Philip Chesney Yorke.

The life and correspondence of Philip Yorke, earl of Hardwicke, lord high chancellor of Great Britain online

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Chancellor Hardwicke .^..The Lord Chancellor Hardwicke went on
with great rapidity in the decision of cases. It was to be recollected
too that he decided much of what now came before the Master of
the Rolls. It might be said that he too had arrears. But at the end of
a session he was obliged to leave over 100 causes to the next, because
the solicitors could not keep pace with him." The speaker was
supported in this statement by the high authority of Sir Samuel
Romilly^ In the obituary notice pubhshed in the Annual Register
for 1764 (p. 280), drawn up by his sons, special mention is made of
his extraordinary despatch of the business of the Court of Chancery,
notwithstanding its unprecedented increase in consequence of the
Chancellor's great reputation and the growth of trade. Further
evidence can be drawn from the law reports themselves, where
in the case of contested wills, for instance, it often happens
that proceedings in Chancery under Lord Hardwicke were begun
and the case decided one or two years after the death of the
testator^ It is obvious that such expedition would be impossible,
if the Chancellor had his cause list loaded with arrears.

These facts and testimonies show clearly that Chancery business
was in a very different condition under Lord Hardwicke from that
which existed later and attracted public attention and criticism,
and that in his time, as far as the Chancellor was himself concerned,
the work of that court proceeded with smoothness and regularity.

But to press the signification of these figures too far would be
misleading. It is obvious that the mere enumeration of cases
decided must be an exceedingly inadequate method of forming an
opinion of a judge's judicial capacity or of his energy or industry ;

^ Pari. Deb. xxiii. 58-9; for further debates on this topic see xix. 260, xx. 437, N. S.
ix. 736, X. 405, xvi. 716, xix. 51.

^ E.g. Inchiquin v. French (Ridgeway, 230, Ambler, 33), Hilaiy, 1744, where the
testator died 1741, and Moggy. Hodges, Nov. i6, 1750 (i Cox, 9), when the testator's
will is dated April 6, 1748.



ABSENCE OF CONGESTION UNDER HARD WICKE 509

and, as a defender of Lord Eldon has pointed out, a large number
of cases in Chancery were then decided on motion and never came
to a decree, as was the custom in Lord Hardwicke's time, a fact
which might do much to redress the balance against the former^
We will continue no longer a mean and odious comparison. Nor
will we take any part in making the distinguished talents, and the
long and exceptional public service of one great man, the ground
and basis of attack upon, or disparagement of, his famous successor.
It may readily be conceded that, in the later period, the Chan-
cellor was more frequently interrupted in his judicial duties than
in that of Lord Hardwicke's administration'', and that various
unfavourable circumstances, the exact force of which it is difficult
to judge, existed in Lord Eldon's time, which are fortunately absent
in Lord Hardwicke's. But we have thought it necessary to correct
mistakes, and though somewhat tedious, to point out that the
assertion of one anonymous and mendacious writer, though reiterated
a dozen times by authors of different character and authority, is
not more worthy of credence on that account, and is entirely
disproved by strong independent and official evidence.

Great celerity in making a decree, unless it proved well-founded,
complete and decisive, compatible with established precedents and
capable of supplying a principle on which other similar cases
might hereafter be founded, would inevitably prove a cause of
delay and of further litigation rather than of despatch'. " I have
seen," said Lord Bacon, " an affectation of despatch turn utterly to
delay at length ; for the manner of it is to take the tale out of the
Counsellor at the bar his mouth, and to give a cursory order,

^ Quarterly Review, xxx. 283 sqq. We cannot however follow the writer in lumping
together the number oi causes, petitions and motions, and thus making out a case of superiority
for Lord Eldon. His statistics of appeals to the Lords also, viz. Ld. H. 1737-1756 — 235
cases, Ld. Eldon 1801-1822 — 469 cases, appear to embrace a longer period by two years in
the latter case than in the former and the whole calculation is vitiated by the fact that
Ld. Eldon from 18 13, besides the Master of the Rolls as in Lord H.'s time, had the services
of another judge, as Vice-Chancellor in Chancery, while in the H. of Lords Ld. Redesdale
took an active part in appeal cases from 1806. This fact the writer has entirely forgotten.
See also Ed. Rev. xli. 419 sqq. Twiss's calculations (Life of Eldon, ii. pp. 425-432)
are again vitiated by the same misleading arrangement and choice of years, and by electing
to take only the three years 1752-4 of Ld. H.'s administration for comparison, although
he had the statistics of the whole ten years in front of him, giving as one reason for
his choice that they produced the largest average of bills filed (pp. 427, 430). On
turning to the complete table it will be found that this is by no means the case.

