CHAPTERVIQUARTER SESSIONSSecond Citizen: Marry, we were sent for to the justices.Third Citizen: And so was I: I’ll bear you company.Shakespeare: “RichardIII.”The quarter sessions courts are some of the oldest criminal courts in the kingdom. Some time in the reign of EdwardIII.their quarterly sittings were ordained by statute, but long before that they were a general court of justices for the maintenance of the peace, though not sitting quarterly. Henry V. appointed them to sit in the first weeks after Michaelmas Day, the Epiphany, Easter and the Translation of St. Thomas à Becket, which is July 7. These dates are but slightly modified by modern statute.It is curious how through the ages the clever ones of the world have gibed and jeered at justices and justices’ justice. And yet at the bottom of the heart of English folk there is a feeling of love for these old institutions, and after all—fair play to them—they work well and make no more blunders in the administration of justice than any other courts, as the statistics of Appeal Courts will testify. But when you have on the bench a large number of laymen, many invested with a power the attributesof which they do not understand, you are bound to get character and comedy, and that is what to my mind attracted the writers of various ages to the justice of the peace rather than any burning desire for legal reform.And well it is that it has been so, for otherwise we should never have met Cousin Shallow—Robert Shallow, Esquire—“In the county of Gloster, justice of peace andcoram. Ay, cousin Slender andcust-alorum. Ay, andrato-lorumtoo.” And these allusions to-day only tickle the fancy of the antiquarians. But on their own first night every playgoer must have known the difference between a mere justice, and one of thequorum, and knew too, that the Custos Rotulorum was the principal civil officer of the county. I wager the play opened with a roar when Shallow stamped himself on his entrance as an absurd boaster who did not even know the titles of the dignities he claimed to have held. One can forgive Fielding his laughable account of Squire Western and his justiceship, which “was indeed a syllable more than justice,” for Fielding was a stipendiary magistrate, and I never met a stipendiary who had not a low opinion of the lay justices, the reason being, I suppose, as Montaigne tells us, that “few men are admired by their servants.” Dickens was a reporter, and no doubt had come across the actual justice of the peace who sat for the portrait of Mr. Nupkins, but I think he would have agreed that Sam Weller’s judgment that “there ain’t a magistrate goin’ as don’t commit himselftwice as often as he commits other people” is to be taken in a Pickwickian sense. Lay justices no doubt do commit themselves individually, but is this not true even of justices of the King’s Bench Division? For instance:—But forbear! Who am I that I should suddenly become presumptuous and self-willed and begin to speak evil of dignitaries.And looking back quite honestly at the work done by justices at quarter and petty sessions, I think the outcry that arises over individual instances of mistake, though good as a tonic for the bench, is not a fair thing if it is the only comment that fellow citizens have to offer to the wide amount of useful and honourable work that is done by the lay magistracy.But as a beginner at the Bar, I did not go to quarter sessions to study the interesting social problem of the value of a lay magistracy, but because it was in these courts I first attained not only the right of audience, but the thing itself. There were many sessions to attend, the most important being the sessions of the county holden at Lancaster, Preston, Salford and Kirkdale. Then there were the city sessions for Manchester and Liverpool, and borough sessions at Wigan and Bolton, the last-named being genially presided over by that good friend of the circuit, Sam Pope, Q.C. Even if you had no work when you got there, the jaunt into new surroundings and the social meeting when you arrived, and the feeling that after all you had a place in the pageant of some kind, was a pleasant relieffrom the dreariness of sitting in chambers. I suppose the racehorse who walks in after the race is over prefers being out on the heath to standing in his stall all day, and so it is with a junior barrister at quarter sessions. It is good to be in the race at all. And then as now, and I suppose as always, there was the same moaning about the want of work and the overcrowded state of the profession. But in the nature of things a profession, to be worth anything at all, must be overcrowded, the struggle for existence must be strenuously fought, many must be called and few chosen or a high standard of work will never be maintained.There is no doubt at all that the most difficult thing to do at the Bar is to begin. For years you go round the links without a golf ball, as it were, unless you have the luck to pick one up somewhere. Gilbert’s classical receipt, namely, to fall in love with the rich attorney’s elderly, ugly daughter, is scarcely available to the married man.I remember a disappointed cynic on the Northern Circuit, watching a third-rate encounter between two barristers of different religions, saying to me: “Parry, if I had my time over again I should start the Bar as a Jew or a Roman Catholic.” And certainly if you look among the list of those who have done well in the profession the members of these bodies are not unnumbered among the upper dogs.Another way to success is to start with plenty of money. As Falkner Blair said of a wealthy young junior, who was keen about getting work, “What apleasant thing it would be to have £5,000 a year to buy briefs with—only why not buy something jollier?”But money and friendly solicitors are not alone sufficient. Indeed, I have known men who were injured at the opening of their career by having briefs thrust at them which they were not equipped to deal with. Many of us, however, would have taken that risk willingly, no doubt.If, however, you know no solicitors and belong to no community specially interested in your welfare, and have no money, the only way is to show yourself at quarter sessions in the hope that you may be discovered by some enterprising solicitor.The quarter sessions of the city of Manchester, holden at Minshull Street, are run by the city authorities. There is a list of the members of the Bar present, and as counsel have the sole right of audience, each prisoner has to be prosecuted by counsel, and the minor cases are “souped” or given out in rotation among the junior bar. After this ceremony was over those of the juniors who had drawn blanks made off to lunch at their clubs, and were seen no more.I found it sufficiently entertaining to sit in court and listen to Blair and Shee, and Byrne and McKeand, defending prisoners, and my first glimpses of Manchester clubs were so pleasant that I deliberately did not join any for some time, so that I should not be tempted to be away from chambers in working hours. There were generally two courtsat the Manchester Sessions, and it was not long before I was asked by