord, of the anxiety I have suf-
fered and the expense I am put to. Let me stand or fall by the
decision of this jury : let me, if innocent, once more stand up as an
honest injured man ; if guilty, let me be dragged to a dungeon."
Kenyan, C. J. : " When the jury have given their verdict, if they
find you guilty, the Court will then consider what judgment to
pass."
* The Chief Justice professed great respect for Mr. Wallace, with whom he
had several times exchanged the office of Attorney-General, but was highly
offended by his opinion being stated that the " Dialogue " was not a libel
t This classical quotation his Lordship was in the habit of introducing when
he thought it was full time to put an end to any discussion.
LIFE OF LORD KENYON. 25
Dean of St. Asaph: "My Lord, in God's name let me have a CHAP,
verdict one way or the other. Don't let me be kept longer in sus- »
pense." A.D. 1784.
Kenyan, C. J. : " I desire that after I have given the judgment of
the Court, that judgment may not be talked about ; I have given it
upon my oath, and I am answerable to my country for it. I have
been before reminded that these things are not passing in a corner,
but in the open face of the world. If I have done amiss, let the
wrath and indignation of parliament be brought out against me ;
let me be impeached. I am ready to meet the storm whenever it
comes, having at least one protection — the consciousness that I am
right. In protection of the dignity of the Court, I do the best thing
I can do for the public ; for if my conduct here is extra-judicially
arraigned, the administration of justice is arraigned and affronted,
and that no man living shall do with impunity."
So the trial was postponed, — and when the case was entered
again at the Great Sessions in April, 1784, Erskine a second
time attending as special counsel for the defendant, it was
removed by certiorari, and it came on before Judge Buller at
the Shrewsbury Assizes in August of the same year, — when the
ever-memorable struggle took place between Erskine and Mr.
Justice Buller.*
* 21 St. Tr. 847.
REIGN OF GEORGE III.
CHAPTER XLIII.
CONTINUATION OF THE LIFE OF LORD KENYON TILL HE WAS
APPOINTED CHIEF JUSTICE OF THE KING'S BENCH.
CHAP. IN the spring of 1784 died Sir Thomas Sewell, who had been
" T ' ' many years Master of the Rolls, and Mr. Kenyon claimed the
A.D. 1784. vacant office, which was conceded to him. He rather wished to
have withdrawn from Parliament altogether, feeling that he
terofthe was unfit for it; but, luckily for him, the Secretary for the
Treasury insisted upon his finding himself a seat, that he
might swell the ministerial majority expected in the new House
of Commons. As yet Mr. Pitt had no high opinion of him,
and had reluctantly agreed to his being restored to his office of
Attorney-General and to his promotion to be Master of the
Rolls. But he was endeared to the Premier by his services
connected with the Westminster election.
Kenyon fulfilled his engagement with the Government by
purchasing his return for the borough of Tregony, and he could
not have been blamed if, thinking little more of politics, he had
simply attended to vote when he received the Treasury cir-
cular ; but being compelled to disburse a large sum for his
seat, he declared (in American phrase) that " he was resolved
to go the whole hog." He therefore became a most zealous
partisan, and strove to make himself conspicuous as a sup-
porter of the Government. His influence was now great
among his countrymen in Wales, and he was able to procure
votes for the ministerial candidate in several counties and
boroughs within the limits of his jurisdiction as Chief Justice
of Chester. These services, however, were little noticed,
compared with those which he rendered in the election for
the city of Westminster. The grand object was, that Mr.
Fox might appear to be rejected by his former constituents,
and that the disgrace should be heaped upon him of being
turned out by a man so obscure and ridiculous as Sir Cecil
AVrray. His Honour, the new Master of the Rolls, now occu-
LIFE OF LORD KEN YON. 27
pied a house in Lincoln's Inn Fields, beyond the limits of the ^ HAP.
city and liberties of Westminster ; but his stables behind the '
house were in the parish of St. Clement Danes, within the A<D-
" Liberties," and for these he was rated and paid scot and lot.
But, unfortunately, he could not as yet be said to be an in-
habitant of the city or liberties. To get over this difficulty, he
had a bed fitted up in the hay-loft over his stables ; there he
slept several nights, and then he went to the poll, and gave a
plumper for Cecil Wray.
Such a proceeding might be justified or excused, but I am The bad ad-
i IT i i • i-n T , ,1 vice he crave
sorry to be obliged to condemn, in unqualified terms, the respecting
advice which he gave respecting the "Scrutiny." This pro- Jhe /',Scm
ceeding brought great and deserved obloquy upon the Prime
Minister, whose character was yet so fair, and Kenyon's support
of it was reprobated even by one of the most zealous and able
lawyers on the ministerial side.
After the election had lasted forty days, Mr. Fox had a
considerable majority over Sir Cecil Wray ; but, at the return
of the writ, the High Bailiff, instead of returning him with
Lord Hood, who was at the head of the poll, corruptly granted
a scrutiny, and stated, in answer to the mandate requiring him
to return two citizens to serve for the city of Westminster, that
" he should proceed with the scrutiny as expeditiously as pos-
sible." According to the rate at which it was advancing, the
calculation was that it could hardly finish before the end of
the Parliament, and that it would involve Mr. Fox in an ex-
pense of 20,0007. Several motions were made in the House of
Commons, that the High Bailiff should be ordered to make an
immediate return. In opposing these the Master of the Rolls
took the lead, and he contended " that the scrutiny was per-
fectly legal ; that it might be continued after the return of the
writ ; that the High Bailiff could not properly make a return
till he had satisfied his conscience which of the two candidates
had the majority of good votes ; that he ought to have the
requisite time for this purpose, and that to force him to make
an immediate return would be contrary to the maxim of justice,
never to be forgotten — audi alteram partem" His Honour
likewise mixed up his juridical argument with bitter invectives
against the " Coalition," citing several passages from Mr. Fox's
28
EEIGN OF GEORGE III.
8 0<
C HAP. speeches during the American War, in which he had asserted
> - , — '-> that Lord North ought to be impeached and punished.
A.D. 1784. Mr. John Scott (afterwards Lord Eldon), although a warm
SiduTof6 admirer and generally a steady supporter of Mr. Pitt, took a
Lord Eldon totally different view of the subject, and contended that both
by common law and statute law the election must be finally
closed before the return of the writ, so that the subsequent
scrutiny was unlawful. Said he : —
" A very unnecessary tenderness is shown for the conscience of the
High Bailiff. There will be no torture administered to it by com-
pelling him to make a return before he has finished his scrutiny, for
his oath only binds him to act according to the best of his judgment,
and to return the candidate that has the majority of admitted votes.
I confess I do not like that conscience in returning officers, under
colour of which they may prevent the meeting of parliament for
ever, or at least present the nation with the rump of a parliament on
the day when the representatives of the whole nation ought to
assemble."
Mr. Fox, in characterising his opponents, when he came to
the Master of the Rolls, said :-
« j^ third person there is whom I might in reason challenge upon
this occasion — a person of a solemn demeanour, who with great dili-
gence and exertion in a very respectable and learned profession has
raised himself to considerable eminence — a person who fills one of
the first seats of justice in this kingdom, and who has long discharged
the functions of a judge in an inferior sphere.* This person has
made a great parade of the impartiality with which he should dis-
charge his judicial conscience as a member of Parliament in my
cause. Yet this very person, insensible to the rank he maintains or
should maintain in this country, abandoning the gravity of his cha-
racter as a member of the senate, and losing sight of the sanctity of
his station both in this House and out of it, in the very act of passing
sentence, is whirled about in the vortex of politics and descends to
minute and mean allusions to former party squabbles. He comes
here stored with the intrigues of past times, and instead of uttering
the venerable language of a great magistrate, he attempts to enter-
tain the House by quoting or by misquoting words supposed to have
been spoken by me in the heat of former debates, and in the violence
of contending factions. Not only does he repeat what he supposes I
Mr. Fox's
of the Rolls.
Chief Justice of Chester.
LIFE OF LORD KENYON. 29
said when my noble friend and I were opposed to each other, but he C HAP.
goes still farther back, and to prove that I should now be prevented > f ' >
from taking my seat for Westminster, reminds the House that when A.D. 1784.
I first sat here as representative for Midhurst, I had not reached the
full age of twenty-one years. Might I not, then, fairly protest
against such a man and men like him sitting in judgment upon
me?"
In reference to Mr. Scott's speech, Mr. F,ox said : —
" One learned gentleman, a political opponent, has shown that he
has both honour and intelligence. He has entered into the whole of
the case with a soundness of argument and a depth and closeness of
reasoning that perhaps have scarcely been equalled in the discussion
of any juridical question within these walls." *
Lord Eldon, when in extreme old age, observed : —
" Fox never said an uncivil thing to me during the whole time I
sat in the House of Commons, and I'll tell you to what I attribute
that. When the legality of the conduct of the High Bailiff of West-
minster was before the House, all the lawyers on the ministerial side
defended the right to grant the scrutiny. I thought their law bad,
and I told them so. I asked Kenyon how he could answer this —
that every writ and commission must be returned on the day on
which it is made returnable ? He could not answer it. Fox after-
wards came to me privately and said something very civil and
obliging."
The Master of the Rolls was rewarded for his self-sacrifice Kenyon is
by a Baronetcy, but he was made the subject of many cutting S^rigt
jests. The " Rolliad" coming out soon after, the work was dedi- Sir Lloyd -,
cated " To Sir Lloyd Kenyon, Bart., Master of the Rolls," Kenyon and
i • i i •!_ • i i T /> the Rolliad.
and in the title-page was exhibited, as the supposed crest ot
the family of Rolle, " a half-length of the Master of the Rolls,
like a lion, demi-rampant, with a roll of parchment, instead of a
uheon's head, between his paws," — thus celebrated : —
" Behold th' engraver's mimic labours trace
The sober image of that- sapient face :
See him in each peculiar charm exact,
Below dilate it, and above contract ;
For Nature thus inverting her design,
From vulgar ovals has distinguished thine :
See him each nicer character supply —
The pert no-meaning puckering round the eye ;
* 24 Parl. Hist. 808 910 ; 25 Parl. Hist. 1-146.
30 KEIGN OF GEORGE III.
C HAP. The mouth in plaits precise, demurely clos'd ;
XLIII. Each ordered feature and each line composed ;
T Where Wisdom sits a-squat, in starch disguise,
A.D. 1784. Like Dulness couch'd, to catch us by surprise.
And now he spreads around thy pomp of wig,
In owl-like pride of legal honours big ;
That wig which once of curl on curl profuse,
In well-kept buckle stiff and smugly spruce,
Decked the plain pleader ; then in nobler taste
With well-frizz'd bush the Attorney-General graced,
And widely waving now with ampler flow,
Still with thy titles and thy fame shall grow.
Behold, Sir Lloyd ; and while with fond delight
The dear resemblance feasts thy partial sight,
Smile if thou canst, and, smiling on this book,
Cast the glad omen of one favouring look."
"You, Sir Lloyd," said the dedication, "have ever been
reputed the immediate author of the scrutiny. Your opinion is
said to have been privately consulted on the framing of the
return ; and your public defence of the High Bailiffs pro-
ceeding notoriously furnished Mr. Rolle, and the other friends
of the Minister, with all the little argument which they ad-
vanced against the objected exigency of the writ. You taught
them to reverence that holy thing, the conscience of a re turning-
officer, above all law, precedent, analogy, public expediency,
and the popular right of representation, to which our fathers
erroneously paid religious respect." Then, after a long banter
in prose upon his Honour for having slept in his stables and
voted as the representative of his horses, this poetic effusion
follows : —
" How shall the neighing kind thy deeds requite,
Great YAHOO champion of the HOUYHNHNM'S right?
In grateful memory may thy dock-tail pair
Unharmed convey thee with sure-footed care ;
O ! may they, gently pacing o'er the stones,
With no rude shock annoy thy batter'd bones,
Crash thy judicial cauliflow'r, and down
Shower the mix'd lard and powder o'er thy gown ;
Or in unseemly wrinkles crush that band,
Fair work of fairer LADY KENYOM'S hand.
No !— may the pious brutes with measured swing
Assist the friendly motion of the spring,
While golden dreams of perquisites and fees
Employ thee, slumbering o'er thine own decrees !
But when a statesman in St. Stephen's walls
Thy country claims thee, and the Treasury calls
To pour thy splendid bile in bitter tide
On hardened sinners who with Fox divide,
LIFE OF LOKD KENYON. 31
Then may they, rattling on in jumbling trot, C HAP.
With rage and jolting make thee doubly hot, XLIIL
Fire thy Welsh blood, inflamed with zeal and leeks,
And kindle the red terrors of thy cheeks, A-D- 1784-
Till all thy gathered wrath in furious fit
On Eigby bursts— unless he votes with Pitt."
Mr. Fox being at last seated for Westminster, and having Letter from
recovered heavy damages in an action against the High Bailiff Kenyan to
for having granted and so long continued the scrutiny, at the ^JS
end of the Rolliad there is a supposed letter to this corrupt Westmin-
functionary from Sir Lloyd Kenyon, apologising for not paying ster<
these damages on account of his poverty, and particularly alluding
to a story generally circulated, that he went to Court in a
second-hand suit of clothes, bought by him from Lord Stor-
mont's valet de chambre. The whole composition is very pun-
gent, but I can only extract a few sentences from it : —
fc The long and short of the matter is, that I am wretched poor —
wretchedly so I do assure you in every sense and signification of the
word. I have long borne the profitless incumbrance of nominal and
ideal wealth. My income has been cruelly estimated at seven, or as
some will have it, eight thousand pounds per annum. I shall save
myself the mortification of denying that I am rich, and refer you to
the constant habits and whole tenor of my life, The proof to my
friends is easy. My tailor's bill for the last fifteen years is a record
of the most indisputable authority. Malicious souls may direct you,
perhaps, to Lord Stormont's valet de chambre, and vouch the anecdote
that on the day when I kissed hands for my appointment to the office
of Attorney-General, I appeared in a laced waistcoat that once
belonged to his master. I bought the waistcoat, but despise the in-
sinuation ; nor is this the only instance in which I am obliged to
diminish my wants and apportion them to my very limited means.
Lady K will be my witness that until my last appointment I was
an utter stranger to the luxury of a pocket handkerchief.*
" You are possessed of the circumstances which render any imme-
diate assistance on my part wholly out of the question. But better
times may soon arrive, and I will not fail you then. The present
Chief Justice of the King's Bench cannot long retain his situation,
and I will now reveal to you a great secret in the last arrangement
* I have heard Jekyll assert that " Lord Kenyoii never used a pocket-hand-
kerchief in his life till he found one in the pocket of this very waistcoat, — which
pocket-handkerchief he ought to have returned, as it was not included in the
bargain for the waistcoat."
32
KEIGN OF GEORGE III.
CHAP.
XLIII.
A.D. 1784.
A.D. 1786.
A.D. 1787.
Feb. 7,
1788.
Kenyon as
an Equity
Judge.
of judicial offices. Know, then, that Sir Elijah Impey is the man
fixed upon to preside in the chief seat of criminal and civil juris-
prudence. I am to succeed him in Bengal, and then we may set the
malice of juries at defiance. If they had given Fox as many dia-
monds by their verdict as they have pounds, rest assured that I am
not a person likely to fail you after I shall have been there a little
while, either through want of faith or want of means. Set your mind,
therefore, at ease. As to the money, why if Pitt is determined to
have nothing to do with it, and if nobody will pay it, I think the
most advisable thing in your circumstances will be to pay it your-
self. The contents of this letter will prove that I mean to reimburse
you when I am able. For the present, nobody knows better than
yourself, not even Lady K , how ill matters stand with me, and
that I find it utterly impossible to obey the dictates of my feelings.
" Your very affectionate friend
" And humble servant,
" Lincoln's Inn Fields, June 20, 1786." «« L. K.
Sir Lloyd's efforts connected with the Westminster Scrutiny
brought him into such trouble and discredit, that he wisely re-
solved wholly to renounce politics and to stick to his judicial
duties. For these he felt he was well qualified, whereas he
declared that " legislation was a task to which he by no means
thought himself equal." Accordingly, although he retained his
seat in the House of Commons several years longer, he gene-
rally contented himself with a silent vote. However, he strenu-
ously opposed a Bill for taking away the jurisdiction of the
Ecclesiastical Courts in cases of defamation, which had been
productive of much oppression to individuals and scandal to the
church, arid when asked to regulate, if he would not abolish, these
proceedings, he said " he would not presume to blurt out his
crude ideas of legislation, lest they should fail of success." *
The last time of his addressing the House of Commons was
in support of Sir Elijah Impey, but he rather damaged the
defence by his intemperance, and gave Mr. Burke and Mr.
Francis a triumph over him.f
Let us now attend him to the Rolls, where he appeared to
much greater advantage. Being unable to read a single page
of the Pandects, and being wholly unacquainted with the Roman
civil law, even through the medium of translations and com-
25 Parl. Hist. 1384, 1403 ; 26 Parl. Hist. 1004-5-8.
f Ib. 1422-4.
LIFE OF LORD KENYON. 33
mentaries he cannot be said to have been a great equity judge, C HAP.
but he was most familiarly acquainted with the practice and the v v ' /
doctrines of the Court of Chancery, he took very great pains A-D- 1784-
with every case that came before him, and he despatched busi-
ness with celerity and precision. He never seems to have
written his judgments, and they cannot be praised for method,
but they were very clear and generally very sound.
The Reporters are Brown* and Cox,t and from them I extract
a few of the most favourable specimens of his manner as Master
of the Rolls. The question arose whether there ought to be a
decree for the dissolution of a partnership, where one of the
partners was so far disordered in his mind as to be incapable of
conducting the partnership business according to the terms of
the articles of co-partnership, although he could not be con-
sidered non compos mentis. As soon as the hearing of the cause
was concluded, his Honour, without carrying the papers home
with him or taking time to consider, spoke as follows : —
" This point is a new one, and if I conceived any industry of mine
would throw any light upon the subject, I would take time to con-
sider of my opinion, but as I do not know of any authority to guide
me, and as I have made up my mind as to what I ought to do, I
shall give my sentiments now. I think it may be laid down that
where partners are to contribute skill and industry as well as capital,
if one partner becomes unable to contribute that skill, a Court of
Equity ought to interfere for both their sakes ; for both have stakes
in the partnership, and are interested in having it carried on pro-
perly, and the Court ought to see that the property of the party
unable to take care of himself should be taken care of for him. It
appears that few people care to leave the management of their pro-
perty to other persons ; and as a lunatic has no power of managing
his own property, so a Court of Equity will not deliver it to persons
to whom the party himself has not committed it. If therefore this
gentleman continues in the same state of derangement in which he
has been, I should have no difficulty in saying that the partnership
ought to be dissolved, though there may be no precedent for the
purpose. If, as is alleged, he has clearly recovered his senses and
there is no danger of a relapse, it would be too much to dissolve the
partnership. Everybody knows that it is very frequent for persons
once mad not to recover. I must therefore direct a new kind of
inquiry, 6 Whether Bennet is now in such a state of mind as to be
* Brown's Rep. vols. i. and ii. f Cox's Cases, vols. i. and ii.
VOL. III. D
34 REIGN OF GEORGE III.
CHAP, able to conduct the business according to the articles of copartner-
XLIIL ship ;' for if he has merely a ray of intellect, I ought not to reingraft
him in his partnership, and that in mercy to both, for the property
of both is concerned, and he who cannot dispose of his property by
law, must be restrained." *
Persons entitled to an estate under a will upon the con-
tingency of James Baron dying without lawful issue, applied for
a writ de venire inspiciendo, under these circumstances. He
had married his servant maid, who in three weeks after the
marriage was delivered of a dead child, and he dying soon
after, she alleged herself to be again pregnant, whereas there
was great reason to believe that she intended to palm a suppo-
sititious child upon the world for the purpose of defeating
the remainder man. Objection was made that the writ could
only be granted to persons claiming by descent.
Master of the Rolls. — " At the time when the writ was first framed,
which was coeval with the common law, the nature of the claim now
made could not possibly exist; there was no disposition by will.
Therefore land could only be claimed by descent. But the language
of the writ may be varied according to the exigency of the case.
Now what is the exigency of this case ? — that the persons entitled
to the property should not be defeated by a supposititious child.
Desinherison or exhceredatio is not confined strictly to an heir.
When there is eadem ratio there ought to be eadem lex. The question
is, whether there be in this case circumstances sufficient to warrant
me in granting the order ? The situation and conduct of the wife
may well alarm the parties interested. She was brought to bed in
less than three weeks after the marriage, and doubts arising when
soon after upon her husband's death she declared herself pregnant,
she did not take proper measures to remove these doubts — which she
should have done, if it were only for the sake of the child. I there-
fore clearly think that the writ should issue." f
Q. How far In Halfhide v. Penning Sir Lloyd Kenyon pronounced a
to refer to judgment which has been often overruled, but which I humbly
ma'*!*1011 aPPreneil(l rests on just principles. To a Bill for an account
pleaded in between partners, the defendant pleaded that by the articles of
oration p1 partnership it was stipulated that any disputes arising between
them respecting matters of account should be referred to arbi-
tration.
* Sayer v. Bennet, 1 Cox, 107. f Ex parte Bellett, 1 Cox, 297.
LIFE OF LOED KENYON. 35
Master of the Bolls. — " There can be no doubt but tliat parties CHAP.
XLIII
entering into an agreement that all disputes shall be referred to
arbitration, are bound by such agreement. The Legislature has
countenanced arbitrations by enacting facilities to enforce the per-
formance of awards. Where a cause is referred by rule of the
Court of King's Bench, with a clause that no Bill in Equity shall be
filed, that Court, considering this clause legal, grants an attachment
for the violation of it. Such references are very advantageous to
the parties, as arbitrators are more competent to the settling of com-
plicated accounts than the officers of Courts of law or equity. I ought
to be convinced that arbitrators cannot or will not proceed before I
entertain jurisdiction of the matter. I am satisfied that in the first
instance recourse ought to be to those judges pointed out by the
articles. If they cannot determine the controversy, they will remit
it to -this Court."*
Although we shall in vain look in his judgments at the Rolls Sir Lloyd
for such masterly expositions of the principles of equity as
delight us in those of his successor, Sir William Grant, and an Equity
there were several of his decrees reversed, he despatched a great
deal of business in a very creditable manner. Lord Eldon
afterwards said to his son, " I am mistaken if, after I am gone,
the Chancery Eecords do not prove that if I decided more than
any of my predecessors in the same period of time, Sir Lloyd
Kenyon beat us all." This compliment to Sir Lloyd Kenyon is
well deserved, although the condition on which it is awarded
cannot be affirmed, as Lord Eldon himself, in finally disposing
of causes, was one of the slowest as well as one of the surest
Judges who ever sat upon the bench.
The distinguished Welshman was now to exhibit his judicial Resignation
powers on a wider stage. Lord Mansfield having presided Mansfield.
thirty years as Chief Justice of the Court of King's Bench, was
disabled by age and infirmity from longer doing the duties of
his office, and he anxiously desired that Mr. Justice Buller
should be appointed his successor. He intimated his willing-
* 2 Brown, 336. The maxim that Courts of Law and Equity are not to be
ousted of their jurisdiction by the agreement of the parties arose at a time when
the profits of judges depended almost entirely upon the number of suits tried
before them. This mode of remuneration accounts for the decisions whereby
the statutes made to discourage frivolous actions by depriving the plaintiffs
of costs were long rendered abortive.— December, 1849.
I am glad to think that by judgments of the Court of Queen's Bench, and
of the House of Lords, in which I took a part, the right of parties to provide for
the settlement of their disputes by arbitration is now fully established. — January,
D 2
36
KEIGN OF GEORGE III.
CHAP.
XLIII.
A.D. 1788.
Sir Lloyd
Kenyon
appointed
his succes-
sor, and
raised to the
peerage.
7th Nov.
ness to resign if this arrangement should be acquiesced in. But
it is said that the Prime Minister, when at the bar and going
the Western Circuit, although Buller, the Judge of Assize, was
very civil to him, had been much scandalized by observing
his Lordship's demeanour in trying a great Quo Warranto
case, which involved the right to return members of Parlia-
ment for a Cornish borough, contested by his family ; and it is
certainly known that Mr. Pitt not only had a good opinion of
Sir Lloyd Kenyon's moral qualities, but felt deep gratitude for
the sacrifices that his Honour had made in qualifying himself to
vote for Sir Cecil Wray by sleeping in his own stables, and in
zealously defending the " Scrutiny." Lord Mansfield was there-
fore told that the Master of the Rolls would be recommended
to the King as Chief Justice. The notion was particularly dis-
agreeable to the aged Peer. He not only sincerely believed
that his favourite was much better qualified, but he had been told
that the rival candidate had sneered at some recent decisions
of the King's Bench which tended to bring about a fusion of
law and equity, and that he was accustomed, like the Sergeants
celebrated by Pope, to
" Shake his head at Murray as a wit."
For two years, while shut up in his villa at Caen Wood, Lord
Mansfield retained his office of Chief Justice, in the hopes that
Buller's growing popularity, while de facto presiding as the first
common law Judge in Westminster Hall, might bear down all
opposition, or that there might be a change of ministry, — when
his superior merit might be acknowledged and rewarded.
At last hints were thrown out that this retention of the office
was an abuse of the statute which made judges irremoveable,
and that the power of removing, reserved to the Crown on an
address of the two Houses of Parliament, might be put in force
for incapacity as well as for criminality.
Accordingly, on the 4th day of June, 1788, Lord Mansfield
signed his resignation, and on the 9th of the same month, being
the last day of Trinity Term, 1788, Sir Lloyd Kenyon was
sworn in as his successor. On the same day the new Chief
Justice, by letters patent under the Great Seal, was created Baron
Kenyon of Gredington, in the county of Flint. He sat at
nisi prius immediately after, but he was not formally installed
till the first day of the following Michaelmas Term.
LIFE OF LORD KENYON. 37
CHAFFER XLIV.
LORD KEN YON AS CHIEF JUSTICE OF THE KING'S BENCH.
ALTHOUGH Lord Kenyon afterwards acquired the full respect XLIV."
both of the legal profession and of the public, his promotion was in v »
the first instance much disrelished. The gibes of the Rolliad cir-
culated in society ; he had offended several barristers by his hasty larity of the
and uncourteous manner, and there was an illiberal apprehen-
sion that, because he had practised while at the bar in a court
of equity, he must be unfit to preside in a court of law. Buller,
on the contrary, was not only " the Prince of Special Pleaders,"
and really had done the business of the King's Bench exceed-
ingly well for two years, but he had been in the frequent habit
of inviting all grades of the profession to the genial board,
where they found flowing cups as well as flowing courtesy.
As I am henceforth to speak of the new Chief Justice almost Lord
exclusively in his judicial capacity, it may be convenient that I
should at once proceed to the notice which I am called upon to seat in the
take of him as a politician. He was introduced into the House l™ds. °f
of Peers in his robes between Lord Sydney and Lord Walsing-
ham on the 26th of June, 1788.* Of course he was a steady
* " June 26, 1788.
" Sir Lloyd Kenyon, Baronet, being, by Letters Patent bearing date the 9th
June, 1788, in the twenty-seventh a year of his present Majesty, created Baron
Kenyon of Gredington, in the county of Flint, was (in his robes) introduced
between the Lord Sydney and the Lord Walsingham (also in their robes), the
Gentleman Usher of the Black Kod and Garter King at Arms preceding. His
Lordship on his knee presented his Patent to the Lord Chancellor at the Wool-
sack, who delivered it to the Clerk ; and the same was read at the Table. His
Writ of Summons was also read as follows (videlicet) :
" ' George the Third, by the Grace of God, of Great Britain, France, and Ireland,
King, Defender of the Faith, and so forth : To Our right trusty and wellbeloved
Counsellor Lloyd Kenyon, of Gredington, in Our County of Flint, Chevalier,
greeting : Whereas Our Parliament for arduous and urgent Affairs concerning
Us, the State and Defence of Our Kingdom of Great Britain, and the Church,
is now met at Our City of Westminster ; We, strictly enjoining, command you
under the Faith and Allegiance by which you are bound to Us, that consider-
R Sic.
38
REIGN OF GEORGE III.
CHAP.
XLIV.
A.D. 1789.
23rd Jan.
His speech
on the in-
sanity of
George III.
supporter of the Government, although he very properly abstained
from again making himself prominent as a political partisan.
In a debate which soon after arose upon the insanity of
George III., Lord Porchester, to enforce the necessity of im-
mediately restoring the exercise of the royal authority by ad-
dressing the Prince of Wales to act as Regent, stated —
" That on Monday last two men had been butchered by a public
execution, because the door of mercy was barred against them, and
that these unfortunate convicts had been deprived of all opportunity
of applying either for a pardon or for a temporary reprieve, although
it had been laid down by Judge Blackstone that if a convict, after
receiving sentence of death, loses his senses, execution is stayed, be-
cause, if he had retained his senses, he might have urged some plea
to induce the Crown to remit or to mitigate his punishment."
Lord Kenyan. — " It would ill become me to listen with silent
indifference to a charge of so serious a nature, and urged with such
vehemence against a judge. The judge who tried these criminals is
now the party accused. If on the trial of a person convicted of a
capital crime, circumstances come out which warrant the judge in
supposing that the verdict is wrong, it is his duty to respite the con-
vict. If anything favourable appeared on the trial of the two per-
sons executed on Monday, the judge who tried them ought to have
respited them ; and if he neglected his duty, they have not been
butchered but murdered by him, which is a much higher offence.
The judge guilty of such an act of criminal neglect, instead of being
allowed to go in state to Westminster Hall next morning, ought to
have been seized in his fur robes, dragged from the seat of justice,
and hurried to that dungeon in which the two unfortunate men had
lingered the last hours of their existence. I therefore call upon the
ing the Difficulty of the said Affairs and Dangers impending, all Excuses being
laid aside, you be personally present at Our aforesaid Parliament with Us, and
with the Prelates, Nobles, and Peers of Our said Kingdom, to treat of the afore-
said Affairs, and to give your Advice, and this you may in nowise omit as you
tender Us and Our Honour, and the Safety and Defence of the said Kingdom
and Church, and the Despatch of the said Affairs.
" ' Witness Ourself at Westminster, the Ninth Day of June, in the Twenty-
eighth Year of Our Reign.
"'YORKE.'
" Then his Lordship took the Oaths, and made and subscribed the Declaration ;
and also took and subscribed the Oath of Abjuration, pursuant to the Statutes,
and was afterwards placed on the Lower End of the Barons' Bench.
" Garter King at Arms delivered in at the Table his Lordship's pedigree, pur-
suant to the Standing Order."— 38 Journal, 249.
LIFE OF LOKD KENYON. 39
noble lord to make good his charge, to name the judge, arid to bring CHAP,
the real culprit to condign punishment."
Lord Porchester. — " I bring no imputation on any judge. The
judge who tried these two unfortunate prisoners is my own near re-
lation, and a most honourable, enlightened, and humane magistrate.
But because the evidence against them on their trial might appear
quite sufficient, does it follow that they might not have good reason
to apply for pardon or reprieve, and ought they to have been hurried
out of the world, while, contrary to our laws and our constitution,
the power of extending mercy to them was suspended ? "
Lord Kenyon returned no answer; but I apprehend he
might have said, that in truth the ministers of the Crown conti-
nued to exercise the powers of their several offices ; that a par-
don or respite if fit to be granted would have been directed by
the Secretary of State as effectually as if the King had been in
the full possession of his faculties.*
By this maiden speech our Chief Justice did not make a He
favourable impression, and he was so little satisfied with it him- ^
self, that he never again opened his mouth in the House of ings's im-
Lords till the question arose whether the impeachment of Mr. haTabated
Hastings was abated by the dissolution of Parliament. Although b7 the dis*
e> .-,. , 'j-i-,1 i t c ..,, solution of
so ramiliarly acquainted with every branch ot our municipal law, Parliament.
he knew very little of the law of Parliament, and it would have 16th May,
been better if on this occasion he had remained silent. He
apologised for his defective information on the subject, as his
professional engagements had prevented him from reading the
Report of the Committee appointed to search for precedents.
He then strongly took the side of abatement. " If dry legal
reasoning," said he, " and a strict attention to forms of practice
(on which substantial justice depends) be unpleasant to your
Lordships, you had better not call on lawyers for their opinions,
but either send them out of the House, or not allow them to
babble here." In commenting on the opinion of Lord Hale, he
fell into the mistake of asserting, " as an undoubted fact, that
this great judge would never sit on a criminal case during the
Commonwealth, because he doubted the authority of Cromwell,"
whereas Hale undoubtedly took the oath to the Republican Go-
vernment, and, till he had a difference with the Protector, tried
* 27 Parl. Hist. 1065.
40 KEIGN OF GEOKGE III.
CHAP, criminal as well as civil cases without any scruple.* Good sense
* prevailed, and the quibble of abatement was crushed by a majority
of 60 to 18. f
3rd July, Lord Kenyon strongly opposed the Bill to prevent vexatious
1789* suits for small tithes, saying that " he could not consider it any
oppression that persons should be imprisoned for sums as low as
one shilling, for if any were so obstinate as to refuse the payment
of legal dues, the law ought to be enforced. He, therefore,
would not concur in pulling down a fabric which had stood so
many years, and which was the chief support of the inferior
clergy." {
April, 1792. Our Chief Justice next came forward to oppose Mr. Fox's
Mr.°Fox'seS Libel Bill> which declared that juries had a right to determine
Libel Bill, whether the writing charged to be libellous is of an innocent or
criminal character. " He expressed his dislike of the loose and
vague manner in which the Bill was worded. He pronounced
its principle to be a direct contradiction to the practice of a long
series of years, and that it was totally inadequate to the purpose
it was meant to effect. It tended to alter the established law of
the realm, and was a dangerous innovation upon the constitution.
The only doubt was whether the truth should be taken as part
of the defence, and if this Bill were to pass, a clause to deter-
mine that point would be absolutely necessary. He thought the
Judges the only men who could give the necessary information,
and he should move that the following questions be put to them :
Questions — c 1. On the trial of an indictment for libel, is the criminality
WnTfor thJ or innocenc6 of the paper set forth as the libel matter of fact or
opinion of matter of law ? 2. Is the truth or falsehood of the paper ma-
a ges' terial, or to be left to the jury on a trial ? ' :
The two questions were referred to the Judges, who unani-
mously answered that " it was for the Court alone, and not for
the jury, to determine whether the paper charged to be a libel
was criminal or innocent," and " that proof of the truth could
not be admitted ; nay, that the doctrine for excluding it was so
firmly settled and so essentially necessary for the maintenance of
the King's peace and the good order of society, that it cannot
be drawn into debate." §
* Lives of Chief Justices, vol. i. 527, 529. f 29 Parl. Hist. 535.
$ 28 Parl. Hist. 218. § 29 Parl. Hist. 1361.
LIFE OF LOKD KENYON. 41
On the motion for the second reading of the Bill, Lord Cam- CHAP.
den and Lord Loughborough still advised the House to pass it ; < , — i-/
but it would appear that Lord Kenyon would have remained J;ord
•111 T i « i i • i'ii Stanhope s
silent had not Lord otanhope made some observations which he speech to
supposed reflected upon him. This eccentric Peer not only found
fault with the direction given to the jury at the famous trial of
the King v. Stockdale, but, to illustrate the injustice which might
be done by referring the question of "libel or no libel" to the
Judges instead of the jury, put the case of there being an indict-
ment for an alleged libel, in denouncing the prosecution as " a
great bore."
" If referred to the jury," said his Lordship, " they would imme-
diately say, ' This is no imputation on moral character. We who attend
in courts of justice know well that a person may be a great bore who
is very desirous of discharging his duty, and is only very narrow-
minded, dull, and tedious. Therefore we find a verdict of not guilty.'
But if treated as a mere question of law, the Judges would say, ' We
read nothing in our books of a bore so spelt. Lord Coke says, ' the
spelling of words signifieth naught.' We must consider that the libel
denounces the prosecutor as a great boar. Now Manwood de Foresta
lays it down that ' a boar is a beast of chace of an evil and ungovern-
able nature, the which it is lawful to follow and to kill.' Now,
whereas the libel avers that the prosecutor is ' a great boar,' we must
take this in mitiori sensu, and suppose the charge to be, not that the
prosecutor actually is a great boar, but only that he has the qualities
of a great boar. But these render him unfit for society as much as
if he were infected with certain disorders, to impute which is libellous
and actionable. A 'great boar' is as much as to say a 'wild boar,'
which may lawfully be slain by those whom it attacks, even in the
purlieus of a royal forest. Therefore we hold the defendant to be
guilty, and we sentence him to be hanged."
Lord Kenyon : " After the unprovoked attack that has been made Lord
upon me, I must appear the meanest of mankind in your Lordships' Kenyon'a
estimation if I do not endeavour to defend myself. Every man
cannot command the great abilities and the great eloquence which
have been exhibited here this day ; but there is one thing in every
man's power, viz., veracity. The noble Earl, instead of seeking to
obtain true information, chooses rather to attack me on false facts.
In Stockdale's case, Mr. Erskine expressed himself quite satisfied with
my direction, and I entirely approved of the verdict. The noble
Earl has tried to cover with ridicule all that is held sacred. I honour
trial by jury as much as any man; but let the jury be confined to
42 REIGN OF GEORGE III.
CHAP, their proper province, the trial of facts. I conjure your Lordships,
therefore, to let the law remain as it is, with all its guards and fences
about it. A man sitting on the bench suffers many an uneasy mo-
ment, and is obliged to consult his conscience to enable him to do his
duty. Great are the advantages from the question of libel or no libel
remaining exclusively with the Judges. If a man were indicted for
publishing a paper which inculcated virtue and loyalty, instead of
vice and sedition, I would not direct the jury to find a verdict against
such a defendant. Cases have occurred where the jury have found
the defendant guilty, and the Judges, have stepped in and rescued
him. As for the noble Earl to dabble in law, as he has attempted,
it is as preposterous as if I were to quote Sir Isaac Newton's PRIN-
CIPIA, or to go into a dissertation on Euclid's Problems.* The noble
Earl's speech deserves no other notice, for instead of being proper
for your Lordships to hear, it was rather calculated to inflame the
lowest dregs of the people and to put them out of humour with the
public administration of justice." f
However, from the noble support given to the Bill by Mr.
Pitt's government it passed, and it has operated most bene-
ficially. Thanks to the liberality of a succeeding age another
Bill has passed, admitting evidence of the truth of the charge ;
— and this too has greatly promoted " the King's peace and the
good order of society," which the Judges said the mere mention
of such a measure would fatally subvert. J
For the five following years, perhaps the most interesting in
our parliamentary annals, Lord Keriyon appears never to have
opened his lips in the House of Peers, and I find him only
once more addressing this assembly, although he very regularly
voted or gave his proxy in favour of the Government.
Charge that Lord Moira had brought in a Bill to abolish imprisonment for
pecuniary debt. Among other petitions in favour of the Bill, there was
OUQ detailing the abuses supposed to prevail in the King's
the King's Bench prison, and asserting that from the sale of beer and
Prison. spirits to the debtors, large profits were derived by the Lord
Chief Justice. The noble Lord who introduced the Bill declared
that he believed that these charges were false and calumnious.
27thMarch, Lord Kenyon, rising with evident agitation, spoke as
1797- follows:—
* Sic. He seems to have thought it great presumption for a lawyer to
pretend to have crossed the Pons Asinorum.
f 29 Parl. Hist. 1294, 1431. J Lord Campbell's Libel Bill, 6 & 7 Victoria, c. 96.
LIFE OF LOED KENYON. 43
" My Lords, when I came down to the House this day I did not
know whether I should not be dragged to your Lordships' bar as a
criminal. I beg your Lordship's indulgence, therefore, while I ex-
press my injured feelings. It is most true that the vile charge
against me alluded to by the noble Lord has excited my grief and
indignation. Who would have supposed that there was a single
man in the kingdom base enough to believe me guilty of such mis-
conduct, and barefaced enough to put such an accusation upon
paper? Although I am not now upon my oath I speak under a
sense of the duty I owe both to God and man, and I take this oppor-
tunity of solemnly declaring, as I hope for salvation at the day of
judgment from that all just and benevolent Being to whom I am to
answer for my conduct in this life, that every syllable of the accusa-
tion is utterly false. I have never received any profit or emolument
from the abuses which have been mentioned, yet a slanderer asserts
that they were for my profit and emolument sanctioned by me in
my judicial capacity, and I am represented as avariciously sharing
the plunder with gaolers, turnkeys, and tipstaves. Under my pre-
sent feelings I most earnestly beseech and implore your Lordships
to appoint a committee to inquire into my conduct, and I pledge
myself to adduce evidence before that committee to prove what I
now solemnly aver. But for the public good I am clearly of opinion
that imprisonment for debt should continue. I insist that the law
of arrest, as it now prevails, has conduced in an essential degree to
the increase of commerce and the extension of trade. The most
serious consequences would follow if the security which it offers to
the creditor were weakened. It is impossible altogether to pre-
vent abuses, but when they come to my knowledge they shall
never be countenanced, nor the authors of them suffered to go
unpunished." *
The Bill was thrown out by a majority of 37 to 21, and did
not pass till above forty years afterwards, when I had the honour
to re-introduce it.
Henceforth Lord Kenyon, when attacked, instead of de- ord
fending himself in debate in the House of Lords, " changed
the venue " to the Court of King's Bench, where he could both
indulge in4 a little self laudation, and retaliate upon his accusers
without any danger of a reply.
He never brought forward any Bill for the amendment of the
law, nor did he even attend to the judicial business of the
* 33 Parl. Hist. 181.
44 KEIGN OF GEOKGE Til.
CHAP. House of Lords. This cannot be celebrated as a very glorious
parliamentary career. Indeed if a Chief Justice of the King's
Bench is to do so little for the public as a peer, there seems no
reason why he should be ennobled. His official rank is abund-
antly sufficient to insure respect to a man of character and
ability, and a peerage is conferred upon him, not that he may
frank letters or walk in a procession, but "that he may assist in
the supreme Court of Appeal for the empire, and, as a legislator,
he may strive to improve our laws and institutions.
His judicial I am much pleased that we are now to see Lord Kenyon
character, presiding on his tribunal in Westminster Hall. Here he ap-
peared to infinitely greater advantage. Although not free
from considerable defects, in spite of them he turned out to
be a very eminent common law Judge. His thorough ac-
quaintance with his craft, his intuitive quickness in seeing all
the bearings of the most complicated case, and his faculty of
at once availing himself of all his legal resources, gave him a
decided advantage over competitors who were elegant scholars,
and were embellished by scientific acquirements. He had a
most earnest desire to do what was right ; his ambition was to
dispose satisfactorily of the business of his Court, and to this
object he devoted his undivided energies.
However, the misfortune of his defective education now be-
came more conspicuous, for he had not acquired enough general
knowledge to make him ashamed or sensible of his ignorance,
and without the slightest misgiving he blurted out observations
His Latin which exposed him to ridicule. He was particularly fond of
quotations. quoting a few scraps of Latin which he had picked up at school,
or in the attorney's office, without being aware of their literal
meaning. In addition to the " modus in rebus," * he would
say, that in advancing to a right conclusion, he was determined
stare super antiquas vias, and when he declared that there was
palpable fraud in a case, he would add " apparently latet anguis
in herba" At last George III., one day at a levee, said to
him, " My Lord, by all I can hear it would be well if you
would stick to your good law and leave off your bad Latin,"
but this advice, notwithstanding his extraordinary loyalty, he
could not be induced to follow.
* Ante, p. 24, liis observation in Dean of St, Asapli's case.
LIFE OF LORD KEN YON. 45
A more serious obstacle to the dignified discharge of his CHAP.
~VT T"\7
judicial duties arose from his hasty and ungovernable temper. •
He is said to have surprised his friends for a few weeks after His bad
taking his seat as Chief Justice with a show of courtesy, but he
soon gave up the unequal contest, and his brother Judges, the
bar, and the solicitors were by turns the victims of his choler.
We have the following account of his demeanour in Court from Account of
a barrister who practised under him all the time he was Chief our^mean"
Justice : Court by
Espir
" The supercilious reception which he gave to the opinions
of the other Judges was not that merely of neglect, it bordered
on contempt. He predominated over them with high ascendency.
They very rarely differed from him ; if they did, their opinions
were received with a coldness which stooped not to reply, or, if
noticed, were accompanied with angry observation. He was irri-
tated by contradiction, and impatient even of an expression of
doubt of the infallible rectitude of what he had delivered as his judg-
ment. In differing with his predecessors he used no soft or measured
language. Having occasion to contravene a dictum of Chief Justice
Holt, ' he wondered that so great a Judge should have descended to
petty quibbles to overturn law and justice ;' and when a saying of
Lord Mansfield was cited respecting the right to recover a total loss
on a valued policy, with a small interest actually on board, he
declared that * this was very loose talking, and should not be ratified
by him.' When a new trial was moved for against a ruling of his
own, on the ground of mis-direction, he would scarce give time to
his colleagues to deliberate together, but at once burst out, ' If the
rest of the Court entertain any doubt the case may be farther con-
sidered, but I am bound to give the same opinion I formerly gave —
not because I gave that opinion before, but because I am convinced
by the reasoning that led to it.' Whenever his brother Judges
ventured to differ from and overrule his decisions (there were
scarcely a dozen cases in the course of fourteen years which called
for this exhibition of fortitude), his manner evinced as much testiness
as if he had received a personal affront. If a word escaped from a
counsel not quite in accordance with his sentiments, his temper
blazed into a flame which could scarcely be subdued by humility.
On these occasions he gave loose to an unchecked effusion of intem-
perate expression, and his language was not chastened by the strict
rule of good breeding. Mr. Law, when leader of the Northern
Circuit, having moved rather pertinaciously for a new trial, Lord
Kenyon thus concluded his •judgment — * You will take nothing by
46
REIGN OF GEOEGE III.
CHAP, your motion but the satisfaction of having aired your brief once
1 XLIV ' more-' Nor while thus offensive to those more advanced in the
AD 1788 profession could he claim as a set off the merit of being gracious and
— 1802. encouraging to the junior portion of the bar. An irregular applica-
tion, though it proceeded from inexperience only, was received
without the indulgence which was due to it ; if made by the more
experienced it was received with contumely. He would say, * You
know you cannot succeed. You do not expect to succeed/ "
His par- A graver fault was his indulging in partialities for and anti-
antipathies, pathies against particular barristers. Erskine was his pet — he
delighted to decide in favour of this popular advocate, and
when obliged to overrule him he would give his head a good-
natured shake, and say with a smile, " It won't do, Mr. Erskine,
it won't do." Law, on the contrary, was so snubbed by him,
that at last he openly complained of his constant hostility in the
well-known quotation : —
" Non me tua fervida terrent
Dicta, ferox [pointing to Erskine] ; Di me terrent, —
[Pointing to the bench] — et JUPITER hostis"
George
III.'s con-
gratulation
to him on
the loss of
his temper.
Such was the general opinion respecting the infirmity of his
temper that the following anecdote was circulated and believed,
although the epigrammatic point and the rudeness which it im-
putes to George III. were equally at variance with the character
of that royal personage : " Lord Kenyon being at the levee
soon after an extraordinary explosion of ill humour in the Court
of King's Bench, his Majesty said to him, ' My Lord Chief
Justice, I hear that you have lost your temper, and from my
great regard for you I am very glad to hear it, for I hope you
will find a better one/ "
All these failings, nevertheless, were much more than coun-
terbalanced by his professional learning, his energy, and his
probity, so that he was not only admired by common jurymen
who were on a level with him as to general acquirements, and
with whose feelings and prejudices he sympathised, but his
brother Judges, in all the Courts at Westminster, owned his
superiority, the bar succumbed to his despotic sway, and the
public, while they laughed at his peculiarities, confided in him
and honoured him. I can hardly point out any principle on
which he openly professed to differ from his predecessor, except
LIFE OF LORD KENYON. 47
the rigid enforcement of the rule, that in the possessory action C HAP.
of ejectment the legal estate shall always prevail. Lord Mans- \ - , — L/
field had not only very properly decided that the tenant may His anxiety
not dispute the title of the lessor under whom he occupies, rights of
the " k
and that satisfied terms may be presumed to be surrendered, the
but in some cases he had gone farther, and held where there
was no estoppel, that unsatisfied out-standing terms should not
bar an ejectment if the party bringing the ejectment would agree
to recover, and to hold the premises subject to the uses of these
terms.* But Lord Kenyon overruled Buller, who followed the
doctrine of Lord Mansfield, — and, supported by Ashurst and
Grose, held that a court of law was wholly incompetent to
consider trusts, and, there being no estoppel, that an outstand-
ing term, if there was no sufficient ground for presuming it to be
surrendered, was universally a complete bar to the ejectment, t
He likewise induced the Court to hold against a decision of His decision
Lord Mansfield, that an action cannot be maintained in a court ^f* no ,
action at
of law for a pecuniary legacy, although the executors have law can be
assets in their hands from which it might be paid, as a Court of ™r 'a legacy
Equity has the means of determining such questions much more
satisfactorily, and of doing justice to all who may be interested
in the fund.J With still more doubtful policy he overturned Ruie tj,at
some decisions of Lord Mansfield respecting actions by and a mar"ed
. , . , woman
against married women separated from their husbands by a shall never
divorce a mensa et thoro, or under articles of separation with to^uTort^
property settled upon them, or where they had declared them- be sued as
selves to be, and had acted as single women, the rule being now
laid down that a married woman cannot bring an action or be
impleaded as a feme sole while the relation of marriage subsists,
— although the common law furnished the analogy of a married
woman acquiring a separate character by the exile of her husband,
or by his entering into religion.§
I am not aware of any other decisions to justify the oft-
* Doe dem. Bristow v. Pegge, 1 T. R. 758 n.
t Doe dem. Hodsden v. Staple.
i Deeks v. Strutt, 5 T. E. 690.
§ Marshall v. Button, 8 T. E. 545. One of the most remarkable instances of
an action by a married woman is that by Lady Belknappe (wife of the Lord
Chief Justice), when her husband had been transported to Ireland. ' Lives of
Chief Justices,' vol. i. p. 113.
48
KEIGN OF GEOKGE III.
9th Dec.
1789.
His beha-
viour on
the trial
of Rex v.
Stockdale.
C HAP. repeated assertion that " Lord Kenyon restored the simplicity
and rigour of the common law." *
I shall now proceed to mention some of the most remarkable
cases which came before him as Chief Justice of the King's
Bench.
Soon after his elevation, he tried the famous ex-officio in-
formation of Rex v. Stockdale, the prosecution having been
ordered by the House of Commons for a supposed libel upon
that assembly, in the shape of a defence of Mr. Hastings.
The Chief Justice's direction to the jury on this occasion was
wholly unexceptionable ; but considering that the Bill had not
yet passed declaring the right of juries to judge of the cha-
racter and tendency of papers charged as libellous, as well as
the act of publication, I am quite at a 4oss to reconcile his
direction with the opinion he peremptorily gave in the House of
Lords, and often repeated afterwards, that " libel or no libel "
was a pure question of law, to be decided by the Court. He
had strongly sided with the defenders of Hastings, and very
much approved of the sentiments which the prosecuted pamphlet
expressed, — thinking that the House of Commons had been
guilty of oppression and vexation in the manner in which they
had instituted and conducted the impeachment. Perhaps his
wish for an acquittal might have unconsciously biassed his
judgment. But, however this may be, he distinctly told the
jury that they were to consider whether the sense which the
Attorney-General had affixed to the passages set out in the
information was fairly affixed to them. According to the old
doctrine, the jury were to consider whether the innuendoes in the
information were made out, such as that " H of C "
meant House of Commons, or that "the K " meant our
Sovereign Lord the King, and nothing further. But here the
Lord Chief Justice Kenyon said : —
" You must make up your minds that this was meant as an
aspersion upon the House of Commons, and I admit that you are
not bound to confine your inquiry to those detached passages which
the Attorney-General has selected as offensive. But let me, on the
other side, warn you that though there may be much good writing-,
* The observation would have been more just, that " he successfully resisted
Lord Mansfield's attempts to bring about a fusion of Law and Equity."
LIFE OF LORD KENYON. 49
good argument, morality and humanity in many parts of it, yet, if CHAP,
there are offensive passages, the good part will not sanctify the bad > T '
part. You have a right to look at the whole book, and, if yon find A-D- 1789«
the passages selected by the Attorney-General do not bear the
sense imputed to them, the defendant has a right to be acquitted,
and God forbid he should be convicted. You will always be guided
by this — that where the tendency is ambiguous and doubtful, the
inclination of your judgment should be on the side of innocence.
It is not for me to comment further upon the pamphlet : my
duty is fulfilled when I point out to you what the questions are
proposed for your determination ; the result is yours, and yours
only."
The jury, after two hours' deliberation, found a verdict of
NOT GUILTY ; but, according to the doctrine laid down unani-
mously by the Judges in the House of Lords, the defendant
ought certainly to have been convicted ; for the act of publica-
tion was admitted, and the technical innuendoes were proved ; so
that the acquittal proceeded upon the ground that the intention
of the pamphlet was fairly to discuss the merits of the impeach-
ment, not to asperse the House of Commons, or, in other words,
that the pamphlet was not a libel, the jury, with the consent of
the Judge, having exercised the power afterwards conferred on
juries by Mr. Fox's Libel Bill.*
When the French Revolution broke out, and the reign of His severe
terror began in England, I am sorry to say that Lord Kenyon JJJJweutkml
strongly abetted the system of repressing Jacobin principles by tor alleged
ill-advised prosecutions and cruel punishments, rather than by
amending our laws and by the mild and dignified administration
of justice. The first case which came before him, arising out
of the revolutionary movement, was an ex officio information
by the Attorney-General against Dufleur and Lloyd, two pri-
soners confined for debt in the Fleet Prison, charging them with
a conspiracy to escape and to subvert the Government, because
they had affixed upon the gate of the prison a paper contain-
ing the following ADVERTISEMENT : —
" This House to Let ; peaceable possession will be given on or Pasquinade
before the 1st of January, 1793, being the commencement of the against im-
first year of liberty in Great Britain."
* 22 St, Tr. 237-308.
VOL. III.
50 REIGN OF GEORGE III.
CHAP. This pasquinade against imprisonment for debt, composed
for the amusement of the debtors, the Chief Justice gravely
treated as a seditious libel ; and the defendants, being found
guilty, were sentenced to stand in the pillory.*
John Frost's The trial and punishment of John Frost, the attorney, were
still more discreditable. While in a coffeehouse, under the
excitement of wine, he was overheard to use some indiscreet
expressions respecting the French Republic and a monarchical
form of government. Notwithstanding an admirable defence
by Erskine, he was found guilty of sedition, and the senior
Puisne Judge having pronounced sentence " that he should be
imprisoned six months in Newgate, that he should stand on
the pillory at Charing Cross, and find sureties for his good
behaviour for five years," Lord Kenyon, C. J., added, with
great eagerness, " and also be struck off the roll of attorneys of
this Court," whereby he was to be rendered infamous and to be
irretrievably ruined, so that death really would have been a
milder sentence.f
The next political case which came before him was remark-
able as being the first prosecution for libel under Mr. Fox's
Libel Bill, and to the Chief Justice's shame it must be recorded
that he misconstrued and perverted this noble law, — establishing
a precedent which was followed for near half a century to the
manifest grievance of the accused.
Rex v. An information was filed by the Attorney-General against
ti16 proprietor and printer of the i Morning Chronicle ' for
publishing in that journal certain resolutions of a public meet-
ing held at Derby in favour of parliamentary reform and
against abuses in the government, based upon this principle : —
" That all true government is instituted for the general good,
is legalized by the general will, and all its actions are or ought
to be directed for the general happiness and prosperity of all
honest citizens."
Lord Kenyon (to the Jury) : u A great deal has been said by the
counsel for the defendants about parliamentary reform. Before I
would pull down the fabric or presume to disturb one stone in the
structure I would consider what those benefits are which it seeks.
I should be a little afraid that when the water was let out, nobody
22 St. Tr. 317-358. f Ib. 471-522.
LIFE OF LORD KENYON. 51
could tell how to stop it; if the lion was once let into the house. CHAP.
~X"T TV
who would be found to shut the door? — The merits or demerits of ^ ' .
the late law respecting the trial of libel I shall not enter into. It A.D. 1793.
is enough for me that it is the law of the land, which by my oath I
am bound to give effect to, and it commands me to state to juries
what my opinion is respecting this or any other paper brought
into judgment before them. When these resolutions appeared in the
newspaper of the defendants the times were most gloomy — the
country was torn to its centre by emissaries from France. It was a
notorious fact — every man knows it — I could neither open my eyes
nor my ears without seeing and hearing them. Weighing thus all
the circumstances — that the paper was published when those emis-
saries were spreading their horrid doctrines ; and believing there
was a great gloominess in the country — and I must shut my eyes
and ears if I did not believe that there was ; — believing also that
there were emissaries from France wishing to spread the maxims
prevalent in that country in this, — believing that the minds of the
people of this country were agitated by these political topics of
which the mass of the population never can form a true judgment,
and reading this paper, which appears to be calculated to put the
people in a state of discontent with everything done in this country,
— / am bound by my oath to answer that I think this paper was published Perversion
with a wicked, malicious intent to vilify the Government and to make the of the .
people discontented with the constitution under which they live. — This is ukd Bill
the matter charged in the information; — that it was done with a enabling the
view to vilify the constitution, the laws, and the government of this Jvegnis°
country, and to infuse into the minds of his Majesty's subjects a opinion to
belief that they were oppressed, and on this ground I consider it as a the JU17 on
gross and seditious libel. It is not sufficient that there should be law.
in this paper detached good morals in part of it unless they give an
explanation of the rest. There may be morality and virtue in this
paper; and yet, apparently latet anguis in herbd. There may be
much that is good in it, and yet there may be much to censure. I
have toH you my opinion. Gentlemen, the constitution has intrusted
it to you, and it is your duty to have only one point in view. — With-
out fear, favour, or affection, without regard either to the prosecutor
or the defendants, look at the question before you, arid on that decide
on the guilt or innocence of the defendants."
The Act of Parliament * only required the Judge to deliver
his opinion in point of law to the jury on the trial of libel " in
like manner as in other criminal cases," and therefore he was
* 32 Geo. III., c. 60, s. 2.
E 2
52
REIGN OF GEORGE III.
CHAP, only bound to tell the jury that if from the contents of the
• paper and the circumstances under which it was published it was
meant to vilify the government and constitution and to infuse
discontent into the minds of the people, it was in point of law a
libel, without taking upon himself as a matter of fact to deter-
mine that such was the intent.*
The jury, after two hours' deliberation, found a verdict of
GrUILTY OF PUBLISHING, BUT WITH NO MALICIOUS INTENT ; and
being told that this verdict could not be received, — after sitting
up all night, they next morning returned a general verdict of
NOT GuiLTY.f
When it was resolved to charge Hardy, Home Tooke, and
other reforming associates of Mr. Pitt with the crime of high
treason because they had steadily and zealously adhered to
the cause which he had deserted, the plan at first was that
they should be tried before Lord Kenyon in the Court of
King's Bench ; but some apprehension was entertained of his
intemperance of manner, and they were arraigned at the Old
A.D. 1976. Bailey before that quiet and safe Judge, Chief Justice Eyre.
But William Stone, the London merchant, who was very fairly
and constitutionally accused of " adhering to the King's ene-
mies " by writing letters inviting the French to invade England,
was tried at the King's Bench bar ; and the case being quite
unconnected with parliamentary reform or party politics of any
sort, Lord Kenyon presided on this occasion with great modera-
tion. He thus laid down the law : —
" If a communication is made to a government at war with Eng-
land which may tend to be of any assistance to that government in
annoying us or defending- themselves, such communication is beyond
all controversy high treason. It will be for the jury to look at the
papers given in evidence, and consider whether they were meant to
assist the French in the invasion of this country. This is what upon
my oath I am bound to state to you ; if I misstate it, I shall be cor-
rected by the learned Judges who sit near me ; and I shall not be
sorry to be interrupted if I state anything which renders inter-
ruption necessary, because it never comes too late when the blood of
* I myself heard a succeeding judge say, " The Act requires me to declare to
you my opinion in point of law, and I am clearly of opinion that this is a most
wicked, seditious, and diabolical libel."
t Hex t>. Perry and Lambert, 22 St. Tr. 953-1020.
stone is
treason
LIFE OF LORD KENYON. 53
a fellow-subject is at stake; but I am bound to do it: it is not a CHAP,
pleasant task ; but, thus circumstanced, unpleasant as the task is to •
any man of feeling, I must meet my situation and summon up
my fortitude as well as I can to discharge it as well as my faculties
will permit me."
The letters were very culpable, but Erskine raised a doubt in
the minds of the jury whether they had been written with any
treasonable intent, and after long deliberation there was a ver-
dict of not guilty*
When the trial came on of the very foolish prosecution moved 20th May,
by the Whigs in the House of Commons against John Reeve, ^rid'of
for a libel on the English constitution, because he had written John Reeve
that " monarchy is the trunk from which the two Houses of o^the* &
Parliament had sprung as branches," Lord Kenyon thus rather House of
, . . i , . Commons.
boastfully paraded his constitutional learning : —
" Sufficient knowledge of the constitution is a degree of know-
ledge which we all of us have in our several stations — at least every
body who has had a liberal education ; it is a knowledge we have
all of us probably about us — we all know that the legislature of this
country consists in the King, the Lords, and the Commons — that
the executive power rests with the King alone, liable to be super-
intended and to be corrected too by the two Houses of Parliament —
not to be corrected in the King's person, because that by the con-
stitution is inviolable, * the King can do no wrong ' — but to be cor-
rected in those ministers through whose agency active government
is carried on."
He thus concluded, making a new noun-substantive : —
" The quo-ammo which the prosecution imputes to the Defendant
is this, that he by this publication intended to raise and excite jea-
lousies and divisions among the liege subjects of our Lord the King,
and to alienate their affections from the government by King, Lords,
and Commons, now duly and happily established by law in this
country, and to destroy and subvert the true principles and the free
constitution of the government of the realm. The Attorney-General
says, the pamphlet intended to impress upon the public that the
regal power and government of this realm might, consistently with
the freedom of this realm as by law declared and established, be
carried on in all its functions by the King of this realm, although
the two Houses of Parliament should be suppressed and abolished.
* 25 St. Tr. 1155-1438.
54
REIGN OF GEOEGE III.
Trial of
Gilbert
Wakefield.
CHAP. This is the quo- ammo which is imputed to this person ; and you are
. to find whether your consciences are satisfied that these were the
A.D. 1796. motives which influenced him in the publication."
In substance this was a very sound direction ; and, notwith-
standing his recent construction of the late act of Parliament
in the case of Rex v. Perry, he abstained from telling the jury
whether in his opinion the pamphlet was a libel or not. The
jury said, " We are of opinion that the pamphlet is a very im-
proper publication, but that the defendant's motives were not
such as are laid in the information, and therefore we find him
NOT GUILTY." *
Lord Kenyon's extreme moderation in this case some ac-
counted for from the circumstance, that the sentiments contained
in the supposed libel agreed very much with his own. When
writers who had taken the other side of the question were pro-
secuted, he was more and more furious against them.
The very learned, though wrong-headed Gilbert Wakefield,
a clergyman of the Church of England, who said he was a Re-
former, like his divine Master, being prosecuted by the Attorney-
General as author of a pamphlet supposed to have a demo-
cratical tendency ; and being gallantly defended by Erskine,
who urged that a little indulgence might be shown to the eccen-
tricities of one of the finest scholars of whom England could
boast, Lord Kenyon thus summed up to the jury : —
" The Defendant has stated that his conduct is founded upon the
doctrines promulgated by the Saviour ; but surely he has this day
shown himself to be very little influenced by them. Such are not
the feelings and the conduct to which the Christian religion gives
birth. Ingenuas didicisse fideliter artes emollit mores is an expression
which has often been used, but the experience of this case shows
that it is not always correct."
The Defendant, speaking in mitigation of punishment, said —
" Carmina tantiim
Nostra valent, Lycida ! tela inter Martia quantum
Chaoiiias dicunt, aquila veniente, columbas."
Accordingly he was sentenced to two years' imprisonment in
Dorchester gaol, and to find sureties for his good behaviour
for five years longer.t
2G St. Tr. 529-59G.
t 27 St. Tr. 679-760.
LIFE OF LOKD KENYON. 55
Still more censurable was the conviction of Mr. Cuthill, a CHAP,
most respectable classical bookseller. Although he had pub- v— *, — '—>
lished Gilbert Wakefield's other works, he had declined to A.D. 1799.
publish this pamphlet because it was not in his line ; but when
it had been published by another bookseller, a few copies of it
were sold in the defendant's shop by his servant without his
authority or knowledge : —
Lord Kenyan. — " Before I enter upon the cause itself, I beg leave
to say, that I see no good in what has lately taken place in the
affairs of another country ; I see no good in the murder of an inno-
cent monarch ; I see no good in the massacre of tens of thousands
of the subjects of that innocent monarch ; I see no good in the abo-
lition of Christianity ; I see no good in the depredations made upon
commercial property ; I see no good in the overthrow and utter
ruin of whole kingdoms, states, and countries ; I see no good in the
destruction of the Swiss, a brave and virtuous people. In all these
things I confess that I see no good."
He then spoke very disparagingly of the late Libel Bill, saying
that he had strenuously opposed it as it passed through Par-
liament, adding —
" It was a race of popularity between two seemingly contending
parties ; * but in this measure both parties chose to run amicably
together."
Having stated that the evidence was abundantly sufficient to
fix the Defendant, he thus concluded : —
" If you think it is possible to keep government together with
such publications passing through the hands of the people, you will
say so by your verdict, and pronounce that this is not a libel ; but
in my opinion that would be the way to shake all law, all morality,
all order, and all religion in society. The point is most momentous
in this country, and you are now to determine upon it, and to say
whether the law is to be preserved, or whether everything should
be thrown into confusion."
The Defendant was immediately found guilty ; but the usage
he had experienced on his trial caused such scandal that he
was afterwards let off on paying a nominal fine.|
* Meaning Foxites and Pittites.
t In his violent address to the jury in this case Lord Kenyon alludes to the
state of affairs then subsisting in Europe, which, although it cannot justify his
56 REIGN OF GEOKGE III.
C HAP. The proprietor of the Courier newspaper did not escape so
\ v ' / easily, although his offence was equally venial. He had copied
4th March, mf;0 his journal a paragraph stating the undoubted truth, that
Trial of the Paul I., Emperor of Russia, had made himself odious and ridi-
of°theiet0r cul°us to his own subjects by forbidding the exportation of
Courier for timber and other Russian produce from his dominions to Great
tiieEmperor Britain. Erskine, for the Defendant, contended that the sup-
Paul, posed libel was a fair comment upon a tyrannical and foolish
act, and was meant to vindicate the rights of Englishmen, not
to insult foreigners.
Lord Kenyan. — " What could have induced the Princes of Europe
to the conduct some of them have pursued, I will not venture to
investigate ; but, sitting in a court of law, I am bound to say that
it does not absolve states from enforcing a decent respect to the
magistracies of each other, and to the persons of sovereigns executing
the law. All governments rest mainly on public opinion, and to
that of his own subjects every wise sovereign will look. Between
the sovereign and the people of every country there is an express or
implied compact for a government of justice. Yet the Emperor of
Russia is here said to be a transgressor of all law. In private life a
similar charge would be the foundation of an action for damages ;
and why is a great sovereign to be deprived of all remedy ? It is
for you, gentlemen of the jury, who come out of that rank which
enables you to judge of the interests of the commercial world, to
pronounce whether this is or is not a dangerous publication ? I
am bound by my oath to declare my own opinion, and I should
forget my duty if I were not to say to you THAT IT is A GROSS
LIBEL."
conduct in the trial of prosecutions for sedition, ought very much to mitigate the
censure with which it is to be visited. Nothing could be more unfair than to
judge him by the standard of propriety established in the quiet times in which
we live. With shades of difference among politicians as to the extension of the
franchise, vote by ballot, and the duration of parliaments, all the Queen's sub-
jects are attached to the constitution, and disposed to obey the law. Then there
was a small but formidable party, composed of some who sincerely believed that
for the public good all existing institutions should be abolished, and of others
recklessly desirous to bring about bloodshed and confusion, in the hope of grasp-
ing at wealth and power for themselves. The great body of the loyal and well
intentioned were then in a panic, and thought that the best course for safety
was to enact new penal laws, and visit with remorseless severity all those persons
from whom their fears had arisen. Lord Kenyon, I am convinced, on every
occasion was persuaded that he acted lawfully as well as conscientiously, and he
was regarded by many as the saviour of his country.
LIFE OF LOKD KENYON.
57
The Defendant was found Guilty, and reckoned himself lucky
to get off with six months' imprisonment, and a fine of 100/.*
On the trial of Williams for publishing 'Fame's Age of
Reason,' Lord Kenyon, in summing up, tried to rival Erskine's for pub-
famous address in defence of revealed religion :
" Christianity," said he, " from its earliest institution met with its °
opposers. Its professors were very soon called upon to publish
their ' Apologies ' for the doctrines they had embraced. In what Kenyon' s
manner they did that, and whether they had the advantage of their j|-spi*y °f
adversaries, or sunk under the superiority of their arguments, mankind ledge of ec-
for near two thousand years have had an opportunity of judging, clesiastical
They have seen what Julian, f Justin Martyr, and other apologists
have written, and have been of opinion that the argument was in
favour of those publications. We have heard to-day that the light
of nature and the contemplation of the works of creation are sufficient,
without any other revelation of the Divine will. Socrates, Plato,
Xenophon, Tully — each of them in their turns professed they wanted
other lights, and knowing and confessing that God was good, they
took it for granted the time would come when he would impart
another revelation of his will to mankind. Though they walked as
it were through a cloud, darkly, they hoped their posterity would
almost see God face to face."
The talesmen did not know which to admire most, the piety,
the learning, or the eloquence of the judge. The defendant was
very properly found guilty, and sentenced to a year's imprison-
ment with hard labour.J
I now come to a trial at which I was myself actually present 26th June,
— the prosecution of Hadfield. for shooting at George III. Triai'of
On the 28th of June, 1800, being yet a boy, for the first time Hadfield,
in my life I entered the Court of King's Bench, and with these
eyes I beheld Lord Kenyon. The scene was by no means so
august as I had imagined to myself. I expected to see the Kenyon.
Judges sitting in the great hall, which, though very differently
constructed for magnificence, might be compared to the Roman
Forum. The place where the trial was going on was a small
room enclosed from the open space at the south-east angle, and
here were crowded together the Judges, the jury, the counsel,
the attorneys, and the reporters, with little accommodation for
* 27 St. Tr. G27-642. f Sic. t 26 St. Tr. 653-720.
58 KEIGN OF GEOKGE III.
C HAJP. bystanders. My great curiosity was to see Erskine, and 1 was
*— y — -» amazingly struck by his noble features and animated aspect.
A.D. 1800. jyjitford, the Attorney-General, seemed dull and heavy; but
Grant, the Solicitor- General, immediately inspired the notion
of extraordinary sagacity. Law looked logical and sarcastic.
Garrow verified his designation of " the tame tiger." There
were five or six rows of counsel, robed and wigged, sitting
without the bar — but I had never heard the name of any of
them mentioned before. I was surprised to find the four
Judges all dressed exactly alike. This not being a Saint's day,
the Chief Justice did not wear his collar of SS to distinguish
him from his brethren.* There was an air of superiority about
him, as if accustomed to give rule, but his physiognomy was coarse
and contracted. Mr. Justice Grose's aspect was very foolish, but
he was not by any means a fool, as he showed by being in the
right when he differed from the rest.f Mr. Justice Lawrence's
smile denoted great acuteness and discrimination. Mr. Justice
Le Blanc looked prim and precise.
From the opening of the case by the Attorney-General, I
formed a very low estimate of the eloquence of the English bar ;
but when Erskine began the defence, he threw me into a phrensy
of admiration, and indeed I should have been fit for nothing had
I been less excited ; for this was perhaps his chef tfosuvre, and,
therefore, the finest speech ever delivered at the English bar.
Proof of the Lord Kenyon did not interpose till several witnesses had
distinctly proved the mental hallucination under which the
prisoner had laboured when he fired at the King. The solemn
proceeding was then thus terminated :
Lord Lord Kenyon. — " Mr. Erskine, have you nearly finished your
interferes evidence ?"
and puts an Mr. Erskine. — " No, my Lord, I have twenty more witnesses to
end to the examine."
trial.
Lord Kenyon. — " Mr. Attorney-General, can you call any witnesses
* This was written before I had taken my seat as Chief Justice ; and I had
erroneously supposed that the collar of SS is worn on saints' days, along with
the scarlet and ermine.
f " GROSE Justice, with his lantern jaws,
Throws light upon the English laws."
Complimentary Epigram by Erskine.
LIFE OF LOUD KENYON. 59
to contradict these facts ? With regard to the law as it has been C HAP.
laid down, there can be no doubt upon earth. To be sure if a man »- •
is in a deranged state of mind at the time he commits the act A.D. 1800.
charged as criminal, he is not answerable. The material question s°un(iyiew
of the ques-
is whether at the very time when the act was committed this man s mind was tion how
sane ? I confess that the facts proved convince my mind that at the f*r mental
time he committed the supposed offence (and had he then known what exempts
he was doing, a most horrid offence it was) he was in a very deranged from
state. Mr. Attorney-General, you have heard the facts given in
evidence. To be sure, such a man is a most dangerous member of
society, and it is impossible that he can be suffered, supposing his
misfortune to be such, to be let loose upon the public. But I throw
it out for your consideration, whether in this criminal prosecution it
is necessary to proceed farther. If you can show it to be a case by
management to give a false colour to the real transaction, then
assuredly the defence vanishes."
Mr. Attorney-General. — " I must confess I have no reason to
suspect that this is a coloured case. On the contrary, I stated that I
understood the prisoner had been discharged from the army upon
the ground of insanity. But the circumstances which have now
appeared were perfectly unknown to me."
Lord Kenyon. — "Your conduct, Mr. Attorney- General, has been
extremely meritorious. In the present posture of the cause, I will
put it to you whether you ought to proceed."
Mr. Attorney-General. — " Your Lordship will feel how much it
was necessary for me to wait until I should have some intimation on
the subject."
Lord Kenyon. — " It was necessary for us all to wait till the cause
had reached a point of maturity. The prisoner, for his own sake
and for the sake of society at large, must not be discharged. This
is a matter which concerns every one of every station, from the
King on the throne to the beggar at the gate. Any one might fall
a sacrifice to this frantic man. For the sake of the community, he
must somehow or other be taken care of, with all the attention
and all the relief that can be afforded to him."
Attorney-General. — "I most perfectly acquiesce in what your
Lordship has said."
Lord Kenyon. — " Gentlemen of the jury, the Attorney-General's
opinion coinciding with mine, I believe it is necessary for me to
submit to you whether you will not find that the prisoner at the
time he committed the act was not under the guidance of reason ?"
The jury finding accordingly, the prisoner was detained in
custody — somewhat irregularly, there being then no law to
60
REIGN OF GEORGE III.
CHAP.
XLIV.
2nd May,
1799.
Benjamin
Flower's
Dialogue
between
Mr. Clifford
and Lord
Kenyon on
moving for
a writ of
Habeas
Corpus.
authorise the detention, but the statutes 46 Geo. III., chapters
93, 94, were passed, legalizing the detention in this and all
similar cases.*
On this occasion Lord Kenyon conducted himself with great
propriety, laying down the sound rule which ought to prevail
where the defence to a criminal charge is insanity, and applying
that rule with promptness and precision to the facts which were
proved before him. — In the next case which I have to mention
he was very unfortunate, and he justly incurred considerable
obloquy.
Benjamin Flower, having published a paragraph in a
Cambridge newspaper of which he was proprietor, reflecting on
Dr. Watson, Bishop of Llandaff, complaint was made of it in
the House of Lords as a breach of privilege, and without any
summons or hearing of the party accused, it was voted a
libel, and he was ordered to be taken into custody by the
Serjeant-at-Arms. Accordingly he was arrested at Cambridge,
brought a prisoner to London, and produced at the bar. A
motion was then made that for this supposed offence he should
be fined 100/. and confined six months in Newgate.
Lord Kenyon supported the motion, and said there was no
ground for complaint on the score of severity, for if the libel had
been prosecuted in the King's Bench, the defendant would not
have got off with so slight a punishment.
After the defendant had lain some weeks in Newgate, he
applied for his liberation to the Court of King's Bench, by Mr.
Clifford, a descendant of the Cliffords Earls of Cumberland, —
when the following dialogue took place between the counsel and
the Chief Justice.
Mr. C. "I humbly move your Lordship for a writ of habeas
corpus, to be directed to the keeper of Newgate, commanding him to
bring into court the body of Benjamin Flower." C. J. " Is not
Mr. Flower committed by the House of Lords for a breach of
privilege ?" — Mr. C. " Yes, for a libel and breach of privilege." C. J.
" Then you know very well, Mr. Clifford, you cannot succeed.
This is an attempt which has been made every seven or eight years
for the last half century ; it regularly comes in rotation ; but the
attempt has always failed. You do riot expect to succeed ?" — Mr. C.
27 St. Tr. 1281- J 356.
LIFE OF LOKD KENYON. Gl
I do expect to succeed. I should not make this application CHAP.
unless I knew I could support it. My affidavit states, that Mr. Flower i " T ' .
is imprisoned in Newgate for a supposed libel on the Bishop of
Llandaff, that he is not conscious of having libelled the Bishop of
Llandaff or any one else, and that he has never been put upon his
defence." — C. J. " Does he swear that it is not a libel on the Bishop
of Llandaff ?" Mr. C. " He swears that he is not conscious that it
is a libel." — (7. /. " Another part of his affidavit is also false, that
he was not put upon his defence. I happened to be one of his
judges — I was in the House of Lords at the time. File your
affidavit, Sir, that your client may be prosecuted. You shall take
nothing by your motion."
The counsel, however, insisted on being heard, to argue the
question that the commitment was illegal, and at last Lord
Kenyon said, —
" If you will have it, take your writ. It will be of no use to you.
You move it merely by way of experiment, and without any view to
benefit your client ; I am very sure of that."
The defendant being brought up in custody of the keeper of loth June>
Newgate, Mr. Clifford complained bitterly of the language of
the Chief Justice when the rule was granted, and delivered a
very long address upon the illegality of the commitment, in-
terspersed with many sarcastic remarks on the House of Lords
and the modern nobility by whom it is filled.
Lord Kenyon. — " The learned counsel has drawn a picture of a Lord
monster established in power by the voice of the people, and then Keny°n's
doing a great many horrid things — among others filling the House Lord-
of Lords with a banditti. The learned counsel, it is true, did not Treasurer
use that word — but ' persons who supersede the ancient nobility of t
the country.' I happen to be one of that number : of myself I will nobility.
say nothing. But if we look back to the history of the country,
and consider who were made peers in former times, and what they
were whose descendants are now called ' the hereditary nobility of
the country ;' if we look back to the reign of Charles II., in the
letters which form the word CABAL, will the memory of the
learned counsel, who seems to think virtues and vices hereditary,
furnish him with the names of no persons who were then made peers,
although they were not very likely to devolve virtues on the succeed-
ing ages ? From what has passed, I am called upon to vindicate the
House of Lords. Their honour stands on so stable a ground, that
no flirting of any individual can hurt them. The public feels that
62
REIGN OF GEOEGE III.
CHAP.
XLIV.
Mr.
Clifford's
retaliation.
Lord
Kenyon laid
down the
true con-
stitutional
doctrine
since
affirmed
by Act of
Parliament
respecting
the power
of the two
Houses to
print and
publish.
its liberties are protected by the two Houses of Parliament. If ever
the time shall come that any malignant, factious, bad man shall
wish to overturn the constitution of the country, the first step he
will take, I dare say, will be to begin by attacking in this Court
one or both of the Houses of Parliament. But all such petty
attempts will have no effect upon the public mind ; they will only
recoil upon those who make them."
He then proceeded to lay down the sound rule that commit-
ments for contempt by either House of Parliament could not be
examined into by a Court of law, and the prisoner was re-
manded to Newgate.* Mr. Clifford published a report of the
case with a postscript, in which he said, —
" The hereditary boasts one advantage over new nobility ; from
the very cradle its children are formed to the stations which they
are destined afterwards to fill. Accordingly we seldom observe in
our hereditary peers those pedantic notions of impracticable morality,
or that boisterous impetuosity of manners, which sometimes accom-
pany and disgrace even in the highest situations those who have
been raised to them from the desk, merely on account of their
industry and professional success." f
Lord Kenyon was much more fortunate in supporting the
inquisitorial power of the two Houses of Parliament, and their
right to order the publication of whatever they think necessary
for the public service, although it may reflect upon individuals.
After Hardy, Home Tooke, and Thelwall had been tried for
high treason and acquitted, a committee of the House of Com-
mons was appointed to inquire into the condition of the country,
and made a Report to the House, stating that evidence was
adduced against them, showing " that they and their con-
federates were decidedly hostile to the existing government and
constitution of this kingdom, and wished for the subversion of
every established and legitimate authority." This Report was
ordered by the House to be printed, and was reprinted and
published by a bookseller. Against him an application was
made, on behalf of Home Tooke, to the Court of King's
* 27 St. Tr. 985-1078.
t This cousin of Lord-Treasurer Clifford was an admirable speaker, and
might have risen to the highest honours, but he died young from intem-
perance.
LIFE OF LOED KENYON. 63
C^ TT A "P
Bench, for a criminal information. The defendant made an XLIT
affidavit of the facts, and denied all malicious intention what-
soever. Erskine for the prosecution contended that the House
of Commons, though they might inquire, could not lawfully
publish the result of their inquiries to the detriment of any in-
dividual, and that at any rate the defendant could not justify
the republication of a libel for his own advantage, because it
had been published by the House of Commons on pretext .of
the good of the community.
Lord Kenyan (without hearing the other side). — " This is an
application for leave to file a criminal information against the de-
fendant for publishing a libel ; so that the application supposes that,
this publication is a libel. But the inquiry made by the House of
Commons was an inquisition made by one branch of the Legislature,
to enable them to proceed farther and adopt some regulations for the
better government of the country. This report was first made by a
Committee of the House of Commons, then approved by the House
at large, and then communicated to the other House ; there it is now
subjudice; yet we are told that it is a libel on the prosecutor. It is
impossible for us to admit that the proceeding of either of the
Houses of Parliament is a libel ; and yet that is to be taken as the
foundation of this application. The King v. Williams, so much
relied upon, was decided in the worst of times, and it has no applica-
tion to the present case. This is a proceeding by one branch of the
Legislature, and therefore we cannot inquire into it. I do not say '
that we would never inquire whether the House of Commons has
exceeded its jurisdiction ; but acting within its jurisdiction, it
cannot be controlled by us. An injunction by the House of
Commons to stay proceedings in a common action between two
individuals, we should treat as a nullity. But the House of Commons
having the right to print and publish what they consider essential
for public information, we cannot consider whether they have
exercised that right properly on any particular occasion, and the
individual who suffers from the exercise of it is without legal
remedy." — Lawrence, J. : " It is of advantage to the public, and even
to the legislative bodies, that true accounts of their proceedings
should be generally circulated, and they would be deprived of that
advantage if no person could publish their proceedings without being
punished as a libeller." *
Lord Kenyon, however, with great spirit and upon the soundest
* 8 T. R. 29?.
KEIGN OF GEORGE 111.
principles, would not suffer a peer under pretence of Parlia-
mentary privilege to libel a fellow subject with impunity.
The Earl of Abingdon, having quarrelled with his attorney,
delivered a most calumnious speech against him in the House of
Lords, and then published it in a newspaper. The attorney
to publish indicted him for publishing the libel.
delivered by The trial coming on before Lord Kenyon at Westminster,
him m the ^ne nOD}e defendant appeared in Court as his own counsel.
House or • r*
Peers, with He modestly abstained from claiming to sit on the bench with
HbcTanhi- tne Chief Justice, but, remaining at the bar, he strenuously
dividual. insisted on his right to be covered, because the Chief Justice
and he were both peers and entitled to the same privileges.
Lord Kenyon. — " I do not sit on this seat as a peer ; but being
assigned by our Lord the King, as his Chief Justice, to hold pleas
before him, out of respect to the Sovereign of these realms and to
the sovereignty of the law the noble Earl must be uncovered."
The trial proceeded, and it was clearly proved that Lord
Abingdon had sent his speech in his own handwriting to the
newspaper-office with a request that it might be published.
Being called upon for his defence, he contended that the pro-
secution could not be supported, as the alleged libel was
printed from the written speech which he himself had actually
read in his place in Parliament.
Lord Kenyon. — " Heaven forbid that we should seek to animadvert
here upon a speech made in Parliament. Parliament alone can in-
quire into the merits of a speech so made, and, if it deserves punish-
ment, punish the offender. We inquire not respecting what the noble
Earl did in the House of Lords, but what he did in Catherine-street
in the Strand, when by his agent he delivered a paper in his own hand-
writing containing most calumnious charges against the prosecutor,
and requested that it might be printed and published. This was the act
of a simple individual seeking to gratify his malice, and he is criminally
responsible for it, although he happens likewise to be an Earl."
The defendant was found guilty, and most justly sentenced
to imprisonment.*
* 1 Espinasse, 226. In the year 1843 I tried unsuccessfully to carry a clause
in my Libel Bill, to exempt from prosecution or action a true account of speeches
in Parliament published bond fide for the information of the public ; yet I have
been severely censured for not deciding as a Judge that neither prosecution nor
action can be maintained for a true account in a newspaper of anything said at
any public meeting. This would, indeed, have been " Judge-made law."
LIFE OF LORD KEN YON. 65
Lord Kenyon meritoriously checked the doctrine which was CHAP.
• T • I* i i (• XLI v .
becoming too rampant, that a man is liable for the conse- < , >
quences, however remote or unforeseen, which can be traced to Doctrine of
mi • *» i'ii • consequen-
his acts. 1 he proprietor of a theatre having brought an action tial damage.
against a critic for a libel on one of his performers, alleged in
the declaration that the defendant, " contriving to terrify and
deter a certain public singer called Gertrude Elizabeth Mara,
who had been retained by the plaintiff to sing publicly for
him, wrote and published a certain malicious paper, &c., by
reason whereof the said Gertrude Elizabeth Mara could not
sing without great danger of being assaulted and ill-treated,
and was prevented from so singing, and the profits of the
theatre were rendered much less than they otherwise would
have been." Madame Mara, being called as a witness, did
swear that on account of the obnoxious article she did not
choose to expose herself to contempt, and had refused to
sing.
Lord Kenyon [stopping the defendant's counsel] : " The injury
is much too remote to be the foundation of an action. An action
might equally be supported against every man who circulates the
bottle too freely and intoxicates an actor, per quod he is rendered
incapable of performing his part upon the stage. The loss here
arises from the vain fears and caprice of the actress. This action is
to depend, forsooth ! on the nerves of Madame Mara ! " *
He likewise did good service in discountenancing the rapacity Rescue of
of surveyors. One of these gentlemen insisted that he was *he P"?1"5
•7 from Sur-
entitled to 5 per cent, upon all the expenditure m erecting and veyors.
finishing a house for his trouble in paying the tradesmen's bills,
and called several witnesses to prove that this was the usual
charge of surveyors.
Lord Kenyon : " The plaintiff states in his declaration his demand
to be ' as much as he reasonably deserves ' for his work and labour.
Does he reasonably deserve to have this exorbitant demand ? As to
the custom attempted to be proved, the course of robbery on Bag-
shot Heath might as well be proved in a court of justice. It ought
not to be and it cannot be supported."
The Plaintiff was nonsuited.f
* Astley v. Harrison, Peake, 256. f Upsdall v. Stewart, Peake, 255.
VOL. III. F
66 KEIGN OF GEOKGE III.
CHAP. Lord Kenyon showed a very laudable zeal to repress the very
infamous practice of some fashionable journals in his time to
invent scandalous stories of persons in "high life." The
Morning Post published a paragraph referring to Lady Eliza-
^etli Lambert, a very beautiful and accomplished girl of seven-
facturers of teen, whose character was unspotted and whose manners were
irreproachable, stating that " she had made a faux pas with a
gentleman of the shoulder-knot." Lady Elizabeth brought an
action for this calumny, suing by her mother, the Countess
Dowager of Cavan, as her prochein amie. The defendant's
counsel tried to palliate the case on the ground of inadvertence
and misinformation, allowing that the young lady had never
displayed the smallest sign of levity, and had always been the
pride and joy of her friends.
Lord Kenyon : " It is seriously to be lamented that the very
many cases which are brought, some of them civil and some criminal,
should have no effect on persons who publish newspapers to stop the
progress of this which everybody complains of. If it is to be
stopped, it is to be stopped by the discretion, good sense, and forti-
tude of juries. Gentlemen, it is to you, and you only, that this
lady can look for redress ; and it is not her cause only which has
been this day pleaded before you — it is the cause of injured inno-
cence spread from one end of the kingdom to the other ; and there-
fore if this lady is not to be protected, nay, if ordinary damages are
to be given, and not such as shall render it perilous for men to
proceed in this way, we are in an unpleasant situation indeed, and
particularly so when we have heard it openly avowed in Court by
the proprietors and publishers of newspapers that their commodity
is not suited to the public taste unless capsicum is put into it — unless
it be seasoned with scandal. I do not believe that in all the cases
of libel ever canvassed, one so criminal as this is to be met with.
You, gentlemen, are bound to guard the feelings of this injured
lady; and what the feelings of injured innocence are every one
must feel who is not an apostate from innocence himself. You,
gentlemen, before you give your damages, will put yourselves into
the situation of this injured lady, asking yourselves if those whom
you are most bound by the laws of nature and of God to protect
had been insulted in a similar manner, what damages you would
have expected from a jury of your country."
The jury found a verdict for the plaintiff with 40007. damages.
LIFE OF LORD KENYON. 67
In actions for criminal conversation his ardent love of morality C H A P.
blinded his judgment, prevented him from distinguishing the < , — ->
merits of each particular case, and led him to confound the prin- Mis'ed
ciples of civil and criminal justice. On one occasion he said — love for
" My endeavours, I confess, to deter men from the enormous
crime of adultery have hitherto proved ineffectual. But judges and
juries are appointed to redress private and public wrongs ; we are
the guardians of the morals of the people, and we ought never to
relax in our efforts to prevent the commission of crimes which strike
at the root of religion and of domestic purity and happiness. It is
said here the defendant is not able to pay large damages, but this is
an aggravation of his misconduct. Is his poverty to tempt him to
injure unfortunate husbands ? but it will, if it enables him to do so
with impunity. I advise you to give ample damages, that the vice
may be suppressed."
In another case in which the wife of the plaintiff (as he knew
when he married her) was a wanton, it actually came out on
cross-examination that she not only painted her face, but that
she exposed her person most indecently : —
Lord Kenyan : " I see no ground here for cutting down the
damages. Such things as are imputed to the plaintiff's wife are not
uncommon among ladies of quality, and no mercy should be shown
to the defendant (General Gunning), who is an abominable, hoary,
degraded creature."
In the famous case of Howard v. Bingham, he said : —
" I had not been long in a court of justice before I felt that I
should best discharge my duty to the public by making the law of
the land subservient to the laws of religion and morality ; and
therefore, in various cases that have come before me, when I saw
a considerable degree of guilt, I have pressed the judgment of juries
to go along with me in enforcing the sanction of religion and
morality by the heavy penalties of the law ; and I have found juries
co-operate with me in trying how far the immorality of a libertine
age would be corrected by letting all parties know that they best
consult their own interest by discharging those duties they owe to
God and society."
Such speeches gained him great popularity with the vulgar,
but made the judicious grieve. Even Lord Eldon, when Chief
Justice of the Court of Common Pleas (although strongly
disposed to support him), said on the trial of an action for
seduction : —
F 2
REIGN OF GEORGE 'III.
CHAP.
XLIV.
Lord
Eldon's pro-
test against
Lord
Kenyon's
ultraism.
Lord
Kenyon's
indignation
at being
called a
" legal
monk."
" I gladly lay hold of this opportunity of disburdening my mind
of an opinion that has long lain heavily upon me, as it is directly in
opposition to the judgment of one of the most learned judges and
best of men that ever sat in Westminster Hall, a man to whom the
laws of this country and (what is of more consequence) the public
morals are as much indebted as to any man among the living or the
dead. But having offered this tribute to truth, I am bound by my
oath to give my own opinion, that, in a civil action of this nature,
the jury are bound by law to consider, in awarding the amount of
damages, not what may be an adequate punishment to the defendant
for his criminality, but what will be a sufficient compensation to the
plaintiff for the injury complained of."
Lord Kenyon likewise carried on a furious war against the
destructive vice of gaming, which he declared to be mischievously
prevalent in both sexes. He recommended that fashionable
gaming establishments should be indicted as common nuisances,
adding this threat, which is said to have caused deep dismay :
" If any such prosecutions are fairly brought before me, and
the guilty parties are convicted, whatever may be their rank
or station in the country, though they may be the first ladies
in the land, they shall certainly exhibit themselves in the
pillory."
This ungallant attack upon the fair sex roused a chivalrous
defence from the Earl of Carlisle, who described the sad
consequences arising from the tribunals of justice being oc-
cupied by "legal monks, utterly ignorant of human nature
and of the ways of men, who were governed by their own
paltry prejudices, and thought they must be virtuous in pro-
portion as they were coarse and ill-mannered."
Lord Kenyon cared nothing for any of these invectives*
except the imputation of being a " legal monk." This stuck to
him very fast, and he frequently complained of it. When
making any observation to the jury which he thought very
knowing as well as emphatic, he would say : —
" But, gentlemen, you will consider how far this is entitled to any
weight, coming from a legal monk ; for a great discovery has been
made, that the Judges of the land, who are constantly conversant
with business, who see much more of actual life on their circuits
and in Westminster Hall than if they were shut up in gaming-houses
and brothels, are only legal monks.1"
LIFE OF LORD KENYON. 69
On another occasion he said : — CHAP.
XLIV.
" Somebody tells us that the Judges are legal monks — that they v y '
know nothing of the world. What is the world ? It is necessary
to define terras, in order to know what the world is, and what is
meant by this knowledge of the world. If it is to be got by lounging,
like young men of fashion, about Bond-street, or at gaming-tables,
or at Newmarket, or in private houses of great men, or in brothels,
I disavow being acquainted with it. But surely something of what
may be called a knowledge of the world, quicquid AM ANT * ho-
mines, may be contained in courts of justice."
It is said that he went on addressing grand juries on the
circuit in this strain, till Lord Carlisle threatened to bring him
before the House of Lords for a breach of privilege.
His indiscreet impetuosity of manner and his want of tact By his hot
sometimes subjected him to the triumph of ribaldry and rude- ^etiaved
ness. In prosecutions for blasphemy, by at first interrupting into the
the defendant's counsel without reason, he was beaten, and he insolence.
afterwards allowed an open reviling of our holy religion, which he
ought peremptorily to have stopped. " Christianity is certainly
parcel of the law of England" in this sense, that openly to
insult its Divine Author is a misdemeanor which is punishable
when committed, and which Judges are justified in preventing.
Yet Mr. Stewart Kyd, who called upon the prosecutor to
produce " a certain book called the Bible," after one or two
small victories to which he was strictly entitled, was very im-
properly permitted to ridicule and stigmatize at great length
the most sacred truths of the Gospel.
On another occasion, John Home Tooke, taking advantage Lord
of the Chief Justice's hasty temper, succeeded in acting such a J^f
scene of insolence as no other Judge would have endured. At Kenyou
the Westminster election, in 1788, Mr. Fox, having a large £
majority on the poll, was returned as duly elected, but Home Tooke-
Tooke, the unsuccessful candidate, presented a petition against
him. This being referred to a select committee under the
Grenville Act, was voted " frivolous and vexatious." Mr. Fox
was thus entitled to his costs, which were taxed at 1987. 2s. Qd.,
and payment of this sum being refused, an action was brought
to recover it. The statute provided that, on the trial of such
* Sic.
70 KEIGN OF GEORGE III.
an acti°n> no evidence should be necessary or receivable beyond
the resolution of%the committee and the taxation of costs verified
by the signature of the Speaker of the House of Commons.
Home Tooke now appeared as his own counsel. Erskine, for
the plaintiff, that he might give his opponent no topics to dilate
upon, merely said, with his usual discretion, " I am forbidden
by the Act of Parliament to enter into any discussion of the
merits of this case, or anything relating to them. I will, there-
fore, merely put in the statutable evidence to entitle Mr. Fox
to your verdict for the sum of 198Z. 2s. 60?." This evidence he
gave in the course of two minutes, and said, " This, my Lord,
is my case."
Lord Kenyon, although he had been told that the defendant
was to attend as his own counsel and to make a " terrible
splash" said, in a sharp, contemptuous tone, "Is there any
defence?"
Home Tooke (taking a pinch of snuff, and looking- round the Court
for a minute or two) : " There are three efficient parties engaged
in this trial — you, gentlemen of the jury, Mr. Fox, and myself, and
I make no doubt that we shall bring it to a satisfactory conclusion.
As for the Judge and the Crier, they are here to preserve order ; we
pay them handsomely for their attendance, and, in their proper
sphere, they are of some use ; but they are hired as assistants only ;
they are not, and never were, intended to be the controllers of our
conduct. Gentlemen, I tell you there is a defence, and a very good
defence, to this action, and it will be your duty to give effect
to it."
He then began a long narrative of the last Westminster
election, and, without any interruption, had come to what he
called the financial part of it, stating that Lords of the Trea-
sury were expected to pay 200/. a piece, and those in higher
situations more, according to their salaries. At last, Lord
Kenyon burst out : —
" Mr. Home Tooke, I cannot sit in this place to hear great names
and persons in high situations calumniated and vilified — persons who
are not in this cause — persons who are absent, and cannot defend
themselves. A court of justice is not a place for calumny ; it can
answer no purpose ; you must see the impropriety of it, and it does
not. become the feelings of an honourable man."
H. T. (again taking snuff) : " Sir, if you please, we will settle
LIFE OF LORD KENYON. 71
this question between us now in the outset, that I may not be liable CHAP,
to any more interruptions."
C. J. : " Lord Lovat brought forward offensively the names of
persons of great respectability, and he was stopped by the House of
Lords. The Chancellor informed him that it was indecent to do so,
and that a man of his station ought to refrain from such things^
You are in the wrong path, Mr. Home Tooke."
H. T. : " I am persuaded that I shall be able very easily and very
shortly to satisfy you that I am not in the wrong path, and it is
more desirable that I should do so now, because it is the path which
I most certainly mean to pursue, and will not be diverted from.
You know (at least you ought to know), and I acknowledge, that if,
under the pretence of a defence in this cause, I shall wantonly and
maliciously say or do any word or thing which would be punishable
by the laws of the land, if said or done by me wantonly and mali-
ciously anywhere else, I shall be equally liable to prosecution and
punishment by the same laws and in the same manner for what I
shall say here. But, Sir (taking another pinch of snuff, and lowering
his voice, so as effectually to fix the attention of the audience), you
have made use of some words which I am willing to believe you
used in a manner different from their usual acceptation. You spoke
of calumniating and vilifying. Those words, Sir, usually include the
notion of falsehood. Now, I presume you, Sir, did not mean them
to be so understood. I am sure you did not mean to tell the jury
that what I said was false. By calumny you only meant something
criminatory — something injurious to the character of the person
spoken of — something that he would not like to hear, whether true
or false."
C. J. : " Certainly, Mr. Home Tooke ; certainly."
H. T. (with an affectation of good nature) : " Well, I thought
so ; and, you see, I was not desirous to take advantage of the words
to impute to you any wrong meaning or intention ; because, had you
really intended falsehood in the word calumny, your Lordship would
have grossly calumniated me. I have spoken nothing but the truth,
as, I believe, you know, and which I am able and willing to prove.
In one thing I go farther than you do, and am stricter than you are.
I think it hard that any persons, whether in a cause or out of a
cause, should at any time unnecessarily hear what is unpleasant to
them, though true. This rule I mean to observe. At my peril I
shall proceed, and I expect to meet with no farther interruption
from your Lordship."
Having thus gained a complete mastery over the Chief Justice,
he proceeded to waste the public time most shamefully, and to
72 KEIGN OF GEORGE III.
CHAP, make many observations which ought to have been stopped, and
with discretion and firmness might easily have been stopped, by
the Judge. Thus he ridiculed the prevailing notion of " the
independence of the Judges :" —
" When anything peculiarly oppressive is now a-days to be done,
we have always a clatter made about the judicial independence with
which we are now blessed. My own belief is, that the Judges are
now much more dependent on the Crown and much less dependent
on the people than in former times, and, generally speaking, they
were certainly more independent in their conduct. They then sat on
the bench, knowing they might be turned down again to plead as
common advocates at the bar ; and indeed it was no uncommon
thing in those days to see a counsel at the bar browbeaten and bullied
by a Chief Justice on the bench, who in a short time after was to
change places with the counsel and to receive in his own person the
same treatment from the other in his turn. Character and reputation
were then of consequence to the Judges, for if they were not well
esteemed by the public, they might be reduced to absolute destitution ;
whereas if they were sure of being well employed on returning to the
bar, dismissal from their poorly-paid offices was no loss or discredit,
and they might set the Crown at defiance. Now they are completely
and for ever independent of the people, and from the Crown they
have everything to hope for themselves and their families. Till the
corrupt reign of James II., no common law Judge was ennobled.
Chief Justices Coke and Hale, infinitely greater lawyers and abler
men than any of their successors in our time, lived and died com-
moners. Who was the first judicial Peer? the infamous Judge
Jeffreys. But in his campaign in the West, and on other occasions,
he had done something to deserve and to illustrate the peerage. Now
a-days the most brilliant apprenticeship to the trade of a Peer is to
carry a blue bag in Westminster Hall ! This suddenly leads to
riches, and the lawyer suddenly rich is made a Baron ; whereas the
fact of some particular individual of suspicious character being' all
of a sudden flush of money who was never known to have any
before, often in the good old times led to the certain detection of the
thief."
He then, to show how badly justice was administered, told a
long story of a prosecution which he had instituted against some
rioters at the Westminster election being defeated by the single
circumstance of his counsel having entered the court a few
minutes after nine in the morning, the Chief Justice having
ordered them all to be acquitted for want of prosecution. Mr.
LIFE OF LOKD KENYON. 73
Garrow here interposed, and by stating the true facts of the
case, showed that Mr. Tooke, his counsel, attorney, and wit-
nesses, had all been guilty of gross negligence, and that the
Chief Justice had shown upon that occasion great patience and
indulgence : —
H. T. : " There can be no doubt at all but that your Lordship
will always find some one in your own Court willing and ready to
get up and recommend himself to your favour by a speech in your
defence. I should have been surprised if it had not been the case
now ; but I must rather thank Mr. Garrow, for he has given me time
to breathe awhile,"
C. J. : " I want no defence, Sir ; I want no defence, no defence.
What has been said against me rather excites my compassion than
my anger. I do not carry about me any recollection of the trial
alluded to, or any of its circumstances."
H. T. : " I cannot say that I carry about me anything in consequence
of it. I carry about me something less, by all the money which it took
out of my pocket. Although Mr. Garrow has jumped up to con-
tradict me, the affair happened exactly as I stated it. I heard
him with much pleasure, for, as I said, I wanted to breathe. But
we may have a different House of Commons, to consist of the
real representatives of the people, of whom I may happen to
be one, and I pledge myself now that I will, in my place there,
call you, my Lord, to a proper account for your conduct that
day, and Mr. Garrow may reserve his justification of your Lord-
ship's conduct till that time, when I fear you will stand greatly in
want of it. Now, gentlemen, having proved to you how a Judge
may be made courteous and quiet, and maybe taught to confine him-
self to the discharge of his proper duties in this place, I shall conclude
by asking you, who alone have anything to do with the verdict,
whether you think it fair that I should pay the costs incurred by Mr.
Fox as candidate for Westminster, and you will well and truly try
that which is the true and the only issue between us."
C. J. : " Gentlemen, you are bound by your oaths ( well and truly
to try this cause,' and the question is, whether by the law of the land
the defendant is bound to pay the plaintiff this sum of 198/. 2s. 6d.
Now, gentlemen, by the law of the land, if the petitioner refuses to
pay the costs of an election petition, voted frivolous and vexatious,
when duly taxed as the Act directs, he may be brought before a court
of justice and compelled to do so. If you believe the evidence (which
is not contradicted), you have such a case before you, and you will
' well and truly have tried this cause ' by finding a verdict for the
plaintiff' for the sum demanded."
74 KEIGN OF GEOKGE III.
Nevertheless, several of the jury had been much captivated by
Home Tooke's eloquence, and they cared very little for the direc-
tion of a Judge who had suffered himself to be so insulted. There-
fore, it was not until after a struggle of four hours and twenty
minutes that they were induced to concur in finding a verdict for
the plaintiff.* If Lord Mansfield had presided on this occasion,
without ever having been angry or excited, he would have put a
speedy end to such attempts at ribaldry, and Home Tooke would
have left the court not only defeated, but disgraced.
I cannot justly conclude my notice of Lord Kenyon's judicial
of Lord decisions, without pointing out a few of them in which he was
enyon. egreonously wrong1. An application was made to the Court of
Criminal °. G, J & . .^
information King s .Bench tor a criminal information against the printer
°^ a newsPaPer- I*1 this newspaper had appeared the following
paragraph " of and concerning" the prosecutor, the then Earl of
Lonsdale, who, from being engaged in constant litigation with
all his neighbours, had the reputation of being " the greatest law
Lord in England " : —
" The painters are much perplexed about the likeness of the Devil.
To obviate this difficulty concerning His Infernal Majesty, PETER
PINDAR has recommended to his friend OPIE the countenance of
LORD LONSDALE."
Now, this impudent attack, however indecorous, was hardly
sufficiently grave to be made the foundation of a common action
or indictment, but was wholly unfit for the special interference
of the Court of King's Bench, — which is only to be invoked in
cases of real importance. Erskine accordingly thought that
he should laugh it out of Court : —
" The noble Earl can only apply to your Lordships from a sense
not of wounded character but of wounded beauty — spretce injuria formce.
There is no hidden malice in the writer — he does not recommend
that this portrait of the devil should be painted with horns."
Lord Kenyan : " The tongue of malice has never said that."
Erskine : " True, my Lord, and nothing could be meant but a
comparison of bodily appearance, without any insinuation that there
was a mental likeness. And here, my Lords, without any disrespect
to the noble prosecutor, I must be allowed to say that the paragraph
is not a libel on him, but on the devil. That great personage would
* 1 Townsend, 59.
