CHAPTER CXXII.

A.D. 1718.

CONCLUSION OF THE LIFE OF LORD MACCLESFIELD.

EARL COWPER, from whatever cause, having, on the 18th of April, 1718, resigned his office, the Great Seal was, for a short time, put into cómmission; the Commissioners being Mr. Justice Tracy, Mr. Justice Pratt, and Mr. Baron Montague. The general expectation was that the "good old Whig," Sir Joseph Jekyll, who was Master of the Rolls, with great reputation as an Equity Judge, and enjoying his faculties unimpaired, though well stricken in years, would have been appointed to succeed him,-the then Attorney and Solicitor-General not being very eminent in their profession. But on the 12th of May, to the great surprise of Westminster Hall and of the public, it was announced that Lord Parker, from being Lord Chief Justice of England, had become Lord High Chancellor. Lord Holt, Lord Mansfield, and Lord Ellenborough refused the offer which he accepted, and it would have been well for him if he had adopted the same course, as thereby he would have escaped the temptations and perils which proved his ruin. But I cannot condemn the choice which he made. He felt that he could creditably perform the duties of his new office, and he might think that he was likely to do more in it for his own reputation and for the public advantage than if he had remained a Common Law Judge. He made an excellent bargain for himself and his family -according to which, beyond the 20001. usually granted with the Great Seal for equipment, and 4000l. a year salary, and beyond other profits and presents, he actually received the sum of 12,0007. in ready money from the King, and a tellership of the Exchequer was bestowed upon his son. Three days after his appointment he led a grand procession from the Inner Temple to Westminster, and he was installed in the Court of Chancery with the usual solemnities. Afterwards,' probably

d Lechmere, the Attorney, accepted a peerage, and was soon forgotten. Thompson, the Solicitor, was dismissed for a false charge

of corruption against his colleague.

e Cr. Off. Min. 140 b.

f 15th Nov. 1721.

A.D. 1718.

ADDRESS FROM TRINITY COLLEGE.

21

in performance of a promise made to him, he was created Earl of Macclesfield; and it will be convenient that henceforth I should give him his new title, by which, as Chancellor, he is historically known.

Trinity College was now eager to claim the dispenser of church patronage as an alumnus, and the following address was voted to him :

"My Lord,

"As the great and eminent virtues and abilities whereby you have been long distinguished, and by which you have filled and adorned so many and so important stations, have been lately called to a further advance, and to display themselves in a yet more exalted sphere, so that we now behold your Lordship invested with supreme dignity, and entering upon the custody and conduct of the most arduous as well as the most illustrious province of the Law; and as we have this peculiar happiness and glory belonging to us, that, together with those great ornaments of the profession, the Lord Chief Justice. Cook and the Lord Chancellor Bacon, your Lordship's name is recorded among us, and that so noble a triumvirate were all members of our Society; we, therefore, the Master and Senior Fellows of Trinity Coll., esteeming it a duty we owẹ not only to y' Lordship, but to our Society, not to be silent upon so great an occasion, have appointed two of our Fellows, Dr. Baker and Dr. Rudd, personally to wait upon y' Lordship in our names and behalf; being with all veneration and respect, may it please yr Lordship, "Y Lordship's most devoted "Humble Servants,"

&c. &c. &c.h

Notwithstanding his high reputation, the old Equity practitioners grumbled at his appointment, because he had not been trained to draw bills and answers, and had never regularly practised at their bar. Although occasionally he had been called in to assist them in cases of importance, his regular routine had been to ride the Midland Circuit, and to sit first in the Court of Queen's Bench, and then in the Court of

This language seems rather to corroborate the conjecture that he had never resided at College as an undergraduate.

h One of the deputation was the Rev. Dr. Edward Rudd, and in his MS. Diary is to be found the following curious account of their reception:"1718, May 27. Dr Baker & I were sent by ye Mr & Senrs to wait upon my Ld Parker wth a Letter & a complemt from ye Coll: upon his beg prefer'd to be Ld High

Chan: because He was formerly of or Coll: we deliver'd ye letter on ye 29 & wre invited to dine wth His Ldsp on June 2d. beg Whitson-Monday, & bring wth us such of or Fellows as we cd meet wth in Town. Accordgly we went abt a doz: of us to Kensington, wre we wre entertain'd very nobly & very kindly by His Ldsp till abt 7 in ye Eveng. I return'd to Coll: on ye 4th."

Common Pleas, till he was made a Judge. Never having been Attorney or Solicitor-General, he had never, even for a single term, transferred himself to the Court of Chancery. The consequence was, that although he was regarded generally as a dungeon of law," yet, by those who knew little beyond the technical rules of Chancery pleading, it was thought he never could be made to understand them, and, therefore, that he was quite unfit for his office.

He turned out to be one of the greatest Equity Judges who ever sat in the Court of Chancery; and not only is he entitled to the equivocal compliment that none of his judgments were reversed, but his authority upon all points, whether of a practical or abstruse nature, is now as high as that of Nottingham, Somers, or Hardwicke.

