Life of Lord Lifford, concluded

Chapter XLIV.

Life of Lord Chancellor Lord Lifford, Concluded.

The low state of the Irish Exchequer in 1779 occasioned great anxiety to the Irish Executive. Lord Buckingham, then Viceroy, called a meeting of the Privy Council, consisting of the Chancellor, the Speaker of the House of Commons, Attorney-General, and other officials, and desired their opinion on the question, ‘Whether it is expedient to convene the Parliament of this kingdom before the usual time, for the purpose of providing a sum of money to answer the immediate exigencies of Government?’ These exigencies were to enable the troops to be encamped, and the country put in a proper state of defence, for which no means remained in the Treasury. The officials do not appear to have advised the meeting of Parliament, and, knowing how difficult it would be to raise any considerable sums in Ireland at that period, recommended his Excellency, ‘as a measure of the utmost consequence to the security of this kingdom, to endeavour to prevail upon the English Ministry to advance the requisite sum.’ [Grattan’s Life, by his son, vol. i. p. 376.]

Irish trade was much crippled by many English Acts of Parliament, enacted for the purpose of restraining Irish commerce. [These Acts were chiefly 12 Car. II. c. 18; 15 Car. II. c. 7; 22 Car. II. c. 26; 25 Car. II. c. 22; 7 and 8 Wm. III. c. 2; 4 Geo. II. c. 15; 5 Geo. II c. 9.] An attempt was made to have these Acts repealed by sending a list of them to the then Premier, Lord North, but he did not condescend to notice them in the Speech from the Throne. [Grattan’s Life, by his son, vol. i. p. 377.] This was the state of affairs when the members of the House of Commons resolved to strike a blow for Irish freedom. The history of the times gives a full detail of the patriotic measures, which is too ample for my limited space. An amendment to the Address from the Throne was resolved on, and Mr. Grattan prepared it; but, although a consummate speaker, he was not a ready writer. The address was shown to the Speaker, Mr. Pery, who made some alterations which Grattan at once acquiesced in and adopted. The House met on October 12, and though Mr. Yelverton, on the part of the Government, tried to prevent any amendment, Grattan was resolute to bring his forward. He proposed the amendment, which was seconded by Lord Westport. Mr. Bushe, Mr. Forbes, and Mr. Hussey Burgh spoke in its favour. Mr. Burgh was then Prime Serjeant, but said ‘he spoke his own sentiments, and those of the influential body he represented (the College); that he held a place under Government, but owed a duty to his country, and that he would always support her. He would require free trade.’ The Government party were beaten, and the amendment carried with only one dissentient.

The members little thought that the motion of Mr. Grattan had been revised by the Speaker. Many of the Government party said ‘it was a juvenile composition,’ and when the amendment was placed in the Speaker’s hands, and he saw his own writing, he could scarcely refrain from laughing. However he kept his countenance, and listened with the utmost gravity to the abuse heaped upon the ‘boyish’ composition! When the House broke up, Mr. Pery, the Speaker, Grattan, and Daly had a hearty laugh at the incident. [Grattan’s Life, by his son, vol. i. p. 389.]

The amended address was brought to the Viceroy at the Castle by the entire House. It was a glorious day for Dublin. The Irish Volunteers headed by the Lawyers’ Corps, lined the streets, under the command of the Duke of Leinster. They presented arms as the Speaker and members of the Commons passed along, and the cheering was often renewed. The Commons passed a vote of thanks to the Volunteers, ‘for their spirited and necessary exertions for the defence of their country;’ a similar compliment was paid by the Lords, despite the most strenuous opposition of the Lord Chancellor and Lord Chief Justice Lord Annaly. Though the Chancellor admitted the use of this corps for preserving the internal peace of the country, he spoke at great length on the illegality of raising such a force, and argued against giving them the vote of thanks.

Considerable excitement followed the success of Mr. Grattan’s motion. The Government was beaten in successive divisions. On a motion before the House as a Committee of Supply, ‘that the appropriated duties should be granted for six months only’ - the numbers were 138 to 100, the Government again in a minority. It was during this debate Prime Serjeant Hussey Burgh made the speech which produced such an electric effect upon his auditors that they rose *en masse *and cheered him again and again.

‘Talk not to me,’ he said, ‘of peace; Ireland is not in a state of peace; it is smothered war. England has sown her laws like dragon’s teeth, and they have sprung up armed men.’ This speech cost him his rank of Prime Serjeant.

