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. 3

10. In 1780, John Scott appeared in his first Chancery case of note, Ackroyd v Smithson.22 In that case, a testator had directed that his real and personal property should be sold and divided amongst a list of legatees. Two of the legatees died before the testator and a dispute arose as to who was entitled to their part of the legacy. At first instance, the Master of the Rolls, Sir Thomas Sewell, held that the share of the deceased legatees should be divided proportionally between the surviving legatees.23

11. On appeal to the Lord Chancellor, Lord Thurlow, John Scott appeared, without a leader, on behalf of the heir at law to the testator’s real property. His opponents were the Attorney-General (Wedderburn) and two juniors, who appeared on behalf of the testator’s next of kin. Scott persuaded Lord Thurlow that the heir at law was entitled to that part of the legacies in dispute which represented the testator’s real property, while the next of kin were entitled only to the lesser part which represented his personal property.24

12. Scott’s appearance in that case earned him the respect of Lord Thurlow and the two thereafter developed a close friendship.25 In a subsequent case before Lord Thurlow, Scott was led by Pepper Arden, who was later elevated to the position of Chief Justice of the Court of Common Pleas (as Baron Alvanley). Arden addressed the Lord Chancellor first, it is said “with great fluency, but very loosely and without due preparation.”26 Scott then rose to complete the case for their client. Lord Thurlow, in his infamously gruff manner, remarked: “Mr. Scott, I am glad to find that you are engaged in this cause, for I now stand some chance to know something of the matter.”27 This is not to say that Lord Thurlow always favoured Scott or treated him gently. On another occasion, at the close of Scott’s address, Lord Thurlow declared: “I was with you Mr Scott – till I heard your argument.”28

13. Advice work made up a relatively small proportion of Scott’s private practice at the bar.29 The reason for this, he later explained, was that he considered himself duty bound to look fully into all the “books and authorities” and also to approach the statements of the case provided to him by solicitors with a high degree of scepticism.30 The delays which this caused and the qualifications he insisted on

22 (1780) 1 Bro CC 503; 28 ER 1262. The report is copied from John Scott’s own notes of the case; much of the report is a recitation of Scott’s argument: see 1 Bro CC 503 at 515; 28 ER 1262 at 1269. 23 1 Bro CC 503 at 505; 28 ER 1262 at 1263. 24 1 Bro CC 503 at 514; 28 ER 1262 at 1268. 25 Twiss, Vol 1, 79. The report of the case, compiled many years later from Scott’s own notes, states: “This most able argument confirmed the increasing reputation of Mr. Scott, which quickly led him, under the well-merited estimation of Lord Thurlow and his contemporaries, through successive honours, to the most elevated station in his country.” 1 Bro CC 503 at 515; 28 ER 1262 at 1269. 26 Twiss, Vol 1, 79. 27 Twiss, Vol 1, 79. 28 Twiss, Vol 1, 79. 29 Twiss, Vol 1, 80. 30 Twiss, Vol 1, 81. 4

including in his opinions caused solicitors to avoid approaching him for opinions.31 John Scott’s thoroughness combined with his tendency to delay would later characterise his time as Lord Chancellor.

14. By the early 1780s, Scott was a leading member of the Chancery bar. In June 1783, he took silk, then aged 32.32 His elevation to silk was not as King’s Counsel. Instead, he was granted a “patent of precedence”.33 This was equivalent to the status of King’s Counsel, but with two main advantages: he did not require a licence to appear against the Crown and there was no impediment to his holding a seat in Parliament.34

The House of Commons

15. Scott quickly took advantage of the freedom to follow a political career. In June 1783, just weeks after taking silk, he was elected to a seat in the House of Commons, as the member for Weobly in Herefordshire. Weobly was a “rotten borough” controlled by Lord Weymouth.35 It was offered to Scott by Lord Thurlow on the instructions of Lord Weymouth.

16. Scott had some reservations about accepting the seat. He told Lord Thurlow that he could not accept the seat unless it was understood that his conduct in Parliament would be independent of Lord Weymouth’s political opinions. Lord Thurlow assured him he had insisted upon this condition with Lord Weymouth before offering the seat to Scott.36 Scott’s election to the seat of Weobly was, of course, unopposed. However, Scott broke with tradition by making an appearance in the borough on the day of the election. Scott later described the occasion in his Anecdote Book, which he wrote for his grandson, as follows:37

When I presented myself on the hustings, a very old man addressed me, stating that I was, as he understood, a lawyer, and ought to be able to given them a speech, which was what they had not heard from the hustings for thirty years… I accordingly got upon a heap of stones, and made them as good a speech upon politics in general as I could, and it had either the merit or demerit of being a long one. My audience liked it on account, among other things, of its length.

