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Their improper reversal of a decree which had been pronounced in favour of Lord Chatham.
Macklin against some booksellers, who employed Mr.Guerney, the short-hand writer, for the fee of one guinea, to go to the playhouse and take down from the mouths of the actors the words of his farce, entitled, "I^ove a la Mode," lately brought out upon the stage, but never printed. The copy thus obtained they were about to publish in the "Court Miscellany, or Gentleman and Lady's Magazine," and a motion was made for an injunction to prevent them from doing so. The defendant's counsel contended, that in such a case a Court of Equity ought not to interfere, but leave the plaintiff to his remedy at law, as he had lost all property in the piece by acting it, and he had not sustained, and he could not sustain, any damage, the representation on the stage being benefited rather than injured by additional publicity. But the Lords Commissioners, without hearing a reply from the counsel for the plaintiff, held that the acting was no publication to deprive him of his remedy, and Lord Commissioner Bathurst said: — "The printing it before the author has printed it is doing him a great injury. Besides the advantage from the performance, he has another means of profit— and irremediable mischief is about to be done to his property. This is a strong case for an injunction." Perpetual injunction ordered*
But the solemn judgments of the Lords Commissioners, although supposed to be sanctioned by the authority of Lord Mansfield, were not always approved of, and they and he were particularly censured for a reversal of the decree of the Master of the Rolls in the great case of Tothill V. Pitt, f This suit arose out of the will made by Sir William Pynsent, in favour of Mr. Pitt, as a mark of the testator's sense of the patriotic services of " the Great Commoner," and involved the right to a considerable amount of personal property bequeathed to him along with the estate of Burton Pynsent. The case coming on at the Rolls before Sir Thomas Sewell, a very eminent Equity Judge, he decided in favour of Mr. Pitt — on the clear and well-established rule of law, that "where the words of a will give an express estate tail in a freehold,
• Ambler, 694.; See Murray v. Elleston, 5 B. & A. 737.; Morris v. Kelly, 1 J. & W. 656. f Dickens, 431.
the same words applied to personality, will give the whole Chap. interest—to avoid a perpetuity which the law abhors." After CLI1 this decree had been acquiesced in for six years, an appeal was brought against it before the present Lords Commissioners of the Great Seal. I am wholly at a loss to account for the reversal which they pronounced; for I utterly, and most seriously and unfeignedly, discard the notion which prevailed at the time, that they or their assessor must have been influenced by political enmity to the respondent. The reversal caused a burst of surprise, and he immediately appealed against it to the House of Lords. The Judges being sum- The'',
versa 1 rc
moned gave an unanimous opinion in favour of the now ap- versed. pellant, and with the concurrence of Lord Mansfield himself, the reversal was reversed, and the original decree was affirmed. *
After the learned Trio had gone on for a twelvemonth, The Great floundering and blundering, the public dissatisfaction was so mined to great that some change was considered necessary. What the most in
. oil. competent
was the astonishment of Westminster Hall, and of the public, of them, when it was announced that His Majesty had been pleased to jTM' 23deliver the Great Seal to the Honourable Henry Bathurst, a Judge of the Common Pleas, as Lord Chancellor, and to raise him to the peerage, by the title of Baron Apsley of Apsley, in the county of Sussex!
It was thought vain again to solicit the acceptance of the Bathurst Great Seal by any legal dignitary who had already acquired ceuor aiid a judicial reputation, and there were then objections to intro- Peerducing into the House of Lords "the majestic sense of Thurlow, or the skilful eloquence of Wedderburn." Bathurst, from his birth and family connections, was very acceptable to the party in power; he was a man of inoffensive manners, and of undoubted honour and fidelity; and his His insig. insignificance was not disagreeable — being regarded as a mvheto* guarantee that he would give no trouble in the cabinet. him
He was sworn in at a council at St. James's the first day Jan. 23. of Hilary Term. Two days after he led a grand procession ^J-j infrom his house in Dean Street to Westminster Hall, stalled.
* Brown's Parliamentary Cases, vii. 455.
CHAP, attended by the great officers of State, and many of the CLI11" nobility, and he was duly installed in the Court of Chan
Oneincom- His proper title in the peerage at this time was Lord Judge Apsley, and so continued till the death of his father in 1775, three"7 tllan when his elder brother having previously died without issue, the earldom of Bathurst descended upon him; but I shall use the freedom to denominate him Lord Bathurst from the commencement of his Chancellorship. Lord Ba- Many thought that he must now entirely break down; ^"badan' but, on tfte contrary, he got on tolerably well. The ChanEquity eery galley was less unsteady than when three unskilful pilots actingWhe" were employed at the helm. There was entire confidence single, as placed in the new Chancellor's integrity and earnest desire pected. to do what was right; the Attorney and Solicitor General who practised before him were desirous of supporting him, and he himself, placing just reliance on the liberality and honour of the Chancery bar, acted on the belief that there would be no gross attempt made to mislead him. In weighty cases he was in the habit of calling in the assistance of Common Law Judges, and being governed by their advice. His can- He likewise leaned constantly on Sir Thomas Sewell, dour- the Master of the Rolls—never showing any arrogance or false pretension. In one important cause, having required the inferior Judge to sit as assessor, and heard his opinion, he said, with disarming candour: "I ought to apologise for keep
* "23d January, 1771.
