Jeffrey Gilbert (judge)
Encyclopedia
Jeffrey Gilbert was an English judge
and author who was Lord Chief Baron of the Exchequer
in both Ireland
and England
and later became renowned for his legal treatises, none of which were published in his lifetime.
in Kent, son of William Gilbert, a farmer; his mother Elizabeth Gibbon is said to have been a cousin of the great historian Edward Gibbon
. He was called to the Bar in 1698 and earned some fame as a law reporter. He was an outstanding scholar, his interests including theology and mathematics as well as law: shortly before his death he became a Fellow of the Royal Society. He enjoyed the patronage of William Cowper, !st Earl Cowper
, and soon after Cowper's reappointment as Lord Chancellor in 1714 was sent to Ireland as a judge of the Court of King's Bench.
died suddenly. It appeared that no Irish-born judge was prepared to take on this onerous appointment which would involve clearing a large backlog of cases and reforming practices described as " confusion and disorder almost beyond remedy," and accordingly Gilbert received the promotion.His early years in Ireland were happy : he received an honorary degree from the University of Dublin and was hailed in ballads as the" darling of the nation"
was notable only for the determination of both parties to win: in pursuit of this aim they opened the senitive issue of whether the Irish House of Lords
or the British was the final court of appeal in Ireland.The Exchequer had found in favour of Maurice Annesley and ordered that he be put in possession of the lands. After a long delay Hester Sherlock's appeal was heard by the Irish peers who reversed the Exchequer and made a decree in her favour. Annesley then appealed to the British House of Lords which restored the original Exchequer order and apparently questioned the right of the Irish House to hear the appeal at all.The Exchequer ordered the Sheriff of Kildare to put Annesley in possession and when he refused censured him. A similar order was served on Mrs. Sherlock; she again appealed to the Irish House which summoned the Barons of the Exchequer to explain heir conduct. Asked what orders he had received from London Gilbert unwisely relied on the privilege against self-incrimination.The Lords were infuriated and although the Lord Chancellor urged moderation voted by a large majority to commit the Barons to the custody of Black Rod
; as a further insult they were ordered to pay for their upkeep.
, William King
, and subjected to a campaign of petty persecution.
, but understandably preferred to return to England. he became a Baron of the Exchequer in 1722 and a Commissioner of the Great Seal in 1725. The same year he became Lord Chief Baron but almost at once became seriously ill; he died at Bath in 1726 and was buried in Bath Abbey
.He is not known to have married.
was warm in his praise, calling it a book which it was impossible to abridge without destroying its beauty. Its influence declined after Jeremy Bentham
singled it out for attack in his own Treatise on Evidence ( 1825 ).Today it is still regarded as a landmark in the development of evidence as a branch of the law in its own right. Central to the work is the best evidence rule
: despite a few earlier references Gilbert can fairly be said to have invented it. He argued:" a man must have the utmost evidence the nature of the fact is capable of..there can be no demonstration of the fact without the best evidence that the fact is capable of" :.He formulated the idea of weights or hierarchy of evidence: written evidence has more weight than verbal, and an original document has more weight than a copy ( the last part of the rule is still good law ).
said he had learned much from it. His Treatise on Rents was regarded as an authority by the Supreme Court of Canada
as late as 1951.
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
and author who was Lord Chief Baron of the Exchequer
Lord Chief Baron of the Exchequer
The Chief Baron of the Exchequer was the first "baron" of the English Exchequer of pleas. "In the absence of both the Treasurer of the Exchequer or First Lord of the Treasury, and the Chancellor of the Exchequer, it was he who presided in the equity court and answered the bar i.e...
in both Ireland
Ireland
Ireland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth...
and England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
and later became renowned for his legal treatises, none of which were published in his lifetime.
Family and early career
He was born at GoudhurstGoudhurst
Goudhurst is a village in Kent on the Weald, about south of Maidstone.It stands on a crossroads , where there is a large village pond. It is also in the Cranbrook School catchment area....
in Kent, son of William Gilbert, a farmer; his mother Elizabeth Gibbon is said to have been a cousin of the great historian Edward Gibbon
Edward Gibbon
Edward Gibbon was an English historian and Member of Parliament...
