Life of Lord Chancellor Midleton - concluded

Chapter XXXVII. **

Life of Lord Chancellor Midleton - Concluded. **

A cause which soon grew into national importance came into the House of Lords, while Lord Midleton was Chancellor, Sherlock *v. *Annesley. The appeal before the Lords was presented by Hester Sherlock, widow, against whom a decree was made in the Court of Exchequer on February 24, 1709, in a cause in which the appellant was complainant, and Maurice and John Annesley, Esqs., defendants. The appellant having sworn she was not worth five pounds in any worldly substance over and above time matter in question, was admitted to prosecute her appeal ‘in formal pauperis. On hearing the appeal on June 19,. 1716, the House of Lords varied the decree of the Exchequer in many important particulars. They set aside deeds containing agreements, and ordered them to be delivered up to the appellant, and that appellant should have a portion and maintenance. From this judgment of the Irish House of Lords, Maurice Annesley appealed to the English House of Lords, by whom the decree of the Irish Court of Exchequer was confirmed, and an order made to put him into possession of the disputed estate in the county Kildare. Annesley also served Hester Sherlock and her attorney with an order from the right hon. the Lords Spiritual and Temporal in Great Britain, assembled in Parliament, dated June 12, grounded upon the petition and appeal from the decision of the Irish House of Lords, by Maurice Annesley, whereby the decree of the Irish Lords, June 19, 1716, was complained of, and alleged no appeal lies before the House of Lords in Ireland from any decree of the Court of Exchequer in that kingdom, The petition of Mrs. Sherlock prayed the Irish Lords to take the premises into their consideration and make order thereon. The Lord Chancellor of Ireland was directed to write circular letters to the Peers who were absent from Parliament, acquainting them that the House required their attendance on the day specified. On September 23, 1717, their Lordships met, when it was resolved:- ‘that this House will support its honour, jurisdiction, and privileges, by giving the petitioner, Hester Sherlock, effectual relief, pursuant to what was ordered and adjudged by the House on June 19, 1716.’ [Lords’ Jour. Ir. vol. ii. p. 559.] A Committee of fifteen Peers - ten lay and five spiritual - was then appointed to consider the proper method of relieving the said Hester Sherlock, with power to send for persons, papers, and records, to hear all matters, and report thereon. On the Committee making their report, it appeared that a sum of 1,507l. was due to Hester Sherlock, and the lands of Little Rath, &c., in the barony of Naas, county Kildare, chargeable with the payment of the said sum. The Committee reported in their opinion, that the Sheriff of the county Kildare is the proper officer to execute the decrees of this House, by putting Hester Sherlock into possession of those lands till the sum of 1,507l. be paid. The Clerk of the House was then directed to prepare an order to the Sheriff, pursuant to the report which was done, stating, “this shall be a sufficient warrant in that behalf.”’

This course proved a very unfortunate one for the Sheriff of Kildare. It placed him between two hot fires. He had no sooner complied with the order of the Irish Lords, and put Hester into possession, than he was attacked by the Irish Barons of the Exchequer, who, by injunction, required the Sheriff to restore Annesley to the possession of the lands, and to support and keep him in possession till the further order of the Court, or until the said Annesley be evicted by due course of law. The Sheriff refused to execute the injunction, thinking the Lords were stronger than the Barons, and that if he complied he committed a breach of the order of the House of Lords, their Lordships’ rights and privileges.

On May 13, 1718, Annesley moved the Court of Exchequer on affidavits, stating, as I have mentioned; thereupon Chief Baron Gilbert, and Barons Pocklington and St. Leger ordered the Sheriff to be fined, and on June 30, 1718, an attachment was directed to the Pursuivant against the Sheriff. The unhappy Sheriff was obliged to abscond, and lie close to avoid arrest, unable to attend to his duties, and put to considerable loss. He petitioned the Lords on June 10, 1719, which was referred to the Lords’ Committee for Courts of Justice.

