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Charles Yorke agrees to
den surrenders the
the court was determined to make a vigorous effort to concoct CXLIV.
an administration that would push on its favourite policy at home and abroad. A great difficulty was to obtain a lawyer of any reputation to take the Great Seal, as successor to Lord Camden,-particularly after the late denunciations in the House of Lords against all who should think of degrading themselves by basely doing so. Lord Camden, under the advice of his friends, determined that he would not voluntarily resign.
Through persuasions, and with a result which I shall have
to detail in the life of Charles Yorke, he was prevailed upon, accept the in an evil hour, to agree to accept the offer pressed upon him, Great Seal.
although he condemned his own act at the instant, and soon
fatally repented of it. Lord Cam
On Wednesday, the 17th of January, 1770, about seven
in the evening, Lord Camden, in pursuance of a summons he Great Seal. had received for that purpose, attended at the Queen's Palace,
and there surrendered the Great Seal into the King's own hands. He slept sounder that night than he had done for many months.
The very extraordinary circumstances in which he had been placed must apologise for his political conduct while in
office. I am afraid it cannot be strictly justified. Lord Cam To the last hour of his holding the Great Seal, the exercise Judge of
of his judicial functions met with universal approbation. I appeal in
ought not to pass over, without notice, the admirable manner the House of Lords. in which he disposed of appeals and writs of error in the
House of Lords. Lord Mansfield, on those occasions, generally sat along with him. To the honour of my profession, and for the credit of the decisions of the tribunal judging in the last resort in this country, it should be known that, however strongly law Lords may differ on questions of party politics, they have always zealously co-operated in the endeavour satisfactorily to dispose of the juridical business of the House; and, with a few exceptions, — when the lay Peers have exercised their strict right, and tried to prevail by numbers, — justice has been administered there with entire purity, and on the most enlightened principles. Lord Camden and Lord Mansfield sometimes attacking each other in debate so sharply, as almost to render a resolution necessary, that “they
den as a
should be required to give an assurance that the matter should CHAP, not go farther, or that they be taken into the custody of the Black Rod;" they never had the slighest difference of opinion in any case argued by counsel before them.
Soon after Lord Camden had taken his seat on the wool- Feb. 4. sack, came on the famous writ of error in Harrison v. Evans, Rights of in which the question was, “ whether a Dissenter was liable Dissenters. to a fine for not serving a corporate office which he was disqualified from serving by the Corporation Act, he not having taken the sacrament of the Lord's supper according to the rites of the Church of England ?” This arose out of an ingenious scheme to raise a tax upon the Dissenters in the City of London for the purpose of building the MANSION House, which by law they could never enter.
In the city courts judgment was given that the defendant was liable to the penalty of 6001. Lord Mansfield moved the reversal of the judgment in one of the finest specimens of forensic eloquence to be found in our books. Having shown that as the person whom the citizens pretended to choose for sheriff could not serve the office (as they well knew), this was merely an attempt to punish him for being a Dissenter, he said, -“Conscience, my Lords, is not controllable by human laws nor amenable to human tribunals. Persecution or attempts to force conscience will never produce conviction, and can only be calculated to make hypocrites or martyrs.” Lord Camden rejoicing to hear such noble sentiments from the Lord Chief Justice of the King's Bench, heartily concurred in them, and by the unanimous judgment of the House a great triumph was given to religious liberty.
So when Wilkes's case came to the bar of the House of Rex v. Lords, Lord Camden and Lord Mansfield agreed on the two points which were raised on the record :- 1. “ That the Solicitor General when the office of Attorney General is vacant, has authority by law to file a criminal informations;
16 Parl. Hist. 313. ; 3 Brown's Parl. Cas. 465. ; Life of Sir Eardley Wilmot, 73.
† After the resignation of Charles Yorke as Attorney General, before a suc. cessor bad been appointed, Sır Fletcher Norton, as Solicitor General, had filed the information against Wilkes for composing and publishing the North Briton, No. XLV.
and, 2. “ That a defendant being convicted of two misdemeanours, may at the same time be sentenced to two periods of imprisonment, the second to commence after the expiration of the first."*
But Lord Camden attracted chief notice while Chancellor glas cause. by his judgment in the great Douglas cause, which, in Scot
land, had almost led to a civil war between the supporters of the opposite sides; and in England even had excited more interest than any question of mere private right had ever done before. Archibald Douglas, the appellant, had been brought up as the son of Lady Jane Douglas, and her husband Sir John Stewart,- being supposed, along with his twinbrother Sholto, who died an infant, to have been born in Paris,—when their mother, after having long been married and remained childless, was in her forty-ninth year ;-and, if such was his birth, he had a right to the immense estates of his maternal grandfather the late Duke of Douglas, and was the heir general of the Douglas family, one of the most illustrious in Europe. The Duke of Hamilton, the heir male of the Douglas's, and in default of issue of the Lady Jane, entitled to all their domains, as well as those of the Hamiltons, which he inherited through a female, insisted that these two children were spurious, and had been purchased from a glass manufacturer and a rope-dancer at Paris,-brought an action in the Court of Session in Scotland to establish his right,—and there had a majority of the Judges in his favour.f The appeal was heard in the session of 1769, and drew vast crowds to the bar of the House of Lords to listen to the weighty and eloquent argumentation of Thurlow, Wedderburn, and the other most eminent advocates of the age. It was conjectured that the law Lords were for the appellant, but the great body of the Peers had attended the hearing of the appeal, and were to take part in the decision; there had been
Being convicted on this information, and on another for composing and publishing the “ Essay on Woman,” besides being fined, he was sentenced on the first to be imprisoned ten calendar months, and on the second to be imprisoned twelve calendar months, to be computed from the determination of the first imprisonment."
