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PAPER VIII.: INDICATIONS RESPECTING LORD ELDON, INCLUDING HISTORY OF THE PENDING JUDGES’-SALARY-RAISING MEASURE. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 5.
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INDICATIONS RESPECTING LORD ELDON,
originally published in 1825.
FACTS SUSPECTED.* SUBJECTS OF INQUIRY FOR THE HOUSE OF COMMONS.
Respecting Lord Eldon, certain suspicions have arisen. The object of these pages is—to cause inquiry to be made, if possible, by the competent authority, whether there be any ground—and if yes, what—for these suspicions.
In general terms, they may be thus expressed:—
1. That, finding the practice of the court of Chancery replete with fraud and extortion, Lord Eldon, on or soon after his coming into office as chancellor, formed and began to execute a plan for the screwing it up, for his own benefit, to the highest possible pitch; to wit, by assuming and exercising a power of taxation, and for that purpose setting his own authority above that of parliament; which plan he has all along steadily pursued; and, if not, the present Judges’ Salary-raising Measure, 69, anno 1822, a late act, to wit, the 3d Geo. IV. cap. 6, is the consummation of it.
2. That, it being necessary that, for this purpose, the other Westminster Hall chiefs should be let into a participation of such sinister profit—to wit, as well for the better assurance of their support, as because the power of appointing to those offices being virtually in his hands, whatever is profit to them is so to him—the means employed by him tended to that effect also, and have been followed by it.
In relation to the whole scheme, conception may perhaps receive help, from a glance, in this place, at the titles of the ensuing sections. Here they are:—
§ 2. Under Lord Eldon, equity an instrument of fraud and extortion—samples of it.
§ 3. Anno 1807.—Order by Chancellor and Master of the Rolls, augmenting the fees of offices in the gift of one of them.
§ 4. Profit to subordinates was profit to principals: so, in course, to successors.
§ 5. Contrary to law was this order.
§ 6. By it, increase and sanction were given to extortion.
§ 7. So, to corruption.
§ 8. How Lord Eldon pronounced the exaction contrary to law, all the while continuing it.
§ 9. How the Chancellor had laid the ground for the more effectual corruption of himself and the other chiefs (anno 1801).
§ 10. How the project was stopped by a solicitor, till set a-going again, as per § 3.
§ 11. How the other chiefs were corrupted accordingly.
§ 12. How the illegality got wind, and how Felix trembled.
§ 13. How the Chancellor went to parliament, and got the corruption established.
§ 14. How the Head of the Law, seeing swindling at work, stept in and took his profit out of it.
§ 15. How King George’s judges improved upon the precedent set by King Charles’s in the case of ship-money.
§ 16. How to be consistent, and complete the application of the self-paying principle.
§ 17. How Lord Eldon planned and established, by act of parliament, a joint stock company, composed of Westminster Hall chiefs, and other dishonest men of all classes.
§ 18. How the King’s Chancellor exercised a dispensing power.
§ 19. Character evidence.
UNDER LORD ELDON, EQUITY AN INSTRUMENT OF FRAUD AND EXTORTION. SAMPLES:—
A single sample will serve to show in what state Lord Eldon found this branch of practice, and that it stood not in much need of improvement at his hands: by a few more which follow, a faint, yet for this purpose a sufficient idea, will be given of the improvement it has actually received under his care.
By the command of a father, I entered into the profession, and, in the year 1772 or thereabouts, was called to the bar. Not long after, having drawn a bill in equity, I had to defend it against exceptions before a Master in Chancery. “We shall have to attend on such a day,” (said the solicitor to me, naming a day a week or more distant;) “warrants for our attendance will be taken out for two intervening days, but it is not customary to attend before the third.” What I learnt afterwards was—that though no attendance more than one was ever bestowed, three were on every occasion regularly charged for; for each of the two falsely pretended attendances, the client being, by the solicitor, charged with a fee for himself, as also with a fee of 6s. 8d. paid by him to the Master: the consequence was—that for every actual attendance, the Master, instead of 6s. 8d., received £1, and that, even if inclined, no solicitor durst omit taking out the three warrants instead of one, for fear of the not-to-be-hazarded displeasure of that subordinate judge and his superiors. True it is, the solicitor is not under any obligation thus to charge his client for work not done. He is however sure of indemnity in doing so: it is accordingly done of course. Thus exquisitely cemented is the union of sinister interests.* So far as regards attendances of the functionaries here mentioned, thus is the expense tripled; so, for the sake of the profit on the expense, the delay likewise. And I have been assured by professional men now in practice, that on no occasion, for no purpose, is any Master’s attendance ever obtained without taking out three warrants at the least.
So much for the state of the practice before Lord Eldon’s first chancellorship: now for the state of it under his Lordship’s auspices.
Within the course of this current year, disclosures have been made in various pamphlets. One of the most instructive is the one entitled “A Letter to Samuel Compton Cox, Esq. one of the Masters of the Court of Chancery, respecting the Practice of that court, with suggestions for its alteration. By a Barrister. London, 1824.” Extracted from it are the following alleged samples: samples of the improvements made in the arts and sciences of fraud and extortion, by Masters in Chancery and others, under the noble and learned lord’s so assiduously fostering and protecting care.
I. In regard to attendances on and by Masters, money exacted by them as above, when no such services are performed.
P. 12. “The issuing of warrants is another subject which requires consideration. These are issued frequently upon states of facts, abstracts of titles, charges and discharges, &c. not according to the time consumed in going through the business before the Master, or his clerk,* but according to the length of the statement. The clerk takes it for granted, that the investigation of a state of facts of a given length may be expected to occupy a given number of hours. The solicitor, therefore, in drawing such his bill of costs, after the statement has been gone through, leaves a blank for the number of warrants “to proceed on the state of facts.” The Master’s clerk fills up the blank, by inserting such a number as might, if there had been much contention between the different parties, have by possibility been issued. Thus, where two or three are all that, in fact, have been taken out, ten or fifteen are charged and allowed. The solicitor produces those he has actually received in the course of the business, and the clerk delivers to him so many more as are necessary to make up the requisite number.†
P. 12. “A similar process takes place with respect to the report. If the charge for the warrants alone were all that was to be complained of, the mischief would not be so great. But you are aware, sir,‡ that an attendance on each of these warrants is charged for and allowed, and that frequently by several different solicitors,∥ so that the expense to the suitors is grievously increased.”
II.Of the sinister profit made by the solicitor, the greater part has for its cause the rapacity of the Master, supported by the Chancellor.
P. 9. “Copies of proceedings of all sorts, of states of facts, of affidavits, of reports, of every paper in short which is brought into the office, are multiplied without the least necessity; and, in many instances, are charged for, though never made. For instance, in an amicable suit, where the only object is to obtain the opinion of the court on some doubtful point, and the Master’s report is previously necessary to ascertain the facts of the case clearly, each solicitor concerned is required, in most instances, to take, or at least to pay for, a copy of the state of facts carried in, of the affidavits in support of it, and of the draft of the report; and in the event of his not taking these copies, he is not allowed to charge for any of his attendances in the Master’s office.”
P. 10. “The draft of the report is kept, with the other papers relating to the suit, in the Master’s office; and to such a length is the system of charging for copies carried, that in amicable suits it not unfrequently happens, I believe, that no copy whatever of the draft-report is made, but the solicitor merely looks over the original draft in the Master’s office. Yet, even in this case, two or more copies will be charged for* as made for the plaintiff and defendants.” pp. 10, 11.
III.How, by breach of duty as to attendance on the part of Masters and their clerks, delay and expense are manufactured by them, and profit out of it, over and above what is exacted by them on mendacious grounds, as above.
P. 15. “The Masters seldom, I believe, make their appearance in Southampton-buildings before eleven, and are mostly to be seen on their way home by three o’clock at the latest.”
P. 16. “Another evil is that of issuing warrants to different parties to attend at the same hour.”
“With some exceptions,” says another pamphlet, with a high and responsible name to it, p. 32, “I find a general understanding prevails, that the earliest appointment for a Master must be eleven, and the latest at two o’clock.” Consequence—warrant sent for; frequent answer—‘Master full for a week.’ Page 31—‘Court sits from ten to four.’ So far the authority. Court, sitting as yet in public, cannot convert itself into a sinecurist: this accommodation it cannot afford to any but its feudatories, who, so long as they act, the shorter the proportion of time in a day they sit on each cause, have the greater number of attendances to be paid for.
The attendance styled the Master’s, is, after all, in many instances, only the Clerk’s: so that it may be matter of calculation at the end of what period, under the cherishing care of Lord Eldon, all masterships may have ripened into sinecures, and thus completed the course completed already by the six-clerkships. Per pamphlet, entitled Rewards, &c. page 49, of which presently. Average emolument of one of the Master’s clerks, in 1822, 1823, and 1824, £2300 a-year.
IV. Strict community of sinister interest between the judicial and professional lawyers; the judicial principals, the professional, forced accomplices.
P. 13. “Their bills will be less rigidly examined. Under these circumstances, it is not the interest of a solicitor to quarrel with the Master’s clerk.”* Both are alike gainers by the existing system.—P. 14. “In cases where the costs come out of a fund in court, much less strictness is likely to prevail. If the plaintiff’s solicitor be allowed for attendances on more warrants than are actually taken out during the progress of the business, a similar allowance must be made to the defendant’s solicitor. But even if it were both the interest and the inclination of the solicitor to amend this practice, it is not in his power so to do. He might indeed amend it so far as his own charges go, but no farther. Over those of the Master’s clerks he has no controul; and he is moreover at the mercy of the clerk. If he quarrels with the clerk, he must expect to be thwarted and delayed in every suit which comes into that office, and to have his bills rigorously taxed. The master’s clerk, with the assistance of a clerk in court, taxes the solicitor’s bill; but there is nobody to tax the Master’s bill.”
V. Corruption and extortion, by bribes given to and received by Master’s clerks, in addition to the sinister profit, carried as above to the account of the Master.
P. 13. “The gratuities at present allowed to the Master’s clerks ought to be done away with altogether . . . . Solicitors who are in the habit of giving large gratuities to the clerks, will at any rate be looked upon favourably. Their business will be readily attended to, and oftentimes to the delay of others, who, in strictness, are entitled to priority.”
VI. Anno 1814, Lord Eldon’s eyes, forced to open themselves to fraud and extortion in one portentously scandalous instance, kept shut in all other instances, before and since.
P. 11. “With regard to copies of particulars of sale, where an estate is sold in the Master’s office, a material alteration has of late years been made. To such a height had these charges amounted, that in one instance (Casamajor v. Strode) £700 were claimed for compensation-money, in lieu of written copies of particulars of sale. In consequence of that charge, the general order of 24th March 1814 was made, by which the Master is allowed sixpence a side for so many printed copies of the particulars as there are actual bidders, and no more. There seems no good reason for making even this allowance. It would be fair enough, if the Masters are to continue to be paid by fees, to allow the expense of copying the particular for the printer, and even a fee, if thought necessary, for settling it; but beyond that, as there is no actual trouble, there should be no charge on the suitor.” p. 12.
Of the particulars above given, a general confirmation may be deduced from the contents of the (I now see) named, but not promiscuously published pamphlet, above alluded to—Mr. Vizard’s.
What is above is a small sample of that which is said to have place. Of what follows in sections 4, 8, and 9, the design is—to show how that which has place came, and comes, to have place.
ANNO 1807.—ORDER BY CHANCELLOR AND MASTER OF THE ROLLS, AUGMENTING THE FEES OF OFFICES IN THE GIFT OF ONE OF THEM.
It consists of a printed pamphlet of 25 pages, bearing in the title-page the words following:—
“List of Costs in Chancery, regarding Solicitors, and also Clerks in Court, as increased by orders of Court, dated 26th February last; issued under the joint signatures of the Right Honourable the Lord Chancellor, and Master of the Rolls: being exact copies of those Orders. The same having been collated with the original Lists of the Court.
“London: printed for Heraud and Co., law stationers, Carey Street, corner of Bell Yard, by J. & W. Smith, King Street, Seven Dials, 1807.”
In the preamble to that part which regards the “clerks in court fees,” the order speaks of itself as establishing “a schedule of—increased fees.” Thereupon follows the schedule, and the number of the fees is forty-three.
Anno 1814. In pursuance of certain orders of the House of Commons, returns were made, amongst other chancery offices, from that of the Six-clerks, and another from that of the sworn and waiting clerks. These are comprised in pages 5, 6, 7, 8, of a paper entitled “Fees in Courts of Justice.” Dates of order for printing, 13th May and 11th July 1814. Nos. 234 and 250.
In the return relative to the sworn clerks, are reprinted the contents of the pamphlet above mentioned.
PROFIT TO SUBORDINATES WAS PROFIT TO SUPERIORS; SO, IN COURSE, TO SUCCESSORS.
Here begins the proof of the fact—that a twopenny loaf costs twopence: in Honourable and Right Honourable House, the proof will be insufficient; in any other, unless it were a right honourable one, it would be superfluous: for information, yes: but for reminiscence, it may have its use.
I. Wherever an office has any money value so has the patronage of it. By the patronage, understand the power of determining the individuals by whom, together, or one after another, it shall be possessed;—the whole power, or any share in it.
Take any office singly, compared with the value of the possession, that of the patronage may be less or greater. It is most commonly less; but it may be many times greater. Patron (say) a father near the grave; son, in early youth: value of the office if occupied by the father, not one year’s purchase; if by the son, a dozen years or more.
Present income of a Six-clerkship, about £1000 a-year: so stated to me by gentlemen belonging to the office. It is regarded as a sinecure;—patron, the Master of the Rolls. One of these judges was Sir Thomas Sewell: children, numerous. No further provision for this one, without injustice to others. Suppose it sold, what would it have been worth to him? Not a fifth of what it was by being given. £2000 the price usually got by patron. So at least said by gentlemen belonging to the office. This for the information of Mr. Robinson—the Mr. Robinson who, as far as I understand hitherto, to secure purity, interdicts sale, leaving gift as he found it.
Say patron and grandpatron, as you say son and grandson. Grand patronage is not so valuable as patronage, True: nor yet valueless. In the King’s Bench, is an office called the clerkship of the rules. Annual value, as per finance reports, 1797-8, £2767. Nominal joint patrons in those days, Earl of Stormont and Mr. Way; grandpatron, Earl of Mansfield, Lord Chief-Justice. Trustee for the Lord Chief-Justice, said Earl of Stormont and Mr Way: price paid £7000:—circumstances led me to the knowledge of it. But for grandpatron’s cowardice that cowardice which is matter of history) more might have been got for it. That or thereabouts was got for it a second time.
Would you know the money value of an office, exclusive of the emolument in possession? To the aggregate value of the patronage belonging to it, add that of the grandpatronage. Nor is that of great-grandpatronage nothing. Wherever you can see a grandpatron other than the king, seeing the king, you see a great-grandpatron.
A Mastership was a fortune to a daughter of Lord Erskine. Had he held the seals long enough, a Six-clerkship might have been a provision for a son, supposing the matter settled with Sir William Grant, who had no issue.
If either patronage, grandpatronage, or great-grandpatronage of the office are valueless, so is the possession of it.
In case of abuse, profit to individuals is one thing; mischief to the public, another. Profit from fee-gathering offices may be made either by sale or by gift. When by sale, small is the mischief in comparison of what it is when by gift. But this belongs to another head.
Neither by the Chancellor, nor by the Master of the Rolls (it may be said) are nominated any of the officers to whose fees the order gives increase. True: nor by this is the additional value, given by it to the patronage, lessened. Along with the values of the sworn-clerkship and the waiting-clerkship, rises that of the six-clerkship. Tenpence per folio is paid to sworn and waiting clerks; tenpence per ninety words, called a folio, for copies taken by them: out of each such tenpence, the six clerks, for doing nothing, receive four-pence. This is all they receive: an all which to some eyes may not appear much too little.
The measure was one of experiment: direct object, that project of plunderage, which will be seen continued and extended by the hands of Lord Eldon in 1807, and sanctioned by parliament in 1822: collateral, or subsidiary object on his part, giving additional strength to the dominion of judge-made over parliament-made law. Full butt did this order run against a special statute, made for remedy against this very abuse: not to speak of the general principle laid down, and thus vainly endeavoured to be established, by the petition of rights. But as to this, see next section.
Of the price the public was made to pay for this sinister profit, not more than half has, as yet, been brought to view. The other half went to stop mouths. Waste, all of it, as well as productive of correspondent delay, is what is exacted for all three sorts of clerks. Thus felt, and even yet say, the solicitors. The plunderable fund is composed of the aggregate property of all those who can afford to buy a chance for the article sold under the name of equity. The greater the quantity taken by the one set, the less is left for the other—see an experience of this shown in § 13. Preceded accordingly by the bonuses given to these more immediate cointeressees of the chancellor and his feudatory, was a like bonus given to the fraternity of solicitors.
CONTRARY TO LAW WAS THE ORDER.
Not to speak of clauses of common, that is to say, imaginary law, called principles, borrowed or made by each disputant for the purpose of the dispute—full butt does the order run against indisputable acts of parliament;—acts of general application applying to taxation in any mode without consent of parliament;—acts of particular application, applying to taxation in this particular mode:—
1. First comes the generally-applying act, 25 Ed. I. c. 7, anno 1297—“We have granted for us and our heirs, as well to archbishops . . . . as to earls . . . . and to all the commonalty of the land, that for no business from henceforth we shall take such manner of aids, tasks, nor aprises, but by the common assent of the realm.”
