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

what has passed, nobody can doubt: the victim of it I will not be. I thank God I
have something of the bene actx viise recordatio, which affords me a consolation which
the world cannot take away: and, when I am gone, perhaps that world may be dis-
posed to do more justice to my memory than, whilst I am yet in it, I can deem to be
probable ; though I can assure you I receive from many parts of the kingdom, and
from strangers to me, what would relieve me from the uneasiness which what has
been passing might have created, in the mind of a man doubting whether he had
done his duty to the best of his power.

"My habits of doing judicial business I have formed and adhered to upon principle
and upon conviction that they were right; I have done much good by adhering to
them infinite good.

"As to what I hear of my doubts, from persons who, having no doubts upon any
subjects, however intricate and difficult, set up as the Ductores Dubitantium, I console
myself by recollecting what a most eminent chancellor in France" (D'Aguesseau)
"said to his son.*

"The truth is, I don't like to risk, by velocity, transferring property from those to
whom ii belongs, to those who may apparently, but not really, have a title to it.

"Be assured that glad as I should be to retire, I will never retire in compliance with
the views of the malignity which assails me."

The Anecdote Book has these further notices of the same subject :
" I have before recorded that I thought it my indispensable duty,
as a judge in equity, to look into the whole record and all the exhibits
and proofs in causes, and not to consider myself as sufficiently informed
by counsel. This, I am sure, was right, not only because, in causes
originally heard before me, I learnt much of what was necessary, of
which counsel had not informed me, but because, upon re-hearings
of causes before me, which had been originally heard by others, this,
my opinion, was strongly confirmed. With respect to what obtained
in judgment as to this, before Lord Kenyon and others my predecessors,
it ought to be observed, that the briefs of counsel, as prepared by the
old solicitors of the court, though not half so voluminous as briefs in
later days, contained frequently a very complete abstract of all that
was material of fact, and a statement, usually very accurate, of all
that was material in law and precedent, thereby counsel being enabled,
notwithstanding the hurry of business, fully to inform the court in
those days."

" Lord Thurlow told me that he made it a rule always to hear the
counsel who were to support in a cause that opinion in favour of
which he had received an impression. I asked him what had led him
to adopt that rule. He said that if counsel had done their duty, they
must know every point of their client's case, every strong point and
every weak point ; that a sort of impression was made upon his mind
by what he heard from counsel, but that counsel, who knew the weak

* See the quotation hereafter.



362 LIFE OF LORD

points in their case from reading, and which he could only learn from
hearing, frequently gave him credit for being aware of objections
which really had not occurred to him, which they, however, stated
as having probably occurred to him, and which they proceeded to
discuss and to answer. That it frequently, however, happened that
the objections stated by them, and which they thought had, but which
had not, occurred to him, when he came to consider them, were found
to be unanswerable, and such as obliged him to change his first opin-
ions ; and, as a proof of this, he proceeded to mortify me by saying,
that I had often given him credit for thinking of objections which had
escaped him altogether, and in attempts to answer them had satisfied
him that I was wrong, or rather that my client was, and that he had
been likely to be wrong also. If this was a wise rule for a judge to
adopt, how few have adopted it! I remember Lord Thurlow stating
to Mr. Justice Gould, who had been with two masters, hearing a cause
for him in Lincoln's Inn, that he had been a long while about it. The
old judge replied, ' God grant that when you are as old as I am, your
sleep may be as little interrupted as mine is by any reflection that in
judgment you have been too hasty."

In the different modes of transacting judicial business, as in most
other affairs of life, there is a balance of advantages and disadvan-
tages. One judge gives a quicker judgment, but less to be relied
on: another's decision is slower, but more secure from after question.
If the facility of the quicker judge dispose early of original causes,
the reputation of the slower may be a material check upon appeals.
Thus have the parties to some long-delayed judgment of Lord Eldon
arrived at a final rest from litigation, while other suitors, in causes of
the same date, more summarily, but less satisfactorily, and therefore
less conclusively, adjudicated, have remained still impounded before
an appellate tribunal. Nor were the parties to the suit in hand the
only gainers by his caution. Sir George Sinclair, in the debate upon
the Scotch courts, 3d July, 1839, adverts to a conversation between
himself and Lord Eldon, in which Lord Eldon, vindicating his own
practice of deliberation, observed that a matured and well-digested
judgment, such as by taking ample time he was enabled to prepare,
"had not only set that particular question at rest, but had had the
effect of preventing other parties from wasting time and incurring
expense, by bringing forward claims of a similar description."* It
is to be recollected, therefore, that if he was too prone to doubt the
soundness of his own conclusions, (a defect rarely noted in ordinary
men,) it was because he looked upon the decision of a matter before
him to be not for that particular case alone, but for all other cases
resembling it in all subsequent time ; and thus, if justice was too long
protracted in the first-occurring instance of a class, it was, by that
very protraction, secured in every instance occurring afterwards.

