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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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court, which is particularized in the passage just extracted from the
Report of the Chancery Commission. If, for all these multifarious
and burthensome matters, only three of the morning hours in each
week be subtracted from the "juridical time," the total number of
morning hours withdrawn from the court in the 33 or 34 juridical
weeks of each year will have been somewhat more than 100 hours,
or 20 sitting days of five hours each : in three years about 61 days.
Thus, then, from the 600 juridical days of Lord Eldon's three years,
there must be deducted 61 on this account, besides the 145 for the
House of Lords; leaving to the lord chancellor only 394 complete
sitting days in the three years, while the vice-chancellor has the whole
600. But if Lord Eldon, in his 394 days, disposed of 2598 matters,
it becomes clear that his rate of proceeding was one which, if a chan-
cellor could sit, like his vice-chancellor, for 600 days in the three
years, would give a result, not merely of 3469 heavy matters, which
was the equivalent of Sir John Leach's total, but of 3956 ; being 487
heavy matters beyond the performance of the ostentatiously rapid

Ascending now to the time of Lord Hardwicke, we find the result
of the tables, as between him and Lord Eldon, to be, that, in a space
of three years, Lord Hardwicke dispatched business equal to 2390
heavy matters; and that Lord Eldon, in a like space, dispatched
business equal to 2598 like matters, being an excess of 208 in Lord
Fidon's favour. This excess is the more to Lord Eldon's credit,
because, as will now be shown, he was not left at liberty from his
judicial duties in the House of Lords, to bestow in his three years,
upon the business of equity, bankruptcy and lunacy, the same, or
nearly the same, amount of time which, in the like number of years,
Lord Hardwicke was enabled so to devote.

In the three sessions, 1753, 1753-4 and 1754-5, Lord Hardwicke
sat in the House of Lords upon appeals and writs of error 92 days,
that is, not quite 23 days in each session: whereas Lord Eldon, in
the three sessions of 1819, 1820 and 1821, sat in the House of Lords
npon appeals and writs of error 116 days,* and upon committees for
privilege 29 days ;f in all, 145 days, or 48 days and a fraction in
each year. Thus it results, that Lord Eldon not only dispatched, in
the Court of Chancery, during his three years, an amount of 2598
heavy matters, being 208 more than were dispatched in the same
length of time by Lord Hardwicke, but moreover, that Lord Eldon
effected this in only 455 days, or, if 61 days be deducted as before

* For the days, 22 in number, on which he sat in the House of Lords merely to *ive
judgments, and do other appeal business on which counsel were not then heard, no
credit is taken.

f There appear to have been no sittings at all in committees for privilege during
Lord Hardwicke's three above-mentioned sessions.


for political and other duties, only 394 days : while his predecessor,
in clearing the smaller amount of 2390 like matters in the Court of
Chancery, consumed 508 days, or, 61 days being equally deducted,
as in Lord Eldon's time, 447 days : and Lord Eldon's real superiority,
therefore, when calculated, as it ought to be, with reference to the
number of days actually available for the Court of Chancery in the
course of each respective period of three years, is not merely to the
amount of 208 heavy matters beyond Lord Hardwicke, but at the
rate of 348 such matters; which would be a superiority in Lord
Eldon's favour of about fourteen per cent.

Perhaps it may be imagined that in the appeals and writs of error
before the House of Lords, Lord Hardwicke made better propor-
tionate use of his 92 days than Lord Eldon of his 116. The records
of the House of Lords* show the very contrary. They show Lord
Eldon, in his 116 days, to have dispatched 88 appeals and 19 writs
of error : Lord Hardwicke, in his 92 days, 32 appeals and 4 writs of
error. Lord Eldon, therefore, has a clear advantage, in the propor-
tion of almost three to one, for the House of Lords, which is to be
added to that already apparent in his favour upon the tabular compa-
rison for the Court of Chancery.

The advantage, large as it is, which, upon the business actually
dispatched in proportion to the time which could be made available
for dispatching it, Lord Eldon is thus found to possess over the
greatest of preceding chancellors, is in reality much more considera-
ble than even the tabular exposition shows it. This will be evi-
dent from the following circumstances.

