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"' Discernment, eloquence, and grace
•. The praise bestow'd was just and wise:
"So the best courser on the plain
The new Chancellor did not disappoint public expectation, and as long as he enjoyed the prestige of office, he contrived to persuade mankind that he was a great judge, a great orator, and a great statesman,— although I am afraid that in all these capacities he was considerably overrated, and that he owed his temporary reputation very much to his high pretensions and his awe-inspiring manners.
He was tolerably well qualified to preside in the Court of ThurWs Chancery from his natural shrewdness, from the know- tions aTan ledge of law which he had acquired by fits and starts, and Equity from his having been for some years in full practice as an equity counsel. But he had never devoted himself to jurisprudence systematically; he was almost entirely unacquainted with the Roman civil law as well as with the modern codes of the continental nations, and, unlike Lord Nottingham, Lord Hardwicke, and the Chancellors whose memory we venerate, upon his elevation to the Bench he despised the notion of entering on a laborious course of study to refresh and extend his juridical acquirements. Much His want engrossed by politics, and spending a large portion of his time of induslry< in convivial society or in idle gossip with his old coffee-house friends, he was contented if he could only get through the business of his Court without complaints being made against him by the suitors, or any very loud murmurs from the public. Permanent fame he disregarded or despised. He was above all taint or suspicion of corruption, and in his general rudeness he was very impartial; but he was not patient and pains-taking; he sometimes dealt recklessly with the rights which he had to determine, and he did little in
Employs Mr. Justice Duller to sit for him in the Court of Chancery.
Nicknames given to him.
11 is habit of swearing on the bench.
settling controverted questions or establishing general principles. Having been at the head of the law of this country for near thirteen years, he never issued an order to correct any of the abuses of his own Court, and he never brought forward in parliament any measure to improve the administration of justice.
He is said to have called in Hargrave, the very learned editor of Coke upon Littleton, to assist him in preparing his judgments, and some of them show labour and research; but he generally seems to have decided off-hand without very great anxiety about former authorities.
Frequently he employed Mr. Justice Buller, a very acute special pleader and nisi prius lawyer, to sit for him in the Court of Chancery. On resuming his seat, he would highly eulogise the decisions of " one whom he, in common with all the world, felt bound to respect and admire." But being privately asked " how Buller had acquired his knowledge of Equity ?" " Equity!" said he; "he knows no more of it than a horse, but he disposes somehow of the cases, and I seldom hear more of them."
So fiercely did he spring on a luckless counsel or solicitor, that he generally went by the name of the " Tiger," and sometimes they would, out of compliment, call him the "Lion,"—adding that Hargrave was his "provider."
His habit of profane swearing he could not always control, even when on the Bench, and those who were sitting under him near the Mace and the Purse, occasionally heard a muttering of strange oaths. Yet some supposed that, in reality, he had a great deal of good-humour under an ostentatiously rough exterior, and of this he would occasionally give symptoms. It is related that once, at the adjournment of the Court for the long vacation, he was withdrawing without taking the usual leave of the Bar, when a young barrister exclaimed in a stage
whisper, — " He might at least have said d n you!" The
Chancellor hearing the remark, returned, and politely made his bow.*
Thurlow is handed down to us as a Judge by Brown, CHAP. Vesey junior, and Dickens. It may be partly their fault, but he certainly appears in their Reports to little advantage. His judgments are not only immeasurably inferior to those of such a consummate master of juridical reasoning as Sir William Grant, but arc not by any means equal to those of Pepper Arden, for whom Thurlow was accustomed to testify 8uch ineffable contempt.
I will bring before the reader a few of his decisions which Q. Are appear to me to be the most important and interesting. In j^fTM,;'"'1 Bishop of London v. Fytche*, the question arose "whether moniacal? bonds given by an incumbent to the patron of a living for resigning on request, are lawful." The Chancellor gave a strong opinion in favour of their legality, insisting that they not only were not simoniacal, but that they were not contrary to public policy, and that being properly controlled by a court of equity, they might be very salutary. He repeated this opinion with great boldness when the question came before the House of Lords. But the Judges being consulted, were divided upon it, and the Bishops taking the contrary side and voting,— there was a reversal by a majority of 19 to 18, so that general resignation bonds have since been unlawful, although there may still be a bond conditioned for the resignation of the incumbent, on the patron's son coming of age and being in holy orders. f
In Cason v. Dale, Lord Chancellor Thurlow held upon the Construc"Statute of Frauds," which requires that a will of lands shall ^'Xl'It'or be subscribed by the witnesses in the presence of the testator, when win is that a will was well executed where a lady, who made it, by wit-'*^ having signed it in an attorney's office, got into her carriage, and the carriage was accidentally backed by the coachman opposite to the window of the office, so that if she had been inclined, she might have let down the glass of the carriage, and seen the witnesses subscribe the will.J
* 1 Brown, 96. f Brown's Pari. Cas. ii. 211.
