A.D. 1718. HIS DECISIONS. 25 such a case happens, some great provocation must be supposed to have occasioned it, and, in the absence of any other, the Court will consider the true reason to be this difference in religion." n 66 Lord Macclesfield, reversing the decree of Sir Joseph Jekyll, decided the famous case of Forth v. Chapman, holding, that though a devise over of real property on the first devisee dying without leaving issue" is too remote, the construction being, "if there should be a failure of descendants at any time, however distant," the same words, when applied to personal property, shall be construed to mean, if the first taker die leaving no issue at the time of his death,” and therefore the bequest over is good." 66 A general pardon coming out, according to the fashion of that age, on account of some auspicious event in the royal family, with an exception of "all contempts and offences for which any prosecution was then pending, and which had been prosecuted at the charge of any private person," the question arose, whether gentlemen committed to the Fleet for running away with wards of Chancery were entitled to the benefit of it? Lord Macclesfield liberated them all, saying that their contempt, or offence, ended only in the punishment of the party offending, and not in relieving or redressing the prosecutor, as the marriages, though irregularly contracted, could not be dissolved, and the wards could not be restored to their former condition.P Lord Macclesfield established an important rule in favour of the female sex-that, though the wife's paraphernalia [jewels and personal ornaments] are subject to the debts of the husband, she shall be entitled to her paraphernalia where those debts are a charge on the real estate of the husband. Lord Chancellor: "Paraphernalia are not devisable by the husband from the wife, any more than heir-looms from the heir. Though the creditor may subject a specific legacy to his debt, n Vincent v. Fernandez, 1 P. W. 524. See other orders made under this statute for the maintenance of the children of Jews, by Lord * Macclesfield and Lord King, 1 Sand, Orders, 457, 524. o 1 P. W. 664. Lord Kenyon, in Porter v. Bradley, doubted the soundness of the rule laid down by Lord Macclesfield (3 T. R. 143); but Lord Eldon, in Crooke v. De Vandes, said that Lord Kenyon's dictum in Porter v. Bradley went to shake settled rules to their very foundation; and Lord Macclesfield's distinction must be supported, 9 Ves. 203. This distinction will hereafter be rendered immaterial by the "Wills Act," which enacts that "dying without issue" shall always mean at the death of the first taker, so as to give validity to the devise over; 7 W. 4, and 1 Vic. c. 26, s. 29. P Phipps, son of Sir Constantine Phipps, v. Earl of Anglesea, 1 P. W. 696. yet the legatee shall, in equity, stand in the place of the bond creditor or mortgagee, and the legacy is relieved. If the legatee shall have this favour in equity, much more shall the wife be privileged with respect to her paraphernalia, which are preferred to legacies. Wherever the creditors are sure of being paid, the paraphernalia shall be retained by the wife." In the case of Mr. Justice Eyre v. the Countess of Shaftesbury, in which Lord Macclesfield held, that where the guardianship of children is left to several persons, without saying "and the survivor of them," the survivor shall be guardian,―he entered most elaborately into the whole law of guardian and ward, and the jurisdiction of the Chancellor over infants even in the lifetime of their parents, expressing opinions which have materially guided the decisions of the court on this important subject down to our own time.' Commercial law in England was still in its infancy, and the contract of insurance was so little understood that a court of law would have allowed a merchant to recover on a policy, although at the time when he effected it he had intelligence, which he concealed from the insurers, that the ship had encountered a storm, and was probably lost. Lord Chancellor; "The merchant has not been guilty of any express misrepresentation, but he has not dealt fairly in this case. He ought to have disclosed to the insurers the intelligence he had of the ship being in danger; he feared that she was lost, though he had no certain account of it. The concealment is a fraud." Decree for the policy to be delivered up, with costs.* 66 Lord Macclesfield laid down doctrine with regard to Ireland that would now raise a rebellion in that country; saying that he would grant a sequestration to be executed there, as the courts of justice here have a superintendent power over those in Ireland, and a writ of error lies in the Court of King's Bench in England to reverse a judgment of the Court of King's Bench in Ireland." 99 t When Dr. Martin and Lady Arabella Howard, his wife, v. Nutkin, came before Lord Macclesfield, he must have been in a great Tipping v. Tipping, 1 P. W. 729; Puck have been not to the King's Bench in Engering v. Johnson, ib. 730. 2 P. W. 102. 8 De Costa v. Scandret, 2 P. W. 169. Fryer v. Bernard, 2 P. W. 261. I never could understand how this writ of error could have originated; for if Ireland were a colony, or a conquered country, the appeal would land, but to the King in council. Mollyneux accounts for it by an Irish act of parliament not extant (p. 111): it was abolished by 23 Geo. 3, c. 28. Lord Coke says, that on a judgment given at Calais a writ of error lay returnable into the Court of King's Bench in England. (4 Inst. 281.) A.D. 1718. HIS DECISIONS. 27 agony, for this was the last day he sat in court, and he well knew the disgrace which was impending over him. Yet he had self-possession to examine the case deliberately, and to dispose of it so as to make it a valuable precedent, which has been frequently quoted and acted upon. The plaintiffs lived at Hammersmith, very near the church, and were much disquieted by the ringing of a peal of bells at five o'clock every morning. They were about to remove to a distance, when it was agreed between them and the parish, at a vestry meeting, that, in consideration of their erecting a new cupola, clock, and bell, the five o'clock peal should not be rung during their lives or the life of the survivor. The new cupola, clock, and bell were erected, and for two years the agreement was observed by the parish; but at the end of that time, there being a revolution in Hammersmith, an order was made by the vestry that a peal should be rung every morning at five o'clock, according to ancient usage, and the churchwardens executed the order, the peal being rendered louder by the present of the plaintiffs. The Lord Chancellor granted an injunction against the