Yorke, Philip (1690-1764) (DNB00)

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YORKE, PHILIP, first Earl of Hardwicke (1690–1764), lord chancellor, only son of Philip Yorke (d. 1721), an attorney of Dover, by Elizabeth, daughter of Richard Gibbon, also of Dover, and widow of her cousin, Edward Glibbon, was born in Snargate Street, Dover, on 1 Dec. 1690. Through his mother the future chancellor was distantly connected with Edward Gibbon the historian, and with Edward Brydges, father of Sir Samuel Egerton Brydges [q. v.] The Yorkes of Dover claimed descent from the Yorkes of Hannington, North Wiltshire, a family of some consequence in the fifteenth and sixteenth centuries. In the course of the seventeenth century the chancellor's grandfather, Simon Yorke (1605–1683), son of Bartholomew Yorke of Calne, Wiltshire, settled at Dover. The chancellor's younger uncle, Simon, was grandfather of Philip Yorke (1743–1804) [q. v.], the genealogist. He was educated at a private school at Bethnal Green kept by Samuel Morland, a strict dissenter and sound classical scholar. His mathematical master was William Jones (1675–1749) [q. v.], father of Sir William Jones the orientalist. From school he passed straight into the office of a London solicitor, Salkeld, brother of Serjeant Salkeld, and thence, after about two years of drudgery, to the Middle Temple, where he was admitted on 29 Nov. 1708, and called to the bar on 27 May 1715. He afterwards, on 26 July 1724, migrated to Lincoln's Inn, of which in the following November he was elected bencher and treasurer, and in 1726 master of the library.

In the ‘Spectator’ of 28 April 1712 Philip Homebred discourses judiciously and not inelegantly on the absurdity of sending raw lads on foreign travel. This modest performance is ascribed by early and credible tradition to Yorke, and, if authentic, is not without biographical interest. It affords, however, no reason to regret the strictness with which he on the whole devoted himself to his legal studies.

Among Yorke's early associates were Robert (afterwards Viscount) Jocelyn [q. v.] and Thomas (afterwards Sir Thomas) Parker [q. v.] By the latter he was introduced to Lord Macclesfield, in whom he found a patron and friend. He thus made his début very early, both in the courts and in parliament, to which the Pelham interest secured his return on 21 April 1719 for Lewes, and afterwards, on 20 March 1721–2, for Seaford, which he continued to represent until his elevation to the peerage. He made his first recorded speech in the debate on going into committee on the measure declaratory of the supremacy of the British over the Irish parliament (4 March 1719–20). The speech apparently established his reputation as a constitutionalist; for a few days later he was sworn in as solicitor-general, in succession to Sir William Thompson [q. v.] On 11 June following he was knighted. He had previously been elected to the recordership of Dover, which he retained throughout life.

As solicitor-general Yorke assisted Sir Robert Raymond [q. v.] in the prosecution of the Jacobite conspirator Christopher Layer [q. v.] He also took a subordinate part in the proceedings against Atterbury and his associates [see Atterbury, Francis]. On 31 Jan. 1723–4 he succeeded Raymond as attorney-general. The impeachment of Lord Macclesfield was then impending, and in the ordinary course it would have fallen to the attorney-general to conduct it. Yorke thus found himself in a position of extreme delicacy; for what duty prescribed friendship forbade. The government respected his scruples, and permitted him to devolve the management of the impeachment upon the solicitor-general, Sir Clement Wearg [q. v.] His own professional honour was immaculate, and might well have induced him to take a severe view of Macclesfield's case; but charity and the sense of personal obligation prevailed, and his intimacy with the earl was neither ruptured nor impaired by the conviction. He showed a similar generosity towards political offenders, and, though himself the quintessence of whiggism, did not fail to support the bill for Bolingbroke's restitution (20 April 1725).

He was as much at home in the senate as in the forum, and rendered Walpole signal service by his defence of the financial expedients adopted on the rupture of diplomatic intercourse with Austria (April 1727).