17. Scott soon had further opportunities to display his speech-making skills. Between 1783 and 1788, he took part in parliamentary debates addressing the great issues of

31 Twiss, Vol 1, 81. 32 His patent of precedence is dated 4 June 1783, his 32nd birthday: Twiss, Vol 1, 85. 33 Melikan, 5. 34 Melikan, 5, fn 5. See also WS Holdsworth, A History of English Law (London, Methuen, 1936-1972) (hereafter Holdsworth), Vol VI, 476. 35 Melikan, 21, fn 5; Twiss, Vol 1, 85. The seat was abolished under the Reform Act 1832. 36 Twiss, Vol 1, 85. Melikan quotes correspondence of Lord Thurlow to Lord Kenyon suggesting that Lord Thurlow was reluctant to explain to Scott that he was permitted to be independent from Lord Weymouth “because it seemed indelicate even to suppose that there was anything to be explained”: Melikan, 22. 37 A Lincoln & R McEwen (eds) Lord Eldon’s Anecdote Book (London, Stevens & Sons Ltd, 1960 (hereafter Anecdote Book), 24. See also Melikan, 22; Twiss, Vol 1, 86. 5

the day.38 He gained a reputation for careful legal analysis in his speeches to the House. But, this was not always regarded as a good thing. After one speech by Scott concerning a bill on the East India Company, Sir Philip Francis described Scott as “the great luminary of the law” but then lambasted Scott for approaching a political question as though it were a matter of legal opinion.39

Solicitor-General and Attorney-General

18. Scott’s skill and reputation as a lawyer caught the attention of the Prime Minister, William Pitt. In June 1788, Scott was appointed Solicitor-General on the recommendation of Pitt.40 In February 1793, he was promoted to the position of Attorney-General.41

19. At the time, it was the practice for the Solicitor-General and Attorney-General to act together as the chief legal advisors to the government, and to appear together for the Crown in important cases.42 Both officers remained independent from the government, retained their own chambers, and were permitted to act for private clients.43

20. From 1788 to 1799, while Scott was Solicitor-General and later Attorney-General, he authored 314 opinions at the request of the Home Office, the Foreign Office, the Board of Trade, the Customs Office, the Treasury and the Privy Council.44 These opinions traversed a wide range of topics, including crime, colonies, trade, international affairs, local government, finance, Ireland and the military.45

21. In 1789, Scott was closely involved in drafting the bill to appoint the Prince of Wales as regent, on account of the temporary (but recurring) insanity of King George III.46 In 1789, the bill was passed by the House of Commons but the king recovered from his malady before the bill moved to the House of Lords. John Scott, however, had laid the legislative foundation for the regency and a regency bill modelled on Scott’s draft was passed after the king’s madness returned in 1810.

22. Scott’s most notable trials as Attorney-General were the prosecutions for treason of Thomas Hardy and the Reverend John Horne Tooke. Both men were prominent members of societies dedicated to constitutional reform, innocuously named the London Corresponding Society and the Society for Constitutional Information.47

38 See Melikan, Ch 2. 39 Melikan, 35. 40 Twiss, Vol 1, 107. 41 Twiss, Vol 1, 125. 42 Melikan, 35. 43 Melikan, 40. 44 Melikan, 43. 45 Melikan, 43. 46 Melikan, 65-68. 47 Melikan, 101. 6

23. In January 1794, the London Corresponding Society passed a resolution, printed by Thomas Hardy, which asserted that “upon the first introduction of any bill or motion inimical to the liberties of the people” such as landing foreign troops, suspending Habeas Corpus or preventing political assemblies, the Society should issue summonses for “a general convention of the people”.48 In March 1794, the Society for Constitutional Information passed a similar resolution calling for the summoning of a “Convention”.49

24. For members of William Pitt’s government, the idea of a “Convention” was uncomfortably close to the example of the National Convention of France, which had been established in 1792 and in 1793 had approved the execution of Louis XVI. Moreover, members of both societies had employed violent language in their political writings, for example, publishing a mock play-bill for a farce ominously entitled “La Guillotine, or George’s Head in a Basket”.50

25. In May 1794, Thomas Hardy and Reverend Horne Tooke were arrested along with other members of the two societies. They were indicted for treason and committed to trial by a grand jury.51 For Scott to obtain a conviction for treason he needed to establish, in the words of the statute, that the accused “doth compass or imagine the death of our lord the King”.52 The intention to kill the king, however, could be presumed upon proof of an intention to depose the king.53 Hardy and Tooke both undoubtedly believed in constitutional reform and had republican sympathies. The question of how far their reforming zeal extended was at the heart of the treason trials.

