62 TOWNSHEND LEAVES OFFICE-WHAT IS HISTORY? [1728. has pointed out that, "as the 'Beggars' Opera' was played on the 29th of January, 1728, it is certain either that the date of the historians is an anachronism, or that Gay alluded to some earlier dispute, or that the story Iwas made from the scene." * Lord Townshend did not conduct himself ungenerously towards his old friend and brother-in-law. He did not join the violent faction by which Walpole was assailed. He retired to the country; and by the encouragement which he gave to the turnip-husbandry, he led the way to that system of cultivation which enabled the agricultural production of England to keep pace with her growing population. The same keen critic who notices the anachronism of the quarrel scene as caricatured by Gay, points out that "it is remarkable that Coxe [Life of Walpole] passes, in two lines, the period from May 1730, to January 1733, as wholly unmarked by any public event;" and that "lord Hervey's Memoirs make exactly the same leap." We do not assume that history has nothing to record during this period. It is our duty to notice some matters as public events, which those who chiefly deal with the grand affairs called history-rivalries of ministers, intrigues for places and honours, wonderful adjustments of the balance of power-very frequently pass over. If we dilate somewhat upon topics that have more especial reference to the progress of "the people" in material prosperity and in good government, than we have found in the complexities of the Congress of Soissons, of the Peace of Seville, and of the Treaty of Vienna-topics perhaps more useful than a minute inquiry into the equivocal relations of George II. with lady Suffolk-we must be content to bear the reproach of a school that defines "the people " as "the lower orders." The "eminent hands" of the last century invariably denominated "the people" as "the mob;" and they have successors who divide society into upper classes" created to govern, and "lower orders" sent into the world to obey. The alleged leap of two years and a half in the Memoirs' of lord Hervey is not strictly correct. He notices, at considerable length, as occurring in the latter end of the summer of 1730, a design " projected among all the Dissenters of England to petition the Parliament in the next Session for the repeal of the Corporation and Test Acts." From lord Hervey's official position of vice-chamberlain to the king-which he attained in May 1730, when he left the opposition party of Pulteney, around which he had been hovering, to become the adherent of the minister whose power was now firmly established-he acquired an intimate acquaintance with the inner workings of the court life. The Dissenters represented their steady support of the government on Revolution principles-their unwavering adherence to the Protestant succession. Walpole could not deny their claims; but he knew the storm that would be raised if he gave them encouragement. The queen was persuaded to send for Hoadley, then bishop of Salisbury, to persuade him that "all times were not proper to do proper things," that the bringing forward such a measure as the repeal of the Corporation and Test Acts would still further divide the already divided Whig party-that "as the clergy had hitherto been kept quiet by a promise of everything in their province remaining as it was, so consequently, *Note in Lord Hervey's "Memoirs," vol. i. p. 117. + Ibid. 1729.] THE DISSENTERS. 63 when that promise was broken, it would set all the turbulent spirits and ill-humours of that body again afloat." Hoadley declared that as he had so often given his opinion as to "the unreasonableness of these laws in a social light, and the profaneness of them theologically considered," he must always support the repeal of them; but that he would nevertheless employ his interest among the Dissenters to divert "the immediate trying of this point." A report soon got abroad that the bishop had told the queen that the request of the Dissenters was so unreasonable that he could not give them his support. The bishop was indignant, and urged Walpole to allow him to hold out some promise of future relief to the Dissenters. Sir Robert was firm, and would give no such assurance. The adroit minister, whose power of management was ready to grapple with every difficulty, got the body of London Dissenters to choose a Committee. "As the honest gentlemen who composed that committee were all moneyed men of the city, and scriveners, who were absolutely dependent upon sir Robert, and chosen by his contrivance, they spoke only as he prompted, and acted only as he guided." They were induced to meet the Lord Chancellor, the Speaker of the House of Commons, the two Secretaries of state, and sir Robert; and these great men convinced them that, as there was no prospect of success, the present was an improper time for any application to Parliament for their relief. The Committee reported their negociations to a general assembly of the London Dissenters especially convened; and that assembly adopted their convictions, and communicated them to all their brethren in England. "In this manner this storm that threatened the Administration from the Presbyterian party blew over." Looking at the manœuvre of Walpole, and the subserviency of his committee of