. He was called to the Bar in 1698 and earned some fame as a law reporter. He was an outstanding scholar, his interests including theology and mathematics as well as law: shortly before his death he became a Fellow of the Royal Society. He enjoyed the patronage of William Cowper, !st Earl Cowper
Earl Cowper
Earl Cowper was a title in the Peerage of Great Britain. It was created in 1718 by George I for William Cowper, 1st Baron Cowper, his first Lord Chancellor, with remainder in default of male issue of his own to his younger brother, Spencer Cowper...
, and soon after Cowper's reappointment as Lord Chancellor in 1714 was sent to Ireland as a judge of the Court of King's Bench.
Irish career
Soon after his arrival the Irish Chief Baron Joseph DeaneJoseph Deane
Joseph Deane was an Irish politician and judge who became Chief Baron of the Irish Exchequer.- Background :He was born at Crumlin, Dublin, son of Joseph Deane and his wife Elizabeth Parker, daughter of John Parker, Archbishop of Dublin. His grandfather Major Joseph Deane was a close associate of...
died suddenly. It appeared that no Irish-born judge was prepared to take on this onerous appointment which would involve clearing a large backlog of cases and reforming practices described as " confusion and disorder almost beyond remedy," and accordingly Gilbert received the promotion.His early years in Ireland were happy : he received an honorary degree from the University of Dublin and was hailed in ballads as the" darling of the nation"
Sherlock v Annesley
Gilbert's contentment was destroyed when the case of Sherlock v Annesley, first heard in 1709 returned to the Exchequer.This dispute over the ownership of lands in NaasNaas
Naas is the county town of County Kildare in Ireland. With a population of just over twenty thousand, it is also the largest town in the county. Naas is a major commuter suburb, with many people residing there and working in Dublin...
was notable only for the determination of both parties to win: in pursuit of this aim they opened the senitive issue of whether the Irish House of Lords
Irish House of Lords
The Irish House of Lords was the upper house of the Parliament of Ireland that existed from mediaeval times until 1800. It was abolished along with the Irish House of Commons by the Act of Union.-Function:...
or the British was the final court of appeal in Ireland.The Exchequer had found in favour of Maurice Annesley and ordered that he be put in possession of the lands. After a long delay Hester Sherlock's appeal was heard by the Irish peers who reversed the Exchequer and made a decree in her favour. Annesley then appealed to the British House of Lords which restored the original Exchequer order and apparently questioned the right of the Irish House to hear the appeal at all.The Exchequer ordered the Sheriff of Kildare to put Annesley in possession and when he refused censured him. A similar order was served on Mrs. Sherlock; she again appealed to the Irish House which summoned the Barons of the Exchequer to explain heir conduct. Asked what orders he had received from London Gilbert unwisely relied on the privilege against self-incrimination.The Lords were infuriated and although the Lord Chancellor urged moderation voted by a large majority to commit the Barons to the custody of Black Rod
Black Rod
The Gentleman Usher of the Black Rod, generally shortened to just Black Rod, is an official in the parliaments of several Commonwealth countries. The position originates in the House of Lords of the Parliament of the United Kingdom...
; as a further insult they were ordered to pay for their upkeep.
Aftermath
After three months Gilbert emerged to find that from "darling of the nation" he had become "the most infamous of men". The British House of Lords responded to the imprisonment of the Barons by passing a Declaratory Act, the famous "Sixth of George I" which took away the right of appeal to the Irish House and declared the right of the British Parliament to make laws for Ireland. Embittered by the loss of their powers the Lords blamed Gilbert rather than their own provocative behaviour: he was venomously attacked by the influential Archbishop of DublinArchbishop of Dublin
The Archbishop of Dublin may refer to:* Archbishop of Dublin – an article which lists of pre- and post-Reformation archbishops.* Archbishop of Dublin – the title of the senior cleric who presides over the Roman Catholic Archdiocese of Dublin....
, William King
William King
William King may refer to:*Bill King, , American radio announcer*Billy King , Irish cricketer*Willie King , blues guitarist and singer...
, and subjected to a campaign of petty persecution.
English career
Though now friendless in Ireland Gilbert still had influence in London. It appears he was offered the office of Lord Chancellor of IrelandLord Chancellor of Ireland
The office of Lord Chancellor of Ireland was the highest judicial office in Ireland until the establishment of the Irish Free State in 1922. From 1721 to 1801 it was also the highest political office of the Irish Parliament.-13th century:...
