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

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sence, entered in the note book, at the end of the day, the following
account of what had been passing in the chancellor's court :

Mr. Leach
Made a speech,

Angry, neat, but wrong:
Mr. Hart,
On the other part,

Was heavy, dull, and long:
Mr. Parker
Made the case darker,*

Which was dark enough without:
Mr. Cooke
Cited his book,

And the chancellor said " I doubt."

This pleasantry found its way to the chancellor, who was much
amused with it, and had soon an opportunity for as humorous a
retort. The next time Mr. Rose had to argue an untenable case, Lord
Eldon, after stating the law, concluded by saying to him, "For these
reasons, the judgment must be against your client; and here, Mr.
Rose, the chancellor does not doubt."

Lord Eldon had held the seal but a few years, when the great start
which this country had made at the beginning of the present century,
in her foreign and domestic commerce, was felt in a heavy accumu-
lation of the judicial business relating to matters of property. In 1812,
the subject was brought by Lord Redesdale before the Upper House
of Parliament; and in 1813, the redoubled arrears, in the House of
Lords as well as in the Court of Chancery, induced the legislature to
pass a bill for the constitution of a new judge under the title of vice
chancellor, in addition to the lord chancellor and the master of the

No sooner did this appointment of an additional court hold out to
the public a prospect of increased dispatch than a new tide of busi-
ness flowed in. Fresh bills were filed in greater numbers, causes
which had long slumbered were promptly set down for hearing, and
in no very long time the state of the court was more oppressive than

Meanwhile, party feeling had begun to mix itself in the subject.
Lord Eldon, by his personal influence with George IV., had become,
as under the preceding monarch, the main stay of the administration,
and consequently, the great obstacle to the advancement of the Whigs ;
and they fastened upon the defective state of the court over which

* Every body will perceive that the author of these stanzas uses this word for the
rhyme's sake only, without the least intention to imply that the learned counsel was a
man likely to darken any of the cases entrusted to him in his very extensive practice.
"Parker" happened to chime with " darker:" if the counsel had been a Mr. Rayner,
the report would assuredly have run, " Made the case plainer"


he presided, as a means of discrediting him, and through him,, of break-
ing down the government. The attack was got up with all the strength
of the opposition. The subject was taken out of the hands of Mr.
M. A. Taylor, who had for many years been pressing it, not indeed
very powerfully or judiciously, but with perfect freedom from personal
or political acrimony and was transferred to the abler conduct of
Mr. John Williams, then member for Lincoln, who has since become
successively a Baron of the Exchequer, and a Judge of the Queen's
Bench. In the two sessions of 1823 and 1824, he led the charge
with impression and effect. He was zealously aided in debate by the
chief political lawyers of his party. The most influential organ of the
Whig press, the " Edinburgh Review," took up the leading points,
and worked them in two strenuous articles.* In short, from the com-
mencement of this warfare, till after Mr. Williams's second motion,
which produced the appointment of a government commission to
consider the means of abridging the expenses and delays of Chan-
cery, no pains were spared, either in or out of Parliament, to fix the
chancellor with the obloquy of all that was amiss, in any department
of his court, or in the state of any of the causes there. The ten-
dency to doubt had probably grown upon him with advancing age ;
and it certainly led him, in some cases of novelty or complexity, to
postpone his judgments from sitting to sitting, until the uneasiness of
the suitors, at the long interval between the hearing and the decision,
produced reasonable and loud complaint. But the great cause of delay
was one wholly unconnected with the chancellor's hesitation, the
length of time, which, from the vast increase of the business, and the
want of a sufficient number of judges to dispose of it, was of necessity
interposed between the setting down of the cases and the hearing of
them. The business continued to spring up faster than any human ex-
ertion could keep it down. The unavoidable delay, thus endured by
all suitors in waiting for their turn to be heard, was confounded with
that other and less defensible delay, which a few endured in waiting
for judgment after hearing; and the aggregate blame of both these
delays was heaped upon the chancellor, who was properly responsi-
ble but for the latter.

