Holt, John (1642-1710) (DNB00)

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HOLT, Sir JOHN (1642–1710), judge, born at Thame, Oxfordshire, on 30 Dec. 1642, was eldest son of Sir Thomas Holt of Gray’s Inn, barrister and serjeant-at-law, recorder of Reading and Abingdon, descended from a family of some antiquity seated at Grislehurst, Lancashire. His mother was Susan, daughter of John Peacock of Chawley, near Cumnor, Berkshire. He was educated at Abingdon grammar school, Winchester College, and Oriel College, Oxford, which he entered in 1658 (Wood, Ath. Oxon. iv. 505). Tradition says that his friends at the university were a very dissipated set; that he lived to try one of them for felony, and that on visiting him in gaol and asking about his old companions, he received the response, ‘Ah, my lord, they are all hanged but myself and your lordship.’ Another story is, that finding himself in the neighbourhood of Oxford without any money, he procured a week’s lodging at a county inn by pretending to charm away an ague from which the landlady’s daughter was suffering, by binding round her arm a scrap of parchment, on which he had scrawled a few Greek characters to look like a spell, and that in after years this scrap of writing was put in as the principle evidence against an old woman indicted before him of sorcery, whereupon Holt told the jury the story and directed an acquittal. It is certain that he left Oxford with a degree, and kept his terms at Gray’s Inn, of which he had been admitted a member while still a child (19 Nov. 1652), in time to be called to the bar on 27 Feb. 1663. About ten years later he figured with some frequency in the reports, an in 1676 was elected an ancient of his inn. He was assigned as one of the counsel for the Earl of Danby in his impeachment in 1679, and also for the Lords Powis and Arundell of Wardour, two of the five popish lords impeached in the same year. He appeared for the crown during the next few years in various cases growing out of the excitement caused by the popish plot, e.g. that of Giles charged in 1680 with attempting to murder John Arnold, J.P. for Monmouthshire; the trial of Slingsby Bethel [q. v.] in the following year for an assault on Robert Mason, king’s waterman, at election-time (State Trials, viii. 747); besides those of Pilkington and others in 1683, and William Sacheverell and others in 1684, both cases of election riots. He was also counsel for Lord Russell on his trial for complicity in the Rye House plot in 1683. In the same year he appeared for the East India Company in their great case against Sandys for infringement of their monopoly of the East India trade. His argument is reported at length in ‘State Trials,’ x. 371 et seq. In 1684 he appeared for the defendant in the case of the Earl of Macclesfield v. Starkey [see Gerard, Charles]. The recordership of London having, in consequence of the decision in the celebrated quo warranto case, become a crown office, Holt, who had expressed an opinion in favour of the legality of the decision, was appointed to it in February 1685-6. He was knighted at Whitehall on 9 Feb., and on 22 April following was called to the degree of serjeant-at-law, and was appointed king’s serjeant at the same time. He resigned the recordership after a year on refusing to pass sentence of death upon a deserter from the army. He was nevertheless retained as king’s serjeant, in which capacity he attended the council held at Whitehall on 22 Oct. 1688 for the purpose of establishing the birth of the Prince of Wales. He was no longer employed on behalf of the crown, and legal etiquette precluded him from holding briefs against it, but he privately advised Lord Clarendon in some litigation in which he was involved with the queen-dowager. On the flight of James II he was summoned by the lords to attend the convention as one of their legal assessors (22 Jan. 1688-9); and on 31 Jan. was returned to parliament for Beeralston, Devonshire. He was one of the managers on the part of the commons in their conference with the lords on the import of the word ‘abdicate’ by which James’s action in quitting the kingdom had been described in their vote, and advocated its retention in preference to the milder word ‘desert’ suggested by the lords. On 17 April he was appointed lord chief justice of the king’s bench, and on 26 Sept. he was sworn of the privy council.