While the affairs of Ireland were thus critical, the Lord Lieutenant was deprived of the advice and assistance of the Lord Chancellor, who was prevented from attending the deliberations of the Castle officials by his indisposition. [Letter from the Viceroy to Lord Weymouth in 1779. Grattan’s Life, by his son, vol. ii. p. 6.] As soon as the Chancellor was able to venture forth, he attended the meetings at the Castle, and was present when the opinion of the Government officials was taken as to the right of the Lord Lieutenant to propose and urge new taxes. The Chancellor and many others, including the chief Judges, Attorney and Solicitor-Generals, agreed that the Lord Lieutenant might exercise this right, the only dissentients being Mr. Foster [Foster is an honoured name in the political history of Ireland. He was well acquainted with finance and made an excellent Chancellor of the Exchequer in 1784. He was elected Speaker of the Irish House of Commons, as successor to Mr. Pery, in 1785. He was a decided anti-unionist.] and Mr. Burton, who thought ‘the not proposing new taxes would conciliate the minds** **of the people, who were unable to bear them.’ The moment this resolution of the Irish Government was known, when the House of Commons met,’ Mr. Grattan moved, *‘that at this time it would be inexpedient to grant new taxes.’ *He was opposed by the Crown officials, Sir Richard Heron [Chief Secretary for Ireland], the Attorney [John Scott], and Solicitor-Generals, [Hugh Carleton] Sir Henry Cavendish, and Mr. Mason, but on the division the question was carried in the affirmative - Ayes, 170; Noes, 49 - which showed conclusively the small number on whom the Government could rely.

The popular party were not slow in taking advantage of their power to obtain redress from the restrictions under which the independence of Ireland had been long placed. ‘The defeat and capture of Lord Cornwallis’ army in America added new strength to the men who legislated with an armed nation at their back. The Roman Catholic Relief Bill, to restore to the people the exercise of their religion, education, marriage, and self-defence, was introduced into the House of Commons by Mr. Gardiner. It was ably supported by many of the foremost politicians of the day. During this debate the name of a remarkable Irish priest was introduced, Father O’Leary. Grattan said he ‘could not hear the name of Father O’Leary mentioned without paying him that tribute of acknowledgment so justly due to his merit. At a time that this man lay under the censure of a law, which in his own country made him subject to transportation or death, from religious distinctions, at a time that a prince of his own religion threatened this country with invasion, this respectable character took up his pen unsolicited, and without a motive but that of real patriotism, to urge his own communion to a disposition of peace, and to support the law which had sentenced him to transportation. A man of learning, a philosopher, a Franciscan did the most eminent service to his ‘country in the hour of its greatest danger. He brought out a publication that would do honour to the most celebrated name. The whole kingdom must bear witness of its effect, by the reception they gave it. Poor in everything but genius and philosophy, he had no property at stake, no family to fear for; but descending from the contemplation of wisdom, and abandoning the ornaments of fancy, he humanely undertook the task of conveying duty and instruction to the lowest class of the people. If I did not know him to be a Christian clergyman, I should suppose him by his works to be a philosopher of the Augustan age.’ [Grattan’s Life, by his son, vol. ii. p. 199. Two Lives of Father O’Leary have been published. One by my late respected friend the Rev. T. England, the other very recently by Rev. Mr. Buckley, a very able work.]

Many anecdotes are related of Father O’Leary. One which my legal readers will appreciate is this. While he with Barry Yelverton, then Attorney-General, were on a visit to Lord Kenmare, a stag-hunt at Killarney was given in their honour. Near the close of the run the stag fell exhausted close to where the distinguished visitors were placed. ‘Ah, Yelverton,’ said Father O’Leary, ‘see how naturally the stag comes supplicating you in hopes you’ll enter a nolle prose qui.’

The political events which stirred the hearts of the Irish nation were only regarded by the Lord Chancellor as they affected the English interest in Ireland; and, as I shall have another opportunity of referring to the movement, which then went rapidly forward, I pass on to consider the changes affecting the equitable jurisdiction. The expense of prosecuting appeals at Westminster from the decisions of the Irish Courts had been a just subject of complaint to Irish litigants. It was regarded as tantamount to a denial of justice. Many relinquished their rights, unable or unwilling to bear the expenses of an appeal to the English House of Lords. The history of the famous cause of Sherlock *v. *Annesley [Vide ante, p. 15.] was familiar to Irish lawyers and politicians; and the enactment of 6th George I., securing the dependency of Ireland upon Great Britain, was regarded as a badge of inferiority not to be longer tolerated.