In order, then, to deal justly with the imputation of dilatoriness, it
is necessary to keep the question as to arrears of particular judgments
after hearing, wherein Lord Eldon's default must be acknowledged,
quite distinct from the larger subject of the general arrear of matters
waiting to be heard, on which his case is an impregnable and a tri-
umphant one.

I. 2.

First, then, as to the narrower question touching the arrears of par-
ticular judgments after hearing. Now, in entering upon this head
of complaint (as to which, though there is an undeniable foundation

* October 1823, and January 1824.


of truth, the exaggerations have been quite extravagant,) it is but
reasonable to bear in mind what was observed by Sir Robert Peel:*

That " if Lord Eldon's delay had been one arising from his indulgence in pleasure
or in frivolous amusements, it would have been a subject of just reprehension;, but
where a man was seen devoting twelve out of the twenty-four hours, without remission,
to the public business, and allowing himself no longer a vacation than three weeks
out of fifty-two, it would be but fair to pass with a light hand over the venial fault of
him who decided slowly, from the peculiar constitution of his mind and his ultra
anxiety to decide justly."

When Mr. Williams, in his speech of the 4th of June, 1823, opened
the charge against the chancellor to the House of Commons, a con-
siderable prejudice was raised by an enumeration of six cases, which,
in that speech, were represented to have been pending in Chancery
for many years, with most grievous cost, vexation and injury to the
parties interested. And yet, no fewer than five of the six were actually
cases, with the delay of which the chancellor was totally unconnected.
The reader will find, on examining Mr. Williams's statement with the
answers of Sir Robert Gifford (then attorney-general), and of Mr.
Courtenay, (now Earl of Devon, then a master in Chancery,) and the
evidence as to the cause of Oldham v. Cook, taken before the Chan-
cery Commission of 1824, pp. 171-2, that in all those instances, except
that of Ware v. Horwood, the delay was occasioned either by the
laches of the suitors themselves, or by the length of time which, from
the great number of prior matters set down to be heard, was neces-
sarily interposed before these particular cases could arrive at their turn
for hearing. It is only in the sixth instance, that of Ware v. Hor-
wood, that there appears to have been any delay for which the chan-
cellor could be accountable. That case produced an extraordinary
impression on the House of Commons and on the public, by reason
of the following letter to the chancellor from the solicitor for some of
the parties:

"Ware v. Horwood. My Lord, My clients have great reason to complain of the
great injury suffered by them in consequence of these causes not keeping their station
at the head of your lordship's paper, agreeably to your lordship's order, repeatedly
given in my hearing. It is now nearly seven years since they have been waiting for
your lordship's judgment; and upwards of two years ago they had arrived at the top
of the paper, at which place I humbly entreat they may, until you can decide upon
them, remain. There is a fund of 10,0001. and upwards, locked up in court until your
lordship decides in these causes, and it is therefore matter of great importance to my
unfortunate clients that your lordship's decision may not be delayed by the circum-
stances to which I have above alluded. It is painful to me to state to your lordship
that I have learnt, from authority which I have no reason to doubt, that the infant, for
whose benefit these suits were instituted twenty years ago, died of a broken heart on
account of being kept out of his property, and that I have to contend against the bitter
feelings of his relations. Under these distressing circumstances, knowing that your
lordship will pardon the liberty I have taken in thus addressing you, and which nothing
but the imperious necessity of the case would have induced me to have done, I have
the honour," &c.

The " Edinburgh Review" of October, 1823, after giving this letter,
proceeds thus :

The solicitor " was immediately sent for the private room of the chancellor; and
attendances on his lordship, upon this very singular and special mission, were charged

* Debate upon the Court of Chancery, 18th May, 1825.


to the client in his bill of costs, one item of which ran in the following form:' To
attendance upon his lordship in his private room, when his lordship begged for further
indulgence till to-morrow.' The thing went on: his lordship having begged and ob-
tained a further respite, was at length as good as his word; and, with the spur in his
side, made a decree." Page 259.

On these facts the observation, it must be confessed, is not an unfair
one, that, unless the chancellor had been conscious of an indefensi-
ble delay, he would not have received, without rebuke, an application
so irregular as the solicitor's letter. But, while it is fitting that a par-
ticular neglect, fairly chargeable, should be here frankly acknow-
ledged, it is not fitting that the case should be left with a husk of
mis-statements around it, calculated only to produce odium and to
make a groundless impression of general laxity. The reader is there-
fore requested to carry on his attention to some further circumstances
and considerations connected with this much-noted instance of delay.