ringing of any bells at that hour, on the ground that there was a meritorious consideration executed on the plaintiffs' side; that the churchwardens were a corporation, and might sell the bells or silence them; that the ringing of a peal of bells at five in the morning did not seem to be of any use to others, though of very ill consequence to the Doctor and Lady Arabella; and that the agreement which was beneficial to the parish, was binding on the parishioners and their successors." I ought to mention here, that while Lord Macclesfield was Chancellor the long protracted controversy arose between the celebrated Dr. Bentley and the fellows of his college, and that an application was made on their behalf by Dr. Colbatch for the interposition of a royal visitor to be appointed under the Great Seal. Of this affair we have the following amusing account by Bishop Monk, in his "Life of Bentley," showing that such applications to the "Keeper of the King's conscience," though judicial, were then dealt with rather on the principles of policy than of justice :– "With the Lord Chancellor, Colbatch had several personal interviews, and, at his desire, laid before him a detailed statement of the College grievances, and heard from him with great delight that it was u 2 P. W. 266. intended to advise the King to grant the full visitatorial power to the Bishop of Ely, and that the patent for this purpose would pass the Great Seal. At other times his Lordship intimated his opinion that the Bishop was already authorised to execute those functions. His chaplain, Zachary Pearce, who had daily opportunities of conversing with the Chancellor, encouraged Dr. Colbatch with the same constantly repeated hopes of his taking some decisive step in this business. But Lord Macclesfield was a politician, and an adept in the subtlest arts of political management. It appears to have been the feeling of the Ministry that Bentley, being a professed and active partisan of the Whigs, must not be abandoned in the hour of his necessity: at the same time it was seen that, if an absolute refusal were given to those who only prayed for common justice, the odium of the Master's proceedings would be transferred from himself to the Government. The Lord Chancellor continued for at least three years to amuse Dr. Colbatch with expectations that the prayer of the petitioners was immediately to be complied with. It may appear surprising that a man of sense, who knew the world, should have suffered himself to be so long deceived; but the candour and frankness of the language held by the great man, and the confidence reposed in his designs by Pearce, his chaplain, will account for the credulity of the Doctor and his confederates." 66 We must for the present take leave of Lord Macclesfield in the character of a judge, and view him acting avowedly as a statesman. Though a member of the cabinet, and a great personal favourite of the King, I do not think that he ever possessed much political influence. Stanhope and Sunderland seem to have brought forward the Dissenters' Relief Bill," and the "Peerage Bill," without consulting him. Walpole, entertaining a little jealousy of his personal interest with the King and the Hanoverian ministers, reposed no confidence in him, and when trouble came made no effort to save him. Yet the Chancellor appeared very secure in his place; and being in no danger from ministerial crisis or formidable rival, had it not been for the storm which unexpectedly arose from the abuses of the Court of Chancery, his Chancellorship would probably have been one of the longest, as well as most distinguished, in our annals. He took his seat on the woolsack at the first meeting of parliament after his appointment, when he had to read the King's speech to the two Houses, his Majesty having as yet made no progress in acquiring the language of his new subjects." Lord x Vol. ii. 79, 80. y I do not find any statement as to the manner in which the ceremony was con ducted when the King had to deliver an answer to the address of the House of Lords. It must have appeared rather ridiculous if A.D. 1722. SUPPORTS QUAKERS' AFFIRMATION BILL. 29 Cowper soon went into smart opposition, and Lord Macclesfield is said to have supported the measures of the Government with great vigour; but still the published Parliamentary Debates are so defective, that we know little of his style of eloquence. The London Magazine and the Gentleman's Magazine were shortly after established," in which, under feigned names, we have the speeches of the most eminent debaters on both sides by Samuel Johnson and other distinguished men, who began their career by this exercise. Till then we are confined to the meagre notices of speeches to be found in the "Historical Register," "Boyer's Political State of Europe," and "Timberland's History and Proceedings of the House of Lords." Jan. 1722. Macclesfield appears to have done himself much credit by defending the "Quakers' Affirmation Bill" against the Bishop of Rochester, who endeavoured to prove that none but Christians should be admitted as witnesses, and that Quakers are not Christians. When Atterbury's case came on, he successfully counteracted a scheme, supported by Lord Cowper, that to create a seeming grievance the Bishop should be forbidden, under a standing order of the House of Lords, to make any defence against the Bill of Pains and Penalties in the House of Commons; but soon after, I am afraid, he behaved ungenerously and disingenuously to his defeated predecessor. A committee of the House of Lords, appointed to inquire into the "Plot," presented a report insinuating that Lord Cowper was implicated in it, and he, in vindicating himself, had altogether denied its existence. A resolution being now carried, that the Lord Chancellor, in the name of the House, should return thanks to the Committee for their services, Macclesfield pretty plainly repeated the insinuation of Lord Cowper's complicity: said he, "Your application in going through so many papers of affected and studied obscurity, your candour and exactness in examining the persons concerned, and in representing what they said [this was what Lord Cowper had most bitterly complained of], the accuracy and judgment of your remarks, though subject to the cavils of those who are loath to have the truth found out, must give a sensible pleasure to every Lord who has heard your report read, by enabling him to form a satisfactory judgment concerning this abominable work of darkness which the actors have endeavoured to surround with impenetrable obscurity." the Chancellor first read the address and then the answer.-See 8 Parl. Hist. 502. z In 1731 and 1732. a 7 Parl. Hist. 942. c Ante, vol. v., p. 334. |