CHAP.
CLVII.

A written judgment delivered

by Thurlow, sup

question was, whether the Great Seal should be put to this patent? The grant was opposed by the patentees of all the other theatres, and of incumbrancers and others who had an interest in them. After a hearing of four days, Thurlow said: "All parties seem to agree that an opera house is a proper establishment in this country, but you will not expect me to determine which of these plans is the best. My office is to see that the King is not deceived, and that he does not part with any authority which he ought to retain. Many considerations require that public establishments of this nature should be in the hands of the King. In the time of James I., as in the time of Queen Elizabeth, masques and such diversions were under the direction of the Crown - executed partly by the Lord Chamberlain, but more immediately by the Master of the Revels. On the same notion the patent was granted by Charles II. to Killigrew and Davenant, and by Queen Anne to Collier and Sir Richard Steele. But this patent is bad, as it contains covenants with the Lord Chamberlain, and it does not sufficiently connect the grant with the property. It is calculated to create innumerable law suits. I should soon be obliged to direct the Master to take the management of the opera house into his own hands—a task for which, I may venture to say, all the masters, notwithstanding their great learning and experience as officers of this Court, are as unfit as myself. Dismissing the petition, I shall make a fit representation on the subject to his Majesty, who, I am sure, will do justice to the parties and to the public."

Thurlow generally disdained to resort to the practice now very common, and found highly beneficial, of delivering written judgments; but I find one judgment, which the Reposed to porter says, "His Lordship having read, gave it to me," be the com- and I do very much suspect that it is the composition of his position of Hargrave. "Devil," for the style of it is very quiet and moderate, and it enters a good deal into the civil law. The case is Scott v. Tyler, in which the important question arose, whether a condition annexed to a legacy, "that the legatee shall not marry without the consent of her mother," be void, as being in re

straint of marriage, so that the legacy shall be considered absolute? "To support the affirmative," he said, " innumerable decisions of this court were quoted; but the cases are so short, and the dicta so general, as to afford me no distinct view of the principle upon which the rule is laid down, or, consequently, of the extent of the rule, or of the nature of the exceptions to which its own principle makes it liable." Having given the history of the decisions on the subject in this country, and stated how it is viewed by the canon law, he proceeds: "By the civil law the provision of a child was considered a debt of nature, the payment of which the prætor would enforce; insomuch, that a will was regarded as inofficious by which the child was disinherited without just cause. By the positive institutions of that law, it was also declared, Si quis cælibatus, vel viduitatis conditionem hæredi, legatoriove injunxerit; hæres, legatoriusve è conditione liberi sunto; neque eo minus delatam hæreditatem, legatumve, ex hac lege, consequantur. In ampliation of this law, it seems to have been well settled in all times, that if, instead of creating a condition absolutely enjoining celibacy or widowhood, the matter be referred to the advice or discretion of another, particularly an interested person, it is deemed a fraud on the law, and treated accordingly; that is, the condition so imposed is holden for void. On the other hand, the ancient rule of the civil law has suffered much limitation in descending to us. The case of widowhood is altogether excepted by the NOVELS; and injunctions to keep that state are made lawful conditions. So is every condition which does not directly or indirectly import an absolute injunction to celibacy. Therefore, an injunction to ask consent, or not to marry a widow, is not unlawful. A condition to marry or not to marry Titius or Movia is good, for this reason that it implies no general restraint; besides, in the first case, it seems to have in view a bounty to Titius or Movia. In like manner, the injunction which prescribes due ceremonies, and the place of marriage, is a lawful condition, and is not understood as operating the general prohibition of marriage. Still more is a condition good, which only limits the time to twenty-one, or any other rea

СНАР.

CLVII.

CHAP.
CLVII.

Complaints of delays in the Court

of Chan

cery.

Lord Thurlow's de

cisions in

of Lords.

sonable age, provided this be not evasively used as a covered purpose to restrain marriage generally." After proceeding in this tone at great length, without abusing any body, or uttering any thing approaching to imprecation,- he dryly decides, that the young lady, having married at eighteen without her mother's consent, was not entitled to the legacy. Perhaps, in the delivery, a few strong expletives were interpolated, to avoid the suspicion that the real author was the meek and placid Hargrave.*

In Thurlow's time there were heavy complaints of delays in Chancery. These, no doubt, arose partly from the peculiar nature of equity suits, which often being between a multiplicity of parties, and depending on complicated inquiries are not capable of being rapidly settled like a single issue of fact in an action at law, but there seems reason to think that arrears accumulated from the want of industry and exertion on the part of the Judge. He was rather pleased to be called away to Cabinets and to the House of Lords, and he would not make that sacrifice of time out of Court to the consideration of pending cases without which no Judge can do justice to himself or the suitors. He went on uncomfortably with his Master of the Rolls, except for the short time that Sir Lloyd Kenyon held that office; he was at variance with Sir Thomas Sewell, and he refused contemptuously to co-operate with Pepper Arden, whose appointment he had strenuously opposed,—saying to Mr. Pitt, "I care not whom the devil you appoint, so that he does not throw his own damned wallet on my shoulders, instead of lightening my burthen."

