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MEMOIR OF THE LIFE 
 
 OF 
 
 ROBERT HENLEY, 
 
 EARL OF NORTHINGTON, 
 
 i 
 LORD HIGH CHANCELLOR 
 
 OF 
 
 GREAT BRITAIN. 
 
 BY 
 
 THE RIGHT HONOURABLE 
 
 ROBERT LORD HENLEY, 
 
 n 
 
 HIS GRANDSON. 
 
 -Me non accipere modo haec a majoribus voluit., 
 verum etiam posteris tradere. 
 
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 LONDON: 
 JOHN MURRAY, ALBEMARLE STREET. 
 
 MDCCCXXXI. 
 
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 TO 
 
 THE RIGHT HONOURABLE 
 
 JOHN EARL OF ELDON, 
 
 TWENTY-FIVE YEARS 
 
 ftortr itngfj iCfjanrfUor of <Grrat Britain, 
 
 THIS 
 
 MEMOIR OF THE LIFE 
 
 OF ONE OF HIS PREDECESSORS, 
 
 is MOST RESPECTFULLY INSCRIBED, 
 
 BY 
 
 HIS GRATEFUL AND OBLIGED SERVANT, 
 
 THE AUTHOR. 
 
 371 
 

 
 . '• \ ' 
 
 

 
 MEMOIR, 
 
 . &c. 
 
 The lives of Eminent Lawyers form an in- 
 teresting study in a country like ours, whose 
 tribunals occupy so much of the public at- 
 tention; and where a considerable portion of 
 the community, from being entrusted with 
 some share in the administration of the law, 
 is in frequent intercourse with its professors. 
 We therefore find that the Profession, though 
 watched with great jealousy in any assump- 
 tion of influence beyond its legitimate sphere, 
 has always been sufficiently popular with the 
 people of England. The great men who 
 rise to distinction in it, are objects of in- 
 terest to the public, which marks their rise, 
 their progress, and their elevation; and de- 
 rives amusement from noticing their pecu- 
 liarities and recording their sayings. 
 
 B 
 
< f * 
 
 - f 
 
 ( o N 
 
 '■ : ' 
 
 It might, therefore, have been expected 
 that, amidst what Dr. Johnson terms the 
 penury of English Biography, the Law would 
 have furnished many interesting exceptions 
 to the generality of his remark. Our spe- 
 cimens, however, of legal biography are far 
 from being either numerous or valuable. 
 We possess, it is true, good contemporary 
 accounts of Hale, of Selden, and of Claren- 
 don ; and the great research and learning of 
 the Editors of the Biographia Britannica 
 have presented us with elaborate lives of 
 Coke, Bacon, and Ellesmere. We have all 
 derived amusement from the rich fund of 
 professional gossip which Roger North gives 
 in the life of his brother, Lord Guildford; 
 and few have perused without delight the 
 polite and elegant Memoir of Lord Chief 
 Justice Wilmot, written by his son. The 
 public has also recently received from Mr. 
 Roscoe some interesting additions to this 
 department of our literature. 
 
 On the other hand, the lives of such emi- 
 nent men as Lord Somers and Lord Hard- 
 wicke have been written in a manner totally 
 
( 3 ) 
 
 unworthy of their high reputations. Of 
 Lord Nottingham, Lord Holt, nay, even 
 of the great Lord Mansfield, we have still 
 but meagre and unsatisfactory accounts ; 
 whilst of the Chancellors Cowper, Harcourt. 
 Macclesfield, King, and Talbot, all consider- 
 able judges and statesmen in their time, and 
 principal actors in the great political events 
 of their day, we have little information be- 
 yond the scanty notices of the Peerage. 
 
 It is far from my intention to rank the 
 subject of the present Memoir with the more 
 prominent names in this illustrious list. I 
 should do no service to his memory were 
 I to assume for him a place by the side of 
 Nottingham, the great father of equity: of 
 Somers, the bright union of the patriot, the 
 statesman, and the magistrate: or of Hard- 
 wicke, the most consummate and faultless 
 judge that ever presided in our tribunals. 
 
 Still, however, it may be no uninteresting 
 study to dwell upon the life of one, who, 
 rising through the gradations of the profes- 
 sion, reached its highest station, and retained 
 it for a space of Nine years with much honour 
 
 b2 
 
( 4 ) 
 
 and credit. If without the commanding 
 genius and immense attainments of some 
 who preceded him, or of one or two who 
 have followed; yet his manly and decisive 
 mind, his clear, strong, and vigorous judg- 
 ment, united to a well-grounded and prac- 
 tical knowledge of his profession, have 
 gained him a great and respectable name 
 among the Chancellors of England. I trust, 
 therefore, that I may be permitted, without 
 further apology or comment, to introduce 
 this short Memoir of his Life to the notice of 
 my readers. 
 
 Robert Henley (afterwards Lord Keeper 
 and Chancellor, and Earl of Northington,) 
 was descended from the ancient family of the 
 Henleys, of Henley in Somersetshire, the 
 elder branch of which was .advanced to the 
 dignity of the Baronetage in 1660. Various 
 other parts of the family appear at different 
 times to have settled in Hampshire, Dorset- 
 shire, and Norfolk.* 
 
 * I have been frequently asked, whether the cele- 
 brated Orator Henley, the theme of so much of Pope's 
 
( 5 ) 
 
 His great grandfather, Sir Robert Henley, 
 was Master of the Court of King's Bench, 
 on the pleas side, which must have been an 
 extremely lucrative situation, as from the 
 profits of it he left to his family a landed 
 estate of above 3000/. a year, part of which 
 consisted of the ground rents of Lincoln's 
 Inn Fields. He acquired the fine estate of 
 the' Grange, in Hampshire ; which, when 
 afterwards in the possession of his descendant 
 the Lord Keeper, Horace Walpole speaks 
 of, in his Letters, with admiration. The 
 house was built for Sir Robert Henley by 
 Inigo Jones, and the same writer, in another 
 part of his works, mentions it as one of the 
 best proofs of his taste, and cites the hall and 
 the staircase adjoining, as beautiful models 
 of the purest and most classic antiquity. 
 The critic, however, was, I suspect, misled 
 by the respect due to the name of Jones. 
 The concurrent testimony of all who remem- 
 ber it as it then was, represent it, notwith- 
 
 wit, was of this family. The connection I find was al- 
 ways disavowed. The Orator was born at Melton 
 Mowbray, of which his father was Vicar. 
 
( 6 ) 
 
 standing the merit of these individual parts, 
 as, upon the whole, a heavy and gloomy 
 structure, utterly unworthy of the great archi- 
 tect. Since then, however, the wealth and 
 taste of Mr. Alexander Baring, the present 
 possessor, and previously of Mr. Drummond, 
 into whose hands it passed on the death of 
 the second Earl of Northington, have so 
 embellished and altered it, that not a vestige 
 of its antient appearance remains. The for- 
 mer of these gentlemen has converted the 
 style of the mansion into the most elegant 
 Grecian, and superadded a conservatory of 
 so splendid a description, that it is alone 
 reputed to have cost many thousand pounds. 
 But while the eye admires this sumptuous 
 achievement of wealth, our feelings cannot 
 but regret that some domestic specimen of 
 Tudor architecture had not been originally 
 adopted, which would have harmonized better 
 with the English beauties of this charming 
 park. 
 
 The third son of this person was also Sir 
 Robert Henley, and sat in the parliament of 
 1679, for the Borough of Andover. He was 
 

 
( 7 ) 
 
 the father of a numerous family, the eldest 
 
 of whom was Anthony Henley. 
 
 The name of Anthony Henley, one of 
 the politest and most accomplished men of 
 his day, frequently occurs in the Memoirs 
 and Correspondence of the Reign of Queen 
 Anne. He was bred at Oxford, where he 
 distinguished himself by an early relish for 
 literature and by the great refinement and 
 elegance of his taste. On coming to Lon- 
 don he was admitted to the friendship and 
 society of the first wits of the time. He 
 was the friend of the Earls of Dorset and 
 Sunderland, and the companion of Swift, 
 Pope, Arbuthnot, and Burnet. " It was 
 thought strange," says his biographer,* " as 
 every one knew what a secret influence he 
 had on affairs in King William's court, that 
 he, who had a genius for anything great as 
 well as anything gay, did not rise in the 
 state, where he would have shone as a poli- 
 tician no less than he did at Will's and 
 Tom's as a wit. But the Muses and plea- 
 
 * Memoirs of Persons who died in 1 71 1 . 8vo. 1712. 
 
( 8 ) 
 
 sure had engaged him. He had something 
 of the character of Tibullus, and, except his 
 extravagance, was possessed of all his other 
 qualities — his indolence, his gallantry, his 
 wit, his humanity, his generosity, his learn- 
 ing, his taste for letters. There was hardly 
 a contemporary author that did not expe- 
 rience his bounty." He was the patron of 
 Garth, who dedicated to him his poem of 
 the Dispensary. He was a frequent contri- 
 butor to the periodical works of the day, 
 especially to The Tatler and The Medley. 
 But his favourite pursuit was music, of 
 which he was so entirely master that his 
 opinion is said to have been the standard of 
 taste. He married Mary, daughter and co- 
 heiress of the Honourable Peregrine Bertie, 
 second son of Montague, Earl of Lindsey, 
 the ancestor of the Dukes of Ancaster, with 
 whom he had a fortune of £30,000. 
 
 On becoming a husband and a father An- 
 thony Henley relinquished the gaieties of 
 fashion, and was chosen member of parlia- 
 ment for Andover in 1698, after which he 
 represented Weymouth and Melcombe Regis 
 
( 9 ) 
 
 till his death. He was always a zealous as- 
 serter of liberty in the House of Commons; 
 and was the mover of the Address to Queen 
 Anne, that she would confer on Hoadley 
 some dignity in the church, as a reward for 
 asserting and vindicating the principles of 
 the Revolution. This made him so odious 
 to the Tory administration, that strong en- 
 deavours were used by them to prevent his 
 return to her last parliament, both at Wey- 
 mouth, and afterwards in the House ; but 
 without effect. 
 
 He died in August, 171 1, leaving three 
 sons: 1st, Anthony; 2d, Robert; and 3d, 
 Bertie, who was in orders, and died unmar- 
 ried in 1700. 
 
 His eldest son was a man of dissipated 
 habits and unbridled wit.* He signalized 
 
 * I have always understood in the family that this 
 was the individual who made himself so notorious by 
 his frolics and profusion ; hut I find from the Biogra- 
 phical Dictionary, that the same character is given of 
 his cousin Anthony Henley, the eldest son of Sir An- 
 drew Henley, Bart, of Bramesley, near Hartley Row, 
 in Hampshire, who is said to have run through a great 
 estate in that and the other western counties. 
 
( io ) 
 
 himself by several vagaries and oddities, 
 which were much talked of at the time, and 
 particularly by a humorous but insolent 
 reply to his constituents, who had desired 
 him to oppose Sir Ptobert Walpole's famous 
 excise scheme. He married Elizabeth, eldest 
 daughter of James, third Earl of Berkeley, 
 but died without issue in 1745. 
 
 Robert Henley, the second son of the 
 first named Anthony Henley, is the subject 
 of the present Memoir. I have not been able 
 to ascertain the precise date of his birth, 
 which must, however, have taken place about 
 the year 1708. He received his education, 
 with Lord Mansfield, at Westminster, to 
 whom he was junior about four years ; but in 
 consequence of the latter having spent some 
 time in travelling on the continent after he 
 had quitted Christ Church, there was but a 
 few months difference between their respec- 
 tive standing at the bar; Lord Mansfield 
 being the senior by three terms. Another 
 distinguished schoolfellow of his was Sir 
 Thomas Clarke, the Master of the Rolls. 
 It is a singular circumstance that the three 
 
( 11 ) 
 
 highest stations in the law were occupied at 
 the same moment by three Westminster men. 
 Lord Northington being Lord Chancellor ; 
 Lord Mansfield, Chief Justice of the King's 
 Bench ; and Sir T. Clarke, Master of the 
 Rolls.* Murray and Clarke were both in 
 college; Henley was of the school. Among 
 the other remarkable persons who were edu- 
 cated there at the same time were Bishop 
 Newton; Stone and Robinson, both succes- 
 sively Primates of Ireland; Johnson, Bishop 
 of Winchester ; and Andrew Stone, sub- 
 governor to George the Third when Prince 
 of Wales. 
 
 Having finished his education at West- 
 minster, Henley was entered at St. John's 
 College, Oxford, on the 19th of November, 
 1724, when he is stated to have been only 
 
 * Bishop Newton remarks, as a still more extraordi- 
 nary circumstance, that out of the twelve judges at that 
 time, five of them should have come from Lichfield 
 school ; Lord Chief Justice Willes, Chief Baron Parker, 
 Mr. Justice Noel, Mr. Justice (afterwards Lord Chief 
 Justice) Wilmot, and Sir Richard Lloyd, Baron of the 
 Exchequer. 
 
( 12 ) 
 
 sixteen years of age. On the 3d of Novem- 
 ber, 1727, he was elected a fellow of All 
 Souls', but not being of founder's kin, was 
 not admitted till the following year. He 
 took his degree of Master of Arts on the 5th 
 of July, 1733. 
 
 He commenced his professional career by 
 entering at the Inner Temple on the 1st of 
 February, 1728, and was called to the bar 
 by that society on the 23d of June, 1732. 
 He was, indeed, admitted of Lincoln's Inn 
 on the 23d of April, 1745, but this was only 
 for the purpose of holding chambers, as he 
 continued of the Inner Temple, of which 
 society he became a bencher in Michaelmas 
 Term, 1751. 
 
 Murray, we are told, " when he first came 
 to town drank Champagne with the Wits." 
 His classic tastes and literary attainments, 
 says a biographer, led him to prefer the so- 
 ciety of scholars and men of genius, to that 
 of his professional brethren. Henley, also, 
 was not without his potations, but they were 
 the juice of a more powerful vintage, and 
 perhaps flowed in more copious streams. 
 
( 13 ) 
 
 Besides, though both a scholar and a wit, his 
 conversation was too boisterous and jovial to 
 be endured in the circles where the accom- 
 plished Murray shone. A few All Souls 
 friends, or some congenial spirits of the 
 Temple, were the companions, after the la- 
 bours of the day, of his convivial hours. 
 The truth is, that drinking was at that time 
 the ruling vice and bane of society, and 
 Henley was not at his early period of life 
 fortunate enough to escape the general con- 
 tagion. His errors, how r ever, were no more 
 than what most high spirited and ardent 
 youths in some way or other fall into at their 
 first entrance into life, and he soon recovered 
 from their influence ; but many a severe fit 
 of the Gout was the result of his early in- 
 dulgencies. When suffering from its effects, 
 he was once overheard in the House of Lords 
 to mutter after some painful walks between 
 the Woolsack and the Bar, " If I had known 
 that these legs were one day to carry a 
 Chancellor, I'd have taken better care of 
 them when I was a lad." 
 
 His family connections naturally led him 
 
( 14 ) 
 
 to make choice of the Western Circuit, which 
 he cultivated with great assiduity, and with 
 such success, that he rose in due time to be 
 its leader. Bishop Newton speaks of him 
 as having evinced lively parts and a warm 
 temper, but being, like many others of his 
 profession, too apt to take liberties in exa- 
 mining witnesses. He relates an anecdote 
 of his having cross-examined a Quaker, of 
 the name of Reeve, at Bristol, with so 
 much raillery and effect that, forgetting the 
 pacific tenets of his sect, he insisted upon 
 an apology, which Henley, sensible that 
 he had exceeded the bounds of professional 
 license, very frankly made. Their connec- 
 tion, however, did not terminate here ; for 
 many years afterwards, when he was Lord 
 Chancellor, having had a couple of pipes of 
 Madeira consigned to him at Bristol, he re- 
 membered his friend Reeve, and employed 
 him to pay the freight and duty, and send 
 them to the Grange. " The winter follow- 
 ing," says the Bishop, " when Mr. Reeve was 
 in town, he dined at the Chancellor's, with 
 several of the nobility and gentry. After 
 
( 15 ) 
 
 dinner, the Chancellor related the whole story 
 of his first acquaintance with his friend Reeve, 
 and of every particular that had passed be- 
 tween them, with great good humour and 
 pleasantry, and to the no little diversion of 
 the company." 
 
 Henley, at this period of his life, passed 
 most of his vacations and leisure hours at 
 Bath, which in those days was in its zenith 
 of fashion and gaiety. He became Recorder 
 of it, and gained such an influence in its 
 select corporation, that he managed to repre- 
 sent the city during the whole time that he 
 continued in the House of Commons, which 
 was from the year 1747 until his elevation to 
 the seals in 1757. 
 
 It was here that he first formed the ac- 
 quaintance of the lady whom he was after- 
 wards fortunate enough to marry, and to 
 whom he was indebted for the enjoyment, 
 during the remainder of his life, of that first 
 of human blessings — a serene and happy 
 home. She was the daughter and co-heiress 
 of Sir John Huband, of Ipsley, in Warwick- 
 shire, Bart., the last of a " time-honoured 
 
( 16 ) 
 
 race," whom Dugdale states to have been 
 lords of that manor in lineal succession from 
 the Conquest. She was beautiful, but though 
 extremely young, had from an illness so en- 
 tirely lost the use of her limbs that she was 
 only able to appear in public wheeled about 
 in an arm-chair. Henley, attracted by the 
 charms of her face and conversation, soon 
 found his acquaintance ripen into a tender 
 and lasting attachment. The waters pro- 
 duced so complete and effectual a cure that 
 Miss Huband was not only enabled to com- 
 ply with the custom of the place, by hanging 
 up her votive crutches to the nymph of the 
 spring, but to the end of a long life enjoyed 
 a most perfect state of health. She gave her 
 hand in the year 1743 to the suitor who had 
 so sedulously attended her. 
 
 The ceremony was performed by his dis- 
 tinguished schoolfellow Bishop Newton, of 
 which that prelate in his Memoirs has the 
 following agreeable recollection. " It hap- 
 pened that he and his lady were married by 
 Mr. Newton, at the chapel in South Audley 
 Street, at which time they were a very hand- 
 
( 17 ) 
 
 some couple. Several years afterwards Mr. 
 Newton went one day into Lincoln's Inn 
 Hall while the court was sitting, to speak 
 with Mr. Murray upon some business ; Mr. 
 Henley being next to him and reading a brief. 
 When he had dispatched his business and 
 was coming away— * What,' said Murray to 
 Henley, ' have you forgotten your old friend 
 Newton, or have you never forgiven the great 
 injury that he did you?' Upon which he 
 started as out of a dream, and was wonder- 
 fully gracious to his old schoolfellow, acknow- 
 ledging that he owed all his happiness in life 
 to him. And, indeed, he had good reason to 
 be happy in his wife and family." 
 
 The newly married couple started with but 
 a slender means. Henley was still but a 
 younger brother; and the principal part of 
 his income arose from his business, which 
 had not yet become considerable. The exact 
 amount of his wife's fortune I have no means 
 of knowing, but it was certainly small. It 
 consisted, however, of a share of the paternal 
 acres of Ipsley, as I find by a case laid be- 
 fore counsel upon the construction of Lord 
 
 c 
 
( 18 ) 
 
 Northington's will, that nearly thirty years 
 afterwards he was in treaty for the disposal 
 of it. Their first residence was a small 
 house in Great James Street, Bedford Row, 
 where they lived the three first years of their 
 marriage in great content, and in a style con- 
 genial with the simplicity and modesty of their 
 tastes. Indeed, the distinguishing feature of 
 Henley's character was, that usual mark of 
 superior minds, Simplicity. His aversion to 
 show and display was extreme; and though 
 he took care that the necessary splendour of 
 the high offices which he afterwards filled, 
 should he provided with a free and liberal 
 spirit, yet he always felt the trappings of his 
 station as an incumbrance which it was his 
 duty to endure, rather than a gratification 
 that flattered his vanity. Both he and his 
 wife would often after he became Lord Chan- 
 cellor and Lord Lieutenant of Hampshire, 
 look back with pleasing recollection from 
 the Grange and Grosvenor Square to the 
 freedom and frugality of their early estab- 
 lishment. 
 
 Two years after Henley's marriage his elder 
 
( 19 ) 
 
 brother, Anthony, died without issue, upon 
 which the paternal estates in Hampshire and 
 Dorset, together with the house in Lincoln's 
 Inn Fields, descended upon him. The estate, 
 I have heard in the family, he found much 
 encumbered by his elder brother; but the 
 prosperity and good management of a few 
 years, not only restored it, but greatly in- 
 creased it in extent and value. The town 
 house, in which he continued to reside for a 
 lono- time after he had the seals, was on the 
 south side of Lincoln's Inn Fields, and is 
 the same which is now occupied by the Col- 
 lege of Surgeons. 
 