* E.g. according to Twiss, whose figures however we follow with some distrust, H.
attended the House of Lords where his duties were sometimes performed by a deputy, as
Speaker in the years 1752-4, 233 days, and E. in 1819-21, 385.

' This was said to be the case with Lord Erskine's decisions.



sib LORD CHANCELLOR 1737-1756

nothing tending or conducing to the end of the business. It
makes me remember what I heard one say of a Judge that sat in
Chancery, that ' he would make 40 orders in a morning out of the
way,' and it was out of the way indeed, for it was nothing to the
end of the business. And this is that which makes 60, 80, or 100
orders in a cause to and fro begetting one another, hke Penelope's'
coat, doing and undoing'."

Often delays were unavoidable. One great cause of such was
the separation of the equity and common law jurisdictions. We
have seen how, the defects of the common law led in very early
times to the rise of a supplementary jurisdiction, and how the
gulf separating the two systems widened continually down to the
Revolution, afterwards to abate under the influence of Lord Hard-
wicke himself I

This separation of jurisdictions, though justified and rendered
necessary by the peculiar developement and history of law in
England, yet had grave disadvantages. It was often a question of
great difficulty and anxiety to decide under which jurisdiction a
suit should be begun, and an error on this point led to great
pecuniary loss and delay ; while sometimes a double suit, both at
common law and equity, with all the attending expenses and post-
ponements, was necessary. Again, when the facts or points of law
were doubtful, the Chancellor, though he was not obliged, would
often send the case to be tried at common law, or the Judges
would be asked to give an opinion on the matter. Instances of
inconvenience and delay thus occasioned were very frequent The
case of George Anstis^, 7 George II, which came before Lord
Hardwicke as Chief Justice, is a good illustration. Here the
plaintiff moved for a mandamus to compel the Archbishop of
Canterbury to admit him as a Fellow to All Souls College as
founder's kin. He was, however, refused the production of the
original book of statutes on which he founded his claim. He had
therefore no case to lay before the Court ; and the Chief Justice,
having no power to direct a discovery of the statutes, the plaintiff
was compelled first to obtain this from the Court of Chancery.
There, however, he could obtain nothing else, and would then have
to return to the Court of King's Bench for relief. In Dixon v.
Parker*, March 8, 1751, Lord Hardwicke advised the defendant

1 Quoted by Lord Eldon in his Anecdote Book (Twiss, ii. 486). See also thfe reply of
the French Chancellor, D'Aguesseau, Lord H.'s contemporary, to the complaints of his
delays. Butler, Reminiscences, i. 285. ^ pp. 415, 420, 435 sqq.

3 Cunningham, 37. * 2 Vesey, 219.



SEPARATION OF EQUITY AND LAW 511

since he could not himself make a final decree, and the case would
have to "run out into a trial at law," to give voluntarily some
compensation to the plaintiff.

The whole question was discussed by Lord Hardwicke in his
letter to Lord Karnes^ He did not deny the existence of these
inconveniences but, in his view, an attempt to remedy them
would result only in still greater evils. The ground of his
opinion was the same as Lord Bacon's ^ that an amalgamation of
the two systems would inevitably result in the swamping of the
settled maxims of the common law by equitable and discretionary
principles. Common law held a far weaker and an inferior posi-
tion at that time relatively to equity than it did later, when it had
accepted many doctrines from the rival system and had thereby
become greatly strengthened ; and there is every reason to think
that there were solid grounds for the apprehensions then expressed.
The ancient and solid foundations of law and right would perhaps
have been swept away and replaced by Vague principles of abstract
justice, interpreted without any uniformity by the various Judges,
amidst which the national liberties might have perished. The con-
fusion would then, in all probability, have spread from the law
affecting personal rights and property to the criminal law which, in
its turn becoming undecided and enfeebled, the whole fabric of
society might have been endangered.

While Lord Hardwicke, however, gave no support to the idea
of uniting the two jurisdictions in his time, the later arrialgamation
was largely owing and rendered possible by the developement, both
in equity and law, which began under his influenced

In the first place, the principles of equity became, as we have
already seen, more fixed and systematic and less capable, than
in earlier periods^, of extensive encroachments upon the common
law, and during the rule of each succeeding Chancellor this tendency
became still more marked. Simultaneously with this transforma-
tion in equity, a developement was taking place also in the common
law, not towards further restrictions and rigidity, but on the con-
trary in the direction of expansion and equity.