The question of restoring the appellate jurisdiction was brought before the Irish House of Commons by Mr. Grattan, on April 16, 1782, and supported by a very able Irish barrister, Mr. Fitz Gibbon, [Afterwards Lord Chancellor, Earl of Clare, vide Life, post, 156.] who, as Grattan observes, spoke well, and got credit for his speech. [Grattan’s Life, by his son, vol. ii. p. 257-266.] He declared that as the right of making laws for Ireland was in the King, Lords, and Commons of Ireland, this included the final judicature; and he hoped no individual would here after appeal from the Courts in Ireland to the British House of Lords. The speech of the Attorney-General was a singular one. His name was John Scott, and his general *sobriquet *was not complimentary - ‘copper-faced Jack.’ He and Fitz Gibbon had been marked out by the Chancellor for promotion, but were suspected by the sagacity of Fox, who bade the Viceroy take care he was not strengthening an enemy instead of rewarding a friend. Scott well knew that he was expected to serve the Government at the expense of his country, for when he accepted office from the Chancellor, he made the significant remark, ‘My Lord, you have spoiled a good patriot.’

But there were times when love of country proved superior to the blandishments of power, and this was one. He said, ‘Events had taken place since the last meeting of Parliament that made it indispensable in him to declare his opinion now. The bill proposed by Mr. Yelverton, supported by so many Members of distinguished ability and virtue, which he entirely approved of, had not yet been returned from England. The object of that bill was to secure property, and to confirm other material topics - the subject of the British laws; and, if that bill was returned, there could be no objection to declare that British laws were in future utterly inoperative; and, not being returned, people have thought England insists upon that idle, useless, and pernicious power; he thought it, therefore, better that the object of the British laws should be doomed to destruction, than that his country should be held in even a supposed state of absolute slavery; he therefore did as a lawyer, a1 faithful servant of the Crown, a well-wisher to both countries, and an honest Irishman; and in the most unqualified, unlimited, and explicit manner declared his opinion that Great Britain had no right whatever to bind this country by any law. If the tenure of his office was to be the supporting opinions and doctrines injurious to the undoubted rights of Ireland, he *held it to be an infamous tenure; *and if the Parliament of Great Britain were determined to be the Lords of Ireland, *he was determined not to be their *villain *in contributing to it. *‘I owe,’ he said, ‘the avowal of these sentiments to Great Britain, to my country, and to myself!’

We can imagine how the Lord Chancellor felt when this violent and resolute speech of his *protégé *was reported to him, and we cannot feel surprise after perusing this emanation from the first law officer of the Crown in Ireland, that the Viceroy, Duke of Portland, one of the most sagacious statesmen of his time, should have urged the most speedy and most liberal concession. At the close of a long letter, marked private and confidential, which his Excellency addressed to Mr. Fox, from Dublin Castle, April 28, 1782, we find these startling words:- ‘I cannot conclude this letter without expressing my most anxious wishes for a speedy and favourable determination. There is still *an appearance *of Government; but if you delay, or refuse to be liberal, Government cannot exist here in its present form; and the sooner you recal your Lieutenant, and renounce all claim to this country the better. But, on the contrary, if you can bring your minds to concede largely and handsomely, I am persuaded that you may make any use of this people, and of everything they are worth, that you can wish; and, in such a moment it will be happy for them that the Government of England shall be in hands that will not take undue advantage of their intoxication.

‘Ever most sincerely yours,

‘Portland.’

The Ministry and Parliament of England followed the prudent advice of the Viceroy, and the Act of 23 Geo. III. c. 28 was passed to prevent and remove all doubts which had arisen, or ‘might arise,’ as to the right of the British House of Lords to hear Appeals from the Irish Courts. The first section enacted, ‘That the said right claimed by the people of Ireland to be bound only by laws enacted by his Majesty and the Parliament of that kingdom, in all cases whatsoever, and to have all actions and suits at law, or in Equity, which may be instituted in that kingdom, decided by his Majesty’s Courts therein, finally and without appeal from thence, shall be, and it is hereby declared to be established and ascertained for ever, and shall at no time hereafter be questioned or questionable.’

