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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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received opinion, by some eminent barrister not conversant with
equity business.* In either case, it is obvious that the criticisms, if
they are to have any weight, must derive it from something more
than the mere authority of the writer. Let us, therefore, examine the
several imputations themselves those oft-repeated topics of dispa-
ragement in the private circles of the discontented, for many a day of
party heat.

Very few words will suffice upon the style in which his judgments
are worded. It may at once be admitted that, as literary composi-
tions, they are faulty enough, inconveniently parenthetical, and
over-abundant in limitations and qualifications. But which of them
has been shaken by reversal or appeal, or by subsequent decisions in
pari materid, or by the dissent of Westminster Hall ? which of them,
with all the involution which may be charged upon its mere phraseo-
logy, has ever been passed over as unmeaning, by any court, or by
any counsel acquainted with the subject of it, or, even to this hour,
is ever cited but as an authority conclusive of the point it rules or
the doctrine it illustrates?

But he evinced " more of caution than of boldness, of subtlety
than of vigour." Vigour and boldness, though sometimes valuable
qualities in an advocate, may be very questionable virtues in a judge.
But, all show of vigour and boldness apart, had he that real and sub-
stantial power of intellect, by w T hich, no doubt, a judge's subtlety and
caution ought to be backed, and which alone can fix decision upon
a solid basis ? Against the reviewer, whether professional or not,
hear the words of a witness whose legal eminence gives to his testi-
mony the very highest value upon a question of judicial qualification,
and who, as a member of the Roman Catholic Church, would be
peculiarly indisposed to any blind admiration of Lord Eldon, hear
what estimate of Lord Eldon's power, (not vigour certainly not
boldness for these would not have been deemed titles to praise)
was entertained by the late Charles Butler :

"In profound, extensive and accurate knowledge of the principles of his court, and
the rules of practice which regulate its proceedings, in complete recollection and
just appreciation of former decisions, in discerning the inferences to be justly drawn
from them, in the power of instantaneously applying this immense theoretical and
practical knowledge to the business immediately before the court, in perceiving,
almost with intuitive readiness, on the first opening of a case, its real state, and the
ultimate conclusion of equity upon it, yet investigating it with the most conscientious,
most minute, and most edifying industry, in all, or in any of these requisites for a
due discharge of his high office, Lord Eldon, if he has been equaled, has assuredly
never been surpassed by any of his predecessors."-}-

* Conjecture has ventured upon the name of no less a person than the present Mr.
Justice Williams,
f Butler's Reminiscences, 1822, p. 141.


How highly Lord Eldon valued such a testimonial from such a man
will appear from the letter in which he acknowledges it:

(Lord Eldon to Charles Butler, Esq.)

"19th April, 1822.
"Dear Sir,

"Seeing your ' Reminiscences' offered to the public, I have placed them in my
library. I wish I could satisfy myself that Lord Eldon was entitled to all the appro-
bation which your partiality has bestowed upon him. I have ventured to think that
my life exhibits a remarkable proof of what may be done, in a free country, by mode-
rate talents and never-ceasing industry, but I have never presumed to think that I
had the merit you have been pleased to think it good to ascribe to me. I have felt
more consolation than I can express, in reading, in a part of your work, what a con-
siderable person stated in answer to the imputation of being dilatory.* That has
been often, and I admit most fairly, imputed to me; to all who accuse me of it, I wish
to give, as my answer, the passage I allude to. I must soon quit this scene: whether
any memory of me will survive me, I know not, but I hope I may have descendants
professing the law : and if I have, (as they may study the works of Charles Butler,
if they mean to undersland their profession,) those descendants at least will be taught
to entertain, upon very considerable authority, a favourable opinion of the character
of their ancestor. Yours, dear sir,


The suggestion about Lord Eldon's being one of those who stand
in contrast with " persons of great knowledge and of a great reach of
intellect," by being but " moderately gifted or stored," may be dis-
missed without any other observation than a candid acknowledgment
that its author evinces no mean share of the " boldness" which he
describes Lord Eldon as lacking.

