A GENERATION OF JUDGES.
 
 Ex Libris 
 C. K. OGDEN 
 
 A GENERATION OF JUDGES 
 
 BY 
 
 THEIR REPORTER. 
 
 Robes and furred gowns hide all." 
 
 LONDON: 
 
 SAMPSON LOW, MARSTON, SEARLE & RIVINGTON, 
 CROWN BUILDINGS, 188, FLEET STREET. 
 
 1886. 
 
 (All right! reserved.)
 
 LONDON : 
 
 PRINTED BT WILLIAM CLOWES AND 8ON8, LIMITED, 
 STAMFORD STREET AND CHARING C8OS8.
 
 ITPP A py 
 -V n ^ . T TT7 , 
 
 SANTA BARBARA 
 
 PREFACE. 
 
 THE subject of this book is the Generation 
 of Judges who held office during the last 
 ten or twelve years, and are now dead, and 
 it includes two men Karslake and Benjamin 
 who by accident were not judges. 
 
 Judges are seldom heroes to their reporter. 
 He has in his note-book too many of " our 
 failures," as Brummell's servant called the 
 basketful of his master's crumpled neck- 
 cloths. Having at the same time no less a 
 share in the production of judgments than 
 the organ-blower has of the music, he is 
 animated at least with the tolerance of a 
 fellow-worker. 
 
 In any case, he has daily before him tests 
 of the character and capacity of his judges, 
 and seated in court among his fellow-barristers, 
 as men come and go, he is inspired with the
 
 VI PREFACE. 
 
 whispered criticisms of the Bar on the Bench, 
 and has breathed into his ear the freshest 
 joke of Mr. Justice This, and the latest Circuit 
 story of Mr. Justice That. 
 
 He thus reflects the knowledge and opinion 
 of Westminster Hall, if that name may be 
 retained until the Royal Courts lose some of 
 their newness. 
 
 The information so gained and the judg- 
 ment so formed of the judges of his time 
 are here reported in all good faith, and -as 
 intelligibly as can be, by 
 
 THEIR REPORTER.
 
 CONTENTS. 
 
 COCKBURN ... ... ... ... ... 1 
 
 LUSH ... ... ... ... ... 21 
 
 QUAIN AND ARCHIBALD ... ... ... 30 
 
 KELLY... ... ... ... ... 38 
 
 CLEASBY ... ... ... ... ... 54 
 
 WILLES ... ... ... ... 60 
 
 BYLES ... ... ... ... ... 71 
 
 MARTIN ... ... ... ... 83 
 
 JAMES AND MELLISH... ... ... ... 95 
 
 THESIGER ... ... ... ... 112 
 
 HOLKER ... ... ... ... ... 119 
 
 AMPHLETT AND HALL ... ... ... 128 
 
 HATHERLEY ... ... ... ... 139 
 
 MALINS ... ... ... ... 147 
 
 CAIRNS ... ... ... ... ... 157 
 
 JESSEL ... ... ... ... ... 171 
 
 KARSLAKE ... ... ... ... ... 183 
 
 BENJAMIN ... ... ... ... 190 
 
 PHILLIMORB ... ... ... ... 204 
 
 WATKIN WILLIAMS ... 211
 
 A GENERATION OF JUDGES, 
 
 COCKBUEN. 
 
 1856-1880. 
 
 AT a meeting of the Barristers' Benevolent 
 Association, in 1875, in response to a resolu- 
 tion thanking Chief Justice Cockburn for 
 presiding, proposed by the Attorney-General, 
 and carried by acclamation in a full attendance 
 of the Bar, Cockburn said : "If the results of 
 my life at the Bar and on the Bench have been 
 such as to command, or to obtain, the appro- 
 bation and confidence of the profession, I 
 shall be indeed satisfied with my case. If 
 those before whom I have administered justice 
 so many years, and who are best qualified to 
 judge, believe that I have maintained the
 
 COCKBURN. 
 
 upright character and the judicial integrity 
 which have always distinguished the English 
 Bench if that be so, then indeed the dearest 
 -object of my life, and the highest hope of my 
 ambition, have been abundantly realized." 
 
 Cockburn, as Lord Chief Justice Coleridge, 
 his successor, reminded the Bar in deliver- 
 ing his panegyric in the Common Pleas at 
 Westminster a few days after his death, 
 " could not, more than other men, be made 
 the subject of unmingled praise." But now 
 that he has been dead some years, there is 
 no reason to doubt that posterity will confirm 
 the judgment of his contemporaries, that he 
 not only maintained the character of the 
 Bench and the Bar, which was so close to his 
 heart, but added to the high traditions of the 
 Bar, and increased the lustre of the name of 
 Chief Justice of England. 
 
 Cockburn died at a moment when those 
 who love their reputation as he loved his 
 may well wish to die. He was in the fulness 
 of years, but not in the decay of age. The 
 seventy-eight years he had lived had not 
 impaired his powers, either physical or mental.
 
 CHAEM AS OEATOR. 
 
 His step was elastic, his action was animated 
 and unconstrained, his eye was bright, and his 
 voice had the ring of youth. 
 
 At the moment of his death, his contempo- 
 raries could not avoid laying the greatest 
 stress upon his personal qualities, somewhat 
 to the neglect of his more permanent merits. 
 They missed the gracious presence which so. 
 lately had been among them, and they dwelt 
 upon him as an orator rather than as a lawyer 
 and a judge. For an orator he possessed the 
 highest qualifications, natural and acquired. 
 An expressive face and a natural propriety 
 of action set off a voice which was always 
 musical, and could be tender, or indignant, or 
 humorous at will. It was one of those voices 
 which not only convey the words of the 
 speaker in the best form, but which imply a 
 reserve of meaning beyond. 
 
 Curious investigators of causes may attribute 
 much of Cockburn's personal charm to the 
 French blood which he inherited from his 
 mother ; it is beyond doubt that he owed a 
 great deal of his power over language to his 
 familiarity with modern tongues. A good
 
 COCKBURN. 
 
 acquaintance with the classical languages, 
 .added to the knowledge of French, German, 
 and Spanish, supplied the right education for 
 "an orator. It would make some men linguists ; 
 but, added to Cockburn's other qualifications, 
 it made him the greatest speaker of his day, 
 and perhaps of his century. His powers of 
 expression were strengthened by his training ; 
 but they were not hampered by it. He pro- 
 nounced English as it should be pronounced, 
 and his sentences were idiomatic, and some- 
 times racy. There was a precision in his use 
 of words remarkable in an age of careless 
 speaking, and on the Bench he would weigh 
 his expressions accurately. 
 
 Besides his other qualities as a speaker, he 
 possessed a vivacity which animated them all. 
 The power of throwing himself into the sub- 
 ject is the essential characteristic of the orator. 
 This impetuosity was subdued on the Bench ; 
 but it never was absent ; and off the Bench 
 he would sometimes be carried away by it so 
 far as to give those who had never heard him 
 at the Bar a glimpse of what his powers as an 
 advocate were.
 
 SELF-CONTROL AS JUDGE. 
 
 A speaker possessing these gifts cannot be 
 a great judge unless they are tempered by 
 self-control. How severe was the constraint 
 to which Cockburn could subject himself was 
 shown in the Kenealy incidents of the Tich- 
 borne trial of 1873. Such was the impression 
 of power which the Chief Justice produced on 
 the Bench that there were few men who dared 
 take a liberty with him. A word from the 
 voice which could speak daggers was generally 
 enough. Kenealy 's manner, therefore, while 
 it showed exceptional pertinacity in him, was 
 little likely to be brooked by a Chief Justice 
 so accustomed to respect and almost subservi- 
 ence. But Cockburn knew that Kenealy's 
 committal for contempt might prejudice the 
 fairness of the trial of the Claimant in public 
 estimation, and he refrained from that step, 
 although it was fully deserved. The Tichborne 
 trial in other respects was such as to test to 
 the utmost the moral side of the judicial nature. 
 The Chief Justice was unwearying in patient 
 listening, and untiring in collating and ex- 
 pounding the facts. His summing-up was a 
 model of lucid statement and elaborate reasoning.
 
 6 COCKBURN. 
 
 Cockburn was criticized as having a weak- 
 ness for being before the public, and apt to 
 prolong inquiries raising topics of general 
 "interest in which he could be the central 
 figure. It cannot be denied that there was 
 some truth in this accusation, yet it is certain 
 that he did not neglect small cases, but would 
 try them with as much care, and as fully bring- 
 all his powers to bear on them, as if the eyes 
 of England were upon him. 
 
 A more substantial criticism was that he 
 seldom was able to resist a controversy. Like 
 an old hunter who encounters a pack of 
 hounds on the high road, a very small pro- 
 vocation sufficed to carry him off the beaten 
 judicial track over the fences and ditches of 
 polemics. In one case the Mackonochie con- 
 troversy of 1878 Lord Penzance was the 
 provocative ; and in another a point of evi- 
 dence he made a County Court judge do duty 
 for an opponent, although it must be confessed 
 that Mr. Pitt-Taylor manfully retaliated. 
 
 These escapades were much to be depre- 
 cated ; and there are some who would place his 
 protest in 1868 against judges trying election
 
 OCCASIONAL PROTESTS. 
 
 petitions and in 1871 against the appointment 
 of Sir Eobert Collier in the same class. Such 
 deliverances were, however, within his province ; 
 and although the latter in no small degree 
 contributed to the fall of the party of which 
 Cockburn had been a member, it was right 
 that, feeling as he did, he should say what 
 he did. His objection to the judges trying 
 election petitions has been falsified by the 
 event on the main ground occupied by him, 
 namely, that the ermine would be soiled 
 by contact with politics. Since the transfer, 
 petitions have been tried much more satis- 
 factorily, and the Bench has not suffered ; the 
 only sufferer being the ordinary suitor who 
 has been deprived of judges. 
 
 This protest was delivered against a Bill 
 introduced by the Conservative party ; and 
 nothing is more noticeable in the career of 
 Cockburn than his complete severance from 
 political party after his elevation to the 
 Bench. Chief Justices are generally credited 
 with a desire that their mantle shall fall on 
 a successor professing the same politics as 
 themselves, and of regulating their resigna-
 
 8 COCKBURN. 
 
 tion accordingly. No one ever suggested that 
 such an idea was in the contemplation of Chief 
 Justice Cockburn, although it was at one time 
 Said that he wished Sir John Karslake, a man 
 of the opposite party, to follow him. 
 
 The position of Chief Justice develops Con- 
 servative instincts ; and, although no man was 
 a more loyal advocate of liberty than Cock- 
 burn, throughout his life he was thoroughly 
 conservative as a lawyer. His strong imagina- 
 tion made him attach great importance to the 
 traditions of the office which he filled, and the 
 proposal of Lord Hatherley in 1870 to convert 
 the Court of Queen's Bench into " Chamber 
 No. 2 " raised his indignation, and ever 
 afterwards he appears to have taken a dis- 
 like to the new system introduced by the 
 Judicature Acts. Those Acts were treated 
 by him with coldness, and even repugnance. 
 Their introduction gave a Chief Justice of 
 his calibre the opportunity of becoming their 
 great prophet and expounder had he been 
 so minded ; but he always treated them as 
 a somewhat childish attempt to alter things 
 by altering names. New statutes of all kinds,
 
 THE ADVOCATE'S WEAPON. 
 
 too frequently in his later days, tempted him 
 to criticize their policy or style in preference 
 to interpreting them. 
 
 Cockburn's judgment in the great Geneva 
 arbitration of 1872, which placed him prob- 
 ably at the highest point of his popularity 
 with his fellow-countrymen, and which earned 
 him his Grand Cross of the Bath, is that one 
 of his productions which will go down furthest 
 to posterity, while the immense research and 
 elaboration which it displays are a monument 
 of the industry he could put forth when 
 spurred by a great occasion. Another per- 
 formance perpetuating his name was his 
 speech, as Attorney- General, in the Middle 
 Temple Hall, at a dinner given by the Bar to 
 Berryer, the French advocate. Combating the 
 opinion expressed by Brougham, that an advo- 
 cate in the discharge of his duty regards only 
 the interests of his client, even if he " involve 
 his country in confusion," Cockburn uttered 
 the famous phrase, that the weapon of the 
 advocate was the sword of the soldier, not the 
 dagger of the assassin. 
 
 His criticisms of the Criminal Code were a
 
 10 COCKBURN. 
 
 contribution to the subject of high value, and 
 will do much to shape the ultimate form of 
 that measure, not the least benefit conferred 
 being the necessity for deliberation in bring- 
 ing about those radical changes on which his 
 letters insisted. 
 
 Probably one of the secrets of the hold 
 which Cockburn had on the public mind 
 was due to his reputation of having passed 
 a somewhat stormy youth. " Whatever hap- 
 pens," he said, with a fondness of his own 
 for a vernacular expression, " I have had my 
 whack." After an attack of fainting on board 
 his yacht, the Zouave, he had been told 
 that he was suffering from angina pectoris. 
 What was then anticipated happened three 
 months later. The Chief Justice had sat in 
 Court at Westminster and left a case partly 
 heard. He walked across the park, as usual, 
 to Hertford Street, dined, and went to bed. 
 Shortly afterwards he rang his bell, was found 
 by his servant in great pain, and died in a 
 quarter of an hour. 
 
 The " whack " to which he lightly referred 
 was a tolerably large share of favour and
 
 "THE BIDING WHICH DID IT." 11 
 
 success both in public and social life. It 
 began when he was conducting criminal de- 
 fences at the Exeter Quarter Sessions, and 
 extended over the time of his gay association 
 with Bulwer, Disraeli, and the wits of the 
 day, through his Parliamentary career when in 
 1850 he leaped into fame in the Don Pacifico 
 debate, through his forensic success when in 
 1852, as Attorney-General, he defended New- 
 man in the Achilli case, down to the time 
 when he was Chief Justice, a G.C.B., and the 
 most prominent figure on the Bench for the 
 greater part of four and twenty years. 
 
 In the earlier days of 1843 he had defended 
 Macnaghten for shooting Drummond in mis- 
 take for Peel, but the best testimony to his 
 marvellous skill in the conduct of cases was 
 given by one of its victims, Pa]mer, the 
 Rugeley poisoner, prosecuted by Cockburn as 
 Attorney- General, and hanged for murder. At 
 his trial, after the jury had returned their 
 verdict of guilty, Palmer handed down to his 
 solicitor a slip of paper. On it he had written, 
 in betting-ring language, " It was the riding 
 which did it."
 
 12 COCKBURN. 
 
 The tales told of his youth on Circuit 
 were of a kind to explain the rarity of his 
 appearance as a Judge of Assize in the West. 
 There is a window in the robing-room of 
 the Castle of Exeter, by the friendly aid 
 of which it is said the future Chief Justice 
 escaped the bailiff, and a peculiar and exten- 
 sive knowledge of the exact points at which 
 the jurisdiction of the City Sheriff ended and 
 that of the County Sheriff began was cur- 
 rently believed to have stood him in good 
 stead at critical moments. 
 
 Cockburn's days and nights during Term 
 were spent with a regular irregularity. He 
 would return from his work in Court, and 
 after dinner he would be found at the opera 
 or a concert indulging his love of music, or at 
 a reception, or perhaps he entertained a party 
 of his own friends, including, it might be, the 
 prima donna of the day, at the famous table 
 of which he was the life and soul. He almost 
 always went to bed between one and two 
 in the morning with a " nightcap " of whiskey 
 and water. His habit of moderate hours and 
 strict temperance was, in a life the duties
 
 AFTER-DINNER SPEECHES. 13 
 
 and pleasures of which were both laborious, 
 perhaps the cause of his reaching his seventy- 
 eighth year. He did not rise early in the 
 morning, but just in time to take a hurried 
 breakfast, and dash into his carriage, with the 
 words, " To Guildhall, as hard as you can go." 
 At five minutes after ten he would appear 
 in Court, and begin to try a special jury case 
 as fresh and vigorous as ever. 
 
 His perennial vivacity was never better 
 shown than in an after-dinner speech upon a 
 semi-public occasion, when he felt among 
 friends, and was free to say what he liked. 
 He showed none of the stiffness of age, and 
 his attitude and action had a boyish freedom 
 about them. He appeared to be on wires. 
 On one of these occasions a newly appointed 
 judge from his old Circuit, of fresh and robust 
 appearance, was welcomed by Cockburn to the 
 Bench with many kind words, which he 
 brought to a close by saying, " I have only 
 one objection to make to him as a judge, and 
 that is, that he looks so confoundedly young, 
 that he puts us all to the blush." 
 
 No judge was more dignified on the Bench,
 
 14 COCKBURK 
 
 and few judges could throw off their dignity 
 so well. On his last visit to the West, he 
 dined with the Bar. After dinner, it fell to a 
 very young barrister, who had sung a good 
 song, to " call " upon some one else to con- 
 tribute to the entertainment. With match- 
 less coolness, he said, " I call for a song from 
 the Lord Chief Justice." Cockburn was a little 
 taken aback, but eventually he sang " The 
 Somersetshire Poacher " " It is my delight 
 on a shiny night," in a broad West-country 
 dialect, with great gusto and in good style, 
 to the huge gratification of all present. 
 
 Few who saw Cockburn as he sat in Court, 
 looking every inch a gentleman, his wig and 
 gown carefully adjusted, his bands neatly 
 smoothed, and his delicately coloured hand- 
 kerchief in his hand, would recognize him 
 after he had passed the door of his Court with 
 a jaunty step, and swinging his umbrella. 
 Cockburn in the street looked for all the world 
 like a groom taking a holiday. Not that he 
 was at home on horseback, although he amused 
 the leisure of his latter days by writing papers 
 on the history of the chase, by which his
 
 "YOU SHOT MY KEEPER." 15 
 
 imagination had been inspired. In fact, he 
 sometimes perilled his life in a gallop ; but his 
 gait and stature in walking gave him a mean 
 look. He was fond of shooting, and more 
 expert than Lord Westbury with the gun, in 
 spite of the story told of them when they 
 were law officers together. Cockburn went 
 to stay with Bethell, and in the course of a 
 day's shooting Bethell managed to pepper one 
 of the keepers with shot. Some time after- 
 wards, when the two were talking of business 
 in the presence of others, Bethell forgot what 
 had happened on a certain day, when Cock- 
 burn reminded him that they were together. 
 " Ah, yes," said Bethell, with his usual drawl, 
 " I remember that was the day, Cockburn, 
 when you shot my keeper." 
 
 Turning from these indifferent matters, 
 which yet go to make up the character, to 
 weightier things, it must be said that Cock- 
 burn's unfortunate want of sympathy with the 
 Judicature Acts lost him the chance of making 
 such a figure in the history of English law 
 as was made by some of his predecessors, and 
 particularly Lord Mansfield. These judges
 
 16 COCKBURN. 
 
 made law because there were gaps of import- 
 ance to be filled ; while modern judges can 
 merely follow their predecessors so far as the 
 great outlines of law are concerned. Cockburn 
 lost this opportunity, but much as he disliked 
 these Acts he could not prevent their making 
 him Chief Justice of England, a title which 
 some of his predecessors had already usurped, 
 although legally styled Chief Justices of the 
 King's Bench. When the abolition of the chief- 
 ship of the Common Pleas was contemplated, 
 the title of Chief Justice of England was con- 
 ferred on the now only surviving Chief Justice. 
 Cockburn may, however, be said to be the 
 creator of much of the law of libel, particularly 
 so far as regards the public press. The mean- 
 ing of the reservation in favour of privileged 
 publications had, up to his time, been very 
 vaguely understood in many of its applications. 
 It was Chief Justice Cockburn's task to make 
 it clear. In Wason v. Walter, he decided 
 that a full and faithful report in a newspaper 
 of proceedings in Parliament, although defama- 
 tory, cannot be the subject of an action a 
 point upon which there was a total absence of
 
 AS A LAWGIVER. 17 
 
 direct authority up to that time. On the 
 other hand, in Campbell v. Spottiswoode, an 
 action against the Saturday Review, it was 
 laid down that a newspaper is not privileged 
 per se to write whatever is bond fide believed 
 by the writer, and base motives may not be 
 imputed without reasonable ground. In both 
 these cases Cockburn presided at the trial at 
 Nisi Prius as well as at the argument in Banco ; 
 and he also tried Seymour v. Butterworth, 
 where the question was, Whether personal 
 vindictiveness had been indulged in under 
 cover of public criticism ? He also took part 
 in Kcenig v. Ritchie at Nisi Prius a case 
 involving the privileges of pamphleteers in 
 answering one another. 
 
 In these, and other cases, he may be said to 
 have shaped the law of libel in regard to the 
 press, so that it is now well understood. The 
 general principle which inspired Cockburn was 
 perfect freedom of discussion of public men, 
 stopping short, however, at attacks on private 
 character, and the reckless imputation of 
 motive. 
 
 The part taken by him in 1867 in his charge
 
 18 COCKBURN. 
 
 to the grand jury at the Central Criminal Court 
 in the Jamaica case, in which he laid down the 
 limits of military law, was his greatest con- 
 tribution to the cause of personal liberty, 
 which he always had at heart. For clearness 
 of expression and closeness of reasoning, his 
 judgment in the Franconia case, in which he 
 held with the majority, that the English Courts 
 had no territorial jurisdiction outside low- 
 water mark on the sea, is a good example of 
 his style. His devotion to the cause of justice 
 is well illustrated by the persistence with which 
 he maintained the cause of Galley, a man 
 who was convicted in Cockburn's presence at 
 Exeter, when he was a young man at the Bar. 
 Cockburn believed in his innocence, but vainly 
 tried to have the sentence reversed. When 
 he was Chief Justice, and not long before his 
 death, the case was brought to his notice 
 again, and through his exertions the stigma of 
 conviction was removed from the man, who 
 had been sent into transportation, and had 
 flourished in Australia. 
 
 The estimate of his manner of presiding at 
 jury trials will probably be taken from the
 
 IN SUMMING UP. 19 
 
 Tichborne case. His summing-up, which all 
 agree to be a marvel of lucidity, has been 
 criticized, especially across the Atlantic, whence 
 our cousins canvass legal proceedings in Eng- 
 land with keen interest and intelligence, as 
 too unfavourable to the defendant. There are, 
 in fact, two distinct courses for a judge to 
 take in summing-up to a jury. He may either 
 recapitulate the facts and leave all the respon- 
 sibility to them ; or, having formed an opinion 
 on the various issues in the case, he may point 
 out to the jury the considerations tending to 
 that conclusion, giving them, at the same 
 time, all the considerations which have an 
 opposite tendency. The first plan is that 
 of a weak judge, and the other is the one 
 adopted by Cockburn. By the first view of 
 the judge's duties, juries are deprived of the 
 best part of the experience, training, and intel- 
 lectual superiority of the judge ; while, in the 
 plan adopted by Cockburn, they have the full 
 benefit of the judge's assistance. There can be 
 no question of the superior advantages of Cock- 
 burn's system in the hands of a man like him ; 
 the only danger is that it may be adopted by
 
 20 COCKBURN. 
 
 weaker judges in cases in which they cannot 
 do justice to the facts in all their bearings. 
 
 Chief Justice Cockburn will undoubtedly 
 take rank among the great English judges of 
 the first class. He excelled them in so many 
 things, that his incompleteness in technical 
 knowledge will not keep him out of their ranks. 
 Of this failing, due to a hand-to-mouth educa- 
 tion in law, he was conscious, and sensitive of 
 its discovery, but skilled in making a dignified 
 retreat. 
 
 With a Blackburn by his side, his short- 
 comings in depth of learning were easily sup- 
 plied. In his manner to the Bar he set an 
 example of perfection in courtesy which 
 succeeding judges may well attempt to 
 approach. That one among the later Chief 
 Justices with whom a comparison naturally 
 arises was Lord Denman, and when we see 
 how greatly he excelled Lord Denman, we 
 are able to say how high a place he will 
 take in legal history. His death enriched the 
 traditions of his office, by which his successors 
 should be inspired as fully as he himself by 
 the greatness of his predecessors.
 
 LUSH. 
 
 1865-1881. 
 
 LUSH is known to the world as one of the 
 three judges who took part in the Tichborne 
 trial, and as a judge guilty of the eccentricity 
 of preaching on Sundays. Among lawyers 
 he was known as the most expeditious and 
 effective of the Nisi Prius judges of his day. 
 He made his way to the highest judicial 
 offices solely through his individual merits, 
 and won his success step by step without the 
 sudden upward push which politics give, and 
 his career began almost at the very bottom of 
 the professional ladder, as an articled clerk in 
 a solicitor's office. 
 
 Besides these elements of popularity among 
 his fellows, Lush possessed an energy and 
 rapidity in his work, combined with a perfectly
 
 22 LUSH. 
 
 forensic habit of thought and manner, which 
 made him one of the most desirable of judges 
 before whom to try a cause. He could be 
 relied upon to show no caprice or crotchet, and 
 to do his judicial work with a fairness and 
 patience which inspired confidence in all con- 
 cerned. But his businesslike capacity at 
 Nisi Prius and in Courts of practice were lost 
 to the public when he was, more than a year 
 before his death, raised to the Court of Appeal 
 on the death of Thesiger. 
 
 His elevation was a well-deserved compli- 
 ment, just as his admission to the Privy 
 Council had been a recognition, tardily made, 
 of his services. But in the Court of Appeal 
 Lush was looked upon, less as likely to illumi- 
 nate the law by judgments which would last, 
 than as one of the few judges able by his 
 experience to carry the tradition of the past 
 into the present. It seemed as if the new 
 system were having a fatal effect on the 
 judges. With the exception of Lord Black- 
 burn, who was raised to the Bench three years 
 after Lush, there was at Lush's death no occu- 
 pant of the Bench created since 1868, and
 
 "TENAX JUSTITLE." 23 
 
 nearly half the judges had been made since 
 the Judicature Acts came into operation. The 
 presence on the Bench of Lush, who was the 
 successor of a judge so far distant from us as 
 Crompton, was one of the links with the past 
 system of procedure rapidly becoming fewer 
 and fainter. 
 
 His career had a consistency about it which 
 makes it not difficult to estimate. His fault on 
 the Bench was over-confidence in his opinion, 
 and tenacity of the view once formed. His 
 motto, when he was made a serjeant, " Tenax 
 justitice," aptly, and perhaps consciously, ex- 
 pressed his character, if it be taken to refer 
 to tenacity of his own view of law and justice. 
 This quality which rendered it sometimes 
 difficult to dislodge an opinion, formed, it 
 might be, on insufficient knowledge although 
 in his way on the Bench, was of the highest 
 use to him at the Bar, where the necessity for 
 speedy action makes a rapid judgment essen- 
 tial. His tenacity of character, combined with 
 an acknowledged superiority in practice, an 
 excellent knowledge of law, sublimated by 
 his experience as a special pleader, and great
 
 24 LUSH. 
 
 fluency of expression, was the cause of his 
 success at the Bar. His cases were naturally 
 those which are known as " heavy causes," 
 in which sterling qualities, as well as tact 
 and knowledge of the world, are required, 
 but in which verdicts are not won by 
 eloquence or strokes of genius. 
 
 On the Bench, his best title to fame is that 
 he was the most perfect Nisi Prius judge of 
 his time. His briskness was communicated to 
 counsel, witnesses, and jurors, without ever 
 degenerating into hurry. The over-tenacity 
 already referred to did not display itself in the 
 appreciation of facts, and on points of law 
 was tempered by complete candour when once 
 an opinion was shown to be unfounded. Lush 
 did not possess the smallness of mind which 
 makes some ashamed to retract an opinion. 
 He had too much confidence in his own repu- 
 tation for any such weakness. In Brand's 
 case, he in the House of Lords recanted his 
 opinion in the Queen's Bench that a railway 
 company was not bound to compensate for 
 vibration, although that opinion turned out 
 to be orthodox. On the hundred and one
 
 APTITUDE FOR LEGAL BUSINESS. 25 
 
 collateral questions which arise in a trial of 
 any complication, he gave his decision rapidly, 
 and, what was more, was generally right. 
 
