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have been in the case of Burgess v. Wheate," where the question was, “whether the Crown be entitled by escheat to a trust estate upon the cestui que trust (or person beneficially interested dying without issue?” He called in the assistance of Lor Mansfield and Sir Thomas Clarke, who differing, he sided with the latter against the escheat, so as to leave the estate to the trustee discharged of every trust,-and his decision has given the rule ever since. But it proceeds on reasonings too technical and abstruse to be introduced here.
He likewise obtained greate credit for the rule he laid down respecting perpetuities, in the case of Duke of Marlborough v. Earl of Godolphin. The hero of Blenheim, endeavouring to retain after death a power beyond the limits allowed by law, devised his great estates to trustees for the benefit of several existing persons successively for life, with remainder to their sons in strict settlement; but directed his trustees, on the birth of each son of each tenant for life, to revoke the uses before limited to their respective sons in tail male, and to limit the estates to such sons for their lives:—°
Lord Keeper. “It is agreed on all hands that this clause is new, and that, although it has been privately fostered by a particular family, from whom it issued, it never has been adopted by conveyancers. In substance, the testator makes his great-grandson, the present Duke, who was at the date of the will unborn, tenant for life, with a limitation to his sons as purchasers in tail. It is agreed that this could not be done directly by words of limitation, because, though by the rules of law an estate may be limited, by way of contingent remainder, to a person not in esse for life, or as an inheritance, yet a remainder to the issue of such contingent remainder-man, as a purchaser, is a limitation unheard of in law, nor ever attempted, as far as I have been able to discover. Technical reasons, upheld by old repute and grown reverend by length of years, bear great weight and authority, but a new technical reason appears with as little dignity as an usurper just seated in his chair of state. The common law seemed wisely to consider that real property ought not to be put out of commerce, and should be left free to answer the exigencies of the possessors and their families, and, therefore, would not admit perpetuities by way of entails. The dissipation of young heirs, the splendour of great families, the propriety of annexing sufficient possessions to support the dignities obtained by illustrious persons, afford specious arguments for perpetuating estates by entails; but, in a commercial country, to damp the spirit of industry, and to take away one of its greatest incentives, the power of honourably
d Eden's Rep. i. 177. * Ibid. i. 404.
A.D. 1757–66. HIS DECISIONS. 321
investing its acquisitions, would produce all the inconveniences against which we have been guarding by fines and recoveries and other devices, now to be considered an essential part of our jurisprudence. The safety of creditors and purchasers requires that the law should be fixed and certain with respect to the limitations of real property in family settlements, – not subject to be questioned upon whimsical inventions, started (though by the ablest men) in order to introduce innovations in fundamentals.”
After treating the subject at great length, and with much ability, he decreed that the plaintiff, George Duke of Marlborough, was entitled to an estate in tail male, and not for life only, as John Duke of Marlborough had intended; and this decree, on appeal, was affirmed by the House of Lords."
In the case of Lowther v. Cavendish,” respecting the words in a will which will carry leasehold estates along with freeholds, Lord Northington commented rather flippantly on the ruling authority of Rose v. Bartlett, which afterwards drew down upon him this strong censure from Lord Eldon, under the decent disguise that he had been misreported: “I am not disposed to believe that Lord Northington ever made use of the expressions respecting Rose v. Bartlett which are attributed to him. We all know that he was possessed of great law learning, and a very manly mind; and I cannot but think that he would rather have denied the rule altogether than have set it afloat by treating it with a degree of scorn, and by introducing distinctions calculated to disturb the judgments of his predecessors, and remove the landmarks of the law.”"
But his greatest blunder was in Drury v. Drury,' where he took immense pains to get wrong, holding that “a female marrying under age might renounce the jointure settled upon her, and claim dower and thirds,”—contrary to the practice and understanding of the profession, and contrary to an obiter opinion of Lord Hardwicke, although there was no decision exactly in point. In the course of his rather arrogant judgment, he gave deep offence to the irritable race of conveyancers, by observing, in corroboration of a remark at the bar, that the conveyancers had not thought about it, “which is natural enough, their time being more dedicated to perusal than to thought !” But they had their revenge when the case was heard upon appeal, in the House of Lords, for Lord Hardwicke moved the reversal in a most crushing speech, in which he said “The opinion—the course of conveyancers is of great weight. They are to advise, and if their opinion is to be despised, every case must come to law. No 1 the received opinion ought to govern. The ablest men in the profession have been conveyancers.” Lord Mansfield concurred, and the poor Lord Keeper, having put the question, “So many of your Lordships as are of opinion that this decree be reversed will say, ‘CoNTENT; of the contrary opinion, ‘NoT CONTENT,” was obliged to say, “The CoNTENTs have it!” From George II.'s dislike to him, on account of his connection with Leicester House, and from his insignificance in the Cabinet, he probably would have remained a commoner during the rest of this reign, had it not happened that Lord Ferrers thought fit to shoot Mr. Johnson, his steward, and was to be tried before the House of Peers for the murder. A Lord High Steward was to be appointed for the occasion, and he must be a Peer. Neither Lord Hardwicke nor Lord Mansfield coveted such a painful pre-eminence, and it had been usual that the holder of the Great Seal, if a layman, should preside at such trials. In consequence, on the 27th of March, 1760, letters patent passed, creating “the right trusty and well-beloved Sir Robert Henley, Knight, a Peer of Great Britain, by the style and title of Baron Henley, of the Grange, in the county of Southampton.” The trial took place in Westminster Hall, on the 16th of April, 1760, and the two following days. “Who,” writes Horace Walpole, giving a most amusing narrative of it to his correspondent at Florence, “at the last trials" would have believed a prophecy that the three first men at the next should be Henley the lawyer, Bishop Secker," and Dick Grenville 2" The Judge and criminal were far inferior to those you have seen. For the Lord High Steward, he neither had any dignity nor affected any. Nay, he held it all so cheap, that he said at his own table t'other day, ‘I will not send for Garrick and learn to act a part.”" There is, no doubt, considerable exaggeration here, from the writer's indiscriminate love of abuse and ridicule; but it must be admitted that his Grace the Lord High Steward often carried his dislike of what he called “humbug” to a most unwarrantable length, and, both
f Life of Lord Northington, Appendix, II. h Thompson v. Lawly, 2 Bos. & Pull. 315. 8 Ambler, 357. i Eden's Rep. ii. 39. WOL. W.I. Y
k Alluding to the rebel Lords in 1746. April, 1760. To another correspondent he m Now Archbishop of Canterbury. says—“Lord Keeper was Lord High Steward; * Now Earl Temple, and, as Lord Privy but was not at all too dignified a personage Seal, having precedence of Dukes. to sit on such a criminal; indeed he gave him
* Letter to George Montague, Esq., 19th self no trouble to figure.”