On July 27, 1719, the Lords’ Committee for Courts of Justice made their report. After detailing the circumstances already mentioned, they report:- ‘That by the minutes of the Chancery side of the Exchequer, it appears that the Lord Chief Baron of the Exchequer, on February 19,1717, produced a letter, dated London, February 8, 1717, signed Cowper C., [Lord Cowper, Lord Chancellor of England, resigned April 15, 1718. - Vide Lord Campbell’s Chancellors of England, vol. iv. p. 257.] in which two papers were inclosed, dated February 6, 1717, signed William Cowper, Cler. Parliamentor., directed to time Lord Chief Baron of the Exchequer in Ireland, and the rest of the Barons of the said Conrt, alleged by the Chief Baron to be orders from the Lords in Great Britain, requiring them to restore Maurice Annesley, Esq., to the possession of the lands he was dispossessed of, pending his appeal in the House of Lords of Great Britain. That thereupon the Chief Baron and other Barons, without motion by counsel or attorney, issued the injunction for restoring Annesley to the Sheriff of Kildare, who refused to execute the said injunction.’ The report then details various fines on the Sheriff, that the Chief Baron arid other Barons had due notice of the order of the House, that by the minutes of June 13, 1718, it appears that the Chancellor of the Exchequer declared that the order of the House of Lords of England, being only directed to the Barons of that Court, and the order which was made thereon was made as if done by him, and the Treasurer as well as the Barons; and apprehended when the order was not directed to him, or he present when the order was made, he had nothing to do therewith, and did not consent thereto. It was believed this omission in the order was error. The attachment against the Sheriff was then stated with the various other proceedings. ‘That on February 4, 1718, the Lord Chief Baron and Mr. Baron Pocklington, upon receipt of orders from the House of Lords, in a letter from the Lord Chancellor of England, dated London, January 27, 1718, signed Parker C., [Thomas Parker, Earl of Macclesfield, was born July 23, 1666, called to the bar May 21, 1691, and returned to Parliament as member for Derby, 1705. He became Chief Justice of the King’s Bench in 1714, and, in 1716, was raised to the peerage as Baron Parker of Macclesfield. On the resignation of Lord Chancellor, Lord Cowper, he received the custody of the Great Seal as Lord Chancellor, on May 12, 1718, which he held nearly seven years. Shortly after his resignation in 1725, he was impeached for corruption, found guilty, and fined 30,000l. The King (George I.) helped him to pay this sum. - Foss’s Judges of England, vol. viii. p. 50.] which came by post, directed to the Lord Chief Baron of the Exchequer in Ireland, and the rest of the Barons of said Court; whereby it was ordered that the Barons should cause Hester Sherlock to account before them upon oath for the rents and profits of the estate in question, which she had made or received since her gaining the possession thereof, by the order of the House of Lords in Ireland, and to pay the same to Maurice Annesley, Esq., but without prejudice in case of appeal. The Barons were further ordered to take effectual steps to put Annesley into possession.’ The steps taken were to issue an injunction against Hester Sherlock and the tenants, which it was stated was never served, but all the tenants attorned but one, which put her out, and that tenant was attached for contempt. The report also set forth the oath administered to the Barons of the Exchequer. [‘Ye shall swear, that well and truly ye shall serve the King in the office of Baron of his Exchequer, and that truly ye shal1. charge and discharge all manner of people as well the poor as the rich; and that for highness nor for riches, nor for hatred, nor for the estate of no manner of person or persons, nor for any good-deed, gift, nor promise of any person, the which is made to you, nor by craft, nor by engine, ye shall let the King’s right., nor none other person’s right, ye shall disturb, let nor respite against the laws of the land, nor the King’s debts ye shall put in respite, when that they may goodly be levied. And that the King’s needs ye shall speed, afore all other. And that for gift, wages, nor good deed, ye shall lean, disturb, nor let the profit and reasonable advantage of the King in the advantage of any other person, nor of yourself. And that nothing ye shall take of any person for to do wrong, or right, or delay, or for to deliver or to delay the people, which that have to do afore you, but as hastily as you may, them goodly to deliver without hurt of the King. And having no regard to any people that might thereof to you be therein, you shall make to be delivered. And whereas ye may know any wrong or prejudice to be done to the King, ye shall put and do all your power and diligence that to redress. And if he may not do it, ye shall tell it to the King, or to them of his Council, which may make relation to the King, if ye may not come to him, to the King’s Majesties’ Lieutenant, or other Chief Governor or Governors of this realm for the time being. And the King’s Counsel ye shall keep in all things. As God you keep and by the contents of this book.’] The Irish Lords then resolved to examine the Barons viva voce.

The Lord Chief Baron [Jeffrey Gilbert, Chief Baron of the Exchequer, was born in Kent, October 10, 1674. He was called to the bar June 1698, and his equity reports begin in 1706. In November 1714 he was appointed one of the judges of the Court of King’s Bench in Ireland, and in the following year became Chief Baron of the Irish Court of Exchequer. It is stated he was offered the Lord Chancellorship of Ireland, but declined the honour, and exchanged the chief place on the Irish Exchequer bench to become a puisne Baron of the English Exchequer in May 1722. He was knighted in 1724, and on the resignation by Lord Macclesfield of the Great Seal, he was appointed one of the Commissioners for holding it till the appointment of Lord King as Lord Chancellor in 1725. He then became Chief Baron of the English Exchequer, which he held until his death in 1726 - Foss’s Judges of England, vol. viii. p. 32.] and the other Barons were asked, ‘Whether they did at any time acquaint the Chief Governor or any of His Majesty’s Privy Council, with the orders they had received from Great Britain in the cause of Sherlock * v. *Annesley.’ Who answered, by the Lord Chief Baron, ‘That if this question was put, he was to criminate himself, he desired to be excused from answering it.’

