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183

LORD THURLOW.

THE other helpmate upon whom Gibbon paints the pilot of the state as reposing, was as different a person from Lord Loughborough in all respects as can well be imagined. We refer of course to Mr. Thurlow, who filled the office of Attorney-General until the year 1778, when he took the Great Seal. The remains that have reached us of his exhibitions as a speaker, whether at the bar, in parliament, or on the bench, are more scanty still than those of his colleagues; for, while he sat on the bench, the reports in Chancery were on the meagre and jejune footing of the older books; and it is only over a year or two of his presiding in the Court that Mr. Vesey, junior's, full and authentic reports extend. There seems, however, from all accounts, to have been much less lost of Lord Thurlow than there would have been of subsequent judges, had the oldfashioned summaries only of equity proceedings been preserved; for his way was to decide, not to reason; and, in court as well as in parliament, no man ever performed the office, whether of judging or debating, with a smaller expenditure of argument.

This practice, if it saves the time of the public, gives but little satisfaction to the suitor. The judges who pursue it forget that, to satisfy the parties, or at least to give them such grounds as ought to satisfy reasonable men, is in importance only next to giving them a right judgment. Almost as important is it to satisfy the profession and the country, which awaits to gather the law, the rule of their conduct in advising or in acting, from the lips of the judge. Nor is it immaterial

to the interest even of the party who gains, that the grounds should be made known of his success, especially in courts from which there lies an appeal to a higher tribunal. The consequence of Sir John Leachdeciding generally with few or no reasons assigned was, that appeals were multiplied; the successful party had only obtained half a victory; and it became a remark, frequent in the mouths of successive chancellors, that causes were decided below, but heard before them. It is an unaccountable mistake into which some fall, when they fancy that the more weight is attached to such mere sentences, because prefaced by no reasons; as if the judge were to declare the law, infallible like an oracle, or omnipotent like a lawgiver, and keep to himself all knowledge of the route by which he had arrived at his conclusion. The very reverse is true. With an enlightened bar and an intelligent people, the mere authority of the bench will cease to have any weight at all, if it be unaccompanied with argument and explanation. But were it otherwise the reason would fail, and signally fail; for the only increase of weight derived from the practice would be that to which the judgment had no claim, namely, the outward semblance to the ignorant multitude of a determination more clear and positive than really existed. Add to all this, that no security whatever can be afforded for the mind of the judge having been directed to the different parts of each case, and his attention having been held awake to the whole of the discussions at the bar, still less in equityproceedings of his having read the affidavits and other documentary evidence, unless he states explicitly the view which he takes of the various matters, whether of law or of fact, that have been brought before him. With the exception of Sir John Leach, Lord Thurlow is the last judge who adopted the very bad practice of unreasoned decisions. But his habit of cavilling at the reasons of the common-law courts, when a case

was sent to them for their opinion, a habit largely followed by Lord Eldon, extended to those courts, in a remarkable and very hurtful manner, Lord Thurlow's own practice: for the temper of those learned individuals became ruffled; and, impatient of criticism upon their reasonings, instead of rather courting a discussion of them, they adopted the evil method of returning their answers or certificates without any reasons at all-a conduct which nothing but the respect due to the bench could hinder men from terming childish in the extreme. This custom having been much censured by succeeding chancellors, and the House of Lords itself having of late years departed altogether from the old rule of only assigning reasons where a judgment or decree is to be reversed or varied upon Appeal, it is to be hoped that the common-law judges will once more deign to let the profession know the grounds of their judgments upon the highly important cases sent from Chancery, as they do without the least fear of cavil or criticism upon any trifling matter that comes before them, and do (be it most reverently observed in passing) with very little desire to avoid either prolixity or repetition.*

If Lord Thurlow, however, has left no monuments of his judicial eloquence, and if, indeed, his place among lawyers was not the highest, he is admitted to have well understood the ordinary practice and leading principles of those courts in which he had passed his life; and his judgments for the most part gave satisfaction to the profession. He had no mean powers of despatching the business of the court, and of the House of Lords when presiding upon appeals; nor could any man in this article resemble him less than the most eminent of his successors, who was understood to have

* This bad practice was afterwards abandoned; but in 1852, a provision of more than doubtful expediency in the Chancery Practice Act, put an end to the practice of sending cases to law.

made him the model in some things of his conversation, garnishing it, after his manner, with expletives, rather sonorous than expressive, but more expressive than becoming. Far from showing, like Lord Eldon, a patience which no prolixity could exhaust, and a temper which was neither to be vexed by desperate argumentation nor by endless repetition-farther still from courting protracted and renewed discussion of each matter, already worn threadbare-Lord Thurlow showed to the suitor a determined, and to the bar a surly, aspect, which made it perilous to try experiments on the limits of his patience, by making it somewhat doubtful if he had any patience at all. Aware that the judge he was addressing knew enough of their common profession not to be imposed upon, and bore so little deference to any other as to do exactly what suited himself-nay, apprehensive that the measure of his courtesy was too scanty to obstruct the overflow in very audible sounds of the sarcastic and peremptory matter which eyes of the most fixed gloom, beneath eye-brows formed by nature to convey the abstract idea of a perfect frown, showed to be gathering or already collected -the advocate was compelled to be select in choosing his topics and temperate in handling them; and oftentimes felt reduced to a painful dilemma better fitted for the despatch than the right decision of causes, the alternative being presented of leaving material points unstated, or calling down against his client the unfavourable determination of the Court. It would be incorrect to state that Lord Thurlow in this respect equalled or even resembled Sir John Leach, with whom every consideration made way for the vanity of clearing his cause-paper in a time which rendered it physically impossible for the causes to be heard. But he certainly more nearly approached that extreme than he did the opposite, of endless delay and habitual vacillation of expression rather than of purpose, upon which Lord Eldon made shipwreck of his judicial reputation, though

possessing all the greater qualities of a lawyer and a judge. In one important particular he and Sir John Leach closely resembled each other, and as widely differed from the other eminent person who has just been named. While on the bench the mind of both was given wholly to the matter before them, and never wandered from it at all. An ever-wakeful and everfixed attention at once enabled them to apprehend the merits of each case and catch each point at the first statement; precluded the necessity of much after-consideration and reading, and, indeed, rehearing; and kept the advocate's mind also directed to his points, confining his exertions within reasonable limits, while it well rewarded him for his closeness and his conciseness. The judge's reward, too, was proportionably great. He felt none of that load which pressed upon Lord Eldon when he reflected how much remained for him to do after all the fatigue of his attendance in Court had been undergone; that anxiety which harassed him lest points should escape his reading that might have been urged in the oral arguments he had heard without listening to them; the irritation which vexed him until he had from long use ceased to care much for it, when he looked around him upon the inextricable confusion of his judicial affairs, and, like the embarrassed trader, became afraid to look any more, or examine any closer the details of his situation. If contrast were to be formed between the ease and the discomfort of a seat upon the bench, as far as the personal feelings of the occupants are concerned, it would hardly be possible to go beyond that which was afforded by Thurlow to Eldon.

Of his powers as a debater there are now no means to form an estimate, except what tradition, daily becoming more scanty and precarious, may supply. He possessed great depth of voice, rolled out his sentences with unbroken fluency, and displayed a confidence both of tone and of assertion which, accompanied by

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