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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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in testimony by affidavits. I adhered to the old course, because I
thought it my duty so to do, and, though I once heard that I had
approved the new course in some conversation, such was not the fact.
What this difference of practice led to, appeared at first to the world
to be this : that, in another court, bankrupt petitions were disposed of
in dozens, whilst the chancellor was employed for hours and days, in
hearing and deciding upon the contradictory facts and evidence on
affidavits in some one petition, or two or three petitions at most.
But, in a fair view of these matters, how stood they in the respective
courts? In the chancellor's court his decision, which was not sub-
ject to appeal, though he might himself rehear it, was obtained at the
expense of the petition alone, and was obtained upon a decision as to
the matter alone of the petition. In the other way of proceeding,
when the parties were sent to law, there was sometimes, but seldom,
an appeal to the chancellor against that measure : for there are per-
sons who have an interest in not adopting a measure, which would
(as in this sort of appeal would probably be the case, the chancellor
hardly ever sending the parties to law in bankruptcy,) put an end to
the matter, and to the profits of further litigation. Being ordered to
try the question of fact at law, the trial is had it was followed by a
motion for a new trial ; if that was granted, then came an appeal to the
chancellor against the grant of the new trial if it was not granted,
then there was an appeal against the refusal of it: and the court had,
in this stage, nearly as much trouble in examining what was the fair
result of the evidence given upon the trial, as it would have had in
sifting out the effect of the evidence originally given in the conflict-
ing testimony in affidavits. Nay, more : for it would be the duty of
the court both to look into those affidavits, and the evidence given
upon the trial, in order to form, according to what had been its rules,
a decision satisfactory to conscience whether the matter should go to
a new trial or not: and in this new mode of proceeding, where the
value of the matter in question might be a few shillings of dividend,
the expenses of the contest about the right to that dividend might
amount to the value of many, very many years' purchase of it. It
was represented to me that the proceedings at law had amounted in
some cases to several hundred pounds, where the thing in contest
was much below one hundred pounds. The new way of proceeding
certainly got more petitions out of the paper of petitions, than the



old (apparently, but not really, dilatory) mode of proceeding: for
though the petitions, in the new way of proceeding, were very
rapidly got out of the paper of the day, nothing was decided, and they
were only sent out of that paper, to return, and with a heavy expense
to the parties, to the place from whence they came. The actual
dispatch was there, where there seemed to be the delay."

Thus far Lord Eldon. "I begin to think," said Sir Samuel Ro-
milly, some time after the erection of the vice-chancellor's court,
11 that the tardy justice of the chancellor is better than the swift injus-
tice of his deputy." Lord Brougham records* that certain wits used
to call the chancellor's court that of oyer sans terminer, and the vice-
chancellor's that of terminer sans oyer. It once happened in the
recollection of the compiler of this memoir, that all the causes ready
for hearing in Sir John Leach's court were cleared by him before the
end of the term, and that three or four days were left, during which
there appeared no business for him to do. Somebody asked how the
judge was to fill up that time. " Why," said Sir George Rose, " let
him have his causes set down again, and hear the other side !"

The following conversation with Mrs. Forster illustrates Lord El-
don's careful guardianship in a class of cases, where the vigilance of
the judge is especially requisite for the protection of the suitor:

"It is astonishing," said he, "how ladies come before one to give
up settlements. It is a very amiable feeling in them, but they know
no more what they arer doing than the child unborn ; it ought not to
be allowed. I refused five, no fewer than five ladies who came before
me to express their wijlirigness to give up their property to their hus-
bands ; very kind to them, very unkind to themselves. I told them
they did not know what they were doing, it was impossible they could
know; and I would not receive their consent."

He was ever anxious for the liberty of the subject. In Stanley
Goddard's case, 1 Glyn & Jam. 53, which was an application to dis-
charge a prisoner committed by warrant of commissioners of bank-
rupts, he said :

"It is some consolation to me to reflect, that if I err in thinking that I cannot dis-
charge the prisoner, he may have an opportunity of applying to-morrow to the Court
of King's Bench or Common Pleas, and, in vacation, to each of the judges individu-
ally. The existing rule," (that the judge in order to determine whether the bankrupt,
committed for answering unsatisfactorily, be entitled to his discharge, shall consider
whether the answers be sufficient to satisfy the mind of a reasonable person) " must
of necessity be the source of great pain in the mind of a judge ; for when he is about
to determine that the answer is not satisfactory, and thus detain a man in prison, he
cannot but reflect that to another mind, fully as well able to judge as his own, the
answer may appear satisfactory. I will not, however, decide finally to-day, but will
take an opportunity of reconsidering the subject and applying my mind, undisturbed
by other matters, to a concern of such serious importance as the liberty of the sub-
ject." And see 1 Rose, 413.