It was then resolved by the House, ‘That the High Sheriff of the County Kildare, Alexander Burrowes, Esq., in not obeying the injunction issued forth of his Majesty’s Court of Exchequer, dated February 22, 1717, had behaved himself with integrity and courage, and with due respect to the orders and resolutions of this House. That the fines imposed on him be taken off, that the Chief Baron and other Barons in the cause of Sherlock *v. *Annesley, as also against the High Sheriff of the County Kildare, had acted in direct violation of the orders and resolutions of this House, in manifest derogation to and diminution of the King’s prerogative of finally judging in his High Court of Parliament in Ireland; as also the rights and privileges of this Kingdom, and the Parliament thereof.’ The case being adjourned to July 29, it was resolved *nem. con. *‘that it is the duty of the Barons of the Exchequer when there is any wrong or prejudice done to the King, in matters lying before them, to inform the King or the Chief Governor or Governors of this Kingdom, or the Council.’ The next resolution was not passed so unanimously. It must have been hotly debated, and though five out of seven of the dissentients were Spiritual and two Temporal Peers, the arguments of one of these two must have caused great weight with a discussion of this nature, no other than the then Lord Chancellor Viscount Midleton.

On the question, ‘That the case of Sherlock and Annesley, as it lately lay before the Barons of the Exchequer, being matter not only of law but of State, ought to have been laid before the King, the Chief Governor or Governors of this Kingdom, or the Council of the same, it so nearly concerning his Majesty’s prerogative, and the interests of the whole Kingdom.’ There were seven dissentients, and on the question, ‘That the Barons in the same acted contrary to law, and to the established practice of the King’s Courts,’ the same dissentients are named. As the House consisted of forty-one Peers, of course there were thirty-four in support of the resolution, and the majority proceeded to take strong measures in support of what they regarded as their privileges. They ordered the Serjeantat-Arms to arrest Annesley and his attorney, and keep them in safe custody until further order. They next ordered the Lord Chief Baron, and the other Barons in attendance in the House to withdraw, whereupon they resolved that Jeffrey Gilbert, Esq., Lord Chief Baron, (and the two other Barons *seriatim), * having taken upon them to put in execution a pretended order from another court, contrary to the final judgment of this High Court of Parliament, in the cause between Sherlock *v. *Annesley, is a betrayal of his Majesty’s prerogative, and the undoubted ancient rights and privileges of this House, and of the rights and liberties of the subjects of this Kingdom.’ To this the Chancellor and the other Peers named dissented; [The dissentients were:- John Meath, William Kildare, Henry Killaller and Achonry, Doneraile, Tim Kilmore and Ardagh, Micleton, Canc., Will Derry. Lords’ Jour. Ir. vol. ii. p. 626.] but as the majority prevailed, they were powerless. It was then ordered that the Chief and other Barons be taken into the custody of the Gentlemen Usher of the Black Rod. This caused another Peer, Viscount Fitz William, to join the dissentients. The Peers then drew up a very elaborate representation to the King. They represented that, by ancient records and Acts of Parliament, it appeared that the King and principal men of Ireland, did, without compulsion, submit to Henry II. as their liege lord, who, at the desire of the Irish, ordained that the laws of England should be enforced and observed in Ireland. [Coke 4th Inst. 349. Matt. Paris, Anno 1172, p. 103.]

‘That by this agreement Ireland obtained the benefit of the English laws and many privileges, particularly that of a distinct Parliament, here as in England, and of having weighty and momentous matters relating to this Kingdom treated of, discussed, and determined in the said Parliament.

‘This concession and compact, confirmed by successive Kings, encouraged many English to settle in Ireland, where they were to enjoy the laws and liberties, and live under the same constitution they had formerly done in the Kingdom of England. [Pryn on 4th Inst. p. 287. Anno 31. Edw. III.] That by this constitution the English subjects of this Kingdom were enabled faithfully to perform their duty to the Crown of England, and therefore, insisted upon their being preserved inviolate.

‘That though the imperial Crown of this realm was formerly inseparably annexed to the. imperial Crown of England, and is now to that of Great Britain, yet this Kingdom, being of itself a distinct dominion, and no part of the Kingdom of England, none can determine concerning the affairs thereof, unless authorised thereto by the known laws and customs of this Kingdom, or by the express consent of the King. [Pryn, chap. v. p. 214, Anno 2 Eliz. Coke 4th Inst. p. 349.]

‘That it is an invasion of the prerogative, and a grievance to the loyal subjects of Ireland, that any court of judicature should take upon them to declare that the King cannot determine all controversies between subjects in Ireland, in the Parliament summoned to meet here, or that when they appeal to the King in Parliament here in matters wholly relating to this Kingdom, they bring their cause before an incompetent judicature.

‘That in the removal of causes from this Kingdom into England, such usages have been by slow degrees. At first the judges here being to determine the causes by the Common Law of England, and not knowing well the usages there, applied to Henry III., their King, for information, who gave them an account of what the Common Law and custom in like case was. [14 Hen. III. Stat. Hibern. made at West. *(sic) *in Lords’ Jour. Jr. vol. ii. p. 655.] And this undoubtedly by the advice of the Justices of the King’s Bench, who then were obliged to attend the King, wherever he should be, And in process of time, when his successors had settled the Court of King’s Bench after another manner, and had forborne to sit there themselves in person, the application formerly to the King was then to the Justices, which gave rise to the custom of removing causes by Writs of Error from the King’s Bench in Ireland to the King’s Bench in England. But from hence to infer Appeals from the Peers of Ireland to those of England, is a consequence for which there is no manner of ground.

