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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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the moment, therefore, when the chancellor was thus assailed by the
Whig opposition for the heart-breaking arrear of his judgments, the
whole number appearing to be due was four, and the greatest length
of alleged arrear was from December to the following February.

The cases mentioned by Mr. W T illiams were only causes, rehear-
ings and appeals. These being the heaviest classes of business, were
the most likely to include cases on which the judgments would be
deferred for consideration. If there were, at that moment, any other
matters of weight on which the judgments were then in arrear, it is
not to be supposed that the accusation would have been confined to
causes, rehearings and appeals.

The chancellor and the government having consented, in this de-
bate of the 24th of February, 1824, to issue a commission for inquir-
ing into the means by which time and expense might be saved to the
suitors in Chancery, and the responsibility being thus shifted from the
individual chancellor to the whole body of commissioners, the de-
lays of Chancery lost, for some time, their value as a party topic, and
the sympathies of the opposition for the suitors became proportionally

In the following year, indeed, (1825, May 31,) while the commis-
sion was still sitting, Mr. Williams presented to the House of Com-
mons some petitions, six in number ; but he thought it necessary to
preface his statement, not only by declining to ground any motion on
them, but by disclaiming all responsibility for the truth of their con-

* Appendix, pp. 738. -f Appendix, pp. 733, 734.

VOL. ii. 23


tents. In the first of these, the petition of Samuel Palmer, in which
there was alleged a delay of judgment from December to March,
the blame to the chancellor turned not on the actual length of time,
which was by no means excessive, but on the fact of his having made
repeated promises to give his decision, and failed to keep them : and
this, if taken to be true, which, however, Mr. Williams declined to
vouch, would unquestionably have been a valid cause of complaint
against him, on account of the repeated fee chargeable by the solicitor
for attendance in court on each morning when the cause stood for
judgment in the paper. But in all the other five of the petitions then
presented by Mr. Williams to the House, the circumstances com-
plained of were such as, whether true or not, reflected no sort of
blame upon the chancellor; who, indeed, will be found, upon the
very face of them, to have been so clearly unconnected with the mat-
ters they disclose, that it is needless to trouble the reader with any
thing more than a simple reference to them as they stand in the Par-
liamentary Debates of May 31st, 1825.

There was, at one time, a story in circulation, about " his deferring
his judgment so long in a case of foreign fruit, that the counsel told
his lordship they would not trouble him further, as the fruit was all
spoilt and thrown into the sea." This may be an amusing tale, but
it is a groundless one. The judgment appears from the report to have
been given instantly upon the argument ; and as to the spoiling of the
fruit, the fact is, that the parcels of fruit in question had, long before
the commencement of any litigation, been delivered to the plaintiffs,
whose suit in Chancery had no relation to the fruit itself, but was
framed for an injunction and discovery, in order to stay, under par-
ticular circumstances, an action which had been brought at law for
the price of the article so delivered.*

The chancery commission of 1824 brought to public notice another
instance of a judgment unreasonably delayed, of which it may be
proper very briefly to state the circumstances. It was in the case of
Erskine v. Garthshore, mentioned by Mr. Leake on his examination
before that commission. From November, 1816, when the chancellor
heard it, expressing his opinion and promising to give the judgment
in form within a few days, the parties had allowed the matter to sleep
until 1820 ; and as the chancellor had, at the hearing, intimated his
view, which was generally found to satisfy the parties without a for-
mal judgment, there had been no great reason to suppose that the
formal judgment would ever be called for. On this occasion, how-
ever, the matter was not destined to adjust itself after this usual fash-
ion ; for in May, 1820, Mr. Leake, who was himself one of the so-
licitors in the cause, wrote to the chancellor, " humbly entreating"
his lordship's judgment. Meanwhile the papers having been removed
(it does not appear how or when) from the table which the chancellor
allotted to his unfinished judgments, he had dismissed the cause from
his mind as one that had been settled between the parties themselves.
He wrote the following answer to Mr. Leake :

* Cousins v. Smith, 13 Ves. 542.


