CHAPTER CIV. CONCLUSION OF THE LIFE OF LORD COMMISSIONER MAYNARD. Ar the meeting of the Convention Parliament, Maynard was returned by Plympton, as well as by Beralstone, and chose to serve for the former borough. From his great age and experience, he was looked up to as an oracle of constitutional law in the discussions which arose respecting the vacancy of the throne. The House, according to his advice, having gone into a grand committee "on the state of the nation," he strongly supported the resolution that "King James II., having endeavoured to subvert the constitution of the kingdom by breaking the original contract between King and people, and, by the advice of Jesuits and other wicked persons, having violated the fundamental laws, and having withdrawn himself out of this kingdom, has abdicated the government, and that the throne is thereby vacant." In answer to the objection that they were deposing the King, and making the monarchy elective, he said, "The question is not whether we can depose the King, but whether the King has not deposed himself. It is no new project; our government is mixed-not monarchical and tyrannous, but has had its beginning from the people. There may be such a transgression in the Prince, that the people will be no more governed by him." He admitted that the King being a papist did not thereby make himself incapable of the Crown, there being hitherto no law to that effect; but he insisted that by James's multiplied violations of the constitution, he had broken the contract between the Crown and the people, and that he was to be considered as civiliter mortuus, with this unexampled accompaniment, that being naturally alive his heir was not designated; and it devolved upon the two Houses of Parliament to restore the equilibrium of the constitution by appointing to the throne,-which they would best do by offering it to Protestants descended from the royal family, who might most worthily fill it for the public good.* This resolution passed by a vast majority in the Commons, but was far from being agreeable to the Upper House, where a vote for a Regent was very nearly carried. The Lords [A. D. 1689.] insisted that the word "deserted" should be substituted for “abdicated,” and that the clause respecting the "vacancy of the throne" should be entirely omitted. This dispute between the two Houses leading to a " Free Conference" in the Painted Chamber, Maynard was appointed one of the managers to conduct it on the part of the Commons, and he boldly combated the high Tory doctrines of the Earl of Nottingham, and the managers for the Lords. "When there is," said he, "a present defect of one to exercise the administration of the government, I conceive the declaring a vacancy, and provision for a supply of it, can never make the Crown *5 Parl. Hist. 36, 40, 45. elective. The Commons apprehend that there is such a defect now; and, by consequence, a present necessity for the supply of the government. My Lords, the constitution, notwithstanding the vacancy, is the same; but if there be an irreparable breach of the constitution, that is an abdication, and an abdication infers a vacancy. It is not that the Commons do say the Crown of England is always and perpetually elective; but it is necessary there be a supply where there is a defect, and the doing of that will be no alteration of the monarchy from hereditary to elective. As to the pretended Prince of Wales succeeding rightfully as heir, I say no man can now be called heir of James II. We have a maxim in law as certain as any other, Nemo est hæres viventis. His heir is now in nubibus. What shall we do till he is dead? The Crown cannot descend till then.' The Earl of Pembroke tried to answer this technical reasoning by saying, "I cannot directly name him that hath the immediate right; but it is enough to prevent a vacancy that there is, and must be, an heir or successor, let he be who he will.”—Maynard. "But your Lordship will neither agree that it is vacant, nor tell us how it is full. Is James King? Then obey him. But you allow that he is not to be obeyed. Then he is not King. Tell us, then, who is King, if King James be not. But if there be now no King, the throne is vacant.”—Pembroke. "Sure, Mr. Serjeant, you agree, that notwithstanding Charles II. was abroad at his father's death, and did not actually exercise the government, yet in law he was not the less heir for that; nor was the throne vacant."-Maynard. "That is not like this case, because there the descent was legally immediate; but there can be no hereditary descent during King James's life. Therefore, unless we declare and fill up the vacancy, there must be an everlasting war entailed upon us; his title continuing, and we opposing his return to the exercise of his prerogatives. Pray, my Lords, consider the condition of the nation till there be a government; no law can be executed, no debts can be compelled to be paid, no offences can be punished, no one can tell what to do to obtain his right or defend himself from wrong. You still say the throne is not void, and yet you will not tell us who fills it. If once you will agree that the throne is vacant, it will then come orderly in debate how it should, according to our law, be filled. If our law is silent, then we must look to the law of nature, (above all human laws,) and provide for the public weal in such an exigency as this." The two parties separated, probably without any change of private opinion among them; but the Lords, frightened by the horrors of anarchy which Maynard had painted, next day resiled, and sent a message that they agreed to the resolution of the Commons without any amendment. "The Declaration of Rights" soon followed, and William and Mary were upon the throne.