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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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to the general inability of the court to dispose of the business which
comes before it ;" and that inability he traces to several causes.
These are, the state of the law, and the mode of its administration ;
the insufficiency of the time applied to judicial purposes, and (which
he places first in order) the want of an adequate number of courts to
dispatch the business. With respect to the state of the law and the
mode of its administration, he recommends a general revision of the
whole system. With respect to the insufficiency of the time devoted
to judicial purposes, he is of opinion that it would scarcely be ad-
visable to increase it, either by abridging the vacations, or by requir-
ing from the judges a greater number of hours on the days of their
sittings. But he insists on the necessity of supplying this defect,
and the other which is akin to it, the want of an adequate number of
courts, by the creation of additional judges, a remedy which the
legislature has now, at length, provided. He observes, that an ac-
cumulation of arrears may begin and increase, notwithstanding the
utmost exertions of a most diligent judge ; and that a judge has no
right to hurry. He adds " What I conceive to be the fault is, that
assistance is not obtained as soon as the arrears begin to exceed a very
limited amount." And he gives it as his opinion that it would be
impossible for the then existing number of judges, by alF the efforts
which could reasonably be expected of them, to keep down the busi-

This important testimony, though it does not relieve Lord Eldon
from the charge before dealt with, of deferring particular judgments,
yet fully exculpates him with respect to the general arrear in his court.
And it is an exculpation the more conclusive, because, if Lord Lang-
dale had been a witness capable of being in any the slightest degree
warped on such a subject by his political opinions, those opinions
were adverse to Lord Eldon and to his party.

Lord Lyndhurst's testimony to a similar effect, delivered to the
House of Lords, in his speech of the 12th March, 1829, has already
been inserted at the place of its date.

But how was it with the chancellors of other days? Had they the
good fortune to encounter no pressure of business, which it was im-
practicable to keep down ? no remonstrances of suitors ? no invectives
of pamphleteers? So far were they from enjoying any such exemp-
tion, that the very best of them were assailed with just the same
imputations of general arrear which for so many years were repeated
against Lord Eldon : only, as there was not, in their cases, the same


peculiar political interest mixed up with the subject, the complaints
against them were not so industriously, and therefore not so exten-
sively, circulated.

It is related, indeed, that Sir Thomas More, when lord chancellor
to Henry VIII. , did once so master the business of his court, as ac-
tually to clear all matters from its list. But Fuller, who, in recording
this achievement, remarks, after his quaint fashion, that, " as More
was born in Milk Street, so he was the brightest star that ever shone
in that via lactea" preserves a quatrain, indicating how great a feat
such a clearance was considered, and how unlikely ever to be re-
peated :

"When More some time had chanc'Jlor been,

No more suits did remain :
The same shall never more be seen,

Till More be there again."

In the reign of James I., Lord Coke is found complaining that " the
Chancery embraceth so many causes, as the chancellor and master
of the rolls cannot possibly determine them." Yet the master of
the rolls was Sir Julius Caesar, and the chancellor Lord Bacon himself.
Lord Keeper Williams, who succeeded Lord Bacon, made a great
effort, but of a kind which neither bench nor bar could have sustained
for any considerable time : he went into court two hours before day-
light, and continued his sittings till eight or nine in the evening.

A pamphlet, quoted in the " Quarterly Review" for October 1823,
and entitled " Proposals for Regulating the Law," by Calthorpe, after-
wards Recorder of London, speaks bitterly of great delays and into-
lerable charges in the time of Littleton, Lord Keeper to Charles I.
Cromwell attempted a remedy, by ordinances which he issued to the
commissioners of the great seal, Whitelocke being one ; but the com-
missioners were unable to work them. Lord Keeper Guildford, after
the Restoration, endeavoured to imitate More and Williams; and he so
far succeeded that, as we learn from Roger North, his remanets, if any,
were few. But it was a short-lived exertion : and mark what North
relates to have followed :

"This continued Ji// the Parliament, and more unhappily, his own weakness came
on, and made him unable to continue that close application to the business of the
court; and for want of due time allowed for hearing of causes, the reins of the court
grew loose, and the paper became loaded with remanets, which to see was, of itself,
to him a sickness. And I am confident that it was one and not the least ingredient,
in bringing forward upon him that fatal distemper, which, after it had once seized,
never left him till he died."

