was reasonable or not,-using expressions more or less vague and loose, as, 'that the share must be reasonable, fair, a substantial share, a provision, that the power is to be exercised consistently with justice,'-expressions that must distress the mind of any judge required to act upon them,-I should pause in giving judgment, if bound to decide upon those authorities, with reference to the principle stated in the cases now before me, which, in effect (and it would be better to do it in words,) destroys all the authorities, as no two cases will probably ever be the same. If the Court has this authority to consider whether the execution of such a trust, or a power coupled with a trust, is reasonable, it seems to me better to deny the doctrine at once than to lay down a rule that will destroy it in effect,-looking only to sums and figures, and considering in each case whether the motives and circumstances by which the judgment among the different objects was regulated, were the same.”* The legislature has adopted the reasoning of Sir William Grant; and, by an act which I had the honour to introduce in the House of Commons, it is declared that no appointment shall be set aside in equity on the ground of its being illusory.t Once, at least, Lord Eldon changed his opinion. In Exparte Notte, the question being whether, where several firms are engaged in a joint adventure, the creditors of the adventure, in the event of bankruptcy and there being no joint property, may prove against the estates of the firms, or are confined to the estates of the individuals? Lord Eldon being much pressed with his own decision in Exparte Wylie, in which he had held, under similar circumstances, that the estates of the individuals only were liable, he said, “I feel bound to add, with respect to the case of Exparte Wylie, which has been so repeatedly appealed to during the argument, that as the first duty of a Judge is to endeavour, in the case before him, to decide rightly, and that his next is, if in any future case of the like kind he has reason to apprehend that his judgment was not upon such sound principles as it appeared to be when he pronounced it, that he should not hesitate to rectify his error;-looking at both these obligations, I feel myself bound to state that I must, when I decided that case, have seen it in a point of view in which, after most laborious consideration, I cannot see it now." Accordingly the proof was ordered against the estates of the several firms engaged in the joint adventure.§ When legal questions arose before Lord Eldon, he would send a case for the opinion of a Court of Law. He used to say that he had "all possible respect" for the Common Law Judges, which ought to have been high, for most of them were of his own nomination. But he treated them rather like school-boys, always pleased when he could * Butcher v. Butcher, 9 Ves. 393; Box v. Whitbread, 16 Ves. 18. § Lord Hardwicke palinoded more briefly, and perhaps more gracefully,merely saying, "Upon this case being re-argued and re-considered, I am thoroughly convinced that my former decree was wrong." Walmsley v. Booth, 2 Atk. 27. tell a good story against them. He took particular delight in relating how, to ascertain what estate passed to trustees under a settlement, he sent a case to the Court of King's Bench, who told him they took an estate in fee; and how he then sent the same case to the Court of Common Pleas, who certified that the trustees took no estate at all. "Now I was impertinent enough to think," he used to proceed, "that they were both wrong; I held that the trustees took a chattel interest; and, what is more, my decision satisfied all parties. He often said, that although when sitting in the Court of Chancery he felt himself bound by former decisions, it would be otherwise if an appeal were brought in the House of Lords, and he would offer facilities for obtaining a hearing there, but he was still found to adhere to the opinion he had originally expressed. I am aware only of two cases in which his judgment was reversed, and in each of these it was on the motion of Lord Redesdale. Neither of them involved any point of general interest. The first was Stuart v. Marquis of Bute, on the construction of a will. The testator had devised and bequeathed “all and every the wagon-ways, rails, staiths, and all implements, utensils, and things used and employed," with certain collieries, to trustees, on certain trusts; and the question was, whether, under the word " things," coals actually raised, debts due to the concern, and money of the concern in the hands of a banker, passed?-Lord Loughborough, shortly before his resignation, having held that they did, there was a re-hearing before Lord Eldon, who, after expressing much doubt, said, " Upon the whole, it is better for me to affirm the decree; not as being satisfied with the principle of it, but as I cannot make a decree with which I could be better satisfied." .” † An appeal being brought to the House of Lords, Lord Redesdale said, that although horses, hay, and corn used in the collieries would pass, the meaning of the word "things," must be restrained to "things ejusdem generis;" and therefore that the [JUNE 28, 1813.] coals, debts, and money in dispute must go to the executor. Lord Eldon: “I think myself highly fortunate in having the assistance of my noble and learned friend, in whose view of the question I completely concur." So the decree was reversed. The other case was Jackson v. Lunes, turning on considerations still more technical, and decided by Lord Eldon on a supposed recollection of an unreported dictum of Lord Thurlow, which (according to the precedent of Anthony and Cæsar's will) he was in the habit of resorting to when at a loss for an authority.