The Sun.
London, England, 1824-04-28 00:00:00

LORD ELDON.

[From the QUARTERLY REVIEW.I
OBSERVATIONS on the JUDGES of the COURT of
CHANCERY, and the _PRACTICE" rid DELAYS com-
plained of in that COURT.
The Laze's delay has been a complaint ever since England
has had law:. Poets, play-writers and' novelists have made it
the subject of facetious allusion ; disappointed litigants and
disgraced 'PractitiOrieiri have Usat it as a peg on which to hang
their individual malignity ; theorists, who have never weighed
the difficulty of adjusting conflicting- claims, balancing contra-
dictory statements, and unravelling complicated rights, `have
reprobated a delay the causes of which they did not under-
stand ; and many wise and able men have admitted that the
delay does sometimes amount to an evil, although they are
unable to devise any plan by which suits can be accelerated
without endangering the security of ,ndiridual rights, and the
general confidence in the law.
Nor is It in England alone that this problem-has been jocu-
laxly or seriously treated. Every nation which enjoys a free
and impartial administration of law, also suffers the inseparable
inconvenience of delay, and that inconvenience is generally. in
proportion to the merits (in other points) of its legal system.
We hear little complaint of delay in Russia ; in Turkey, we
apprehend, there is none at all. Frederic of Prussia, when he
was modelling his institutions, attempted to give rapidity to
justice—,he might as well have attempted to make round
square ;--nand there are some well known instances in which his
desire to do right speedily, led to substantial and permanent
wrong. France, whose system of civil justice was excellent,
complained, as we do, of the delays of the law, and the chi-
canery of practitioners; iout this was set right at the revolu-
tion : and during the reighs of Robespierre and Tallier), all ,

processes, both criminal and civil, advanced with a rapidity
that at first delighted, and soon after astonished the reforiner3

themselves, --

`Whose herds fell headlong, wondering why they fell.'

In short, it is the infirmity of human nature that falsehood, vio.

lence and wrong are prompt and sudden; while the elucidation
of truth, the proportioning of reparation, and the development
of justice, are difficult, complicated and slow.

But it has been reserved for our days to sea this popular com-
plaint assume a more commanding tone, IA n d receive a degree
of countenance which ( to our knowledge at least) it never had
before. Individual Legislators, as well as Committees of both
Houses of Parliament, have, for some years past; been occa-
sionally,employed on this subject ; and even the Government