The considerations that suspend the decisions of judges, and make
them pause with anxiety in the execution of their deeply responsible

And see a speech of Lord Eldon's in the House of Lords, Parliamentary Debates,
30th June, 1823.



CHANCELLOR ELDON.

office, are justly referred by Blackstone to the circumstances of a free
and highly-civilized country, and of a wealthy and vastly populous
territory,

" Which," adds he, " whenever we are willing to exchange for tyranny, poverty,
barbarism, idleness, and a barren desert, we may then enjoy the same dispatch of
causes that is so highly extolled in some foreign countries. But common sense and
little experience will convince us, that more time and circumspection are requisite
in causes where the suitors have valuable and permanent rights to lose, than where
their property is trivial and precarious, and what the law gives them to-day may be
seized by the prince to-morrow. In Turkey, says Montesquieu, where little regard
is shown to the lives or fortunes of the subject, all causes are quickly decided; the
basha, on a summary hearing, orders which party he pleases to be bastinadoed, and
then sends them about their business; but in free states, the trouble, expense and
delays of judicial proceedings are the price that every subject pays for his liberty."-
3 Bla. Com. 423.

I. 3.

The question, however, which is of most importance to Lord
Eldon's judicial reputation, is not whether he may have deserved the
charge of too long postponing some particular judgments on difficult
questions, but whether there be any colour for the other accusation,
that the general arrear, admitted to have existed in the Court of
Chancery and in the House of Lords during a great part of his time,
was owing to his fault.

In the first place, this arrear, though certainly a heavy one, was
not really what primd fade it appeared to be. In the pamphlet
already quoted (" Observations on the Judges of the Court of
Chancery,"*) the author, who is a barrister in large practice, has
the following passage respecting the arrears in 1823, which probably
affords a pretty fair sample of their character in any other given year
or years of Lord Eldon's time :

On looking over the present cause list, out of the first causes which stand over
generally, I observe as many as fifty-eight which stood over in the paper of February,
1822, and they have, perhaps, been long since determined, by being set down again
for hearing, in the same or another name; and I do not doubt but that in the list of
causes, which make up the number against the court, (for those who erroneously
calculate its delay from the cause paper,) upwards of sixty causes appear, which
have been reset down, and not struck out of the paper, or are now at an end, from
deaths of parties, or abandonment of the suit. Causes at the hearing are often allowed
to stand over generally, at the request of the suitors, to add parties, or on account of
deaths or change of interest after the cause was first set down ; and the suitors neither
proceed nor apply to the registrars to strike the causes out, and there they remain,
from year to year, a useless incumbrance to the paper. I know, myself, that forty of
those causes, which have been printed and carried forward as arrears from time to
time, in the cause paper, have been there for many years, and not one of them for a
less period than three or four years; and I have not any doubt but there are some of
them that have stood over for ten or twenty years ; and yet their prosecution by the
parties has been abandoned for many years. I was well assured, from experience,
that the causes in the Court of Chancery nominally in arrear were most of them causes
prematurely set down and not ready to be heard, and therefore I was at the cost of
ascertaining the state of fifty of the present causes, which are set down for hearing,
beginning at Parker v. James, and ending at Brandon v. Bowden ; and I find, that only
in nine of them depositions have been published: and when I tell the reader that, till
publication has passed, and witnesses have been examined, and depositions published
and given to the solicitors, the briefs cannot be prepared, and a Chancery cause is not

* Published by Mr. Murray.



