Horace Twiss.

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

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attachment to the genuine principles of the constitution, Selden, in speaking of the
origin of the Court of Chancery, and its way of conducting business, made use of the
following expressions:' Equity is a roguish thing; for law, we have a measure
know what to trust to; equity is according to the conscience of him that is chancel-
lor, and, as that is larger, or narrower, so is equity. It is all one as if they should
make the standard for the measure we call a foot, a chancellor's foot; what an un-
certain measure would this be! One chancellor has a long foot, another a short foot,
a third an indifferent foot: it is the same thing in the chancellor's conscience. "

From these intimations, it might be inferred by those unacquainted
with Lord Eldon and with the court over which he presided, that if
he did not actually break the law to fit his own opinion of a particular
case, he yet held himself at liberty to enlarge, contract, or bend it
according to some personal discretion of his own : whereas, on the
very contrary, it was mainly because he never, severe as might be
the pressure of the particular facts, would allow himself to be seduced
into such a deviation, that he was led (in his anxiety to prevent any
illegal relaxation on the one hand, and on the other any grievance
not actually compelled by legal principle,) to keep particular cases
under his consideration for a length of time, which drew upon him,
and not unjustly, the censure of unreasonable delay in his judgments.
He did not, as a judge, consider himself authorized compulsorily to
award, like a mere friendly referee, that which would be fair between
both parties in the individual case : he felt that general rules are the
only permanent protection of justice, and that to strain them, for the
redress of some particular hardship, would be to let in for the future
the still greater hardship of arbitrary judicature. It has been well
said, that " hard cases make bad law;" and a reference to a few pas-
sages, not at all technical, in some of the judgments of Lord Eldon,
will be sufficient to show how strongly he was impressed with that
truth, and how strictly he acted on the conviction of it.

" It is more important," said he, in the great case of Jesson v.
Wright, "to maintain the rules of law, than to provide against the
hardships of particular cases." 2 Bligh, 55.

In the case of Gee v. Pritchard, the question was, whether the
defendant, who was about to publish some letters addressed to him
by the plaintiff, should be restrained from such publication by the
injunction of the court. Now a plaintiff seeking an injunction against
the publication of any writing must possess a property in it ; and one


of the points made for the defendant was, that these letters were not
writings in which the plaintiff had a property. Lord Eldon, after
stating that had the question arisen for the first time, he should have
found it difficult to satisfy his mind about a letter-writer's property in
the letter written by him, proceeds to say,

" But it is my duty to submit my judgment to the authority of those who have gone
before me ; and it will not be easy to remove the weight of the decisions of Lord Hard-
wicke and Lord Apsley. The doctrines of this court ought to be as well settled, and
made as uniform, almost, as those of the common law, laying down fixtd principles,
but taking care that they are to be applied according to the circumstances of each
case. I cannot agree that the doctrine* oft/tis court are to be changed with every succeed-
ing judge. Nothing would inflict on me greater pain, in quitting this place, than the
recollection that I had done any thing to justify the reproach that the equity of this
court varies like the chancellor's foot." 2 Swanst. 414.

In Davis against the Duke of Marlborough, a case involving a con-
sideration of the equity, upon which relief is given against bargains
made with heirs expectant, under circumstances which would not
have invalidated such bargains if made with persons in actual posses-
sion, the lord chancellor said,

"I am aware that, during my whole time, considerable doubt has been entertained,
whether that policy, with regard to expectant heirs, ought to have been adopted; and
although Lord Thurlow repeatedly laid it down, that this court does s.hielJ heirs ex-
pectant, to the extent of declaring a bargain oppressive, in their case, which would
not be so in other cases, and imposes an obligation on the parties dealing with them
to show that the bargain was fair, yet he seldom applied that doctrine without com-
plaining that he was deserting the principle itself, because the parties dealing with
the heir expectant insured themselves against that practice, and therefore the heir made
a worse bargain, but he certainly, like his predecessors, adhered to the doctrine,
though not very ancient. It is not the duly of a judge in equity to vary rules, or to say
that rules are not to be considered as fully settled here as in a court of law." 2
Swanst. 162, 163.

