Life of Lord Chancellor West

Chapter XXXVIII.

Life of Lord Chancellor West

I have found considerable difficulty in tracing the life of Lord Chancellor West from the many meagre records of him that I have had access to. I believe he was of the family of West of Braywick Lodge, county of Berks, These Wests held a distinguished place in the naval and military annals of the empire. My reason for assigning him to this family arises from a passage referring to Lord Chancellor West in Mr. Smyth’s work on the ‘Law Officers of Ireland,’ wherein he speaks of him as ‘a man of considerable legal talent and unexceptionable personal character; whose name has been rendered still more respectable by the classic genius of one relation and the naval merit of another,’ Now in the valuable ‘Dictionary of the Landed Gentry,’ compiled by my friend, Sir Bernard Burke, I find in the account of West of Braywick Lodge, Gilbert West, a poet, who died in 1756, and no less than three Admirals of the family, viz. Temple West, Vice-Admiral of the White and Lord of the Admiralty, his son Thomas, Admiral of the Royal Navy, and the late Sir John West, G.C.B., also an Admiral.

Richard West was born about the year 1670; and, from the high position he subsequently attained, may fairly be stated to have received an excellent education. He was called to the bar in 1697, but does not appear to have attained any great practice. That he moved in a respectable social sphere is evident from the intimacy on which he lived with persons of distinction, and from his having married one of the daughters of the Right Rev. Dr. Burnet, Bishop of Salisbury, a Prelate well known in the literary world. Richard West also resolved to be known as an author. He wrote some political pamphlets which attracted much notice, and gave him strong claims to Government patronage.

When Sir Robert Walpole became First Lord of the Treasury, on the resignation of the Earl of Sunderland, April 2, 1721, Mr. West felt secure of a good place. Some years later the high office of Lord Chancellor of Ireland being vacant, Mr. West lost no time in having his pretensions brought under the consideration of his Majesty’s Ministers.

When Lord Midleton relinquished the office of Lord Chancellor of Ireland, in May 1725, the Lord Chief Justice of the Common Pleas in Ireland, Whitshed, pressed his right to the Great Seal with much force. He claimed it on the score of Parliamentary and Judicial services, but the Government dare not elevate to the Speakership of the Irish House of Lords, and the office of Lord High Chancellor of Ireland, a man who was so odious in the kingdom as Chief Justice Whitshed. The Ministry looked out for a successor in England for the vacant place; and Mr. West, the author of some timely pamphlets, was so strongly recommended that he received the appointment. [Privy Seal, St. James’s, May 29, 1725. Patent, Dublin, July 23, 1725. 11th Geo. I. 2 pars. d. R. 48.] On September 7, 1725, the Irish Parliament met, and the Right Hon. Richard West, Esq., Lord High Chancellor of Ireland, took his place as Speaker in the House of Peers, being attended from without the Bar by the Gentleman Usher of the Black Rod, and Ulster King-of-Arms, in his Coat-of-Arms, carried his Lordship’s patent, appointing him Lord High Chancellor of Ireland, His writ of summons was read, after which he subscribed the usual Declaration and Oath of Abjuration; and then took his place on the woolsack. In this Session a very useful regulation was made respecting the attendance of the Judges. Previously the attendance of all the Judges upon the Peers was required; it was then ordered that the House should, until further order, dispense with the daily attendance of all the Judges; and only two were required to attend the service of the House.[Lords’ Jour. Vol. i. p. 805.]

Shortly after the Chancellor’s arrival in Dublin, the popular excitement respecting Wood’s patent, to which I have adverted in the Life of Lord Chancellor Lord Midleton, was allayed. On September 21, 1725, the Viceroy, John Lord Carteret, made a speech to both Houses of Parliament, as follows:-

‘My Lords and Gentlemen,

‘I have his Majesty’s con commands, at the opening of this Session, to acquaint you that an entire end is put to the patent, formerly granted to Mr. Wood, for the coining copper half-pence and farthings for this kingdom. by a full and effectual surrender thereof to his Majesty, an exemplification of which, under the Great Seal of Great Britain, shall be laid before you. So remarkable an instance of his Majesty’s royal favour and condescension must fill the hearts of a loyal and obedient people with the highest sense of duty and gratitude. And. I doubt not but you will make such suitable returns as may convince the world that you are .truly sensible of the happiness you have enjoyed under his Majesty’s most mild and gracious Government ever since his accession to the throne of these kingdoms; and that the preservation of all our religious and civil rights must be ever owing, under God, to the support of his Majesty’s Government and the succession in his royal House.’ [Lords’ Jour. Ir. vol. i. p. 808.]

