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A.D. 1737–56. HIS DEMEANOUR IN COURT. 195.
and maturer consideration, finally to have arrived at an opinion quite different from that which he had at first entertained, and even expressed; and he certainly well merited the character he gave of himself in this respect, when he said, “These are the reasons which incline me to alter my opinion, and I am not ashamed of doing it, for I always thought it a much greater reproach to a Judge to continue in his error than to retract it.”" He never interrupted, to show his quickness, by guessing at facts, or anticipating authorities which he expected to be cited. Not ignorant that the Chancellor can always convulse the bar with “counterfeited glee,” he abstained from ill-timed jocularity, and he did not level sarcasms at those who, he knew, could not retort upon him. He had a complete control over his temper, and, from the uniform urbanity and decorum of his own demeanour, he repressed the petulance and angry passions of those who practised before him, insomuch that it was remarked, that not only was he never himself led into any unbecoming altercation, but that he taught the rival leaders to behave to each other with candour and courtesy. It is likewise stated, to his credit, that, although in society he was supposed rather to be supercilious, presuming too much upon his acquired dignity, he was in Court uniformly affable to the solicitors, remembering that they were the class to which he expected himself to have belonged, and to whose kindness he had been greatly indebted for his advancement. The arguments being finished, if the case seemed clear, and did not involve any new question, he immediately disposed of it; but wherever his decision was likely to be quoted as regulating “the doctrine of the Court,” he took time for consideration, and having perused his notes and referred to the authorities cited, he came with a prepared and often a written judgment. On such occasions he was likened to “the personification of wisdom distributing justice and delivering instruction.” These performances certainly do come up to every idea we can form of judicial excellence. They are entirely free from any parade of learning, or the affectation of pointed or antithetical sentences. Two objects seem entirely to absorb the attention of the Judge: 1. Properly to adjust the disputed rights of the parties. 2. To establish a rule by which similar questions may be solved in future. He was anxious to bring * 2 Atk. 438. * every case within the scope of some general principle which he enunciated and defined, guarding it with its proper conditions and exceptions. He did not decide every case upon its “specialties” or peculiar circumstances, leaving the profession entirely at a loss with respect to the general principle which had been discussed,—nor did he wrest the peculiar circumstances of the case to make it conform to his canon. Having lucidly stated the allegations on each side, and accurately enumerated the facts which were established, he propounded the question or questions which they raised, and on which his decree must depend. Then recollecting the observation of Ilord Bacon, that “his equity was to be taken from his books, and not from his brains,” and that “the Chancery was ordained to supply the law, not to subvert the law,” he reviewed all the authorities upon the subject, and, if none of them were expressly in point, he tried to educe from them by analogy a rule which harmonised with them in principle, and which might equitably govern all cases similarly circumstanced. He never resorted, however, to forced interpretations or fanciful analogies, and he was always anxious to support his opinion by legal precedents—in the selection and application of which he was particularly happy. Nor was he betrayed into the seductive and dangerous practice of laying down rules in loose and sweeping terms, which might carry their authority far beyond the point necessarily to be decided, and mischievously include cases which were not then in contemplation. He, therefore, expressed himself in the most guarded terms, and mentioned distinctly the qualifications. with which he meant his opinion to be received. There was no enthusiasm in his nature, but he really had a passion (such as I have seen exhibited by the cool-headed Tenterden) to do justice, and to advance the science over which he presided;— most unlike the reckless judge who is only anxious to escape open censure—indifferent as to the rights of parties, the improvement of jurisprudence, and his own permanent fame. Lord Hardwicke's judgments are deservedly praised for luminous method in the arrangement of the topics, and elegant perspicuity of language in the discussion of them. But I will venture to point out what I consider their peculiar excellence—the fair and manly manner in which the arguments are stated which are to be overruled. I have known Judges who, in important cases, have entirely omitted to notice the most powerful objections to their view of the case
CHAP. CXXXI. HIS JUDGMENTS. 197
—not, probably, from any disingenuous motive, but from not understanding them. Lord Hardwicke always fully sees and appreciates the arguments against the side which he adopts— restates them with additional force and clearness, and refutes them so satisfactorily as almost to bring conviction to the minds of those who had invented them, and had for a time been the dupes of their own subtlety. He was particularly praised for the manner in which he dealt with cases coming before him on exceptions to the Masters' Report, and on appeal from the Master of the Rolls. He showed no propensity whatever to reverse what had been decided, but he freely and boldly considered every question submitted to him as the superior Judge. Not shrinking from trouble or responsibility, he formed his own opinion upon it, and resolutely corrected what appeared to him to be amiss. There were four Masters of the Rolls successively under him, and he will be found to treat them all with great respect, but with great freedom. By these means Lord Hardwicke, in a few years, raised a reputation which no one presiding in the Court of Chancery has ever enjoyed, and which was not exceeded by that of the great Lord Mansfield as a common-law Judge. The wisdom of his decrees was