2. Next comes 34 Ed. I. stat. 4, c. 1, anno 1306—“No tallage or aid shall be taken or levied by us, or our heirs, in our realm, without the good-will and assent of archbishops, bishops, lords, barons, knights, burgesses, and other freemen of the land.”
3. Now comes the specially-applying act, 20 Ed. III. c. 1, anno 1346—“First, we have commanded,” says the statute, “all our justices to be sworn, that they shall from henceforth do equal law and execution of right to all our subjects, rich and poor. And we have ordained and caused our said justices to be sworn, that they shall not from henceforth, as long as they shall be in the office of justice, take fee nor robe of any man but of ourself, and that they shall take no gift nor reward, by themselves nor by others privily or apertly, of any man that hath to do before them by any way, except meat and drink, and that of small value.”*
4. Lastly comes the all-comprehensively-applying clause in the act commonly called the Petition of Rights, 3, Ch. I., c. 1, § 20—“That no man hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent by act of parliament.”
Turn back now to the judge-made law, and the enactors of it. Could they have had any doubt as to the illegality of what they were doing? Not unless these sages of the law had forgot the A, B, C of it.
But a pretence is made,—and what is it? “Whereas the same” (speaking of the fees of the offices in question) “have been at different times regulated by the orders of this court, as occasion required.”
The “different times,”—what are they? They are the one time, at which, by a like joint order, anno 1743, 17 Geo. II., Lord Chancellor Hardwicke, his Master of the Rolls, Fortescue, “did order and direct that the sworn-clerks and waiting-clerks do not demand or take any greater fees or reward for the business done or to be done by them in the six-clerks’ office, than the fees and rewards following:” whereupon comes a list of them.†
In any of the many reigns in which parliament never sat but to give money, and in which, could kings have kept within bounds, there would have been an end of parliaments,—as the value of money sunk, augmentation of subordinates fees by superiors might have had something of an excuse. But Lord Hardwicke—while he was scheming this order, he was receiving, in the House of Lords, money-bills in profusion, brought up by the House of Commons. This tax of his—would the Commons have given, or would they have refused, their sanction to it? Under either supposition, this tax of his imposition was without excuse.
Well, and suppose that Chancellor and his Master of the Rolls had done what Lord Chancellor Erskine and his Mentor did,—“order and direct that the said schedule of fees be adopted?” (p. 18.) But they did no such thing: they were too wary: the time was not ripe for it. George the Second had a Pretender to keep him in check: George the Third had none. True it is, that by their adroitly-worded prohibition, all the effect of allowance was produced. But, had anything been said about the order, there were the terms of it:—all that these models of incorruption had in view by it was repression: allowance was what it was converted into, by underlings acting out of sight of superiors. Thus, on a ground of rapacity, was laid an appropriate varnish—a coating of severe and self-denying justice.
The caricature-shops used to exhibit divers progresses: progress of a Scotchman, progress of a parson, and some others. In these pages may be seen that of a fee-gathering judge. Seen already has been the first stage of it.
If Lord Erskine, or rather the unfledged equity-man’s Mentor, had any doubts of the illegality of what they were doing, no such doubts had Lord Eldon: for now comes another motion in the gymnastics of lawyer-craft—the last stage, or thereabouts, which for the moment we must anticipate.
The last stage in the progress is that which is exhibited in and by that which will be seen to be his act—the act of 1822—3 Geo. IV. c. 69, as per § 13 of these pages: the assumption, per force, recognised to be illegal; because, as will also be seen, the court of King’s Bench had just been forced to declare as much: whereupon came the necessity of going, after all, to parliament: illegality recognised, but a different word, the word effectually-employed, that from all who were not in the secret, the evil consciousness might be kept hid. “Whereas,” says the preamble, “it is expedient that some provision should be made for the permanent regulations and establishment of the fees of the officers, clerks, and ministers of justice of the several courts of Chancery, King’s Bench, Common Pleas, Exchequer, and Exchequer Chamber, at Westminster, and of the clerks and other officers of the judges of the same courts; but the same cannot be effectually done but by the authority of parliament” . . . . thereupon comes the first enactment, enabling judges to deny and sell justice for their own profit, and giving legality and permanence (and, by the blessing of God, Mr. Justice Bailey, and Mr. Justice Park! eternity) to the things of which we have been seeing samples.
As to the effectuality of the thing, what had been done in this way without parliament and against parliament, had been but too effectually done; and, but for the so lately disclosed illegality, might and would have continued to be done, as long as Matchless Constitution held together. At the same time, what is insinuated is—that, although what had thus been done without parliament, had hitherto and all along been done legally, yet, for want of some machinery, which could not be supplied but by parliament, it could not in future be so effectually done, as it would be with the help of such machinery, which, accordingly, the act was made to supply. Not an atom of any such subsidiary matter is there in the act. All that this act of Lord Eldon’s does, is to authorize and require himself, and the other judges in question—the Westminster-Hall chiefs—to do as it had found them doing: taxing the injured—taxing them on pain of outlawry—taxing the people, and putting the money into their own pockets. In § 13, the reader will see whether what is here said of the absence of all machinery is not strictly true. Nothing whatever, besides what is here mentioned, does the act so much as aim at.
BY IT, INCREASE AND SANCTION WERE GIVEN TO EXTORTION.
The illegality of the order supposed, taking money by colour of it, is extortion;—either that is, or nothing is.
Ask Mr. Serjeant Hawkins else. As good common law as Mr. Anybody else, or even my Lord Anybody else, makes, is that made by Mr. Serjeant Hawkins; so says everybody. Look to ditto’s Pleas of the Crown, vol. ii. b. i. ch. 68, § 1. In the margin especially, if you take Leach’s edition, or any subsequent one, you will see a rich embroidery of references: if the ground does not suit you, go to the embroidery, and hard indeed is your fortune, if you do not find something or other that will suit you better.
“It is said,” says he, “that extortion, in a large sense, signifies any oppression under colour of right; but that, in a strict sense, it signifies the taking of money by any officer, by colour of his office, either where none at all is due, or not so much is due, or where it is not yet due.” So much for the learned manufacturer. For the present purpose, the strict sense, you will see, is quite sufficient: as for the large sense, this is the sense you must take the word in, if what you want is nonsense. If you do, go on with the book, and there you will find enough of it; and that too without need of hunting on through the references; for if, with the law-making serjeant, you want to enlarge extortion into oppression, you must strike out of extortion the first syllable, and, with it, half the sense of the word; which done, you will have tortion—which will give you, if not the exact synonyme of oppression, something very little wide of it; and here, by the bye, you have a sample of the sort of stuff on which hang life and death under common law.
SO, TO CORRUPTION.
Corruption? No: no such head has the learned aforesaid manufacturer and wholesale dealer in crown-law. No matter: he has bribery. Rambling over that field, he picks up corruption, which he takes for the same thing. Had he lived in present times, well would he have known the difference. Bribery is what no judge practises: would you know what prevents him, see “Observations on the Magistrates’ Salary-raising Bill:” Corruption—self-corruption—is what, as you may see there and here, every Westminster-Hall chief judge has been in use to practise; and is now, by act of parliament, anno 1822, 3 Geo. IV. c. 69, allowed to practise.
For bribery, too, Hawkins has his strict sense, and his large sense. It is in its large sense that he fancies it the same thing with corruption. Neither to bribery, however, nor to corruption, does this law of his apply itself, in any other case than that in which he who commits it has something or other to do with the administration of justice.* But, as before, this is all that is wanted here.
“Bribery,” says he, “in a strict sense, is taken for a great misprision of one in a judicial place, taking any valuable thing whatsoever, except meat and drink of small value,† of any one who has to do before him any way, for doing his office, or by colour of his office, but of the king only.
“§ 2. But bribery in a large sense,” continues he, “is sometimes taken for the receiving or offering of any undue reward, by or to any person whatsoever, whose ordinary profession or business relates to the administration of public justice, in order to incline him to do a thing against the known rules of honesty and integrity; for the law abhors [inuendo the common law, that is to say, it makes the judges abhor] any the least tendency to corruption, in those who are any way concerned in its administration.”
Here the learned serjeant waxes stronger and stronger in sentimentality, as he ascends into the heaven of hypocrisy, where he remains during the whole of that and the next long section. “Abhor corruption!” Oh yes, even as a dog does carrion.
Be this as it may, note with how hot a burning iron he stamps bribery and corruption on the foreheads of such a host of sages:—of Lord Erskine (oh fie! isn’t he dead?)—Sir William Grant (oh fie! was he not an able judge?)—and Lord Eldon, the Lord of Lords, with his cæteras the inferior chiefs.
HOW LORD ELDON PRONOUNCED THE EXACTION CONTRARY TO LAW—ALL THE WHILE CONTINUING IT.
The following is the tenor of a note obtained from an eminent barrister present, who had particular means and motives for being correct as to the facts, and who does not, to this moment, know the use intended to be made of it. In the Court of Exchequer, February 5, 1820:—
“A question was made upon a petition, whether certain allowances, made to a solicitor on the taxation of his bill of costs, were regular, which they would have been, if the court of Exchequer adopted in its practice the additional allowances made by Lord Erskine’s order, otherwise not.
“It was objected that those additional allowances were not adopted by the Exchequer, inasmuch as Lord Erskine’s order was not legal, and that Lord Eldon had intimated an opinion that he did not consider it as legal.
“The Chief Baron (Richards) admitted that he understood Lord Eldon had said that he did not consider Lord Erskine’s order as being legal, but that it had been now so long acted upon, that the court must be considered as having sanctioned it, and that he (Richards) should follow what had been said by Lord Eldon.” Thus far the report.
As to its being for his own benefit, see § 4.
Thirteen years, and no more, having sufficed thus to set bench above parliament, anno 1820, quære, what is the smallest length of time that will have become sufficient before the reign of John the Second is at an end?
Objector—Idle fears! how inconsiderable, in all this time, the utmost of what the people can have suffered from the exercise of this power!
Answer—True, the plunderage has its limit. Thank for it, however—not learned moderation, but a very different circumstance, which will be explained in § 13, when the act by which the last hand was put to the plan comes to be considered: moreover, what makes fees so stickled for in preference to salary, is—that as plunderable matter increases, so will plunderage.
As to its being for his own profit that Lord Eldon thus continued the exaction, see § 4.
Bravo! Lord Chancellor Eldon!—bravo! Lord Chief Baron Richards! “So long!” that is to say, just thirteen years: assuming what of course is true—that of the course of illegality begun under Lord Erskine, and pursued under Lord Eldon, the continuation commenced with his re-accession. Years, thirteen! Here then is one length of time which suffices to entitle the Westminster chiefs, all or any one of them, to set aside any act or acts of parliament they please: and in particular any act of parliament, the declared object of which is to prevent them from plundering, without stint, all people, who can and will buy of them, what they call justice, and from denying it to all who cannot.
But Bar? . . . . what said Bar to this? Oh! Exchequer is a snug court: small the quantity of Bar that is ever there. But, were there ever so much, Bench cannot raise itself above parliament but it raises Bar along with it. Between Bench and Bar, even without partnership in money or power, sympathy would of itself suffice to make community of sinister interest. The same fungus, which, when green, is made into Bar, is it not, when dry, made into Bench?
No want of Bar was there, anno 1801, when Lord Eldon, as per next section, laid the ground for the decision, thus pronounced anno 1820; as little, when, the next year (1821) as per § 12, ground and all were laid low by the shock of an earthquake. Matchless Constitution (it will be seen) may be turned topsy-turvy, and lay-gents know nothing of the matter: Bar looking on, and laughing in its sleeve.
Note here the felicity of Lord Eldon: the profit reaped by him from his Hegira of a few months. We shall soon see how, from one of the most unexpectable of all incidents, the grand design of the grand master of delay experienced a delay of six years: a delay, which, like so many of his own making, might never have found an end, but for the short-lived apparent triumph and unquiet reign of the pretenders to the throne. When, upon their expulsion, the legitimates resumed their due omnipotence, it seemed to all who were in the secrets of providence—and neither Mr. Justice Bailey nor Mr. Justice Park, nor any other chaplain of Lord Eldon’s, could entertain a doubt of it—that it was only to give safety and success to this grand design of his, that the momentary ascendency of the intruders had been permitted. The Chancellor, by whom the first visible step in the track of execution was taken, being a whig,—not only was a precedent set, and ground thus made for the accommodation of Lord Eldon, but a precedent which the Whigs, as such, stood effectually estopped from controverting. Poor Lord Erskine—all that he had had time to do, was to prepare the treat: to prepare it for his more fortunate predecessor and successor. Scarce was the banquet on the table, when up rose from his nap the “giant refreshed,” and swept into his wallet this, in addition to all the other sweets of office. As to poor Lord Erskine, over and above his paltry £4000 a year, nothing was left him, but to sing with Virgil—Sic vos non nobis mellificatis apis.
HOW THE CHANCELLOR HAD LAID THE GROUND FOR THE MORE EFFECTUAL CORRUPTION OF HIMSELF AND THE OTHER CHIEFS.
For this ground we must, from 1821, go as far back as the year 1801. In the explanation here given of the charges, it seemed necessary to make this departure from the order of time; for, till some conception of the design, and of a certain progress made in the execution of it, had been conveyed, the nature of the ground, so early, and so long ago, laid for it, could not so clearly have been understood.
In nonsense (it will be seen) was this ground laid: plain sense might have been too hazardous. The document in which the design may be seen revealed, is another reported case, and (what is better) one already in print: Ex-parte Leicester, Vesey Junior’s Equity Reports, VI. 429. Buried in huge grim-gribber folios, secrets may be talked in print, and, for any length of time, kept. The language nonsense, the design may be not the less ascertainable and undeniable. Nonsense more egregious was seldom talked, than, on certain occasions, by Oliver Cromwell. Whatever it was to the audience then, to us the design is no secret now.
Here it follows—that is to say, Lord Eldon’s.
Vesey Junior, VI. 429 to 434. Date of the report 1801, Aug. 8. Date of the volume, 1803, p. 432.—Lord Chancellor (p. 432)—“A practice having prevailed, for a series of years, contrary to the terms of an order of the court, and sometimes contrary to an act of parliament, it is more consistent to suppose some ground appeared to former judges, upon which it might be rendered consistent with the practice: and therefore, that it would be better to correct it in future, not in that particular instance. Upon the question, whether that order is to be altered, or to be acted upon according to its terms, which are at variance with the practice, I am not now prepared to deliver a decisive opinion: for this practice having been ever since permitted to grow up as expository of the order, if my opinion was different from what it is as to the policy of the order according to its terms, I must collect, that there is in that practice testimony given, that, according to the terms, it would be an inconvenient order.”
No abstract this—no paraphrase—verba ipsissima. Eldon this all over. None but himself can be his parallel.
Nothing which it could be of any use to insert, is here omitted. Those who think they could find an interpretation more useful to Lord Eldon by wading through the five or six folio pages of his speech, let them take it in hand, and see what they can make of it. All they will be able to do, is to make darkness still more visible.
HOW THE DESIGN WAS STOPT SHORT BY A SOLICITOR, TILL SET A-GOING AGAIN, AS ABOVE.
The deepest-laid designs are sometimes frustrated by the most unexpected accidents. From the hardihood of a man whose place was at his feet, we come now to see a design so magnificent as this of the Chancellor’s, experiencing the above-mentioned stoppage of six years.
Before me lies an unfinished work, printed but not published: title, “Observations on Fees in Courts of Justice:” Date to the Preface, Southampton Buildings, 17th November 1822. In that street is the residence of Mr. Lowe, an eminent solicitor. The work fell into my hands without his knowledge. He is guiltless of all communication with me. This said, I shall speak of him as the author without reserve. From that work I collect the following facts. Year and month, as above, may be found material.
1.—Page 20. Early in Lord Eldon’s first chancellorship, to wit, anno 1801, his lordship not having then been five months in office, Mr. Lowe, in various forms, stated to his lordship, in public as well as in private, that in his lordship’s court, “the corruption of office had become so great, that it was impossible for a solicitor to transact his business with propriety.” This in general terms: adding, at the same time, what, in his view, were particular instances, and praying redress. Note, that to say in his lordship’s court, was as much as to say under his lordship’s eye:—after such information, at any rate, if not before.
2.—Page 20. Argument thereupon by counsel: Mansfield, afterwards Chief-Justice of the Common Pleas; Romilly, afterwards Solicitor-General. On the part of both, assurance of strong conviction that the charge was well founded; proportionable fears, and not dissembled, of the detriment that might ensue to the personal interest of their client from the resentment of the noble and learned judge.
3.—Page 20, 21. Proof exhibited, of the reasonableness of these fears:—“Judge angry”....Petitioner “bent beneath a torrent of power and personal abuse.”
4.—Page 21. Five years after, to wit, anno 1806—Lord Erskine then Chancellor—similar address to his lordship; a brief again given to Romilly (at this time solicitor-general) but with no better fortune: further encouragement this rebuff—further encouragement, to wit, to Lord Eldon, when restored.
