Somers, yet I shall never suffer any consideration whatsoever to lessen that sense I have of your great goodness to me in taking care of my concerns to a degree I am not capable of doing it for myself: as likewise to confess how much I am ashamed, that when I understand so much hardship is undergone by others for me, I should not be able to set a helping hand in that part which is at present expected from me. I have but one short and true apology, that I am sorry how my state of health renders it at this season absolutely impossible for me, which I beg your Grace's belief of; since nothing else could in the least excuse me, and that only is the real excuse why I did not set out on the first intimation I had of your Grace's opinion in that particular. "I am, &c., "W. COWPER." He took refuge in Beralstone, which was entirely close, and was one of a class of boroughs so convenient and useful that we [A. D. 1702.] cannot help sometimes regretting the scandal which rendered their abolition necessary; for I fear that we cannot deny that they sent to parliament members more eloquent and better qualified to serve the state than the new boroughs with larger constituencies which have been substituted for them. Cowper continued to sit for the same place, while he was the leader of the Whig party in the House of Commons, till he accepted the Great Seal.* Though for a time deeply grieved by the loss of Hertford, he was now in high spirits on account of the reaction in favour of the Whigs, caused by Louis XIV.'s foolish recognition of the pretended Prince of Wales as King of Great Britain,-confidently expecting to see his patron, Lord Somers, forthwith holding the Great Seal, and his own speedy advancement to the office of Attorney or Solicitor General. But his prospects seemed for ever blighted on the accession of Queen Anne, when there was at first such a proscription of the Whigs that Lord Somers's name was struck out of the list of the Privy Council, and out of the commissions of the peace all over England. Cowper was even apprehensive that his silk gown would be taken from him;-and of six Whig King's counsel, four who had given particular offence to the high-church party were actually cashiered. However, his patent was renewed-perhaps upon the consideration that with a stuff gown, and standing without the bar, he would have maintained his professional ascendency. In the new reign, as a politician he followed the magnanimous example set him by his chief,-supporting ministers when they adopted the measures of their predecessors, and [Oct. 1702.] mitigating as far as he could the bad consequences of the illiberal domestic policy to which they for some time adhered. On the assembling of Anne's first parliament, the ghost of Sarah Stout was still supposed to haunt the streets of Hertford at midnight, on its way to the mill-race, —and he was again obliged to fly to Beralstone.t * Gwynne was returned for Totness on the Seymour interest. Although we know that he continued a frequent debater, and that as [A. D. 1702—1705.] of Commons he strenuously supported the war leader of the small Whig minority in the House with France, and opposed the bills against "occasional conformity," there is no shred preserved of any other speech he ever made while he remained a member of the House of Commons, except in the great privilege case of Ashby v. White. He had tried to resist the infamous party decisions on election petitions out of which the controversy arose; and when the obnoxious judgment of the Lords came to be discussed, while he allowed that the Commons must themselves decide upon the returns of members, he insisted that it would be no violation of their rights to allow an elector whose vote was maliciously refused, to maintain an action against the returning officer, and that the House of Lords was fully justified in deciding that such an action might be maintained. He contended that the elective franchise vested in an individual was a privilege; that the wilful violation of it was a private wrong, working a loss to the party injured; and that their being "injuria cum damno, it would be contrary to all principle, and a reproach to the jurisprudence of the country, if a remedy by action were not afforded. The House of Commons might rectify the return, and punish the returning officer for his offence against the public, but could give no compensation to the injured elector. He illustrated his position happily by the case of a battery, for which not only the wrong-doer may be punished by indictment, but for which a reparation in damages is given by civil action. He ridiculed the quibble, that by the ancient theory of the constitution the obligation to return members to parliament was considered a burden, when in reality the legitimate possession of power to interpose in the making of laws and in the government of the country was a noble distinction,—and as a vote for members of parliament was a right on which a high value was placed, he who was wrongfully deprived of it ought to have legal redress, in the same manner as for an injury to his person or his property. As for the argument that the Lords were deciding on the privileges of the Commons, he said, "The Lords have not judged the fact; they are bound as to the fact by the verdict, and they are unquestionably the judges of the law on a writ of error. And, therefore, as to what has been said that any fact of an election might come to