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THE LIFE AND CORRESPONDENCE
LORD CHANCELLOR HARDWICKE
IN THREE VOLUMES
Works by the same Author:
Letters of Princess Elizabeth of England,
Daughter of George III and Landgravine of
Hesse-Homburg, written for the most part to
Miss Louisa Swinburne. T. Fisher Unwin,
A Note-Book of French Literature, 2 vols.
Blackie & Son, igor, 1904
^-rcnii (I be r( rent l>y ^ . S/LiccLi(rrv
THE LIFE AND CORRESPONDENCE
EARL OF HARDWICKE
LORD HIGH CHANCELLOR OF
GREAT . BRITAIN
PHILIP C. YORKE, M.A. Oxon.,
Licencie-es-Lettres of the University of Paris
And a man shall be as an hiding-place from the wind, and a covert from
the tempest; as rivers of water in a dry place, as the shadow of a great rock
in a weary land. Isaiah xxxii. 2.
O could I flow like thee, and make thy stream
My great example, as it is my theme ;
Though deep, yet clear ; though gentle, yet not dull ;
Strong without rage, without o'erflowing full.
Den HAM, Cooper's Hill.
at the University Press
CAMBRIDGE UNIVERSITY PRESS
ILonUon: FETTER LANE, E.G.
C. F. CLAY, Manager
eEUinburgt) : loo, PRINCES STREET
Berlin: A. ASHER AND CO.
ILnpjis: E- A. BROCKHAUS
Crijicaao: THE CHICAGO UNIVERSITY PRESS
tJombao anD ffntcutta: MACMILLAN AND CO., Ltd.
All 7-tghts reserved
IT may be convenient to preface the present account of the
life of Lord Chancellor Hardwicke with a mention of those
biographies which have preceded it.
It is much to be deplored that his two eldest sons made no |
attempt to record their Father's great career. They were well
qualified for the task. The second Earl of Hardwicke was a
person of ability in letters and of historical insight and knowledge,
and of sound political judgment. He had shared his Father's
confidence, and was well instructed and informed regarding the
political events and secrets of the time ; he knew the part which
his Father had taken in them and the motives and aims of his
conduct. He could have recorded for us, as he has done in his
sketch of Sir Robert Walpole, those personal touches and details
which are now wanting. These qualifications were possessed
equally by his brother, Charles Yorke, who, moreover, as one of
the most learned and the most literary lawyers of the day, one
who was actually succeeding his Father in his various offices and
who had frequently practised in his court, would have been capable,
as no one else can ever be, of describing his judicial methods and
the nature of the great developements in equity inaugurated by
him. In some ways, however, we have now better means for eluci-
dating the facts and better material for forming a right judgment
than they had. We have a vast mass of contemporary narrative
and correspondence that was denied to them ; while the real nature
and results of the statesmanship of those times, and the genius
and character of the chief actors, appear much more clearly than
in their own day. Moreover, we are able to take a wider view and
consider things in a juster proportion than was possible for them.
The result, however, has been that scarcely any great figure
in history has been handed down to posterity so falsified and
misrepresented, or presented in so mean a shape.
