The Sun.
London, England, 1859-07-06 00:00:00

- ..
--ii
........7..i.;:g,..,...:::. 4:406,....74
43
ril
..;,..,„,,,,.:-.;.-• ~. .! •
AA • -,A,v,--.,.... 7; A
. : ',•' ev.'" . ~,,., .•i•
-,,,,„:,. ~,,,t.-• , • ' -
, , , . . ~,,,,..u•••
-----,,
t? , 4.0 -,y.4 Ea est„,,,tifilkfivi&x,... -
- ,W,
~ • -----, ' -.. ,
~,.
~..Ni-. , ,;1-0 , :
~,,,,'.,• "._
''t4", "'",,- . 1 1. / ';--
(
- t N.. .1.--
...„04,
.. / I,*l- -- /Z-T----- 4- 7 ~v.: .„ ~0., ~......, cc,_,- ~-, ,--
~, ~ tz --a •74,, *a ,40.,r_(itt' "IROIT. rA, v ;;4' *'-'
''
\_-•1----%4. ' . *4146,//' -DIFI '-,-.' *lrle4 lti'''° •';' • --
F
~ 4- •, ' • ,01/ 82 L ........ , ~.
...._.,..4,-:.,,-7' -

on the other side.

PRICE 4D• STAMPED, SD.

LAW, INTELLIGENCE-eTuly 5.

COURT OF EXCHEQUER.
(Sittings at Guildhall, before Lord Chief Baron
Pollock and a Special Jury.)
SWINFEN V. LORD CHELMSFORD (LATE SIR F.
THESIGER.)

The case for the plaintiff having closed,
The Lord Chief Baron asked Mr. Kennedy if he
wished_to offer any. evidence on the second count,
which was to the effect that the judge illegally. ex-
pressed hits►self to the defendant,• Sir F.-Thesiger,
the counsel for Mrs. Swinfen, that the case was

going against him,
,and that upon such communica-
tion he, Sir Frederick, compromised the matter.
Mr. Kennedy said that he had proved every
word of the count.

Sir F. Kelly, in a court literally crammed to suf-
focation by members of the bar, rose to reply, and
asked if there- was any evidence whatever to go to

the jittry: '
The, rord Chief Baron said that he had not the
slightest ddubt that there' was not a particle of
evidence upi the second count.
proceeded with his address, and
said he hardly knew what course to take. For the
first aim in his experienee, extending over half the
period allotted to man, he heard a gentleman de-
nounced by a member of the bar in language ill-
befitting even the atmosphere of the Old Bailey.
A nobleinan and a gentleman, himself one of the
brightest ornaments in his profession, had been
stigmatised in . a manner that was perfectlY shock-
ing to hear.. Even the Lord Chin JuS-iice3tilhn'
whom they all respected, had not escaped, whilst

the very judge who tried the case had been held up
as a brute for his conduct by the learned counsel

Mr. Kennedy appealed to the Court whether he
had used such a phrase.
Sir F. Kelly proceeded to say that such was the
way in which the case had been conducted. He

would tell the jury that this case was, one of the
greatest importance, involving as it did the liberty
and independence of the law. Whenever that liberty
and independence disappeared, whenever juries
could be intimidated and controlled, they might rely
upon it that a blow would be struck at the liberty
and independence of the subject which would not
be easily recovered. The noble lord who was

the defendant in this action was charged, at the
time he was counsel for the plaintiff, with
having betrayed the interest of his client for base
purposes, and had degraded his profession—a
really criminal charge. And it was brought against
a man who, while he was a member of the bar, had
never done any one act to sully his own honour or
to cast a blot on his fair fame. The jury were

La" _
aware that the whole question of the trial in which
the noble lord was counsel arose on the construction
of a will which was made by Mr. Swinfen on the
7th of July, 1854. The heir-at-law filed a bill in
equity to set aside the will, and. was supported by
the other members of the family. The learned
counsel then entered into a resume of the Swinfen
case, which has been so many times before the
public. The ground upon which the noble lord
had acted for the cornprornise was, that evidence
would, after the first,day, have to be adduced before
the jury which would show that when Mr. Swin-
fen, sen., made his will he was over 80 years of

age, confined to his bed, and utterly unable to
manage, his own affairs. Sir F. Thesiger felt that
he would not be able to contend successfully against

testimony of this kind, coming, too, from the
mouths of his own witnesses—he felt that when

they would prove that within a few days 6f the
making of the will by the testator, the memory of
the latter was go far gone that he could not be
made to understand that his only son was dead ;
his case was gone, and the best thing to do was to
compromise iton the most favourable conditions he
could for his client. The other three counsel in the

