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John Fonblanques Eulogium on Brougham
THE EXAMINER.SUNDAY, FEBRUARY 27, 1831.
No. 1204.
Paper, Print, &c. .... 3d.
Taxes on Knowledge, 4d.
7d. PRICE
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THE POLITICAL EXAMINER.
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Party is the madness of the many for the gain of a few. — Pope.
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REFORM IN CHANCERY.
The whole fabric of Chancery abomination totters to its
fall; the venerated dust and rubbish of antiquity is to be
swept away; the cobwebs are to be brushed from their
prescriptive corners; the spiders cry out that the world is at an
end; and, as daylight is let into the intricate crevices of the
building, the obscene birds who have formed their hereditary
nests there from generation to generation, hoot at the light,
and, in their purblind struggles, fly in the faces of the unwelcome
intruders. The CHANCELLOR has redeemed his pledge;
he now stands forth,—not the popular disclaimer—not the
opposition orator,—but the practical, ministerial, reformer of
the law. He proposes no petty amendment—no abolition of
minor offenses or minor evils—no palliative—no sedative—no
placebo—no compromise between acknowledged evil and
conflicting interests. He lays his axe to the root of the evil—he
aims a mortal blow at . . . . . the pockets of his adversaries—
he refuses the supplies, and the ways and means of corruption
are at an end. Judicial officers, and their administrative
subordinates, are to be paid by salaries—not by fees; or if in
part by fees, then only in that stage of proceeding over which
they have no control to multiply, hasten, or retard the steps
of the suitor. The Masters' Clerks grieve for their gratuities
—the Registers for their copy-money; those pleasant unctions—
those cordials to pen-wearied diligence—those stimulants
to expedition—are gone forever. The Masters plunge
their hands into the depths of their femoralia, and, with
lengthened faces and lack-lustre eye, meditate the departed
glory of their warrants; while seventy Commissioners of
Bankrupts, dispersed to all quarters of the wind, wonder what
the world is to do without them. Yet all this is done with
so much judgment, with so much due consideration for
individual interest, that those who inwardly curse, and privately
mutter, cannot openly complain. If they remain in office,
they are liberally paid for the proper execution of their duty.
If their services are dispensed with, they are as liberally
compensated for the loss of their emoluments. A present
and permanent good is cheaply purchased at the expense of a
temporary and decreasing incumbrance; and this, too, is put
on its just footing: there is no twaddle of the indefensible
rights of vested interest—no prattle of freehold— no talk of
inheritance in official extractions. Thus the sinecures held by the
Reverend Mr. Thurlow* amount to between nine and ten
thousands a year; among these is the most iniquitous office
that it ever entered into the mind of man or courtier to
imagine—a tax of seven thousands a year out of bankrupts'
estates, to be collected at a further expense of about fifty percent.!
"I am aware," says the Lord Chancellor, "that the holder of the patent
place I have alluded to has vested rights in it: but if he should be very
exorbitant in his demands, let him not think himself very sure of the tenure
by which he holds office. If my tenure of office is secure, I will not fail
to grapple with it; and that I may go out there is no chance, for I am
sure that I am at present well fixed in it: but if I should not go out of
office, I will grapple with this patent place; I will let the patentee see
that I can exercise the power which the law confers on me, The fees for
making all commissions of bankruptcy, whence the patentee derives his
revenue, the law gives me the power, by a side-wind, to put an end to, by
preventing the seal being put to commissions. If I do that, what then
becomes of the patentee? I will not say that the patentee has not a vested
right, but it is a joke to say that he holds it on the same tenure as your
lordships hold your freehold estates, of which you cannot be deprived but
by the failure of the seasons, or the conquest of an enemy. The vested
rights of this patentee depend on the clause of an Act of Parliament; and
he who holds the Great Seal can put an end to them when he pleases. I
think, then, that the holder of this place, if he attend to morality, to honourable
feelings, or if he take counsel of common sense and prudence, will
take into his consideration what I have now stated to your lordships; that
he will consult his attorney, his counsel, his conveyancer, and take all those
legal steps necessary to make up his mind to accept the liberal offer I shall
make. From the abolition of this sinecure then we shall save 8,000 l.
a-year out of the 11,000 l., which, added to the 51,000 l. I have already
mentioned, will make the whole saving amount at least to 73,000l."
Thus, therefore, the expense of compensation is balanced by
an immediate saving to the public: but though the saving is
indirect, and the charge must be immediate, his Lordship
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* So perfectly useless is this sinecure, that its holder is not even called
upon to sign his name to the commissions which are issued on his teste.