26. The first treason trial was that of Hardy in late October and early November 1794.54 Scott as Attorney-General led the team for the prosecution. Hardy’s defence team was led by Thomas Erskine.55 Great crowds were attracted to the Old Bailey during the trial.56 The general mood was opposed to the prosecution. Death by hanging seemed a harsh punishment for people who may have been guilty of nothing more than imagining a fairer system of government. Scott later wrote that every evening

48 Twiss, Vol 1, 143. 49 Twiss, Vol 1, 143-144. 50 Twiss, Vol 1, 145. 51 Melikan, 106. 52 25 Edw III c.2. 53 Melikan, 103-105. In his direction to the jury at the conclusion of the trial of Hardy, Lord Chief Justice Eyre stated: “That it was not necessary in point of law to prove a compassing of the king’s death, as a conception existing in the prisoner’s mind prior to the conception of deposing the king. The conspiracy to depose the king is evidence of compassing and imagining the death of the king conclusive in its nature; so conclusive that it is become a presumption of law.”: Twiss, Vol 1, 149. Erskine for the defence asserted that intent to depose the king could only ever be evidence of the intention to kill the king, and was not conclusive: Twiss, Vol 1, 147. 54 Melikan, 107. 55 Twiss, Vol 1, 137. 56 Twiss, Vol 1, 149. 7

as he left the Old Bailey he was met by “hissing and hooting” lasting from Ludgate Hill to the Fleet Market.57

27. Scott commenced the trial of Hardy with a nine-hour opening address to the jury and the trial itself lasted nine days.58 The case against Hardy was factually complicated. It depended upon the willingness of the jury to infer the requisite intention from a large body of circumstantial evidence, which was plainly capable of bearing different interpretations.59 The jury acquitted Hardy.

28. The treason trial of Reverend Horne Tooke commenced two weeks after the acquittal of Hardy and lasted for six days.60 Scott again appeared for the Crown and Erskine for the defence.61 The evidence was substantially the same as the evidence led against Hardy. But this trial was marked by Tooke’s frequent interjections. To give just one example, during his closing for the prosecution, Scott remarked that the king would be willing to lose his life rather than govern contrary to his coronation oath.62 Tooke interrupted, shouting: “What! Is the attorney-general talking treason? Did you say the king ought to lose his life...”63

29. At the conclusion of the trial, in his summing up to the jury, Chief Justice Eyre expressed doubts as to whether the evidence was sufficient to prove treason.64 The jury retired for just eight minutes before returning with a verdict of acquittal.65 Tooke could not resist another jibe at Scott. He announced that if he should ever be charged again with treason, he would plead guilty since he would prefer to be hanged than listen to more long speeches from John Scott.66 Scott himself later wrote that it had been a mistake to proceed with charges of treason against Hardy and Tooke, and that lesser charges of sedition would have been more likely to result in a conviction.67

Lord Chancellor

30. In July 1799, Scott resigned as Attorney-General in order to become Chief Justice of the Court of Common Pleas. At the same time, he was elevated to the peerage as Lord Eldon.68 In April 1801, Lord Eldon was made Lord Chancellor and held the position until resigning upon the death of William Pitt in 1806. In 1807, he was

57 Anecdote Book, 54. See also Twiss, Vol 1, 149. 58 WE Surtees, A Sketch of the Lives of Lords Stowell and Lord Eldon (London, Chapman Hall, 1846) (hereafter Surtees), 87. 59 See the evidence collected in Twiss, Vol 1, 137-146. 60 Twiss, Vol 1, 152. 61 Twiss, Vol 1, 152. 62 Twiss, Vol 1, 152. 63 Twiss, Vol 1, 155. 64 Melikan, 111. 65 Twiss, Vol 1, 152. 66 Surtees, 87. 67 Anecdote Book, 55-56. See also Melikan 103, fn 22. 68 Melikan, 7. 8

again appointed Lord Chancellor and then remained in the position until resigning twenty years later in 1827.69

31. Lord Eldon is principally remembered as an eminent Chancery judge who formulated or formalised influential doctrines of equity. However, in his role as Lord Chancellor he was closely involved in the political controversies of the day, both as the speaker of the House of Lords and as a member of Cabinet. Rose Melikan has written an excellent 356-page biography of Lord Eldon. In the preface to the book, she states that she consciously avoided any detailed discussion of his work as a Chancery judge and the majority of the book addresses his significance as a politician.70

32. In his role as Lord Chancellor, Eldon found himself at the centre of the regency crisis which was precipitated by the return of King George III’s insanity, particularly in 1801, 1804 and 1810. As Lord Chancellor, Lord Eldon was also Keeper of the Great Seal. He was therefore ultimately responsible for the decision to affix the Great Seal to Acts of Parliament as evidence of Royal Assent. Hence, without Lord Eldon’s confirmation that the King was sufficiently sound of mind, the business of Parliament would grind to a halt. Lord Eldon’s political opponents accused him of concealing the extent of the king’s madness in order to forestall the appointment of Prince George as Regent. It was generally believed Prince George would dismiss any minister’s appointed by his father the king.71

33. In 1811, a bill was passed, modelled on the one Lord Eldon had drafted as Solicitor- General, for the appointment of Prince George as Regent.72 To the frustration of the opposition, Prince George maintained the existing government, which commanded a majority in Parliament, and permitted Lord Eldon to continue in the office of Lord Chancellor.

