Blackwood's Edinburgh Magazine — Volume 56, No. 346, August, 1844

"I was once," said Lord Eldon, "the seventeenth boy whom Moises flogged, and richly did we merit it. There was an elderly lady who lived in Westgate Street, whom we surrounded, and would not allow her to go either backward or forward. She complained, and he flogged us all. When he came to me, he exclaimed, 'What, John Scott! were you there too?' And I was obliged to say, 'Yes, sir.' 'I will not stop,' said he, 'you shall all have it.' But I think I came off best, for his arm was rather tired with the sixteen who went before me."

A flogging may be all very well in its recollection fifty years after. But the impression of the moment was, we presume, not quite so favourable. The inevitable consequence of this habit was to spoil both master and scholars. It made the timid boy pusillanimous, while it made the fierce more indignant and resentful. What could be the feelings of the master who could inflict almost agony on seventeen mere children, let the offence be what it might? Yet the offence was trifling; troublesome behaviour to an old woman in the street. A slight reprimand, or trivial fine, would have properly finished the affair; but then comes the flagellation.

But our great public schools exhibit another offence; the system of fagging alike foolish and mischievous. It only teaches the elder boys to be tyrants, and the younger to be liars and slaves. In practice, it promises to correct itself, by destroying the great schools. The proprietary schools, and other institutions for the education of the people, have uniformly discountenanced this abominable nuisance; and we know none whose abolition would do more credit to the heads of the church, or, if they should remain indolent on the subject, to the heads of the legislature.

William Scott, in 1761, was sent to Oxford as a candidate for a Durham scholarship, which he obtained, but which was perilled by a blunder of the head of Corpus Christi college. This worthy person delivered his opinion in this style:—"I think, gentlemen, there can be no doubt that young Scott is by far the best scholar of them. But he has told us that his father is a fiddler, and I do not quite like to take the son of a fiddler into the college." The doctor was an ass for his dictum; and it is only to be regretted that he did not live to express this impudent opinion in our day. England is certainly growing more rational, whatever colleges may be. Language of that sort, used in a country which boasts that no artificial impediment can be suffered to exist in the career of genius and virtue, would quickly meet the reception merited by its arrogant absurdity. The "fiddler" was a blunder of the doctor for "fitter," the local name of the coal trade.

William, in his twentieth year, became a tutor; John was intended for a coal-merchant, but his brother desired that he should be sent to Oxford. "Send Jack up to me," were the words; "I can do better for him here." He was then under fifteen.

A striking anecdote marks his first starting in life. "When I left school to go to Oxford," said Lord Eldon, "I came up from Newcastle to London in a coach, then denominated, on account of its quick travelling, 'a Fly,' being three or four days and nights on the road. On the panels were the words, Sat cito, si sat bene, (Fast enough, if well enough,) which made a most lasting impression on my mind, and have had their influence on my conduct in all subsequent life." He then exhibits a specimen of that sly humour which characterized him to the last.

"A Quaker fellow-traveller stopped the coach at the inn at Tuxford to give the chambermaid a sixpence, telling her that he had forgotten it when he slept there two years before. I was a very saucy boy, and I said to him, 'Friend, have you seen the motto on the coach?' 'No.' 'Then look at it, for I think giving her only sixpence now is neither sat cito nor sat bene."

On his arrival in London, he was overturned, with his brother, in a sedan chair. "This," thought he, "is more than sat cito, and it certainly is not sat bene." He concludes more gravely by saying, "It was this impression which made me that deliberative judge, as some have said too deliberative. And reflection upon all that is past, will not authorize me to deny, that while I have been thinking, 'Sat cito, si sat bene,' I may not have sufficiently remembered whether 'Sat bene, si sat cito' has had its due influence."

The chief feature of this portion of the biography is its recollections of remarkable persons. We have heard this one of Johnson before: but the names and place are now first given from Lord Eldon's anecdote-book.

"I had a walk in the New Inn Hall garden with Dr Johnson, Sir Robert Chambers, and some other gentlemen, (Chambers was principal of the Hall, and Vinerian professor of law. He was at this period on the point of proceeding to India as judge.) Sir Robert was gathering snails, and throwing them over the wall into his neighbour's garden. The doctor attacked him roughly, and charged his conduct as being unneighbourly. 'Sir,' said Sir Robert, 'my neighbour is a dissenter.' 'Oh,' said the doctor, 'if so, toss away, toss away as hard as you can!'"