LIFE OF LOED KENYON. 75
doubtless apply to your Lordships for protection had it not been for CHAP,
the maxim that < those who apply to your Lordships must come into
court with dean hands.1 Although Lord Lonsdale may reckon him-
self a very handsome man, he should recollect that to liken his
countenance to that of the devil is a high compliment. In appear-
ance he falls greatly short of the devil, and therefore he ought to
have been much flattered by the comparison. I would (though a
poor man), for the sake of my family, give Opie or Fuseli one hun-
dred guineas for a likeness of myself verifying the description of
his infernal majesty in Milton : —
* He above the rest
In shape and gesture proudly eminent,
Stood like a tower ; his form had not yet lost
All her original brightness, nor appeared
Less than archangel ruined, and the excess
Of glory obscured.'
" The devil was still handsome, even in the most unpromising
masquerade, when he had entered the body of a serpent. In ad-
dressing Eve, we are told ' pleasing was his shape and lovely.'
Why, then, should Lord Lonsdale be afraid that the devil depicted
with the features of his Lordship must excite disgust ? But, my
Lords, the paragraph is mere pleasantry, quite unsuited to your
Lordships' notice."
Lord Kenyon : "I am of opinion that we should protect the cha-
racters of individuals from ridicule and contempt. We must abide
by the rules which the Court has laid down, and not be led away
by the brilliancy and imagination of an advocate. Let the rule be
made absolute."
The puisnes, who had not been consulted before this judg-
ment was pronounced, looked aghast. From their demeanour
during Erskine's speech they were supposed to be on his side,
but they remained silent.
In Haycraft v. Creasy Lord Kenyon was very properly over- Lord
ruled by his brother judges, and the mortification which he suffered
was supposed to have occasioned his death. The action was Haycraft
brought by a shopkeeper against a credulous old gentleman for
having given a deceitful representation of the character and
circumstances of a young lady of the name of Robinson, whereby
the plaintiff had been induced to sell to her a large quantity of
goods on credit, the price of which he had lost. The defendant
having, like many others, been deceived by her arts, and really
76 KEIGN OF GEOEGE III.
CHAP, believing that what he said was true, told the plaintiff that she
was a lady of great fortune and heiress of the estate of Fascally,
in the county of Perth, and that she was not only respectable
herself, but nearly connected with some of the highest families
in Scotland. In truth, she was a mere adventuress, and swindled
all that would trust her. Law, for the defendant, contended
that the action could not be maintained, as there was no mala
fides to support it, and to make him liable without actual deceit
w^uld be to treat him as surety for Miss Robinson without any
written guarantee.
Lord Kenyan: "The Attorney- General relies on the Statute of
Frauds. To this I shortly reply by saying that the Statute of Frauds
has nothing to do with this case. The defendant is sued, not as
surety for Miss Robinson, but for stating respecting her that which
was not true, and which he had the means of knowing, and must be
supposed to have known, was not true, whereby a damage has been
suffered by the plaintiff. If the present action cannot be supported,
I have now for twelve years been deceiving the people of this
country. Am I now, when perhaps from years the progress of my
intellect may be retrograde, to unsay what I have said so often ?
Where can I go to hide my head if this point should now be decided
otherwise ? What can I say to the people of this country ? The
ground I go upon is this : Did the defendant assert to be true that
which he did not know to be true ? This I consider sufficient evi-
dence to support the charge of fraud. It may not amount to moral
turpitude, but it is, in my opinion, sufficient to constitute legal
fraud, and legal fraud is, in my opinion, enough to support an
action of deceit."
Grose, Lawrence, and Le Blanc, Js., however, on the
assumption that the defendant was a dupe, clearly held that he
could not be made liable in this form of action, which supposed
that the defendant had stated what he knew to be false, or that,
from some bad motive, he had stated as true facts which were
untrue, and the truth of which had not been investigated. As
his brethren proceeded seriatim in this strain, the Chief Justice's
face showed the most terrible contortions ; and when they had
finished he exclaimed : —
" Good God ! what injustice have I hitherto been doing ! What
injustice have I been doing ! "
LIFE OF LOED KENYON. 77
A gentleman who witnessed the scene, says : —
" It was visible to every person in court that this ejaculation was
not uttered in the penitent voice of regret for any injustice which he
might unconsciously have done from a mistake of the law, but in
the querulous tone of disappointed pride, from finding that the other
judges had presumed to think for themselves, and to question the
supremacy of his opinion." *
No case of witchcraft having ever come before Lord Kenyon, Lord
we do not certainly know his opinions upon this subject, but he
was probably sufficiently enlightened to have held that the sta- forestalled
tutes against it having been all expressly repealed, it .could not graters.
be dealt with by the criminal courts as a temporal offence. He
was, however, enthusiastically devoted to the doctrine that,
although the statutes against forestalling and regrating had " in
an evil hour " been all expressly repealed, any such offence was
still a misdemeanor at common law, and deserved to be punished
with exemplary severity. Dearth in bad seasons he imputed to
the combinations of farmers and the speculations of corn-
merchants. Buying provisions to resell to the consumers he
allowed to be legitimate commerce, as the farmer could hardly
sell the produce of his farm by retail ; but any buying of pro-
visions with a view to resell to a dealer at an advanced price he
declared had a direct tendency to deprive the poor of the neces-
saries of life, and therefore " blinked upon murder." The
notion that the price of commodities is regulated by the propor-
tion between the supply and the demand, he thought was only
fit to be entertained by democrats and atheists. These senti-
ments were at the time highly popular, and contributed to raise
his reputation as a great judge.
The first case in which he prominently propounded them was
the King v. Waddington,t in which he granted a criminal in-
formation against the defendant for entering into forehand
bargains with hop-growers to buy from them at a fixed price all
the produce of their hop-gardens for a year. After a verdict
of guilty, the defendant was brought up for judgment, and the
legality of the conviction being questioned, Lord Kenyon said: —
" It has been contended that if practices such as those with which
the defendant stands charged are to be deemed criminal and punish-
* Note-book of a Ketired Banister. f 1 East, 143, 166.
78 REIGN OF GEOEGE III.
CHAP, able, the metropolis would be starved, as it could not be supplied
by any other means. I by no means subscribe to that position. I
know not whether it be supplied from day to day, from week to
week, or how otherwise ; but this is to me evident, that in whatever
manner the supply is made, if a number of rich persons are to buy
up the whole or a considerable part of the produce from whence
such supply is derived, in order to make their own private and exor-
bitant advantage of it to the public detriment, it will be found to be
an evil of the greatest magnitude ; and I am warranted in saying
that it is a most heinous offence against religion and morality, and
against the established law of the country. So far as the policy of
this system of laws has been called in question, I have endeavoured
to inform myself as much as lay in my power, and for this purpose
I have read Dr. Adam Smith's work, and various other publications
upon the same subject, though with different views of it. I do not
pretend to be a competent judge in this conflict of public opinion,
though I cannot help observing that many of those who have written
in support of our ancient system of jurisprudence, the growth of the
wisdom of man for so many ages, are not, as they are alleged by
some to be, men writing from their closets without any knowledge
of the affairs of life, but persons mixing with the mass of society and
capable of receiving practical experience of the soundness of the
maxims they inculcate."
The defendant was punished by imprisonment and a heavy fine.
But Lord Kenyon's most elaborate and most applauded attack
against forestallers and regraters was on the trial of an eminent
corn-merchant of the name of Rusby, who stood indicted before
him at Guildhall, for having bought a quantity of oats, and
having resold them to another corn merchant at a profit in the
course of the same day. Thus, in a most impassioned tone, and
with an assumption of peculiar solemnity, he summed up the
evidence : —
" It frequently becomes the duty of juries in this place to decide
causes where the interests of individuals are concerned, but a more
important duty is imposed upon you to-day. This cause presents
itself to your notice on behalf of all ranks, rich and poor, but more
especially the latter. Though in a state of society some must have
greater luxuries and comforts than others, yet all should have the
necessaries of life ; and if the poor cannot exist, in vain may the
rich look for happiness or prosperity. The legislature is never so
well employed as when they look to the interests of those who are
at a distance from them in the ranks of society. It is their duty to
LIFE OF LOED KENYON. 79
do so ; religion calls for it ; humanity calls for it ; and if there are C HAP.
hearts not awake to either of those feelings, their own interest would
dictate it. The law has not been disputed ; for though in an evil
hour all the statutes which had been existing above a century were
at one blow repealed, yet, thank God, the provisions of the common
law were not destroyed. The common law, though not to be found
in the written records of the nation, yet has been long well known.
It is coeval with civilised society itself, and was formed from time
to time by the wisdom of mankind. Even amongst the laws of the
Saxons are to be found many wise provisions against forestalling
and offences of this kind ; and those laws laid the foundation of our
common law. Speculation has said that the fear of such -an offence
is ridiculous ; and a very learned man — a good writer — has said,
' you may as well fear witchcraft.' I wish Dr. Adam Smith had
lived to hear the evidence of to-day, and then he would have seen
whether such an offence exists, and whether it is to be dreaded. If
he had been told that cattle and corn were brought to market, and
there bought by a man whose purse happened to be longer than his
neighbour's, so that the poor man who walks the streets and earns
his daily bread by his daily labour could get none but through his
hands, and at the price he chooses to demand ; that it had been
raised 3d., 6d., 9d., Is., 2s., and more a quarter on the same day,
would he have said there is no danger from such an offence?
Gentlemen, we are not ' legal monks/ as was said in another place,
but come from a class of society that, I hope and believe, gives us
opportunities of seeing as much of the world, and that has as much
virtue amongst its members as any other however elevated. It has
been said that in one county — I will not name it — a rich man has
placed his emissaries to buy up all the butter coming to the market ;
if such a fact does exist, and the poor of that neighbourhood cannot
get the necessaries of life, the event of your verdict may be highly
useful to the public." *
A verdict of guilty being instantly pronounced, Lord Kenyon
said — " Gentlemen, you have done your duty, and conferred a
lasting obligation on your country." The Defendant was sen-
tenced to a heavy fine and long imprisonment.
The cry was then as strong for protection against forestallers
as it has more recently been for protection against foreign im-
portation ; and so general was the agitation that corn -merchants
were in great danger of being torn to pieces by judge-led mobs.
I am ashamed to say that most of the puisne judges participated
* Peake, N. P. Cas. 189.
80 REIGN OF GEORGE III.
CHAP, in the hallucination of the Chief Justice of the King's Bench,
insomuch that Sydney Smith thus wrote in his old age : —
" This absurdity of attributing the high price of corn to the com-
binations of farmers and the dealings of middle-men was the common
nonsense talked in the days of my youth. I remember when ten
judges out of twelve laid down this doctrine in their charges to the
various grand juries on their circuits."
LIFE OF LORD KEN YON. 81
CHAPTER XLV.
CONCLUSION OF THE LIFE OF LORD KENYON.
LORD KENYON had been very temperate in his diet, and had CHAP.
enjoyed uninterrupted health till he entered his 70th year. He
then began to show symptoms of decay, which some attributed Lord
to his defeat in Haycraft v. Creasy, and some to the dangerous
illness of his eldest son. The Chief Justice was exceedingly to close-
amiable in all the relations of domestic life, and to this pro-
mising young man, who was expected to be the heir of his vast
accumulations, he was particularly attached.
In the autumn o'f 1801, there was imposed upon him the A.D. 1801.
melancholy duty of closing the eyes of him from whom he had j^eWeJt
expected that the pious office would be performed for himself. son-
When gazing into the open tomb of his first-born, he is said to
have exclaimed — " It is large enough for both."
On the first day of next Michaelmas term the Chief Justice Lord
returned to his court a sorrow-stricken, heart-broken man. He PfTJ?*'8
last illness.
was hardly able to hold up his head ; not even a " regrating "
case from the Oxford Circuit could excite him ; and as soon as
term was over, leaving the Nisi Prius business to be done by
Mr. Justice Le Blanc, he went into Wales, in the hope of being
recruited by the air of his native mountains. He rallied a little,
and came back to London on the approach of Hilary Term ;
but he was only able to take his seat in court for a single day.
As a last resource he was advised to try the waters of Bath.
All would not do. The appointed hour for the termination of
his career was at hand. He had now an attack of black jaun-
dice, and it was found that his constitution was entirely ex-
hausted. For several weeks he lay in bed, taking hardly any
sleep or nourishment. However, he suffered little pain ; and A.D. 1802.
having retained his mental faculties to the last, on the 4th of
April, 1802, he expired, perfectly resigned to the will of God,
and gratefully expressing his sense of the many blessings which
he had enjoyed. His remains were conveyed to the family ceme-
VOL. III. G
82
IlEIGN OF GEOKGE III.
CHAP.
XLV.
His epitaph.
Touching
praise of
him by his
second son.
Character
of Sir
Leoline
Jenkins
applied to
him.
Discrimina-
tion re-
quired in
his bio-
grapher.
tery in the parish of Hanmer, and there deposited in the same
grave with those of his beloved son. A splendid monument has
been erected to his memory, containing a minute enumeration of
his offices, and of his virtues. But a more simple and touching
tribute to him was paid in a letter from his second son, — to
whom descended with his title his more amiable qualities : —
" He has left a name to which his family will look up with affec-
tionate and honest pride, and which his countrymen will remember
with gratitude and veneration as long as they shall continue duly to
estimate the great and united principles of religion, law, and social
order ; no Welshman ever exhibited more eminently two traits of
Cambria — warmth of heart and sincerity of character."
Anxious to suppress nothing that has been said in his praise,
I add that the following character of his countryman, the learned
civilian Sir Leoline Jenkins, was declared by a respectable writer
to be equally applicable to the Cambrian Chief Justice of Eng-
land : —
" Impartial in the administration of justice, without respect of
persons or opinions, he was not only just between man and man in
all ordinary cases, but also where his intimate friend, his patron, his
enemy, or his own interest interfered ; for in a word, he seemed to
have loved justice as his life and the laws as his inheritance, and acted
as if he always remembered whose image and commission he bore,
and to whom he was accountable for the equity of his decrees. He
was a man of excellent piety and unaffected devotion ; he did not use
his religion as a cloak to cover or keep him warm, but was early
acquainted with religious principles and practices, and through the
whole course of his life he was a serious and sincere Christian, of a
strong and masculine piety, without any mixture of enthusiasm or
superstition."
I must, however, in the discharge of my duty as a biographer,
discriminate between his merits and his defects, and having done
so, I can by no means consent to his being placed in the first
rank of English Judges. That he was a truly religious and
strictly moral man, might equally have been said of him had he,
according to his original destination, spent his life as an attorney
at Nantwich. When placed at the head of the common law as
Chief Justice, he did, in the midst of some grumbling and sneer-
ing, command a considerable portion of public veneration. He
was not only devoted to the discharge of his public duties and
LIFE OF LORD KENYON. 83
zealously desirous to do what was right, but his quickness of CHAP,
apprehension and his professional knowledge generally enabled v t >
him to come to a rapid and a sound decision in the various cases
which he had to adjudicate. But he was far from being a
scientific jurist ; he could very imperfectly explain the rule of law
by which he was governed, and when in private he was asked
for his reasons, he would answer, " I vow to God that it is so."
He is said to have been a great favourite with common juries, His popu-
and, according to the slang of Westminster Hall, always to have £aauuo*
carried off the verdict* This was said to be because " he never juries.
fired over their heads, and he knew how to hit the bird in the
eye." But he never combated the prejudices of the jury. He His ill-
even encouraged that universal prejudice of the lower orders attorneys.
against attorneys, by which I have frequently seen the adminis-
tration of justice perverted. Although bred in an attorney's
office and long aspiring no higher than to be an attorney, he
seemed to think the whole order pettifoggers, and their occupa-
tion almost necessarily disreputable. Instead of restricting his
animadversions to peccant individuals, he extended an angry
suspicion to a whole class, containing many men as honourable
as himself, and much his superiors in education and manners.
He talked of striking an attorney off the roll as he might of dis-
missing a footman who had offended him. A naval officer
having been arrested at a ball, Lord Kenyon at once jumped to
the conclusion that this must have been by the orders of the
plaintiffs attorney, saying that " it must be matter for consider-
ation whether a practitioner who had so misconducted himself
ought to remain on the rolls of the court." When a trial, ex-
pected to last the whole day, had unaccountably gone off, so that
the following causes were struck out, the attorneys not having
their witnesses in attendance, he advised that actions should be
brought against all the attorneys for negligence.
" His hatred of dishonest practices," says a barrister who at-
* i. e. that juries found upon the facts according to the opinion which he
intimated to them. " His very failings won their liking ; his prejudices were
theirs ; they with him loved to detect some knavish trick in an attorney ; with
him they held in pious horror the fashionable vices of the great, and the faults
in his address against taste and correct idiom were beauties in their ears."
Townsend, vol. i. p. 65.
G 2
84
KEIGN OF GEORGE III.
CHAP.
XLV.
Ruin of
Mr. Law-
less.
Lord
Kenyon
serviceable
in repress-
ing petti-
fogging.
tended his Court, " had lit up a flame of indignation in his breast,
but it was an ignis fatuus which led him into error. He gave too
easy credit to accusation, and formed an opinion before he suffered
his judgment to cool. He decided while under the influence of a
heated temper, and often punished with unreflecting severity. The
effect of this intemperate mode of administering justice my memory
recalls with painful recollection in the case of a Mr. Lawless, an
attorney and an honourable member of that profession. He was in-
volved in the general and groundless proscription of the day. Com-
plaint was made to the Court against him for some imputed miscon-
duct, grounded on an affidavit which the event proved was a mass of
misrepresentation and falsehood ; but it being on oath and the
charges serious, it was thought sufficient to entitle the party applying
to a rule to show cause why Mr. Lawless should not answer the
matters of the affidavit. Natural justice would point out, and the
practice of the Court was conformable to it, that he should be heard
in answer before he was convicted. For that purpose a day is given
by the rule on which the party is to show cause, during which time
everything is considered as suspended. This indulgence was refused
to Mr. Lawless. Lord Kenyon, in addition to the common form of
the Court's assent to the application ' take a rule to show cause,'
added, ' and let Mr. Lawless be suspended from practising until the
rule is disposed of.' He happened to be present in Court when this
unexampled judgment was pronounced, and heard the sentence which
led to his ruin. He rose in a state of the most bitter agitation : ' My
Lord, I entreat you to recall that judgment ; the charge is wholly
unfounded ; suspension will lead to my ruin ; I have eighty causes
in my office.' What was Lord Kenyon' s reply to this supplicatory
appeal to him? ' So much the worse for your clients, who have em-
ployed such a man ! You shall remain suspended until the Court
decides on the rule.' The rule came on to be heard at a subsequent
day after the affidavits on the part of Mr. Lawless had been filed.
The charges against him were found to be wholly without foundation,
and the rule was accordingly discharged. Mr. Lawless was restored
to his profession, but not to his character or peace of mind. He sank
under the unmerited disgrace, and died of a broken heart." *
But although individuals might suffer from his precipitancy,
Lord Kenyon's strong dislike of chicanery had a salutary effect
upon the practice both of attorneys and barristers. Sham pleas,
which had become much multiplied, were, by a threat to ask
who had signed them, restrained to " judgment recovered," or
Townscnd, vol. i. p. G5.
LIFE OF LORD KENYON. 85
" a horse given in satisfaction," and the misrepresentation of CHAP.
authorities in arguments at the bar was checked by a proposed
rule of Court, requiring that "all cases should be cited on
affidavit."
I ought gratefully to record that he was very kind to the His kind-
students who attended the Courts. I cannot say that I ever students.
heard (with one exception) of his inviting any of us to dinner,
but I have a lively recollection that our box being near the
bench at Guildhall, — while the counsel were speaking he would
bring the record to us and explain the issues joined upon it
which the jury were to try.*
When placed at the head of the common law Lord Kenyon He is
affected to talk rather contumeliously of the Equity Courts. A
suitor against whom he had decided, threatened to file a bill of for dis-
discovery. " Go to Chancery ! " exclaimed the Chief Justice,
" Abi in malam rem" Lord Thurlow meeting him soon after, of Chancery
said to him, " Taffy, when did you first think that the Court of tors.
Chancery was such a mala res? I remember that you made a very
good thing of it. And when did solicitors become so very odious
* The following anecdote I have heard related of Lord Kenyon by and before The
very decent people, and it ought not to be lost, as it illustrates his character and student's
the manners of the age in which he flourished. In those days retiring-rooms ml*~°°t™e
for the use of the Judges were unknown, and a porcelain vase, with a handle Q^gf
to it, was placed in a corner of the Court at the extremity of the bench. In Justice's
the King's Bench at Guildhall the students' box (in which I myself have often porcelain
sat) was very near this corner. One day a student who was taking notes, vase.
finding the ink in his little ink-bottle very thick, used the freedom secretly to
discharge the whole of it into my Lord's porcelain vase. His Lordship soon
after having occasion to come to this corner, he was observed in the course of a
few moments to become much disconcerted and distressed. In truth, disco-
vering the liquid with which he was filling the vase to be of a jet black colour,
he thought the secretion indicated the sudden attack of some mortal disorder.
In great confusion and anguish of mind he returned to his seat and attempted
to resume the trial of the cause, but finding his hand to shake so much that he
could not write, he said that on account of indisposition he was obliged to
adjourn the Court. As he was led to his carriage by his servants, the luckless
student came up and said to him, " My Lord, I hope your Lordship will excuse
me, as I suspect that I am unfortunately the cause of your Lordship's appre-
hensions." He then described what he had done, expressing deep contrition
for his thoughtlessness and impertinence, and saying that he considered it his
duty to relieve his Lordship's mind by this confession. Lord Kenyon : " Sir,
you are a man of sense and a gentleman — dine with me on Sunday."
Lord Ellenborough pursued the same practice. I myself have often heard
his large seals dangling from his watch-chain rattle against the vase, as he took
it in his hand coram populo, decorously turning his back upon them.
86 KEIGN OF GEORGE III.
C HAP. as I am t^d yOU now represent them ? When they gave you
« - r— ' briefs you did not treat them as such atrocious ruffians."
We have nothing to say of Lord Kenyon as an orator or
statesman more than as a philosopher. He had no high opinion
of Mr. Pitt, to whom he was indebted for his elevation— and he
complained that this leader, even after being in office, pro-
fessed a love for parliamentary reform, and actually carried
Lord through Fox's Libel Bill. He declared that he himself was
eulogyon a l°yal subject — not a political partisan. He expressed the
George in. most unbounded admiration of the character of George III.
This he made the subject of his constant eulogy in his addresses
to grand juries on the circuit — and, it being contrary to eti-
quette for the bar to be present on these occasions, so that the
same address may be constantly repeated, he used to sound the
royal praises nearly in the same language, and always to conclude
with this quotation from Scripture — " Our good King may say
_ with Samuel of old, 'Whose ox have I taken? Whose ass
His opinion have I taken ? Whom have I defrauded ? " In consequence
! °^ this warm attachment, George III. had a high opinion of
respecting Lord Kenyon, notwithstanding the jokes about his bad Latin
question. and his bad temper, and the subject of Catholic Emancipation
arising, addressed to him the following letter : —
" Queen's House, March 7, 1795.
" The question that has been so improperly patronized by the
Lord Lieutenant of Ireland seems to me to militate against the
Coronation Oath and many existing statutes. I have therefore stated
the accompanying queries on paper, to which I desire the Lord
Kenyon will, after due consideration, state his opinion, and acquire
the sentiments of the Attorney- General on this most important
subject."
The following was the reply : —
" Lord Kenyon received your Majesty's commands when he was
in the country. He came immediately to town, and encloses what
has occurred to him on the question. He has conferred with the
Attorney-General, arid believes there is not any difference in opinion
between them. They are neither of them apprized what was the
extent of the alteration meditated to be made in Ireland.
" Your Majesty's most obliged and dutiful subject,
" KENYON."
" So long as the King's supremacy and the doctrine, discipline,
LIFE OF LORD KENYON. 87
and government of the Church of England are preserved as the CHAP.
National Church, and the provision for its ministers kept as an
appropriated fund, it seems that any ease given to sectarists would
not militate against the Coronation Oath or the Act of Union.
Though the Test Act appears to be a very wise law, and in point of
sound policy not to be departed from, yet it seems that it might be
repealed or altered without any breach of the Coronation Oath or
Act of Union."
Another interrogatory came from his Majesty to the Chief
Justice : —
" The King is much pleased with the diligence shown by the
Lord Kenyon in answering the question proposed to him, and wishes
his further opinion on the state of the question in Ireland, as drawn
up by a Right Reverend Prelate of that kingdom, and on the
Petition of the Roman Catholics."
The response was rather oracular: —
" The Petition expresses apprehensions of ' proscription, persecu-
tion, and oppression.' All grounds of such apprehensions, if such
there really are, may be safely removed, — if the late benefits which
the Petition admits have not removed them, — without endangering
the Established Church or violating the Coronation Oath."
It was greatly to the credit of Lord Kenyon that he went so
far in combating the mischievous notions that had been infused
into the royal mind, and if the opinion then expressed had been
acted upon at the time of the Irish Union, it would have saved
a world of woe to the empire.
Lord Kenyon, like all the other judges of his day, highly Lord
approved of the severity of the penal code, and would have
thought the safety of the state endangered by taking away the Penal code»
•f 1 L f f r . but not a
capital sentence from forgery, — or from stealing to the amount "hanging
of five shillings in a shop. Yet he was not such a " hanging Judse-"
judge " as some of his colleagues. A barrister * once related
the following anecdote in a debate in the House of Com-
mons : —
" On the Home Circuit a young woman was tried for stealing to
the amount of forty shillings in a dwelling-house. It was her first
offence, and was attended with many circumstances of extenuation.
The prosecutor came forward, as he said, from a sense of duty ; the
witnesses very reluctantly gave their evidence ; and the jury still
* Edward Morris, Esq., afterwards a Master in Chancery.
88 REIGN OF GEORGE III.
CHAP, more reluctantly their verdict of guilty. The Judge passed sentence
i ' . of death. The unhappy prisoner instantly fell lifeless at the bar.
Lord Kenyon, whose sensibility was not impaired by the sad duties of
his office, cried out in great agitation from the bench, ' I don't mean
to hang you ! will nobody tell her I don't mean to hang her ? ' I
then felt, as I now feel, that this was passing sentence not on the
prisoner, but on the law."
Specimen Lord Kenyon very seldom wrote his judgments. In delivering
them his language was sometimes forcible, but arranged without
mlxedmeta- *ne s^gntest regard to the rules of composition. In spite of the
phors. softening efforts of his reporters in harmonizing his mixed me-
taphors, we have specimens of his style preserving a great share
of its raciness. Thus he fortifies one of his favourite maxims,
whicb Lord Eldon says was constantly in his mouth, Amo stare
supra antiquas vias* — " If an individual can break down any of
those safeguards which the constitution has so wisely and so
cautiously erected, by poisoning the minds of the jury at a time
when they are called upon to decide, he will stab the administra-
tion of justice in its most vital parts." But some of the stories
circulated respecting his historical allusions and quotations must
have been exaggerations or pure inventions. Thus Coleridge in
his ' Table Talk ' relates that Lord Kenyon in addressing the
jury in a blasphemy case, after pointing out several early Chris-
tians who bad adorned the Gospel, added — " Above all, gentle-
men, need I name to you the Emperor Julian, who was so cele-
brated for the practice of every Christian virtue, that he was
called JULIAN THE APOSTLE ? " So in the collection of legal
anecdotes, entitled * Westminster Hall,' the noble and learned
Lord is represented as concluding an elaborate address, on dis-
missing a grand jury, with the following valediction : — " Having
thus discharged your consciences, gentlemen, you may retire to
your homes in peace, with the delightful consciousness of
having performed your duties well, and may lay your heads
upon your pillows, saying to yourselves, ' Aut Caesar aut nullus.' 'J
In exposing the falsehood of a witness he is supposed to have
said, " The allegation is as far from truth ' as old Booterium
from the Northern Main ' — a line I have heard or met with
God knows wheer " — [his mode of pronouncing where].^
* Twiss's Life of Lord Eldon. f Townsend, vol. i. p. 91.
LIFE OF LORD KENYON. 89
Before parting with Lord Kenyon's public character, I ought CHAP,
to mention that although he never returned to poetry after his v » ' '
early flight during his apprenticeship, he left reports of cases Jj°rd
begun by him while a student, and these being edited and pub- Reports.
lished by his relation, Mr. Job Hammer, inscribe his name in
the list of " noble and royal authors," but I cannot say that
they were of much value to the profession, or that they confer
great glory upon his order.
I have enlivened former Lives of Chancellors and Chief Justices His facetiae.
by their facetice — but I know nothing of this sort, either by books
or tradition, attributed to Lord Kenyon, except his address to
Mr. Abbott (afterwards Speaker and Lord Colchester). This
pompous little man, while holding under him the office of Clerk
of the Rules, was proceeding, as chairman of a committee of the
House of Commons, to examine him very minutely upon the
delicate subject of the perquisites of the Chief Justice. The
offended Judge having demurred to answer any further, and
being reminded in a solemn manner of the authority of the House
of Commons, at last broke out, " Sir, tell the House of Commons
that I will not be yelped at by my own turnspit." Of his other
recorded sayings I can find nothing more pointed than that in
complimenting Serjeant Shepherd, he said, " He has no rubbish
in his head " — that a flippant observation being made by a wit-
ness respecting a letter supposed to come from a young lady,
he said, " Turn the minion out of court," — and that when he
detected the trick of an attorney to delay a trial, he said, " This
is the last hair in the tail of procrastination, and it must be
plucked out."
When not engaged in his judicial duties, Lord Kenyon led the His penu-
life of a recluse. He occupied a large, gloomy house in Lincoln's 0mo
Inn Fields, in which I have seen merry doings when it was
afterwards transferred to the Verulam Club. I have often heard
this traditional description of the mansion in his time — " All
the year through, it is LENT in the kitchen, and PASSION WEEK
in the parlour." Some one having mentioned, that although
the fire was very dull in the kitchen grate, the spits were always
bright — " It is quite irrelevant," said Jekyll, " to talk about
the spits, for nothing TURNS upon them" Although there was
probably a good deal of exaggeration in these jests, there can
90 REIGN OF GEORGE III.
be no doubt that Lord Kenyon deserved censure for the mean-
ness of his mode of living, and his disregard of decent hospi-
tality. The state conferred the liberal emoluments of Chief
Justice upon him as a trustee so far as that he should support
the dignity of his station — that he should bring together at his
board the deserving members of the important profession over
which he was appointed to preside — and that he should repre-
sent the country to illustrious foreigners who came to study our
juridical institutions. Lord Kenyon's dinner-parties consisted
of himself, Lady Kenyon, his children, and now and then
an old attorney ; and the very moderate weekly bills for such
a m&nage being paid (which they were most punctually), the
accumulations were vested in the 3 per cents., till they were
sufficient to buy another Welsh farm. Lord Kenyon's hours
would not well have suited fashionable company ; for, rising
at six in the morning, he and all his household were in bed
by ten at night. He is said to have built a comfortable
house at Gredington, to which he retired in the long vacation.
His villa at Under the name of villa, he had a miserable tumble-down farm-
rCicnmond.
house at the Marsh Gate, about half a mile on this side of
Richmond, which is still pointed out as a proof of his economy.
The walls are mouldering, and by way of an ornamental piece
of water may be seen near the door a muddy duck-pond. In
Lord Kenyon's time it was guarded by a half-starved Welsh
terrier, which was elevated into a higher order of the canine
race when the following lines were applied to the establish-
ment : —
" Benighted wanderers the forest o'er
Cursed the saved candle and unopened door ;
While the gaunt mastiff growling at the gate
Affrights the beggar whom he longs to eat."
To this place the family came regularly on Saturday evenings,
after a slight repast in town, — bringing with them a shoulder
and sometimes a leg of mutton, which served them for their
Sunday dinner. On Monday morning the Chief Justice was
up with the lark, and back in Lincoln's Inn Fields before the
lazy Londoners were stirring. We have the following amusing
account of one of these journeys from a barrister who was
patronised by him : —
LIFE OF LOKD KENYON. 91
"An old coach came rumbling along and overtook me on the CHAP,
road to London from Richmond. It was one of those vehicles that
reminded me of a Duke or Marquis under the old regime of France,
rivalling in indigence and want the faded finery of his wardrobe.
Its coronet was scarcely discoverable, and its gildings were mouldy ;
yet it seemed tenacious of what little remained of its dignity, and
unwilling to subside into a mere hackney coach. I believe I might
have looked rather wistfully at it (I was then a poor barrister, brief-
less and speechless, in the back rows of the court), when I perceived
a head with a red nightcap suddenly pop out from the window, and
heard myself addressed by name, with the offer of a cast to London.
It was Lord Kenyon. He made the journey quite delightful by
charming anecdotes of the bar in his own time — of Jack Lee,
Wallace, Bower, Mingay, Howorth, the last of whom was drowned,
he said, on a Sunday water-excursion in the Thames. The good
old man was evidently affected by the regrets which his name
awakened, and they seemed the more poignant because his friend
was called to his account in an act of profanation. ' But it was the
sin of a good man,' he observed, i and Sunday was the only day a
lawyer in full business could spare for his recreation.' " *
The red nightcap had been worn to save his wig. He was His dress.
curiously economical about the adornment of his head. It was
observed for a number of years before he died, that he had two
hats and two wigs — of the hats and the wigs one was dreadfully
old and shabby, the other comparatively spruce. He always
carried into Court with him the very old hat and the compara-
tively spruce wig, or the very old wig and the comparatively
spruce hat. On the days of the very old hat and the compara-
tively spruce wig he shoved his hat under the bench, and dis-
played his wig ; but on the days of the very old wig and the
comparatively spruce hat, he always continued covered. I have
a very lively recollection of having often seen him sitting with
his hat over his wig ; but I was not then aware of the Rule of
Court by which he was governed on this point.!
The rest of Lord Kenyon's apparel was in perfect keeping
* Clubs of London.
f Till the middle of the last century the Chancellor is always represented
with his hat on. In early times it was round and conical ; and such was Lord
Keeper Williams's, although he was a bishop. In Anne's reign three-cornered
hats came up. The black cap of the common law judges, which has remained
unchanged for many ages, is square. With this they used always to be covered ;
but they wear it now only when passing sentence of death.
92
KEIGN OF GEORGE III.
CHAP.
XLV.
His will
directing
his execu-
tors to avoid
the expense
of a
diphthong.
with his coiffure. " On entering Guildhall," says Espinasse,
" Pope's lines in the Dunciad came across me, and I quoted
them involuntarily : —
' Known by the band and suit which Settle wore,
His only suit for twice three years and more.'
" Erskine would declare that he remembered the great-coat at
least a dozen years, and Erskine did not exaggerate the claims of
the coat to antiquity. When I last saw the learned Lord, he had
been Chief Justice for nearly fourteen years ; and his coat seemed
coeval with his appointment to the office. It must have been ori-
ginally black, but time had mellowed it down to the appearance of
a sober green, which was what Erskine meant by his allusion to its
colour. I have seen him sit at Guildhall in the month of July in
a pair of black leather breeches ; and the exhibition of shoes fre-
quently soled afforded equal proof of the attention which he paid to
economy in every article of his dress."
In winter he seems to have indulged in warmer garments ;
for James Smith, author of the " Rejected Addresses," describing
him in Michaelmas term, says — " But we should not have his
dress complete were we to omit the black velvet smalls worn for
many years, and threadbare by constant friction, which he used
to rub with most painful assiduity when catechising the witness.
The pocket-handkerchief found in the second-hand silk waist-
coat which he bought from Lord Stormont's valet being worn
out, he would not go to the expense of another, and, using his
fingers instead, he wiped them upon his middle garment, whether
of leather or of velvet."
According to other accounts this change in his habits did not
begin till the imposition of the Income Tax by Mr. Pitt. Said
Rogers the poet, " Lord Ellenborough had infinite wit. When
the Income Tax was imposed, he stated that Lord Kenyon
(who was not very nice in his habits) intended, in consequence
of it, to lay down his pocket handkerchief." *
If we can believe his immediate successor, who had a fair
character for veracity, Lord Kenyon studied economy even
in the hatchment put up over his house in Lincoln's Inn
Fields after his death. The motto was certainly found to be
" MORS JANUA VITA " — this being at first supposed to be the
Table Talk of Samuel Rogers, p. 196.
LIFE OF LOED KENYON. 93
mistake of the painter. But when it was mentioned to Lord CHAP.
Ellenborough, " Mistake ! " exclaimed his Lordship, " it is no < ,— I-/
mistake. The considerate testator left particular directions in
his will that the estate should not be burdened with the ex-
pense of a diphthong ! "
Accordingly he had the glory of dying very rich. After the
loss of his eldest son, he said with great emotion to Mr. Justice
Allan Park, who repeated the words soon after to me — " How
delighted George would be to take his poor brother from the
earth, and restore him to life, although he receives 250,000/. by
his decease ! "
He was succeeded by this son George, a most warm-hearted, His de-
excellent man — to whom it may be easily forgiven that he con- sceudants-
siders the founder of his house a model of perfection, not only
in law, religion, and morals, but in manners, habits, and accom-
plishments. To spare the feelings of one so pious, I resolve that
this Memoir shall not be published in his lifetime, although I
believe that it is chargeable with a desire to extenuate rather
than to set down aught in malice*
I cannot say with a good conscience that the first Lord
Kenyon was highly educated and every way well qualified to
fill the office of Chief Justice ; but he was earnestly desirous to
do what was right in it ; and he possessed virtues which not only
must endear him to his own descendants, but must make his
memory be respected by his country.
* This Memoir was written in the lifetime of George, the second Lord
Kenyon, with whom I was in habits of familiar intercourse. He died 1 Feb.
1855, and was succeeded by his eldest son Lloyd, the third Lord, who I have
heard does credit to the name he bears, but with whom I have not the honour
of any acquaintance.
94 BEIGN OF GEOKGE III.
CHAPTER XLVI.
LIFE OF LORD ELLENBOROUGH FROM HIS BIRTH TILL HIS MARRIAGE.*
C HAP. 1 NOW come to a Chief Justice with whom I have had many a
, ' . personal conflict, and from whom for several years I experienced
Feelings very rough treatment, but for whose memory I entertain the
biographer hignest respect. He was a man of gigantic intellect ; he had
in com- the advantage of the very best education which England could
mencincrthe , , , ' p , .
Life of Lord bestow ; he was not only a consummate master 01 his own pro-
Ellen- fession, but well initiated in mathematical science and one of the
borough.
best classical scholars of his day ; he had great faults, but they
were consistent with the qualities essentially required to enable
him to fill his high office with applause. ELLENBOROUGH was a
real CHIEF — such as the rising generation of lawyers may read
of and figure to themselves in imagination, but may never behold
to dread or to admire.
When I first entered Westminster Hall in my wig and gown,
I there found him the " monarch of all he surveyed," and, at this
distance of time, I can hardly recollect without awe his appearance
and his manner as he ruled over his submissive subjects. But I
must now trace his progress till he reached this elevation.
His family. His lot by birth was highly favourable to his gaining distinc-
tion in the world — affording him the best facilities and the
strongest incentives for exertion. He was the younger son of an
English prelate of very great learning and very little wealth.
His ancestors had long been " statesmen" in the county of West-
moreland— that is, substantial yeomen cultivating a farm which
was their own property, and which was transmitted without
addition or diminution for many generations. At last one of
them was admitted to holy orders without having been at any
university, and acted as the curate of the mountainous parish in
which his patrimony lay. His son was the famous Dr. Edmund
Law, Bishop of Carlisle, who having been sent early to St.
* When I wrote this Memoir I was still Chancellor of the Duchy of Lan-
caster, arid a member of Lord John Russell's Cabinet.
LIFE OF LORD ELLENBOKOUGH. 95
John's College, Cambridge, highly distinguished himself there,
was elected a fellow of Christ's College, and became one of the
shining lights of that society celebrated under the name of the
Zodiac. Before being raised to the episcopal bench, he was
successively rector of Graystock and of Salkeld, Master of Peter-
house, and a Prebendary of Durham. In politics, like many
dignitaries of that day, he was a good Whig, although almost
all the inferior clergy were Tories, or rather Jacobites. In
religion he strongly inclined to the low Church party, and was
suspected of being somewhat latitudinarian in some of the articles
of his faith. He published various theological works, the most
famous of which was a treatise " on the Intermediate State " —
inculcating the doctrine that the soul cannot be in active exist-
ence when separated from the body, and that it is therefore
in a continuous sleep between death and the general resur-
rection.* He was married to Mary, daughter of John Chris-
tian, Esq., of Unerigg, in Cumberland, and by her had a family
of twelve children, among whom were two Bishops and a Chief
Justice.
Edward, the subject of this memoir, was one of the youngest A-.D- *750-
of them, and was born in the parsonage of Salkeld on the 16th
of November, 1750. Resembling his mother much in features,
he is said to have derived from her likewise his manners and the
characteristic qualities of his mind. If the following description
of the good Bishop be correct, they could not have descended
upon the sarcastic Chief Justice ex parte pater nd : —
" His Lordship was a man of great softness of manners, and of the
mildest and most tranquil disposition. His voice was never raised
above its ordinary pitch. His countenance seemed never to have
been ruffled ; it invariably preserved the same kind and composed
aspect, truly indicating the calmness and benignity of his temper.
His fault was too great a degree of inaction and facility in his public
station. The bashfulness of his nature, with an extreme unwillingness
* It is stated by Townsend (vol. i. 301) and other biographers, that he was
likewise author of ' A Serious Call to the Unconverted,' but this very lively
work, which should rather be designated ' True Keligion made entertaining,'
was written by WILLIAM LAW, bom in Northamptonshire, and educated at Ox-
ford, who was tutor to the father of Gibbon the historian, and ended his career
by becoming a disciple of Jacob Behmen. — Gibbon's Miscellaneous Works ; Bos-
well's Life of Johnson.
96
EEIGN OF GEORGE III.
CHAR
XLVI.
His educa-
tion.
At the
Charter-
house.
A.D. 1768.
At Cam-
bridge.
to give pain, rendered him sometimes less firm and efficient in the
administration of authority than was requisite." *
Yet our 'hero's " Christian " blood will not account for his iras-
cibility', as he himself used to declare that in temper his mother was
as admirable as the Bishop his father, and when he had reached
old age he often expressed a fond respect for her memory.
Little Ned, although often naughty, was the chief favourite
of both his parents. He remained at home till he was eight
years old, and not only his nurse but the whole family spoke
their native dialect in such force, that he retained the Cum-
brian pronunciation and accent to his dying hour.f Soon after
he had been taught to read, he was sent into Norfolk to live with
his maternal uncle, the Rev. Humphrey Christian, a clergyman
settled at Docking, in that county. Having been a short time
at a school of some repute at Bury St. Edmunds, he was removed
to the noble foundation of the Charter-house in London.^ To
his solid acquisitions there he ever gratefully ascribed his sub-
sequent eminence in public life, and there, by the special direc-
tions of his will, his remains now repose near to those of the
founder.
Law continued at the Charterhouse six years, and rose to
be Captain of the school. He used to say that while enjoying
this dignity he felt himself a much more important character
than when he rose to be Chief Justice of England and a Cabinet
Minister. At this early period he displayed the same vigour of
character and the same mixture of arrogance and bonhomie
which afterwards distinguished him. He was described by a
classfellow who had alternately experienced harshness and kind-
ness from him, as " a bluff, burly boy, at once moody and good-
natured — ever ready to inflict a blow or perform an exercise for
his schoolfellows/' §
When he had reached the age of eighteen he was sent to
Cambridge and entered at Peterhouse, of which his father was
* Archdeacon Paley.
t For example, he called the days of the week " Soonda, Moonda, Toozeda,
Wenzeda," &c.
J He was admitted a Scholar on the 22nd of January, 1761, upon the nomi-
nation of the Bishop of London (Dr. Sherlock), and elected an Exhibitioner
2nd May, 1767.
§ Capel Loift.
LIFE OF LOKD ELLENBOKOUGH. 97
still Master. He is said now to have occasionally indulged
pretty freely in the dissipation which was then considered com-
patible with a vigorous application to study, but he never wasted
his time in idle amusements ; over his wine he would discuss the
merits of a classical author, or the mode of working a mathe-
matical problem — and when his head was cleared by a cup of
strong tea, he set doggedly to work that he might outstrip those
who confined themselves to this thin potation.
He belonged to a club of which William Coxe, then an under-
graduate, afterwards an archdeacon, was the historiographer.
The destined eulogist of Sir Robert Walpole thus, in flatter-
ing terms, described the future Chief Justice : —
" Philotes bears the first rank in this our society. Of a warm
and generous disposition, he breathes all the animation of youth
and the spirit of freedom. His thoughts and conceptions are
uncommonly great and striking ; his language and expressions are
strong and nervous, and partake of the colour of his sentiments.
As all his views are honest and his intentions direct, he scorns
to disguise his feelings or palliate his sentiments. This dispo-
sition has been productive of uneasiness to himself and to his
friends, for his open and unsuspecting temper leads him to use
a warmth of expression which sometimes assumes the appearance
offarte. This has frequently disgusted his acquaintance ; but
his friends know the goodness of his heart and pardon a foible
that arises from the candour and openness of his temper.
Indeed he never fails, when the heat of conversation is over
and when his mind becomes cool and dispassionate, to acknow-
ledge the error of his nature, and, like a Roman Catholic, claim
an absolution for past as well as future transgressions. Active
and enterprising, he pursues with eagerness whatever strikes
him most forcibly. His studies resemble the warmth of his
disposition ; struck with the great and sublime, his taste, though
elegant and refined, prefers the glowing and animated concep-
tions of aTacitus to the softer and more delicate graces of aTully."
I am afraid we must infer that in conversation he was rather
overbearing, and that the love of sarcasm, which never left him,
was then uncontrolled and made him generally unpopular. How-
ever, his straightforward manly character, joined to his brilliant
VOL. III. II
98
EEIGN OF GEORGE III.
talents, procured him while at the University friends as well
as admirers — among whom are to be reckoned Vicary Gibbs,
Simon Le Blanc and Souldan Lawrence, afterwards his rivals at
the bar and associates on the bench. While an undergraduate,
by exercising the invaluable virtue of self-denial he was upon
the whole very industrious, — although he loved society, and said
" the greatest struggle he ever made was in leaving a pleasant
party and retiring to his rooms to read."
A.D. 1771. When the time approached for taking his bachelor's degree,
it was confidently expected that he would be senior wrangler
and first medallist. His elder brother, afterwards Bishop of
Elphin, to whom he was considered much superior, had been
second wrangler in a good year. Edward, however, was de-
cidedly surpassed in the mathematical examinations by two men
much inferior to him in intellect, but of more steady application.
His disappointment was imputed to excess of confidence. He
himself took it deeply to heart, and he pretended to be as much
ashamed of being third wrangler as if he had got the " wooden
spoon." His classical acquirements did carry off the first
medal ; but his pride was by no means assuaged, and he con-
tinued for the rest of his days to scoff at academical honours.
Tliis feeling was embittered by his writing the two following
years for bachelors' prizes and gaining nothing beyond fifteen
guineas, given by the members for the second best Latin Essay.
Although his spoken eloquence was vigorous and impressive,
he never could produce anything very striking when sitting
down, unexcited, at his desk, and his written compositions,
whether in Latin or English, were never remarkable either for
lucid arrangement or purity of style.
He continued to reside at Cambridge two years after taking
his bachelor's degree, with a view to a fellowship, and these he
used to describe as the least agreeable and least profitable of
his life. He still had fits of application to severe study, but
the greatest part of his time he now devoted to light literature,
taking special pleasure in novels. He said he abominated such
as ended unhappily — but he read all indiscriminately, and while
LIFE OF LOKD ELLENBOKOUGH. 99
he luxuriated in Fielding and Smollett, Mrs. Sheridan's 'Sid- CHAP,
ney Biddulph ' was said to have drawn " iron tears down Pluto's v / '
cheek."
His father had much wished to have all his sons in the His choice
church, but Edward was earnestly bent upon trying his fortune fession.°
at the bar, and had obtained leave to enter himself of Lincoln's
Inn,* on the express condition that he was not to begin the
study of the law till he had obtained a fellowship, and that,
failing this, he should still take holy orders — so that he might
have something to depend upon for a subsistence beyond the
precarious hope of fees. Meeting with some disappointments
in academical promotion, he was strenuously urged to enter the
Church, his father having become a bishop, with the power of
giving him a living among the fells of Westmoreland; but at A.D. 1773.
last he was elected a fellow of Trinity College, and the Chief
Justiceship was open to him.
It was a fortunate circumstance for him that he embraced the
profession of the law against the earnest wishes of a father whom
he sincerely respected and loved. He thus took a tremendous
responsibility upon himself, and had the most powerful motives
for exertion, that he might justify his own opinion and soothe
the feelings of him whose latter days he hoped to see tranquil
and happy. He spurned the idea of retreating upon the Church
after a repulse by the Law, and he started with the dogged
resolution to overcome every difficulty which he might encounter
in his progress. Having obtained a small set of chambers in He studies
Lincoln's Inn, he forthwith in good earnest began the study of
jurisprudence, not contenting himself with the lucid page of
* "LINCOLN'S INN.
EDWARD LAW, Gentleman, of S4 Peter's College, Cambridge, third AJmn B. 6)
son of the Eight Eevd Father in God, Edinond Lord Bishop of Carlisle, is fo 139 /
admitted into the Society of this Inn the 10th day of June, in the Ninth year of
the Eeign of our Sovereign Lord George the Third, by the Grace of God, of
Great Britain, France, and Ireland, King, Defender of the Faith, and in the
year of our Lord 1769, and hath thereupon paid to the use of this Society the
sum of Three pounds three shillings and four pence.
Admitted by
ED- SPOONER."
ii 2
100
KEIGN OF GEOKGE III.
CHAP.
XL VI.
A.D. 1773-
1775.
His dili-
gence in a
special
pleader's
office.
Blackstone and the elegant judgments of Mansfield, but vigor-
ously submitting to whatever was most wearisome and most
revolting if considered necessary to qualify him for practice at
the English bar. Determined to be a good artificer, he did not
dread " the smoke and tarnish of the furnace."
" Moots " and " Readings " having long fallen into disuse,
the substituted system of pupilizing had been firmly established
— well adapted to gain a knowledge of practice, but not of
principles. A student intended for the common-law courts was
expected to work at least two years in the office of a special
pleader, copying precedents, drawing declarations and pleas,
and having an opportunity of seeing the run of his master's
business. The most distinguished instructor in this line at that
time was George Wood, on whom Lord Mansfield made the
celebrated special-pleading joke about his horse demurring when
he should have gone to the country.* In his office, Law, by
great interest, obtained a desk, and he could soon recite the
" money counts " as readily as his favourite poem of ABSALOM
AND ACHITOPHEL. We may form a lively notion of his habits
and his sentiments at this period from the following letter which,
at the conclusion of a sitting of many hours in Mr. Wood's
chambers, he wrote to his friend Coxe, then a private tutor to a
young nobleman : —
" June 18th, 1773— Temple, Friday night.
" After holding a pen most of the day in the service of my
profession, I will use it a few minutes longer in that of friend-
ship. I thank you, my dearest friend, for this and every proof
of confidence and affection. Let us cheerfully push our way in
* George, though a subtle pleader, was very ignorant of horse flesh, and had
been cruelly cheated in the purchase of a horse on which he had intended to
ride the circuit. He brought an action on the warranty that the horse was
" a good roadster, and free from vice." At the trial before Lord Mansfield, it
appeared that when the plaintiff mounted at the stables in London, with the
intention of proceeding to Barnet, nothing could induce the animal to move
forward a single step. On hearing this evidence, the Chief Justice with much
gravity exclaimed, " Who would have supposed that Mr. Wood's horse would
have demurred when he ought to have gone to the country ? " Any attempt to
explain this excellent joke to lay gents, would be vain, and to lawyers would be
superfluous.
LIFE OF LOUD ELLENBOKOUGH. 101
«
our different lines : the path of neither of us is strewed with
roses, hut they will terminate in happiness and honour. I
cannot, however, now and then help sighing when I think how
inglorious an apprenticeship we both of us serve to ambition —
while you teach a child his rudiments and I drudge at the pen
for attorneys. But if knowledge and a respectable situa-
tion are to be purchased only on these terms, I, for my part,
can readily say ' hac mercede placet.' Do not commend
my industry too soon ; application wears for me at present the
charm of novelty ; upon a longer acquaintance I may grow tired
of it."
On the contrary, he became fonder and fonder of it. The
tautological jargon still used in English law proceedings is dis-
gusting enough, but in the exquisite logic of special pleading
rightly understood, there is much to gratify an acute and vigorous
understanding. The methods by which it separates the law
from the facts, and having ascertained the real question in con-
troversy between the parties, refers the decision of it either to
the judges or to the jury, favourably distinguish our procedure
from that of any other civilised nation, and have enabled us to
boast of a highly satisfactory administration of justice without
a scientific legal code.
Law continued working very hard as a special-pleading pupil
for two years. During this period he not only grew to be a
great favourite with his instructor, but the attorneys who fre-
quented Mr. Wood's chambers became acquainted with his
assiduity and skill. The pleadings settled by Mr. Wood and
the opinions signed by him were generally written in a very
large, bold, pot-hook hand, which they discovered to be Mr.
Law's, and although he was much too independent and honour-
able to resort to any evil arts for the purpose of ingratiating
himself, and he was chargeable rather with hauteur than with
huggery, he sometimes got into conversation with the attorneys,
and he raised in their minds a very high opinion of his pro-
ficiency as well as of his industry.
When he was to cease to be in statu pupillari the question
102
REIGN OF GEORGE III.
under the
His success.
arose whether he should immediately be called to the bar, or
follow the course recently introduced of practising as a special
pleader under the bar — confining himself entirely to chamber
practice — drawing law papers and giving opinions to the attor-
neys in cases of smaller consequence — making his own charges
for his work, instead of receiving the spontaneous quiddam
honorarium, which to a barrister must not be below a well-
known minimum, but, being above that, he is not at liberty
to complain of, however inadequate it may appear. Law was
conscious of considerable powers of elocution which he was
impatient to display. He not only belonged to a private
debating club for students in the Temple, but he had gained
applause by an oration at Coachmakers' Hall, then open to
spouters in every rank of life. Nevertheless, sacrificing the
chance of present eclat, he prudently resolved to condemn
himself to a period of useful obscurity, and he commenced
" special pleader under the bar." He had great success, and
business flowed in upon him, particularly from the agents of
the Northern attorneys. His charge for answering cases was
very small, but he put a modest estimate upon the real value of
the commodity which he sold. Many years afterwards, when
he was presiding at Nisi Prius, a wrong-headed attorney,
pleading his own cause, and being overruled on some untenable
points which he took, at last impertinently observed — " My
Lord, my Lord, although your Lordship is so great a man now,
I remember the time when I could have got your opinion for
five shillings." Ellenborough, C.J. : " Sir, I dare say it was not
worth the money ! " This was a far better mode of vindicating
the dignity of the Judge and carrying along with him the
sympathies of the audience, than fining the delinquent or
threatening to commit him for a contempt of court — the
course which would probably have been followed by the hasty
Kenyon.
Under the bar Law soon made a handsome income ; Cam-
bridge men studying for the legal profession were eager to be-
come his pupils at the established fee of one hundred guineas
LIFE OF LOKD ELLENBOROUGH. 103
a year or two hundred guineas for three years; and when he CHAP,
made out his bills at Christmas he found that he was doing
better than any barrister who could be considered his contem-
porary— with the single exception of Erskine.
During five long and irksome years did Law continue to
devote himself to this drudgery, but his perseverance was amply
rewarded, for he not only gained a reputation which was sure
to start him with full business at the bar, but he acquired
a thorough knowledge of his craft, which few possess who,
after a mere course of solitary study, plunge into forensic
wrangling.
In Hilary Term, 1780, he was called to the bar by the A.D. 1780.
Honourable Society of Lincoln's Inn. Generally speaking,
success cannot be anticipated with any confidence for a young
barrister, however well qualified to succeed he may appear to
be ; and our profession well illustrates the Scriptural saying,
" The race is not always to the swift, nor the battle to the
strong, nor bread to men of understanding, nor honour to men
of skill, but time and chance happeneth to them all." Never-
theless Law neither felt, nor had reason to feel, the slightest
misgivings when he put on his gown, and started for the prize
of Chief Justice. Lord Camden and other great lawyers had
languished for many years without any opportunity of display-
ing their acquirements. Law had several retainers given to
him by great Northern attorneys on the very day of his call ;
and not only from family connexion, but from his reputation
as a special pleader, which had long crossed the Trent, he was
sure of finding himself at once in respectable practice. He
disdained the notion of attending Quarter Sessions, and he
always was inclined to sneer at young gentlemen who tried to
force themselves into notice by writing a law book. He calcu-
lated that by his knowledge and his eloquence he must speedily
be at the head of the Northern Circuit. In general those who
practise under the bar as special pleaders do not aspire higher
than holding second briefs in a stuff gown, with an arricrc
pensee of being raised to be a puisne judge. The ardour of
104 REIGN. OF GEORGE III.
our debutant had not been extinguished or chilled by his long
apprenticeship, and he already heard the rustling of his silk
A.D. 1780. gOWIlj an(j jmagine(j himself wearing the collar of SS, appro-
priated to the Chief Justice of England.
He joins the In the beginning of March, 1780, he joined the circuit at
Circuit. York, causing considerable alarm to those established in busi-
ness, and curiosity among the disinterested. Without any
suspicion of improper arts being used by himself, or of im-
proper influence being exercised in his favour by others, at the
opening of the Nisi Prius court a large pile of briefs lay before
him. His manner was somewhat rough, and he was apt to get
into altercations with his opponents and with the judge ; but
his strong manly sense, and his familiar knowledge of his pro-
fession, inspired confidence into those who employed him ; and
the mingled powers of humour and of sarcasm which he dis-
played soon gave him a distinguished position in the Circuit
Grand Court held foribus clausis among the barristers them-
selves, in which toasts were given, speeches were made, and
verses were recited, not altogether fit for the vulgar ear.
At this period there were never more than two or three
King's counsel on any circuit ; and a silk gown was a high
distinction to the wearer, not only among his brethren, but in
general society,— placing him above the gentry of the country.
The Northern leaders then were Wallace and Lee, whom no
attorney approached without being uncovered. They were men
of great eminence from their personal qualifications, and it was
expected that they would speedily fill the highest judicial
offices. They were before long ' taken from the circuit, to the
joy of their juniors— Wallace being made Attorney-General,
and Lee Solicitor-General ; but, unluckily for them, they ad-
hered to Mr. Fox and Lord North, and the permanent ascend-
ency of William Pitt after he had crushed the coalition was
fatal to their further advancement. Neither of them having
reached the Bench, their traditionary fame, transmitted through
several generations of lawyers, is now dying away.*
* Wallace's son was- made a peer, by the title of Lord Wallace of Knaresdale
LIFE OF LOKD ELLENBOKOUGH. 105
Till the beginning of the 19th century the Northern Circuit,
in the spring, was confined to Yorkshire and Lancashire. In
early times the distance of the four hyperborean counties from
the metropolis, and the badness of the roads, rendered it im-
possible to hold assizes in any of them during the interval be-
tween Hilary and Easter Terms — so that a man committed for
murder in Durham, Northumberland, Cumberland, or West-
moreland might lie in gaol near a twelvemonth before he was
brought to trial. At the accession of George III. there were
turnpike trusts in the remotest parts of the kingdom, and post-
horses were found wherever they were desired ; but the usual
superstitious adherence to ancient customs when the reason for
them has ceased, long obstructed every attempt to improve the
administration of justice in England.
The business being finished at York, Mr. Law proceeded
with his brethren to Lancaster, where the list of civil causes
was still scanty, although all that arose within the County Pala-
tine were to be tried here. Liverpool, compared with what it
has since become, might have been considered a fishing village ;
Manchester had not reached a fourth of its present population ;
and the sites of many towns, which now by their smoke darken
the Lancastrian air for miles around, were then green fields,
pastured by cattle, or heathery moors, valuable only for breed-
ing grouse. Here our junior did not fare so well as at York ;
yet he could not have been indicted at the Grand Court for carry-
ing unam purpuream baygam jlaccescentem omnino inanitatis
causa ; * for although Wallace, who was nearly connected with
him by marriage, had made him a present of a bag — an honour
of which no junior before could ever boast on his first circuit — its
flaccidity was swelled out by several briefs, which he received
in 1828, but died without issue in 1844. Lee, though he filled a great space in
the public eye while living, has not in any way added to the permanent " Gran-
deur of the Law."
* These mock indictments were still often in Latin, notwithstanding the
statute requiring all proceedings in Courts of Justice to be in the English
tongue, it having been ruled that " no statute is binding on the Grand
Court of the Northern Circuit in which this Court is not specially mentioned."
106 EEIGN OF GEOKGE III.
CHAP. from an attorney of Ashton-under-Lyne, who used afterwards
boastingly to say, " I made Law Chief Justice" *
The assizes being speedily over, Mr. Law returned to London
progress in weii pleased with his success, and with his prospects. But in
London. , . , .
the two following terms he never opened his mouth in court
unless to make a motion of course, — and he was rather dis-
heartened. It was not till years afterwards, when the attention
of the nation was fixed upon him as counsel for Mr. Hastings,
that his merits were appreciated by attorneys in London.
When the summer assizes came round he visited all the
six counties which form the Northern Circuit. In each of
them he had a considerable portion of business — and at Car-
lisle more than any other junior, his own qualifications as a
lawyer being backed by the respect entertained for the vene-
rable Bishop of the diocese.
His silk During seven years he continued to fight his way on the
fayed ty his circuit in a stuff gown ; and towards the end of this period he
Whiter had gained such reputation in addressing juries as nearly to
throw out of business several black-letter special pleaders, who
were his seniors, and could not be retained along with him
when it was intended that he should lead the cause. There
was therefore a general wish among his brother circuiteers that
he should have silk, and a representation upon the subject was
made to Lord Chancellor Thurlow ; but some difficulty arose
about conferring this mark of royal favour upon one who was
considered a decided Whig. Although measures to encourage
free trade, for the improvement of the law, and even for a
reform of Parliament, were brought forward by the prime
* Now-a-days any young barrister buys a bag, and carries it as soon after ho
is called to the bar as he likes ; but when I was called to the bar, and long after,
the privilege of carrying a bag was strictly confined to those who had received
one from a King's counsel. The King's counsel, then few in number, were
considered officers of the Crown, and they not only had a salary of 40/. a-year,
but an annual allowance of paper, pens, and purple bags. These they distri-
buted among juniors who had made such progress as not to be able to carry
their briefs conveniently in their hands. All these salaries and perquisites
were ruthlessly swept away in 1830 by Lord Grey's reforming Government — and
it was full time — as King's counsel had become a mere grade in the profession,
comprehending a very large number of its members.
LIFE OF LOKD ELLENBOKOUGH. 107
minister, the memory of the " Coalition " was green, and the
thirst for revenge upon all who had encouraged the attempt to
put a force upon the Crown in the choice of ministers was still
unsatiated. Thurlow, who soon after, during the King's in-
sanity, intrigued with the Whigs that he himself might retain
the Great Seal under them, had down to this time testified pecu-
liar enmity to the whole of them as a party and individually.
However, the urgency for Law's promotion increasing, and
the Judges who went the Northern Circuit joining in the ap-
plication, it could no longer be refused.
Before we behold him as a public character, let us take a Law in do
glance at him in domestic life. It was said that he had rather
freely indulged in the gallantries of youth, and that he even for
a time followed the example of the then Lord High Chancellor
of Great Britain, the great prop of the Church, and chief dis-
tributor of ecclesiastical preferment, who openly kept a mistress.*
But however this may be, Law was not supposed to have ex-
ceeded what was permitted by the licence of those times, and
he was happily for ever rescued from the peril of scandal by
being accidentally introduced to the beautiful Miss To wry, His court-
daughter of Mr. Towry, a commissioner of the navy, and a
gentleman of, good family. I myself recollect her become a
mature matron, still a very fine woman, with regular features,
and a roseate complexion; but when she first appeared, she
excited admiration almost unprecedented. Amongst many
others, Law came, saw, and was conquered. Considering his
ungainly figure and awkward address, it seems wonderful that he
should have aspired to her hand among a crowd of competitors
— particularly as it was understood that she had already refused
very tempting proposals. But he ever felt great confidence in
himself, whatever he undertook ; he now said, " Faint heart
never won fair lady," and after he had paid her devoted atten-
tion for a few weeks, he asked her father's leave to address her.
The worthy commissioner gave his consent, having heard that
* Mrs. Harvey, celebrated in the 'Bolliad,' and said to have been much
courted by the clergy.
108
EEIGN OF GEOKGE III.
CHAP.
XLVI.
His mar-
riage.
this suitor was considered the most rising lawyer in Westminster
Hall. But the young lady being interrogated, answered by a
decided negative. Still the lover was undismayed — even (as it
1s said) after a third rebuff. At last, by the charms of his con-
versation, and by the eulogiums of all her relations, who thought
she was repelling a desirable alliance, her aversion was soft-
ened, and she became tenderly attached to him.
The marriage took place on the 17th day of October, 1789,
and proved most auspicious. Mrs. Law retained the beauty of
Miss Towry; and such admiration did it continue to excite,
that she was not only followed at balls and assemblies, but
strangers used to collect in Bloomsbury Square to gaze at her
as she watered the flowers which stood in her balcony. But no
jealousy was excited in the mind of the husband even when
Princes of the Blood fluttered round her. For many years the
faithful couple lived together in uninterrupted affection and
harmony, blessed with a numerous progeny, several of whom
united their father's talents with their mother's comeliness.
LIFE OF LORD ELLENBOKOUGH. 109
CHAPTER XL VII.
CONTINUATION OF THE LIFE OF LORD ELLENBOROUGH TILL HE WAS
APPOINTED ATTORNEY-GENERAL.
LAW had long bitterly complained that his fame was confined to C HAP.
the Jimits of the Northern Circuit. He had scarcely as yet been v^_^^Jj
employed in a single cause of interest in London, whereas A-D- 1787-
Erskine was already the foremost man in the Court of King's
Bench, and had special retainers all over England. Our aspi-
rant believed that if he had a fair opportunity of displaying his
powers, he should gain high distinction ; but he dreaded that
he might never lead in actions of greater interest than trespass
for an assault, or assumpsit on the warranty of a horse, or
covenant for the mismanagement of a farm, or case for the
negligent working of a mine.
In the midst of this despondency, he found at his chambers He is re-
TTT TT T-I tained as
one evening a general retainer for WAKREN HASTINGS, ESQ., leading
and instructions to settle the answer to the articles of impeach- 01
ment, — with a fee of five hundred guineas. This was a much Hastings.
more important occurrence to him than his appointment to be
Chief Justice of England, which was the consequence of it, and
followed in the natural and expected course of events. He at
once perceived that his fortune was made ; and in rapid succes-
sion he saw with his mind's eye the pleasure to be felt by his
family, the mortification of his enemies, the glory that he was
to acquire from entering the lists against such antagonists
as Burke, Fox, and Sheridan, and the honours of his pro-
fession which must in due time be showered upon him. In our
juridical history no English advocate has ever had such a field
for the display of eloquence as the counsel for the impeached
Warren Hastings. Hale could only advise Charles L to deny
the jurisdiction of the High Court of Justice ; Lane, in defend-
110 REIGN OF GEORGE III.
CHAP. ing the Earl of Strafford, was only permitted to touch upon a
v- — * ' technicality ; and, till the reign of William III., in cases of high
A.D. 1787. ^reason, it was only to argue a dry point of law which might
incidentally arise that the accused had any assistance from ad-
vocacy. Since the Revolution there had been very interesting
State Trials, but they only involved the fate of an individual ;
they exhibited the struggles of retained lawyers against retained
lawyers ; they turned upon specific acts of criminal conduct
imputed to the accused ; they were over in a single day, and in
nine days more they were forgotten. No one then anticipated
that the impending trial of Warren Hastings was to be begun
before one generation of Peers and decided by another, but all
knew that it involved the mode in which a distant empire had
been governed ; that it was to unfold the history of some of the
most memorable wars and revolutions in Asia ; that it was to
elucidate the manners and customs of races of men who, though
subjected to our dominion, we only imperfectly knew from vague
rumour ; that in the course of it appalling charges of tyranny
and corruption were to be investigated ; that the accusers were
the Commons of England ; that the managers of the impeach-
ment were some of the greatest orators and statesmen England
had ever produced, and that upon the result depended not only
the existence of Mr. Pitt's administration, but, what was more
exciting, the fate of an individual whose actions had divided
public opinion throughout the civilized world — who was con-
sidered by some a monster of oppression, cruelty, and avarice,
and by others a hero, a philanthropist, and a patriot. The
Northern circuiteer, instead of addressing a jury of illiterate
farmers at Appleby, in a small court filled with rustics, was to
plead in Westminster Hall, gorgeously fitted up for the occa-
sion, before the assembled Peers in their ermined robes, before
the representatives of the people attending as parties, and before
a body of listeners comprehending all most distinguished for
rank, for talent, and for beauty.
Although Mr. Law had not thought of this retainer more than
of being made Archbishop of Canterbury, some of his friends
LIFE OF LORD ELLENBOKOUGH. Ill
had been engaged in a negotiation for securing it to him. Has- c HAP.
tings himself was naturally desirous that he should be defended v »— ^
by Erskine, who had acquired so much renown as counsel for A'D- 1787t
Lord George Gordon, and who had loudly declared his own
personal conviction to be that the ex-Governor-General deserved
well of his country. But as the impeachment had become a party
question, and was warmly supported by the leaders of the party to
which Erskine belonged, —although he was not then a member
of the House of Commons, he reluctantly declined an engage-
ment* in which his heart would enthusiastically have prompted
the discharge of his professional duties, and by which he might
have acquired even a still greater name than he has left with
posterity. He declared that he would not have been sorry to
measure swords with Burke, who in the House of Commons had
on several occasions attacked him rather sharply and successfully.
" In Westminster Hall," said he, " I could have smote this
antagonist hip and thigh." But Erskine could not for a moment
endure the idea of coming into personal conflict with Fox and
Sheridan, whom he loved as friends, whom he dreaded as rivals,
and with whom, on a change of government, he hoped to be
associated in high office.
The bar at this time afforded little other choice. Dunning
had become a Peer and sunk into insignificance ; his contem-
poraries were either connected with Mr. Pitt's Government, or
were declining from years and infirmity — and among the rising
generation of lawyers, although there was some promise, no one
yet had gained a position which seemed to fit him for this " great
argument."
The perplexity in which Hastings and his friends found them-
selves being mentioned in the presence of Sir Thomas Rumbold,
who had been in office under him in India, he delicately sug-
gested the name of his brother-in-law,* pointing out this kins-
man's qualifications in respect of legal acquirements, of eloquence,
* Sir Thomas Kumbold had married Joanna, Bishop Law's youngest
daughter.
112 REIGN OF GEORGE III.
CHAP. an(^ above all, of intrepidity— on which, considering the cha-
* > ' racter of the managers for the Commons, the acquittal of the
A'D* ' ' defendant might chiefly depend. This recommendation was at
first supposed to proceed only from the partiality of relationship ;
but upon inquiry it appeared to be judicious. The resolution
was, therefore, taken to employ Law as the leading counsel,
associating with him Mr. Plomer, afterwards Vice-Chan cellor
and Master of the Rolls, and Mr. Dallas, afterwards Solicitor-
General and Chief Justice of the Common Pleas, — in whom Law
entirely confided and with whom he ever cordially cooperated.
He still wore a stuff gown when this retainer was given, but he
was clothed in silk before the trial began.
His pre- He prepared himself for the task he had undertaken with
paration for
the trial. exemplary diligence and assiduity. Carrying along with him
masses of despatches, examinations, and reports, which might
have loaded many camels, he retreated to a cottage near the lake
of Windermere, and there spent a long vacation more laborious
than the busiest term he had ever known in London. Although
possessing copiousness of extempore declamation, he was fond of
previously putting down in writing what he proposed to say in
public on any important occasion, and there are now lying before
me scraps of paper on which he had written during this autumn
apostrophes to the Lords respecting the Rohilla war, the cruelties
of Debi Sing, and the alleged spoliation of the Begums.
A.D. 1788. On the 19th of February, 1788, Mr. Burke having finished
a speech of four days, in which he generally opened all the
charges, Mr. Fox, his brother manager, proposed that there-
after the charges should be taken separately, and that not only
the evidence and arguments should be concluded by both sides,
but that the judgment should be given by the Court upon each
His first before another was taken in hand. Now Mr. Law for the first
Hastings.1" time opened his mouth as counsel for Mr. Hastings, and strongly
resisted this proposal. He distinctly saw that upon the mode of
procedure depended the issue of the impeachment, for there not
only was a strong prejudice against the accused, which would
have rendered perilous a speedy decision upon any part of his
LIFE OF LOUD ELLENBOKOUGH. 113
case, but the defence really arose from a view of the whole of CHAP.
his conduct while Governor-General ; — the difficulties in which v , •
he was placed palliating, if they did not justify, acts which, taken AiD* l788t
by themselves, appeared criminal. The managers, feeling the
advantage they must derive from having a separate trial, as it
were, on each charge, strenuously argued that this was the parlia-
mentary course according to Lord Straiford's case and other pre-
cedents,— that the due weight of evidence was most truly appre-
ciated while it was fresh in the memory, — and that facility of con-
ception, notwithstanding the vastness of the subject, might best be
attained by subdividing it into parts which the mind might be
capable of grasping. Law, in answering them, availed himself of
the opportunity to animadvert upon the violent language used by
Burke, saying that " the defendant, who was still to be presumed
to be innocent till proved to be guilty, had been loaded with
terms of invective and calumny in a strain which, never since the
days of Sir Walter Raleigh, had been used in an English court
of justice." Mr. Fox, interrupting him, said, that "vested with
a great trust from the House of Commons, he could not sit and
hear such a complaint, which proceeded on the principle that in
proportion as the accused was deeply guilty, the accuser, in
describing his crimes, was to be considered a calumniator."
Law, without any retractation or apology, pursued his argument
against the course proposed by the managers, insisting that while
it was contrary to the mode of proceeding in the courts of
common law, there was no parliamentary precedent to support it.
" My Lords," said he, " in answering one charge we may be
compelled to disclose to our adversary the defence which we
mean to employ upon others. We conceive that the whole case
should be before you ere you decide upon any part of it. On
the first charge are we, for the purpose of explaining the general
policy with which it is connected, to produce all the evidence
specifically calculated to repel several others ? On the second
charge is the whole of the exculpatory evidence to be given over
again ? Is this just ? is it reasonable ? is it expedient ? Would
VOL. m. I
114 REIGN OF GEORGE III.
CHAP. ^ De proposed in any other court professing to administer the
criminal law of the country ?"
The Peers withdrew to their own chamber to deliberate, and
on their return to Westminster Hall, the Lord Chancellor
Thurlow thus addressed the managers : " Gentlemen, I have it
in charge to inform you that you are to produce all your evi-
dence in support of the prosecution before Mr. Hastings is
called upon for his defence."
His contests During the examination of tKe witnesses there was a constant
and the ° sparring between the counsel and the managers, and blows were
°e^ro™ana~ interchanged with all the freedom of nisi prius. For example,
questions of when Sheridan was examining Mr. Middleton for the prosecu-
tion, and finding him rather adverse, addressed some harsh ob-
servations to him, Law thus interposed — " I must take the
liberty of requesting that the honourable manager will not make
comments on the evidence of the witness in the presence of the
witness. Such a course will tend to increase the confusion of a
witness who is at all confused, and affect the confidence of the
most confident. I shall therefore hope that the honourable ma-
nager, from humanity and decorum, will be more abstemious."
The managers having entirely failed to prove one particular act
of misconduct which they had imputed to Mr. Hastings, Law
expressed a wish that in future they would be more cautious in
avoiding calumny and slander. Burke answered, with much
indignation, that " he was astonished the learned gentleman
dared to apply such epithets to charges brought by the Com-
mons of Great Britain, whether they could or could not be
proved by legal evidence ; it was well known that many facts
could be proved to the satisfaction of every conscientious man
by evidence which, though in its own nature good and con-
vincing, would not be admitted by the technical canons of
lawyers; it would be strange indeed that a well founded
accusation should be denominated calumnious and slanderous,
because an absurd rule prevented the truth of it from being
established."
LIFE OF LOED ELLENBOROUGH. 115
Law. — " My Lords, I do not mean to apply the terms calumny C HAP.
and slander to any proceeding of the House of Commons ; but I ^ T H' ^
have the authority of that House for declaring that the honourable A.D. 1788-
member has, at your Lordships' bar, used calumnious and slanderous
expressions not authorised by them."
Fox. — " My Lords, it is highly irregular arid highly indecent in
an advocate to allude to what has taken place within the walls of
the House of Commons. The learned counsel has done worse, he
lias misrepresented that to which he presumed to allude. We have
offered in evidence the very documents upon the authority of which
the Commons preferred the charge now said to be calumnious and
slanderous."
Law. — " I cannot justly be accused of improperly referring to
proceedings in the House of Commons, as I have only repeated in
substance the account given of these proceedings by the honourable
manager himself in the hearing of your Lordships — and I have
therefore the highest authority for asserting that my client has suf-
fered from calumny and slander." *
Fox. — " Here is a new misrepresentation. My honourable friend
has not told your Lordships that anything said by the managers at
your Lordships' bar was a calumny or a slander, nor said anything1
which can be tortured into such a meaning. And, my Lords, we
will not proceed with the trial till your Lordships have expressed
your opinion of the language used by the learned gentleman. We
must return to the Commons for fresh instructions."
Thurlow, C. — " The words you complain of must be taken down
in writing."
They were taken down accordingly.
Law. — " I acknowledge them and abide by them."
The Peers were about to withdraw for deliberation to their
own chamber when it was suggested and agreed that the Chan-
cellor should admonish the learned counsel, " that it was con-
trary to order in the counsel to advert to anything that had
happened in the House of Commons ; that it was indecent to
apply the terms calumny and slander to anything which had
been said by their authority, and that such expressions must not
be repeated."
* This refers to a resolution of the House of Commons animadverting on
expressions used by Mr. Burke.
i2
116
BEIGN OF GEOKGE III.
C 1 HAP. The great struggle wasx whether the Lords were to be governed
v y ' by the rules of evidence which prevail in the courts below.
A ° 179?" These Burke treated with great contempt. On one occasion he
said : —
" The accused rests his defence on quibbles, and appears not to
look for anything more honourable than an Old Bailey acquittal,
where on some flaw in the indictment the prisoner is found not
guilty, receives a severe reprimand from the Judge, and walks
away with the execration of the bystanders. No rule which stands
in the way of truth and justice can be binding on this high court."
Law. — " In the name of my client, in the name of the people of
England, I protest against such doctrine. The rules of evidence
have been established because by experience they have been found
calculated for the discovery of truth, and the protection of innocence.
If any of them are erroneous, let them be corrected and amended,
but let them be equally binding upon your Lordships and the in-
ferior courts. Are you to dismiss every standard of right, and is a
party tried at your Lordships' bar — his honour and his life being at
stake — to be cast upon the capricious, I will not say corrupt, opinion
entertained or professed by a majority of your Lordships? Why do
you summon the Judges of the land to assist you but that you may
be informed by them for your guidance what are the rules of law ?
Unless the rules of law are to prevail, a reference to these reverend
sages would be a mockery, and you should order them for ever to
withdraw."
The Lords very properly held that the rules of law respecting
the admissibility of evidence ought to guide them ; and during
the trial they twenty-three times referred questions of evidence *
* I have examined the questions and answers as they appear in the Journals
of the House of Lords, but they are not instructive, or of much value. With a
single exception, they were not so framed as to decide any abstract point, and
merely asked whether, under the actual circumstances which occurred, specific
evidence was admissible.
One response to a question put was of general application, and might have
been advantageously cited in the late case of Melhuish v. Collier, 15 Q. B. 878.
Question put to the Judges during the
Trial of Warren Hastings, Esq.
Feb. 29, 1788.
Whether, when a witness, produced
and examined in a criminal proceeding
by a prosecutor, disclaims all kriow-
Judges1 reply to the said question, as
entered on the Lords Journals.
April 10th.
The Lord Chief Baron delivered the
unanimous opinion of the Judges, that,
when a witness produced and examined
LIFE OF LOED ELLENBOKOUGH. 117
to the Judges, being always governed by their advice.* But CHAP.
to the very conclusion of the trial Burke bitterly complained,
as often as any evidence which the Managers proposed to ad- A'D'
duce was excluded in compliance with the opinion of the Judges.
On one occasion, when evidence irregularly offered by the
Managers in reply had been very properly rejected, a Peer
called Burke to order for arguing against a decision of the
House. Mr. Hastings's leading counsel contemptuously added,
that he would not waste a moment of their Lordships' time in
supporting a judgment which, being founded on a rule of law,
wanted no other support. Burke : " I have become accustomed
to such insolent observations from the learned gentlemen re-
tained to obstruct our proceedings, who, to do them justice,
are as prodigal of bold assertions as they are sparing of ar-
guments."
When the Lords disallowed the evidence of the history of the
Mahratta war, Law having merely said, " It would be an insult to
their Lordships, and treachery to his client, were he to waste one
minute in stating the objections to it," Burke expressed deep
regret that so many foreigners were present ; but (looking into
a box in which sate the Turkish ambassador and his suite, he
added) " let us hope that some of them do not understand the
English language, as the insolent remarks we are compelled to
hear from counsel would be a disgrace to a Turkish court of
justice."
Law was more hurt when, at a later period of the trial, having
ledge of any matter so interrogated, it in a criminal proceeding by a prose-
be competent for such prosecutor to cutor disclaims all knowledge of any
pursue such examination, by proposing matter so interrogated, it is not com-
a question containing the particulars potent for such prosecutor to pursue
of an answer supposed to have been such examination, by proposing a ques-
made by such witness before a Com- tion containing the particulars of an
mittee of the House of Commons, or answer supposed to have been made
in any other place, and by demanding before a Committee of the House of
of him whether the particulars so sug- Commons, or in any other place, and
gested were not the answers he had by demanding of him whether the par-
so made ? ticulars so suggested were not the
answer he had so made.
* The same course was subsequently followed on the impeachment of Lord
Melville, and is now to be considered the established law of parliament.
118 KEIGN OF GEOEGE III.
called on Burke to retract an assertion alleged to be unfounded,
the Right Honourable Manager, putting on a look of ineffable
A D 1792" scorn) merely said in a calm tone, " My Lords, the counse.
deserves no answer." Soon after, Law, complaining of the delay
caused by the frivolous questions on evidence raised by the
Managers, added, " The Right Honourable Manager to whom
I chiefly allude, always goes in a circle, never in a straight line.
The trial will bring discredit on all connected with it. We owe
it to our common character to prevent unnecessary delay."
"Common character!" angrily interrupted the Manager, "I
can never suffer the dignity of the House of Commons to be im-
plicated in the common character of the bar. The learned
counsel may take care of his own dignity — ours is in no danger
except from his sympathy."
Pebi sing's But it was by the rejection of evidence of the alleged cruelties
ase' of Raja Debi Sing that Burke was driven almost to madness.
His recital of these in his opening speech had produced the
most tremendous effect, curdling the blood of the stoutest men,
and making ladies shriek aloud and faint away.* A witness
being called to prove these horrible charges, the counsel for
Mr. Hastings objected that the evidence was inadmissible as
there was no mention of such cruelties in any article of the
impeachment, and it was not even now suggested that Mr.
Hastings had directed them, or in any way sanctioned or ap-
proved of them. The Lords, after consulting the Judges,
determined that the evidence could not be received.
* " The treatment of the females cannot be described : dragged from the
inmost recesses of their houses, which the religion of the country had made so
many sanctuaries, they were exposed naked to public view : the virgins were
carried to courts of justice, where they might naturally have looked for pro-
tection, but they looked for it in vain ; for in the face of the ministers of justice,
in the face of assembled multitudes, in the face of the sun, those tender and
modest virgins were brutally violated. The only difference between their treat-
ment and that of their mothers, was that the former were dishonoured in open
day, the latter in the gloomy recesses of their dungeon. Other females had the
nipples of their breasts put in a cleft of bamboo and torn off. What modesty
in all nations most carefully conceals, this monster revealed to view, and con-
sumed by slow fires ; and the tools of this monster, Debi Sing— horrid to tell ! —
carried their natural brutality so far as to introduce death into the source of
generation and of life."
LIFE OF LO&D ELLENBOEOUGH. 119
Mr. Burke : " I must submit to your Lordships' decision, but I CHAP,
must say at the same time that I have heard it with the deepest <w_ -^_/
concern ; for if ever there was a case in which the honour, the jus- A.D. 1788-
tice, and the character of a country were concerned, it is that which '
relates to the disgusting cruelties and savage barbarities perpetrated
by Debi Sing, under an authority derived from the British Govern-
ment, upon the poor forlorn inhabitants of Dinagepore — cruelties
and barbarities so frightfully and transcendently enormous, that the
bare mention of them has filled with horror every class of the in-
habitants of this country. The impression which even my feeble
representation of these cruelties and barbarities in this place pro-
duced upon the hearts and feelings of all who heard me is not to
be removed but by the evidence that shall prove the whole a
fabrication. The most dignified ladies of England swooned at the
bare recital of these atrocities, and is no evidence now to be received
to prove that my forbearing statement fell far short of the appalling
reality ?
Law : " It is not to be borne that the Right Honourable Manager
shall thus proceed to argue in reprobation of their Lordships'
judgments.
Burke : " Nothing can be farther from my intention than to
reprobate any decision coming from a Court for which I entertain
the highest respect. But I am not a little surprised to find that the
learned counsel should stand forth the champion of your Lordships'
honour. I should have thought that your Lordships were the best
guardians of your own honour. It never could be the intention
of the Commons to sully the honour of the House of Peers. As
their co-ordinate estate in the legislature the Commons are perhaps
not less interested than your Lordships in the preservation of the
honour of this noble House ; and therefore we never could think of
arguing in reprobation of any of its decisions. But I may venture
to suggest that the question which you have put to the Judges is
not framed in the manner to determine whether what the Commons
propose is reasonable or unreasonable. If the Commons had been
suffered to draw up their question themselves, they would have
worded it in a very different manner, and a very different decision
might have been given by your Lordships. It is true that the
cruelties of Debi Sing are not expressly charged in the Article to
have been committed by the authority of Mr. Hastings ; but the
Article charges Mr. Hastings with having established a system
which he knew would be, and in point of fact had actually been at-
tended with cruelty and oppression. The Article docs not state
120
REIGN OF GEOEGE III.
CHAP, bv whom the acts of cruelty have been committed, but it states
XL VII
t ^ cruelty in general, and of such cruelty so charged the Managers
A.D. 1788- have a right to give evidence. The character of the nation will
1792< suffer, the honour of your Lordships will be affected, if when the
Commons of England are ready to prove the perpetration of bar-
barities which have disgraced the British name, and call for ven-
geance on the guilty heads of those who have been in any degree in-
strumental in them, the inquiry is to be stopped by a miserable
technicality. Suffer me to go into proof of those unparalleled
barbarities, and if I do not establish them to the full conviction of
this House and of all mankind, if I do not prove their immediate
and direct relation to and connexion with the system established by
Mr. Hastings, then let me be branded as the boldest calumniator
that ever dared to fix upon unspotted innocence the imputation of
guilt. My Lords, I have done. My endeavour has been to rescue
the character and justice of my country from obloquy. If those
who have formerly provoked inquiry — if those who have said
that the horrid barbarities which I detailed had no existence
but that which they derived from the malicious fertility of my
imagination — if those who have said I was bound to make good
what I had charged, and that I should deserve the most opprobrious
names if I did not afford Mr. Hastings an opportunity of doing
away the impression made by the picture of the savage cruelties of
Debi Sing — if these same persons who so loudly called for inquiry
now call upon your Lordships to reject the proofs which they before
challenged me to bring, the fault is not mine. Upon the heads of
others therefore, and not upon those of the Commons of Great
Britain, let the charge fall that the justice of the country is not to
have its victim. The Commons stand ready to make good their
accusation, but the defendant shrinks from the proof of his
guilt."
Law [according to the original report of the trial, " with unex-
ampled warmth, whether real or assumed "] : " My Lords, the
Right Honourable Manager feels bold only because he knows the
proof which he wants to give cannot be received. He knows that
from the manner in which the charge is worded your Lordships
cannot if you would admit the proof without violating the clearest
rules and principles of criminal procedure. But let the Commons
put the details of those shocking cruelties into the shape of a charge
which my client can meet, and then we will be ready to hear every
proof that can be adduced. And if, when they have done that, the
much-injured gentleman I am now trying to shield from calumny
LIFE OF LOKD ELLENBOROTJGH. 121
does not falsify every act of cruelty that the Honourable Managers
shall attempt to prove upon him, MAY THE HAND OF THIS HOUSE
AND THE HAND OF GOD LIGHT UPON HIM." * A.D. 1788-
1792.
This imprecation on the head of the client was deemed more
cautious than magnanimous, and it was thus criticised by Fox in
summing up the evidence on this Article : —
" The counsel for the defendant have invoked the judgment of
your Lordships and the vengeance of Almighty God, not on their
own heads, but on the head of their client, if the enormities of Debi
Sing, as stated by my Right Honourable Friend, shall be proved
and brought home to him. I know not how the defendant may
relish his part in this imprecation ; but in answer to it, if the time
should come when we are fairly permitted to enter upon the proof of
those enormities, I would in my turn invoke the most rigorous
justice of the Peers and the full vengeance of Almighty God, not
on the head of my Right Honourable Friend, but on my own, if I
do not prove those enormities and fix them upon the defendant to
the full extent charged by my Right Honourable Friend ; and this
I pledge myself to do under an imprecation upon myself as solemn
as the learned gentleman has invoked upon his client."
These imprecations can only be considered rhetorical artifices ;
both sides were well aware that the contingency on which they
were to dare the lightning of Heaven could never arrive, for
the Articles of Impeachment, as framed, clearly did not admit
the proof, and a fresh Article could not then have been intro-
duced. In truth, the cruelties of Debi Sing had been much
exaggerated, and Mr. Hastings, instead of instigating, had put
a stop to them. His counsel must have deliberated long before
they resolved to object to the admissibility of the evidence, and
they were probably actuated by a dread of the prejudice it might
create before it could be refuted.
Law turned to good account the frivolity and vanity of
Michael Angelo Taylor, a briefless barrister, who, although the
* The reporter, who seems to have had a spite against Mr. Law, adds, " After
this ejaculation, delivered in a tone of voice not unlike that of the theatric hero,
when he exclaims ' Kichard is hoarse with calling thee to battle ! ' the scene
closed." — ' History of the Trial of Warren Hastings, Esq.,' published by Debrett,
Part III., p. 54-56.
122
REIGN OF GEOEGE III.
xrra kutt °^ *^e Northern Circuit, had contrived to get himself ap-
v » ' pointed a Manager. An important point coming on for argu-
X 1792" nient, Law observed — " It is really a pity to waste time in
discussing such a point which must be clear to all lawyers ; this
is no point of political expediency, it is a mere point of law,
and my honourable and learned Friend there (pointing to
Michael Angelo), from his accurate knowledge of the law,
which he has practised with so much success, can confirm fully
what I say." Michael puffed, and swelled, and nodded his
head — when Burke ran up to him quite furious, and, shaking
him, said, " You little rogue, what do you mean by assenting to
this ? "
Law was most afraid of Sheridan, but once ventured to try to
ridicule a figurative observation of his that " the treasures in the
Zenana of the Begum were an offering laid by the hand of
piety on the altar of a saint," by asking, " how the lady was to
be considered a saint, and how the camels when they bore the
treasure were to be laid upon the altar ? " Sheridan — " This is
the first time in my life that I ever heard of special pleading on
a metaphor, or a bill of indictment against a trope ; but such
is the turn of the learned gentleman's mind that when he at-
tempts to be humorous no jest can be found, and when serious
no fact is visible."
Considering that the Managers were assisted by the legal
acumen and experience of Dr. Lawrence, Mr. Mansfield, and
Mr. Pigott, it is wonderful to see what questions they put and
insisted upon. For example, it being proved that Mr. Hastings
had authorised the letting of certain lands to Kelleram and
Cullian Sing, supposed to be cruel oppressors, they asked the
witness — " What impression the letting of the lands to Kelleram
and Cullian Sing made on the minds of the inhabitants of the
country ? " Before there was time to object, the witness blurted
out, " They heard it with terror and dismay." Law insisted
that this answer should be expunged, and that the question
should be overruled, it not being in the competence of the
witness to speak of anybody's feelings but his own. The
LIFE OF LORD ELLENBOROUGH. 123
Managers standing up strenuously for the regularity of their
question and the fitness of the answer to it, the Peers adjourned ' - » - '
from Westminster Hall to their own chamber, and, after a
reference to the Judges, Lord Chancellor Thurlow announced
to the Managers that the question objected to could not be
regularly put, and that the answer to it must be expunged.
Nearly a whole day was wasted in this foolish controversy.
On the 14th of February, 1792, and the seventy -fifth day of A.D. 1792.
the trial, Law thus beg-an to open the defence : — Law's open-
ing of the
" Your Lordships are now entering on the fifth year of a trial, to
which the history of this or any other country furnishes nothing- like
a parallel ; and it at length becomes my duty to occupy somewhat
longer the harassed and nearly exhausted attention of your Lord-
ships, and to exercise reluctantly the expiring patience of my client.
Mr. Hastings, by the bounteous permission of that Providence whicn
disposes of all things, with a constitution weakened by great and
incessant exertions in the service of his country and impaired by the
influence of an unwholesome climate — suffering from year to year
the wounds which most pierce a manly and noble mind — the passive
listener to calumny and insult — thirsting with an honourable ardour
for the public approbation which illustrious talents and services ever
merit — while malignity and prejudice are combining to degrade him
and blacken his fair reputation in the eyes of his country — subdued
by the painful progress of a trial protracted to a length unexpe-
rienced before by any British subject, and unprecedented in the
annals of any other country — under all these accumulated hardships
Mr. Hastings is alive this day, and kneeling at your Lordships' bar
to implore the protection, as he is sure of the justice, of this august
tribunal. To a case pampered — I had almost said corrupted — by
luscious delicacies, the advocates of my client can only bring plain
facts and sound arguments ; but we can show that eloquence has been
substituted for proofs, and acrimony has supplied the place of rea-
soning. I could never be brought to believe that justice was the end
looked for, where vengeance was the moving power."
After an exordium not wanting in dignified solemnity, although
creating a wish for more purity and simplicity of diction, he
proceeded to take a general view of the origin of the prosecu-
tion, of the charges into which it was divided, of the feeble
124 REIGN OF GEOKGE III.
manner in which they had been supported, and of the evidence
by which they were to be repelled. Upon the whole, he rather dis-
A.D. 1792. app0mted expectation. Although he had shown spirit and energy
while wrangling with the managers about evidence, and although
still undaunted by the matchless power of intellect opposed to
him, — now when he had all Westminster Hall to himself and he
was to proceed for hours and days without interruption or per-
sonal contest, he quailed under the quietude, combined with the
strangeness and grandeur, of the scene. He by no means satisfied
the lively Miss Burney, then attached to the Royal household,
who were all, as well as the King and Queen, devoted enemies
to the impeachment, and thought no praise sufficiently warm
which could be bestowed upon the accused. This is her dis-
paraging language in her Diary : —
" To hear the attack the people came in crowds; to hear the de-
fence they scarcely came in tete-a-tete. Mr. Law was terrified
exceedingly, and his timidity induced him so frequently to beg
quarter from his antagonists, both for any blunders and any defici-
encies, that I felt angry even with modest egotism. We (Windham
and I) spoke of Mr. Law, and I expressed some dissatisfaction that
such attackers should not have had able and more equal opponents.
* But do you not think that Mr. Law spoke well,' cried Windham —
i clear, forcible?' ' Not forcible/ cried I — * I would not say not
dear.1 i He was frightened,' said Windham ; ' he might not do
himself justice. I have heard him elsewhere, and been very well
satisfied with him ; but he looked pale and alarmed, and his voice
trembled.' "
However, she adds —
" In his second oration Mr. Law was far more animated and less
frightened, and acquitted himself so as almost to merit as much com-
mendation as, in my opinion, he had merited censure at the opening."
It is a curious fact that the State Trial which, of all that have
taken place in England, excited the most interest is the worst
reported. We have no account of it except from a set of igno-
rant short-hand writers, who, although they could take down
evidence with sufficient accuracy, were totally incapable of com-
LIFE OF LORD ELLENBOROUGH. 125
prehending the eloquent speeches which were made on either CHAP.
side. Burke having observed that " virtue does not depend • » '
upon climates and degrees" he was reported to have said, A'D' i79J~
" virtue does not depend upon climaxes and trees"
The only authentic specimens I can give of Mr. Law's oratory His proce-
when he was addressing the Lords on the merits of the impeach- peroration
ment are the prooemium and the peroration of his speech on the g" ^
B^gum charge, which are now in my possession, written by his own charge,
hand, and which he had elaborately composed at full length, and
got by heart, although he trusted to short notes for his com-
ments upon the evidence :
" Again, my Lords, after a further period of protracted solicitude,
Mr. Hastings presents himself at your Lordships' bar, with a temper
undisturbed, and a firmness unshaken, by the lingering torture of a
six years' trial.
11 God forbid that in the mention of this circumstance I should be
understood to arraign either the justice or mercy of this tribunal.
No, my Lords, all forms of justice have been well observed. My
blame lights on the law, not on your office, ' which you with truth
and mercy minister.' As little I advert to this circumstance as
seeking on this account unduly to interest your Lordships' compas-
sion and tenderness in his favour. No, my Lords, as he has hitherto
disdained to avail himself of any covert address to these affections,
so your Lordships may, I trust, be assured that he does not feel him-
self more disposed at this moment than at any former period of his
trial to sully the magnanimity of his past life by the baseness of its
close.
" He does not even now on his own account merely condescend to
lament the unfortunate peculiarity of his destiny which has marked
him out as the only man since man's creation who has existed the
object of a trial of such enduring continuance ; for, my Lords, he
has the virtue, I trust, as far as human infirmity and frailty will
permit, to lose the sense of his own immediate and peculiar sufferings
in the consolatory reflection which his mind presents to him — that as
he is in the history of mankind the first instance of this extraordi-
nary species of infliction, so unless he vainly deems of the effect of
this instance upon the human mind, and has formed a rash and vi-
sionary estimate of the generosity and mercy of our nature, it will be
the last.
" He trusts, indeed, that with reference to his own country at
126
REIGN OF GEORGE III.
CHAP.
XLVII.
A.D. 1792-
1795.
least, he may venture to predict, what the great Roman historian,
Livy, in contrasting a new and barbarous punishment, inflicted in the
infancy of the Roman empire, with the subsequent lenity and huma-
nily of the system of penal laws which obtained amongst his country-
men, ventured in nearly the same words to declare — ' Primum ulti-
mumque illud supplicium apud Roman os exempli parum memoris
legum humanarum fuit.' * Dismissing, however, a topic which in the
present advanced stage of this trial has become at least as material
for consideration with a view to the happiness and safety of others as
his own, the defendant only requests it may for the present so far
dwell in your Lordships' memory as to exempt him from the blame
of impatience if, thus circumstanced, he has ventured to expect such
a degree of accelerated justice as a just attention to other public
demands on your Lordships' time may consistently allow.
" He cannot but consider the present moment as on some accounts
peculiarly favourable to the consideration and discussion of the many
important questions which present themselves for your Lordships'
judgment in the course of this trial.
" In a season of recommencing difficulty and alarm we learn better
how to estimate the exigence of the moment, and the merit of that
moment well employed, than in the calmer season of undisturbed
tranquillity.
" We know then best how to value the servant and the service.
We hear with awakened attention and conciliated favour the account
which vigour, activity, and zeal are required to render of their
efforts to save the state — and their success in saving it. In receiv-
ing the detail which ardent and energetic service is obliged to lay
before us, by a sort of inconsistent gratitude we almost wish to find
some opportunities of recompense in the voluntary exercise of our
* This, it will be recollected, relates to the case of Mettius Fuffetius, who
for his treachery was sentenced to a frightful death by Tullus Hostilius. The
historian in a few lines beautifully narrates the sentence, the execution, and the
behaviour of the lookers on : — " Turn Tullus : ' Metti Fuffeti,' inquit, ' si ipse dis-
cere posses fidem ac fcedera servare, vivo tibi ea disciplina a me adhibita esset.
Nunc quoniam tuum insanabile ingenium est, at tu tuo supplicio doce humanum
genus ea sancta credere, quae a te violata sunt. Ut igitur paullo ante animum
inter Fidenatem Romanamque rem ancipitem gessisti, ita jam corpus passim
distrahendum dabit. EXINDE, DUABIS ADMOTIS QUADRIGIS, IN CURRUS EARUM
DISTENTUM ILLIGAT METTIUM — DEINDE IN DIVERSUM ITER EQUI CONCITATI,
LACERUM IN UTROQUE CDRRU CORPUS, QUA INH^ESERANT VINCULIS MEMBRA,
PORTANTES.'
" Avertere omnes a tanta foeditate spectaculi oculos. Primum ultimumque illud
supplicium apud Romanos exempli parum memoris legum humanarum fuit, in aliis
gloriari licet, nulli gentium mitiores placuisse poanas." — Lib. I. c. 28.
LIFE OF LORD ELLENBOROUGH. 127
own virtues — some errors which candour may conceal — some ex- CHAP.
XL V II.
cesses which generosity may be required to palliate. v— =v '
" The same motives which at such a season induce us to appre- A.D. 1792-
ciate thus favourably the situation, duties, difficulties, and deserts of
hazardous and faithful service, induce us also to contemplate with
more lively indignation the open attacks of undisguised hostility ;
with more poignant aversion and disgust the cold and reluctant re-
quitals of cautious friendship, and with still more animated senti-
ments of detestation and abhorrence, the treacherous, mischievous
attacks of emboldened ingratitude.
" These are sentiments which the present moment will naturally
produce and quicken in every mind impregnated with a just sense of
civil and political duty. Can I doubt their effect and impression
here, where we are taught, and not vainly taught, to believe that
elevation of mind and dignity of station are equally hereditary, and
that your high court exhibits at once the last and best resort of na-
tional justice, and the purest image of national honour?
" To you, my Lords, unadmonished by the ordinary forms and
sanctions by which in other tribunals the attention is attracted and
the conscience bound to the solemn discharge of judicial duty, the
people of England, by a generous confidence equally honourable to
themselves and you, have for a long succession of ages entrusted to
your own unfettered and unprompted, because unsuspected, honour
— have entrusted the supreme and ultimate dispensation of British
justice.
" Such then being the tribunal, and such the season at which the
defendant is required to account before it for certain acts of high
public concernment done in the discharge of one of the greatest
public trusts that ever for so long and in so arduous a period fell to
the lot of any one man to execute, he cannot but anticipate with the
most sanguine satisfaction that fair, full, and liberal consideration
of his difficulties and of his duties, of the means by which those
difficulties were overcome, and the manner in which those duties
were discharged, which he is sure of receiving at your Lordships'
hands.
" The great length of your Lordships' time which this trial has
already occupied, and the further portion of it which it must yet ne-
cessarily consume, renders it unpardonable to waste a moment upon
any subject not intimately connected with the very substance of the
charges which yet remain to be discussed. I will therefore without
delay address myself to the immediate and actual topics which are
most intimately connected with the charge now before you, which is
128
REIGN OP GEORGE III.
CHAP.
XLVIL
A.D. 1792-
1795.
Peroration.
contained in the Second Article of Impeachment, and respects
principally the supposed injuries of the mother and grandmother of
the Nabob of Oude — ladies usually distinguished by the name of the
BEGUMS."
A speech of many hours he concluded with this PERORATION :
" I have now at a greater length than I could have wished gone
through the vastness of evidence which the managers have thought
fit to adduce, and have discussed many of the arguments which they
have thought fit to offer in support of this charge, and have brought
more immediately before your Lordships' view such parts of that
evidence as completely repel the conclusions the managers have
attempted to infer from an unfair selection and artificial collation of
other parts of that same evidence. I have also generally opened to
your Lordships the heads of such further evidence as we shall on our
part, in further refutation of the criminal charges contained in this
Article, submit to your Lordships' consideration, in order to establish
beyond the reach of doubt that Mr. Hastings, in all the transactions
now in question, behaved with a strict regard to every obligation of
public and private duty, and effectually consulted and promoted the
real and substantial interests of the country, and the honour and
credit of the British name and character. Stripping this Article
therefore of all the extraneous matter with which it has been very
artfully and unfairly loaded, and reducing it to the few and simple
points of which in a fair legal view of the subject it naturally
consists — the questions will be only those which in the introduction
to my address to your Lordships on this charge I ventured to state,
namely, whether the Begums, by their conduct during the dis-
turbances occasioned by the rebellion, had manifested such a degree
of disaffection and hostility towards the British interests and safety,
as warranted the subtraction of the guarantee which had been
theretofore voluntarily and gratuitously interposed for their pro-
tection ; and next, whether after that guarantee was withdrawn the
Nabob was not authorized upon every principle of public and pri-
vate justice to reclaim his rights, and we to assert our own.
" If there be those who think Mr. Hastings ought to have pursued
a formal detailed judicial inquiry on the subject of the notorious
misconduct of the Begums, before he adopted any measures of pre-
vention or punishment in respect of them ; — that he should have
withheld his belief from the many eye and ear witnesses of the mis-
chief they were hourly producing and contriving against us ; — I say
to those who think that the unquestionable and then unquestioned
LIFE OF LORD ELLENBOROUGH. 129
notoriety of a whole country — corroborated by the positive testi- CHAP,
mony of all the officers then in command in that country, speaking
to facts within their own observation and knowledge, is not a
ground for immediate political conduct — to persons thus thinking I
am furnished with little argument to offer. I have no record of the
Begums' conviction engrossed on parchment to lay before you — I
have only that quantity of evidence which ought to carry conviction
home to every human breast accessible to truth and reason.
" God forbid that I should for a moment draw in question the
solemn obligation of public treaties. I am contending for their most
faithful, honourable, and exact performance. We had pledged our
word to grant the most valuable and humane protection — we asked
as a recompense only the common offices of friendship and the mere
returns of ordinary gratitude. How were they rendered ? When
the Palace of Shewalla and the streets of Ramnagur were yet reeking
with the blood of our slaughtered countrymen ; — when that bene-
factor and friend, to whose protection, as the Begum herself asserts,
her dying lord, Sujah Dowla, had bequeathed her, had scarce rescued
himself and his attendants from the midnight massacre prepared for
him at Benares ; — when he was pent up with a petty garrison in the
feeble fortress of Chunargur expecting the hourly assault of an
elated and numerous enemy; — when his fate hung by a single thread,
and the hour of his extinction and that of the British name and
nation in India would, according to all probable estimate, have been
the same ; — in that hour of perilous expectation he cast many an
anxious northward look to see his allies of Oude bringing up their
powers, and hoped that the long-protected and much-favoured house
of Sujah. Dowla would have now repaid with voluntary gratitude the
unclaimed arrears of generous kindness. As far as concerned the
son of that Prince, and who by no fault of Mr. Hastings had least
benefited by British interposition, he was not disappointed. That
Prince who had been in the commencement of his reign robbed of
his stipulated rights under the treaties of Allahabad and Benares,
and had been unjustly manacled and fettered by that of Fryzabad,
which restrained him from his due resort to national treasure for the
necessary purposes of national defence and the just discharge of
national incumbrances, found an additional motive for his fidelity in
the accumulated honourable distresses and dangers of his allies.
