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Sir  Francis Buller (1746–1800), by Mather Brown, 1792Sir Francis Buller (1746–1800), by Mather Brown, 1792
Buller, Sir Francis, first baronet (1746–1800), judge, was born at Downes, near Crediton, Devon, on 17 March 1746, the third son of James Buller and his second wife, Lady Jane Bathurst, second daughter of Allen, first Earl Bathurst. He demonstrated that ‘Notwithstanding the incredulity of country-gentlemen, some lawyers have pedigrees’ (Townsend, 1.2). He was born into a venerable and respected Cornish family from Morval, with a history of service in politics, the church, and the law. He attended Ottery St Mary grammar school, where he lived in the house of the Revd John Coleridge, father of Samuel Taylor Coleridge. Precocious throughout his life, he entered the Inner Temple at the age of seventeen to study special pleading under the pupillage of William Ashurst, later a puisne justice with Buller on the court of king's bench. The same year, 1763, he married Susanna (d. 1812), daughter and heir of Francis Yarde of Churston Court, Devon. He began practice as a special pleader in 1765 and met with immediate success. His uncle, Henry Bathurst, was at the time an experienced judge on the court of common pleas, and in 1767 had published an anonymous work (shown as ‘by a learned judge’) with which Buller would later be associated, An Introduction to the Law Relative to Trials at Nisi prius. Buller edited the work, and indeed may have been responsible for much of the arrangement and content of the 1767 version, publishing the first edition under his name in 1772. The book went through seven editions and was widely used as a guide for conducting jury trials, and as a circuit companion.

Buller was called to the bar in Easter term 1772 and rapidly acquired an extensive practice. An examination of cases argued at king's bench between 1774 and 1778 shows Buller as counsel in most cases of consequence. On 24 November 1777 he was made king's counsel, and three days later was made the second judge of the county palatine of Chester. He early came to the notice of Lord Mansfield, who recommended him for appointment to fill a vacancy when Richard Aston died in 1778. On 6 May 1778, at the age of thirty-two, Buller joined Lord Mansfield and fellow puisne judges William Ashurst and Edward Willes on the court of king's bench. His energetic work habits, quickness of intellect, and congeniality instantly overcame any prejudice there might have been about his youth. While Buller was yet serving on king's bench, a biographer wrote: ‘Nature designed him for a lawyer … for very early in life he seems to have entered into a recognizance, to talk and think of nothing but law; his knowledge of practice and cases, left him without a competitor’ (Rede, 62). However, Buller was constantly subjected to malicious hostility, no doubt because of his early elevation to the bench; and some critical views were recorded by a retired barrister in his notebook (Espinasse).

The expansiveness of Buller's capacity for the law and the extent of his collaboration with Lord Mansfield can be readily seen in the ‘Buller paper books’ held by Lincoln's Inn Library. Part of the Dampier manuscripts, the collection includes extensive research notes and draft opinions in Buller's autograph that show remarkable assiduity and learning. The papers show that some opinions of the court delivered by Lord Mansfield, especially in Mansfield's last few active years on the bench, were actually written by Buller. They also show that Buller occasionally discarded his own tentative opinions in order to follow his chief. He regarded Mansfield as having been a ‘second Father’, indeed he was a named beneficiary in Mansfield's will. Nevertheless, Buller carefully prepared and presented his own opinions, and although, especially by the mid-1780s, he was prepared to differ from Mansfield, there was rarely a need to do so since the two judges held compatible views on most issues. One point of departure was over the dividing line between what should be decided by the judge and what by the jury. Tindal v. Brown (1786) was the last in a series of cases that came before the court turning upon what constituted reasonable notice to bankers or merchants in commercial transactions. Mansfield hesitated to take the issue away from the jury, but Buller, being strongly of the view that the issue was the judge's responsibility, declared:
The numerous cases on this subject reflect great discredit on the courts of Westminster. They do infinite mischief in the mercantile world; and this evil can only be remedied by … considering the reasonableness of time as a question of law and not of fact. (C. Durnford and E. H. East, Term Reports in the Court of King's Bench, new edn, 8 vols., 1817, vol. 1, p. 169)
Palpable self-confidence and keen abilities usually left Buller in full control of his courtroom during the conduct of trials, but he met his match in the flamboyant brilliance of Thomas Erskine. Erskine, who had once been pupil to Buller in chambers, was counsel to the dean of St Asaph during the dean's trial for seditious libel before Buller in 1783. The jury attempted to return a verdict of ‘guilty of publishing only’, and Buller, in keeping with the law as it then stood, pressed them to return a general verdict of guilty or not guilty. Erskine insisted that the word ‘only’ be recorded. Buller scolded: ‘Mr Erskine, sit down, or I shall be obliged to interpose in some way’, but Erskine refused, Buller did nothing, and recorded a verdict of ‘guilty of publishing, but whether a libel or not the jury do not find’ (State trials, 21.950–55). This led to a motion for a new trial based on misdirection of the jury, and left Buller in a momentary state of professional embarrassment.