34. King George III died in January 1820 and his son succeeded him as King George IV. In August 1820, Lord Eldon once again found himself at the centre of a royal scandal when he presided in the House of Lords over an extraordinary proceeding in which King George IV’s wife, Queen Caroline, was charged with adultery.

35. Prince George, as he then was, and Princess Caroline of Brunswick had been married in 1795. The marriage was tumultuous and unhappy from the beginning. Prince George resented having to put aside Mrs Fitzherbert, whom he had married in secret in 1785. The marriage to Mrs Fitzherbert had been unlawful because the King

69 Melikan, 7. 70 Melikan, xiii-xiv. 71 See Melikan, Ch 13. 72 Regency Act of 1811. The Act was passed following the method suggested by Lord Eldon when he was Solicitor-General during the regency crisis of 1788. Without the King’s consent, Lord Eldon affixed the Great Seal to letters patent naming Lords Commissioners, who in turn signified the grant of Royal Assent to the Regency Act. 9

had not given his permission and Mrs Fitzherbert was a Catholic.73 In 1795, Prince George agreed to marry Princess Caroline in the belief that the marriage would cause Parliament to settle his substantial debts and increase his income from the Civil List.74 But Prince George is reputed to have been drunk during the wedding ceremony and to have passed out on the floor on the wedding night.75 Within a year, he was pressing for a formal separation.76

36. Princess Caroline was excluded from the royal court. In 1814, she left England and travelled throughout Europe. During this time, she was continuously spied upon by agents of the Foreign Office and rumours abounded that she was engaged in scandalous affairs with Italian men.77 In 1820, when George succeeded to the throne he persuaded the Archbishop of Canterbury to exclude Caroline from the prayer for the royal family in the liturgy of the Church of England and pressed the government to arrange a divorce.78 Caroline decided to return to England in order to be crowned as Queen.

37. This precipitated George’s move to have Caroline charged with adultery. He personally sent a brief of evidence to the House of Lords containing documents showing that Caroline had engaged in adultery with an Italian lover. After a “committee of scrutiny” examined the evidence, a Bill of Pains and Penalties was introduced to the Lords to “deprive Her Majesty, Caroline Amelia Elizabeth, of the Title, Prerogatives, Rights, Privileges and Pretensions of Queen Consort of this Realm, and to dissolve the Marriage between his Majesty and the said Queen”.79

38. The proceeding in the House of Lords for consideration of the bill against Queen Caroline ran for three whole months and received evidence from 50 witnesses. Most of the witnesses were Italians and their evidence was treated with scepticism on account of their being foreigners. Lord Byron advised: “You must not trust Italian witnesses: nobody believes them in their own courts; why should you.”80

39. For the proceeding, the House of Lords was arranged like a court room, with Lord Eldon as the presiding judge.81 While the object of the proceeding was to secure the passage of the bill against Queen Caroline, Lord Eldon insisted that the proceeding should be conducted with all the protections of a criminal trial. In respect of Lord Eldon’s role, Holdsworth states:82

73 D Ryan “The Queen’s Case” (2009) 83 ALJ 669 at 670 (hereafter Ryan). 74 Ryan, 671. 75 Ryan, 671. 76 Ryan, 671. 77 Ryan, 672. 78 Ryan, 672. 79 Ryan, 673. 80 Ryan, 676. 81 Ryan, 676. 82 Holdsworth, Vol XIII, 608. 10

He had determined that the proceedings on the bill should be a properly conducted trial, and not, as so many impeachments and proceedings on similar bills had been, a trial only in name; and that, with that end in view, he had resolved to admit no evidence which would have been rejected in Westminster Hall. On the many points in the law of evidence which arose during the trial he summoned the judges to advise the House of Lords, and always accepted their opinions. He framed the questions submitted to them with great skill and fairness “without the slightest regard to the manner in which their answer might operate”.

40. It was from one of these references that the so-called “rule in The Queen’s case” emerged: namely that a witness could not be asked about the contents of a document unless the document was first shown to the witness.83 The tendency of that rule to eliminate the element of surprise in cross-examination led to the statutory abolition of the rule in civil trials in 185484 and in criminal trials in 1865.85

41. Public sentiment surrounding the trial, particularly in the lower and middle classes was overwhelmingly in favour of Queen Caroline.86 King George’s own vices and infidelities were well known, as was his dismissive and cruel treatment of his wife. The House of Lords nonetheless passed the bill against Queen Caroline on both its first and second readings. However, on the second occasion, the margin in favour had fallen, with just nine votes separating those in favour from those against. This led the Prime Minister, Lord Liverpool, to form the view that the risk of defeat on the third reading was too great, and he accordingly moved that further consideration of the bill be adjourned.87 The bill was subsequently abandoned. Queen Caroline had prevailed over her husband, the King.

