СНАР. XLVIII. A.D. 1802. made Chief Law is Justice of when he was sworn in and took his seat as Chief Justice.* Mr. Addington had the highest opinion of him, and never had hesitated about recommending him for promotion. On going home from Court, after hearing of Lord Kenyon's death, Mr. Attorney found a letter from the Prime Minister, announcing England that the King would be advised to appoint him, and expressing and a Peer. a confident belief that "when the royal pleasure was taken his Majesty would willingly sanction an appointment likely to be so conducive to the upright and enlightened administration of justice to his subjects." Immediately after Lord Kenyon's funeral, the King's pleasure was formally taken, with the anticipated result, and his Majesty cordially agreed to the proposal that the new Chief Justice should be raised to the peerage. It was first necessary that he should submit to the degree of the coif, only serjeants-at-law being qualified to preside in the King's Bench, or to be Judges of Assize. In compliment to the peace concluded by his patron with the First Consul of the French Republic, he took for the motto of his rings, "Positis mitescunt secula bellis." For his barony he chose from a small fishing village on the coast of Cumberland a sounding title, to which there could be no objection, except that having very often officially to sign it, he was forced afterwards to write many millions of large characters, beyond what would have been necessary if he had been contented with a word of two syllables, without any unphonetic consonants.† * 2 East, 253. † At Ellenborough there is a small estate which had been in his mother's family since the reign of Henry II., and it was supposed that he was partly induced to take this title as a mark of respect to her memory. CHAPTER XLIX. XLIX. CONTINUATION OF THE LIFE OF LORD ELLENBOROUGH TILL HE BECAME A CHAP. LORD ELLENBOROUGH's appointment was generally approved of, and he had the felicity of being promoted without the hostility A.D. 1802. of an effete predecessor, or the grudge of a disappointed rival, or the envy of contemporaries whom he had surpassed. His qualifications as a Judge. His professional qualifications were superior to those of any other man at the bar. Having an excellent head for law, by his practice under the bar he was familiarly versed in all the intricacies of special pleading: although not equally well acquainted with conveyancing, he had mastered its elements, and he could pro re natâ adequately understand and safely expatiate upon any point of the law of real property which might arise. He was particularly famous for mercantile law; and a thorough knowledge of the rules of evidence, and of the principles on which they rested, made his work easy to him at nisi prius. Not only had he the incorruptibility now common to all English Judges, but he was inspired by a strong passion for justice, and he could undergo any degree of labour in performing what he considered his duty. He possessed a strong voice, an energetic manner, and all physical requisites for fixing attention and making an impression upon the minds of others. must likewise state as a great merit that he could cope with and gain an ascendency over all the counsel who addressed him, and that he never had a favourite-dealing out with much impartiality his rebuffs and his sarcasms. The defects in his judicial aptitude were a bad temper, an arrogance of nature, too great a desire to gain reputation by despatch, and an excessive leaning to severity of punishment. I СНАР. XLIX. He did not by any means disappoint the favourable anticipations of his friends, although the blemishes were discoverable which those dreaded who had more closely examined his character. The day when he took his seat in court as Chief Justice, he said privately to an old friend that "his feelings as a barrister had been so often outraged by the insults of Lord Kenyon, he should now take care that no gentleman at the bar should have occasion to complain of any indignity in his court, and that he hoped any one who thought himself ill-used would resent it." Yet before the first term was over, he unjustifiably put down a hesitating junior, and ever after he was deeply offended by any show of resistance to his authority. By good fortune he had very able His puisnes. puisnes, so that the decisions of the Court of King's Bench while he was Chief Justice are entitled to the highest respect. Grose was his coadjutor of least reputation; but this supposed weak brother, although much ridiculed,* when he differed from his brethren, was voted by the profession to be in the right. All the others— Lawrence, Le Blanc, Bayley, Dampier, Abbott, Holroyd-were among the best lawyers that have appeared in Westminster Hall in my time. It was a great happiness to practise before them, and I entertain a most affectionate respect for their memory. as Chief Lord Ellenborough did not attempt to introduce any reform in His conduct the practice of his court, or in the preparation of the preliminary Justice. pleadings. The writ of Latitat was still