| 1 Brown, 39.; Dickens, 586. But it is necessary that the testator should be in such a position as that, by possibility, he may have seen the witnesses sign the will, if so disposed, Doe v. Manifold, 1 Maule & Selw. 294.; although if he might sec them from any one part of a room in which he was, and there be
Money land and land money.
Origin of the fortune of Lord Eldon.
In Jones v. Morgan *, in which the industry of Mr. Hargrave may be pretty clearly traced, the Chancellor obtained great glory by overturning a decision of Lord Hardwicke, and holding that the same construction is to be given to limitations in wills of trusts and legal estates. He likewise delivered a very elaborate judgment in Pultney v. Earl of Darlington f, (which could hardly have been composed by Hargrave, for he was counsel in the cause,) establishing the doctrine now recognised, that where either land is directed to be converted into money, or money to be laid out in land — from the moment the direction might have been executed the property receives the impression either of personalty or realty, with all the incidents of either estate. This case being brought before the House of Lords by appeal, the decree was affirmed.
Thurlow's decision in Achroyd v. Smithson% was the foundation of Lord Eldon's fortune at the bar, and may be said to have made him Lord Chancellor. A testator ordered his real and personal property to be sold, and the fund to be divided among certain legatees. Two of them died in his lifetime. The question was, what was to become of their shares? Sir Thomas Sewell, M.K., held against the argument of Mr. Scott, who, after being above a year briefless, had a guinea brief for the heir at law, that the whole should be distributed among the surviving legatees. Upon an appeal brought by other parties, Mr. Scott had another guinea brief to consent, on the part of the heir at law, to an affirmance; but having a strong opinion that he was right, he argued the case so zealously and ably, that Thurlow was much struck with the manner of the unknown counsel; and, after high compliments to him, reversed the decree,—deciding that the shares of the deceased legatees were lapsed legacies, and that so much of them as arose out of the real estate should go to the heir at law. Lord Eldon, in relating the story, used to add, "As I left the Hall a
no evidence in what part of the room he was placed, it will he presumed that
he was where he might have seen the witnesses Wincliclsea v. Wauthvpt, 3 Russ. 444.
* 1 Brown, 206. \ lb. 223. \ lb. 503.
respectable solicitor, of the name of Forster, came up, CHAP, touched me on the shoulder, and said, ' Young man, you have CLVI1' cut your bread and butter, or 4 Your bread and butter is cut for life.'" And business thenceforth flowed in upon him, although, till after another lucky hit, he still desired to become Recorder of Newcastle, and to practise as a provincial counsel.*
In Newman v. Wallis f, our Chancellor most unaccount- Erroneous ably held, with great positiveness, that where a plaintiff Thurlow in claims an estate as an heir at law, and prays a discovery, it Newman r. is not a good plea that he is not heir at laic; but in the subsequent case of Hall v. Noyes J, he was driven to retract this opinion, and it is now fully settled that such a plea is good, although a defendant cannot, by a plea denying the principal fact, evade a discovery of the collateral facts connected with it.
In the Countess of Strathmore v. Bowes §, where the Lady Lady had settled all her property to her separate use, meaning to J^TM" marry one man, and then, by a stratagem, was induced to marry another who was ignorant of the settlement, Thurlow established the settlement against the husband, observing in his characteristic manner: —" As to the morality of the transaction, I shall say nothing. They seem to have been pretty well matched. Marriage, in general, seems to have been Lady Strathmore's object; she was disposed to marry any body, so that at the same time she might keep her fortune to herself. But the question is, has there been a fraud upon the husband? It is impossible for a man marrying in the manner Bowes did to come into Equity and talk of fraud.
Ex parte O'Reilly || was the first of a long string of opera- First house cases, which have perplexed Chancellors ever since. Housecase. The Italian Opera House, in the Haymarket, having been burnt down, a patent for thirty-one years had been granted to the petitioner to enable him to build a new theatre upon the site of Leicester-house, in Leicester Square, and the