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Prince, an argument both of his wisdom and sincerity (!); neither in any fraction with his equals worthy of exception, for that of my Lord of Suffolk's business1 was an act of his that told the world in how little esteem he held greatness that would justle and stand in competition with justice; and it is remaining among the best of his memorials that he always stood impregnable, and not to be overcome by might.
"Amongst all the many felicities of his life, that of his short sickness, and the willing embracement of death with open arms, were of the most remarkable observation, for it is our fines qui coronat opus, and changes our mortality into that of immortal glory; for his sickness was not continued with any lingering or loathsome languishing, nor so precipitate as that it bereaved him of the ability of disposing his estate to the contentment of his posterity, or hindered the composing of his thoughts to another and better world.
"Now to this little model of his praise and virtue, I know somewhat of course may be expected to be said of his vices, for man is composed of human flesh and frailty, and the best of men are all subject unto error; Justus septies in die labitur. And who is he that feeleth not in himself the force of his own corrupt nature, and the contagion of our first father's transgression streaming through the veins of his posterity? Surely, modest men may say that this noble man had not the privilege of canonization, to be sainted on earth, and that nothing of blackness could be laid to his eye during the whole course of his life: but when we consider his estate now it is translated to another world, liquor post fatum quiescit, and that odium altissimum and monoculated envy, which is so emphatically fabled in avarum et invidum, becomes checked by the respect of profanation, and fear of trampling on the sacred ashes of the dead; yet I am not ignorant what murmuration hath passed on: his integrity, charging it in implicit terms of playing the game closely and dexterously, and that if our faults could be all pencilled in our foreheads, this deceased lord might then bear in front sufficient argument of his- human frailty. Howsoever, thus much I say, that could he have been limned
1 An information exhibited in the Star Chamber against Thomas Howard, Earl of Suffolk, for malpractices in his office of Lord Treasurer, in 1619, when Coventry was Solicitor-general. See Bacon's Works, vol, xi. p. 369. (Montagu's edit.)
to the life (and I believe it) we should not find in him much of blemish."
We will conclude by placing beside this portrait, in justice to its subject, the beautiful but no less flattering picture drawn by Clarendon, in that admirable review of the court of Charles the First, which prefaces his History.
"The Lord Coventry enjoyed his place with an universal reputation (and sure justice was never better administered) for the space of about sixteen years, even to his death, some months before he was sixty years of age; which was another important circumstance of his felicity, that great office being so slippery, that no man had died in it before for near the space of forty years. Nor had his successors, for some time after him, much better fortune. And he had himself use of all his strength and skill (as he was an excellent wrestler in this kind) to preserve himself from falling, in two shocks: the one given him by the Earl of Portland, Lord High Treasurer of England; the other by the Marquis of Hamilton, who had the greatest power over the affections of the King of any mart of that time.
"He was a man of wonderful gravity and wisdom; and understood not only the whole science and mystery of the law; at least equally with any man who had ever sat in that place; but had a clear conception of the whole policy of the government both of church and state, which, by the unskilfulness of some well-meaning men, justled each the other too much; He knew the temper, disposition, and genius of the kingdom most exactly; saw their spirits grow every day more sturdy, inquisitive, and impatient; and therefore naturally abhorred all innovations, which he foresaw would produce ruinous effeetBi , Yet many, who stood at a distance, thought that he was not active and stout enough in opposing those innovations. For though) by his place, he presided in all public councils, and was most sharp-sighted in the consequences of things, yet he was seldom known to speak in matters of state, which he well knew were for the most part concluded before they were brought to that public agitation; never in foreign affairs, which the vigour of his j udgment could well have comprehended; nor indeed freely in any thing, but what immediately and plainly concerned the justice of the kingdom; and in that, as
much as he could, he procured references to the judges. Though in his nature he had not only a firm gravity, but a severity, and even some morosity; yet it was so happily tempered, and his courtesy and affability towards all men so transcendent, and so much without affectation, that it marvellously recommended him to men of all degrees, and he was looked upon as an excellent courtier, without receding from the native simplicity of his own manners.