, but understandably preferred to return to England. he became a Baron of the Exchequer in 1722 and a Commissioner of the Great Seal in 1725. The same year he became Lord Chief Baron but almost at once became seriously ill; he died at Bath in 1726 and was buried in Bath Abbey
Bath Abbey
The Abbey Church of Saint Peter and Saint Paul, Bath, commonly known as Bath Abbey, is an Anglican parish church and a former Benedictine monastery in Bath, Somerset, England...
.He is not known to have married.
The treatises
Though renowned as a scholar Gilbert published very little in his lifetime. After his death however a large collection of manuscripts was found covering almost the whole of English law and practice. Over the decades most of them were published, but in a rather haphazard way. This gave rise to curious stories; in a leading copyright case in 1774, Gilbert's successor Chief Baron Smythe , said that many lawyers recalled that Gilbert left the works to a colleague who employed a journalist to copy them, but that the copyist stole them and sold them to a publisher.While this seems unlikely, it is clear that the standard of the early editions was poor: most were full of mistakes, so that later editions assured the readers that the editors had corrected them. On the other hand it is generally agreed that the quality of the work itself is remarkable: Elrington Ball called Gilbert probably the most eminent author who ever sat on the Irish Bench.The law of evidence
The best known and most influential of the treatises is his Law of Evidence ;first published in 1754, it went through six further much expanded editions and remained the leading work on evidence for half a century .BlackstoneBlackstone
-Businesses:*Blackstone Group, U.S. private equity and asset management firm*Blackstone Career Institute, online training institute*Blackstone & Co, a farm implement and engine manufacturer in Stamford, Lincolnshire until absorbed by Lister in 1937-People:...
was warm in his praise, calling it a book which it was impossible to abridge without destroying its beauty. Its influence declined after Jeremy Bentham
Jeremy Bentham
Jeremy Bentham was an English jurist, philosopher, and legal and social reformer. He became a leading theorist in Anglo-American philosophy of law, and a political radical whose ideas influenced the development of welfarism...
singled it out for attack in his own Treatise on Evidence ( 1825 ).Today it is still regarded as a landmark in the development of evidence as a branch of the law in its own right. Central to the work is the best evidence rule
Best evidence rule
The best evidence rule is a common law rule of evidence which can be traced back at least as far as the 18th century. In Omychund v Barker 1 Atk, 21, 49; 26 ER 15, 33, Lord Harwicke stated that no evidence was admissible unless it was "the best that the nature of the case will allow"...
: despite a few earlier references Gilbert can fairly be said to have invented it. He argued:" a man must have the utmost evidence the nature of the fact is capable of..there can be no demonstration of the fact without the best evidence that the fact is capable of" :.He formulated the idea of weights or hierarchy of evidence: written evidence has more weight than verbal, and an original document has more weight than a copy ( the last part of the rule is still good law ).
Other works
Blackstone also admired The History and Practice of Civil Law Actions, praising Gilbert's skill in tracing the origin of many modern rules; other critics however deplored the number of mistakes and questioned whether Gilbert had ever intended to publish it at all. His Treatise on Tenures was influential in America as well as England; the U.S. Supreme Court called it " an excellent work": in 1815, and the future President John AdamsJohn Adams
John Adams was an American lawyer, statesman, diplomat and political theorist. A leading champion of independence in 1776, he was the second President of the United States...
said he had learned much from it. His Treatise on Rents was regarded as an authority by the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
as late as 1951.
List of treatises
- Law of distresses and replevins 1730
- Law of Uses and Trusts 1733
- Law and Practice of Ejectments 1734
- Reports of cases in Equity and the Exchequer 1734
- The History and Practice of Civil Law Actions particularly in the Court of Common Pleas
- Treatise on Equity 1741
- Law of Evidence 1754
- Treatise on Tenures 1757
- History and Practice of the Court of Chancery 1758
- Treatise on the Court of Exchequer 1758
- Treatise on Rents 1758
- Reports of cases in law and equity, including a Treatise on Debt and a Treatise on the Constitution 1760
- Law of Executions 1763
- Law of devises, last wills and revocations 1792