. VKOII rmi CHARGES AND OTHER DETACHED PAPERS BARON ALDERSON. SELECTIONS FROM THE CHARGES AND OTHER DETACHED PAPERS OF BAEON ALDERSON. WITH AN INTBODUCTOBY NOTICE OF HIS LIFE, BY CHARLES ALDERSON, MJL FELLOW OF ALL SOULS, OXFORD. LONDON: JOHN W. PARKER AND SON, WEST STRAND. 1858. [The Author retervei the right of Trantla.tion.'] LOKDOW: PAVJLl ABB BDWAEDS, PRINTERS CHANDOS BTBBXT, COTX9T OAIiDES. PEEFACE. IT has been felt that the 'Charges and other Papers,' to which this Memoir is only offered as an introduction, woiild be read with greater interest if preceded by a slight sketch of their Author. With this end in view, it has been placed before them. In itself it does not affect to do more than connect by a thread of general narrative, principally drawn from his own correspondence with various persons, the points which call for notice in the Life of which it treats. If his Letters, as thus presented, serve to illustrate his character still more, if they succeed in placing before the reader his motives and conduct in their true light its purpose will have been fully accomplished. 2066741 CONTENTS. PAGE Introductory Notice of the Life of Baron Alderson . . 1 The Charge to the Grand Jury of the County of Dorest, at the opening of the Special Commission at Dorchester, on Tuesday, nth January, 1831 171 The Charge delivered at the County Hall, Chester Castle, December 6th, 1848 182 Observations on the Ministerial Bill for the Abolition of the Removal of the Poor. A portion of the Charge delivered to the Grand Jury at Hertford, at the Spring Assize of 1854 195 On the Eeform of Youthful Criminals by means of Refor- matory Schools, under 17 and 18 Yic., c. 86, being part of the Charge to the Grand Jury of Yorkshire at the Winter Assize, 1854 200 The Charge delivered at the Liverpool Winter Assizes, in " December, 1856 - ...... 209 The Answers of Mr. Baron Alderson before Committee of House of Commons, April 8th, 1847, on Prison Dis- cipline 214 A Letter to a Friend . . . . . 224 A Letter to the Bishop of Exeter 230 viii Contents, PAGE A Second Letter to the Bishop of Exeter 237 Translations 246 APPENDIX I. Judgment No. i . Miller v. Salomons 267 Judgment No. 2. R. v. Serva and others .... 273 Judgment No. 3. Knight (Clerk) v. Marquess of Waterfowl 276 APPENDIX II. Report of Mr. Alderson's Speech in his Summing-up on the East Retford Disfranchisement Bill, Monday, i2th July, 1830 283 INTRODUCTORY NOTICE OF THE LIFE OF BARON ALDERSON. TT'DWARD HALL ALDERSON was the eldest son of .1 ^ Mr. Robert Alderson, who for many years held the combined offices of Recorder of Norwich, Yarmouth, and Ipswich. Although he was himself a native of East Anglia, and during the latter portion of his life, in consequence of his official duties, resided in the city of Norwich, Mr. Robert Alderson was descended from a family long settled at Ravenstondale, in the north of England, upon the borders of Yorkshire and Westmoreland. He had some- what late in life, at the suggestion of a relative, chosen the Bar as a profession, and coming to London, engaged chambers in the Inner Temple for the study of the law, and ultimately its practice. After a career of some years in the metropolis, attended with a fair amount of success, he retired into his native county, which he found a more congenial sphere of action. Though never attaining emi- nence as a barrister, his views on law were sound and sensible ; and this, added to his high character, agreeable social qualities, and practical ability, served to recommend him, in course of time, to the three corporations, who in succession nominated him to the post of their principal law officer. The duties of these offices he discharged with B 2 Introductory Notice of the great efficiency, till the infirmities of old age and disease rendered him incapable of continuing to perform them, and necessitated their resignation ; but not before he had been permitted to anticipate confidently a still more honourable connexion of his name with the profession than had already resulted from his own services; and, indeed, to receive in his house at St. Helens, if not in his official capacity, his eldest son as Judge of Assize on the Norfolk Circuit. Edward Hall, his eldest son, was born at his grand- father's house at Yarmouth, on Sept. nth, 1787. He was at an early age deprived of a mother's care; Mrs. Alderson dying of consumption after the birth of two younger children, in the year 1791. The premature loss of that maternal superintendence which exercises so salutary an influence upon childhood was ever the subject of his life- long regret. It breathes in the following passage in a letter written many years later to a near relative, whose infant children had, by the death of their mother, been left in circumstances somewhat resembling his own. ' I feel for your children more than they can, poor babes, feel for themselves as yet. They are, as I was, without a mother's care at an early period of life, and I know how much of advantage they lose, and of the purest pleasure/ On his mother's death he passed with his brother and sister under the care of their grandfather, Mr. Hurry, whose house at Yarmouth, in the absence of their father in London, became their permanent home. That which was in one point of view an irreparable loss, may have been in another beneficial. He may have owed, in some part at least, to the comparative isolation of his boyhood, the early acquired habits of observation and independent thought. Not that, while residing with his grandfather, Life of Baron Alderson. 3 his education, in the ordinary sense of the term, met with any neglect. He was, in the first instance, sent to a day-school in the adjoining parish of Gorleston, then kept by a Mr. Wright, from whom he received his first instruc- tion in the elements of Latin ; and here he continued regularly to attend, until through the kindness of a friend of his grandfather this arrangement was, in the course of time, superseded by another. This gentleman, per- ceiving the genuine desire to learn which the boy dis- played, not only consented to give him private instruction, but also by good-naturedly promoting, out of school hours, any study which he appeared specially to affect, greatly stimulated his literary and scientific tastes. The very absence at this period of a more fixed and undeviating course of study would seem to have operated advantage- ously. Not only was his appetite for general knowledge whetted by the encouragement thus freely afforded, but also, as the director to a certain extent of his own studies, he was led to invent for himself, as it were, a set of mental rules, which were of invaluable service to him in after life. Foremost among these was that of a clear and systematic arrangement in his mind of all that he learnt ; a secret to which in after life he would often attribute his academic success, and constantly urge on all who would seek to turn mere bookwork to real account. It will suffice to mention briefly the several stages of his school career. Before the close of the century, having reached an age when a more regular course of mental training was thought desirable, he was placed by his grandfather at a school at Seaming, near Dereham, in Norfolk, kept at that time by Mr. St. John Priest, and memorable as having been the educational cradle of Lord Chancellor Thurlow ; as was remembered with pride when young Alderson was enrolled among the scholars. He B 2 4 Introductory Notice of the did not remain here very long. In 1800 the relative, to whose affectionate solicitude he already owed so much, died. That he retained to the end a deep interest in the future prospect of his daughter's children was shown remarkably by the tenor of his will, in which were entered special instructions that his grandchildren should receive the best possible education. To meet wishes so em- phatically expressed, his son-in-law determined on re- moving his eldest son from Seaming, and sending him to one of the greater Foundations. The Charter- house was selected, presided over at that period by Dr. Matthew Raine; and the first year of the opening cen- tury saw Edward, now a boy of thirteen, transferred from ' the garden of Norfolk/ as the numerous orchards round Dereham have caused its neighbourhood to be named, and consigned to the smoke and fog of the metropolis. It is a little remarkable that a climate which pre-eminently agreed with his constitution in after life, affected it in the first instance injuriously. His health began, after some little time, so sensibly to fail, that his father, alarmed lest he should fall a victim to the disease which had already been fatal to several of his family, determined on removing him from London ; and it was ultimately arranged that he should be sent, on his complete recovery, to the Grammar School at Bury St. Edmund's, at the head of which at that time was Mr. Beecher, and which had the reputation of being ably conducted. Hither accordingly he proceeded, and met for the first time among his schoolfellows several with whom he was destined after- wards to compete, both on the arena of the University, and the Bar. Among others was one deservedly eminent in a different walk of life from his own whom the same year has seen gathered to his last resting-place the late Bishop Blomfield ; the friendship with whom, engendered Life of Baron Alderson. 5 in school and college days, was maintained during the course of years devoted to the discharge of their respective public duties. Such was the outward course of his school career : it would be a subject of more interest to notice how each successive stage served to develope further the powers of an understanding at once vigorous and acute. Doubtless at Bury, as at Seaming, much of scholarship and science was added to his growing stores ; which, by means of a naturally powerful and accurate memory, he was enabled, to a remarkable degree, to retain and arrange. That faculty was early strengthened and improved by artificial means ; and by nothing more than by the two rules laid down in the following extract, in which, in after life, he is only recommending to another what he had long practised himself : What we wish to rememher we should attend to, so as to un- derstand it perfectly, fixing our attention specially on its most important and distinctive features. We should disengage our minds for the moment from other things, that we may attend effectually to that which is before us. No man will read with much advantage who cannot empty his mind at pleasure of other subjects, and does not bring to the author he reads an intellect neither troubled with care, nor agitated with pleasure. If the mind be filled with other matters, how can it receive new ideas ? It is a good practice to improve the memory, and far better than making notes or transcribing passages at the time, to read carefully, and after the lapse of some days to write an abstract of what has been read. And this will give us the habit of storing up for future use our immediate acquisitions in knowledge. Again, memory is assisted by an orderly arrangement of the thoughts. It is obvious that in recollecting a speech or discourse that is most easily recalled in which the argument proceeds from one step to another by regular induction. So we ought to con- duct our studies otherwise our knowledge being in confusion, our memory will be defective. 6 Introductory Notice of the But by far the most characteristic feature of his mind was the habit of picking up information at all times and on all points, the most varied and dissimilar. The ' ob- serving faculty' was never asleep, being constantly exer- cised upon all that came in his way deserving of notice ; and if knowledge of some kind or other was to be acquired, the opportunity was never lost. From his boyhood, the habits of an animal, the structure of a plant, was in his eyes full of interest ; and thus early in life, from his per- sonal observation, no less than from books, of which he was an indefatigable reader, he began to amass the fund of general information which distinguished him as a man, and which embraced, to some extent, an infinity of subjects. The holidays were spent at St. Helens, in Norwich. During such seasons of leisure, despite his classical predi- lections, Edward entered with keenness into the pursuits which are deemed the more natural objects of a schoolboy's ambition. He was fond of riding even indulging now and then in a day with the hounds. In another physical accomplishment, too, he excelled, being an expert jumper. Of the value of all such manly recreations, in due subordi- nation to more important matters, he retained through life a strong opinion, considering them to constitute a most useful element in the training which school-life affords. Thus, in after life, when himself the father of boys at school, he addresses one of them : I have sent you to Eton that you may be taught your duties as an English young gentleman. The first duty of such a person is to be a good and religious Christian, the next is to be a good scholar, and the third is to be accomplished in all manly exercises and games, such as rowing, swimming, jumping, cricket, and the like. Most boys I fear begin at the wrong end, and take the last first ; and what is still worse, never arrive at either of Life of Baron Alderson. 7 the other two at all. I hope, however, better things of you : and to hear first that you are a good, truthful, honest boy, and then that you are one of the hardest workers in your class, and after that, I confess 1 shall be by no means sorry to hear that you can show the idle boys that an industrious one can be a good cricketer, and jump as wide a ditch, or clear as high a hedge as any of them. But literature of all sorts, and the composition of verses in English or Latin, remained after all the chief amusement of his leisure hours. At one time a drama was begun on the subject of the ' Siege of Calais/ and a whole act of blank verse accomplished. Or some chance circumstance furnished him with a topic for an epigram, of which he hastened to avail himself. Upon one occasion, an old willow-tree in his father's garden, on the banks of the river Wensum, was blown down, and its fall and conver- sion into a garden seat commemorated in the following lines : Arbor eram ; sedem Boreas fecere Notusque ; Defessis requiem nunc, peregrine, fero. Sed neque divulsas frondes fractumve cacumen Jam queror ; his moriens utilis esse queo. Quin, tibi Vensumi quisquis petis advena ripam, Decutiet nigras mors inimica comas ; Vive tuis patriseque, mei memor, ut tibi possit .ZEternum vitae finis habere decus.* * Translation of Latin lines. I who afford the weary rest, Once raised to heaven my feathering crest, A tree till envious winds o'erthrew, And gave me form and posture new. What tho' my leaves be dry and dead, Shattered the boughs that graced my head, If still 'tis given me here t' achieve Some useful purpose, wherefore grieve ? 8 Introductory Notice of the The summer of 1804 saw the end of his school career. An arrangement had been made by his father to send him as a private pupil, before going up to the University, to Mr. Maltby's, the late Bishop of Durham. Accordingly, after the holidays, he proceeded to Buckden, in Hunting- donshire, where Mr. Maltby then resided; and where, with a few other select pupils, he was to have the advan- tage of his eminent assistance in his classical studies. Here he remained fifteen months assiduously devoting himself to his books. ' During this time/ says the Bishop, writing after an interval of many years, 'he conducted himself so uniformly well as to make it a pleasure for me to have him for an inmate. Respect- ing application to his studies, I have often remarked that I never saw any one so eager for information, and so ready to profit by it, in whatever shape it was supplied. To this feature of his character, which, so far as my experience goes, he possessed in a degree superior to what I have ever observed, I attribute in a great measure the success which attended him in every stage of his subsequent life/ How great was the benefit of Mr. Maltby's tutorial ministrations, may be gathered from the significant fact that among this contemporary batch of pupils may be found a Senior and Second Translation of Latin lines continued. Rest, traveller, rest nor scorn in me A salutary truth to see Injurious death must rob thy brow Of each dark tress that crowns it now. So live, intent on others' weal, That though thy bloom the tyrant steal, Thy friends and country still may find Some lasting good yet left behind. Life of Baron Alderson. 9 Wrangler, two Chancellor's Medallists, and two Smith's Prizemen.* The fifteen months thus quickly passed away in diligent preparation for exertions on a more extended scale, and amidst the competition of Cambridge ; whither, in the October of 1805, Alderson proceeded to take possession of his rooms at Caius College, of which he had been enrolled a member. Originally his name had been entered at Trinity, but his father had been subsequently induced, by the repre- sentations of a relative of his own, engaged in work as tutor of Caius, to transfer his son, of whose career at the University the highest expectations were entertained by all to whom he was known, to the roll of the adjoining college, where, with a few others similarly transferred, he accordingly commenced keeping Terms. The favourable anticipations of a relative might be open to the suspicion of partiality; they appear, however, to have been enter- tained to an unusual degree by all who had any acquaint- ance with his intellectual powers. Although thus coming up to college with what experience often proves to be ' the perilous inheritance' of a school-acquired reputation, and fully conscious that his career was the centre of many anxious hopes, he was neither made nervous nor oppressed, as many a young man is, by the knowledge of what is expected of him by his family and friends. On the con- trary, there was apparent from the first in him a firm, but modest determination to be content with nothing less than the highest honours. ' If any one had offered me, when going up to college, the place of second wrangler, I would have at once refused.' Such in after life was his description of the tone of his mind at the outset of his In the persons of Messrs. Brandreth, Standly, and Alderson. 10 Introductory Notice of the academical career ; and, without doubt, in that resolve lay the secret of his subsequent success. His life at college was regular and studious, and yet in some respects characteristic. Despite of college require- ments, he could never bring himself to a regular attendance at morning chapel, being by habit a late riser. In another particular he displayed a remarkable self-denial. Al- though a frequent host and guest, he laid down a rule, which he rigidly observed whilst at Cambridge during the three years of his undergraduate life, to abstain from wine : fearing lest its effect, even taken in moderation, might be injurious to evening work. In other respects, study was too natural a taste to entail much effort. A rule which he laid down for himself at the outset, of reading a certain number of hours each day, not only rendered any excess of applica- tion, as the time of examination approached, unnecessary, but was also found to allow a sufficient margin for fully participating in the social enjoyments of college life. Under any circumstances, the rapidity and ease with which he worked, and the intellectual vigour with which he grappled with each difficult subject, would have gone far to make his career at college not only successful, but to be reckoned as amongst the most agreeable periods of his life. The second year of his residence was signalized by his obtaining his first University honour, Sir Thomas Browne's Medal, for the best Greek and Latin epigrams. In the following letter the ceremony of ' keeping an act' in the schools an excellent exercitation for a youthful debater is described : I have at present kept an Act, or in other words, defended against the objections of three opponents, three mathematical and metaphysical subjects, which were the seventh section of Newton's Principia the Phenomenon of the Aberration of the Fixed Stars and Locke on the Degrees of Knowledge. I believe I overthrew most of the objections, and got a very good Life of Baron Alderson. 11 ' Honour' (as it is called) from the Moderator. Tu domine respondens omni tuo officio satis et prsestanter functus es. I likewise, a day ago, was first opponent or objector against another man, and got a very good honour. Omnia tua argumenta praestanter intellexisti et defendisti. The vacations, as his holidays had been, were spent at St. Helens. Not that he availed himself to the full extent of the leave of absence which Alma Mater proffers, being usually to be found at Caius in the summer up to the end of July, when the college was definitively closed. And in winter it was his habit not to anticipate by much more than a few days the merry family gathering which met round his father's table at each recurring Christmastide. On such occasions his talents were invoked by general consent for the composition, not of prose or verse, but of a brimming bowl of punch, in the admixture of which he was pronounced to excel. It was for such seasons, when home was revisited, that a peculiar gratification was reserved for him in the society and intimate friendship of his eldest sister, Isabella. To charms of person she united a quality of mind which one like her brother could not fail to appreciate. Like him, reading was her passion ; and in common with him she possessed the faculty of mastering with astonishing ease the pith of what she read. In her judgment, on a variety of subjects, he placed great reliance; and nothing, perhaps, gave him more delight in a temporary return to St. Helens, than the return to a personal interchange of thoughts and ideas with a sister so admired and so beloved. Such a gratification, however, was not to last long. The hand of the fatal malady which had destroyed her mother was already upon her, and month by month strengthened its deadly hold, until in 1807 she finally drooped and died. What the loss of her companionship was to her brother, ]2 Introductory Notice of the and how keenly he felt it, immersed as he was at the time in study at college, may be gathered from the following pathetic allusion in some lines written in the hour of his subsequent triumph, upon the occasion of another sister's marriage : E'en 'midst the contests of the classic shade, When Learning hailed me for her fav'rite son, I felt a void for she, alas ! was dead Whose smile had more than graced the triumph won. In her consumption's varied sufferings charmed, Still more endeared by sickness' languid mien, Now hope alternate cheered, now fear alarmed, Till Death, slow sudden, closed the flickering scene. So have I seen the canker's deadly power E'en in its pride destroy the lovely rose, While, sweet in death, the slowly withering flower Around its stem a parting fragrance throws. The whole of the summer preceding the Degree Exami- nation was passed at Cambridge, with little to break the monotony of daily work. The cloud which the death of his sister threw over his life was not permitted long to obscure a disposition so constitutionally joyous and hope- ful: it passed away by degrees in hearty wholesome sorrow ; and in mental occupation which thickened upon him as the winter of 1808 approached, he incidentally found the truest solace, the more so, that even from the untimely death of her who had been his earliest companion and friend, he drew an additional motive for endeavouring to distinguish himself, in the thought of the pleasure his success would have given her if living. ' Do you know/ he says, writing to his only surviving sister, who had suc- ceeded to that close intimacy which he loved to encourage, ' that I have taken into my head what I hope will be a still greater incitement to me to endeavour to distinguish myself that at any rate, if she will not feel any addition to her Life of Baron Alderson. 13 happiness now, yet she would if she were alive have felt it so and that it is a sort of sacred duty I have to perform.* And yet at no time was study ever so engrossing as to exclude home persons and objects. Even in the midst of the hardest reading, time is found for revising and cri- ticising verses, which his sister would from time to time amuse herself by transmitting. The following, a little grandiose perhaps in style, serves to show with what warmth of interest and thoughtful anxiety he watched the progress of her education and the development of her intel- lectual faculties : I suppose, my dear B , you are by this time at Notting- hill, and congratulate you most sincerely on your arrival. May I hope you will want no incentive to employ your time there as profitably as possible, that I may be proud to call you my sister. I have on that score no fears. Do not, however, in the pursuit of accomplishments, neglect necessaries to make yourself an agreeable companion. By accomplishments I would here mean personal accomplishments, as drawing, music, dancing, &c. ; by necessaries I mean mental improvement, as history, poetry, geography, chronology. As to these latter, perhaps, a slighter knowledge would be sufficient. Heaven send my sister may not be such a milk-and-water character as most women at present are. I would not have you a blue-stocking, nor a mere machine, to make merely your entrance and exit in the drama of life. I was much pleased with your parody but give me leave to suggest a third line in the first stanza, as conveying a more na- tural image. At length the time of examination arrived, and the result, announced in January, 1809, did not cause much surprise, however great the satisfaction it created, among the family and friends of the successful competitor. Alderson was declared Senior Wrangler, and immediately after ist Smith's Prizeman, an honour which usually, but not always, falls into the wake of the former distinction. 14 Introductory Notice of the ' Edward/ writes his brother, from Cams, telling the news of his success, 'has just completed his Senior Wrang- lership, if I may so express myself, by gaining the First Smith's Prize. I understand he beat the others hollow in the examination. Indeed, one of the Moderators came up to him after he was declared Senior Wrangler, and said, ' Mr. Alderson, I congratulate you ; but you must have known where you would be before you began/ ' To-day he has left Cambridge with Mr. Maltby, with whom he stays a week, and then returns to read for a classical prize/ ' Don't think to see me before Easter/ he writes himself a few days later to his sister. ' It is out of the question, as I shall be better employed in trying to add another feather to my cap by classical acquirements. In this, too, I know I have your good wishes.' This interval of special preparation for the Classical Examination was turned to good account. He was in due time announced as First Medallist, thus completing, by this last achievement, a list of honours almost unequalled in the annals of the University.* No element entered more largely into the satisfaction which he personally felt at the result of these examinations, than the thought of the gratification it gave his family, and especially his father. ( I often remember/ he says, urging on his own son, many years afterwards, the various incentives to study, 'and that, with the greatest satisfaction, that in this respect God enabled me to give pleasure to my father ; and now that I have children of my own, I feel how great that pleasure must have been.' * The only other degree identically the same was that of Mr. Brandish, of Caius, in the year 1773. The late Bishop of Lincoln, Dr. Kaye, was Senior Wrangler and First Medallist, but missed the First Smith's Prize. Life of Baron Alder son. 15 The first result of so brilliant a degree was an imme- diate election to a Fellowship. It will be conceived that an interval of well-earned repose upon his laurels was thoroughly appreciated. The text-books of graver studies were laid upon the shelf, or replaced by literature of a lighter order the English poet or humourist, for whose pages he possessed so keen a relish ; and between hours so given to leisurely enjoyment, and his daily rides in the neigh- bourhood of Cambridge, with the excitement now and then of an evening debate in the Union Society, of which he was one of the first founders, this happy breathing time passed swiftly away. His last appearance in what may be called a public capacity at Cambridge, was on the occasion of the instal- lation of the Duke of Gloucester as Chancellor, when he recited in the Senate House his father being present, a proud and delighted listener a Latin Essay on the Comparison of Ancient Dialogues with Modern, to which the Members' Prize for Senior Bachelors, as that for Middle Bachelors in the preceding year, had been adjudged. In the course of the year 1 809 he proceeded to London to commence the profession which he had chosen, by reading law and keeping law terms. The following lines, written on leaving St. Helens for the metropolis, express some- thing of his feelings on leaving home to begin the law : As one condemned on unknown seas to sail, When from the port his little bark he steers, Gazes awhile his eyes suffused with tears Ere yet he spreads his canvas to the gale, So do I now forsake with anxious fears, Home of my forefathers, thy peaceful dale; For other prospect to my view appears, Half hid beneath futurity's deep veil. Me now the busy world's unceasing strife, The throng of cities and the hum of men, 16 Introductory Notice of the And all the crowded walks of active life, Call from thy rustic Muse, and silent glen ; Oh ! when shall I from cares like these be free, To dream of pleasure, and revisit thee ! He had been already entered at the Inner Temple, and on arriving took possession of quarters within the precincts of that Society, and began forthwith a daily attendance at the chambers of Mr. Chitty the special pleader. Under such able guidance he devoted himself to the laborious study of the science of special pleading; while his remarkable powers of reading found material for exercise in plenty in the old Text Books and Law Reports. It was his constant practice, too, to devote a certain portion of time to atten- dance in the courts themselves, where he took careful and copious notes of the arguments and the proceedings gene- rally. In this routine of daily labour and diligent study of the principles of jurisprudence, the young Templar served his novitiate not, however, engrossed to an extent which precluded a thoroiigh appreciation of the multifarious recreations which a residence in London placed within his reach. In 1811 he was called to the bar, and joined for the first time the Northern Circuit and Yorkshire Sessions. Some of his impressions of persons and places may be best gathered from the following letter addressed to his father, towards the conclusion of his first circuit : Lancaster, Sept. 10, 1811. I arrived at this place last Wednesday, and shall leave it at the end of this week. I return to the Lakes, which I passed through on my way hither, and hope to visit Kavenstondale on my passage. I am going to spend a few days at Brougham Castle the house of the great Mr. Brougham's father. This invitation was unexpected by me, but, as you may suppose, I am not a little gratified that my acquaintance should be sought by Life of Baron Alder son. 17 so distinguished a man. I have made several very agreeable ac- quaintances on the circuit, and particularly that of the gentle- man whose frank this is, the eldest son of Lord Auckland, and one of the most agreeable young men I ever saw. I am going to Durham from Mr. Brougham's house, and after staying a few days there, shall go on to Hull to the sessions, and from Hull to Manchester. If you will write to the presiding magistrate at the last place, it will be of some service to me. I find it is there the custom to give a brief to every young barrister, which they call his soup-ticket ; so I shall have some business. I like our sessions leader, John Williams, very much. What business he is in ! and certainly most deservedly. In a few years he must, I think, lead this circuit. Scarlett is the great man here. He has by far the most business ; and when, as is expected, .he gets a silk gown, he will annoy either Park or Topping a good deal. Allan Park has been very civil to me. He inquired for you, and said he knew you. On the Lake scenery, which he now saw for the first time, he is more enthusiastic : I think [he continues] I never was more delighted than when I first saw Derwentwater, situated so beautifully as it is between Skiddaw at one end and Borrowdale at the other, with the cataract of Lodore in sight. While the lake was bright and calm, Borrowdale and its entrance was overhung with dark black clouds, and it seemed as if it were the entrance to Tartarus. The mountains on the side of the lake are so various in their sizes, shapes, and substances ; on the one side the precipitous stony ridge of Castle Crag, on the other the Red Pike, and in front of this a grassy mound of a different shape. On the whole, I am inclined to admire this lake the most. I have not, however, as yet seen Ulswater. On the road to Ambleside we stopped at Wythborn, and ascended Helvellyn. When at the top, the sin- gularity of the comparative lowness of many of what we had called mountains when we were below, was striking. One in particular, a steep stony precipice, called Eagle's Crag, which we had remarked as extremely lofty, now seemed so low that it ap- peared as if we could have stepped down from the top to the C 18 Introductory Notice of the ground below. What a singular effect ! and so I suppose when one rises in the world, the men, too, whom we think our present Eagle's Crags, we shall, if ever we rise to the top of a political Helvellyn, look down upon in the same way. At Carlisle briefs were not so plentiful as to prevent a visit to what he informs his sister, writing from Newcastle, is ' not an unfrequent lion for the juniors on the circuit/ Although you are perhaps not aware of any secret attachment which I nourish, I now tell you that I am just starting to Gretna Green ; with whom is at present a secret. Pray break it as well as you can to my poor father I was at the ball here on Monday. The rooms are very fine, and were well filled, and with a great number of pretty women, greatly to the credit of Northumberland beauty. Dick Wilson was there, quite in his element, knowing and known of all. He invited me very cordially to come and see him at Bilderstone in October, which I believe I shall do. I shall certainly remain in this part of the country till the middle of October, and shall then come for a few days into Norfolk, on my way to London. Travelling was so far more serious a matter in 1811 than it is at present, that, once arrived in the regions of the north, he did not think it worth while to turn his steps southwards until after the autumnal sessions; whiling away the month which intervened between the conclusion of the circuit and the beginning of sessions work in visits to friends or relatives resident in that part of the country. After so employing his interval of leisure, in this instance in staying at the homes of some of the agreeable acquaint- ances to which the circuit had introduced him, he was called away from a succession of very pleasant visits to attend the West Riding Sessions. The following letter, written to his sister from Harrogate, whither, as close to the scene of action, he had repaired, accounts for his doings since the end of circuit. Life of Baron Alder son. 19 Harrogate, Oct. 7. The Sessions being at Knaresborough to-morrow, and Knaresborough being within two miles of this place, I have taken it on my way from Durham, and arrived here the night before last accordingly. Harrogate is only the shadow of what it was a few weeks ago. Only the latter brood of waterers remain. I have not tasted the water yet, but intend myself that pleasure this morning, unless I am prevented by the rain, which threatens so much as to put an end to another intention of mine, viz., of seeing Fountain's Abbey. I shall, I hope, see that celebrated pile some future time, perhaps with you ; and under that agreeable impression shall cease to lament my present failure. I have been staying since I last wrote to you with Mr. Brougham, at his seat in Westmoreland, where I spent a week in the pleasantest manner possible. The family is extremely amiable, seeming completely to love one another, and looking up to their eldest brother as to a superior man, as indeed he is. There is an excellent library there. Our party for the two last days was increased by another barrister, Mr. Grey, nephew to the member for Newcastle, Mr. Brandling, and a relative, though distant, of Lord Grey's. He is another of the agreeable ac- quaintances I have formed on the circuit, being an Oxford man, and a Fellow of Oriel. I think you had the impertinence to ask how I came to be acquainted with Brougham. Answer it yourself, madam ; I cannot for modesty's sake. To be serious, however, he sought my acquaintance ; as although I was from the first extremely desirous of knowing him, I scorn to court any man whom I consider my superior. Besides, my own observation even on this circuit has taught me that the real way to become acquainted with any one is not to be forward. This was particularly exem- plified by one other junior and myself. He, as soon as he got into the mess-room, called everybody by their sirnames, and made himself quite free and easy. I pursued my plan and at the end of the circuit I know everybody, and he nobody. After spending my week with Brougham, I went on with Grey to do the same at his father's house, near Newcastle. It is a handsome large stone house, the residence of an opulent 20 Introductory Notice of the country squire. There, too, I was quite at my ease, liking my society, and I hope liked of them for these are generally con- vertible terms. I was vastly inclined to have stayed a little longer, but my Durham engagement pressed. After visiting Manchester, where the ' soup-ticket ' was duly forthcoming, he proceeded to the south, paying a visit of a few days to Norwich upon the way up to town. In the May of 1812 the country was plunged into a ministerial crisis by the murder of Mr. Perceval. Of this he is full, when writing in that month to congratulate his sister on her majority, as well as of Bellingham's execution, which his clerk had been to see. The day [he writes] on which you came of age will be easily recollected. It was the day between Mr. Perceval's burial and his murderer's execution. Bellingham was executed this morning ; fortunately without serious disturbance, although Jack Ketch was pelted off the scaffold when he first came to put the rope on the gallows. The rope (singular enough) was then adjusted to the gallows by the clergyman who attended the prisoner, a Catholic priest. After bowing twice to the crowd, Bellingham put the rope on his own neck, fitted it as a man would do a neckcloth, and settled it to his satisfaction. The clergyman adjusted the knot to his left ear. All was over in two or three minutes from his first appearance. There was an unruly disposition in the mob, many expressing wishes that Perceval were hanged instead of the man. In one short week the minister has been assassinated and his assassin executed. What extraordinary times are these ! No surmise of minis- terial arrangements. There is but one that can satisfy the country, and that I fear would overawe too much Calypso* and her whelp of Yarmouth to be carried into effect. The return of summer called him northwards again * Lady Hertford. Life of Baron Atderson. 21 from the distractions and business of London life, the prelude to more extended operations, being an attendance at the West Biding July Sessions. In the following letter he informs his sister, who was at this time residing at Keswick, of the probability of his paying her a visit in the course of the summer or autumn. Temple, Saturday. You may remember Rochefoucault's maxim ' There is something in the distresses of our best friends,' &c. It is true in my case, for I am very glad to hear of your being settled at Keswick, although sorry for the cause. It is not unlikely that I shall trouble you with a month's visitation, for I shall have that interval between circuit and sessions, and I cannot possibly employ it more pleasantly. I always thought Derwentwater the most beautiful of the Lakes, with only the exception (and as usual, suffering much. It is a striking instance of sense and shrewdness outliving the judgment. How grateful I sometimes feel when I remember my dear father's last illness. A pattern 104 Introductory Notice of the he of humble resignation, full of gratitude to me and those who waited on him. To remember him in his last days and on his dying bed, and when his last words were, as I knelt beside him, ' pray for me thyself, also, my dear child,' is one of the greatest comforts of my own declining years. Pray excuse this. It is not often that I am thus carried back to the past. I find that I have written thus far without alluding to this most atrocious deed at Paris [the murder of the Duchess of Praslin]. I should not be surprised if the criminal's having escaped the expected punishment should be made an excuse for a revolutionary out- break, on the plea that his friends furnished him with the means of self-destruction, in order to escape from justice here. The crimes of English men and women seem to increase every day, but they are in low life chiefly, and make no noise. If thou hast not read Appert's account of Ten Years at the Court of Louis Philippe, I think it would amuse thee. I knew him at Paris, where he was called ' Appert le Philanthrope.' He accompanied some friends of mine and myself to the prisons there, in 1829. He talks, too, of so many of the Tiommes marqruants dujour, with whom I associated, that I was especially interested. But had I not known him or them, it would have been almost equally interesting to me ; and his benevolent objects would interest thee, I think. The next occasion upon which Mrs. Opie is addressed, is that of the death of their common aunt, the lady to whom reference has been made. I enter completely [he writes, in the January of 1848], into your feeling of a want of interest arising from the failure of your dutiful occupation of so many years. I am sure that you may feel satisfied that you have done all that an affectionate child could do, and this surely is a great consolation, if, indeed, all the circumstances were not of themselves full of it. If I were asked what I should like best as a memorial, I should say a certain ostrich egg-shell, which I have remembered from youth to old age as a sort of heir-loom in the family. It clearly belongs to you, as the representative of the eldest brother; but perhaps you may not care about it. Pray, however, do as you like best. * * * * * * * Life of Baron Alder son. 105 The Queen's Bench, for the last few days, has been full of Hampden. I am sorry for the whole affair, and angry both with Lord John for raising the storm, and with the Church boluses, who form the constituent parts of the tempest. I wish they had quietly remonstrated, and then, shrugging their shoulders, had said, the responsibility is with your lordship. As it is, I suppose, a long litigation, and perhaps an appeal to the House of Lords at last, will be the result. Again, in February, 1848, he prepared to start on the Northern Circuit, being induced thereto by the desire, as he laughingly informs Mrs. Opie, ' to go nine times and earn a jacobus/ the dagger-money of old times presented to the judges at Newcastle, ' for each of his children/ This year [he adds], as last year, I am tempted by Rolfe's agreeable qualities to go with him ; and as I did so well last year, and as the bar were so civil as to ask me to come again, as having given them entire satisfaction, my vanity therefore was enlisted on the same side. Whether I shall ever venture on it again is very doubtful. In the winter of this year it fell to his turn, in concert with Mr. Justice Erie, to preside at the Liverpool and Chester Assizes. The disturbed state of the country, re- sulting from prevalent distress, as well as the inflammatory opinions which a year of revolutions had tended to dis- seminate, filled the criminal courts with charges, many of them of a very grave character. The following letter is written to Mrs. Opie from Liverpool, upon the conclusion of the assizes there : Dec. 10, 1848. As the Government have published my charge and the sen- tences at Chester, paying me the compliment of saying they wish to distribute them in the disturbed districts, as being likely to do good, I thought you would like to have a copy ; so I send it. We have just finished our heavy labours here. All the Chartists tried have been found guilty, except one, and he most properly acquitted. They all agree they have had a fair trial ; and to-day 106 Introductory Notice of the saw the remarkable sight of ten men, all convicted, and all severely punished, thanking the judge who tried them for his fairness and impartiality. I am a little vain of this triumph of the law. Don't, however, be shocked at my egotism. There are two poor men who rnust be left for execution both for murder. One exactly, in rather lower life, a case of Hacket, who killed Miss Eay, Basil Montagu's mother. The other for the Ashton policeman's murder quite clearly made out not done by his hand ; but as he piked the man through the thigh, and also fired a pistol, which missed his intended victim, I do not see how he can be considered in any different light than the man who fired the fatal shot. The jury have, however, recommended him to mercy on that ground. I do not know what the Govern- ment will say, for it will rest with them ; and I shall simply transmit the recommendation, not adding an opinion either way. I think if the real man was also found guilty, they would spare this man. But he is in America, and an example must be made, so I fear the result will be fatal, and can see my way to no other conclusion. You will be glad to hear that both here and at Manchester trade is steadily reviving, and all are in good hope and spirits, and say that the crisis is past, if Europe remains tolerably quiet. This will put an end to Chartism more effectually than any trials. Both together will for some time annihilate it the leaders all in gaol the people at work again. The following letter was written in reply by Mrs. Opie, a few days later : I was going to write to thee when thy welcome letter arrived ; I had already read all the proceedings ' before Baron Alderson,' and, as thou wilt suppose, sorrowfully found thou hadst been forced to condemn to death knowing thy aversion to perform that duty. I shall now read the charge at full length, and expect to admire it fully. I disliked for thee the task to which I found thou wast called, but am now very glad it was laid on thee, as I trust and believe it will work a benefit to the country, and to the increase, in rational minds, of thy well-earned popularity. Life of Baron Alder son. 107 I wish thou couldst have heard what I heard at Sir R. Har- vey's the day before yesterday. As may be supposed, the dreadful murder [the Stanfield Hall case] was talked of, and my neighbour, the mayor, soon began to express anxiety as to who would be the judge likely to try the prisoner Rush ; and the wish for thy services here next spring was warmly expressed. But when the gentlemen appealed to me, I ventured to say that I was glad to find thou wast not likely to try the case ; because I not only was perfectly aware what suffering was inflicted on thee whenever thou wast forced in duty to con- vict capitally, but I felt sure that the task of trying a culprit for murdering a man whom thou hadst known all thy life, and who was a frequent guest at thy father's table, would be to thee an undertaking of a very painful nature indeed. I was really sin- cere in what I said, but I did not expect the gentlemen to agree with me ; and so the matter dropped. But it was followed by many interesting particulars of Rush and the late transactions, which were new to me. I suppose the mayor was right in his law, and earnestly desire that he was so. He said the young wife had no marriage settlement, and having no marriage por- tion, therefore she would, maimed, and miserable, and penniless, have quitted her once happy home, but for this providential cir- cumstance, as I may call it. They have been enabled to ascer- tain that poor Jermy died thirty-two seconds before his son. Jermy was shot in the porch, and it took the murderer thirty- two seconds to go from the door through the hall into the drawing-room, and back into the hall, where he met the young man, and shot him dead almost instantly. But the younger Jermy survived long enough to succeed his father in the estate, and ensure his widow her dower. I hope this is correct. J tell thee what I heard. A strange thing took place to-day. Rush was carried to Stanfield to be confronted, at his own request, with the still scarcely surviving women. He hopes, no doubt, to bully them into losing the power to hurt his cause by their statements ; for a clever friend of mine, who saw him cross- examine policemen in a small committee the other day, says his legal powers are considerable. It was, I am told, a fearful thing to look on him when, most unexpectedly, he found the 108 Introductory Notice of the chief examiner was eliciting gradually from the victim of his profligacy the discovery of the forged papers. He started up, looked the demon he is, and used most frantic gestures, looking at her as if he would fell her to the earth ; but she told her tale, regardless of his fury. Enough of these horrors. * * * The pain which a case of capital conviction inflicted upon him, well known to the writer of the foregoing, from her intimate knowledge of his character, was one indica- tion among many of the sensitive tenderness by which his nature was distinguished. It is hardly too much to say that it cost him a painful effort, from the outset to the close of his judicial career, to check the tendency of an unusually indulgent and sympathizing temper ; and few things delighted him more than to be instrumental in obtaining a merciful consideration for circumstances which, allowed, with propriety, of such intervention. With a peculiar intensity were his feelings of compassion enlisted on behalf of the young. The guilt or distress of such went at once to his heart ; and again and again lias the same appeal roused him to unsparing personal efforts to relieve or reclaim. Of efforts so directed, in one instance out of many others, the following letter will speak, written by a gentleman through whom he had communi- cated with the unfortunate youth to whose case it relates: On my return from Paris yesterday I received your two letters. I am unahle to express my satisfaction at the results your merci- ful kindness has obtained for the unfortunate youth, G , and his distressed parents. I immediately went to the prison, and to my great pleasure found that Mrs. was with her son ; and to them I read your beautiful letters, containing what was to them most joyous tidings. The mother was naturally much affected, and I am sure it would have been a real pleasure to you, if you had witnessed the full expression of their gratitude for your interference in their behalf. Mrs. assures me that Life of Baron Alderson. 