Horace Twiss.

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

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John Copley, in 1826, when he was attorney-general, and in 1827,
when he was master of the rolls, were the fruits of the Chancery com-
mission, and had been framed with the concurrence and under the
direction of Lord Eldon, then lord chancellor. They failed by no
fault of Lord Eldon's, but, in each case, by the circumstances of the
parliamentary session.

It is not denied that, in Lord Eldon's time, as in the times of all
preceding chancellors, there was much left undone which common
consent has indicated as indispensable for the relief of the suitor
from the delays and expenses incident to the prosecution or de-
fence of any right in a court of equity. Even now, the recent con-
stitution of two new judges, though it removes one cause of delay,
and that one perhaps the greatest, leaves many other causes of delay,
and almost the whole evil of expense, unredressed. This is not the
proper place for a detailed inquiry into the reforms which would best
simplify and cheapen the proceedings in equity suits: it is here suffi-
cient to observe that the remedy seems to lie in a better arrangement
of the business to be done before the masters, and in a transfer of
divers interlocutory and preliminary matters to their jurisdiction,
which now require the process of motion or petition before a vice-
chancellor, with all the costs and consumption of time incident to
briefs, attendances and court hearings. But to assimilate or approxi-
mate the proceedings of a Chancery suit to those of an action at law
(the notion of half the people who talk on this subject) is a thing
which not only must have been beyond the power of a judge so much
occupied as Lord Eldon, but will always, under whatever judges or
modes of practice, continue to be intrinsically and physically impos-
sible. The trial of an action, in a court of common law, is usually
no more than the ascertainment by a jury of a single fact, between
one or more plaintiffs having the same interest, and one or more de-
fendants having the same interest. But a suit in equity is a proceed-
ing in which are usually comprehended many and distinct parties,
having many and distinct interests, some direct and others incidental,
some immediate and others remote. Such a suit, make the practice

* See Mr. Field's pamphlet, p. 67, &c.
f The present Earl of Devon.


of the court as summary as you can, must always be a proceeding of
some length.

Take, for example, the common case of a bill filed against execu-
tors to have the trusts of a will carried into effect and the estate of
the testator administered under it. In the first place, it is obvious,
upon the commonest principles of justice, that before any court can
proceed so to dispose of property, all persons who claim any interest
in it ought to be brought before that court, either personally or by
some sufficient representative, so as to have an opportunity of stating
and enforcing such respective claims. Let us go back to Lord Eldon's
time, and take some precise period of it; for example, the year 1820.
Suppose the preparations for the suit to have begun after the long
vacation, that is, in November, the beginning of the legal year. By
December the bill is on the file. Two months, at the least, where
the defendants are at all numerous or live remote, will have been
necessary to get in the answers, which will have come in about the
middle of January, and may probably lead to some necessary amend-
ments in the bill. To these, a further answer will be requisite : and
the time unavoidably consumed in such pleadings, even where forms
are most favourable, and all parties do their utmost for dispatch, will
have brought you to March or perhaps April. The facts in dispute
are now to be proved by the examination of witnesses; and, even
supposing all the witnesses for all the various plaintiffs and defend-
ants, to be willing and within the court's jurisdiction, you will hardly
be in a condition to set down your cause for hearing so early as
Trinity Term. However, you are ready by the term following ; in
which term, Michaelmas, 1821, you set it down before the vice-
chancellor. But as a great many other sets of parties have been
doing the same thing in the same year, some arrear must be allowed
for : call it an arrear of only one term : and then your first hearing
will take place about Hilary Term, 1822.