When the statement in the solicitor's letter became known to the
public by means of Mr. Williams's speech, another gentleman, who
had been, but was then no longer, in practice as a solicitor, was
provoked by the intrinsic improbability of the allegations to investi-
gate the facts; and the result of the inquiry made by him, from the
friends of the deceased and from the medical man who attended his
death-bed, was, that no pretence existed for coupling his death with
the Chancery suit at all. He was a gardener at Peckham : and died
at twenty-three, impressed with a feeling that he had been guilty of
sins which excluded him from all hope of salvation. Under that
feeling he suffered deeply; but he made not so much as an allusion to
the Court of Chancery or to any of its judges. " During his infancy,"
says the gentleman who made these inquiries,

"There had been spent for his maintenance and education 466/., which was paid
to his uncle Charles, he having been allowed that sum by the report of a master in
Chancery, dated the 1st day of July, 1822. The infant in his will disposes of what, ' if
any thing.' should come to him from the Chancery suit relating to his father's affairs :
and the sum of 10,000/., ingeniously made use of in a letter, seems to have been, as
regarded this infant suitor, (exclusive of what was due to his uncle for maintenance,)
about 1347. From searching at Doctors' Commons, I find that his uncle Charles, who
was administrator to his father, administered to this infant's estate, sworn not to ex-
ceed 600/.; and out of this 600/., 4G6/. was due to his uncle, which had been expended
upon the infant during his minority, he never having received or been in a situation
to receive anything out of court in his lifetime; and therefore 134/. was all the infant's
interest in the suit, unless we can suppose his uncle Charles to have sworn to a false
amount on taking out letters of administration. I find, on searching at the proper
office, that this infant was never arrested, and I cannot learn that he was ever known
to be in pecuniary difficulties."*

It is true, no doubt, as is remarked in the before-quoted page of
the " Edinburgh Review," that

"Whether the infant was dead or alive, is for the purposes which the statement
was made, to prove the fact of delay as immaterial as whether he wore a blue coat
or a brown. Had the cause existed twenty years? Had there been 190 attendances
by solicitors, for the benefit, of course, of their clients? Did the solicitor, from the
urgency of clients, dead or alive, or from the outrageous nature of the dilatoriness, feel
himself driven to such a stale of desperation as to write such a letter] Was such an

* "Observations on the Judges of the Court of Chancery, and the Practice and
Delays complained of in that Court," (a pamphlet, published by Mr. Murray, Albe-
marle Street.)


astonishing liberty overlooked nay, more, was it instantly acted upon? Did the
lord high chancellor condescend to become a suitor to a solicitor of his own court, for
the favour of a day's delay, and was such a favour graciously vouchsafed? Can ii be
accounted for, except from a consciousness of personal imputation being well-founded,
that the writer of such a letter was not instantly reprimanded, and with the utmost

The duration of the cause before the hearing, and the number of
attendances dwelt upon in this extract, are fully as unimportant to
the judicial character of Lord Eldon (which is the only matter here
in discussion) as the question whether the infant was dead or alive
is justly considered by the reviewer to be. They were evils wholly
irrespective of the judge's diligence, whose duty does not begin till
the case can be brought on before him. But is the allegation that
"the infant died of a broken heart on account of being kept out of
his property," in reality an unimportant one? To the question
whether, in this particular case, Lord Eldon's delay of judgment was
unreasonably long, the truth or falsehood of this part of the story may
not be, and is not, a material circumstance ; but it is a very material
circumstance, indeed, for the purpose of showing the sort of aggrava-
tion with w r hich his doubts and delays were monstered to the public.
As a further illustration of this hostile spirit, it may be mentioned,
that while the solicitor for the plaintiff' was composing his fabulous
chronicle of the suffering infant's death-bed, an equally zealous gen-
tleman, concerned for some of the other parties, attempted to repre-
sent the decree, thus pronounced upon pressure, as having been
obtained surreptitiously, inasmuch as the plaintiff's solicitor had
waited upon the chancellor on the subject of it in his private room.
This insinuation, indeed, was disavowed in the debate on Mr. Wil-
liams's motion; but not until Mr. Courtenay had explained that the
interview in the private room, instead of having preceded the deci-
sion, had taken place after judgment pronounced, and simply in
consequence of the chancellor's having required from the solicitor,
according to very usual practice, some details which were necessary
for formally reducing the decree into writing. Lord Eldon himself
adverted to the subject in open court, expressing his opinion that this
practice was a proper one, and declaring that he should always feel
himself bound to follow it, with the view of making the decrees of the
court as accurate as possible.