As at this period the great bulk of the Irish people had no rights, either civil or religious, recognised by law, we cannot but feel amazed at the assumption of this speech, and, lest they should imagine their fidelity to the Catholic religion would pass unnoticed, the following paragraph, offensive and aggressive, denoted the danger of professing that creed:-

‘You will likewise think of some law which may be proper for the transportation of felons. I likewise recommend it to you, to consider of the best methods for securing us from the mischiefs which may be reasonably apprehended from the numbers of Popish priests and Regulars, which daily increase. As all Protestants of this kingdom can have but one common interest, and have too often fatally experienced that they have the same common enemy, there ought to be the strictest union amongst us, and a good temper and unanimity in your proceedings will not only contribute to the quiet and happiness of the kingdom, but will be the greatest instance you can give of your loyalty and affection to his Majesty’s sacred person and Government. [Lords’ Jour. Ir. vol. i. p. 809.]

The time of the Lords, for a considerable portion of this session, was occupied in the case of a complaint against Mr. Joseph Nagle for practising as a Counsel or solicitor, he being a Papist. The evidence, which consisted of various acts of Mr. Nagle, more in the character of an agent for others than on his own responsibility, induced their Lordships to order him to be prosecuted by the Attorney-General for acting as a solicitor, agent, or manager of causes in several of his Majesty’s courts, contrary to the several Acts of Parliament made in this Kingdom to prevent Papists being solicitors.’ [The importance of excluding Catholics from the profession of attorney was provided for by 7 Geo. II. c. 5, which enacts ‘That the laws in force against Popish solicitors have been found ineffectual by reason of the difficulty of convicting such solicitors, and the mischief thereby intended to be remedied still remains, to the great prejudice of the Protestant interest in this Kingdom, for remedy whereof, and for preventing obscure and ignorant persons from practising as attorneys or solicitors, it was enacted that no person should practise without a license, and this was to be obtained on the production of an affidavit of service of apprenticeship to certain classes of persons, including attornies and solicitors in England.’

Lords’ Jour. Jr. vol. i. p. 837.]

The right of printing the proceedings on the Irish Parliament was jealously watched, and any person violating the order of the Lords, ‘That no person should print except such as was appointed by the Clerk of the House,’ exposed such offender to punishment.

A complaint being made to the House of Lords that Thomas Hume had printed the foregoing speech of the Lord-Lieutenant, in a paper called ‘The Dublin Courant,’ contrary to the order of this House and the privilege thereof, Hume was ordered to be taken into custody, which being done he petitioned the House, setting forth ‘that he did so in ignorance, expressed his contrition, pleaded poverty and ill-health, and prayed to be enlarged.’ He was brought to the bar, and reprimanded by the Lord Chancellor before he was set at liberty.

The King’s printer, Mr. Andrew Crooke, also incurred the censure of the House of Lords. He was reprimanded at the bar, 7th March, 1725, for his delay in publishing the public Acts of Parliament, and printing them on bad paper. [Lords’ Jour. Ir. vol. i. p. 854.]

A peculiar and happily now obsolete source of litigation was introduced into the Irish Courts of Equity by the No Popery laws, and had to be administered by Lord Chancellor West. By Statute 9 William III., c. 28, any Protestant woman, unmarried, having real estate or personal property, either in money, stock, plate, jewels, or other chattels, in law or equity, to the value of 500l., marrying without a certificate that her husband was a Protestant, she and her husband were declared incapable of enjoying such property, and the next Protestant kin should enjoy the same. Bills of Discovery were the means of suing for these statutable estates; various points arising out of this right of filing bills may be seen in Mr. Howard’s law books. [Vide Equity side of the Exchequer, vol. ii. p. 243. Bills of Discovery were also filed to discover the contents of documents; they are not in such general use now as before the passing of the Common Law Procedure Amendment Act (Ireland) 1853, sect. 54 of which enacts ‘That any party relying on any document in his pleading, shall produce same upon trial or argument, unless its non-production be satisfactorily excused, or in default thereof shall be excluded from the benefit of such document, with power to the judge to make the order therein prescribed.’] By Statute 1st Anne, c. 2, Papists not taking certain oaths were incapable of inheriting states or purchasing lands, By Statute 6th Anne, c. 6. Papists could only purchase lands, &c., for a term of thirty-one years.

