CHAPTERVIIIJUDGES OF YESTERDAY“You did, sir,” replied the judge with a severe frown. “How could I have got Daniel on my notes unless you told me so, sir?”Dickens: “The Posthumous Papers of the Pickwick Club.”Peter considered those bad bold ones who spoke evil of dignities were merely “presumptuous,” but I am on the side of Jude, who roundly assessed them to be “filthy dreamers.” Happily, to an Englishman, evil speaking of judges is impossible. Indeed, the English attitude of mind towards the Bench, if one can conceive the English mind capable of finding itself in an incorrect attitude, has a tendency towards idolatry. The infallibility of the Pope we smile at as a superstition, but the infallibility of the Court of Appeal is an article of faith upon which we issue execution, unless, of course, it is surpassed and overruled by the more infallible infallibility of the House of Lords. Only the will of the people and the great inquest of the nation can alter a decision of the House of Lords, unless there happens to be a Government in office with a will of its own and the capacity to act upon it—and you never know what may occur some day. And really we so love and worship our judges that when we tell stories oftheir quaint humours we do so much as a good Italian Catholic will scold his patron saint or tell some anecdote of the holy ones more lively than respectful. For we know that judges are only human, and we have seen many grow froward from age, their faculties become dim, their qualities rust, until at length they lose the one essential attribute of judicality, they are no longer able to suffer fools gladly, and the public and the Bar become uneasy of their continuance. And, on the other hand, what patience and loving-kindness are shown by the advocate towards the judge. No hours are too long, no time is misspent in preventing him from error, or leading him thereto, as the case may be. I love to hear that phrase trundled out with unblushing sycophancy, “Your lordship will remember the case of Crocks and the Wapping Corporation, in fourteen ‘Meeson and Welsby.’” Every one in court—except perhaps some loafer in the gallery—knows that his lordship never heard of the case before, and if he had would have forgotten it. Indeed, the learned Counsel himself only had it shoved into his hand an hour ago by little Smithson, who devils for him, and it was I who met the disconsolate little man in the Middle Temple Library and told him—but that is outside the frame of the picture. You have the whole subject-matter set out in one phrase “Contempt of Court.” This is a feeling that must be closeted strictly within the heart—otherwise seven days.I remember an irate Scotch draper saying quiteseriously to me at the end of a case, “I have an utter contempt for this court.”“My good man,” I said thankfully, “you have saved me from a most painful duty. Had you expressed a mere contempt of court I must have sent you to Knutsford Gaol, but an utter contempt seems to me to save you. But do not say it again, I may be wrong. Go outside as quickly as you can.”He disappeared. Had I been a Plowden I should have added “and utter contempt there.” But I only thought of that going home in the tram.And when I think of the judges of yesterday I think first of all of the great and honest services they rendered to the State, and then I recall them through some quaint story, or maybe some trick of speech or manner, just as you may remember a great cathedral both as a mighty and noble building and as the edifice from which sprang some grotesque gargoyle whose humours have always haunted you when the name of the building was sounded.Of the many judges that came the Northern Circuit during my short career at the Bar some few are still, I am glad to say, judges of to-day, and several have but recently passed away. And the figure that is perhaps in the foreground of my memory is that of Mr. Justice Grantham, who, less than a year ago, vigorous and popular as ever, celebrated his silver anniversary on the circuit. I was present at the banquet given to him by the circuit, and as he stood before us, four-square to thewinds of criticism and popular—or perhaps I should say unpopular—disapproval, what human sympathy and enthusiasm rang out in our cheers. We knew him only as a hard-working, conscientious judge, as a clean, honest man, and as thatrara avis, a south country man who understood and admired the bracing atmosphere of the north. He told us how, when he was junior judge and the circuits were chosen, that every circuit was taken by his seniors except that containing Manchester and Liverpool, for which he had to start out with the condolences of his brethren. Now when he was senior judge he had the first choice, and despite his years he came back to Liverpool and Manchester because he liked the straight, manly business methods in which the work of the Northern Circuit is done. And what he said was no mere after-dinner compliment, it was as honest and true as the cheers of those who welcomed him back. I have seen Grantham at his very worst sitting on the bench, trying a political libel action; I have seen Grantham at his very best standing in an old Sussex wagon and judging a Bar point-to-point steeple-chase, and I have seen him presiding as judge in many different cases with varying success, but I have never seen him do anything but what he believed to be the only straight, honest thing to do. That is why he was so exasperating and lovable. He not only had strong, simple English ideals, but he acted up to them in open daylight. Any man of his ability and without his sincerity could have steered a safer and easier course. Grantham couldonly steer the straight course—once his course was set, he followed it with dogged fidelity. Small wonder, therefore, that sometimes he ran on the rocks. But when he did he bore no malice to the rocks—indeed, so optimistic and full of good humour was he that he scarcely knew that there had been a collision.A little while ago Grantham made a speech to the Liverpool grand jury which attracted much attention. A few days afterwards I was present at the banquet given to the judges at the Town Hall, and the Lord Mayor of Liverpool called upon me to propose the toast of the grand jury. There were no reporters at these festivities, so it was not inconvenient to make some humorous remarks at the learned judge’s expense—if one dared. I recall the shudder of aldermanic apprehension when I started, and its quick change to purple laughter when it was seen that Grantham was thoroughly enjoying it all. I remember as we left the banqueting hall his friendly pat on the shoulder and his kindly laugh as he said, “Very good fun, Parry! Just like old times! But I was quite right, wasn’t I?” And there you had the man at his best. There was no meanness or littleness about him. He was honest, simple, outspoken, cocksure, keen to do right and English to the backbone. There was no policy or finesse in anything that he did, and he was out for work and business. That is why he was so welcome and beloved on the Northern Circuit.But his slackness in finesse often cost him tricksin the Court of Appeal. Here is an example of what I mean.I appeared for a small carpenter whose shop had been injured by the pulling down of adjoining buildings to clear the site of a new infirmary. The defendants were trustees of the institution. The claim was £175 11s.2d.