The court now has, or, on further directions, will have, to decide
upon and declare the intention of the testator, not unfrequently ex-
pressed in language creating the greatest doubt and difficulty. The
original hearing is followed by a reference of facts and accounts to
the master. His judicial functions may, perhaps, be capable of some
improvements in their constitution, which will aid the dispatch of
business ; but in this stage of a cause, the very nature of human affairs
will always delay you. Witnesses, or creditors, or persons otherwise
interested, are abroad, perhaps in the East or West Indies; you must
have time to send out advertisements and obtain returns, and, before
the whole of these returns come back, another year has necessarily
elapsed. Meanwhile, however, matters shall have been going on
actively at home; so that by Hilary Term, 1823, all may be ripe for
the master's consideration: but how much has he to consider? The
nature and amount of the testator's property are to be ascertained the
accounts are to be taken of the receipt and expenditure of the execu-
tors, to every item of which all persons interested must have an oppor-
tunity of stating their objections; and the debts of the testator are



each to be brought forward, and each substantiated by vouchers. Then
comes the inquiry into the state of the legacies whether any of the
persons to whom these are given have died, and if so, whether they
have left any and what personal representatives. These, and many
similar inquiries, which vary according to the particular directions of
each particular will, must precede the report of the master. The
parties before the master, however, having been very diligent, and
his report having been made within a few weeks more, you again
set down your cause before the vice-chancellor for further directions
in Easter Term. The ordinary arrear will prevent its being disposed
of till the term succeeding. Then, however, the final decree is made ;
and your solicitor is guilty of no laches, if he gets the matter wound
up in the course of the vacation.

Now the reader will perceive that here are three years consumed
without the waste of a single term, in a case, too, where all parties
are not only fair and forward, but friendly. But how if they be hostile ?
If they except to answers and masters' reports? If they hold out all
tenable points, and appeal at last ? How if, without fault on either
side, there exist a necessity for trying an issue of fact at the assizes,
or for referring a case to the judges of the King's Bench or Common
Pleas on some incidental point of common law? or, if new difficulties
are interposed by the death of parties, or the occurrence of any other
of the various events which cause new devolutions of interest in the
subject-matter of the suit? Again: if the cause be one of that large
class which relates to the administration of an estate during the mi-
nority of children, ought it not to occur to any man who pretends to
argue on such a subject at all, that until the youngest of the infants
come of age, the suit must of necessity be kept alive, whether for ten,
fifteen, or twenty years, and that not a single week can be deducted
from that delay by any imaginable alteration in practical arrangement
or judicial dispatch?

Thus much upon the difficulty of effecting reforms in the business
of Chancery, strictly so called. But there exist other branches of the
lord chancellor's judicial business. The principal of them are the
judicatures in the House of Lords and in bankruptcy ; and both of
these were actually indebted to Lord Eldon for improvements of the
most important character. On the subject of judicature exercised in
the House of Lords, the account of his services may be fitly borrowed
from the following passage of Mr. Brougham's speech, in the debate
of 5th June, 1823, upon one of Mr. Williams's motions :

"The noble lord decided on the cases which came before him with a degree of
skill and penetration and in appeal causes from Scotland and Ireland with a degree
of wisdom which was most extraordinary, considering that to the law of the latter
countries, and especially Scotland, the noble and learned lord was in some sort a
foreigner. Their /aw, hi/iverer. he had reformed ; intelerale abuses he had corrected;* and
the Scotch lawyers, however averse they at first were to the suggested reformations,
soon perceived their value, acknowledged their expediency, and ultimately adopted

* See Lord Eldon's speech in moving the second reading of the Scotch Jury Bill,
23d February, 1815.
f 9 Parl. Deb., p. 788.