109 your wishes shall be in every way carried out, and it will be their greatest delight to let you know, from time to time, how the youth conducts himself. I have given him a copy of your last letter, and I feel sure he will ever remember your advice, and justify, by his future good conduct, all that has been done in his behalf. I am charged to express to your lordship the deep feelings of gratitude and respect entertained for you by this unfortunate family ; and I must also express my own thanks for the kind- ness and promptness with which you have responded to my application. The following are extracts taken from communications addressed to him tinder somewhat similar circum- stances : It is with great pleasure that I inform you that I have ob- tained permission of the committee of the Asylum to send to that establishment the young girl, Alice , convicted be- fore you at the last Assizes, and sentenced to two years' imprisonment ; on which occasion your lordship humanely inti- mated to me that, if I could place her in an asylum, you would endeavour to obtain an order for her removal. * * It is a very sad case. * * * * The governor of Pentonville will be at all times ready to admit you to see the prisoner. It will be conceived, too, that an appeal from one who avowed the misery arising from circumstances which were brought before him in his judicial capacity to be the only excuse for addressing him, did not fail to awaken his sympathy, as a letter of thoughtful advice, gratefully acknowledged by his unhappy correspondent, testified. In this case, too, it was the sudden clouding of youthful prospects which peculiarly touched him : I have read your letter [he says, in replying] with great feel- ing of respect and sorrow. The latter is entirely unmitigated by any feeling of blame towards yourself and those dear ones who 110 Introductory Notice of the are afflicted in. your affliction, without, as I believe, the smallest fault on your or their parts. Even your unhappy relative, blameable, as he no doubt was, may very likely, I hope I may find it so in your statement, have circumstances of mitigation to allege as to what he has done. * * * One reason why I desired to inflict the punishment of transportation was, I may tell you, that it might be literally inflicted. I concluded that his family would perhaps follow him into exile, and so ultimately rejoin him. In the colony much of mitigation, without damage to the example, might have been allowed ; and the future would have been open there. But it was not in the young, when only criminal or un- fortunate, that he felt an interest. There was at all times something in their temperament congenial to his own : something which rendered their society attractive to him, and endeared him in turn to them the power of throw- ing himself with all the zest and freshness of a contem- porary into the feelings and aspirations with which the opening of life is regarded. Their hopes and prospects, their struggles and successes, warmly elicited his sym- pathy. Perhaps this trait was most of all evinced towards young men of his own profession. Although he had never experienced at the outset of his own career a period of similar" discouragement, he did not sympathize the less keenly on that account with those who met with disap- pointment : again, no one more cordially rejoiced in their prosperity. To afford them countenance and encourage- ment, if no more material aid to receive them in his house, and exhibit towards them in private life a friendly bearing was not only the impulse of his nature, but with him a matter of conscience ; being, as he conceived, one of the implied conditions on which he occupied the position and received the salary of a judge. Many personal friend- ships, which took their rise from the adoption on his part of such a line of conduct, testified to the consistency with Life of Baron Alderson. \\\ which it was through life retained, and the happy results by which it was attended. It did not, however, require the incentive of any special interest to awaken sympathies which overflowed on every appeal. It is one thing to possess tender and sensitive feelings, and another to have a capacious heart ; access to which is not practically reserved for particular objects but lies as freely open to all who claim admittance on the plea of their common humanity. It was characteristic of the subject of this memoir that at no time of his life was he without special objects of a benevolent interest. Many grew up insensibly round his home ; but some were found wherever he went ; for he carried into every scene of life the same genial and comprehensive heart. Often the op- portunity to obey its promptings was brought across his path by chance and some spectacle of misery or suffer- ing of which he was an eye-witness an accident, perhaps, or some calamity, or sudden bereavement called those promptings into energy. Even to come to him with the story of such things was invariably sufficient to arouse his interest ; and his sympathy, and more than his sympathy, was readily accorded. And into every effort for the com- fort or relief of others he sought to infuse something in the doing which enhanced the intrinsic value of the deed something, if possible, of personal intervention by word or deed, which his own sensitive appreciation of kindness instinctively suggested, and which threw, as it were a grace over the charity. This 'large-heartedness' was in truth in keeping with the rest of his moral and intellectual nature, the key to which consists in the absence of anything petty or restricted. As the range of his sympathy was wide, the view which he took of a subject was broad and manly, and unbiassed by any narrowing influence. The same spirit of largeness 112 Introductory Notice of the regulated his judgment of persons. He judged of their motives and conduct, not by reference to any ideal standard of his own, but the aggregate results at which the expe- rience of a lifetime conversant with every side of human nature enabled him to arrive ; accepting as an accomplished fact the inevitable blending of good and evil ; and while he retained to the last the same fresh and hearty admira- tion of the former, capable of making due allowance for infirmities of mind or temper which particular circum- stances might conduce to generate. Mrs. Opie having expressed her warm approval of the contents of the Chester charge I am glad [he writes in answer, early in 1849, from the Court of Exchequer] that you think well of it, and the sentences. The only good thing in the charge is what I took (stole) from Lord Lovelace's pamphlet on the statistics of France my only merit being that I have applied it as an argument to the people to show how they suffer by disturbances in their physical comfort, much more than the rich in proportion. And this is to my mind very clearly made out ; and I believe it was this which disposed the Government to wish that it should be printed for distribution. ******* Yesterday the Guizots came to see us. He was very agree- able. They are going back to France in April. I hope they will wait till the present struggle is over. He thinks the Na- tional Assembly will now give way, and dissolve themselves ; and a new Chamber of Conservatives, almost of Royalists, will be returned ; and that if so, either Louis Napoleon or some Bourbon will be king. It would be odd to see Richard Crom- well the Second become king at last. Guizot speaks well of Changarnier, as a man of resolution and talents. I could see how sore he felt about Louis Philippe's want of resolution, by what he said. * * And now I think I have written enough. If my letter be very dull and incoherent, it is not unlike the argument of the learned counsel who has been and is speaking all the time. Life of Baron Alder son. 113 The following was written later in the same year : June 12, 1849. The gods have granted half thy prayer, my dear cousin. We are coming to our old quarters for the summer, where we hope to see you. You will have at Norwich Assizes, in lieu of me, Lord Chief Justice Wilde. I mentioned you to him, when he and Lady Wilde dined here the other day, and he promised you should sit by him on the Bench as you used to sit by me. My circuit (the Midland) will last about a week longer than the Norfolk, but I have as yet no troublesome cases to try. * * What ravages cholera seems making at Paris. There the upper as well as the lower classes seem to be affected. -How mercifully have we hitherto been spared in London. The wise people say that Paris is very unhealthy, badly watered, and worse sewered. I suppose this is the secondary cause of it. Guizot has declined for the present to return to France. He means to visit us at Lowestoft again this summer. Ditto Dr. Whewell, and other notables. So we shall be in good company. * * These agreeable anticipations were overclouded in the course of their fulfilment by one occurrence, the death of a valued friend, the Bishop of Norwich. During his lengthened visits to East Anglia, Baron Alderson had opportunities for observing and appreciating the good effected by Bishop Stanley throughout his diocese; and while he admired the vigour of his administration, there was something specially congenial to Mm in the simplicity and earnestness of his character. It was therefore with real grief that, in the early part of the autumn, he received the intelligence of his unexpected death, while on a visit in Scotland. A melancholy satisfaction it was to him to make one of the many mourners who followed the Bishop to his last resting place in Norwich Cathedral, amidst a remarkable expression of general sorrow and sympathy. I was pleased [he says, alluding, in a letter written some months later, to the simple and touching way in which Mdlle. I 114 Introductory Notice of the Jenny Lind had expressed her feeling at the Bishop's death] to see how much sorrow Jenny Lind showed for our dear friend at Norwich, and to notice her pretty attention in sending a chaplet of ivy as ' her tears,' to be laid on his grave. A pretty Swedish custom, and a pretty subject for a copy of verses. Meanwhile November, as usual, brought with it the customary return to London, and work. The following note breathes of the spirit of Christmas, being written in acknowledgment of a Norfolk turkey which Mrs. Opie like a good country cousin had dispatched to town : Christmas Day, 1849. MY DEAE COUSIN, Many thanks for a Norfolk turkey and sausages, which I am glad to say is this moment on the spit, and of which 1 dare say we shall give a good account at seven o'clock. The and are coming to eat it ; and A will assist in the division of the Ottoman empire in its roasted form. In return we all send you a lump of love as big as your tur- key, with the desire that you will take it all first to yourself, and afterwards distribute it (having been improved by your own in its passage) amongst your friends. Your ever affectionate E. H. A. The doubt expressed in a previous letter whether he would ever again take the Northern Circuit, was destined to prove unfounded, for in the spring of 1 850, as well as in the same season two years later, he was induced to undertake its labours. Whilst at York, on the former of these two occasions, he was rewarded by a most amusing day of sight-seeing, in a visit which he paid to Mr. J. Scott's training establishment for race- horses, near Malton. We saw [he writes to one of his daughters] the most exqui- site horses in such order ! Each with his groom boy attending him, rubbing him down, clothing, and feeding him, like a young Life of Baron Alderson. 115 nobleman with his tutor. Most of them appeared very gentle.' I was desired to feel how hard the rmiscles of their crests were, and the particular meritorious points of each were noted, together with names, pedigrees, &c. &c. I saw three which are to win, or to be near winning, the next Derby, and many others, whose names I am ashamed to say I have forgotten ; but which, but for that, would live in my admiring recollection. I was really much delighted with seeing so much equine beauty and blood. After this inspection, which, as there were fifty at least, took some time, we adjourned to breakfast, where I was introduced to Mr. Butler, the celebrated jockey, with whom I conversed on the secrets of sweating down to a riding weight, and was surprised to learn what blankets and fasting will do. Before Lent is over, I will perhaps illuminate your mind on these sublimer mysteries of the art. Our breakfast was not, I am sorry to say, an example of the rule. I presume the Pope of jockeys had on this day granted him a dispensation. * * After breakfast we started to see the inspected horses gallop on the wold, a most charming turf, elastic and soft, with a good deal of undulation, and commanding a most extensive prospect in one direction sixty miles of valley. When we got to the top, we took our station, and presently came by in cantering or galloping succession our fifty horses a most beautiful sight our host acting as nomenclator, called out the name of each as it passed in review. Then we went to another part ; and walked to a knoll of furze, and shortly after came by our friends again in full gallop, like a race, in a cluster often or twelve, then four or five, and so on a sort of succession of races. Mr. Butler did us the honour to get on one, and lead the race. What struck me much was the tenderness with which the horses are treated, and their consequential gentleness. After this we went to see the year- lings in a paddock one, a year old, cost 450^. Before leaving, our host showed us all the interior arrangements of the esta- blishment. The boys live like collegians, at a common table, and are locked up at night like schoolboys ; and a man sits up all night to watch, lest rogues should break in and poison the horses in training. This is the bad part of the thing. It is obvious that the establishment is in a state of continual siege I 2 116 Introductory Notice of the and fear of internal treachery. On the wold we saw in various points men lounging about. ' Who is that ?' ' Oh, that's Man- chester Bill, touting for somebody.' So these loungers were all watching the training, in connexion with betters at London, Liverpool, &c. Each of them writes daily to his employers, such a horse does well, such a horse is lame, such a horse coughs, and the like and then the rogues go and bet with people who don't know it, and so are sure to win. Indeed, our friends and entertainers seem to me to do so too, by certain avowals they made. I mean availing themselves of what they fairly knew, but as I think unfairly used. Such is jockey morality to me, similar to obtaining money by cheating but it is obvious all do it and it is called fair. This was not the first occasion upon which he expressed himself strongly against certain of the evils incident to the turf. In the memorable case of Wood v. Peel, better known as that of ' Running Rein' which was tried before him in the summer of 1844 he pointed out in forcible terms, from the bench, another of its bad eflects, the as- sociation of gentlemen with persons infinitely below them in station. The case turned, it will be remembered, on a question as to the identity of a horse, the winner of the Derby of that year, alleged by the defendant to be, not Running Rein, but another horse, known as the Gladiator colt, arid disqualified for competition by reason of age. Its production to the jury therefore was of the utmost im- portance, in order that an examination might be made of its mouth, and of one of its legs, which, in the Gladiator colt, was scarred in a particular manner. A judicial order had been issued for its inspection, but the horse had been suddenly spirited away, and compliance with the order by this means evaded. The evident desire on the part of the plaintiff to keep the horse out of sight was met by a determination no less marked on the part of the presiding judge to insist on its production. ' Produce the horse Life of Baron Alderson. 117 that is the answer to the whole question. Is it sufficient to hear the surgeon's deposition as to the appearance of a dead body, and shall the jury be told that they are not to see that body ? ' And again, at another stage of the trial, he observed that there was an ancient case in the books in which a boy who had found a jewel, took it to a diamond merchant to ascertain its worth. The merchant detained it, and an action being brought against him, the jury were directed, and very properly so, to presume, as against the merchant who did not produce the jewel, that it was of the greatest possible value. So here the non- production of this horse would surely warrant the jury in any presumption against Mr. Wood. On the morning of the second day of the trial, the horse being still non-apparent, the counsel for the plaintiff was under the necessity of stating that his client had become satisfied that some fraud had been practised with regard to the horse, and had determined to withdraw from the inquiry. Upon this abrupt conclusion of the case, Baron Alderson, in parting from the jury, expressed himself to the following effect : There, gentlemen, is an end of the case : but before we part, I must be allowed to say that it has produced great regret and disgust in my mind. It has disclosed a wretched fraud, and has shown noblemen and gentlemen associating and betting with men of low rank, and infinitely below them in society. In so vloiu, they have been themselves cheated, and made the dupes of the grossest fraud, as they may depend upon it will always be the case. The fatigues of this Spring Circuit of 1850 proved a little too much for him : the heavy work at Liverpool conducing to bring on a sharp attack of illness, by which he was laid up at Saudgate, in Kent, whither, on the con- clusion of the assizes, he had hastened to join his family. 118 Introductory Notice of the The experience thus unpleasantly obtained exercised a due influence on his choice for the ensuing year. I have taken the Midland, and rejected the Northern Circuit, [he writes to Mrs. Opie]. Last year the latter knocked me up, and laid me on the sick-list after my return from Liverpool. You need not, however, he at present in any immediate fear for me, as I am, thank God, very well for the second judge (in se- niority) on the bench. The ' Papal Aggression' of 1850, with its unfortunate result in the agitation which pervaded a portion of the public mind against a certain party in the English Church, did not fail to be observed by him with the painful inte- rest which such a subject possessed for one who in religious questions was essentially a lover of peace and moderation. Inclined on the one hand to support persons who were made the victims of sectarian clamour, and provoked, on the other, by the pertinacity with which' they drew upon themselves so large an amount of hostile at- tention, it was with feelings of a mingled nature that he viewed the contest. The opening extract from the fol- lowing letter serves to show upon which side his sympa- thies preponderated. The Bishop of London [he writes, his saddened tone he- speaking the earnestness of his feeling], appears to me to be in a scrape, in insisting on Mr. Bennett's resignation of St. Barnabas, Pimlico. This is to deprive a man for a little over- Rubrical and ceremonial absurdity who has spent his whole for- tune in building the church and schools from which he is turned out: whilst it not unfrequently happens that clergymen of actual profligacy are only for a short time suspended from duty. So much more dangerous is it to offend man's prejudices than God's laws. * * Meanwhile we hear talk of a new Prayer-book by Act of Parliament : and this when the Queen, in the Coronation Oath, swears that she will maintain the rights and privileges of the Church one of which clearly is Life of Baron Alder son. 119 that no alteration in discipline or doctrine shall he made without the consent of the Church in convocation, to be afterwards, no doubt, confirmed or rejected by Parliament, but clearly requiring the united act of both, and the previous act of the Church itself. The State has a veto on all changes, but cannot originate any. * * * These things are enough to make a thoughtful man sad. Principles appear to me becoming nothing, and expediency (how I hate the word !) everything. It would be a curious thing to go to sleep for a hundred years, and then wake up to see how things are. But I don't wish to stay the intermediate period, nor to remain long awake at the end of the period itself, unless, indeed, I should find the Millennium begun, and could enjoy it with those I love also. * I am glad you like your new Bishop (Hindes) . I thought him a good man, and a really liberal man, and think so still. He could not rest content without making a direct appeal to the Bishop in behalf of Mr. Bennett : I feel [he says, writing to him in the December of this year] that as to the other case you have been plagued unnecessarily and unwisely by Mr. Bennett. I do not in the least defend what he has done ; but there are times, and surely this is one, in which one's own private injuries, however galling, should, if possible, give way to higher considerations. It is certain, I think, that those members of the ultra-Evangelical party, from whom you, as well as I, do most entirely differ, will not be con- ciliated by anything you can do. They will fear you less, but will not love you more for yielding to them. Nevertheless, in this difficult and dangerous position of affairs, I would venture to ask if it may not be possible for you to reconsider the case on terms honourable to yourself, at the application of the parish- ioners, whose interests and wishes should be rather considered than the threats of newspapers, or even your own justifiable dis- pleasure. I hope you will excuse this note, which , as anxious as I am forthe peace and good orderof the Church, was desirous that I should write. He thinks (flattering me no doubt in this respect) that my sincere opinion may not be altogether without weight with you, 120 Introductory Notice of the No one more earnestly deplored those cases of defection which the Church of England unhappily sustained in the course of the same year. Thus he writes in anxious depre- cation of such a line of conduct : No man should leave the branch of the Church in which he has been placed merely because it is not so perfect as he wishes. It is his duty to God and his neighbour to do this. He who deserts will have to answer for the infidelity of those souls whose well-being his conduct has put in jeopardy, who, when they find that learned men and men of character cannot agree with, and deem it necessary to separate from, each other, will disbelieve all things. He will also have to answer for the great sin of schism, and delaying the ultimate and perfect unity of the whole by means of those successive purifications of each branch of Christ's Holy and Universal Church, which can best be accomplished by his remaining where God has placed him. I solemnly charge this on Romanists and their perverts in England, as they would have the same right to charge it on me, if I, being an Italian and a member of the Roman Church, were to become an Anglican at Rome, instead of a Reformer remaining in the Church of Rome, to purify it by my example and precepts. * To a friend, who admitted that he found it difficult to believe in the existence of any tenahle position between the full and unrestricted right of private judgment on the one hand, and the infallible authority of the Church of Rome on the other, he replied as follows : I will readily answer your questions to the best of my power. You ask, first, if individuals differ about the interpretation of Scripture on a point involving a cardinal doctrine or practice, who is to determine the right interpretation ? Secondly, you repeat the question applying it to two Churches. I answer thus first, as to the case of individuals who differ. But before I do this I must begin by defining the terms on which I am to answer. If you mean by ' determine ' the fixing the meaning so absolutely as to preclude all right of private judgment altogether, I answer, no one but the Universal Church Life of Baron Alderson. 121 of Christ in general council assembled. To that tribunal, as I believe, Christ has annexed the gift of perfect infallibility by his promise, ' Lo, I am with you always, even to the end.' My private belief is that there is no certainty that there ever was more than one such council, the one mentioned in the Acts of the Apostles. At any rate, however, the existence of any such real General Council does not extend very far down in the history of the Church ; and since the separation of the Eastern and Western Churches it cannot have existed. Absolute infallibility is therefore ' in abeyance,' as the lawyers call it, until Christ shall come to unite his divided (eheu !) Church once more. But if by ' determine ' you mean (as I think you really must mean) the fixing the meaning of the disputed passage, so as that a sincere and prudeut man ought to surrender his private opinion to the determining authority, I answer that I think he ought to do so to the authority of the elder (even if not general) councils of the Church, to the united opinion of various Churches, to the opinion of the Church of the country in which he lives, to that of learned members of his own Church. I have put them down according to my notion of their precedence and weight. If they unhappily differ, he must exercise a firm but humble judg- ment, and decide for himself; but of course between their con- flicting authorities, not something differing from both. I hold none of them to be infallible, except really General Councils of the Universal Church. If any Council claims to be that, I claim only to examine that pretension. If I think the claim esta- blished, I bow implicitly to its decree. As to all others, I claim to examine both the extent of their authority, and the accordance of their decree with Scripture. But if the authority be high, I ought much to distrust, and I should, I hope, practically distrust my own judgment altogether. As to individuals differing, there is this also further to be observed. The Church of the country in which they dwell has authority to pronounce her decision between them, to be obeyed under the penalty of exclusion from her communion. Secondly, the differences between independent Churches stand upon the same principles, and are to be settled in like manner. The appeal is to the opinion of the whole Church, to be collected from general practice and the voice of antiquity, 122 Introductory Notice of the but with the right of judgment, to be exercised by a wise and prudent and sincere Church, in like manner as by a wise and prudent and sincere man. I presume the Church of England doubts, as I do, whether it be clearly made out that any Council, save that presided over by St. James, ever was really a General Council of the whole Church, so as to be infallible. But I 'doubt not that she holds, as I do, that she is practically bound to the quod semper quod ubique quod ab omnibus of antiquity, and that the nearer any authority or any Council approaches to that, the more weight ought its opinion to receive. A Church erring may, by the independent action of any other Church, be excluded from communion with it. But no one branch of the Catholic Church can exclude by its command one Church from communion with any other branch of the Church Catholic, except its own. If there were a real General Council, such General Council might exclude the erring Church from all other communion, just as any national Church can exclude an erring individual from communion with all other members of its body. Thus, therefore, I answer your two questions ; and I hope I leave you in no mistake as to my views on the subject. To another friend, who expressed himself as grievously dissatisfied by the submission of questions of doctrine to the decision of a lay tribunal of the State, as he conceived to have been the case in the notorious case of Gorham v. the Bishop of Exeter, he writes thus -. I cannot persuade you, I find, to adopt a distinction, which to my understanding is quite clear, between a determination directly on doctrine, affirming, denying, or qualifying it, and a determi- nation of a cause which incidentally requires the examination and ascertainment of what a doctrine is, as expressed in a form of words which the Church must necessarily use, and which may be therefore ambiguous, or clearly expressed. The former is the province of the Church : the latter of a judi- cial tribunal. Suppose an estate were left to you on condition that a certain sermon lately delivered by you was correct in doctrine, according Life of Baron Alder son. 123 to the Church of England. Surely you would not say that the bench of bishops should put you in possession of the land : though their evidence and opinion would no doubt be good guides for a judge and jury. After all that is said, it must be admitted that laws must be in words, and those words must be construed, in order to determine an infringement of the law, or to give a privilege to a person who obeys it. That is the best tribunal which most correctly can construe the words. It is different with the tribunal which makes the laws. That is the best in which God's Holy Spirit assists, and has promised to assist the lawgiver. Moses, by inspiration from above, gave the law from Mount Sinai, but he was not the sole person to construe it when given. You see, therefore, that I differ from you only in thinking that there is no objection to the ecclesiastical tribunal deciding on the causes ; though convocation ought always to be ready to make, and in case of erroneous construction to declare for the future, the true construction to guide the tribunal. This seems to me to be the true theory. But do you think that purely ecclesiastical tribunals thrive by comparing cases of their decision with Gorham's ? None should at all events decide who are not acquainted with the principles of justice between man and man ; for justice is an art, believe me the art of adhering to general rules, instead of following the imaginary particular justice of each case, which, in ninety-nine cases out of a hundred, is to follow prejudice and inclination. Why will the clergy hunt after unattainable things when there is a plain course before them, and practical enough, if followed, the limited but rightful use of convocation, to be called together to determine important cases when required, but not to meet like a clerical debating society on all frivolous occasions. Such a point might be worth fighting for, and is not a hopeless fight, I believe. But for the Church to be convulsed because the Judicial Committee may have made a mistake about Mr. Gorham, seems to me very unwise. * * You suppose the case of a clergyman denying or impugning our Lord's divinity, and ask whether, it being a question of doctrine in the Bishop's Court, it ceases to be one in the Privy Council ? Of course it does not ; but is it clear that you have not begun with a petitio principii? Is it a question of 124 Introductory Notice of the doctrine necessarily in the Bishop's Court ? The question there is, whether A. B. is to be punished by deprivation or otherwise for heresy ? Has he committed it ? What did he say ? In what words ? Are they to be understood literally ? Were they qualified by the context ? &c. &c. No question of doctrine is directly here ; but I will not, of course, doubt that here inci- dentally doctrine must be appealed to. But how ? In a case of crime you must show me the law a written one in what words framed; for a judge construes, not makes, the law. It is not what is the true doctrine, but in what form of words has the Church embodied it ? That is the transgression, to disobey that law. The Church which made the law declared what the doctrine was. If insufficiently, let her declare it more clearly. So it has been always. The Apostles' Creed, explained in more stringent words by the Nicene, and again by the Athanasian. But surely you would not have punished a man who had infringed the implicit meaning of the first, but had adopted the explana- tion of the second, when given. Nor would you have expected a judge, before the Athanasian Creed, to have punished a man for infringing it, if he obeyed it after its promulgation. Nor would it have been right for a judge, before a council of the Church had spoken, to have construed ambiguous words ac- cording as he himself was Arian or Athanasian, but simply to have declined to act at all against the accused, if the case were not clear. I cannot conceive what there is in all this which requires the decision of an ecclesiastic rather than a layman. There is much that requires skill and knowledge. The eccle- siastic may, for aught that I know> be the best. If he be, he should be appointed to decide ; but you will, I hope, forgive me for thinking that it is childish to say that Sir H. J. Fust is jit in Doctors' Commons, where he is appointed by the archbishop, but unfit if he sits in the Privy Council, which he often does. The same man, sitting on the same question, but in a different place ! I end as I begun. Had you simply insisted on the clear de- fect of a judicial tribunal, unaccompanied by a legislature to correct its decisions in future, I should not have a word against it. * * * * * Life of Baron Alderson. 125 One more letter, out of the many which exhibit him, about this period, in the light of a counsellor of anxious minds, may be inserted, before passing on to other matter. It will itself sufficiently explain the object with which it was written. MY DEAE FRIEND, You ask me what is the interpretation of the obliga- tion imposed on the clergy by the 36th Canon, and the Oath of Supremacy. Your question relates only to the Queen's acting judicially in heresy, and matters purely spiritual. I answer thus : The 36th Canon declares that the King's Majesty is, under God, the only supreme governor of this realm, and of all other his Highness's dominions and countries, as well in all spiritual and ecclesiastical things and causes as temporal. This is the first part. The second part of the Canon proceeds in terms to deny any foreign jurisdiction of prince or prelate. The Oath of Supremacy first denies that princes excommuni- cate may be deposed or murdered by their subjects I don't suppose you doubt about that and proceeds like the Canon to deny all foreign jurisdiction. You say you hold (I quote your own very words) that the final judicial sentence in interpretation of doctrinal definitions, and in applying discipline purely spiritual, is inalienably, by the law of Christ, in the Church alone. I don't see how that at all affects the question as to the putting to death princes excommunicate, or deprived by the Pope. Nor can I perceive that the final de- cision of the Church alone must, in England, be pronounced by a foreign jurisdiction. I shall therefore not discuss those mat- ters. But the first part of the 36th Canon is very well worthy of being considered, and, in my judgment, it is susceptible of a clear and simple explanation. It states that the King's Majesty is supreme governor in all spiritual and ecclesiastical things and causes, as lie is in temporal things arid causes. Now, liow is he supreme governor in temporal matters ? Our question, it is to be observed, relates to his supremacy in judicial 126 Introductory Notice of the proceedings alone. He is so, very clearly, by his judicial tribu- nals alone, established either by common law, the universal and immemorial custom of the realm, and therefore implying an uni- versal consent of the nation, or by statute law, which implies an actual consent of the nation, given through its representatives in Parliament. The King, personally, as supreme governor in temporal matters, has no jurisdiction whatever in judicial pro- ceedings. He judges by his tribunals they are established by the law of the land. So also does the Canon call him supreme governor in matters spiritual. In those also he is to judge through his tribunals. And these are established either by ancient custom, the common law of the Church which suppose an original authority canoni- cally given by the Church or established in more modern times by the Crown, with the assent of convocation, its ecclesiastical parliament. The aid of the civil parliament is added to make these regulations bind the laity, and to enable them to be en- forced by the civil power. But they bind the clergy by their inherent power over their consciences, till changed by convoca- tion itself. In this only way is the King supreme governor in matters spiritual, when he acts, or rather is supposed to act, judicially. In truth, it is the Church, speaking through her tribunal, which really so acts. And she does so from necessity. It would be absurd to refer each individual case to convocation, or a provincial synod. The King, as supreme governor, carries into effect for her the judgments pronounced by her tribunals. This is all that you are bound, as I believe, in your conscience, to hold. You must not, so long as the canon and oath remain unchanged, hold that you acknowledge any foreign jurisdiction (save that of the Universal Church in General Council assembled) as having any authority in matters spiritual here. You must not hold that kings excommunicate by the Pope may be murdered lawfully by their subjects ; and you must admit that the King acting judicially through his properly con- stituted ecclesiastical tribunals is to be conscientiously obeyed, as the supreme governor, in that sense, of the Church. I cannot see how this in good sense differs so as to be contra- Life of Baron Alderson. 127 dictory from what you say you hold. It seems to me that hoth opinions may well stand together, and that an honest and con- scientious man may safely hold both. If I have rightly understood what you do hold, this is my opinion. Bat your expressions are rather vague. In generalibus latet error. Half the disputes of the world arise from imperfect definitions. May God grant that this may tend to satisfy your scruples. * # * * Before leaving town for the Summer Circuit of this year the duty devolved upon him of presiding at the July Ses- sions of the Old Bailey, where the case of Pate, the man who struck the Queen on the forehead as she entered her carriage, came hefore him for trial. The plea of mad- ness being set up for the defence, Baron Alderson took occasion, in summing up to the jury, to make a careful explanation of the law upon that point : In the first place they must clearly understand that it was not because a man was insane that he was unpunishable : and he must say that upon this point there was generally a very grievous delusion in the minds of medical men. The only in- sanity which excused a man for his acts was that species of delusion which conduced to, and drove a man to commit the act alleged against him. If for instance a man, being under the delusion that another man would kill him, killed that man, as he supposed for his own protection, he would be unpunishable for such an act ; because it would appear that the act was done under the delusion that he could not protect himself in any other way, and there the particular description of insanity conduced to the offence. But on the other hand, if a man had the delusion that his head was made of glass, that was no reason why he should kill another man, and that was a wrong act, and he would be properly subjected to punishment for that act. These were the principles which ought to govern the decision of juries in such cases. They ought to have proof of a formed disease of mind, a disease existing before the act was committed, and which made the person accused incapable of knowing at the time he did 128 Introductory Notice of the the act that it was a wrong act for him to do. This was the rule by which he should direct them to be governed. Did this unfortunate gentleman know that it was wrong to strike the Queen on the forehead ? There was no doubt that he was very eccentric in his conduct, but did that eccentricity disable him from judging whether it was right or wrong to strike the Queen ? Was eccentricity to excuse a man from any crime he might afterwards commit? The prisoner was proved to have been perfectly well aware of what he had done immediately after- wards, and in the interview which he had since had with one of the medical gentlemen he admitted that he knew perfectly well what he had done, and ascribed his conduct to some mo- mentary uncontrollable impulse. The law did not acknowledge such an impulse, if the person was aware that it was a wrong act he was about to commit, and he was answerable for the con- sequences. A man might say that he picked a pocket from an uncontrollable impulse : and in that case the law would have an uncontrollable impulse to punish him for it. It is possible, that in the opening of these remarks he had in mind the medical testimony tendered upon another trial at which he assisted that of Oxford, charged with shooting at the Queen and Prince Albert, in the summer of 1841 insupport of the same plea; by which an at- tempt was made to lay down the doctrine that the mere enormity of a crime, or circumstances of an unusual and desperate character, were to secure a prisoner's acquittal by being taken to establish his insanity. Not only was this position expressly repudiated by Lord Denman, in summing up, but in the course of the trial it was not allowed to pass without lively interpellation on the part of Baron Alderson, who after closely questioning the chief medical witness as to the circumstances on which his opinion, as a physician, of the prisoner's insanity was grounded, and receiving in answer a mere array of the details of the attempt, forcibly observed that while symp- Life of Baron Alderson. 129 toms of insanity were medical questions, all the circum- stances mentioned involved merely legal questions, which a doctor was not more able to decide than any other man. The later trial unlike the former ended in a verdict of guilty, and Pate was sentenced to transportation for seven years a sentence the substantial severity of which must have been overlooked by those who criticised it for the omission of the floggings mentioned in the statute under which the prisoner was indicted, and which were dispensed with in consideration for the feelings of his family. The following letter was written in answer to an invita- tion requesting him to attend an educational soiree given in the year 1851, that of the Great Exhibition, and serves to indicate the views he entertained on the subject of national education : I am much flattered by your wish to see me at your con- versazione, though I regret I cannot come to it. * * * With reference to the general subject of education, I cannot say I like compromises. On such points I grieve over our unhappy divisions, and not the least that they are the real obstacle to education. But I accept'them as a fait accompli, and try to make the best of the case. I hope I have a true catholic toleration for all who conscientiously differ from me, knowing how little right I, or indeed any man has to set up for being in- fallible. But I must act after all (and I assure you I sincerely wish others to do so too) according to my own convictions. These lead me to educate others, as I believe myself to be bound to do, in the vital truths which I myself accept, and in no others. Everybody will perhaps say the same, but they will add, ' Give secular instruction in common.' I believe that to be impossible, because all learning and all science may be so taught, and in fact must be so taught, as to include in it some perversion or true teaching of religion. An unbeliever teaching a boy arithmetic may insinuate that the doctrine of the Trinity in unity is not K 130 Introductory Notice of the true. And geology may be taught so as to throw doubts on the Bible. It is unnecessary to multiply examples. I look a great deal more to the opinions of the person teaching than to the things proposed to be taught ; for education is the bringing up a child as a responsible being to God and to society, and in most cases the boy follows the master, as I believe, both for good and for evil. I prefer therefore to continue as I am, doing in my own private sphere the little good I can. In December, 1851, the startling intelligence of the coup d'etat at Paris put a summary end to a proposed excursion to that city during the Christmas holidays. I was going there [he writes to Mrs. Opie], but of course do not dream of it now. They seem in a bad way. A nation so unfit for freedom if that be freedom which requires those who love it to \>? first wise and good does not exist. The Celts seem to me to be ' a bad lot.' I suppose it will end in Louis Napo- leon's becoming dictator, and then (not unlikely), being shot by an assassin, and the game will begin over again then. The fear is, that the Praetorian guards will make him go to war for their own profit. It is a fearful crisis, I think : and the best that can happen will be for him to be made King or Emperor, and' hold his ground in spite of conscience, oaths, and faith which he pledged to the Kepublic. At this time of the hurricane, our Ministry are to bring in a new Bill of Reform. Wise people ! This shows how silly it was to pledge themselves months ago, when no man can tell what may happen from day to day. We (the Judges) are all trying to work out the not very wise bill enabling plaintiffs and defendants to swear for themselves. A great deal of perjury is the result, but I do not think much will be punished. Juries are not a proper tribunal for such mat- ters, and therefore the experience of its working well, if it did so, of which I am not sure, in the County Courts, was fallacious. There, in ninety-nine cases out of one hundred, the Judge de- cides. AVe are to work in all cases by a jury. Now, unedu- cated minds seldom like to doubt ; and so a jury, if the plaintiff Life of Baron Alderson. 131 swears black, and the defendant white, will always find a verdict in favour of the one or the other, when in truth they ought to find, in a multitude of such cases, that they do not know which to believe. This would be the real truth, and the philosophical view of these cases. And in such finding, it would be easy to determine the cause by saying that the party having the affirma- tive has failed to prove it. I suppose that in time we shall work it into their heads, but I think all the world is not awake as yet to this conclusion. In the spring of 1852, for the last time, he chose his favourite circuit, the -Nor them; and on this occasion the choice entailed no untoward consequences, as it had two years before, to his health, from the heaviness of the work. In the following letter to Mrs. Opie, he relates the first appearance in the criminal calendars of the since notorious garotte : We have had a new and most prevalent crime of robbery, committed after the way of the Thugs in India, which infesta the great manufacturing towns of Yorkshire and Lancashire. Three men, generally with a female, who acts as jackal, lie in wait for travellers after dark. The woman accosts the unwary victim suddenly out spring the men, two seize his arms, one his throat, so as to strangle him, that he may not call out for help, and then the other two rob him, and all run away, gene- rally leaving the victim insensible, and often all but dead. If I have tried one, I have tried twenty such cases, and my brother judge as many at York. We have invariably transported them all men and women too and I mean to apply to the Govern- ment to send them off at once across the seas, as a terrible example, to try and prevent the crime spreading. We are going to dine and sleep at our Roman Catholic sheriff's house. We have had no difficulty whatever with him on the question of chaplain. He appointed, at my desire, when at Lancaster, a clergyman to preach before us, and was quite relieved when I told him that he had no right to appoint a K 2 1 32 Introductory Notice of the chaplain, properly so called, but only a preacher before the judges. Now such a preacher must be of the Established Church. It is not correct to say that the chaplain is the chaplain of the judges, who are of the Church of England ; for the judges may be Eomanists, or Dissenters, or Quakers, or Jews, and so may the sheriffs ; but if it be true, as it is, that the duty of the sheriff is merely to select out of the Established clergy a person to preach before the judges, when they go to the Established Church, then the religion of the judge or sheriff has nothing to do with it. Chaplains, legally so called, can only be appointed by persons named as having a right to appoint in an Act of Parliament. Bishops, peers, privy-counsellors, judges, &c., are named, but sheriffs are not ; therefore they cannot appoint a chaplain. No doubt, in common parlance, any one is called so who says grace or reads prayers in a private house : and such, a chaplain a sheriff or any one else may have ; and in old times, no doubt, Parson Supple was sheriff's chaplain to Squire Western, in this sense, but in no other. He had, in the Easter Term of this year, to deliver judgment in the memorable case of Miller v. Salomons, in which he concurred with the majority of the court in thinking that the words, ' on the true faith of a Christian/ were a substantive part of the oath of abjuration, and not merely part of the ceremony for administering the oath. His theory as to the introduction of these words in the 'oath is curious : They are not found [he says, in the course of his judgment], in that prescribed in the reign of Elizabeth, but are first found in 3 Jas. I., c. 4, which was passed upon the discovery of what is called the Gunpowder Plot. It is a curious fact only lately brought to light by the publication of a MS. from the Bodleian. Library at Oxford by Mr. Jardine that one of the main proofs used by Lord Coke, when he laid that case before the jury, was the production of a little book found in the chamber of Francis Tresham, one of the conspirators mentioned in the Act, called ' A Treatise on Equivocation.' This treatise, corrected in the Life of Baron Alderson. 