 In the year 1747, a new sphere was opened 
 to his energies and ambition, by his return 
 to parliament for Bath, and he seems to have 
 lost few opportunities of making himself use- 
 ful to the party whose politics he espoused. 
 In the publication of the Parlamentary De- 
 bates, indeed, his name occurs but rarely. 
 It appears, however, from Horace Walpole's 
 Journal, and from contemporary Memoirs 
 and Letters, that he was a frequent and active 
 debater. He was a firm and constant sup- 
 
 c2 
 
( 20 ) 
 
 porter of the politics of Frederick, Prince of 
 Wales, whose party was designated by the 
 appellation of Leicester House. The legal 
 portion of this phalanx consisted, besides 
 himself, of Sir Thomas Bootle, the Chancel- 
 lor of the Duchy, Dr. Lee, Mr. Forrester, 
 and Mr. Hussey; but the most prominent 
 lawyer of the party, perhaps, was the Hon. 
 Hume Campbell, afterwards Earl of March- 
 mont, who, during the former part of the 
 period we allude to, was attorney general to 
 the prince, but resigned that post when his 
 royal master organized his last opposition. 
 Walpole, with his usual malevolence, says, 
 that he was supposed to have received a con- 
 siderable pension for his secession. This no- 
 bleman, who is now best known as the friend 
 of Pope, and as the individual to whom John- 
 son applied for materials in writing the poet's 
 life, concluded his professional career by ob- 
 taining the office of Lord Registrar of Scot- 
 land for life,* 
 
 * The public will soon be gratified by the publication 
 of Selections from the Papers of the Earls of March- 
 mont, by Sir G. H. Rose. 
 
( 21 ) 
 
 When the death of the Prince of Wales 
 in March, 1751, deprived the party of its 
 head, several members of it, like Dodington, 
 seized the opportunity of deserting their 
 ranks, and made their submission to the 
 court. Mr. Henley, however, continued 
 firmly attached to the family of his royal 
 patron, and by this adherence to his party 
 during a period of great discouragement and 
 extensive defection, acquired the lasting 
 esteem and favour of the Princess Dowager. 
 To his conduct at this crisis may be attri- 
 buted the more brilliant part of his subse- 
 quent career; for while he laboured during 
 the remainder of that reign under the dis- 
 pleasure of the sovereign, which was evinced 
 in a very marked way by his being so long 
 debarred from the honours which usually 
 accompany the seals, he laid the founda- 
 tion of that confidence and regard in the 
 breast of the Heir Apparent, which he en- 
 joyed without a check during the whole of 
 his public life. When the young prince's 
 household was established he was chosen to 
 be his solicitor general, and shortly after- 
 
( 22 ) 
 
 wards was promoted to be attorney general. 
 It was in consequence of this appointment 
 that he was made king's counsel. 
 
 In May, 1756, an important vacancy was 
 occasioned in the profession by the sudden 
 death of Lord Chief Justice Ryder, who was 
 carried off while the patent for his peerage 
 was actually in preparation.* Murray, in 
 conformity to his .uniform assertions, that he 
 meant to rise by his profession and not 
 through the House of Commons, insisted 
 upon his right as attorney general to succeed 
 to the vacant post. Such, however, was the 
 state of distress to which the Duke of New- 
 castle had been reduced by the disgraceful 
 loss of Minorca, and the affair of Admiral 
 Byng, that he could not consent to forego so 
 accomplished and efficient a support in the 
 House of Commons. Accordingly great 
 
 * The family was not ennobled till twenty years 
 afterwards, when the promise made to the father was 
 thus kept to the son, which gave the opportunity of' 
 adopting one of the happiest and most beautiful 
 mottos that ever has been chosen. " Servata fides 
 cineri." 
 
( 28 ) 
 
 offers were made to him, provided he would 
 decline, if it were but for eight months, the 
 chief justiceship and the peerage which was 
 to accompany it. Walpole says, that they 
 offered him the Duchy of Lancaster for life, 
 with a pension of £2000 a year, permission 
 to remain attorney general, and the reversion 
 of the first tellership of the exchequer for his 
 nephew, Lord Stormont. At the beginning 
 of October, they bid up to £6000 per annum 
 in pension. They pressed him to stay but a 
 month ; nay, only to defend them on the first 
 day. 
 
 This statement is obviously tinctured with 
 Walpole's usual spite against the Duke of 
 Newcastle, and certainly exaggerated. It is, 
 however, clear, from the circumstance of the 
 minister keeping so important a post as the 
 chief justiceship of England vacant, during a 
 period which comprized a whole term and a 
 circuit, that some difficult and important ne- 
 gotiation was depending respecting it. Mur- 
 ray at last peremptorily declared that if he 
 was not to be chief justice, neither would he 
 
( 24 ) 
 
 be any longer attorney general, and accord- 
 ingly, after the situation had been vacant up- 
 wards of five months, he was elevated to it 
 on the 6th of November, 1756. 
 
 The resignation of the Duke of Newcastle 
 and the establishment of what is usually 
 termed Mr. Pitt's first ministry, brought with 
 them several important legal changes. The 
 most considerable of these was the retire- 
 ment of Lord Hardwicke, who had been 
 chancellor for more than twenty years, and 
 had administered the duties of his high sta- 
 tion with an ability that never had been ex- 
 ceeded by any of his predecessors. I cannot 
 resist quoting the words of one who had 
 practised for many years before him, not on 
 account of any extraordinary powers of de- 
 scription or felicity of diction, but as having 
 been often struck by the remarkable simi- 
 larity which this sketch of his character 
 bears to that of one of his most illustrious 
 successors now living. This eminent person 
 has closely resembled him, not only in the 
 great length of time during which he held 
 
( 25 ) 
 
 the seals,* but in the more important parti- 
 culars of wisdom, patience, sagacity, and 
 acuteness, in the vast extent of his learning, 
 and, most of all, in that condescending gen- 
 tleness and affability of manner, which con- 
 ciliated the affections of all who had the 
 happiness of practising before him, and won 
 the more irresistably as it was the spontane- 
 ous overflow of a kind, humble, and benevo- 
 lent heart. 
 
 " To Lord Hardwicke," says that writer,f 
 " I am indebted for the little knowledge I 
 may have obtained in the profession; and I 
 cannot let this opportunity pass without ex- 
 pressing my grateful remembrance of the 
 encouragement, which, in common with other 
 young gentlemen at the bar, I experienced 
 from him. That noble person was indeed 
 
 * The three chancellors who have held the seals the 
 longest are — Lord Ellesmere, who held them twenty 
 years within a few days ; Lord Hardwicke, twenty years 
 and nine months ; and Lord Eldon, during the two 
 periods of his heing in office, twenty-five years within a 
 few days. 
 
 f Ambler's preface to his Reports. 
 
( 26 ) 
 
 eminently qualified for the high office which 
 he filled for more than twenty years, with 
 the greatest reputation to himself and satis- 
 faction to the public. His knowledge was 
 sound and extensive; the clear and compre- 
 hensive manner in which he delivered his 
 opinions could not but make the dullest 
 hearer sensible of their weight. He shone 
 in those chief characteristics of a judge, tem- 
 per and patience. He heard all with atten- 
 tion and then decided with readiness, en- 
 forcing his decrees with such convincing 
 reasoning as equally gave information to the 
 bar and satisfaction to the parties. Etiam 
 quos contra statuit cequos placatosque dimisit. 
 He greatly encouraged industry in young 
 gentlemen, by showing particular attention 
 to their arguments, and noticing what would 
 admit of approbation. He was engaging and 
 polite in his manner, and yet failed not in 
 every point to support the dignity of his 
 office. He commanded universal esteem and 
 reverence." 
 
 Mr. Henley was now soon to reap, in the 
 various changes of the day, the fruit of his 
 
( 27 ) 
 
 long attachment to his political friends. It 
 appears from Lord Waldegrave's account, (an 
 indubitable authority on this point,) that the 
 party of Leicester House, which, under the 
 protection of the Prince of Wales had been 
 growing strong and formidable, immediately 
 after his decease became languid and inani- 
 mate. The princess dowager apparently 
 submitted herself entirely to the guidance of 
 the king, and the Duke of Newcastle was 
 her favourite minister. In the course of the 
 year 1755, however, a sudden change took 
 place in the conduct both of the princess and 
 the heir apparent. The Duke of Newcastle 
 was evidently slighted, and Mr. Pitt being 
 introduced by the great favourite Lord Bute, 
 a formal arrangement was made that Mr. 
 Pitt and his friends should support the prin- 
 cess and her son. From this time the party 
 of Leicester House, though not ranging itself 
 as formerly in avowed and indecorous oppo- 
 sition to the court, being thus fortified by the 
 accession of Mr. Pitt and his personal fol- 
 lowers, presented a phalanx made formidable 
 by the circumstance of the public men of the 
 
( 28 ) 
 
 day being split into various selfish and venal 
 factions. 
 
 It is painful to pursue through the pages 
 of Dodington and Waldegrave, the tissue of 
 vulgar intrigues, from which not even the 
 lofty spirit of Mr. Pitt was free, and which so 
 pre-eminently disgrace the annals of this 
 period. The result of an abundance of shuf- 
 fling, bullying, and deception, was, that the 
 king was reluctantly obliged to submit to Mr. 
 Pitt's demands, and that a new administration 
 was formed, composed in a great measure of 
 his friends. 
 
 In the negotiations for the formation of this 
 ministry, the most strenuous endeavours were 
 made to induce Lord Mansfield to accept the 
 seals ; but his attachment to the Duke of 
 Newcastle, and his disinclination to a political 
 life, led him to decline the office. As no 
 immediate successor presented himself, the 
 usual expedient of a weak and unsettled 
 ministry, of putting the great seal in commis- 
 sion, was adopted during this troubled season. 
 The three Lords Commissioners were Sir 
 John Willes, Chief Justice of the Common 
 
( 29 ) 
 
 Pleas; Sir John Eardley Wilmot, then a 
 Judge of the King's Bench, and afterwards 
 Chief Justice of the Common Pleas ; and Sir 
 Sidney Stafford S my the, a Baron of the Ex- 
 chequer, and afterwards Lord Chief Baron. 
 
 Mr. Henley, having been previously 
 knighted, was appointed to the office of at- 
 torney general, vacated by Lord Mansfield's 
 promotion ; Charles Yorke was made soli- 
 citor general, in the room of Sir Richard 
 Lloyd, who was displaced, but afterwards 
 made a Baron of the Exchequer. During 
 this short administration, and the period of 
 uncertainty and negotiation which succeeded 
 it, Sir Robert Henley continued as attorney 
 general. In this situation, conformably to 
 what had heretofore been usual upon promo- 
 tion to the offices either of attorney or solicitor 
 general, he left the King's Bench, where he 
 had been in the first practice, and removed 
 into the Court of Chancery. He was, how- 
 ever, not long to remain there in a subordi- 
 nate situation. 
 
 Mr. Pitt's administration had been no 
 sooner formed than the king made no secret 
 
( 30 ) 
 
 of his aversion to it, and entered into active 
 and almost undissembled negotiation to over- 
 throw it. As the minister did not choose to 
 assist the measures of his enemies by his 
 resignation, he was actually turned out in 
 April, 1757, and the king knocked at every 
 door to obtain an administration that would, 
 at least, not be personally disagreeable to him. 
 He even went so far as to confide the forma- 
 tion of a new administration to Lord Walde- 
 grave, who attempted to form a government 
 with Fox, to the exclusion of Pitt and Lord 
 Temple, and without the present aid of the 
 Duke of Newcastle. The king, however, 
 soon saw that such a measure would not suc- 
 ceed, and removed the negotiation into Lord 
 Mansfield's hands, who was to treat with the 
 duke and Pitt on the terms of excluding 
 Temple and including Fox. But Lord 
 Mansfield's success was no better than that of 
 his predecessor's, and the credentials were at 
 last transferred to the able and experienced 
 management of Lord Hardwicke.* Thus 
 
 * See the interesting review of Lord Waldegrave's 
 Memoires in the Quarterly Review, No. L. where all 
 these intrigues are neatly condensed. 
 
( 31 ) 
 
 was effected the coalition administration of 
 1757. The high contracting parties were 
 Mr. Pitt with Leicester House, the Pelhams, 
 and the Tories. Unlike its more celebrated 
 namesake of 1783, it brought no obloquy 
 upon the principal actors in it, and was viewed 
 with indifference by the nation. Indeed, the 
 great disputes in politics had long since 
 degenerated from fundamental principles of 
 government, or important systems of policy, 
 into discreditable squabblings for the emolu- 
 ments of office. 
 
 In the discussions which preceded the final 
 arrangement of the administration, consider- 
 able difficulty was experienced as to the mode 
 in which the great seal should be disposed of. 
 Lord Mansfield was again tempted with the 
 golden bait, but he preferred to continue in 
 his less elevated but more secure station. 
 The eye of the public was, therefore, natu- 
 rally turned upon the individuals who were 
 then holding it in commission. 
 
 In the opinion of many, says his biogra- 
 pher, Sir John Eardley Wilmot was the 
 person to whose custody it would shortly be 
 
( 32 ) 
 
 committed; an event, the possibility of which 
 that modest and excellent person seems to 
 have regarded with the greatest apprehen- 
 sion. In a letter to his brother, he says, " the 
 acting junior of the commission is a spectre 
 I started at, but the sustaining the office 
 alone I must and will refuse at all events. I 
 will not give up the peace of my mind to any 
 earthly consideration whatever. Bread and 
 water are nectar and ambrosia compared with 
 the supremacy of a court of justice." 
 
 It is, however, certain that the offer was 
 not made to him at this juncture, though 
 afterwards in the year 1770, on the resigna- 
 tion of Lord Camden and the death of Mr. 
 Yorke, the Duke of Grafton tendered the 
 seals to him for his acceptance ; he, however, 
 declined them ; and in the same year, when 
 the offer was repeated by Lord North, he 
 persisted in his modest but firm refusal. The 
 highest place in his profession had few charms 
 for one who so deeply loved the calm plea- 
 sures of private life. 
 
 Lord Mansfield having been found inexora- 
 ble to all the entreaties of the negotiators, 
 
( 33 ) 
 
 the person fixed upon was the first Lord 
 Commissioner, Chief Justice Willes. The 
 offer, however, was with the title of Lord 
 Keeper only, without a peerage or a retiring 
 pension.* This proposal he thought fit to 
 decline, in hopes of more honourable and 
 advantageous terms. 
 
 The refusal of Willes, however, did not 
 delay the course of the ministerial arrange- 
 ments, which drew to a close without even 
 a repetition of the offer. He was a sound 
 lawyer; and had filled the post of Attorney 
 General, but he seems never to have taken 
 
 * There is a wretched and malevolent work, purport- 
 ing to be An Essay on the Life and Character of Philip 
 Earl of Hardwicke, by R. Cooksey, Esq. of the Inner 
 Temple, against which the reader should be cautioned ; 
 the author asserts that Lord Hardwicke, in conducting 
 the negotiation, had agreed with Willes that a peerage, 
 pension, and tellership of the Exchequer should, as of 
 course, attend the appointment, but that he represented 
 these demands to the king as unreasonable and im- 
 proper to be granted, which occasioned his majesty 
 to enquire whom else these negotiators had to recom- 
 mend, and that upon that Henley was proposed, as 
 much to his own surprize as to that of the profession. 
 
 D 
 
( 34 ) 
 
 an active part in politics, and he was not at 
 this juncture thought of sufficient importance 
 to receive any higher offer for his services. 
 The Duke of Newcastle had in the course of 
 the arrangements pressed upon Mr. Pitt, as 
 the King's personal request, that Lord Hard- 
 wicke should have a seat in the cabinet. Mr. 
 Pitt consented on certain conditions ; and he 
 then urged it as a stipulation which had been 
 made on the part of Leicester House, that 
 Sir Robert Henley should have the Seals as 
 the reward of his long and faithful adherence 
 to its politics. Though he was personally 
 unacceptable both to the King and the Pel- 
 hams, it was not thought fit to resist this 
 claim, and accordingly the vacant office was 
 conferred upon him. 
 
 There is an amusing anecdote respecting 
 this transaction current in the profession, and 
 which the late Lord Ellenborough used to 
 relate with his characteristic humour. Imme- 
 diately after Willes had refused the Seals, 
 Henley called upon him at his villa, and 
 found him walking in his garden, highly in- 
 dignant at the affront which he considered 
 
( 35 ) 
 
 that he had received in an offer so inadequate 
 to his pretensions. After entering into some 
 detail of his grievances, he concluded by 
 asking whether any man of spirit could, un- 
 der such circumstances, have taken the Seals; 
 adding, " Would you, Mr. Attorney, have 
 done so?" Henley thus appealed to, gravely 
 told him that it was too late to enter into 
 such a discussion, as he was then waiting 
 upon his Lordship to inform him that he had 
 actually accepted them. 
 
 Lord Waldegrave states in his Memoirs, 
 that Sir Robert Henley obtained with his 
 elevation the grant of a retiring pension and 
 a reversion of a teller ship of the Exchequer. 
 This, however, is a mistake : he accepted the 
 Seals upon the same terms only on which 
 Willes had refused them — a daring step in 
 those days, before the legislature had pro- 
 vided a retiring pension as a refuge from the 
 caprices of fortune and the uncertainty of 
 party. Whether he considered that his pri- 
 vate fortune would be sufficient for his wishes 
 in case he were to quit office ; or had deter- 
 
 d 2 
 
( 36 ) 
 
 mined in that event, like Pemberton,* to re- 
 turn to his practice at the bar; or whether, 
 as is most probable, in the hurry of ambition, 
 and amidst the calls of party, he thought 
 little of the future, but fixed only his eyes on 
 the splendid prize before him, it is now im- 
 possible to determine. On the 30th of June, 
 1757, he was sworn into the office of Lord 
 Keeper of the Great Seal. 
 
 His new and elevated situation, however, 
 brought with it no small degree of difficulty 
 and anxiety. To follow, as his almost immedi- 
 ate successor, the great and accomplished ma- 
 gistrate who had held the Seals for so many 
 years with such extraordinary reputation, 
 was in itself no enviable task. Sir Robert 
 Henley had besides the mortification of having 
 to preside for nearly three years in the House 
 of Lords as a commoner, while the office ot 
 directing that assembly when sitting in its 
 judicial capacity, devolved exclusively upon 
 Lord Hardwicke and Lord Mansfield. Nei- 
 
 * Pemberton, after having been chief justice, first of 
 the King's Bench and then of the Common Pleas, upon 
 being displaced, practised for many years at the bar. 
 
( 37 ) 
 
 ther of these noble persons were connected 
 with him either by personal or political con- 
 nections, and both of them regarded his ele- 
 vation with no favourable aspect. 
 
 Lord Hardwicke's strong personal influ- 
 ence over George II., and the monarch's 
 natural jealousy of Henley's connection with 
 Leicester House, would probably have ex- 
 cluded him from the Peerage during the re- 
 mainder of that reign. It was to the acci- 
 dent of Lord Ferrers's trial that he owed his 
 immediate elevation to it. It was thought 
 proper that the first law officer of the Crown 
 should on that occasion, as usual, preside as 
 Lord High Steward. He was accordingly, by 
 letters patent bearing date the 27th of March, 
 1760, created Baron Henley, of the Grange, 
 in the county of Southampton. 
 
 Notwithstanding his elevation to the Peer- 
 age, he still, however, continued to hold the 
 Great Seal, with the title of Lord Keeper. 
 It is a common error, and one which even 
 learned members of the profession frequently 
 fall into, that the designation of the person 
 holding the Great Seal depends upon his 
 
( 38 ) 
 
 rank ; and that if a commoner in that situa- 
 tion, he is Lord Keeper; if a peer, Lord 
 Chancellor. This, however, is entirely erro- 
 neous, as the style of the officer depends 
 upon the title with which the king is pleased 
 to deliver to him the Great Seal. The two 
 officers are by act of parliament of precisely 
 the same power, dignity and station.*' Thus, 
 since Henry VIII.'s time, Sir Thomas Moore, 
 Sir Richard Rich, Sir Thomas Bromley, Sir 
 Christopher Hatton, though all commoners, 
 were Lords Chancellors: while, on the other 
 hand, Lord Coventry and Lord Guildford; 
 Goodrick, Bishop of Ely ; Gardiner of Win- 
 chester ; Archbishop Williams, and as we see 
 in the present instance, Lord Henley, were 
 Lords Keepers, being peers of parliament. 
 However, notwithstanding the statute, there 
 has, in fact, always been a tendency to con- 
 
 * The 5 Eliz. c. 1 8, for declaring the authority of the 
 lord keeper of the great seal and the lord chancellor to 
 be one, enacts and declares that the keeper of the great 
 seal hath always had, and of right ought to have, like 
 place, authority, pre-eminence, jurisdiction, execution of 
 laws, &c. as the Lord Chancellor of England. 
 
( 39 ) 
 
 sider the office of Lord Keeper as the inferior 
 office, there being many promotions, like Sir 
 Thomas Audley, Lord Ellesmere, Lord Ba- 
 con, Lord Nottingham, Lord Somers, Lord 
 Harcourt, and this of Lord Northington, 
 from the office of Lord Keeper to that of 
 Chancellor, (generally also made at the time 
 when the party was elevated to the peerage, 
 but not one of a Lord Chancellor becoming 
 Lord Keeper. 
 