 The ease with which he fell into the trial 
 of criminal cases was an example of great 
 adaptability. Until he was made a judge, 
 Lush had never seen the inside of a Criminal 
 Court, and yet after a very short time he was 
 equally efficient in trying prisoners as at Nisi 
 Prius, and so great became his experience at 
 last, that he was chosen one of the committee 
 of judges to criticize Sir James Stephen's 
 Criminal Code. He saw the crucial point of 
 the evidence with marvellous quickness, kept 
 the case within its due bounds without any 
 appearance of impatience, summed-up shortly 
 and clearly to the jury, and dismissed the 
 prisoner, if there was a conviction, with a few 
 practical words of warning. Few could dis- 
 cover, from seeing Lush on the Bench, that he 
 was a man of deep religious feeling and a 
 preacher at the Baptist Chapel in the Regent's 
 Park which he attended. He knew his busi- 
 ness too well to preach in Court ; and the 
 only point at which his religious opinions can
 
 26 LUSH. 
 
 be said to have come to^ the surface was in the 
 form of words used by him in sentencing to 
 death. Instead of the usual form at the end 
 of the statutory sentence, "And may God have 
 mercy on your soul ! " Lush would say, " And 
 may you be led to seek and find salvation ! " 
 
 With all his sincere religious conviction, he 
 was not socially austere, still less fanatic. The 
 records of the Wine Committee of the Home 
 Circuit would show that he did not neglect his 
 wine, and he continued almost to the end of 
 his days the old-fashioned habit of finishing 
 his bottle of port after dinner. Perhaps it 
 was a recollection of this indulgence which, 
 in Westminster Hall, on November 2, 1865, 
 suggested a joke on his name and that of a 
 colleague in the Queen's Bench appointed 
 about the same time, Mr. Justice Shee. As 
 the new judges walked up the hall, there were 
 loud cheers, and cries of " Lush and Shee." 
 " Lush and Shee ! " said a bystander ; " that 
 is the old toast of ' Wine and woman. " 
 
 Lush will not take the highest rank among 
 the lawyers of the past. It was as a practical 
 worker that he must be judged. He wrote
 
 BOOKS AND JUDGMENTS. 27 
 
 books, but none of them have survived. One 
 of his books was an edition of "an act to 
 abolish arrest on mesne process," a statute 
 passed in the first year of the Queen's reign, 
 getting rid of the practice familiar to the 
 history and the romances of the previous 
 period, when a man, by swearing that another 
 owed him twenty pounds, could have him 
 immediately arrested. His " Practice in the 
 Superior Courts " is better known. A repu- 
 tation as a legal writer can hardly be made 
 on the sandbank of procedure, although a 
 successful book on Practice may give a fillip 
 to a lawyer's success. His reputation for skill 
 in questions of procedure was utilized in the 
 drafting of the Judicature Rules, and in 1875 
 he was selected to sit at Chambers to give 
 them a fair start. All that can be said of 
 Lush's books is that they were valuable in 
 their time, but they were permanent neither 
 in subject nor treatment. 
 
 A similar observation might with some truth 
 be made on his judgments. He did not leave 
 his mark in any branch of the law, although 
 he did good service in all branches. In the
 
 28 LUSH. 
 
 Mackonochie case, he turned out, according to 
 the opinion of the Court of Appeal and the 
 House of Lords, to be right when Cockburn and 
 'Mellor were wrong. Possibly it would have 
 been a more fitting termination to his career 
 if he had died a judge of first instance. He 
 was made a Judge of Appeal too late, when 
 the elasticity of his mind had begun to fail. 
 Possessed of a fair knowledge of equity, he 
 might at an earlier period of his life have done 
 as good work in deciding Chancery appeals as 
 he had already done in other departments of 
 the law. 
 
 Partly from the cause already assigned, and 
 partly from the loss of his wife which took 
 place early in the year, Lush did not appear 
 at home on the Bench of the Court of Appeal, 
 especially in hearing Chancery cases. Some 
 signs of failure were visible at the last assizes 
 which he attended, when he seemed to have 
 lost a part of his vivacity and acuteness of 
 perception, and later he showed an appearance 
 of physical breaking-up, alarming to all who 
 had known him long, and justified by the 
 result. He left behind him as high a reputa-
 
 CAKELESSNESS OF FAME. 29 
 
 tion as any judge may wish to leave for 
 singleness of purpose and honest and efficient 
 labour in his high station, none the less 
 because he himself was absolutely careless of 
 his fame.
 
 QUAIN AND AKCHIBALD. 
 
 1872-1876. 
 
 QUAIN and Archibald were both made judges 
 in the year 1872, and both died within a 
 month of one another in the year 1876, but 
 there the parallel ends. Quain was a little, 
 lively, rubicund man, whose temperament was 
 suitable to, and whose manners were formed 
 by, the breezy atmosphere of the Nisi Prius 
 Courts of the Northern Circuit. 
 
 His diminutive but rather fiery presence 
 and voice pitched in a high key were a strong 
 contrast to the tall figure, deep voice, and 
 grave manner of Archibald, as they sat to- 
 gether in the little cockpit at the back of the 
 Court of Queen's Bench at Westminster, 
 which went by the name of the Bail Court, 
 before Archibald was translated to the Court 
 of Common Pleas.
 
 TREASURY COUNSEL. 31 
 
 Archibald was trained as a lawyer in the 
 school to which so many of the best judges of 
 recent years are owed, that is the chambers 
 of the Attorney-General. Probably Archibald 
 would have been shocked to have heard himself 
 called the Attorney-General's "devil," but such, 
 when he was Treasury Counsel, was his title in 
 popular professional language. Archibald suc- 
 ceeded Hannen, also a judge, and Bo wen and 
 Smith, judges too, followed him as Treasury 
 Counsel, and the succession will doubtless be 
 continued. In this character he drafted the 
 Act commonly called " Bovill's Act " (for the 
 " devil " forges renown for his master, the 
 Attorney-General), which simplified petitions 
 of right, the procedure by which the subject 
 obtains justice in matters of money and pro- 
 perty as against his sovereign. 
 
 One of the peculiarities of the training of 
 judges coming from this source is that they 
 have never been Queen's Counsel. They lose 
 from this fact some of the fluency and readi- 
 ness which Nisi Prius gives, and are, therefore, 
 perhaps less at home with juries than in 
 deciding points of law. There can be no
 
 32 QUAIN AND ARCHIBALD. 
 
 better education for a judge sitting alone, 
 which is now the popular tribunal in civil 
 cases, than the work of an Attorney-General's 
 " devil." In the advice he gives he has to be 
 sure of his facts, and tolerably sure of his law, 
 as the Crown cannot afford to be dragged into 
 litigation without good reason. Another ad- 
 vantage of this class of judge is that he cannot 
 be a politician. Since the day of the judges 
 mentioned, an attempt has been made to break 
 through this rule, which, if imitated, will 
 injure the claim of Treasury Counsel to the 
 Bench in reversion. 
 
 Archibald hailed from Nova Scotia, where 
 his father had been Master of the Kolls. He 
 had great knowledge of law, pointed by his 
 practice as a special pleader (an advantage 
 which lawyers unfortunately do not have 
 nowadays) and a solid judgment ; but four 
 years on the Bench were hardly sufficient to 
 bring out capacity as a judge, either in his case 
 or in that of Quain. The feeling with which 
 the early death of Archibald inspired pro- 
 fessional opinion was something like that in- 
 spired by the death of Wickens. It was a
 
 FIT TO BE JUDGED. 33 
 
 common belief that Archibald would have 
 made a most successful judge, while the general 
 opinion of his personal character was aptly 
 expressed by Lord Coleridge in the eulogium 
 pronounced by him as Chief Justice of the 
 Common Pleas : " No one was fitter than he to 
 be taken from the great task of judging others 
 to be judged himself." His faults were an 
 abruptness in his judgments and a distrust of 
 his own opinion. 
 
 Towards Quain Westminster Hall was 
 hardly so favourably disposed as towards 
 Archibald. Quain was one of the first men of 
 eminence given to the world through Uni- 
 versity College by the University of London, 
 and he obtained his first legal training in the 
 chambers of Thomas Chitty, the pleader. 
 He always took an interest in legal education, 
 and by his will devoted 10,000 to its pur- 
 poses, subject to the life interest of his 
 brother. Neither judge was wanting in 
 manner; Archibald was habitually courteous, 
 but Quaiu was a little impulsive. He 
 had the reputation of being fond of good 
 cheer, while over Archibald there was a cast
 
 34 QUA1N AND ARCHIBALD. 
 
 of melancholy, although he was believed not 
 incapable of quiet rejoicing. There was an 
 appearance of permanence about Archibald, 
 but no expectation for the future was formed 
 of an individuality so volatile as Quain's. 
 
 The career of these two judges gives no 
 scope for anecdote. They were not witty or 
 original in themselves, nor the cause of either 
 quality in others, except possibly in regard to 
 their names. The general public, and especially 
 the writer for the press, long insisted that 
 Mr. Justice Archibald was called " Archbold," 
 a name voluminously attached to English legal 
 literature, and so indelibly associated with the 
 law as not to be easily displaced. The name of 
 Quain fell an easy prey to perversion. He was 
 made a judge in days when it was requisite 
 that he should be first admitted a serjeant. It 
 was the custom for Serjeants to present rings 
 with a motto, and as the serjeantcy of Quain 
 was purely by way of necessary qualification 
 for the Bench, it was suggested that his motto 
 should be " Sine qud -non." 
 
 Quain and Archibald lived in the palmy 
 days of the Queen's Bench, when there was
 
 PALMY DAYS OF THE QUEEN'S BENCH. 35 
 
 110 appeal, except in rare cases to the ample 
 bosom of the Exchequer Chamber, where the 
 decisions of the Queen's Bench would be re- 
 viewed by the friendly eyes of their brothers 
 of the Common Pleas and Exchequer, con- 
 scious that next week the Queen's Bench 
 would be performing the same kindly office 
 upon their decisions. In those days, all impor- 
 tant cases in the Queen's Bench were heard 
 before four judges, and Quain and Archibald 
 often sat with Blackburn and Cockburn. It 
 was this Court of four which tempered the view 
 held by lawyers that Scotland is a foreign 
 country, by deciding that, since English judg- 
 ments can be enforced in Scotland, Scotch 
 plaintiffs are no longer, like Frenchmen and 
 Germans, bound to give security for costs 
 when they sue in English Courts. It was 
 they, too, who succeeded in bringing to book 
 no less formidable a judge of an inferior Court 
 than Mr. Commissioner Kerr, when he showed 
 a tendency not to obey their orders unless he 
 approved them. The Commissioner, however, 
 by the mouth of Sir John Karslake, success- 
 fully asserted his right to the dignity of a,
 
 36 QUAIN AND ARCHIBALD. 
 
 mandamus, and would not be put off like a 
 County Court judge with an ordinary rule. 
 Sitting by themselves, Quain and Archibald 
 ' had the courage to order a new trial on the 
 application of the plaintiff in an action of 
 slander, in which the jury had given a farthing 
 as damages. 
 
 In the celebrated case of the Franconia, in 
 which the extent seawards of the jurisdiction 
 of the English Criminal Courts was argued 
 before fourteen judges, Archibald played a 
 remarkable part. He heard the argument, 
 and was believed to be in favour of the Crown, 
 but he died before judgment was delivered. 
 If he had lived, the Court would have been 
 equally divided. When a Court is divided, 
 junior judges often withdraw their opinions to 
 make a decision, but seldom has an opinion 
 been withdrawn in so solemn a way as in this 
 ease. Archibald was also a member of the 
 Court in the famous case of Riche v. AsJibury, 
 which afterwards went to the House of Lords, 
 and settled the law as to the acts which an 
 incorporated company may do within the 
 powers of its constitution.
 
 KNOWLEDGE AND SOUND JUDGMENT. 37 
 
 Quain and Archibald, so closely associated, 
 may be taken as fair examples of that class of 
 judge which, without adding lustre to the 
 Bench, supports it by knowledge and sound 
 judgment.
 
 KELLY. 
 
 1866-1880. 
 
 IN Kelly the office of Chief Baron came to 
 a dignified end. The Norman "baron" was 
 individually a man ; in his relation to woman 
 a husband ; and in his relation to the King 
 a King's man, a holder of King's land, a 
 member of the King's Council, a Parliament 
 man in which form he long survived in the 
 House of Commons as baron of the Cinque 
 Ports and finally a nobleman. 
 
 The barons of the Exchequer were members 
 of the Court of Kevenue, who sat at a table 
 crossed in squares like a chess-board for 
 reckoning accounts. The Lord Treasurer, or 
 First Lord of the Treasury, was a member, and 
 it had its Chancellor, which functionaries down 
 to the time of its disappearance sat in the 
 Court of Exchequer on the morrow of St.
 
 HER MAJESTY'S PECULIAR COURT. 39 
 
 Martin, and still sit on that day in the Queen's 
 Bench Division, which has absorbed it. The 
 routine business had long been handed over 
 to the Cursitor barons, a name surviving 
 among the purlieus of the law in Cursitor 
 Street, and from them to obscure officials, until 
 nothing of the ministerial side of the Court 
 was left except the naming of the Sheriffs, the 
 reception of the Lord Mayor of London, and 
 the swearing of the Chancellor of the Exchequer 
 to the due application of the secret service 
 money. Revenue causes between subjects and 
 the Crown still belonged to this Court exclu- 
 sively until 1881, when the legal arid cere- 
 monial functions of the Exchequer were merged 
 in the Queen's Bench. 
 
 The rightful jurisdiction of the Exchequer 
 in its character of " Her Majesty's peculiar 
 court," as Chief Baron Kelly loved to call it, 
 was in modern times less important than its 
 usurped jurisdiction. The barons reconciled 
 it with their consciences to hear all kinds of 
 cases, and reap a harvest of fees for themselves, 
 by allowing the plaintiff to say that he was 
 the King's debtor, and peremptorily forbidding
 
 40 KELLY. 
 
 the defendant to deny it. In this encroach- 
 ment it was no worse than its neighbours, 
 the Queen's Bench and Common Pleas, which 
 resorted to like devices. If its roll of names 
 does not equal in fame that of the rival 
 Benches, it held its own tolerably well, 
 especially at the close. 
 
 During the last century of its existence the 
 Exchequer had been the reputed home of 
 technicality and special pleading ; but. when 
 all is said, Barons Alderson and Parke had a 
 genuine sympathy with law not always con- 
 spicuous in their successors. Among the pre- 
 decessors of Kelly were Sir Matthew Hale, 
 Chief Baron Gilbert, the "Archbold" of the 
 libraries of his day, and Comyns, the author 
 of the " Digest." With Lyndhurst, Abinger, 
 Pollock, and Kelly in unbroken succession, the 
 office of Chief Baron ended well. 
 
 The career of Chief Baron Kelly was incom- 
 plete in one respect, and too complete in 
 another. He ought to have died a peer of 
 Parliament; and he ought to have left the 
 Bench four years before he died. 
 
 The reason why these two events were not
 
 NINTH OF NOVEMBER EHETOEIC. 41 
 
 brought about opens a chapter in the Chief 
 Baron's career which did him honour, and by 
 which probably his name will be best known 
 in history. The party to which the Chief 
 Baron had rendered good service was in power. 
 Kelly, it is true, had suffered pecuniary losses ; 
 but, as he had no son, his peerage would not 
 have called for an endowment. In investing 
 money as a trustee in the Agra Bank Kelly 
 had been guilty of a technical breach of trust, 
 and replacing it, which he did with alacrity, 
 had crippled his resources. Retired from 
 the Bench and a peer, he would have found 
 vent, without reproach, for those politic.il 
 utterances which, breathed on the 9th of 
 November into the ear of the Lord Mayor 
 from the Bench of a Court of justice, were out 
 of place. It can hardly be supposed that his 
 party were guilty of the ingratitude of for- 
 getting a man who had served them, but 
 whose services were no longer valuable. Lord 
 Beaconsfield, who possessed few more ardent 
 admirers than Kelly, had no reason for exclud- 
 ing him from the House of Lords. A man 
 who has filled, with applause, one of the
 
 42 KELLY. 
 
 highest offices of the law, has a well under* 
 stood claim to be elevated to the peerage. 
 Holker, the Conservative Attorney-General, 
 "would have been very glad to seek the repose 
 of the Chief Barony, and it w r as suggested 
 to Kelly that he should resign, that a Con- 
 servative might succeed him. If this idea 
 had been carried out, the amalgamation of the 
 Queen's Bench, Common Pleas, and Exchequer 
 Divisions, and the abolition of the chief- 
 ships of the two last divisions might have 
 been indefinitely postponed, and the course 
 of legal history might have been different, 
 as it was only the fortunate accident of 
 Kelly and Cockburn dying together within a 
 month that made it possible for Lord Selborue 
 to carry out the scheme at one blow. But 
 Kelly's terms were not accepted, and he was 
 rightly obdurate. 
 
 The explanation is to be found in the colli- 
 sion between the Chief Baron and Lord Cairns 
 in regard to the right of Privy Councillors sit- 
 ting on the Judicial Committee to publish the 
 opinion they had formed in particular cases. 
 
 The controversy arose out of one of the
 
 THE PRIVY COUNCIL CONTROVERSY. 43 
 
 ecclesiastical cases so numerous about the 
 middle of the century. Kelly took a deep 
 interest in the question, and in the year 1866 
 he, in consultation with Bovill, Coleridge, 
 James, Hannen, and Phillimore, all at the Bar, 
 and subsequently on the Bench, advised the 
 Church Union that wearing vestments was 
 authorized by the rubric. Ten years later, 
 he, as well as Lord Justice James, was a 
 member of the Judicial Committee who heard 
 the case of Ridsdale v. Clifton. Not long 
 after that decision Kelly fell into conversation 
 on the subject of vestments with Mr. Ellis, the 
 Sheriff's chaplain in one of the counties of the 
 North Wales Circuit, which he was travelling. 
 Kelly, with his usual candour, did not conceal 
 his opinions on the subject. He told the 
 chaplain that he dissented from the judgment 
 of the majority ; that he did not care who 
 knew it ; and that the judgment was policy 
 rather than law. The Sheriff's chaplain in- 
 cautiously wrote to the newspapers, with the 
 addition that Kelly had called the judgment 
 iniquitous. For a Privy Councillor to apply 
 that epithet to a judgment of his colleagues
 
 44 KELLY. 
 
 could not be passed over, and Kelly, in a letter 
 to Mr. Ellis, explained that lie had not used 
 it, but admitted the rest of the conversatioD, 
 "adding that he very much regretted that it 
 had appeared in a newspaper. The matter 
 might well have been allowed to drop there, 
 but the correspondence went to Lord Cairns, 
 the Lord Chancellor, who thereupon addressed 
 a severe admonition to the Chief Baron, stig- 
 matizing what he had done as a serious 
 departure from what had been considered the 
 obligation of a Privy Councillor. In order 
 to crush Kelly more effectually, he dragged 
 to light an ordinance of the Privy Council 
 of 1627, which forbade Privy Councillors 
 divulging " how the particular voices and 
 opinions went." This ordinance was published 
 nearly two hundred years before the Judicial 
 Committee was thought of, and no one sup- 
 posed that it referred to legal business. To 
 make assurance doubly sure, Lord Cairns, 
 in February, 1878, with the concurrence of no 
 other lawyer, but only of two dukes and two 
 subordinates of the Government, passed a fresh 
 ordinance applying the order of 1627 expressly
 
 LAGGING ON THE STAGE. 45 
 
 to judicial business. This high-handed pro- 
 ceeding was generally condemned, as well as 
 the policy of silencing judges which dictated 
 it. Kelly replied in a pamphlet, in which 
 he questioned the legality and expediency of 
 the whole proceeding. 
 
 Unless the judgment of legal history re- 
 verses the opinion of the day, the Chief Baron 
 was in the right ; and the resolution with which 
 he maintained his opinion, in spite of the injury 
 he knew he was inflicting on his personal in- 
 terests, was a proof of independence of spirit of 
 more value to his reputation than a peerage. 
 
 The Chief Baron was not allowed to retire 
 for the same reason that he was not allowed 
 the peerage. He no doubt did not feel inclined 
 to listen to overtures for his retirement unless 
 the offer of a peerage were a preliminary step. 
 The maintenance of an aged judge on the 
 Bench after the time has elapsed when he can 
 readily perform his duties, is bad judicial 
 economy. In such circumstances a retirement 
 even on full pay is a pecuniary saving, and, if 
 a condition of such retirement is a peerage, it 
 requires a strong reason to justify its refusal.
 
 46 KELLY. 
 
 It thus came about that Kelly will be 
 handed down to posterity as a veteran who 
 lagged too late upon the stage. It so hap- 
 'pened that he was some time past sixty when 
 he obtained his reward of promotion, and 
 there was the more reason why he should have 
 retired at the earliest period of service, when 
 it is usual for judges to retire. 
 
 As a survival, he represented the virtues and 
 the failings of a past judicial age. There could 
 hardly have been a better example of the stately 
 dignity which is among the things of the 
 past equally with ruffles and walking-swords. 
 Chief Baron Kelly was the only judge of 
 his time who came out becomingly from the 
 trying ordeal of walking up the nave of St. 
 Paul's in his full robes and with his train- 
 bearer behind him. Even to the last he had 
 nothing of the stiffness of age about him ; and 
 he used to boast that he felt as fresh and 
 active as a boy. A year or two before his 
 death he was walking home by the Marble 
 Arch on a foggy night, when just at Tyburn- 
 stone he was attacked by two garrotters. The 
 aged judge put his back against the railings
 
 OLD-FASHIONED FAULTS. 47 
 
 and kept them off with his stick until assist- 
 ance arrived. Though much bruised, he was 
 in Court again two days afterwards. 
 
 Kelly was by far the handsomest judge of 
 his day, and as he leaned back on his pillow on 
 a weary summer's afternoon at Westminster, and 
 gently slumbered, his pale face and finely cut 
 features might have belonged to a Greek statue. 
 
 His faults were of the old-fashioned kind, 
 in the sense that they were on the surface ; 
 and he did not deceive himself into think- 
 ing that he was serving high objects, when 
 he was really serving himself and his friends. 
 Chief Baron Kelly did not hold the opinion, 
 now everywhere professed in theory but fre- 
 quently disregarded in practice, that patron- 
 age is an absolute trust for the benefit of 
 the public. The public man who in dis- 
 pensing patronage openly acts on the prin- 
 ciple that he may serve his friends so long as 
 the public is not injured is less dangerous 
 and more honest than he who expresses the 
 most elevating principles, and does not act 
 up to them. 
 
 His absence of cynicism must also, unfor-
 
 48 KELLY. 
 
 tunately, be reckoned old-fashioned. Without 
 being credulous or easily deceived, he had 
 none of the undue suspiciousness which is a 
 ' bad development of the lawyer's character. 
 As a Tory of Tories, and as the head of a 
 Court with a great history and traditions, 
 almost the last remnant of which disappeared 
 with him, he was no friend of the great 
 changes taking place around him. The Court 
 of Exchequer perhaps suffered most of all the 
 Courts destroyed by the Judicature Act. The 
 name of the Queen's Bench still survives, and 
 the Common Pleas had not so interesting or 
 so distinctive a history as the Exchequer, in 
 which, after Kelly, was the deluge, as he well 
 knew would happen. 
 
 He did not oppose the Judicature Acts. 
 He simply ignored them, except in so far as 
 they altered the details of practice. It would 
 have been sacrilege to speak of the Exchequer 
 Division, the High Court of Justice, or the 
 Supreme Court of Judicature before him, and 
 he hardly condescended to smile when a 
 learned but unorthodox brother of another 
 Bench, referring to the shadowy nature of
 
 A "JUSTICE," OF THE EXCHEQUER. 49 
 
 these Courts, called them the three in- 
 comprehensibles. Nothing could exceed his 
 astonishment and indignation to be told when 
 he obtained a new puisne that his proper title 
 was Mr. Justice Hawkins. He simply refused 
 to allow him to be so addressed. If the ancient 
 and distinctive title of Baron was denied, he 
 should be called simple Sir Henry Hawkins, 
 a style by which he was always afterwards 
 addressed in the Exchequer, and is still known 
 among officials who served in that Court. 
 
 A trait distinguishing him from some of 
 his younger brethren was his grasp of general 
 principle in preference to decided cases. The 
 modern lawyer is too apt to run to his book- 
 shelves for a case which has some resemblance 
 to that in hand, although the resemblance is 
 frequently accidental. Of late years, some 
 powerful intellects on the Bench have been 
 directed to the task of breaking down this un- 
 healthy habit ; but still it is a vice of the 
 time. During his latter days, the Chief Baron 
 seldom professed a previous acquaintance with 
 any case that was cited to him less than forty 
 years old. He would examine a case, when 
 
 E
 
 50 KELLY. 
 
 cited, by the light of the principle involved, 
 and use it as an illustration in his judgment ; 
 but his knowledge of law was founded on 
 'general rules, and was unconnected in his 
 mind with an action which at such and such 
 a date was brought by A. against B. and de- 
 cided in a particular way, or with an obscure 
 passage in Comyn's " Digest." Kelly's appli- 
 cation of law appeared to be instinctive, so 
 deeply was he imbued with its elements. The 
 difficulty of making him understand the. facts 
 once surmounted, the law might be left to 
 take care of itself. If the Chief Baron differed 
 from his brethren, the chances were that he 
 would turn out right. In the case of Mor- 
 daunt v. Mordaunt, he differed from his col- 
 leagues in holding that the insanity of the wife 
 was no ground for withholding a divorce from 
 the husband, a view which was afterwards 
 upheld by the House of Lords. His summing- 
 up in Rubery v. Grant, an action for a libel 
 in the City article of the Times, was a model 
 of comprehensiveness. 
 
 The process of inserting the facts into his 
 mind was in his later days long and difficult,
 
 "WHAT IS THE DATE?" 51 
 
 and in the course of it the peculiarities for 
 which he was famous came out strongly. No 
 sooner was a fact, however unimportant, men- 
 tioned, than the Chief Baron immediately 
 asked, " What is the date ? " In the long 
 run he was right, as no story can be properly 
 appreciated except in order of time. Kelly, 
 however, made a good rule too common. He 
 had an absolute passion for dates, and some- 
 times when he demanded them on unnecessary 
 occasions put the counsel before him to the 
 task of inventing them. " Give him some 
 date," said a leader to his junior thus hard 
 pressed ; " any date will do to keep him quiet. n 
 At these times it was an interesting spectacle 
 to see how, when Kelly was perplexing a case 
 in Banco with endless repetitions and imma- 
 terial inquiries, Bramwell, his old pupil, sit- 
 ting on his right, would firmly and tenderly 
 take him in hand, and make all plain with a 
 few trenchant statements. 
 
 His style of speaking, never in his younger 
 days concise, developed in his age into tedious- 
 ness. " My good woman," he would say to a 
 witness, " you must give an answer, in the
 
 52 KELLY. 
 
 fewest possible words of which you are capable, 
 to the plain and simple question, whether, when 
 you were crossing the street with the baby on 
 your arm, and the omnibus was coming down 
 on the right side, and the cab on the left 
 side, and the brougham was trying to pass 
 the omnibus, you saw the plaintiff between 
 the brougham and the omnibus, or between 
 the brougham and the cab, or between the 
 omnibus and the cab, or whether and when 
 you saw him at all, and whether or not near 
 the brougham, cab, and omnibus, or either or any 
 two, and which, of them respectively or how 
 was it ? " In the course of arguments in Banco 
 he became garrulous, and his judgments were 
 very easy to take down. If any passage were 
 missed, the reporter had only to wait till he 
 came round to it again. Like a race run in 
 laps, Kelly's judgments always passed the post 
 several times. 
 