Continued in office on the accession of George II, he conducted in the early years of the new reign several cases of more than ordinary public interest, among them the prosecutions of Edmund Curll [q. v.] (Michaelmas term 1727) for obscene libel, of Thomas Woolston [q. v.] for blasphemy, of William Hales (9 Dec. 1728) for the conversion of letter-franks into negotiable instruments, of the ex-wardens of the fleet Bambridge and Huggins (1729) for murder [see Bambridge, Thomas], and of Richard Francklin, publisher of the ‘Craftsman,’ for seditious libel [cf. Raymond, Robert, Lord Raymond]. His bearing in these, and indeed in all, crown cases blended vigilance and moderation in happy contrast with the excessive zeal displayed by some of his predecessors, and served as an ensample to his successors. In parliament he proved a mainstay to the government in the heated debates on the Hessian and Swedish subsidies (7 Feb. 1729), the foreign loan prohibition bill (24 Feb. 1730), the army estimates (26 Jan. 1731–2), and the excise bill (14 March 1732–3). At the bar he had now but one rival, Charles Talbot (afterwards Baron Talbot) [q. v.], and as a common-law practitioner even Talbot was his acknowledged inferior. Accordingly, on the death of Lord Raymond (18 March 1732–3), Talbot was reserved for the chancellorship, which the decrepitude of Lord King promised soon to vacate [see King, Peter, first Lord King], and Yorke, after some delay, accepted the vacant chief-justiceship, with a salary of 4,000l., double that of his predecessor. He was invested with the coif and appointed chief justice on 31 Oct., was sworn of the privy council on 1 Nov., and on 23 Nov. was created Baron Hardwicke of Hardwicke (where he had already a seat) in Gloucestershire. On 29 March 1735 he was elected recorder of Gloucester.

Hardwicke took his seat in the House of Lords on 17 Jan. 1733–4, and on 28 March following distinguished himself by his effective and dignified reply to Lord Chesterfield's strictures upon the royal message announcing an immediate augmentation of the forces. The war of the Polish succession was then raging, and served as a pretext for the measure. But Hardwicke saw in it a security for domestic tranquillity, then jeopardised by a widespread spirit of disaffection and lawlessness. He therefore resisted the reduction of the army proposed in the following year, helped Newcastle to enervate a measure prohibiting the presence of the military in boroughs at election time (13 April), and gave the sanction of his authority to their employment to suppress the sporadic riots of the summer. He met the emergency of the Porteous riots with equal firmness; and the retribution meted out by parliament to the city of Edinburgh fell far short of the measure as originally drafted by him (1737).