 This memorable trial took place in West- 
 minster Hall before the House of Peers, on 
 the 16th of April, 1760, and the two fol- 
 lowing days. It excited great interest at 
 the time, and has since become a leading 
 authority whenever a question arises upon 
 the extent or degree of mental derangement 
 which can absolve a prisoner from legal re- 
 sponsibility for acts of violence and atrocity. 
 Earl Ferrers had been divorced from his 
 wife by act of parliament, and the steward 
 of the family, whose name was Johnson, had 
 taken part with the Countess in that proceed- 
 ing, and conducted the bill through both 
 houses. The Earl consequently wished to 
 
(40') 
 
 turn him out of a farm which he occupied, 
 but the estate being in trust, Johnson was 
 supported by the trustees in the possession of 
 it. There were also differences respecting coal 
 mines, and in consequence of both transac- 
 tions Lord Ferrers took up a most violent 
 resentment against him. Having for some 
 time, however, dissembled his anger under 
 an appearance of great good humour, he 
 prevailed upon the unhappy man to come to 
 his house, having previously sent the family 
 and most of the servants out of the way. 
 He then tendered to Johnson a paper for his 
 signature, containing what he termed a con- 
 fession of his villainy, and on his refusal to 
 sign it, he shot him, while on his knees im- 
 ploring mercy. Lord Ferrers's conduct after 
 the fatal act demonstrated from many cir- 
 cumstances that he was conscious both of 
 the magnitude and of the consequences of 
 his crime. And though in compliance with 
 the wishes of his friends he permitted the 
 defence of insanity to be set up, yet he was 
 ultimately ashamed of it and disavowed it; 
 having both by the acuteness of his argu- 
 
( 11 ) 
 
 merits and the intelligence of his questions to 
 
 the witnesses, completely confuted his own 
 defence. 
 
 Both the Attorney General (Pratt, after- 
 wards the great Lord Camden,) and the Soli- 
 citor General (Charles Yorke) appear to have 
 conducted the prosecution with great force 
 and ability. The peroration of the reply of the 
 latter is very remarkable. .After commenting 
 at length upon the nature of the defence of 
 insanity, he proceeds as follows: " My Lords, 
 in some sense every crime proceeds from 
 Insanity. All cruelty, all brutality, all re- 
 venge, all injustice is Insanity. There were 
 philosophers in ancient times who held this 
 opinion as a strict maxim of their sect; and 
 my Lords, the opinion is right in philosophy, 
 but dangerous in judicature. It may have a 
 useful and a noble influence to regulate the 
 conduct of men, to control their impotent 
 passions, to teach them that virtue is the 
 perfection of reason, as reason itself is the 
 perfection of human nature; but not to ex- 
 tenuate crimes, nor to excuse those punish- 
 ments which the law adjudges to be their due." 
 
( 42 ) 
 
 Lord Erskine, in his profound and luminous 
 disquisition on the subject of insanity on 
 Hadfield's trial, has commented with irre- 
 sistible force upon the circumstances of this 
 extraordinary case. He there triumphantly 
 established the true distinction to be applied 
 in cases of this nature, and the subsequent 
 practice of the most enlightened judges has 
 sanctioned and adopted it. It may now be 
 considered as the established principle, that 
 it is not every departure from sound reason, 
 though sufficient to deprive an individual of 
 the management of his concerns, that will 
 deliver him from an indictment for murder or 
 other criminal violence ; but that the act itself 
 must have been committed under the domi- 
 nion of morbid delusion. Immunity from pu- 
 nishment cannot be extended to those persons 
 whose insanity is without delusion, however 
 strongly characterized by violence, turbulent 
 passion, or inconsistency. 
 
 Horace Walpole's account of the trial is 
 one of the most lively of his sallies, though 
 deformed by indiscriminate abuse of every 
 one, great or good, that comes within reach 
 
( 43 ) 
 
 of his satire. " Who at the last trials," he 
 says, " would have believed a prophecy that 
 the three first men at the next should be 
 Henley the Lawyer, Bishop Seeker, and 
 Dick Grenville." * He notices with much 
 spleen the want of dignity of the Lord High 
 Steward. " The judge and criminal," he 
 observes, " were far inferior to those you 
 have seen.f For the Lord High Steward he 
 neither had any dignity, nor affected any. 
 Nay, he held it all so cheap, that he said at 
 his own table t'other day, ' I will not send 
 for Garrick and learn to act a part.' 
 
 It is difficult to determine what degree of 
 credit can be given to the representations of 
 such a wholesale dealer in detraction. The 
 truth of the charge cannot now be ascer- 
 tained, nor indeed is it a very serious one if 
 true. It must, however, be admitted that the 
 observation about Garrick bears strong in- 
 ternal evidence of authenticity. But what- 
 ever may have been the Lord High Steward's 
 
 * Lord Temple, who as Privy Seal took precedence 
 of Dukes. 
 
 f Alluding to the rebel peers in 1745. 
 
( 44 ) 
 
 outward demeanour, the more important 
 parts of his duty appear to have been per- 
 formed with a weight and dignity suitable to 
 the occasion. The sentence in which judg- 
 ment of death was pronounced upon the un- 
 happy prisoner, is one of the best specimens 
 of judicial eloquence in existence. It is at 
 once grave, simple, dignified, and affecting.* 
 As it is very short, it may not be improper to 
 present the reader with it at length. 
 
 " Lawrence Earl Ferrers, 
 
 " His Majesty, from his royal and 
 equal regard to justice, and his steady atten- 
 tion to our constitution, (which hath endeared 
 him in a wonderful manner to the universal 
 duty and affection of his subjects,) hath com- 
 manded this inquiry to be made, upon the 
 blood of a very ordinary subject, against your 
 
 * It is singular that Mr. Justice Buller, in pro- 
 nouncing judgment of dcatli on Donnellan, adopted 
 several sentences from Lord Northington's address 
 verbatim. 
 
( 45 ) 
 
 Lordship, a peer of this realm. Your Lord- 
 ship hath been arraigned; hath pleaded and 
 put yourself on your peers, and they, (whose 
 judicature is founded and subsists in wisdom, 
 honour, and justice,) have unanimously found 
 your Lordship guilty of the felony and mur- 
 der charged in the indictment. 
 
 " It is usual, my Lord, for courts of justice, 
 before they pronounce the dreadful sentence 
 ordained by the law, to open to the prisoner 
 the nature of the crime of which he is con- 
 victed; not in order to aggravate or afflict, 
 but to awaken the mind to a due attention to, 
 and consideration of the unhappy situation 
 into which he hath brought himself, 
 
 " My Lord, the crime of which your Lord- 
 ship is found guilty, murder, is incapable of 
 aggravation ; and it is impossible but that 
 during your Lordship's long confinement you 
 must have reflected upon it, represented to 
 your mind in its deepest shades, and with all 
 its train of dismal and detestable consequences. 
 
 " As your Lordship hath received no bene- 
 fit, so you can derive no consolation from that 
 refuge you seemed almost ashamed to take 
 
( 46 ) 
 
 under a pretended insanity ; since it hath 
 appeared to us all, from your cross-examina- 
 tion of the King's witnesses, that you recol- 
 lected the minutest circumstances of facts 
 and conversations to which you and the wit- 
 nesses only could be privy, with the exact- 
 ness of a memory more than ordinarily sound; 
 it is, therefore, as unnecessary as it would be 
 painful to me, to dwell longer on a subject so 
 black and dreadful. 
 
 " It is with much more satisfaction that I 
 can remind your Lordship that, though from 
 the present tribunal before which you now 
 stand you can receive nothing but strict and 
 equal justice ; yet you are soon to appear be- 
 fore an Almighty Judge, whose unfathomable 
 wisdom is able, by means incomprehensible 
 to our narrow capacities, to reconcile justice 
 with mercy. But your Lordship's education 
 must have informed you, and you are now to 
 remember, that such beneficence is only to 
 be obtained by deep contrition, sound, un- 
 feigned, and substantial repentance. 
 
 " Confined strictly, as your Lordship must 
 be for the very short remainder of your life, 
 
( 47 ) 
 
 according to the provisions of the late act ; 
 yet from the wisdom of the legislature, which, 
 to prevent as much as possible this heinous 
 and horrid crime of murder, hath added in- 
 famy to death, you will be still, if you please, 
 entitled to converse and communicate with 
 the ablest divines of the Protestant church, 
 to whose pious care and consolation in fer- 
 vent prayer and devotion I most cordially 
 recommend your Lordship. 
 
 " Nothing remains for me but to pronounce 
 the dreadful sentence of the law ; and the 
 judgment of the law is, and this High Court 
 doth award, that you," &c. 
 
 It was again Lord Northington's lot to pre- 
 side as Lord High Steward in the year 1765, 
 when Lord Byron was tried by his peers for 
 killing Mr. Chaworth in a duel. 
 
 The accession of George III. to the throne 
 in 1760, made a material alteration in the Lord 
 Keeper's fortunes and prospects, The situa- 
 tion to which he had been raised by force of 
 
( 48 ) 
 
 unforeseen political combinations, and which 
 he had retained in opposition to the wishes 
 of the late Monarch, he now enjoyed with the 
 full confidence and favour of the present. 
 His new master conferred upon him an early 
 and flattering mark of his regard, as on the 
 16th Jan. 1761, having delivered up the great 
 seal to his Majesty, he received it back with 
 the title of Lord Chancellor. This was fol- 
 lowed by a most liberal extension of honour 
 and patronage. By letters-patent, bearing 
 date the 19th May, 1764, he was created an 
 Earl, by the title of Earl of Northington, in 
 the county of Southampton, and Viscount 
 Henley, and on the 21st of the following 
 August, he was, on the death of the Marquis 
 of Caernarvon, made Lord Lieutenant of 
 Hampshire. 
 
 Lord Northington continued to fill the 
 station of Lord Chancellor during the three 
 successive administrations of Lord Bute, the 
 Duke of Bedford, and the Marquis of Rock- 
 ingham. His health, however, had latterly 
 become much impaired ; his constitution was 
 enfeebled by repeated attacks of gout : and 
 
( 49 ) 
 
 he had frequently, and for considerable inter- 
 vals, been incapacitated from performing the 
 laborious duties of his office. He had, there- 
 fore, early in the year 1TG6, desired an ho- 
 nourable and quiet retreat. 
 
 The feeble state of the Rockingham ad- 
 ministration induced him, it has been said, 
 to use the most strenuous endeavours to effect 
 a change, by which his retirement might be 
 agreeably secured. To what extent these 
 endeavours proceeded, it is difficult at the 
 present time satisfactorily to ascertain. It 
 is certain that he had never been cordially 
 attached to the ministry, and his antient ob- 
 ligations to Mr. Pitt, together with his per- 
 sonal friendship for Lord Camden, had con- 
 vinced him that these were the only states- 
 men by whom a permanent administration 
 could be formed. The first token of disa- 
 greement with his colleagues was evinced in 
 some strong dissatisfaction which he expressed 
 at a commercial treaty with Russia, that had 
 been negotiated by Sir George Macartney, 
 and to the acceptance of which he opposed 
 many obstacles. 
 
 E 
 
( 50 ) 
 
 The next symptom of the storm whereby 
 he overthrew the ministry was a strong ebul- 
 lition of indignation at the council board ; 
 the affairs of Canada furnishing the oppor- 
 tunity for giving vent to his discontent. A 
 report had been drawn up by the Attorney 
 and Solicitor general, (Charles Yorke and 
 de Grey,) for the civil government of Quebec. 
 This had been submitted to the cabinet, 
 and now the Chancellor condemned it with 
 unusual acrimony and severity. According 
 to Mr. Adolphus's account of this transac- 
 tion, (whose information respecting the events 
 of this period was derived from good autho- 
 rity,) at the first meeting of the cabinet, which 
 took place at the Chancellor's house, he de- 
 clared his entire disapprobation of the report, 
 objected to some particular regulations, and 
 gave it as his opinion that no proposition 
 could be sanctioned till a complete code of 
 the laws of Canada had been procured ; a 
 suggestion which, if complied with, would 
 occasion the delay of a whole year. He 
 also complained of some instances of inat- 
 
( 51 ) 
 
 tendon which he had experienced. The 
 
 meeting Mas dissolved without any definitive 
 resolution having been adopted, and before 
 a new one could be convened, he declared 
 his resolution to attend no more. 
 
 On a subsequent day the Chancellor ob- 
 tained an audience of the King, when he 
 informed him that the administration could 
 go on no longer ; he declined in terms of the 
 utmost plainness attending any more cabinet 
 meetings, and recommended his Majesty to 
 send for Mr. Pitt. This advice having been 
 favourably received, the royal commands were 
 given to him to confer with that statesman 
 on the subject of a new ministry. This con- 
 ference, which took place on the 12th of July, 
 1766, was opened by the offer of a carte 
 blanche to Mr. Pitt; General Conway, who 
 retained his situation of Secretary of State, 
 assisting in the negotiation. Mr. Pitt, thus 
 supported, formed the plan of the new ad- 
 ministration without communication with Lord 
 Temple, who was on the following day sent 
 for from Stowe, and on the loth had an in- 
 terview with the King, at which the Chancellor 
 
 e 2 
 
( 52 ) 
 
 was present. After an unsatisfactory con- 
 ference on the following day between Lord 
 Temple and Mr. Pitt, at which the former 
 found that all the situations had been dis- 
 posed of without due regard to himself or his 
 friends ; a last interview took place between 
 the Chancellor and Lord Temple on the 
 evening of the 17th, when the latter told him 
 that the farce was at an end, the mask taken 
 off, and that he need not have sent for him out 
 of the country, as there never was any serious 
 intention of employing him. Thus was the 
 friendship between the two brothers-in-law, 
 which had existed for so many years, dis- 
 solved in anger, and Mr. Pitt left to the 
 formation of a ministry embarrassed by the 
 secession of so powerful a coadjutor. 
 
 The result of these negotiations, as it re- 
 lated to the public, was, that the Duke of 
 Grafton was placed at the head of the treasury; 
 Charles Townshend was made Chancellor of 
 the Exchequer, with the lead of the House of 
 Commons ; Lord Shelburne was made Secre- 
 tary of state ; the Marquis of Granby was 
 placed at the head of the Admiralty ; and Mr. 
 
( 53 ) 
 
 Pitt, though in fact prime minister, took the 
 office of Privy Seal, and was made an Earl. 
 As far as this arrangement regarded Lord 
 
 O CD 
 
 Northington personally, his desired retire- 
 ment was provided for on honourable and 
 gratifying terms. He resigned the Great Seal, 
 which was given to Lord Camden ; and was 
 appointed to the easy station of President of 
 the Council, with a pension of c£2000 per 
 annum, in addition to the salary, and with 
 a grant of an increase of that pension to 
 .£4000 per annum on his resignation of the 
 office. The reversion of the Hanaperfor two 
 lives after the demise of the Duke of Chan- 
 dos was also secured to him. 
 
 He took his seat as President of the Council 
 on the 30th of June, 1766, and retained it 
 for somewhat less than a year. But the gout, 
 which had become more frequent and violent 
 in its attacks, soon rendered it impossible for 
 him to perform the duties of his new situa- 
 tion. The last effort of his public life was a 
 very manly and powerful speech which he 
 delivered in the debate in Nov. 1766, on the 
 address respecting the embargo which had 
 
( 54 ) 
 
 been laid, in consequence of the scarcity, 
 upon the ships preparing to sail with cargoes 
 of grain. In the end of June, 1767, he de- 
 clared to the King his resolution to resign in 
 consequence of ill-health, and from that time 
 till his death, which happened on the 14th of 
 Jan. 1772, he took no further part in public 
 business. He continued, however, in fre- 
 quent correspondence with the Duke of 
 Grafton, who always showed the most re- 
 spectful deference to his experience and 
 knowledge. 
 
 Lord Northington's judicial talents were 
 of the first order. He was gifted by nature 
 with an understanding at once vigorous and 
 acute, and brought with him to the bench a 
 profound acquaintance both with the science 
 and practice of the law. He was remarkable 
 for the great energy and decision of his mind, 
 for the happy capacity of relieving an intri- 
 cate case from extraneous and minor circum- 
 stances, while he grappled with and overcame 
 its weightiest difficulties. His judgments are 
 Conspicuous for their clear, simple, and manly 
 style. " He was a great lawyer," has been 
 
( 55 ) 
 
 repeatedly observed by the highest authority 
 now living,* " and very firm in delivering his 
 opinion." 
 
 By an accident, for a long time unfortunate 
 for his fame, the proceedings in the Court 
 of Chancery when he presided in it, had been 
 most insufficiently reported. He had left, 
 however, copious materials for a collection 
 of his decisions in many elaborate Judg- 
 ments written out in his own hand, and 
 in full notes of the arguments of Counsel. 
 The manuscript collections of Sir Thomas 
 Sewell, Mr. Baron Perryn, Serjeant Hill, 
 Mr. Hargrave, Mr. Coxe, and other eminent 
 persons were able to supply deficiencies which 
 might exist in these materials. From such 
 sources the Author of this Memoir was fortu- 
 nate enough a few years ago to present two 
 volumes of his decisions to the profession, 
 which have already passed into a second 
 Edition, and which, it is satisfactory for him 
 to know, have greatly raised the reputation 
 of his ancestor with those best qualified to 
 estimate it. 
 
 Notwithstanding the discouraging circum- 
 * Lord Eldon. 
 
( 56 ) 
 
 stances already noticed, which attached to the 
 early portion of his judicial career, in suc- 
 ceeding so closely to the unrivalled fame of 
 Lord Hardwicke, and being compelled so 
 long to preside in the House of Lords as a 
 Commoner, it is remarkable that during the 
 nine years in which he held the Seals, Six 
 only of his decrees were ever reversed or 
 materially varied upon appeal. Of these re- 
 versals one is certainly erroneous; and two 
 more are of such a nature that the profes- 
 sion were at the time, and are still, greatly 
 divided on the correctness of them. The 
 number of those decisions which, though 
 not made the subject of appeal, have been 
 overruled or shaken, is extremely small, cer- 
 tainly not exceeding three: and in one or 
 two instances, where later decisions had gone 
 in contradiction to his opinions, maturer de- 
 liberation and more extensive inquiry into 
 principles and cases, have established the 
 accuracy of the original determination. 
 
 Many Chancellors have played a more con- 
 spicuous part in the political drama, but few 
 have passed through it with more dignity and 
 
C 57 ) 
 
 consistence. He preserved, from his first en- 
 trance into parliament, an undeviating attach- 
 ment to the party which he had espoused; 
 he shared its long proscription ; he adhered 
 to it when deprived of its royal head ; and he 
 finally received the reward of his honesty 
 from the gratitude of the son of his original 
 patron. He has been indeed accused of 
 having effected the downfal of the Rocking- 
 ham administration by intrigues and ma- 
 noeuvres. But this is an accusation more 
 easily alleged than substantiated; and so far 
 from ever having been proved, is negatived 
 by all the evidence which has come down 
 to us. His opposition to it was open and 
 avowed. That administration, though com- 
 posed of some of the most enlightened and 
 virtuous men of the day, was totally unequal 
 to the exigencies of the times; and fell to 
 pieces according to an expression of Burke 
 on another subject, " by the necessities of its 
 own conformation." So far from being guilty, 
 of anything underhand, his attack at the 
 council board was as open as Shaftesbury's 
 abandonment of the Cabal, or Thurlow's out- 
 break against Mr. Pitt. 
 
- ( 58 ) 
 
 Lord Northington was fond of literature, 
 and kept up his acquaintance with the Greek 
 and Latin classics long after the period when 
 the business of life draws most men away 
 from these delightful pursuits. He was also 
 something of a proficient in Hebrew. His 
 favourite English author was Clarendon, the 
 bluntness and loyalty of whose character he 
 always admired, and in whose dignity of style 
 he delighted. His daughter Lady Bridget, 
 however, whom he employed latterly to read 
 to him, used to declare that she derived much 
 greater pleasure from the little anecdotes 
 which she picked out of his briefs, than from 
 all the stately periods of the historian. 
 
 In private life Lord Northington was a 
 highly agreeable companion. He was, as 
 we have seen in his early years, fond of the 
 pleasures of convivial society, and even in 
 maturer life enjoyed the excitement of it 
 without its excess. George the Third used 
 frequently to relate with great humour the 
 mode in which he asked permission to abo- 
 lish the Chancellor's Evening Sittings on 
 Wednesdays and Fridays during term, that 
 
( 59 ) 
 
 he might have time to finish his bottle at 
 his leisure, a permission which his Majesty 
 for so excellent a reason most graciously 
 accorded. He possessed a strain of vigorous 
 wit and an originality of expression, in which 
 he was followed, and perhaps outdone, by 
 his great successor Lord Thurlow. Indeed, 
 in several of their colloquial peculiarities, in 
 a certain contempt of all affectation and false 
 pretence, and perhaps a blameable disregard 
 of some of the minor regulations of polite 
 society, there was a strong resemblance be- 
 tween these two eminent men. But here the 
 parallel stops, for as Thurlow excelled him, 
 as he did most other men, in the immense 
 vigour and capacity of his mind, so on the 
 other hand Northington, with all his rough- 
 ness of manner, possessed what the other 
 had not — an excellent heart. He had many 
 of the accomplishments and almost all the 
 virtues which adorn social life. 
 
 In the domestic relation of husband his 
 affection and kindness were unbounded. Of 
 the multitude of his manuscripts of every 
 description, political, legal, or confidential, 
 
( 60 ) , 
 
 which have come to my hands, none has 
 given me such unmixed gratification as a 
 paper containing two beautiful prayers, which 
 he composed for Lady Northington's use 
 during the first years of their married life. 
 One was written soon after their union, and 
 the other upon the birth of a second child. 
 She survived him for many years, and re- 
 garded them till the last hour of her life with 
 an enthusiasm pardonable towards so inte- 
 resting a memorial. I should not have drawn 
 aside the veil from this instance of domestic 
 affection, which may perhaps be deemed trivial 
 and uninteresting, had I not thought it an act 
 of justice to the memory of Lord Northington. 
 For, partly from the gaiety and dissipation 
 of his earlier years, and partly from the care- 
 lessness with which he permitted himself to 
 indulge in private conversation, an opinion 
 has been entertained prejudicial to his moral 
 and religious character. Nothing however, 
 as they who knew him best have testified, 
 could be more utterly erroneous. He had a 
 sincere and well-grounded belief in the grand 
 doctrines of Christianity, and was, as touch- 
 
( 61 ) 
 
 ine his moral and social duties, (as far as the 
 expression may be applied to human con- 
 duct,) blameless. 
 