case perfectly agreed with the course that had been
taken by Sir F. Thesiger. What decided Sir F.
Thesiger was certainly what he had learned from
the judge who had tried the case, in a few words
they had with each other at the close of the first
day's trial. Mr, Justice Cresswell, when at the
bar, was a very old friend of Sir Frederic Thesiger,
and when one had gone on the bench and the other
remained at the bar that friendship continued.
The words upon which such strange comments
were made were these :—Mr. Justice Cresswell'had
said to Sir F. Thesiger, in a very confidential way,
" Cockburn made a nice attack on your
lady witnesses yesterday." The learned counsel
then feared that this circumstance, coupled with
the evidence before alluded to, would give his case
a blow from which it could not possibly recover.
Lord Ohelmsford, who had sat and heard all that
had been said about himself, had been charged as a
criminal by Mr. Kennedy, and one whom he (Mr.
Kennedy) had brought to the bar of justice. Mr.
Kennedy had dared to impute to his lordship that
he had endeavoured to stifle inquiry. To stifle in-
quiry ? Why, Lord Chelmsford would be called
before them, and Mr. Kennedy would have the
opportunity of proving his charges out of his lord-
ship's mouth, not only upon that, but every part of
his conduct. Mr. Whitmore, another counsel in
the case, was present when the interview was held
between Mrs. Swinfen and Sir Frederic Thesiger,
and strongly urged her himself to accept the com-
promise offered. Mr. Whitmore would also be
called to state his version of the transaction. He
even complimented Sir Frederic upon his discre-
tion in not alluding to the remarks of the judge in
reference to the attack on the lady witnesses. Mrs.
Swinfen went home; and the next morning sent
down a telegram thus—" The offer is refused."
That at once put an end to all further negotiations,
and he was prepared to do his duty by his client.
Sir A. Cockbirn never made any offer whatever,
but it is quite possible that they had had some con-
versation on the matter. Counsel often have con-
versations, on 'these will cases especially. They say,
It is a pity that these people, who are relatives,
should litigate this. They will go on from trial to
trial until the whole of this little property is
wasted." Such conversations as that occur at all
times in these cases between counsel, and it was
probably such a one as led to the compromise in
question. From the time a counsel is retained in a
case, if there be one object more than another to
which political feeling and private friendship are
forborne for the moment, and laid aside, it is the
great object of getting a verdict for his client. Every
counsel knows what it is, and no counsel would
dare to compromise a case if he could by any
means obtain a verdict. It is the great object
for which they all struggle. Their reputation
and their peace of mind are bound up in their
success, and if they think there is no chance of a
verdict, the next thing they endeavour to do is to
make the best terms they can for their client. Sir
Frederic Thesiger was opposed by his great rival,
Sir Alex. Cockburn, now the Lord Chief Justice of
I England, with all that skill for which he was so
famed, and he well knew that when Mrs. Charles
Swinfen was called the cause was gone. The Lord
Chief Justice would be called, and if Mr. Kennedy
dared to ask the question from him, the judge
would tell him that the verdict was in his hands,
but he had told the heir-at-law that Mrs. Swinfen
ought to be liberally dealt by, and hence the offer
of £l,OOO a-year. If there was any fraud in the
conduct of Sir Frederic Thesiger, then the
other counsel, judge, and jury were equally. guilty.
Mr. Kennedy had charged Sir Frederic Thesiger
that, for the sake of attending to a case at Swan-
sea, he had " robbed" his client of her estate. Dur-
ing the 35 years he (Sir F. Kelly) had been a mem-
ber of the bar of England he had never heard such
an imputation thrown upon any one connected with
the law, to say nothing of a man who had run
charge
through such a brilliant career at the bar as Sir
Frederic (Lord Chelmsford) had done. He re-
grettedef England.
to say that such a degrading
too,
had been made by a member of the bar
Lord Chelmsford was then called and examined
by Sir F. Kelly. He said—l was engaged as lead-
ing counsel for the plaintiff in the case of Swinfen
v. Swinfen. Two ladies—Mrs. Rowley and Mrs.
Leichman_were examined on the first day. I did
not feel quite satisfied with the course things were
taking. In their cross-examination a
letter
was
read, which did not please me. I
watched the jury,
and I thought the impression made
other prejudicial to the case I had in hand. At
the close of the day I went up to shake hands with
the judge, who was a very old friend of mine.
Some remarks were made by him, but what they
were I don't recollect. Sir Cresswell Cressweil met
me the other day, and I think it but fair to state
it, and told me what T said, but I don't recollect
it. The commun. •
ication with the judge was more
that of a private friend, but I believed him to have
an unfavourable • •
impression of the case. I saw Sir
A. Cockburn in Court, and told him it was' a great
pity that these
people should litigate in this way,
as they were relatives. He said that they, were
not unfriendly disposed. I then communicated
with counsel and attorneys, . and I, told them this
matter should be arranged if it could. I ordered
Mrs. Swinfen to be sent for, and she came. Mr.
Cole was present. I most certainly deny stating
that any offer whatever had been made by the other
side. I never said I had received a communication