seeking practice as a conveyancer under the bar, received a Case for his
opinion, in consequence of a solicitor’s having cancelled the work. Mr
Sugden’s opinion differed from that which, though given by an eminent
counsel, had dissatisfied his client, and proved to be correct. In a
short time he found himself in large and rapidly increasing business.
Two years after the appearance of his book, namely in 1807, he was
called to the bar; and the first trace of him in the reports is to be
found in the 14th volume of Vesey Junior’s _Reports of Cases in
Chancery_, p. 302, on the 18th March in that year, in the case of
_Browne_ v. _Like_, which was, in fact, the first case he ever argued,
and before that very eminent judge, Sir William Grant, then Master of
the Rolls. Mr Sugden’s senior on that occasion was Sir Samuel Romilly,
who left him to open the case. He has since said, that when he first
rose, at the corner of the back bench in that dusky little court, his
knees shook under him; but if this were so, he disguised his
nervousness, and spoke, as we have heard, with apparent calmness and
self-possession,—so effectually arguing the first of the two points in
dispute, and the main one, that, on his proceeding to the second, to his
surprise, Mr Richards, subsequently Chief Baron of the Exchequer, who
led for the defendant, turned round and told him that they should
abandon that point; thereby so encouraging the young counsel, that, in a
more lively and confident frame of mind, he proceeded to his second
point. His opponents were unable to answer his lucid argument; and after
a few words in reply from Sir Samuel Romilly, the court decided in
favour of the plaintiff, and thus enjoyed Mr Sugden his _prædulce decus
primo certamine_! This his first case was a small affair in point of the
property involved, but has its special interest, as far as he is
concerned—not only as occasioning his maiden effort, but because it
affected a branch of the law which, not long afterwards, fell under his
vigorous assault, as most vexatious and oppressive—the enrolling of
Annuities. The facts were shortly these: An uncle had bequeathed to his
niece, for her sole and separate use, a life interest in the dividends
on a small sum in the Funds, vested in trustees for that purpose. Soon
afterwards she married, and, with her husband’s concurrence, _bonâ fide_
sold to Mr Sugden’s client, for £140, twenty pounds a-year of the
aforesaid dividends; but no memorial of the deed of sale was enrolled
according to the Act then in force, and since repealed. The two
questions were, whether the lady had power to sell these dividends? and
whether the transaction _was_ a “sale, out and out,” or the grant of an
annuity? in the former case requiring no enrolment. The first point was
given up,[11] and the second decided against the defendant. Mr Sugden’s
second case in court, as far as we have been able to trace him, was the
well-known one of _Sloane_ v. _Cadogan_, in the Rolls Court in the year
1808. His own outline of his elaborate argument is to be found in the
appendix to the “Vendors and Purchasers.” Those clients of Mr Sugden who
are still living, tell of the peace of mind which ensued their securing
his services as their conveyancer; so prompt, correct, decisive, was he
as an adviser, and, as a draftsman, neat, concise, and elegant. In his
case, confidence was _not_ a plant of slow growth. His practice grew
apace in chambers, and he began more and more frequently to appear, not
only in courts of equity, but in those of common law, to argue questions
connected with conveyancing, and the law of real property: quickly
conciliating the respect of opponents, and of the bench, by his exact
and extensive knowledge, and masterly use of it. Great as was the
pressure of his chamber practice, and constantly increasing as were his
appearances in court, Mr Sugden yet found time to prepare two new
editions of his “Vendors and Purchasers,” as we have seen, in the years
1806 and 1808, that of the latter year in a far more systematic form
than any of the former had exhibited, being, as he now tells us, “the
first divided into sections, with the _placita_ numbered.” And as if
even all this were not sufficient, the selfsame year 1808 saw another
important work of his, of a much higher order than his former one, as of
a more abstruse and scientific character—his Treatise on POWERS. This
elaborate and systematic work, which we regard as eminently
characteristic of its author’s legal genius, at once elevated him—now in
his twenty-seventh year—to a conspicuous position in the foremost rank
of living lawyers. It has ever since continued a text-book of the
highest repute—we might almost say, though in its authors lifetime, of
authority—and has passed through seven large editions, every one
prepared by the indefatigable author, who, in his preface to the first
edition, modestly pleaded, “as an excuse for any inaccuracies in it, the
necessity of devoting his time to other labours, from which moments were
snatched for this performance.” He is here speaking of his labours as a
conveyancer in full practice, whose toils are severe and unremitting;
requiring a close exclusive attention, if he would not run the risk of
making shipwreck of his reputation by perilling, or actually
sacrificing, the important interests confided to his skilled experience.
To such a master of his art as Mr Sugden, these toils would be lightened
as far as their troublesome nature admitted. The _Practical Treatise on_
POWERS, we regard as one of the most remarkable performances on record
in the literature of the law, especially as that of a conveyancer
comparatively so youthful. The attempt to give a mere general reader a
fair notion of what the lawyer means by “powers,” would be about as
hopeful as to explain to a young lady the doctrine of differential
calculus. To form an idea of this kind of “Power,” he must be apprised
of the nature of “Use,” of a “Trust,” of the old common law, and after a
great statute. Blackstone, that exquisitely elegant expositor of
everything susceptible of exposition, declared it “impracticable,” in
the plan of his _Commentaries_, “to pursue the doctrine of Uses through
all the refinements and niceties which the ingenuity of times abounding
in subtle distinctions, deduced from this child of the imagination;” “a
notion transplanted,” he elsewhere tells us, “into England from the
civil law about the close of the reign of Edward III., by means of the
foreign ecclesiastics, who introduced it to evade the statutes of
mortmain.” Would our non-legal readers set out with us, if we were so
disposed, to follow this _ignis fatuus_? Doubtless they would be as
unwilling to follow as we to lead. Suffice it to say, therefore, that
the introduction of Uses and Trusts produced a great revolution in the
transfer and modification of landed property, forming “a law whereupon,”
says Lord Bacon, in his _Reading on the Statute of Uses_, “the
inheritances of this realm are tossed at this day, like a ship upon the
sea, in such sort that it is hard to say which bark will sink, and which
will get to the haven.” It has, however, constituted the main-spring of
the delicate and complex machinery of the conveyancer—to whose craft,
directly or indirectly, fortunate reader! you are indebted at this
moment for the safe enjoyment of your estates, however small, however
large. Yet it would be interesting to an historical and reflecting
reader, to contemplate the great wrestling-match between the Legislature
and the astute Chancery lawyers of the day—how each in his turn defeated
the other, and how it ultimately contributes to the present division
between our systems of law and equity. “Uses” and “Powers” are the means
by which our existing method of “settling” real estates is effected and
maintained, enabling, as they do, the possessor to chalk out the future
enjoyment of it in as many contingencies, and for as long a period, as
the policy of the law admits; and no little of the intricacy of the
existing system is due to the exacting ambition or far-seeing
beneficence of owners of property. Now, “Sugden on Powers” forms a _sine
quâ non_ of the practical conveyancer; and if the student, after
acquiring a knowledge of the doctrine of Uses, of which that of Powers,
says St Leonards, is only a branch that has greatly surpassed in growth
its parent stock, he will find that three-fourths of his difficulties
have vanished. We heard some years ago, and now know it as a fact, that
the late Sir Robert Peel once laughingly told Sir Edward Sugden, at
dinner, that he had, from what he had heard of the difficulty of this
book, regarded it as a sort of legal Euclid; and having ascertained, he
said, that the third section of the first chapter was the _Pons
Asinorum_ of lawyers, he had resolved to master it! So having sat down
for that purpose, he succeeded, as he averred, and had found out all
about _borrescimus referentes_!—“_Scintilla juris._” The aforesaid
section has the inviting heading—“_Of Scintilla Juris_,” a matter which
has exercised, harassed, and well-nigh split the heads of a whole army
of judges—of Lord Bacon even, who seems to speak of it, Sir Edward tells
us, in a contemptuous tone. Sir Edward himself characterises it as a
fiction, invented by perverse astuteness to escape a difficulty which
itself only had created. When a man had indicated the future enjoyment
of his property, in certain specified contingencies, the antique
conveyancer, putting on a pair of huge magnifying-glasses, fancied he
detected in that man, who himself imagined that he had exhausted himself
of all connection with the property, a lambent spark of interest—a mere
metaphysical entity—a momentary seisin, adequate to “feed the use.”
“Over this invention,” says a masterly living writer on conveyancing
(Mr Hayes), “the old judges cast the veil of Latinity, and prudently
withdrew it, under the learned appellation of ‘_Scintilla juris_,’
from profane examination! Westminster Hall resounded with the debate.
The speeches of the eleven judges, who delivered their opinions
_seriatim_, occupied six days! The Lord Chief-Justice Popham declared
that _not_ to cherish the _scintilla juris_ would be to cast the whole
commonwealth into a sea of troubles, and endanger it with utter
confusion and drowning.” “The commonwealth,” adds the sarcastic
writer, himself a first-rate conveyancer, “had little to fear, but
common sense was in imminent danger of perishing between the
conflicting elements of fire and water.”
