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CHAP.

cxxx.

of conducting Excise prosecutions in the Exchequer.

Ex-officio informations for libel.

he is universally lauded. "Though advocate for the Crown, he spoke," says one contemporary, "with the veracity of a witness, and the impartiality of a judge." When defending Walpole's Excise scheme against the misrepresentations of its opponents, he not ungracefully appealed to his own practice in prosecuting those who attempted to defraud the revenue and to injure the fair dealer; pronouncing a eulogy upon himself to which, we are told, "the whole House assented with universal applause."

He was not so fortunate in his prosecutions for libel. In his time sprang up the controversy respecting the rights of juries, which was not settled till the close of the eighteenth century. He contended for the doctrine, that the jury were only to decide upon the sufficiency of the evidence of publication, and upon innuendoes; i.e., whether particular words or abbreviations in the alleged libel had the meaning imputed to them by the indictment or information, as, whether "the

K g" meant "our Sovereign Lord the King;" but that

the lawfulness or criminality of the writing prosecuted was pure matter of law for the opinion of the Court. The Judges coincided with him in their directions, but juries were sometimes rebellious. The obnoxious journal of that day was the "Craftsman," conducted by Bolingbroke, Pulteney, and the principal leaders of the opposition to Sir Robert Walpole. Sir Philip Yorke succeeded in obtaining a conviction in the case of the famous Hague letter, written by Bolingbroke*; but he was foiled in his prosecution of a subsequent violent attack upon the Government, supposed to be from the pen of Chesterfield, for though the Chief Justice laid down the same law, and there could be no doubt about publication or innuendoes, the jury, very much approving of the sentiments of the supposed libel, and thinking them not only innocent but laudable, found a general verdict of not guilty. It was then that Pulteney composed his famous ballad, with the oft-quoted stanza, —

• 17 St. Tr. 625.: and sec a very amusing account of this trial by Lord Mansfield, 21 St. Tr. 1037. "There was a great concourse of people; it was a matter of great expectation, and many persons of high rank were present to countenance the defendant"

"For Sir Philip well knows, CHAP.

That his innuendoes CXXX.

Will serve him no longer

In verse or in prose;
For twelve honest men have decided the cause,
Who are judges alike of the facts and the laws." *

But, considering how the law of libel had been laid down by
Lord Holt and other Judges deemed constitutional, I believe
that Sir Philip is to be deemed forbearing in instituting pro-
secutions against the press, and mild in conducting them, f

While Attorney General, he was not entirely absorbed in He writes a the routine of official and professional business. He con- on^e'6' trived to have leisure, not only to attend to the literature of judicial the day, but when occasion required, to investigate tho- of'the0'" roughly, by a reference to rare books and ancient records, Master of questions respecting our judicial history. In consequence of some clashing of jurisdiction between Lord King as Chancellor, and Sir Joseph Jekyll as Master of the Rolls, he wrote and published "A Discourse of the Judicial Authority belonging to the Office of Master of the Rolls," which is full of recondite learning, and on which the declaratory act was passed, placing the jurisdiction of " His Honour " on its present footing, J

His first appearance as Attorney General in the House A.o. 1723. of Commons, was in conducting the bill of pains and penal- p'"^»^ ties against Bishop Atterbury, by which that learned and for the factious prelate was banished for life, and it was made high ^ Autm!"' treason to correspond with him. There was no difficulty in °ury.

* The two last lines were misrepresented in the Dean of St. Asaph's case by Lord Mansfield ; who, to suit his purpose, or from lapse of memory, said Pulteney had admitted that "libel or no libel?" was a question only for the Court, by saying in his ballad —

"For twelve honest men have decided the cause,
Who are judges offact, though not judges of laws"

—21 St. Tr. 10S7.

+ Lord Chesterfield thus speaks of him as a law officer of the Crown: "Though he was Solicitor and Attorney General, he was by no means what is called a prerogative lawyer. He loved the constitution, and maintained the just prerogative of the Crown; but without stretching it to the oppression of the people. He was naturally humane, moderate, and decent; and when by his employments he was obliged to prosecute state criminals, he discharged that duty in a very different manner from most of his predecessors, who were too justly called the blood-hounds of the Crown."

I 3 Geo. 2. c. 30.; 3 Bl. Com. 450.

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producing a moral persuasion of the existence of the plot to bring in the Pretender on 'which it was founded, but no ingenuity could justify the departure from the rules of evidence established for the safety of the subject, or an attempt to punish, " by a ministerial majority, where there must have been an acquittal before the regular tribunals of the country. The Attorney General had to carry through similar bills against Plunket and Kelly, implicated in the conspiracy. In support of the last, he is said to have been particularly energetic, but no fragment of his speech is preserved.*

In the year 1725, Sir Philip was placed in a very disagreeable predicament by the impeachment of his patron — originating, as some thought, in the Chancellor's violent predilection for Sir Philip himself. He has been accused of heartlessness and ingratitude on this occasion, and of standing a silent and unconcerned spectator of the distress of the man to whom he owed all his advancement in life, f But I think the charge is unjust, or greatly exaggerated. If, by resigning his office, he could have become the strenuous defender of his patron, with the remotest chance of saving him, it would have been his duty to have made the attempt. But the current ran so strong against the denounced "trafficker in judicial offices and robber of widows and orphans," that to stem it was impossible,—and useless self-immolation could not be demanded from any one. The Commons were almost unanimous for the impeachment, although some thought there ought to have been a previous inquiry by a committee. When there appeared