 Though naturally warm and irascible, he 
 was placable, generous and forgiving. The 
 only exception to his almost universal kind- 
 ness was in his manner towards his Son, 
 with whom his deportment was marked by 
 a stately reserve and coldness, according 
 indeed with the fashion of a period when 
 exaggerated notions of parental authority 
 were still entertained ; but which have now 
 given place to more easy and confidential 
 habits on the one side, without, it is to 
 be hoped, affecting the cheerful perform- 
 ance of substantial duty on the other. But 
 in the society of his daughters he was all 
 that was playful and amiable ; and their 
 conversation, especially that of Lady Bridget 
 Tollemache, was a delightful relief to him 
 after the fatigues of business. The wit and 
 conversational talent of this his eldest and 
 favourite child were of the most brilliant 
 order, and he derived great pride and satis- 
 faction in calling them forth. 
 
( 62 ) 
 
 Lord Northington was in his person of 
 middle height and rather thin. His portrait 
 by Hudson accords with Bishop Newton's 
 account, and represents him extremely hand- 
 some; and he appears to have retained, even 
 after his elevation to the Seals, a degree of 
 colour and freshness which is not often pre- 
 served by those who win the great prizes in 
 this laborious race. 
 
 Lord Coke has somewhere remarked, that 
 the marriages of lawyers are fruitful, and 
 Lord Northington's was no exception to the 
 observation. He had eight children, three 
 sons and five daughters, of whom six sur- 
 vived him. 
 
 Robert, second Earl of Northington, was 
 his only surviving son, the two others having 
 died in their infancy. He was at an early 
 age elected Member of Parliament for the 
 county of Hants, and had the honour to re- 
 present it till called to the House of Peers 
 by the death of his father. In 1771 he was 
 made a Knight of the Thistle. He was a 
 great personal friend and companion of the 
 late Mr. Fox, and when the Coalition admi- 
 
( 03 ) 
 
 nistration came into power in 178.3, he was 
 appointed to the arduous station of Lord 
 Lieutenant of Ireland, Mr. Wyndham being 
 his chief secretary. The frankness and popu- 
 larity of his manners, his good sense and 
 firmness, fitted him for this elevated post; 
 but the early dissolution of that short-lived 
 administration removed him from this inte- 
 resting sphere of action. He afterward died 
 at Paris, on his return from Italy, on the 5th 
 of July, 1786, aged 39. He was never mar- 
 ried, and the title therefore became extinct. 
 The five daughters were as follows : 
 
 1. Bridget, who married, 1st, the Ho- 
 nourable Robert Lane, eldest son of George 
 Lord Bingley, and, 2dly, the Honourable 
 John Tollemache, son of Lionel Earl Dy- 
 sart ; and who, surviving her only son Lionel 
 Tollemache, (killed at the siege of Valen- 
 ciennes,) died without issue. 
 
 2. Jane, married to Sir Willoughby Aston, 
 Bart., also died without issue. 
 
 3. Mary, married first to the Earl of 
 Ligonier, and, 2dly, to Viscount Wentworth, 
 died without issue. 
 
( 64 ) 
 
 4. Catharine, first wife to the present Earl 
 of Coventry, also died without issue. 
 
 5. Elizabeth, married Sir Morton Eden, 
 K. B. afterwards created Lord Henley, died 
 on the 20th of August, 1821, and who, 
 being the only one of Lord Northington's 
 children who has left issue, the author of 
 this Memoir, as her eldest surviving son, is 
 heir at law of Lord Chancellor Northington. 
 
APPENDIX. 
 
 I have inserted for readers who are not pro- 
 fessional, a few of Lord Northington's judg- 
 ments on subjects of a more general interest, as 
 a fair specimen of his judicial powers. I have 
 stripped the cases of the long statements of facts 
 and of the arguments of counsel, which, however 
 necessary to enable a lawyer to arrive at cor- 
 rect technical conclusions, only tend to perplex 
 and weary the general reader, whose object is 
 either to ascertain the actual result of the deci- 
 sion, or to obtain a general notion of the style 
 and powers of some eminent master of judicial 
 reasoning. One of his most powerful and elabo- 
 rate judgments I have thought too abstruse and 
 technical to insert in this publication, though it 
 is one of the closest pieces of reasoning in the 
 books. It was delivered in the great case of 
 Burgess v. Wheate, in 1759, where the question 
 was whether the Crown was entitled by escheat 
 to a trust estate upon the cestuy que trust dying 
 without heirs. Lord Northington, then Lord 
 
( 2 ) 
 
 Keeper, called in to his assistance Lord Mans- 
 field and Sir Thomas Clarke, the Master of the 
 Rolls. These three eminent persons differed on 
 the subject, Lord Mansfield being in favour of 
 the claim of the Crown — the Master of the Rolls 
 and the Lord Keeper being adverse to it. The 
 latter decision has been approved of by many 
 succeeding judges, and is at present the general 
 opinion of the profession. 
 
 Duke of Marlborough v. Earl Godolpiiin. 
 
 This important case arose on the will of the 
 great Duke of Marlborough, and is one of the 
 low minded and selfish attempts which frequently 
 occur where a testator endeavours to retain after 
 death a control over his wealth beyond the limits 
 allowed by law, and which have so often and 
 so wisely been defeated. The duke devised his 
 real estates to trustees, for several persons for 
 life, with remainder to their sons in strict settle- 
 ment; but directed his trustees, on the birth of 
 every son of each tenant for life, to revoke the 
 uses before limited to their respective sons in 
 tail male, and to limit the estate to such sons 
 for their lives. The Lord Keeper held that this 
 clause of revocation and resettlement was void, 
 as tending to a perpetuity. It is singular to 
 
( 3 ) 
 
 remark how completely the testator would have 
 defeated his own intentions, had his will been 
 permitted to take the effect which he desired ; 
 for the estate would have been inalienable during 
 the life of the late duke, and would have come 
 entirely into the possession and control of the 
 present. 
 
 The Lord Keeper. — The two bills that are now- 
 depending for determination are both brought to 
 have the directions of the court concerning the 
 executions of the trusts in the will of John, Duke 
 of Marlborough. (Here his lordship stated the 
 prayer of the first bill, &c.) 
 
 This cause came on to be heard in June, 1740, 
 and several directions were given by the then 
 Lord Chancellor, touching the accounts, applica- 
 tion of the surplus, and other matters ; but a 
 question arising, " as to the power given by the 
 testator's will to the trustees to revoke the uses 
 thereby limited to the first and every other son 
 of the respective tenants for life, and to limit the 
 premises to the use of such sons for their lives 
 only;" and also, "whether, in consequence 
 thereof, the defendants, the Marquis of Blandford 
 and John Spencer the infants, were entitled to 
 limitations in tail, or for life only, in the settle- 
 ment to be made of the estates ;" his lordship 
 declared that he would be assisted by the two 
 chief justices and the chief baron in the deter- 
 
 b2 
 
( 4 ) 
 
 mination of that question. He reserved it, and 
 the cause as to that point has never been set 
 down till now for a determination. 
 
 The other bill is brought by the present Duke 
 of Marlborough, principally with a view of having 
 that question determined, and a legal title in tail 
 conveyed to him by the trustees accordingly. 
 The other cause is set down upon the point re- 
 served, to have a determination also. 
 
 The reason why I have not pursued the same 
 plan as the noble and learned lord laid down is 
 this, that the point in question is entirely new, 
 and if it cannot be determined upon principles 
 and reasons that afford a general satisfaction, the 
 property is so immense, and the family so great, 
 that I think it should be determined by the 
 supreme judicature of this nation; especially as 
 in one event it will lock up property, and keep it 
 c commercio, far longer than can at present be 
 done by any known or practised method of con- 
 veyancing. (Here his lordship read the principal 
 part of the will.) 
 
 The grand question upon these two bills and 
 the will of John, Duke of Marlborough, is whe- 
 ther I should, according to the prayer of the 
 present duke's bill, order the trustees to con- 
 vey to him the new purchased lands as tenant 
 in tafl, or as tenant for life ; and at the same 
 time order the surviving trustee to revoke the 
 
( 5 ) 
 
 uses of the will, so far as they relate to the limi- 
 tation of estates tail to Duke George and his 
 brothers, and to Mr. Spencer, and to direct limi- 
 tations to them of those estates for life only. 
 And this question will depend upon the effect of 
 the revocatory clause coupled to a trust estate, 
 which can alone be carried into execution by the 
 aid and assistance of this court. 
 
 It is agreed on all hands that this clause is 
 new, and that though it has been privately fos- 
 tered by a particular family, from whence it 
 issued, it never obtained any credit so as to be 
 adopted by lawyers and conveyancers. Indeed 
 it is so new, that it has acquired no name or spe- 
 cies ; for the counsel have called it a power, to 
 which it has no resemblance, since it is imposed 
 on the trustees as an act of necessity, whereas a 
 power is afacultas agendi vel non agendi. 
 
 It being, therefore, a clause directory and com- 
 pulsory to the trustees, (for every legal direction 
 this court will compel a trustee to perform,) the 
 provision is in substance neither more nor less 
 than this — a clause in the Duke of Marlborough's 
 will, in which he makes his great grandson, the 
 present duke, (who was at the time of the making 
 this will unborn,) tenant for life, with a limitation 
 to the sons of such grandson as purchasers in 
 tail. 
 
 It is agreed that the Duke of Marlborough 
 
( 6 ) 
 
 could not have done this by limitation of estate ; 
 because, though by the rules of law an estate 
 may be limited by way of contingent remainder 
 to a person not in esse for life, or as an inherit- 
 ance; yet a remainder to the issue of such con- 
 tingent remainder man as a purchaser, is a limi- 
 tation unheard of in law, nor ever attempted, as 
 far as I have been able to discover. 
 
 Why the law disallowed these kind of limita- 
 tions I will not take upon me to say ; because I 
 have never met, in the compass of my reading, 
 with any reason assigned for it, and I shall not 
 hazard any conjecture of my own; for technical 
 reasons upheld by old repute and grown reverend 
 by length of years, bear great weight and autho- 
 rity ; but a new technical reason appears with as 
 little dignity as an usurper just seated in his 
 chair of state. So far, however, is plain, that the 
 common law seemed wisely to consider that the 
 real property of this state ought, to a degree, to 
 be put in commerce, to be left free to answer the 
 exigencies of the possessors and their families, 
 and therefore admitted no perpetuities by way of 
 entails ; and though it allowed contingent remain- 
 ders, it afforded them no protection. 
 
 The dissipation of young heirs, the splendour 
 of great families, the propriety of annexing suffi- 
 cient possessions to support the dignities obtained 
 by illustrious persons, afford specious and colour- 
 
( 1 ) 
 
 able arguments for perpetuating and entailing 
 estates; but in a country of trade and commerce, 
 to damp the spirit of industry, and to take away 
 one of its greatest incentives, the power of 
 honourably investing acquisitions, would produce 
 all the mischiefs and inconveniences of the statute 
 of entails : and therefore the safety of creditors 
 and purchasers make it, in my opinion, a matter 
 of the highest importance, that the law should be 
 fixed and certain with respect to the limitations 
 of real property in family settlements ; not sub- 
 ject to be questioned upon whimsical inventions, 
 started (though by the ablest men) in order to 
 introduce innovations in fundamentals. 
 
 One would think it strange that it should be 
 admitted, (particularly in a court of equity, the 
 jurisdiction of reason,) that the Duke of Marl- 
 borough could not limit his estate to Duke George 
 for life, with remainder to his sons in tail male, 
 because it is locking up the estate beyond the 
 duration allowed by law, but that he may deliver 
 the keys to another, and impower him to do that 
 which he himself could not. That we should be 
 arguing thus — this act prohibited by general 
 policy non potes facere per teipsum, sed piotes fa- 
 cere per alium — non per directum, sed per obliquum. 
 For all the maxims of general good sense and 
 everlasting reason are maxims of equity, but not 
 rules in law. 
 
'( 8 ) 
 
 The power and pride of the nobility introduced 
 the statute of entails and perpetuities. The re- 
 luctant spirit of English liberty (depressed as it 
 was before the revolution) would not submit to 
 it; and Westminster Hall, siding with liberty, 
 found means to evade it. Recoveries were esta- 
 blished, by which alienations were introduced, 
 contrary to the intent of the statute. What were 
 the attempts made to frustrate this method of 
 barring estates tail? Provisoes and conditions 
 not to alien, with a cesser of the estate on any 
 such attempt by the tenant. What was the de- 
 termination of the judges? You shall not give a 
 legal estate, and divest it of legal incidents. You 
 shall not by condition restrain an estate tail from 
 being alienable by the mode in which the law 
 allows it to be aliened, nor restrain a tenant in 
 tail from barring his issue by fine ; nay, you 
 shall not restrain a tenant in tail from committing 
 waste, his wife from being endowable, or the 
 husband of tenant in tail from being tenant by 
 curtesy. 
 
 It seems to me most surprising, that after these 
 puerile attempts had been made, upon the narrow, 
 fettered, and technical reasonings of courts of 
 law, and been rejected and exploded with con- 
 tempt and derision, that it could ever have en- 
 tered into the head of man to think that he could 
 subvert the fundamental principles of property 
 by the aid of this court. 
 
( 9 ) 
 
 This court considers all arguments and reason- 
 ings in the abstract, unclogged by any thing but 
 the system of the law which it is bound to follow ; 
 I trust that it will never be so blind as not to see 
 the legal limits ; I hope that it will never be so 
 arbitrary as to transgress them. 
 
 This court has no discretion to say how far 
 perpetuities are to extend, and where they are to 
 stop ; the duty of this court is to give trusts the 
 same extent as legal limitations, and to make the 
 system of law and equity uniform. 
 
 It was said in the argument on this case, that 
 it is determined that a person may, by executory 
 devise, make an estate unalienable for one life in 
 being, and twenty or twenty-one years after, but 
 that the time not to be exceeded is no where de- 
 fined, therefore that I might as well extend it 
 beyond that period as others have to it. It is 
 true that by executory devise, an estate may be 
 locked up for a life or lives in being, and 
 twenty or twenty-one years after. And that is 
 in conformity to the course of limitations, and 
 the methods of conveyance at law : for a limita- 
 tion may be to one for life, with remainder to a 
 person unborn in tail or in fee. If there are 
 trustees to support contingent remainders, the 
 remainder cannot be barred by the tenant for 
 life, nor can it be conveyed by the remainder- 
 man till he attains the age of twenty-one. There- 
 
( io ) 
 
 fore the sages of the law have properly allowed 
 a perpetuity as far in executory devises, which 
 are accommodated to the exigencies in families, 
 as in legal limitations. But at the determination 
 of the period of one life, and twenty or twenty- 
 one years, the estate is alienable. Whereas, 
 could there be a succession of estates for life, 
 with remainder to the issue of such tenants for 
 life, the inheritance is locked up till the estates 
 for life are all spent, and the remainder-man of 
 the inheritance is twenty-one. As for instance, 
 in the present case, had Duke Charles lived to 
 seventy, and then had a son, and that son had 
 lived to the same age, and then had a son, the 
 inheritance could not have been charged or dis- 
 posed of in less than 160 years : and unless the 
 rules of limitation are adhered to, I cannot see 
 any reason why this equitable modification might 
 not as well be extended to any remoter generation 
 than in the present will. 
 
 I have thus far considered this case upon its 
 general tendency to a perpetuity, beyond what I 
 conceive the rules of law allow ; I shall now con- 
 sider it particularly with regard to the operations 
 it would have upon this family settlement, and the 
 endless disputes, questions, and expenses such 
 unusual clauses have been and always will be 
 productive of. 
 
 In the first place, all the real estates Duke John 
 
( 11 ) 
 
 was possessed of are limited to the present Duke 
 George in tail, and vested in him on his birth. 
 I omit the absurdity in law, that the same person 
 should limit an estate in remainder, and destroy 
 it the moment it comes into possession. 
 
 But I want to know what this clause is. Is it 
 a power ? If so, it is discretionary in the trustees 
 to execute it or not. But then, when are they to 
 exercise their discretion as to the execution or 
 non-execution of it ? By the penning of the 
 clause it is plain the testator intended the trus- 
 tees, the survivors, and survivor of them, should 
 be enabled to revoke. But when ? At any time ? 
 There is nothing in the clause that imports it ; 
 no : they were empowered on the birth of each 
 and every respective son and sons. Will it be 
 said, that if they w r ere empowered to revoke on 
 the birth of a son, this court will enable and or- 
 der them to execute that power, of which they 
 have waived the execution ? Suppose the clause 
 had been penned with a greater latitude, (I am 
 now speaking of it as a power, as the court on 
 the former hearing and the counsel on this have 
 called it,) and the trustees had been empowered 
 and directed to revoke within one year after the 
 birth of a son ; could this court have extended 
 the period, and supplied the defective execution 
 of that power, in order to devest Duke George's 
 estate ? 
 
( 12 ) 
 
 But I really am of opinion Duke John never 
 intended it as a power, in the accurate sense and 
 obvious meaning of that word. He intended the 
 revocation absolutely to take place, in case the 
 events to which it applied ever happened ; and to 
 have perpetuated the estate one degree longer 
 than usual by means of this arcanum, with which 
 his lawyers had flattered his then predominant 
 passion. The word impower seems to me to have 
 been used in the will from a poverty of language 
 in the drawer of it, as the word direct was to 
 ensue ; the properer expression would have been, 
 enable and direct, for the word impower was used 
 only to transfer a part of the old dominion to 
 trustees, who were enjoined to execute the direc- 
 tion. 
 
 Perhaps it will then be said, if it be a trust 
 enjoined the trustees to execute, then it remains 
 during the particular estate, and the non-execu- 
 tion of the trustee cannot prejudice the cestuy 
 que trust, and the court must consider it as done 
 on the birth, and order at any time a revo- 
 cation and new limitation, with a relation to the 
 birth. And what would be the consequence of 
 this doctrine ? If the present duke had enjoyed 
 the estate for forty years as tenant in tail, had cut 
 timber and spent the money, a bill is then brought 
 by a remainder-man to have the settlement made 
 
( 13 ) 
 
 pursuant to this clause, I must order him to re- 
 fund perhaps £100,000, which he had innocently 
 spent as his own money. Suppose he had mar- 
 ried while he was tenant in tail, I must declare 
 him tenant for life, revoke his estate tail, and 
 strip his wife of her jointure ; nay, perhaps after 
 his death. And all leases executed by him as 
 tenant in tail would become void, and the tenants 
 be defeated of their estates and improvements. 
 
 And here I cannot help taking notice of an ob- 
 servation of that great writer, Lord Bacon, on the 
 attempt to make a perpetuity by the introduction 
 of a proviso conditional, which seems to me to be 
 the same in substance with the present attempt. 
 These "perpetuities," said he, " if they should 
 stand, would bring in all the former inconveniences 
 subject to entails, that were cut off by the former 
 mentioned statutes, and far greater, besides raising 
 unkind suits, setting all the kindred at jars, some 
 taking one part, some another, and the principal 
 parties wasting their time and money in suits of 
 law ; so that in the end they are both constrained 
 by necessity to join in the sale of the land, or a 
 great part of it, to pay their debts, occasioned 
 through their suits." 
 
 In pointing out a few of those various disputes 
 that necessarily spring from these innovating 
 clauses, I think I collect the strongest reasons 
 why the law will not admit them, and why every 
 
( 14 ) 
 
 court should without hesitation pronounce them 
 void. If the law would permit the confinement 
 of an estate beyond a life in being, and the time 
 for a remainder-man's minority to expire ; as the 
 law is a system, it would have certainly allowed 
 it to be done by way of limitation, where, the 
 estate being limited, the extent of the owner's 
 dominion is visible to all who transact with him ; 
 and the end of the law is in this country only 
 quiet and repose. But to say, the law does not 
 allow this by direct limitation, and yet allows the 
 same thing to be effected, by I know not what 
 magic, in the modification of an equitable estate, 
 would be productive of infinite suits and ques- 
 tions, tending to defeat the design of both law and 
 equity, and would make both a system of puerility 
 and jargon. 
 
 It was said, however, that I ought, upon the 
 authority of the case of Humberston v. Humber- 
 ston, to order the limitations to be made as far as 
 they may by law at the time of pronouncing the 
 decree ; and therefore that I ought now to decree 
 an estate for life to the Duke and Mr. Spencer, 
 with remainder to their sons as tenants in tail. 
 That case is reported by Mr. Vernon and Mr. 
 Peere Williams, and by both reports it looks as 
 if there had been directions in that decree to that 
 effect. But it seemed to me that such a decree, 
 founded on events subsequent to the testator's 
 
( M ) 
 
 death, would be very singular, and not warranted 
 by the rules of law or equity. I have therefore 
 looked into the decree in the Register's book, and 
 I do not find any part of the directions that ap- 
 pear to me to justify those observations. The 
 words of the decree, as far as regards this pur- 
 pose, are " That the master do see a settlement 
 made of the residue of the trust estate, pursuant 
 to the will of the testator, with limitations to the 
 several parties named to be tenants for life in the 
 said will, and to the heirs male of their bodies, in 
 strict settlement, according to the course of law ; 
 and if any of the parties who are named tenants 
 for life have any issue male living, their names 
 are to be inserted into the deed of settlement." 
 But not as tenants for life, but " according to the 
 due course of law." 
 