42. While the incident did little to improve the reputation of King George IV – he has, not unfairly, been described as a “false and selfish debauchee who thought only of his own enjoyments”88 – it did increase the reputation of Lord Eldon for fairness and integrity. Lord Eldon reputedly believed in the guilt of Queen Caroline, but he is said in any case to have presided over the whole proceeding with “dignity, impartiality and courtesy”.89

43. It was a settled characteristic of Lord Eldon’s political life that he supported every conservative cause and opposed anything that had the appearance of “reform”. Melikan concludes that Lord Eldon can be clearly identified with only two reforms in the whole of his political career.90 In 1819, he sponsored a bill to abolish trial by combat,91 an archaic and moribund practice which had to great surprise been

83 Re Queen’s Case (1820) 2 Brod & Bing 284 at 288–290; 129 ER 976 at 977–978. 84 Common Law Procedure Act 1854 (UK), s 25. 85 Criminal Procedure Act 1865 (UK), s 6. In Queensland, the rule was initially abrogated by s 18 of the Evidence and Discovery Act 1867 (Qld). Section 19(1) of the Evidence Act 1977 (Qld) preserves the effect of that provision. 86 Ryan, 676. 87 Ryan, 678. 88 Holdsworth, Vol XIII, 218. 89 Holdsworth, Vol XIII, 608. 90 Melikan, 251. 91 Melikan, 251. 11

invoked the previous year by a litigant in the Court of King’s Bench.92 In 1825, Lord Eldon spoke in support of a bill to make lethal anti-poaching spring guns illegal, stating he “never could defend the practice of setting engines to endanger the life of a fellow-creature for the sake of a partridge or pheasant.”93

44. Those matters apart, Lord Eldon opposed every reform to the law. In 1804, he spoke in the House against a bill for the abolition of the slave trade stating that while wealthy statesmen might wish to “indulge their benevolence and humanity” on behalf of slaves, they ought not to do so “at the expen[s]e and total ruin to other classes, equally entitled to consideration and to justice.”94 He declared that “There was no man more inclined to the abolition of the slave trade” but he could not support a ban ruinous to British economic interests when other countries would simply continue the practice.95 Despite Lord Eldon’s efforts, the British slave trade was abolished by legislation in 1807 and slavery was ended throughout the British Empire by legislation passed in 1833.96 Nonetheless, as late as 1826, Lord Eldon informed the House of Lords that while slaves were the victims of the original decision to sanction and promote slavery, slave owners would be victims of the later decision to abolish it.97

45. Lord Eldon was also a staunch opponent of bills for Catholic emancipation.98 For most of Lord Eldon’s life, English law imposed a great many restrictions on the ability of Roman Catholics to participate in public life. As is still the case, the Act of Settlement of 1701 prevented any Roman Catholic from holding the throne, or from marrying the monarch. Roman Catholics were prevented from holding commissions in the army, from sitting in the Privy Council or in Parliament and from serving as judges.99 These restrictions on Roman Catholics were enforced by a statutory requirement that prospective office holders take an oath renouncing the temporal and spiritual authority of the Pope and, just as importantly, declaring the doctrine of transubstantiation to be a false and dangerous superstition.100

92 Ashford v Thornton (1818) 1 B & Ald 405. JH Baker, An Introduction to English Legal History (4th Edn, London, Butterworths, 2002) (hereafter Baker), 74, fn 12 states: “The last previous wager of battle in a writ of right was in 1638, but the fight was stopped at the last minute: Claxton v. Lilburn (1638) Cro. Car. 522…In 1985 a defendant in the High Court of Justiciary of Scotland tried unsuccessfully to wage battle against the lord advocate claiming that the 1819 statute applied only to England.” 93 Melikan, 251. 94 Melikan, 254. 95 Melikan, 254. 96 Slavery Abolition Act 1833. 97 Melikan, 254. 98 The only exception is that he did not oppose legislation in 1817 to permit Roman Catholics to hold commissions in the English army. 99 Melikan, 331. 100 See the Tests Acts, more fully described as An Act for Preventing Dangers which May Happen from Popish Recusants 1672 and An Act for the More Effectuall Preserving the Kings Person and Government by Disabling Papists from sitting in Either House of Parliament 1678. 12

46. For his part, Lord Eldon maintained that Protestantism was essential to the English system of government and Roman Catholics ought not to be permitted to participate in it. In 1803, he explained his position during a debate in the House of Lords as follows:101

Toleration and power were very different. The British constitution gave toleration to every class of its subjects; but the very nature of the thing rendered it necessary that power should be vested where it was most calculated to produce and to preserve the good of the whole. If persons who by refusing to qualify themselves for offices of power and trust, had still complete toleration allowed them, they had the benefits of the British Constitution.