The “Scintilla” has learned advocates and opponents to this hour; among
the latter being Lord Bacon, Lord St Leonards, Mr Fearne, Mr Butler, Mr
Preston, and Mr Hayes—a sort of legal galaxy. Still, however, to change
the figure, the indurated stump of this doctrine retains a sort of
tenacious vitality in the prolific subsoil of legal ingenuity. While
thus dismissing a matter, savouring, as the unlearned and irreverent
reader might presumptuously imagine, somewhat of the mighty dispute
between _Tweedledum_ v. _Tweedledee_—let us intimate that the “Treatise
on Powers” is divided into nineteen elaborate chapters, each distributed
into sections, so disposed, and so treating an extensive and complicated
subject, as to be almost equally adapted for elementary and practical
purposes. It is a masterly combination of legal subtlety with the
strongest common-sense, applied with the utmost exactness to practical
exigencies—not, as he himself intimated, perversely suggesting doubts,
but supplying solutions for real difficulties. Of these solutions it
were easy to cite many instances of judicial adoption, such as will
readily occur to any well-informed professional reader.
“The author regrets,” he says, in the preface to the sixth edition
(1836), “that he has upon so many points differed from persons for
whom he entertains unfeigned respect, but he has rather considered the
principle of the rule than the weight due to the authority by whom it
was pronounced; and his own erroneous impressions may readily be
corrected; for it is but in few instances that he has given an opinion
without stating the reasons upon which it is grounded.”
And in another part of the same preface to this, his favourite
performance, occurs the following interesting passage:—
“We have many admirable treatises; but, for the most part, our legal
authors want either experience or time, and it ever must be so; for if
a man do not write on law while he is young, he probably never will;
and if at an advanced period he revise his early productions, with the
advantage of reputation and increased experience, _time_, without
which nothing important can be accomplished upon legal subjects, is no
longer at his command. And, besides, a counsel in actual practice can
seldom write freely upon decisions in which he has been engaged. If he
find fault with a decision against him, it may be imputed to partial
or perverted views; and if he disapprove of any in which he has been
successful, the criticism from such a quarter might afford the
groundwork of an appeal.”
The third edition (1821) was dedicated, by permission, to Lord
Chancellor Eldon, than whom no one entertained a greater respect for the
learning of the author,[12] who thus justly and eloquently eulogised
that great judge:—
“I felt the presumption of addressing such a request”—to be allowed to
dedicate to him the work—“to a judge who has so often excited the
admiration of the Bar, by a display, without effort, of an extent of
knowledge in every branch of jurisprudence, which the life of man
appears to be insufficient to acquire. If these considerations
deterred me from making the application, I was encouraged to it by
that judicial mildness and gravity—that urbanity and attention to the
youngest counsel in the Court—the true mark of a great mind—which
operate so powerfully to make your Lordship beloved by the Bar, and
soften the splendour which profound knowledge, high character, and
dignity shed around you.”
In the year following that which saw the third edition of the “Vendors
and Purchasers,” and the first of the “Treatise on Powers”—namely, in
the year 1809—Mr Sugden found time to write a valuable little work for
the guidance of lay gentlemen in the management of their estates,
entitled “A Series of Letters to a Man of Property, on Sales, Purchases,
Mortgages, Leases, Settlements, and Devises of Estates;” in a thin
octavo volume, consisting of twelve letters, all of a practical
character, perfectly intelligible to a non-professional man, and
admirably calculated to enlighten him as to the nature of these
all-important transactions. This work, which passed through six large
editions, has been long out of print; and but for the wise saw
concerning “the last straw which breaks the camel’s back,” we might
venture to intimate that Lord St Leonards would confer a very great
favour on the lay public by reproducing these letters, adapted to the
existing and greatly-altered state of our laws. We regard a work of this
description, undertaken as it was by a lawyer of first-rate attainments
and practice, as a very unassuming and disinterested service rendered to
those who stand not a little in need of it. Three years
afterwards—namely, in the year 1811—Mr Sugden gave to the profession an
edition of the posthumous work of Chief Baron Gilbert on “Uses and
Trusts”—which derived all its real value from the careful revision and
“Introduction” of the accomplished Editor. These notes and introduction
are of a most elaborate character, ably epitomising the law to which
they relate,—chiefly to springing and shifting uses, and the law of
perpetuities.
Between the years 1812 and 1836, we find Mr Sugden, from time to time,
publishing pamphlets on subjects of great practical importance—such as
the mischievous operation of the then (1812) existing Annuity Act,
which, as we have already intimated, he succeeded in getting expunged
from the statute-book, as productive of intolerable vexation and ruinous
litigation—himself drawing the act (53 Geo. III. c. 141) in the ensuing
year which repealed it, and substituted a better system.[13] Other
subjects to which he thus addressed himself were the improvement of the
administration of justice in the Court of Equity; the law of wills; the
rate of interest and redeemable annuities; the appellate jurisdiction of
the Court of Chancery and the House of Lords (1835); and on the late Mr
Humphreys’ proposal to repeal the Laws of Real Property, and substitute
a new code (1826), which Mr Sugden encountered with great power. His
pamphlet, which was very elaborate, attracted much attention, and passed
through three editions. With the exception of these minor and
intermitting literary exertions, and preparing new editions of his great
works, we now lose sight of Mr Sugden as an author—thus, as it were,
only occasionally showing his head above the deep waters of Chancery
practice—till a period to which we must in due time refer.
During his practice as a conveyancing counsel for about eight years,
he more and more frequently varied its oppressive monotony, by going
into courts of law to argue questions relating to real property. It
was about the year 1812 that he took to arguing special cases in the
Common Courts—a work at that time of great labour and anxiety, and
very little profit. His first case may be seen reported as _Goodtitle_
v. _White_, 15 East’s Reports, p. 174 (A.D. 1812). Here he was pitted
against and defeated his formidable brother conveyancer, Mr Preston.
In 1815 he argued in the same court, _Wright_ v. _Barlow_, 3 Maule and
Selwyn’s Rep. 512, but could not succeed in inducing the court to
overrule one of its own decisions. In the latter year he argued the
celebrated case of _Doe_ v. _Jesson_, 5 Maule and Selwyn’s, 95, and
again failed to convince the court; but on appeal, Lord Eldon and Lord
Redesdale reversed the decision, on grounds suggested and argued by Mr
Sugden. Another case argued in the same year, and reported in the same
volume (p. 482), was that of _Doe_ v. _Roach_, in which, after an
arduous argument, Mr Sugden convinced Lord Ellenborough, and
succeeded. He continued to argue cases in the Common Law Courts till
the year 1822, when he finally relinquished the practice. All the
cases reported in the latter year are reported in the fifth volume of
Barnewall and Alderson’s Reports. One of them, _Beard_ v. _Westcott_,
p. 801, affords an excellent specimen of his close and lucid
reasoning. Here he not only again defeated his astute opponent, Mr
Preston, but prevailed on the King’s Bench to differ from the Common
Pleas, though the opinion of the latter had been supported by the
judgment of the Master of the Rolls, Sir William Grant. Three other
cases, in courts of equity, afford instructive specimens of the power
of this great legal reasoner—_Bengough_ v. _Edridge_, 1 Simon’s Rep.
207, 227; _Cholmondley_ v. _Clinton_, 2 Merivale, 221, 241; _Lord
Deerhurst_ v. _The Duke of St Albans_, 5 Madd., 243.[14] He at length
began to consider whether he would not altogether quit chamber for
court practice; a very bold step, indeed, for one who, with a large
family to support, was realising an ample income, which he was about
to surrender, perhaps for ever. It may be well imagined that this
afforded matter for anxious and painful deliberation. His chambers
were crowded with pupils, his tables groaned under “papers,” and most,
if not all, the leading solicitors were his confiding and devoted
clients—bringing him far more business than he could by any effort
conscientiously dispose of, and which he therefore declined. A
distinguished member of the profession besought him with the utmost,
and almost tearful urgency, not to take a step which he believed, with
many others, would prove fatal to his prosperity. We have heard that
the late Vice-Chancellor of England, then Mr Shadwell, made no secret
of his opinion, that Mr Sugden’s appearance at the bar would be a
complete failure; he at length made up his mind, and passed the
Rubicon. Shortly before he did so, he said to our informant, an
eminent living Queen’s Counsel, with whom he was one night walking
home, “I am going to give up conveyancing, and go to the bar. I don’t
know whether it will answer, but I will try.” This was said with an
air of great resolution; and it is for us to tell the issue. The
intrepid aspirant after forensic honours found himself in a moment
deserted by almost every client of importance, who appeared to feel
personally offended at being, as it were, suddenly left in the lurch
by their favourite conveyancer, on whom they had been accustomed to
rely so long and so implicitly. For a very short time the forebodings
of evil appeared being realised; and he had to sit in court, day after
day, witnessing his once stanch clients pouring their briefs into the
hands of other counsel, without vouchsafing a solitary one to the
new-fledged one! Whatever inward mortification or apprehension he but
too probably experienced, he concealed; saying, perhaps, within
himself, If the great solicitors will not have me, perhaps some small
one may, one fine day, give me an opportunity of showing that they
will not slight me with impunity. By-and-by came Mr Sugden’s
opportunity; he was intrusted by a “small” solicitor with a “small”
brief; and it may be supposed with what perfect preparation such a man
would come into court. On his consummate knowledge of the law of real
property he consciously stood, as upon a rock; and his rigorous logic
enabled him to wield that knowledge with irresistible effect. It did
not take long to show those former clients, who stood aloof from him,
that they were making a mistake—which we may be sure their deserted
counsel would give them more and more frequent opportunities of
feeling. A few exhibitions of his easy mastery over business, his
steady self-possession and resolution, and the influence he was
visibly acquiring over the court, soon began to put a different
complexion on matters; and the commiserating smile, perchance, of
supercilious rivals somewhat suddenly began to settle into an
expression of something like a well-founded anxiety! Mr Sugden
advanced rapidly into practice of the highest class. Every moment,
during which he was not actually employed in court, he might have been
seen sitting there answering cases, generally of an intricate and
troublesome kind, buried in their details, undisturbed by all the
hubbub around him, for he was always distinguished by the power of
abstraction. All was thenceforth plain sailing. His old clients became
as anxious to secure his services in court, as formerly in chambers. A
few years afterwards—namely, in the year 1822—he received a silk gown
from Lord Eldon, thereby taking another decisive step in advance,
surrendering junior for leading business. In this year, also,
appeared, edited wholly and elaborately by himself, the sixth edition
of his “Vendors and Purchasers”—though how he found time to do so, at
such an anxious crisis of his fortunes, and with such uninterrupted
demands on his time and energies, it is not easy to discover. His silk
gown was a splendid success, silencing sneers and whispering
disparagements from every quarter. A consummate knowledge of the
principles and details of real-property law, and conveyancing, and
equity; rapidity of perception; conscientious devotion to the
interests of his clients; imperturbable coolness and self-possession;
the pith and brevity of his arguments, and lucid exposition of the
most involved facts—all combined to invest his advocacy with such
charms in the eyes of anxious solicitors and their clients, that
retainers were soon showered on Mr Sugden from all quarters—and it was
almost always a race between rival solicitors who should first retain
him!