Sharing to the full the horror of ‘perpetuities’ characteristic of the lawyers of his day, Hardwicke suffered the excessively stringent Mortmain Act of 1736 to pass without other amendment than the exemption of purchases for valuable consideration. The narrowness of his churchmanship was evinced by the strenuous resistance which, in concert with Talbot, he offered to a measure of the same session for the amendment of the antiquated and vexatious procedure for the recovery of tithes. When Talbot was unable to attend the House of Lords, Hardwicke supplied his place as speaker. He was so sitting on Talbot's death, and was continued as speaker by an irregularly sealed commission (16 Feb. 1736–7) pending negotiations which terminated in his acceptance of the great seal, with a promise of the reversion of a tellership in the exchequer for his eldest son (21 Feb.). He retained the chief-justiceship until 8 June, when he was succeeded by Sir William Lee [q. v.] He had no sooner received the great seal than the king thrust upon him the irksome duty of bearing to the Prince of Wales a message concerning his allowance, couched in terms the harshness of which the chancellor in vain attempted to mitigate. He was equally unsuccessful in his subsequent endeavours to pour oil on the troubled waters [see Frederick Louis, Prince of Wales]. As Newcastle's confidant and mentor, Hardwicke now began to exert an influence on the course of political affairs which was far more real than apparent. He revised the Spanish convention of 1738, and after Walpole's fall he became the ordinary draftsman of the king's speech, then a much more important document than it is now. During the king's absences from the realm in 1740 and subsequent years he was a member, and by no means the least influential member, of the council of regency [see George II]. His foreign policy was on the whole pacific, but he discerned the inevitableness of the war with Spain somewhat earlier than Walpole, and went into it with more gusto. Walpole's administration, however, he defended at large and in detail against Carteret's attack (13 Feb. 1740–1), and to his nervous and impassioned eloquence was probably due the defeat of the iniquitous measure for indemnifying witnesses against the fallen minister (25 May 1742). He retained the great seal during Lord Wilmington's administration, and also on the accession of Henry Pelham [q. v.] to power. Thenceforth his policy was to maintain the predominance of the Pelham interest. In this he was perhaps justified, for the choice lay between the Pelhams and Carteret; and Carteret, though incomparably superior to Newcastle in ability, was by no means a safe man or easy to work with [see Carteret, John, Earl Granville; and Pelham-Holles, Duke of Newcastle-upon-Tyne], Newcastle was fussy and foolish, but Hardwicke well knew how to manage him, and in great emergencies was able to make his will prevail both in the cabinet and in parliament. To him was due the insertion of the attainder clauses in the act of 1744 making correspondence with the young Pretender or his brothers punishable as high treason, a strong, not to say harsh, measure which the event proved to be inefficacious, but which, considering the gravity of the crisis, is not to be condemned on that account. The rebellion itself, which Granville minimised and Newcastle magnified, while others of the regents showed signs of disaffection, Hardwicke estimated at once in its true proportions, and with quiet alertness took the necessary measures for its suppression. He also composed the dignified and patriotic speech with which the king on his return opened parliament (27 Oct.) In presiding as lord high steward at the trials of the rebel lords, Hardwicke displayed judicial impartiality. His tone, however, was neither as dignified nor as magnanimous as the occasion demanded; nor can he escape responsibility for the perversion of justice in the case of Charles Radcliffe [see Boyd, William, fourth Earl of Kilmarnock; Elphinstons, Arthur, sixth Lord Balmerino; Fraser, Simon, twelfth Lord Lovat; Mackenzie, George, third Earl of Cromarty; and Radcliffe or Radclyffe, third Earl of Derwentwater].

Hardwicke was primarily responsible for the subsequent legislative measures by which the highland costume was made illegal, the nonjuring episcopalian clergy prohibited from exercising their functions, the forfeited estates at once annexed in perpetuity to the crown, and the arbitrary and ill-defined heritable jurisdictions superseded by a regular impartial administration of justice upon the English model. As draftsman of the Regency Act passed on the death of the Prince of Wales (1751), he gave great offence to Cumberland [see George II], which he increased by stifling the investigation of the charges of jacobitism brought against the prince's entourage [see Murray, William, first Earl of Mansfield]. He supported Lord Chesterfield's reform of the calendar (1751) and carried a reform of the marriage law (1753). The latter measure relieved England and Wales from the scandal of clandestine marriages (members of the royal family, the Jewish and quaker communities alone excepted); but by requiring solemnisation according to the law and ritual of the church of England in churches or chapels already used for the purpose, and invalidating infants' marriages by license without consent of parents or guardians, it produced a crop of grievances which were only gradually removed by amending acts. In 1823 it was finally superseded by the measure which forms the basis of the present law.

On the death of Henry Pelham (6 March 1754) Hardwicke managed the negotiation which placed Newcastle at the treasury. Hardwicke himself retained the great seal, and was rewarded (2 April) for his long and eminent services by the titles of Earl of Hardwicke and Viscount Royston. He successfully defended the Hanoverian subsidiary treaties [see GEORGE II] and defeated the militia bill of 1756. In the crisis which followed the loss of Minorca he resigned office shortly after Newcastle (19 Nov. 1756). His opposition to the proposed release of Byng's judges from their oath of secrecy wore a harsh and sinister appearance, of which the worst is made by his inveterate enemy, Horace Walpole. Of Byng's guilt, however, Hardwicke had no shadow of doubt; and by his intimate relations with Lord Anson he was exceptionally qualified to form a judgment. ‘Byng,’ he wrote to Newcastle, 5 Feb. 1757, ‘would not sail down upon Galissonnière in the only way in which he was attackable because there would be risk. Not an officer or a soldier was to be landed at Port Mahon because there would be danger in it.’ There can be little doubt that these words are an echo of what he had heard from Anson, and they imply that Byng's conduct, whatever its motive, was so excessively cautious as to be tantamount to desertion in the face of the enemy. In any case, the release of a court-martial from their oath would have been a precedent of dangerous and incalculable consequence which no constitutional lawyer could be expected to approve.