This was evidently one of Johnson's odd freaks, a piece of his growling humour; for though no man disliked sectarianism more, no man had a stronger sense of charity to all.

His manners now and then exhibited strange absence. Lord Eldon says that he had seen him standing for a considerable time, with one foot on each side of the kennel of the High Street of Oxford, gazing at the water.

It was proverbially dangerous to contradict him. Dr Mortimer, head of Lincoln college, happened occasionally to interrupt him, by saying, "I deny that," while Johnson was holding forth. At length he said, "Sir, sir, you must have forgotten that an author has said, (he then repeated in Latin,) one ass will deny more in one hour, than a hundred philosophers will prove in a hundred years."

During the year 1774 and 1775, John Scott held the office of a tutor of University college; but he appears to have left the duty to Fisher and William Scott, his brother, those two dividing the emoluments. However, he was more importantly employed when he gave lectures on the law as deputy to Sir Robert Chambers, for which he had L.60 a-year. His first essay was sufficiently ridiculous. The law professor sent him his first lecture, which he was to read immediately to the students, and which he began, without knowing its contents. It happened to be on the statute 4th and 5th, Philip and Mary, on young men running away with young women. "Fancy me," said his lordship, "reading with about 140 boys and young men giggling at the professor." While Scott was eating his terms at the Middle Temple, he had some opportunities of seeing Mr Sergeant Hill, the great lawyer of his day, eminent for learning, and scarcely less so for eccentricity. Hill one day stopped Scott in the hall, and said, "Pray, young gentleman, do you think herbage and pannage rateable to the poor's rate?" Scott replied "that he could not presume to give an opinion to so learned a personage." "Upon my word," said the sergeant, "you are a pretty sensible young gentlemen—I don't often meet with such. If I had asked Mr Burgess, a young leader upon our circuit, the question, he would have told me that I was an old fool." Hill began an argument in the King's Bench thus:—"My Lord Mansfield and judges, I beg your pardon."—"Why brother Hill, do you ask our pardon?"—"My lords," said he, "I have seventy-eight cases to cite."—"Seventy-eight cases!" said Lord Mansfield; "you can never have our pardon if you cite seventy-eight cases!" After the court had given its decision, which was against the sergeant's client, Lord Mansfield said, "Now, brother Hill, that the judgment is given, you can have no objections, on account of your client, to tell us your real opinion, and whether you do not think we are right; you know how we all value your opinion and judgment." Hill wished to be excused; but as he always thought it his duty to do what the court desired, "Upon my word," said he, "I did not think that there were four men in the world who could have given such an ill-founded judgment as you four, my lords, have pronounced." This style, however, must have been now and then intolerable.

When Baron Hotham was placed in the Exchequer, he gave a dinner, as is usual on those occasions, at Sergeant's Inn, to the judges and sergeants. Hotham had been unsuccessful at the bar. Hill, in drinking his health, called him Baron Botham. Somebody whispered the real name to him. Hill said aloud, "I beg your pardon, Mr Baron Hotham; but none of us ever heard your name in the profession before this day." In justice to the baron, however, Lord Eldon adds the following note:—"The Baron made an extremely good judge. He had not much legal learning; but he had an excellent understanding, great discretion, unwearied patience, and his manners were extremely engaging; and those qualities ensuring to him in a very large measure the assistance of the bar, he executed his duties as a judge with great sufficiency."