I am sorry I cannot praise him for any correction of abuses in his Court. Well would it have been not only for his fame but for his fortune had he begun with making regulations against the sale of offices, and for securing the money of the suitors. Alas! he was under the dominion of a vice which was an effectual bar to all such improvements-AVARICE. This never seduced him to receive a bribe, but drove him as long as he could consider himself protected by existing usages, however objectionable, to regard the accumulation of wealth as the great object of his existence. Hence he not only proposed no Bill in parliament and issued no General Order for remedying the evils which must forcibly have struck him when he first examined the Masters' offices, and saw how the interests of the suitors were sacrificed by the prevailing system; but, for his own benefit, he carried venality in the disposal of offices to a pitch before unknown. When he must have been aware that the South Sea madness had taken possession of the functionaries acting under his control, to the peril of those who were entitled to his protection, he would not interfere, from the dread of touching his own emoluments,-till, in the midst of his sordid infatuation, he was suddenly precipitated from power, and (what he probably felt as a greater misfortune) he was stripped of a large portion of his ill-gotten gains.

There were loud complaints of his discourtesy to some counsel, and his partiality to others, particularly to Philip Yorke, afterwards Earl of Hardwicke, which gave deep offence to the bar, and hastened his own fall.

In deciding on his tribunal between litigating parties, how

A.D. 1718.

HIS DECISIONS.

23

ever, he displayed in every other respect the high qualities of a consummate magistrate. We are not told, and it would be idle to conjecture, the course of study he pursued for making himself master of Equity, or the method he adopted in thoroughly comprehending and preparing satisfactorily to decide the important cases which came before him. His leading judgments must have been the result of much labour and anxiety applied to each of them, as well as of profound learning and an extraordinary share of logical acuteness. They are chiefly to be found in the first and second volumes of Peere Williams, who is an accurate and skilful reporter, but unfortunately is too succinct in stating the rationes decidendi, and does not do justice to the methodical arrangement and nervous language for which Lord Macclesfield was celebrated.

I shall select a few of his decisions which I may hope to make intelligible to non-professional readers. An ancestor of the late Sir Francis Burdett devised his estates "in case he should leave no son at the time of his death" to his cousin, Francis Hopegood, and died leaving his wife pregnant without his knowledge [privement ensient]. She gave birth to a son -and the question was, which should have the estates?—the devisee contending that the testator had left no son at the time of his death, as it was then doubtful whether any child would be born of the widow and what the sex might be, so that the estates vested in the devisee, and could not be devested by the son's subsequent birth. But Lord Macclesfield, after consulting the Judges of the Court of Common Pleas, held that the infant, Sir Robert Burdett, though not actually born at the death of his father, yet in the eye of the law had existence in his mother's womb [ventre sa mere],-as if a pregnant woman takes poison to kill her child, and the child being born alive dies of the poison, she is guilty of murder; an unborn child therefore may take as heir or devisee, and here it could not be imagined that the testator ever intended to disinherit his own son: So the estates remained with the Burdetts.-There being a bequest, however, by the Duke of Devonshire, of a sum of money "to all the natural children of his son by Mrs. Heneage," and the question arising whether natural children born after the will should share, Lord Macclesfield held that even a child of which Mrs. Heneage was pregnant at the time of the will was excluded, for a bastard can only take

i Sir Robert Burdett v. Hopegood, 1 P. W. 486.

by its name of reputation, which it cannot acquire till after its birth.

k

An act was passed in the reign of Queen Anne," "to oblige the Jews to maintain and provide for their Protestant children, whereby it was enacted, that “if any Jewish parent, in order to compel his Protestant child to change his or her religion, shall refuse to allow such Protestant child fitting maintenance suitable to the degree or ability of the parent, and to the age and education of such child, it shall be lawful to the Lord Chancellor to make such order for the maintenance of such Protestant child as he shall think fit." A Jew had a daughter, Jessica, who turned Protestant. The rich father left the whole of his great wealth to charity. The daughter having reached the mature age of forty-four years, and being married to a Christian, petitioned for a maintenance under this statute. There were great difficulties in her way, for, supposing her to be still a child, it was objected, how could her father be said to have refused to allow her a maintenance, when she did not allege that she had ever asked him to do so? Lord Chancellor: "I strongly incline to think this case within the act. The petitioner is the Protestant child of a Jewish parent, though the parent be dead. Suppose the child of a Jew turns Protestant, and the Jew by will gives his estate to trustees upon a secret trust that if the child turn Jew the child shall have the estate, and not otherwise: as this would be clearly within the mischief, so every one must wish it to be within the meaning of the act. It is not said that the complaint shall be against the father, nor that the order shall be made upon or against the father, so that this case fits every word made use of by the legislature. Suppose, a petition being exhibited, the Jew had died pending the suit, having given all away from his Protestant child for having become Protestant, doubtless the order might be made against the executor. Then, as to the refusal of the parent, it is not to be intended that the Jew must make an actual refusal in words, for by that construction the statute might easily be evaded. If the Jew does by his will dispose of all his estate from his child, this is in law a refusal; and, unless some other reason appear, it shall be understood, because the child was a Protestant. The obligations of nature plead so strongly on behalf of a child, that when

k Metham v. Duke of Devon, 1 P. W. 529. in Arnold v. Preston, 18 Ves. 288. This decision was followed by Sir W. Grant, m 1 Anne, c. 30.

M. R., in Earle v. Wilson, 17 Ves. 528; and