Page:Dictionary of National Biography volume 32.djvu/390

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Lee
Lee
384


and he was designated for the next vacant judgeship. Accordingly, on the removal of Keynolds to the exchequer [see Reynolds, James, 1686-1739] he was called to the degree of serjeant-at-law 5 June 1780, and the next day sworn in as a puisne judge of the king's bench. He declined the customary honour of knighthood, and only accepted it on his elevation to the chiefjusticeship of his court, in succession to Lord Hardwicke, 8 June 1737, when he was sworn of the privy council Though not exactly a great judge, he proved himself able, patient, and impartial. As long as Lord Hardwicke presided in the king's bench, Lee's functions were almost entirely reduced to expressing his concurrence with the decisions of his chief; it was only as chief justice that he had scope to display to full advantage his thorough and minute knowledge of the common law and his strict judicial integrity. His name is associated with few cases of public interest. He decided, however, that a female householder is entitled to vote for, and eligible to serve as, the sexton of a parish, and thus laid the foundation of the parochial and municipal franchises of women ; and by a series of decisions he did much to place the law of pauper settlements on a satisfactory basis. He presided over the special commission which sat at St. Margaret's, Hill Street, Southwark, in July 1746, to try the Jacobite rebels, and in the course of these trials decided four important points of law : (1) that a commission in the army of a foreign state does not entitle the holder, being an Englishman, to be treated as a prisoner of war; (2) that no compulsion short of present fear of death will excuse participation in a rebellion ; (3) that Scotsmen born in Scotland were not entitled under the Act of Union to be tried in Scotland ; (4) that the acceptance of, and acting under, a commission of excise from the Pretender was an overt act of treason. His direction to the jury in the case of William Owen, tried before him at the Guildhall on 6 July 1752 for seditious libel, has been seriously criticised, but was the result of a strictly legal, if somewhat narrow, view of the respective functions of judge and jury. Owen had published a pamphlet animadverting on the conduct of the House of Commons in the case of the Hon. Alexander Murray [q. v.], and Lee, in summing up, directed the jury in effect that it was not for them to determine whether the pamphlet was or was not libellous, that being a matter of law ; but if they were satisfied that it had been published by the defendant, they ought to find him guilty. The jury, however, refused to take the law from the chief justice, and, though there was no doubt of the fact of publication by the defendant, acquitted him. Upon the death of Henry Pelham, 6 March 1754> Lee was appointed chancellor of the exchequer ; but merely ad interim, and without a seat in the cabinet. Lee died of an apoplectic stroke on 8 April following. He was buried on the 17th in Hartwell Church, where a monument was placed to his memory.

Horace Walpole calls Lee a creature of Lord Hardwicke. This appears to be altogether unfair; although his intimate Mendship with the chancellor probably helped his advancement, his abilities were very highly esteemed by better judges than Walpole. Lord Hardwicke, writing shortly after his death, characterises him as 'an able and most upright magistrate and servant of the crown and public.' His reporter, Burrow, after ascribing to him almost every private virtue, adds that on the bench ' the integrity of his heart and the caution of his determination were so eminent that they never will, perhaps never can, be excelled.' The 1744 edition of the ' Reports of Sir John Comyns 'is dedicated to him in very flattering terms. He was a correspondent of Zachary Grey [q. v.], and a friend of Browne Willis [q. v.], the celebrated antiquary. Some excerpts from his note-books and almanacks, published in the 'Law Magazine.' vols, xxxviii. and xxxix., under the title 'Jotting Book of a Chief Justice,' show that he had read widely and carefully beyond the limits of his professional studies, and was well versed in moral and metaphysical science. His unpublished commonplace book, still preserved at Hartwell, in more than a hundred volumes, attests the assiduity and method with which he prosecuted his studies. He was of a genial and even jovial temperament ; thought good cheer and 'a merry, honest wife the best sort of medicine, and hospitality the best sort of charity. He never spoke in parliament, but steadily supported by his vote the principles of the revolution. For this he would never give any but the humorous reason that he came in with King William (meaning that he was born in the year of that monarch 8 accession), and so was Dound to be a good whig.

Lee married twice : first, Anne, daughter of John Goodwin of Bury St. Edmunds, who died in 1729; secondly, on 12 May 1738, Margaret, daughter or Roger Drake, and widow of James Melmoth, described as 'an agreeable young lady of 25,000l. fortune.' She died in May 1752, and was buried in Hartwell Church". By his first wife Lee had issue an only son, William, who succeeded to the manor of Totteridge, which Lee had purchased in 1748. He had no issue by his