 It was further objected, that I should not inter- 
 pose, but leave the surviving trustee to act at his 
 discretion. But there is no weight in that ob- 
 jection ; for whether this be a power or a com- 
 pulsory direction to the trustees, whether it be 
 valid or invalid, the testator intended that the 
 Duke of Marlborough, the plaintiff, should have 
 his estate executed as soon as conveniently after 
 his birth ; he has a right, therefore, now, to have 
 the trust performed, and can have it performed 
 only by the aid and under the direction of this 
 court. 
 
( 16 ) 
 
 Upon the whole, therefore, I am of opinion, 
 and do declare, that the clause of revocation and 
 resettlement in the will of John, Duke of Marl- 
 borough, is tending to a perpetuity, and as repug- 
 nant to the estate limited, is void and of none 
 effect ; and I do order and direct that the sur- 
 viving trustee do convey the new purchased pre- 
 mises to the plaintiff George, Duke of Marlbo- 
 rough, in tail male, with remainders over, and 
 subject to such powers, provisoes, conditions, 
 and restrictions, as, consistent with an estate tail, 
 are pursuant to the will of John, Duke of Marl- 
 borough. 
 
 This decree was afterwards affirmed in the 
 House of Lords on the 7th of Feb. 1763. 
 
 Norton v. Relly. 
 
 This was a bill filed by the plaintiff, a maiden 
 lady, residing at Leeds, against the defendant 
 Relly, a methodist preacher, and others, trustees 
 named in a deed of gift executed by her to the 
 defendant, praying that it might be delivered up 
 to be cancelled, &c. The bill stated, that the 
 defendant procured one Woolfe to transmit to her 
 a letter, in which he expressed himself as follows , 
 " That although unknown to her in the flesh, 
 from the report he had of her, he made bold to 
 
( 17 ) 
 
 address her as a fellow-member of that conse- 
 crated body wherein the fulness of the Godhead 
 dwelt ; that he had some thoughts of visiting her, 
 the people to whom he preached, (though they 
 had none among them whom they would chuse to 
 hear in his absence,) being willing that he should 
 come among them at Leeds for a little time to 
 preach the kingdom of God." He subscribed 
 himself the plaintiff's " most affectionate brother 
 in the flesh." The plaintiff was prevailed upon 
 by Woolfe to invite the defendant to her house, 
 where she entertained him for a considerable time, 
 and gave him money to defray the expenses of his 
 journeys ; he afterwards paid her a second visit, 
 when he prevailed upon her to accompany him 
 to town, and become one of his congregation. 
 In the course of two years he obtained from her 
 about £150 by various pretences ; and at last 
 persuaded her to execute the deed in question, 
 granting to him an absolute annuity of £50, se- 
 cured upon her real estates in Yorkshire. The 
 bill contained several similar letters of the de- 
 fendant, and stated several acts of fraud and 
 imposition. 
 
 The Lord Chancellor. — This cause, as it has 
 been very justly observed, is the first of the kind 
 that ever came before this court, and, I may add, 
 before any court of judicature in this kingdom : 
 
 c 
 
( 18 ) 
 
 matters of religion are happily very rarely matters 
 of dispute in courts of law or equity. 
 
 In regard to protestant dissenters, under which 
 denomination it has been attempted to shelter and 
 include the defendant Relly, no man whatever 
 bears a greater regard and esteem for those who 
 really are so than I do ; and God forbid that in 
 the present age the true dissenters of every kind 
 should not be tolerated, or that the spirit of 
 Christianity should, in this kingdom, lose the 
 spirit of moderation ! I can and do esteem the 
 professors of one equally with those of our own 
 established church, to which, not only from the 
 profession of my faith, but from my principles, 
 I bear a higher veneration. But very wide is the 
 difference between dissenters and fanatics, whose 
 canting and whose doctrines have no other ten- 
 dency than to plunge their deluded votaries into 
 the very abyss of bigotry, despair, and enthu- 
 siasm. And though even against those unhappy 
 and false pastors I would not wish the spirit of 
 persecution to go forth, yet are not these men to 
 be discountenanced and discouraged whenever 
 they properly come before the courts of justice ? 
 Men who go about in the Apostles' language, and 
 creep into people's dwellings, deluding weak 
 women : men who go about and diffuse their rant 
 and warm enthusiastic notions, to the destruction 
 
( 19 ) 
 
 not only of the temporal concerns of many of the 
 subjects of this realm, but to the endangering 
 their eternal welfare. And shall it be said that 
 this court cannot relieve against the glaring; im- 
 positions of these men ? That it cannot relieve 
 the weak and unwary, especially when the impo- 
 sitions are exercised on those of the weaker sex ? 
 It is by no means arguing agreeably to the prac- 
 tice and equity of this court to insist upon it. 
 This court is the guardian and protector of the 
 weak and helpless of every denomination, and the 
 punisher of fraud and imposition in every degree. 
 Yes, this court can extend its hands of protection : 
 it has a conscience to relieve, and the constitution 
 itself would be in danger if it did not. 
 
 To come to the present case : here is a man, 
 nobody knows who or what he is ; his own counsel 
 have taken much pains, modestly, to tell me what 
 he is not ; and depositions have been read to show 
 that he is not a methodist. What is that to me ? 
 But I could easily have told them what, by the 
 proofs in this cause, and his own letters, he ap- 
 pears to be — a subtle sectary, who preys upon 
 his deluded hearers, and robs them under the 
 mask of religion ; an itinerant who propagates his 
 fanaticism even in the cold northern countries, 
 where one should scarcely suppose that it could 
 enter. Shall it be said in his excuse, that as to 
 this lady she was as great an enthusiast as him- 
 
 c .' 
 
( 20 ) 
 
 self when he first became acquainted with her, 
 and, consequently, not deluded by him ? It ap- 
 pears, indeed, that she wrote some verses " on 
 the mystery of the union of the Father, Son, and 
 Holy Spirit." It is true that it appears by this 
 that she was far gone ; but not gone far enough 
 for his purpose, as we shall find by his own let- 
 ters : in one he says, " your former pastor has, I 
 hear, excommunicated you ; but let not these 
 things discourage you, but put yourself in my 
 congregation, wherein dwells the fulness of God." 
 How scandalous, nay, how blasphemous is this ! 
 In another his mystical expression runs, " you 
 will be there weaned from men, and learn to 
 complete the fulness of Gospel peace." Thus 
 was she advanced step by step, and imbibed his 
 doctrines till she became quite intoxicated, if I 
 may use the expression, with his madness and 
 enthusiasm. 
 
 But the very material and most essential point 
 in law, the consideration of the deed, say the de- 
 fendant's counsel, is the dedicating the principal 
 part of his time in attending the spiritual con- 
 cerns of this lady, and neglecting his flock, who 
 thereupon deserted him, (the only good thing, in 
 my opinion, that appears in the cause.) But did 
 he receive no consideration, no recompense for 
 his service ? Let us examine a little. Does he 
 come from Leeds to London in the ordinary way, 
 
( 21 ) 
 
 a stage coach ! No : he must have a post-chaise, 
 and live elegantly on the road at the plaintiff's 
 
 expense ; who, it appears, at different times gave 
 to or paid for him to the amount of £5.2 : 196'. in 
 money, besides presents of liquor and other 
 things. So that his own hot imagination was 
 further heated we find by the spirit of brandy : 
 for all which favours, in a third letter, his expres- 
 sion is, " I thank you in the name of our Saviour 
 for all kindness to me." Thus is the Deity in- 
 troduced to thank her for her services : but this, 
 I suppose, like the fulness of God, as was ob- 
 served by one of the counsel, is to be taken 
 figuratively. I might, I believe, with more pro- 
 priety say, that the acceptance of this £50 a-year 
 was figurative, and expressive of his designs upon 
 the lady's whole fortune. 
 
 We will take a short view how he proceeded to 
 come at it. The lady comes to town by his per- 
 suasions, where possibly she had never been be- 
 fore ; goes and lives in Surrey as in an inquisition, 
 for she is put into a house environed by a high 
 wall, and no one is to have access to her but her 
 pastor, or the attorney, on the present occasion of 
 preparing the deed in question, whereby the de- 
 fendant was to step into and secure a part of her 
 fortune under the veil of friendship, or rather by 
 lighting up in her breast the flame of enthusiasm ; 
 and undoubtedly he hoped in due time to secure 
 
( 22 ) 
 
 the whole by kindling another flame, of which the 
 female breast is so susceptible ; for the invariable 
 style of his letters is, " all is to be completed by 
 love and union." But to return. In this place 
 of inquisition she is by them tutored to be private 
 in her charity ; so that her relations, who are 
 injured, were to know nothing of her present 
 bounty. But would not any man of honour in 
 the profession have told her, " Madam, you are 
 going to do a thing which may embarrass your 
 circumstances, and injure your relations ; a thing 
 which the law will not support unless it is fairly 
 and openly obtained ; and, therefore, unless you 
 will apprise your friends of it, I will not be con- 
 cerned." This, I say, was incumbent on the 
 attorney to have done ; but this was omitted, and 
 it was done in secret. 
 
 Yet let it not be told in the streets of London 
 that this preaching sectary is only defending his 
 just rights, and must be supported in them ; let 
 them not be persecuted, I repeat, but many of 
 them deserve to be represented in puppet-shows. 
 I have considered this cause not merely as a 
 private matter, but of public concernment and 
 utility. Bigotry and enthusiasm have spread their 
 baneful influence amongst us far and wide ; and 
 the unhappy objects of the contagion almost daily 
 increase. Of this not only Bedlam, but most of 
 the private madhouses, are melancholy and strik- 
 
( 23 ) 
 
 ing proofs. I have staid much beyond my time : 
 I have given this cause a long and patient hear- 
 ing, and, inasmuch as the deed was obtained 
 on circumstances of the greatest fraud, imposi- 
 tion, and misrepresentation that could be, let it 
 be decreed : — 
 
 That the defendant, Relly, execute a release to 
 the plaintiff, Mrs. Norton, of this annuity, and 
 deliver up the deed for securing it ; and if any 
 difference arise, let the same be settled by the 
 master, who is to take an account of all sum or 
 sums of money paid by the plaintiff, Mrs. Norton, 
 to the defendant, or to his use ; for which pur- 
 pose all proper parties are to be examined upon 
 interrogatories, and all which sums the defendant 
 is hereby decreed to pay, together with the costs 
 of this suit. 
 
 I cannot conclude without observing that one 
 of his counsel, with some ingenuity, tried to 
 shelter him under the denomination of an inde- 
 pendent preacher : I have tried, in the decree I 
 have made, to spoil his independency. 
 
 Fanshaw v. Rotheram. 
 
 In this case it was determined that there can- 
 not be a prescription in non decimando against a 
 law impropriator; but that it is not necessary to 
 
( 24 ) 
 
 produce the deed of severance ; it is sufficient to 
 show that it existed : and accordingly, as in the 
 present case, the defendant, and those under 
 whom he claimed, had been upwards of 130 years 
 in the pernancy of the tithes ; a bill by the im- 
 propriator was dismissed. 
 
 The Lord Keeper. — In this case two points have 
 been argued at the bar, though one only has been 
 insisted upon. I shall therefore take notice of 
 and give my sentiments upon both of them, 
 though I think the present cause ought to be 
 determined upon neither. 
 
 The first is, whether a layman can prescribe 
 against a lay impropriator in non decimando, and 
 by immemorial nonpayment of tithes acquire a 
 right of exemption from payment of them. 
 
 I do not find the general doctrine of the books 
 disputed, that a spiritual person may, that a lay 
 person cannot, prescribe in non decimando, but 
 only in modo decimandi. This position has been 
 constantly maintained without any restrictions or 
 qualifications whatsoever, both before and since 
 the statutes made on the dissolution of the mo- 
 nasteries. And this harmony of the books, and 
 invariable opinion of the judges of the realm, 
 establishes this proposition for law in all courts of 
 judicature, as effectually as if it had been so de- 
 clared by the legislature. 
 
 The judges and reporters, indeed, though they 
 
( 25 ) 
 
 all agree in the law, may, and I believe do, differ 
 
 in assigning the reason upon which this law was 
 grounded. But this does not, in my opinion, 
 weaken, but rather strengthens, a point so fully 
 recognized. For where the law is clear, and uni- 
 versally agreed upon, and yet an equitable reason 
 does not obviously arise for the introduction of 
 it, it is natural to suppose that, like other cus- 
 toms, it was introduced for general reasons of 
 utility not now visible ; and while they are per- 
 mitted to prevail by the legislature, no private 
 man should presume to question them. 
 
 But the most probable reason for its introduc- 
 tion seems the one assigned in the books — in 
 favorem ecclesice. The wisdom of the law gave 
 different liberties, rights, and privileges, to dif- 
 ferent members and orders of the community ; 
 particularly sanctce ecclesice. These rights are 
 sacred, and they can never be altered but by the 
 whole community. Our kings by their coronation 
 oaths have from time to time been bound to de- 
 fend them. And when they have been abused, 
 or by alteration of the civil circumstances of the 
 times become inconvenient, the legislature has 
 redressed them. I make these observations to 
 show that a fixed law, whether positive or com- 
 mon, is not less obligatory because its reason is 
 above our comprehension. 
 
 
( 26 ) 
 
 But a very good reason for this law may, in 
 my opinion, be very easily assigned. The laws 
 of this country had said tithes were due of com- 
 mon right, to be applied to the ends and purposes 
 for which they were ordained. Consequential to 
 that it was necessary to ordain that the temporary 
 possessor should not alienate them from those 
 purposes ; and if the law had permitted a pre- 
 scription in non decimando, a door would have 
 been left open to such alienations, though juries 
 had been as strict as Lord Coke supposes them 
 regardless of their oaths. 
 
 If a judge, therefore, is to pronounce the law 
 without any authority for fixing the reason of 
 that law, what ground has he to alter the law, 
 because he cannot approve the reasons that 
 others have given, or though he may not be able 
 to assign a satisfactory one himself? He must 
 say the father shall be postponed to the uncle in 
 succession to his own son ; yet the reason why 
 land gravitates, and cannot ascend to the father, 
 but may to the uncle, is not quite geometrical. 
 He must have said that a collateral warranty 
 would have bound without assets (before the 
 legislature said otherwise,) though the reason in 
 the books is not quite manly. Yet I am tho- 
 roughly persuaded that these, and all such pro- 
 positions in their origin, were grounded on great 
 
( 
 
 A\\d useful principles, because they are a part of 
 a system of laws that have produced the noblest 
 constitution in the universe. 
 
 Therefore, though Mr. Wilbraham would ex- 
 plain away this law as against a lay impropriator, 
 and be sine munere amicus for the church; yet I 
 must be equal to both. And I am very clear, 
 as the law now stands, that no man can prescribe 
 in non decimando against a lay impropriator. 
 The cases to this effect are too numerous to bear 
 citation. 
 
 The next question is, whether a man can avail 
 himself of setting up a title to tithes, without 
 giving evidence of a grant from the parson, &c. 
 or impropriator, by showing that grant, or by 
 proving that such grant existed and is lost. 
 
 In the first place it is to be observed, that the 
 parson has not in himself the mere right of 
 things, which he has in right of the church ; the 
 fee simple is in abeyance ; so that every act that 
 he has done may be avoided when he ceases to 
 be incumbent, except such as were done with 
 the consent of the patron and ordinary. The 
 question therefore is narrowed to this; could an 
 alienation with the consent of the patron and 
 ordinary be set up without producing it? 
 
 Tithes in kind being of common right, the 
 parson could sue for the subtraction in the court 
 spiritual, and the only remedy for the person 
 
( 28 ) 
 
 exempted, by discharge, or composition, or by a 
 modus decimandi, was by prohibition. The tithes 
 compounded for, or discharged by a modus, be- 
 came lay fee, and therefore the spiritual court 
 could not hold plea of them. And if through 
 ignorance in such case the owner set out the 
 tithes, and the parson took them, he was a tres- 
 passer. The composition or modus became a 
 spiritual fee, and was sueable for in the spiritual 
 court. (Here his lordship read the whole pas- 
 sage.) 
 
 Now, it seems to me very clear, that by the 
 rules of law, if the person suing this prohibition 
 declared in attachment upon it, he is bound to 
 plead this indenture with a profert. The books 
 of entries prove this, and I can see no method by 
 which he could avail himself of this discharge, 
 without the production of the original deed 
 whereby lie claimed this discharge. 
 
 It is observable on this writ, that the prohibi- 
 tion must be supported not only by the grant, 
 but an averment of the continuance of the re- 
 compense to the church, G nunc persona Ecc' 
 prted" tenens proed? 4 Acras: which makes the 
 position of Lord Hobart in Slade v. Drake, fo. 
 297, questionable, that the grant of parson, pa- 
 tron, and ordinary, is good of itself, without any 
 recompense or consideration : though that notion 
 seems to be countenanced in the Bishop of Win- 
 
( 29 ) 
 
 Chester's case, 2 Co. 44. But that opinion semis 
 to be grounded on this, that a recovery against 
 the parson with an aid pr'icr of the patron and 
 ordinary, and judgment by default, would bind 
 the church. Which I conceive was owin£ to the 
 credit of a recovery intended to be made on title, 
 for I cannot find that parson, patron, and ordi- 
 nary, could alien the possessions of the church, 
 without a perdurable recompense. 
 
 I am therefore of opinion, that at common law 
 no man could avail himself of a discharge from 
 tithes by grant, but by producing it. 
 
 The next consideration is, what difference is 
 introduced by the statutes, and whether title can 
 be made to tithes without producing such grant 
 at this time. 
 
 By statute 31 Hen. VIII. c. 13, s. 2, parson- 
 ages appropriated, belonging to dissolved monas- 
 teries, are to be held and enjoyed by the king, 
 his heirs and successors, in as large and ample a 
 manner and form as the religious persons held 
 the same. Now the religious persons held the 
 appropriations with a title by common right to 
 tithes, uncontrolled by a prescription in non deci- 
 mando, or by any title set up against them by 
 any means but a grant produced, showing a 
 severance, or by real composition, as I have 
 before endeavoured to make out. 
 
 In this sense the statute is taken by the court 
 
( ao ) 
 
 in the case of the Corporation of Bury ?•. Evans, 
 Com. Rep. 651, where this observation is made, 
 " As Lord Hobart saith, in Slade and Drake's 
 case, fo. 296, a temporal person succeeding a 
 spiritual person in discharge (and it is the same 
 in the perception of tithes,) is to be reckoned as 
 a spiritual person, and not as a temporal ; and 
 consequently a man who could not prescribe 
 against an ecclesiastical person, cannot any more 
 prescribe against the patentee, who derives his 
 title from and under him, and is in nature of his 
 representative." If he cannot prescribe against 
 a temporal person, which must be by plea, be- 
 cause that temporal person is in virtute and m 
 statuti, in the place and capacity of the spiritual, 
 the same reason holds against his pleading in any 
 other manner, or any other discharge or exemp- 
 tion against a temporal, than he could have 
 insisted on against a spiritual person. 
 
 But it is said, that tithes are now become lay 
 fees, and persons may have remedy for recover- 
 ing their rights to them in the king's temporal 
 courts ; and that they may be assured and con- 
 veyed as lands and tenements ; and therefore it 
 is said, that a man may make the same title to 
 tithes as to any other inheritance, and that he 
 may supply the loss of this original grant by 
 subsequent conveyances and possession. But it 
 seems to me that this statute 32 Hen. VIII. is 
 
( 31 ) 
 
 silent as to the manner in which a person must 
 make out his right to tithes against the church, 
 or patentees standing in the place of the church. 
 The statute seems to have left that as it stood at 
 law, and only provides that a person lawfully 
 seised or possessed of tithes, and disseised or put 
 out, might assure and recover them in the king's 
 courts, like other temporal possessions. Before 
 this statute the king's temporal courts exercised 
 no jurisdiction over them; they could not be 
 demanded in a praecipe or other writ, no writ of 
 covenant, no fine could be levied of them ; and 
 the statute supposes that the Chancery was to 
 devise and form new writs for recovery of them ; 
 though this was found unnecessary, as the judges 
 were of opinion that a special count would answer 
 that purpose. 
 