47. Lord Eldon went further, stating that the doctrines of Anglicanism were “the purest in the world” and consequently “entitled to be favoured by the state in a higher degree than any other religion”.102

48. In 1829, after Lord Eldon had ceased to hold the office of Lord Chancellor, a Catholic Relief Bill was presented to Parliament. Lord Eldon became the central figure in organising opposition. He presented to the House of Lords over 800 petitions containing thousands of signatures denouncing the Bill.103 His own opposition was expressed in vehement terms. He declared to the House:104

[I]f ever a Roman Catholic was permitted to form part of the legislature of this country, or to hold any of the great executive offices of the government, from that moment the sun of Great Britain would set.

49. He concluded his final speech to the House of Lords on the Catholic Relief Bill by stating:105

I would rather hear that I was not to exist to-morrow morning, than awake to the reflection, that I had consented to an act, which had stamped me as a violator of my solemn oath, a traitor to my church, and a traitor to the constitution.

50. Despite Lord Eldon’s exhortations against the Bill, it passed. Roman Catholics were no longer to be subject to official discrimination.

Delays in Equity

51. Having learnt something of the breadth which Lord Eldon’s role as Lord Chancellor entailed, it is possible to address the charges concerning his delays in delivering justice in the Court of Chancery.

52. Delay and enormous expense had been features of the Court of Chancery since long before the appointment of Lord Eldon. A chief cause of the difficulties was that

101 Melikan, 330. 102 Melikan, 331. 103 Melikan, 339. 104 Melikan, 339. 105 Melikan, 345. 13

responsibility for all the judicial work of Chancery rested ultimately on the Lord Chancellor. There were twelve masters in Chancery who could be appointed to investigate and determine particular factual issues, but who could not make binding orders.106 The chief of these officials, called the Master of the Rolls, gradually acquired greater judicial duties and from the seventeenth century was permitted to hear and decide causes, but only in the Lord Chancellor’s absence.107 In any event, decisions of the Master of the Rolls could be appealed to the Lord Chancellor, so that he was often the final arbiter.

53. It was not until 1813, during Lord Eldon’s time, that a Vice-Chancellor was appointed to assist in the judicial work of the Court of Chancery. However, decisions of the Vice-Chancellor could be appealed to the Lord Chancellor. Litigants frequently availed themselves of the opportunity to re-argue their cases before Lord Eldon, so that this structural reform did little to shift the backlog of cases.108

54. The enormous expense of conducting any proceeding in Chancery has become the stuff of legend. Apart from the fees of the lawyers, the fees charged by the clerks in Chancery to perform any procedural task were exorbitant. Baker states:109

Since every step in the litigation attracted more fees, there was no incentive to expedition, let alone procedural reform. One typical innovation was that which enabled masters’ reports to be lengthened by reciting the whole of the previous proceedings verbatim in a ‘whereas’ clause before starting on the substance of the report.

55. Many of the procedural tasks performed by the clerks were, on any objective view, unnecessary. Documents would be copied multiple times in order to be provided to the clerks of Chancery, each of whom would charge a separate fee, to ensure that a case maintained its priority in the lists.110

56. In 1824, Lord Eldon was appointed to head an inquiry into the Court of Chancery. The inquiry uncovered numerous problems. Even simple matters could take five years to determine. The funds retained in court in connection with undecided cases totalled £39 million. One case, Morgan v Lord Clarendon, had been in Chancery for sixteen years but was still in its interlocutory stages and no counsel had been briefed. Nonetheless, costs had already reached £3,719. Despite all of these problems, Lord Eldon exhibited his customary opposition to reform. His final report recommended few changes to Chancery practice and charged that many of the problems were the fault of the parties and their lawyers.111

106 Melikan, 296. 107 Melikan, 297. 108 Melikan, 312. 109 Baker, 112. 110 CJ Rossiter & M Stone, “The Chancellor’s New Shoe” (1988) 11 UNSWLJ 11 at 13. 111 Baker, 113. 14

57. The structural defects of Chancery were exacerbated by Lord Eldon’s own tendency to delay and vacillate. After his retirement, Lord Eldon himself admitted that he had “something of the cunctative” in his character.112 His delays in producing judgments stemmed from a laudable desire to investigate every point as fully as possible and to ensure that he did justice to the parties, in circumstances where there was no right of appeal from his decisions.113 Sir Samuel Romilly said of Lord Eldon that “his fault was over anxiety to do justice in each particular case, without considering how many other causes were waiting to be decided.”114 Jeremy Bentham unkindly dubbed the Lord Chancellor “Lord Endless”.115

Leading Cases

58. Lord Eldon’s systematic and meticulous approach to equity no doubt contributed to the delays which bedevilled the Court of Chancery during his time as Lord Chancellor. However, over the longer term, his approach has contributed greatly to the development and certainty of equitable principles.