3.—Page 21.—In a note, reference to the above-mentioned case, Ex-parte Leicester, in Vesey, junior, with quotation of that portion of his lordship’s speech, which may be seen above in § 9. Hence a conjecture, that in that same case, Mr. Lowe himself, in some way or other, had a special interest. From the reference so made to that case, and his lordship’s speech on the occasion of it, it should seem that the design of it, as above, was not a secret to Mr. Lowe, and that his lordship knew it was not.
Here ends the history of the stoppage.
6.—Preface, pp. 6, 7. Upwards of eighteen months antecedently to the above-mentioned 17th November 1822, say accordingly, on or about 17th May 1821, page 6, on the occasion of two causes—Limbrey against Gurr, and Adams against Limbrey,—laid by Mr. Lowe before the Attorney-General of that time, to wit, Sir Robert Gifford, matters showing “that the increasing amount of fees and costs was like a leprosy rapidly spreading over the body of the law.”
7.—Preface, p. 3. Anno 1821, Trinity vacation—day not stated—to wit, sometime between July and November, mention made of his lordship’s courtesy, and of “a promise which his lordship”—(wrath having had twenty years to cool)—“very condescendingly performed.” On this occasion, hearing before his lordship, Master of the Rolls sitting with him: proof presumptive, not to say conclusive, that, on this occasion, Lord Erskine’s order was under consideration; “Controverted” by Mr. Lowe, a fee that had received the confirmation of one of the sets of commissioners, appointed by Lord Eldon for this and those other purposes that everybody knows of.
8.—Preface, p. 5. Anno 1822, Easter term. Observations on the same subject, laid before the “Master in Ordinary,” meaning doubtless one of the officers ordinarily styled Masters in Chancery, ten in number, exclusive of the Grand Master, the Master of the Rolls. With as good a chance of success might the gentleman have laid them before the Master of the Mint.
9.—P. 5. Anno 1822, soon after the above “information and bill” filed against Mr. Lowe, by Mr. Attorney-General, and said to be fully answered. Solicitor to the Treasury, “Mr. Maule.” Answer put in by defendant, attachment for contempt in not answering. Quære, what means “information” and “bill?” Information in King’s Bench? Bill in Chancery? But what answer can an information in King’s Bench admit of?
10.—P. 6. Shortly afterwards, Observations laid by him before the lords of the treasury, soliciting the investigation of the charge laid before the Attorney-General (Sir Robert Gifford) eighteen months before, on the occasion of the cases of Limbrey and Gurr, &c. as per No. 6.
Containing, as it does, pages between 5 and 6, this same preface is too long for insertion here. Carefully have the, above allegations been culled from it. Of the passage contained in the body of the work, the matter is too interesting and instructive to be omitted: it will be found below.
Here then is one source, from which, had it ears for corruption, Honourable House might learn at any time, whether, from the above alleged corruption, Lord Eldon has not, during the whole of his two chancellorships, been reaping profit, and whether it was possible so to have been doing without knowing it. By Lord Eldon’s present set of nominees, evidence from Mr. Lowe has, I hear, been elicited. Little, if any fruit, I hear, has been obtained from it. No great wonder any such barrenness. Anything unacceptable to their creator they could not be very desirous to receive: nor, perhaps. Mr. Lowe, since the experience had of his lordship’s “courtesy,” to give.
Astonished all this while at the stoppage—astonished no less than disappointed—must have been the goodly fellowship—the solicitors and clerks in court; importunate for six long years, but not less vain than importunate, had been their endeavours to obtain from Lord Eldon and his Sir William Grant—yea, even from Lord Eldon!—that boon, which with the same Sir William Grant for mediator and advocate,—at the end of six short months, we have seen them obtaining from Lord Erskine:—the said Sir William Grant being, as per § 4, in quality of patron, in partnership with the said clerks in court.*
P. 19. “An attempt in 1801 to reform practice.”
Whilst Lord Thurlow held the great seal, tables of fees taken by officers in the court of Chancery remained set up or affixed in their respective offices, and the most trifling gratuity was received with a watchful dubious eye, and cautious hand; but soon after the great seal was resigned by his lordship, those tables began to disappear, and (in 1822) have never since been renewed:—gratuities then augmented, until they had no limits: and so early as the year 1801, when increased fees and costs had attained little of the strength and consistency at which they have since arrived, the author of these observations stated to the court, “that the corruption of office had become so great, that it was impossible for a solicitor to transact his business with prepriety.”† To justify such statement, he, by petition, set forth certain payments made, which he insisted ought not to have been demanded or received, and prayed for redress; and he wrote a letter to one of the Lord Chancellor’s secretaries, in which he stated an opinion, which (until the great charter, and the before-mentioned statutes of King Edward III, and King Richard II., are repealed,) he is disposed to maintain: and which (though otherwise advised by his counsel) he then refused to retract.* The petition came on for hearing, and was supported by Mr. Mansfield and Mr. Romilly, with a spirit, and in a manner, peculiar to those advocates, and satisfactory to the feelings of the petitioner; and resisted by Mr. Attorney-General (Sir Spencer Perceval) and Mr. Richards.
In vain did Mr. Mansfield urge, that “gratuity was the mother of extortion,” and Mr. Romilly state the intrepidity of his client. On that occasion, the author of these observations, who never heard an angry judge give a just judgment, bent beneath a torrent of power and personal abuse.
On the coming in of a new administration, in the year 1806, the author of these observations addressed a letter to Lord Erskine, and prepared to further hear his petition; but he was given to understand, by those who had once applauded his efforts,† that a a change of men did not change measures; and since that time the irregular increase of fees and costs has introduced much confusion into the law.
HOW THE OTHER CHIEFS WERE CORRUPTED ACCORDINGLY.
As to what regards the Chief of the Exchequer Judicatory, an indication has been seen in § 8. As to what regards King’s Bench and Common Pleas, the like may be seen in § 12. Invitation,—“Take and eat.” Seen it has been and will be, whether there was any backwardness as to acceptance.
Forget not that these men were, all of them, his creatures: breath of his nostrils; sheep of his pasture.
HOW THE ILLEGALITY GOT WIND: AND HOW FELIX TREMBLED.
Of the spread of the contagion from Chancery to Exchequer, indications were given in § 8: mention was there made of its having completed the tour of Westminster Hall. What is there said is no more than general intimation: the manner how, comes now to be set forth.
Anno 1821, lived a broken botanist and ex-nurseryman, named Salisbury. To distinguish him from a namesake of the gentleman-class, Salisbury minor is the name he goes by among the Fancy. At the end of a series of vicissitudes, he had sunk into one of those sinks of misfortune, in which, to help to pamper over-fed judges, debtors are squeezed by jailors, out of the substance that should go to creditors. As from Smithfield an overdriven ox into a china-shop—breaking loose one day from his tormentors, Salisbury minor found means, somehow or other, to break into one of the great Westminster-Hall shops; in which, as often as a demand comes for the article so mis-called justice, bad goods are so dearly sold to all who can come up to the price, and denied, of course, to those who cannot. The china-shop scene ensued. Surprised and confounded, the shopmen exhibited that sort of derangement, which the French express by loss of head—ils ont perdu la tête. Under the notion of defence, confessions came out, which come now to be recorded.
Anno 1821, Nov. 21.—(The date is material.) Barnewall and Alderson’s King’s Bench Reports, Vol. V. p. 266.
“In the Matter of Salisbury (in Person!)
“Salisbury in person had obtained a rule nisi, for one of the tipstaffs of the court to answer the matters of his affidavit. The affidavit stated, that the tipstaff had taken a fee of half-a guinea, for conveying him from the judge’s chambers (to which he had been brought by habeas corpus) to the King’s Bench prison, such fee being more than he had a right to demand, according to the table of fees affixed in the King’s Bench, in pursuance of a rule of this court.
“Gurney and Platt showed cause, upon affidavits stating that the fee had been taken for a very long period of time by all tipstaffs in both courts, and that it was allowed by the Master in costs.
“The court, however, adverting to the statutes, 2 Geo. II. c. 22, § 4, and 32 Geo. II. c. 28, § 8, and the rule of court, of Michaelmas term, 3 Geo. II., and the table of fees settled in the following year, said, that it was clear, that the tipstaff had no right to take any other fee for taking a prisoner from the judge’s chambers to the King’s Bench prison, than six shillings, which was the fee allowed him in that table. They, therefore, ordered the fee so taken to be returned to the complainant.”*
Figure to himself, who can, the explosion. Bancum Regis shaken, as by an earthquake—Bancum Regis in an uproar!—the edifice it had cost Lord Eldon twenty years to rear, laid in ruins. We are above parliament, had said, as above, Lord Eldon. “Alas! no,” at the first meeting cried Lord Abbott: “I could not for the life of me, keep where you set us. I had not nerve for it. That fellow . . . . such impudence! who could have thought it? As to the fees, it is from parliament, you see, we must have them now, if at all. It may take you some little trouble; but you see how necessary it is, and you will not grudge it.”
This is not in the report; but it is in the nature of the case, and that is worth a thousand law reports, drawn up by toads under harrows.
Think now of the scene exhibited in and by King’s Bench:—culprit and judge under one hood—Guilty or not guilty? Not guilty? O yes, if the Master, whose every-day business it is to tax costs, knows not what they are: if the Chief-Justice, whose every-day business it is to hear discussions about costs, knows not what they are, or what they ought to be. See now how the accounts stands:—the money account. Of the 10s. 6d., legalized, say 6s.: remains confessed to have been extorted, 4s. 6d.: subextortioner’s profit, the 4s. 6d.: head-extortioner’s, the 4s. 6d., minus x: to find the value of x see above, § 4, and forget not, any more than Lord Eldon and Lord Abbott forgot, that pounds and thousands of pounds are made of pence and shillings.
Mark now another sort of account. Case, a criminal one. Co-defendants, had the list been complete, Tipstaff, Master, and Chief-Justice. Had it been as agreeable to punishers to punish themselves as others, what a rich variety of choice was here! Motion for imprisonment by attachment as above: for this is what is meant by answering affidavits: indictment for extortion, indictment for corruption, indictment for conspiracy; information for all or any of the above crimes.
Mark now the denouement. The case, as above, a criminal one: the crime not punished, but, without the consent of the sufferer, compounded for; of the fruit of the crime, the exact nominal amount ordered to be restored:—not a farthing even given to the hapless master-man, by whose sad day’s labour thus employed, so much more than the value had been consumed in thus sueing for it: with cost of affidavits several times as much. After seeing in this precedent the utmost he could hope for—what man, by whom like extortion had been suffered from like hands, would ever tax himself to seek redress for it? Redress—administered in semblance, denied in substance. With not an exception, unless by accident, such, or to an indefinite degree worse, is Matchless Constitution’s justice!
But the punishment?—where was the punishment? This is answered already. Had the order for redress comprised a sixpence beyond the 4s. 6d., the inferior malefactor might have turned upon his principal, and the fable of the young thief, who at the gallows bit his mother’s ear off, have been realized:—“Isn’t it you that have led me to this? These four-and-sixpences that I have been pocketing—is there any of them you did not know of? Had it not been for this mishap, would not my place have been made worth so much the more to you, by every one of them? Is there any one of them that did not add to the value of the place you will have to dispose of when I am out of it? Why do you come upon me then? Can’t you afford it better than I can? Pay it yourself.”
But—the two learned counsel, who thus fought for the 4s. 6d.—by whom were they employed?—by Tipstaff, Master, or Chief-Justice? Not by Tipstaff, surely: seeing that his cause was so much the Chief-Justice’s, he would not thus have flung away his money: he would not have given six, eight, or ten guineas to save a 4s. 6d.: these, if any, are among the secrets worth knowing, and which House of Commons will insist on knowing. Insist?—But when? when House of Commons has ceased to be House of Commons.
Well, then, this four-and-sixpenny tripartite business—is it not extortion? Is it not corruption? If not, still, for argument’s sake, suppose, on the part of all three learned persons—all or any of them—suppose a real desire to commit either of these crimes; can imagination present a more effectual mode of doing it? Till this be found, spare yourself, whoever you are, spare yourself all such trouble as that of crying out shame! shame! contempt of court! calumny! blasphemy!
Contempt of court, forsooth! If contempt is ever brought upon such courts (and, for the good of mankind, too much of it cannot be brought upon them,) it is not in the telling of such things, but in the doing of them, that the culpable cause will be to be found.
Here, then, we see, were statutes—here (according to Lord Eldon’s instructions) laid down as per § 9, at the outset—here were rules of court disposed of in the same way, and at one stroke. Anno 1801, in the first year of his reign—disposed of at one stroke, and in the same way. A liberty which might so easily be taken with acts of parliament—hard indeed it would have been, if a judge might not take it with the rules of his own court. Conformable (we see here exactly) was this operation to the instructions laid down by him, as per § 9, just twenty years before, anno 1801, in the first year of his reign. As to the rules of court, it was not in the nature of the case that they should present any additional difficulty; rules, which, if it were worth the trouble, and would not make too much sensation, he might have repealed in form at any time.
Be this as it may, here was the exact case, so long ago provided for by Eldonic providence: the case, which, being the principle laid down, with virtual directions given, for the guidance of his next in command, had been made broad enough to fit. “You need not be told (say these directions) how much more obedience-worthy common is than statute law:—law of our own making, than any of the law we are forced to receive from laygents. But, though you should find one of our own laws in your way—nay, though with one of their’s, you should find in your way one of our’s to give validity and strength to it—never you mind that; your business is to make sure of the fees. At the same time, for decency’s sake, while our underlings, who get more of them than we do, are screwing them up (and you may trust them for that) you of course will know nothing of the matter. Should any unpleasant accident happen—such as the having the table with the lawful fee, in company with the proof of the additional money habitually exacted, bolted out upon you in the face of the public, you will of course be all amazement. Though the thing can never have taken place, but under your own eye—while the prisoner was beginning to be conducted from your own chambers, where you had just been examining him—never had you so much as suspected the existence of any such difference.”
As to Lord Abbott, whatever want of disposition on his part there may have been to pay regard to acts of parliament, no such want could there have been as to any such instructions as these of Lord Eldon’s. But whether it was that he had not got them by heart, or that when the time came to repeat them and apply them to practice, his heart failed him,—so it was—they were not followed: and so, out came the confession that has been seen: the confession in all its nakedness.
This is not all: not more than three years before, this very fee had been taken into consideration by specially-appointed authority, and the 4s. 6d. disallowed. Under the head of ‘Tipstaff,’ “the table of 1760” (say certain commissioners, of whom presently) “directs the fee of 6s. to be paid to the tipstaff that carries any prisoner committed at a judge’s chambers to the King’s Bench prison.” . . . . “The fee of 10s. 6d. we conceive to have been taken in respect of these commitments . . . . for twenty-five years, and probably longer: but we recommend that the fee of 6s. only be received in future.”*
Mark now the regard manifested by these commissioners—by these commissioners of Lord Eldon’s—for the authority of parliament. Recommendation soft as lambskin: of the extortion, and contempt of parliament, impudent as it was, not any the slightest intimation, unless the rotten apology, thus foisted in instead of censure, be regarded as such. Of this recommendation, the fruit has been already seen: the fee taken, and, for aught that appears, uninterruptedly taken notwithstanding. What? In all the three intervening years, the Chief-Justice, had he never heard of any such recommendation?—never heard a report, of which his own court, with the fees belonging to it, were the subject?—never seen any thing of it?
And the commissioners? For what cause disallow the 4s. 6d.? Only because the act of parliament, and the contempt so impudently put upon it, and the extortion and corruption for the purpose of which the contempt was put, had been staring them in the face. Men, who from such hands accept, and in this way execute, such commissions—is not some punishment their due? Yes, surely: therefore here it is. Public—behold their names!—1. John Campbell, Esq. Master in Chancery;—2. William Alexander, Esq. then Master, now, by the grace of Lord Eldon, Lord Chief Baron of the Exchequer;—3. William Adams, Doctor of Civil Law;—4. William Osgood, Esq.;—5. William Walton, Esq.
Accompanied are these recommendations by certain non-recommendations. From those as to tipstaffs, reference is made to ditto as to Marshal: and there it is, that, after stating (p. 172) that his profit arises chiefly out of two sources, of which (be it not forgotten) the tap is one—with this source before them it is, that (after ringing the praises of it) another of their recommendations is—“that this matter be left in the hands of the court to which the prison more immediately belongs:” in plain English, of the Chief-Justice, whose interest it is maximize the profit in all manner of ways, and of whose emoluments they saw a vast portion, rising in proportion to the productiveness of this source. Throughout the whole of the report, except for a purpose such as this, not the least symptom of thinking exhibited: “fees taken so much, we recommend so much:” such, throughout, is the product of the united genius of these five scholars of the school of Eldon.*
See now, Mr. Peel, and in its genuine colours, this fresh fruit of the consistency of your consistent friend. See, in this rich fruit, the effect and character of his commission. Oppose now, Mr. Peel, if you have face for it; oppose now, Mr. Attorney-General, if you have face for it: oppose now, Mr. Attorney-General Copley—for neither must your name be covered up—the permitting of the House of Commons to exercise the functions of the House of Commons.