From the mother and grandmother of that Prince, enriched by his
extorted spoils, and bound as they were by every public as well as
private tie of gratitude and honour, Mr. Hastings looked, indeed,
VOL. III. K
130 KEIGN OF GEOEGE III.
CHAP, for a substantial succour ; but he looked in vain. It was not, how-
t XLyH- ever, as passive and unconcerned spectators that they regarded this
A.D. 1792- anxious and busy scene of gathering troubles. No, — to the remotest
1795. iimits of their son's dominions their inveterate hate and detestation
of the British race was displayed in every shape and form which
malice could invent and treachery assume. In the immediate seats of
their own protected wealth and power, at the reverenced threshold
of their own greatness, in sight of their nearest servant who best
knew their genuine wishes, and was by that knowledge best prepared
to execute them — the British commander of a large force, marching
to sustain the common interests of Great Britain and its allies, is
repelled by the menace of actual hostility from the sanctuary to
which he had fled in assured expectation of safety. At the same
period another British commander, abandoning his camp to the
superior force of a rebellious chief, linked in mischievous confederacy
with the Begums, hears amidst the groans of his own murdered fol-
lowers the gratulation of his enemies' success and his own defeat
proclaimed in discharges of cannon from the perfidious walls of
Fryzabad. And during all this dismay and discomfiture of our forces
in the neighbourhood of their residence, the eunuchs, the slaves of
their palace, under the very eye of our own insulted officers, array
and equip a numerous and well-appointed force to brave us in the
field.
" If these acts do indeed consist with good faith, or are such light
infractions of it as merit no considerable degree of public animad-
version— then I resign Mr. Hastings to the unqualified censure of
mankind and the overwhelming condemnation of your Lordships.
But if to have connived at another's treachery at such a crisis would
have been effectually to prove and proclaim his own; — if to have
continued undiminished to the Begum the enormous fruits of her own
original extortion and fraud, applied, as they recently had been, to
the meditated and half-achieved purpose of our undoing, would have
been an act of political insanity in respect to our own safety, and of
no less injustice to our friend and ally, the proprietor of these trea-
sures ; — then was Mr. Hastings not warranted only, but required and
without alternative or choice compelled, to apply that degree of
lenient, sober, and salutary chastisement, which was, in fact, admi-
nistered on this occasion. To have endured with impunity these
public acts of hostile aggression, would have been to expose our tame
irrational forbearance to the mockery arid scorn of all the Asiatic
world. Equally removed from the dangerous extremes of unrelenting
LIFE OF LOED ELLENBOEOUGH. 131
severity and unlimited concession, he had the good fortune to pre- CHAP,
serve in every part of India a dread of our power, a respect for our >
justice, and an admiration of our mercy. These are the three great A.D. 1795.
links by which the vast chain of civil and political obedience is
riveted and held together in every combination of human society.
By the due exertion and display of such qualities as these, one faithful
servant was enabled to give strength, activity, stability, and perma-
nence, and at last to communicate the blessings of peace and repose
to the convulsed members of our Eastern empire. This age has seen
one memorable and much-lamented sacrifice to the extreme and
excessive indulgence of the amiable virtues of gentleness and mercy.*
The safety of our country, the order and security of social life, the
happiness of the whole human race, require that political authority
should be sustained by a firm, regular, and discriminate application
of rewards and punishments."
Mr. Law was supposed to do his duty in a manly and effective
manner ; but Dallas was more polished, and Plomer more impres-
sive. The leading counsel gained renown in his squabbles with
Burke about evidence, rather than when he had such an oppor-
tunity of making a great oration as Cicero might have envied.
In the early stages of the trial his labour and his anxiety were
dreadful, and he often expressed sincere regret that he had been
concerned in it ; but when he had become familiar with the
subject, and public opinion, with which the Peers evidently sym-
pathised, turned in favour of his client, he could enjoy the eclat
conferred upon him from pleading before such a tribunal, for
such a client, against such accusers.
At last on the 23rd of April, 1795, being the one hundred and Conclusion
forty-fifth day of the trial, and in the tenth year from the com-
mencement of the crimination, he had the satisfaction to hear his l
client acquitted by a large majority of Peers ; and he himself was
warmly congratulated by his friends upon the happy event. It
was expected that Burke would then have shaken hands with
him ; but still in Burke's sight Debi Sing could hardly have
been more odious.
* Alluding, I presume, to the fate of Louis XVI.
K2
132
REIGN OF GEORGE III.
CHAP.
XLVII.
A.D. 1795.
Authorship
of the
epigram on
Burke.
Law's great
advance in
business
from his
fame as
counsel for
Hastings.
Law had long the credit of making the celebrated epigram
upon the leader of the impeachment —
" Oft have we wonder'd that on Irish ground
No poisonous reptile has e'er yet been found ;
Keveal'd the secret stands of Nature's work,—
She saved her venom to produce her Burke."
But it was composed by Dallas, as I was told, spontaneously,
by Dallas himself, when he was Chief Justice of the Common
Pleas. A most rankling hatred continued to subsist between
Burke and all Mr. Hastings's counsel. He regarded them as
venal wretches, who were accomplices in murder after the fact ;
and they, in return, believed the accuser to have relentlessly
attempted to bring down punishment upon innocence that he
might gratify his malignity and his vanity. Yet they had never
transgressed the strict line of their duty as advocates ; and he
always sincerely believed that he was vindicating the wrongs
of millions of our fellow- subjects in Asia. The three advo-
cates considered their defence of Mr. Hastings as the most
brilliant and creditable part of their career ; and the accuser,
undervaluing his writings against the French Revolution, which
he thought only ephemeral pamphlets, exhorted Dr. Laurence,
with his dying breath, to collect and publish an authentic report
of the trial, saying, " By this you will erect a cenotaph most
grateful to my shade, and will clear my memory from that load
which the East India Company, King, Lords, and Commons,
and in a manner the whole British nation (God forgive them),
have been pleased to lay as a monument on my ashes."
Law's fees, considerably exceeding 30007., were a poor pecu-
niary compensation to him for his exertions and his sacrifices in
this great cause ; but he was amply rewarded by his improved
position in his profession. When the trial began he had little
more than provincial practice, and when it ended he was next to
Erskine — with a small distance between them. Independently
of the real talent which he displayed, the very notoriety which he
gained as leading counsel for Mr. Hastings was enough to make
LIFE OF LOED ELLENBOROUGH. 133
his fortune. Attorneys and attorneys' clerks were delighted to CHAP,
find themselves conversing at his chambers in the evening with v , '
the man upon whom all eyes had been turned in the morning in AlDt 1795'
Westminster Hall — a pleasure which they could secure to them-
selves by a brief and a consultation. From the oratorical school
in which he was exercised while representing Warren Hastings,
Law actually improved considerably in his style of doing business ;
and by the authority he acquired he was better able to cope with
Lord Kenyon, who bore a strong dislike to him, and was ever
pleased with an opportunity to put him down. This narrow-
minded and ill-educated, though learned and conscientious, Chief
Justice, had no respect for Law's classical acquirements, and had
been deeply offended by the quick-eared Carthusian laughing at
his inapt quotations and false quantities. Erskine, who had
much more tact and desire to conciliate, was the Chief Justice's
special favourite, and was supposed to have his "ear" or " the
length of his foot." Law, having several times, with no effect, He resents
hinted at this partiality, — after he had gained much applause Kenyon's
by his speech on the Begum charge, openly denounced the
injustice by which he suffered. In the course of a trial at
Guildhall he had been several times interrupted by the Chief
Justice while opening the plaintiffs case, whereas Erskine's
address for the defendant was accompanied by smiles and nods
from his Lordship, which encouraged the advocate, contrary to
his usual habit, to conclude with some expressions of menace
and bravado. Law having replied to these with great spirit
and effect, thus concluded :
" Perhaps, gentlemen, I may without arrogance assume that I
have successfully disposed of the observations of my learned friend,
and that the strong case I made for. my client remains unimpeached.
Still my experience in this Court renders me fearful of the result.
I dread a power with which I am not at liberty to combat. When I
have finished, the summing up is to follow."
Looking at Erskine he exclaimed,
" Non me tua fcrvida terrent
Dicta ferox — "
134
REIGN OF GEOEGE III.
C HAP. jje then made a bow to the Chief Justice, and as he sat down
' , ' he added in a low, solemn tone,
A.D. 1795.
— " Di me terrent et JUPITER HOSTIS."
Lord Kenyon, thinking that the quotation must be apologetical
and complimentary, bowed again and summed up impartially.
When it was explained to him, his resentment was very bitter,
and to his dying day he hated Law. But henceforth he stood
in awe of him, and treated him more courteously.
At the breaking out of the French Revolution, Law joined
the very respectable body of alarmist Whigs who went over to
the Government, he being actuated, I believe, like most of them,
by a not unreasonable dread of democratical ascendency, rather
than by any longing for official advancement. However, he
refused offers of a seat in parliament — even after the im-
peachment was determined. In society he acted the part of a
strong Pittite, and he was accused of displaying " renegade
rancour " against his former political associates : — but his friends
asserted that " he had only been a Whig as Paley, his tutor, had
been a Whig, and that he uniformly was attached to the prin-
ciples of freedom, although he was always, for the good of the
people, a friend to strong government."
His position on the circuit fully entitled him to the ap-
pointment which he now obtained of Attorney-General of the
County Palatine of Lancaster, and he was fairly destined to
higher advancement, when Scott and Mitford, the present law
officers of the Crown, should be elevated to the bench.
Meanwhile he conducted some State prosecutions in the
provinces. Mr. Walker, a respectable merchant at Manchester,
and several others being indicted on the false testimony of an
informer for a conspiracy to overturn the Constitution, and to
assist the French to invade England, Law conducted the case
for the Crown, and Erskine came special against him. At first
the defendants seemed in great jeopardy, and Mr. Attorney of
the County Palatine, believing the witness to be sincere, eagerly
pressed for a conviction. A point arising about the admis-
Heis
opposed to
Erskine in
Rex v.
Walker.
LIFE OF LOKD ELLENBOKOUGH. 135
sibility of a printed paper, Erskine theatrically exclaimed, CHAR
" Good God, where am I ? " < , — '->
A.D. 1795,
Law (with affected composure) : " In a British Court of justice ! "
Erskine (indignantly) : " How are my clients to be exculpated ? "
Law (in a still quieter tone) : " By legal evidence."
Erskine (much excited): " I stand before the people of England
for justice."
Law (bursting out furiously) : " I am equally before the people of
England for the protection of the people of England ; if you rise in
this tone, lean speak as loudly and as emphatically : there is nothing
which has betrayed improper passion on my part ; but no tone or*
manner shall put me down."
In the course of the trial the rivals were reconciled, and tried
which could flatter best.
Law : " I know what I have to fear upon this occasion. I know
the energy and the eloquence of my learned friend. I have long
felt and admired the powerful effect of his various talents. I know
the ingenious sophistry by which he can mislead, and the fascination
of that look by which he can subdue the minds of those whom he
addresses. I know what he can do to-day by remembering what he
has done upon many other occasions before."
Erskine : "Since I entered the profession I have met with no
antagonist more formidable than my learned friend to whom I am
now opposed. While admiring his candour and courtesy I have
had reason to know the sharpness of his weapons and the dexterity
of his stroke.
' Stetinms tela aspera contra
Contulimusque maims ; experto credite quantus
In clypeum assurgat, quo turbine torqueat hastam.' " *
An acquittal took place, the guns which were to assist the
French being proved to have been brought to fire &feu-de-joie
on the King's recovery. The informer, being convicted of
perjury, was sentenced at the. same assizes to stand in the
pillory, and to be imprisoned two years in Lancaster Castle, t
Law was more successful in prosecuting Mr. Redhead Yorke Prosecution
for sedition, but this prosecution reflects much discredit upon
the times in which it took place. The defendant, at a public
* This quotation was afterwards applied by Mr. Canning to Lord Brougham,
t 23 St. Tr. 1055. LIVES OF CHANCELLORS, vi. 465.
136 KEIGN OF GEOKGE III.
C HAP. meeting, had made a speech which he printed and circulated as
v v ' a pamphlet in favour of a reform in Parliament — animadverting
A.D. 1795. wjt|1 severity upon some of the proceedings of the House of
Commons, and accusing that assembly of corruption. He was
therefore indicted for a conspiracy " to traduce and vilify the
Commons' House of Parliament, to excite disaffection towards
the King and his government, and to stir up riots, tumults,
and commotions in the realm." Mr. Law, in opening the case
to the jury, laid down that " whatever speech or writing had a
tendency to lessen the respect of the people for the House of
Commons was unlawful/' He said, " In no country can a
government subsist which is held in contempt. Does not every
government under the sun take means, and must it not take
means, against such degrading insults ? Why in God's name
is the united dignity of the empire to be insulted in this way ?
What is the practical consequence of ridicule thrown on such
a body ? From the moment that men cease to respect, they
cease to obey, and riot and tumult may be expected in every
part of the kingdom."
The defendant delivered a very able and temperate address
to the jury ; but he was repeatedly interrupted by the Judge
when making observations which we should think quite unex-
ceptionable. A specimen may be both amusing and instruc-
tive : —
Defendant. — " You will recollect that the House of Commons in
one day, in the midst of a paroxysm of delusion, threw the liberties
of the people at the foot of the throne — I mean by the suspension of
the Habeas Corpus Act. You will recollect that in consequence of
that suspension, every man was unsafe in his person — every man even
had reason to tremble for his life."
Rooke, J. — " I must check you, Mr. Yorke, when you talk of the
House of Commons throwing the liberties of the people at the foot of
the throne."
Defendant. — " If your Lordship had permitted me, I should have
explained that idea."
JiooJte, J. — " I sit here upon my oath, and I cannot suffer any
sentiment to pass that is at all disgraceful to that House."
Defendant. — " It was far from my intention. I was only stating
LIFE OP LOED ELLENBOKOUGH. 137
that the Habeas Corpus Act was suspended, and was about to state CHAP,
the reason why. I consider the Habeas Corpus Act and the Trial by *
Jury as the firmest bulwarks of our liberties ; — certain it is that the A.D. 1795.
legislature thought the country in danger — that it was necessary to
strengthen the arm of government, and in some degree to weaken
the liberties of the people. May not I, with your Lordship's per-
mission, state what my perception is of the constitution, in order that
I may point out where the necessity for reform lies ? "
Rooke, J. — " Annual parliaments and universal suffrage is the gene-
ral principle upon which the witnesses say you have gone. Now,
annual parliaments and universal suffrage are contrary to the esta-
blished constitution of the country."
Defendant. — " Sir Henry Spelman, treating of the Anglo-Saxon
government, says that the Michel-Gemote met in annuo parliamento.
Here is the Parliamentary Roll of 5 Ed. II."
Rooke, J. — " The Crown called a parliament annually without an
annual election. Septennial parliaments are the law of the land, and
I cannot hear you go on in that way."
Defendant. — " Septennial parliaments are unquestionably an actual
law of the land ; but what I mean to state is, whether, according to
the principles of the Revolution, they ought to be so. May I not
state it as my opinion ? "
Rooke, /.— " No."
Defendant. — " Mr. Pitt himself and most of the great men have
held the same language."
Rooke, J. — " Not in a court of justice. I am bound by my oath
to abide by the law, and I cannot suffer anybody to derogate from
it." *
After a most intolerant reply from Mr. Law and a summing
up, in which the Judge re-stated his doctrines with respect to
finding fault with the existing constitution of the House of Com-
mons, the defendant was found guilty and sentenced to two years'
imprisonment in Dorchester gaol. What must have been the
state of public feeling when such proceedings could take place
without any censure in parliament, and with very little scandal
out of it ? The reign of terror having ceased, and Englishmen
being again reconciled to liberty, Mr. Redhead Yorke was
* Kooke was a very meek man ; and at that time, I dare say, most of the
other Judges would have held similar language.
138
KEIGN OF GEORGE III.
CHAP.
XLVIL
A.D. 1799.
Law's
triumph
over
Sheridan.
much honoured for his exertions in the cause of parliamentary
reform, and he was called to the bar by the Benchers of the
Middle Temple *
Law gained very great credit with all sensible men from his
conflict with Lord Kenyon about forestalling and rey rating. He
had studied successfully the principles of political economy, and
he admirably exposed the absurd doctrine that the magistrate
can beneficially interfere in the commerce of provisions ; but he
had the mortification to see his client sentenced to fine and im-
prisonment for the imaginary crime of buying with a view to
raise the price of the commodity.*)*
I now come to what is considered the most brilliant passage of
the life of the future Lord Ellenborough — his triumph over
Sheridan at the trial of Lord Thanet and Mr. Fergusson for
assisting in the attempt to rescue Arthur O'Connor. This trial
excited intense interest. The Government was most eager for a
conviction, while the honour of the Whig party was supposed to
require an acquittal. Several police-officers, examined for the
Crown, swore that both defendants had taken an active part
in favouring O'Connor's escape in the court at Maids tone ; but
they were flatly contradicted by several respectable witnesses,
who were corroborated by Mr. Whitbread ; and if the defen-
dants' case had been closed there, in all probability they would
have got off with flying colours. To make security double sure,
Mr. Sheridan was called, and being examined by Erskine, he
gave his evidence in chief in a very collected and clear manner ;
but being cross-examined by Law, who had fostered a spite
against him ever since their quarrel during Hastings's trial, he
lost his head entirely and brought about a verdict of GUILTY.
To convey a proper notion of this encounter, the cross-examina-
tion must be given at length : —
L. — " I will ask you whether you do or do not believe that Lord
Thanet and Mr. Fergusson meant to favour O'Connor's escape?"
* 25 St. Tr., 1003—1154.
t R. v. Waddington, 1 East, 166.
LIFE OF LOKD ELLENBOROUGH. 139
S. — " Am I to give an answer to a question which amounts only CHAP.
VT VTT
to opinion?" . ALVII.
L. — " I ask as an inference from their conduct, as it fell under A.D. 1799.
your observation, whether you think Lord Thanet or Mr. Fergusson
meant to favour Mr. O'Connor's escape — upon your solemn oath? "
S. — " Upon my solemn oath, I saw them do nothing that could be
at all auxiliary to an escape ? "
L. — " That is not an answer to my question."
S. — " I do not wish to be understood to blink any question, and if
I had been standing there and been asked whether I should have
pushed or stood aside, I should have had no objection to answer that
question."
L. — " My question is, whether, from what you saw of the conduct
of Lord Thanet and Mr. Fergusson, they did not mean to favour the
escape of O'Connor, upon your solemn oath ?"
S. — " The learned counsel need not remind me that I am upon my
oath ; I know as well as the learned counsel does that I am upon my
oath ; and I will say that I saw nothing auxiliary to that escape."
L. — " After what has passed, I am warranted in reminding the
honourable gentleman that he is upon his oath. My question is,
whether, from the conduct of Lord Thanet and Mr. Fergusson, or
either of them, as it fell under your observation, you believe that
either of them meant to favour O'Connor's escape ? "
S. — " I desire to know how far I am obliged to answer that ques-
tion. I certainly will answer it in this way, that from what they
did, being a mere observer of what passed, I should not think myself
justified in saying that either of them did. Am I to say whether I
think they would have been glad if he had escaped ? That is what
you are pressing me for."
L. — " No man can misunderstand me ; I ask whether, from the
conduct of Lord Thanet and Mr. Fergusson, or either of them, as it
fell under your observation, you believe, upon your oath, that they
meant to favour the escape of O'Connor ? "
S. — " I repeat it again, that from what either of them did, I should
have had no right to conclude that they were persons assisting the
escape of O'Connor."
L. — (i I ask you again, upon your oath, whether you believe, from
the conduct of Lord Thanet or Mr. Fergusson, that they did not
mean to favour the escape of O'Connor?"
S, — " I have answered it already."
Lord Kenyw. — " If you do not answer it, to be sure we must draw
the natural inference."
140 EEIGN OF GEOKGE III.
C HAP. S. — " I have no doubt that they wished he might escape ; but from
« anything I saw them do, I have no right to conclude that they did."
A.D. 1799. L. — " I will have an answer : I ask you again, whether, from their
conduct as it fell under your observation, you do not believe they
meant to favour the escape of O'Connor?"
S. — " If the learned gentleman thinks he can entrap me, he will
find himself mistaken."
Erskine. — " It is hardly a legal question."
Lord Kenyan. — " I think it is not an illegal question." *
L. — " I will repeat the question, whether, from their conduct, as
it fell under your observation, you do not believe that they meant
to favour the escape of O'Connor?"
S. — u My belief is, that they wished him to escape ; but from any-
thing I saw of their conduct on that occasion, I am not justified in
saying so."
Erskine in vain tried to remedy the mischief by re-examina-
tion : —
" You were asked by Mr. Law whether you believed that the de-
fendants wished or meant to favour the escape of Mr. O'Connor ; I
ask you, after what you have sworn, whether you believe these gentlemen
did any act to rescue Mr. 0' Connor ? "
S.—- " Certainly not."
E. — " You have stated that you saw no one act done or committed
by either of the defendants indicative of an intention to aid O'Connor's
escape ? "
S.— « Certainly."
E. — " I ask you, then, whether you believe that they did take any
part in rescuing Mr. O'Connor? "
S.—" Certainly not."
However, the jury could never get over the WISH that O'Con-
nor should escape ; f so both defendants were convicted, and
* I think it is clearly an illegal question, and I am astonished that Erskine-
so quietly objected to it. I should at once overrule such a question ; for it
does not inquire into a fact, or any opinion upon matter of science, but asks
the witness, instead of the jury, the inference as to the guilt or innocence of
the accused to be drawn from the evidence.
t Sheridan used afterwards to pretend that he had the best of it, and that
lie put Law down effectually. Among other questions and answers not to be
found in the full and accurate report of the short-hand writer who was present,
he used to relate—" When Law said, ' Pray, Mr. Sheridan, do answer my ques-
tion, without point or epigram,' I retorted, ' You say true, Mr. Law ; your
questions are without point or epigram.' "
LIFE OF LOED ELLENBOROUGH. 141
although their right arms were not cut off — the specific punish- CHAP.
ment to which it was said they were liable — they were sentenced * ,» — '->
to heavy fines and long imprisonment. * A*D' 1799>
There had hitherto been a certain mistrust of Law, on account Law recon-
of his early Whiggery ; but he was now hailed as a sincere Tory, Tories.
and his promotion was certain.
For several more years, however, no vacancy occurred, and his
highest distinction was being leader of the Northern Circuit.
There, indeed, he reigned supreme, without any brother being
near the throne. He had completely supplanted Serjeant Cockell,
who, notwithstanding a most curious nescience of law, had for
some time been profanely called " the Almighty of the North."
Some juniors had taken the coif without emerging from obscurity,
and the only other silk gown on the circuit was worn by " Jemmy
Park," whom Law could twist round his finger at any time.
Scarlett, in stuff, began to show formidable powers; but as
yet was hardly ever trusted with a lead. Being so decidedly
the " Cock of the Circuit," it is not wonderful that Law should
crow very fiercely. According to all accounts, he did become
excessively arrogant, and he sometimes treated rudely both
his brother barristers and others with whom he came into
collision.
He was always ready, however, to give satisfaction for any His readi-
supposed affront which he offered. Once he happened, at York, fight.
to be counsel for the defendant in an action on a horse-race, the
conditions of which required that the riders should be " gentle-
men." The defence was that the plaintiff, who had won the race,
was not a " gentleman." A considerable body of evidence was
adduced on both sides, and Mr. Law commented upon it most
unmercifully. The jury found, for the defendant that the
plaintiff was " not a gentleman." The defeated party blustered
much, and threatened to call the audacious advocate to an
account. Law, putting off his journey to Durham for a day,
* 27 St. Tr. 821.
142 REIGN OF GEOEGE III.
XLvn walked about booted and spurred before the coffee-house, the
most public place in York, ready to accept an invitation into the
field or to repel force by force, because personal chastisement
had likewise been threatened. No message was sent, and no
attempt was made to provoke a breach of the peace.
LIFE OF LORD ELLENBOROUGH. 143
CHAPTER XLVIII.
CONTINUATION OF THE LIFE OF LORD ELLENBOROUGH TILL HE WAS
APPOINTED LORD CHIEF JUSTICE.
THE great Northern Leader had reached his fifty-first year, and CHAP.
still the political promotion which he so earnestly desired never < ( 'r
opened to him. Having till then, in his own language, " crawled **« is made
along the ground without being able to raise himself from it," in General.
the language of his friend Archdeacon Paley, " he suddenly rose
like an aeronaut." *
Mr. Pitt, in 1801, stepped down from the premiership, and, a
new arrangement of legal offices following, Mr. Addington, the
new minister, sent for Mr. Law, and offering him the Attorney- Feb. isoi.
Generalship, observed, " That as his ministry might be of short
duration, and the sacrifice to be made considerable, comprising
the lead of the Northern Circuit, to which there was no return,
he would not expect an immediate answer, but hoped that in two
days he might receive one?" "Sir," said Mr. Law, "when
such an offer is made to me, and communicated in such terms, I
should think myself disgraced if I took two days, two hours, or
two minutes, to deliberate upon it ; I am yours, and let the storm
blow from what quarter of the hemisphere it may, you shall
always find me at your side."
* Paley had been chaplain to Law's father, the bishop, who gave him his
first preferment, and there was the strictest intimacy between Law and Paley
through life. The former, when Chief Justice, has been heard to say, " Although
I owed much to Paley as an instructor (for he was practically my tutor at col-
lege), I was much more indebted to him for the independent tone of mind which
I acquired through his conversation and example : Paley formed my character ;
and I consider that I owe my success in life more to my character than to any
natural talents I may possess." Law corrected for Paley the proof-sheets of
some of his works as they were passing through the press ; and in Law's house
in Bloomsbury Square there was an apartment which went by the name of
" Paley's room," being reserved for the Archdeacon when he paid a visit to the
metropolis.
144 KEIGN OF GEORGE III.
C HAP. When he attended in the King's closet to kiss hands and to
' , — '-> be knighted, George III., who had been recently in a state of
A.D. i*,oi. Derangement and was as yet only partially recovered, after bidding
him " rise Sir Edward," said to him, " Sir Edward, Sir Edward,
have you ever been in parliament ? " and being answered in the
negative, added, " Right, Sir Edward ; quite right, Sir Edward ;
for now, when you become my Attorney-General, Sir Edward,
you will not eat your own words, Sir Edward, as so many of your
predecessors have been obliged to do, Sir Edward."
In those Ante-Reform-Act days the Government always —
easily, and as a matter of course — provided seats in the House
of Commons for the law-officers of the Crown, they paying only
500£. as a contribution to the Treasury-borough fund. A con-
siderable number of seats were under the absolute control of the
minister for the time being, and others, for a consideration in
money or money's worth, were placed by borough proprietors at
his disposal The difficulty of getting and keeping a seat in the
House of Commons, which now so much influences the appoint-
ment to offices, was then never thought of. In consequence, the
minister certainly had a more unlimited command of talent and
fitness for public service. No one would now think of going
back to the " nomination " system, its conveniences being greatly
outweighed by its evils ; but the experiment may hereafter be
made of allowing certain officers of the Crown, as such, to have
voice without vote in the House of Commons.
The new Attorney-General, having deposited his 500?. with
the Secretary to the Treasury, was returned for a close borough,
and on the 2nd of March, 1801, he was sworn in at the table.
He seems to have imbibed the doctrine for which I have heard
the great Lord Lyndhurst strenuously contend, that no allusion
ought to be made in parliament to any political opinions enter-
tained or expressed by any individual before going into parlia-
ment. Having openly and zealously belonged to the Whigs
till 1792, — after changing sides, Law was eager to embrace
every opportunity of attacking or sneering at that party in their
subsequent prostrate condition.
LIFE OF LORD ELLENBOROUGH. 145
He entered St. Stephen's Chapel too late in life to be
a skilful debater ; but as often as he spoke he commanded
attention by the energy of his manner and the rotundity A'D' **
of his phrases (reminding the old members of Thurlow), and
he gave entire satisfaction to his employers. His maiden March 18.
speech was made in support of the bill for continuing mar-
tial law in Ireland, which gave courts martial jurisdiction
over all offences, with a power of life and death. He con-
tended that " this measure had led to the extinction of rebel-
lion in that country, and that to its operation the House owed
their power of debating at that moment, for without it the whole
empire would have been involved in one common ruin. The
aspect of the late rebellion he conceived to be unequalled in the
history of any country ; never before had rebellion so aimed at
the destruction of all that is venerable in political institutions or
sweet in domestic life — of all the social affections which unite
man to man — of all the sacred sanctions which bind man to his
Maker." * Coercive measures for Ireland are always well relished
in the House of Commons, and, on a division, eight only mus-
tered in the minority.
Mr. Attorney next argued the necessity for suspending the
Habeas Corpus Act in England, asserting that the constitution
of the country would not be safe if the bill which was now
moved for were not passed. He said " he would maintain that
it was a most lenient measure, and particularly to those against
whom it was intended. To prevent an outbreak of treason, was
mercy to the traitors. Because crimes were not judicially proved,
their existence must not be denied. Had it not been for subse-
quent events, the acquitted and sainted Arthur O'Connor, long
the idol of the other side of the House, now confessing his guilt
— who had been so lauded as to cause universal nausea — would
have gone to his grave loaded with the unmixed praises of his
compurgators." f The minority now amounted to forty-two.
When the Rev. John Home Tooke was nominated as member Rev. John
for the borough of Camelford, the question arose whether a priest Tooke, M.P.
* 35 Parl. Hist. 1044. t Ib- 1288.
VOL. III. L
146 REIGN OF GEORGE III.
XLVin *n or(^ers was qualified to sit in the House of Commons ? Mr.
* » ' Attorney learnedly argued for the negative, and zealously sup-
A.D. 1802. p0r|.e(j the fan t0 prevent such an occurrence in future. Mr.
Home Tooke had his revenge, and excited a laugh at the dog-
matizing method of his opponent, which he pronounced to be
" only fit for the pulpit, so that an exchange might advantage-
ously be made between the Law and the Church." '
Sir Edward's last speech in the House of Commons was on
the claim made by the Prince of Wales against the King for an
account of all the revenues of the Duchy of Cornwall during his
Royal Highness's minority. The ground taken by him was, that
the King had a set off for his Royal Highness's board and edu-
cation, which overtopped the demand. " Can it be contended,"
said he, " that the Prince of Wales, after having been maintained
one-and-twenty years in all the splendour becoming his elevated
rank, may at last call the King to an account for all the money
received for that purpose during his minority ? The Duchy of
Cornwall was granted by Edward III. to his son, that he himself
might be relieved from the burthen which had previously been
thrown upon him and other Kings of maintaining their heirs at
their own expense. It has been clearly shown that the money
advanced to this Prince of Wales during his minority exceeds
all his revenues, and that the balance is against him. The ele-
gant accomplishments and splendid endowments of this ' Hope
of England ' prove that he has experienced the highest degree of
parental care, tenderness, and liberality." f This controversy,
though often renewed, was never brought to a final decision ;
but the arguments seem conclusively to prove that the revenues
of the Duchy of Cornwall belong to the Prince of Wales during
his minority, and that he is entitled to an account of them on his
coming of age.
The negotiations for a peace with Napoleon as First Consul
of the French Republic were now going on, and parliamentary
strife was allayed till the result should be known, all parties
agreeing that in the mean time no attempt should be made
* 35 Parl, Deb. 1335, 1398. f 36 Porl. Hist. 433.
LIFE OF LOKD ELLENBOKOUGH. 147
to subvert the government of Mr. Addington. Before this
event Sir Edward Law was transferred to another sphere of
action. A'D-1802-
During the short period of his Attorney-Generalship no Governor
« ,... ! „, •. . . i . Wall'sCase.
prosecution tor treason or any political oiience arose, but in his
official character he did conduct one of the most memorable
prosecutions for murder recorded in our juridical annals. It
brought great popularity to him and the Government of which
he was the organ, upon the supposition that it presented a
striking display of the stern impartiality of British jurisprud-
ence ; but after a calm review of the evidence I fear it will
rather be considered by posterity as an instance of the triumph
of vulgar prejudice over humanity and justice. The alleged
crime had been committed twenty years before the trial, and,
except in the case of Eugene Aram, there never had been
known such an illustration of the doctrine of our law, that in
criminal matters no lapse of time furnishes any defence, while
all civil actions are barred by short periods of prescription ; upon
the supposition that the evidence may have perished which
might have proved the charge to be unfounded. JOSEPH
WALL, who had served from early youth as an officer in the
army, and had always been distinguished for gallantry and
good conduct, was, during the American War, appointed Go-
vernor of Goree, on the coast of Africa, With a very in-
sufficient garrison, and with very slender military supplies, he
had to defend this island from the French, who planned expedi-
tions against it from their neighbouring settlement of Senegal.
Governor Wall performed his duty to his country, in the midst
of formidable difficulties, with firmness and discretion — and the
place intrusted to him was safely preserved from all perils till
peace was re-established. He was then about to return home,
in the expectation of thanks and promotion, but great discon-
tents existed among the troops forming the garrison, by reason
of their pay being in arrear. This grievance they imputed to
the Governor, and they resolved that he should not leave the
island till they were righted. Benjamin Armstrong, a sergeant,
L2
148 REIGN OF GEORGE III.
C HAP. their ringleader, was brought by him irregularly before a regi-
.A. I -< V -LJ.-L*
* * ' mental court martial, and sentenced to receive 800 lashes.
A.D. 1802. ^though this whipping was administered with much severity,
he in all probability would have recovered from it if he had not
immediately after drunk a large quantity of ardent spirits :
but his intemperance, together with the wounds inflicted upon
him by the flagellation, and an unhealthy climate, brought on
inflammation and fever, of which he died. Order was re-
stored, and the Governor returned to England. However,
representations were made to the authorities at home respecting
the irregularity and alleged cruelty which had been practised,
and exaggerated accounts of the proceeding were published
in the newspapers, stating among other things that the Go-
vernor had murdered Armstrong and several other soldiers by
firing them from the mouths of cannon. A warrant was
issued against him by the Secretary of State, he was arrested
by a King's messenger, and he made his escape as they were
conveying him from Bath in a chaise and four. He imme-
diately went abroad, and he continued to reside on the con-
tinent till the peace of Amiens — when, on the advice of counsel,
he came to England, wrote a letter to the Secretary of State
announcing his return, and surrendered himself to take his
trial.
I am old enough to remember the unexampled excitement
which the case produced. The newspapers were again filled
with the atrocities of Governor Wall, and a universal cry for
vengeance upon him was raised. Among the higher and edu-
cated classes a few individuals, who took the trouble to inquire
into the facts, doubted whether he was liable to serious blame,
notwithstanding the circumstance against him that he had
fled from justice ; but the mass of the population, and particu-
larly the lower orders, loudly pronounced Governor Wall guilty
before his trial, and clamoured for his speedy execution.
The trial (if trial it may be called) did come on at the Old
Bailey on the 20th of January, 1802, under a special commis-
sion, issued by the authority of 33 Hen. VIII., c. 23. The
LIFE OF LOUD ELLENBOKOUGH. 149
Attorney-General, who appeared as public prosecutor, was CHAP.
conscientiously convinced of the prisoner's guilt, and, free ' , '
from every bad motive, was only desirous to do his duty. He A<D< 1J
propounded the law of murder very correctly to the Jury, and
I cannot say that he suppressed any evidence, or put any
improper question to any witness, but he showed a determined
resolution to convict the prisoner. I should not like to be
answerable for such a conviction.
Then a very young man, just entered at Lincoln's Inn, I was
present at the trial, and, carried away by the prevalent venge-
ful enthusiasm, I thought that all was right ; but after the lapse
of half a century, having dispassionately examined the whole
proceeding, I come to a very different conclusion.
I have now a lively recollection of the effect produced by the
opening speech of the Attorney- General, to which, as the law
then stood, no answer by counsel was permitted. With pro-
fessions of candour he narrated the facts in a tone of awful
solemnity so as to rouse the indignation of the jury. He par-
ticularly dwelt upon the fact, that the men employed to inflict
the punishment were not the drummers of the regiment, but
African negroes, and he pronounced the punishment wholly
illegal, as the sentence could only have been passed by a
general court-martial assembled according to the " Articles of
War." He allowed, indeed, that if there was a dangerous
mutiny all forms might be dispensed with, but insisted that the
onus lay on the prisoner to make this clearly out, — and, by anti-
cipation, he sought to discredit the witnesses to be called for the
defence. He dwelt with much force upon the circumstance
that a despatch written by the prisoner, soon after his return to
England, to Lord Sidney, the Secretary of State, was silent as
to the supposed mutiny ; he palliated the resolution of the
soldiers not to permit the Governor to leave the island till
their arrears were paid, by observing that, " after his departure,
a vast ocean would separate them from their debtor, and con-
sidering the precariousness of human life, and particularly in
that unhealthy settlement, if they did not press their demand
150 ItEIGN OF GEOEGE III.
XTAnrr a^ t^ia^; P6™0^ ^ was Possi^e they might not be in a situation
v » ' afterwards to urge it with any beneficial effect to themselves."
A.D. 1802. These were the conditions on which it was said by the At-
torney-General the prisoner was entitled to an acquittal : "It
will be incumbent on him to show the existence of crime in
the alleged mutineer, the impossibility of regular trial, and the
reasonable fitness of the means substituted and resorted to in
the place of trial. All these things it will be incumbent on the
prisoner to prove. It may likewise be proper for him, in further
exculpation of his conduct, to show how he withdrew himself
from justice at the time when he was first apprehended ; for it
should seem that if he was an innocent man, this was above all
others the convenient time to prove his innocence. It will
give me great satisfaction if he is able to establish that there
existed such circumstances as will make the crime with which
he is charged not entitled to be denominated and considered as
murder."
The witnesses for the prosecution represented that when
Armstrong and his associates came up, demanding their arrears,
they were unarmed, and that they returned to their quarters
when ordered to do so by the Governor, so that no extraordinary
measures of severity were necessary — but they admitted that
the sentence had been pronounced by a drumhead court
martial, which the Governor summoned, and they admitted that
although where a mutiny is made the subject of inquiry by a
general court martial, it is officially returned — if a mutiny is
repressed at the instant, and a drumhead court martial is held,
it is not returned if the punishment be short of death. No
attempt was made to show that the prisoner had any spite
against Armstrong, or that he was actuated by any improper
motive.
When called upon for his defence Governor Wall confined
himself to a simple narrative, which, if true, showed that Arm-
strong had been guilty of most culpable conduct, and that after
he had led back the men to their quarters he still entertained
very dangerous designs.
LIFE OF LOKD ELLENBOEOUGfi. 151
Mrs. Lacy, the widow of the succeeding Governor who had
been second in command when the affair happened, stated on
her oath that Armstrong and the seventy soldiers he led on A>D' 1€
threatened Governor Wall, and swore that if he did not satisfy
their demands they would break open the stores and satisfy
themselves. She was strongly corroborated by eye-witnesses
respecting the dangerous character of the mutiny, and by the
opinion of the other officers in the garrison, that extraordinary
measures must immediately be taken to repress it. Several
general officers who had known the prisoner all his life, and
other respectable witnesses, gave him a high character for good
temper and humanity. But one of them being cross-examined
on the subject by the Attorney-General, said that "he had not
heard this character of him on the island of Goree," and a
witness called in reply to say that a witness examined for the
prisoner ought not to be believed on his oath, said that the
prisoner's witness was " reckoned a lying, shuffling fellow."
The Jury, after half an hour's deliberation, returned a verdict
of Guilty, which was received with loud acclamation, and, ac-
cording to the law as it then stood, the sentence of death, which
was immediately passed, was ordered to be carried into execu-
tion on the second day after the trial.
Notwithstanding the general satisfaction testified, many were
shocked by this proceeding, and petitions for mercy were pre-
sented to the King. The case being examined by Lord Eldon,
and other members of the Government, there was a sincere
desire among them to save the unfortunate gentleman, and a
respite for two days was sent to give time for further de-
liberation— but there arose such a burst of public resentment
as was never known on such an occasion in this country. Still
a further respite was granted for three days more, in the hope
that reason and humanity might return to the multitude. On
the contrary, an open insurrection was threatened, and it was
said that the common soldiers and non-commissioned officers
of the three regiments of Guards, who would have been called
in to quell it, had declared that they would join the rioters, and
152
KEIGN OF GEORGE III.
CHAP.
XL VIII.
A.D. 1802.
Illness of
Lord
Kenyon.
w*tn tneir own hands in executing the sentence of the
law on the murderer of Sergeant Armstrong. The Government
had not the courage to grant a farther respite, and Governor
Wall was hanged on a gibbet in front of the gaol of Newgate,
amidst the shouts and execrations of the most numerous mob
ever assembled in England to witness a public execution.*
Sir Edward Law was now a good deal disturbed by the near
prospect of a vacancy in the office of Chief Justice of the King's
Bench. Lord Kenyon, having made a vain effort to discharge
his judicial duties in the beginning of Hilary Term, had been
ordered by his physician to Bath, and from the accounts of his
declining health, it was well understood that he could never
sit again. The peace with France being approved of in both
Houses, the Catholic question having gone to sleep, the King's
health being restored, and Mr. Addington's Government being
stronger than any one ever expected to see it, Sir Edward Law
would not have been sorry to have continued in the office of
Attorney-General, but he could not bear the idea of any one
being put over his head, and rumours reached him that as he
could not be considered to have won a right to the office of
Chief Justice, from having served only a few months as a law
officer of the Crown, it was to be conferred on Erskine, who,
since the peace, had been coquetting with the new Prime
Minister. I happened to be sitting in the students' box in
the Court of King's Bench, on the 5th of April, 1802, when a
note announcing Lord Kenyon's death was put into the At-
torney-General's hand. I am convinced that at this time he
had received no intimation respecting the manner in which the
vacancy was to be filled up, for he looked troubled and em-
barrassed, and immediately withdrew.
He did not again appear in Court till the 12th of April,
* 28 St. Tr. 51-178. A writer, who highly approves of the execution of
Governor "Wall, says, " His inhuman cruelties had so hardened the multitude,
that they hailed with exulting shouts his appearance on the scaffold, and
triumphed in the knowledge that neither station, nor lapse of time, nor dis-
tance, would shield a convicted murderer from his just doom."- — Townsend's
Judges, vol. i. 328.
LIFE OF LORD ELLENBOROUGH. 153
vrhen he was sworn in and took his seat as Chief Justice.* CHAP.
-X..Lj V J-J-.L.
Mr. Addington had the highest opinion of him, and never had ' - » - '
hesitated ahout recommending him for promotion. On going A'D- 1802<
Tow jg
home from Court, after hearing of Lord Kenyon's death, Mr. made chief
Attorney found a letter from the Prime Minister, announcing
that the King would he advised to appoint him, and expressing and a Peer.
a confident belief that " when the royal pleasure was taken his
Majesty would willingly sanction an appointment likely to be
so conducive to the upright and enlightened administration of
justice to his subjects." Immediately after Lord Kenyon's
funeral, the King's pleasure was formally taken, with the anti-
cipated result, and his Majesty cordially agreed to the proposal
that the new Chief Justice should be raised to the peerage.
It was first necessary that he should submit to the degree
of the coif, only serjeants-at-law being qualified to preside in
the King's Bench, or to be Judges of Assize. In compliment
to the peace concluded by his patron with the First Consul of
the French Republic, he took for the motto of his rings,
" Positis mitescunt secula bellis."
For his barony he chose from a small fishing village on the
coast of Cumberland a sounding title, to which there could be
no objection, except that having very often officially to sign it,
he was forced afterwards to write many millions of large
characters, beyond what would have been necessary if he had
been contented with a word of two syllables, without any un-
phonetic consonants.!
* 2 East, 253.
t At Ellenborough there is a small estate which had been in his mother's
family since the reign of Henry II., and it was supposed that he was partly
Induced to take this title as a mark of respect to her memory.
154
EEIGN OF GEOKGE III.
CHAPTER XLIX.
A.D. 1802.
His quail-
fications as
a Judge.
CONTINUATION OF THE LIFE OF LORD ELLENBOROUGH TILL HE BECAME A
CABINET MINISTER.
C HAP. LORD ELLTENBOROUGH'S appointment was generally approved of,
and he had the felicity of being promoted without the hostility
Q£ an eg-ete predecessor, or the grudge of a disappointed rival,
or the envy of contemporaries whom he had surpassed.
His professional qualifications were superior to those of any
IT**
other man at the bar. Having an excellent head for law, by
his practice under the bar he was familiarly versed in all the
intricacies of special pleading : although not equally well ac-
quainted with conveyancing, he had mastered its elements, and
he could pro re natd adequately understand and safely expa-
tiate upon any point of the law of real property which might
arise. He was particularly famous for mercantile law ; and a
thorough knowledge of the rules of evidence, and of the prin-
ciples on which they rested, made his work easy to him at nisi
prius. Not only had he the incorruptibility now common to all
English Judges, but he was inspired by a strong passion for
justice, and he could undergo any degree of labour in perform-
ing what he considered his duty. He possessed a strong voice,
an energetic manner, and all physical requisites for fixing atten-
tion and making an impression upon the minds of others. I
must likewise state as a great merit that he could cope with
and gain an ascendency over all the counsel who addressed him,
and that he never had a favourite — dealing out with much im-
partiality his rebuffs and his sarcasms. The defects in his
judicial aptitude were a bad temper, an arrogance of nature, too
great a desire to gain reputation by despatch, and an excessive
leaning to severity of punishment.
LIFE OF LORD ELLENBOKOUGH. 155
He did not by any means disappoint the favourable anticipa-
tions of his friends, although the blemishes were discoverable which
those dreaded who had more closely examined his character. The
day when he took his seat in court as Chief Justice, he said pri-
vately to an old friend that " his feelings as a barrister had been
so often outraged by the insults of Lord Kenyon, he should now
take care that no gentleman at the bar should have occasion to
complain of any indignity in his court, and that he hoped any
one who thought himself ill-used would resent it." Yet before
the first term was over, he unjustifiably put down a hesitating
junior, and ever after he was deeply offended by any show of
resistance to his authority. By good fortune he had very able His puisnes.
puisnes, so that the decisions of the Court of King's Bench while
he was Chief Justice are entitled to the highest respect. Grose was
his coadjutor of least reputation ; but this supposed weak brother,
although much ridiculed,* when he differed from his brethren, was
voted by the profession to be in the right. All the others —
Lawrence, Le Blanc, Bayley, Dampier, Abbott, Holroyd — were
among the best lawyers that have appeared in Westminster Hall
in my time. It was a great happiness to practise before them,
and I entertain a most affectionate respect for their memory.
Lord Ellenborough did not attempt to introduce any reform in His conduct
n , . ., f. -, v as Chief
the practice of his court, or in the preparation or the preliminary justice.
pleadings. The writ of Latitat was still as much venerated as
the writ of Habeas Corpus, and all the arbitrary and fantastic
rules respecting declarations, pleas, replications, rejoinders, sur-
rejoinders, rebutters and surrebutters, which had arisen from
accident or had been devised to multiply fees, or had been properly
framed for a very different state of society, were still considered to
be the result of unerring wisdom, and eternally essential to the due
administration of justice. Antiquity was constantly vouched as
an unanswerable defence for doctrines and procedure which our
* " Qualis sit Grocius Judex uno accipe versu ;
Exclamat, dubitat, balbutit, stridet et errat."
" Grocius with bis lantern jaws
Throws light upon the English laws."
156 REIGN OF GEOEGE III.
ancestors, could they have been summoned from their graves,
would have condemned or ridiculed. One obstacle to legal im-
provement, now removed, then operated most powerfully, though
insensibly — that antiquated juridical practice could not be touched
without diminishing the profits of offices which were held in trust
for the Judges, or which they were permitted to sell.* The
grand foundation of legal improvement was the bill for putting
all the subordinate officers in the courts at Westminster, as well
as the Judges, on a fixed salary — allowing fees of reasonable
amount to be paid into the public treasury towards the just
expenses of our judicial establishment. The Benthamites would
go still further and abolish court fees altogether ; but there seems
no hardship in the general rule that the expense of litigation
shall be thrown upon the parties whose improper conduct must
be supposed to have occasioned it Arbitrators are paid by the
party found to be in the wrong, and the burthen of maintaining
the Judges appointed by the State ought not to be borne by those
who habitually obey the law, and spontaneously render to every
man his own.
Upon the accession of Lord Ellenborough, the absurd doctrines
about forestalling and regrating were understood, like prosecu-
tions for witchcraft, to be gone for ever on account of the manly
stand he had made against them under Lord Kenyon, and there
has not since been any attempt to revive them. The internal
free trade in corn was thus practically secured, although the
doctrine that free importation of corn ought to be allowed from
foreign countries did not follow for near half a century, and Lord
Ellenborough himself would probably have regarded with as much
horror such an importation, as did his predecessor a corn-merchant
buying wheat at Uxbridge to be resold in Mark Lane.
* I never saw this feeling at all manifest itself in Lord Ellenborough except
once, when a question arose whether money paid into Court was liable to
poundage. I was counsel in the cause, and threw him into a furious passion
by strenuously resisting the demand. The poundage was to go into his own
pocket — being payable to the chief clerk— an office held in trust for him. If
he was in any degree influenced by this consideration, I make no doubt that
he was wholly unconscious of it
LIFE OP LOKD ELLENBOKOUGH. 157
I do not think that on any other subject the principles were CHAP;
^vXjJL^v.
altered by which the Court of King's Bench now professed to be v » '
guided. Lord Ellenborough adhered to the rule that in eject-
ment the legal estate shall always prevail, and that an outstanding
term might be set up unless it might be fairly presumed to be
extinguished or surrendered, or the defendant was estopped from
contesting the title of the claimant. A more liberal and scientific
mode, however, was restored of treating commercial questions,
the civil law and foreign jurists were quoted with effect, and the
authority of Lord Mansfield was again in the ascendant.
Chief Justice Ellenborough's judgments connected with politics
and history I propose hereafter to introduce chronologically
as I trace his career after he mounted the bench. At present
I think it may be convenient to mention some of the more im-
portant questions before him, which derive no illustration or
interest from the time when they arose, or from any concomitant
events.
In now looking over the bulky volumes of "East" and of Lord Elien-
" Maule and Selwyn," it is wonderful to observe how many of decisions.
the decisions which they record may already be considered obso-
lete. A vast majority of them are upon rules of practice and
pleading, since remodelled under the authority of the legislature
—upon Sessions' law respecting settlements, rating, and bastardy,
which has been entirely altered by successive statutes — upon the
old Quo warranto law, swept away by the Parliamentary Reform
Act and the Municipal Corporations' Amendment Act — upon the
law of tithes, abolished by the Tithe Commutation Act — and
upon concerted commissions of bankruptcy and the validity of
petitioning creditors' debts, which have become immaterial by
the new Bankrupt and Insolvent Codes.
I proceed to select a few cases, decided by Lord Ellen-
borough, which depend upon the common law and the eternal
principles of right and wrong, and which must ever be inter-
esting and instructive to those who wish to have a liberal know-
ledge of our jurisprudence.
158 REIGN OF GEOEGE III.
C HAP. jn Rodney v. Chambers * the important question arose upon
' - « - ' the legality of a covenant by a husband, who had been separated
deeds o? ° from his wife and had been reconciled to her, to pay a certain
separation. gum of money annually to trustees for her support in case of a
future separation. His counsel contended that such a covenant
was contrary to public policy, as tending to encourage the wife
to leave her husband, and to disturb the harmony of conjugal
life.
Lord Ellenborough. — " I should have thought that it would have
fallen in better with the general policy of the law to have prohibited
all contracts which tend to facilitate the separation of husband and
wife ; but we cannot reject the present on that ground without saying
that all contracts which have the same tendency are vicious — which
would extend, for aught I can see, to provisions for pin-money or
any other separate provision for the wife, which tends to render her
independent of the support and protection of her husband. Deeds of
separation are not illegal, and I cannot see how it is more illegal to
provide for future than for present separation." [Judgment against
the husband.^
Action for Whether in consequence of this deed, or from some other
notwith- *' cause, the wife soon after separated from her husband and had
deed ofg an affair of gallantry with a military officer. An action for crim.
separation. con ^g^g brought, the defence was set up that the plaintiff had
voluntarily renounced the society of his wife, and therefore that
this action could not be maintained, the gravamen of which is the
per quod consortium amisit ; but Lord Ellenborough held that
although the husband had made a provision for his wife's sepa-
rate maintenance, he could not be said to have given up all
claim to her society and assistance, and that he sustained an
injury from the adultery which brought disgrace upon his name,
and might introduce a spurious progeny into his family. f
No implied In Parkinson v. Lee,J in contradiction to the loose maxim that
from high °n the sale of goods a sound price implied a warranty of sound-
goods^ ness> ^ord Ellenborough, with the rest of the Court, decided that
upon a sale of hops, however high the price might be, there was
* 2 East, 283. f Chambers v. Caulfield, 6 East, 244. J 2 East, 314.
LIFE OF LORD ELLENBOEOUGH. 159
no implied warranty that the commodity should be merchantable, 0 HAP.
and that in the absence of fraud the governing maxim is caveat * ^—>
emptor.
Mr. Justice Johnson, an Irish Judge, having been indicted in Liability
the Court of King's Bench at Westminster for publishing in the tknof a°a
county of Middlesex a libel on Earl Talbot, the Lord Lieutenant ^i by
of Ireland, and having pleaded in abatement that as he had been order of
persons
born and had constantly resided in Ireland, he was only liable living out
to be tried in the courts of that country, Lord Ellenborough,
in a very elaborate judgment, overruled the plea, thus con-
cluding : —
" If the circumstances of the defendant's birth in Ireland and
his residence there at the time of the publication here, have the
effect of rendering him not punishable in any court in this country
for such publication, this impunity must follow as a consequence
from its being no crime in the defendant to publish a libel in
Middlesex. Indeed, the argument rests wholly upon this position,
that the defendant owed no obedience to the laws of this part of the
United Kingdom, so that he has not been guilty of any crime in
breaking them. The learned Judge lays down for law that if he
remains at Dublin, he may by means of a hired assassin commit a
murder in London without being liable to punishment."
The indictment being tried at bar, the libellous letters pub-
lished in ' Cobbett's Political Register ' were proved to be in the
handwriting of the defendant, with the Dublin post-mark upon
them. They were addressed to the editor of the ' Register ' in
Middlesex, and they contained a request that he would print and
publish them. The defendant's counsel insisted that he was
entitled to an acquittal on the ground that the evidence was
defective.
Lord Ellenborough. — " There is no question of the fact of publica-
tion by Mr. Cobbett, in Middlesex, of that which is admitted to be a
libel ; and the only question is, whether the defendant was accessory
to that publication ? If he were, the offence is established ; for one
who procures another to publish a libel, is no doubt guilty of the
publication, in whatever county it is in fact published, in consequence
of his procurement."
160 KEIGN OF GEOKGE III.
°^ner Judges concurred, and the defendant was found
GUILTY.*
English un- The Government of the United States of America having in
derwriters
not liable the year 1 808 laid an embargo in American ports on all American
put on by ships bound for Great Britain, the owners, who were insured in
oTthe England, gave notice of abandonment to the underwriters, and
ment
assured. claimed a total loss. Lord Ellenborough acquired great glory
by boldly deciding that, under these circumstances, the English
underwriters were not liable. He proceeded on this maxim, that
a party insured can never recover for a loss which he himself has
occasioned, and he laid down that under every form of govern-
ment each subject or citizen must be considered as concurring
in every act of the supreme power of the country in which he
lives: —
" The foundation of the abandonment is an act of the American
Government. Every American citizen is a party to that act ; it has
virtually the consent and concurrence of all, and, amongst the rest,
the consent and concurrence of the assured. The assured having
prevented the vessels from sailing, can they make the detention of
the vessels the foundation of an action ? " f
Validity of Where a marriage had been regularly celebrated by a priest in
ffleritimate orders, in the face of the church, between a man of full age and
minor. a woman under age, who was illegitimate, with the consent of
her mother, the father being dead, and they had lived together
as man and wife for many years, Lord Ellenborough decided (I
think erroneously, although he had the concurrence of two able
Judges, Le Blanc and Bayley) that the marriage was void and
their children were bastards, because the Court of Chancery had
not appointed a guardian to the minor, to consent to the mar-
riage. This most revolting decision might have been avoided by
holding on the true principles for construing statutes, that although
Lord Hardwicke's Act (26 Geo. II. c. 33) says that all mar-
riages not solemnized in the manner therein mentioned shall be
void, this nullification applies only to the marriages of persons
* G East, 583 ; 7 East, 65. t 10 East, 536. Conway v. Gray.
LIFE OF LORD ELLENBOROUGH. 161
in the contemplation of the legislature, and that the marriages
of illegitimate minors could not have been in the contemplation
of the legislature with respect to this consent, as the condition
requiring the consent of parents or guardians could not be ful-
filled— so that this being casus omissus, the marriage in question
was valid. But Lord Ellenborough's nature was somewhat
stern, and he did not dislike a judgment that others would have
found it painful to pronounce — rather rejoicing in an opportunity
of showing that he was not diverted by any weak sympathies from
the upright discharge of his duty.*
However, he was always eager to extend the protection of Case of the
British law to all who were supposed to be oppressed. Upon an TOT VENUS.
affidavit that an African female, formed in a remarkable manner,
was exhibited in London under the name of the HOTTENTOT
VENUS, the deponents swearing that they believed she had been
brought into this country and was detained here against her will,
he granted a rule to show cause why a writ of habeas corpus
should not issue to her keepers to produce her in court, and that
in the mean time the Master of the Crown-office and persons to
be appointed by him should have free access to her :
At Venus s&therios inter Dea Candida iiimbos
Dona ferens aderat.
She appeared before the Master and his associates magnifi-
cently attired, offered them presents, and declared that she came
to and remained in this country with her free will and consent.
A report to this effect being made to the Court, Lord Ellen-
borough said, " We have done our duty in seeing that no human
being, of whatever complexion or shape, is restrained of liberty
within this realm. Let the rule be discharged." |
One of the most important questions which arose in the Court Liability of
of King's Bench, while Lord Ellenborough was Chief Justice, was, ship of war
whether the captain of a man-of-war be liable to an action for Jone iT^her
negligent
* Priestly v. Hughes, 11 East, 1. Mr. Justice Grose dissented ; the decision maiiaSe'
was condemned by Westminster Hall, and finally the law was rectified by the D
Legislature. 4 Geo. IV. c. 76 ; 6 and 7 Wm. IV. c. 85.
t Hottentot Vonus's Case, 13 East, 384.
VOL. III. M
162 KEIGN OF GEOKGE III.
C HAP. damage done by her in running down another vessel, without
.XLIX^.
' » ' proof of any personal misconduct or default ? An award had
been made against him by a legal arbitrator, who set out the
facts on the face of his award for the opinion of the Court.
Lord Ellenborough. — " Captain Mouncey is said to be liable for the
damages awarded in this case, by considering him in the ordinary
character of master of the ship by means of which the injury was
done. But how was he master ? He had no power of appointing
the officers or crew on board ; he had no power to appoint even
himself to the station whicli he filled on board ; he was no volunteer
in that particular station, by having entered originally into the naval
service ; he had no choice whether he would serve or not with the
other persons on board, but was obliged to take such as he found
there and make the best of them. He was the King's servant sta-
tioned on board this ship to do his duty there, together with others
stationed there by the same authority to do their several duties. How,
then, can he be liable for their misfeasance any more than they for
his ?" [Award set aside.] *
Lord Ellen- The only occasion when Lord Ellenborough was ever seriously
supposed to supposed to be swayed by his own interest, was in deciding
fT m" d b wnether sailors employed in the lobster-fishery were privileged
his love of from being pressed into the Royal Navy. He had an extreme
sauce. love of turbot, with lobster-sauce, and although sailors employed
in the deep-sea fishing, where turbots are found, were allowed to
be privileged from impressment, the Admiralty had issued orders
for impressing all sailors employed in collecting lobsters on the
rocks and bringing them to Billingsgate. Writs of habeas corpus
having been granted for the purpose of discharging several who
had been so impressed, the counsel for the Crown argued strenu-
ously that upon the just construction of 2 Geo. III. c. 15, and
50 Geo. III. c. 108, they were not entitled to any exemption,
not being engaged in the deep-sea fishing.
Lord Ellenborough. — " I think the policy of the legislature seems
to have been directed to the better supplying the inhabitants of the
metropolis and other parts of the kingdom with fish, and for that
purpose to bring sound and well-flavoured fish to our markets at a
Nicholson v. Mouncey, 15 East, 384.
LIFE OF LORD ELLENBOROUGH. 163
moderate price. It is contended, however, that the protection CHAP.
extends only to those who are engaged in fishing in deep waters, *
and that lobsters are found in shallow waters. Stat. 50 Geo. III.
c. 108, does in its preamble recite that ' various sorts of fish do in
the winter retire into the deep water, and that for the supply of the
metropolis a larger class of fishing-boats, which cannot be navigated
without additional hands, must be employed ;' but it enacts, * that
every person employed in the fisheries of these kingdoms shall be ex-
empted from being impressed.' Then is not the lobster-fishery a
fishery, and a most important fishery, of this kingdom, though carried
on in shallow water? The framers of the law well knew that the
produce of the deep sea, without the produce of the shallow water,
would be of comparatively small value, and intended that the turbot,
when placed upon our tables, should be flanked by good lobster-
sauce. ' Fisheries of these kingdoms ' are words of a large scope,
embracing all those fisheries from which fish are supplied in a fresh
and wholesome state to the markets of these kingdoms, and all who
are engaged in such fisheries are within the equity of the Act. Let
the rule be absolute." *
In Chamberlain v. Williamson,*f> the curious question arose May the
whether the personal representative of a young lady who had a lady
died, being forsaken by her lover who had promised to marry her,
could maintain an action against him for breach of the promise breach of .
0 promise of
to marry. The plaintiff had recovered a verdict with large marriage?
damages, but a motion was made in arrest of judgment.
Lord Ellenborough. — " The action is novel in its kind, and not one
instance is cited or suggested in the argument of its having been
maintained, nor have we been able to discover any by our own
researches and inquiries ; and yet frequent occasion must have oc-
curred for bringing such an action. However, that would not be a
decisive ground of objection if, on reason and principle, it could
strictly be maintained. The general rule of law is actio personalis
moritur cum persona; under which rule are included all actions for
injuries merely personal. Executors and administrators are the
representatives of the temporal property, that is, the goods and debts
of the deceased, but not of their wrongs, except where those wrongs
operate to the temporal injury of their personal estate. If this action
* See Payne and Thoroughgood's Case, 1 M. and S. 223.
t 2 M. and S. 409.
M 2
164
REIGN OF GEORGE III.
CHAP.
XLIX.
May a
trespass
committed
in fox-
hunting be
justified ?
be maintainable, then every action founded on an implied promise to
a testator, where the damage subsists in the previous personal suffer-
ing of the testator, would also be maintainable by the executor or
administrator. All actions affecting the life or health of the deceased ;
all such as arise out of the unskilfulness of medical practitioners ;
the imprisonment of the. party brought, on by the negligence of his
attorney ; all these would be breaches of the implied promise by the
persons employed to exhibit a proper portion of skill and attention.
Although marriage, may be considered as a temporal advantage to
the party, as far as respects personal comfort, still it cannot be con-
sidered in this case as an increase of the individual transmissible
personal estate, but would operate rather as an extinction of it. We
are of opinion that this judgment must be arrested."
An action being brought by the Earl of Essex against the
Honourable and Reverend Mr. Capel, which charged that the
defendant had committed a trespass in breaking and entering his
grounds, called Cashiobury Park, and with horses and hounds
destroying the grass and herbage, and breaking down his fences,
the defendant justified, that the fox being a noxious animal and
liable to do mischief, he, for the purpose of killing and destroying
him, and as the most effectual means of doing so, broke and
entered the park with hounds and horses, and hunted the fox.
Replication, that his object was — not to destroy the fox but, the
amusement and diversion afforded by the chace. After two wit-
nesses had been examined, Lord Ellenborough interrupted the
further progress of the cause : —
" This is a contending against all nature and conviction. Can it
be supposed that these gentlemen hunted for the purpose of killing
vermin, and not for their own diversion? Can the jury be desired to
say, upon their oaths,, that the defendant was actuated by any other
motive than a desire to enjoy the pleasures of the chace ? The de-
fendant says that he has not committed the trespass for the sake of
the diversion of the chace, but as the only effectual way of killing
and destroying the fox. Now, can any man of common sense hesi-
tate in saying that the principal motive was not the killing vermin,
but the sport ? It is a sport the law of the land will not justify, with-
out the consent of the owner of the land, and I cannot make a new
law accommodated to the pleasures arid amusements of these gentle-
men. They may destroy such noxious animals as are injurious to
LIFE OF LOKD ELLENBOKOUGH. 165
the commonwealth, but the good of the public must be the governing CHAP.
,. j, XLIX.
motive. '
Nor was more countenance shown by the Chief Justice to a illegality of
cock-fight-
barbarous sport formerly in great favour with country squires, ing.
but which the increased refinement of modern manners has
tended to discourage. He refused to try an action for money
had and received for a wager on a cock-fight : —
" This must be considered a barbarous diversion, which ought not
to be encouraged or sanctioned in a court of justice. I believe that
cruelty to these animals in throwing at them forms part of the de-
hortatory charge of judges to grand juries, and it makes little dif-
ference whether they are lacerated by sticks and stones, or by the
bills and spurs of each other. There is likewise another principle on
which I think an action on such wagers cannot be maintained. They
tend to the degradation of courts of justice. It is impossible to be
engaged in ludicrous inquiries of this sort consistently with that
dignity which it is essential to the public welfare that a court of
justice should always preserve. I will not try the plaintiff's right
to recover the four guineas, which might involve questions on the
weight of the cocks and the construction of their steel spurs." *
It had long been a disputed question whether the consul of a Consuls not
foreign Prince residing in this country, and acknowledged as ^'public
such by our Government, be privileged from arrest for debt. mmlsters-
A motion was at last made to discharge out of custody the
consul of the Duke of Sleswick Holstein Oldenburg, who had
been arrested for a debt contracted by him as a merchant in this
country :
Lord Elleriborough. — -t( Every person who is conversant with the
history of this country is not ignorant of the occasion which led to
the passing of the statute 7 Anne, c. 12. An ambassador of the
Czar Peter had been arrested, and had put in bail; and this
matter was taken up with considerable inflammation and anger by
several of the European Courts, and particularly by that potentate.
In order to soothe the feelings of these powers the act of parliament
was passed, in which it was thought fit to declare the immunities and
privileges of ambassadors and public ministers from process, and it
Squires v. Whisken, 3 Camp. 140.
166 REIGN OF GEORGE III.
C HAP. vvas enacted ' that in case any person should presume to sue forth or
y- ^ ' ' prosecute any such writ or process, such persons being thereof con-
victed, should be deemed violators of the law of nations and dis-
turbers of the public repose, and should suffer such penalties and
corporal punishment as the Lord Chancellor or the Chief Justice of the
Queen's Bench or Common Pleas, or any two of them, should adjudge
to be inflicted.' Thus was conferred a great and extraordinary
power, which I am glad to think belongs in no other instance to those
functionaries. The act goes on to declare that ' all writs and pro-
cesses that shall in future be sued forth, whereby the person of any
ambassador or other public minister of any foreign Prince or State
may be arrested or imprisoned, shall be deemed to be utterly null
and void.' Here the question is, if this defendant be an ambassador
or other public minister of a foreign Prince or State ? He certainly
is a person invested with some authority by a foreign Prince ; but
is he a public minister ? There is, I believe, not a single writer on
the law of nations, nor even of those who have written looser tracts
on the same subject, who has pronounced that a consul is eo nomine
a public minister."
Having minutely examined the authorities, and pointed out
that there was no usage to show that by the law of nations a
consul is entitled to any exemption from being sued in courts
of justice as any ordinary person, a rule was pronounced for
continuing the defendant in custody.*
Privilege of Lord Ellenborough, in the great case of Burdett v. Abbott, t
Commons stoutly maintained the doctrine denied by the plaintiff, that the
forom-1801 House of Commons has power to imprison for a contempt.
tempt. Having examined all the authorities cited, he observed,
" Thus the matter stands on parliamentary precedent, upon the
recognition by statute, upon the continued recognition of all the
Judges, arid particularly of Lord Holt, who was one of the greatest
favourers of the liberties of the people, and as strict an advocate for
the authority of the common law against the privileges of Parlia-
ment as ever existed. I should have thought that this was a quantity
of authority enough to have put this question to rest. Why should
the House of Commons not possess this power? What is there
against it? A priori, if there were no precedents upon the subject,
* Viveash r. Becker, 3 M. and S. 284. t 14 East, 1.
LIFE OF LOKD ELLENBOROUGH. 167
no legislative recognition, no opinions of Judges in favour of it, it CHAP,
is essentially necessary to the House of Commons, and they must •
possess it ; indeed they would sink into utter insignificance and con-
tempt without it. Could they stand high in the estimation and
reverence of the people, if, whenever they were insulted, they were
obliged to wait the comparatively slow proceedings of the ordinary
Courts of law for their redress ? — that the Speaker, with his mace,
should be under the necessity of going before a Grand Jury to prefer
a bill of indictment for an insult offered to the House? "
He then repelled with indignation the quibbling objections
made to tbe form of the warrant, and vindicated the right of
the officers to break open the outer door of the plaintiff's house
for the purpose of apprehending him.
But I think he did not lay down with sufficient discrimina- Doubtful
. . doctrine in
tion and accuracy the limits within which parliamentary pro- Rex v.
ceedings may be published without danger of an indictment.
Mr. Creevey, M.P. for Liverpool, in a debate in the House of
Commons respecting the collection of the public revenue, had
made a speech in which he pointed out some alleged miscon-
duct of an Inspector- General of Taxes. An inaccurate account
of this speech having been published, he printed and circulated a
full and correct one. For this he was indicted, on the ground that
it reflected on the Receiver- General, and therefore was a libel.
His counsel contended that he was absolutely entitled to an
acquittal on the admission made by the prosecution, that the
supposed libel was a true report of a speech made in the House
of Commons. This was very properly overruled by Le Blanc, J.,
the presiding Judge, on the authority of the conviction and
punishment of the Earl of Abingdon, who, having quarrelled
with his steward, made a scurrilous speech against him in the
House of Lords, which he maliciously published with intent to
defame him — but the learned Judge erroneously (I think) told
the Jury that " if there was anything in Mr. Creevey 's published
speech which reflected on the prosecutor, the publication of it
was a misdemeanor." The defendant being found Guilty, a
motion was made for a new trial on the ground of misdirection :
168 REIGN OF GEOEGE III.
CHAP. Lord Ellenborough. — " The only question is, whether the occasion
' of the publication rebuts the inference of malice arising from the
matter of it ? We cannot scan what the defendant said within the
walls of the House of Commons ; but has he a right to reiterate
these reflections to the public? — to address them as an oratio ad
populum, in order to explain his conduct to his constituents ? The
Jury have found that the publication was libellous, and I can see
no ground for drawing the subject again into discussion."
The rule was refused, and the defendant was sentenced to pay
a fine of 1007. — but if his object bond fide was to explain his
conduct to his constituents, I think he was entitled to a new
trial and to an acquittal.
Freedom of Lord Ellenborough nobly maintained the' freedom of literary
criticism, criticism. — Sir John Carr, Knight, a silly author, brought an
action against respectable booksellers for a burlesque upon
certain foolish Travels which he had given to the world, re-
lying upon a recent decision of Lord Ellenborough in Tablart
v. Tipper.
Lord Ellenborough.— " In that case the defendant had falsely
accused the plaintiff of publishing what he had never published.
Here the supposed libel only attacks those works of which Sir John
Carr is the avowed author; and one writer, in exposing the ab-
surdities and errors of another, may make use of ridicule, however
poignant. Ridicule is often the fittest instrument which can be
employed for such a purpose. If the reputation or pecuniary in-
terests of the party ridiculed suffer, it is damnum dbsque injuria.
Perhaps the plaintiff's Tour in Scotland is now unsaleable ; but is
he to be indemnified by receiving a compensation in damages from
the person who may have opened the eyes of the public to the bad
•taste and inanity of his composition? Who prized the works of
Sir Robert Filmer after he had been refuted by Mr. Locke, but
shall it be said that he might have maintained an action for defama-
•tion against that great philosopher, who was labouring to enlighten
and to ameliorate mankind? We really must not cramp observa-
tions upon authors and their works. Every man who publishes a
book commits himself to the judgment of the public, and any one
may comment upon his performance. He may not only be refuted,
but turned into ridicule if his blunders are ridiculous. Reflection
on personal character is another thing. Show me any attack on the
LIFE OF LOKD ELLENBOKOUGH. 169
plaintiff's character unconnected with his authorship, and I shall be CHAP,
as ready to protect him ; but I cannot hear of malice from merely v •
laughing at his works. The works may be very valuable for any-
thing I know to the contrary, but others have a right to pass judg-
ment upon them. The critic does a great service to society who
exposes vapid as well as mischievous publications. He checks the
dissemination of bad taste, and saves his fellow subjects from wasting
their time and their money upon trash. If a loss arises to the
author, it is a loss without injury ; it is a loss which the party ought
to sustain; it is the loss of fame and profit to which he never was
entitled. Nothing can be conceived more threatening to the liberty
of the press than the species of action before the Court. We
ought to resist an attempt against fair and free criticism at the
threshold."* [ Verdict for the Defendants.']
A good specimen of Lord Ellenborough's nisi prius manner Trespass by
is his opinion upon the question, whether a man by nailing to Cons°idered.
his own wall a board which overhangs his neighbour's field is
liable to an action of trespass :
" I do not think it is a trespass to interfere with the column of air
superincumbent on the close of another. I once had occasion to
rule on the circuit that a man who from the outside of a field dis-
charged a gun into it, so that the shot must have struck the soil,
was guilty of breaking and entering it. A very learned Judge
who went the circuit with me, having at first doubted the decision,
afterwards approved of it, and I believe that it met with the
general concurrence of those to whom it was mentioned. But I am
by no means prepared to say that firing across a field in vacuo, no
part of the contents touching it, amounts to a clausumfregit. Nay,
if this board commits a trespass by overhanging the plaintiff's field,
the consequence is that an aeronaut is liable to an action of trespass
at the suit of the occupier of every house and inch of ground over
which his balloon passes in the course of his voyage. Whether the
action lies or not, cannot depend upon the length of time for which
the superincumbent air is invaded. If any damage arises from
the overhanging substance, the remedy is by an action on the
case." f
Peter Hodgson, an attorney, having sued Mr. Scarlett, the
* Carr v. Hood and another, 1 Campb. 355.
f Pickering v. Kudd, 4 Campb. 220.
170 REIGN OF GEORGE III.
celebrated counsel (afterwards Lord Abinger and Chief Baron
of the Exchequer), for speaking these words, " Mr. Hodgson
is a fraudulent and wicked attorney," it appeared that the
criminate words were spoken in an address to the Jury in a trial in-
volving the good faith of a transaction which Mr. Hodgson had
conducted :
Lord Ellenborough. — " The law privileges many communications
which otherwise might be considered calumnious, and become
the subject of an action. In the case of master and servant the
convenience of mankind requires that what is said in fair com-
munication between man and man, upon the subject of character,
should be privileged if made bond fide and without malice. So a
counsel intrusted with the interests of others, and speaking from their
information, for the sake of public convenience, is privileged in com-
menting fairly on the circumstances of the case, and in making
observations on the parties concerned and their agents in bringing
the cause into court. Now the plaintiff in this case was not only
the attorney, but was mixed up in the concoction of the antecedent
facts, out of which the original cause arose. It was in commenting
on this conduct that the words were used by the defendant. Per-
haps they were too strong, but the counsel might bond fide think
them justifiable and appropriate. They were relevant and pertinent
to the original cause in which they were spoken, and consequently
this action is not maintainable." *
Award of Richard Thornton having been tried at Warwick upon an
battle on an indictment, in the King's name, for the murder of Mary Ashford,
and found Not Guilty by the jury, William Ashford, her brother
and heir-at-law, sued out an appeal of murder against him.
The appellee being brought by writ of habeas corpus into the
Court of King's Bench to plead, he pleaded viva voce as follows :
" Not Guilty, and I am ready to defend the same by my body,"
and thereupon taking off a gauntlet which he wore from his
right hand, he threw it on the floor of the Court. The appellor
having obtained time for that purpose, with a view to deprive
the appellee of the privilege of trial by battle, put in a counter-
plea, setting forth evidence of circumstances tending strongly to
* Hodgson v. Scarlett, 1 Barn, and Aid. 232.
LIFE OF LORD ELLENBOKOUGH. 171
prove his guilt. To this the appellee put in a replication, CH£J*'
setting forth facts in his favour, and his former acquittal. The *— • v '
appellor demurred. The question was then very learnedly
argued, whether upon this record the appellee was entitled to
insist upon trial by battle ? —
Lord Ellenborough. — " The cases which have been cited in this
argument, and the others to which we ourselves have referred, show
very distinctly that the general mode of trial by law in a case of
appeal is by battle, at the election of the appellee, unless the case
be brought within certain exceptions — as for instance, where the
appellee is an infant, or a woman, or above sixty years of age
— or where the appellee is taken with the manour, or has broken
prison. In addition to all these, — where, from evidence which may
be adduced, there is a violent presumption of guilt against the
appellee, which cannot be rebutted. Without going at length into
the discussion of the circumstances disclosed by the counter-plea and
replication, it is quite sufficient to say that this case is not like those
in Bracton ; it is not one with conclusive evidence of guilt. Contrary
evidence must be admitted if there were a trial by jury. The con-
sequence is, that trial by battle having been duly demanded, this is
the legal and constitutional mode of trial, and it must be awarded.
The law of the land is in favour of the trial by battle, and it is our
duty to pronounce the law as it is, and not as we may wish it to be.
Whatever prejudices therefore may justly exist against this mode of
trial, still as it is the law of the land the Court must pronounce
judgment for it."
The public now expected to see the lists prepared in Tothill
Fields, and the battle fought out before the Judges, for whom a
special tribunal was to have been erected; but the appellor,
who was much inferior in strength to the appellee, cried craven,
and declining to proceed, the appellee was discharged.*
Bidding adieu to pure law, which I am afraid may be thought Lord Eilen-
by many "rough and crabbed," I must now present Lord Ellen- the House
borough to my readers as a Peer of Parliament, and give some
* Ashford v. Thornton, 1 Bam. and Aid. 405. In consequence of the scan-
dal occasioned by this case, stat. 59 Gco. III. c. 46 was passed, abolishing
criminal appeals, and trial by battle in write of right which till then might
have been demanded.
172 EEIGN OF GEOKGE III.
account of trials before him of a political and historical aspect.
Some expected that he would have great success in the Upper
House, — and, as often as he spoke there, he made a considerable
sensation by his loud tones and strong expressions ; but he was
not listened to with much favour, for their Lordships thought
that he was not sufficiently refined and polished for their delicate
ears, and they complained that he betrayed a most unjudicial
violence.
His maiden His maiden speech, which gave an alarming earnest of these
faults, was in the debate on the definitive treaty of peace with
1802. °' France. Having apologized to another Peer, who had risen
and begun to speak at the same time with him, and expressed
his extreme reluctance to obtrude himself upon their Lordships
so very soon after taking his seat among them, — he addressed
himself to Lord Grenville's objection, that, contrary to usage
and sound diplomacy, this treaty did not renew or recognize
former treaties :
" With regard to the noble Lord's argument, that by the omission
the public law of JEurope has become a dead letter, I am astonished
to observe a man of talents fall into such a mistake. To what use
would the revival of all the solemn nonsense and important absurdity
contained in those treaties have contributed ? Are they not replete
with articles totally inapplicable to the present situation of Europe,
and are they not for this reason become unintelligible trash and
absolute waste paper ? With respect to the Cape of Good Hope,
the cession of which is so much deplored, I say, my Lords, that
we are well rid of it. There is no advantage in that post, and the
expense of it would have been so great that the country would soon
have complained of its retention."
So he went over all the articles of the treaty, and concluded
with expressing his warm thanks to the ministers —
" who had taken the helm of State when others had abandoned it,
and who had restored the blessings of peace to their exhausted
country." *
This bullying style of oratory was not favourably received,
* 36 Parl. Hist. 718.
LIFE OF LORD ELLENBOROUGH. 173
but, luckily for the orator, on this occasion he could do no harm, CHAP.
"X"T TY
Whigs as well as Ministerialists being determined to vote for ^ T ' •
the treaty, — and the minority of violent anti-Gallicans who cen- A-D- 1802-
sured it amounted only to sixteen.*
Lord Ellenborough was quite insensible of the impression
made by his violence, and soon after, there being an attack on
ministers, he began his defence of them by saying that " he could
not sit silent when he heard the capacity of able men arraigned
by those who were themselves most incapable, and when he
saw ignorance itself pretending to decide on exuberant know-
ledge possessed and displayed by others." t The Chief Justice
of England being a peer may, with propriety and effect, take
part in the debates of the House of Lords on important ques-
tions of statesmanship, such as the causes of war and the
conditions of peace, but he should comport himself rather as
a judge calmly summing up evidence and balancing arguments,
than as the retained, advocate of the Government or of the
Opposition.
Lord Ellenborough, till he himself became a cabinet minister, His ex-
, . , • i i • i ' i • • • i posure or
did not again break out with violence, save in opposing a job so the Athoi
gross that he was rather applauded for boldly pronouncing its J0 '
true character. The Athol family, for certain rights in the Isle
of Man, of which they were deprived, had been superabundantly
compensated ; but many years after the bargain into which they
had voluntarily and gratefully entered, they made a claim for
further compensation, — which the Government, at a time when
prodigality of expenditure ranked among ministerial virtues, was
disposed to grant. A bill was introduced into Parliament for
the purpose, and this bill, without Lord Ellenborough's deter-
mined opposition to it, would have been quietly smuggled
through. He began by moving that certain additional papers
upon the subject should be printed, and that the second reading
of the bill should be postponed till there might be an oppor-
tunity of perusing and considering them. This was resisted
by the Earl of Westmoreland :
* 36 Parl. Hist. 738. t Ib. 1572.
174 REIGN OF GEORGE III.
C HAP. Lord Ellenlorough. — " My Lords, when I look at the papers just
* * now printed, and still reeking from the press, so that I cannot open
A.D. 1803- them without endangering- my health — when Hook at a folio volume
' of 140 uncut pages, presented this day by the noble Earl, I cannot
but enter my solemn protest against pretending to debate the merits
of this bill under such circumstances — against a proceeding which
could only be sanctioned by Parliament in the worst and most cor-
rupt times. I do not ask for a long delay, but I hope that noble
Lords will consult their own dignity, and show some deference to
public opinion, by granting a short time for gaining necessary in-
formation, that we may see whether we are not robbing the Exche-
quer to put the plunder into the pocket of an accomplice. I pause
for a reply. [Having sat down for a few moments he thus resumed.]
Then I am to understand, my Lords,, that it is your intention to
proceed with this bill to-night. With the imperfect lights I have, I
shall try to expose to you some of the deformities of the bill. In
the first three lines of the preamble, it tells three lies. The Isle of
Man was never granted in sovereignty by the King of England,
but to be held in petty sergeanty by the presentation of two falcons
to the King at his coronation. This must have been known to the
author of the bill — yet ' like a tall bully '- — I will not finish the line.
When the noble Earl talks of Acts of Parliament not binding the
Isle of Man, I am astonished at the puerility of the argument; if
Acts of Parliament cannot bind the Isle of Man, the Act passed in
1765 for the purchase of the Isle is a nullity. Then we have the
assertion that the compensation given to the late Duke of Athol was
inadequate. The late Duke named his own sum, and in the course
of forty years his family have received 177,000^. more than they
were entitled to. You propose to open on its hinges a door to fraud,
which, like a door described in t Paradise Lost,' if once opened will
never be shut again. Never did I witness a gross job present itself in
Parliament in such a bodily form as this. In a few days Parliament
will be dispersed, and let us not return to our respective homes with
the stigma of having passed such a bill. Let us not at a moment
like this, when all classes are ground down with taxes, add to their
burdens by voting a boon to mendicant importunity. If indeed our
supplies were unlimited, if we could draw upon them without any
fear of exhaustion, if the resources of the state grew like the fabled
Promethean liver under the beaks and talons of the vultures by whom
they are lacerated and devoured, then indeed we might yield to this
demand. The times are critical ; our dangers are great — the state
of our finances is hopeless ; let us not, my Lords, imitate the conduct
LIFE OF LOKD ELLENBOROUGH. 175
of reckless sailors in a storm, who, when they see the vessel driving- CHAP,
on the rocks, instead of trying to save her, throw up the helm,
abandon the sails, and fall to breaking open the lockers. If we
would avoid the thunderbolts of divine vengeance which seem ready
to burst upon us, let us rather deck ourselves in the robes of virtue,
and with the love of God let us try to recover the love of the people,
of whom we ought to be the protectors, not the spoliators. Be the
event what it may, liberavi animam meam"
Several " silken barons " having complained of this language
as too strong and unparliamentary, Lord Ellenborough said,
" The attack made upon me would have been just had I said
anything wantonly to give pain to any noble Lord ; but my
observations were applied to the measure, not to any individual
whatever ; and by no milder words than those I used could the
measure be truly characterised." *
When the war was renewed after the truce following the Right of
supposed treaty of peace signed at Amiens, Lord Ellenborough, to^he'0"
in supporting the Volunteer Consolidation Bill, very stoutly militair
defended the prerogative of the Crown to call out the whole all subjects.
population for the defence of the realm :
" In an age of adventurous propositions," said he, " I did not
expect that any noble Lord would have ventured to question this
radical, essential, unquestionable, and hitherto-never-questioned pre-
rogative. My Lords, from the earliest period of our history we
have been a military people ; and this right, inherent in the Crown
from the Norman Conquest, cannot be abandoned without an act of
political suicide. I hold in my hand a copy of the Commission of
array passed in the fifth year of Henry IV., referred to by Lord
Coke in his Fourth Institute, written in the reign of James I., ac-
knowledged by him to be law, and never since repealed or modified.
Here, my Lords, we have a solemn recognition of the power of the
Sovereign to require in case of insurrection, or the apprehension of
invasion, the services of all his subjects capable of bearing arms —
in the words of the Commission, potentes et habiles in corpore.
This power, my Lords, is inherent in the supreme executive govern-
ment in every state. Vattel and the other writers on the Law of
* 5 Parl. Deb. 773-792. After all, to the great discredit of Mr. Pitt's second
administration, the bill passed.
170 EEIGN OF GEOKGE III.
XLLK* Cations are unanimous in saying that the power exists in all coun-
* /—— ' tries, royal or republican, which have anything like civilised rule.
A.D. 1803- As to the noble Lord's supposition that this prerogative enables the
' King to throw all classes indiscriminately into the ranks, I say such
an abuse of it is not necessary, and would not be tolerated : men
upon the contemplated emergency are to be employed according to
their habits of life, and to the modes in which they would be most
useful. But I trust that in case of extreme necessity no individual
who bears the semblance of a man, who values his country and his
domestic ties, and who knows his duty to fight body to body, pro aris
et focis, will stickle about the mode in which his energies can be most
advantageously brought into action. My Lords, unfitted even as I am
by education and habit for a campaign, yet in such a case of extreme
necessity I should not think I did my duty to my country or to my
children, if I did not cast this gown from my back, and employ every
faculty of my mind and of my body to grapple with the enemy."
His martial ardour was much applauded, and appeared the
more wonderful from his speaking on this and all other occasions in
the House of Lords attired in his black silk robes and with a
judicial wig.* His hearers likewise recollected the well-known
fact that when Attorney-General he had enlisted in a volunteer
corps, and had never been promoted to the ranks out of the
awkward squad, the drill-serjeant having in vain tried by chalk
and other appliances to make him understand the difference
between his right foot and his left, or with which of them he
was to step forward on hearing the word " MARCH ! "
His hos- The only other considerable speech which he made before Mr.
Roman° * Pitt's death was against Lord Grenville's motion for a committee
Catholics. on the Catholic Petition, when he so violently opposed any further
concession to the Roman Catholics, that the public were much
surprised to find him sitting, soon after, in the same Cabinet
with Lord Grenville and Charles Fox. We cannot be surprised
that this Cabinet was so short-lived, although it contained " all
the talents" of the country. Lord Ellenborough very sensibly
and forcibly pointed out on this occasion the inconvenience
arising from giving power to religionists owning the supremacy
* Lord Denman was the first Chief Justice who appeared in the House of
LiOrds en bourgeois.
LIFE OP LORD ELLENBOROUGH. 177
of a foreign pontiff; but he caused a smile when, in describing CHAP,
the danger of the Pope again subjecting Great Britain to his
sway, he quoted the lines— A>D<
" Jam tenet Italiam, tamen ultra pergere tendit
Actum inquit nihil est, nisi Poeno milite portas
Frangimus et media vexillum pono suburra." *
Although Lord Ellenborough's success as a debater in the Trial of
House of Lords was doubtful, he was securing to himself a great Despard for
reputation as a Criminal Judge. He presided with applause at l
the trial of Colonel Despard for high treason in plotting the
insane scheme to establish a republic after massacring the King,
the royal family, and the greatest number of the members of both
Houses of Parliament. I was present at this trial, and well Feb. 7,
1803
remember the Chief Justice's very dignified, impressive, and
awe-inspiring deportment. He caused some dissatisfaction by
thus abruptly and sarcastically snubbing the great Nelson, who,
when called to give the prisoner a character, was proceeding to
describe his gallant conduct in several actions : " I am sorry to
be obliged to interrupt your Lordship, but we cannot hear what
I dare say your Lordship would give with great effect, the history
of this gentleman's military life."
At two in the morning I saw the Chief Justice put on the
black cap to pronounce the awful sentence of the law on
Colonel Despard and his associates, and I heard him utter
these thrilling sentences : —
" After a long and I trust a patient and impartial trial, you have
been severally convicted of the high treasons charged upon you by
the indictment. In the course of the evidence which has been laid
before the Court, a treasonable conspiracy has been disclosed of
enormous extent and most alarming magnitude. The object of that
conspiracy, in which you have borne your several very active and
criminal parts, lias been to overthrow and demolish the fundamental
laws and established government of your country ; to seize upon and
destroy the sacred person of our revered and justly-beloved Sovereign ;
to murder the various members of his royal house ; to extinguish the
* This appears much less absurd now, after Pio Nono's creation of the
archbishopric of Westminster, and his partition of all England into Roman
Catholic sees.— September, 1855.
VOL. III. N
178 REIGN OF GEORGE III.
CHAP, other branches of the legislature of this realm, and, instead of the
' "" T ' » ancient limited monarchy, its free and wholesome laws, its approved
A.D. 1803- usages, its useful gradations of rank, its natural and inevitable as
l06' well as desirable inequalities of property, to substitute a wild scheme
of impracticable equality, holding out, for the purpose of carrying
this scheme into effect, a vain and delusive promise of provision for
the families of the heroes (falsely so called) who should fall in the con-
test— a scheme equally destructive of the interests and happiness of
those who should mischievously struggle for its adoption as of those
who should be the victims of its intended execution. This plan has
been sought to be carried into eifect in the first place by the detest-
able seduction of unwary soldiers from their sworn duty and alle-
giance to his Majesty and by the wicked ensnaring of tneir consciences
by the supposed obligation of an impious and unauthorised oath, and
next by the industrious association to this purpose of the most needy
or the most unprincipled persons in the lowest ranks of society. It
is, however, wisely ordained by Divine Providence, for the security
and happiness of mankind, that the rashness of such counsels does
for the most part counteract and defeat the effects of their malignity,
and that the wickedness of the contrivers falls ultimately upon their
own heads, affording at the same time the means of escape and se-
curity to the^intended victims of their abominable contrivances. The
leagues of such associates are at all times false and hollow. They
begin in treachery to their king and country, and they end in schemes
of treachery towards each other. In the present instance your crimes
have been disclosed and frustrated through the operation of the same
passions, motives, and instruments by which they were conceived,
prepared, forwarded, and nearly matured for their ultimate and most
destructive accomplishment. Upon the convicted contrivers arid
instruments of this dangerous but abortive treason it remains for me
to perform the last painful part of my official duty. As to you,
Colonel Edward Marcus Despard, born as you were to better hopes,
intended and formed as it should seem by Providence for better ends ;
accustomed as you have hitherto been to better habits of life and
manners, pursuing as you once did, together with the honourable
companions of your former life and services (who have appeared as
witnesses to your character during that period), the virtuous objects
of loyal and laudable ambition ; I will not at this moment point out
to you ho\v much all these considerations and the degraded and igno-
minious fellowship in which you now stand enhance the particular
guilt of your crime, sharpening and embittering, as I know they
must, in the same proportion the acuteness and pungency of your
LIFE OF LORD ELLENBOKOUGH. 179
present sufferings. I entreat you, however, by the memory of what CHAP,
you once were, to excite and revive in your mind an ardent and ^ ' •
unceasing endeavour and purpose during the short period of your A.D 1803-
remaining life to subdue that callous insensibility of heart of which,
in an ill-fated hour, you have boasted, and to regain that salutary
and more softened disposition of the heart and affections which I trust
you once had, and which may enable you to work out that salvation
which, from the infinite mercy of God, may even yet be attainable by
effectual penitence and prevailing prayers. As to you, John Wood
(naming eight others), the sad victims of his seduction and example,
or of your own wicked, discontented, and disloyal purposes, you afford
a melancholy but I hope an instructive example to all persons in the
same class and condition with yourselves — an example to deter them
by the calamitous consequences which presently await your crimes
from engaging in the same mischievous and destructive counsels and
designs which have brought you to this untimely and ignominious
end. May they learn properly to value the humble but secure
blessings of an industrious and quiet life, and of an honest and loyal
course of conduct — all which blessings you have in an evil hour
wilfully cast from you. The same recommendation which I have
already offered to the leader in your crimes and the companion in
your present sufferings as to the employment of the short remainder
of your present existence I again repeat, and earnestly recommend
to every one of you ; and may your sincere and deep penitence obtain
for you all hereafter that mercy which a due and necessary regard
to the interest and security of your fellow- creatures will not allow of
your receiving here. It only remains for me to pronounce the sen-
tence of the law upon the crime of which you are convicted. That
sentence is, and this Court doth adjudge that, &c."
Then came the dreadful enumeration of the barbarities which
the law at that time adjudged to be inflicted on traitors — now
commuted for hanging and beheading.*
Colonel Despard and six of his associates actually were exe-
cuted ; — and, the revolting parts of the sentence being remitted,
the public did not complain of undue severity. The temptation
to engage in such conspiracies, which promise suddenly to elevate
those who engage in them to power, wealth, and fame, cannot
* 28 St. Tr. 315-528.
N2
180 REIGN OF GEORGE III.
CHAP, be counteracted by the dread, on failure, of a term of imprison-
ment, or even of transportation with the hope of a speedy recall.
^n attempt f°r selfish purposes to overturn the monarchy
and to inundate the country with blood cannot be leniently
treated as a mere " political offence."
Trial of Lord Ellenborough was soon after placed in a most difficult
Peltier for .. • i A V«i i • i •
a libel on situation on a trial for libel, the prosecutor being no other than
Buonaparte Napoleon Buonaparte. This autocrat having extinguished
liberty in France and conquered the continent of Europe, was
resolved to put down free discussion in England, as a pre-
liminary to the extension of his empire over the British Isles.
He was galled by the severe strictures on his conduct which
appeared in the London journals, and he remonstrated upon the
subject to our ministers, but received for answer that the law,
which in England is supreme, gave them no power to interfere.
At last there came out in the AMBIGU, a periodical in the
Erench language, published in London by M. Peltier, a French
emigrant, a poem and other articles, which in one sense might
be construed into an exhortation to assassinate the First Consul.
A new representation was made by the French ambassador, and
the Attorney-General was directed to file a criminal informa-
tion against the Editor. The most objectionable passage con-
tained the following allusion to the fabled death and apotheosis of
Romulus : —
" II est proclame Chef et Consul pour la vie
Pour moi, loin qu'a son sort je porte quelque envie,
Qu'il nomme, j'y consens, son digne successeur ;
Sur le pavois porte qu'on 1'elise EMPEREUR ;
Enfin, et Romulus nous rappelle la chose,
Je fais voeu . . . des demain qu'il ait
Feb. 21, At the trial before Lord Ellenborough and a special jury,
Mr. Perceval, then Attorney- General, soon after prime minister,
evidently ashamed of the task imposed upon him, tried to make
out that the defendant really wished to instigate assassination ;
and Mackintosh, in one of the finest essays ever composed, argued
that the publications complained of were mere pieces of jocu-
LIFE OF LOED ELLENBOKOUGH. 181
larity, and that it was the duty of the jury to resist this effort to C HAP.
enslave the press in the only country in which it could proclaim
truth to the world. A>D'
Lord Ellenborough. — " Gentlemen, it is my duty to state to you
that every publication which has a tendency to promote public
mischief, whether by causing irritation in the minds of the subjects of
this realm that may induce them to commit a breach of the public
peace or may be injurious to the morals and religion of the country,
is to be considered a libel. So if it defames the characters of
magistrates and others in high and eminent situations of power and
dignity in other countries, expressed in such terms or in such a
manner as to interrupt the friendly relations subsisting with foreign
states in amity with us, every such publication is what the law calls
a libel. Cases of this sort have occurred within all our memories.
Lord George Gordon published a libel on the person and character
of the Queen of France, and another person grossly vituperated
Paul, the late Emperor of all the Russias. In both these cases
there were prosecutions, convictions, and judgments, and I am not
aware that the law on which these proceedings were founded was
ever questioned. If the publication contains a plain and manifest
incitement to assassinate magistrates, as the tendency of such a pub-
lication is to interrupt the harmony subsisting between the two
nations, the libel assumes a more criminal complexion. What inter-
pretation do you put on these words ? — ' As for me, far from envying
his lot, let him name, I consent to it, his worthy successor ; carried
on the shield, let him be elected Emperor. Finally (Romulus recalls
the thing to mind) I wish that on the morrow he may have his
apotheosis.' This is a direct wish by the author, that if Buonaparte
should be elected Emperor of that country, of which he then held
the government, his death might be instantaneous — or that his de-
struction might follow on the next day. Every body knows the
supposed story of Romulus. He disappeared; and his death was
supposed to be the effect of assassination. If the words were
equivocal and could bear two constructions, I should advise you to
adopt the mildest ; but if these words can bear this sense and this
only, we cannot trifle with our duty ; we cannot invent or feign a
signification or import which the fair sense of the words does not
suggest."
He then proceeded to comment on other passages, and
according to the fashion which still prevailed under a supposed
182 EEIGN OF GEOKGE III.
CHAP, injunction of Mr. Fox's Libel Bill not to be found there, he
' /^-^ declared that in his opinion the publication was libellous. Thus
A'D'l8ot he concluded :-
" Gentlemen, I trust that your verdict will strengthen the rela-
tions by which the interests of this country are connected with
those of France, and that it will illustrate and justify in every part
of the world the unsullied purity of British Courts of Justice, and of
the impartiality by which their decisions are uniformly governed."
In spite of a verdict of Guilty, which the jury under this
direction immediately returned, hostilities were very soon re-
newed with France. Owing1 to this rupture the defendant was
not called up to receive judgment — a very undignified course on
the part of the Government ; for the prosecution, if justifiable,
must be considered as having been commenced to vindicate the
majesty of English law — not to humour the First Consul of the
French republic.*
While Mr. Addington remained prime minister, Lord Ellen-
borough warmly supported him as a partisan ; but when Mr.
Pitt resumed the helm, the Chief Justice confined himself almost
entirely to the discharge of his official duties, and seemed to
have renounced politics for ever.
* 28 St. Tr. 529-620.
LIFE OF LOED ELLENBOROUGH. 183
CHAPTER L.
CONTINUATION OF THE LIFE OF LORD ELLENBOROUGH TILL THE TRIAL OF
LORD COCHRANE.
ON the death of Mr. Pitt, after the signal failure of his last
confederacy for the humiliation of France, a new ministry was
to be formed, and so deplorable was the state of public affairs, A-D- 1806*
that the King's antipathy to Mr. Fox could no longer exclude j^^l
him from office. Lord Ellenborough little thought that he member of
e > the Cabinet.
himself could in any way be comprehended in the new arrange-
ment. However, instead of forming a Cabinet of Lord Howick,
Lord Grenville, and those in whose principles Mr. Fox agreed
and with whom he had been lately acting in opposition, it was
arranged that there should be a broad bottom administration,
and that, to please the King, Mr. Addington, now become Lord
Sidmouth, should be asked to join it. He refused to go in alone,
thinking that in that case he might be a cipher, and it was con-
ceded to him that he should bring in a friend with him. He
named Lord Ellenborough, to whom personally no objection
could be made. The Great Seal was offered to the Chief Justice,
and pressed upon him ; but he positively refused it, partly from
a misgiving as to his competency to preside in Equity, and still
more from a foreboding that the new ministry, although it was
to include " all the talents " of the country, might be short lived.
One great object which the Whigs had in view was to make
Erskine Chief Justice of the King's Bench, an office for which
he was allowed to be eminently competent ; whereas his qualifi-
cations for the woolsack were deemed very doubtful. Lord
Ellenborough advised that an attempt should be made to induce
Sir James Mansfield, the Chief Justice of the Common Pleas,
to take the Great Seal, that Erskine might succeed him ; but the
offer being made, he at once said " No ! " — manfully giving as his
184 REIGN OF GEORGE III.
reason to the King and to his friends who pressed him to accept,
that all his children were illegitimate, although he had married
1806. ^iejr motner after their birth, and he would not have their ille-
gitimacy constantly proclaimed by accepting a peerage. Lord
Ellenborough said " Nothing now remains but for Erskine to
become Chancellor himself " — and he swore a great oath that he
would make a very fair one. With this assurance Fox and
Grenville assented to the appointment, and Erskine, considering
Equity mere play compared to the common law, very readily
acceded to it.
Lord Ellenborough announced his own determination in the
following letter to his brother, the Bishop of Elphin : —
" MY DEAR BROTHER,
" I have not yet the means of communicating any cer-
tain intelligence on the subject of Irish arrangements, or should
have written to you many days ago. I presume that Lord
Redesdale will not retain the Great Seal of Ireland. Public
report gives it to Mr. Ponsonby.
" That of Great Britain was offered me last week by Lord
Grenville and Mr. Fox, but which for several reasons both of
duty, propriety, and prudence I declined. I have had the
honour of being placed in the cabinet without any wish on my
part, and indeed against my wishes — but a sense both of public
and private duty has obliged me to accept a situation for the
present, which I could not have refused without materially dis-
turbing an arrangement which is, I think, necessary for the
public interests at the present moment. I assure you that I
have no motive of ambition or interest inducing me to mix in
politics, and will not suffer myself to bear any part in them
which can trench upon the immediate duties of my judicial
situation. I am aware that I shall incur much obloquy in the
hopes of doing some good, and remain,
" My dear Brother,
" Ever most sincerely and affectionately yours,
" ELLENBOROUGH.
" Bloomsbury Square, Thursday,
February 13, 1806." *
* Earl of Ellenborough's MSS.
LIFE OF LOKD ELLENBOROUGH. 185
it seems strange to us that the incongruity of the positions of
Cabinet Minister and Chief Justice should not have struck " All
the Talents," but in the hurry of the moment no attention was
paid to it by any member of the new Government. The
members of the new Opposition had more leisure and were more
acute. As soon as the list of the Cabinet was published, violent
paragraphs appeared in the newspapers against the unconsti-
tutional conduct of the Whigs, and notices of motion upon the
subject were given in both houses of parliament.
Lord Ellenborough was taken by surprise when this storm
arose, and he was much annoyed by it. Although his seat in
the Cabinet was not to be accompanied with any profit, the
new dignity had considerably tickled his vanity, and he was
really in hopes that he might be of service to the country —
particularly in watching over the Church establishment, and
checking any concession to the Roman Catholics. He was fully
convinced that the objection now started was unfounded, but
he made up his mind that he would not condescend to discuss
the question in parliament, and thus he addressed the Bishop
of Elphin : —
" Bloomsbtiry Square, March 1, 1806.
" MY DEAR BROTHER,
" My entire occupations for some time past at West-
minster and Guildhall have excluded me from the means of
learning any news worth sending you.
11 A question comes on on Monday in both Houses, which is
brought forward under so much misconception of its true merits,
and so much party heat and violence, that I shall not wonder
if it i^ carried. The object of those by whom it is brought
forward is to obtain a vote of censure upon my appointment to
a situation in the Cabinet, on the ground of a supposed incom-
patibility in that situation in his Majesty's councils with my
judicial situation and duties. I think it the more dignified and
becoming course not to attend the House upon the occasion.
If any vote of the kind intended should be carried, it is my
determination to resign my situation as a Privy Councillor ;
with the duties of which I shall consider the vote (if it has any
186 EEIGN OF GEORGE III.
C HAP. meaning at all) as pronouncing ray judicial function as incom-
* patible. The vote, if it comes at all, must be under an entire
A.D. 1806. ignorance or misunderstanding of the history of the country
and the precedents respecting the situation I fill, its proper and
usual duties, and the political duties which the Legislature and
the Sovereign have from time to time in the most anxious and
important periods connected therewith. You will find this dis-
played in the debate by Lord Grenville and Mr. Fox, who are
fully masters of the subject. I have thought it proper to give
you this hint that you may be prepared to expect and to under-
stand the conduct I am determined to adopt.
" Yours, my dear Brother, ever most affectionately,
" ELLENBOROUGH."
When the motions came on, it appeared that there was no
ground for apprehension as to the immediate result, for in the
House of Commons the proposed censure was negatived by a
large majority,* and in the House of Lords it was negatived
without a division.*!- Next morning Lord Ellenborough, before
going into court, despatched the following letter to his brother : —
" 8 o'clock, Friday morning, March 5, 1806,
Bloomsbury Square.
" MY DEAR BROTHER,
" The result of the motion of last night on my subject in
the Lords was that it was negatived without a division. I
thought it most becoming my situation and character not to be
present.
" In the Commons it was negatived by a majority of 222 to
64, at | past one this morning. I have not yet heard any
further particulars. I should be glad to see the debate. I am
sure that Lord Grenville and Mr. Fox were perfectly masters
of this question in all its bearings, and have no doubt they
would discuss it most ably. I am hastening to discharge my
daily duties in Court, and can add no more than that I am,
" My dear Brother,
" Ever most affectionately yours,
" ELLENBOROUGH."