be determined before the Lords, it is a great mistake, for they judge purely of the law on writs of error, as every one knows who knows any thing of our constitution. I fear we are taking from the subject in effect what the law hath adjudged his right, and we are seeking to reverse a legal judgment given in the subject's favour. Upon the whole, I am for so much of your resolution as serves only to declare that you have the sole power of determining the rights of all elections, and even the elector's right to vote, to the end to try who is your member, or to punish the officer as an offender against the constitution: so far is agreeable to the constant law and practice of parliament. But for that part of the resolution which relates to the restraining the electors from bringing their actions for the personal or private damage done to them, I think it is not agreeable to the constitution of parliament or the law of the land.' He was beaten by a majority of 215 to 97, and a dangerous wound was given to parliamentary privilege by this outrageous abuse of it. However, he greatly raised his reputation by this effort, and he was soon to be placed in the highest civil station which a subject could enjoy. CHAPTER CXIV. CONTINUATION OF THE LIFE OF LORD COWPER TILL THE ACCESSION OF GEORGE 1. THE general election which took place in the summer of 1705 having turned out very favourably for the Whigs, the Earl of Godolphin and the Duchess of Marlborough having soft. [A. D. 1705.] ened Anne's prejudices against that party, and all the world having grown sick of Lord Keeper Wright, it became clear that the Great Seal must soon be transferred to other hands. Lord Somers was still so obnoxious to the Queen and to the clergy, that the leaders of the Cabinet had not the courage to propose to make him again Chancellor. Northey, the Attorney General, was considered quite unequal to the post, even if there had been no objection to his politics; and there was a dread of another incompetent appointment after the loud and long-continued complaints against poor Sir Nathan, who was about to be cashiered. Harcourt, the Solicitor General, was a man of great talents, and of high honour; but he was a very strong and consistent Tory, and as it was thought that he would always be true to his party and his principles, his promotion would not have been endured by the rising Whigs. All eyes were turned to Mr. William Cowper, although he had never been a law officer of the Crown. He was by far the most distinguished Whig barrister; he had for some years been regarded as the leader of his party in the House of Commons; and, by his agreeable manners and gentlemanlike bearing, while a zealous politician, he had gained the general good will of his profession, and of public men. There was only one obstacle to his promotion-arising from the rumour * 6 Parl. Hist. 279. † When arguing for the privileges of the House of Commons in the famous case of Stockdale v. Hansard, I had more difficulty in dealing with Ashby v. White than with any authority cited against me. The mere decision of the House of Lords holding the action maintainable amounted to very little, as the resolution of the House of Commons did not in any shape appear upon the record; but it was not easy to contend, that a resolution of the House of Commons respecting their privileges is binding on all other tribunals, when it may be, and has been, carried to such an extravagant pitch.-See Lord Campbell's Speeches, p. 136. The court of law must at least be allowed to judge whether the resolution is on the subject of privilege, so as to be within the peculiar jurisdiction of the House. to which I have alluded, and which I shall afterwards be under the necessity of considering more minutely-that he had been guilty of bigamy. This charge had been most industriously circulated in society from the time that he became formidable to the Tories, and had been repeatedly stated in the libellous publications of the day, with many particulars and much declamation;-but although now brought forward against him, the Queen was persuaded by the Duchess of Marlborough, (who, without scandal, was supposed to be much touched by the beauty of his person,) that it was groundless;-and Godolphin, the Treasurer, was authorized to negotiate with him for his promotion to the woolsack.* They met by appointment in the morning of Thursday, the 11th of October, at Lord Halifax's.† The Great Seal being now distinctly offered to Cowper, who had been before sounded on the subject, he stipulated that he should have, like his predecessor, 20007. for his equipage or outfit, and a salary of 4000l. a year. He next demanded what his predecessor had not aspired to a peerage. There never hitherto had been an instance of making a man, taken from the bar, a peer on his first receiving the Great Seal, and he said he should be contented to receive this distinction at the "next promotion." To this Godolphin immediately assented, observing, that "he should have been created a peer immediately, if there had been any precedent for it." Some accounts say that Cowper likewise wisely bargained for a retiring pension of 20007. a year, as a compensation for the loss of his practice at the bar; but he does not himself mention this in his diary.