Oppose now, if you have face for it, “the dragging the judges of the land” before the Catos whom you are addressing—the tribunal of parliament. Fear no longer, Mr. Peel, if ever you feared before, the obtaining credence for your assurance—that it was by Lord Eldon his Majesty was advised to commission Lord Eldon to report upon the conduct of Lord Eldon. Mr. Canning—you, who but two years ago—so light in the scale of sentimentalism is public duty weighed against private friendship,—(and such friendship!)—you, who so lately uttered the so solemn promise never to give a vote that should cast imputation upon Lord Eldon,—watch well, Sir, your time, and when, these imputations having come on, votes come to be given on them, repress then, if possible, your tears, and, wrapping yourself up in your agony, hurry out of the House.
HOW THE CHANCELLOR WENT TO PARLIAMENT, AND GOT THE CORRUPTION ESTABLISHED.
The explosion has been seen. Blown by it into open air, was the scheme of taxing without parliament, and in the teeth of parliament. At the same time, a handle for denunciation was left prominent; and it has been seen how broad an one: a handle too, which some Williams or other might at any time lay hold of, and give trouble: the trouble which the driver of pigs has with his pigs—the trouble of collecting honourable gentlemen together, and whistling them in when the question is called for. Delay, therefore, was not now in season. November 21, 1821, was the day on which the breach, as above, was made: a session did not pass without providing for the repair of it: the 10th of June 1822, is the day on which the first stone was laid; and how thorough and complete the repair is, remains now to be shown. The hand of parliament being the only applicable instrument, stooping at last to employ it could not but be more or less mortifying to a workman to whom, for so many years, it had been a football. But, to Lord Eldon, the part of the reed is not less familiar than that of the oak; and what was lost in universally applicable power will be seen gained in ease and tranquillity, reference had to this special and most valuable use of it.
Act 22d July 1822, 3 Geo. IV. c. 66.—Title, “An Act to enable the Judges of the several Courts of Record at Westminster to make Regulations respecting the Fees of the Officers. Clerks, and Ministers of the said Courts.”
The preamble has been seen: business of it, skinning over the past illegality, section 6. Business of the first, empowering these same judges to screw up to a maximum, and without stint, the accustomed fees: of the second, to add any number of new ones: of the third, making it, to this effect, the special duty of all underlings to do whatever their masters please: of the fourth, anxiously easing them of the trouble of regulating solicitors’ fees, forasmuch as nothing was to be got by it: of the fifth, providing, as has been and will be seen, for the concealment of the fees as before, should more be to be got at any time by their being concealed than by their being known: of the sixth, which is the last, providing compensation for any the smallest fee, which, by accident, should happen to slip out: should any such misfortune ever happen, the losers are not only authorised, but “required,” to tell “his Majesty” of it.
For every possible additional duty, an additional fee, or batch of fees: Good. In § 14, or elsewhere, it will be seen how it is that, by multiplying such duties under the rose, equity pace, and equity cost, have been rendered what they are.
Everything at “discretion,” (§ 1:) everything as they “shall see fit,” (§ 1:) the people of England, all who have redress to seek for injury from without doors—all who have to defend themselves against any of those injuries of which these same judges are the instruments—all who have to defend themselves against injuries, the seat of which is in the pretended seat of redress—all who have to defend themselves against the attacks of any of those villains with whom Lord Eldon has thus placed these judges, together with himself, in partnership—all, all are thus delivered up bound, to be plundered in secret, without stint or controul, by the hands of these same judges. Never could more solicitude have been demonstrated: never more appropriate talent, as well as care, expended in satisfying it: so exquisite the work, the most exquisitely magnifying microscope might be challenged to bring to view a flaw in it. In the style of English legislation, it may be given as a model: as a study—for a young draughtsman, who, for sections a yard long, looks to be paid at so much a word. The same hand, which, had no better interest than the public’s been to be provided for, would have left loop-holes, through which the entire substance of the measure might be extracted, has, in this its darling work, as if by an hermetic seal, closed all such crannies. Could this pamphlet have been made to hold it, I should have copied it, and pointed out the beauties of it. For comprehensiveness it has but one rival, and that is in the law called civil law. Quod principi placuit legis habet vigorem. For principi, put judici, you have the act of English law—the act of George the Fourth.
The enacting part could not be too clear of equivocation: and not a particle is to be found in it. The preamble presented an irresistible demand for equivocation; and here it is. Seen already (in § 5) has been this same preamble, with its essential word effectually. Note here the use of it: it is this. The more effectually to turn men’s minds aside from the idea of the illegality,—causing them to suppose, that though nothing had been done but what was legal, strictly legal, yet, to give to what had been done its full effect, legal machinery in some shape or other was needed, in addition to such as learned workmen stood already provided with: and that, to give existence to such additional machinery was accordingly the object of the act. Now, the fact is, that no such additional machinery does the act provide or attempt to provide: not an atom of it. What it does, is—easing the hands of the criminals, of whatsoever check they felt applied by the consciousness of their so lately divulged criminality,—thus giving to them the undisturbed power of taxing the people for their own profit, without stint; and, for this purpose, rendering that power which had so long been arbitrary in fact, at length arbitrary by law.
Remains the clause about keeping the table of fees exposed to view. They are to be “kept hung up”—these table of fees—“hung up in a conspicuous part of the” room. Good: and while there hung up, what will be the effect of them? The same as of those hung up in virtue of those former statutes of George II., with the King’s Bench rule that followed them. The place they are hung up in, is to be a conspicuous one. Good: but the characters? of these nothing is said: so that here is a loop-hole ready made and provided.
In the above-mentioned case,* which produced the demand for this act, a document, referred to as a ground of the decision, is—a rule of court, of Michaelmas term, 3 Geo. II.† and “the table of fees settled in the following year.” In article 8th of the document intituled “Rules and Orders,” &c. mentioned in that same rule of court, which, without any title, is in Latin, in speaking of the table of fees, it is said, that it shall be “fairly written in a plain and legible hand.” With this clause lying before him—and he could not but have had it lying before him—with this clause lying before him it is, that the penner of this same act of Lord Eldon’s contents himself with speaking about the place, and says nothing about the hand.
What the omission had for its cause—whether design or accident—judge, whosoever is free to judge, from the whole complexion of the business. Not that even in this same rule of court, with its “fair and legible hand,” there was anything better than the semblance of honesty. Tables of benefactors to churches and parishes—tables of turnpike tolls—were they, even in those days, written in a fair and legible hand? No: they were painted in print hand, as they are still, in black and gold. But, if instead of fair and legible, the characters should come to be microscopic, and as illegible a scrawl as can be found—suppose in the grim-gribber hand called court hand—a precedent of this sort will not be among the authorities to be set at nought: this will not be among the cases in which, according to Lord Eldon’s consistency, as per page 356, “It would be more consistent to suppose some ground appeared to former judges, upon which it” (the act of parliament, or the rule of court, or both) “might be rendered consistent with the practice”—meaning, with the practice carried on in violation of them.
Lord Eldon’s Act, or The Eldon Act, should be the style and title of this act. Precedent, Lord Ellenborough’s Act,—so styled in a late vote paper of Honourable House:‡ Lord Ellenborough’s act, sole, but sufficient and characteristic, monument, of the legislative care, wisdom, and humanity of that Peer of Parliament, as well as Lord Chief Justice.∥
As to the Chancellor’s being the primum mobile of the act,—only for form’s sake, and to anticipate cavil, can proof in words be necessary. The bill being a money bill, it could not make its first appearance in the House in which Lord Eldon rules these matters by his own hand. The members, by whom it was brought into the only competent house, were the two law-officers: and that, by these two official persons, any such bill could, consistently either with usage or propriety, have been brought in otherwise than under the direction of the head of the law, will not be affirmed by any one. The Act, then, was LORD ELDON’S Act.
HOW THE HEAD OF THE LAW, SEEING SWINDLING AT WORK, CONTINUED IT, AND TOOK HIS PROFIT OUT OF IT.
Swindling is an intelligible word: it is used here for shortness, and because familiar to everybody. Look closely, and see whether, on this occasion, it is in any the slightest degree misapplied.
By statute 30 Geo II. c. 24, § 1—“All persons who knowingly or designedly, by false pretence or pretences, shall obtain from any person or persons, money . . . . with intent to cheat or defraud any person or persons of the same . . . . shall be fined or imprisoned, or . . . . be put in the pillory, or publicly whipped, or transported . . . . for . . . . seven years.”*
1. “All persons,” says the act. If, then, a Master in Chancery, so comporting himself as above, is not a person, he is not a swindler: if he is a person, he is.
2. And so, in the case of a commissioner of bankrupts, if any one there be who has so comported himself.
3. So likewise in the case of any other functionary, holding an office under Lord Eldon.
4. So likewise in the case of every barrister, practising in any of the courts in or over which Lord Eldon is judge; in the case of every such barrister, if so comporting himself.
5. Add, every solicitor.
If, however, it is true, as indicated in the samples given in § 2, that in the case of the solicitor, in respect of what he does in this way, he is, by the subordinate judge (the aforesaid Master) not only to a great extent allowed, but at the same time to a certain extent compelled,—here, in his case, is no inconsiderable alleviation: in the guilt of the official, that of the non-official malefactors is eclipsed, and in a manner swallowed up and drowned.
So far as regards Masters in Chancery: to judge whether, among those same subordinate judges under Lord Eldon, there be any such person as a swindler, and if so, what number of such persons, see the sample given in § 2.
Same question as to commissioners of bankrupts, concerning whom, except as follows, it has not as yet been my fortune to meet with any indications. Lists of these commissioners, 14: in each list, 5: all creatures, all removable creatures—accordingly, all so many virtual pensioners during pleasure—of Lord Eldon. Further subject of inquiry, whether these groups likewise be, or be not, so many gangs of his learned swindlers.
Indication from the Morning Chronicle, Friday, April 15, 1825.
At a common council, Thursday, April 14, information given by Mr. Favel. Appointment made by list 2d of these commissioners, for proof of debts in a certain case: hour appointed, that from 12 to 1; commissioners named in the instrument of appointment, Messrs. Glynn, Whitmore, and Mr. M. P. Horace Twiss. Attendance by Mr. Glynn, none: by Mr. Whitmore, as little: consequence, nothing done: by Mr. Horace Twiss, an hour and a half after the commencement of the appointed time, half an hour after the termination of it, a call made at the place. Had he even been in attendance from the commencement of the time, instead of stepping in half an hour after the termination of it, still, commissioners more than one not being present, no business could (it seems) have been done. To what purpose, then, came he when he did, unless it was to make a title to the attendance-fee? Moreover, for this non-attendance of theirs, Messrs. Glynn and Whitmore, have they received their attendance-fees? If so, let them prove, if they can, that they are not swindlers. Mr. Horace Twiss, who does not attend any part of the time, but steps in half an hour after, when his coming cannot answer the purpose, has he received for that day any attendance-fee? If so, then comes the same task for him to perform. Mr. Favel’s candour supposes some excuse may be made for Mr. Twiss: if so, a very lame one it will be. An option he should have had to make is, to do his duty as a commissioner of bankrupts, and not be a member of parliament, or do his duty as a member of parliament (oh, ridiculous!) and not be a commissioner of bankrupts:—a commissioner of bankrupts, and, as such, one of Lord Eldon’s pensioners. Convinced by his commissionership of the immaculateness of his patron, commissioner makes a speech for patron, much, no doubt, to the satisfaction of both. Should a committee be appointed to inquire into Chancery practice—there, Mr. Peel, there—in Mr. Twiss, you have a chairman for it.
Meantime, suppose, for argument’s sake, Mr. Twiss comporting himself in any such manner as to give just cause of complaint against him—be the case ever so serious—to what person, who had any command over his temper, would it appear worth while to make any such complaint? To judge whether it would, let him put the question to Mr. Lowe, as per § 10.
These men—or some (and which?) of them—being so many swindlers,—he who, knowing them to be so, protects them in such their practices, and shares with them—with all of them—in their profits, what is he? Is not he too either a swindler, or, if distinguishable, something still worse? If, with strict grammatical or legal propriety, he cannot be denominated a receiver of stolen goods,—still, the relation borne by him to these swindlers, is it not exactly that which the receiver of stolen goods bears to the thief? Masters in Chancery, 10; Commissioners of Bankrupts, 90; together, 100; and, upon the booty made by every one of them, if any, who is a swindler, does this receiver of a portion of their respective gains make his profit: these same swindlers, every one of them, made by him what they are—Stop! Between the two sorts of receivers,—the thief-breeding and the swindler-breeding receivers,—one difference, it is true, there is. The thief-breeder, though, in so far as in his power, he gives concealment to his confederates, he does not, because he cannot, give them impunity:—whereas the swindler-breeding receiver, seeing that he can, gives both.
Masters in Chancery—creatures of this same creator, almost all, if not all of them—is there so much as one of them who is not a swindler—an habitual swindler? Say no, if you can, Lord Eldon! Say no, if you can, Mr. Secretary Peel! Deny, if you can, that your Mentor is in partnership with all these swindlers. Deny it, if you can, that, out of those who have accepted from him the appointment of reporting him blameless, two are of the number of these same swindlers.
“Oh, but,” by one of his hundred mouthpieces, cries Lord Eldon, “nothing has he ever known of all this: nothing, except in those instances in which his just displeasure at it has well been manifested. Whatever here be that is amiss, never has been wanting the desire to rectify it—the anxious desire . . . . But the task! think what a task! think too of the leisure, the quantity of leisure necessary! necessary, and to a man who knows not what it is to have leisure! Then the wisdom! the consummate wisdom! the recondite, the boundless learning! Alas! what more easy than for the malevolent and the foolish to besputter with their slaver the virtuous and the wise!”
Not know of it indeed? Oh hypocrisy! hypocrisy! The keeper of a house of ill-fame . . . . to support an indictment against him, is it necessary that everything done in his house should have been done in his actual presence? Ask any barrister, or rather ask any solicitor, whom retirement has saved from the chancellor’s prospect-destroying power—ask him, whether it be in the nature of the case, that of all the modes in which depredation has been practising in any of his courts, there should have been so much as one, that can ever have been a secret to him?
No time for it, indeed! Of the particular time and words, employed by him in talking backwards and forwards, in addition to the already so claborately-organized general mass, as if to make delay and pretences for it, a thousandth—a ten thousandth part—would have served an honest man anywhere for a reform: a reform which, how far soever from complete, would suffice for striking off two-thirds of the existing mass, and who can say how much more?
Have you any doubt of this, Mr. Peel?—accept, then, a few samples:—
1. Reform the first. (Directed to the proper person.) Order in these words: Charge for no more days than you attend. Number of words, eight. At the Master’s office, off go two-thirds of the whole delay, and with it, of the expense.
2. Reform the second. Text: On every attendance-day, attend ten hours. Paraphrase: Attend these ten, instead of the five, four, or three, on which you attend now. For your emolument, with the vast power attached to it, give the attendance which so many thousand other official persons would rejoice to give for a twentieth part of it.
3. A third reform. In the year there are 12 months: serve in every one of them. Months excepted for vacation, those in which no wrong that requires redress is practised anywhere.
4. A fourth reform. You are one person: and clerk of your’s, another. The business of any clerk of your’s is to serve with you, not for you. Serving by another is not serving, but swindling.
Small as is the number of words in the above proposed orders, anybody may see how many more of them there are than are strictly needful to the purpose of directing what it is desired shall be done.
Numerous are the reforms that might be added: all of them thus simple; many of them still more concisely expressible.
Oh, but the learning necessary! the recondite lore! fruit of mother Blackstone’s twice twenty years’ lucubrations! Learning indeed! Of all the reforms that have been seen, is there a single one that would require more learning than is possessed by his lordship’s housekeeper, if he has one, or any one of his housemaids?
Wisdom necessary for anything of all this? Oh hypocrites! nothing but the most common of all common honesty.
Of those, whom, because unsuccessful poor and powerless, men are in the habit of calling swindlers, the seat—that of many of them at least—is in the hulks: of those hereby supposed swindlers, whom, because rich and powerful, no man till now has ever called swindlers—the seat—the seat of ten of them at least—is in the House of Lords. As between the one class and the other, would you know in which, when the principle of legitimacy has given way to the greatest-happiness principle, public indignation will press with severest weight? Set them against one another in the balance.
1. Quantity of mischief produced—is that among the articles to be put into the scale?
Nothing, in comparison, the mischief of the second order: nothing the alarm produced by the offence of him whose seat is in the hulks. Against all such offences, each man bears what, in his own estimation, is little less than an adequate security—his own prudence: a circumstance by which the swindler is distinguished, to his advantage, from the thief. No man can, for a moment, so much as fancy himself secure against the hand of the swindler, if any such there be, whose seat is in the House of Lords. United in that irresistible hand, are the powers of fraud and force. Force is the power applied to the victim; fraud, the power applied to the mind of the public; applied as, with but too much success, it has been hitherto, to the purpose of engaging it to look on unmoved, while depredation, in one of its most shameless shapes, is exercised under the name of justice.
2. Unpremeditatedness—is it not in possession of being regarded as operating in extenuation of moral guilt? Deliberateness, as an aggravation? Deliberateness, does it not, in case of homicide, make to the offender the difference between death and life, under the laws of blood so dear to honourable gentlemen noble lords and learned judges? Of those swindlers, whose seat is in the hulks, how many may there not be, whose delinquency may have been the result of a hasty thought begotten by the craving of the moment? Answer and then say—of the swindler, if any such there be, whose seat is in the House of Lords, the offence, is it not the deliberate, the regularly repeated, the daily repeated, the authentically recorded practice?
