On the trial of Lord Morley for the murder of Mr. Hastings before the Lord High Steward and the Peers, he made a most elaborate speech, laying down with great precision the distinction between murder and manslaughter. Some of his observations on the effect of the prisoner being a Peer are curious: "I do acknowledge to your Lordships (for why should I conceal any thing that makes for my Lord Morley's advantage?) I do confess that an affront or indignity offered to a Peer is much more heinous than that which is offered to a private gentleman. But I must needs say withal, that the law hath provided another manner of reparation for a Peer than that which it gives a gentleman. The same words that being spoken of a gentleman will bear no kind of action, when they are spoken to a Peer become scandalum magnatum. The Peer recovers great damage; the King inflicts fine or imprisonment; so that upon the matter the offender is bound in chains, and brought and laid at my Lord's feet. Now, for him whose honour is thus guarded by the law, to avenge himself by his sword, is a most unpardonable excuse. I do not pretend, I do not offer to say, that the killing of a man is more capital in the case of a Peer than would be in the case of a private gentleman: but I do presume to affirm, that no provocation in the world can make that to be but manslaughter in the case of a Peer that would be murder in the case of a gentleman." The noble prisoner was acquitted of murder by all except two Peers (Ashley and Wharton), and being found guilty of manslaughter pleaded his privilege and was discharged.*

Sir Jeffrey Palmer, after a lingering illness, dying in 1670, Sir Heneage Finch, as a matter of course, succeeded him in the office of Attorney General, the duties of which he had [A. D. 1670.] long performed. He now took a more prominent part in the House of Commons, and stoutly defended the measures of the Government, which had become of a very unconstitutional and dangerous character.

He strongly opposed the "Coventry Act," and proposed that the punishment of "cutting to disfigure" should be only forfeiture of goods and imprisonment for lifet,-actuated, I fear, less by a dislike of capital punishment than by a desire to please the Court, who highly approved of the dastardly atrocity which gave rise to this piece of legislation.§

He successfully opposed a measure for enforcing the attendance of members of parliament, by enacting that defaulters should be doubly assessed to the subsidy, saying, " you have a power to fine them, and you may appoint a day to pay it, on penalty of expul

* 6 St. Tr. 786. So the Duchess of Kingston, being found guilty of bigamy in 1776, was discharged with a caution from the Lord High Steward "not to do the like again."

† 22 & 23 Car. 2. c. 1.

4 Parl. Hist. 466, 467.

§ Slitting the nose of Sir John Coventry by hired bravoes for a pleasantry uttered by him in the House of Commons upon the amorous propensities of the King. 27

VOL. III.

sion from the House." It was rejected only by a majority of 115 to 98.*

In 1671 a keen controversy arose between the two Houses as to the right of the Lords to alter money bills, partic[A. D. 1671.] ularly in lowering rates voted by the Commons, the Lords having unanimously resolved "that the power exercised by them in making amendinents and abatements on a bill for imposing duties on foreign commodities, both as to the matter, measure, and time concerning the rates and impositions on merchandise, is a fundamental, inherent, and undoubted right of the House of Peers, from which they cannot depart." There were various conferences on the subject, which were managed, on the part of the Commons, by Mr. At. Gen. Finch, who in vain tried to persuade the Lords, by citing precedents, and by appealing to their regard for the wishes and interests of the King, to abandon their amendments, and to pass the bill as it was sent up to them. Neither party would yield, and the bill was lost by a prorogation. But the Commons ultimately prevailed; and allowing it to be highly proper that they should guard to themselves the right of granting the supplies, they have carried their jealousy of amendments by the Lords in money bills to a pitch unnecessary, coxcomical, and often highly detrimental to the public service.

