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SKETCHES OF EMINENT ENGLISH JUDGES.
ONE of the most brilliant, if not the worthiest, of
the great men who came down from Scotland to London, and carried away the prizes of law and politics, was Alexander Wedderburn, Lord Loughborough and Earl of Rosslyn. He was born in 1733, and was liberally educated. He gave early indications of those remarkable powers which afterward rendered him famous. At an early age he was a favorite companion of such men as Hume and Robertson. The former gave him a letter of introduction to Dr. Clepham, of London, in which he wrote: "But I will say no more of him, lest my letter fall into the same fault which may be remarked in his behavior and conduct in life; the only fault which has been remarked in them, that of promising so much that it will be difficult for him to support it. You will allow that he must have been guilty of some error of this kind, when I tell you that the man with whose friendship and company I have thought myself very much favored, and whom I commend to you as a friend and companion, is just twenty." The young man was brought up to the bar and in the Presbyterian church, and soon distinguished himself in both by his vigor, originality, and independence. In the church, of which he was an elder, he made himself quite obnoxious by his defense of Hume against an attack leveled at his infidel writings, but his advocacy was so potent that his recommendation to "drop the overture anent Mr. David Hume, because it would not in their judgment minister to their edification," was adopted. Shortly afterward, the Reverend John Home having written the tragedy of Douglas, and several of the clergy having been seduced into witnessing its representation on the stage, the question was put in assembly, "whether there should be an overture anent the stage." Wedderburn made a strong speech in the negative, but was defeated. At the bar he fell into a quarrel with the lord president, and being ordered to make a humiliating apology, refused, and threw off his gown. On account of these incidents Scotland soon became too hot for Sandy, and he came up to London. With his gown he endeavored to get rid of his native accent, and took lessons in elocution of the elder Sheridan. In this, according to "Bozzy," he was successful, for he says: "Though it was late in life for a Caledonian to acquire the genuine English cadence, yet so successful were his instructors and his own unabating endeavors, that he got rid of the coarse part of his Scotch accent, retaining only as much of the native wood-note wild as to mark his country, which," adds Bozzy piously, "if any Scotchman should affect to forget, I should heartily despise him!" And again he says: 66 'When I look back on this noble person at Edinburgh, in situations so unwor
thy of his brilliant powers, and behold Lord Loughborough at London, the change seems almost like one of the metamorphoses in Ovid,”—a comparison more appropriate to his lordship's political than to his personal transformations.
At his outset at the English bar he meditated an unprecedented coup d'état. Having obtained his silk gown and the rank of king's counsel, he joined the northern circuit. This was against the etiquette of the bar, which restrains a barrister from changing his circuit except while "clothed in stuff," because otherwise he might step immediately into a great business, and advance himself over the heads of others long established on the circuit. To add to the enormity, he employed the clerk of Sir Fletcher Norton, the leader of the circuit who had just retired, and thus he hoped to command the late leader's enormous patronage. The attempt failed, and he relinquished it in the course of a year or two, and devoted himself to chancery and the House of Lords.
His great forte at the common-law bar seems to have been the statement of facts and dealing with them. His powers of examination were limited, and so was his store of law. But in chancery and the House of Lords he flourished. In the latter he gained great distinction in the Douglas cause, in which Fox pronounced his speech the very best he ever heard on any subject. When solicitor-general, he defended Clive before the House of Commons against the charge of mal-administration in India, "with extraordinary force of argument and language," says Macaulay. That essayist also remarks: "It is a curious circumstance that, some years later, Thurlow,"-now among Clive's assailants—“was the most conspicuous champion of Warren Hastings, while Wedderburn was among the most unrelenting persecutors of that great, though not faultless, statesman." Macaulay elsewhere says of Wedderburn, "that he was one of the few great advocates who have also been great in the House of Commons."