some of my seniors to hold their briefs in one or another.At that time our recorder was Henry Wyndham West, Q.C. Manchester and West had very little in common. He was a typical Whig aristocrat, born and bred in London, impartial, honest, and fearless in his administration of the law, but apparently wanting in sympathy for, and certainly lacking in knowledge of, the working class in the north of England. It is said that in 1865, when he was appointed to the Recordership, he startled a Manchester jury by some strange comments on the evidence as to the time of a theft. “Then, gentlemen, we are told that this happened at the dinner-hour. I think learned counsel for the Crown should have asked the witness to state the time more definitely, for, as we all know, the dinner-hour may mean any time in the evening between 6.30 and 8.”West, in his day, had had a great practice in the Yorkshire West Riding Sessions in cases as to the “settlement” of paupers, but these were all dead and gone now, and, except in a few important prosecutions, he did not do much work on circuit. For some reason unknown, he and the late Lord Coleridge did not love one another. Falkner Blair used to tell a story of Lord Coleridge coming on circuit in the early days and asking him about West.“I never see him at Westminster. What does hedo?” asked Lord Coleridge in his suavest and most silvery tongue.“He’s Recorder of Manchester,” replied Blair.“Ah!”“And Attorney-General for the Duchy of Lancaster.”“Dear me!”“And judge of the Salford Hundred Court of Record.”“Is he really?”“And prosecuting counsel for the Post Office.”“You don’t say so!” said Coleridge, throwing up his head in astonishment. “What a lot of outdoor relief the fellow has!”West, however, certainly had his revenge in a case at Liverpool. He was defending some men for assault upon a woman. The jury had disagreed at Manchester, and Lord Coleridge, who was eager to get a conviction—probably for good reason—tried them again in Liverpool. Louis Aitken—who held a junior brief in the case with West—used to give a graphic account of the scene as one of the most polished, yet deadly encounters he had ever witnessed between Bench and Bar.West had put up some men in the court, and asked the woman questions about them. He did not call the men as witnesses. After West had made his speech to the jury, during which there had been several skirmishes between Coleridge and himself, the Lord Chief Justice began the summing-up and West went out of court. The Chief commentedseverely upon West omitting to call the men who had been shown to the jury. Nash, one of West’s juniors, jumped up to remonstrate, but Lord Coleridge swept him aside. Aitken went out for West, who returned and made an endeavour to interrupt the judge, for which he was sternly rebuked, and the summing-up continued to the end and the jury retired. Then West, with aristocratic humility, but in the tone of a schoolmaster who is going to administer punishment at the end of the lecture, began:“My lord, I understand your lordship commented unfavourably on my action in not calling as witnesses the men who were put up in court for identification by the prosecutrix.”“I did, indeed, Mr. West,” replied Coleridge in his silkiest manner. “Very unfavourably; indeed, I regretted to feel compelled to make such strictures on the conduct of counsel.”“I feel sure your lordship would, and it is with equal regret, and only because it is my duty to the prisoners and your lordship, that I must call your lordship’s attention to the case of the Queen against Holmes, reported in 1871 in the first volume of the Law Reports Crown Cases Reserved, at page 334. This case overruled the case of the Queen against Robinson, which doubtless your lordship remembers.”“And what does the Queen against Holmes decide, Mr. West?”“It decides that such witnesses cannot be called,”said West, handing up the volume with a grave bow. “Your lordship will find that the Court of Crown Cases Reserved had exactly the same point before them, and overruled your lordship’s learned father for the same error that your lordship has fallen into this morning.”Coleridge did not lose his head, but replied with a charming bow and a sweet smile, “I am much indebted to you, Mr. West.”West bowed low, and the duel was over.Coleridge had to send for the jury and tell them his mistake, which he did, of course, amply and thoroughly, and the men were acquitted.To my thinking West was a valuable asset to Manchester citizens, and they should have accounted it a privilege to have the constant example of a righteous aristocrat before them, if only to remind them that the Manchester ideal of men and manners is not the only ideal in the world. In nothing did these two ideals clash with greater sound and fury than in relation to commission cases, many of which came before the Court of Record. The commission sought to be recovered in that court was generally about as mean and low a commercial transaction as could be well imagined. On the sale of the goodwill of a public-house or a business some tout would get hold of seller or buyer, and if he refused to be squeezed into paying a commission there would be a speculative action.In one of these cases relating to a public-house I was addressing the jury, and our best point, Iremember, was that up to now no one had paid a commission of any kind, and therefore it was very reasonable my client should have one. I was expatiating on this when West interrupted in his biting way:“Is it a crime in Manchester to sell a public-house without paying a commission?”“Not a crime,” I replied, “but exceedingly bad taste.”The Manchester jury nodded approval.After I had won the case West and I walked up Strangeways together. He never wore a greatcoat, and in the summer sported a white hat. I can see his upright figure striding along with hands behind his back and hear the comedy of indignation in his voice as he turns round to me and says, “I tell you what it is, Parry. If a Manchester man sold his soul to the devil, some fellow-citizens would sue his executors for a commission on the transaction.”