Speaking of a certain trust, in Attorney-General v. Forster, Lord
Eldon said,

" It struck me at first as a point of considerable doubt, whether the court should
execute such a trust. If it was unprejudiced by decision, that doubt might be main-
tained by strong argument; but it is too late now even to state it: for there is authority
binding my judgment entirely upon that." 10 Vesey, 342.

Respecting a married woman's power over estates settled to her
separate use, he used these words :

" If it is asserted, that though Lord Thurlow, following his predecessors as far back
as the doctrine can be traced, repeatedly decided upon this principle, this court has
now a right to refuse to follow it, I am not bold enough to act upon that position."
11 Vesey, 221.

In Gordon and Marjoribanks, before the House of Lords, 6 Dow,
112, he expressed himself thus strongly against the notion of disre-
garding prior decision :

"As to the observation made with respect to the case of the Feoffees of Heriot's Hos-
pital, that the judgment of this House in that case was one to be obeyed, not to be fol-
lowed, I must take the liberty to say, that this would be a course which, if pursued,
would call for some attention. For, although every court may say, that, if a case va-
ries in facts and circumstances, it is at liberty to proceed upon these different circum-
stances, I do not recollect that it ever fell from a judge in this country, that he would
obey the judgment of this House in the particular case, but not follow it in others.
That is not a doctrine to which we are accustomed."


Lord Eldon did not allow even the probable intention of a devisor
to overrule the general principles of legal construction.

" Judging," said he, in Smart v. Prujean, " as a private individual, there can no
doubt than when he (the testator) executed the will, he meant, that instrument and
these two letters should have their effect; but unless the rule of law allows me, I can-
not establish the letters." 6 Ves. 566; and see 10 Ves. 175; 6 Ves. 397. 483.

Although the principle of a doctrine once settled might not be a
very intelligible one, he still held himself bound to abide by it : as
in Sheddon v. Goodrich, where in reference to a question upon con-
ditional legacies, he said,

"After the doctrine has been so long settled (though with Lord Kenyon I think the
distinction such as the mind cannot well fasten upon), it is better the law should be
certain, than that every judge should speculate upon improvements in it." 8 Ves.
497; and see 8 Ves. 520.

Nay, although the doctrine were at some variance with principle,
yet, if the decisions upon it were clear, he would not shake it : as in
Davis v. Lord Strathmore, where he said,

" If this doctrine has been settled by decision,! shall be no more inclined to disturb
it than the decisions upon the Registry Act ; as it is much better to rest upon decision,
than to hazard, especially upon the subject of title, undoing what has been settled,
though perhaps not to be perfectly reconciled to principle." 16 Ves. 429.

But if the decisions were not absolute, then it was to principle that
he delighted to resort. And, therefore, in the case of the Queens-
berry leases, he said, emphatically, in advising the House of Lords
upon the judgment they should give,

"All law ought to stand upon principle ; and unless decision has removed out of the
way all argument and all principle, so as to make it impossible to apply them to the
case before you, you must find out what is the principle upon which it must be decid-
ed."! Bligh,486, 487.

Lord Eldon did not, however, hold that a judge of one court is
bound by any opinion which, for his own assistance, he may have
asked on the case before him from the judges of other courts.

" It is stated," he observes, " in Lansdo wne v. Lansdowne, that the lord chancellor of
Ireland, after the return of the certificate from the Common Pleas, retained an opinion
contrary to that certificate, but made the decree according to it, from deference to the
judges of the Common Pleas. In that, surely, there must be some mistake. For al-
though it is highly useful, in legal questions, to resort to the assistance of the courts
of law, yet it must be well known to those experienced in the practice of Courts of
Equity, that they are not bound to adopt the opinion of the Courts of Law to which
they send for advice. It has occurred to me to send the same case successively to the
Courts of King's Bench and Common Pleas, and not to adopt the opinion (though
highly to be respected) of either of those courts." 2 Bligh, 86; and see 1 Swanst. 320,
and 1 Wils. Cha. Ca. 45.