By 8th Anne, c. 3, additional Bills of Discovery were permitted, and any Protestant might prefer one or more bills in Chancery against any person concerned in sales or incumbrances of trust property, held in trust for Papists, to compel such persons to discover and detect such trusts, and answer all matters relating thereto. And all issues in any suit founded on this Act shall be tried by none but known Protestants.

An affidavit was required to be filed with such Bills of Discovery, stating that the plaintiff was a Protestant, and did not file the bill in trust for a Papist, or any person professing the Popish religion.

Lord Chancellor West held that in a suit for a forfeiture, under these penal statutes, 9th William III., and 2nd Anne, c. 6, there must be a conviction before any forfeiture was incurred. [This was also held in the cases of Bebe *v. *O’Neil, and Dobbina *v. *Purcell, cited in Howard’s Treatise on the Equity Exchequer.]

In the case of Leymore v. Bourke, in Chancery, the Lord Chancellor decided ‘That the Protestant who married a Papist was incapable of being a Protestant discoverer; nay more, that this Protestant who marries a Popish wife is a more odious Papist than a real and actual Papist in profession and principle; and that the Acts against the growth of Popery, expressing * every Papist or person professing the Popish religion, *&c., take in and regard *constructive, *as well as *actual, *Papists. [Howard’s Equity Exchequer, vol. i. p. 261.]

Several of the cases in print show these unhappy laws produced very demoralising effects. For instance, the case of --- v. Woodley, where a Protestant, who had become a trustee for a Papist, was himself admitted to be a good discoverer against the estate, on the ground ‘that as the trust was illegal, it remained by Statute 8th Anne, c. 2, for the benefit of * any *Protestant discoverer,’ [Ibid. p. 265.] Fortunately for the credit of human nature, such cases are not very numerous. On the contrary, in many cases, Roman Catholics owe their estates to the friendship and devotion of Protestant friends, who, unlike the case cited, remained faithful to their charge.

Lord Chancellor West’s tenure of the Irish Great Seal was of little more than a year’s duration. He was taken very unwell in November, 1726, with a feverish cold, which, it was thought, was giving way to medical treatment; but, after twelve days’ illness, he died on December 3. Primate Boulter, in a letter to Lord Carteret, thus speaks of the estimable qualities of the deceased Lord Chancellor:- ‘His death is much lamented here by all; but especially by the lawyers, whose good will and esteem he had entirely gained by his patience, civility, and great abilities. As he was an old friend and acquaintance of mine, I am very much troubled at this loss, as well as I am heartily concerned for the terrible blow it is to his family. I earnestly wish his place may be filled by one that may give the same satisfaction he has given.

‘I take it for granted his successor will be an Englishman; but I cannot help suggesting that I am sure it would be of service, and especially against the next session of Parliament, if either the Lord Chief Justice Windham, or Lord Chief Baron Dalton, were advanced to that station, and their vacant places supplied here from England. They have both established a very good character here, and are well skilled in the affairs of Ireland, beyond what a new comer can hope for under a year at least; and I think such a promotion would be encouragement to a person of some worth to come over in one of their places, when they saw it was a step to the highest post in this country.’ [Boulter’s Letters, vol. i. p. 85.] As the Lord Chancellor’s death, so soon after his appointment, left his family slenderly provided for, and he was in debt, Lord Carteret, the Lord-Lieutenant, induced King George I. to settle a pension upon his widow, and. it continued to be paid for a great many years. [Boulter’s Letters, p. 117.]

Lord Carteret (Lord Lieutenant of Ireland from 1724 to 1731) was a nobleman of high personal and political character. He was descended from the distinguished families of Carteret and Granville -the latter title so worthily borne in our day by the noble Earl, whose worth is recognised by the esteem alike of Sovereign and subject. The Lord-Lieutenant was educated in the halls of Oxford University; and as Swift, in his usual sarcastic way, narrates, ‘from whence, with a singularity scarce to be justified, he carried, away more Greek, Latin, and philosophy, than properly became a person of his rank; indeed, much more of each than most of those who are forced to live by their learning will be at the unnecessary pains to load their minds with.’ [Swift’s Works, vol. iii. P. 181.]