The " Quarterly Review," in the able article from which the refer-
ence to Recorder Calthorpe's pamphlet has already been quoted, refers
to another pamphlet, written during the chancellorship of Lord Somers,
by a Mr. Williams, a name of fear to chancellors, in which that
author affirms of the Court of Chancery,

" That the charge and delay in proceedings there are grown to be such that, in
causes of great wrong and oppression, the remedy is worse than the disease; and
most men, of small and independent estates, that come thither for relief, often meet
with ruin by the very charge of the proceedings."

In the reign of Queen Anne, while Lord Cowper held the great seal,


a work came out entitled " Reasons humbly offered to both Houses of
Parliament for passing a Bill to prevent Delays and Expenses in Suits
in Law and in Equity;" and herein, among other like remonstrances,
the author has this passage :

"The unavoidable expense, as well as unnecessary delay, in the prosecution of
suits in the courts of law and equity, especially in Ike latter, are become so exorbi-
tantly great and burthensorae to the subject, that they may be justly ranged amongst
our first-rate grievances."

The " Quarterly Review" adds one more extract, from a pamphlet
the name of which he does not mention, but which was levelled
against Lord Hardwicke himself

" The High Court of Chancery is incontestably the most dilatory, as well as the most
expensive : an oppression which his majesty's subjects have long laboured under, and
universally complained of; insomuch that the interrogatory proverb hath not been
more jocularly than pertinently proposed, to such who, with more precipitation than
precaution, resolved to engage in Chancery suits: ' Will you be hung up six or eight
years in Chancery ?' implying, that his cause may so long depend there, until his
purse and patience are exhausted, his health impaired, and his person (by vexation)
emaciated, like a skeleton in the study of a physician, or an anatomy in the office of
a surgeon : for the delay of justice is said to be the denial thereof; since what is not
done in due time is not done at all: 'Justitiae procrastinatio, ejusdem fit abnegatio.' "

Nor was Lord Hardwicke censured only for the general arrear of his
court; like Lord Eldon, he was greatly blamed for his own individual
delays of judgment after hearing. Mr. Cooksey, in his "Lives of
Lords Somersand Hardwicke," inserts a letter from "a gentleman of
the law," who complains "howjfcw decrees Lord Hardwicke made in
comparison to the many causes that came under discussion in his court ;"
and that "the length of time to which every cause was protracted
made the suitors weary, and glad to submit to any decree suggested
and agreed upon by their counsel."

In the examination, before the Chancery commissioners, of Mr.
Forster, a solicitor of great respectability and experience, who had
practised in Chancery for about forty years from 1774, there occur
these questions and answers:

" Q. The commissioners understand you to say, that during the times of Lord
Loughborough and Lord Thurlow, there were similar complaints of delay as there
are now 1 A. No doubt about it.

" Q. Had you at that time, then, as a solicitor, experienced any delay to be com-
plained of, in getting your cause heard and decided after it was set down for hearing?
A. Yes, uniformly great delay in waiting for hearing; and occasionally great
delay in waiting for decision."

Lord Eldon had himself a story of a very old lady, a peeress, who
came into court in person when Lord Thurlow was chancellor, to be
examined touching her consent to the transfer of some property. This
business having been done, Lord Thurlow told her he would not detain
her. "But," said she, " I should be glad if your lordship would let
me stay a little longer ; for my cause has now been in court eighty-two
years, and I want to see how they are going on about settling it." Lord
Eldon used to say he would leave it to others to guess which first
came to an end, the old lady or her cause.

