to his indictment, and put himself upon his trial, and it appeareth to the Court upon his trial that he is mad, the judge in discretion may discharge the jury, and remit him to jail, to be tried after the recovery of his understanding.' Wright, J.: "I admit that the discharging of the jury in the present case was an instance of great indulgence to the prisoners; but I think it is safer to adhere to a general rule, than on any account to estab lish a power in judges which has been grossly abused and may be again. The policy of the law of England, and, indeed, the true principles of all government, will rather suffer many private inconveniences than introduce one public mischief. I consider the trial by the same jury which is sworn and charged with the prisoner as part of the jus publicum, as a sacred depositum committed to the judges which they ought to deliver down inviolate to posterity."

The usual sentence in the case of high treason was accordingly passed upon the prisoners, but the difference of opinion in the Court saved their lives, and they were pardoned on condition of being sent abroad.'

The last trial under the special commission was that of Sir John Wedderburn. The government had resolved. to make an example of a non-combatant, and indicted him for high treason, although he had not mounted the white cockade, and he never carried any arms but a small sword then worn by every private gentleman. But it was proved that he had accepted the appointment, under the Pretender, of collector of excise, and that accordingly he did collect the excise in several places where the rebel army lay. His counsel objected that this evidence did not support the indictment; but Lord Chief Justice Lee declared the opinion of all the Judges, that collecting money for rebels is an overt act of high treason. The prisoner was convicted, and executed as a traitor on Kennington Common.'

When the rebel peers were tried before the House of Lords, Chief Justice Lee and the other Judges attended

118 St. Tr. 395-416.

? Ibid. 425.

When a boy I knew his son, who was called Sir John Wedderburn, although the baronetcy had been forfeited by the attainder. He too had been "out in the '45," and he told very marvelous stories of his adventures.

as assessors, but only one point of law was referred to them," whether the dates given to the overt acts of treason in the indictment were material?-and Lee, as the organ of his brethren, explained to the astonished Scotch this mystery of the English procedure, that "time and place must be laid in the indictment with certainty, but that evidence may be admitted to prove the offense to have been committed at any other time or any other place within the same county.'

Lord Chief Justice Lee, notwithstanding his defective elocution and very limited acquirements, got on pretty well in the discharge of the duties of his high office, till he broke down in the trial of a prosecution for libel ordered by the House of Commons; after which he lost all authority, and experienced constant mortification. William Owen, a bookseller, having published a pamphlet which severely and justly censured the conduct of the House of Commons in committing to Newgate the Honorable Alexander Murray because he refused to fall down on his knees before them, an address to the Crown was carried, with a foolish unanimity, that the Attorney General should be directed to prosecute the publisher. Sir Dudley Ryder accordingly filed a criminal information against Owen, and, at the trial, insisted that he was entitled to a verdict of guilty on merely proving that a copy of the pamphlet had been sold by the defendant. But he was encountered by Pratt (son of the Chief, and afterwards Lord Camden), who strenuously insisted that as, in an indictment for an 'assault with intent to ravish, the intention must be proved, or there must be an acquittal, so here the jury must consider whether the intention of the writer was to defame the representatives of the people, or, by exposing and correcting their errors, to render them more respectable and useful?

The Chief Justice was much shocked by this doctrine, but he had not the art which enabled Lord Raymond to combat it successfully, and which was afterwards exhibited more strikingly by Lord Mansfield against the publishers of JUNIUS. In summing up, without attempting to take off the effect of the popular arguments 18 St. Tr. 442-858.

urged for the defendant, he drily said, "The publication of the pamphlet being thus proved, and, indeed, not being denied by the defendant, I am of opinion that you are bound to find him guilty. I have ever supported the principles of liberty established at the Revolution, but I must keep juries to questions of fact.' Whether the pamphlet be a libel, is matter of law; if it be not, the defendant might have demurred to the information, or may, after your verdict of guilty, move an arrest of judgment or bring a writ of error." The jury withdrew, and when they returned, after having been absent two hours, the following scene was enacted :—

Clerk of the Court: "Gentlemen of the jury, are you agreed on your verdict? Is the defendant guilty or not guilty?" Foreman: "GUILTY!" Chief Justice: "You could not do otherwise." Jurymen: “No! no! my Lord! it is all a mistake,—we say NOT GUILTY." Foreman: "Yes, my Lord, it was a mistake; I meant to say NOT GUILTY." Bystanders: Bystanders: "Huzza! Huzza!! Huzza!!!" Attorney General: "My Lord, this must not be; I insist on the jury being called back and asked their opinion upon the only question submitted to them." Chief Justice: "Gentlemen of the jury, do you think the evidence laid before you of Owen's publishing the book by selling it is not sufficient to convince you that the said Owen did sell this book?" Foreman: "NOT GUILTY! my Lord, NOT GUILTY!" Furyman: "Yes, my Lord, that is our verdict, and so we say all.” The rest of the Fury: 'So we say all, so we say all.”