" But he seems too often," continues the Edinburgh article, " to
exercise his ingenuity in raising up doubts and difficulties, rather than
in clearing them away." This has been a common, but is not a very
intelligible, charge against him. Any doubt or difficulty of which
the clearance was necessary in the particular case, must have been
cleared by the judgment which decided that case ; and any expression
of opinion, assuming to determine any doubt or difficulty which the
case may have suggested, but of which the clearance was not neces-
sary to the judgment in that case, would have been a mere obiter
dictum, which modern practice, herein wholly differing from that of
the times for which Lord Coke is vouched by the reviewer, would
have held to be of no authority. But then, why, it may be asked,
should the judge have, suggested such questions at all? The answer
will at once occur to lawyers: he did not circumscribe his decision
for the narrow, timid purpose, intimated in the Review, of making it
" the exclusion of all conclusion;" but he was expressly careful, in
order to the protection of subsequent suitors, that it should exclude
all conclusions to which it did not legitimately lead that its scope and

* Mr. Butler says, "the only fault imputed to D'Aguesseau was dilatoriness of
decision ; we should hear his own apology. The general feeling of the public on this
head was once respectfully communicated to him by his son. 'My child,' said the
chancellor, ' when you shall have read what I have read, seen what I have seen,
and heard what I have heard, you will feel, that if, on any subject, you know much,
there may he also much that you do not know ; and that something even of what you
know may not, at the moment, be in your recollection: yon will sensible
of the mischievous and often ruinous consequences of even a small error in a deci-
sion; and conscience, I trust, will then make you as doubtful, as timid, and conse-
quently as dilatory, as I am accused of being.' " But. Rem., p. 264.


limits should be precisely apprehended : that lawyers, thereafter ex-
ploring in the same direction, should be enabled to see how far along
the road their footing would be sound, and at what point it might
probably become insecure.

The whole of that long count of the foregoing indictment, which
charges Lord Eldon with shrinking from the hazard of general reason-
ings, resolutions and rules, is substantially represented by the allega-
tion near the beginning of the extract, that "above all, he confines
himself far too rigidly to the decision of the special matters that come
before him, without aiming at the establishment of general principles,
and the improvement of the science he professes." Now, undoubt-
edly, in the advanced stage which, when Lord Eldon came to the
seals, "the science" of the law had reached, the chancellor did not
for he had not to do what belonged only to the infancy of that
science. A principle wholly new can only be elicited when some
new emergency gives rise to a new class of cases : an occurrence
which every succeeding century renders more and more unfrequent.
The very extent of what had been defined by Lord Eldon's prede-
cessors left the less in his power to define. Of jurisprudence, as of
most other sciences, the great or general principles, in their nature,
can be but few; the rest must be made up of minor considerations,
whether distinctions or analogies ; and the few general or great prin-
ciples are usually, in the code of every country, laid down by its
earlier lawgivers.

But is it true, that, within that field which was left to him, Lord
Eldon shrank from the task of evolving and establishing general prin-
ciples ? That, certainly, has not been the conclusion of the most com-
petent judges.

Mr. Swanston, than whom the bar acknowledges no lawyer com-
bining more largely the philosophy and scholarship of his profession
with the knowledge of its details, expresses, in the preface to his
reports of Lord Eldon's judgments in 1818 and 1819, a wish to " in-
dulge the belief that he had materially contributed to preserve and
render accessible a series of decisions, in which, by an union of
juridical talent and learning never surpassed, the doctrines of equitable
jurisprudence have assumed the character of a systematic science."

In 1822, Mr. Jarman published his work upon that extensive sub-
ject which occupies so large a proportion of the whole time and atten-
tion of our courts of equity, the Law of Devises : a work, which, though
professing, as to its first volume at least, to be an edition of Powell's
earlier essay, is in truth, as to both volumes, a masterly outline of this
vast department of jurisprudence, combining the profoundest learning
with the most comprehensive views and the most perspicuous style.
This eminent lawyer, having confined his practice to his chambers,
had little motive for propitiating the bench : yet he thus addresses him-
self to Lord Eldon :