« See 3 Pari. Hist. 54—293.; 16 St. Tr. 323—693. Swift tried to revenge his friend Atterbury by ridiculing this plot in "Gulliver's Travels," published soon after: "Another professor showed me a large paper of instructions for discovering plots and conspiracies against the government. He advised great statesmen to examine into the diet of all suspected persons, ' their time of eating, upon which side they lay, with what hand,' &c.;" and then he describes a certain method "by an examination of the tjecta, of ascertaining whether the design of the traitor be to murder the King, or only to raise an insurrection, or to burn the metropolis."— Voyage to Laputa, ch. vi. Kelly having been confined thirteen years in the Tower, was allowed to make his escape. Atterbury, it is well known, died in exile; and when his body came over for interment, the coffin was opened at the Custom House, "lest it should be made the medium of a treasonable correspondence, contrary to the act of parliament."

f Cooksey, 73.

an opening for embarrassing the proceeding by a motion to CHAP, recommit the articles of impeachment, Sir Philip Yorke cxxXstrenuously, though ineffectually, supported it against Serjeant Pengelly, and Sir Clement Wearg, the Solicitor General.

On the appointment of managers to conduct the prosecution at the bar of the House of Lords, the Attorney General ought to have been of the number, but he begged to be excused on account of the private friendship subsisting between him and the late Lord Chancellor; and we are told that he had great "difficulty in obtaining his request." * It is not easy to specify any other step he could have taken to show his sympathy. Yet I confess, I should have been gratified to have heard that he tried to turn the tide of public opinion, by a pamphlet " On the Sale of the Office of Master in Chancery, proving that it has been at all times transferred for a valuable consideration," or that he had made one gallant speech in his place in the House of Commons, for the man who had such claims to public applause, and who had drawn down ill will upon himself by befriending the friendless. Surely Sir Robert Walpole, who was not without generosity of sentiment as well as good nature (although he was anxious to rescue his government from the imputation of screening high delinquency), would not have discarded his Attorney General for one solitary indiscretion. At all events, it would have much consoled mo to have known that Sir Philip visited Lord Macclesfield in the Tower, was in the habit of cheering his retreat at Derby, and showed a grateful solicitude to vindicate his memory. But I am afraid that he left the condemned Chancellor to his fate, like " others whom his former bounty fed,"— eager only for his own aggrandisement.

I must now pursue the prosperous career of the wary Sir Yorke dePhilip. Having, upon the introduction of Lord Maccles- *01'{TM6" field, made the acquaintance and gained the good graces of Duke of the "Duke of Newcastle, on the fall of his first patron, Newcastlehe devoted himself to that "place-loving nobleman," who, hardly gifted with common understanding, and not possessing the knowledge of geography and history

* 8 St. Tr. 414—480.

CHAP, now acquired at a parish school, — from the rotten borough

system then in prime vigour, was in high office as a minister

longer than Burleigh, and had much more power and patronage than that paragon of statesmen. Among other advantages which Yorke derived from this connexion, he was always returned to parliament free of expence, while Willes, and other competitors at the bar, were involved in contests which made a serious inroad upon their professional gains, and kept them poor, while he was advancing to be a "millionaire." Lord Hardwicke's detractors allow that he never forgot these obligations. "The best thing that can be remembered of the Chancellor," says Horace Walpole, "is his fidelity to his patron; for, let the Duke of Newcastle betray whom he would, the Chancellor always stuck to him in his perfidy, and was only not false to the falsest of mankind. "J Accession On the vacancy occasioned by Lord Macclesfield's conviction, although he had pretensions to the Great Seal, he was much better pleased to remain Attorney General — with the bar as a certain resource — than to accept a precarious office, the loss of which was likely soon to leave him without employment or profit — considering that George I. was old and infirm, and that an entire change of ministry was anticipated at the accession of the Prince. When that event did take place, he was delighted to find himself, by the skilful management of Walpole, more secure than ever — in the enviable situation of Attorney General to a powerful government, with the certainty of succeeding to the highest offices in the law.*

* His high position at this time may be estimated by the following letter of introduction, addressed to him from Tickell, the friend of Addison.

"Tho*. Tickell, Esq. to S* Philip Yorke, Attorney General.

"Dublin Castle, Nov. 4. 1725.

"Sir,

'"Mr. Broughton, whom my Lord Lieutenant has sent over with the Irish Money Bill and some private ones, has so often heard me boast of being loiown to you, that he has desired me to introduce him to you, by a Letter. He indeed thinks too highly of my interest in you, in imagining, that my recommendation may incline you to give him the utmost despatch in his business. But I will take upon me to say, that his conversation is so agreeable, that for your own sake you will endeavour to put a speedy end to the serious part of it, and fall into that, for which you have so nice a taste. I should not presume to

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