—or some such figures—and I got a verdict for every pound, shilling, and penny, in spite of Gully’s eloquence.Grantham started his summing-up as follows—I quote, of course, from memory:—“Gentlemen of the jury, if you are as heartily glad as I am that this is the last case at the Manchester Assizes, and that, after this, we shall be able to get away into pleasanter surroundings, you will not be long in doing substantial justice to the plaintiff.”I shall never forget how strange the words sounded in the cold, grey light of the Court of Appeal, and how Lord Esher roared out an encore to Gully when he read them to the Court. We did not keep that verdict. Smyly, Q.C., led me, and Esher, in one of his wild humours, romped round the court with him in playful savagery. One gem of Grantham’s was in reference to Gully’s defence: “Then, gentlemen of the jury, Mr. Parry is told he should have sued the contractors instead of the trustees, and the contractors would have said ‘sue the foreman,’ and the foreman would have said ‘sue the hodman,’ and so it would have been like the house that Jack built.”“Which house is that, Mr. Smyly?” said Lord Esher.“Really, my lord——”“Is it on either of the plans you have put in?” continued the Master of the Rolls, waving them about impatiently.Bowen smiled like a benignant Cheshire cat.“I am not certain,” continued Smyly, cautiously, “that the house in question is in any way connected with the case.”“It must be,” said Esher, “or why did Mr. Justice Grantham tell the jury about it.”I was tugging away at Smyly’s gown, and he turned round and asked what on earth the house that Jack built was all about.“A nursery rhyme. Don’t you know it? This is the house that Jack built. This is the malt——’”“Oh, of course,” interrupted Smyly, turning round to the Court with great seriousness. “I have consulted my learned junior, and he agrees with me that the house that Jack built is not set out on the plans, and that the house referred to by the learned judge is in the nature of a literary allusion.”Lord Esher laughed loud and long, and Bowen’s smile broadened even more benignantly. The appeal was lost, and we went to the House of Lords with no success. Lord Hannen shook his head at me sympathetically, saying, “Of two evils, I had rather have a judge dead against me than strongly in my favour.”Lord Justice Vaughan Williams, who is now a pillar of the Court of Appeal, used to come on circuit a great deal. He began as a Commissioner, and westood greatly in awe of him, for he was a very learned lawyer, and rather insisted on things being done in legal decency and order. Some of the business short cuts of the Northern Circuit he did not appreciate.I remember winning an important bankruptcy case before Judge Heywood in Manchester. On appeal we came before Vaughan Williams and R.S. Wright, J.J. The other side had Sir Robert Finlay, Q.C., and Yate Lee, afterwards the Stockport judge, a great bankruptcy expert. Sir Horace Davey, Q.C., was to lead me. The case came on in the morning, and Sir Horace Davey was down at the House of Lords. Finlay, seeing his advantage, opened the case in twenty minutes as an obvious mistake in the court below, and Yate Lee said nothing. I was called on to hold the fort against a hostile court until reinforcements in the shape of Sir Horace Davey arrived. I had several cases to quote, but the judges would not have them at any price, and Vaughan Williams kept putting wonderful legal conundrums to me, which I tried to answer or evade as seemed the safer course at the moment.When Davey came in about half-past three, I think I had won Wright over to see there was something in the points I had raised. Davey told me to sit down, and he started at once. In his thinnest, most arid, and contemptuous tones he explained to the judges that it really did not matter which way they decided, because the case would have to go to the Court of Appeal. Still, it was a more convenientthing that their lordships should decide rightly, or, in other words for him, in accordance with the authorities.It is a great and rare gift to be able to talk like that to High Court judges, but I felt we were seeking trouble. Vaughan Williams listened for a while, then looked sternly at Davey, and began very quietly:“Sir Horace, I have put a proposition to your learned junior which he is utterly unable to answer, and it is this——”The proposition was put.Davey heard him with theatrical impatience and weariness, and replied:“My lord, I can understand my learned junior not replying to your lordship’s proposition. Your lordship’s proposition has nothing whatever to do with this case. As I was saying when your lordship interrupted me,”&c.Of course we lost that appeal. The two judges laughed Judge Heywood’s decision out of court, and a few weeks afterwards the Court of Appeal restored Judge Heywood’s decision, with appropriate astonishment at the reasoning of the Divisional Court. Such is the glorious uncertainty of the law.Mr. Justice Hawkins was often on circuit in the earlier days. In the Crown Court he was painstaking, but in the Civil Court anything like figures or business details he found irksome. In one business case, counsel began discussing the question of the fall of 1-16d.in the price of yarn, when Hawkins indignantlyinterrupted him by asking whether the time of her Majesty’s judges was to be spent in dealing with fractions of the smallest coin of the realm. Finding that in the result it came to a goodly sum, he referred the case, and spent the rest of the day elucidating a slander action, which resulted in a verdict for another fraction of a penny.Mr. Justice Cave very often visited the Northern Circuit. He was a stout, heavy, round-faced man, spoke with a nasal twang, and occasionally slept on the bench, but in spite of his peculiarities he was a straightforward, useful lawyer, and a not unkindly judge. He treated the junior Bar with good-humoured toleration, but I cannot say he suffered them gladly. Louis Aitken, who was the most scrupulous prosecutor on circuit, was one day prosecuting a thief before Cave at Lancaster, and finding that a statement of a policeman on the depositions was made in the absence of the prisoner, and therefore not evidence, properly and carefully omitted it. Cave, who was following the depositions with his thumb and a blue pencil, pulled him up:“Ow now. Ow now, Mr. Aitken,” he said, in his snarling voice. “This won’t do, you know. You’re garbling the evidence. That’s what you’re doing, garbling the evidence.”Aitken was too stunned to say anything, and Cave took the policeman through the whole statement. When he had finished, he snapped out: “Any other questions, Mr. Aitken?”“Only this, my lord,” said Aitken, who had recovered his equanimity. “Was the prisoner present during that conversation?”“No,” replied the officer.“Ow,” grumbled Cave, as he took his blue pencil and scored it out of his notes. “Remember, gentlemen of the jury, to forget all that. It’s not evidence. Go on, Mr. Aitken.”A few days after Aitken was dining with the judges, and Cave nodded across the table to him and said, “Lucky we spotted that evidence point at Lancaster, Mr. Aitken.”I remember, too, in a small libel case the perfect sang-froid with which he transferred the blame of his proceedings on to the shoulders of Lancaster Woodburne, one of our most serious juniors who had something of the south country style. On a hot summer afternoon Woodburne had opened a very unimportant case in a highly impassioned speech, and when he had finished was horrified to find that Cave really was fast asleep. We had often seen him make the attempt, but this was the full offence. The weather and the luncheon hour were accessories before the fact.