"There was no circumstance," says Lord Eldon in the Anecdote
Book, " that gave me greater satisfaction upon my quitting office than
the strong testimonies I received in letters from the President of the
Court of Session and the Lord Justice Clerk of Scotland, testifying the
sense entertained in Scotland of my administration in the House of
Lords of the law of Scotland in the hearing of Scotch appeals, and the
application made to me by the lord president, at the instance of those
whom he mentioned in one of his letters, that I would continue to
attend the House of Lords to assist in the decision of Scotch causes.
Very early in the time of my attendance in the House of Lords, as a
counsel, I expressed to the then lord chancellor, Lord Thurlow, my
anxiety not to appear as counsel in that House in Scotch causes. This
he discouraged so strongly, that I was obliged to abandon my purpose.
To make myself master of such points in Scotch law, as it was neces-
sary for me to understand in order to be able to do my duty at the
bar, was what required so much time and labour, and withdrew me
so much from practice in the courts below, that I was anxiously desi-
rous to avoid being concerned in Scotch causes. When I became
chancellor, the duty of deciding such causes was most extremely pain-
ful, and required infinite labour. I was, however, for some time,
assisted by two ex-chancellors, Lord Thurlow and Loughborough.
I have the comfort of having reason to believe that my administration
in this part of my duty was satisfactory ; and whilst the number of
appeals greatly increased, and by some were alluded to as proofs of
delay in that administration, by others, and those who knew best
what was the fact, that increase of appeals, I was assured, was occa-
sioned by the confidence which the lieges of Scotland had in the
judgment to which they appealed. Some thought, that in decision in
Scotch causes I was too much influenced by the principles of English
law. There was no one danger against which I guarded myself so
anxiously as the danger that I might be so influenced. Whether all
the pains I took to protect myself and the Scotch suitors against this
danger were thoroughly effectual, I cannot determine ; I believe they
were. But he must know little of the operations of the human mind,
who can be positively certain that he can withdraw, in the administra-
tion of Scotch judicature, wholly and absolutely from that mind, the
influence which may have been created in it by the daily and hourly
contemplation of the rules and principles of English law, through a
long course of years. One other objection to my administration was,
that I too frequently remitted causes in which appeals from the judg-
ment of the Court of Session were brought to the Lords to the Court
of Session again, for further consideration, before the House of Lords
proceeded to judgment. But let it be considered that an English
lawyer, placed at the head of a Court of Appeal from the judgment of
Scotch judges, is placed in a very awful and responsible situation,
when he feels himself disposed to reverse a judgment, an unanimous
judgment, of Scotch judges in a Scotch cause. If he cannot consci-
entiously confirm the judgment, he cannot be much blamed, if he
states his difficulties, and desires the Scotch judges to state how they


dispose of such difficulties. Lord Loughborough, who, as a Scotch-
man, had studied Scotch law, sometimes, but not often, remitted causes.
Lord Thurlow was the person who intimated to me the necessity of
making such remits, and he represented that necessity as arising from
what he stated, that, in case he had difficulties, he betook himself to
correspondence with the Scotch judges, but never could so obtain a
solution of his doubts. To this mode of proceeding I had a strong
objection, and my memory authorises me to state, that I very early
represented that I very earnestly and strongly, as well as early, rep-
resented that objection, to a judge of the Court of Session, which
was, that counsel for parties ought to have, and had not, an opportu-
nity of being heard as to what had passed between corresponding
judges, if what had so passed was in any degree to influence the
judgment that was to be given in the House of Lords. I think it will
be found, that in process of time, as I grew more confident of my own
judgment, those remits were much seldomer made, because my expe-
rience had made them less necessary for my own instruction because
they were attended with expense and because, to my surprise, that
obtained in the Court of Session in Scotland, which seemed to me to
be contrary to the practice of all other courts ; viz., that the Court of
Session, when it was called upon by the Court of Appeal, for the in-
struction of that Court of Appeal, to reconsider the cause, made the
party, against whom they gave the reconsidered judgment, pay all the
costs of that proceeding, although that party had done his utmost at the
bar of the House of Lords to prevent a remit."

With respect to the administration in bankruptcy, Lord Eldon, in
the same month in which he first took his seat in the Court of
Chancery, seized an occasion, the earliest afforded to him by the
course of business, to reprobate and put down the frauds then exten-
sively practised under cover of the bankrupt laws. He spoke with a
warmth, not usual to him except where he had some gross iniquity to
deal with. He said,