the theme of universal eulogy. “Etiam quos contra statuit, aequos et placidos dimisit.” Such confidence was there in his administration of justice, that the business of the Court was greatly increased, and it is said that more bills were filed under him than at any subsequent time, although the property administered by the Court of Chancery has since been increased sevenfold. There were still rare complaints of delays in Chancery, from the intricate nature of the inquiries, the death of parties, and other inevitable obstructions to the final winding up of a suit; but by great exertion arrears were kept down, “and this is fondly looked back upon as the golden age of Equity.”” I hardly think it worth while to mention the statement which is so much harped upon by the common herd of Lord Hardwicke's petty biographers, that only three of his decrees were appealed against, and that in each of these cases the decree was affirmed. The truth is, that during the whole of his time, through management which I shall afterwards have to consider, he was the sole law Lord, and substantially the Chancery was a court of the last resort. - But I should do injustice to his memory if I were not to praise what hitherto has attracted little notice—the admirable manner in which he disposed of the judicial business in the House of Lords. His demeanour on the woolsack appears to have been a model for all Chancellors. While he was affable and courteous, he studied to preserve order. He himself attended to the debates, and his example and influence generated a habit of attention and decorum among others. Though, in strictness, without more authority than any other Peer, all sides recognised him as moderator, and, by his quiet and discreet exertions, unseemly altercations and excessive familiarity were effectually discouraged. In his time a meeting of the Peers had somewhat the air of a deliberative assembly,–instead of being a lounging place to hear the news of the day before dressing for dinner. o Although there were only three appeals from Philip to Philip, in all of which the decrees were affirmed without difficulty, there were a good many writs of error from the common law courts, which, with the assistance of the Judges, he disposed of in a very masterly manner; and there were a great many appeals from Scotland, which, without assistance, he decided to the universal satisfaction of that country, where he was much honoured, till he abolished heritable jurisdictions, and compelled the inhabitants to wear breeches. I am now desirous of laying before the reader specimens of Lord Hardwicke's performances as a civil Judge; and there are ample materials for doing so: for, besides his own note books and his judgments in his own handwriting, there are several MS. collections of his decisions, by very able hands, during the whole time he sat in Chancery,” and the principal cases before him have been digested and published by Atkyns, Vesey, sen., and other reporters." Although these “Wates
* Lord Hardwicke, -abstaining from drink- his morning sitting, sat twice a week in the ing his bottle after dinner—a sacrifice too great afternoon or evening. for his successor, regularly, in addition to
y There are extant copious notes taken by him of debates which, with those of Archbishop Secker, have filled up lacunae in the Parliamentary History.
* Of one of these, by the great kindness of my friend, Mr. Charles Purton Cooper, I am now in possession. It consists of four quarto volumes, beautifully written by Mr. Jodderell, an eminent Chancery barrister. He often does more justice to Lord Hardwicke than Atkyns or Vesey, sen.; and I am told
that, upon a reference to the register's book,
sacri” prevent his name from perishing,-from their condensation, they do not render justice to his copious illustrations, his lucid arrangement, and his elegance of diction. Yet they give us the pith and substance of his discourses in pronouncing his decrees, and they afford an exquisite treat to the scientific reader. From these stores I am rather embarrassed with my riches, and,-instead of writing a volume to give a sketch of Lord Hardwicke's new doctrines, with the restrictions and expansions of what had been before laid down, being confined to the selection of a few detached points decided by him, I am much afraid of being thought to resemble the XXoAaarikoc in Hierocles, who, to prove the fine proportions of a building, produced a brick which he had taken from it. The Equity lawyer who feels the little justice I do to the object of his adoration, will best appreciate the difficulty of my task.
Lord Hardwicke established the rule that persons, though not Christians, if they believe in a divinity, may be sworn according to the ceremonies of their religion, and that the evidence given by them so sworn is admissible in courts of justice, as if, being Christians, they had been sworn upon the Evangelists. This subject first came before him in Ramkissenseat v. Barker, where, in a suit for an account against the representatives of an East India Governor, the plea being overruled that the plaintiff was an alien infidel, a cross bill was filed, and an objection being made that he could only be sworn in the usual form, a motion was made that the words in the commission, “on the holy Evangelists,” should be omitted, and that the commissioners should be directed to administer an oath to him in the manner most binding on his conscience:–
Lord Chancellor. “I have often wondered, as the dominions of Great Britain are so extensive, that there has never been any rule or method in cases of this sort. All persons who believe a God are capable of an oath ; and what is universally understood by an oath is, that the person who takes it imprecates the vengeance of God upon him if the oath he takes is false. It was upon this principle that the Jūdges were inclined to admit the Jews, who believed a God according to our notion of a God, to swear upon the Old Testament; and Lord Hale very justly
Vesey, sen., was published in 1771. case recollected, and the case at bar on all fours
At that time MS. notes were much quoted; There are decisions of Lord Hardwicke to and counsel depended on recollection,--which be found in Strange, Ambler, Barnardiston, had this advantage, that it always made the Ridgeway, and West, published subsequently.