As though his cup of labour were not yet brimful, on the 20th February
1828 Mr Sugden was elected a member of Parliament for the borough of
Weymouth and Melcombe Regis, after a ten days’ expensive and harassing
contest. He was returned twice afterwards for the same place, once on
being appointed Solicitor-General. Mr Sugden sustained three other
severe election contests, one for the Rape of Bramber in 1826, and two
for the borough of Cambridge, against the present Lord Monteagle. He
also sate for the borough of St Mawes (extinguished by Schedule A)
during the period of the Reform Bill debates, and twice for Ripon, after
his first retirement from the office of Lord Chancellor of Ireland, in
1835, as we shall presently mention,—representing that borough at the
time of his second and final acceptance of the Irish Seals, in 1841. We
doubt whether any man ever underwent greater labour than Mr Sugden
throughout the harassing but prosperous twelve or thirteen years
following his attaining the rank of King’s Counsel, particularly during
the period of his sitting in the House of Commons. We first saw him one
morning in the court of Sir Lancelot Shadwell, then the only
Vice-Chancellor; and, without at first knowing who he was, were forcibly
struck by his care-worn countenance. His manner was calm, but he looked
harassed, as though he had sate up the whole night. And perhaps he had!
He has often been known to return to his house, then in Guildford
Street, Russell Square, from the House of Commons, at three o’clock in
the morning, having been engaged incessantly in court all the previous
day till he went to the House; and at six o’clock his servant would
bring candles to his bedside, when he would sit up to read his briefs.
At a quarter to nine o’clock he would be seen at Westminster, holding
five or six consultations before ten o’clock, when the Lord Chancellor’s
and Vice-Chancellor’s courts opened; then he was retained probably in
every case in either court, which he would be addressing incessantly. At
the rising of the court, a little after four, he would betake himself to
the House of Commons, and remain here often till two o’clock in the
morning, or later, reading his briefs in a room at the coffee-house at
Bellamy’s of that day, during the intervals of his attending the
debates, snatching a hasty dinner at any moment that served. Once he
returned home at half-past six o’clock in the morning, and went to bed
till eight o’clock, when he rose to prepare for such another day as the
one before! How mortal flesh and blood—how any mortal brain, could stand
such tear and wear as this, seems a mystery; but he was blessed with a
fine constitution, and was of temperate and abstemious habits. The
income which he derived from these labours, as may easily be believed,
was very large. His fees were often enormous. The business rejected at
his chambers’ door must have amounted to many thousands a-year. In the
great case of _Small_ v. _Attwood_ he received four thousand guineas,
and accepted the retainer only very reluctantly, and after having
several times refused it. To protect himself as much as possible, he
refused, for a long time, for any consideration, to go into other courts
than his own, and never would give an opinion on a case, except in
consultation with another counsel. The facility with which he despatched
business was most remarkable; and that not cursory and slovenly reading
of his papers, but really mastering and exhausting them. One evening
after dinner, without leaving the room, he began to read his briefs for
the ensuing day, which was a “Motion” day; but those intrusted to _him_
were generally of difficulty and importance. He continued reading brief
after brief as long as they were supplied to him, in successive bags, by
his clerk. Having at length despatched them all, he saw himself
surrounded with so many as astonished himself. He had the curiosity to
count them; and in three hours and a half’s time he had thoroughly read
_thirty-five_! By this time it was eleven o’clock; and instead of
dropping exhausted into bed, he called a coach, and went down to the
House of Commons! We have heard that when this little feat was recalled
to his recollection, he vouched for its truth; but added, with a smile,
that he never could have attacked such a number of briefs, had they been
brought before him all at once, instead of in successive bagfuls! But
what, after all, is such a life as this, but one of splendid slavery?
In the year 1829, Mr Sugden was appointed Solicitor-General, succeeding
the late amiable and learned Sir Nicholas Tindal, on his receiving the
appointment of Chief-Justice of the Common Pleas,[15] thereby, of
course, superadding to his private professional labours the onerous
cares of office. He received, as usual, the honour of knighthood, but
did not retain office long. Passing over an interval of five years, we
arrive at the year 1834, when Sir Edward Sugden’s name appears for the
last time that we have been able to discover in the Law Reports, as
counsel. He had ceased to attend the Rolls Court long before he retired
from the Bar; and his last argument in the Vice-Chancellor’s Court is
that of _Cash_ v. _Dean and Chapter of Ely_, 7 Simon’s Rep. 211 (A. D.
1834); and his last before the Lord Chancellor was the well-known case
of _Kennedy_ v. _Green_, 3 Myhere and Keen, 699, in the same year. At
the close of his judgment in this latter case, Lord Brougham, as
Chancellor, took leave of the Bar. The seventh volume of Simon’s Cases,
above referred to, incidentally affords some evidence of the extent, at
that time, of Sir Edward’s business: the volume contains thirty-five
cases, of which he appeared as counsel in twenty-seven! On quitting the
Bar, he returned fees exceeding a thousand guineas.
On the 13th January 1835 Sir Edward Sugden was induced[16] to accept the
appointment of Lord Chancellor of Ireland; a post, however, which he
filled only three months, but long enough to exhibit the highest
judicial qualities, and to cause general regret at being deprived of
such services. On returning from Ireland he found himself, as we have
seen, “for the first time in his professional life, in full leisure,”
seizing the opportunity thoroughly to revise his “Vendors and
Purchasers,” of which, in 1839, he published a new edition—the tenth—in
three royal octavo volumes. In addition to this, he read and critically
examined every reported decision of all the courts of law and equity. In
1837 he reappeared in the House of Commons as member for the borough of
Ripon, taking an active part in the more important subjects of
legislative discussion, particularly those with which he was so
pre-eminently qualified to deal. In the month of October 1841, however,
he finally retired from the House of Commons, on being appointed a
second time Lord Chancellor of Ireland—a post which he occupied till the
month of July 1846. We believe we speak the universal opinion of the
Irish Bar, and indeed of the general public of Ireland, that it was a
fortunate day that saw this great and upright magistrate a second time
in its supreme seat of justice, to occupy it for a period of five years.
We feel justified in attributing, not now for the first time, the utmost
weight to the judgment of the Bench and Bar of Ireland. They are acute,
dexterous, and learned, and capable of appreciating thoroughly a display
of the highest judicial qualifications. Sir Edward himself declared on
one occasion, recently, that he could never mention the Bar of Ireland
but in cordial terms of affection and respect; and that, when he finally
quitted Ireland, he had experienced not one unkind or disrespectful
expression towards himself, nor witnessed any personal disagreement
among themselves. He was undoubtedly exact and severe in maintaining
that order in his court, without which, while justice is administered
with difficulty, judicial decisions may fail to command the prompt
respect and consideration which are their due. Himself profoundly
attentive to what went on, involving such important interests, he also
required that counsel should receive no interruption, and that they
should address themselves, with all due brevity and closeness, to the
real points at issue. An attentive and watchful Bar has a most salutary
effect on both judge and counsel; and a court gravely and decorously
ordered in all things, produces a fitting impression, as well on the
public as on even the most disappointed suitor. Sir Edward’s great
reputation as an equity lawyer stimulated counsel to make fitting
exertions, and a protracted desultory volubility found no encouragement
or even toleration in the court of Lord Chancellor Sugden, whose
presence put even the ablest of his Bar on their mettle: while his deep
attention repaid their pains in preparing and condensing their
arguments. We are not, however, left to the expression of our own
opinion. His first chancellorship lasted for only three months,—viz.
from the 13th January to the 22d April 1835; and on the latter day,
after having pronounced an important judgment, with a view to securing
the due and economical administration of justice in the courts of
equity, the Attorney-General rose and asked if his lordship intended to
sit again? and being answered in the negative, thus addressed the
Chancellor:—[17]
“My Lord, I should do great injustice to my own feelings, and, I am
persuaded, to those of the Bar of Ireland, if I allowed your lordship
to retire from that seat without attempting, however feebly, to convey
to your lordship the impression of the deep sense which we entertain
of the eminent ability and dignity of demeanour with which you have
discharged the important duties of your high office. Short as has been
the period of your lordship’s elevation, it has afforded ample
opportunity for the display of judicial powers of the highest degree
of excellence. Had that period been still shorter—had it been limited
to the observation of a single day—it would have been sufficient to
have impressed us with an indelible conviction of the profound,
extensive, and accurate learning, the patience and discrimination, the
masterly exposition and application of the authorities and principles
of equity, and, above all, of the ardent love of justice, and elevated
tone of moral feeling, which marked and distinguished your judgments.
