Horace Twiss.

The public and private life of Lord Chancellor Eldon, with selections from his correspondence (Volume 2) online

. (page 4 of 65)
Online LibraryHorace TwissThe public and private life of Lord Chancellor Eldon, with selections from his correspondence (Volume 2) → online text (page 4 of 65)
Font size
QR-code for this ebook

order to ensure testimony of the fact, if it should be necessary hereafter. There could
be no difficulty in making an arrangement to this effect. It would be as well that it
should be a person in the service of the crown, and I conceive that one of the minis-
ters or secretaries of legation, resident at any of the neighbouring German courts,
might be directed to attend, who could be most conveniently spared at the time for the

"I shall be obliged to you if you will let me know if you concur with me in this
view of the subject, as I am anxious to write to the Duke of Cambridge by one of the
mails of next week.

" I trust I shall hear, at the same time, that you are already beginning to derive
benefit from your retirement.

"Believe me to be, my dear lord,

" Yours very sincerely,


Lord Ellenborough, the Lord Chief Justice of England, whose
resignation was announced by the following letter, was the lord
chancellor's senior by only two or three years, and had possessed an
unusually robust constitution, so that his retirement was a serious
warning to his old friend and cotemporary.

" Worthing, Sept. 21st, 1818.
" My dear Lord,

" The decay of many of my faculties, particularly of my eyesight, which I have
painfully experienced since the beginning of the present year, strongly admonishes me
of the duty which I owe to the public and myself on that account; and, as I have now
held the office of Chief Justice of the Court of King's Bench for more than sixteen
years, viz., from the 12th day of April 1802,1 am entitled, under the acts of Parliament,
to request, which I most humbly do, the permission of his royal highness, the prince


regent, for leave to retire, on the first day of next term, upon that amount of pension
which, by those acts of Parliament, his royal highness, the prince regent, is authorized
to grant to a Chief Justice of the King's Bench retiring after a period of fifteen years'
service. If I had been able to depend upon my strength for the due and satisfactory
execution of my most important office for a longer period, I should not now have ten-
dered my resignation to his royal highness. I have endeavoured to accommodate
myself to the convenience of his royal highness and to the public in this respect, by
desiring his majesty's ministers, about the commencement of the present year, to have
it in contemplation that such an event might probably take place at no distant period.
I have therefore only to carry into effect this long-meditated and necessary purpose
on my part, by your lordship's official mediation and instrumentality. Sir William
Grant's recent instance will supply me with a proper precedent I will therefore
trouble your lordship for a communication of it, which I will execute accordingly,
mutatis mutandis.

" I cannot take leave of the duties with which I have been so long conversant, or
of the persons, particularly your lordship, with whom I have been so long associated
in the execution of so many of them, without the deepest concern and regret. I take
the liberty of expressing that sentiment thus generally, with an anxious wish that
whatever defects may have attended my own execution of this important office may
be amply supplied by the successor whom his royal highness, the prince regent, may
appoint in my room.

" I have the honour to be, my lord,

"Your lordship's most faithful and obedient servant,


"When Lord Ellenborough," says Lord Eldon, in his Anecdote
Book, " resigned the office of Lord Chief Justice of the Court of
King's Bench, the king, George IV., then prince regent, proposed
to me to consult him upon the point who was the most proper person
in the profession to succeed him in that great office. I humbly
represented to his majesty, that such a step was not advisable ; that,
if those who possessed, under the crown, the great law offices, were to
be advised with as to the question who should be their successors, a
choice, which ought to be made at the time of filling the vacancy, of
the best and most eminent men at that time in the profession, would
seldom be made, and that the succession would probably, in all cases,
be settled by management and intrigue between the great law officers
who were to resign, and the persons who were to succeed ; and the
resignations would probably be made, not at a time most for the public
interest to have .the resignations take place, but when it would proba-
bly best suit the person to resign and the person whom he wished to
succeed : that nothing of this sort was to be apprehended in the case
of Lord Ellenborough and any person whom he might wish to be
chief justice ; but that, in most cases, this evil would probably happen.
His majesty acquiesced."

