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Charles Abbott , first Lord Tenterden (1762-1832)

This article was written by John Macdonell and was published in 1885

Charles Abbott , first Lord Tenterden (1762-1832), lord chief justice, was born 7 October 1762, at Canterbury, in a house on the left-hand side of the west entrance to the cathedral. He was, to quote the epitaph which he wrote for his tomb two months before his death, Filius natu minor humillimis sortis parentibus, patre vero prudenti, matre pia ortus, that is, he was the second son of a respectable hairdresser and wig-maker, among whose patrons were the clergy of the cathedral. As a lad Abbott is said to have helped his father in his business. Lord Campbell, who, in his Lives of the Chief Justices, gives the most complete account of him, describes Abbott as a ‘scrubby little boy, who ran after his father, carrying for him a pewter basin, a case of razors, and a hair-powder bag.’

Having been taught to read at a dame's school, he entered at seven the King's or Grammar School, where many celebrated men have been educated. Abbott's ability was soon discovered by his teacher, Dr. Osmond Beauvoir. The late Sir Egerton Brydges, who was Abbott's schoolfellow, states that ‘from his earliest years he was industrious, apprehensive, regular and correct in all his conduct, even in his temper, and prudent in everything.’ Another schoolfellow describes him as ‘grave, silent, and demure; always studious and well-behaved.’ The same informant says: ‘I think his first rise in life was owing to a boy of the name of Thurlow, an illegitimate son of the lord chancellor, who was at Canterbury Free School with us. Abbott and this boy were well acquainted, and when Thurlow went home for the holidays he took young Abbott with him. Abbott then became acquainted with Lord Thurlow, and was a kind of helping tutor to his son; and I have always heard, and am persuaded, that it was by his lordship's aid that he was afterwards sent to school with us.’

About the age of fourteen he was put forward by his father as a candidate for a place as singing-boy in the cathedral. But his voice being husky, another boy was preferred. In after years, as chief justice, he went the home circuit with Mr. Justice Richardson, and visited the cathedral with his brother judge. Pointing to a singer in the choir, he said, ‘Behold, brother Richardson, that is the only human being I ever envied. When at school in this town we were candidates for a chorister's place; he obtained it; and if I had gained my wish, he might have been accompanying you as chief justice, and pointing me out as his old schoolfellow, the singing-man.’

Abbott's proficiency in Latin verse was remarkable; and at seventeen he was captain of the school. His father wished that his son should be apprenticed to his trade, and the indentures were actually signed, sealed, and delivered. Fortunately the trustees of the school saw their way to increase the amount of an exhibition, and he was thus enabled to go to Oxford. He entered Corpus Christi College on 21 March 1781, where he obtained a scholarship. In 1783 he competed for the chancellor's medal for Latin composition, the subject being the siege of Gibraltar, Calpe obsessa. He failed to get the prize, being beaten by Bowles the poet, then a scholar of Trinity. But in 1784 he won it by his verses on Globus Aerostaticus, the voyage in a balloon of Lunardi, who had about that time introduced the air-balloon into England. In 1786 he gained the chancellor's medal for English composition by an essay On the Use and Abuse of Satire. This essay, which is printed in the first volume of the Oxford Prize Essays, begins in the approved prize style of the period: ‘In the early ages of nations, as in the youth of individuals, before the authority of the judgment is confirmed by the establishment of acknowledged truths, the passions are ever the most powerful springs of human action.’ The essay deals separately with personal, political, moral, and critical satire. Clear as one of Lord Tenterden's judgments, it shows considerable reading; and it ends with the cautious remark, characteristic of the author: ‘Perhaps we need not hesitate to conclude that the benefits derived from satire are far superior to the disadvantages, with regard both to their extent and duration; and its authors may therefore be deservedly numbered among the happiest instructors of mankind.’

In 1785 Abbott took his degree of B.A., and he was soon afterwards made a fellow of his college and tutor. As private tutor of Mr. Yarde, son of Mr. Justice Buller, he became acquainted with that judge, who strongly urged him to go to the bar. ‘You may not possess,’ he said in his pithy fashion, ‘the garrulity called eloquence, which sometimes rapidly forces up an impudent pretender, but you are sure to get early into respectable business at the bar, and you may count on becoming in due time a puisne judge.’ He took Buller's advice. On 16 November 1787 Abbott was admitted a student of the Middle Temple. He took chambers in Brick Court, and attended for several months the offices of Messrs. Sandys & Co., attorneys, in Craig's Court. Afterwards he entered the chambers of Mr. Wood, who had been the instructor of Lord Ellenborough and several other judges, and who was one of the chief pleaders of his day. Having there mastered the science of special pleading, he practised for several years as a special pleader under the bar.