" In tracing the learning of devises through the later reports, how often do we find
your lordship reviewing a long line of authorities, noting their distinctions, correct-
ing Iheir errors of fact and law, and finally extracting, or supplying, a principle, on


whose broad and solid basis a multiplicity of questions, which must otherwise have called
for repeated adjudication, may satisfactorily rest"

What Mr. Jarman thus observes respecting the principles estab-
lished in the law of real property, is equally true of many other import-
ant departments, in which grounds, barely indicated by former judges,
were first laid clear and made firm by Lord Eldon. The true test will
be, have his judgments been so reasoned that counsel called on to
advise, and courts called on to adjudicate, in kindred matters, have
been able to find their clue in his expositions, and to frame opinions
and settle litigations by his light? It is not within the 'scope of this
work to give technical details; the unprofessional reader takes no
interest in them : and, for lawyers, it will be sufficient to insert a refer-
ence or two, not purporting to exhaust this subject, but only to exem-
plify it. Thus we find, in the case of Evans v. Bicknell, 6 Ves. 174,
the principles which explain the rights of successive mortgagees, as
affected by the delivery or non-delivery of title deeds : in the cases
of Aldridge v. Cooper, 8 Ves. 382, and of Booth v. Blundell, 19 Ves.
494, and 1 Mer. 193, the principles which determine the application
and marshaling of assets, and the effect of charges upon the land in
exonerating the personal estate of the testator: in the case of Mort-
lock v. Buller, the principles which regulate the court in decreeing
specific performance of contracts: in the case of Exparte Pye, 18
Ves. 140. 154, the principle which decides in what cases the bene-
factor of an infant shall be deemed to have placed himself in loco pa-
rentis, to the merit of which principle, so defined by Lord Eldon,
we find Lord Cottenham, himself a judge of the highest estimation,
bearing this strong testimony ; it is " a definition which I readily adopt,
not only because it proceeds from his high authority, but because it
seems to me to embrace all that is necessary to work out and carry into
effect the object and meaning of the rule."

When he came to the great seal, there was, upon the subject of lite-
rary property, a question which was not settled by any positive deci-
sion, but which may be said to have been of great constitutional im-
portance. It related to the principle on which the author of a work
should be entitled to an injunction restraining the piracy of it. A
notion had long been prevalent, that this right of an author was a gene-
ral and unqualified one, available to him irrespectively of any ques-
tion as to the character of his work. Thus, injunctions had been
granted against the piracy of the " Dunciad," notwithstanding its libel-
lous passages: and even against the piracy of Mrs. Bellamy's memoirs,
a work of notorious indecency. The law upon the subject had never
been mooted, until, in an action brought by Dr. Priestley, the great
apostle of Unitarianism, against the hundred, for the destruction of
his manuscripts in the Birmingham riots, Lord Justice Eyre told the
jury that if the evidence had shown the contents of the destroyed
works to be in the nature of libels upon the government, he should
have considered such proof as receivable against Dr. Priestley's claim.
In this state of the law, an application was made by Dr. Walcot, the
noted Peter Pindar, for an injunction against the piracy of some of


his works. Lord Eldon, grounding himself upon the common law as
stated by Chief Justice Eyre, refused the injunction, and laid down
the principle, by which, from that time, this important subject has
been regulated. His words are:

It is not the business of this court, even upon submission in the answer, to decree
either an injunction or an account of the profits of works of such a nature that the
author can maintain no action at law for the invasion of that which he calls his pro-
perty, but which the policy of the law will not permit him to consider his property :
Walcot v. Walker, 7 Ves. 1.

In the later case, of Mr. Southey's application for an injunction to
restrain the sale of " Wat Tyler," a seditious work produced by him
in early youth, which a bookseller, having casually obtained a copy
of it, was now unfairly publishing, Lord Eldon said, in giving judg-

It is very true that, in some cases, it may operate so as to multiply copies of mis-
chievous publications by the refusal of the court to interfere by restraining them;
but to this my answer is, that sitting here as a judge, upon a mere question of pro-
perty, I have nothing to do except with the civil interests of the parties ; and if the
publication be mischievous, it is not my business to interfere with. it. Southey v.
Sherwood, 2 Meriv. 435 : and see Lawrence v. Smith, 1 Jacob, 471.