(Lord Sidmoulh to Lord Eldon.) (Extract.)

" Richmond Park, Oct. 18th, 1818 V

"Lord Ellenborough is anxious for the appointment of his successor.


"He is painfully conscious of the sad change which the faculties of his mind have
undergone: but he is calm and patient, full of kindness for his friends, and mo^t
anxious for the public interests, and particularly for those which are involved iu the
appointment of his successor."
VOL. II. 3


Mr. Justice Abbott, one of the puisne judges of the Court of King's
Bench, afterwards Lord Tenterden, was selected to be Lord Ellen-
borough's successor. The considerations which led to this appoint-
ment are thus stated by the lord chancellor in a letter to Lord Kenyon,
whose learned and able parent had been Lord Ellenborough's prede-


(Lord Eldon to Lord Kenyon.}

(Not dated: Post-mark NOT. 14th, 1818.)
" My dear Lord,

"I thank you for your letter; and, a fit of the gout preventing me from going to

Westminster, I shall now make an effort, though in pain, to trouble you with a few

lines. I agree with you that, generally speaking, the Chief Justice of the King's

Bench should be a peer, even if there had been no usage upon the subject. But

then the state of the profession must admit of it. I have not been able to find (in

that state) a person fitter for it than Abbott. Now see the effect of this. Lord Mans-

field had had long practice in lucrative situations at the bar he was of a noble

family he was not likely to have descendants, that is issue. Your father had been,

at the bar, the most eminent lawyer of our times; he had made by his practice, inde-

pendently of the law offices, a larger fortune than any professional man of his time.

When called to the King's Bench, I know (I think) myself, that peerage was one ob-

ject with him in accepting the office; and, if Providence had not suffered him to live

but the shortest time in the office, a peerage would have gone to his children with

ample means to support the dignity. Lord Ellenborough had likewise made some

fortune, much less certainly, at the bar; but if he had died before Mr. Way, I doubt

whether the peerage there would have been either convenient to the family or useful

to the public. As to the Common Pleas, when C. J. De Grey went out, they gave him

a peerage in order to find a chief justiceship for Wedderburn. You see that peerage

has been obliged to be helped out by office. Lord Loughborough had no children ;

his peerage, therefore, as Lord Loughborough, could not descend, and his office would

support him during his life. What he meant, when he left the chancellorship, by

getting an unendowed earldom for his nephew, I can't pretend to say. When I came

to the Common Pleas, I had made some fortune, in a successful practice at the bar,

and in the great law offices, which I held nearly twelve years. Mr. Pitt was unwilling

to give me an office which would take me out of Parliament; I could not be in it

unless in the House of Lords, and I can assure you, that I have often thought that, if

I had survived the acceptance of the peerage but a short time, I had accepted what

would have been a nuisance to my family, and no benefit to the public. Of our dear

friend Lord A., can any body now say that it was a wise measure on his part to accept

a peerage 1 Now, as to Abbott, his practice has been behind the bar. He never had

any office, I think not a silk gown : he enters, therefore, upon the office in very mode-

rate circumstances, with a considerable family. The permanent offices of profit in

the gift of the chief justice, as I understand without exception, are not any of them

likely to be vacant whilst he is likely to live or to hold his office, what he can save

out of the other emoluments of the office, he did not and, indeed, he could not think

would enable him to transmit with a peerage a fully competent fortune to support it

his health is tender, and his eyesight not in a very safe state : upon the whole, his

own difficulty about taking the office was the apprehension that peerage was to go

with it. He immediately determined, if it was not. As to himself, this delermination

appears to me to have been quite right. If a contrary determination would, as to the

public, have been right in any other person at the bar, where are you to find one (in

whom, in point of circumstances, it had been right with peerage) to whom this great

office could have been offered? The attorney-general, from his deafness, could take

neither chiefship, that of the King's Bench could not be offered to so young a man

as the solicitor-general. He refused that of the Common Pleas, as not yet having

any fortune to leave to his family.