On 13 July 1795 he married Mary, daughter of John Langley Lamotte, of Basildon, Berkshire. He had four children, two sons and two daughters, John Henry, Mary, Catherine Alice, and Charles. His success as a special pleader induced him to go to the bar, or, to use his own characteristic words, to take that ‘leap into the turbid stream of forensic practice in which so many sink, while a few — rari nantes in gurgite vasto — are carried successfully along to riches and honour.’ Called to the bar by the Inner Temple in Hilary term 1796, he joined the Oxford circuit, and, notwithstanding his lack of most of the qualities of an advocate, he obtained a large practice. Appointed junior counsel to the treasury, he drew the indictments and was employed as counsel in several important state trials. In 1801 he was made recorder of Oxford. In 1802 he published his work on the Law relative to Merchant Ships and Seamen, a subject which had been suggested to him by Lord Eldon. The choice was fortunate. Malynes's work on mercantile law had been published as far back as 1622, and considerably more than a century had elapsed since the appearance of Molloy's book, almost the only work on maritime or mercantile law to be found at the beginning of this century in an English lawyer's library. Abbott drew upon materials which had hitherto been neglected by most writers and judges. The civil law, the maritime codes of foreign countries, the Notabilia of Roccus, and the treatises of Pothier and Emerigon were consulted. It may appear strange that so important a work as the Consolato del Mare had never been seen by Abbott, which he admits was the case. But the book displayed much learning.

His treatment of legal questions was novel. To appreciate the value of his work, one must know the character of English law books at the time of its appearance. They were, with scarcely an exception, crude compilations of cases. A writer who sought to illustrate principles rather than to collect the decisions of courts and the acts of the legislature justly earned high praise. The book was successful to an extent not often realised by a legal author. It brought Abbott, tradition says, many briefs in commercial cases. It has passed through twelve editions. In this country it was edited by Mr. Justice Shee, and in the United States by Mr. Justice Story; and it is still quoted as a book of authority by lawyers, who regard it as unsurpassed in its clear and simple enunciation of principles. In 1807 Abbott's practice had so grown that he returned his income as £8,026 5s. His success was not won by the display of brilliant forensic abilities. ‘He had no striking talents,’ says Lord Brougham. ‘He never was a leader at the bar.’ ‘I believe,’ says Lord Campbell, ‘he never addressed a jury in London in the whole course of his life.’ Lord Campbell adds that on the few occasions when Abbott had to address a jury on circuit he showed ‘the most marvellous inaptitude for the functions of an advocate, and almost always lost the verdict.’

He was offered in 1808 a seat on the bench, but his practice was so lucrative that he declined it. Aware of his deficiencies as a leader, he did not take silk. Owing to bad health he seems at one time to have thought of quitting his profession; but on the death of Mr. Justice Heath, in February 1816, he accepted a puisne judgeship in the court of Common Pleas. As a serjeant he gave rings with the characteristic motto labore. He remained for a short time in that court, which was uncongenial to a man of his quiet demeanour. On the death of Mr. Justice Le Blanc, in May of the last year, he was moved into the King's Bench. There his rise was rapid. Admonished by the decay of his faculties, Lord Ellenborough resigned the office of chief justice in September 1818. There was a difficulty in choosing a successor. Sir Samuel Shepherd, the attorney-general, was unpopular and in bad health; Gifford, the solicitor-general, was too young. In these circumstances Abbott was selected, though with some misgiving. ‘We endeavoured to do the best we could,’ wrote Lord Eldon to Lord Kenyon after the appointment was made. ‘We could not do what would have been really unexceptionable. It was impossible’.