 Few lawyers had a more varied experience 
 of professional practice than Kelly. His 
 knowledge, acuteness, and eloquence were 
 often brought into requisition in the Chan- 
 cery Courts ; and he was engaged in many
 
 THE APPLE-PIPS. 53 
 
 important criminal cases, not only as a law 
 officer of the Crown but as defending counsel. 
 One of these was the trial for high treason of 
 Frost, whom Kelly defended in conjunction 
 with Pollock, his predecessor as Chief Baron. 
 Another was the prosecution of Tawell the 
 Quaker for poisoning. Kelly suggested in the 
 defence that the victim was poisoned by eating 
 too many apples, from which he received the 
 nickname of " Apple -pip Kelly," which clung 
 to him for some time. The necessity for 
 the rising lawyer to add politics to his pro- 
 fessional pursuits brought Kelly in contact 
 with persons and events from which he gained 
 some discredit. In spite of his culture and 
 great, if diffuse, eloquence, he was not a suc- 
 cess in Parliament, even as Attorney-General. 
 He was ambitious of being Chancellor, and 
 died a disappointed man. As a judge, the last 
 Chief Baron will not take rank among those 
 who made law or expounded it with undis- 
 puted authority on every subject touched, but 
 he filled his high office worthily, and is remem- 
 bered with respect and affection by those who 
 come after him.
 
 CLEASBY. 
 
 1868-1879. 
 
 BARON CLEASBY was the most amiable charac- 
 ter of his day on the Bench. The love which 
 his brother judges bore him was not marred by 
 any of those feelings of rivalry or jealousy 
 which sometimes flutter even the judicial 
 breast. His self-effacement was incapable of 
 exciting jealousy, and no one could be the 
 rival of a man who thought so little of him- 
 self. He was always ready to take a turn at 
 somebody else's work, and when asked an 
 opinion on a perplexing point of law would 
 give up his time to consider it, and send his 
 learned brother away comforted, knowing that 
 he had the best opinion of a man whose 
 opinion was worth having. 
 
 In appearance he was tall, thin, and lantern-
 
 UNASSUMING TALENT. 55 
 
 jawed, and his gait was disfigured by a 
 lameness which gave a ludicrous turn to the 
 dignity of his judicial robes as he limped into 
 Court. In his youth at Eton he had been an 
 athlete ; but before he reached manhood, he 
 caught a chill at Ramsgate, had a fever, and 
 developed a condition of body which, aided 
 by a blow from a cricket ball, ended in an 
 abscess in the hip-joint. 
 
 To the end of his days he was fond of 
 sport, and a good shot. He was rich, having 
 inherited a fortune from his father, a Russian 
 broker. He belonged to a good Yorkshire 
 family, settled near Darlington. He was a 
 third wrangler and first-class in classics, an 
 admirable linguist and a good musician, and 
 he was a judge. Yet, with all this, he was the 
 most unassuming man that could be. 
 
 In politics he was a strong Tory. Twice 
 he contested Surrey, and in 1868, after 
 unsuccessfully contesting Cambridge Univer- 
 sity, which in those days returned a Liberal, 
 he achieved his judgeship. To have fought 
 and lost sometimes gives a better claim to 
 consideration from party leaders than to have
 
 56 CLEASBY. 
 
 won, and so Cleasby was made a judge by 
 Lord Cairns, when three new judges were 
 added to strengthen the Common Law Courts 
 for the trial of election petitions. 
 
 Cleasby never had much practice at the Bar. 
 His manners were too mild for the boisterous 
 air of Nisi Prius on the Northern Circuit, and 
 he was too timid for a cross-examinant. What 
 business he had was mostly in Banco, and that 
 scene was most congenial to him when on the 
 Bench. 
 
 No one ever encountered a harsh word from 
 Cleasby, except that he had a way of sternly 
 rebuking prisoners for the enormity of their 
 crimes, and finishing with a ridiculously small 
 sentence. " You are one of the worst men I 
 ever tried," Cleasby would say, "and the 
 sentence of the Court is that you be im- 
 prisoned for one month." 
 
 So it came about that he was not only 
 popular with the Bench and the Bar, but with 
 criminals. "You are committed for trial," 
 said a magistrate to a ruffian who was up for 
 his fourth case of housebreaking, " and you 
 may choose whether you are tried at the
 
 "THE JUDGE FOR ME." 57 
 
 quarter sessions next week, or a month 
 hence at the assizes." " Who is the judge 
 of 'soize?" asked Sykes. " Baron Cleasby," 
 said the magistrates' clerk. " Oh, I'll go to 
 'soize," returned the criminal, with alacrity. 
 " Cleasleby is the judge for me." It was 
 with feelings of pain that he sentenced 
 O'Connor, the half-witted assailant of the 
 Queen, to be whipped, although it was only 
 with twenty strokes of a birch rod. 
 
 He died in his seventy-fifth year, in October, 
 1879, having retired from the Bench in the 
 previous January. He was thus, although 
 officially among the younger judges, yet in 
 years among the oldest. For some time his 
 health had not been good. His increased 
 lameness debarred him from taking the exer- 
 cise which in more active days he deemed 
 indispensable, and he had fallen a prey to 
 bronchitis. 
 
 As a judge, no man was ever more anxious 
 to do right, more patient, or more laborious. 
 His faults were extreme caution and slowness at 
 Nisi Prius and in criminal trials, and in Banco 
 too great an aptitude for the part of dissenting
 
 58 CLEASBY. 
 
 judge. His virtues were his great learning, 
 modestly concealed, but extending very far 
 beyond the modicum, which does duty on the 
 Bench ; his accurate judgment on abstruse 
 points of law ; and his sound practical sense. 
 Investigation of his judicial life would reveal 
 more than one example of his disagreement 
 with the majority of his brethren in the 
 Exchequer or in the old Exchequer Chamber, 
 and of the vindication of his opinion by the 
 House of Lords. For example, the opinion 
 which he, in conjunction with Willes, main- 
 tained against Chief Justice Bovill, Montague 
 Smith, and Blackburn, that an agent employed 
 to buy cannot sell his own goods without dis- 
 closing the fact, in spite of a custom of the 
 tallow market to that effect, was sustained in 
 the House of Lords. The more intricate the 
 point of law at issue, the more likely Cleasby 
 was to be right. In fact, that type of intellect 
 which at the University of Cambridge won for 
 him his high honours and a fellowship at 
 Trinity College made him at home with the 
 science of law. On the other hand, he was 
 not as ready and quick in matters of practice,
 
 ONE UNKIND WORD. 59 
 
 points of evidence, and Nisi Prius tricks as 
 many men of far less mental calibre. Cleasby's 
 demeanour to the Bar never produced the 
 slightest syllable of complaint. The younger 
 members of the profession, when he retired, 
 missed that uniform forbearance, kindness, and 
 attention which are not always extended to 
 counsel unknown to fame. Once, and once 
 only, during the ten years that he was a judge, 
 was Cleasby ever known to say anything un- 
 kind, and that was under his breath, in the 
 hearing only of a brother. In a criminal 
 trial on Circuit he had to endure a long and 
 not very pertinent speech from a great defender 
 of prisoners. His brother-judge looking in at 
 the door behind his seat, overheard him say, 
 plaintively, " Oh dear, oh dear, what will he 
 say next ? " For serenity of temper, pleasant 
 address, readiness to listen, and anxiety to do 
 justice, Cleasby was conspicuous ; but perhaps 
 his greatest characteristic was the universal 
 affection he inspired.
 
 WILLES. 
 
 1855-1872. 
 
 WILLES had the reputation of being the most 
 learned judge of his day. His only rival in 
 this claim was Blackburn, and he was fonder 
 of displaying " black letter " than his almost 
 equally learned brother. There was even an 
 impression at the Bar that Willes would lead 
 the argument in such a direction that he might 
 carelessly throw out a carefully prepared 
 reference to Bracton or the Mirror. He would 
 sometimes unnecessarily crush the argument 
 of a young aspirant at the Bar by telling him 
 that what he argued had been decided the 
 other way in the fifteenth century, as reported 
 in the Year-books. 
 
 If there was considerable affectation of learning 
 in Willes's intellect, there was some affectation
 
 PEDANTIC APPEAKANCE. 61 
 
 of antiquity in his person. In his later days, 
 his grave, cadaverous face, set off by a short 
 grey beard, might have belonged to an Eliza- 
 bethan judge. He was the only man in West- 
 minster Hall who tied the strings of his black 
 robe properly. Generally these strings are to 
 be seen flying out at the back of the wearer 
 like the ribbons of a Highland piper, and the 
 result is that when he sits down the robe falls 
 off the back in a neglige style, much affected 
 by barristers at the Old Bailey, but tabooed in 
 Westminster Hall. Willes always wore his 
 ribbons crossed over his white bands in a 
 comely fashion, and thence passed behind his 
 back under the gown, and tied round his 
 waist. His language was quaint and formal, 
 and as he spoke he chewed his lips, as if what 
 was in him was of so much value that his 
 mouth reluctantly allowed it to pass. 
 
 He looked a pedant, but he was not. When 
 he came to sum-up at Nisi Prius, he showed 
 all the aptitude and acuteness of a man of 
 the world. His sternness, too, was only out- 
 side. The day before his melancholy death, 
 which cut short a great and useful career, he
 
 62 WILLES. 
 
 was engaged in writing to recommend to 
 mercy a man he had sentenced, because he was 
 young and a sailor. 
 
 The prodigious learning which Willes pos- 
 sessed was only attainable by a lifetime of 
 hard work. It began at Trinity College, 
 Dublin, for Willes belonged to that large 
 family of successful men who are born in 
 Ireland of English extraction, and who, like 
 East India sherry, would seem to come back 
 all the better for having crossed the sea. It 
 continued when he came to London and 
 worked in the chambers of Tom Chitty, the 
 pleader. He made himself so useful that 
 Chitty hired him as his assistant at a salary, 
 as Campbell was hired by Tidd. Willes is 
 reported at this time to have sat up half the 
 night reading, with wet towels round his head 
 to keep himself awake, according to the plan 
 which the excellent Lord Hale commended to 
 young lawyers. In the grey morning, he 
 would take constitutional exercise round the 
 Temple Gardens, where he would meet, bent on 
 the same errand, John William Smith, a very 
 learned lawyer, and the best of the text-book
 
 EOMANCE. 63 
 
 writers of the day. From the intimacy thus 
 begun, it came about that Willes became editor 
 of Smith's " Leading Cases " in conjunction 
 with Keating, another successful Irish reim- 
 portation, who afterwards sat beside him on the 
 Bench. In Chitty's chambers Willes learned 
 much more than Chitty could teach him, and, 
 in fact, fathomed all the mysteries of special 
 pleading, or the art of conducting actions out 
 of Court, and gained a reputation for skill and 
 profundity in this branch of knowledge which 
 led to his being appointed a member of the 
 Common Law Procedure Commission, and 
 eventually to the Bench. One of Chitty's sons 
 married Willes's sister. 
 
 He was not free from the domestic eccen- 
 tricities which affect profoundly learned men. 
 A conveyancer is said to have one day married 
 a wife, and after the ceremony to have begged 
 leave to go to Lincoln's Inn on pressing busi- 
 ness. Arrived there, he straightway forgot the 
 happy event of the day, and becoming immersed 
 in a peculiar complication of contingent re- 
 mainders, did not arrive home till early next 
 morning, to the alarm of the deserted bride.
 
 64 WILLES. 
 
 Willes, in the days of his youth, before 
 Littleton and Sheppard had absorbed his 
 romance, fell in love with a lady at Cork, 
 where his father lived. They were engaged to 
 be married when he went to London to seek 
 his fortune. But learning was not highly 
 remunerated, and it was out of the question 
 that a poor special pleader should marry. 
 Willes joined the Home Circuit, and his name 
 began to be known ; but when it was sug- 
 gested from Ireland that he must be rich 
 enough to marry, Willes was unable to agree. 
 Even when he was appointed a member of the 
 Commission, this was rather a tax on his time 
 than a source of income. At last Willes 
 was made a judge. Now, the salary of a 
 judge can be learned from an almanac, 
 and it must be confessed that, though not 
 princely, it is enough to keep a wife upon. 
 Willes had no longer the excuse of poverty. 
 As a lawyer he knew the force of a contract, 
 while a judge could hardly stand the brunt of 
 an action for breach of promise of marriage. 
 This is the tale accredited among lawyers of 
 such romance as there was in Willes's life.
 
 COMMON LAW PROCEDURE. 65 
 
 Willes earned his judgeship in the Common 
 Law Procedure Commission and in drafting 
 the Acts which they recommended. What 
 was wanted was some one to bring to 
 the light of day all the chicanery of the 
 ancient system. An adept in that art of 
 special pleading which made clients the sport 
 of the lawyers, so that success turned less on 
 the justice of the cause than on the adroitness 
 with which it was handled, Willes, by sub- 
 stituting a new system, destroyed the source 
 of his gains, and therefore was entitled to the 
 compensation of a seat on the Bench, which 
 he received from Lord Cranworth at the age 
 of forty-one. With the help of Bramwell, he 
 succeeded in drafting the Acts which for 
 twenty years governed the practice of those 
 Courts. 
 
 A simpler, better, and more logical system 
 was probably never invented ; but nowadays 
 few legal institutions last long. The common 
 law procedure having been purified by itself 
 in one flagon, and the Chancery procedure in 
 another, it became necessary to pour one into 
 the other, in order that both law and equity,
 
 66 WILLES. 
 
 and the proceedings in both sets of Courts, 
 might be one. It so happened that those to 
 whose hands the task fell were equity lawyers, 
 and the Chancery flagon was chosen to hold 
 both. The result is that diffuseness and 
 irrelevancy reign, and the pleadings on each 
 side are no longer a neat and logical statement 
 of material facts and those only on which the 
 law allows reliance to be placed. 
 
 Willes, however, did not live to see this 
 change. He sat in the Common Pleas as the 
 right hand of Erie and Bovill, and with Keat- 
 ing, his early fellow-labourer, by his side. He 
 was among the first of the judges who tried 
 election petitions under Disraeli's Act, and he 
 did the work with an aptness of definition and 
 a justness in the application of principles which 
 laid a good foundation for his successors. His 
 unrivalled reputation for learning, his freedom 
 from prejudice, and his 'logical force made his 
 decisions in all branches of the law always 
 respected and seldom questioned. He attained 
 the honours of a Privy Councillor much 
 coveted by puisne judges. Sixteen years on 
 the Bench had given him a ripe experience ;
 
 SUDDEN DEATH. 67 
 
 but he was not yet sixty years old, and many 
 more years of usefulness and celebrity were 
 before him, when suddenly it was announced 
 that he had met his death by his own hand. 
 
 Willes had returned from the Summer 
 Assizes on the Northern Circuit of 1872, 
 rather overtasked by the work which he had 
 gone through, and he retired to his home at 
 Otterspool, near Watford. He tried to in- 
 vigorate himself with exercise, and the day 
 before his death had been boating on the Colne, 
 which skirts the garden of the house. The 
 only distraction he could find was to read 
 German. His clerk, who had been invited to 
 stay with him, found that he suffered more 
 than usually from absence of mind, and there 
 was a strangeness in his manner. In the early 
 morning of October 1, 1872, he was found in 
 his dressing-room shot through the heart with 
 a pistol which was lying beside him. 
 
 The doctor who attended him, and saw him 
 the day before, was, besides the clerk, the only 
 witness called at the inquest. He said that 
 the judge was always of a weak constitution, 
 and latterly suffered from gout, which affected
 
 68 WILLES. 
 
 the heart, and which, from his manner on that 
 day, had apparently touched the brain ; and 
 ,the jury found that he had shot himself while 
 not of sound mind. 
 
 There were still ingenious persons who 
 thought that a mystery hung over the death 
 of Willes ; not that he did not commit suicide, 
 but that there was a direct cause for his death. 
 These reasoners put their finger on a passage 
 in the evidence of the clerk, that he heard a 
 "fall and a scream" from the judge's room. 
 Upon this single fact misplaced acuteness fas- 
 tened, but persons of sobriety of mind saw in 
 the death of Willes only the collapse of a great 
 intellect, due to life-long devotion to study. 
 
 Any fine-spun theories suggested by his 
 death were forgotten in the deep regret at 
 the premature loss of a man of whom every 
 one was proud. The cases which he decided 
 range over every branch of the common law. 
 One of his decisions which, in days of crowded 
 life, has had a widespread effect, was Inder- 
 maur v. Dames, a case in which he held the 
 proprietor of premises concealing a danger in 
 the nature of a trap, such as the unfenced well
 
 HALF-PAST TEN. 69 
 
 of a lift, liable in damages for the injury of 
 any person who comes upon them by his 
 invitation. He was fond of illuminating his 
 judgments by references to the older autho- 
 rities ; and in imposing liability for mischief 
 to game upon the ow T ner of a dog who was 
 a confirmed poacher, he brought to light from 
 the Year-books an authority of the reign of 
 Edward IV. 
 
 His opinion, prepared for the benefit of the 
 House of Lords, to the effect that the Mayor's 
 Court of London is an inferior Court, is a 
 monument of research and learning. 
 
 One innovation introduced by Willes seriously 
 affected the habits of lawyers. He was one 
 of the first of the judges to live out of 
 town, and the consequence was that the Court 
 of Common Pleas could not be formed till 
 half-past ten o'clock, instead of ten, as there- 
 tofore. The other Courts at Westminster 
 gradually followed suit ; and when law and 
 equity were fused, the common law, contrary 
 to all precedent, and not the equitable rule 
 of early to work, prevailed, and now all the 
 Courts sit at half-past ten.
 
 70 WILLES. 
 
 In the case of Berry v. Da Costa, Willes 
 laid down the rule of damages which has 
 governed ever since in actions for breach of 
 promise of marriage aggravated by seduction. 
 The jury may compensate for the loss of the 
 prospect of marrying and for the mortification 
 to the feelings brought about by the seduction 
 as well as for the loss of the match. In 
 dismissing the question whether women could 
 vote, Willes said that " it would be quite 
 inconsistent with one of the glories of our 
 civilization, the respect and honour in which 
 women are held," and cited Littleton, Selden, 
 and Lambard. 
 
 In the midst of the busy and exhausting 
 labour of modern times at the Bar and on the 
 Bench, Willes was an example of profound 
 learning which would have done credit to a 
 more studious and leisurely age.
 
 BYLES. 
 
 1858-1873. 
 
 BYLES was a most successful advocate at the 
 Bar, a learned lawyer as barrister and judge, 
 and a conspicuous authority on one branch of 
 legal study. " Byles on Bills " for accuracy 
 and clearness is among the best law books in 
 the English language. Lawyers and judges 
 have for years turned to it for information 
 with absolute confidence. It is not too much 
 to say that without it the late codification of 
 the law of bills of exchange would have been 
 impossible. 
 
 Byles took an interest in this book up to 
 a very few weeks of his death. A question 
 whether its copyright had not been infringed 
 was referred to him to decide whether any 
 and what proceedings should be taken. The
 
 72 BYLES. 
 
 matter was amicably arranged, but the in- 
 cident is curious, as showing that one of his 
 last acts was in vindication of the book which 
 ~in the future will be his chief title to fame. 
 
 Byles was thirty years of age before he was 
 called to the Bar, and up to that he had been 
 in business. His business experiences, perhaps, 
 suggested to him the production of a book on 
 one of the most important branches of com- 
 mercial law. The success of the book still 
 further determined the bent of his legal studies 
 and practice. He became a good commercial 
 lawyer, but he never gained any great reputa- 
 tion in other branches of the law, although in 
 all he did he was famous for his practical 
 shrewdness and common sense. His mind 
 wanted that breadth and clearsightedness 
 which are essential to the intellectual equip- 
 ment of a great lawyer, who is to lay down 
 propositions of universal application. He will 
 never take the place filled by James, Willes, 
 or Jessel ; but will always be known as Byles 
 on Bills, a result to which the " artful aid " of 
 alliteration conduces. 
 
 Byles belonged to a school of lawyers which
 
 ASTUTENESS. 73 
 
 has now long disappeared. He was old enough 
 to have been Queen's Serjeant, and to have 
 sat in the Court of Common Pleas as one of 
 the privileged few who had audience there. 
 He lived in the days of special pleading, when 
 adroitness in manoeuvring won cases oftener 
 than the merits of the case. Practitioners of 
 to-day sometimes express wonder how any one 
 could have gone to law in those days only 
 to see the issue turn on some unintelligible 
 technicality ; but the fact is that men then, 
 as now, went to law, except when reputation 
 might be concerned, mainly for the excite- 
 ment of the contest and the prestige of 
 winning. They did not care how they beat 
 their adversary so long as they beat him. In 
 this kind of warfare Byles was thoroughly at 
 home. 
 
 Instances of his astuteness in advocacy 
 were numerous. His mode of winning cases 
 was not by carrying juries with him in a 
 storm of eloquence, or cross-examining wit- 
 nesses out of Court, but by discovering the 
 weak point in his adversary's case and tripping 
 him up, or by the nice conduct of such
 
 74 BYLES. 
 
 resources as his own case possessed. Once he 
 was for the defendant in an action for breach 
 of promise of marriage. The plaintiff proved 
 the promise to marry, and that the defendant 
 had married some one else. The case seemed 
 a question of damages, but Byles put two 
 questions to the plaintiff: "Did not he pro- 
 mise to marry you when his father was dead ? " 
 "Yes." "Is his father dead?" "No." 
 "That is my case, my lord," said Byles. 
 " But, brother Byles," said the judge, " he has 
 married some one else ! " " Well, my lord," 
 said Byles, " his wife may die before his 
 father, or afterwards, and he may outlive them 
 both, when it will be time to fulfil the pro- 
 mise." The plaintiff had, in fact, alleged in 
 his pleadings an absolute promise, and the 
 proof of a conditional promise was what was 
 called a fatal variance, which could not be 
 amended. Some years afterwards a similar 
 case from the Oxford Circuit came before the 
 Court of Queen's Bench, when, in happier legal 
 times, the defendant was not so fortunate. It 
 was held that by marrying again he repudiated 
 the whole engagement, so that the plaintiff
 
 "HE CANXOT MISS IT." 75 
 
 need not await the fulfilment of the condition, 
 but might sue at once. On another occasion 
 he was retained for the defendant with Mr. 
 (afterwards Mr. Justice) Willes, whom he led 
 at the Bar, but who was afterwards his senior 
 in the Court of Common Pleas, in a case of 
 some complication tried before Chief Justice 
 Jervis. At the end of the day (Saturday), Mr. 
 Byles submitted that there was no case, and 
 the judge rose to give his decision next week. 
 In the interval, Willes asked Byles why he did 
 not take a particular point which both had 
 agreed in consultation to be fatal to the 
 plaintiff's case. " I left that to the Chief 
 Justice," said Byles ; " I led up to it, and 
 walked round it, so that he cannot miss it, 
 but if I had taken it he would have decided 
 against us at once." And so it proved, for on 
 Monday morning the Chief Justice gave an 
 elaborate judgment overruling all the points 
 taken on both sides, but nonsuiting the plain- 
 tiff on a ground which, he said, he was 
 astonished to find had not been taken by either 
 of the very learned counsel for the defendant, 
 but which, in his opinion, was conclusive.
 
 76 BYLES. 
 
 In another case Byles was for the plaintiff, 
 and Edwin James for the defendant in an 
 action on a bond tried before Chief Justice 
 Tindal. Byles was a long time in opening his 
 case and examining his witnesses, until the 
 Chief Justice became restless. Still more 
 restless was Edwin James, who wanted to 
 go elsewhere. Byles, seeing his impatience, 
 whispered to him, " Give me judgment for the 
 principal, and I will let you off the interest." 
 Accordingly a verdict was taken for the plain- 
 tiff for the amount of the bond without in- 
 terest. Afterwards Edwin James asked Byles 
 why he had foregone the interest. " You 
 need only have put in the bond," said he, 
 " and you would have had both." " That was 
 just the difficulty," said Byles, " the bond was 
 not in Court." In those days adjournments 
 were not so easily granted as now, and in any 
 case the costs of the day would have exceeded 
 the interest. 
 
 Another example of his skill in the art of 
 making concessions occurred in a case in 
 which he was opposed to Cockburn. Byles 
 was for the plaintiff in an action of debt
 
 " WHY THIS CANDOUR ? " 77 
 
 brought against a person who was said to be 
 a lunatic. Cockburn proceeded to cross-ex- 
 amine the plaintiff to show the defendant's 
 insanity, whereupon Byles politely interposed, 
 and said that he would save his learned friend 
 the trouble of cross-examining on this point, 
 and would admit the lunacy of the defendant. 
 Upon that, Cockburn sat down. When the 
 evidence was closed, and Byles addressed the 
 jury, he claimed and obtained the verdict on 
 the ground that no doubt the defendant was 
 insane, but it had not been shown that the 
 plaintiff knew it. Byles, however, did not 
 retain this verdict, and at the hearing of 
 the motion for a new trial, when it was set 
 aside, Cockburn read from his brief the note 
 he had made in the margin opposite Byles's 
 admission. It was this : " Why this candour 
 in brother Byles ? " The trap was suspected, 
 but not seen in time. 
 
 A reputation for successes like these made 
 Byles a formidable adversary. On one occa- 
 sion at Norwich he had for an opponent a 
 counsel whose strong point was advocacy 
 rather than law. Byles, who was for the
 
 78 BYLES. 
 
 defendant, went into Court before the judge 
 sat, and in the presence of his opponent he 
 called to his clerk, " What time does the mid- 
 day train leave for London ? " " Half-past 
 twelve, sir." " Then, mind you have every- 
 thing ready ; and meet me in good time at 
 my lodgings." "But, serjeant," said the 
 plaintiff's counsel, " this is a long case ; it will 
 last at least all day." " A long case 1 " said 
 Byles ; " it will not last long ; you are going 
 to be non-suited." The advocate, who stood 
 much in awe of his opponent's legal skill and 
 knowledge, spoke to his client. The result 
 was that the case was settled for a moderate 
 sum, and Byles caught his train. 
 
 In several of the stories told of Byles when 
 at the Bar and on the Bench his horse figures 
 conspicuously. When he was at the Bar, 
 he had a horse, or rather a pony, which used 
 to arrive at King's Bench Walk every after- 
 noon at three o'clock. Whatever his engage- 
 ments, Mr. Byles would manage by hook or 
 by crook to take a ride, generally to the 
 Kegent's Park and back, on this animal, the 
 sorry appearance of which was the amusement
 
 "OUT ON BUSINESS." 79 
 
 of the Temple. This horse was sometimes 
 called " Bills," to give opportunity for the 
 combination " there goes Byles on Bills ; " but 
 if tradition is to be believed, this was not the 
 name by which its master knew it. He, or 
 he and his clerk between them, called the 
 horse " Business ; " and when a too-curious 
 client asked where the Serjeant was, the clerk 
 answered with a clear conscience that he was 
 " out on Business." 
 
 When on the Bench, Mr. Justice Byles's 
 taste in horse-flesh does not seem to have im- 
 proved. It is related of him that in an argu- 
 ment upon section 17 of the Statute of Frauds, 
 he put a case by way of illustration to the 
 counsel arguing. " Suppose, Mr. So-and-so," 
 he said, " that I were to agree to sell you my 
 horse, do you mean to say that I could not 
 recover the price unless" and so on. The 
 illustration was so pointed that there was no 
 way out of it but to say, " My lord, the 
 section applies only to things of the value of 
 ten pounds," a retort which all who had ever 
 seen the horse thoroughly appreciated. 
 