“Very likely,” I replied, “and, after all, there are several members of the Northern Circuit we could spare to go down and take the evidence.”But one would give a wrong impression of West if one left it to be understood that he was an indifferent judge. He was most earnest and painstaking in the discharge of his duties, and though he never sought to gain popularity by sentimentalism, he was very ready if he felt he could honestly do so to extend clemency to youths and first offenders and to the weak who had fallen through temptation. The heavy sentences he gave to the “scuttlers”—gangsof young hooligans who used to terrorise the back streets—were the subject of much comment. But they stamped out the disease, at all events temporarily, and left the ground clear for the more permanent cures of social reformers. The scuttler of the eighties finds a more wholesome outlet for his energy to-day in the boxing competitions at the lads’ club or in the battalions of the Boy Scouts. On all occasions where West had to deal with questions having a moral and social as well as a legal aspect, his judgments were always healthy in tone and liberal and enlightened in policy. I remember well in a prize-fighting prosecution how clearly and wisely he drew the distinction, difficult to define in legal language, but easily understood in the common-sense light he threw upon it, between boxing as a wholesome and desirable sport or pastime, and prize fighting as a brutal and degrading spectacle or entertainment.In all affairs that came before him he expressed the views of a moderate, sensible English gentleman who brought sound instincts of right and wrong to bear upon his interpretations of the law. Those who knew him personally will long remember the charm of his somewhat old-world courtesy, and recall with pleasure the wealth of his reminiscences and anecdotes of early Victorian years. And now he is gone we may openly remember his charitable deeds. Harsh and stern as he was generally accounted, some of us could have told of cases where he had personally assisted the relatives of those whom in thecourse of his duty he had been obliged to sentence to imprisonment. But had one written of these things in his lifetime, one would have forfeited his friendship, so careful was he to hide his good works before men and to leave his left hand in ignorance of the doings of the right. To those who knew the man as well as the judge, he will always remain an example of the aristocrat at his best.The quarter sessions of the county, holden at Preston and at Salford, were, when I first went to Manchester, very thriving and busy institutions. They were both presided over by William Housman Higgin, Q.C., a Lancashire worthy of an old-fashioned type. He took great pride in the orderly administration of justice at his sessions, and conceived the Lancashire county justices to be ideal managers of county affairs. It was, indeed, generally admitted by the enemies of the system that Lancashire gained very little from the practical point of view by the institution of a county council, so excellently had the magistrates done their work. It grieved Higgin as years went on to see the new borough sessions of Oldham, Salford, Blackburn, and Burnley carved out of his district and diminishing the prestige of his most ancient jurisdiction, and he argued from a public point of view that as the leaders of the junior bar could not attend at these minor sessions, the work would never be done with its old efficiency. Be this as it may, it is certain that there is to-day no school of advocacy comparable to Higgin’s quarter sessions when they were led byShee, Falkner Blair, and Charlie McKeand in the criminal cases, and Sutton, Bradbury, and Yates in the rating and licensing appeals.Higgin wore a beard, and his movements were greatly impeded by gout. There was, perhaps, no great outward appearance of dignity in his presence, but, sitting in court when he was on the bench, I always felt that I could realise the phrase “the majesty of the law.” Everything, however trivial, was conducted in the grand manner, and if Higgin was not without humour outside the court, within its walls he did not allow this to escape even by the twinkle of an eye.I remember at Preston a little juryman of a fussy nature claiming to affirm instead of taking an oath. The matter was referred to Higgin, who bowed gravely and said, “By all means, let the gentleman affirm.”This did not satisfy the little juror, who, with impudent insistence, called out in a shrill voice, “But I claim a right to affirm. I claim it as of right.”“Oh!” said Higgin, suavely, looking down on the unfortunate little man as a dignified cat might look at a mouse. “Oh! you claim it as of right. And on what ground, may I ask?”The little juror flushed with pleasure. Higgin was giving him the opportunity he had been looking for.“Because I am an atheist,” he blurted out: “I do not believe in a God.”Higgin gave him a withering look and waved him out of the box with his gouty hand, and another juror was chosen and sworn. Even then, outraged as Higgin’s feelings were, I think nothing would have happened, but the pertinacious juror jumped up and said, “I suppose I may go.”This was too much for Higgin’s patience, and with all the solemnity at his command Higgin delivered the following sentence: “No, sir, you may not go. You are summoned here as a citizen to take part in these proceedings as a juror. If I am to believe your word—and, unfortunately, I see no reason to doubt it—the oath that has been offered to you would not be binding on your conscience, and there is no law enabling you to qualify yourself for your duties. At the same time, you have been rightly summoned here, and it is your duty to be present from the sitting of the court at nine-thirty until the court rises for the day. Go into yonder gallery,” continued Higgin, pointing up to a solitary gallery opposite the bench, “and continue there, under pain of fine and imprisonment, until the sessions are concluded, from which place it will be your privilege to watch the proceedings of twelve honest Englishmen who do believe in God.”I think at the end of the harangue, so impressively did Higgin deliver it, that the juror expected to hear that he was “to be hanged by the neck until he was dead.” He slunk away to his lonely gallery, and Higgin never failed to make him a special bow of recognition every time he entered the court.The sentences given by Higgin seemed to me terrible and almost brutal, but, as a matter of fact, the class of criminal dealt with is a very difficult proposition. Parliament provides no other way of keeping him out of mischief than penal servitude. If he is constantly in and out of prison he is a source of anxiety and wretchedness to his family and a dangerous nuisance to the public. Higgin’s view was that when a man insisted on living by theft, society ought to keep him out of mischief, and, though it is a rough and perhaps cruel method of doing it, the sentimentalist would probably be better employed in instituting some kinder form of asylum for the hopeless cases than in vainly clamouring for their release from prison. There is at least as much to be said for the judge who put the Dartmoor shepherd in prison as for the statesman who let him out.Higgin had a very considerable practice in arbitrations, both as counsel and umpire or referee. He was popularly said to have killed the arbitration system in Lancashire by the length of the arbitrations and the height of his fees.Certainly the old days of fat arbitrations, with short hours and long lunches, did not survive into my time, though I was engaged in one or two important arbitrations which I thought were fought out with businesslike dispatch. Indeed, I think a good arbitration is the very best tribunal for a business dispute, always assuming that it is the interest of everyone connected with it to get it done at reasonable speed.In Higgin’s day, alas! it was otherwise. I remember a good story Gully once told me of a Manchester arbitration. Two business men, brothers and partners, had very serious disputes, and agreed to dissolve partnership. Under their deeds of partnership the dispute