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CHAP. CLXVIII.

1780-1792.

Aug. 28. 1780.

Letter giving an account of

circuit.

vilifying and degrading courts of justice if they were to hear, by means of a wager, a discussion of prohibited games." Lord Loughborough. "This was a mere idle wager; and I have no hesitation in saying that I think a court or a jury ought not to be called upon to decide such wagers. I adhere to the opinion which I expressed at the trial.” Rule discharged.

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Lord Loughborough, while a common law judge, went the circuit every summer, although the Chiefs of the King's Bench and Common Pleas were excused this duty in the spring, one Judge only being sent on the Norfolk and one on the Midland circuit.

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Of his first judicial tour we have the following account in a letter from himself to a lady, which perhaps will not much add to his reputation for pleasantry :

"Lancaster, 28th August, 1780.

"I am supposed by the newswriters to be trying folks in the north for their lives and liberties, and hanging and whipping in a very shocking way. Nothing like it, I assure you. From Durham to Lancaster, I have not missed an assembly; and the hanghis оссираtions on the ing sleeves of the misses, whose grandmothers I used to admire, are the only things I have seen that give me the least idea of hanging. On this western coast, where in former days the misses never appeared, and there was no fiddling nor dancing, I feel much younger than at Durham and Newcastle, and accordingly I have been twice detected in the city of Carlisle coming out of a house kept by a fine young woman, at broad daylight, after supper. It was not quite known that the Judge had a wife; and the old lady who lodges us at Carlisle, and who is blind, very gravely lamented to me that I could not marry all the young ladies of the family."

Brown v. Leeson, 2 Hen. Black. 43. So Lord Mansfield refused to try a wager on the sex of the Chevalier D'Eon, Cowp. 729.; and Lord Ellenborough refused to try a wager upon a cock-fight, 3 Campb. 140., or on a dog-fight, 1 Russ. and Moody, 213. But an action has been held to be maintainable on a wager of "a rump and dozen, whether the defendant be older than the plaintiff?” We ought long ago to have adopted the provision of the civil law, whereby sponsiones ludicræ" could not be enforced in a court of justice. I have in vain tried to induce the legislature to agree to this, and to change the absurd custom where an issue of fact is directed by a court of equity, of stating it to the jury in the form of a wager of a sum of money between the parties.

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CHAP.

CLAVIII.

nistration

From a speech which he made in the House of Lords, he might have been expected to be found very severe in dealing with criminals, so as to be placed in the category of "hang- 1780-1792 ing judges." "I have always held it," said he, "to be more His admihumane, as well for the example of others as for the enforce- of criminal ment of the object and intention of the Legislature, where the guilt is evident and glaring, rather to let the law take its course, than by a mistaken lenity to multiply offenders, and accumulate sacrifices at the shrine of what is falsely considered the sanguinary spirit of our criminal laws." * Yet he is said in practice to have been very mild in the trial of prisoners,— giving them a fair chance of being acquitted,— and not hurt (as judges are apt to be) if the sentence was mitigated by the Crown, after he had reported that there was no room for the exercise of mercy. † He is advantageously contrasted with Mr. Justice Gould, in an anecdote told in the House of Commons, for the purpose of illustrating the evil of discretionary punishments: "Not a great many years ago, on the Norfolk circuit, a larceny was committed by two men in a poultry-yard, but only one of them was apprehended; the other, having escaped to a distant part of the country, had eluded the pursuit. At the next Assizes the apprehended thief was tried and convicted; but Lord Loughborough, before whom he was tried, thinking the offence a very slight one, sentenced him only to a few months' imprisonment. The news of this sentence having reached the accomplice in his retreat, he immediately returned and surrendered himself to take his trial at the next Assizes. The next Assizes came, but unfortunately for the prisoner, it was a different Judge who presided, and, still more unfortunately, Mr. Justice Gould, who happened to be the Judge, though of a very mild and indulgent disposition, had observed, or

* A. D. 1789; 27 Parl. Hist. 1066.

He said in the House of Lords, "I recollect a case where four prisoners had been capitally convicted before me, and I had not on a most careful revision of the trial discovered to my own mind any difference in their cases which could warrant me in reporting favourably of any one of them; yet I am happy to think that the Royal mercy was extended to one of them-on the consideration that one might be saved without injury to the effect of the law."

CHAP.

CLXVIII.

thought he had observed, that men who set out with stealing fowls generally end by committing the most atrocious crimes. 1780-1792. Building a sort of system on this observation, he had made it a rule to punish this offence with peculiar severity; and he accordingly, to the astonishment of this unhappy man, sentenced him to be transported to Botany Bay.* While the accomplice was taking his departure for this remote region, without hope of ever again seeing his native country, the term of the principal's imprisonment had expired; and what must have been the notions which that little public who witnessed and compared these two examples formed of our system of criminal justice!"