Loughborough presided for thirteen years as chief justice of the common pleas, and for eight years as lord chancellor, with courtesy, dignity, integrity, lenity, firmness, and impartiality. His learning, although not profound or exact, was generally sufficient. His judicial oratory was of the most elegant and captivating description, and his judgments were graced from his literary stores. He was really a merciful man, although theoretically quite the reverse. He approved the dissection of the bodies of malefactors, and opposed the changing of the punishment for coining from burning to hanging, in the case of women, because of the greater terror of the spectacle of burning, while "no greater degree of personal pain is thus inflicted, the criminal being always strangled before the flames are suffered to approach her body." But
Lord Campbell justly says, "such sentiments reflect discredit on the times rather than the individual." There has been some animadversion respecting his conduct on the trial of the Gordon rioters. Mr. Jesse declares that nothing like it had been seen since Jeffreys. But a careful scrutiny does not sustain this charge. Twenty-nine of the rioters were hanged, but under the law of the time they deserved it, and in his several charges he cannot be accused of an undue leaning against the prisoners. So, too, he has been roundly abused for deciding that gleaning, without the consent of the owner of the field, is trespass. Mr. Howitt, who thinks him one of the wickedest of the human race, comments on this with severity, and says "the law of Moses was more benevolent than Loughborough law.” But Mr. Howitt is a sentimentalist, and therefore forgetful; else it would have occurred to him that Loughborough law hardly justified the doctrine of "an eye for an eye, and a tooth for a tooth." Still it must be confessed that Loughborough was not a great lawyer nor a great judge. He was not a lawyer by nature; he was a politician and a debater. While he transacted the business before him satisfactorily, his judgments will never be quoted as authority or perused for their learning.
Wedderburn was a most accomplished political debater and orator; Campbell thinks the greatest, for a lawyer, that ever sat in the House of Commons. "More sarcastic than Murray, more forcible than Pratt, more polished than Dunning, more conciliatory than Thurlow, he combined in himself the great physical and intellectual requisites for swaying a gentlemanlike mob." It must be remembered that Fox and Burke gained no decisive advantage over him, and he had the art to make the American war appear just and well conducted. In this, however, he had the sympathies of the audience on his side. But Wedderburn debased his great powers to the service of a tyrannical court and the crushing of liberty and reform. He was the most earnest advocate of the doctrine of constructive treason, and promoted the State prosecutions against Tooke and others, which terminated so disastrously to the crown, thanks to the sublime exertions of Erskine. He opposed the extension of mercy in the cases of the clergymen Muir and Palmer, convicted of sedition. In short, he out-Heroded Herod in his endeavors to serve the court and advance his own interest, so that at last even the king said to him, "You have got us into the wrong box, my lord; you have got us into the wrong box; constructive treason won't do, my lord, constructive treason won't do."
Wedderburn and Thurlow in the lower house, and Mansfield in the upper house, of Parliament, were the staunch enemies of American independence, and to Wedderburn particularly were due those extreme measures which resulted in the disruption
of the ties which bound the colonies to the mothercountry. Gibbon called North "the Palinurus of the State," who might safely sleep, while Wedderburn and Thurlow remained at their posts to watch out the long debate. "The minister," said Horne Tooke on his trial, "sat secure between his two brazen pillars, Jachin and Boaz, to guard the treasury bench." Townsend says "the one was the Ajax, the other the Ulysses, of debate; the one blunt, coarse, and vigorous, and hurled hard words and strong epithets at his opponent in a tremendous voice; the other elegant, subtle, and insinuating, arrayed his arguments in all the persuasive guises of rhetoric, and where he could not convince the reason or move the passions, sought to silence objection with ironical pleasantry and bitter sarcasm." The most interesting incident, to an American, in Wedderburn's political career, was his invective against Dr. Franklin in the affair of the Hutchinson letters. Franklin unquestionably never cared to explain how he obtained possession of the letters, but he stood unmoved and listened to Wedderburn's terrific denunciation before the Privy Council. The severest thing in the peroration was the declaration, "henceforth he will esteem it a libel to be called a man of letters, homo trium litterarum,"— the Roman fur, or thief. This speech produced a tremendous effect on the British nation, and did much to stir up the strife which ended so gloriously for our country. On account of it he was burned in effigy at Philadelphia. A contemporary epigrammatist wrote:
"Sarcastic Sawney, swoll'n with pride and hate, On silent Franklin poured his venal prate; The calm philosopher, without reply, Withdrew and gave his country liberty." Franklin himself says that the published report of the speech was "perfectly decent" in comparison with the speech as delivered. Undoubtedly Wedderburn had received a retainer to abuse Franklin
in unmeasured terms, and he gave his money's worth. It is a noteworthy fact, that when Franklin, on the termination of the war seven years afterward, as ambassador at Paris, signed the articles of peace, he wore the identical suit of clothes which he wore when Wedderburn delivered this philippic, and which he had never put on since, and never wore again. Nothing is left to us of this great speech save the peroration, and of this Brougham says, rather unjustly, "we are thus reminded of some statue of Cato, of which nothing remained save the middle region." Franklin himself testified to its rankling effect by his continual references to it, although at the same time he affected to despise it, and said of the orator, that so mercenary a man would have said as much in favor of the devil, as he had said against him, if he had been well paid for it.
