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A.D. 1730.

ment, with the certainty of succeeding to the highest offices in the law.P In the session of 1730, he was called into action by the

combination between the Tories and discontented

Whigs, which began to annoy, without being formidable to, the minister. With the view of crippling the Austrians, with whom there were some differences pending, and who wished to negotiate a considerable loan in London, the Attorney-General brought in an Act to forbid the lending of money to any foreign power without the King's licence, and to compel all persons to answer a bill in Equity to discover if they were concerned in such transactions. This measure being strongly opposed by Pulteney, and by Sir Wm. Wyndham, Sir Philip. Yorke ably urged all that could be said in its defence. He tried to support it on the principles of the common law, according to which the King has the prerogative to prevent his subjects from entering into the service of a foreign Prince by the writ of ne exeat regno, or by proclamation to recall them, —urging that “their money, the sinews of war, might be more useful and dangerous than their persons. The Dutch might have the advantage of being the lenders of the money if we were not, but the measure was not to be judged by mere commercial considerations of profit and loss, but was framed with a view to a question of peace and war, and to the balance of power in Europe: it was only a temporary restraint, and might be compared to an embargo, which interfered with trade more directly, yet when necessary for the public safety was not complained of. As to the clause compelling a discovery it was indispensable, as without it, from the facility of secretly entering into such transactions, the Act would be wholly

« Sir,

P His position at this time may be estimated spatch in his business. But I will take upon by the following letter of introduction, me to say, that his conversation is so agreeaddressed to him from Tickell, the friend of able, that for your own sake you will endeaAddison :

vour to put a speedy end to the serious part of “ Thos. Tickell, Esq. to Si Philip Yorke, it, and fall into that, for which you have so Attorney-General.

nice a taste. I should not presume to take “Dublin Castle, Nov. 4, 1725.

this liberty, if I did not honour you more for

your humanity, than others can for your “Mr. Broughton, whom my Lord Lieuten- great talents; and if, upon that account, I ant has sent over with the Irish Money Bill

was not with the truest respect, and some private ones, has so often heard me

" Your most humble and most boast of being known to you, that he has de

“obedient Servant, sired me to introduce him to you, by a Letter.

“ THO. TICKELL. He indeed thinks too highly of my interest in

« To the honble. ST Pbilip Yorke, you, in imagining that my recommendation “his Majesty's Attorney-General.” may incline you to give him the utmost de

Bibl. Birch, Add. MS. 4325, p. 125.



A.D, 1732.

nugatory." It passed by a large majority; and Coxe says,

a sufficient justification of the measure was, that the want of money compelled the Court of Vienna to submit to terms of accommodation ;”; but the Dutch practice of selling ammunition to their enemies is probably more in accordance with true statesmanship as well as the principles of political economy.

T'he next time that Sir Philip Yorke's name is mentioned as taking a part in the debates, is in the session of 1732, when, upon a great muster of opposition under the auspices of Bolingbroke, the minister was so hard run for speakers as to be obliged to put up the Attorney-General to defend the augmentation of the army. Thus called upon, he was not quite so bellicose as he is said to have been on a subsequent occasion when Walpole is represented to have hailed him as a military officer; but he contended that, with a view to peace, the proposed force was necessary. “It is certainly,” said he, " the interest of this nation to render itself as considerable as possible amongst our neighbours, for the greater opinion they have of our strength and power the less apt they will be to undertake any expeditions or invasions against us, and the more easy it will be for us to obtain from them any advantages or immunities which we may think necessary for improving the trade and increasing the riches of the kingdom. The factions and divisions which are springing up at home, encourage our enemies abroad, and render a commanding attitude on the part of the government more indispensable. His Majesty only asks that which is required for the public safety, and any apparent disagreement between him and his parliament will be the signal for internal commotion and foreign war.” After the most furious debate which had been known since the reign of Queen Anne, the Minister had a majority of 241 to 171.

In the following year was brought forward the “ Excise Scheme,” when Sir Philip Yorke is said to have March 1, delivered one of the best speeches in favour of that 1733. measure; but in print it is extremely vapid. The most valuable part of it probably was where he showed, from his pro. fessional knowledge and experience as Attorney-General, that the laws of Exccise under which it was proposed to put the collection of the duties on wine and tobacco, were not more severe than the laws of the Customs from which they were to be

r Coxe's Walpole, vol. ii. p. 358.

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98 Parl. Hist. 187.

S8 Parl. Hist.


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transferred. He denied that the measure encroached on the constitution, “unless frauds in the collection of the revenue by long usage had become a part of the constitution,” and he maintained that “the only liberty which would be subverted was the liberty of smuggling.”

A violent opponent of the measure had during the debate asserted that its object was to revive the worst practices of Empson and Dudley. So grossly ignorant of English history was the Prime Minister, that he had been obliged to ask Sir Philip Yorke, sitting by him on the Treasury bench, - who Empson and Dudley were ; and he was afraid to trust himself (lest he should commit some ludicrous blunder) to repel the charge. Sir Philip now took occasion to reprobate the conduct of the wicked tools of Henry VII., and drew a comparison between his own past conduct and that of his predecessor, Mr. Attorney-General Dudley, which drew forth cheers from all parts of the House.- We ought not to doubt that the speech deserved the high praise bestowed upon it, the report of it which we have being prepared by some one who probably (according to the usage of the time) had heard not a word of it, and who, at all events, was evidently ignorant of the principle and details of the bill. Sir Philip had ample time to prepare, and he had strong motives to put forth all his strength; for now was the first occasion of his experiencing the danger of being turned out of office by a hostile majority.