By these cases the law is settled, that the Court of Chancery will
give no protection to the authorship of a libellous, irreligious, or im-
moral work; and that it disclaims all preventive jurisdiction in the
nature of ownership.

How far the principle thus established by Lord Eldon was a sound
one, may be fairly a matter of argument ; and a very able discussion
of it will be found in the " Edinburgh Review" of May, 1823, where
he is roundly rated for having, " upon a new principle," (of which he
is there described as " the present and the sole authority,") " been
the first to deny to authors a temporary refuge against common rob-
bers." But the question here is not whether the chancellor or the
Edinburgh reviewer took the sounder view of the policy of the
law: the present inquiry is, whether Lord Eldon, after having been
assailed, through four-and-twenty pages of the " Review" for May,
1823, as the culpably bold parent of new principles, is justly con-
demned in the " Review" for the succeeding October, of shrinking,
in conscious weakness, from the origination or establishment of any
general principle at all.

Another of the principles which owe their settlement to Lord Eldon
is, that of the demarcation between the jurisdictions of law and
equity. Lord Mansfield, and at one time Mr. Justice Buller, also, had
been desirous, as the reader has already seen,* to import the doctrines
of equity into the administration of law. Lord Eldon, in his long
presidency over the Court of Chancery, while he fully upheld the
maxim that instruments and agreements must receive in equity pre-
cisely the same construction which would be given to them at law,
effectually established the great doctrine that the equitable circum-
stances by which it might be fitting to regulate the performance of the
contracts so construed, were matter for the jurisdiction of courts of

* Vol. I. pp. 344348.


equity alone. Wykham v. Wykham, 18 Ves. 415 ; Clarke v. Parker,
19 Ves. 21, 22, &c. &c.

The strong doctrine laid down by him in the Wellesley case, with
respect to the court's right of rescuing children from the custody of
an immoral parent, will occur to the general reader. The mercantile
world will have present to their minds the clear and practical rules
which he established on the subject of securities deposited with bank-
ers becoming bankrupts, and the large elucidations which he gave to
the law of bankruptcy in so many other branches of it. And on the
whole of this branch of the reviewer's imputation, Lord Eldon will
be found fully entitled to the credit which he claims in Exp. Yallop,
15 Ves. 70, where, speaking of his own judgment, as given in
Curtis v. Perry, upon the Ships' Registry Acts, he says,

" As that was a most important case, and the first of the class, I took a more enlarged
view of it than was necessary for the decision,- and with a view to the application of the
principle of it to future cases, I entered into the circumstances."

It is for labours like these, and not for such flights as the reviewer
desiderates, that a judge in our days may well hope to be admired
and revered. The age is gone by for " adventuring" upon the dis-
covery of new regions in the law : modern chancellors must be con-
tent to establish their names by adjusting the limits and improving the
security of the old. The sphere of their utility is thus changed, but
it is neither destroyed nor lowered. And, indeed, of all the sciences,
one should think that the law, the science of precedents and records,
was the least appropriate to the " excursions" of an inventive ambi-

But he is further impeached of not aiming " 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." Now as to this, it must, in the first place, be
remembered, that in the time of Lord Eldon it was not practicable
to make changes quite so lightly as they are made in this second
quarter of the nineteenth century. A judge, who, in 1800, or 1810,
or even 1820, should have set about re-constructing his court, would
have found that instead of securing the approbation of the profession
and of the public, he was incurring pretty general displeasure and
suspicion, as a wrong-headed speculative person. He would have
hazarded a great loss of confidence among the practitioners, among
the suitors, and among cautious people in general, in so much, indeed,
as to have materially impaired his own usefulness. A dozen or even
twenty years after Lord Eldon's first accession to the great seal, it
was still deemed some reason for letting things alone, that they were
In the same track in which they had gone on from the Revolution. To
make Lord Eldon responsible for the defects of the system, because
he did not attempt, in days when all changes w r ere formidable, a gene-
ral re-construction of the courts of equity, is but to blame him for
an omission which he shares not only with his minor predecessors, but
with Bacon, Somers, Hardwicke and Thurlow : and from which even
the late Whig cabinet, with all the undoubted capacity, learning,