Lord Campbell was the first, in 1846, to publish a Life of
Lord Chancellor Hardwicke. Here was a great opportunity for
the production of a biography worthy of the subject. Lord
Campbell followed Lord Hardwicke in his great offices of Lord
Chief Justice and Lord Chancellor. He had considerable literary
abilities. He was engaged in a great and ambitious undertaking,
no less than the series of the lives of the Lord Chancellors, for
looo years, from the earliest times to his own ; and in this we
I should expect to find the life of Lord Hardwicke, perhaps the
greatest of them all, together with his period, the golden age of
equity, treated as the crowning glory of the work. It is well
known how greatly the anticipations and hopes formed of Lord
Campbell's biographies were disappointed. There is probably
no book of modern times of equal pretensions that contains so
many and such gross errors, and so many base and baseless
innuendoes. But of the whole bad series, the life of Lord
Hardwicke appears to be the worst. Here are to be found not
only the common mistakes of ignorance or negligence, not only
the common errors of judgment, but a deliberate picking and
choosing amongst falsehoods to which it is astonishing that the
author could have condescended. Throughout no one could
suppose the narrative to be that of a distinguished judge, trained
to weigh evidence and to administer justice and equity, zealous
for the honour of his profession and offering to the public the
portrait of his greatest predecessor. The consequences have been
deplorable. Lord Campbell's work continues to be widely read ;
new editions continue to be published, and a number of later
writers, misled perhaps by Lord Campbell's great name, continue
to copy from his untruthful pages and carry further the false
traditions there established. For example, the writer of the
most recent account of Lord Hardwicke, that in the last edition
of the Eiicyclopcsdia Britannica, has been content to found his
article on the same worthless " high " authority, although in the
1 same publication, in the article on Lord Campbell himself, he is
warned of the character of Lord Campbell's writings, and in
particular that the Life of Lord Hardwicke is amongst his worst
Meanwhile George Harris, a barrister of the Middle Temple of
some standing, had been preparing a Life of Lord Hardwicke from
the family papers at Wimpole, which was published in 3 volumes
in 1847, immediately after Lord Campbell's work. The author,
however, appears to have been very ill-fitted for the task. He
complains too of " not seeing any of the Wimpole papers until
so late, then being only allowed a glance of them at Wimpole,
instead of having them all before me, and only during the last
half-year being allowed to take them away, and then merely a
portion at a time'." In the circumstances it is surprising that the
' Aiitobiopaphy, 155.
book was no worse. A number of letters of the highest interest
were now published for the first time, which threw new light on
many incidents and characters of the period. The material, how-
ever, was printed in disjointed portions, mostly without notes or
explanations, and formed no connected or intelligible history of
the time, still less any portrait of the subject of the biography.
Moreover, Mr Harris was a candidate for legal office, and Lord
Campbell's errors and misrepresentations were not refuted with
sufficient clearness and decision.
Such, however, has been the only alternative to Lord Campbell's
work, with the exception of the short but excellent account written
by Edward Foss, F.S.A., in his Lives of tJie Jjidges, in 1884, and
the short notice in the Dictionary of National Biography, which,
however, adds little to the facts already extant.
An opportunity of writing a complete Life of Lord Hardwicke
was first afforded in 1899, when the Hardwicke MSS. from
Wimpole, of more than 1000 volumes, were purchased by the
Trustees of the British Museum. The Chancellor's correspondence
and papers were now first arranged in order and made accessible.
At the same time a volume containing the second Earl of Hard-
wicke's Parliamentary Journal and other papers, which by some
mischance had strayed from the family collection, was in addition
acquired. By good fortune, moreover, the MSS. of the Duke
of Newcastle had ten years earlier been also deposited in the
British Museum, and these two great collections, which supple-
ment each other and contain the private correspondence between
the Duke and the Chancellor for 30 years, were now for the first
time joined together and placed at the disposal of the student of
history. These now constitute the greater portion of the present
volumes, and are the chief authority for the facts and opinions
advanced therein ; and the present author has subordinated and
curtailed his own narrative, in order to present the original cor-
respondence as fully as possible, except in the chapter on the
Chancellor's work in equity. Here it has been sought by gathering
up the details into a few, large, clear and fundamental principles
to present to the reader a broad and comprehensive, though of
course technically imperfect, review of Lord Hardwicke's great
work in the Court of Chancery, and to treat it in its personal
rather than in its legal aspect, as illustrating his character and the
nature of his intellect rather than the principles of law evolved
Besides the correspondence published in Harris's Life of Lord
Hardwicke, and already mentioned, some letters of the earlier
period from the Newcastle MSS. were printed in Archdeacon
Coxe's works on Sir Robert Walpole, and Henry Pelham, and
in his Life of Horace, Lord Walpole, and some few of the later
period from the Hardwicke MSS. by Lord Albemarle in the
Rockingham JMemoirs. Others will be found in the Chatham
Correspondence, in Lord Anson's Life, in the Ciilloden Papers,
and elsewhere, and a small series of letters from the Hardwicke
MSS. between the Chancellor and Archbishop Herring was printed
by the late Dr Richard Garnett in the English Historical Review.