" There is no mercy to the estate. Nothing is less thought of than the object of the
commission. As they are frequently conducted in the country, they are little more
than stock in trade for the commissioners, the assignees and the solicitor. Instead
of solicitors attending to their duty as ministers of the court, for they are so, commis-
sions of bankruptcy are treated as matter of traffic ; A. taking out the commission, B.
and C. to be his commissioners. They are considered as stock in trade; and calcula-
tions are made how many commissions can be^rought into the partnership. Unless
the court holds a strong hand over bankruptcy, particularly as administered in the
country, it is itself accessary to as great a nuisance as any known in the land, and
known to pass under the forms of its law. The punishment of the solicitor, by strik-
ing him off the roll, is rendered merely nominal, by the common practice of others
lending their names. It is too hastily taken for granted, that the solicitor is entitled
to his bill. In one Court of Westminster Hall it was held, that if a solicitor under-
takes to bring an action, or do any business, and part of the undertaking is that he
shall faithfully and honestly bring that business to a conclusion, if he fails in that
he cannot bring an action for any thing.

" His lordship added, that he was determined to make the officers of this court rc-
ponsible to the justice of the country for their dealings in this court; and declared,
with reference to the practice of lending a name to a person forbid by the court to
take out a commission, that he would not hesitate to strike a solicitor off the roll who
dares to lend his name to a person under such an interdict, and for that reason
alone : but he would go further, and, whenever a case of this nature should be brought
VOL. ii. 26


forward, would direct the attorney-general to prosecute for a conspiracy; for no worse
conspiracy can be, than that, the object of which is to make what the legislature in-
tended as a lenient process against the bankrupt, a mode of defrauding the creditors
and the bankrupt.*

The paper of petitions in bankruptcy, according to the report of
Mr. Vesey, afforded ample foundation for Lord Eldon's strictures.
In one of the cases, the whole value of the effects was but 80/. or
90/., and the creditors who sued out the commission swore, first, that
their debt was for goods sold, and afterwards, that it was for money
lent. In another case, the circumstances were that the commission
was a country one ; that two of the assignees (one of whom was the
solicitor taking it out) were partners in a country bank, in which one
of the commissioners was also a partner, and into which the moneys
received under the bankruptcy were paid, the third assignee being a
customer of that bank : so that there was a union of the characters of
banker, commissioner, solicitor and assignee. For the prevention of
these and other abuses, Lord Eldon forthwith laid down various rules,
which were speedily attended with a salutary effect. It must be
added, that the general Act of 6 Geo. 4, c. 16, which consolidated
and arranged the whole series of prior enactments on bankruptcy,
was settled by Lord Eldon, in concert with Mr. Eden, afterwards
Lord Henley, who framed the original draft of that important measure.
The fact is, that his general indisposition to what are called reforms,
an indisposition which throughout his public life brought upon him,
with much of unmerited obloquy, some reasonable censures also, was
an objection chiefly against experimental changes in established prin-
ciples ; and he did not suffer it at all to withhold him from bruising
the heads of extortion, fraud or malpractice, wherever they had
crawled in.

The following letter to Mr., afterwards Sir Edward Sugden, now
lord chancellor of Ireland, explains the feeling of Lord Eldon upon
some important subjects of legal reform:

" My dear Sir,

"The early rising of the court has enabled me to read your letter to J. H., Esq.;f
for presenting me with it be pleased to accept my best thanks.

" I have had very sincere satisfaction in reading it, it being my opinion that there
is a most unreasonable avidity for alterations as to real property, industriously pro-
pagated, which would infallibly, if gratified, do great mischief. My opinion has long
been, (perhaps a foolish one, but I cling to it,) that what should be attempted should
go no further than (by legislative provisions, introduced into Parliament from time
to time) the forms under which our present system as to real property is carried on
should be rendered more simple and less expensive ; that the system itself should not
be changed, or, at least, should be touched with a very delicate hand. I think that
even regulations, with this view, as to the forms, should not be attempted all at once:
I think such an attempt would fail. I brought in, when chief justice of Common
Pleas, what is called Lord Eldon's act, not because I thought that did enough and I
lately brought in a bill to improve that, not because I thought that enough but, be-
cause a little that is reasonable may be effectually attempted, when, if you propose all
that is reasonable, nothing would be done. I was the more led so to think, because I
well remembered that Mr. Kenyon and the lawyers of his day (and when had we
better?) were preparing a bill for the improvement of the law, and, because all could
not agree in every thing proposed, nothing was done.

