The Online Library of Liberty

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• Preface to the Fifth Edition
• Table of Mediaeval Cases
• Table of Modern Cases N.b. the Report References, Which Appeared In This Table In Earlier Editions, Will Be Found Incorporated In the Footnotes In the Text.
• Table of Laws and Statutes
• A Concise History of the Common Law
• Book One: a General Survey of Legal History
• Part 1: The Crown and the State
• Summary
• Chapter 1: The Anglo-saxon Period: Races and Religion
• Chapter 2: The Conquest to Henry II: The Beginnings of Administration
• Chapter 3: The Great Charters: Law Separates From Administration
• Chapter 4: Edward I to Richard II: Statutes and Social Revolution
• Chapter 5: The Fifteenth Century: the Problem of Enforcement
• Chapter 6: The Tudors: Renaissance, Reformation and Reception
• Chapter 7: The Stuarts: Struggle For the Supremacy of Law
• Chapter 8: The Eighteenth Century: Industrial Revolution
• Chapter 9: The Nineteenth Century: Liberalism and Reform
• Part 2: The Courts and the Profession
• Summary
• Chapter 1: The Communal Courts
• Chapter 2: Seignorial Jurisdiction
• Chapter 3: The Crown and Local Courts
• Chapter 4: The Jury
• Chapter 5: The Origins of the Central Courts
• Chapter 6: The Elaboration of the Judicial System: 1307-1509
• Chapter 7: The Tudors and the Common Law Courts
• Chapter 8: The Rise of the Prerogative Courts
• Chapter 9: Prerogative, Equity and Law Under the Stuarts
• Chapter 10: Parliament and the Privy Council
• Chapter 11: The Courts In the Nineteenth Century
• Chapter 12: The Legal Profession
• Chapter 13: The Growth of the Judiciary
• Chapter 14: Professional Literature
• Part 3: Some Factors In Legal History
• Summary
• Chapter 1: The Civil Law of Rome
• Chapter 2: The Canon Law of the Church
• Chapter 3: Custom
• Chapter 4: Legislation
• Chapter 5: The Principle of Precedent
• Book Two: Special Part
• Part 1: Procedure
• Summary
• Chapter 1: The Forms of Action
• Chapter 2: Civil Procedure
• Chapter 3: Pleading
• Part 2: Crime and Tort
• Summary
• Chapter 1: Criminal Procedure
• Chapter 2: The Felonies
• Chapter 3: Misdemeanours, Trespass and Tort
• Chapter 4: Liability, Civil and Criminal
• Chapter 5: Defamation
• Part 3: Real Property
• Summary
• Chapter 1: Feudalism
• Chapter 2: Feudalism In England
• Chapter 3: Inheritance and Alienability
• Chapter 4: Tenures and Incidents
• Chapter 5: The Rise of the Entail
• Chapter 6: The Common Law Estates Down to 1540
• Chapter 7: Uses and the Statute
• Chapter 8: The Later Law of Real Property
• Chapter 9: The Mortgage
• Chapter 10: Conveyances
• Part 4: Contract
• Summary
• Chapter 1: Origins
• Chapter 2: The Fourteenth Century
• Chapter 3: Assumpsit to Slade’s Case
• Chapter 4: Contract After Slade’s Case
• Chapter 5: Law Merchant and Admiralty
• Part 5: Equity
• Summary
• Chapter 1: The Early History of Equity
• Chapter 2: The Formative Period
• Chapter 3: The Work of the Chancellors
• Part 6: Succession
• Summary
• Chapter 1: Inheritance
• Chapter 2: Intestacy
• Chapter 3: Wills

CHAPTER 3

THE WORK OF THE CHANCELLORS

Some reference to the early history of the office of chancellor is essential if the later development of the office is to appear in its full significance.