‘That for the practice of appealing from the High Court of Chancery in Ireland to the Lords of Great Britain, we can find but two precedents for such appeals before the Revolution - one in 1670, another in 1679. They happened at a juncture when no Parliament was held, and no opposition could be given. When the Parliament met, after twenty-six years intermission, complaints were heard, writs of error and appeals reserved, and orders made thereon, and their validity never was doubted until 1690, when two appeals from Parliament here were carried before the Lords in England. They declared the cases *coram non judice, *and, without hearing the merits of the causes, reversed the decrees that had been made here. That as the constituent parts of both Parliaments are alike in every particular, either some record, Act of Parliament, or ancient usage, must be shown, to make a difference, and the same jurisdiction lodged in the English must, also, be allowed to the Irish Parliament. And if it be looked on as illegal for any inferior county in Great Britain to act in direct opposition to the orders and decrees of the House of Lords there, the same must be concluded in this kingdom.’

When, in 1703, a Parliament of Ireland restored to the Earl and Countess of Meath the lands they had been dispossessed of by order of the Lords in England, they, nor their heirs, were ever disturbed. The Lords then refer to the case of Sherlock and Annesley, and to various technical objections, which they contended invalidated the proceedings, and thereby that the Baron violated the rules and practice of the Courts.

That if the King is deprived of his power of determining causes here in Parliament, those who are unable to follow them to Britain must submit to whatever wrongs they might suffer. That King Edw. III. was so sensible of the hardships the subjects of this kingdom suffered for want of having a means of reversing erroneous judgments within the kingdom, that, by charter, dated Augt. 30th, in the 29th of his reign, on the complaints of subjects of Ireland, he commanded all his judges and ministers, before whom any processes should be held, at the prosecution of the parties aggrieved, to return the Rolls of the Record and Processes into the Parliaments to be held in the kingdom of Ireland, and that the Records and Processes should be recited and examined, and the errors (if any should be found in them) duly corrected. [Pryn on 4th Inst. p. 286. Anno 29th Ed. III. It appears from the latter portion of this record that the original power of Parliaments in Ireland, settled by King Henry II., and referred to in the Charter had afterwards been somewhat restrained as to writs of error, but the mandates of later sovereigns which narrowed the original powers of the Irish Parliament, were by this Charter recalled and made void, - Vide Lords’ Jour. Ir. vol. ii. p. 658.] They refer to the similarity in the mode of summoning Parliament, and urge, if the power of judicature be taken away by a vote of the English Lords, the same Lords may deprive the people of Ireland of the benefit of their whole constitution.

It is notorious, the Lords of Great Britain have no power of putting the decrees into execution within this kingdom, as is evidenced by their application to the King to cause their decree to be executed by an extraordinary interposition of Royal power. Complying with which would most highly affect the liberties of the loyal subjects of Ireland. That to prevent the appellant from making further application to the Irish Parliament, the King’s Deputy Receiver had paid her over 1,800l., which he expected would be refunded by the Government. That these proceedings greatly embarrassed the Parliament of Ireland, disquieted the loyal Protestants, brought Sheriffs and officers of Justice under hardships, by the clashing of different jurisdictions. Then follows this curious passage:- ‘Nor can we but with grief observe, that, while many of the Peers and Commons who sat in Parliament were *Papists, *their judicature was never questioned. But of late, since only *Protestants *are qualified to have a share in the legislature, their power, and the right of hearing causes in Parliament, hath been denied, to the great discouragement and weakening of the Protestant interest in Ireland.’

They hoped that all these matters would induce the King to justify what they had done for supporting the Prerogative, and the rights and liberties of themselves and fellow-subjects. Again the Lord Chancellor, five Bishops, and Lords Doneraile and Shelburne were dissentients, but the majority had their way, and the proceedings were transmitted to England and brought before the British House of Peers. Then the tables were turned, and the Barons were in the ascendant. The Lords resolved, ‘That the Barons of the Court of Exchequer in Ireland, in their proceedings in the cause between Annesley and Sherlock, in obedience to their orders, had acted with courage, according to law, in support of his Majesty’s prerogative, and with fidelity to the Crown of Great Britain. That an humble address be presented to his Majesty to confer upon them some mark of his royal favour, as a recompense for the injuries they had received, by being unjustly censured, and illegally imprisoned for doing their duty.’

A further step was taken by the Parliament of England to prevent any similar appeal.

