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The Whig ministry, however, shortly returned to power: and on returning, felt more severely than ever the dearth of legal talent at their disposal. They could not restore the Great Seal to Lord Brougham: and yet there was not another hand to whom they could think of confiding it. So little confidence had the leaders of the party, or rather so little knowledge of, their future model Chancellor, then Master of the Rolls, that the Great Seal was actually in commission from the time of their accession to office in April, 1835, till the following January : Sir Charles Pepys being however first Lord Commissioner. (The other commissioners were the late Vice-Chancellor of England, Sir L. Shadwell, and Mr. Justice Bosanquet.) But after a year's experience of the vast learning, temper and discretion of Sir Charles upon the bench — perceiving the full satisfaction and confidence felt by the Bar and the public in the appointment-constrained also by the absence of any
other tolerable alternative--they literally made a virtue of necessity, and took credit for discernment in making an appointment which circumstances had rendered inevitable. And never did fortune serve them better. Their choice amounted to this, that they obeyed the dictates of necessity. But if they had chosen from the whole Bar, past and present, of England, the event could not have reflected greater credit on their judgment.
Yet Lord Cottenham had, as a judge, very considerable faults: faults which became more palpable on his second Chancellorship, from 1846 to 1850, than they had been in his first tenure of office, 1836 to 1841. And the memory of this later and less brilliant period is fresher in men's recollections, and has somewhat obscured the lustre of the earlier period. Certain it is that his reputation would have been less obvious to detraction had he never returned to office.
His chief defect was an indomitable obstinacy of adherence to an opinion which he had once formed : and as his lordship, like most other legal celebrities, was sufficiently expeditious in forming an opinion, it was a matter of some anxiety to place the right view of a case before him at once, or at least to be careful that nothing should be fixed on his attention which might prevent his taking a just view of the case. Fortunately his clear and acute mental vision rarely allowed any material fact to escape observation, and rarely, too, allowed any film or sophistry to strut about in the garb of truth without speedy detection and exposure. Still this did happen, sometimes : and although there seldom has been a judge who was more right, when he was right, yet when he did go wrong, he went wrong with vengeance. And it was as hard to overcome a false view as a
just one, when he had once declared himself. It was on some such occasion that it is reported of a very eminent practitioner in Chancery, now a still more eminent judge, that when a client was urging him with the utmost anxiety to apply for a rehearing of a cause in which the Lord Chancellor had just delivered a very decided judgment under a palpable misconception of the facts of the case, he refused to make any such application, adding, “ And I tell you more, sir—that if an angel were to come down from heaven to ask the Lord Chancellor to reconsider his opinion after such a judgment as he has just given, he would most probably commit him for a contempt.
There were however occasions on which he changed and even reversed his own opinions, as in the very celebrated cases of Tullett v. Armstrong and Scarborough v. Borman. These cases were among the earliest, if not the earliest, decisions of Lord Langdale after his elevation to the Rolls-and in them he had decided certainly according to the notions and practice of conveyancers, but directly in the teeth of repeated decisions, or at least dicta of Sir John Leach, Sir L. Shadwell, Lord Brougham, and of the then sitting Lord Chancellor himself. We well remember the state of anxious suspense in which the “adust conveyancers," as the “ Times” calls them, were kept during the long twelve months during which Lord Cottenham retained these cases under his consideration. While at the Rolls, following in the wake of Lord Brougham and of the then Vice-Chancellor of England, he had been willing to deny any efficiency to the “ separate use" clause, unless it referred to a person actually a feme covert at the time. In Massey v. Parker,he seemed as incapable as Lord Brougham had expressed himself to be, to understand how there could be a "postponed” fetter of such a description, as to be no impediment while the donee remained unmarried, but to bind the instant she married, and again to drop off if she became a widow. But finding afterwards, as he did, what consternation was excited among conveyancers, and what a vast number of settlements would be disappointed by the overthrow of the "separate use" doctrine as established previous to Massey v. Parker, and that class of cases, he (not unhesitatingly, for the effort cost him twelve months' deliberation) recanted. And certainly not very candidly or gracefully, for his judgment is full of heavy and awkward attempts to show that in fact he had not quite meant to decide in his previous judgment, what he really had decided. However the retractation was complete, and the doctrine established, by his judgment, on the firmest foundation. I 4 Mylne & C. 377.
? 2 M. & K. 174.
The tenacity of opinion which led him in Tullett v. Armstrong to attempt to prove that he had never held what he in fact was even then overruling, was evinced in several other cases in which he decided (as we think) in conformity with the real justice of the case, but professing all the while to go in conformity with previous decisions, which he endeavoured to twist round to his own view of the case, Thus in Cradock v. Piperl he decided that a solicitor, who being a trustee, acts as solicitor to the trust, is entitled to his costs as such solicitor: a decision in consonance, we think, with justice, and with real convenience, but certainly contrary to all preconceived notions, and to the practice of all the present generation, founded too upon decisions which even the Lord Chancellor was bound to respect. But rather than give up his opinion he undertakes, in his judgment, to explain away all these decisions, as not having the meaning which everybody else, even though with reluctance, allowed to them. We understand that already some very
nice distinctions have been taken on this judgment by a very eminent judge recently appointed. Devisme v. Devisme” is another case in which Lord Cottenham, finding previous decisions in the way of the judgment he was desirous of giving (and which judgment we bere again consider to be much more equitable than the previous decisions the other way), boldly proceeds to explain away all cases which fetter the declaration of his opinion in a manner which he would have been the last judge to tolerate in another.