On the resignation of Devonshire, Hardwicke played the part of honest broker between Newcastle and Pitt, but did not resume office. To Pitt's foreign policy he gave a general support, but on the fall of Quebec became solicitous for peace.

He was resworn of the privy council on the accession of George III, whose first speech he drafted (minus the passage in which the king gloried in the name of Briton). He approved of Bute's appointment to the northern seals (25 March 1761), and joined in the revolt against Pitt on the Spanish war question, but declined Bute's subsequent offer of the privy seal (16 Nov.). He followed Newcastle into opposition (May 1762), and took a prominent part against the government in the debates on the peace of Paris (9 Dec. 1762) and the cider tax (28 March 1763). In the Wilkes affair he was against the government on the question of general warrants, and with them on the question of privilege, but was precluded by ill-health from making any public pronouncement on either question. On both questions his view ultimately prevailed. With Wilkes personally he had no sort of sympathy. ‘North Briton’ No. 45 he held to be a seditious libel. He also held the high legal doctrine which restricted the jury in libel cases to the determination of bare questions of fact, and how far he was prepared to go in restraining the liberty of the press he had shown in the earlier case of Paul Whitehead [q. v.] by moving the standing order prohibiting the unauthorised publication of lives of peers, which was only vacated on the eve of the publication of Lord Campbell's ‘Lives of the Chancellors’ (22 July 1845).

Hardwicke died, after a lingering illness, at his house in Grosvenor Square on 6 March 1764. His remains were removed to his seat at Wimpole, Cambridgeshire, and interred (15 March) in the family vault adjoining the church. Within the church is his monument in Siena marble by Scheemakers.

Hardwicke figures as solicitor-general in Ferrers's historical picture of the court of chancery, now in the National Portrait Gallery, where is also a sketch of him as lord chancellor by an unknown hand. A copy of his portrait by Ramsay is at Lincoln's Inn. Engravings from portraits by Dahl, Hudson, and Hoare are in the British Museum (cf. his Life by Harris cited infra, and Adolphus, British Cabinet, No. 48; Cat. Second Loan Exhib. Nos. 268, 331, 788). Among Hardwicke's minor offices were those of governor of Greenwich Hospital, governor of the Charterhouse, high steward of Bristol, governor of the Foundling Hospital, and high steward (appointed 4 July 1749) of the university of Cambridge, from which he received the degree of LL.D. on 15 June 1753. He was also F.R.S. (elected 15 March 1753) and a trustee of the British Museum.

Hardwicke married, on 16 May 1719, Margaret, daughter of Charles Cocks of Worcester [cf. Somers or Sommers, John, Lord Somers], and widow of John Lygon, by whom he had (with two daughters) five sons. His heir, Philip; his second son, Charles; and his third son, Joseph, are all separately noticed. His fourth son, John, died in 1769, clerk of the crown in chancery; and his fifth son, James, in 1808, bishop of Ely. His elder daughter, Elizabeth, married George, lord Anson [q. v.]; his younger daughter, Margaret, married, in 1749, Sir Gilbert Heathcote, bart.