had to go to arbitration. Arbitrators were chosen on each side and Higgin was appointed umpire. The tribunal sat at the Mitre, a favourite home of Higgin, and on the first day of the case Gully appeared for the defendant and Leresche—afterwards County Stipendiary—for the plaintiff. Neither brother had spoken to the other for many weeks, and the whole dispute was rather a painful one. About 11 o’clock Higgin arrived, and having greeted everyone with friendly but dilatory courtesy, opened a few letters which his clerk had brought, and replied to them after obtaining leave of counsel to do so.Mine host then brought in the menu, and general consultation as to lunch took place. The hour was fixed at 1.30, the hot-pot ordered, and the brand of wine decided upon. The two brothers glared at each other during these strange proceedings with the uneasy feeling that this was to be a funeral feast and they were the corpse. To their rough Lancashire minds it had somewhat that appearance. And now it was nearing 12, and Leresche proceeded to open the case. Leresche was not a man of few words at any time, and his methods of obtaining full value out of an arbitration were expensive and peculiar. He started off by reading someScots deeds. They were deeds, he said, referred to in the partnership deed, and were deeds of trust and settlements and wills showing for some generations where the partnership moneys had come from. Gully protested that these were not relevant, but Higgin gravely shook his head and said he never interfered with counsel in his opening, and away sped Leresche through a bewildering maze of incomprehensible Scots law, continuing each deed to the end of its jargon, and then folding it up and placing it reverently in the middle of the table in front of Higgin. There was a leisurely and social lunch, all enjoying themselves except the two brothers, who sat silent in sulky gloom. Leresche, duly refreshed, went at the deeds again until about half-past three, when he suggested an adjournment.“For now,” he said, putting his hand on the goodly pile before him, “I have read every deed, and, subject to what you may say, sir, and what my friend, Mr. Gully, may have to say, I really cannot, for my part, see why it should be necessary during the course of the arbitration to refer to these deeds again.”“I cannot see how it would assist us,” said Higgin, gravely, “unless Mr. Gully——”Gully assured him he never wanted to see or hear of the deeds again.“Very well, then, Mr. Leresche, about to-morrow? Eleven o’clock?”“Yes, sir,” replied Leresche, “and then I hope to begin to open the business part of my case.”“By all means,” said Higgin, “eleven o’clock, gentlemen.”As the two brothers were going downstairs the elder tapped the junior on the shoulder.“Come and have a whisky with me, Donald.”“I will, Ronald.”“I tell you what it is, Donald. We’re being had on a bit here.”“I’m thinking the same, Ronald.”They retired into the snug bar, and spent a friendly hour together. The next morning at eleven all met except Ronald and Donald. Their solicitors with blank faces produced letters from their clients that the litigation was over, and would they each send in their bills.“Ah!” said Higgin, smiling pleasantly at the disconsolate Leresche. “To hear you read those Scots deeds would take the fight out of the most litigious. I ought to have stopped you. But, never mind, we have one consolation. Blessed are the peacemakers.”And though both West the aristocrat and the Whig and Higgin the stern, unbending Tory were both sound judges, kind-hearted men and honest, upright, conscientious administrators of the law, yet it is easy to see that their usefulness was limited by their education and environment, and that it would be untruthful to deny that in all human beings—in judges no less than in smaller men—there is a class bias drawing their minds to certain conclusions and points of view. And no one cancertainly blame those whose bringing up has been less fortunate and whose University has been the factory or the pit, from recognising very clearly that the judicial mind does not readily coincide with the views and thoughts and aspirations of their own class. And this must remain so as long as the official places in the law are the appanage of the upper and middle classes.I have often wondered why more of the clever younger men of the working class do not grapple with the study of the law. A few years ago I addressed a labour audience in Manchester on this subject and listened to an interesting firsthand discussion of the matter. Although not expressed in so many words, I think there was an idea at the back of many speakers’ minds that an individual selected to be educated and equipped for the profession would in the end break away from service to his order and seek to make good a great individual career. But I am not sure that this would of necessity be the case. I cannot imagine, for instance, that Charles Bradlaugh if he had been at the Bar would have utilised his sound and ingenious legal mind merely in the making of money. And the experiment should certainly be tried in the interests of the whole community, for the Labour Party will never be able to express its thoughts articulately and clearly until it has its own Attorney-General who can advise its Cabinet onthe legal aspects of the measures they have to consider.And one reason why I should not like to see the ancient lay office of Justice of the Peace abolished is because there and there alone men of the working class are brought on to the bench as actual ministers of the law. No doubt as time goes on and education advances we shall find the circle widening out. There should be far more working men sitting on juries, and paid for their services, there should be more representatives of all branches of trades and industries sitting on the bench and taking part in quarter sessions, and the amalgamation of both branches of the profession would, I feel sure, lead to less class origin in judicial appointments.But looking at the administration of the law in this country in comparison with others, I cannot but think that the court of quarter sessions—especially the larger county sessions, where the lay element is strongly represented upon the bench—is a court wherein an innocent man desiring an honest verdict may take his trial with a real sense of security. And though no sane and reasonable citizen doubts the honest administration of the law in our country, yet perhaps words have fallen of late years from the lips of those in high places not unnaturally misunderstood in the lower places where they fell. For there are judges who make little effort to put themselves in the place of the poor folk whose affairs they are dealing with, and forgetto obey the fifth law of Nature according to the statute of Thomas Hobbes of Malmesbury. And “the fifth law of Nature is Compleasance; that is to say, that every man strive to accommodate himself to the rest.” Or as St. Paul wrote to the Galatians—but you remember that.
Second Citizen: Marry, we were sent for to the justices.Third Citizen: And so was I: I’ll bear you company.Shakespeare: “RichardIII.”
