This I consider sufficient evidence to support the charge of fraud. It may not amount to moral turpitude, but it is, in my opinion, sufficient to constitute legal fraud, and legal fraud is, in my opinion, enough to support an action of deceit."

Grose, Lawrence, and Le Blanc, Js., however, on the assumption that the defendant was a dupe, clearly held that he could not be made liable in this form of action, which supposed that the defendant had stated what he knew to be false, or that, from some bad motive, he had stated as true facts which were untrue, and the truth of which had not been investigated. As his brethren proceeded seriatim in this strain, the Chief Justice's face showed the most terrible contortions; and when they had finished he exclaimed:

"Good God! what injustice have I hitherto been doing! What injustice have I been doing!"

A gentleman who witnessed the scene says:

"It was visible to every person in court that this ejaculation was not uttered in the penitent voice of regret for any injustice which he might unconsciously have done from a mistake of the law, but in the querulous tone of disappointed pride, from finding that the other judges had presumed to think for themselves, and to question the supremacy of his opinion."

No case of witchcraft ever having come before Lord Kenyon, we do not certainly know his opinions upon this subject, but he was probably sufficiently enlightened to have held that the statutes against it having been all expressly repealed, it could not be dealt with by the criminal courts as a temporal offence. He was, however, enthusiastically devoted to the doctrine that, although the statutes against forestalling and regrating had "in an evil hour" been all expressly repealed, any such offence was still a misdemeanor at common law, and deserved to be punished with exemplary severity. Dearth in bad seasons he imputed to the combinations of farmers and the speculations of corn-merchants. Buying provisions to resell to the consumers he allowed to be legitimate commerce, as the farmer could hardly sell the produce of his farm by retail; but any buying of provisions with a view, to resell to a dealer at an advanced price, he declared had a direct tendency to deprive the poor of the necessaries of life, and therefore "blinked upon murder." The notion that the price of commodities is regulated by the proportion between the supply and the demand, he thought was only fit to be entertained by democrats and atheists. These sentiments were at the time highly popular, and contributed to raise his reputation as a great judge.

1 Note-book of a Retired Barrister.

The first case in which he prominently propounded them was the King v. Waddington,' in which he granted a criminal information against the defendant for entering into forehand bargains with hop growers to buy from them at a fixed price all the produce of their hop-gardens for a year. After a verdict of guilty, the defendant was brought up for judgment, and the legality of the conviction being questioned, Lord Kenyon said :—

"It has been contended that if practices such as those with which the defendant stands charged, are to be deemed criminal and punishable, the metropolis would be starved, as it could not be supplied by any other means. I by no means subscribe to that position. I know not whether it be supplied from day to day, from week to week, or how otherwise; but this is to me evident, that in whatever manner the supply is made, if a number of rich persons are to buy up the whole or a considerable part of the produce from whence such supply is derived, in order to make their own private and exorbitant advantage of it to the public detriment, it will be found to be an evil of the greatest magnitude; and I am warranted in saying that it is a most heinous offence against religion and morality, and against the established law of the country. So far as the policy of the system of laws has been called in question, I have endeavored to inform myself as much as lay in my power, and for this purpose I have read Dr. Adam Smith's work, and various other publications upon the same subject, though with different views of it. I do not pretend to be a competent judge in this conflict of public opinion, though I cannot help observing that many of those who have written in support of our ancient system of jurisprudence, the growth of the wisdom of man for so many ages, are not, as they are alleged by some to be, men writing from their closets without any knowledge of the affairs of life, but persons mixing with the mass of society and capable of receiving practical experience of the soundness of the maxims they inculcate."

The defendant was punished by imprisonment and a heavy fine. But Lord Kenyon's most elaborate and most applauded attack against forestallers and regraters was on the trial of an eminent corn-merchant of the name of Rusby, who stood indicted before him at Guildhall, for having bought a quantity of oats, and having resold them to another corn merchant at a profit in the course of the same day. Thus, in a most impassioned tone, and with an assumption of peculiar solemnity, he summed up the evidence:"It frequently becomes the duty of juries in this place to decide