I have only to add our acknowledgments for your uniform urbanity and
kindness, and to assure your lordship that you bear with you our
regret at your retirement, and our most anxious wishes for your future
happiness and welfare.”
To this affecting address the Chancellor, declaring that he had been
“totally unprepared for it,” made a brief and dignified reply,[18]
acknowledging the uniform kindness and attention of the Bar; after which
one of the most eminent of the solicitors rose and expressed their
concurrence in the sentiments which had been so eloquently expressed by
the Bar.
Sir Edward Sugden’s second return to Ireland as Lord Chancellor afforded
him a more extended opportunity of exhibiting judicial and
administrative power. It is perhaps needless to say, that he manifested
throughout the same acuteness, strength, stretch, and exactness of legal
judgment, which had elicited, at the close of his former brief tenure of
the Seals, the spontaneous and weighty approbation of all legal circles
in Ireland. Every one of his judgments appealed from, was affirmed by
the House of Lords, with the exception of two, and a single point in a
third. The propriety of even these few reversals, however, is gravely
questionable, and is denied by Sir Edward himself; who elaborately
examines the grounds on which they proceeded, in his _Treatise on the
Law of Property, as administered in the House of Lords_,[19] and thereby
enables those who are competent to do so, to pronounce an opinion for
themselves.
Two of his judgments in the year 1843 were attended by incidents so
remarkable, as testified to us by those who were present and vouch for
the facts, that we mention them. In the case of _Box_ v. _Jackson_,
Drury’s Reports 42–85, the case was deemed by the Chancellor of such
difficulty and importance, that he requested the present distinguished
Lord-Justice of Ireland, Mr Blackburn, then Master of the Rolls, to
assist him in hearing it. On a subsequent day the decision was given—the
Master of the Rolls reading an elaborate written judgment; at the close
of which the Chancellor, “without the assistance of a single note of any
sort,”[20] says our informant, “proceeded _instanter_ to deliver his
judgment, extending over seventeen pages, and comprising at once a
luminous and minute critical examination of a long series of decisions,
by Lord Hardwicke and other great authorities, from the year 1739 to
1818!” The point was, whether, by analogy to a fine at common law, the
court had power to take the consent of a married woman, and by force of
it give effect to a transfer by her of her equitable reversionary
interest in stock: the Chancellor deciding, concurrently with the Master
of the Rolls, in the negative. Immediately after delivering this
judgment, the court adjourned for the usual brief interval; and on the
Chancellor’s return, the whole Bar rose up to do him honour! The other
case is that of _Stackpoole_ v. _Stackpoole_, 4 Drury and Warren’s Rep.
320; in which, at the close of a learned argument by the most eminent
counsel in Ireland, on the Chancellor’s inquiring whether the parties
wished him to decide the question, or send a case to a court of law, and
being informed that “it was the general wish that his lordship should
decide the case at once,” he did so _instanter_, and elaborately, though
it happened that he had not taken a single note of any argument, or case
cited by counsel![21] Such an effect had the Chancellor’s promptness and
felicity of judgment in delivering his _vivâ voce_ judgments, that, on
his beginning to deliver written judgments, the present Mr Justice
Moore, on the part of the Bar, requested him to continue delivering
judgments _vivâ voce_. It must not, however, be supposed that the
Chancellor of Ireland was so absorbed with his judicial, as to be
unmindful of the important duties devolving upon him in his
administrative capacity. It were equally invidious and unjust to make or
insinuate comparisons between Sir Edward Sugden and his predecessors or
successors, in this latter case, or in any other respect; but all
practical professional people in Ireland know under what obligations the
public were placed, by their Chancellor, during the period referred to.
In conjunction with the then Master of the Rolls, Mr Blackburn, he
consolidated all the Orders of the Irish Court of Chancery, repealing
all preceding ones, so as to render it unnecessary any longer to refer
to a long series of Orders, many of them obscure, and totally
inconsistent with each other. This proved a great relief to the suitor,
and was a work of much labour; but, undoubtedly, no little had been
previously accomplished by Lord Plunket. Another great benefit conferred
by the Chancellor, was in respect of the grievous burthens inflicted
upon suitors in equity, under the name of Searches for Incumbrances. He
put an end to this grievance by issuing an order allowing solicitors a
sufficient fixed charge for such searches; while their costs in other
matters were placed on a new and equitable footing, as between them and
their clients. Again, tenants of land, over which Receivers were
appointed by the Court of Chancery, were subjected to serious hardships,
in respect of the payment of their rents, or the reduction of them in
hard times. These evils were effectually redressed by orders, and
otherwise, of the Chancellor. Various other beneficial changes in the
existing order of things were introduced by the Chancellor, beyond our
province here to specify, but the effect of which is felt to this day.
Infinitely to his honour were his unintermitted and powerful exertions
in behalf of lunatics. The public minutes and orders, after his visits
to the public and private asylums, where he made, personally, minute and
laborious inquiries, pointing out what required a remedy, and affording
that remedy where he had the power, would fill a not inconsiderable
volume. He took a special interest in the district asylums, and in the
proceedings for the custody of criminal and pauper lunatics. Nothing, in
fact, relating to this unhappy class of our fellow-creatures, escaped
the humanely watchful eye of the Chancellor, who issued orders
calculated to subject the proceedings of all in authority in these
institutions to publicity and responsibility. It is difficult
sufficiently to estimate the amount of benefit thus conferred upon this
large and deplorably afflicted class, and who, as will hereafter be
seen, appear to have been always subjects of Sir Edward Sugden’s special
solicitude, both judicial and legislative.
How it may be now, we profess not to be able to say; but it is well
known that the magistrates of Ireland occasioned the Chancellor, at the
troublous time of which we are speaking, almost as much anxiety and
trouble as his judicial duties. He instituted an order of procedure in
appointing magistrates, which operated most advantageously; his evident
object being to conciliate the respect of all classes for the vigorous
and faithful administration of justice, as well by these as by all other
functionaries. He superseded magistrates without hesitation, whatever
their position or influence, if he thought that the public interest
required it; of which a memorable instance is on record, greatly to his
honour, in respect of his resolute and impartial spirit. We allude to
his dismissal of a nobleman of the Chancellor’s own political party, and
his agent and brother magistrate, from the commission, for intemperate
conduct towards each other on the bench. The matter was brought before
the House of Lords, but the Government upheld their Chancellor with a
high hand. It was, however, in the Repeal year, 1843, that the greatest
amount of anxiety and responsibility was thrown on the Chancellor of
that then distracted portion of the empire. In compliance with the views
of the Government, he refused to appoint any man a magistrate who
belonged to the Repeal Association; and in consequence of their acts and
speeches, superseded on the same day Lord French and Mr O’Connell. A
storm was of course the immediate result. The Chancellor’s letter
conveying their dismissal was read in the House of Lords by Lord
Brougham, who defended Sir Edward in a generous spirit, amidst repeated
cheering; and it was indeed a most satisfactory and conclusive statement
of the principles on which Sir Edward had proceeded. Acting upon them,
he almost immediately afterwards removed numerous other magistrates,
amongst whom were Mr Morgan John O’Connell, and Mr Smith O’Brien, for
presiding at tumultuous Repeal meetings. When Mr Daniel O’Connell seemed
bent on raising the standard of civil war at Clontarf, on the 8th
October 1843, the Lord-Lieutenant (Earl De Grey) and the Chancellor went
to England, to consult definitively with the Government on the
threatening state of affairs; but on hearing of the meeting so
appointed, returned _instanter_ to Ireland. They pronounced the meeting
illegal, and took steps so formidable and decisive, that Mr O’Connell
and his agitation were crushed together. All this, however, is matter of
history—that of a very momentous period. The calmness and strength of
the Chancellor’s judgment, backed by his immense reputation, rendered a
service to the menaced cause of order and good government never to be
forgotten.
His judicial and administrative duties not being sufficient to satisfy
this _helluo laborum_—as surely we may with justice style him—he devoted
himself at every spare moment to the systematic revision of his
“Treatise on Vendors and Purchasers,” and the compression of it into two
volumes, instead of the three into which it had swollen in the preceding
edition.
In July 1846, Sir Edward a second time resigned the Irish seals, with
the regret and applause of the whole country, and especially of the
legal profession. His administration of justice was pronounced to be
unequalled in Ireland, even organs of public opinion not favourable to
his party giving him in several respects the palm over no less a
distinguished predecessor than Lord Redesdale. “He never,” says one of
these now lying before us, “mixed himself up in the party-politics of
the country: he had no followers or connections there; was ruled by no
clique, and ear-wigged by no favourites. He was distinguished as a great
Chancery reformer as well as a great Chancery judge. He reformed the
Master’s offices, and established a tribunal for the taxation of costs.