Hardwicke was one of the handsomest men of his day, and, though of a delicate constitution, preserved by temperate living even in old age the elasticity and mien of youth. His personal advantages, which included a musical voice, enhanced the effect of his eloquence, which by its stately character was peculiarly adapted to the House of Lords. His statesmanship was of a somewhat mixed type. While his coolness and resource during the Jacobite rebellion deserve unstinted commendation, it must not be forgotten that the rebellion itself was the consequence of the entanglement of the country in the war of the Austrian succession, for which, jointly with Newcastle, Hardwicke was responsible. His plan for the pacification of Scotland presents a strange blending of wisdom and folly. Few measures have been more judicious than the abolition of heritable jurisdictions, few less so than the proscription of the tartan. His foreign policy is perhaps fairly open to the charge of shiftiness. He was chiefly responsible for the acceleration of the peace of Aix-la-Chapelle, an end in itself eminently desirable, but accomplished in some degree at the expense of our ally, Maria Theresa. It is also a melancholy fact that in 1752 he was party to a scheme for securing the election of a king of the Romans by sheer corruption. His desertion of Pitt for Bute in 1761, and his subsequent desertion of Bute for Pitt, betray a lamentable want either of judgment or of resolution. His constitutionalism was somewhat stiff, not to say antiquated. His opposition to the reorganisation of the militia was determined by the old whig prejudice against permanent military establishments; but his solicitude for liberty did not prevent him from postponing (1757) for nearly half a century a much-needed reform of the process by writ of habeas corpus at common law, and for the liberty of the press he can hardly be said to have had any respect whatever. His reverence for the British constitution as fixed by the revolution of 1688 was almost unbounded, and he approached the task of legislation reluctantly, and only under pressure of what he believed to be urgent necessity.

Among English lawyers his position is unique. With less than the ordinary advantages of education, he proved more than competent in youth for offices which usually tax the powers of mature age. His maturity fulfilled the promise of his prime, and his later career crowned the whole with unperishable lustre. The term of his chief-justiceship was, indeed, too brief and uneventful to afford him an occasion of displaying his qualities to full advantage, but during his prolonged tenure of the great seal they found such scope as had been allowed to none of his predecessors; nor did he fail to turn his opportunity to noble account. It is hardly too much to say that in the course of somewhat less than twenty years he transformed equity from a chaos of precedents into a scientific system. This grand revolution he effected in the quiet, unobtrusive, almost imperceptible manner in which the most durable results are usually achieved. Far from despising precedent, he diligently sought for and followed it whenever practicable. But the use which he made of it was such as the Baconian philosopher makes of the instances positive and negative upon which he founds a generalisation. Each case as it came before him he reviewed in the light of all discoverable relevant authorities, and never rested until he had elicited from them an intelligible ground of decision. Where English precedents failed he drew freely upon the learning of the civilians, and, in the last resort, upon his own large and luminous sense of natural justice. Thus in Hardwicke the rational and architectonic spirit of the Roman jurisprudence penetrated English equity, with the result that in a multitude of intricate questions his decisions have traced the lines within which his successors have undeviatingly proceeded; and close and frequent scrutiny has only served to confirm their authority. His judgments, which in important cases were usually written, were always models of logical arrangement and perspicuous style. Only three of them were ever reviewed by the House of Lords, and in each case the decision was affirmed. The paucity of appeals, however, is no doubt in part attributable to the fact that throughout his tenure of the great seal Hardwicke himself was actually the sole law lord. His principal reporters are: Barnardiston, Comyns, Ridgeway, Annaly, Strange, West, Atkyns, Ambler, Vesey Senior, and Kenyon (see also ‘Collectanea Juridica,’ 1791, vol. i. No. xvii).

In the ecclesiastical patronage which, jointly with Newcastle, he dispensed, Hardwicke showed excellent judgment [cf. Birch, Thomas, D.D.; Bradley, James; Butler, Joseph; Pearce, Zachary; Secker, Thomas; Sherlock, Thomas; Tucker, Josiah]. He is said to have been avaricious, and it is certain that he appreciated wealth at its full value; but, though he amassed an immense fortune, no suspicion of corruption ever sullied his fair fame. Both in public and private life he maintained an imperturbable urbanity of manner; and, if hardly a genial companion, he was a firm friend and a good husband and father.

Hardwicke was author of ‘A Discourse of the Judicial Authority belonging to the Office of Master of the Rolls in the High Court of Chancery,’ London, 1727, 8vo; 2nd edit. enlarged, 1728 [cf. Warburton, William]. Several of his speeches are extant in pamphlet form: two on giving judgment against the Jacobite lords (London, 1746–7, fol. and 8vo), and two others—one on presenting the heritable jurisdictions bill, 17 Feb. 1746–7; the other on the third reading of the militia bill, 24 May 1756 (London, 1770, 8vo). A letter from him to Lord Royston, dated 4 Sept. 1763, giving an account of the recent negotiation between Pitt and Bute, was published in ‘Original Papers,’ London, 1785, and afterwards incorporated in the ‘Parliamentary History’ (xv. 1327).