During the passage of the Bill of Rights and Succession through parliament, Holt was examined by both houses as to the dispensing power, and gave his opinion in favour of its constitutional character. One of his first acts as chief justice was to grant the place of chief clerk of the enrolments in the king’s bench to his brother Roland. Thereupon one William Bridgman, who claimed the post as trustee for the Duchess of Grafton under letters patent of Charles II, brought an action in the king’s bench to oust Roland. The case was tried in Trinity term 1693, before three puisne judges of that court and a jury, Holt sitting uncovered by his brother during the proceedings. A verdict was given for the defendant, it being proved that the place had lain in the gift of the chief justice for centuries, and that the grant by letters patent was a usurpation. The plaintiff then offered a bill of exceptions, and as the judges refused to seal it, holding that the case had been properly left to the jury, presented a petition to the House of Lords, complaining of their conduct. The matter was discussed at length by the peers, and the judges were summoned to the bar of the house to answer for themselves, but eventually the petition was withdrawn. By his judgment, however, in the Bankers’ case, decided in 1700, Holt showed that he was not disposed to take very narrow view of the royal prerogative. Charles II had in 1677, by letters patent, granted annuities out of the hereditary excise to some of the principal London bankers who were in the habit of accommodating him. Payment on these annuities had been suspended since 1683, and the bankers in 1700 sought to recover the arrears due to them by petition in the court of exchequer. It was urged against them that the grant was bad because it was by letters patent merely, and not by act of parliament. The barons, however, decided in favour of the bankers; and on appeal to the exchequer chamber, Holt affirmed their decision on the broad ground that, under the statute for the abolition of old tenures (12 Charles II, c. 24), the excise duties out of which annuities were payable became the property of the king, who could therefore dispose of them without the concurrence of parliament.

A judgement give by Holt in 1694 on the indictment of Charles Knollys, who claimed to be Earl of Banbury, for murder, involved him in a contest with the House of Lords. Knollys had presented a petition to the house, claimed to be tried by his peers. This the house dismissed. On the case coming before Holt, Knollys put in evidence a patent of Charles I, under which he claimed to be entitled to the peerage, and Holt, being of opinion that he had made out a primâ facie case, which nothing but a regular investigation by the committee of privileges could rebut, discharged him. The House of Lords, summoned Holt to their bar, and required him to give an account of his judgment. This he resolutely refused to do. There was some vague talk of committing him for contempt, but the matter dropped.

In 1701 Holt also showed himself a stout supporter of the political rights of voters against the corrupt tyranny of the House of Commons in the celebrated action Ashby v. White, in which one Ashby proceeded against the returning officer of Aylesbury for having failed to record his vote, and the House of Commons interfered to protect the returning officer. A mythical story was current in the last century to the effect that while this case was pending the speaker of the House of Commons, in full state and with a numerous train of attendants, presented himself in court while Holt was sitting, and threatened him with committal; and that Holt in reply bade him begone, or he would forthwith commit him, had he all the House of Commons in his belly (Hist. MSS. Comm. 7th Rep. App. 759; Shower, Cases in Parliament, p. 111; Lord Raymond, Rep. i. 11 et seq.)

On the dismissal of Lord Somers [q. v.], 17 April 1700, Holt was offered the great seal, but declined it, alleging by way of excuse his almost total lack of experience of chancery business. He acted, however, as chief commissioner of the seal until the appointment of Sir Nathan Wright, 31 May 1700 (Cole, Memoirs of Affairs of State, p. 128; Noble, Cont. of Granger’s Biog. Hist. of England, i. 164; Hardy, Cat. Of Lords Chanc. &c.) Ill-health compelled him to withdraw from the court of king’s bench in February 1709-10. He died on 5 March following at his house in Bedford Row and was buried in the parish church of Redgrave, Suffolk, the manor of which he had purchased from Sir Robert Bacon, a descendant of Sir Nicholas Bacon [q. v.] Having no children he devised the manor to his nephews, subject to a life estate in their father Roland, who placed in the church a marble monument to his memory, representing him seated in a chair, and wearing his judicial robes. Holt married by license, date 28 June 1675, Anne, daughter of Sir John Cropley of Clerkenwell, bart., who survived him. She is said to have been a shrew (Lord Raymond, Rep. 1309; Wotton, Baronetage, i. 14). Holt provided for her by a rent-charge of 700l. per annum.

