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they say ; but as she is a very reasonable woman, I have almost brought her over now to your opinion; and have convinced her that, as matters stood, we could not possibly maintain all the nine; she does begin to think it reasonable that the youngest should raise fortunes for the eldest." This eldest was Benjamin, who died without issue in 1767; of the second son, Henry, we are now to give a somewhat more particular account.
He was born on the 20th of May, 1714, and having gone through the usual course of school discipline, was entered of Christchurch, Oxford, where he graduated B. A. in the year 1733. He had in the meantime kept terms at Lincoln's Inn, and in Hilary term, 1735-1736, was called to the bar by that society. The practice he obtained was of a very limited nature, and certainly altogether inadequate to account for his subsequent elevation. His name occurs very unfrequently in the reports : in the state trials we meet with him on one occasion only, as leading counsel for the prosecution in the extraordinary case of Mary Blandy, tried for the poisoning of her father, at the Oxford assizes, 1752. His professional views, however, were, as was natural from his father's large party connexions, made subservient to, or at least dependent on, his political. He was introduced into parliament at the first opportunity afforded him after he attained his majority ; being returned at the general election of 1735 for Cirencester, for which borough he continued to sit until his elevation to the bench. He attached himself warmly to the same party in the ranks of which his father had so long combated; and although he does not appear to have spoken very often, his vote was never wanting to swell the growing minority against sir Robert Walpole. On the dissolution of Walpole's cabinet, and the accession of the Pelhams to power, in the following year, he voted for some years with the government, under which his father held for a short period the office of captain of the
band of gentlemen pensioners. But, in the year 1745, he was appointed solicitor general (he became in 1748 attorney general) to Frederic, prince of Wales, then at the very height of his dissensions with his father; and, as in duty bound, found no difficulty in again severing his connexions with the court, and passing through the neutral region of a cold and distrustful respect to an hostility as unmitigated as that which he had opposed to the former ministry.
The unlooked-for death of the prince, in the same year, scattered at once all the hopes of the faction of Leicesterhouse. The “rising sun” was prematurely set, and the hands of the government were so effectually strengthened by the dissolution of his party, as to leave those who built their prospects on political advancement, much too distant a hope of success by a perseverance in opposition. Mr. Bathurst, accordingly, was not long found in the camp of the anti-ministerial forces. Little more than two years afterwards, he was so far from occupying a position adverse to the government, as to be selected, on the recommendation of lord Hardwicke, to fill a vacant place on the bench of the common pleas, where he took his seat on the 6th of May, 1754; his colleagues being lord chief justice Willes, Mr. Justice Clive, and Mr. Justice Noel. This quiet and uneventful post he occupied for the period of seventeen years.
The court of common pleas, from the limited nature of its jurisdiction, and the still more limited extent of its business, could seldom, if ever, be the scene of forensic contest of that general and stirring interest of which the criminal judicature of the king's bench made that court at times the theatre, and which, on even more solemn and national occasions, has awakened the echoes of Westminster hall, or thronged the galleries of the house of lords. During the period, however, in which Mr. Justice Bathurst sat there, the trials and discussions arising out of the government crusade against Wilkes and his North Briton, which the
popular opinions of lord Camden had attracted to his court, animated, for a time, its dull and stilly atmosphere, and choked its narrow space with the multitudes who crowded to swell the triumph of that notable patriot. Mr. Justice Bathurst concurred in opinion with lord Camden, both on the right of the commons to privilege from arrest for libel, and in refusing new trials to the defendants who complained of excessive damages, in the actions brought against them for seizures under the secretary of state's warrants. Very few of the other reported cases, on which he had to adjudicate, were of any other than merely legal interest. In one instance, and that a ludicrous one enough, the court were equally divided in opinion' - the question being, whether a surgeon and apothecary, not qualified by estate or degree to destroy partridges, was an “inferior tradesman” within the meaning of the aristocratical statute of William and Mary, which subjects to full costs in trespass such “dissolute persons” as, “neglecting their employments," should go forth in quest of game. Mr. Justice Bathurst delivered his opinion, that “the legislature could never intend to permit every master of every little mechanic trade to neglect his trade and go a-hunting;” and that the only line that could possibly be drawn between inferior and superior was, that every tradesman was inferior who was not qualified; and he was inclined to think the parliament penned the act so obscurely, in order not to disoblige their constituents, many of whom were tradesmen! Oh that we might venture to ascribe the same considerate motives to the legislators of our days. This weighty matter was three or four times argued. In another case,' in which it was held that a bond in consideration of past cohabitation was good in law, Mr. Justice Bathurst enriched his judgment by quo
Buxton o. Mingay, 2 Wils. 70.