There was a prodigious shout of applause in Guildhall, and at night there were bonfires in the streets to celebrate the triumph over an unpopular House of Com

mons.

A degree of ridicule was now attached to Lee's name, and he found his position very uncomfortable; for not only would juries often find verdicts contrary to his direction, but the bar paid little deference to him, and even his puisnies were too apt to show that they considered themselves his betters.

I am surprised he did not inform them that "he came in with King William, and therefore had always been a good Whig."

18 St. Tr. 1203; post, Life of Sir Dudley Ryder.

Some legal chroniclers, not familiar with official usages, have said that under these circumstances, like his predecessors in the reigns of Charles I. and James I., he meant to quit law for politics, and that he accepted the office of Chancellor of the Exchequer. This fact is literally true. The seals of Chancellor of the Exchequer were indeed handed over to him on the 3d of March, 1754, and they remained in his possession till within a few days of his death. He was appointed, however, only under the immemorial custom that when the office of Chancellor of the Exchequer suddenly becomes vacant, and a difficulty arises about effectively filling it. up, it is nominally held ad interim by the Chief Justice of the King's Bench for the time being, who does the formal acts necessary for the progress of business in the Exchequer. On the sudden death of Mr. Pelham, Lord Chief Justice Lee held the seals of Chancellor of the Exchequer till the nomination of Mr. Legge; but in this capacity he never did anything more than sign his name or seal a writ, and the Duke of Newcastle had as little thought of introducing him into the new Cabinet as of making him Archbishop of Canterbury.'

The time was at hand when Lee was to be freed from the irksomeness of his position by being transferred to a better world. His health and spirits having been some time declining, on the evening of Wednesday, the 3rd of April, 1754, he was struck with apoplexy, and, early in the morning of Monday, the 8th of the same month, he expired, in the sixty-sixth year of his age, and the seventeenth of his Chief Justiceship. He was buried at Hartwell, where a handsome monument has been erected to his memory.

There have been recently given to the world very copious extracts from a sort of diary that he kept, under the title of "Miscellanea," and from entries made by him in a succession of almanacs which he carefully preserved; but these are perused with much disap

1 One learned author has even suggested that the fact of Lee "filling the office of Chancellor of the Exchequer as well as of Chief Justice might have been the reason of his remaining a Commoner;"-as if he had been in the habit of opening the Budget in the House of Commons. (Harris's Life of Lord Hardwicke, iii. 517.)

Law Magazine, xxxviii. 217, xxxix. 62.

pointment. They might have contained some lively sketches of his own adventures, and some amusing anecdotes of his contemporaries, although we could not have expected in them much profundity of thought or brilliancy of fancy; but they consist chiefly of legal antiquities with which almost every one is quite familiar, and of dull observations on dull books which he had read.' He seems to have been a believer in the old theory of medicine founded on radical heat and radical moisture, and to have paid great attention to the directions of almanac-makers respecting diet and blood-letting. Thus he says, under date "October, 1737.-Dr. Cheney told me that the Bath waters were the best remedy he knew for the stomach, or for vapors arising from too great coldness of blood; and wherever there was not sufficient calidum naturale, he knew no outward help equal to them. He laid down the rule that to hot blood cooling waters should be applied." His almanac was "Rider's British Merlin, adorned with many delightful and useful verities, fitting all capacities in the islands of Great Britain's monarchy; with notes of husbandry, &c. Compiled, for his country's benefit, by Cardanus Rider." The following very wholesome precepts of this sage were particularly valued by the Chief Justice:-"It's hurtful to fast long. Use meats that are moderately hot; for the best physic is warm diet, warm clothes, and a merry, honest_wife. Consult with your tailors as well as physicians. Let a warm fire, and a cup of generous wine or good October beer, be thy bath; the kitchen thy apothecary's shop; hot meats, and broth, thy physic; and a well-spread table the proof of thy charity to thy poor neighbor."

Notwithstanding all these precautions, he was very nearly cut off when attending the Old Bailey sessions, in May, 1750. The jail fever then raged in Newgate, as in

1 There are some historical notices likewise, showing that my Lord Chief Justice was very little acquainted with events which had happened before his own birth and the coming in of King William: e. g., "It appears by tne letters of D'Estrade that Lord Clarendon advised the sale of Dunkirk, and that Lord Clarendon was also extremely averse to the Presbyterians, who by that history appear to have behaved very well, and to have been for the Restoration." He thinks it was unknown, before the publication of these letters, that Lord Clarendon had anything to do with the sale of Dun kirk, or behaved with ingratitude and bad faith to the Presbyteriaus.