Dissenters, we must not altogether forget that in 1727 and 1728 Acts of Indemnity had been passed in favour of those who had not duly qualified for office. In 1729 such an Act was intermitted; in 1730 it was renewed; in 1731 it was again intermitted. During the remainder of Walpole's administration this relief was regularly granted. With four other exceptions, in the reign of George II., the Indemnity was passed every year, till the repeal of the obnoxious laws in 1828. The Parliamentary Records of 1729 and 1730 present us with three Reports of the Select Committee of the House of Commons" on the State of the Gaols of this Kingdom." These reports contain a minute exposure of as horrible a system of oppression and cruelty as probably ever existed in any civilised country. The inquiry was confined to the three London prisons for debtors-the Fleet, the Marshalsea, and the King's Bench. This exposure was one of the most important steps in the slow march of a just administration of the law-that step which at last arrives at the capacity to discriminate between the criminal and the unfortunate. It was the preparation for that onward progress which counts it wisdom, as well as mercy, not to drive the criminal out of the pale of humanity. To one man it was principally owing that these terrible abuses were dragged to light. Mr. Oglethorpe, afterwards general Oglethorpe-the philanthropist whose "strong benevolence of soul" is eulogised by Pope-the accomplished veteran whose life Johnson desired to write, and for whose earnest commendation of his "London," when he was friendless and unknown, Johnson was ever grateful— was Chairman of the Committee that penetrated into the dismal recesses of 64 INQUIRY INTO THE STATE OF THE GAOLS. [1730. the Fleet prison, personally to examine into the condition of the prisoners. The Fleet was an ancient prison, in which the illegal punishments of the Star Chamber had been administered without control. When that jurisdiction was abolished in the reign of Charles I. it became a prison for debtors, and for those committed for contempts by the Courts of Chancery, Exchequer, and Common Pleas. Although the statutes of the 22nd and 23rd of Charles II. vested the government of all prisons in the judges of the higher courts, and in justices of the peace, the Warden of the Fleet enjoyed a patent office, to be purchased by a large payment to some minister of the crown. John Huggins gave 5000l. to lord Clarendon for his patent; and John Huggins sold his patent for a like sum to Thomas Bambridge and Dougal Cuthbert, esquires. The committee of the House of Commons imputed the evil practices of this prison chiefly "to the venality of the warden's office." The worthy patentees had a tolerably profitable investment. By the payments of the prisoners for lodging, they made 8117. 4s. per annum; by the commitment and dismission fees, 7667. 18s. 8d.; by liberty of rules, 15001.; by chaplain's fees, which they farmed upon a small payment to the chaplain, 8137. 168.; by rents of various premises, 7407.; making a total of 46327. 18s. 8d. per annum. A system of fraud and extortion was laid bare by the inquiries of the Committee, which showed how impossible it was, for any but the affluent prisoner to obtain the humblest lodging and the coarsest food. Those without money were handed over to "the common side;" too happy if disease, engendered by filth and starvation, soon released them from their miseries. Those prisoners who refused to bear their oppressions without remonstrance, were put in irons-were confined in damp and loathsome dungeons. The case of captain John Macpheadris, who had been a flourishing merchant till the South Sea year, when, being surety to the crown for a friend, he failed, is narrated in the Report of the Committee with a pathos rarely excelled by writers of fiction. Macpheadris furnished a room, but refusing to pay an extravagant price for it, and offering what was legally due, "Bambridge locked the prisoner out of his room, and forced him to lie in the open yard, called the Bare. He sat quietly under his wrongs, and getting some poor materials, built a little hut, to protect himself, as well as he could, from the injuries of the weather." Bambridge was disgusted at his “ unconcernedness." He ordered his officers to pull down the little hut; he would put the culprit who dared to be " easy " into the Strong Room to-morrow. Through a rainy night the wretched man lay on the ground. But this was comfort compared to the Strong Room. Loaded with irons he continued for three weeks, without a bed, in that dungeon. The irons were so closely riveted that his torture nearly brought him to the point of death, and he became lame for life. The Report of this case thus concludes: "The prisoner, upon this usage, petitioned the judges; and after several meetings, and a full hearing, the judges reprimanded Mr. Huggins and Bambridge, and declared that a gaoler could not answer the ironing of a man before he was found guilty of a crime; but, it being out of term, they could not give the prisoner any relief or satisfaction." Instance upon instance of similar cruelties came before the Committee. Huggins and Bambridge, with four of their agents and accomplices, were ordered by the House of Commons to be committed to Newgate, and to be prosecuted by the attorney-general. A 1730.] INQUIRY INTO THE STATE OF THE GAOLS. 