Lord Thurlow, in many of the qualities of his mind, exhibited a
striking contrast with Lord Eldon, and possessed especially that one
VOL. n. 25


judicial requisite in which Lord Eldon was alleged to be most defi-
cient, a ready and bold decision. Yet the complaints of general delay
in the Court of Chancery were as loud in his time as in the times that
preceded or followed him. He laid the whole blame on the solicitors.
" I hear no complaints," he would say, " but from persons who have
been themselves the cause." It may have been true, in all times,
that much of the delay has been owing to solicitors : but it is also true
that no diligence of theirs could ever have relieved the system from
the just imputation of being dilatory and costly, and that at no time
were its modes of practice sufficiently simplified ; nor, until the recent
creation of two new vice-chancellors, was its regular establishment of
judges sufficiently numerous to meet the exigencies of the business.
Mr. M. A. Taylor, it is true, in his speech on the 30th May, 1821,
told the House of Commons the following fact which he said he had
learned from Mr. Justice Wilson, one of the commissioners of the great
seal in 1792 with Mr. Justice Ashurst and Lord Chief Baron Eyre :

"His late majesty had commanded Lord Chief Baron Eyre, the principal commis-
sioner at that time, and his two coadjutors, to appear before him at Buckingham
House, on a particular day, at two o'clock, to restore the seal, that it might be given
into the hands of Lord Loughborough. When introduced into the presence, the king
inquired of them the state in which they had left the business of the court. The
answer was, that if the hour at which his majesty had commanded their attendance
had been four o'clock instead of two, the last cause on that day's paper would have
been decided, the counsel fur the plaintiff being in the act of replying when they
were obliged to leave the court by the express direction of his majesty."

But these commissioners had no functions of state to perform ; they
were simply judges, and could devote their whole time to judicial

Mr. John Williams himself, in the debate of the 31st of May, 1825,
admitted the universality of delay in Chancery during, at least, a cen-
tury and a half before the date at which he was speaking.

"The evil, he said, was not of modern creation,- it existed a hundred and fifty years
ago, as Butler bore testimony in his Hudibras. For there the knight, after he had
tried every means to win the widow direct and indirect, and direct means were
always the best to be pursued in such cases, after he had assailed her with all the
artillery of sighs and glances, after he had attempted to draw her into an epistolary
correspondence, and had tried, but in vain, many other amatory proceedings, re-
ceived the advice of his squire to write her 'a love letter in Chancery, which, he

' Would bring her o'er to be his wife,

Or make her weary of her life.'

Yes, he would undertake to say, that the widow would have consented to take the
knight, the squire, 'the general camp, pioneers, and all,' rather than take in that bill
of Chancery, which was as great a nuisance a hundred and fifty years ago as it was
at present."

The commission recommended in 1826 a great variety of altera-
tions in the practice of the court ; but early in 1827, before there had
been time to take the necessary measures for effecting them, Lord
Eldon quitted the Court of Chancery. Lord Chancellor Lyndhurst,
in 1828, put forth a series of orders, which accomplished some of
the objects recommended by the commission ; and the great combina-
tion of faculties, which he brought to the administration of the great
Seal, induced an expectation that, if any human strength could ac-


complish it, Lord Lyndhurst would be able to overcome the arrears
of his court. But those arrears continuing to accumulate, he was
constrained, in 1829, to propose a measure for the constitution of an
additional judge. It was renewed in 1830, but strenuously combated
by the Whigs, who still maintained the notion that the work was not
too much for those already appointed to perform it : and the demise
of the crown having brought the session prematurely to a close, the
measure did not ripen into law in that chancellorship.

Lord Brougham next grasped the seals. He had been the most
formidable of Lord Eldon's assailants. But, observed Lord Lang-
dale, in the House of Lords, 13th June, 1836, when he himself (Lord
Brougham) became possessed of the great seals, at first he was so far
from supposing that the appointment of a new judge was necessary,
that he seems to have thought the court stronger than enough, and he
actually expressed his opinion that by the changes he was to bring
about, he should be able to dispense with the office of vice-chancellor.
This was in February, 1831. In July, 1833, further experience had
so far altered his lordship's views, that he laid on the table of the
House a bill, entitled, an " Act for appointing a chief judge in Chan-
cery, and for establishing a Court of Appeal in Chancery." Yet the
business had not become greater since the time of Lord Eldon : on
the contrary, the number of bills filed in the three preceding years,
1830, 1831, 1832, had been only 6510; whereas, during the three
years 1819, 1820, 1821, which, for the reasons before mentioned, have
been selected as the tests. of Lord Eldon's judicature, the number
of bills filed was 6654: and in the years 1821, 1822, 1823, the last
of which was the period when the war upon Lord Eldon was at its
hottest, the number was 6988. It was therefore under a pressure,
rather diminished than increased since Lord Eldon's time, that Lord
Brougham, the great iinpugner of Lord Eldon, found himself com-
pelled in 1833 and 1834 to call upon the legislature for additional
aid. Now, however the criticisms of lawyers may differ upon some
of the judicial merits of Lord Brougham, merits which probably will
be more highly estimated hereafter than political causes have suffered
them to be in his own generation urit enim fulgore suo none will
deny him to be unsurpassed in vigour and in speed. And yet with
all that speed and with all that vigour, he was unable to accomplish
the feat, which, in the time of Lord Eldon, he had conceived to be so
easy, and which he had rated Lord Eldon so roundly for failing to