+ The fifteen Judges of the Court of Session divided 8 to 7- the Lord President Dundas being in the majority.
much canvassing for the “ Douglases" and the “ Hamiltons, and a great degree of suspense existed down to the very morning of the judgment.
It astonishes us very much to be told, that when the order Feb. 27. of the day had been read by the Clerk, for the further consideration of the cause of the Duke of Hamilton v. Douglas, the Duke of Newcastle spoke first, and that “he was answered by Lord Sandwich, who spoke for three hours with much humour, and scandalised the Bishops, having, with his usual industry, studied even the midwifery of the case, which he retailed with very little decency. "
Lord Camden then thus began, — there being such silence Lord Camwhile he spoke, that a handkerchief would have been heard den's judgto drop, notwithstanding the crowds in attendance:f “My Lords, the cause before us is, perhaps, the most solemn and important ever heard at this bar. For my own share, I am unconnected with the parties ; and having, with all possible attention, considered the matter, both in public and private, I shall give my opinion with that strictness of impartiality to which your Lordships have so just and equitable claim. We have one short question before us, — Is the appellant the son of the late Lady Jane Douglas, or not? I am of the mind that he is; and own that a more ample and positive proof of the child's being the son of a mother never appeared in a court of justice, or before any assize whatever.” After very ably stating the primâ facie case from the marriage of the parents, and their acknowledging the appellant as their son, he minutely analysed the evidence to contradict and to corroborate it, and thus (rondeau fashion) concluded, — “ The question before us is short, 'Is the appellant the son of Lady Jane Douglas, or not ?' If there be any Lords within these walls who do not believe in a future state, these may go to death with the declaration that they believe he is not. For
• Horace Walpole's “ Memoirs of George III.,” vol. iii. 303.
+ “ Lord Mansfield, it had long been discovered, favoured the Douglases ; but the Chancellor Camden, with dignity and decency, had concealed his opinion to the very day of the decision.” — Horace Walpole's Memoirs of George III, vol, iii. 303. VOL, V.
my part, I am for sustaining the positive proof, which I find weakened by nothing brought against it: and, in this mind, I lay my hand upon my breast, and declare that, in my soul and conscience, I believe the appellant to be her son.” *
Lord Mansfield followed — haud passibus æquis — making the worst speech he ever delivered - so bad a speech as to bring suspicion upon the judgment — for he did little more than dwell upon the illustrious descent of the Lady Jane, and the impossibility of any one with such a pedigree being guilty of such a fraud as palming a supposititious child upon the world. † The House agreed to the reversal without a division, but five lay Peers signed a protest recording their opinion that “the appellant was proved not to be the son of
Lady Jane Douglas." Lord Cam
Before finally quitting Lord Camden's Chancellorship, I den's exercise of his must advert to the manner in which he disposed of his judijudicial
cial patronage — always an important consideration in scanpatronage.
Horace Walpole's account of the Douglas cause.
Merits of the Douglas cause.
See George Hardinge's striking account of this speech, Appendix, post. † It is hardly possible that the account we have of Lord Mansfield's speech on this occasion can be full and correct, particularly as it does not contain the charges against Andrew Stewart, which were made the subject of the famous “ Letters.
# Horace Walpole thus states the result: -" The Chancellor then rose, and with leading authority and infinite applause told the Lords that he must now declare that he thought the whole plea of the Hamiltons a tissue of perjury woven by Mr. Andrew Stewart, and that, were he sitting as judge in any other Court, he would order the jury to find for Mr. Douglas; and that, what that jury ought to do on their oaths, their Lordships ought to do on their honours. This speech, in which it was allowed he outshone Lord Mansfield, had the most decisive effect. The latter, with still more personal severity to Stewart, spoke till he fainted with the heat and fatigue. At ten at night the decree was reversed without a division." - Memoirs of George III, vol. iii. 304.
I believe the general opinion of English lawyers was in favour of the decision of the Court of Session in Scotland; but this was produced a good deal by Lord Mansfield's wretched argument, and the very able letters of Andrew Stewart, the Duke of Hamilton's agent, whose conduct had been severely reflected upon.
I once studied the case very attentively, and I must own that I came to the conclusion that the House of Lords did well in reversing. There was undoubtedly false evidence in support of the appellant; but it would have been too much in such a case to act upon the maxim, “ false in one thing, false in all things," so as to deprive him of his birthright from misconduct to which he was not privy. There seems to be no doubt that the Lady Jane, notwithstanding her advanced age, subsequently to the birth of the appellant, was pregnant, and had a miscarriage; and insuperable difficulties attended the theory of his being the son of Madame Mignon. Being in possession of his status, I think the evidence was insufficient to deprive him of it - and the strong family likeness satisfactorily established seems to prove that the conclusion of law concurred with the fact of his physical origin.