3. Quantity of profit made—is that among the circumstances that influence the magnitude of the crime? For every penny made by the swindler whose seat is in the hulks, the swindler, if any, whose seat is in the House of Lords, makes 6s. 8d.: six-and-eight-pence? aye, six-and-eight-pences in multitudes.
4. Indigence—is it not in possession of being regarded as operating in extenuation of moral guilt? All have it of those whose seat is in the hulks. No such extenuation, but on the contrary, the opposite aggravation have they, if any, whose seat is in the House of Lords.
5. Uneducatedness—is it not in possession of being regarded as operating in extenuation of moral guilt? Goodness of education, or, at least, the means of it, as an aggravation? The extenuation, you have in the case of those whose seat is in the hulks: the aggravation, in the case of those, if any, whose seat is in the House of Lords.
6. Multitude of the offenders—does that obliterate the crime? Go then to the hulks and fetch the swindlers who serve there, to sit with their fellows, if such there be, who serve in the House of Lords.
7. Long continuance of the practice—is it in the nature of that circumstance to obliterate the crime? Much longer have there been swindlers out of the Master’s office than there can have been in it, The earliest on record are those who “spoiled the Egyptians:” but with them it was all pure fraud: no force was added to it.
Learning—appropriate learning—of demand for this endowment, assuredly there is no want: and not only for this, which every lawyer speaks of, but for original and originating genius—an endowment which no lawyer ever speaks of. Adding to the mass in the Augean stable, every ox had wisdom enough for—every ox that ever was put into it: to employ a river in the cleansing of it, required, not the muscle, but the genius of a Hercules.
Wisdom? Yes, indeed: but of what sort? Not that which is identical with, but that which is opposite to, Lord Eldon’s. Years spent in the pursuit of those which we have seen to be the actual ends of judicature, four-and-twenty. True: but by every year thus spent, a man will have been rendered, not the more, but so much the less apt, for pursuing the ends of justice. Lord Eldon serve the ends of justice? He knows not even what they are. Ask him what they are—at the end of half an hour employed in talking backwards and forwards, he will conclude with his speech in ex-parte Leicester, and the passage that has been seen in it. Ask what are the ends of justice? Thirty paces are more than I need go, to see boys in number, any one of whom, when the question had found him mute, or worse than mute, could answer and take his place.
Yes: in that man, in whom the will has been vitiated as his has been, the understanding—sure as death—has been vitiated along with it. Should a pericramum such as his ever meet the hand or eye of a Gall or a Spurzheim, they will find the organ of justice obliterated, and the organ of chicane,—a process from their organ of theft grown up in the place of it.*
If I misrecollect not, this section has been referred to for something to be said, as to the profit capable of being derived from the source here spoken of: if so, the reader’s indulgence must be trusted to for a respite, till the entire of the judges’-salary-raising measure has been found ripe for a view to be taken of it.
HOW KING GEORGE’S JUDGE’S IMPROVED UPON THE PRECEDENT SET BY KING CHARLES’S IN THE CASE OF SHIP-MONEY. See above, § 9.
The improvement was an altogether simple one. The pocket, which received the produce of the tax imposed by King Charles’s judges, was the King’s. The pocket, which received and receives the produce of the tax imposed by King George’s judges, was and is their own.
Now for consistency—now for the use of this same principle as a precedent: a precedent set, and with this improvement, in the seats and sources of what is called justice, and thence offered to the adoption of the other departments. But what applies to this purpose will be better understood when the consummation given to the system by the pending measure comes to be brought to view.
What they did, they contented themselves with doing, as it were, by the side of parliament: giving, indeed, their sanction to the operations of an authority acting without parliament,—but not, of their own authority, taking upon themselves to obstruct and frustrate the operations of parliament. Never did they levy war against the authority of parliament: never did they make known by express terms, that whatever parliament had ordained should, as they pleased, go for anything or for nothing: never did they adjourn obedience sine die: never did they say—“A practice having prevailed . . . contrary to an act of parliament . . . it would be better to correct it in future, not in that particular instance.”†
HOW TO BE CONSISTENT, AND COMPLETE THE APPLICATION OF THE SELF-SERVING PRINCIPLE.
Now as to consistency.—You, Lord Eldon, you who practise consistency,—you, Mr. Peel, you who admire it,—go on as you have begun. Assisted by your official instruments, you have planted in the statute-book, after having established it in practice, the self-serving, the self-corrupting, the self-gorging principle. You have rooted it in one department: plant offsets from it in the others. You have covered with it the field of justice: go on with it, and cover with it the field of force.
Repair, in the first place, the ravage so lately made by the fabled dry-rot; that dry-rot which, not content with timber, rotted the china and the glasses. Give to the Duke of York the power of settling the pay of his subordinates, and levying, by his own order, the amount of it. . . . What! do you hesitate? Not to speak of loyalty, all pretence, then, to consistency is at an end with you. Dignity is, in your creed, the one thing needful: your judges are brimful of it, at least if it be in the power of gold to make them so. So far, “everything is as it should be.” But the commander-in-chief—not to speak of the heir to the crown—has he not, in his situation, demand enough for plenitude of dignity? And forasmuch as, in your mathematics, Mr. Robinson—applied to administration of justice, aptitude is as dignity,* —say, if you can, how the same proposition should fail when applied to the still more dignified function of wielding military force?
Apply it next to the navy. For the benefit of Lord Melville and his Croker, give legality to ship-money, as, for the benefit of Lord Eldon and his Abbott, you have given it to extortion and denial of justice. Legalizing that mode of supply, now in the 19th century, you will add to it the improvements you have found for it in your own genius and your own age. You will not, as did the creatures of Charles I. make the faux pas of putting the produce into the King’s pocket. No; you will remember what that experiment cost his Majesty’s predecessor. You will, if you can get leave of envy,—you will put it into the pockets of Lord Melville, Mr. Croker, and their friends; and thus, in the navy department likewise, “will everything be as it should be.”
Rhetoric and fallacy all this (says somebody.) Fallacy? Not it, indeed: nothing but the plainest common sense. Suffer not yourself to be blinded by one of those fallacies which timidity and self-distrust are so ready to oppose to indisputable truth. Say not to yourself, all this is strong, therefore none of it is true.
What I do not say is, that, in the two supposed cases, the mischief of the application is as great as in the real one.
What I do say is, that the principle would not be different. The principle different? no: nor the course taken more palpably indefensible.
HOW LORD ELDON PLANNED AND ESTABLISHED, BY ACT OF PARLIAMENT, A JOINT-STOCK COMPANY, COMPOSED OF THE WESTMINSTERHALL CHIEFS, AND DISHONEST MEN OF ALL CLASSES.
In general, joint-stock companies are no favourites with Lord Eldon; but general rules have their exceptions.
That between dishonest men of all classes, and judges taking payment to themselves out of a fund common to both, the strictest community of interest has place, has been proved, if anything was ever proved, over and over. A tax, into what pocket soever the money goes, cannot be imposed on judicial pursuit, but to all who cannot advance the money, justice is denied, and all those who fail to do what has thus been rendered impossible to them, are delivered over to injury in all shapes, at the hands of all persons who are dishonest enough to take advantage of the licence so held out. A tax, into what pocket soever the money goes, cannot be imposed on the necessary means of judicial defence, but it offers, to all who can advance the money, and are dishonest enough to accept the offer, an instrument, wherewith, by the power of the judges, yet without their appearing to know anything of the use thus made of it, injury, in almost every imaginable shape, may be inflicted,—inflicted with certainty and impunity, and the correspondent sinister profit reaped, at the charge of all those who are not able to purchase the use of that same instrument for their defence. Thus, in so far as the produce of the exaction goes into the judge’s pocket, the interest of the dishonest man cannot, in either of those his situations, as above, be served, but the interest of the judge is served along with it.
Of a partnership contract, whatever else be among its objects, one object as well as effect, is the establishing a community of interest between the several members: and, if the persons acting so described are not dishonest; and if, between them and the judge in question, a community of interest is not formed; let any one say, who thinks he can, in what more indisputable way it is in the power of man to be dishonest; and whether, between such a set of men and a set of dishonest judges, it would be possible for community of sinister interest to be formed.
Not less difficult will it be found to say, how any man, judge or not judge, can fail to be dishonest, who, receiving money in proportion, consents, and with his eyes open, to the habitual promotion and production of injury in all imaginable shapes, in both or either of the situations described as above.
True it is that, in general, joint-stock companies, any at least that can be named on the same day with this for magnitude, have not been formed without a charter: and that, on the occasion here in question, no charter has been employed. Not less true is it, that in the establishment of other joint-stock companies, the power of parliament has been employed; and that, in the establishment of the joint-stock company in question, that hand, so superior to all morality, has, in the manner shown in § 13, most diligently and effectually been employed. In the concession of a charter, the hand of the Chancellor is regularly employed: and, in the passing of the acts of parliament in question, it has been shown, how that same learned hand has not been less primarily and effectually employed.
Such being the partnership, now as to the terms of it. A species of partnership as well known as any other is,—A. finds money; B. skill and labour. Of the partnership here in question, such are the terms.
Head of the firm, beyond all dispute, Lord Eldon. Found by him, in by far the greatest abundance, skill, labour, power, and example. Looked for by him, and received accordingly, profit in correspondent abundance. Behold, then, the firm of Eldon and Co. By what other name can the firm, with any tolerable degree of propriety, be denominated?
Apprised of the existence of this partnership, Judge and Co. is the denomination by which, for I forget what length of time—some thirty or forty years probably—in print as well as in conversation, I have been in the habit of designating it: not a pen, not a voice, having ever raised itself to controvert this undeniable truth. But though established by intrinsic power—by that power which is so much in the habit of setting at nought that of parliament—never, till Lord Eldon stood up, and with so much ease carried the matter through as above, was this Coryphæus of joint-stock companies established by an express act of parliament.
One all-embracing and undeniable truth, when the public mind is sufficiently familiarized with it, will remove doubts and difficulties in abundance; it will serve as a key to everything that, in this country, has ever been done in the field of judicial procedure. From the Norman conquest down to the present time, diametrically opposite to the ends of justice have been the actual ends of judicature: judicial establishment and judicial procedure included, but more especially judicial procedure. Paid, as judges have been, by fee—paid by taxes, the produce of which has all along been liable to be augmented, and been augmented accordingly by themselves, at no time could the system have been in any better state. Suppose that, in those their situations, and that in the most barbarous times, judges would have for the end of action the happiness of suitors? As well might you suppose that it is for the happiness of negroes that planters have all along been flogging negroes; for the good of Hindoos that the Leadenhall-street proprietors have all along been squeezing and excoriating the sixty or a hundred millions of Hindoos.
HOW THE KING’S CHANCELLOR EXERCISED DISPENSING POWER.
To those who have read §§ 9 and 10, or § 9 alone, this can be no news. But of the nature and magnitude of the dispensing power thus assumed and exercised by Lord Eldon, conception may be helped by a few words more.
James the Second and his advisers operated openly and rashly. Prerogative in hand, they ran a tilt against parliament law. Lord Eldon was Lord Eldon. In a cause of no expectation, out of sight of all lay-gents,—out of sight of all men but his co-partners in the firm, of which he is the head,—he laid down the fundamental principle. When, under a so unexpected opposition, his good humour, habitual and pre-eminent as it is, forgot itself for a while,—not so his prudence. Taking instruction from the adversary, he made a full stop, nor, till the impediment ceased, could he be made to move a step, by all the importunity we have seen employed, in the endeavour to urge him on towards the consummation of his own schemes.
Still out of the sight of lay-gents, when, on the cessation of the interregnum, he remounted the throne, and, like Louis XVIII. reaped the benefit of whatever had been done for the consolidation of it by the usurper,—the obstructor, persevering, as we have seen him, being for the time dispirited by the rebuff received from Lord Erskine, under the tuition of the learned Jack-of-both-sides,—still, he imposed not any fresh tax, contenting himself with increasing—in the manner and to the extent, samples of which have been seen in § 2—the produce of those he found established. Nor was this the whole of his labour or of his success: for we have seen how (still out of sight of the lay-gents) at times and in ways altogether invisible to unlearned eyes (at what tables, and over what bottles, must be left to imagination) he had succeeded in completely impregnating his Westminster-hall creatures, and, in their several judicatories, giving complete establishment to his plan, as well in principle as in practice.
Then again, when another unexpectable mishap befel him, and the webs, which the united strength of so many learned spiders had, for such a length of time, been employed in weaving, were broken through and demolished altogether by the irruption of one poor hunted fly,—even this shock, severe as it could not but be, did not make him relinquish his high purpose. Bold, where boldness was requisite, pliant where pliancy, all the sacrifice it brought him to was—the accepting from parliament, and that too with improvement, the consummation of the ambitious and rapacious plan, at the commencement of which the nature of the case had obliged him to act, though with all prudent and practicable secresy, against parliament.
Thus much as to the mode—now as to effect: and the extent given to it. James the Second, with his dispensing power, placed a catholic priest in the Privy Council, and a catholic, or no less obsequious protestant fellow, in an Oxford college. John the Second gave the dispensing power, not only to himself but to all his underlings, covering thus, with a so much more profitable power, the whole field of judicature.
Against specific indications such as these, Honourable House and the Old Bailey receive a sort of evidence, which is neither quite so easily obtained, nor quite so efficient when obtained, in the Old Bailey as in Honourable House. It may be called, and, for aught I know, is called, character evidence. Quantity, in pretty exact proportion to that of the hope and fear, of which he, who is the subject of it, is the object. Quality, determined by the same causes. Colours, two—white and black.
But for my old friend, Mr. Butler, no such evidence as this would have been offered—no such section as this have been written. Nor yet, if in the laud heaped up by him upon Lord Eldon, he had contented himself with using his own hand. But the hand, to which he has assigned this task, is the hand of Romilly: that confidence-commanding and uncontradictable hand, which for this purpose, resurrection-man like, he has ravished from the tomb.
Having, in the course of between thirty and forty years’ intimacy, been in the habit of hearing sentiments of so widely different a tendency, on every occasion, delivered in relation to this same person,—silence, on an occasion such as the present, would have been so little distinguishable from assent, that I could not sit easy without defending myself against what might otherwise have appeared a contradiction, given to me by my departed and ever-lamented friend.
In relation to Lord Eldon, I have no doubt of Romilly’s having used language, which, at a distance of time, and for want of sufficient discrimination, might naturally and sincerely enough, by a not unwilling hand, have been improved into a sort of panegyric thus put into his mouth. But, by the simple omission of one part of it, the strictest truth may have the effect of falsehood.
With a transcript of the panegyric in question, or of any part of it, I will not swell these already too full pages. Suffice it to mention my sincere wish, that it may be compared with what here follows.
By my living friend,—my departed friend, I have reason to think, was never seen but in a mixed company: assured I well am, and by the declaration of my departed friend, that between them there was no intimacy. Between my departed friend and myself, confidence was mutual and entire.
Romilly was among the earliest, and, for a time, the only efficient one of my disciples.*
To Romilly, with that secresy which prudence dictated, my works, such as they are, were from first to last a text-book: the sort of light in which I was viewed by him, was, in Honourable House, in his own presence, on an ever-memorable occasion, attested by our common friend, Mr. Brougham.†
Not a reformatiuncle of his (as Hartley would have called it) did Romilly ever bring forward, that he had not first brought to me, and conned over with me. One of them—that in which Paley’s love of arbitrary power was laid open—was borrowed from my spiders, under whose covering they may still be found. The project so successfully opposed by Lord Eldon’s Sir William Grant—the endeavour to prevail upon honourable gentlemen to divest themselves of the power of swindling in their individual capacities,—was, to both of us, a favourite one. Nothing of this sort could ever come upon the carpet, but the character of Lord Eldon came of necessity along with it: a few lines will give the substance of volumes. The determinate opposer of everything good; the zealous, able, and indefatigable supporter of everything evil, from which, to the ruling one or the ruling few, reputed good, in any the smallest quantity, at the expense of the many, appeared derivable.
“Well! and what chance do you see of the evil genius’s suffering it to pass?” This, on one part was the constant question. “Why . . . . just now, things are so and so:” stating, or alluding to, some hold, which, at the moment, he thought he might have upon Lord Eldon. A favourable circumstance was—that, though regarding the M. P. with the eye with which he could not but regard one of the most troublesome of his political opponents,—the Chancellor—such, in his estimation, was the legal knowledge and judgment of Romilly—was in the habit of paying to the arguments of this advocate not less, but even more, deference, than, in the eyes of the profession, was always consistent with justice, so at least I have heard, over and over again, from various professional men. In Romilly’s acquirements and character he beheld a leaning-stock, the value of which he knew how to appreciate.
Now for the like, through channels less exposed to suspicion:—
“The state of the court of Chancery is such, that it is the disgrace of a civilized society.” These are the words furnished me, in writing, by a friend, as among the very words used by Romilly, but a few months before his death, in a mixed company. It was at a place which, for several days of his last autumn (a place I occupied in Devonshire,) afforded to the relator various free conversations, besides those at which I was present.—General result:—“Lord Eldon himself the cause of many of the abuses; of the greater part of the others, the remedy always in his own hands.”