In the first place, between the time of Lord Hardwicke and that of
Lord Eldon, the attendance of the chancellor on the legislative busi-
ness of the House of Lords had increased by much more than one-
half (upwards of 60 per cent.) In the three years of Lord Hardwicke,
from Michaelmas, 1752, to Michaelmas, 1755, the House sat in its
legislative capacity, 238 days, including 7 prorogations: in the three
years of Lord Eldon, 1819, 1820, 1821, the House so sat 385 days,
including 5 prorogations: Lord Eldon, therefore, in three years, sat
as speaker 147 days more than Lord Hardwicke, or 49 days in each
year. The reader will remember that these last are evening attend-
ances, quite distinct from and additional to the judicial functions of
the chancellor in the House of Lords, which have been already
noticed as having occupied 48 of his mornings in each of the three
years, 1819, 1820 and 1821. Moreover, these evening attendances
of the chancellor as speaker had, in Lord Eldon's time, (from the
increased prolixity of the debates and other proceedings,) become
very much longer than when Lord Hardwicke presided : so that the
excess of Lord Eldon's attendances as speaker, beyond those of

* Printed returns, Nos. IV. and V., and MS. returns furnished for this work from
the Parliament Office in the House of Lords. The printed return. No. IV., p. 27,
gives only 26 appeals instead of 32, as having been ''determined" in the three ses-
sions from 1753 to 1755. On what principle the other seven were excluded from that
return is not apparent: but credit is here given for them to Lord Hardwicke.


Lord Hardwicke, would be very inadequately measured by giving
him credit only for 49 evenings of equal duration. If the number of
hours occupied in Lord Hardwicke's three years by his 238 evenings,
estimated at an average of an hour and a half each, was in all 357,
or 119 hours in each session, Lord Eldon's 385 evenings, which
cannot be estimated at a lower average than two hours each, will
have occupied 770 hours, being an excess beyond Lord Hardwicke
of 413 hours in the three years, or 138 hours in each session. In
the evenings of each session, therefore, Lord Eldon was withdrawn
from the consideration and preparation of his judgments for 138
hours more than Lord Hardwicke.*

In the next place, it must be noted that Lord Eldon, with less
time than Lord Hardwicke for the business of the court, lacked some
of the most efficient means which Lord Hardwicke had enjoyed for
getting it dispatched. In some MS. observations upon the plan for
the constitution of a vice-chancellor, Lord Eldon dwells \vith earnest-
ness on his own disadvantage in being unable, from the growing
pressure of business in the courts of law as well as of equity, to
obtain that aid in his own court which had been extensively afforded
to former chancellors by the common law judges, by the masters in
Chancery,! and by the master of the rolls, w r hen they were not so
much occupied in their own proper departments. He speaks of the
large assistance received by Lord Bathurst and Lord Thurlow in
this way, particularly from Sir T. Sewell and Sir Lloyd Kenyon,
masters of the rolls : and then he adds generally, " It is unnecessary
further to call attention to the known practice of the court in respect
to these matters, as it appears to have obtained in the times of Lord
Hardwickef arid the chancellors appointed between his resignation
and Lord Bathurst's holding the great seal." The records of the
registrar's office, which Mr. Colville has permitted the writer to
inspect, demonstrate this usage, and testify how frequently the busi-
ness of Lord Chancellor Hardwicke, for which he has the credit in
the returns, was done in his court by other judges, while he himself
was absent upon state affairs or otherwise. But when the presence
of such auxiliaries had become unattainable from the augmented
duties of their own judicatures, which was the state of things in
Lord Eldon's time, as regarded the common law judges and master
of the rolls, if not the masters in Chancery, the whole labour of the

* For the returns of the comparative labours of Lord Hardwicke and Lord Eldon
both in the judicial and in the legislative business of the House of Lords, the writer
is indebted to the kindness of the gentlemen of the Parliament Office.

