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CHAP.

cxxx.

Lord Hardwicke's great success in the House of Lords as a debater.

His speech on maintaining a standing army.

During his chief Justiceship his political importance was greatly enhanced. Many had expected that he would succeed better as a debater in the Upper than he had done in the Lower House of parliament, and this expectation was not disappointed. He now seemed to feel more at home, and, with increased confidence, his speaking rapidly improved. Not so graceful as Chesterfield, he was more argumentative and forcible; and after he had had a little experience in his new sphere, it may be truly said that between the attainder of Bolingbroke and the appearance there of Lord Mansfield and Lord Chatham the House of Peers presented no one who could attack or defend with more skill or success.

His first encounter was with Lord Chesterfield, who, smarting from his dismissal on account of his opposition to the Excise Scheme, made a furious attack upon the Government, when an address of thanks was moved in answer to a message from the King, proposing an augmentation of the forces, in order to be prepared for a threatened war. Indulging in the common-places about the danger to liberty from militaryviolence, the "Wit among Lords," maintained that as a standing army in time of peace was contrary to law, it could only be legalised by an act of parliament, so that the proposed address would be nugatory. Lord Hardwicke immediately followed, and thus began: "As the noble Earl who has just sat down has based his objections to the motion so much on legal and constitutional grounds, perhaps, my Lords, I may be excused in now offering myself to your Lordships' notice, although I must confess that the marshalling of troops, and the sufficiency of military establishments are not subjects with which I have ever been familiar. While the King by his prerogative may enlist soldiers when he pleases, I agree that a standing army cannot be maintained in time of peace

humanity on the trial of the rebel Lords. — Lord Thurlow is represented as having thought Lord Hardwicke a better common-law, than equity, Judge: "I have heard the late Lord Thurlow say, that he thought the Karl of Hardwicke was mnre able, as Chief Justice of the King's Bench, than he was as Lord Chancellor; but I could never discover on what ground."—Nich. Recoil, ii. 119. This must have been with a view of lowering Lord Hardwicke in the latter capacity, rather than exalting him in the former

without the authority of parliament, because of his own au- Chap. thority he could not punish them by martial law, nor could cxxxhe raise funds for their support. But we have passed the "Mutiny Bill," and we shall pass the "Appropriation Bill," by which the army may be disciplined and paid, — and, with great submission to the noble Earl, no farther legislation will he necessary to gain the object recommended by the message from his Majesty. Under such checks, the maintenance of a sufficient force to preserve internal tranquillity, and to command the respect of foreign nations, while it is indispensable for the protection of our persons and our property, can raise no danger to liberty. Being summoned here to advise his Majesty de arduis regni, he now consults you whether the existing force is sufficient? If you are of opinion that it ought to be augmented, you will say so by the address which has been moved. According to the usage of parliament the Crown and the two Houses communicate by message and address; from the usage of parliament we know the law and the constitution,— and there is no pretence for the ingenious suggestion of the noble Earl, that on such an occasion you are to proceed by an act of parliament."—He then went into the general merits of the question, and from the state of Europe and our foreign relations showed the prudence as well as the legality of the proposed measure. *

In the session of 1735 Lord Hardwicke is not mentioned as taking part in any debate except upon the bill respecting the withdrawing of troops from parliamentary elections,— when he tried to calm the fears that were entertained of the military overawing the electors, and the little necessity there was to provide new punishments for such offences. f

The following year he rendered essential service to the Mortmain public by supporting a bill to amend the mortmain acts,— actswhich, instead of being repealed (as some now wish), will I hope be extended to bequests of personal property,— for it is essentially necessary in all cases to guard death-bed from improper solicitations, by which superstition may be en

• 9 Pari Hist. 538. f Ibid. 886—910.

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couraged, and those for whom dying persons ought to provide may be left destitute.* He next opposed and threw out a well-meant but impracticable bill for regulating the payment of tithes by Quakers, which seems to have excited very great interest at the time, but which, from the general commutation of tithes, is now unimportant, f

The last speech he made while Chief Justice, was in a debate which took place a few days before the death of Lord Talbot, on the murder of Captain Porteous at Edinburgh, and the riots which had lately occurred in different parts of England. He now took occasion to refer to the explosion of gunpowder, and the dispersion of libels which had happened the preceding term in Westminster Hall. Between one and two in the afternoon, while all the courts were sitting J, a loud report was heard, and the Hall was filled with smoke. This was found to be an ingenious device for dispersing a mass of libels on the government. Some of these being carried into the Court of King's Bench, and shown to the Chief Justice, he immediately made a comment upon their wickedness, ordered them to be laid before the grand jury, who were then sitting, and prevailed upon the Queen, acting as Regent, to offer a large reward for the discovery of the offender. The author of this " Gunpowder Plot" turned out to be a crack-brained, nonjuring parson, who had acted without any associates,— so that the affair was laughed at,— and it had been treated with some ridicule by the opposition peers. The indignant Chief thus expressed himself:—" The attempt which noble Lords opposite make the subject of their jests, was certainly one of the most audacious affronts ever offered to an established government, and was levelled directly at the illustrious family now upon the throne. I do not mean, my Lords, the powder or rockets then blown up, for I do not believe that the guilty contriver meant to destroy the Hall, or to injure any one in it; but I mean the scandalous and seditious libels spread about the