A vast mass of his correspondence and other documents relating to him is preserved in the British Museum: in Egerton MSS. 1721 f. 85, 2184 f. 3; Stowe MSS. 142 f. 107, 254 f. 1, 750 f. 80; Additional MSS. 9828 f. 30, 11394, 12428, 15956 ff. 9–40 28051 f. 350, 29598 f. 19, 32687–779, 32842–954, 32992 f. 238, 33066 f. 205, 34524–5, and the Hardwicke Papers acquired in 1899. For other Hardwicke Papers see Woodhouselee's ‘Life of Lord Kames,’ i. 294, 314–329, and Hist. MSS. Comm. 2nd Rep. App. pp. 38–91, 3rd Rep. App. pp. 222, 404, 415, 4th Rep. App. pp. 281, 524, 6th Rep. App. p. 239, 8th Rep. App. i. 221–4, iii. 12, 9th Rep. App. iii. 35, 10th Rep. App. pp. 276, 284, 322, 449, 11th Rep. App. vii. 50–52.

[Visitation of Wiltshire, 1623, ed. Marshall, 1882; Phillipps's Visitation of Wiltshire, 1677 (1854); Genealogist, ed. Selby, new ser. iv. 69–71; Aubrey's Collections for Wiltshire, ii. 91; Hoare's Modern Wiltshire (Ambresbury), p. 35; Miscell. Geneal. et Herald. ed. Howard, 2nd ser. iii. 308–9; List of Sheriffs for England and Wales, compiled from documents in the Public Record Office, 1898; Berry's County Genealogies (Kent); Hasted's Kent (fol.), iii. 359, iv. 2, 38, 99; Lincoln's Inn Records; Official Return of Members of Parliament; Parl. Hist. vols. viii–xv.; Hist. Reg. Chron. Diary, 1727 p. 56, 1729 p. 214; Strange's Rep. p. 839; Fitzgibbon's Rep. p. 64; Walpole's Letters, ed. Cunningham; Walpole's Memoirs (George II, ed. Holland; George III, ed. Le Marchant and Russell Barker); Walpole's Cat. of Royal and Noble Authors, ed. Park; Glover's Memoirs; Waldegrave's Memoirs; Coxe's Walpole, i. 399 et seq.; Coxe's Pelham Administration; Marchmont Papers, ed. Rose, i. 29, 273–4; Chatham's Corresp. ed. Taylor and Pringle; Corresp. of John, fourth Duke of Bedford, ed. Lord John Russell; Grenville Papers, ed. Smith; Lords' Journals, xxiv. 321, 562, 564, 566, 684, 686, xxv. 4, 16, 19, lxxvii. 873; Chesterfield's Letters, ed. Mahon; Cooksey's Essays on Somers and Hardwicke; Ann. Reg. 1764, i. 122, ii. 279; Biographia Britannica; Nicholls's Recollections and Reflections; Phillimore's Life of Lyttelton; Butler's Reminiscences, 4th edit. i. 132; Nichols's Lit. Anecd. and Illustr.; Collins's Peerage, ed. Brydges, iv. 486; G. E. C[okayne]'s Complete Peerage; Burke's Peerage; Lawyers and Magistrates' Magazine, ii. 34; Law Magazine, iii. 72; Campbell's Lives of the Chancellors; Harris's Life of Lord-Chancellor Hardwicke; Foss's Lives of the Judges; Mahon's Hist. of England; Lecky's Hist. of England in the Eighteenth Century.]

J. M. R.

Dictionary of National Biography, Errata (1904), p.286
N.B.— f.e. stands for from end and l.l. for last line

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346 ii 13f.e. Yorke, Philip, 1st Earl of Hardwicke: for brother read uncle