Lord Mansfield was the great Judge whose name must always

' PP- 552-3'
■ '^ Neque enim servabitur distinctio casuum, si fiat commixtio jurisdictionum ; sed
arbitrium legem tandem . trahet. Letter on Jurisd. of the Marches, Works (Spedding),
vii. 602 ; De Aug. Scient., Lib. viii., c. 3, Aph. 45.

^ Above, pp. 436 sqq.

^ See also Proceedings oj Jurid. Society, ii. 290.



512 LORD CHANCELLOR 1717-17$^

be especially associated with this developement. He carried into
the common law the principles he had learned from Lord Hard-
wicke. "His ideas," said Burke, "go to the growing melioration
of the law, by making its liberality keep pace with the demands of
justice and the actual concerns of the world ; not restricting the
infinitely diversified occasions of men and the rules of natural
justice within artificial circumscriptions'." He declared that he
"never liked law so well as when it was like equity^"; that the
law "works itself pure" by the fresh streams which it draws
from its original fountains of justice^" " In the construction and
exposition of the law, he had uniformly endeavoured to pro-
ceed upon the application of those rational principles of uni-
versal justice, which are recognised by every experienced jurist
as a leading ground of legal obligation*." He went great lengths
in introducing equitable principles into the common law, and
his decisions were savagely assailed by Junius and his political
adversaries. They have also been criticised by more impartial
authorities and on better grounds. Thus Sir Frederick Pollock V
while calling him the most illustrious exponent of the rational
and ethical tendency, considers that he " sometimes carried it
further than a mature system would bear." In the well-known
case of Perrin v. Blake, he is said to have " sacrificed the advantage
of a settled rule to prevent a miscarriage of substantial justice."
Undoubtedly, he showed much less caution and prudence in these
leanings towards equity and " natural law " than Lord Hardwicke
himself. He exposed himself to the charge of want of uniformity
in his decisions. In the great Douglas case, for instance, in which
certain evidence was undoubtedly forged^ he rejected the doctrine
that "false in one thing is false in all things"; while in the Anglesey
case he laid down the principle that parole evidence might be
cancelled by a clear proof of forgery. He went so far as to apply
equitable rules to legal estate*, while Lord Hardwicke had decided
in Chancery that the principles of interpreting equitable limitations
were the same as in law'. The general result, however, was

1 Works (1826), xiv. 385. ^ Twiss, Lord Eldon, i. 235.

' Holliday, Life of Mansfield, i^%. * Goodeve, Lord MansfUld, 13.

^ Oxford lectures, p. 38; see also Ram, app. 438; Twiss, Life of Eldon, i. 235, where
Lord Eldon seems to imply that Mansfield had no accurate knowledge of equity but
only followed the ideal; Warren, Law Studies, i. 497 sqq. and ii. 1353; Holdsworth,
Hist, of Eng. Law, i. 353; A. Stuart, Letters to Lord Mansfield (1773), Letter I.; see
also, Strictures on Eminent Lawyers, 51 sqq.

" In Doe V. Pott, J. J. Park, What are Courts of Equity?, 30.

' With the one exception of words of regulation or modification, Kerly, 193.



LA TER AMAL GAM A TION s 1 3

undoubtedly to expand and vivify the rigidity of the common
law, and the new developement, in its general lines, can be traced
directly to Lord Hardwicke's influence.

The legal system, which he had developed in Chancery, with
its close attachment to precedents and rules and at the same time
with its constant generalisations, its frequent incursions into the
moral and social law, its keen intellectual analysis, its analogies
drawn from Roman law and other sources, and its references to
comparative jurisprudence, constituted a school of philosophy and
of mental training which had considerable influence on many of
the brighter intellects of the day and which, within the circle of the
Bar itself, claimed many enthusiastic disciples. Of all Lord Hard-
wicke's followers, when once the splendid genius of his own son
had been submerged in irretrievable calamity, none was more able
than the brilliant Murray. For many years he had practised before
him in the Court of Chancery, had listened to his arguments and
had caught, to use his own expression, " some beams from his
light." A great number of celebrated Judges and lawyers looked
back to that court as the place where they received their legal
training and acquired the principles of their profession' But it
was on Lord Mansfield that fell Lord Hardwicke's mantle. He
followed in his footsteps. He had the same wide outlook, and
the same knowledge of Roman law. He handed on Lord Hard-
wicke's doctrines and judicial methods, and he inherited also Lord
Hardwicke's great traditions of the grandeur and dignity of the
law, maintaining courageously the old doctrine of libel and
repudiating the character of a " popular " judge, too much sought
after by his rival and antagonist Lord Cam den ^