\ It does not seem clear that the masters in Chancery might not have been made
available. If the business of the Exchequer Court was so heavy (which, however,
in those days, it certainly was not), as to render it inconvenient that one of the barons
should be spared to make up the old Commission of Assistance for equity matters
(see Lord Eldon's speeches in the House of Lords, May 21st, 1829, and May 26th,
1830,) authority might well have been given to three masters, (who are, as it were,
the Puisne Judges of the Court of Chancery, and ought to perform much of the judi-
cial business now done at great expense before the master of the rolls and the vice-
chancellors,) to form at least a temporary court, which would have been highly ser-
viceable under an extraordinary pressure of arrears.


lord chancellor's court was left upon the lord chancellor himself.
And, therefore, when the tables show us that in Lord Hardwicke's
time the Court of Chancery dispatched so many cases per annum,
and in Lord Eldon's so many, we must remember that the cases
dealt with in Lord Hardwicke's time were the work of Lord Hard-
wicke and other judges, whereas the cases dealt with in Lord Eldon's
time were the work of Lord Eldon alone.

But further; the comparison between Lord Eldon's dispatch,
and that of the greatest of his predecessors, is but imperfect if con-
fined to any estimate deducible from returns of numbers only.
Causes in Lord Eldon's time, as was stated by Lord Redesdale to
the House of Lords,* lasted much longer than in the time of Lord
Hardwicke, " not only in the Court of Chancery, but likewise in that
House, from the practice of a greater number of counsel being em-
ployed on each side, and their speeches being much longer." And
Sir Samuel Romilly admittedf that suits were perhaps heard at
greater length." It could not but happen, from those circumstances,
and from the general progress of affairs in this kingdom, that a large
proportion of the matters, classed in the foregoing tables as heavy
business before Lord Eldon, would occupy and fairly demand, in the
discussion and consideration of them, more time than an equal num-
ber of the matters there classed as heavy business before Lord Hard-
wicke. With the multiplication of civil and commercial rights and
relations, with the increase of joint stock companies, with the exten-
sion of trusts and credits, and with the invention of new securities,
liens and charges, upon all sorts of property, the legal and equitable
liabilities of individuals and of aggregate bodies have multiplied :
and the number of the parties to suits, and the number of points to
be respectively adjusted among those parties, and the consequent
length of the proceedings, have increased to an amount which Lord
Hardwicke and the other chancellors of the last century not only had
never to struggle with, but probably never even anticipated.

It is undoubtedly quite true, but surely after the official returns
which have been produced, it becomes wholly immaterial to the pre-
sent question, that the arrears of the Court of Chancery, instead of
diminishing after the appointment of a vice-chancellor, did in fact,
after that arrangement, continue greatly to accumulate. The Edin-
burgh reviewers, in a caustic article of their January number for
1824, insisted that unless the equity business could be proved to have
more than doubled, which they asserted that " no man would be so
wild as to dream," the addition of the vice-chancellor's court was
sufficient to give to the lord chancellor the means, not only of keep-
ing down the arrears in the Court of Chancery, but of overtaking the
increase of appeals in the House of Lords. But, if they and their
friends were right (which it must be admitted that they were) in pre-
dicting, on the discussions respecting the creation of a vice-chancel-
lor, that the effect of it would be to occupy the chief part of the lord

Parl. Deb., June 24th, 1812. f Par!. Deb., Feb. llth, 1813.


chancellor's time in the Court of Chancery with appeals and appel-
late motions, then, to the whole extent of that large consumption of
time, the original business of the court, without blame to any one,
would necessarily be as much delayed as ever. The House of Lords
may have been a good deal mistaken in their anticipation of the effi-
cacy of the vice-chancellor's court as a means of reducing arrears ;
but that is not the question here : the matter now in issue is merely
whether, in the working of the suitors' business, after that measure
as before it, Lord Eldon gave the full and diligent judicial co-opera-
tion which the country had a right to expect from his high reputation,
position and ability : and the w T ay to determine this point is not by
inquiring what share he took of original equity business or of busi-
ness of any one other description, but what amount of business of all
sorts he dispatched in the chair of his court. He undoubtedly did
not make the same impression on the arrears which would have been
made if he could have devoted himself to the reduction of them un-
interrupted by the new appellate business arising out of the vice-
chancellor's judicature ; but the returns hereinbefore given of his
actual business authentically prove, that, in the judgment seat of the
Court of Chancery, both before and after the new tribunal had been
erected, he disposed of an amount of business equal to nay, even
larger than the amount which the most efficient of all his predeces-
sors had ever found means to get through.