Some doubts still lurking as to the sufficiency of this Act, Mr. Kenyon, afterwards the celebrated Lord Kenyon, and Mr. John Lee, then Attorney and Solicitor-General in England in 1782, were consulted by Mr. Fox, and united with him in opinion ‘that the simple repeal terminated British jurisdiction in Ireland,’ while the Irish Judges, together with Lords Camden and Erskine, Sir Arthur Pigott, and Sir Samuel Romilly, agreed with Mr. Grattan, Lord Charlemont, and Mr. Fox. Great alarm, was, however, felt in Ireland, when a Writ of Error to the Court; of King’s Bench at Westminster, from a judgment of the Court in Ireland, was, notwithstanding the Act recently passed, disposed of by Lord Mansfield. A letter from Lord Mornington [Afterwards Marquis of Wellesley, brother of the Duke of Wellington.] to Mr. Grattan calmed much of the anxiety naturally excited by what seemed to be a direct infraction of this Statute. Lord Mornington states ‘the case was, as I understand, entered for hearing before the time of the operation of the Irish Act, and was by some accident delayed until this last term. The reason why it was not dismissed when it came before the Court, subsequently to the operation of the Irish Act, was, that the time had elapsed for pleading against the competency of the Court, as pleadings had already begun upon the matter of the suit. The legal expression, I am told, is, that as these parties had already pleaded in chief, they could not afterwards plead to the writ. Now, at the time the cause was entered, the Irish Act had not passed; and, therefore, the objection to the competency of the Court did not exist at time only period when it could have been admitted consistently with the practice of the Court. I should observe that Lord Mansfield gave no sort of reason for his decision, but decided as a matter of course, without taking any notice of the particularity of the case.’ [Grattan’s Life, by his son, vol. iii. p. 36.]

Successive changes of Ministers in England and Viceroys of Ireland found Lord Lifford Chancellor, and left him holding the Great Seal. A long list the Lords Lieutenant make. I enumerate them: (1) Marquis of Townshend, [George Townshend, first Marquis Townshend, Viceroy - October 14, 1767.] succeeded by (2) Earl Hartcourt, [Simon Hartcourt, first Earl Hartcourt - November 30, 1772.] then came (3) the second Earl of Buckinghamshire, [John Hobart, second Earl of Buckinghamshire - January 25, 1777.], next (4) the fifth Earl of Carlisle, [Frederick Howard, fifth Earl of Carlisle - December 23, 1780.] then (5) the third Duke of Portland, [William Henry Cavendish Bentinck, third Duke of Portland - April 14, 1782.] after him (6) Earl Temple, subsequently the Marquis of Buckingham, [George Grenville Nugent Temple, second Earl Temple, and afterwards Marquis of Buckingham -September 15, 1782.] (7) the Earl of Northington, [Robert Henley, Earl of Northington

• June 3, 1783.] and (8) the fourth Duke of Rutland, [Charles Manners, fourth Duke of Rutland - October 24, 1784. He died while Viceroy in October 1787.] succeeded by (9) the Marquis of Buckingham, [The Marquis of Buckingham was a second time Viceroy - December 16 1787.] who was thus twice Viceroy of Ireland.

Many of these noblemen held office for a very short time.

The Irish Peers employed James Gandon to design some alterations in their House, which were commenced in the time of Lord Chancellor Lord Lifford, in 1785. The portico erected in Westmoreland Street is quite incongruous with the rest of the building - being Corinthian - while the remainder is of the Ionic order of architecture. A tourist, who noticed this variation, asked Gandon, who was visiting the works, what the order of the portico was, as it differed from the front. The architect’s witty reply was: ‘Sir, the order that you enquire about is a new but very important one, termed the Order of the House of Lords.’ The Houses of Parliament struck the Rev. John Wesley in 1787 as far exceeding the old House of Westminster, and the Throne in Dublin far finer than the miserable one for the King in the English House of Lords. ‘The House of Commons,’ he adds, ‘is a noble room, it is an octagon, wainscoted round with Irish oak, which shames all mahogany, and galleried all round for the convenience of the ladies.’

Owing to corrupt influence, the Chancellor was induced to disgrace the magistracy by the following direction:-

‘Let the Commission of the Peace for the County of Dublin be forthwith prepared in the usual form, wherein you are to insert Francis Higgins, of Abbeyland, in said County, Esq., to be of the Peace, with the usual powers, and present the same to pass the Great Seal; and for so doing this shall be your warrant. Dated at Dublin this 10th day of July, 1788.