364 LIFE OF LORD

ripe forbearing, he will agree with me, that when men reason on the delays of the
court from the state of the cause paper, they reason on erroneous premises, and talk
about what they do not understand. The foregoing facts, and the Appendix, No. 2,
demonstrate that, among the two hundred and thirty-six causes treated as in arrear in
February, 1822, there really were not so many as fifty actually and bonajide in arrear.
Pp. 38 to 41.; and see the Appendix to the Pamphlet, Nos. 2 and 3.

When the vice-chancellor's court had been a few years esta-
blished, it was artfully said, "Lord Eldon scarcely ever hears a
cause." Literally, as to causes, this was true: and hence a belief
arose among persons who, being unacquainted with the vocabulary
of the register's office, supposed the duty of the Court of Chancery
to consist almost wholly in the " hearing of causes," that Lord Eldon
did hardly any business in his court. They were not aware that, in
addition to the hearing of causes strictly so called, and of matters in
bankruptcy and lunacy, which are not called " causes" but "peti-
tions," he was sedulously employed in the hearing of appeals, which
are in fact causes of the heaviest description, though not entered in
the paper under the name of " causes :" and still less were they aware
of the extensively prevalent practice already mentioned, of bringing
motions before Lord Eldon, which involved the material points in the
most important of the causes pending before the vice-chancellor, for
the purpose of getting Lord Eldon's opinion in an interlocutory way,
and so saving the expense and delay of ulterior proceeding. Mr.
Crofts, the registrar, who was examined in 1812, March 9th, before
Mr. M. A. Taylor's committee of that year, gave the following evi-
dence :

"State from your own knowledge and experience what is the reason that that in-
terval, which used to be passed in hearing the causes, is exhausted by the continuance
of the seal? It arises from motions being of that high consequence that the point in.
the cause is frequently determined, and takes up a great lime."

This practice, from the prevalent opinion of its utility and conve-
nience, continued to subsist and increase. In 1812, Mr. Whitton, a
veteran solicitor, whose evidence on this point has been before
referred to, was asked, in the course of his examination before the
chancery commission,*

" Q. Has that practice, of the lord chancellor deciding causes upon motion in
the way you have mentioned, increased considerably since you first knew the practice
of the court? Yes, in this way: I have frequently been in causes, and been in court,
when interlocutory applications have been made; and, to further justice between the
parties, my lord chancellor has said frequently that he would decide the question, so
as to set the parties at rest upon it.

" Q. Do you consider such a course of proceeding the most beneficial to the
interests of the suitors generally 1 I think the application of the time of the lord
chancellor is highly beneficial to the suitors in that way.

" Q' I s not the quantity of such business, and the time it occupies, such as in a
great measure to prevent the lord chancellor attending toother matters in his court 1
Such matters take up a very considerable proportion of my lord chancellor's time,
and of course he cannot hear other matters whilst he is hearing them."

Mr. Hamilton, also an experienced solicitor, gives the following
evidence:

I know that it has frequently happened, that when parties have wished to have the
chancellor's opinion as soon as they could, they have endeavoured to frame a bill

* Chancery Commissioners' Report, pp. 75, 76.



CHANCELLOR ELDON. 365

for the appointment of a receiver or for an injunction, in order that they might, on the
motion for such receiver or injunction, discuss the question in dispute between them.

" Q. Has it not been the general habit of the profession, when the chancellor's
opinion was given upon a motion, to consider that as decisive of the cause, and not
to go further upon it? It has: it has been considered perfectly useless to go further.

" Q. Has that habit proceeded from the confidence felt in the chancellor's judg-
ment, adverting to the elaborate consideration he bestows on motions before they are
decided? Undoubtedly. Another reason may be.fthat the judge, if the cause came
to a hearing in the court below, would pay that deference to his judgment, that they
would decide in the same way: or, if it came before /dm, it would be a judgment of
the same chancellor on the same question; it is known that he would not give an
opinion without reading all the pleadings and maturely considering the question, and
therefore it would be practically useless to go further."*

Very often, says Mr. Hamilton,!

"A great deal of the chancellor's time is taken up with applications on the part of
bankrupts in custody, who are brought up on writs of habeas corpus to be discharged.
These applications frequently occupy a considerable time, and come on to the inter-
ruption of every other business."

