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own hot imagination was further heated with the spirit of Chap.

CXXX.IX

brandy. He secured a part of her fortune by lighting up in'

her breast the flame of enthusiasm, and undoubtedly he hoped in due time to secure the whole by kindling another flame of which the female breast is so susceptible; for the invariable style of his letters is 'all is to be completed by love and union.' Let it not be told in the streets of London that this preaching sectary is only defending his just rights. I repeat, let not such men be persecuted, but many of them deserve to be represented in puppet shows. I have considered this cause not merely as a private matter, but of public concernment and utility. Bigotry and enthusiasm have spread their baneful influence amongst us far and wide, and the unhappy objects of the contagion almost daily increase. Of this, not only Bedlam, but most of the private mad-houses, are melancholy and striking proofs. Let it be decreed that the defendant execute a release to the plaintiff of this annuity, and deliver up the deed for securing it. I cannot conclude without observing that one of his counsel, with some ingenuity, tried to shelter him under the denomination of 'an independent preacher.,' I have tried in this decree to spoil his 'independency''"

The finest judgment Henley ever delivered is supposed to Hh famous have been in the case of Burgess v. Wheate*, where the Burgess*! question was "whether the Crown be entitled by escheat to Wh,atea trust estate upon the cestui que trust (or person beneficially interested) dying without issue?" He called in the assistance of Lord 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 great credit for the rule he laid Perpetuidown, 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

* Eden's Rep. i. 177.

Chap, benefit of several existing persons successively for life, with

J _ 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 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

* Eden's Rep. i. 404.

with respect to the limitations of real property in family CHAP.

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settlements,—not subject to be questioned upon whimsical 1

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 Loicther v. Cavendish f, respecting the Censure words in a will which will carry leasehold estates along with {Jy**^TM freeholds, Lord Northington commented rather flippantly on Eldon. 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 His blunhe took immense pains to get wrong, holding that "a female p*u'ry c marrying under age might renounce the jointure settled upon, Drury. 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

* Life of Lord Northington, Appendix, II.

t Ambler, 357. \ Tliompsoti v. Lawly, 2 Bos. & Pull. 315.

§ Eden's Ilep. ii. 39.

VOL. V. O

case was heard, upon appeal, in the House of Lords, for Lord Hardwieke 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! 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 Hardwieke 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 Walpolc, 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 Seeker f, and Dick Grenville ? J 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, ' Twill not send for

* Alluding to the rebel Lords in 17-1<7. f Now Archbishop of Canterbury.

j Now Earl Temple, and, as Lord Privy Seal, having precedence of Dukes.

Garrick and learn to act a part'" * There is no doubt con- CHAr. siderable 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 canned his dislike of what he called "humbug" to a most unwarrantable length, and both 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.f 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?""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 Laurence 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 aft'ecting." J

• Letter to George Montague, Esq, 19th April, 1760. To another correspondent he says—" Lord Keeper was Lord High Steward; but was not at all too dignified a personage to sit on such a criminal; indeed, he gave himself no trouble to figure."

f I shall farther examine the case in the Life of Charles Yorke, who acted a most important part in it.

| Life, by Lord Henley, 44. Mr. Justice Buller, in passing sentence on Donellan, borrowed a great part of it verbatim.

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