133 handwriting of the Jesuit Garnet, and having the imprimatur of Blackwell, the then Arch-priest of England, discusses the question how far a person called upon, as he thinks unjustly, to make a declaration or promise, or to depose or swear to a fact within his personal knowledge, may lawfully equivocate, by using ambiguous words, or reserving mentally a sense of the words used different from that outwardly expressed by him, without in- curring the sin of lying or the guilt of perjury. The question is there resolved in the affirmative, that he may lawfully do this ; and among other propositions, it is affirmed that even if he be required by the form of the oath tendered in terms to swear ' without equivocation or mental reservation,' he may still equivo- cate or mentally reserve, without danger to his soul. But in that treatise there is one exception to all this. No person is allowed to equivocate or mentally reserve, without danger, if he does so, of incurring mortal sin, where his doing so brings appa- rently his true faith towards God into doubt or dispute with others. Now this treatise being before the Government of King James the First, and in the hands of his Attorney- General, and used at the trial of the Gunpowder Plot, we find in the same year, 1605, that in a statute enacted mainly with reference to the same plot, these words, ' upon the true faith of a Christian,' are for the first time added to the oath of obedience then framed, and for the obvious purpose, as I think, of preventing effectually all such equivocation, by conclusively fixing a sense to that oath which by no evasion or mental equivocation should be got rid of, without, even in the opinion of the Jesuit doctors themselves, incurring the penalty of mortal sin. After going on to point out that although the fact referred to was a curious confirmation of the view which he took of the importance of the words, it was by no means necessary to his opinion, which was in the main based on the uniformly express and definite language used by the legislature with reference to the oath, he concluded with the following observations, often quoted in the course of the debates on the admission of the Jews to Par- liament : 134 Introductory Notice of the I do most seriously regret that I am obliged, as a mere expounder of the law, to come to this conclusion, for I do not believe that the case of the Jews was at all thought of by the legislature when they framed these provisions. I think that it would be more worthy of this country to exclude the Jews from these privileges (if they are to be excluded at all, as to which I say nothing) by some direct enactment, and not merely by the casual operation of a clause intended apparently in its object and origin to apply to a very different class of the subjects of England. I regret also that the consequences are so serious, involving disabilities of the most fearful kind in addition to the penalty sought to be recovered by this action, and in fact making Mr. Salomons for the future almost an outlaw. It is to be hoped that some remedy will be provided for these consequences at least by the legislature. My duty is, however, plain. It is to expound, and not to make the law to decide on it as I find it, not as I may wish it to be. The progress of law reforms introduced during the session of 1852 by the Government of Lord Derby was watched with interest and cordial satisfaction : After all [he says, writing to Mrs. Opie on this head] this session of Parliament, and this dubious state of government, will carry out some of the best measures ever brought before them. The Amendment of Chancery and Common Law will pass, I am glad to say, by common consent, with debate as to details. Many of these measures are spoilt by pragmatical men in the House of Commons making amendments which do not harmonize with the rest of the Act. The only sound mode of doing these things is to debate the general principle, and to leave the details to the professional men. This result this year is to be attributed to the little time and the anxiety to dissolve by which both sides are now animated. The New Zealand Bill also is a great step for colonial self- government, probably wanting future amendment, but still a good step in advance on a good road. Weak governments are not altogether, though in some measure, evils. These are their advantages. Their fault is want of power of resistance when Life of Baron Alderson. 135 the real improvements are exhausted, and men still crave more alterations, as they almost always do. * * * We seem (I rejoice to say) to have done with protection for your and my time. Possibly it may turn up again in my children's time. You and I saw its beginning in the Corn Law Riots of 1815, when Lord Ripon, then Mr. Robinson, brought it in for Mr. Coke and the late Sir Henry Parnell, to improve agriculture, and they declared that under 8cs. a quarter corn could not be grown. Now we do grow it at 45*'. Such was the wisdom of our bucolic ancestors. I believe most of my agricultural friends believe these Corn Laws to have come in with Magna Charta ; whereas I saw their birth, and shall be a merry mourner at their burial. They always stare, after their manner, when I tell them so. As soon as the labours of the Midland Circuit left him free to the enjoyment of the Long Vacation, for which he entertained, as he expressed it, ' the most religious reve- rence/ he hastened to exchange the toils of office for the breezes of the Channel. As has been mentioned before, of all modes of recreation, none afforded him so much en- joyment as that of yachting ; and in the course of this sum- mer (1852) he extended his cruises along the south and south-west coast, as well as the north coast of France, ending by establishing himself, for the last time, in his old quarters at Lowestoft for the autumn. He was attracted in that direction by the recurrence of an occasion at which he had for many years made a point of being present, 'the Norwich Musical Festival/ To no vacation hours of this or the following year, when he fixed himself for yachting purposes in the Isle of Wight, did he recur with more unfeigned satisfaction than to the many happy ones spent on the waters of Solent or Torbay. The year 1853 was destined in its passage to inflict upon him a serious measure of family loss. Commencing with deep anxiety at the malady of his only surviving sis- 136 Introductory Notice of the ter, it set in sorrow for its fatal termination. And as one who clung the more fondly, as age advanced, to the ties of kindred and the associations of early life, it was with a feeling of deepening sadness that he learnt, almost at the same time, that she with whom he had for so many years maintained a constant interchange of thoughts and ideas, the gifted correspondent of so many of the preceding let- ters, had finally succumbed to the infirmities of ad- vancing but honoured years.* An occurrence of this autumn the suspension and dis- missal of Mr. Maurice from his Professorship at King's Col- lege, on grounds of heterodoxy on a certain point, while it awakened at the time his warm interest, from his ac- quaintance with, and respect for, the individual impugned, merits notice as an incident which serves to place his con- duct and views, with reference to a certain class of subjects, in its true light. Without pronouncing one way or the other on the particular controversy in question, he was led to-be of opinion that, at all events, the offending Pro- fessor had been harshly judged ; and once satisfied of this, as a systematic labourer for peace, and, above all, for toleration on religious matters, he entered into the discussion so far as to endeavour, by communication with the friends of Mr. Maurice as well as the members of the Council, to bring about an amicable arrangement. Efforte so directed by him and others were, unhappily, unattended with success. But the interest evinced on this occasion, and acknowledged by one of the Professor's most intimate friends, in a letter from which an extract is given a little further on, marks not only how readily his sympathies were enlisted in behalf of any one whom he conceived to have been treated with a measure of injus- tice, but also how averse, on questions from their very * Mrs. Opie, Life of Baron Alderson. 137 nature open, the bent of his mind was to what is stigma- tized, in the same letter., as the mischievous tendency to over-dogmatize in theology. Though urging what appeared to him unsatisfactory in the treatment of the question by Maurice, there was, doubtless, much in the following in the spirit of which he concurred. Indeed, the remark on what constitutes the really valuable quality in a teacher, resembles an ex- pression of his own in a letter on the subject of educa- tion, which has been already inserted in these pages. I am very thankful [says the writer] for your letter, and for the interest which you, like Bunsen, take in this troublous matter. As to your remark that Maurice's destructive power is greater than his constructive, we must bear in mind that he has learnt from the whole history of the Church and of theology, that one of the most mischievous tendencies in theology as well as in philosophy has ever been the fondness for systematizing and dogmatizing. Hence his method has been like that of Socrates, who aimed at the like object of delivering the human mind from the bondage of immature propositions, and who has been in like manner charged with leaving his pupils in want of defi- nite systematic knowledge. Herein his method, like the Ba- conian, was the reverse of that of Aristotle and the Scholastic, and tended towards the emancipation, instead of the enslaving, of thought and truth. This, tco, seems to me to be the distinc- tive principle of our Church as manifested in her Articles as compared with the Tridentine Canons on the one side, and the Westminster Confession on the other. She was providentially led to take this course of practical wisdom, and has thus become a subject of reproach to the servile cravers after some peremptory authority. But the truly precious quality in a teacher seems to me, not so much the faculty of imparting a large mass of infor- mation ready cut and dried, as that of inspiring a love of truth with reference to his peculiar department, and of inculcating the right principles and method of seeking after it. This will produce living knowledge instead of dead : and thus I have been told on good authority that in examinations for orders, the can- 138 Introductory Notice of the dictates from King's College have been noticeable for the greater largeness of their theological views, and by the higher earnest- ness with which they look forward to their ministerial office. In this then, as in every other theological controversy in which circumstances led him to take an interest,, the mo- tive, to those who had the closest opportunity of judging of it, would seem to have been, not a systematic support of any particular party or views, but some strong personal feeling. It might be it often was one of earnest friend- ship which aroused him ' to think out/ so to say, a subject, and endeavour by his counsel to counteract the doubts and anxieties of some less vigorous mind. To a feeling of this kind may be attributed the Letter of a Layman, written during the heat of the Gorham Controversy, the first of three to which the same unhappy discussion gave rise. The note prefixed to it ' The following was, in 1 850, addressed to a friend then about to leave the Church of England, and is now printed at the suggestion of some persons who think that it may perhaps be useful to others similarly situated' sufficiently indicates its origin and purport : and more than one expression of thankfulness from persons to whom its pages were of service, in the removal of previously en- tertained doubts, was a real satisfaction and reward for trouble unhappily, in the first instance, expended in vain. The testimony of so learned and distinguished a man as the late Archdeacon Hare to the value of the Letter to the Bishop of Exeter, deserves to be recorded : It is [he says, in a note to a Charge delivered to his clergy in 1851,] of itself enough to prove of what inestimable impor- tance it is that an Ecclesiastical Court of Appeal should con- tain a large admixture of legal minds. In opposition to all the persons who, with the Bishop of Exeter at their head, raised such an outcry about the evils brought on our Church by this judg- ment, the author shows with the utmost clearness in a dozen Life of Baron Alder son. 139 pages, first, that the decision, standing alone, scarcely affects the law of the Church, inasmuch as it might be overruled to-mor- row by another decision of the same court ; and, secondly, that the decision itself, whatever may be its authority, goes no further than to cover that form of opinion which the court has given as the summary of Mr. Gorham's doctrine, which summary contains nothing incompatible with the teaching of the Church. To the argument, as here stated, I see not how any intelligent person can refuse his assent. And in a letter addressed to the author himself he begs to express his gratitiide for a statement so excellently fitted to set people right in a matter on which such num- bers were running wild adding his belief that this had been its effect in many instances. Or else as in the case of Mr. Maurice, and others of similar notoriety it was what with him really amounted to a personal matter, the sense of an injustice having been committed, and the anxiety to uphold the object of harsh or unfair treatment, which induced him to volunteer his support, irrespective, to a great degree, of the views or practices of the person assailed. Such a course, by a not unnatural confusion, often lays a man open to the supposi- tion of an active approval of the particular tenets of a party or individual whom another motive may have thus led him to support, and the more so, that to a certain extent their views may assimilate. But this, one in whose bosom the love of justice was so deeply rooted never paused to consider. It was a physical impossibility for him to sit down and calmly watch an act of tyranny or wrong-doing : it would intrude upon his thoughts, and fret and vex him to an extent often injurious to his bodily health. But for all that, there might be, and often was, much in the opinions or conduct of those in whose behalf he would strenuously interfere, in which he had no in- 140 Introductory Notice of the tention whatever of thereby expressing his own agreement, nay, would often most earnestly deprecate. His own impulse, indeed, was to concern himself far more with the practical than the doctrinal side of Christianity; and for his religious views, they are rather to be gathered from the reiterated expression of his own inmost sympathies from the tenor of his secret meditations from the out- line assumed by the great truths of religion in his private thoughts than from the part he may have been led by circumstances to take in any theological controversy. These are indeed the true criteria ; and these, while they indicate unmistakeably an earnest and reverent holding of all vital points of Christian doctrine, are characterized no less explicitly by a spirit of largeness and toleration, and, whatever his own convictions, the habit of respect for the opinions of those who conscientiously differed from himself. How little, on the one hand, in ac- cordance with his own sense of propriety were the ritual excesses in which a small section of English Churchmen has seen fit to indulge, and on the other, how abhorrent to his nature was the spirit of bigotry and prejudice which could resolutely close its eyes to any good which it did not itself dictate, may be gathered from the following extract from a letter written a few years before his death, upon the occasion of Miss Sellon and her sisterhood at Devonport becoming the subject of inquiry, as they had been of a sharp local per- secution : I agree with your admiration of these women up to a certain extent ; but think they did not sufficiently attend to St. Paul's advice ' Giving no offence in anything, that the ministry be not blamed.' By what I call follies, and what they themselves think unessentials, they have raised this storm. Nevertheless, I do detest and abhor with all my might and main the abomi- nable persecution. Why not look at the good done, and for the Life of Baron Alderson. 141 good's sake pardon what even bigotry, I should believe, can hardly put higher than pardonable absurdities ? Let us, how- ever, take, if we can find it, the good in all (even in these people of whom I have been speaking), and show our catholicity by our love of all that is good everywhere. This earnest desire for upright and impartial dealing between man and man, this strong natural repugnance to anything which tended to exclude any individual, whatever his position, from the consideration to which he was by law and right entitled a quality so excellently fitting him for the post which he occupied becomes, perhaps, a more distinctive feature of character when taken in connexion with the ardent love of truth by which he was animated. We not unfrequently see those around whose nice appre- ciation of justice with regard to persons awakens our admiration, devoid apparently of any great anxiety in behalf of, or value for truth, as truth. To such persons the subject of this memoir presented a marked contrast. Not only did he recoil sensitively from injustice in every form, but in the exercise of his reasoning faculties it was vital to him to penetrate to the truth. Probably the cir- cumstances of his life and judicial employment had an influence on his character in this respect, and so long a period had not been spent in sifting doubtful evidence, and feeling after the real fact in the midst of error, without adding to the strength of an instinct deeply implanted at the outset in his nature. But in all relations of life, and in every branch of inquiry most of all, the highest it was his conscientious endeavour to arrive at the truth. It was impossible to be in his society and remain insensible to this. Especially- it pervaded his conversation, when he would gradually glide from the surface of things to topics more congenial to his own earnest spirit, and proceed to bring to bear upon that selected all his 142 Introductory Notice of the vigorous powers of understanding, turning the question this side and that, viewing and reviewing it from its diffe- rent aspects, searching and probing, and breaking up the doubts or difficulties with which it was environed, until he had succeeded in extracting, as it were, the kernel of truth, upon which he had seemed from the outset to have had the eye of his mind fixed, with a steady intensity, which no intermediate mass of confusing matter availed to divert from its aim. But when the proper limit of human reason was reached, further inquiry was at once cheerfully abandoned. ' In all things (to quote his own words) within our powers of mind, we have reason to guide us, and we ought to follow it; and even with respect to revelation we ought to use reason to ascertain whether it be really a revelation from God but not any further/ The following extracts are derived partly from letters, and partly from miscellaneous jottings made at various times, as each subject happened to strike him, purely for his own satisfaction. Most of them bear the date of Sunday, and owe their origin, in some sense, to that cir- cumstance. It often happened that some incident of the day, a passage or expression in the service, or a remark falling from the preacher, awakened in his mind a train of thought, which either found utterance in conversation or a letter, or was merely recorded in brief on paper. With thus much of explanation as to their fragmentary form, the present is as suitable an opportunity as any for their introduction : Sunday. As I was sitting in church to-day, and hearing the first lesson, it struck me that a good sermon might be preached on the text, 'Are not Abana and Pharpar, rivers of Damascus, better than all the waters of Israel ? May I not wash in them and be clean ?' I think this speech of Naaman's a capital peg to hang a discourse on Mail's folly in thinking to compare his own mode Life of Baron Alder son. 143 of salvation with that appointed for him by God. We are con- tinually saying, ' Are not good works, &c. (our Abana and Pharpar) a better ground for God's mercy than the blood of Christ (the Jordan in which we are ordered to wash) ?' Might not this be properly set forth, and amplified ? * * Sunday. I was thinking just now of the text, ' If ye be risen with Christ.' This passage struck me forcibly as showing what St. Paul calls and thinks spiritual life alone to be really life. All mere physical life he calls death. Christ holds our life for us (if we have it) in the bosom of God. Arid thus we are united, the finite with the infinite the creature with the Creator man with God. The link is entirely spiritual, and must be communi- cated to us ; we cannot get it ourselves. Whether we get it in baptism, or by what some call regeneration, it must be in the nature of things God's mere gift and only doing. I think we have good ground for thinking we get it by baptism ; but what nonsense people talk who give reasons why we cannot so get it, when, after all, our getting it at all is necessarily a miracle. Why explain or argue about a miracle ? It is only a question, what is written how readest thou in these cases ? Am I not right in this ? and ought not the conclusion to be, ' Let us ex- amine humbly what is written, and believe implicitly what is clearly revealed. But mind, I confine this to what is beyond human reason, which includes all man's relations with God. In all things within our powers of mind God has given us reason to guide us, and we ought to follow it. And even with respect to revelation, we ought to use reason to ascertain whether it be really a revelation from God ; but not any further. * * Sunday. How I grieve over a man who like sacrifices his own usefulness, by praising, and going out of the way to praise, the Papacy. I don't want him to abuse it. I should disapprove of that also, for it would, to the extent to which many carry it, be unjust, and I do cordially hate injustice. But why not set him- self to raise his own Church by a due attention and wise recom- mendation of its forms and decent rubric. If it be true that 144 Introductory Notice of the these forms have been for years neglected, let the public be brought back to them ; but to do this effectually it must be done gradually, and without shocking prejudices. Let your aim be, if vou will, to do the whole, but not the whole at one time. The people are children, and must be treated so, and begin with their letters, then go on to small words, and so on, till they read with facility. Such men as , injudicious advocates, send us backward for a century. Laud's premature ritualism condemned us to the Puritans, and was followed by the humdrumism of the revolution. We are emerging again into light. Don't let the Lauds of the present day send us back into darkness once more. * I groaned in spirit to-day over a Church of an opposite cha- racter, yet with a very worthy pastor, who in the cholera of 1831, when all ran away, stood by his flock, and personally visited every case, thereby rallying others round him, and so the plague was stayed. Yet nothing could be duller than the congregational worship. And why ? Because (like Popery, for extremes usually meet) there was no common prayer. The mi- nister read, the clerk responded, the congregation sate looking on and were silent. and I, however, did our duty by responding and singing audibly. I fancy I see you smiling ; but I thought it just possible that they might follow the example of the judges, if not now, yet in future, and was anxious to show by this means that I thought the congregation had something to do with it. If I saw the clergyman I would tell him to preach a sermon, and ask the congregation to try the effect of audible responses. It makes the service striking and inspiring. It ceases to be a dull form, and becomes a lively reality. * * I don't mean to dine with S on Sunday. Nobody, but certainly no clergyman, should give dinner parties on Sunday. I quite agree with those who avoid travelling or labouring either by self or servants on that day. It is too great a blessing to me to be at rest, for me not to wish others to have it also. Not that I feel the slightest harm in reasonable and innocent recreation. The evening walk for the tradesman or mechanic, the enjoyment of the open air and the green fields to the occu- pant of the close and confined workshops, seem to me not only Life of Baron Alderson, 145 not wrong, but deserving of positive encouragement. I would act upon the declaration that the Sabbath is made for man, and not man for the Sabbath. God's service first man's innocent recreation next ; both are consistent with each other both to be the object and mode of passing that day. So may it be a pre- cursor of the everlasting Sabbaths of Heaven, which surely can- not be either tedious or fanatical, but which dull fanatics make people dread rather than desire. * * * So wishes me to write on Divinity. I often think I will get a book, and write down from time to time my thoughts on such subjects I mean as detached thoughts, without connexion. One good would arise that one should compare one's mind of to-day, or last year, with that of preceding years, which might be of some use. * * Sunday after Ascension Day. Just back from church, where we had a capital sermon on ' Set your affections on heaven.' I quite agree that a great many very good people are not heavenly-minded. We live too much in action, and too little in contemplation, and go through the world in a bustle. I could not help turning in my mind how this conversation in heaven was the true cure for all earthly bereavements, remembering the P s. Let me suppose them, with their lost children, to have lived, having their conversation in heaven, and, as the Collect of to-day says beautifully, ' con- tinually in heart and mind thither ascending,' and what is a separation then ? It is only that one of the party is in spirit and reality gone before, and the rest are dwelling in heart and mind still with the departed ; just, so to speak, as I am now dwelling and conversing with you at St. Leonards, being myself left behind in London. There is, it is true, no ascertained com- munication between the two_ worlds ; yet who shall say that there is none at all ? I love to believe otherwise, and to believe that the dear ones lost on earth may be contemplating me as I re- member and think of them ; and so we may be enjoying a com- munion which, if I were worthy enough, might be a communion of saints. It is a strong motive, however, I hope, for exertions to become less unworthy. Whit Sunday, What is it that really constitutes the one humanity of all the L 146 Introductory Notice of the various races of men on the earth ? What is it that makes the Negro, the Carib, the Esquimaux, the Calmuck, the Hindoo, the European, one race ? In the first place, they are all the original work of God, who breathed into man the breath of life, spiritual and sentient. Secondly, they are all derived from a common ancestor. Thirdly, they are all redeemed by one Saviour. These things make them one, however much some may be debased in intellect by centuries of neglect however others may be changed in outward appearance by climate and vice. Whatever may be their religion, government, mariners, progress in arts or science?, and the like, still they are one, if they have the same breath of life, origin, and redemption, partaking of one common humanity which belongs to the whole race. May not this be the key to open the question of the true unity of the Church ? The Church is also derived from one common ancestor the new Adam; she is derived through one common stock the Apostles ; she was created, so to speak, as on this day, by the in-breathing into her of the Holy Spirit, who then first dwelt, and still dvvelleth, in her ; and she has only one Head, Christ, though she consists of various members, some more and some less honourable in themselves. Her common unity is thus wholly independent of external polity or forms. All who acknowledge Christ as the Head all who derive their Christianity through the Apostles all in whom the Holy Spirit dwells, producing the fruits of the Spirit, works of Christian love all who on the vital truths of the Gospel agree in belief, are the one Church of Christ. Some, indeed and these, I think, the wisest and best derive their Christianity through a series of teachers ordained by bishops, those bishops being ordained for that purpose in succession from the Apostles. Others, less perfectly constituted, have derived their teachers from teachers originally appointed by persons having authority from the Apostles, but not through a succession of bishops. Others have still further departed from primitive order, and accepted teachers solemnly appointed after prayer, and according to what they believe to be the doctrine of the Apostles. But all some more and some less acknowledge the Apostles as the first and only accredited teachers under our Lord himself. Again, some Life of Baron Alderson. 147 have a more perfect, and some a less perfect, form of ecclesiastical government, or a more pure or more debased ritual and external worship. But these things, though in themselves of the greatest value and importance, are but the accessories, and not the essence, of the unity of the Church. They are like civilization and barbarism to the unity of the human race. All who fall within the first category are branches of one Church, as all races of men, wise or debased, are branches of one common mankind. It is better, no doubt, to belong to the best and wisest race of Man ; so also it is better to belong to the purest and most perfectly derived and governed Church. But let us never forget that there is a most important duty arising from all this unity of Mankind. The enlightened members of the different races of Man should not, on becoming enlightened, desert their race, but remain, each man in it ; remaining for the very purpose of bringing it to perfection. This is their plain and paramount duty. Its ultimate reward is the equalization and real unity of all the races in one body of perfect knowledge and happiness ; and so should it be in the Church also. ***** And so the children are delightedwith 'ThePilgrim's Progress' ? I am not surprised, for it is a most amusing book for young people, being in the nature of a religions fairy tale. But its great merit is, that it is a really pious book. Kiss them both, and bid them pray that papa may, like Christian, be able to struggle through, and fight the good fight of faith, and that they may come after him like Christian's children. When one thinks how much is involved in this, it ought to make us pause and reflect seriously what a great deal is to be done how much of evil thoughts as well as evil deeds to be got rid of, and in what way. There is but one ; and I wonder how any one who fairly looks at himself, and his own unfitness, can hesitate about that. Here the Socinians appear to me to be sadly wrong, and I am sad to be obliged to think so, for there are many whom I respect living in that error. Yet it is surely not wrong to think that there may be mercy for them also, and that they may be saved by the atonement made for them, even though, from early education and habits, they thought otherwise themselves, L 2 148 Introductory Notice of the supposing they thought truly to the best of their belief and means of knowledge, and lived according to their belief in obe- dience to God's laws. I do think so, however. * * * Thoughts on the Origin of Evil. What a wonderful thing is the origin of evil ! How is it reconcileable with the goodness of God ? Perhaps it may help us, in considering the question, if we divide evil into two parts physical and moral evil. The former presents no great difficulty. It is consequent upon, and is, in truth, a punishment and remedy for, the latter. Labour, sickness, death, came after the fall of man, designed, apparently, to try us and bring us back to God. They are, indeed, fearful consequences of moral evil, but quite consistent with the benevolence of the Creator, and, indeed, similar in nature to the punishment of a child by its parent, which no one doubts to be consistent with the tenderest love and care for its welfare. But the difficulty is with moral evil. What is moral evil ? Is it not disobedience to the will of God ? It is that, and nothing else. Now if God was pleased to make man, and con- stitute him a free agent, it must follow (since it is inconsistent with the perfection of God to work a contradiction, and there- fore is impossible even for Omnipotence itself) that God must make man capable of obeying or disobeying. If he could only obey, he could not be a free agent at all. The existence, there- fore (the possible existence, I mean), of moral evil, arises, of ne- cessity, out of man's being created a free agent. And the ques- tion then assumes this form : Was it inconsistent with the benevolence of Almighty God to create man a free agent ? This is, indeed, the real question ; and I cannot but think that it sug- gests to every considerate mind its own answer that it is not. God does not will that evil shall exist, but permits to man the choice of obeying or disobeying, that His glory may be more pro- moted by man's willing obedience ; puts his command upon him a very light and easy one a simple abstinence ; adds a statement of the consequence, ' In the day that thou eatest thou shalt die,' the command easy, the alternative awful and then leaves to Life of Baron Alder son. 149 man to act freely. State this to any simple person ; would he doubt, if asked whether he considered it benevolent and kind in Almighty God to give him such an option, what to answer ? Yet the disobedience of Adam was the beginning and origin of Moral Evil. Does not this consideration, then, go far towards solving the difficulty ? God made man perfect (yet free to choose), and man has (by that freedom) ' sought out many inventions.' But surely it was benevolent to give him the choice. * * * * * Some Thoughts on Geology and Revelation. Creation being by the fiat of an Omnipotent Being (for I suppose that to be a conceded point), is only one fact. At the time of the creation of this our world, the law of matter and motion being part of such creation, reasoning from cause to effect begins. There can be no mere reasoning to establish how and in what former manner the world was created ; that is, and ever must be, a mere question of fact, depending on the evidence, direct and probable, applicable to it. Now the direct evidence, which is of a far higher degree than merely probable evidence, can only be that of lievelation. No one but the Almighty Creator was present thereat. For instance, why should we argue, as if we could arrive at any certain (I speak not of any probable) result by reasoning, whether the strata of the earth were created horizontal, and then disturbed ? It is certainly as possible, and, if there be evidence of it, as reasonable, to suppose that they were created in what we call a disturbed state, and which, if it has occurred since creation, is, no doubt, really a disturbed state ; for after that time the laws of matter and motion, by the hypothesis, began. To illustrate this further. If we see a man now, we con- clude from observation and physical reasoning that he was first a babe, and then a boy ; and we conclude rightly. But we should talk sad nonsense if we were to argue from this that Adam was created a baby, and then grew to manhood afterwards ; for our reasoning is upon the tacit supposition that we exclude the case of the first man. We ought also, if we wish to reason rightly, to exclude, by the same tacit supposition, the case of the newly- ] 50 Introductory Notice of the created world. Those who do not make this tacit exception, do in reality, though they do not say so, uphold the eternity and eternal change of matter, and deny a Creation and a Creator. It comes, then, to the question Have we a Revelation on this subject ? If we have, the direct evidence is conclusive. But this ought not in the least to prevent us from adverting to the various phenomena of the world, and using them as evidence of the fact, in due subordination to the direct testimony of this Revelation when established. As interpreters of Revelation, such phenomena are, no doubt, very valuable. In all probability, however, after doing this, we shall find that the rational con- clusion on this subject will be that the Revelation, though it incidentally and in general terms describes creation, yet does so only with the end of showing us thereby our moral relations with the Creator. It was never intended to teach us mere philosophy, It speaks to men, and generally according to the received know- ledge of the time when it was promulgated. If it had not done so, it would have been wholly unintelligible to them. The Bible says that God hath made the round world so fast that it cannot be moved. Was the Newtonian theory, that the earth moves round the sun, contrary to this ? Certainly not. The philo- sophy of Newton only shows that the real meaning of the passage is not according to the literal words, but that its true sense is, that the earth, relatively to the power of man, is stable, and cannot be moved by him. So the substance of the first chapter of Genesis is really no more than this that all things, matter included, and mind also, were created by Jehovah : perhaps, indeed, created in the order stated, and indeed pro- bably so, but not necessarily. Thus matter was first, covered with waters; then light, and so on. The periods called days imply this succession, but not necessarily more. The days are spoken of before that which measures what we call a day now a revolution of the earth, and the exposure of its successive parts to the light of the sun was created. It would be foolish, there- fore, to dogmatize on this point. No doubt, it was just as easy for a creation to take place by the fiat of Omnipotence in suc- cessive clays, or hours, or moments, or in successive intervals of any other length, or without any intervals at all. But how Life of Baron Alderson. 151 long the intervals or successive periods of light and darkness may have been before the sun was created, who can tell, or how does it concern us to know it ? Does it affect the fact of Jehovah's sole self-existence, and of His creation of all things out of nothing, which is the real point of this great Revela- tion ? The great discovery remains unaffected by the mode of creation : it depends upon the fact of a creation. Our dependence on Him is the same ; our relation to Him remains unchanged, whether the intervals of days are days of twenty-four hours, or as elsewhere said in the Bible, days of a thousand years. Each would bear in true philosophy exactly the same proportion to infinity. Let us leave the geologists, therefore, to examine and discuss. They are not wise to dogmatize about times and anterior creations. But it is an innocent, if it be not a very wise specu- lation, and need not give the slightest uneasiness to a believer in the Revelation of the Bible. The following are in the nature of the preceding de- tached thoughts, and, as such, may be inserted here. They embodied themselves in verse almost as often as in prose : Paraphrase on i Cor. xiii. v. 13. And now these three Faith, Hope, and Love remain, But Love, the third, far greater than the twain : For Hope, when once possession comes, must fade ; 'Tis Hope no longer than while joy's delayed. And Faith, that humbly trusts, with eye so bright, Is truth no more, when once absorbed in sight. Yet Love, unchanged in heaven itself, must prove Sublimed, ineffable yet still but Love. Yes, when the world, in God's dread awful day, In storms of fire shall melt and pass away When heaven's bright arch shrinks like a shrivelled scroll, And doubts and fears distract each troubled soul, 'Midst that stern tempest Love shall upward soar, And as it burns, shall only brighten more. 152 Introductory Notice of the On Visiting the Churchyard at Monmouth, on Palm Sunday, 1836. Rest, humble tenants of this holy ground ; I love to visit you when early spring Scatters with hand profuse its gifts around, Whilst duteous bands their annual offering bring Of freshest flowers, to crown each narrow bed ; And whilst they weep o'er many a kindred bier, They seem to say, ' They are not wholly dead They still dwell with us, while they slumber here.' O ! may no false philosophy deride The gentle superstition, nor with rude And heartless jeer into these haunts intrude ; But still may love, at meek religion's side, Triumphant over death, thus point the way To realms where friends shall meet in endless day. Thoughts in a Churchyard. ' Here lies!' 0, what a world of thought is there, Included in two words ! Beneath that stone, Some busy head, with never-ending schemes Of wealth and power, or pleasure's giddy whirl, Perchance awaits its doom. Alas, poor worm ! What can these wretched trifles now avail, That perished in the using ? Can it be For dross like this that thou hast cast away The priceless pearl thine own immortal soul ? O, couldst thou but return to tell the gay And thoughtless multitude what now thou know'st! Alas ! 'twere vain. In characters of light 'Tis written in His Word, and yet they read not. Now pass we onward. Underneath the turf, In death's calm peaceful sleep reposing, lies A heart which erst with holy sympathy Instinct, and purest love to God and man, Beat yet with trembling joy, as knowing well The bitter root of deep indwelling sin, Life of Baron Alderson. 153 Then most apparent to his clearer eye, When, raised in contemplation's earliest gaze, He viewed the awful purity of God. Blest spirit ! resting from thy labours here, Dead nnto sin alone, in living hope Thou wait'st thy coming Lord, soon, soon to hear His blessed summons ' Enter into joy.' What little stone comes next ? that marks the spot, Where, early called, ere yet life's evil thoughts Had stained thy soul with sin, thou, gentle babe, Liest, sweetly slumbering now. Alas, what tears, What sad regrets, did this, thy greatest gain, Cause to some loving hearts, that beat for thee With all a parent's fondness ! Now, behold They slumber at thy side, blest if at last, The burthen of the flesh cast off, their souls, Washed in redeeming Blood, are pure as thine. The question of Reformatories, about which it will be remembered that at an earlier period he had spoken doubt- fully, if not with actual distrust, was prominently brought before the public mind by the Act of Parliament passed for the encouragement of such institutions in the year 1 854. Whether, during the interval, circumstances had led him to modify his opinion, not as to the advisability of superadding banishment to detention for purposes of re- formation, but as to making it a sine qnd non to the system altogether ; or whether increased familiarity with the sub- ject, and the spectacle of its success on the Continent, had induced him to consider as practicable what in 1838, according to his reluctant admission, had struck him as the reverse, it is clear, from the tenour of his charge to the Grand Jury at York in the winter of 1854, that the difficulties in the case no longer remained in his judgment insurmountable. On the contrary, he seized the occasion to be almost the first to advocate, in strong and feeling 154 Introductory Notice of the terms, the utility of these institutions ; and perhaps it is not too much to say that a valuable impetus was imparted to the public feeling in their favour by his language upon that occasion. Almost the last subject of public interest which engaged his thoughts was the proposed re-arrangement of the Circuits, and other legal business. During the autumn of 1856 he was invited by Sir George Grey to become a member of the Royal Commission appointed for that purpose ; and although he only lived to be present at the first preliminary meeting, he had repeatedly given the subject his attention, and committed to paper certain suggestions which, had he lived, would probably have been imparted to his colleagues. At the same time, it should be remembered that they are the impressions with which, upon this occasion, he approached the in- quiry, and possibly not the precise result at which he would have arrived after mature deliberation with other members of the Board. From a few brief memoranda found among his papers after his death, it would appear that he still adhered to an opinion expressed by him, when the subject was last under consideration, in favour of a more equal division of the legal year by the two ordinary Circuits. The Spring Circuit, he thought, might begin as early as the second week in January, and extend to the end of the ensuing month ; the Summer Circuit might begin about the 2Oth of July, and last to the beginning of September. By this means he conceived that the necessity of a third Circuit might be, in all but extraordinary cases, avoided, without very materially sacrificing the Long Vaca- tion. Then as to the re-arrangement of the Circuits themselves, he says ' If any alteration be made, the num- ber of Circuit towns must be, I think, in the first instance diminished. The following seem to me to be capable of Life of Baron Alderson. 155 being discontinued, or united with others, without incon- venience : Appleby, Huntingdon, Rutland, Momnouth, and at least six counties of Wales/ Another point which he would seem to have considered was the possibility of reducing the number of Term times from four to three. In that case, the first Term of the year might begin on or about March ist, and last till the 28th of that month ; the second might begin on the i st, and last through the month of May ; and the third might begin as at present, on the and, and last until the 28th of November. Or if the four Terms were preserved, the whole curriculum of the year might stand somewhat as follows : Michaelmas Term as at present, and Sittings after do. Spring Circuit, January 7th to March loth. Hilary Term, March loth to April 6th. Sittings, April 6th to May 4th. Easter Term, May 4th to May i8th. Sittings, May i8th to June ist. Trinity Term, June ist to June 2 2nd. Sittings, June 22nd to July 2oth. Summer Circuit, July 2oth to August 3 ist. These were some of the points, the feasibility of which he was considering, when this sphere of public usefulness was summarily closed by his last illness and death. The two last summers of his life were spent in Nor- mandy. At the close of the former of them, passed at Trouville, at the mouth of the Seine a residence which afforded him an opportunity of indulging his roving pro- pensity by a tour through the western districts of the pro- vince he returned to London, to preside at the October Sessions of the Old Bailey, memorable for the trial of Sir John Dean Paul and his partners. 156 Introductory Notice of the The Long Vacation of 1 85 6 was passed at Dieppe . S eldom had he appeared to enjoy his holidays more thoroughly, and little could any one, a witness of the spirits and vigour by which he was animated, have anticipated that they were destined to be his last. As little, perhaps, would any one seeing him a few months later, upon the bench at Liverpool, presiding with what struck more than one observer, unusual force and ability, have conjectured that the hours of that vigorous intellect were numbered, and that even then he was taking an unconscious farewell of a scene familiar to him, as he observed, in his last charge to the Grand Jury, ' For now nearly fifty years.' An unfortunate shock the sudden news by telegraph of the alarming illness of his third son, followed by a long night journey, passed in great anxiety of mind may have served, more or less, to precipitate the approach of the fatal disease. It might almost seem as though for a moment the curtain of the future was raised, when he expressed, with an earnestness and solemnity of manner which the companion of his journey will not easily for- get, his conviction that his judicial labours had for ever closed. ' I shall never go another Circuit/ he exclaimed, with slow emphasis, before leaving Liverpool. On his arrival at Brighton, where he found his son still in serious danger, he did not appear to have suffered in health from the unwonted exertion of the previous night ; and the gradual improvement in the condition of the invalid, removed from his mind, in the course of a few days, all anxiety for his safety. There was yet an interval, after his return to London from the Liverpool Winter Assizes, before any indication of the impending blow. Once more was he permitted to gather round his table, as he loved to do at the season of Christmas, his children and others of his family and friends ; Life of Baron Alderson. 