“What on earth shall I do?” he muttered to me. I suggested he should call a witness, but Woodburne objected that the judge would not hear his evidence. As I was on the other side this did not seem to me to be very material. The judge’s clerk was out of court, the Associate, well knowing the state of affairs, was busily writing below the bench withhis eyes glued on to his papers. The jury, indeed, were smiling broadly. There was no doubt that it was a painful moment for Lancaster Woodburne. Suddenly a pile of books near my elbow upset on the floor. Cave opened his eyes and shouted angrily at my opponent:“Now then, Mr. Woodburne, why are you wasting the time of the Court? Are you going to call a witness, or am I to sit here all day doing nothing?”How different again in manner and manhood was Mr. Justice A. L. Smith. We were all glad to hear that he was coming the circuit. “A. L.,” as he was affectionately called, had a strong, breezy business manner of doing his work that suited Manchester admirably.Sir Charles Russell once said to a new County Court judge, “Better to be strong and wrong than weak and right.” It is a counsel of perfection to all judges of first instance. “A. L.” understood the idea and acted upon it, and went one better by being seldom wrong. The main reason of his popularity and success as a judge was that he knew his own mind and was always ready to take responsibility promptly.One of my earliest recollections of “A. L.” was in 1887, when a man named Thomas Leatherbarrow was put in the dock and charged with the murder of a woman. The prisoner had been very violent in the police court, and the chief witness against him was another woman he had tried to kill. He came into the dock, a powerful giant, surrounded by three or four warders. He lurched forward to the rails andgazed wildly round the court like a savage animal looking for prey.Mr. Shuttleworth, the Clerk of Assize, read the indictment.“Guilty,” growled the prisoner.“Do you understand what you are pleading guilty to?” asked Mr. Shuttleworth.“Yes, I understand.”“It means killing intentionally.”“Yes,” said the man with a burst of passion, “and I would have killed the other, too, if I could have got at her.”“Have you anything to say?” asked the Clerk of Assize.“Not a word,” answered the prisoner carelessly.“A. L.,” who had been thoughtfully watching the scene, assumed the black cap and passed sentence without comment.The prisoner nodded to him, picked up his cloth cap from a chair, and said, “Thank you, sir.”“A. L.” and the prisoner were perhaps the only two men who at the moment were clear and contented that the right thing had been done.But it was in the County Courts that one learned one’s first lessons, and as more and more those courts are becoming the elementary schools of advocacy it becomes increasingly important that the judges who preside should have had some sound experience in the business themselves. We youngsters in Manchester were greatly to be congratulated on the presence of Judge Russell, the learned authorof a well-known treatise on Mercantile Law, who presided in the Manchester County Court. Russell sifted out his advocates very rapidly. At first when you knew little or nothing about it he did the case more or less for you. If he found you had any initiative capacity at all he allowed you to flutter your wings on your own. But if you tried to soar to absurd heights he non-suited you on the wing, as it were, to prevent more serious accidents in the course of your aviation; indeed, he was if anything too fond of the non-suit, regarding it as a very present help in time of trouble. But though somewhat strict in technical matters, he was a good lawyer and a useful judge for a junior to practise before. If you could do your work to his satisfaction you need not fear making your bow in the High Court. He was an autocrat, but his autocracy was beneficial to business and justice. Anything like trickiness or ill-faith was abhorrent to him. On one occasion a very learned but rather artful counsel read a correspondence to him and omitted a damaging letter, hoping, no doubt, to deal with it later on. When the letter came out Russell looked very black.“Is that letter in your bundle of correspondence, Mr. X.?” he asked.“Yes, your Honour—and I was going——”“Were going——” repeated Russell sarcastically. “Judgment for defendant.”It is wonderful how easily a good or bad reputation is made, and how careful the young advocate should be to keep his shield unspotted. I rememberhaving a very bad class of insurance claim which was tried before Lord Coleridge. Some Blackburn people had insured an old gentleman, described as an egg merchant, who died very shortly afterwards. It appeared that the deceased’s employment in recent years had been leaning against the door of a public-house and falling in when it opened. He had not merchanted any eggs since 1862. These things and the rascality of the whole proceeding, which was little short of a conspiracy to defraud, became so apparent as the case went on that at last I said I could not believe in the truth of my evidence, and refusing to call any more witnesses told Lord Coleridge my reasons, and retired from the case.Lord Coleridge smiled somewhat sarcastically, as I thought, saying, “A very candid expression of opinion about your clients, Mr. Parry, and I have no doubt the jury will agree with you.”A few weeks later I was supporting a counterclaim in a weary, complicated case at Liverpool, the last in the list before Coleridge, without a jury. I felt sure that if he would adjourn to the next day I could make him see there was something in it. Addison, who was for the other side, ridiculed it, and I quite thought Coleridge would cut it short and run up to town. About 6 o’clock, however, Coleridge said, “I haven’t the least idea what Mr. Parry’s counterclaim is about, and you think it is all nonsense, Mr. Addison; but I am sure he believes in it, and, as I know he wouldn’t continue a case unnecessarily, I shall adjourn.” We had the bestpart of next day at the details, and my client got a substantial verdict.Judge Hughes, when he was appointed, was expected to do wonderful things, and so, in truth, he did, but the authorship of “Tom Brown’s Schooldays” was not a particularly good apprenticeship for the rough and tumble of the County Court, and his short cuts to ideal justice were seldom successful. One of his earliest exploits, when asked to decide who had won a race and was entitled to the prize, was to order it to be run again, with himself as referee! Apart from the judgment being without legal sanction, the point at issue was not who could win, but who had won the race. On another occasion, during the trial of the disputed ownership of a dog, the animal came into court, and the learned judge had him up on the bench. He then ordered the defendant to go to the other side of the court and call the dog. This the defendant did, and the dog came to him. Immediately judgment was given for the defendant, but the plaintiff complained that he had not been allowed a similar experiment, which very likely would have resulted in a similar way.Chancery law was supposed to be a speciality with Judge Hughes, but I doubt if he had any real grip of any kind of legal principles. For instance, Byrne and I had a case before him in which a lady claimed specific performance of an agreement. It was a home-made agreement about the transfer of furniture, and it contained, among other things, a promise tomarry. Judge Hughes in his kind-hearted, impulsive way espoused the lady’s cause most warmly. “Why did my client refuse to marry the lady? It