Loughborough had neither wit nor humor, and his conversational powers were small. His private
morals were irreproachable. He was a sincere patron of learned men. In his private intercourse he was uniformly considerate, amiable, and courteous. His benefactions were considerable. When the French chancellor sought an asylum in England, he was welcomed by Loughborough, who gave him the use of his own house, and conferred gifts on him, amounting in a few years to more than £5,000. He was one who "did good by stealth," but perhaps would not have "blushed to find it fame." He was indeed always profuse in his expenditures, and imposing in his display. He maintained great hospitality and state as chancellor, always going to court with his attendants in two magnificent carriages,- a great contrast to Eldon, who lugged the seals on foot through the mud, or carted them in a hackney-coach if the weather was bad. In person he was small and somewhat insignificant, but his features were well-shaped, and so great was his dignity that his diminutive stature was overlooked. He had a trick of raising himself on his toes when he spoke, so that he literally grew with his subject, and seemed of imposing size. He was accused of contemplating his image in a mirror, and of practicing his gestures and poses before it, which accusation led Dr. Johnson gravely to defend him, saying of him and of one Cator, a wealthy timber merchant, who was also vain: "They see, reflected in that glass, men who have risen from almost the lowest situations in life, one to enormous riches, the other to every thing this world can give,—rank, fame and fortune. They see, likewise, men who have merited their advancement by the exertion and improvement of those talents which God had given them; and I see not why they should avoid the mirror;"-a reflection which shows the great Doctor almost as snobbish as his little follower.
ity. His literary taste was elegant, despite little Miss Burney's rebuke for his criticisms on some of the characters of her novel, The Braytons. In his distribution of the patronage of his office he was just, considerate, and courteous, presenting in his manner of conferring benefits a strong contrast to the bearish Thurlow.
As Loughborough deserted both the political parties of the country by turn, his reputation has been caught between two opposing fires. He is one of the best-abused men in history. Horace Walpole calls him a "fiend" and "thorough knave." George Third, who had been demented, exclaimed, when he learned of Loughborough's death, “I have lost then the greatest scoundrel in my dominions!" When this remark was repeated to Thurlow, he exclaimed, "Said he so? then, by G-d, he is sane!" Brougham says of his retirement from public service, that he had not "the virtue to employ his remaining faculties in his country's service by parliamentary attendance, or the manliness to use them for his own protection and aggrandizement." Junius says that "to sacrifice a respected character and to renounce the esteem of society," was in him "rather a profession than a desertion of his principles," and describes this as speaking "tenderly of this gentleman, for when treachery is in question I think we should make allowance for a Scotchman;" and again, "Wedderburn even treachery cannot trust; his reputation for slyness is proverbial." But Brougham's summing up is still more severe: “A man of shining but superficial talents, supported by no fixed principles, embellished by no feats of patriotism, nor made memorable by any monuments of national utility; whose life being at length closed in the disappointment of mean and unworthy desires and amidst universal neglect, left behind it no claim to the respect or gratitude of mankind, though it may have excited the envy or admiration of the contemporary vulgar." This is what it is to deceive both parties! Loughborough had not the forecast of the unjust steward, who, when he cheated his
fortunate for him that he happened to be whig when the "Rolliad" was written, and tory when the Anti-Jacobin was written, else he might have suffered again as years before he was described in the "Rosciad: "
Although Loughborough was a man of culture, and a patron of learned men, he has left no work behind him, either in law or in literature. Wraxall says many attributed to him the authorship of the Letters of Junius, but he does not support this opinion, but attributes the authorship to "Single-master, made friends of his master's debtors. It is speech" Hamilton. Mr. Townsend, in his sketch of Loughborough, in the Law Magazine, incorrectly supposing that Wraxall had given Loughborough the credit of the letters, disagrees with him, and says, "we must live in the faith that 'aut Lord Sackville aut Diabolus' was the author of those stinging satires; "- from which opinion the editor dissents in a note. It is one of the amusing curiosities of biography, that when Mr. Townsend published his sketches in a book, entitled "Lives of Twelve Eminent Judges," he changed the phraseology to "aut Francis aut Diabolus." In his youth, Loughborough wrote some papers for the Edinburgh Review, and late in life he published a little treatise "On the State of English Prisons, and the Means of Improving them," which did honor to his human
"To mischief train'd e'en from his mother's womb,
And reach the heights which honest men despise,
Dull 'mongst the dullest, proudest of the proud,
Loughborough also figures in Thurlow's Probation-
"D-mn Loughb'rough, my plague-would his bagpipe were split!"