The greatest portion, however, of the whole correspondence is now
published for the first time, and the whole appears for the first
time annotated and systematically arranged.
The spelling has been modernised for the sake of convenience,
except in the case of a few letters where some interest seemed to
be attached to the exact reproduction of the manuscript ; and
stops have been added and varied throughout.
Abbreviations, especially in the case of proper names, have
been extended, but only in those instances when no doubt what-
ever existed ; in all others the addition appears within square
brackets. Words and passages underlined in the manuscript
have not been reproduced in italics except when special emphasis
seemed to be intended by the writer, as it was found that the
greater part of such underlinings were the work of other hands,
generally of the recipient. The years have been dated according
to the new style and calendar, reckoning the beginning of the year
from the ist of January.
Since the present work has been to press, a further volume
of Lord Chancellor Hardwicke's papers, numbered Add, 38161,
has been fortunately acquired by the Trustees of the British
Museum, consisting chiefly of his notes of debates and speeches
in the House of Lords, which, however, had already been repro-
duced in this biography from other sources.
Ph. Ch. Y.
98, Addison Road,
March, 191 3.
TABLE OF CONTENTS
Introduction. The Classical Age i
FAMILY AND ORIGIN
Narrative. Families of Yorke â€” The Yorkes of Wiltshire â€” Bartholomew
SIMON YORKE OF DOVER
Narrative. Municipal office â€” Displaced â€” Summoned before the Privy
Council â€” Marriage and Death 13
FAMILY OF SIMON YORKE AND THE CHANCELLOR'S
Narrative. Simon Yorke's sonsâ€” The Yorkes of Erthigâ€” Philip Yorke
of Doverâ€” Marriage to Klizabeth C.ibbonâ€” Edward Gibbon the
Historianâ€” Family of Philip Yorke the Elderâ€” His daughters . 23
Correspondence. Family correspondence â€” Mrs Elizabeth Yorkeâ€” Mrs
Jones â€” Misfortunes of Mr Jonesâ€” Death of Mr Jones â€¢ â€¢ â€¢ 39
YOUTH AND EDUCATION
Narrative. Education of the younger Philip Yorke â€” School friends â€”
Enters solicitor's office â€” Contributes to the Spectator â€” Friends at
the Par 48
Correspondence. Party Governmentâ€” Religious freedom ... 58
X TABLE OF CONTENTS
Narrative. Early successâ€” Coke upon Littleton in verseâ€” Enters Par-
liamentâ€”Marriageâ€”Appointed Solicitor-General .... 02
Narrative. Political stateâ€” Crown prosecutions 72
Correspondence. Jacobites in Wales 76
Narrative. Morality part of the Law â€” Prosecution of the Craftsman â€”
Libelâ€” Prosecution of Lord Macclesfield â€” Constitutional status of
the Colonies â€” Official opinions â€” Private ^xaciiceâ€”Jtidicial Authority
belonging to the M. R. â€” Acquaintance with Lord Bolingbroke â€” The
Excise Bill â€” His childrenâ€” Essays written for his sons â€” "The
Government of the Mind" â€” Residence 79
Correspondetice. Legal etiquette â€” Competition for his services â€” "The
Proud" Duke of Somerset â€” Good wishes from Lord Bolingbroke . 109
LORD CHIEF JUSTICE
Narrative. Waives claims to the Great Seal â€” Judicial ofifice and Peerage
â€” Judgments in K. B. â€” Ecclesiastical jurisdiction â€” Juries and wit-
nesses â€” Richard Savage â€” Certainty in the Law â€” Repression of
crime â€” Foundations of social order â€” Charges to the Grand Jury-
Explosion in Westminster Hall â€” Judicial independence â€” Lawyers
the Guardians of Liberty â€” The Seat of Justice a Hallowed Place â€”
