Графични страници
PDF файл

dealt with cases coming before him on exceptions to the CHAP.


Masters' Report, and on appeal from the Master of the Rolls. * He showed no propensity whatever to reverse what had been decided, but he freely and boldly considered every question submitted to him as the superior Judge. Not shrinking from trouble or responsibility, he formed his own opinion upon it, and resolutely corrected what appeared to him to be amiss. There were four Masters of the Rolls successively under him, and he will be found to treat them all with great respect, but with great freedom.

By these means Lord Hardwicke, in a few years, raised ffrd, a reputation which no one presiding in the Court of wicke's Chancery has ever enjoyed, and which was not exceeded ^ancellor

"' * J ship con

by that of the great Lord Mansfield as a common-law sidered the

Judge. The wisdom of his decrees was the theme of ff E^"^8 universal eulogy. "Etiam quos contra statuit, tequos et placidos dimisit." Such confidence was there in his administration of justice, that the business of the Court was greatly increased, and it is said that more bills were filed under him than at any subsequent time, although the property administered by the Court of Chancery has since been increased sevenfold. There were still rare complaints of delays in Chancery, from the intricate nature of the inquiries, the death of parties, and other inevitable obstructions to the final winding up of a suit, but by great exertion arrears were kept down, "and this is fondly looked back upon as the golden age of Equity." *

I hardly think it worth while to mention the statement No decree which is so much harped upon by the common herd of Lord Hardwicke Hardwicke's petty biographers, that only three of his decrees reversed, were appealed against, and that in each of these cases the decree was affirmed. The truth is, that during the whole of his time, through management which I shall afterwards have to consider, he was the sole law Lord, and substantially the Chancery was a Court of the last resort.

But I should do injustice to his memory if I were not to HU demeanour on

* Lord Hardwicke,—abstaining from drinking his buttle after dinner.—a sacrifice too great for his successor, — regularly, in addition to his morning sittings, sat twice a week in the afternoon or evening.

VOL. V. F.

Chap, praise what hitherto has attracted little notice— the admiCXXXI. rajjle manner in which he disposed of the judicial business in sack and tne House of Lords. His demeanour on the woolsack apmanner of pears to have been a model for all Chancellors. While he thejud?ciai was affable and courteous, he studied to preserve order. He business of himself attended to the debates*, and his example and inof Lords, fluence generated a habit of attention and decorum among others. Though, in strictness, without more authority than any other Peer, all sides recognised him as moderator, and by his quiet and discreet exertions unseemly altercations and excessive familiarity were effectually discouraged. In hi.s time a meeting of the Peers had somewhat the air of a deliberative assembly,—instead of being a lounging place to hear the news of the day before dressing for dinner.

Although there were only three appeals from Philip to Philip, in all of which the decrees were affirmed without difficulty, there were a good many writs of error from the common law Courts, which, with the assistance of the Judges, he disposed of in a very masterly manner; and there were a great many appeals from Scotland, which, without assistance, he decided to the universal satisfaction of that country, where be was much honoured, till he abolished hereditary jurisdictions, and compelled the inhabitants to wear breeches.

I am now desirous of laying before the reader specimens of Lord Hardwicke's performances as a civil Judge; and there are ample materials for doing so, for besides his own note books and his judgments in his own handwriting, there are several MS. collections of his decisions, by very able hands, during the whole time he sat in Chancery f, and the principal cases before him have been digested and published by Atkyns, Vesey, Sen. and other reporters. % Although

* There are extant copious notes taken by him of debates which, with those of Archbishop Seeker, have filled up lacunte in the Parliamentary History.

f Of one of these, by the great kindness of my friend, Mr. Charles Purton Cooper, I am now in possession. It consists of four quarto volumes, beautifully written by Mr. Jodderell, an eminent Chancery barrister. He often does more justice to Lord Hardwicke than Atkyns or Vesey, Sen.; and 1 am told that, upon a reference to the register's book, he is found to be more accurate.

{ It seems strange to us, who see reports of all judgments in print almost as soon as they are delivered, that none of Lord Hardwicke's were printed till after he had resigned the Great Seal. The newspapers and magazines of that day these " Vates sacri" prevent his name from perishing,— from Chap. their condensation, they do not render justice to his copious CXXXIillustrations, his lucid arrangement, and his elegance of diction. Yet they give us the pith and substance of his discourses in pronouncing his decrees, and they afford an exquisite treat to the scientific reader. From these stores I am rather embarrassed with my riches, and,— instead of writing a volume to give a sketch of Lord Hardwicke's new doctrines, with the restrictions and expansions of what had been before laid down, — being confined to the selection of a few detached points decided by him, I am much afraid of being thought to resemble the ^xoXaariicos in Hierocles, who, to prove the fine proportions of a building, produced a brick which he had taken from it. The Equity lawyer who feels the little justice I do to the object of his adoration, will best appreciate the difficulty of my task.