‘Lifford.’

This Francis Higgins was a profligate parasite, who, by the most degrading acts, raised himself into wealth and position. Judge Robinson, when sentencing him to punishment for the perpetration of a base fraud by which he enticed an heiress to marry him, first called him the. *Sham Squire.’ *[The fullest account of this man is contained in the ‘Sham Squire and the Informers of 1798,’ and ‘Ireland before the Union,’ both works written by W. J. Fitzpatrick, Esq., J. P., and abounding with curious, interesting, and important details of that sad period in Ireland’s history.]

[Judge Robinson had been placed on the Bench for his services to the Government by writing some political pamphlets remarkable for their scurrility. He was no lawyer, and his brow-beating manner was well rebuked by the celebrated Curran, who in arguing a motion, dissented from the law as laid down by his Lordship. Their dialogue is thus reported:-

‘I do not find the law so stated in any book in my library,’ said Curran.

‘Your law library, I suspect, is rather contracted,’ replied the Judge in a sneering tone.

This roused Curran, who retorted with readiness.

‘My books may be few, but the title-pages give me the writers’ names; my shelf is not disgraced by any of such rank absurdity that their very authors are ashamed to own them.’

The Judge petulantly exclaimed, ‘If you say another word, Sir, I’ll commit you.’

‘Then, my Lord,’ replied the irrepressible Curran, ‘it will be the best thing you’ll have committed.’]

There was a great outcry, and very properly, at this exercise of the Chancellor’s authority. One of the most consistent and honest Dublin newspapers, from its birth until now the intrepid denouncer of wrong and assertor of right - the ‘Dublin Evening Post,’ thus exposed this scandalous appointment:- ‘Will not a day of retribution come for all this accumulation of villainy and enormity, at which the blood runs cold? Oh, that we had a Fitz Gibbon Judge! Then would no longer the Newgate felon, the murderer of wretched parents, the betrayer of virgin innocence, *sham *his fate and defy the laws of God and man.’ [‘Dublin Evening Post,’ No. 1767. The Sham Squire did not write J.P. after his name for any lengthened period. On November 21, 1791, the Lord Chancellor, Fitz Gibbon, directed a writ of Supersedeas to issue, which erased the name of Francis Higgins from the list of Justices of the Peace.]

Lord Lifford held the Great Seal of Ireland longer than any Chancellor since the time of Edward I. - twenty-two years - and, being in his eightieth year, he had intentions of resigning on a pension. He had amassed a very large fortune, and the emoluments of the office at his time were estimated at 12,000l. per annum.

On searching the Lords’ Journals during the time Lord Lifford was Lord Chancellor, I found repeated grants of large sums of money made to him in addition to his salary and customary allowance as Speaker :- These grants are usually stated ‘to mark the sense of the

House of the Lord Chancellor’s services and distinguished abilities.’ I do not find these grants voted to Lord Lifford’s successor.

  £

May 9, 1768 1,000

December 23, 1769 2,000

December 21m 1771 2,000

February 29, 1774 2,000

December 18, 1775 3,000

December 22, 1777 3,000

December 21, 1779 3,000

December 15, 1781 3,000

December 15, 1783 3,000

April 4, 1785 3,000

March 13, 1786 3,000

March 23, 1787 3,000

March 22, 1788 3,000

  £34,000

On April 23, 1789, he felt in such good health, that he gave a sumptuous entertainment to a large party at his house in Sackville Street; but a day or two afterwards he got a severe cold while attending the House of Lords. A malignant sore throat defied the efforts of his physicians, and on April 29, 1789, his Lordship died in Dublin in his eightieth year.

As we have seen that the early days of Lord Lifford were passed within the shadows of some of the most beautiful specimens of early ecclesiastical architecture in England, so his remains were interred in the beautiful old Cathedral of the Holy Trinity in Dublin, called Christ’s Church. Here, as in the church which at the outset of this memoir** **I have mentioned, the pointed arch, the lateral aisles, the groined ceilings, bespeak the master-hand of the builders. No way inferior to the grand old churches of Coventry is this fine old memorial of Catholic times in Ireland. According to tradition, St. Patrick said mass in one of the crypts, which is still called the Crypt of St. Patrick. It was afterwards selected by the Danes in Dublin as the site of their church, and in 1038 Donagh, Bishop of the Danes, built the nave and wings. Here St. Lawrence O’Toole was consecrated Archbishop of Dublin, and during the reign of Edward III. it received great additions. The interior is still in good preservation. The north side of the nave consists of six lofty and nobly-planned arches of the lancet shape, the piers consisting of richly-decorated pillars. With the love of variety, so remarkable in ancient church decoration, we find some of these clustering columns banded in two, others quite plain from base to the capital. The spirit and freedom displayed in the sculptured foliage in some of the columns, as also the sharpness of outline, is wonderful considering the hundreds of years which have elapsed since they were executed. A handsome monument is erected to the memory of Lord Lifford, bearing his titles and appropriate motto-