By the death of George I., in June, 1727, the annuity granted to Mrs. West dropped, and great commiseration was felt for her and her daughter. It appeared, by her marriage settlement, the only provision made for her during the life of old Mr. West, father of the late Lord Chancellor, was 250l. per annum; and, on his dying intestate, a case was submitted to eminent lawyers, both in England and Ireland, as to her rights. Their opinion was, that neither she nor her daughter would be entitled to any part of old Mr. West’s real or personal estate. It was taken for granted in drawing the settlement, that Mr. West, the father, would die before his son. The event having been different from what was anticipated, caused her friends to exert themselves to have the annuity continued; and as Mrs. West was daughter of Dr. Burnet, Bishop of Salisbury, her friends induced the King to renew the annuity his father, King George I., had settled on Mrs. and Miss West. [Ibid. p. 149.]

There were many eminent men at the Irish Bar at this period who could ably have supplied the place of the Chancellor, had not the fact of Irish birth then offered an insurmountable barrier. One of the greatest lawyers of his time was Richard Malone, of Baronstown County, Westmeath. He was born in 1674, and while a student in Trinity College, Dublin, stored his mind with the solid learning imparted in that distinguished College, and acquired the facility of public speaking, which made him renowned at the Irish Bar. It was said that he was only rivalled by his own son, Anthony Malone. While a law-student in the Temple, Richard Malone was employed by the Government, through the influence of a friend of his youth, Ruvigny, Lord Galway, as negotiator in Holland, and he acquitted himself so well as to merit the approbation of King William III., who gave him substantial proof of his goodwill.

He was called to the Bar in the year 1700, and soon impressed that quick-witted profession, the attorneys, that he was better versed in the law of the land than most of his contemporaries. The result was he had as much business as he could attend to. I have mentioned him in the life of Lord Chancellor Lord Midleton, to whose conduct as Chancellor he bore favourable testimony.

Another distinguished Irish practitioner was Dr. Marmaduke Coghill, Judge of the Prerogative Court, who, having to give judgment in a petition for divorce on the ground of cruelty, held ‘that moderate chastisement with a slender switch was within the husband’s matrimonial privilege.’ This decision, it is said, so alarmed a lady to whom he was about to be married, that she instantly broke off the match. [Dr. Coghill died unmarried in 1738. His niece and heiress, Hester, became Countess of Charleville. On her death, this lady’s property passed to her cousin, John Cramer, who assumed the name of Coghill, and was created a baronet in 1778. His son, Sir Josiah Coghill, Vice Admiral, married the eldest daughter of Chief Justice Bushe, and their son is the present baronet, who is endowed with great intellectual qualities.]

I am indebted to an old ballad for an account of the Irish bar at this period, 1725. It runs thus:- **

The Irish Bar **

There’s Harley,1 the neat,

Who in primitive state,

Was ne’er for a drudge designed, Sir;

Your French gibberish2 he

Takes great nonsense to be,

And is one of your sages refined, Sir.

There’s Jocelyn3 next comes,

Who in very loud hums,

Which makes him not very concise,

Sir; With a finger and thumb

He strikes one judge dumb,

Who suspends till he asks his advice, Sir.

There’s Prime Serjeant4 grand,

Who puts all to a stand,

With his jostle and shove to arise, Sir;

He lays down the law,

With as haughty a paw,

As if he were judge of Assize, Sir,

There’s Bowes,5 a great beau,

That here makes a show,

And thinks all about him are fools, Sir;

He winks and he speaks,

His brief and fee takes,

And quotes for it English rules, Sir.

There’s the rest of the wise,

That have no way to rise,

But a short sleeve and seat within table;

They stop up the way,

Tho’ they’ve nothing to say,

And are just like the dog in the fable.

There’s old Dick Malone,6

Tho’ in barrister’s gown,

Talks reason and law with a grace, Sir;

Yet without bar he stays,

Tho’ he’s merit to raise;

But converts ne’er change their first place, Sir,

There’s Anthony7 too,

Without father can’t do,

Tho’ Knight of the Shire he’s chosen;

For dad takes more pains,

When his family gains,

And Toney the pleadings do open.

There’s ministers great crack,8

Who in faith has a knack,

To puzzle and perplex the matter;

He’ll insist on’t for law,

Without the least flaw,

Tho’ a good cause he ne’er made better.

Then there’s Peter Daly,

Who argues so gayly,

In sound law and equity’s clear, Sir;

By the court he’s not loved,

Yet he spares not aword,

For he knows ‘tis their duty to hear, Sir,

There’s Carew and Blake,

There’s Corlan the great,

And Bourke9 from the Irish line, Sir,

Now Coke, without doubt,

Would select. these four out,

To count and levy a fine, Sir.

There’s many more lads,

Who, faith, if their dads

Did but hear ‘em on Popish Acts prate, Sir,

Talk of ‘criminal Papists,’

As if they were Atheists,

They would say they were turncoats of State, Sir.

