Page images

gency of each occasion. The system of law, a single distracting pleasure. Mr. Twiss's just however applicable to the enjoyment, the de- remark-" that in the station he was eventuscent, and the transfer of real property, though ally called to fill, his want of imagination was despoiled of some of its forms of ancient dig- one of his advantages; for the judgment, the nity, and debased by limitations of time, which, highest of the intellectual powers, and in pubhowever generally convenient, sometimes pro-lic affairs worth all the rest, was thus left to tect the grossest injustice-making kindness exercise undivided and undisturbed its empire work a sort of disseisin, and arming ingrati- in his mind and its influence in the counsels tude with power-is even still an extraordinary of his sovereign," is equally applicable to the scheme of ingenious architecture, reducing the early triumphs of his professional career. His vestiges of feudal barbarism to consistent form, powers were all massed together, and moved and extracting from the usages of violence and by a single impulse, and did not jostle or intyranny the securities of social rights. The terfere with each other's influence. In every system of equity too, not a capricious relaxa- suit in which he was counsel at the bar, in tion of the strict rules of law, but having a every struggle of political controversy, or in sisterly entireness of its own, little disturbed the tenor of his private life, he saw his object as yet by the busy hand of tumultuous legis- clearly before him; and toiled upward to reallation, retains a kindred if not an equal claim ize it with undivided strength by the straightfor a mind braced for laborious study. To est, though often the most arduous pathsthe perfect mastery of these systems, with some joke, innocent of wit or fancy alone rethe more miscellaneous complexities of com- lieving its patient sternness. mercial law, Lord Eldon on quitting Oxford devoted his powers, admirably fitted for the work by all they included, and scarcely less by all they wanted; and the consequence was slow, gradual, and complete success in his profession-secured before he added to his toils the anxieties of political life-and calmly and steadily grasped as his first object amidst


Thus constituted by nature of masculine understanding-beyond the common order rather in its grasp than in its essence-destined to move altogether when it moved at all,' Lord Eldon was fortunate in a kindred simplicity of religious and political creed. The effect of his early lessons in the old-fashioned school at Newcastle was to implant in a strong and simple mind a sense of the reality of reliThe great element of Lord Eldon's success, gious truths, as imbodied in the formularies both in legal and political life, was the re- of the Church of England, which admitted of markable simplicity which characterized his no more question than if it was the object of moral nature, his intellect, his opinions, and corporal vision. In his defence, therefore, of his purposes. Even his prodigious industry, that which was part of his own being, he felt which seemed to rejoice in the accumulation no scruple; no airy speculations disturbed the of toils on those which would stupify men who repose of his settled thought; to protect the are accounted laborious, was a subordinate Church against Romanism on the one side, power to this singleness of being and aim. and Dissent on the other-regardless of the If he ever cherished tastes which might dazzle expediencies of the times, or deriving new or distract him in his stubborn career, he soon strength of opposition from them-became to crushed them beneath the weight of his studies. him through life a natural if not an easy office. Once, indeed, when a young member of the He at least "knew his course." In like manHouse of Commons, he attempted an elaborate ner, his attachment to the order of things in speech on the third reading of the India Bill, the State, as he found it, was scarcely less garnished with Shakspearian quotations vio-hearted—with him it was not a matter of lently applied, and scraps of Latin and texts reasoning, but of fact, so distinctly perceived, of Scripture let into the mosaic-work of his that he regarded the brilliant defence of the incomposition, with strange contrast of colour-stitutions he loved by the eloquence and wit having resolved, with characteristic boldness, of Canning with uneasiness, as if unquestionto rival Sheridan; but the House listened with astonishment to the wilful extravagance of the hard-headed lawyer; and he never repeated the error. Encouraged by the intellectual successes which his industry won in more congenial studies, he thought perhaps that he had only to apply the same labour to the department of wit and eloquence, in order to obtain a similar victory-as an eminent special pleader whom we had the happiness to know, rejoicing in the ease with which he produced works of extraordinary practical merit by distributing the labour of filling up his own masterly outlines among his pupils, once gravely proposed to manufacture novels and plays by a similar process. After this failure-which does not seem to have impaired his character with the House for sterling sense and comprehensive legal knowledge-he resolutely abstained from all attempts to adorn his natural plainness of speaking, or to relieve his toil by