“If there is a hell, the court of Chancery is hell.” Words these, given as the very words uttered by Lord Erskine but a few weeks before his death, in conversation with another person, from whom I have them under his own hand.
Both relators most extensively known, and not more known than trusted. On any adequate occasion, both papers should be visible.
Judex à non judicando, ut lucus à non luendo, the sort of service of all others for which Lord Eldon is not only most eminently but most notoriously unfit,* is the very service for the performance of which his unexampled power may have been originally placed, but if pretended, so falsely pretended, to be still kept in his hand.
This being premised, and admission made of the facility with which, for purposes such as have been brought to view, he can wrap his misery-breeding meaning up in clouds, such as, while transparent to accomplices and natural allies, shall be opaque to all destined victims,—I must, for shortness, refer my readers to Mr. Butler’s panygeric. Sending them to a work which has already had ten times as many readers as any of mine can look to have, I secure myself against the consciousness of injustice, and, I hope, from the reproach of it.
I will advance further in my approach to meet him.
On any of those nice points on which, expectation being equally strong and sincere on both sides, the difference between right and wrong being scarce discernible, decisions, were it not for appearances, might, with as little prejudice to the sense of security, be committed to lot as to reflection holding the scales of justice,—on any of these sources of doubt and display, which, in any tolerable system of legislature-made law, a line or two, or a word or two, would have dried up—Lord Eldon, at the expense of years, where another man would have taken days, has given to the amateurs of difficulty a degree of satisfaction beyond what any other man could have given to them: to them, satisfaction; to himself, reputation—instrument of power applicable to all purposes. This, by the having stocked his memory with a larger mass than perhaps any other man (Romilly possibly excepted) of the cases known to have sprung up within the field of equity,—and the having also enabled himself, with correspondent facility, to make application of them to the purpose of each moment, whatsoever be that purpose, whether it be to lead aright, to mislead, or to puzzle and put to a stand, himself or others.
So much for intellectuals: now for morals. Beyond all controversy,—recognised not less readily by adversaries than by dependents, one politico-judicial virtue his Lordship has, which, in his noble and learned bosom has swelled to so vast a magnitude, that, like Aaron’s serpent-rod, it shows as if it had swallowed up all the rest. In the public recognition of it, trembling complaint seeks an emollient for vengeance; decorous and just satire, a mask. After stabbing the Master of the Abuses through and through with facts, Mr. Vizard takes in hand the name of this virtue,—and, innuendo this is the only one that can be found, lays it like a piece of gold-beater’s skin on the wounds. That which beauty, according to Anacreon, is to woman,—courtesy, according to everybody, is to Lord Eldon: to armour of all sorts—offensive as well as defensive—a matchless and most advantageous substitute. With the exception of those, whom, while doubting, he is ruining, and, without knowing anything of the matter, plundering,—this it is that keeps everybody in good humour: everybody—from my lord duke, down to the barrister’s servant-clerk. Useful here, useful there, useful everywhere,—of all places, it is in the cabinet that it does knight’s service. It is the court sticking-plaster, which, even when it fails to heal, keeps covered all solutions of continuity: it is the grand imperial cement, which keeps political corruption from dissolving in its own filth. Never (said somebody once) never do I think of Lord Eldon or Lord Sidmouth, but I think of the aphorism of Helvetius—Celui qui n’a ni honneur ni humeur est un courtezan parfait.
When this virtue of the noble and learned lord’s has received its homage, the rest may be most effectually and instructively made known by their fruits. These fruits will be his res gestæ: exploits—performed throughout, or in the course of, his four-and-twenty years’ dominion over the fields of judicature and legislation. Enterprises consummated—enterprises in progress—measures not originating with him, but taken up by him and improved—exploits performed by his own hands, exploits performed by the hands of his creatures, or other instruments;—under one or more of these heads, were any such exactness worth the space and trouble, would some of these exploits be to be entered,—under another or others, others. But, forasmuch as all judicial censure is altogether out of the question, and the space and research necessary for such distinctions altogether unaffordable, they must unavoidably be omitted. Under each head, it will be for the reader, from what he has seen or heard, or may choose to see or hear, to consider whether, and, if yes, how far, the imputation attaches. To improve upon these hastily collected hints, and complete the investigation, would, if performed by a competent hand, assuredly be a most interesting, as well as useful work.
1. Nipping in the bud the spread of improvement over the habitable globe, ruining fortunes by wholesale, and involving in alarm and insecurity a vast proportion of the vast capital of the country, by wantonly-scattered doubts, leaving the settlement of them to a future contingent time that may never come.*
2. Rendering all literary property dependent upon his own inscrutable and uncontroulable will and pleasure.
3. Establishing a censorship over the press, under himself, with his absolute and inscrutable will, as censor: inviting, after publication with its expense has been completed, applications to himself for prohibition, with profit to himself in these, as in all other instances.
4. Leaving the line of distinction between cases for open and cases for secret judicature, for so long as there is any, at all times dependent on his own inscrutable and uncontrovertible will and pleasure, establishing and continually extending the practice of covering his own proceeding with the cloak of secresy.
5. Rivetting, on the neck of the people, the continually pinching yoke of an aristocratical magistracy, by rendering all relief at the hands of the chancellor as hopeless, as, by artificial law expenses, and participation in sinister interest and prejudice, it has been rendered at the hands of the judge.
6. On pretence of heterodoxy, by ex post facto law, made by a single judge for the purpose,—divesting parents of the guardianship of their own children.
7. Injecting into men’s minds the poison of insincerity and hypocrisy, by attaching to pretended misdeeds, sufferings, from which, by an unpunishable and unprovable, though solemn act of insincerity, the supposed misdoer may, in every case, with certainty exempt himself.†
8. In all manner of shapes, planting or fixing humiliation and anxiety in the breasts of all who, on points confessedly too obscure for knowledge, oppose him, or refuse to join with him, in the profession of opinions, in relation to which there is no better evidence of their being really his, than the money and power he has obtained by the profession of them.
9. Pretending to establish useful truth by the only means by which success to pernicious falsehood can ever be secured. Proclaiming, in the most impressive manner, the falsehood and mischievousness of everything that is called religion,—by punishing, or threatening to punish, whatsoever is said in the way of controverting the truth or usefulness of it.
10. Bearding parliament, by openly declaring its incapacity to render unpunishable anything to which the judges, with the words common law in their mouths, shall have been pleased to attach punishment, or take upon them to punish:—thus, by the assumed authority of himself, and those his creatures, keeping men under the rod of punishment, for habits of action, which, in consideration of their innoxiousness, had by parliament been recently exempted from it: as if parliament had not exempted men from declared and limited, but for the purpose of subjecting them to unconjecturable and unlimited punishment. Witness the Unitarians, and all others, who will not, at his command thus signified, defile themselves with insincerity, to purchase the common rights of subjects.
11. Doing that which even parliament would not dare to do: and because parliament would not dare to do it, doing it with no other warrant than this or that one of a multitude of words and phrases, to which one import as well as another may be assigned at pleasure: witness libel, blasphemy, malice, contra bonos mores, conspiracy, Christianity is part and parcel of the law of the land: converting thus at pleasure into crimes, any the most perfectly innoxious acts, and even meritorious ones: substituting thus, to legislative definition and prohibition, an act of ex post facto punishment, which the most consummate legal knowledge would not have enabled a man to avoid, and as to which, in many an instance perhaps, it was not intended that it should be avoided.*
All this—which, under a really-existing constitution, grounded on the greatest-happiness principle, would furnish matter for impeachment upon impeachment—furnishes, under the imaginary “matchless” one, matter of triumph, claim to reward, and reward accordingly.
12. Poisoning the fountain of history, by punishing what is said of a departed public character on the disapproving side—while, for evidence and argument on the approving side, an inexhaustible fund of reward is left open to every eye: thus, by suppression, doubling the effect of subornation, of evidence. This by the hand of one of his creatures: his own hand, without the aid of that other, not reaching quite far enough.
The title Master of the Abuses, which occurs in p. 372, may perhaps have been thought to require explanation. It was suggested by that of Master of the Revels, coupled with the idea of the enjoyments in which he and his have for so many years been seen revelling by the exercise given to the functions of it.
The Mastership of the Revels being abolished, or in disuse—the Mastership of the Abuses appears to have been silently substituted: and Lord Eldon presents himself as having been performing the functions of the office, as yet without a salary: with his Masters in Chancery, serving under him in the corresponding capacity, and on the same generous footing, on the principle of the unpaid magistracy. A subject for calculation might be—at what anno domini the business of all the denominated offices, possessed by those Masters and their Grand Master respectively, will have been brought into the state, into which, under his lordship’s management, that of the Six-clerks has already been brought, together with that of the six offices, with which the future services of his honourable son have been so nobly and generously remunerated?—at what halcyon period these offices will, with the rest, have been sublimated into sinecures, and the incumbents apotheosed into so many Dii majorum or Dii minorum gentium of the Epicurean heaven?
To help conception, a short parallel between the noble and learned Lord, and his noble and learned predecessor Jefferies, may be not altogether without its use. General Jefferies had his one “campaign:” General Eldon as many as his command lasted years.—The deaths of Jefferies’s killed-off were speedy: of Eldon’s, lingering as his own resolves. The deaths of Lord Jefferies’s victims were public—the sufferers supported and comforted in their affliction by the sympathy of surrounding thousands: Lord Eldon’s expired, unseen, in the gloom of that solitude, which wealth on its departure leaves behind it. Jefferies, whatsoever he may have gained in the shape of royal favour—source of future contingent wealth—does not present himself to us clothed in the spoils of any of his slain. No man, no woman, no child, did Eldon ever kill, whose death had not, in the course of it, in some way or other, put money into his pocket. In the language, visage, and deportment of Jefferies, the suffering of his victims produced a savage exultation: in Eldon’s, never any interruption did they produce to the most amiable good-humour, throwing its grace over the most accomplished indifference. Jefferies was a tiger: Eldon, in the midst of all his tears, like Niobe, a stone.
Prophet at once and painter, another predecessor of Lord Eldon—Lord Bacon—has drawn his emblem. “Behold the man,” says he, “who, to roast an egg for himself, is ready to set another’s house on fire!” So far so good: but, to complete the likeness, he should have added—after having first gutted it. One other emblem—one other prophecy:—is it not written in the Arabian Nights’ Entertainments?—Sinbad the Sailor, Britannia: Old Man of the Sea, the Learned Slaughterer of Pheasants, whose prompt deaths are objects of envy to his suitors. After fretting and pummelling, with no better effect than sharpening the gripe—the Arabian slave, by one desperate effort, shook off his tormenting master. The entire prophecy will have been accomplished, and the prayers of Britannia heard, should so happy an issue, out of the severest of all her afflictions, be, in her instance, brought to pass.
Under Lord Eldon, Equity an Instrument of Fraud and Extortion.—Samples continued.
While writing what is above, came to hand a “Review of Chancery Delays,” &c.: signature, “The Authors.” When what they say is seen, the reason for such their concealment will be sufficiently manifest. Read this work of theirs, whoever you are,—you who, thinking for the public, have any regard for justice: so rich the mass of abuse, it not merely denounces in general terms, but spreads out in detail, bringing it at the same time within the conception of non-lawyers: the matter ranged under some nine or ten heads, following one another in the chronological order of the proceedings in a suit.
“Proper subject of every honest man’s indignation,” according to them (p. 42,) not only “the system which allows,” but “the judges who encourage such conduct:” and, with a little attention, every solicitor who has had twenty-five years’ practice, and a few over, in the equity courts, as well as many a man who has had none, will be able to draw the line, and to say to himself, whether, by any former judge, anything like so much encouragement has been given to the sort of conduct therein held up to view. Ask, with so many learned gentlemen, whether it be to Lord Eldon, or to the system, that the phenomena are due? Ask first, whether it is to the father or to the mother that the birth of a child is due?
From this most instructive publication, take a few hastily-picked-up samples. Pages 48, 49:—1. Master’s attendance (as everybody knows) never more than one hour in one day in the same cause.
2. Between attendance and attendance, distance commonly three or four days—frequently a week.
3. For every such actual attendance, payment for that and two others exacted by the Master, he declaring in writing that on both days he has attended; whereas on neither day has he, or anybody for him, attended.
4. For each such falsely alleged, and unjustly charged attendance, fees exacted by the Master, not only for himself, but for every solicitor employed in the suit, a separate one; there being in every equity suit parties in any number, having, as many as please, each of them a separate solicitor.
5. Hours of such attendance in a day seldom more than five (other accounts generally make it less.) Per Mr. Vizard—(see above, § 2, p. 350,) with “some exceptions” only, not more than three.
6. Months in which such attendances are to be had, out of the twelve, not more than seven.
Page 52. Recapitulation of the means of delay employable in ordinary, over and above the additions employable in extraordinary cases: to wit, employable by dishonestly-disposed men on the two sides of the suit respectively, thus enabled and invited by Lord Eldon, with or without predecessors for stalking-horses, to carry that same disposition into effect.
I. By dishonesty on the defendant’s side; to which side, in a common law-suit, dishonesty is of course most apt to have place:—
II. By dishonesty on the plaintiff’s side; that is to say, on the part of him who, at common law, had been on the defendant’s side; one half of the business of equity consisting in stopping or frustrating the application of the remedy held out by common law; and at any stage, down to the very last, this stoppage may be effected.
N. B. This combination of two sorts of judicatories, proceeding on mutually contradictory principles, is by Lord Eldon, and by so many others, professed to be regarded as necessary to justice.
Note that (as has been often stated, and never denied,) delay on the plaintiff’s side, as here, has been in use to be employed as a regular and sure source of profit by dishonest men with other men’s money in their pockets, where the quantity of it in the shape of capital has been deemed sufficient, by means of the interest or profit on it, to pay for the delay sold by the judges of the common law and equity courts together: they, with their creatures and other dependents in office, and their friends and connexions in all branches of the profession, sharing, by means of the fees, with these dishonest men, in the profit of their dishonesty.
Comes in, at the same time, “Letter to Mr. Secretary Peel on Chancery Delays, by a Member of Gray’s Inn.” Pages, 25.
1. Page 20. Subject-matter of the most common and seldomest-contested species of suit—account of a testator’s estate:—
1. Number of useless copies taken of said account, ten.
N. B. Cost of each, ten-pence for every ninety words.
2. Pages 15, 16, 17. Under Lord Eldon, irrelevance, technically styled “impertinence,” thence useless lengths of pleadings perpetually increasing—“laxity of pleadings, quantity of impertinent matter—a subject-matter of general complaint and general observation by Lord Eldon.” Punishment being all this while unexampled; encouragement in the shape of reproof in the air, or threats, of which it is known they will never be executed, are at the same time frequent. Before Lord Eldon, the practice was, to saddle the counsel with costs. Per the authors, as above (p. 350,) by “late decisions this abuse has received positive encouragement and increase.”
Pages of all five pamphlets, taken together (Mr. Vizard’s included,) 157. Compressed into perhaps a third of the number, the substance would compose a most instructive work. By detaching from the abuses the proposed remedies, the compression might perhaps be aided: the remedies, in a narrow side column, or at bottom, in form of notes.
But neither should the defences, whatever they are, pass unexamined: for of the charges, with such premiums for defence, whatsoever is passed over unnoticed or slurred over, may, with unexceptionable propriety, be regarded as admitted.
Lord Eldon Squeaking.
Drama (not to say farce,) “The Courts of Law Bill.” Time, June 28, 1825. Editor, Globe and Traveller. Scene, Right Honourable House. Enter Lord Liverpool, Prime Minister, bill in hand. Lord Eldon, Chancellor, in the back ground. Motion by Lord Liverpool for proceeding in the bill. Enter Lord Grosvenor with a digression—a dissertation on sinecures: Lord Liverpool, in answer:—determined to save fees from commutation during the incumbency of the present incumbents; determined to save the head fee-eater from all hardships imposed on inferior ones: determined to give the puisne judges the proposed £5500 a-year, because there were others, who, for doing less, were paid more. Mr. Robinson having previously (to wit, in Honourable House) demonstrated the necessity of the increase, appropriate aptitude being, in his mathematics, as dignity, and dignity as opulence: the proof being composed of repetitions, ten in number (for they have been counted,) of the word dignity.
Whereupon, up rises Lord Eldon, finger in eye, answering Lord Grosvenor’s digression, with a digression on calunmy and firmness. Addresses, two: one to the people, the other to noble lords. For better intelligibility, behold these same addresses, in the first place, in plain English: after that, for security against misrepresentation, in Lord Eldonish.
1. Lord Eldon to the people, in plain English.—Have done! have done! Let me alone! Nay, but don’t teaze me so. You had best not; you won’t get anything by it. This is not the way to get me out, I can tell you that. Come now, if you will but let me alone, I’ll go out of my own accord. I should have been out long ago, had it not been for you. It’s only your teazing me so that keeps me in. If you keep on teaze, teaze, I’ll never go out: no, that I won’t.
Note that this was on the 28th of June 1825: ten days after the day on which, without authority or expectation on the part of the author, the editor of the Morning Chronicle, with whose stripes the noble and learned back is so well acquainted, had given an article on these indications.