In 1719, was passed the Statute 6th George I. c. 5, intituled, ‘An Act for the better securing the dependency of the Kingdom of Ireland upon the Crown of Great Britain.’ It declared: I. Whereas, the House of Lords of Ireland having late, against law, assumed to themselves a power and jurisdiction to examine, correct, and amend the judgments and decrees of the Courts of Justice in the Kingdom of Ireland. That the said Kingdom of Ireland hath been, is, and of right ought to be, subordinate unto, and dependent upon, the Imperial Crown of Great Britain, and the Parliament hath power to make laws to bind Ireland. II. And be it further enacted ‘That the House of Lords of Ireland have not, nor of right ought to have, any jurisdiction to judge of, affirm, or reverse any judgment, sentence, or decree, given or made in any Court within the said Kingdom, and that all proceedings before the said House of Lords, upon any such judgment, sentence, or decree, are, and are hereby declared to be, utterly null and void to all intents and purposes whatsoever.’

This statute was repealed by 22 Geo. III. c. 53.

When we remember that the Chancellor of England at this period was Lord Macclesfield, [Thomas Parker. He had been Chief Justice of England and was created Earl of Macclesfield.] who, while Lord Chancellor Parker, had upheld the Barons of the Irish Court of Exchequer against the House of Lords of Ireland, we cannot feel surprised at this enactment. It destroyed, at once, the appellate jurisdiction of the Irish Parliament, until brighter days came, when the assumed power fell before the might of a nation determined to be respected. [By 23 Geo. III. c. 28 No Appeal or Writ of Error from any Court of Ireland shall for the future be brought into any of the Courts in England. The 39 and 40 Geo. III. c. 67 (Act of Union), article 8 provides for the bringing of Writs of Error and Appeals from Ireland before the House of Lords of the United Kingdom.]

‘Lord Macclesfield laid down doctrine with regard to Ireland,’ observes Lord Campbell, [Lives of Lord Chancellors of England, vol. iv. p. 528.] ‘that would now raise a rebellion in that country.’ The case to which the Ex-Chancellor of both England and Ireland refers was that of Sir John Fryer *v. *Bernard in Michaelmas Term, 1724. [2 Peere Williams, 261.] - a motion for a sequestration against the defendant’s real and personal estate in Ireland; in support of which it was alleged that the plaintiff had in England proceeded to a sequestration, but, that as the defendant had no property anywhere but in Ireland, there was no use in looking for one anywhere else. That a sequestration had been granted in the like case, as in that of Lord Ardglas *v. *Muschamp, [Verb. 135.] when the Court granted a sequestration into Ireland.

Lord Chancellor Lord Macclesfield said, ‘The plaintiff ought, at least, first to take out a sequestration here, and upon *nulla bona *returned, I will grant a sequestration which shall affect the defendant’s estate in Ireland. The Courts of Justice here have a superintendent power over those in Ireland; and, therefore, writs of error lie in Banco Regis in England to reverse judgments in Banco Regis in Ireland.’ [The learned editor, P. Williams, appends to this note of the case, between brackets, the following, *‘Sed Quere *to whom the sequestration against the defendant’s estate in Ireland is to be directed, and if it should not be by an order from the Lord Chancellor reciting the proceedings here, and directing the Chancellor of Ireland to issue out a sequestration there for the benefit of the plaintiff and towards satisfaction, of her demands.]

Lord Campbell in a note appended to this case states,- ‘I never could understand how this writ of error could have originated; for, if Ireland were a colony, or a conquered country, the appeal would not have been to the King’s Bench in England, but to the King in Council.’ [Lives of the Lord Chancellors of England, vol. iv. p. 528.]

Another cause for Irish discontent suddenly arose. In August 1723, when the Duke of Grafton undertook the Viceroyalty, the affair of Wood’s Patent was the popular grievance. In order to supply the admitted deficiency of copper money, tenders were called for, and that of Mr. William Wood, a considerable proprietor and renter of iron works, [Macpherson History of Commerce, vol. iii p. 114. Swift describes him as a hardware man and a low mechanic.] was accepted. A patent was granted, authorising Wood to coin half-pence and farthings, to the value of 108,000l. Sir Robert Walpole, the First Lord of the Treasury, took no step in this matter without consulting the great Sir Isaac Newton, who was Master of the Mint. He also required the counsel and advice of the Attorney and Solicitor-General for England, who approved of the proceedings. Sir Isaac Newton having reported that the coins in weight, goodness, and fineness, so far from falling short, exceeded the conditions of the contract, the project did not appear to present any possible grounds for public excitement, much less the popular exasperation created by the Drapier’s Letters. Probably the Drapier would never have had the opportunity of writing Iris scathing letters, but for the fact that Wood, unluckily and imprudently, agreed to pay a bribe to the infamous Duchess of Kendal, for her influence in getting the patent for him.

The Duchess of Kendal was one of George I.’s foreign mistresses. She was a woman of no personal attractions, but the King liked her, and installed her in the English Court. She is described as of a coarse bulky figure, which constituted sufficient attraction for the King. [History of England, by Lord Mahon, vol. i. p. 318.] ‘To intellect,’ adds Lord Mahon, ‘she could make still less pretension. Lord Chesterfield, who had married her niece, tells us she was little better than an idiot; and this testimony is confirmed by the curious fact, that one morning, after the death of her royal lover, she fancied that he flew into her window in the form of a raven, and, accordingly, gave the bird a most respectful reception.’ [Ibid.]