Originally a strictly household office, it separated much slower than the exchequer.1 Some of the twelfth-century holders became powerful enough to withstand the King, but their power was not yet derived from the office; on the contrary, it seems that it was they who conferred dignity upon the Chancery. In the hands of a Becket or a Longchamp, the office of chancellor threatened to become a menace to the Crown, and it is not surprising that Henry II kept it vacant for eleven years. On the continent the papacy suppressed the office altogether; in France it was left vacant for generations at a time; in other realms it became attached as an ex officio dignity to certain sees (which at least prevented it becoming hereditary). In England it was common to give the office to clerks who had risen from the lower ranks of the civil service, but early in the thirteenth century there appears the practice of selling the office, the holder repaying himself out of the profits. Henry III stubbornly maintained the tradition that the headship of the Chancery was a household position, to be occupied by professional administrators, and to be shorn of political significance; above all, the chancellor was the King’s man, responsible to him alone.2 His office was therefore partly the headship of an administrative department, and partly that of an informal confidential adviser of the King.

ROBERT BURNELL

Edward I allowed the chancellorship to take on a new importance with the appointment of Robert Burnell. He was the trusted personal friend and chancellor of Edward even before he came to the throne, and was made Chancellor of England as soon as the new King came home from the Crusade in 1274. For eighteen years he held the Great Seal, and for eighteen years there flowed the vast stream of reforming legislation which extends from the Statute of Westminster the First to Quia Emptores. Burnell (who soon became bishop of Bath and Wells) must have had a large part in the preparation of these statutes, and must be regarded as legally the most eminent of our mediaeval chancellors.1

THE LATER MEDIAEVAI CHANCELLORS

After Burnell’s day the office of chancellor steadily increases in importance. It was not yet a judicial office, and his successors, like Burnell himself, took a prominent part in politics. It soon became clear that the office of chancellor generally implied that its holder was the King’s principal adviser, and since that advice came from the head of the chief government department the chancellors appear as a sort of mediaeval prime minister. This duty of counselling the King involved the chancellor, like the judges, in several political crises, one of which we have already mentioned,2 and as the demands of the baronial opposition to the official class become more clearly defined, they sometimes include a demand that laymen should be appointed chancellors—possibly with the hope that members of the baronial class would be appointed instead of clerical civil servants. This made no difference to the general nature of the office, which continued to be political, whether it was held by a bishop, a knight or a common lawyer. It is only when the equitable jurisdiction of the office made the work of it too arduous that we find the character of the chancellorship changing. Even in modern times the chancellors have frequently had an extremely important influence upon politics, which is a relic of their mediaeval position; at the present day in England the Lord Chancellor is a member of the Cabinet and comes in and goes out with the Government. Henry VIII’s reign contains two notable examples of political chancellors. Cardinal Wolsey (1515-1529) achieved fame as a statesman, although it is also clear that he was deeply interested in equity jurisdiction, for it was he, perhaps, who accentuated the separation between Chancery, Council and Star Chamber, and insisted that Chancery was a court of conscience. Of his activities as chancellor we know nothing save by indirect evidence, but the protests of the common lawyers clearly indicate that he was vigorously extending the jurisdiction of his court, and this, together with his overbearing manner, made him enemies among them and increased his political difficulties.1

SIR THOMAS MORE

Sir William Holdsworth has made the attractive suggestion that the appointment of Sir Thomas More (1529-1532) to succeed Wolsey was dictated by the necessity of conciliating the common lawyers in Parliament,2 for Sir Thomas More was himself a common lawyer and his father (still living) was a common law judge. This may have had some influence, but the King hesitated for a time between Archbishop Warham (an ex-chancellor), the Duke of Suffolk (courtier and soldier) and More. It must have been political considerations which finally prevailed. We therefore have the unusual spectacle for those days of a common lawyer becoming chancellor. More’s saintly character fitted him admirably for the chancellorship at this moment, for equity was still for practical purposes very largely the conscience of the Chancellor, and Lord Nottingham’s distinction, which we have already quoted, was still a century and a half in the future. Moreover, Wolsey’s frequent absences had resulted in heavy arrears, and More chose the judicial side of the office as the more important. He liked judicial work better, and had long administered mingled law and equity as Under-Sheriff of London. As we have seen,3 More made every endeavour to live at peace with the common law courts,4 and the relations he established seem to have lasted for two generations until the days of Coke.