The Edinburgh reviewers admit, by the very form of their argu-
ment, that it fails them, if the business of the court can be shown to
have more than doubled after the creation of the vice-chancellor's
court; but this, say they, " no man would be so wild as to dream."
And yet the fact of its having doubled, and more than doubled, is
actually proved to the waking eyes of mankind, by sober official
documents, printed, published and accessible to all the world. It
will be found, from the beforementioned return, III. No. 1, that,
during the four terms of 1812, the year preceding the vice-chancel-
lor's appointment, the average number of causes ready for hearing in
each term was only 107^, and the total number of new ones set down
in that year but 50 ; whereas, during the four terms of 1823, the year
immediately preceding the publication of that very number of the
" Edinburgh Review," the average number of causes ready for hear-
ing in each term had increased to 277, and the total number of new
ones set down in that year to 450. The excess of 1823 over 1812
in exceptions, further directions, pleas and demurrers, set down for
hearing, is in the proportion of about three to one. Of the motions
there is no return for the period preceding the vice-chancellor's ap-
pointment ; but it is presumable that the motions bear generally a
proportion to the other business, except where the other business gets
into arrear, when the number of motions is always found to increase,
from the necessity of supplying, by interlocutory orders, the want of
formal decrees. So much 'for " the wildness of dreaming that the
equity business could have more than doubled."

It had happened, too, although, on the one hand, the force of the


court had been increased by the appointment of an additional judge,
that, on the othe'r hand, during the two or three years preceding the
date of the parliamentary attack on Lord Eldon in 1823, the dispatch
of business had been seriously retarded by the long and repeated ill-
ness of Sir Thomas Plumer, the master of the rolls, who, in the
beginning of 1824, sank under his protracted sufferings.

The Lords' committee, in their report, ordered to be printed 17th
June, 1823, pp. 4, 5, draw this emphatic conclusion :

"There is now a manifest impossibility that any person holding the great seal can
find the time which is requisite for the business of the Court of Chancery and the
House of Lords, and for all the other great and arduous duties of his high office."

Sir Samuel Romilly, who seldom missed an opportunity for a reflec-
tion upon Lord Eldon, wrote thus on the 17th of August, 1814, to
Mr. Dumont :

" We are now drawing near to a close of our Chancery sittings; but, as the chan-
cellor always loses a great deal of time in the early part of the year, he makes up for
ii by extraordinary diligence at this season."

Ought it not to have occurred to Sir S. Romilly, that a chancellor,
who annually employed this "extraordinary diligence" during the
vacation, to redeem the arrears which had grown up w T hile Parliament
was sitting, was likely to have incurred those arrears, not by idle
" loss of time in the early part of the year," but by the pressure of that
parliamentary and political business w r hich, from January to July, was
ever and anon unavoidably withdrawing him from the Court of Chan-
cery to that of the House of Lords, to that of the privy council, to the
cabinet, and to the chamber of the sovereign ?

Mr. Brougham was more candid in his style of attack. He said : *

"It was not, perhaps, so much a matter of blame, as it was of excuse to the noble
lord, that he had too much to do; that he was obliged, by his political duty, to be in
one place, when his judicial duty required of him to be in another that he was now
there when he ought to be here that he was one day obliged to attend the present-
ing of the recorder's report, and on another day to attend the cabinet council. Again,
he was engaged in hearing appeals before the House of Lords; and these, with a
variety of other occupations, allowed him little or no time to attend to the efficient
discharge of his judicial duties in the court over which he presided. Amongst other
disadvantages of those various avocations to which his lordship was subjected, the
suitors had to experience this material and important one that the lord chancellor
could not attend continuously, at any one time, to hear the whole of a case, so as to
be able to take a full view of it, and to decide at the moment that all the arguments
on both sides were fresh upon his mind; but by being now called off here, and again
called off there, he was only able to collect the case, as it were, by piecemeal, and to
decide (when he did decide) upon it, after that disjointed and disconnected hearing of
it. These various distractions realized the observation, which was familiar in the
House about ten years ago in discussions on this question, on accountof the political
and judicial functions of the lord chancellor interfering with each other, that thereby
the ' judicial year was diminished, not by minutes or hours only, but by days, and weeks,
and months.' So it was now, and would continue to be until the judicial was sepa-
rated from the political character of the lord chancellor."!