"In the case of Erskine v, Garthshore, the papers were long ago taken from my
table. I have desired Mr. Hand* to make an inquiry for them; and, understanding
from your note that I have been mistaken in supposing that that cause was arranged,
as soon as I get the papers I will dispose of it.

" Yours, with much respect,


It should seem that the papers were never recovered : for, at the
time of Mr. Leake's examination in 1825, the judgment had not been
given, which, after such an application, it would surely have been, (as
in the instance of Ware v. Horwood,) if the materials for it had not
been extinct, f

The delay complained of by Mr. Leake as having occurred in
another case, that of Fitz Gerald v. Balfour,^ does not properly fall
within the scope of this inquiry into the lists of judgments unreason-
ably delayed ; because, though the chancellor, from December, 1817,
to November, 1821, was repeatedly pressed to pronounce a judgment
upon this case, he had already, in July, 1817, made, an order upon it,
by which he held it to have been finally decided.

Mr. Leake instances also a delay of judgment upon an important
motion in the case of Waters v. Taylor: but this delay, though appa-
rently not to be justified, had been of no more than a few months'
duration. In another part of his examination, he assigns a reason for
the delays between hearing and judgment, which goes some, though
not a great way, to exonerate the chancellor, namely, the inconve-
nient habit, prevalent among the counsel in leading business, of flit-
ting from court to court, so as often to be absent during the arguments
upon which they have to reply. Mr. Leake truly says,

" This induces great confusion ; and the judge has no other alternative (as it would
seem to me) but to either have the cause or motion properly and regularly re-argued
before him by the counsel on each side, in the presence of each other, or to postpone
his judgment until he has had an opportunity of reading or looking into the pleadings
and documents relating thereto, and by such means ascertaining what are the real
facts of the case upon which he is called upon to pronounce judgment; and the con-
sequence is, that judgment is s,o often postponed, owing to the pressure of other (per-
haps equally important) business from day to day, that one half of the time of the
court is occupied in applications for the decision of the court, or in re-stating or re-
arguing, and not unfrequently in some other shape, the causes or motions which have
been formerly heard by the judge in the manner and under the circumstances I have
already described."

Four other cases of excessive delay were mentioned by Mr. Wil-
liams to the House of Commons on the 18th of May, 1826 ; but
there were only two of them in which that delay arose from postpone-
ment of the decision. In another of them the judgment had been
given, though the minutes had not been handed to the registrar to
draw the order or decree in form : and in the fourth case, it does not
appear that the appeal was ever brought to hearing.

The instances of really blameable delay, which the industry either
of patriotism or of party has been able specifically to point out, whe-
ther in Parliament, or in the " Edinburgh Review," or before the

* An official attendant of Lord Eldon.

t Chancerv Commissioners' Report, pp. 454, 455.

* Ibid., p. 153. Ibid., p. 456.


Chancery Commission, have been thus particularly noticed, not with
any view of justifying the chancellor's admitted deficiency in some
of these particular cases, but for the purpose of reducing the exag-
gerated representations of his opponents to the simple dimensions of
truth. " Many judgments," observes Mr. Colville, the registrar, in
a communication to the writer of this biography, " were delayed, by
the occasion for supplemental bills, amendments in pleading, and
other points of procedure, which were not perceived to be necessary
till the defect was discovered by Lord Eldon himself." It was to be
lamented, no doubt, that any cases should have occurred in which
his delay of judgment gave just cause of complaint ; but a list of
eight or ten judgments blameably deferred, among several thousands
dispatched, will go very little way to make out the charge brought
against him, of delays so accumulated by his fault as to choke the
main stream of the court's business. Moreover, as the lord chan-
cellor could not appear at the bar of the House of Commons, to pos-
sess that popular body w r ith his reasons for particular doubts or parti-
cular delays, even the cases specified are far from carrying the weight
of a charge established after a hearing of both sides. It ought, like-
wise, to have occurred to his accusers, that if he had sought only his
own credit with the world, instead of considering the interests of
justice, it would have been his policy to dispatch, at whatever disad-
vantage to the abstract integrity of legal doctrines, every matter which
was beginning to look at all stale in his paper, and then there would
have been no obviously strong cases to fasten upon. But it is a
remark, and a very material one, of Mr. Colville, that " Lord Eldon
never affected a great show of work ; never selected that portion of
business which strikes the eye; to use a common phrase amongst us,
he did a great deal of work that does not count."