The succeeding chancellors were men of lesser importance. The next distinguished name is that of Sir Nicholas Bacon, who was Lord Keeper for the first twenty-one years (1558-1579) of Queen Elizabeth’s reign. At Cambridge he acquired a love of learning, and in later years endowed a school and provided it with scholarships tenable at Cambridge. As a statesman he won the confidence of Queen Elizabeth; as a judge he strengthened the position of his court both against the common law courts and against the peers, establishing that the latter, like commoners, could be committed for contempt. He reorganised the establishment of the court, which was now large and complicated, and has left us the earliest surviving rules of Chancery procedure.

LORD ELLESMERE

Of his successors during the same reign the most important was Sir Thomas Egerton, successively Baron Ellesmere (1603) and Viscount Brackley (1616) who held the Seal from 1596 to 1617.1 Egerton was called to the bar in 1572 and enjoyed a large Chancery practice, until Queen Elizabeth (so the story goes) heard him argue in a case against the Crown and was so impressed by his ability that she determined he should never appear again against her, and so made him Solicitor-General in 1581, Master of the Rolls in 1594, and Lord Keeper in 1596; he only became Lord Chancellor in 1603 under James I. His political influence seems to have been considerable, especially with Queen Elizabeth, who had great confidence in him. As with most other prominent people, the accession of James I compelled him to take a side in those controversies which the old Queen had succeeded in repressing, and Ellesmere attached himself to the party of prerogative. In the early years of James I he was obviously trying to treat the new King as a Tudor and to enable him to carry on Elizabeth’s policy. In Chancery he issued numerous orders on the procedure and organisation of the court, especially with a view to shortening pleadings and preventing delay. Rather curiously, he discouraged the taking of accounts in Chancery—which was afterwards to become a notable part of equity jurisdiction. He refused to allow the court’s process to be abused, and even ordered that pauper plaintiffs who sued without cause should be whipped, since it was useless to condemn them to fines or costs. Contempt of the court’s decrees was visited with imprisonment and irons, and when Richard Mylward, an equity pleader, drew a replication in a hundred and twenty pages, when sixteen would have been sufficient, Ellesmere ordered—

Ellesmere himself, however, was capable of delivering very lengthy opinions; in Calvin’s Case we are told that “he argued very profoundly and was exceeding long, but read much in his book and had taken infinite pains, for he had wrote a great volume and was almost four hours in his arguments”—which judgment for long constituted his only published work.3 Several small tracts have been attributed to him on insufficient evidence, especially certain Observations on Coke’s Reports. The lack of adequate equity reports at this time makes it difficult to trace his activities save in those cases where emulation with Coke prompted him to preserve his decisions. From such evidence it is clear that the principles expressed in Doctor and Student were regarded, at least by Ellesmere, as the foundation of the court’s jurisdiction; but already he is careful to declare that equity is law and not merely discretion, and to maintain that Chancery, like the other courts, had “usages and customs” to guide its proceedings.

It was during Lord Ellesmere’s tenure of the Seal that the independence of Chancery was finally asserted—for such was the outcome of the great struggle between him and Coke. With two such headstrong antagonists the quarrel soon became vigorous. Coke prohibited suitors from going into equity; Ellesmere enjoined them from pursuing common law judgments. The result was a deadlock, and James I appointed a committee which included Sir Francis Bacon, the Attorney-General, to advise him, and after due consideration decreed in favour of the Chancery. Dissension occasionally broke out between Chancery and the common law courts at various later moments during the seventeenth century, but the position of Chancery could not be seriously assailed after Ellesmere’s victory.