itself has, by the appointment of an additional judge in eetiity,
admitted the necessity of doing something to remedy this in-
convenience, and seems thereby to have given encouragement
to propositions for-doing more. We have always doubted the
constitutional propriety of the creation of the office of Vice-
Chancellor, and we more than doubt its expediency and ad-
vantage. Notwithstanding the zeal and ability of the learned
.Terson appointed to that office, is has not (whatever other good
it may have done) accomplished the object for which it was
specifically instituted ; and there even seems reason to appre-
hend that it has had a tendency to increase rather thari diminish
the quantity of equity business ; but one useful effect this ex.
perirnent will have had, if it teaches us how little we ought to
rely on the most plausible propositions ;—how slow we ought to
,be admitting expedients into our legal system ;—how uncer-
tain it is that any alteration of that system will produce the pre-
sumed advantages'iiiiid-how certain it is to produce some in-
conveniences which never were contimplated.
Let it not be supposed that we deny that the administeetion
of our law, like all other human institutions, must be 'affected—
that is, altered in its practical details—by time and circum-
stances ; or that the internal situation of this country has been,
within the last century, so essentially changed. as to vary, in a
mostiMportant degree, the proportion which existed between
the legal business to be done and the means of doing it. It
will be seen in the progress of this Article that we are fully.core;:
vinced of this change, and the views we take of the case are
mainly directed by such conviction ; but we wish in the first
instance to stern the public against imputing to our legal sys-
tem as a fault, that which is really its merit—the diffusion of
wealth and the extension of rights which have groVen up under
its protection, and the confidence which it universally inspires
as a real, impartial, and substantial measure of equity and
justice. We also wish to warn the country against such a sup.
pseition as, that the inconveniences which are occasioned by an
increase of bussinees, are to be remedied by an increase of
judges, and that, because there may be twice as much business
as in Lord Thurlow's time, and thrice as much as in Lord
Hardwick's, the proper remedy would be the appointment of
two or three Lord Chancellors. If, whenever a clamour against
the administration of justice happens to be excited, the Govern-
ment and the Judges are to make a compromise between their
conscientious duty and their desire to satisfy popular demands,
it is not hard to see that such clamours will become-more fre-
quent from every partial success, and that—what with admit-
ting this and altering that—the Constitution of England will
be undermined, and the venerable fabric of our legal system
(like the actual Courts in which it is administered) will be so
amended and improved' by the hands of modern artists, as to
.be no longer fit for the purposes for which it was erected. We
will, however, fairly confess, that although we think it right to
throw out these suggestions, we derive consolation and confi-
dence on this topic, from a quarter which does not at first sight
appear likely to afford any ; we mean the exciters of these
clamours themselves. They do not, we are satisfied, wish to
alter the law—they have no desire to subvert the constitution :
they ate actuated by mere personal motives—by a desire to re-
taliate on the present Chancellor for being blind to their merits,
or by the hope of awakening him to a due sense of their im-
portance—they are far from wishing to overturn the system,
they only want to profit by it—they have no enmity to the Ser.
jeant's coif or the silken robe, they only wish to wear them—..
they have as little desire as we have to overthrow the bench of
justice, they are only anxious to mount it : and, accordingly,
eeannt
been
ea
thateten d
minalaena theg impeach.
chargesnps et a
tc
hh e-
We find that the ancient and general complaint against the
isene
practice
retnthei
ce
immemorial,
ole
mwinelirsiorn
nwwihiet o,cfofurtChanceryioa el°,an;:,
Chancery, are now levelled personally and directly at the indi- '
victual Chancellor.

The delay, the expellee, the anxiety, the ruin, which other
men in other times have attributed to the proceedings of the
Court, are now charged upon the Adige ; every thing else is
kept out of sight—the necessity of the forms in which justice
is slowly, in order to be safely, administered—the passion and
pertinacity of men in defending rights or inflicting wrongs-L,
the indolence, ignorance, or chicanery of practitioners—the
complication 'of the kind of cases which come into Chancery,—
all these are wow passed over in respectful silence, and the
whole evil is discovered to arise from the doubts, hesitations
and delays of the Earl of Eldon. _

We will not waste our readers' time in an eulogy upon this
venerable and execellent judge— one of the greatest, we be-
lieve, of a series of great men, who, for the last 150 years, have
presided in the Court of Chancery, each bringing to the bench,
for the use of his own day, and for the instruction of posterity,
different but admirable powers of intellect and dispositions of
mind. One was eminent for the largeness and another for the
accuracy of his views. The turh of one mind was to the de-
velopment of prihiciples—that of another tended to their prac-
tical application. lie that comes latest has, as to general prin-
ciple, nothing to invent and little to add ; but he has the less
brilliant though more difficult task of distinguishing the effect

of these principles—of reconciling the ever growing variety of
prceedents—and of guarding the application of old principles
and precedents to a new cause, froin any doubt as to the pre-
cise points to which such authorities are to be applied. Lord,'
Nottingham and Hardwicke may be considered the fountains,
as it were, of equity law ; it was reserved for Lord Eldon to il-
lustrate them both (as Coke illustrated Littleton) by the ad-
mirable Commentaries which he has pronounced on the decisions
of his predecessors.
In order to expose the unfair (and, we doubt if we should not
add, Innii4rmint) attempts to make Lord Eldon personally re-
sponsible for all the lacmtvenience which is imputed to the
Court of Chancery, we beg our readers to allow us to make a
few quotations front some works new before•us
It cannot be unknown to you how this Hon. Court of Chan-
cery (which is one of the highest of the kingdom) has had
many grievous complaints preferred against it• in the ffigh
Court of Parliament—how it is traduced, and how sc many
foul aspersions arc thrown upon it, as to be termed a dilatory
court !—Will your Lordship know the reason, and who ate
the caries thereof ? I answer in a word, Counsellors
Our readers, perhaps may think thee this charge is reads
against the present Lorj. Chancellor, anti that they may liDd
in the Parliamentary Debates the names of the Counsellors who
traduced hint—they are mistaken—these words are extracted
front an old tract in the British Museum—this charge of delay
applies to the time of the gre4 Lord Bacon ;. but the nalnel
et l,is trcutucers are forgotten—as those of Lord Eldon will
he.