When any body ventured to observe upon the extremely small pro-
portion, which the few instances of judgments in arrear bore to the
great mass of business dispatched, it was 'artfully answered that a
host of examples would have been procured, but for the fears of soli-
citors and suitors lest their public virtue should be visited upon their
private interests. Times have been, when that argument would have
had some weight ; but, in these days of publicity, no man fears foul
play by reason of any offence given by him to a judge of any of the
supreme tribunals. On the contrary, it is well known to all who have
seen any thing of practice in those courts, that if any description of
suitor or solicitor exists to whom a greater latitude is permitted than
to his neighbours, who is sure to have all his right and a little
indulgence into the bargain, it is that sort of person who makes
himself notoriously troublesome and obnoxious, whom the judges,
acting, as they do, in the broad light of public observation, are a
little apt to lean towards, precisely from suspecting themselves to lean

" A ye, but if I am not prejudiced in court," an un-named solicitor
is supposed to have said, " I shall become a marked man in the sur-


rounding offices, and my business will be traversed and impeded."*
No solicitor who had had much business would have fallen into such an
error. The truth of the case is much more nearly approached in Mr.
Field's pamphlet of 1840, called " Observations of a Solicitor on
the Equity Courts,"! w r here a leading officer of the court is stated to
have remarked, that there were only two classes (of solicitors) for
whom the officers would put themselves out of their way, " gentle-
men, to oblige them ; and blackguards, to get rid of them."

But the insinuation about the numerous cases in the back ground
may be met by a more specific kind of answer. As the stir which
had been made by the Whigs in 1823 and 1824, and the consequent
appointment of the Chancery Commission in the latter of these years,
would naturally induce the chancellor, especially if at all conscious
of any previous slackness, to use more than ordinary exertion in and
about that period, for the purpose of avoiding the appearance of arrear
in his judgments, it may be presumed that the greatest accumulation
would have been just antecedent to the time selected by his opponents
for their attacks. Reference has therefore been made to the Register
Office of the Court of Chancery, for the purpose of ascertaining what,
during the four years beginning with the outset of the legal year in
Michaelmas term, 1820, and ending with Trinity term, 1824, was
the number of his judgments in arrear at the commencement of each
several term; and, by the kindness of Mr. Colville of that office, this
information has been obtained as to every kind of business, except
the motions, of which no permanent record is preserved. The
account is as follows :

Number of cases waiting fur the bird chancelbrr's judgment on fhefirsi day of each term,
'from Michaelmas, 1820, to Trinity, 1824.

1820 Michaelmas, 20. 1823 Hilary, 27.

1821 Hilary, 20. Easter, 25.

Easter, 21. Trinity, 23.

Trinity, 23. Michaelmas, 24.

Michaelmas, 20. 1824 Hilary, 25.

1822 Hilary, 24. Easter, 24.

Easter, 26. Trinity, 26.

Trinity, 26.

Michaelmas, 23.

The result is, that the largest number of judgments which, at the
commencement of any one term during this long period, were in
arrear from Lord Eldon, upon appeals, rehearings, causes, future
directions, pleas, demurrers, exceptions and petitions, that is, upon
the aggregate of all business except motions, was 27 ; the smallest
number, 20 ; and the number upon the average of all the terms,
between 23 and 24.

The list of each term was generally more or less reduced before
the term succeeding, which brought, of course, a new list of its own.
Thus, at the commencement of the term which immediately preceded
Mr. Williarns's enumeration of judgments in arrear, that is, Hilary

* Mr. Williams's speech, House of Commons, 24th Feb., 1824.
t Page 64.


term, January, 1824, there had been twenty-five cases waiting for
judgment. On the 24th of the next month, February, when Mr.
Williams made his motion, there were standing for judgment, accord-
ing to his own showing, no more than five cases, one of which,
Powell v. Mouchet, was admitted by him to have been not then
heard out. Another, Cocks v. Somers, had been heard since the
first day of the preceding Hilary term, and would, therefore, have
no place among the twenty-five cases which, on that day, were
waiting for judgment, but w r ould fall into the list of judgments due
on the first day of Easter term. Thus the list of twenty-five cases,
waiting for judgment on the first day of Hilary that is, in January
will appear to have been reduced by the chancellor, by the 24th of
February, to the number of three. And so with respect to the judg-
ments of preceding terms.