His extraordinary stores of legal knowledge never induced in him
a rash reliance on his own memory of the law. When any matter of
difficulty occurred, he was accustomed to examine, out of court, the

* " Sketches of Statesmen," 2d series, p. 27.


whole series of cases connected with the subject of it.* And if any
decision which he had pronounced appeared to him, on subsequent
consideration, to proceed upon mistaken grounds, which, however,
was of very rare occurrence, he was quite as ready to correct his own
error as if he were sitting in appeal from an inferior jurisdiction.
Thus he said in Exparte Nolte, 2 Glyn and Jameson, 307, 308,

"I feel bound to add, with respect to the case of Exparte Wylie, which has been so
repeatedly appealed to during the argument, that as the first duty of a judge is to en-
deavour, in the case before him, to decide rightly, and that his next is, if in any future
case of the like kind he has reason to apprehend that his judgment was not upon such
sound principles as it appeared to be when he pronounced it, that he should not hesi-
tate to rectify his error; looking at both these obligations, I feel myself bound to
state that I must, when I decided that case, have seen it in a point of view in which,
after most laborious consideration, I cannot see it now."

It was not, in Lord Eldon's opinion, sufficient that a judge's decree
should be actually right: he held it important, also, that the parties
on both sides should, if possible, be satisfied of its being so. Thus, in
the appeal of Lord Rancliffe against Lady Parkyns, 6 Dow, 210, he
says, in delivering the judgment of the House of Lords:

"I have two objects in view ; 1st, to satisfy both parties, if possible, and with the
more anxiety, as this (the judgment appealed from} is a judgment of my own ; 2d,
that when disputes arise between persons so nearly connected, these may be set at
rest, or, if not, that they may know that as much industry as possible has been be-
stowed upon the subject."

With a view to give this satisfaction, it was his habit to recommend
compromise, rather than the rigorous justice to which even a court of
equity is sometimes driven when parties insist on a formal decree.
Thus, the case of the Attorney-General against Fowler, where an
injunction was sought by ten or twelve lessees of a dissenters' chapel
against the other two, after pointing out the disadvantage which all
parties must risk if the court were compelled to interfere, he finishes
by declaring his wish

"To impress upon those parties the weighty consideration, whether it is not better
to compose their temporal differences, which cannot subsist without great hazard to
their religious concerns : and to endeavour at least to settle their disputes without
calling upon this court to interpose its jurisdiction." 15 Ves. 90.

The preceding quotations convey the opinions of Lord Eldon upon
many general points of judicial duty. It remains to add the evidence
of his candour towards other judges, and of his scrupulous and labo-
rious anxiety to fulfil his own obligations.

First, as to other judges. In the cause of Lord Dursley v. Fitz-
hardinge Berkeley, 6 Ves. 260, he says :

" The case of an heir apparent was very properly put by Lord C. J. T)e Grey, in his
most luminous judgment. Upon that occasion he said, he never liked equity so well
as when it was like law. The day before I heard Lord Mansfield say, he never liked
law so well as when it was like equity : remarkable sayings of those two great men,
which made a strong^ impression on my memory."

Questioning the accuracy of a report of a judgment delivered by
Lord Northington, he said, (6 Ves. 640):

* See 6 Ves. 263; 14 Ves. 203; 15 Ves. 583 ; 1 Ves. & B. 59 ; 1 Rose, 253; 1
Glyn & J. 384 ; 2 Swanst. 36 ; 2 Bligh, P. C. 402, &c. &c.


