Jeffrey Gilbert (judge)
Sir Jeffrey Gilbert (1674–1726) 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.
Family and early career
He was born at Goudhurst 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, 1st 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.
Soon after his arrival the Chief Baron of the Irish Exchequer, Joseph Deane, died suddenly. It appears that no Irish-born judge was prepared to take on this onerous appointment which would involve clearing a large backlog of cases in the Court of Exchequer (Ireland) and reforming practices described as creating "confusion and disorder almost beyond remedy". 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 the Exchequer in 1709, was referred back. This dispute over the ownership of lands in Naas was notable only for the determination of both parties (who were cousins) to win it. 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 High 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 their conduct. Asked what orders he had received from London Gilbert unwisely relied on the privilege against self-incrimination. The Lords were infuriated and although Lord Midleton, the Lord Chancellor, urged moderation, the Lords 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.
After three months detention Gilbert emerged from custody to find that from " the 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 the Dependency of Ireland on Great Britain Act 1719 ( the notorious Act of the 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 Dublin, William King, and subjected to a campaign of petty persecution (on assize he found it impossible to find proper lodgings).
Though now friendless in Ireland, Gilbert still had influence in London. It appears he was offered the office of Lord Chancellor of Ireland, 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 of the Exchequer and was knighted. However he soon became seriously ill, died at Bath in October 1726 and was buried in Bath Abbey. He is not known to have married. He had been elected as a Fellow of the Royal Society in May 1726.
Though renowned as a legal 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 coming 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 as Chief Baron, Sidney 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 in later editions readers were assured that the editors had corrected them. On the other hand it is generally agreed that the quality of the writing itself is remarkable: Francis 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. William Blackstone 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), but 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 that "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).
Blackstone admired Gilbert's 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 actually intended to publish it. His Treatise on Tenures was influential in America as well as England; the US Supreme Court called it "an excellent work" in 1815, and the future President John Adams said he had learned much from it. The Treatise on Rents was regarded as authoritative by the Supreme Court of Canada 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
- Ball F. Elrington The Judges in Ireland 1221–1921 John Murray London 1926
- Ball Judges in Ireland
- Ball, page 84
- O'Flanagan J. Roderick Lives of the Lord Chancellors and Keepers of the Great Seal of Ireland 2 volumes London 1870
- Ball, page 90
- "Library and Archive catalogue". Royal Society. Retrieved 2012-03-07.
- Donaldson v Beckett (1774) 2 Browne's Parl. Cases 129
- Judges in Ireland page 82
- Commentaries Book 3 Chapter 23
- Town of Pawlett v Clarke 13 U.S. 292
- McCullough, David John Adams Touchstone 2001
- Attorney General for Alberta v Huggard Assets 1951 S.C.R. 427