It has often been said,* Lord Eldon could decide fast enough on
political questions. True ; because on political questions there are
usually no binding precedents. What made Lord Eldon hesitate in
his legal judgment was the frequent difficulty of reconciling the equity
of the particular case before him with the general doctrines esta-
blished by the decisions of his predecessors. On the question re-
specting the disposal of Bonaparte's person, he did doubt and long
deliberate ; because that case, though a political one, was a case to
be decided not solely by considerations of public justice and expe-
diency, but in accordance also with the settled obligations of inter-
national law.

" During my chancellorship," says Lord Eldon himself, in his
Anecdote Book, " I was much, very much blamed for not giving
judgment at the close of. the arguments. I persevered in this, as
some thought, from obstinacy, but in truth from principle, from adhe-
rence to a rule of conduct, formed after much consideration what
course of proceeding was most consonant with my duty. With Lord
Bacon, ' I confess I have somewhat of the cunctative,' and, with
him, I thought that ' whosoever is not wiser upon advice than upon
the sudden, the same man is no w r iser at fifty than he was at thirty.'
I confess that no man ever had more occasion than I had to use the
expression, which was Lord Bacon's father's ordinary word, ' You
must give me time.' I always thought it better to allow myself to
doubt before I decided, than to expose myself to the misery after I
had decided, of doubting whether I had decided rightly and justly.
It is true that too much delay before decision is a great evil ; but in
many instances, delay leads eventually to prevent delay; that is, the
delay, which enables just decision to be made, accelerates the enjoy-
ment of the fruits of the suit: and I have some reason to hope that,
in a great many cases, final decision would have been infinitely
longer postponed, if doubts as to the soundness of original judgments
had led to rehearings and appeals, than it was postponed, when infi-
nite care, by much and anxious and long consideration, was taken to

* See Lord Brougham's "Sketches of Statesmen," Second Series, pp. 60, 61.


form an impregnable original decree. The business of the court
was also so much increased in some periods of my chancellorship,
that I never could be confident that counsel had fully informed me of
the facts or of the law of many of the cases ; and there may be found
not a few instances, in which most satisfactory judgments were pro-
nounced, which were founded upon facts or instruments with which
none of the counsel who argued the cases were acquainted, though
such facts and instruments formed part of the evidence in the cause.

One remarkable case was and Legard.* This had been heard

at the Rolls, and an elaborate judgment given upon it. A case was
sent to the Court of King's Bench for the opinion of the judges, and
they certified their opinion after an elaborate argument. The cause
then came on, upon further directions, before another branch of the
Court of Chancery, and judgment was given. This produced an
appeal to me as chancellor. The matter was long and ably argued ;
but, before the attorney-general, afterwards Lord Gifford, replied, I
took the papers to my house, and afterwards going into court, I
stated that the cause might stand over for a week: and then men-
tioning certain circumstances which I had discovered from the papers,
and which had never been mentioned in the course of any of the
hearings, I put it to the attorney-general to tell me, at the end of the
week, whether, instead of there having been such a judgment as was
appealed from, there ought not to have been, upon the very first
hearing, a dismissal of the bill. When the matter was again men-
tioned in court, it was admitted by all parties that such ought to
have been, and must be, the end of the suit. In the last session,
1827, there was an appeal from the judgment of the vice-chancellor
in a cause to set aside a lease, as having been improperly obtained
from a landlord by his steward and attorney ; the bill treating the
lease as good at law, but that, being so obtained, it should be
declared in equity to be void. After all the arguments in the court
below and at the bar of the House of Lords, I called for the lease.
It was then found not to be a good lease at law, and that equity had
nothing to do with it."

