I’ve recently been cataloguing a great big pile of law treatises, all published between about the 1730s and 1760s. There’s nothing immediately remarkable about them, except their authorship. They’re all attributed, quite curiously, to a “late learned judge”. When I read this, obviously, I instantly believed that I’d stumbled across a bit of a mystery. The books look innocent enough, I thought, but the concealment of their authorship means that they MUST contain sordid, inflammatory and maybe even conspiratorial eighteenth century legal secrets. Maybe this “late learned judge” was the Belle du Jour of his day. So I decided to do a bit of sleuthing, a la Miss Marple, and–it didn’t take long–the real identity of the “late learned judge” is about as well kept a secret as the identity of the Stig. Some say his name was Sir Jeffrey Gilbert, and that he was a judge, baron, legal writer and international man of mystery. (All right, I’ve made the last bit up).
Gilbert was born in 1674 in Kent to a reasonably well-connected if not renowned family. The Gilberts weren’t exactly the types to get invited to a barbeque at Nell Gwyn’s house, but the young Jeffrey would’ve hobnobbed with some famous names at the time, big w(h)igs like Matthew Hale and Phillips Gybbon. Gilbert was admitted to the Inner Temple in 1692 and called to the Bar in 1698. From all accounts, he wasn’t much of a mover and shaker in the legal world. But his appointment to puisne judge of the Irish king’s bench in 1715, and shortly after to baron of the Irish exchequer, would change all that. An immediate success and a “darling of the Irish nation” (so says Wikipedia, don’t take it literally), Gilbert’s favour was short-lived. And the simple reason for this was that, in 1716, Gilbert took over a case, Annesley vs Sherlock. (NB: don’t get too excited. It isn’t that Sherlock. More’s the pity).
It had been a simple enough case at first, a dispute over land ownership which began in 1709. The first judgment went the way of Maurice Annersley, but after a successful appeal to the Irish exchequer, Mrs Hester Sherlock emerged triumphant. And then it got really interesting. Annesley, presumably a bit miffed, appealed to the British House of Lords who–keep up, now–overturned the overturning. What had been a simple judicial decision turned into a battle between the British and Irish peers over which of them was the final court of appeal in Ireland, and sitting right at the centre of that decision was our late learned judge. What ensued were tensions, hurt feelings, arguments, attempted arrests, actual arrests and, for Gilbert, presumably, one heck of a migraine, and it all culminated in the 1719 Declaratory Act. Passed by British Lords, it declared, ultimately, that the British Parliament had full legislative power over Ireland, and that the Irish House of Lords had no appellate jurisdiction, weakening Irish courts and securing Ireland’s dependency. Gilbert’s role in all this seems to be a bit accidental, and he was used as a scapegoat, but he ultimately sided with the British, and was swiftly relegated from the nation’s sweetheart to Mr Infamous as fast as you could say “he knows which side his bread is buttered on”. It’s little wonder, then, that he hotfooted it back over to England as fast as he could.
You might think that this explains Gilbert’s reticence about publishing his treatises on law–his reputation, and all that accidental controversy presumably followed him around for the rest of his career. But this can’t be the full story. For one thing, his treatises were written and edited from about 1700 and, despite nearing completion, abandoned in 1710, years before he went to Ireland. And for another, they were apparently so good that they might even have improved his reputation. Had it been completed and published in its original format, Macnair says, it would have rivalled Blackstone‘s Commentaries in “present[ing] English law from a rigorously whig standpoint strongly influenced by John Locke”. Gilbert “innovat[ed] both in the politics of his account of the common law, and in his use of civil materials” (Macnair, again). Gilbert probably returned to the work, in fits and spurts, to add bits and to change bits, but he never planned for it to be published. In fact, its publication was the last thing he wanted. Literally. In his will, he left all of his unpublished manuscripts and treatises to Charles Clarke, Esq. (no, probably not that one), “under special trust that none should be printed”.
I’m glad to say that Gilbert’s wishes were heartily and conclusively ignored (well done Mr Clarke), and what’s more, quite speedily after Gilbert’s death in 1726. The treatises–on evidence (1756), devises and revocations (1739), executions (1763), rents (1758), uses and trusts (1734) and distresses and replevins (1755)–are fragments of this planned larger work on English law. Our copies have definitely been used, even if we can’t tell by whom. Whoever decided on the moniker “late learned judge” wasn’t being generous.
There’s still a mystery here, even if it isn’t about the identity of this “late learned judge”. It’s about why he didn’t want them ever ever EVER to be published. And there’s a case for Miss Marple if ever I heard of one. Perhaps he was just a bit shy, or a bit modest. But here’s my twopenneth: I think he thought the treatises were just too serious and sensible to fit in with his reputation as a bit of a rogue and a scoundrel. I’m sure eighteenth century judges cared about their street cred too, y’know.
Flaherty, M. S. (1987). The Empire strikes back: Annesley v. Sherlock and the triumph of Imperial Parliamentary supremacy. Columbia Law Review, 87.3, pp. 593-622.
Macnair, M. (2004). Gilbert, Sir Jeffrey. ODNB, accessed here.
Wikipedia entry, here.