" Upon the whole, we endeavoured to do the best we could : we could not do what

really would have been unexceptionable. It was impossible.

"God bless you, my dear lord, and, with all affectionate wishes for you and your

family, " Believe me yours always,

The sudden death of Sir S. Romilly, who, in a disorder of mind


occasioned by the death of a fondly-beloved wife, put an end to his
existence on the 2d of November, was acutely felt by Lord Eldon,
before whom that eminent lawyer had been for many years in daily
and pre-eminent practice. The chancellor came into court next morn-
ing obviously much affected. As he took his seat he was struck by
the sight of the vacant place within the bar which Roinilly was accus-
tomed to occupy. His eyes filled with tears. " I cannot stay here,"
he exclaimed ; and rising in great agitation, broke up his court.

On the 17th of November, 1818, died Queen Charlotte, the loyal
and prudent consort of George III. The conclusion of the year was
marked by the accession of the Duke of Wellington to the cabinet,
which he entered on the 26th of December, succeeding Lord Mul-
grave as master-general of the ordinance.



New Parliament. Factory children. Custody of the king's person. Motion of Mr.
M. A. Taylor on the Court of Chancery. Position of the government: letter from
Lord Liverpool. Catholic question. Legacy declined. Appeals of felony and
wager of battle, abolished. Letters from Lord Eldon to Sir William Scott and to
the present earl : school recollections of the latter : correspondence between the
chancellor and the home-department on the disturbances in the north. Message to
Parliament from the prince regent : the six acts. Death of George III. : Anecdotes
related by him at different times to Lord Eldon.

THE Parliament elected in the preceding summer was opened on the
21st of January, 1819, with a speech delivered by the lord chancellor
on the prince regent's behalf. Lord Kenyon having moved, on the
25th of February, for a committee to inquire into the condition of
factory children,

The chancellor, without opposing the motion, desired to have it known that the
overworking of children was an offence indictable at common law. He saw no rea-
son why the master manufacturers and the master chimney sweepers should be sub-
jected to the operation of different principles from those applied in other trades. If
any measure of this kind were proposed, it ought to be a law which should regulate
manufactures of all descriptions.

The result of these proceedings was the statute 59 Geo. 3. c. 66,
limiting the time of labour in cotton mills and factories to twelve
hours for persons under sixteen years of age, and prohibiting alto-
gether the employment of children under nine.

The death of the queen, and the cessation of all reasonable hope
of the king's recovery, had now rendered it expedient to make some
new provisions respecting the royal household. A bill was therefore
brought into Parliament by the ministers, largely reducing the Windsor
establishment, and giving the custody of the king's person to the
Duke of York, with a stipend of 10,000/., part of the sum saved by
the reductions. A suggestion having been made by the opposition
on the 30th of March, when the bill was in committee, that this sti-
pend should be paid from the privy purse,

The chancellor contended, in reference to statutes, that the privy purse was as
completely the private property of the king as any thing belonging to any of their
lordships was private property in them. Now the private properly of any subject,
during mental alienation, was placed under proper care, that it might be forthcoming
for his use at the return of his reason : and he would put it to their lordships, whe-
ther the sovereign ought to be deprived in his affliction of that which was allowed to
the humblest of his subjects, the benefit of the principle which arose from a hope of
this recovery ? It did not follow, however, that the king's privy purse was liable, like
the private property of a subject, to the maintenance of the proprietor during lunacy,
the king being entitled, both in health and in sickness, to a maintenance from the
nation irrespectively of his privy purse. He vindicated the allowance to the Duke of


York, as necessary to the custos of the king's person on the same principle on which
the maintenance of the king's household was necessary the principle of keeping
up the royal dignity, and enabling the representative of the sovereign to support the
expenses and continue the bounties, which had ever been connected with the royal

This measure, when passed into law, was the 59 Geo. 3. c. 22.

Mr. M. A. Taylor, on the 30th of March, and again on the 20th of
May, renewed his efforts on the subject of delays in chancery. The
first of his motions, which was for an account of the total amount of
the property of suitors in chancery, in 1756, and every tenth year
down to 1818, w T as agreed to.