The sanction of Parliament having been withheld from Lord
Brougham's measure, Lord Cottenham, the succeeding chancellor,
though justly held in high estimation as an equity judge, found
it as little practicable as any of his predecessors to keep down
the business of his court without additional assistance. And thus,
year after year, the evil continued and grew, until at length a
bill for the creation of two additional judges was introduced by
that party in politics who, during Lord Eldon's time and under an
equal or greater pressure of business in the court, had ever protested


against any such increase as being useless and profligate. The mea-
sure, after some defeats, was finally passed into law : and now, in
addition to the ancient court of the master of the rolls, there are three
vice-chancellors to assist the lord chancellor in doing what Lord
Eldon was perpetually censured for not having been able to execute

After such a proof of the huge disproportion of the Chancery busi-
ness to the faculties of any one of the powerful minds that have been
engaged in the reduction of it, and after the tardy concurrence of all
political parties as to the necessity, not of one, but of three vice-chan-
cellors, to help in performing the duties of the great seal, the charge
of general arrear will lie lightly on Lord Chancellor Eldon.

I. 4.

Beside the two positive heads of impeachment, as to particular
judgments delayed after hearing, and as to general arrears, great
pains were taken, also, in the way of negation, to represent Lord
Eldon as being, after all, but meanly gifted with the qualifications for
his high office. Keen partisans, in private circles, put out feelers in
order to the depreciation of the chancellor; and the "Edinburgh
Review" for October, 1823, came forth with the formidable article
already quoted, collecting and enlarging upon all the flaws which the
political ingenuity of that time could find or plausibly suggest in his
judicial character. They are summed up in the following passages,
which have been truly described to " contain every thing that can be
said in the way of disparagement:"

"It would be difficult, we conceive, to deny that he more frequently gives proof of
caution than of boldness, of subtlety than of vigour, in his reasons that in the deter-
mination of particular cases, he seems too often to exercise his ingenuity in raising
up doubts and difficulties, rather than in clearing them away and, above all, that he
confines himself far too rigidly to the decision of the special matters that come before
him, without aiming either at the establishment of general principles, and the improve-
ment of the science, he professes, or at the correction of those vices in the constitution or
administration of his court, of which he daily hears and sees too much to make it
conceivable that he should be ignorant. Whoever, in short, may have been driven
to toil in that laboratory called Mr. Vesey Junior's Reports, comprised as it is within,
the very moderate compass of eighteen solid octavos, with various accessory records
of a kindred character and spirit, must have looked, we think, in vain, for that great and
commanding talent and master mind, of which the possession of the highest station,
and that too for so great a length of time, creates, unavoidably, some expectation.

" We shall find, in the first place, a tortuous and mazy in volution, parenthesis suffo-
cated by parenthesis, a profuse, inelegant, and cumbrous verbiage, which afflicts the reader
with a sense of obscurity, and a most painful image of labour at once interminable and
unproductive. Meaning, in itself never redundant or excessive, struggling in vain through
a heavy and oppressive load of qualifications and limitations, and restrictions, creeps
into light, at length, in a shape and in dimensions little calculated to repay the weari-
someness of pursuit, from its first introduction, through its general attenuation and
diminution, to its final extinction.