"He had, in the plain way of speaking and delivery, without much ornament of elocution, a strange power of making himself believed—the only justifiable design of eloquence: so that, though he used very frankly to deny, and would never suffer any man to depart from him with an opinion that he was inclined to gratify, when in truth he was not, holding that dissimulation to be the worst of lying; yet the manner of it was so gentle and obliging, and his condescension such, to inform the persons whom he could not satisfy, that few departed from him with ill will and ill wishes. But then, this happy temper and these good faculties rather preserved him from having many enemies, and supplied him with some well wishers, than furnished him with any fast and unshaken friends, who are always procured in courts by more ardour and more vehement professions and applications than he "would suffer himself to be entangled with. So that he was a man rather exceedingly liked, than passionately loved; insomuch that it never appeared that he had any one friend in the court of quality enough to prevent or divert any disadvantage he might be exposed to. And therefore it is no wonder, nor to be imputed to him, that he retired within himself as much as he could, and stood upon his defence, without making desperate sallies against growing mischiefs; which, he knew well, he had no power to hinder, and which might probably begin in his own ruin. To conclude; his security consisted in his having but little credit with the King; and lie died in a season most opportune, in which a wise man would have prayed to have finished his course, and which in truth crowned his other signal prosperity in the world."
We have already mentioned Lord Coventry's first marriage, of which his successor was the only issue. By his second lady, (the city widow, whose perfections are so eulogized in the MS.,) who was of the ancient family of the Alderseys, in Cheshire, he had four sons, three of whom attained high distinction in the service of the Crown after the Restoration; and four daughters, all of considerable celebrity for excellence and talent, and to the youngest of whom, Dorothy, belongs the best title to the authorship of that pious and well known manual, the "Whole Duty of Man," as well as of other valuable treatises on religious subjects. From the union of another daughter, Mary, with Henry Thynne, of Longleat, Esq., descend the present Marquisses of Bath. W. ,
ART. III.—THE PROVINCE OF JUDGE DISTINGUISHED FROM THE PROVINCE OF JURY.
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In an article1 of one of our Numbers, published in the year 1831, we examined the division of presumptions, which English lawyers have generally made, into presumptions of law and presumptions of fact; and we added a short summary of the meaning of several terms which are connected with the subject. We there stated that "presumptions of law are legal rules determining the quantity of evidence requisite to the support of a particular averment," and that " presumptions of fact are arguments of which the major premiss is not a rule of law." According to these definitions, the difference between these two classes of presumptions turns entirely upon thie existence of a rule of law, in the absence of which the matter to be investigated consists entirely of fact, and the investigation is to be conducted upon those general rules Whicli are suggested by our experience of the affairs of life. Closely akin to the distinction between these two classes of presumptions, is the distinction between the respective provinces of judge and jury; and we shall find after a little examination, that the principle, upon which in most cases it is j lsntf ^m aW^ases ought to be founded, is the existence of a rule of law; that if such a rule exists, the judge ought to lay it down to be applied by the jury, but that in every other case the decision ought to be left entirely to their discretion.
We are well aware how many important considerations are involved in this question, how closely it is connected with the constitutional privileges of the subject, with the administration of criminal justice, and with the commercial intercourse of the different classes of society. Mr. Starkie concludes his observations upon this subject with the following remark :i— "These observations may not perhaps be deemed to be altogether unimportant, when it is considered how essential it is to preserve the distinction between law and fact, and to prevent any misconception as to the relative functions of courts and juries." To the justice of this remark we fully assent, though we shall presently endeavour to explain why Mr. Starkie has not drawn the distinction with all the clearness of which the subject admits, and has fallen into errors which a little more precision would have enabled him to avoid.
An inquiry into the original establishment of juries would throw but little light upon the point which we are about to investigate; but still is so far necessary as it will prove that juries have always had the power of deciding upon law as well as upon fact. They have been required to answer the whole question, whether A. B. was or was not seised, whether A. B. did or did not commit murder; and they have had the power of deciding in defiance of the judge's charge, and of setting at defiance the established rules of law. 2In the Statute of Northampton, A. D. 1176, the justices are directed, in case a lord should deny to the heir the seisin of his deceased ancestor, faciant fieri recognitionem per duodecium legales homines, qualem seisinam defunctus inde habuit, &c; thus the authority of the recognitio is vested exclusively in the duodecim legales homines, while the judge is but as the commissioner who shall- take their verdict. 3" When the verdict was given, judgment was delivered according to it;" "When the assize failed to give a plain and intelligible verdict, it was the office of the justices to endeavour to elucidate it by interrogation and discussion." "They were to