* 4 Pail. Deb. 284. f Ib. 541.
LIFE OF LORD ELLENBOROUGH. 187
On his arrival at Guildhall he received the following letter
from Lord Chancellor Erskine : —
A.D. 1806.
" MY DEAR LORD,
" You have been amply rewarded for the firmness with
which you resisted the private applications on the subject of
your seat in the Cabinet by what passed last night. In our
House everything was to your honour ; and indeed, though there
was a great deal of excellent speaking, there was no debate ; at
least nothing which could be called so, because, after their
batteries were completely silenced, they were under the fire of
Lord Holland and Lord Grenville for near two hours, so that,
before I put the question, I had only to say that the objection
was dead and buried ; and, as Lord Eldon had in his speech
said that he still hoped your Lordship would withdraw from the
Cabinet, I begged to hope in my turn that Lord Bristol, after
what he had heard, and which it was impossible he could have
been acquainted with, would withdraw his motion. Lord Bristol
made no answer. Nothing more was said, and on the question
being put, there was nothing that had even the aspect of a
division. I hardly heard a voice. David says that in the
Commons Fox and Sheridan were most admirable, — and the
nakedness of the land appeared in their division of 64. I was
quite delighted with the result, because I am sure the whole has
originated in spleen, and the people have been made a mere
stalking-horse for those who have for ever been their oppressors.
" Your Lordship's most faithful and sincere
" ERSKINE.
" Tuesday morning."
But it appears to me that the argument was all on the
losing side. That the letter of the law does not recognize
the Cabinet as distinguished from the Privy Council is true ;
but in the practical working of the constitution the Cabinet
has been long known as a separate defined body in whom,
under the Sovereign, the executive government of the country
is vested, and the names of the members of it have been
as notorious as the names of the Lord Chancellor, or the First
188 REIGN OF GEORGE III.
Lord of the Treasury, or the Secretaries of State, for the time
being. Without this body the monarchy could not now subsist,
and any writer describing our polity would point it out as one of
the most important institutions in the state. To say therefore that
whoever may without impropriety be sworn of the Privy Council,
may without impropriety be introduced into the Cabinet, is a
mere quibble wholly unworthy of Mr. Fox and Lord Grenville.
Their concession that the Chief Justice should absent himself
from the Cabinet when the expediency of commencing prosecu-
tions for treason or sedition was to be discussed, is decisive
against them, and they did not attempt to answer the observation
that the circumstance of the Chief Justice being a member of
the Cabinet, however pure his conduct might be, was sure to
bring suspicion upon the administration of justice before him in
all cases connected with politics. The mischief is not confined
to the period when he actually continues a Cabinet minister ; for
when his party is driven from power, although all his colleagues
are deprived of their offices, he still presides in the Court of King's
Bench, and there is much danger that in Government prosecu-
tions he will be charged with being actuated by spite to his
political opponents. As to the fact of the Chief Justice having
been a member of a council of regency, the precedents might as
well have been cited of Chief Justices in the King's absence
governing the realm, and deciding causes in the AULA REGIS. The
only real precedent was that of Lord Mansfield from 1757 to
1765, and that was strongly condemned at the time by Lord
Shelburne and other great statesmen. The resolution to keep
Lord Chief Justice Ellenborough in the Cabinet gave a dan-
gerous shake to the new Government ; and public opinion being
so strong against it, the advantage expected from it was not
enjoyed, for, from a dread of injuring his judicial reputation, he
took little part in debate, and remained silent on occasions when,
professing to be an independent peer, he might legitimately
have rendered powerful help to the Government. It is said that
Lord Ellenborough himself ere long changed his opinion, and to
LIFE OF LORD ELLENBOKOUGH. 189
his intimate friends expressed deep regret that he had ever been
prevailed upon to enter the Cabinet.*
While the " Talents " remained in office the only Government
measure on which the Lord Chief Justice spoke in the House of
Lords was the Bill for abolishing the Slave Trade ; and of his
* The following letters, which passed at the time between Lord Ellenbo rough
and Mr. Perceval, then beginning to take the lead of the Tory party, have been
communicated to me. Considering the eminence of the writers and the per-
manent interest of the subject, I think it right that they should bo preserved.
MR. PERCEVAL TO LORD ELLENBOROUGH.
" Mr DEAR LORD,
" I believe Mr. Spencer Stanhope will certainly give notice tomorrow in
the House of Commons of his intention to submit some motion to the House on
the subject of your Lordship's situation in the Cabinet. Feeling as I do upon
the subject, and convinced as I am after a great deal of reflection upon it, that
the propriety of the appointment cannot be maintained in argument, I should
think that I acted unkindly, if not treacherously, by you (especially as with
these feelings I shall be obliged to take a part myself in the debate upon this
motion), if I did not once more, with great earnestness, recommend to you the ,
expediency of reconsidering the subject, and of retiring willingly in deference to
the public sentiment from the situation in question. I advise it the more
readily, because I am sure you do not covet the situation yourself, and that you
are risking your own character, which is too important a public possession to
be risked lightly, out of deference to the opinions and feelings and wishes of
others, rather than your own. And however unpleasant it may be either to you
or your friends to take a step which apparently acknowledges that you have
fallen into an error ; yet, as you may depend upon it, it will come to this at last,
or else raise a ferment of which at present you have no conception, and in
which your new friends will leave you to yourself; it must be clearly less
unpleasant to you, when the implied acknowledgment will amount to no more
than that you have committed an error, into which under the circumstances
any person might very naturally have fallen, than to wait till the time when
this implied acknowledgment will not only be that you have committed an
error, but that you have tried to persevere in it after it was pointed out to you,
and against, if not the force of argument, at least the weight of public opinion.
Your friends who advise you against the step which I now recommend, cannot,
I am certain, see this subject in all its bearings or they could not, as your friends,
so advise you. You and they both, living perhaps encircled a good deal by your
own friends (who borrow their impressions upon such subjects in great measure
from yourselves, and do little more than reflect back upon you your own
opinions), do not come in contact with the opinion of the public. It requires
some effort, as I feel at this moment, to communicate an unwelcome truth, and
therefore few people will have the hardihood to tell you how apparently
unanimous the public opinion is against the Government on this point. The
confidence and kindness with which you have uniformly favoured me, have
drawn from me this frank exposure of my sentiments. I trust you are not
offended at it. As far as party feeling against the Government could go, I
assure you I should covet the discussion. And I cannot trace in my own mind
any improper bias which actuates me, unless indeed the disinclination which I
190 EEIGN OF GEOKGE III.
CHAP, speech on this occasion, which seems to have been elaborate and
<— i- — ' eloquent, the following is the only record extant : —
" Lord Ellenborough supported the bill in a variety of argu-
feel to be forced into a situation where my duty will oblige me to take a part in
a debate, possibly unpleasant to your feelings, maybe deemed an improper bias.
" I am, my dear Lord,
" Yours most truly and faithfully,
" Lincoln's Inn Fields, Feb. 23, 1806." " SP. PERCEVAL.
LORD ELLENBOROUGH TO MR. PERCEVAL.
"My DEAR SIR,
" I should not truly state my own feelings upon the occasion, if I did not
say that I received on many accounts very great pain from the perusal of your
letter.
" You will no doubt conscientiously pursue your own line of conduct. I have
only to request that you will have the charity to suppose that I am equally
guided by principles of duty, when I declare my intention of abiding and con-
forming to the sense which Parliament may think fit to express on my subject.
I would, as you advise me to do, retire in deference to the public sentiment, if I
was perfectly satisfied that the sentiment of the unprejudiced part of the public
did not accord with my own — but I am yet to learn that the judgment of those
who consider the question without party bias is against me, and am wholly at a
loss to discover what duties, in respect of advice to the Crown, are cast upon me
in the character of what is called a Cabinet Councillor which do not already
attach upon me as a Member of the Privy Council, under the oath I have taken
in case his Majesty should think fit to require my advice as a Privy Councillor
(as he has often done that of others) upon subjects relative to the executive
Government of the country. However, as you tell me you are ' convinced that
the propriety of the appointment cannot be maintained in argument,' I will
forbear to waste your time or my own in unavailing discussions, and remain,
with thanks for the frankness and explicitness of your communication, and a
strong sense of former kindness, very sincerely yours,
" ELLENBOROUGH."
MR. PERCEVAL TO LORD ELLENBOROUGH.
" Lincoln's Inn Fields,
Monday evening, Feb. 24.
" MY DEAR LORD,
" I cannot possibly permit the letter which I received from you this
morning, to be the last which should pass between us upon the subject to which
it relates. I cannot fail to perceive that you are much offended by my former
letter ; and I must endeavour to remove, as far as I can, the grounds for that
offence, which any objectionable expressions in it may have afforded. If there
is any one word in it which intimates or insinuates the slightest or most distant
suspicion that you will not act, or have not acted, upon this occasion, as upon
all others, upon what you conceive to be the true principles of duty, or which
conveys the least ground for your thinking it necessary to request that I would
LIFE OP LORD ELLENBOROTJGH. 191
merits, and, adverting to the speech of a noble and learned
Lord (Eldon), expressed his astonishment that any noble Lord
who had supported and approved of the same measure, in the
shape of an order of council, should oppose this bill, unless it
have the charity to suppose that you would act upon such principles, I can only
say that I have been most unfortunate in the language which I have used, and
have conveyed a sentiment directly the reverse of what I felt, as well as of what
I intended to convey. From some expressions of my letter, which you repeat,
underlined, I fear that in expressing strongly what I strongly felt, I have used
language which you have thought disrespectful ; if I have done so, I am
extremely sorry for it, and ask your pardon most readily for the manner in which
I have executed my purpose. But for the matter of it, I am so conscious that I
never acted by you or anybody under a more sincere impression of personal
regard, than in writing that letter, that though I must be sorry for my failure, I
should even now reproach myself if I had not sent it.
" When I referred to the sentiments of the public being against the Govern-
ment upon this question, I ought certainly to have been aware that nothing is
more difficult than to collect with any accuracy the public opinion. But I did
BO refer to them because I had conversed with, and collected the sentiments of,
many persons wholly unconnected with party, of different descriptions, some of
them members of our own profession (whose judgments form no unimportant
criterion), and also of several persons friendly to the present Government, and I
have not met with a single one who has doubted of the impropriety of the
appointment. You say ' that you are yet to learn that the judgment of persons
who consider the question without party bias, is against you.' I fully believe
that you are so, and it was my belief of this which is my only justification for
troubling you with my letter. Your situation is so elevated that you have no
chance of obtaining information upon such a subject, unless some real friend
will, as I have done, risk, with the hope of serving you, the chance of offending.
I have exposed myself to that chance and I fear have been unfortunate. Even
now I doubt whether you distinguish between the illegality, which you cer-
tainly may strongly contest, and the impropriety of this appointment, its
inexpediency, its tendency to diminish (not the true upright and independent
administration of justice, for in your instance I am sure that will never be),
but the satisfactory administration of it in the opinion, or, if you please, the
prejudices of the people. It was this impropriety that I stated (in terms
which I wish I had not used because they offended you) could not be main-
tained in argument. I will however trouble you no further, and should be
ashamed of having troubled you so long, but for the concluding sentence of
your note, in which, in expressing a strong sense of my former kindness, you
too plainly imply that in this instance you suppose me to have departed from
it. And I thought it but due to that kindness and friendship which I wished
still to retain, or recover, not to spare myself any trouble in endeavouring to
remove as far as I can the unfavourable impression you have received. I
hardly know how to hope that, under the immediate effect of present impres-
sions, your opinion of my former letter can be changed. I hope however you
will do me the favour to keep what I have written, and if when temporary
feelings may have passed by, you will fairly ask yourself what possible motive
I could have had to have written an unpleasant letter to you on this or on any
other subject, except that wliich I profess, I think you will be convinced that
192
KEIGN OF GEOEGE III.
A.D. 1806.
Impeach-
ment of
Lord Mel-
ville.
was that they proceeded from different men. The ex-Chancellor
and the Chief Justice thereupon got into a sharp altercation,
which was put an end to by Lord Lauderdale requiring the
clerk at the table to read the Standing Order against taxing
speeches" *
Lord Ellenborough regularly attended the trial of Lord Mel-
ville, and as to the 2nd, 3rd, 5th, 6th, 7th, and 8th Articles, lay-
ing his hand on his breast, said with great emphasis and solemnity,
" GUILTY, UPON MY HONOUR." The acquittal of the noble Vis-
count upon the 2nd Article, charging him with having connived
at the improper drawing of money by Mr. Trotter, without
alleging that he himself derived any profit from the money so
drawn, showed that impeachment can no longer be relied upon
for the conviction of state offences, and can only be considered
a test of party strength. Almost all good Tories said NOT
you can find no trace of any intentional departure from the most friendly
kindness and good will in anything I have done.
" I am, my dear Lord,
" Very sincerely yours,
" Tuesday morning." " SP. PERCEVAL.
LORD ELLENBOROUGH TO MR. PERCEVAL.
" MY DEAR SIR,
" I received your letter this morning as I was setting out for Guildhall, or
would have immediately thanked you for the kind terms in which it is written
and the friendly spirit it breathes. Nothing will give me I assure you more
pain than that events should occasion an interruption of that confidence and
regard between us from which I had long derived so much satisfaction, and
which I had once hoped would endure as long as we both live. I cannot but
acknowledge that the admonitions to retire and some other expressions in your
letter appeared to me of an harsher tone and temper than you would, I thought,
on consideration have been pleased with yourself or have adopted in any com-
munication with me, but they excited more of sorrow than anger in my mind.
Upon the principal question between us I forbear to say one word — in the
position in which it at present stands it cannot be further touched by either of
us with any degree of delicacy.
" I remain, with a sincere regard for your character and conduct which I feel
neither time nor events ever can efi'ace,
" Most faithfully yours,
" ELLENBOROUGH."
* Parl. Deb. vol. vii., p. 234.
LIFE OF LOKD ELLENBOKOUGH. 193
GUILTY, and the independent course taken by Lord Ellenbo-
rough very much raised him in public estimation.*
The following letter shows that he acted cordially with Mr. AJ>- 1806-
Fox, and was confidentially consulted by that great statesman
in the attempt then made to bring about a pacification with
Napoleon contrary to the wishes of the King : —
" Secret and Confidential.
" Many thanks to you, my dear Lord, for your note. The
argument is quite satisfactory, and I should hope Holland
would not be a point on which there would be much difficulty.
I have heard something to-day which makes me apprehend that
internal difficulties, and those from the highest quarter, will be
the greatest. I hope nothing will prevent your attending,
Monday, at eleven, for a consultation of greater importance in
all its consequences never did nor never can occur. Shall we
shut the door for ever to peace with France ? Shall we admit
that a council and ministers are nothing ? that the opinion of
the K. is everything, from what suggestions soever he may have
formed that opinion? These are questions of some moment.
Let us act honourably and fairly (in as conciliating a manner as
possible, I agree). We may be foiled, the country may be
ruined, but we cannot be dishonoured. I am, with great regard,
my dear Lord,
" Yours ever,
" St. Anne's Hill, Saturday evening." " C. J. r OX.
On the death of Mr. Fox Lord Ellenborough continued a Dismissal of
cabinet minister, under Lord Grenville, till the entire dissolution Talents."
of the government of All the Talents. Notwithstanding his March,
objection to Roman Catholics sitting in Parliament, he had given
his consent in the Cabinet to the little bill (which produced such
great effects) for permitting Roman Catholics to hold the rank
of field officers in the army ; but when the rupture actually took
place his sympathies were with the King, and he declared it to
be not unreasonable or unconstitutional that the King's ministers
should be required to pledge themselves to propose no farther
* 29 St. Tr. 549-1482.
VOL. Ill, 0
194 KEIGN OF GEOEGE III.
concessions to the Roman Catholics.* However, the Chief
Justice parted on good terms with Lord Grenville, who gave
him the following testimony to his honourable conduct while
they had acted together in the Cabinet : —
" MY DEAR LORD, " Downing Street, March 13, 1807.
" The matter which has of late occupied our attention is
now brought to a state which appears to leave no possibility of
the further continuance of the Government. Although I have
the misfortune of differing from your Lordship on the expediency
of the measures which have been in question, yet the frank and
honourable conduct which has at all times marked every part of
the share which you have taken in the deliberations and measures
of the Government while it subsisted, makes me extremely anxious
to have, if possible, the satisfaction of conversing with you to-
morrow morning, previous to my going to the Queen's house, in
order that I may have the opportunity of stating to you the
course which we have taken during the last two days, and the
grounds on which we have acted.
" Whatever be the course of the events to which these trans-
actions may lead, I shall ever retain a strong sense of the con-
duct which you have held on all occasions during the time that
we have acted together, and a sincere respect for your character.
" I have the honour to be, my dear Lord,
" Most truly and faithfully,
" Your most obedient humble servant,
" GRENVILLE."
* Lord Ellenborough had once looked favourably on the claims of the Irish
Roman Catholics, but had become much afraid of them by the representations
of his brother, the Bishop of Elphin, who had been exposed to serious perils
in the Irish Rebellion of 1798, in which he displayed great gallantry.
When Lord Comwallis during the insurrection was riding with his staff at
the head of a column in march, the first object he saw through the haze one
morning was the Bishop on horseback coming to join him with a sword by his
side, and pistols in his holsters. This same Bishop carried off in his carriage
from his own door a country neighbour, who he heard was to join the rebels
the next day, — and drove him 20 miles into Dublin. He had induced him to
enter by courteously offering him a lift, but the moment the door of the car-
riage was closed upon his friend, he collared him and told him he was hia
prisoner, and the coachman, having his orders, whipped his horses into a
gallop. — The Bishop had all the qualities of a Christian pastor, but it was
thought that, if in the law, he would have made a still better Chief Justice
than his brother Edward, although it is rather doubtful whether Edward in
the church would have displayed the mild virtues expected in a Bishop.
LIFE OF LORD ELLENBOROUGH. 195
Henceforth, Lord Ellenborough, estranging himself entirely
from the Whigs, entered into a still closer alliance with Lord
Sidmouth, and, till his friend and patron again returned to A'D'
office under Lord Liverpool, joined the small Addingtonian op-
position in the House of Lords.
Accordingly, on the motion for the restoration of the Danish Feb. 18.
Fleet, he declared " that in his opinion there was no act that
had ever been committed by the Government of this country sPeech on
' * the restora-
which so much disgraced its character and stained its honour tion of the
as the expedition to Copenhagen ; as an Englishman he felt dis- ft*™
honoured whenever the national honour was tarnished ; the ex-
pedition reminded him of
' — — the ill-omen'd bark
Built in th' eclipse, and rigg'd with curses dark.'
He thought the object it had in view was most unjustifiable,
and that even the success of that object would bring great cala-
mity upon the country. When necessity was pleaded, noble
Lords should recollect that this plea rested on an overwhelming
inevitable urgency to do a particular act — not on mere predo-
minating convenience. Many persons considered it justification
enough that it might be very convenient for the country in this
instance to apply to its own use what belonged in full property
to another. This doctrine he was so much in the habit of
reprobating at the Old Bailey that he could not help expressing
himself with some warmth when he found it set up and acted
upon by their Lordships."
Having defended the Bill by which the Attorney-General His alterca-
was empowered to hold to bail in cases prosecuted by him, and LorYs'tan-
Earl Stanhope having said that such language might have been hope*
expected from Jeffreys or Scroggs, Lord Ellenborough thus
retorted :
" My Lords, from my station as Chief Justice of England I
am entitled to some degree of respect ; but I have been grossly
calumniated by a member of this House, who has compared me
* 10 Parl. Deb. 655.
o 2
196 REIGN OF GEOEGE III.
to monsters who in former reigns disgraced the seat of justice —
such as Scroggs and Jeffreys. I shall treat the calumny and
A.D. 1808. tne caiumniator with contempt."
Earl Stanhope.—" I meant no such comparison, and if the
noble and learned Lord from intimate acquaintance has found
a resemblance, this must be one of his singularities ; but his
rash precipitancy in misapplying what fell from me, convinces
me that it might be dangerous to delegate the power created by
the Bill even to the noble and learned Lord." *
The Bill passed, but, being most unnecessary and most odious,
it was not acted upon by any Attorney-General, not even by
Sir Vicary Gibbs, its author, who, by his oppressive multiplica-
tion of ex-officio informations, brought himself and his office into
sad disrepute.
Feb. 1810. One of these informations which excited much interest was
filed against Mr. Perry, the proprietor of the ' Morning
Chronicle/ He was a gentleman of considerable talents and
high honour, who did much to raise to respectability and dis-
tinction the profession of a journalist in this country. He
abstained from all attacks on private character ; he was never
influenced by any mercenary motive ; and his paper, although
strongly opposed to the Tory Government, steadily adhered
to true constitutional principles. An article in the ' Morning
Chronicle,' after calmly discussing the Catholic question, thus
concluded : " What a crowd of blessings rush upon one's mind
that might be bestowed upon the country in the event of a total
change of system ! Of all monarchs indeed since the Revolu-
tion, the successor of George III. will have the finest oppor-
tunity of becoming nobly popular."
Sir Vicary's information alleged that the defendant " being a
malicious, seditious, and evil-disposed person, and being greatly
disaffected to our Sovereign Lord the King and to his admi-
nistration of the government of this kingdom, and most un-
lawfully, wickedly, and maliciously designing, as much as in
him lay, to bring our said Lord the King, and his administra-
* 11 Parl. Deb. 710.
LIFE OF LOKD ELLENBOROUGH. 197
tion of the government of this kingdom, and the persons em-
ployed by him in the administration of the government of this
kingdom into great and public hatred and contempt among all A<D> 1{
his liege subjects, and to alienate and withdraw from our said
Lord the King the cordial love and affection, true and due
obedience, fidelity and allegiance of the subjects of our said
Lord the King, did print and publish a certain scandalous,
malicious, and seditious libel " [setting out the words which I
have copied].
Mr. Perry appeared as his own counsel, and defended him-
self with singular modesty, tact, and eloquence.
At his request the following paragraph was allowed to be
read from the same newspaper :
" The Prince has thought it his duty to express to his Majesty
his firm and unalterable determination to preserve the same
course of neutrality which he has maintained, and which, from
every feeling of dutiful attachment to his Majesty's person, from
his reverence of the virtues and from his confidence in the
wisdom and solicitude of his Royal Father for the happiness of
his people, he is sensible ought to be the course that he should
pursue."
Lord Ellenborough, in summing up to the Jury, after com-
menting upon the weight to be given to this paragraph, thus
proceeded :
" The next and most important question is, what is the fair,
honest, candid construction to be put upon the words standing
by themselves. Is the passage set out in the information per se
libellous ? The first sentence easily admits of an innocent in-
terpretation. * What a crowd of blessings rush upon one's
mind that might be bestowed upon the country in the event of
a total change of system ! ' The fair meaning of the expres-
sion, ' change of system/ I think is a change of political system
— not a change in the frame of the established government —
but in the measures of policy which have been for some time
pursued. By * total change of system ' is certainly not meant
198 EEIGN OF GEORGE III.
subversion or demolition, for the descent of the crown to the
successor of his Majesty is mentioned immediately after. The
A.D. i8io. wrif.er g0es on to Speak of ^ne blessings that may be enjoyed
upon the accession of the Prince of Wales ; and therefore
cannot be understood to allude to a change inconsistent with
the full vigour of the monarchical part of the constitution.
Now I do not know that merely saying, there would be bless-
ings from a change of system, without reference to the period at
which they may be expected, is expressing a wish or a sentiment
that may not be innocently expressed in reviewing the political
condition of the country. The information' treats this as a
libel on the person of his Majesty, and his personal administra-
tion of the government of the country. But there may be error
in the present system, without any vicious motives, and with the
greatest virtues, on the part of the reigning Sovereign. He may
be misled by the ministers he employs, and a change of system
may be desirable from their faults. He may himself, notwith-
standing the utmost solicitude for the happiness of his people,
take an erroneous view of some great question of policy, either
foreign or domestic. I know but of ONE BEING to whom error
may not be imputed. If a person who admits the wisdom and the
virtues of his Majesty, laments that in the exercise of these he
has taken an unfortunate and erroneous view of the interests of
his dominions, I am not prepared to say that this tends to de-
grade his Majesty, or to alienate the affections of his subjects.
I am not prepared to say that this is libellous. But it must be
with perfect decency and respect, and without any imputation of
bad motives. Go one step farther, and say or insinuate, that
his Majesty acts from any partial or corrupt view, or with an
intention to favour or oppress any individual or class of men,
and it would become most libellous. However, merely to re-
present that an erroneous system of government obtains under
his Majesty's reign, I am not prepared to say exceeds the free-
dom of discussion on political subjects which the law permits.
Then comes the next sentence : ' Of all monarchs, indeed, since
the Revolution, the successor of George the Third will have the
LIFE OF LORD ELLENBOROUGH. 199
finest opportunity of becoming nobly popular.' This is more
equivocal; and it will be for you, gentlemen of the Jury, to
determine what is the fair import of the words employed. A'D* 1£
Formerly it was the practice to say, that words were to be taken
in the more lenient sense : but that doctrine is now exploded ;
they are not to be taken in the more lenient or more severe
sense ; but in the sense which fairly belongs to them, and which
they were intended to convey. Now, do these words mean
that his Majesty is actuated by improper motives, or that his
successor may render himself nobly popular by taking a more
lively interest in the welfare of his subjects ? Such sentiments,
as it would be most mischievous, so it would be most criminal
to propagate. But if the passage only means that his Majesty
during his reign, or any length of time, may have taken an
imperfect view of the interests of the country, either respecting
our foreign relations, or the system of our internal policy, if it
imputes nothing but honest error, without moral blame, I am
not prepared to say that it is a libel. The extract, read at the
request of the defendants, does seem to me too remote in point
of situation in the newspaper to have any material bearing on
the paragraph in question. If it had formed a part of the same
discussion, it must certainly have tended strongly to show the
innocence of the whole. It speaks of that which every body in
his Majesty's dominions knows, his Majesty's solicitude for the
happiness of his people ; and it expresses a respectful regard
for his paternal virtues. What connexion it has with the
passage set out in the information, it is for you to determine.
Taking that passage substantively and by itself, it is a matter,
I think, somewhat doubtful, whether the writer meant to
calumniate the person and character of our august Sovereign.
If you are satisfied that this was his intention by the application
of your understandings honestly and fairly to the words com-
plained of, and you think they cannot properly be interpreted
by the extract which has been read from the same paper, you
will find the defendants guilty. But if, looking at the obnoxious
paragraph by itself, you are persuaded that it betrays no such
200 KEIGN OF GEORGE III.
or if> feeling yourselves warranted to import into your
consideration of it a passage connected with the subject, though
A.D. 1810. considera|3iy distant in place and disjoined hy other matter, you
infer from that connexion that this was written without any pur-
pose to calumniate the personal government of his Majesty, and
render it odious to his people, you will find the defendants not
guilty. The question of intention is for your consideration.
You will not distort the words, but give them their application
and meaning as they impress your minds. What appears to me
most material, is the substantive paragraph itself; and if you
consider it as meant to represent that the reign of his Majesty is
the only thing interposed between the subjects of this country
and the possession of great blessings, which are likely to be en-
joyed in the reign of his successor, and thus to render his Ma-
jesty's administration of his government odious, it is a calumnious
paragraph, and to be dealt with as a libel. If, on the contrary,
you do not see that it means distinctly, according to your rea-
soning, to impute any purposed mal-administration to his Ma-
jesty, or those acting under him, but may be fairly construed as
an expression of regret that an erroneous view has been taken
of public affairs, I am not prepared to say that it is a libel.
There have been errors in the administration of the most en-
lightened men. I will take the instance of a man who for a
time administered the concerns of this country with great ability,
although he gained his elevation with great crime — I mean Oliver
Cromwell We are at this moment suffering from a most
erroneous principle of his government in turning the balance of
power against the Spanish monarchy in favour of the House of
Bourbon. He thereby laid the foundation of that ascendency
which, unfortunately for all mankind, France has since obtained
in the affairs of Europe. The greatest monarchs who have ever
reigned — monarchs who have felt the most anxious solicitude
for the welfare of their country, and who have in some respects
been the authors of the highest blessings to their subjects, have
erred. But could a simple expression of regret for any error
they had committed, or an earnest wish to see that error cor-
LIFE OF LORD ELLENBOROUGH. 201
rected, be considered as disparaging them, or tending to en-
danger their government ? Gentlemen, with these directions
the whole subject is for your consideration. Apply your minds
candidly and uprightly to the meaning of the passage in ques-
tion; distort no part of it for one purpose or another; and
let your verdict be the result of your fair and deliberate judg-
ment."
The defendant was acquitted.* As soon as the foreman of
the jury had pronounced the verdict, Sir Vicary Gibbs, the
Attorney-General, turning round to me, said, " We shall never
get another verdict for the Crown while the Chief Justice is in
opposition." His Lordship certainly since the dissolution of
the Talents Administration had kept up an intimacy with
Addington and the Grenvilles, but it was a mere piece of Mr.
Attorney's spleen to suppose that the Judge was actuated by
any desire to mortify the existing Government, although the pos-
sibility of such a suspicion is argument enough against a Chief
Justice of the King's Bench ever being a member of any
Cabinet.
Lord Ellenborough had a violent hatred of libellers, and
generally animadverted upon them with much severity. He
soon after did his best to convict Leigh Hunt, then the editor of A.D. isil.
the EXAMINER, upon an ex-qfficio information for publishing an
article against the excess to which the punishment of flagellation
had been carried in the army : —
" Gentlemen," said he to the jury, " we are placed in a most
anxious and awful situation. The liberty of the country — every-
thing that we enjoy — not only the independence of the nation,
but whatever each individual among us prizes in private life,
depends upon our fortunate resistance to the arms of Buonaparte
and the force of France, which I may say is the force of all
Europe combined under that formidable foe. It becomes us,
therefore, to see that there is not in addition to the prostrate
thrones of Europe an auxiliary within this country, and that he
* 31 St. Tr. 335 ; 2 Campb. 398.
202 EEIGN OF GEOKGE III.
^as no* ^e a^ ^or *^e furtnerance °f his object of a British
press. It is for you, between the public on the one hand, and
A.D. 1811. tjie gukjegt on the other, to see that such a calamity does not
overwhelm us. Is this the way of temperate discussion ? The
first thing that strikes us is this ONE THOUSAND LASHES in large
letters. What is this but to portray the punishment as a cir-
cumstance of horror, and excite feelings of detestation against
those who had inflicted and compassion for those who had
suffered it? Then he goes into an irritating enumeration of
the miseries which do arise from the punishment, and which do
harrow up the feelings of men who consider them in detail.
This punishment is an evil which has subsisted in the eyes of
the legislature and of that honourable body who constitute the
officers of the army, and it has not been remedied. If there
are persons who really feel for the private soldier, why not
remedy the evil by private representation ? * But when, as at
this moment, everything depends on the zeal and fidelity of the
soldier, can you conceive that the exclamation ONE THOUSAND
LASHES, with strokes underneath to attract attention, could be
for any other purpose than to excite disaffection ? Can it have
any other tendency than that of preventing men from entering
into the army ? Can you doubt that it is a means intended to
promote the end it is calculated to produce ? If its object be to
discourage the soldiery, I hope it will be unavailing. These
men who are represented as being treated ignominiously have
presented a front — and successfully — to every enemy against
which they have been opposed. On what occasion do you find
the soldiery of Great Britain unmanned by the effect of our
military code ? This publication is not to draw the attention
of the legislature or of persons in authority with a view to a
remedy, but seems intended to induce the military to consider
themselves as more degraded than any other soldiers in the
world — and to make them less ready at this awful crisis to
* This reminds one of the Emperor Alexander's observation when he visited
England in 1815, that " he thought the English ' Opposition ' a very useful
institution, but he rather wondered why they did not convey their remonstrances
to the King's Ministers in private."
LIFE OF LORD ELLENBOROUGH. 203
render the country that assistance without which we are col- CHAP,
lectively and individually undone. I have no doubt that this ' » T
libel has been published with the intention imputed to it, and A'D' u
that it is entitled to the character given to it by the information."*
Nevertheless, to the unspeakable mortification of the noble
Judge, the jury found a verdict of Not Guilty. \
Such scandal was excited by the mode in which Government March 4.
prosecutions for libel were now instituted and conducted, that
Lord Holland brought the subject before the House of Lords,
and, after a long speech, in which he complained of the power
of the Attorney-General to file criminal informations, and the
manner in which it had recently been abused, moved for a
return of all informations ex-qfficio for libel from 1st January,
1801, to 31st December, 1810.
Lord Ellenborougfi : "The motion of the*noble Baron includes
the period during which so humble an individual as myself had
the honour of filling the office of Attorney-General. Whether
he means to refer to my conduct I know not — but as he made
no allusion to it, I do not think myself bound to defend what
has not been attacked ; but I must say with reference to the
learned gentlemen who succeeded me, that their discharge of
their public duty ought not lightly or captiously to be censured
nor made the subject of invidious investigation on grounds of
hazardous conjecture. The law of informations ex-officio is the
law of the land, resting on the same authority with the rights
and privileges which we most dearly prize. It is as much law
as that which gives the noble Lord the right of speaking in
this House ; it is as much law as the law which puts the crown
of this realm on the brow of the Sovereign. If the noble Lord
* This was manifestly usurping the functions of the Jury as to matter of
fact ; but it was then erroneously supposed to be in conformity to the power
given by Fox's Libel Act, which is merely for the Judge to deliver his opinion
on matter of law as in other cases.
t 31 St. Tr. 367. This acquittal was mainly produced by the eloquence of
Mr. Brougham ; but in spite of all his efforts another client was convicted at
Lincoln before Baron Wood, for publishing the same libel in a country news-
paper. Kex v. Drakard, 31 St. Tr. 495.
204 KEIGN OF GEORGE III.
C HAP. questions the expediency of the law of informations, why not
' » ' propose that it be repealed? This would be the direct and
A.D. isii. maniv COT1rse. I deprecate in this House violent and vague
declamations. [Hear! hear! from Lord Holland.] I am
aware to what I subject myself. The noble Lord may call all
that I have said a mere tirade. [Hear! hear! from Lord
Holland.] I am used to tumults and alarms — they never yet
could put me down. Were I to die next moment, I will not
yield to violence. My abhorrence of the licentiousness of the
press is founded on my love of civil liberty. The most certain
mode of upsetting our free constitution is by generating a
groundless distrust of the great officers of justice, and teaching
the people to despise the law along with those who administer it.
I repeat that I know nothing more mischievous in its tendency
than inoculating the public mind with groundless apprehensions
of imaginary evils."
The violence of this language called forth considerable
animadversion from several noble Lords. Lord Stanhope de-
clared that he was afraid of entering into any controversy with
the " vituperative Chief Justice " — justifying himself by the
example of a peer celebrated for his politeness, of whom he told
this anecdote : Lord Chesterfield, when walking in the street,
being pushed off the flags by an impudent fellow, who said to
him, " I never give the wall to a scoundrel," the great master
of courtesy immediately took off his hat, and, making him a
low bow, replied, " Sir, I always do." *
Lord Holland : " The noble and learned Chief Justice has
complained of the vehemence and passion with which I have
delivered myself ; but he should have had the charity to recollect
that I have not the advantage of those judicial habits from
which he has profited so much. The practice of the duties of
the highest criminal judge and the exercise of temper which
those duties require can alone bring the feelings of men to a
perfect state of discipline, and produce even in the delivery of
* 19 Parl. Deb. 129-174.
LIFE OF LORD ELLENBOROUGH. 205
the strongest opinions the dignified and dispassionate tone which
ever adds grace to the noble and learned Lord's oratorical
efforts, and has so signally marked his demeanour in this night's A'D*
debate."
Sir James Mackintosh, who was present at this debate, in
giving an account of it, says : — " I was much delighted with the
ingenious, temperate, and elegant speech of Lord Holland on
the abominable multiplication of criminal informations for libels,
and much disgusted with the dogmatism of Lord Ellenborough's
answer. Lord Holland spoke with the calm dignity of a magis-
trate, and Lord Ellenborough with the coarse violence of a
demagogue." *
The Chief Justice's next remarkable appearance in the March 22,
House of Lords was in a discussion respecting the " Delicate Lord'Ellen-
Investigation." While he was in the Cabinet in 1806 a com- borough
f and the
mission had been addressed to him and several others by "DELICATE
George III. to inquire into certain charges brought forward TION."
against the Princess of Wales. After examining many wit-
nesses, they presented a report acquitting her of conjugal in-
fidelity, but stating that she had been guilty of great levity of
conduct, and recommending that she should be admonished
to conduct herself more circumspectly in future, t These
animadversions excited the deep resentment of her Royal
Highness and her friends, and were complained of in various
publications and speeches, which asserted that the secret in-
quiry before the Commissioners had been carried on unfairly,
that improper questions had been put, and that the evidence had
not been correctly taken down. Without making any motion,
* Life of Mackintosh.
f I have seen the original draught of the Report in Lord Ellenborough's
handwriting, and the draught of a second very elaborate Report by him
upon a communication to the Commissioners from the King. After a very
long commentary on the evidence of the witnesses, the Commissioners say that
" there are no sufficient grounds for bringing Her Royal Highness to trial for
adultery ; but that she had comported herself in a manner highly unbecoming
her rank and her character." Lord Ellenborough appears throughout the
whole affair to have taken infinite pains to get at the truth, and to have been
actuated by a most earnest desire to do impartial justice to all parties.
206 REIGN OF GEORGE III.
or giving any notice, the noble and learned Lord rose in his
place, and thus addressed his brother Peers : —
A.D. 1813.
" My Lords, various considerations have at different moments
operated upon my mind to induce me to forbear the execution
of a task which now, after the most mature and deliberate con-
sideration, I am compelled to perform as a duty that I owe to
my own character and honour, as well as to the character and
honour of those who were joined with me in a most important
investigation. The first of these considerations was a con-
sciousness of rectitude, I hope not presumptuously indulged,
which made me backward in noticing the slanderous produc-
tions recently circulated against the conduct of individuals em-
ployed in situations of the highest trust. To have betrayed an
anxious irritability of feeling would have appeared to imply an
acknowledgment of imperfection among those who have faith-
fully discharged an arduous and painful duty. There are cases
where a sufficient vindication may be found in the candid judg-
ment of mankind, where opportunities of forming an opinion
not very erroneous are afforded to the public. Such, however,
is not the situation of the individual who now addresses your
Lordships. When the exculpation rests solely in the hands of
the person accused, it becomes him, on the credit of the esteem
and respect with which his assertion has been hitherto received,
to employ that assertion, given in a manner the most solemn
and impressive, for his own vindication." —
After adverting to his reluctance to run any risk of making
disclosures contrary to his oath as a Privy Councillor, and stating
the issuing of the Commission, he thus proceeded : —
" In that Commission I found my name included ; but the
subject of inquiry, the intention to issue the Commission, and
the Commission itself, were all profound secrets to me, until
I was called upon to discharge the high and sacred duty that
upon me was thus imposed. I felt that much was due to this
command, and it was accompanied with some inward satisfaction
that the integrity and zeal with which I had endeavoured to
LIFE OF LORD ELLENBOROUGH. 207
discharge my public functions, had made a favourable impres-
sion upon the mind of my Sovereign ; notwithstanding which,
the mode in which this command was obeyed has been made
the subject of the most unprincipled and abandoned slanders.
It has been said, that after the testimony had been taken in a
case where the most important interests were involved, the
persons intrusted had thought fit to fabricate an unauthorised
document, purporting to relate what was not given, and to sup-
press what was given in evidence. My Lords, I assert that the
accusation is as false as hell in every part ! What is there, let
me ask, in the transactions of my past life — what is there in
the general complexion of my conduct, since the commencement
of my public career, that should induce any man to venture on
an assertion so audacious ? That it is destitute of all founda-
tion would, I trust, be believed even without my contradiction ;
but where it originated or how it was circulated I know not.
I will not trench on the decorum that ought to be observed in
the proceedings of this House further than in such a case is
necessary ; but I will give the lie to such infamous falsehood,
and I will, to the last hour of my existence, maintain the truth
of that which I know to be founded on fact. It occurred to
me, my Lords, that in order to facilitate the proceedings, and
at the same time to conduct them with the secrecy that was so
important, it would be fit to select a person, in whom especial
confidence might be reposed, for the purpose of recording the
examinations, by taking down the evidence from the mouth of
the witness in the most correct form. I thought that both the
secrecy and accuracy required would be best consulted and
secured by appointing an honourable and learned gentleman,
who then held the office of Solicitor-General, Sir Samuel Romilly.
On every occasion when testimony was given, with only one
exception, we had the benefit of his presence ; but on that single
occasion, whether it was that the commissioners found them-
selves at leisure to proceed, or whether they were unwilling that
the witnesses should be called upon unnecessarily to attend
again, I do not exactly remember; but it so happened that
208 KEIGN OF GEORGE III.
we determined to pursue our inquiries without his aid, for a
messenger who had been despatched for Sir Samuel Romilly
A.D. 1813. returned with information that he could not be found. It then
occurred to my noble colleagues and to myself that we could
take down the evidence ourselves, and as I was in the parti-
cular habit of recording testimony (discharging, I believe, twice
as much of that duty as any other individual in the kingdom)
it was resolved that on that evening I should hold the pen. I
complied ; and I declare and make the most solemn assevera-
tion (which I should be happy, were it possible, to confirm and
verify under the sacred sanction of an oath), that the examina-
tion that evening taken down by me proceeded, in every part,
from the mouth of the witness — that the testimony, at its termi-
nation, was read over to the witness — that the witness herself
read and subscribed her name to the concluding sheet, as she
had previously affixed her initials to that on which the evidence
was commenced. Were I to advert to the terms in which that
evidence was couched, I fear that I should be trenching upon
the terms of the oath by which my duty is bound ; but thus
much I may say, upon the character of the paper (which I wish
could be laid before the House without provoking a discussion
or leading to improper disclosures, that I would not for a thou-
sand reasons have promulgated), that if it could be inspected,
the strongest internal evidence would be found upon its face
to show that it was a genuine production as taken from the
mouth of the witness : if it could be consulted, many inter-
lineations would be noticed, qualifying and altering the text
according to the wish of the witness, and every individual
reading it with the application of common sense, would find
that these alterations could only have been made at the time
the person was under examination. I do not think that I
bestow upon myself too great a share of praise, when I say that
I may take credit to myself at least for accuracy in details of
this kind, and I will venture to maintain that there is not in
the original document one word which was not uttered, approved
and signed, after the most deliberate consideration by the witness.
LIFE OF LORD ELLENBOROUGH. 209
" My Lords, if I could be guilty of the negligence, or rather
the wickedness imputed, are my noble colleagues and friends
so negligent or so wicked as to connive at a crime of such A<1)*
unparalleled enormity? I am not aware that a syllable the
witness wished to add was omitted, and I speak from the
most perfect recollection and the most decided conviction when
I say, that the minutes made by me contained the whole of
the evidence, and nothing but the evidence, of the person then
under examination. I am not in the habit of making complaints
against publications ; but if in any case it were necessary, it
would be more peculiarly so in the present, where I am charged
with a crime not only inconsistent with the functions of the
high office I hold, but inconsistent with the integrity that, as a
man, I should possess. Surely, for myself and my noble friends,
I may be allowed to insist that we anxiously and faithfully dis-
charged a public duty, and I hope, in the face of the House
and of the country, we shall stand clear of this most base and
miscreant imputation.
" I have heard it said, but the charge can only originate in
the grossest stupidity, that we, as Commissioners, misbehaved
ourselves in various respects. Folly, my Lords, has said, that
in examining the witnesses we put leading questions. The
accusation is ridiculous — it is almost too absurd to deserve
notice. In the first place, admitting the fact, can it be objected
to a Judge that he puts leading questions ? Can it be objected
to persons in the situation of the Commissioners that they put
leading questions ? I have always understood, after some little
experience, that the meaning of a leading question was this,
and this only, that the Judge restrains an advocate who pro-
duces a witness on one particular side of a question, and who
may be supposed to have a leaning to that side of the question,
from putting such interrogatories as may operate as an instruc-
tion to that witness how he is to reply to favour the party for
whom he is adduced. The counsel on the other side, however,
may put what questions he pleases, and frame them as best
VOL. III. P
210 REIGN OF GEORGE III.
suits his purpose, because then the rule is changed, for there
is no danger that the witness will be too complying. But even
A.D. 1813. jn a cage wnere evidence is brought forward to support a parti-
cular fact, if the witness is obviously adverse to the party
calling him, then again the rule does not prevail, and the most
leading interrogatories are allowed. But to say that the Judge
on the bench may not put what questions, and in what form he
pleases, can only originate in that dulness and stupidity which
is the curse of the age. Folly says again, that the testimony of
the witness should have been recorded in question and answer.
When, I ask, was it ever done ? is there a single instance of
the kind ? will the most grey-headed judicial character in the
country show a solitary example of the kind ? It is impossible ;
and undoubtedly the most convenient mode was for the witness
to see his evidence in one unbroken narrative, without the inter-
ruption of questions composed -of words which he never em-
ployed— it is the language of the witness and not of the inter-
rogator that is required. Such accusations are the offspring of
a happy union of dulness and stupidity, aided by the most
consummate impudence that was ever displayed.
" It would, I confess, be a great satisfaction to my mind and
to those of my noble colleagues, if we had any means, without
violating sacred and indispensable obligations, of attesting the
truth of these facts ; but the nature of the inquiry forbids it.
We cannot produce the evidence itself; I dare not give the
explanation that would set the matter for ever at rest ; and in
the situation I hold, and under all the circumstances, it is im-
possible that the Prince Regent should be addressed that the
original document might be laid before the House.
" My Lords, this malignant and unfounded charge — this
base and nefarious calumny — is one of the worst symptoms of
the times in which wre live. It shows an indifference in the
public mind as to truth and falsehood ; it originates in malice
and is supported by ignorance ; it is tossing firebrands in all
directions, leaving those who are in danger from the flames to
LIFE OF LORD ELLENBOROUGH. 211
escape as well as they can, sometimes almost by a miracle. CHAR
This, my Lords, is one of the most hazardous attempts ; it is ' /• — '
a cruel attack upon those who are unable to defend themselves. A'D> **
We have struggled, but I hope not in vain, to defeat the
nefarious and horrible design. I feel that it is impossible to
give the accusation a more positive denial. I have declared
that it is false from the commencement to the conclusion, and I
shall sit down ashamed that it has been necessary for me to say
anything : I feel almost ashamed that any vindication was
required. I do not say that I am personally indifferent on
a question of such undoubted magnitude ; but if it regarded
myself only, I could be well content to leave such degraded
calumnies to their own refutation. I was called upon to dis-
charge a public duty ; that duty I assert I discharged faith-
fully ; and that I took down the depositions fairly, fully, and
honestly, I protest on my most solemn word and asseveration.
I have spoken merely to vindicate myself and my colleagues.
That vindication I trust is complete. -We only wish to stand
well in the opinion of our country as honest men who have
faithfully discharged a great and painful duty ; and let it be
recollected, that having no means of resorting to proof, we are
compelled to rest our exculpation on a flat, positive, and com-
plete denial." *
All candid men believed that the investigation had been
carried on with perfect fairness, — but the violence of the noble
and learned Lord's vindication was regretted, and many ques-
tioned the soundness of his positions as to the unlimited right of
a Judge to put leading questions, and still more denied that in
such an inquiry it was proper to give only the substance of the
evidence of the witnesses, compounding questions and answers,
— instead of writing down the questions and the answers at full
length, so as to obviate the possibility of misrepresentation or
mistake.
* 25 Parl. Deb. 207
P2
212 REIGN OF GEORGE III.
For several Sessions following, Lord Ellenborough took no
part in debate upon any political subject, and confined his
efforts in the House of Lords to a strenuous opposition to Bills
for amending either the civil or criminal law, all which he
denounced as Jacobinical and Revolutionary.
nth June. In 1816 he zealously supported the severe Alien Bill which
ministers still considered necessary after the return of peace ;
and, to show that at common law the King has a right by the
royal prerogative to send all aliens out of the kingdom, he cited
a petition of the merchants of London in the reign of Edward I.,
praying that monarch to do so. On a subsequent evening Earl
Grey ventured to question the bearing of this precedent, which,
he said, had been brought forward in " the proud display of a
noble and learned Lord."
Lord Ellenborough. — " I rise, my Lords, to repel with indig-
nation the base and calumnious imputation against me by the
noble Earl, of having falsified a document, namely, the Petition
of the City of London to Edward I. I hold in my hand a copy
of that document, and its contents will show how unjustly I have
been attacked."
Having read it in a loud and angry voice, he added in a very
softened tone as he was about to resume his seat :
" I thought it due, my Lords, to my own character to make
this explanation, and I trust that I have done it without any
asperity of language. [A loud laugh from both sides of the
House.] That laugh awakens a sentiment in my mind which
I will not express. All I shall say is, that a man who is capable
of patiently enduring the imputation of having falsified a docu-
ment is capable of that atrocity." *
Lord Ellenborough's last speech in the House of Lords was
on the 12th of May, 1817, in opposition to Lord Grey's motion
for a censure on Lord Sidmouth's circular letter, inviting all the
magistrates of England to interfere for the purpose of putting
* 34 Parl. Deb. 1069-1143.
LIFE OF LORD ELLENBOROUGH. 213
down seditious publications, and telling them that it was their
duty to imprison all the authors and vendors who could not give
bail for their appearance at Quarter Sessions to answer indict-
ments against them. Recollecting that he owed his promotion
as Attorney-General and as Chief Justice to the Home Secre-
tary, who was now accused, and who was generally supposed to
have been guilty of a great indiscretion, if not of an illegal
stretch of authority, he redeemed the pledge he had given in
these words, " I am yours, and let the storm blow from what
quarter of the hemisphere it may, you shall always find me at
your side." The noble and learned Lord now delivered a very
long and elaborate argument to prove that, by the common law
of England, Justices of the Peace have power to hold to bail
in cases of libel. This was answered by Lord Erskine, who in-
sisted that the assumed power was an entire novelty and a dan-
gerous usurpation. The Lords, persuaded by the learning
and eloquence of the Chief Justice, or blindly determined to
support the Government, rejected the motion by a majority of
75 to 19.*
After the permanent insanity of George III. and the esta- Lord Eiien-
blishment of the Regency, Lord Ellenborough was a member member of
of the Queen's Council, to assist her in the custody and care
of the King's person. In this capacity he had a daily report
sent to him in a red box, which was handed up to him on the King's per-
bench, and he frequently attended meetings of the Council at the Re-
Windsor. Having been absent from one of these, he received gency>
the following letter from Lord Eldon, which gives an interesting A-D
account of the afflicted monarch and his family during this
calamity : —
" (Confidential')
" MY DEAR LORD,
" The Archbishop being from town, I trouble you with
a sketch of yesterday's proceedings at Windsor, your absence
* 36 Parl. Deb. 445-51G.
214 EEIGN OF GEORGE III.
from which I greatly lamented, especially as the King wished
to see you, and you would have been glad to see him.
" We had good and bad. Upon our arrival we received the
daily account signed by all the doctors and Dundas. You must
see that, it being by far the best account we have ever had.
They state, I think, that no delusions had been betrayed for
three days, — Bott, the page, said none since Tuesday. They
stated that, if the schemes and plans remained, they remained
in a less degree than they had been before observed to exist ;
and they unanimously recommended that the King should have
greater freedom and liberties, and more of communication with
others than had been allowed him — that this would try the
solidity, and enable them to judge of the permanence of his
improved state.
" I then desired them, by a written question, to specify in
writing what they recommended, and not to leave us to judge
of what was to be done under their general recommendation.
" They recommended — then in writing — unanimously :
" 1. That Colonel Taylor should be with the King, his inter-
course limited in degree, that is, as I understand it, by their
prudence.
" 2. That the King's chaplain should read the daily prayers
in his room, not his chapel.
" 3. That Lord Arden, Lord St. Helens, and others of that
description, should visit and walk with him.
" 4. That he should have his keys restored to him.
" Whilst they were consulting on these measures, the Dukes
of York and Kent came to the Council, as we believed, by the
Queen's desire, to represent that their walk had been very un-
comfortable; that the King betrayed no delusion, but that he
was very, very full of plans and schemes, much more so than he
had lately been to the Duke of York, and that they were particu-
larly alarmed at his conversation about having his keys. I
should here tell you that the Queen sent for me immediately
upon my arrival at Windsor, and, in a conversation I had with
her Majesty and the Princess Augusta, expressed great appre-
hensions about the keys, both representing great improvement
LIFE OF LORD ELLENBOROUGH. 215
in the King. I found that this subject had been mentioned on
Wednesday to the Council then at Windsor, and that the King
had learnt that it was under their consideration. The Dukes
also stated that the King's conversation was hurried, and did
not admit of their saying one word. This was all delivered by
the Dukes themselves to Dr. Halford, and afterwards to us, and
by the Council it was all delivered in charge to all the phy-
sicians for their serious consideration.
" In the mean time, the Master of the Rolls and I went to
the King, he having himself desired to see you and us. His
manner to me was much kinder, and he had in the course of
the week observed to Willis that he thought me entitled to a
belief on his part that I was right in what I had done, though
he could not make it out how I could be so, and why I had not
resigned the Seal. Willis had told him that I could not resign
the Seal, that his Majesty was not well enough to accept it on
resignation, and that the Prince, till he was Regent, could not
have it offered to him, and that therefore it could not be resigned
till the act his Majesty blamed on my part was done. He
expressed surprise he had not adverted to this himself. The
Queen or Princess Augusta had told me that he studiously
called me Lord Eldon, and not Chancellor, or to that effect,
and that he had told his family that when you and Grant and I
were with him, he had been as reserved as he could towards
me, and had avoided calling me Chancellor, but that he was in
good humour again. Both Grant and I thought him so : his
conversation was calm, quiet, connected, admitting of free con-
versation on our part, all the subjects good, the whole manner
right. I think Grant will tell you we left the room sunk with
grief that there could be any thing wrong where all appeared
so right He said not a syllable, however, of himself, his
situation, or his plans, and we understand it to be his determi-
nation not to make any request of any kind, of anybody,
respecting himself. Upon our return at the end of three-quar-
ters of an hour's visit, which concluded in a dignified bow upon
Willis's coming in, and a kind speech towards me as Chancellor,
we found that the doctors were ready with their written paper
216 REIGN OF GEORGE III.
(which you must see), stating that, upon full consideration of all
circumstances, they still recommended the measures before men-
tioned, including the restoration of the keys.
" We were much puzzled, but we all agreed that we could
not venture to control the doctors' unanimous and deliberate
advice.
" We, therefore, in a written paper, advised the Queen to
restore the keys ; — in that paper stating (for her sake) that she
had hitherto retained them under our advice ; and in another
paper we directed the physicians, if any improper use of the
keys was attempted, to interpose to prevent it, and inform the
Council of the occurrence. This was necessary, as the keys
open presses in which there are papers of consequence, and, it
is understood, jewels of value. Taylor's attendance is to see
that nobody sees any papers but the King, T. being acquainted
with them all ; and he has orders not to obey any orders either
about papers, jewels, or other things. Willis and Bott expressed
the utmost confidence that the King would do nothing wrong
with his keys. Bott stated that he could not have answered for
that a week ago, but all thought the recovery going on very
rapidly.
" The prayers were to be said in the private room, because
the physicians wished that the King should not yet go to the
chapel, which is up stairs, as that step would lead him to think
that he was to be up stairs as much as he wished. We desired
that a particular account might be sent us to-day of the effect
of all this, which you will receive in the course of circulation.
I have detailed this as accurately as I can remember it, because
it 's natural you should know it, and because it tends to show, I
think, that attendance at meetings becomes now of much im-
portance. One of the doctors observed to the D. of M. that,
in all this illness, much of improper communication as the King
had made, he had never said a syllable upon state matters.
This, I believe, was Baillie.
" In our papers of yesterday, which upon the Archbishop's
return you should see, we noticed your absence, as we did the
Duke of Montrose's formerly, that, if we are blameable, it may
LIFE OF LORD ELLENBOROUGH. 217
be recorded that you are not so. I have communicated these
matters to the Prince last night, who was very good-humoured
and reasonable upon them.
" Yours, my dear Lord,
" ELDON."
When this letter was written Lord Eldon had not really been
taken into favour by the Regent, and, on the contrary, he ex-
pected to be speedily turned out of office. He therefore still
clung with tenacity to the forlorn hope of the King's recovery,
and he was exceedingly anxious to have Lord Ellenborough's
co-operation in case there should appear to be any ground for
restoring his Majesty to the throne. But the Regent soon after
having for ever renounced " his early friends," Lord Eldon
changed his tactics, and encouraged the belief that the King
was incurably mad. Lord Ellenborough appears to have re-
fused always to join in any of these intrigues, and to have been
only solicitous that the truth should be disclosed, and that justice
should be done to the King, to the Prince, and to the Nation.*
* See Lives of Chancellors, ch. 201.
218
EEIGN OF GEORGE III.
CHAPTER LI.
CHAP.
LI.
A.D. 1814-
1817.
Trial of
Lord
Cochrane.
A.D. 1814,
CONCLUSION OF THE LIFE OF LORD ELLENBOROUGH.
I HAVE now only to mention some criminal cases which arose
before Lord Ellenborough in his later years. Of these the
most remarkable was Lord Cochrane's, as this drew upon the
Chief Justice a considerable degree of public obloquy, and
causing very uneasy reflections in his own mind, was supposed
to have hastened his end. In the whole of the proceedings con-
nected with it he was no doubt actuated by an ardent desire
to do what was right, but, in some stages of it, his zeal to
punish one whom he regarded as a splendid delinquent, carried
him beyond the limits of mercy and of justice.
Lord Cochrane (since Earl of Dundonald) was one of the most
gallant officers in the English navy, and had gained the most
brilliant reputation in a succession of naval engagements against
the French. Unfortunately for him, he likewise wished to dis-
tinguish himself in politics, and, taking the Radical line, he was
returned to Parliament for the city of Westminster. He was
a determined opponent of Lord Liverpool's administration, and
at popular meetings was in the habit of delivering harangues
of rather a seditious aspect, which induced Lord Ellenborough
to believe that he seriously meant to abet rebellion, and that
he was a dangerous character. But the gallant officer really
was a loyal subject, as well as enthusiastically zealous for
the glory of his country. He had an uncle named Cochrane,
a merchant, and a very unprincipled man, who, towards the end
of the war, in concert with De Berenger, a foreigner, wickedly
devised a scheme by which they were to make an immense
fortune by a speculation on the Stock Exchange. For this pur-
pose they were to cause a sudden rise in the Funds, by spread-
LIFE OF LOKD ELLENBOKOUGH. 211)
ing false intelligence that a preliminary treaty of peace had
actually been signed between England and France. Every-
thing succeeded to their wishes ; the intelligence was believed,
the Funds rose, and they sold on time bargains many hundred
thousand pounds of 3 per cents, before the truth was discovered.
It so happened that Lord Cochrane was then in London, was
living in his uncle's house, and was much in his company, but
there is now good reason to believe that he was not at all im-
plicated in the nefarious scheme. However, when the fraud
was detected, — partly from a belief of his complicity, and partly
from political spite, he was included in the indictment preferred
for the conspiracy to defraud the Stock Exchange.
The trial coming on before Lord Ellenborough, the noble
and learned Judge, being himself persuaded of the guilt of all
the defendants, used his best endeavours that they should all
be convicted. He refused to adjourn the trial at the close of
the prosecutors' case about nine in the evening, when the trial
had lasted twelve hours, and the Jury as well as the defendants'
counsel were all completely exhausted, and all prayed for an
adjournment. The following day, in summing up, prompted no
doubt by the conclusion of his own mind, he laid special em-
phasis on every circumstance which might raise a suspicion
against Lord Cochrane, and elaborately explained away what-
ever at first sight appeared favourable to the gallant officer.
In consequence the Jury found a verdict of GUILTY against all
the defendants.
Next term Lord Cochrane presented himself in Court to
move for a new trial, but the other defendants convicted along
with him did not attend. He said truly that he had no
power or influence to obtain their attendance, and urged that
his application was founded on circumstances peculiar to his
own case. But Lord Ellenborough would not hear him, because
the other defendants were not present.* Such a rule had before
been laid down, but it is palpably contrary to the first principles
of justice, and it ought immediately to have been reversed.
* 3 Muule and Selwyn, 10, G7.
220
EEIGN OF GEORGE III.
A.D. 1814-
1817.
Trial of Dr.
Watson for
high trea-
son.
Lord Cochrane was thus deprived of all opportunity of show-
ing that the verdict against him was wrong, and, in addition to
fine and imprisonment, he was sentenced to stand in the pillory.
Although as yet he was generally believed to be guilty, the
award of this degrading and infamous punishment upon a young
nobleman, a member of the House of Commons, and a distin-
guished naval officer, raised universal sympathy in his favour.
The Judge was proportionably blamed, not only by the vul-
gar, but by men of education on both sides in politics, and he
found upon entering society and appearing in the House of
Lords that he was looked upon coldly. Having now some
misgivings himself as to the propriety of his conduct in this
affair, he became very wretched. Nor was the agitation allowed
to drop during the remainder of Lord Ellenborough's life, for
Lord Cochrane, being expelled the House of Commons, was
immediately re-elected for Westminster ; having escaped from
the prison in which he was confined under his sentence,
he appeared in the House of Commons ; in obedience to the
public voice, the part of his sentence by which he was to stand
in the pillory was remitted by the Crown ; and a Bill was intro-
duced into Parliament altogether to abolish the pillory as a
punishment, on account of the manner in which the power of
inflicting it had been recently abused. It was said that these
matters preyed deeply on Lord Ellenborough's mind and affected
his health. Thenceforth he certainly seemed to have lost the
gaiety of heart for which he had formerly been remarkable.*
In Trinity Term, 1817, there came on at the King's Bench
bar the memorable trial of Dr. James Watson for high treason,
when the Chief Justice exerted himself greatly beyond his
strength, having to contend with the eccentric exuberance of
Sir Charles Wetherell, greatly piqued against the Government
because, though a steady Tory, he had been passed over
when he expected to have been appointed Solicitor-General, —
* Many years afterwards, Lord Coclirane?s case being reconsidered, he was
restored to his rank in the navy, he was entrusted with an important naval
command, and eulogies upon his services and upon his character were pro-
nounced by Lord Brougham and other Peers.
LIFE OF LOKD ELLENBOKOUGH. 221
and with the luminous energy of Sergeant Copley, who on this
occasion gained the reputation which in rapid succession made
him, with universal applause, Chief Justice of Chester, Solicitor A-D* lf
and Attorney-General, Master of the Rolls, Lord Chancellor,
and Baron Lyndhurst.* These two distinguished advocates,
cordially concurring in the tender of their services, were assigned
as counsel for the prisoner, and struggled with unsurpassed
zeal in his defence. Conscientiously believing that the insur-
rection in which Watson had been engaged was planned by
him for the purpose of overturning the Monarchy, the vener-
able Judge was honestly desirous of obtaining a conviction.
But, quantum mutatus ab illo — he presented only a ghost-like
resemblance of his former mighty self. When Sir Charles
Wetherell described Castle, the accomplice, the principal wit-
ness for the Crown, as " an indescribable villain " and " a
bawdy-house bully," the enfeebled Chief Justice exclaimed that
" terms so peculiarly coarse might have been spared out of
regard to the decorum of the Court," and he animadverted
severely upon some of the gesticulations of the same irrepressible
counsel, threatening to proceed to a painful act of authority if
the offence were repeated ; but the deep, impressive tones and
the heart-stirring thoughts with which from the bench he used
to create awe and to carry along with him the sympathies of the
audience were gone ; and, notwithstanding formidable proofs to
make out a case of treason, an acquittal was early anticipated.
The trial having lasted seven long days, the Chief Justice
was much exhausted, and in summing up he was obliged to ask
Mr. Justice Bayley to read a considerable part of the evidence.
His strength being recruited, he thus very unexceptionably con-
cluded his charge : —
" You must now proceed to give that verdict which I trust
you will give from the unbiassed impulse of honest and pure
minds acting upon the subject before you, and which will have
* Lord Castlereagh was sitting on the Bench during the trial, and expressing
great admiration of his Whig-Radical eloquence, is said to have added, " I will
set my rat-trap for him — baited with Cheshire cheese"
222 KEIGN OF GEOEGE III.
C HAP. the effect of affording protection and immunity to the prisoner
v_^ — ' at the bar if he shall be found entitled to protection and im-
A.D. 1817. munity from the charges made against him ; but, in another
point of view, affording also that security to the laws and people
of this land, and to its government as it subsists under those
laws and is administered by the King and the two Houses
of Parliament ; thus satisfying your own conscience and the
expectation of your country, unbiassed by any consideration
which might affect the impartiality of that justice which you are
under so many solemn sanctions this day required to administer.
Gentlemen, you will consider of your verdict."
He then asked them whether they would take some refresh-
ment before they left the bar, — when the foreman, in a tgne
which made the Chief Justice's countenance visibly collapse,
said, " My Lord, we shall not be long." Accordingly after
going through the form of withdrawing and consulting together,
they returned and pronounced their verdict, to which they had
long made up their minds, NOT GUILTY, — and thereupon all
the other prisoners who were to have been tried on the same
evidence were at once acquitted and liberated.*
Lord Ellen- In the following autumn Lord Ellenborough made a short
tour' on the tour on the Continent in the hope of re-establishing his health.
eut> He at first rallied from change of scene, but ere long unfavour-
able symptoms returned, and he seems to have had a serious fore-
boding that his earthly career was drawing to its close. A deep
sense of religion had been instilled into his infant mind by his
pious parents : this had never been obliterated ; and now it proved
his consolation and his support. While at Paris he composed
the following beautiful prayer, which may be used by all who
wish like him with a grateful heart to return thanks for the
past bounties of Providence, and, looking forward, to express
humble resignation to the Divine will : —
" Oh God, heavenly Father, by whose providence and good-
ness all things were made and have their being, and from whom
all the blessings and comforts of this life, and all the hopes and
* 32 St. Tr. 1-1074.
LIFE OF LORD ELLENBOROUGH. 223
expectations of happiness hereafter, are, through the merits of
our blessed Saviour, derived to us, Thy sinful creatures, I
humbly offer up my most grateful thanks and acknowledgments _^;E
for Thy Divine goodness and protection, constantly vouchsafed when his
to me through the whole course of my life, particularly in strength1
indulging to me such faculties of mind and body, and such
means of health and strength, as have hitherto enabled me to
obtain and to enjoy many great worldly comforts and advan-
" Grant me, oh Lord, I humbly beseech Thee, a due sense
of these Thy manifold blessings, together with a steadfast dis-
position and purpose to use them for the benefit of my fellow-
creatures, and Thy honour and glory. And grant, oh Lord,
that no decay or diminution of these faculties and means of
happiness may excite in my mind any dissatisfied or desponding
thoughts or feelings, but that I may always place my firm trust
and confidence in Thy Divine goodness ; and whether the bless-
ings heretofore indulged to me shall be continued or cease, and
whether Thou shalt give them or take them away, I may still,
in humble obedience to Thy Divine will, submit myself in all
things with patience and resignation to the dispensations of Thy
Divine providence, humbly and gratefully blessing, praising,
and magnifying Thy holy name for ever and ever. Amen.
" Paris, 1817."
When Michaelmas Term returned he was able to take his
seat in the Court of King's Bench, but he was frequently
obliged to call in the assistance of the puisne judges to sit for
him at nisi prius.
The trial of William Hone coming on at Guildhall, although Trial of
there was a strong desire to convict him, for he had published Hone.
very offensive pasquinades on George IV., the task of presiding
was intrusted to Mr. Justice Abbott. The defendant was
charged by three different informations with publishing three
parodies, entitled ' The late John Wilkes's Catechism,' ' The
Political Litany,' and * The Sinecurist's Creed.' He was not
224 REIGN OF GEORGE III.
C HAP. at all supposed to be formidable, not being hitherto known as a
v - » - ' demagogue ; but in truth he defended himself with extraordi-
A.D. 1817. f tlle firgt
obtained a verdict of acquittal amidst the shouts of the mob.
This being related to the enfeebled Chief Justice — his energy
was revived, and he swore that at whatever cost he would
preside in Court next day himself, so that conviction might be
certain, and the insulted law might be vindicated. Accord-
ingly he appeared in Court pale and hollow-visaged, but with a
spirit unbroken, and more stern than when his strength was
unimpaired. As he took his place on the bench, " I am glad
to see you, my Lord Ellenborough," shouted Hone ; " I know
what you are come here for ; I know what you want." " I am
come to do justice," retorted the noble and learned Lord ;
" my only wish is to see justice done." " Is it not rather, my
Lord," said Hone, " to send a poor bookseller to rot in a
dungeon? "
The subject of this day's prosecution was " The Political
Litany," and the course taken by the defendant, with great
effect, was to read a vast collection of similar parodies com-
posed by writers of high celebrity, from Swift to Canning.
Some of these exciting loud laughter in the crowd, the indignant
Judge sent for the Sheriffs to preserve order, and fined them
for their negligence. In summing up to the jury he reminded
them that they were sworn on the Holy Evangelists and were
bound to protect the ritual of our Church from profanation : —
" There are many things," said he, " in the parodies you
have heard read which must be considered profane and impious,
although divines and statesmen may be the authors of them ;
but this parody of the defendant transcends them all in pro-
fanity and impiety. I will deliver to you my solemn opinion,
as / am required by Act of Parliament to do; under the
authority of that Act, and still more in obedience to my con-
science and my God, I pronounce it to be a MOST IMPIOUS AND
PROFANE LIBEL. Hoping and believing that you are Christians,
I doubt not that your opinion is the same."
LIFE OF LORD ELLENBOROUGH. 225
The usual question being put when the jury after a short
deliberation returned into Court, — the Chief Justice had the
mortification to hear the words NOT GUILTY pronounced, fol- A-D- 1817-
lowed by a tremendous burst of applause, which he could not
even attempt to quell.
But he was still undismayed, and declared that he would
proceed next day with the indictment on " The Sinecurist's
Creed." This was a most indiscreet resolution.
The whole of Hone's third trial was a triumph, the jury plainly
intimating their determination to find a verdict in his favour.
He read parallel parodies as on the preceding days, and at last
came to one said to be written by Dr. Law, the late Bishop of
Carlisle, the Judge's own father. Lord Ellenborough (in a
broken voice) : " Sir, for decency's sake forbear." Hone with-
drew it, and gained more advantage by this tasteful courtesy
than the parody could have brought him, had it been ever so
apposite. After a similar summing up as on the preceding
day, there was the like verdict, accompanied with still louder
shouts of applause.
Bishop Turner, who was present at the trial, and accom-
panied the Chief Justice home in his carriage, related that all
the way he laughed at the tumultuous mob who followed him,
remarking that "he was afraid of their saliva, not of their
bite :" and that passing Charing Cross he pulled the check-
string, and said, " It just occurs to me that they sell the best
red herrings at this shop of any in London ; buy six." The
popular opinion, however, was that Lord Ellenborough was
killed by Hone's trial, and he certainly never held up his head
in public after.
When the day again came round for the Judges to choose He is unable
their Summer Circuits, he chose the Home, and appointed the Summer
days for holding the assizes at each place upon it ; but as the time C
for his departure approached, his strength was unequal to the
task, and he accepted the offer of LENS, a King's Sergeant, an
excellent lawyer and an accomplished scholar (whom he greatly
wished to have for his successor as Chief Justice), to go in his
VOL. III. Q
226 REIGN OF GEORGE III.
stead. On this occasion he wrote the following letter to his
trusty clerk, who had served him faithfully many years : —
A.D. 1818.
" St. James's Square, July 1, 1818.
" DEAR SMITH,
"Mr. Sergeant Lens seems to prefer taking his own
carriage and a pair of horses, with a pair to be put before them
from his jobman, to having the use of my chariot, drivers, and
horses which I offered him. John will attend him as circuit
butler on a horse, with which I will provide him. You will
attend to all things material to the Sergeant's convenient
accommodation, and see that they be fully supplied in all respects.
The Sergeant as going in my place will, I presume, sit at each
place on the circuit on the Civil side or the Crown side, as 1
should have done myself, viz., on the Civil side at Hertford, and
on the Crown side at Chelmsford. You can apply to me if any
matter of doubt should occur — which, however, I do not expect
I am going out of town to Roehampton.
" Yours, &c.,
" ELLENBOROUGH."
He afterwards took up his quarters at Worthing on the coast
of Sussex, in hopes of benefit from the sea air. While there he
wrote the following letters to his anxious clerk, who had a
sincere regard for his kind master, besides holding an office
worth 20007. a-year on his master's life : —
" September 17th, 1818.
" DEAR SMITH,
"I think I am better, though but little, on my legs ;
and this fine weather gives me opportunity for beneficial exercise
and exposure to the fresh air. Charles, who is with his family
at Bognor, has been over to me here — as has Lushington from
the same place. I shall be glad to see you when we are within
distance of each other. Keep me properly apprised of your
change of place from time to time, and believe me,
" Ever most sincerely,
" ELLENBOROUGH."
LIFE OF LORD ELLENBOROUGH. 227
" October 1st, 1818. C HAP.
" DEAR SMITH, LI.
" I leave this place for Brighton for a month, on Saturday A>D> 1818
morning next. I have not gained much ground since I left
town, and unless I make a progress which I do riot expect, I
shall not be able to look business in the face very soon. I am very
lame in one of my legs from an erysipelas affection, which has
settled there. I have likewise a troublesome cough, proceeding
from the same cause. The Chief Justice of the Common Pleas *
is here, and better, upon the whole, than I expected to find
him. He is, however, very weak in body, and can hardly
sustain himself against any fatigue. I shall be glad to see you.
" Yours very sincerely,
" ELLENBOROUGH."
Before this he had found that all hope of returning to the
discharge of his public duties must be renounced, and he had
with firmness made up his mind to seek repose, that he might
prepare for the awful day when he himself was to stand before
the tribunal of an almighty, an omniscient, but merciful Judge.
The last stage of his judicial career has been thus graphically
described : —
" Nature had exhibited evident symptoms of decay before his
strenuous and ill-judged efforts on the trial of Hone ; his frame
had been shaken by violent attacks of gout, and during the
Hilary and Easter terms of 1818 his absence from Court
became more frequent, and his calls on the Puisne Judges for
assistance in the sittings after term were often, though reluct-
antly, renewed. The fretfulness of his manner, and his irritable
temperament, proved clearly the workings of disease when he
occasionally re-appeared in the submissive and silent hall, and
the frequent interruptions of ' I will not recast the practice of
the Court ; I do not sit here as pedagogue to hear first prin-
ciples argued. What are the issues ? What can you mean by
wandering thus wildly from the record? I will not tolerate
such aberration ; I cannot engender or inoculate my mind with
* Sir Vicary Gibbs, who was then dying.
Q2
228 REIGN OF GEOKGE III.
a doubt ; I will not endure this industry of coughing ;' attested
his impatient anxiety, and fast growing inability to sustain the
A.D. 1818. toilg of office> TQ the |agt ne clung. to m-g situatjon witn a^ie.
sive grasp, and girded himself with a sort of desperate fidelity
to perform its duties, at a time when, as he wrote to a friend,
' he could scarcely totter to his seat, and could only take notes
manu lassissima et corpore imbecillo? During the calm of the
recess he deluded his spirits with the hope that he might
resume his duties once more. The physicians recommended
Bath, hut his failing strength rendered the journey hazardous ;
Lord Ellen- and, just before Michaelmas term commenced, tardily and with
resigns his repining, he was compelled to announce to the Chancellor his
office- inability to remain." *
The following is his melancholy missive on this occasion : —
" Worthing, September 21, 1818.
" MY DEAR LORD,
" The decay of many of my faculties, particularly of my
eyesight, which I have painfully experienced since the beginning
of the present year, strongly admonishes me of the duty which I
owe to the public and myself on that account ; and as I have
now held the office of Chief Justice of the Court of King's Bench
for more than sixteen years, viz. from the 12th day of April,
1802, I am entitled, under the Acts of Parliament, to request,
which I most humbly do, the permission of His Royal Highness
the Prince Regent for leave to retire on the first day of next
term, upon that amount of pension which by those Acts of Par-
liament His Royal Highness the Prince Regent is authorised to
grant to a Chief Justice of the King's Bench retiring after a
period of fifteen years' service. If I had been able to depend
upon my strength for the due and satisfactory execution of my
most important office for a longer period, I should not now
have tendered my resignation to His Royal Highness."
The Chief Justice, without any servility, had always been a
special favourite at Carlton House, and his proffered resignation
* Townsend, vol. i. 389.
LIFE OF LORD ELLENBOROUGH. 229
drew forth the following graceful letter of condolence from the
PRINCE REGENT: —
A.D. 1818.
"MY DEAR LORD, Corap]i.
" I have only this moment been informed of your arrival mentaj7
in town, and I cannot suffer it to pass without conveying to you him from
the heart-felt grief with which I received from the Chancellor a JJjf ^'tm
few days ago, his report of the melancholy necessity under
which you have found yourself of tendering your resignation,
and of your retiring from public life. As to my own private
feelings upon this most sad occasion, I will not attempt their
expression; indeed, that would be quite impossible — but as a
public man I do not hesitate most distinctly to state, that it is
the heaviest calamity, above all in our present circumstances,
that could have befallen the country. My Lord, your career,
since the moment you took your seat, and presided in the high
court committed to your charge, can admit of but one sentiment,
and but of one opinion ; it has been glorious to yourself, and
most beneficial to the nation. You have afforded an example
combining wisdom with every other talent and virtue which exalt
your character, and place it beyond all praise. With these
sentiments, and such a picture before me, where can I hope to
find, or where can I look for that individual who shall not leave
a blank still in that great machine, of which you were the main-
spring and brightest ornament ? If, however, my dear friend,
there can be consolation for us under such afflicting circum-
stances, that consolation is, that you carry with you into your
retirement the veneration, gratitude, and admiration of the
good, and the unbounded love and affection of those who have
had the happiness of associating more intimately with you in
private life. I confess that the magnitude of the loss we are
about to sustain presses so heavily upon me, that I have not the
power of adding more than that my constant and most fervent
wishes for your health, comfort, and happiness will ever attend
you, and that I remain always,
" My dear Lord,
" Your most sincere and affectionate friend,
" GEORGE P. R.
" Carlton House, October 18th, 1818."
230 EEIGN OF GEORGE III.
On the 6th day of November the Chief Justice went through
the trying ceremony of executing his deed of resignation, which
A.D. IB. cog£ ]^m a Deeper pang than drawing his last breath. This
world had now closed upon him, and before another opened there
was a dreary interval, in which, reduced to insignificance, he had
the dread of suffering severe pain as well as cold neglect.
His family had flattered themselves that, when relieved from
the anxiety of business, to which he was inadequate, he would
rally, and that he might long be spared to enliven and to com-
fort them ; but the excitement of office being removed, he only
sunk more rapidly.
Having ever been a firm believer in Christianity, he was now
supported by a Christian's hope. In a short month after his
resignation it was evident that his end was approaching, and
having piously received the last consolations of religion, he calmly
His death, expired at his house in St. James's Square in the evening of
Sunday, the 13th of December, 1818. On the 22nd of the same
month his remains were interred in the cemetery of the Charter
House, by the side of those of Mr. Sutton, its honoured founder.
The funeral was attended by all the dignitaries of the law
and many distinguished men from other ranks of life, and its
pomp was rendered more solemn by a dense fog, which only per-
mitted to the eye a dim glimpse of the procession.*
* From the family of his clerk, Mr. Smith, I have in my possession the
originals of the two following letters, which I cannot refrain from copying, as
they seem to me very creditable to all who are mentioned in them. They
particularly show the subject of this memoir in a most amiable point of view,
and prove that if at times he was regardless of giving pain to his equals, he
must have been uniformly kind to dependents :
" Lofty and sour to them that loved him not ;
But to those men who sought him, sweet as summer."
The first, announcing Lord Ellenborough's death to Mr. Smith, is from the
Honourable Charles Law, his second son, and the other, inviting Mr. Smith
to the funeral, is from the present Earl of Ellenborough : —
" Southampton Row, 8 o'clock.
" MY DEAR FRIEND,
" It has become my melancholy duty to announce to you the death of
my beloved parent. He breathed his last about six o'clock, without a sigh
LIFE OP LORD ELLENBOEOUGH. 231
On a tablet near the spot where his dust reposes, there is the
following simple inscription to his memory : —
A.D. 1818.
In the Founder's vault are deposited the remains of His epitaph.
EDWARD LAW, LORD ELLEN BOROUGH,
son of EDMUND LAW, LORD BISHOP of CARLISLE,
Chief Justice of the Court of King's Bench from April
1802 to November 1818,
and a Governor of the Charter-House.
He died December 13th, 1818, in the 69th year of his age ;
and in grateful remembrance of
the advantages he had derived through life from his
Education
upon the Foundation of the Charter-House,
desired to be buried in this Church.
His character has been thus drawn by one who knew him Hischarao
n ter-
well : —
" He was not a man of ambition ; he had still less of vanity.
He received with satisfaction certainly, but without the smallest
excitement, the appointment of Attorney-General, the Chief
Justiceship, and the Peerage. I never knew any man, except
the Duke of Wellington, who was so innately just. He tho-
roughly loved justice — strict justice, perhaps, but still justice.
and without a struggle. If you could call on me this evening, it would much
oblige me.
" Yours, very sincerely and faithfully,
" CHAS. E. LAW."
" St. James's Square, Dec. 18, 1818.
" MY DEAR STR,
" I am sure the long and intimate connection you had with my father,
and the regard you naturally entertained for him, would make you desirous of
joining his family in the performance of the last duties to his memory ; and I
am equally sure, from my knowledge of the gratitude my father felt for your
very useful and faithful services, and of the esteem in which he held your cha-
racter, that it would have been gratifying to him to think that his remains
would be attended to the grave by you. Allow me, therefore, to request that
you will proceed with us from this house on Tuesday morning before half-past
seven.
" Very truly and faithfully yours,
"E.
" I have great pleasure in communicating to you that my late respected
father has, in testimony of your long and most faithful services, bequeathed
to you the watch and gold chain he usually wore, and a small sum for the
purchase of some memorial of him."
'232 KEIGN OF GEORGE III.
He was also thoroughly devoted to the performance of his duty.
I have heard him say that no private consideration could absolve
a man from the execution of public duty — that should the person
dearest to him in the world die, he would go into court next
day, if physically capable of doing so. When he took as 4his
motto composition jus fasque animi, he stamped his own charac-
ter upon his shield."
Of Lord Ellenborough as a Judge little remains to be said.
Notwithstanding his defects, which were not small, it must be
admitted that he filled his high office most creditably. He had
an ascendency with his brethren, with the bar, and with the
public, which none of his successors have obtained, and since his
death his reputation has in no degree declined.* His bad temper
and inclination to arrogance are forgotten, while men bear in
willing recollection his unspotted integrity, his sound learning,
his vigorous intellect, and his manly intrepidity in the discharge
of his duty.
Lord Ellen- As a legislator his fame depends upon the Act (Lord Ellen-
Act. ° borough's Act, 43 Geo. III. c. 58) which goes by his name, the
only one he ever introduced into parliament, — by which ten new
capital felonies were created, and the revolting severity of our
criminal code was scandalously aggravated. Some of these,
which before were only misdemeanors, might without impro-
priety have been made clergyable felonies, punishable with long
imprisonment or transportation ; but punishing them with death
raised a cry against capital punishment, even in cases of murder,
where it is prompted by nature, sanctioned by religion, and neces-
sary for the security of mankind. However, Lord Ellenborough,
with many of his contemporaries, thought that the criminal code
could not be too severe. He strenuously opposed all the efforts
* The unenviable awe which he inspired into his brother Judges may be
imagined from the following statement of Lord Brougham : " I remember being
told by a learned Serjeant, that at the table of Serjeants' Inn, where the Judges
met their brethren of the coif to dine, the etiquette was in those days never to
say a word after the Chief Justice, nor ever to begin any topic of conversation.
He was treated with more than the obsequious deference shown at Court to the
Sovereign himself."
LIFE OF LORD ELLENBOROUGH. 233
of Sir Samuel Romilly in the cause of humanity, and was as much
shocked by a proposal to repeal the punishment of death for
stealing to the value of five shillings in a shop, as if it had been
to abrogate the Ten Commandments : —
" I trust," said he, " your Lordships will pause before you His ap-
assent to a measure pregnant with danger to the security of S^ere penal
property, and before you repeal a statute which has been so code<
long held necessary for public security, and which I am not
conscious has produced the smallest injury to the merciful
administration of justice. After all that has been stated in
favour of this speculative humanity, it must be admitted that
the law as it stands is but seldom carried into execution, and
yet it ceases not to hold out that terror, which alone will be
sufficient to prevent the frequent commission of the offence. It
has been urged by persons speculating in modern legislation,
that a certainty of punishment is preferable to severity — that it
should invariably be proportioned to the magnitude of the
crime, thereby forming a known scale of punishments commen-
surate with the degree of offence. Whatever may be my
opinion of the theory of this doctrine, I am convinced of its
absurdity in practice. . . . Retaining the terror, and leaving
the execution uncertain and dependent on circumstances which
may aggravate or mitigate the enormity of the crime, does not
prove the severity of any criminal law ; whereas to remove that
salutary dread of punishment would produce injury to the
criminal, and break down the barrier which prevents the fre-
quent commission of crime. The learned Judges are unani-
mously agreed that the expediency of justice and the public
security require there should not be a remission of capital
punishment in this part of the criminal law. My Lords, if we
suffer this bill to pass, we shall not know where to stand — we
shall not know whether we are on our heads or on our feet. If
you repeal the Act which inflicts the penalty of death for stealing
to the value of five shillings in a shop, you will be called upon
next year to repeal a law which prescribes the penalty of death
234 REIGN OF GEORGE III.
C HAP. for stealing five shillings in a dwelling house, there being no
person therein — a law, your Lordships must know, on the
severity of which, and the application of it, stands the security
of every poor cottager who goes out to his daily labour. He,
my Lords, can leave no one behind to watch his little dwelling
and preserve it from the attacks of lawless plunderers ; confident
in the protection of the laws of the land, he cheerfully pursues
his daily labours, trusting that on his return he shall find all
his property safe and unmolested. Repeal this law, and see
the contrast : no man can trust himself for an hour out of doors
without the most alarming apprehensions that on his return
every vestige of his property will be swept away by the hardened
robber. My Lords, painful as is the duty — anxious as the
feelings of a Judge are — unwilling as he is to inflict the tre-
mendous penalties of the law — there are cases where mercy and
humanity to the few would be injustice and cruelty to the many.
There are cases where the law must be applied in all its terrors.
My Lords, I think this, above all others, is a law on which so
much of the security of mankind depends in its execution, that I
should deem myself neglectful of my duty to the public if I failed
to let the law take its course.'1''
The Chief Justice scoffed " at that speculative and modern
philosophy which would overturn the laws that a century had
proved to be necessary — on the illusory opinions of speculatists."
" I implore you," he said, in one of his latest addresses to the
Lords, "not to take away the only security the honest and
industrious have against the outrages of vice and the licentious-
ness of dishonesty. There is a dangerous spirit of innovation
abroad on this subject, but against which I ever have been, and
always shall be, a steady opposer. I seek no praise — I want
no popular applause ; all I wish is, that the world may esteem
me as a man who will not sacrifice one iota of his duty for the
sake of public opinion. My Lords, I shall never shrink from
the fulfilment of the most arduous task from fear of popular
prejudice."
LIFE OF LORD ELLENBOROUGH. 235
The degree to which Lord Ellenborough's powerful mind was
perverted by early prejudice, may be seen from the following
entry in the Diary of Sir Samuel Romilly : —
" Lord Lauderdale told me that soon after my pamphlet
appeared, in 1810, he had some conversation about it with
Ellenborough, who told him, that though the instances were
very rare, yet it sometimes became .necessary to execute the
law against privately stealing in shops, and that he had himself
left a man for execution at Worcester for that offence. The
man had, he said, when he came to the bar, lolled out his
tongue and acted the part of an idiot ; that he saw the prisoner
was counterfeiting idiocy, and bade him be on his guard; that
the man, however, still went on in the same way ; whereupon
Lord Ellenborough, having put it to the jury to say whether the
prisoner was really of weak mind, and they having found that
he was not, and having convicted him, left him for execution.
Upon which Lord Lauderdale asked the Chief Justice what law
there was which punished with death the counterfeiting idiocy
in a court of justice ; and told him that he thought his story
was a stronger illustration of my doctrines than any of the
instances which I had mentioned."
Lord Ellenborough was equally opposed to every improvement
in the law of Debtor and Creditor, and prophesied the utter ruin
of commercial credit and the subversion of the empire if the in-
valuable right of arresting on mesne process should ever be taken
away, or the fatal principle of cessio bonorum should ever be
recognized in this country, so as that an honest insolvent might
be entitled to be discharged out of prison on yielding up the
whole of his property to his creditors.*
I may perhaps feel some little pride in beholding England,
after the passing of bills, which I had the honour to introduce
into parliament, to take away " the invaluable right," and to
establish " the fatal principle," — more wealthy and more pros-
perous than she ever was before.
* 19 Parl. Deb. 1169-1172 ; 20 Parl. Deb. 229, 606-7.
236
REIGN OF GEORGE III.
His dislike
of foreign
laws.
Lord Ellenborough had seen very little of foreign countries,
and was rather intolerant of what he considered unEnglish.
While in Paris, he went to attend a criminal trial at the Cour
d'Assises, but when the interrogatory of the prisoner began, he
made off, saying that it was contrary to the first principles of
justice to call upon the accused to criminate himself. He saw
still stronger reason to be disgusted with their civil procedure.
He had hired a carriage by the day, with a coachman, from the
remise. On one of the quais the coachman, by furious driving,
wilfully damaged some crockery-ware exposed to sale by an old
woman. She screamed ; a sergent de ville came up, the carriage
was stopped, and Milord Anglais was called upon to pay a large
sum of money by way of amende. He denied his liability, and
insisted that, according to the doctrine of Macmanus v. Cricket,
1 East, 106, the only remedy was against the coachman himself,
or against the keeper of the remise ; but he was cast, and had to
pay damages and costs.
The Chief Justice deserves great credit for the exercise of his
influence in the appointment of puisne Judges. Lord Chancellor
Eldon was in the habit of consulting him on this subject, and of
being guided by his advice. Free from all petty jealousy, he chose
for his colleagues Bayley, Dampierre, Holroyd, and Abbott.*
He never appeared before the world as an author, and, from
the want of attention to English composition which prevails at
English seminaries, he was signally unskilful in it. In his written
judgments, as they appear in the law reports, he betrays an utter
disregard of rhythm, and his hereditary love of parenthesis is
constantly breaking out. f
* I have had the opportunity of reading the letters between Lord Eldon and
Lord Ellenborough about the appointment of Judges ; but such correspondence
ought to remain for ever " secret and confidential."
t It is related of his father, the Bishop of Carlisle, that in passing a work
through the press, the proof-sheets, which were promised to be sent regularly,
soon stopped, and that going to the printing office to remonstrate, the Devil
said to him, " Please you, my Lord, your Lordsliip's MS. has already used up
all our parentheses, but we have sent to the letter founder's for a ton extra,
which we expect to be sent in next week."
LIFE OF LORD ELLENBOEOUGH. 237
It was in sarcastic effusions from the bench, and in jocular CHAP.
quips when mixing in society on equal terms with his com- * , '
panions, that he acquired his most brilliant renown. West-
minster Hall used to abound with hisfacetice, and some of them
(perhaps not the best) are still cited.
A young counsel who had the reputation of being a very im- His facetiae.
pudent fellow, but whose memory failed him when beginning to
recite a long speech which he had prepared, having uttered
these words — " The unfortunate client who appears by me — the
unfortunate client who appears by me — My Lord, my unfor-
tunate client " — the Chief Justice interposed, and almost whis-
pered in a soft and encouraging tone — " You may go on, Sir —
so far the Court is quite with you."
Mr. Preston, the famous conveyancer, who boasted that he
had answered 50,000 cases, and drawn deeds which would go
round the globe, if not sufficient to cover the whole of its sur-
face, having come special from the Court of Chancery to the
King's Bench to argue a case on the construction of a will,
assumed that the Judges whom he addressed were ignorant of
the first principles of real property, and thus began his erudite
harangue — " An estate m/ee simple, my Lords, is the highest
estate known to the law of England." " Stay, stay," said the
Chief Justice, with consummate gravity, " let me take that
down." He wrote and read slowly and emphatically, " An
estate — in fee simple — is — the highest estate — known to — the
law of England :" adding, " Sir, the Court is much indebted
to you for the information." * There was only one person pre-
* Chief Justice Gibbs once told me this anecdote of Serjeant Vaughan, who,
although a popular advocate and afterwards made a Judge, was utterly ignorant
of the rudiments of the law of real property, and terribly alarmed lest he should
commit some absurd blunder. " He was arguing a real property case before
me, of which he knew no more than the usher, and he laid down Preston's
proposition that ' an estate in fee simple is the highest estate known to the law
of England.' I, wishing to frighten him, pretended to start, and said, ' What is
your proposition, brother Vaughan ? ' when, thinking he was quite wrong and
wishing to get out of the scrape, he observed, ' My Lord, I mean to contend
that an estate in fee simple is one of the highest estates known to the law of
England — that is, my Lord, that it may be under certain circumstances— and
238 KEIGN OF GEOEGE III.
sent who did not perceive the irony. That person having not
yet exhausted the Year Books, when the shades of evening were
closing upon him, applied to know when it would be their
Lordships pleasure to hear the remainder of his argument?
Lord Ellenborough. — " Mr. Preston, we are bound to hear you
out, and I hope we shall do so on Friday — but, alas ! pleasure
has been long out of the question."
Another tiresome conveyancer having, towards the end of
Easter Term, occupied the Court a whole day about the merger
of a term, the Chief Justice said to him, " I am afraid, Sir, the
TERM, although a long one, will merge in your argument."
James Allan Park, who had the character of being very
sanctimonious, having in a trumpery cause affected great so-
lemnity, and said several times in addressing the Jury, " I call
Heaven to witness — as God is my Judge," &c. — at last Lord
Ellenborough burst out — " Sir, I cannot allow the law to be thus
violated in open Court. I must proceed to fine you for profane
swearing — five shillings an oath." The learned counsel, whose
risibility was always excited by the jokes of a Chief Justice, is
said to have joined in the laugh created by this pleasantry.
Mr. Caldecot, a great Sessions lawyer, but known as a dread-
ful bore, was arguing a question upon the rateability of certain
lime quarries to the relief of the poor, and contended at enor-
mous length that, " like lead and copper mines, they were not
rateable, because the lime-stone in them could only be reached
by deep boring, which was matter of science." Lord Ellen-
borough, C. J. — " You will hardly succeed in convincing us, Sir,
that every species of boring is ( matter of science.* "
A declamatory speaker (Randle Jackson, counsel for the
E. I. Company), who despised all technicalities, and tried to
storm the Court by the force of eloquence, was once, when
sometimes is so.' " But the learned Serjeant had good qualities, which ren-
dered him very popular, — although when he was promoted to the Bench by
the interest of his brother Sir Henry Halford, physician to George IV., it was
said by the wags that he had a better title than any of his brethren, being
a Judge by prescription.
LIFE OF LORD ELLENBOHOUGH. 239
uttering these words, " In the book of nature, my Lords, it is
written " — stopped by this question from the Chief Justice, " Will
you have the goodness to mention the page, Sir, if you please ? "
A question arose, whether, upon the true construction of
certain tax acts, mourning coaches attending a funeral were
subject to the post-horse duty? Mr. Gaselee, the counsel
for the defendant, generally considered a dry special pleader,
aiming for once at eloquence and pathos, observed — " My
Lords, it never could have been the intention of a Christian
legislature to aggravate the grief felt by us in following to the
grave the remains of our dearest relatives, by likewise imposing
upon us the payment of the post-horse duty." Lord Ellen-
borough, C. J. — " Mr. Gaselee, may there not be some danger
in sailing up into these high sentimental latitudes ? "
A very doubtful nisi p?°ius decision being cited before him,
he asked, " Who ruled that ? " Being answered " The Chief
Justice of the Isle of Ely " — he replied — " Cite to me the deci-
sions of the Judges of the land — not of the Chief Justice of the
Isle of Ely " — adding in a stage whisper, " who is only fit to
rule — a copybook." *
A Quaker coming into the witness box at Guildhall without a
broad brim or dittoes, and rather smartly dressed, the crier put
the book into his hand and was about to administer the oath,
when he required to be examined on his affirmation. Lord
Ellenborough asking if he was really a Quaker, and being
answered in the affirmative, exclaimed, " Do you really mean to
impose upon the Court by appearing here in the disguise of a
reasonable being ? "
A witness dressed in a fantastical manner having given very
rambling and discreditable evidence, was asked in cross-ex-
amination, " What he was ? " Witness. — " I employ myself as
a surgeon." Lord Ellenborough, C. J. — "But does any one
else employ you as a surgeon ? "
A volunteer corps of Westminster shopkeepers, while exer-
* This was Christian, a far-away cousin of Lord Ellenborough.
240 KEIGN OF GEOEGE III.
cising in Tothill Fields, being overtaken by a violent storm of
wind and rain, took shelter in Westminster Hall, while he was
presiding in the adjoining Court of King's Bench. Lord Ellen-
borough^ C. J. — " Usher, what is the meaning of that disturb-
ance ? " Usher. — " My Lord, it is a volunteer regiment exer-
cising, your Lordship." Lord Ellenborough^ C. J. — " Exercising !
We will see who is best at that. Go, Sir, to the Regiment, and
inform it, that if it depart not instantly I will commit it to the
custody of a tipstaff." The noble and learned Lord seems to
have forgotten his own military enthusiasm when he exercised
in the awkward squad of the " DEVIL'S OWN."
At a Cabinet dinner of " All the Talents " Lord being
absent, and some one observing that he was seriously ill, and
like to die : " Die ! " said Lord Ellenborough — " why should
he die ? What would he get by that ? "
Henry Hunt, the famous demagogue, having been brought
up to receive sentence upon a conviction for holding a seditious
meeting, began his address in mitigation of punishment, by
complaining of certain persons who had accused him of " stirring
up the people by dangerous eloquence.''1 Lord Ellenborough^
C. J. (in a very mild tone). — " My impartiality as a Judge
calls upon me to say, Sir, that in accusing you of that they do
you great injustice."
The following dialogue between the same Chief Justice and
the same demagogue we have on the authority of Mr. Justice
Talfourd, who was present at it :
" Lord Ellenborough had come down after an interval, during
which his substitutes had made slow progress, and was rushing
through the list like a rhinoceros through a sugar plantation, or a
Common Serjeant in the evening through a paper of small larcenies ;
but just as he had non-suited the plaintiff in the twenty-second
cause, which the plaintiff's attorney had thought safe till the end of
a week, and was about to retire to his turtle, with the conviction of
having done a very good morning's work, an undeniable voice ex-
claimed, * My Lord ! ' and Mr. Hunt was seen on the floor with his
peculiar air — perplexed between that of a bully and a martyr. The
LIFE OF LOKD ELLENBOROUGH. | 241
Bar stood aghast at his presumption; the ushers' wands trembled
in their hands ; and the reporters, who were retiring after a very
long day, during which, though some few City firms had been
crushed into bankruptcy, and some few hearts broken by the results
of the causes, they could honestly describe as ' affording nothing of
the slightest interest except to the parties,' rushed back and seized
their note-books to catch any word of that variety of rubbish which
is of ' public interest.' My Lord paused and looked thunders, but
spoke none. ' I am here, my Lord, on the part of the boy Dogood,'
proceeded the undaunted Quixote. His Lordship cast a moment's
glance on the printed list, and quietly said, ' Mr. Hunt, I see no
name of any boy Dogood in the paper of causes/ and turned
towards the door of his room. ' My Lord ! ' vociferated the orator,
f am I to have no redress for an unfortunate youth ? I thought
your Lordship was sitting for the redress of injuries in a court of
justice.' — ' O no, Mr. Hunt/ still calmly responded the Judge — ' I
am sitting at Nisi Prius ; and I have no right to redress any injuries,
except those which may be brought before the jury and me, in the
causes appointed for trial.' — ' My Lord,' then said Mr. Hunt, some-
what subdued by the unexpected amenity of the Judge, ' I only
desire to protest.' — ; Oh, is that all?' said Lord Ellen borough :
' by all means protest, and go about your business ! ' So Mr. Hunt
protested and went about his business ; and my Lord went unruffled
to his dinner, and both parties were content." *
While the old Lord Darnley, against whom Lord Ellen-
borough had a special spite, was making a tiresome speech in
the House of Lords, he rose up and said, with that quaint and
dry humour which rarely suffered his own muscles to relax, but
loud enough to be heard by three-fourths of the Peers present,
" I am answerable to God for my time, and wbat account can I
give at the day of judgment if I stay here any longer ?"
A very tedious Bishop having yawned during his own speech,
Lord Ellenborough exclaimed, " Come, come, the fellow shows
some symptoms of taste, but this is encroaching on our
province."
Of Michael Angelo Taylor, who, though very short of stature,
* Talfourd's ' Vacation Rambles.'
VOL. III.
242
REIGN OF GEOEGE III.
CHAP. wag wejj k^ an(j thought himself a very great man — Lord
Ellenborough said, " his father, the sculptor, had fashioned him
for a pocket Hercules"*
At the coming in of the "TALENTS" in 1806, Erskine him-
self pressed the Great Seal upon Ellenborough, saying that " he
would add to the splendour of his reputation as Lord Chancellor."
Ellenborough knowing that on his own refusal, Erskine was to
be the man, exclaimed, " How can you ask me to accept the
office of Lord Chancellor when I know as little of its duties as
you do?"*
Being told that the undertaker had made a foolish mistake in
the hatchment put up on Lord Kenyon's house after the death
of that frugal Chief Justice, MORS JANUA VITA, his successor
exclaimed, "No mistake at all, Sir — there is no mistake — it
was by particular directions of the deceased in his will — it saved
the expense of a diphthong ! "
From these sayings it might be thought that he was uniformly
cynical and even acrimonious, but he spoke rather from a love
of fun than from any malignity, and he had in him a large
stock of good humour and bonhomie, which, producing little
epigrammatic point, is in danger of being forgotten. He was
an extremely agreeable companion. " The pungency of his
wit," said an old class-fellow, " his broad, odd, sometimes gro-
tesque jokes, his hearty merriment, which he seemed to enjoy,
rather by a quaint look and indescribable manner than by any
audible laughing, altogether formed a most lively and delight-
ful person, whether to hear or see."
In domestic life Lord Ellenborough was exceedingly amiable,
though on rare occasions a little hasty. It was reported that
Lady Ellenborough, by doing what all ladies then considered
very innocent, trying to smuggle some lace, caused the family
coach to be seized as forfeited, and that he calmly said, " We
have only to pay the penalty." But if Rogers is to be believed,
domestic
* Ex relations the present Earl of Ellenborough.
LIFE OF LORD ELLENBOROUGH. 243
he did not show such equanimity when he thought that a band-
box had been improperly put into the carriage by her Ladyship.
The author of the ' Pleasures of Memory ' used often to relate
the following anecdote :
"Lord Ellenborough was once about to go on the circuit,
when Lady Ellenborough said that she should like to accompany
him. He replied that he had no objection, provided she did not
encumber the carriage with bandboxes, which were his utter
abhorrence. During the first day's journey, Lord Ellenborough,
happening to stretch his legs, struck his foot against something
below the seat. He discovered that it was a bandbox. Up
went the window and out went the bandbox. The coachman
stopped, and the footmen, thinking that the bandbox had tumbled
out of the window by some extraordinary chance, were going to
pick it up, when Lord Ellenborough furiously called out, ' Drive
on ! ' The bandbox accordingly was left by the ditch- side.
Having reached the county-town where he was to officiate as
Judge, Lord Ellenborough proceeded to array himself for his
appearance in the Court-house. ' Now,' said he, * where 's my
wig — where is my wig ? ' ' My Lord,' replied his attendant,
' it was thrown out of the carriage window.' "
Lord Ellenborough was above the middle size, and sinewy, His figure
but his figure was ungainly, and his walk singularly awkward.
He moved with a sort of semi-rotatory step, and his path to the
place to which he wished to go was the section of a parabola.
When he entered the court he was in the habit of swelling out
his cheeks by blowing and compressing his lips, and you would
have supposed that he was going to snort like a war horse pre-
paring for battle. His spoken diction, although always scholar-
like, rather inclined to the sesquipedalian ; his intonation was deep
and solemn, — and certain words he continued through life to pro-
nounce in the fashion he had learned from his Cumbrian nurse.
These peculiarities, which were of course well known to the public,
made him a favourite subject for mimicry. Charles Mathews, the
* Table Talk of Samuel Eogers, p. 197.
R2
244 REIGN OF GEORGE III.
celebrated comedian, who had unrivalled felicity of execution
in this line, — to the infinite delight of a crowded theatre,
of'thfchief brought the Lord Chief Justice on the stage in the farce of
Justice by LOVE, LAW, AND PHYSIC. His Lordship did not appear as one
Mathews of the Dmmojis Persona^ but Flexible, the Barrister (personated
dian!0" by Mathews), in giving an account of a trial in which he had
been counsel, having very successfully taken off Erskine and
Garrow, — when he came to the summing up, in look, gesture,
language, tone, and accent, so admirably represented the Lord
Chief Justice of the King's Bench, that the audience, really
believing they were in the presence of the venerable Judge, re-
mained in deep and reverential silence till he had concluded,
and then after many rounds of applause made him give the
charge three times over. Mrs. Mathews, in her entertaining
6 Memoirs of her Husband,' says, " When he came to the Judge's
summing up, the effect was quite astounding to him, for he had
no idea of its being so received. The shout of recognition and
enjoyment indeed was so alarming to his nerves, so unlike all
former receptions of such efforts, that he repented the attempt
in proportion as it was well taken, and a call for it a second
time fairly upset him, albeit not unused to loud applause and
approbation." The Lord Chief Justice was exceedingly shocked
to find all the papers next morning filled with comments on his
charge in the famous case of Litigant v. Camphor, and in a fury
he wrote to the Lord Chamberlain, requiring his interposition,
and observing, that since the ' Clouds of Aristophanes,' in which
Socrates was ridiculed, there had not been such an outrage on
public decency. The Lord Chamberlain appears immediately
to have effected his object, in a private audience with Mathews,
by a courteous representation, without even a hint of authorita-
tive proceedings. According to Mrs. Mathews, " his Lord-
ship was soon satisfied that he had no occasion to use any argu-
ment to influence the performer, for Mr. Mathews proved to
him at once that he had fully resolved, from the moment he
found his imitation received with such extraordinary vehemence,*
LIFE OF LORD ELLENBOROUGH. 245
not to repeat it." Notwithstanding urgent and vociferous
requests and complaints of the audience at subsequent repre-
sentations of LOVE, LAW, AND PHYSIC, the Judge's charge was
heard no more in public. But soon afterwards Mathews received
an invitation from the Prince Regent to Carlton House, and in
the course of the evening H.R.H. began to speak of the extra-
ordinary sensation caused by Flexible }s recent imitation, adding
that he would have given the world to have been present.
