A.D. 1725.

HIS CONVICTION.

45

it will, I am confident, have its full weight. I submit my whole life and conduct to your Lordships' judgment; and rely entirely on your justice for my acquittal."

At last, on the 25th of May, ninety-three Peers being present, the Earl being placed at the bar, and the Commons attending, Lord Chief Justice King put this question severally to every Peer, beginning with the junior, "Is Thomas Earl of Macclesfield Guilty of High Crimes and Misdemeanors charged upon him by the impeachment of the House of Commons, or Not guilty?" and the unanimous answer of all was, "Guilty, upon my honour." Lord Chief Justice King: "My Lords, your Lordships have unanimously found Thomas Earl of Macclesfield guilty of high crimes and misdemeanors charged upon him by the impeachment of the House of Commons." The defendant was then called upon to appear at the bar to hear the verdict, but the Duke of Devonshire, the Lord President, signified that he was so much indisposed that he was unable to attend. He appeared at the bar the following morning, when the verdict was solemnly intimated to him. He then attempted to make a speech in exculpation of his conduct, but, being interrupted by the managers, he threw himself on the mercy of the House. He was immediately ordered into the custody of the Gentleman Usher of the Black Rod; and the Lords proceeded to consider what sentence should be passed him.

upon

A friendly motion was made, that the opinion of the Judges be asked, "whether the sale of an office that hath relation to the administration of justice be an offence against the common law?" but it met with no encouragement, and was negatived without a division. All then agreed that he should pay a heavy fine, to be applied towards the relief of the suitors who had suffered from the insolvency of the Masters in Chancery, and the sum was fixed at 30,000l.

The grand question was, whether he should not likewise be disqualified to hold any place or employment in the state or commonwealth, upon which there was a long and animated debate: one side insisting that the loss of his office of Lord Chancellor, the heavy costs of his defence, the anxiety he had suffered, and the disgrace cast upon him, together with the proposed fine, would be punishment enough, considering the example set him by his predecessors; while the other contended, with vehemence, that, according to invariable precedent and clear reason, a person who, upon an impeachment

by the Commons, had been convicted of corruption in a high judicial office, should, for the protection of the present generation, and as a warning to posterity, be effectually prevented from filling the seat of judgment which he had dishonoured; and they pointed out many circumstances to show that this was an aggravated case, which would be most inadequately punished by a mere pecuniary fine. On a division, the numbers were equal, 42 to 42,-so, according to the rule of the House of Lords-præsumitur pro negante-the motion was lost. Then violent protests were drawn up and numerously signed against this decision. Still the sentence was not to be pronounced till judgment was prayed by the Commons.

The managers immediately received the unanimous thanks of their House by Speaker Compton, who said to them"You have maintained the charge of the Commons with a strength of reason, and beauty of expression, which would have gained you the highest applause in the most flourishing Grecian commonwealths:

- Nec dignius unquam

Majestas meminit sese Romana locutam.'

You have stopped the cries of orphans, and dried up the tears of the widow; even those who must ever be insensible of the benefits they receive-idiots and lunatics (and such only can be insensible of them)-will be the partakers of the fruits of your labours." He went on more particularly to thank them for having shown that the power of impeachment vested in the Commons might be practically used for the good of the people, and that "the sword of vengeance, which, when drawn by party-rage, when directed by the malice of faction, or wielded by unskilful hands, has too often wounded that constitution it was intended to protect, had, by their able management, turned its edge to its proper object, and had struck down a great public offender."

There was a party in the Commons, however, disposed to a mild course. They said that enough had already been done for the public by exposing the long-established abuses of the Court of Chancery, and that the Earl of Macclesfield ought not to be made a scape-goat. They therefore resisted the motion that the Speaker be ordered to go to the bar of the House of Lords and demand judgment; but upon a division this motion was carried by a majority of 136 to 65.

Accordingly, on the 27th of May, Speaker Compton, at

A.D. 1725.

SENTENCE AGAINST HIM.

47

tended by many members of the House of Commons, presented himself at the bar of the House of Lords to demand judgment. The Lord Chief Justice King thereupon directing the Gentleman Usher of the Black Rod to produce his prisoner, the Earl of Macclesfield was marched in, and, after low obeisances made, knelt until the Lord Chief Justice told him he might rise. The Speaker of the House of Commons then, having recited the impeachment and the proceedings, thus concluded:-"I do, therefore, in the name of the knights, citizens, and burgesses in parliament assembled, demand judgment of your Lordships against Thomas Earl of Macclesfield, for the said high crimes and misdemeanors." Lord C. J. King : "Mr. Speaker, the Lords are now ready to give the judgment you demand. Thomas Earl of Macclesfield, the Lords having unanimously found you guilty of high crimes and misdemeanors charged on you by the impeachment of the Commons, do now, according to law, proceed to judgment against you, which I am ordered to pronounce. Their Lordships' judgment is, and this high Court doth award, that you, Thomas Earl of Macclesfield, be fined in the sum of 30,000l. unto our Sovereign Lord the King, and that you be imprisoned in the Tower of London, and there kept in safe custody until you shall pay the said fine." The Earl of Macclesfield was immediately carried off by the Gentleman Usher of the Black Rod, and delivered into the custody of the Constable of the Tower of London. Here he was confined in the room which had been last occupied by his opponent the Earl of Oxford. Three days after, the King (it is said, with a sigh) ordered his name to be erased from the list of Privy Councillors.