It followed, from the respect paid by Lord Eldon both to principle
and to uncontradicted precedents which were uniform, that where he
had contradictory decisions to deal with, he held himself entitled to
disregard those of them which would not consist with principle.
Thus he said on the great case of Jesson v. Wright, in the House of
Lords, 2 Bligh, 50,

I cannot admit that all the cases cited have been well decided. But it was hardly
to be expected that judges should agree in the decision of all these cases ; for the mind
is overpowered by their multitude, and the subtilty of the distinctions between them.


These difficulties make it the more necessary that we should deliberate before we
determine this case: the decision ought to accord with former authorities, if possible,-*
but, at all events, we must adhere to the established rules of legal construction."

Lord Eldon indeed took a distinction in point of flexibility between
the rules of law and the rules of practice. For, though he would
not relax even a rule of mere practice simply from a motive of feel-


He said, in the case of the Princess of Wales v. Lord Liverpool, 1 Wils. Cha. Ca.
126, "There is no general rule, I apprehend, with respect to the practice of this court,
that will not yield when the clear and obvious demand of justice requires." And he
referred to his own decision in Beckford v. Wildman. 16 Ves. 438, as having settled
that doctrine. See also Duller v. Bulkeley, 2 Swanst. 374.

The deep sense which Lord Eldon entertained of the obligation to
follow settled decisions made him peculiarly careful, before he pro-
nounced a judgment, to assure himself that any law he was called on
to follow had been settled, and that any precedent he was called on
to establish would be safe. Adverting to a question upon the neces-
sity for repeated assignments of a term to attend the inheritance, he

" If it is true that the law of the court was decided to be such at the time by Lord
Hardwicke, and has been since understood to be so, that must prevail. But if is ne-
cessary to be perfectly satisfied that Lonl Hardwicke did consider the law as settled in
that case, and that it has since been so understood." Maundrell v. Maundrell, 10
Ves. 259. And see the case of Lord Dursley, Berkeley, 6 Ves. 259.

Thus, too, on the before-mentioned applications to restrain literary
piracy of works objectionable in their character, J he declined to fol-
low a practice of former judges which appeared to him to be at
variance with principle, and was not settled by any positive decision.

Not only would he exercise no accustomed jurisdiction on any
other than the established principles of law, but he would not assume
a new jurisdiction, on mere grounds of moral justice, where he found
not, in the previous decisions of the courts of equity, some analogy
to warrant him, or some principle already settled from which his de-
cision would be a legitimate corollary. This was illustrated in Grier-
son v. Eyre, where the king's printer in Ireland was plaintiff, claiming,
on the ground of certain resolutions of Parliament respecting the
printing of statutes, an account from the king's printer in England
for a proportion of profits derived from copies distributed by the de-
fendant in Ireland. The Irish and the English printer, the former
of whom had been appointed before the union, appeared to have con-
current patents ; and the chancellor being therefore of opinion that
there was no ratio for the apportionment of profit between them, de-
creed against the plaintiff, using these words :

" I cannot enter into the consideration of the moral right: he must have such a right
as a Court of Equity takes notice of."

And, being further pressed on a subsequent day, he added,
"That whatever natural equity there might be upon this subject, there was no such
equity as this court can administer." 9 Ves. 347.

That is, if reconcilable to former authority,
f Freeman c. Fairlie, 3 Merivale, 30.
t Above, pp. 393, 394.


On the other hand, he was not disposed to narrow the authority of
his office. Sitting in bankruptcy, in which the jurisdiction is that of
the great seal and not of the Court of Chancery, and to which," there-
fore, the powers of the chancery are not incident as such, Lord Eldon,
when called on to direct the attendance of witnesses before commis-
sioners, made the order, saying,

"It will turn out, I believe, that the great seal has exercised authority analogous to
this; and if so, I will not give up the au//ionV i y."- 7r Exparte Lund, 6 Ves. 783.

Both the open and the anonymous accusations against Lord Eldon
have now received a full, and, it is hoped, a satisfactory answer. The
open accusations, which turned upon delay, seem fairly to result in
this: that the procrastination of particular judgments after hearing
was justly chargeable upon him, though to nothing like the extent
suggested by his political opponents ; but that the general arrear of
his court was occasioned by no fault of his, and on the contrary, was
met by him with greater exertions than had ever been made by any
other equity judge. And the anonymous invectives, which dis-
paraged his judicial powers, principles, attainments, and performances,
(but which, even after they had been hazarded in the "Edinburgh
Review," not one of the fierce and able lawyers who led the Oppo-
sition ever ventured in public to back or even to repeat, except upon
the secondary point of style in composition,) will probably by this
time be admitted to have been every one of them, with only that
single exception, either groundless as to its facts, or unreasonable as
to its conclusions.