 But the statute was anxious not to be ex- 
 pounded so as to vary the trial of the right to 
 take them, or the defence against paying them. 
 And therefore the seventh section provides, 
 " that this act shall not extend nor be expounded 
 to give any remedy, cause of action, or suit in 
 courts temporal, against any person refusing to 
 set out his tithes. But in all such cases the per- 
 son, being ecclesiastical or lay, shall have his 
 remedy in the spiritual court, according to the 
 ordinance in the first part of this act (section 2,) 
 and not otherwise." So that this act seems to 
 
( 3 2 ) 
 
 have left the suit for subtraction of tithes, and 
 the defence against such action, as it was left by 
 the statute 27 Hen. VIII. c. 20, where in section 
 3 the proviso is, " that every person and persons 
 being parties and privies to any such suit, shall 
 and may make and have his and their lawful 
 action, demand, or prosecution, appeals, prohi- 
 bitions, and all other defences and remedies in 
 every such suit, according to the said ecclesias- 
 tical laws, and laws and statutes of this realm, in 
 as ample and liberal manner and form as they 
 might have had if this act had never been made." 
 It is true that in all cases of temporal rights, 
 the courts of law consider quieta longa, et paci- 
 jica possessio as the best evidence of title : I think 
 it one of the wisest and most solid rules of the 
 law. They will therefore presume stale titles in 
 writing barred by other conveyances probably 
 lost, because the possession contrary to those 
 conveyances cannot otherwise be accounted for. 
 Possession is so strong a title that a judge may 
 have emphatically said, he would presume an act 
 of parliament to support and confirm it. Pos- 
 session is a title to recover upon, and primd facie 
 evidences the mere right. But not in this ano- 
 malum, the case of tithes, for there it evidences 
 no right, though it should be ultra minwriam 
 hom'tnis quieta et pacifica. Where possession 
 evidences a right, there may be reason to presume 
 
( 33 ) 
 
 somewhat to answer a stale and latent title : but 
 where possession does not evidence a right, there 
 seems to be no grounds for such a presumption ; 
 because that would be to presume a tide. I 
 suppose in this reasoning that I have before 
 proved, what is in effect conceded, that simple 
 possession is as ineffectual against a lay impro- 
 priator as against a spiritual person. 
 
 But it is objected, if this be so, no man can 
 safely purchase from a lay impropriator, for the 
 deed of severance cannot be preserved for ever ; 
 and if the deed be lost, the title is lost, and the 
 inheritance purchased reverts to him that sold it. 
 But I by no means think this consequence would 
 ensue ; for I do not think it necessary to this de- 
 fence to produce the deed of severance, but to 
 give evidence that there was one. The law re- 
 quires only the best evidence that the thing in 
 dispute will admit of, and a very slight proof 
 might be sufficient to establish such a deed of 
 severance, though it were lost. 
 
 And therefore the opinion that I give is only 
 that a title cannot be set up at law against the 
 common right by length of possession of the tithes, 
 or by simple grants of them, or by both together. 
 
 I have given my opinion upon the points of 
 law abstractedly considered : I will now apply 
 them to the particular evidence of this case, and 
 to the jurisdiction of this court. 
 
 9 Feb. 30 Eliz. this rectory of the church of 
 
 d 
 
( 34 ) 
 
 Dronfield was vested in the crown, and the tithes 
 arising in Dronfield and Holmsfield were severed 
 and granted to Edmund Downing and Miles 
 Doding and their heirs. I am of opinion that 
 from that moment these parcels became lay fee, 
 discharged of all privilege and protection that 
 was connected to them by the statutes as spiritual 
 inheritances ; and that, between the proprietors 
 of them, and all persons claiming under the 
 grantee, every species of defence was and is com- 
 petent as between plaintiffs and defendants, in a 
 contest respecting any other lay inheritance ; and 
 the reconveyance of these tithes not being pro- 
 duced, I cannot consider the plaintiff as making 
 any title to them. 
 
 The residue of this rectory, for what appears 
 to the contrary, continued in the crown to the 
 24th of May, 1612, and is then granted to Francis 
 Morrice and Francis Phelps, and their heirs, and 
 particularly all tithes in Coldaston and Stubley, 
 int. al. 4 July, 4 Car. 1628. The said premises 
 are conveyed for a consideration of £750 to 
 Lionel Fanshaw and his heirs. From 1628 to 
 this time, a period of 131 years, this residue is 
 supposed to have descended without any inter- 
 vening settlement to the present plaintiff; and 
 though no enjoyment has ever been had of the 
 right in question, which all this time has been 
 alienable ; a court of equity is desired to interpose, 
 
( 35 ) 
 
 and disturb a right enjoyed for almost a century 
 and a half. 
 
 Now that kind of equity is beyond my com- 
 prehension. Bills for quieting men in their rights 
 and possessions against the latitude of legal con- 
 troversies, and multiplicity of suits, have manifest 
 equity, dealt with a sober hand. But bills to dis- 
 turb and disquiet men's possessions, would be in 
 the highest degree rigorous and oppressive. The 
 voice of the law is caveat emptor ; the voice of 
 equity is, tencat emptor, though his title be bad 
 and defective, if he has not purchased with ini- 
 quity. 
 
 The defendants appear before me with a merit 
 which this court ever recognizes ; the merit of 
 being purchasers for a valuable consideration : 
 with respect to the tithe of Dronfield and Holms- 
 field, they appear to be purchasers before the 
 grant of Jac. 1. in which the grant of Queen 
 Elizabeth is excepted ; and with respect to the 
 tithe in Stubley, they are purchasers in the year 
 1632, with a regular deduction of title to the de- 
 fendants. 
 
 So that I should decree for the plaintiff against 
 about 130 years quiet possession, when he, and 
 those in whose place he stands, have been guilty 
 of a wilful and inexcusable negligence during tha'' 
 whole period. And upon what? Because the 
 title of the purchaser may be defective in law. 
 Now that seems to me to be contrary to all equity ; 
 
 d 2 
 
( 36 ) 
 
 a purchase for a valuable consideration is a bar 
 to the jurisdiction, unless repelled by showing 
 that the purchase was made against conscience. 
 Will it be said they purchased with notice of the 
 common law right of the rector ? How can I 
 say that at this distance of time ? How can I 
 say that no other parts of this rectory were se- 
 vered ? That the purchasers were not made to 
 believe they were? And either of these cases 
 would bring them under the protection of this 
 court. Nay, I am of opinion, the paying their 
 money does ; and that the plaintiff must repel the 
 merit of that, by affecting the purchase with 
 iniquity, to entitle himself to the aid of this court. 
 
 I may be mistaken ; but in my judgment and 
 conscience, I think I should pronounce on the 
 most narrow and illiberal principles in decreeing 
 for the plaintiff, and make this court an inquisi- 
 tion to torture men's titles. 
 
 However, I have much more able judgments 
 than my own to strengthen me in this opinion. 
 The case of Medley v. Talmey, 8 W. 8., was much 
 weaker for the defendant than the present case. 
 There the defendant insisted only on a deed of 
 purchase of the land tithe free in 1652 ; and 
 though but forty-two years' possession in the de- 
 fendant, and consequently the same laches in the 
 plaintiff, the court left the parties to law, and dis- 
 missed the bill. The observation on this case in 
 Comyns is, " It is probable the defendant had 
 
( 37 ) 
 
 a legal exemption, which the plaintiff* was con- 
 scious of, but thought to take an advantage of the 
 loss of the defendant's deeds : but the court, not 
 favouring his design, dismissed his bill." It is 
 ten times as probable here, that the defendant 
 originally had a title. For the tithes themselves 
 have been actually bought and conveyed several 
 times over. 
 
 The next case is the Corporation of Warwick 
 t\ Lucas, where a defendant insisted generally on 
 a discharge by virtue of a prescription, bull, order, 
 or other lawful means, and had ever since been 
 held free. The bill was dismissed. Now in these 
 two cases the court determined that equity could 
 not give its assistance to disturb men's posses- 
 sions, for in neither was there any pretence of a 
 severance. 
 
 And the comment in the report to avoid the 
 effect of them is destitute of truth and sense. It 
 is said, " In these cases it did not appear directly 
 whether the defendant could make out a legal 
 discharge or not." Now in Medley v. Talmey, 
 it directly appeared that he could not, for the de- 
 fendant only insisted upon, and only proved at 
 the hearing, the deed of 1 752, and swore by his 
 answer all other deeds were lost. In the second 
 case no particular exemption was insisted upon 
 by the answer, yet the report goes on, " It was 
 probable they could, and the plaintiffs thought it 
 so probable, that they cared not to try that point, 
 
( 38 ) 
 
 and consented the bills should be dismissed with- 
 out costs." Now how could the plaintiffs think 
 that the defendants could show a severance or 
 composition, when they had alleged no such thing 
 in their answers ? But what is the conclusion ; 
 " If the defendant has a probable ground of dis- 
 charge, it is not proper to decree against it, with- 
 out putting it in a way of examination, which the 
 court seemed willing to do in these cases." And 
 in the case of the Corporation of Bury v. Evans, 
 the grounds of the determination with respect to 
 the discharge were, " There is nothing to induce 
 a probability, that Eldo Farm and Old Haw Farm 
 w r ere the same ;" so that, with respect to the 
 present case, I consider these three cases as au- 
 thorities for my decision. 
 
 But here I desire to be understood that I ex- 
 press no concurrence in the other point in the 
 corporation of Bury v. Evans, viz. that a court 
 would decree against a long and pacific possession, 
 if no probable discharge is alleged. For 29 Car. 
 2. Dr. Reeves, dean of Windsor, exhibited his 
 bill against Mr. Levison, to discover writings 
 concerning some tithes in Woolverhampton, parcel 
 of the corporation of the deanery ; the defendant 
 pleaded a fine, levied Hil. 13 Eliz., and a non 
 claim by the present dean, which was allowed to 
 be a good plea. For as I am at present advised, 
 I renounce all concurrent jurisdiction on the legal 
 right of tithes, and think I can only decree on an 
 equity. 
 
( 89 ) 
 
 I do not know whether the authority of these 
 two cases has ever been decreed against ; they 
 have never been appealed from, which gives them 
 great strength in my eye ; and the case of the 
 Corporation of Bury v. Evans is a mere legal 
 determination, without a grain of equity. 
 
 It is a hard case to make a man lose what he 
 has innocently purchased. So hard, that the 
 rigor of the law treats it with equity. A mort- 
 gagee getting a verdict against the opinion of the 
 judge, shall not be molested with a new trial for 
 the honesty of the cause. A wrong-doer, per 
 negligentiam, shall have the same indulgence. 
 And shall a court of equity wrest from the owner 
 inheritances descended from an ancestor, and 
 bought with the patrimony of a family? I pro- 
 fess I cannot, as a judge of this court, have a 
 difficulty ; Equitas enim lucet ipsa per se, dubitatio 
 cogiutionem significat injurice. 
 
 Sims v. Bennett. 
 
 In this case it was decided that the question, 
 whether a tithe be great or small, is to be deter- 
 mined by the nature of it, and not by the mode 
 or place of its cultivation, or the use to which it 
 is applied, and, therefore, the tithes of beans and 
 peas, though gathered green by the hand for the 
 
( 40 ) 
 
 food of man, are a great tithe, and included under 
 the term decimce garbarum. 
 
 The Lord Keeper. — This is a bill brought by 
 the vicar of Eastham for tithes of beans and peas 
 gathered green and sold in the market. The 
 bill seems to admit that had these beans and 
 peas come to maturity, the rector would have 
 been entitled to them ; and, therefore, the ques-' 
 tion is, whether, from their being gathered green 
 and sold in the market, the vicar is entitled. 
 
 The rector is of common right entitled to all 
 sorts of tithes : the vicar can claim against the 
 rector only by endowment or prescription ; and, 
 therefore, in Spring's case, Moor, 7G1, it is 
 holden, that a rector cannot prescribe against a 
 vicar endowed ; because where an endowment 
 is, no prescription can prevail against it. So in 
 the same book, 910, minutce decimce carry not the 
 tithes of glebe lands, because the endowment 
 goes no further than the words of the donation 
 carry it. 
 
 In this cause it appears from the evidence that 
 the usage of gathering green is new and modern, 
 occasioned, perhaps, by the increase of the inha- 
 bitants in this town and neighbourhood ; but be 
 that as it will, the plaintiff, the vicar, is in pos- 
 session of no such right to the tithes of beans 
 and peas gathered green, Sec. by prescription. 
 And the fact of usage giving the vicar no such 
 right, I cannot decree for him upon his claim 
 
( 41 ) 
 
 until it is established at law, to be the law, tli.it 
 the vicar is entitled to the tithes of such beans 
 and peas. 
 
 But the endowment has been insisted upon on 
 the part of the vicar, and this has been treated as 
 a new case ; and as it has been mentioned so to 
 be by the counsel on both sides, I shall give my 
 thoughts upon it. 
 
 That tithes are due jure divino is a doctrine now 
 exploded ; the right, therefore, depends upon 
 municipal laws. By those laws the demand 
 is given de communi jure to the rector, and the 
 vicar's right can be only by endowment, or by 
 prescription and usage as evidence of an endow- 
 ment. There being no prescription in this case, 
 it brings it to a question of construction upon the 
 words of the endowment. 
 
 The endowment was made by the Bishop of 
 London before any statutes relating to endow- 
 ments : the words are, " Vicarius kabeat et per- 
 cipiat decimas hortonun, ac omnimodas decimas, 
 prceter decimas garburum fceni et molendini." It 
 has been insisted that beans and peas gathered 
 green could not be garba, and, therefore, could 
 not go to the rector ; for that garba signifies 
 grain bound up in a sheaf, which beans and peas 
 gathered green could not be ; but this is a fallacy, 
 for when the law speaks of garba or sheaves, it 
 speaks of the whole produce, stalk and all. The 
 word garba means quod ligari potest, and proba- 
 
( 42 ) 
 
 bly peas were actually garbed when the word 
 was introduced into the canon law ; but since 
 that, barley, oats, and peas are not garbed, and 
 wheat continues to be garbed, because the straw 
 is of value, and to preserve it unbroken, and yet 
 barley and oats are dec'imcE garbarum, which words 
 carry great tithes in contradistinction to vicarial 
 tithes. Spelman explains gar.bce to be such fruits 
 of the earth as are naturally fit to be bound, and 
 Lindwood explains it the same way. It follows, 
 therefore, that garba means and refers to such 
 grains as, when come to maturity, were usually 
 or might be bound together, and does not extend 
 to things improper to be bound. 
 
 The old cases make the nature of the thing to 
 be the distinction between small tithes and great 
 tithes. So is Udall v. Tindall, Cro. Car. 28 ; 
 Wharton v. Lisle, 4 Mod. 103; and Bedingfield 
 v. Frake, Moor, 909, where corn was holden to 
 be great tithes in a garden, and the modern cases 
 concur with the distinction. Nicholas v. Elliott, 
 in Bunbury, is unintelligible in itself, but has 
 light given to it by Gumley v. Burt, in Bunbury, 
 where the distinction is holden. 
 
 There have been cited Stephens v. Martin, and 
 Nicholas v. Elliott, against the distinction, and 
 no other cases. The first case is answered by 
 its being observed, that in that case it did not 
 appear what the endowment was, or whether the 
 impropriator contested it. And as to Nicholas 
 
( *3 ) 
 
 p. Elliott, it appears by Gumley v. Burt, that the 
 usage in that ease made the difference. These 
 cases prove these two propositions : first, that the 
 vicar has no claim to tithes but by endowment or 
 prescription ; secondly, that where the endow- 
 ment is not by special but by general words, as 
 minutce decrmce, the law distinguishes between the 
 tithes according to the nature of the thing ; and 
 the mode of the cultivation, as in garden-like man- 
 ner, does not alter the tithes, as in Gumley v. 
 Burt ; much less can the mode and time of gather- 
 ing alter the right, which has attached in the rec- 
 tor before the time of gathering. The rector is 
 entitled at the time of committing the grain to 
 the earth, and it would make his right strangely 
 precarious and uncertain to put it upon the ma- 
 nagement of the owner ; if that were the case, 
 then a great tithe, gathered before it comes to 
 maturity, would be a small tithe ; and yet in 
 Hodgson v. Smith, in Bunbury, tares cut, whether 
 green or ripe, are a great tithe. Nothing breaks 
 into these resolutions, but that the Exchequer 
 have determined the tithe of clover-seeds to be a 
 small tithe. The reason the Exchequer made the 
 difference between seed and the other cases was 
 not grounded on reasoning, but on authority. It 
 was because Lord Coke laid it down that seeds 
 were minutce decimce, and the Court of Exchequer 
 did rightly in conforming witli that rule as it was 
 established ; and, therefore, that case of seeds is 
 
( 44 ) 
 
 to be considered as an exception to the general 
 rule, and does not vary the rule itself; but this 
 exception has never been carried further than to 
 seeds, not to grain. 
 
 But another distinction has been taken from 
 the application of peas and beans to sustenance 
 of man, not of cattle ; but this will not hold, as 
 it would go too far, for if things are small tithes 
 because used for the sustenance of man, it would 
 comprehend all grain, as barley for beer or bread, 
 and oats for bread or family uses. 
 
 Therefore I am very well satisfied, in point of 
 law, that these tithes are rectorial ; but if I had 
 not been so, I should have decreed against the 
 plaintiff for want of enjoyment. Let the bill be 
 dismissed ; but, as it is a new case, without costs 
 on either side. 
 
 This decree was afterwards affirmed in the 
 House of Lords, 7th December, 1762. 
 
 The Attorney General v. Cholmley. 
 
 In this case an agreement had been made be- 
 tween the rector and inhabitants of a parish, 
 allotting lands in lieu of the ancient glebe, with 
 some addition in consequence of the rector's 
 losing certain rights of common by inclosure, and 
 also providing an annual pecuniary compensation 
 in lieu of tithes. Upon the successor's declining 
 
( 4,5 ) 
 
 to abide by it, an amicable suit was instituted, to 
 which the ordinary, (but not the patron, who was 
 the king,) was made a party, and the parishioners 
 agreeing to increase the stipend, a decree was 
 made by consent to ratify the articles. It was 
 now determined that this agreement, though ac- 
 quiesced under for eighty years, (forty of which, 
 however, the rector, against whom the decree was 
 made, had remained incumbent,) was not bind- 
 ing as to the pecuniary composition, the patron 
 not having been a party, and the composition 
 having been made only with regard to the past, and 
 not to the future increasing value of the tithes. 
 
 The Lord Chancellor. — This is an information 
 brought by the attorney general at the relation of 
 Dr. Blair, for an account and payment of tithes 
 in kind ; the claim of the rector arises de com- 
 muni jure. The defence set up against the claim 
 is, first, an agreement entered into in the year 
 1664 between the then rector and the owners of 
 the lands in the parish, for accepting a yearly sum 
 of £80 in lieu of tithes. I am of opinion that the 
 agreement on the face of it is unequal as to the 
 consideration thereby agreed to be paid to the 
 rector ; for it appears that the agreement was 
 entered into in order to effectuate an inclosure of 
 the open fields in the parish, and no consideration 
 is given as to the future improvement of the lands 
 by such inclosure, of which the occupiers would 
 reap the benefit. But I am clear that even if 
 
( 40 ) 
 
 the agreement had been equal, it would not have 
 bound the successor in the rectory, but would be 
 void as against him. 
 
 The next defence set up against the plaintiff's 
 claim is a decree in 1677, which appears to have 
 been made in a cause, instituted by consent, be- 
 tween the same parties that were parties to the 
 agreement in 1664; for as to the bishop of the 
 diocese being a party, I consider him set up as a 
 man of straw, merely for form. And it is mate- 
 rial to observe that the parties themselves did not 
 consider the agreement which had been executed 
 as binding on the rector ; for they considered the 
 annuity of £80 as not being an adequate consi- 
 deration for the rector's having given up his 
 tithe in kind, and, therefore, they entered into a 
 new agreement for allowing him an addition of 
 £16:85. Id. per annum; and on being allowed 
 that addition, the rector by his answer consents 
 to have the agreement established. It is true 
 that the decree founded on this agreement does, 
 in verbis, bind the successors in the rectory ; but 
 this was a decree founded on an agreement, which 
 the court never enters into the propriety of, when 
 a bill is brought by consent of parties ; and all 
 such decrees are drawn up by the register of the 
 court in the words of the agreement, as a matter 
 of course : but I am of opinion that such decree 
 cannot bind the successor. The defendant's 
 counsel have, it is true, cited cases of a similar 
 
( 47 ) 
 
 nature, and urged the case of Edgerley r. Price, 
 reported in Finch. I have looked into that case, 
 and think it a very extraordinary one, particularly 
 as the judge sent for the parties to attend him. 
 I can pay no credit to it, nor look upon it as any 
 authority, or any thing more than the dream of 
 some note-taker in this court. 
 
 The agreement and the decree being thus laid 
 out of the case, the next consideration is, whe- 
 ther a court of equity can relieve in the present 
 case. And I am of opinion that there is not a 
 better rule than that of cquitas sequitur legem. It 
 is a fixed rule at law, that the crown and the 
 church cannot be prescribed against : the first, 
 on account of its high dignity ; the second, on 
 account of its imbecility : quia fungitur v'ice mi- 
 noris, conditionem suam mcliorare potest deteriorare 
 nequit. At common law, although the church 
 could alienate with consent of patron, parson, 
 and ordinary, yet it was under various restric- 
 tions. The patron must be absolutely seised in 
 fee simple : if he was seised only of a fee simple 
 conditional, or bare fee, the alienation was void. 
 Thus it stood till the disabling statutes were 
 passed, which were wisely framed to prevent all 
 alienations, except by authority of parliament. 
 The patron was under the influence of interest : 
 the parson complied with false notions of grati- 
 tude ; and the ordinary, where the crown was 
 the patron, (especially if he had one of the lesser 
 
( 48 ) 
 
 bishoprics,) was not so unprejudiced in his con- 
 sent as he ought to be. In the present case, the 
 bar set up by the defendants amounts to a mode 
 of alienation. If the decree be void, as I am of 
 opinion it is, what then is there to send to law 
 when the point is about the extent of a decree of 
 this court ? And even if it were sent thither, it 
 must come back again to be ultimately deter- 
 mined here. 
 