and diligence of Lord Cottenham, their chancellor, did not find time
to relieve themselves, although a modern act of Parliament, the 3
& 4 Viet. c. 94, had invested the judges of the Court of Chancery
with novel and extensive powers, to make reforms not previously fea-
sible except by specific intervention of the legislature. But although
Lord Eldon was reluctant to initiate a course of reform, and lacked,
indeed, the leisure to effect it at all extensively, yet when, in 1824,
he was placed at the head of a commission constituted to inquire
whether any alterations could be made that might abridge expense
and delay, Lord Eldon, though certainly not a very willing party to
the appointment of an inquisition which had originated in feelings
adverse to himself, yet gave the most cordial assistance to the work,
and cheerfully partook the laborious task of settling the propositions,
no fewer than 187, which the commissioners finally concurred in

The House of Commons, on the 18th of May, 1826, had some
account of the proceedings of this commission from one of its mem-
bers, Dr. Lushington, whose testimony, valuable as it is from his
high character and great ability, receives yet a further weight on this
particular subject from the fact that he was connected in politics with
the party adverse to Lord Eldon.

" And, first, with regard to the conduct of the lord chancellor, he did but discharge
a debt of justice to that individual, when he said, that, from the beginning to the end
of the investigation, he had given the most material assistance to the commissioners.
He did not deliver his opinions to them as dogmas, but allowed those who doubted of
their correctness to investigate them thoroughly, affording them every explana-
tion which they required, and that, too, in a manner which left on his mind a most
favourable impression with regard to the learning, intelligence, and integrity of that
learned lord. So far from ever seeking to check inquiry, he had done every thing to
promote and forward it."*

When the sittings of the commission were about to begin, the
chancellor requested Dr. Lushington to have them fixed at times
when he, Lord Eldon, could manage to attend. Dr. Lushington
answered that there would be no occasion for the chancellor to take
the trouble of attending for the mere purpose of examining the wit-
nesses : but that after that part of the duty should have been com-
pleted, the commission would be most anxious to profit by the chan-
cellor's judgment and experience. " Oh, I see what you mean,"
replied Lord Eldon, laughing, "you intend to put me into the

It was only when suggestions were made for the abolition of emolu-
ments in which the holders had interests entitling them to compensa-
tion, that he interposed the smallest objection to any useful reform
proposed by the commissioners. For, with respect to the Suitors'-
Fund, which has by many been thought a fit source for the payment
of compensations, one of the commissioners, the late Mr. Merivale,
says in his letter to a Chancery reformer, pp. 30, 31,

"Lord Eldon had strong, and, I believe, conscientious scruples scruples in which

* Pad. Deb., 18th May, 1826, p. 1256. See also Parl. Deb., 7th June, 1825, pp.
1085 and 1093.


I am sure that many zealous reformers participate about applying any considerable
part of the interest of the Suitors' Fund to such purposes ; and considering the tem-
per of the then opposition, and the favourite opposition doctrine that all the evils of
Chancery were personally ascribable to the chancellor, what possible expectation
could be held out that the country would defray the expense 1 ! Take, for example,
the suggestions of the present master of the rolls, already alluded to, for the abolition
of useless forms of process who can suppose that we should willingly have stopped
short in carrying out the principle, which, by partially adopting, we recognized, but
for these fiscal considerations, and the dread of exciting an opposition hurricane 1
Three, at the least, of Mr. Field's heads of ' Needless Proceedings'* involve a diffi-
culty of this nature viz., 'Orders of course' 'Messengers' oath to answer'
'Process of contempt' to which I might add 'Subpoenas,' but that Mr. Courtenay,
then master of the subpoena officef, had handsomely declared at the outset against
his own emoluments from the office being suffered to stand in the way of its entire

The bills for Chancery reform introduced into Parliament by Sir

Online LibraryHorace TwissThe public and private life of Lord Chancellor Eldon, with selections from his correspondence (Volume 2) → online text (page 57 of 65)