 Byles was a strong Tory (he once wrote a
 
 80 BYLES. 
 
 book on " The Sophisms of Free Trade "), and 
 he had a horror of Judicature Acts, the fusion 
 of law and equity, and other innovations 
 which were floating in the air in 1873. He 
 declared that he would not remain an hour 
 longer on the Bench than his fifteen years. 
 On the first day of Hilary Term, 1858, he took 
 his seat on the Bench of the Court of Common 
 Pleas, and on the first day of Hilary Term, 
 1873, his resignation arrived, and he retired 
 to enjoy his ease and the considerable fortune 
 which he had amassed. The time was incon- 
 venient for the appointment of a new judge, but 
 the judge could not resign before, and he would 
 not wait a moment after. His acuteness and 
 homely sense often took a humorous turn. Once 
 when he was trying a prisoner for stealing, a 
 medical witness was called, who said that in 
 his opinion the accused was suffering from 
 kleptomania, " and your lordship, of course, 
 knows what that is." " Yes," said Byles 
 quietly, " it is what I am sent here to cure." 
 He performed his judicial work with great 
 conscientiousness, and in his latter days, when 
 he fell into the last stage which ends the
 
 LATTER DAYS. 81 
 
 history, he was sometimes troubled with the 
 idea that he would have to sum up to a grand 
 jury or go to Guildhall next morning, and 
 was not prepared. When these fits were on 
 him he would fight his battles over again, as if 
 he were still in his place on the Bench. He 
 lived ten years after his retirement in peace 
 and quiet at his house near Uxbridge. with an 
 occasional visit to London to sit on the Judi- 
 cial Committee. He amused his last days with 
 theology, and wrote a religious book ; and 
 when he died he left a fortune of more than 
 200,000. His name is not connected with 
 many great decisions, but he tried the Rev. 
 Mr. Watson, the clergyman and schoolmaster 
 who murdered his wife, and whose sentence 
 was commuted on the ground of insanity. 
 At the beginning of the trial a juryman 
 ventured to express the hope that the case 
 would be made as short as possible. Byles 
 sternly rebuked such a request at a time when 
 the prisoner's life was at stake. Mr. Denman, 
 who prosecuted, informed the juror that the 
 judge was least likely to waste time, as he 
 wrote shorthand. 
 
 a
 
 82 BTLES. 
 
 He took a very characteristic part in the 
 decision of Chorlton v. Lings, in which it 
 was held that women did not obtain Parlia- 
 Ihentary votes by the Representation of the 
 People Act, 1867, in virtue of the new fran- 
 chise conferred on " every man." His judg- 
 ment is an example of his quaint and old- 
 fashioned judicial style. "No doubt," he 
 says, " the w r ord ' man ' in a scientific treatise 
 on zoology or fossil organic remains would 
 include men, women, and children, as consti- 
 tuting the highest order of vertebrate animals. 
 It is also used in an abstract aud general sense 
 in philosophical or religious disquisitions. But 
 in almost every other connection the word 
 'man' is used in contradistinction to 'woman.' 
 . . . Women for centuries have always been 
 considered legally incapable of voting for 
 members of Parliament, as much so as of 
 being themselves elected to serve as members. 
 In addition to all which, we have the unani- 
 mous decision of the Scotch judges. And I 
 trust their unanimous decision and our unani- 
 mous decision will for ever exorcise and lay 
 this ghost of a doubt, which ought never to 
 have arisen."
 
 MARTIN. 
 
 1850-1874. 
 
 MARTIN on the Bench was like a rough and 
 healthy breeze in an overladen atmosphere. 
 His personality did not, as is often the case 
 with judges when they retire, begin quickly to 
 fade. His strongly marked individuality, im- 
 pressed by long service, lingers in the memory 
 in a manner not quickly erased. He was 
 twenty-three years one of the expiring race of 
 barons of the Exchequer ; and he possessed a 
 character which would have been prominent 
 in any station of life, and which, from his 
 having so little of the conventional judge 
 about him, made him a very marked figure on 
 the Bench. 
 
 A . large - framed, carelessly dressed man, 
 speaking plain common sense in homely lan- 
 guage, and with a brogue which he would
 
 84 MARTIN. 
 
 have thought it affectation to conceal, he ap- 
 peared before the world, whether at the Bar 
 j>r on the Bench, just as he was. He had no 
 pretension to the arts of advocacy at the Bar, 
 and he was a man of little learning ; but the 
 secret of his success, both as judge and advo- 
 cate, was such as to make him a genius in his 
 way. He had a marvellous instinct for what 
 was the right thing to be done. This, added 
 to his plain directness of speech and manner, 
 little like the usual circumlocution of lawyers, 
 was the cause of his success in commercial 
 cases on the Northern Circuit, and of the value 
 placed on his opinion when on the Bench. 
 The only favour he obtained at the Bar was 
 from his marriage with the daughter of Chief 
 Baron Pollock. Pollock was supposed to show 
 his partiality in an obvious manner. On one 
 occasion Martin was for the Crown against 
 Thesiger (afterwards Lord Chelmsford) for the 
 defendant in an action tried before Pollock. 
 In the course of the case, Thesiger rose and 
 declared with warmth that it was impossible 
 for counsel to do his duty in that Court when 
 he had Mr. Martin as his opponent.
 
 "NO BUSINESS THERE." 85 
 
 Martin may have been wrong in the way 
 in which he did things ; but he was seldom 
 wrong in the result. One of the numerous 
 stories told of him well illustrates this felicity 
 of his. At the Guildford Assizes, an action 
 came before him in which the plaintiff sued 
 a railway company for damages caused by 
 a mob on a crowded platform pushing him 
 against the train. The learned baron, whose 
 conscience sometimes pricked him in that he 
 visited the racecourse perhaps a little oftener 
 than a judge should, explained to the jury 
 that the same thing happened to him every 
 year at the Victoria Station on his way 
 to the Derby, and added, " I never think of 
 bringing an action, gentlemen ; it serves me 
 right, as I have no business there." The 
 nonsuit which he thereupon directed was set 
 aside by the Court in Banco without any diffi- 
 culty ; but, when the case came on for trial 
 a second time, Mr. Justice Brett presiding, 
 the jury found for the defendants so that the 
 learned baron was right in the long run. 
 
 A deeper prescience seems to have dictated 
 his manner of treating a railway company
 
 86 MARTIN. 
 
 which pleaded to an action for the loss of 
 cattle that " they were carried at owner's 
 _risk for less freight." "You had the man's 
 money," he would say, " and you killed his 
 beasts ; why don't you pay him for them like 
 honest men ? " This was, at the time, bad 
 law, if sound morality ; and it was not until 
 a few months before his death that the Court 
 of Appeal decided, in Brown v. The Man- 
 chester, Sheffield, and Lincolnshire Railway 
 Company, that the offer of an alternative 
 rate does not necessarily make the condition 
 to exempt from liability reasonable, as the 
 statute requires it to be. 
 
 Martin's breadth of view verged sometimes 
 on the grotesque when carried into the small 
 details of practice. He not infrequently sat 
 at Judges' Chambers, and on one occasion he 
 was asked to make an order for interrogatories, 
 which in those days was always necessary in 
 the common law courts. " How many are 
 there ? " asked the baron, without looking at 
 them. " Twenty," was the reply. " I shan't 
 make an order for a man to answer twenty 
 interrogatories," rejoined the judge. "You
 
 "NEVER MIND THE ACT." 87 
 
 may ask him half a dozen, and take which 
 you please." 
 
 In more important matters his insight into 
 equity often led him right when others went 
 astray. In Smyth v. North, Barons Martin 
 and Pigott, notwithstanding the dissent of 
 Baron Bramwell, held the view, which is now 
 considered orthodox, that the word " sur- 
 render " in regard to the disclaimer of leases 
 under the Bankruptcy Act has a sense of its 
 own and not the legal sense. 
 
 On occasion he would prefer his native 
 knowledge of law even to the express terms of 
 an Act of Parliament. On his last Circuit at 
 Lewes, a partner was committed for trial for 
 stealing partnership money. In charging the 
 grand jury, Martin told them to throw out the 
 bill. " Whoever heard," he asked, " of a man 
 stealing his own money ? It cannot be, gen- 
 tlemen." The clerk of arraigns stood on his 
 seat to hand up the judge the Act of Parlia- 
 ment making it a felony to steal partnership 
 money, but Martin would not pay any atten- 
 tion. " Never mind the Act of Parliament, 
 Mr. Avory ; take it away. The man who
 
 88 MARTIN. 
 
 drew that Act knew nothing about the law 
 of England." 
 
 He was plain and direct in his speech, and 
 disliked anything like beating about the bush. 
 Once at Nisi Prius, in an action for breach 
 of promise of marriage, the plaintiff's counsel 
 was examining the plaintiff with rather an 
 excess of preliminaries as " How long have 
 you known the defendant ? " and so on. 
 Martin became impatient, and took the wit- 
 ness in hand. " Listen to me, young woman. 
 Now, did this young fellow promise to marry 
 you ? " " Yes, my lord, he did." " Has he 
 married you?" "No, my lord, he has not." 
 " Has he refused to marry you ? " " Yes, my 
 lord, he has." "There, Mr. Silverlip, what 
 more do you want ? That's your case, isn't 
 it?" 
 
 Martin, sound though his decisions usually 
 were, did not leave his mark on the reports, 
 for the reason that his type of mind was not 
 of the analytical order. He could hit the 
 mark himself; but he could not show others by 
 what process he did it. He rather despised 
 displays of intellect and of learning. Neither
 
 THE "OVERRATED MAN." 89 
 
 was he ashamed of a want of literary culture. 
 On one occasion, in a real property case, a 
 very learned counsel referred to the laws of 
 Howel Dha. " I don't believe there was such 
 a mon," said the baron. 
 
 The story goes that on another occasion, on 
 Circuit, his brother judge was detained in 
 Court beyond the dinner-hour. Martin found 
 a Shakespeare which the other judge had left 
 on the table, and took it up as he .might the 
 latest novel. His learned brother, coming in, 
 exclaimed, "Why, Martin, I had no idea you 
 were a student of Shakespeare ! " " Well, 
 no," replied the baron, " 1 never read him 
 before, but I have been reading him for the 
 last twenty minutes, and from what I have 
 seen of him, I think him a very overrated 
 mon " an expression of opinion which has, 
 perhaps, been attributed to others. 
 
 So, again, at the Hampshire Assizes, he 
 dined with the Warden of Winchester. After 
 the judge had gone, the warden remarked to 
 the guests left behind, " What an agreeable 
 man Baron Martin is ; but for a judge, how 
 ignorant ! Why, he had never heard of
 
 90 MARTIN. 
 
 William of Wykeham ! " Tradition, however, 
 records that at that very moment the judge 
 _was having his revenge. On entering his 
 carriage, he said to his marshal, " I like that 
 warden ; but for a person of education, he is 
 about the most ignorant I ever met. He did 
 not know where Danebury was, and had never 
 heard of John Day's training stables." 
 
 Kumour, indeed, always asserted and, in 
 spite of positive assurances to the contrary, 
 tradition will continue to assert that Martin 
 was part owner, with the late Mr. Henry Hill, 
 of some racehorses ; that he consulted that 
 gentleman as to the advisability of accepting 
 a judgeship ; and that the acceptance of the 
 office involved the painful necessity of parting 
 with them. It is matter of undoubted history 
 that the baron made a point of being present 
 at Epsom on the Derby Day, and could be 
 seen in the Stand just over the weighing-room 
 in conversation with Admiral Rous, Mr. George 
 Payne, Count (afterwards Prince) Batthyany, 
 and other turf celebrities, and at another 
 moment in the enclosure earnestly contemplat- 
 ing the winner side by side with Mr. Hill,
 
 BRIBERY WITH A GAME-COCK. 91 
 
 Mr. Gully, Mr. Padwick, and John Day. 
 After his retirement from the Bench he was 
 elected an honorary member of the Jockey 
 Club an honour which he much prized. 
 
 Whether or not Martin ever had a pro- 
 prietary interest on the turf, his mind was 
 always very full of horses, dogs, and other 
 animals, to all of which he was devoted. If 
 an illustration came from him in Banco, it was 
 tolerably sure to begin, " Suppose I bought a 
 horse." 
 
 When he went the Oxford Circuit, he was 
 taken to the Malvern Hills, with a view to the 
 scenery. He was asked his opinion of the hills ; 
 whereupon, digging his heel into the turf in 
 a scientific manner, he replied, " Well, they 
 would make a capital racecourse if they were 
 levelled." The only known attempt made to 
 bribe the learned judge proceeded from a 
 prisoner who must have had an inkling of 
 his tastes. He was convicted, and on being 
 called upon before sentence, he said, " I hope 
 your lordship will not be hard upon me ; and 
 perhaps your lordship would accept a beautiful 
 game-cock I have at home." The judge put
 
 92 MARTIN. 
 
 his hand before his mouth to hide his laughter ; 
 and then passed a sentence which was not 
 severe, adding, " Mind, you must not send me 
 that game-cock." 
 
 He once, at a judges' dinner to the Bar on 
 Circuit, called across the table to his colleague, 
 " Brother Willes, are pigs within the Wounding 
 Act ? Are they ' cattle ' ? " Mr. Justice Willes 
 stroked his chin, and said, " I think, brother, 
 there is a passage in Justinian which seems to 
 point in that direction." Kindness to animals 
 Baron Martin shared with many other occu- 
 pants of the Bench. 
 
 If these stories are not more than enough, 
 there is one which suggests the key to Sir 
 Samuel Martin's whole character. He asked 
 a young lawyer how he progressed in his law, 
 and was told that its complications were 
 puzzling. " Nonsense ! " said Baron Martin ; 
 " bring your common sense to bear on it, 
 mon. That's what I always do ; and I gene- 
 rally find I'm right." 
 
 His ready wit sometimes extricated him 
 in an unexpected way from the mazes of 
 subtlety which are thrown round questions
 
 A COURT IN A COCK-LOFT. 93 
 
 at the Bar. Thus he was sitting in Banco, 
 with Baron Bramwell by his side, in the little 
 room up many stairs, known as the second 
 Vice-Chancellor's Court at Westminster, now 
 happily among the Courts abandoned, while a 
 long-winded counsel was " distinguishing " the 
 case before them from a decision of the House 
 of Lords. After painfully enduring the opera- 
 tion for some time, the baron said, " You are 
 very much mistaken, if you think that my 
 brother Bramwell and I, sitting in this cock- 
 loft, are going to overrule the House of Lords." 
 
 His sentences on malefactors, like his judg- 
 ments, were short. " You are an old villain, 
 and you'll just take ten years' penal servi- 
 tude," was quite enough for the confirmed 
 sinner convicted for the tenth time of felony. 
 In a prolix age his brevity was refreshing ; 
 and if his mode of cutting knots instead of 
 untying them prevented his elucidating the 
 law, it at least tended to the despatch of 
 business. 
 
 In his total absence of affectation, sometimes 
 approaching a want of dignity, he was free 
 from another of the smaller vices of the day.
 
 94 MARTIN. 
 
 On a summer circuit when the weather was 
 very hot, Baron Martin not only took off his 
 wig and robes, but, finding the cushion of his 
 chair too warm, ordered something cooler to 
 put on it, and sat on a soap-box. 
 
 In his combination of tenderness and ro- 
 bustness, and in other ways, he was not unlike 
 Dr. Johnson, but without the learning and 
 rhetorical power of his great namesake. He 
 inspired all who knew him with affection ; 
 and, although not a great lawyer, he must be 
 reckoned an admirable judge.
 
 JAMES AND HELLISH. 
 
 1869-1881. 
 
 JAMES AND MELLISH are names associated in 
 legal history with the last days of the Court 
 of Appeal in Chancery and the earliest of the 
 Court of Appeal as now established. The 
 Court of Appeal in Chancery was constituted, 
 in 1854, of two Lords Justices, with the 
 occasional assistance of the Lord Chancellor, 
 and although it lasted for but twenty-one 
 years, it hardly had a weak judge. There 
 were giants on the Bench in those days. 
 Turner, Knight-Bruce, Eolt, Cairns, Selwyn, 
 Wood, and Giffard gave place to James and 
 Hellish, who belonged to the transition period, 
 and who were eventually absorbed in the six 
 ordinary Judges of Appeal now substituted 
 for the Lords Justices. This Court seldom 
 sits less than three strong ; but James and
 
 96 JAMES AND MELLISH. 
 
 Mellish, although one was bred in equity and 
 the other at common law, generally sat with- 
 gut a third, and hardly ever differed. The 
 new system under the Judicature Acts, which 
 James, as an advanced legal reformer and 
 member of the Commission, was instrumental 
 in introducing, was thoroughly congenial to his 
 taste, and he did much to make it take root. 
 
 The death of James, by far the greater of 
 the two, was a public loss. He was a judge 
 of the best class a class which, unfortunately, 
 by reason of the conditions upon which judges 
 are made, is never very numerous. There are 
 frequently on the Bench men as highly gifted 
 as he, and as highly cultivated ; but it is a 
 common observation of judges thus qualified, 
 that they would appear to have applied their 
 talents to almost every branch of knowledge 
 except the science of law. There are often 
 men with as much learning as James to be 
 found among the judges, but they are too 
 frequently mere lawyers, whose lightest read- 
 ing, like that of the late Mr. Justice Willes, 
 is Butler's "Hudibras." 
 
 James was a man of great powers of in-
 
 LOVE OF LAW. 97 
 
 tellect widely applied, but concentrated on the 
 law. He did not, like some judges who have 
 been placed in eminent positions on the Bench, 
 look upon his duties as a somewhat tiresome 
 necessity of his situation, or as ground upon 
 which he must tread warily through con- 
 sciousness of great gaps in legal knowledge or 
 want of sympathy with legal modes of thought. 
 He loved the law, and he was confident of his 
 legal powers. He applied a considerable know- 
 ledge of life, great force of expression, and a 
 vivid imagination to the illustration of the 
 subject in which he was entitled to have a 
 voice. Few judges have been so thoroughly 
 imbued with the great first principle, from 
 which there are on the Bench so many temp- 
 tations to depart, especially in days when 
 public opinion acts even upon the administra- 
 tion of law, that law is essentially a science of 
 general application, and not a patchwork to be 
 made up piece by piece as occasion arises. A 
 judge of this character fills satisfactorily the 
 position in the social economy to which he is 
 called, and is not easily replaced. 
 
 James, apart from the question of his health,
 
 98 JAMES AND MELLISH. 
 
 which was less robust than his appearance, 
 never had a chance of being Lord Chancellor. 
 Although holding strong opinions as a Liberal, 
 he was not fit for the dust and drudgery of 
 the political arena through which by the 
 British constitution a man must pass triumph- 
 antly before he can look forward to the highest 
 judicial offices. Some men, like Lord Cairns, 
 pass through the ordeal, and bring on the 
 woolsack all the weighty qualifications which 
 ought to be possessed by a Lord Chancellor of 
 Great Britain ; but many fully qualified for 
 the office shrink from passing the portals, or, 
 like James, fail in the attempt. If he had suc- 
 ceeded at Derby, he would have overcome the 
 difficulties which beset lawyers in the House 
 of Commons, and would have made his mark 
 in politics. His interesting book on the history 
 of the British in India, published after his 
 death, breathes the true spirit of an enlightened 
 and patriotic Englishman. 
 
 James, as a Welshman, came from a good 
 judicial source, and his Scotch education prob- 
 ably helped to give his mind the philosophical 
 turn which it possessed. As a Unitarian he
 
 CANDOUR OF MIND. 99 
 
 was unable to enter an English University. 
 He was trained as a lawyer in the chambers 
 of Chief Baron Kelly a good school, in 
 which Lord Bramwell was educated, and which, 
 through him, now influences some of the 
 judges and many barristers and in his 
 early days of practice did not confine himself 
 to equity, but attended the Great Welsh 
 Sessions, which then administered both law 
 and equity. The solid merits of Mr. James 
 were some time in coming to the front. He 
 was a stuff gownsman for twenty-two years, 
 and it was sixteen years before he became a 
 judge. He was taken up, however, by those 
 capable of estimating the less showy qualities 
 in a barrister, and became Attorney-General's 
 " devil " in Chancery, and standing counsel to 
 some of the Government offices. He was 
 appointed Vice-Chancellor of the County 
 Palatine of Lancaster and Queen's Counsel in 
 the same year. 
 
 A want of fluency in speaking, and a candour 
 of mind which denied him the advocate's 
 faculty of seeing only one side at a time, 
 impeded his success at the Bar. Those who
 
 100 JAMES AND MELLISH. 
 
 heard him on the Bench, and even more 
 those who read his judgments, were sur- 
 prised to be told of his want of success as 
 an advocate. But, in fact, in speaking, as 
 has been said of others, he was like a man 
 who is choosing among a bundle of sticks 
 for the proved weapon, and who always finds 
 the right one, and he was not an orator capable 
 of carrying an audience away with him. His 
 critics might have said of him that he was 
 a judge at the Bar and an advocate on the 
 Bench, so forcible and imaginative are some of 
 his judgments. 
 
 Probably he was sometimes carried beyond 
 the bounds of the strictest judicial propriety 
 by an indulgence in the power of stinging 
 language, of which he was a master. A good 
 example of his judicial style is supplied by 
 a passage from a judgment of his, in which 
 Mellish concurred, in the case of The Canadian 
 Oil Works Company: 
 
 " It appears that there were some gentlemen 
 who were minded to induce the English public 
 to buy some property, some oil wells and plant, 
 in Canada, for a very large sum of money,
 
 ' BURNING LANGUAGE. 10 1 
 
 which could only be done by means of a joint 
 stock company. In this state of things, these 
 gentlemen apply to a body of English gentle- 
 men of position, and they say to those English 
 gentlemen, ' Pretend to be shareholders in a 
 company. Pretend to be promoters. Pretend 
 to have made a contract with us, and invite 
 the world to join you as shareholders, and 
 invite them to believe that you are the pro- 
 moters, and to participate with you in the 
 contract which you will pretend you have 
 made. We will find you the shares. We 
 will be the promoters. We will indemnify 
 you against all the expenses. We will have 
 the contract, made by ourselves, cut and dried, 
 ready for signature ; and we will give you a 
 part of the purchase money which we are to 
 receive in money or in shares ; and besides that, 
 you will have your profits as directors of this 
 company.' And that body of English gentle- 
 men have consented and condescended to 
 become the hired retainers, upon those terms, 
 of some unknown adventurers from the other 
 side of the Atlantic." 
 
 Another example showing his high ideal of 
 
 LIBRARY 
 
 'T"V7- /~VT7< f~< \ t T T7< /~v T>
 
 102 JAMES AND HELLISH. 
 
 fairness between man and man may be taken 
 from his judgment, in which Hellish silently 
 joined, in Hodgldnson v. Crowe, in which the 
 question was whether a forfeiture on the 
 breach of any of the covenants in a mining- 
 lease was a usual clause : 
 
 " I am bound to say, having had some 
 experience in these cases, that I not only do 
 not consider it a proper and reasonable thing 
 to introduce, but to my mind it is a most 
 odious stipulation ; it is offensive and it is 
 oppressive beyond measure, and it never, in 
 my opinion, has been submitted to by lessees 
 except upon a general notion that lessors are 
 men of honour and liberality, and would not 
 incur the odium which they would incur in 
 the eyes of their neighbours if they en- 
 deavoured to enforce that which is their strict 
 right, a course which might have the effect of 
 producing a forfeiture of a valuable estate, 
 in which the whole of a lessee's fortune might 
 have been embarked, through some casual 
 inadvertence which might produce a breach 
 of the covenants, though it might not have 
 done the lessor a shilling's-worth of damage."
 
 THE SONS OF ZERUIAH. 103 
 
 His judgments, from the very causes which 
 have sometimes subjected them to criticism, 
 cling to the memory, and have become 
 incorporated in legal literature. His reply in 
 Ex parte Saffery to the claim of the Stock 
 Exchange to be a law to themselves has 
 become history. " My answer is," said the 
 Lord Justice, " that the Stock Exchange is 
 not an Alsatia. The Queen's law is para- 
 mount there, and the Queen's writ runs even 
 into the sacred precincts of Capel Court." 
 
 Equally expressive was his scriptural 
 parallel for lawyers who pile up costs and 
 lengthen documents in spite of Statutes 
 and Rules. When a remarkable instance of 
 this kind came before the Court, James said, 
 " These men, the sons of Zeruiah, are too hard 
 for me." In a case in which it was contended 
 before him that a man who sold the goodwill 
 of his business and afterwards canvassed the 
 customers for himself was not liable to an 
 injunction, he said, " ' Thou shalt not steal ' 
 is as much a part of equity as it is of 
 common law." 
 
 The branches of law in which he made the
 
 104 JAMES AND MELLISH. 
 
 largest contributions to the stock of English 
 jurisprudence were company law, in which the 
 introduction of the Joint Stock Companies' 
 Acts gave him an opportunity ; bankruptcy 
 law, in which his grasp of detail without 
 loss of the general principles of justice was 
 conspicuous ; and in patent law. In ecclesi- 
 astical law, in which his authority was often 
 invoked at the bar, he had some few oppor- 
 tunities of displaying his knowledge on the 
 Bench. He touched no branch of law with- 
 out enriching it, and every day's experience 
 in the Courts shows that his judgments are 
 more trusted to illuminate obscure matters 
 than those of any of his contemporaries. 
 
 Although possessing a full acquaintance 
 with case law, no judge set his face so 
 strongly as James against the practice, from 
 which equity jurisprudence has suffered so 
 much, of deciding according as half a dozen 
 previous cases, none of them directly in point, 
 seem to suggest. James, in fact, although 
 no judge was more full in giving his reasons 
 and dealing with all the arguments advanced, 
 arrived at his conclusion instinctively.
 
 "UNNECESSARY TO DECIDE." 105 
 
 His habit of making up his mind early 
 in the argument led to a noticeable judicial 
 fault. So soon as he had made up his mind, 
 he was apt to be impatient to deliver himself 
 of it ; and it was sometimes difficult for those 
 whose duty it was to oppose his view to get 
 a further hearing. James seemed to throw 
 himself on the disputant with an intellectual 
 weight which had a smothering effect, typified 
 by his own physical appearance and manner. 
 
 Such faults as a tendency to over-colouring 
 in language, due to a strong imagination, and 
 an occasional liability to impatience of argu- 
 ment, due to a desire to save public time, 
 were largely outweighed by the Lord Justice's 
 judicial excellencies. Few judges were more 
 honest than he on the Bench. Moral honesty 
 is happily common to all, but he had the 
 rarer virtue of intellectual honesty. He never 
 sought to get rid of a case upon some trifling 
 technicality, but, if possible, pronounced on 
 the merits. The phrase " unnecessary to 
 decide " was seldom in his mouth ; and, con- 
 scious of his own powers, he went out of 
 his way to untie judicial knots. His name
 
 106 JAMES AND MELLISH. 
 
 will be added to legal history as that of an 
 intellectual Titan who did much to give 
 breadth, strength, and uniformity to the 
 system of English jurisprudence. 
 
 No two judges were more unlike in person 
 than James and his colleague for five years 
 on the Bench of the Court of Appeal in 
 Chancery, Lord Justice Mellish. There is a 
 sketch in Hood's Annual of " a great judge 
 and a little judge, the judges of Assize," 
 the point of which is that they are far from 
 being of a size. The proportions of Hood's 
 two judges would exactly fit the case of 
 James and Mellish. Upon the first day of 
 Michaelmas Term the Lords Justices wear 
 their full dress robes which, by a modifica- 
 tion of the Chancellor's, are of black silk, 
 thickly laced with gold. So narrow were the 
 shoulders of Mellish that his robes sat on 
 him as on a towel-horse, and so little of the 
 gold was visible that they might have been 
 all black. On the other hand, the ample 
 shoulders of James made a blazing display, 
 so that the disrespectful were apt to compare 
 him to a gorgeous frog, while another illus-
 
 JAMES ON HELLISH. 107 
 
 tration from the animal kingdom likened his 
 colleague to an obscure lizard. 
 