He never again spoke in the House of Commons. Here he had now sat fifteen years, being heard respectfully on the rare occasions when he took part in the debate, but never having acquired much reputation as an orator. In addition to the prejudice then prevailing against him by reason of his profession, he was too didactic and logical for the understandings of the country gentlemen, and he did not sufficiently deal in personalities, and in clap-trap declamations, to suit himself to the somewhat mobbish taste of that assembly.

His elevation to the woolsack had been for some time anticipated from the age and growing infirmities of Lord King, whose immediate successor he was generally regarded. The secret history of the arrangements actually made on the resignation of Lord King, and the death of Lord Raymond, is not authentically known, and it would be vain to speculate farther

upon them."

The profession and the public were highly satisfied with

Ante, Ch. CXXVI.

18 Parl. Hist. 1287.

A.D. 1733-37.



the new Chancellor and the new Chief Justice. Talbot was considered of a more open and generous nature than his colleague; and all who knew him were pleased that he had recovered the precedence of which he had been unjustly deprived by Lord Macclesfield's partiality for another; while the learning, ability, and strict integrity which the world admitted in Sir Philip Yorke, though he was less remarkable for his amiable qualities, gave assurance that the duties of the important office of Lord Chief Justice of the King's Bench would be discharged in the most exemplary manner. He might not, himself, be perfectly contented with the allotment to him of the lower dignity, but this was no slight which he would have been justified in resenting; and, acquiescing with a good grace, he professed his determination to support the Government, and to back the new Lord Chancellor in the House of Lords to the utmost of his power. At the same time that he was made Chief Justice of England he was elevated to the peerage, by the title of Baron Hardwicke, of Hardwicke, in the county of Gloucester; and he was likewise sworn a member of the Privy Council. It has been said that he was now admitted into the cabinet; but this is certainly a mistake, although, on particular subjects, he was confidentially consulted by Walpole.

He took his seat in the Court of King's Bench in Michaelmas Term, 1733, and continued to preside in that Court above three years. No case of very great importance, either A.D. 1733— civil or criminal, came before him as a common-law 1737. Judge, but we know, as well by the general testimony of contemporaries as by the printed Reports of his decisions that he uniformly displayed, in addition to the strictest impartiality, much acuteness of intellect and great depth of legal erudition. Following such men as Holt, Parker, and Raymond, he found the principles of the old common-law well defined, and they were still tolerably sufficient for the exigencies of society. He assisted a little in adapting them to the new commercial transactions and changed manners which were gradually springing up: but to his successor, Lord Mansfield, was reserved the glory of relieving the poverty of our feudal jurisprudence from the spoils of foreign codes. Although Lord Chief Justice Hardwicke showed high capacity while he presided in a common-law court, and did ample justice to the suitors, he did not make his name very distinguished by any * See Biogr. Brit. “Hardwicke.”

y See “Reports Temp. Hardwicke," by Lee.


considerable improvements in the system which he there administered. He subsequently exhibited greater powers when he had to expatiate in a new field.

The business of the Court of King's, Bench now chiefly rested on his shoulders. Lee, his senior puisne, who afterwards succeeded him, was of some service from his knowledge of pleading; but Probyn, who came next, was a mere cipher; and Page, the junior, required to be kept in strict subjection, for he was ignorant, foolish, and presumptuous. In cases of importance, with a view to check the babbling of the puisnes, -after the arguments were finished, the Chief Justice insisted always that time should be taken to consider, and he afterwards delivered the decision in a written judgment, which he himself prepared. Thus he closed their mouths, unless they ventured to differ in opinion, which rarely happened.-So much for Lord Hardwicke as a common-law Judge.?

During his Chief Justiceship his political importance was greatly enhanced. Many had expected that he would succeed better as a debater in the Upper than he had done in the Lower House of Parliament, and this expectation was not disappointed. He now seemed to feel more at home, and, with increased confidence, his speaking rapidly improved. Not so graceful as Chesterfield, he was more argumentative and forcible; and after he had had a little experience in his new sphere, it may be truly said that, between the attainder of Bolingbroke and the appearance there of Lord Mansfield and Lord Chatham, the House of Peers presented no one who could attack or defend with more skill or success.

His first encounter was with Lord Chesterfield, who, smarting from his dismissal on account of his opposition to the Excise Scheme, made a furious attack


the Government, when an address of thanks was moved in answer to a message from the King, proposing an augmentation of the forces, in order to be prepared for a threatened war. Indulging in the common-places about the danger to liberty from military vio

z Horace Walpole says, that, while Chief law, than equity, Judge: “I have heard the Justice, “he had gained the reputation of late Lord Thurlow say, that he thought the humanity by some solemn speeches made on Earl of Hardwicke was more able as Chief the circuit at the condemnation of wretches Justice of the King's Bench, than he was as for low crimes ;" but I know not to what the Lord Chancellor; but I could never discover sarcasm refers, and I suspect that it is intro on what ground.”—Nich. Recoll. ii. 119. This duced to give point to the charge of inhu must have been with a view of lowering Lord manity on the trial of the rebel Lords.- Hardwicke in the latter capacity, rather than Lord Thurlow is represented as having exalting him in the former. thought Lord Hardwicke a better common

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