The mode in which Lord Eldon's political adversaries chiefly de-
lighted to impeach his efficiency was the invidious one of comparison.
They alleged that his distinguished predecessor, Lord Hardwicke,
had had as much to do, and had done it effectively. This succinct
and popular form of disparagement appears to have been first devised
about the year 1812. Lord Grey, in the House of Lords, on the
24th of June, in that year, intimated that the number of bills in Chan-
cery was then less than in the time of Lord Hardwicke ; and Sir
Samuel Romilly, in the House of Commons, on the llth of February,
1813, resisted the vice-chancellor's Appointment Bill, on the ground
that the business, "strictly so called, of the Court of Chancery, had
not increased since the year 1750," when Lord Hardwicke was chan-
cellor : acknowledging, at the same time, that " there was certainly a
very great increase in the bankrupt business."

Mr. Raynsford, one of the registrars examined before the Chan-
cery Commission, gives a very different account. The following
questions and answers occur in the evidence of this practical wit-
ness :

"Except when attending the House of Lords, or called to attend the councilor
elsewhere on public business, does the chancellor sit constantly in Lincoln's Inn
Hall? Yes.

" With those exceptions, has not the chancellor sat two hours later than chancel-
lors usually sat? The business has very much increat-ef/.

" Do you remember Lord Rosslyn's time ? Yes. In Lord Rosslyn's time the busi-
ness did not require so much."

Even without this direct testimony, a reflecting inquirer would have
been disposed to question Sir S. Ilomilly's statement, upon the ground
of general probability. The total amount of personal property be-
longing to the suitors of the Court of Chancery which was lodged
with the accountant-general of that court, in 1750, the period men-
tioned by Sir S. Romilly, was 1,665, 160/. By the end of the same
century, that amount reached 17,000,000^. : and between 1800 and
1820 it increased to 34,000,000/. It is true that the ratio between

Chancery Commissioners' Report, pp. 95, 96. f Ib. p. 95.



366 LIFE OF LORD

the aggregate amount of the property in suit and the number of the
suits themselves is not a certain one ; although it is impossible to sup-
pose that the property could have increased in the ratio of more than
ten to one, without a vast addition to the quantity of business con-
nected with it. But there is a nearer test, the proportion between
the number of accounts to which the property was standing in the
books of the accountant-general at the two respective periods.
In 1750, under Lord Hardwicke, the number of these accounts was
1006 : in 1820, under Lord Eldon, it was 7521.

"For about thirty years last past," says the report of the Lords' committee (ordered
to be printed 17th June, 1833), by virtue partly of standing orders in this House, and
partly by the practice and usage of the House, the Court of Chancery has been made
an instrument in the executon of local acts of Parliament, relating to canals, naviga-
tions, aqueducts, avenues to bridges, inclosures, docks, railways, tram-roads, opening
and paving streets, supplying towns with water and gas, and various other specula-
tions, by which acts the purchase-money of lands, taken under the authority of Parlia-
ment for such purposes (where the titles are doubtful, or cannot be immediately
completed) is directed to be paid into the Court of Chancery, there to remain until,
by proceedings in that court, the titles can be tried, or means found by that court to
clear doubtful titles; and it is obvious that, in every case, in which Parliament has
thus burthened the Court of Chancery, this new species of business operates against
the dispatch of the ordinary business of the court."*

But these are only opinions, and grounds for general inference.
Let us now refer to precise official returns of the judicial business
actually done by the two lord chancellors between whom the paral-
lel of Sir S. Romilly is drawn.

The printed documents from which the succeeding tables and cal-
culations have been prepared are these :

No. I. Appendix B. C. and F. to report from House of Commons'
Committee appointed to inspect Lords' Journals. Ordered to be
printed, 27th May, 1811.

No. II. Returns to orders of the House of Commons dated 23d
May, 1821, and llth February, 1822, from the Registrars of the
Court of Chancery, the chancellor's principal secretary, the Secre-
tary of Bankrupts, and the Secretary of Lunatics. Ordered to be
printed, 12th February, 1822.

No. III. Returns respecting the Courts of Chancery, Exchequer
and Bankruptcy. Ordered to be printed for the House of Com-
mons, 25th March, 1836.