Be just and fear not.

In the Diary of Scott [Chief Justice of the King’s Bench, Earl of Clonmel. Vide ‘Ireland before the Union,’ by W. J. Fitzpatrick, p. 30.] he gave some notices of Lord Lifford worth recording here. Under the heading, *‘Be always an actor,’ *we read - ‘A man who would establish a great character with the world must be a constant actor; and the best rule to adopt for that purpose is to consider every dress you put on, every time you change cloaks, every change of company or situation, as a new scene in which you have a part to act for praise. Siddons is as great a model as ever I saw on the stage. Mr. Burgh, Ch. Baron, Mr. Pery and L. Lifford the best off the stage. Lord Chatham, Cromwell and Provost Hutchinson were great actors.’ Again, ‘Never give offence to any man, he will have power to resent. Almost the only thing by way of observation I ever heard Lord Lifford say worth remembering, though he was one of the wisest practitioners with the world I ever knew, was upon the subject of moderation, which is a branch of temper, i.e. dissimulation, of which he was a great master, “For such a government as ours,” said he, “there is scarcely any individual so obscure but may be one time or other sufficiently connected with power to do any man mischief; no man should, therefore, give offence; no man is fit for great affairs who has not a total mastery of his temper.” N.B. - Fear was the prudence of his life, caution his shield, and temper his fort.’

Lord Lifford is the first Lord Chancellor of Ireland whose judgments have been preserved. Of these many are unpublished, and one volume is printed. This is entitled ‘Reports of Select Cases argued and determined in the High Court of Chancery in Ireland, principally in the time of Lord Lifford.’ Though these decisions range from 1767 to 1786, they were unknown to the profession until published by the enterprising Irish publishers, Hodges and Smith, in 1839. They had been reported by an experienced member of the Irish Bar, Mr. Wallis, who gave them to Mr. Lyne, also a barrister. This gentleman undertook to condense and prepare them for publication; finding the task troublesome, he presented them to a relative of the Reporter, Mr. Alexander, a member of the English Bar. He also neglecting to publish them, James Lyne, Esq., son of the gentleman of that name already mentioned, procured them from Mr. Alexander, and carefully examined the manuscripts. A large portion related to the construction of the No Popery laws, now, thank God! obsolete. Those published present features of interest and importance. The period was not supposed productive of men capable of close and argumentative reasoning, for it was during the brief but brilliant epoch of Irish independence. These reports contradict this belief. They show a greater degree of legal learning, and acquaintance with, and reference to, the authority of decided cases, than the bar of Ireland at the time got credit for. The men whose fervid eloquence blazed in the Senate at night cooled down in the morning to discuss legal points. The arguments of Counsel and the decisions of the able and distinguished Judge who for over twenty years presided as Lord Chancellor of Ireland are the best monuments of the profession we could have. As specimens of the way his Lordship disposed of cases, I subjoin a few reported by Mr. Wallis:- In Williams *v. *Hopkins, [Wallis, Rep. by Lyne, p. 285. The condition of ‘having children’ when in the will there was a bequest to the parent, was held satisfied by issue being born, though dying during the parents’ life time. Vide Weakly v. Rugg, 7 T. R. 322.

Also on the same question, Wall *v. *Tomlinson. 16 Ves. 413.] decided in 1777, the Lord Chancellor held a devise of real and personal property to testator’s unborn child, and in case of its death under age, to be equally divided between the children, male and female, of testator’s two married daughters, Letetia Williams and Elenor Hopkins, when they should arrive at their respective ages; the interest of that part to the children of Elenor during such minority to go to her, Elenor’s sole use; and in case she should not have children, such share to go to the children of Letetia at the death of the posthumous child. Elenor had no children, and the posthumous child having died, upon Bill filed the Chancellor decreed a moiety of the testator’s effects to be for the benefit of Elenor’s children, if such she should have, and meantime she should have the interest and produce, and on her death without issue, that moiety to go to her sister’s children.