able truths were lowered in dignity by being protected by the dazzling fence of genius. When, therefore, his tendency to doubt and hesitate in the decision of those complicated questions of fact and equity which depended for adjudication on his individual view of their bearings, is invidiously contrasted with his prompt resistance to all extensive innovations, it should be recollected that his attachment to the institutions of England, as he first knew them, was one of the laws of his moral and intellectual nature;-it might be narrow, bigoted, inconvenient; incapable of gracefully bending to the necessities of the times; but still it was part of his true self: an attack on Church and State was to him the same thing as a violation of his paternal roof or an insult to a domestic affection. The same simplicity of nature, wiser than the most cunning policy, rendered him a greater, or rather a dearer favourite in the closet of the Sovereign than many who have

striven to maintain an ascendency by the appliances of servility or the arts of flattery. In George III. he found a master with a nature congenial to his own; and devoted himself with his whole heart to him, in the true spirit of Shakspeare's servant" of the antique world." The qualities in his Royal Master which, beyond his station, attracted and justified this strong attachment, have never been so fairly developed as in the disclosures made and verified by Mr. Twiss, who shows the King as sustained in maintaining his resistance to revolutionary associations and movements, not merely by a regal obstinacy and undaunted courage, but by a depth of sentiment and earnest belief in principles, to which even those who have been most disposed to admire the resolution and to bless the issue have not always done justice. His Chancellor's conduct towards him, amidst those oscillations of reason which made him feel the need of a true friend, well requited his affection. Lord Eldon, by personal interviews with the King, became convinced that he was competent to discharge the functions of royalty; and, therefore, instead of encouraging measures which might induce the malady they assumed, he took on himself the responsibility of treating him as competent, when his own wavering might have been destructive. Surely there is no inconsistency between a sudden decision in such a case of feeling and conduct, and long hesitation on the result of a mass of facts, or of nice legal analogies, determining the earthly fate of a family, and affording a precedent for the administration of justice in similar cases for future times!

construction of law. Mr. Peel, when Secretary for the Home Department, in one of the debates on the imputed delays of the Lord Chancellor's Court, thus bore testimony to this exemplary caution in sanctioning the infliction of capital punishment :—

"It had fallen," he said, "to his lot to send to the Lord Chancellor at the rising of his court, to inform him that on the ensuing morning his majesty would receive the recorder's report, containing probably forty or fifty cases. On proceeding from his Court of Chancery, the noble and learned Lord would, as was his uniform practice on such occasions, apply himself to the reading of every individual case, and abstract notes from all of them; and he had known more than one instance in which he had commenced this labour in the evening, and had been found pursuing it at the rising of the next sun. Thus, after having spent several hours in the Court of Chancery, he often employed twelve or fourteen more in the consideration of cases which involved the life or death of unhappy culprits."

One remarkable instance, in which his doubts-more valuable often than the certainties of ordinary minds-stood between a convict and death, notwithstanding the unfavourable opinion of a majority of the judges, may here be selected from a long catalogue. Mr. Aslett, after many years' service as second cashier of the Bank of England under Mr. Abraham Newland, was tempted to supply the deficiency of large speculations in stock by misappropriating an immense amount of the Exchequer bills which the bank held, and which were committed to his care. On detection, he was indicted for the capital felony of embezzling Exchequer bills, the property of the Bank of England: but when his fate seemed sealed beyond the reach of hope, it was discovered that the auditor, whose signature was necessary, by statute, to authenticate Exchequer bills, had not been regularly appointed to his office; and though an act of Parliament was passed to render the documents he had