was abominable conduct.” For the defendant I tried to urge legal difficulties about decreeing specific performance to marry, but Judge Hughes only shook his head indignantly and kept muttering to himself, “I shall see that agreement carried out—every line of it! Every line of it!”During the adjournment I chaffed Byrne about his agreement—of course, he had not drawn it—and asked him how the judge was going to carry out his order to compel my client to marry. Both our clients were very obstinate, but in the end Byrne and I made a full and fair settlement of all matters in dispute, though I shall always believe that my client was the more easy to deal with, because he believed that Judge Hughes intended to have him locked up, and only released when he consented to go quietly to the altar. When we returned into court and announced the settlement the learned judge was very vexed with Byrne, and waved us away, saying, “I wasn’t frightened at Mr. Parry’s law, and you needn’t have been. I’d have had that agreement carried out—every line of it! Every line of it!”As a Druid under an oak tree or on some island far from the Court of Appeal, Judge Hughes would have administered his own equity to perfection, and the suitors would have had an honest, righteous and sporting tribunal. But the administering of lawsmade by others was altogether beyond his imagination. He was stone deaf to common law, and his equity dated back to a period before the discovery of the tree of knowledge of good and evil.Coventry, the judge of the Blackpool Circuit, was a different type of man altogether. Silent, reserved, and patient, he listened at too great length to both advocacy and evidence, but his decision when it came was sound in judgment and of few words. Charles Costeker, of Darwen, who loved a sporting litigation, once instructed me to defend a most unusual case before Coventry in the Blackburn County Court. The defendants were the vicar and churchwardens of a Darwen church. It appeared the plaintiff had taken a dislike to hearing the curate preach, and used to walk out in order to avoid doing so. This insult to the curate the churchwardens resolved to avenge, and one Sunday morning, when the plaintiff tried to leave the church as usual, they locked the door and sat near it and prevented him going out. He, therefore, sued them for damages for false imprisonment. The vicar knew nothing about it, but as far as the churchwardens were concerned, there was really no answer, though I discovered a canon of the Church that makes it one’s duty to stay and diligently hear the sermon. Coventry, however, was not having anything to do with such an obscure affair as canon law, and the common law was clearly against us. I am afraid the judge, who was of Quaker origin, and some of the advocates were woefully at sea over the details of the Church service,and an old Lancashire verger amused us greatly with one of his replies to Coventry. He was asked when he first noticed the plaintiff come into the church.“It was during Venaite!” he replied.“How long after the service began?” asked Coventry.“It was during Venaite,” he replied.“I don’t want to know anything about the Venite,” said Coventry, who hadn’t an idea of its liturgical position. “What I want to know is was it ten minutes after the service began, or when?”“It was during Venaite.”“I don’t understand what you mean by that,” said Coventry, putting down his pen in despair. The verger thought the word Venite was puzzling the learned judge, and with great friendliness and a pleased smile of superiority turned round and said to him, “I’ll tell yer about Venaite. It’s like what you an’ me if we were talking to ourselves ’ud say: ‘O coom, let’s sing to the Loord.’”Crompton Hutton, a very learned man of a curious, cantankerous character, held sway over the Bolton and Bury district. He had had a large practice in London as a junior, and though his methods were irregular they did not lack common sense. He never wore robes, and I was told it was an offence to appear in his court in robes. The first time I went before him was at Bury, where he sat in a club-room adjoining the court. I was very frightened, and he glared at me in a way that did not make me lessnervous. I and the solicitor against me, Mr. Anderton, sat on each side of him at a long table with the fire opposite the judge. I found out afterwards that if you could get one of your opponent’s witnesses to stand between Crompton Hutton and the fire he was dismissed the room, and his evidence was never heard. I did not know these and other rules of the court then. The judge pointed to a seat, and I sat down.“What’s your name?” he asked.“Parry,” I replied.“What does he say his name is, Mr. Anderton?” he asked my opponent, turning his back on me.“Mr. Parry,” replied Anderton.“H’m. How do you spell it. I never heard such a name,” he grumbled.This made me very angry, and I retorted, in much the same tone: “Of course you’ve heard it constantly. I’ve seen your name in the law reports with my father’s, Serjeant Parry, many a time.”Crompton Hutton rose in his chair and spread out his arms as though he was going to hug me.“What, are you a son of the dear old Serjeant? Really, now. And what are you doing in these God-forsaken parts? Sit down. Delighted.” And he wrung me by the hand in the most friendly fashion.The case was about a milk float and a lurry. I was for the lurry, and we won, mainly, as far as I remember, because an imaginative office boy of Anderton’s had drawn his client’s milk float gallopingup the road on the wrong side of the way with the driver waving his whip, and Crompton Hutton regarded it as a conclusive admission of facts.Anderton was a big, heavy, red-faced man of the elder Weller type, and quite as kind-hearted and straightforward. As we walked across to the Derby Arms for some lunch when the case was over:—“I tell you what it is,” he said to me, “you’ll do very well with Crumpy, but you’ll have to do what he tells you.”“About what?” I asked.“About wearing that toggery. He won’t stand it.”However, he had to stand it, and, fair play to him, though he used to tease me about it, we never quarrelled over it. I went before him often, and much pleased him by persuading the Divisional Court to uphold him on appeal in a building case.I became quite a favourite of his, and he would always take a case of mine first when he could. I remember once two Chancery men with long affidavits and witnesses to cross-examine were ahead of me, and Crompton Hutton as soon as they were seated turned round to the defendant’s counsel and said, “Call your client.”“Call my client?” said the astonished advocate. “I want to cross-examine the plaintiff’s witnesses first.”“I know you do,” said the judge with a sneer, “but we don’t waste time that way here. You willbe asking for further consideration next, but you won’t get it here.”“But I’m entitled to——”“Certainly, but not at other people’s expense. Now, Mr. Parry.”And the Chancery protests were unavailing. I got heard and sent away.I just caught the beginning of the Chancery case. The defendant’s counsel was again asked to put the defendant in the box, and refused.“And I’ll tell you why,” said Crompton Hutton. “I’ve read those affidavits, and unless the defendant swears the necessary additional facts you’ve no case, and if he swears the necessary additional facts I’ll commit him for trial for perjury. That’s all!”There was a lot of common sense about Crompton Hutton.
“You did, sir,” replied the judge with a severe frown. “How could I have got Daniel on my notes unless you told me so, sir?”