In matters of lunacy, and in the Accountant-General’s department, he
introduced large and sweeping changes, some of which have been followed
in England by Lord Cottenham.”
Relieved from the pressure of judicial and parliamentary business, Sir
Edward betook himself to his lovely retreat on the banks of the
Thames—Boyle Farm; but how his leisure for the next three years was
spent, is attested by a large royal octavo volume of nearly 800 pages,
now before us, entitled _A Treatise on the Law of Property, as
administered in the House of Lords_, published on the 11th January 1849.
We doubt whether any more remarkable work has been given to the legal
profession during the present century, having regard to the
qualifications of its author, the pains he has bestowed on it, and the
commensurate interest, difficulty, and importance of the subject-matter.
The general reader must needs take this for granted, as we have no means
of giving him detailed proofs of our assertion. Imagine a lawyer like
Sir Edward Sugden, who, previously to having been twice made Lord
Chancellor of Ireland, as we have seen him, had been _facile princeps_
as a real-property and equity lawyer at the bar for nearly forty
years,—dealing with every case of the least importance,—sitting down
with the pressure upon him of his own reputation, and a delicate sense
of responsibility; imagine, we say, such a man devoting all his
faculties to the task of weighing in the critical balance every decision
of the supreme Court of Appeal during the last thirty years, with a view
to developing them into a systematic treatise on the Law of Real and
Personal Property, in respect of all the great moot-points started and
disposed of during that long interval by this august tribunal, and
thereby placing that law on a solid foundation! We know of no book
entitled to be studied with greater attention and deference by any
lawyer, from a Lord Chancellor, Chief-Justice, and Judge, down to the
ranks of such of the junior bar as are capable of understanding and
appreciating a performance of so high an order. Not a case is here dealt
with which has not been evidently mastered in all its bearings, as if
the writer had had the responsibility of adjudicating upon it: the facts
and arguments, often of rare complication and difficulty, are in every
instance stated by himself, and with so much brevity and clearness as to
bring the point at issue at once before _competent_ eyes. Take, for
instance, the great case of _Doe_ v. _Perratt_, decided by the Court of
King’s Bench in 1826, occupying fifty-two pages in the fifth volume of
Barnwell and Cresswell’s Reports; and seventy-one in the sixth volume of
Manning and Granger—argued twice before the House of Lords, with the
opinions of the judges, summoned to attend, declared by Lord Cottenham
so much at variance, that “it was impossible that authority could be
more equally divided.” The whole history of the case, the points of
difference, and the main point itself, are disposed of with masterly
precision in fewer than eight pages; whereas, without such assistance,
it would require any man many hours to master the case; “a careful study
of which,” concludes the author, “though it may perplex the student,
will amply repay his trouble.” We had marked no fewer than twenty-one
cases, all of greater or less permanent interest and importance, thus
admirably dealt with, explaining difficulties, and pointing out where
they are open to grave doubts; but, we are bound to say, without losing
sight of the deference due to the exalted tribunal on whose decisions,
nevertheless, he is sitting in judgment—moreover, he who was destined so
soon after himself to occupy the Woolsack. To two only of the cases
referred to can we briefly allude, as richly repaying the best attention
which the reader can bestow upon them. The first is _Gibson_ v. _D’Este_
(pp. 614, 649), which is, so to speak, placed on the rack of an
excruciating legal criticism, and demonstrated, as we think, to be a
faulty decision. The other case is that of _Howard_ v. _Lord Digby_ (p.
162), also disapproved of by the author, all after a rigorous
examination. It is highly interesting, if for no other reason, for
exhibiting a vivid contrast between the characteristic methods of
dealing with legal subjects, by Lord Brougham and Lord St Leonards; the
one vigorous, graphic, and even dramatic—the other dry and cold, but
with a certain Saxon purity and vigour about his style of expression.
The subject is that of the right to pin-money; and Sir Edward has for
once deviated so very far from his wont, as to enliven his work by an
interesting note from his learned and accomplished friend Sir George
Rose, as to the origin of pin-money. To a great extent, the author, as
he explains, has relied on his own copious and authentic notes of the
arguments in cases where he was himself engaged as counsel—and gives us,
thus, accounts of cases decided between 1821 and 1826, not elsewhere to
be found reported. The subjects are classified as relating to contract
deeds, and settlements; testamentary dispositions; powers, in deeds as
well as wills; and the rights and liabilities of lessors and lessees,
mortgagers, and mortgagees, vendors and purchasers, husbands and wives.
How long the author was occupied with preparing this work we know not;
but we think no other living man would have ventured to do so under ten
or even twenty years’ deep consideration. But where is he that could
bring to bear upon the task such vast stores of experience and learning?
Shortly after the appearance of this _magnum opus_, the _Times_
newspaper (10th Dec. 1850) commenced a leading article with the
following allusion—equally applicable at the present moment, and for the
last five years—to the veteran in repose:—
“The name of Sir Edward Sugden is at once the ornament and reproach of
the legal annals of this country. Unrivalled in the depth and
minuteness of his knowledge of the more abstruse branches of the law,
unequalled for logical power and critical acumen in discharging the
duties of an advocate, a writer of the rarest excellence, a judge of
unwearied diligence, and of authority second to none, he has been
condemned by the vicissitudes of party and our wretched system of
political judgeship, to pass the latter years of his valuable life in
comparative obscurity and retirement; and this has happened at a time
when great lawyers and great men of all kinds are growing scarce among
us. Mediocrity is, if backed by party influence, everywhere
triumphant, while one of the greatest legal geniuses that has ever
adorned the bench, is carelessly flung aside, as if the country were
too affluent in talent to require the aid of his extraordinary
abilities!”
The occasion of this article was a speech delivered the day before at a
county meeting in Surrey by Sir Edward Sugden—the only time in his life,
as he stated, of his having done so—on the subject of the Papal
Aggression. “That speech,” continues the editor, “appears to us one of
the best which has been delivered on the occasion; combining a spirit of
toleration and charity with a masterly exposure of the hollow sophisms
of the Romanists and their pseudo-liberal apologists, and an exposition
of the law showing indisputably that whatever difficulty may lie in the
way of punishment, there is no doubt that an offence has been
committed.” The speech in question deserved this eulogy, and had instant
and great weight with the country at large, and the Legislature.
In less than a month’s time afterwards, Sir Edward Sugden made a second
public appearance of quite a new sort—to vindicate the law of the land,
which he himself had presumed to make such, against certain groundless
accusations by Mr Dickens, in one of his tales, in a chapter headed “The
Martyrs of Chancery.” The sprightly and gifted novelist had fluttered
into the dusky regions of fact and law, with which he was necessarily
unfamiliar; and he, as well as others who laboured under similar
misconception on the subject of imprisonment for contempt of court, was
at once silenced by Sir Edward’s lucid and authoritative account of the
true state of the case.[22] To that subject, however, we shall have to
advert again, in considering Sir Edward Sugden in another phase—that of
legislator.
So determined was Sir Edward to illustrate the modest motto he had
chosen—_Labore vinces_—that the same year, 1851, of which we have been
speaking, beheld two more elaborate works of his appearing respectively
in the months of June and December. The former was _An Essay on the New
Real Property Statutes_, of the last few years, in one small octavo
volume—a work so highly esteemed as to find its place at once in every
lawyer’s library. The latter was a _Concise and Practical View of the
Law of Vendors and Purchasers of Estates_, being a condensation of the
two large volumes of the existing work into one octavo volume of upwards
of 700 pages, being “an attempt,” as he states in the preface, “to
compress the whole of the law on this important subject, into as narrow
a compass as appeared compatible with accuracy and distinctness”—for
which purpose “many portions of the original work have been rewritten,
and every proposition added or retained, has been anxiously considered.
The references, in some places, occupy nearly as much space as the text
in its compressed form; but the writer was unwilling to deprive the
student and the practitioner of any portion of a collection of cases
which,” he adds, “it has required many years and much reading to bring
together.” He also added no fewer than five hundred new cases! This work
was not long in following the fortune of its predecessors, and was in
time succeeded by that admirable contribution to legal literature, which
appeared at the commencement of the present month of January, and of
which we have already spoken. We have compared it with the “Concise
View,” and the edition at large which that concise view followed, and
have no hesitation in expressing our opinion that the alterations
introduced are of great magnitude, and materially enhance the value of
the work as a comprehensive, accurate, and authoritative statement of
the law on this all-important subject. The second chapter, for instance,
is entirely new, consisting of an elaborate and luminous exposition of
“Sales to Railway Companies,” and containing “the law, so far as it
places a Company, and an owner of land, in the relation of vendor and
purchaser” (p. 57). The work is, in short, a perfect masterpiece of
practical jurisprudence, more worthy than ever of the deference which
has been paid to it for so long a series of years by even judicial
authorities.[23] Before, however, quitting Sir Edward in his literary
capacity—seeing him, as an _ex_-Lord High Chancellor of Great Britain
devoting himself as patiently and laboriously to the re-editing and
reconstruction of his earliest publication, as if his professional
interests and reputation depended upon it entirely—let us offer one word
of suggestion to those whom it may concern. Let a young gentleman, who
has just donned his wig and gown, study to imitate the example of this
great living sage; and if he must turn author at a period when he is
really only commencing as learner, let him well consider the nature of
the work which he proposes to offer to a learned profession. Let it not
consist of hasty and flimsy comments on newly-enacted statutes, or on
heads of law already bristling with text-books; but let a real _want_ be
looked for, and then let due time and consideration be devoted to
supplying it. Thus it was that Edward Burtenshaw Sugden planted the
acorn which he has lived to see flourishing in full vigour as the oak.