65 bill was subsequently brought in to deprive Bambridge of his office. The inquiry into the prison of the Marshalsea disclosed similar enormities on the part of the keeper, who "hath arbitrarily and unlawfully loaded with irons, tortured, and destroyed, in the most cruel and barbarous manner, prisoners for debt under his care." Thumb-screws and iron skull-caps were here the received instruments of torture. But the horrors of "the common side" of the Marshalsea far exceeded those of the Fleet. Three hundred and thirty prisoners were crowded into a few narrow wards; forty or fifty being locked up, through the night, in a room not sixteen feet square. If they escaped the gaol distemper, famine destroyed them; for the prison allowance was insufficient to support life, and the donations of the charitable were intercepted by the scoundrels in authority. The Committee saw in the Women's Sick Ward many miserable objects lying, perishing with extreme want; and "in the Men's Sick Ward yet much worse." The prison of the King's Bench was found exempt from the most revolting of these abuses. The lord chief justice Raymond did not accept fees or presents from the marshal, and he did hear and redress the complaints of the prisoners. In the Session of Parliament which commenced in January 1731, petitions were presented to the Commons from the magistracy of the North and East Ridings of Yorkshire, complaining "That the obliging grand-jurymen at the sessions of the peace, to make their presentments in a language which few of them understood; and the suffering in any of the proceedings of the courts of 66 LAW PROCEEDINGS IN ENGLISH. [1731. justice, or in any of the transactions of the law, whereby the person or property of the subject may be affected, the use of a language not intelligible, and of a character not legible, but by the learned in the law, were great occasions of the delay of justice, and gave room to most dangerous frauds." The ancient practice of using a corrupt Latin for written pleadings had been abolished, with many other legal abuses, in the time of the Commonwealth. When the Restoration gave back the Monarchy, with much of its inherent good and a considerable portion of its trappings of evil, it was held wise and reverential to restore the old law language. During five reigns the people had borne this mischievous absurdity: Lord Chancellor King, the son of an Exeter grocer one of "the people "-saw the necessity of attending to the prayer of the Yorkshire petitions. He directed a Bill to be introduced in the House of Commons to enact "That all proceedings in courts of justice shall be in the English language." The Bill was passed, after some opposition, such as is always at hand to resist what is dreaded as innovation." In the House of Lords, the judges, speaking through the Lord Chief Justice, were decidedly against the change-difficulties would arise in translating the law out of Latin into English; law-suits would be multiplied, in regard to the interpretation of English words. The duke of Argyle contended that our prayers were in our native tongue that they might be intelligible, and why should not the laws, wherein our lives and properties are concerned. The complaint came from "the people"-from magistrates, from jurymen. There never was a period in our history, even in the darkest times, in which the remonstrances of the middle classes against prescriptive abuses were not faithfully seconded by some of an aristocracy that did not stand, as a caste, apart from "the people." The Bill passed; and the Lords added a clause to provide that records and other documents should be written in a plain legible hand, such as that in which Acts of Parliament are engrossed. The tenacity with which some minds, even of a high order, cling to custom and precedent, is shown in the lament of Blackstone that the old Law Latin was disused. Lord Campbell adds, "I have heard the late lord Ellenborough, from the bench, regret the change, on the ground that it has had the tendency to make attorneys illiterate." There were two other complaints in the Yorkshire petitions which required the labour of a century to redress; "That Special Pleadings, by their intricacy and dilatoriness, rendered the prosecution of the rights of the subject difficult and expensive; that the Recovery of Small Debts, as the Law then stood, was impracticable." The king, in opening the Fifth Session of Parliament in 1732, adverted to the foreign policy by which peace had been secured, and the consequent ease which his subjects enjoyed. "This happy situation of affairs, I promise myself, will inspire you all with such temper and unanimity, and such a seasonable zeal for the public good, as becomes a Parliament sensible of the great blessings they enjoy." It was not probable that the royal recommendation of temper and unanimity would have much influence upon the violent spirit of party. There was a strong opposition to the Address, in which Pulteney took the lead. The great opponent of Walpole was not likely to be in a placid mood. In the summer of 1731 his name had been struck out of the list of Privy-Councillors by the king's own hand, and he was removed from all commissions of the peace. At that period the war of pamphlets and |