A.D. 1760. TRIAL OF LORD FERRERS. 323
when sitting publicly on his tribunal, and in private society, did not scruple to violate the rules of decorum and decency. On this occasion, however, if there were a departure from the heraldic injunctions of “bowing to the cloth of state,” or presenting to his Grace his white wand “on the knee,” a striking example was given to the world of substantial justice.” Were such a case now to come before a jury, there would probably be an acquittal on the ground of insanity, although the noble culprit was actuated by deep malice towards the deceased,—although he had contrived the opportunity of satiating his vengeance with much premeditation and art, and although the steps which he afterwards took showed that he was fully sensible of the magnitude and the consequences of his crime. The Lord High Steward having received the answer from every Peer present, to whom he put the question “Guilty or not guilty o-" GUILTY, UPON My HONOUR,” himself standing uncovered at the chair, and laying his hand on his breast, said, “My Lords, I am of opinion that Lawrence Earl Ferrers is guilty of the felony and murder whereof he stands indicted, UPON MY HONOUR.” He then announced to the unfortunate Earl the unanimous verdict of his peers against him. The address of the Lord High Steward, delivered the following day in passing sentence, has been praised as “one of the best specimens of judicial eloquence in existence—being at once grave, simple, dignified, and affecting.”"
“Lawrence Earl Ferrers,
“His Majesty, from his royal and equal regard to justice, and his steady attention to our constitution, which hath endeared him in a wonderful manner to the universal duty and affection of his subjects, hath commanded this inquiry to be made upon the blood of a very ordinary subject, against your Lordship, a Peer of this realm. Your Lordship hath been arraigned; hath pleaded and put yourself on your peers, and they (whose judicature subsists in wisdom, honour, and justice) have unanimously found your Lordship guilty of the felony and murder charged in the indictment. It is usual, my Lord, for courts of justice, before they pronounce the dreadful sentence ordained by the law, to open to the prisoner the nature of the crime of which he is convicted; not in order to aggravate or afflict, but to awaken the mind to a due attention to, and consideration of, the unhappy situation into which he hath brought himself. My Lord, the crime of which your Lordship is found guilty — murder—is incapable of
P I shall farther examine the case in the portant part in it.
aggravation; and it is impossible but that during your Lordship's long confinement you must have reflected upon it, represented to your mind in its deepest shades, and with all its train of dismal and detestable consequences. As your Lordship hath received no benefit, so you can derive no consolation, from that refuge you seemed almost ashamed to take under a pretended insanity; since it hath appeared to us all, from your cross-examination of the King's witnesses, that you recollected the minutest circumstances of facts and conversations to which you and the witnesses only could be privy, with the exactness of a memory more than ordinarily sound; it is therefore as unnecessary as it would be painful to me to dwell longer on a subject so black and dreadful. It is with much satisfaction that I can remind your Lordship that though from the present tribunal, before which you now stand, you can receive nothing but strict and equal justice; yet you are soon to appear before an Almighty Judge, whose unfathomable wisdom is able, by means incomprehensible to our narrow capacities, to reconcile justice with mercy." But your Lordship's education must have informed you, and you are now to remember, that such beneficence is only to be obtained by deep contrition — sound, unfeigned, and substantial repentance. Confined strictly, as your Lordship must be, for the very short remainder of your life, according to the provisions of the late Act, yet from the wisdom of the legislature, which, to prevent as much as possible this heinous and horrid crime of murder, hath added infamy to death, you will be still, if you please, entitled to converse and communicate with the ablest divines of the Protestant church, to whose pious care and consolation in fervent prayer and devotion I most cordially recommend your Lordship. Nothing remains for me but to pronounce the dreadful sentence of the law, and the judgment of the law is, and this High Court doth award, that you, Lawrence Earl Ferrers, return to the prison of the Tower, from whence you came; from thence you must be led to the place of execution on Monday next, and when you come there you must be hanged by the neck till you are dead, and your body must be dissected and anatomised, and God Almighty be merciful to your soul!”
Henley acted with great propriety between the sentence and execution, doing what he could to gratify the unhappy criminal’s last wishes, without saving him from his deserved fate. Horace Walpole writes:—“Two petitions from his mother and all his family were presented to the King, who said, “As the House of Lords had unanimously found him
* His Grace thought it unnecessary to dis- and, let me add, of an abler Judge; but, with qualify himself as Baron Perrin did upon a my limited understanding, I must approve of similar trial for murder. The prisoner, after the verdict, and my duty requires me to prothe verdict, having still asserted his innocence, nounce upon you the awful sentence of the the Judge thus modestly began: “Prisoner, law.”—Ex relatione Lord Chief Baron Alezyou are soon to appear at the bar of a greater, ander.