* 6 Ves. Rep. pp. 1, 2. f Mr. Humphries.


" 1 certainly did not foresee that to this period of my life I should be so overwhelmed
with the execution of duties, that I could not find time to pursue, in proposing alterations
of forms, what I meditated to propose.

" Great alterations in our system of law, I confess, I do not think are likely to im-
prove either our law or our lawyers. The history and progress of our legal system,
will be unknown by our lawyers, and they will, therefore, be ignorant. King William
told Maynard that he was almost the only lawyer left. Maynard told him, that if he,
said William, had not come, there would have been no law left. Indulge the appetite
for alteration in the law, which we hear so much of now-a-days, and in a reign or two
more we shall not have a lawyer a well-grounded lawyer left.

"Yours, my dear sir,

"Nov. 1,1325."

Engrossed, as Lord Eldon was, by business of every description,
it seems rather to be matter of surprise that he should have been able
to originate any thing of improvement and reform, than that he did
not accomplish more. Nor was there any disposition, on the part of
those who complained of the existing state and practice of the courts,
to afford to him, by any provision of additional assistance on the
bench, the intermission necessary for remodeling them. Two aids,
indeed, he did obtain, as the flood of business continued to rise and
rush in ; but both of these one of which was the erection of the first
vice-chancellor's court, and the other the arrangement for forwarding
the appeals in the House of Lords, by a deputy speaker were grudged
and resisted. The creation of a vice-chancellor was especially dis-
pleasing to Lord Eldon's opponents: they found it quite unreasonable
that when the leak was gaining upon the ship, more hands should be
required to work her. The very persons who had been loudest in
their complaints of the magnitude and weight of the arrears, now
treated them as a matter so light, that, with a little extra help from
the master of the rolls, the chancellor would, or should, be perfectly
competent to clear them. What would those censors have said, if,
with a view to the redress of the evil, the chancellor had withdrawn
his mornings from the motions and appeals, and devoted his time,
which was all too little for the suits before him, to the invention of
new constitutions for the practice of his court? How many days,
weeks, months, must such a study have subtracted from the time
justly due to the suitors! How great would have been the conse-
quent increase of the already burdensome arrear! and how inadequate
an excuse for the neglect of urgent business would the concoction of
speculative reforms have been deemed to afford !

Among the many devices, however, which were got up to work
discontent in the public mind on the subject of Lord Eldon's judicial
administration, and disseminated in the "Edinburgh Review" for
October, 1823, there was none more unjustifiable than the insinuation
of a danger to liberty and property from some encroachment of dis-
cretionary, that is, arbitrary, power by the lord chancellor. The
topic is indicated in the concluding sentence of the extract already
given ; and still more distinctly pointed at in the following extract
from the same article, p. 247 :

"Our readers are perfectly aware that it is to be collected from different parts of
the work of the learned commentator (Blackstone,) that the system (of the chancery)


ostensibly proceeds upon as scrupulous and rigorous an adherence to precedent and au-
thority as can be found in ike courts of laws themselves; not to mention the important
statutory provisions that form part and parcel of it. We know that these things are
studiously professed,- but we also know of what materials professions are oftentimes
made, and to what purposes they are applied."

Mr. Williams, alter et idem'? in his speech to the House of
Commons, 31st May, 1825, took the same tone, but without ven-
turing a direct application of his remarks to the existing chancellor.

" The jurisdiction," he said, " was founded in the conscience of the keepers of the
great seal; of which, as they had generally been priests or lawyers, he would merely
say that it was a sandy foundation, if ever there was one, for a great paramount juris-
diction. As his own opinion might have but little weight with the audience he was
addressing, he would venture to state to the House what an eminent lawyer of former
times had said upon this subject. Selden, whose learning was as unbounded as his

Online LibraryHorace TwissThe public and private life of Lord Chancellor Eldon, with selections from his correspondence (Volume 2) → online text (page 58 of 65)