There’s the rest of the pack,

With the gown on their back,

From one Court to other they wander,

One biting his nails,

Or at the judge rails,

And swear he commits a great blunder.10

Harley occupied a very high position at the Irish Bar, and subsequently on the Irish Bench. He was Chief Baron of the Exchequer, and on the death of Rogerson, Chief Justice of the King’s Bench, appointed his successor in 1741.
Norman French, for centuries the language of law pleadings.
Robert Jocelyn, afterwards Lord Newport and Viscount Jocelyn, Lord Chancellor of Ireland. See Life.
Henry Singleton, afterwards Chief Justice of the Common Pleas and Master of the Rolls.
John Bowes. He filled every rank of the Bar, Serjeant, Solicitor-General, and Attorney-General, and was successively Chief Baron of the Exchequer and Lord Chancellor. See Life. He first came to Ireland with Lord Chancellor West.
Richard Malone, already mentioned. He was an able Equity lawyer, called to the Irish Bar in 1700. It may be inferred from the poem that he was not honoured with the silk gown of a King’s Counsel, and that he changed his religion.
Anthony Malone, son of Richard Malone, and Member for the County of Westmeath in the Irish Parliament. He was called to the Irish Bar in 1726, and soon got into great practice. The poet slyly insinuates that the son would not willingly be employed without his father’s being retained on the same side, and that Richard Malone worked better while Anthony was his junior. Anthony Malone became Prime Serjeant in 1742, and while Chancellor of the Exchequer, in 1753, disposed of the Court business in such masterly style that there were no appeals from his judgments.
This probably refers to Richard Bettesworth, a dull Serjeant. a great supporter of Government, whom Swift has immortalised -

Now at the Bar see booby Bettesworth,

While half-a-crown o’er pays his sweats-worth,

Who knows of law, nor text, nor margent,

Calls Singleton his brother Seijeant.

The family of Bourke, or Burke, is always well represented at the Irish Bar. A contemporary Oliver J. Burke, Barrister-at-Law, has recently contributed a series of papers to the Dublin University Magazine, on the ‘Chancellors of Ireland,’ which display great research and persevering industry.
The unknown writer of this poem was evidently a member of the Bar, and shows a keen appreciation of the characters he describes.

The Hall of the old Four Courts in Christ Church Place, Dublin, was oblong, and rather a gallery than a hall, entered from a lane bearing the ominous name of Hell, which was remarked on by an Irish tourist as follows:- ‘This was certainly a very profane and unseemly sobriquet to give to a place that adjoined a Cathedral, whose name was Christ Church; and my young mind, when I first entered there, was struck with its unseemliness. Yes, and more especially when over the arched entrance there was pointed out to me the very image of the devil, carved in oak, and not unlike one of those hideous black figures hung over tobacconists’ shops. This locale of *Hell, *and this representation of his Satanic Majesty, were famous in those days even beyond the walls of Dublin. I remember well on returning to my native town, after my first visit to Dublin, being asked by all my playfellows had I been in *Hell, *and had I seen the devil. Its very name reached Scotland, and Burns, the poet, in his story of “Death and Dr. Hornbook,” alludes to it when he says,

But this that I am gaun to tell,

Which lately on a night befell,

Is just as true. as the Deil’s in Hell,

Or Dublin city.’

In this locality solicitors and barristers had chambers and offices. Advertisements frequently and seriously appeared, ‘To be let, furnished, Apartments in Hell. They are well suited for a lawyer.’ Here in olden times, the wits and celebrities of the Irish Bar - Prime Serjeant Malone, Philip Tisdall, Sir Toby Butler - cracked their jokes, quaffed their claret, and discussed their points of law, as their successors now do in their clubs and coteries. [Gilbert’s History of Dublin, vol. i. p. 144.]

Passing from the narrow passage leading to the old Four Courts, the suitor entered the long and narrow hail, crowned by an octangular cupola. To the immediate left of the entrance door were the steps leading to the Court of Exchequer, on the right was the Court of Chancery, next was the Common Pleas Court, and opposite to the Exchequer was the Court of King’s Bench. On the sitting days of the Lord Chancellor, he was always preceded by his macebearer and tipstaffs; the latter on entering the hall, called aloud, * ‘High Court of Chancery,’ *which was repeated by the tipstaffs in the other Courts, upon which the Judges rose, and remained standing until the Lord Chancellor had taken his seat.

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