* Maynard strongly supported the first measure of the new reign, which was by resolution to prevent the dissolution of the "Convention," 5 Parl. Hist. 72, 89, 90, 103. although it had been called-not by royal writs-but by letters from the Prince of Orange. He was conscious that the high Churchmen and the Tories had already forgot their recent dangers and deliverance, and, if a new parliament had been summoned, would generally have voted for adherents of the abdicated sovereign. He said, therefore, "On the consequence of this debate will be the safety of the nation, and of the Protestant religion. I think we are a parliament. What is a parlia ment but King, Lords and Commons? The convention in which I sat, 12 Charles II., resolved, that without a writ from the King we were a parliament. We acted on the greatest law in the world, which is recorded in the Twelve Tables, Salus populi suprema lex esto. We sat here before the King was declared, and much more may we now. There is a great danger in sending out writs at this time, if you consider what a ferment the nation is in; and I think the clergy are out of their wits; and I believe if the clergy had their wills, few of us would be here again. You will not declare yourselves no parliament, unless you are out of your wits. As for the clergy, I have much honour for high and low of them; but I must say they are in a ferment; there are pluralists among them, and when they should preach the gospel, they preach against the parliament and the law of England."* His advice. was followed, and there was no dissolution till the following year, when men's minds were more tranquillized, and William's success in Scotland had weakened the doctrine of divine right, although even then a majority of Tories was returned. The resolution being taken to separate the judicial from the political duties hitherto intrusted to the one individual who held the Great Seal, and to have several Judges sitting together to despatch the business in the Court of Chancery, the offer was made to the veteran Maynard to place him at the head of them. Although he was now in his 88th year, his mental faculties remained quite unimpaired. Such activity and spirits did he likewise possess, that, in spite of several generations of younger leaders who had successively sprung up to compete with him, his practice at the bar remained with him undiminished. Forgetting how short a period he could by the course of nature now enjoy it, he felt a severe pang when required to sacrifice his fees for an office which he dreaded might be very precarious. However, after some hesitation he accepted it, intending perhaps, after various examples of that age, if he should lose it, again to practise as an advocate, and to argue that all such of his judicial decisions as, when cited against him, should appear to impugn the positions he had to sustain for his new clients, were erroneous. His brother Commissioners, Keck and Rawlinson, though considered sound lawyers, were unknown to the public; and he had nearly as much éclat as if he had been appointed Lord Chancellor. They received the Great Seal in Hilary vacation,† and on the first * 5 Parl. Hist. 124, 128, 131. On account of the interregnum, Hilary Term had not been kept, and the administration of justice had been completely suspended. In consequence an act day of Easter Term they were duly inaugurated in Westminster Hall. "Before they entered upon any business, they took [APRIL 17, 1689.] the oaths usually administered to the Lord Chancellor or Lord Keeper (mutatis mutandis,) the book being held to them by the Master of the Rolls,* and the oaths read to them by the Clerk of the Crown." King James' Great Seal fished up from the river Thames was for some time used, but on the 23d of May an order was made by the King in Council for a new Great Seal, representing his Majesty and his spouse sitting together lovingly on the throne; and this being soon engraved, was used till Mary's death. Serious difficulties, however, arose respecting the jurisdiction and precedence of the Lords Commissioners; for, except during the Commonwealth, such an arrangement for the transaction of Chancery business had never been attempted, and no weight was given to Cromwellian precedents. To obviate these difficulties an Act was passed "for enabling Lords Commissioners of the Great Seal to execute the office of Lord Chancellor or Lord Keeper," which enacted that they should have the same power as the Lord Chancellor or Lord Keeper, two being required to put the Grand Seal to any instrument, and one being authorized to hear interlocutory motions-all having precedence next after Peers, and the Speaker of the House of Commons.