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1 Lord Eldon Lord Eldon - John Scott (Selden Society Talk – 23 July 2015) Introduction [H]ard by Temple Bar, in Lincoln’s Inn Hall, at the very heart of the fog, sits the Lord High Chancellor in his High Court of Chancery. Never can there come fog too thick, never can there come mud and mire too deep, to assort with the groping and floundering condition which this High Court of Chancery, most pestilent of hoary sinners, holds, this day, in the sight of heaven and earth. On such an afternoon, if ever, the Lord High Chancellor ought to be sitting here – as here he is – with a foggy glory round his head, softly fenced in with crimson cloth and curtains, addressed by a large advocate with great whiskers, a little voice, and an interminable brief, and outwardly directing his contemplation to the lantern in the roof, where he can see nothing but fog. On such an afternoon, some score members of the High Court of Chancery bar ought to be – as here they are – mistily engaged in one of the ten thousand stages of an endless cause, tripping one another up on slippery precedents, groping knee-deep in technicalities, running their goat-hair and horse-hair warded heads against walls of words, and making a pretence of equity with serious faces as players might… This is the Court of Chancery; which has its decaying houses and its blighted lands in every shire; which has its worn out lunatic in every madhouse, and its dead in every churchyard; which has its ruined suitor, with his slipshod heels and threadbare dress, borrowing and begging through the round of every man’s acquaintance; which gives to monied might, the means abundantly of wearying out the right; which so exhausts finances, patience, courage, hope; so overthrows the brain and breaks the heart; that there is not an honourable man among its practitioners who would not give – who does not often give – the warning, ‘Suffer any wrong that can be done you, rather than come here.1 1. Those words are from the opening pages of Bleak House. Charles Dickens wrote them in 1852. But he set the action of his tale in the late 1820s and early 1830s, immediately following Lord Eldon’s 25 years as Lord Chancellor.2 There is no doubt that during Lord Eldon’s time, Chancery was bedevilled by delays and expenses piled upon expenses while cases wended their way through its intricate and Byzantine procedures. History has laid a large share of the blame for the unenviable reputation of the Court of Chancery at the feet of Lord Eldon. 2. Among lawyers today though, Lord Eldon is held in reverent awe. The leading text on equity in Australia identifies Lord Eldon as the most famous of the Chancery judges who systematised and brought certainty to the principles of equity.3 Every solicitor, barrister or academic with an interest in equity is familiar with the erudite 1 Charles Dickens, Bleak House (London, Penguin Books, 1994 – First Published 1852-1853), 2-3. 2 See W Holdsworth, Charles Dickens as Legal Historian (New Haven, Yale University Press, 1928), 79. 3 D Heydon, M Leeming & P Turner, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th Edn, Butterworths, 2015), 9. 1 judgments of Lord Eldon. He had a skill for capturing the essence of an equitable principle and his pronouncements continue to be quoted and followed with regularity, in Australia and the United Kingdom. 3. I will spend some time this evening examining the criticisms levelled at Lord Eldon in his administration of the Court of Chancery. I will also review a brief sample of Lord Eldon’s decisions which continue to be influential. Before doing those things, however, it is helpful to broaden our view of Lord Eldon by sketching out some of the key details of his life and character. Early Life 4. Lord Eldon came into the world as plain old John Scott on 4 June 1751 in Newcastle-upon-Tyne. His father, William Scott, was a prosperous coal factor.4 His mother, Jane, was a native of Newcastle and regarded as a person of “superior understanding” from whom John Scott inherited his renowned intellect.5 He began his education at the Newcastle Free Grammar school.6 In 1766, three weeks before his fifteenth birthday, he matriculated at Oxford University and entered University College where he soon obtained a fellowship. In 1770, he was admitted to the degree of Bachelor of Arts.7 5. John Scott seemed destined for a career in the church, until a youthful romance intervened. He fell in love with Elizabeth Surtees, known to her friends and family as Bessie. Her father was a prominent Newcastle banker, Aubone Surtees. Aubone disapproved of the budding romance between John and Bessie; he believed his daughter should set her sights higher than the son of a mere coal factor.8 But family disapproval did not deter John Scott or Bessie Surtees. On a wintry November evening in 1772, John placed a ladder up to the first floor window of Bessie’s family home and Bessie willingly climbed down into his waiting arms.9 They travelled through the night to Blackshiels just north of the Scottish border and were married the next day in the village church.10 John was 21 years old and Bessie was just 18. 