" It is difficult to believe Lord Northington said what is reported. He was a great
lawyer, and very firm in delivering his opinion ; and if he dissented from Rose v.
Bartlett, I rather think he would in a firm and manly way have denied that case to be

On an occasion in which Lord C. J. Eyre was quoted at the bar as
having given two contradictory decisions, Lord Eldon said (1 Jac.
369, 370):

" His name has great authority with me, particularly on questions relating to tithes.
His judgments were very elaborate, and generally in writing ; and when the energy
of mind which he applied to them is considered, I am surprised that it could be sup-
posed that he had contradicted himself, and decided differently in the two cases. I
think that, upon an attentive perusal, they will be found to be reconcilable."

Of Lord Hale, asserting the power of the Court of Chancery to issue
the writ of habeas corpus, Lord Eldon says, in Crowley's case, 2
Swanst. 56:

" His opinion is very material (regard being had to the time in which he lived, and
the different offices which he filled). He was appointed judge in 1653, became Chief
Baron in 1660, Chief Justice of the King's Bench in 1671, resigned that office in
February, 1675-1676, and died in December, 1676. In weighing the opinion of Lord
Hale, it becomes us to recollect his eminence as a lawyer, and the stations he adorned,
and that he lived at a period in which he must have been very conversant with the
notions of the different courts of Westminster Hall on this writ ; at a period when
he must have known what was the construction to be put upon the statute of Car.
1, and what were the defects of the law before the statute passed in the reign of
Car. 2."

Having occasion to mention Chief Justice Wilmot, he speaks of
him as " a great lawyer." Crowley's case, 2 Swans. 62. With
reference to Mr. Justice Buller, a most eminent common law judge,
he says, (6 Ves. 333) :

" Speaking with all the veneration and respect due to so great a judicial character,
the point in which it seems to have failed is, that he thought too confidently that he
understood all the doctrine of a court of equity."

He characterises Lord Alvanley thus :

"A very experienced judge in equity: with reference to whom I may say, his
judgments will be read and valued, as producing great information and instruction to
those who may practice in courts of equity in future times." 15 Ves. 347.

The most eminent of his predecessors was undoubtedly Lord Hard-
wicke : and if rivalry for fame could have engendered jealousy in
Lord Eldon, Lord Hardwicke would have been the judge whom he
would have been most unwilling to exalt. But Lord Eldon had no
such littleness. In one case he says, (6 Ves. 812) :

"He (Lord Hardwicke) was one of the greatest lawyers who ever sat in West-
minster Hall."

Again, 6 Ves. 126 :

"There is the authority of Lord Hardwicke upon the point, which would weigh
down the most considerable doubt that I could be disposed to entertain."

On another occasion, in stating a point of jurisdiction, he said, (1
Wils. Ch. Ca. 124 :)

" I state that, as the opinion of that great man (for such he was both as a common
lawyer and as a judge in equity) Lord Hardwicke."*

Nor was he at all slower to do justice to the merits of a cotempo-
rary. He spoke of Lord Redesdale (1 Dow, 348) as a judge

* And see 2 Rose, 166.


"who had presided in the Irish Court of Chancery with so much credit to himself
and advantage to his country, and who, in addition to his knowledge of equity, was
as good a common lawyer as any in the kingdom."

And in another case, 9 Ves. 54, he characterises Lord Redesdale's
book, " Mitford on Pleadings in Chancery," as " a wonderful

So with reference to Sir William Grant, who, except the lord
chancellor himself, was the greatest Equity judge of the time, Lord
Eldon said, in James v. Dean, 11 Ves. 391

" I feel a strong inclination of opinion upon this question ; but I shall not hold any
opinion of my own without doubt, when the master of the rolls has held directly the

And again in Mills v. Farmer, 1 Meriv. 94

" I feel that in differing from so great a judge, my own decision will not hereafter
possess all the authority which might otherwise attach to it."

But he did not allow his courtesy or candour to restrain him from
censuring any practice in other judges, whether prior to or cotem-
porary with himself, which he thought prejudicial to the great interests
of justice. In the case of Gordon v. Marjoribanks, 6 Dow, 111,
which was an appeal to the House of Lords from the Scotch Court of
Session, he said, with reference to the speech of Lord Mansfield in
1772, on the appeal of Deas against the Magistrates of Edinburgh,