 With still more irreverence, the profane 
 vulgar, frequenting the Court during the daily 
 association of the two Lords Justices and 
 their rapid disposal of the business, gave 
 them the nickname of " Flames and Hellish." 
 There was a flamboyant appearance about 
 James's figure and face which made the cor- 
 ruption of his name, though coarse, not very 
 wide of the mark. The unpardonable liberty 
 taken with Mellish's name was aggravated 
 rather than excused by his supposed tendency 
 to irritability produced by the constant 
 physical pain from which he suffered, and 
 which he found it impossible always to repress. 
 
 James's opinion of his colleague, delivered 
 at the sitting of the Court after his death, 
 was given in the following words : 
 
 " What he was at the Bar and on the Bench, 
 is known to the profession, and to the suitors, 
 and will long be remembered ; but to no man 
 was his judicial character so known as it was 
 to me, who, for so many years, had the ines- 
 timable advantage and privilege of sitting
 
 108 JAMES AND MELLISH. 
 
 by his side in the old Court of Appeal, and 
 working with him during all that time in 
 the most unreserved intimacy and confidence. 
 During that time I have seen him sitting by 
 my side writing, under the painful disease 
 by which he had been racked from his early 
 youth, and subduing a pain, to which any 
 other man would have succumbed, by his 
 strong will and his resolute determination to 
 do his duty. And yet he continued to apply 
 his powerful and clear intellect and the 
 unrivalled stores of his legal learning to 
 ascertain the truth, to maintain the law, and 
 to do right and justice to all manner of men. 
 That was the single-minded object of his 
 judicial life, which was as free from vanity 
 and caprice as it was from prejudice, passion, 
 or partiality. With it all there was that 
 marvellous sweetness of temper which was 
 never disturbed or altered. Day by day I 
 learnt to look upon him more and more with 
 an admiration which was only equalled by the 
 love with which he inspired me, and by the 
 regret with which I now pay this truthful 
 tribute to a very great and a very good judge."
 
 MELLISH'S QUALITIES. 109 
 
 Panegyrics by judges on their deceased 
 brethren are generally little worth citing. 
 They sound too much like " another great 
 man dead ; it may be my turn next," but 
 this was one of the things which James did 
 well, and the passage illustrates both the 
 speaker and his subject. The physical in- 
 firmity to which James referred was an 
 affection of gout visibly developed in Mellish's 
 hands, so that writing was a painful process, 
 subjecting him to a torture which made the 
 hearing and deciding of perplexing legal 
 questions with unruffled temper almost heroic. 
 
 Mellish was the son of a Dean of Hereford, 
 and went to Eton, where he distinguished 
 himself in " Pop," and to Oxford. In his 
 young days he was an oarsman. His educa- 
 tion was of a kind which produces an English 
 gentleman and a scholar. 
 
 At the Bar his dexterity in arguing a 
 demurrer, a special case, or a rule nisi in 
 Banco was remarkable. His acute and subtle 
 intellect seized the point at once, and pre- 
 sented it in the manner most favourable to 
 his client. He was above all things a special
 
 110 JAMES AND HELLISH. 
 
 pleader, a branch of practice in which he had 
 been actively engaged for the first eight years 
 of f his professional life. Yet with all his 
 subtlety, dialectic skill, and casuistic force, 
 Hellish was always fair, honest, and straight- 
 forward. He could play the forensic game 
 against any man ; but he played it always 
 like a man and a gentleman. 
 
 He was the beau ideal of a Court of 
 Appeal judge. He lacked some of the qualities 
 essential to a judge " of all work," but was 
 without none of those of an appellate judge. 
 Unlike James, who was a V ice-Chancellor 
 before he was a Lord Justice, he wisely de- 
 clined to be a judge of first instance, but 
 accepted a seat by the side of his illustrious 
 friend and colleague. 
 
 Hellish had no moral drawbacks to the 
 judicial character. His mind was well poised, 
 he was altogether free from conceit and pas- 
 sion. He preserved an equable, unruffled 
 temper, and a courteous, tranquil, and easy 
 manner. His strong will subdued his physical 
 infirmity and every other force antagonistic 
 to the full play of his great moral and intel-
 
 NAMES UNITED. Ill 
 
 lectual powers. To him death was rather 
 a release from suffering than an end of 
 worldly happiness. His memory will always 
 be coupled with that of James, who was a 
 man of equal intellectual force, but more 
 capable of impressing his personality on his 
 contemporaries and on history.
 
 THESIGEK. 
 
 1877-1880. 
 
 A MAN who is a Judge of Appeal at thirty-nine 
 and dies at forty-two is necessarily an interest- 
 ing figure. Speculation as to what he might 
 have been adds interest to what he was. 
 
 Lord Justice Thesiger's untimely death on 
 the 20th of October, 1880, put an end to the 
 anticipations of his career to which his sudden 
 elevation to the Court of Appeal, three years 
 before, had given rise. A man of active dis- 
 position, but not of strong constitution, he had 
 been in the habit of bathing in the sea when 
 unfit for it. An affection of the ear developed 
 itself and led to blood poisoning, which carried 
 him off. Fortunately he lived just long enough 
 to see his brother, Lord Chelmsford, retrieve 
 at Ulundi the honours which have fallen on 
 his family, but which, in the field of battle,
 
 PROGNOSTICATIONS. 113 
 
 were imperilled at Isandula. In the interval, 
 he had, by letters to the newspapers and other- 
 wise, done his best to sustain his brother's 
 credit, with a warmth and devotion illustrative 
 of one of the best sides of English private life. 
 
 There were persons who saw more in Thesi- 
 ger's appointment as Lord Justice than an 
 example of the predilection of Lord Beaconsfield 
 with whom, as Prime Minister, the nomina- 
 tion of a Lord Justice rested, rather than with 
 the Chancellor for young men in the service 
 of the State, and a graceful reparation for Mr. 
 Disraeli's supersession of Lord Chelmsford on 
 the woolsack in 1868. A parallel was drawn 
 between the progress of Lord Cairns and that 
 of Mr. Alfred Thesiger, and, in spite of the 
 fact that the shortlived Lord Justice had never 
 been in the House of Commons, and had never 
 attempted to enter it, he was pointed at as 
 the future Conservative Chancellor. 
 
 Whether there was any ground for a kind 
 of prophecy not uncommon among ingenious 
 persons, has not been divulged ; but there was 
 much in Thesiger's powers and position to 
 support the theory that Lord Beaconsfield
 
 114 THESIGER. 
 
 wished to hold him in reserve for the wool- 
 sack. As a sound lawyer, an industrious 
 worker, with a good presence and ample 
 powers of expressing himself, and as inheriting 
 and carrying on a reputation for the integrity 
 and honour of the preux chevalier, Thesiger 
 would not have brought discredit on the wool- 
 sack. What he wanted was brilliance, and 
 there are occasions when other qualities make 
 up for the lack of it. 
 
 Thesiger was a man who worked up to the 
 highest pressure of his powers, both physical 
 and intellectual. He was not one of those 
 of whom there have been many examples in 
 English legal history men who made their 
 way, in spite of adverse circumstances, by 
 force of genius and perseverance alone. Being 
 placed in the best situation for success, he was 
 equal to the situation, and succeeded. He 
 would not have succeeded had he not possessed 
 great industry and conscientiousness, and he 
 would not have had that conspicuous popu- 
 larity with his fellows which followed him, but 
 for the want of assumption seldom belonging 
 to those with similar opportunities.
 
 THE POST AND TUB. 115 
 
 This modesty showed itself from the time 
 when, leaving Eton, he went to Oxford, and 
 entered for a "pass" degree, although after- 
 wards advised by the examiners to change his 
 mind and enter for "honours." The state of 
 his health prevented this advice being taken. 
 
 He was called to the Bar in 1862, with all 
 the prestige of a son of Lord Chelmsford. who 
 had twice filled the office of Chancellor with 
 approbation, if not distinction. As one of the 
 first steps upwards which may assist the rise 
 of exceptionally favoured barristers, he was 
 made Postman of the Exchequer, the official 
 who in ancient days sat by the Post, the 
 measure of length, which at one side of the 
 Court kept in countenance the Tub, or measure 
 of capacity, on the other, with its corresponding 
 Tubman, both always places of mere honour, 
 and now things of the past, together with 
 the Exchequer itself. He received, further, 
 a golden shower of Parliamentary and com- 
 pensation briefs, was made a Queen's Counsel 
 at an early age, immediately he desired it, 
 without waiting for the next batch of creations, 
 and was appointed Attorney -General to the
 
 116 THESIGER. 
 
 Prince of Wales. No one was more the 
 counsel " in fashion " of his day. 
 
 Help like this was useful, but it would have 
 been thrown away on persons not possessing 
 his native gifts and moral qualities. He was 
 credited with a conscience in regard, to the 
 acceptance of briefs much more tender than 
 that of most of his contemporaries. On one 
 occasion, shortly after he was made Queen's 
 Counsel, he was obliged on Circuit to return 
 a brief to keep a pressing engagement in 
 town. The brief went to a Queen's Counsel, 
 who a few months after was a judge ; and to 
 Thesiger's astonishment, when he entered the 
 railway carriage, he found it occupied by this 
 very Queen's Counsel, who gleefully informed 
 him that he had " settled " that case, and was 
 going to town to oppose him in the other. 
 
 Those who sent their briefs to Thesiger 
 knew that the law and facts would be mastered 
 by him. He was not a man of great quickness 
 of parts ; but he knew his defects. He acquired 
 by labour what others had by intuition, and 
 was able to equal and sometimes beat them in 
 the race. He had not the faculty of picking
 
 HIGH PRESSURE. 117 
 
 up facts as from hand to mouth, and perceiving 
 the law as if by instinct ; but, by hard work, 
 he made himself practically almost as effective 
 a forensic ally as if he had been gifted by 
 nature with these qualities. 
 
 The process he pursued was in the highest 
 degree creditable to his powers of application 
 and self-constraint ; but it demanded great 
 bodily and mental exertion. Without any 
 wild theorizing, it may well be supposed that 
 under this strain the machine broke down. 
 
 The rest which the Bench supplied coming, 
 although it did, much earlier than any one 
 born under inferior auspices could have ex- 
 pected was not sufficient to restore the 
 balance. His tall figure, grave face, clear- 
 cut features, and manners of serious suavity 
 realized the idea that had long been formed 
 of him, that he was in person born for the 
 Bench. The few criminal trials in which he 
 took part justified the high estimate which 
 had been made of his moral qualifications for 
 a judge's work. He was not long enough 
 a judge to make an estimate of his powers 
 as a lawyer possible. He was patient, cour-
 
 118 THESTGER. 
 
 teous, and painstaking. It fell to his lot to 
 prepare several of the judgments of the Court 
 of Appeal in the cases in which he took part, 
 and they are examples of close reasoning, 
 clear expression, and a careful examination 
 of the authorities. He had time to exhibit 
 independence of judgment. As recently as 
 the February before he died, he differed from 
 Sir George Jessel, the then Master of the Rolls, 
 and Lord Justice Baggallay in the case of In 
 re Hallet's Estate, being of opinion that the 
 Court of Appeal ought not to overrule a pre- 
 vious case decided in the same Court a view 
 in which it is not presumptuous to say that 
 he was supported by professional opinion. 
 
 The judgment on the career of Lord Justice 
 Thesiger will be that he deserved success ; 
 that he was in a position to attain it ; and 
 that, in availing himself to the full of his 
 opportunities, he displayed qualities of a high 
 order ; but the glamour cast by an early death 
 disturbs the judgment, and the fancy that 
 whom the gods love die young extends even 
 to judges.
 
 HOLKEE. 
 
 1882. 
 
 HOLKER was one of the first political lawyers 
 who fell a sacrifice to the exigency of modern 
 politics. It was not until four days before 
 his death that he resigned the office of Lord 
 Justice, as it was clear that he would not be 
 fit for work again ; but it was thought not 
 improbable that his life might be prolonged 
 for some considerable time. His death, in the 
 fulness of his career, may well be considered 
 happier than if it had come after a lingering 
 struggle with the wasting disease to which 
 so many lawyers have succumbed. 
 
 Another victim emphasized to lawyers the 
 warning that they cannot burn the candle 
 of vitality at both ends. The office of 
 Attorney-General provides exceptional tempta-
 
 120 HOLKER. 
 
 tion for that disregard of health which is not 
 unknown in any branch of the profession of 
 the law. It is probably the most laborious 
 post in the three kingdoms. The Attorney- 
 General has to give his days to law and his 
 nights to politics, which left, in days of late 
 Parliamentary sittings, but little out of the 
 twenty-four hours for the man himself. 
 Holker, at the end of his career as Attorney- 
 General, gave up his private practice. The 
 effect of this wise step was Dot to prevent his 
 obtaining as much work as he wished when his 
 party went out of power ; but in Holker's case 
 the relief came too late. When he returned 
 from abroad his appearance was a shock to his 
 friends, and he had scarcely been appointed to 
 the Bench, when it was evident that he was 
 a dying man. His death deprived the profes- 
 sion of one of its most popular members, and 
 cut short a promising judicial career. 
 
 No judgment can be passed on Holker's 
 career on the Bench. He took his seat on 
 January 18, 1882, in the Court of Appeal at the 
 invitation of Mr. Gladstone, the leader of his 
 political opponents ; and, although in the four
 
 PKOMISE AS JUDGE. 121 
 
 months during which he was a judge he took 
 part in several decisions, yet none of them 
 were of a kind to bring out the highest judicial 
 qualities. The most important point which 
 came before him arose in Gibbs v. Guild, 
 in which the question was whether, in an 
 action for fraud, the Statutes of Limitation 
 begin to run from the commission of the fraud, 
 or from its discovery. The mind of Holker, 
 trained in the stricter lines of the common 
 law, rebelled against the patronizing manner 
 with which equity lawyers have treated the 
 Statutes of Limitation and other statutes. 
 The Lord Justice was of opinion that, as the 
 statute said that the time was to run from the 
 commission of the fraud, the judges ought 
 not to decide that it ran from some other 
 date. Almost immediately before Holker left 
 England, the year before his death, he de- 
 livered at the Bar, in a different case, an 
 argument on the same question, which is 
 reproduced almost in the same language in his 
 judgment in Gibbs v. Guild. He, as counsel, 
 had persuaded himself, as judge, that his 
 argument as counsel was well founded.
 
 122 HOLKER. 
 
 Holker will be remembered rather as a 
 barrister than as a judge. Few Attorney- 
 Generals were so popular with the Bar as he. 
 His popularity was due not to manner, but 
 to solid acts of kindness and a complete 
 absence of affectation. 
 
 A story is told on the Northern Circuit of 
 a young man who found himself without 
 funds at a remote town on his first Circuit. 
 He asked Holker to lend him ten pounds, and 
 was surprised, at the mess-table, to have a 
 fifty-pound note put into his hand, which 
 he was to repay when he chose. 
 
 He was equally popular with solicitors, who 
 knew that their cases could safely be placed 
 in his hands, and who in the last two years 
 of his practice employed him to the extent 
 of 20,000 a year. It may be said of him, 
 as can be said of few leading counsel, that 
 he never snubbed a junior. He would pay 
 attention to the suggestion of the solicitor's 
 clerk who brought the papers to consultation. 
 As Attorney-General, he never spoke in Court 
 without an ear wide open to the voice of 
 his " devil," Mr. (afterwards Lord Justice)
 
 A PLAIN MAN. 123 
 
 Bowen ; and on the rare occasions when they 
 were opposed, it was amusing to see how he 
 would turn in a difficulty to his familiar 
 prompter, expecting grapes from thorns. 
 
 As a forensic advocate, Holker had very few 
 equals in his own line. The impression of him 
 presented to the ordinary spectator was that 
 of a dull, heavy man, apparently half asleep. 
 But no one could follow an important com- 
 mercial cause in which he was engaged without 
 feeling that his conduct of it was masterly. 
 His complete knowledge of the details of 
 business, and of the habits of thought of 
 business men, enabled him to cross-examine 
 witnesses so as to show them in their true 
 light to the jury. In addressing jurymen, 
 he was careful to suppress all appearance of 
 oratory, and to profess that he knew no law. 
 He appeared a plain man like themselves, and 
 he put before them a common-place view of 
 the case. 
 
 A manner of this kind, although fruitful 
 of successful verdicts, was not likely to take 
 the world by storm. Holker did not possess 
 what is known as culture ; and he was too
 
 124 HOLKER. 
 
 honest to affect to possess it when he did not. 
 After some years he established a reputation 
 for solid qualities ; but his want of enthusiasm 
 prevented his being either a warm partisan 
 or a great speaker. 
 
 As a prosecutor in criminal cases his manner 
 was perfect, as particularly appeared in the 
 prosecution of Wainwright for the murder 
 of Harriet Lane. His manner well represented 
 the gravity of the occasion. He was con- 
 spicuously fair to the prisoner, but at' the 
 same time his conduct of the case was deadly. 
 
 In Parliament his ponderous style made 
 at first very little impression, and the literary 
 sharpshooters were in the habit of calling him 
 Sir John Hulker. It was found, however, 
 that he did not speak unless he was obliged, 
 or unless he had something to say on a subject 
 which he understood. After this discovery 
 was made, he was always listened to when 
 he spoke. Attorneys-General have, however, 
 often to speak on topics which they do not 
 understand, and on these occasions Holker 
 floundered wofully. It was very creditable 
 to his intellectual honesty that he treated the
 
 THE TICHBORNE WRIT OF ERROR. 123 
 
 Brad laugh case as a pure question of law, and 
 he formed and expressed an opinion upon it 
 which was not palatable to the rest of his 
 party. In the Brighton Aquarium case he 
 developed a fund of humour little suspected 
 of him. 
 
 His treatment of the Tichborne claimant's 
 appeal on a writ of error was not equally wise. 
 It became Holker's duty to grant or refuse 
 a fiat for the argument of certain so-called 
 points of law arising on the conviction and 
 sentence. There was at that time a great deal 
 of clamour in the Claimant's favour, especially 
 in the taverns and music halls, a quarter from 
 which the Conservatives derived support. 
 The logicians of these resorts argued that a 
 working man ought not to be deprived of his 
 rights, forgetting that the Claimant's rights 
 were inconsistent with his being a working man. 
 Possibly Holker, who had not a keen instinct 
 for law, really thought there was something 
 in the points raised, in spite of Bowen being 
 always at hand to consult, but it is more 
 likely that political expediency overpowered 
 his judgment. The points when they came
 
 126 HOLKER. 
 
 before the Court were found baseless, in spite 
 of a strenuous argument by Benjamin, and 
 Lord Justice James, an equity lawyer, cha- 
 racterized the allowance of the fiat on such 
 groundless allegations of criminal law as 
 improvident. 
 
 A good story illustrates his simplicity of 
 nature. Holker one day was leaving the 
 House of Commons when he was addressed 
 by two strange ladies, who asked him to show 
 them the House. He politely led the way, 
 duly pointing out the objects of interest. At 
 the end one of the ladies handed to their 
 conductor a sixpence, which the Queen's 
 Attorney-General took with a low bow and 
 afterwards hung upon his watch-chain, de- 
 claring that it was the only sixpence which 
 he could safely say he had honestly earned. 
 
 Holker, like his predecessor Lush, made 
 his way upwards from the lower rungs of 
 the professional ladder. He was first a 
 solicitor, then a local barrister, afterwards 
 Queen's Counsel, Attorney- General, and Lord 
 Justice. Since the death of Thesiger no such 
 painful event had occurred ; and it was seldom
 
 PREMATURE LOSSES OF THE BENCH. 127 
 
 that there took place within so short a space 
 three deaths like that of Thesiger, after three 
 years' service on the Bench ; Sir Henry Jackson, 
 before he could take his seat ; and Holker, 
 four months a Lord Justice.
 
 AMPHLETT AND HALL. 
 
 1873-1882. 
 
 THE two ex-judges (Sir Kichard Amphlett and 
 Sir Charles Hall) who died within the short 
 space of a week from one another, take their 
 places in legal history, not from any enduring 
 mark which they left on the law of the 
 country, but from the part which they took in 
 the great legal reform of the century, the 
 fusion of law and equity. The last appearance 
 of Amphlett in public was at the opening of 
 the Eoyal Courts in December, 1882, when he 
 was carried in upon a chair, and his coming at 
 all was an evidence of the courage and strength 
 of will which distinguished his character. 
 
 It required no small effort for a man at the 
 age of sixty-three, used only to the quiet 
 practice of Lincoln's Inn, to undertake as
 
 SENSE OF RESPONSIBILITY. 129 
 
 judge the conduct of the rather turbulent 
 elements of Nisi Prius and Criminal Courts. 
 A man of greater self-confidence would have 
 felt the effort less. Lord Brougham, when he 
 threw off the " trappings " of Chancellor, after 
 his first experience of equity, declared that 
 " there was not so much in it after all." But 
 Amphlett was weighed down with a great 
 sense of responsibility, and there is no wonder 
 that he hesitated. 
 
 It has been said that his doubts arose from 
 a fear of his reception by the common law 
 judges ; but so groundless were these fears 
 that they can hardly have existed. The real 
 doubt, honestly entertained, was his own com- 
 petence to perform the task imposed upon 
 him. It is true that he had, some forty years 
 before, attended sessions, and gone Circuit, 
 and was at the moment Chairman of Quarter 
 Sessions for Worcestershire ; but these facts 
 were rather useful to allay any public feeling 
 there might be that a wholly untried man 
 should not be suddenly set with the lives and 
 liberties of prisoners in his hand than effective 
 to alter the true nature of the step which he
 
 130 AMPHLETT AND HALL. 
 
 was asked to take. Amphlett had the courage 
 to accept the post of difficulty offered to him, 
 and he discharged its duties with complete 
 Satisfaction. Probably the burden largely con- 
 tributed to the attack which, after less than 
 four years' service, disabled, and eventually 
 killed him. 
 
 It is necessary to recall the state of legal 
 affairs at the end of 1873 and the beginning 
 of 1874 in order thoroughly to appreciate the 
 nature of the services which AmphJett and, in 
 a lesser degree, Hall rendered to legal reform. 
 
 Lord Selborne had made up his mind to 
 break down the barriers between law and 
 equity, and in drafting the Bill which became 
 the Judicature Act, 1873, had availed himself 
 of the skill as a draftsman of Mr. Hall. But 
 there was much more to be done. The 
 attempt had been made before on paper, and 
 had failed through the reluctance of the 
 common law judges to accept the doctrines of 
 equity. They had an intellectual antipathy 
 to them, and did not scruple to characterize 
 some of the equitable rules as iniquitous. 
 How completely the English law educated its
 
 EQUITY GEAFTED ON LAW. 131 
 
 professors so that the right hand knew not 
 what the left hand did was illustrated shortly 
 before Amphlett's death by the oldest of the 
 common law judges, who avowed his total 
 ignorance of the existence of such things as 
 equitable assignments. In the days of Baron 
 Parke, great lawyer as he was, the common 
 law judges would have expressed not merely 
 ignorance but contempt. 
 
 All that was changed by the simple ex- 
 pedient of putting equity judges on the 
 Common Law Bench. At the death of 
 Amphlett there was no equity lawyer in the 
 Queen's Bench Division. Baron Amphlett 
 had long since left it, Lord Justice Lindley 
 had gone to the Court of Appeal, and Mr. 
 Justice North had been transferred to the 
 Chancery Division. Shortly after his death 
 Chancery judges ceased to go Circuit. The 
 plan, however, had done its work. Equity 
 had obtained a firm footing on the Bench 
 beside the common law, and it was then time 
 to attend to the wise maxims plentifully 
 showered at an earlier stage to the effect that 
 law and equity judges were operators with a
 
 132 AMPHLETT AND HALL. 
 
 different class of skill, and that it was absurd 
 to put the one to do the work of the other. 
 
 Honour is due to the judges who fought the 
 ""battle of equity on the Common Law Bench, of 
 which battle Amphlett bore the brunt. It was 
 easy to understand that his appointment was 
 an opportunity not to be missed. The Judi- 
 cature Act, 1873, had passed, but at that time 
 it was not to come into operation until 
 November, 1874. There was a vacancy in 
 the Court of Exchequer, which was one of the 
 Courts to be turned into a division of the 
 High Court, and which, as then intended, was 
 to exercise the jurisdiction in bankruptcy 
 a jurisdiction which from the beginning had 
 consisted of mixed law and equity. Amphlett 
 was an equity lawyer of ability and firmness, 
 of whom it could not be said that he had not 
 seen the inside of a criminal Court. To put 
 an equity lawyer on the Common Law Bench 
 while the Judicature Act was in suspense was 
 to show that fusion was to be carried out in 
 earnest. 
 
 Amphlett accepted the situation, and duly 
 went through the formalities accompanying
 
 LAW WITHOUT EQUITY. 133 
 
 the creation of a common law judge from 
 which, equity judges were free. He was 
 admitted a serjeant, of which body he was one 
 of the last, before Lord Coleridge, who had 
 then been Chief Justice of the Common Pleas 
 some two months ; and the solemnity of 
 ejecting him from Lincoln's Inn Hall was 
 duly performed under the presidency of Lord 
 Justice James, who made an appropriate 
 speech. Shortly afterwards he found himself 
 plunged in the vortex of the Northern Circuit. 
 Baron Amphlett found himself the sole 
 equity lawyer at Westminster without the 
 benefit of the charter which the Judicature 
 Acts were to confer in those quarters on the 
 science in which he had been educated. For 
 nearly two years he had to decide and reason 
 as if there was no such thing as equity, except 
 when a stray equitable plea came before him, 
 of which there does not appear to be any 
 reported instance. It so happened that the 
 most important of the cases in which he had to 
 take part side by side with Chief Baron Kelly, 
 Barons Bramwell, Pigott, Cleasby, and Pollock, 
 were railway cases, of which an early example,
 
 134 AMPHLETT AND HALL. 
 
 Vaughton v. The London and North-Western 
 Railway Company, decided that in a civil 
 action against a railway company responsible 
 for nothing but the felony of its servants, it 
 is not necessary to prove the felony with the 
 same particularity as upon an indictment. In 
 The Attorney-General v. The North London 
 Railway Company, he was one of the judges 
 who laid down that the Cheap Trains Act, 
 relieving from passenger duty, applied to 
 trains running in the manner in use on the 
 defendants' line. In Cohen v. The Great 
 Eastern Railway Company, he had to con- 
 sider the question of the reasonableness of a 
 contract by a railway company, and joined in 
 holding that passengers' luggage comes under 
 the protection of the Act requiring the contract 
 of carriage to be reasonable. Saint v. Pilley, 
 in which the rights of a purchaser of fixtures 
 sold before the trustee in bankruptcy sur- 
 rendered the lease were vindicated, belonged 
 to a class of cases in which law and equity 
 were at one. The same may be said of 
 Bobbett v. Pinkett, in which the Exchequer 
 Division held that the drawer of a specially
 
 EQUITY AND LAW. 135 
 
 crossed cheque paid through an unauthorized 
 bank was entitled to recover its value not only 
 from his own bank, but from the holder who 
 had received the proceeds without title. He 
 besides took part in Treloar v. Bigge, which 
 throws great light on the question of licences 
 to assign leases which are not to be arbitrarily 
 withheld by the landlord, and Copin v. 
 Adamson, which is a leading case on foreign 
 judgments ; and in Wood v. Woad, which 
 vindicated the right of a member of an insur- 
 ance society not to be expelled without an 
 opportunity of being heard. In Thorn v. The 
 Mayor of London, a case arising out of the 
 building of Blackfriars Bridge, and laying down 
 that the employer does not guarantee the 
 feasibility of the specifications for the benefit 
 of the contractor, Amphlett prepared the judg- 
 ment of the Court, which was afterwards upheld 
 in the House of Lords. 
 
