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A.D. 1735-36.



lence, the “ Wit among Lords" maintained that as a standing army in time of peace was contrary to law, it could only be legalised by an act of parliament, so that the proposed address would be nugatory. Lord Hardwicke immediately followed, and thus began :

As the noble Earl who has just sat down has based his objections to the motion so much on legal and constitutional grounds, perhaps, my Lords, I may be excused in now offering niyself to your Lordships' notice, although I must confess that the marshalling of troops, and the sufficiency of military establishments, are not subjects with which I have ever been familiar. While the King by his prerogative may enlist soldiers when he pleases, I agree that a standing army cannot be maintained in time of peace without the authority of parliament, because of his own authority he could not punish them by martial law, nor could he raise funds for their support. But we have passed the

Mutiny Bill,' and we shall pass the Appropriation Bill,' by which the army may be disciplined and paid, -and, with great submission to the noble Earl, no farther legislation will be necessary to gain the object recommended by the message from his Majesty. Under such checks, the maintenance of a sufficient force to preserve internal tranquillity, and to command the respect of foreigp nations, while it is indispensable for the protection of our persons and our property, can raise no danger to liberty. Being summoned here to advise his Majesty de arduis regni, he now consults you whether the existing force is sufficient? If you are of opinion that it ought to be augmented, you will say so by the address which has been moved. According to the usage of parliament the Crown and the two Houses communicate by message and address; from the usage of parliament we know the law and the constitution,—and there is no pretence for the ingenious suggestion of the noble Earl, that on such an occasion you are to proceed by an act of parliament."

He then went into the general merits of the question, and from the state of Europe and our foreign relations showed the prudence as well as the legality of the proposed measure.a

In the session of 1735 Lord Hardwicke is not mentioned as taking part in any debate except upon the bill respecting the withdrawing of troops from parliamentary elections --when he tried to calm the fears that were entertained of the military overawing the electors, and to show how little necessity there was to provide new punishments for such offences.b

The following year he rendered essential service to the public by supporting a bill to amend the mortmain acts,

a 9 Parl. Hist. 538.

b Ibid. 886–910.


which, instead of being repealed (as some now wish), will I hope be extended to bequests of personal property,-for it is essentially necessary in all cases to guard death-bed from improper solicitations, by which superstition may be encouraged, and those for whom dying persons ought to provide may be left destitute. He next opposed and threw out a well-meant but impracticable bill for regulating the payment of tithes by Quakers, which seems to have excited very great interest at the time, but which, from the general commutation of tithes, is now unimportant.

The last speech he made while Chief Justice, was in a debate which took place a few days before the death of Lord Talbot, on the murder of Captain Porteous at Edinburgh, and the riots which had lately occurred in different parts of England. He now took occasion to refer to the explosion of gunpowder, and the dispersion of libels which had happened the preceding term in Westminster Hall. Between one and two in the afternoon, while all the courts were sitting, a loud report was heard, and the Hall was filled with smoke. This was found to be an ingenious device for dispersing a mass of libels on the government. Some of these being carried into the Court of King's Bench, and shown to the Chief Justice, he immediately made a comment upon their wickedness, ordered them to be laid before the Grand Jury, who were then sitting, and prevailed upon the Queen, acting as Regent, to offer a large reward for the discovery of the offender. The author of this “Gunpowder Plot” turned out to be a crack-brained, nonjuring parson, who had acted without any associates,--s0 that the affair was laughed at, -and it had been treated with some ridicule by the opposition peers. The indignant Chief thus expressed himself :-“ The attempt which noble Lords opposite make the subject of their jests, was certainly one of the most audacious affronts ever offered to an established government, and was levelled directly at the illustrious family now upon the throne. I do not mean, my Lords, the powder or rockets then blown up, for I do not believe that the guilty contriver meant to destroy the Hall, or to injure any one in it; but I mean the scandalous and seditious libels spread about the Hall by the explosion, and afterwards dispersed over the whole of this vast metropolis. These libels not only

c9 Parl. Hist. 1119. d Ibid. 1218. ing up at eleven, met at nine and sat till two.

e Hours had now greatly altered ; and the For many years after, however, there were Courts, instead of meeting at seven and break- post-prandian sittings.



reflected most indecently on the proceedings of the two Houses of Parliament, but denied his Majesty's right to the crown, and asserted the Pretender to be our true and only lawful sovereign. If vigorous steps had not been taken to detect and punish the offender, the world would have believed that the established government was so feeble that it might be insulted with impunity, and this insult would soon have been followed up by an organised insurrection, and by foreign invasion.” Having commented upon the death of Captain Porteous, which he denounced as an atrocious murder, the authors of which must be brought to condign punishment,” he described the formidable nature of the riots in different parts of England, and justified the suppression of them by the military. He strongly combated the notion that there was anything illegal in employing soldiers to preserve the public peace.