"I thought it my duty, in the case of the Feoffees of Heriot's Hospital, speaking of
tht case of Deas (in which this House proceeded, on the advice of a noble person, of
whom I again say, that, as long as the law of Scotland or of England exists, his name
will be pronounced with respect and veneration, a noble person, who for some time
exclusively managed the business in Scotch causes here, which I do not think a happy
condition of this House) ; in that case, I thought it my duty to say that, with which
if said in his presence, he would not have been offended; always speaking with the
respect and deference due to so great and exalted a character, that, although his in-
tention was not to alarm, I was so infirm, that if I had been one of the corporation of
Edinburgh, I should have been alarmed. And your lordships will pardon me if I take
the liberty again to say, that his speech is addressed a great deal too much to the taste
and honour of parties, instead of dwelling upon their contracts and following the
steps of that correct judicial path, within which a judge is by his duty confined."
6 Dow, 111, 112: and see 2 Dow, 307. 311.

So in Woolley v. Maidment, 6 Dow, 276, he observed, that

"As it was the duty of the House of Lords in deciding Scotch cases, to guard
against the influence of English impressions, so it was the duty of the lords of ses-
sion, in deciding questions of English law, to recollect and resist their natural bias of
Scotch judges to Scotch doctrines. This," said he, is "an English case (though an
appeal to the House of Lords from the Scotch Court of Session): and when we look
at the notes which we have of the observations and comments of the judges, if we
ought, in the administration of Scotch law, to recollect that we are English judges, I
venture very respectfully to hint to them, that, when they are dealing with questions
of English law, they should recollect that they are Scotch judges."

To Lord Eldon's retentive memory of law, Lord Thurlow's fame
is much indebted. It is chiefly in Lord Eldon's judicial reminiscen-
ces of that great lawyer, that he is seen to his due advantage. His
reported judgments are for the most part very imperfectly executed,
and Lord Eldon may be said to have been in person the main depo-
sitory of the law of Lord Thurlow's age.

Ready as he was to do ample justice to the merits of all other


judges, he was singularly modest as to his own. It has already been
observed with what deference he treated the judgment of Sir William
Grant when his own was opposed to it, 11 Ves. 391, and 1 Meriv.
94. So, when the judges to whom he had occasion to refer were of
the same opinion with himself, as in Leigh v. Leigh, where he had
been assisted by Mr. Justice Lawrence and Mr. Baron Thompson :

"Tt is unnecessary," said Lord Eldon,"for me to attempt, what would be of no use to
the bar, to repeat, in terms not so apt to express them, the grounds upon which my
own opinion is formed. I shall be content to acknowledge my obligation to the
learned judges, and simply to state that the advice which 1 have received confirms
the opinion I had upon first reading this bill, and which, throughout the argument,
has never varied." See also 2 Bligh, 643. 690, and indeed all the reports of his
judgments, passim.

Of his own ease he was but little regardful. In the great bank-
ruptcy of Castell and Powell, in which the commission was brought
to him into the country to be sealed, it became requisite, in conse-
quence of an error which he found in that document, to prepare a
new commission. Accordingly a new commission, in due form, was
prepared : and, as the necessary steps for obtaining possession of the
bankrupt's property on behalf of the creditors, so as to exclude an
extent by the crown, could not be taken till this commission had
been sealed, it was a great object to get the sealing without delay.
The instrument arrived at Encombe in the middle of the night: and
the chancellor got up to seal it, 14 Ves. 87, 88. So, in cases of
difficulty, he would himself draft the reference to the master, 16 Ves.
13, or the minutes of the order or decree, 17 Ves. 293.

He was little, if at all, influenced, in the distribution of his patron-
age, by political considerations. The solicitations of the royal
family were his chief embarrassment. In particular those of Queen
Charlotte, the consort of King George III, were so frequent as to
entrench materially on his power of serving his private friends.
Still there were few, at all entitled to his gratitude or affection, on
whom, or on whose families, he did not find means, in his five-and-
twenty years of power, to bestow some favour, at least equal to their
claims : and in many other instances, where no such claim existed,
he allowed himself the pleasure of indulging a kindly feeling toward
worthy persons, who had no interest with him but that of their neces-
sities. He was careful, however, to avoid committing himself by
promises. The letter which follows is a specimen of his cautious but
courteous answers to applications for church preferment :