Mathews well understood the royal hint, but was much em-
barrassed, for, glancing his eye round, it fell upon the Lord
Chamberlain, who was looking particularly grave. The Prince
observing Mathews's hesitation, said, " Oh don't be afraid ;
we 're all tiled here. Come, pray oblige me. I 'm something
of a mimic myself. My brother here (turning to the Duke of
York) can tell you that my Chancellor Thurlow is very tolerable,
only that I do not like to swear up to the mark. It was not so
well that you should produce Chief Justice Ellenborough on the
public stage, but here you need have no scruples." " The
Prince was in raptures," says Mrs. Mathews, " and declared
himself astonished at the closeness of the imitation, shutting his
eyes while he listened to it with excessive enjoyment, and many
exclamations of wonder and delight, such as Excellent ! Per-
fect ! It is he himself! The Duke of York manifested his
approval by peals of laughter, and the Princes afterwards con-
versed most kindly and agreeably on the subject with my hus-
band and the high personages present."
Posterity may have a favourable and correct notion of Lord His portrait
Chief Justice Ellenborough, from a portrait of him by Sir rence.
Thomas Lawrence, in his judicial robes, which, covering his
awkward limbs, represents a striking likeness of him, and yet
makes him appear dignified by portraying his broad and com-
manding forehead, his projecting eyebrows, dark and shaggy,
his stern black eye, and the deep lines of thought which marked
his countenance.
He lived in a handsome style suitable to his station and the
246 KEIGN OF GEOKGE III.
CHAP, splendid emoluments which then belonged to the Chief Justice-
' r- — ' ship of the King's Bench. At first these did not exceed 8000Z.
H^styie of a year^ ^ Qn ^ ^^ Qf ^Y Way, appOnlted by Lord
Mansfield, the great office of Chief Clerk of the Court of King's
Bench fell in, which formed a noble provision for him and his
family.* Soon after he was made Chief Justice he left
Bloomsbury Square for a magnificent house in St. James's
Square. To give an idea of its size to an old lawyer who
lived in Chancery Lane, and to whom he was describing it, he
said, " Sir, if you let off a piece of ordnance in the hall, the
report is not heard in the bed rooms." t He likewise bought
a beautiful villa at Roehampton, which might almost rival
Lord Mansfield's at Caen Wood. Nevertheless from fees and
offices the profits of which he was entitled to turn to his own
use, he left above 240,0007. to his family, besides the office of
Chief Clerk of the King's Bench, commuted to his son for
7000?. a year during life.
His Five sons and five daughters survived him. He bequeathed
children. 2000/. a-year to his widow, and 15,OOOZ. to each of his younger
children. The eldest, to whom the residue and the great office
fell, is the present Earl of Ellenborough, one of the most distin-
guished statesmen of the nineteenth century, — who, by his elo-
quence and his administrative powers, has added fresh splendour
to the name which he bears.
Charles, the second son, having risen by his own merit to be
Recorder of London, and Member of Parliament for the Uni-
versity of Cambridge, died at an early age.
I have great pleasure in concluding this Memoir of Lord
Chief Justice Ellenborough with a few artless but sweet and
affecting lines from a Monody on his death, written by his fa-
* It is said that he heard of Way's death while he was riding in. Hyde Park,
and that he immediately dismounted at a house in Knightsbridge and executed
a deed, filling up the office, lest he should die before appointing to it.
t This was the first instance of a common law Judge moving to the " West
End." Hitherto all the common law Judges had lived within a radius of half
a mile from Lincoln's Inn ; but now they are spread over the Regent's Park,
Hyde Park Gardens, and Kensington Gore.
LIFE OF LOKD ELLENBOKOUGH. 247
vourite daughter ELIZABETH, — then a little girl in the school- CHAP,
room, — now the LADY COLCHESTER :
" Ye who have mourn'd o'er life's departing breath,
And view'd the sad and solemn scene of death,
Whilst hanging still o'er him whose soul is fled,
Have ye not felt the awful, silent dread,
Which strikes the soul as we in vain deplore
His loss, whose presence ne'er can cheer us more !
Those eyes are closed, whose fond approving glance
Could once the bliss of each gay joy enhance ;
Those lips are seal'd — where truth for ever reign'd,
Where wisdom dwelt, and piety unfeign'd !
* * * *
Such was the father whom we now bewail,
But what can tears or poignant grief avail ?
Can they recall him to this earth again ?
False, flatt'ring hope ! ah ! wherefore art thou vain ?
* * * *
Rais'd above earth and ev'ry earth-born care,
For Heav'n's eternal joys our souls prepare,
Till ev'ry feeling, taught on high to soar,
Our hearts shall taste of bliss unknown before.
"St. James's Square, Dec. 1818."
248
REIGN OF GEORGE III.
CHAPTER LII.
CHAP.
LII.
Disadvan-
tages and
advantages
in the task
of writing
this Me-
moir.
LIFE OF LORD TENTERDEN, FROM HIS BIRTH TILL HIS ELEVATION TO THE
BENCH.
THE subject of this memoir seems to offer an unpromising task
to the biographer. Lord Tenterden was of very obscure origin ;
scarcely an anecdote remains of his schoolboy days ; his uni-
versity career, though highly creditable, was not marked by
any extraordinary incidents ; while at the bar he was more dis-
tinguished by labour than brilliancy ; he did not even attain the
easy honour of a silk gown ; till raised to the Bench he never
held any office more distinguished than that of " Devil to the
Attorney-General ;" he neither was, nor wished to be, a mem-
ber of the House of Commons ; when made a puisne Judge he
was believed to have reached the summit of his ambition ; after-
wards unexpectedly placed in the House of Lords, his few
speeches there were distinguished for flatness or absurdity ; he
was dull in private life as well as in public ; and neither crimes
nor follies could ever be imputed to him. Yet is his career
most instructive, and by a writer who does not depend upon
wonder-stirring vicissitudes, it might be made most interesting.
The scrubby little boy who ran after his father, carrying for
him a pewter basin, a case of razors and a hairpowder bag,
through the streets of Canterbury, became Chief Justice of
England, was installed among the Peers of the United King-
dom, attended by the whole profession of the law, proud of
him as their leader ; and when the names of orators and states-
men illustrious in their day have perished with their frothy
declamations, Lord Tenterden will be respected as a great
magistrate, and his judgments will be studied and admired.
Although there be something exciting to ridicule in the
manipulations of barbers, — according both to works of fiction
LIFE OF LORD TENTEEDEN. 249
and to the experience of life, there is no trade which furnishes CHAP.
such striking examples of ready wit, of entertaining information, » ^ — '
and of agreeable manners.* This superiority of barbers may
have at first arisen from their combination of bleeding and bone-
setting with shaving and haircutting — but since they ceased to
act as surgeons it can only be accounted for by their being
admitted to familiar intercourse with their customers in higher
station, whom they daily visit, — and by the barber's shop being
the grand emporium for the circulation of news and scandal.
At the corner of a narrow street, opposite to the stately Lor(1 Ten-
terden's
western portal of the Cathedral of Canterbury, stood a small father and
house, presenting in front of it a long pole, painted of several
colours, — with blocks in the window, some covered with wigs and
some naked, — a sign over the door, bearing the words "ABBOTT,
HAIRDRESSER," — and on the sides of the door " Shave for a
penny — hair cut for twopence, and fashionably dressed on rea-
sonable terms." This shop was kept by a very decent, well-
behaved man, much respected in his neighbourhood, — who had
the honour to trim the whole Chapter and to cauliflower their
wigs as they were successively in residence, — and who boasted
that he had thrice prepared his Grace the Archbishop for his
triennial charge to the clergy of the diocese. But he was not
the pert, garrulous, bustling character which novelists who in-
troduce heroes of the razor and scissors love to portray. He
* One of the most intimate friends I have ever had in the world was Dick
Danby, who kept a hairdresser's shop under the Cloisters in the Inner Temple.
I first made his acquaintance from his assisting me, when a student at law, to
engage a set of chambers ; he afterwards cut my hair, made my bar wigs, and
assisted me at all times with liis valuable advice. He was on the same good
terms with most of my forensic contemporaries. Thus he became master of all
the news of the profession ; and he could tell who were getting on and who
were without a brief, — who succeeded by their talents and who hugged the
attorneys, — who were desirous of becoming puisne judges and who meant to try
their fortune in parliament, — which of the Chiefs was in a failing state of health,
and who was next to be promoted to the collar of SS. Poor fellow ! he died
suddenly, and his deatli threw a universal gloom over Westminster Hall, —
unrelieved by the thought that the survivors who mourned him might pick up
some of his business, — a consolation which wonderfully softens the grief felt
for the loss of a favourite Nisi prius leader.
250
KEIGN OF GEORGE III.
CHAP.
LII.
A.D. 1762.
Birth of
Lord Ten-
terden.
His early
educatioa.
Lord Ten-
terdcn at
Canterbury
school.
was depicted by one who had known him well for many years
as " a tall, erect, primitive-looking man, with a large pig-tail,
which latterly assumed the aspect of a heavy brass knocker of a
door."* From his clerical connection he had a profound venera-
tion for the Church, which we shall see was inherited by his
offspring. His wife, in her humble sphere, was equally to be
praised, and without neglecting her household affairs, she was
seldom absent from the early service of the Cathedral.
Struggling with poverty, their virtues were rewarded with a
son, who thus modestly recorded their merits on his tomb,
" Patre vero prudenti, matre pia ortus."
This was Charles, their youngest child, the future Chief Justice
of England, who was born on the 7th of October, 1762.
His infancy offered no omens or indications of his future
eminence. Though always steady and well behaved, he was
long considered a very dull lad, and it is said that his father,
who intended that he should succeed him as a barber, used to
express apprehensions lest he should be obliged to put the boy
to another trade requiring less genius. Having learned to read
at a dame's school, little Charley used to be employed in carrying
home the wigs that had been properly frizzed and pomatumed,
and he would accompany his father on the morning rounds to
be made in the Cathedral close and in other parts of the city.
We have transmitted to us a graphic description of the old
gentleman " going about with the instruments of his business
under his arms, and attended frequently by his son Charles, a
youth as decent, grave, and primitive-looking as himself." t
But the youth's obscure destiny, which seemed inevitable, was
suddenly changed to one highly intellectual, and he became nearly
the finest classical scholar and the very best lawyer of his
generation in England. This he owed to his admission on the
foundation of the King's School, connected with Canterbury
Cathedral, which had been founded by Henry VIII. and was
then taught by Dr. Osmund Beauvoir, who was not only a very
* ' Gentleman's Magazine.' f Ibid.
LIFE OF LORD TENTERDEN. 251
learned man but an admirable teacher, and eager to discover CHAP,
and to encourage talent in the boys under his care, whether of
high or of humble degree. Young Abbott, notwithstanding his
demureness, was soon found out by this discriminating master,
and as great pains were bestowed upon him as if he had been the
son of a Duke or an Archbishop. We have interesting por-
traits of him in his boyhood by two of his schoolfellows. Says
Sir Egerton Brydges, who pretended to be a descendant of the
Plantagenets, of the Tudors, and of Charlemagne :
" From his earliest years he was industrious, apprehensive,
regular and correct in all his conduct — even in his temper, and
prudent in everything. I became acquainted with him in July,
1775, when I was removed from Maidstone to Canterbury
school. I was about six or seven weeks his junior in age, and
was placed in the same class with him, in which, after a short
struggle, I won the next place to him, and kept it till 1 quitted
school for Cambridge in autumn, 1780, in my eighteenth year.
Though we were in some degree competitors, our friendship was
never broken or cooled. He always exceeded me in accuracy,
steadiness, and equality of labour, while I was more fitful,
flighty, and enthusiastic. He knew the rules of grammar
better, and was more sure in any examination or task. He
wrote Latin verses and prose themes with more correctness,
while I was more ambitious and more unequal. There was
the same difference in our tempers and our tastes. He was
always prudent and calm ; I was always passionate and restless.
Each knew well wherever the other's strength lay, and yielded
to it."
" I remember him well," added another contemporary, who rose
to high preferment in the Church, — " grave, silent, and demure ;
always studious, and well behaved ; reading his book instead
of accompanying us to play, and recommending himself to all
who saw and knew him by his quiet and decent demeanour. I
think his first rise in life was owing to a boy of the name of
Thurlow, an illegitimate son of the Lord Chancellor, who was
252
REIGN OF GEORGE III.
CHAP.
LII.
Danger he
ran in his
fourteenth
year.
at Canterbury school with us. Abbott and this boy were well
acquainted, and when Thurlow went home for the holidays he
took young Abbott with him. He thus became known to Lord
Thurlow, and was a kind of helping tutor to his son ; and I
have always heard and am persuaded that it was by his Lord-
ship's aid he was afterwards sent to college. The clergy of
Canterbury, however, always took great notice of him, as they
knew and respected his father."
In his fourteenth year our hero ran a great peril, and met
with a deep disappointment, — which may be considered the true
cause of his subsequent elevation. The place of a singing-boy
in the Cathedral becoming vacant, old Abbott started his son
Charles as a candidate to fill it. The appointment would
have secured to him a present subsistence, with the prospect of
rising to 707. a year, which he and his family considered a
wealthy independence for him. His father's popularity among
the members of the Chapter was so great that his success was
deemed certain, but from the huskiness of his voice objections
were made to him, and another boy was preferred, who grew
old enjoying the stipend which young Abbott had eagerly
counted upon. Mr. Justice Richardson, the distinguished Judge,
used to relate that going the Home Circuit with Lord Ten-
terden, they visited the Cathedral at Canterbury together,
when the Chief Justice, pointing to a singing man in the choir,
said, " Behold, brother Richardson, that is the only human being
I ever envied : when at school in this town we were candidates
together for a chorister's place ; he obtained it ; and if I had
gained my wish, he might have been accompanying you as
Chief Justice, and pointing me out as his old schoolfellow, the
singing man."
However, the disappointed candidate, instead of abandoning
himself to despair, applied with still greater diligence to his
studies, and his master, proud of his proficiency, showed his
verses to all the clergy in the neighbourhood, and to others
LIFE OP LORD TENTERDEN. 253
whom he could prevail upon to read them, or to hear them
recited— boasting that the son of the Canterbury barber was
qualified to carry off a classical prize from any aristocratic
versifier at Westminster, Winchester, or Eton.
The crisis of the young- man's fate occurred as he reached Q. whether
he was to be
the ao-e of seventeen. He was then Captain of the school, and a hairdresser
it was necessary that some course should be determined upon
by which he was to earn his bread. His father proposed that
he should be regularly bound apprentice to the trade in which
he had been initiated from his infancy, and for which his
capacity could no longer be questioned. This not only horrified
Dr. Beauvoir, but caused a shock to the whole Chapter and to
all the more cultivated inhabitants of Canterbury who had
heard of the fame of their young townsman, — and a general wish
was entertained that he might be sent to the University. A
sum sufficient for his outfit was immediately collected in a
manner calculated to prevent his feelings being hurt by hear-
ing of the assistance thus rendered to him ; and the trustees
of his school unanimously conferred upon him a small exhibi-
tion in their gift, which happened to be then vacant : but this was
not sufficient for his maintenance while he remained an under-
graduate, and a delicacy existed about the supply being raised
by an annual subscription of individuals. For some days there
was a danger of the plan so creditable to Canterbury being
entirely defeated, and the indenture binding the future Chief
Justice to the ignoble occupation of shaving being signed, sealed,
and delivered, — when the trustees of the school came to a vote,
that they had power to increase the exhibition from the funds of
the school — and they did prospectively raise it for three years to
a sum which, with rigid economy, might enable the object of
their bounty to keep soul and body together till he should obtain
his Bachelor's degree ; then, by taking pupils or some other expe-
dient, it was hoped that he might be able to provide for himself.
The bounty of individuals was carefully concealed from him,
but at a subsequent period of his life, when he had been placed
254
REIGN OF GEORGE III.
CHAP.
LII.
A. D. 1781.
He is sent
to the Uni-
versity,
as a Judge on the Bench, he showed that he well knew the
obligation under which he lay to the trustees. Attending a
meeting of that body of which he had been elected a member,
among the " AGENDA," there was " to consider the application
from an exhibitioner of the school now at Oxford for an increase
of his allowance." The Secretary declared that after a diligent
search for precedents only one could be found, which had oc-
curred many years before. " That student was myself," said the
learned Judge, and he immediately supplied the required sum
from his own private purse.
When it was announced to him that he was to be sent to the
University he was much pleased, without being elated ; for
while he escaped the drudgery and degradation of a trade not
considered so reputable as that of a grocer, from which Lord
Eldon had shrunk when in a very destitute condition, he fore-
saw that there might be much mortification in store for him, and
that although all knowledge was to be within his reach, he might
ere long find it difficult to provide for the day passing over him.
He had likewise serious misgivings as to how he should appear
as a gentleman among gentlemen. Hitherto he had only been
noticed as the barber's son, and in the pressure of business on a
Saturday night, when he carried home any article to a customer,
he had been well pleased to receive by way of gratuity a shilling
or even a smaller coin. Not entering as a servitor, he was now
to sit at table and to associate on a footing of equality with the
sons of the prime nobility of England. While struggling for-
ward in life he used to dread any allusion to such topics, but in
his latter days he would freely talk of his first journey from
Canterbury to Oxford, and the suddenness of his transition into
a new state of existence. He was, on this occasion, accom-
panied by a prebendary of the Cathedral, who was a Corpus
man, and who acted the part of a father to him.*
* Samuel Pepys, the famous Diarist, who was the son of a tailor, describes
his great embarrassment when, become Secretary to the Admiralty and a
favourite of the King and Duke of York, he met a gentleman in reduced cir-
cumstances to whom, when a boy, he used to carry home fine suits of clothes.
Lord
LIFE OF LOUD TENTERDEN. 255
The following is a copy of his admission to his college, and CHAP.
• • LII.
of his matriculation : v— -v '
" March 21st, 1781. Charles Abbott, Kent Scho."
" Termino Sti. Hilarii, 1781.
Martii 24°.
" C. C. C. Carolus Abbott, 18, Joannis de Civitate Cantuariensi
Pleb. Fil." *
He tested his proficiency in classical literature by becoming He obtains a
a candidate for a vacant scholarship. Of this contest we at Corpus?
have an interesting account in a letter written by him to his
schoolfellow, Sir Egerton Brydges, who was then entered at
Queen's College, Cambridge :
" Oxford, Sunday, March 18, 1781.
" DEAR EGERTON,
" I have been a week in Oxford, and almost finished the
examination ; the day of election is next Tuesday. I cannot
look forward without great dread, for my expectations of success
are by no means sanguine As yet I have kept to my
resolution of drinking nothing. How long further I shall I
know not, but I hope my pride will soon serve to strengthen it.
I wish Tuesday were over."
" Monday Night.
" This has been a heavy day indeed. I would not pass another
in such anxiety for two scholarships. Disappointment would
be easier borne than such a doubtful situation. It is a great
pleasure to me to be able to reflect that there is one person who
will feel for me. What happiness would it have been to me
had we had the good fortune to be both of the same university !
Our examination has been very strict Good night."
" Tuesday, 12 o'clock.
" At last it is all over, and— — Now your expectations are
at the highest 1 am Guess elected. You will see
from my manner of writing that I am very much pleased — and
Lord Tenterden must have had such rencontres, but was never known to refer
to them.
* " A true copy,
" PHILIP BLISS,
" Keeper of the Archives of the University."
256 KEIGN OF GEORGE III.
C HAP. s0 in truth I am. The President said to me (but don't mention
v ^J — i it to any one) that I had gained it entirely by my merit — -that
A.D. 1781. I nad made a very good appearance, and so had all the other
candidates.
" Yours most affectionately,
" C. ABBOTT."
The following shows that he then felt much more exultation
than on the day of his being made Chief Justice of England,
when I myself observed him repeatedly yawn on the bench from
listlessness :
" C. C. C., April 3, 1781.
" Yes, my dear Egerton, it does give me the most heartfelt
pleasure to hear how kindly my friends rejoice in my success.
Believe me, Egerton, the chief pleasure that I feel on this occa-
sion is reading my letters of congratulation. I needed nothing
to assure me of your friendship. Had any proof been wanting,
your kind letter would have been sufficient. The examination
was indeed a tedious piece of work, but I would undergo twice
the trouble for the pleasure of knowing that I had answered
the expectations of my friends. I have received two letters
from my dearest mother, in which she gives me an account how
sincerely all my friends at Canterbury have congratulated her
on my success — and friends so much superior to our humble
condition, that she says, ' such a universal joy as appeared on
the occasion I believe hardly ever happened in a town left by
a tradesman's son.' Who would not undergo any labour to
give pleasure to such parents ? . . . . You have heard me
wish that I had never been intended for the university. It
was impious ; it was ungrateful : I banish the thought for ever
from my heart. Not that I foresee much pleasure in a college
life, but I know that my present situation is perhaps the only
comfort to those whose age and misfortunes have rendered some
alleviation of care absolutely necessary. Pardon the expression
of these sentiments to you, and consider that they flow from
the breast of a son.
" What a dissatisfied wretch I am ! But a little while past
to be a scholar of Corpus was the height of my ambition ;
that summit is (thank Heaven) gained — when another and
LIFE OF LOED TENTERDEN. 257
another appears still in view. In a word, I shall not rest easy C HAP.
till I have ascended the rostrum in the theatre." \ y ' »
A.D. 1783.
His conduct during the whole of his academical career was His diii-
most exemplary. Avoiding all unnecessary expense he con-
trived always to preserve a decent appearance, and he gradually duct>
conquered the prejudice created against him by the whispers
circulated respecting his origin and early occupations. The
college tutor was Mr. Burgess, afterwards Bishop of Salisbury,
who speedily discovered his merit and steadily befriended
him.
In the latter part of the eighteenth century Oxford education
was at the lowest ebb, and a respectable degree might be taken
by answering to the question, " Who was the founder of this
university ? " ALFRED THE GREAT ! The study of mathematics
had fallen into desuetude like that of alchymy. Young Abbott,
therefore, had no opportunity of crossing the Asses' Bridge, and
through life he remained a stranger to the exact sciences. But he
was saved by the love of classical lore which he brought with
him from Canterbury, and in which he found that a few choice
spirits voluntarily participated. There being yet no tripos, the
only academical honours that could be gained were the Chan-
cellor's two medals for Latin and English composition, and
these young Abbott was resolved to try for. The siege of
Gibraltar had then effaced all the disasters and disgraces of the
American war, and was eagerly exchanged for the capitulation
of Saratoga. Under date March 5, 1783, Abbott writes to his
dear friend :
" The subjects of our prizes were given out yesterday — for
the Bachelors, THE USE OF HISTORY — for the Undergraduates,
THE SIEGE OF GIBRALTAR — CALPE OBSESSA. I am very much
displeased with the latter, for it appears to me to be at once
unclassical and commonplace —
' Gun, drum, trumpet, blunderbuss, and thunder ! '
But it will not do to set oneself against it. So I must endeavour
to make the most of it. Yet I feel my mind labour with omens
VOL. III. S
258
EEIGN OF GEOKGE III.
His prize
poem.
C HAP. of ill success. It is certainly a noble and splendid action. The
• difficulty will be in separating the circumstances peculiar to it
A.D. 1784. from the common occurrences which are to be found as well in
all other actions as in this."
Our aspirant's first attempt was not crowned with the success
he hoped for ; but he was encouraged to persevere by reading
on his verses when returned to him, " quam proximc accessit " —
the mark of approbation bestowed on the second best. More
than forty years after, when a Judge on the circuit at Salisbury,
he met the Rev. W. L. Bowles, the poet, who had carried off
the prize. His Lordship immediately reverted to the literary
contest in which they had been engaged, and very frankly con-
fessed that the rule had been observed, DETUR DIGNIORI.*
The subject of the prize poem for the following year was
GLOBUS AEROSTATICUS, — Lunardi's voyages in his balloon
having made many people believe that this vehicle, although
its moving power be the medium in which it floats, might be
guided like a ship impelled by the wind across the ocean, and
that a method had been discovered of establishing an easy inter-
course, to be reckoned by hours, between [the most distant na-
tions.t Abbott having again invoked the Cantuarensian muse,
* The poem may be seen at full length in ' Poemata Prsemiis Cancellarii
Academicis Donata,' &c., OxonisB, 1810, vol. i. p. 123. As a specimen I offer a
short extract, giving an account of the state of things after the failure of the
grand assault : —
" Nee vero, ut retulit nox exoptata tenebras
Cessavit furor, ardenti conjecta ruina
Ssevit adhuc longe missi vis flammea ferri.
Continuo exustsa dant mcesta incendia naves,
Umbrosumque vadum fumanti tramite signant.
Securi Britones geminata tonitrua torquent ;
Ipse inter medios, altoque serenior ore,
Dux late Martem spectat sublimis opacum,
Seu quondam proprio vestitum fulmine numen
Arma tenens, fatique velut moderatur habenas.
Audiit insolitum sola sub nocte fragorem
Adversum Libyse littus, longcque tremescit
Montanas inter latebras exsomnis hysena !"
t I have often heard my father relate the consternation excited by this same
Lunardi in the county of Fife. He had ascended from Edinburgh, and the
wind carried him across the Firth of Forth. The inhabitants of Cupar had
LIFE OF LORD TENTERDEN. 259
by her inspiration he was successful, and as victor mounting the 0 HAP.
rostrum in the theatre, amidst loud plaudits, recited the follow- ' — -v-^ — '
ing beautiful lines : A. D. 1784.
GLOBUS AEROSTATICUS.
Pondere quo terras premat aer, igneus ardor
Qttam levis, et quali raptim nova machina nisu
Emicet in ccelum, et puro circurn aethere ludat,
Pandere jam aggrediar ; juvat altas luminis oras
Suspicere, et magni rationem exquirere mundi.
Quippe etenim, ut facili cura, certoque labore
Hsec lustrare queas, miro en ! spectacula ritu
Circum ultro tibi mille adsunt, rerumque recludens
Dat natura modum, et primordia notitia'i.
Namque ubi sulphureis concocta bitumina venis,
Ausa ultro mediae penetrare in viscera terrse,
Gens liominum effodit, fundo illic semper ab imo
Exsudare leves aestus, summisque sub antris
Se furtim glomerare ferunt, quin ssBpe repenti
Cum sonitu accensos, et dirae turbine flammae,
Rumpere vi montem, superasque effervere in auras.
At vero angustis si terrae inclusa cavernis
Igiiea vis longum subter duraverit aevuna,
Quas ibi mox clades eheu ! quantasque videbis
Faucibus eruptis volvi super sethera flammas !
Quid repetam Ausoniis quoties tibi nuper in oris
Concussse cecidere urbes ? quot corpora letho
Ipsa etiam horrendis subter distracta minis
Terra dedit ? dum jam luctantem funditus aestum,
Collectosque vomens ad coelum efflaverat ignes.
Usque adeo est qusedam subtilis caeca animal
Materies, alti quso vulgo ad sidera coeli
Vi propria volat, et terras contemnit inertes.
Ergo etiam hos aastus si quis finxisse per ailem
Noverit, et levibus poterit concludere textis,
Continue e terris volucrem miro impete cernas
Ire globum, aeriisque ultro se credere ventis,
Et jam jamque magis liquidas conscendere nubes
Altius, atque atro penitus se condere ccelo.
Verum ubi jam longo in spatio eluctatus abivit
Aurai levis aestus, et igneus exiit ardor,
Turn demum setheriis idem se rursus ab oris
Demittet sensim, et mortalia regna reviset.
Quare age, et hsec animo tecum evolvisse sagaci
Cura sit, et csecas meditaiido exquirere causas.
Nee sine consilio fieri hsec, sine mcnte rearis,
observed a speck, which was at first supposed to be a bird, grow into a large
globe, and pass at no great height over their heads, with a man in a boat
depending from it. Some thought they could dcsciy about him the wings of
an angel, and believed that the day of judgment had arrived.
S2
REIGN OF GEOKGE III.
non Jura d91*-' verum omnia volvi
Lego una, et certo sub fcedere labier orbem.
Principle lianc omnem coeli spirabilis auram,
Terrai'que oras, et lati marmora ponti,
Vis cadem regit, ac uno omnia corpora ritu
In medium, magna connixa cupidine tendunt,
Pondere quidque suo ; firmis ita nexibus orbis
Scilicet, et tuto circum se turbine versat.
Proinde, magis gravibus, densisque ut corpora cuncta
Seminibus constant, ita per leviora necesse est
Subsidisse magis ; queis ergo rarior intus
Textura, et levibus constant qusecunque elementis ;
Haec contra e medio, sursum eluctata videntur
Volvere se supra, et magno circum sethere labi :
Quinetiam hie, tenuis quanquam et diffusilis, ae'r,
Mollia qui rebus dat vitso pabula, et omnem
Herbanimque fovet prolem, gentemque animantum,
Ipse etiam, immani descendens pondere, terris
Incumbit, gravibusque urget complexibus orbem.
At vero insolitos si qua sibi parte calores
Hauserit, hac ultro se latius ipse relaxans
Karescensque ae'r, leviori ita corpore, longe
Emicat e terra, et coelo spatiatur in alto.
Hinc adeo expresses nimio sub sole vapores
Arida se per prata ferunt attollere, et alte
Coeruleam nitidis variare coloribus sethram ;
Ssepe itaque et subitis incendi ardoribus auras
Per noctem, et longos in nubila spargier ignes.
Nonne vides etiam taciti per devia ruris,
Agricolse ut parvo glomeratus de lare fumus
Avolat, et tenuem rotat alte in sidera nubem ?
Quare etiam, atque etiam, commixto semper ab igni
Mutaturque ae'r, alienaque fcedera discit,
Et varium exercet, conversa lege, tenorem.
Scilicet has rerum species, hsec foedera, secum
Contemplate, diu, et vigilant! mente secuta,
Hinc etiam ipsa novum simili sub imagine coeptum
Gens humana movet, curruque evecta per auras
Torquet iter, coalumque audet peragrare profundum.
Ergo etiam hanc ipsam versu me attingere partem
Ne pigeat ; tenues nee dedignere monendo
Tu didicisse artes ; quippe ultro carbasa Persse
Dant levia, et viridi glomerata sub arbore bombyx
Vellera suspendit ; tu lento tenuia fuco
Texta line, exiguoque liquescens adsit ab igni
Et cera, et spissum Panchaio e cortice gluten.
Maximus hie labor est, haec alti gloria ccepti.
Ni facias, laxi per aperta foramina veli
Heu ! tibi mox rarse nimium penetrabilis aurse
Vis ibit, frustraque artem tentabis inanem.
Quod superest, seu jam piceas secta abieto tsedas,
Et stipulam crepitantem, et olentis vellera lanse,
Supponi, rapidumque velis advertier ignem,
LIFE OF LORD TENTERDEN. 261
Sell magis ardenti succensas subter olivo CHAP.
Lampadas admota placeat suspendere flamma, LII.
Quicquid erit, pariter raros bibet ipsa calores, ' <— — -'
Ingentemque tumens se machina flectet in orbem. A.D. 178 4-.
Quid dicam, et quales novit tibi chymicus artes ?
Quove modo effusum resolute e sulphure acetum,
Et cbalybis ramenta, levesque a flumine rores
Ille docet miscere, atrumque exsolvere in ignem ?
Nempe ea cum proprio jam collabefacta calore
In sua se expediunt iterum primordia, et arctos
Dissolvunt nexus, et vincla tenacia laxant :
Ignea turn subito rapidae tibi vis animai
Exagitata foras, validis exaestuat ultro
Vorticibus, clausaque arete fornace remugit ;
Hanc ipse appositis effunde canalibus, ipse
Pendentem immissis distende vaporibus orbem.
Quin age, nee pigro Britonum depressa veterno
Corda diu jaceant, dum late ingentibus ausis
Gallia se in meritos attollit sola triumphos.
Ilia quidem positis ulti-o pacatior armis,
Hanc ipsam in laudem, et potioris munera palmae
Advocat, ilia etiam faustos jam experta labores
Omina magna dedit, certaeque exempla via'i.
Attonitam quoties tremefacto pectore gentem
Vidit arundinea prselabens Sequana ripa
Stare, laborantes volventem in corde tumultus,
Audax dum ante oculos magni moliminis auctor
Avolat in coelum, et spissa sese occulit umbra ;
Aut late ae'rium faustis aquilonibus sequor
Tranat ovans, validasque manu moderatur liabenas.
Turn primum superi patefacta in regna profundi
Mortales oculi, mediae e regionibus aethrae,
Convertere aciem, densis dum obducta tenebris
Sub pedibus terra atque hominum spatia ampla recedunt.
Nam neque per totum cessabant nubila coalum
Densari, et vastos umbrarum attollere tractus,
Nee cuncti se circum ultro variare colores,
Cuncta figurarum late convolvier ora ;
Praesertim extreme cum jam pendebat Olympo
Sol, transversa rubens ; aut primum Candida Phoebe
Monstraratque ortum, et coelo se pura ferebat.
Atqui illic vacuas nee jam vox, nee sonus, aures
Attingit, sed inane severa silentia regnant
Undique per spatium, et vario trepidantia motu
Coixla quatit pavor, atque immixto liorrore voluptas.
H«ec adeo, haec prseclara novae primordia famse
Gallia, tu posuisti ; hoc jam mortalibus unum
Defuit, excussis dudum patefacta tenebris
Alta aniini ratio, et vitai norma severse
Eluxere ; patent terrasque, atque aequora ponti,
Astrorumque vise, atque alti lex intima mundi.
Jamque adeo et liquidao quao sit tarn mobilis auraa
Natura, et superi passim per inania co3li
262 EEIGN OF GEOKGE HI.
C HAP. Qua ratione gerant se res, et fcedera nectant,
LII. Explorare datur ; quo pacto rarior usque
Surgat, et in vacuum sensim se dissipet ae'r ;
A.D. 1784. Frigora quse, qui ignes lateant ; quanto impete venti
Hue superis, illuc infernis, partibus instent,
Convulsumque agitent transverso flamine coelum.
Ergo etiam humanam, concepto hinc robore, mentcm
Insolito tandem nisu, et majoribus ausis,
Tollere se cernes, penitusque ingentia lati
Aeris in spatia, et magni supera alta profundi
Moliri imperium ac multa dominarier arte.
He thus announced his success to his friend Egerton :
" C. C. 0., June 16, 1784.
" I have delayed writing to you for some time, partly
because I waited for the decision of the prizes, hut principally
because I have been constantly employed in endeavouring to
escape my own thoughts by company and every means I could.
I am now, however, repaid for my anxieties. They say it was
a hard run thing. There were sixteen compositions sent in.
All that has happened this morning appears a
dream."
Soon after this his joy was turned into mourning by the death
of his father. His mother continued to keep the shop at Can-
terbury for the sale of perfumery, and he devotedly strove to
comfort and assist her. For her sake he declined an ad-
vantageous offer to go to Virginia, as tutor to a young man of
very large fortune there. He was willing to forego a consider-
able part of his own salary, so that 50£. a-year might be settled
on his mother for life. " This," he wrote, " with the little left
her by my father, would afford her a comfortable subsistence
without the fatigue of business, which she is becoming very un-
able to bear." * But this condition being declined, the negotia-
tion went off.
A.D. 1785. The English Essay was still open to him, and the next year
His prize ne likewise carried off this prize. If his performance was less
dazzling, it gave more certain proof of his nice critical discri-
mination, and, from the exquisite good sense which it displayed,
* Letter to Sir Egerton Brydges, 2nd June, 1785.
LIFE OF LORD TENTERDEN. 263
of his fitness for the business of life. The subject was THE USE 0 HAP.
LIT.
AND ABUSE OF SATIRE. > , '
In this composition he showed that he had already acquired AJX 1785<
(whence it is difficult to conjecture) that terse, lucid, correct,
and idiomatic English style which afterwards distinguished his
book on the LAW OF SHIPS, and his written judgments as Chief
Justice of the King's Bench. The following is his analytical
division of the subject, evincing the logical mind which made
him a great judge :
" Early use of panegyrical and satiric composition ; gradual
increase of the latter with the progress of refinement.
" Different species of satire, invective, and ridicule.
"General division of satire into personal, political, moral,
and critical.
"I. 1. Personal satire necessary to enforce obedience to
general instructions. 2. Its abuse, when the subject is im-
properly chosen, when the manner is unsuitable to the subject,
and when it proceeds from private animosity.
"II. 1. Political satire, necessary for the general support
of mixed governments. 2. Its abuse, when it tends to lessen
the dignity of the supreme authority, to promote national divi-
sion, or to weaken the spirit of patriotism.
" III. 1. Moral satire, its use in exposing error, folly, and
vice. 2. Its abuse, when applied as the test of truth, and when
it tends to weaken the social affections.
" IV. 1. Critical satire, its use in the introduction and sup-
port of correct taste. 2. Its abuse, when directed against the
solid parts of science, or the correct productions of genius.
" Conclusion. Comparison of the benefits and disadvantages
derived from satire. Superiority of the former."
His reflections on Personal Satire will afford a fair specimen
of his manner :
" Personal satire has been successfully directed in all coun-
tries against the vain pretenders to genius and learning, who,
264 EEIGN OF GEORGE III.
C HAP. if they were not rendered contemptible by ridicule, would too
J 4 T JT
* , ' often attract the attention, and corrupt the taste, of their age.
A.D. 1785. gy employing irony the most artful, and wit the most acute,
against the unnatural and insipid among his contemporaries,
Boileau drew the affections and judgment of his nation to the
chaste and interesting productions of Moliere and Racine.
" Such have been the advantages derived from personal
satire, but so great on the contrary are the injuries resulting
from its misapplication, that the legislature of all nations has
been exerted to restrain it. For if they, whose failings were
unknown and harmless, be brought forth at once to notice and
shame, or if, from the weakness common to human nature, illus-
trious characters be made objects of contempt, the triumphs of
vice are promoted by increasing the number of the vicious, and
virtue loses much of its dignity and force by being deprived of
those names, which had contributed to its support. Not less
injurious to science is the unjust censure of literary merit, which
tends both to damp the ardour of genius, and to mislead the
public taste. The most striking examples of the abuse of
personal satire are furnished by that nation in which its free-
dom was the greatest. The theatres of Athens once endured to
behold the wisest of her philosophers, and the most virtuous of
her poets, derided with all the grossness of malicious scurrility.
Nor has modern poetry been altogether free from this disgrace.
Fortunate, however, it is that, although the judgment of the
weak may be for a time misguided, truth will in the end prevail :
the respect and admiration due to the names of Burnet and of
Bentley, of Warburton and of Johnson, are now no longer less-
ened by the wit of Swift, or the asperity of Churchill.
" Even where the subject or design is not improperly chosen,
abuse may still arise from the disposition and colouring of the
piece. When bitterness and severity are employed against
men whose failings may be venial and light, or ridicule degene-
rates either into the broad attacks of sarcastic buffoonery, or
the unmanly treachery of dark hints and poisonous allusions,
LIFE OF LORD TENTERDEN. 265
not only the particular punishment is excessive and unjust, but CHAP,
also general malice is fostered by new supplies of slander." < ^ — '
A.D. 1785.
In conclusion he thus strikes the balance between the evils
inflicted by satire, and the benefits which it confers :
" From this general representation of the good and ill effects
of satire, we may be enabled to form a comparison of their
respective importance. By the improper exercise of satire indi-
viduals have sometimes been exposed to undeserved contempt ;
nations have been inspired with unjustifiable animosity ; immoral
sentiments have been infused ; and false taste has received en-
couragement. On the contrary, by the just exertions of satire
personal licentiousness has frequently been restrained; the
establishments of kingdoms have been supported, and the pre-
cepts of morality and taste conveyed in a form the most alluring
and efficacious. The success, however, of all those productions
that have not been directed by virtue and justice, has been con-
fined and transient, whatever genius or talents might be em-
ployed in their composition ; by the wise among their contem-
poraries they have been disregarded, and in the following age
they have sunk into oblivion. But the effusions of wit, united
with truth, have been received with universal approbation, and
preserved with perpetual esteem, their influence has been ex-
tended over nations, and prolonged through ages. Hence,
perhaps, we need not hesitate to conclude that the benefits
derived from satire are far superior to the disadvantages with
regard both to their extent and duration ; and its authors may
therefore deservedly be numbered among the happiest instruc-
tors of mankind."
In 1785 he became B.A. If the modern system of honours Hi« Bache-
had been then established, he would no doubt have taken a
double first class ; but when this degree was conferred upon him
and others, there was nothing in the proceeding to distinguish him
from the greatest dunce or idler in the whole university. By his
prize compositions and college exercises his fame was established,
and his fortune was made. All that followed in his future
266
REIGN OF GEORGE III.
CHAP.
LII.
A.D. 1785.
His horse-
manship.
He is ap-
pointed
College
tutor.
His ac-
quaintance
with Judge
Buller.
career was in a natural sequence, and with the exception of the
deafness of Sir Samuel Shepherd when Attorney-General, which
led to Abbott being CHIEF JUSTICE instead of remaining a
puisne judge, there appeared nothing of accident or extraordi-
nary luck in his steady advancement.
From the completion of his second year he had begun to have
private pupils in classics, whose fees eked out sufficiently his scanty
allowance. He neither gave nor accepted invitations to wine-
parties ; his apparel was ever very plain, though neat ; and instead
of getting in debt by buying or hiring hunters, it is a curious fact
that he never once was on horseback during the whole course of
his life. In the declining state of his health, shortly before his
death, he was strongly recommended to try horse exercise ; but,
as he related to his old friend, Philip Williams (who told me),
he objected " that he should certainly fall off like an ill-
balanced sack of corn, as he had never crossed a horse any more
than a rhinoceros, and that he had become too stiff and feeble to
begin a course of cavaliering." He added, with a sort of air of
triumph, " My father was too poor ever to keep a horse, and I
was too proud ever to earn sixpence by holding the horse of an-
other." *
Abbott's college was very desirous of securing his services, and
soon after taking his degree he was elected a fellow and ap-
pointed junior tutor along with Mr. Burgess, who was delighted
to have him as a colleague. Under them CORPUS rose con-
siderably in reputation, and it was selected by careful fathers
who anxiously looked out for a reading college.
While fellow and tutor Abbott was intended for the church, and
the time now approached when he ought to go into orders. His
destination was again changed by his having become private tutor
to a son of the famous Mr. Justice Buller. In a letter to his
friend Egerton Brydges, dated 22nd June, 1785, he says : —
" I had received a slight hint that the President had another
offer to make to me. This is the tuition of Judge Buller's son,
* Yet so gained his livelihood on his arrival in London, a still greater man
—WILLIAM SHAKESPEARE !
LIFE OF LOKD TENTERDEN. 267
who will come from the Charterhouse to enter at this college C HAP.
next term. I was desired to fix the salary ; but, upon consul- \ <- — >
tation with Sawkins, declined it. The President and Dr. AJX 1785«
Bathurst, canon of Christ Church (who recommended the
College to the Judge), are disposed to think of 200/. a year
exclusive of travelling expenses ; but whether they will propose
this to the Judge, or desire him to name, I am not certain.
Mr. Yarde has a large fortune independent of his father, for
which he changed his name. Sawkins advised me (and the
President approved) to refuse one hundred guineas. Between
the two offers there could be no hesitation ; and indeed my
friends here thought the American place unworthy of my accept-
ance. If we agree upon terms, I propose to spend this summer
in France, if the Judge wishes his son's tutor to be able to
speak French. I am particularly pleased with the appearance
of this offer, as it will give me an opportunity of being much in
London."
In a letter of July 10th, 1785, he adds :—
" The plan which I mentioned to you in my last respecting
Mr. Yarde has been so altered by the Judge, that the parts of
it from which I promised myself most pleasure and advantage
are gone. Still the offer is too good to be refused. It is to
attend him in college only. Family circumstances make the
Judge wish to have his son at home in London as little as pos-
sible. The matter is not entirely settled ; but for residence with
him here during the terms I shall have, I believe, a hundred
guineas a year. If he stays here any vacation, or if I accom-
pany him out (which it seems I shall sometimes do), a conside-
ration is to be made for it. Mr. Willoughby, a particular
friend of the Judge, and an acquaintance of the President, is
commissioned to settle the affair."
The affair was at last settled satisfactorily, and Abbott did
act as Mr. Yarde's private tutor for two or three years, some-
times accompanying his pupil to the family seat in Devonshire.
The quick-sighted Judge soon discovered Abbott's intellec-
tual prowess, and his peculiar fitness for law. He therefore
strongly advised him to change his profession, and, somewhat
268 REIGN OF GEORGE III.
C HA P. profanely, cited to him a case from the Year Books, in which
the Court laid down that " it is actionable to say of an attorney
that he is a d d fool, for this is saying that he is unfit for
the profession whereby he lives ; but aliter of a parson, par ce
que on poet estre bon parson et d dfool" In serious tone the
legal sage pronounced, that with Abbott's habits of application
and clear-headedness his success was absolutely certain — saying
to him, " You may not possess the garrulity called eloquence, which
sometimes rapidly forces up an impudent pretender, but you are
sure to get early into respectable business at the bar, and you
may count on becoming in due time a puisne Judge." *
Although Abbott had been contented with the prospect of
obscurely continuing a college tutor** till he succeeded to a
country living, where he might tranquilly pass the remainder
of his days, he was not without ambition ; and when he looked
forward to his sitting in his scarlet robes at the Maidstone
assizes, while citizens of Canterbury might travel thither to
gaze at him, he was willing to submit to the sacrifices, and to
run the risks which, notwithstanding the sanguine assurances of
his patron, he was aware must attend his new pursuit. He was
now in his twenty-sixth year, and he had resided seven years in
his college. His only certain dependence was his fellowship,
the income of which was not considerable ; but from the profits
of his tutorship he had laid by a little store, which he hoped
might not be exhausted before it was replenished by professional
earnings.
In much perplexity as to the course of study he should adopt
to fit himself for the bar, he thus addressed his faithful friend : —
" C. C. C., June 13th, 1787.
" .... I can never sufficiently thank you for the offer of
your house in town. There are two modes in which I might
* Sir Egerton Brydges, after mentioning how Abbott's destiny depended
on his being tutor to Buller's son, merely adds, " That learned and sagacious
Judge immediately appreciated his solid and strong talents, and recommended
him to embrace the profession of the law, rather than of the Church, for
which he had hitherto designed himself." The language in which the advice
was given rests on tradition.
LIFE OF LOED TENTERDEN. 269
enter the profession of the law — that which you propose, of re- CHAP.
siding chiefly in Oxford till I am called to the bar, which would v L*L .
be the line of study which I should choose ; but then what am A.D. 1737.
I to do when called to the bar with the enormous expense of
going circuits, &c. ? — and that of going at once to a special-
pleader, and practising first below the bar. As far, however,
as I am able to comprehend this line of practice, which seems
to me to consist in a knowledge of forms and technical minutiae,
it would be very unpleasant to me, and the necessity of sitting six
or eight hours a day to a writing-desk renders it totally imprac-
ticable, as from the peculiar formation of the vessels in my
head, writing long never fails to produce a headache. Indeed
any great exertion has always the same effect, so that on this
account alone I think it will be wiser to choose a more quiet
profession."
However, his misgivings were much quieted by a conference
he had with his namesake Abbott, afterwards elected Speaker of
the House of Commons, and created Lord Colchester. Thus, in
a letter dated 13th October, 1787, he writes to Sir Egerton : —
" I received a visit from Abbott this morning, and we held a
long conversation together. He spent a year in a Pleader's
office, and another in a Draughtsman's, and now practises in
equity. Very particular reasons determined him to the Court
of Chancery ; but he would advise me to adopt the common
law, and chiefly on this account : the practice of the Court of
Chancery being necessarily confined to certain branches of the
law in exclusion of certain others, a man's general professional
connections can contribute less to his assistance, and he has less
opportunity of distinguishing himself. At the same time a
person who begins and goes forward in equity seldom is able
to make himself a perfect master of his profession, or qualify
himself for many of its highest offices. With regard to my
own particular case, Abbott thinks that, even if no connection
determined me, it would be better to take one year to look
into books and courts a little, than to enter at once into an
office where I could not possibly understand the business without
previous knowledge. This, you know, is exactly what I have
always thought, and wished others to think. He thinks too,
270 KEIGN OF GEORGE III.
that with proper application, I might get sufficient knowledge
by working one year in an office to enable me to proceed after-
A.D. 1787. Wards by myself, and doubts not that by the help of two or three
introductions to men in business, such as Foster, &c., I should
make my way without expending so much as six hundred
pounds. This, you see, is all very flattering. I wish it be not
too flattering."
He is Being thus reassured, on the 16th day of November, 1787,
entered of 5 ' J
the Temple, he was admitted a student of the Middle Temple ; * and he
soon after hired a small set of chambers in Brick Court. By
Judge Buller's advice, to gain the knowledge of writs and prac-
tice, for which in ancient times some years were spent in an Inn
of Chancery, he submitted to the drudgery of attending several
months in the office of Messrs. Sandys and Co., eminent at-
torneys in Craig's Court, where he not only learned from them
the difference between a Latitat, a Capias, and a Quo Minus,
but gained the good will of the members of the firm and their
clerks,t and laid the groundwork of his reputation for industry
and civility which finally made him Chief Justice.
His indus- His next step was to become the pupil of George Wood, the
student. ™ great master of Special Pleading, who had initiated in this art
the most eminent lawyers of that generation. Resolved to carry
away a good pennyworth for the 100 guinea fee which he paid,
he here worked night and day ; he seemed intuitively to catch
an accurate knowledge of all the most abstruse mysteries of the
DOCTRINA PLACITANDI, and he was supposed more rapidly to
* " Die 16 Novembris 1787.
" Mar. Carolus Abbott Collegii Corporis Christi apud Oxonienses Scholaris,
Filius natu secundus Johannis Abbott, nuper de Civitate Cantuariensi, de-
functi, admissus est in Societatem Medij Templi Londini specialiter, t
" Et dat. pro fine . . . 4:0:0"
From the following entry in the books of C. C. C., it appears that at this
time he had leave of absence from his College : —
" 1787. Nov. 13th. Abbott, a Bachelor of the House, applied for leave of
absence to keep the London Law Terms. The same was granted (conformably
to Statute) by the President, one Dean, one Bursar, and two other Fellows
J'romotionis causa."
•f " Nor did I not their Clerks invite
To taste said venison hashed at night. '
Pleader's Guide.
LIFE OP LOUD TENTERDEN. 271
have qualified himself to practise them than any man before or C HAP.
since. The great model of perfection in this line, in giving an * — 1^ — >
account of his status pupillaris under the eminent special pleader,
TOM TEWKESBURY,* sings —
" Three years I sat his smoky room in,
Pens, paper, ink, and pounce consumin'."
But at the end of one year Abbott was told that he could gain
nothing more by quill-driving under an instructor.
With characteristic prudence he resolved to practise as a
special pleader below the bar till he had established such a con-
nexion among the attorneys as should render his call no longer A.D. 1788.
hazardous, citing Mr. Law's splendid success from following the
same course. He accordingly opened shop, hired a little urchin He pmc-
of a clerk at ten shillings a week, and let it be understood by 1^^ a
Messrs. Sandys and all his friends that he was now ready to £nder the
draw Declarations, Pleas, Replications, and Demurrers with
the utmost despatch, and on the most reasonable terms. Clients
came in greater numbers than he had hoped for, and no client
that once entered his chambers ever forsook him. He soon was,
and he continued to be, famous for " the ever open door, for
quick attention when despatch was particularly requested, for
neat pleadings, and for safe opinions." f
Seven years did he thus go on, sitting all day, and a great
part of every night, in his chambers, — verifying the old maxim
inculcated on City apprentices, "Keep your shop and your
shop will keep you." He was soon employed by Sir John
Scott, the Attorney-General, in preparing indictments for high
treason and criminal informations for libel in the numerous
state prosecutions which were going on during " the reign
of terror," and by his pupils and his business he was clear-
* Hero of ANSTEY'S ' Pleader s Guide,' a poem which is, I am afraid, now
antiquated, and which will soon become almost unintelligible from the changes
in our legal procedure, but the whole of which I have heard Professor Person,
at the Cider Cellar in Maiden Lane, recite from memory to delighted listeners.
He concluded by relating, that when buying a copy of it and complaining that
the price was very high, the bookseller said, " Yes, Sir, but you know Law-books
are always very dear."
t Townsend s Twelve Judges, vol. i. 243.
272 EEIGN OF GEOKGE 111.
CHAP. Wan annual income of above 10007. He had now reached
LII
• the age of thirty-three, which, although it is considered in our
A.D. 1796. profession as early youth, the rest of the world believe to smack
of old age.* He exclaimed, " Now or never must I take the
leap into the turbid stream of forensic practice, in which so
many sink, while a few — rari nantes in gurgite vasto — are
carried successfully along to riches and honour."
He is called Accordingly he was called to the bar in Hilary Term, 1796,
by the Society of the Inner Temple,f and a few weeks after
His success he started on the Oxford Circuit. I myself joined that circuit
ford Circuit, about fourteen years later, when I formed an intimacy with him,
which continued till his death. I then found him with a junior
brief in every cause tried at every assize town ; and I heard
much of his rapid progress and steady success, with a good
many surmises, among his less fortunate brethren, that it was
not from merit alone that he had surpassed them. He had at
once stepped into full business, and this they ascribed to the
patronage of an old attorney called Benjamin Price, who had
acted as clerk of assize for half a century, and was agent in
* I remember Mr. Topping giving great offence to the junior members of
the bar, who expected to be considered young men till fifty-five, by observing,
when counsel for the plaintiff in a crim. con. cause, that the defendant's
conduct was the more inexcusable, " as the heyday in the blood was over
with him, and he had reached the mature age of thirty-three." According to
Lord Byron, a lady thinks she has married an aged husband, although he
may be several years younger than that :
" Ladies even of the most uneasy virtue
Prefer a spouse whose age is under thirty."
f The following is a copy from the books of that Society of his admission
and of his call : —
" INNER TEMPLE.
" Charles Abbott, second son of John Abbott, late of the City of Canter-
bury, deceased (who was admitted of the Society of the Middle Temple the
sixteenth day of November, in the year of our Lord 1787, as by Certificate
from the Middle Temple appears), admitted of this Society the eighth day of
May, in the year of our Lord 1793.
" Calls to the Bar. —Hilary Term, 1796.
" Mr. John Fuller, v
" Mr. Charles Abbott, I
•• Mr. William Lloyd, ' 1 5th Feb. 1796. '
" Mr. John Wadman, )
LIFE OF LORD TENTERDEN. 273
London for almost all the country attorneys in the eight coun- CHAP.
ties which constituted the Oxford Circuit. But in truth Abhott ' , '
was greatly superior to all his rivals as a junior counsel ; and A'D*
this superiority was quite sufficient to account for his success,
although he certainly had been very civil always to old Ben,
and old Ben had been very loud in sounding his praise. He
was most perspicacious in advising on the bringing and defence
of actions ; he prepared the written pleadings on either side
very skilfully, and without too much finesse ; he was of admir-
able assistance at the trial to a shallow leader ; he acknow-
ledged that he was an indifferent hand at cross-examining
adverse witnesses, but he never brought out unfavourable facts
by indiscreet questions ; he had great weight with the Judge
by his quiet and terse mode of arguing points of law arising at
nisi prius ; and if a demurrer, a motion in arrest of judgment,
a special case, a special verdict, or a writ of error was to be
argued in bane, he was a full match for Holroyd, Littledale,
or Richardson.
In about two years after his call a deep sensation was pro- The acci-
duced by the unexpected prospect of an opening for juniors on wiiht
the Oxford Circuit. It was the custom in those days, that while
the Judges went all the way round in their coaches and four,
the counsel journeyed on horseback. Abbott refused to cross the
most sedate horses which were offered to him, from the certain
knowledge that he must be spilt ; but he took it into his fancy that
it would be a much more easy matter to drive a gig, although
to this exercitation he was equally unaccustomed. As far as
Gloucester, after some hair-breadth escapes, he contrived to get,
without fracture or contusion ; but in descending a hill near
Monmouth his horse took fright, he pulled the wrong rein, he
was upset, and, according to one account, " he died immediately
from a fracture of the skull," and, according to another, "he
was drowned in the Wye." The news was brought to the
assembled barristers at their mess, and all expressed deep regret.
Nevertheless the brightened eyes and nickering smiles of some
led to a suspicion that the dispersion of briefs might be a
VOL. III. T
274 KEIGN OF GEOKGE III.
smaU recompense for their heavy loss. It turned out that there
had been considerable exaggeration as to the fatal effect of
Abbott's overturn ; but in truth his leg was broken in two places,
and he had received very severe injury in other parts of his
body — so that from this accident he was permanently lame,
and he had a varicose vein on his forehead for the rest of his
days. Although he was able in a few weeks to return to busi-
ness, his constitution materially suffered from this shock, and the
inability to take exercise which it superinduced.
While flourishing on the circuit he had as yet very slender
employment at Guildhall, and he felt a great desire to participate
in the commercial business there, which is considered the most
creditable and the most lucrative in the courts of common law.
With this view, in spite of the sneers of Lord Ellenborough at
book-writing lawyers, by the advice of Sir John Scott, who had
become his avowed patron, he composed and published a treatise
His book on « ON MERCHANTS' SHIPS AND SEAMEN.' In no department does
English talent appear to such disadvantage as in legal litera-
ture ; and we have gone on from bad to worse in proportion as
method and refinement have advanced elsewhere. Bracton's
work, i De Legibus et Consuetudinibus Angliae,' written in the
reign of Henry III., is (with the exception of ' Blackstone's Com-
mentaries ') more artistically composed and much pleasanter to
read, than any law-book written by any Englishman down to
the end of the reign of George III. — while we were excelled by
contemporary juridical authors not only in France, Italy, and
Germany, but even in America. Abbott did a good deal to
redeem us from this disgrace. Instead of writing all the legal
dogmas he had to mention, and all the decisions in support of
them, on separate pieces of paper, shaking them in a bag,
drawing them out blindfold, and making a chapter of each hand-
ful, connecting the paragraphs at random with conjunctives or
disjunctives (" And," "So," "But," " Nevertheless "),— he made
an entirely new and masterly analysis of his subject ; he divided
it logically and lucidly ; he laid down his propositions with pre-
cision ; he supported them by just reasoning, and he fortified them
LIFE OF LOKD TENTERDEN. 275
with the dicta and determinations of jurists and judges metho-
dically arranged. His style, clear, simple, and idiomatic, was a
beautiful specimen of genuine Anglicism. The book came out in
the year 1802, dedicated (by permission) to the man who had sug-
gested the subject to him, — now become Lord Chancellor Eldon.
Its success was complete. Not only was it loudly praised by
all the Judges, but by all the City attorneys, and, ever after, the
author was employed in almost all the charterparty, policy, and
other mercantile causes tried at Guildhall. Nay, the fame of His business
* at Guild-
the book soon crossed the Atlantic, although it was for some time hail.
ascribed to another ; for, as I have heard the true author relate
with much glee, the first edition, reprinted at New York, was
announced in the title-page to be by *' the RIGHT HONOURABLE
CHARLES ABBOTT, SPEAKER OF THE HOUSE OF COMMONS IN
ENGLAND." This was his distinguished namesake, Lord Col-
chester, who had been at the bar, and who was complimented by
the American editor for employing his time so usefully during
the recess of Parliament.*
Our hero was now as eminent and prosperous as a counsel
can be at the English bar, who is not a leader — either with a
silk gown as the ordinary testimonial of his eminence — or, if
this for any reason be withheld from him, dashing into the
lead in bombazeen, like Dunning, Brougham, and Scarlett, f
Abbott wore the bombazeen quite contentedly, and shrunk from
everything that did not belong to the subordinate duties of the
grade of the profession to which this costume is supposed to be
appropriated. Yet both for profit and position he was more to
be envied than most of those who sat within the bar, and whose
weapon was supposed to be eloquence. He was a legal pluralist.
His best appointment was that of counsel to the Treasury, or
rather " Devil to the Attorney-General " — by virtue of which
* Our legal literature has likewise been greatly indebted to the admirable
works of Lord St. Leonards on " Vendors and Purchasers " and on
" Powers."
f Dunning always wore stuff, except during the short time when he was
Solicitor-General. The two others were in the full lead long before they
were clothed in silk. I myself led the Oxford Circuit in bombazeen for
three years.
T 2
276
KEIGN OF GEORGE III.
CHAP.
LII.
A.D. 1802-
1816.
His large
income.
His incom-
petency as
an advo-
cate.
he drew all informations for libel and indictments for treason,
and opened the pleadings in all Government prosecutions.
Next he was counsel for the Bank of England, an office which,
in the days of one pound notes, when there were numerous
executions for forgery every Old Bailey Session, brought in
enormous fees. He was likewise standing counsel for a number
of other corporations and chartered companies, and being known
to be a zealous churchman as well as good ecclesiastical lawyer,
he had a general retainer from most of the Prelates, and Deans
and Chapters in England. Erskine in all his glory never
reached 10,000£ a year ; yet Abbott, " Leguleius quidam," is
known in the year 1807, to have made a return to the income-
tax of 802 6 /. 5s. as the produce of his professional earnings in
the preceding year, and he is supposed afterwards to have ex-
ceeded that amount.
I believe that he never addressed a jury in London in the
whole course of his life. On the circuit he was now and then
forced into the lead in spite of himself, from all the silk gowns
being retained on the other side, — and on these occasions he did
show the most marvellous inaptitude for the functions of an
advocate, and almost always lost the verdict. This partly arose
from his power of discrimination and soundness of understand-
ing, which, enabling him to see the real merits of the cause on
both sides, afterwards fitted him so well for being a Judge. I
remember a Serjeant-at-law having brilliant success at the bar
from always sincerely believing that his client was entitled to
succeed, although, when a Chief Justice, he proved without
any exception, and beyond all comparison, the most indifferent
Judge who has appeared in Westminster Hall in my time.
Poor Abbott could not struggle with facts which were decisive
against him, and if a well-founded legal objection was taken,
recollecting the authorities on which it rested, he betrayed
to the presiding Judge a consciousness that it was fatal. His
physical defects were considerable, for he had a husky voice,
a leaden eye, and an unmeaning countenance. Nor did he
ever make us think only of his intellectual powers by any
flight of imagination or ebullition of humour, or stroke of sar-
LIFE OF LORD TENTERDEN. 277
casm. But that to which I chiefly ascribed his failure was a
want of boldness, arising from the recollection of his origin and
his early occupations. " He showed his blood." Erskine un- AtD<
doubtedly derived great advantage from recollecting that he was
known to be the son of an Earl, descended from a royal stock.
Johnson accounts for Lord Chatham's overpowering vehemence
of manner from his having carried a pair of colours as a cornet
of horse. Whether Abbott continued to think of the razor-case
and pewter basin I know not ; but certain it is there was a most
unbecoming humility and self abasement in his manner, wThich
inclined people to value him as he seemed inclined to value
himself. Called upon to move in his turn when sitting in
court in term time, he always prefaced his motion with " I
humbly thank your Lordship." I remember once when he
began by making an abject apology for the liberty he was
taking in contending that Lord Ellenborough had laid down
some bad law at nisi prius, he was thus contemptuously re-
primanded : — " Proceed, Mr. Abbott, proceed ; it is your
right and your duty to argue that I misdirected the jury, if
you think so."
He had apprehensions that he could not remain much longer
stationary at the bar. He said to me that if he were sure of
having the second brief in a cause he would never wish to
have the first, but that he might be driven to hold the first if
he could not have the second. Soon after this display of rising
spirit he had a great opportunity of gaining distinction, for he
was called upon to lead a very important Quo Warranto cause
at Hereford, on which depended the right of returning to
Parliament a member for a Welsh borough. But nothing could
rouse him into energy, and he had a misgiving that the proper
issue was not taken on the 7th replication to the 10th plea. When His chief
he had been addressing the Jury as leader for half an hour a oratory!
silly old barrister of the name of Rigby came into Court, and
when he had listened for another half hour, believing all this
was preliminary to Dauncey or Serjeant Williams acting the
part of leader, and explaining what the case really was about,
278
EEIGN OF GEOKGE III.
CHAP. ne innocently whispered in my ear, "How long Abbott is in
v - r- — ' opening the pleadings in this case ! " The verdict going against
A'D' Ja?«~ him, a new trial was to be moved for next term, — when he had
lolo.
not the courage to make the motion himself, but insisted that
it should be made by Scarlett of the Northern Circuit, who was
still practising without the bar in a stuff gown like himself.
In 1808, when Mr. Justice Lawrence differed with Lord
Ellenborough, and retired into the Common Pleas, Abbott had
declined the offer of being made a Puisne Judge, on account
of the diminution of income which the elevation would have
occasioned to him — but soon after I joined the Circuit I found
that he earnestly longed for the repose of the Bench, and he
was much chagrined that his patron, Lord Eldon, did not renew
the offer to him. Sir Egerton Brydges, who was still more in
his confidence, thus writes: "For twenty years he worked at
the bar with steady and progressive profit and fame, but with
no sudden bursts and momentary blaze, till his health and
spirits began to give way. I well remember, in the year 1815,
his lamenting to me in a desponding tone that his eye-sight was
impaired, and that he had some thoughts of retiring altogether
from the profession. I dissuaded him, and entreated him not
to throw away all the advantages he had gained by a life of
painful toil, at the very period when he might hope for otium
cum dignitate. I left him with regret, and under the impression
that his health and spirits were declining."
While in Court upon the Circuits he betrayed a languor
which showed that he was sick of it, but in society, and in
travelling from assize town to assize town, he was lively and
agreeable. No one relished a good dinner more, although he
His conduct never was guilty of any excess. He still filled the office of
Attorney-General in the Grand Circuit Court, held at Mon-
Cir- mouth, which I regularly opened as crier, holding the poker
cuit Court, instead of a white wand ; and being so deeply versed in all
legal forms, he brought forward his mock charges against the
delinquents whom he prosecuted with much solemnity and bur-
lesque effect — so as for the moment to induce a belief that not-
LIFE OF LOED TENTERDEN. 279
withstanding his habitual gravity, Nature intended him for a CHAP,
wag.*
I ought to have mentioned that as early as the year 1795, A<D<
he was so confident of increasing employment that he ven- Hismar-
tured to enter the holy state of matrimony, being united to nage'
* July, 1795.
Mary, eldest daughter of John Lamotte, Esq., a gentleman
residing at Basildon.
There had been a mutual attachment between them some
years before it was made known to her family, and he had re-
ceived as a gage d? amour from her, a lock of her hair. This
revived his poetical ardour, and in the midst of Declarations,
Demurrers, and Surrebutters, he drew and settled —
" THE ANSWER OF A LOCK OF HAIR TO THE INQUIRIES OF
ITS FORMER MlSTRESS."
The reader may like to have two or three of the stanzas (or
counts) as a precedent :
" Since first I left my parent stock,
How strangely alter' d is my state !
No longer now a flowing lock,
With graceful pride elate,
Upon the floating gale I rise
To catch some wanton rover's eyes.
" But close entwin'd in artful braid,
And round beset with burnish'd gold,
Against a beating bosom laid,
An office now I hold :
New powers assume, new aid impart,
And form the bulwark of a heart."
The Lock goes on to describe a great discovery it had made
while guarding the heart of her lover :
" For in this heart's most sacred cell,
By love enthron'd, array'd in grace,
* Before the public he was always afraid of approaching a jest lest his
dignity might suffer, and in his book on Shipping he would not, without an
apology, even introduce a translation of a passage from a foreign writer which
might cause a smile : " If mice eat the cargo, and thereby occasion no small
damage to the merchant, the master must make good the loss, because he is
guilty of a fault ; yet if he had cats on board he shall be excused (Koccus,
58). The rule and exception, although bearing somewhat of a ludicrous air,
furnish a good illustration of the general principle."
280
REIGN OF GEORGE III.
CHAP.
LII.
His wife.
I saw a fair enchantress dwell
The sovereign of the place :
And as she smil'd her power to view,
I straight my former mistress knew.
" Then, lady, cease your tender fears ;
Be doubt dismiss'd ! Adieu to care !
For sure this heart through endless years
Allegiance true will bear,
Since I all outward foes withstand,
And you the powers within command."
It is said that while still practising as a special pleader under
the bar he at last ventured to mention the proposal to the lady's
father. The old gentleman asking him " for a sight of his rent-
roll," not yet being able to boast of " a rood of ground in West-
minster Hall," he exclaimed, " Behold my books and my pupils."
The marriage took place with her father's consent, and
proved most auspicious. The married couple lived together
harmoniously and happily for many years, although of very
different dispositions. While he was remarkably plain and simple
in his attire, she was fond of finery, and according to the prevail-
ing fashion, she habitually heightened her complexion with a thick
veneering of carmine. So little suspicious was he on such subjects
that I doubt whether he did not exultingly say to himself,
" her colour comes and goes." Once while paying me a
visit in my chambers, in Paper Buildings, the walls of which
were of old dark oak wainscot, he said, " Now, if my wife had
these chambers, she would immediately paint them, and I
should like them the better for it."
In the collection of his letters intrusted to me I find only
one addressed to his wife, and this I have great pleasure in
copying for my readers, as it places him in a very amiable point
of view. Some years after his marriage, when he had been
blessed with two hopeful children, being at Shrewsbury upon the
Circuit, he thus addressed her :
"Shrewsbury, March 27th, 1798.
" MY DEAREST LOVE,
" I have just received and read your kind letter, which
I had been expecting near half an hour. The inhabitants of
any country but this would be astonished to hear that a letter
LIFE OF LOUD TENTEKDEN. 281
can be received at the distance of 166 miles on the day after CHAP. ,
its date, and its arrival calculated within a few minutes.* As "
the invention of paper has now ceased to be a theme of re-
joicing among poetical lovers, I recommend them to adopt the
subject of mail coaches. They have only to call a turnpike
road a velvet lawn, and change a scarlet coat into a rosy
mantle, and they may describe the vehicle and its journey in all
the glowing colours of the radiant chariot of the God of Day.
And that no gentleman or lady may despair of success in at-
tempting to handle this new subject, I have taken the pains
to write a few lines, which a person of tolerable ingenuity may
work out into a volume :
• In rosy mantle clad, the God of Day
O'er heaven's broad turnpike wins his easy way ;
Yet soon as envious Night puts out his fires,
The lazy deity to rest retires.
But sure his robes with brighter crimson glow,
Who guides the mail-coach through the realms below ;
And greater he who, fearless of the night,
Drives in the dark as fast as in the light.
Sweet is the genial warmth from heaven above ;
But sweeter are the words of absent love.
Then cease, ye bards, to sing Apollo's praise,
And let mail-coachmen only fill your lays.'
" You see my verses are very stiff, but recollect that husbands
deal more in truth than in poetry. In truth then I am very
happy to hear that you, my dearest Mary, and our beloved
little John, are so much better, and in truth I am very happy
to think that the circuit is almost over, and that in a few days
I shall embrace you both. Unless I am detained beyond my
expectation I shall certainly have the pleasure of dining with
you on Monday. Indeed I hope to get to Maidenhead on
Sunday afternoon, and there step into one of the Bath coaches
that arrive in town about eleven at night. I have brought a
box of Shrewsbury cakes to treat the young gentleman when
he behaves well after dinner.
" Adieu, my dearest Mary,
" Your faithful and affectionate husband,
" C. ABBOTT."
* The rapidity of communication by the mail coach, then lately established,
so much exciting his astonishment, what would he have said had he lived
to see Railroads and the Electric Telegraph ?
282
EEIGN OF GEOKGE III.
CHAP.
LIL
His desire
to be made
a Judge.
The following verses, which I find in his handwriting, were
probably enclosed in a letter from him to Mrs. Abbott, while on
the Circuit at Hereford :
" In the noise of the bar and the crowds of the hall,
Tho' destined still longer to move,
Let my thoughts wander home, and my memory recall
The dear pleasures of beauty and love.
" The soft looks of my girl, the sweet voice of my boy,
Their antics, their hobbies, their sports ;
How the houses he builds her quick fingers destroy,
And with kisses his pardon she courts.
" With eyes full of tenderness, pleasure, and pride,
The fond mother sits watching their play ;
Or turns, if I look not, my dulness to chide,
And invites me like them to be gay.
" She invites to be gay, and I yield to her voice,
And my toils and my sorrows forget ;
In her beauty, her sweetness, her kindness rejoice,
And hallow the day that we met.
" Full bright were her charms in the bloom of her life,
When I walked down the church by her side ;
And, five years past over, I now find the wife
More lovely and fair than the bride.
" Hereford, Aug. 6, 1800."
His affection for her was warmly returned, and she con-
tinued very tenderly attached to him. Shortly before his
assumption of the ermine, she expressed to me the deep anxiety
she felt from a weakness in his eyes, discontent with the tardi-
ness of Eldon in fulfilling the promise to make him a Judge,
and the pleasure she should have in consenting to his retire-
ment from the profession altogether, if this would contribute to
his comfort. They had lived ever since their marriage in a
small house in Queen Square, Bloomsbury, giving a dinner to
a few lawyers now and then,* and seeing no other company.
He always contributed a dish to his own dinner table; for
passing the fishmonger's on his way to Westminster, he daily
called there and sent home what was freshest, nicest, and
* One of the wise saws which I have heard him recite was, "A good
dinner, given to guests judiciously selected, is money well spent."
LIFE OF LOUD TENTERDEN. 283
cheapest — trusting all the rest to her. Their union was blessed C HAP.
with four children — two sons and two daughters, and the whole ' , *
household was ever remarkable for all that is excellent and A-D- JJ02-
lolo.
amiable.
On the resignation of Mr. Justice Chambre, it was thought He is dis-
that Abbott's well-known desire to be made a Judge would
have been gratified ; but James Allan Park had been conducting
very successfully some Government prosecutions on the Northern
Circuit, to which much importance was attached, and his claims
were pressed upon the Chancellor so importunately by Lord Sid-
mouth, that they could not be resisted. Abbott and his family
were deeply disappointed, and his health then rapidly declining,
there were serious apprehensions that he would not be able to
stand the fatigue of bar practice any longer, and that he must
retire upon the decent competence which he had acquired. It is
said that he himself was deliberating between Canterbury and
Oxford as his retreat, and that he had fixed upon the latter city,
where he had always passed his time agreeably, whereas the
recollections of the former were not the unmixed " pleasures of
memory."
284 REIGN OF GEORGE III.
CHAPTER LIII.
CONTINUATION OF THE LIFE OF LORD TENTERDEN TILL HE WAS ELEVATED
TO THE PEERAGE.
C HAP. OPPORTUNELY another vacancy in the Court of Common Pleas
\ „ ' > soon after arose from the sudden death of Mr. Justice Heath,
A.D. 1816. who, considerably turned of eighty, made good his oft-declared
puisne*™ resolution " to die in harness." * Abbott was named to succeed
mon°Pleas ^^m' an^ keing obliged to submit to the degree of Serjeant-at-
Law, he took the same motto which he had modestly adopted
for his shield when he first indulged his fancy in choosing ar-
morial bearings — LABORE.
The following letter was written by him in answer to con-
gratulations from his old school-fellow — but it cannot be trusted
as disclosing the whole truth; for he was ever unwilling to
breathe any complaint against Lord Eldon, even when he thought
himself deeply aggrieved by the selfishness of his patron : —
" Serjeants' Inn, Feb. 15th, 1816.
" MY DEAR FRIEND,
" I have felt highly gratified by the receipt of your kind
letter and the warmth of your congratulations on my promotion
to the Bench. I can never forget how much my present station
is owing to your early friendship. The great object of my desire
and ambition is now attained : it has been attained at a time
when I had begun to be solicitous about it, as well on account
of my advancing age as of a complaint that has for some months
affected my eye-lids and made reading by candle light very
inconvenient. The comparative leisure I now enjoy has, I think,
already been attended with some beneficial effect and an abate-
ment of the complaint. If the offer had not come now, it might
have come too late ; if it had come much sooner, pecuniary con-
siderations would not have allowed me to accept it. But, like
* Another peculiarity about him was, that he never would submit to be
knighted ; being likewise resolved to die, as he did, " JOHN HEATH, Esq."
LIFE OF LORD TENTERDEN. 285
all other men who have obtained the object of their pursuit, I am C HAP.
now beginning to feel the difficulties that belong to it — to tremble •
lest I should be found unequal to the discharge of the duties of A«D« 1816.
my station from want of learning, or talents, or temper, or lest
the res still angusta domi should not enable me to keep up the
outward state that so high a rank in society requires, without
injury to my family. These difficulties, small at a distance, like
all others, now appear large to my view — the last of them larger,
perhaps, than it ought, though the transition from an income
exceeding present calls and daily flowing in, to one receivable
at stated periods and of which the sufficiency is not quite certain,
is attended with very unpleasant sensations. The employment
of the mind, however, so far at least as my very short acquaint-
ance with it enables me to judge, is far more agreeable. The
search after truth is much more pleasant than the search after
arguments. Some time may also be allowed to those studies
which are the food of youth and the solace of age, but to which
a man actively engaged in the profession of the law can only
give an occasional and almost stolen glance. And some time
may be allowed, too, for the discharge of the duties of domestic
life, for the calls and the pleasures of friendship, and for that
still more important task, the preparation for another world, to
which we are all hastening. I have been told that some persons,
on their promotion to the Bench, have found their time hang
heavy on their hands ; but I cannot think this will ever be iny
own case.
" I have another subject of congratulation, for I am to go the
Home Circuit, which I shall not have another opportunity of
doing for many years. C. Willyams has promised to be at
Maidstone during the assizes. I hope he will not be the only
old friend I shall meet there.*
" With best respects to Lady Brydges,
" I remain,
" My dear Sir Egerton,
" Your very faithful and affectionate friend,
" C. ABBOTT."
* The vision of his fellow townsmen coming over from Canterbury to see
him in the Crown Court, habited in scarlet and ermine, was about to be
fulfilled.
286 KEIGN OF GEORGE III.
C HAP. He sat for a very short time as Judge in the Court of Common
TjTTI.
1 » ' Pleas ; but riot a word which fell from him there has been re-
A.D. 1616. gordedj an(j hac[ he remained there we should probably have
known little more of him than the dates of his appointment and
of his death in ' Beatson's Political Index.9 But he was unex-
pectedly transferred to another sphere, where he gained himself
He is trans- a brilliant and a lasting reputation. Of this change he gives
ferred to
the King's an account in the following letter : —
Bench. °
" Queen Square, May 5th, 1816.
" MY DEAR SIR EGERTON,
" You have probably been already informed that I have
been removed from the Common Pleas to the King's Bench.
The change was greatly against my personal wishes on account
of the very great difference in the labour of the two situations,
which I estimate at not less than 400 hours in a year. I had
hoped to pass the remainder of my life in a situation of com-
parative ease and rest ; but the change was pressed upon me in
a way that I could not resist, though very unwilling to be
flattered out of a comfortable seat. I hope you will not think I
have done wrong.
" I remain,
" My dear Sir Egerton,
" Yours most sincerely,
" C. ABBOTT."
In his DIARY, begun November 3rd, 1822, but taking a re-
trospect of his judicial life, he explains that the true reason of
his removal was that Lord Eldon wished to make a Judge of
Burrough, who, from age and other defects, was not producible
in the King's Bench, but might pass muster in the Common
Pleas. Having stated how he at first refused and how Lord
Ellenborough pressed him to agree, he proceeds : — " Upon this
I went to Lord Chief Justice Gibbs, at his house at Hayes, in
Kent, to consult him. I spoke of the state of my eyes. He said,
* If a higher situation were offered to you, would you refuse it on
that account?' I answered, < I should not think myself justified
LIFE OF LORD TENTERDEN. 287
toward my family in doing so, but my own ambition is quite CHAP.
satisfied ' (as in truth it was). He replied, ' Then you must not < »— - '
let that excuse prevent your removal.' After some further con- A>D* 1£
ference, in the course of which he expressed himself with great
kindness in regard to losing my assistance in the Common Pleas,
it was resolved that I should remove, and upon my return from
Hayes I communicated to the Lord Chancellor that I was willing
to remove. This account of my removal to the King's Bench may
serve as an example of the maxim that to do right is the greatest
wisdom — even the greatest worldly wisdom. It was right that I
should remove into the King's Bench, and I ought to have done
so at the first proposal from the Lord Chancellor ; but I preferred
Gibbs, C. J., to Lord Ellenborough, as I had a right to do from
long acquaintance and many acts of kindness. I preferred my
ease to the wish of the Chancellor, for I might have understood
his proposal to contain his wish, though he would not tell me so.
This I had no right to do, for I owed everything to him and his
kindness. As soon as I removed I felt satisfied with myself,
though I may truly say I did not by any means expect the
consequence that followed two years and a half afterwards.
But if I had not removed into the King's Bench, I think it
certain that I should not have been placed at the head of that
Court."
On Friday, the 3rd of May, 1816, Mr. Justice Abbott took
his seat in the Court of King's Bench along with Lord Ellen-
borough, Mr. Justice Bayley, and Mr. Justice Holroyd * — and
he officiated there as a puisne Judge till Michaelmas Term, 1818.
Never having led at Nisi Prius, and having been accustomed
to attend to detached points as they arose, rather than to take a
broad and comprehensive view of the merits of the cause, he at
first occasioned considerable disappointment among those who
were prepared to admire him ; but he gradually and steadily
improved, and before the expiration of the second year he gave
* 6 Taunton, 516 ; 5 Maule and Selwyn, 2.
288 REIGN OF GEOKGE III.
C HAP. decided proof of the highest judicial excellence. The complaints
LXJL1,
' y i made against him were, that in spite of efforts at self-control, his
' manner to boring barristers was sometimes snappish ; that he
showed too much deference to the Chief Justice ; above all, that
in some political prosecutions, although his demeanour was always
decorous, and he said nothing that could be laid hold of as mis-
direction or misrepresentation, he betrayed an anxiety to obtain
a verdict for the Crown. Lord Ellenborough's health was se-
riously declining, and in those days there was still a strong dis-
position in the Government to repress free discussion and to
preserve tranquillity by a very rigorous enforcement of the
criminal law — a disposition which soon after ceased, when Peel
became Home Secretary and Copley Attorney-General. The
malicious insinuated that an aspiring puisne was trying for the
Collar of SS by " a mixture of good and evil arts." He him-
self was so profoundly reserved that he might have been
acting upon this plan without having disclosed it to his own
mind.
I happened to be much in his company during the long
vacation of 1816. In consequence of a serious illness, then
being a desolate bachelor, I had retired to a lonely cottage at
Bognor, on the coast of Sussex, and Mr. Justice Abbott taking
up his residence there with his family, he was exceedingly kind
to me. In our walks he talked of literature much more than of
law, and he would beautifully recite long passages from the
Greek and Latin classics, as well as from Shakespeare, Milton,
and Dryden. For all modern English poetry he expressed in-
finite contempt. When I ventured to stand up for brilliant
passages in Byron, he only exclaimed —
" Unus et alter
Assuitur pamms ! "
Yet he was himself still sometimes inspired by the Muse.
While we remained at Bognor, the Channel was visited by a
tremendous tempest, which he celebrated by the following
LIFE OF LORD TENTERDEN. 289
" Sonnet to the South- West Gale. C HAP.
" Perturbed leader of the restless tide, t LI11- ,
That from the broad Atlantic swept away, I&IR
Here mingles with the clouds its lofty spray,
As if it would the narrow limits chide
That Albion from her neighbour Gaul divide —
Relentless SOUTH-WEST ! curb thy angry sway,
Ere yet the swelling billows' fierce array
Close o'er yon shattered bark's devoted side !
The melancholy signal sounds in vain ;
The crew, desponding, eye the distant shore ;
Calm, ere they perish, calm the troubled main,
The placid sea and sky serene restore ;
And be thou welcom'd in the poet's prayer,
God of the balmy gale and genial air ! "
In the autumn of 1818 there was a great excitement in the He becomes
legal world. Lord Ellenborough had had a paralytic seizure, and it Justice of
was certain that he could never sit again. Sir Samuel Shepherd, ng an
the Attorney-General, although an excellent lawyer as well as a
very able and honourable man, was so deaf that he could not
with propriety accept any judicial office which required him to
listen to parol evidence, or to viva voce discussion. Sir Robert
Giffard had been recently promoted to be Solicitor-General,
from a rather obscure position in the profession, and he could not
as yet with propriety be placed at the head of the common law.
Sir Vicary Gibbs was looked to, having a great legal reputation,
and being in the highest favour with the Government ; for from
Attorney- General, he had successively been made a puisne Judge,
Chief Baron of the Exchequer, and Chief Justice of the Common
Pleas; but the hand of death was now upon him. Who was
to be Chief Justice of England ? Lord Ellenborough strongly
recommended Mr. Serjeant Lens, a most honourable man, an
accomplished scholar, and a very pretty lawyer, — and he was
for some time the favourite..
I well remember one morning in the end of October^ 1818,
about a fortnight after Lord Ellenborough's death, when the
puisne Judges of the King's Bench were assembled at Serjeants'
Inn for the hearing of special arguments in. what was called the
" Three Cornered Court," it was announced that Abbott was
certainly to be Chief Justice. Nothing discredited the assertion
VOL. III. U
290 REIGN OF GEORGE III.
CHAP, except that his own manner was tranquil and listless, and that he
' r— ' was observed several times to yawn, seemingly against his will.
A.D. 1818. §ome alleged that the news might be true, as he was only acting
a part — and others, who knew him better, explained what they
beheld by his habitual want of animal spirits and the collapse
after long and painful anxiety.
At the rising of the Court he accepted our congratulations on
his appointment, and on the 4th of November, fourteen years to
a day before his own death, he actually appeared in Court at
Westminster wearing the Chief Justice's golden chain.
His family expected to see at the same time his brows encircled
with a coronet, for ever since Lord Mansfield's elevation in 1756,
the Chief Justice of the King's Bench had been ennobled on his
appointment. This distinction was withheld from Chief Justice
Abbott for nine years ; but without such adventitious aid he
won the highest respect of the public (as Holt had done) by
the admirable discharge of his judicial duties.
The following letter from him to Sir Egerton Brydges, who
had calculated upon a peerage being at once conferred upon him,
fully explains what then took place, and his own views upon the
subject : —
" Russell Square, Jan. 17th, 1819.
" MY DEAR SIR EGERTON,
" I thank you most heartily for your very affectionate
letter, and assure you I do not doubt the sincerity of your warm
and kind expressions. It is well that you waited no longer in
expectation of seeing my promotion to the peerage announced.
Such an event is neither probable nor desirable. When the Lord
Chancellor told me he was authorized by the Prince Regent to
propose the office of Chief Justice to me, he said he was also
directed by His Royal Highness to acquaint me that it was not
the intention of His Royal Highness to confer a peerage upon
the person who should take the office, whoever he might be.
My answer was, that the latter part of his sentence relieved me
from the only difficulty I could have had in answering the first.
I was willing to take the office, but neither the state of my
LIFE OF LORD TENTERDEN. 291
fortune nor that of the office would allow me to take a peerage c HAP.
according to my views of expediency and justice to my family. •
All the offices in the gift of the Chief Justice, and which make A.D. 1818-
1827
his office a means of providing for a family, are now held by the
families of my predecessors upon lives which I can never expect
to survive. My emoluments will fall far short of two-thirds of
those which Lord Ellenborough enjoyed for many years past.
Under such circumstances, I should be most unwilling to accept
an hereditary honour, and I think myself fortunate in having a
family, of which no one member is desirous of such a distinction.
I have written so much about myself and my own situation,
because I know that you wish to hear of them. It is a subject
of deep regret to me that I receive your congratulations on my
promotion from a distant country .......
" Wherever you are and whatever you do, may health and
comfort attend you !"
The far happiest part of my life as an advocate I passed under Extraor-
the auspices of Chief Justice Abbott. From being a puisne, it
was some time before he acquired the ascendency and the
prestige which, for the due administration of iustice, the Chief Court of
Justice
ought to enjoy, — and while Best remained a member of the Court, while he
he frequently obstructed the march of business. But when this
very amiable and eloquent, although not very logical, Judge
had prevailed upon the Prince Regent to make him Chief
Justice of the Common Pleas, the King's Bench became the
beau ideal of a court of justice. Best was succeeded by Little-
dale, one of the most acute, learned, and simple-minded of
men. For the senior puisne we had Bayley. He did not talk
very wisely on literature or on the affairs of life, but the
whole of the common law of this realm he carried in his head
and in seven little red books. These accompanied him day
and night ; in these every reported case was regularly posted,
and in these, by a sort of magic, he could at all times instanta-
neously turn up the authorities required. The remaining puisne
was Holroyd, who was absolutely born with a genius for law, and
was not only acquainted with all that had ever been said or written
on the subject, but reasoned most scientifically and beautifully upon
u 2
292
KEIGN OF GEOKGE III.
CHAP.
MIL
A.D. 1818-
His great
merit as a
Judge.
every point of law which he touched, and, notwithstanding his
husky voice and sodden features, as often as he spoke he delighted
all who were capable of appreciating his rare excellence. Before
such men there was no pretence for being lengthy or importu-
nate. Every point made by counsel was understood in a moment,
the application of every authority was discovered at a glance,
the counsel saw when he might sit down, his case being safe, and
when he might sit down, all chance of success for his client being
at an end. I have practised at the bar when no case was secure,
no case was desperate, and when, good points being overruled,
for the sake of justice it was necessary that bad points should be
taken ; but during that golden age law and reason prevailed —
the result was confidently anticipated by the knowing before
the argument began, — and the judgment was approved by all
who heard it pronounced, — including the vanquished party.
Before such a tribunal the advocate becomes dearer to himself
by preserving his own esteem^ and feels himself to be a minister
of justice, instead of a declaimer, a trickster, or a bully. I do not
believe that so much important business was ever done so ra-
pidly and so well before any other Court that ever sate in any
age or country.
Although the puisnes deserve all the praise that I have
bestowed upon them, yet the principal merit is, no doubt, due to
Abbott, and no one of them could have played his part so well.
He had more knowledge of mankind than any of them, and he
was more skilful as a moderator in forensic disputation. He was
not only ever anxious, for his own credit, that the business of the
Court should be despatched, but he had a genuine love of law
and of justice, which made him constantly solicitous that every
case should be decided properly. His pasty face became irradi-
ated and his dim eye sparkled if a new and important question
of law was raised ; and he took more interest in its decision than
the counsel whose fame depended upon the result. Though a
most faithful trustee of the public time, insomuch that he thought
any waste of it was a crime and a sin, he showed no marks of
impatience, however long an examination or a speech might be, if
LIFE OF LOED TENTEKDEN. 293
he really believed that it assisted in the investigation of truth, and CHAP.
might properly influence the jury in coming to a right verdict. v » '
The language in which he clothed his statements and decisions A<D' 1827~
was always correct, succinct, idiomatic, and appropriate, and he
would not patiently endure conceit or affectation in the language
of others. He was particularly irate if a common shop was called
a warehouse by its owner, or the shopman dubbed himself an
assistant. A gentleman pressing into a crowded court, com-
plained that he could not get to his counsel. Lord Tenterden :
"What are you, Sir?" Gentleman: "My Lord, I am the
plaintiff's solicitor." Lord Tenterden : " We know nothing of
solicitors here, Sir. Had you been in the respectable rank of an
attorney, I should have ordered room to be made for you." *
A country apothecary, in answer to some plain questions, using
very unnecessarily high-sounding medical phraseology, the Chief
Justice roared out, " Speak English, Sir, if you can, or I must
swear an interpreter."
There were heavy complaints against him at nisi prius, that
when a fact had been proved by one witness, he reprimanded the
counsel for calling another to prove it over again, — that he was
angry when a witness was cross-examined as to the facts sworn
by him when examined in chief, — and that he appealed to the
evidence he had written down in his note book as if it were a
special verdict upon which the cause was to be decided, — forgetting
that everything might depend upon the impression made by the
evidence upon the minds of the jury and the credit they might
give to the witnesses. There is no denying that occasionally he
was rather irritable and peevish, and showed in his manner a
want of good taste and of good breeding. When a third or
fourth counsel rose to address him, following able leaders, he
would sneeringly exclaim, " I suppose we are now to hear what
* When in 1850 I returned to Westminster Hall, after an absence of nine
years, I found that the Attorneys had almost all grown into SOLICITORS ; and
the more expedient course now would probably be entirely to abolish the
word attorney, although it denotes the representative character of the forensic
agent much more appropriately than the favourite word Solicitor.
294
REIGN OF GEOEGE III.
CHAP.
LIIL
His sub-
jection
under a
favourite
counsel.
is to be said on the other side" although it might be the maiden
effort of a trembling junior ; and he too often forgot the remark
of Curran, when reproached for too much forbearance on be-
coming Master of the Rolls, " I do not like to appear in the
character of a drill-serjeant, with my cane rapping the knuckles
of a private, when I am raised from the ranks to be a colonel."
Although he behaved very courteously to the other puisnes,
he could not always conceal his dislike to brother Best. That
learned Judge, in trying a defendant for a blasphemous libel,
had thrice fined him for very improper language in addressing
the jury — 201. for saying to the Judge when reproved, " My
Lord, if you have your dungeon ready, I will give you the key "
— 40Z. for saying that " the Scriptures were ancient tracts con-
taining sentiments, stories, and representations totally derogatory
to the honour of God, destructive to pure principles of morality,
and opposed to the best interests of society" — and the like
sum of 407. for saying very irreverently, but one would have
thought less culpably, " The Bishops are generally sceptics."
A motion being made for a new trial on the ground that the
defendant had been improperly interrupted in making his defence,
Abbott, C. J., recognised the power of fining for a contempt, and
intimated an opinion that the exercise of it on this occasion had
not really debarred the defendant from using any arguments
which could have availed him, but sneered at the tariff of pecu-
niary mulcts, and pretty plainly intimated that he himself should
have pursued a different course.*
The only grave fault which could be justly imputed to Chief
Justice Abbott was, that he allowed himself to fall under
the dominion of a favourite. A judge is in danger of hav-
ing such a charge brought against him from one counsel in his
court being much more employed than any other, and being
almost always retained by plaintiffs, who in a large proportion
* Eex v. Davison, 4 B. and A. 33. It should be noted that Best, who,
though a passionate, was an exceedingly good-natured man, had himself
remitted the fines before the Court rose.
LIFE OF LOED TENTERDEN. 295
of causes succeed. This may prove a palliation for Abbott, but CHAP,
by no means an entire exculpation. Sir James Scarlett had
been his senior at the bar, and when they were in the same
cause on the same side, had often snubbed him, without per-
mitting him to examine an important witness, and hardly even to
open his mouth upon a point of law. The timid junior, become
Chief Justice, still looked up to his old leader with dread, was
afraid of offending him, and was always delighted when he
could decide in his favour. The most serious evil arising from
this ascendency was when Scarlett conducted criminal prosecu-
tions before Abbott, and, above all, prosecutions for conspiracy.
In a long sequence of these in which there had been convictions,
the Court granted new trials, on the ground that the verdict
was not supported by the evidence.
" This acute and dexterous lawyer," it has been said, " used
to confirm his influence by well-timed delicate flattery. Having
moved for a new trial for misdirection, he prefaced his motion
with the explanatory remark that he had taken an accurate
note of the summing up, which he only did when he conceived
there was a misconception on the part of the Judge — which did
not happen with regard to his Lordship three times a year.
The Chief Justice was evidently gratified, and observed with a
smile, ' I fear, Mr. Scarlett, that you do not take notes as often
as you ought to do.' " *
The bar evinced a jealous sense of the ascendency of the
favourite. On one occasion when, with the seeming appro-
bation of the Chief Justice, Scarlett had said, in an altercation
with Mr. Adolphus, who practised chiefly in the Criminal Courts,
" There is a difference between the practice here and at the
Old Bailey ; " his antagonist retorted, to the delight of his
brethren, " I know there is. The Judge there rules the advo-
cate ; here, the advocate rules the Judge."
The following letter from the Chief Justice to Sir Egerton Oct. 17,
Brydges, after some remarks upon Lord Eldon, Lord Giffard
(then Attorney-General), and Lord Lyndhurst (then Solicitor-
* Townsend's Lives, ii. 263.
296 KEIGN OF GEOKGE III.
CHAP. General), enters with extraordinary freedom into his own
' r— ' judicial character : —
A.D. 1818-
1827. " The Chancellor, who has done more work than any living
lawyer, perhaps than any deceased, is, I verily believe, and has
for some time been, desirous of resigning, but kept in his place
from the difficulty of filling it up, and from the King's personal
desire. The present Attorney-General will probably be his
successor : he is a good lawyer and a sound-headed man ;
warm rather than vigorous, and without dignity of person or
manner. Yet I think he is the fittest man living to succeed
one for whom a successor must soon be found — though perhaps
an equal never will be. The Solicitor- General is probably very
little known to you, though I think you have sat with him in
the House of Commons. He has less learning than the At-
torney-General, but a much better person, countenance, and
manner ; a good head and a kind heart, and not deficient in
learning. I suppose he will soon fill one of our high offices in
the law.
" Of myself I have really scarce any thing to say. My
health is good, and my spirits are generally good. I go through
my work as well as I can, though certainly not without some
anxieties and some crosses. I scarcely know whether the
extreme caution that the prevailing spirit of cavil and misrepre-
sentation imposes on a Judge be fortunate or unfortunate for his
future reputation — it is certainly unfortunate for his comfort :
a bridle in the mouth with a sharp curb is not a very pleasant
attire, yet in these times at 'least it is very necessary. I gene-
rally study to say as little as possible from the Bench, and to
confine myself closely to the very point before me, not hazarding
allusions or illustrations in which I know much wiser men have
often failed. How far I succeed others may better judge. I
am sure many of my decisions, when I read them in the
Reports, are at least as dry and jejune as may well be tolerated.
Lord Mansfield indulged himself in allusions and illustrations :
his opinions are said to have produced a great effect on the
majority of those who heard him ; they are not well reported by
Burrow — at least, few of them read well to a lawyer. His taste
for illustration was not fortunate. His opinion is often right
LIFE OF LOKD TENTERDEN. 297
when his illustrations are not right. Dr. Jackson (Dean of CHAP.
Christ Church) knew him well and privately, and often talked v v ' >
with me about him. We agreed upon his talents and character. A-D- 1818-
1 QO1"?
They were plausible and showy, and not unsuited to the age.
He certainly did much for the mercantile law, and not a little
for the law in general, by breaking down the barrier of what are
usually called forms ; but in this he sometimes went too far. The
preservation of forms, however unpopular, is of the essence of all
establishments — of the judicial in particular — for if Judges dis-
regard them, they become authors and not expounders of law.
The great art of a lawyer is to understand them. If a Judge
does not understand them, he will violate the law in a few
instances by breaking them ; and if of a cautious temper, do
injustice in many by a mistaken adherence to their supposed
effect : the latter has been the most common error. The less a
Judge knows of special pleading, the more nonsuits take place
under his direction. Buller told me so many years ago, and
experience has shown the truth of his assertion. You must for-
give all this from an old Special Pleader."
I have anxiously looked through this Chief Justice's judg- His dis-
. , . . ,.,.,. cretion in
ments with a view to select some which might interest the avoiding
general reader, but have met with sad disappointment. They
are all excellent for the occasion, but I find none that are very Jurisdiction.
striking. It so happened, that while he presided in the Court
of King's Bench there were hardly any State trials, and no
great constitutional question arose, such as " general warrants,"
or " the right of juries to consider the question of libel or no
libel," or " whether a court of law is to limit the privileges of the
two Houses of Parliament." With admirable tact and discre-
tion he avoided any attempt to extend the jurisdiction of his
own Court ; and he never once got into collision with any other
Court or any other authority in the State. He was cautious like-
wise in restraining the prerogative writs to their proper purposes.
A motion being made before him for a prohibition to the
Lord Chancellor sitting in bankruptcy : after showing that upon
the facts disclosed, the Lord Chancellor had done nothing amiss,
he added, " We wish not to be understood as giving any sanction
298 KEIGN OF GEOKGE III.
C HAP. to the supposed authority of this Court to direct such a prohi-
' r— ' bition. It will be time enough to decide the question when it
A °' 182?" ar^ses — if ever ^ sna^ ai%ise5 which is not very probable, as no
such question has arisen since the institution of proceedings in
bankruptcy — a period little short of three hundred years. If
ever the question shall arise, the Court, whose assistance may be
invoked to correct an excess of jurisdiction in another, will with-
out doubt take care not to exceed its own."*
His deci- I know not that I can offer a fairer specimen of his judgments
public have than that given by him in Blundell v. Catterall, where the
j10 co™™on question arose, whether there be a common law right for all the
to the use King's subjects to bathe in the sea ; and, as incident thereto, of
of the sea- . .
shore for everywhere crossing the sea-shore on foot or in bathing-machines
for that purpose. Best, J., strenuously supported the right, and
thus was he answered : — Abbott, C. J. : " I have considered this
case with very great attention, from the respect I entertain for
the opinion of my brother Best, though I had no doubt upon the
question when it was first presented to me ; nor did the defend-
ant's counsel raise any doubt in my mind by his learned and
ingenious argument. This is an action of trespass brought against
the defendant for passing with carriages from some place above
highwater-mark across that part of the shore which lies between
the high and lowwater-mark, for the conveyance of persons to and
from the water for the purpose of bathing. The plaintiff is the
undoubted owner of the soil of this part of the shore, and has the
exclusive right of fishing thereon with stake-nets. The defend-
ant does not rely on any special custom or prescription for his
justification, but insists on a common-law right for all the King's
subjects to bathe on the sea-shore, and to pass and repass over
it for that purpose on foot, and with horses and carriages. Now,
if such a common-law right existed, there would probably be
some mention of it in our books ; but none is found in any book,
ancient or modern. If the right exist now, it must have existed
at all times ; but we know that sea-bathing was, until a time
comparatively modern, a matter of no frequent occurrence, and
* Ex parte Cowan, 3 B. and A. 123.
LIFE OF LOKD TENTEKDEN. 299
that the carriages, by which the practice has been facilitated CHAP,
and extended, are of very modern invention.
" There being no authority in favour of the affirmative of the
question in the terms in which it is proposed, it has been placed
in argument at the bar on a broader ground ; and as the waters
of the sea are open to the use of all persons for all lawful pur-
poses, it has been contended, as a general proposition, that there
must be an equally universal right of access to them for all such
purposes overland, such as the plaintiffs, on which the alleged
trespasses have been committed. If this could be established,
the defendant must undoubtedly prevail, because bathing in the
waters of the sea is, generally speaking, a lawful purpose. But
in my opinion there is no sufficient ground, either in authority
or in reason, to support this general proposition. Bracton, in
the passage referred to, speaks not of the waters of the sea
generally, but of ports and navigable rivers ; and as to ports,
Lord Hale distinguishes between the interest of property and
the interest of franchise ; and says, that if A. hath the ripa or
bank of the port, the King cannot grant liberty to unlade on
the bank or ripa without his consent, unless custom hath made
the liberty thereof free to all, as in many places it is. Now,
such consent, as applied to the natural state of the ripa or bank,
would be wholly unnecessary if any man had a right to land his
goods on every part of the shore at his pleasure. If there be
no general right to unlade merchandise on the shore, there can
be no right to traverse the shore with carriages or otherwise for
the purpose of unlading ; and consequently, the general pro-
position to which I have alluded cannot be maintained as a
legitimate conclusion from the general right to navigate the
water. One of the topics urged at the bar in favour of this
supposed right was that of public convenience. Public con-
venience, however, is in all cases to be viewed with a due
regard to private property, the protection whereof is one of the
distinguishing characteristics of the law of England. It is true,
that property of the description of the present is in general of
little value to its owner ; but I do not know how that little is to
300 EEIGN OF GEOKGE III.
C HAP. be respected, and still less how it is ever to be increased, if such
a general right be established. How are stake-nets to be law-
be made? These, in order to be useful, must be below the
high-water mark. In some parts of the coast where the ground
is nearly level the tide ebbs to a great distance, and leaves dry
very considerable tracts of land. In such situations thousands
of acres have, at different times, been gained from the sea by
embankments, and -converted to pasture or tillage. But how
could such improvements have been made, or how can they be
made hereafter, without the destruction or infringement of this
supposed right ? And it is to be observed, that wharfs, quays,
and embankments, and in-takes from the seaj are matters of
public as well as private benefit. I am not aware of any usage
in this matter sufficiently extensive or uniform to be the foun-
dation of a judicial decision. In many places, doubtless, nothing
is paid to the owner of the shore for leave to traverse it. In
many places the King retains his ownership, and it is not pro-
bable that he should offer any obstruction to those who, for
•recreation, wish to walk, or ride, or drive along the sands left by
the receding tide. Of private owners, some may not have
thought it worth while to advance any claim or opposition ;
others may have .had too much discretion to put their title to the
soil to the hazard of a trial by an unpopular claim to a matter
of little value ; others, and probably the greater number, may
have derived or expected so much benefit from the increased
value given to their enclosed land by the erection of houses and
the resort of company, that their own interest may have induced
them to acquiesce in, and even to encourage the practice as a
matter indirectly profitable to themselves. Many of those who
reside in the vicinity of inland wastes and commons walk and
ride on horseback in all directions over them for health and
amusement, and sometimes even in carriages, deviate from the
public paths into those parts which may be so traversed with
safety. In the neighbourhood of some frequented watering-
places this practice prevails to a very great degree ; yet no one
LIFE OF LOKD TENTERDEN. 301
ever thought that any right existed in favour of this enjoyment, CHAP,
or that any justification could be pleaded to an action at the suit i
of the owner of the soil. The defendant finally says, that the A>D- I8!,?"
right may be considered as confined to those localities where it
can be exercised without actual prejudice to the owner of the
shore, and subject to all modes of present use or future improve-
ment on his part. No instance of any public right so limited
and qualified is to be found. Every public right to be exercised
over the land of an individual is pro tanto a diminution of his
private rights and enjoyments, both present and future, so far
as they may at any time interfere with or obstruct the public
right. But shall the owner of the soil be allowed to bring an
action against any person who may drive a carriage or walk
along any part of the sea-shore, although not the minutest injury
is done to the owner ? The law has provided suitable checks to
frivolous and vexatious suits, and experience shows that the
owners of the shore do not trouble themselves or others about
such trifles. But where one man endeavours to make his own
special profit by conveying persons over the soil of another, and
claims a public right to do so, as in the present case, it does
seem to me that he has not any just reason to complain, if the
owner of the soil shall insist on participating in the profit, and
endeavour to preserve the evidence of the private right which
has belonged to him and his ancestors. For these reasons I am
of opinion that there is not any such common-law right as the
defendant has claimed ; and my brothers Bayley and Holroyd
agreeing with me, there must be judgment for the Plaintiff". "*
In the following judgment Chief Justice Abbott held that No action
the author or publisher of an immoral book cannot maintain an pirating an
action for pirating it. " This was an action brought for the
purpose of recovering a compensation in damages for the loss
alleged to have been sustained from the publication of a copy
of a book which had been first published by the plaintiff. At
the trial it appeared that the work professed to be a history of the
amours of a courtezan, that it contained in some parts matter.