 Amphlett had only one year's experience of 
 the Judicature Acts in the Exchequer Division, 
 and one year in the Court of Appeal, where he 
 found himself no longer alone as an equity 
 lawyer.
 
 136 AMPHLETT AND HALL. 
 
 A parallel has been drawn between his 
 elevation to the Bench and that of Baron Rolfe, 
 afterwards Lord Cranworth ; but the resem- 
 blance is only on the surface. Rolfe, it is 
 true, was an equity lawyer ; but the Exchequer 
 jurisdiction in equity was exercised as sepa- 
 rately from its common law jurisdiction as if 
 the Courts were separate, and a year after 
 Rolfe's appointment the Exchequer jurisdiction 
 in equity was, in fact, abolished, and left to be 
 exercised in Chancery by a new Vice-Chan- 
 cellor appointed for the purpose. Rolfe was 
 an equity lawyer, with some experience of 
 criminal law, who was appointed a common 
 law judge, and so was Amphlett, but the two 
 appointments had not the same significance 
 nor the same result. 
 
 The success achieved by the Judicature Acts 
 in their main object was largely due to the 
 change made in the personnel of the Bench 
 at the time of their coming into operation. 
 Amphlett's public career has for its basis the 
 foremost share taken by him in bringing about 
 this result. In private life he was universally 
 beloved and respected, and on or off the Bench
 
 CONVEYANCING AND CASE-LAW. 137 
 
 was always courteous, kindly, and without 
 affectation or undue self-assertion qualities 
 often contributing more largely to success in 
 a judge than more brilliant gifts. In his 
 retirement he was a genuine country squire, 
 not of the spurious form affected by ex-lawyers. 
 The same high praise in point of personal 
 qualities must be given to Hall, the circum- 
 stances of whose latter days were not unlike 
 those of Amphlett. Hall owed his elevation 
 to the Bench to the share which he took in 
 the preparation of the Judicature Act of 1873, 
 which passed into law a few months before he 
 was made Vice-Chancellor. The sections 
 transferring the jurisdictions of the existing 
 Courts to the High Court of Justice are 
 obviously drawn in the style of a highly 
 skilled conveyancer, although the symmetry of 
 the performance was terribly marred by the 
 Judicature Act, 1875, which made the Supreme 
 Court of Judicature a misnomer and a shadow. 
 Hall was the greatest conveyancer of his day, 
 and he had a most minute acquaintance with 
 equity case-law. He began law in a solicitor's 
 office, and learned real property law in the
 
 138 AMPHLETT AND HALL. 
 
 chambers of the celebrated conveyancer, Duval, 
 whose niece he afterwards married. Among 
 his fellow pupils were Davidson and Waley. 
 "His knowledge of real property law stood him 
 in good stead on the Bench, but this and his 
 other qualifications were not of a kind to make 
 him a great judge. The law has not been 
 elucidated by any luminous judgments of his. 
 A detailed acquaintance with case-law is apt 
 to injure the grasp of principle, and the Vice- 
 Chancellor's training was not such as to make 
 him great in dealing with the complicated 
 questions of fact which fall to the lot of a 
 Chancery judge. 
 
 There is much similarity in the careers of 
 these two men who contemporaneously took 
 part in the administration and reform of the 
 law at the Bar and on the Bench, and were 
 hardly divided in their deaths. Both did the 
 work which came to their hands conscientiously 
 and well, and added credit if not lustre to the 
 profession which they adorned.
 
 HATHEELEY. 
 
 1853-1872. 
 
 HATHERLEY was altogether an exemplary man. 
 He had most of the cardinal virtues. He was 
 up every morning early, and went to church 
 before breakfast. His punctuality was a pro- 
 verb all the way from Great George Street to 
 Lincoln's Inn, and the tradesmen in Parlia- 
 ment Street set their watches as the Vice- 
 Chancellor passed. His industry and con- 
 scientiousness were such that he not only 
 mastered every detail and argument in the 
 cases which came before him, but dealt in his 
 judgment with every fluctuation in his own 
 mind in the progress of the case. On Sundays 
 he taught in a school, and every anniversary 
 of his wedding-day he wrote a sonnet to his 
 wife.
 
 140 HATHERLEY. 
 
 With all this he would not have been Lord 
 Chancellor but for an accident. When West- 
 bury left the woolsack and Cranworth reigned 
 'in his stead, Palmerston said to Cranworth, 
 "You see, Cranny, how much better it is to 
 be good than to be clever." No such epigram 
 could have been made when Wood was ap- 
 pointed Lord Chancellor instead of Palmer, 
 because both were equally good ; but in Wood's 
 case cleverness counted less than convenience 
 of opinion. For some years Wood, although 
 a staunch Churchman, had been in favour of 
 the disestablishment of the Church of Ireland. 
 Palmer was against it. Gladstone wanted his 
 measure to be supported by men of known 
 religious convictions, and in default of Palmer, 
 Wood was the very man for him. In the 
 debate on the Irish Church Bill the House of 
 Lords sat late ; Wood, elevated to the wool- 
 sack as Baron Hatherley, made a long speech, 
 and next morning, for the first time in his 
 life, missed the early service at the Abbey. 
 
 Like many men of his type, Hatherley had 
 to perfection the mens conscia recti. He was 
 always so sure of the purity of his own motives
 
 MENS CONSCIA KECTL 141 
 
 that they did not admit of question in his 
 own mind, and the contrary opinion in other 
 men was mere perverseness. From the time 
 when he took part in the " barring-out " of the 
 schoolboys at Winchester to the Collier case 
 and the Beales case this was his frame of 
 mind. His vindication of the appointment 
 of Collier to a judgeship after his sitting for 
 one day in the robes of Sir Montague Smith 
 in the Court of Common Pleas, to give him 
 the qualification under the Act, and of his 
 appointment of Beales to a County Court 
 judgeship after Cockburn had declined to re- 
 appoint him a revising barrister because he 
 had been a contributing cause of the pulling 
 down of Hyde Park railings, was not so much 
 an argument as an exposition of his own con- 
 sciousness. He did not even take care that 
 his statements were accurate. From 700 to 
 800 a year was stated by him to be the 
 salary of which Beales was deprived, when it 
 was in fact 210. Beales was said to have 
 given up his practice in Chancery to earn it, 
 when in fact the work only occupied him for 
 three weeks in the Long Vacation. For one
 
 142 HATHERLET. 
 
 high judicial officer to recompense a sufferer 
 from the act of another high judicial officer, 
 far from appearing to him of evil example, 
 "was the avowed motive of which he was proud. 
 Again, he stated that Collier on being ap- 
 pointed a judge of the Court of Common Pleas 
 became ipso facto a member of the Judicial 
 Committee, which was not accurate ; and 
 finally, he argued as if, as Lord Chancellor 
 of England, he had as little to do with the 
 spirit of an Act of Parliament just passed as 
 if he were a prisoner's counsel quibbling for a 
 client's life. 
 
 If Hatherley could have better judged him- 
 self, he would probably have discovered that 
 after all, concealed by a conscious honesty of 
 purpose, there was some of the leaven of party 
 and some jealousy of Cockburn at the bottom 
 of his motives. 
 
 As a judge, Hatherley was efficient, but did 
 not leave his mark on the legal literature of 
 the day. He was much better as a Vice- 
 Chancellor, to whom care, patience, and acute- 
 ness are invaluable, than as Lord Justice or 
 Chancellor, in whom higher qualities are ex-
 
 PATIENCE. 143 
 
 pected. He was the delight of the circle of 
 painstaking, plodding persons forming the 
 bulk of the equity bar, who liked a judge 
 to listen and take notes of all they said, 
 and to notice all their arguments in deciding ; 
 but his judgments were diffuse, discursive, and 
 obscurely expressed, as witness the four volumes 
 of "Kay and Johnson." When Lord Chan- 
 cellor, he succeeded even in satisfying Miss 
 Shedden, a persistent appellant in the House 
 of Lords, whom he heard patiently day after 
 day, and in whose favour he once broke his 
 rule of rising as the clock struck four, acceding 
 to her prayer for "five minutes more." He was 
 generally sound and just in his decisions, but 
 without any originality of thought or expression. 
 He was popular with his brother judges, and 
 when Lord Campbell, in the House of Lords, 
 in affirming Hatherley, ventured to suggest 
 that he would have arrived at his conclusion 
 more comfortably if the Vice-Chancellor had 
 compressed his observations on the case, Ro- 
 milly, the Master of the Rolls, Kindersley, 
 and Stuart, his brother Vice-Chancellors, came 
 to his assistance, and remonstrated with the
 
 144 HATHERLEY. 
 
 Chancellor, only, however, to receive a sneer 
 from Campbell. Some great men elected to 
 practice in his Court : Cairns, Eolt, Giffard, 
 "James, and Amphlett, all afterwards judges. 
 Once only did he offend his bar, and that was 
 when he ventured upon the opinion that the 
 common lawyers examined witnesses better 
 than they ; and this was made the occasion of 
 a humorous "chapter from Froissart," in which 
 " William de Bosco " (otherwise le bien Aime) 
 was made to do penance for having rashly 
 aspersed the skill of his henchmen with the 
 long-bow. Hatherley never delivered a written 
 judgment but once, and his rambling decisions 
 were a sore trial to reporters. 
 
 In appearance, Hatherley was a stern-look- 
 ing man, with a long, narrow face, deep-set 
 eyes, overwhelming brows, and a shock of 
 hair on a large head. His eyes were the weak 
 point in his physical powers. Only one eye 
 was ever serviceable ; the other was so short- 
 sighted as to be useless. He was obliged to 
 resign the Lord Chancellorship through failure 
 of his sight, which eventually turned to total 
 blindness, an affliction borne with the utmost
 
 POLITICAL ORTHODOXY. 145 
 
 patience. Bowman operated upon him for 
 cataract, and extracted the lenses of the eyes 
 so that with the aid of powerful glasses he 
 could partly see again. 
 
 Hatherley owed his success in some mea- 
 sure to his connection with the City. His 
 father, as Sheriff of London, had been called 
 upon, much against his will, to arrest Sir 
 Francis Burdett, and he was afterwards Lord 
 Mayor. He was the Sir Matthew Wood who 
 was one of the firmest supporters of Queen 
 Caroline. The earliest legal work of William 
 Page Wood, the son, before going to Cam- 
 bridge, was to collect evidence on behalf of the 
 Queen, and he spent some days with Bergami, 
 the courier, in his villa at Pesaro. It is un- 
 necessary to say that his faith in her innocence 
 was perfect. 
 
 Wood read law with some eminent convey- 
 ancers. After his call to the Bar he was in 
 his turn snubbed by Vice-Chancellor Leach, 
 and had some Parliamentary briefs. After 
 becoming a Queen's Counsel, he practised 
 before Wigram, and became member for 
 Oxford. In Parliament he was an orthodox
 
 146 HATHERLEY. 
 
 Radical, though High Churchman, was for the 
 ballot, and sincerely believed that Baron Roths- 
 child could take the oath, omitting the " true 
 faith of a Christian." Lord John Russell made 
 him Solicitor-General, and he proceeded in due 
 course to be Vice-Chancellor and Lord Justice, 
 and with a leap, Lord Chancellor. 
 
 His nephew, Sir Evelyn Wood, in Africa 
 and Egypt opened a less prosaic page in the 
 history of the family ; but the career of Lord 
 Hatherley, though not brilliant, was honour- 
 able and useful on the judgment seat. The 
 worst that can be said of him is that he was 
 an egotist, and burdened the books with many 
 long and obscure judgments ; but he was always 
 credited with purity of motive and conscien- 
 tious industry, and his memory is cherished 
 with affection and respect.
 
 MALINS. 
 
 1866-1881. 
 
 AMONG his contemporary judges Malins had 
 a very distinct individuality. Weakness in 
 law is not unknown among the judges of the 
 land, but it is almost invariably accompanied 
 by an attempt, very often successful, to conceal 
 it. Malins was unconscious of any weakness, 
 and gloried in his bad law. His characteristic 
 was not so much ignorance of law as want of 
 sympathy with law as a system. The amia- 
 bility of his appearance that of a broad - 
 faced, good-natured Englishman extended to 
 his character. If his jurisdiction had been 
 confined to looking after the wards of the 
 Court of Chancery, his reign on the Bench 
 might have been an unmixed blessing. His 
 paternal aspect, kindly manner, and ready
 
 148 MALINS. 
 
 sympathy marked him out as an ideal, if 
 indulgent, representative of the Crown as pater 
 -patrice. If, instead of the wards of Court 
 being distributed among the Chancery judges, 
 the fittest among them were chosen to play 
 for all the part of judicial father, the choice 
 would deservedly have fallen on Malins. 
 
 Malins not only managed his wards well, 
 but in the conduct of business in Chambers 
 generally he was thoroughly at his ease. He 
 was accessible to every one, would joke with 
 the humblest solicitor's clerk, and hardly ever 
 sent any one away displeased. " Turkish 
 bonds," said Malins one day to an applicant 
 who wanted trustees to be allowed to continue 
 their testator's reliance on the faith and ability 
 of the Sultan, " are rather risky as a security, 
 are they not? But you say the widow's 
 income will be reduced ? Well, I have some 
 Turkish bonds of my own ; I think they 
 will go up, and I suppose I cannot forbid 
 trustees doing as I do myself." 
 
 Malins, in fact, was a judge whose personal 
 virtues were judicial vices. So strong was 
 his love of fair dealing and hatred of oppres-
 
 NATURAL EQUITY. 149 
 
 sion, that he did not look very closely to the 
 means by which he came to decide in favour 
 of those who had aroused his sympathies. 
 The legal knowledge, in which he was by no 
 means deficient, was sternly repressed. He 
 considered it his duty to give effect to what 
 he believed to be the natural justice of the 
 case ; and, in justifying this course by refer- 
 ence to the law, would use arguments the 
 fallacy of which on general principles was 
 apparent. 
 
 Malins's memory will last from the boldness 
 with which, at a late date in the history of law, 
 he attempted to give effect to something higher 
 than law. Enthusiastic admirers claimed for 
 him that he would have made a great judge 
 in equity in the days of Lord Hardwicke. But 
 his decisions were not formed with a view to 
 their general application. His views with 
 regard to the promoters of joint-stock com- 
 panies, money lenders, and holders of bills of 
 sale, may ' be briefly summarized by saying 
 that he would decide against them all if he 
 possibly could ; and those who resorted to his 
 Court relied generally on the fact that they
 
 150 MALINS. 
 
 were the weak against the strong, or the 
 innocent against the acute, or on other matter 
 of general prejudice. 
 
 When all other means failed of bringing 
 about the result which Malins thought justice 
 required, and he was pressed to decide accord- 
 ing to law, he was fertile in expedients for 
 bringing about a compromise, or if that failed, 
 for attempting to make the party legally in the 
 right forego his costs. " Is the solicitor here ? " 
 he would ask, and when the solicitor stood up in 
 the " well," he would appeal to his conscience. 
 " Your clients are very rich people ; they do 
 not want costs. I know who they are very 
 well. Why, Lady Malins always buys their tea. 
 Come, you can consent for them ? " If no con- 
 sent were forthcoming, Malins would deprive 
 the successful party of costs, or would give 
 costs to the unsuccessful party. He knew 
 that there was in general no appeal as to costs, 
 but he relied on this once too often. A story 
 of Miss Braddon's was published with a name 
 which had been used before for another story. 
 The proprietor of this story brought an action 
 to restrain Miss Braddon's publisher. Malins
 
 A RILL OF JUSTICE. 151 
 
 did not go so far as to restrain him, but made 
 him pay the costs, a decision which the Court 
 of Appeal promptly overruled, as there is no 
 copyright in a name. It was Malins, too, 
 who restrained a man from calling his house 
 " Ashford Lodge," at the instance of a neigh- 
 bour whose house already bore the name. 
 He sympathized with the woes of the postman 
 and of the lady of the house, whose letters 
 miscarried ; but the Court of Appeal was ob- 
 durate. 
 
 There was no patent want of acuteness 
 or appreciation in Malins ; but he was not 
 forensic. He did not draw from the vast 
 river of justice, but preferred a little rill of 
 his own. His position, sitting alone in his own 
 Court, made these defects more pronounced. 
 If he had sat occasionally with other judges, 
 or had been frequently brought in association 
 with them, his failings would have disappeared 
 or lessened. 
 
 But his only point of contact with other 
 judges was when he was overruled ; and those 
 occasions produced in him an intellectual 
 obstinacy which did more harm than good.
 
 152 MALINS. 
 
 Perhaps he was sometimes unjustly over- 
 ruled, as the decisions of a judge who is often 
 reversed are apt to be treated with scant respect 
 in a Court of Appeal. He never missed an 
 opportunity of justifying to his own Bar his 
 overruled decisions, and his delight was great 
 when once or twice a decision of his, reversed 
 by the Court of Appeal, was restored in the 
 House of Lords. 
 
 His peculiarities led to two evils in the 
 Court over which he presided. The lesser 
 one was that appeals were frequent ; but, in 
 the large class of non-contentious cases which 
 come before a Chancery judge, and in which 
 there is practically no appeal, the evil was 
 even greater. 
 
 A perfect judge must, in fact, be either a 
 stoic or a cynic. Malins was very far from 
 being either. His tenderness of heart pre- 
 vented his being the one ; and his worst 
 enemy, if he had enemies, would not accuse 
 him of being the other. His personal character 
 was beyond reproach, and his judicial aberra- 
 tions were always in the most perfect good 
 faith. He deservedly earned the goodwill
 
 THE EAR OF THE COURT. 153 
 
 and affection of all with whom he came in 
 contact. 
 
 The conduct of business in his Court illus- 
 trated in an extreme form the dangers of the 
 system by which in Chancery the judge sits 
 day after day with the same counsel in the 
 front row before him. The inevitable result 
 of this practice is that one of these counsel 
 obtains " the ear of the Court," to his owu 
 great profit and to the frequent success of 
 his clients. It was characteristic of Malins 
 that he did not surrender to the usual arts 
 of the courtier-advocate. Mr. Glasse, who, 
 during most of the time he was on the Bench, 
 had the Vice-Chancellor's ear in his keeping, 
 was no flatterer, but rather owed his supremacy 
 to the boldness with which he opposed the 
 Vice- Chancellor, to a masterful manner and to 
 a will which was stronger than the judge's. 
 Not that Malins gave way always, or quietly. 
 There were sometimes long and angry wrangles 
 between Vice-Chancellor and Counsel leading 
 occasionally to what are called scenes in Court. 
 
 In general, however, matters went on 
 smoothly and pleasantly, if diffusively. The
 
 154 MALINS. 
 
 leaders of his Bar knew his blind side, and 
 aimed at it. His mind was of a discursive 
 turn, and a very small connection between two 
 "subjects would start him off on topics far away 
 from the case in hand. The 20th of August 
 in a certain year was mentioned as the date 
 on which something happened, such as the 
 execution of a will. " I do not know where 
 you were on that day, Mr. Glasse," said the 
 Vice- Chancellor, " but I know where I was. 
 I was at that delightful little place Odde, on 
 the Hardanger Fjord." "No doubt," replied 
 Mr. Glasse, " your honour's feats on the fjord 
 were very enjoyable." Thus diverted, the 
 conversation was some time in coming back 
 to the question what the testator meant by 
 his will. His love of travelling gave oppor- 
 tunity for these diversions, and his start for 
 the ascent of Monte Generoso on a donkey 
 made a great impression on those who happened 
 to see it. 
 
 At the Bar he had made his way by upright 
 conduct and honest work. As a conveyancer, 
 he had a high reputation for learning and 
 ability, as was evidenced by his full pupil-
 
 IN PARLIAMENT. 155 
 
 room, many of the occupants of which, like 
 Lord Cairns, became eminent. 
 
 It was always a sore point with Malins that 
 Cairns, when Chancellor, did not make his 
 former master a Lord Justice of Appeal. Both 
 had served the Conservative party, Malins, as 
 member for Wallingford, in the House of 
 Commons. Cairns, however, probably knew 
 Malins's capacity better than any one else, and 
 did not see the humour of translating a judge 
 from the task of being overruled to that of 
 overruling others. It so happened that the 
 pupil became a judge before the master, and 
 Malins argued a case before Cairns as Lord 
 Justice of Appeal. 
 
 When in Parliament, Malins, who spoke often 
 and at length, was instrumental in passing two 
 Acts which go by his name, one in regard to 
 infants' marriage settlements, and the other to 
 married women's reversionary interests. The 
 second of these has been overshadowed by the 
 Married Women's Property Act, 1882, but by 
 the first his name will probably be preserved 
 longer than by his fame as a judge. 
 
 The extent of his influence as a judge was
 
 156 MALINS. 
 
 increased by the now abolished system pre- 
 vailing in his time in Chancery, which allowed 
 plaintiffs to choose their own judge. Hard 
 cases, without law on their side, found their 
 way into Malins's Court, so that his peculiar 
 failings were exaggerated. This system was 
 tempered only by the liability of transfer to 
 other judges, when suitors often discovered 
 that if they could not have the judge of their 
 choice, they would have no law at all, and 
 withdrew their cases. The history of his Court 
 produced a change in the system, so that Chan- 
 cery cases are now assigned to judges by rotation. 
 
 His death was accelerated by that failing of 
 most lawyers, bad riding. He had a fall 
 shortly before he retired from the Bench, 
 which brought on an attack of paralysis, and 
 he died a few days after his wife. Lawyers 
 are said to ride like sacks, more especially 
 equity lawyers. Probably Malins and Glasse 
 between them would have made out of an 
 experience of this kind the sorry jest that 
 equity and equitation are incompatible. 
 
 Malins, with all his faults, was an upright 
 judge and a kindly gentleman.
 
 CAIENS. 
 
 1866-1880. 
 
 THE place which > history will assign to Cairns 
 will be that of the greatest lawyer on the 
 English Bench of his generation. The late 
 Mr. Benjamin, whose capacity for passing a 
 judgment and impartiality in the matter will 
 not be questioned, pronounced Cairns the great- 
 est lawyer before whom he had ever argued a 
 case, and Lord Bramwell is known to have had 
 the very highest estimate of his powers. 
 
 His death, at an early age compared with 
 the average years of successful public men, 
 was the last evidence of the physical weakness 
 with which his career was weighted throughout. 
 If he had lived, he would probably never 
 again have taken his seat on the woolsack. 
 Deafness, arising from " ivory in the ear," had 
 of late years been added to the infirmity of
 
 158 CAIRNS. 
 
 the chest from which he suffered all his life. 
 Upon the last occasion on which he sat in the 
 House of Lords for the purpose of taking part 
 Tn the rehearing of an appeal which, on the 
 original hearing, had equally divided the law 
 lords, he found it necessary to sit close to the 
 bar of the House, and even in that position 
 was obliged to ask the counsel being heard to 
 raise his voice. At one period of his life 
 Cairns was practically kept alive by breathing 
 inhalations prescribed for him by a well-known 
 specialist in asthmatic disorders. 
 
 His health, therefore, was a sufficient expla- 
 nation of the intervals between his public 
 appearances and of the comparative rarity 
 with which his name appears in the " Reports " 
 for the nineteen years during which he was in 
 a judicial capacity. It was only with great 
 care that he was fit for his duties at all, 
 although he was at no time at all like an 
 invalid either in appearance or in habits. 
 
 During a large part of his practice at the 
 Bar he invariably refused briefs for Saturday, 
 and on that day gave himself a holiday, which 
 he usually spent in the hunting-field. The Long
 
 LUCIDITY. 159 
 
 Vacation generally found him on the moors 
 of Scotland. After his elevation to the Bench, 
 it was again in the interest of his health that 
 he took up his residence at Bournemouth, and 
 it is well known that the same consideration 
 made it necessary for him to resign the Con- 
 servative leadership in the House of Lords. 
 As a compensation for this life-long drawback 
 his powers matured quickly and his opportu- 
 nities came early. He was a Queen's Counsel 
 at the age of thirty-seven, and Her Majesty's 
 Solicitor-General before he was forty. 
 
 The attribute in which Cairns excelled was 
 lucidity. The most complex legal problem 
 presented no difficulty to him, and it passed 
 out of his hands placed by his mere statement 
 in so simple and clear a light that the wonder 
 was why there could ever have been any diffi- 
 culty about it. Readers of his judgments are 
 like those who look for the first time on a simple 
 mechanical contrivance producing great results. 
 
 " The invention all admired, and each, how he 
 To be the inventor missed ; so easy it seemed 
 Once found, which yet unfound most would have 
 
 thought 
 Impossible."
 
 160 CAIRNS. 
 
 Cairns made no display of a depth of reading 
 like that of a Willes or a Blackburn, although 
 he was far from deficient in learning. Case- 
 -law a man of his powers could afford to despise, 
 and even when at the Bar he was in the habit 
 of citing no cases until he had exhausted the 
 principles of the argument, when he would 
 mention the names of the authorities illustrat- 
 ing his propositions. 
 
 Much of the logical precision which dis- 
 tinguished him in the statement of legal 
 propositions was due to the fact that, in the 
 chambers of the late Mr. Thomas Chitty, at 
 King's Bench Walk, he was well grounded in 
 the practice of common law pleading, a kind 
 of training of which students at the present 
 day are unfortunately deprived. 
 
 Cairns on the Bench was not like Jessel, fond 
 of bringing his own individuality to the front, 
 or of exposing in his judgments the processes 
 by which he arrived at them. In delivering 
 judgment, he was like an embodiment of the 
 voice of the law, cold and impersonal, and 
 suggested an intellectual machine upon which 
 no sophism could make any impression, and
 
 MINTING LAW. 161 
 
 which stamped the seal of the law upon what 
 was obviously reasonable and just. 
 
 Perhaps Westbury was his equal in penetra- 
 tion and in clearness of expression ; but either 
 from his matter or his manner he did not carry 
 the same inexorable conviction. In Cairns's 
 judgments there was no indication of the 
 intellectual waste which gives a human interest 
 to the productions of some thinkers ; the 
 workings of his mind made no pause or 
 hesitation. It was as if the metal were placed 
 under the die, and with a few turns of the 
 wheel the perfect coin was minted. 
 
 Examples of these judgments are to be 
 found throughout the Reports from 1874 to 
 1880, when he was on the woolsack. In 
 Riche v. Ashbury he decided that it was 
 beyond the powers of a railway carriage 
 company to finance a railway company, 
 although it had by its memorandum of asso- 
 ciation, after enumerating specific branches of 
 business, reserved to itself the vague powers 
 of general contractor. In Thorn v. The Mayor 
 of London, he held that the City did not 
 guarantee for the benefit of the contractor 
 
 M
 
 162 CAIRNS. 
 
 their engineer's plans for making Blackfriars 
 Bridge. In another case, he laid down that an 
 owner of coal mines, employing an agent, was 
 'not bound to go on working his coal for the 
 good of the agent. Again, Mr. Jackson, an 
 unlucky traveller on the underground railway 
 who had his thumb crushed in the doorway of 
 an overcrowded carriage, was pronounced not 
 to have made out a case of negligence against 
 the company. Two leading cases of contracts 
 for the sale of land to be collected from letters 
 came before him. In one, although there was 
 a point of time at which the parties were at 
 one, the claim was not allowed because the 
 matter had afterwards been reopened. In the 
 other, the contract in the letters was held good, 
 although a formal agreement was contemplated 
 and not entered into. In a Stock Exchange 
 case, he decided that a jobber who passed the 
 name of an infant incapable of contracting as 
 buyer of shares was liable to make good calls 
 on them paid by the customer of the broker 
 who had sold to him. In an agricultural case, 
 he held that a man who sends pigs to market 
 for sale does not warrant them free from fever,
 
 DIGNITY. 163 
 
 although his sending fever-stricken pigs to 
 market is a penal offence. 
 