6. The elopement caused distress to both of their families. Aubone Surtees initially refused to make any settlement upon his daughter, declaring that it would be “rewarding disobedience”.11 However, within a few months, the families accepted 4 R Melikan, John Scott Lord Eldon 1751-1838 The Duty of Loyalty (Cambridge, Cambridge University Press, 1999) (hereafter Melikan), 1. 5 Campbell, Lives of the Lord Chancellors (5th Edn, London, J Murray, 1868) Vol IX, 112. John Scott’s older brother, William, also inherited that intellect. He was made an admiralty judge and elevated to the peerage as Lord Stowell. 6 Melikan, 1. 7 Melikan, 1. 8 H Twiss, The Public and Private Life of Lord Chancellor Eldon (London, J Murray, 1846) (hereafter Twiss), Vol 1, 48. 9 Twiss, Vol 1, 48. 10 Twiss, Vol 1, 48. 11 Twiss, Vol 1, 50. 2 the marriage. In January 1773, the marriage was confirmed in the parish church of St Nicholas, Newcastle. Bessie’s father and John’s brother were recorded as witnesses in the parish register.12 The two fathers established trusts for their children in the amount of £3,000 which gave them some degree of financial independence.13 However, as John’s correspondence from the time shows the settlement was not quite enough for the two to live comfortably.14 7. Immediately after the marriage, John Scott continued to hold a fellowship at University College. However, it was a condition of the fellowship that it could be held for only one year after marriage. Scott made it known that if an alternative position became available at University College during his year of grace, he would take it with a view to entering the church.15 However, knowing that no such position might arise, as a precaution he enrolled as a law student in Middle Temple.16 In the event, no alternative position was offered, and so John Scott set out upon his life in the law as a means of supporting himself and his new wife.17 Commencing at the Bar 8. Even though law was his second choice of calling, John Scott applied himself to his studies with some diligence. In August 1773, eight months after commencing as a law student at Middle Temple, he wrote to his cousin describing himself as one “whose every hour is dedicated to learned dullness, who plods with haggard brow o’er the black-lettered page from morning to evening, and who finds his temper grow crabbed as he finds some point more knotty.”18 9. After undertaking a period of pupillage with a conveyancing practitioner, Scott was called to the bar in February 1776.19 In the first few years, his practice was slow to develop.20 He appeared in several actions concerning contested returns in the parliamentary elections of 1777 and 1780 and in the Clitheroe by-election in March 1781.21 These appearances gave him a taste for politics which dominated his later life. 12 Twiss, Vol 1, 51. 13 Melikan, 2. 14 Early in his pupillage (with a conveyancing practitioner, Matthew Duane) John Scott wrote to his brother, Henry, stating that “our profession is so exceedingly expensive, that I almost sink under it:” Melikan, 3. See also the letters quoted at footnotes 17 and 20 below. 15 Twiss, Vol 1, 52. 16 Melikan, 2. 17 Shortly after his marriage, Scott wrote to a friend at University College stating: “I have married rashly, and have neither house nor home to offer my wife; but it is my determination to work hard to provide for the woman I love, as soon as I can find the means of doing so”: Twiss, Vol 1, 54-55. 18 John Scott to Henry Reay, 20 August 1773: Melikan, 2. 19 Melikan, 3. 20 In January 1779, William Scott (John Scott’s brother and later Lord Stowell) wrote to Henry Scott stating: “Business is very dull with poor Jack, very dull indeed; and of consequence he is not very lively. I heartily wish that business may brisken a little, or he will be heartily sick of his profession. I do all I can to keep up his spirits, but he is very gloomy:” Melikan, 3, fn 10. 21 Melikan, 3-4.
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