Second Citizen: Marry, we were sent for to the justices.Third Citizen: And so was I: I’ll bear you company.Shakespeare: “RichardIII.”
Second Citizen: Marry, we were sent for to the justices.
Third Citizen: And so was I: I’ll bear you company.
Shakespeare: “RichardIII.”
The quarter sessions courts are some of the oldest criminal courts in the kingdom. Some time in the reign of EdwardIII.their quarterly sittings were ordained by statute, but long before that they were a general court of justices for the maintenance of the peace, though not sitting quarterly. Henry V. appointed them to sit in the first weeks after Michaelmas Day, the Epiphany, Easter and the Translation of St. Thomas à Becket, which is July 7. These dates are but slightly modified by modern statute.
It is curious how through the ages the clever ones of the world have gibed and jeered at justices and justices’ justice. And yet at the bottom of the heart of English folk there is a feeling of love for these old institutions, and after all—fair play to them—they work well and make no more blunders in the administration of justice than any other courts, as the statistics of Appeal Courts will testify. But when you have on the bench a large number of laymen, many invested with a power the attributesof which they do not understand, you are bound to get character and comedy, and that is what to my mind attracted the writers of various ages to the justice of the peace rather than any burning desire for legal reform.
And well it is that it has been so, for otherwise we should never have met Cousin Shallow—Robert Shallow, Esquire—“In the county of Gloster, justice of peace andcoram. Ay, cousin Slender andcust-alorum. Ay, andrato-lorumtoo.” And these allusions to-day only tickle the fancy of the antiquarians. But on their own first night every playgoer must have known the difference between a mere justice, and one of thequorum, and knew too, that the Custos Rotulorum was the principal civil officer of the county. I wager the play opened with a roar when Shallow stamped himself on his entrance as an absurd boaster who did not even know the titles of the dignities he claimed to have held. One can forgive Fielding his laughable account of Squire Western and his justiceship, which “was indeed a syllable more than justice,” for Fielding was a stipendiary magistrate, and I never met a stipendiary who had not a low opinion of the lay justices, the reason being, I suppose, as Montaigne tells us, that “few men are admired by their servants.” Dickens was a reporter, and no doubt had come across the actual justice of the peace who sat for the portrait of Mr. Nupkins, but I think he would have agreed that Sam Weller’s judgment that “there ain’t a magistrate goin’ as don’t commit himselftwice as often as he commits other people” is to be taken in a Pickwickian sense. Lay justices no doubt do commit themselves individually, but is this not true even of justices of the King’s Bench Division? For instance:—But forbear! Who am I that I should suddenly become presumptuous and self-willed and begin to speak evil of dignitaries.
And looking back quite honestly at the work done by justices at quarter and petty sessions, I think the outcry that arises over individual instances of mistake, though good as a tonic for the bench, is not a fair thing if it is the only comment that fellow citizens have to offer to the wide amount of useful and honourable work that is done by the lay magistracy.
But as a beginner at the Bar, I did not go to quarter sessions to study the interesting social problem of the value of a lay magistracy, but because it was in these courts I first attained not only the right of audience, but the thing itself. There were many sessions to attend, the most important being the sessions of the county holden at Lancaster, Preston, Salford and Kirkdale. Then there were the city sessions for Manchester and Liverpool, and borough sessions at Wigan and Bolton, the last-named being genially presided over by that good friend of the circuit, Sam Pope, Q.C. Even if you had no work when you got there, the jaunt into new surroundings and the social meeting when you arrived, and the feeling that after all you had a place in the pageant of some kind, was a pleasant relieffrom the dreariness of sitting in chambers. I suppose the racehorse who walks in after the race is over prefers being out on the heath to standing in his stall all day, and so it is with a junior barrister at quarter sessions. It is good to be in the race at all. And then as now, and I suppose as always, there was the same moaning about the want of work and the overcrowded state of the profession. But in the nature of things a profession, to be worth anything at all, must be overcrowded, the struggle for existence must be strenuously fought, many must be called and few chosen or a high standard of work will never be maintained.
There is no doubt at all that the most difficult thing to do at the Bar is to begin. For years you go round the links without a golf ball, as it were, unless you have the luck to pick one up somewhere. Gilbert’s classical receipt, namely, to fall in love with the rich attorney’s elderly, ugly daughter, is scarcely available to the married man.
I remember a disappointed cynic on the Northern Circuit, watching a third-rate encounter between two barristers of different religions, saying to me: “Parry, if I had my time over again I should start the Bar as a Jew or a Roman Catholic.” And certainly if you look among the list of those who have done well in the profession the members of these bodies are not unnumbered among the upper dogs.
Another way to success is to start with plenty of money. As Falkner Blair said of a wealthy young junior, who was keen about getting work, “What apleasant thing it would be to have £5,000 a year to buy briefs with—only why not buy something jollier?”
But money and friendly solicitors are not alone sufficient. Indeed, I have known men who were injured at the opening of their career by having briefs thrust at them which they were not equipped to deal with. Many of us, however, would have taken that risk willingly, no doubt.
If, however, you know no solicitors and belong to no community specially interested in your welfare, and have no money, the only way is to show yourself at quarter sessions in the hope that you may be discovered by some enterprising solicitor.
The quarter sessions of the city of Manchester, holden at Minshull Street, are run by the city authorities. There is a list of the members of the Bar present, and as counsel have the sole right of audience, each prisoner has to be prosecuted by counsel, and the minor cases are “souped” or given out in rotation among the junior bar. After this ceremony was over those of the juniors who had drawn blanks made off to lunch at their clubs, and were seen no more.
I found it sufficiently entertaining to sit in court and listen to Blair and Shee, and Byrne and McKeand, defending prisoners, and my first glimpses of Manchester clubs were so pleasant that I deliberately did not join any for some time, so that I should not be tempted to be away from chambers in working hours. There were generally two courtsat the Manchester Sessions, and it was not long before I was asked by some of my seniors to hold their briefs in one or another.