* BluiideU v. Catterall, 5 Barn, and Aid., 2G8-316.
302 REIGN OF GEOEGE III.
CHAP, highly indecent, and in others matter of a slanderous nature
' r— ' upon persons whose supposed adventures it narrated. The
A'D 1827* questi°n> then, is whether the first publisher can claim a com-
pensation in damages for a loss sustained by an injury done to
the sale of such a work. In order to establish such a claim he
must in the first place show a right to sell, for if he has not
that right, he cannot sustain any loss which the law will re-
cognise by an injury to the sale. Now, I am certain no
lawyer can say that the sale of each copy of this work is not an
offence against the law. How, then, can we hold that by the
first publication of such a work a right of action can be given
against any person who afterwards publishes it ? It is said that
there is no decision of a court of law against the plaintiffs
claim. But upon the plainest principles of the common law,
founded as it is, where there are no authorities, upon common
sense and justice, this action cannot be maintained. It would
be a disgrace to the common law if a doubt could be entertained
upon the subject ; but I think no doubt can be entertained, and
I want no authority for pronouncing such a judicial opinion." *
His defence Thus he pointedly defended our peculiar doctrine of high
oftheEng- /
lish doctrine treason, which constitutes the offence in the intention, but re-
treason" quires this intention to be manifested by an act. " The law
has wisely provided (because the public safety requires it) that
in cases of this kind which manifestly lead to the most exten-
sive public evil,. the intention shall constitute the crime; but
the law has at the same time with equal wisdom provided (be-
cause the safety of individuals requires it) that the intention
shall be manifested by some act tending towards the accomplish-
ment of the criminal object." t
* Stockdale v. Onwhyn, 5 Barn, and Cr. 175. This principle is perfectly
sound, but there must be great difficulty in acting upon it. Judges and
juries may be much divided as to whether the authors of such novels as
' Tom Jones ' and ' Peregrine Pickle ' ought to be allowed to maintain an
action for pirating their works. Lord Eldon refused an injunction against
the piracy of a poem dedicated by Lord Byron to Walter Scott, on the ground
of its being atheistical, although it is generally considered to be no more
liable to that charge than ' Paradise^Lost.'
t State Tr. vol. xxxiv.— Thistlewood's Case.
LIFE OF LORD TENTERDEN. 303
Although he saw more distinctly the evils than the benefits CHAP.
arising from the freedom of the press, he laid down the law of
libel always with calmness and decorum. Soon after the accession A'D*
of George IV. a criminal information was filed by the Attorney- Libellous to
General (not very discreetly) against the proprietor and printer JJJt £hsee y
of a newspaper for the following paragraph : — " Attached as we ?°^K
sincerely and lawfully are to every interest connected with the with in-
Sovereign or any of his illustrious relatives, it is with the deepest
concern we have to state that the malady under which his
Majesty labours is of an alarming description, and may be
considered hereditary. It is from authority we speak." At
the trial before Abbott, C.J., at Guildhall, the counsel for the
defendants admitted that the paragraph complained of imported
that the King laboured under insanity, and that this assertion
was untrue, but insisted that the defendants believed the fact
to be as they stated it, and that they were not criminally an-
swerable, as there had previously been strong public rumours to
the same effect.
Abbott, C. J.: " To assert falsely of his Majesty or of
any other person that he labours under the infliction of mental
derangement is a criminal act. It is an offence of a more
aggravated nature to make such an assertion concerning
his Majesty than concerning a subject, by reason of the
greater mischief which may thence arise. It is distinctly ad-
mitted by the counsel for the defendants that the statement in
the libel was false in fact, although they allege that rumours
to the same effect had been previously circulated in other news-
papers. Here the writer of this article does not seem to found
himself upon existing rumours, but purports to speak from
authority; and inasmuch as it is now admitted that the fact
did not exist, there could be no authority for the statement.
In my opinion the publication is a libel calculated to vilify and
scandalise his Majesty, and to bring him into contempt among
his subjects. But you have a right to exercise your own judg-
ment upon the publication, and I invite you to do so."
After the jury had retired about two hours, they returned
304 KEIGN OF GEOKGE III.
CHAP. int0 Court, and said they wished to have the opinion of
the Lord Chief Justice " whether it was or was not neces-
A D 182?" Sai7 tna^ there should be a malicious intention to constitute a
libel?"
Abbott, C.J. : "The man who publishes slanderous matter
in its nature calculated to defame and vilify another, must
be presumed to have intended to do that which the publication
is calculated to bring about, unless he can show the contrary,
and it is for him to show the contrary."
The jury, having again retired for three hours, returned a
verdict of GUILTY, but recommended the defendants to mercy.
Brougham and Denman moved for a new trial on account of
the Judge's direction, and more particularly for his having told
the jury that they (the counsel) had admitted the statement
in the libel to be false in fact, using that word to denote
a criminal untruth ; whereas they had only admitted the state-
ment to be untrue, the defendants believing it to be true,
and an untrue statement may be made with perfect innocence
and good faith. Bayley and Holroyd having said that the
direction was unexceptionable, Best added, " Whether a publi-
cation be true or false is not the subject of inquiry in the trial
of an information for a libel, but whether it be a mischievous or
innocent paper. We are not called upon to decide whether the
defendants would have been justified had the statement been
true. But it must not be taken for granted that if such a
dreadful affliction had happened to the country as the insanity
of the King, the editor of a newspaper would be justified in
publishing an account of it at any time and in any manner that
he thought proper. It is fit that the time and mode of such a
communication should be determined on by those who are best
able to provide against the effects of the agitation of public
feeling which it is likely to produce. Such a communication
rashly made, although true, might raise an inference of mis-
chievous intention, for truth may be published maliciously."
Abboft, C.J. : " My learned brothers having delivered their
opinion that nothing which ML from me in my address to the
LIFE OF LOKD TENTEKDEN. 305
jury furnishes sufficient ground for granting a new trial, I will CHAP,
merely add that unless malicious intent may be inferred from
the publication of the slander itself in a case where no evidence A'D'
is given to rebut that inference, the reputation of all his Ma-
jesty's subjects, high and low, would be left without that pro-
tection which the law ought to extend to them. I will say
further, with regard to the particular expression contained in
this publication, that if any writer thinks proper to say that he
speaks from authority when he informs his readers of a particu-
lar fact, and it shall turn out that the fact so asserted is untrue,
I am of opinion that he who makes the assertion in such a form
may be justly said to make a false assertion. I am not a suf-
ficient casuist to say that to call it an unti ue assertion would be
a more proper form of expression." '
After the transfer of Best to preside in the Common Pleas
there was hardly ever a difference of opinion among the Judges
of the King's Bench, but strange to say, on one question which
seems very plain and easy, they were divided equally, although
all actuated by singleness of purpose to decide rightly. A Q. Whether
gentleman residing in London hired of a public stable-keeper
a pair of horses to draw his carriage for a day, and the owner
of the horses provided the driver. Through the negligence of driver, to
the coachman in driving, the carriage struck a horse belonging carriage for
to a stranger. The question was whether the owner of the J^'for
carriage was liable to be sued for this injury? The Chief theneg\i-
J J gence ot
Justice, before whom the cause was tried, thought that he was the driver ?
not, and directed a nonsuit. On an application to the Court to
set aside the nonsuit, Bayley and Holroyd held that the driver
was pro hac vice the servant of the owner of the carriage,
although let for the day, with the horses, by the owner of the
horses.
Abbott, C. J. : " I must own that I cannot perceive any sub-
stantial difference between hiring a pair of horses to draw my
carriage about London for a day, and hiring them to draw it
* Hex v. Harvey and another, 2 Barn, and Cr., 257.
VOL. III. X
306
KEIGN OF GEOKGE III.
1827.
CHAP. for a stage on a road I am travelling, the driver being in both
LXXI*
* » ' cases furnished by the owner of the horses in the usual way,
A'D' 1 although in the one instance he is called a coachman and in the
other a post-boy. Nor can I feel any substantial difference
between hiring the horses to draw my own carriage on these
occasions and hiring a carriage with them of their owner.
If the temporary use and benefit of the horses will make the
hirer answerable, and there being no reasonable distinction
between hiring them with or without a carriage, must not the
person who hires a hackney-coach to take him for a mile or
other greater or less distance, or for an hour or longer time, be
answerable for the conduct of the coachman? Must not the
person who hires a wherry on the Thames be answerable for the
conduct of the waterman ? I believe the common sense of all
men would be shocked if any one should affirm the hirer to be
answerable in either of these cases."
Littledale, J., concurred in this opinion, and the nonsuit
stood.*
Chief Justice Abbott in his addresses from the Bench never
aimed at eloquence or epigram, but he showed himself master
of a nervous style which rose in dignity with the occasion.
In opening the commission for the trial of the Cato Street con-
spirators, a set of low desperate men who had laid a plot to
assassinate all the Cabinet Ministers, and then to seize upon
the government, he thus cautioned the Grand Jury against
incredulity on account of the improbability of the statements
which might be made by the witnesses : —
" Such ulterior designs, if they shall appear to be of the
nature to which I have alluded, and to relate to the usurpation
of the government in opposition to the constituted authorities of
* Laugher v. Pointer, 5 B. and C. 547. By the Common Law Procedure
Act, where the Judges are divided, the case now goes by appeal to a Court
of Error. — Lord Abinger, Chief Baron, afterwards ruled that the liability
under such circumstances is not a question of law, and that it is for the
jury to say whether the driver, when the accident happened, was the servant
of the person who has taken the horses to hire, or has let them to hire. Brady
r. Giles, 1 Moody and Robinson, 494.
The Cato-
street con-
spiracy.
LIFE OF LORD TENTEEDEN. 307
the realm even for a season, will appear to the calm eye of CHAP,
sober reason to be wild and hopeless. But you, gentlemen, * , >
know that rash and evil-minded men, brooding over their bad A.D. 1818-
designs, gradually lose sight of the difficulties that attend the
accomplishment of their schemes, and magnify the advantage
to be derived from them. And as it is the natural propensity
of the vicious to think others no less vicious than themselves,
those who form wicked plans of a public nature easily believe
that they shall have numerous supporters, if they can manifest
at once their designs and their power by striking some one im-
portant blow."
To prepare the minds of the Grand Jury for the evidence of
spies and accomplices, he added — " This belief leads in some
instances to a rash and hasty communication of the wicked
purpose to others who are thought likely to adopt it and join in
its execution, but who, in fact, are not prepared to do so, and
thereby occasionally furnishes the means of detection. Dark
and deep designs are seldom fully developed except to those who
consent to become participators in them, and can therefore be
seldom exposed and brought to light by the testimony of un-
tainted witnesses. Such testimony is to be received on all oc-
casions with great caution ; it is to be carefully watched, de-
liberately weighed, and anxiously considered. He who acknow-
ledges himself to have become a party to a guilty purpose does
by that very acknowledgment depreciate his own personal cha-
racter and credit. If, however, it should ever be laid down as
a practical rule in the administration of justice that the testimony
of accomplices should be rejected as incredible, the most mis-
chievous consequences must necessarily ensue ; because it must
not only happen that many heinous crimes must pass unpunished,
but great encouragement will be given to bad men by with-
drawing from their minds the fear of detection and punishment
through the instrumentality of their partners in guilt, and
thereby universal confidence will be substituted for that distrust
of each other which naturally possesses men engaged in wicked
x 2
308
KEIGN OF GEOEGE III.
CHAP.
LIII.
A.D. 1818-
1827.
Improper
proceeding
in trying to
forbid the
publication
of trials
for treason
till they
are all con-
cluded.
projects, and which often operates as a restraint against the
perpetration of offences to which the co-operation of a multitude
is required."
In passing sentence of death upon the prisoners, he thus
moralised the same theme : —
" It has happened to you on the present occasion, as to many
others before you, that the principal instruments by which you
were brought to justice are persons who have partaken in your
own guilty design. I trust that this circumstance will have its
due weight in the consideration of all who shall become ac-
quainted with your fate, and that they will ever for the sake
of their own personal safety, if they cannot be influenced by
any higher consideration, be induced to abstain from those evil
combinations which have brought you into the melancholy situa-
tion in which you now stand. That Englishmen, laying aside
the national character, should assemble to destroy in cold blood
the lives of fifteen persons unknown to them, except from their
having filled the highest offices in the state, is without example
in the history of this country, and I hope will remain unparalleled
for atrocity in all future times."
Our Chief Justice, however, tarnished the fame which he
might have carried off without a shade from his dignified, im-
partial, and firm demeanour during these trials, by imprudently
making an order that there should be no publication of any
part of the proceedings till they were all concluded, and by fining
the proprietor of a newspaper 5007. for publishing an account
of the first trial before the second had begun. The Courts
upheld the power to make the order and to enforce it by fine,
but such a mode of proceeding has never since been attempted,
the sound opinion being that the delay of publication is not
desirable, even if it could practically be insured, and that the
newspapers may be considered as indefinitely enlarging the
dimensions of the Court so as to enable the whole nation to see
and hear all that passes — between the arraignment of the pri-
soner and his condemnation or acquittal.
LIFE OF LORD TENTEEDEN. 309
I ought to record for the credit of this Chief Justice and for CHAP,
the imitation of his successors, that while he maintained forms
necessary to guard against fraud and to protect innocence, he A>D'
had not the passion for technical objections by which justice is The Chief
sometimes defeated. An indictment charged " that Mary ^i" ilk? of
Somerton, on a day and at a place named, being then and techn.ical
* r m niceties.
there servant to one Joseph Hellier, on the same day there
stole his goods." The prisoner being convicted and sentenced
to transportation for fourteen years, the record was removed
by writ of error, and error assigned that it did not sufficiently
appear from the indictment that she was servant to the owner
of the goods at the time when the larceny was committed,
although she might have been so at some moment of the same
day.
Lord Tenterden, C. J. : " If we were to hold that the allega-
tion ' that on such a day the prisoner being the servant of Joseph
Hellier did on the same day steal his goods,' does not import
that she stole the goods at the same time when she was his
servant, we should expose ourselves to the reproof expressed by
a very learned and very humane judge, that it is disgraceful to
the law when criminals are allowed to escape by nice and captious
objections of form." *
Although generally so sound in his decisions, he did not Doubtful
reach the reputation of infallibility. He shocked the convey- by him.
ancers exceedingly by holding that a jury might presume the
surrender of a term assigned to attend the inheritance where it
had not been dealt with for a number of years in subsequent
conveyances^ and he got into some discredit by broadly laying
down that a mortgagor allowed to remain in possession of the
mortgaged premises is tenant to the mortgagee.^ I must be
permitted likewise to doubt the soundness of his decision that
a native of Scotland born out of wedlock, but rendered legiti-
mate according to the law of that country by the subsequent
* Kex v. Somerton, 7 B. and C. 4G5.
t Doe v. Hilder, 2 B. and A. 784.
t Partridge v. Beer, 5 B. and A. 604.
310
REIGN OF GEOKGE III.
1827.
His pro-
pensity to
suspect
fraud.
CHAP, marriage of his parents, is not inheritable to freehold property
* r— ' in England. It was confirmed by the House of Lords, but I
A.D. 1818- cannot heip thinking that it proceeded on a narrow-minded and
erroneous principle. The admission was freely made that the
claimant, having the status of legitimacy in the country of his
birth, was to be considered legitimate in England for every
other purpose, and the conundrum arising from the definition of
a " bastard " in the Statute of Merton might easily have been
got over by the supposition of law upon which such legitimation
proceeds — that a prior marriage had been contracted though not
declared till after the birth of the child. The notion that there
is some peculiarity in the tenure of common soccage land
whereby it must descend to a son de facto born in wedlock, as
borough English land goes to the youngest son, is in my opinion
a fiction to support a miserable technicality.*
The bias which chiefly carried Abbott's mind astray when
it missed the object to which it was directed was a suspicion of
fraud. He had a very indifferent opinion of human nature,
and at times he seemed to believe all mankind to be rascals.
He delighted in discovering what he considered a fraudulent
contrivance on the part of the plaintiff or of the defendant
and in unravelling it. I have heard Scarlett jocularly boast
that he got many a verdict by humouring this propensity —
" just giving the hint very remotely to the Chief Justice,
and allowing his Lordship all the pleasure and the eclat of
exposing and reprobating the cheat." This dexterous advo-
cate certainly did at last prevail upon him to lay down a rule
which, while it was acted upon, materially obstructed the
transfer of negotiable securities — that " where a bill of exchange
has been lost or stolen, a subsequent holder, although he has
given a valuable consideration for it, cannot maintain an action
upon it if the jury should think that he took it under circum-
stances which ought to have excited the suspicion of a prudent
* Doe d. Barthwistle v. Vardill, 5 B. and C. 438. This decision lowered us
terribly not only in the opinion of Scotch but of French and American
lawyers. Professor Storey was very strong against it.
LIFE OF LOKD TENTEKDEN. 311
and careful man" The rule having before been that the title CHAP.
of the holder for value could only be impeached by proof of
fraud,* the new doctrine was questioned and thus defended : A-D-
Abbott, C. J. : "I cannot help thinking that if Lord Kenyon His doc-
had anticipated the consequences which have followed from the ««cawai,4
rule laid down by him in Lawson v. Weston, he would have caution"
J ... m taking
paused before he pronounced that decision. Since then the prac- negotiable
tice of robbing stage-coaches and other conveyances of securities of overruled.
this kind has been very considerable. I cannot forbear thinking
that this practice has received encouragement by the rule laid
down in Lawson v. Weston, which gives a facility to the dis-
posal of stolen property of this description. I should be sorry if
I were to say anything, sitting in the seat of judgment, that
either might have the effect or reasonably be supposed to have
the effect of impeding the commerce of the country by prevent-
ing the due and easy circulation of paper. But it appears to
me to be for the interest of commerce that no person should
take a security of this kind from another without using reason-
able caution. I wish that doubts had been thrown on the case
of Lawson v. Weston at an earlier time, and then this plaintiff
would have conducted himself more prudently and would not
have suffered."
The new fashion took amazingly. This rule of " circumstances
to excite the suspicion of a prudent and careful man" was
adopted by all the Judges, and was applied to all cases where
the owner of any negotiable instrument had once been induced
by improper means to part with the possession of it, as well as to
cases of accidental loss and of robbery. But the rule died with
its author. It was soon much carped at : some Judges said that
fraud and gross negligence were terms known to the law, but of
" the circumstances which ought to excite suspicion," there was
no definition in Coke or in Co well, — and the complaints of bill
brokers resounded from the Royal Exchange to Westminster Hall,
that they could no longer carry on their trade with comfort or
safety. The consequence was that in the course of a few years
* Lawson c. Weston, 4 Esp. 56.
312 EEIGN OF GEORGE III.
CHAP, by decisions in all the Courts at Westminster, the doctrine
LIII.
of " suspicion " was completely exploded, and the old rule re-
stored that the claim of the holder of a negotiable security who
gave value for it before it was due, although he may have
received it from a person who could not have sued upon it, can
only be defeated by proof of mala fides on his part.*
Notwithstanding these imperfections, failings, and errors,
which it has been my disagreeable duty to allude to, I have
pleasure in quoting and corroborating the testimony in the Chief
Justice's praise of his contemporary and friend Sir Egerton
Brydges, which shows the general estimation he enjoyed among
his countrymen : — " With what admirable skill, honour, and
steadiness he fulfilled the most laborious, most difficult and over-
whelming duties of his high station is universally acknowledged."
Q. Whether I am reluctant to bring to a conclusion my observations upon
ha^e°been Abbott as a great magistrate, for in this capacity he excites almost
re* utetion unimxed admiration and respect. But in the last years of his life
that he his destiny made him a political character, and although he still
had died a
commoner ? acted honourably and conscientiously, he by no means added to
his permanent fame. I cannot help wishing indeed that like
HOLT he had died a commoner. The coronet placed on his
brow might raise his consequence with the vulgar, but in the
eyes of those whose opinion was worth regarding he was a much
greater man when, seated on his tribunal, with conscious mastery
of all that belonged to his high office, he distributed justice to
his admiring fellow subjects, than when he sought to sway a
legislative assembly with which he was wholly unacquainted,
and to which he was wholly unsuited.
* Goodman v. Harvey, 4 Ad. and Ell. 470.
LIFE OF LOKD TENTEKDEN. 313
CHAPTER LIV.
CONCLUSION OF THE LIFE OF LORD TENTERDEN.
THE supposed elevation of the Chief Justice at this time, which CHAP,
exposed him to some censure, was no fault of his. He used con- •
fidentially to express surprise that his friend and patron Lord A-D- 1827-
Chancellor Eldon, whose advice would have been implicitly fol- ^t^n^T
lowed by the Prime Minister and the King, had not raised him the PeeraSe-
to the peerage when he became Chief Justice, but had actually
resigned the Great Seal without making him such an offer. He
concluded that at any rate Sir Charles Abbott ought to have had
the refusal of the honour in 1824, when Sir Robert Giffard was
created a Baron, having filled only the inferior offices of Chief
Justice of the Common Pleas and Master of the Rolls. But he
made no application or remonstrance by reason of what might
have been considered a slight, and I believe that he would have
been perfectly contented to remain Sir Charles Abbott, Knight,
for the rest of his days. Lord Eldon's conduct is very inexpli-
cable in withholding .a peerage from one who from his high
office had a fair claim to it, of whom he could have felt no
jealousy, who had been many years his devil and dependant,
and with whom his word in the House of Lords would have
been law. Can we suppose that he was actuated by a disinte-
rested study of Abbott's real good ? *
* Since writing the statement in the text respecting Abbott's peerage,
I have been favoured with a perusal of his DIARF, from which I make the
following extract, showing that he had become more desirous of having
his blood ennobled than could have been suspected from his usual modera-
tion and good sense, and from the sentiments which he himself had expressed
in his letter to Sir Egerton Brydges [ante, p. 290] : —
" April 7th, 1824. — Lord Giffard took his seat in the House of Lords on the
first day of the Session, and within a day or two afterwards a patent issued,
appointing him to act as Speaker of the House of Lords in the absence of the
Lord Chancellor. A few days afterwards, the Lord Chancellor, with some
hesitation and appearance of difficulty in introducing the subject, asked me
314 REIGN OF GEORGE III.
C HAP. However, he was most unexpectedly made a peer on the dis-
v ^— ' grace of that patron in all whose notions respecting State and
A.D. 1827. Qhurch he fuiiy coincided, by a Prime Minister whom he had
never seen, and whose principles, although they were not alto-
gether Whiggish, he considered dangerously latitudinarian.
Mr. Canning, the warm friend of religious toleration, having
agreed to form a balanced Cabinet with an anti-Catholic Lord
Chancellor, Sir John Copley, still in dreadful apprehension of
the Pope, although on the verge of a sudden conversion to
Catholic emancipation, had agreed to take the Great Seal, and
was to be raised to the peerage by the title of Baron Lyndhurst.
Moreover Plunket, upon a slight show of opposition from the
bar, having renounced the office of Master of the Rolls in
England, and accepted the office of Chief Justice of the Common
Pleas in Ireland, was likewise to be made a British peer by the
family name, which his eloquence had rendered illustrious. It
was thereupon suggested to the new premier by Scarlett, long
his intimate private friend, and now his Attorney-General elect,
that it would be a graceful act in public estimation, and would
throw some obloquy on Lord Eldon, whom they both heartily
what my feelings had been on Lord G.'s promotion to the peerage ? I told
him I had felt very little as it regarded myself, but much as it regarded my
office, being higher than Lord G.'s. He asked whether I should think it
right to move in the matter myself or to leave it to him ? I told him I cer-
tainly should not think it right to move in it myself. All that I could
collect farther was that some of the Ministers had thought it not necessary to
propose a peerage to me on the present occasion, because it was conferred on
Lord G. for the special purpose of enabling him to sit in the House of Lords
to hear appeals. I remarked that though I could not give my eldest son a
fortune by any means suitable to the dignity, yet, under present circumstances,
I should hardly think myself at liberty to refuse the honour, and should leave
my son to make such advantage as he could of it, being sure he would never
disgrace it by his conduct."
In a letter to the second Lord Kenyon, Lord Eldon professes to explain his
sincere views respecting Abbott's peerage : " I agree with you that, generally
speaking, the Chief Justice of the King's Bench should be a peer, even if
there had been no usage on the subject. Now, as to Abbott, his practice has
been behind the bar. He never had any office— I think not a silk gown. He
enters therefore on the office in very moderate circumstances, with a con-
siderable family. His health is tender, and his eyesight not in a very safe
state. Upon the whole, his own difficulty about taking the office was the
apprehension that peerage was to go with it. This determination appears to
me to have been quite right." — Lives of Chancellors, vol. vii. p. 338, 3rd ed.
LIFE OF LOUD TENTEKDEN. 315
hated and who heartily hated them both, if a peerage were
given to Lord Eldon's neglected protege, the Chief Justice
of England. Accordingly Mr. Canning, in a letter to him,
dated 19th April, 1827, after an introduction of polite eulogy,
said — " As in the approaching law promotions more than
one peerage will be conferred by his Majesty, it has occurred
to Mr. Canning as due to Lord Chief Justice Abbott, to his
Lordship's eminent services and to the dignity of the Court over
which he presides, that an opportunity should be offered to the
Lord Chief Justice to express his willingness (if he entertains it)
to accept a similar honour, which his Majesty is ready graciously
to bestow upon him." The answer expressed humble and grateful
acquiescence, — upon which immediately came a notice from the
Home Office that the inchoate peer should notify his choice of a
title, and that a sum of money, about 800/., should be deposited
for the fees of the patent. He was afraid of jests if he should
become " Lord Abbott," and he thought of the title of HENDON,
where he had a villa ; but he was advised to have something
more sounding, and TENTERDEN being familiar to him, as a
Kentish man, from the well known connection between the first
appearance of its steeple and of the Goodwin Sands, the Gazette
announced that " his Majesty had ordered letters patent to pass April 30.
the Great Seal, to create Sir Charles Abbott, Knight, a Baron
of the United Kingdom, by the name, style, and title of Lord
Tenterden, of Hendon, in the County of Middlesex."
On the 2nd of May following there was a grand ovation in Ceremony
Westminster Hall, to do honour to the solemnity of his taking his J^g his
seat in the House of Lords. Sir James Scarlett, the Attorney- ^oule of6
General, mustered an immense congregation of barristers, and
we followed the new peer, as yet only in his judicial robes, from
the Court of King's Bench to the room of the Earl Marshal.
There he was habited in his peer's robes, and, marching
between Lord Bexley and Lord Kenyon, he entered the
House, and presented his patent and writ to the Lord Chan-
cellor. We all stood under the bar, and the space being
too small for us, such a serried conglomeration of wigs never
316 REIGN OF GEOKGE III.
CHAP. was seen before or since. We could hear nothing of the
' ir- — ' patent, the writ, or the oaths which were read, but we witnessed
A.D. 1827. ^e procession through the House, headed by the Earl Marshal,
and our Chief being seated by Garter King at Arms on the
Barons' bench, we joyfully took our departure. Next morning
in Court the new peer threw down the following note, which was
handed through all the rows till it reached the junior of our
body : —
" DEAR MR. ATTORNEY,
" I was indeed gratified yesterday by the flattering mark
of attention which I received from the Bar. Assure them that
it went to my heart.
" Ever most faithfully yours,
" TENTERDEN."
He continued to attend the House for some time very dili-
gently, much pleased with his new honours, and afterwards as
often as he entered it he wore his judicial costume, being the
last Chief Justice who ever did so, when not officiating as
Speaker. There was franking in those days, and he was
pleased to say to me that " he considered this privilege to be
conferred upon him for the benefit of the profession." He really
was tickled when asked for a frank, and a glow of satisfaction
might be descried on his countenance as he was writing, " Free
— TENTERDEN." But he soon looked as if he considered it
rather a liberty to ask him for a frank — particularly after he
discovered that when on the circuit, sitting in Court, sur-
rounded by country Justices, a graceless youth had made him
frank a letter to a young lady of notoriously light character in
London.
His maiden Lord Tenterden's maiden speech was his most successful (I
might say his only successful) effort as a parliamentary orator.
Luckily the subject was quite in his own line as a lawyer. A
young heiress of 15 had been decoyed away from a boarding
school by a profligate adventurer, whose object was her fortune,
and had been induced to marry him. As he thought his scheme
LIFE OF LOKD TENTERDEN. 317
completely successful the moment the marriage ceremony had
been performed, her friends had an opportunity to rescue her
before any further injury had been inflicted upon her. They A'D' ls
prosecuted him for the abduction, and he was convicted and
sentenced to a long imprisonment. They then presented a
petition to the House of Lords, with her concurrence, praying
that the marriage might be dissolved. He presented a counter-
petition praying that the House would make an order for his
being brought up to defend his marital rights. The Earl of
Lauderdale, who had been called to the Scotch bar, possessed at
that time great weight as a " Law Lord," and he contended that
although there had been instances of dissolving by Act of Parlia-
ment the marriage of a young lady brought about by force, the
present marriage having been solemnised with the consent of
both parties could not be dissolved without a violation of prin-
ciple nor without establishing a very dangerous precedent.
Lord Tenterden recapitulated all the facts of the case as if he
had been summing up to a jury. He said " the principal offender
and his accomplices had been convicted of a conspiracy origi-
nating in the basest motives of lucre, and conducted by fraud
and forgery. He thought the House bound to afford the relief
prayed. The friends of the unfortunate girl had done all in
their power to vindicate the law, and now came to the Legisla-
ture for that relief which the peculiar nature of the case de-
manded. Although there had been here no actual force, the
law says that fraud supplies the place of force. Possibly the
marriage might be declared null and void by sentence of the
Ecclesiastical Court, but if proceedings were to be instituted for
that purpose, their Lordships must recollect the great delay
which must take place and the anxiety and distress to which
the parties must be subjected in the mean time. The pretended
husband had the audacity to complain of hardship, but his
punishment had been light compared with the enormity of his
offence. Their Lordships were bound to inform him and all
others who possessed themselves of the persons of young women
for the sake of base lucre, that they not only exposed themselves
318
KEIGN OF GEORGE III.
CHAP.
LIV.
A.D, 1827.
He opposes
the repeal
of the Cor-
poration
and Test
Acts.
to the penalties which the Courts of law might inflict, but that
there is a power in the country which will deprive them of all
possibility of ever reaping any advantage from their crimes." *
Leave was given to bring in the Bill, and it afterwards
quietly passed through both Houses and received the Royal
assent.
Before Lord Tenterden again opened his mouth in the House
of Lords, Mr. Canning had fallen a victim to the aristocratic
combination against him ; Lord Goderich, the most imbecile of
prime ministers, after a few weeks of premiership had ingloriously
resigned ; the Duke of Wellington and Peel were at the head of
affairs ; and a Bill had come up from the House of Commons to
repeal the Corporation and Test Acts. These our Chief Justice
had been taught to believe, and did potently believe, to be the
two main pillars of the Church, and he was absolutely horrified
to find that they were in danger from a joint assault of Whigs
and liberal Tories. The Earl of Eldon remained true to his
colours ; but, sad to relate, Lord Lyndhurst and the Duke of
Wellington himself meditated desertion.
The enemies of the Bill did not venture to attempt to throw
it out on the second reading, and confined themselves to
attempts to damage it in Committee. Lord Tenterden finding
that there was no chance of retaining the "Test Act," which
applied to all offices and places of profit or power under the
Crown, and if strictly enforced prevented any member of the
established church of Scotland from holding a commission in the
army or being an exciseman in any part of the United Kingdom,
made a desperate struggle in favour of the " Corporation Act,"
whereby dissenters were excluded from the offices of mayor,
alderman, common councillor, and all other offices in all muni-
cipal corporations in England. Not meeting with any sympathy
with his attachment to the Corporation Act in its integrity, he
moved an amendment whereby at least the office of chief magis-
trate in towns should not be polluted by being held by a dis-
senter. He urged that the Church was and ought to be supported
* 17 Parl. Deb. 882.
LIFE OF LORD TENTEKDEN. 319
as part of the constitution; consequently everything which CHAP.
upheld its dignity should be attended to ; and he therefore pro- » ^-^
posed that in the declaration to be made by the mayor or chief A'D* 1828p
magistrate of any municipal corporation these words should be in-
serted : — " I entertain no opinion on the subject of religion which
may or can prevent me attending the morning and evening
service of the Church of England, as set forth in the book of
Common Prayer." The Bishop of Chester asked whether, as the
law would still stand, a corporate magistrate would not be pre-
vented from attending a dissenting place of worship in the
insignia of his office ? Lord Tenterden answered " that might
be so, but still he thought that his amendment would be useful."
Upon a division there were only 22 contents against 111 non
contents.* He succeeded, however, by a suggestion which he
offered, in excluding Jews from municipal corporations, till in the
year 1844 they were admitted by an Act brought in by Lord
Lyndhurst, and passed during the administration of Sir Robert
Peel. The first form of declaration proposed by Lord Tenterden
was — " I recognise the books of the Old and New Testament
according to the authorized version as truly expressing the
revealed will of God;" but to this the Duke of Wellington
objected, as it would exclude Roman Catholic officers from the
army. Thereupon Lord Tenterden prompted a bishop to move
the introduction of the form used in the oath of abjuration — " on
the true faith of a Christian," and this being considered un-
objectionable was agreed to without a division.
The Bill, even with the substituted declaration, the Chief
Justice still condemned as fatal to the Church. It is wonderful
that a man of his religious feelings should have had no objec-
tion to the desecration of the most solemn rite of Christianity
by requiring it to be administered for a political purpose t —
* 18 Parl. Deb., 1609.
f I well remember the time when barristers, who had not been at church for
many years, on being appointed King's Counsel, used to go to St. Martin's
Church (appropriated for this purpose), pay their guinea, and bring away a
certificate of their having taken the Sacrament of the Lord's Supper according
to the rites and ceremonies of the Church of England,
320 KEIGN OF GEOKGE III.
C HAP. and that a man of his shrewdness did not anticipate the certain
-Ljl V.
y , ' declension of the Dissenters as soon as they should be deprived
A.D. 1829. of thig invaiuabie grievance.*
He opposes If he disapproved of the conduct of the Government in 1828,
Catholic°r f°r supporting the Bill introduced by Lord John Russell in
Emancipa- fav0ur of Protestant Dissenters, what must have been his sen-
tion.
sations when, in 1829, he heard, on authority which could no
longer be distrusted, that the Duke of Wellington and Sir
Robert Peel were about to introduce a Bill to remove all dis-
abilities from Roman Catholics, and to allow them to sit in
both Houses of Parliament ! On the second reading of the
Bill, Lord Tenterden made a speech, the beginning of which
was attentively listened to, and is said, from the solemn tone
and manner of the speaker, to have been very impressive : —
" My Lords," said he, "I would not now have offered my-
self to your Lordships in my individual capacity ; but, thinking
that it may be expected that a person in my situation should
not give a silent vote against this portentous measure, I am
induced to stand up and express my sentiments upon it. Several
noble Lords who have supported it have denominated them-
selves 'the friends of civil and religious liberty.' If by as-
suming that title they mean to insinuate that those who differ
from them as to the fitness of the proposed innovation are not
the friends of civil and religious liberty, I for one must enter
my protest against such an imputation. Every man may be
mistaken in his opinion — he may even be mistaken in the
motives on which he is acting — but, for myself, I have no hesi-
tation in asserting that the very reason for my opposition to the
present measure is derived from an attachment to civil and religi-
ous liberty. I have all my life admired the Protestant Church of
England. I should have been the most ungrateful of men if I
had not done so. My esteem for that church, which grew with
my growth and strengthened with my strength, has not declined
* The Church has ever since been gaining ascendency over the Dissenters,
and has now only to fear internal divisions.
LIFE OF LOKD TENTEEDEN. 321
since the bodily feebleness of age has been stealing upon me,
but is increased by the perils to which she is now exposed. Not
only am I actuated by religious considerations, but by the fixed A'D' *
conviction that our Protestant church is more favourable to civil
and religious liberty than any other established church which
either does at present exist, or has ever before existed in the
world. Can I support a measure which I ain sure by a broad
and direct road leads to the overthrow of this Protestant church ?
We have been told of countries in Europe in which Roman
Catholics and Protestants have been found to go on very ami-
cably together. But is there any other country in Europe or
elsewhere which bears any resemblance to Ireland ? In Ireland
there is an acknowledged Popish hierarchy, assuming to them-
selves the names and titles of those dioceses which by law belong
to Protestant prelates. And is it to be supposed that any hier-
archy— let alone a Popish hierarchy — would be content to leave
others in the enjoyment of those honours and emoluments which
were wrested from their ancestors of the same faith with them-
selves ? Is it possible that there should not exist in the human
mind an earnest and anxious desire to obtain the restitution of
these privileges ? And will not strength be given to persons
of the Roman Catholic persuasion to effect their object by
granting them political power? By political power I mean
a power exercised according to legitimate means ; I cannot
consent to give that designation to mere physical force or
the power of numbers, which, if properly resisted, I do not
dread."
He then went into a long, tiresome enumeration of all the
acts passed against Roman Catholics since the Reformation
down to the Union with Ireland, and set the peers on both sides
of the House a yawning, although they were too well bred to
cough, or in any way intentionally to interrupt him. He con-
cluded by declaring his conviction that, although the measure
might for a time produce tranquillity, such tranquillity would
not be of long duration — and would only be the deceitful still-
VOL. III. Y
322 REIGN OF GEORGE III.
C HAP. ness which precedes the storm, and that hereafter the combina-
' r- '• — ' tion of physical force and political power would be fatal to the
A'D'1829- empire.
Earl Grey spoke next, and thus began in a strain something
between compliment and sneer : —
" I too, my Lords, am very reluctant to offer myself to your
notice. I rise with a considerable degree of fear lest presump-
tion should be imputed to me for attempting to follow the noble
and learned Lord, the Chief Justice of England, who has just
delivered his opinion, and who has rested the greater part of the
argument which he addressed to your Lordships on a review of
the laws which bear upon the situation of his Majesty's Roman
Catholic subjects, and whose great learning, professional habits,
and high authority give him claims to your Lordships' attention
to which I cannot pretend."
He commented upon all the statutes which had been quoted,
contending that none of them presented a permanent bar to the
claims of the Roman Catholics. When he came to the Bill of
Rights, and alluded to the declaration, that to keep and carry
arms was the right of the subjects of this realm, Lord Tenterden
interjected, " being Protestants. " Earl Grey : " Well, my
Lords, of the Protestant subjects — it makes no difference in my
argument : among all the provisions of the Bill of Rights the
noble and learned Lord does not find it anywhere stated that
Roman Catholics are to be for ever excluded from the enjoyment
of the rights of the British constitution."
The Chief Justice fared no better when, on Lord Grey's state-
ment that Parliament had enacted in the reign of William and
Mary that every officer of the army and navy shall take the oath of
supremacy before receiving his commission, he exclaimed, " It was
a separate Act." Earl Grey : " Yes, it was a separate Act (1 W.
and M. c. 8, s. 10) ; but it was as much a part of the measures of the
Revolution as the law which required that the members of both
Houses of Parliament should take the oath of supremacy.
Although an administration to which I belonged was overturned
by an attempt slightly to modify that Act, it was afterwards totally
LIFE OF LOKD TENTEKDEN. 323
repealed by the very men who raised against us the cry that the C HAP.
Church was in danger, — the Earl of Eldon from the woolsack ' »— — '
giving the royal assent, — and both services were thrown open to AJ)* lg
Roman Catholics, — as both Houses of Parliament, I hope, will
shortly be, — notwithstanding his opposition and that of the noble
and learned Lord, — who perhaps was not fully aware of his appa-
rent inconsistency." *
I heard Lord Tenterden, without any diminution of my re- He opposes
spect for him, oppose the Catholic Relief Bill, — which, though a tomy Bill,
necessary, was a perilous measure, — the ominous prophecies about
which certainly have received some verification by subsequent
Papal aggression. But I felt much disgust from his violent
and vulgar opposition to a bill which I had materially assisted
in carrying through the House of Commons, to put an end to
the system of robbing churchyards of dead bodies, and to the
crime of committing murder for the supply of subjects for dis-
section to schools of anatomy. He utterly misrepresented the
Bill, by saying that all who went into hospitals hereafter must
lay their account with their bodies being " dissected and ana-
tomised, as if they were hanged for wilful murder." To excite
prejudice and passion against that which must evidently be con-
ducive to decency and humanity, he added, in a piteous tone,
that " the poor justly felt an unconquerable aversion to the dis-
section of their bodies, which would not be overcome by the'
most solemn assurance that they would afterwards receive Chris-
tian burial." The practice of " Burking," which had brought
such disgrace upon Edinburgh, he declared might in future be
prevented by a newly-discovered test, which enabled any skilful
medical man to ascertain whether a person whose body was
offered for sale had died by disease or by violence, and so, the
market for murdered dead bodies being spoilt, murders to obtain
them for sale would cease. These arguments, coming from a
Chief Justice, made a considerable impression on the Episcopal
bench and Conservative peers, and the Bill was lost. However,
proof being given that, in spite of the continuing atrocities of
* 21 Parl. Deb., 300.
Y2
324 REIGN OF GEORGE III.
C HAP. resurrection-men, anatomy could not be taught under the exist-
. LIV' . ing system, the Bill was allowed to pass in the next session of
A.D. 1830. Parliament, and it has been found to operate most beneficially.*
He opposes Lord Tenterden likewise strenuously opposed the Bill for
the Bill for J
takingaway taking away the capital punishment from the crime of forgery,
punishment which had long been considered, even by enlightened men, indis-
for forgery. pensakiy necessary for our commercial credit. He said, " When
it was recollected how many thousand pounds, and even tens of
thousands, might be abstracted from a man by a deep laid
scheme of forgery, he thought that this crime ought to be visited
with the utmost extent of punishment which the law then wisely
allowed." t
His efforts Nevertheless he was by no means, like Eldon and Kenyon, a
ing the law. bigoted enemy to law reform. When commissions were issued
by Peel, on the suggestion of Lord Brougham, for this laudable
object, he allowed his own name to be introduced into that for
inquiring into the procedure of the ecclesiastical courts; he
assisted in pointing out proper commissioners for the others ; J he
encouraged their labours, and when they had made their re-
ports, he employed himself in drawing Bills to carry their sug-
gestions into effect.
Thus he wrote in the summer of 1830 to his old friend Sir
Egerton : " You are probably aware that we had three commis-
sions, one on the practice and proceedings of the superior Courts
of Common Law, another on the Law of Real Property, and a
third on the Ecclesiastical Courts. Two reports have been made
by each of the two first — none by the latter, of which I am a
member. The reports contain recommendations and proposals
for many alterations, some of which I think useful and practi-
cable. Something, however, must be done by the Legislature
to satisfy the public mind ; and under this impression I have
employed myself since the circuit in preparing no fewer than
five bills, intended chiefly to give some further powers to the
* 21 Parl. Deb., 1749. t 25 Parl. Deb., 854.
t By his advice I was myself placed at the head of the Eeal Property
Commission.
LIFE OF LOKD TENTERDEN. 325
common law courts, and make some alteration in the practice, CHAP.
but without infringing on any important principle, adopting some v » '
of the recommendations, with some alterations from the proposals. AiD* 1J
I wish it were possible to cure the evil you so justly complain
of. Whatever shortens and simplifies will be calculated to save
expense ; but Acts of Parliament cannot make men honest. I
doubt whether an act to subject bills for conveyancing to taxa-
tion would effect much. As I think they ought to be, I
would willingly promote such an act ; but if I bring my five bills
before Parliament, I shall have done at least as much as I ought
to do, and perhaps more, though, to say the truth, I have one
more bill on the anvil, and have had for at least three years,
without the courage to propose it. It has had much of the limce
labor. Indeed, to say the truth, this limce labor is an occupa-
tion by no means disagreeable to my mind."
The Bills respecting the procedure of the Common Law His measure
Courts, embodying the suggestions of the Commissioners, prescrip-
passed without opposition, and almost without notice, but that tithes!1
on which the limes labor had been so long bestowed, and
which was peculiarly his own, caused a good deal of discussion.
The object of it was to define the periods of time which will
confer a title to certain rights by enjoyment, without a reference
either to prescription or grant, and to rectify the injustice which
arose from claims to tithe being brought forward, notwith-
standing exemption from payment of tithe, or the existence of
a modus for centuries, during which the advowson of the living
and the land in the parish had been sold upon the footing of
the exemption or the modus. In introducing his Bill in the
House of Lords he thus tried to make it intelligible to his
unwilling hearers : " Your Lordships may be aware that many
rights can only be established on the supposition that they have
existed ' for time whereof the memory of man runneth not to the
contrary ;' and that this period denominated ' legal memory ' or
'prescription' extends so far back as the commencement of the
reign of Richard I., or as some say, only to his return from the holy
war. But it is hardly ever possible to trace a right so far back
326 REIGN OF GEORGE III.
CHAP, by direct evidence, and Judges are obliged to tell juries that
from modern enjoyment they may presume the existence of the
A.D. 1830. right m very remote times. This, however, leads to great un-
certainty, for Judges may differ as to what is a reasonable
ground for the presumption ; and if evidence is offered, showing
that during any reign since Richard I. the right did not, or
could not exist, it is gone for ever. Again, some rights may be
claimed by grant from the owner of the land over which they
are to be exercised, and after an enjoyment of them for a certain
period of time, Judges have been in the habit of calling upon
juries to presume that such a grant has been made, although it
is not forthcoming, and in truth never had existence. But
besides the scruples of some Judges and some jurors against
resorting to this fiction, it is occasionally insufficient from legal
technicalities to protect long enjoyment. I conceive that it will
be much better to follow the example of all other civilized
nations, and to enact that after undisturbed enjoyment for
periods to which direct and satisfactory evidence may be applied,
the right shall be conclusively established, and I propose periods
of sixty, forty, thirty, and twenty years, under different modifi-
cations and conditions according to the nature of the right —
whether it be to take part of the profits of land, or only to
exercise an casement over it. Thus the right to common of
pasture, to common of estovers, to ways, to light, air, and water,
will be respectively regulated and provided for. The next
subject to which I have to draw your Lordships' attention is
the claim to tithes. At present, under the maxim nullum
tempus occurrit ecclesice, a modus, or small payment in lieu of
tithes, may be challenged and set aside, unless it is supposed to
have existed so far back as legal memory. Here again the
doctrine of presumption is resorted to, but it will surely be
much better that some reasonable time should be fixed, during
which positive proof of the modus shall be required, and that
then the modus shall be unchallengeable. Farther, non-payment
of tithes for any length of time operates no exemption, unless
the land can be proved to have belonged to a religious house
LIFE OF LORD TENTEKDEN. 327
before the Reformation, and thence much expensive and vexati- CHAP.
ous litigation ensues. I propose to make the payment of a y ^ — '
modus or entire nonpayment for thirty years sufficient to AtD- 183L
establish the modus or exemption, unless a contrary practice
can be distinctly proved at some antecedent time, and where the
evidence extends to sixty years to make the right claimed by
the occupier of the land to pay a modus, or to be altogether
exempt from payment, absolute and indefeasible. I am, my
Lords, most sincerely attached to the clergy of the Church of
England ; I should be most ungrateful if I were not so : but it
is better for them as well as for their parishioners that a per-
manent peace should be concluded between the parties on the
basis of uti possidetis. I doubt not that the clergy have much
oftener lost what strictly belonged to them than gained by
usurpation. Having seen the bad effects of the warfare which
has been carried on, I must say PETO PACEM. Tithe suits almost
invariably cause personal dissensions in the parish, and lessen
the usefulness of the incumbent, but they not unfrequently involve
him in expense which he can ill afford, and turn out disas-
trously for himself and his family."
Lord Chancellor Brougham highly complimented the Bill,
and it was read a first time, but on account of the speedy dis-
solution of Parliament it was lost for that Session, In the
following year Lord Tenterden again brought forward the
measure, dividing it into two Bills, one " For shortening the
time of Prescription in certain cases," and the other " For
shortening the time required in claims of modus decimandi, or
exemption or discharge of tithe." They both passed* exactly
as he framed them, — but I am sorry to say that although they
proceed on very good principles, they have by no means esta-
blished for him the reputation of a skilful legislator. The Judges
* 2 and 3 Wm. IV. c. 71, and 2 and 3 Wm. IV. c. 100. One of his biographers
has likewise given to him the credit of 3 and 4 Wm. IV. c. 27, for abolishing
real actions and making a uniform rule as to the title to lands from enjoy-
ment.— Townsend, vol. ii., 272. Having drawn it myself, with the assistance
of my brother Commissioners, I can testify that he never saw it till it was in
print.
328
EEIGN OF GEOKGE III.
CHAP.
LIV.
A.D. 1831.
His sound
views re-
specting
parliamen-
tary privi-
He opposes
the Reform
Bill.
Oct. 7.
have found it infinitely difficult to put a reasonable construc-
tion upon them, and, in adapting them to the cases which
have arisen, have been obliged to make law rather than to
declare it.*
An opportunity occurring to him of expressing his general
opinion upon " Parliamentary privilege," he showed very plainly
what his opinion would have been respecting the questions on
this subject which arose after his death. Lord Brougham, the
Chancellor, being rather hostile to Parliamentary privilege, had
expressed a doubt respecting the power of the House to fine and
imprison for a libel. Lord Tenter den : " All the Courts of
Westminster Hall exercise this privilege, and how can it pro-
perly be denied to your Lordships ? In what cases, under what
circumstances, and to what extent your Lordships should exer-
cise this privilege, it is for your Lordships to determine — but
the privilege is clear, distinct, and indisputable — being conferred
not for the protection of those who possess it, but for the sake of
the public and for the good government of the nation. The
very principle of our constitution requires that the two Houses
of Parliament should possess all the powers necessary for enabling
them to perform the functions which it assigns to them." f
I now come to the measure which he considered fatal to the
monarchy, which drove him from the House of Lords, and which
probably shortened his days — the reform of the representation
of the people in Parliament. On the 5th night of the debate
on the second reading of the Reform Bill of 1831, he rose and
spoke as follows : " I feel it necessary to address a very few
sentiments to your Lordships on this important question. Many
topics had occurred to me against this appalling Bill, but they
* On one question which arose respecting exemption from tithes, a case
was sent by the Lord Chancellor successively to the Court of Common Pleas,
the Court of Queen's Bench, and the Court of Exchequer, and in each Court
the Judges were equally divided upon it.
t 3 Parl. Deb., 3rd Series, p. 1714. Lord Brougham imputed to him a
blunder, by supposing that he had attributed to the House of Commons, as
well as to the House of Lords, the power of fining and imprisoning for a time
certain. He merely excused himself on the ground that he had never been a
member of the Lower House.
LIFE OF LOUD TENTEEDEN. 329
have already been urged by others with more force and ability CHAP.
than I could have brought to the task. But there is one point < r—*
on which I feel it my peculiar and sacred duty to address you — A<D< 1831>
not so much in my character as a Peer, as in the character which
the robes I wear remind me that I have to sustain. I find, my
Lords, that the rights of almost all the corporate bodies in
England, whether they are held by charter or prescription, are
treated by this Bill, so far as I see, with absolute contempt.
Many of them are to be annihilated, and the rest are to be
despoiled of their privileges. I have listened in vain for any
reason for the extent to which this destruction and spoliation are
carried. I should be ready to run the risk of innovation were
it intended only to transfer privileges from some decayed parts
of the constitution to other more sound and healthy parts, which I
believe in my conscience is all that is desired by the reasonable
portion of his Majesty's subjects, by the middle classes, for
whom I entertain as great a respect as any man (I may tell
your Lordships that I feel a respect and affection for these
classes, having sprung from them), but instead of such a rea-
sonable and moderate measure, reconcileable with the institu-
tions of the country, I find one going farther than the worst
fears of alarmists had ever anticipated. On what footing is the
measure rested ? Expediency alone ! My Lords, Expediency
is a tyrant whose will is made a pretext for every act of in-
justice. Corporate rights, hitherto held sacred, are now reck-
lessly violated, and I will tell those who despise them that after
this precedent the rights of property will be equally disregarded,
and liberty and life itself will be sacrificed to expediency, or
the appetite of the mob for plunder and blood. I conclude
with repeating that I consider myself in the situation which I
unworthily fill peculiarly bound to uphold the chartered rights
of the people, and I hereby solemnly proclaim that the flagrant
violation of these rights is of itself an insuperable objection to
this Bill."
I happened to be standing on the steps of the throne when
this oracular denunciation was delivered, and I am sorry to
330
KEIGN OF GEOEGE III.
CHAP.
L1V.
A.L>. 1831.
A.D. 1832.
His last
speech in
the House
of Lords,
with his
vow never
again to
enter the
House if the
Reform Bill
passed.
say that the effect was rather ludicrous. The notion had never
before entered the imagination of any man that the Chief
Justice of England is ex-officio the Patron Saint of all muni-
cipal corporations, and that when they are in danger he is
bound to appear Deus ex machina in their defence.
The doomed Tenterden was soon after s-natched away (happily,
perhaps) from the evil to come. How would he have comported
himself when the " Municipal Corporation Reform Bill " was
brought forward, which actually did sweep away every close cor-
poration in the kingdom, made every ratepayer a burgess, and
created by popular election a Mayor, Aldermen, and Councillors
in every borough — " all statutes, charters, and customs to the con-
trary in anywise notwithstanding ?" — On the present occasion he
was in a triumphant majority of 199 to 158 against the second
reading of the Parliamentary Reform Bill — and for some months
longer he slept sound, corporate rights remaining untouched.*
But in the month of April following, the Parliamentary Re-
form Bill again came up from the Commons ; and although it
now very improperly preserved the franchise of the corrupt free-
men, Lord C. J. Tenterden's hostility to it was in no degree miti-
gated. Accordingly it was thus assailed by him in the last speech
he ever delivered in parliament : — " A safe and moderate plan of
reform I should not object to ; but the question is, whether you
will go further with the consideration of this bill — a bill which
I have no hesitation in saying ought on no account to be per-
mitted to pass into a law. The bill evinces a settled disregard
of all existing rights. In its disfranchising clauses it does more
than can be attempted with safety, and in its enfranchising
clauses it goes infinitely beyond the wants and the wishes of the
country. The right of sending representatives to parliament is
to be lavished not merely on great populous towns which have
recently risen into opulence, but on villages and hamlets which
have sprung up around them. Moreover, the elective franchise
is to be placed, if not entirely, at least in a preponderating
degree, in the hands of one class. If this had been a class of well
* 8 Parl. Deb., 3rd Series, 301.
LIFE OF LOED TENTEKDEN. 331
educated, well informed men, still I should have objected to CHAP,
making it the sole depositary of political power ; but this class * » ' '
notoriously does not consist of such persons as I have just A'D< 1832>
described. Those who belong to it are entitled to your Lord-
ships' superintending care and protection ; but they are unfit to
become your masters. We are asked to go into a committee on
the bill, because there it may be amended. In committee I
should feel it my duty to move that the whole be omitted after
the word * that,' for it cannot be modified so as to be rendered
innocuous. The principle of the bill is precisely the same with
that which you have already rejected. It is said that we must
not go against the wishes of the people and a decided majority
of the House of Commons. But you must consider whether the
fulfilment of such wishes would not be pernicious to the people ;
and a majority of the House of Commons, however much entitled
to respect, ought not to induce your Lordships to sanction a
measure which you believe in your conscience would involve
Lords and Commons in the general ruin. Let the bill be im-
mediately rejected, for any protracted consideration of it can
only lead to the delusion as well as to the disappointment of the
public. We are threatened with calamitous consequences which
may follow the rejection of the bill ; but I have no faith in such
predictions. I never have despaired, nor will now despair of the
good sense of the people of England. Give them but time for
reflection, and I am sure they will act both wisely and justly.
Of late they have been excited by the harangues of ministers, by
the arts of emissaries, and by the inflammatory productions of
the periodical press. Let them have time to cool, and they will
ere long distinguish between their real and their pretended
friends. Already there is a growing feeling among the people
that they have been following blind guides, and I believe there
is a great majority of the nation ready to adopt any measure of
temperate reform. This measure, my Lords, leaves nothing
untouched in the existing state of the elective franchise. It
goes to vest all the functions of government in the other House
of Parliament, and if it were to pass there would be nothing
332
REIGN OF GEORGE III.
CHAP.
LIV.
A.D. 183$
His health
declines.
left for this House or for the Crown, but to obey the mandates
of the Commons. NEVER, NEVER, MY LORDS, SHALL I ENTER
THE DOORS OF THIS HOUSE AFTER IT HAS BECOME THE PHANTOM
OF ITS DEPARTED GREATNESS."
There was still a decided majority of the Peers determined
that the bill should not pass. Nevertheless the expedient course
was considered to be, that it should not again be thrown out in
this stage, and the second reading was carried by a majority of
184 to 175.*
For a few days there seemed reason to think that Lord Lynd-
hurst's manoeuvre would succeed. The King concurred in it,
and a new administration was named to mutilate the bill. But
the nation said No ! The King was obliged to agree, if neces-
sary, to create the requisite Peers to carry " the bill, the whole
bill, and nothing but the bill." The dread of being so
" swamped " by fresh creations frightened away a great many
of its opponents, and it quietly passed its subsequent stages
unchanged.
Lord Tenterden was as good as his word. After the Reform
Bill received the Royal assent he never more entered the doors
of the House.
If he had survived a few years, he might have laughed at the
disappointment of those who expected from this measure a new
era of pure public virtue and uninterrupted national prosperity ;
yet he would have witnessed the falsification of his own predic-
tions ; for, while individual peers ceased to be members of a
formidable oligarchy, the House collectively retained its place
in the constitution, and, I believe, it has since risen in public
estimation and in influence.
Lord Tenterden was sincerely convinced that the House and
the country were doomed to destruction, and this conviction
aggravated the disorders by which his enfeebled frame was now
afflicted. In the following strain, although almost too feeble to
support existence, he poured forth his anguish to Sir Egerton
Brydges : —
* 12 Parl. Deb., 3rd Series, 398, 454.
LIFE OF LOKD TENTERDEN. 333
" Kussell Square, May 20th, 1832. CHAP.
" MY DEAR SIR EGERTON, LIV.
" I have made several attempts to write to you, but A.D. 1832.
have found myself unable to do so ; nor can I write as I ought,
or wish to do. My spirit is so depressed, that when I am not
strongly excited by some present object that admits of no delay,
I sink into something very nearly approaching to torpidity.
My affection for you remains unchanged. God bless you.
' ' Your most affectionate friend,
" TENTERDEN."
Again, on the 8th of June, after addressing the same cor-
respondent upon matters of inferior importance, he adds —
" We differ upon the great measure that has so long agitated
the country. I. considered the Catholic Bill as the first, and I
consider this as the concluding step to overturn all the institu-
tions of the country. In my anticipations of the effect of the
first, I have certainly not been mistaken. The present state of
Ireland proves this. Would to God I may be mistaken as to
the effect of the Reform Bill. Great alarm was felt yesterday
from the Paris news. I hear to day that the Government pre-
vailed in the conflict. I have no confidence in a temporary
triumph over a principle that I believe was never subdued, and
can only be restrained by unintermitting coercion."
He rallied a little, and got through the sittings after term
pretty comfortably, giving his annual dinner to the King's
counsel ; but instead of asking each of them to drink wine with
him seriatim as formerly, he drank wine conjointly, first with
all those who sat on his right hand, and then with all those on
his left, hospitably admonishing, them to drink wine with each
other.
In July he went the Midland Circuit, as the lightest he could His last
circuit.
choose, and he was able to sit in Court and finish the business
at every assize town, notwithstanding the annoyance of a violent
cough and other alarming symptoms. After a short stay at
Leamington he returned to his seat at Hendon, and there spent
the long vacation ; sometimes yielding to despondence, and
334
KEIGN OF GEOEGE III.
A.D. 1832.
The long
vacation
before his
death.
CHAP, sometimes trying to amuse himself with making Latin verses,
and with classical reading, which used to be his solace.
Being obliged to come to town for a Council to determine
the fate of the prisoners convicted at the Old Bailey, he wrote
to Sir Egerton Brydges the following melancholy epistle, which
did not reach its destination till the writer was relieved from all
his sufferings, and transferred to a better state of existence.
" MY DEAR SIR EGERTON,
" I came to town yesterday to attend His Majesty on
the Recorder's report, and have received your letter this morn-
ing. I have lately suffered, and am still suffering, very severely
from an internal complaint, which they call an irritation of the
mucous membrane. It troubled me during all the circuit. I
got rid of it for a short time at Leamington, but it soon returned
with greater violence, and has for some time deprived me of
appetite, and produced great depression of spirits. Sir Henry
Halford, however, assures me that a medicine he has ordered
me will in time remove the complaint, and my confidence in him
induces me to trust it may be so, though after a trial of six
days I cannot say that I find any sensible improvement. God
bless you.
" Your most affectionate friend,
" TENTERDEN."
However, his mental faculties remained wholly unimpaired ;
and he was determined " to die, like a camel in the wilderness,
with his burden on his back." An important Government pro-
secution, in which I was counsel — The King v. Mayor of
Bristol — was appointed to be tried at bar immediately before
Michaelmas Term. This excited prodigious interest, as it arose
out of the Reform-Bill riots at Bristol, in which a considerable
part of the city was laid in ashes. The Chief Justice appeared
on the Bench with the other Judges, and continued to preside
during the first two days of the trial. I recollect one charac-
teristic sally from him, indicating his mortal dislike of long
examinations. Mr. Shepherd, the junior counsel for the Crown,
having asked how many horses were drawing a messenger's post-
His last
appearance
in court.
LIFE OF LOKD TENTEKDEN. 335
chaise sent in quest of the mayor, and being answered " four," CHAP.
Lord Tenterden sarcastically exclaimed in a hollow voice, " and v ^ — '
now, Sir, I suppose you will next get out from your witness AD-1832-
what was the colour of the post-boys' jackets" But his bodily
health was evidently sinking. When he went home in the
evening of the second day of the trial he had no appetite for
the dinner prepared for him, and he fancied that fresh oysters
would do him good. He ate some ; but they disagreed with
him, and an access of fever supervening, he was put to bed,
from which he never rose. Although attended by Sir Henry His death.
Halford, Dr. Holland, and Sir Benjamin Brodie, his disease
baffled all their skill. He became delirious and talked very
incoherently. Afterwards he seemed to recover his composure,
and, raising his head from his pillow, he was heard to say in a
slow and solemn tone, as when he used to conclude his summing-
up in cases of great importance, " And now, gentlemen of the
jury, you will consider of your verdict." These were his last
words : when he had uttered them, his head sunk down, and in
a few moments he expired without a groan.
According to directions left in his will, his remains were, in a His funeral.
very private manner, interred in the vaults of the Foundling
Hospital, of which he had been a governor. At the south-east
entrance to the hospital is to be seen his monument, with the
following modest inscription, written by himself only two months
before his death : —
" Prope situs est His epitaph.
CAROLUS BARO TENTERDEN
Films natu minor
Humillimis parentibus,
Patre vero prudenti matre pi£ ortus
Per annos viginti in causis versatus,
Quantum apud Britannos honestus labor
Favente Deo valeat
Agnoscas lector ! "
Underneath is added, by his pious son —
" Hsec de se conscripsit
Yir summus idemque omnium modestissimus."
The impartial biographer cannot say that he was a great man
— but he was certainly a great magistrate. To the duties of his
336
EEIGN OF GEOKGE III.
CHAP, judicial office he devoted all his energies, and on the successful
performance of them he rested all his fame. Authorship he
never attempted in his lifetime beyond his law book, which,
although it passed through various editions, is already out of
fashion and thrown aside, like an old almanack, as it was founded
on statutes many of which have been repealed, and on decisions
many of which have been reversed. A Diary which he kept,
from November 1822, to February 1825, now lies before me.
The following commencement led me to expect much useful
information and amusement from it : —
" I have often wished that my predecessors had left a Diary,
and that I was in possession of it."
But I am grievously disappointed. It contains very little that
is interesting to a succeeding Chief Justice or to any one else.
The diarist not only abstains from all notice of public events,
but he makes no remark of any value on any professional subject.
He never hints at any defects or improvements in the adminis-
tration of justice in his Court, and never introduces the name of
any counsel who practised before him. He confines himself to
dry details of the number of causes tried at the sittings, and his
expenses on the circuits. One might have expected some satirical
allusions to his brother Judges, for whom he had not a very high
respect ; but nothing is said of any of them that might not have
been published at Charing Cross. There is no ground for regret
that the Diary was not begun sooner or continued later.*
Neither on the Bench nor in society did he ever aim at jocu-
larity or wit, although, by accident or design, he once uttered a
pun. A learned gentleman, who had lectured on the law and was
* Beyond the extracts which I have given, I find nothing more curious
than the following table of his expenses on the Circuit : —
Spring, 1816 — Home .
£
. 243
7
d.
o
Summer, 1816— Oxford
Spring, 1817 — Western
.. ..
. 290
323
9
16
0
o
Summer, 1817— Norfolk
Spring, 1819— Norfolk
Summer, 1819— Midland
Summer, 1822— Northern
Summer, 1824— Western
:
. 251
. 165
. 274
. 203
. 374
7
15
9
3
0
0
0
0
0
0
LIFE OF LOKD TENTEKDEN. 337
too much addicted to oratory, came to argue a special demurrer CHAP.
before him. " My client's opponent," said the figurative advocate, < V '
" worked like a mole under ground, clam et secrete" His figures
and law Latin only elicited an indignant grunt from the Chief
Justice. " It is asserted in Aristotle's Rhetoric " — " I don't
want to hear what is asserted in Aristotle's Rhetoric," interposed
Lord Tenterden. The advocate shifted his ground and took up,
as he thought, a safe position. " It is laid down in the Pandects
of Justinian " — " Where are you got now ? " " It is a principle
of the civil law." — " Oh, sir !" exclaimed the Judge, with a tone
and voice which abundantly justified his assertion, " we have
nothing to do with the civil law in this Court." *
The extreme irregularity of the Judges in their conferences,
which there has often been occasion to deplore, once forced him
into the necessity of coining a word. He said he could not call
them Parliamentum Indoctum, but that he might well, call them
Parliamentum Bablitivum.
He was courteous in company, but rather stiff and formal in
his manners, as if afraid of familiarity and requiring the protec-
tion of dignified station — which probably arose from the recollec-
tion of his origin and of his boyish days. He would voluntarily
refer to these among very intimate friends, but he became
exceedingly uneasy when he apprehended any allusion to them
in public. Once, however, he was complimented upon his rise Compli-
, .... meat to him
under circumstances so extravagantly ludicrous that he joined in by the Lord
the general shout of laughter which, the orator called forth. Sir
Peter Laurie, the saddler, when Lord Mayor of London, gave a
dinner at the Mansion House to the Judges, and, in proposing
their health, observed, in impassioned accents, " What a country
is this we live in ! In other parts of the world. there is no chance,
except for men of high birth and aristocratic connections ; but
here genius and industry are sure to be rewarded. See before
* Townsend, 261. I should rather think, notwithstanding the Joe Miller
of Garrick catching an orange thrown at him on the stage, and exclaiming,
" This is not a civil orange ! " that the Chief Justice's pun was unintentional,
like that of Mr. Justice Blackstone, who says in his Commentaries, with
much gravity, that " landmarks on the sea-shore are often of signal service to.
navigation."
VOL. ITT. Z
338 REIGN OF GEOEGE III.
CHAP. yOU the examples of myself, the Chief Magistrate of the Metro-
Xjl V •
' y ' polis of this great empire, and the Chief Justice of England
sitting at my right hand — both now in the highest offices
in the State, and both sprung from the very dregs of the
people ! "
His recol- Lord Tenterden is placed in a very amiable point of view by
Canterbury. MACREADY, the celebrated tragedian, in a lecture which he
delivered to a Mechanics' Institute after he had retired from
the stage, and which he published with several others, possessing
great interest. The lecturer gives an account of a visit paid by
him to Canterbury Cathedral, under the auspices of a Verger,
who, by reading and observation, had acquired wonderful know-
ledge of architecture and mediaeval antiquities. Having intro-
duced us to his guide, the ex-tragedian thus proceeds : — " He
directed my attention to everything worthy of notice ; pointed out
with the detective eye of taste the more recondite excellence of
art throughout the building, and with convincing accuracy shed
light on the historical traditions associated with it. It was opposite
the western front that he stood with me before what seemed the
site of a small shed or stall, then unoccupied, and said, ' Upon
this spot a little barber's shop used to stand. The last time Lord
Tenterden came down here he brought his son Charles with
him, and it was my duty, of course, to attend them over the
Cathedral. When we came to this side of it he led his son up
to this very spot and said to him, 4 Charles, you see this little
shop ; I have brought you here on purpose to show it to you. In
that shop your grandfather used to shave for a penny ! That is
the proudest reflection of my life ! While you live never forget
that, my dear Charles? And this man, the son of a poor barber,
was the Lord Chief Justice of England. For the very reason,
therefore, that the chances of such great success are rare, we
should surely spare no pains in improving the condition of all
whom accident may depress or fortune may not befriend."
I have heard some complain, although I confess I myself never
saw any sufficient ground for the complaint, that after Abbott
had been several years Chief Justice, he was not only a martinet
in Court, but that he rigidly enforced the rules of evidence and
LIFE OP LORD TENTERDEN. 339
of procedure when presiding at his own table. The following CHAP.
amusing anecdote, recorded of him in the ' Quarterly Review,' < ,-I — >
I suspect is only entitled to the praise of being ben trovato : —
" He had contracted so strict and inveterate an habit of keep-
ing himself and everybody else to the precise matter in hand,
that once, during a circuit dinner, having asked a county
magistrate if he would take venison, and receiving what he
deemed air evasive reply : ' Thank you, my Lord, I am going
to take boiled chicken ;' his Lordship sharply retorted, ' That,
sir, is no answer to my question ; I ask you again if you will take
venison, and I will trouble you to say yes or no without further
prevarication ! ' '
At all times he showed an affectionate regard for the place of
his early education : — " In 1817, the centenary commemoration
of the school, he accepted an invitation to Canterbury, witnessed
the examination of the scholars, addressed the successful candi-
dates, and, after attending the usual service and sermon at the
Cathedral, dined with the masters and members of the institution
at the principal hotel of the city. In his speech after dinner he
expressed himself with feeling and effect, and declared that to
the free school of Canterbury he owed, under the Divine blessing,
the first and best means of his elevation in life. Nor was his
gratitude confined to words. With a tasteful retrospect of the
causes of his own success, he founded and endowed two annual
prizes — the one for the best English essay, the other for the best
Latin verse." *
Lest I should be misled by partiality or prejudice, I add, in
justice to the memory of Lord Tenter den, sketches of him by
very skilful artists. Thus is he portrayed by Lord Brougham : —
" A man of great legal abilities, and of a reputation, though Character
high, by no means beyond his merits. On the contrary, it may Tenter&n
be doubted if he ever enjoyed all the fame that his capacity and Brou°ham
his learning entitled him to. For he had no shining talents ; he
never was a leader at the bar ; his genius for law was by no
means of the depth and originality which distinguished Mr.
* 2 Towns., 237.
z 2
340 REIGN OF GEORGE III.
CHAP. Holroyd ; nor had he the inexhaustible ingenuity of Mr. Little-
dale, nor perhaps the singular neatness and elegance of Mr.
Richardson. His style of arguing was clear and cogent, but
far from brilliant ; his opinions were learned and satisfactory,
without being strikingly profound ; his advice, however, was
always safe, although sometimes, from his habitual and extreme
caution, it might be deficient in boldness or vigour. As a leader
he very rarely and only by some extraordinary accident ap-
peared, and this in a manner so little satisfactory to himself,
that he peremptorily declined it whenever refusal was possible, for
he seemed to have no notion of a leader's duty beyond exposing
the pleadings and the law of the case to the jury, who could
not comprehend them with all his explanation. Although his
reputation at the bar was firmly established for a long course
of years, it was not till he became a Judge, hardly till he
became Chief Justice, that his merits were fully known. It
then appeared that he had a singularly judicial understanding,
and even the defects which had kept him in the less ambitious
walks of the profession — his caution, his aversion to all that was
experimental, his want of fancy — contributed, with his greater
qualities, to give him a very prominent rank indeed among our
ablest Judges. One defect alone he had, which was likely to
impede his progress towards this eminent station ; but of that he
was so conscious as to protect himself against it by constant and
effectual precautions. His temper was naturally bad ; it was
hasty and it was violent, forming a marked contrast with the
rest of his mind. But it was singular with what success he
fought against this, and how he mastered the rebellious part of
his nature. Indeed it was a study to observe this battle, or
rather victory, for the conflict was too successful to be apparent
on many occasions. On the bench it rarely broke out, but there
was observed a truly praiseworthy feature, singularly becoming,
in the demeanour of a Judge. Whatever struggles with the
advocate there might be carried on during the heat of a cause,
and how great soever might be the asperity shown on either part,
all passed away — all was, even to the vestige of the trace of it,
LIFE OF LORD TENTERDEN. 341
discharged from his mind, when the peculiar duty of the Judge CHAP.
came to be performed ; and he directed the jury, in every par- * r- — '
ticular, as if no irritation had ever passed over his mind in the
course of the cause. Although nothing can be more manifest
than the injustice of making the client suffer for the fault or
the misfortune of his advocate — his fault, if he misconducted
himself towards the Judge ; his misfortune, if he unwittingly
gave offence — yet, whoever has practised at Nisi prius, knows
well how rare it is to find a Judge of an unquiet temper, espe-
cially one of an irascible disposition, who can go through the
trial without suffering his course to be affected by the personal
conflicts which may have taken place in the progress of the
cause. It was, therefore, an edifying sight to observe Lord Ten-
terden, whose temper had been visibly affected during the trial
(for on the bench he had not always the entire command of it,
which we have described him as possessing while at the bar),
addressing himself to the points in the cause, with the same
perfect calmness and indifference with which a mathematician
pursues the investigation of an abstract truth, as if there were
neither the parties nor the advocates in existence, and only bent
upon the discovery and the elucidation of truth."
The following discriminating praise and mild censure are
meted out to him by Mr. Justice Talfourd, the author of ' Ion ' : —
"The chief judicial virtue of his mind was that of impar- — by Mr.
tiality ; not mere independence of external influences, but the Talfourd.
general absence of tendency in the mind itself to take a part, or
receive a bias. How beneficial this peculiarity must prove in the
judicial investigation of the ordinary differences of mankind, is
obvious ; yet in him it was little else than a remarkable absence
of imagination, passion, and sympathy. In him the disposition
to single out some one object from others for preference — the
power and the love of accumulating associations around it and of
taking an abstract interest in its progress, were wholly wanting.
The spirit of partisanship, almost inseparable from human nature
itself, unconsciously mingling in all our thoughts, and imparting
interest to things else indifferent, is especially cherished by the
342 KEIGN OF GEORGE III.
habits and excitements of an advocate's profession, and can,
therefore, seldom be wholly prevented from insinuating itself
into the feelings of the most upright and honourable Judges.
But Lord Tenterden, although long at the bar, had rarely exer-
cised those functions of an advocate which quicken the pulse and
agitate the feelings ; he had been contented with the fame of the
neatest, the most accurate, and the most logical of pleaders ; and
no more thought of trials in which he was engaged as awakening
busy hopes and fears, than of the conveyances he set forth in his
pleas as suggesting pictures of the country to which they related.
The very exceptions to his general impartiality of mind, par-
took of its passionless and unaspiring character. In political
questions, although charged with a leaning to the side of power,
he had no master prejudices ; no sense of grandeur or gradation ;
as little true sympathy with a high oppressor as with his victims.
On the great trials of strength between the Government and the
people, he was rarely aroused from his ordinary calmness ; and
he never, like his predecessor, sought to erect an independent
tyranny by which he might trample on freedom of his own proper
wrong. He was ' not born so high ' in station, or in thought, as
to become the comrade of haughty corruption. If seduced at all
by power, it was in its humbler forms — the immunities of the
unpaid magistracy and the chartered rights of small corporations,
which found in him a congenial protector. If he had a preferable
regard in the world, beyond the circle of his own family and
friends, it was for these petty aristocracies, which did not repel
or chill him. If he was overawed by rank, he was still more
repelled by penury, the idea of which made him shiver even
amidst the warmth of the Court of King's Bench, in which alone
he seemed to live. His moral like his intellectual sphere was
contracted ; it did not extend far beyond the decalogue ; it did
not conclude to the country, but was verified by the record. His
knowledge, not indeed of the most atrocious but of the meanest
parts of human nature, made him credulous of fraud ; a sugges-
tion of its existence always impelled his sagacity to search it out ;
and if conspiracy was the charge, and an attorney among the
LIFE OF LORD TENTERDEN. 343
defendants, there were small chances of acquittal. The chief
peculiarity and excellence of his decisions consist in the frequent
introduction of the word ' reasonable ' into their terms. He so
applied this word as in many instances to relax the severity of
legal rules, to mediate happily between opposing maxims, and to
give a liberal facility to the application of the law by Judges
and juries to the varying circumstances of cases, which before
had been brought into a single class. If he would not break
through a rule for the greatest occasion, he was acute in dis-
covering ways by which the right might be done without seeming
to infringe it; and his efforts to make technical distinctions
subservient to substantial justice were often ingenious and
happy."
I reserve, as a pleasing finale for this memoir, Lord Tenter- His love of
den's ardent and unabated devotion to classical literature, which nature
confers high distinction upon him, and is so creditable to our Jnd tal,ent
for making
profession, — showing that the indulgence of such elegant tastes Latin
is consistent with a steady and long continued and successful
application to abstruse juridical studies, and with the exemplary
performance of the most laborious duties of an advocate and of
a judge. Lord Eldon never opened a Greek or Latin author
after leaving college, and Lord Kenyon could never construe
one. Lord Tenterden in his busiest time would refresh himself
from the disgust of the Liber Placitandi, or the Registrum
Brevium, by reading a Satire of Juvenal, or a chorus of Euri-
pides. He likewise kept up a familiar knowledge of Shakespeare,
Milton, Dry den, and Pope, but he was little acquainted with
the modern school of English poets. When Sir James Scarlett
on one occasion referred to the poetry of Southey and Words-
worth as familiar to the jury, Lord Tenterden observed, that
" for himself he was bred in too severe a school of taste to
admire such effusions."
Although he had long ceased to make verses himself, a few
years before his death his passion for this amusement returned, and
in the following letter to Sir Egerton Brydges, dated 15th Sep-
tember, 1830, he gave an interesting account of his "hobby."
344 REIGN OF GEOKGE III.
CHAP. "I have always felt that it might be said that a Chief Justice
and a peer might employ his leisure hours better than in writing
nonsense verses about flowers. But I must tell you how this
fancy of recommencing to hammer Latin metres after a cessa-
tion of more than thirty years began. Brougham procured for
me from Lord Grenville a copy of some poems printed by him
under the title of ' Nugse,' chiefly his own, one or two, I believe,
of Lord Wellesley's, written long ago, and a piece of very good
Greek humour by Lord Holland. The motto in the title-page
is four or five henda3casyllabic lines by Fabricius. At the same
time John Williams of the Northern Circuit, now the Queen's
Solicitor-General, who is an admirable scholar, sent me four or
five Greek epigrams of his own. I had a mind to thank each
of them, and found I could do so with great ease to myself in
ten hendaecasyllables. This led me to compose two trifles in
the same metre on two favourite flowers, and afterwards some
others, now I think twelve verses in all, in different Horatian
metres, and one, an Ovidian epistle, of which the subject is the
Forget-me-Not. One of the earliest is an ode on the con-
servatory in the Alcaic metre, of which the last stanza contains
the true cause and excuse of the whole, and this I will now
transcribe :
' Sit fabulosis fas mihi cantibus
Lenire curas ! Sit mihi floribus
Mulcere me fessum, senemque
Carpere quos juvenis solebam.'
" You see I am now on my hobby, and you must be patient
while I take a short ride. Another of the earliest is an ode in
the Sapphic metre on the Convallaria Maialis, The Lily of the
Valley. I am a great admirer of Linneeus, and my verses
contain many allusions to his system, not, however, I trust quite
so luscious as Darwin's Loves of the Plants, which, I believe,
were soon forgotten. I have not seen the book for many years.
I have one little ode written in the present year on a plant
called the Linnsea Borealis, which, Sir J. Smith tells us, was a
name given to it from its supposed resemblance to the obscurity
LIFE OF LOED TENTEKDEN. 345
of the early days of the great botanist. It is not common, and CHAP.
possesses no particular attraction. Smith says it has sometimes v r- — '
been found on the Scottish mountains, and I have a plant sent
to me last spring by Dr. Williams. I will send you a copy of
this also. You must give me credit for the botanical correct-
ness of the first part ; of the rest you can judge, and you may
criticise as much as you please. There are three other metres
of Horace on which I should like to write something, but what,
or when, I know not. It is now high time to quit this subject."
By the favour of the present Lord Tenterden, I have before Specimens
of his Latin
me a copy of all the poems here referred to, and several more poems.
which the Chief Justice afterwards composed to cheer his declin-
ing days. From these I select a few for the gratification of my
readers. It should be known that botany had been taken up by
the Chief Justice late in life as a scientific pursuit, and that this
gave the new direction to his metrical compositions.
DOMUS CONSERVATOKIA.
Hand nos, ut Urbem, Flora, per inclytam
Olim Quirites, Te coliimis Deam,
Fictumve, ccelatumve uumen
Marmoreis domibus locamus ;
Quas impudicis cantibus ebria
Lascivientum turba jocantium,
Festis salutatura donis,
Saltibus et strepitu revisat.
Sed rare aineno Te vitrea excipit
uEdes, remissis pervia solibus,
Qua rideas imbres nivales
Et gelidis hyemem sub Arctis.
Secura jam non hospitio minus
Nostro foveris, sub Jove candidum
Quam si benigno Tu Tarentum, aut
Niliacum coleres Syenem.
Csecis pererrat tramitibus domum
Ardor, quietis Iseta laboribus
Servire, jucundoque curas
Auxilio tenues levare.
Ergo sub auris plurima non suis
Ardentis Austri progenies viget,
Neve Occidentales Eois
Addere se socias recusant
346 BEIGN OF GEORGE III.
CHAP. Herbseve, floresve, aut patrium dolent
LTV. Liquisse coelum, fervidus abstulit
Si nauta, mercatorve prudens,
Vel peregrina petens viator
Misit colendas ; Gentibus exteris
Spectandus hospes ; salvus ab sestubus
Uliginosis, nubibusque
Lethifera gravidis arena.
Non tale monstmm, naribus igneos
Spirans vapores, cessit Jasoni ;
Nee tale donum ssevientis
Conjugis innocuam Creontis
Natam perussit : nee vagus Hercules
Tarn dira vicit, perdomuit licet
Hydrasque, Centaurosque, clavo, et
Semiferum validus Giganta.
Sit fabulosis fas mini cantibus
Lenire curas ! Sit mihi floribus
Mulcere me fessum, senemque
Carpere quos juvenis solebam.
Prid. Cal Jan. 1828.
GALANTHUS.
Anni primitise, Brumse Phoebique nivalis
Pallida progenies,
Frigoris atque gelu patiens quse caulibus albam
Findis humum teneris,
Seu proprium de lacte Tibi, potiusve cadente
De nive nomen liabes,
Te juvenesque senesque hilares agnoscimus ultro
Auspiciumque tuum.
Tu monstras abituram hiemem, redituraque vernec
Tempora laetitise ;
Tu Jovis aspectus mutari, et nigra serenis
Cedere fata mones ;
Demittensque caput niveum, floresque pudicos
Stipite de tereti,
Nil altum moliri homines, sed sorte beatos
Esse jubes humili ;
Et tua blanditias juvenum nunc virgo suorum
Accipit, ipsa lubens,
Haud secus ac Zephyros si Sol Aurasque tepentes
Duceret Oceano.
Scilicet hyberno plantis quse tempore florent
Vis genialis inest,
Atquo illis miros intus Natura colores
Sufficit, alma parens,
LIFE OF LORD TENTERDEN. 347
JEthere sub gelido pecudum licet atque ferarum C HAP.
Langueat omne genus, LJ V.
Et Cytherea tremens, palMque infonnis agresti,
Algeat ipsa Venus,
Maternoque puer vix tendere debilis arcum
De gremio valeat.
Prid. Cal Feb. 1829.
CONVALLARIA MAIALIS.
Quo pedes olim valuere, robur,
Lsetus et mentis juvenalis ardor,
Si tuo, dulcis, redeunte curru,
Maia redirent ;
Qusererem inculti nemorosa runs,
Impiger densos penetrare valles,
Qua suos grata renovent sub umbra
Lilia flores.
Ducat baud fallax odor insolentem,
Et loquax flatu nimis aura grato,
Abditam frustra sobolem recessu
Prodet avito.
ConditiiS molli foliorum amictu,
Dum tener ventos timet atque solem,
Fortior tandem gracili racemus
Stipite surgit,
Flosculis nutans oneratus albis ;
Non ebur lucet, Pariumve marmor,
Purius, nee quae decorat pruina
Cana cupressos,
Talis et pectus niveumque collum,
Advena viso, pudibunda texit
Insulaa ^go, leviterque cymbam &
Littore trusit ;
Voce sed leni facieque mota,
Hospitem fido prius indicatum
Somniis vati, magicas ad asdes
Nescia duxit ;
Quse diu, patris comes exulantis,
Vallium saltus coluit quietos,
Lseta si nigros roseo ligaret
Flore capillos ;
Mox tamen tristi monitu parentis
Territa, absentique timens, puella,
Nobilis supplex, petere ipsa Regem
Ausit et urbern.
REIGN OF GEORGE III.
Otii lassum accipitrem canemque
Seque captivum juvenem, querentis,
Et lacus dulces, Elenamque molli
Voce sonantis,
Palluit cantus ; — adiit trementem
Lene subsidens, generosus hospes,
Simplici pluma, viridisque vestc
Notus, et ore.
Et sua, quern tu petis, hie in arce
Kegius jam mine, ait, est Jacobus ;
Virgini nunquam gravis invocanti,
Mitte timores ;
Te manent intus pater, atque patre
Charior ; nudis Procerum capillis
Ccetus exspectat, poterisque opertum
Noscere Kegem ;
Et vagi posthac Equitis pericla
Forsan, et suaves Elense loquelas
Et levem vates memori phaselum
Carmine dicet.
Gal. Maii, 1828.
Present re- I have only further to state, that the Chief Justice left
presentative
of the Chief not a splendid, but a competent fortune to his family. He is
now represented by his eldest son John, the second Lord
Tenterden, a most amiable and excellent man. As the title
was worthily wron, I trust that it may long endure, and that it
may be as much respected as if he who first bore it had " come
in with the CONQUEROR."
( 349 )
INDEX
VOLUMES I., II, AND III.
INDEX.
ABBOT.
ABBOT, Archbishop, trial and acquit-
tal of on a charge of manslaughter,
i. 314 — a Commissioner of the
Treasury, 306.
A'BECKET, Thomas, fined and im-
prisoned, i. 19 — fame of the
miracles at his shrine, 21 — im-
mense riches arising therefrom, 31.
ABINGDON, Earl of, conviction and
imprisonment of for a libel on his
attorney, iii. 64.
ABINGER, Lord, influence of, when
counsel, over Lord Tenterden, iii.
294 — ruling by, respecting the
doctrine mooted in Laugher v.
Pointer, 306.
ABNEY, Mr. Justice, death of, from
gaol fever, caught when attending
the Old Bailey Sessions, ii. 230.
ABRIDGMENTS of the Common Law,
interesting to the Antiquarian
Lawyer — decisions of Gascoigne,
i. 124— by Kolle, Chief Justice,
Digest, 421, 433.
ACCOUNTANTS, public, attacks on
in the House of Commons, by -Lord
Kenyon, iii. 18, 23.
ACEE, Ranulphus de Glanville killed
at, siege of, i. 34.
ACTS of political importance to be
presumed as proceeding from the
advisers of the Crown, not from
the Sovereign, ii. 476.
ADDISON, Right Hon. Joseph, suc-
cessful performances of his tragedy
of 'Cato,' when brought upon the
stage, ii. 168— poetry preferred by
to politics, 333.
ANATOMY.
ADOLPHUS, Mr., readv retort of, to
Sir James Scarlett, iii. 295.
ADVICE, Letters of, to sons and
grandchildren, by Sir Matthew
Hale, i. 583.
AGE of Reason, by Tom Paine, con-
viction and imprisonment of Wil-
liams for publishing, iii. 56.
ALDERLEY, near Wotton - under-
Edge, birth and burial place of
Sir Matthew Hale, i. 512, 579.
ALIEN Bill of 1816, incident during
the debate on the, iii. 212.
ALLIBONE, Sir Richard, a professed
papist, appointed Justice of the
King's Bench, ii. 92 — reckless and
foolish conduct! of, on the trial of
the Bishops, 52, 110 — illness and
premature death of, 112.
ALMON, REX v., trial and conviction
of, for reprinting the letter of
Junius to the King, ii. 477.
ALNWICK Castle, besieged by the
King of Scotland in 1174, i. 20.
AMBASSADORS, foreign, their rights
judicially considered, i. 428 — sta-
tute declaring the immunities and
' privileges of, iii. 165.
AMERICA, cause and progress of the
disputes with, ii. 467, 495, 499,
505 — disasters of our troops in,
504, 533.
AMIENS, Peace of, in 1802, iii. 146,
152, 172— brief duration of, 175,
182, 183, 193.
ANATOMY Bill, speech against, by
Lord Tenterden, iii. 323.
352
INDEX.
ANDERSON.
ANDERSON, Sir Edward, Chief Jus-
tice of Common Pleas, refuses to
become Chief Justice of England,
i. 218.
ANGLO-SAXONS, oppression of, by
the Normans, i. 6 ; mutinous pro-
ceedings by, 8, 12 — kind treat-
ment of, by Henry I., 16.
ANNAPOLIS, epitaph to Lord Presi-
dent Bradshaw at, i. 491.
ANNE, QUEEN, character of the mem-
bers constituting first House of
Commons summoned by, ii. 156
— important political events in the
latter part of the reign of, 167 —
dislike of to the appointment of
Sir Thomas Parker as Chief Jus-
tice, 179.
ANSTEY'S Pleader's Guide, a poem
highly esteemed by Porson and
others, iii. 271.
APPEAL — of murder, proceedings in,
i. 27 ; ii. 216— abolished by sta-
tute, iii. 171 — Court of, for Cri-
minal Cases, created by statute, i.
185 — to a Court of Error allowed
under Common Law Procedure
Act, when the Judges are divided,
iii. 306.
" APPRENTICE to the Law," the early
designation of barristers until
called Serjeants, i. 399 ; ii. 28 —
costume of, in 17th century, i.
585.
APPRENTICES of London, unjusti-
fiable prosecution of on a charge
of high treason, for pulling down
some disorderly houses in the
Moorfields, in 1668, ii. 30.
ARBITRATION, ancient practice among
Judges of settling differences pri-
vately by, i. 135 — right of parties
to settle disputes by, fully esta-
blished by judgments of the Court
of Queen's Bench and the House
of Lords, iii. 35, 156.
ARIANISM of the English Presbyte-
rians in the first part of the
18th century, ii. 235.
ARLOTTA, the tanner's daughter of
Falaise, descendants of, i. 4.
ARMAGH, titular Archbishop of, un-
ATKINS.
fair trial of before Pemberton, for
alleged treason, ii. 36 — indefensi-
ble and degrading execution of, 39.
ARNE, Edward, death of, in prison,
and prosecution of his gaolers for
alleged murder, by neglect, ii.
204.
ARNOLD, the King's Brewer, the only
dissentient juror on trial of the
Bishops, ii. 111.
ARTICLES, Thirty-nine, angry debate
upon, in Convention Parliament,
i. 541.
ASCHAM, assassination of, at Madrid,
i. 472.
ASHBY v. WHITE, memorable trial
of, establishing the right of elec-
tors to maintain actions for the
malicious rejection of their votes
by returning officers, ii. 157, 161,
166.
ASHFORD v. THORNTON, trial by
battle on an appeal of murder,
awarded in, iii. 170 — appellee dis-
charged, 171 ; ii. 207 n.
ASHURST, Sir W. H., appointed a
Justice of the King's Bench in
1770, ii. 395.
ASKE, Eichard, sole Judge of the
Upper Bench in 1655, i. 439.
ASSIZES of Jerusalem, its historical
value, i. 29 — Bloody, prisoners
transported at, by Judge Jeffreys,
ii. 77, 100 — recollection of by the
inhabitants of the western coun-
ties, 78.
ASSOCIATION, Protestant, of London,
monster petition from, to the
House of Commons, ii. 517 —
riotous proceedings fomented by,
521-4.
ASTON, SirE., Chief Justice of Com-
mon Pleas in Ireland, appointed
a Justice of the King's Bench in
1765, i. 395 — a Commissioner of
the Great Seal, in 1769 and 1770,
ii. 291, 469.
ATHOL family, claim by for addi-
tional compensation for rights in
the Isle of Man taken from them,
debated, iii. 173.
ATKINS, Edward, Justice, refuses to
INDEX.
353
ATKINS.
act as Judge after the execution
of Charles I., i. 470.
ATKINS, John, committal of by
Lord Holt for pretending to be a
prophet, ii. 173.
ATKYNS, Sir Robert, interference
by, in the House of Commons
on behalf of Kelynge, Chief Jus-
tice, i. 510 — constitutional senti-
ments of, at Oxford assizes, as to
the right of the people to petition
the Crown for redress of grievances,
ii. 16 — removed from the Bench
by James II. for his honesty, 53
— pamphlet by, against the King's
dispensing power, 88— appointed
Chief Baron in 1688, 117.
ATTORNEYS, examination of, directed
by statute, i. 132 — to be sworn
every term, ib. — exclusive occu-
pation by of the Inns of Chan-
cery, 515 — strictures upon by
Sir M. Hale, 585— by Walpole,
ii. 276— by Cobbett, iii. 3— ill
usage of, by Lord Kenyon, 83 —
opinion of, entertained by Lord
Tenterden, 342 — modern disuse of
the title of, 93.
ATTORNEY-GENERAL, emoluments
of the office of, i. 266.
AUBREY'S Miscellanies, quotations
from, i. 211, 228.
AUCTION, law respecting sales by
mock, ii. 410.
AULA Regis, origin and duties of,
i. 2, 5, 23, 185— Puisne Judges
of, 41, 54 — trials before, 42 — abo-
lition of, 64, 70 — appellate juris-
diction of vested in the Parlia-
ment, 71.
AYLESBURY election, case of Ashby
v. White, respecting votes re-
jected at an, ii. 157, 161, 166—
Marquis of, ancestors of, i. 69.
B.
BACON, Justice, refuses to act as
Judge after execution of Charles
I., i. 470.
BACON, Lord, efforts by, to be made
Solicitor-General, i. 231 — anguish
at the selection of Fleming,^ 232
— obtains the office, 236— splen-
VOL. III.
BALLOONS.
did eulogium by, on Lord Coke,
239 — parliamentary reputation of,
251 — patronized by Lord Essex,
ib. — ungrateful and infamous be-
haviour of, on the trial of Lord
Essex, 253— King's Counsel, 260
—letter of defiance to Coke, 261
— speech to the King, respect-
ing proclamations, 274 — reasons
by, for the appointment of Sir E.
Coke to be Chief Justice of Eng-
land, 276 — made Attorney-Ge-
neral, 277 — letter to the King,
respecting the charge against the
Earl of Somerset, 280 — alarm of,
that Lord Coke should be ap-
pointed Chancellor, 281 — letter
by, to the Judges, respecting
commendams, 283 — letter respect-
ing Coke's Reports, 289 — im-
glacable enmity of, to Sir E.
oke, 295 — indiscreet attempts
of, to break off the marriage be-
tween Sir J. Villiers and Lady F.
Coke, 299 — impeachment and
conviction of, for taking bribes,
311— sentence on, 312, 365—
character of, contrasted with that
of Lord Coke, 345, 346— his bitter
speech against Oliver St. John,
450 — maxim of respecting over-
loquacious Judges, 548. — See
Lives of the Chancellors, ii. 266.
BACON, Roger, chaplain to Henry
III., anecdote of, i. 45.
BADMINTON, case respecting villein-
age within manor of, i. 188 —
mansion, suggestion of Sir M.
Hale to the Duke of Beaufort,
respecting its construction, 353.
BAGS carried by barristers, ancient
and modern rules respecting, iii.
106.
BAMRIDGE, Thomas, Warden of the
Fleet, his trial and acquittal for
murder of a prisoner by alleged
neglect, ii. 206, 216.
BALDWIN, Sir John, Chief Justice
of Common Pleas, death of, i. 174.
BALIOL, John, contest of, for the
crown of Scotland, decided in his
favour by arbitration, i. 68.
BALLOONS, trespass by travelling in,
considered, iii. 169 — voyages i;i,
2A
354
INDEX.
BALMARINO.
by Lunardi, in county of Fife,
anecdote related by Lord Camp-
bell respecting, 258.
BALMARINO, Lord, pleads guilty to
the charge of high treason for
aiding the Pretender in 1745, ii.
359 — erroneous anecdote narrated
by Horace Walpole respecting,
363.
BANBURY, Knowllys claiming to be
Earl of, charge of murder against,
ii. 148.
BANKES, Sir John, Attorney-Ge-
neral, i. 401 — made Chief Justice
of the Common Pleas, 458 —
death, 468.
BANNOCKBURN, famous battle of,
i. 81.
BAR, the English, power of admit-
ting to by the Inns of Court judi-
cially recognised, i. 243, 515 ; ii.
417 — course of practice at, in the
17th century, i. 520 — penury of
learning and ability at in 1676,
ii. 1 — pupilising system of educa-
tion for, 328 — contempt of litera-
ture attributed to, 277 — solicita-
tion of briefs for a beginner on
circuit reprobated by, 236 — jea-
lousy of the, at the favouritism
of Judges to individual members
of, iii. 295.
BARBERS, ancient fraternity of,
ready wit and entertaining in-
formation of, iii. 249.
BARILLON, ambassador of France to
James II., original despatches of
to his court examined by Mr.
Macaulay, ii. 78.
BARNARD, Sir John, alderman of
London, interference of, on behalf
of Elizabeth Canning, ii. 277.
BARNET, battle of, gained by Ed-
ward IV., i. 152.
BARNWOOD, near Gloucester, birth-
place of Saunders, Chief Justice,
ii. 59 — bequest by him to the
poor of, 73.
BARRISTER, consulted in person in
17th century, i. 586 — wigs first
worn by, at the Restoration, 482 ;
early designation of, ii. 28 — de-
fects of the system of legal educa-
BAYLET.
tion of, 327 — regulation respect-
ing bags of, iii. 106 ; continued
youth of, 272 — travel the circuit
on horseback, 273 — appointed
King's Counsel formerly required
to take the Sacrament, 319.
BARTHOLOMEW, Eoger, burgess of
Berwick-on-Tweed, complaint by
to Edward I. against certain Eng-
lish Judges, who exercised juris-
diction on the north side of the
Tweed, i. 81.
BASSET, Philip, last Chief Justiciar,
i. 58 — taken prisoner at the battle
of Lewes, 60.
BASSET, R., Chief Justiciar, a com-
panion of William I., i. 16.
BATHING, decision of Lord Tenterden
against a common-law right of the
. public to the use of the sea-shore
for, iii. 298.
BATHURST, Lord Apsley, Justice of
the King's Bench, decision of,
in Buxton v. Mingay, respecting
medical men, ii. 276 — made Lord
Commissioner of Great Seal, 469
— made Lord Chancellor, 490 —
incapacity of for the office, 495,
499. — See Lives of the Chan-
cellors, v. 432.
BATTLE, trial by, or grand assize,
form of proceedings in, i. 27 —
awarded in an appeal of murder,
in Ashford v. Thornton, 104 ;
iii. 170 — abolished by statute, ii.
207 ; iii. 171.
BAXTER, Richard, appointed a King's
Chaplain, i. 545 — intimacy of,
with Sir M. Hale, 568 — imprison-
ed for non conformity, 570 — his
anecdotes of Sir M. Hale, 572,
585, 587-588 — unfair trial of, be-
fore Jeffreys, ii. 76.
BAYEUX tapestry, events of the Nor-
man invasion noticed in, i. 4.
BAYLEY, Rt. Hon. Sir John, Justice
of King's Bench, iii. 221, 287—
Baron of Exchequer, i. 573— Lord
Raymond's Reports edited by, ii.
211— ease and delight of at nisi
prius trials, 397 — appointment as
Judge, iii. 236 — character and
legal qualifications of, 155, 291.
INDEX.
355
BEAUVOIR.
BEAUVOIR, Dr. 0., a learned man,
Master of Canterbury Cathedral
School at the accession of George
III., iii. 250, 253.
BEDFORD castle, invested and taken
by Henry III., i. 49.
BEDFORD, Earl of, prosecuted in the
Star Chamber, i. 452 — made Lord
Treasurer, 458.
BEDINGFIELD, Sir Henry, Chief
Justice of Common Pleas, death
of, ii. 100.
BEDINGHAM, Justice, resigns his
place as Judge on the execution
of Charles I., i. 470.
BEDLOE, testimony of disbelieved by
juries, ii. 13, 15 — complaint by
to the Council voted false, 19.
BEGUM charge, speech of Lord Ellen-
borough, respecting the, on the
trial of Warren Hastings, iii. 126.
BELKNAPPE, Robert, Chief Justice
of Common Pleas, i. 109 — signs,
under coercion, the answer at
Nottingham — arrested and con-
victed of treason, 110 — attainted,
111 — transported to Ireland, 112
— return to England and death,
113 — attainder reversed, 114.
BELKNAPPE, Lady, action by as a
feme sole during the banishment
of her husband, i. 113 ; iii. 47.
BELLETT, ex parte, application for a
writ de ventre inspiciendo granted
in, iii. 34.
BENEFACTA, R. de, Chief Justiciar,
a Norman, i. 12 — birth, conduct at
Hastings, ample rewards of, 13.
BENEVOLENCES, or compulsory loans,
legality of, disputed by Oliver St.
John, i. 450.
BERKELEY, Lady Harriet, trial re-
specting the alleged seduction of,
ii. 40.
BERKELEY, Mr. Justice, arrested on
the judgment seat and committed
a close prisoner to Newgate, i. 405.
BERKELEY, Sir John, Governor of
Exeter, orders the immediate exe-
cution of a parliamentarian officer,
i. 418.
BKXWELL v. CHBISTIE, decision in,
BOLEYN.
respecting the rights of purchasers
at auctions, ii. 410.
BIGOD, Hugh, a distinguished soldier
and lawyer, i. 55 — makes a cir-
cuit, 56 — flight from the battle of
Lewes, 57.
BILLING, Sir T., parentage, i. 145
— joins the Yorkists, 146 — Justice
of King's Bench, 147 — Chief
Justice, 148 — conduct at Bur-
dett's trial, 149 — again a Lancas-
trian, 151 — again a Yorkist, 152
— decisions of, in the Year Books,
153— death, 154.
BISHOPS, their legal right to hunt in
a park asserted, i. 314 — bill for
the eradication of, 461 — for the
removal of from House of Lords,
462 — trial of the seven, ii. 48,
104, 113 — counsel employed for,
48, 56.
BLACKSTONE, Sir W., appointed a
Justice of the King's Bench in
1770, ii. 395 — Commentaries on
the Laws of England by, quota-
tions from, i. 134, 150, 513, 567 ;
iii. 38 — patronized by Lord Mans-
field, ii. 378 — argument of, in the
famous case of Perrin v. Blake,
433 — his pure style of writing,
i. 62 ; ii. 566— legal argument of,
against Lord Mansfield as to the
application of the rule in Shelley's
case, 564 — unintentional pun of,
iii. 337.
BLATHWAYT, Mr. Secretary, evi-
dence of, on the trial of the
Bishops, ii. 49.
BLOIS, P. de, letter from, to Henry
II. on the administration of justice
in the Aula Eegis, i. 23.
BLUNDELL v. Catterall, important
decision in, denying the common
law right of the public to the
use of the seashore for bathing,
iii. 298.
BLUNT, Sir C., trial of, for partici-
pation in Essex's rebellion, i. 221.
BODLEIAN Library, ancient MSS.
contained in, i. 78.
BOLEYN, Queen Anne, discussion
respecting the trial of, and the
sentence to be pronounced, i. 168.
2A2
35G
INDEX.
" BOLTS."
" BOLTS " at the Inns of Court, i.
160.
BONREPAUX, the French agent, de-
spatches of, ii. 79.
BOOKS, piracy of obscene, how re-
strained by the English law, iii.
301.
BOOTH, Mr., the celebrated con-
veyancer, intimacy and friendship
of, with Lord Mansfield, ii. 348,
436 — ' Contingent "Remainders,'
dedicated to, by Mr. Fearne, 435.
BOSWELL'S Life of Johnson, extracts
from, relating to Lord Mansfield,
ii. 573, 574.
BOTANICAL studies, taken up by
Lord Tenterden late in life as a
scientific pursuit, iii. 345.
BRABACON, Roger de, Chief Justice,
a lawyer regularly trained, i. 78 —
an admirable Judge, 79 — address
by, to the Scottish Parliament,
80 — assists in the subjection of
Scotland, 81 — made Chief Justice
of the King's Bench, 82 — speech
to English Parliament, death, de-
scendants, 83.
BRACTON, Henry de, Chief Justiciar,
a most enlightened and accom-
plished author, i. 62 — his work
'De Legibus,' &c., 63 — its me-
thodical and clear style, 64 — his
remarks on the royal preroga-
tive, 272 — remarks by, respecting
ports and navigable rivers, iii.
299.
BRADSHAW, Lord President, origin
and principles of, i. 479 — becomes
a Serjeant, 480 — chosen president
of the High Court of Justice, 481
— his conduct during the King's
trial, 482— on the trial of Duke
Hamilton and Lord Capel, 485 —
opposes Cromwell, 487 — death,
489 — epitaph on, in America, 491.
BRAMBRE, Sir N., thrice Lord Mayor
of London, i. 100 — knighted for
assisting to kill Wat Tyler, 104 —
ambush planted by at Charing
Cross, 101 — impeached by the
barons, 102 — taken prisoner, 103
— demands wager of battle, 104.
BRAMSTON, Francis, son of the Chief
BROUGHAM.
Justice, Baron of the Exchequer,
i. 408.
BRAMSTON, Sir John, parentage, i.