Mr. Denman mentioned, in the adjourned debate on the same
motion, another case, the name of which does not appear, but which
was very remarkable in its circumstances. There had arisen, under
a bankruptcy, a question on which the chancellor had deemed it
necessary to ask the opinion of two common law judges. Their
answer did not satisfy his doubts, and he-consulted two other judges.
While the judgment stood over, the banker, who held the funds dis-
tributable in the bankruptcy, failed ; and that proportion of his assets
which belonged to the estate of the original bankrupt, was paid to a
new banker. The two judges, who had been last consulted, con-
curred with the two others : but the chancellor was still unconvinced,
and before he could make up his mind, the second banker also failed ;


so that there remained for the creditors but the dividend of a dividend
of a dividend. Now these facts, peculiar and unfortunate as they
certainly were, yet no more affect the real question of blame to the
chancellor, than did the death of the infant in the before-mentioned
case of Ware v. Horwood. In order to inculpate the chancellor, it
should have been shown that a long delay intervened between the
hearing and the first of the references to the judges, or between the
first and second of those references, or between the answer to the
second reference and the failure of the second banker ; and that during
such delay, the attention of the chancellor had been called to the case
by at least one application. But further, it has been very justly re-
marked by the author of the before-quoted pamphlet, called " Obser-
vations on the Judges of the Court of Chancery," that it was the fault
of the creditors themselves that they did not call upon the assignees to
invest this money in government securities, instead of leaving it at
hazard in the hands of private bankers. On application to the com-
missioners, the investment would have been ordered as matter of

The case of Collis and Nott was also mentioned by Mr. Denman
on the same occasion. It had been argued in 1817; the parties had
suffered it to sleep till Hilary Term, 1823; and then the chancellor,
being pressed for a decision, found that he had forgotten the circum-
stances of it. The case was re-argued ; and at the time of the debate,
which was in the summer of the same year, it remained still unde-
cided. Now, although this last delay of one term was nothing very
unreasonable, yet it is not to be denied that the former delay, from
1817 to 1823, if th*e fault had rested wholly with the chancellor,
would have been incapable of justification on his part. But the fault
in such cases can hardly rest altogether with the judge. It will not
generally be blameable in him to defer a judgment for a term or two :
and where he forgets or otherwise omits to discharge himself of the
case within that time, the parties owe it to themselves, considering
the multiplicity of the avocations which divide his attention, to remind
him, once at least, that his decision is expected. If this be wholly
neglected by them, as seems to have been the case in Collis v. Nott,
they themselves become partakers with the judge in the responsibility
of the delay. Mr. Colville, the registrar, says, in a note to the writer
of these pages, "If judgments remaining are not specially applied for
after a time, we are very much in the habit of concluding that the
cases have been settled, in consequence of what may have dropped
from the chancellor in the course of the argument, neither party pro-
bably being over-anxious to have full judgment actually pronounced."
This conclusion of a suit was very common in Lord Eldon's chancel-
lorship ; because, with all his caution about delivering any opinion in
the nature of a binding decision, he was in the frequent habit of inti-
mating his own view on the argument of counsel, and from that view
he scarcely ever departed in pronouncing the formal judgment of the
court. The Law Magazine records an observation made by Sir
Samuel Romilly, touching this habit of Lord Eldon. Upon one


occasion, "in a case of very considerable importance, his lordship
spoke for nearly two hours, and was listened to, as he always was,
with the most marked attention by all the bar." At the close he
said he would take home the papers and read them carefully, and
would tell the parties on a future day what his judgment would be,
having in substance and essence pronounced that judgment in the
very address he was then concluding. " Sir Samuel Romilly rose
from his seat, and, turning round to the gentlemen behind him, said,
' Now is not this extraordinary ? I never heard a more satisfactory
judgment, and yet the chancellor cannot make up his mind.* It is
wonderful,' continued Sir Samuel; and the more so, because, how-
ever long he takes to consider a case, I scarcely ever knew him to
differ from his first impression.' "f

