Justice of the King's Bench, died Wednesday, February the 24th last past, and I was created Chief Justice in his place by writ bearing teste March 2, and was sworn into the office March 2 following, before Sir Joseph Jekyll, Knight, Master of the Rolls, and Sir Jeffrey Gilbert, Knight, one of the Barons of the Exchequer, then two of the Lords Coramissioners for the custody of the Great Seal; notwithstanding which, I continued one of the Commissioners of the Great Seal, and Sergeant Reynolds was sworn in before me and the other Lords Commissioners. to be my successor as a Puisne Judge."

He continued to preside in the Court of King's Bench, with high distinction, above seven years; and, as a testimony of respect for his services, he was raised to the peerage by the title of Lord Raymond, Baron Raymond of Abbots Langley in the county of Hertford, being the third Chief Justice of the King's Bench who had received a similar honor.'

We know from contemporary testimony that he was much admired and respected as head of the Common Law; but we have now very slender means of estimating his merits. Although he continued the Reporter of the Court of King's Bench, and he has handed down to us many of his own decisions, he does by no means the same justice to himself which he had done to Lord Holt. This Chief would have been immortalized by his judgment in the Aylesbury Case on parliamentary privilege, and in Coggs v. Bernard on the doctrine of bailments, as Lord Raymond has given them to the world—but, from Lord Raymond, 1381.

' Coke, Hale, and many others, are still called Lords; but Jeffreys and Parker were the only preceding Chief Justices who had been ennobled, and doubts had been entertained whether a peer could sit as a common law judge. 1730(1). Jan. 21. Then Sir Robert Raymond, Kt., Ld. Ch. J. of His Majesty's Court of King's Bench, being, by letters patent, dated 15 die Januarii, 1730, Annoq. regni Georgii Secundi Regis Quarto, created Lord Raymond, Baron of Abbots Langley, in the county of Hertford, was in his robes, introduced, between the Lord De Lawarr and the Lord Bingley, also in their robes; the Gentleman Usher of the Black Rod, Garter King of Arms, the Deputy Earl Marshall of England, and the Lord Great Chamberlain, preceding. His Lordship presented his patent to the Lord Chancellor, on his knee, at the woolsack; who delivered it to the clerk; and the same was read at the table. His Lordship's writ of summons was also read," &c. He then took the oaths, and was "placed on the lower end of the Baron's Bench."-23 Lords' Journals, 591, 592.

modesty, or from want of leisure, or from carelessness, during the time when he himself presided, he hardly ever mentions the Chief Justice separately, and generally introduces the determination of the case with the words "per Curiam," or "the Court thought," or "we were all agreed." Nor do the cases at that period seem to have been numerous or important; and, to fill up time, and to appear to have an air of business, the most was made of every matter which came in for adjudication. Thus the question "whether nil debet was a good plea to an action of debt on a deed to recover a penalty for breach of covenant?" was solemnly argued four different times, in four successive terms, before the Court would hold the plea to be bad.'

But I can give specimens of Lord Chief Justice Raymond's performances which do him credit. He it was who first established the important doctrine that to publish an obscene libel is a temporal offense, subjecting the party to be prosecuted and punished as for a misdemeanor. The infamous Edmund Curl, held up to eternal detestation and ridicule by Pope in the DUNCIAD, was charged by a criminal information in the language then used-" Quod ille existens homo iniquus et sceleratus ac nequiter machinans et intendens bonos mores subditorum hujus regni corrumpere, et eos ad nequitiam. inducere, quendam turpem et obscænum libellum, intitulatum Venus in the Cloister, or the Nun in her Smock,' impie et nequiter impressit et publicavit ac imprimi et publicari causavit [setting out the several lewd passages in English] in malum exemplum," &c. Having been tried and found guilty by the jury, his counsel moved in arrest of judgment on the ground that, however he might have been punishable in the Ecclesiastical Court for an offense contra bonos mores, this was not an offense of which the common law could take cognizance; arguing that "notwithstanding the filthy run of obscene publications in the reign of Charles II., there had been no prosecution for any of them in the temporal courts, and that whatever tends to corrupt the morals of the people ought to be censured only as an offense against

I Warren v. Cousett, Tr. Term, 13 Geo. I. ; 2 St. Tr. 778.

religion by my Lords the Bishops." Of this opinion was Mr. Justice Fortescue, who said,—

66

I own this is a great offense, but I know of no law by which we can punish it. Common law is common usage, and where there is no law there can be no transgression. At common law, drunkenness and cursing and swearing were not punishable. This is but a general solicitation of chastity; and to make it indictable, there should be a breach of the peace."