Since their time the common law courts have accepted more
and more principles from equity^ " The principles of Common
Law have been superseded by those of Equity whenever they come
in conflict, and the powerful administrative machinery of the Court
of Chancery has been adapted to all the divisions of the High
Court... Thus what was termed Equity Jurisprudence now com-
prises the whole of the Law of England, with the exception of

' E.g. "He [Wilmot] seems indeed to have paid more particular attention to the
Court of Chancery, where Lord Hardwicke presided, whom he used often to call his
Master, and for whose wisdom and learning he always expressed the highest veneration."
Opinions of Sir John Eardley Wilmot, 14.

^ See Bishop Newton's description of Mansfield, Life and Works (1782), i. 102.

' Foster, Federal Practice, 2 sqq. ; Kerly, 180, 192; Hemming, Thoughts on the
Fusion of Law and Equity ; Park, What are Courts of Equity .*', 12, 21, 22 ; Fonblanque,
Treatise of Equity, ii. 108-110, where examples are given.

Y- II- 33



514 LORD CHANCELLOR 1737-1756

Commercial Law (which itself seems now to have done its work),
the Law of Wrongs and Administration Law^" At the same time,
the discretionary powers of the Chancellor, which constituted the
chief danger in an amalgamation of the two systems, practically
disappeared, the two jurisdictions thus approaching nearer to each
other till, before the modern Judicature Acts, which finally effected
their union, it could be said that the difference in practice
between equity and law was hot much more than this, that
one class of estates and rights were governed by ' legal ' and
the other by 'equitable' rules ^ Both these developements, the
"pacific penetration" of the common law by equity and the
systematizing of equity itself, can be traced back to Lord Hard-
wicke ; and the union, which he deprecated in his own lifetime
as dangerous and premature, was at last effected in widely different
conditions, as the direct result of his own teaching and influenced

Meanwhile, the separation of the jurisdictions remained a very
real cause of inconvenience, delay and expense. Often, however,
complaints against the working of the law were less justified. The
commissioners of 1836 were "satisfied that much misconception
has arisen relative to the causes of that delay," and imputed much
of it " to the carelessness of some parties, or to the obstinacy and
knavery of others, and to the inattention or ignorance of their
agents." Again : ignorance had led many to believe that a suit in
Chancery could be brought within the same narrow limits as an
ordinary common law case, but the subject of equity proceedings
did not allow short or summary proceedings. Suits dealing with
the administration of trusts endured as long as the trust continued,
and the complicated system of land tenure, trusts and entails
often necessitated protracted litigation ^ The case of La Noy v.
Duchess of Atholl^, for instance, was re-heard after a lapse of
18 years, but the postponement was due to the fact thaf Miss La
Noy was not of age sooner. Examples of this sort were not
infrequent. Occasionally Lord Hardwicke deferred important
cases after the hearing for a day or two, when he would draw up
his decree in writing, thereby treating the subject exhaustively

^ Preface to Story (Grigsby) ; also Snell, 4.
' Park, What are Courts of Equity ? , 13.

* It is curious to note that Roman law went through exactly the same developements,
equity being at first a separate jurisdiction and being finally fused with "law" under one
administration. Snell, 5 ; Story, 33.

* Rep. of Chancery Comm. 1826, p. 9.

' 9 Leach, Modern, 398-9 ; see a similar case, Sir Robt. Walpole v. Lord Coniaay,
Barnardiston, 159.