 It has also been objected that the length of 
 time ought in this case to bar the plaintiff; but I 
 think the legal rule, that no prescription can run 
 against the church, must be adhered to. And, 
 indeed, the length of time for which this agree- 
 ment has been acquiesced under is not so great as 
 at first sight appears : Mr. Adamson, who was 
 rector in 1677, and party to the decree, and had 
 a right to establish the agreement during his life, 
 did not die until the year 1718. 
 
 It has been further objected by the counsel for 
 the defendants, that the plaintiff's bill prays to 
 set aside the agreement so far only as relates to 
 the composition in lieu of tithes; but submits 
 that the lands allotted in lieu of ancient glebe 
 may continue in the state they now are in, which 
 the defendants insist the plaintiff cannot do, but 
 that the agreement must be confirmed or re- 
 scinded in toto, and that the rector must give up 
 the lands allotted to him under the agreement, 
 which they contend are larger in quantity than 
 
( 49 ) 
 
 the ancient glebe, and which additional quantity 
 was a further consideration to the rector in the 
 exchange. But this would be making wild work, 
 and, indeed, the proposition was only adopted at 
 the bar as an effort of despair. I am clear that 
 the lands allotted to the rector were only in lieu 
 of the ancient glebe, and that the difference arose 
 from the different quality of the land. The 
 agreement, though contained in the same deed, 
 is distinct ; one part allotting land in lieu of the 
 ancient glebe, the other providing an annual sti- 
 pend in lieu of tithes. I have no reason to think 
 that the lands allotted to the parson were for 
 more than the glebe and tithes. It is the quality 
 of the land, and not the quantity, which must 
 determine the extent of the composition. 
 
 Upon the whole the inclosure of the lands was 
 for the general benefit of the parish ; and such 
 lands will be continually increasing in value, 
 while the composition given to the rector in lieu 
 of tithes will be continually diminishing in value; 
 the composition here looks only to the value of 
 the past tithes, without any regard to the future 
 increasing value of tithes. In all acts of parlia- 
 ment which are made upon compositions with 
 parsons, they are allowed a compensation for 
 tithes upon improvements in futuro. If in the 
 present case the parties had made an allowance 
 for the future improved value of tithes, they 
 would have stood on a different footing, and I 
 
 e 
 
( 50 ) 
 
 should not have been inclined to relieve: they 
 then would have been purchasers for a valuable 
 consideration by allowing for the future improve- 
 ments. The equity of this court would have 
 been suspended by setting up equity against 
 equity, and I should have left the rector to his 
 legal remedy. 
 
 Decree an account of tithes from the time of 
 filing the information. 
 
 This decree was afterwards affirmed in the 
 House of Lords, 21st November, 1768. 
 
 Drury v. Drury. 
 
 The Lord Chancellor. — (After stating the prayer 
 of the bill and the settlement.) The question is, 
 whether, sitting in a court of equity, I can bind 
 the infant to a specific performance of this agree- 
 ment, and bar her from claiming her dower at 
 law and her share of the personal estate under 
 the statute? 
 
 The law of England, which, from a principle 
 of natural and political wisdom, allowed and en- 
 couraged early marriages, and from a principle 
 of equal wisdom disallowed young persons to 
 enter into personal contracts till they attained a 
 reasonable maturity of judgment, (which the uni- 
 versal consent of this nation fixed at the age of 
 twenty-one,) found it necessary to accompany 
 
( 51 ) 
 
 their maturity for natural contracts by its own 
 provision for the civil rights, reciprocal to both 
 the parties that entered into the marriage state. 
 
 In this, as well as in other cases, the ancient 
 law neglected personal estate as an object then, 
 as it really was, of no consideration, and solely 
 regarded the realty. The quantum provided for 
 the wife was one-third of the lands and tene- 
 ments of which the husband was seised during 
 coverture, with a reciprocity as to the nature of 
 the estate, which was required to be such, as if 
 the wife w r ere seised of the like estate, the hus- 
 band would be tenant by the curtesy. Of this 
 provision, made by law, she could not be de- 
 prived, nor could the husband augment it but by 
 contract after their respective ages of twenty-one 
 years ; for if the husband varied this proportion 
 by endowment, ad ostium ecclcsice, he must be of 
 full age : if the endowment is ex assensu patris, it 
 is of lands, &c. whereof the father is seised in 
 fee, and consequently is the endowment of the 
 father, and not of the son; but in both these 
 cases the woman is not bound till she enters and 
 agrees after the death of the husband. The law 
 throwing descents first on the males, seems to 
 have considered the woman as purchaser, and 
 sufficiently invited by dower to matrimony, 
 though she paid as a price for it her personal 
 estate. 
 
 This seems to be, in brief, the wisdom and 
 
 e 2 
 
( 52 ) 
 
 provision of the law touching rights consequen- 
 tial to the marriage contract; and I cannot find 
 that the law apprehended, or that, in fact, it 
 happened that marriages were impeded or pro- 
 crastinated by the disability of minors to agree to 
 settlements. If a want of such power is attended 
 with impediments of that sort, the legislature 
 knows when to interpose, and is alone, in my 
 opinion, equal to authorize the regulations. 
 
 The law has been indeed much arraigned as 
 being too liberal in its provisions to the wife; 
 and it was asked, what man of ,£15,000 per an- 
 num would marry, if the wife was to take a third, 
 when the heir was to be cramped to £10,000 per 
 annum, and stinted in luxury, expense, and diver- 
 sion, for the sake of his mother? It was inti- 
 mated that the husband might put in trust what 
 part of his estate he pleased ; to this it was an- 
 swered, " true, but then he cannot in his own 
 name avow on his tenants." I do not find, how- 
 ever, that these considerations weighed with the 
 legislature : I am sure they ought to be weighty 
 indeed to induce this court to vary legal rights. 
 
 But it is said that the law is altered by that 
 part of the statute of uses which relates to join- 
 tures, and that by the operation of that act, a 
 husband, settling any proportion of his lands on 
 his wife to vest in possession on the death of the 
 husband, may bar her of her dower, though she 
 be a minor. And, secondly, that this court, fol- 
 
( 53 ) 
 
 lowing the law, should bind ;t minor marrying; 
 where the provision made is as effectual and sub- 
 stantial for her. And, thirdly, that this is the 
 present case. And for the first position is urged 
 principally, that the words of the statute being 
 general, comprehend infants as well as mature 
 persons, there being no saving but a particular 
 provision to permit women to waive a jointure 
 made during coverture. 
 
 At the time of making the statute of uses (27 
 Hen. VIII.) it appears that lands were in general 
 conveyed to uses ; and the statute recites many 
 inconveniences and wrongs resulting from that 
 practice ; whether they all really existed may 
 perhaps be a question. The remedy at the same 
 time provided by the statute was the most obvious 
 and effectual that could be thought of, by anni- 
 hilating uses, by transferring the possession to 
 the use. 
 
 One of the grievances recited was, that uses 
 fraudulently deprived women of their dower, be- 
 cause the woman could be endowed of that 
 estate only whereof the husband was legally seised. 
 But as it very often happened that men had kept 
 part of their estates in use, and taken a legal 
 seisen for the rest as a provision for their wives 
 and issue, pursuant to the marriage agreements, as 
 appears by the sixth section of this act, which re- 
 cites, that " whereas divers persons have purchased, 
 or have estate made and conveyed, &c. unto them 
 
( 54 ) 
 
 and wives, and to the heirs of the husband, or to 
 the husband and to the wife, and to the heirs of their 
 two bodies, or to the heirs of one of their bodies, 
 or to the husband and wife for the term of their 
 lives, or for term of life of the said wife ;" and 
 consequently as the operation of the statute would 
 enlarge in many cases the dower of the wife con- 
 trary to the agreement of the marriage, the statute 
 enacts, with a retrospect, and with a future regu- 
 lation, " that where any such estate or purchase 
 as are before recited have or hereafter shall be 
 made, &c. for the jointure of the wife, that then 
 every woman married having such jointure made, 
 or hereafter to be made, shall not claim nor have 
 title to have any dower of the residue," &c. The 
 ninth section provides, " that if any wife have, or 
 hereafter shall have, any manors, &c. unto her 
 given or assured after marriage, for term of life 
 or otherwise in jointure, except by act of parlia- 
 ment, and the said wife after that, fortune to out- 
 live her said husband, the wife may, after the 
 death of the husband, refuse, and take her dower 
 at common law." 
 
 Upon the state which I have drawn of the com- 
 mon law, the wife, a minor at the marriage, was 
 under a disability of depriving herself of dower 
 ad communcm legem ; and this is a point always 
 to be had in view in the construction of the statute 
 concerning jointures. 
 
 The next material observation which occurs 
 
( 55 ) 
 
 to me is, that to support the plaintiff's claim, this 
 statute must operate either as a statute enabling 
 an infant to agree to a jointure and bind herself, 
 or, secondly, that it enables the husband to impose 
 a jointure on the infant wife, nolens volens, at his 
 own will and pleasure as to the quantum. 
 
 Now that it should have been the legislature's 
 intent to have given maturity to an infant to enter 
 into so material a contract under a natural defect 
 of judgment, and contrary to the protection which 
 the law, from intrinsic equity, in all cases ex- 
 tended to infants, I think, should appear to this 
 or to any court in capitals before it can be so 
 pronounced. Nothing, in my opinion, can evince 
 such an intent but express words, not capable of 
 being mistaken, and uttered by an authority that 
 must be obeyed. In the statute now under con- 
 sideration I find no express mention of infants, 
 nor a hint throughout the whole that their case 
 was particularly under consideration, or any in- 
 timation of a design to change their rights, or 
 deprive them of their legal protection. 
 
 But it has been urged from the statute to prove 
 such intent, first, that the words are general, and 
 that infants are comprehended. Now that argu- 
 ment must be supported upon this, that the 
 general words in an act of parliament must be ex- 
 pounded in a sense as universal as the terms will 
 reach ; whereas I conceive that they are restricted 
 secundum subjcctam materiem, and the legal con- 
 
( 56 ) 
 
 sideration of the acts, and persons to which they 
 are referred ; and that an exposition, ad idtimam 
 vim terminorum, is exploded by the best authori- 
 ties, and by such authorities as have grown to the 
 strength of rules and maxims of construction. 
 
 By the statute of Gloucester, c. 1. The dis- 
 seisee shall recover damages in a writ of entry 
 founded upon disseisin against him which is 
 tenant. But if a feofment be made to three 
 jointly, and the survivor never agreed, though he 
 becomes tenant he shall not be liable to damages. 
 Lit. sect. 685. Lord Coke's comment upon this 
 section is as follows : "■ Here it appeareth that 
 acts. of parliament are to be so construed, as no 
 man that is innocent, or free from injury or wrong, 
 be by a literal construction punished or enda- 
 maged. And therefore, in this case, albeit the 
 letter of the statute is, generally to give damages 
 against him that is found tenant ; and in this case 
 the survivor is found tenant, yet he shall not be 
 charged." 1 Inst. 360. a. And in fo. 365. b. he 
 states other cases within the letter and general 
 words of a statute not comprehended in it, and 
 draws this rule, qui hceret in litterd hceret in cortice. 
 And in fo. 372, b. he lays it down as a maxim, 
 that the surest construction of a statute is by the 
 rule and reason of the common law ; and if, with- 
 out regard to this rule, enabling statutes were to 
 extend to infants, the law has been hitherto very 
 much mistaken. 
 
( 57 ) 
 
 The statute of wills (32 H. 8.c. 1.) enacts in mor< 
 general words than the present, " that all and 
 every person and persons having, or which here- 
 after shall have, lands, S:c. may devise." The 
 words comprehend having lands, why not infants 
 at fourteen ? They can dispose of .£100,000, 
 why should they not of £.500 per annum, six 
 times less valuable ? The act was made for the 
 end of natural and civil justice, the payment 
 of debts, and provision of children. Plausible 
 reasons ! and yet it does not extend to infants. 
 But in order to enable an infant to agree to a 
 jointure, and to take less than the law has defined 
 as a reasonable provision, is it to be held that it 
 does extend to them ? Why, and for what rea- 
 son ? Because we are told, that men are become 
 too sordid to marry on those terms, and that she 
 would otherwise be compelled to live unmarried 
 to twenty-one. 
 
 So again in the construction of the statute 31 
 H. 8. that " all monasteries and colleges, &c. 
 which shall happen to be dissolved, &c. or by 
 any other means come to the king's highness, Sec. 
 shall be, by authority of this parliament, vested, 
 in the actual possession of the king;" it was ad- 
 judged that a monastery coming to the king's 
 hands by the statute 1 E. 6. was not within the 
 act, though comprised within the general words ; 
 and this upon the authority of the determination 
 on the 13 Eliz. c. 10. that bishops, though com- 
 
( 58 ) 
 
 prised within the general words, were not within 
 that statute : Archbishop of Canterbury's case, 2 
 Rep. 46. These are authorities so well esta- 
 blished, that, as I said, they are grown into rules 
 and maxims. 
 
 But, secondly, it was urged, and very properly 
 laboured by Mr. Solicitor General, that the pro- 
 vision with respect to jointures made to feme 
 coverts proves the rule of construction to be 
 general where not provided for ; but nevertheless 
 I cannot help thinking that the provision for them 
 was rather inserted in majorem cautelam against 
 the general words of the statute, which are obli- 
 gatory as to settlements made on wives, and 
 within which description infant wives, as such, 
 would have been comprehended. 
 
 These are the reasons which will not suffer me 
 to think that the statute enabled infant girls to 
 agree to settlements so as to bind themselves, and 
 bar them of their legal provision, dower. 
 
 Secondly. If the statute does not operate so 
 as to enable the infant wife to accept a settlement, 
 it must operate so as to enable the husband to im- 
 pose a jointure on her, nolens volens, at his own 
 will and pleasure as to the quantum. 
 
 I really know not which of the propositions is 
 most repugnant to natural justice, and to the 
 principles of the common law ; for the estate 
 which is to bar dower is of no defined value by 
 the statute, and if it be made up of the qualities 
 
( 59 ) 
 
 and accidents specified, it is a legal bar, and every 
 court of law is bound to accept it as such. But 
 it was said, if the jointure was disproportionate 
 this court would relieve on the head of fraud. I 
 have attended very closely to that answer, but 
 am entirely at a loss to find any foundation for 
 it. What measure is the court to make of this 
 disproportion? The husband's estate ? The wife's 
 fortune ? Her family ? Her person ? Her en- 
 dowments ? I am lost in the impossibility of 
 equity's interposing, and frightened with a juris- 
 diction that I should attempt to introduce. 
 
 I have examined all the cases that were cited, 
 and many authorities both in law and equity, and 
 have not been able to find that the courts have 
 bound an infant by any agreement not confirmed 
 after twenty-one. 
 
 27 Car. 2. 2 Cha. Cas. 211. Coker was seised 
 of a church lease in trust for Robert Strickland, an 
 infant. On a treaty of marriage between the in- 
 fant and the plaintiff, and in consideration of 
 £1000 portion, an indenture was made, with the 
 consent of Coker, the infant's guardian, whereby 
 the infant covenanted that the wife's life should 
 be inserted by way of jointure ; but there was no 
 covenant by Coker who sealed the indenture. 
 The book says the marriage took effect, the hus- 
 band (not saying then an infant) dies ; the lease 
 was surrendered, and wife's life put in ; she came 
 for an assignment, and Coker claimed an incura- 
 
( 60 ) 
 
 brance on the lease which the court postponed to 
 the wife : the relief was against Coker's fraud, 
 and no question was made on the infant's cove- 
 nant. And it is to be observed that the case is not 
 in Lord Nottingham's MSS. 
 
 Franklin v. Thornbury, 1 Vern. 132. is a paltry 
 note of the reporter's, where he says, in the same 
 case, " an agreement being void against an infant, 
 yet was decreed ; the infant having received an 
 interest under it after he came of age;" which 
 imports, that otherwise it would not have been 
 
 decreed. 
 
 In Cannel v. Buckle, the principal case is only 
 
 upon the execution of an agreement by a wife of 
 maturity, notwithstanding the subsequent mar- 
 riage, where it was objected as a general rule, that 
 no specific performance could be decreed where 
 no damages could be recovered at law. The 
 court refutes that general rule by this case ; sup- 
 pose a feme infant seised in fee on marriage, with 
 the consent of her guardians, should covenant in 
 consideration of a settlement to convey her inher- 
 itance to her husband. If this were done in con- 
 sideration of a competent settlement, equity would 
 execute the agreement. The state of this case 
 supposes the infant to die in her minority, or be- 
 fore she had confirmed such agreement. This is 
 no adjudged case, and for my own part I very 
 much differ from the supposed decree in this 
 supposed case. 
 
( 61 ) 
 
 Two opinions, indeed, of very eminent judges 
 have been cited upon the binding force of this 
 statute : the one of Lord Hale's, from a marginal 
 note in Co. Lit. ; the other of Lord Hardwicke, 
 from a note taken at the bar. 
 
 As for the marginal note supposed to be Lord 
 Hale's, it is too uncertain for me to make a serious 
 comment upon ; as also is that argument, much 
 built on and laboured, the want of curiosity 
 and oscitancy of conveyancers, who, it is said, 
 when they hear the word jointure are satisfied, 
 and never inquire whether the woman is a minor 
 or not when she is married ; that is, in other 
 words, whether the dower was barred or not ; a 
 point which, unless we have much mispent our 
 time, was certainly worth inquiring about. Be- 
 sides Mr. Attorney General's conveyancers differ 
 from Mr. Wilbraham's, for, according to his ac- 
 count, they never thought about it ; which is 
 natural enough, their time being more dedicated 
 to perusal than thought. 
 
 As to the alleged opinion of Lord Hardwicke, I 
 shall not presume to treat it as his opinion. I 
 concur with him in every reason which was ma- 
 terial for the determination of that cause ; this was 
 not. If it had been, I should have taken the 
 liberty of conversing with him upon it before I 
 pronounced my decree. Considering it, there- 
 fore, as a position in the abstract, I differ from it ; 
 and upon the best information I can get, till the 
 
( 62 ) 
 
 courts of law judicially determine the contrary, I 
 am most clearly of opinion " that a jointure made 
 before marriage on an infant wife may be waved 
 after coverture." 
 
 Having declared my opinion upon the first ques- 
 tion, I have not a great deal to add on the second 
 and third points, which may, and indeed will be 
 reduced to one. But I cannot help taking notice 
 of the particular settlement in question, and lay- 
 ing it down as a principal ground of my deter- 
 mination, that the interest there raised to Lady 
 Drury is destitute of all the substantial qualities 
 required by the statute. First, No legal estate 
 in lands, &c. is conveyed to the lady ; secondly, 
 no equitable lien on any real estate of the husband 
 is created. For though it is said that the annuity 
 is to be in the name of a jointure, it is agreed to 
 vest only on a contingency, and to attach not on 
 Sir Thomas, but contingently on his representa- 
 tives ; and unless there were proof of mistake or 
 fraud, I do not conceive this court could interpose 
 to better the security. 
 
 27 Car. 2. in Gladstone v. Ripley, Lord Not- 
 tingham held, first, that a jointure of a copyhold 
 is no bar of dower at common law. Secondly, 
 that an agreement precedent to marriage to ac- 
 cept it as such, makes it a bar in equity, and 
 therefore he staid the suit at law. 
 
 But as I have in this case been forced to give 
 my opinion that Lady Drury could not, being an 
 
( 63 ) 
 
 infant, have bound herself by the acceptance of 
 a legal estate, I should be inconsistent to say that 
 she has bound herself by the acceptance of this 
 covenant, which is no security at all for the an- 
 nuity intended by Sir Thomas. 
 
 A bill in equity is a very uncomfortable jointure, 
 a very uncertain maintainance, and not a remedy 
 so near at hand as an ejectment. Besides, in the 
 present case, it is to be bought at the price of 
 dower, and her share of the personal estate under 
 the statute of distribution or otherwise. 
 
 Declare, that the defendant, Lady Drury, being, 
 an infant at the time of her executing the indenture 
 of the 5th of October, 1737, was not barred of 
 her dower in the intestate's real estates, nor of her 
 share of his personal estate under the statute of 
 distribution. 
 
 Earl of Buckinghamshire v. Drury. 
 
 This was an appeal from the above decree. 
 After hearing counsel, it was proposed to ask the 
 opinion of the judges upon the point of law, who, 
 differing among themselves, were directed to de- 
 liver their opinions seriatim, with their reasons. 
 Accordingly Mr. Baron Gould, the Lord Chief 
 Baron (Parker), and the Lord Chief Justice of 
 the Common Pleas (Pratt), delivered their opi- 
 nions in support of the decree. Mr. Justice 
 
( 64 ) 
 
 Wilmot, Mr. Justice Bathurst, Mr. Baron Adams, 
 and Mr. Baron Smythe, in opposition. 
 
 The Earl of Hardwicke. — I concur entirely in 
 opinion with the majority of the judges, but I do 
 not think it necessary to resume the arguments 
 at large, but shall only take notice of such of 
 them as lead to the determination of the merits. 
 For their opinion on that point is not conclusive, 
 though it was necessary that they should be taken 
 from the declaration in the decree, because equity 
 follows the law, and to know whether the infant 
 would have been bound by a legal jointure. I 
 shall therefore rely on the opinion of the four 
 judges; but I must observe thus much, that the 
 time which has elapsed since the statute, and the 
 silence and want of resolutions on this head are 
 stronger arguments than a great many cases ; for 
 it shows this point has never till now (and it is 
 235 years since the statute,) been called in ques- 
 tion. 
 