The object of it (he said) was to show the great increase of business in the Court
of Chancery, and to lay a ground for providing means by which the delays in that
court might be remedied.

In his motion of the 20th of May, which was in substance a pro-
posal for separating the jurisdiction in bankruptcy from the great seal,

He eulogized the talents, wisdom, learning and diligence of Lord Eldon, and the
clearness, precision and integrity of his judgments, but averred that the duties of the
court, as it then subsisted, were too heavy to be discharged even by those great facul-

This change in the jurisdiction of the great seal was rejected by a
large majority.

The new House of Commons had already shown symptoms of
resistance to the government. On the 2d of March, Lord Castle-
reagh's motion of the previous question, upon Sir James Mackintosh's
proposal for a select committee on capital punishment, had been de-
feated by a majority of nineteen. On the 3d of May, Mr. Grattan's
motion for a committee on the Roman Catholic question, had been
negatived by a ministerial majority of only two ; and on the 6th of
the same month, Lord Archibald Hamilton's motion for Scotch Burgh
Reform had been carried against ministers by a majority of five.

In such a posture of affairs, a question of so much consequence as
the state of the monetary system became a subject of great anxiety to
ministers. Proposals had been put forth by Mr. Ricardo and Mr.
Wray, for restoring a more wholesome state of currency, by making
the Bank of England liable, not to the payment in gold coin of every
one of their small notes, but to the payment in bullion of any bank
paper beyond a minimum to be fixed. This plan was favourably
entertained by the majority of the cabinet, who regarded it as a safe
and prudent essay toward a general resumption of cash payments.
It would seem, however, from the following letter of Lord Liverpool,
that the lord chancellor did not at first concur in the opinion of the
majority; and that some suggestion had been made of avoiding the
whole question, by a postponement of it for a couple of years. But,
as the experiment was to be a gradual one, requiring some months'
notice before its operation could commence, and a period of two or
three years more between that commencement and the completion,
a two years' delay of the parliamentary discussion necessary to ori-
ginate it was a resort which it was clear that the country would regard
as tantamount to a total abandonment of this important subject. The


precise point of difference between the chancellor and Lord Liverpool
does not appear; but the letter is remarkable, as showing the view
taken by a prime minister, before the Reform Jlct, of the government's
position under repeated discomfitures in Parliament.

(Lord Liverpool to Lord Eldon.}

" May 10th, 1819.
" My dear Lord,

"I am much obliged to you for your note, and am only concerned to find we differ
on so essential a point.

"lam sanguine enough to think that we have a reasonable chance of success, in
carrying the measures which were discussed on Saturday; but whether I may turn
out to be right or wrong, as to this I am quite satisfied, after long and anxious con-
sideration, that if we cannot carry what has been proposed, it is far, far better for the
country that we should cease to be the government.

"After the defeats we have already experienced during this session, our remaining
in office is a. positive evil. It confounds all ideas of government in the minds of men.
It disgraces us personally, and renders us less capable every day of being of any real
service to the country, either now or hereafter. If, therefore, things are to remain as
they are, I am quite clear that there is no advantage, in any way, in our being the
persons to carry on the public service.

" A strong and decisive effort can alone redeem our character and credit, and is as
necessary for the country as it is for ourselves.

"As to a postponement for two years, it would be mere self-delusion, and is far
more objectionable in my judgment, in every bearing, than at once renouncing all
idea of setting the finances of the country right.

" Ever sincerely yours,


The 24th of this month of May, 1819, is memorable for having
given birth to the gracious princess who now enjoys the affectionate
allegiance of the British people.