The balance of the Constitution â€” Union â€” Legislationâ€” Opposes
Government measures 116
Correspondence. Trial of Cornwall rioters â€” Tumults in Herefordshire 152
LORD CHANCELLOR â€” THE WALPOLE MINISTRY;
Narrative. Procession to Westminster Hallâ€” Lord Chancellor and Lord
Chief Justice â€” Quarrel between the King and Prince â€” Heads the
Deputation to the Prince â€” Proceedings in Parliamentâ€” Removal of
Princess from the Palace â€” Private interview with the Prince â€” Re-
monstrates with Walpole â€” Foretells the future mischiefs â€” Unsuc-
cessful efforts to make peace â€” The Prince ordered to leave the
Palaceâ€” The King's Letterâ€” The Porteous Outrageâ€” Jenkins's Ear â€”
Attitude towards the War â€” Supports the Convention â€” Divisions in
the Cabinet â€” Peace-makerâ€” Conduct of Admiral Vernon â€” Oppo-
sition attacks -Final assault-The Chancellor's speech â€” Hano-
verian neutralityâ€” Fall of Walpoleâ€” Purchase of Wimpoleâ€” The
Chancellor's P'amily â€” Eldest son's marriage â€” Happy circumstances â€”
Great influence 157
TABLE OF CONTENTS xi
Correspondence. Negotiations with Spain â€” Sarah, Duchess of Marl-
borough â€” Liberty of the press â€” Expeditions â€” Visit to Portsmouth â€”
Hanover Influence â€” Lord Hervey Privy Seal â€” Uuke of Newcastle's
oppositionâ€” Duke of Newcastle's jealousies â€” The Chancellor's Re-
assurancesâ€”Further Cabinet Dissensions â€” The Chancellor keeps the
Peaceâ€” Sarah, Duchess of Marlborough^Hanoverian Interests â€”
Frederick of Prussia â€” Dissensions in the Regency â€” Further disputes
with Walpole â€” The King's Remonstranceâ€” Attack on Sir Robert in
the Commons â€” Admiral Vernon's failure â€” America is not to be given
up â€” Hanover Influence and Walpole â€” The Chancellor summoned
to Town â€” "America must be fought for in Europe" â€” The King's
desertion of the Great Causeâ€” Military criticism of Admiral Vernon
â€” Hanover neutrality â€” Duke of Newcastle's opposition â€” Piidet haec
opprobria â€” Contradictory negotiations â€” Naval criticism of the
army . . . . . . .215
THE PELHAM ADMINISTRATION TILL THE BATTLE OF DETTINGEN
Narrative. Failure of the Opposition â€” The Pelhams in Power â€”
Chesterfield, Pitt, Carteret â€” Henry Pelham and Duke of Newcastle
â€” Character of the Duke of Newcastle â€” The Chancellor's support â€”
Defence of Walpole â€” The Hanoverian question â€” The Chancellor's
attitude â€” Battle of Dettingen ........ 278
Correspondence. The Chancellor's advice to Joseph Yorke â€” Joseph
Yorke's accounts from the army â€” Appeals from the Duke of
Newcastle â€” The army at Ghent â€” Lord Stair's displeasure â€” The
Chancellor's further advice to his sonâ€” Failure at Porto Cabello â€”
Ill-conduct of the troops â€” Battle of Dettingen â€” Congratulations . 298
THE CONTEST WITH AND DEFEAT OF LORD GRANVILLE
Narrative. Recapitulation of events â€” Treaties of Worms and Hanau â€”
Debate in the Cabinet^Lord Granville overruled â€” Measures of
defence â€” Forfeiture for High Treason â€” Lord Granville's conduct â€”
Remonstrance to the King â€” Lord Granville's resignation . . 318
Correspotidence. Henry Pelham First Lord of Treasury â€” Treaty of
Hanau â€” Opposition to the Hanover Troops â€” Contest with Lord
Granville â€” Lord Granville's methods â€” Anson's Voyage â€” The armies
abroad â€” Joseph Yorke's Journal â€” P'rederick renews the war â€” Plans
of campaign â€” The King's ill-humour â€” The Chancellor on the state
of aff"airs â€” End of inglorious campaign â€” -More dissensions â€” The
