Philosophy of Law Spring 2022

Lady Eldon’s Lace


The question Kadish and Schulhofer seek to answer is “when is impossibility a defense?” This comes up for so-called attempts, meaning failed efforts to commit a crime such as murder, smuggling, and so on. Mere attempts are often treated as crimes in their own right, though they are frequently punished less harshly than successful attempts are. Some attempts fail because what is being attempted is impossible. The question at hand is “when does the impossibility of the attempted action amount to an excuse?”

Kadish and Schulhofer’s official answer is that what they call factual impossibility is not an excuse but that legal impossibility is. That is, someone whose attempt at committing a crime fails because she is mistaken about the facts will not be excused. Lady Eldon, for instance, is guilty of attempted smuggling, according to Kadish and Schulhofer, even though it was impossible for her to break the law, given that she actually had English lace and not the French stuff that she thought she had.

By contrast, someone whose attempt fails due to legal impossibility will be excused according to Kadish and Schulhofer’s standard. If I go dancing falsely thinking that it is illegal, I am not guilty of a criminal attempt. It is legally impossible for me to break the law by going dancing since the law says nothing about dancing.

Having made the case for drawing a distinction between factual and legal impossibility, Kadish and Schulhofer turn around and present an objection to that very distinction: the case of Mr. Fact and Mr. Law. The fact that they both defend the distinction and raise objections against it can be confusing on, say, an exam.

Key concepts

  1. How the case of Lady’s Eldon’s lace works: what did Lady Eldon do, what point in law does it illustrate, and so on.
  2. The case of Mr. Law and Mr. Fact.


A few years ago, I learned that Lady Eldon’s case is quite similar to Sponge Bob’s Free Balloon.

Also, we’re going to meet John Scott, First Lord of Eldon when we read Warren and Brandeis on privacy. The story of his marriage to Lady Eldon, née Elizabeth Surtees, is really something.

Scott’s intended course of life was now shattered by his falling headlong in love with Elizabeth (1754–1831), the sixteen-year-old daughter of a fellow townsman, Aubone Surtees, a wealthy banker. They met in church one Sunday at Sedgefield and in a short time the young couple were in love. The difficulty was that the Surtees family were socially a cut above the son of a keelman and public-house keeper with career prospects no better than those of a country clergyman. They had to meet in secret while she was out riding, and when her parents put pressure on her to marry a more suitable bridegroom they decided to elope. The plan was carried out in the classic manner—the bride-to-be descended into her lover’s arms down a ladder from a first-floor window of her parent’s house—and they fled to Scotland, where on 19 November 1772 they were married according to the rites of the Church of England at Blackshiels, on the road to Edinburgh, by the Revd John Buchanan, a minister of the Scottish Episcopal church at Haddington. On returning to Newcastle they were forgiven by Scott’s father, but it was some weeks before the Surtees family were reconciled. The marriage was then resolemnized two months later, on 19 January 1773, at St Nicholas’s Church, Newcastle, in the presence of the bride’s father, who settled the sum of £1000 on the happy pair. Scott senior settled £2000 on them. They then left for Oxford, where John was to prepare for a new career.


Kadish, Sanford H., and Stephen J. Schulhofer. 1989. “The Case of Lady Eldon’s French Lace.” In Criminal Law and Its Processes, 699–75. Boston: Little Brown and Company.