Lord Loughborough, when presiding at the Assizes, was ready to exercise his authority with much rigor when the occasion seemed to require it. He threatened a jury who persisted in finding a verdict contrary to his direction with an "attaint;" he committed to prison a juryman who had got drunk, and he laid a fine of 5007. upon the inhabitants of Essex for the insufficiency of the county gaol.†-Still, even on the bench, although his decisions were according to law, he kept up his character as a courtier. The following anecdote, which I have on undoubted authority, illustrates the foolish excess of his insincerity. "At Durham the Chapter was wont to be a very opulent and hospitable body - not too much distinguished by qualities of a higher order than those which might befit a cœnobium of Protestant Benedictines. It happened that at an Assize at Durham, at which Lord Loughborough presided in the Crown Court, the criminal

Buller was said always to hang for sheep-stealing, avowing as a reason that he had several sheep stolen from his own flock. Heath, acting more on principle, used to hang in all capital cases, because he knew of no good secondary punishments. Said he, "If you imprison at home, the criminal is soon thrown upon you again, hardened in guilt. If you transport, you corrupt infant societies, and sow the seeds of atrocious crimes over the habitable globe. There is no regenerating of felons in this life, and for their own sake as well as for the sake of society, I think it is better to hang."-When sitting in the Crown Court at Gloucester, he asked a lying witness from what part of the county he came, and being answered, "From Bitton, my Lord," he exclaimed, "You do seem to be of the Bitton breed, but I thought I had hanged the whole of that parish long ago."

I knew a judge who repeatedly threatened to fine sheriffs for not supplying the judges with a sufficiently handsome coach at the assizes.

CLXVIII.

calendar was unusually light, and the noble and learned CHAP. Chief Justice, in his charge to the Grand Jury, congratulated them on a result which he could not but attribute to the 1780-1792. county being blessed with the residence within it of such a body of men as the truly reverend chapter of Durham."*

Lough. borough

as a Justice

of Peace, and Chair

man of

Quarter

Sessions.

Before I conclude his judicial career, prior to his holding Lord the Great Seal, I ought to mention that he had a great and unlucky ambition to shine at Quarter Sessions. In right of his wife he was possessed of an estate in Yorkshire. Here he loved to reside in the vacation, and to act the country gentleman. Being in the commission of the peace virtute officii, he took out his dedimus, imprisoned poachers, and made orders of bastardy. Not contented with the glory to be acquired at Petty Sessions, he got himself elected chairman of the Quarter Sessions, and there he tried appeals respecting poor rates and orders of removal. On these occasions, it is said, he was almost always wrong, and the Court of King's Bench had great delight in upsetting his decisions. He seems, however, himself to have had a high opinion of his capacity for "justice-business." Thus he writes to Lord Auckland: "Your letter found me in Yorkshire, employed very eagerly May 9. in a manner you would very little expect; I was attending the Quarter Sessions at Pomfret, having not only become. a country squire, but an active Justice of Peace. If I could conveniently indulge my present disposition, I should never see the inside of any Court but a Quarter Session, and be very well contented to be releguè beyond the Trent."

But we must now behold him in a sphere much more congenial to his talents and acquirements. On the 19th day of January, 1780, he took his seat in the Upper House of Parliament.†

Lord Haddington declared that Lord Loughborough never seemed to him to be in the position he liked as Chief Justice, and that he never concealed his desire and hope of being Chancellor, often saying that "it was as an equity judge he thought he should best succeed, as he valued greatly for that department the general principles of jurisprudence which he had acquired in early life from the civil law."

†19 June, 1780.- Alexander Wedderburn, Esq., Lord Chief Justice of

1791.

CHAP. CLXVIII.

A. D. 1780.

Great surprise and disappointment were caused by the line which he at first took there. It was supposed that he had been made a peer expressly for the purpose of strenuously Inactivity supporting the falling Government against the attacks of Lord Shelburne, Lord Rockingham, and Lord Camden. His assistance was much wanted, for although, upon a division, there was still a large majority of peers for subjugating during the America, and for lauding all the blunders of Ministers,-they

of Lord Lough

borough in

the House

of Lords

remainder

of Lord North's

Administration.

were awfully weak in debate, having nothing better to rely upon, after the uncertain advocacy of Thurlow, than such drowsy commonplace speakers as Lord Stormont and Lord Hillsborough. Wedderburn in the House of Commons had shone in the very first rank of orators. For the last two years he had borne the whole brunt of the Opposition, and had proved that with a better cause he would have been a match for Dunning, Burke, or Fox. Become Lord Loughborough, and transferred to the House of Peers, it was thought that as a debater he would be equally active, and apparently more brilliant, like the moon among the lesser lights.

Although he attended regularly in his place, and voted with the Government, he long cautiously abstained from opening his mouth on any subject connected with party politics, and he witnessed the fall of Lord North without making an effort to save him. He plausibly pleaded the sacredness of the judicial character which he had now to support, and declared that he would never sully his ermine by engaging in Parliamentary strife. Those who knew him well, suspected him to be actuated by the consideration that he had nothing more to expect from the present Administration, Thurlow firmly holding the Great Seal,-and they

the Court of Common Pleas, being by letters bearing date, &c., created Lord Loughborough of Loughborough, in the county of Leicester, was (in his robes) introduced between Lord Willoughby de Broke and the Lord Grantham (also in their robes), the Gentleman Usher of the Black Rod and Garter King at Arms preceding. His Lordship on his knee presented his patent to the Lord Chancellor on the Woolsack, who delivered it to the clerk, and the same was read at the table: his writ of summons was also read. Then his Lordship took the oaths, &c., and was afterwards placed on the lower end of the Barons' Bench."- Lords' Journals.

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