The promotion of such an interloper as Shaftesbury to the office of Lord Chancellor, upon the removal of Lord Keeper [Nov. 1672.] Bridgeman, must have been a heavy disappointment to Finch, who, having been now above twelve years a law officer of the Crown, and having served with applause, must have expected to succeed him "as the night the day." He found it convenient, however, to smother his indignation, and zealously to support his new master, even in the attempt to issue writs for the election of members of the House of Commons of his own authority, without the privity of the Speaker. When this subject came to be debated, Mr Attorney, forgetting his late fight for the privileges of the Commons, boldly argued that it belonged to the Chancellor to issue the writs in vacation time, saying, “it is a necessity to the public that things may not be carried in a thin House: a Peer may knock at the door, and call for his wirt to the Chancellor.” It was nevertheless resolved, "that all elections upon the writs issued by the Chancellor since the last session are void, and that Mr. Speaker do issue out warrants to the Clerk of the Crown to make out new writs for those places." And this important and necessary privilege of the House of Commons has never since been disputed.

"There

Finch boldly defended the famous "Declaration of Indulgence,” -on the King's universal and absolute dispensing power. is no question," said he, " of the King's power of dispensation where the forfeiture is his own. Where half the penalty is to

*4 Parl. Hist. 473.

↑ Ibid. 480. 487.

the informer, the King may inform for the whole and dispense for the whole. The question is, whether the King cannot dispense with the laws in order to the preservation of the kingdom; and we are all miserable if he cannot."* This is the vaunted champion of the laws and constitution of his country! He first contends for the power of dispensing with all penal laws, on the reasoning that they are only enacted to provide pocket-money for the King, who may therefore renounce what was intended for his private benefit‡; and having established this point, he invests the King with the prerogative of dispensing with all laws which he or his ministers may think inconsistent with the public safety, or, in other words, disagreeable to themselves!

His last appearance in the House of Commons was on the 31st of October, 1673, when Shaftesbury, openly in- [OCT. 31, 1673.] triguing with the heads of the country party, was

about to be turned out. The question was, whether the redress of grievances or the grant of supply should have the precedence? -and the aspirant to the Great Seal argued, "that not first to give money is at this time a grievance not to be redressed in many ages."§ It was presently intimated to him that he was to be Lord Keeper, and the morning of Sunday, the 9th of November, was appointed for the investiture. We have alWe have al- [A. D. 1673.] ready related the terrible fright he was then thrown into by Shaftesbury's waggery, and how, in the evening of the same day, he was made happy by the Great Seal being actually put into his hand, and his carrying it home with him as the true Lord Keeper. This is the official record of the event:—

"Sr. Heneage Finch, Kt. & Bart., the King's Matys Atturny Generall, received the Great Seale of England as Lord Keepr from His Maty, at Whitehall, on Sunday, in the evening, being the 9th of Novr., 1673, in the 25th year of his said Matys raigne. The King sent for it the same day from the Earl of Shaftesbury, Lord Chancellor, by Mr. Secretary Coventry."¶

His first act was to seal a pardon to his predecessor, which had been stipulated for when Shaftesbury took the office, foreseeing that he might probably do many things for which a pardon might be required, and wishing to have the pleasure of sinning with an indulgence in his pocket. He then sealed a commission authorising the Master of the Rolls and others to hear causes in his absence.

On the 11th of November the new Lord Keeper had a grand procession from his house, in Queen Street, Lincoln's Inn Fields, to Westminster Hall, attended by the Lord Treasurer, the Lord Privy Seal, the Duke of Buckingham, the Duke of Ormond, the Marquis of Worcester, many others of the nobility, the Judges the King's Counsel, and all the gentlemen of the Society of the

* 4 Parl. Hist. 522.

† 3 Bl Com. 56.

§ 4 Parl. Hist. 592. ¶ Crown Off. Min. Book, fol. 73.

"Cuique licet renunciare juri pro se introducto." Ante, p. 263.

Inner Temple. Entering the Court of Chancery, he took the oaths of office, the Master of the Rolls holding the book.

According to ancient usage he ought then to have delivered an inaugural address, of which high expectations were formed from his rhetorical reputation; but he immediately called upon the Solicitor General to move, and proceeded to business.* He probably was deterred from attempting a task which, in ordinary circumstances, he could have performed so easily and so gracefully, by the embarrassment of touching upon his predecessor, whom, according to the precedents he ought to have praised for his learning and exemplary conduct, and proposed to himself as an example to stimulate his love of law and of virtue.

In a note to his MS. cases, he himself favours us with the following autobiographal account of these occurrences.