Imbecile as she may have been in the case of the raven, she was no fool when cash was to be had. Her rapacity for getting money for her patronage and recommendation was enormous; and it tells very badly for the Court when such corrupt practices could be exercised in the very household of the Sovereign.

The discovery of Wood having purchased the influence of the Duchess, made the Irish suspect, what, unfortunately, they had had too much experience of

• a gross job.. The Privy Council of Ireland had not been consulted upon a subject which so nearly concerned the kingdom. Wood, in a braggart and insolent tone, declared ‘he had influence to cram his half-pence down the throats of the Irish.’ [The storm raised principally by the Drapier Letters, written by Swift, caused a large sum to be given to Wood and the project was abandoned.] He made a mistake in estimating the extent of his influence, The Lord Chancellor, who bore no good will either to the Duke of Grafton or Sir Robert Walpole, did not assist them in allaying the storm. ‘The Chancellor had talents,’ says Lord Mahon, ‘but so high an opinion of them, that he always thought himself neglected and ill-used; and, though he could not venture to take part himself against the Court, yet his son, his secretary, his purse-bearer, and other dependents, did so publicly and warmly.’ [History of England by Lord Mahon, vol. ii. p 93]

The Duke of Grafton and the Lord Chancellor did not pull well together. The Duke was a nobleman of high honour and probity, but resembled the Chancellor in being proud and imperious, and both were quite conscious of the dignity of their respective offices. The Duke, moreover, was fretful and passionate. By no means deficient in abilities, yet not endowed with sufficient talent to guide the helm of State in a difficult period. Walpole said truly, *‘he was a fair weather pilot, that did not know how to act when the first storm arose.’ *[Cox’s Life of Walpole, vol. i. p. 382.]

Lord Midleton having been at the head of affairs as one of the Lords Justices, was not pleased at the disregard shown to him by the Viceroy, and, consequently, was not so obsequious as the Duke expected; for he complained bitterly to the Archbishop of Dublin of what he termed the disrespectful behaviour of the Lord Chancellor;’ and connived at the passing a vote of censure by the Lords [Ibid.] upon that learned Judge.

This vote of the Lords was thus obtained, The continued absence of Lord Midleton in England, under the plea of ill-health, caused much discontent amongst the Chancery Bar. A good share of the business of Chancery went to the Equity side of the Exchequer, and but few causes were heard by the Commissioners for hearing causes in Chancery during the Chancellor’s absence. His friends tried to excuse him by referring to instances of former Chancellors being absentees. Sir Charles Porter and Methuen were instanced, but, it was replied ‘they were Englishmen, and could not regard Ireland save as a country to which they had no tie.’ Then as to the plea of illness, they replied, ‘If the Chancellor’s health was so bad as not to be restored by an absence of sixteenth months, it was time for him to retire, and let some more active man hold the Great Seal.’

It has been well remarked that these complaints may have not entirely proceeded from zeal for the public good. Party, or anti-Ministerial motives may have prompted them. The power of the Brodricks was about equal to that of the Boyles in the county of Cork; and Lord Midleton had defeated the nominee of the Duke of Newcastle in the representation of a Sussex borough; these were offences not to be overlooked. The antagonistic feelings which subsisted between the Viceroy and Lord Chancellor also prompted the proceedings in the Irish House of Lords, where, probably, also were many desirous to mark their sense of his Lordship’s conduct, while the memorable cause of Sherlock *v. *Annesley was before them.

The proceedings soon assumed a definite shape. On December 19, 1723, an order was made in the Irish House of Lords, that the proper officers of the Court of Chancery do, on Saturday morning early, lay before this House an exact account of such Chancellors of this kingdom as, since the Revolution, have at any time during their continuance in that office, been absent out of the kingdom; when they went and returned; also that the Lords’ Committee of the whole House appointed to consider the grievances which have of late arisen to this kingdom, by the absence of officers necessary for carrying on the business and justice thereof, do inquire into the reasons and grounds of such absence. And that the officers of Chancery do, on Saturday morning, lay before the House an exact list and account of all causes and other matters depending in that Court, when the present Lord High Chancellor went last into England, and also an account of what causes were undetermined therein at the time of his Lordship’s return into this kingdom. Also a list of causes determined by the Commissioners for hearing causes during the Lord Chancellor’s absence. Alike order was made on the officers of the Exchequer Chamber; on the Clerk of the Paper Office, for copies of his Majesty’s letters relating to the Lord Chancellor’s going into England, and constituting Commissioners for custody of the Great Seal, and for hearing and determining causes in his absence. Pursuant to the order, William Cooper, Deputy Registrar of the Court of Chancery, delivered in writing at the Bar of the House, an account of the several Chancellors who had left the kingdom; also the causes determined in the Lord Chancellor’s absence, and other returns as directed. Mr. Barrington, Deputy Clerk of the Errors of the Exchequer Chamber, returned a list of Records from the Court of Exchequer, brought by writ of error into the Exchequer Chamber in the reigns of King William, Queen Anne, and King George. Cusack Baldwin, Esq., Deputy Clerk of the Rolls, handed in the Rolls which contained the licenses of absence granted to the Lord Chancellors, the Commissions for the custody of the Great Seal of Ireland, and for hearing causes in Chancery in the absence of the Lord Chancellor. Copies of the King’s letters, relating to the Chancellor’s going into England and for constituting Commissioners, were also produced.