† Maynard continued to hold his office along with Keck and Rawlinson till the end of Easter Term, in the following year. They were allowed to be diligent, patient, and upright, but their despatch of business did not give so much satisfaction as was expected. People began to suspect that Equity suits, differing so much from actions at law, were better adapted to the cognisance of a single judge: the Lords Commissioners sometimes differed in a manner not edifying: Maynard, without official political functions, still continuing a member of the House of Commons, used to attend there when his presence was needed in the Court of Chancery; and being deprived of the exercise which he had taken for above sixty years by walking up and down Westminster was passed (1 W. & M. c. 4,) "for renewing actions and process lately depending in the courts at Westminster, and discontinued by the not holding of Hilary Term, and for supplying other defects relating to proceedings at law," whereby it was enacted, among other things, that all offences committed during the interregnum, which was reckoned from the 11th December, 1688, to the 12th March, 1689, should be laid in indictments, to be instead of "contra pacem Regis," "contra pacem Regni." * Cro. Office Min. fol. 133. † 1 W. & M. c. 21. There are some curious entries in the journals respecting the progress of this bill through the Two Houses. A clause was introduced in the Lords to forbid the sale of the office of Master in Chancery, which "Lord Maynard" contrived to get thrown out. This might have induced Swift to write in the margin of his copy of Burnet, where an anecdote is related to Maynard's honour, "He was an old rogue for all that." See last edition of O. T. iii. 341. The bill was brought in and read a first time the 18th of March. The clause · about selling masterships was added in committee on the 25th of March; but, after a conference between the Two Houses on the 20th of June, was rejected, and clauses forbidding the sale of the office of Custos Rotulorum were substituted for it.-Lords' Journ. 1688-9. Hall, and making speeches at the bar, his health suffered, and his infirmities multiplied upon him. The printed Reports of Chancery during his year of office give us a very imperfect notion of his judicial powers, as they almost all begin the judgment with the words "Per Curiam," without distinguishing what was said by the several Commissioners. Once I find what I consider doubtful doctrine laid down "Per Lord Maynard,' "* that unless a submission to arbitration contains the words "ita quod an award be made de et super præmissis, &c." an award on a part is binding, although it leaves the residue of the controversy unsettled; but in the only other case in which his separate opinion was given respecting the right of the half blood to have administration, and an equal share of personal property with the whole blood,-the decree which he recommended being appealed from, after civilians and common lawyers had been heard on both sides, it was affirmed by the House of Lords.‡ There being then no statute to vacate seats in the House of Commons on accepting an office of profit under the Crown, or to disqualify any commoner from sitting in that assembly, Maynard not only continued to represent Plympton during the remainder of the Convention Parliament, but he was re-elected for the same place in the Parliament called in the spring of the following year, and he took rather a prominent part in the debates till he finally retired from public life. In the spirit of the Whigs of that day, he strongly supported the Bill for disarming Roman Catholics, saying, "We [MARCH 16, 1689.] are so mealy-mouthed and soft-handed to the Papists that it occasions their insolence. I think it is fitting that all Papists should resort to their own dwellings, and not depart without licenses from the next justices; and another thing, that all those of that religion bring all their fire-arms in, unless for the necessary defence of their houses, to officers appointed. I would not imitate their cruelty. I would let them have their religion in their private houses-but no harbouring of Priests or Jesuits. And if any Papist have a hand in firing houses, he should be compelled to help to rebuild them."§ The Lord Commissioner was carried away so far by religious zeal, that he not only spoke in favour of reversing the cruel sentence upon Titus Oates, but actually stood up for the veracity of that impostor, and seemed still alarmed by the perils of that Popish Plot.|| His next appearance is more creditable to him. other commoners had been detected in distributing a declaration of King James from Ireland, where Sir Adam Blair and [JUNE 13, 1689.] he was then established, denouncing the Prince of Orange as an *He was always so designated while Commissioner of the Great Seal, the title of "Lord" added to the Christian name being given to the Chief Justices, as "Lord Hale," "Lord Holt;" while in Scotland the custom was and is for a Judge to be called Lord with his family name, or the name of his estate, at his election, as "Lord Jeffrey," "Lord Corehouse." + Hide v. Cooth, 2 Vernon, 109. § 5 Parl. Hist. 182, 183. ‡ Crooke v. Watt, 2 Vern. 124. || Ib. 293, 294. |