398— made Chief Justice of Eng-
land, 399 — opinion respecting the
legality of ship-money, 400 — un-
becoming conduct in the Star-
Chamber, 403— proposal by, for
placing the Bishop of Lincoln in
the pillory, 404— impeachment by
the Long Parliament, 405 — dis-
missed for refusing to attend the
King at York, 406, 417— death,
burial-place, descendants, 408.
BRAYBROOKE, Lord, well-edited edi-
tion of the Bramston Autobiogra-
phy by, i. 408.
BREDA, declaration from, terms of
the, by the King, i. 494, 537,
546, 568.
BRIDGMAN, Sir 0., made Chief Baron
at the Restoration, i. 492 — prac-
tised as a Chamber Counsel during
the Commonwealth, refusing the
oath of allegiance to Cromwell,
493— made Chief Justice of the
Common Pleas, 546.
BRISTOL, Bishop of (Newton), his
letters to Lord Mansfield, ii. 502,
534 — remarks by, on the cele-
brated speech of Lord Mansfield
vindicating the employment of
the military for the purpose of
quelling the anti-popery riots, 531
— character of Lord Mansfield by,
581.
BRISTOL, Rex v. Mayor of, memor-
able trial at bar respecting the
Reform-bill riots, iii. 334.
BRITISH subjects, rights of, in dis-
tant parts of the globe established
by Lord Mansfield in Fabrigas v.
Mostyn, ii. 414.
BROMLEY, Sir Thomas, Solicitor-
General, Chief Justice of Kind's
Bench, i. 144, 178— made Lord
Chancellor, 191, 212 — part taken
by, on the trial of Mary Queen
of Scots, 206. — See Lives of the
Chancellors, ii. 113.
BROUGHAM, Lord, ' Statesmen/ by,
ii. 331, 465— oratory of, 562-
remarks by, on the manners,
INDEX.
357
BROWN.
knowledge, and classical wit of
Lord Mansfield, 569 — speeches
by, iii. 203 — biographical anec-
dotes related by, 232 — character
of Lord Tenterden by, 339.
BROWN, Dr., of Norwich, an expert
in demonology, evidence by, i. 565.
BROWN, Sir Anthony, Chief Justice
of Common Pleas, degraded to be a
puisne by Queen Elizabeth, i. 184.
BROWNE, Justice, refuses to act as
Judge after execution of Charles
I., i. 470.
BROWN'S Chancery Reports, tempore
Lord Kenyon, iii. 33.
BRUS or BRUCE, R., first Chief
Justice of the King's Bench, i.
64 — pedigree, 65 — education, a
puisne Judge, 66 — loses office,
returns to Scotland, 67 — claims
the crown, 68 — decision against
him by Edward I., death, de-
scendants, 69.
BRYDGES, Sir Egerton, anecdotes
narrated by, of Lord Tenterden,
iii. 251, 255, 266— letters to,
from Lord Tenterden, 267-269,
284, 286, 290, 295, 333, 334.
BUCKINGHAM, Duke of (Stafford),
trial and execution of, for alleged
treason, i. 161.
BUCKINGHAM, Duke of (Villiers), job
attempted by, prevented by Lord
Coke, i. 286— attends the King
to Scotland, 296 — reconciled to
the Puritans, 320 — impeaches the
Earl of Middlesex, 321— advice
of, to the King respecting the
Petition of Right, 330 — denounced
by Lord Coke, 331— causes the
dismissal of Lord Coke, 353 —
assassination of, 378.
BULLER, Sir Francis, introduces the
pupilising system for the Bar, ii.
328 — appointed a Justice of the
King's Bench in April, 1778, 395
— his devotion to performance of
judicial duties, 397 — panegyric by,
on Lord Mansfield, 394, 404— di-
rection by to the jury on the trial of
the Dean of St. Asaph for a libel,
540; iii. 25 — supposed reason
t fiat lie was not made Chief JUS-
BURROW.
tice, ii. 549; iii. 36 — becomes a
Judge of the Common Pleas,
ii. 550 — advises Lord Tenterden
to select the Bar instead of the
Church as a profession, iii. 261 —
thorough acquaintance of, with
every branch of his profession,
and able discharge of duties as a
Judge, ii. 550.
BUNYAN, John, long imprisonment
of, under an illegal conviction, i.
559-561.
BURDETT v. ABBOTT, decision of
Lord Ellenborough in, respecting
parliamentary privilege of com-
mitment for contempt, ii. 56, 166.
BURDETT, Sir Thomas, his trial and
barbarous execution for pretended
treason, i. 149.
BURGESS, Dr., Bishop of Salisbury,
tutor of Lord Tenterden at Ox-
ford, iii. 257, 266.
BURGOYNE, General, capitulation
of the English troops under, at
Saratoga, ii. 504.
BURKE, Right Honourable E., com-
plimentary remarks by, on the
legal career of Lord Mansfield, ii.
443 — speeches by, iii. 21 — con-
duct of, on the impeachment of
Warren Hastings, 114.
BURLEIGH, Lord, selects Coke to be
Solicitor-General on account of
his extraordinary learning and
ability, i. 246 — prosecuted in the
Ecclesiastical Court, for assisting
at the irregular marriage of Lord
Coke, 256.
BURNET, Bishop, life of Sir M. Hale,
by, i. 513, 516, 520, 523, 550—
extracts from his History of his
own Times, ii. 9, 33, 90, 135— a
witness for William Lord Russell,
45.
BURNING, the death appointed by
law for women attainted of trea-
son, i. 168.
BURROUGH, Mr. Justice, reasons for
his appointment as Judge in
Court of Common Pleas, iii. 286.
BURROW, Sir James, Master of the
King's Bench, Eloge by, on Chief
358
INDEX.
BURTOF.
Justice Lee, ii. 231 — panegyric
by, on Lord Mansfield, 434 — cere-
monious observances in the Court
of King's Bench, described by, 461.
BURTON, Diary of, quoted, i. 433 —
notice of Lord Mansfield, in cha-
racter of classical remains by, ii.
564.
BURY, Sir Thomas, Baron of the
Exchequer, decision by, in the
Aylesbury election case, ii. 160.
BURY ST. EDMUND'S, trial of witches
at, before Sir M. Hale, i. 561.
BUTE, Earl of, his connection with
Lord Mansfield, ii. 456 — advice to,
by Lord Mansfield, in framing the
preliminaries of peace, 458 — im-
prudent proceedings of, as prime
minister, 459 — rash conduct of,
respecting the cider-tax — resigns
office, 460.
BUTLER, Charles, reminiscences of
Lord Mansfield by, ii. 384.
C.
CABAL ministry, profligate measures
of the, ii. 32, 152.
CABINET, the, popular definition of,
iii. 187.
CADE, Eobert, the poet, Metrical
History of Chief Justice Staunton
by, i. 87.
C-®SAR, Sir Julius, Master of the
Rolls, a Commissioner of the Great
Seal in 1621, i. 360.
CALDECOT, Thomas, King's Coun-
sel, a great sessions lawyer, witty
repartee of Lord Ellenborough to,
iii. 238.
CALAMY, the famous Presbyterian
divine, his amusing interview with
Lord Holt, ii. 173.
CALVIN'S Case, decision in, that all
Scotchmen born since the Union
in 1602 should enjoy the same
privileges as native-born English-
men, ii. 192, 411 — judgment of
Lord Coke in, 412.
CAMDEN'S Britannia, encomium on
Lord Coke, contained in, i. 344.
CAMDEN, Lord, Chief Justice of Com-
mon Pleas, decision by, on the
CAMPBELL.
illegality of General Warrants, ii.
460 — speech by, on the Middle-
sex election, 486 — contest with
Lord Mansfield respecting the
decision of the Court of King's
Bench in Eex v.Woodfall, 487-489
— varied success as a debater in
the Houses of Lords and Commons,
563 — pusillanimousdisavowal by,
of his having concurred in the
Ministerial proposal of 1767 for
taxing America, 496. — See Lives
of the Chancellors, v. 229.
CAMPBELL v. HALL, rules respecting
our Colonial Law, explicitly laid
down in by Lord Mansfield, ii.
410.
CAMPBELL, Lord, caution of, against
the removal of the Courts of Law
from Westminster Hall, i. 15 —
opinion by, as Attorney-General
during the Canadian rebellion, that
an armed band of American in-
vaders should be treated as traitors,
197 — remarks by, on the Spanish
marriages and dethronement of
Louis Philippe, 302 — attends the
procession of Lord Tenterden on
taking his seat as a Peer in 1827,
354 ; iii. 315 — remarks by, on
the abuse of leading questions on
cross-examination of witnesses, ii.
50 — opinion of, on the commit-
tal of Chief Justice Pemberton,
57 — recollections of judges, coun-
sel, and public events by, 61, 120,
226, 281, 309, 329, 421, 445 ; iii.
31, 52 — alteration introduced by,
into Returns to Writs of Habeas
Corpus for the discharge of per-
sons committed for breach of par-
liamentary privilege, ii. 164 —
sources of interest to, as author of
a Memoir of Lord Mansfield, 303
— opinion of, respecting the pre-
vailing system of management
at the Inns of Court, 417 — ap-
proval by, of the fete cham-
petre at Ken Wood, 552— inti-
mation to, by Lord John Russell
that he would be appointed Chief
Justice of England, iii. 1 — suc-
cessful endeavours of, to provide
for the settlement of disputes by
INDEX.
350
CAMPBELL.
CARE.
arbitration, 35— Libel Act, passed
by, in 1845, permitting the truth
to be given in evidence, and re-
ferring to the Jury, whether publi-
cation was actuated by malice,
or for good of the community, 42
— belief of, as to Lord Kenyon's
conscientious discharge of his
judicial duties, 56 — first visit of,
to Westminster Hall in June,
1800, described, 58 — unsuccess-
ful attempt by, to exempt from
prosecution or action, a true ac-
count of speeches in parliament,
published bona fide for informa-
tion of the public, 64 — intimacy
of, with George, second Lord
Kenyon, 93 — Chancellor of the
Duchy of Lancaster and a cabinet
minister, 94 — feelings of, in com-
mencing a biography of Lord
E llenborough, ib. — recollection s
and remarks on the changes re-
specting bags used by the junior
members of the bar, 106 — recollec-
tions by, of the vengeful enthusi-
asm against Governor Wall, 149
— observations by, on the trial of
Despard for treason, 177 — serious
illness of, in 1816, and intimacy
with Lord Tenterden, 282 —
statement by, of the obsequious
deference paid to Lord Ellen-
borough at Serjeants' Inn, 232 —
recollections by, of Dick Danby,
249 — of Lunardi's balloon in
county of Fife, 258 — of Pro-
fessor Person, ii. 120; iii. 271
— of Mr. Topping, 272 — leader of
the Oxford Circuit for three years
without a silk gown, 275 — re-
marks by, on the changes notice-
able in Westminster Hall in 1850,
293 — censures by, on the decision
in Doe d. Barthwistle v. Vardill,
310 — recollections of the practice
on fresh appointments of King's
counsel, 319 — on the ascendency
of the Church since the abolition
of the Test and Corporation Acts,
320— placed at the head of the
Eeal Property Commission by
Lord Tenterden, 324—3 and 4
Wm. IV. c. 27, for abolishing
real actions and making a uniform
rule as to title to lands from en-
joyment, drawn by, 327 — 11 and
12 Vic. c. 58, passed by, to render
valid certain Quaker marriages, ii.
558 — Bill for establishing a Court
of Appeal on questions of Crimi-
nal Law, introduced by, in 1848,
i. 185 — opinion expressed by, that
it is unconstitutional for the Chief
Justice of England to be a Cabinet
Minister, ii. 451 ; iii. 185, 188.
CANADIAN Eebellion, opinion of
Lord Campbell, when Attorney-
General, that an armed band of
American Invaders should be con-
sidered as Traitors, i. 197.
CANNING, Elizabeth, the interesting
trial of for perjury before Chief
Justice Willes, ii. 277.
CANNING, Eight Hon. George, ap-
pointed Prime Minister, iii. 314 —
offer by, of the Peerage to Sir
Charles Abbott, 315— death of
318.
CANTERBURY Cathedral School,
founded by Henry VIIL, iii. 250
— cathedral, shrine of A'Becket
in, i. 21 — riches collected in, 31.
CAPEL, Lord, defence of, on his
trial before the High Court of
Justice, i. 484 — execution of as
a traitor, 485.
CAPEL, Sir Henry, speech by, in the
Convention Parliament as to the
exclusion of the Judges from the
Indemnity Act, ii. 114.
CARDIGAN, Earls of, their ancestry,
i. 69.
CARDS, playing, a tax imposed on,
in 1629, i. 413.
CARILEFO, W. de, Chief Jnsticiar, i.
13 — his pure and impartial ad-
ministration, sufferings, and death,
CARLISLE, Earl of, defence of the
fashionable world in the House of
Lords by, iii. 68.
CARLISLE, Bishop of (Law), memoir
of, iii. 94 — his parenthetical style
of English composition, 236.
CAROLUS, a piece of money circu-
lated under the Stuarts, ii. 26.
CARR, Sir John, foolish action at
law against respectable booksellers
360
INDEX.
CARTEKET.
for a burlesque critique on travels
written by, defeated, iii. 168.
CARTERET, Lord, an accomplished
yet nighty statesman without
steady ambition — dialogue be-
tween and Chief Justice Willes,
ii. 271.
CASTELL, Mrs., appeal of murder
prosecuted by, against Bambridge
and Corbett, wardens of the Fleet,
ii. 206, 216.
CASTLEMAINE, Earl of, trial and ac-
quittal of for alleged participation
in the Popish Plot, ii. 15.
CASTLEREAGH, Lord, anecdote of,
respecting the office of Chief Jus-
tice of Chester, iii. 221.
CATHOLIC Emancipation, corre-
spondence between the King and
Lord Kenyon respecting, iii. 86 —
speech of Lord Tenterden against,
320— of Earl Grey for, 322.
CATHOLICS, Eoman, Bill to mitigate
the penal laws affecting, ii. 11,
515, 516.
CATLYNE, Sir Robert, Chief Justice
of King's Bench, a dull but cau-
tious man, i. 34, 76 — remark by,
on the imprisonment of Henry V.,
128 — ancestry, 193 — grand en-
tertainment given by, at Middle
Temple, 194 — Justice of Common
Pleas, — Chief Justice of England,
on accession of Elizabeth, 195 —
conduct of on State trials, 196 —
death and burial, 199 — descend-
ants, 200.
CATO-STREET Conspiracy, charge to
the Grand Jury in reference to
by Lord Tenterden, iii. 306.
CATO, tragedy of, its early repre-
sentations— treated by the Whigs
and Tories as a political composi-
tion, ii. 168.
CAUSES tried before Chief Justiciars,
i. 6.
CAVALIERS, unextinguishable hatred
of, towards all implicated in the
death of Charles I., i. 494, 503 —
contrast between, and the Round-
heads, by Lord Hale, 540 — hatred
of, towards the Roundheads, 504 ;
ii. 1, 26 — the licentious mode of
living of, during the wars, i. 516 ;
ii. 6, 26.
CHANCERY.
CAVENDISH, Sir John de, Chief
Justice of King's Bench, killed in
Wat Tyler's rebellion, i. 94— his
descendants ennobled, 95.
CAVENDISH, Sir William, fidelity
of, to Wolsey — large grants of
abbey lands obtained by, i. 95.
CAVENDISH, Lord John, Chancellor
of the Exchequer — Receipt tax first
devised by, ii. 535 — motion by, to
place the Paymaster of the Forces
and other public accountants on
fixed salaries, iii. 18.
CELLIER, Mrs., trial and acquittal
of, before Scroggs, for supposed
complicity in the Popish Plot,
ii. 15.
CHAMBERLAIN letters, respecting the
harsh treatment of Sir E. Coke,
temp. Jas. I., i. 292, 297.
CHAMBERS v. SIR E. BRUNFIELD,
respecting the legality of ship
money, judgment in, i. 405.
CHAMBERS, Richard, a merchant of
London, prosecution of, and heavy
fine imposed upon, in the Star
Chamber, i. 392.
CHAMBRE, Sir Alan, Justice of the
Common Pleas, resignation of
office by, iii. 283.
CHANCELLORS, Lives of the, by Lord
Campbell, references to, i. 1 n.
— Roger, Bishop of Salisbury, 16
— Wm. Longchamp, 37 — Hubert,
40 — John Maunsel, 55 — Simon
de Montfort, 61 — Le Scrope, 86
— Parnyng, 88 — Knyvet, 94 —
Wolsey, 160 — Bromley, 206 —
Sir C. Hatton, ib. — Lord Elles-
mere, 282— Lord Bacon, 295, 311
— Lord Coventry, 393 — Bishop
Williams,404— Lord Shaftesbury,
ii. 44 — Jeffreys, 76 — Lord Cow-
per, 166— Lord Macclesfield, 180
—Lord Hardwicke, 213 — Lord
Northington, 275 — Lord Camden,
460 — Lord Loughborough, 557 —
Lord Ersldne, iii. 135 — Lord
Eldon, 217.
CHANCELLOR, Lord, costume of the,
in early times, iii. 91.
CHANCERY, Inns of, deserted by
students at law and tenanted by
attorneys, i. 515 — Court of, for-
merly held in Westminster Hall,
INDEX.
361
CHARLES I.
ii. 99 — evening sittings formerly
held in the Court of, 262.
CHARLES I., arbitrary measures of,
i. 239, 324, 330, 384, 400— assent
by, to the bill for the attainder
of Lord Strafford, 461— trial of,
480 — noble demeanour of, 482 —
place of the execution of, 484
— his line of defence recom-
mended by Sir Matthew Hale,
523 — prerogative of cashiering
Judges unscrupulously exercised
by, i. 292, 374, 406 ; ii. 30.
CHARLES II., birth of, i. 453 —
Chief Justices of King's Bench
appointed by, ii. 4 — Judges su-
perseded by, for expressing con-
stitutional opinions, 16, 25 — an-
xiety of, for the conviction of Lord
Grey de Werke, 40 — attempt of
to exercise the dispensing power,
52 — Reports of decisions com-
piled during the reign of, 62
— Courts of Justice turned into
instruments of tyranny during the
reign of, 63 — victory of over the
Whigs, 65 — the memorable Quo
Warranto case against the City
of London undertaken by desire
of, 66— the appointment of Jeffreys
to the office of Chief Justice of
the King's Bench repugnant to
the wishes of, 75 — Lord Chan-
cellor during .the exile of, 80 —
treatment by at restoration to the
remains of Blake and Cromwell,
115 — grants, by way of annuity,
made by, out of the hereditary
revenues of the Crown as a com-
pensation to those who had been
defrauded by closing of the Ex-
chequer, 152 — obscene publica-
tions during the reign of, 199 —
memorable declaration of, from
Breda, i. 494, 537, 546, 568.
CHARLETON, Sir R. de, Chief Justice
of Common Pleas, death of, i.
114.
CHARLTON, Sir Job, Justice of Com-
mon Pleas, dismissed for refusing
to support the King's dispensing
power, ii. 86.
CHARNOCK and others, trial and con-
viction of, before Lord Holt for
CHRISTIAN.
treasonably engaging in the at-
tempt against the life of Wil-
liam III., ii. 144.
CHARTER of the Forest, 1224, a rea-
sonable concession to nobility and
people, annulled, i. 50.
CHATHAM, Earl of, ii. 273, 274, 353
— Militia Bill introduced by, 256
— his first ministry, 449, 455 —
his contests with Lord Mans-
field, 357, 375, 383 — second mi-
nistry of, 468 — attack on Lord
Mansfield, 471 — suggestion for
an action against House of Com-
mons for the treatment of Wilkes,
474, 486— death of, 505— funeral,
508.
CHAUNCY, Sir H., History of Hert-
fordshire by, ii. 48.
CHEERING, early parliamentary mode
of, i. 83, 350.
CHESTER, Bishop of (Wilkins), his
friendship with Lord Hale, i. 568
— endeavours by to procure the
" Comprehension Bill," 569.
CHESTER, Chief Justices of : Jeffreys,
Herbert, ii. 82 ; Garrow, Copley,
268 ; Kenyon, iii. 11 — facetious
remark by Lord Castlereagh re-
specting the office of, 221 — usually
held by the Attorney-General, ii.
268.
CHESTERFIELD, Lord, anecdote of,
related by Lord Stanhope, iii. 206.
CHEYNE, Sir W., Chief Justice of
King's Bench, a very obscure
man, i. 140.
CHIFFINCH, superintendent of in-
trigues of every description at
Whitehall, ii. 7 — intrigues of, in
favour of the Duke of Mon-
mouth, 8.
CHIPPENHAM Election Petition, ad-
verse decision respecting caused
the resignation of Sir 11. Walpole,
ii. 265.
CHOLMLEY, Sir Roger, Chief Justice
of King's Bench, a Judge of no
eminence, i. 178.
CHRISTIAN, Mr. Chief Justice of the
Isle of Ely, decision of rejected by
Lord Ellenborough, iii. 239.
CHRISTIAN, Rev. H., of Docking,
362
INDEX.
CHRIST-CHURCH.
Norfolk, first tutor of Lord Ellen-
borough, iii. 96.
CHRIST-CHURCH College, Oxford,
portrait of Lord Mansfield, by
Martin, preserved at, ii. 583.
CHURCH of England, tolerance and
excellence of its forms of govern-
ment, ii. 235 — practice of allow-
ing interments in churches be-
longing to, censured by Lord
Hale, i. 578 — church-ales, ordin-
ance against, by Chief Justice
Richardson, 396 — sacraments of,
required to be taken by electors
and representatives, ii. 156 — by
King's Counsel, iii. 339.
CHURCHILL, Sir John, Attorney-Ge-
neral to the Duke of York, pro-
moted to be Master of the Rolls,
ii. 82.
CIBBER v. SLOPES, infamous action
of, for Grim. Con. tried in 1738,
ii. 341.
CICERO, the philosophic works of, if
attentively studied, useful in de-
termining the construction and
just fulfilment of contracts, ii.
246, 324, 409 — treatise of, de
Senectute, much studied by Lord
Mansfield in his retirement, 552.
CIDER - CELLAR in Maiden Lane,
social scenes at, described, ii. 120 ;
iii. 271.
CIDER-TAX imprudently introduced
by Lord Bute in 1763, ii. 460.
CIRCUITS, anecdotes of, iii. 106 —
Oxford, i. 479 ; ii. 92, 444 ; iii.
272 — the nervous barrister of,
ii. 281 — serious accidents on, 287 ;
iii. 273— Western, i. 397, 555 ;
ii. 549— Norfolk, ii. 96— North-
ern, ii. 122 — former limits of, i.
84; iii. 105; Midland, i. 190—
causing the lightest amount of
labour, preferred by the senior
Judges, iii. 333 — expenses of
Judges on, 336 — mode of travel-
ling on, before railways, i. 396 ;
ii. 123; iii. 8, 281.
CLANRICARDE, Marquess of, family
of, settled in Ireland at a remote
period, i 46.
CLARENCE, Duke of, brother of
CLEVELAND.
Edward IV., trial of, i. 153-
story of his being drowned in a
butt of wine, disproved, 153.
CLARENDON, Earl of, Lord Chan-
cellor, History of the Rebellion
by, quotations from, i. 363, 367,
482— address by, to Chief Justice
Hyde, 501— to Chief Justice Key-
linge, 506 — promises by, to the
Presbyterian party, 537-45 — con-
gratulatory speech by, to Sir M.
Hale, 546. — See Lives of the Chan-
cellors, iii. 110.
CLARENDON, second Earl of, Ex-
tracts from the Journals of, re-
lating to Sir M. Hale, ii. 175.
CLARET, verses on the first taxa-
tion of, in Scotland, by John
Home, ii. 575.
CLARGES, Sir Thomas, appeal by,
against the exclusion of Chief
Justice Wright from the In-
demnity Act, ii. 114.
CLARKE, conduct of James II. in
respect of the dispensing power
justified by, ii. 82.
CLARKE, Sir Thomas, Master of the
Rolls, educated at Lichfield School
under Mr. Hunter, with many
distinguished men, ii. 279, 308.
CLASSICAL Literature despised by
Lord Coke, i. 337— disregarded
by Lord Holt, ii. 170 — a recrea-
tion to Lord Mansfield, 552 —
cultivated by Lord Tenterden, ne-
glected by Lord Eldon, unknown
to Lord Kenyon, iii. 343.
CLEMENT'S INN, chambers in, occu-
pied by attorneys, ii. 60.
CLENCH, Dr., trial of Harrison for
the murder of, before Lord Holt,
ii. 140.
CLERGY of the Church of England,
disqualification of, to sit in the
House of Commons established,
iii. 148.
CLERGY, benefit of, proceedings in
Court when privilege claimed, re-
ported by Sir James Dyer, i. 186.
CLEVELAND, Duchess of, marriage
of, with the famous Beau Field-
ing, pronounced invalid, ii. 191.
INDEX.
363
CLEVES.
CLEVES, Anne of, divorce of, decreed
on the alleged invalidity of the
marriage of, i. 173.
CLERK (Chief) of the King's Bench,
appointment of, attempted by the
Duke of Buckingham, i. 286—
large salary attached to the office
of, commuted for the life of the first
Earl of Ellenborough, iii. 246.
CLIFFORD, Mr., application by, for a
Writ of Habeas Corpus on behalf
of Benjamin Flower, iii. 60 — alter-
cation of, with Lord Kenyon, in
reference to this application, 61.
CLIVE, Mrs. Kitty, the celebrated
actress, performances of, at the
theatre in Lincoln's Inn Fields, ii.
334.
CLIVE, Sir Edward, Justice of the
Common Pleas, Judgment of, in
Buxton v. Mingay respecting me-
dical men, ii. 276.
CLOPTON, Sir Walter, Chief Justice
of the King's Bench, tempore
Kichard II., i. 123.
COALITION Ministry recommended by
Lord Mansfield in 1778, ii. 509 —
formed in 1783, 534; iii. 18, 21;
dismissed, 22.
COCHRANE, Lord, trial and convic-
tion of, in 1814, for an alleged
conspiracy to defraud, iii. 218 —
re-election of, for Westminster,
219 — restored since to his rank
in the navy, 220.
COBBETT, William, observations of,
on the business of " an attorney,"
iii. 3.
COCKELL, Serjeant, fame of, on the
Northern Circuit, iii. 141.
COCK-FIGHTING, a barbarous diver-
sion, to be treated as illegal in a
court of justice, iii. 165.
CODRINGTON, Mr., alicentious young
man, memorable action by, in a
wager of " two heirs running their
fathers," ii. 420.
COLBATCH, Dr., author of ' Jus Aca-
demicum,' attachment granted
against, by the Court of King's
Bench, ii. 184.
COKE, Sir Edward, — general merits
COKE.
of, i. 207, 239— parentage, 240
— education, 241 — course of le-
gal studies, 242 — aversion of, to
Poetry and the Drama, 243 — first
brief, 244 — counsel in Shelley's
case, 245 — marriage, made So-
licitor - General, 246 — elected
Speaker of the House of Com-
mons, 247 — made Attorney-Ge-
neral, 251 — his brutal conduct on
the trial of Lord Essex, 252 —
death of his first wife, 253—
breaks a Canon of the Church
to obtain a second wife, 256 — in-
sulting language to Sir Walter
Raleigh, 257 — conducts prosecu-
tion of Guy Fawkes, 261 — made
Chief Justice of Common Pleas,
266 — meritorious conduct as a
Judge, 268 — judgment in the case
of the Postnati, 269 — opposes
Court of High Commission, 270 —
resists the claim of the King to
sit and try causes, 271 — denies
the power of the King to alter the
law by proclamation, 273 — made
Chief Justice of England, 276 —
gives a qualified support to " Be-
nevolences," 277 — laudable con-
duct in Peacham's case, 278 —
exertions against the murderers of
Sir Thomas Overbury, 279 — in-
curs the King's displeasure for his
firm conduct respecting Com-
mendams, 282 — frivolous charges
against, 287 — suspended from
his office, 288 — proceedings
against, for alleged errors in his
reports, 289 — conduct when dis-
missed, 293 — and after his re-
moval, 295 — strange proceedings
respecting the marriage of his
daughter with Sir John Villiers,
297 — restored to the Privy Coun-
cil, and attends its judicial pro-
ceedings, 304 — elected to Parlia-
ment, 306 — treatment of a pre-
sentation copy of the Novum
Organum, 307 — finishes his Re-
ports and Commentaries on Little-
ton, 308 — exposes the abuses of
monopolies, 310 — his share in the
impeachment of Lord Bacon, 312
— becomes leader of the opposition,
and vindicates the privileges of
3G4
INDEX.
COKE.
Parliament, 316 — causes a pro-
testation to be entered on the
Journals, which is torn out by
the King, 317 — is committed to
strict custody in the Tower, 318 —
proceeds with his Commentary on
Littleton, 319 — avoids a banish-
ment to Ireland, 320 — conducts
the impeachment of Lord Middle-
sex, 321 — motion for inquiring
into the expenditure of the Crown,
322— appointed Sheriff of Bucks,
and serves the office with distinc-
tion, 324 — elected for Norfolk,
323 — defence of public liberty by,
325 — his patriotic regard for the
glory of England, 327 — brings
forward the Petition of Right,
328 — which receives the Royal
Assent, 331 — denounces the Duke
of Buckingham, 330 — retires from
public life, occupations, 333 — dis-
like to medicine, 334 — the sup-
posed adviser of Hampden, 335 —
death, contempt for literature,
337 — greatness as a lawyer, a
judge, a reporter — reports of, when
published, 339 — his habits and
manners, 344 — unjustly censured
by Hallam, 345.
COKE, Lady Frances, a rich and
pretty heiress, betrothal of, to Sir
John Villiers, by her father, i.
296 — carried away and concealed
by her mother, indignant at the
proceeding, 297 — rescued by Sir
Edward Coke, by means of an
armed band, 298 — letter of, to her
mother, 302 — marriage ceremony
performed in the presence of the
King and Queen, 303 — raised to
the Peerage, elopes with Sir R.
Howard, 304 — son of, disinherited
for illegitimacy, 304 — reconciled
to her father, 335.
COKE, Robert, bencher of Lincoln's
Inn, epitaph on, by his son, i.
241 n.
COKE, Roger, grandson of the Chief
Justice, author of ' Justice Vindi-
cated,' published in 1660, i. 347.
COLCHESTER, Lady, Monody by, on
death of Lord EllenborougK iii.
247.
COMMON.
COLCHESTER, Lord, rude retort of
Lord Kenyon to, before a Com-
mittee of the House of Commons,
iii. 89 — advice on legal studies,
given by, to Lord Tenterden in
1787, 269.
COLERIDGE, S. T., Table-talk of,
anecdotes of Lord Kenyon related
in, iii. 88.
COLLAR of SS appropriated to the
Chief Justices of England from
a remote period, i. Preface vi. 507 ;
iii. 104, 288 — the personal pro-
perty of each Chief Justice, and
often preserved as an heir-loom,
ii. 259 — error respecting, iii. 58.
COLLIER'S Ecclesiastical History
quoted, i. 314.
COLLINS, Arthur, English Peerage,
edited by, a book of authority, i.
84.
COLONIES, principles laid down by
Lord Mansfield for the proper ad-
ministration of the law in, ii. 410
— legal remedies by British sub-
jects against governors of for false
imprisonment and other violations
of law, 414; iii. 149 — course of
policy to be adopted towards re-
bellious, i. 197 ; ii. 496, 505.
COMBE, Mr., conversation of, with
Lord Mansfield, respecting the
first French Revolution, ii. 558.
COMMENTARY on Littleton, by Coke,
supposed to contain the whole
common law of England as then
existing, i. 340.
COMMENTARIES on the Laws of Eng-
land, by Sir William Blackstone,
references to, i. 134, 150, 513,
567 ; iii. 38.
COMMERCE, attempt to tax foreign
productions, without the autho-
rity of Parliament, in 1604, i. 234.
COMMERCIAL Law of England settled
by the decisions of Lord Mans-
field, ii. 303, 405, 408.
' COMMONER, the Great,' epithet ap-
plied to the first Earl of Chatham,
ii. 273.
COMMON Law, History of the, by Sir
Matthew Hale, i. 70, 79, 438, 444.
INDEX.
365
COMMON.
COMMON Pleas, Court of, its creation
by Edward I., i. 71 — monopoly
of practice enjoyed in, formerly by
the Serjeants, ii. 7 — easy duties of
the Judges in, i. 109, 174-218 ;
ii. 273, 276, 282, 292— Chief Jus-
tices of: De Weyland, i. 72 — De
Hengham, 76 — Howard, 84 — De
Staunton, 87— Belknappe, 98,
109— De Charlton, 114— Thyr-
ninge, 120— Markham, 132—
Baldwin, 174— Montagu, 175-176
— Brown, 184— Dyer, 178— An-
derson, 218 — Gawdy, 266— Coke,
267— Hobart, 276 — Kichardson,
391— Heath, 415— Bankes, 458—
Bridgman, 546— North, ii. 33—
Pemberton, 42 — Jones, 46 — Bed-
ingfield, 100— Wright, 101—
Pollexfen, ' 117 — Treby, 155 —
Reeves, 206— Willes, 239, 270—
Pratt, 288, 460— De Grey, 433—
Wilmot, 289 — Eyre, iii. 52 —
Lord Eldon, 67— Dallas, 112—
James Mansfield, 183 — Gibbs,
227, 237, 289— Best, 291, 294.
COMMONS, House of. See Parlia-
ment.
COMMONWEALTH period, the pru-
dence of leading men during, de-
serving of praise, i. 527.
COMPREHENSION Bill, prepared by
Sir M. Hale and the Bishop of
Chester, to satisfy the scruples of
the Non-conformists, i. 546, 568.
COMPTON, Sir Thomas, Judge of the
Admiralty Court in the reign of
James I., i. 272.
CONANT, Vice-Chancellor of Oxford,
letter from, to Sir Matthew Hale,
offering the representation of the
University, i. 535.
CONFOEMITY, Act against occasional,
passed, i. 547.
* CONSOLIDATION Rule,' an improve-
ment introduced by Lord Mans-
field in actions on Marine Policies,
ii. 406.
CONSULS of foreign States not en-
titled to the privileges of ambassa-
dors or public ministers, iii. 165.
* CONTINGENT Remainders,' famous
Essay on, by Mr. Fearne, ii. 4, 34.
CORONER.
CONTRACTORS with the Government,
debate respecting their right to
sit in the House of Commons,
ii. 533.
CORBETT, Deputy- Warden of the
Fleet, trial and acquittal of, for
the murder of Robert Castell, ii.
206, 216.
CONTEMPTS, power of Superior
Courts to punish for, in a sum-
mary way, ii. 297.
CONVENTION Parliament, a meeting
of the States of the Realm, not
summoned by regal authority, i.
119.
CONY, George, merchant of London,
committed to prison for refusing
to pay duties imposed by Crom-
well, without sanction of Parlia-
ment, i. 432.
COOKE, Sir Thomas, trial and ac-
quittal of, for treason, before
Chief Justice Markham, i. 143,
148.
COOKE, Mr. Secretary, speech of,
on the Petition of Right, i. 328.
COPLEY, J., R.A., portrait by, of
Lord Mansfield, painted a few
weeks before his death, ii. 583.
COPLEY, Sir John. See Lyndhurst.
CORN-LAWS, remarks on the, by
Sydney Smith, iii. 80 — repeal of,
urged by Lord Coke, ii. 313.
CORNISH, Alderman, inhumanly
hanged and beheaded in Cheap-
side, by order of Jeffreys, ii. 77 —
unblushing violation of the rules
framed for the protection of inno-
cence, by the Judge, on trial of,
86, 142.
CORNWALL, Duchy of, cause of its
revenues being granted to the
Prince of Wales, iii. 146.
CORNWALLIS, Earl of, surrender of
the British Army under, to Wash-
ington, ii. 533 — Commander-in-
Chief during the Irish Rebellion
of 1798, iii. 194.
CORONATION Oath, the, interroga-
tories of George III. to Lord
Kenyon respecting, iii. 87.
CORONER, Chief, of England, office
366
INDEX.
CORPORATION.
held by Chief Justice of England,
i. 3 — duties belonging to, 417.
CORPORATION and Test Acts, debate
on the repeal of, iii. 318.
COTTU, M., the French advocate,
remark by, on the ease and plea-
sure with which Mr. Justice
Bayley discharged his duties at
Nisi Prius, ii. 397.
COULSON v. COULSON, solemn deci-
sion in, supporting the rule in
Shelley's case, ii. 432.
COUNSEL, full defence by, formerly
refused on trials for high treason
and in criminal cases, i. 430,
495 ; ii. 125, 206 — permitted by
statute of William III., iii. 13 —
when assigned by the Judge to
defend a prisoner compellable to
act, ii. 7 — duties of, towards
their clients, explained by Lord
Holt, 145 — practice for all the,
to address the jury altered by
Lord Mansfield, 401 — required for-
merly to take the Sacrament on
obtaining a silk gown, iii. 319 —
regulations about bags and gowns
of, 106.
COURIER Newspaper, conviction of
its editor for a libel on the Em-
peror of Russia, iii. 56.
COURTS of Common Law, origin of,
i. 3.
COVENTRY, City of, election of Sir
Edward Coke by, as a representa-
tive in 1624, i. 320.
COVENTRY, Lord Keeper, i. 393,
400 — pony to Lord Coke when
called Serjeant, 267. — See Lives
of the Chancellors, ii. 510.
COWELL, his book publicly burnt by
order of the House of Commons,
i. 339 n.
COWPER, Lord, made Chancellor by
the favour of Duchess of Marl-
borough, ii. 166 — letter of, to
George I., on the state of the
Bench of Judges in 1714, 182—
compliments by, to Lord Mans-
field, 338.— See Lives of the Chan-
cellors, iv. 257.
COWPER, W., stanzas by, on the de-
struction of Lord Mansfield's li-
ORIM. CON.
brary, ii. 525 — statement of, that
all the manuscripts of Lord Mans-
field were burnt by the mob, 560 —
limited accomplishments of, 562.
COWPER'S Law Reports, one of the
best ever published in England,
ii. 405.
Cox, Chancery Reports by, in the
time of Lord Kenyon, iii. 33.
COXE, W., Archdeacon, character of
Lord Ellenborough when at Cam-
bridge, described by, iii. 97.
CRAFTSMAN, opposition journal,
editor of} prosecuted for the pub-
lication of a letter, purporting to
have been written at the Hague,
ii. 207, 541.
CRAIG, judicial work by, De
Feudis, much appreciated and
studied by Lord Mansfield, ii. 327.
CRANBURNE, trial of, before Lord
Holt for participation in the As-
sassination Plot, ii. 140.
CREEVEY, Thomas, M.P., doubtful
doctrine expounded on the me-
morable prosecution of, iii. 167.
CRESWELL, Justice, resigns his place
of Judge on the execution of
Charles I., i. 470.
CREWE, Sir R., noble independence
of character, i. 369 — parentage,
370 — skill of, in heraldry and ge-
nealogy, elected Speaker of the
House of Commons, 371 — retires
from Parliament — appointed Chief
Justice of the King's Bench, 372
— famous speech of, in the Oxford
Peerage case, 373 — displaced from
office by Charles I., 374 — consti-
tutional opinions expressed by,
to the Attorney-General, 375 —
letter of, to the Duke of Buck-
ingham, 376 — erects a mansion
at Crewe, mode of living in re^
tirement, 379 — panegyric upon,
by Hollis, in the Long Parlia-
ment, death of, 380 — descendants
ennobled, 381.
CRICKLADE, bill for disfranchising
the corrupt electors of, ii. 533.
CRIM. CON., actions, principle of as-
sessing damages in, discussed, ii.
425, 426 ; iii. 67, 159.
INDEX.
367
CRIMINAL.
CRIMINAL Procedure, ii. 206, 210—
improvements in, during the Com-
monwealth, 430— amendment of,
in 1848, 185.
CRIMINAL Trials, practice of ques-
tioning prisoners in, formerly al-
lowed, i. 223 — witnesses called on
for prisoners first allowed to be
examined on oath, ii. 141 — con-
duct of Judges on, previous to
the Kevolution, 142.
CLOCKS, not in general use before
the close of the 14th century, i.
76.
CROKE, Mr. Justice, chosen Speaker
of the House of Commons, i.
232 — reports of cases by, in the
reigns of Elizabeth, James, and
Charles, 267, 376, 387, 400— de-
clares against the legality of ship-
money in Hampden's case, 401.
CROMPTON, an accurate judicial
writer, book published by, tern-
pore Elizabeth, on the authority
and jurisdiction of the Courts of
Law, i. 128.
CROMWELL, Lord, leader of the
Puritans, proceedings of, against
the Vicar of Norlingham for scan-
dalum magnatum, i. 244.
CROMWELL, Oliver, maiden speech
by, i. 133 — Council of State and
Long Parliament dissolved by,
425, 487 — Free Parliament called
by, in 1654, 426— directs the
execution of a Portuguese noble-
man convicted of murder, 427 —
treatment of George Cony by, 432
— derisive treatment by, of Magna
Charta and the Commonwealth
Judges, 433 — Judges appointed
by, 439, 444, 468 — House of
Lords restored, and Peers created
by, 442, 478 — ascendency acquired
by, in the Government, 464, 466
— battles of Dunbar and Wor-
cester fought and gained by, 471
— wish of, to be proclaimed King,
473 — death of, 475 — Jamaica
conquered from Spain by, ii. 410.
CROMWELL, Richard, feeble exercise
of the government by, i. 475.
CROMWELL, Secretary, unjustifiable
proceedings against, for negociat-
DALRYMPLE.
ing the marriage of Henry VIII.
with Ann of Cleves, i. 173.
CROOK, John, a loyal Quaker, trial
and conviction of, before Chief
Justice Foster, for refusing to
take oath of allegiance to Charles
II., i. 497.
CROPLEY, Sir John, father-in-law of
Lord Holt, ii. 177.
CRUISE, on Dignities, account con-
tained in, of the Oxford Peerage
case, i. 374.
CRUSADE, the new, in 1188, en-
couraged by Richard I., i. 32.
CULLENDER, Rose, improper convic-
tion of, for witchcraft in 1665,
before Sir M. Hale, i. 563.
CULLODEN, events after the battle
of, ii. 251.
CUMBERLAND, Duke of (William),
Commander-in-Chief during the
rebellion of 1745, ii. 252— un-
popularity of, 248, 368— (Henry)
action against, for Grim. Con., 248,
425 — deficiency of, in the rudi-
ments of educational attainments,
426.
CUMBERLAND, Richard, description
by, of the interview between Vis-
count Sack vi lie and Lord Mans-
field at Stoneland, ii. 568.
CURIA REGIS, its origin, i. 2, 5, 15
—rolls of, 38.
CURRAN, Right Hon. J. P., anecdote
of, when Master of the Rolls in
Ireland, iii. 294.
CUTHILL, a bookseller, censurable
conviction of, iii. 55.
CZAR Peter, ambassador of, in Lon-
don, being arrested, statute of
Anne passed to soothe the feelings
of the European powers, iii. 165.
D.
DALLAS, Chief Justice of the Com-
mon Pleas, counsel for Warren
Hastings, iii. 112 — polished man-
ner of — address of, 131 — the cele-
brated epigram on Burke com-
posed by, 132.
DALRYMPLE'B Annals of Scotland,
extracts from, i. 22.
368
INDEX.
DAMAGE,
DAMAGE, consequential, doctrine of,
checked by Lord Kenyon, iii. 65.
DAMPIERRE, Justice, ability of as a
Judge, iii. 158, 236.
DANBY, Dick, hairdresser in the
Temple, memoir of, iii. 249.
DANGERFIELD, his infamous charac-
ter, ii. 15— committal of, by Chief
Justice Scroggs, 16.
DARNEL, Sir Thomas, resistance
of, to "the Loan" illegally im-
posed by Charles I., i. 381 — com-
mittal of, 382— refusal of the
Judges to release, 383 — indigna-
tion of both Houses of Parlia-
ment at the imprisonment of, 384
— splendid argument of Bramston
on behalf of, 399.
DAUNCEY, Mr., an eminent counsel,
leader on the Oxford Circuit, iii.
277.
DAVENPORT, Serjeant, application
of, to Lord Thurlow for the office
of Chief Justice of Chester re-
fused, iii. 10.
DAVISON, Secretary, scandalous
mockery exhibited by the prose-
cution of, for sending off the war-
rant for the execution of Mary
Queen of Scots, i. 206, 217.
DAVY, Serjeant, witty remark by,
on the inhabitants of the Western
Counties, i. 232.
DAYRELL of Littlecot, legend re-
specting, narrated by Aubrey and
Sir W. Scott, i. 227.
DE BERENGER, trial and conviction
of, in 1814, for causing a rise in
the Funds by spreading false in-
telligence, iii. 218.
DEBATING Societies at the Inns of
Court, early existence and advan-
tages of, ii. 329.
DEBT SING, EAJAH, alleged cruelties
of — evidence respecting, rejected
by the House of Lords, iii. 118 —
speeches relating to, 121.
DEBT, imprisonment for, abolition
of discussed, iii. 43 — Pasquinade
against law of, 49 — opposition of
Lord Ellenborough to every im-
provement in the law relating to,
235.
DEERING, Sir Edward, motion by,
DENISON.
to eradicate Bishops, Deans, Chap-
ters, and all officers and officials
belonging to them in 1641, i.
462.
DE BURGH, Hubert, birth, i. 46 —
character of, by Shakspeare, 47 —
present at Rumrymede, 48 — ap-
pointed Chief Justiciar, 49 —
created Earl of Kent, character
by Lingard and Hume, 49 — re-
moved from office, takes to sanc-
tuary, 50 — confined in the Tower,
51 — escapes, 52 — impeached, par-
doned, death, 53— panegyric on,
54.
DE GREY (Lord Walsingham), Chief
Justice of Common Pleas, decision
of, in Perrin v. Blake, ii. 433 —
elaborate argument by, when At-
torney-General, on the legality of
General Warrants, 461.
DE LA POLE, Michael, Chancellor
of England to Richard II., i. 97. —
See Lives of the Chancellors, i.
286.
D'EoN, Chevalier, lawsuit respect-
ing the sex of, ii. 422— death of,
424.
DE SPENCER, Hugh le, Chief Jus-
ticiar, i. 57— at the battle of
Lewes, 58 — killed at Evesham,
59.
DE THORNTON, Gilbert, Chief Jus-
tice of England, salary assigned
to, i. 78.
DE WEYLAND, Chief Justice, a
great lawyer, accused of corrup-
tion, absconds, captured, banished,
i. 77 — dies in exile, character of,
by 0. St. John, 78.
DELAMERE, Lord, trial of, for trea-
son, before Jeffreys, ii. 84 — ac-
quitted, 85.
DELAVAL, Sir F. Blake, charge
against, of conspiracy to seduce ti
young female, ii. 424.
DEMOSTHENES, Latin Essay, criti-
cising the speeches of, by Lord
Mansfield, ii. 322.
DENHAM, Sir John, lines on the
river Thames by, ii. 354.
DENISON, Sir Thomas, Justice of
King's Bench on the appointment
of Lord Mansfield, ii. 285 — a
INDEX.
369
DENMAN.
Judge of deep learning and inde-
pendence of mind, 395.
DENMAN, Lord, patient and fair con-
duct of, as a Judge, ii. 143 —
serious illness of, iii. 1 — first Chief
Justice of England who attended
the House of Lords without his
judicial robes, 176.
DENNY, Vicar of Norlingham, de-
fended by Coke, when prosecuted
by Lord Cromwell, i. 244.
DESBOEOUGH, Colonel, declaration by,
in favour of a Republic in 1652,
i. 474.
DESPABD, Colonel, trial, conviction,
and execution of, for treason, iii.
177.
DEVIZES, Richard of, extracts from
History by, i. 34.
DEVON, Prince's Worthies of, errors
in, i. 132, 139, 140.
DEVON, Sir Fred., Issue Rolls of
Exchequer, edited by, i. 109, 112,
113.
DIFFICILES NUGJE, treatise by Sir
M. Hale touching the Torricellian
experiment, i. 577.
DIGBY, Sir Everard, trial and con-
viction of, for participating in the
Gunpowder Plot, i. 264.
DIEECTORY of public worship, framed
to supersede the Liturgy in 1642,
. i. 436.
D'ISEAELI'S Life and Character of
James I., extracts from, respect-
ing Lord Coke, i. 293, 318.
DISSENTEES, remedies extended to,
by Lord Mansfield, ii. 511, 513.
DIVINES, famous assembly of, at
Westminster in 1644, who framed
the standards of Presbyterian faith,
i. 522.
DIVINE right of Kings, opinions on,
ii. 115.
DOE d. Barthwistle v. Yardill, deci-
sion of King's Bench and House
of Lords in, questioned and com-
plained of, iii. 310.
DOUGLAS Cause, the, memorable
speech of Lord Mansfield in fa-
vour of the claimant in, ii. 445.
VOL. III.
DYER.
DOVER Castle, defence of, against
the French in 1215, by Hubert
de Burgh, i. 48 — held by De
Montfort, Earl of Leicester, 60.
DRINKING customs at the period of
the Restoration, i. 516.
DUBLIN and the Irish, tempore
Geo. I., description of, by Chan-
cellor Bowes, ii. 235.
DUDLEY, Sir Robert, book composed
by, for bridling the impertinence
of Parliaments, i. 452.
DUFLEUR, conviction of, for pub-
lishing an alleged seditious libel,
iii. 49.
DUGDALE, Sir William, Origines
Juridicales by, i. 2, 60, 92 —
Baronage by, 13, 53 — supposed
motives of, for his erroneous state-
ment about Chief Justice Scroggs,
ii. 5.
DUNBAR, battle of, gained by Crom-
well, i. 471.
DUNNING, harsh condemnation by,
in the House of Commons, of the
decision of the Court of King's
Bench in Rex v. Almon, ii. 477,
484 — always in his element in a
debate in the House of Commons,
563 — vast business and wealth of,
461 ; iii. 9— Solicitor-General, ii.
484 ; iii. 10 — penury and genius
of, 7 — is created a Peer, 17 —
bombazeen gown worn by, when
a Nisi Prius leader, 269.
DUNY AMY, trial and execution of,
for witchcraft at Cambridge in
1665, i. 563.
DURHAM Cathedral, erected by
Bishop Carilefo, i. 14 — the Ga-
lilee in by Bishop Pusar, 36.
DYER, Sir Edward, the poet, Chan-
cellor of the Garter, i. 179.
DYER, Sir James, Chief Justice of
Common Pleas, i. 178 — parentage,
early genius for reporting, 179 —
Speaker of House of Commons,
181 — prosecutes Throckmorton,
182— made a Judge, 183— Chief
Justice of Common Pleas, 184—
his Reports valuable records of
English jurisprudence and man-
ners, 180, 185, 192— illustrations,
2B
370
INDEX.
ECCLESIASTICAL.
185, 189 — conduct as a Judge
assailed, 190— death, and epitaph,
191.
E.
ECCLESIASTICAL patronage, proper
exercise of, by Lord Coke, i. 343.
EDINBURGH, City of, bill to dis-
franchise, as a punishment for
the alleged misconduct of its in-
habitants in the murder of Cap-
tain Porteous, ii. 240 — speech by
Lord Mansfield against the bill,
338.
EDUCATION, system of, in Scotland
at the commencement of the 18th
century, ii. 309.
EDUCATION, legal, system of, pur-
sued in England, ii. 326 — attend-
ance in the Courts at Westminster
essential to, 339.
EDWARD I., the principality of
Wales brought into subjection
by, i. 30 — appointed arbitrator
between Bruce and Balliol, 68,
79 — decision of, in favour of Bal-
liol, 69, 81 — acts as peacemaker
between the Kings of France and
Aragon, 74 — the principles of
English jurisprudence systema-
tized by, 70 — Judges fined and
imprisoned by, for taking bribes,
75 — Justices appointed by, to
take assizes throughout the realm,
84 — Jews banished from England
by, ii. 27 — famous law treatise,
called Fleta, written in the reign
of, 29 — statute respecting right
of property in vessels wrecked,
passed in reign of, 417.
EDWARD II., accession of, i. 76, 83
— Judges appointed by, 85.
EDWARD III., authority of, esta-
blished, by deposing his mother
and her paramour, i. 86 — con-
fidence reposed by, in Thorpe,
Chief Justice, 89 — famous statute
of Treasons passed in 25th year
of, 91 — prosecutions under it, 92,
147, 175; ii. 246; iii. 16—
Duchy of Cornwall granted by,
to his son, to relieve himself and
future Monarchs from maintain-
ELDON.
ing the heir apparent at their ex-
pense, iii. 146.
EDWARD IV., indefeasible heredi-
tary right of to the Crown argued,
i. 142, 146 — Lancastrians exe-
cuted by order of, 147-149—
driven into exile, 151 — lands at
Eavenspurg, gains a victory at
Barnet, and the Throne, 152
— accusation of High Treason
brought by against the Duke of
Clarence, 153-155 — death of, from
licentious indulgences, 156.
EDWARD VI., large grants of abbey
lands in Derbyshire by, to the
Cavendish family, i. 95— will of,
in favour of Lady Jane Grey,
prepared by Chief Justice Mon-
tagu, 177.
ELEANOR, QUEEN, extensive con-
tinental dominions of, enjoyed in
her own right from Picardy to
Navarre, i. 17 — imprisonment of,
in Winchester Castle, by order of
the King, 23 — evidence by, in the
Fauconbridge Legitimacy case,43.
ELECTION Petitions, mode of decid-
ing the merits of, before the Gren-
ville Act, ii. 265.
ELDON, Earl of, cause of the hos-
tility entertained by, to Lord
Mansfield, ii. 394 — failure of, as a
debater in the House of Lords,
563 — honourable conduct of, in
the Westminster Scrutiny debate,
iii. 28 — character as an Equity
Judge, 35 — remarks by, when
Chief Justice of the Common
Pleas, on the duties of juries in
awarding damages in actions for
Crim. Con., 67 — speech of, on the
incongruous position of a Chief
Justice being a Cabinet Minister,
187— letter from to Lord Ellen-
borough relative to an interview
at Windsor with George III. and
his physicians during the King's
illness in 1811, 213 — position of,
with the Prince Regent, before
and after the hopeless recovery of
the King, 217— refusal by, to
grant an injunction against piracy
of a poem by Lord Byron, on the
ground of its being atheistical,
INDEX.
371
ELGIN.
302 — inexplicable conduct of, in
withholding a Peerage from Sir
Charles Abbott, 313— antipathy
of Canning and Scarlett to, 315 —
opposition by, to reforms in the
Law, 324.— See Lives of the Chan-
cellors, vii. 1.
ELGIN, Earls of, descent of, from
Robert de Brus, Chief Justice of
King's Bench, i. 69.
ELIOT, Gilbert, Lord President of
the Court of Session, verses by, to
Lord Mansfield, ii. 339.
ELIOT, Sir John, prosecution of, in
the Star Chamber for speeches
made in the House of Commons,
i. 385, 412.
ELLENBOKOUGH, Lord, parentage,
iii. 94 — birth, 95 — education at
Charter House, at Cambridge,
with Gibbs, Le Blanc, and Law-
rence, 96 — character of, by Arch-
deacon Coxe, 97 — studies the law,
99 — diligence as a special pleader,
100 — successful practice under
the bar, 102 — called to the bar,
and joins the Northern Circuit,
104 — slow progress in London,
106 — courtship and marriage, 108
— leading counsel for Warren
Hastings, 109 — first speech on
the trial, 112 — contests with
Burke and the other managers on
questions of evidence, 114 — argu-
ment in Debi Sing's case, 118 —
fear of Sheridan, 122 — opening
speech for the defence, 123 — proce-
miumand peroration to the Begum
charge, 125 — termination of the
trial after 145 days' hearing, 131
— increased amount of business,
132 — resentment of Lord Ken-
yon's ill-usage, 133 — opposed to
Erskine in Rex v. Walker, 134—
conducts prosecution against Red-
head Yorke, 136 — triumph over
Sheridan, in the trial for aiding
the escape of O'Connor, 140 — re-
conciliation with the Tories, 141
— made Attorney-General, 143 —
knighted, and enters Parliament,
144 — speech against the right of
a priest in orders to sit in Par-
liament, 145 — speech on the
ELLENBOROUGH.
claim of the Prince of Wales
to the revenues of the Duchy
of Cornwall, 146 — speech on the
prosecution of Governor Wall,
147— made Chief Justice of Eng-
land, and created a Peer, 153
— qualifications as a Judge, 154
— conduct as Chief Justice, 155
— legal decisions of, in various
causes, 157-171 — speeches in the
House of Lords, 172 — exposure
of the Athol job by, 173 — main-
tains the right of the Crown to
the military services of all sub-
jects, 175 — opposes the removal
of the Roman Catholic Disabilities,
176-194 — presides with applause
at the trial of Colonel Despard
and others for high treason, 177
— at the trial of Peltier for a libel
on Napoleon, 180 — withdraws
from political warfare, on the re-
turn of Mr. Pitt to power, 182 —
on the death of Mr. Pitt becomes
a member of the Cabinet, 183 —
motives for consenting, 183 — de-
bates in both Houses respecting
the incongruity of the positions
of Chief Justice and a Cabinet
Minister, 185-8 — correspondence
of, with Mr. Perceval, 189-91—
votes for the impeachment of
Lord Melville, 192— letter to, from
Lord Grenville, 194 — speech on
the restoration of the Danish Fleet,
195 — conduct as Judge on the
trial of Mr. Perry, 196-201—
on the trial of Leigh Hunt for a
libel in the ' Examiner,' 201 —
speech in reply to the motion of
Lord Holland, in reference to in-
formations, ex-officio, for libel,
203 — speech respecting the Deli-
cate Investigation, 205-211 — sup-
port of, to the severe Alien Bill of
1816, 212 — opposes Lord Grey's
motion for censuring Lord Sid-
mouth, 213 — a member of the
Queen's Council as custodian of
the King's person during the Re-
gency, 214— interesting letter of
Lord Eldon to, respecting the con-
dition of the King, 215 — conduct
of, on the trial of Lord Cochrane
and others, 218 — on the trial of
372
INDEX.
ELLESMERE.
Dr. Watson for treason, 220 —
prayer composed by, 223 — con-
duct on the trial of Hone for pub-
lishing a profane libel, 224 — se-
vere illness of, 225 — resignation
of office by, 228 — letter of con-
dolence to, from George IV. ,229 —
death of, 230— epitaph on, 231—
character of, 232 — a severe penal
code approved of by, 233 — aver-
sion of, to the illusory opinions
of speculatists, 234 — opposed to
any alteration of the law of Debtor
and Creditor, 235— dislike of, to
foreign laws, 236 — anecdotes and
witticisms of, 237-41 — dialogue
of, with Henry Hunt, 240 — in
domestic life, 242 — figure and
manner of, 243 — imitations of,
by Mathews the comedian, 244 —
portrait of, by Lawrence, 245 —
mode of living, descendants, 246
— Monody on the death of, by
Lady Colchester, 247.
ELLESMERE, Lord Chancellor, re-
mark by, on the banishment of
Chief Justice Belknappe, i. 114 n.
— appointed Solicitor - General,
214 — a man of great learning
and of unexceptionable character,
218 — Attorney-General, 247 —
Master of the Eolls, 250— dispute
of, when Lord Chancellor, with
Chief Justice Coke, respecting an
injunction, 282 — inaugural ad-
dress by, to Chief Justice Mon-
tagu, 354. — See Lives of the Chan-
cellors, ii. 179.
ELPHIN, Bishop of, letters to, from
Lord Ellenborough, iii. 184, 186
— representations of, to Lord
Ellenborough, respecting the Irish
Eoman Catholics, 194.
ELYOT, Sir Thomas, celebrated phi-
lologist, extracts from book by,
called 'The Governor,' i. 127,
193.
ENGLAND, Chief Justice of, office
introduced into England by Wil-
liam the Conqueror from Nor-
mandy, i. 1 — performs the formal
duties of Chancellor of the Ex-
chequer upon sudden death or
resignation of that minister", 3;
ERSKIXE.
ii. 229 — denominated Chief Jus-
tice of, assigned to hold pleas in
the Court of our Lord the King
before the King himself because
the King is supposed to person-
ally preside, assisted by the first
Common-Law Judge, i. 71, 271 —
sent to quell rebellions armed
with a commission of array, 124,
219 — salary of, in the reign of
James I. 286 — title reassumed by
Lord Coke, 277, 354— is sworn in
privately before the Lord Chan-
cellor, and without speechifying
takes his seat on the bench with
the other Judges, 400; ii. 393—
is chief coroner of England by
virtue of his office, having autho-
rity to pronounce judgment of
attainder on view of the bodies
of rebels slain in battle, subject-
ing their lands and goods to for-
feiture, i. 406, 417— collar of SS
worn by, Pref. vi., 507 — the per-
sonal property of, ii. 259 — acted
formerly as a police magistrate,
175— first time ennobled, 197,
211 — advantages likely to result
when the peerage is conferred on,
iii. 173 — incongruous and uncon-
stitutional position of, when a
Cabinet Minister, 185, 188; ii.
451.
ENGLISH Language, all legal pro-
ceedings directed to be carried on
in, by statute of George II., ii. 210.
ERSKINE, Lord, rapid progress at
the bar of, i. 243 — speech by, on
the privileges of Judges, ii. 57
— letter of condolence to Lord
Mansfield, 550 — failure of, as
a Parliamentary speaker, 563 —
remark on the eloquence of, in
Courts of Law, by Lord Mans-
field, 577 — imitations of Lord
Mansfield by, 583 — memorable
struggle with Justice Buller on
trial of Dean of St. Asaph, ii. 540 ;
iii. 25 — celebrated speech by, on
the trial of Lord George Gordon,
531; iii. 16 — on trial of John Frost,
52 — on trial of Gilbert Wakefield,
54 — on a criminal information for
a jeu d'esprit on the Earl of Lons-
INDEX.
373
ESPINASSE.
dale, 74 — in defence of Mr.
Walker, 134— in the House of
Lords against the Alien Bill,
213 — epigram on Justice Grose
by, 58 — personal appearance of,
described, 58 — remarks as to the
qualifications of, for the office of
Chancellor by Lord Ellenborough,
184, 242 — letter of, to Lord Ellen-
borough, narrating the debate on
the Chief Justice being a member
of the Cabinet, 187. — See Lives of
the Chancellors, vi. 367.
ESPINASSE, Mr., account by, of the
demeanour of Lord Kenyon, iii.
45 — historical notes of, 92.
ESSEX, County of, rebellious pro-
ceedings in the, during the reign
of Richard II., i. 96 — execution of
the instigators at Chelmsford, 97.
ESSEX, Earl of, mad proceedings of,
in planning an insurrection to get
possession of the Queen's person
and to rid her of evil counsellors,
i. 219 — vituperative and brutal
language of Coke and Bacon to-
wards, on the trial of, 220, 252.
ESSEX, Earl of, v. CAPEL, action at
law tried before Lord Ellen-
borough for trespass over lands
of plaintiff when fox-hunting, iii.
164.
EUSTACE, Count of Boulogne, the
strong castle of Eochester de-
fended by, against William Kufus,
i. 9 — forced to surrender owing
to a pestilential disease among the
garrison, 10.
EXERCISES for students at Lincoln's
Inn, ii. 237.
EVESHAM, victory at, royal autho-
rity restored by, i. 57.
EVIDENCE, rules as to the admission
and rejection of, established by
the decisions of Lord Mansfield,
ii. 429.
EXCEPTIONS, Bill of, its origin and
importance, ii. 396 — practice re-
specting, described, iii. 396.
EXCHEQUER, origin of the Court of,
i. 71— Chief Barons of the: De
Staunton, 87— Perryam, 233—
Fleming, 234 — Lane, 468 —
FAWKENEB.
Bridgman, 492— Macdonald, 508
—Hale, 545— Montagu, ii. 86—
Ward, 155 — Parker, 570 —
Smythe, 571— Gibbs, iii. 289—
Lord Abinger, 306.
EXCHEQUER Chamber, its origin and
uses, i. 70 — a Court of Appeal in
cases of Criminal Law from the
Assizes and Quarter Sessions, 185.
EXETER, Duke of, the rack first
introduced in the Tower by, in
the reign of Henry VI., i. 252, 262.
EXETER Change, murder committed
in, by a Portuguese nobleman, i.
427.
EYRE, Sir E., Justice of the King's
Bench, resigns office, ii. 196 — ap-
pointed Chief Justice of Common
Pleas — disapproval by, of the
Sacheverell impeachment when
Solicitor-General, 179.
EYRE, Sir James, Chief Justice of
the Common Pleas, quiet de-
meanour of, on the trial of Home
Tooke, iii. 52.
F.
FABRIGAS v. MOSTYN, important
judgment of Lord Mansfield in,
as to the right of British subjects
to compensation for acts of op-
pression by governors of colonies,
ii. 414.
FAIRFAX, General, refusal by, as a
Presbyterian, to command an
army of invasion into Scotland,
i. 471.
FALAISE, descendants of the cele-
brated Arlotta of, i. 4 — William,
King of Scotland, imprisoned in
. the castle of, 22.
FANATICS at Cambridge during the
Commonwealth, attempts by, to
destroy all books except the Old
and New Testament, i. 474.
FAUCONBRIDGE, evidence of Queen
Eleanor in the memorable legiti-
macy cause of, i. 42.
FAWKENER, Sir Edward, a witness
against Lord Lovat, facetious re-
mark to, by the prisoner, ii. 363.
374
INDEX.
FAWKES.
FOREST.
FAWKES, a foreigner, banished for
defending the Castle at Bedford
against the King, i. 49.
FAWKES, Guy, and others, tried and
convicted, before Chief Justice
Popham, for the Gunpowder Plot,
i. 225.
FAZAKEKLEY, Mr., an eminent coun-
sel, and influential Tory leader
in the House of Commons, ii.
541.
FEARNE, Mr., the celebrated Con-
veyancer, sarcastic observations
by, on the decision in Perrin v.
Blake, ii. 434 — angry pamphlet
by, to Lord Mansfield, 435.
FEMALE chastity, exposition of the
laws for the protection of, by Lord
Mansfield, ii. 424.
FEN WICK, Sir John, unjust attainder
and execution of, ii. 57.
FINCH, Heneage, Solicitor-General,
dismissed, for refusing to support
the King's dispensing power, ii.
87 — one of the counsel for the
Bishops, 48 — refused to accept
any fee, 53 — indiscreet statement
on the trial by, 106.
FINEUX, Sir J., Chief Justice of
King's Bench, i. 158 — tripartite
division of his career, 159 — ad-
vanced age, and death, 161.
FISHER, Bishop, trial and execution
of, for denying the supremacy of
Henry VIII., i. 166.
FITZ-HARRIS, trial and conviction
of, for participation in the Popish
Plot, ii. 35.
FITZ-JAMES, Sir John, parentage,
early intimacy with Wolsey, i.
160 — Chief Justice of King's
Bench, 161 — ungrateful behaviour
to Wolsey, 163 — atrocious con-
duct of, at the trial of Bishop
Fisher, 166 — Sir Thomas More
legally murdered by, 167 — execu-
tion of Anne Boleyn effected by,
168— death, 169.
FiTz-OsBORNE, William, Eegent of
England, i. 5 — Chief Justiciar,
11 — conduct at Hastings, created
Earl of Hereford and Lord of the
Isle of Wight, 12.
FiTZ-OsBERT, William, anecdote of,
i. 38— rebellion and death, 39.
FITZ-PETER, G., Earl of Essex,
Chief Justiciar, an able and va-
liant Baron, i. 40 — mode of liv-
ing, 41 — sudden death, character,
42 — judicial decision by, 43.
FIVE-MILE Act, passed in 1661, by
which the Presbyterians were en-
tirely expelled the House of Com-
mons, i. 547.
FLAMBARD, E., Chief Justiciar, holds
his Courts in Westminster Hall,
i. 15.
FLAXMAN, splendid monument by,
to the memory of Lord Mansfield,
ii. 561.
FLEET, the most populous civil
prison in England, ii. 28.
FLEMING, Sir Thomas, parentage, i.
230— made Solicitor-General, 231
— failure in the House of Com-
mons, 232 — made Chief Baron by
James I., 233 — decision by, in
the great case of Impositions, 234
—Chief Justice of England, 236
— gives judgment in the case of
the Postnati — death, 237 — de-
scendants, 238.
FLETA, famous treatise, so called,
written by a lawyer when a pri-
soner in the Fleet, during the
reign of Edward I., ii. 29.
FLOWER, Benjamin, imprisonment
of, for a libel on Bishop of Llan-
daff, iii. 60.
FLOYDE, Edward, impeachment of,
and frightful sentence inflicted on,
for words alleged to have been
maliciously spoken, i. 366, 390 —
differences between the Houses
of Parliament as to the right to
punish, 389.
FOLEY, Lord, generous friendship
entertained by, towards Lord
Mansfield, ii. 320, 378.
FOREIGNERS, jealousy of, in Eng-
land, i. 44 — banishment of those
holding office, 46 — petition of
London merchants for the banish-
ment of, iii. 212.
FOREST, charter of, a reasonable con-
INDEX.
375
FOBESTALLERS.
cession to the nobility and the
people improperly annulled, i. 50.
FOBESTALLERS and Eegraters, pro-
secution of, scouted by Lord
Holt, ii. 139— fury of Lord Ken-
yon against persons charged as,
iii. 77.
FOBMS in legal proceedings, im-
portant changes in, by Lord
Mansfield, ii. 401 — observance of,
necessary for pure administration
of Justice, iii. 291.
FOBTESCUE, Sir John, Chief Justice
of King's Bench, immortal treatise
by, i. 141 — pamphlets written by,
142 — integrity and impartiality
of, 143 — terms of his pardon by
Edward IV., 153.
FOSTER, Sir Michael, Justice of
the King's Bench, a Judge of
deep learning, ii. 395 — opinion of,
on the duties of a good citizen, i.
524 — censures on the supersti-
tious cruelty of Lord Hale, 567.
FOSTER, Sir Kobert, made a Judge
of Common Pleas, by Charles I.,
i. 493 — reinstated by Charles II.,
494 — as Chief Justice of Eng-
land, brings about the execution
of Sir Harry Vane, 495 — treat-
ment of Quakers by, 497 — death,
499.
FOSTER, Sir Thomas, Judge of Com-
mon Pleas, under James I., i.
499.
Foss, Edward, barrister-at-law, ex-
tract from his work entitled Lives
of the Judges of England, i, 41.
FRANCE, characteristic differences
between the people of England
and of, in the management of
local matters, i. 2 — wars of the
English with, 48, 89, 92, 140 ;
iii. 175 — war between Aragon
and, i. 74.
FRANKLIN, Benjamin, insult to, by
Wedderburn, one of the causes of
the rupture between England and
America, ii. 495.
FBASEB, Mr. Farquhar, complete
collection of Lord Coke's works,
admirably edited by, i. 339.
FROST.
FREDERICK, Prince of Wales, debate
on the Eegency Bill at the death
of, ii. 247 — character and disposi-
tion of, 368.
FRENCH, the language of the higher
orders in Scotland in the 12th
century, i. 21-57 — use of, in law
proceedings, forbidden by the Long
Parliament, 339 — resumed at the
Restoration and continued until
the reign of George II., ii. 210.
FRIEND, Dr., volume of epitaphs by,
ii. 351 — verses on the work, by
A. Pope, 352.
FRIEND, Sir John, trial of, for trea-
sonably conspiring against the
life of William III., ii. 146— Lord
Holt's exposition of the law on
the trial of, defended, 145.
FOUNTAIN, Mr. Serjeant, intimacy
of, with Sir Matthew Hale and
Eichard Baxter, i. 567.
Fox, Eight Hon. C. J., epigram on
the Eeceipt Tax introduced by,
ii. 535 — debates respecting the
Libel Bill of, 544; iii. 40, 49,
86 — speeches by, when Secretary
of State, 19, 20, 21 — expense
incurred by, in the Westminster
Scrutiny, 27 — censure by, on
Lord Kenyon, when Master of the
Eolls, 28 — cause of the civility
always shown by, to Lord Eldon,
29 — action by, against the High
Bailiff of Westminster, 31— ver-
dict obtained by, against Home
Tooke, 69 — proposals by, on the
trial of Warren Hastings, over-
ruled by the Lords, 112 — con-
fidential note from, to Lord Ellen-
borough, in reference to political
events, 193 — becomes a member
of the Broad-bottom Administra-
tion, 183 — offer of the Great Seal
by, to Lord Ellenborough, 184.
FOXHUNTING, the diversion of, can-
not be legally pursued against the
consent of the occupiers of the
land, iii. 164.
FROISSABT'S Chronicle, extracts from,
i. 105, 106, 108.
FROST, John, discreditable prosecu-
tion and conviction of, before Lord
376
INDEX.
FULLER.
Kenyon, for alleged sedition, iii.
50.
FULLER'S Worthies, quotations re-
specting eminent judges from, i.
131, 140, 143, 145, 159, 169, 211,
344.
FULTHORPE, Sir William, a worthless
puisne Judge, sentences Scrope,
Archbishop of York, and Mow-
bray, Duke of Norfolk, to be be-
headed without form of trial, i.
125.
G.
GAME-LAWS, a judicial decision on
the construction of, ii. 515.
GAMING, furious crusade against, by
Lord Kenyon, iii. 68.
GAOLERS, liability of, to be con-
victed of murder for negligent
treatment of their prisoners, ii.
204-206.
GARDINER, Sir Thomas, appointed
Solicitor-General in 1645, not
under the Great Seal, i. 466.
GARNET, superior of the Jesuits,
trial and execution of, for com-
plicity in the Gunpowder Plot, i.
225, 264.
GARROW, Sir William, Attorney-
General and Chief Justice of
Chester, ii. 268 — personal ap-
pearance of, described, iii. 58 —
speeches of, at the bar, 73.
GARRICK, David, the popularity of
his acting, ii. 261, 263, 280—
farces by, 283— portrait of, be-
tween Tragedy and Comedy, 417.
GASCOIGNE, Sir W., origin and edu-
cation, i. 121 — success at the bar,
122 — appointed Chief Justice of
the King's Bench, 123— refusal of,
to try a prelate and a peer, 124 —
committal by, of the Prince of
Wales considered and proved as
an indisputable historical fact,
126, 131— merit of, in the trans-
action, 133 — law reforms by, 154
— acts as arbitrator in Lord Boss's
case, 135— death and will, 136 —
estates, epitaph, 137 — descend-
ants, 138.
GEORGE IT.
GASELEE, Sir Stephen, Justice of
the Common Pleas, an eminent
special pleader, anecdote respects
ing him and Lord Ellenborough,
iii. 239.
GAUNT, Elizabeth, memoir of, ii.
77, 86; 142.
GAUNT, John of, false accusation
against, i. 97 — leads an army
from Nottingham to London, 101
— a client of Chief Justice Gas-
coigne, 121 — his treatment of
Tresilian, Chief Justice, 107 —
death of, 122.
GAWDY, made Chief Justice of the
Common Pleas by consent of Sir
Edward Coke, the Attorney-
General, i. 266.
GEOFFREY, Bishop of Constance,
presides at the memorable trial
on Penenden Heath, i. 6 — result
of his decision, 12.
GEORGE I., state of the judicial
bench on the accession of, ii. 182,
193 — disputes between, and the
Prince of Wales, 187— favour of,
to Chief Justice Parker, 180 —
visits by, to Germany, 209 —
death of, at Osnaburgh, 203 —
verses of condolence respecting,
324 — inability of, to pronounce
English words, 325.
GEORGE II., dispute between, and
his father respecting the right to
regulate and control the educa-
tion and marriages of his grand-
children, ii. 187 — annoyance of,
at the attack on his foreign policy
in the Craftsman, 207 — Lords
Justices appointed by, on his
visits to Germany, 209 — legal pro-
ceedings directed to be carried on
in the English language by a sta-
tute passed in the reign of, 210 —
Begency Bill introduced by sanc-
tion of, on the death of the Prince
of Wales to make the Duke of
Cumberland regent, 247, 368 —
dislike of, to the first Earl of
Chatham, 273 --death of, the
prelude to a new distribution of
parties, 275, 368 — Hanoverian
troops taken into British pay by,
354 — personal regard and sus-
INDEX.
377
GEORGE III.
picions entertained by, towards
Lord Mansfield, 356 — opinions ex-
pressed by as to the incompetence
of Duke of Newcastle, 380— great
progress of manufactures and
commerce during the reign of,
402 — extensive colonial posses-
sions of, 403 — all political men
Whigs in the reign of, 446 — mode
of conducting affairs of the nation
during the latter part of the reign
of, 455 — panegyric on the virtues
of, by Lord Mansfield, 507.
GEORGE III., accusation against Mr.
Stone, sub -governor to, when
Prince, ii. 371 — colonies ceded to,
by Peace of 1762, 411 — change of
parties on the accession of, 456 —
on resignation of Lord Chatham,
Lord Bute appointed Minister to,
457 — libellous and insulting Let-
ter of Junius to, in 1769, 476 —
perverted state of the public mind
during the reign of, 481 — manners
of the House of Lords in early part
of reign of, 497 — anxiety of, for a
vigorous prosecution of the war
with America, 501 — antipathy
of, to Lord Chatham, 509 — energy
displayed by, in quelling the anti-
Popery Riots in 1780, 526 — gene-
ral illuminations to celebrate the
recovery of, from his illness in
1788, 557 — change of party poli-
tics during reign of, 578 — de-
bate on necessity of a Regency
owing to the insanity of, iii. 38 —
rebuke by, to Lord Kenyon re-
specting his Latin quotations, ii.
556; iii. 44 — mild remonstrance
of, to Lord Kenyon on his loss of
temper in Court, 46 — attempt on
the life of, by Hadfield, 57— eu-
logy on, by Lord Kenyon, 86 —
correspondence of, as to the Coro-
nation Oath connected with Catho-
lic Emancipation, 87 — state of the
roads and inns in the provinces
during the reign of, 105 — re-
mark of, to Lord Ellenborongh
when made Attorney - General,
144 — permanent insanity of, 213
— interesting letter from Lord
Eldon to Lord Ellenborough
describing an interview with, 214.
GLANVILLK.
GEORGE IV., new system of Courts
of Error for the review of the
decisions of the Common Law
Courts established in the reign of,
i. 185 — application by, when
Prince of Wales, for an account
from the King of the revenues of
the Duchy of Cornwall during his
minority, iii. 146 — letter of con-
dolence from, when Regent, to
Lord Ellenborough on his an-
nounced resignation from severe
illness, 229.
GERRARD, Sir Gilbert, Attorney-
General to Queen Elizabeth, i.
214.
GIBBON, Edward, masterly sketch
of Roman Civil Law by, in his
Decline and Fall, i. 276 ; ii. 394.
GIBBS, Sir Vicary, intimacy of, with
Lord Ellenborough at Cambridge,
iii. 98 — unprecedented number of
ex qfficio informations filed by,
when Attorney-General, 196 —
remark by, to Lord Campbell, in
1810, on the failure of the prose-
cution against Mr. Perry, 201 —
anecdotes of Mr. Justice Vaughan
related by, 237 — Puisne Judge
of the Common Pleas, Chief Baron
of the Exchequer, and Chief Jus-
tice of the Common Pleas, 227,
289 — singular cause of his pre-
mature decay, ii. 196.
GIFFARD, Sir Robert, appointed So-
licitor-General, iii. 289 — charac-
ter of, as a lawyer, by Lord Ten-
terden, 293 — raised to the peer-
age, 313.
GILBERT, Sir Jeffrey, a Baron of the
Exchequer, Commissioner of the
Great Seal, ii. 197 — excellent law
treatises by, 177.
GLANVILLE, R. de, parentage, a
lawyer, statesman, and soldier, i.
19 — takes the King of Scotland
prisoner, 20 — a Justiciar, 22—
his purity and impartiality as
Chief Justiciar, 23 — his work on
English jurisprudence, 24 — cha-
racter of, by Lord Coke, 29 — dig-
nity of Dapifer conferred on, 30
— takes the Cross, 33— dies at the
siege of Acre, 34.
378
INDEX.
GLANVILLE.
GLANVILLE, Serjeant, an accom-
plished lawyer and an intimate
friend of Sir Matthew Hale, i.
515.
GLENBEBVIE, Lord, Reports of
Cases tempore Lord Mansfield by,
— punning motto adopted by,
when raised to the peerage, ii.
405.
GLOUCESTER, Regal Ceremonies at,
in A.D. 1087, i. 14.
GLOUCESTERSHIRE, Sheriff of, mur-
dered, i. 30 — freeholders of, elect
Sir M. Hale to Cromwell's second
Parliament, 531 — to the Conven-
tion Parliament, 536 — dialect of,
576.
GLYN, John, Chief Justice of the
Upper Bench, early career of, i.
435 — assists in framing directory
for public worship, 436 — im-
peached for opposing Self-denying
Ordinance, 437 — reconciled to
Cromwell and appointed a judge,
438 — made Chief Justice of the
Upper Bench, 439 — points of
law decided by, 440 — resigns his
office and assists in the restora-
tion of the monarchy, 442 — as-
sists in drawing the impeachment
against Lord Strafford, 457 —
death of, 443.
GLYN, Serjeant, motion by, for in-
quiry into the conduct of the
Judges, A.D. 1770, ii. 484.
GODOLPHIN, Lord, urgent request
by, to Lord Holt, that he would
accept the Great Seal, ii. 165—
Prime Minister in 1710, 179.
GODRIC the pious Hermit, prophecy
of, respecting the blindness of
Bishop Pusar, i. 36.
GODWIN, Bishop, work by, De Pra3-
sulibus, i. 15.
GOODMAN v. HARVEY, doctrine laid
down in, by Lord Tenterden, now
exploded, iii. 312.
GORDON, Lord George, violent speech
of, in the House of Commons
against concessions to the Roman
Catholics, ii. 516 — tumultuous
procession headed by, through
London, 5 18— riots resulting from
GREY DE WERKE.
the intemperate language of, 521,
527 — counsel engaged for defence
of, iii. 13 — trial of and acquittal
on a charge of high treason, 15. ,
GTOWRIE Conspiracy, a real plot, ii.
305.
aOREE, settlement on the coast of
Africa, discontent among Eng-
lish troops at, under Governor
Wall, iii. 147.
* GOVERNOR, The,' an historical
work, by Sir T. Elyot, i. 127,
193.
GRAFTON, Duke of, libellous attacks
on, in the well-known letters of
Junius, ii. 476.
GRAHAM, Baron, occurrence on the
Western Circuit, i. 555.
GREEN, Sir Henry, Chief Justice of
King's Bench, an obscure person,
i. 93.
GREGORY, Sir William, appointed a
Justice of King's Bench in 1688,
ii. 117.
GRENADA, Island of, ceded to Great
Britain by the Peace of 1762,
memorable decision of Lord
Mansfield as to the illegality of a
tax imposed on the merchants of,
by the King without sanction of
Parliament, ii. 411.
GRENEWAY, Mr., murdered in Exe-
ter Change by a Portuguese noble-
man, i. 430.
GRENVILLE, George, appointed
Prime Minister, ii. 460 — the sys-
tem of taxing America introduced
by, in 1767, 466.
GRENVILLE, Lord, Prime Minister
of the Government of " All the
Talents " in 1806, iii. 183 —
quibbling argument used by, in
defending the incongruous posi-
tion of the Chief Justice being a
member of the Cabinet, 188 — let-
ter from, to Lord Ellenborough
on retiring from office, 195.
GRENVILLE, Sir John, bearer of the
King's letter to the Parliament, i.
538.
GREY DE WERKE, Lord, trial of, for
seduction, ii. 40.
INDEX.
379
GREY.
GREY, Earl of, speech in support
of the Bill for removing the dis-
abilities of the Roman Catholics,
iii. 322.
GREYSTOKE, Sir Ralph, a Baron of
the Exchequer, i. 138.
GRIMSTON, Sir H., Speaker of the
House of Commons, welcomes
Charles II., i. 541.
GROSE, Sir Nash, appointed Justice
of the King's Bench, February,
1777, ii. 395 — personal appear-
ance of, iii. 58 — decision of, in
Hay craft v. Creasy, 76 — quali-
fications of, as a Judge, 58,
155 — decision of, in Priestly v.
Hughes, that the marriage of an
illegitimate minor was valid, 161.
GROSVENOR, Lord, v. Duke of Cum-
berland, direction of Lord Mans-
field in celebrated cause of, ii.
425.
GROTIUS, the codifier of international
laws, ii. 327.
GUNNERSBURY, seat of Chief Justice
Richardson, i. 397.
GURNEY, Mr., the famous steno-
grapher, facetious remark by, i.
399.
H.
HABEAS Corpus Act, resolutions of
the Commons in 1628 made the
foundation of, i. 327 — suspension
of in 1744, ii. 243, 358— in 1801,
iii. 145 — bill for the improvement
of rejected in the House of Lords
through the opposition of Lord
Mansfield, ii. 454.
HACKER, Colonel, trial and execu-
tion of for assisting at the behead-
ing of Charles I., i. 505,
HADFIBLD, trial of for firing at
George III., iii. 57.
HAGUE, memorable letter, written
by Bolingbroke and published in
the ' Craftsman,' reflecting on
George II., prosecution for print-
ing, ii. 207, 541.
HALFHIDE v. PENNING, decision of
Lord Kenyon in, justified, iii. 34.
HALLAM, Henry, censures of, in his
HALE.
'Constitutional History of Eng-
land,' on Sir Edward Coke, dis-
proved, i. 345.
HANOVERIAN troops, employment of
by George II., debate in Parlia-
ment respecting, ii. 354.
HAIR, a lock of, sonnets on by Lord
Tenterden, iii. 273.
HALE, Sir Edward, his case for esta-
blishing the dispensing power, ii.
85 — opposition of four Judges to
it, 86 — judgment of Chief Justice
thereon, 87.
HALE, Sir Matthew, panegyric by
on Rolle, Chief Justice — excuses
himself from presiding at Penrud-
dock's trial, i. 438 — parentage of,
512 — education, 513 — fondness of
for stage plays, 514 — studies and
mode of life, 515 — advice to grand-
children as to drinking healths at
parties, 516 — taken by a press-
gang, 517 — system of study at
law and other sources of know-
ledge, 518 — early celebrity of,
519 — refusal to enter Parliament,
520 — counsel for Laud, 521 —
takes the covenant and treats for
the surrender of Oxford, 522 —
tries to bring about a settlement
between the King and the Parlia-
ment, counsel for Charles I., 523
— for Duke of Hamilton, Lord
Craven, and other Royalists, 525
— becomes a Judge under Crom-
well, 527 ; iii. 39 — independent
conduct as a Judge in criminal
cases, i. 529 — elected to Crom-
well's second Parliament for
Gloucestershire, 531 — attends
Cromwell's House of Lords as
one of the Judges, 533 — declines
to act under Richard, 534 —
M.P. for Oxford University and
for Gloucestershire in 1660, 535 —
proposes that the restoration of
the King shall be under conditions
only, 442, 538 — is presented to the
King — opinion of on the Thirty-
nine Articles, 541 — conduct of
respecting the regicides, 542 —
made Chief Baron, 545 — admi-
rable rules laid down by for his
conduct as a Judge, 547— made
380
INDEX.
HALLIDAY.
HAWKS.
Chief Justice of England, 549 —
qualifications as a common law
Judge, ib. — as an equity Judge,
551— settles disputes after the fire
of London, 553 — anecdotes of his
judicial purity, 554 — opinion of
on the validity of Quakers' mar-
riages, 557 — conduct towards
John Bunyan, 559 — superstitious
cruelty to women accused of witch-
craft, 561; ii.171 — censured by Sir
M. Foster, i. 567 — intimacy with
Baxter and Bishop Wilkins, 568 —
prepares a bill for " a comprehen-
sion," 569 — failing health, 571 —
resignation, 572 — last interview
with the King, 573 — last illness,
576 — various publications, 577-
582 — funeral, 578— character, ju-
dicial writings, 581 — religious
views — dress, disregard of money,
535 — family and descendants, 588.
HALLIDAY'S Life of Lord Mansfield,
a most indifferent specimen of
biography, ii. 307.
HALL'S Chronicle, events narrated
in, i. 128.
HALSEY, Colonel, tried and acquitted
for levying war against Cromwell,
i. 444 — friendly conduct of to
Chief Justice Newdigate, 446.
HAMILTON, Duke of, improper exe-
cution of, i. 484-525.
HAMPDEN, John, memorable case of,
decision of the Judges in, i. 401 —
resistance by, made under the ad-
vice of Lord Coke, 336.
HANKFORD, Sir William, Chief Jus-
tice of King's Bench — birthplace
and ingenious suicide, i. 139 —
epitaph, 140 — supposed committal
of Henry V. by, disproved, 132.
HANMER, Job, reports of cases begun
by Lord Kenyon, edited by, iii. 89.
HARDWICKE, Earl of, Chief Justice
of King's Bench and Chancellor,
ii. 213— life of by Harris, 213,
229 — stanzas made on, 541. — See
Lives of the Chancellors, v. 1.
HAREWOOD Church, burial place of
Sir W. Gascoigne, the celebrated
Chief Justice, i. 137.
HARGRAVE, Mr., law tracts by, i.
581 — learning and dilatoriness of,
iii. 10.
HARRISON, Eev. Thomas, fined for
contempt of court, i. 402 — da-
mages awarded against, 403.
HARROWBY, Lord, title selected by
Chief Justice Ryder, ii. 257 —
letter to Mr. Ryder respecting the
peerage of, from Mr. Yorke, 258 —
dignity of conferred in 1776, 259
— Earl of, a statesman and orator,
in the reign of George III. and
George IV., 265.
HARCOURT, Lord, Lord Chancellor,
limited accomplishments of, ii.
562.— See Lives of the Chancellors,
iv. 430.
HARVEY, Mistress of Lord Chan-
cellor Thurlow, a heroine in the
' Rolliad,' iii. 107.
HASTED'S History of Kent, quota-
tion from, i. 53, 113.
HASTINGS, Warren, memorable trial
of, debate whether the impeach-
ment had abated by the dissolu-
tion of Parliament, iii. 39 — coun-
sel retained in, 110 — incidents
during trial, 112-130 — decision of
the House of Lords that the rules
of law respecting admissibility of
evidence should guide them, 116
— conclusion of, at the termination
of 145 days, 131.
HAT, worn by President Bradshaw,
preserved at Oxford, i. 482.
HATTON, Lady, parentage and wi-
dowhood of, i. 254 — second mar-
riage, 256 — betrothal of her daugh-
ter without the knowledge of,
296 — her resentment and revenge,
297 — prosecuted and imprisoned
for concealing her child, 300 —
restored to liberty and favour at
Court, 303 — conduct of in the
Civil Wars, 346.
HATTON, Sir Christopher, a Com-
missioner for State trials, i. 205,
206 — his conduct respecting the
Earl of Northumberland's death,
214, 216 n. — See Lives of the
Chancellors, ii. 136.
HAWKS, high price of in the twelfth
century, i. 41.
INDEX.
381
HAYCRAFT.
HAYCRAFT v. CREASY, decision in
overruled, iii. 75, 81.
HAYWARD, Sir J., his account of
Ixichard II.'s deposition, i. 116 n.
HE ALE, Serjeant, speech of upon the
rights of the Crown in the House
of Commons 1601, i. 350.
HEALTHS, jovial custom of drinking
in the seventeenth century cen-
sured by Sir M. Hale, i. 51.
HEARD, Sir Isaac, conversation of
with an eye-witness of the exe-
cution of Charles I., ii. 304.
HEARN, Thomas, col lection of curious
discourses by, i. 368.
HEATH, Mr. Justice, sudden death
of, _ iii. 284 — refusal of to be
knighted, ib.
HEBRIDES, The, BoswelPs account of
Dr. Johnson's tour in, ii. 575.
HEATH, Sir Robert, parentage and
education, i. 409 — made Solicitor-
General, 410 — conducts the prose-
cution against Eliot and others,
412 — argument of against Parlia-
mentary privilege, 413 — schemes
for raising supplies suggested by,
414— made Chief Justice of the
Common Pleas, 415 — dismissed
for bribery, and returns to the bar,
416 — made Chief Justice of Eng-
land, 417 — removed by the Par-
liament, 418 — exile and death,
419.
HEMINGTON Church, burial-place of
Chief Justice Montague, i. 178.
HENDERLAND, Lord, opinion of in
favour of public schools, ii. 555.
HENGHAM, Ralph de, Chief Justice
of the King's Bench, i. 71 — law
books composed by, 72 — guardian
of the kingdom, 74 — charged with
bribery and fined, 75— made Chief
Justice of Common Pleas, 76 —
character, 77.
HENRY I., restoration of Saxon in-
stitutions by, i. 16.
HENRY II., Chief Justiciar more than
a year, i. 17— hard pressed in his
continental dominions by Louis
VII., 19— War against by Wil-
liam the Lion, king of Scotland,
20 — pilgrimage of to the shrine of
HERALD.
Becket, 21 — imprisons his queen
in the Castle of Winchester, 23 —
renowned for his love of justice,
24 — compendium of the laws
drawn up by Glanville at the
command of, 28 — submission of
the Welsh to, 30 — dispute of with
the monks of Canterbury, 31 —
death of, 33.
HENRY III., ravages of the Welsh
about Montgomery in the reign of,
i. 50 — expedition by against the
Welsh, 56 — compelled to swear
obedience to the Provisions of
Oxford, 57' — obtains from the Pope
a dispensation from his oath, 58 —
statute of Marlbridge passed in
reign of, 63.
HENRY IV. banished by Richard II.,
i. 122 — proclaimed King:, 123 —
Gascoigne appointed Chief Justice
of King's Bench by, 124 — pru-
dence of, 145.
HENRY V., irregularities of, ii. 125 —
committed to prison by Chief
Justice Gascoigne, 127-133 — suc-
ceeds as King, 131-136 — reap-
points the Chief Justice and other
Judges selected by his father, 120,
137 — warlike proceedings of, 140
— gallantry of, 145.
HENRY VI. a prisoner in the Tower,
i. 142 — dethroned, 143— restored
to power, 144 — piety of, 146 —
after ten years' captivity replaced
on throne, 151 — murdered after
the fataljbattle at Barnet, 152 —
rack in the Tower introduced in
the reign of, 252.
HENRY VII., deep dislike of to the
Yorkists, i. 157 — stern and wary
conduct of, 160.
HENRY VIII., gay and licentious dis-
position of, i. 160 — makes him-
self Pope in England, 164 — pro-
secutions for misprision of treason
directed by against Fisher, Bishop
of Rochester, and Sir Thomas
More, 165 — tyrannical proceed-
ings of against his wives, 173.
HENSEY, Dr., trial and conviction of
for treason, ii. 454.
HERALD, Morning, action against for
382
INDEX.
HERBERT.
a libel on Mr. Pitt, falsely accusing
him of gambling in the funds, ii.
545.
HERBERT, Sir Edward, Chief Jus-
tice of King's Bench on promotion
of Jeffreys, ii. 80 — parentage, At-
torney-General for Ireland, 81 —
Chief Justice of Chester, 82— of
England, 83 — opinion of on the
trial of Lord Delamere, 84 — judg-
ment on the dispensing power, 85
— popularity of with the King, 89
— offends the King by refusing to
enforce martial law during peace,
91 — dismissed, 93 — following
James into exile, is excepted from
the Act of Indemnity, 94 — private
worth — family, 95.
HERBERT, Sir Edward, an old cava-
lier, father of the Chief Justice,
holds the Great Seal when in exile
with Charles II., ii. 80, 94.
HEWITT, Sir James, appointed a
Judge of the Court of King's
Bench, November, 1766, after-
wards Lord Chancellor of Ireland,
with a Peerage, ii. 395.
HEREFORD Assizes, important quo
warranto case tried at, iii. 277.
HERNE, leading counsel for Laud,
able argument of, i. 521.
HENLEY, Sir Robert, Attorney-
General, made Lord Keeper by the
mismanagement of Chief Justice
Willes, ii. 274 — created an Earl,
275.— See Northington.
HILL, Serjeant, a deep black-letter
lawyer, anecdotes respecting, ii.
571-3.
HISTORY, ancient and modern, letters
on by Lord Mansfield, ii. 334.
HISTRIOMASTIX , a publication against
stage plays and other similar
amusements, i. 394.
HOBART, Sir Henry, Attorney-Ge-
neral, made Chief Justice of the
Common Pleas, i. 276.
HODGSON v. SCARLETT, memorable
action of defamation tried before
Lord Ellenborough, iii. 170.
HODY, Sir John, his alleged com-
mittal of Henry V. refuted, i. 132
— salary as Judge increased, 140 n.
HOLT.
HOLBORNE, argues the question of
ship-money for four days, i. 453
—opposes the Bill of Attainder
against Lord Strafford, 460.
HOLLAND, Earl of, executed in 1649
by a casting vote of the House of
Commons, i. 484.
HOLLAND, Lord, his excellent imi-
tations of Lord Thurlow, ii. 581
— motion by respecting the con-
duct of Government prosecutions,
iii. 203.
HOLLINGSHED'S Chronicles, i. 110.
HOLLOWAY, Sir Richard, Justice of
King's Bench, gives his opinion in
favour of the Bishops, ii. 109 —
dismissed from his place, 112 —
examined at the bar of the House
of Commons in support of the In-
demnity Act, 114.
HOLROYD, Sir George, appointed a
Judge of the King's Bench, cha-
racter and ability of as a Judge,
iii. 185, 236, 287.
HOME, John, verses by, on the first
taxation of claret in Scotland, ii.
575.
HOLT, Sir John, birth-place, ii.
119 — education and early ex-
cesses, 120— studies law at Gray's
Inn, 122 — rides the Oxford cir-
cuit, 123 — counsel for Lord
Danby, 124 — for Lord Russell,
125 — argument in Lord Maccles-
field v. Starkey, 127— made Re-
corder of London, 128 — refuses to
aid the arbitrary measures of the
King, 91, 129 — is dismissed from
his Recordership,acts as assessor to
the Peers in the Convention Par-
liament, 130 — enters Parliament,
131 — manager for the Commons
at the " Abdication " conference,
132 — appointed Chief Justice of
the King's Bench in 1688, 107,
133— merits as a Judge, 118, 135
— his reporters, 136 — celebrated
judgment by, in Coggs v. Bernard,
137 — decides that a slave is free
on coming into England, 139 —
decisions of, in various cases, 140
— the weight of his opinion with
Judges and the public, 141 — con-
duct of, when presiding at State
INDEX.
383
HOLT.
trials, 143 — his decision in Sir
John Friend's case considered and
justified, 146 — summoned before
a Committee of Privileges, 150 —
judgment in the Bankers' case,
152 — refuses to be Chancellor,
154 — a Lord Commissioner of the
Great Seal, 155 — his decision in
the case of Ashby v. White, 157,
160 — his opinion for discharging
the Aylesbury men, 161 — fabu-
lous story respecting his threat to
commit the Speaker of the House
of Commons, 164 — refuses the
Great Seal a second time, 165 —
his public funeral, 167 — magni-
ficent monument, 169 — his want
of knowledge in literary and
scientific matters, 170 — effects
the repeal of Statutes for punish-
ing witchcraft, 171, 567— -detects
a false prophet, ii. 173 — ill sorted
marriage and representatives,
177.
HOLT, Sir Thomas, father of the
Chief Justice, a serjeant-at-law,
one of the founders of the Tory
party, taken into custody by order
of the House of Commons, his
death, ii. 119.
HONE, William, prosecution of for
the publication of profane libels,
iii. 223.
HOOD, Lord, election of for West-
minster in 1784, iii. 27.
HOBNE Tooke, John, insolent con-
duct of towards Lord Kenyon, iii.
69-71 — debate respecting right of
to sit in the House of Commons,
148.
HOTTENTOT Venus, case of the, ar-
gued in the King's Bench, iii. 161.
HOUGH, Bishop, spirited opposition
of to the introduction of popery
into Magdalen College, Oxford, ii.
102, 284.
HOUSE of Commons. — See Parlia-
ment.
HOVEDEN'S Chronicle, extracts from,
i. 17, 18, 24, 34.
HOWARD, Catherine, Queen, reasons
which occasioned the unjust exe-
cution of, i. 173.
HYDE.
HOWARD, Sir William, Justice of
Common Pleas, an able and up-
right magistrate, i. 84 — descend-
ants, 85.
HOWARD v. BINGHAM, famous case
of crim. con. tried before Lord
Kenyon, iii. 67.
HOWORTH, Mr., K.C., melancholy
death of, iii. 91.
HUBERT, W. Archbishop, Chief
Justiciar, i. 37 — judgments, se-
verity, deposed, 38. — See Lives of
the Chancellors, i. c. vi.
HUDIBRAS, verses in on the dis-
graceful conduct of Maynard and
Glynn at the trial of Colonel Pen-
ruddock, i. 438.
HUME'S History of England, defects
and errors in, i. 276, 321, 341, 375
—Quotations from, 79, 134, 150,
395.
HUNCOTE, in Lincolnshire, grand
assize held at, in the reign of
Henry I., i. 16.
HUNT, Henry, facetious remark to,
by Lord Ellenborough, iii. 240.
HUNT, Leigh, prosecution of for libel,
iii. 201.
HUNTER, Mr., Judges and other
eminent men educated by at Lich-
field School, ii. 279.
HURD, Bishop, character of Lord
Mansfield by, ii. 581.
HUSSEY, Sir John, parentage, i. 154
— made Chief Justice of King's
Bench, 155 — submits to Eichard
III., 156 — continued by Henry
VII., 157 — his judgments on the
attainder questions, and death,
158.
HUTTON, Mr. Justice, declares
against the legality of ship-money,
i. 401 — attack upon, for this judg-
ment, 402— popularity of, 403 —
trial of Harrison for an insult to
in open court, 416.
HYDE, Sir Nicholas, Chief Justice
of King's Bench, i. 381— his judg-
ment in Sir T. Darnel's case, 382
— his opinions on the privileges of
the House of Commons, 385— his
early death, 386 — bis character by
384
INDEX.
HIDE.
contemporaries, 387 — reply in the
House of Lords touching the libe-
ration of parties committed by
King and Council, 327.
HYDE, Sir Robert, made a Judge of
Common Pleas at the Restoration,
i. 500— made Chief Justice of
the King's Bench, 501 — hangs a
printer for publishing a libel, 502
— sudden death of, 503.
I.
IMPEY, Sir Elijah, debate respect-
ing, in the House of Commons,
iii. 32.
IMPOSITIONS, unconstitutional deci-
sion of Chief Baron Fleming in
the great case of, i. 233 — impro-
per proceedings of the King by
means of, 234.
INDEMNITY, Act of, debate in the
House of Commons on, ii. 94,
114.
INDIA, angry debates respecting Bill
introduced by Mr. Fox to regulate
affairs in, ii. 535.
INK-BOTTLE story of Lord Kenyon
and the Law Student, iii. 85.
INNS of Court, established as schools
of Common or Municipal Law,
i. 72— "moots" and bolts at,
160 — rules of, respecting admis-
sion to the bar, 243, 515— lec-
tures at, 244 — processions from,
to Westminster, 267, 353 —
amusements in, 358 — jurisdiction
of, ii. 417 — examination at, re-
commended, iii. 6.
INSANITY, when an exemption from
criminal responsibility, iii. 59 —
libellous to falsely assert that the
sovereign, or any other person, is
afflicted with, 303.
INSTITUTES of Lord Coke, analysis
of, i. 341.
INSURANCE, Maritime, law of, settled
by Lord Mansfield, ii. 405.
INVESTIGATION respecting the con-
JAMES i.
duofc of the Princess of Wales,
iii. 205.
INTOLERANCE on religious subjects
often accompanied with immo-
rality and infidelity, ii. 576.
IRELAND, the want of self-reliance
manifested by the Celtic in-
habitants of, i. 2 — considered a
penal colony by the English, 113,
320, 362— society in described,^.
235 — laws of England received in,
by command of various Kings,
412 — coercive measures for,
passed, iii. 145.
IRELAND, Duke of, Pontefract Castle
fortified by, i. 97 — impeached for
treason, 103— flight of, 104. -
IRISH Porters, memorable ballad, so
called, on Sir Dudley Ryder's ex-
officio information against Wil-
liam Owen, ii. 255.
IVYN, Sir John, Ch. Jus. of King's
Bench, i. 140.
J.
JACKSON, Randle, counsel to East
India Company, anecdotes relating
to, iii. 238.
JAMAICA conquered from Spain by
Cromwell, abandoned by its inha-
bitants and re-peopled by English
emigrants, ii. 410.
JACOBITISM at Oxford in 1753 de-
scribed, ii. 376.
JAMES I., accession of, i. 220, 233
— import duties illegally exacted
by, 234 — approval by, of Fleming
as a Judge, 236 — attends at the
trial of Garnet, 264 — attempt by,
to rule England as an absolute
King, 269 — amusing anecdote of
his attempt to act as Judge, 272
— Bacon made Attorney-General
by, 276 — benevolence demanded
by, 277 — tyrannical conduct of,
to Peacham, 278 — anxiety of, to
screen the murderers of Sir T.
Overbury, 279 — claim of, to sit
and try causes resisted by Sir
Edward Coke, 270— anger of, to-
wards the Judges in the matter of
INDEX.
385
JAMES II.
the Commen dams, 284 — salaries of
Judges in the reign of, 286 — dis-
missal of Lord Coke by, 292— in-
terference of, in promoting the
marriage of Sir John Villicrs and
Lady Fanny Coke, 301 — character
of, by Mr. D' Israeli, 293, 318—
attempt by, to alter the law of
England by proclamations, 273 —
remonstrance of the Judges to,
against the attempt, 275 — title of
King of Great Britain improperly
assumed by, 353 — Williams ap-
pointed Lord Keeper by, 312 —
Parliament adjourned by, after the
conviction of Lord Bacon and Sir
Giles Mompesson, 313 — forbids
the House of Commons to discuss
matters of State, and denies their
privileges, 315 — frantic conduct
on hearing of the Protestation,
317 — Lord Coke committed to the
Tower by order of, 319— statute
passed by, to abolish monopolies
and authorizing the Crown to
grant patents for securing inven-
tions, 320 — delight of, at his pedi-
gree from Cerdic the Saxon and
William the Conqueror being set
forth by the Speaker of the House
of Commons in his address in
1614, 371— death of, 321.
JAMES II., proceedings against, in
1680, as a Popish recusant, stopped
by Chief Justice Scroggs, ii. 17 —
prosecution of the seven Bishops
by, 48, 104 — proceedings of, to
bring in Popery, 78, 89 — early pa-
tronage of Judge Jeffreys by, 79 —
conduct of, justified by Mr. Clark,
82 — attempt by, to establish the
dispensing power, 85 — honest
Judges arbitrarily deposed by, 86,
88, 93, 100, 101, 155— attempt
by, to enforce martial law in a
time of peace, 91, 129 — residence
at St. Germain's, 94 — conversa-
tion of, with Jeffreys about the
fitness of Sir Eobert Wright to
be a Judge, 98 — attempt by,
to introduce Popery at Oxford,
101 — Declaration of Indulgence
ordered to be read by, 103 — foolish
selection by, of Allybone as a
Judge, 110 — infamous selection
VOL. III.