as much venerated as the writ of Habeas Corpus, and all the arbitrary and fantastic rules respecting declarations, pleas, replications, rejoinders, surrejoinders, rebutters and surrebutters, which had arisen from accident or had been devised to multiply fees, or had been properly framed for a very different state of society, were still considered to be the result of unerring wisdom, and eternally essential to the due administration of justice. Antiquity was constantly vouched as an unanswerable defence for doctrines and procedure which our * "Qualis sit Grocius Judex uno accipe versu; Exclamat, dubitat, balbutit, stridet et errat." "Grocius with his lantern jaws Throws light upon the English laws." XLIX. CHAP. ancestors, could they have been summoned from their graves, would have condemned or ridiculed. One obstacle to legal improvement, now removed, then operated most powerfully, though insensibly—that antiquated juridical practice could not be touched without diminishing the profits of offices which were held in trust for the Judges, or which they were permitted to sell.* The grand foundation of legal improvement was the bill for putting all the subordinate officers in the courts at Westminster, as well as the Judges, on a fixed salary-allowing fees of reasonable amount to be paid into the public treasury towards the just expenses of our judicial establishment. The Benthamites would go still further and abolish court fees altogether; but there seems no hardship in the general rule that the expense of litigation shall be thrown upon the parties whose improper conduct must be supposed to have occasioned it. Arbitrators are paid by the party found to be in the wrong, and the burthen of maintaining the Judges appointed by the State ought not to be borne by those who habitually obey the law, and spontaneously render to every man his own. Upon the accession of Lord Ellenborough, the absurd doctrines about forestalling and regrating were understood, like prosecutions for witchcraft, to be gone for ever on account of the manly stand he had made against them under Lord Kenyon, and there has not since been any attempt to revive them. The internal free trade in corn was thus practically secured, although the doctrine that free importation of corn ought to be allowed from foreign countries did not follow for near half a century, and Lord Ellenborough himself would probably have regarded with as much horror such an importation, as did his predecessor a corn-merchant buying wheat at Uxbridge to be resold in Mark Lane. * I never saw this feeling at all manifest itself in Lord Ellenborough except once, when a question arose whether money paid into Court was liable to poundage. I was counsel in the cause, and threw him into a furious passion by strenuously resisting the demand. The poundage was to go into his own pocket-being payable to the chief clerk-an office held in trust for him. If he was in any degree influenced by this consideration, I make no doubt that he was wholly unconscious of it. I do not think that on any other subject the principles were altered by which the Court of King's Bench now professed to be guided. Lord Ellenborough adhered to the rule that in ejectment the legal estate shall always prevail, and that an outstanding term might be set up unless it might be fairly presumed to be extinguished or surrendered, or the defendant was estopped from contesting the title of the claimant. A more liberal and scientific mode, however, was restored of treating commercial questions, the civil law and foreign jurists were quoted with effect, and the authority of Lord Mansfield was again in the ascendant. Chief Justice Ellenborough's judgments connected with politics and history I propose hereafter to introduce chronologically as I trace his career after he mounted the bench. At present I think it may be convenient to mention some of the more important questions before him, which derive no illustration or interest from the time when they arose, or from any concomitant events. СНАР. XLIX. In now looking over the bulky volumes of "East" and of Lord Ellenborough's "Maule and Selwyn," it is wonderful to observe how many of decisions. the decisions which they record may already be considered obsolete. A vast majority of them are upon rules of practice and pleading, since remodelled under the authority of the legislature -upon Sessions' law respecting settlements, rating, and bastardy, which has been entirely altered by successive statutes-upon the old Quo warranto law, swept away by the Parliamentary Reform Act and the Municipal Corporations' Amendment Act-upon the law of tithes, abolished by the Tithe Commutation Act-and upon concerted commissions of bankruptcy and the validity of petitioning creditors' debts, which have become immaterial by the new Bankrupt and Insolvent Codes. I proceed to select a few cases, decided by Lord Ellenborough, which depend upon the common law and the eternal principles of right and wrong, and which must ever be interesting and instructive to those who wish to have a liberal knowledge of our jurisprudence. |