Within little more than a year after the _Times_ newspaper had pointed
to Sir Edward Sugden’s name as at once “the ornament and the reproach of
the country,” that name had ceased to be a reproach; for the month of
February 1852—within only a few weeks of his laborious appearance as an
author, on the formation of the Earl of Derby’s Administration—saw Her
Majesty deliver the Great Seal into his hands, those of as profoundly
learned a Chancellor as ever served any of her predecessors. When, as
Lord St Leonards, he first took his seat at Lincoln’s Inn, the spacious
hall was so densely crowded with professional men, collected to see and
do honour to the greatest lawyer of the age, that numbers were unable to
get within the doors. The new Chancellor settled into the office, as it
were, in a moment, as quietly as if he had occupied it for years. In
fact, a more thoroughly businesslike Chancellor never held the Great
Seal, as all with whom he had to do found out very soon. His practical
penetrating sagacity, and boundless learning, rendered the appearance
before him of the most able and experienced counsel, a matter, for them,
of serious moment. They were somewhat peremptorily taught to come to the
point as soon as possible, before one who puffed away the chaff from the
wheat in a moment; who was always ready for work, and looked askance at
suggested adjournments or postponements. The first appeal case before
him in the House of Lords, on the 10th March 1852, only a week after he
had taken his seat on the Woolsack, was that of _De Beauvoir_ v. _De
Beauvoir_ (reported in the third volume of the _House of Lords’ Cases_,
p. 524), involving the right to nearly six hundred thousand pounds,
dependent on the construction of a singular and obscurely-worded will.
The matter was argued at great length by eminent counsel; but when they,
and all others, expected that the Chancellor would, as had been usual,
ask for the “papers,” and “take time to consider,” he rose from the
Woolsack, and delivered at once an admirable judgment, luminous and
conclusive, occupying nearly twenty pages of the printed Report—going at
length into, ably commenting on, and felicitously distinguishing a
number of cases cited—as may be seen on reference to the report; which,
we have personally ascertained from the learned reporter who took it
down in short-hand, is given as it fell from the Chancellor’s lips. One
of the most eminent solicitors in England recently observed, that he was
concerned in an appeal arising out of a suit of many years’ standing,
which had gradually become so complicated that neither counsel nor
solicitor could really understand it! After lengthened argument before
the Lord Chancellor, he rose from the Woolsack, as our informant and all
others supposed, to move that judgment should be postponed to a future
day; but—“nothing of the sort,” said the solicitor; “he immediately
began to deliver judgment, which sounded as if he were reading off a
chapter of his book on Powers. He cut us up root and branch. I saw only
too clearly where we had all gone wrong; and had not a word to say,
though he dismissed our appeal with costs!” How Lord St Leonards
discharged his duties in his own court, it may be safely left to every
practitioner in it to say. His manner was somewhat dry and quiet, but
had real judicial dignity. Nothing could exceed the patience and
attention with which he listened to every counsel who really addressed
himself to the merits of the case under consideration, but who, at the
same time, had knowledge and tact enough to see how early and
tenaciously the Chancellor had grasped these merits, and to shape his
course accordingly. No suitor ever had to complain that his case, how
tangled and multifarious soever, had not been completely ransacked in
quest of its merits, down to even the minutest details. And conclusive
evidence of the sterling quality of the judgments which he
pronounced—not after time taken to consider, but at the close of the
argument—is afforded by the fact, that not one of them was reversed, or
even qualified, on appeal. There is one interesting passage to be found
in the evidence of Lord St Leonards himself, before the Lords’ Appellate
Jurisdiction Committee of last session:—
“I could not myself have performed the duties of the office which I
filled, except by disposing, as far as I was competent, of the cases
as soon as the argument had closed; for otherwise I should have had
the whole arguments operating and weighing upon my mind, night and
day, till I had disposed of them; and the effect was, that there was
no delay in giving judgment. Despatch is not undue haste. With a
knowledge of the law on the part of the judge, and undivided attention
to the arguments, I believe that, in a great majority of cases, a
perfect master of the law may dispose of the greater proportion of
them as soon as the arguments are closed.”[24]
In the great case of _Egerton_ v. _Brownlow_,[25] we are not certain
whether Lord St Leonards delivered a _vivâ voce_ or a written judgment;
but there it is, on record, a fine specimen of judicial reasoning
applied to a question lying, however, very nearly on the confines of
legislation. Before quitting Lord St Leonards in his judicial capacity,
we must indicate the great service he did by his several rules and
orders, whenever he deemed them necessary, in order to improve and
quicken procedure in equity. Short, too, as was his tenure of the Great
Seal, he disposed of such patronage as fell to his lot with a scrupulous
regard to individual fitness, of which we could cite several instances
of gentlemen promoted without any solicitation whatever, and to their
own surprise. In another particular the conduct of Lord St Leonards is
worthy of observation,—his objection to the facile and profuse creation
of Queen’s Counsel, against which, as having a mischievous and
derogatory tendency, he appears to have long set his face. In 1835, in
his letter to Lord Melbourne on the Appellate Jurisdiction, we find him
saying,—“I believe the true way to recruit the Inner Bar is not by
batches, but by steadily advancing individuals, as their claims appear,
by the exhibition of talents, learning, good conduct, and a command of
business;” and he traces one cause of “the evil of excessively long
speeches by counsel, to the great competition at the bar, since the
number has received such large additions.” Acting uniformly on these
principles when in Ireland, he did not wait to be solicited for a silk
gown, as for a favour, by any gentleman possessing proper claims, but at
the proper moment offered it to him; thereby infinitely enhancing its
significance and value. While holding the Great Seal in England, he
found the Inner Bar full, and did not appoint a single Queen’s Counsel.
In considering Lord St Leonards as a legislator, it is not our intention
to dwell on his parliamentary speeches, though they have been many and
important. That against the bill of 1853, imposing duties on succession
to property, as well as the protest which he entered in the Journals of
the House, appears to us unanswerable. His speech on projected
improvements in the administration of the law, on the 16th November
1852, gave universal satisfaction; and that on life-peerages, on the 7th
February 1856, was a calm but excruciating exposure of not only the
impolicy, but the _illegality_ of that step. The speeches, indeed, on
that subject, of the Earl of Derby, Lord Lyndhurst, Lord St Leonards,
and Lord Campbell, will ever reflect bright credit on the hereditary
branch of the Legislature.
In sketching the character of a late luminary,[26] we “asked, with
sorrowful sincerity and reluctance, what did he ever do to advance the
interests of the profession to which he belonged?—and what page in the
Statute-Book attests his handiwork?” In the case of the distinguished
person now before the reader, the former question has been abundantly
answered in the foregoing pages; and the latter admits of as conclusive
and triumphant an answer, by a simple reference to the chief acts of
parliament for which Lord St Leonards is responsible, and many of which
were drawn by his own hand. We have taken some trouble to insure
correctness,—but if we have made any material errors or omissions, we
must trust to some future opportunity to correct them. Those which we
cite will be found of an eminently practical character, conferring great
and permanent advantage on the community, and redressing evils with
which his vast knowledge of business, and unwavering watchfulness,
peculiarly qualified him to deal.
(1.) The Annuity Act of 1813 (statute 53 Geo. III., c. 141), itself
recently repealed, together with the Usury Laws, was drawn by Lord St
Leonards, following out those views which he had urged in his pamphlet
of 1812. That act had the signal merit of putting an end to a floodtide
of ruinous and disgraceful litigation, for which Mr Sugden richly
deserved the thanks of the country. (2.) The statute 6 Geo. IV., c. 93
(1825), to “render valid certain decrees and orders at the Rolls Court,”
rendered necessary in consequence of Chief Baron Richards and other
judges having sate during Sir Thomas Plumer’s illness at the Rolls
Court, without legal authority. To avert the public scandal of avoiding
so many important judicial acts, Mr Sugden, with Lord Eldon’s consent,
prepared this bill, which became a law at the close of the session in
which it had been introduced. (3.) The next statute is one reflecting
peculiar lustre on the name of its framer—that of 1 Will. IV. c. 36
(1830)—in itself a code, having for its main objects to prevent long and
continued imprisonment for contempt; to afford assistance and relief to
parties poor and ignorant; and prevent obstinate parties from impeding
the course of justice after the decree or order of the Court. This act
was, two years afterwards, greatly extended by (4.) Stat. 4 Will. IV. c.
58. Had these been the only acts for which the country is indebted to
Lord St Leonards, he would have earned an enduring title to their
gratitude.
Having humanely provided a legislative remedy, he made the noblest
personal efforts to carry it into prompt effect, frequently visiting the
Fleet Prison—(how he found the time is hard to understand)—seeing and
conversing with the impoverished prisoners, giving them wise advice, and
himself actually paying, out of his own purse, the costs for which they
were incarcerated, so as to procure their immediate discharge—and even
assisting them afterwards! The scandal of throwing a man into prison for
not “answering,” and then leaving him there to rot out the rest of his
life, thank Heaven, can no longer exist. When Chancellor of Ireland, Sir
Edward Sugden extended this admirable measure to that country, by (5.)