These opinions, it must be confessed, were considerably at vari-
ance with those expressed by the same eminent orator on some
other occasions, where he did not hesitate to lay the whole blame of

Parl. Deb., May 18th, 1826.

f See likewise Parl. Deb., May 18th, 1827, pp. 733, 734.


the arrear upon the supineness of Lord Eldon ; but they have their
value as admissions made by a well-informed adversary. On the
acknowledged charge of delay in particular judgments, they suggest
some palliation : while on the charge now under review, that of gene-
ral arrear, they afford a complete vindication, as showing that this
arrear, so far from being caused by the laches of Lord Eldon, was
really, in the times he had to deal with, an inevitable consequence
from the constitution of the chancellor's office and court. A passage
of a speech made by Mr. Peel on the 24th of February, 1824, when
secretary for the home department, illustrates the subject very strik-
ingly :

" He had frequently been the occasion of withdrawing the lord chancellor from the
court over which he presided, to attend the recorder's report, on which it was the duty
of the lord chancellor to give his advice to his majesty. The noble and learned lord
was in this manner very frequently withdrawn from the contemplation of equity
causes, to the consideration of those cases in which was involved the question of life
or death. It had fallen to his lot to send to the lord chancellor at the rising of his
court, to inform him that, on the ensuing morning, his majesty would receive the
recorder's report, containing, probably, forty or fifty cases. On proceeding from the
Court of Chancery, the noble and learned lord would, as was his uniform practice on
such occasions, apply himself to the reading of every individual case, and abstract
notes from all of them; and he (Mr. Peel) had known more than one instance in
which he had commenced this labour in the evening, and had been found pursuing it
at the rising of the next sun. Thus, after having spent several hours in the Court of
Chancery, the noble and learned lord often employed twelve or fourteen more in the
consideration of cases which involved (he life or death of unhappy culprits. If, in con-
sequence of the various duties which the lord chancellor was called upon to execute,
some delay should arise in the proceedings in Chancery, could it be imputed as blame
to the individual, when it was known that his whole time was devoted to the service
of his country? If, indeed, it were the disposition of the lord chancellor to indulge in.
pleasures and idle amusements, he might justly be blamed for the delays which oc-
curred in his court ; but when, as was really the case, that individual had, for a period
of two-and-twenty years, denied himself every indulgence, shunned every pleasure,
and secluded himself from the society of the world, in order to devote his whole time
to the performance of his public duties, it would be the most unjust thing possible to
make it matter of crimination against him, that he was not able to compass the whole
of them."

Mr. M. A. Taylor, who had originated the examination into the
delays of Chancery, declared in the House of Commons, on the 5th of
April, 1827, after the commission had gone through its inquiries, his
intention to show, on a future occasion, that the chancellor had more
to do than it " w r as in the power of any human being to dispose of."
And Mr. John Smith, a steady member of the party opposed to Lord
Eldon, had, on the 27th of the February preceding, expressed to the
House his opinion " that no man had so much to do as that learned
lord, and that no man succeeded in doing so much. Indeed, it was
his belief that to do more was not in the power of man, and would
require superhuman abilities."

Such was the substantial character of Lord Eldon's dispatch, up to,
and for some little time after, the issuing of the Chancery commission
in 1824. It was not till toward the close of his long chancellorship
that his exertions began to slacken with age. Three quarters of a
century, though they did not in the least impair his great intellect,
were not without their effect upon his powers of labour. This was


felt and observed by the bar before his retirement in 1827, although,
for his final years, there are no official returns to indicate the precise
measure of the relaxation.

The true causes of the general arrear complained of in Lord El-
don's time were pointed out before the Chancery commission, by a
witness whose abilities, experience and accuracy, give a decisive
weight to his evidence, namely, Lord Langdale, the present master
of the rolls, then Mr. Bickersteth. He attributes the delay at that
time existing, not to neglect on the part " of the then chancellor, but

Online LibraryHorace TwissThe public and private life of Lord Chancellor Eldon, with selections from his correspondence (Volume 2) → online text (page 55 of 65)