One of his remarkable peculiarities (but which also sometimes degenerated into a fault) was a curt, acute way of addressing counsel when making some representation which he conceived to be ill founded, either in facts or logic. No judge would ever less submit to the slightest suspicion of being “bamboozled ;” and as soon as any argument was advanced, which he thought ranked under that category, he would embody it pithily in a short sentence or two, and place it before its astonished author, whether in silk or in stuff, to his utter discomfiture." It is very awkward,” observed one of the counsel most frequently employed in his court," he just puts it to you shortly, and asks, 'Is that your argument? adding quietly, I only want to know—that's all;' and then, when be sees he is right, he sinks back in his chair, and it is all over.”
But this quickness of perception in himself rendered him son.ewhat intolerant of the slower capacities of those with whom he had to deal; and upon them he often, with indecorous abruptness, poured forth the measure of his wrath-an exhibition the "1 M‘Naught. & Gor. 684.
2 Ibid. 336.
VOL. XV. NO. XXIX.
more indecorous, as the expressions which he used in his indignation were often barely intelligible. In fact, in the later period of his reign, his articulation had grown so indistinct,1—his voice had grown so extremely weak, scarcely ever rising above a whisper, and his temper had grown so irritable, that it was no pleasant thing to have to go before him. Nor was it only to the Bar that these failings were a source of difficulty and annoyance. His notorious antagonism to V.C. Knight Bruce was the subject of every-day remark, and occasionally led to very serious mischief. Thus in Ex parte Barber, a petition for winding up the London and Manchester Railway (Remington's Line) was dismissed by V.C. Knight Bruce, on the ground that the company, being only provisionally registered, was not within the Winding, up Acts. But Lord Cottenham overruled that dismissal, and made the order; thereby flooding the Masters offices with winding up these companies, and opening the doors to endless litigation, infinitely better kept away; and finding that his opinion was deemed erroneous, and would probably be evaded, he had sufficient influence and such tenacity of opinion as to procure a clause to be inserted in the next Winding-up Act (for of course there was another in the next session), in which his own view was adopted and made law, to the gain of no good man, and to the great distress of many unwary persons, who, though they at one period of their lives had thought well of some plausible but birth-strangled scheme, never had been guilty of anything worthy of the tortures of the Master's Office,
The same unbounded confidence in his own judgment led him to upset rather than overrule the decisions of other judges as well as of V.C. Knight Bruce. Witness Smith v. The London and North-Western Railway Company, in which he demolished a judgment of Sir L. Shadwell's; but which reversal has been disapproved of since both by Lord Truro and Lord Cranworth. And in one case within our own knowledge, he used such insulting expressions (but which, however, are carefully kept out of the Report) in reversing a judgment of a most estimable judge (whose retirement and the occasion of it has been deplored by the whole profession), that it drew from this latter the remark,“I have no objections to my judgments being overruled; but I am not prepared to have such observations made in open court as he made in that case.
He retained his political bias in all its intensity in his cha
We heard one day a proposal made, by way of a joke, for the bar to present the Chancellor with a subscription-set of teeth. But some such remedy was in sad earnest very much required.
Dawes v. Betts, 12 Jur. 709.
racter of Lord Chancellor-or rather, it was when he became Lord Chancellor, and during his tenure of office, that his political bias became matured and an effective motive of action. We do not mean that he imported political bias into the Court of Chancery, so as for a moment to favour either party according to his political antecedents. But he surpassed perhaps even Lord Eldon in political bigotry, and let slip no opportunity of displaying it. À notable sample of this occurred in the first year of his first chancellorship. The Municipal Reform Act had been passed in 1835, by a clause in which, relating to charity property held by the corporations, and providing for the appointment of separate trustees of such property, it was provided that the Court of Chancery should appoint trustees of such trust estates as were not duly separated and conveyed by the 1st August, 1836. Lord Cottenham was but Master of the Rolls and Lord Commissioner when this act passed, and could even himself have scarcely presaged his advancement to the woolsack when that fatal "Ist of August, 1836, should have come round. It did so happen, however, that Lord Cottenham and Master Brougham between them (Master Brougham happened to be the Vacation Master in 1836-here, again, it was impossible there could have been any fore-knowledge or contrivance when the act was being framed) had the appointment of the trustees of nearly all the charity estates held by municipal corporations in the country; for, as a matter of course, scarcely any had arranged their affairs by the day in question. The partisan faculties of the persons entrusted with the appointment was manifest by a majority being given, with, we believe, scarcely a single exception, to the Radical party; although, certainly, the municipalities were much rather conservative in their inclinations. Another equally glaring instance was given near the end of his career-qualis ab inceptu -in the appointment of County Court judges. Every one of these, sixty-nine in number, were “ good men and true,"— of undoubted Whig principles—with the single exception of a gentleman who had been consulted by Lord Lyndhurst in framing the bill, upon the express promise of a judgeship.
Another striking instance of this partisan feeling was manifested in the O'Connell writ of error case in the House of Lords. Though delivering a judgment contrary to the great majority of the judges, and on a question of criminal law, in which he had never had the smallest experience, his lordship was not ashamed to conclude his judgment in the following memorable words :-“ The opinion I have now expressed I formed early in the argument at the Bar. I have carefully considered