JONES.
by, of Judges, 86, 101, 112, 116
— attempt by, to seduce Lord
Holt, 128.
JARDINE, David, Criminal Trials
edited by, i. 262.
JEFFKEYS, Judge, counsel against
William, Lord Russell, ii. 44 — opi-
nion respecting him by Charles
II., 75 — made Chief Justice of
King's Bench, in 1683, to secure
the conviction of Sydney, 46 —
vicious and intemperate habits
of, 76 — hypocrisy and duplicity,
78 — appointed Chancellor, 79. —
See Lives of the Chancellors, iii.
495.
JEKYLL, Sir Joseph, M.R., a Com-
missioner of the Great Seal, ii.
197.
JEKYLL, Joseph, Master in Chan-
cery, wit and anecdotes of, iii. 31,
51, 89.
JENKINS, Captain, account by, of
the cruelties of the Spaniards to
English prisoners, ii. 344.
JENKINS, Judge, punishment of, for
setting the Parliamentary Com-
missioners at defiance, i. 467.
JENKINS, Sir Leoline, character of,
iii. 2, 82.
JENNEB, Sir T., Baron of the Exche-
quer, made Recorder of London
by the King, ii. 128 — an incom-
petent Judge, 93 — a visitor for
the introduction of Popery into
Magdalen College, Oxford, 101—
dismissed from office in 1688, 117.
JERMYN, one of six Judges who
sent in their adhesion to Crom-
well after the execution of the
King, i. 470.
JEWS, massacre of the, i. 33 — ex-
tortions of, 78 — banished from
England by Edward I., ii. 27.
JOHNSON, Dr., pamphlet by, on the
American revolt, ii. 496 — his opi-
nion in favour of public schools,
555 — severe discipline at school
approved by, 280 — his character
of Lord Mansfield, 566, 573, 574
—dislike o*; to Scotland, 307.
JONES, Sir Thomas, made Chief
Justice of the Common Pleas in
20
386
INDEX.
JONES.
1683, ii. 46— reports by, 47—
opinion of, given against the King's
dispensing power, 86.
JONES, Sir William, Senior Puisne
Judge of the King's Bench in
1635, i. 400.
JONES, Sir William, Judge in India,
masterly essay by, on the Law
of Bailments, ii. 138 — pamphlet
on the principles of Representative
Government written by, iii. 24.
JONSON, Ben, Masque of Beauty by,
i. 254.
JUDGES, English, salaries of, i. 67,
72, 78, 84, 92, 109, 114, 286— opi-
nion of, on the privileges of Parlia-
ment in 1387, 98 — extra-judicial
opinions given to the Crown by,
110 — convicted, fined, and ba-
nished, for taking bribes, 75 — arbi-
trations by, discontinued, 135 —
formerly always rode the same cir-
cuit, 190, 387, 397 — merits and
services of the Eepublican, 420,
430, 444, 492 — introduced into
Scotland, 473 — costume of, in
the 17th century, 482 — in the
19th century, iii. 91 — difficulty
of finding eligible men to act as
at the Restoration, i. 492 — ap-
pointed for life at the Restoration,
for a short period, 500 — Lord Cla-
rendon's admonition that courage
is an indispensable quality for, 501
— admirable rules for the conduct
of, laid down by Hale, Chief Jus-
tice, 547 — duty of, not to inter-
rupt Counsel, or to be loquacious
on the bench, 548 — duties of, not
to manifest revengeful feelings
on account of interruption, 551 —
seniority of, ii. 2 — rule as to their
attendance at levees, 8 — opposi-
tion of, to the King's dispensing
power, 86 — liable to impeach-
ment for partiality in trying
causes, 105 — list of, before and
after the Revolution, 117 — errors
frequently found in newly ap-
pointed, 134 — appointment of,
during good behaviour, vetoed by
William III., 155 — a competent
judge defined, 168, 276, 486 — to
be qualified for due discharge of
KELYNGE.
duties, must be downright trades-
men, 169 — of King's Bench act-
ing as police magistrates, 175
— men of eminence appointed,
in the time of Lord Mansfield,
395 — duties of, 397 — ought not
to hold political offices," 451 —
motion by Glynn in 1770 to in-
quire into the conduct of, 484
— opinion of, solicited by the
House of Lords, iii. 40 — incor-
ruptibility common to, 154 — resi-
dences of, 246 — travelling ex-
penses of, 336 — extreme irregu-
larity of, in their conferences, 337
— permitted to sit in the House of
Commons during the Common-
wealth, i. 202.
JUDICIAL Institutions firmly esta-
blished by Edward I., i. 70.
JUNIUS, charges of, against Lord
Mansfield, ii. 426, 437 — letter
of, to the King, 476— to Lord
Mansfield, 481, 490 — silenced,
492 — authorship of, denied by
Lord Sackville, 548.
JUEY, trial by, its introduction into
Scotland, ii. 554.
JUSTICES of the Peace first created
by Edward III., i. 90.
JUSTICE in Masquerade, a metrical
broadside on the butcheries of
Scroggs, ii. 5.
JUSTICE Vindicated, a book by
Roger Coke, curious anecdotes in,
i. 347.
JUSTICIAR, Chief, origin and func-
tions of the office, i. 1 — power of,
reduced, 3.
JUSTINIAN, Pandects of, lectures on,
formerly given at Oxford, ii. 326.
K.
KEBLE'S Reports, i. 501 — opinion of
Lord Mansfield respecting, 429.
KEILWAY, a reporter in the 16th
century, i. 339.
KELYNGE, Sir John, conduct of, as
counsel, i. 504 — made a Judge
of King's Bench, 506 — Chief
INDEX.
387
KENT.
Justice, 507 — his improper con-
duct as a Judge, 509 — proceedings
against him in Parliament, 510 —
death, 511-549 — his interference
on behalf of women accused of
- witchcraft, 564 — forced construc-
tion of the law of treason by, on
the trial of the apprentices, ii. 30
— manuscript cases collected by,
edited by Lord Holt, 177,
KENT, History of, by Hasted, i. 113.
KENWOOD, seat of Lord Mansfield,
grand display of fireworks at, in
celebration of the King's recovery,
ii. 557 — fete champetre given to
the fashionable world at, by the
great-grand nephew of Lord Mans-
field, 552.
KENYON, Lord, parentage of, iii. 2
— defective education of, 3 —
articled to an attorney, 4 — ad-
mitted at the Middle Temple, 5
— exclusive attention to legal
studies, 6 — writes reports of cases,
7 — intimacy with Dunning, and
call to the bar, 8 — fags for Dun-
ning, 9 — and for Thurlow, 10 —
appointed Chief Justice of Chester,
11 — enters Parliament, 12 — coun-
sel for Lord G. Gordon, 13 — mi-
serable speech made by, 14 — ap-
pointed Attorney-General under
Lord Rockingham, 17 — alterca-
tion with Sir James Mansfield in
the House of Commons, 18 — zeal
of, against public accountants, 19
— resigns office, 20 — reappointed
by Mr. Pitt, 23— made Master of
the Rolls, 26 — advice of, respecting
the Westminster Scrutiny, 27 —
created a Baronet, 29 — abused in
the Rolliad, 30 — conduct of, as an
. Equity Judge, considered, 33 —
appointed to succeed Lord Mans-
field in the King's Bench, and
created a Peer, 36 ; ii. 549, 550 —
speech by, on the insanity of
George III., iii. 38 — on the im-
peachment of Warren Hastings,
39 — opposes the Libel Bill of Mr.
Fox, 40 — answer of, to Lord Stan-
hope, 41 — judicial character of, 44
— temper, demeanour of, iii. 45 —
congratulated ironically by George
KINGSTON.
III., 46 — legal decisions by, 47 —
behaviour of, on the trial of Stock-
dale, 48 — severe sentences im-
posed by, in prosecutions for
alleged sedition, 49 — perversion
by, of the clause in the Libel Bill,
enabling the Judge to give his
opinion to the jury on matter
of law, 51 — violent address to
Juries by, on several State trials,
52-56 — first seen by Lord Camp-
bell, 57 — altercation with Mr.
Clifford, 60 — true constitutional
doctrine respecting privilege of
Parliament laid down by, and
since affirmed by statute, 62 — de-
cision of, on trial of Lord Abing-
don, 64 — doctrine of consequen-
tial damage checked by, 65 —
laudable zeal of, against manufac-
turers of slander, 66 — misled by
his love for morality in trials for
adultery, 67 — indignation of, at
being termed "a legal monk, "68 —
unfortunate encounter with Home
Tooke, 70 — erroneous decisions of,
74 — fury of, against forestallers
and regraters, 77 — last illness, and
death of, 81 — touching praise of,
by his son, 82 — popularity of, with
juries — abuse of attorneys by,
83 — his efforts for the suppres-
sion of pettifogging, 84 — kindness
of, to students, 85 — inkbottle
story with the law student, 85 —
eulogy of, on George 111., 86 —
opinion given to the King respect-
ing Catholic Emancipation, 87 —
in favour of a severe code, though
not a hanging judge, 88 — facetiae,
penurious mode of life of, 89 —
dress, residences, will, descend-
ants, 90-93 — cause of his anti-
pathy to Lord Mansfield, ii. 394.
KING'S Bench Court, ambulatory, i.
3 n. — its origin, 71 — trial at bar
respecting the appointment of
chief clerk of, ii. 176.
KINGSCOTE, of Kingscote, in Glou-
cestershire, guardian of his kins-
man Sir Matthew Hale, i. 513.
KINGSTON, Duchess of, her trial for
bigamy in Westminster Hall, ii.
500.
2 c 2
388
INDEX.
KIN LOCH.
KINLOCH, Alexander and Charles,
trial of, for taking part in the Re-
bellion of 1745, ii. 225.
KNIGHTHOOD, attempt to make it
compulsory on land -owners, i.
414— abolished by the Long Par-
liament, 414 n.
KNIGHTLEY, Sir Richard, prosecuted
and fined for publishing a pam-
phlet on a better observance of the
Sabbath, i. 217.
KNYVET, Sir John, Chief Justice of
King's Bench and Chancellor, i.
94. — gee Lives of the Chancellors,
i. 264.
KYD, Stewart, blasphemous conduct
of, iii. 69.
L.
LACY, a fanatic, pretending to be a
prophet, committal and punish-
ment of, by Lord Holt, ii. 173.
LANE, Chief Baron of Exchequer,
made Lord Keeper, i. 468 — coun-
sel for Lord Stratford, 521.—
See Lives of the Chancellors, ii.
608.
LANFEANC, an Italian, archbishop of
Canterbury, memorable trial of,
on Penenden Heath, with Odo,
respecting large estates in Kent,
i. 6.
LATERAN Council in 1179, the Eng-
lish Bishops represented at, i. 36.
LATITAT, Writ of, a contrivance in-
vented to remove causes into the
Court of King's Bench from the
Common Pleas, i. 354 ; iii. 155.
LAUDEEDALE, Lord, anecdote related
by, of Lord Ellenborough, iii.
235.
LAUGHER v. POINTEE, division of
opinion among the Judges in, iii.
306.
LAW, Bishop of Carlisle, memoir of,
iii. 94.
LAW, Right Hon. C. E., M.P., letter
from, to Mr. Smith, iii. 230 —
death of, 246.
LAWLESS, Mr., ruinous proceedings
LEE.
against, adopted by Lord Kenyon,
iii. 84.
LAWEENCE, Sir Soulden, Justice of
the King's Bench, great acute-
ness and' discrimination denoted
by the smile of, iii. 58 — decision
of, respecting the publication of
Parliamentary proceedings, 63 —
judgment of, in Haycraft v.
Creasy, 76 — college friend of Lord
Ellenborough and Sir V. Gibbs,
98 — great ability of, as a lawyer,
155 — exchanges from the Court
of King's Bench to the Common
Pleas, in 1808, owing to a quarrel
with Lord Ellenborough, 278.
LAWS and Customs of England,
celebrated treatise on, by Glan-
ville, i. 25.
LAWYERS' feasts, celebrity of, in
early time, i. 171, 195.
LAWYERS, costume of, in the 17th
century, i. 585 — envious disposi-
tion of, towards members of their
own profession celebrated for ele-
gant accomplishments, ii. 565.
LAYER, Christopher, trial of, for
high treason, ii. 186 — harsh treat-
ment of, by Chief Justice Pratt
in refusing to allow the chains to
be removed from his person dur-
ing the trial, 187.
LE BLANC, Sir Simon, Justice of
the King's Bench, an eminent
Judge of foolish aspect, iii. 58 —
judgment of, in Haycraft v.
Creasy, overruling the decision of
Lord Kenyon, 76 — presides, in
the absence of the Chief Justice,
at the Nisi Prius sittings of 1801,
81 — a college friend of Ellen-
borough and Gibbs, 98 — ability
of, 155 — decision of, in Rex v.
Creevey, 167.
LECHMERE, Lord, made Chancellor
of Duchy of Lancaster, ii. 194.
LEE, John, Solicitor-General to the
Coalition Ministry, refuses to pro-
secute the Dean of St. Asaph for
publishing a libel, iii. 24 — a leader
on the Northern Circuit, 104.
• LEE, Sir George, Dean of Arches,
and Judge of the Prerogative
INDEX.
389
LEE.
Court, ii. 214 — an excellent de-
bater in Parliament, 217.
LEE, Sir William, parentage, ii. 214
— passion of, for special pleading,
215 — victory in the Ivinghoe case,
216 — made a Judge of King's
Bench, 217 — Chief Justice of
England, 218 — decision on the
rights of women, 220 — conduct
on the trials of the Rebel Lords,
221— death, 229 — diaries and ma-
nuscripts, 230-232 — family, eloge
on, by Sir James Burrow, 231.
LEGACIES, decision by Lord Kenyon
that actions at law cannot be
maintained to recover, iii. 47.
" LEGAL Estate," judicial decisions
on the rights of the, iii. 47.
LEICESTER, E., Earl of, Chief Jus-
ticiar, fines and imprisons Arch-
bishop A'Becket, i. 18.
LENS, Serjeant, legal qualifications
of, iii. 225 — recommended by Lord
Ellenborough as his successor,
289.
LEVINZ, Sir Cresswell, Justice of the
Common Pleas, displaced as a
Judge, by James II., for his in-
dependence, acts as a counsel for
the Bishops, ii. 48.
LEWES, memorable victory obtained
by the Barons at, in 1263, i. 58
— Chief Justice De Brus taken
prisoner at, 66.
LEY, Sir James, parentage and edu-
cation, i. 362— Chief" Justice of
Ireland, 362 — made Chief Justice
of England, 364— Speaker of
House of Lords, 365 — -Lord High
Treasurer, with a Peerage, 367—
his descendants, 368.
LIBEL, rights of Juries in cases of,
ii. 540.
LIBEL, law of, progress of opinion
respecting, ii. 544 — decision of the
Judges on, iii. 40, 49-57— -persons
out of England amenable for pub-
lishing a libel in England, 159.
LIBEL Act of Lord Campbell, 6 and
7 Tie. c. 96, permitting the truth
to be given in evidence, and re-
ferring to the Jury the question
whether the defendant was ac-
LOEDS.
tuated by malice or by a desire
for the good of the community,
ii. 545 ; iii. 42.
LICHFIELD School, Judges and other
eminent men educated at, by Mr.
Hunter, ii. 279, 308.
LILBTJRNE, John, cruel sentence
passed on, by the Star Chamber,
in 1638, i. 480.
LINGARD, Dr., History of England,
facts quoted from, i. 49, 78, 131,
204 ; ii. 10.
LITERARY Property, statutable en-
actments for the protection of, ii.
429.
LITERARY criticism, freedom of,
maintained, iii. 168.
LITERATURE, alleged contempt for,
by eminent lawyers, i. 337; ii.
169, 277 ; iii. 343.
LITTLEDALE, Mr. Justice, eminent
qualities of, as a Judge, iii. 291.
LITTLETON, Sir Thomas, his remark
against Wright, Chief Justice, in
the debate on Indemnity Act, ii.
114.
LITTLETON, Commentary on, by
Lord Coke, said to contain the
whole Common Law of England,
i. 340.
LLANDAFF (Watson), Bishop of,
imprisonment of Benjamin Flower
for a libel on, iii. 60.
LLEWELLYN, Prince of Wales, inva-
sion of England by, i. 50.
LLOYD, harsh conviction of, for pub-
lishing a pasquinade on imprison-
ment for debt, iii. 49.
LOLLARDS, persecution of the people
called, i. 323.
LONDON, city of, Quo Warranto
case to vitiate charter of, ii. 65-
69.
LONG CHAMP, William, Chief Jus-
ticiar and Chancellor, i. 37. — See
Lives of the Chancellors, i. 105.
LORDS, House of, oil the jurisdiction
of, by Sir M. Hale, i. 581—
manners of, in 1775, ii. 497 —
scene in, on death of Lord Chat-
ham, 505 — at No Popery Pdots,
519.
390
INDEX.
LOVAT.
LOVAT, Lord, impeachment of, ii.
251 — trial and conviction, 361.
LOVE, Christopher, trial and execu-
tion of, under Cromwell, i. 523-
525.
Luci, R. de, Chief Justiciar, i. 17 —
the Constitutions of Clarendon se-
cured by the noble exertions of,
18.
LUNARDI'S voyages in his balloon,
effect produced by, in Scotland, iii.
258.
LUTWYCHE, Sir Edward, Justice of
the Common Pleas, very incom-
petent as a Judge, ii. 93 — 'removed
at the Revolution, 117.
LYNDHURST, Lord, continued a Ser-
jeant after his appointment as
Solicitor-General, i. 212— Attor-
ney-General and Chief Justice of
Chester, 268 — luminous energy of,
as counsel for Dr. James Watson,
iii. 221 — subsequent promotion,
221 — character and legal qualifi-
cations of, sketched by Lord
Tenterden, 296 — appointed Lord
Chancellor, with a Peerage, 314.
LYSTER, Sir Richard, appointed
Chief Justice of King's Bench, by
Henry VIII., in 1546, i. 175,
178.
LYTTELTON, Lord, History of the
Reign of Henry II. by, i. 31, 35.
M.
MACAULAY, Right Hon. T. B., re-
marks by, on the trial of Lord Grey
de Werke, ii. 41 — on the charac-
ter of the Judges selected by
James II., 76, 86 — description
by, of Littlecote Manor-house,
i. 227.
MACCLESFIELD, Lord, appointed
Chief Justice of England against
the wishes of Queen Anne, ii.
179 — made Lord Chancellor by
George I., 180 — an unpolished
yet forcible parliamentary speaker,
563 — thoughts as to the profes-
sion of attorneys, iii. 4. — See
Lives of the Chancellors, iv. 501.
MANSFIELD.
MACDONALD, Chief Baron of the
Exchequer, facetious anecdote of,
i. 508.
MACGROWTHER, Alexander, trial of,
for treason, ii. 223.
MACKINTOSH, Sir James, remarks
on a speech of Lord Holland in
1811 by, iii. 205.
MACMAMUS v. CRICKET, doctrine
established in, repudiated in the
French Law Courts, iii. 236.
MADDAN, Rev. M., epigram by, on
Lord Mansfield, ii. 547.
MADDOX, History of Exchequer by,
quotations from, i. 3, 18, 22, 28,
MAGNA Charta, Commentary on,
by Lord Coke, i. 341 — Cromwell's
avowed contempt for, 433 — allu-
sion to, by Kelynge, Chief Jus-
tice, 509.
MAHON, Lord, remarks by, in His-
tory of England, on the prosecu-
tion of William Owen, ii. 255 —
on the exile of Lord Bolingbroke,
270 — on the supposed confound-
ing by Lord Mansfield of legal
and equitable jurisdiction, 440.
MALCOLM, King of Scotland, homage
by, to William Rufus, i. 14.
MALLET, Mr. Justice, amusing de-
cision of, that Charles the First
was not executed in his own reign,
but in that of his son, i. 504.
MALMESBURY, William of, History
by, i. 15.
MAN, Isle of, debate upon the claim
to compensation by the Athol
family for rights in, iii. 173.
MANKIND, on the Origin of, a treatise
by Sir M. Hale, i. 577, 583.
MANCHESTER, Edward Earl of, a
distinguished senator and soldier
during the Civil Wars, contri-
butes much to the restoration of
the Monarchy, i. 361.
MANSFIELD, Sir James, Chief Jus-
tice of Common Pleas, altercation
of, with Lord Kenyon in the
House of Commons, iii. 18 — re-
fusal of the Great Seal by, in
1806, iii. 183.
INDEX.
391
MAKSFIELD.
MANSFIELD, Earl of, his illustrious
descent, ii. 304 — education at
Perth, 308 — his ride on a pony
from Scotland to London, 313 —
at Westminster School, 315 — at
Oxford, 318 — intimacy with Lord
Foley, 320 — a member of Lin-
coln's Inn, 320 — drinks cham-
pagne with the wits, 329 — inti-
macy with Pope, 334, 340, 351—
early career at the bar, 333 —
Letters on Ancient and Modern
History by, 334 — crossed in love,
339 — cured by professional suc-
cess, 341 — his marriage, 345 —
becomes Solicitor-General, 346 —
brilliant success in the House of
Commons, 353 — prosecutes the
rebel Lords, 359 — charge of having
drank the Pretender's health, 370
— attack upon for being a Jaco-
bite, 375 — his celebrated vindi-
cation of our naval rights, 376 —
his private life, 377 — patronizes
Blackstone, 378 — refuses to be
Prime Minister, 380 — made At-
torney - General, 381 — declines
to be Master of the Rolls, 382—
becomes Chief Justice of King's
Bench, 388 — his unparalleled as-
cendency in Westminster Hall,
395 — reforms of procedure in-
troduced by, 398 — those con-
templated, 402 — his treatment of
the law of insurance, 405 — bills
of exchange, 407 — right to freight,
409 — of "puffers" at auctions,
409 — his colonial law, 410 — his
decision on Eansom Bills, 413 —
on rights of British subjects in
distant parts of the world, 414 —
on right to wreck, 417 — on a
slave's right to freedom, 418 —
on the legality of pressing sea-
men, 419 — on wagers, 420 — ob-
loquy incurred by the direction to
the jury in the action of Lord
Grosvenor v. Duke of Cumberland,
425 — decision on literary pro-
per ty, 426 — on law of evidence, 429
— in Perrin v. Blake, 430 — charges
of Junius against, 437, 481, 490
— his real love for common law
modes of proceeding, 442 — his
merits as a criminal Judge, 443 —
MANSFIELD.
and in deciding Scotch appeals,
444 — maiden speech in House
of Lords, 447 — refuses the Great
Seal a second time, 450 — his con-
nexion with Lord Bute, 456 —
differences between them, 459 —
reverses the outlawry against
Wilkes, 463 — retires from the
Cabinet, 466 — refuses to be Chan-
cellor the third time, 469 — attack
on, by Lord Chatham, 471 — his
speech against Bill to reverse the
decision of the Commons in the
Middlesex Case, 475 — his conduct
on the trial of Ilex v. Almon and
others, 477 — first letter of Junius
to, 481 — his defence of his con-
duct in Parliament, 484 — again
attacked by Junius, 490 — his visit
to Paris, 494 — speech by, for
prosecution of the American war,
496 — created an Earl, 501 — pre-
sides at the trial of Home Tooke
for libel, 503 — his conduct at the
death of Lord Chatham, 506—
his love of religious toleration,
511 — decisions in support of that
principle, 513 — great courage dis-
played by, in the No Popery
Riots, 520- — house destroyed by
the mob, 525 — speech justifying
employment of the military to
quell the riots, 527 — his exposi-
tion of the law of high treason on
the trial of Lord George Gordon,
532 — his last speech in Parlia-
ment, 538 — his decision as to the
rights of juries in cases of libel,
540 — inability to sit in court, 549
— resigns his office, 550 — address
from the bar, 551 — his mode of
life in retirement, 552 — opinion
of, on the introduction of jury-
trial in civil cases in Scotland,
.553 — recollections of, by his
grand-nephew, 555 — amusements
of, 555 — care of his fortune, 556
— abstains from an opinion on the
Regency question, 557 — views on
the French Revolution, 558 —
continuing powers of memory,
559— last illness of, 560— death,
funeral, will, 561 — position of,
among lawyers of the eighteenth
century, 562 — felicity of life to
392
INDEX.
MARKIIAM.
barristers practising under, 564
— solution of the charge that he
knew no law, 565 — sermon writ-
ten by, and preached by a bishop,
566 — demeanour of, in society,
568— facetiae, 569-571 — advice to
a colonial judge, 572 — position of,
in the public eye, 573 — industry
and temperance of, 574 — defects
and faults, 576 — want of original
genius and moral courage, warmth
of affection, 577 — public conduct
defended, 578 — lampoon on, by
Willes, Chief Justice, 579— cha-
racter of, by Smollett, 579 — by
other contemporaries : Lord Mon-
boddo, 580 — Bishop Kurd, Bishop
Newton, 581 — imitations of the
manner of his speaking, portraits
of, 583 — observations respect-
ing the biography of, 583 — criti-
cisms on, by Lord Tenterden, iii.
296.
MARKHAM, Sir John, parentage,
professional progress, i. 141 — ap-
pointed Chief Justice of King's
Bench, 142 — his impartiality and
integrity, 143, 150 — dismissed,
burial-place, character, 144, 150
— remark of, in Lady Belknappe's
Case, 114 — remark by, to Ed-
ward IV., 271.
MARRIAGE, memorable Act intro-
duced by Lord Harchvicke in 1753
to prevent clandestine, ii. 248 —
defects in, since cured, 249 — claim
by executors of a lady to recover
damages for a breach of promise
of, refused, iii. 163 — case re-
ported in Dyer illustrating the
custom in former times of uniting
children in, i. 185.
MARLBOROUGH, Sarah, Duchess of,
selects the Lord Chancellor, ii.
166 — her retainer to Lord Mans-
field, 343 — her interview with
him at chambers, 344.
MARVEILLES, Mons. de, ambassador
of Francis I. at Milan, beheaded
jure yentium for conspiracy
against the Prince to whom he
was accredited, i. 199.
MASQUE of Beauty, by Ben Jonson,
played before the King and Queen
MILTON.
at Theobald's and Whitehall in
1607, i. 254.
MASS, statutes against the celebra-
tion of, prosecution under, before
Lord Mansfield, ii. 514.
MATHEWS, Charles, celebrated
comedian, clever imitations of
Lord Ellenborough by, iii. 243 — •
personal interview of, with George
IV., 245.
MAUNSELL, John, Chief Justiciar
and Chancellor, i. 55. — See Lives
of the Chancellors, i. c. vii.
MAYNARD, Serjeant, atrocious con-
duct of, on the trial of Colonel
Penruddock, noticed in ' Hudi-
bras,' i. 438— elected to the .Con-
vention Parliament, ii. 130. — See
Lives of the Chancellors, iv. 1.
MEADE, Justice of King's Bench,
judgment of, on the marriage of
minors, i. 186.
MEDITATIONS, by Sir Matthew Hale,
published in 1683, i. 566, 571.
MELVILLE, Lord, impeachment and
acquittal of, in 1806, iii. 192.
MERTON, statute of, decision in Doe
dem. Barthwistle v. Vardill upon,
respecting illegitimate children,
iii. 310.
MIDDLESEX, Earl of, impeachment
and conviction of, for malpractices,
i. 321.
MIDLAND Circuit always travelled
by Chief Justice Dyer, i. 190 —
selected by the senior Judges as
causing the least amount of labour,
iii. 333.
MILITARY, the legality of their em-
ployment to quell civil disturb-
ances maintained, ii. 174.
MILLENARIANS, and other enthu-
siasts, extravagant plans of, in
1655, i. 531.
MILTON, John, panegyric by, on
Bradshaw, i. 489 — sonnet by, ii.
369 — quotations from works of,
iii. 75.
MILTON, Lord, a Scotch Judge,
letter to, from Lord Mansfield, ii.
349, 385,
INDEX.
393
MILTON, Sir C., brother of the poet,
an incompetent man, appointed a
Baron of the Exchequer in 1 6b6,
ii. 87 — dismissed before 1688,
117.
MIDDLESEX, county of, Bill intro-
duced by Lord Chatham to re-
verse the decision of the House
of Commons respecting the elec-
tion of Colonel Luttrell for, ii.
472 — angry debates upon, 473-
475.
MILLER, the publisher,, memorable
prosecution of, for reprinting the
letter of Junius to the King, ii.
480.
MINORS, case reported in Dyer illus-
trating the custom of marriage
between, i. 185.
MITCHELL, Sir Francis, impeach-
ment and conviction of, for ex^
tortion, i. 366.
MITCHELL, conviction ot, under the
statute of 11 Vic. c. 12, for an
attack on the Queen, ii. 147.
MoiRA, Lord, bill introduced by, for
abolishing imprisonment for debt,
iii. 42.
MONTESQUIEU, President, excellent
work by, on the Decline of the
Roman Empire, ii. 335 — admira-
tion and remark of, on Lord
Mansfield's celebrated memorial
to the Prussian Minister in vin-
dication of the British naval
rights, 377.
MINISTRY of the Cabal, ii. 32, 152 ;
iii. 61— Lord Godolphin, L65, 179
—Sir Robert Walpole, 188, 243,
267 — Duke of Newcastle, 256,
346— Duke of Devonshire, 272 —
Duke of Newcastle and Mr. Pitt,
273 — Lord Bute, 456 — George
Grcnville, 460— Lord Chatham,
468— Duke of Grafton, 469—
Marquis of Rockingham, 497 ; iii.
17_Earl of Shelburne, ii. 498;
iii. 20— Lord North, ii. 533—
Coalition, 534; iii. 19— William
Pitt, ii. 537 ; iii. 22— Lord Sid-
mouth, iii. 182 — William Pitt,
183—" All the Talents," 184—
MONTAGUE.
Lord Liverpool, 195 — Mr. Can-
ning, 314 — Lord John Russell, 1.
MOMPESSON, Sir Giles, impeachment
of, by the Commons for oppres-
sions under royal grants, i. 359,
366.
MONARCHY asserted, a pamphlet by
Glyn, Chief Justice, i. 438.
MONASTERIES founded in Scotland
by Bruce, i. 65.
MONBODDO, Lord, character by, ot
Lord Mansfield, ii. 580.
MONCRIEFF Case, appeal in the, ii.
337.
MONKS of Canterbury, immense
wealth collected by, at the shrine
of A'Becket, i. 31.
MONMOUTH, grand court of the Ox-
ford Circuit held at, iii. 278—
Duke of, attainder and execution
of, ii. 244.
MONODY on the death of Lord
Ellenborough by Lady Colchester,
iii. 247.
MONTAGU, Sir Henry, parentage, i.
348 — legal education and election
to Parliament, 349 — chosen Re-
corder of London, 350 — conducts
the prosecution of the Earl and
Countess of Somerset, 351 — made
Chief Justice of the King's Bench,
353 — orders the execution of Sir
W. Raleigh, 357 — resigns office
and created a peer, 358 — charac-
ter, 360— descendants, 361.
MONTAGUE, Baron of Exchequer,
opinion on the power of George I.
respecting the marriage and edu-
cation of his grand -children, ii.
187.
MONTAGUE, Sir Edward, parentage,
maiden speech, and its results, i.
170 — great feast when called Ser-
jeant, 171 — appointed Chief Jus-
tice of King's Bench, 172 — extra
judicial decisions, 173 — Chief
Justice of the Common Pleas, 174
— makes the will of Edward IV.,
176 — deserts Lady Jane Grey,
removed from office by Queen
Mary, death, 177 — epitaph, 178.
MONTAGUE, Sir William, Chief
394
INDEX.
MONTE AGLE.
Baron, dismissal of, for refusing
to support the King's dispensing
power, ii. 86.
MONTEAGLE, Lord, mysterious letter
to, respecting Gunpowder Plot, i.
263.
MONTFORT, Simon de, rebellious
proceedings and character of, i.
60. — See Lives of the Chancellors,
i. 151.
MOOTS in the Inns of Court, i. 160,
242— disuse of, iii. 100.
MORE, Sir T., History by, of Richard
III., i. 150, 170 — chairman of the
committee to draw up the articles
against Wolsey, 163 — Speaker of
House of Commons, 170 — trial
and most unwarrantable execu-
tion, 167. — See Lives of the Chan-
cellors, i. 503.
MORRICE, Secretary, attack by, on
the " Comprehension Bill," i.
547.
MORRIS, Mr., verses by, ii. 577.
MORRIS, Captain, reasons for drink-
ing stated by, ii. 577.
MORRIS, Edward, Master in Chan-
cery, anecdote related by, iii. 87.
MOSTYN, Governor, damages reco-
vered against for cruelty in Mi-
norca, ii. 414.
MOUNCEY, Captain, action against,
for negligent management of a
ship, iii. 162.
MUCEGROS, E. de, a Chief Justiciar
to King John, i. 43.
MURDER, appeal of, abolished by
statute 59 Geo. III., c. 46, ii. 207 ;
iii. 171 — formSjOf proceeding in,
i. 27.
MURRAY, Lord, a Judge of Session,
personal recollections of his kins-
man Lord Mansfield, ii. 555.
N.
NAPIER family, origin of the name
of the, i. 57.
NAPOLEON, negotiations for a peace
with, when First Consul, in 1802,
iii. 146 — trial of Peltier for libel
NORTH.
on, 180 — hostilities with, recom-
menced, 182.
NAVIGATION Law«, events which
occasioned the, i. 473.
NAVY, the objectionable measure for
better manning, brought in and
abandoned in 1741, ii. 242.
NAYLOR, the Quaker, commitment
of, by the Parliament, i. 441.
NEGOTIABLE securities, right of the
holder of, for value, to recover,
unless fraud on his part esta-
blished, iii. 311.
NELSON, Lord, sarcastically snubbed
by Lord Ellenborough when a
witness on the trial of Colonel
Despard, iii. 177.
NEVILLE, Sir E., Baron of the Ex-
chequer, dismissed for refusing to
support the King's dispensing
power in 1680, ii. 86.
NEWGATE broken into and the pri-
soners liberated by the No Popery
mob, ii. 522.
NEWDIGATE, Sir Richard, parentage,
i. 443 — becomes a Judge under
Cromwell, 444 — dismissed for his
independent conduct on the trial
of Colonel Halsey, 445 — restored
by Monk, superseded at the Re-
storation, 446 — life saved by
Colonel Halsey, subsequent career
and epitaph, 446.
NISI Prius, proceedings at, improved
and settled by Lord Mansfield, ii.
401.
NOBLE'S Memoirs of the Cromwell
family, extracts from, i. 448,
475.
NORFOLK, Duke of, accused of trea-
son, i. 175 — his narrow escape
from execution, 176.
NORMANDY, Courts for the adminis-
tration of justice established in,
Erevious to the conquest of Eng-
ind, i. 2 — civilization introduced
into England from, 62,
NORTH, Roger, mistake of, about
Chief Justice Scroggs, i. 5 — writ-
ings, 540, 544, 551 — censure of,
on Sir M. Hale, 555 — extracts
from Life of Lord Guildford by,
INDEX.
395
NORTH.
387, 540, 544, 551, 555, 558,
582 ; ii. 33, 42, 47, 63, 66, 69,
73, 96.
NORTH, Lord, war with America
carried on by, ii. 509 — Coalition
Ministry formed by, 534 — witty
remark of, iii. 22.
NORTHEY, Sir Edward, Attorney-
General, ii. 238.
NORTHINGTON, Earl of, Attorney-
General in 1756, ii. 274 — amusing
interview of with Chief Justice
Willes on announcing his accept-
ance of office as Lord Keeper, 275.
— See Lives of the Chancellors, v.
174.
NORTHUMBERLAND, Earl of, inquiry
respecting his death, i. 214.
NORWICH, Earl of, trial of, i. 484 —
life of saved by the casting vote
of the Speaker of the House of
Commons, 485.
NOTTINGHAM, Lord, the father of
equity, i. 552 — his character of
Sir Matthew Hale, 570. — See
Lives of the Chancellors, iii. 378.
NOY, projects ship-money as a
scheme for raising money, i. 311,
375, 414 — made Attorney-Gene-
ral, 415 — death, 416 — deep learn-
ing of, 519.
0.
OAK, Royal, order of Knighthood
projected by Charles II., ii. 2.
O'CoNNELL, Daniel, M.P., remark
by, that an indispensable qualifi-
cation of a Judge is that he must
be "a downright tradesman," ii.
169.
O'CONNOR, Arthur, incidents on the
memorable trial of, at Maidstone,
iii. 138, 145.
ODO, first Chief Justiciar, a Norman
by birth, arrival in England, i. 4
— appointment, 5 — trials before,
6 — quarrels with the King, 7 —
arrested and liberated, 8 — con-
spires against Eufus, 9 — banished,
10 — dies indestitution at Palermo,
. 11.
OLD Bailey sittings for trial of
PALEY.
criminal charges formerly held in
the evening as well as the morn-
ing, ii. 450 — deaths of Judges oc-
casioned by gaol-fever when at-
tending, 230.
ONEBY, Major, trial and conviction
of, for murder by duelling in
1725, ii. 199— suicide of, 203.
ONSLOW, Speaker, remarks by, on
the judicial qualifications of Lord
Holt, ii. 169.
ORATORY, Parliamentary, of the last
century, ii. 562, 575.
ORDERICUS Vitalis, early History of
England by, i. 10, 16.
ORDINANCE, self-denying, brought
in by Cromwell, 1642, i. 436,
466.
ORIGINES Juridicales by Dugdale,
extracts from, i. 171, 194, 380,
541, 573.
OVERBURY, Sir Thomas, murder of,
i. 279 — circumstances relating to
the murder of, 351, 562.
OWEN, Sir John, trial and conviction
of, for treason in 1649, i. 484.
OWEN, William, memorable trial of,
for publishing a pamphlet severely
reflecting on the House of Com-
mons, ii. 227, 253.
OXFORD Circuit, anecdotes of, i. 479 ;
ii. 281, 287, 445 ; iii. 272 — coun-
sel on the, 88 — led several years
by Lord Campbell in a bomba-
zeen gown, 275 — incidents upon,
273 — grand circuit court on, 278
— conveyance of letters on, in
1798, 280.
OXFORD, Earldom of, claim to,
allowed by House of Lords, i.
373— new creation of, by Queen
Anne, 374.
OXFORD City, the famous " Provi-
sions " agreed to in, i. 373 — scene
in the High Street at, in 1753,
described by Lord Chatham, ii.
376.
P.
PALEY, Archdeacon, tutor of Lord
Ellenborough, iii. 143.
396
INDEX.
PALGRAVE.
PALGRAVE, Sir F., introduction by,
to the Rolls of the Curia Regis, i.
37, 40.
PALMER, Sir Jeffrey, practised as a
chamber counsel during the Com-
monwealth, addicting himself to
conveyancing, i. 493.
PANTALEON, Sa Don, a Portuguese,
murder committed by, i. 427.
PARIS, Matthew, History by, i. 45,
50, 55.
PARK, Sir James Allan, Justice of
the Common Pleas, a native of
Scotland, intimate with Lord
Mansfield, ii. 304-556— a leader
on the Northern Circuit, iii. 141
— anecdotes respecting when at
the bar, 238 — appointed a Judge,
283 — excellent work by on Marine
Assurances, ii. 405, 556.
PARKER, Sir Thomas, reasons for his
appointment as Chief Justice of
England, ii. 179.— SeeMacdesfield.
PARKER, Chief Baron, vigorous old
age of, ii. 570.
PARKINSON v. LEE, decision in, that
there is no implied warranty from
high price of goods, iii. 158.
PARLIAMENT, cheering in, manner
of, previous to the eighteenth cen-
tury, i. 83 — consulted by the
King on questions of foreign and
domestic policy, 89 — held at
Shrewsbury condemns the Prince
of Wales, 74 — appeals in tem-
pore Edward I., 82 — Judges sum-
moned to, by Edward II., 85 —
supplies sought from by, and
refused to Edward III., 89 —
statutes passed by, in 1353, 92—
opinion of the Judges on the pri-
vileges of, in 1387, 98 — result of
elections for the, in 1389, 102—
proceedings by, against the Judges
for treason, 116 — meeting of, in
1399, to depose Richard II. and
confirm the crown to Henry IV.,
119 — succession to the throne
debated in, 146 — meeting of, in
1485, 157 — articles of impeach-
ment by, against Wolsey, 163 —
trial of Anne Boleyn before, 168
— mode adopted by Henry VI II.
PARLIAMENT.
for obtaining sup] dies from, 171
— Bills of Attainder passed by,
158, 174 — speech of Speaker
Wray to Queen Elizabeth on the
opening of, in 1571, 201 — pro-
ceedings in, during the Session of
1581, 212-214— Coke's speech to
the Queen as Speaker, in 1593,
248 — address by, against the arbi-
trary proceedings of James I., 273
— description of the members of,
in 1621, 308 — abuse of monopo-
lies exposed in, 310, 350 — im-
peachment of Bacon by, 311 —
discussions in, respecting the
marriage of Charles .1. and the
\var with Palatinate, 314 — forbid
by the King to discuss matters of
State, 315 — Protestation entered
in Journals of, 316 — torn out by
the King, 317 — abrupt dissolu-
tion of, in 1625, 323 — attempt to
exclude Sir E. Coke from, 324 —
attempt by Charles I. to intimi-
date, 325 — Petition of Right de-
bated and passed by, 331 — sudden
prorogation of, in 1628, 332 —
dispute between the Houses of,
respecting their separate juris-
diction, 366, 389— speech of Sir
R. Crewe to James I. in the Ses-
sion of 1614, 372— Oxford Peerage
Case decided in, 374 — opinion of
Chief Justice Hyde on the privi-
leges of, 385 — impeachment of
Judges by, in 1641, 404 — privi-
leges of, debated in the Courts of
Law and Star Chamber, 412 —
privileges of, decided by Rolle,
426 — conduct of members in the
Long, 457-464 — Commissioners
appointed by, to treat at Uxbridge,
466 — Republican Judges allowed
to sit in, 474 — meeting of the
Barebones, 475 — divisions in, re-
specting the execution of the
Royalist Peers, 485 — proceedings
in, against Chief Justice Kelynge,
510 — right of, to commit for a
breach of privilege, recognised by
the Judges in 1676, ii. 2 — pro-
ceedings by, against Scroggs, 19
— contest between both Houses
of, respecting the committal of
Pemberton, 30 — improper com-«
INDEX.
397
PABUAMKNTAKY.
mittal of a Judge by, for a deci-
sion in a court of law, 56 — pro-
ceedings in, respecting the In-
demnity Act, 113 — abrupt dis-
solution of, for proceeding with
the impeachment of Lord Danby,
124 — conference between both
Houses of, on the Abdication and
Desertion Question, 131 — pro-
ceedings in the Upper House of,
in the case of Rex v. Knollys, 148
— unprecedented state of antago-
nism between both Houses of,
156 — privilege of, checked by 3
Vic. c. ix., 166— Septennial Bill
debated in, 193, 269— power of,
to punish in a summary manner,
discussed, 241 — Act passed in, for
attainting the sons of the Pre-
tender, 243 — Marriage Bill de-
bated in, 249 — Regency Bill
passed in 1751, 368 — members
of, not privileged to publish
speeches delivered in, with a view
to libel an individual, iii. 64 —
impeachment of Warren Hastings
by, 109 — Corporation and Test
Acts repealed by, 318 — Catholic
Emancipation passed by, 320 —
constitutional views of Lord
Thurlow on the privilege of, to
print and publish their proceed-
ings, 63 — opinions of Lord Ten-
terden on the same right, 328.
PARLIAMENTARY Privilege, opinions
of the Judges on in 1387, i. 99 —
breach of, alteration in returns to
the Habeas Corpus introduced by
Lord Campbell in the case of Han-
sard v. Stockdale, ii. 164 — right of
both Houses to print and publish
their proceedings recognised by
Lord Kenyon, iii. 62 — to imprison
for contempt, 166 — views of Lord
Tenterden respecting, 328.
PARNYNG, Sir R., Chief Justice of
King's Bench and Chancellor to
Edward III., a man of great learn-
ing and ability, i. 88. — See Lives
of the Lord Chancellors, i. c. xiv.
PARTNERSHIP, dissolution of, deci-
sion respecting by Lord Kenyon
where one of the firm is lunatic, '
iii. 33.
PENENDEN.
PATESHULLE, Hugh de, an impartial
Judge, Chief Justiciar, i. 55.
PATSHULL, Simon de, Chief Jus-
ticiar, i. 43.
PAUL, Emperor of Russia, libel on
in the ' Courier,' iii. 56.
PAUL, Dr., Advocate- General, signs
the masterly answer to the Prus-
sian Minister in 1753, ii. 377.
PAULET, Sir Amyas, puts Wolsey in
the stocks, i. 160.
PEACHAM, shameful prosecution of
upon alleged high treason, i. 278.
PEERAGE, reasons for conferring the
dignity of the, on a Chief Justice
of "England, ii. 256 ; iii. 44.
PELHAM, Mr., Prime Minister, sud-
den death of, ii. 229, 255.
PELTIER, prosecution of, for a libel
on Napoleon, iii. 180.
PEMBERTON, Sir Fr., his chequered
career, ii. 24 — origin and educa-
tion, 25 — his profligate mode of
life, 26 — committed to the Fleet,
reformation, 27 — discharge from
prison, 29 — his success at the bar,
30 — contest respecting him in
Parliament, 31 — appointed a Jus-
tice of the King's Bench, 32 —
displaced, returns to the bar, 33 —
made Chief Justice of England,
34 — his conduct on State trials,
36 — consents to be Chief Justice
of the Common Pleas, his cour-
teous behaviour to Lord Russell,
44 — dismissed for such modera-
tion, 46 — his decisions in civil
cases, 47 — commences practice at
the bar a third time, 48, 57 —
counsel for the Bishops, 49, 107 —
not promoted after the Revolution,
53 — committal to Newgate for a
breach of Parliamentary privilege,
56 — death and epitaph, 57 — vio-
lent altercation with Sir E. Sann-
ders in Lord Danby's case, 64 — •
resigns his office, 67.
PENAL code, the severity of a, as-
serted as necessary by Lord Ellen-
borough, iii. 234.
PENENDEN Heath, earliest recorded
trial held on, i. 6.
C
398
INDEX.
PENRUDDOCK.
PENRUDDOCK, insurrection at Salis-
bury headed by, against Crom-
well, i. 431 — his trial and execu-
tion, 438.
PEPYS, Samuel, extracts from the
Diary of, i. 361 ; iii. 254.
PEPYS, an eminent lawyer, reluctant
consent of to act as a Judge under
Cromwell, i. 444.
PERCEVAL, Eight Hon. S., corre-
spondence of with Lord Ellen-
borough, iii. 189-192.
PERRIN v. BLAKE, decision of the
Court of King's Bench in, re-
versed, i. 245 n. ; ii. 430.
PERRY, Mr., editor of the ' Morning-
Chronicle,' ex-officio information
against, iii. 50, 54, 196.
PERYAM, Sir William, Chief Baron
of the Exchequer in the reign of
Elizabeth, i. 233.
PETERBOROUGH Cathedral, its de-
struction prevented by Oliver St.
John, i. 474.
PETITION of Eight, i. 368— framed
and carried by Coke, 239, 519.
PHEASANT, Peter, a Judge under
Cromwell, i. 470.
PIGOT, Lord, trial of Stratton and
others for deposing, iii. 13.
PILLORY, punishment of the, abo-
lished in 1814, iii. 220.
PINE, Mr., acquittal of, on a charge
of treason, i. 391.
Pio NONO, creation by, of the Arch-
bishopric of Westminster, and par-
tition of all England into Eoman
Catholic sees, iii. 177.
PIRACY of books, no action lies for
publishing copies of obscene pub-
lications, iii. 301.
PITT, Eight Hon. W., action by for
a libel in the ' Morning Herald,' ii.
545 — speeches by, iii. 21 — retire-
ment, 143 — resumes the office of
PrimeMinister,182— deathof, 183.
PIZARRO, famous melodrame of,
anecdote of Lord Kenyon at the
performance of, iii. 7.
PLAGUE in London, numbers who
died of, i. 507.
POPHAM.
PLEADER'S Guide, by Anstey, anec-
dotes respecting, iii. 271.
PLEADING, colour in, defined, i. 513.
PLOMER, Sir Thomas, a counsel for
Warren Hastings, iii. 112, 131.
PLUMPTON, Gilbert de, false accusa-
tions brought against, i. 24-25.
PLUNKET, Lord, reasons for his
failure as a debater in the House
of Lords, ii. 563 — appointed Chief
Justice of Common Pleas in Ire-
land, with an English Peerage, iii.
314.
POEMS by Lord Tenterden, iii. 279,
280, 282, 289, 343, 344, 345.
POLICIES of Insurance, decision of
Chief Justice Wilmot, on the
proper construction of, ii. 294 —
on the ships of enemies forbidden
by statute and void at common
law, 247, 366.
POLLEXFEN, Sir Henry, counsel for
the Bishops, ii. 48 — argues the
City quo warranto case, 68 —
appointed Chief Justice of the
Common Pleas in 1688, 117.
POMFRET, Countess of, related to
Judge Jeffreys, insulted in the
West of England, ii. 78.
POPE, Alexander, friendship and in-
timacy with Lord Mansfield, ii.
329 — verses by, addressed to Lord
Mansfield, 340, 351 — appoints
Lord Mansfield one of his execu-
tors, with a bequest, 352.
POPERY, monster meetings to peti-
tion Parliament against, in 1780,
ii. 518.
POPHAM, Sir John, birth, education,
i. 209— youthful profligacy, 210
— reformation and professional pro-
gress, 211 — Speaker of the House
of Commons, 212 — Attorney-Ge-
neral, 214 — prosecutes Secretary
Davison, 217 — made Chief Jus-
tice of England, 218 — gallant con-
duct in Essex's rebellion, 219 —
his conduct on the trial of Essex
and his accomplices, 220 — on the
trial of Ealeigh, 222 — on the trial
of Guy Fawkes and his associates,
225— his death, 226— legends re-
specting the manner in which he
INDEX.
399
PORCHESTEE.
acquired Littlecote, 227 — his Re-
ports, wealth, 229-— his descend-
ants, 230.
PORCHESTEE, Lord, argument by,
that the exercise of the lloyal
authority, during the King's ill-
ness, should be restored to the
Prince of Wales, iii. 38.
PORSON, Professor, anecdotes of, at
Cider Cellar, ii. 120 ; iii. 271.
PORTMAN, Sir William, appointed
Chief Justice of King's Bench,
June, 1554, i. 178.
POSTNATI, case of the, i. 236-269.
PORTEOUS, Captain, bill for disfran-
chising the city of Edinburgh, for
alleged misconduct of the inha-
bitants for the murder of, rejected,
ii. 338.
PORTSMOUTH, Duchess of, a witness
for Fitzharris, tried for being ac-
cessory to the Popish plot, ii. 36.
POWELL, Sir John, Justice of the
King's Bench, his honest conduct
in the trial of the Bishops, ii. 106
— reprobates the doctrines of the
Solicitor- General, 108 — opinion in
favour of the Bishops, 110 — dis-
missed from office, 53, 112 — exa-
mined by the House of Commons
in support of the Indemnity Act,
114 — appointed a Justice of the
Common Pleas in 1688, 117— his
judgment in the Aylesbury case,
157.
POWERS, admirable work on, by Lord
St. Leonards, iii. 275.
POWYS, Sir Littleton, made Justice
of King's Bench in the reign of
Queen Anne, ii. 182.
POWYS, Sir Thomas, Attorney-Ge-
neral, ii. 50 — Judge of the King's
Bench, superseded on the accession
of George I., as friendly to the
Pretender, 182.
PRATT, Sir C., acts as counsel for
Owen in the foolish prosecution
of, ii. 227 — sworn in Chief Jus-
tice of the Common Pleas, 461. —
See Camden.
PRATT, Sir John, his origin and pro-
gress at the bar, ii. 181 — made a
Judge of the King's Bench, 182
PROTESTANT.
— Chief Justice of England, 183
— his conduct in Dr. Bentley's
case, 184 — on the trial of Layer,
186 — opinion on the power of the
King respecting the marriage of
his children, 187 — death, 188.
PRESBYTERIANS, English, in the
eighteenth century, ii. 235.
PRESCRIPTION and Tithes, measures
passed by Lord Tenterden re-
specting, iii. 325.
PRESSING seamen, legality of, for the
British navy, ii. 419.
PRESTON, Lord, his trial for high
treason, ii. 143.
PRESTONGRANGE, Lord, a Judge of
Scotland, unsuccessful applica-
tions by, to Lord Mansfield, for
his interest in obtaining a higher
position, ii. 452.
PROPERTY, forfeiture of, the punish-
ment inflicted by all nations for
attempts to overturn an existing
government, ii. 246.
PRETENDER, The, scheme of Boling-
broke to bring in, ii. 193 — pro-
ceedings of the Highland Chiefs
on the landing of, 251, 358 —
Act for attainting the sons of,
243— landing of at Moidart, 358.
PRESTON, Mr., the eminent convey-
ancer, facetious retort of Lord
Ellenborough to, iii. 237.
PRICE, Benjamin, Clerk of Assize on
the Oxford circuit, early patron of
Lord Tenterden, iii. 272.
PRICE, Robert, Baron of the Ex-
chequer, judgment of in the Ayles-
bury case, ii. 160.
PRIDEAUX, Edward, large sum paid
by to Judge Jeffreys for his ran-
som, ii. 77.
PRISONERS, anxiety of to be tried
before a Judge of the superior
Courts, i. 479.
PRIVILEGE. — See Parliament.
PRONUNCIATION of English, want of
system in, ii. 319.
PROPHETS, a band of fanatics so
called in the time of Lord Holt, ii.
173.
PROTESTANT Association, monster
400
INDEX.
\
PttUDHOE.
petition from to the House of
Commons, ii. 517.
PRUDHOE Castle, obstinate defence
of against the Scots, i. 19.
PRUSSIA, King of, attempt by to
remodel the law of nations in refe-
rence to the right of belligerents
seizing upon the ocean the goods
of enemies in neutral ships, ii.
376.
PRYNNE, prosecution of for publish-
ing Histrio-mastix, i. 394.
PURITANS, their classical acquire-
ments in the seventeenth century,
i. 513.
PUSAR, H., Bishop of Durham, Chief
Justiciar by purchase, i. 35— his
licentious youth, meritorious mid-
dle-age, blindness, 36 — deposed,
death, ib.
PYE, Sir Kobert, committed to the
Tower by the House of Commons,
i. 445.
PYNZANT Estate Case, judgment in,
reversed, ii. 491.
Q.
QUAKERS, marriages of, Lord Bale's
opinion on their validity, i. 557
— laws respecting, ii. 512 — faceti-
ous rebuke of Lord Ellenborough
to, iii. 239.
QUARTERLY Eeview, amusing anec-
dote of Lord Tenterden recorded
in, iii. 339.
QUARTER Sessions, Courts of, causes
which occasioned the creation of,
i. 90 — practice at useful for a
forensic education, iii. 14.
QUEENSBERRY, Duke of, anecdotes
of, ii. 421.
QUESTIONS, leading, the allowance
of, even on cross-examination,
frequently abused, ii. 50.
Quo WARRANTO, memorable suit of,
against the City of London, ii. 41,
43.
B.
RADBY, Richard, convicted and fined
for speaking scandalous words of
Chief Justice Scroggs, ii. 15.
RECEIPT.
" RATTING," crime of political, un-
known during the reign of George
II., ii. 196, 446 ; iii. 144.
RALEIGH, Sir Walter, trial and mon-
strous conviction of, i. 222, 258 —
execution awarded against, 356.
RALPH, Historical Notices by, ii.
145.
RANSOM Bills, legality of, maintained
by Lord Mansfield, ii. 413 — for-
bidden by Act of Parliament, 414.
RAYMOND, Sir Thomas, a Judge of
Common Pleas, and afterwards of
King's Bench, peculiar zeal of in
the Quo Warranto case, i. 35, 109.
RAYMOND, Lord, parentage, ii. 189
— called to the bar, 190 — his con-
duct as counsel in several im-
portant trials, 191 — Solicitor-Ge-
neral, 192 — speech against the
Septennial Act, 193 — Attorney-
General, 194 — a Judge of the
King's Bench, 196— made Chief
Justice of England, and raised to
the Peerage, 197 — his doctrine re-
specting the publisher of obscene
libels, 198 — settles the law re-
specting murder and manslaughter,
199 — his judgment on the law of
libel, 207 — abstinence from po-
litics, 209— death, 210 — monu-
ment and epitaph, 211 — panegyric
upon, 212— legal offices held by,
541.
RAYNARD'S Case, decision of Lord
Coke in, i. 327.
RAYNSFORD, Sir k, his early career,
ii. 1 — a Baron of Exchequer, Judge
of King's Bench, Chief Justice of
King's Bench, 2 — decision in the
privilege case, 3 — removed from
office, death, and character, 4.
RAVENSWORTH, Lord, improper pub-
lication of a private conversation
by, respecting Lord Mansfield and
others, ii. 371.
READINGS in the Inns of Court, i.
242, 281.
REBELLION of 1745, incidents of, ii.
35, 243-46, 357-364.
RECEIPT tax, debate on, iii. 22 —
enforced, — epigram respecting the
origin of, ii. 535.
INDEX.
401
REDESDALE.
REDESDALE, Lord, personal appear-
ance of, iii. 58 — censure by, on
the legal decisions of Lord Mans-
field, ii. 438 — dulness of speeches
in Parliament by, 563.
REDGRAVE, church of, burial-place
of Lord Holt, i. 167 — its manorial
history, 168.
RED-LION Square, once a fashion-
able portion of London, and re-
sidence of the Common Law
Judges, ii. 210.
REEVE, John, trial of, for a libel on
the House of Commons, iii. 53.
REEVES, Sir T., Chief Justice of the
Common Pleas, ii. 206.
REGENCY Bill, debate on the, of
1751, ii. 247, 368— debate on the,
of 1789, iii. 38.
REGISTER, A GENERAL, for Deeds
affecting real property, its esta-
blishment urged, i. 425.
REGRATING and Forestalling, prose-
cutions for, scouted by Lord Holt,
ii. 139 — encouraged by Lord
Kenyon, iii. 77.
REPORTS of decisions in Courts at
Westminster become obsolete by
recent changes, iii. 157.
REPORTS of Lord Coke, containing
good decisions and rulings, i. 289
— wonderful monuments of his
learning and industry, 335 — of
Popham, not of authority, 229 —
of Dyer, Chief Justice, 192 — of
Rolle, Chief Justice, remarkable
for their precision and accuracy,
433 — of Lord Kenyon, inelegant
composition of, iii. 7.
RESIDENCES of Chief Justices : of Sir
Robert de Brus, i. 65— of Lord
Campbell, 65— of Sir E. Coke, 346
—of Sir J. Ley, 368— of Sir R.
Crewe, 380 — of Sir John Bramston,
408— of Sir M. Hale, 575— of Sir
R. Raynsford, ii. 4— of Sir W.
Scroggs, 21 — of Sir Francis Pem-
berton, 57 — of Sir Edmund
Saunders, 72 — of Sir John Holt,
167 — of Lord Raymond, 210— of
Sir William Lee, 229— of Sir
Dudley Ryder, 254, 261— of Sir
John Willes, 275— of Sir Eardley
VOL. III.
RIDER.
Wilmot, 292— of Lord Mansfield,
326, 552, 557— of Lord Kenyon,
iii. 90 — of Lord Ellenborough,
246.
RETAINER, a general, its amount, ii.
343.
REVOLUTION in France, opinions
of Lord Mansfield on, ii. 558 —
Burke's book on, 560.
REVOLUTION of 1688, justified by
exhibition of the abuses which
occasioned it, i. 239 ; ii. 115.
RICHARD Cceur de Lion, adventures
of, i. 32, 35, 36— death of, 41—
claim to the Crown of Scotland
renounced by, 80.
RICHARD II. rebellion at the ac-
cession of, ii. 94 — devoted himself
to De Vere, 96 — deprived of au-
thority by a commission, 97 —
commission violated by, at Not-
tingham, 98 — agrees to receive
deputies from the Barons, 101 —
proceedings in Parliament before,
102— presides at the trial of the
Judges who advised the violation
of the commission, 112 — deposi-
tion of, 115 — imprisoned in the
Tower, 116 — indictment against,
117 — Bolingbroke and Norfolk
banished by, 122 — charges against,
123.
RICHARD III., History of, by Sir
Thomas More, i. 151.
RICHARDSON, Mr. Justice, anecdote
of Lord Tenterden related by, iii.
252.
RICHARDSON, Sir Thomas, com-
pelled to serve as Speaker of the
House of Commons, i. 388 — made
Chief Justice of Common Pleas,
391 — his wife made a Peeress of
Scotland, 392 — made Chief Justice
of England, 393 — his conduct in
the Star Chamber, 392, 394— his
ordinance against wakes and
church-ales, 396 — his death,
jests, character by contemporaries,
397— descendants, 398.
RICHMOND, Duke of, his Bill for
Parliamentary Reform, ii. 519.
RIDER, Cardanus, British Merlin by,
ii. 230.
2D
402
INDEX.
RIGBY.
EIGBY, Eight Hon. Eichard, Pay-
master-General of the Forces, at-
tack by, on Kenyon when At-
torney-General, in the debate
respecting public accountants, iii.
23.
EIGHT, Petition of, i. 368 — debate
on, 330, 332, 412, 519.
EIPON, Earl of, incapacity of, as
Prime Minister, iii. 318.
EOBERTSON, Dr., Life of the Em-
peror Charles V. by, i. 29.
EOCHESTER Castle, siege of, by
William Eufus, i. 10.
EOCKINGHAM, Marquis of, short ad-
ministration of, ii. 534 — death of,
iii. 20.
EODNEY v. Chambers, important de-
cision in, respecting Deeds of Se-
paration, iii. 158.
EOGER, Bishop of Salisbury, Chief
Justiciar, i. 16.
EOGERS, Samuel, extracts from the
Table-talk of, iii. 92, 243.
EOLLE, Henry, parentage, i. 420 —
his excellent Law Digest, 421,
433 — he retires from Parliament
on commencement of the troubles,
422 — becomes a Judge under the
Parliament, 423 — made Chief
Justice of Upper Bench, 424 —
his conduct on the execution of
the King, 425 — his judicial deci-
sions, 426 — in danger of being
hanged, 431 — refusal to try
Eoyalist insurgents, 432 — resig-
nation and death, 433.
EOLLE, John, M.P. for Devon, his
support of the Westminster Scru-
tiny, iii. 30.
EOLLIAD, criticisms on the, a political
work published by the Whigs,
in 1784, extracts from, iii. 29,
37.
EOMAN Civil Law, masterly sketch
of, by Gibbon, ii. 394 — a know-
ledge of, indispensable for a pro-
ficiency in the Common Law
of England, i. 63 ; ii. 281, 299,
327, 337 — study of, encouraged at
Trinity Hall, Cambridge, 281,
299.
RYDER.
EOMILLY, Sir Samuel, efforts by, to
ameliorate the Criminal Laws, iii.
233.
EOOKE, Sir Giles, Justice of the
Common Pleas, decision of, on
the trial of Eedhead Yorke, iii.
136 — character of, 137.
EOOKWOOD, Ambrose, trial of, for
conspiring to effect the death of
William JIL, ii. 145.
" EOOME," the word in old English
used for " office," i. 184.
Eoos, Lord, complaint by, against
Mr. Justice Therwit, i. 135.
EUMBOLD, Sir Thomas, a friend of
Warren Hastings, iii. 111.
EUNNYMEDE, Charter of, i. 48, 53,
55.
EUPIBUS, Peter de, a stout soldier,
Bishop of Winchester and Chief
Justiciar, i. 43 — tutor to Henry
III., his aversion to the English,
44 — takes the Cross, 45 — gains a
battle for the Pope, his revenge-
ful conduct to De Burgh, 48 — his
popularity and influence, 51 —
dies at Farnham, 46.
EUSSELL, Lord John, education of,
at a Scotch university, ii. 234 —
as Prime Minister, appoints Lord
Campbell to be Chief Justice of
England, iii. 1.
EUSBY, an eminent corn-merchant,
convicted and severely punished
for forestalling, iii. 78.
EUSHWORTH, collections by, extracts
from, i. 331.
EUSSELL, William, Lord, incidents
of the memorable trial and execu-
tion of, in 1683, ii. 45.
EUSSELL, Eachael, Lady, heroism
and tenderness of, on trial of her
husband, ii. 45.
EUSSIA, Alexander Emperor of, re-
mark by, on the opposition in the
English Parliament, iii. 202.
EYDER, Archbishop of Armagh, bio-
graphical anecdotes of, ii. 234,
257, 259.
EYDER, Sir Dudley, parentage, ii.
233— education, 234— made So-
licitor-General, 235 — Attorney-
INDEX.
403
RYE-HOUSE.
General, 239 — his parliamentary
speeches, 241 — his conduct as an
advocate, 253 — is made Chief
Justice, 255 — his sudden death
when about to be raised to the
Peerage, 257 — the dignity be-
stowed afterwards on his son, 259
—letters to Lady Ryder, 260— de-
scendants, 2G5.
RYE-HOUSE Plot, ii. 44 — trials, 75.
R YMER'S Focdera, extracts from do-
cuments preserved in, i. 124, 304.
S.
SACHEVERELL, Dr., memorable trial
of, ii. 179.
SACKVILLE, Lord G., his interview
with Lord Mansfield, ii. 548.
SALISBURY, Burgess, Bishop of,
tutor at Oxford to Lord Tenterden,
iii. 257, 266.
SATIRE, Essay on the Use and Abuse
of, by Lord Tenterden, iii. 263.
SAUNDERS, Sir Edmund, draws up
the London Quo Warranto case,
ii. 41 — made Chief Justice of
England, 42 — parentage, 59 —
legal education, 60 — rapid progress
at the bar, 61 — his excellent re-
ports, 62 — why discontinued, 63
— knighted, quarrel with Pember-
ton, Chief Justice, 64 — made
Chief Justice of King's Bench,
66 — London Quo Warranto, 65 —
the hearing, 67 — Judgment on it,
68: — his conduct in Rex v. Pilk-
ington, 69— his last illness, 68—
death, 72 — habits and appearance,
73— his will, 74.
SAUNDERS, Sir Ed ward, Chief Justice
of the King's Bench, i. 178.
SAWYER, Sir Robert, Attorney-Ge-
neral, ii. 37 — argues the Quo
Warranto case, 68 — dismissed
for refusing to argue the King's
dispensing power, 87 — counsel for
the seven Bishops, 48, 107 — re-
fuses to accept the fees, 53 — dis-
closures by, in the House in de-
bate on the Indemnity Act, 114.
SETTLEMENT.
SAYER v.- Bennett, 1 Cox, 107 —
direction of Lord Kenyon in, re-
specting a Lunatic Partner, iii.
34.
SAYER'S reports of cases decided in
the time of Chief Justice Ryder,
ii. 256.
SAYS, Lord, action of trespass by, for
cattle seized in payment of ship-
money, i. 401.
SAXON Chronicle, quotation from, i.
6, 8, 10, 16 — monastery on
Thorney Island, 15, 16.
SCOTLAND, Annals of, i. 22, 54 —
monasteries in, founded by Bruce,
65— homage by its Kings, 14, 22 —
arbitration respecting the Crown
of, 79— Universities of, system of
education at, ii. 309 — currency
in, explained, 310 — school disci-
pline in, 309 — Jury trial intro-
duced into, 554.
SCROGGS, Sir Wm., errors respecting
his family, ii. 4— his true parent-
age, 5 — in arms as a cavalier,
studies law, called serjeant, 6 —
arrested for debt, introduced to
the King, made a Justice of the
Court of Common Pleas, 7 — plots
against Chief Justice Raynsford,
succeeds as Chief Justice of King's
Bench, his conduct respecting the
Popish plot, 9 — trial of Stayly, 10
— his conduct on other trials, 11,
15 — changes sides, 12 — procures
an acquittal, is attacked and de-
fends himself, 13 — dialogue with
Dangerfield, 15 — scheme for ex-
tinguishing the liberty of the
press, 16 — prevents the Duke of
York being indicted as a popish
recusant, 17 — accused before the
King in Council and acquitted,
18 — impeached by the Commons,
19 — cashiered, 21 — death, charac-
ter, 21.
SCROPE, Henry le, Justice of Com-
mon Pleas, made Chief Justice of
the King's Bench, i. 86.
ST. PHILIP'S, port of, the flight of
Admiral Byng from, ii. 386.
SETTLEMENT, Act of, important pro-
visions in, ii. 357.
2D2
404
INDEX.
SEAMEN.
SEAMEN, legality of pressing for the
Navy, explained and justified by
Lord Mansfield, ii. 419.
SEDITIOUS publications, circular let-
ter from Lord Sidmouth, in 1817,
for the suppression of, iii. 212.
SEGRAVE, Stephen de, Chief Justi-
ciar, i. 51-54 — wives and descend-
ants of, 55.
SELDEN, John, improper prosecution
of for speeches delivered in the
House of Commons, i. 385, 386 —
proceedings against for supporting
Petition of Right, 412 — opposition
by, to the Bill of Attainder of
Lord Strafford, 460— Table-talk
by, 567 — will and legacies, 586.
SENECA, Thyestes of, translated by
Sir M. Hale, i. 575.
SEPARATION, deeds of, when valid,
iii. 158.
SEPTENNIAL Act, famous debate on
the motion for the repeal of, ii.
269.
SERJEANTS at Law, coif why adopted
by, i. 72 — expensive festivities at
the call of, 171, 212 — wigs, origin
of the custom of, 267 — dress of,
585.
SESSIONS, Quarter, origin of, i. 90 —
iiseful forensic practice at, iii. 14.
SEWELL, Sir Thomas, Master of the
Rolls, death of, iii. 26.
SHAFTESBURY, Earl of, committed to
the Tower, ii. 2 — applies for writ
of Habeas Corpus, and is refused,
3— joins with Lord Russell and
the Whigs in an indictment
against the Duke of York, 17, 18
— charge against of treason, 39. —
See Lives of the Chancellors, iii.
ch. xc.
SHAKSPEARE, scenes and quotations
from, i. 42, 47, 74, 123, 130,
135, 161, 259, 338, 564 ; ii. 25—
legal knowledge of, i. 43— ana-
chronisms of, 133 — mode of live-
lihood on arriving in London, iii.
266.
SHAPWICK, near Glastonbury, bu-
rial place of Rolle, Chief Justice,
i. 433.
SHOWER.
SHARESHALL, Sir William, Chief
Justice of King's Bench, passes
Statute of Treasons and of Labour-
ers, i. 92 — speech to Parliament
^ by, 93.
SHELBURNE, Lord, speech by, on the
American war, ii. 498 — motion
by, for arming the people, iii. 18
— ministry of, 20.
SHELLEY'S case, rule in, explained,
i. 245; ii. 431 — argument of Lord
Mansfield respecting, 564.
SHELLEY, Justice of Common Pleas,
interview of with Wolsey, i.
162.
SHERFIELD, Recorder of Salisbury,
prosecution of, in the Star Cham-
ber, for breaking a painted win-
dow in a church, i. 394.
SHEPHERD, Sir Samuel, complimen-
tary observation on, by Lord Ken-
yon, iii. 89 — incurable deafness
the reason of his non-appointment
as Chief Justice of England, 266,
289.
SHERIDAN, Right Hon. R. B.,
speeches by, iii. 22 — memorable
cross-examination of, 139.
SHERIFFS, privileges and disabilities
of, i. 324.
SHIP-MONEY, an invention of Noy's,
i. 414 — resistance to it by Hamp-
den, 313 — extra-judicial opinions
of Judges on, 416 — arguments on,
454.
SHIPS and Shipping, treatise respect-
ing, by Lord Tenterden, a mas-
terly analysis of the subject, di-
vided logically and lucidly, pro-
positions laid down with precision,
supported by just reasoning, for-
tified with dicta and decisions of
jurists and Judges, in a clear,
simple, idiomatic style, a beauti-
ful specimen of genuine Angli-
cism, iii. 274, 279 — its fame in
America, 275.
SHOWER, Sir Bartholomew, Reports
by, ii. 47 — one of the counsel for
the Bishops, 108— his defence on
behalf of Amb. Rookwood encou-
raged by Holt, Chief Justice,
145.
INDEX;
405
SHREWSBURY.
SHREWSBURY, Parliament held at,
by Edward I., i. 74.
SHREWSBURY, Countess of, her pro-
secution before the Privy Council,
fined, i. 237 — -divorce and second
marriage, 279 — her trial, 281.
SIDERFIN'S Reports — a reporter of
cases decided during the Com-
monwealth, i. 440, 445, 501, 507,
510 — disregarded by Lord Mans-
field, ii. 429.
SIDMOUTH, Lord, circular letter by,
respecting seditious publications,
iii. 212.
SINDERCOME'S trial, for conspiring to
assassinate Cromwell, i. 441.
SITTINGS of Law Courts, formerly
held in the evenings, ii. 262,
450.
SLAVES, entitled to freedom on ar-
riving in England, a decision by
Lord Mansfield, i. 186, 189; ii.
418.
SMITH, James, author of ' The Re-
jected Addresses,' description by
of Lord Kenyon's costume, iii. 92.
SMITH, Baron of Exchequer, decision
by, on the Aylesbury case, ii.
160.
SMITH, Mr., confidential clerk to
Lord Ellenborough, letters to, iii.
226, 227.
SMITH, Sydney, remarks by, on the
Corn Laws, iii. 80.
SMOLLETT, Dr., character by, of Lord
Mansfield, ii. 579.
SMYTHE, Sir S. S., a Commissioner
of the Great Seal, ii. 273, 291—
infirmities of, when Chief Baron,
571.
SOLICITOR, universal adoption of
term of in modern times, iii. 293.
SOLICITOR - GENERAL, powers and
privileges of the, ii. 296.
SOMERS, Lord, counsel for the seven
Bishops, ii. 48 — removed from the
office of Chancellor by the King,
154 — enters Parliament late in
life, 562 — disgust of at the duties
of an attorney, iii. 4. — See Lives
of the Chancellors, iv. 62.
ST. JOHN.
SOMERSET'S case, judgment of Lord
Mansfield in, ii. 419.
SOMERSET, Earl and Countess of,
proceedings against for the mur-
der of Sir Thomas Overbury, i.
279, 286, 351.
SPECIAL cases of facts for the con-
sideration of the Judges, excellent
regulations respecting, introduced
by Lord Mansfield, ii. 400.
SPAIN, Queen of, censure on the cir-
cumstances connected with the
marriage, i. 302.
SPEAKERS of the House of Com-
mons, afterwards Judges : Dyer, i.
180— Wray, 201— Popham, 212
— Croke, 232— Coke, 247— Finch,
330 — Crewe, 371 — Richardson,
388.
SPEED, remark by, on the oppression
of the English by Jews and
Judges, i. 78.
SPELMAN'S Glossary, extracts from,
i. 2, 29, 34, 44, 53, 56, 344.
SQUIRES v. WHISKEN, decision in,
respecting the illegality of cock-
fighting, iii. 165.
ST. ASAPH, Dean of, celebrated trial
of, ii. 540; iii. 24 — eloquent
speech of Erskine on, ii. 565.
ST. JOHN, OLIVER, speech of, against
the Judges, i. 78 — Chief Justice
of Upper Bench, an able lawyer,
447 — paternity and education, 448
— a keen republican, 449, 455 —
prosecuted in the Star Chamber,
450, 452 — proceedings abandoned,
453-— counsel for Hampden, 453
— his conduct in the Long Par-
liament, 457 — made Solicitor-Ge-
neral, 458 — his atrocious pro-
ceedings in the prosecution of
Lord Strafford, 459— his bill
against the Church, 461 — for
transferring the military power to
the Parliament, 462 — his plan for
quieting all scruples respecting
the oath of allegiance, 463 — his
proposal for supplying Parliament
with a new Great Seal, 464 —
superseded in office, becomes a
Lord Commissioner under the
Parliament, 465 — Commissioner
406
INDEX.
ST. LEONARDS.
at the treaty of Uxbridge, 466 —
Chief Justice of Common Pleas,
469 — conduct after the execution
of Charles I., 470 — conference
with Fairfax, 471 — Ambassador
to Holland and insulted at the
Hague, 472 — establishes the Na-
vigation Laws, 473 — accepts a
Peerage from Cromwell, charges
of corruption against, 475 — his
danger at the Eestoration, 476 —
his exile, return, death, 477 —
parallel between, and Cromwell,
478.
ST. LEONARDS, Lord, admirable
works by, on Vendors and Pur-
chasers, and on Powers, iii. 275.
STANHOPE, Lord, speech of, to banter
Lord Kenyon respecting the law
of libel, iii. 41 — altercation be-
tween and Lord Ellenborough,
195.
STATE-TRIALS. — See Trials.
STAUNTON, H. de, Justice of Com-
mon Pleas, Chancellor of Ex-
chequer and Chief Justice of
King's Bench, i. 86— Chief Jus-
tice of Common Pleas, Chief
Baron of Exchequer, 87 — ballad
on, 88.
STAYLY, the Roman Catholic banker,
judicially murdered for supposed
participation in the Popish Plot
ii. 10.
STEELE, Sir Eichard, character of
Lord Holt by, ii. 172.
STEPHEN, King, intrigues and strug-
gles of to secure the throne of Eng-
land, i. 16, 17, 19.
STOCKDALE v. HANSARD, alteration
of practice since the decision in
the case of, ii. 164 ; iii. 48.
STOCKDALE v. ONWHYN, doctrine
established by, iii. 302,
STOKE-POGIS, one of the places of
confinement for Charles I., i.
346.
STONE, William, trial of, for treason,
iii. 52.
STONE, Mr., tutor to George TIT.,
inquiry respecting his connection
SUFFOLK.
with the Jacobite faction, ii.
371-4.
STOREY, Professor, eulogy on Lord
Mansfield by, ii. 582 — censures
\>y, on decision in Doe dem,
Barthwistle v. Vardill, iii. 310.
STOWELL, Lord, approbation by, of
the vindication of our naval rights
by Lord Mansfield, ii. 377 — re-
collections of Dr. Johnson by
573.
STORMONT, David, First Viscount,
biography of, ii. 305 — his fine
monument, 306.
STRAFFORD'S, Earl of, letters and
despatches, i. 303, 334 — atro-
cious proceedings against, 459 —
execution, 461.
STRATTON and others, trial of, for
deposing Lord Pigot, iii. 13.
STRANGE, Sir John, Master of the
Eolls, death of, ii. 382.
STRAW, Jack, devastation of pro-
perty occasioned by, i. 94.
STREAMER'S case of Parliamentary
privilege, i. 426.
STREET, Sir Thomas, Justice of
Common Pleas, a most servile
Judge, his collusive dissent on
the King's dispensing power, ii.
88-128.
STRICKLAND, Miss Agnes, Lives of
Queens of England by, i. 23.
STRINGER, Sir Thomas, a Justice of
the King's Bench, vice Holloway,
dismissed in 1688, ii. 117.
STROUD, prosecuted for supporting
Petition of Eight, i. 412.
STUDENTS at Law, anxiety for the
proficiency of evinced by Lord
Mansfield, ii. 329 — by Lord
Kenyon, iii. 85 — costume and
habits of, ii. 515, 585.
STYLES, a law reporter during the
Commonwealth, i. 439.
SUFFOLK, Earl of, Lord Treasurer,
passes sentence of suspension on
Lord Coke, i. 288 — prosecuted
with his Countess in the Star
Chamber, and heavily fined,
305.
INDEX.
407
SUNDERLAND.
SUNDERLAND, Earl of, evidence by,
on the trial of the Bishops, ii.
51.
SURNAMES of English families, origin
of, i. 240.
SWENDSEN, Haagen, his conviction
and execution for forcibly mar-
rying an heiress, ii. 174.
SWINTON, Lord, pamphlet by, urg-
ing the introduction of jury trial
in Scotland, ii. 553.
T.
TALFOURD, Sir T. N., Justice of the
Common Pleas, narration by, of
a dialogue between Lord Ellen-
borough and Henry Hunt, iii.
241 — sketch of Lord Tenterden
by, 341.
TALBOT, Lord Chancellor, sudden
death of, ii. 270.— See Lives of
the Chancellors, iv. 648.
" TALENTS, All the," Ministry of,
entry to office by, in 180G, iii.
183, 242— dismissed, 193,
TARLETON'S Jests, extract from,
respecting the imprisonment of
Henry V., i. 129.
TATE, an obscure Serjeant, made
Recorder of London on the re-
moval of Lord Holt, ii. 129.
TATLER, characters admirably de-
scribed in, ii. 172.
TAYLOR, M. Angelo, remark on his
diminutive stature, by Lord
Ellenborough, iii. 241.
TAXES, refusal to pay illegal, ii.
474.
TAX on Receipts, debate on, ii. 22.
TEA, tax imposed on, ii. 510.
TEMPLE, Inner, bad quality of the
dinners in hall of, complained
of by the students in 1573, i.
243.
TEMPLE, Middle, feasts at, i. 194 —
moots and readings at, 349 — pro-
cession from, to Westminster on
installation of a Chief Justice,
267, 353.
TENTERDEN.
TEMPLE, Sir William, new scheme
of administration by, ii. 12.
TERM-TIME, rules for the practice
of the bar during, established by
Lord Mansfield, ii. 399.
TENTERDEN, Lord, parentage, iii. 249
— education at Canterbury and
Oxford, 250 — intimacy with Sir
Egerton Brydges and Lord Thur-
low, 252 — question as to his pro-
fession, 253 — enters the Univer-
sity of Oxford, 254 — obtains a
scholarship at Corpus College,
255 — under tuition of Bishop
Burgess, 257 — prize poem gained
by, 258 — prize essay carried off,
262 — appointed College tutor,
266 — becomes tutor to the son of
Mr. Justice Buller, 267 — advised
by that eminent Judge to select
the bar for his profession, 268 —
conference with Lord Colchester
on the subject, 269 — enters at the
Middle Temple, 270 — a special
pleader under the bar, 271 — suc-
cess of, on the Oxford Circuit,
272 — accident when travelling
near Monmouth, 273 — treatise
on Merchant Ships and Ship-
ping, published by, in 1802, 274
— increasing business at Guild-
hall, 275 — large income, incom-
petency as an advocate, 276 —
chief effort at oratory, 277 — social
conduct on circuit, 278 — mar-
riage, 279 — desire to be a Judge
and disappointment, 282 — ap-
pointed a Judge in the Common
Pleas, 284 — transferred to the
King's Bench, 286 — literary at-
tainments of, kindness to Lord
Campbell, 288 — becomes Chief
Justice of England, 289 — extra-
ordinary excellence of the King's
Bench as a court of justice while
he presided over it, 291 — great
merit as a Judge, 292 — subjection
to Sir James Scarlett, 294 — dis-
cretion of, in avoiding disputes
about jurisdiction, 297 — judicial
decision that the public have no
common law right to the use of
the seashore for bathing, 298 —
that no action lies for pirating
408
INDEX.
T1IAHE.
ail obscene book, 301 — defence
by, of the English doctrine of
high treason, 302 — decision by,
that it is libellous to say falsely
that the Sovereign or any other
person is afflicted with insanity,
303 — conduct as Judge on the
trial of the Cato Street conspira-
tors, 306 — improperly forbids the
publication of trials for treason
until they are concluded, 308 —
dislike of, to technical niceties,
309 — propensity of, to suspect
fraud, 310 — doctrine laid down
by, about " care and caution " in
taking negotiable securities over-
ruled, 311 — raised to the peerage
by Mr. Canning, 313 — ceremony
of his taking his seat in the House
of Lords, 315 — maiden speech
by, 316 — opposition of, to the re-
peal of Corporation and Test Acts,
318 — to Catholic Emancipation,
320 — to the Anatomy Bill, 323 —
to the Bill for taking away capi-
tal punishment for forgery, 324
— efforts of, for amending the
law, 324 — measure proposed by,
respecting prescription and tithes,
325 — sound views of, respecting
parliamentary privilege, 328 —
speech against the Eeform Bill,
329 — last speech of, in the House
of Lords, vowing never again to
enter the House if the Reform
Bill passed, 332 — declining state
of his health, 333 — last circuit
travelled by, 327 — last appear-
ance in court, 334 — death and
funeral of, 335 — character and
manners of, 336 — compliment to
from Sir Peter Laurie, 337 — en-
comiums on, by Macready, 338—
anecdotes of, in the Quarterly Re-
view, 339 — by Townshend, Lord
Brougham, 340 — by Mr. Justice
Talfourd, 341 — love for classical
literature and talent for making
Latin verses, 343 — specimens of
Latin poems by, 344 — botany
taken up by, late in life as a scien-
tific pursuit, 345 — ample fortune
of, and descendants, 348.
TIIAMK, birth-place of Chief Justice
Holt, ii. 119.
TOMKTNSON.
THEATRICALS, rage for, created by
Garrick, ii. 261, 263.
THEBNYNGE, Sir W., Chief Justice
of Common Pleas, decisions of, i.
114 — his part in the deposition of
Richard justified, 115 — his con-
duct on the occasion, 116, 119—
Chief Justice of King's Bench,
his death, 120.
THEBWIT, Sir Robert, a Judge of
the King's Bench, complaint of
Lord Roos against, i. 135.
THOBNEY Island, monastery founded
on, i. 15.
THOENTON, Richard, trial of, for
murder, iii. 170.
THOEOTON, History of Nottingham-
shire by, i. 87.
THOEPE, Sir William de, Chief Jus-
tice, i. 88 — his professional pro-
gress, addresses to Parliament, 89
— convicted of bribery, 90.
THROCKMOETON, Sir N., trial of, be-
fore Chief Justice Bromley, i.
144.
THUELOW, Lord, Lord Chancellor,
illness of, ii. 518 — leader of the
opposition in 1783, 536 — speech
by, against the Chatham Annuity
Bill, 508 — re-appointed Chancel-
lor, 537 — personal appearance of,
563 — imitations of, by Lord
Holland, 581 — engages Lord
Kenyon as his fag, iii. 10 — ap-
points him Chief Justice of Ches-
ter, 11 — secures his return to
Parliament, 12 — continues Chan-
cellor under the Rockingham ad-
ministration, 17 — clause for ex-
empting his tellership rejected,
22 — anecdotes relating to, 85. —
See Lives of the Chancellors, v.
473.
TILLOTSON, Archbishop, a witness
for Lord Russell, ii. 45.
TILNEY, prosecution and conviction
of, for conspiracy to murder Queen
Elizabeth, i. 216.
TITTESHALL Church, Norfolk, the
burial-place of Chief Justice Coke,
i. 337.
TOMKINSON, Mr., attorney at Nant-
wich, Lord Kenyon articled to,
INDEX.
409
TONGE.
TRIALS.
iii. 3, 8 — ungenerous conduct
of, 5.
TONGE, Thomas, trial of, for attempt
to assassinate Charles II., i. 498.
TOOKE, Home, trial of for libel, ii.
503 — penury and genius of,
iii. 7.
TOPPING, Mr., King's Counsel,
anecdotes of, iii. 272.
TORTURE, contrary to law, when in-
troduced, and by whom, i. 252,
262 — opinions against, 391.
TOURS, Council of, i. 36.
TOWNSEND'S Lives of the Judges,
extracts from, iii. 84, 88, 95, 152,
228, 271, 295, 327, 337, 339.
TOWTON-FIELD, battle of, i. 141.
TOWNLEY, Colonel, trial of for trea-
son, ii. 250.
TRADES and professions in London
ii. 303.
TREASON, High, laws of, general
analysis of, by Mr. Attorney-
General Ryder, ii. 246— exposi-
tion ^of, by Lord Mansfield, 532
— privileges of counsel in trials
for, iii. 110 — the English doctrine
of, explained and "defended by
Lord Tenterden, 302.
TREBY, Sir George, counsel for
the bishops, ii. 48 — Chief Jus-
tice of Common Pleas, a Lord
Commissioner of the Great Seal
155.
TRESILIAN, Sir R., a Justice of
Common Pleas, Chief Justice of
King's Bench, i. 96 — his plan
for the King to triumph over the
Barons, 97 — for annihilating
power of Parliament, 99 — mea-
sures against the Barons, 100 —
prosecuted for treason, 102 — at-
tainted, 103 — executed, 105.
TREVOR, Justice, resigns his place
of Judge on the execution of
Charles, i. 470.
TREVOR, Sir Thomas, Chief Justice
of the Common Pleas, decision by,
in the Aylesbury Case, ii. 160.
TRIALS, criminal, practice of interro-
gating prisoners on, ii. 174.
TRIALS, State, of George, Duke of
Clarence, i. 15 3— Stafford, Duke of
Buckingham, 161 — Fisher, Bishop
of Rochester, 165— Sir Thomas
More, 167 — Anne Boleyn and her
supposed gallants, 168 — the Duke
of Norfolk, 175, 189, 196— Sir
Nicholas Throckmorton, 144, 181
— Campion, the Jesuit, 203 —
William Parry, 204 — the Earl of
Arundel, 207 — Tilney, 216 —
Secretary Davison, 217 — the Earl
of Essex, 220, 252— Sir Walter
Raleigh, 222, 257, 356— Garnet,
the Superior of the Jesuits, 225-
264 — the Countess of Shrews-
bury, 237— Guy Fawkes, 261—
Peacham, 278— Earl of Middle-
sex, 321— Earl of Somerset, 352 —
Countess of Somerset, 279, 352 —
Sir Giles Mompesson, 359 — John
Hampden, 401, 454 — Harrison,
402 — Williams, Bishop of Lin-
coln, 403— Oliver St. John, 450-
454 — Lord Strafford, 459 —
Charles I., 480— the Duke of
Hamilton, 484 — Sir Harry Vane,
494— Thomas Tonge, 498— Col.
Hacker, 504 — of the London Ap-
prentices, 508 — Christopher Love,
525— Lord Craven, 525— of the
Regicides, 542 — Andrew Brom-
wich, ii. 11 — Sir George Wake-
man, 13 — Earl of Castlemainc,
15 — Fitzharris, 35 — Dr. Plunket,
36 — Lord Grey de Werke, 40-69
— Colonel Walcot, 44 — Lord
Russell, 44-125 — the Seven Bi-
shops, 48, 105— Pilkington, .69 —
Lord Delamere, 84 — Lord Danby,
124 — Charnock, 144 — Ambrose
Rookwood, 145 — Christopher
Layer, 186, 195— Beau Fielding,
191 — Major Oneby, 199 — the
rebels in 1745, 221 — Lord Lovat,
251, 361 — Elizabeth Canning,
277 — Lord Balmerino, 359 — Dr.
De Hensey, 454 — the Duchess of
Kingston, 500 — Home Tooke,
503— Lord George Gordon, 531:
iii. 14 — Dean of St. Asaph, ii.
540; iii. 24 — Stockdale, 48—
John Frost, 50 — Perry and Lam-
bert, 51— William Stone, 52—
John Reeve, 53— Gilbert Wake-
field, 54 — proprietor of the Cou-
410
INDEX.
TRINITY-HALL.
rier, 56 — Hadfielcl, 57 — Benjamin
Flower, GO — Warren Hastings,
109 — Walker, 134 — Redhead
Yorke, 135 — Lord Thanet and
Mr. Ferguson, 138 — Governor
Wall, 147 — Despard and others,
177— Peltier, 180— Lord Melville,
192 — Leigh Hunt, 201 — Lord
Cochrane, 218— Dr. Watson, 220
—William Hone, 223— Thistle-
wood, 302, 306 — the Mayor of
Bristol, 334.
TRINITY-HALL, Cambridge, study
of the Roman Civil Law encou-
raged at, ii. 281, 299.
TROYN, John, executed for printing
a libellous book, i. 501.
TRUSSELL'S continuation of Daniel,
remark in, on the imprisonment
of Henry V., i. 131 n.
TRUSTS, courts of law incompetent
to consider, iii. 47.
TUNBRIDGE WELLS, poetry on the
visit of Lord Mansfield to, ii.
547.
TURNER, Bishop, anecdotes related
by, of Lord Ellenborough, iii.
225.
TURNER, Mrs., trial of, before Lord
Coke, for the murder of Sir
Thomas Overbury, i. 280.
TURPINE, Captain, trial and execu-
tion of, at Exeter, i. 418.
TWICKENHAM, favourite residence of
Pope and of Lord Mansfield, ii.
340.
TWISDEN, Justice of King's Bench,
a very learned Judge, i. 510 —
his harsh treatment of John
Bunyan, 560.
TYLER, Rev. J. E., Life of Henry
V.by,i. 126, 136.
u.
USHER, Archbishop, his plan of
Church government, i. 545.
UXBRIDGE, memorable treaty at,
between Charles I. and the Com-
missioners for the Parliament, i.
466.
WADDING TON.
V.
VACATION Rambles, by Justice Tal-
fourd, iii. 241, 341.
VANE, Sir Harry, trial and execu-
tion of, i. 495, 506.
VANLOO, portrait by, of Lord Mans-
field as a Westminster school-boy,
ii. 583.
VAUGHAN, Sir John, Chief Justice
of the Common Pleas, an early
friend of Lord Hale, i. 518 — re-
fuses to recognise the Common-
wealth, 524 — a consummate
common-law Judge, iii. 2.
VAUGHAN, Mr. Justice, ignorant of
the law of real property, iii. 237
— appointment as Judge, 238.
VENDORS and Purchasers, admirable
work on, by Lord St. Leonards,
iii. 275.
VENTRIS, inaccuracies and barbarous
dialect of the Reports by, ii.
47.
VENUS, the Hottentot, Case of, dis-
cussed in the King's Bench, iii.
161.
VILLEINAGE, Case on law of, i. 187,
189.
VILLIERS, Sir John, brother of the
Duke of Buckingham, betrothal
of to Lady Frances Coke by her
father, i. 296 — strange proceed-
ings therefrom, 297 — interference
of" the King on behalf of, 301 —
marriage of celebrated in the pre-
sence of the King and Queen, 303
—created a viscount, 304.
VIVEASH v. BECKER, memorable
decision in, iii. 166.
VOLTAIRE, respect of Lord Mansfield
for the genius of, ii. 335 — the
indiscriminate abuse of, in Eng-
land, since the French Revolu-
tion, ibid.
w.
WADDINGTON, REX v.t criminal in-
formation in, iii. 77.
INDEX.
411
WAGERS.
WAGERS, decision of Lord Mans-
field on the law respecting, ii.
420.
WAIXWRIGHT, Mr. Justice, amusing
letter of, respecting Irish duels
and juries, ii. 238.
WAKEFIELD, Gilbert, trial of, for
publishing a pamphlet of a cle-
mocratical tendency, iii. 54.
WAKES, ordinance against, i. 396.
WALCOT, Colonel, trial and convic-
tion of, for complicity in the
Eye-House Plot, ii. 44.
WALDEGRAVE, Lord, Memoirs of,
respecting Ministerial changes in
1757, ii. 449.
WALES, Courts of Lord President
of, arbitrary proceedings of, i.
273.
WALES, Prince of, inhuman execu-
tion of at Shrewsbury by Ed-
ward I., i. 74 — committal of to
prison by Sir W. Gascoigne, 127
— Lord Coke released from the
Tower on the intercession of, 319
— (Frederick) death of, ii. 247,
371 — character of, 368 — Princess
of (Augusta) appointed Eegent,
247, 368— (Caroline) delicate in-
vestigation about, iii. 205.
WALKER, Walter, the innkeeper,
trial and execution of, for alleged
treason, i. 147.
WALKER, REX v., incidents on the
trial of, iii. 134.
WALL, Governor, harsh prosecution
of, iii. 147 — vengeful enthusiasm
against, 151 — execution of, 152.
WALLACE, Attorney - General to
Coalition Ministry, turned out of
office, iii. 17, 20— reappointed, 21,
24 — dismissed, 23, 104.
WALPOLE, Horace, remarks by, on
the severe treatment of attorneys
by Willes, Chief Justice, ii. 276—
anecdotes related by, 278, 283,
481, 489— his satire on Wilmot,
Chief Justice, 298— account by, of
the court of the Pretender, 372—
remark by, on the conduct of Lord
Mansfield when accused by Lord
Chatham of being a Jacobite, 375
WEMYSS.
— remarks by, on Lord Mansfield
becoming a Cabinet Minister,
451.
WALPOLE, Sir Robert, bill for the
Impressment of Seamen by con-
stables abandoned by, ii. 243 —
speech by, against the Repeal of
the Septennial Act, 270 — memor-
able interview of, with Lord Hard-
wicke respecting the Great Seal,
271.
WARBURTON, Bishop, remarks by,
on the extraordinary marks of
kindness evinced by Pope for
Lord Mansfield, ii. 330.
WARD, Chief Baron of Exchequer,
a Commissioner of the Great Seal
in 1700, on the removal of Lord
Somers, ii. 155.
WARREN, Thomas, the system of
taking legal pupils introduced
by, ii. 328.
WARRENNE, William de, Chief Jus-
ticiar, his descendants, i. 12 —
epitaph at Lewes, 13.
WATSON, Dr. James, memorable
trial of, for treason, iii. 220.
WAYNFLETE, Lord Chancellor, a
zealous Lancastrian, i. 147. — See
Lives of the Chancellors, i. 360.
WEALD-HALL, near Brentwood, re-
sidence of Chief Justice Scroggs,
ii. 21.
WEARG, Sir Clement, Memoir of, ii.
268.
WEYLAND, Chief Justice of Common
Pleas, banished for taking bribes,
i. 78.
WEDDERBURN, Sir John, trial and
execution of, for treason, ii. 226.
.WEDDERBURN, Lord Loughborough,
insult by, to Benjamin Franklin,
one of the causes of the American
War, ii. 495 — reasons for his
failure as a debater in Parliament,
563. — See Lives of the Chancellors,
vi. 1.
WELDEN, Sir A., Court and Cha-
racter of James I. by, i. 281.
WEMYSS, John, treatment of Lord
Mansfield by, ii. 315,. et seq.
412
INDEX.
WENTWORTH.
WENTWORTH, Paul, the Puritan, his
motion for a public fast, i. 213.
WESTERN Circuit, anecdotes of, i.
396, 555— the Bloody Assizes
on, ii. 77, 90.
WESTMINSTER Hall built by Eufus,
i. 15 — antiquity and prestige of,
ilrid.
WESTMINSTER, hours of attendance
at the Courts of, in 16th century,
i. 242.
WETHERELL, Sir Charles, eccentric
exuberance of, on the trial of Dr.
Watson, iii. 220.
WHARTON, Sir G., Gesta Britanni-
orum by, i. 491.
WHETSTONES, the Rhyming Bio-
grapher, verses by, i. 179 — re-
marks by, 191.
WHIDDIN, Sir J., Justice of King's
Bench, his remark on the im-
prisonment of Henry V., i. 128.
WHIGS, all politicians ranking under
general denomination of, during
the reigri of George II., ii. 156,
345, 466.
WHITELOCK, description of Eolle,
Ch. J., by, i. 425 — assists in pre-
paring articles of impeachment
against Lord Straiford, 457 — Com-
missioner of Great Seal, 469 — his
' Memorials,' 474, 489.
WHITGIFT, Archbishop, tutor of
Lord Coke, i. 241, 256— pastoral
letter of, against irregular mar-
riages, 255 — institutes a suit
against Lord Burleigh, Coke, and
others, for promoting an irregular
marriage, 256.
WILDE, Serjeant, an active member
of the Long Parliament, made
Chief Baron V Cromwell, i. 468.
WILKES, John, decision of the Judges
in the case of, ii. 296.
WILLES, Edward, Bishop of Bath
and Wells, his parentage, ii. 267.
WILLES, Sir Edward, appointed a
Justice of the King's Bench, in
January 1768, ii. 278.
WILLES, Sir John, his early career,
ii. 266 — Attorney-General and
Chief Justice of Chester, 268—
WILLIAMS.
speech on the Septennial Act de-
bate, 269 — is made Chief Justice
of the Common Pleas, 239, 270—
his political intrigues, 271 — First
Lord Commissioner of Great Seal,
272— loses the Chancellorship, 273
— dies broken-hearted, 275— his
judicial decisions, 276 — his de-
scendants, 278— character of, 266,
272, 276— profligate private life
of, 277 — lampoon by, on Lord
Mansfield, 579.
WILLIAM I., invasion of England
by, i. 4, 11— coronation of, 5 —
death of, 8 — insurrections against,
8, 12.
WILLIAM Rufus, conspiracy against,
i. 9 — Church property seized by,
14 — Westminster Hall erected by,
15.
WILLIAM III., landing of, at Torbay,
ii. 48 — Judges appointed by, 53,
117 — political factions equally ba-
lanced during the reign of, 118 —
threat of, to return to Holland
unless the throne formally de-
clared vacant, 132 — anxiety of,
for securing competent and honest
Judges, 133 — conspiracy to de-
throne, 143 — takes away the Great
Seal forcibly from Lord Somers,
154 — bill to appoint the Judges
quamdiu se bene gesserint vetoed
by, 155 — the Great Seal kept a
long time in commission by, 484.
WILLIAM the Lion, King of Scot-
land, invasion of England by, i.
19 — taken prisoner, 20 — humi-
liating terms imposed upon, 22,
80.
WILLIAMS, conviction of, for pub-
lishing the Age of Reason, iii. 57.
WILLIAMS, Bishop, Lord Keeper,
attempt by, to convict Archbishop
Abbot of manslaughter, i. 314,
367, 372 — prosecution of by Laud,
403 — punishment imposed on,
404. — See Lives of the Chancellors,
ii. 441.
WILLIAMS, Sir John, Justice of the
King's Bench, admirable scholar-
ship of, iii. 344.
INDEX.
413
WILLIAMS.
WILLIAMS, Mr. Justice V., Lis edi-
tion of Saunders's Reports, ii. 73.
WIGS of barristers introduced at the
Restoration, i. 482.
WILMOT, Sir J. Eardley, birth and
education, ii. 279 — his eminent
school- fellows, 280— his anxiety
for seclusion, 282, 288— retires
from London, 283 — is made a
Judge, 284 — a Commissioner of
the Great Seal, refuses to be Chan-
cellor, 286 — becomes Chief Justice
of Common Pleas by duress, 289
— again refuses the Great Seal,
291— resigns his office, 292.
WILSON, Life and Reign of James I.
by, i. 269, 305, 319.
WITCHCRAFT, statute making it
felony, i. 562 — trial of persons
accused of, 564 — their execution,
566 — trials for, abolished by sta-
tute, ii. 170, 190 — statutes against,
191.
WITENAGEMOTE, proceedings at, i. 1.
WITHIPOLE, Sir E., aids the escape
of Lady Hatton and her daughter,
i. 297.
WOLSEY, Cardinal, patronizes Fitz-
James, Chief Justice, i. 160 —
banished from Court, 162 — his
speech to Mr. Justice Shelley, 162
— death of, at Leicester, 164.
WOMEN, treatment of, when con-
victed of larceny, i. 186— rights
and privileges of, ii. 220 — when
married, not allowed to sue as
spinsters, iii. 47.
WOOD, Sir George, Baron of the Ex-
chequer, trial and conviction be-
fore, at Lincoln Assizes, of an
editor of a country newspaper for
publishing a libel on the state of
military discipline, iii. 203.
WOOD, George, the eminent special
pleader, pupils of, iii. 101, 270 —
anecdotes respecting, 100.
WOODFALL, criminal information
against, ii. 476, 478, 485.
WORCESTER, battle of, i. 471, 473 —
serious accident at the Assizes of,
in 1750, ii. 287.
WYNDHAM.
WORSHIP, directory of public, framed
to supersede the Liturgy, i. 436.
WRAY, Sir Christopher, Speaker of
the House of Commons, i. 201 —
a Justice of Common Pleas, 202 —
Chief Justice of England, 203 —
conduct on several state .trials,
204 — his speech on trial of Secre-
tary Davison, 206 — death, cha-
racter, 207.
WRAY, Sir Cecil, contest by, for
Westminster, in 1784, iii. 27.
WRECK, right to claim of, denied,
ii. 417.
WRIGHT, Sir Martin, Justice of
King's Bench, death of, in 1755,
ii. 284.
WRIGHT, Sir Robert, his parentage,
depravity, ii. 53, 91, 95 — his
fraud and perjury, 96 — patronised
by Jeffreys and made Baron of
Exchequer, 97 — opposition by the
Lord Keeper, 98 — promoted to be
Judge in King's Bench, Chief
Justice of Common Pleas, Chief
Justice of King's Bench, 100 —
orders a deserter to be hanged
contrary to law — a visitor at Mag-
dalen College, Oxford, 101— a
member of High Commission
Court, 103 — conduct on the trial
of the seven Bishops, 104, 112 —
his sarcastic remark to the So-
licitor-General, 112 — his death
and burial in Newgate, 113 — his
name excepted from the Indem-
nity Act, 114.
WRIOTHESLY, Lord Chancellor, i.
174. — See Lives of the Chancellors,
i. 640.
WRIT de ventre inspicieudo, when
allowed, iii. 34.
WYNFORD, Lord, Chief Justice of
the Common Pleas, qualifications
of, as an Advocate and a Judge,
iii. 276, 291, 294— antipathy of
Lord Tenterden to, 288 — judg-
ment of, in Blundell v. Catterall
overruled, 298 — in Rex v. Harvey
and another, 305.
WYNDHAM, a lawyer of reputation,
consents to act as a Judge under
Cromwell, i. 444.
414
INDEX.
WYNNSTAY.
WYNNSTAY, Ode by Lord Kenyon
in praise of, iii. 4.
WYTHENS, Sir Francis, Justice of
King's Bench, removed for his
refusal to enforce martial law in
time of peace, in 1687, ii. 92,
129.
Y.
YATES, Mr. Justice, anecdotes of, ii.
289 — appointed a Judge of the
King's Bench, 395 — opinion on
the Common Law right of authors,
426 — his judgment in the famous
case of Pen-in v. Blake, 432 — ex-
changes into the Court of Common
Pleas, 433.
YORKE.
YEAR Books, antiquity and contents
of, i. 153, 156, 180, 339.
YELVERTON, Sir H., Attorney-Ge-
neral, prosecutes Sir E. Coke for
rescuing his daughter, i. 300 —
prosecuted in the Star-Ch amber,
and heavily fined, 305 — convicted
of corruption, 366.
YORK, Pdchard, Duke of, claim to
the throne by, i. 145 — death of,
146.
YORK, Grand Court of the Circuit
at, iii. 105.
YORKE, Hon. Charles, sudden death
of, ii. 291. — See Lives of the
Chancellors, v. 366.
YORKE, Mr. Redhead, prosecution
and conviction of, iii. 136.
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