§ But after the hearing at the bar of the House of Lords, Lord Redesdale having expressed a clear opinion that the decree was wrong, Lord Eldon [A. D. 1819.] said: "I conceive it to have been the opinion of Lord Thurlow that in order to dispose of the equity of redemption of the wife in an estate * 1 Swanst. 32; 1 Wils. Ch. Cas. 45; 18 Ves. 325; 11 East, 458; 3 Taunt. 316; 10 Ves. 495; 1 N. R. 116; 7 East, 97; Dow, 102. † Feb. 1806; 11 Ves. 607. ‡ 1 Dow, 73. § 16 Ves. 356. it was absolutely necessary there should be in the recitals of the instrument some expression that the parties meant it so that it was not enough to collect the intention from the limitations; but that there must be something more upon the face of the deed, to lead the wife to understand what those limitations were. It does, however, occur to me, on looking into the cases which have been referred to, that such a proposition cannot be supported, and therefore I am of opinion that the decree must be reversed.' The non-reversal of decrees (as I have often had occasion to observe) is but a poor proof of the merits of a Chancellor. Lord Eldon's judicial fame rests on the surer basis of the universal respect of the profession. Amid the war of jarring factions, while he was still on the woolsack, he was considered an oracle of law, both by foes and friends; since then his authority has in no degree declined; and there is no rashness in prophesying, that, for ages to come, his opinion, where it can be discovered, will rule the cases to which it is applicable. To prove, however, that I do not reverence him like the blind worshipper of an idol, I will mention two or three of his decisions which were not quite satisfactory to Westminster Hall, and which possibly may hereafter be overturned.* He had such a horror of "forestalling and regrating," by which he had heard his grandmother at Newcastle, and afterwards his tutor at Oxford say, "the pricè of provisions is cruelly enhanced to the poor," that all agreements savouring even of forestalling or regrating he held to be immoral, contrary to public policy, illegal, and void. Thus, an association of wholesale grocers, instituted under the title of the " Fruit Club," for the purpose of making purchases of imported fruits, and supplying the general trade, having brought an action against a person to whom they had sold a cargo, for the price of it, the purchaser, contending that they had not duly performed their part of the contract, filed a bill praying a discovery and an injunction. On a demurrer to the bill, Lord Eldon said, "This is not, according to the legal definition of the term, forestalling, much less regrating, still less monopolizing; but in the consideration of a Court of Equity it contains the mischief of all the three. First, there is a conspiracy against the vendors; next a conspiracy against the world at large, enabling those persons to buy at any price they may think proper; and then it is true they can if they please sell at a lower price than a fair competition in the market would produce; but it must also be recollected that they can sell on their own terms; and the manner in which that discretion would be exercised is obvious. Then, as between these parties, the complaint is, that it is immoral in the vendors not to let the purchaser have his bargain. What is that but an agreement that they shall be partners in a transaction in which they know they are acting illegally?" So the demurrer was allowed;—and on the same principle, the action at law could not be main * Of course I do so without prejudice to my right fully to concur in them after argument and further consideration, if I should ever be called upon judicially to review them in the House of Lords. tained, although the purchaser might have resold, and received payment for the whole of the fruit he had bargained for ;-because the partnership he dealt with was called the "Fruit Club," instead of "Smith, Tomkins, and Co."* I must likewise doubt some of his decisions respecting "Grammar Schools," which have had the effect of preventing these institutions in country towns from being adapted to the wants of society, and have rendered their funds of no use whatever, except to pamper a sinecurist pedagogue.