Shortly after his commencing the profession, Scott reduced himself into a state of invalidism by excessive study. In 1774, when he and Cookson, another invalid, were returning to Oxford from Newcastle, where they had gone to vote at the general election, the good-natured cook of the inn at Birmingham, where they arrived at eleven at night, insisted on dressing something hot for them, saying that she was sure neither of them would live to see her again. A medical friend remonstrated with him on the severity of his studies. "It is not matter," answered Scott, "I must either do as I am now doing, or starve." He rose at four in the morning, observed a careful abstinence at his meals, and, to prevent drowsiness, read at night with a wet towel round his head. At last it became necessary, as the time of being called to the bar approached, to provide a dwelling in London. In his latter days, he pointed out a house in Cursitor Street. "There," said he, "was my first perch. Many a time have I run down from that house to Fleet Market, to get sixpennyworth of sprats for supper." At this period, in mentioning to his brother the kindness of a great conveyancer, Mr Duane, whom he attended as a gratuitous pupil, he says—"This conduct of his has taken a great load of uneasiness off my mind; as, in fact, our profession is so exceedingly expensive that I almost sink under it. I have got a house barely sufficient to hold my small family, which will, in rent and taxes, cost me L.60. I have been buying books, too, for the last ten years; but I have got the mortification to find that, before I can settle, that article of trade—for so I consider it—will cost me near L.200." Of Duane's service to him, he said, a little more than a fortnight before his death, "The knowledge I acquired of conveyancing in his office, was of infinite service to me during a long life in the Court of Chancery."

In Hilary Term 1776, Scott was called to the bar by the Society of the Middle Temple. When we recollect what a leviathan of wealth the Lord Chancellor was in his latter days, it is amusing to read the statement of his early struggles, however painful they must have been at the time. "When I was called to the bar," said he, "Bessy (his wife) and I thought all our troubles were over. Business was to pour in, and we were to be almost rich immediately. So I made a bargain with her, that, during the following year, all the money that I should receive during the first eleven months should be mine, and whatever I should get in the twelfth month should be hers. What a stingy dog I must have been to make such a bargain! I would not have done so afterwards. But, however, so it was— that was our agreement; and how do you think that it turned out? In the twelfth month I received half-a-guinea. Eighteen-pence went for fees, and Bessy got nine shillings. In the other eleven months I got not one shilling." This was but sorry encouragement; but such is the profession. Men must wait. Property, or perhaps life, will not trust themselves to inexperience; and thus, from the very nature of the Bar, a long period of probation must be borne by all.

There had been an old and invidious conception which represented the Lord Chancellor as the son of a coal-heaver. It appears from the memoir that his father was, on the contrary, possessed of property very considerable in those days. He was what we should now call a broker in the coal-trade—technically, a coal-fitter or factor—who transacted business between the coal-owner and the ship-owner. He was intelligent and industrious, and prospered accordingly; leaving, at his death, property worth L.25,000 to his eldest son William; another L.1000 to John; making, in the whole, L.3000, and respectable sums to his other children. He appears to have realized above L.30,000—a sum equal to nearly double at the present day.

Lord Eldon, though all gravity on the bench, and seldom indulging in any sportiveness in parliament, was a humorist at table, and fond of humorous recollections. His story of Dunning on his travels has got into print; but, in the hands of a genuine humorist, it must have been an incomparable ground for burlesque. Dunning, when solicitor-general, had gone to see the Prussian reviews. Some of these were profoundly secret, and were presumed to be experiments in those tactical novelties with which Frederick dazzled Europe. But others were showy displays, to which the king invited the princes and generals of the Continent. Dunning had announced himself as Solicitor-General of England. Frederick, either knowing nothing of solicitors, though much of generals, or what is more probable—for he was the most deliberate wag in existence—determining to play the lawyer a trick, ordered him to be received as a general officer, and provided him with a charger for his presence at the grand display. Dunning, long unused to ride, soon found that he had his master under him. The charger, as well disciplined as one of his majesty's grenadiers, and delighting, like the horse of Joab, in the "trumpets and the shouting" of the captains, rushed every where with his unwilling rider; and it was not till after a day of terror, in which his cavalry exploits must have exposed him to frequent laughter, that the lawyer escaped from the din of battles, and rejoiced to find himself with unfractured bones, resolved never to play the general officer again.

There may be "some things new under the sun," in contradiction to the proverb; but they are not many, at least in wit. The story of the celebrated cardinal, who proved that the sun went round the moon, and vice versa, is sufficiently wall known. Dunning's pleading pro and con. is vouched for from Scott's personal experience. Dunning led in a cause in which Scott was junior counsel. The leader so evidently reasoned against his own client, that Scott, after long amazement, at last touched his arm, and whispered that he was speaking on the wrong side. Dunning instantly perceived his mistake, and gave him a rough reprimand (we may presume sotto voce) for having suffered him to go on so long. He then recovered himself with his habitual dexterity; said that he had stated all that could be urged against his client, and that he would then proceed to show how utterly futile was the argument.