Stat. 5 & 6 Will. IV. c. 16 (1835), the Government taking charge of the
bill. (6.) Stat. 1 Will. IV. c. 46 (1830), amending the laws relating to
Illusory Appointments, restored the law to its original state, putting
the rule at law and in equity on the same footing with respect to
appointments: a provision removing at once a prolific source of
litigation, and enabling a parent or trustee to act so as best to meet
the exigencies of a family, and give children aid and provision in
proportion to their actual wants. (7.) Stat. 1 Will. IV. c. 47 (1830),
consolidates and amends the law for payment of debts out of real
estate—one of great importance, and a considerable step in advance, the
Legislature having since gone still farther in that direction. (8.)
Stat. 1 Will. IV. c. 60 (1830), is another act of great importance,
investing courts of equity with ampler powers than they had possessed,
with regard to trustees and mortgagees, and enabling them to make a
perfect title to whatever they sold. This act Sir Edward undertook at
the request of Lord Eldon; and the Legislature have since gone much
farther in that direction. (9.) Stat. 1 Will. IV., c. 65, extended to
Ireland by (10) 5 and 6 Will. IV., c. 17, arms courts of equity with
very useful powers over the property of infants, married women, and
lunatics. (11.) Stat. 2 and 3 Vict., c. 11, extended to Ireland by (12.)
Stat. 7 and 8 Vict., c. 90, with careful modifications, conferred a vast
boon on purchasers, and greatly facilitated the transfer of
land—providing as it did a complete registration of various kinds of
incumbrances, collected in one office, and allowing them to be searched
for a mere nominal sum—a shilling. These acts were (in 1855) followed by
(13.) Stat. 18 and 19 Vict., c. 15, conferring on purchasers further
important provisions for their protection. (14.) Stat. 5 and 6 Vict., c.
123, for the first time required private lunatic asylums to have a
licence, and placed them under salutary restraints and supervision. This
act had to encounter fierce opposition, but succeeded, followed up, as
we have already seen, by the Chancellor’s vigilant personal attention,
in greatly ameliorating the condition and management of lunatics. (15.)
Stat. 8 and 9 Vict., c. 115, appointed a taxing-master for the Irish
Court of Chancery, thereby greatly relieving the overburdened Masters of
the Court. This has since been carried much farther. (16.) Stat. 15
Vict., c. 24, after a vehement opposition, put an end to an evil utterly
intolerable, and has proved one of the greatest blessings to the people,
afforded by modern legislation. It puts an end to the incessant defeat
of wills by petty technical objections, embracing every evil conceivable
to occur through haste, ignorance, or accident. The editors of the new
edition of the _Standard Text-Book on Wills_ (Jarman), omit a long
chapter of decisions of this kind, as “it is almost impossible that the
validity of any will should hereafter turn upon them.” (17.) Stat. 15
Vict., c. 48, amends the law relating to the property of lunatics. (18.)
Stat. 15 Vict., c. 80, abolishes the Masters’ offices, and expedites the
business of the Court of Chancery. (19.) Stat. 15 Vict., c. 86, amends
the practice and course of proceeding in the Court of Chancery. (20, 21,
22.) Stat. 16 and 17 Vict., c. 70, is for the regulation of proceedings
under commissions of lunacy, and consolidating the former acts,—and
itself constitutes a most important code; c. 96, for regulating the care
and treatment of lunatics; c. 97, consolidating and amending the laws
relating to lunatic asylums for counties and boroughs, and the
maintenance and care of pauper lunatics. When these three acts were
passed, Lord St Leonards declared, in his place in the House of Lords,
that no other country possessed such excellent provisions for the care
of lunatics and of their property—and none more minutely and anxiously
careful than those which secure the welfare of pauper lunatics. He might
have added, that the preparation of these enactments entailed upon
himself protracted and exhausting labour. (24) Stat. 16 and 17 Vict., c.
98, provides for the further relief of suitors in the Court of Chancery,
appropriating its unclaimed funds to the relief of the suitors, to whom
they properly belong. This, also, is a very important act. Lastly, (25.)
Stat. 17 and 18 Vict., c. 60, has for its humane object to make more
effectual provisions for preventing cruelty to animals.—Here ends, as
far as we know, the catalogue of Lord St Leonards’ contributions to the
Statute-Book of his country: twenty-five in number, and those not showy,
rash, and slovenly, but deeply-considered and skilfully framed; the
result of great forensic and judicial experience, or, in some instances,
masterly developments of alterations and improvements contemplated by
others. We are, moreover, inclined to consider Lord St Leonards largely
entitled to credit for the original suggestion of that bold enactment
which called into existence the Incumbered Estates Court in Ireland.
Unless, indeed, we are mistaken, he lately claimed the paternity of that
measure, in speaking in the debate for renewing the powers of the
Commissioners. It is said that in his original sketch of the proposed
Court, transmitted to the late Sir Robert Peel, he observed that the
Court ought to exist only until the mischief should have been remedied;
that it was, as regarded property, what the suspension of the Habeas
Corpus Act was with reference to personal liberty. It is, however,
undoubtedly possible that the existing scheme may have been devised by
the Government before they became possessed of Sir Edward Sugden’s
communication to Sir Robert Peel; though this has not hitherto been
asserted. And these legislative labours have been continued during a
long series of years, while Lord St Leonards was either burthened with
enormous practice at the bar, or absorbed with judicial cares as twice
Chancellor of Ireland, and afterwards of England (his is the only
instance on record of such promotion;) or as a law-lord sitting on
Appeals; or engaged from time to time writing profound and universally
accepted treatises on the law, or carefully adapting them to successive
variations in that law. The patience, the self-denial, the indomitable
industry and resolution with which his great endowments and acquirements
have been and continue to be devoted to the service of his profession
and of his country, will enshrine his name in the memory of his
countrymen, long after he shall have passed away from the scene of his
untiring exertions. As author, advocate, judge, and legislator, he
appears to exhibit a combination of claims to our respect and gratitude,
that is unique.
_Printed by William Blackwood & Sons, Edinburgh._
ENDNOTES:
Footnote 1:
These views are not an after-thought, but will be found expressed in
our article on “The Peace,” written before the Treaty of Paris was
ratified. _Inter alia_, alluding to the probable results of the
Treaty, we observed—“By guarding the line of the Danube, while leaving
open the Transcaucasian frontier and the shores of Anatolia, you
change the main line of Russian advance from the western to the
eastern side of the Black Sea. You divert it from Europe into Asia,
and by so doing change the Powers by whom such southward progress
brings her into collision. On the Danube, Russia has Austria for a
rival; but for Asia Minor, Austria has no concern,—there Russia will
meet no rival but Great Britain, who will be left to struggle with her
single-handed.” And we characterised this as “the best method for
directing the march of Russia from Europe into Asia, and thereby not
only freeing France and her Austrian alliance from the rivalry and
pressure of the Czar, but of raising a new and permanent source of
antagonism between Russia and England,—every step of the former of
those Powers necessarily bringing her nearer to the Indian empire, and
line of communication therewith, of the latter. The general public,
alive only to the interests of the moment, may underrate the
importance of this stipulation, but its consequences will be none the
less momentous because not immediate. It is a legacy of hostility
between Russia and England which the future will duly honour.”—(_May
1856_, p. 617.)
Footnote 2:
The relation subsisting between Prince Yusoof and the Shah was openly
acknowledged by the latter, who, even as reported by the Teheran _Rouz
Namé_, or official journal of court news, thus addressed the Prince,
when subsequently captured by the Persian army which besieged
Herat:—“At that time we considered thee as one of our faithful
servants, and thou wert under the shadow of our protection; and as it
was for the advantage of our kingdom, and of the independence of
Herat, to resist the overwhelming march of Dost Mahomed Khan, we
therefore sent thee the reinforcements which thou didst require.”
Footnote 3:
Fact.
Footnote 4:
See the Scheme of Members for Minorities.
Footnote 5:
1st September 1856.
Footnote 6:
Wilkinson’s _Wallachia and Moldavia_: London, 1820.
Footnote 7:
The treaty of Kainardjik (10th July 1775) gave the right of
interference in the affairs of the Principalities to the Russian
ministers resident at Constantinople, and bound the Porte to pay
regard to their representations.
Footnote 8:
_A Concise and Practical Treatise of the Law of Vendors and Purchasers
of Estates._ By EDWARD SUGDEN (now Lord St Leonards). 13th Edition. 1
vol. royal 8vo. 1857. Sweet, London.
_Practical Treatise of Powers._ By the Right Honourable Sir EDWARD
SUGDEN. 2 vols. 8vo. 7th Edition. 1845.
_The Law of Uses and Trusts._ By the late Chief Baron GILBERT; with
Notes, References, and an Introduction, by EDWARD BURTENSHAW SUGDEN,
Esq., Barrister-at-Law. 1 vol. 8vo. 3d Edition. 1811.
_A Treatise of the Law of Property, as Administered by the House of
Lords._ By Sir EDWARD SUGDEN. 1 vol. royal 8vo. 1849.
_An Essay on the New Statutes relating to Real Property._ By Sir
EDWARD SUGDEN. 1 vol. 8vo. 1852.
_A Series of Letters to a Man of Property on Sales, Purchases,
Mortgages, Leases, Settlements, and Devises of Estates._ By Sir EDWARD
B. SUGDEN. 1 vol. 8vo. 6th Edition.
_Pamphlets_, &c.
_Speeches_, &c.