157 and although in the course of the day he complained of headache, and appeared oppressed with unusual sleepiness, neither circumstance was of sufficient gravity to challenge much observation at the time, or to awaken the slightest anxiety. It is probably only on looking back that they may be connected with the sequel/ as the first approaches of the malady by which he was to be so shortly prostrated. A few days more, and the blow fell. He had accepted an invitation to spend a few days at Beechwood Park, in Hertfordshire, the seat of Sir Thomas Sebright, and had left London on the 3rd of January to fulfil his engagement. On the second evening of his visit he was attacked with sudden giddiness and unconsciousness, which, however alarming at the time, appeared, after an interval of con- siderable length, to yield to the remedies applied, and he was removed in what seemed a convalescent state to town. There, after a delusive rally, the affection of the brain, whatever its precise nature, proceeded with gradual, but rapidly gradual, strides first taking the form of a strange quietude, and lack of interest in the scene passing around, and resulting finally in deep sleep, and total unconscious- ness. Between these two stages of the disorder there were times when the stupor was apparently lightened, and he even spoke; but its progress could never be seriously arrested. Once, at a comparatively early period of his illness, upon the conclusion of a chapter of the Bible which had been read aloud to him, after a long meditative silence, he broke forth, with something of his old earnestness of manner, with an exclamation on the absence of all sectarian spirit in the portions of the Bible inserted by the Refor- mers in the Prayer-book ; and once again, a few days later, he opened his eyes to recognise, and address with the fond- est affection, each individual around his bed to express, with something almost of rapture, but with perfect calm- 158 Introductory Notice of the ness, his joy in having those whom he most loved around him, and to join with them in receiving the Holy Com- munion. One expression, and one only, throughout the whole course of his illness, bore any reference to his own state, when, in answer to the inquiry how he felt, ad- dressed to him on the latter of the two occasions which have been mentioned, he exclaimed briefly, but character- istically ' The worse, the better for me.' This was the last of these few transient intervals of revival ; the rest was all unbroken slumber, out of which he had been only temporarily aroused, and into which he almost suddenly relapsed. For ten days more he lay with no material change in his condition, at the end of which time it became clear that he was rapidly sinking; and on the afternoon of January 27th, 1857, in the same perfect repose, with two gentle sighs, he breathed his last. He lies in the churchyard of Risby, his brother's living, near Bury, in Suffolk ; under the shadow of a portion of the Church which was his own gift in a spot uncon- sciously designated, a few short months before, as one in which he would like some day to lie among many of the humble poor, a class who largely shared his sympa- thies in life, and near whose grassy mounds, in congenial neighbourhood, he rests from his labours. * # * * * Twenty-six years of routine work half a century almost spent in a sphere of which all the action is comprised in the regular alternation of Circuit, Term time, and Vacation obviously do not possess the same materials for narra- tive as a career of enterprise or politics. It is enough if, in the necessary absence of more exciting matter, these pages may have indicated, however faintly, the inner side of a nature which not only voluntarily receded into the Life of Baron Alderson. 159 sphere of home, to be there best known and appreciated, but over which, moreover, its own complexity in certain particulars may have thrown a certain amount of disguise. The union in the same person of conflicting tendencies feelings \vhich are more or less veiled from the recognition of the world remain through life an enigma to many. It was impossible for those who knew him best not to be conscious that much of his deeper nature, and many of his most endearing qualities, were thus liable to be hidden from superficial observers. There were certain points in respect of which it might, perhaps, be justly said that the character of which this narrative treats exhibited a succession of remarkable contrasts. There was a disinclination to change, and a clinging to the associations of the past, which might induce the notion that he was by inclination ultra-conser- vative, and ill affected towards rational improvement at the price of change ; and yet instances might be cited, on questions of social, political, and religious interest, in which the capacity of his mind to adapt itself to the requirements of the day was unmistakeably evinced. He could retain to the close of life the same engaging simplicity of nature, without impairing, on the other hand, his usefulness as a practical man of the world. Where he deemed it a duty, he could bring his mind to the posture of the most childlike faith, without ceasing to be, in other matter, an acute and close reasoner. It might appear surprising, too, that to a temper of mind essentially serious he should have united the keen sense of the ludicrous, and uncontrollable love of fun, by which he will possibly be remembered, when other and higher claims to recollection are forgotten ; or that, while apparently yielding somewhat to a constitutional indolence of disposi- tion, he should yet have cultivated the habit of incessant 160 Introductory Notice of the intellectual employ ment, often most engaged in thought, when to all appearance least occupied. But apart from these points of antagonism, there were others also in which his character was liable to he misinterpreted. The warmth of heart and depth of feeling, which were veiled under a manner too inartificial to he always understood, were fully known to those only to whom circumstances were permitted from time to time to reveal them. Many with whom he mingled in society, and who have seen and judged of him from without, were backward to guess the strong sympathy which bound him to his fellow- men; and more than once has an erroneous impression been removed by the chance discovery of some act of kindness or timely countenance some little evidence of feeling, or word of encouragement, when encouragement was precious something, in a word, which disclosed what lay beneath the surface, and opened to view a heart which emphatically could sympathize with the joys and sorrows of others. And if the kindliness of his feelings was liable to pass unrecognised, his expression of his views and opinions from its very earnestness and freedom, was open to misconception of another kind. In talking on a matter which interested him, he was not careful so much to pick and choose his words as to give free vent to the current of his thoughts liberare animam. Even to a dis- cussion of comparative indifference, his kindling manner and emphatic tones often imparted an appearance of warmth Avhich the subject might hardly seem, to one who knew him less intimately, to warrant. It will not be out of place to draw attention, before concluding, to a few of the most distinctive points in his purely mental powers. It was said by one of his earliest and most eminent companions, both on the Northern Cir- cuit and the Bench, that he was an extraordinary instance Life of Baron Alderson. 161 of an acute and vigorous understanding, united to great powers of reasoning, and great wit. Perhaps the most marked feature, however, of his intellect was not so much either its power to grapple with difficulties, or the logical ability which it possessed, and of which many of his legal judgments afford proof, as the singularly rapid and intui- tive manner in which his powers of reasoning, and indeed of comprehension generally, were exercised. A hint or two, picked up here and there, often sufficed to enable him to spring upon the meaning of the whole ; he had often, to a great extent, mastered the details of a subject, where ordinary minds would have probably only appre- hended its outline. To this intuitive sagacity he owed not only in great part his professional success, but also the enviable ease with which he accomplished mental work of all kinds, however uninviting. Of the ' observing faculty' on the value of which he dwells, in forcible language, in a letter to one of his sons he furnished in his own person a notable instance. Wherever he went in whatever society he found himself, he carried with him the habit of acquiring information. Whenever anything was to be learnt, he had, as it were, a feeler out a pore open; and nothing which conveyed a new idea came to him amiss, from such com- parative trifles as the secrets of a training- stable or the art of the wrestler, to the phenomena of natural history and the structure of the human frame. His official work was in this respect turned to great account ; for the variety of material from which information might be gleaned, thus brought under his notice, served to familiarize his mind with an infinite number of subjects, and to give him more or less insight into almost all. No one, for instance, who happened to be present in a court of justice over which he presided, when points of medical science were M 162 Introductory Notice of the mooted, could fail to be struck by the familiarity he mani- fested with the subject, and the technical knowledge of anatomy which he possessed. And yet, he had probably never spent an hour in his life in its direct study ; but by putting together the results of medical testimony tendered in his presence, of conversations with physicians, and of his own desultory reading on the subject, he gradually amassed a body of information by no means inconsiderable. How the stores of knowledge drawn from persons or books were not only retained, but also subjected to such a mental arrangement as admitted of their being invariably produceable on demand, was even more remarkable. Doubtless, much was due to a naturally retentive me- mory; but that memory stood greatly indebted to the habits established by himself for its regulation in his early life. One of those rules was, it may be remembered, the exclusive concentration of the mind on the subject imme- diately before it. As a mental habit, the effects of this were invaluable. It is, however, in an aspect of secondary importance as an external trait, often giving him an absent and preoccupied air, that it serves vividly to recall his memory. So completely would he become engrossed with the one idea of the moment, that he had neither eyes nor attention for anything else ; and it required not a little skilful manoeuvring to re-awaken his interest in what was passing around. This state of intellectual absorption was never more exhibited than when reading. While so occupied, nothing short of actual interruption could dis- tract or disturb him ; and while he seemed merely to skim the contents of each successive page, it would afterwards transpire that nothing material had escaped perusal, and that he had, as it were, extracted the kernel of the whole. ' I do like to see the Baron disembowelling a book/ was Life of Baron Alderson. 163 tlie phrase of an intimate friend/ which aptly described his manner of possessing himself of the contents of his volume. A few words may be devoted, while on this head, to that which, if not a mental feature, was at least a mental acquirement, the cultivated and elegant scholarship which placed him at the head of his year at the university, and the attachment to which terminated only with his life. If the attention devoted to mathematics developed in him the able reasoner of after-years, in the classics he found something the effects of which were no less abiding, a perennial source of enjoyment and recreation. In this taste lay so great a part of the amusement of his leisure ; so characteristic of the man was the habit which it engen- dered of constantly expressing his thoughts or feelings in verse, that it has been felt that this circumstance would warrant a somewhat free insertion, in the course of this narrative, of verses which, apart from the question of merit, may be said to constitute a great part of the lighter history, as it were, of his life. A pleasing indication of the regard in which he held the ancient studies is furnished by the tone of corre- spondence maintained year after year with his old pre- ceptor, Bishop Maltby, in which, from the graver or more exciting topics of the day, they often glide back to the old subjects of the past, and the old relation revives once more, the pupil inviting, and the tutor according, his criticism to some classical effort transmitted by the former. A nice observation of persons or things, united to a genial temper, and a mind the grave mood of which closely underlies the gay, go far towards constituting a humorist. But though possessed of these, he had, nevertheless, rather a capacity for humour an appreciation of the humorous than that quality itself. Of wit, however, he M 2 164 Introductory Notice of the enjoyed a copious fund : it was the genuine product of his nature, and acquired an additional charm from the careless prodigality with which its shafts were scattered around. It is a delicate matter to criticise the quality or order of this or that man's wit ; but were the attempt in this instance made, it might perhaps be said that, though often dealing with ideas, it most frequently assumed a verbal character, revelling in the quaint or ludicrous collocations of language, and playing with peculiar brilliancy and felicitousness over the surface of words. In this ' verbal wit/ he might be pronounced to excel. By nothing will he be more vividly recalled by those with whom he was brought in contact, than by the many happy sayings and witty sallies to which he was in the habit of giving vent. Not a few of these linger in the reminiscences of the Northern Circuit, where his talents as caterer for the amusements of the bar were frequently invoked in his capacity of poet-laureate to the Circuit, or appointed satirist of men and manners. But matter of this kind it does not come within the scope of these pages to reproduce in detail, as, however relished by the initiated, it does not possess sufficient general interest to warrant insertion. His function is well described by himself at the commencement of one of these mirth- moving effusions : ' It must be well known how I have on all occasions endeavoured to catch the manners living as they rise, and to record in tuneful numbers the promi- nent adventures and fundamental features in the Northern Circuit/ It is enough to gather from the testimony of his con- temporaries how much he contributed to the life and vivacity of their common Circuit days. Speaking of this period, one of the most distinguished of them* writes as * Lord Wensleydale. Life of Baron Alderson. 165 follows : ( His reputation among us was the result of a great number of small instances of mental power and playful wit/ And another,* whose constant friendship dated from the time ' when they two joined company as barristers, and drove round the Circuit together in one carriage/ says : ' In society, on the Circuit, he was full of wit and fun ;' and very many of the witty and amusing things and writings, in prose and verse, which entertained us all at the Grand Court of the Northern Circuit, were the product of his brains : and yet he never brought forward anything which was ill-natured, or calculated to wound the feelings of those who w r ere made the subjects of joke/ There is an obvious difficulty in giving more than a general idea of a faculty which exercised itself unreservedly upon the incidents and persons that passed, as it were, under its review ; but a few examples may not be deemed unac- ceptable of the happy rapidity with which, on the spur of the moment, he threw off an epigram or impromptu. In that which immediately follows, he contributed his quota to a subject prolific of similar efforts Chantrey's wood- cocks shot at Holkham, and immortalized by the art of the illustrious sculptor. It was at the time of the Reform Bill that he happened, with the Bishop of Durham, to be talking of inscriptions for the marble; and upon the Bishop's producing a Greek one, he took his pen and wrote the following, availing himself, in a spirit contrary to that of its originators, of the cry introduced on the hustings, by Mr. V. Harcourt, M.P. for Oxfordshire, and repeated all over the kingdom at the General Election of 1831 :- Behold the fruits of Chantrey's gun Two woodcocks, and the shot but one ; * Sir J. Patteson. 166 Introductory Notice of the But happier far for Church and State, Had it but been the artist's fate To miss the body, and to kill ' The Sill, and nothing l>ut the Bill? In 1 835, Mr. Baron Vaughan, who had agreed to go from the Court of Exchequer with Baron Williams one to the Common Pleas, and the other to the Queen's Bench, to he replaced in the first-mentioned court hy Barons Parke and Alderson refused to go without a seat in the Privy Council ; and not coming to the Chancellor's room, where the matter was to have been finally concluded, the judges concerned returned to their respective courts. It was afterwards arranged hy Lord Brougham. Shortly before, it was said that Sir William Home had lost the post of Attorney- General, by a rash acceptance of a seat in the Exchequer, which he afterwards tried to refuse, and so missed both places. These two occurrences gave rise to the following colloquy in verse : Says heedless Home To wary Vaughan, Why doubt you thus Lord Brougham ? Come, take the oath, And, nothing loth, Go to his private room. To heedless Home The wary Vaughan Thus tauntingly replied : Indeed, Sir Will, 'Twere no great skill To take you for my guide. In vain Brougham tries To blind my eyes ; In vain he tries to coax ; I know as well As he can tell, HOAX spells hoax. Life of Baron Alderson. 167 At you, dear Home, Each night and morn, The cunning lawyers scoff; But as for me, Eight Hon. I'll be, ' . Or else I'll be right off. A well-known barrister on the Northern Circuit, who afterwards attained the Bench, was unsuccessful in his application for a silk gown, after having been recently re- turned as a member to Parliament. In a squib, intended as a parody of some Greek lines, he is represented by the poet-laureate as defying the obdurate Chancellor and as mainly falling back, for his own consolation, on the reflection, that, ' after all, stuff would go down with the House/ Upon one occasion it happened that a learned counsel, in the course of an argument before him, was led to quote some observations on the Courts of Common Law, made by an eminent ex-Chancellor in the House of Lords. His dissent from the view adduced was intimated in the fol- lowing laconic note, which he wrote, and passed to the learned gentleman : ' I am clearly of opinion, from the observations quoted to us, that X-Chancellors are not always Y's (wise) Chancellors/ The origin of the following is sufficiently explained by the note prefixed to it : ' Ode to the Lay Lord attending de die in diem the House of Lords, sitting in error, from a Pitying Spectator. Written during the argument of the Bishop of Derry v. the Irish Society, June 22, 1846 a very hot day :' In other days, the men of old, Out of their flock, a goat selected, Placed on his head their sins untold, Then to the wilderness ejected, 168 Introductory Notice of the That he instead of them might bear Their countless errors, wretched wight, Into the howling waste and there Get rid of them as best he might ; So thee the House select as fit, In spite of thy reluctant terrors T' attend to-day in turn, and sit, Responsible for all their errors. And what's the howling waste afar, Or what its beasts, compared with those Who now, arranged behind that Bar, A host of manes and tails disclose ? Poor scapegoat of the House's form, Condemned to listen, right or wrong, In weather that's so very warm To men who speak so very long : Condemned to hear, with aching head, And mind, alas ! on fullest stretch, Sir Thomas, too profuse of Z Aud not profuse of H. Thou startest when they talk of Coke, Of Butler, or the last collation ; Alas, alas ! that eager look Denotes esurient expectation. Now poppied sleep above thy head Floats nodding on her silken wings ; Thou dreamest yet, alas ! in dread For e'en thy dreams are fearful things : Protection gone corn sadly low Maynooth Coercion Tariffs flit Before thy sleeping eyes and lo ! Sir Robert comes instead of Pitt An airy lord of Ways and Means, A fearful engine of Progression, He seems t' abolish Bishops, Deans, And Canons, too, in sad succession. Now followed by a rabble rout, The labourer's friends he rudely scatters, Life of Baron Alder son. 169 While artisans in triumph shout, And pensive farmers weep in tatters. Eftsoons near some cross dreary road, Mixed with a crowd of faces silly, Thou seem'st to wait the coming load Of Richmond Coach or Derby Dilly ; Meanwhile Lord John and Peel frisk by At railway speed a sad connexion " Take care of your own toes," they cry " That's for your corn the sole Protection." That dread imaginary pain Has roused thee lo, thou rubb'st thine eyes And upright on the Bench again, Endeavourest vainly to look wise. Thus from perturbed slumbers waking, 'Tis better far, before we go, To sit and yawn, than thus be breaking Thy landlord's heart with fancied woe. And hark ! the pealing clock strikes four The hour of freedom's come at last 'Tis done the periodic bore The writ of error now is past. Home to thy loving, longing spouse, With mingled grief and triumph say, I've done my duty to the House, But ah ! like Titus, lost a day ! One word only, and this sketch may be brought to a close. Although approaching the term usually allotted to the life of man the appointed threescore years and ten the closing in of his earthly career, as it was undoubtedly sudden, was also in a certain sense prema- ture. And yet, it will scarcely appear so, on reflection, to any who knew him really well. An exquisitely sensi- tive organization a brain literally hardly ever at rest do not carry with them, however great the physical 170 Life of Baron Alder son. strength, the promise of longevity. That for so many years he was permitted to do his appointed work, was, to one imbued with his deep sense of duty, a source of con- tinual thankfulness to God. In the thought of what he was during those years, lies a fund of enduring comfort for those who mourn his loss. THE CHARGE TO THE GRAND JURY OF THE COUNTY OF DORSET, AT The Opening of the Special Commission at Dorchester, ON TUESDAY, nth JANUARY, i83r. GENTLEMEN OF THE GRAND INQUEST, I greatly regret that this, my first occasion of addressing a body of grand jurors, should have occurred under such painful circumstances to us all ; and that, instead of being able at an ordinary assizes to congratulate you on the state of your county and the decrease of crime, it should be my duty to advert to topics of a far different and more unpleasing description. We are assembled for the purpose of investigating, at this unusual period of the year, the numerous offences which have of late prevailed in this county. Nothing can be more desirable at all times than that the innocent, if falsely accused, should be speedily delivered from the charge ; and that, without delay, a severe but useful example should be made of the guilty. If this be true at all times, it is more peculiarly so at a time like the present, when we have seen, in various parts of the king- dom, many of the lower orders of the community assembling themselves in large bodies for the redress of their real or supposed grievances ; tumultuously proceeding from parish to parish, and almost from house to house, committing acts of outrage and violence ; demanding, with threats, from the peaceable inhabitants of their districts, forced contributions ; and destroying property of the greatest value to its proprietors, and of the utmost importance to the community. In other districts large quantities of agricultural produce have been consumed by fire, men's dwellings have become insecure, and general alarm and anxiety have extensively prevailed through- out the kingdom. Under such circumstances as these, his Majesty, relying on the loyalty, firmness, and good sense of 172 The Charge delivered at Dorchester, his people, has called upon us, under this Special Commission, to investigate the cases of these offenders, and to bring them, if necessary, to due punishment a measure doubtless of wise and prudent precaution. If the law were not promptly ad- ministered, and such outrages, by firm and vigorous measures, repressed, I know not to what extent they might not go, nor whether we should long be able to retain those blessings which the happy constitution of this country, steering a middle course between arbitrary power and wild misrule, has hitherto preserved for us. It has given me, and those with whom I have the good fortune to be associated, much satisfaction to find that the call has been promptly answered and obeyed. In the two counties to which our labours have been extended, we have met with the most active and intelligent co-operation from all classes of society ; and we doubt not indeed this assemblage of the gentry of this county to-day, and, I may add, of the yeomanry yesterday, proves that we ought not to doubt it that the same alacrity and intelligence will be found here, where our painful duties will terminate. It is very difficult to determine from what causes these disorders have originated, which have of late disturbed and dis- graced this kingdom. I apprehend that those are much in error who assign any one cause as sufficient to account for what we have witnessed. Distress is said to have produced it ; yet it would be difficult to show that the distress of this year has exceeded that of the last, that the wages of the labourer have lately diminished, or that the price of the principal articles of his subsistence and clothing has of late increased. But yet I do not doubt that distress is one of the causes of the evil ; distress sufficiently heavy, but yet, I fear, greatly exaggerated by interested and wicked men for their own bad purposes. Even in this kingdom, in which alone of all others there is a legal provision for the poor, poverty prevails perhaps in- creased by the maladministration of those laws which are in- tended to relieve it. The encouragement which has been given to early and improvident marriages, and the consequent forced increase of the population, coupled with the payment of part of his wages in many parishes from the poor's rate, have lowered the labourer in the scale of society ; and at the same time, the general spread of education which has extended even to him, and which has enabled a much greater number to read and write than in former times, has placed him in a on Tuesday, nth January, 1831. 173 situation to feel more acutely his relative inferiority, without at the same time proceeding far enough to enable him to under- stand fully the real causes out of whicli his change of condition has originated. It is on a population thus distressed and half instructed that evil men have been too successfully practising their dangerous arts. They have endeavoured to persuade the poor that they are to be made rich by a change of law produced by force rather than by labour ; and have asserted that a gene- ral determination prevails amongst the higher classes to oppress them as tyrants, rather than to assist them as friends. They have endeavoured to dissever the bonds which hold society together, and to array in hostility against each other those whose mutual interests would require the most cordial co-operation and union. One of the means which they have employed for this purpose has been the dissemination of works of a dangerous description amongst the people ; and another has been to pro- cure large bodies of the lower classes to assemble together, for the alleged purpose of discussing their grievances and the best means of relieving them. On these occasions those grievances have been exaggerated, their cause misrepresented, and the people, who feel the pressure of distress, but who are not able correctly to estimate its causes, have been thus led to suppose that their distresses have their origin in the mode in which the farmer conducts his business, and have thereupon proceeded to destroy the property of the existence of which they complain. The law has, however, provided remedies which, if properly and prudently enforced, would prevent some of these evil con- sequences. As magistrates and gentlemen of estate in your districts, it will be your duty to discourage and discountenance all such dangerous publications as may come under your notice, and, in some cases perhaps, to cause them to be subjected to investigation by the constitutional tribunal of a jury of the country. But upon this subject you will, of course, exercise a prudent and liberal discretion, confining the employment of such a power carefully to those publications which exceed the limits of all decency and good order, but not restraining the freest discussion on all subjects, if conducted within those limits. By these means the evil may be in some degree palliated. A far better and more eifectual cure will, however, be found in the diffusion, amongst the poorer classes of the community, of pub- lications of a more useful description, which will at once enlarge the sphere of their information and improve their moral con- 174 The Charge delivered at Dorchester, dition, diffusing amongst them tlie benefits of knowledge with the blessings of religion. With respect to the next head, that of dangerous and un- lawful assemblies, the law provides a full and sufficient remedy both for their prevention and punishment. By the common law, all unlawful assemblies of great numbers of people, with such circumstances of terror as are calculated to excite alarm and to endanger the public peace, are prohibited, and wisely prohibited, even though they proceed to no act of destruction, or injury of persons or property. For unless this were the case, such assemblies, acquiring additional strength the longer they continue together, would soon prove dangerous to the State. Their numbers would increase ; their passions would become inflamed; they would grow bolder as they proceeded; and the example of the more violent would hurry on the rest from slight violations of the law until they arrived at offences of the greatest magnitude. The law therefore provides, that none can join such assemblies without incurring the risk of some punish- ment for that simple act. It is against the violence of such riotous assemblies that the statute ist Geo. I. c. 3, s. 5, was directed ; which makes it a capital offence for twelve persons, or more, being unlawfully, riotously, and tumultuously assembled together, to remain or continue so assembled for the space of one hour after pro- clamation made in the King's name to disperse and depart peaceably to their habitations ; and which contains provisions authorizing the seizure of such persons, and constituting it a capital offence wilfully and knowingly to obstruct, or in any manner to oppose, hinder, or hurt any person beginning or going to make such proclamation, whereby such proclamation is prevented from being made. And all those who have a knowledge of such hindrance, and continue together for one hour, to the number of twelve or more, are by the same act made criminal to the same extent as if the proclamation had been made. This surely is a measure calculated to suppress mischief in its origin, and prevent those dreadful crimes which are the ordinary results of a riotous and tumultuous mob. ilany persons have fallen into the error of supposing that because the law allows one hour for the dispersion of the persons to whom the proclamation has been read by the magistrate, the civil power and the magistracy are during that period disarmed, and the King's subjects are bound to remain quiet and passive, whatever may be the conduct of the mob. on Tuesday, nth January, 18 31 . 175 The language of the Act does not warrant any such construction, nor could such have been the intention of the Legislature. The civil authorities are left in the possession of all the powers with which the law had previously invested them ; all peace officers may and ought to do all that in them lies towards the suppres- sion of such mischief, and may command others to assist them : and by the common law also, any private person may lawfully endeavour to appease such disturbances by staying the persons engaged from executing their purpose, and by stopping others who are coming to join them ; and all persons, even a private individual, may do any thing, using force even to the last extremity, to prevent the commission of a felony. Whilst I am on this subject, I wish to draw your attention to an act which provides a great additional security to the public peace. The 7th Geo. IV. c. 37, empowers two justices, on the information on oath of five respectable householders, to add to any extent to the number of peace officers, by making special constables iu cases of apprehended tumult, riot, or felony. This species of constitutional force has been rendered most effective in the two counties which we have just quitted ; and I am glad to observe that it has been equally so in this county, by admirable arrangements, which, if acted upon with regularity and perseverance, will be a most important means of preserving the public peace, and preventing criminal outrage of every kind. And it should be known, that whilst his duty to his country requires from every individual selected to fill this office by the magistrates a willing obedience to their order, the law secures his compliance by making him liable to indictment in case of refusal. The 7th and 8th Geo. IV. c. 30, which protects, by the penalty of death, houses and other property from tumultuous mobs, affords another protection to the public peace. It provides, that if any persons, riotously and tumultuously assembled toge- ther to the disturbance of the public peace, shall unlawfully and with force demolish, pull down, or destroy, or begin to demolish, pull down, or destroy, any church or chapel, or any chapel for the religious worship of dissenters duly registered, or any house, stable, coach-house, outhouse, warehouse, office, shop, mill, malt-house, hop oast, barn, or granary, or any build- ing or erection used in carrying on any trade or manufacture or any branch thereof, or any steam-engine, every such offender shall be guilty of felony, and on conviction shall suffer death. The same act contains clauses imposing less severe punishments 176 The Charge delivered at Dorchester, upon the destruction of machinery otherwise than by a riotous assembly of persons. By the third section, the cutting, breaking, or destroying, or damaging with intent to destroy or render useless, any loom, machine, or engine in the silk, woollen, linen, or cotton manufactures, is made a felony punishable with trans- portation for life or for any term not less than seven years, or imprisonment for any term not exceeding four years, to which whipping (in the case of a male), and, by another clause, hard labour or solitary confinement, may be added. The offence of destroying or injuring other machinery is provided for by the fourth section of the same statute, which makes it a felony punishable by transportation for seven years, or imprisonment for any period not exceeding two years, with the discretionary addition of whipping, hard labour, and solitary confinement, if any person shall unlawfully and maliciously cut, break, or desti'oy, or damage with intent to destroy or render useless, any threshing-machine, or any machine or engine, whether fixed or moveable, prepared for or employed in any manufacture except that of silk, woollen, linen, or cotton. By another clause in this statute, express malice against any particular individual is not required to constitute this offence ; and I may also add, that threshing-machines, in the opinion of the judges on this commission, are equally within the protection of the law, whether at the time of the destruction or injury they are in the course of employment in their entire state, or have been taken into separate pieces from apprehension of danger or any other cause, with an intention of putting them again together for use. By these enactments the Legislature has endeavom-ed to pro- tect machinery of all descriptions from the attacks either of violent and ungovernable mobs, or of ignorant and misguided individuals. The wisdom of these laws seems unquestionable. The use of machinery is one of the great sources of our national wealth and prosperity ; and, whilst it is highly beneficial to the community to which we belong, it is far from being injurious even to those individuals with whose employment it may at first sight seem to interfere. The cheapness of production which is caused by machines increases the demand for manufac- tured articles ; that increased demand causes a further demand for labour ; and thus machinery in the end increases labour. For evidence of the truth of this proposition we have only to refer to the great manufacturing districts of this kingdom, in which, during the present century, the improvements in ma- chinery exceed belief; and yet the means of employment and on Tuesday, nth January, 1831. 177 the number of labourers employed have in the same districts almost kept pace with those improvements. There is a beauti- ful and simple illustration of this principle, to which you will perhaps permit me to refer, not with a view to your informa- tion, but to that of others. Before the invention of the printing-press, a body of men used ^to gain their livelihood by the copying of manuscripts ; these men were wholly thrown out of employ by that brilliant and useful invention. Suppose they had collected a mob and had proceeded to destroy all printing- presses. I pass by the evil which the world would have sus- tained had such an enterprise been successful ; but I ask (which is the point to which I would call your attention), how much labour would have been thereby destroyed ? The printers and pressmen, the paper-makers, and mechanics who owe their employment to the printing-press, and who are a thousandfold more numerous than the old copiers, would never have been called into existence. The threshing-machine is said to increase the produce of the sheaves, and to diminish the expense of production of that most important necessary of life, bread-corn. But if its use be in any other material respect profitable to the farmer (and the increased number of such machines would seem to be a decisive proof of that position), it cannot in the end be otherwise than advantageous to the labourer. The arguments against its use would apply as well to the use of the scythe or to that of any other agricultural implement by which manual labour is shortened or rendered more efficient. If the labourer in agri- culture thinks he ought to be allowed to put down these machines, let him consider for a moment how the same privilege could justly be refused to the artisan. But if it were claimed and acted upon by the artisan, the clothes and other necessaries of life which the labourer now requires would become dearer ; and then if all were to exercise these supposed rights, and all machinery were destroyed, the labouring classes of the country would be themselves the first to suffer the most dreadful dis- tresses, and the whole community would gradually sink into the lowest state of civilization. But though these are undoubted truths, the less instructed part of the people is too often blind to them ; and as this most valuable property is exposed to great risk from their ignorance and their passions, its safety is to be found in that protection which the law has provided, and which it must give to machinery as well as to every other species of property. If that law ceases to be administered with due N 178 The Charge delivered at Dorchester, firmness, and men look to it in vain for the security of their rights and the enjoyment of their property, our wealth and power will soon be at an end, and our capital, skill, and indus- try will be transferred to some more peaceful country, where laws are more respected or better enforced. The next offence to which I shall draw your attention is that of robbery from the person a crime which has of late been very prevalent in these parts of the kingdom. The legal defi- nition of robbery is the taking away from the person, or in the presence of another against his will, his personal property of any value, by violence or putting him in fear. Actual violence is not necessary, nor is it necessary that the robber should with his own hand take the property from the person robbed. It is enough if he obtains it by means of terror which he has excited for that purpose ; and though the money be delivered by the prosecutor himself, it is in the eye of the law as much a taking by the thief as if he himself had taken it out of the pocket of the party robbed : nor does it make any difference if the money was asked as a gift or loan, or xiuder any other colourable pre- tence ; the offence is committed, if in truth the money was extorted by putting the other party in fear. This may be done by such menaces, by word or gesture, or such circumstances of terror as in ordinary experience create an apprehension of danger in a reasonable man, and induce him to part with his money in order to avoid it. The apprehension may be of danger to the person, the family, the habitation, the property of the prosecutor, or that with which he is entrusted by others ; or it may be such fear of peril as a large body of men armed with offensive weapons, and apparently resolved on mischief, would excite, though no particular threat is used or injury designated by them at the time. If terror of this nature be created by any person, in order to induce another to part with his money, and he does so under the influence of that terror, this constitutes the offence ; and all who are present aiding and assisting by act, word, or gesture, or are present merely, provided they are of the same party engaged in the same design with the person who commits the crime, and are intending that it should be com- mitted, are as guilty as the man by whose hand the offence is perpetrated. This offence is, by the same statute of which I have made so frequent mention, punishable by death. An assault with intent to rob, a demand, with menaces or force, of property from another with intent to steal, is also made a felony punishable by transportation for life or for a term not less than on Tuesday, nth January, 1831. 179 seven years, or by imprisonment not exceeding four. For the application of this law I am afraid you will have some occasion during the course of your present labours, as so many instances have occurred of large bodies of men traversing the country, and demanding or extorting money by threats or the appear- ance of force ; many, perhaps, not knowing the serious extent of their legal responsibility. The last offence I think it necessary to mention is the crime of arson one of the worst offences known to the law, of the deepest moral dye, easy of perpetration, difficult of detection, and most alarming and destructive in its effects. It is justly punished with loss of life. At common law the malicious and voluntary burning of the dwelling-house of another, or of a barn with corn in it, was a felony ; and certain ancient statutes made this offence and that of burning of ricks or stacks of corn, grain, and hay, in the night, or in particular counties, punish- able with death ; and now, by a statute passed in the 7th and 8th years of his late Majesty's reign, which re-enacts a similar provision of the pth Geo. I., the law on this subject is simply and clearly defined. Ihe pth section of this Act constitutes it a capital offence unlawfully and maliciously to set fire to any church or chapel, or to any place for the religious worship of dissenters duly registered, or to any house, stable, coach-house, out-house, warehouse, office, shop, mill, malt-house, hop-oast, barn, or granary, or to any building or erection used in carrying on any trade or manufacture or any branch thereof, whether the same or any of them respectively shall be in the possession of the offender or in the possession of any other person, with the intent thereby to injure or defraud any person. The i7th section renders it also a capital offence unlawfully and mali- ciously to set fire to any stack of corn, grain, pulse, straw, hay, or wood ; and the latter part of the same section subjects any person who shall unlawfully and maliciously set fire to any crops of corn, grain, or pulse, whether standing or cut down, or to any part of a wood, coppice, or plantation of trees, or to any heath, gorse, furze, or fern, wheresoever growing, to trans- portation for seven years, or to an imprisonment for any time not exceeding two years, according to the discretion of the court before whom the offender shall be tried. And by the 25th section it is provided that, as to all the malicious offences in that Act mentioned, the punishment shall equally apply and be enforced whether the offence shall be committed from malice conceived against the owner of the property in which the offence N 2 180 The Charge delivered at Dorchester, shall be committed, or otherwise. The law therefore is distinct and clear, that the offence of burning barns and stacks and other property is punishable by death, at whatever time of the night and day it is committed, and that it is equally so whether it arise from mere malice that is, a wicked disposition or from a hostile feeling against a particular individual. None can doubt the wisdom of this severe law ; and its execution, where the guilty shall be detected and convicted, will deter others from the commission of so dreadful an offence ; and though there are many incendiaries whose atrocious acts are at present involved in mystery and obscurity, I trust that the time will arrive ere long, as it generally does in cases of crime, when their guilt will be revealed and punished even here. I have thought it expedient to mention these provisions of the common and statute law to you, in reference not merely to the offences contained in this calendar, but to those also which have been of late so prevalent in the adjoining districts of the kingdom. It is desirable that the law on these points should be clearly and generally understood, in order that no one here- after may err from an ignorance of its provisions. It is to the wise and firm administration of these laws that we must look for the restoration of our tranquillity. When this desirable object shall have been attained, there will still remain for you, gentlemen, and for those who are, like you, possessed of wealth and influence, a far more pleasing and not less important duty. You will have to prevent the future occurrence of such proceed- ings, by removing as far as possible the causes of them. I am well aware that to generous minds it must often be a subject of deep sorrow and mortification to find that, in many instances, their best endeavours to promote the good of others have been misconceived, or met with indifference and ingratitude. But even if this should have been the case, I am sure that you, gentlemen, will not be discouraged from continuing to employ your utmost exertions towards the improvement of the condi- tion of your poorer neighbours. By giving to them an educa- tion which shall consist not merely in reading and writing, but in the knowledge of their varioiis duties by endeavouring to make them more prudent and more virtuous citizens, you will place the only effectual bar to the increase of pauperism and its consequent wretchedness. Poverty is indeed, I fear, inseparable from the state of the human race ; but poverty itself, and the misery attendant upon it, would, no doubt, be greatly mitigated if a spirit of prudence were more generally diffused on Tuesday, nth January, 1831. 181 amongst the people, and if they understood more fully, and practised better, their civil, moral, and religious duties. By your advice, therefore, and assistance on these important sub- jects ; by your relief of the distresses of the poorer classes, where they exist ; by your patient attention to their complaints, even where those complaints are from their ignorance ill-founded ; but, above all, by the force and effect of your own examples by your loyalty to the King, your obedience to the laws, and attention to the duties of religion, you will, I trust, under God's good providence, prevent these evils from spreading, and retain and ensure the tranquillity of the realm and the happiness of the people. Gentlemen, you will now retire to your room, and proceed to the discharge of your peculiar duties on this occasion. THE CHARGE DELIVERED AT THE COUNTY HALL, CHESTER CASTLE, DECEMBEil 6th, 1848. GENTLEMEN OF THE GRAND INQUEST, You have been called together at an inclement season of the year to discharge one of those important duties which devolve upon persons of estate and condition in this country that of placing in a state of accusation those whose supposed crimes have caused their apprehension by justice, in order that the truth of the circumstances which are urged against them may be more fully and carefully investigated. It is certainly in this county, though I am sorry to say not in the neighbouring one, very unusual to do this : the reason, judging from the calendar which lies near me, and seeing the nature of full half the charges contained in it, is, I presume, a desire on the part of her Majesty's Government that tbe trial of certain individuals who are accused of conspiracy and sedition should no longer be delayed, in order that, if guilty, the prompt example of their punishment may have a tendency, with God's blessing, to restrain and deter others from such dangerous offences; and that the peace and tranquillity of the realm, en- dangered by their practices, may be the better preserved. I am sure that you will readily make a sacrifice of the time and con- venience which the exigencies of the public service seem to require, and that you will deem it to be your most bounden duty to assist her Majesty the Queen and her responsible advisers in this most urgent and proper object of their care and anxiety, merging, as I am sure English gentlemen always have done, and will do, all minor differences of opinion in the para- mount determination to pursue the public good, and seek the peace of the whole realm. In this, at least, I trust we have at all times been, and by God's blessing shall continue to be, an united people. Permit me to say to you a few words, however, on the nature Charge delivered at Chester, Dec. 6th, 1848. 