The original in Lord Eldonish.* —“Perhaps it is thought that this mode of calumnious misrepresentation is the way to get me out of office. They are mistaken who think so: I will not yield to such aspersions; nor shrink from asserting what I owe to myself. Had I been treated with common justice, I should not, perhaps, have been Lord Chancellor this day; but, I repeat it, I will not be driven out of office by calumnious attack. Let me only be treated with common justice, and my place shall be at any man’s disposal.”
Calumnious indeed! Look back, cautious and justice-loving reader—look back at the indications: see what any of them want of being proofs: see whether anything but a formulary or two is wanting to render them proofs, and conclusive ones. Suppose, for argument’s sake, the defendant guilty, and see whether, on that supposition, anything more convincing than what is there brought to view, could have been adduced. Say whether, in case of mis-statement anywhere, there can be any ground for regarding it as wilful: any ground for attaching to it any such epithet as calumnious.
2. Lord Eldon to Lordships in plain Enlish.—Help! help! help! Going, going! Can’t stand it any longer. What! nobody lend me a hand?—nobody speak a word for me? Do not you see how it is with me? What! and will you turn against me? Better not: I can tell you that. You’ll be all the worse for it. When I am put down, it will be your turn next. What will become of your privileges?—think of that! I’ll tell you what, so sure as they take away my seals, so sure will they take away your privileges.
Squeaking, staggering, blustering, crying out for help—all in a breath! What an exhibition!
Original in Lord Eldonish.—“The feelings and fate of an individual are in themselves of small importance to the public, and I may be sacrificed to the insults I daily receive. But I beg noble lords to reflect, that I may not be the only sacrifice. If the object is, as it appears to be, to pull down the reputations, and throw discredit on the motives and conduct of men in high official situations,—if every man who occupies a high situation in the church” [turning of course to the bishops’ bench] “in the church or state, is to become the object of slander and calumny, then your lordships may lay your account with similar treatment, and be convinced that your privileges or power cannot long be respected, when such characters have been sacrificed.”
N. B. At what words the tears began to flow is not reported. When a crocodile comes on the stage—Tears, tears, should be added to the Hear! hears!
No, my weeping and fainting and firmness-acting lord. How purblind soever the eyes you are accustomed to see around you, blindness is not yet so near to entire, as to make lordships see no difference between your seals and their privileges. Their privileges! Who is it that is to take away these same privileges? The king? or the people? or the pope of Rome? Your seals! Yes, the king can take away these pretty playthings of yours, and not improbably will, so soon as in his estimation there will be more uneasiness from keeping them where they are, than from placing them elsewhere. But Lords’ privileges! they are a sort of a thing not quite so easily disposed of. To bring his hand in, his Majesty will first take away from himself his own prerogatives.
The people? Yes: supposing guards and garrisons were all annihilated in a day, the people, that is to say, a mob, might not find much more difficulty in dealing with these accoutrements of yours than the king would: after burning your bags, they might throw your seals into the Thames, where your predecessor, Littleton, threw his. Yes: all this a mob (for this is what you always have in view when you speak or think of the people) might indeed do. But could they either burn or throw into the Thames their Lordships privileges?
As to the Pope, I say nothing of him here: what regards him, belongs to Catholic Emancipation.
Seriously, it was found impossible, by anything but extravagance, to comment upon such extravagance. What must have been the state of that mind which could rely upon it as argument?
In this place, without aid either from witchcraft or from treachery, I had actually gone on and given the substance of the argument, with which, in cabinets and over bottles, the noble and learned lord has for these five-and-twenty years, and more, been occupying himself in the endeavour—no very difficult one, it must be confessed—to keep up, and if possible to increase, the aversion to improvement in so many shapes, and to reform in every shape. But relevancy seeming questionable, and mischief from overweight unquestionable, the papers have been put aside.
The Indications are before the reader: some original, others copied. In both cases, how determinate they are, he can scarcely have failed to remark. As well as the proofs, he shall now have before him the answers. From a clear conscience, accompanied by a clear and well-exercised conception, they would have been correspondently determinate. In generals, at any rate, and in particulars, according as time and occasion admitted, and importance required, every charge would have been noticed; and, lest omission should be taken for confession, no one left altogether without notice.
So much as to what the answers might have been, and, in the momentarily supposed case, would have been. Behold now what, in the actual case, they are.
First, as to the general heads of defence. They will be found composed of uncharacteristically-vituperative matter, applied at every turn to the accusations, and expressed in these terms:—
What the noble and learned defendant’s perturbation did not permit him to perceive is, how strongly this sort of language smells of “the Old Bailey:” of the place he was looking to be “sent to by their Lordships,” (as per Globe, June 21, 1825,) there to be “put to death:” and that when a man can find nothing to say that shall tend to his exculpation, this sort of unmeaning outcry is what he vents his anguish in, rather than be seen to make confession in the shape of silence.
So much for generals. Follow now all the several specific attempts at defence, with an observation or two upon each.
Lord Eldon.—I. “From the accounts which have been furnished to me of my emoluments as Lord Chancellor from those who best know the amount.” [Lordship himself being nobly careless of all such things] “apart from my income as Speaker of the House of Lords, I am happy to say, that the Lord Chief-Justice of the King’s Bench has received a larger sum from his office: I speak from the average accounts of the last three years.”
Observations.—1. What is this to the purpose? Not of the quantum do we complain, but of the sources: of which sources he dares not say a syliable.
2. Whatever it be that you receive, is it the less because you receive it from a number of places instead of one?
3. Of the patronage, nothing said: whereas, from a small portion of it, you receive, in the person of your son, according to the undisputed calculation of Mr. Miller,* £3,500 a-year, and, unless in case of untimely death, will receive in the whole, £9000.
4. What is it to the purpose what the Chief-Justice has? If the emolument of the man in question is excessive, does the greater excess of another man’s make it less so?
5. Since he knows, then, what his emoluments are, why will he sit to be thus badgered, rather than produce them? Why, unless it be because they would be seen not to agree with the account thus given of them? and because he fears that, if honourable gentlemen knew the whole amount, they would grudge giving him full value for it?
Lord Eldon.—II. “And I will further say, that, in no one year since I have been made Chancellor, have I received the same amount of profit as I enjoyed while at the bar.”
Observations.—1. The same? No, most probably not; for, so long as there is a far-thing’s-worth of difference, this is strictly true. But how is anybody to know whether it is?
2. If everybody knows it, what would it be to the purpose?
3. While the Chancellor declares himself happy that the Chief-Justice’s profits out of other men’s misery are so great, may a suitor be permitted to confess himself not quite so happy, that Barrister’s profits, drawn by insincerity out of the same impure source, are, if so it really be, so enormous?
Lord Eldon.—III. “Had I remained at the bar, and kept the situation I held there, I solemnly declare I should not have been a shilling the poorer man than I am this moment, notwithstanding my office.”
Observations.—1. Believe who can: evidence, none. Disprobative counter-evidence, as to the official side of the account, obstinacy of concealment: evidence, circumstantial indeed, but not the less conclusive.
But, possibly, here as before, of his cluster of offices, with their emoluments, he shuts his eyes against all but one: and thus, by a virtual falsehood, thinks to keep clear of a literal one.
2. Again—what is all this to the purpose?
Oh! had he but kept to the bar—or, instead of the bench, been sent to that bar to which, as above, he so lately looked to be sent by their lordships on his way to another place—what a waste of human misery would have been saved! of human misery, for which who ever saw or heard him exhibiting any the slightest mark of regard? Men, women, and children—widows and orphans—being treated by him as if composed of insentient matter, like the stones from which the gold exacted from them was extracted.
Lord Eldon.—IV. “No charge of delay can fairly be brought against me.”
Observations.—1. Now well done, Lord Eldon! To a host of witnesses, continue to oppose a front of brass!
2. Not to speak of the mountains of manufactured delay opened to view by the samples, as if by a particular providence,—in opposition to this plea of not guilty, behold, prepared by anticipation, six months antecedently to the pleading of it, a special piece of criminative evidence: a statement, the manifestly trustworthy result of a course of observation, the commencement and continuance of which was a phenomenon not much less extraordinary than the course observed upon. It is here copied, word for word, from a morning paper.* Whence it came from, is unknown: neither to the whole, nor to any part of it whatsoever, has any contradiction been ever heard of.
3. Under the eyes of so vast a posse of retainers, retained by every tie of interest in the defence of this giver of good gifts,—is it in the nature of the case that anything to which the name of misrepresentation could have been applied with any chance of being regarded as properly applied, should in all this time have passed unnoticed?
“Court of Chancery.—(From a Suitor.)—Term ended on Monday: the Lord Chancellor, when he was rising, apprized the gentlemen of the bar and the suitors of the court, that he would not come down till Thursday. His lordship is no doubt entitled to two day’s recreation after his learned labours of a month. In order that the public may duly appreciate those labours, let us briefly review them:—the calculation may appear curious—the time which his lordship sat—the number of cases heard—not decided—and the quantum of relief afforded.
“His lordship commenced his sittings on the 1st November, and from that to the 29th, both inclusive, he sat in court 24 days. In no day but one, did he sit before ten o’clock; on one day only did he remain till three: indeed he could not during term, for, as he has often said, ‘the students should have their dinner.’
“His lordship, out of the 24 days, spent in court 79½ hours!!
“This statement is correct, if the court clerk can be depended on. On two of those short sitting days, his lordship had to attend in council to hear the Recorder’s report of the Old Bailey convicts; on another of them, he rose before twelve o’clock, in indignation that there was no business:—No business in Chancery! On some of the other short days, he was called on business elsewhere. But let us now see how this time was occupied.
“The case of the Rev. A. Fletcher is entitled to the first place in this enumeration. Indeed the flight of Paris with Helen was not destined to give more employment for the Grecian heroes, than the flight of Mr. Fletcher from his Caledonian lassie is to cut out for the gentlemen of the long robe: thus may we fairly exclaim,—Cedant arma toga! In the King’s Bench we had only a skirmish, from which the parties retired æquo Marte. The great fight was reserved for the arena of Chancery: for four days the contending parties fought, and four times did night, or preparations for the students’ dinner, put an end to the contest. On the fifth day,—after hearing from eight counsel nine speeches, the reply included,—his lordship decided that he would not become an officer of police for a Scotch synod, to pull the reverend preacher from the pulpit.*
“This case consumed 17 hours out of 79½. But is it decided? No—the contrary, for his lordship more than once intimated ‘that, if it were worth while by a longer term of suspension to bring the question before the court in a more regular form, his opinion might incline the other way.’ His intimations will not be lost on the synod; therefore, Mr. Fletcher, that you may not be pulled down by the skirts, you had better, like Mawworm, wear a spencer.
“Fourteen hours more were consumed, from day to day, in two cases which were new to the court. These were—petitions, from Latham and Abbots, bankrupts, praying that his lordship, by virtue of the enlarged jurisdiction conferred on him by the new bankrupt law, would grant them their certificate, which the required number of their creditors refused. His lordship, after many observations, referred one to be re-examined by the commissioners, and, to determine the fate of the other, he demanded more papers. The cases of these parties are therefore in statu quo, and we are again fated to listen to half-a-dozen long-winded orations.
“Next after these in point of duration, is to be placed the motion to commit the Glamorganshire canal proprietors, for violating his lordship’s injunction. After hearing eight counsel for ten hours on different days, his lordship decided that four of the defendants were not to be committed; but the liberty of fifth is adhuc sub judice. To balance the mildness of the judgment with a sort of trimming policy, vengeance was denounced against the refractory watchmen; therefore they had better look sharp. Discite justitiam moniti, et non temnere.
“We have now accounted for 41 hours out of the 79½. Of the rest, the old cases of Grey v. Grey, and of Garrick v. Lord Camden, in which no progress was made, took up 5 hours; 5 more were devoted to Hale v. Hale, to determine the sale of mother’s estates, to be commenced de novo; and 10 from day to day were given to the Attorney-General v. Heales; Sims v. Ridge; the matter of Bayles, and the matter of Blackburns; to Honey v. Honey, Wilcox v. Rhodes—appeals from the Vice-chancellor, in the latter of which his honour’s decree was pronounced to be ‘nonsense incapable of being executed.’ Not one of them is a jot advanced.
“Lunatics and the elopement of a ward, took up 2½ hours. The New Alliance company took up 3: and then 9 more were wasted in disputes between counsel and court about priority of motions.
“The opening of the eternal Opera House cases (of which there are now three) took up 3 hours, and the remaining 7 were consumed from time to time on bankrupts’ petitions, and miscellaneous orders.
“To recapitulate the whole, the business and time are balanced thus:—
Lord Eldon.—V. “It is a mistake to suppose, that because the drudgery of some offices is performed by deputies, they are therefore to be called sinecures.”
Observations.—1. Nebulous-gas—confusion-gas—evasion-gas, from the Eldon laboratory. Eldon junior’s six sinecures—four in possession; two more in reversion;—of course here in view. Never, where common honesty is an object of regard—unpunishable swindling, of indignation,—never will they be anywhere out of view.
2. Mark here the division. Business of official situation, drudgery and non-drudgery. Drudgery, doing the business of the office: non-drudgery, receiving and spending the emoluments of it; paying for the doing of the business (unless it be of a particular connexion) no more than a pittance, the smallest that any one can be found to take.
Note that, with few, if any exceptions, when from any one of these offices you have separated the drudgery, you have separated all the business from it. For, laying out of the case those which are judicial, such as the masterships and the commissionerships and the examinerships—the business of them amounts to little or nothing more than ordinary clerk-business, such as copying or making entries under heads: business not requiring a tenth part so much appropriate knowledge and judgment and active talent, as that of an exciseman does.
3. Note, that what his lordship here does, consists in putting a possible case, that those who are eager to lay hold of every supposition favourable to him and his system, may, without proof, set it down in their minds an actual case: an actual case, to a considerable extent exemplified; and in particular, in the instance of the rich cluster of sinecures, out of the profits of which, without troubling himself with the drudgery either of writing or thinking, his honourable son is acting the part of a fine gentleman; and, if rumour does not overflatter him, testifying filial gratitude by good dinners.
4. The possible case is this:—a situation in which one man and no more is placed, though the business of it is more than one man can adequately perform: the business being at the same time of such a nature, as to be capable of being divided into two branches: one, requiring extraordinary appropriate acquirements, the other requiring none beyond ordinary ones; for example, shopkeepers’ clerks’ acquirements. In this state of things, the extraordinary-talent-requiring part of the business is reserved by the principal official person for himself (his appropriate aptitude, considering the dignity of him of whose choice he is the object, being unquestionable:) the no-more-than-ordinary-talent-requiring part, (that, to wit, which is meant by the drudgery) being turned over, or rather turned down, by him to the deputy. Of the thus wisely and carefully made division and distribution, sole object, of course—the good of the service.
5. Now then—supposing an inquiry into this matter included in the inquiries of a House of Commons’ committee, is there so much as a single instance in which any such over-weight of business, together with any such division made, would be found exemplified? Whoever is a layer of wagers, might, without much danger, venture a considerable one to the contrary.
6. In the case of Eldon junior, what I would venture to lay for is—that, of his four places in possession, there is not one, the business of which requires so much appropriate knowledge, judgment, and active talent, as that of an exciseman does; and that there is not one for which he himself does any business other than signing his name, with or without the trouble of looking over the accounts of the deputies (if in name or effect there be any) to wit, for the purpose of ascertaining whether the principal receives the whole of what is his due. And so in regard to the reversions: the existence of which, by-the-bye, is a separate one, and that an abominable and altogether indefensible abuse.
7. True, my Lord. An office, in which for the public service, a something, an anything, is done—is not in strictness of speech a sinecure: though that something were no more than any charity-school boy is equal to; and although it took up but a minute in doing, once out of each of the seven months in a-year, during which your masters (your lordship’s son-in-law included) serve.
8. This being conceded to you, what are you the better for it?
Would you have the amount of the depredation exercised by the maintenance of an office allowed to be executed by deputy? I will give you a rule by which, in every case, you may obtain it. From the sum received by the principal, subtract that received by the deputy or deputies,—the difference is, all of it, depredation: of thus much you may be sure. Whether of this which the deputy or deputies receive, there be any and what part that belongs to that same account, is more than you can be sure of, otherwise than by applying to this case, that matchless criterion of due proportion as between reward and service, fair competition—competition, as in the case of goods sold, and,—under the name of work done,—service, in all shapes, sold to individuals: and, if good in those cases, what should render it otherwise in this?
9. Casting back an eye on the matter thus employed in effecting the explosion of the Eldon gas, I cannot but regret the quantity. If, by any instruction contained in it, the labour of looking into it be paid for, it will be by the applications capable of being made of this concluding rule.
Lord Eldon.—VI. “I will pledge myself to be as active as any noble lord in correcting abuses, but I will perform my duty with a due regard to the rights of others.”
Observations.—1. Pledge himself? Yes: but giving a pledge is one thing—redeeming it, another. In the whole five-and-twenty years, during which this has been swagging, like an incubus, on the breast of justice, in what instance has he ever meddled with abuse in any shape, unless it be by the endeavour to give perpetuity and increase to it?
Not that, as thus worded, this desire amounts to any great matter beyond what he might have credit given him for, and this without any very wide departure from the exact line of truth. Noble Lords,—if in a situation such as theirs it were possible for men to feel any such desire,—would not have far to look for the gratification of it. Your Majesty (said somebody once to a King of Spain who was complaining of ceremonies) is but a ceremony. Your Lordships (the same person might have said to their Lordships) are but an abuse.
