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In the session of 1730, he was called into action by CHAP.

cxxx

the combination between the Tories and discontented

Whigs, which began to annoy, without being formidable to, Bill to prothe minister. With the view of crippling the Austrians, hlb't loans

. to foreign

with whom there were some differences pending, and who states, wished to negotiate a considerable loan in London, the Attorney General brought in an Act to forbid the lending of money to any foreign power without the King's licence, and to compel all persons to answer a bill in Equity to discover if they were concerned in such transactions. This measure being strongly opposed by Pulteney, and by Sir Win. Wyndham, Sir Philip Yorke ably urged all that could be said in its defence, He tried to support it on the principles of the common law, according to which the King has the prerogative to prevent his subjects from entering into the service of a foreign Prince by the writ of ne exeat regno, or by proclamation to recall them,—urging that " their money, the sinews of war, might be more useful and dangerous than their persons. The Dutch might have the advantage of being the lenders of the money if we were not, but the measure was not to be judged by mere commercial considerations of profit and loss, but was framed with a view to a question of peace and war, and to the balance of power in Europe: it was only a temporary restraint, and might be compared to an embargo, which interfered with trade more directly, yet when necessary for the public safety was not complained of. As to the clause compelling a discovery it was indispensable, as without it, from the facility of secretly entering into such transactions, the Act would be wholly nugatory." * It passed by a large majority; and Coxe says," a sufficient justification of the mea

ttlce this liberty, if I did not honour you more for your humanity, than others can for your great talents; and if upon that account I was not with the truest respect,

"Your most humble and most

"obedient Servant,

"tho. Ticxeli..

■ To the honble. S* Philip York,

"his Majesty's Attorney General."

Bibl. Birch. Add. MS. 4325. p. 125.

* 8 Pari. Hist. 187.

sure was, that the want of money compelled the Court of Vienna to submit to terms of accommodation *;" but the Dutch practice of selling ammunition to their enemies is probably more in accordance with true statesmanship as well as the principles of political economy.

The next time that Sir Philip Yorke's name is mentioned as taking a part in the debates, is in the session of 1732, when, upon a great muster of opposition under the auspices of Bolingbroke, the minister was so hard run for speakers as to be obliged to put up the Attorney General to defend the augmentation of the army. Thus called upon, he was not quite so bellicose as he is said to have been on a subsequent occasion when Walpole is represented to have hailed him as a military officer; but he contended that, with a view to peace, the proposed force was necessary. "It is certainly," said he, "the interest of this nation to render itself as considerable as possible amongst our neighbours, for the greater opinion they have of our strength and power the less apt they will be to undertake any expeditions or invasions against us, and the more easy it will be for us to obtain from them any advantages or immunities which we may think necessary for improving the trade and increasing the riches of the kingdom. The factions and divisions which are springing up at home, encourage our enemies abroad, and render a commanding attitude on the part of the government more indispensable. His Majesty only asks that which is required for the public safety, and any apparent disagreement between him and his parliament will be the signal for internal commotion and foreign war."f After the most furious debate which had been known since the reign of Queen Anne, the Minister had a majority of 241 to 171.

In the following year was brought forward the "Excise Scheme," when Sir Philip Yorke is said to have delivered one of the best speeches in favour of that measure; but in print it is extremely vapid. The most valuable part of it probably was where he showed, from his professional knowledge and experience as Attorney General, that the laws of Excise under

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which it was proposed to put the collection of the duties on CHAP, wine and tobacco, were not more severe than the laws of the < * -'

Custums from which they were to be transferred. He denied that the measure encroached on the constitution, "unless frauds in the collection of the revenue by. long usage had become a part of the constitution," and he maintained that "the only liberty which would be subverted was the liberty of smuggling."

A violent opponent of the measure had during the debate Yorkc's asserted that its object was to revive the worst practices of ,t. Empson and Dudley. So grossly ignorant of English his- r tory was the Prime Minister, that he had been obliged to ask Sir Philip Yorke, sitting by him on the Treasury bench,' "who Empsan and Dudley were ;" and he was afraid to trust himself (lest he should commit some ludicrous blunder) to repel the charge. Sir Philip now took occasion to reprobate the conduct of the wicked tools of Henry VII., and drew a comparison between his own past conduct and that of his predecessor Mr. Attorney General Dudley, which drew forth cheers from all parts of the House. — We ought not to doubt that the speech deserved the high praise bestowed upon it, the report of it which we have being prepared by some one who probably (according to the usage of the time) had heard not a word of it, and who, at all events, was evidently ignorant of the principle and details of the bill. * Sir Philip had ample time to prepare, and he had strong motives to put forth all his strength; for now was the first occasion of his experiencing the danger of being of office by turned out a hostile majority.