66

Sunday, 9th November, 1673. "At six at night I received the Great Seal from his Majesty at Whitehall, and was made C. S.-10th. I recipi'd my Lord Shaftesbury's pattent, which came to me from the Privy Seal. It was reported his Lordship kept the bill signed by him above a year and a half, for it was signed before he was Chancellor, as is said, and never meant to send it to the Seals till there was great necessity, and so hath covered all his misdemeanours as Chancellor. But this was a malicious report to his prejudice and mine, as if he had been false, and I too easy in this matter; for in truth the pardon did extend to the 6th of November, which could not possibly be by virtue of any old warrant; but the Chancellor, foreseeing his fall, obtained a warrant for a new pardon, signed by Mr. Secretary Coventry, and Mr. Solicitor North passed it on Saturday the 8th of November, and his Lordship intended to have sealed it as Chancellor, for the Privy Seal was directed to him by that name; but it was razed in the King's presence, and directed to me by name, with a nuper Cancellarius interlined where it mentioned him. Also I sealed a commission to the Judges and Master of the Rolls to hear causes, for by the change of the C. or C. S. the commission fayles.—11th. I took my seat and was sworne in Chancery; but I made no speech, as some of my predecessors have done, upon the occasion.

On the 10th of January, 1674, he was created Baron FINCH, of Daventry, in the county of Northampton; on the 19th of December, 1675, Lord Chancellor of England†; and on the 12th of May,

*Sir Francis North was then Solicitor General, and was made Attorney General the following day.

† Of this further elevation we have the following account in his MS. reports. Sunday morning. The King going to chapell declared me Lord Chancellor, whereupon I kist his hand, and presently had the compliments of all the Court, and not long after from all the ambassadors and foreign ministers."

"The Right Honoble Heneage Ld. Finch, Baron of Daventre, took the oath of Lord Chancellor of England in the High Court of Chancery, on Monday the 24th of January, in the 27th year of his Matys reign, being the first day of Hilary Terme ;

1681, Earl of NOTTINGHAM, which has become his historical name, and by which I shall henceforth designate him.

CHAPTER XCII.

CONTINUATION OF THE LIFE OF LORD NOTTINGHAM TILL HIS FIRST QUARREL WITH LORD SHAFTESBURY.

He held the Great Seal and presided in the Court of Chancery nine years, during the whole of which time he de

voted himself with indefatigable labour and with [A. D. 1673.] brilliant success, to the discharge of his judicial duties. I have sincere delight in relating, for the instruction and improvement of those who may aspire to rival his fame, the course he pursued. He did not consider his office as chiefly political, nor, anxious only to retain it, did he entirely occupy himself with court intrigues, or the management of a party in parliament; nor did he become indolent and remiss on reaching the great object of his ambition; nor did he dissipate his attention among a variety of pursuits,— from the vulgar ambition of being admired for universality of genius,—which leads generally to universal shallowness of acquirement. Placed at the head of the magistracy of a great country, he deemed it his first duty adequately to administer justice from his own tribunal; and for this purpose he did not think it enough merely to sit in public a certain number of hours, and to bestow decent pains upon each particular case which came before him. Justly regarding jurisprudence as a science which rests on general principles, and is illustrated and defined by the writings and rules of former jurists, he bore in mind that without a familiarity with these it was impossible that his own decisions should be consistent, systematic, and sound. He had peculiar difficulties to struggle with, that Equity, which he was to administer had sprung up originally in England, more from a desire to get at what was thought the justice of a particular case between litigating parties, than to lay down methodical rules,-that many of his predecessors had been men not educated in the profession of the law, and incapable of apprehending legal distinctions,-that their judg ments had been generally allowed to fall into oblivion as more likely to mislead than to guide, and that no attempt had been made to classify or to systematise those which had been preserv

the book being held to him by Sr. Harbottle Grimston, Mr. of the Rolls, and the oath read by Mr. Bucher, Clerk of the Crown,

"His Majesty having been pleased on the 19th day of December before to take the Seale into his own hands, and to deliver it to him again by the stile of Lord Chancellor.

“Md. he took only the oath of Chaner."

Crown Off. Min. 54.