As an argumentum ad hominem, nothing against this challenge can be said. But, the organs, for which it was designed, were the ears of noble lords, not the eyes of the public: to which, however, I hereby take the liberty of recommending it. Abuses are neither hares nor foxes. Noble lords are too well born, and under noble and learned lords too well bred, to take any great delight in hunting them.
Lord Eldon.—VII. “The reason why in the present bill there appeared no clause regulating offices in the court of Chancery is—that a commission is now sitting on the state of the court.”
Observations.—1. Now sitting? O yes, and for ever will be, if his lordship’s recommendation to the people is taken by the people, and the operation of teazing ceases or relaxes—Sedet, æternùmque sedebit.
2. A commission? Yes: and what commission? A commission which never could have sat at all—which never could have been thought of at all—had it been supposed that, in either House, there exists any such sense as a sense of shame.
3. An enormous dilatory plea, set, like a gun, in a self-judication system; a transparent veil for corruption: a snug succedaneum to the still apprehended and eventually troublesome inquisition, of a not quite sufficiently corrupt Honourable House,—such is this commission:—a subterfuge, which, more than perhaps all others, has damaged the reputation of the principal, not to speak of the accomplices. In Matchless Constitution, that all-prevading and all-ruling principle, the self-judication principle, has now to that local habitation, which it has so long had, added a name: a name which, so long as the mass of corruption in which it has been hatched continues undissolved, will never cease to be remembered—remembered, in time and place, by every lover of justice and mankind, as occasion serves.
Lord Eldon.—VIII. “I am uncorrupt in office; and I can form no better wish for my country, than that my successor shall be penetrated with an equal desire to execute his duties with fidelity.”
Observations.—1. I am uncorrupt! And so a plea of not guilty was regarded by this defendant as sufficient in his case to destroy the effect of so matchless a mass of criminative evidence, and supersede the need of all justification and exculpative evidence!
Incorrupt? Oh yes: in every way in which it has not been possible for you to be corrupt, that you are. So far, this negative quality is yours. Make the most of it, and see what it will avail you. Remains, neither possessed, nor so much as pretended to, the whole remainder of appropriate moral aptitude, appropriate intellectual aptitude, and that appropriate active aptitude, without which, a man possessed in the highest degree of appropriate aptitude in both those other shapes, may in your situation be, has in your situation been—a nuisance.
Desire! And so, in an office such as that of Chief-Judge, and that but one out of a cluster of rich offices fed upon by the same insatiable jaws, desire is sufficient: accomplishment, or anything like an approach to it, supervacaneous!
Yes: that he does form no better wish for his country—this may be conceded to him without much difficulty: for, whatever be the situation, when a man has been disgraced in it by inaptitude, the least apt is to him, but too naturally, the least unacceptable successor. But, as to the can, this is really too much to be admitted: for, even a Lord Eldon—after rubbing his eyes, for the length of time necessary to rub out of them, for a moment, the motes, which keep so perpetually floating in them in the shape of doubts,—even a Lord Eldon might be able to see that desire and accomplishment are not exactly the same thing; and that, where the object is worth having, desire without accomplishment is not quite so good a thing as desire with accomplishment at the end of it. Put into this Chancellor’s place, his housekeeper, supposing her to have any regard for the money it brings, would have this same desire—which, except the uncorruption, is all he can muster up courage to lay claim to, and which is so much more than can be conceded to him—the desire, in respect of fidelity and everything else, so far to execute the duties of it as to save herself from losing it.
Next to this, comes what has been seen already in his Lordship’s concluding address to their Lordships. Of the visible condition of the defendant, no intimation is given in the report: to judge from what is given, a man who could with such a peroration close such a defence, must have been at the verge of a fainting fit: in which condition he shall, for the present, be left.
[* ]Objection—Among these so styled facts, are matters of law. Answer—The existence or supposed existence of a matter of law, is matter also of fact.
[* ]Of the result of the above-mentioned experience, intimation may be seen in the Théorie des Peines et des Recompenses, first published in French, anno 1811, or in B. I. ch. 8, of the Rationale of Reward, just published, being the English of what regards Reward in French.
[* ]Of the business charged for, as if done by the Master, the greater part, Masters taken together, is done by the Master’s clerk. The officers styled Six-clerks have long ascended into the Epicurean heaven, the region of sinecures: the Masters are jogging on in the road to it. I have known instances of masterships given to common lawyers, to whom the practice of the court was as completely unknown as anything could be.
[† ]Thus exacting, for the Master, payment for that same number of attendances not bestowed; and as to solicitors, not only allowing but forcing them, on both sides—and there may be any number on each side—to receive payment, each of them, for the same number of attendances on his part.
[‡ ]Thus saith the nameless barrister to the Master, who has taken care all this while to know no more of the matter than Lord Eldon does. He is one of the thirteen commissioners, commissioned by Lord Eldon, to inquire, along with Lord Eldon, into the conduct of Lord Eldon.
[∥ ]Though no cause has more than two sides—the plaintiff’s and the defendant’s—yet on each side there may be as many different solicitors as there are different parties, and to the number of them there is no limit.
[* ]By, and for the profit of, the Master.
[* ]“Since writing the above, I have been informed that in one office,a the clerk is not allowed to receive gratuities, but is paid a stipulated salary: and I understand that the business of that office is conducted as well, as expeditiously, and as satisfactorily in all respects, as in other offices. It might seem invidious to say more so.”—Barrister.
[* ]The exception—the meat and drink of small value (need it be said?) speaks the simplicity of the times: roads bad, inns scantily scattered, judges in their progresses in the suite of the monarch, starved, if not kept alive by the hospitality of some one or other, who, in some way or other, “had to do before them.”
[† ]House of Commons paper, 1814. intituled, “Fees in Courts of Justice,” p. 5.—Returns to orders of the Honourable House of Commons, of 31st March and 2d of May 1814: for “A Return of any increase of rate of the fees, demanded and received in the several superior Courts of Justice, civil or ecclesiastical, in the United Kingdom, by the judges and officers of such courts, during twenty years, on the several proceedings in the same, together with a statement of the authority under which such increase has taken place.”
[* ]By Lord Chief-Justice Raymond, or by somebody for him, Bench law was afterwards made to explain and amend this Inn of Court law of the learned serjeant, in addition to judicial law: corruption election bribery was thereby made bribery likewise. See the embroidery as above.
[† ]To Serjeant Hawkins, we see—to Serjeant Hawkins, though he never was a judge—the statute of Edward the Third was not unknown, though so perfectly either unknown or contemned by the host of the under-mentioned judges.
[* ]Since writing what is in the text, a slight correction has come to hand. Not the whole of John the Second’s first reign, only the two last years of it, experienced this disturbance. There was an old sixty-clerk named Barker, who was a favourite at court, and had his entrees. Cause of favour, this—after pining the exact number of years it cost to take Troy, Mr. Scot, junior, had formed his determination to pine no longer, when providence sent an angel in the shape of Mr. Barker, with the papers of a fat suit and a retaining fee. Him the fellowship constituted for this purpose minister plenipotentiary at the court. Upon an average of the two years, every other day, it was computed, the minister sought, and as regularly obtained, an audience: answer, no less regular—“To-morrow.” On this occasion, observation was made of a sort of competition in the arena of frugality between the potentate and his quondam protector, now sunk into his humble friend. Without an extra stock of powder in his hair, never, on a mission of such importance, durst the plenipotentiary approach the presence; consequence, in that article alone, in the course of the two diplomatic years, such an increase of expense, as, though his Excellency was well stricken in years, exceeded, according to the most accurate computation, the aggregate expenditure in that same article, during the whole of his preceding life.
[† ]“On hearing the case ex-parte Leicester, 6th Vez. jun. 429, where it was said, ‘that a practice having prevailed for a series of years, contrary to the terms of an order in court, and sometimes contrary to an act of parliament, it is most convenient to suppose some ground appeared to former judges, upon which it might be rendered consistent with the practice; and therefore that it would be better to correct practice in future, not in the particular instance.’ Whereas the author of these observations thinks that all practice which is contrary to an act of parliament, or to the terms of a standing order of court, originates in corruption, and ought to be abolished in the particular instance complained of, or when, or however, a practice, at variance with law or order, is first made known to the court.”
[* ]“Mr. Mansfield sent for the author of these observations to his chambers, and there told him, that the Lord Chancellor had expressed displeasure at something said in a letter to his secretary, and advised an apology to be made. In reply, the author of these observations told his counsel, that he was prepared to maintain what he had written, and that he would not make an apology; and, having read to Mr. Mansfield the draft of the letter, Mr. Mansfield said that he recollected when Lord Thurlow was made Lord Chancellor, his lordship had mentioned to him in conversation, that he had been told that he was entitled to receive some fees, which he doubted his right to take. And Mr. Mansfield added, that such fees must have been those alluded to in the letter.”
[† ]“The letter to Lord Erskine was delivered to the late Mr. Lowton, who had a conversation with the author of these observations thereon, and Sir Samuel Romilly sent for and had his brief to reconsider.”
[* ]“See the table of fees in the rules of the King’s Bench, p. 241.”—Here ends the report.
[* ]Report printed for the House of Commons—date of order for printing, 14th May 1818. Sole subject of it: “Duties, salaries, and emoluments as to the Court of King’s Bench.”
[* ]Report of the commissioners on the duties, salaries, and emoluments in courts of justice;—as to the Court of King’s Bench. “Ordered by the House of Commons to be printed 14th May 1818.”
[* ]1821. Barnewell and Alderson, v. 266.
[† ]See the book intituled “Rules, Orders, and Notices, in the Court of King’s Bench . . . to the 21 Geo. II. inclusive.” 2d edit. 1747. Page not referable to, there being no paging in the book!
[‡ ]May 17th, 1825.
[∥ ]Note, that “effectually” as all future corruption is sanctioned, nothing is said of any that is past. If, in the situation in question, the word responsibility were anything better than a mockery, the fate of Lord Macclesfield—and on so much stronger grounds—would await Lord Eldon, his instruments, and accomplices. But, forasmuch as all such responsibility is a mere mockery, the only practical and practicable course would be—for some member (Mr John Williams for example,) to move for a bill of indemnity for them: which motion, to prove the needlessness of it, would call forth another stream of Mr. Peel’s eloquence: a reply might afford no bad occasion for Whig wigs, could a decent cloak be found for their departed saint.
[* ]Let it not be said, that to come within this act it is necessary a man should have proposed to himself the pleasure of being, or of being called, a cheat; the man the act means, if it means any man, is he who, on obtaining the money by any false pretence, intends to convert it to his own use. Instead of the words cheat and defrand, words which—and not the less for being so familiar—require a definition, better would it have been, if a definition such as the above had been employed. But logic is an utter stranger to the statute-book, and without any such help from it as is here endeavoured to be given, the act has been constantly receiving the above interpretation in practice.
[* ]How to grant licence under the guise of censure:
[† ]Lord Eldon, in VI. Vesey, jun. p. 433, as above, p. 356.
[* ]In Mr. Robinson’s speech of 16th May 1825, as per Globe and Traveller of the next day, no less than ten times (for they have been counted) was this ratio assumed in the character of a postulate: assumed by the finance master, and by his scholars, nemine contradicente, acknowleged in that character: every one of them, for self, sons, daughters’ husbands, or other et cæteras, panting, even as the hart panteth after the water-brooks, for the benefit of it. Number of repetitions, ten exactly; for Mr. Robinson had not forgot his Horace—with his decies repetita placebit.
[* ]He was brought to me by my earliest—the late George Wilson—who, after leading the Norfolk circuit for some years, retired with silk on his back to his native Scotland.
[† ]Hansard’s House of Commons Debates, 2d June 1818. “He (Mr. Brougham) agreed with his hon. friend, the member for Arundel, Sir S. Romilly, who looked up to Mr. Bentham with the almost filial reverence of a pupil for his tutor.”
[* ]I would willingly have said most unfit, but truth, as will be seen, forbids me.
[* ]Of this broadcast dissemination of uncertainty, one obvious cause may naturally be found in the profit made in the two great shops—the private act of parliament shop and the charter shop, in which the right of associating for mutually beneficial purposes is sold at so enormous a price,—for the benefit of men, by whom nothing but obstruction, in this and other shapes, is contributed.
[† ]Questions allowed to be put to a proposed witness:—“Doyou believe in the existence of a God?” If he, who does not believe, answers that he does,—thus answering falsely, he is received: if his answer be, that he does not believe,—speaking thus truly, he is rejected of course.
[* ]But Parliament—contempts of its authority all the while thus continually repeated—what does it say to them? Say to them? why nothing at all, to be sure: Cabinet, by which the wires of Parliament are moved, desires no better sport. Chancellor—by whom the wires of Cabinet are moved, and by whom the acts of contempt are committed or procured—looks on and laughs in his sleeve.
[* ]For greater fidelity, and to avoid some circumlocutions, the third person is here all along retransmuted into the first.
[* ]“Inquiry into the Present State of the Civil Law of England,” pp. 79, 80.
[* ]Morning Herald Thursday, 2d Dec. 1824.
[* ]Sarcasm and false wit, instead of calm judgment!
[* ]“Since writing the above, I have been informed that in one office,a the clerk is not allowed to receive gratuities, but is paid a stipulated salary: and I understand that the business of that office is conducted as well, as expeditiously, and as satisfactorily in all respects, as in other offices. It might seem invidious to say more so.”—Barrister.
[* ]I would willingly have said most unfit, but truth, as will be seen, forbids me.
[† ]Questions allowed to be put to a proposed witness:—“Doyou believe in the existence of a God?” If he, who does not believe, answers that he does,—thus answering falsely, he is received: if his answer be, that he does not believe,—speaking thus truly, he is rejected of course.
[a ]Worth knowing it surely would be by the House of Commons, what that one office is.—J. B.
[a ]Cobbett’s Debates, IX. 731, July 3, 1807. House of Commons. Pensions to Chancellors. From the speech of Lord Howick, now Earl Grey.
[b ]This single incident speaks volumes: it paints Matchless Constitution to the life. Take two traits, out of more.1. Profundity and universality of the contempt of human happiness and justice, in the breasts of the ruling and would-be-ruling few.During the whole six years, during which Lord Redesdale, with his unfitness staring him and everybody in the face, was paralyzing justice and manufacturing misery by wholesale—not only his creator silent, but every member of the aristocracy on both sides, in Ireland as well as in England. Down to this moment, never would anybody have heard of it, but for a personal squabble about Mr. Ponsonby, and a clause in his pension of retreat.Mr. Ponsonby, with his matchless, and, but for admission, incredible aptitude,—turned out in Ireland! Lord Eldon, after his six years perpetually demonstrated inaptitude, restored, and continued with continually increasing influence!As to delay, think from hence, whether, though in that, as well as all other shapes, abuse runs through every vein in the system—think whether, of that delay which drew forth the present complaints, there was any other cause than the difference, in point of dispatch, between this one man and every other; and whether, while this one man is where he is, deliverance from evil in that shape, any more than in any other, be possible.Henceforward, in Honourable House, or in Right Honourable House,—on the one side, or on the other,—should any man have the hardihood to stand up and declare, that on either side there is any more real regard for justice there than in the hulks—or in men’s breasts any more sympathy for the sufferings of the people than in the cook’s for the eels she is skinning—tell him of this!2. Double-bodied monster, head judge and head party-man, back to back: fitter to be kept constantly in spirits in an anatomy school, than one hour in the cabinet and the next hour on the bench. Behold in this emblem one of the consequences of having one and the same man to sit as sole highest judge, with all the property of the kingdom at his disposal, and in the cabinet to act as chief organizer of intrigues, and moderator of squabbles about power, money, and patronage: the cabinet situation being the paramount one,—the most transcendent aptitude for the judicial situation cannot keep him in it—the most completely demonstrated inaptitude remove him out of it! This under Matchless Constitution, under which the most loudly trumpeted tune is—the independence of the judges.Practical lesson:—Never, by any other means than the making the ruling few uneasy, can the oppressed many obtain a particle of relief. Never out of mind should be the parable of the Unjust Judge.As to Lord Redesdale, digression upon digression as it is, candour and sympathy compel the mention—he, like Mr. Peel, has committed one act of rebellion against his creator: he, too, has made one departure from consistency. Mr. Peel’s is the special-jury act: Lord Redesdale’s, the insolvency act. Should the day of repentance ever come,—each, with his bill in his hand, may cry, like Lovelace under the avenging sword—Let this expiate! But Lord Eldon! where will be his atonement? One alone will he be able to find, and that he must borrow of Lord Castlereagh.
[a ]As to the constant and all-pervading habit of perjury, see “Swear not at all.” For cleansing judicature of this abomination, a not unpromising course is in the power of individuals. Any suitor, who sees a witness of whose testimony he is apprehensive—if the witness belongs to any of the classes in question, let his counsel have in hand a copy of the statutes in question, asking him whether he did not swear observance to every one of these statutes, and whether, in the breach of this or that article, he did not constantly live: on denial, he will be indictable for perjury: on admission, it will be a question whether he can be heard.Lord Eldon! did you never take that oath? Lord Eldon! did you never violate it? Think of this, Lord Eldon!—Mr. Peel! did you never take that oath? Mr. Peel! did you never violate it? Think of this, Mr. Peel!