He never again spoke in the House of Commons. Here His mohe had now sat fifteen years, being heard respectfully on the ceTM\n the rare occasions when he took part in the debate, but never House of having acquired much reputation as an orator. In addition to the prejudice then prevailing against him by reason of his profession, he was too didactic and logical for the understandings of the country gentlemen, and he did not sufficiently

* 8 l'arl. Hist . 1287.

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deal in personalities, and in clap-trap declamations, to suit himself to the somewhat mobbish taste of that assembly.

His elevation to the woolsack had been for some time anticipated from the age and growing infirmities of .Lord King, whose immediate, successor he was generally regarded. The secret history of the arrangements actually made on the resignation of Lord King, and the death of Lord Raymond, is not authentically known, and it would be vain to speculate farther upon them. *

The profession and the public were highly satisfied with the new Chancellor and the new Chief Justice. Talbot was considered of a more open and generous nature than his colleague; and all who knew him were pleased that he had recovered the precedence of which he had been unjustly deprived by Lord Macclesfield's partiality for another; while the learning, ability, and strict integrity which the world admitted in Sir Philip Yorkc, though he was less remarkable for his amiable qualities, gave assurance that the duties of the important office of Lord Chief Justice of the King's Bench would be discharged in the most exemplary manner. Although he might not, himself, be perfectly contented with the allotment to him of the lower dignity, this was no slight which he would have been justified in resenting; and, acquiescing with a good grace, he professed his determination to support the Government, and to back the new Lord Chancellor in the House of Lords to the utmost of his power. At the same time that he was made Chief Justice of England he was elevated to the peerage, by the title of Baron Hardwicke, of Hardwicke, in the county of Gloucester; and he waslikewise sworn a member of the Privy Council. It has been said that he was likewise then admitted into the cabinet; but this is certainly a mistake, although, on particular subjects, he was confidentially consulted, from time to time, by Walpole. f

He took his seat in the Court of King's Bench in Michaelmas Term, 1733, and continued to preside in that Court above

• Ante, Vol. IV. p. 656.

f Sec Biogr. Brit. " Hardwicke."

three years. No case of very great importance, cither civil CHAP, or criminal, came before him as a common-law Judge, but we cxxXknow, as well by the general testimony of contemporaries as by the printed Reports of his decisions*, that he uniformly displayed, in addition to the strictest impartiality, much acuteness of intellect and great depth of legal erudition. Following such men as Holt, Parker, and Raymond, he found the principles of the old common law well defined, and they were still tolerably sufficient for the exigencies of society. He assisted a little in adapting them to the new commercial transactions and changed manners which were gradually springing up; but to his successor, Lord Mansfield, was reserved the glory of relieving the poverty of our feudal jurisprudence from the spoils of foreign codes. Although Lord Chief Justice Hardwicke showed high capacity while he presided in a common-law court, and did ample justice to the suitors, he did not make his name very distinguished by any considerable improvements in the system which he there administered. He subsequently exhibited greater powers when he had to expatiate in a new field.

The business of the Court of King's Bench now chiefly His marested on his shoulders. Lee, his senior puisne, who after- "f ^hTM6"' wards succeeded him, was of some service from his know- Pu,3»e ledge of pleading; but Probyn, who came next, was a mere Judgescipher; and Page, the junior, required to be kept in strict subjection, for he was ignorant, foolish, and presumptuous. In cases of importance, with a view to check the babbling of the puisnes,—after the arguments were finished, the Chief Justice insisted always that time should be taken to consider, and he afterwards delivered the decision in a written judgment, which he himself prepared. Thus he closed their mouths, unless they ventured to differ in opinion, which rarely happened.— So much for Lord Hardwicke as a com" mon-law Judge, f

* Sec " Reports Temp. Hardwicke," by Lee.

f Horace Walpole says, that while Chief Justice, "he had gained the re. putation of humanity by some solemn speeches made on the circuit at the condemnation of wretches of low crimes j" but I know not to what the sarcasm refers, and I suspect that it is introduced to give point to the charge of in.

VOL. V. D

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