Although Lord Eldon strenuously resisted all important changes in the law, he was earnestly devoted to its liberal administration, without regard to persons or consequences. "The quality" of justice was with him as little "strained" as that of mercy. In deciding on the charges to be preferred against the parties accused of treason for their share in the English combination of 1794, he manifested a nobleness of determination, beyond the sug-signed valid as between the government and gestions of expediency, as, in the conduct of the holders, that retrospective authentication the prosecutions, he maintained a courtesy of did not justify the description of the embezzled demeanor which won the respect of his most papers in the proceedings against the prisoner ardent opponents. He believed the offence to as Exchequer bills. On this objection, Mr. Aslett be treason; and although a conviction for that was acquitted, but was detained to meet the crime was more than doubtful, while a convic- charge in another form-that of misapplying tion for seditious conspiracy might have been "effects and securities" of the bank-on which regarded as almost certain, he rejected the he was convicted, and upon which a majority safer and the baser course, and acted on the of the twelve judges held him amenable to the severe judgment of his reason. The analysis extreme sentence of the law. The Lord Chanof these trials by Mr. Twiss-one of the most cellor's mind, however, was not satisfied that masterly and striking passages of his work- these irregular documents could, in a case of while it may leave the prudence of the At- life, be strictly holden even to justify this more torney-General open to question, must satisfy general description: Mr. Aslett therefore esevery impartial mind of the elevation of the caped death; and after suffering many years' motive by which he was impelled. While he imprisonment in the State apartments of Newdreaded any relaxation of the criminal law-gate, with this sentence hanging over him, but as if all its old "terrors to evil-doers" would vanish in air if its most awful penalty were removed from crimes against which it had long been threatened-he endured the most anxious labour to prevent its falling on an innocent sufferer, or one who, however guilty, was not subjected to its infliction by the plainest

not unsolaced by social and even festive reliefs, was pardoned on condition of quitting his country for ever.

In the comprehensiveness and accuracy of his legal knowledge, Lord Eldon was perhaps the greatest of all English lawyers-certainly exceeded by no one of any age. If it is re

membered how greatly, even in his time, the mass of statutes and decisions had expanded from the days of Lord Coke-how the provinces of common law and equity had assumed a systematic distinctness-and how easy of application his knowledge was to each of them in turn, and also to every branch of Scottish law which arose before him on appeal—it will be scarcely possible adequately to conceive the aptitude for study and the power of continuous labour which he must have exercised in the few years which elapsed before his time was engrossed by an enormous practice, which must have rendered systematic study impossible. After years spent in the Court of Chancery-exclusively engaged in equity, with the exception of the superficial varieties of his circuits, and the arduous duties of his great offices in state prosecutions-he assumed the functions of Lord Chief Justice of the Court of Common Pleas with as much ease, and performed them with as perfect a mastery over all subjects, as though his life had been spent in the practice of the common law; and indeed manifested a promptitude and vigour, which he was so often accused of wanting when called upon solely and almost finally to decide on the fortunes of suitors in the Court of Chancery. One passing allusion to his having just come from a court of equity, by way of apology for quoting a decision in that court, is the only circumstance throughout his judgments, reported by Bosanquet and Puller in the second volume of their reports, which could lead to the suspicion that he had ever practised on the other side of Westminster Hall. In subtlety of apprehension, indeed, he is exceeded by Littledale; in ingenious appli cation of legal analogies, by Holroyd; in lucid purity of expression, by Lord Chief Justice Tindal and Lord Lyndhurst; but in extent of knowledge and the facility of its application, he is exceeded by no judge of whom we have either experience or memorial. It is true that his style is heavy and involved—that the principles of law and the circumstances of fact are sometimes blended in his judgments so as to appear confused-but the matter is always there which not only justifies the particular decision, but supplies the rule for time to come. So far was he from shrinking from the development of principle, that in the only case which, while he was Chief Justice, was sent from the Court of Chancery for the opinion of the Court of Common Pleas,* he deviated from the usual practice of merely certifying the opinion of the Court to the Chancellor, and delivered a long exposition of the principles involved in the question-what words in a devise will pass leaseholds-discussing all the numerous authorities, and reconciling them to each other and to an intelligible rule. In this case, with a noble zeal for the fame of a deceased lawyer, he manifests that vigour of mind which was never perplexed except by the fear of doing injustice. Referring to some reported expressions of Lord Northington, impeaching without overruling the old case of

Thompson v. Lady Lawley, 2 Bos. and Pul. 303.