A similar opinion was expressed by Mr. Brougham, who had great
practice before Lord Eldon in the House of Lords ;J and so well was
the value of this " first impression" understood by the solicitors in
the Court of Chancery that, as was said by Mr. Wbitton, one of the
most experienced and practical among them, on his examination
before the Chancery Commission, " if the parties get an intimation of
my lord's opinion on the point in the cause, all the rest becomes a
matter of course. " When this intimation had been obtained during
the argument upon a motion or exception, and the solicitors were
satisfied, the chancellor can scarcely be regarded as culpable, if he
did not put aside other matters of urgency to complete a judgment,
of which nobody seemed to be in want, and of which the substance
had been already given out by him.

It appears, then, that among all the instances *of delay imputed to
Lord Eldon by Mr. Williams in the debate of 1823, a clear blame
attached to the chancellor only in the one case before mentioned, of
Ware v. Horwood. But another year having been taken to gather
grievances, Mr. Williams came to the debate of 24 Feb. 1824, pro-
vided with a fresh set of counts for his indictment. He had given
himself, indeed, a wide range in order to collect his evidence ; for,
of the five additional instances, as to which he was able in 1824 to
show that there had been an excessive delay of judgment on the part
of the chancellor, two were cases on which the chancellor's decision
had been obtained so long before as 1823, Dudley v. Freeman, and
Copis v. Middleton; on Another not specified by name,)) the deci-
sion had been given in 1821 ; and in another, Cobb v. Lord Mount-
ford, the dates were not stated. In the fifth, Lord Moira v. Wyatt,
there had been a compromise, of which the date did not appear.
Beside these, a sixth was mentioned,^ but with this last the chancel-
lor had never any thing whatever to do, the cause having been com-

* Probably Sir Samuel Romilly's phrase may have been, the chancellor cannot
make up his decision,- for the very point of the observation was that he had made up
his mind.

j- Law Magazine, No. XLII.

* Pad. Deb., 18 May, 1826, and 27 Feb., 1827.

Report, printed by order of the House of Commons, 9 March 1826, p. 75.

8 Parl. Deb., Feb. 1824, pp. 386, 387 1 Ibid., pp. 385, 386.


promised without coming before him at all. Still, however, it did thus
appear, that during a period of between three and four years preced-
ing this debate, there had really been, besides the before-discussed
case of Ware v. Horwood, five instances in which the chancellor had
laid himself open to a very just imputation of delay.

Mr. Williams did not omit, on that occasion, to notice also those
matters (being causes, rehearings, or appeals) which were then wait-
ing for judgment. The names of them were, Wlenholt v. Logan,
Nunn v. Agutter, Attorney-General v, Mansfield, Cocks v. Lord Som-
ers, and Powell v. Mouchet. The last he himself stated to have
been only part heard ; in which stage it was not even ripe for judg-
ment. In the last but one, that of Cocks v. Lord Somers, the hear-
ing appears, from the court papers in the Appendix to the Chancery
Report, p. 744, to have been completed but so lately before, as the
4th of that same month of February in w r hich Mr. Williams made his
statement ; so that it had been ripe for decision only a few days. The
hearing of the attorney-general's suit against Mansfield appears to
have been completed but on the 17th of the preceding month ; so that
it had been ripe for a decision only between five and six weeks.*
The hearings of Nunn v. Agutter, and Wienholt v. Logan, appear to
have been completed respectively on the llth and 12th days of De-
cember, I823;f so that, exclusively of the Christmas vacation, the judg-
ments in them had been waiting little more than two months. At

Online LibraryHorace TwissThe public and private life of Lord Chancellor Eldon, with selections from his correspondence (Volume 2) → online text (page 51 of 65)