In Murray *v. *Bateman, Lady Rosse his wife, and others, [Wallis, Rep. by Lyne, p. 181. At p. 203 Mr. Wallis says, ‘This decree was afterwards reversed by the Lords. Some of the law Lords did not approve of relieving tenants who did not comply with their renewal covenants, and the decision created such alarm in Ireland that they procured the Act 19 and 20 Geo. III. Ir. c. 30, the Tenantry Act, which passed the Lords by the narrow majority of *one. *A note of the argument on the Appeal is reported in 1 Ridg. P. C. 198. Lord Redesdale shows very satisfactorily that the reason why Lord Lifford’s judgment in Murray *v. *Bateman was reversed was not upon laches of the tenant but on account of fraud and wilful concealment - See 2 Scho. and Lef. 687.] where a tenant for three lives, with covenant for perpetual renewal on payment of a fine within three months from the fall of any life, had not applied for a renewal until the fall of the last life in the lease; upon Bill filed to compel a renewal on refusal to grant same or accept the renewal fines tendered, Lord Chancellor Lifford held, after very full argument, that the plaintiff was entitled to a renewal of his lease pursuant to the covenant upon payment of renewal fines, according to the septennial calculation.

The rights of married women to dispose of property by will came before the Lord Chancellor, in White *v. *Dillon, decided in 1788. [Wallis, Rep. by Lyne, p. 302.] On a separation between husband and wife, a deed was executed conveying the wife’s marriage portion, with other property, to trustees, for her sole and separate use, to pay rents, and produce to her, her executors, administrators, and assigns, for her and their separate use. The wife subsequently was allowed an interest in some houses, which were bequeathed to trustees to the sole and separate use of the wife, and to be disposed by her as if sole. By will she left her husband five shillings, and her separate property to her relations. On her executor seeking probate, the husband contested the grant, and therefore submitted to the jurisdiction of the Court; finding the Judge of the Prerogative against him, and in favour of the will, the husband applied to the Lord Chancellor for a writ of prohibition. The case was argued by the Attorney-General, John Scott, for the executor, and Mr. Yelverton for Mr. White, the husband of the deceased lady. In the Chancellor’s judgment the law was thus clearly stated: ‘A married woman is by her coverture disabled from making a will. She is not * sui juris, *but under the control and power of another; by her marriage she ceases to have any dominion over her former property, which is transferred to the husband by the marriage, and she therefore cannot have a right to dispose of things over which she has not any power. The husband then, having the power over the wife’s goods equally with his own (for he may dispose of the chattels and recover her choses in action), may dispose thereof at his pleasure; and when he absolutely assigns them to trustees for the wife, he ceases to have any further dominion over them. After separation, a wife is in many respects *sui juris, *and the separation is a consent and allowance by the husband of the wife’s sole acts in consequence of such separation; so that both reasons against the *ferns covert *making a will cease in case of separations. And though any disposition of hers by testament may not be thereby called a will, yet it, in fact, is a will, and operates in every respect as such; and there is no solid difference between a will and a testamentary writing or schedule. Exclusive of this, the party now applying for the Prohibition has fully admitted the jurisdiction of the Ecclesiastical Court, and submitted thereto by allowing the cause to proceed to a final hearing without any objection; [See the law held in Fettyplace *v. *Gorges, 1 Ves. Jun. 46; Rich *v. *Cockell, 9 Ves. 369; Sturges v. Corp, 13 Ves. 190.] although he must have been earlier apprised of the legal right now insisted on by him, if any he had. [For disputing jurisdiction after proceedings. See Anon, 1 Vern. 301; 2 T. R. 475.] Prohibition refused.’ [The decisions of Lord Chancellor Lifford in print are contained in the work from which these cases are cited. A very elaborate judgment in Rochfort *v. *Lord Ely is contained in Appendix to Ridgeways, P.C. vol. i. p. 528. Also his judgment in same cause, id. p. 551. There are, I am informed by my friend John Adair, Esq., of the Irish Bar, many unpublished and unprinted cases argued before his Lordship in MSS., which were presented by Mr. Adair to the present Lord Lifford.]

Chancellors Index. Chancellors 45. Home.