Dickens: “The Posthumous Papers of the Pickwick Club.”
Peter considered those bad bold ones who spoke evil of dignities were merely “presumptuous,” but I am on the side of Jude, who roundly assessed them to be “filthy dreamers.” Happily, to an Englishman, evil speaking of judges is impossible. Indeed, the English attitude of mind towards the Bench, if one can conceive the English mind capable of finding itself in an incorrect attitude, has a tendency towards idolatry. The infallibility of the Pope we smile at as a superstition, but the infallibility of the Court of Appeal is an article of faith upon which we issue execution, unless, of course, it is surpassed and overruled by the more infallible infallibility of the House of Lords. Only the will of the people and the great inquest of the nation can alter a decision of the House of Lords, unless there happens to be a Government in office with a will of its own and the capacity to act upon it—and you never know what may occur some day. And really we so love and worship our judges that when we tell stories oftheir quaint humours we do so much as a good Italian Catholic will scold his patron saint or tell some anecdote of the holy ones more lively than respectful. For we know that judges are only human, and we have seen many grow froward from age, their faculties become dim, their qualities rust, until at length they lose the one essential attribute of judicality, they are no longer able to suffer fools gladly, and the public and the Bar become uneasy of their continuance. And, on the other hand, what patience and loving-kindness are shown by the advocate towards the judge. No hours are too long, no time is misspent in preventing him from error, or leading him thereto, as the case may be. I love to hear that phrase trundled out with unblushing sycophancy, “Your lordship will remember the case of Crocks and the Wapping Corporation, in fourteen ‘Meeson and Welsby.’” Every one in court—except perhaps some loafer in the gallery—knows that his lordship never heard of the case before, and if he had would have forgotten it. Indeed, the learned Counsel himself only had it shoved into his hand an hour ago by little Smithson, who devils for him, and it was I who met the disconsolate little man in the Middle Temple Library and told him—but that is outside the frame of the picture. You have the whole subject-matter set out in one phrase “Contempt of Court.” This is a feeling that must be closeted strictly within the heart—otherwise seven days.
I remember an irate Scotch draper saying quiteseriously to me at the end of a case, “I have an utter contempt for this court.”
“My good man,” I said thankfully, “you have saved me from a most painful duty. Had you expressed a mere contempt of court I must have sent you to Knutsford Gaol, but an utter contempt seems to me to save you. But do not say it again, I may be wrong. Go outside as quickly as you can.”
He disappeared. Had I been a Plowden I should have added “and utter contempt there.” But I only thought of that going home in the tram.
And when I think of the judges of yesterday I think first of all of the great and honest services they rendered to the State, and then I recall them through some quaint story, or maybe some trick of speech or manner, just as you may remember a great cathedral both as a mighty and noble building and as the edifice from which sprang some grotesque gargoyle whose humours have always haunted you when the name of the building was sounded.
Of the many judges that came the Northern Circuit during my short career at the Bar some few are still, I am glad to say, judges of to-day, and several have but recently passed away. And the figure that is perhaps in the foreground of my memory is that of Mr. Justice Grantham, who, less than a year ago, vigorous and popular as ever, celebrated his silver anniversary on the circuit. I was present at the banquet given to him by the circuit, and as he stood before us, four-square to thewinds of criticism and popular—or perhaps I should say unpopular—disapproval, what human sympathy and enthusiasm rang out in our cheers. We knew him only as a hard-working, conscientious judge, as a clean, honest man, and as thatrara avis, a south country man who understood and admired the bracing atmosphere of the north. He told us how, when he was junior judge and the circuits were chosen, that every circuit was taken by his seniors except that containing Manchester and Liverpool, for which he had to start out with the condolences of his brethren. Now when he was senior judge he had the first choice, and despite his years he came back to Liverpool and Manchester because he liked the straight, manly business methods in which the work of the Northern Circuit is done. And what he said was no mere after-dinner compliment, it was as honest and true as the cheers of those who welcomed him back. I have seen Grantham at his very worst sitting on the bench, trying a political libel action; I have seen Grantham at his very best standing in an old Sussex wagon and judging a Bar point-to-point steeple-chase, and I have seen him presiding as judge in many different cases with varying success, but I have never seen him do anything but what he believed to be the only straight, honest thing to do. That is why he was so exasperating and lovable. He not only had strong, simple English ideals, but he acted up to them in open daylight. Any man of his ability and without his sincerity could have steered a safer and easier course. Grantham couldonly steer the straight course—once his course was set, he followed it with dogged fidelity. Small wonder, therefore, that sometimes he ran on the rocks. But when he did he bore no malice to the rocks—indeed, so optimistic and full of good humour was he that he scarcely knew that there had been a collision.
A little while ago Grantham made a speech to the Liverpool grand jury which attracted much attention. A few days afterwards I was present at the banquet given to the judges at the Town Hall, and the Lord Mayor of Liverpool called upon me to propose the toast of the grand jury. There were no reporters at these festivities, so it was not inconvenient to make some humorous remarks at the learned judge’s expense—if one dared. I recall the shudder of aldermanic apprehension when I started, and its quick change to purple laughter when it was seen that Grantham was thoroughly enjoying it all. I remember as we left the banqueting hall his friendly pat on the shoulder and his kindly laugh as he said, “Very good fun, Parry! Just like old times! But I was quite right, wasn’t I?” And there you had the man at his best. There was no meanness or littleness about him. He was honest, simple, outspoken, cocksure, keen to do right and English to the backbone. There was no policy or finesse in anything that he did, and he was out for work and business. That is why he was so welcome and beloved on the Northern Circuit.
But his slackness in finesse often cost him tricksin the Court of Appeal. Here is an example of what I mean.
I appeared for a small carpenter whose shop had been injured by the pulling down of adjoining buildings to clear the site of a new infirmary. The defendants were trustees of the institution. The claim was £175 11s.2d.—or some such figures—and I got a verdict for every pound, shilling, and penny, in spite of Gully’s eloquence.
Grantham started his summing-up as follows—I quote, of course, from memory:—
“Gentlemen of the jury, if you are as heartily glad as I am that this is the last case at the Manchester Assizes, and that, after this, we shall be able to get away into pleasanter surroundings, you will not be long in doing substantial justice to the plaintiff.”