LORD BACON

Ellesmere was succeeded in 1617 by Sir Francis Bacon, Lord Verulam (1618), Viscount St Albans (1621) commonly called Lord Bacon.1 It is hardly possible for any one person to form an adequate estimate of Bacon’s achievements, so great and so varied were they. As a man of letters, historian, statesman, lawyer, philosopher, he has many separate titles to fame. In politics in his early days under Queen Elizabeth he had held liberal opinions and had even suggested that the royal prerogative was subject to the control of law, but in her closing years he drew nearer to the court, and by the accession of James I he was recognised as a royalist. His political progress was thus exactly the reverse of Coke’s. Such indeed seemed the only way to office and influence, and it may well be that Bacon had other reasons for desiring office than merely the advancement of his personal fortunes, for he had in mind vast schemes of legal and political reform—the union with Scotland, the civilisation of Ireland, the colonisation of America, the abolition of feudalism, and far-reaching measures for the improvement of the law—and at that time the only possible means of carrying them out was through the active participation of the Crown. Like many others during the early days of James I, he thought that the Tudor idea of government by Crown and Council, with Parliament registering their decisions, was still practical politics, but even Elizabeth was finding this difficult in her later years, and for James it was obviously impossible. Bacon therefore found himself attached to a cause which was hardly worthy of him, and which in the end gave no help in the furtherance of his schemes.1

His early career began at Trinity College, Cambridge, Gray’s Inn, and the British Embassy at Paris. In 1584 he entered Parliament and soon learned that opposing the Queen would block his prospects. His letters are full of attempts to obtain office, which in those days could hardly be got without a good deal of court influence. Bacon at first was not very successful, for his uncle, Lord Burleigh, declined to use his influence on behalf of his nephew, and it was only in 1607 that he became Solicitor-General, and in 1613 Attorney-General, and in that capacity he took a leading part in the victory which Ellesmere had just won for the Chancery. In 1617 he succeeded Ellesmere as Lord Keeper and in 1618 he received the title of Chancellor and a peerage as Baron Verulam. His life at court seems at first sight something unnatural for a man of his temperament, but he was clear-sighted enough to realise that the influence required to carry out his schemes could only be obtained by engaging himself in the welter of intrigue which surrounded James I, and so we find this matchless philosopher taking careful notes in order to train himself in the miserable business of a seventeenth-century courtier. In the midst of all this he found time to lay the foundations of modern scientific thought in a work which the learned James I likened to the peace of God because it passed all understanding (that is to say his own), and which Coke inscribed with a satirical couplet.

Lord Bacon naturally followed the extravagant mode of life fashionable among courtiers and could hardly help adopting the courtier’s morality. Indeed, the only unity running through his life seems to be his genuine belief in the prerogative view of kingship and of the State. Hence state office is to him the highest of all duties, and in the pursuit of power (and therefore of wealth) he conformed to the standards of the new ruling class which dated from Henry VIII. He seems to have permitted the Earl of Buckingham to exercise undue influence in the conduct of Chancery proceedings, if not in the formation of his decisions. In the end, the common lawyers were able to bring and to sustain grave charges against the corruption of Chancery, and when one of the officials of the court was found guilty of forging court orders and dismissed, he took his revenge by accusing the chancellor himself of corruption. He was impeached on twenty-eight charges and pleaded guilty.2 The facts alleged against him he admitted, but maintained that the presents and influence brought to bear upon him had never once perverted his judgment. He was removed in 1621, and died in 1626.

The tragedy of Bacon’s life was that he first sought power for the noble end of carrying out his reforms, but in the endeavour to obtain that power his ideal became clouded and he employed means unworthy of the object he had in view. Worst of all—and this is a point which a clearer-sighted politician might have seen—however much power he attained in the court of James I, there was little probability of his being able to use it for the great purposes he had in mind. The foundation of the courtier’s art is a sound judgment of human character, and Lord Bacon suffered two deceptions. He may perhaps have had no illusions as to the court favourites whose support he sought, but he misjudged Sir Edward Coke, underestimated the strength of the common lawyer’s position, and failed to realise that Coke’s bitter enmity was sufficient to frustrate his designs. Then, too, he misjudged James I. When most men soon discovered that James did not possess the greatness of the Tudor monarchs, Bacon still continued to hope that the King’s influence could be used to further his ideals.