183 of the offences which have caused \is to come together ; and if I venture to assign any causes for their occurrence, and presume to urge upon you any suggestions for their repression and cure, forgive me, for I do it in good faith, after some reflection thereon, and at least, if in no other way useful, my observations may cause you to reflect, and out of that may come the better fruits of your own more mature consideration for the public good. 'I speak as unto wise men : judge ye.' He must have looked with a careless eye at what has been going on around us, who has not observed the transition state, so to speak, in which society now is, and the signs of im- pending peril which are manifest throughout, I may say, the whole civilized world. In the language of prophecy, to which at this peculiar season our Church calls our attention, we see or read of ' wars and rumours of wars nation rising against nation and kingdom against kingdom.' We have felt famine ; we are dreading impending pestilence ; around us are the seas and waves of popular assemblies tumultuously roaring ; the powers of the world seem shaken and falling. Europe in the last year has been convulsed to its very centre. Its ancient dynasties, where are they 1 Even the mighty fabric of ecclesiastical power seems crumbling to pieces at its seat at Rome ; and he whose great predecessors claimed presumptuously to confer and take away kingdoms, is now a fugitive, it seems, from his own people's infatuated violence. Upon our own kingdom the same storm has fallen, but, blessed be God for it, with diminished violence. The causes of animosity which existed, and I fear still exist, abroad, are not found in such abundance here. Our people are free, and they know it. They have institutions not faultless, God knoweth for what human institution is so? but still bearing good fruits, and they love and respect them yet. They have a monarch whose private character and public conduct deserve their attachment, and they are still attached to her with loyalty and affection. Amidst privation, though distress has fallen upon them, they have not forgotten this. The heart of the people is yet sound ; and while that remains so, there is good hope for the people themselves. There is, however, a reverse to this picture. It would be idle to deny the existence of severe distress. It is to be observed, also, in what state the population is, on which this distress has fallen. The labourer is lowered, inevitably perhaps, but still lowered, in the scale of society ; and at the same time, the 184 The Charge delivered at Chester, general spread of education, which lias extended itself to him, and which has enabled a far greater number than in former times to read and write, has placed him in a situation to feel more acutely his relative inferiority, without proceeding far enough to enable him to understand fully the real causes from which his change of condition has originated, and the true means by which alone it can be palliated or remedied. It is upon a population thus distressed and half instructed, that designing men have been too successfully practising their arts. One of the rneand which have been employed by these persons has been the dissemination of irreligious and seditious publica- tions amongst the people ; and another seems to have been the assembling of large bodies of their unhappy dupes, in order, as they say, to discuss their grievances, and find out the best means of relieving them. Such assemblies will always produce their natural fruits. The people who feel the pressure of dis- tress are led to believe that an organic change in the constitu- tion and the laws would relieve them ; and, following their guides, proceed onwards till they arrive at open rebellion. And yet the whole experience of universal history would lead rational men to an opposite conclusion. Whatever be the physical privations of the mass of the people, it is clear that the immediate effect of insubordination is to aggravate their intensity. An example, and a very plain one, will illustrate this. It is one whose truth I wish I could enforce upon my poorer friends, whose sufferings I do commiserate most sincerely, and would willingly, if I could, relieve them. In a late very interesting statistical account of Paris, I find that if we take the period just at the beginning of the French Revolution, following immediately, no doubt, on a period of great political oppression, the physical comforts of the people, who had had for some centuries, so to speak, no political rights, greatly exceeded those of the empire in its most flourishing days ; that they were still further de- pressed by the bloodless Revolution of 1830 ; and no doubt if we could now ascertain them, they would be found low indeed, probably at or below the point of actual starvation. I hold the book in my hand : let me read to you the results. And let me premise beforehand that Yauban, Bossuet, and La Grange, three men of totally different pursuits, habits, and ideas war, religion, and science ; generals, bishops, and philo- sophers have each told us, in different language, what amounts to the same thing, that the richest and most comfortable nation December 6th, 1848. 185 is that which can afford to eat the most meat. Now, let us see what was the average of the meat consumed in Paris in the year 1789 by the masses of the people ; what it was in the empire; what it was at the Revolution of 1830; and what it probably may be now. It is curioiis to observe that the people in Paris in the year 1789 consumed i47lbs. of meat per man. In 1817, which you will I'emember was the conclusion of the empire, it was reduced to nolbs. 9 oz. In 1827, which was in the interval of time from 1815 to 1830, being the period after the restoration of the Bourbons, it kept its average at i ioR)s. or nearly so rather more than uofts. of meat per man. But after the Revolution of 1830, it fell to 981bs. n oz. So that before the first French Revolution it was 1 478)8., and after the last but one it was 985). 1 1 oz. And this is the criterion which those eminent persons, to whose opinions I before referred, have adopted, as to that being the richest and most comfortable nation which eats the most meat. Was, then, Paris richer and more comfort- able before it had its political rights, than after it had its second Revolution 1 According to this, it was poorer in the proportion of 98 to 1 47; and God knows what is its condition now. These are matters which it behoves the poor to think of, as well as the rich. This document suggests much matter for re- flection.' Observe how the continued peace following the restora- tion of the Bourbons kept the physical comforts of the people at a level from 1817 to 1827, and how the Revolution of 1830 immediately lowered them ; and, above all, do not fail to observe how the period of the lowest political rights was the period of the highest physical comforts among the poor. It shows, there- fore, that the one is not necessarily connected with the other. Do not, however, draw from it so erroneous a conclusion as that such rights are not of the greatest importance. The only truth to be inferred from it is, that physical comforts and in- ternal peace always go together. 'No doubt it may sometimes be desirable to obtain freedom even at the hazard of suffering. All I would urge upon my poorer friends is, that as this is so, it is expedient for them, before they disturb the peace for the sake of obtaining political rights, to sit down and first count the cost to themselves. They may lay their account with this, that it is certain if they disturb the general tranquillity, that they will be the poorer, and the worse off as to physical comforts ; and then let them consider whether the political grievances under which they labour are such as to make it worth while for 186 The Charge delivered at Chester, them, in the doubtful hope of redressing them by force, to undergo the certainty of immediate suffering. I believe that, speaking of the constitution of this country honestly and fairly, no rational man can hesitate as to the course which he ought in such a case to pursue, and that he will remain quiet, seeking to redress his grievances by constitutional means, and not by in- subordination, and the employment of physical force. But this restraint is to be derived from increased knowledge alone. That is the way in which we have ah'eady arrived at this conclusion. Now, this brings me to the second point which I intended to notice, which is, how to palliate or cure the evils which, I fear at too great length, 1 have thus described to you. I will not detain you long upon this point. It is too late, even if it were desirable (which it is not), to uneducate the poor. Our safety lies, on the contrary, in advancement, provided we advance in the right direction. We must fully educate them. We must teach them their duties to God and to their neighbours. As to their rights, we need not fear but that they will find them out from their present teachers. But how are we to do this ? Surely in the same way that a good father teaches his own children, First, by an uniform course of kind and affectionate conduct towards them, he con- vinces them that he really loves them : then, even when he corrects their errors, he does it firmly, but tenderly. He shows them that, while he hates the fault and punishes it, he loves the erring child, and even punishes him because he loves him. The influence which he thus obtains, he uses to induce them to listen to the dictates of his maturer wisdom and more exercised powers ; and they learn from his wisdom because they have first learnt to love him as a teacher. Just so must we do with the poor. The gentleman of estate, with his labourers the opulent manufacturer, with his workmen the tradesman, with his ap- prentices the clergy, in their more extended sphere, with their flocks in short, all of us, with our respective dependents, nmst make men feel that we sympathize with their sufferings and wish their real good ; that we seek not theirs, but them ; and that with us the name of brother is not a mere empty sound, but denotes in our vocabulary a member of Christ our Head, and a fellow-heir of immortality. Then, with what force will our exhortations fall upon their willing ears. Then, how easily may we convince those who have become well assured of our sincerity and love. Then, how easy will it be to demonstrate, and how December 6th, 1848. 187 willingly will the demonstration be received, that the accumu- lation of capital in the manufacturing districts is really a blessing to the public, by providing in the time of prosperity and abundance (like the corn of Joseph in Egypt) the sources out of which succeeding years of scarcity may be fed, so that all shall share in the ultimate benefit to be thereby derived to the capitalist. And how willingly, then, will men acknowledge that the large and extensive estates of our nobility and gentry are really a blessing, by being kept together, not for private luxury, but as enabling their possessors the better to promote agriculture, the more easily to establish schools, to build churches, and to civilize and improve the whole face of their surrounding districts. How easy, then, to show that the universal and compulsory sub- division of land, now unhappily existing in France, is a great and increasing cause of ruin and weakness to that afflicted country the more afflicted, because it seems unconscious of one of the real causes of its sufferings. Let me read the details, also, of that state of the law, because that is an alteration which is proposed by some to be introduced into this country viz., the compulsory subdivision of land. I do not doubt but that you are perfectly well aware that in France, instead of the law of primogeniture existing, every property is subdivided by law, whether the property be large or not, among all the children. Let us see what the effect of that is upon agriculture, and what is the evil that it introduces into the country itself I read from the same book as before : ' This imperative inorcellement was much arrested by the twenty-two years of war, up to the year 1815, which settled a mimber of co-heirs. One law gave a man a bit of land; another marched him off to the Tagus or the Danube, where perhaps he left his bones. But in 1815, by the peace, they were released from the army, and they entered France.' Then the writer goes on to describe the destruction of all the great properties which ensued upon the co-heirs coming in. ' Never, perhaps, since the creation of the world did the human race perpetrate a similar suicide. Sylla forced his 6000 prisoners to slaughter each other, but here all these destructions have been voluntary.' The writer then goes on to show the number of properties into which France is divided, which is enormous. ' Not,' he adds, ' eiiclosm-es of the same farm in juxtaposition to each other, but more like our lands, lying in common fields in England, perpetually intersected by those of their neighbours.' 188 Charge delivered at Chester, Dec. 6th, 1848. Then he goes on to show how property passed from one to another. ' More than one-fourth of the whole fee-simple of the country has passed in ten years from the hands of its owners into the hands of complete strangers.' Not, you see, remaining in the family, but going into the hands of complete strangers. Sales multiply owners, and so they go on. And yet the owners have managed to charge an income of 60 millions a year, with a debt bearing an interest of 22 millions. This debt increases, and must continue to do so. Avidity to possess land, the fancied independence it confers upon its owners, act upon the four and a quarter millions of owners Tinceasingly. These men, says Michelet, fight as it were for their lives, but usury fights against them with a force of four to one. Their land brings them in two per cent., and they pay eight per cent, for borrowed money. This is the account given to us by people who have been taking the statistics of France upon this subject ; and the evil is in- creasing, and will increase, till they have the wisdom to go back from the present system, and come to the same law, or nearly so, under which we at present live, and which people are proposing to change in this country. Hear what Mons. Louis Blanc says upon that subject. He is speaking upon this very point. He is comparing, also, the different conditions of the English and the French labourer, and describing at the same time the evils arising from this forced morcellement carried on in France. He says, at the close of his observations, 'These English weavers are very unhappy, because they can only obtain bread and work in a precarious manner. We will only observe, that there has been in all times far more inequality in France than in England in this respect. But' (and do not let us forget that this is the testimony of an eye- witness)' but we are ourselves an eye-witness that the Revo- lution has increased these inequalities tenfold.' The Revolution of which he speaks was the Revolution of 1830. Is it not sur- prising that the person who has written this, in his Histoire des Dix Ans, should have taken an active part in another and, I fear, more disastrous one in 1848 1 I will only add one word more upon this part of the subject. We have the winter befoi-e us. Distress at this season of the year is usually more prevalent than at any other time. I would urge upon you the opportunity which this will afford of showing sympathy and kindness, the greater in proportion as the emergency is the more urgent. This may, perhaps, be one Sentences of the Prisoners. 189 of the objects for which God sends suffering, that it may tend to re- unite those whom prosperity has severed. It is one of the uses of adversity that it calls forth the best feelings of the human heart ; so that, as has been well said by our poet 'The bud may have a bitter taste, But sweet will be the flower.' Gentlemen, a few observations will now remain upon the rest of the calendar. Here is one case of poisoning. This will be supported by a chain of circumstances which will require care- ful investigation. Those circumstances should be such as that the conclusion from them is, that the accused not only may be, but that, if true, he must be, guilty of the offence. That will be the criterion by which I should wish you to be guided. The rest of the calendar seems to require, to gentlemen of your experience, no observation from me. I shall, if there be any difficulty (which, however, I do not anticipate), be very happy to give you at all times my best assistance. Gentlemen, I have now finished what I have to say ; and I pray God that He may give you His help in the discharge of your important duties. SENTENCES OF THE PRISONERS. The fir at of these relates to a batch of prisoners who pleaded guilty to an indictment charging them with conspiracy and riot: the second to certain prisoners convicted of that offence after trial. YOUNG men, you. have heard what her Majesty's Attorney- General has now said. He has mentioned to me many topics which are very much in your favour. One of them, I cannot but observe, is remarkably in your favour, and that is your abhorrence of bloodshed. For when you heard of that dreadful murder which was committed at Ashton, which next week we shall have to try, you immediately dispersed : you would have nothing more to do with it you washed your hands of the blood of innocent people and you dispersed and went about your business. That was a very praiseworthy act on your part. It deserves much commendation, and shows me that, though 190 Sentences of the Prisoners. you are misguided, you are not so misguided but that you know- very well how to distinguish between what is right and what is wrong. I know that the people of your neighbourhood have been suffering great and severe distress, and I know and feel as much as I can do upon that subject. It is very much to be desired by us all that that distress should be mitigated and relieved. But, be you assured, I speak it in perfect good faith for your advice and assistance ; be you perfectly assured that nothing but evil can come of violence nothing but an increase of distress from insubordination. The universal histoi-y of man- kind tells us this, and when you are older for some of you I see ai - e only boys, children of seventeen and nineteen you will see it to be true. What can you know of political science? Why should not you suppose that older and wiser heads are governing the country, for your good and the good of all, better than you could do 1 Why should you suppose that children of seventeen, boys of nineteen, and young men of twenty, can know anything (ignorant as they must be from the situation of life in which they stand) of governing a kingdom 1 How can they know what would do themselves real good 1 If I were to walk into a shop, and were to see a large quantity of machinery around me, supposing me to be wholly ignorant of machinery, should not I be a very presumptuous man if I were to propose to alter the steam-engine, or to show you how the spinning-jenny could be made to work better ? You would laugh at me if I were to propose to you to alter a wheel which you knew was essential to the construction of the machine. If I were to propose to make that wheel twice as big, you would say it would throw the whole machine into confusion, and instead of having a machine which, though it does not act perfectly, yet works very well, we should have a machine which would not work at all ; and you would act as sensible men in laughing at me, and in turning me out from the machinery, if I proposed by force to put the wheel in as I wished. Now, just such a thing as that is what you are trying to do to the government of the country. There are wheels of govern- ment, and though they do not, as no human institution ever can, work perfectly, yet upon the whole the government is working for the general good of the whole mass of the people ; and if you were to put any new wheels in without fully con- sidering, as a skilful man would do, whether they would improve it, you would very likely throw out the whole machine of Sentences of the Prisoners. 191 government, instead of improving it. Be you assured that it requires a great deal of understanding, a good deal of thought, a good deal of wisdom, and a good deal of reading, to know what is for the good government of the people of this country. Do not let me be supposed by you, or by anybody else, as stating that anything is perfect. I know it is not. But this I know, that the good of you, and of all persons like you, is better obtained by your own quietness and industry, than by any other means. Be you assured that the people who teach you that alterations in the government would alter your con- dition materially for your good, are mere quacks. They are like people who bring forward a particular pill, which is to cure all diseases. It is their quack pill which cures all complaints ; and the foolish dupes who take it are very often killed instead of cured. And that is the case with you. You are brought into this difficulty by having trusted to quacks who come round the multitude, instead of to regular physicians, who would have told you that, though you do suffer, the only way to relieve your sufferings is for you to be quiet, for you to be industrious, for you to be sober, for you to be temperate, for you to be religious. That is the best way in which you can conduct yourselves. At the same time I must impress upon the people around you, who are better informed and in a higher condition of life I mean those who are your employers that it is their duty also to conduct themselves towards you as one Christian man should do to another to look after you to see how you are dealt with to see that you are properly instructed to the best of their power and ability and to mitigate the distress under which you labour. That is their duty the other is your duty. If both classes perform their duty all will be happier : they will be kind, and you will be contented. Now listen to my advice. It is given to you in perfect good faith. It is the best advice I can give you ; and from the longer experience of life which I have had than any of you some of you are younger than my children I give it to you as I would to my children ; and, remember, being here, it is your duty to take it. It is your duty to remember the mercy which has been shown you to-day, and to be loyal to that government, which, as it is strong, so also, in your particular instance, indeed has shown itself to be most eminently merciful. You may be each of you discharged upon entering into your own recognizances to be of good behaviour, and to keep the 192 Sentences of the Prisoners. peace towards all her Majesty's subjects for two years. Remem- ber, that if you misconduct yourselves, you will at all times be liable to be called up for punishment under the indictment to which you have now pleaded guilty. Pray attend to what I have said. It is meant for your good, and I hope you will not forget it. You have been convicted of various offences connected with the unhappy outrages which took place at Hyde, partly on the eighth and previous days ; the outbreak itself taking place on the fourteenth day of last August. One cannot but observe that there was a very considerable and simultaneous rising intended to take place over a great parb of the manufacturing districts at that time. The jury, however, in your case those of you I mean who were convicted of con- spiracy have taken the more merciful view ; that is to say, they have been of opinion that it was a conspiracy connected only with Hyde and its immediate neighbourhood, and that your object was to disturb the course of trade in that district, rather than to alter the state of the government of the United Kingdom at large. They have not found the same with respect to one of you, Mantle, for they have found him guilty of a larger conspiracy, and probably wisely, for if the speech made by him on the eighth of August had been given in its full length at the trial which took place yesterday, as it was at the trial which took place the day before, the jury would probably have thought, with the whole of that evidence before them (which, by the mercy of the Attorney-General, they had not), that the conspiracy was of the larger, rather than of the less aggravated description. I would wish to impress upon you all, that which I have also impressed upon a set of persons who have been just treated with the lenity of the Crown, that these disturbances produce exactlv the opposite effect to that which the unhappy dupes, -who com- pose the greater part of them, intend. They think, that by these disturbances they are to relieve themselves from distress. The real truth is, that these disturbances cause a great increase of the distress The distress perhaps originally causes them, but they cause an aggravation of the disti'ess, just as much as if you were to give a person in a fever a large dose of brandy by way of curing him. It would only increase the fever instead of relieving it. Sentences of the Prisoners. 193 At the time when you made this outbreak, there was a great disturbance almost throughout all Europe : and this country remaining at peace and in tranquillity (if it had pleased God that it should so have done) the capital of other countries which had been disturbed by the outbreaks there would have flowed hither, the capital so flowing in would have produced work, and the work so produced would have diminished the distress, and the general distress being diminished, yours would have been diminished also. But if you create outbreaks in this country, then you reduce capital to the same situation in this country in which it has been in others ; it has a tendency not to come here; so that your outbreaks cause the very distress, the very evil of which you complain. If you would leave it alone and be quiet, then the outbreaks in other countries, unhappy as they are for them, would not be unhappy for you, for you would have the benefit of your tranquillity, as they would suffer for their in- subordination. Instead of this you prevent the cure which God was working on your behalf. I am not the first to speak this to you. I have seen it very admirably put to some of the working people in London in one of the newspapers which was published a short time ago. It made a great impression upon my mind. I wish you could all of you have read it. It would probably have made some im- pression also upon you. The law of the country, however, must be vindicated. People who defy the law must find that they are breaking their hands against a rock, which is not to be broken by their puny violence. The law of the country goes on in its usual ordinary straight- forward course. The great bulk of the people obey it and love it, because they know it is just; and you yourselves shall know that if the law be severe it is also just in your case. I hope you have had a fair trial. I summed up each case individually and separately to the jury yesterday, perhaps at too great length, but it was in order that no one of you might suffer for the injury which had been done by any other person ; that each should stand upon his own footing, and suffer for his own deeds and those alone. The jury found, and they coxild not but find, that you were guilty of the offence with which you were charged. And what is that? It is an offence which might have issued in murder; which unhappily, in the neighbouring district to that in which you are situated, did issue in murder. It might have done so in one instance which caine before us yesterday, for one of your o 194 Sentences of the Prisoners. leaders put a pistol to a man's mouth, though the crime was prevented ; and I do not forget that, and I shall not forget it in the sentence which I am passing upon the man who prevented it, for I hope I do not forget any of those circumstances of mitigation which fairly arise out of any of your cases. I re- member now that he did prevent the man from doing violence upon that occasion, and he will find the benefit of it in the sen- tence which will be passed. But the law must be vindicated by severe punishment. Believe me, I regret very much that it falls to my duty to do this. I know that most of you are decent respectable people ; that you are not like the ordinary class of persons who come into a court of justice ; that you are not thieves, that you do not break through and steal ; that you are people who have good connexions, so to speak respectable people connected with you who will suffer by your suffering. Probably many of you have wives and children ; they will suffer in your suffering. I feel for them ; I feel for you. I am sorry it is my duty to inflict severe punishment upon you, but I must do it. The law must be vindicated, and people must be convinced that these are dangerous offences for them to commit. Therefore, you must all of you, I am sorry to say, suffer severe punishment. The remainder of the sentence relates wholly to the individual cases. FOR THE Abolition of % A portion of the Charge delivered to the Grand Jury at Hertford, at the Spring Assize of 1854. BEFORE I conclude these observations, I wish to call your attention to a matter of some interest to you all. You are aware, no doubt, that the Government of this country are, with the most laudable motives, proposing to alter in a very im- portant manner the Laws as to the Settlement and the Relief of the Poor. Now, such an object it is the duty of every good subject to assist, and to strive to make the mode of accomplish- ing it as perfect as possible. As I don't altogether agree if I understand it aright in the plan proposed, I wish to state to you my reasons, and lo call the matter to your notice. It is only by calm and careful, but candid discussion, that we can hope to arrive at the truth, which we all desire to do. Now, as I read the plan, the Government propose to abolish the Law of Removal, but not the Law of Settlement. It is difficult to understand what this means. I conceive that' there must be some error in this matter. The right to relief, they truly say, depends not on settlement but on destitution. But the right to relief from the parish A (or the union A, if union settlements are adopted), so long as destitution lasts, depends on the settlement being in A. If the settlement bo in B, the only mode of compelling B to relieve is by means of the removal of the pauper from A to B. If, then, you simply abolish removals, you practically transfer the pauper from B to A ; in other words, you really, although indirectly, abolish the Law of Set- O 2 196 Observations on the Ministerial Bill for the tlement also, which you say you mean to retain. But ought this to be done if the admitted evil attending removals can be otherwise remedied 1 The use of the Law of Settlement is to distribute by some fixed rule the whole expense of the relief of the poor amongst the whole body of the ratepayers rateably and fairly. No doubt, a national rate would effectually do this. But how can it be possible, in the perpetually fluctuating value of property in this great country, to assess equitably any such rate on the whole kingdom 1 How unequal the land-tax a rate assessed on only one species of property, and t\\sA faced property has in the lapse of years become ! The thing is impossible to be done prac- tically, unless at a ruinous expense, and by continual valuation. But if possible, it would not be desirable. There are other fatal objections to it. To draw on a national fund by local agents for local purposes would enormously increase the whole amount of the burden. We have already greatly increased the expense of criminal prosecutions, by transferring them from the County- rate to the Consolidated Fund. And yet counties did not ever afford, as to their rates, half the economical checks which the local supervision of parishes does to the poor-rate. To transfer the relief of the poor to a national rate, would be to remove the check of parochial care and economy, and to exaggerate the tendency towards parochial patronage and jobbing. If, then, a national rate cannot succeed, we must devise some other mode of rateable distribution of the whole burden, and one which is not inconsistent with local supervision. And such a rule the Law of Settlement, if simplified and amended, seems to afford us ; for then each district is charged with its settled poor, and has a direct interest in their welfare and prosperity for it has to pay for their destitution. And then, too, its limited area affords the opportunity for effective care and superintendence. But this Law of Settlement has its attendant evils also : 1st, there is the hardship arising from removals to the poor themselves a hardship, I think, intolerable, and happily, I trust, unnecessary ; 2nd, there is a system of fraudulent jockey- ing of one parish by another, by pulling down cottages and the like, in order to shift the burden unfairly from themselves to their neighbours ; and srdly, there is the expensive litigation between parishes disputing their liability to the burden. Can we, then, remove these evils, or greatly diminish them, still, however, retaining the main objects of the Law of Settlement Abolition of the Removal of the Poor. 197 the equal and just distribution of the relief of the poor over the whole country 1 I think we can. First, then, I would agree with Mr. Baines in abolishing re- movals altogether ; but secondly, after thus providing that the destitution of each pauper shall be relieved by the parish in which he resides, I would provide that this expense should be repaid by the parish to which the pauper belongs. And in order to cure the second and third evils above pointed out, and to give an easy method of obtaining this ^payment, I would abolish all the present methods of obtaining or deriving a settle- ment, and provide that the original place of birth shall finally and unchangeably be the settlement of every emancipated person.* The jockeyings before spoken of are principally I do not say universally resorted to for the purpose of preventing the acquisition of new settlements. You materially take away the motives for this by making new settlements impossible, and the proof of the new birthplace settlement will be easy. The register will prove the place of birth ; the remaining fact alone is the identity ; and the pauper is, by the hypothesis, always alive to prove it. As to families unemancipated, children must follow, during the life of both their parents, the settlement of their father ; if he be dead, of their mother ; the wife, of her husband. Only one fact the birthplace of the living head of the family determines the settlement in these cases also. The mode of determination, in case of dispute between parishes or unions as to repayment, may be the decision of the Poor-law Inspector of the relieving parish or union, on affidavit submitted to him by both sides. This order should fix the liability and the amount to be repaid. I venture to think that there will be little, and at all events no expensive litigation, if this plan be adopted ; and that the hardship of removals will be put an end to the unseemly jockeyings to prevent settle- ments diminished materially, and yet( the local supervision and economy, and the stimulus to promote the welfare and prospe- rity of the labourer, which the present law of settlement does in a great degree promote, retained to the advantage both of the labourer and the country. It may be objected to this scheme, that it has been already in some sort tried and has failed for I dare say you all know that there was formerly an Act of Parliament (8th and pth Wm. III., c. 30) which enabled parishes to grant certificates of * See a qualification to this, p. 194. 198 Observations on the Ministerial Bill for the settlement of a pauper and his family, and so to enable the poor to migrate without being liable to removals ; thereby, however, rendering the certifying parish responsible, as I propose, to the relieving parish. But why did this fail ? Because the general power of removal continued, and the parish was therefore not compelled to relieve, but might remove the pauper ; and, secondly, because the parishes would not certify generally preferring to take the chance of the pauper acquiring a new settlement ; and the giving such certificate was left in their option. I leave nothing in their option. I propose to make a new settlement impossible, and to abolish altogether removals. This is my answer to this objection. It is to be observed, also, that this plan will work equally with union settlements (Mr. Baines' plan) as with parish settle- ments. But I much prefer parish settlements to union settle- ments. They give a better opportunity for supervision, and a greater premium to those benevolent and, as I think, wise per- sons, who strive to lead their poorer friends and neighbours to prudent habits of life, and that independence and self-reliance which, in a well-regulated state, ought to be the normal condi- tion of its labouring population. And if I mistake not, the institution of union settlements will cause a most enormous expense, by requiring a new valuation throughout the country; as I believe though you, no doubt, know better than I do that the rating in the different parishes is not universally on the same principle. The union rate will, in fact, be the same thing in each union as a county rate is in a county, where each parish is to be valued in relation to the other parishes as well as each estate in each parish is valued in relation to the other estates. And besides, one great object in abolishing re- movals is to set free the agricultural labourer to go to a distance far beyond the union, that he may take his labour to the highest market, whether that be of an agricultural, com- mercial, or manufacturing description. * [There are two other subjects connected with this matter on which I wish to add a few observations. 1st. It seems to me that it may assist in solving the difficulty as to Irish pauper immigrants into this country if we make their irre- movability depend on their producing a certificate of their place of birth, from the overseers or other officers of the union to * This has been added since the ChaT-ge was delivered. Abolition of the Removal of the Poor. 199 which they belong in Ireland and those authorities should be required by law to grant such certificate at the request of the labourer desiring to migrate into England. That being done, the parish in England by which such pauper may afterwards be relieved, should have the amount repaid by the certifying Irish union in the same way as between English parishes, or, as the case may be, between English unions, if that mode of settlement be adopted. This I conceive would effectually prevent the shoals of Irish paupers being sent over, as it has been said in some cases, by the connivance and assistance of Irish ratepayers. But, secondly, I would add also a suggestion, as to the proper mode of dealing with close parishes. In cases where that fact is made out, the old method of rating in aid may be resorted to. The parish which, by pulling down cottages and the like, seeks to throw the residence of its labourers into other adjoining parishes, should be rated in aid to the parish relieving, for the support of its non-resident labourers and their families and the children of all such non-resident labourers should be deemed by law to be born, and therefore finally settled, in the parish where the parent is working at the time of their birth, and registered accordingly. And this I think would cure that evil, by removing the temptation.] I recommend these suggestions, gentlemen of the Grand Jury, to your calm and earnest thought. I have long been of opinion that no one has a right to find fault with the plans of another, unless he is prepared to suggest a better himself. If, therefore, I disagree from the plan of Mr. Baines, I do so for the above reasons, and produce what I judge to be a better scheme. I, long before his time, had for nearly twenty years the same personal acquaintance as he had with the Settlement Law, learnt in the school of the same West Riding sessions, whence his experience comes. I mention this, to excuse myself for giving my thoughts on this subject to you. But I should say to you and to all who may consider this very important ques- tion ' Don't act on any one's authority, ' but prove all things' (as St. Paul advises us in even higher matters than these), and ' hold fast to that which is good.' ' If your thoughtful and experienced minds can find any better plan than either that of Mr. Baines or mine, it will give me far more real satisfaction than any adoption of my own views could give me. ON THE REFORM OF YOUTHFUL CRIMINALS BY MEANS OF REFORMATORY SCHOOLS, Under ij and 18 Viet. c. 86, BEING PABT OF THE Ctonre fa tie drrnib Jto of ttefesfe, o 2 o ^ *> Co u AT THE WINTER ASSIZE, i854. AND now permit me, in conclusion, to advert to a topic which does not seem out of place on an occasion in which we are called together at what used to be in this county, when I first knew it, an unusual period of the year for the purpose of administer- ing the criminal law. We have in that period over which my experience extends the interval between 1811 and 1854 a great and apparently permanent increase of crime. Whence does it arise ? How is it to be diminished ? These are ques- tions of no light moment to us all. It is not my intention to discuss the former of these questions, to which I am really at a loss to give any sufficient answer ; there being in truth various causes probably conducing to pro- duce this sad result. I would rather desire to direct your thoughts to the second, which is one (to me, at least,) of far greater interest. How is this increase of crime to be met, and, if possible, repressed ? To this question, if you ask it, you always receive one answer, ' By improving the education of the people.' True enough, no doubt, but labouring under one difficulty, that this usual cantilena leaves us in general no wiser than we were before. For the real question is, What is that education which is to produce this effect ? You will remember that we are speaking of that class of our population alone out of which our criminals come. This consists of individuals of as various characters and dispositions as possible. Now, to educate some of these pro- On the Reform of Youthful Criminals. 201 perly, would be to apply a process which would be useless perhaps worse than useless to others. Our punishments ought, no doubt, to be directed towards this object of reformation : but how far are we at present from any scientific discrimination in our punishments ! We do but administer, so to speak, stronger or weaker doses of one and the same specific. Six weeks' hard labour ; three months' hard labour ; nine months, and the like. But what is all this, except to imitate the quack, who, for each varying disease (say fever, gout, paralysis, or the like), says, ' Take my medicine, five pills for the first, ten for the second, and so on.' We laugh in scorn at such folly ; but are we wiser ourselves ? It may, however, be said and I admit the value of the answer, and with some additions to it, would admit its com- plete truth that the discipline of each gaol may supply the variety of medicine adapted to each individual case. A judicious Governor a humane and intelligent Chaplain may supply what is wanted. And so they may : but then in practice and I wish to call your attention to it there is this difficulty : we do not suffer these judicious and kind men to have sufficient time effectively to do this. Crime, believe me, is a disease, a chronic disease, in most of our criminals. Some eminent physi- ologists in modern times have even connected it with a defective organism of the brain. Without discussing this, which might lead me into doubtful disputations on the connexion of mind with the organism of the body, and remembering that those who hold this do, God be praised, also hold that moral training and religious influences do also react on and materially affect even the bodily organs, I shall simply call your attention to the practical result, that if this be so, and if crime partakes in some sort of the character of a disease, you nmst carefully examine in detail its symptoms, and give full time for the remedies, if they are to be effectual, to operate. And this brings me to the observation, that to punish with short terms of imprisonment young or first offenders, is by no means a wise or a humane proceeding. Then only I fear that must be admitted is the chance of reclaiming them. Will you let me call your attention to the facts detailed in the book before me Combe on Criminal Law, p. 22 ] The author of that very striking and intelligent work says this : ' In 1825, the late Mr. William Brebner, Governor of Glasgow Bridewell, framed a table, founded on an average of ten years' experience, to show the effects of first sentences for 202 On the Reform of Youthful Criminals different periods of confinement, of which the following is a copy : Of Prisoners sentenced for the first time to 14 days' confinement, there returned to gaol for new crimes, about . . . 75 per cent. 30 days 60 40 days 50 60 days ... 40 3 months . ' . ' . 25 6 months . . . . 10 9 months . . 7^ 12 months . .' . 4 18 months ... i 24 months . .. ' . None But this last was not for want of cases, for ' During the ten years (which ended on the 25th December, 1825), 93 persons were committed for the first time for two years, of whom not one returned. Mr. Brebner did not assume that all who did not return to his prison were permanently reformed for they might have left the district and committed crimes else- where but he adds, that when prisoners came back two or three times, they went on returning at intervals for years ; and that many of t/tose who were committed for short periods for first offences, were subsequently transported or hanged. In that prison strict discipline was maintained, but the prisoners were trained to industry, and educated with something like a paternal regard to their welfare after liberation ; and he ascribed the salutary effects of the prolonged confinement partly to dread of renewed punishment, and partly to the habits of order and application acquired in gaol.' I have read this passage, as it affords materials for serious thought. You will observe that the increase of the severity of punishment for the fir*t offence, is invariably followed by a less per centage of recommittals. You will observe also the startling consequence, that after coming back two or three times, they returned, at intervals, for years ; and that many who received small punishments at first, ended with capital convic- tions. Do not, therefore, I beseech you, try at your sessions to gain a character for that spiarious humanity, which is real cruelty, by neglecting to punish effectually at a time when the impression on the criminal, if ever, may be really made. But severity in an extended duration of imprisonment, though essen- tial, is but one step, and a bad one, if not accompanied by proper discipline afterwards. What should this be 1 And first by means of Reformatory Schools. 203 let me speak of the youthful part of the criminal population. I read from a Report as to the Redhill establishment a farm of 130 acres, devoted to this object (Combe, 77 79.) The passage is as follows ; it is taken from one of the returns made to the Government : ' Two main objects,' says Mr. Tufnell, ' were contemplated by the removal of the institution from London to the farm at Redhill. First, it was thought that agricultural work afforded more likely means for the reformation of habits, and for im- planting an industrial character, than manufacturing occupations, in which children must necessarily be massed together in con- siderable numbers. Secondly and this was by far the most important part of the scheme it was intended, instead of keeping them in one large undivided establishment, to separate them into distinct families or households, each under one head, who should be responsible for all the members of the family. It was thought that more individual superintendence, and more kindly domestic influence, might thus be substituted for the ordinary mechanical and formal discipline that necessarily pre- vails when large numbers are congregated together. 'The boys who compose the school, 178 in number at the date of my visit, may be divided into three classes. First, there is the voluntary class, who come entirely of their own free will, consisting of youths tired of a life of vice and crime, and wishing to reform. Secondly, there is the compulsory class, being boys who have been sentenced to transportation, and have received a pardon, conditional on their submitting to the regulations of this establishment. Thirdly, there is a class sent by their parents or immediate relatives for reformation, and who may be said to be compulsorily detained, so far as the parental control may be considered compulsory.* Every youth received is criminal, and has been convicted, except a few received as children of convicted parents ; and in two or three instances boys have been admitted simply to save them from the con- sequences of a course of criminality to which they had become addicted. ' The inmates ai - e divided into four separate households, which are in a great measure kept distinct, each under a Super- intendent, responsible only to the resident Chaplain, who is supreme Director of the Institution, subject, of course, to the * For this latter class, a payment usually 5*. per week is asked ; but in case of poor parents much less is taken. 