I shall never forget how strange the words sounded in the cold, grey light of the Court of Appeal, and how Lord Esher roared out an encore to Gully when he read them to the Court. We did not keep that verdict. Smyly, Q.C., led me, and Esher, in one of his wild humours, romped round the court with him in playful savagery. One gem of Grantham’s was in reference to Gully’s defence: “Then, gentlemen of the jury, Mr. Parry is told he should have sued the contractors instead of the trustees, and the contractors would have said ‘sue the foreman,’ and the foreman would have said ‘sue the hodman,’ and so it would have been like the house that Jack built.”
“Which house is that, Mr. Smyly?” said Lord Esher.
“Really, my lord——”
“Is it on either of the plans you have put in?” continued the Master of the Rolls, waving them about impatiently.
Bowen smiled like a benignant Cheshire cat.
“I am not certain,” continued Smyly, cautiously, “that the house in question is in any way connected with the case.”
“It must be,” said Esher, “or why did Mr. Justice Grantham tell the jury about it.”
I was tugging away at Smyly’s gown, and he turned round and asked what on earth the house that Jack built was all about.
“A nursery rhyme. Don’t you know it? This is the house that Jack built. This is the malt——’”
“Oh, of course,” interrupted Smyly, turning round to the Court with great seriousness. “I have consulted my learned junior, and he agrees with me that the house that Jack built is not set out on the plans, and that the house referred to by the learned judge is in the nature of a literary allusion.”
Lord Esher laughed loud and long, and Bowen’s smile broadened even more benignantly. The appeal was lost, and we went to the House of Lords with no success. Lord Hannen shook his head at me sympathetically, saying, “Of two evils, I had rather have a judge dead against me than strongly in my favour.”
Lord Justice Vaughan Williams, who is now a pillar of the Court of Appeal, used to come on circuit a great deal. He began as a Commissioner, and westood greatly in awe of him, for he was a very learned lawyer, and rather insisted on things being done in legal decency and order. Some of the business short cuts of the Northern Circuit he did not appreciate.
I remember winning an important bankruptcy case before Judge Heywood in Manchester. On appeal we came before Vaughan Williams and R.S. Wright, J.J. The other side had Sir Robert Finlay, Q.C., and Yate Lee, afterwards the Stockport judge, a great bankruptcy expert. Sir Horace Davey, Q.C., was to lead me. The case came on in the morning, and Sir Horace Davey was down at the House of Lords. Finlay, seeing his advantage, opened the case in twenty minutes as an obvious mistake in the court below, and Yate Lee said nothing. I was called on to hold the fort against a hostile court until reinforcements in the shape of Sir Horace Davey arrived. I had several cases to quote, but the judges would not have them at any price, and Vaughan Williams kept putting wonderful legal conundrums to me, which I tried to answer or evade as seemed the safer course at the moment.
When Davey came in about half-past three, I think I had won Wright over to see there was something in the points I had raised. Davey told me to sit down, and he started at once. In his thinnest, most arid, and contemptuous tones he explained to the judges that it really did not matter which way they decided, because the case would have to go to the Court of Appeal. Still, it was a more convenientthing that their lordships should decide rightly, or, in other words for him, in accordance with the authorities.
It is a great and rare gift to be able to talk like that to High Court judges, but I felt we were seeking trouble. Vaughan Williams listened for a while, then looked sternly at Davey, and began very quietly:
“Sir Horace, I have put a proposition to your learned junior which he is utterly unable to answer, and it is this——”
The proposition was put.
Davey heard him with theatrical impatience and weariness, and replied:
“My lord, I can understand my learned junior not replying to your lordship’s proposition. Your lordship’s proposition has nothing whatever to do with this case. As I was saying when your lordship interrupted me,”&c.
Of course we lost that appeal. The two judges laughed Judge Heywood’s decision out of court, and a few weeks afterwards the Court of Appeal restored Judge Heywood’s decision, with appropriate astonishment at the reasoning of the Divisional Court. Such is the glorious uncertainty of the law.
Mr. Justice Hawkins was often on circuit in the earlier days. In the Crown Court he was painstaking, but in the Civil Court anything like figures or business details he found irksome. In one business case, counsel began discussing the question of the fall of 1-16d.in the price of yarn, when Hawkins indignantlyinterrupted him by asking whether the time of her Majesty’s judges was to be spent in dealing with fractions of the smallest coin of the realm. Finding that in the result it came to a goodly sum, he referred the case, and spent the rest of the day elucidating a slander action, which resulted in a verdict for another fraction of a penny.
Mr. Justice Cave very often visited the Northern Circuit. He was a stout, heavy, round-faced man, spoke with a nasal twang, and occasionally slept on the bench, but in spite of his peculiarities he was a straightforward, useful lawyer, and a not unkindly judge. He treated the junior Bar with good-humoured toleration, but I cannot say he suffered them gladly. Louis Aitken, who was the most scrupulous prosecutor on circuit, was one day prosecuting a thief before Cave at Lancaster, and finding that a statement of a policeman on the depositions was made in the absence of the prisoner, and therefore not evidence, properly and carefully omitted it. Cave, who was following the depositions with his thumb and a blue pencil, pulled him up:
“Ow now. Ow now, Mr. Aitken,” he said, in his snarling voice. “This won’t do, you know. You’re garbling the evidence. That’s what you’re doing, garbling the evidence.”
Aitken was too stunned to say anything, and Cave took the policeman through the whole statement. When he had finished, he snapped out: “Any other questions, Mr. Aitken?”
“Only this, my lord,” said Aitken, who had recovered his equanimity. “Was the prisoner present during that conversation?”
“No,” replied the officer.
“Ow,” grumbled Cave, as he took his blue pencil and scored it out of his notes. “Remember, gentlemen of the jury, to forget all that. It’s not evidence. Go on, Mr. Aitken.”
A few days after Aitken was dining with the judges, and Cave nodded across the table to him and said, “Lucky we spotted that evidence point at Lancaster, Mr. Aitken.”
I remember, too, in a small libel case the perfect sang-froid with which he transferred the blame of his proceedings on to the shoulders of Lancaster Woodburne, one of our most serious juniors who had something of the south country style. On a hot summer afternoon Woodburne had opened a very unimportant case in a highly impassioned speech, and when he had finished was horrified to find that Cave really was fast asleep. We had often seen him make the attempt, but this was the full offence. The weather and the luncheon hour were accessories before the fact.