Although Lord Bacon’s public life can hardly be regarded as anything but a failure, the other aspects of his work entitle him to the highest fame. Of his labours in literature and philosophy we cannot speak here, but his work as a jurist deserves careful attention. As a common lawyer he achieved great distinction, which was only the more remarkable for its contrast with his great rival, Sir Edward Coke. His Reading on the Statute of Uses and his Argument in Chudleigh’s Case show his mastery of real property law. Contemporaries are unanimous in praising his eloquence, the masterly manner in which he grasped legal principles, and the clearness with which he presented his arguments. This broad view on legal questions he himself attributed to the results of studying Roman law, which also enabled him to estimate the value of the common law with more accuracy than Coke. His observations upon the defects of the common law are very penetrating. Among the remedies which he suggested were two digests, one of case law and one of statute law, to be followed by works of an institutional character—it is clear that he is thinking of the sort of reforms which Justinian carried out in Roman law.1

Very little was known of Bacon’s decrees as Chancellor until Mr Ritchie published a selection2 of them in 1932. He seems to have imitated the practice of Sir Thomas More in trying to establish better personal relations with the common law judges, and he did his part in establishing goodwill by making orders to prevent the abuse of injunctions. In all this he seems to have been successful. The policy which he outlined when he took his seat in Chancery shows that he intended to keep as far as possible important matters in his own hands; he disapproved of the growing weight given to the reports of the Masters in Chancery, and of the freedom with which orders were made on ex parte applications. The hundred and one orders which he issued in 1619 were the basis of Chancery practice until the nineteenth century, and constitute the one piece of codification which he was able to carry out. And finally, he had that rare merit in a chancellor of keeping level with his work.

LORD NOTTINGHAM

Of the chancellors who succeeded Bacon it is not easy to speak in the absence of adequate reports of their decrees; some of them achieved fame in other fields than that of the law, Lord Clarendon for example. Equity suffered an eclipse during the Commonwealth but it quickly recovered at the Restoration. The chancellors of Charles II after Lord Clarendon (1658-1667) were, first, Sir Orlando Bridgman (Lord Keeper, 1667-1672), an eminent conveyancer who is credited with having contributed to the invention of trustees to preserve contingent remainders2 and the rule against perpetuities.3 Bridgman’s judicial work in equity was undistinguished. He was succeeded for a year by the Earl of Shaftesbury, a courtier and a wit who was prominent in the Cabal ministry, and who was made chancellor in order to deal with the Bankers’ Cases which followed the Stop of the Exchequer; he in turn was succeeded by Sir Heneage Finch (1673-1682) who later became Lord Finch (1674) and Earl of Nottingham (1681). The Finch family had already achieved legal eminence4 and the future Lord Nottingham, after his call to the bar by the Inner Temple in 1645, rapidly acquired a good practice under the Commonwealth. At the Restoration in 1660 he became Solicitor-General, in 1670 Attorney-General, Lord Keeper in 1673 and Chancellor in 1675, holding the Seal until his death in 1682. In politics he was a strong, but not an extreme, royalist. To immense legal learning he added a broad general culture which served as the basis for his policy of conservative reform; as Solicitor-General he introduced the bill abolishing military tenure, and as Chancellor he drafted the Statute of Frauds.1 In spite of his mastery of legal technicalities, he would deliberately place himself in the position of a layman in order to test the reasonableness and fairness of the decisions he was to make in the name of equity; indeed, his attitude both in law and in politics was substantially the same, namely, a determination to keep State policy and legal practice in harmony with contemporary thought and conditions.2

Among his decisions are some notable contributions to international law, but his greatest title to fame is his work in the development of equity. His greatest decision was in the Duke of Norfolk’s Case (1682-1685)3 on the rule against perpetuities. In Cook v. Fountain4 he undertook a logical classification of trusts; in Thornborough v. Baker5 he decided that the executor and not the heir of a mortgagee is entitled to the debt secured by the mortgage, and of this rule he said: “This has long been a controverted point and was never fully settled until my time. . . . Therefore it is not fit to look too far backwards or to give occasion for multiplying suits.” He was well aware of the fact that he was establishing new principles and abrogating old ones which would make the former precedents useless. We have already mentioned his dictum that a Chancellor’s conscience is politic and civil rather than internal and natural, and that therefore equity was a matter of rule and not of discretion; as he said in Cook v. Fountain, “it is infinitely better for the public that a trust, security or agreement which is wholly secret should miscarry, than that men should lose their estates by the mere fancy and imagination of a Chancellor”. Already during the seventeenth century several Chancellors had reached the Woolsack by way of the bench, and so naturally brought with them some of the ideas of the common law, and it was this influence which Lord Nottingham strengthened in making the first serious attempt to fix the doctrines of equity—a process which was not completed until the close of the next century.