A good deal of his early life on the circuit was passed with Lee, then the leader of the northern circuit, and a man of great vigour of mind. A curious question once rose between them on professional morality. At supper one night, Scott made the remark, that Lee always exerted himself to gain a verdict by a display of his great legal knowledge; but not always with a regard to the accuracy of either his law or his facts. Lee contended that it was the duty of counsel to state what the party himself would have stated, and get a verdict if he could. He, however, pondered on it; and, as they were retiring for the night, said, "Scott, I have been thinking of the question you asked me; and I am not quite sure that the conduct you represented will bring a man peace at the last."

Lord Eldon quotes Johnson's opinion, which had been referred to—and which stated that it was the duty of counsel, after having stated the law and the facts exactly, to exert his abilities to the utmost to gain his cause—the judge being supposed the abler lawyer, and the reasoning of the bench amending what was erroneous in that of the bar. Lord Eldon adds, in his rather too dubious way—"It may be questioned whether even this can be supported." Of course it may. The object of law is to do justice; and justice is not done if the ingenuity of an able advocate is entitled to gain a false verdict. For how is this to be gained? Either by a suppression of the truth in part, or by a colouring of the falsehood, or by an invention of facts, aided by a misinterpretation of law; all palpably against conscience. The true rule appears to be—the lawyer stands in the place of the client, to do what the client would and could have done, if he had equal skill in exhibiting the circumstances, and equal knowledge of the law which bore upon them. But as the client has no right to tell an untruth of any kind for himself, so neither has the lawyer the right to tell it for him. The lawyer's taking a brief in a cause of which he has a bad opinion, is wholly a different matter. The custom of the bar justly decides that he must not refuse the brief, because he cannot be sure that he knows the whole cause; for facts unexpected, and even unknown, may start up; he may be mistaken in his personal conception of the facts, the motives, and the law: new facts may come out on the trial. There is a judge to decide on hearing both sides, and the counsel has no right to assume the office of the judge. Of course, if he is made aware of any fraud in the conduct of the case, or even suspects it, he must abandon his brief at once.

Lee's manner was of that rough and ready kind which always tells with a jury. Once, after a very keen cross-examination, the witness charged him with severity to one who was his relation. "Why, how do you make that out," said Lee. The man stated the genealogy. "Well," said Lee, "I believe you are right. I only wish, my good fourth or fifth cousin, you would speak a little truth for the honour of the family; for not one word of truth have you spoken yet."

Even this able man had gone many years to York without a single brief; and even then began only on a burlesque case, fabricated by his brother barristers.

Accuracy of recollection is obviously of peculiar importance at the bar; but the profession has sometimes exhibited surprising instances of this faculty. Lord Eldon spoke of Chief Justice De Grey's powers of memory as extraordinary. De Grey suffered so much from the gout, the he used to come into court with both hands wrapped in flannel. He thus could not take a not. "Yet I have known him," said Lord Eldon, "try a cause that lasted nine or ten hours, and then, from memory, sum up all the evidence with the greatest correctness. When counsel offered any intimation of his inaccuracy, his answer was—'I am sure I am right; refer to your short-hand writer's notes;' and he was invariably found to be right." A similar faculty is possessed by that very distinguished person, Lord Lyndhurst.

It is remarkable that none of the lucky accidents which have raised so many inferior men into prosperity ever occurred to Scott, who was yet destined to rise to such opulence and eminence. His first steps in life might be regarded as all but ruin. He abandoned his college, where he had secured at least existence; and he abandoned it for a profession proverbially hazardous, and in which, for whole years, he made nothing. At this period, too, when scarcely able to support himself, he ran away with a portionless wife; and thus began the world not merely helpless, but with a new weight which has broken down many a strong mind. The opinion of every one who took an interest in him was, that this marriage was fatal to all his prospects. It necessarily compelled him to give up all collegiate objects; and we recollect to have seen in print a fragment of a letter from his elder brother (afterwards Lord Stowell) to a friend, in these words—"Have you seen what my foolish brother has done? He has made a runaway match; he is utterly ruined." The opinion of Moises, his schoolmaster, was equally decided. "Jack Scott has run off with Bessy Surtees, and the poor lad is undone."