Lord Hardwicke established the rule that persons, though All persons not Christians, if they believe in a divinity, may be sworn aGodmay" according to the ceremonies of their religion, and that the be witevidence given by them so sworn is admissible in courts of are to'be justice, as if, being Christians, they had been sworn upon the s,worn in

"L mi? !• /• <• 1 • • « the manner

Evangelists. This subject first came before him in Ram- binding on kissenseat v. Barker, where, in a suit for an account against tI'.eir con'

'* t ^3 sciences,

the representatives of an East India Governor, the plea according being overruled that the plaintiff was an alien infidel, a cross *°

or 1 own pecu

bill was filed, and an objection being made that he could liar reiionly be sworn in the usual form, a motion was made that no°"0sns. the words in the commission, "on the holy Evangelists," Dec. 1739. should be omitted, and that the commissioners should be directed to administer an oath to him in the manner most binding on his conscience.—Lord Chancellor. "I have often wondered, as the dominions of Great Britain are so extensive, that there has never been any rule or method in

thought as little of the Court of Chancery as of the Court of Pekin. The first tolume of Atkyns did not come out till 1757; nor the second till 1767. The first edition of Vesey, Sen., was published in 1771.

At that time MS. notes were much quoted j and counsel depended on recollection,—which had this advantage, that it always made the case recollected, and the case at bar on ail fours. There are decisions of Lord Hardwicke to be found in Strange, Ambler, Barnardiston, Ridgeway, and West, published subsequently.

Chap, cases of this sort. All persons who believe a God are CXXXI

'capable of an oath; and what is universally understood by an oath is, that the person who takes it imprecates the vengeance of God upon him if the oath he takes is false. It was upon this principle that the Judges were inclined to admit the Jews who believed a God according to our notion of a God, to swear upon the Old Testament; and Lord Hale very justly observes, 'it is a wise rule in the kingdom of Spain, that a heathen and idolator should be sworn upon what he thinks is the most sacred part of his religion.' In order to remove the difficulties in this case,-I shall direct that the words, 'on the holy Evangelists,' be left out. — The next consideration is, what words must be inserted in their room? On the part of the plaintiff in the cross bill, it is desired that I should appoint a solemn form for the oath: I think this very improper, because I may possibly direct a form that is contrary to the notions of religion entertained by the Gentoo people. I will, therefore, direct that the commissioners may administer such oath in the most solemn manner, as in their discretion shall seem meet; and if the person, upon the usual oath being explained to him, shall consent to take it, and the commissioners approve of administering it (for he may perhaps be a Christian convert), the difficulty is removed; or if they should think proper to administer another oath, that then they shall certify to the Court what was done by them, —and afterwards will come the proper time to controvert the validity of such an oath, and to take the opinions of the Judges upon it, if the Court should have any doubt." * Nov. 1744. The point was afterwards finally settled in the great case of Omychund v. Barker, where a similar commission to examine witnesses having issued, the Commissioners certified "that they had sworn the witnesses examined under it in the presence of a Brainin or priest of the Gentoo religion, and that each witness touched the hand of the Bramin, — this being the most solemn form in which oaths are administered to witnesses professing the Gentoo religion." Objec

[ocr errors]

tion was made that the depositions so taken could not be read CHAP, in evidence; and on account of the magnitude of the ques- CXXXItion, the Lord Chancellor called in the assistance of the three chiefs of the common law Courts. — After very long, learned, and ingenious arguments, which may be perused with pleasure, they concurred in the opinion that the depositions were admissible. Lord Chancellor. "As this is a case not only of great expense, but of great consequence, it will be expected that I should not decide without giving my reasons for the decision I am to pronounce. It is certified to us that these witnesses believe in the being of a God, and in his providence; and we know that they appealed to his favour or vengeance in the manner in which they considered the most solemn. The first author I shall mention is Bishop Sanderson, 'De Jurisjuramenti Obligatione.' 'Juramentum' says he, 'est affirmatio religiosa.' All that is necessary to an oath is an appeal to the Supreme Being, as thinking him the rewarder of truth and avenger of falsehood. This is not contradicted by any writer that I know of but Lord Coke, who has taken upon him to insert the word 'Christian,' and he alone has grafted this word into an oath. As to other writers they are all concurring (vid. Puff. lib. 4. c. 2. s. 4.). Dr. Tillotson, in his sermon upon the lawfulness of oaths, taking a text which applies to all nations and all men, 'an oath for confirmation is to them an end of all strife/ (Heb. vi. 16.) says, 'the necessity of religion to the support of human society, in nothing appears more evidently than in this, that the obligation of an oath which is so necessary for the maintenance of peace and justice among men depends wholly upon the sense and belief of a Deity.' The next thing I shall notice is the form of the oath. It is laid down by all writers that the outward act is not essential to the oath. Sanderson is of that opinion, and so is Tillotson in the same sermon. 'As for the ceremonies in use among us in the taking of oaths, they are not found in Scripture, for this was always matter of liberty; and several nations have used several rites and ceremonies in their oaths.' Secondly, whether, upon special circumstances, such

« ПредишнаНапред »