On 4 November 1818 Sir Charles Abbott was made chief justice. He had the good fortune to be supported by puisne judges of rare ability, such as Bayley J., Holroyd J., and Littledale J. Speaking of the King's Bench in that period, Lord Campbell observes: ‘Before such a tribunal the advocate becomes dearer to himself by preserving his own esteem, and finds himself to be a minister of justice instead of a declaimer, a trickster, or a bully. I do not believe that so much important business was ever done so rapidly and so well before any other court that ever sat in any age or country.’ Abbott's judgments, which are for the most part reported in Maule and Selwyn's, Barnewall and Alderson's, and Barnewall and Cresswell's Reports, are distinguished by their perspicuity and moderation, clearness of reasoning, and absence of futile subtleties. Among the many judgments which he delivered in cases of importance may be mentioned The King against Burdett, a leading case in the law of libel as to what constitutes publication, and what evidence may be given in mitigation of punishment of such an offence; Laugher v. Pointer, an important authority as to a master's liability; ‘Blundell v. Catterall’, relating to the alleged public right of bathing in the sea; ‘Rex v. Harvey’, dealing with the question how far a malicious intention is necessary to constitute a libel. From the judgment in the first of these may be quoted a sentence which indicates the spirit in which Abbott was wont to approach questions of law: ‘In matters that regard the conduct of men, the certainty of mathematical demonstration cannot be required or expected; and it is one of the peculiar advantages of our jurisprudence that the conclusion is to be drawn by the unanimous judgment or conscience of twelve men conversant with the affairs and business of life, and who know that where reasonable doubt is entertained it is their duty to acquit, and not of one or more lawyers, whose habits might be suspected of leading them to the indulgence of too much subtility and refinement.’

Abbott presided at several important state trials, among others those of Thistlewood and the Cato Street conspirators, Hone for blasphemous libel, and Cobbett for libel; and he discharged his duties with moderation and dignity. In April 1827 he was raised, at the instance of Mr. Canning, to the peerage under the title of Baron Tenterden of Hendon. He rarely took part in political discussion in the House of Lords. He confined himself for the most part to debates on legal topics, respecting which his opinion carried weight. He was not an active law reformer. He did not sympathise with or aid the reforms in the criminal law which were carried out by Romilly and Lord Mackintosh.

In 1830 he opposed the proposal to abolish punishment of death for forgery. But he did not a little to improve the administration of some parts of the common law. In 1830 he introduced into parliament five bills based upon the reports of the commissioners who had been appointed to inquire into the means of improving the administration of justice. His name is associated with certain valuable measures: e.g. 9 Geo. IV, c. 14, an act for rendering a written memorandum necessary to the validity of certain promises; 9 Geo. IV, c. 15, which was intended to prevent a failure of justice by reason of variations between written or printed evidence and the recital of them upon the record; and 2 and 3 Will. IV, c. 71, for shortening the period of prescription. A strong tory in politics, he was conspicuous in his opposition to the Corporation and Test Bill, the Catholic Relief Bill, and the Reform Bill. His resistance to the last two measures was thoroughgoing. ‘Can I support,’ he said, with reference to the Catholic Relief Bill, ‘a measure which I am sure by a broad and direct road leads to the overthrow of the protestant church?’ His hostility to the Reform Bill was even more emphatic. He could never, he said, consent to go into committee upon this bill, because if he were in the committee he should feel himself compelled by a sense of duty to move that every word of the bill after the word ‘that’ be erased from it. He predicted that after the passing of the bill nothing would be left for the house but to obey the dictates of the commons. ‘Never,’ he said, in conclusion, ‘shall I enter the doors of the house after it has become the shadow of its departed greatness.’

His health had long been impaired, and in 1832 it broke down under the strain of his duties. Lord Brougham states in his memoirs that he met Lord Tenterden at the recorder's council and besought him to go home. ‘Go, chief justice. You will kill yourself.’ ‘It is done already,’ was his answer. Though ill, he presided over the trial at bar in 1832 of Charles Pinney, the mayor of Bristol, for misconduct and neglect of duty on the occasion of the riots in that city. He could not help betraying impatience during the proceedings, and on the third day he was confined to his bed by an attack of inflammation. He returned home on 25 October, and died on 4 November. His last words, uttered when almost unconscious, indicated that he was thinking of the duties which he had so long discharged: ‘Gentlemen, you are all dismissed.’ He was buried, at his own request, in the Foundling Hospital, of which he was a governor.

In no sense or capacity was Lord Tenterden great. As a lawyer he was surpassed in acuteness and erudition by some judges of his own time. He was totally destitute of eloquence, and rather despised it as an impediment to justice. He showed to disadvantage in an office which Mansfield had recently filled; and it was a grave defect in his conduct as chief justice that he granted the perilous remedy of criminal informations in circumstances in which Hale and Holt would have refused it. But he exhibited rare good sense and supreme reasonableness. He had no pleasure in deducing from the common law paradoxes offensive to justice. The court over which he presided was respected; and his decisions are still referred to with deference

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