CHAP. CLXVIII. manner not quite unexceptionable, and he decidedly misdirects, by saying, "You are only to inquire whether the A. D. 1780. party accused is charged with such probable circumstances as to justify you in sending him to another jury;" for a Grand Jury ought not to find a true bill unless a case is made out before them against the accused, which, if unanswered, would justify the petty jury to pronounce a verdict of guilty.* Censure upon him for his in on this oc casion by Burke. By Lord Burke, feeling that his advice had been thrown away, observes in the "Annual Register," then under his care: temperance "This charge having been the topic of much conversation, we submit it to the judgment of our readers. The opinions of men respecting the legal propriety of it have been various; as a piece of oratory it has been admired; but its tendency to influence and direct the jury, and inflame their passions against men who ought all to have been supposed innocent till found guilty by their country, has been generally spoken of in terms of indignation by those who are jealous of the rights of humanity." † "Within a short month after the riots themselves," says Lord Brougham, "six and forty persons were put upon their trial for that offence, and nearly the whole of the Chief Justice's address consisted of a solemn and stately lecture upon the enormity of the offence, and a denial of whatever could be alleged in extenuation of the offenders' conduct. It resembled far more the speech of an advocate for the prosecution than the charge of a judge to the grand jury. ‡ Again, when we find a composition which all men had united to praise as a finished specimen of oratory falling to rather an ordinary level, there is some difficulty in avoiding the inference that an abatement should also be made from the great eulogies bestowed upon its author's other speeches which have not reached us; and we can hardly be without suspicion that much of their success may have been * See Lord Shaftesbury's case, antè, Vol. III. Ch. XC. † Ann. Reg. 1780. In the present time no counsel in opening a prosecution would venture to make such a speech, for it is chargeable not only with inflammatory topics but with a wilful over-statement of the facts of the case. owing to the power of a fine delivery and a clear voice in CHAP. setting off inferior matter.”* CLXVIII. D. I do not find any complaint against Lord Loughborough A. 1. 1780. in the progress of these trials, when he came to sum up particular cases to the petty jury. All the prisoners tried before him on this occasion were men of an inferior condition of life, and were clearly guilty in point of law of the felonies for which they were indicted; but as they had been urged on by fanatical zeal and the blind fury of others, Burke compassionated their condition, and wrote to the Chief Justice the following letter, so creditable to his humanity, — in the vain hope of saving them: - "MY LORD, and Letter from Mr. Burke to Lord Loughborough, begging for mercy to the rioters who had been con "I have been out of town for the greater part of the last week, and am only come hither this morning. During that time I have not seen a single newspaper. On my reading the paper of this day, I find that many executions are ordered for this week, although the stock of criminals to be tried is not exhausted; therefore a distinct view cannot be taken of the whole, nor, of course, that selection used, with regard to the number of criminals and the nature of crimes, which in all affairs of this nature is victed. surely very necessary. If you remember, I stated to your Lordship, when I met you at Lord North's, what had struck me on this subject, and I thought it had then his and your approbation. I afterwards mentioned the same thing to the Chancellor, and sent him a memorandum on it just before I left town. I am convinced that long strings of executions, with the newspapers commenting on them, will produce much mischief. I do earnestly beg of your Lordship, whose humanity and prudence I have no doubt of, to turn this business in your mind, and to get the executions suspended until you can think over the matter, with a proper consideration of the whole and of the several cases: for you know what a disgrace it would be to Government that the order of time of trial should settle the fate of the offenders, especially as they are low in condition, and the managers have had the wicked address not to expose themselves. I beg you to excuse my solicitude. *Lord Brougham's Statesmen of George III., vol. i. p. 77. CHAP. CLXVIII. A. D. 1780 Lucky escape of Lord Lord Loughborough as a common law Judge. I am really uneasy, and forebode no good from this business, un- "My Lord, "Your Lordship's most obedient and humble servant, "Charlotte Street, Monday, July 17, 1780."