The Lords’ Committee reported that the present Lord Chancellor went into Great Britain by license, for the despatching certain private affairs of his own about August 7, 1716, and returned on November 9 ensuing. That. he went thither by his Majesty’s command to attend the King on November 10, 1718, and returned on April 20, 1719. That he applied to the Lord Lieutenant for a license of absence for the recovery of his health, and, having obtained such a license, in which a command was inserted for his attendance upon the King s person at St. James’s, he again went into Great Britain upon June 12, 1723. And the Lord Chancellor, being asked ‘If it was not part of his duty to advise the King for his service and the good of his people?’ and ‘whether he had laid before his Majesty the inconvenience that would attend the King’s service and the. good of his people by his absence?’ answered ‘that he had not at that time,’ but saith ‘that his intention of saying he had not laid before his Majesty the inconveniences which would attend the King’s service and the good of his people in the question contained meant that he did not, in February 1721, advise the King of any inconveniences that might attend his Majesty and the kingdom by his going out of it at that time, he being in that state of health which necessarily required his going out of the kingdom for the preservation of his life, so as not to admit of a return of his Majesty’s further pleasure.’ But adds, ‘that in August 1722, after he had by the use of the Bath waters, recovered some use of his limbs, he returned to London, and acquainted the Secretary of State with his being able to return to Ireland, and was informed it was the King’s pleasure he should continue longer in England, till his Majesty should give further directions, or words to that effect, and his Majesty ordered him a further leave of absence, bearing date October 4, 1722.’

Mr. Cooper, Deputy Registrar of the Court of Chancery, was examined and stated that, during the absence of the Lord Chancellor, 189 causes were ready for hearing in the Court of Chancery; of these 102 were determined by the Commissioners for hearing causes during his Lordship’s absence, of which only four were, upon petition, reheard by the Chancellor, and in all these he affirmed the decrees.

That 87 of these 189 were depending at the time of the Lord Chancellor’s return, part of which might have been determined in Hilary and Easter Terms. That five causes determined by the Chancellor before his absence had been set down for rehearing, but not reheard until his return. On the evidence of one of the Six Clerks, it appeared that, by the end of Trinity Term 1723, all the causes ready for hearing were actually heard and determined by the Lord Chancellor, and that, on his Lordship inquiring in open court, ‘if there was any cause or motion remaining to be heard,’ the answer was ‘None,’ and that Mr. Gurney ‘had been a Six Clerk for twenty-three years, and during all this time, he never remembered greater despatch of business than while Lord Midleton was Lord Chancellor.’ Richard Malone, Esq., one of the most eminent Chancery barristers of Ireland, on oath deposed, ‘that he had not observed more rehearings in the Court since the Lord Chancellor’s return than at other times, but rather less, nor did he think more business went to the Chancery of the Exchequer during the Lord Chancellor’s absence than used to be at other times, although the attendance of lawyers was greater than usual, because the High Court of Chancery did not sit so often as formerly.’

The Lords’ Committee censured the Chancellor by this resolution -

‘Resolved - That it is the opinion of this Committee that, through the absence of the Lord High Chancellor, there has been a failure of justice in this kingdom, by the great delay in the High Court of Chancery and in the Exchequer Chamber. The Lord High Treasurer, and Vice-Treasurer, and Master of the Rolls being also absent.’

Whilst these proceedings were pending the Chancellor resolved not to gratify his enemies by resigning the Great Seal. He was fortified by the consciousness that while Lord Chancellor he discharged the onerous duties of his station in a manner to merit praise instead of censure. He committed to writing his determination, which I am enabled to place before my readers:- [Copied for this work by the Hon. William Brodrick, M.P., eldest son of the Right Hon. and Rev. Lord Midleton.]

‘1. My resolution is never to make it my own act to lay down, but rather to be laid aside, without any cause given by me, as I have been ill-used without any.

‘2. Never to decline serving the King while I can be serviceable to him.

‘3. Not to make any application to be continued, or to express any willingness to my being so, unless I may do it with honour, which cannot be, in my opinion, till I have reason to think I shall not be so neglected, slighted, and so ill-represented and thanked for my services as I apprehend I have been for some time.

‘4. I think and know I have served well, and hope whenever it shall be thought for his Majesty’s service to appoint me a successor, that I shall have the happiness of being dismissed like a faithful servant, with some mark of his favour, and not as if I had disgraced him, for my late treatment looks wholly that way.

‘If I may have reason to believe that I shall find this treatment, I am desirous to continue in that post where his Majesty has been pleased to place me, and will act in it, as I have always done, with zeal for his service and perfect fidelity to his interests; otherwise I neither desire to continue, nor make it my request to be rewarded.