Again—we have before us a pamphlet with the following
plausible title :
Proposals for Regulating the Law, to make the same more
plain and easy to he understood, and leas chargeable and ex-
pensive than heretofore.'
This Learned Author, who, we believe, was some time
Corral-rum Serjeunt of the City of London, has (aroonsst tru!nl
others to the sante effect, but too long to quote) the tollowlng
passage
Experience 'hews that very great delays and ir?to,i'erabg
shard •r arise from being tost front Court. to Court, viz. front
Chancery to Common Law, and so back again ; nay, au: per-
suaded that not one csuse of ten,- esuec!ally if of any copse-
quer!ce, but first or last come; into Chancery merely for
detcyk, by which means peacable-minded men will ratber
give away half their right then, be troubled to site for it.'
Our readers may probably suppose that this refers to the pre'
sent impaired constitution of the Court of Chancery, and that
they can give a shrewd guess at the name of the Common-See-
jean t ; but here again they are mistaken—the date of this tract
is about 1541—the Chancellor, or rather Lord Keeper of the
day was Lord Littleton, the writer was Caithorpe, after-
wards (absitomen 1) Recorder of London.
.

Proposals concerning the Chancery, wherein is set forth the
desires of divers well affected persons fel' the regulating of
the High Court of Chancery, and the pioceedings there,
and abolishing of several fees, offices and'officers thereunto
belonging.'
This pamphlet, complaining of the great delays in the Court
of Chancery, and enormous profits of the offiCcrs—(the Kiz
clerks having upwards of 2,0001 per ann. each)—is so much in
the style of our own day, that we :tie astonished to find it pub-
lished—not in the corrupt times of Geo.-III: or Geo. IV., but in
the pure and regenerate age of the Cowi.;iionwecttla—not when
poor Lord Eldon sat single-handed, in the Lords and in Chan-
cery—inamacy and in banitrupts-Lbut when the Great Star
was in commission; as Firnnes, Lick, and Buistrode White-
lock, were Commissioners.

We now approach more modern times. Mr. Williams, -14
eminent Barrister, asserts that,
By our Magna Charta (upon which we much value oar-
selves), cap. 29, it is ordained, that justice should not be sold,,
or denied, or delayed by the King to any man. But if by the,
subtle contrivance of the officers and clerks in the Courts V
Equity, the proceedings are extended to an extravagant and
unnecessary length, and thereby the charge of prosecuting or
defending men's rights is extravagantly increased, and the de-
termination of causes is unnecessarily and unreasonably do'
laved, I take it to be a selling pf justice and right at too dear,
a rate; and it is manifest to all that have had any experience of
Chancery suits, that the charge and delay in proceedings there
are grown to be such, that in causes of great wrong and op-
pression, the remedy is worse than the disease, and moss men,
of small and indifferent estates, that come thither for relief,
often meet with ruin by the very charge of the proceedings.'
These . will not surprise our readers, as the sentiments
of Mr. Williams ; hilt they may be a little startled to hear that
this gentleman's Christian name was Waiter ; that these com-.
plaints were Uttered—not in a speech in Parliament in 1014,
but in a pamphlet published about 1709, and that the Ctian-,
cellor, to whose administration the complaint must have more
immediately referred, was not the Earl of Eldon, brat Lord
Chancellor Sonars !