Lord Raymond, C. J.: "I am of opinion that to publish any writing which reflects on religion, virtue, or morality, is an act which tends to disturb the civil order of society, and is a temporal offense. It is not merely a sin, but a crime; it is directly hurtful to others, as well as contrary to the soul's health of the offender. Why is this court called the censor morum if we cannot punish that which subverts all morality? For verbal scandal there may be a suit in the spiritual court, and penance may be inflicted; but for the injury done to the public by an obscene libel, this is the proper tribunal."

The matter stood over till another term, when, Mr. Justice Page having succeeded Mr. Justice Fortescue, the Judges were unanimous in discharging the rule to arrest the judgment, and the defendant was set in the pillory, "as," says the reporter, "he well deserved.""

It was in Lord Raymond's time that the law of murder and manslaughter was brought to the degree of precision in which we now find it, with all its nice distinctions and refined qualifications. The practice then prevailed of the jury finding the facts by a special verdict, and leaving the guilt or innocence, or the degree of guilt, of the prisoner as a question of law to the judges.

One of the most interesting cases of this kind was the trial of Major Oneby for the murder of Mr. Gower. These two gentlemen, noted for their fashion and gallantries, had a dispute while playing at hazard in a tavern in Drury Lane, and the prisoner called the deceased "an impertinent puppy;" the deceased answered, "whoever calls me so is a rascal." The prisoner then threw a bottle at the head of the deceased, which brushed his peruke as it passed, and beat some hair-powder from it.

1 2 Str. 788; 17 St. Tr. 153.

Thereupon the deceased tossed a candle at the prisoner without hitting him. They both drew their swords, but were prevented by the company from fighting, and again sat down to play. At the expiration of an hour the deceased said to the prisoner, "We have had hot words; you were the aggressor, but I think we may pass it over," and at the same time offered him his hand;to which the prisoner answered, “No, damn you! I will have your blood." The reckoning being paid, the company had all left the room except the prisoner, who addressing the deceased, said, "Young man, come back. I have something to say to you." The deceased returned. Immediately the door was closed, and the clashing of swords was heard. When the company reentered they found that the deceased had been run through the body by the prisoner, and next day he died of his wounds. The prisoner had received three slight wounds in the rencounter. The deceased on his death-bed being asked "whether he received his wound in a manner called fair among swordsmen?" answered “I think I did." The jury found that, "from the throwing of the bottle till the mortal thrust was given, there had been no reconciliation between the parties;-but whether this was murder or manslaughter, they prayed the advice of the Court." The counsel was about two years in drawing up the special verdict which stated. these facts; and the prosecutor took no steps to bring the case to a hearing, seeming rather inclined to let the proceedings drop. But the prisoner, who had been living all the time gaily in Newgate, grew very confident, and feed counsel to move the Court to fix a day for proclaiming his innocence. The special verdict was twice argued; first before the four Judges of the King's Bench, and then before all the twelve Judges of England.

Sergeant Eyre and Mr. Lee (afterwards Chief Justice), counsel for the prisoner, argued that this was a case of manslaughter, for which the punishment was merely burning in the hand; contending that "there was here no malice aforethought, which was necessary to murder; the killing was on a sudden occasion; manslaughter is killing without premeditation; ira furor brevis est;

and therefore, as a madman, the party is excused for what he does in a transport of passion: the calling the prisoner a rascal was what no man of honor could put up with, and this was the beginning of the quarrel; the fighting was as sudden as the reproachful words; words. alone would not reduce the offense to manslaughter, and if the prisoner had at once stabbed the deceased it might have been murder; but the was an interchange of blows, and the deceased himself allowed that it was a fair fight; there was an interval, but no reconciliation, and the law has fixed no certain time when the presumption arises that the passions of men are cooled: besides, no one saw the beginning of the actual affray; the deceased certainly struck several blows, and might have first struck and wounded the prisoner before the latter even drew his sword the second time: the law under such circumstances would mercifully presume provocation, which would reduce the case to manslaughter.'

Lord Raymond, in a very long and most admirable judgment, pronounced the unanimous opinion of all the Judges that the prisoner was guilty of murder. After showing that the malice necessary to constitute murder was not a settled danger or long cherished revenge, but unprovoked deadly violence without provocation or excuse, he observed,—

"Mr. Gower did nothing that could reasonably raise a passion in Major Oneby. The answer of Mr. Gower, on being called an impertinent puppy, was not more than might have been expected, that whosoever called him so was a rascal.' Major Oneby, who had begun the abusive language, then violently threw the glass bottle. After they had been restrained from fighting, and had sat an hour at play, the proposal of Mr. Gower ought to have appeased Major Oneby; but what was his answer? 'No, damn you, I will have your blood!' These words show his malicious intent even in throwing the bottle. Then followed the imperious and insolent command, 'Young man, I have something to say to you!' As soon as Mr. Gower had returned, the door is shut, and a clashing of swords is heard, when Mr: Gower received the mortal wound of which he died. If the prisoner had malice against the deceased, though they fought after