He is also the subject of one of Sayer's caricatures. A debate had arisen, in 1755, on the "Irish Propositions," in which Stormont, for himself and Loughborough, who was absent, threw obstacles in the way of the secretary for home affairs, Sydney. The picture represents Loughborough, his face turned away, turning an enormous auger, with Stormont's head, and boring a piece of timber with two knots inscribed "first proposition" and "second proposition."
before referred to. Such of the minutes of this club
of an elective crown. And yet, on the question de
bated at another time, "Whether, in the constitution of Great Britain, it was a good political maxim that the king could do no wrong," this prominent champion of the Revolution took the affirmative side. His
precise argument was, that inasmuch as there was no mode of trying or punishing a king, the law considered that it would be better to say that the king could do no wrong, than to suppose him to do wrong and yet not to punish him. Benson's position was not dictated by any real desire to screen the king from punishment, but he was willing to let his majesty off in
order to establish an abstract principle.
True, however, to those principles which governed
It is foreign to our purpose to trace the tergiversations and depict the disappointments of the life of this splendid adventurer, spent in the chase after the lord chancellorship. He was ever a mercenary in politics, a complete political weathercock, always turning in the direction of the great seal. For years it eluded his grasp. At one time, when he deemed himself sure of it, it was placed in commission, and he was appointed first commissioner! But his artful, supple, and accommodating behavior at length prevailed, and he clutched the coveted prize how trifling and fleeting a reward for such sacrifice of manliness and principle! In short, his poli-him in the Revolution, Benson concluded his argument tical career was totally unprincipled. In this respect, however, he was little worse than the best men of his time. One has only to read Fox's letter to him, apologizing for offering the seals to his rival, Thurlow, a letter of which the writer confessed that he felt ashamed-to understand how utterly corrupt and venal the politics and the politicians of the day were. It is pitiful and humiliating to observe men of great intellect prostrating themselves and prostituting their powers in the strife for the baubles of office; but when two men like Thurlow and Wedderburn were rivals for the same office, their unscrupulousness, their servility, their insincerity, and their eagerness, fill one with amazement and shame. Their unworthiness as statesmen is in singular contrast with their purity as judges.
by maintaining that the people, "if sensibly oppressed, would break all ties of allegiance and assert their natural rights," and that "they would new-model the constitution, as was the case in Rome upon the expulsion of the Tarquins."
In this ripening spirit of republican independence, he declared at the very commencement of the war, that he did not fear Lord North, nor Lord Mansfield, nor all the lords and devils upon earth."
But I desired, in the preparation of this paper, more particularly to speak of another pre-revolutionary club which existed in the city of New York through the last half of the decade which immediately preceded the Revolution. This society was called " The Moot." It was composed entirely of lawyers, who met regularly to discuss legal questions only. It was formed in 1770, and continued its meetings down to the 7th of April, 1775, or a few days previous to the battle of Lexington, which was the precursor in this city as elsewhere of the dissolution of many social ties.
The first officers of the Society were William Livingston, President; William Smith, Vice-President; and Samuel Jones, Secretary. Mr. Jones was succeeded as Secretary by Mr. Jay, and he by Peter Van Schaack, who held that office during the two last years of the existence of the Moot. He was the last custodian of its records; some of which are still preserved, and are matters of curious reference for a modern lawyer. The deliberations of the club were rendered highly useful by the regular attendance of the elder members of the bar, who participated in the debates upon a footing of perfect equality with their juniors. The names of those veteran lawyers, William Smith, Samuel Jones, James Duane, John M. Scott, Richard Morris, William Livingston, and Benjamin Kissam, need but be mentioned to prove that the debates in which they participated could not have been barren of legal sagacity, or of profound research into the hidden wisdom of the common law.
This society was established at a time when party spirit in the province had risen or was rising to a
height, and this fact will probably account for the introduction of this curious article into the constitution of The Moot:
"5. No member shall presume, upon any pretense, to introduce any discourse about the party politics of this Province, and to persist in such discourse after being desired by the President to drop it, on pain of expulsion."
With the exception of the first meeting at Barden's, and the second at Sam. Francis', The Moot held its sessions at Bolton's.
The following gentlemen were regular members of this society: William Livingston, Benjamin Kissam, Richard Morris, Samuel Jones, John Jay, William Smith, John Morin Scott, James Duane, John Tabor Kempe, Robert R. Livingston, Jun., Egbert Benson, Peter Van Schaack, Stephen Delancey, David Matthews, William Wickham, Thomas Smith, Whitehead Hicks, Rudolphus Ritzma, Gouverneur Morris and John Watts, Jun.