I. 5.

It may now, perhaps, be gratifying to the reader to be furnished
with some connected account of the views taken by Lord Eldon upon
several important points of his judicial duty, which have never been
made subjects of public attack or discussion.

The ancient maxim, that Christianity is a part of the law of En-
gland,* was held by Lord Eldon, (as it had before been by Lord
Hard\vicke,)f to be no less binding on the courts of equity than on
those of common law. Thus, on the petition of certain elders of
Jewish congregations, praying a declaration of the admissibftity of
Jews in common with Christians to the benefit of the Bedford
Charity :

Lord Eldon, in giving judgment against the petitioners, upon the construction of
the charter and of the Acts of Parliament bearing upon it, which construction, he
said, formed the simple question for his determination, observed that many argu-
ments had been addressed to him from the bar on the practice and principle of tole-
ration; but, added he, "I apprehend that it is the duty of everv judge, presiding in.
an English court of justice, when he is told that there is no difference between wor-
shiping the Supreme Being in chapel, church or synagogue, to recollect that Chris-
tianity is part of the law of England; that in giving construction to the charier and
the Acts of Parliament, he is not to proceed on that principle further than just con-
struction requires ; but, to the extent of just construction of that charter and those

* As to which see Taylor's case, 1 Vent. 293, 3 Keb. 607. 621 Woolston's case.
f Da Costa r. De Paz, 2 Swanst. 420, in note.


Acts, he is not at liberty to forget that Christianity is the law of the land." Bedford
Charity Case, 2 Swanst. 527,528. And see Attorney-General v. Pearson, 3 Mer. 399.

Where the making of the decree in equity involved the necessity
of a decision upon points of law, Lord Eldon held it the duty of an
equity judge to deal with them, if clear. In Underhill v. Horwood,
10 Ves. 220, he said,, that

Upon a former case (Bromley v. Holland, 7 Ves. 3) he had thought himself bound
to decide the question upon the legal- effect of certain instruments; but I did so, added
he, "expressly declaring the reason, that I thought it within the jurisdiction of a Court
of Equity to decide the point of law, though a Court of Equity ought to be very cau-
tious not to exercise that jurisdiction if the point is reasonably doubtful."

There is a story of a young barrister, who, having the offer of a
judicial situation in one of the colonies, hesitated to accept it from
diffidence in his own legal attainments, and consulted an old friend,
an experienced judge on the English bench. " Oh," said that
learned person, "I dare say your good sense will carry you safely
through, only take care to avoid giving reasons for your judgments ;
for though your decisions will, probably, be right, your reasons for
them are not at all unlikely to be wrong." This policy, however
convenient for a young gentleman advanced to a seat which he was
not yet very competent to fill, is hardly suitable to the dignity of the
supreme appellate jurisdiction of the realm; and it must therefore be
matter of some surprise to readers unacquainted with legal usages,
that, until our own time, it was the practice of the House of Lords to
pronounce its judgments without a statement of the reasons. Such a
practice Lord Eldon did not think it consistent with his duty to con-
tinue. In 2 Dow, 283, Wight v. Ritchie, his opinion upon this sub-
ject is thus reported:

"It was always useful to state the reasons which influenced the mind of the judge
in giving judgment. If pronounced by a judge from whose decision there lay an ap-
peal, counsel and the advisers of parties had an opportuniiy of weighing well the
grounds of the decision ; and when the matter came to the court of last resort, where
the principles were settled which must regulate the decisions of inferior tribunals, it
was their duty to consider all the principles, to which facts, in all their varieties,
might afterwards be applied."