No. IV. Account of Appeals entered and determined since 1750,
as stated in Appendix to Report from House of Commons' Com-
mittee on delays of suits in Chancery. Ordered to be printed, 18th
June, 1811.

No. V. Accounts relating to Appeals and Writs of Error, brought
from the Lords, 4th June, 1823, and ordered by the Commons to
be printed, 12th June, 1823.

The document No. III. contains a return of the number of bills
filed from 1750 to 1754, from 1760 to 1764, from 1770 to 1774, from
1780 to 1784, from 1790 to 1794, and from 1800 to 1835. In order
to give the utmost benefit to Sir S. Romilly's statement in favour of
Lord Hardwicke, let us take the three years of Lord Hardwicke's
* Lords' Report, 17th June, 1823, p. 10.



CHANCELLOR ELDON.



time in which the return shows the greatest number of bills filed.
These years are 1752-3-4, in which the aggregate number of bills
filed is 4891. In none of the recorded periods from 1754 until Lord
Eldon's accession, did the amount of bills filed in any three years
amount to 4500. But in the three years next preceding that in which
Sir S. Romilly's speech was made, the total number of bills filed had
risen to 6654, an increase of about 36 per cent, upon the three fullest
years of Lord Hardwicke. And this is a result given in mere num-
bers^ without reference to the augmented weight of the modern busi-
ness as compared with that of older days a consideration which will
presently receive due notice.

But it would matter little to show that in Lord Eldon's time, as
compared with the time of his predecessors, there was more business
to be done, if the business which he himself actually did was less
than had been done by them. Let us come, therefore, to closer quar-
ters in working out the parallel between Lord Eldon and Lord Hard-
wicke. In No. I. Appendix B. there will be found, among other
returns from the officers of the great seal, an account furnished by the
deputy-registrar, setting forth the business of the Court of Chancery
in the ten years from Michaelmas, 1745, to Michaelmas, 1755, during
all which time the chancellor was Lord Hardwicke, and in the ten
years from Michaelmas, 1800, to Michaelmas, 1810, during almost
nine of which the chancellor was Lord Eldon. This return is con-
fined to " the business of the Court of Chancery, strictly so called;"
and it gives this summary of causes, exceptions, and further direc-
tions, pleas and demurrers, cause petitions, re-hearings and appeals,
and motions, disposed of in the lord chancellor's court.



1745 to 1755.




1800 to 1810.


A. D.




A. D.


?


Lord




4294


1800,1


51485


Lough-




1746,7


4269


1801,2


5148"!


borough.




1747,8


4249


1802,3


5134 |






1748,9


4500


1803,4


5627 V


Lord


T ^wA


1749,50


4564


1804,5


6478 f


Eldon.


.bora
Hardwicke.


1750,1


3314


1805,6


6045J


T nrA




1751,2


4323


1806,7


6393


juorci
Erskine.




1752,3
1753.4
^-1754,5


4515
4-433
3742


1807.8
1808,9
1809,10


7275-1
6663 \.
6906J


Lord
Eldon.



42,203 j 60,817

Let it not be forgotten, that the comparison thus instituted is not
between Lord Eldon and the average of preceding chancellors, but
between Lord Eldon and the one most eminent man of all who had
ever preceded him. And now, what is the result ? It is, that through
the only ten years of Lord Hardwicke's chancellorship whereof we
have any exact record, the annual average of the matters dispatched
in the Court of Chancery was 4220 ; while, through the first ten years
of the present century, the annual average of the matters dispatched
was 6081, being an excess of almost one half. And this increase of
business and of dispatch in Lord Eldon's time was a progressive one.



368 LIFE OF LORD

The last three of the ten before-mentioned years of Lord Hardwicke
give an average of 4230, or 14 beyond the average of the seven
years by which they are preceded ; but the last three of the before-
mentioned years of Lord Eldon give an average of 6948, being 1238
beyond the average of the seven years preceding them, and 2718
beyond the average of the last three of the ten recorded years of
Lord Hardwicke.*

Here, then, is a tolerably conclusive proof of Lord Eldon's com-
parative dispatch in " the business, strictly so called, of the Court
of Chancery" before the constitution of the vice-chancellor's court.
There are no returns from which an accurate comparison could be