59. This was Lord Eldon’s professed intention. In Sheldon v Goodrich, a decision in 1803, he stated:116 “It is better that the law should be certain than that every judge should speculate upon improvements in it.”

60. Most memorably, in 1818 in Gee v Pritchard, Lord Eldon said:117

The doctrines of this Court ought to be as well settled and made as uniform almost as those of the common law, laying down fixed principles, but taking care that they are to be applied according to the circumstances of each case. I cannot agree that the doctrines of this Court are to be changed with every succeeding judge. Nothing would inflict on me greater pain, in quitting this place, than the recollection that I had done anything to justify the reproach that the equity of this Court varies like the Chancellor’s foot.118

61. As the last two hundred years have shown, Lord Eldon achieved considerable success in his goal of bringing certainty to equity. His judgments have resonated across the centuries, and across the oceans, and they are the principal reason for continuing interest in Lord Eldon. Set out below is a brief sample of Lord Eldon’s decisions which have left their mark upon the landscape of legal principle.

112 Baker, 113. 113 Baker, 113; Melikan, 313-314. 114 Melikan, 307. 115 F Burns “The Court of Chancery in the 19th Century: A Paradox of Decline and Expansion” (2000) 21 UQLJ 198 at 200. 116 (1803) 8 Ves 481 at 497. 117 (1818) 2 Swans 408 at 414; 36 ER 670 at 674. 118 The “reproach” was that of Selden in Table Talk: “Equity is a roguish thing: for law we have a measure, know what to trust to; equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is equity. ‘Tis all one, as if they should make his foot the standard for the measure we call a Chancellor’s foot; what an uncertain measure would this be! One Chancellor has a long foot, another a short foot, a third an indifferent foot; ‘tis the same thing in the Chancellor’s conscience.”

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62. In Craythorne v Swinburne,119 a decision of 1807, Lord Eldon held that once a creditor calls upon one co-surety to pay the guaranteed debt that co-surety has a right to seek contribution from the other co-sureties. This is a principle of significant practical importance, since it protects a co-surety who is singled out by the creditor from having to bear the whole of the debt when there are other co-sureties who are able to pay.

63. Lord Eldon said:120

Upon the relation of principal and surety some things are very clear. It has been long settled, that, if there are co-sureties by the same instrument, and the creditor calls upon either of them to pay the principal debt, or any part of it, that surety has a right in this Court, either upon a principle of equity, or upon contract, to call upon his co-surety for contribution …

[W]hether [co-sureties] are bound by several instruments, or not, whether the fact is or is not known, whether the number is more or less, the principle of Equity operates in both cases; upon the maxim, that equality is Equity: the creditor, who can call upon all, shall not be at liberty to fix one with payment of the whole debt; and upon the principle, requiring him to do justice, if he will not, the Court will do it for him.

64. The principles laid down by Lord Eldon in that case were applied by the High Court in February this year in the decision of Lavin v Toppi.121 In that case, Ms Lavin and Ms Toppi were directors and shareholders of a company and had guaranteed the debts of that company. After the company went into receivership, the bank called on the guarantors to pay the outstanding $4.2 million debt. Ms Lavin disputed her liability but eventually settled with the bank and agreed to pay $1.3 million, in return for a covenant by the bank not to sue for the remaining amount. The other guarantor, Ms Toppi, paid the remaining $2.9 million of the debt. Ms Toppi then commenced an action against Ms Lavin seeking recovery of the amount she had paid that was in excess of her proportionate share of the liability. Ms Lavin defended that action on the ground that the covenant by the bank not to sue extinguished the right of contribution because she and Ms Toppi no longer had co-ordinate liabilities.

65. In a unanimous judgment, the High Court held that as persons jointly and severally responsible in respect of the same debt, each of them was bound, among themselves, to contribute equally to the discharge of the debt.122 As to the argument that the bank’s covenant not to sue made a difference, the High Court quoted the passage set out above, emphasising the words “the creditor, who can call upon all, shall not be at liberty to fix one with payment of the whole debt”.123 The principle laid down so clearly by Lord Eldon 208 years earlier provided the correct answer to the question in law, and one might add, in justice.