"Rose v. Bartlett," he refused to believe that they had been used.

"We all know," said he, " that Lord Northington was possessed of great law-learning. and a very manly mind; and I cannot but think that he would rather have denied the rule altogether than have set it afloat by treating it with a degree of scorn, and by introducing distinctions calculated to disturb the judgments of his predecessors and remove the landmarks of the law."

As Lord Eldon spoke of Lord Northington, so would he be spoken of himself. He too had a "manly mind"-firm in principle, apprehensive and slow in its application—deliberating sometimes to the injury of individuals, but maintaining the majesty of justice by the fear of precipitate decision—and (notwithstanding the complaints annually made of him in the House of Commons because he pondered long before he pronounced judgments which would decide the destiny of a suitor, and did not achieve impossibilities) over-mastering a world of labour which almost makes the mind dizzy in its contemplation. Nothing, indeed, could have enabled him to endure such labour but his undoubting faith in the great principles of his life-that kindness of nature which charms away animosities by its unaffected courtesy-and which, amidst the distractions of party, and the "fears of change perplexing nations," enabled him to preserve an exalted position in the minds of friends and opponents

"An ever-fixed mark, Which look'd on tempests and was never shaken."

With a gentler devotion to legal studies, but with accomplishments felicitously harmonizing with them, Lord Stowell nearly kept pace, step by step, with the promotion of his younger brother. His residence at Oxford for eighteen years-a period of collegiate seclusion unexampled in the life of a successful lawyerprepared him to look on the varieties of human life and character which passed before him during the ensuing half century of professional labour, through a softening medium. Selecting for the scene of his practice the cloistered courts in Doctors' Commons, he avoided both the dazzling hurry of Nisi Prius advocacy, and those tremendous labours of the equity student which are scarcely enlivened by the arguments of the open Court of Chancery. But although the scene of his exertions was quiet and sequestered, his competitors few, and the discussions conducted with a sort of academical amenity, the subjects which, as advocate and as judge, he examined and adorned, spread widely throughout society: on the one hand, extending through the gravest considerations of international law to the horizon of the civilized world; and on the other, affecting those domestic relations in which delicate subtleties of passion and temper influence the most important of human rights and duties, and, above all the changes of fortune, tend to make life wretched or happy. In the dingy recesses of Doctors' Commons, th hopes and fears, the frailties, the passions, the loves, the charities of many lives were dis

cerned in ever-shifting variety-as in a camera tion in saying, that they ought to do so in every obscura-and never were they refined by such country of the civilized world." elegance as when touched by Lord Stowell. Of his efforts during his period of advocacy, when his evenings were enjoyed in the brilliant society of which Dr. Johnson was the centre, the world knows little; but his judgments during the years when he presided over the High Court of Admiralty and the Consistory Court, exhibiting all the aspects of each case, enable us to guess at the dexterity with which he presented the favourable views of the causes committed to his charge, and the beauty with which he graced them.

Of Lord Stowell's decisions the following character is given by Mr. Twiss in language worthy of the subject:

But the more popular judicial essays of Lord Stowell-for so his judgments may be not improperly regarded-are those pronounced in the Consistory Court in questions of divorce, restitution of conjugal rights, and nullity of marriage. Partaking more of the tone of a mediator than a censor, they are models of practical wisdom for domestic use. The judgment in the case of Evans v. Evansa suit, by a lady, for divorce by reason of cruelty-presents a beautiful example of his enunciation of wise and just principles, of his skill in extracting from the exaggerations of passion and interest the essential truth, and of the amenity and grace with which he could soften his refusal to comply with a lady's prayer. Thus he lays down the rule which should govern such unfortunate appeals:

"Lord Stowell had the good fortune to live in an age of which the events and circumstances were peculiarly qualified to exercise and exhibit the high faculties of his mind. The greatest maritime questions which had ever presented themselves for adjudicationquestions involving all the most important points both in the rights of belligerents and in those of neutrals-arose in his time out of that great war in which England became the sole occupant of the sea, and held at her girdle the keys of all the harbours upon the globe. Of these questions, most of them of first impression, a large portion could be determined only by a long and cautious process of reference to principle and induction from analogy. The genius of Lord Stowell, at once profoundings, much less the first feelings of an individual. and expansive, vigorous and acute, impartial and decisive, penetrated, marshalled, and mastered all the difficulties of these complex inquiries; till, having "sounded all their depths and shoals," he framed and laid down that great comprehensive chart of maritime law which has become the rule of his successors "To vindicate the policy of the law is no and the admiration of the world. What he necessary part of the office of a judge; but, if thus achieved in the wide field of international it were, it would not be difficult to show that jurisprudence, he accomplished also with equal the law, in this respect, has acted with its success in the narrower spheres of ecclesias-usual wisdom and humanity-with that true tical, matrimonial, and testamentary law. And wisdom and that real humanity that regards though, where so many higher excellencies the general interests of mankind. For though, stand forth, that of style may seem comparatively immaterial, it is impossible not to notice that scholar-like finish of his judicial compositions, by which they delight the taste of the critic, as by their learning and their logic they satisfy the understanding of the lawyer."Life of Lord Eldon, vol. iii. pp. 255–6.

"The humanity of the court has been loudly and repeatedly invoked. Humanity is the second virtue of courts, but undoubtedly the first is justice. If it were a question of humanity simply, and of humanity which confined its views merely to the happiness of the present parties, it would be a question easily de-` cided upon first impressions. Everybody must feel a wish to sever those who wish to live separate from each other, who cannot live together with any degree of harmony, and consequently with any degree of happiness; but my situation does not allow me to indulge the feel

The perspicuity of Lord Stowell's judgments in the Admiralty Court obtained for them not only the respect, but the reluctant accordance of the foreign powers who were most interested in impugning them. Having sent a copy of some of them, privately printed, to the Admiralty Judge of the United States, he received the following remarkable answer :

[ocr errors]

In the excitement caused by the hostilities raging between our countries, I frequently impugned your judgments, and considered them as severe and partial; but, on a calm review of your decisions, after a lapse of years, I am bound to confess my entire conviction both of their accuracy and equity. I have taken care that they shall form the basis of the maritime law of the United States, and I have no hesita

The law has said that married persons shall not be legally separated upon the mere disinclination of one or both to cohabit together. The disinclination must be founded upon reasons which the law approves, and it is my duty to see whether these reasons exist in the present case.

in particular cases, the repugnance of the law to dissolve the obligations of matrimonial cohabitation may operate with great severity upon individuals, yet it must be carefully remembered that the general happiness of the married life is secured by its indissolubility. When people understand that they must live together, except for a very few reasons known to the law, they learn to soften, by mutual accommodation, that yoke which they know they cannot shake off: they become good husbands and good wives from the necessity of remaining husbands and wives-for necessity is a powerful master in teaching the duties which it imposes. If it were once understood that, upon mutual disgust, married persons might be legally separated, many couples who now pass through the world with mutual comfort, with attention to their common offspring, and to the moral order of civil society, might have been at this moment living in a state of mutual unkindness-in a state of estrangement

*1 Haggard, 35.