Holt sat to Steele for the portrait of Verus (Tatler, xiv.), the magistrate who ‘always sat in triumph over and contempt of vice,’ who ‘never searched for it or spared it when it came before him,’ yet ‘could see through the hypocrisy and disguise of those who have no pretence to virtue but their severity to the vicious.’ As an administrator of criminal law, Holt shone by contrast to his immediate predecessors, such as Scroggs and Jeffreys, at once cruel and corrupt. He was scrupulously fair to the accused as Sir Matthew Hale. He discontinued the brutal practice of bringing the prisoner into court in irons. In cases where the law did not permit the accused person the assistance of counsel, Holt aided him personally, refused to admit evidence tending merely to blacken his character, and, while adhering to the bad practice of interrogating him, never sought to browbeat him, was tolerant of interruption on his part, during his summing-up, and in one case (that of Lord Preston tried for high treason in 1691) even permitted him to have the last word with the jury [see Graham, Richard, Viscount Preston, 1648-1695]. With regard to witchcraft, he was as sceptical as Hale was credulous, not one case of that kind which he tried resulting in a conviction; and ultimately too to treating the prosecutors in such cases as common impostors, which greatly reduced their number. He had the strong whig prejudice against standing armies and the use of the military in cases of riot, and would himself ride to the scene of disturbance accompanied by his tipstaves, and endeavour to induce the rioters to disperse. On one such occasion, when the guards had been called out, he is said to have peremptorily forbidden the officer in command to fire on the people, assuring him that if he did so, and any life was lost in consequence, he and all his men would hang for it. According to a very doubtful story, he committed to prison on a charge of sedition John Atkins, one of the religious fanatics known as the ‘French Prophets,’ whereupon John Lacy [q. v.], a friend of the prisoner, also a ‘prophet,’ called at Holt’s house, and told him that the Lord had sent him to obtain a nolle prosequi for Atkins. Holt is stated to have replied: ‘Thou art a false prophet and a lying knave. If the Lord had sent thee, it would have been to the attorney-general, for the Lord knows it is not in my power to grant a nolle prosequi; but I can grant a warrant to commit thee to bear him company, which I certainly will.’ He took a high view of the law of treason and seditious libel, holding that mere conspiracy might amount to the one offence, and mere censure of the government as corrupt to the other. He gave a liberal construction to the statute 1 Eliz. c. 2, requiring every one to attend his parish church on Sunday, holding that it did not apply so long as any other place of worship was regularly attended. He also took advantage of an error in pleading by which, in an action for the price of a negro sold in Virginia the sale was alleged to have taken place ‘in the parish of the Blessed Mary of the Arches in the ward of Cheap,’ to dismiss the action on the ground that as soon as a negro comes into England he becomes free, a point afterwards expressly decided in Sommersett’s case in 1772 (Howell, State Trials, xii-xiv; Stephen, Hist. of the Criminal Law, ii. 262, 435; Campbell, Lives of the Chief Justices, ii 142-7, 170-4; Westminster Hall, ii. 49; Cases tempore Holt, 141, 495).

Holt’s judgement in the case of Coggs v. Bernard was the first attempt ever made by an English judge to define and distinguish into rights and liabilities arising out of the several sorts of bailment. It probably suggested to Sir William Jones his essay on that branch of the law, which indeed is largely made up of comment and criticism upon it. Story (Commentaries on the Law of Bailments, pref. p. viii) calls Holt’s judgment a prodigious effort, and it is universally regarded as the leading authority on the topic. Holt also drafted, or at any rate suggested, the act of parliament (3 & 4 Anne c. 9) which first placed promissory notes upon the same footing as bills of exchange in point of negotiability, and by his decision did much to settle the law relating to those securities, then in a chaotic condition. He edited in 1708 ‘A Report of Divers Cases in the Pleas of the Crown Adjudged and Determined in the Reign of the late King Charles II. With Directions for Justices of the Peace and others. Collected by Sir John Kelyng, knt.’ (d. 1671) [q. v.]

[Foster’s Crown Law, 1762, p. 204; Campbell’s Lives of the Chief Justices; Foss’s Lives of the Judges; Welsby’s Lives of Eminent Judges; Biographica Britannica, vii. 102; Luttrell’s Relation of State Affairs, i. 268, 297, 372, 375, 490, 585; Lyson’s Magna Brit. i. 345; Levinz’s Rep. ii. 39; Sit Thomas Raymond’s Rep. p. 303; Pearce’s Inns of Court; Lord’s Journ. xiii. 520, xiv. 102, xv. 306 sqq.; Cobbett’s State Trials, vii. 807, 1130-60, 1242, ix. 241, 586, x. 41, 1351; Howell’s State Trials, xii. 125, 1179-83, 1190 sqq., xiv. 29, 695-861; Complete History of England, iii. 395 et seq., 440; Burnet’s Own Time, iv. 67 n.; Mod. Rep. iii. 100; Skinner’s Rep. pp. 252, 354; Bramston’s Autobiog. pp. 245, 276; Clarendon and Rochester Corresp. ii. 157, 252; Parl. Hist. v. 70, 366; 4th Rep. Dep.-Keep. Publ. Rec. App. ii. 184.]

J. M. R.