The Catholic question was discussed in the House of Lords on the
17th of May and on the 10th of June, 1819. On the former of these
days the motion was by Lord Donoughmore, for a committee to
inquire into the laws imposing disabilities on account of religious

The lord chancellor opposed it. He desired to know what plan the mover intended
to propound if a committee were granted, and what security the Catholics could give
which could reconcile the king's supremacy in things temporal with the pope's
supremacy in things ecclesiastical? If we were to believe the recorded history of
the country from 1660 to 1688, the Roman Catholics had systematically pursued the
accomplishment of their own objects and the destruction of our national church,
through every obstacle and through every difficulty; and there was no proof that any
change had since occurred in their religious principles. If the House looked to the
sentiments which were avowed and expressed by the Catholic Church during the
whole reign of Charles II. if they looked to the hostile spirit in which it assailed the
national church for some years previous to the Revolution of 1688 they would see
the necessity of the present disqualifications, and how strongly that necessity was
impressed on the mind of the whole nation. At the latter of the two periods to which
he alluded, a solemn compact was made between the king and people to support the
Protestant ascendency a compact which, while it acknowledged that no man could
be prosecuted on account of his religious opinions, did not secure him from pains
and penalties when his religious opinions had an effect upon his political conduct. It
was then resolved that this country should have a Protestant king, a Protestant Par-
liament, and a Protestant government. Such was the great principle which Parlia-
ment ought always to have in view, holding in due reverence that right of all men,
derived to them from God, that they should not be persecuted for religious opinions.
When religious opinions were attended with political effects injurious to the society
to which their professors belonged, that society had a right to exclude them from
offices of trust and emolument. Under a conviction of the absolute necessity of


securing a Protestant establishment to these kingdoms in order to render them free
and happy, their lordships' ancestors had enacted that no king who was either him-
self a Catholic, or was married to a Catholic princess, should ever sit upon the Bri-
tish throne. The other disqualifying laws served only as a part of the mechanism,
if he might be allowed to use such an expression, of which the constitution was
composed: it was thought advisable to prevent Roman Catholic advisers from sur-
rounding the person of the king, lest they should taint his mind with their pernicious
counsels; it was thought advisable to deny them seats in Parliament, and places in.
the privy council, lest they should sow dissension in the great assemblies of the
nation ; and, in order to provide for the fair and impartial administration of justice, it
was thought advisable that the laws should not be administered by Roman Catholic
chancellors and judges. Those regulations were, in his opinion, rendered absolutely
necessary by the temper which the Roman Catholics had constantly evinced. Others,
however, entertained a different opinion, and contended that as Roman Catholics had
satin Parliament in the 32d year of Charles II., there existed no rational objection
to their sitting there at present. This was not a fair way of putting the question:
the question was, whether the House, considering the events which had preceded the
Revolution and those which occurred in effecting it. considering the principles
which had been asserted on the union with Scotland, and which had been re-asserted
on the union with Ireland the question, he repeated it, was, whether the House
would stand by that constitution which had secured the most ample personal liberty
to every individual who lived under it. or whether they would recur to that constitu-
tion under which their ancestors had lived previous to those disqualifications being
enacted. Every man in the state owed allegiance to the king, as the acknowledged
head of the state to speak in the old language of the law, both the " spirituality and
the laity" owed him obedience. The language of the old statutes was in a similar
tone; for the " spirituality" was there subject to nobody, under God, but his majesty.
Some writers had observed that when the Roman Catholic religion was the religion
of the country, the country had contained men whose valour had been the admira-
tion of the world, whose talents had rendered us glorious in the eyes of other nations,
and whose virtues would have made them an ornament to the proudest era of either
Greek or Roman story. He should be the last man in the world to contradict the
truth of this statement; hut he could not help asking, whether these illustrious cha-
racters, with all their prowess, virtues and talents, did or could rescue their country-
men from the slavery in which Catholicism had immersed them 1 The only answer
which could be given to this question was. that they did not that they could not.
Lord Hale had said, that as the oath of allegiance, the act of homage, and the oath of
fealty, which were all then in existence, were not sufficient to remind men of their
duty to their sovereign, which they forgot in their obedience to a religion which esta-
blished another superior to him, it was found requisite by exacting that paramount
oath, the oath of supremacy to give ? no ; but to bring back and restore to the

Online LibraryHorace TwissThe public and private life of Lord Chancellor Eldon, with selections from his correspondence (Volume 2) → online text (page 4 of 65)