To finish the sketch of Thurlow as a Judge, it may be convenient to state here that he gave considerable satisfaction in the House disposing of writs of error and appeals in the House of Lords. In all English cases, he summoned the Judges, and was guided by their opinion. The Scotch cases sometimes puzzled him, as he was neither a great feudalist nor civilian, but his own practice in Scotch appeals when at the bar had ren

* 2 Dickens, 712.

CLVII.

dered him tolerably familiar with the procedure of the Court CHAP. of Session; after the able arguments at the bar, he could generally guess at the conclusion with considerable confidence; and he had always in reserve the comfortable resource of affirming without giving any reasons.

The most important case which the House decided by his advice, was Bruce v. Bruce; in which Major Bruce, a son of the famous Abyssinian traveller, having been born in Scotland, and having died in India in the service of the East India Company, the question arose by what law the succession to his personal property, which was partly in India and partly in England, was to be governed? The Court of Session decided, that the law of England should prevail as the lex loci rei sitæ, Lord Thurlow was of opinion that the judgment was rightbut only on the ground that the intestate had died domiciled in India. When he agreed with the decision of the Court below, he had hitherto simply declared that the judgment was affirmed. On this occasion, however, he spoke as follows: "As I have no doubt that the decree ought to be affirmed, I would not have troubled your Lordships by delivering my reasons, had I not been pressed with some anxiety from the bar, that if there was to be an affirmance, the grounds of the determination should be stated, to prevent its being understood that the whole doctrine laid down by the Judges of the Court of Session had the sanction of this House. The true ground upon which the cause turns is the Indian domicile. The deceased was born in Scotland; but a person's origin is only one circumstance to be regarded in considering by what law the succession to his personal property is to be regulated. A person being at a place is, primâ facie, evidence that he is domiciled at that place. It may be rebutted, no doubt. A person may be travelling; on a visit; he may be there for a time, on account of health or business. A soldier may be ordered to Flanders, and an ambassador may be sent to Madrid, where they may remain many months; England is still their domicile or home. But if a British man settles as a merchant abroad, and carries on business there, enjoying the privileges of the place, and dies there, his original domicile is gone; although, had he survived, he might possibly have

His famous Bruce v. Bruce, laying down the rule with re

decision in

spect to do

micile and

the succes

sion to personal pro

perty.

CHAP.
CLVII.

Thurlow takes his seat in

of Lords.

returned to end his days in his native country. Let it be granted, that Major Bruce meant to return to Scotland; he then meant to change his domicile, but he died before actually changing it. All the discussion we have had respecting the lex loci rei sitæ is immaterial. Personal property, in point of law, has no locality; and, in case of the decease of the owner, must go wherever, in point of fact, situate, according to the law of the country where he had his domicile. To say that the lex loci rei sita is to govern the succession to personal as it does to real property, the domicilium of the deceased being without contradiction in another country, is a gross misapplication of the rules of the civil law and jus gentium; though the law of Scotland, on this point, is constantly asserted to be founded upon them."*

Thurlow took his seat in the House of Lords rather irregularly on the 14th of July, 1778,-to which day parliament the House had been prorogued at the conclusion of the preceding session. The Houses now met not for the despatch of business, but only to be again prorogued; and, without a speech from the throne stating the causes of the summons, I doubt whether any business whatever can properly be done. Perhaps Thurlow ought to have merely occupied the woolsack as Speaker-but the Journal of this day contains the following entry: "The Lord Viscount Weymouth signified to the House that his Majesty had been pleased to create Edward Thurlow, Esq., Lord High Chancellor of Great Britain, by the style and title of Baron Thurlow, of Ashfield, in the county of Suffolk: whereupon his Lordship, taking in his hand the purse with the Great Seal, retired to the lower end of the House, and, having there put on his robes, was introduced between the Lord Osborne and Lord Amherst, also in their robes; the Yeoman Usher of the Black Rod, Clarencieux King at Arms (who in the absence of Garter officiated on this occasion) in his coat of arms, carrying his Lordship's patent (which he delivered to him at the steps before the throne), and the Earl of Clarendon (who officiated in the

* Robertson's Law of Personal Succession, 121. A still more important case from Scotland, before Lord Thurlow, on the conflict of laws, was Hog v. Lashley (ib. 126.); but as he simply affirmed, without saying a word upon any of the important questions which it involved, I must reluctantly pass it over without further notice.