INCONVENIENCES ARISING FROM SEPARA TION 515

and attaining far greater precision and accuracy, and a more logical
arrangement of the subject, than was possible otherwise^ It was
owing much to the great care which he bestowed on his decrees
that they afterwards became so authoritative. There are no
instances, however, in the reports of his decisions, as in those of Lord
Eldon's, of cases coming up time after time, and being repeatedly
postponed on one point after another. He was thoroughly conscious
of the need for promptness in the administration of the law, and
never attempted to introduce, even in his written decrees, any
literary embellishments or to display his eloquence or learning.
He made great efforts to save parties in a suit unnecessary
trouble, expense or anxiety. Thus in the Duke of Marlborough v.
Lord Godolphin'^, November 26, 1750, he said : " As I am satisfied
what decree I ought to make, it is not proper to put it off, merely
for the sake of putting my thoughts into better order and method."
He then pronounced at once a long decree of ten pages. The
reporter adds : " The next morning his Lordship said he had
forgot to take notice of the cases cited for defendants, but there
was one answer to them all," which he then stated. On another
occasion having, in order to finish a case quickly and to avoid another
day's delay, given his decree from memory, he afterwards dictated
some further observations for the benefit of " gentlemen taking
notes," which in his opinion were " very material," to add to the
report of the easel So in the great cause of Earl of Derby v. Duke
of Atholl'^, a fine opportunity for display of erudition and eloquence,
he avoided entering into the difficult and abstruse questions con-
nected with feudal customs and ancient institutions, and based his
determination on " plain and general points," in order not to delay
the parties or put them to the trouble and expense of further
attendance. He would himself pilot a suitor through difficulties
and delays in a case where the right was manifestly on his side I
Though the time allowed for filing exceptions, namely two
terms and the vacations", seems now excessive, he was careful
to limit strictly the privilege of bringing re-hearings and bills
of review. In Bagshaw v. Spencer'' he declared that second

' Ram, 389; Lord Camden seldom wrote his judgments and usually dispensed even
with notes, Life by Hardinge printed in Campbell, Lives of the Chancellors, v. 363.
According to the latter (vii. 635), Lord Eldon scarcely ever wrote out his judgments, thus
losing clearness and accuracy. ^ ^ Vesey, 61.

' H. 665, f. 109, see also Tumour Garth v. Baldwin, H. 834, f. 413.

* 2 Vesey, 350. ° Wharam v. Broughton, i Vesey, 180.

' Chancery Comm. Rep. 1826, p. 71.

^ Hargrave's copy of Vesey in Brit. Mus. i. 152.

33—2



Si6 LORD CHANCELLOR 1717-17^6

re-hearings were contrary to the general rule of the Court ; and his
remarks in Cunyngham v. Cunyngkam^, and often elsewhere, show"
that he was perfectly aware of the evils which might arise from
this source and from subsidiary motions, enquiries and various
issues of all kinds, which were a fertile cause of obstruction
and delay in Chancery suits. Such opportunities were very care*
fully guarded and controlled, and often refused". In Smith v.
Smith, 1739, he said: "The Court ought to hold a very strict
hand over them, for otherwise they may become dangerous and
used for delays, and therefore I shall consider of some rule
about them for the future^" Even Lord Lyndhurst, arguing on
the other side to prove that Chancery business in 1839 was not
more in arrears than in Lord Hardwicke's time, allows that he had
more successful methods of dealing with unnecessary motions
than the equity judges of his own day, and quotes him as saying:
" I will not hear your motion, but the cause. The cause must be
in progress, so that I can dispose both of the cause and of the
motion at once*." He moreover showed the same caution in
issuing orders ^

He discouraged petty suits in Chancery. In Jesus College,
Oxford V. Bloom^, for instance, a case turning on the removal by
the defendant of some timber worth £7 or £?>, and some stones,
the Chancellor declared that it ought to have been brought in the
Sessions Court in Wales, that it was below the dignity of his Court,
and " that he hoped never to see one of the like nature again." He
dismissed the case with costs. In the same way he said in Brace
V. Taylor'', that the small consequence of the bill was an induce-
ment to the Court to dismiss it with costs.

The delays and expense in Chancery suits' were, however,
chiefly due, not to the press of business in court or defects in the
methods of hearing and deciding causes, but to long-established

' Ambler, 89.

' Att.-Gen. v. Montgomery, H. 668, f. 46, and H. 671, ff. 89 and 98^; H. 832, f. 354;
H. 667, ff. 20, 25, and 42; H. 668, f. 7 i, where he lays down the circumstances in
which alone rehearings should be granted; and Smith v. Smith, where he enumerates the
several methods of correcting errors in decrees, viz. by rehearing, by bill of review, and by
supplemental bill, and dismisses the present bill on the ground that the petitioner linew
of the matter now brought forward at the time of the former decree. H. 665, f. 16.

' H. 667, f. 33; see the rule below, p. 517. ■* Pari. Deb. 3 S. xlviii. 44.

' 3 Atk. 523. ^ Ambler, 54; 3 Atk. 262; H. 669, f. 61. ' 2 Atk. 252.

° Daines Barrington, who admits the existence of delays, gives as an excuse for them:
"the frequent deaths of the parties," which exposes him to the rejoinder that the deaths



Online LibraryPhilip Chesney YorkeThe life and correspondence of Philip Yorke, earl of Hardwicke, lord high chancellor of Great Britain → online text (page 56 of 65)