At that time our recorder was Henry Wyndham West, Q.C. Manchester and West had very little in common. He was a typical Whig aristocrat, born and bred in London, impartial, honest, and fearless in his administration of the law, but apparently wanting in sympathy for, and certainly lacking in knowledge of, the working class in the north of England. It is said that in 1865, when he was appointed to the Recordership, he startled a Manchester jury by some strange comments on the evidence as to the time of a theft. “Then, gentlemen, we are told that this happened at the dinner-hour. I think learned counsel for the Crown should have asked the witness to state the time more definitely, for, as we all know, the dinner-hour may mean any time in the evening between 6.30 and 8.”
West, in his day, had had a great practice in the Yorkshire West Riding Sessions in cases as to the “settlement” of paupers, but these were all dead and gone now, and, except in a few important prosecutions, he did not do much work on circuit. For some reason unknown, he and the late Lord Coleridge did not love one another. Falkner Blair used to tell a story of Lord Coleridge coming on circuit in the early days and asking him about West.
“I never see him at Westminster. What does hedo?” asked Lord Coleridge in his suavest and most silvery tongue.
“He’s Recorder of Manchester,” replied Blair.
“Ah!”
“And Attorney-General for the Duchy of Lancaster.”
“Dear me!”
“And judge of the Salford Hundred Court of Record.”
“Is he really?”
“And prosecuting counsel for the Post Office.”
“You don’t say so!” said Coleridge, throwing up his head in astonishment. “What a lot of outdoor relief the fellow has!”
West, however, certainly had his revenge in a case at Liverpool. He was defending some men for assault upon a woman. The jury had disagreed at Manchester, and Lord Coleridge, who was eager to get a conviction—probably for good reason—tried them again in Liverpool. Louis Aitken—who held a junior brief in the case with West—used to give a graphic account of the scene as one of the most polished, yet deadly encounters he had ever witnessed between Bench and Bar.
West had put up some men in the court, and asked the woman questions about them. He did not call the men as witnesses. After West had made his speech to the jury, during which there had been several skirmishes between Coleridge and himself, the Lord Chief Justice began the summing-up and West went out of court. The Chief commentedseverely upon West omitting to call the men who had been shown to the jury. Nash, one of West’s juniors, jumped up to remonstrate, but Lord Coleridge swept him aside. Aitken went out for West, who returned and made an endeavour to interrupt the judge, for which he was sternly rebuked, and the summing-up continued to the end and the jury retired. Then West, with aristocratic humility, but in the tone of a schoolmaster who is going to administer punishment at the end of the lecture, began:
“My lord, I understand your lordship commented unfavourably on my action in not calling as witnesses the men who were put up in court for identification by the prosecutrix.”
“I did, indeed, Mr. West,” replied Coleridge in his silkiest manner. “Very unfavourably; indeed, I regretted to feel compelled to make such strictures on the conduct of counsel.”
“I feel sure your lordship would, and it is with equal regret, and only because it is my duty to the prisoners and your lordship, that I must call your lordship’s attention to the case of the Queen against Holmes, reported in 1871 in the first volume of the Law Reports Crown Cases Reserved, at page 334. This case overruled the case of the Queen against Robinson, which doubtless your lordship remembers.”
“And what does the Queen against Holmes decide, Mr. West?”
“It decides that such witnesses cannot be called,”said West, handing up the volume with a grave bow. “Your lordship will find that the Court of Crown Cases Reserved had exactly the same point before them, and overruled your lordship’s learned father for the same error that your lordship has fallen into this morning.”
Coleridge did not lose his head, but replied with a charming bow and a sweet smile, “I am much indebted to you, Mr. West.”
West bowed low, and the duel was over.
Coleridge had to send for the jury and tell them his mistake, which he did, of course, amply and thoroughly, and the men were acquitted.
To my thinking West was a valuable asset to Manchester citizens, and they should have accounted it a privilege to have the constant example of a righteous aristocrat before them, if only to remind them that the Manchester ideal of men and manners is not the only ideal in the world. In nothing did these two ideals clash with greater sound and fury than in relation to commission cases, many of which came before the Court of Record. The commission sought to be recovered in that court was generally about as mean and low a commercial transaction as could be well imagined. On the sale of the goodwill of a public-house or a business some tout would get hold of seller or buyer, and if he refused to be squeezed into paying a commission there would be a speculative action.
In one of these cases relating to a public-house I was addressing the jury, and our best point, Iremember, was that up to now no one had paid a commission of any kind, and therefore it was very reasonable my client should have one. I was expatiating on this when West interrupted in his biting way:
“Is it a crime in Manchester to sell a public-house without paying a commission?”
“Not a crime,” I replied, “but exceedingly bad taste.”
The Manchester jury nodded approval.
After I had won the case West and I walked up Strangeways together. He never wore a greatcoat, and in the summer sported a white hat. I can see his upright figure striding along with hands behind his back and hear the comedy of indignation in his voice as he turns round to me and says, “I tell you what it is, Parry. If a Manchester man sold his soul to the devil, some fellow-citizens would sue his executors for a commission on the transaction.”
“Very likely,” I replied, “and, after all, there are several members of the Northern Circuit we could spare to go down and take the evidence.”