119 (1807) 14 Ves Jun 160; 33 ER 482. 120 (1807) 14 Ves Jun 160 at 164-165; 33 ER 482 at 483-484. 121 [2015] HCA 4; (2015) 89 ALJR 302. 122 [2015] HCA 4; (2015) 89 ALJR 302 at [36] (French CJ, Kiefel, Bell, Gageler and Keane JJ). 123 [2015] HCA 4; (2015) 89 ALJR 302 at [44] (French CJ, Kiefel, Bell, Gageler and Keane JJ). 16

66. Finally, one of Lord Eldon’s bankruptcy decisions was resurrected in Australian law in the last decade. In Ex parte Hill,124 a decision of 1804, Lord Eldon considered whether an order for costs was a provable debt in a bankruptcy, where the action at law had commenced before the bankruptcy, but the judgment and order for costs had been issued after the bankruptcy. After reviewing all of the authorities, Lord Eldon held that the costs order was not provable in the bankruptcy, since it did not constitute a debt at the time the bankruptcy was declared. This principle had significant practical implications. It meant that the creditor could not obtain any satisfaction in respect of the costs out of the bankrupt estate. But it also meant that the order for costs was not discharged by the bankruptcy, so that the creditor could pursue the bankrupt personally for the costs.

67. In the years following Ex parte Hill, there was statutory intervention in England with the effect that, if the judgment debt was a provable debt, then any costs order consequent upon that judgment debt would also be provable, even if the costs order came after the date of bankruptcy. But that statute amended, so that it no longer made special provision for costs orders. Nonetheless, the English Court of Appeal in the British Gold Fields case of 1899 held that if the judgment debt was provable, the costs debt would also be provable.125

68. This issue was revisited by the High Court in 2007 in Foots v Southern Cross Mine Management Pty Ltd, a decision taken on appeal from Queensland.126 In that case, His Honour Justice Chesterman delivered a judgment against Mr Foots for breach of fiduciary duty. After the judgment was delivered, but before any order for costs was made, Mr Foots petitioned for his own bankruptcy. Some months later, Justice Chesterman made a costs order against Mr Foots. Mr Foots appealed the costs order on the ground that the costs were a provable debt in the bankruptcy so that leave was required before an order for costs could be sought, and that no leave had been sought or given.

69. The majority of the High Court concluded that on the words of the Australian Bankruptcy Act it was plain that the costs were not a provable debt because there had been no liability for costs at the time of the petition for bankruptcy.127 In this respect, the High Court disapproved the decision of the English Court of Appeal in the British Gold Fields case.

70. Of particular interest for present purposes is the majority’s treatment of the decision of Lord Eldon in Ex parte Hill. Gleeson CJ and Gummow, Hayne and Crennan JJ said:128

124 (1804) 11 Ves Jun 646; 32 ER 1239. 125 In Re British Gold Fields of West Africa [1899] 2 Ch 7 at 11-12. 126 (2007) 234 CLR 52. 127 (2007) 234 CLR 52 at 75-76 [65]. 128 (2007) 234 CLR 52 at 76 [66]. 17

It may be added that once these points are grasped, it will be seen that the decision of Lord Eldon LC in Ex parte Hill is of more than mere antiquarian interest. Then, as now, a costs order could only be admitted to proof if it fell within the ordinary terms of the statutory provision governing proof of debts generally. No special judge-made rules were applicable to proof of costs. It is perhaps regrettable that the law has taken 203 years to return to this simple and orthodox position.

71. Those are just two examples of the influence which Lord Eldon has had over the law and the extent to which his sound reasoning commands respect across the centuries. It is a testament to his skill as a lawyer that the principles laid down by Lord Eldon are still frequently applied today, long after the procedural travails of the Court of Chancery have been consigned to legal history.

Postscript

72. Before concluding, what became of the relationship between Lord Eldon and his wife Bessie, whom he described on the occasion of their elopement in 1772 as the “perfect heroine”?129 Their marriage was by all accounts a happy one. They had six children together, four of whom survived infancy.130 All the evidence suggests there was an easy intimacy and companionship between them throughout their lives. For instance, Lady Eldon frequently took a carriage in the afternoon to meet Lord Eldon upon the termination of his Chancery sittings.131 The marriage lasted for 59 years until Lady Eldon’s death in 1831 at the age of 76. Lord Eldon lived for another seven years, passing away in 1838.

73. In 1811, nearly 40 years after the elopement, Lord Eldon composed the following poem for his beloved Bessie:132

Can it, my lovely Bessy, be That when near forty years are past I still my lovely Bessy see Dearer and dearer at the last?

Nor time, nor years, nor age nor care Believe me, lovely Bessy, will Much as his frame they daily wear Affect the heart, that’s Bessy’s still.

In Scotland’s climes I gave it thee In Scotland’s climes I thine obtained, Oh to each other let them be True till an heaven we have gain’d.

129 John Scott to Henry Reay, 12 December 1772: Melikan, 140. 130 Melikan, 147. 131 Melikan, 141. 132 Melikan, 141. 18

74. As his love affair with Bessie shows, Lord Eldon was not only the arch-conservative; he was not only the pedantic, plodding Lord Chancellor; he was not only a sharp legal mind steeped in ideas of fairness and duty – he was, after all, human.

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