Chancellor's paper to the King â€” Unanimously supported â€” Newcastle
contemplates resignation â€” The Chancellor's support . . . 2*2)1
THE BROAD BOTTOM MINISTRY AND THE BATTLE
Narrati^ie. Reconstitution of liie Ministry â€” Lord Holingbroke â€” Victory
of the Pelhamsâ€” The Chancellor's audienceâ€” The King's ill-humour
â€” Scenes in the closet â€” Attitude (jf Holland ..... J73
xii TABLE OF CONTENTS
Correspondence. The King's hostilityâ€” The Chancellor's remonstrances
â€” Joseph Yorke at Fontenoy â€” Letters from his parents â€” The Chan-
cellor's vigorous measuresâ€” Letters to Capt. Yorke from his brothers
â€”Charles Vanbrugh : he died in his callingâ€” Joseph Yorke's account
of the battleâ€” The famous advance â€” Tactical mistakes â€” Tears for
the Gallant Deadâ€” Joseph Yorke promoted â€” Despatch of troops to
Narrative. Faction â€” Chancellor takes measures of defence â€” Rouses
the Country â€” Thomas Herring, Archbishop of York â€” Retreat of the
rebels â€” The Ministry of Forty Hours â€” Discomfiture of Lords Bath
and Granville â€” Culloden â€” Dawn of the New Epoch . . . 415
Correspondence. Landing of the Young Pretender â€” Lord Glenorchy â€”
Surrender of Ostend â€” Progress of the French â€” Archbishop of York
â€” State of the Highlands â€” The Young Pretender â€” Progress of the
Rebellion â€” Failure of Sir John Cope â€” Intrigues against the Ministers
â€” The rebels enter Edinburgh â€” Defeat of Cope at Prestonpans â€”
Criticisms â€” Panic â€” Faction â€” Surrender of Carlisle â€” Marshal
Wade's difficulties â€” Progress of the rebels â€” Organisation of the
pursuit â€” The rebels at Manchester â€” Advance to Derby â€” Retreat â€”
Duke of Cumberland's pursuit â€” Alarms of an invasion â€” The pursuit
stopped â€” Fight at Clifton â€” Siege of Carlisle â€” Explanation of the
stop â€” Intercepted Letters â€” Capture of Carlisle â€” Relief of Stirling â€”
Duke of Cumberland reaches Perthâ€” Resignation of the Ministry-
Archbishop of York on the crisis â€” Discomfiture of Lords Bath and
Granville â€” General Rejoicings â€” Lord Granville's comments â€” Sur-
render of Brussels â€” The Duke at Aberdeen â€” Political state of Scot-
land â€” Military Position â€” Duke of Cumberland's firmness â€” Crossing
of the Spey â€” Colonel Yorke at Culloden â€” Defeat of the rebels-
Rejoicings â€” "Completion of the Great Event" â€” The value of public
SCOTLAND: DISCIPLINE AND GOVERNANCE
Narrative. The Duke's order after the battle â€” Charges of atrocities â€”
Measures for suppressing the Rebellion â€”Pains and Penalties . . 530
Correspondence. After Cullodenâ€” Romantic Scenery of the Highlands-
Measures for suppressing the Rebellion â€” Disarming â€” Capture of
Murray of Broughtonâ€” Applications to the Chancellorâ€” Act for the
trial of treasonâ€” Atrocities disproved â€” Ill-treatment of Lord Breadal-
bane â€” Murder of Campbell of Glenure 538
TRIALS OF THE REIJEL LORDS
Narrative. Lord High Steward's procession â€” Lords Kilmarnock, Cro-
martie, Balmerinoâ€” Lord Steward's speechâ€” The prisoners' crimeâ€”
The Royal Mercyâ€” Trial of Lord Lovatâ€” Conduct of the Trial â€”
Lord Steward's speech . . . . . . . -559
Correspondence. Fate of Kilmarnock and Balmerinoâ€” Lord Lovat's
strong boxâ€” Trial of Lord Lovatâ€” Murray of Broughton's evidence
â€”"A strange, tough, old Highlander"â€” Lord Lovat's execution . 575
TABLE OF CONTENTS xiii
SCOTLAND: REFORM AND PROGRESS
Narrative. The Chancellor's task â€” Hereditary Jurisdictions â€” The Chan-
cellor's speech â€” Abolition of the Jurisdictions â€” Further legislation â€”