204 On the Reform of Youthful Criminals Committee, who meet every fortnight. Two of these house- holds consist of fifty each ; one embraces sixty of the older lads, and the fourth contains twenty lads employed in the stable, cow-house, and farm-yard, who are changed for others at the beginning of each month. The class of sixty is considered too large, and it is intended to diminish it, and to add to the farm- yard class of twenty. As it is considered that the chief cause of the past offences and immorality of the inmates is the want of steady habits of industry, by far the greater portion of their time is devoted to hard work, in which they are generally engaged from nine to ten hours daily. Each lad receives for his labour a payment, varying from id. to 3irov SdvoTfpov TreXc TOVTO KOI TToXlOV TTtpClV TTOVTOV irep>v iin 6f>v re rav vnfprarav Tdv afpdiTov aKajjiarav atrorpveTai lX\o/J.fV(i>v dp6rpa>v eros fls eras 'nnrfi- wytvci Tro\eva>v. Kov(f>ov6(av Tf (pvXov opvidcov dp,(pi^a\a>v ayti Kai 6r)p>v dypiatv f6vr], TTOVTOV T flvaXiav fi df p.r)xavais aypavXov Grjpbs opfa-trifiaTa, XacrtatJ^ei/a 6* iinrov aerat dp(piXo(pov vyov ovpfi- ov T ' dufjirfra ravpov. KOI (pBeypM KOI dvffiofv v irdya>v aWpia KOI diHTOfippa (pfvyeiv /3e'Xr; iravTOiropos' aTropos eV' ovdfv e/r^erat v. *Ai8a fiovov OVK firdt-fTai' vav 8 ' dprjxdvatv v T' evopKov diKav vtyir (J) TO fJ.f] Ka P,TJT' efjLol 7rapev os raS' ep8fi. Translations. 251 IP all creation's works we scan, There's nought so wonderful as man. O'er the dark ocean's foaming tides, Fearless his little bark he guides ; Nor ever doubts, all dangers past, To find the port he seeks at last. The earth, benignant goddess, feels His labouring plough's revolving wheels, As aided by the horse and steer, His toil proceeds from year to year. 'Tis his with subtle springe to snare The winged inhabitants of air j The stag reluctant in the toil, Becomes the A r igorous hunter's spoil ; In meshy folds the finny prey, Struggling in vain, confess his sway; Armed with the spear, he seeks the bear, And tracks the lion to his lair ; The warrior-horse, at his behest, Abates the terror of his crest ; By art the stubborn mule he broke, And bowed the bull beneath the yoke. To man, too, by indulgent heaven, The power of winged words was given ; Immortal reason's strength assigned, Wide-stretching thought and lofty mind. To him the social laws belong That awe the bad, and curb the strong, Uphold the weaker, banish strife, And guard the paths of civil life. To shield him from the inclement air, His hands the stately house prepare : There, safely sheltered, he defies Descending rains and wintry skies. Conqueror of all, by none surpassed, To death alone he yields at last : Yet oft, with medicine's healing power, Procrastinates the fatal hour. 253 Translations. SOPH. ANTIGONE. pas os ev os fv fiaXaKais iraptiais vedviSos ev oiTqs 8' VTTfpTrovTtos fv T' dypovop,ois avXats' KOI o~' our' ddavaTtdv (f)vifios ov8f\s ovd* afj.fpia>v ITT ' dv&pdtTrcov' 6 8 ' ex&v pffJiTjvfv' (TV Kal 8iKa[v {vvaifj.ov e%eis rapd^as' VIKO. S' evapyrjs fSXefpdpcov Ipepos evXenrpov afia\os yap ffjoraiet 6fbs ' Translations. 253 "With all these varied powers endued, He's prone to evil as to good. Sometimes he seeks the patriot's fame, And grateful cities bless his name ; Sometimes an exile doomed to roam, By guilty daring driv'n from home. O may the righteous gods forfend That such may be my guest or friend ! Lest, when around me lightnings fly, And thunders threaten judgment nigh, Enveloped in his fate I fall, And one quick vengeance swallow all. (Imitated from the Greek.) OH ! thou that dwell'st beyond the sky, That nestlest in the virgin's eye, That on the maiden's downy cheek Dost thine inviting pillow seek, Hail ! hail ! thou king of gods above, Mighty, unconquerable Love. Thine is the slow consuming flame That feels the pang it dare not name ; Thine is the long, long breathed sigh, The flushing cheek, the downcast eye, The pulse that now can scarcely beat, Now rages with excessive heat. Such was the flame that could inspire The mistress of the Lesbian lyre, From high Leucate's craggy steep, Headlong to plunge beneath the deep ; Ah ! cruel god, thy powerful hand, What mortal yet could e'er withstand. Yet fairer prospects thou canst show, The fairest prospects here below : Thine is each sweet domestic scene, The tranquil look, the joy serene, The happiness, the zest of life, The soft, endearing name of wife. 254 Translations. FRAGMENT. ore \dpvaKi fv 8ae8aXa avepos 7SVf(i>v K.ivrjQd.a'd re \ifJiva epnrfv OUT ' ddidiroicrt irapfiais Uepael /3aX Tfis, ya\a6r]vv Tropfpvpeq Kfifjievos ev %\dvi8i Trpocranrov K.a\6v, fl de TOI deivov TO ye dfwov r\v Kat Kfv ep.S)v \fTTTOV VTTf1x fs tv8e ev8(Ta> afifrpov KO.KOV' /iaTato^ovXi'a 8e ns Ztv irdrep K (re'o. Translations. 255 And when distress and dangers fright, And change those prospects once so bright ; When sickness, or when sorrows come, And life just trembles o'er the tomb Thine is the noblest prospect given, Of union in a brighter heaven. WHEX all around the frail-built skiff, The howling tempest blew, Round Perseus' neck, her infant child, Her arms the mother threw. And oh ! she said, my child, what pangs This bursting heart torment ; Yet, sweet, thou sleep'st, and hearest not Thy mother's sad lament. Sweetly thou slumberest, my babe, E'en in this wretched place, Thou heedest not the dashing spray That wets thy tender face : Thou heedest not the rushing wind That round thee blows so keen : Thou heedest not the dismal night, When not a star is seen. Wrapt in thy purple robe, thou liest Sleep on, my only joy, And sleep ye winds, and sleep ye cares, That this sad breast annoy. Save, Father Jove, thy son, whom now This raging tempest braves, And send some messenger from heaven To calm the troubled waves. 266 Translations. ANACREON. Xe'you(rii> at yvvaiicfs 'Avaxpecov yepo>v fC Xa/3a>i> e(TOTTTpov, adpei Kopas p.tv OVK er ' ovcras eya> 8e ras Kop.as fJ-ev e\T ' elo'iv, (IT aTrri\0ov OVK 0180.' TOVTO 8 ' oiSa TTpeTret TU repirva Trat^fti Ta poipas. Translations. 257 I'M often by the women told, ' Anacreon, you're growing old ; ' Conie, take a glass, yourself survey, ' Those hairs, the few still left, are grey ; ' Look at the wrinkles in your face, ' Your figure, too, has lost its grace.' Now, truly, whether this be so, I neither know, nor care to know ; But this I know, and will maintain, That if but few short years remain, If life so soon must take its flight, And I must bid the world good night, 'Tis time to catch each passing hour, To cull the sweets from every flower, And try, by frolic and by fun, To live at least ten years in one. A REPLY TO THE ABOVE. ANACREON, my jolly friend, And is this all 1 Is this your end ? I think I know a wiser plan, More suitable than yours to man. The good man culls the flowers that grow Within God's Paradise below, Not those whose fair and tempting fruit Is grafted on a bitter root. As age creeps on, and strength decays, Higher he sounds the Hymn of Praise ; With thoughts subdued and heart refined, He seeks the good of all mankind : Though still around, without, within, There dwells a load of conscious sin, He knows a Friend whose tender care For him that heavy load will bear ; To whom, when fiercest tempests roll, Secure he trusts his weary soul. Thus, chastened by the fire of love, He walks on earth, but dwells above. You live ten years in one but he In one thus gains Eternity, s 258 Translations. From the Same. At Mouom Tov"Epa>ra 8rjcracrai crre r<5 KtiXXet rrapfft Kal vvv f) Kvdfpeia fjjrei \vrpa (pepovcra \iicracrdai TOV "Epcora, Kav Xvcn? Se risavrov, OVK e^eicrt fifve I 8e" FROM THE ANTHOLOGY. i. ffjorai croi 'PoSoxXeia rdSe o-re(pos avdecri eort Kpivov poBerj re /caXv^ vorfpr) r ' dvep.u>vr}, Kal vapKKTcros vypos Kal Kvavavyes lov. ravra os. II. raS ' VTTO ras TrXaravov? arraXw Tfrpvptvos virvc* 8 ' d\\7)\r]a'i } ri [JLfXXofj.fv ; aWe trjSe'cro'a/iei', enrov, 6/xoO Trup Kpaftirjs p.(poira)v Xa/i7ras 8' ws e<^)Xf|e xai {/Sara, 6epfj.6v fKfWev III. rai/ oXoai> MijSai or' eypa(pe faXw /cat TfKvois dvrip.f6f\KOiJ.fvav, fivpiov aparo pLo^dou a> rjQfa Stcrcra wv ro /^ev eis opyav veve, TO 8 ' ei Translations. 259 THE Muses, with flowers, Young Love having tied, Placed him, bound in the bowers, Queen Beauty beside. Cytherea, lamenting, Brought gifts rich and rare, That Beauty, relenting, Might give up her heir. But the young rogue, delighted, With Beauty remains ; Even freedom is slighted He's proud of his chains. L TAKE, Rodoclea, take this flowery band, Twined in a chaplet by thy lover's hand : See the proud lily with the blushing rose, And bright anemone, their lines disclose : Here soft Narcissus sheds a golden hue, Mixed with the violet's deepest, tenderest blue : Yet crowned with these, boast not thyself, sweet maid, For thou, like them, art born to bloom and fade. II. Young Love lay sleeping by a fountain's side ; Close lay his torch. The nymphs, collecting, cried, ' Let's quench that torment. Oh ! how blest, if then Drowned with that flame were all the pangs of men.' Alas, poor nymphs, the torch, with magic power, Unquenched, has fired the waters. From that hour The love-sick fountain pours a boiling stream, And bubbles upward in a jet of steam. HI. Here dead Medea, from the sculptor's hands, Distracted with contending passions, stands. Well hath the mighty master both expressed, That fired by turns the mother's jealous breast 8 2 260 Translations. au(pa> 8 ' f7r\T)pa>(rev opa TVTTOV. ev yap O 8aKpvov (V 8 eXftp ffv/jios dvatrrpecpfTai. dpKfl 8 ' & peXXijcris, ffpa crov oXoai cr^iy^^ewa Spa/conrt ddprjcras 8fi\rj ro^ov enafj^re x f P >i ' 6rjpos 8 ' OVK. d(pdp.a.pTe, 8ia crrd/iaros yap oiVro fj'i^fv rvrdov jSatoi/ virtpdf /3pf(povs. Trava'dfJ.fvos 8e (frovoio irapa 8pvt Trj8f (papfrpijv Kal V. etapos rjvdei. p.ev TO jrplv p68a, vvv 8' evi p.ecrcrm %eip.aTi Trop(pvpeas ea-xdcra/jLev Ka\VKas } 2^ fTripfiftrjaavTa yeveffXifj ao-p-eva Trj8f TJOI, wp,v da-crordTr] Xe^eoov' 7)s 6(pdfjvat. eVi KpoTa(poi'iov VI. vi(pf(Tcri Trawop.va rias opvis TCKVOIS fvvaias ap,(pexee TTTepvyas' a p,tv ovpaviov Kpvos aAecrei'" fj yap efie aldepos ovpaviatv avrliraXos ve(pa>i>. KOI M.T]8fia KUT ' "Ai'Sos aiSe'c pvidtov epya VII. ov're p68ov (rre(pdva>v ovre \i6o[Br)TO)V Trorvta fjidpyapa v XoydScoj' iro\\6v dfpavporepTjv. p^etXea 8e 8po(r6fvra Kal 17 fj.f\i(pvpTos fKeivrf fjdfos apfj.ovir) Keo-ros f'pv Tla(piT}s' TOVTOIS Trdcriv eyu> KaTa8dp,vafj,ai.' ofifiacri fiovvois 6eXyop.ai, ols eXirls /^etXt^os eVSidet. Translations. 261 Revenge and Love behold that threatening tear That trembles in her eye. See anger here Struggling with pity, whilst the marble still Seems doubting. Here must end thy wondrous skill, Timomachus ; Medea's hand may give Her babes to death, but thine must bid them live. IV. When father Alcon saw his darling child Enfolded by a snake, with terror wild He snatched his bow the whizzing arrow flew Right through the monster's jaws, and yet so true, That though it grazed his head, it missed the boy. Here, on this spreading oak he hung the bow, His happy luck and happy hit to show. v. We are roses, the flourishing children of spring, Yet in the midwinter our buds we unfold : For the birthday of Beauty a garland we bring, And are proud in her service to wither with cold. For 'tis better on such a sweet brow to appear, Than to wait for the sunshine and bloom of next year. VI. By heavy snow and cruel frost oppressed, The mother perished on her humble nest : Still o'er her brood her covering wings she spread, Till stiffening, she herself, poor bird, lay dead. Medea, Procne, this example see, And blush to learn what mothers ought to be. VII. The rose needs no perfume, then why desire, Sweet, for thyself, rich gauds or silk attire ; The whitest pearl can't with thy skin compare, And gold might borrow splendour from thy hair. Each sparkling gem that India's shore supplies . Might well exchange its brightness for thine eyes. Those pouting rosy lips, that graceful mien, Win like the cestus of th' Idalian queen. Such wondrous charms would drive me to despair, But that those soft relenting looks are there. 262 Translations. SONG. (GRAY.) THYRSIS, when we parted, swore In the spring he would return : Ah ! what means yon violet flower, And the bud that decks the thorn : 'Twas the lark that upward sprung ! 'Twas the nightingale that sung ! Idle notes ! untimely green ! Why this unavailing haste ? Western gales and skies serene Speak not always winter past ; Cease my doubts, my fears to move, Spare the honour of my love. CUPID and my Campaspe play'd At cardes for kisses ; Cupid paid : He stakes his quiver, bow, and arrows, His mother's dove and teame of sparrows ; Loses them too ; then down he throws The coral of his lippe, the rose Growing on's cheek (but none knows how), With these the crystal of his browe, And then the dimple of his chinne, All these did my Campaspe winne : At last he set her both his eyes : She won, and Cupid blind did rise. O Love ! has she done this to thee ? What shall, alas ! become of mee 1 FROM WORDSWORTH. SHE dwelt among the untrodden ways Beside the springs of Dove ; A maid whom there were none to praise, And very few to love ; Translations. 263 JUEAVIT Thyrsis jam discessurus, amicae Adfore se reditu veris, ut ante, domi. Eheu ! jam fulgent violas, jam spina tumescit ; Altisonum ccelo fundit Alauda melos. Per nemus assuetos renovat Philomela dolores, ' "Ver redit' exclamant omnia Thyrsis abest. Raucisoni cantus nimis importuna puellse Temperies ! cur vos sic properasse juvat 1 Non semper monstrant imbres, non aura Favoni Elapsos hy ernes praeteritumque gelu. Phoebe, retro propera, versseque recurrite menses, Integer ut saltern restet amantis honor. LATINS. LUSERUNT Amor et Nesera nostra Par impar dubiaque sorle prirnb Contra basia ponit hie pharetram, Arcum, tela, malaque victus arte, Discedit gracilesque turn columbas Dilectas Veneri, novumque currum Tractum passeribus labella rubra Corali minium semulata frontem Crystallo nitidum rosas genarum (Quis unquam dedit has tibi, Cupido ?) Amittit furiosus et venusti Menti mollitiem. Duos ocellos Tandem ponit, et hos proterva Nympha Bidens abstulit. Ille cascus errat. Quod si fecerit hsec tibi Cupido, Quse spes nunc misero mihi relicta est? SEMOT! latuit cavaque valle, Qua Dov39 gracilis susurrat unda, Virgo, nee variis procis petita, Nee laudata levique nota vulgo. 264 Translations. A violet by a mossy stone, Half-hidden from the eye ! Fair as a star, when only one Is shining in the sky. She lived unknown, and few could tell When Lucy ceased to be : But she is in her grave, and oh ! The difference to me ! Translations. 265 Sic densa viola abditaque sylva Floret semisepulta sic tenebras Inter stella micat, novamque Nocti Addit, sola, decus. Tuum sepulclirum Nescit, Lucia, turba, nescit horam Mortis, cara, tuse : sed heu doloris Quanti restat onus mini relicto. Inscription for a Drinking-cup made from an old Mulberry-tree growing in a Schoolyard, and presented to an ancient scholar of the school. ME cujus patula prius sub umbra Lusisti, puer inscius futuri, Oppressam senio procella fregit, Nunc mira faber arte fecit auro, Splendentem calicem, merique odora En laeti tibi sum ministra Bacchi. At tu, si sapias, memor vetustse Mori, carpe diem brevique vita Spem longam reseces ; tibi mihique Eheu ! non revocanda fugit setas. APPENDIX I. Of the following Judgments, the first is here appended as interesting from the political question to which it relates. The two others which follow have been indicated by dis- tinguished authority as exhibiting Baron Alderson, the former in the capacity of a Common Law Judge, the latter in an important case in Equity. JUDGMENT No. i. MILLEK v. SALOMONS. MY Brother Martin has fully stated the pleadings and the find- ings of the jury in this case, and it is not necessary, therefore, that I should repeat them. On several points in this case there is no difference of opinion on the Bench. We all agree in thinking that, of the four points made by Sir Fitzroy Kelly, three at all events cannot be supported. The only point on which we entertained any doubt, and on which I regret to find we are not now agreed, is whether, in taking the oath of abjuration, Mr. Salomons, the present defendant, was bound to have added the words " upon the true faith of a Christian" to those which he did consent to utter and attest by his oath ; or whether, by designedly and of purpose omitting those words, he is in fact to be deemed not to have taken that oath at all, and so to have incurred the penalties contained in the iyth section of the i Geo. I. st. 2, c. 13. It is on this point alone, therefore, that I shall deliver my judgment ; and I am obliged to say that I differ with my learned brother in his view of the case, and have come to a clear opinion that the plaintiff is entitled to our judgment. The real question is, whether these words are a part, and an essential part, of this oath, and are to be used by all who are required to take it, unless they have some special privilege for omitting them ex- pressly given by the Legislature. I take the principles on which our decision is to rest to be quite undisputed. Where an oath is to be taken in order to establish affirmatively or negatively any proposition 268 Judgment. by a witness, I agree that Omichund v. Barker* has settled that it ought to be taken in that form, and upon that sanction, which most effectually binds the conscience of the party swearing. Thus, a Jew is to be sworn on the Book of the Law, and with his head covered ; a Brahmin by the mode prescribed by his peculiar faith ; a Chinese by his special ceremonies, and the like. But it is also clear, and expressly admitted by Lord Chief Justice Willes in his judgment, referring to Lord Coke's authority on the subject, that in the case of oaths of office or of qualification, where the very form of the oath as well as the oath itself is prescribed by the Legislature, there the directions of the Legislature must be literally followed ; and the oath must, and can only lawfully, be taken in the prescribed form, until that form be altered by the same authority which appointed it. The question therefore here is, have the Legislature required the oath of abjuration to be taken in a prescribed form, and are the words " upon the true faith of a Christian" a part of that prescribed form ? Now, it is to be observed, and it is of the greatest import- ance to advert to this, that the Legislature uniformly speak of "the oath of abjuration" where they require it to be taken : they do not use the indefinite article, but the definite one. The inference is inevitable, that they contemplate the allowance of but one oath of abjuration, in one form, to be used by all persons required to take that oath. Whatever form of oath therefore was required to be taken by the Roman Catholic, the same form was to be adopted by the Protestant, whether churchman or dissenter ; and the same (unless there be some special provision made, as in some cases there is) must be taken by the Jew, or the Turk, or any other religionist who may be liable to take the oath, as a qualification for office, or for any other required purpose. Unless this were so, the Legis- lature would never have fixed a form, but would have said that such persons must take an oath of abjuration to the substance and effect following, and not 'the oath' of abjuration in the tenor following, as they have done. It seems to me that the legitimate result of my Brother Martin's reasoning is, therefore, to make the Legislature, by a somewhat forced construction, use this indefinite mode of ex- pression, whereas they have clearly used a definite one ; so that it would follow, according to his view of the case, that they must be supposed to have allowed one form of the oath of abjuration to be used by Jews, another by Roman Catholics, and possibly another by persons of a different persuasion. This, however, is a conclusion so contrary to the words they have used that I cannot bring myself to adopt it. If then there be, in the absence of any special ex- ception expressly made by the Legislature, but one form of the oath of abjuration to be adopted by all, we must proceed to inquire whether these words are an essential part of that form. I proceed therefore to examine how this clause first got into the oath of abjuration. It is not found in the oath prescribed in the reign of * Willes, 538. Miller v. Salomons. 269 Elizabeth, but is first found in 3 Jac. I. c. 4, which was passed upon the discovery of what is called the Gunpowder Plot. It is a curious fact, only lately brought to light by the publication of a MS. from the Bodleian Library at Oxford, by Mr. Jardine, that one of the main proofs used by Lord Coke, when he laid that case before the jury, was the production of a little book, found in the chamber of Francis Tresham, one of the conspirators mentioned in the Act, called ' A Treatise on Equivocation.' This treatise, corrected in the handwriting of the Jesuit Garnet, and having the imprimatur of Blackwell, the then arch-priest of England, discusses the question how far a person called upon, as he thinks unjustly, to make a declaration or promise, or to depose or swear to a fact within his personal knowledge, may lawfully equivocate, by using ambiguous words, or reserving mentally a sense of the words used different from that outwardly expressed by him, without incurring the sin of lying or the guilt of perjury. The question is there resolved in the affirmative, that he may lawfully do this ; and, amongst other propositions, it is affirmed, that even if he be required, by the form of the oath tendered, in terms to swear ' without equivocation or mental reservation,' he may still equivocate and mentally reserve, without danger to his soul. But in that treatise there is one exception to all this. No person is allowed to equivocate or mentally reserve, without danger, if he does so, of incurring mortal sin, where his doing so brings apparently his true faith towards God into doubt or dispute. For though he may lawfully on proper occasions omit to avow his true faith, he must never, by what he says or swears, bring apparently his true faith into doubt or dispute with others. Now, this treatise being before the Govern- ment of King James I., and in the hands of his Attorney-General, and used at the trial of the Gunpowder Plot, we find in the same year, 1605, that in a statute enacted mainly with reference to the same plot, these words 'upon the true faith of a Christian' are for the first time added to the oath of obedience then framed, and for the obvious purpose, as I think, of preventing effectually all such equivocation, by conclusively fixing a sense to that oath which by no evasion or mental reservation should be got rid of, without (even in the opinion of the Jesuit doctors themselves) incurring the penalty of mortal sin. They were therefore, I think, not merely a part of that oath, but the most effectual and stringent provision in it. I do not, therefore, call this properly an oath intended as a test of Christianity which it was not nor as a mere test of obedience, but an oath intended as a test of obedience, and framed so as to be a test against all equivocation also. But this though the fact to which I have referred is a very curious confirmation of the view I take of the importance of the words on which this case turns is not necessary to my opinion. It would be quite sufficient, I think, to affirm that the Legislature have said expressly, as they do, that an oath is to be taken, ' the tenor of which oath hereafter folio weth* for ' the tenor' implies that all the words which follow thereafter 270 Judgment. are part of the oath itself. It is to be observed that, in all the course of legislation on this subject, either these words, ' the tenor of the oath,' or equivalent expressions, are throughout used by the Legislature. I will shortly refer to them. In the first place, this same oath of obedience was by etat. 7 Jac. I. extended and applied to the members of the Legislature, and to all persons enumerated who exercise any functions or hold any offices in the State. No one reading this Act can, 1 think, doubt that the Legislature meant this enactment to be general, and without any exception of persons, whatever might be their religious opinions. The 30 Car. II., st. 2, left these oaths untouched, adding, however, a declaration against transubstantiation. It is unnecessary to refer to the intermediate Acts of the i Will. & M., st. i, cc. i and 8, more particularly. I come to the 13 Will. III., c. 6, which first established the oath of abjuration ; and there the words are : that the persons required to do so shall take ' the oath as hereinafter mentioned ;' setting out expressly the form, including and ending with the words, ' upon the true faith of a Christian,' introduced before into the old oath of obedience. This form of oath was not only to be taken, but sub- scribed also ; which shows, I think (for there is no trace of double subscriptions to be found), that one form only was to be allowed and adopted without addition or omission. With certain alterations in. the reign of Queen Anne, applicable only to altered circumstances, and therefore not material to be adverted to, things so remained up to the i Geo. I., st. 2, c. 13, when the three oaths of allegiance, supremacy, and abjuration, were for the first time put together ; and the Legislature there expressly require them to be taken ' in the words following,' and then set forth the oath of abjuration, con- taining the words ' upon the true faith of a Christian.' Now, how is it possible to give effect to the expression ' in the words following' if we do not use all the words which follow ? I cannot see how this difficulty can be got over by construction. Lastly, we come to the 6 Geo. III., c. 53, on which this case depends, by which it is provided that the oath of abjuration (the Legislature still using the definite article 'the') shall be administered in such manner and form as is hereinafter set down and prescribed, that is to say, &c. ; and then, as before, the oath is set out, ending with the same words, * upon the true faith of a Christian.' Now, when I find the Legis- lature beginning with ' the tenor of the oath,' and going on with 'the oath as hereinafter mentioned,' then saying 'the oath in the words following,' and finally ' the oath to be administered in such manner and form as is hereinafter mentioned and prescribed,' and find also that all these expressions are followed by a form containing these very same words, how am I to escape from the conclusion that these words do form a part of the oath prescribed ? But it is argued that to apply it to the Jews involves an absurdity, and that according to what has been, not improperly, called the golden rule of construction, we must modify the literal construction of these Acts so as to get rid of the absurdity : I add (and I hold it to be Miller v. Salomons. 271 part of the rule), only so far as is absolutely necessary to get rid of the absurdity. But let us see whether it is absurd to apply these provisions to the Jew as well as to the Christian. The Legislature did not require the first oath of obedience to be taken by all, but only by such persons as were reasonably liable to suspicion by two justices of the peace acting judicially, or by persons who had omitted to do certain acts. It may be, and it perhaps was, unjust in the Legislature so to enact. But we must take good care, in applying the golden rule, not to confound injustice with absurdity. The reason of the rule is, that the absurdity induces us to conclude that the Legislature did not so intend. I am afraid, if we say that in old times, such as those of the Gunpowder Plot, the Legislature must be held not to have intended what now we judge to be unjust, we shall ourselves be guilty of the grossest absurdity. I am afraid that I should, if that were the proper principle to be adopted, be obliged to hold that almost all the penal statutes had no operation at all, for I think that the most of them were grievously unjust. I can see nothing in this or the subsequent Acts containing the oath of abjuration to induce me to believe that the Legislature did not intend literally what they said expressly viz., that these Acts, and this oath, were to apply to, and be taken by, all the classes of persons therein named, of whatsoever form of religion, Catholic, Protestant, Quaker, or Jew, they might be, and in the very form set down. And I am confirmed, as I think conclusively, in this, by finding that where, on its being brought before them, the law was found to press unfairly on any of these persons, the Legislature has. from time to time relieved them, by dispensing with the swearing, and allowing the Quakers to affirm, and by dispensing with these very words of the oath ' upon the true faith of a Christian' in the case of the Jews in certain cases. That dispensation unfortunately does not extend to this case, but its limited existence seems to me to show con- clusively the opinion of the Legislature itself on this point. The words of the 13 Geo. II., c. 7, s. 3, are very remarkable. The Act recites, ' Whereas the words " upon the true faith of a Christian" are contained in the latter part of the oath of abjuration, and whereas the people professing the Jewish religion may thereby be prevented from receiving the benefit of this Act,' &c. ; and it enacts, that when a Jew proposes to take the oath, these words shall be left out ; and it also refers to the limited indulgence as to those game words given to the Jews, relieving them from the difficulties imposed by those same words. That was by an Act passed in the 10 Geo. I., intituled ' An Act for explaining and amending an Act of the last Session of Parliament, intituled " An Act to oblige all Persons being Papists in Scotland, and all Persons in England to take this Oath of Abjuration in its Terms." ' Now this recital clearly shews that Jews in England were included in the term ' all persons' as indeed could not well be doubted and that but for those indulgences they were always bound to take the oath of abju- ration including these words: and this Act was passed in 1739,- 272 Judgment. when Lord Hardwicke was Chancellor, and Sir Dudley Ryder and Sir John Strange were Attorney and Solicitor-General : and the Acts of the 9 & 10 George I. were passed when Lord Macclesfield was Chancellor, and Lord Eaymond and Lord Hardwicke Attorney and Solicitor-General. But it is now said that these three Acts were wholly unnecessary, and that these great lawyers ought to have known it ; and we are now, in the year of our Lord 1852, to awake from a sleep into which these great lawyers and the whole Legislature of those periods fell, and in which all persons ever since have remained, from 1739 down to the time of this argument for within our time these words have been advisedly left out of the oath in the case of the Jews, by Lord Campbell, in an Act framed by him. I cannot, therefore, believe this to be a reasonable conclusion. And besides, this argument really goes too far : for its legitimate extent ought to be to exempt Jews from taking any oath of abjura- tion under any circumstances whatever seeing that, as it is con- tended, it is absurd that they should take any oath thus framed ; and no other oath is expressly provided for them by the Legislature. JS"o one surely can suppose that the Legislature intended this result, and indeed Sir F. Kelly did not even venture to argue to this extent. But let us now for a moment concede that there is an absurdity in requiring all such persons under all circumstances to take such an oath, and that under some circumstances it would be impossible to suppose that Jews were to be called on to take it. Then I say that the golden rule only requires us to stop where the absurdity stops. It cannot surely be absurd to say that the Legislature may have really intended to require such an oath from all men, Jews or Christians, who take office or purpose to exercise important legisla- tive functions. If so, then it follows that the utmost that can be done would be to say, that these Acts as to Jews must be in con- struction confined to the cases of their taking office, or proposing to exercise legislative functions, and that in the other cases alone they are not bound to take the oath at all. But such a construction (even if adopted, which I think would be wrong), could be of no service in the present case. I am therefore of opinion that these words do form a distinct and essential part of the oath ; because they interpret, and give a peculiar and stringent sense to, the previous words of the oath, and are in fact incorporated in and form part of each sentence in that oath, so that without them no part of the oath has exactly the same meaning that it has when they are added to it. I believe that they were advisedly and on great consideration originally adopted, (perhaps on Sir Edward Coke's advice), and that they have been found effectual, and for that reason retained ever since. I think, therefore, that the oath is not taken at all if these words are omitted by the person swearing, and that Mr. Salomons has therefore voted without previously taking the oath of abjuration. I do most seriously regret that I am obliged, as a mere expounder of the law, to come to this conclusion for I do not believe that the R. v. Serva and others. 273 case of the Jews was at all thought of by the Legislature when they framed these provisions. I think that it would be more worthy of this country to exclude the Jews from these privileges (if they are to be excluded at all, as to which I say nothing,) by some direct enactment, and not merely by the casual operation of a clause, intended apparently in its object and origin to apply to a very dif- ferent class of the subjects of England. I regret also that the consequences are so serious, involving disabilities of the most fearful kind, in addition to the penalty sought to be recovered in this action, and in fact making Mr. Salomons for the future almost an outlaw. It is to be hoped that some remedy will be provided, for these consequences at least, by the Legislature. My duty is, how- ever, plain. It is to expound the law, not to make it j to decide on it as I find it, not as I may wish it to be. It seems to me that the law on this point is quite clear, and that the judgment must be for the plaintiff. JUDGMENT No. 2. In the case of R. v. "Serva and others for murder, the following was the judgment of Baron Alderson read at the meeting of Judges at Serjeants' Inn. Their opinions were delivered seriatim, but only the result of them all was, for political reasons,* published in the reports. [This case will perhaps be better remembered as that of the ' Brazilian Pirates,' tried at Exeter, in the winter of 1845, before Mr. Baron Platt, and convicted of the murder of the crew of a British vessel by whom they had been boarded as slave-traders. They were afterwards respited on a question of law, which was carried to the Court of Criminal Appeal, and ultimately discharged.] PIRACY, by the law of nations, is a felony committed on the high seas by a person whose general object is to commit felony against the subjects of all nations indiscriminately. Such a person, hostis humani generis, is by the common law of all nations (i.e., by a supposed municipal law of each) triable by any nations by whose subjects he is apprehended, and it is lawful for any of such subjects to appre- hend him. But if two nations by compact inter se make an offence piracy which by the law of nations was not so before, they do some- thing that is ultra vires. In such a compact, therefore, the word ' piracy' must be taken in a qualified sense, and the treaty must be taken to mean that each of the stipulating parties will make a * The political reasons were that the majority of the Judges would have held the seizure unlawful, and the crime not murder for that reason. But it was preferred to put it on the ground that it was not triable here. T 274 Judgment. municipal law for the trial of such offenders as pirates, and that if such a law be made by both, or perhaps by either, the courts of the country making such municipal law may, in pursuance of it, try such offenders, being subjects of the other country, and the country to which the offenders belong is estopped by the treaty from com- plaining that its subjects are so punished. If the executive government of both contracting states have also the legislative power (i.e., if they be despotic), it is possible that their merely agreeing to the treaty makes it a law for that purpose. But it is clearly otherwise where the monarchy is a limited one. Here the Queen has no such power. She may make a treaty, but the action of the Legislature is required before the municipal law stipulated for by that treaty is made. Here the compact by treaty is that slave-trading shall be piracy. We are at liberty, therefore, to pass an Act subjecting it to the same trial and penalties as piracy : when that Act is passed we can try Brazilians for it in our courts, and so alone can it be placed as to them in the same category as piracy by the law of nations. But here no such law has been passed ; and till it is passed we cannot try Brazilians for slave-trading as pirates. The Parliament may refuse to trust such a power to our ordinary courts ; they must do so if those courts are to try these offenders : they must define the course of procedure. Till they do this, no such offender can be tried here, and consequently cannot lawfully be ap- prehended that he may be tried. The seizure, therefore, of these persons cannot be justified on the ground that it was lawful to seize the Felicidade and her crew as pirates, in order that they might be tried, and so the ship, when seized, became ipso facto a British ship, and the murder triable here. But granting that this point fails to support the judgment, we have still to consider as a second point, whether, as the treaty also enables us to seize and detain, and in proper cases to condemn, Brazilian vessels if engaged in the slave- trade, this ship was not then also properly seized in conformity with the treaty ; for if it was, it became during seizure a British ship, and so the murder was committed in England, and is triable here. It becomes, therefore, necessary to examine carefully the provisions of the treaty. It authorizes us, if special instructions of a particular nature are on board an English cruiser, and given to an officer of defined rank, to seize a Brazilian ship having slaves on board. This, I think, is the result of the provisions of the two treaties with Portugal and Brazil contained in the Acts 5 Geo. IV. and 7 & 8 Geo. IV., which have been referred to. These constitute together a special code of terms upon which Brazil permits her subjects and their vessels to be seized by us. Here the seizing vessel, the Wasp, was commanded by an officer of the proper rank. As to the in- structions, none were given in evidence on the trial. But it is stated that there were ' instructions' on board the Wasp. That being so, we must either infer that these instructions were in conformity to the treaty, and commanded the officer to seize ships having slaves on board and no others ; or, from the fact of no instructions being R. v. Serva and others. 275 produced, we must infer that the captain had no instructions at all on this point. The former inference would probably be the one which the Brazilians on board the Felicidade would draw. But on either supposition the capture and seizure was illegal, for the Felicidade had no slaves on board when she was seized. Then, in- asmuch as it seems clear that this is so, does the seizure of a Brazilian ship made by an English officer illegally being contrary to or without the instructions of his Government change the national character of this vessel from Brazilian to English ? Surely we ought to have some distinct authority for such a proposition : none has been produced. In the absence of such authority I must hold that a wrongful act is a void act, and leave the Brazilian character of this vessel unchanged. If this be so, then inasmuch as by the law of nations a Brazilian vessel on the high seas is a part of Brazil as much as any part of the continent of Brazil itself, it will necessarily follow that this murder, being committed by a Brazilian in Brazil, and not in England, must be tried there, and not in our courts here. I do not say what might have been the case if the instructions, being given in evidence, had been shown to have ea^T-ess^y authorized this seizure, whether slaves were or were not on board the Felicidade. In that case the act of seizure would have been (although clearly unjustified by treaty yet) the act of the English Government, and might have amounted to a hostile capture, and so the ship captured might have been, till released, a British ship. In that case perhaps the murder might have been triable in our courts. But the facts do not raise that point. This, therefore, is not piracy and murder committed on the high seas, and triable in England, nor murder of one British subject by another British subject ; nor is it, lastly, a murder of a British sub- ject by a foreigner in England, i. e., in a ship which was English at the time when the murder was committed. It cannot, therefore, be tried in our courts at all. This trial was therefore illegal, and the judgment was erroneous. (The prisoners were pardoned and discharged.) T 2 276 Judgment. JUDGMENT No. 3. KNIGHT (Clerk) v. MABQUESS OF WATEBFOBD. From Young and Collier's Reports, vol. 4, p. 283. To a Sector's bill for an account and satisfaction of tithes, the de- fence was that the lands in the defendant's occupation comprised the Manor of ' F., which was in the Rectory of F., and that from time immemorial the owner for the time being of the Manor of F,, had paid to the Rector of F. the yearly sum qf^ol. for the maintenance of divine service there, for land in lieu of and in contentation of all manner of tithes arising within the Manor; and that the owner for the time being of the said Manor, or his assigns, had from time immemorial in respect of the said yearly sum, used to have, and ought to have, the tenth of all tiiheable things arising within the said Manor. THIS case was argued before me at the last sittings in Serjeants' Inn Hall, at great length, and with distinguished ability and learn- ing. And I have to express my thanks to the learned counsel who appeared on that occasion, for the great assistance which they have rendered to the Court. The plaintiff, Mr. Knight, has filed his bill, claiming an account of tithes from the defendants. He is the rector of the parish of Ford. The defendants are occupiers of lands within the rectory ; and they admit his title as rector, and their liability to the account, unless they are able to substantiate affirmatively in point of fact, and to support in point of law, the validity of the defence which they have put upon the record. That defence may be thus stated : they say, first, that the manor of Ford is, and from time immemorial hath always been, situate within the parish of Ford. They then aver, that from time imme- morial there has been payable by the owner of the manor of Ford for the time being, to the rector of Ford, the sum of 40^. annually, by two equal payments, at Lady-day and Michaelmas, in lieu of all tithes ; and further, that from time immemorial, the owner for the time being of the manor of Ford, or his assigns, have been accus- tomed to have, and in respect of that sum of 40^. so paid to the rector, ought to have the tenth of all titheable things arising within the manor. This prescription is the foundation of the defence, both of the Marquess of W aterford and his tenants, and of Mr. Askew and his tenants. The former set up the title to the tithes now claimed by the rector, as being in the Marquess as owner of the manor of Ford. The latter, as to part of their lands, set up a title to the tithes in Mr. Askew, derived by express conveyance from Sir John Hussey Knight v. Marquess of Waterford. 277 Delaval, a former owner in fee-simple of the manor, executed in the year 1 768, to Mr. Askew's ancestor ; and as to the residue, rely on the title of the Marquess of Waterford, with whom they say they have accounted for the tithes due. Both aver the immemorial and con- tinuous payment of the 40^. down to the period when the present plaintiff refused to receive it, namely, in 1822. The first point which was argued before me is, whether this prescription, as stated on the record, is valid in point of law. The authorities on this subject have all been brought before the Court. The prescription, indeed, is double : the first branch of it is, in fact, the assertion of an ordinary district modus in lieu of tithes ; and, if the evidence laid before the Court established that position, I appre- hend that the addition of the other branch would not vitiate it. But the difficulty is, that all the facts of the case are inconsistent with this conclusion. A modus in lieu of tithes is inconsistent with the receipt of tithes in kind by any one. All the evidence on the part of the defendant, however, is calculated to shew, if it shews any- thing, that the lord of Ford immediately received the tithes, and that the rector did not that he has sold the tithes and con- veyed them as the ancestor of the Marquess of Waterford did, to the ancestor of his co-defendant, Mr. Askew. This defence, therefore, fails in fact ; and the question must arise and must be determined upon the compound prescription, in- cluding both branches ; for the evidence certainly supports nothing else. The first question, then, arises, as to the validity in point of law of such a defence. No case certainly has, as yet, gone to this extent. The cases of Pigot v. Heron, Pigot v. Sympson, and Phil' lips v. Prytherick, which were cited, establish this proposition that a layman may prescribe in a que estate to have tithes as appur- tenant to a manor or to lands. And this, in the case of a manor, is stated in the books to depend upon the supposition, that before time of memory, the lord, being seised of the manor, may have, with the assent of the patron and ordinary, lawfully entered into a bargain with the parson, to pay to him a certain pension, and in lieu thereof to have the tithes of the land within the manor ; and that either by retainer he may himself enjoy, or by a prescriptive bargain with his tenants, he may take from them the tithes of their lands within the manor. The same supposition may be made in the case of the proprietor of land ; and so tithes may be lawfully appurtenant to a manor or to land. But no authority has been cited which goes any further, and which establishes that there has ever been allowed a prescription for the lord of the manor or the proprietor of land, and his assigns (meaning the persons to whom he may assign the tithes), to take the tithes from the terre-tenants. For the effect of this would be to make the right of taking the tithes assignable from one layman to another, and would make a layman capable of tithes in gross. I entertain, therefore, great doubts on this ground as to the validity, in point of law, of this prescription. But, independently 278 Judgment. of this difficulty, which is a question of law, another point was made in the course of the argument, tending to the same result. It was suggested that a very great inconvenience might follow from such a prescription, if allowed. For the lord of the manor might alienate all the lay possessions of the manor ; and then the parson, if the tithes also were assignable, might have nothing left out of which his pension could be secured. But inasmuch as the parson, patron, and ordinary had the absolute power in ancient times of disposing of the tithes, they had the right to make, and may have in fact made this bargain, however improvident such an arrangement must have been for the Church. And, therefore, I entertain some doubts whether, strictly speaking, that argument raises a difficulty in point of law. Thus a modus is said to be invalid if it be rank ; but I conceive that the rankness of a modus is not, strictly speaking, an objection in point of law to it. If there could be produced the original deeds containing the agreements, made at the proper period, and executed by the proper parties, such a modus would be valid. But the truth is, that a Court of Equity, judging both of the fact and of the law, determines from the gross absurdity of the bargain that no such bargain was ever in fact made, and does not think it necessary to subject such questions to further investigation. And so such questions, being habitually determined by the Court, have come to be considered questions of law and not of fact, to which latter class, however, they more correctly speaking belong. Here, therefore, if the prescription set up involves circumstances which induce this Court to come to the conclusion that no such bargain could ever have been made, this Court may act on these circum- stances, using them as criteria for its decision in point of fact alone. And this it will be, perhaps, most judicious to do on the present occasion. I shall therefore not consider myself bound, by this latter difficulty, to hold that this is an illegal prescription, but shall allow that objection to have its weight in the course of the examination which it will be my duty to make as to the facts of the case. If the result of the whole should be, that the Court thinks the proper in- ference from all the facts is, that reasonable persons, acting on the one side and the other, have in fact made this arrangement before time of legal memory, then I propose to decree that the bill should be dismissed with costs, subject only to the plaintiff's privilege of having an issue in case he is advised to claim it. And, on the other hand, if the inference be that this is a mere usurpation, arising out of arrangements made at a comparatively modern period, the plain- tiff will be entitled to an account, and to have the costs of this suit. The defendants' case, therefore, must first be stated ; and it de- pends, in the first place, mainly on certain uniform payments to the parson, which are traced back by receipts as far as the year 1690, the first receipt being of that date, and signed by George Chalmers, then rector of the parish, for half-a-year's payment, and stated to be for all manner of tithes. These receipts are produced in such numbers as to be, coupled with the evidence of payment from the Kniyht v. Marquess of Water ford. 279 steward's book, very fairly considered as proving a sum of 40?. con- tinuously paid from 1690 to the year 1822, at the time when the present dispute arose. They vary, indeed, in some important par- ticulars, both as to the nature of the payment, the periods of pay- ment, and the description of the district for which the payment is made. The payment is called a modus or seisin, and in some cases a rent. The times of payment are certainly not uniform. And the district is sometimes described as the estate of the person paying situate in the ' parish' of Ford, a description by no means unim- portant, when the other circumstances of the case are looked at. In other receipts the district is called ' the lordship of Ford,' which accords better with the defendant's present pleadings. But no doubt much weight is due to this body of evidence ; and I have on former occasions expressed, and still retain the opinion, that much of obscurity and somewhat of variation may fairly be expected to be found in cases like the present, where the evidence extends over a long period of time, without greatly detracting from the importance of the proofs. In addition to this body of evidence, the defendant incidentally, by the depositions produced in the suits in equity, which have been laid before the Court, has shewn that a payment of 40^. per annum certainly existed at a period earlier than 1690. The other branch of the defendants' prescription depends mainly on the proofs of the lord of Ford having dealt with the tithes having sold them having made them securities for money, and the like. These dealings, which are numerous, extend back to 1658 ; and are proved by the deeds coming from the custody of the defendants. Then come the suits in equity, which may be considered as appli- cable to the two branches of the prescription taken together. The earliest of these suits is that instituted by Davidson against Blake in 1676; and certainly, no one in reading through that document alone, would have supposed that the prescription as now pleaded was then in existence. For Davidson having, in his bill, claimed tithes in kind as well as relief from the suit upon the resignation bond, Blake, in his first answer, claims merely a modus decimandi for his lands in the parish of Ford of 40^., which he explains in his further answer as being a modus for the demesne lands of the manor of Ford. The later suits, however, set up the present prescription in both its branches ; and, indeed, in the same terms almost as it is now- pleaded. But the evidence produced before the Court on those occasions, and the facts deposed to of very material variations in the amount paid, which are by no means satisfactorily explained, and the apparent collusion between the parties, do not, I think, entitle this part of the evidence to much, if to any weight, in favour of the defendants. On the contrary, it has appeared to me, on examining it as carefully as I can, to throw considerable light on the plaintiff's 280 Judgment. The plaintiff's counsel make several points in answer to the de- fendant's case. First, they say, that, from a series of ancient documents, they can shew that this payment of 40^. could never have existed at so early a period as the reign of Richard the First. It is very difficult to determine cases on conclusions drawn from such sources. These documents certainly show, that the value of the living, during the time of the wars of the Border, was reduced to almost nothing. But some of them also shew, that at an earlier period it was much larger sufficiently large indeed to have included this payment of 40!. as a portion of it. And all that we can, I think, fairly infer from the later documents is, that it is somewhat more Erobable that the whole value was of a fluctuating description, kely therefore entirely to be affected and wasted by the ravages of Border wars, rather than that it consisted of a fixed salary as to part, and a fluctuating profit as to the residue. On the other hand, if the fixed salary were payable by the lord, and his whole property, as well as the residue of the tithes, were wasted and destroyed by the same wars, it might perhaps be considered that the lord might be unable to pay, and that his inability to pay the fixed portion might fairly account for the description of the rector's whole income as destroyed and wasted by the hostile incursions. Much weight, therefore, cannot be given to these documents. The next point made is, that the manor of Ford did not originally include the manor of Heatherslaw ; and to shew this, a variety of ancient documents have been laid before the Court. It is not my intention to examine these in detail. I think the result of the whole is, that the manors were originally separate, and that they did not unite under the same lord till the 6 Henry VI., a period long after legal memory. But this alone does not entitle the plaintiff to my judgment, except as to the lands of Heatherslaw. The prescription is for the manor of Ford ; and though Heathers- law is not a part of it, it may still be good for that which is included within Ford itself. But, in one point of view, the separation of Heatherslaw from Ford is a circumstance of which the plaintiff is entitled to avail himself. Some of the receipts put in by the defendants speak of the 401. as paid for the estate of the person paying it in the parish of Ford; and the original answer of Blake, in the first suit, claims the modus for all his lands in the parish of Ford. Now we find that Catford Law, which is in the lordship of Ford, has paid tithes ; and this has been done, it may be fairly said, looking at some of the evidence in the suits in Equity, ever since Catford Law ceased to be part of the estate of the ancestors of the Marquess of Waterford. And again, it appears that Heatherslaw, which was not part of the lordship of Ford, and not originally in the possession of the owners of Ford lordship, did, under the 40?. claim, and at some period when it was in their possession, obtain exemption from tithes ; and the same may be also said of other portions of land since included Knight v. Marquess of Waterford. 