That the deliberation bestowed by him upon his judgments had
the effect, which, in the foregoing extract he ascribed to it, of saving
the parties from the expense and delay of re-hearings and appeals,
was admitted by Mr. Brougham in the debate of 5th June, 1823 ;
who, in impeaching the credit usually given to Lord Eldon for the
fewness of the appeals from his court to the House of Lords, assigns
this odd reason, that " his judgments were known to be given so
advisedly, that he would not hastily change them."

Mr. Basil Montagu, in his evidence before the Chancery Commis-
sion, 22d July, 1825, f refers to a case of Exparte Blackburn, which

* The cause of Johnson w. Legard, which, according to Turner and Russell, 281,
went through all the stages here recapitulated by Lord Eldon, is probably the case lo
which he refers, though the discovery made by himself is not mentioned in that report.

(Report, pp. 411, 412.


he had argued two or three times, and in which he had been quite
satisfied with the validity of his own argument. He says,

"I mentioned it again and again to the court, but I could not obtain judgment.
At last the lord chancellor stated that he had been deliberating upon the case for
man}' hours during the night, and that there was one point which had escaped me in
my argument, to which he wished to direct my attention ; and he was pleased to direct
my attention to it, and to desire it to be reargued: and upon rearguing it, I was satis-
fied that he was right and I was wrong; and whatever may have been the cause of
the delay, the consequence has been that he has prevented the injustice which I
should have persuaded him to have committed."

In the House of Lords, on one occasion, when the cases printed for
the use of the peers had omitted certain essential particulars, Lord
Eldon said,

"It will be a consolation to me, during my remaining life, knowing that it has been
said that I have been dilatory in decision, that I have, by looking at the original instru-
ments, saved to the right owner many a landed estate, which would otherwise, probably,
have been given to his adversary."*

About 1833, at dinner in Merchant Tailors' Hall, he related, to Mr.
John Atkins, this example of the benefit resulting from his known
practice of perusing the papers in suits of difficulty : " Lord Aber-
gavenney," said Lord Eldon, "told me he once compromised a suit,
because his attorney had told him there was in his case a weak
point, which, though the opposing parties were not aware of it,
that old fellow would be sure to find out if the case came before him."

Conversing on these subjects with Mrs. Forster, he said to her, u I
was often accused of slowness in my decisions, but really it was some-
times incompatible with justice to decide quicker. Now I w r ill tell
you what happened in one case : it was a cause where one party had
sold an estate, and the purchaser had afterwards declined completing
the bargain, and the estate was thrown back on the seller's hands ;
this was a suit to compel the completion of the sale and the payment
of the purchase-money. Well, it was argued before me at great length,
and extracts from various documents were read in court, and I was
then pressed by the counsel to deliver my judgment the following day.
I refused to do this, stating that I made a rule to read over and con-
sider all the written documents brought into court, and that, as there
was an important question to be discussed that night in the House of
Lords, I should be unable to do this before the next morning. The
counsel, however, still pressed me, observing that it was so clear that
the purchase must be completed, that a decision to that effect would
satisfy all parties. I, however, refused ; I examined the papers that
night, and when I went into court in the morning, I called the counsel,
and said, < Gentlemen, I will not fix to deliver my judgment in this
cause to-morrow, but I will fix to-morrow week, in order to give you
time to consider a point to which you have not adverted in your argu-
ments. The question is, whether this gentleman is to be compelled
to complete the purchase. Now I am of opinion that he cannot be
compelled, because the possessor of the estate has no power to sell ;
if you will look at the whole of the papers I examined last night, you

* Ruscombe r. Hare, 6 Dow, 16.


will find this to be the case.' At the end of the week the counsel
came and said, l We give in ; we have nothing to say against the fact
your lordship has pointed out.' It was quite necessary never to trust
to the lawyers ; it is their business to make a good case for their clients ;
it was mine to administer justice."

The following passages occur in a letter without date, from Lord
Eldon to the Rev. Matthew Surtees :

"That I may be the object of malignity, and that I shall continue so to be, after

Online LibraryHorace TwissThe public and private life of Lord Chancellor Eldon, with selections from his correspondence (Volume 2) → online text (page 52 of 65)