"The Lords Commissioners for the custody of the Great Seal of Great Britain, having delivered the said Great Seal to the King at his palace of St. James's on Wednesday the 23d of January, 1771, his Majesty, about oue o'clock the same day, delivered it to Henry Bathurst, Est', with the title of Lord Chancellor of Great Britain, who was thereupon, by his Majesty's command, sworn of the Privy Council and likewise Lord High Chancellor of Great Britain, and took his place at the board accordingly. And on Friday the 25th of Jan*, he went in state from his house in Dean Street to Wesf Hall, accompanied by Earl Gower, President of the Council, Earl of Suffolk, Lord Privy Seal, Earl of Hillsborough, one of the principal Secretaries of State. Marquess of Carnarvon, the Earls of Litchfield, Marchmont, Poulett, Strafford, the Lords Bruce and Boston, and Sir John Eardlcy Wilmot, K"t; where, in their presence, he took the oaths of allegiance and supremacy, and the oath of Lord High Chancellor of Great Britain, the Master of the Rolls holding the book, and the Deputy Clerk of the Crown reading the said oaths. Which being done, the Solicitor General moved that it might be recorded, and it was ordered accordingly."— Minute Hook, No, 2. fol. 18.
ing the matter so long before the Court; at first I differed in CHAP, opinion with his Honour, but he hath now convinced me, and
I entirely concede to his Honour's opinion, and am first to thank him for the great trouble he hath taken on the occasion."
Still the appointment was justly complained of as resting on political convenience, without regard to the interests of the suitors. As long as Lord Bathurst held the Great Seal deep grumblings were uttered — and bitter sarcasms were levelled against him.
In all companies was repeated the saying of Sir Fletcher sir Norton, who when he heard of Lord Commissioner Bathurst J?etche,r
being declared Lord High Chancellor, exclaimed, "What sarcasm on the three could not do is given to the most incompetent of Bathurst the three!"
Sir Charles Hanbury Williams inserted the new Chan- Lines by
• Sir C H
cellor in the band of Tories who Williams.
Stories were invented and circulated respecting the Chan- Stories circellor, which showed the low estimation in which he was held, ridicule'the It was said that his Lordship, on Wilkes being elected Lord Chancellor. Mayor of London, had threatened, in the exercise of the royal prerogative, when the profligate patriot was presented for confirmation, to disallow the choice of the citizens, — till told that this would be Wilkes's reply: "lam fitter for my office than you are for yours, and I must call upon the King to choose another Lord Chancellor." — Again, when he got into a controversy with a soldier's widow, about a spot of ground at Hyde Park Corner, and she having filed a bill against him, he gave her a sum of money to relinquish her claim, a witty barrister was represented to have observed, "here is a suit by one old woman against another, and the Chancellor has been beaten in his own Court!"
There is a passage in Boswell's Life of Johnson, which Dr. Johnshows still more strikingly the opinion of well educated men sons.
, » , , . . . opiraon on
upon this subject. The biographer having mentioned the the fitness introduction of Sir Alexander Macdonald to the Lexico- ofChnnVol. v. c, G
Character of Lord Bathurst from a contemporary work.
grapher, in the year 1772, thus proceeds: "Sir Alexander observed, that the Chancellors in England are chosen from views much inferior to the office, being chosen from temporary political views. — Johnson. 'Why, sir, in such a government as ours, no man is appointed to an office because he is the fittest for it, nor hardly in any other government; because there are so many connections and dependencies to be studied. A despotic prince may choose a man to an office merely because he is the fittest for it.'" Such a conversation would not have occurred during the Chancellorship of Lord Hardwicke or Lord Somers. *
I give one other testimony from a popular work published shortly before the close of Lord Bathurst's career as Chancellor: — " He travelled all the stages of the law with a rapidity that great power and interest can alone in the same degree accelerate. His professional character in his several official situations was never prominently conspicuous, till that wonderful day when he leaped at once into the foremost seat of the law. Every individual member of the profession stood amazed; but time, the great reconciler of strange events, conciliated matters even here. It was seen that the noble Earl was called upon from high authority to fill an important office, which no other could be conveniently found to occupy. Lord Camden had retired without any abatement of rooted disgust, far beyond the reach of persuasion to remove. The great Charles Yorke, the unhappy victim of an unworthy sensibility, had just resigned the Seals and an inestimable life together: where could the eye of administration be directed? The rage of party ran in torrents of fire. The then Attorney and Solicitor General were at the moment thought ineligible. Perhaps, too, the noble Lord then at the head of affairs, and who was yet untried, had a policy in not forwarding transcendent abilities to obscure his own. Every such apprehension vanished upon the present appointment. This man could raise no sensation of envy as a rival, or fear as an enemy." f _
* Bos well, ii. 160.
f Strictures on Eminent Lawyers, p. 76.; Ambler, from p. 696. to p. 772. j 2 Dickens, from p. 432. to p. 544.