 An example of the high estimate he had of 
 the dignity of judicial proceedings was supplied 
 at the time of the addition of the Lords of 
 Appeal to the House of Lords. One of the 
 new Lords of Appeal had acquired in a Court, 
 in which speed was considered rather than 
 orderliness, the habit of interrupting the argu- 
 ments by questions in the nature of "posers." 
 On his reverting to this habit in the House of 
 Lords, Lord Cairns interposed from the wool- 
 sack before the question could be answered, 
 with the words, " I think the House is 
 desirous of hearing the argument of counsel, 
 and not of putting questions to him." The 
 interposition was made by Cairns in a voice, 
 not musical, like Cockburn's, but possessing, 
 with his, the quality that it could not be 
 gainsaid. 
 
 Cairns is said to have had no humour, but it 
 was rather that he did not show it on the 
 Bench, where he considered it out of place. 
 On occasion he could use all the weapons of 
 rhetoric in Parliament, and when anything
 
 164 CAIRNS. 
 
 occurred to melt his cold impassive exterior, 
 
 he showed that the true fire of the orator was 
 
 ? 
 
 within him, but usually repressed. 
 
 He appeared to inherit qualities both from 
 Scotland, the land of his origin, and from 
 Ireland, the land of his birth, but curiously 
 mixed. Scotch impassiveness was deepened 
 by an orange tinge of gloom ; but it was 
 redeemed by powers of imagination often 
 sent us from the sister isle. 
 
 It is remarkable, but not unprecedented, 
 that a man who succeeded so admirably as 
 a speaker should have begun with a con- 
 stitutional diffidence. So impressed was he 
 with his deficiency in nerve, that at the 
 beginning of his career at Lincoln's Inn he 
 considered himself fit only for chamber 
 practice, and actually for some time confined 
 himself to conveyancing. Malins, in whose 
 chambers he read, and who is said never to 
 have quite forgiven his pupil for not making 
 him a Lord Justice, probably disabused him of 
 this want of confidence so far as to induce 
 him to try his fortune at the Bar. 
 
 Certain it is that when he once had briefs
 
 RELIGION. 165 
 
 he was never without them ; for, as he himself 
 described his early beginnings, he came from 
 Trinity College to London without a friend. 
 Mr. Gregory, of Bedford Row, gave him his 
 first brief, and never afterwards deserted him. 
 Cairns was one of the few judges not being 
 Chief Justices who have taken a peerage 
 while on the Bench ; but even his success at 
 the Bar did not leave him rich enough to 
 accept it, and he would have rejected it but 
 for the fact that a rich relative came forward 
 and endowed his peerage for him. 
 
 Cairns cannot be said to have been a popular 
 Lord Chancellor. His manner was not sympa- 
 thetic, and he was a sincere professor of a 
 melancholy religion which he introduced even 
 into his social entertainments. Like Lord 
 Hatherley and his political rival, Lord Sel- 
 borne, he taught in the Sunday school. He 
 interested himself in benevolent projects, and 
 sometimes took the chair at Exeter Hall. To 
 hear Moody and Sankey was, he declared, 
 the richest feast he could have. Perhaps 
 his good nature was unduly trespassed upon 
 on one occasion when an enterprising pro-
 
 166 CAIRNS. 
 
 moter of a charity distributed circulars 
 particularly in the neighbourhood of Lincoln's 
 "'Inn, the Temple, and Bedford Row with 
 the Lord Chancellor's autograph in the corner 
 of the envelope and his crest on the seal. 
 A conformity with Cairns's religious opinions 
 became unfortunately acknowledged as the 
 most direct route to preferment. Not to stay 
 to prayers after a reception at Cairns's house 
 was supposed to be fatal to the chances of 
 the aspirant, and County Court judgeships, 
 and even higher places, it was whispered, 
 were the reward of persistent flattery of 
 Cairns's religious demonstrations. 
 
 The only carnal weakness of which Lord 
 Cairns has been accused was that he was 
 " justly vain " of the spotlessness of his tie 
 and bands in Court, and of the " nice conduct " 
 of the flower in his button-hole, when in the 
 attire, to use the words of his political chief, 
 " which denotes festivity." During his first 
 brief tenure of the woolsack in 1868, he 
 appointed Giffard, Hayes, Brett, and Cleasby, 
 as judges, the three last being created under 
 a new Act with a view to election petitions ;
 
 RELATION TO DISRAELI. 167 
 
 and from 1874 to 1880 lie appointed Archi- 
 bald, Field, Lindley, Huddleston, Manisty, 
 Hawkins, Lopes, Fry, Stephen, and Bowen. 
 He also advised the Prime Minister in the 
 appointment of Lords Justices Baggallay, 
 Cotton, and Thesiger. 
 
 In taking part in the appointment of the 
 promising son of Lord Chelmsford, whose ser- 
 vices were too soon lost to the Bench, Cairns 
 was able to some extent to heal the resentment 
 caused by his having supplanted Lord Chelms- 
 ford in 1868, when Mr. Disraeli succeeded 
 Lord Derby as Prime Minister. Lord Chelms- 
 ford was then reported to have said that he 
 was dismissed in a manner in which a gentle- 
 man would not discharge his butler. Punch 
 at the time endeavoured to soften the blow 
 with the joke that Disraeli had erected 
 "cairns" over Lord Chelmsford in honour of the 
 ex- Chancellor. The sacrifice made to obtain 
 Lord Cairns's services shows how highly they 
 were esteemed by Mr. Disraeli. Cairns's por- 
 trait hung on the walls of Hughenden among 
 Lord Beaconsfield's closest friends and sup- 
 porters.
 
 168 CAIRNS. 
 
 In one important branch of the duties of a 
 Chancellor namely, the nomination of County 
 ^Court judges Cairns did not show the happy' 
 inspiration of his party leader in the choice of 
 his subordinates. Some of his appointments 
 to the County Court Bench were much criti- 
 cized, as such appointments are peculiarly 
 liable to the illegitimate influences which were 
 brought to bear on Cairns unconsciously to 
 himself. 
 
 In another important branch of the duties 
 of a Chancellor Cairns left his mark perma- 
 nently on the legislation of the country. The 
 only Act to which his name became actually 
 attached was an Act allowing Chancery judges 
 to give damages in lieu of an injunction or 
 specific performance, which has met the fate of 
 repeal by a Statute Law Kevision Act. On 
 a small scale it anticipated the Judicature 
 Acts, a series of statutes in which Cairns had 
 a very great share, having been chairman of 
 the Judicature Commission, which reported in 
 1869, and Chancellor when the Acts first came 
 into operation. The chief point in the Judi- 
 cature Acts in which his influence was felt was
 
 THE LORDS AS APPEAL JUDGES. 169 
 
 the restoration of the House of Lords as the 
 final Court of Appeal, from which position it 
 had been displaced by Lord Selborne's Judi- 
 cature Act of 1873. In making this alteration, 
 Cairns forgot to alter Lord Selborne's nomen- 
 clature, so that we have a Supreme Court of 
 Judicature which is not a supreme, and a 
 Court of Appeal which has another Appeal 
 Court over it. Towards the close of his career 
 Cairns returned to his first love, conveyancing, 
 and passed through the House of Lords the 
 Conveyancing Acts of 1881 and 1882, and the 
 Settled Land Act of 1882, measures which in 
 part he attempted to introduce in the House 
 of Commons as early as 1858. When Cairns 
 first became Chancellor in 1868, there were 
 no less than five ex-Chancellors namely, Lord 
 Brougham, Lord St. Leonards, Lord Cran- 
 worth, Lord Westbury, and Lord Chelmsford, 
 although Lord Brougham and Lord Cranworth 
 died in that year. It happened that at his 
 death there was not one ex-Chancellor, so that 
 the necessity for the re-arrangement of the 
 House of Lords as an appellate Court by the 
 creation of Lords of Appeal which he carried
 
 170 CAIRNS. 
 
 out was fully apparent. Probably Cairns was 
 missed in public life more by Lord Selborne 
 than by any one else. Frequently opposed at 
 the Bar and in Parliament, associated together 
 on the Judicature Commission and in other 
 consultations for the reform of the law, and 
 both men of earnest purpose, each had that 
 perfect confidence in the other which is so 
 desirable between political opponents in the 
 public interest. 
 
 Cairns's greatness was that of the rock cold, 
 hard, and impenetrable. He does not inspire 
 enthusiasm, but a purely intellectual interest. 
 He was not only the greatest lawyer of his day, 
 but one of the few lawyers who were almost 
 equally great in political life. The respect 
 which his political friends had for him was 
 shown by the choice of him as leader of their 
 party in the House of Lords, and but for his 
 physical weakness and a want of pliancy of 
 character, he might have been Prime Minister.
 
 JESSEL. 
 
 1878-1883. 
 
 THE death of Jessel, Master of the Rolls, 
 occurred at a moment when the public were 
 beginning to obtain a true estimate of his 
 powers; but lawyers alone fully knew his 
 greatness. The popular appreciation of judges 
 is generally built up of facts which but little 
 influence the lawyer. If the judge has been 
 in Parliament, a reflex of his Parliamentary 
 reputation follows him to the Bench ; but 
 Jessel's Parliamentary career did not lay the 
 foundation of a reputation. His genius was 
 too purely intellectual, and contemptuous of 
 weaker minds, to commend itself to the average 
 member of the House of Commons ; and he 
 was persuasive by the force of his reasoning 
 only.
 
 172 JESSEL. 
 
 Force of intellect, however, is the power 
 which makes a reputation among lawyers. 
 -The strength of his intellectual qualities was 
 the more conspicuous because its recognition 
 was conceded, in spite of many faults of 
 manner. There are many whose memory of 
 Jessel is accompanied by some soreness. He 
 did not spare any one who crossed swords 
 with him in argument, whether his opponent 
 was at the Bar or on the Bench. But his 
 manner was due to no feeling but the desire 
 to push home his conclusion. 
 
 It was well known at the Bar that, if a man 
 had anything to say worth hearing, and said 
 it in a few words, Jessel would be sure to listen 
 to him, particularly if he were a young man. 
 He would take pains to show the disputant 
 the error of his ways, and he never passed 
 unnoticed any objection to his decision which 
 had any weight whatever. Within a few 
 days of his death the Master of the Eolls 
 seemed to have been conscious of the defect 
 in his judicial manner. " Don't think I am 
 against you," he said ; " counsel, in arguing, 
 sometimes think that I am much more against
 
 FAULT OF MANNEtt. 173 
 
 them than I really am" a confession which 
 had after his death something pathetic in it. 
 
 There is no doubt that during his last days 
 his irritation and impatience on the Bench 
 increased to an alarming extent. He had, as 
 a member of the Court of Appeal, expressed 
 an opinion with even more than his usual con- 
 fidence on a question of the right of parties to 
 interrogate one another in an action to recover 
 land. The House of Lords overruled this deci- 
 sion, and Jessel's impatience at the result was a 
 sign of mental breaking up. " Don't cite to me 
 the decisions of remote judges," he said at this 
 time. 
 
 Jessel never wrote a judgment while he was 
 on the Bench, and yet he seldom delivered one 
 which did not deal with every point in the 
 case ; and sometimes, when he had clearly 
 made up his mind as to some obscure legal topic 
 or disputed Act of Parliament, he went out of 
 his way to elucidate it. Unlike Hatherley, 
 who followed the same practice, Jessel saved 
 time and did not waste it by not writing 
 judgments. He was able to decide on the 
 spot without adjourning, and he was never 
 diffuse or discursive, although always full.
 
 174 JESSEL. 
 
 The performance by Jessel of his daily work 
 in the now abandoned Rolls Court in Chancery 
 Lane was an exhibition of power seldom 
 witnessed. The observer hardly knew which 
 most to admire his minute knowledge of 
 case-law, the breadth of his acquaintance with 
 legal principles, or the amazing rapidity 
 with which he took in the facts of his cases. 
 American visitors to London were generally 
 taken to the Rolls to see the legal machine 
 at work at its best and swiftest. 
 
 Jessel seemed to devour an affidavit as soon as 
 it was put into his hand. There was a super- 
 stition that nature had physically endowed him 
 above other men with the capacity of acquiring 
 knowledge, and that he could read one line 
 with one eye and the next line with the other. 
 It is certain that hardly any subject came 
 to the surface in his Court without his dis- 
 playing a knowledge of it which astonished 
 experts. Large drafts were made on these 
 gifts in patent cases, and the Master of the 
 Rolls was equally at home in mechanical com- 
 plications and in chemical mysteries. He 
 used to amuse his leisure at his country
 
 THE ISRAELITISH RACE. 175 
 
 house by the study of botany and cataloguing 
 funguses. 
 
 Something has necessarily been said of his 
 fault of manner on the Bench ; but it lay 
 merely in the manner. His mind was emi- 
 nently judicial, and the most skilful advocate 
 that practised before him probably never dis- 
 covered that he had any prejudices by which 
 he could be misled. Least of all had he any 
 favour for those of his own race, although 
 he was the first of his faith who attained the 
 English Bench. On one occasion when it ap- 
 peared that a peculiarly hard bargain had been 
 driven by a party in the case, the Master of the 
 Eolls observed, " I fear this gentleman is of the 
 Israelitish race." In spite of his birth, with 
 the adaptiveness of his race, there was much 
 of the solid John Bull about Jessel. He had 
 the Englishman's love of individual liberty, 
 and entered a protest against the extension of 
 summary punishment for contempt of Court, 
 which had become too common in his day. 
 Occasionally he would illustrate his meaning 
 by quotations from the New Testament. 
 
 There was no section of the community
 
 176 JESSEL. 
 
 which did not look to him for the most un- 
 compromising justice. This was due to the 
 Jbelief, not only that he had a practical know- 
 ledge of most of the affairs of life, and 
 was a learned lawyer, but that his mind was 
 absolutely free from cant. His rapidity was 
 so great, and his reputation so high, that the 
 Rolls Court became during his reign the most 
 important Court in the country. 
 
 When the Judicature Acts came into opera- 
 tion, the universality of Jessel's legal know- 
 ledge stood him in good stead. Here, at least, 
 was one judge who could decide off-hand upon 
 the limitations of a crabbed settlement at one 
 moment, and at another expound the obscu- 
 rities of a bill of lading. 
 
 Jessel's place in history will probably be 
 connected with these Acts. The Common 
 Law Procedure Acts failed to bring about 
 a satisfactory compromise between law and 
 equity. As Jessel was fond of pointing out, 
 the common law judges had equitable powers 
 given to them by those Acts which the 
 Chancery judges did not possess. These 
 powers, however, were ignored, and the
 
 LIBERALITY OF MIND. 177 
 
 Judicature Acts became necessary. The same 
 influences were at work in the passing of the 
 Judicature Acts, and at an early date they 
 showed themselves ominously. Jessel set 
 himself the task of giving the most liberal 
 operation to the principles of those Acts, and 
 he effected far more for the fusion of law and 
 equity than the Acts themselves. It is not 
 too much to say that the success which the 
 Judicature Acts obtained would have been 
 impossible without him. His experience of 
 equity and Chancery practice was vast, and he 
 had not forgotten the common law which he 
 had learned in the chambers of Barnes Peacock, 
 one of the ablest pleaders of his day, and 
 afterwards Chief Justice at Calcutta. 
 
 His theory of injunctions was so liberal that 
 he considered himself at liberty to order or 
 forbid anything so long as he acted according 
 to legal principles. His interpretation of the 
 position of the High Court as a " maid-of-all- 
 work " in all its branches was so wide that he 
 once offered to decree a judicial separation in 
 an action between husband and wife on a deed. 
 His view of the complete victory of equity 
 
 N
 
 178 JESSEL. 
 
 over law led him to the opinion that a lease 
 was no longer necessary for any purpose so 
 Jong as there was an agreement for a lease, 
 and on one occasion by a simple injunction he 
 settled in a few minutes the qualification of an 
 alderman of Southampton, which could only 
 have been done at common law by the tedious 
 process of a quo warranto. 
 
 Jessel was not free from the faults to which 
 great minds are liable. He was so quick that 
 occasionally he was hasty, but the mistakes he 
 made were not half so many as those of other 
 judges who got through about a tenth of his 
 work. He was also apt to be intellectually 
 overbearing. He was fond of exposing the 
 errors of others, but he never admitted a doubt 
 of the correctness of his own opinion. His 
 phrase, " Of course, all judges believe that they 
 are right," has passed into a byword ; and 
 Jessel was the mental antipodes of Lord Eldon, 
 great lawyers as both were. 
 
 History does not record that Jessel ever 
 admitted he was wrong. When his attention 
 was called to the fact that the Court of Appeal 
 had overruled his decision, he said, " That is
 
 THE ALPHABETICAL SHIBBOLETH. 179 
 
 strange ; when I sit with them, they always 
 agree with me." This was generally true, as 
 there were few judges whom the Master of the 
 Rolls could not carry with him. Whoever sat 
 with him, the Court was generally considered 
 to consist of the Master of the Rolls. He 
 constantly overcame even the tenacity of 
 colleagues like Brett and Bramwell, although 
 often in the Committee-room of the House 
 of Lords, where the Court of Appeal then sat, 
 Jessel and Brett, sitting side by side, might be 
 heard delivering themselves of long excursions 
 on law and equity not to but at one another. 
 Jessel was fond of insisting that many things 
 startling to common lawyers were everyday 
 practice in Chancery, and it required some 
 courage and persistence in his colleagues to 
 make him admit that they were common forms 
 only in the Master of the Rolls' own Court. 
 
 Some of his defects were perhaps due to his 
 having, during most of his career at the Bar, 
 practised before a very mild judge in the same 
 Court in which he afterwards sat on the Bench. 
 In spite of his education and association with 
 persons of culture, Jessel never entirely lost
 
 ] 80 JESSEL. 
 
 the peculiar twang which makes discord of the 
 voices of many of his race. He also had a 
 difficulty with that Shibboleth of polite 
 English, the letter h. He did not always drop 
 it, but he did sometimes, and he was conscious 
 of his failing. He was, however, too careless 
 of small matters to make any affectation about 
 it. He appeared to drop the h or sound it 
 just as at the moment he seemed inclined. 
 
 An odd story arises out of this habit of his. 
 When at the Bar, he was cross-examining a 
 French witness through an interpreter in a 
 patent case, in regard to a certain chemical 
 compound of a poisonous character. " If you 'eat 
 it ? " asked Jessel. " Si vous le mangez," echoed 
 the interpreter. " Mangez ! " said the witness, 
 lifting up his hands in horror, " Mais, ce n'est 
 pas pour manger." It was some time before 
 Jessel could get on sufficiently good terms 
 with the evasive letter to induce the inter- 
 preter to ask what would happen : "Si vous 
 r&hauffez ? " 
 
 His first appearance in the Court of Queen's 
 Bench after his appointment as Solicitor- 
 General was memorable. It was to oppose
 
 COLLISION WITH COCKBURtf. 181 
 
 a rule for a mandamus to the Commis- 
 sioners of the Treasury to allow the county 
 of Lancashire certain costs in criminal cases 
 which had been disallowed. " The Court of 
 Queen's Bench hasn't the power to do anything 
 of the sort," said the Solicitor- General in 
 peremptory tones ; " it can't do it." The 
 colour was seen gradually to rise in the face of 
 Chief Justice Cockburn, and at last he spoke : 
 " Whatever the Court of Queen's Bench can or 
 cannot do, Mr. Solicitor, it is accustomed to be 
 addressed with respect." The Solicitor waited 
 until he had reached the end of the thread of 
 argument which he had in hand, when he men- 
 tioned, in passing, that he really did not mean 
 to be disrespectful. His acute and self-reliant 
 genius when he was on the Bench chafed at 
 the authority of cases decided by other judges, 
 and he had an ingenious plan of eluding them 
 by saying that he was not bound by the simi- 
 larity of the case but only by the principle, and 
 that there was no principle in them a practice 
 not conducive to the certainty of the law. 
 
 After two years as law officer, he was eight 
 years a judge of first instance, when the office
 
 182 JESSEL. 
 
 which he filled was permanently added to the 
 Court of Appeal. He died at the age of fifty- 
 ^nine, and after little more than nine years' 
 service on the Bench ; but he will undoubtedly 
 take a very high rank among the judges of 
 England. Some judges have established a 
 reputation for knowledge of real property, 
 others for knowledge of commercial law, others 
 for knowledge of equity ; but there was hardly 
 a branch of law in which Jessel did not dis- 
 tinguish himself, and he was thus the fit 
 judicial representative of the reforms introduced 
 by the Judicature Acts.
 
 KAESLAKE. 
 
 1846-1881. 
 
 KARSLAKE was not a judge because his health 
 gave way before he could reach the Bench, 
 but he was Solicitor-General, Attorney-General, 
 Privy Councillor, and the most prominent 
 member of the Bar of his day. It was but 
 by accident that he does not strictly come 
 within the purview of these pages, and any 
 account of the period in which he took part 
 as a lawyer would be incomplete without the 
 pathetic story of a man upon whom nature 
 seemed to have heaped her best gifts only 
 to make them useless by the infliction of 
 blindness when the highest honours were 
 within his grasp. Of tall figure and well- 
 formed features, he was one of the few men 
 whom a full-bottomed wig became. On Cir-
 
 1 84 KARSLAKE. 
 
 cuit he went by the title of " Handsome 
 Jack," and was the rival of Coleridge, who 
 Vas his contemporary in the fullest sense. 
 They were born the same year, called to 
 the Bar at the same Inn in the same year, 
 began to practise at the Devon Sessions 
 together, and were made Queen's Counsel the 
 same year. They were on different sides in 
 the same cases, and contested Exeter on 
 opposite political principles. When one was 
 Attorney- General, the other was ex- Attorney- 
 General ; and the unlikeness of Karslake 
 fitted the unlikeness of Coleridge. 
 
 Karslake's father, of a Devonshire family, 
 was a solicitor in Regent Street,' and he in- 
 herited legal blood from his mother, who was 
 the daughter of the famous conveyancer, 
 Richard Preston. Preston was the author of 
 " Preston on Abstracts," and in his day was 
 the absolute arbiter of all questions of real 
 property and of wills. Karslake, the father, 
 was for some time secretary to the Duke of 
 Kent, after whom he called one of his sons, and 
 he was not a rich man. Preston, who lived 
 in days when real property lawyers made
 
 THE RIVALS. 185 
 
 money, undertook to educate the boys, and 
 John was sent to Harrow. Kent was sent also 
 to Oxford, and it was always a grievance 
 that John was not sent too. Both went to 
 the law, Kent was celebrated in the Equity 
 Courts for his apt quotations from Horace, 
 and for his jokes, and became a Queen's 
 Counsel and Member of Parliament. At one 
 time it was thought possible that the two 
 brothers might have been law officers of the 
 Crown together. John was reserved for still 
 higher honours. 
 
 Karslake, although very successful as an 
 advocate, was not an orator. He impressed 
 by his fine manly bearing, deep voice, and 
 simple force, his knowledge of men and his 
 strong sense, and not by any polish in his 
 language or any subtlety of thought or ex- 
 pression. His literary 'relaxation was the 
 study of poetry, of which his mind had 
 a great .store. Although born at Croydon, 
 there was a touch of Devonian breadth in 
 his pronunciation of English which, like the 
 suspicion of provincialism in Mr. Gladstone's 
 tones, added to the effect.
 
 186 KARSLAKE. 
 
 Coleridge, whose style and tactics were the 
 very opposite of Karslake's, found him his 
 most formidable opponent. A manner like' 
 Karslake's was best adapted to sweep away 
 the cobwebs of a subtle argument, especially 
 when a jury were the judges. 
 
 There was a little of the dandy about 
 Karslake, without any trace of effeminacy. 
 On one occasion when, as counsel, he had 
 to take part in a " view " on a wet day, 
 he astonished all present by the elaborate 
 character of the boots and gaiters which were 
 brought for him. 
 
 The career of Karslake was an example 
 of great success broken off in its midst, which 
 we must go back to the time of Sir William 
 Follett, another Devonshire man, to parallel. 
 Karslake's life since 1876, when he retired 
 from active work, had a melancholy interest 
 for the profession of which he was so long 
 an ornament. His loss of sight was a blow 
 which is great enough in itself, but under 
 which men have often managed to live cheer- 
 fully and even usefully. For some time this 
 was Karslake's case. He was frequently to
 
 "THE CLEVEREST MAN HE KNEW." 187 
 
 be seen in the Temple, he would repeat the 
 grace in the hall of his Inn, and was fond 
 of gathering round him a knot of friends 
 whom he would amuse out of his fund of 
 anecdote. 
 
 A good story is told of him on one of 
 these occasions. Although no longer in 
 office, Karslake was habitually consulted by 
 Cairns in regard to men at the Bar who 
 applied to him for appointments and whom 
 Karslake was likely to know. Cairns's secre- 
 tary arrived at Karslake's chambers one 
 afternoon when he was surrounded by his 
 friends and in the middle of a tale. " The 
 Chancellor wants to know what you think 
 of Bateson of the Western Circuit," asked 
 the secretary. " Bateson," said Karslake ; 
 " why, he was the cleverest man I ever knew. 
 I'll tell you why presently ; but let me finish 
 this story first." He finished the story, and 
 then turning in the direction of his new 
 visitor, said, " Now, Graham, I will tell you 
 why I think Bateson the cleverest man I 
 ever knew." But the secretary was gone. 
 " Well," said Karslake, " I will tell you fellows
 
 1S8 KAESLAKE. 
 
 the reason, because it is rather a good story. 
 The fact is that Bateson was the only man 
 jyv r ho ' ever robbed me of a fee. That is why 
 I call him the cleverest man I ever knew." 
 Thereupon he proceeded to relate how Bateson 
 had been an attorney on his Circuit, how he 
 had owed Karslake fees, and how by some 
 ingenious shift he had avoided paying them. 
 Meanwhile the Chancellor's secretary, who 
 was a busy man and could not wait to hear 
 stories, posted off to the Chancellor and 
 reported that it was all right about Bateson. 
 Karslake had said that he was the cleverest 
 man he ever knew. So the lucky Bateson 
 was made a County Court Judge, and to this 
 day does not know that he owes his place 
 to the neglect of a Chancellor's secretary to 
 wait for the end of a story, 
 
 It gradually became apparent that Kars- 
 lake's loss of sight was only a symptom of 
 general failure. He became less and less 
 himself, both physically and intellectually, 
 and the news of his death, five years after his 
 retirement, was received without surprise. 
 
 His popularity with the Bar and solicitors
 
 THE IDEAL BARRISTER. 189 
 
 was probably greater than that of any 
 Attorney-General of the generation, and was 
 due to his total absence of affectation or 
 assumption, and his genuine kindliness in 
 manner and act. At one time it was ex- 
 pected, with considerable confidence, that he 
 would be the successor of Chief Baron Kelly, 
 believed to be willing to make way for him, 
 in which case the Western Circuit, already 
 represented by two Chief Justices, would have 
 had a third chief on the Bench an honour 
 which it is now impossible for any Circuit 
 to claim. But Kelly was not amenable, so 
 that Karslake did not even obtain the name 
 of a judge. It is best perhaps that his 
 memory should linger among us as a simple 
 barrister, of which character he was in the 
 opinion of many an ideal representative. 
 
 Karslake in his palmy days at the Bar made 
 a great deal of money, and left 200,000 
 when he died, which he divided equally among 
 his brothers and sisters.
 