" To lay down general rules, or to establish a system in any branch of law or equity,
is a matter of risk and difficulty, and cannot safely be undertaken but by persons of
great knowledge, and of a great reach of intellect, ' looking before and after.' Those
who are moderately gifted or stored, will do well not to adventure, just as it is better to


do nothing than to do mischief. The course for such persons is to avoid excursions,
and to move within the most confined and narrowest limits which the execution of the
immediate task before them can possibly allow. They must keep clear of general
reasonings, and circumscribe the grounds of their decision to the particular circum-
stances of each particular case upon which they are called upon to adjudicate. The
rights of the litigant parties, by such means, may possibly, for any thing we know to
the contrary, be properly disposed of ; but such a procedure is not, in any larger sense
of the word, and with a view to creating a scheme of jurisprudence, or providing a
store of knowledge for those who are to come after, a judgment or decision at all.

"In times past, things were otherwise: But 'there were giants in those days.' In
the Reports, our professional readers are aware, Lord Coke invites the attention of the
inquirer and (where he is concerned, we may safely add) learner, to adjudications
which took place beyond the mere decision of the point in issue between the parties, in
his peculiar and somewhat grotesque manner. 'Note, reader, that the following
points were settled and resolved.' Then follow, seriatim, quite as a matter of course,
conclusions and corollaries of law to the number of half a dozen, and oftentimes more,
as the case may be, distinctly and fearlessly laid down, and, moreover, without one
single parenthesis to pare them down and fritter them away to nothing. Where are
the ' Resolutions' of the Earl of Eldon 1 In what part of those ample magazines of
learning (bonding warehouses under double lock), to which allusion has before been
made, will the painful and fainting student find any of his adjudications which une-
quivocally enlarge, correct, or define the rules of equity in which he has been so long
engaged ? Why, his decisions are absolutely ike exclusion of all conclusion. And as the
facts to which they are strictly confined cannot exist again, either actually in specie,
or so nearly the same but that acuteness and subtlety may be able to find distinctions,
it follows, as of course, that an approximation is made towards the possession of that dis-
cretion of which power is naturally so much enamoured ; and which those, who are
prudently and wisely jealous of power, find it their interest as much as possible to

This is clever writing ; and, from the tone of it, and the sensation
it made in its day, (not perhaps unremembered even now,) the unpro-
fessional reader may be apt to infer that the article must have pro-
ceeded from some lawyer deeply cognizant of that particular depart-
ment of jurisprudence over which Lord Eldon presided. If that was
the case, by what odd chance did it happen that the lawyer, supposed
thus familiar with equity and its court, should have been absolutely
unacquainted with the very existence of the latest of those volumes
of Vesey Junior which are the daily hand-books of every equity prac-
titioner, and which latest volume, the nineteenth, bringing down the
Reports to the beginning of 1817, had been complete and bound up
in almost all the chambers of Lincoln's Inn some terms before that
article could have been in preparation ? If the reviewer had been
speaking of any other legal work, an error of this sort might not have
been material ; but in the case of these particular Reports, it is the
most awkward little circumstance in the world for his authority. Not
only did Vesey Junior's Reports constitute the very collection of
judgments which the reviewer had undertaken to anatomize, but they
were Reports, of which a new volume, nay, a new number, could not
have been out for a single week without the knowledge of every man
at all engaged in the business of a court of equity, especially when it
happened to contain cases that excited great professional interest,
such as the noted decisions, upon Mr. Blundell's will (Bootle v.
Blundell, 19 Ves. 494) ; upon the attempt of a solicitor to go over

* Edinb. Rev., Oct. 1823, pp. 249 251.


from his original client to the adversary (Cholmondeley v. Clinton,
19 Ves. 261 ;) upon Lord Mansfield's equitable doctrines, (Clarke v.
Parker, 19 Ves. 21 :) and upon various other important points from
1812 to 1817. It will probably, therefore, be thought no unreasonable
inference, that the article must have been written either by some
gentleman not belonging to the bar, or, which is the more generally

Online LibraryHorace TwissThe public and private life of Lord Chancellor Eldon, with selections from his correspondence (Volume 2) → online text (page 56 of 65)