§ At the same meeting the Treasurer showed him a private letter from Queen Anne, in which she intimated that "Rochester and Nottingham had so * "Some former passages of his life were thought to disqualify him for that office by which he was to be the guardian of the Queen's conscience: but these difficulties were easily overcome by the authors of his promotion, who wanted a person that would be subservient to all their designs, wherein they were not disappointed."-SWIFT, History of Four last Years of Queen Anne. † I have now the invaluable assistance of Lord Cowper's own DIARY. It begins this very day, and continues pretty regularly till the end of January following. There are a few entries in the beginning of February, 1706, but on the 11th of that month there is this notice between brackets, ["Here I broke off, wanting time, and eyes being sore,"] and there is a hiatus till 23d January, 1709. There is a single entry on that day, and no other is found till 27th August, 1710, about the time when the Whig government was breaking up; we have this notice: My great business and want of health, forced me to interrupt this course in great measure; but I hope, on quitting my office, to be at leisure to resume it, though in matters of less moment." Then follow some very interesting details respecting the change of government, and the attempts to retain him in the office of Chancellor. But the entries are very rare during the remainder of the reign of Queen Anne. On the accession of George I., we have an account of his receiving the Great Seal from that Sovereign; and there, unfortunately, the Diary closes. † At this time, these allowances were paid out of the Civil List, and were still matter of bargain with the sovereign on whom they fell. § "Oct. 1705. Mr. Cowper made Lord Keeper. Observing how uncertain greate officers are of continuing long in their places, he would not accept it unless 20007. a yeare were given him in reversion when he was put out, in consideration of his losse of practice. His predecessors, how little time soever they had the Seal, usually got 100,0007. and made themselves Barons."-Evelyn. behaved themselves that it was impossible for her ever to employ them again, and that she looked for support from the Whigs.' All preliminaries being settled, they proceeded together in a coach to Kensington. Having arrived there, the Treasurer was admitted into the Queen's closet, while Cowper remained in her chamber. Her Majesty soon came in and said to him, "Mr. Cowper, I am very well satisfied of your fitness for the office of Keeper of the Great Seal, and I am pleased to give it to you."-Cowper. "The honour your Majesty is pleased so graciously to bestow upon me, cannot make me more zealous and faithful to your interest than I have always been out of principle, the surest ground to rely on. I am very distrustful that I may not prove equal to so great a post; and all I can promise your Majesty with certainty is, that I will behave myself in it with industry and honesty." He then kissed her hand, and asked and obtained permission from her to go out of town the following day, and to remain in the country till Sunday. He had been advised to do so, that he might avoid as much as possible solicitation for places now in his gift. When he got home he found a summons from Secretary Hedges to attend a Council at Kensington, at six in the evening. Then and there the Great Seal, which had been in the Queen's own custody since the Saturday preceding, was formally delivered to him, with the title of Lord Keeper.* He took the oath of office, and he was sworn a Privy Councillor. Having disposed of all his places, "reserving nothing to himself, nor taking the value of one farthing reward" (which he seems to have considered a rare merit,) he went to his house in Hertfordshire, and remained there till Sunday morning. He then repaired to St. James's Palace, in compliance with the custom still kept up as in the reign of Charles II., that the Keeper of the Great Seal attended the Sovereign to chapel, and, fortunately, there being now the most perfect purity of manners at Court, there was nothing in this ceremony inconsistent with the character of a grave Judge. Lord Keeper Cowper, having conducted the Queen to her closet, carrying the Great Seal, "took his place in the chapel below: and after sermon, a little before anthem finished, went up to her closet and so returned before her to her lodgings again." The three following days were occupied in re * London Gazette.-" Kensington, Oct. 11, 1705. This day her Majesty in Council was pleased to commit the custody of the Great Seal to the Right Honourable William Cowper, Esq., one of her Majesty's learned Council in the Law, with the title of Lord Keeper of the Great Seal of England; and the usual oaths being administered to him, his Lordship took his place at the board accordingly." † Each oath cost him 267. Diary, p. 3. This custom evidently originated from the Chancellor having been an ecclesiastic, Confessor to the King, and Warden of the Chapel Royal. It was still preserved with lay Chancellors, and after the Reformation. We have a very graphic description of it from Paul Hentzer, a German, who published Travels in England in the time of Queen Elizabeth. Giving an account of her going to chapel at her palace at Greenwich, he says, "It was Sunday, when there is usually the greatest attendance of nobility. In the same hall were the Archbishop of Canterbury, the Bishop of London, a great number of councillors of state, officers of the Crown, and gentlemen who waited the Queen's coming out; |