But one would give a wrong impression of West if one left it to be understood that he was an indifferent judge. He was most earnest and painstaking in the discharge of his duties, and though he never sought to gain popularity by sentimentalism, he was very ready if he felt he could honestly do so to extend clemency to youths and first offenders and to the weak who had fallen through temptation. The heavy sentences he gave to the “scuttlers”—gangsof young hooligans who used to terrorise the back streets—were the subject of much comment. But they stamped out the disease, at all events temporarily, and left the ground clear for the more permanent cures of social reformers. The scuttler of the eighties finds a more wholesome outlet for his energy to-day in the boxing competitions at the lads’ club or in the battalions of the Boy Scouts. On all occasions where West had to deal with questions having a moral and social as well as a legal aspect, his judgments were always healthy in tone and liberal and enlightened in policy. I remember well in a prize-fighting prosecution how clearly and wisely he drew the distinction, difficult to define in legal language, but easily understood in the common-sense light he threw upon it, between boxing as a wholesome and desirable sport or pastime, and prize fighting as a brutal and degrading spectacle or entertainment.
In all affairs that came before him he expressed the views of a moderate, sensible English gentleman who brought sound instincts of right and wrong to bear upon his interpretations of the law. Those who knew him personally will long remember the charm of his somewhat old-world courtesy, and recall with pleasure the wealth of his reminiscences and anecdotes of early Victorian years. And now he is gone we may openly remember his charitable deeds. Harsh and stern as he was generally accounted, some of us could have told of cases where he had personally assisted the relatives of those whom in thecourse of his duty he had been obliged to sentence to imprisonment. But had one written of these things in his lifetime, one would have forfeited his friendship, so careful was he to hide his good works before men and to leave his left hand in ignorance of the doings of the right. To those who knew the man as well as the judge, he will always remain an example of the aristocrat at his best.
The quarter sessions of the county, holden at Preston and at Salford, were, when I first went to Manchester, very thriving and busy institutions. They were both presided over by William Housman Higgin, Q.C., a Lancashire worthy of an old-fashioned type. He took great pride in the orderly administration of justice at his sessions, and conceived the Lancashire county justices to be ideal managers of county affairs. It was, indeed, generally admitted by the enemies of the system that Lancashire gained very little from the practical point of view by the institution of a county council, so excellently had the magistrates done their work. It grieved Higgin as years went on to see the new borough sessions of Oldham, Salford, Blackburn, and Burnley carved out of his district and diminishing the prestige of his most ancient jurisdiction, and he argued from a public point of view that as the leaders of the junior bar could not attend at these minor sessions, the work would never be done with its old efficiency. Be this as it may, it is certain that there is to-day no school of advocacy comparable to Higgin’s quarter sessions when they were led byShee, Falkner Blair, and Charlie McKeand in the criminal cases, and Sutton, Bradbury, and Yates in the rating and licensing appeals.
Higgin wore a beard, and his movements were greatly impeded by gout. There was, perhaps, no great outward appearance of dignity in his presence, but, sitting in court when he was on the bench, I always felt that I could realise the phrase “the majesty of the law.” Everything, however trivial, was conducted in the grand manner, and if Higgin was not without humour outside the court, within its walls he did not allow this to escape even by the twinkle of an eye.
I remember at Preston a little juryman of a fussy nature claiming to affirm instead of taking an oath. The matter was referred to Higgin, who bowed gravely and said, “By all means, let the gentleman affirm.”
This did not satisfy the little juror, who, with impudent insistence, called out in a shrill voice, “But I claim a right to affirm. I claim it as of right.”
“Oh!” said Higgin, suavely, looking down on the unfortunate little man as a dignified cat might look at a mouse. “Oh! you claim it as of right. And on what ground, may I ask?”
The little juror flushed with pleasure. Higgin was giving him the opportunity he had been looking for.
“Because I am an atheist,” he blurted out: “I do not believe in a God.”
Higgin gave him a withering look and waved him out of the box with his gouty hand, and another juror was chosen and sworn. Even then, outraged as Higgin’s feelings were, I think nothing would have happened, but the pertinacious juror jumped up and said, “I suppose I may go.”
This was too much for Higgin’s patience, and with all the solemnity at his command Higgin delivered the following sentence: “No, sir, you may not go. You are summoned here as a citizen to take part in these proceedings as a juror. If I am to believe your word—and, unfortunately, I see no reason to doubt it—the oath that has been offered to you would not be binding on your conscience, and there is no law enabling you to qualify yourself for your duties. At the same time, you have been rightly summoned here, and it is your duty to be present from the sitting of the court at nine-thirty until the court rises for the day. Go into yonder gallery,” continued Higgin, pointing up to a solitary gallery opposite the bench, “and continue there, under pain of fine and imprisonment, until the sessions are concluded, from which place it will be your privilege to watch the proceedings of twelve honest Englishmen who do believe in God.”
I think at the end of the harangue, so impressively did Higgin deliver it, that the juror expected to hear that he was “to be hanged by the neck until he was dead.” He slunk away to his lonely gallery, and Higgin never failed to make him a special bow of recognition every time he entered the court.
The sentences given by Higgin seemed to me terrible and almost brutal, but, as a matter of fact, the class of criminal dealt with is a very difficult proposition. Parliament provides no other way of keeping him out of mischief than penal servitude. If he is constantly in and out of prison he is a source of anxiety and wretchedness to his family and a dangerous nuisance to the public. Higgin’s view was that when a man insisted on living by theft, society ought to keep him out of mischief, and, though it is a rough and perhaps cruel method of doing it, the sentimentalist would probably be better employed in instituting some kinder form of asylum for the hopeless cases than in vainly clamouring for their release from prison. There is at least as much to be said for the judge who put the Dartmoor shepherd in prison as for the statesman who let him out.
Higgin had a very considerable practice in arbitrations, both as counsel and umpire or referee. He was popularly said to have killed the arbitration system in Lancashire by the length of the arbitrations and the height of his fees.
Certainly the old days of fat arbitrations, with short hours and long lunches, did not survive into my time, though I was engaged in one or two important arbitrations which I thought were fought out with businesslike dispatch. Indeed, I think a good arbitration is the very best tribunal for a business dispute, always assuming that it is the interest of everyone connected with it to get it done at reasonable speed.