" Sir,

" I have had the honour to receive your letter respecting the living of . I

trust that you will not impute it to disrespect that I do not express at present any in-
tention as to the disposal of it, except in saying that no person can more strongly
feel the necessity of placing, in these times, most exemplary clergymen in the crown's
benefices. I have never allowed myself to express an intention by whom I should
fill up any living not actually vacant the tenure, by which I hold office, and the in-
convenience of acting upon any other rule than that of forbearing to intimate any
purpose with respect to benefices not vacant, appearing to me to be such, as to jus-
tify my refraining from so doing. Lord Sidmouth, in consequence of your letter to
him, spoke to me upon the subject, and I think, when you may happen to see him, he


will explain to you the reasons of this conduct, and I trust it will not appear incon-
sistent with the respect, with which I am, sir,

"Your obedient servant,


It has been said, and perhaps truly, that, in his distribution of
church livings, he gave too little to eminent ability and learning ;
yet, in the list of those who were indebted to him for such prefer-
ment, are found, among other distinguished names, those of Maurice,
the author of the " Indian Antiquities" of Benson, now Master of
the Temple, and of Phillpotts, now Bishop of Exeter.

His commissionership of bankrupts, much solicited for barristers
of great family interest, were often refused to such candidates, in
order that they might be bestowed upon those working lawyers who
had contributed to the knowledge of the subject, by their useful
publications respecting it.

His higher appointments in the law, those of judges and masters
in Chancery, have, with very few exceptions, been fully approved
both by the bar and by the public. He was much alive to his respon-
sibility in these judicial appointments. It has already been seen how
far he carried his resistance to George IV., on the subject of the
mastership in Chancery for Mr. Jekyll : and with respect to the
selection of the common law judges, he was quite inflexible. " On
one occasion," said he to Mr. Farrer, " of a vacancy on the bench
by the death of one of the puisne judges, the prime minis'er of that
day took upon himself to recommend a certain gentleman to the king,
as a very lit person to fill that vacancy : and finding there was a
disposition in the king to take that recommendation, I very respect-
fully urged, that it was on the responsibility of the lord chancellor
that these judges were appointed, and that I should not consider
myself worthy of holding the great seal, if I permitted the advice of
any other man to be taken, at the same time tendering my resigna-
tion. The minister gave way, and the gentleman I recommended
was appointed."

Lord Eldon has been accused of jealously impeding or discounten-
ancing the advancement of rival judges to the peerage. There seems
f o be no ground for such a charge. Of the two chancellors for Ireland,
appointed in Lord Eldon's time, each was ennobled upon that appoint-
ment. Of the equity judges in England under Lord Eldon's admi-
nistration of the court, only one, Sir William Grant, could have been
considered as having claim to the peerage ; and he does not seem to
have desired it. In the office of Chief Justice of the King's Bench,
there occurred, during Lord Eldon's chancellorship, only one vacancy ;
and it will have been perceived, from a letter of his to Lord Kenyon,
dated 14th Nov., 1818, that Sir C. Abbott, who succeeded to that
office, did not think it expedient, with the moderate fortune he had
then realized, to accept a title of nobility. It had not been the pre-
vailing usage to confer it upon the chiefs of the Common Pleas, and
still less of the Exchequer, except when there were special claims,
and fortune adequate to the rank. And yet, in Lord Eldon's time,
VOL. ii. 27


such a patent was given to the Chief Justice of the Common Pleas,
Sir Robert GifTord, afterwards master of the rolls ; and if any blame
at all can attach to Lord Eldon with respect to this peerage, which,
as already shown, originated altogether with Lord Liverpool, it is not
the blame of having discouraged, but rather of having forborne to
discourage it.

It has even been imputed to Lord Eldon, that from professional
jealousy, he was careful to admit into the law offices of the crown
those men only whose mediocrity insured the supremacy of his own
reputation. The inventors and distributors of this imputation are
probably not aware, that Lord Lyndhurst was appointed solicitor-
general under Lord Eldon.

Akin to these charges is another, more often, and perhaps more
fairly urged, that he is too parsimonious of promotion at the bar. In
the case of Mr. Brougham, it has already been shown that the delay
was not with the chancellor ; but Mr. Scarlett and other eminent men,
among whom even his friend Mr. Wetherell was not made an excep-

Online LibraryHorace TwissThe public and private life of Lord Chancellor Eldon, with selections from his correspondence (Volume 2) → online text (page 60 of 65)