POST-REVOLUTION CHANCELLORS

Of the successors of Lord Nottingham mention must be made of Francis North, Lord Guilford (1682-1685), during the reign of Charles II, and of Lord Somers (1692-1700), the first Chancellor after the Revolution.1 Somers has left the reputation of a very great lawyer; his political career is best known, however, and many of his decisions are upon the important points of constitutional law arising out of the Revolution. The most important case he decided was the Bankers’ Case (1695-1696),2 which he treated from a sound historical point of view, his attitude being in striking contrast to the more practical judgment of Lord Holt. Nevertheless, to both of these two judges we are indebted for the decision reached by different reasoning, that a petition of right can be used to obtain damages for breach of contract against the Crown.

The reigns of Queen Anne (1702-1714) and George I (1714-1727) saw several chancellors whose names are still held in respect for their work in the formation of equity; we may mention Lord Cowper (1705-1708, 1714-1718), Lord Harcourt (1708-1714), and the Earl of Macclesfield (1718-1725), while under George II there were Lord King (1725-1733) and the short term of Lord Talbot (1733-1737).

LORD HARDWICKE

The greatest legal figure in the reign, however, was Sir Philip Yorke, first Earl of Hardwicke. He was born in 1690 and left school for an attorney’s office. He then entered the Middle Temple and was called in 1715, entering Parliament in 1719 as a protégé of Lord Macclesfield. His political career was that of a Whig supporting the Revolution settlement and the House of Hanover. In 1720 he was Solicitor-General, and in 1724 Attorney-General, where his first official case was to have been the impeachment of his old friend and patron, Lord Macclesfield—a duty which he was allowed to delegate to the Solicitor-General. He was a consistent supporter in the House of Sir Robert Walpole. In 1733 he succeeded Lord Raymond as Lord Chief Justice of the King’s Bench and became Baron Hardwicke. In 1737 he succeeded Lord Talbot on the Woolsack, becoming one of the most influential members of the government and interesting himself greatly in foreign politics. In 1751 he supported the reform of the calendar, and in 1753 he secured the enactment of the Marriage Act,3 usually called Lord Hardwicke’s Act. Contemporaries gave him the reputation of being a conservative and of being conspicuous even in those days for securing rich sinecures for his numerous children; as one of his enemies said: “Touch but a cobweb of Westminster Hall, and the old spider of the law is out upon you with all his younger vermin at his heels.”1 In truth his temperament seems to be fitted rather for gradual judicial reform by way of decision than for the speedier methods of the legislature. As Attorney-General in 1727 he successfully argued in Curl’s Case2 that an obscene libel was a misdemeanour at common law, and that the exclusive power of punishing it was not in the ecclesiastical courts. His decisions as Lord Chief Justice present no special interest, save perhaps one in 1737 which involved a clandestine marriage; this case, it seems, directed his attention to the unsatisfactory state of the law of marriage and prompted him to reform it in later years by statute. As Chancellor he had the great advantage of twenty years’ uninterrupted tenure which enabled him to carry out a systematic policy.

Among his decisions was one which allowed a husband to have curtesy in an equity of redemption;4 in another he held that the compromise of a doubtful right is good consideration for an agreement5 —the case had turned upon a family’s effort to conceal the fact that one of its members was illegitimate, and Lord Hardwicke here and on other occasions held that equity was particularly interested in the protection of family honour, which indeed was a logical deduction from a century and a half of history during which equity had busied itself with composing family difficulties. In 1747 he found a way around a recording statute which at first sight looks very much like frustrating it in the name of equity.1 In 1750 we have the great case of Penn v. Baltimore2 involving the boundaries of Pennsylvania and Maryland; as the defendant at the moment happened to be in England, Lord Hardwicke held that the Court of Chancery had jurisdiction by acting in personam to compel him to do equity.