tations from the books of Exodus and Deuteronomy, and
thence arrived at the conclusion, that "wherever it appears that the man is the seducer, the bond is good.” We wonder when a case will occur, in which the question of the validity of the bond, the woman being the seducer, shall be solemnly adjudged and reported.
In January, 1770, on the dismissal of lord Camden from the chancellorship, and the unhappy death of lord Morden (Charles Yorke), the seals were put into commission, Mr. baron Smythe (afterwards chief baron), Mr. Justice Bathurst, and Mr. Justice Aston, being the commissioners. Their decrees, in the more important cases at least, were believed to be drawn up for them by lord Mansfield: in particular that in the case of Tothil v. Pitt,' wherein, reversing the judgment of the master of the rolls, sir Thomas Sewell, they held the devise in the will of sir William Pynsent, under which lord Chatham claimed the Burton Pynsent estate, invalid by reason of a prior devise of it in the will of the former proprietor, which his honor had adjudged void as tending to a perpetuity. This judgment gave so much dissatisfaction to the profession, that, on an appeal to the house of lords, the case, at the suggestion of lord Mansfield was submitted to the opinion of the other judges, and, upon their answer, the decree of the commissioners was reversed. They retained the seals until the month of January in the following year (1771), when they were delivered to Mr. Justice Bathurst, with the dignity of lord chancellor, and he was raised to the peerage by the title of lord Apsley, baron of Apsley, in the county of Sussex. The appointment excited no small amount of surprise in the profession. Sir Fletcher Norton observed upon it, "that what the three could not do, was given to the most incapable of the three.”
| Dickens, 431.
The malicious muse of sir Charles Hanbury Williams numbers him in the tory band, who
" Were cursed and stigmatized by power,
And raised to be exposed."
The writer whom we quoted in the outset is equally complimentary. “He travelled all the stages of the law with a rapidity that great power and interest can alone in the same degree accelerate. His professional career, in his several official situations, was never prominently auspicious till that wonderful day when he leaped at once into the foremost seat of the law. Every individual member of the profession stood amazed ; but time, the great reconciler of strange events, conciliated matters even here. It was seen that the noble earl was called upon, from high authority, to fill an important office, which no other could be conveniently found to occupy. Lord Camden had retired, without any abatement of rooted disgust, far beyond the reach of persuasion to remove. The great Charles Yorke, the unhappy victim of an unworldly sensibility, had just resigned the seals and an inestimable life together. Where could the eye
of administration be directed ? The rage of party ran in torrents of fire. The then attorney and solicitorgeneral were at the moment thought ineligible.- perhaps the noble lord then at the head of affairs, who was yet untried, had a policy in not forwarding transcendent ability to obscure his own. Every such apprehension vanished upon the present appointment. This man could raise no sensation of envy as a rival, or fear as an enemy." His judicial incompetency was indeed unfortunately too obvious. Sir Alexander Macdonald begins one of his conversations with Dr. Johnson, on his visit to London, in 1772, with a remark, suggested, we presume, by a recent visit to Lincoln's Inn hall, that the chancellors in England are chosen from views much inferior to the office, being chosen from tempo