“What on earth shall I do?” he muttered to me. I suggested he should call a witness, but Woodburne objected that the judge would not hear his evidence. As I was on the other side this did not seem to me to be very material. The judge’s clerk was out of court, the Associate, well knowing the state of affairs, was busily writing below the bench withhis eyes glued on to his papers. The jury, indeed, were smiling broadly. There was no doubt that it was a painful moment for Lancaster Woodburne. Suddenly a pile of books near my elbow upset on the floor. Cave opened his eyes and shouted angrily at my opponent:
“Now then, Mr. Woodburne, why are you wasting the time of the Court? Are you going to call a witness, or am I to sit here all day doing nothing?”
How different again in manner and manhood was Mr. Justice A. L. Smith. We were all glad to hear that he was coming the circuit. “A. L.,” as he was affectionately called, had a strong, breezy business manner of doing his work that suited Manchester admirably.
Sir Charles Russell once said to a new County Court judge, “Better to be strong and wrong than weak and right.” It is a counsel of perfection to all judges of first instance. “A. L.” understood the idea and acted upon it, and went one better by being seldom wrong. The main reason of his popularity and success as a judge was that he knew his own mind and was always ready to take responsibility promptly.
One of my earliest recollections of “A. L.” was in 1887, when a man named Thomas Leatherbarrow was put in the dock and charged with the murder of a woman. The prisoner had been very violent in the police court, and the chief witness against him was another woman he had tried to kill. He came into the dock, a powerful giant, surrounded by three or four warders. He lurched forward to the rails andgazed wildly round the court like a savage animal looking for prey.
Mr. Shuttleworth, the Clerk of Assize, read the indictment.
“Guilty,” growled the prisoner.
“Do you understand what you are pleading guilty to?” asked Mr. Shuttleworth.
“Yes, I understand.”
“It means killing intentionally.”
“Yes,” said the man with a burst of passion, “and I would have killed the other, too, if I could have got at her.”
“Have you anything to say?” asked the Clerk of Assize.
“Not a word,” answered the prisoner carelessly.
“A. L.,” who had been thoughtfully watching the scene, assumed the black cap and passed sentence without comment.
The prisoner nodded to him, picked up his cloth cap from a chair, and said, “Thank you, sir.”
“A. L.” and the prisoner were perhaps the only two men who at the moment were clear and contented that the right thing had been done.
But it was in the County Courts that one learned one’s first lessons, and as more and more those courts are becoming the elementary schools of advocacy it becomes increasingly important that the judges who preside should have had some sound experience in the business themselves. We youngsters in Manchester were greatly to be congratulated on the presence of Judge Russell, the learned authorof a well-known treatise on Mercantile Law, who presided in the Manchester County Court. Russell sifted out his advocates very rapidly. At first when you knew little or nothing about it he did the case more or less for you. If he found you had any initiative capacity at all he allowed you to flutter your wings on your own. But if you tried to soar to absurd heights he non-suited you on the wing, as it were, to prevent more serious accidents in the course of your aviation; indeed, he was if anything too fond of the non-suit, regarding it as a very present help in time of trouble. But though somewhat strict in technical matters, he was a good lawyer and a useful judge for a junior to practise before. If you could do your work to his satisfaction you need not fear making your bow in the High Court. He was an autocrat, but his autocracy was beneficial to business and justice. Anything like trickiness or ill-faith was abhorrent to him. On one occasion a very learned but rather artful counsel read a correspondence to him and omitted a damaging letter, hoping, no doubt, to deal with it later on. When the letter came out Russell looked very black.
“Is that letter in your bundle of correspondence, Mr. X.?” he asked.
“Yes, your Honour—and I was going——”
“Were going——” repeated Russell sarcastically. “Judgment for defendant.”
It is wonderful how easily a good or bad reputation is made, and how careful the young advocate should be to keep his shield unspotted. I rememberhaving a very bad class of insurance claim which was tried before Lord Coleridge. Some Blackburn people had insured an old gentleman, described as an egg merchant, who died very shortly afterwards. It appeared that the deceased’s employment in recent years had been leaning against the door of a public-house and falling in when it opened. He had not merchanted any eggs since 1862. These things and the rascality of the whole proceeding, which was little short of a conspiracy to defraud, became so apparent as the case went on that at last I said I could not believe in the truth of my evidence, and refusing to call any more witnesses told Lord Coleridge my reasons, and retired from the case.
Lord Coleridge smiled somewhat sarcastically, as I thought, saying, “A very candid expression of opinion about your clients, Mr. Parry, and I have no doubt the jury will agree with you.”
A few weeks later I was supporting a counterclaim in a weary, complicated case at Liverpool, the last in the list before Coleridge, without a jury. I felt sure that if he would adjourn to the next day I could make him see there was something in it. Addison, who was for the other side, ridiculed it, and I quite thought Coleridge would cut it short and run up to town. About 6 o’clock, however, Coleridge said, “I haven’t the least idea what Mr. Parry’s counterclaim is about, and you think it is all nonsense, Mr. Addison; but I am sure he believes in it, and, as I know he wouldn’t continue a case unnecessarily, I shall adjourn.” We had the bestpart of next day at the details, and my client got a substantial verdict.
Judge Hughes, when he was appointed, was expected to do wonderful things, and so, in truth, he did, but the authorship of “Tom Brown’s Schooldays” was not a particularly good apprenticeship for the rough and tumble of the County Court, and his short cuts to ideal justice were seldom successful. One of his earliest exploits, when asked to decide who had won a race and was entitled to the prize, was to order it to be run again, with himself as referee! Apart from the judgment being without legal sanction, the point at issue was not who could win, but who had won the race. On another occasion, during the trial of the disputed ownership of a dog, the animal came into court, and the learned judge had him up on the bench. He then ordered the defendant to go to the other side of the court and call the dog. This the defendant did, and the dog came to him. Immediately judgment was given for the defendant, but the plaintiff complained that he had not been allowed a similar experiment, which very likely would have resulted in a similar way.
Chancery law was supposed to be a speciality with Judge Hughes, but I doubt if he had any real grip of any kind of legal principles. For instance, Byrne and I had a case before him in which a lady claimed specific performance of an agreement. It was a home-made agreement about the transfer of furniture, and it contained, among other things, a promise tomarry. Judge Hughes in his kind-hearted, impulsive way espoused the lady’s cause most warmly. “Why did my client refuse to marry the lady? It was abominable conduct.” For the defendant I tried to urge legal difficulties about decreeing specific performance to marry, but Judge Hughes only shook his head indignantly and kept muttering to himself, “I shall see that agreement carried out—every line of it! Every line of it!”