281 in the same estate. These facts, coupled with the wording of the receipts, and of the original answer, look as if the 40^. was really paid as a compensation for the tithes of the estate of the person paying it, howsoever circumstanced, if within the parish of Ford, and would seem to point to a lease from time to time granted and continually renewed, at the same rent, by the rectors*to the owners of the tithes of their estate for the tune being, as the origin of the whole. Certainly, the payment of tithes for Catford Law is a very strong fact for the plaintiff. It may be said that the lord of Ford had no power over the proprietor of Catford Law after he sold him the land and the tithes. It is not entirely clear to me that he did sell to him the tithes ; and if he did not, he had the right to take these tithes himself, supposing this prescription well founded. But, supposing that he did, by the deeds he executed, pass the tithes from himself to the owner of Catford Law, it is a very strong fact against his having that right, that a person in 1658, well acquainted with all the facts as they really existed, to whom the tithes had been con- veyed, should, from that time, have surrendered so valuable a right, and yielded these tithes to the usurping rector. Such a thing is highly improbable ; and when I find that this person who yielded had no power over the rector, and that the person who resisted was the patron holding the rector under bond of resignation a state of things uniformly kept up almost to the present time I own the fact of the continued payment of tithes for Catford Law seems to me a very strong fact in favour of the plaintiff's right. We must add to this fact the variations in the amount of the payment proved in the course of the suits, and which occurred almost at the same period of time when this separation took place. The clergyman appointed during the usurpation, not being under the control of the patron, received 6o/. and not 40^. Indeed, it seems as if the moment the power of the patron ceased to have weight, that the 40^. is either varied, or tithes in kind claimed and paid. There are also other objections to the defendants' claim. It includes all tithes, and in truth, the defendants' documents speak of all tithes. Yet it is clear, that the rector has received some kind of tithes of small amount in the lordship of Ford, and even from that part of it which belongs to the defendants. I shall make few observations on the document disclosed by the Bill of Discovery. They shew an apprehension of the weakness of the defendants' title entertained at the time, and a great readiness on the part of the clergymen presented to give up the right of the Church without due inquiry. They exhibit the evils of lay patron- age, especially where the proprietor of the lands subject to the tithes is the patron ; and, pro tanto, they diminish the value of the series of receipts signed by the clergymen so conducting themselves. But, in general, I think, we are apt to place too great reliance on apparent mano3uvring, and to consider that to be actually fraudu- lent, which perhaps may have been only an indirect proceeding of a 282 Knight v. Marquess of Waterford. weak person in order to improve a case which he thought not suffi- ciently clear before. Upon the whole, however, considering all the facts of this case, and reverting to the observation before made, that the prescription itself set up is of a very improbable nature, and therefore requiring very clear proof, I have come to the conclusion, that the defendants have not made out satisfactorily such a prescription in point of fact. If I saw that any further advantage could be obtained by the oral examination of witnesses, I would direct an issue to determine these points. But the question depends on documents almost entirely. There is indeed no disputed fact raised by the depositions of the witnesses ; and it would, I think, be absurd to send to a Judge and jury at Nisi Prius, to determine off-hand a mere question of fact, which depends on a careful investigation of documents which I have myself reviewed, and which have required a long lapse of time for me to read over and carefully weigh. The defendants made, however, one other point, to which I shall shortly advert. They contended that the plaintiff's right was barred by the fine which has been levied. But I think it was not. These tithes remain spiritual, according to the view I take of the facts of this case. They have been always received under what must be considered, in the opinion of the Court, to have really and legally been a composition of 40^. for them. If this view of the facts of the case be correct, the fine can have no operation : and if the opposite view be correct, it is not material to consider the question ; for the foundation of the decree will fail. Upon the whole, I have arrived at the conclusion, that I ought to decree for the plaintiff an account of the tithes due and the costs of the suit. Decree accordingly. * This decree was reversed in the House of Lords by Lord Cottenham, on the ground that it was imperative to send it to law for determination. But Lord Ellesmere, in the time of James I., was more liberal. In Tomley v. Clinch, Gary's Reports, p. 23, he refused in a suit between Mulier puisne and Bastard Eigne to send it to law, and gave this reason that it was a thing long past, and rested not properly in notice de pais, but was to be dis- cerned by books and deeds, of which the Court was better able to judge than a jury of ploughmen. In this case the result was, that being sent to law, there were two trials. On the first the defendant succeeded, on the ground that the plaintiff was barred by the Statute of Limitations. On motion a new trial was granted ; and on the second trial, and after a delay of four years, the Judge at Nisi Prius read my judgment to the jury, who adopted it ! ! ! It was, after all. compromised. E. H. A. APPENDIX II. Report of ME. ALDEBSON'S Speech, in his Summing up on the East Retford Disfranchisement Sill, Monday, 1 2th July, 1830. MY LOEDS, Whether my learned friend calls witnesses or not, is a matter of his discretion : I have no doubt he has exercised a sound one, and that he gives up Mr. Hornby upon very substantial reasons. No doubt no man with the sense of my learned friend, or with any fraction of his intelligence, can doubt what your Lordships' opinion must be with respect to that individual. But without further ad- verting to the conduct, or the character, or the evidence of that witness at present, I will proceed to sum up the case on behalf of the petitioners. This is a case, my Lords, which, though it has occupied a considerable portion of your Lordships' time, is really a very short one, depending on a very few points, and which must be determined without the slightest difficulty by your Lordships, the moment you have established the principles upon which the decision shall proceed. I will venture to affirm, that a case more clear upon the evidence if we are but right as to the principles never was presented at your Lordships' bar ; and therefore I apprehend that, in discussing it, the only important point for me to consider will be, what are the principles upon which this case must depend. For if I succeed in establishing those to your Lordships' satisfaction, it will be a task without the slightest difficulty afterwards to apply the evidence which has been given before your Lordships to those principles. My Lords, unquestionably this is a case of very great importance to the public at large. It is also one of very great importance to the persons for whom I appear, being no less than a Bill to take away from these persons rights which they have possessed for a great many centuries ; and that upon evidence upon which I venture to say, your Lordships'would not take away from the meanest subject in this realm any the slightest right. Indeed, it is one of the most absurd parts of this case that my learned friend is applying to your Lordships to take away the rights of a whole borough upon evidence which would not be sufficient, if believed, to authorize the taking away the elective franchise of any one of the individual members of it. That is one of the gross absurdities of this case. 284 Mr. Alderson's Speech on the My Lords, I apprehend that no one now can dispute that the elective franchise is a right of property. Nay, more, that it is not merely a right of property, but that it is a right of property of the most valuable description. I know that it has been said by some to be a dry trust, but that, surely, is a doctrine now altogether exploded by all persons who have considered the subject attentively. How that can be considered a dry trust, when the deprivation of it is considered as the deprivation of a valuable right, in the loss of which a party is entitled to damages, I need only to refer to the important case of Ashby v. White, which agitated both Houses of Parliament, which was discussed in both of them with great earnest- ness, and with great learning, which agitated the Courts of West- minster Hall for a long period, which was decided by the most eminent lawyers in favour of the right, which decision has remained unimpeached to this day. My Lords, this decision has been acted upon in the course of the recollection of us all in repeated instances. I allude to the actions brought against the High Bailiff of West- minster in respect of the denial of the right of voting in that city, before the present learned Lord Chief Justice of the King's Bench. No one ever of late years has thought of disputing that the right of voting was a valuable franchise in the nature of a right of pro- perty. But if this be a right of property, and that of the most valuable description, can it be less to be regarded because it affects a large body of individuals, than if it belonged only to one. If your Lordships would not take it away from any one of the electors of East Retford, and if when any one else attempted to take it away your Lordships would protect them in defending their in- terests, and would permit them to bring an action to recover damages, will your Lordships, I ask, by a legislative enactment, proceed to take it away yourselves from the whole body ? I say that your Lordships will do no such thing, unless you see some grave case made out upon satisfactory evidence by which such a proceeding can be justified. This brings me to consider what are the principles upon which your Lordships have held yourselves at liberty to take away so valuable a right. They proceed upon the ground that that valuable right has been forfeited. Upon what can a forfeiture depend? Upon misconduct. And how is misconduct to be proved, except by legal and distinct evidence P It follows, therefore, if this be a right of property, that your Lordships must act upon it as a case of for- feiture, and if so, your Lordships will look to the decisions of your predecessors upon this subject, to see what they considered to be the grounds upon which such a forfeiture is to depend, and what is the species of evidence by which that forfeiture is to be supported. If, indeed, I were here to presume to discuss the general question of Parliamentary Reform, I am sure your Lordships would im- mediately tell me that I was out of my place, and not performing my duty. Your Lordships do not call counsel here to the bar to discuss questions of that description. If your Lordships' decision is to be East Retford Disfranchisement Bill. 285 influenced by general considerations of political expediency ; if you are to sacrifice this borough as a sort of scapegoat for the purpose of quieting certain insurgent troublesome persons, in order that they may not complain of your Lordships being inattentive to the complaints of the people as to reform, we have undoubtedly no right to be here. But I conceive that your Lordships, by hearing us, have given us a pledge that those are not the principles upon which this is to be decided. It is not to be decided upon political expediency, and I should therefore not only waste your Lordships' time if I adverted to such questions ; but I should do more I should be forfeiting that respect which I owe to your Lordships' House, if I were to attempt to discuss them. For the very presence of counsel at the bar affords a pledge that your Lordships do not intend such points to be discussed at all. My Lords, we are here to examine witnesses, and to discuss thia case upon the evidence. We are not to have conjecture substituted for testimony. We are not to have misconduct, first supposed to exist, and then to be called upon to negative its existence. We are not to have issue turned against us, and to be called upon to prove that corruption does not exist, instead of my learned friend's being called upon to prove that it does exist, If your Lordships could think that it is just for the case so to be conducted, then, indeed, the petitioners have but little chance at your Lordships' bar. For then your Lordships would, at the very beginning of the investi- gation, forfeit that character for justice which has hitherto distin- guished, and which, I am sure, will always distinguish, the decisions of this House. My Lords, you are to decide this case upon evidence, not upon conjecture; upon testimony, not upon prejudice; you are not to rely upon ingenious hypotheses, and to call upon us to give evidence, in order to contradict them, instead of having the evidence given in the first place, upon which these hypotheses ought to be originally founded. My Lords, I complain grievously of the manner in which this case has been presented to your Lordships, and the manner in which your Lordships' minds have been sought to be prejudiced by my learned friend's beginning at the wrong end of the case. My Lords, what was the manner in which it should have been conducted P If my learned friend had had a good case to submit to you, he would have begun with the last election. We entreated your Lordships so to order this case to be conducted, but you thought it was to be left to the discretion of those who conducted this case to begin at which end they pleased, and undoubtedly that is the ordinary course ; but this was an extraordinary case. If your Lordships have complained, as well you might, of the length to which this in- vestigation has been drawn out ; if your Lordships have complained, as well you might, of the number of witnesses who have been called, and the apparent tediousness of the investigation, it is all in truth to be attributed to this original fault. For the point to which the investigation, although tedious, waa 286 Mr. Alderson's Speech on the directed was very material ; and if we had not gone through every individual instance, as my learned friend called the witnesses, we should not now have had the triumphant case we have at your Lordships' bar. It was important, in our view of the case, to show that corruption and bribery were very distinguishable things. It was a point with my learned friend to make them the same, and we therefore were obliged, when he called his witnesses, to ask those questions from each ; for it would have been said, if we had not gone into each case, that though there had been an investigation to negative bribery in some individual cases, of one or two persons, that the greater number of instances into which we had not inquired were cases of actual bribery and not of corruption. But, my Lords, if this case had been conducted as it ought to have been, by beginning at the last election, the case would have been much shorter. We should have begun by founding your Lordships' jurisdiction upon the transactions at the last election, and then might have given in evidence the circumstances of the former elections by way of aggravation. All the decisions which have taken place in this House upon this subject are, on this point, uniform. There has been no case yet (whether this is to be an ex- ception I know not) in which the essential point in dispute between the parties has not been whether there has been bribery at the last election. Unless your Lordships can establish that, the jurisdiction of your Lordships upon this case, if I may so speak, is not founded I do not mean to deny the power ; but I say, in the exercise of the power, your Lordships have never permitted any case to succeed and to proceed to a law where that fact has not been made out. I therefore say, that this case should have been begun by proving bribery at the last election ; and if my learned friend had attempted that in the course of the examination of the first two or three wit- nesses, it would have appeared that he had no case whatever. Then, my Lords, the case would have been over. It would have been over conformably to justice and the ordinary rules of proceeding. The case, as to the last election, would have stood upon its own naked merits, and would have been no case at all. But this would not do. My learned friend knew he had no case supported by credible and legal evidence as to the last election ; but having legal evidence of an improper receipt of money upon former elections, my learned friend thought that if he could excite a sufficient quantity of pre- judice in your Lordships' minds by that testimony, he might then persuade your Lordships more readily to believe his weak and in- credible case as to the last election, or rather that it might pass over almost without any evidence at all, under the impression which he had raised in your Lordships' minds by the rest of his case. But I am sure your Lordships will not permit this, and that whether this case be begun at the beginning, or at the middle, or at the end, you will look at the evidence, and see whether there be any distinct testimony of bribery at the last election. If there be no legal East Retford Disfranchisement Bill. 287 * evidence of guilt (and I should be ashamed to argue before your Lordships as to any distinction between want of legal proof and in- nocence, having heard one of your Lordships, with great satisfaction, state that he should consider those as innocent who were not proved to be guilty), I call upon your Lordships to come to the conclusion that it would be great injustice to take away the rights of these parties which they have so long enjoyed. My Lords, questions of this description have come before Parlia- ment upon four different occasions. The first of these was the case of Shoreham, which was followed by the case of Cricklade, which was again followed by the case of Aylesbury, which was consum- mated by the case of Grampound. In these the bills were passed. There has also been the case of Penryn since, in which the parties failed. Now I will read to your Lordships what the case of Shoreham was from the best authority I can find I mean the Parliamentary History itself; there your Lordships will see what was the nature of that case. I read it from the i6th volume of tiie Parliamentary History, page 1346 : ' A remarkable scene of corruption was at this time brought to light by the Select Committee appointed* to deter- mine a contested election for the Borough of New Shoreham in the county of Sussex. The matter of contest was that the returning officer for that borough had returned a candidate with only thirty- seven votes, in prejudice to another who had eighty-seven, of which he had queried seventy -six, and made his return without examining the validity of the votes he had so queried. It appeared, from the defence made by the officer, that a majority of the freemen of that borough had formed themselves into a society under the name of the ' Christian Club,' the apparent ends of which institution were to promote acts of charity and benevolence, and to answer such other purposes as were suitable to the import of its name. Under the sanction of piety and religion, and the cover of occasional acts of charity, they profaned that sacred name by making it a stale for carrying on the worst purposes, of making a traffic of their oaths and consciences, and setting their borough to sale to the highest bidder, while the rest of the freemen were deprived of every legal benefit from their votes. The members of this society were bound to secresy and to each other by oaths, writings, bonds with large penalties, and all the ties that could strengthen their compact, and carried on this traffic by the means of a select committee, who, under pretence of scruples of conscience, never appeared or voted at any election themselves, but having notwithstanding sold the borough and received the stipulated price, they gave directions to the rest how to vote, and by this complicated evasion the employers and their agents, having fully satisfied their consciences, shared the money as soon as the election was over without any further scruple. The returning officer had belonged to this society, and, having taken some disgust to his associates, had quitted their party ; the majority of legal voters which he objected to, was, he said, in part owing to his experimental knowledge of their corruption, and partly founded 288 Mr. Alderson's Speech on the upon several improper acts that had come within his knowledge as a magistrate upon the late election.' Therefore, my Lords, this was a case of allegations being proved by the oath of the returning officer and by other persons at the bar of the House of Commons. In this case, therefore, of the Borough of Shoreham there was a club which had been established for many years ; it was a club which was conducted by a committee ; it was a club the members of which bound themselves by oaths and by bonds to do whatever the committee thought it was incumbent upon them to do. The committee made a previous bargain : they re- ceived the money from the candidate: the candidate having paid the money, and the committee having received it, the committee gave directions to the subject persons of the club, and they voted accord- ing to the decisions and orders of the committee. Why, my Lords, can any man doubt that that was a plain case of gross bribery, aggravated by conspiracy, and that the persons, every one of whom voted under those circumstances, were guilty of bribery, in the ordinary sense of the word ' bribery,' too, at the last election, because it was upon the last election that the event took place which brought the whole to light. A case of a more aggravated description than the case of Shoreham can hardly be found, involving everything that could make it bad, involving a majority of the freemen of the borough, involving the last election, involving bribery, and involving a conspiracy w'hich had been carried on for a long series of years. So notorious, indeed, was it, that the case was introduced upon the public theatres of the country, having been one of the incidents in Mr. Fopte's farce of ' The Nabob,' where the Christian Club proposed to elect the black servant of Sir Matthew Mite. It was therefore as notorious as it was disgusting ; and surely if Parliament had not interfered in such a case, it would have been fairly said that bribery might have stalked through the whole land with impunity. The next case was Cricklade, where there was also a majority of electors bribed, and that, too, at the last election. There, too, there were actual convictions for bribery, and the corrupt conduct had been continued for a long period of years. In the case of Aylesbury, in like manner, there was bribery at the last election bribery of the majority bribery of long continuance ; and though there was no club, there was a regular list of voters, who were all bound by a common tie to vote according to the decision of a particular number of persons. In the case of Grampound (which I had the honour of conducting before your Lordships, my learned friend, Mr. Adam, being on the other side) we began by laying upon your Lordships' table a variety of actual convictions for bribery at the last election. We showed that in the three or four previous elections the majority of voters had, upon every successive election, been bribed ; and we showed actual bribery existing at the last election, and existing also during previous elections, and that of the majority of legal voters. My Lords, the case of Penryn confirms, by its decision, the prin- ciples I have deduced from these four cases. It confirms them by East Retford Disfranchisement Bill. 289 deciding, that when one or other of these ingredients did not appear, your Lordships would come to an opposite conclusion. But in Penryn there was actual bribery at the last election, though it was not of the majority of legal voters. Indeed, there has been no case till the present in which the preamble of the bill itself did not state a case of corruption or bribery at the last election. Now, these are the principles which, according to the precedents, your Lordships have sanctioned by your authority. Permit me now, very humbly, to suggest to your Lordships that these prin- ciples are not only founded upon authority, but they are founded upon the plainest grounds of justice and of good sense. If they were now to be established, I should have no doubt of succeeding, before your Lordships, in convincing you that they ought to be laid down how much more, then, when I have the advantage of know- ing that they have been laid down by successive decisions of this House, by persons of the highest aiithority and of the most enlightened understandings. In the first place, then, I am to show, my Lords, why it should be legal bribery, and npt mere vague corruption. I answer, first, who knows what is corruption ? Do your Lordships know what it is P Can your Lordships tell me what corruption is ; how it is to be defined ; and where that which is corruption becomes a legitimate influence ? If I were asked the question if any one were to come to consult me upon the subject, and were to say pray what may I do which any given tribunal will not consider to be punishable cor- ruption ? I should say, I must first know who are the persons who are to decide upon it : because if I were to take twelve persons who are red-hot parliamentary reformers, I should know that almost any- thing, the lifting up of a finger upon the occasion, would be con- sidered by them as corruption ; or if I were to take twelve persons who had all their lives trafficked in rotten boroughs, then I should expect that if I was to prove that something had been done wtich was, to almost any extent, morally wrong, but yet was not within, the letter of the law, it would not be considered by them as corrup- tion. But if I were to be asked, what may a person do so that he shall not be liable to the penalties of bribery for it, I should look to the law of the land, and easily answer the question. If you de- part from the law of the land, your Lordships will be involved in difficulties of which you cannot anticipate the result. No one will ever know his rights, they will be perpetually varying accord- ing to the varying circumstances and opinions of the times. NTo one will know when he is safe. No one will know when he is to be called upon to be punished, for he will never know whether he has committed an offence. It is impossible, unless your Lordships confine yourselves to the known law of the land, that there can be any limit at all. The most legitimate influence will in some people's opinion be considered as corruption ; for example, giving a place. Why is a place to differ from money ? It is money's worth. It is always much larger in amount than anything which these poor U 290 Mr. Alderson's Speech on the voters of East Retford have ever received. If all these voters of East Retford under the influence of the Treasury had received places from the patronage of the Crown ; if they had received places of excisemen, or if they had received livings, or if they had received anything of that sort after the election, your Lordships would not think, surely, that that was corruption : and yet, where are you to stop ? There are very many people in this country who consider such gifts as corruption, and who would consider those circum- stances quite sufficient to disfranchise the borough. Besides, your Lordships in departing from the known law of the land, and punishing by disfranchisement on such grounds, are, in truth, making ex post facto laws. A party who is acting conformably to that which he believes to be the law of the land, who has received that which he believes he might lawfully receive, is called upon, ten or twelve years after the thing happened, to account for his con- duct in doing that which, if he had known it was illegal, he would perhaps never have done. Surely this is unjust. The voters here have done that which, by the law of the land, they had a right to do ; and, though your Lordships may consider them as acting im- properly, yet it is clear they could not know that they were com- mitting any act of illegality in receiving the sums of money which were given to them. I say, therefore, that if your Lordships pass this Bill, you would disfranchise these people for doing that which they thought they had a right to do, and which there is no law at present existing in the statute-book to prevent their doing, and yet your Lordships are to visit these people with the severest penalty that can be imposed upon them, namely, the disfranchisement of their borough, and the destruction of the rights they have hitherto possessed. Suppose, I grant, that they have done that which your Lordships as gentlemen and men of honour would not do, but which these uneducated people thought they had a right to do, not being restrained by any motives of mere delicacy, are they to be dis- franchised for that ? It is clear that they were not liable to any penalty known to the law for doing upon this occasion what they nave done. My Lords, if people are to be disfranchised for doing shabby actions, where are we to stop P What borough will be safe? That is all these people have done ; they have not committed bribery, but they have received money in a shabby way. My Lords, if all the per- sons who receive money in a shabby way were disfranchised, I should like to know how many freemen would be left in the boroughs in this country. Your lordships hitherto have gone by strict and plain rules. Hitherto you have said we will decide on the same principles which would govern us if we were about to disfranchise an individual. Your Lordships have said that a borough shall be disfranchised in cases where an individual would be disfranchised. When would an individual have been disfranchised ? By com- mitting bribery. Suppose my learned friend had endeavoured to prove this case against any one of those persons whom he has called. East Retford Disfranchisement Bill. 291 Suppose any one of these persons had been called to the bar of any lawful tribunal in the kingdom of England, and had admitted the facts which have been stated in the examinations before your Lord- ships. It would have been preposterous. There is no court of justice in England that would not have laughed the person out of court who should have ventured to contend that this, although it may be an improper practice, is one to which the law has annexed any punishment. Then if that be so, if A. and B. and C. and D., being charged with this supposed offence, would have been dis- missed upon the ground that they had committed no act which could render them liable to disfranchisement, will your Lordships call the whole borough before you, and disfranchise them for the acts of A. B. C. and D., which would not have disfranchised A. B. C. and D. themselves ? It would be monstrous so to do. But, my Lords, my case is still stronger. It does not follow that, even if you would disfranchise an individual, therefore you would disfranchise a borough. Hitherto the great lawyers who have adorned this House have said the innocent shall not suffer for the guilty ; but your Lordships are now called upon to make the innocent suffer where there are no guilty. If some had been guilty of bribery, the greatest lawyers have said if there be ten innocent and ten guilty, the ten innocent shall not suffer for the ten guilty : but here there are not ten guilty of bribery, and yet your Lordships are going to make the ten innocent suffer, by taking away the franchise from the innocent, though no legal guilt is proved at all. That, indeed, would be accumulated injustice. I say, therefore, that if this were a new case, your Lordships would not pass this Bill unless you were satis- fied that legal bribery existed. But, further, when your Lordships upon all former occasions have required legal bribery to be proved, when in Shoreham bribery was proved ; when in Cricklade bribery was proved ; when in Aylesbury bribery was proved ; when in Grampound bribery was proved ; is not my case conclusive on this point ? If your Lordships were to rule otherwise, monstrous in- justice would be done. In every one of the former cases, your Lordships' predecessors did not do such injustice. Will you do it upon the present occasion? The next point is, that the bribery must extend to the majority of legal voters. Now I apprehend that the principle which has been laid down in this house by a noble and learned lord is founded, as indeed might naturally be expected from him, upon the plainest principles of justice and good sense. Lord Mansfield and Lord Thurlow, and the great lawyers of that day, laid it down that in their judgment no innocent man should suffer for the guilt of another. A very sound and good principle no doubt. They therefore thought that if bribery were proved, and that too against the majority of voters of any borough, the utmost extent to which by a Bill of this kind your Lordships ought to go, was to disfranchise the persons proved to have been guilty of bribery, and to leave the borough in the possession of those who were pure. Where, however, a ma- U 2 292 Mr. Alderson's Speech on the jority of legal voters have been proved to have been guilty of bribery, your Lordships may reasonably, I conceive, adopt a different rule. Those eminent persons proceeded xipon the sup- position that every voter was a mere individual, and therefore that the punishment of one individual ought not to redound to the in- convenience of another : which is a perfectly sound and true principle. If indeed the right of voting be an individual right, and an individual right only, that argument cannot be got over. It would go the length, as Lord Mansfield puts it in the case of Cricklade, of proving, that if one individual voter was left pure in the borough, the borough ought to be left in the possession of that one individual voter ; and that it would be the same as if a borough containing many voters were reduced by the act of God to the con- dition of Gatton or Old Sarum, and would not be liable to be dis- franchised, unless it should be held expedient that a general Act of Parliament should be passed for disfranchising all small boroughs. But, my Lords, I apprehend that the right of voting is not to be considered as merely an individual right, and upon that subject I would call your attention to the language of Lord Holt, and the principles he laid down in the case of Ashby v. White, which appear to me to show the true way of solving the difficulty in question. He says, Howell's State Trials, vol. xiv., p. 782, ' The other right of choosing parliament burgesses is not annexed to any freehold or estate in possession, but vested in the freemen of the place, and is created in this manner : viz., when a town was incorporated, a grant was either then or after made to the body politic, that they shall have two burgesses for the parliament to be chosen either by all the freemen and inhabitants of the place, or such a selected number as is prescribed by the charter. The inheritance of this privilege' (this is the part to which I call your Lordships' attention) ' is in the whole corporation aggregate, but the benefit, possession, and exer- cise is in the persons of those, who by the constitution of those charters are appointed to elect.' It appears, therefore, from this passage, that the inheritance of the privilege of voting is in the whole corporation aggregate, although the benefit, exercise, and possession ot it is in individuals. If, then, the inheritance is in the whole corporation aggregate, it follows that the whole corporation aggregate may forfeit it. Now, how can the corporation forfeit the right? I answer, upon the same principles that individuals forfeit it, viz., by corrupt acts on the part of the corporation in the one instance, and of the individuals in the other. If, therefore, there be a corrupt act on the part of the corporation, they may fairty forfeit, where the same corrupt act on the part of an individual would be followed by an individual forfeiture. Now, an individual would forfeit for an act of bribery. If, therefore, the corporation, so to speak, are bribed, the corporation may forfeit their franchise. But how does the corporation act? By its majority. It follows, therefore, that in order to create a forfeiture by the corporation, East Retford Disfranchisement Bill. 293 there must be a corporate act done by a majority of the corporation; and therefore I say that it is clear upon the plainest principles, that a corporation is to forfeit by the corrupt act of its majority. Your Lordships also, upon former occasions, have proceeded upon this principle, and have decided that where there is a corrupt act of bribery by the majority of the corporation, there the right of voting may be forfeited, and the parliament ought to interfere. The whole, therefore, thus considered becomes perfectly plain, and founded upon the ordinary principles of law. The whole law is consistent in this view of it. When bribery is proved against aa individual, by the law of the land he is disfranchised, and so, in like manner, when it is proved against a corporation ; in that case it is liable to the same consequences. My Lords, this point seems to have been adverted to by Lord Mansfield in the Cricklade case, for he took a distinction founded on it. The right of voting at Cricklade was not a corporate right of voting. It was a freehold right of voting. Prior to the Act of Par- liament, any one who had a freehold to any amount had the right of voting. Lord Mansfield distinguished the case on that account from Shoreham. But the House of Lords considered that it was no solid distinction. They held that it fell within the equity of the rule, and that the people of Cricklade were a quasi corporation for that purpose ; in the same manner, as your Lordships know, that townships and parishes are considered as quasi corporations for the purpose of prescriptions as to the repair of their roads, and the like. The case, therefore, depends upon there being a corporate act of bribery committed by the majority of voters ; and I apprehend that it must be a corporate act of bribery, that is to say, an act done by the majority of the corporation at the time ; and your Lordships will find that that also is not immaterial, when you come to investi- gate the evidence in this case. The first two points, then, are, that there must be a case of actual bribery, and that there must be a bribery of the majority. The third point is, that there must be bribery committed at the last election. The reason of that is this : the body of electors is a fluc- tuating body, it is perpetually changing. Your Lordships know, that in the Universities particularly, and in most other elective bodies, in the course of a few years the whole constituent body is changed ; and therefore if your Lordships were not to require that the last election should be the guide, you might, for aught you know, be visiting in truth and in literal effect, the sins of the fathers upon the children to the third and fourth generation. My learned friend has upon this occasion endeavoured to disfranchise this borough by proving that some of these persons received election money five or six-and-thirty years ago. So that there is to be no limitation upon this subject. But your Lordships will adopt no such rule, I feel assured, but will follow that which with justice your Lordships have hitherto proceeded upon, viz., that there shall be bribery of a majo- rity of voters, and at the last election. When these three points 294 Mr. Alder son's Speech on the shall have been established, then your Lordships' jurisdiction, if I may so say, is founded. Your Lordships, then, will allow yourselves to exercise a discretion to proceed. That discretion hitherto has been exercised only where there has been the addition of one other circumstance, namely, that the bribery shall appear to be of long. continued standing in the borough. It must be proved, therefore, to have existed upon former occasions as well as at the last election, because, although your Lordships have a jurisdiction by the first three circumstances coinciding, yet your Lordships have not hitherto exercised that jurisdiction without the fourth. These, then, are the principles upon which I propose to consider this case. If my learned friends can make out that there has been bribery at the last election if they can establish that it has been extended to the majority of the voters if they can show that it has been for a long period of time prior to the last election, as well as at the last election then they will have made out a similar case to those in which your Lordships have passed bills of this description ; and I therefore now proceed to examine the evidence in this case, to see whether they have failed, or whether they have succeeded in these points. Now, my Lords, when I look at the evidence in the case, I am quite at a loss to see upon what it is, if I am right in my principles, that my learned friend can depend at all. I say, if the principles are established, they are out of court. To begin j Is there any case of bribery at all P My Lords, they have called before you a great number of persons who have successively stated to your Lordships, that in one or two years after the elections of 1812, 1818, and 1820, certain packets, very improperly, were received, apparently in a surreptitious manner, by persons who did not know from whom they received them, but who obviously appear to have taken care that they were not to be acquainted with the persons who distributed them. All this I admit ; for I am not willing to understate the case of my learned friend : but I add, that every one of those persons who have been called successively to admit their misconduct at your Lordships' bar, have uniformly negatived any previous agreement, any previous promise, any previous bargain, direct or indirect, that the condition of their voting should be the receiving of that money at a subsequent period. Now my learned friend will say, your Lordships will not believe these witnesses. Be it so. It is perfectly indifferent to me whether your Lordships believe them or not. This I know, that if they are not believed, your Lordships have no evidence at all : and if they are believed, my learned friend has no case. Now, my learned friend may take his choice of the horns of that dilemma. Either he may remove the whole of that evidence from your Lordships' notes ; or he may give the whole of that evidence its full effect. If he does the one, your Lordships have no evidence ; if he does the other, my learned friend has no case. There is a third alternative (if I may use such an expression) which my learned friend, no doubt, would wish your Lordships to take, but which, I am quite sure, in addressing your Lordships East Retford Disfranchisement Bill. 295 the last tribunal in judicial matters your Lordships will not adopt an alternative which, I should hope, would not be adopted even by the lowest court of the realm which is that of believing the con- trary of what the witnesses say. I know it is the common way in which many half-educated people judge of such things ; but persona who are accustomed to judicial investigations will form a very different conclusion. If my learned friend indeed had made a primd facie case, and it had been necessary for us to contradict the whole or any part of it, or for him to confirm the whole or any part of it, my learned friend would have had something to say ; because he would have said this : ' You may believe as much of this evidence as you please ; and you may disbelieve as much of this evidence as you please.' But I say the difficulty here is this, that if you dis- believe the evidence there is absolutely nothing remaining ; for my learned friend has not produced the other primd facie evidence. In. truth, if you thus contradict your own witness, you must remove the whole of that witness's testimony from the case : for here, the nature of the case is such, that you must say that the witness ia utterly unworthy of credit, unless you believe his story. Therefore your Lordships must say, either that these witnesses are speaking true, or are not worthy of any credit at all. If the latter, then there is no evidence whatever of their having received the money ; for that evidence is accompanied by evidence that they received it with- out any prior promise, direct or indirect. Therefore, if your Lord- ships disbelieve the one, you must disbelieve both ; and then my learned friend has no case at all. But really are your Lordships prepared to disbelieve these persons ? This brings me to the consideration of the extraordinary manner in which this case has been pressed upon your Lordships the extraordinary nature of the evidence which has been received the bill of indemnity under which the evidence has been given and the manner in which persons have been called to the bar of your Lord- ships' House, and compelled to disclose circumstances utterly dis- creditable to themselves. My Lords, I have had the pain of seeing a gentleman of fortune and station called to your Lordships' bar, and compelled to disclose what happened ten or twelve years ago compelled to disclose the whole of his papers to divulge all the secrets committed to his honour and integrity, and to declare all those facts and circumstances which my learned friend, in the exercise of his discretion, thought material to be used upon the present occasion. A more painful, and give me leave to add, a more dangerous precedent has scarcely ever been made. Do we not know that it is commonly said in this country of England, that persons sell seats and boroughs? Whether this is said truly OP falsely, it is not material to consider. Are your Lordships prepared to expect to see gentlemen of fortune (not, indeed, members of your Lordships' House, because you are privileged), but are you prepared to see gentlemen of fortune in the kingdom of England brought to the bar of this House, and asked this question : ' Do you know I. S., 296 Mr. Alderson's Speech on the Esq.? Do you recollect upon any occasion before the election of 1826 seeing that gentleman when he proposed to give you 5000?. if you would bring him in for the borough of A. P' 'I do.' ' Did you receive this money P' ' I did.' ' Upon the election before did you receive the same sum from Mrs. B. ?' 