* A great example was deemed necessary, and the rioters were executed by the score. Luckily for Lord George Gordon it was found that he had not done any thing in the county of Surrey which could be construed into an overt act of high treason, and therefore his case was not within the cognizance of this Special Commission. Had his trial now come on, the unexampled eloquence of his counsel would probably only have stimulated the rivalry of the new Chief Justice, and he could hardly have escaped an ignominious death; but it was postponed till the public mind was in a calmer state, and was then presided over by a milder Chief Justice. † Lord Loughborough continued in the court of Common Pleas during a period of nearly thirteen years. As a common law judge he did not stand very high in public estimation, although he displayed some important qualifications for his office and his conduct was not liable to any serious charge. He was above all suspicion of corruption,- he was courteous, patient, and impartial, being neither led astray by the influence of others, nor by ill temper, prejudice, favouritism, or caprice. His manner was most dignified, and from his literary stores, and his acquaintance with the world, he threw a grace over the administration of justice which it sometimes sadly wants when the presiding "puisne” has spent the whole of his life in drawing and arguing pleas and demurrers. By the consent of all, Lord Loughborough came up to the notion of a consummate magistrate, when the cause turned entirely upon facts. These he perceived with CLXVIJI. great quickness and accuracy, and in his summing up he ar- CHAP. ranged them in lucid order, and detailed them with admirable perspicuity as well as elegance, as well as elegance, so as almost with certainty 1780-1792. to bring the jury to a right verdict — instead of wearying and perplexing them by reading over the whole of his notes of the evidence, interlarding it with twaddling comments. But it was soon discovered that he was sadly deficient in a knowledge of the common law, and no confidence was reposed in his decisions. He must have been aware of this defect himself, and if he had supplied it (as he might have done) with the energy he had displayed in getting rid of his Scotch accent, he would have rivalled Mansfield; but he did not consider professional ignorance a bar to the accomplishment of his ambitious projects. The Great Seal was his dream by night, and the subject of his daily contemplations, and this was to be gained not by a reputation for blackletter lore, but by struggling for a high station in the House of Lords, and by watching and improving party vicissitudes. He thought that by a discreet use of the scanty stock of law he had scraped together, and by availing himself freely of the assistance of his brethren, he could decently get through the duties of his present office, and that when not engaged in the actual discharge of them, he could spend his time most profitably as well as most agreeably in preparing himself for parliamentary contests, and in keeping up his political connections. His desire that the public should think there He was, however, considerably mortified by observing the very small number of suits which caine before him,-while the neighbouring Court of King's Bench was overflowing, and he was accused (probably very unjustly) of trying to induce plaintiffs to resort to him by summing up for heavier ness in his damages than they could have got elsewhere.* He certainly was very anxious to conceal from the public the deserted state of his tribunal, and for this purpose he would *This was chiefly alleged with regard to "sea batteries," i. e. actions by sailors against their captains in the merchants' service for flogging them on a charge of mutiny, — and it might probably arise from his attempt to correct such a very questionable system. was busi court. CLXVIII. 1780-1792. CHAP spin out business that he could well have more rapidly disposed of. It is related that once, being indisposed on the first day of his sittings after term at Guildhall, and having a cause paper, which with good husbandry might have lasted a week, he got Mr. Justice Buller to sit for him, who cleared it all off in a few hours, — and, boasting of his exploit, said, in allusion to the unwieldiness and slow motion of the serjeants-at-law the advocates in that Court" I have been giving the heavy blacks a gallop this morning." His deci sions. Q. Whether the poor have a legal right to glean in harvest? During the first eight years of Lord Loughborough's Chief-justiceship, for want of a "vates sacer," his decisions (unfortunately or fortunately for him) have perished, there being a chasm in the series of Common Pleas Reports, from Trinity Term, 19 Geo. 3. (1779), the last by Sir William Blackstone, till Easter Term, 28 Geo. 3. (1788), the first by Henry Blackstone, his son. Those of the five following years make one octavo volume, and among them are to be found some important and well-reasoned judgments. No constitutional question ever came before our Chief Justice, and he had chiefly to decide upon points of practice, and upon the technicalities of real property, which are unintelligible to the non-professional reader. Perhaps the most stirring case which arose in his time, was Steel v. Houghton, where the question was, "whether the poor of the parish have a legal right to glean in a corn-field, after the reapers, in harvest-time?" A benevolent association supported the right, — agitating for it, and defraying the expense of the litigation. They had in their favour one of the Judges of the Court, Mr. Justice Gould, who relied upon certain dieta of Hale and Blackstone, and above all, on the text in Leviticus (xix. 9, 10.): "And when ye reap the harvest of your land, thou shalt not wholly reap the corners of thy field; neither shalt thou gather the gleaning of thy harvest; and thou shalt not glean thy vineyard, neither shalt thou gather all the grapes of thy vineyard; thou shalt leave them for the poor and stranger; I am the Lord your God." A Chief Justice fond of popularity would have gained a great name in the newspapers and with the vulgar, by showing how his Court, when appealed to, could |