When, in the history of the bar of the city of New York, has there been, at any one time, such an array of able lawyers as is exhibited in those twenty members of The Moot, constituting as they did almost the entire bar, not only of the city, but of the province of New York!
As will readily be believed, the discussions of this body were conducted with great gravity. They were carried, on some questions, through several successive meetings, in consequence of what was deemed the importance of the question, and the desire to arrive at a correct conclusion. It is traditionary that the conclusions thus arrived at were considered as settling the law on those points, giving to The Moot the character of a court of the last resort.
The records of this body disclose what I think may be regarded by the profession as an interesting historical fact. They show that on the 3d day of February, 1773, it was ordered "that three members of The Moot should be appointed on every first Friday in the months of April, July, October and January to take note of all questions of law that may be agitated in the Supreme Court during the succeeding term, and that they make report thereof and produce them to The Moot with all convenient speed."
The Moot thus, as it were, resolved itself into a tribunal for the supervision, if not the correction of the errors, of the Supreme Court.
The first committee appointed under this order were Mr. Duane, Mr. Jones and Mr. Jay, and they were the first reporters of the proceedings of our Supreme Court. The appointment of a regular reporter for that court, and the publication of its decisions in book form as now practiced, was not commenced until twenty years or more after the period of which I am now speaking.
Although the meetings of The Moot were broken up, and its organization disrupted, by the turmoils of the
Revolution, some at least of its members hopefully
looked forward to the time when their reunions would be restored. Thus, in April, 1778, when a prospect of peace seemed to be opened by the recent alliance with France consequent upon the surrender of Burgoyne, Mr. Jay thus significantly wrote to an intimate friend and brother lawyer (who, like himself, had retired from New York in consequence of its occupation by British troops): "The wise ones say we shall be in New York next winter." To this Mr. Jay's correspondent classically replied: "Most sincerely do I wish that the
prediction of the wise ones may be verified. Once more to enjoy those social and rational hours of which you and I have passed so many together, would be the height of my wishes. I could then say nunc dimittis; or rather, I might wish to live forever. A recollection of those happy scenes, of our Clubs, our Moots, and our Broad Way Evenings fills me with pleasing melancholy reflections. Fuimus Troes, fuit Ilium."*
The great name of Alexander Hamilton does not appear in the surviving minutes of either of these clubs. He was probably too young to be a member of either of them; and he was licensed to practice in 1782. An old letter is before me, written from New York in February, 1784, which states: "Phocion is said to be written by Col. Hamilton, a brave, good, sensible man. He has laid aside his regimentals, and now cuts a figure at the Bar." H. C. VAN SCHAACK.
MANLIUS, December 22, 1875.
HE Supreme Court of the United States in Semmes, plaintiff in error, v. United States has just decided a question relative to the confiscation of property. Proceedings in rem. were instituted under the confiscation act of July, 1863, against real property of the respondent, which proceedings resulted in the condemnation of the property April 5, 1865. On the 11th of the same month a writ of venditionis exponas was issued, commanding the marshal to sell the property on the 18th of the same month, but the marshal did not sell the same on that day, for the reason that the best price bid at the time did not amount to twothirds of the appraised value of the property. It appears that two lots of land were embraced in the libel and condemnation which, in fact, were not the property of the respondent. The decree was opened to correct this error; and the correction having been made, the residue of the lots were sold, in pursuance of a second advertisement, and the money was paid over to the clerk of the court. Held, that the decree of condemnation being entered nearly two years and a half before the President's amnesty proclamation, the property in controversy fell within the exceptions in the proclamation and was not restored to the respondent; that the property condemned under the act of congress aforesaid became the property of the United States from the date of the decree of condemnation, and that as the decree was only opened for the purpose of releasing the two lots improperly included, the respondent could not take advantage of this; also that the respondent could not complain that the marshal postponed the sale.
Proceedings under the confiscation act in question are justified as an exercise of belligerent rights against a public enemy, and are not in their nature a punishment for treason; consequently, confiscation being a
proceeding distinct from and independent of the trea
sonable guilt of the owner of the property confiscated, pardon for treason will not restore rights to property previously condemned and sold in the exercise of belligerent rights, as against a purchaser in good faith and for value. Per Clifford, J. In this case it was also held that a judgment would not be reversed by this court because the writ of error from the Circuit Court to the District Court was made returnable in
* Letter from Peter Van Schaack.