'I did.' Whereupon a bill is brought in to disfranchise the borough of A. B. C. or D. upon evidence extracted from the mouths of the parties themselves ; and all this has been over ten or twelve years. But your Lordships will remember that this case will be quoted as the precedent. And if it be complained of upon any similar occasion in future, it will be in the power of the counsel to say, ' In the case of East Retford your Lord- ships ordered Mr. Evans, a gentleman of fortune, who had stood for the borough, to produce all his papers, documents, and writings, and compelled him to disclose the secrets which the people of East Eetford ten or twelve years before had committed to his charge ; he was compelled, at the hazard of commitment, to disclose all these circumstances. And will your Lordships now prevent this investi- gation from taking place ? Will your Lordships now refuse to act up to the precedent then established in 1830? Will your Lord- ships not call before you all the persons that can give you informa- tion upon this subject?' What will be the consequence of all this ? My Lords, this will be parliamentary reform in the most oppressive shape. My Lords, I know very well that these consequences are not such as will operate upon your minds in the investigation of this, which is a judicial question. But it is not immaterial to remind your Lordships, that by these extraordinary powers thus exerted, you have before you all that can in any possible manner be pumped out from the people of East Hetford ; and that after all, you have not got any proof of bribery ; but on the contrary, that bribery is negatived, and that you have got nothing here proved but the pay- ment of money without any previous agreement, direct or indirect. In the case of Mr. Trotter, in Lord Melville's impeachment, where there was also a bill of indemnity, a question was proposed to Mr. Trotter, the effect of which was to compel him to disgrace himself by the answer. Mr. Trotter refused, and the Commons House of Parliament waived it, I suppose foreseeing that your Lordships' House would come to the conclusion that he was not bound to make the answer ; but in this case it has been ruled otherwise, for the first time. I know that in Grampound, neither my learned friend, Mr. Adam, nor myself, conceived that the bill of indemnity ex- tended further than to protect voluntary witnesses. We never thought that it went to the extent of compelling people, but we thought this : that whereas a person might be very willing to give your Lordships information, and to say, ' I will take upon myself the consequences of the discredit, but I do not choose to allow myself to be punished ;' therefore there was a bill of indemnity to protect persons in that situation. And I am confident that in the Grampound case I shall be borne out by my learned friend, Mr. Adam, that there East Retford Disfranchisement Bill. 297 was no person compelled to give any evidence at all, but the witnesses called were persons who were prepared willingly to state the facts they knew at your Lordships' bar. I see my learned friend confirms my recollection upon that subject ; and I am sure your Lordships will pause a long while before you extend the rule in any other case to the extent to which your Lordships have gone here. Undoubtedly, if your Lordships are to compel people to answer bills of discovery in criminal cases upon their oaths, it will follow that no person can be safe under such circumstances. My Lords, the wonder in my mind is, that under such circumstances under the fear which these persons have been under of your Lordships' awful tribunal, by which they have been compelled to state before your Lordships the receipt of this money, and all the circumstances they have ever heard from any person connected with this borough the wonder is, I say, that they should not have stated something from which your Lordships would have had reason to say that there was evidence of bribery that there was evidence of a previous corrupt contract. But nothing of the sort has come out ; and I presume only because there really was nothing that could come out. The facts appear to be simply these : there have been sums of money distributed upon three occasions, and upon three occasions only, so far as we can find out, with all this discovery, and with all this calling of hundreds of witnesses before your Lordships' bar. There have been only three elections at which there has been any distribution of money, and every one of these proofs has been accompanied with the fact, that there has been no previous promise upon the occasion. Then, my Lords, there has been no bribery. There has been improper con- duct, but there has been no bribery. There has been conduct which the law of the land has never prohibited, although the law of gentlemanly conduct might have prohibited it. Your Lordships are, perhaps, the most fearful tribunal to decide on this subject that could well be selected. Your Lordships, from your habits of life, have connected such a receipt of money with the idea of something corrupt, low, base, and vile. No doubt this is a species of corruption of the lowest description ; but I trust your Lordships will look to the law of the land, and say, ' Has the law of the land prohibited it?' and that you will come to the conclusion, 'No, it has not.' T)hen have these people done that which they knew to be contrary to the law ? They have not. They Irave done that which they believed to be conformable to the law. They have done that which they supposed the law never prohibited. Then, because that is not gentlemanlike conduct, are your Lordships to take from them a right of property, when they have committed no legal offence at all ? But then, supposing this had been bribery, how far has it ex- tended? That brings me to the second question, the question of majority. I will go over that as shortly as I can, for I know that the more I condense what I have to say, the better chance I shall have of obtaining your Lordships' favourable attention. Upon looking through the lists, your Lordships will find that in the 298 Mr. Alderson's Speech on the present borough there are 212 burgesses. In addition to those 212 burgesses who were admitted when this investigation commenced, there are six persons whose inchoate rights have been consummated, and who have been admitted this day. Those inchoate rights have been existing for a long period of time, and they have been consum- mated for some weeks or months. This happening to be the charter day. they have been admitted to-day, but they have had the right to be admitted for some period of time. Therefore, in truth, there have been 218 burgesses from the commencement of this investi- gation. There is also another class of persons that ought not to be omitted by your Lordships in the consideration of the present case, and that is the number of apprentices actually serving, whose ser- vices commenced before this investigation, whose rights, though not consummated, are in the progress towards consummation, and who will be equally deprived of their franchise by your Lordships taking away the right of voting from the people of East Retford. Your Lordships will find that between 1820 and 1826 there were about sixty-five persons admitted, partly upon birthright, and partly upon service of apprenticeship. You will find that the average number of birthrights is very small, in comparison with the average number of persons who acquired the right by reason of their serving apprentice- ships. But even with respect to birthrights, of course a man who is the son of a freeman has an inchoate right at this moment, just the same as an apprentice, and therefore I have a right to take the whole of the average number of persons who in four years are likely to be entitled. In six years you have ia evidence that there were sixty-five persons admitted c of that number probably about forty or fifty persons will have inchoate rights, not yet consummated, but whose inchoate rights are to be materially affected by the present Bill, in case your Lordships should pass it. Therefore there are not at present less than 240 or 250 persons materially interested in your Lordships' decision. Of actual voters there were 212 at the com- mencement of this case. Now, out of these 212, there are ninety-two persons who have never been accused, or even mentioned in the course of this trans- action, whose names not a breath of suspicion has touched. There are ninety-two persons whom my learned friends must admit to be pure, for even Mr. Hornby does not question their purity. There are also ninety-three persons who have admitted, at your Lordships' bar, the receipt of packets upon several different occasions. Now, I will just beg leave to dissect those ninety -three persons, because your Lordships will find that not to be immaterial when you come to consider one part of this case. There are twenty-four persons who have received packets after the elections of 1812, 1818, and 1820. There are fifty-eight persons in addition, who have received at the elections of 1818 and 1820. There are ten who have received in 1820 only. Then there are, in addition to those, two who received in 1812 and 1818, but who did not receive in 1820; and there are three who receivedin 1818, and at no other period. Now, East Retford Disfranchisement Bill. 299 really, I think I ought, in the first instance, to call upon your Lord- ships, without doubt, to reject the last two classes. There are three of them who have received only once, and that not at either the last election or the last but one. It would be a monstrous proposition to say that a person, under such circumstances, should be counted a corrupt burgess at the present moment. Here is one who never received but once who has not received upon the last two occasions, and who, therefore, if he ever did receive, must be considered as having long since considered it as an improper act. Then there are two who, though they received upon two occasions, have, in like manner, discontinued doing so at the last two elections : there are, therefore, five who have not for the last two elections received any- thing. This makes ninety-seven persons altogether. But if we consider this case, upon the principle which, I submit to your Lord- ships, is the true one, and hold that in order to establish a corrupt act, it must be a corrupt corporate act, it will follow that we ought not to add the corrupt persons of 1812 to the corrupt persons of 1818, and those again to those who are affected in 1820, in order to produce a sufficient number to disfranchise the borough. I know that even if we do that, I am entitled to succeed : but I say that it is putting the case much too strongly against myself; it is also putting the case upon wrong principles if we thus confuse one election with another. Either the election in 1812 was corrupt, or it was not: either the election in 1818 was corrupt, or it was not: either the election in 1820 was corrupt, or it was not. If it was not corrupt.it was pure. There was no corrupt corporate act in 1812 there was no corrupt corporate act in 1818 there was no corrupt corporate act in 1820. Therefore, I say, the question is this : Did the cor- poration do a corrupt act of bribery in 1812? Did they do it in 1818 P Did they do it in 1820 ? Did they do it in 1826 ? LORD CHANCELLOR. There were ninety-two in 1820. ME. ALDEKSON. Your Lordship is perfectly right, there were ninety-two in 1820 who received packets. At that time there were 190 burgesses, therefore there was no corrupt corporate act in 1820, because there were ninety-two burgesses who received packets, and there were ninety -eight pure. We now come to 1818. Your Lord- ships will find in that year there are eighty-eight who received packets. There were at that time 188 burgesses, therefore there were 100 pure. Then there was no corrupt corporate act in 1818. In 1812 the thing is absurd, because there are only twenty-six persons out of 169. Therefore there was no corrupt act of the corporation in 1812, there was no corrupt act of the corporation in 1818, nor any corrupt act of the corporation in 1820. Now, if your Lordships are not to keep these things separate, see what gross in- justice may be done. Let me suppose there were 450 voters in a borough, and that 150 of them received bribes, and 300 received no bribes, what would your Lordships say of the state of that borough? Is it to be disfranchised, or is it not ? There is no corporate act of corruption there are two-thirds of the borough pure. The proper 300 Mr. Alderson's Speech on the way therefore would be to disfranchise the 150 and to leave the borough in the possession of the pure 300. But suppose it should so have happened that out of that number 200 had died ; according to the way that we put it, I say you are to look to the state of circumstances at the time the election took place. At that time the borough therefore, as a body, was pure. But according to the contention on the other side, the deaths of the pure 200 would produce an opposite conclusion. Here we are entitled to the benefit of all the pure persons who have died in the intermediate time since each election, and they, on the other hand, are equally entitled to count the number of persons receiving packets, who have died in that time. That is the fair way of putting it. You must look at the period at which the act was done, to understand what the com- plexion of the act was. If it was pure then, it is pure now. There has nothing happened since except the ordinary circumstances of mortality. Then I say that if your Lordships look at the cases upon the subject, you will find that was the case. We proved a majority in Grampound at the last election. We proved a majority, not of surviving persons, but of actual voters, at the prior election, and of actual voters at the election before that, and therefore w e showed that every election, one before the other, was corrupt. Therefore there was a corrupt corporate act upon several different occasions : here there is not any. Therefore I say, first, there is no corruption at all proved, according to nay view of the circumstances under which your Lordships have decided similar cases. But I will not stop there, because I say even if you were to take the existing number of persons, and to add all the pure together, and all those who have received packets together,, and strike the balance, it will be found to be in our favour. LORD CHANCELLOR. What is the proportion of deaths of the pure and impure P MR. ALDERSON. The moment your Lordship gets the number of the persons who are alive of each sort, you will easily ascertain the proportion of those who have died, and your Lordships will find the number has been greater on our side than the other. Indeed it must be so r because if we had the majority on our side, the greater proportion of deaths would, in all human probability, be also out of that greater body. But if I were to put them all together, and take the case as it at present stands if I were to look at the number of persons who are actually in existence at the pre- sent moment, and who have been affected by reasonable evidence I have a majority. For this purpose I must give to my learned friend the ninety-two who have been proved to have received money at some or all of the three elections of 1812, 1818, and 1820. Then there are other persons who have been impeached by the testimony of Mr. Hornby. There are also certain persons who have been impeached upon questionable evidence extracted from their own mouths. The whole number which my learned friend is in any way entitled to, when added together, makes 104. Still, therefore, the East Rctford Disfranchisement Bill. 301 majority is against him ; and whether it be one, or whether it be ten, if our principles are right, cannot make any distinction. It is sufficiently hard that 101 persons being corrupt, and 100 persons being pure, that the 100 pure persons should suffer for the 101 im- pure. It would be much harder if the 101 should suffer for the 100, and it would be also contrary to your Lordships' decisions. If my learned friend is to get the pound" of flesh out of us, he must at least get it without any drop of blood. If he is to succeed by proving that he has got a majority, he must at least prove that, and by clear and distinct evidence, because your Lordships naturally would wish to decide according to the plain equity and justice of the case, that the innocent shall not suffer for the guilty. The majority therefore fails, unless Mr. Hornby is called in to the assistance of the case. JS"bw, my Lords, who is Mr. Hornby ? I hardly know whether I ought to waste your Lordships' time in discussing his reputation. My learned friend will not even call witnesses in sup- port of it. We have called witnesses who are unimpeached, not- withstanding the threats of my learned friend. We have called Mr. Smithson, a most respectable solicitor at York, and Mr. Walker and Mr. Richardson, solicitors of unimpeached integrity men on whom no imputation rests men who stand in a situation very different from that of Mr. Hornby, and they certainly give a very bad ac- count of him. My Lords, what does Mr. Hornby say of himself? I think I need not go much further than his own account of himself; he is a young gentleman who has been unfortunate enough to make an old man's will, which old man's will has been set aside, at two suc- cessive trials, by special juries of the county of York, under the directions of Mr. Justice Bayley. This gentleman is the attesting witness to a will executed at his own father's house, the devisee having, brought the unhappy testator there ; and although my learned friend asked Mr. Walker whether Mr. Hornby had any assignable interest for making the will of this old man, he did not ask Mr. Hornby himself whether he had. My Lords, it is no un- charitable thing merely to suppose that an attorney who makes a will for an incompetent person, who is brought by the devisee to a lunatic asylum for the purpose of his executing the will, has some private consideration for so doing, though there may be no proof which the adverse party can bring home to him of any corrupt con- sideration. Your Lordships know enough of the world to be sure that no such attorney will gratuitously sacrifice his character for ever by making a fraudulent will ; but if that were so, it would not make the thing much better. Mr. Hornby would only have the merit of being a disinterested rogue, instead of an interested one he would still be a rogue still a person unworthy of being believed upon his oath. He has sworn that the old man, Flint, was capable of executing a will, which, upon the oath of two successive special juries, the man was found not competent to execute. I should like to know what better proof your Lordships can have 302 Mr. Aldersoris Speech on the than that his evidence there was discredited, even supported by the testimony of the two subscribing witnesses to the will, both of them connected with him, the one the father-in-law of his brother, and a servant in the lunatic asylum. Yet it was discredited. I say, then, what better proof is there that he was not worthy of being credited on his oath, than that four-and-twenty jurymen of the county of York have given their verdict on their solemn oath, that they would not believe him on his oath ? That is enough to destroy any man's character for veracity. But does it rest on the verdict of those four-and-twenty impartial jurymen ? What does Mr. Smithson say ? Mr. Smithson says that the whole story told of him is a tissue of falsehoods from begin- ning to end. Then, in addition to the circumstance that he has been contradicted by Mr. Smithson, there is this further circumstance, that he was dismissed from Mr. Smithson 's employment because there was misconduct with respect to his accounts. Mr. Smithson tells your Lordships that he dismissed him (Hornby) because he obtained money in a very improper manner. He went, it seems, to a client of Mr. Smithson, received money, and never accounted for it. Now this is the gentleman on whose evidence your Lordships are called upon to disfranchise the Borough of East Retford. Mr. Smitbson further states that Hornby obtained money in his (Mr. Smithson's) name, and put it into his own pocket. I do not want to go through all his misconduct ; it is a very disagreeable subject to him and to me too, but I must do this in discharge of my duty. There is another circumstance which still more influences me, my Lords, and which 1 must bring before your Lordships as utterly discrediting his testimony. Do your Lordships remember the man- ner in which Mr. Hornby kept back the circumstance of his having been with Mr. Garland P Do your Lordships think that Mr. Hornby forgot that ? Do your Lordships believe that it is possible that a man who had gone away from Mr. Smithson in disgrace would for- get to whom he had been assigned for the remainder of his time ? It appears that he did not remain long with Mr. Garland. How that happened we are not informed ; probably he was again dis- missed, and then he was bound to his brother. I beg your Lordships' attention to that to his brother to serve out the remainder of his time at Scarborough. Is it possible that your Lordships can believe that Mr. Hornby could have forgotten that he entered into the service of Mr. Garland ? Or is it not more reasonable to believe that he might suppose that the counsel who was cross-examining him, my learned friend Mr. Adam, who had not been acquainted with his previous history, would not know that he had been in Mr. Gar- land's service and dismissed from Mr. Garland's service, and pro- bably this would not have been elicited but for accidental circum- stances. Your Lordships know it is proved now that both Mr. Smithson and Mr. Garland were present as witnesses at the trial at York. Mr. Hornby's attention was called to these circumstances by the cross-examination. Mr. Garland was pointed out to him ; East Retford Disfranchisement Bill. 303 his attention was called to Mr. Smithson ; is it possible that he could have forgotten he was in the service of Mr. Garland ? And yet he has sworn that he did. Mr. Garland being dead, we could not call him from the dead to prove the circumstances under which he parted with him ; therefore he has that all his own way ; but if he has told falsehoods as to the manner of his quitting Mr. Smith- son, I put it to your Lordships whether he may not have been guilty of equal falsehood in the circumstance of his leaving Mr. Garland. Where then does he go ? Does he go to any respectable, independent solicitor for the purpose of serving out the remainder of his time ? No, my Lords, he goes to his brother, who would be sure to receive him whether he was disgraced or not. He must have been exceedingly bad if his brother would not receive him ; but he did not serve out the remainder of his time even with his brother. He came to the office of Mr. Galsworthy, in London, who is connected, it seems, with the Insolvent Debtors' Court, for the purpose of serving out the remainder of his time. With respect to the will, my Lord, he states that while he was with his brother at Scarborough, this old man called upon him for the purpose of con- sulting him. He says he took written instructions, and that, for- sooth, he had lost them ; a singular thing in the trial of a will cause, that the attorney had lost his written instructions ; that is the ac- count he would wish your Lordships to believe of his conduct upon that occasion ; and that of a will executed in a lunatic asylum by an old man under circumstances such as those where any attorney would be most careful to shew that he had pursued the written in- structions of a client. My Lords, he never did take any written instructions. That was one of the points made in the cause, as was proved at York : he produced a will written without erasure from beginning to end, which must have been prepared, unless he was the most extraordinary draughtsman, with considerable care and difficulty. It was, however, produced, written all fair ; and then one point made before the jury, and successfully made, was, that that could not be true, that it could not oe true that he had no written instructions, but that probably the devisee gave him the written instructions. It is perfectly clear what the conclusion was, that this man was in a conspiracy with the devisee ; that he had his written instructions from the devisee, and not the old man. Every- man who heard him must have been satisfied that that was the reason he denied at York having any written instructions. This is a circumstance shewing the nature of the man, and therefore the impossibility that your Lordships should believe him upon his oath. Under such circumstances as those stated I am sure you cannot credit his story. But if he had been ever so respectable a man, if he had been as respectable as he is utterly deficient, if he had borne as good a character as my learned friend could have wished, he has been contradicted over and over again, and that by testimony such as your Lordships will feel to be of a character very superior to that to which it is opposed. 304 Mr. Alderson's Speech on the My Lords, Mr. Hornby has been contradicted by very respectable persons, who have been called to say that the declarations he has stated to have been made in their presence are false. One of these is Alderman Meekly. What evidence is there that the character of Alderman Meekly is subject to objection ? He was cross-examined as to a debt of Mr. Cottam's, and about a bankruptcy, and what is the statement Mr. Meekly has given of that? If it is not true, my learned friend could have contradicted him. Alderman Meekly says that he had given to a gentleman of the name of Cottam a warrant of attorney ; that he executed that warrant of attorney, and afterwards fell into distressed circumstances. Mr. Cottam then put the warrant of attorney in force against him, and finding that he could not pay, Alderman Meekly did what I take leave to say an honest man ought to have done ; and if even Mr. Meekly had pro- cured a commission to be executed against himself, I say the pro- curement of such a commission, whatever it might be in point of law, would have been in point of honour a very just and proper thing, for it was no more than saying, ' Here is a creditor who has got possession of property which ought to go among all the credi- tors. Let the property be distributed among them, and then Mr. Cottam will not get the whole, but every one will get his proportion.' That is what an honest man ought to do, and what Mr. Meekly has done. No doubt the man who was thus disconcerted would be angry at having lost the remainder of his debt, and very probably he would in consequence refuse to sign his certificate on that ground. Now, if there is anything whatever in the statement of Mr. Meekly which is untrue, my learned friend might have contradicted it by Mr. Cottam, who is here ; but he does not. His evidence, there- fore, must be taken to be true. Then this fact on which my friend relied, so far from throwing any shade over his testimony, proves him a just and honest man ; and your Lordships will not fail to remember this. Mr. Meekly has never received a farthing on any election in the whole course of his life, and yet Mr. Hornby has had the audacity to fix upon him a declaration, as if he was concerned in the corruption of the borough. Mr. Meekly has denied that ; his whole conduct refutes it ; it is not merely his testimony upon this occasion, but his whole conduct from beginning to end has refuted it. And is it likely that to such a person as Mr. Hornby Mr. Meekly would forfeit the character he had justly and truly acquired ? But it is most important I should now call your Lordships' attention to the evidence of a witness called for my learned friend, a person of the name of John Walker, who stated in the course of his cross-examination to my learned friend, Mr. Adam, that Hornby had concocted the interpretation of the words ' all is right ;' that that was concocted in Hornby's office. My learned friend, Mr. Law, immediately cross-examined his own witness, John Walker, with considerable vigour, and he brought out that Mr. Meekly was present. If, then, what Walker said was not true, Mr. Meekly could contradict him in what he said. Why did not my learned East Retford Disfranchisement Bill 305 friend then call Mr. Meekly ? He could have no object, except to have the truth known ; he could have no object but to lay that before your Lordships. My learned friend is not counsel as we are for parties, and therefore could not be influenced by the interest of parties. My learned friend is here for the purposes of public jus- tice ; he ought therefore to have called Mr. Meekly ; he was bound in justice to the public to call Mr. Meekly. He would very well say, ' I care nothing about the result I am here to examine wit- nesses, not for a particular side, but for the purpose of establishing the truth. Here is a man who can tell me the truth ; here is a person who can either confirm Walker, or can contradict him ; here is a person who can either confirm Hornby, or can contradict him, and therefore I will call him.' I say, my learned friend was bound to call him. I cannot suppose there was a desire on the part of my learned friend or any other person, to make a case. I cannot suppose that any one can consider himself as a partisan upon such an occasion as this : but I will suppose that the object is to have the truth, and the truth only ; and then, I say, they ou<;ht to have called witnesses, and particularly they ought to have called Mr. Meekly. We have not feared, however, to call Mr. Meekly ; and Mr. Meekly proves very clearly that the phrase, 'All is right,' was concocted by Mr. Hornby ; that he first gave to it an interpretation which has been attempted here ; and in truth, this was the circum- stance most relied upon before the Committee of the House of Commons, as conclusive of the case there. It was that which pro- duced all this investigation, and now it is clearly and distinctly established that the very circumstance which deceived the House of Commons, and the circumstance which induced them to originate this proceeding, the very circumstance which has caused this ex- treme length and this extreme delay before your Lordships, was the invention of Mr. Hornby. My Lords, an expression of this sort may be a very innocent jest, or very significant, according to the meaning which a designing person may give to it. ' All is right,' is just the expression for such a man as Mr. Hornby. A clever and shrewd attorney who had nothing to restrain him from doing so, would probably select such a saying to make out the case. Accordingly, we find that Mr. Walker states that Hornby did so. We find that confirmed by Meekly ; he boasted to him of this as a very fine transaction, which does more credit, certainly, to his un- derstanding than his honesty ; and he endeavours to found upon this the whole case which he attempts to make out against these burgesses. Every one of the witnesses who has been called has been asked whether he ever heard the expression, 'All is right.' dare say there is no borough in England in which they have not heard that ; but they are asked more than that. ' Did you ever hear that spoken in any particular way P' ' No.' ' Did you hear it as meaning anything corrupt?' ' No.' Then Hornby's fraud is contradicted by a host of witnesses, and has nothing to stand upon x 306 Mr. Alderson's Speech on the except his own testimony a testimony, in this case, utterly un- worthy of ci*edit. Under these circumstances, can your Lordships decide this case upon his evidence P If your Lordships take away his evidence, you have really nothing in the slightest degree affect- ing the borough as it respects the last election. And even if we could take Hornby's evidence as true, which is a supposition I by no means mean to make, and if your Lordships by any unhappy misconception should be unable to distinguish right from wrong, and should suppose that Mr. Hornby has erred into truth on any occasion, what has he proved ? He has not proved that more than twenty -six persons have been corrupt, if you believe every word he says. Undoubtedly, Mr. Hornby proves bribery, if you believe him : he proves bribery at the last election, for he proves a demand of money on the part of the voters as the condition on which they were inclined to vote. But I say that is just the sort of evidence one should expect to receive from Mr. Hornby. He knows the materiality of this ; he is therefore disposed to give your Lordships that account, and he did not suppose we should contradict him ; he did not think we should bring back the witnesses. My learned friend brings up the burgesses ; he calls them first, he examines them as to the packets, and then he brings up Mr. Hornby, after the witnesses are all gone home ; and then Mr. Hornby is called to speak to declarations made by those same persons at the last elec- tion. Mr. Hornby probably did not suppose your Lordships would send for the witnesses a second time ; he supposed, probably, that we should not be bold enough to put them into the box again, and that as the witnesses had stated nothing to the contrary, he was at liberty to say what he pleased ; but he was deceived. Your Lord- ships, in justice, permitted us to bring those witnesses back. They have been brought back at a great expense to the country, for the purpose of contradicting Mr. Hornby. The object, if it was in- tended to prevent our contradicting Mr. Hornby, has not succeeded. He has been contradicted, and I shall dismiss Mr. Hornby, and all his testimony, with the observation, that if your Lordships could believe him, your Lordships would believe anybody. My Lords, I now come to the evidence of Mr. Ogilvy. I do not mean to say you will not believe him to a certain extent; but he has proved nothing against the Borough of East Eetford. His testi- mony may be explained in the most simple manner possible. What Mr. Ogilvy proves against the Borough is, that he was asked to make a deposit, and that certain shakes and nods were, as he was informed, given to the voters when the canvass took place. As to that, he has been contradicted. There are some very singular cir- cumstances in his testimony which may possibly though it is difficult to believe it proceed from mistake or want of recollection. There was among the gentlemen who attended upon his canvass a person of the name of Grolland. It is a very singular circumstance that he should not have recollected that person, or not have thought East Retford Disfranchisement Bill 307 it material to mention him; but Mr. Golland is not mentioned by him m the. whole course of his evidence. Mr. Golland dined with him, supped with him, and canvassed with him, and appears to have been one of his most intimate friends ; but Mr. Golland is not men- tioned throughout his evidence, and it was perhaps convenient that he should forget him. He might not suppose that we were aware of his existence, or of the facts connected with him. We have however, called Mr. Golland, and, so far as he is concerned, he has contradicted Mr. Ogilvy. He had much better means of knowing the facts than Mr. Ogilvy, for he was the most active canvasser, and he put down all the names as he proceeded. It is obvious the people were extremely jealous of Mr. Ogilvy's responsibility. Mr. Cottam, it seems, went over to Clumber to visit the Duke of ^ewcastle with him, and it appears to be a very singular interview. He says, ' I am going over to call on the Duke of Newcastle, to obtain the introduction of the Duke.' The Duke happens to be from home, upon which he says, ' Oh, I am just as well satisfied as if I had seen him. I dare say he was better satisfied ; for I con- clude the Duke had never seen him in his life, and would not be very likely to patronize him. However, he comes back quite satisfied that he had not seen his Grace. Mr. Cottam, supposing that he was pretending to an acquaintance with the great which he did not really possess, immediately concluded that he was a mere pretender, and not very unlikely to incur expenses without paying them. That was the estimate Mr. Cottam formed of him whether justly or not, your Lordships will decide. My Lords, after this Mr. Cottam left him, and Mr. Ogilvy went away. And how did he go away ? There were a number of people waiting to be paid. "When Mr. Ogilvy came down to East Ketford, what could have been more simple or more easy than for Mr. Ogilvy to have deposited at some bank in Retford a sum of money for his current expenses ? I have heard of cases in which a person has been obliged to carry down the money in his own carriage because the bankers would not receive his money, and that not a hundred miles from Eetford. But I never yet heard of that being the case at Eetford. I never heard of Mr. Foljambe having refused to receive a deposit. It would have been easy, I should apprehend, to open an account. I do not suppose, however, that Mr. Ogilvy's carriage would have broken down if he had taken down 70^. in bank notes, for the purpose of paying those unfortunate people who seem to have been waiting while he was in the room up-stairs, when he was smuggled away in the coach. Now the mam fact stated against the borough by Mr. Ogilvy is that relating to the deposit. It is admitted there was a sum of money demanded of him. The only question is whether that sum of money was demanded of him for one purpose or another. Several witnesses have stated that they asked for a deposit of fifteen hundred or two thousand pounds, for the purpose or guaranteeing the payment of publicans' bills. 308 Mr, Alderson's Speech on the Now I by no means think that was an unfit precaution, considering that Mr. Ogilvy was obliged to go away without paying 'jcl. It is clear that it is the interest of Mr. Ogilvy now to save his honour, to insinuate that it was demanded for an illegal purpose, and there- fore it would have been wrong to deposit it. ' Touch my honour, touch my life. Why, I have 3000?. in my pocket at this moment, but on compulsion I will not produce anything.' ' Why will you not just leave it with A. B. or C. D. ?' ' No ; who can doubt my honour ? I will sooner go away.' In short, it appeared that Mr. Ogilvy, finding he could not get these people to bite without a deposit to secure the publicans, goes away. That is the result of the evidence on both sides. He never comes back again, he never makes his deposit, and never does perform his part of the agree- ment ; and being angry, naturally enough, at being refused, being unwilling to be obliged to admit that he went from Retford, from not being able to make the deposit, he seeks, like other people, to salve it over, by stating that the only reason that he had was, that it might have been deposited for an illegal purpose. My Lords, it is not likely that they should have required it for the purpose stated by Mr. Ogilvy. There is on<^ circumstance in the evidence which shows what was the practice of the borough. Mr. Evans deposited a sum of money for the same purpose. Was that employed for paying the voters ? Certainly not : it was restored to Mr. Evans after the election and before the payment of the voters. Mr. Evans says, and other wit- nesses say, that that money was deposited because certain persons had improperly come to the borough and had run up bills and left the publicans in the lurch. Mr. Kippax distinctly proves that it was retained for no improper purpose, but was restored, Mr. Evans having, as might be expected, discharged his bills. The money was, long before the payment of the voters, restored to him. If Mr. Ogilvy had deposited his 2oooZ. for the security of the publicans, it was not that the publicans should be paid out of it, but that they might have a security for Mr. Ogilvy paying them, or that they should be paid by the persons in whose hands the money was deposited. This is consistent with all the other evidence which your Lordships have heard. Without imputing to Mr. Ogilvy any wilful act of misstatement, it is the sort of evidence which a person would give after the thing had taken place five or six years ago, just to salve over to others the circumstance of the rejection he had met with in the town of East Retford, there having been a great fear that, like Mr. Maddox, he would go away without paying is bills. With respect to the other part of Mr. Ogilvy 's evidence, he is completely contradicted. He says he heard certain cautions, but no person is named by him. He does not pretend to say that the caution was given to more than one or two persons ; and what is stated by Mr. Ogilvy is contradicted by other persons who were East Retford Disfranchisement Bill. 309 present. I do not wish to impute to him anything further than mat ne may have misconstrued or misunderstood ; but I say it is clear lie is incorrect, and that his evidence is nof. HASO; / With the exception, then, of Mr. Hornby, who, I admit, if his SSi^AsSS* proves i bribery ' but who ' J 8ubmit > is not worthy ot belief, there is nothing to touch the last election ; and even if your Lordships believed to the fullest extent every fact Stated by Mr. Hornby, and every fact stated by Mr. Ogilvy, there is nothing charging more than eighteen or twenty voters of East Ketford out of two hundred. That is the only proof of bribery, properly so called: it extends only to eighteen or twenty. I will not undertake to say that I am precisely accurate : it certainly does not extend to more than five or six and twenty. LORD CHANCELLOR. I have referred to an abstract I have made, and 1 think it does not exceed two and twenty. MR. ALDEHSON. Take it so, my Lords, that it does not exceed twenty-two : then I say, the case totally fails as to the last election. mt 1 submit to your Lordships that you will not consider Mr. Ogilvy as accurate, and that you cannot believe Mr. Hornby at all in any part of his evidence affecting this borough. My Lords, these are the circumstances under which this case comes before your Lordships. The principles which ought to govern your Lordships' decision are, that there should be bribery that it should be bribery affecting the majority of the corporate body that it should have been committed at the last election and that it should have extended over a long period of time. There is no bribery at all, not even any improper conduct, beginning longer ago than 1812. There is nothing proved after 1820 by any witnesses, with the exception of Mr. Hornby, whose evidence is no proof whatever. There is no evidence that at any individual election the majority were bribed ; there is no proof that, of the present free- men of the borough, the majority have received money. There is no proof whatever, therefore, I submit, on the present occasion, justifying the passing of this bill. LORD CHANCELLOR. There was a person of the name of Thornton, who died before this inquiry, but there were some docu- ments put in in his handwriting by Mr. Evans. Do you make any observation upon them P MR. ALDEKSON. No, my Lord ; it appears to me they are not evidence upon which your Lordships can rely. They are not evidence on oath. The only reason I have not adverted to those papers is, that I do not consider them to be evidence. And even giving credence to them to the fullest extent, they do not touch the case of bribery at all. This is the account given in by a person of the name of Thornton, whom we have no opportunity of cross- examining respecting a remote period as to which there is no means of obtaining satisfactory evidence, and which is put ;u under circum- 310 Mr. Alderson's Speech on the stances admitting of considerable question. Mr. Evans can give no information about it : it is all out of his knowledge. All he can prove is, that it is in the handwriting of Thornton. It extends only to one election, and that not the last nor the last but one. It is not fortified by any parol evidence whatsoever. It is, indeed, admissible only on the principle, that it is the declaration of a freeman. LOED CHANCELLOR. That is the only principle on which it can be admitted, certainly. ME. ALDERSON. That is unquestionably the only principle on which its admissibility can be contended for ; and it is very hard that anything which any freeman has written on any occasion is to be considered as evidence on which your Lordships are to act. If anybody on a festive occasion cuts a foolish jest about large pockets, the expression of that wish is to be urged before your Lordships as a ground upon which a borough is to be disfranchised. If such declarations of freemen are to be used not only against themselves, but against others, it would be grievous injustice. They may be evidence as against the person himself. By law, your Lordships cannot receive the declaration of A. that B. has committed an offence, until some conspiracy is proved ; and there is no conspiracj' proved to which Mr. Thornton is a party here. In the case of that which is clearly a conspiracy, it .is not till after the conspiracy is established that your Lordships are at liberty to hear evidence of acts of the conspirators as affecting each other ; you must first establish the corpus delicti. It is not for my learned friend to say it is a conspiracy, and then you must receive evidence. I might equally say it is high treason ; I might say it is flat burglary. I trust, therefore, that your Lordships will think, as I have thought, that this very questionable document is not evidence against any person except the person who has written it. It is evidence against Thornton, but against him alone you are at liberty to receive it. It is not evidence against anybody else, because, though it is in the handwriting of Thornton, it is not on oath or subject to cross-examination. My Lords, these are the circumstances of this case. I say, my learned friends have most miserably failed in making out any case in support of this Bill to your Lordships' satisfaction. They have not established bribery they have not shown bribery applicable to the majority of electors at any period they have not proved it to have existed at the last election they have not established that it has existed in the borough for any length of time. It began in 1812 according to the evidence ; it ceased in 1820 according to the testi- mony. There is not a single witness to prove its existence since. My learned friends have had the benefit of a bill of indemnity in violation of all the settled rules of law to enable them to prove crimes against this borough ; but I trust your Lordships will not think it necessary to depart still further from precedent, or from East Retford Disfranchisement Bill. 311 the course of legal decisions, than your Lordships have done, by founding this Bill on conjecture instead of evidence on hypothesis instead of fact. I am much obliged to your Lordships for the patience with which you have heard this case, and my observations upon it ; and I trust that your Lordships are convinced that the case has failed, and that you will, without any further delay, permit us to have recourse to the legitimate mode of returning members to Parliament, which we have exercised for several centuries, and which we trust we shall again be permitted to exercise in the course of a short time. THE END. BAYIU, A!TI> KBWABDS, PRINTERS, CHA2TDOS BTKEET, COYEST GARDES.