“ I am surprised, my Lords,” said he,“ to hear it said that if the King's troops should now and then, upon extraordinary occasions, be called to the assistance of the civil magistrate, we should on that account be supposed to live under a military government. I hope it will be allowed that our soldiers are our fellow-citizens. They do not cease to be so by putting on a red coat, and carrying a musket. Now, it is well known that magistrates have a power to call any subject of the King to their assistance, to preserve the peace, and to execute the process of the law. The subject who neglects such a call is liable to be indicted, and, being convicted, to be fined and imprisoned for his offence. Why, then, may not the civil magistrate call soldiers to his assistance, as well as other men? While the King's troops act under the directions of the magistrate, we are as much under civil government as if there were not a soldier in the island of Great Britain. The calling in of these armed citizens often saves the effusion of innocent blood, and preserves the dominion of the law.”[

On this day Lord Talbot, who took an active share in the debate, was in excellent health, and seemed likely for many years to fill the office of Chancellor, establishing a reputation as the greatest Equity Judge of the century in which he flourished. If these expectations had been realised, Lord Hardwicke would have attracted little comparative notice,

bot was present in the House, and presided 8 It appears from the Lords' Journals, as Chancellor. that down to the 9th of Feb. 1737, Lord Tal

19 Parl. Hist. 1294.

and, having gained no conspicuous place in history, would only have been recollected by lawyers, like Lord Raymond, as an eminent common-law judge. But he was destined to be nearly thirty years a cabinet minister,—to form cabinets himself,and, a century after his death, to have a statue erected to his memory by the English nation as the greatest contributor to our Equity code.

On the day Lord Talbot died, the Great Seal was delivered by his executors into the hands of George II. at St. James's Palace. There never was any doubt as to his successor, for Lord Hardwicke was now regarded as decidedly the most useful man to be introduced into the cabinet and to preside on the woolsack as Chancellor, - and he himself, placing just confidence in the stability of the administration, did not hesitate to agree to a move which promised to gratify his love of fame, his love of power, and his love of money. But there being some difficulty with respect to salary and pension, and other accompanying arrangements requiring consideration, the Great Seal remained for a whole week in the personal custody of the King."

Meanwhile, as Parliament was sitting, and there was no Lord Chancellor or Lord Keeper, it was necessary to provide a Speaker for the House of Lords, and the Great Seal, while in the King's possession, was (somewhat irregularly) put to a commission authorising Lord Hardwicke to act in that capacity. He accordingly did act for several days as Speaker without being Chancellor. During this interval, it is related that Walpole resisting some of Hardwicke's demands, said to him by way of threat, “I must offer the Seals to Fazakerly.” • Fazakerly!' exclaimed Hardwicke, “impossible! he is

h This is the last instance of such an occur supply the room and place of Lord Chancellor rence. Since then no Chancellor has died in in this House.' office; and the usual course has been, that the “Feb. 11.-The Lord Hardwicke sat Speaker Great Seal has been surrendered up by the by virtue of his Majesty's commission." On outgoing Chancellor at a Council, and, at the the 11th the House was adjourned to the same Council, has been delivered to his suc 16th. cessor.

“Feb. 16.— The Lord President signified to i This, on principle, seems as objectionable the House that the Lord Chancellor being as the act of Charles Il. in sealing Lord dead, bis Majesty had been pleased to grant Danby's pardon with his own hand. See another commission under the Great Seal to ante, vol. iv. p. 260.

the Lord Hardwicke to supply the room and k “Feb. 10.- The Lord Chancellor being place of the Lord Chancellor or Lord Keeper absent, the Lords were informed by the Duke of the Great Seal in this House during his of Newcastle that his Majesty had been Majesty's pleasure.” This is the irregularly pleased to grant a commission under the sealed commission. On the 21st Feb. Lord Great Seal to Philip Lord Hardwicke, Lord Hardwicke sat as Lord Chancellor. Chief Justice of the Court of King's Bench, to

A.D. 1737.



certainly a Tory !—perhaps a Jacobite !”

" It's all very true," coolly replied Sir Robert, taking out his watch, " but if by one o'clock you do not accept my offer, Fazakerly by two becomes Lord Keeper, and one of the stanchest Whigs in all England.” The bargain was immediately closed, and Lord Hardwicke was contented with the promise that the next Tellership should be bestowed upon his son.

Sir John Willes, the Attorney-General, being provided for by being made Chief Justice of the Common Pleas, and it being settled that Lee should be Chief Justice of the King's Bench, and that Sir Dudley Ryder and Sir John Strange should be the new Attorney and Solicitor-General, -on the 21st of February the Great Seal was delivered to Lord HARDWICKE, with the title of Lord Chancellor. However, he continued Chief Justice of the King's Bench till the commencement of Easter Term, and on the first day of that Term, after a grand procession to Westminster Hall, attended by Sir Robert Walpole and many of the nobility, having been sworn in and transacted business in the Court of Chancery, he went into the Court of King's Bench, and there delivered a judgment in a case which had been previously argued, --so that he had the glory of presiding on the same day in the highest civil and the highest criminal Court in the Kingdom.m

m Memorandum--that on Monday, the same time in Council, and took his place ac14th day of February, 1736-7, Charles cordingly; and bis Lordship sat in Lincoln's Lord Talbot, Lord High Chancellor of Inn Hall during the Seals after Hilary Term, Great Britain, departed this life; and, on the but he was not sworn in Westminster Hall evening of the same day, the Great Seal was till the 27th day of April, 1737, being the first delivered by the Duke of Newcastle to his day of the then next Easter Term, when bis Majesty, who kept it in his custody till Lordship took the oaths of allegiance and Monday, the 21st of the same month of

supremacy, and the oath of office, the Master February, during which time there was no of the Rolls holding the book, and the deputy thing sealed but a commission appointing clerk of the Crown giving the oaths. After Philip Lord Hardwicke Speaker of the which, the Attorney-General moved that the House of Lords during pleasure; and, on the oath might be recorded, but his Lordship did said 21st of February, his Majesty was graci- not take the oath of abjuration till another ously pleased to deliver the Great Seal to the day, in the King's Bench.”-Roll, 1727aforesaid Pbilip Lord Hardwicke, with the 1760. title of Lord Chancellor, who was sworn at the

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