 BENJAMIN. 
 
 1866-1883 
 
 BENJAMIN was not a judge through the 
 accident of his birth and adventurous history. 
 Lord Coleridge wished that he should be 
 made a judge, but the powers that were at 
 that time overruled the suggestion. The last 
 waves of the tempest aroused by the war of 
 North and South in America had then hardly 
 subsided, and probably it was thought best 
 not to risk offence by raising to the English 
 Bench a man who had taken a prominent 
 political part on the losing side. In May, 
 1880, while stepping out of a tram-car in 
 Paris, Benjamin had a fall, from the effects 
 of which he never fully recovered ; and there 
 was no doubt of the wisdom of the decision 
 of a man in his seventy-second year to retire
 
 EQUANIMITY. 191 
 
 while he could, in view of the opinion of his 
 physicians that his state of health had taken 
 a turn requiring rest and freedom from excite- 
 ment. If he could in his retirement have 
 been persuaded to give to the world some 
 account of a life full of interest and adventure, 
 a natural curiosity would have been gratified ; 
 but this was a task from which a nature like 
 Benjamin's shrank. He had a horror of any 
 approach to brooding on the past, and made 
 a practice of periodically destroying all his 
 old letters and papers. In his seclusion he 
 found himself unable to do much work to his 
 book on " Sale," which was eventually pub- 
 lished under new editors, and fifteen months 
 from his retirement Benjamin died. He 
 viewed his approaching death with the equani- 
 mity of a philosopher. The wasting nature 
 of his disorder enabled him to know very 
 closely how many weeks and days he would 
 live, but he maintained his habitual cheer- 
 fulness, and his last days were gratified by 
 the magnificent reception of him given in the 
 Inner Temple Hall in June, 1883. Having 
 then taken leave of the English Bar, he re-
 
 192 BENJAMIN. 
 
 turned to Paris, where his wife and daughter 
 lived, and died in the house in the Avenue 
 jde Jena, which he had built and furnished at 
 great cost. 
 
 Benjamin's parents were British subjects of 
 Jewish extraction, who some time within the 
 first ten years of the century emigrated from 
 England, settling at first in the island of 
 St. Croix in the West Indies, where Judah 
 Philip Benjamin was born. This island, 
 originally French, had become Danish ; but in 
 1811, when Benjamin was born, was British, 
 reverting in 1814 to Denmark. Benjamin was, 
 therefore, both a native-born British subject 
 and an Englishman by descent, and this status 
 was recognized when he was called to the Bar 
 in England. 
 
 The assertion of rights over British subjects 
 for whom this country insisted on searching 
 on board the ships of other nations had led 
 to the war then carried on with the United 
 States, on the cessation of which the Benjamin 
 family passed to the continent of America and 
 settled at Wilmington, North Carolina. The 
 son became a student at Yale College, and at the
 
 GENTLENESS. 193 
 
 age of twenty-one entered the legal profession 
 at New Orleans. Benjamin's professional suc- 
 cesses in America, as in England, began with 
 the production of a book which was a codi- 
 fication of a branch of the law of Louisiana, 
 and they culminated in his being sent to 
 Washington as a senator for that state. 
 
 A story told of him at this period illustrates 
 Benjamin's gentleness of disposition, and at 
 the same time the absence of conventionality 
 in manners in the United States at that date. 
 Benjamin did his best to introduce a more 
 friendly personal feeling than existed among 
 politicians of opposite views by giving enter- 
 tainments to which partisans of various shades 
 were invited. An invitation to dinner was 
 sent to Andrew Johnson, afterwards President 
 of the United States on the death of Lincoln, 
 among others, but no answer was received. 
 Benjamin and Andrew Johnson happened to 
 meet, when Benjamin asked whether his 
 invited guest was coming. Johnson appeared 
 to have no notion that any answer was 
 expected of him, and said that perhaps he 
 was coming and perhaps he was not an 
 
 o
 
 194 BENJAMIN. 
 
 answer which Benjamin was forgiving or 
 politic enough not to resent. 
 
 About this time occurred an event which 
 might have turned Benjamin's history in 
 altogether a different direction ; that is, an 
 offer by President Pierce to Benjamin of a 
 judgeship in the Supreme Court of the United 
 States. The effect which the acceptance of 
 this offer might have had on subsequent 
 events might be made the subject of curious 
 speculation. On the one hand, the war 
 between North and South might have ended 
 much more quickly ; and, on the other, the 
 legal literature of the United States might 
 have been enriched by some masterly judg- 
 ments, while the English Bar would have been 
 poorer. 
 
 Benjamin did not accept the offer; and it 
 is matter of general history that when the 
 Southern States seceded from the Union one 
 by one he declared to stand by his state of 
 Louisiana, in a speech which Sir George 
 Cornewall Lewis said " could not have been 
 better done by our Benjamin," and that he 
 became Mr. Jefferson Davis's Attorney-General,
 
 INDEPENDENCE. 195 
 
 Minister for War, and Secretary of State 
 successively. 
 
 Upon the surrender of General Lee, Benja- 
 min's life was in danger ; and after many hard- 
 ships and hairbreadth escapes, he managed, 
 in an open boat, to reach one of the " sponge- 
 islands" off the coast of Florida. Thence 
 he reached Nassau, New Providence, where 
 he was under British protection, and whence 
 he started for England in an English steamer, 
 with all the security with which the recent 
 Slidell and Mason incident afforded. 
 
 On January 13, 1866, Benjamin was ad- 
 mitted a student of Lincoln's Inn, and in 
 Trinity Term of the same year, after six 
 months' probation, was, by special grace, 
 called to the Bar. As an example of the 
 accumulation of misfortunes, it is remarkable 
 that all his available capital at this time was 
 locked up in Overend, Gurney, and Co. ; but at 
 this period he was frequently a contributor to 
 the London press, and his friends in America 
 did him the service of buying his library, 
 which had been confiscated with the rest of 
 his property, and sending it to him.
 
 196 BENJAMIN. 
 
 It was characteristic of Benjamin that even 
 at this low point in his fortunes, he did not 
 "allow himself to be under-estimated. One 
 day, as he sat in his chambers in Lamb Build- 
 ing, the boy who served as his clerk entered 
 his room with a load of papers almost as big 
 as himself. A cheque for the modest sum 
 of five guineas came with them, and on it was 
 the name of a well-known firm of solicitors 
 whom it was important for Benjamin to con- 
 ciliate. The papers lay on Benjamin's table 
 for some days, when a clerk called and took 
 them away. Soon after he returned, and told 
 Benjamin that there must be some mistake, 
 as the tape had not even been untied. " There 
 is no mistake," said Benjamin ; " the fee sent 
 covered taking in the papers, but not reading 
 them." The clerk returned discomfited to 
 his principal, who went to see Benjamin him- 
 self, and set matters right with a further five 
 and twenty guineas. Afterwards, when Ben- 
 jamin was better known, this same solicitor 
 reminded him of the case, and said that it 
 was a point of American and English law 
 upon which his clients insisted on having
 
 REMARKABLE SUCCESS. 197 
 
 Benjamin's opinion. "If you had told me 
 that at the time," said Benjamin, " I should 
 not have looked at those papers for twice 
 the fee." 
 
 He chose the Northern Circuit, and at 
 Liverpool found that, from the relations be- 
 tween the solicitors of that port with their 
 brethren in New Orleans, he was not without 
 some introduction to business. In August, 
 1868, he brought out his book on " Sale," 
 and his reputation increased so rapidly that 
 he gradually withdrew himself from Nisi Prius, 
 which class of practice was less congenial to 
 him than the argument of questions of law, 
 and reserved himself for business in Banco. 
 
 His admission within the Bar was probably 
 a little postponed out of deference to the sus- 
 ceptibilities of the Government of the United 
 States ; but he was made a Queen's Counsel 
 of the County Palatine of Lancaster, with a 
 patent of precedence dating from July 29, 
 1872, and afterwards a full Queen's Counsel. 
 In April, 1875, he was made a bencher of 
 Lincoln's Inn, and for the last four years con- 
 fined his practice ordinarily to the House of
 
 198 BENJAMIN. 
 
 Lords, the Judicial Committee of the Privy 
 Council, and the Court of Appeal. 
 s Benjamin was not possessed of any graces of 
 manner or appearance. He was a short, round 
 man, with a strong American accent, pro- 
 nouncing "jury" as if it were "jewery." 
 His one good feature was a fine pair of brown 
 eyes, and in speaking he had a way of taking 
 off his spectacles and pointing his arguments 
 with them in his hand, putting them on again 
 if he had to read. Benjamin owed his success 
 to his great knowledge of legal principles and 
 his extraordinary powers as a dialectician. 
 Fabulous statements were made as to his 
 forensic earnings ; but all that can be said 
 with certainty is that, for several years before 
 his retirement, his professional income for the 
 year ran to five figures. 
 
 No doubt his fees were large, and on one 
 occasion Benjamin opened the eyes of a client 
 who wished for a consultation at his private 
 residence by saying quietly, " Very well ; but 
 my fee is three hundred guineas " a prohibi- 
 tive tariff, with which it would be well if lead- 
 ing lawyers generally fenced their hours of ease.
 
 SOCIAL HABITS. 199 
 
 Several reasons have been assigned why he 
 was not offered a judgeship in England. Some 
 have already been given ; but it is enough to 
 say that when he was young enough for the 
 office he was too young a member of the 
 English Bar, and when he had been called long 
 enough he was rather too old in years. 
 Between his retirement and his death a 
 Canadian suitor offered him two thousand 
 guineas to advocate his cause in the Judicial 
 Committee of the Privy Council ; but Benjamin 
 was not to be tempted. 
 
 It is to the credit of the English Bar that 
 his rapid progress excited no jealousy. The 
 simplicity of Benjamin's manners, his entire 
 freedom from assumption, and his kindness 
 of heart endeared him to his professional 
 brethren. 
 
 He seldom went into society, and dined 
 almost invariably at the table by the fire in 
 the Junior Athenaeum Club, smoking his cigar 
 afterwards in the billiard-room. In the Vaca- 
 tion he always went to France, and was fond 
 of spending the summer in the Pyrenees. His 
 great powers made a profound impression upon
 
 200 BENJAMIN. 
 
 the solicitors who were his clients. On one 
 occasion, a solicitor apologized for leaving, as 
 _part of Benjamin's instructions, a document in 
 Spanish, and said that he would send a trans- 
 lation next day. " Don't trouble yourself to 
 do so," said the counsel ; " I read Spanish." 
 " Well, Mr. Benjamin," said the client, " what 
 don't you know ? " 
 
 In return for what he received from the Bar, 
 Benjamin identified himself with its interests, 
 and no counsel was more fearless in his asser- 
 tion of the right to a patient hearing which of 
 late years had been rather encroached upon by 
 a fondness for the Socratic method on the 
 Bench. 
 
 At the end of the session of 1881, Benjamin 
 was arguing a case in the House of Lords, 
 with Lord Selborne presiding. The learned 
 counsel very early in his argument formulated, 
 after his manner, the propositions of law for 
 which he was about to contend. One of these, 
 when put in its bare form not supported by 
 the substructure of reasoning which Benjamin 
 could make to look so solid and compact, nor 
 illustrated by example after example from his
 
 WILL-MAKING. 201 
 
 rich imagination, drew from Lord Chancellor 
 Selborne the word " Nonsense ! " Benjamin 
 stopped short, slowly put his papers together, 
 tied the tape round them, made a low bow, 
 and left the bar of the House. His junior had 
 immediately to fill the breach ; but before he 
 had proceeded far in his argument, the Lord 
 Chancellor said that he was sorry that Mr. 
 Benjamin had left the House, and he was 
 afraid he was the cause of it in saying what 
 he ought not to have said. This incident 
 happened shortly before Lord Selborne found 
 it necessary, through indisposition, to abstain 
 for a time from the labours of his office. 
 
 Benjamin appointed two members of the 
 English Bar his executors, and left 60,000 
 personalty and his valuable house in Paris 
 equally to his wife and daughter. He was 
 one of the few lawyers who made their own 
 wills successfully. His will was entirely in 
 his own handwriting, and conscious of his own 
 rather mixed nationality, he took care that it 
 should be in accordance with both English and 
 French law. Knowing from experience how 
 difficult the proof of domicile sometimes is, he
 
 202 BENJAMIN. 
 
 took occasion, as if casually, to introduce into 
 his will the statement that he meant to live the 
 remainder of his life in France. The question 
 arose whether the will ought not first to be 
 proved in France ; but, under a statute which 
 he no doubt had in view, the will of a British 
 subject domiciled abroad may be proved in 
 England without any proceeding in the foreign 
 country. Thus he was all his life a British 
 subject, had been a senator of the United 
 States and the Confederate Attorney- General, 
 became domiciled in England, and died a 
 domiciled Frenchman. 
 
 The success of Benjamin at the English Bar 
 is without parallel in professional annals. 
 There can be nowhere else an example of a 
 lawyer coming from his own to a foreign 
 country, and in fourteen years reaching the 
 highest places at the Bar which he has adopted. 
 In fact, the lawyers of the United States and 
 of England are thoroughly at home with one 
 another. The converse case to that of Ben- 
 jamin might happen at any time, if the 
 necessary circumstances existed. No English 
 lawyer of the same qualifications as Benjamin
 
 AMERICAN AND ENGLISH BARS. 203 
 
 has settled in the United States ; but members 
 of the English Bar have, on many occasions, 
 appeared before the Law Courts in the United 
 States for English clients, and have always 
 been received with the greatest cordiality, and 
 been given the privileges of the Bar without a 
 moment's question. Benjamin was received in 
 England not as a Southerner, or in any other 
 character than as a man of intellect, well 
 qualified to practise the law in this country ; 
 and, as such, he succeeded as he deserved 
 to succeed.
 
 PHILLIMOKE. 
 
 1867-1883. 
 
 THE era with which we are dealing is one of 
 disappearances of legal institutions, and 
 amongst them we must count the civilian 
 lawyer. He has been disestablished, though 
 not disendowed, both proctor and advocate, for 
 when his privilege of monopoly in certain 
 Courts was taken away he was allowed ample 
 compensation. In fact, he was given as much 
 as he asked, the Government taking each man 
 at his own estimate of profits, and so saving 
 the trouble of investigation, to the chagrin of 
 those who looked for a reward for modesty in 
 their figures, and to the perpetuation of the 
 experience that others take men at their own 
 valuation. 
 
 Doctors' Commons, in St. Paul's Churchyard 
 a name execrated on the seaboard of the
 
 DOCTORS' COMMONS. 205 
 
 continent during the French wars, as a " devil 
 from whose clutches there was no escaping "- 
 never so ancient or so distinguished an institu- 
 tion as any one of the Inns of Court, has 
 become some time part of the ordinary brick 
 and mortar of the City of London, and Sir 
 Robert Phillimore was the last of the judges 
 of the High Court of Admiralty, and of the 
 purely civilian lawyers on the Bench. 
 
 Phillimore was made of a material of which 
 judges are seldom made. He had neither the 
 worldly wisdom, the natural shrewdness, the 
 combativeness, or the intellectual powers, each 
 of which may bring a man to the Bench. But 
 he had in the first place the great requisite of 
 belonging to a family which was within the 
 clique of civilian lawyers. His father, Dr. 
 Joseph Phillimore, was Eegius Professor of 
 Civil Law at Oxford, a chancellor of three 
 dioceses, a member of Parliament, and the 
 editor of reports in the Ecclesiastical Courts 
 from 1809-1821. His sons were men of 
 some distinction. The ablest of them was 
 undoubtedly the eldest, John George Philli- 
 more, Q.C., in whom the force of the family
 
 206 PHILLIMORE. 
 
 appears to have been concentrated, but who, 
 from that very reason, did not attain much 
 success in the Civilian Courts. He married a 
 daughter of Lord Justice Knight-Bruce, was 
 the first lecturer on constitutional law at 
 the Inns of Court, and used bitterly to inveigh 
 against the injustices of his profession. The 
 close connection of the profession and the 
 family in the Civilian Courts was touchingly 
 illustrated by the dedication of Phillimore's 
 "Ecclesiastical Law" to the son of the author. 
 The second son, Eobert, was educated at 
 Wesminster, and in due course took a second 
 class in classics at Oxford. He was admitted 
 an advocate and called to the Bar, and in his 
 turn became official to two archdeaconries, 
 and chancellor to three dioceses. He proved 
 himself a fluent speaker in Court, was indus- 
 trious, and amassed a great amount of legal 
 information. He covered nearly the whole 
 ground of the practice of his Court in two 
 books, one on ecclesiastical, and the other on 
 international law. Both of them have much 
 good matter in them, but are not highly 
 reputed for exposition. A high Churchman,
 
 MUCH OVERRULED. 207 
 
 but with a strong faith in Liberal principles, 
 and a close personal friend of Mr. Gladstone, 
 he entered Parliament as member for Tavistock, 
 and carried a useful Act for the introduction of 
 the vivd voce examination of witnesses in the 
 Ecclesiastical Courts, although this Act was 
 the beginning of the end of the disestablish- 
 ment of his cloth. As soon as evidence began 
 to be taken as in the Common Law Courts, a 
 demand arose for lawyers possessing the powers 
 of advocacy and of cross-examination, and the 
 monopoly was doomed. 
 
 He obtained his share also of the Admiralty 
 side of civilian practice, and became Judge oi 
 the Cinque Ports and Admiralty Advocate. 
 On Dr. Lushington retiring, he was made 
 Judge of the High Court of Admiralty, and 
 Official of the Archbishop of Canterbury, or 
 Dean of the Arches. 
 
 As Dean of the Arches he was frequently 
 before the public, at a time when the struggle 
 between the two extreme parties in the Church 
 was at its height, and the public became used 
 to the spectacle of Sir Eobert Phillimore 
 deciding in favour of high ritual, and the
 
 208 PHILLIMORE. 
 
 Judicial Committee overruling him. He 
 supported his son, Dr. Walter Phillimore, 
 who, as Chancellor of Lincoln, had declined 
 to order a clergyman to admit into his church- 
 yard a tombstone inscribed to the memory of 
 the daughter of " the Rev. Henry Keet," who 
 was a Wesleyan minister ; but the Judicial 
 Committee were unable to find any reason for 
 Church of England clergymen monopolizing 
 the title of Reverend. In Jenkins v. Cook, he 
 decided that a Bristol gentleman who had an 
 expurgated edition of the Bible in his house 
 for family use, and would not state that he 
 believed in the devil, must be excluded from 
 the sacrament as an open and notorious evil 
 liver, and again the Judicial Committee dis- 
 agreed with him, as in several other cases. 
 The redeeming merit of his judgments was 
 that they were expressed in good English, 
 and his manner in hearing cases left nothing 
 to be desired in point of courtesy and patience. 
 When the Judicature Acts were passed, 
 Phillimore had to take his share of divorce 
 cases, and perhaps his most remarkable appear- 
 ance on the Bench was when, as Judge of the
 
 LAST OF THE ADMIRALTY JUDGES. 209 
 
 Admiralty Court, he sat as a member of the 
 Court for the Consideration of Crown Cases 
 .Reserved on the question whether manslaughter, 
 punishable in an English Court, could be com- 
 mitted by a foreign ship negligently running 
 down a British ship within three miles of our 
 shore. 
 
 The civilian lawyers were distinguished, 
 with notable exceptions like Lord Stowell, 
 rather by learning than capacity, by subtlety 
 in argument rather than depth of insight, 
 For the future, the law which they practised 
 will less and less possess a special class of 
 practitioner devoted to it alone, but will be 
 taken up as occasion requires by the ordinary 
 practitioner who may have turned his atten- 
 tion in that direction. This is not a subject of 
 regret, as special lawyers and special Courts 
 have a tendency to narrowness ; and it would 
 be a step in the right direction if the Probate, 
 Divorce, and Admiralty Divisions were merged 
 in the Queen's Bench, or, at all events, if 
 divorce were distributed in turn among the 
 Queen's Bench judges, or certain of them to 
 be chosen like the election judges.
 
 210 PHILLIMORE. 
 
 Phillimore represented the transition period 
 between the old school and the new. His 
 -name will be remembered at once as the last 
 of the Admiralty judges and as the introducer 
 of the modern system of trial in ecclesiastical 
 causes. His retirement from the Bench was 
 somewhat overshadowed by the fact that on 
 the morning of the day on which he took leave 
 of the Bar Wednesday, March 21, 1883 Sir 
 George Jessel died, but the high estimation in 
 which he was held by his brother-judges and 
 the legal profession generally found full expres- 
 sion from the mouth of the Attorney-General 
 on that occasion.
 
 WATKIN WILLIAMS. 
 
 1880-1884. 
 
 THE sudden and early death of Mr. Justice 
 Williams cut short a judicial career of much 
 promise, and left little more to relate than the 
 history of a lawyer who succeeded to the 
 highest ambition of English lawyers that is, 
 the Bench by perseverance, talent, and the 
 full use of his opportunities. As in the case 
 of many other successful lawyers, the law was 
 not the first profession of Mr. Watkin Williams. 
 There is often a Rosaline before there is a 
 Juliet, and in his case it was medicine and not 
 law to which he first devoted himself. He 
 duly passed the examinations for his diploma 
 at University College Hospital, and for some 
 time was house-surgeon. 
 
 Whether the knowledge thus acquired was 
 of use to him on the Bench is a question upon
 
 212 WATKIN WILLIAMS. 
 
 which there may be a difference of opinion. 
 Experts in a science like medicine consider it 
 -'better that a judge should have no more know- 
 ledge of the science about which they give 
 evidence than that possessed by a man of 
 ordinary education. If he knows more he 
 is apt to form an opinion based upon his own 
 imperfect knowledge instead of carefully weigh- 
 ing the opinions on both sides. It is also 
 a little interesting to remark that, although 
 Mr. Justice Williams's medical advisers in- 
 formed him some months before his death that 
 he suffered from an aneurism of the aorta, he 
 would not believe it. After his short rest in 
 the spring, he professed never to have felt 
 better in his life, and his sanguine tempera- 
 ment put aside the positive opinion of his 
 doctors and the warnings which his own know- 
 ledge must have conveyed. 
 
 Scientific knowledge, however, which may 
 be a doubtful advantage on the Bench, may be 
 most useful at the Bar ; and, in cases of com- 
 pensation for personal injuries, Mr. Williams 
 found an acquaintance with anatomy stand him 
 in good stead. It was a long time, however,
 
 HOLDING BRIEFS. 213 
 
 before lie had the opportunity to test his 
 capabilities. Being the son of a Denbighshire 
 parson and without interest, he made progress 
 at first purely by dint of " devilling." He used 
 to attribute the start he thus obtained to the 
 advice of the late Mr. Macnamara, who told 
 him to be at Westminster and Guildhall every 
 morning punctually at half-past nine, and be 
 ready to " hold " any briefs which might be 
 thrown in his way by learned friends over- 
 burdened with work. He followed this advice 
 to the letter, and gradually began to get briefs 
 of his own. His time out of Court he devoted 
 to a little book called " An Introduction to the 
 Practice and Pleading in the Superior Courts 
 of Law/' which was published two years after 
 his call, and which, although not an ambitious 
 work, served to show that he was acquainted 
 with the mysteries of the Common Law Pro- 
 cedure Acts. 
 
 His marriage, first, with a niece of Mr. 
 Malins, afterwards Vice - Chancellor, and 
 secondly, with the daughter of Mr. Justice 
 Lush, in the year when that learned judge 
 was elevated to the Bench, helped, no doubt, 
 
 p 3
 
 214 WATKIN WILLIAMS. 
 
 to bring him into prominence, and his con- 
 nection with a member of a City firm of 
 Solicitors directed his practice into the lucrative 
 channels of commercial law. 
 
 Meanwhile he very early attained a seat 
 in Parliament, which lawyers look upon as a 
 veritable flight of steps in the professional 
 ladder, and which Welsh lawyers have special 
 facilities in obtaining. His genial, open man- 
 ner recommended him to his constituents, and 
 probably that part of his career which had the 
 least drawback was his twelve years' con- 
 nection with the Denbigh boroughs as Member 
 of Parliament. After five years in Parliament 
 he ventured to take silk, and managed to 
 maintain his forward progress. At the general 
 election in 1880 he was returned for Carnar- 
 vonshire, but in November was offered and 
 accepted a judgeship. 
 
 An incident of his elevation to the Bench 
 supplies the key to much of his character. At 
 that time, the abolition of the office of Chief 
 Justice of the Common Pleas and Chief Baron 
 was much discussed, and on the elevation of 
 Mr. Justice Lush to the Court of Appeal, and
 
 A TRIBUNAL OF COMMERCE. 215 
 
 its being rumoured that his son-in-law would 
 succeed him, Mr. "Watkin Williams wrote to 
 his constituents and declared that he never 
 would accept an " ordinary judgeship." Much 
 capital was made out of this unlucky phrase. 
 Verses were written with the refrain, " I will 
 not be an ordinary judge," and Westminster 
 Hall was in convulsions of laughter at the 
 incident, which was pronounced "just like 
 Watkin." However, Williams thought better 
 of it, probably after a calm consultation with 
 his father-in-law. He accepted the ordinary 
 judgeship, and attended the council of judges 
 which met shortly after his appointment to 
 consider the abolition of the Common Pleas 
 and Exchequer Divisions, and of their respec- 
 tive chiefs. Mr. Justice Williams submitted a 
 paper in which he advocated the abolition of 
 the divisions, but the retention of the chief- 
 ships, and which he sent to the newspapers. 
 
 Early in the following year, upon the eleva- 
 tion of Mr. Justice Mathew to the Bench, 
 Justices Williams and Mathew sat for some 
 time as a Divisional Court in one of the Com- 
 mittee Kooms of the House of Lords. This
 
 216 WATKIN WILLIAMS. 
 
 Court at the time went by the name of the 
 Tribunal of Commerce, and the rapidity with 
 which Mr. Justice Williams made up his mind, 
 and his familiarity with the doctrines of mer- 
 cantile law, were conspicuous. 
 
 Upon the question of prisoners' statements 
 Williams again illustrated the impulsiveness 
 of his nature. After the decision of the judges, 
 in November, 1881, was announced, he wrote 
 to the newspapers practically declining to be 
 bound by it, and declaring that "nothing 
 short of an Act of Parliament will ever induce 
 me to deprive a prisoner of his right " of 
 making a statement to the jury of facts not 
 proved in evidence. 
 
 In his mode of trying prisoners he was 
 exceedingly fair to the accused, and once, 
 when asked whether those whom he tried 
 appeared to have any general characteristics, 
 he replied, " They are just like other people ; 
 in fact, I often think that, but for different 
 opportunities and other accidents, the prisoner 
 and I might very well be in one another's 
 places." 
 
 In the ordinary course of business at Nisi
 
 ENTHUSIASM. 217 
 
 Prius his quickness of apprehension and that 
 knowledge of law which is acquired by ex- 
 perience made him a very efficient judge. If 
 he formed an opinion rather hastily and ex- 
 pressed it, he would candidly withdraw it on 
 discovering his mistake. 
 
 His judgments upon new or complicated 
 points of law were not so satisfactory, his style 
 being somewhat diffuse and his reasoning 
 wanting in closeness. A judge who was on 
 the Bench less than four years cannot be ex- 
 pected to have added much to the literature 
 of the law, and Williams, whether from acci- 
 dent or because he sat frequently at Nisi Prius, 
 contributed rather less than his proportion. 
 
 His nature had too much enthusiasm in it 
 for the cold impartiality of the Bench. Doubt- 
 less in this respect he would have improved 
 by experience and under a conscientious desire 
 to keep his natural impulsiveness in check. 
 As things are, his name will recall rather the 
 successful lawyer and politician than the judge 
 who left any mark on English law.
 
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