LORD ELDON

Of Hardwicke’s successors there were many who achieved distinction, but we must now pass to the chancellorships of John Scott, Lord Eldon (1801-1806, 1807-1827), nearly fifty years later. He was the son of a prosperous tradesman of Newcastle. He was educated at Oxford and persuaded his older brother (who afterwards was to become Lord Stowell) to take the same course. His plans were temporarily interrupted by his elopement with a banker’s daughter, which at first brought him into difficulty, although upon regularising the marriage the banker made a settlement upon the couple. For a small salary he undertook to read the lectures prepared by the Vinerian Professor at Oxford,3 and in the meantime studied law and devoted himself to an equity practice. In 1780 his opportunity came. He was given a brief to consent to an order, but perceived that his client had a case which was worth arguing. He argued it and won, and the decision was upheld on appeal by the House of Lords. There is a story that shortly afterwards he was engaged in a case where he was to argue against the point which he had thus established, to which the judge said, “Mr. Scott, I have read your argument in Ackroyd v. Smithson4 and I defy you or any other man to answer it. Sit down, I beg you.” He immediately obtained a large and important practice, and three years later he took silk and entered Parliament. At first unsuccessful, he gradually made his way in politics and tn 1788 he became Solicitor-General and had to deal with the constitutional difficulties caused by the King’s malady. In 1793 the outbreak of the French Revolution caused him to promote a stringent series of statutes for the prevention of sedition, and to conduct numerous prosecutions based upon them. In 1799 he became Lord Chief Justice of the Court of Common Pleas and was raised to the peerage as Baron Eldon. Two years later he succeeded Lord Loughborough as Chancellor. Among other troubles, he had the delicate duty of composing the difficulties in the royal family, attaching himself to Caroline, Princess of Wales. In 1806 he was succeeded by Lord Erskine, but was restored in 1807 and continued to sit for another twenty years. He was now a conservative of the most uncompromising type, and during those twenty critical years the whole of his immense influence was employed in frustrating every possible reform. The same policy was pursued simultaneously by the Chief Justice of the King’s Bench, Lord Ellenborough. Only on one or two occasions did he lend his name to reforming legislation, such as the abolition by statute1 in 1819 of trial by battle, which had been practically obsolete for many hundreds of years—an obvious reform which most curiously was opposed by the radicals, who believed that the liberty of the subject was being thereby attacked—while in 1815 trial by jury in civil cases was introduced into Scotland.2 In 1819 Lord Eldon actively promoted the drastic series of six acts which were calculated to repress political discussion after the Peterloo incident.

In 1820 George IV came to the throne. Lord Eldon received an earldom and abandoned his support of Caroline (whom the King refused to recognise as Queen), and had to undertake the proceedings upon a bill of pains and penalties. Political changes had brought the liberal Canning into the ministry, and when he finally became Prime Minister in 1827 Lord Eldon resigned. Although he was now seventy-six he gathered his strength for his last great fight, and lived to see the enactment of all the measures which he feared most. In 1828 the religious disabilities of Protestant non-conformists were removed;3 in 1829 the Catholic Emancipation Act was passed,4 and in 1832 the Great Reform Act5 laid the foundation of modern democracy.

His work as Chancellor had great merits and great defects. His mind was particularly fitted for drawing fine distinctions and discussing subtleties and niceties, while his scrupulous character would not permit him to decide a case until he had exhausted all its possibilities and examined it from every angle. As a result his decrees, although excellent, became increasingly slow, and the accumulation of business was steadily reducing Chancery to the position which Dickens has described in Bleak House.6 His legal work was to complete the process whereby equity hardened into law, and for work of this type he was admirably fitted. It was his success in this direction which enabled the Judicature Act within fifty years of his death to amalgamate law and equity, and to authorise the administration of both systems by the same court. Of the vast number of his decisions, many are leading cases of present as well as historical importance, and will be encountered by the student in his studies.

PART 6

SUCCESSION