* Ibid. 1119. f Ibid. 1218.

f Hours had now greatly altered; and the Courts, instead of meeting at seven and breaking up at eleven, met at nine and sat till two. For many years after, however, there were iKst-pramlian sittings.

Hall by the explosion, and afterwards dispersed over the CHAP,
whole of this vast metropolis. These libels not only re- cxxX-
fleeted most indecently on the proceedings of the two
Houses of Parliament, but denied his Majesty's right to the
crown, and asserted the Pretender to be our true and only
lawful sovereign. If vigorous steps had not been taken to
detect and punish the offender, the world would have be-
lieved that the established government was so feeble that it
might be insulted with impunity, and this insult would soon
have been followed up by an organised insurrection, and by
foreign invasion." Having commented upon the death of
Captain Porteous, which he denounced as "an atrocious
murder, the authors of which must be brought to condign
punishment," he described the formidable nature of the riots
ia different parts of England, and justified the suppression
of them by the military. He strongly combated the notion
that there was any thing illegal in employing soldiers to
preserve the public peace. "I am surprised, my Lords,"
said he, "to hear it said that if the King's troops should
now and then, upon extraordinary occasions, be called to the
assistance of the civil magistrate, we should on that account
be supposed to live under a military government. I hope it
will be allowed that our soldiers are our fellow-citizens.
They do not cease to be so by putting on a red coat, and
carrying a musket. Now, it is well known that magistrates
have a power to call any subject of the King to their
assistance, to preserve the peace, and to execute the process
of the law. The subject who neglects such a call is liable
to be indicted, and, being convicted, to be fined and im-
prisoned for his offence. Why, then, may not the civil
magistrate call soldiers to his assistance, as well as other
men? While the King's troops act under the directions of
the magistrate, wc are as much under civil government as if
there were not a soldier in the island of Great Britain. The
calling in of these armed citizens often saves the effusion of
innocent blood, and preserves the dominion of the law." *

* 9 Pari. Hist. 1294.

S CHAP. CXXX.

Feb. I. 1737.

Feb. 14.
1737.
Law ar-
rangements
on the
death of
Lord
Talbot.

On this day Lord Talbot, who took an active share in the debate, was in excellent health, and seemed likely for many years to fill the office of Chancellor, establishing a reputation as the greatest Equity Judge of the century in which he flourished.* If these expectations had been realised, Lord Hardwicke would have attracted little comparative notice, and having gained' no conspicuous place in history, v. ould only have been recollected by lawyers, like Lord Raymond, as an eminent common-law judge. But he was destined to be twenty years a cabinet minister,— himself to form cabinets, — and, generations after his death, to have a statue erected to his memory by the English nation as the greatest contributor to our Equity code.

On the day Lord Talbot died the Great Seal was delivered by his executors into the hands of George II. at St. James's palace. There never was any doubt as to his successor, for Lord Hardwicke was now regarded as decidedly the most useful man to be introduced into the Cabinet and to preside on the woolsack as Chancellor,— and he himself, placing just confidence in the stability of the administration, did not hesitate to agree to a move which promised to gratify his love of fame, his love of power, and his love of money. But, there being some difficulty with respect to salary and pension, and other accompanying arrangements requiring consideration, the Great Seal remained for a whole week in the personal custody of the King, f

Meanwhile, as Parliament was sitting, and there was no Lord Chancellor or Lord Keeper, it was necessary to provide a Speaker for the House of Lords, and the Great Seal, while in the King's possession, was (somewhat irregularly) put to a commission authorising Lord Hardwicke to act in that capacity. % He accordingly did act for several days as Speaker

* It appears from the Lords' Journals, that down to the 9th of Feb. 1737, Lord Talbot was present in the House, and presided as Chancellor.

f This is the last instance of such an occurrence. Since then no Chancellor has died in office; and the usual course has been, that the Great Seal has been surrendered up by the outgoing Chancellor at a Council, and, at the same Council, has been delivered to bis successor.

f This, on principle, seems as objectionable as the act of Charles II., in sealing Lord Danby's pardon with his own hand. S.e ante, Vol. III. p. 408.

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