Suppression of Jacobitism in the Church â€” Union of the two King-
doms â€” The New Scotland 588
Correspofidence. The new laws â€” Hereditary Jurisdictions Bill â€” Corre-
spondence with the Duke â€” Correspondence with President Forbes
â€” Duke of Argyll on the Bill â€” Episcopal orders in Scotland Bill â€”
Gratitude from Scotland â€” Signs of the new age â€” Advance in pros-
perity â€” Uniformity of laws 604
THE PEACE OF AIX-LA-CHAPELLE
Narrative. Negotiations â€” The Chancellor's discourse to his sons â€” The
last Campaign â€” The Treaty 625
Correspondence. The Convention of Hanover â€” Lord Chesterfield Secre-
tary â€” Anson's Victory â€” Battle of Lauffeld â€” The Retreat â€” Colonel
Yorke's criticisms â€” The enemy's heavy losses â€” The Chancellor's
inquiries â€” The King of Prussia â€” Mission to Berlin â€” Duke of New-
castle at Hanover â€” Colonel Yorke's mission to Paris â€” Obstruction
from Vienna â€” Quarrels of the Pelhams â€” Newcastle's dispute with
Sandwich â€” Progress of the Negotiations â€” Prince of Wales condemns
the Peace â€” Duke of Newcastle's complaints â€” The Chancellor's re-
monstrances â€” Newcastle defends his diplomacy â€” Henry Pelham's
ill-humour â€” The Treaty made â€” Duke of Newcastle's triumph â€” The
question of Hostages â€” Further Quarrels â€” The Chancellor as Peace-
Sir Philip Yorke, as Attorney-General, from a portrait by Thomas Hudson, with
the kind permission of the late J. R. Yorke, Esq., in possession of V. W.
Yorke, Esq., of Forthampton Court . . . frontispiece of vol. 1.
Sketches al the trial of Lord Lovat, of the Lord High Steward, the prisoner,
and other figures, by William Hogarth, from the original at the British
Museum to face p. 574.
ABBREVIATIONS USED IN THIS WORK
Add. = Additional MSS. in the British Museum.
Almon=John Almon, Anecdotes of the Earl of Chatham (i793)-
Ambler = Reports of Cases in Chancery by Charles Ambler (1828).
Andrews = Reports of Cases in the King's Bench by G. Andrews (1792).
Annaly = Cases in the Court of King's Bench by John, Baron Annaly (1770).
Atkyns = Reports by J. T. Atkyns (i794)-
Barnardiston = Reports of Cases in Chancery ( 1 742) and Reports of Cases in the
King's Bench (1744) by T. Barnardiston.
Bedford Corr. = Correspondence of John, fourth Duke of Bedford (1842).
BuckinghamshireCorr. = Buckinghamshire Correspondence (Royal Hist. Society,
Caldwell Papers = Caldwell Papers (Maitland Club, 1854).
Campbell = Lord Campbell's Lives of the Chancellors (1846).
Chatham Corr. = Correspondence of the Earl of Chatham (1838).
Chatham MSS. = Collection of Chatham MSS. in the Record Office.
Comyns = Sir J. Comyns, Reports ed. by S. Rose (1792).
Cooper = C. P. Cooper, Chancery Miscellanies (1850), Brief Account of the Court
of Chancery (1828).
Cox = S. C. Cox, Cases in the Court of Equity (1816).
Coxe's Pelham = W. Coxe, Memoirs of Henry Pelham (1829).
Coxe's Walpole = W. Coxe, Memoirs of Sir Robert Walpole (1798).
Coxe's Lord Walpole = W. Coxe, Memoirs of Lord Walpole (1808).
Cunningham = Reports of Cases in the King's Bench by T. Cunningham (1766).
Dickens = John Dickens, Reports of Cases in Chancery (1803).
Diet. Nat. Biog. = Dictionary of National Biography.
Dodington's Diary = G. Bubb Dodington, Diary (1809).
Douglas = S. Douglas, Reports (1813-31).
Durnford and East = C. Durnford and E. H. East, Reports (1787 etc.).
Eg. = Egerton MSS. in the British Museum.
Eonblanque = J. F. Fonblanque, Treatise of Equity (1812).
Glover's Mem. = R. Glover, Memoirs (1814).