Footnote 9:
Preface to the fourth edition of the “Vendors and Purchasers” quoted
in the preface to the thirteenth edition. In justice to the memory of
the late Mr Preston, one of the most eminent conveyancers that ever
lived, it should be stated that he also in early life published—we
believe in his twenty-first year (1791)—an elementary treatise on the
_Quantity of Estates_, which has, with modifications in successive
editions, continued even to the present time a standard text-book in
the profession. In its original form it may be regarded as the anatomy
of the body of real-property law—and a doubt may be entertained
whether subsequent editions were improvements on the first. This book
laid the foundation, in his case also, of an enormous practice and
great wealth; but never, as in the case of his distinguished
contemporary, led to judicial office.
Footnote 10:
It is well known that for a single edition, Sir Edward Sugden once
received the sum, unprecedented in the writers of law books, of four
thousand guineas!
Footnote 11:
The uncle might have prohibited his niece from thus alienating, or
“anticipating,” as it is called, any portion of what he had bequeathed
her, but had not thought fit to do so. A woman who has thus property
in equity, is the creature of equity, and may have as much or as
little capacity of dealing with it, as her donor may have chosen to
confer upon her. Possibly this was something like the argument of Mr
Sugden, which is not given by the reporter.
Footnote 12:
Lord Eldon once sent for Mr Sugden into his private room, during the
argument of an important case in which he was not concerned, to ask
his opinion concerning the main point of law involved in it—relating,
if we are correctly informed, to “springing uses.” Mr Sugden’s
impression differed from that of Lord Eldon, who ultimately yielded to
Mr Sugden’s.
Footnote 13:
This Act has itself just been repealed.
Footnote 14:
The principles involved in all these cases are elaborately discussed
by Lord St Leonards himself in his Treatise of the Law of Property, to
be afterwards noticed.
Footnote 15:
H. B. had a caricature representing “A Meeting in the Pleas”—between
Sir James Scarlett, Attorney-General, and Sir Edward Sugden,
Solicitor-General, with Sir N. Tindal on the Bench, and Sir Charles
Wetherall and Mr Brougham in the wings.
Footnote 16:
Sir Edward Sugden was twice offered office by the Whigs, but he
declined it.
Footnote 17:
Lloyd and Goold’s _Reports of the High Court of Chancery, tempore_
Sugden, pp. 380–1.
Footnote 18:
_Vide supra._
Footnote 19:
See them—_Stokes_ v. _Heron_, p. 236; _Shaw_ v. _Lawless_, p. 394;
_Creed_ v. _Creed_, p. 428.
Footnote 20:
This reminds us of the prodigious effort of Lord Lyndhurst, C., in the
case of _Small_ v. _Attwood_, which had been argued by Sir Edward
Sugden.
Footnote 21:
In the course of his judgment he pronounced the late Lord Kenyon, “one
of the most consummate Real Property lawyers that ever adorned the
Bench.”—P. 350.
Footnote 22:
See the Letter in the _Times_ of 7th January 1851.
Footnote 23:
We could fill a page with references to cases in courts of law and
equity in which such judicial deference is paid to the “Vendors and
Purchasers.” One or two of the latter instances may be seen in
Matthews _v._ Bowles, 6 Hare’s Rep. 111; Wykes _v._ Lee, 3 Drury, 396.
We should add that, with a dignified modesty, credit has never been
taken, in new editions, for the adoption of rules which had been laid
down by the author, or for the approbation bestowed on the work.
Footnote 24:
_Report_, p. 183.
Footnote 25:
Delivered after he had ceased to be Chancellor.
Footnote 26:
_Blackwood’s Magazine_, January 1846.
------------------------------------------------------------------------
TRANSCRIBER’S NOTES
Page Changed from Changed to
135 hordes which overthrow in hordes which overthrew in
succession succession
174 Ἄγε Σωγράφων ἄριστε Γράφε Ἄγε Ζωγράφων ἄριστε Γράφε
Σωγράφων ἄριστε Τεχνοκοίρανε Ζωγράφων ἄριστε Τεχνοκοίρανε
ῥόδαιε Ἀπεοῦσαν ὡς ἂν εἴπω Γράφε ῥόδειε Ἀπεοῦσαν ὡς ἂν εἴπω Γράφε
τὴν ἐμὴν ἑταιραν τὴν ἐμὴν ἑταίραν
175 Γράφε μοι Βάθυλλον οὕτω Τὸν Τὸν ἑταῖρον ὡς διδάσκω Λιπαρὰς
ἑταῖρον ὡς διδάσκω Λιπαρὰς κόμας κόμας ποίησον Τὰ μὲν ἔνδοθεν
ποίησον Τὰ μὲν ἔνδοθεν μελαίνας, μελαίνας, Τὰ δ’ ες ἄκρον ἡλιωσας
Τὰ δ’ ες ἄκρον ἡλιωσας Ἕλικας δ’ Ἕλικας δ’ ἐλαυθέρους μοι
ἐλαυθέρους μοι Πλοκάμων, ἀτακτα Πλοκάμων, ἀτακτα συνθεὶς, Ἄφες,
συνθεὶς, Ἄφες, ὡς θέλωσι, ὡς θέλωσι, κεῖσθαι Απαλὸν δὲ καὶ
κεῖσθαι Απαλὸν δὲ καὶ δροσῶδες δροσῶδες Στεφέτω μέτωπον, ὀφρὺς
Στεφέτω μέτωπον, ὀφρὺς Κυανωτέρη Κυανωτέρη δρακόντων. Μέλας ὄμμα
δρακόντων. Μέλας ὄμμα γοργὸν γοργὸν ἔστω, Κεκερασμένον
ἔστω, Κεκερασμένον γαλήνῃ* Τὸ γαλήνῃ* Τὸ μὲν ἐξ Ἄρηος ἕλκον Το
μὲν ἐξ Ἄρηος ἕλκον Το δε τῆς δε τῆς καλῆς Κυθήρης Ἵνα τις τὸ
καλῆς Κυθήρης Ἵνα τις τὸ μὲν μὲν φοβῆται Τὸ δ’ ἀπ’ ἐλπίδος
φοβῆται Τὸ δ’ ἀπ’ ἐλπίδος κρεμᾶται. Ῥοδίνην δ’, ὁποια
κρεμᾶται. Ῥοδίνην δ’, ὁποια μῆλον Χνοΐην ποίει παρειήυ*
μῆλον Χνοΐην ποίει παρειήυ* Ερυθημά δ’ ὡς ἄν Αἰδοῦς
Ερυθημά δ’ ὡς ἄν Αἰδοῦς (Λύνασαι) πάλιν ποίησον. Τὸ δὲ
(Λύνασαι) πάλιν ποίησον. Τὸ δὲ χεῖλος, οὐκ ἔτ’ οἶδα Τίνι μοι
χεῖλος, οὐκ ἔτ’ οἶδα Τίνι μοι τροπῳ ποιήσεις * * Ἁπαλὸν,
τροπῳ ποιήσεις * * Ἁπαλὸν, γέμοντε πειθοῦς —— Τὸ δὲ πᾶν, ὁ
γέμοντε πειθοῦς —— Τὸ δὲ πᾶν, ὁ κηρὸς αὐτὸς Ἐχέτω λαλῶν σιωπῇ.
κηρὸς αὐτὸς Ἐχέτω λαλῶν σιωπῇ. Μετὰ δὲ πρόσωπον ἔστω Τὸν
Μετὰ δὲ πρόσωπον ἔστω Τὸν Ἀδώνιδος παρελθὼν, Ἐλεφάντινος
Ἀδώνιδος παρελθὼν, Ἐλεφάντινος τράχηλος. Μεταμάζιον δε ποίει
τράχηλος. Μεταμάζιον δε ποίει Δίδυμάς τε χεῖρας Ἑρμοῦ;
Δίδυμάς τε χεῖρας Ἑρμοῦ; Πολυδεύκεος δε μηροὺς Λιονυσίην
Πολυδεύκεος δε μηροὺς Λιονυσίην δὲ νηδύν. Φθονερηὺ ἔχεις δὲ
δὲ νηδύν. Φθονερηὺ ἔχεις δὲ τέχνηυ, Ὅτι μὴ τὰ νῶτα δεῖξαι,
τέχνηυ, Ὅτι μὴ τὰ νῶτα δεῖξαι, Δύνασαι* τὰ δ’ ἦν ἀμείνω. Τί
Δύνασαι* τὰ δ’ ἦν ἀμείνω. Τί πόδας με δεῖ δί δάσκειν; Λάβε
πόδας με δεῖ δί δάσκειν; Λάβε μισθὸν, ὅσσον εἴπῃς. Τὸν
μισθὸν, ὅσσον εἴπῃς. Τὸν Ἐκηβόλον δὲ τοῦτον Καθελὼν,
Ἐκηβόλον δὲ τοῦτον Καθελὼν, ποίει Βάθυλλον. Ὅτε δ’ ἐς Σαμου
ποίει Βάθυλλον. Ὅτε δ’ ἐς Σαμου ποτ’ ἐλθης Γράφε Φοῖβον ἐκ
ποτ’ ἐλθης Γράφε Φοῖβον ἐκ Βαθύλλον.
Βαθύλλον.
● Fixed typos; non-standard spelling and dialect retained.
● Renumbered footnotes and moved them all to the end of the final
chapter.
● Enclosed italics font in _underscores_.