11 East, 143, 166.

causes where the interests of individuals are concerned, but a more important duty is imposed upon you to-day. This cause presents itself to your notice on behalf of all ranks, rich and poor, but more especially the latter. Though in a state of society some must have greater luxuries and comforts than others, yet all should have the necessaries of life; and if the poor cannot exist, in vain may the rich look for happiness or prosperity. The legislature is never so well employed as when they look to the interests of those who are at a distance from them in the ranks of society. It is their duty to do so; religion calls for it; humanity calls for it; and if there are hearts not awake to either of those feelings, their own interest would dictate it. The law has not been disputed: for though in an evil hour all the statutes which had been existing above a century were at one blow repealed, yet, thank God, the provisions of the common law were not destroyed. The common law, though not to be found in the written records of the nation, yet has been long well known. It is coeval with civilized society itself, and was formed from time to time by the wisdom of mankind. Even amongst the laws of the Saxons are to be found many wise provisions against forestalling and offences of this kind; and those laws laid the foundation of our common law. Speculation has said that the fear of such an offence is ridiculous; and a very learned man-a good writer-has said, 'you may as well fear witchcraft.' I wish Dr. Adam Smith had lived to hear the evidence of to-day, and then he would have seen whether such an offence exists, and whether it is to be dreaded. If he had been told that cattle and corn were brought to market, and there bought by a man whose purse happened to be longer than his neighbor's, so that the poor man who walks the streets and earns his daily bread by his daily labor could get none but through his hands, and at the price he chooses to demand; that it had been raised 3d., 6d., 9d., 1s., 2s., and more a quarter on the same day, would he have said there is no danger from such an offence? Gentlemen, we are not 'legal monks,' as was said in another place, but come from a class of society that, I hope and believe, gives us opportunities of seeing as much of the world, and that has as much virtue amongst its members as any other, however elevated. It has been said that in one county -I will not name it—a rich man has placed his emissaries to buy up all the butter coming to the market; if such a fact does exist, and the poor of that neighborhood cannot get the necessaries of life, the event of your verdict may be highly useful to the public."

1 Peake, N. P. Cas. 189.

A verdict of guilty being instantly pronounced, Lord Kenyon said: "Gentlemen, you have done your duty, and conferred a lasting obligation on your country." The Defendant was sentenced to a heavy fine and long imprisonment.

The cry was then as strong for protection against forestallers as it has more recently been for protection against foreign importation; and so general was the agitation that corn-merchants were in great danger of being torn to pieces by judge-led mobs. I am ashamed to say that most of the puisne judges participated in the hallucination of the Chief Justice of the King's Bench, insomuch that Sydney Smith thus wrote in his old age:

"This absurdity of attributing the high price of corn to the combinations of farmers and the dealings of middle-men was the common nonsense talked in the days of my youth. I remember when ten judges out of twelve laid down this doctrine in their charges to the various grand juries on their circuits."

CHAPTER XLV.

CONCLUSION OF THE LIFE OF LORD KENYON.

LORD KENYON had been very temperate in his diet, and had enjoyed uninterrupted health till he entered his 70th year. He then began to show symptoms of decay, which some attributed to his defeat in Haycraft v. Creasy, and some to the dangerous illness of his eldest son. The Chief Justice was exceedingly amiable in all the relations of domestic life, and to this promising young man, who was expected to be the heir of his vast accumulations, he was particularly attached.

In the autumn of 1801, there was imposed upon him the melancholy duty of closing the eyes of him from whom [A. D. 1801.] he had expected that the pious office would be performed for himself. When gazing into the open tomb of his first-born, he is said to have exclaimed: "It is large enough for both."

On the first day of next Michaelmas term the Chief Justice returned to his court a sorrow-stricken, heart-broken man. He was hardly able to hold up his head; not even a "regrating" case from the Oxford Circuit could excite him; and as soon as term was over, leaving the Nisi Prius business to be done by Mr. Justice Le Blanc, he went into Wales, in the hope of being recruited by the air of his native mountains. He rallied a little, and came back to London on the approach of Hilary Term; but he was only able to take his seat in court for a single day.

As a last resource he was advised to try the waters of Bath. All would not do. The appointed hour for the termination of his career was at hand. He had now an attack of black jaundice, and it was found that his constitution was entirely exhausted. For several weeks he lay in bed, taking hardly any sleep or nourishment. However, he suffered little pain; and [A. D. 1802.] having retained his mental faculties to the last, on the 4th of April, 1802, he expired, perfectly resigned to the will of God, and gratefully expressing his sense of the many blessings which he had enjoyed. His remains were conveyed to the family cemetery in the parish of Hanmer, and there deposited in the same