from their common offspring-and in a state | churchyard at the usual fees, when his last of the most licentious and unreserved immo- earthly mansion was composed of materials rality. In this case, as in many others, the so durable as to resist for an unusual number happiness of some individuals must be sacri- of years that decomposition which might enaficed to the greater and more general good." ble the narrow space to receive a due succesWe wish we could follow the famous civi- sion of occupiers. This subject, so shocking lian through all the delicate windings of this in some of its attendant details, so mortifying 'pretty quarrel" between Mr. and Mrs. Evans; to human pride in some of its aspects, bethe masterly analysis of the waiting-woman's comes in his hands suggestive of solemn but motives; the elegant etiquette of the lying-in gentle disquisition on the essence of the sentichamber; the prerogatives of the nurse, and ment which requires the reverent disposal of fantastical distresses of the mistress-and give the dead, and on the forms through which, in some specimens of Sir William Scott's gayer various nations and times, it has been breathed. style. But the embroidery of each case is so From the simplicity of patriarchal days, through equally woven, the effect so much depends the splendid varieties of that affected duration upon harmony of colour and exact proportion; at which the Egyptian monarchs aimed, down the sly humour is so nicely, and almost im- to the humble necessities of a pauper funeral perceptibly, mingled with the worldly wisdom, and brief sojourn of the untitled 'dead in a that it would be unjust to tear away fragments domicile of their own, before being associated and exhibit them as specimens. If there is a directly with dust, he discourses-"turning all fault it lies in a tendency to attenuation of the to favour," if not to "prettiness," and giving a matter in sentences vital interest to ashes and the urn. In his researches he delights to measure stately wit the grave, Sir Thomas Browne; and though with that prodigious master in the empire of he falls far short of the embossed grandeur of stands alone for fantastic solemnity in English the sepulchral essay on "Urn-Burial," which prose, he diffuses a gentle atmosphere over the poor-crowded cemetery, and regulates the cerewith the same Grandisonian air with which he monies and gradations in the world of death had adjusted the contests of the fair and innocent and frail among the living. After discussing the modes of sepulture, and vindicating the authority of his court to arrange the differences, he thus sums up the matter in immediate dispute:

"With linked sweetness long drawn out;"

and yet it would be difficult to find a word we would change, or a sentence we would spare. Although the refinement of expression is almost undisturbed, the sense is always manly nothing affected, sickly, or sentimental-but common sense arrayed in the garb of fancy. The vivid exhibition of scenes in domestic life; the opposition of motives and passions; all invested with a certain air from the rank in society of the suitors, (for the poor rarely indulge in the luxuries of the Consistory Court,) reminds us more of the style of comedy which was fading from the stage before Sir William Scott retired from the bench, and which his dramatic tastes particularly fitted him to appreciate. He must have been indignant, even when Garrick performed Archer, at the impudent usurpation by the hero of the Beau's Stratagem of the civilian's office, when he sets up a rival court of his own for the dissolution of unhappy partnerships for life, audaciously declares

"Consent, if mutual, saves the lawyer's fee;" and consequently destroys the Judge's function. In each of his best civic developments, the curtain seems lifted on an elegant drama of manners: husbands and wives quarrel and recriminate in dialogue almost as graceful as Sheridan's; youths of fortune become the appropriate prey of rustic lasses, in spite of obdurate fathers; and a good moral, better enforced than most stage conclusions, dismisses the parties and charms the audience. He once said he could furnish a series of stories from the annals of Doctors' Commons which should rival the Waverley Novels in interest; and we wish he had tried it!

In Lord Stowell's latter days a cause came before him which afforded a strong contrast to the vivacity of those nuptial and connubial contests which had glowed and sparkled and loured so often before him; and if dull in the progress, grew beautiful in the judgment. It involved a question between the church wardens of the parish of St. Andrew, Holborn, and the patentee of iron coffins, on the right of a parishioner to burial in the crowded

in holding this opinion upon the fact of a com"It being assumed that the court is justified parative duration; the pretensions of these coffins to an admission upon the same pecuniary terms as those of wood, must resort to difference of duration ought to produce no difthe other proposition, which declares that the ference in those terms. Accordingly, it has been argued that the ground once given to the body is appropriated to it for ever-it is literally in mortmain unalienably-—it is not only the domus ultima, but the domus æterna of that tenant, who is never to be disturbed, be his condition what it may-the introduction of another body into that lodgment at any time, however distant, is an unwarrantable intrusion. If these positions be true, it certainly follows that the question of comparative duration sinks into utter insignificance.

"In support of them, it seems to be assumed that the tenant himself is imperishable; for surely there can be no inextinguishable title, no perpetuity of possession, belonging to a subject which itself is perishable-but the fact is, that 'man,' and 'for ever,' are terms quite incompatible in any state of his existence, dead or living, in this world. The time must come when 'ipse periere ruina,' when the posthumous remains must mingle with and compose a part of that soil in which they have been deposited. Precious embalments and costly monuments may preserve for a long time the remains of those who have filled the

« PreviousContinue »