And where a case was of first impression, he thought it necessary
not only that the reasons should be given, but that they should be
given fully. Thus, in Butcher v. Butcher, 1 Ves. & Bea. 96, he

"Upon a subject which has been so much the topic of discussion and decision, it
would be a waste of time to trace the doctrine, from beginning to end, through all the
cases, an has been my habit: which I hope will produce at least this degree of service,
that I shall leave a collection of doctrine and authority that may prove useful"*

Lord Eldon had a great dislike to all those evasions of duty by
which some judges have sought to escape from responsibility, and get
credit for dispatch. Speaking of a question, whether, after certain
stages taken with the view of an ultimate appeal to the House of
Lords, the lord chancellor, on a rehearing in the Court of Chancery,

And see Attorney-General . Skinners' Company, 2 Russ. 437.


ought to pronounce a merely formal affirmance of judgment, for the
purpose of forwarding the case to that House, Lord Eldon said,

"I consider it contrary to the duty of a court of justice, under any circumstances,
so to act. The suitors have a right to the deliberate attention and deliberate judg-
ment of every court, in every stage in which, according to the constitution, the
cause may proceed ; and there can be no circumstances under which I should ever
permit myself to say, ' As the cause is to go elsewhere, I give no judgment but pro
forma.'" Brown a.Higgs, 8 Ves. 566, 567.

In the following vindication of his own principles upon these sub-
jects, which is extracted from his Anecdote Book, he has plainly had
in view the very opposite practice of vice-chancellor Sir John Leach,
who was apt to be somewhat ostentatious in his dispatch of business,
as if to contrast his own celerity with the slowness of the chancellor.

"There is nothing which a judge may so easily acquire, as the
character of a quick judge, one noted for getting through business.
In times subsequent to Bacon's, what he applies to a judge in
Chancery that he had heard of, might be applied to judges that
others had heard of. ' It makes me remember,' he says, ' what I
heard one day of a judge in chancery, that he would make forty
orders in a morning out of the way : and it was out of the way in-
deed, for it was nothing to the end of the business, and this is that
which makes sixty, eighty, an hundred orders in a cause to and fro,
begetting each other. But I mean not to purchase the praise of ex-
peditive in that kind, but as one that have a feeling of my duty, and
of the ease of others. My endeavour shall be to hear patiently, and
to cast my order into such a mould, as may soonest bring the subject
to the end of his journey.'

" References to masters, sending cases to common law courts,
directing issues and actions, are also, where they are unnecessary,
modes of ' dispatching business' in one sense of those words, and
delay it in fact. The judge gets the credit of expedition, and in fact
is the cause of the most injurious delay. The judge who avoids such
references, gets the discredit of being dilatory, and in fact is expedi-
tious. This discredit no man had more of than fell to my lot; for,
as Lord Bacon recommended, ' I kept the keys of the court myself,
and did not refer to a master any matter tending to discharge or dis-
miss the court of the cause, but judged of it myself.' I did not make
'a communication of the authority of the chancellor too far' by refer-
ences. That is ' making too many chancellors.'

" If this mode of expedition ever obtained in my time by the acts
of other judges in the court, I believe it will be found, that if such a
judge sent matter of law to a master, and if, upon his report made,
that judge differed in opinion with him, the master's judgment was
always used as a sanction for an appeal to the chancellor : whereas
the opinion of the judge, if originally given without a reference to the
master, would have been acquiesced in ; and I am afraid that it may
be too truly said that, in my time, it was, in a considerable measure,
owing to this circumstance, that there were so many of such appeals.

"Another circumstance which, in the question of expedition and
delay, I fear affected my character injuriously, was what took place


in bankruptcy. It had been the constant and uniform practice, as I
believe, in the administration of justice in bankruptcy before the
chancellor, that he should himself decide matters of law, except in
extraordinarily difficult cases, when he might call for the opinions of
the judges of a common law court : and also decide upon questions
of facts, notwithstanding contradictory affidavits, without requiring,
(or at least without requiring, till, after very anxious consideration of
conflicting affidavits, he could not satisfactorily decide without re-
quiring,) the opinion of a jury in a verdict. It was represented that,
in another court of the chancery, it had become matter almost of
course, to send every case to a jury, where there was contradiction

Online LibraryHorace TwissThe public and private life of Lord Chancellor Eldon, with selections from his correspondence (Volume 2) → online text (page 59 of 65)