There has been a disposition in recent times to consider that Lord Macclesfield was wrongfully condemned. "The unanimity of his Judges," says Lord Mahon, “might seem decisive as to his guilt; yet it may perhaps be doubted whether they did not unjustly heap the faults of the system on one man; whether Parker had not rather in fact failed to check gradual and growing abuses, than introduced them by his authority, or encouraged them by his example." I must s say, that although it is impossible not to pity a man of such high qualities when so disgraced, and although, with good

The Commons' Journals most studiously record, that the Serjeant at Arms attending the House of Commons stood at the bar on Mr. Speaker's right hand, with the mace on his shoulder; and that the Earl of Mac

clesfield, being placed at some distance on his left hand, was ordered "to kneel in the presence of the Commons."

s Vol. ii. 106.

luck, notwithstanding all he had done, he might have escaped exposure and preserved an untarnished fame,-yet, in my opinion, his conviction was lawful, and his punishment was mild. There can be no doubt that the sale of all offices touching the administration of justice (with a strange exception in favour of Common Law Judges) was forbidden by the statute of Edward VI., and every Chancellor who afterwards sold a Mastership in Chancery must have been aware that he was thereby violating that statute. It is a fallacy to say that he was fully justified by the example of his predecessors. Lord Cowper had abolished "New Years' Gifts from the officers of the court as well as from the bar, and had been followed in the same course by Lord Harcourt,-both Chancellors showing a desire to conform to the improving spirit of the age. In Lord Macclesfield's time, from the speculations caused by the South Sea mania, the abuses in the Masters' offices had become more flagrant. But, instead of trying to redress them, he increased their enormity by raising the price which the Masters were to pay for their places, and rendering it still more necessary that, for their own indemnity, they should traffic with the trust-money in their hands. Whoever takes the trouble of perusing the whole of the evidence will see that he was rapacious in his bargains, and that, with the view of bolstering up a system which was so profitable to him, he resorted to very arbitrary means to keep the public in ignorance of its consequences. His contemporaries could form a more correct opinion of his conduct than we can, and we should be slow to accuse them of harshness.

There is no pretence for saying that he fell a sacrifice to party resentment. It so happened that, at the time of his impeachment, party had actually disappeared in both Houses of Parliament. The two law lords, Lord Harcourt and Lord Lechmere, were present, and concurred in the verdict. High Churchmen must, no doubt, have rejoiced to see disgrace fall upon him who had gained distinction as the prosecutor of Sacheverell; but many zealous Whigs actively, though sorrowfully, joined in the prosecution. The Prince's friends were exasperated against him, but the King's friends joined in the sentence. Walpole certainly did gain great credit by allowing the prosecution fair play; but he neither originated nor unduly encouraged it. Macclesfield had been a useful and submissive ally of the existing Government, and there was no rival whom they desired to elevate in his place. Of all the impeachments

A.D. 1725.

IMPRISONED IN THE TOWER.

49

recorded in our annals, I find no one marked by more honesty of purpose, more practical ability in the manner in which it was conducted, or more benefit to the public in its result.

The mob were most highly delighted-and would have been still more pleased if, in his procession to the Tower, he had been attended by an axe with its edge turned towards him. In his way thither his ears must have been saluted with ballads which were sung in the streets, comparing him to Jack Sheppard, Jonathan Wild, and other famous freebooters, and giving him the preference over all in infamy, as, instead of rich travellers and stout wayfaring men, he robbed widows and orphans who were put under his care.*

He remained a prisoner six weeks, while he made arrangements for the payment of his fine. The money was at last raised, and, in pursuance of an address from the House of Commons to the Crown, was paid into the Court of Chancery to be applied towards making good the losses of the suitors from the misconduct and insolvency of the Masters.

The King being told that it was chiefly for fidelity to himself, in taking part with him against the Prince, that the Chancellor had been prosecuted, had signified to him by Sir Robert Walpole his intention to repay him the amount of the fine out of the privy purse as fast as he could spare the money, accompanying the message with gracious expressions of his sympathy and continued favour. One instalment of 1000l. was thus actually paid to him soon after, and the following year he received an intimation that he might receive 20007. more from the royal bounty whenever he chose to apply for it. Not

t The best apology I have met with for Lord Macclesfield is by Oldmixon-which, lest I should be supposed to have treated a great man harshly, I, in fairness, subjoin :"There had been for some time a murmuring against the insufficiency of the Masters in Chancery to answer the great sums lodged in their hands by the suitors in that court; and it was suspected, that the large sums they paid for admission into their places made their way more easy than it ought to have been, and very much lessened the inquiry into their qualifications for them. 'Tis true, this abuse had been long growing up to this enormity, and there was hardly any commodity in a market bought and sold more freely and openly than a Master in Chancery's place. The suitors' money, with which they paid no interest, brought them in great inVOL. VI.

terest from the funds; and the profits of the place being consequently doubled and trebled at least to what they were before, there was such an opportunity to enrich themselves by the advantage they made of the money they had in their hands, 'tis no wonder the Lords Keepers and Lords Chancellors doubled and trebled the price they were to pay for admittance, which had risen from 1000l. to 3000l. in my remembrance; who, being intimate with several of them, have heard this matter frequently discoursed of before there was any whisper of imputing it as a crime to the Lord Chancellor. But from a complaint in general, it came to a charge in particulars; and the Earl finding it was impracticable for him to prevent it, or keep the Great Seal under it, he resigned his high office."-Vol. iii. 758.

E