The title of Lord Thurlow, the last deceased patentee, continues printed
at the foot of the parchments even to this day!
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does not propose to tax the people to raise it; there is a
fund, which if he does not apply it to the furtherance of legal
reform, some future minister will borrow for the exigencies of
warfare—the Suitors' Fund of the Court of Chancery, in
which some millions remain, and ever will remain, unclaimed,
and unclaimable, by the real owners. Out of this it is proposed
to pay the new burthens, and it cannot be better applied:
since, at the expense of those who are long since beyond the
reach of their moral vexations, the means will be afforded of
averting similar evils from their posterity. Generous,
however, as this mode of treating sinecurists is, it will not
conciliate all interests: some will stickle for the last fraction of
average income; many dread inquiry into the amount and
sources of their emoluments: exactions, extortions, encroachments,
and usurpations, are entitled to no place in the scale:
therefore, the "Morning Post," speaking for its order, fruges
consumere nati, puts forth its wailings; and the Clerk of the
Pleas in King's Bench deranges his crisped head in
anxious meditations on the progress of reforms which may
extend from Equity to Law.
Much opposition—some open, more in secret—must therefore
be expected. In the House of Lords, it is true not a
voice was heard in vindication of the once venerated system—
Lord Eldon was not there; and of all who had cringed to
his favour, or fattened sons or nephews on his patronage,
there was not one to uphold his favourite jurisdictions, or to
defend the manner in which, for five and twenty years and
upwards, he had administered his high office. His once
antagonist, his now successor, was more generous; explaining
why he had hurried into Reform, he endeavoured to excuse
the inaction of his predecessor:—
"I, who have little or no experience, whose knowledge of the practice
of the Court must necessarily be limited—I, a mere novice in the law of
that Court, nevertheless begin with attempting what others, to the very
close of their career, have not attempted—a change, an innovation, and to
sum up all in one expression, so hateful, so alien to long-established habits,
so sore, so agonising to the experienced practitioner—in one hateful word,
"the head and front of my offending"—a Chancery Reform. Reform,
odious and reprobated in all places, is especially odious and especially
reprobated there, where it appears as if it were a monster, composed of two
parts so utterly irreconcileable and incongruous as Chancery Reform. My
answer to this charge is, that short as my experience has been in that
Court, I almost already begin to feel those difficulties and those
incumbrances which have overpowered and mastered the good intentions of all my
illustrious predecessors. I am already, as it were, attached to the soil—I
am already in the course of seduction. I feel that I am getting involved in
the integuments and entanglements which I have been describing as forming
the excuse for my predecessors. I, who came into the Court pouring out
prayers for Reform, am almost already incapacitated for attempting it; and
if I remain there inactive a little longer, shall be wholly so.
'Vix prece finita, torpor gravis alligat artus:
Mollia cinguntur tenui praecordia libro
In frondem crines, in ramos brachia crescunt:
Pes modo tam velox pigris radicibus haeret:
Ora cacumen obit: remanet nitor unus in illa.'
"I feel that I am on the point, if I delay any longer, of becoming, in my
flight from the day, fixed and rooted in the soil; and that I shall flourish
only like the laurel in the fable, a monument of her escape from the
embraces of the god of light."
The wise physician, who is obliged to live in a pest-house,
does not delay his purification till he becomes infected with
the disorder; he applies the first and full vigour of his
strength to the work of cleanliness; if he omits it till the
langour of disease incapacitates from exertion, or the
familiarity of objects of disgust reconciles him to corruption,
he may himself fall a victim to his delay, but the system
stands little chance of amendment. Lord Brougham has the
advantage of which Lord Lyndhurst failed to avail himself:
he comes into a new court—things, familiar to its ordinary
practitioners, are strange to him—forms to which they are
accustomed from their days of pupilage, and which they took
unexamined from the dogmas of an equity draftsmen, to him
require explanation: it was not so with Lord Eldon, he was
trained in these abuses and absurdities, till they became part
and parcel of his intellect: he was born, reared, educated,
made as a public character in times and circumstances, in
which passive submission to all existing institutions was
religion, in which change was heresy, in which innovation was
rebellion against church and state. We do not wonder that
Lord Eldon was not a reformer—Can he now stem the tide?
No.—If he cannot, who can? No one!
Yet we will not be supine, we will not risk our victory—(our
victory!)—by inattention to the movements of a retreating
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the examiner / sunday, february 27, 1831 / no. 1204 |
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[[notes_public::"john fonblanques eulogium on brougham" [note in bentham's hand]]] |
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