During the adjournment I chaffed Byrne about his agreement—of course, he had not drawn it—and asked him how the judge was going to carry out his order to compel my client to marry. Both our clients were very obstinate, but in the end Byrne and I made a full and fair settlement of all matters in dispute, though I shall always believe that my client was the more easy to deal with, because he believed that Judge Hughes intended to have him locked up, and only released when he consented to go quietly to the altar. When we returned into court and announced the settlement the learned judge was very vexed with Byrne, and waved us away, saying, “I wasn’t frightened at Mr. Parry’s law, and you needn’t have been. I’d have had that agreement carried out—every line of it! Every line of it!”
As a Druid under an oak tree or on some island far from the Court of Appeal, Judge Hughes would have administered his own equity to perfection, and the suitors would have had an honest, righteous and sporting tribunal. But the administering of lawsmade by others was altogether beyond his imagination. He was stone deaf to common law, and his equity dated back to a period before the discovery of the tree of knowledge of good and evil.
Coventry, the judge of the Blackpool Circuit, was a different type of man altogether. Silent, reserved, and patient, he listened at too great length to both advocacy and evidence, but his decision when it came was sound in judgment and of few words. Charles Costeker, of Darwen, who loved a sporting litigation, once instructed me to defend a most unusual case before Coventry in the Blackburn County Court. The defendants were the vicar and churchwardens of a Darwen church. It appeared the plaintiff had taken a dislike to hearing the curate preach, and used to walk out in order to avoid doing so. This insult to the curate the churchwardens resolved to avenge, and one Sunday morning, when the plaintiff tried to leave the church as usual, they locked the door and sat near it and prevented him going out. He, therefore, sued them for damages for false imprisonment. The vicar knew nothing about it, but as far as the churchwardens were concerned, there was really no answer, though I discovered a canon of the Church that makes it one’s duty to stay and diligently hear the sermon. Coventry, however, was not having anything to do with such an obscure affair as canon law, and the common law was clearly against us. I am afraid the judge, who was of Quaker origin, and some of the advocates were woefully at sea over the details of the Church service,and an old Lancashire verger amused us greatly with one of his replies to Coventry. He was asked when he first noticed the plaintiff come into the church.
“It was during Venaite!” he replied.
“How long after the service began?” asked Coventry.
“It was during Venaite,” he replied.
“I don’t want to know anything about the Venite,” said Coventry, who hadn’t an idea of its liturgical position. “What I want to know is was it ten minutes after the service began, or when?”
“It was during Venaite.”
“I don’t understand what you mean by that,” said Coventry, putting down his pen in despair. The verger thought the word Venite was puzzling the learned judge, and with great friendliness and a pleased smile of superiority turned round and said to him, “I’ll tell yer about Venaite. It’s like what you an’ me if we were talking to ourselves ’ud say: ‘O coom, let’s sing to the Loord.’”
Crompton Hutton, a very learned man of a curious, cantankerous character, held sway over the Bolton and Bury district. He had had a large practice in London as a junior, and though his methods were irregular they did not lack common sense. He never wore robes, and I was told it was an offence to appear in his court in robes. The first time I went before him was at Bury, where he sat in a club-room adjoining the court. I was very frightened, and he glared at me in a way that did not make me lessnervous. I and the solicitor against me, Mr. Anderton, sat on each side of him at a long table with the fire opposite the judge. I found out afterwards that if you could get one of your opponent’s witnesses to stand between Crompton Hutton and the fire he was dismissed the room, and his evidence was never heard. I did not know these and other rules of the court then. The judge pointed to a seat, and I sat down.
“What’s your name?” he asked.
“Parry,” I replied.
“What does he say his name is, Mr. Anderton?” he asked my opponent, turning his back on me.
“Mr. Parry,” replied Anderton.
“H’m. How do you spell it. I never heard such a name,” he grumbled.
This made me very angry, and I retorted, in much the same tone: “Of course you’ve heard it constantly. I’ve seen your name in the law reports with my father’s, Serjeant Parry, many a time.”
Crompton Hutton rose in his chair and spread out his arms as though he was going to hug me.
“What, are you a son of the dear old Serjeant? Really, now. And what are you doing in these God-forsaken parts? Sit down. Delighted.” And he wrung me by the hand in the most friendly fashion.
The case was about a milk float and a lurry. I was for the lurry, and we won, mainly, as far as I remember, because an imaginative office boy of Anderton’s had drawn his client’s milk float gallopingup the road on the wrong side of the way with the driver waving his whip, and Crompton Hutton regarded it as a conclusive admission of facts.
Anderton was a big, heavy, red-faced man of the elder Weller type, and quite as kind-hearted and straightforward. As we walked across to the Derby Arms for some lunch when the case was over:—
“I tell you what it is,” he said to me, “you’ll do very well with Crumpy, but you’ll have to do what he tells you.”
“About what?” I asked.
“About wearing that toggery. He won’t stand it.”
However, he had to stand it, and, fair play to him, though he used to tease me about it, we never quarrelled over it. I went before him often, and much pleased him by persuading the Divisional Court to uphold him on appeal in a building case.
I became quite a favourite of his, and he would always take a case of mine first when he could. I remember once two Chancery men with long affidavits and witnesses to cross-examine were ahead of me, and Crompton Hutton as soon as they were seated turned round to the defendant’s counsel and said, “Call your client.”
“Call my client?” said the astonished advocate. “I want to cross-examine the plaintiff’s witnesses first.”
“I know you do,” said the judge with a sneer, “but we don’t waste time that way here. You willbe asking for further consideration next, but you won’t get it here.”
“But I’m entitled to——”
“Certainly, but not at other people’s expense. Now, Mr. Parry.”
And the Chancery protests were unavailing. I got heard and sent away.
I just caught the beginning of the Chancery case. The defendant’s counsel was again asked to put the defendant in the box, and refused.
“And I’ll tell you why,” said Crompton Hutton. “I’ve read those affidavits, and unless the defendant swears the necessary additional facts you’ve no case, and if he swears the necessary additional facts I’ll commit him for trial for perjury. That’s all!”
There was a lot of common sense about Crompton Hutton.