In Higgin’s day, alas! it was otherwise. I remember a good story Gully once told me of a Manchester arbitration. Two business men, brothers and partners, had very serious disputes, and agreed to dissolve partnership. Under their deeds of partnership the dispute had to go to arbitration. Arbitrators were chosen on each side and Higgin was appointed umpire. The tribunal sat at the Mitre, a favourite home of Higgin, and on the first day of the case Gully appeared for the defendant and Leresche—afterwards County Stipendiary—for the plaintiff. Neither brother had spoken to the other for many weeks, and the whole dispute was rather a painful one. About 11 o’clock Higgin arrived, and having greeted everyone with friendly but dilatory courtesy, opened a few letters which his clerk had brought, and replied to them after obtaining leave of counsel to do so.
Mine host then brought in the menu, and general consultation as to lunch took place. The hour was fixed at 1.30, the hot-pot ordered, and the brand of wine decided upon. The two brothers glared at each other during these strange proceedings with the uneasy feeling that this was to be a funeral feast and they were the corpse. To their rough Lancashire minds it had somewhat that appearance. And now it was nearing 12, and Leresche proceeded to open the case. Leresche was not a man of few words at any time, and his methods of obtaining full value out of an arbitration were expensive and peculiar. He started off by reading someScots deeds. They were deeds, he said, referred to in the partnership deed, and were deeds of trust and settlements and wills showing for some generations where the partnership moneys had come from. Gully protested that these were not relevant, but Higgin gravely shook his head and said he never interfered with counsel in his opening, and away sped Leresche through a bewildering maze of incomprehensible Scots law, continuing each deed to the end of its jargon, and then folding it up and placing it reverently in the middle of the table in front of Higgin. There was a leisurely and social lunch, all enjoying themselves except the two brothers, who sat silent in sulky gloom. Leresche, duly refreshed, went at the deeds again until about half-past three, when he suggested an adjournment.
“For now,” he said, putting his hand on the goodly pile before him, “I have read every deed, and, subject to what you may say, sir, and what my friend, Mr. Gully, may have to say, I really cannot, for my part, see why it should be necessary during the course of the arbitration to refer to these deeds again.”
“I cannot see how it would assist us,” said Higgin, gravely, “unless Mr. Gully——”
Gully assured him he never wanted to see or hear of the deeds again.
“Very well, then, Mr. Leresche, about to-morrow? Eleven o’clock?”
“Yes, sir,” replied Leresche, “and then I hope to begin to open the business part of my case.”
“By all means,” said Higgin, “eleven o’clock, gentlemen.”
As the two brothers were going downstairs the elder tapped the junior on the shoulder.
“Come and have a whisky with me, Donald.”
“I will, Ronald.”
“I tell you what it is, Donald. We’re being had on a bit here.”
“I’m thinking the same, Ronald.”
They retired into the snug bar, and spent a friendly hour together. The next morning at eleven all met except Ronald and Donald. Their solicitors with blank faces produced letters from their clients that the litigation was over, and would they each send in their bills.
“Ah!” said Higgin, smiling pleasantly at the disconsolate Leresche. “To hear you read those Scots deeds would take the fight out of the most litigious. I ought to have stopped you. But, never mind, we have one consolation. Blessed are the peacemakers.”
And though both West the aristocrat and the Whig and Higgin the stern, unbending Tory were both sound judges, kind-hearted men and honest, upright, conscientious administrators of the law, yet it is easy to see that their usefulness was limited by their education and environment, and that it would be untruthful to deny that in all human beings—in judges no less than in smaller men—there is a class bias drawing their minds to certain conclusions and points of view. And no one cancertainly blame those whose bringing up has been less fortunate and whose University has been the factory or the pit, from recognising very clearly that the judicial mind does not readily coincide with the views and thoughts and aspirations of their own class. And this must remain so as long as the official places in the law are the appanage of the upper and middle classes.
I have often wondered why more of the clever younger men of the working class do not grapple with the study of the law. A few years ago I addressed a labour audience in Manchester on this subject and listened to an interesting firsthand discussion of the matter. Although not expressed in so many words, I think there was an idea at the back of many speakers’ minds that an individual selected to be educated and equipped for the profession would in the end break away from service to his order and seek to make good a great individual career. But I am not sure that this would of necessity be the case. I cannot imagine, for instance, that Charles Bradlaugh if he had been at the Bar would have utilised his sound and ingenious legal mind merely in the making of money. And the experiment should certainly be tried in the interests of the whole community, for the Labour Party will never be able to express its thoughts articulately and clearly until it has its own Attorney-General who can advise its Cabinet onthe legal aspects of the measures they have to consider.
And one reason why I should not like to see the ancient lay office of Justice of the Peace abolished is because there and there alone men of the working class are brought on to the bench as actual ministers of the law. No doubt as time goes on and education advances we shall find the circle widening out. There should be far more working men sitting on juries, and paid for their services, there should be more representatives of all branches of trades and industries sitting on the bench and taking part in quarter sessions, and the amalgamation of both branches of the profession would, I feel sure, lead to less class origin in judicial appointments.
But looking at the administration of the law in this country in comparison with others, I cannot but think that the court of quarter sessions—especially the larger county sessions, where the lay element is strongly represented upon the bench—is a court wherein an innocent man desiring an honest verdict may take his trial with a real sense of security. And though no sane and reasonable citizen doubts the honest administration of the law in our country, yet perhaps words have fallen of late years from the lips of those in high places not unnaturally misunderstood in the lower places where they fell. For there are judges who make little effort to put themselves in the place of the poor folk whose affairs they are dealing with, and forgetto obey the fifth law of Nature according to the statute of Thomas Hobbes of Malmesbury. And “the fifth law of Nature is Compleasance; that is to say, that every man strive to accommodate himself to the rest.” Or as St. Paul wrote to the Galatians—but you remember that.