Scott entered as a student of the Middle Temple in January 1773. In six years after, what was his progress? We have this letter from Lord Stowell about 1779. "Business is very dull with poor Jack, very dull indeed, and of consequence he is not very lively. I heartily wish that business may brighten 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. But mum, not a word of this to the wife of your bosom."

At length, however, day began to dawn, and his powerful understanding and solid knowledge found the opportunity, which to such means is generally all that is wanting. A conversation with an old friend lets us into a curious trait of Lord Mansfield. "Was the Court of Chancery your object when you first came to the bar?" asked Farrar. "Certainly not," answered Lord Eldon. "I first took my seat in the King's Bench; but I soon perceived, or thought I perceived, a preference in Lord Mansfield (the Chief Justice) for young lawyers who had been bred at Westminster School and Christ Church; and so, as I had belonged to neither, I thought I could not have fair chance with my fellows, and therefore I crossed over to the other side of the hall. (The Courts of King's Bench and Chancery were at that time on the opposite sides of Westminster Hall.) Lord Mansfield, I believe, was not conscious of the bias; he was a good man." Mansfield's goodness was sufficiently questioned by his contemporaries; yet if he exhibited this bias, he could not have been a just man. The cause which first made Scott known was Acroyd v. Smithson. The question was—whether, in a property willed in fifteen shares to fifteen people, one of them dying in the testator's lifetime, the lapsed share did not belong to the heir at law. He argued the case before the Master of the Rolls, Sir Thomas Sewell. "He has argued it very well," said Sewell. But he gave it against Scott. An appeal came before Lord Thurlow. Scott argued his point. Thurlow took three days to consider, and then gave his decision in favour of the heir-at-law—a decision which has settled all similar questions ever since. He then had an omen of his prosperity. As he left the hall, a solicitor of some note touched him on the shoulder, and said, "Young man, your bread and butter is cut for life."

He then had another golden opportunity. Fatigued with waiting for fortune, he was on the point of leaving London, and taking up his abode at Newcastle, of which he was offered the recordership. A house was even taken for him, when, one morning at six o'clock, Mr, afterwards Lord, Curzon, and four or five other gentlemen, came to his door, mentioning that the Clitheroe election case was to come on that morning at ten before a committee of the Commons; that one of their counsel was detained at Oxford by illness, and their second was unprepared and would not appear; and that they were sent to him as a young and promising counsel. Scott told them that, on so short a notice, all he could do would be to give a dry statement of facts. The cause thus put into his hands went on for fifteen days. "It found me poor," said Lord Eldon, "but I was to be rich before it was done. They left me fifty guineas at the beginning; then there were ten guineas every day, and five guineas every evening, for a consultation—more money than I could count. But, better still, the length of the cause gave me time to make myself thoroughly acquainted with the law." After all this, the side on which Scott was, was beaten by a single vote. But Mansfield, (afterwards Sir James,) on hearing his speech in the committee, came up to him in Westminster Hall, and strongly advised him to remain in London. Scott answered that an increasing family compelled him to leave London. Wilson, a barrister, advised as Mansfield had done, and even generously offered to make up his income to L.400 a-year. He received the same answer. "However," said the chancellor, with natural selfgratulation, "I did remain, and lived to make Mansfield chief justice of the common pleas, and Wilson a judge." Moreover, his sagacity gave him additional triumphs on the northern circuit, where he soon took the lead. He was counsel in a cause which depended on his being able to make out who was the founder of an ancient chapel in the neighbourhood. "I went to view it," said Lord Eldon. "There was nothing to be observed which gave any indication of its date or history. However, I remarked that the ten commandments were written on some old plaster, which, from its position, I conjectured might cover an arch. Acting on this, I bribed the clerk with five shillings to allow me to chip away a part of the plaster; and after two or three attempts, I found the keystone of an arch, on which were engraved the arms of an ancestor of one of the parties. This evidence decided the cause. Here was an instance of good-luck, undoubtedly, but also of great diligence and great sagacity. A negligent counsel would never have thought of examining the chapel in person; a dull counsel would never have thought of examining the arch; but it happens that the sagacious are generally lucky, and that, therefore, the first quality is sagacity."