† Collecting from his friend Dr. Johnson's definition, that a "Grammar School, n. s. is a school in which the learned languages (exclusively) are grammatically taught," he decided that the instruction to be given in those institutions must in every instance be strictly limited to Greek and Latin. He had imbibed a strange notion that they all had their origin in the Reformation, and were distributed by King Edward VI. over the country, as instruments eminently calculated to promote the new opinions. Now, grammar schools had nothing to do with the Reformation; and many of them were established in Catholic times,-every cathedral church or other ecclesiastical establishment of any importance, having annexed to it a grammar school to teach the laity their A B C, and to qualify the clergy to go through their Latin Breviary. The Newcastle Grammar School may have been founded in the reign of Edward VI., but the Chancellor might have recollected the charge brought by Jack Cade in the reign of Henry VI. against the Lord Say, "Thou hast most traitorously corrupted the youth of the realm in erecting a GRAMMAR SCHOOL: it will be proved to thy face that thou hast men about thee that usually talk of a noun and a verb, and such abominable words as no Christian ear can endure to hear: moreover, thou hast put them in prison; and because they could not read thou hast hanged them." Lord Eldon fell into a more serious error from the excess of orthodox zeal, in declaring that since the repeal of the statute of 9 and 10 William III., imposing penalties upon persons who deny the doctrine of the Trinity, Unitarians may be punished for blasphemy at common law, and are not to be treated as Christians.§ The doctrine he lays down would equally exclude from the pale of Christianity, Milton and Sir Isaac Newton, and all who have the misfortune to entertain any opinion in any respect at variance with the true notion respecting the Trinity, although their belief may be unexceptionable in every other article of Christian faith. But this was contradicted by all the Judges in the * Cousens v. Smith, 13 Ves. 542. † See the Attorney General v. Earl of Mansfield, the Highgate School case, 2 Russ. 501. This does not argue much learning beyond the "neck-verse" to be entitled to" benefit of clergy,"'—or more than substituting the "primer and horn book" for the "score and the tally." § Attorney General v. Pearson, 3 Merivale, 353, 409. | Although Milton and Newton were not Unitarians, they were Arians, and Lord Eldon's doctrine would equally apply to them. House of Lords, in Lady Hewley's case, for they held, that since the repeal of 9 and 10 William III., Unitarians, for civil purposes, are not to be distinguished from any other sect of Dissenters-was condemned by the Right Reverend Prelates, who supported the "Dissenters' Marriage Bill,”—and was renounced by Queen, Lords, and Commons, in the year 1845, when, under the advice of Lord Chancellor Lyndhurst and Sir Robert Peel, they passed the "Dissenters' Chapel Bill," which allowed Unitarian congregations to retain possession of Trinitarian endowments. But the decisions of Lord Eldon which I most object to, are those by which he erected himself into a Censor of the Press, and gave himself the power to protect or to extinguish, all literary property at his pleasure. From the time when copyright was vested in authors by the statute of Queen Anne,* till Lord Eldon received the Great Seal, Equity Judges had guarded it from piracy by injunction; and without this remedy the right would be a mockery, as actions at law to recover damages from hawkers and pedlars, who may sell pirated editions of any work, in city or country, would only add to the author's loss. The authorship and the piracy being established, the injunction had always gone as a matter of course, without any question being made respecting the nature of the publication; for under Lord Cowper, Lord Macclesfield, Lord King, Lord Hardwicke, Lord Camden, Lord Thurlow, and Lord Loughborough, it never had been imagined that the defendant could be permitted to allege, as a justification of his piracy, that he had been committing a crime by publishing something for which he was liable to be punished, as injurious to private character, or dangerous to religion, morality, or the good government of the state. Accordingly injunctions had been granted against the piracy of the "Dunciad," of "Swift's Miscellanies," of the "Beggar's Opera," of the "Life of George Anne Bellamy," and of other works containing passages which if strictly examined might be considered very censurable-no one suggesting that these should be culled as a repast for the Lord Chancellor, or that he should be required to waste his valuable time in trying to find them out,—and all who thought upon the subject being convinced, that if the work pirated were in any degree exceptionable, a benefit was conferred upon the community by restraining the circulation of it, instead of proclaiming to all the world that it might be published with impunity, in any form, and at any price. But within a year after Lord Eldon's appointment as Chancellor, DR. WALCOT, better known as PETER PINDAR, having a dispute with his booksellers respecting the construction of an agreement for publishing two editions of his works, and these editions being published,-as he contended, contrary to the agreement,-filed a bill, and prayed an injunction which was granted in the first instance, till answer. The defendants by their answer admitted that they had published in one of these editions some of the plaintiff's works contrary to the agreement, 3 Anne, c. 19. |