 The practice of marrying young persons of 
 fortune under age was more frequent in those 
 days than in later times, the reason was from the 
 law of tenures and wardships. For if a man 
 died, leaving a son or daughter under age, the 
 lord would be entitled to the marriage, and other- 
 wise to have the valor maritagn : therefore it is 
 clear, a father, as soon as his son or daughter 
 came to a marriageable age, would himself choose 
 a marriage for them. This shows that these 
 
( 65 ) 
 
 marriages and jointures on infants must have 
 been more frequent than in modern times. The 
 lord too was equally forward ; for if the father 
 died, and his child was unmarried, the lord would 
 tender marriage as soon as the child attained the 
 marriageable age, for otherwise he might lose the 
 marriage. 
 
 One thing on this statute was truly laid down, 
 that the retrospective provision is penned in the 
 same manner as that for the future ; and that if 
 the statute did not bind such women as were 
 then married, it did not bar them of dower, and 
 then would not have cured half the mischief, and 
 certainly, from the reason of tenure, above half 
 were married under age at that time. 
 
 Another thing was mentioned by Mr. Justice 
 Wilmot, who began for the affirmative, and en- 
 tered largely into the subject, and explained the 
 nature of jointures very ably, and threw a new 
 light on the cause by entering into the law re- 
 lating to provisions and settlements of this kind, 
 as they stood before and at the making of the 
 statute : he said, that the statute intended to 
 create a bar by jointures then made, or after to 
 be made, without any regard to a contract. 
 
 The chief justice of the Common Pleas puts it 
 upon the foot of a contract ; but the recital of 
 the -statute supposes the contrary, for it recites 
 the instances of settlements of inheritances, and 
 they might be made by ancestors of the husband. 
 
 f 
 
( 66 ) 
 
 Where then is the contract? But the chief jus- 
 tice gave a definition of a jointure, that it was a 
 contract for a provision for the wife after the 
 death of the husband. I say, no book defines it 
 so. Lord Coke and others say, it is a provision 
 of livelihood, but do not take in the word or 
 idea of contract. I was therefore surprised at 
 the positiveness with which this was asserted. 
 
 Let us reflect on the usage in families before 
 this law. In most great families a particular 
 estate was kept in that state, and usually so set- 
 tled from generation to generation. In most 
 great families there is a house that is called the 
 jointure house ; and the case in Dyer proves, 
 that if a father or grandfather settles on his son 
 or grandson, and such woman as he shall marry, 
 it is a good jointure. Where in such case can 
 be the contract? The wife is supposed to rely 
 on that when she marries. 
 
 As to the cases of Seys v. Price, and Harvey 
 v. Ashley, it has been affirmed that they were 
 determined singly, upon the authority of the 1 
 Inst. 37. I believe that book was produced, but 
 as to their proceeding singly upon that dictum, I 
 deny it. Though the passage is very material, 
 and the counsel argued upon the observation, 
 " that a jointure made to her under or above the 
 age of nine years is good," contending, that it 
 meant good to bind both parties. For otherwise, 
 as Lord Coke was so accurate a writer, it is pro- 
 
( (>' ) 
 
 bable that he would have gone on and said, 
 " unless the wife was an infant." Neither was it 
 that authority that determined Sir D. Ryder in 
 the case of Harvey v. Ashley, to give up that 
 point, and admit in words that the infant was 
 bound by it and barred of her dower. 
 
 Another thing was said, that the authorities 
 cited were cobwebs thrown over the statutes. I 
 rather think they are lights upon the statute. 
 One of those lights was what is mentioned by 
 Hale in the margin of the 1st Inst, which was 
 treated with great disregard, [here his lordship 
 pronounced a high encomium on Lord Hale, and 
 said he had always been looked upon as one of 
 the greatest luminaries of the law r ,] and though 
 it was called a private note, his MS. authority 
 had been always highly esteemed ; the original 
 was given by Lord Hale to the brother of Phillips 
 Gybbon, who lent it me when I was young at the 
 bar; and in the original book cases are cited in 
 the margin under Lord Hale's own hand, written 
 in his strongest time, when he was judge of the 
 Common Pleas, before the restoration. Lord 
 Chief Justice Holt, who was as great and able a 
 judge as ever sat in the King's Bench, (except 
 Hale,) when he doubted of points of law, has 
 borrowed manuscripts of Hale's family to decide 
 his opinion. I think, therefore, that things from 
 reverend hands deserve to be treated with re- 
 verence. 
 
 f2 
 
( 68 ) 
 
 The opinion of conveyancers in all times, and 
 their constant course, is of great weight. They 
 are to advise, and if their opinion is not to pre- 
 vail, must every case come to law? No; the 
 received opinion ought to govern. The ablest 
 men in the profession have been conveyancers. 
 Sir Orlando Bridgeman, (a book of whose pre- 
 cedents has been published,) Webb, a great prac- 
 tiser in the King's Bench, was an able convey- 
 ancer, and the present Mr. Filmer. 
 
 In the next place, the judgment and established 
 practice of the Court of Chancery, is I think of 
 the greatest weight. 
 
 From these considerations I take it for granted 
 that the law and foundation of this case is settled, 
 that an infant, having a proper jointure made, is 
 bound and barred by it. 
 
 The next thing is the consideration of equity, 
 whether the jointure, or an equivalent to it, will 
 not bind in a court of equity? To determine 
 this, let us define what is a jointure. The law 
 does not say a contract for, but a competent pro- 
 vision of livelihood. Then the general rule is, 
 equity follows the law in the substance, though 
 not in the mode and circumstances of the case. 
 Therefore, if that has been done which is equiva- 
 lent to what the law would call a jointure or 
 conveyance of any other nature, it will bind in 
 equity. Every certain provision with consent of 
 the wife, parents, or guardian, though not a join- 
 
( 69 ) 
 
 t uic* within the statute :27 Hen. Ylll. is good in 
 equity. This is built on maxims of equity, which 
 regards the substance and not the forms. What 
 for good considerations is agreed to be done, is 
 considered as done, and allowed all the conse- 
 quences and effects as if actually done; espe- 
 cially if the condition of the parties is changed, 
 for that cannot be rescinded ; so what is fairly 
 done before ought to be established. This juris- 
 diction of equity is grown up from necessity from 
 the change of circumstances and times, and to 
 comply with the occasions of families and the 
 exigencies of mankind. 
 
 As property stood at the time of the statute, 
 personal estate was then of little or trifling value ; 
 copyholds had hardly then acquired their full 
 strength, trusts of estates in land did not arise 
 till many years after, (I wonder how they ever 
 happened to do so). But the chief kind of pro- 
 perty then regarded was freehold estate in land, 
 and so the statute applied to that only. But how 
 many species of property have grown up since, 
 by new improvements, commerce, and from the 
 funds. Equity has therefore held, that where 
 such provision has been made before marriage, 
 out of any of these, she shall be bound by it. 
 Consider how many jointures there are now made 
 on women out of the funds, and none of them 
 within the statute 27 Hen. VIII. So multitudes 
 of jointures out of trust estates, not one of them 
 
( <o ) 
 
 within the statute ; yet equity has always sup- 
 ported them. So also of copyhold lands. 
 
 The case of Jordan v. Savage was decreed by 
 Lord King. [Here his lordship gave a great 
 character of him, and remarked, that he had 
 been Chief Justice of Common Bench, in which 
 court only writs of dower can be brought.] And 
 though it has been said she took possession of 
 the lands limited to her for jointure by the arti- 
 cles, I answer that the question was upon the 
 free bench, which extended to the whole land, 
 therefore her entry upon part of the land did 
 not bar her of the rest. 
 
 Vizard v. Longden, in which I was counsel, 
 was also decided by Lord King. That was a 
 bill brought by the brother of the husband, who 
 died intestate, against the widow, for an account 
 of the personal estate, and to be relieved against 
 her claim of dower by reason of an agreement 
 contained in a condition of a bond entered into 
 before marriage. She by her answer said, that 
 her husband agreed to settle on her a clear an- 
 nuity of £14 per annum ; and no particular lands 
 were mentioned (omitting in her answer the 
 words which were in the condition, for her pro- 
 vision and maintenance,) and prayed to have the 
 annuity made good out of the real estate, the 
 personal being deficient, and also to have her 
 dower. The master of the rolls declared in his 
 decree, that there was not any sufficient proof of 
 
( 71 ) 
 
 the averment, that it was in bar of dower, and so 
 decreed the £14 per annum to he made good 
 out of the real estate, and also dower. But Lord 
 King reversed the decree upon consideration, 
 and declared she was only entitled to the £14 
 per annum out of the real estate of her husband, 
 by virtue of the bond, and that the said ,£11 
 per annum was a bar of dower out of the residue. 
 1st. I observe this bond must have been general, 
 without mentioning specific lands, because she 
 claimed on this footing, that the personal estate 
 was insufficient to answer the annuity. 2dly. 
 That the master of the rolls had no doubt but 
 that this g&neral agreement had been a sufficient 
 bar of dower, provided it had been sufficiently 
 expressed or proved that it was so agreed. 
 
 Another case is Davila v. Davila, 2 Vern. 724, 
 before Lord Cowper. Covenant in consideration 
 of the intended marriage and £1000 portion, to 
 pay his wife, if she survived him, £1.500 in a 
 month after his death, in full of dower, thirds 
 by the custom of London, or otherwise, out of 
 his real or personal estate. The husband died 
 intestate, without issue, and the widow brought 
 a bill against the administrator to have a moiety 
 of the personal estate by the Statute of Distribu- 
 tion ; to which this covenant was pleaded by the 
 administrator, and that he was ready to pay the 
 £1500, and Lord Cowper allowed the plea, and 
 said, " that possibly the husband might think it 
 
( 72 ) 
 
 not necessary to make a will, and devise the 
 estate to the next of kin, because he knew his 
 wife was barred by the agreement;" against that 
 decree there was no complaint or appeal. 
 
 I have already alluded to a number of cases of 
 jointures out of the funds ; many must have been 
 on infants. What confusion might not this in- 
 troduce in families, if parties were to be left to 
 their legal rights. These cases were so frequent 
 in courts of equity, that reports, and even notes, 
 ceased to be taken of them. 
 
 But it has been said, the agreement in the 
 present case was originally vicious, by reason of 
 particular defects in it ; that nothing certain is 
 contained, no particular lands specified, and no 
 remedy for the wife to compel the husband in his 
 life. But the cases I have mentioned, and also 
 the case upon Lord Lechmere's marriage articles, 
 where it was only a general covenant, are all 
 answers to the objections. And besides, there 
 are two other answers: 1st. If there had been 
 danger of Sir T. Drury's dissipating, and he had 
 spent this equitable jointure, that would have 
 been an eviction in equity, and consequently 
 would have given her right to dower, like the 
 case of an eviction at law, for equity pursues the 
 reason of the law. 2dly. But he could not have 
 spent it, i. e. not his real estate ; for if any one 
 was about to purchase, he would certainly have 
 asked whether Sir Thomas was married, if his 
 
( 73 ) 
 
 lady was jointured, and when this was produced 
 would have seen a settlement, or insisted on a 
 settlement being made, or that the wife should 
 join in a fine. 
 
 Another objection was, that the covenant is 
 too short ; but the agreement is general, whereas 
 the covenant is, that his heirs, &c after, &c. 
 shall pay ; therefore, that as there is no covenant 
 for himself, there was no remedy to compel him 
 in his lifetime. But I differ from that, for I 
 think, upon the first clause, that she might by 
 her next friend have brought a bill to compel 
 him, because it is a general agreement that she 
 should have the annuity for, and in the name of, 
 her jointure, which are the proper legal words, 
 and the language of pleading. Then has he not 
 covenanted in every circumstance to make a 
 jointure, one property of which is to take effect 
 immediately in possession on the death of the 
 husband, which could not be unless it was settled 
 in the life of the husband ? 
 
 Another objection was, that this was an inade- 
 quate jointure ; a hard bargain. But this is a 
 clear annuity of £600, [here his lordship men- 
 tioned the lady's circumstances.] 
 
 I cannot conclude this head without resorting 
 back to the long established course of the Court 
 of Chancery in the case of infants, who are under 
 the care of that court. Many came before me 
 whilst I sat there in families of the first quality. 
 
( 74 ) 
 
 One I particularly remember, which I would 
 mention, because it includes my great predecessor. 
 The Duke of Hamilton married Miss Spencer, 
 who had £40,000 in money, and a considerable 
 real estate. There was a reference to the master 
 for the duke to make proposals ; the report being- 
 defective, it was sent back, and then it came be- 
 fore me, and I concurred in it. 
 
 But it is objected that the Court of Chancery 
 does no more than the father or guardian, the 
 best it can, but the infant has the same privilege 
 to wave when she comes of age. When this was 
 the only answer given by so able an advocate as 
 the solicitor general,* I conclude it unanswerable ; 
 for this is no answer at all. It is saying no more 
 than that this great court draws in and deludes 
 families. People think, when they resort to that 
 court in respect of infants, that it has a sovereign 
 jurisdiction for what they do. and that trustees 
 and all are indemnified. And what is so done 
 must be in the case of infants. 
 
 It is improper for me to mention my own pre- 
 cedents ; but in this practice I followed a great 
 example, Lord Nottingham, [and here his lord- 
 ship enumerated all the chancellors, including 
 Lord Talbot.] Have they all concurred to draw 
 in and delude families 1 If this should be law, 
 every one of us deserved to have been impeached 
 as being guilty of the greatest abuse and delusion 
 * Sir Fletcher Norton. 
 
( 73. ) 
 
 of families. Such ;i series of practice and prece- 
 dents make the Law. A great part of the com- 
 mon law is so. What, therefore, might not he the 
 consequence of overturning all this established 
 course \ 
 
 Then the inconveniencies of persons claiming 
 under family settlements ; remainder-men may 
 have a third part of their estates torn from them, 
 and the jointure perhaps go to another. Nay, 
 purchasers for valuable considerations may be 
 prejudiced, for they can have no relief if the 
 woman is not bound. And no person of a great 
 estate will be able to marry an infant unless she 
 finds surety to bar herself at twenty-one by a 
 fine. Beauty, virtue, and merit, cannot always 
 find such surety. If this decree should stand, 
 it must stand irretrievably, for I cannot think how 
 any statute could be devised to reform it. There 
 was considerable difficulty in framing the statute 
 of wills. But these cases are so various it would 
 be impossible to imagine all the cases which are 
 fit to be cured, and which are not. 
 
 The second general point is, whether she is 
 barred of her distributary share of the personal 
 estate. This, as to the value, is the material 
 point. 
 
 If any thing can be clear in equity, it is this : 
 if such agreements are fairly entered into, they 
 will be decreed. It is truly objected, that a pro- 
 per statute jointure could not bar this. But yet, 
 
( 76 ) 
 
 if such a jointure had gone on in such words, or 
 to the same effect, as those which have been used 
 in the present case, it would have excluded her. 
 I have seen many such precedents : some con- 
 cerning wives of citizens of London, where the 
 customary right has been allowed to be barred 
 by a jointure, and the wife is said to be com- 
 pounded with. 
 
 2 Vern. 665, Hancock v. Hancock, where a 
 wife of a freeman of London is compounded with 
 before marriage, by having a jointure, though of 
 land, she is taken as. advanced, and the children 
 shall have her moiety as if she was dead, 1 Vern. 
 G, Love's case. If this is allowed in such case 
 of a custom, d, fortiori in personal estate not within 
 the custom ; for in the case of the custom she 
 has a sort of paramount right superior to her 
 husband. 
 
 It is objected, that this arises from agreement; 
 but that an infant cannot agree. But certainly 
 an infant so near of age, wanting only two months, 
 might bind herself as to personal rights. She was 
 capable of devising away all her own personal 
 estate. This is not so strong;. It is not to de- 
 prive her of her own, but to exclude her of the 
 contingency of any part of her husband's per- 
 sonal estate. And here he has in effect said, so 
 far I make my will already, that you shall not 
 have any part of it. 
 
 All these contracts are looked on to be for the 
 
'< ) 
 
 benefit of the husband and his family, that if he 
 
 dies intestate, his children or family, and not his 
 wife, should have his personal estate. See the 
 case of Davila v. Davila, before cited, and Lord 
 Cowper's reasoning at the end of the case; that 
 the husband might think it not necessary to make 
 a will, because he might consider his wife barred 
 by the agreement. 
 
 A contrary construction would be to make this 
 adult infant commit a fraud upon her husband, 
 by claiming in contradiction to the articles. But 
 minors are not allowed to take advantage of 
 infancy to support a fraud. There was a decree 
 by Lord Cowper, (analogous to the case in 2 Leo. 
 108, of Piggot v. Russell,) where tenant in tail 
 applied to borrow money on a mortgage, the at- 
 torney's clerk who ingrossed the deed was the 
 issue in tail, was then about the age of eighteen, 
 and knew of his being issue in tail, but took no 
 notice of it. Lord Cowper relieved against this 
 minor, and would not suffer him to take advan- 
 tage of his own fraud. 
 
 In this case I must take it Sir Thomas Drury 
 relied on this agreement, and therefore made no 
 will, and otherwise that he was drawn in and de- 
 ceived. 
 
 Lord Mansfield. — The general question is, if 
 Lady Drury, having the provision stipulated for 
 her by her marriage articles, is not barred of her 
 dower. I entirely agree with the noble and 
 
( 78 ) 
 
 learned lord who spoke last, that a jointure is not 
 a contract, but a provision made by the husband, 
 &c. as defined by Lord Coke, and, therefore, that 
 the consequence drawn from an infant's incapa- 
 city of contracting is ill-founded. I must also 
 deny what has been advanced in the argument of 
 the present case, that either by the law of Eng- 
 land, or any other law, every contract made by an 
 infant is void. Here his lordship cited the words 
 of the E dictum perpetuum (de Mm. tit. A, J quod 
 cum minore gestum esse dicitur, uti quceqae res erit, 
 animadvertas. 
 
 By our law some agreements bind absolutely, 
 some are void, some are voidable. Contracts for 
 necessaries, such as diet, education, &c. are good, 
 (Bac. on Uses, versus Jinem,) and the infant's body 
 liable to be taken in execution for them. So of 
 a sum advanced for taking an infant out of gaol.. 
 Infancy never authorises fraud; as if goods were 
 delivered to an infant, and he embezzle them, 
 trover would lie against him ; or if he took an 
 estate, and was to pay rent for it, he should not 
 hold the estate, and defend himself against pay- 
 ment of the rent, by pretence of infancy. If an 
 infant pays money with his own hand, without a 
 valuable consideration for it, he cannot get it back 
 again. If he receives rents, he cannot demand 
 them again when of age. In Watts v. Haiswell 
 and Treswick, where the issue in tail being 
 eighteen years old, himself ingrossed the mort- 
 
( 79 ) 
 
 gage deed made by his father, and did not dis- 
 cover his right to the mortgage, Lord Cowper 
 held him bound thereby, because, being of years 
 of discretion, he had acted dishonestly in not 
 discovering his title, and expressed his assent to 
 the rule that had been laid down, of infants de- 
 riving their protection from those they contracted 
 with, i. e. from the nature of the contract, if fair 
 or otherwise. 
 
 Were infants not bound by such agreements as 
 this, no lady could marry under age without her 
 father or some near friends becoming security 
 that she would when of full age join in a fine to 
 bar herself of dower, which, if she should after- 
 wards refuse to do, the husband must have his 
 remedy for a collateral satisfaction against the heir 
 of her father, or such next friend, which would 
 make wild work. I approve the distinction taken 
 by Mr. Justice Wilmot between infants contract- 
 ing for conveying away something of their own, 
 and where for barring themselves of a right which 
 is a third person's. 
 
 Consider the agreement in this case, and what 
 the circumstances of it are. It is an agreement 
 for the infant's advancement. Marriage is so. 
 What sort of a marriage ? With the consent of 
 her father or guardian. Lady Drury was then 
 nearly twenty-one : there is no objection to the 
 fairness of the transaction. She had only £2000 
 
( 80 ) 
 
 for her fortune ; it was an advantageous bargain 
 for her at the time, 
 
 Better terms may be obtained for infants by 
 parents and guardians than when they are of full 
 age : by much the greatest number of women are 
 married when under age ; but they are not thereby 
 to be made an instrument to defraud others, for 
 there is no difference in effect whether the fraud 
 be premeditated, or the circumstances by subse- 
 quent events be turned into fraud. If the statute 
 of Henry VIII. had never been made, courts of 
 equity would have given relief; but I am clearly 
 of opinion that infants are barred under that 
 statute. That act was made for uses, not for 
 jointures : this is a provision arising out of the 
 general consequences of uses. 
 
 Consider also the usage and transactions of 
 mankind upon it : the object of all laws, with 
 regard to real property, is quiet and repose. As 
 to practice, there has almost been only one opinion. 
 The greatest conveyancers ; the whole profession 
 of the law ; Sir Orlando Bridgeman, Lord Not- 
 tingham : there was not a doubt at the bar in 
 Hervey v. Ashley : Mr. Fazakerley always took 
 it for granted that infants were bound. 
 
 If this decree were to stand, marriage settle- 
 ments would be totally subverted without the 
 interposition of the legislature ; and I concur 
 with the noble and learned lord, that no man 
 
( 81 ) 
 
 living could draw such an act of parliament. I 
 will never put such an exposition on the law as 
 to make it necessary to apply to Parliament to 
 rectify it. 
 
 Decree reversed. 
 
 T H E E N U. 
 
 g 
 

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