Buller was regarded as sometimes arrogant and impetuous, leaping to conclusions too quickly. Foss declared that ‘notwithstanding his urbanity, he was not a popular judge’ (Foss, Judges, 8.254), but this claim is too broad. Buller may have been occasionally precipitate or harsh in criminal trials, yet he was universally respected in civil cases, particularly those involving commercial affairs. As was true of Mansfield, however, Buller tended on occasion to blend law and equity. John Scott, first earl of Eldon, remembered in a letter to John Singleton Copley, Baron Lyndhurst, that Buller sat frequently under a commission permitting puisne judges to assist in chancery, and that Buller ‘in some measure in Chancery made a Mixture of Law with Equity, which spoiled both—as in the King's Bench he made a Mixture of Equity with Law, which likewise spoiled both’ (letter, not dated [1830], Glamorgan RO, Lyndhurst MSS, D/D Ly 19/79). Buller suffered as a result of an unfortunate remark attributed to him, that a husband could punish his wife with impunity provided that the rod or stick he used was no thicker than his thumb. Foss claimed that, despite a searching investigation, ‘no substantial evidence has been found that he ever expressed so ungallant an opinion’ (Foss, Judges, 8.252); none the less, James Gillray published a caricature on 27 November 1783 of Buller as ‘Judge Thumb’, carrying two bundles of ‘thumbsticks’—‘for family correction: warranted lawful!’

During the ten years he shared on king's bench with Lord Mansfield, Buller was effectively the second in command, despite being junior to his fellow puisne judges. Mansfield wished to have Buller succeed him as chief justice, as Mansfield declared in a letter to Lord Chancellor Thurlow on 27 November 1786 suggesting that it was time to resign. There was resistance to Buller in the administration, chiefly from Pitt, and Mansfield's resignation waited another two years, when Sir Lloyd Kenyon was appointed chief justice. During those two years Mansfield was incapacitated, and Buller conducted most of the trials and ran the business of the court. He stayed on king's bench after Kenyon's appointment and on 13 January 1790 received the consolation of being made baronet. He remained vigorous in his judicial duties, as was attested to by James Scarlett, later Lord Abinger, who attended the northern circuit in the spring of 1792 when Buller was the sole judge. Scarlett wrote in his memoirs:
There were eighty-six causes to be tried at York, one of which was a boundary cause that lasted sixteen hours, thirty-six at Lancaster, and forty to fifty prisoners at each place; but Mr. Justice Buller concluded the whole Circuit in three weeks. (Scarlett, 49)
In Easter term 1794 Buller transferred to common pleas, where he served until his death on 5 June 1800, at the age of fifty-four, in Bedford Square, London. The last major trial over which he presided was that at Maidstone in 1798 of state prisoners Arthur O'Connor and others for treason. In his last years he suffered frequent attacks of gout and a mild stroke, and he had arranged to resign a few days before he died. He was buried quietly near the remains of his first-born son, Edward, at St Andrew's, Holborn, London, on 11 June.

Short of stature, but with handsome, commanding features and a piercing gaze, Buller lived his professional life to the fullest, with almost a preternatural intensity. He was generous as a mentor to young men starting out in the profession, including Thomas Erskine, Charles Fearne, Vicary Gibbs, and Francis Hargrave. His only known recreations outside the law were a notorious love of card-playing, especially whist, and, in later years, his estate at Princetown, on Dartmoor. He owned 600 acres and experimented with rotation of crops and improving agricultural methods, communicating about these matters with Arthur Young. He was survived by a son, who succeeded him, and his grandson was made Baron Thurston.

James Oldham

Sources  

W. C. Townsend, The lives of twelve eminent judges, 2 vols. (1846) · H. Bathurst, Introduction to the law relative to trials at nisi prius (1767) · J. Oldham, The Mansfield manuscripts and the growth of English law in the eighteenth century, 2 vols. (1992) · Strictures on the lives and characters of the most eminent lawyers of the present day (1790) · Lincoln's Inn, London, Dampier MSS, Francis Buller MSS · State trials · Foss, Judges · The works of James Gillray from the original plates, 3 vols. (1847–51) · P. C. Scarlett, A memoir of the right honourable James, first Lord Abinger (1877) · A. Young, ed., Annals of agriculture and other useful arts, 46 vols. (1784–1815) · John, Lord Campbell, The lives of the chief justices of England, 3 vols. (1849–57) · D. Duman, Judges of England, 1730–1875 (1979) · [I. Espinasse], ‘My contemporaries: from the notebooks of a retired barrister’, Fraser's Magazine, 6 (1832), 224–8 · IGI · GM, 1st ser., 70 (1800)

Archives  

Lincoln's Inn, London, legal papers


Likenesses  

M. Brown, chalk drawing, c.1792, Scot. NPG · M. Brown, oils, 1792, NPG [see illus.]