We shall next venture to quote—
Reasons humbly offered to both' Houses of Parliament to.
passing a bill to prevent delays and expenses is suits in law and
in eqUity.'
This author insists that " '
The-unavoidable expense, as well as unnecessary doily, , the prosecution of .nits in the Courts of Law and Equity ( es-
pecially in the. latter.). are become so exorbitantly great and
burthensome to.tlic subject, that they may be justly rs.ned
amongst our first4ate grievances '.• • ,
we had room to quote more of this author's styl4 and sell'
timents, not a doubt would remain, on• the minds of our readers
that he was one of those Gentlemen who have discovered that
the whole guilt of .soch enormities • lies on -the head of Lord
Eldon ; but the truth is, that this work
,was published in 17(•
and directed against the Court of Chancery while presided by
Lord Chancellor Cowper !
One quotation from another pamphlet, and we hare done.
• The High Court of Chancery is mcontestibly the rwst
dila-
torv, as well as the ?nest expensive: an oppression which his
Majesty's subjects have long laboured under, and universally
complained of; inasmuch, that the interrogatory proverb hatn.
not been more jocularly than pertinently proposed, to such who, •
with more precipitation than precaution, resolved to engage in
Chancery suits : " Will you be hung up six or eight years it;
Chancery ?" implying that his cause may so long depend there,
until his purse and patience are exhausted., his health impared..
and his person (by vexation) emaciated, like a skeleton in the
study of a physician, or an anatomy in thebilice 'of a surgeon r
for the delay of justice is said- to he the denial thereof; litho:
what is not done in due time is not done at all.
Justithe procrastinatio, ejusdem fit abnegatio.'
Our readers will here recognize the topics, and indeed the ,
very expressions, of some late declamation against the -cons
duct of the present Chancellor. They are -well calculated to ex-
cite general indignation; ruin produced by expencesiekne4o'
by anxiety—death by despair • such are the consequences attic
administration of—Lord Eldon ? no, alas !—Lord Chaneelk>r
Hardwicke :int', not Lord Hardwicke, . newly come to
the seals, and not having raised his court to that dagrec
of excellence which it afteriVards -attained, but Lord
flardwicke in the fifteenth year of twhat is now called) his
dynasty,' and when his character was at the very summit of,
its faint *

After the extracts which we have just made, (and we rolg,Dt
have produced double the number of specimens from eveY
reign since Elizabeth,) can our readers recollect with aunt-nor=
patience the attempts made in the years 1823 and 1824 to im-
pute the fault of those delayiand expences to Lord Chancellor
Eldon personally ? To persons well acquainted with our laws
and our history, the refutation which we have thus given of this
calumny may seem superfluous; but we flatter ourselves that
with the world at large some good may be done by ihewing,
that what is norm charged as'the crime of an individual, has
been for two hundred years objected to ALL the greatest and
most eminent persons who have occupied the woolsack during'
the most enlightened days of our history, and the most illus-
trious periods of our law !_

Having thus, beyond all contradiction, shown that the Court.
under other Chancellors has been blamed just as it now is under.
Lord Eldon, we proceed to prove, that the real subject
amazement is, that the latter has been able to do so much—
that be has dispatched so much business—that he hits so little
arrear.

We shall not distract our readers' attention by olving this
part of the subject in the perplexity of Chancery • ads, which
it would take a volume to explain ; nor shall we descend to
squabble about individual cases, on Which no fair judgment
could he formed without knowing minutely, not only all the
facts of the case itself, but the tempers and objects of tit°
parties, and the skill, activity, and honesty of their respective
agents : for on these elements the real delay of individual cases
depends, and the judicious inquirer who overlooks socl►
considerations, will, if he happens to' meet with a windmill,
be sure, like an ancient redresser of grievances, to convert It
into a giant. _ _

( To be continued.

R As grave legislators have condescended to tell an affecting
story, (which even if Lrue could not have assisted the argu-
ment,) of an inferior suitor dying before his cause W3B deter-
mined, we take the liberty of quoting (though we modestly
throw it into a note) a case much more in point, a great deal
more terrific, and, we apprehend, somewhat more true, of a ca-
tastrophe occasioned by the delays and expences of the Court
of Chancery, rather before Lord Eldon's time.
John Batesham, a headstrong litigious man, who had suits
in Chancer 3 depending thirty or forty years, and having been
awarded, by the report of Sir John Tindal, a Master in Chan-
cery, a less suns than lie expected, he, in revenge, by a pistol
loaded with three bullets, blew out Sir John Tindal's brains,
and then hanged himself.'—oldys's Cattalogue of Pamphlets
in Harl. Collection, No. 83.
This tragical occurrence happened in November, 1617, temp.
Lcrd Bacon.