‘5. If it might consist with my Lord Lieutenant’s concurrence, I wish to have leave to kiss the King’s hand in England though I were to return ever so soon after.’

But the resolution adopted by the Lords caused a change in his Lordship’s determination. He was not satisfied with the state of affairs in Ireland at this period, and resigned the office which be so ably held for eleven years- from 1714 till 1725. He was succeeded by Lord Chancellor West, whose tenure was of brief duration. Lord Midleton’s abilities as an Equity Judge rank very high, and it is much to be regretted that no reports have preserved decisions which were well worthy of remaining as safe beacons for the guidance of the profession he adorned.

Among the tributes paid to Lord Midleton for the part he took against Wood’s Patent, was one from George Faulkner, Dean Swift’s publisher, when preparing the ‘Drapier Letters’ for publication in a volume, he sought permission to dedicate them to Lord Midleton by the following letter:- *

To the Right Honourable Lord Viscount Midleton.*

‘My Lord,-You have so signally interested yourself in asserting the dying liberty of your country, that to offer the following papers to any other, would be the greatest injustice I could possibly be guilty of to your Lordship’s character, which must attend the fame of the greatest sovereigns that have adorned the British throne through the memoirs of futurity.

‘But among all the great actions of your Lordship’s life, your late conduct in the affair of the copper half-pence justly demands the nation’s thanks; and in my humble opinion, the Drapier himself would have been entirely silent in that affair had he not had so glorious an example as your Lordship to follow, whose every action testifies to the world that your greatest glory is in being what the ancient Romans so ardently desired a - ‘pater patriae.’

‘I humbly beg pardon for my presumption, and remain with all respect, my Lord,

‘Your Lordship’s most humble

‘and most obedient servant,

‘George Faulkner.’

The following endorsement on this letter, which is among the papers of Lord Midleton, kindly copied for me by the Hon. William Brodrick, M.P., shows the fate of the application:-

‘This paper was left at my house in my absence, on September 20, and brought to me by one of my servants while I was at dinner, in the presence of my son, Mr. Wall, and Mr. Stabury. I ordered the servant to tell the man who left it I could not by any means consent to the dedication of the Drapier to me, and if done, would complain of the printer.’

That the Ex-Chancellor preserved the regard of the Government appears by various employments conferred on him. In June 1725, he was named a Commissioner of public accounts, in conjunction with Sir Ralph Gore, Sir John St. Leger, and others. He also appears to have attended in the Irish House of Lords during the sessions of Parliament. Lord Midleton had a fine country-seat called Ballyannan, very agreeably situated near Cork Harbour. In his park is a small river that takes a subterraneous course, near which is a large romantic cave. [Smith’s Hist. County of Cork, vol. i. p. 147.

He was thrice married: first to Catharine, second daughter of Redmond Barry, Esq., of Rathcormack. This lady was of a very ancient and most respectable family in the county of Cork, now worthily represented by James Barry, Esq., of Ballyclough, in that county.

By his marriage with Miss Barry, Lord Midleton had issue: a daughter who died young, and a son, St. John Brodrick, who, in the reign of Queen Anne, represented the borough of Midleton, and afterwards the city of Cork, in the Irish House of Commons. He was also returned for the county of Cork, and married Anne, sister of Trevor Viscount Hillsborough. He died without issue male.

Some time after the death of his first wife, Lord Midleton, then Mr. Brodrick, married again. His second choice fell on Alice, daughter of Sir Peter Courthorpe, of the Little Island, in the county of Cork, to whom he was united in 1695.

By this lady he had two sons and a daughter. The elder of the sons named Courthorpe, died in infancy; the younger, Alan, survived him, and became the second Lord Midleton, and the daughter, named after her mother, Alice, married the Rev. John Castlemain, Fellow of All Souls College, Oxford. Alice, the second wife, died in 1703, and is also interred in St. Michan’s Church, Dublin. After being thirteen years a widower, his Lordship became again a votary of Hymen. He selected Anne, daughter of Sir John Trevor, Master of the Rolls in England, and widow of Michael Bill, Esq., of Hillsborough. There was no issue of this marriage. The Ex-Chancellor and first Lord Midleton died in 1728, at his country-seat, Ballyannan, county Cork.

The present Viscount Midleton is in holy orders, and was Dean of Exeter, He first married Lady Elizabeth Anne Brudenell, and this lady dying without issue, he married, secondly, his cousin, the Hon. Anne Brodrick, and has four sons and a daughter. The legal attainments of this eminent Lord Chancellor of Ireland are fairly represented by two of Lord Midleton’s sons, the Hon. William and the Hon. George Charles Brodrick. The former, his eldest son, is a barrister, called to the bar at Lincoln’s Inn in 1855, Master of Arts, Oxford, Deputy Lieutenant, and Justice of the Peace for Surrey, and represents Mid-Surrey in the House of Commons. His next brother, George, also called to the bar, is Master of Arts, Oxford, and Fellow of Merton College.

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