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The Judiciary




1. The Judges of the Superior Courts



Note on Sources


Around 20 of the superior court judges of this period have written autobiographies or memoirs or, more commonly, been the subject of biographies.1 Predictably, their value to the historian is enormously variable and few are of recent date;2 compared with politicians, even the most renowned judges (unless they were Lord Chancellors) do not attract biographers.3 However, almost all (Alexander CB is one notable exception) have an entry in the Oxford Dictionary of National Biography, and in some cases these have been considerably revised from the original Dictionary of National Biography entry; compare, for example, C. W. J. Allen’s entry on Sir Fitzroy Kelly.4 The best known also feature in the Biographical Dictionary of the Common Law.5


Collective judicial biographies are nothing new. Among the earliest, and best known, are John, Lord Campbell’s sequences of Lives of the Lord Chancellors 6 (the volumes which are famously said to have added a new terror to death) and Lives of the Lord Chief Justices. 7 The former, which ended with Lyndhurst, has been continued in very different, and infinitely more reliable, fashion first by J. B. Atlay8 and then by R. F. V. Heuston,9 but the later Chief Justices (after Tenterden) are (p.960)covered only briefly in A. Mockler’s Lions under the Throne (1983). Campbell’s compilations are not the only ones that require great caution in their use. James Grant’s The Bench and Bar, 2 vols (1837–8) is tempting in its wide coverage and pungent style but is not to be trusted without corroboration.10Unfortunately, for the first half of the nineteenth century corroboration is hard to come by except in the often rather brief and not always very informative pages of Edward Foss’s The Judges of England, 9 vols (1848–64), though that much reviled reporter Espinasse dealt interestingly with a few of his higher-achieving contemporaries11 and a few of the most famous are in W. C. Townsend’s Lives of Twelve Eminent Judges, 2 vols (1846) or W. H. Bennet’s Select Biographical Sketches (1867). Obituaries, particularly in the Law Magazine, can be informative and not uncritical, but it is only after c.1870 that those in The Times regularly attained the amplitude later generations came to expect.


Posterity is better served for the later Victorian judges, not only through the much more numerous memoirs and autobiographies of members of the bar, but also in two much used collections, written by W. D. I. Foulkes12 and Edward Manson,13 respectively. There is also an interestingly idiosyncratic selection by ‘E’ (Edward Bowen Rowlands) in the Strand Magazine for 1896.14 The fullest and most scholarly, however, is Van Veeden Vechter’s survey in the volumes of Select Essay in Anglo-American Legal History.15 After two post-First World War collections, Lord Birkenhead’s Fourteen English Judges (1926) and Evelyn Graham’s Fifty Years of Famous Judges (1930), the fashion for such publications waned, though Sir William Holdsworth maintained his practice of providing succint appraisals of the leading judges of the period.16


Some of these sources provide valuable material on their subject’s judicial style and manner, but disappointingly few—Waddams’ book on Lushington17 and Bourguignon’s on Stowell18 are notable exceptions—offer a worthwhile analysis of the intellectual and ideological underpinnings of their judgments. In a few cases modern academic writings fill the gap; the American Journal of Legal History (p.961) issue ‘For a Bramwell Revival’ is one such,19 as is Burns’ article on Cottenham,20 but they are strikingly few, and it is now 50 years since C. H. S. Fifoot’s Hamlyn lectures on Judge and Jurist in the Reign of Victoria. 21


There are also disappointingly few studies of the operation of particular courts, especially the common law courts sitting in banc. A notable exception is Robert Stevens’ thorough examination of the jurisprudence of the House of Lords after the reconstruction of 1876, albeit couched in a rather constricting intellectual framework.22 We know very little, for instance, of the interaction of the judges in Pollock’s Exchequer, or the Queen’s Bench under Cockburn; yet even so able a judge as Bowen had few opportunities to make his mark in the Court of Appeal, where the custom had developed very early to confine the junior judges to short judgments.23


On the larger stage, the gaps are even more notable. While the changing attitude to precedent has been explored in some detail, there have been few if any attempts to elaborate on Stephen Hedley’s stimulating essay of more than a decade ago on such fundamental matters as the length of judgments; the resort to civil and other common law jurisdiction authorities; the role of textbooks and of extra-judicial authorities, religious, economic, sociological.24 Here, surely, is a fruitful field of study.



Appointment: Eligibility



Judges were appointed from members of the English bar, or for the civilian courts, from the advocates of Doctors’ Commons. After the Judicature Act 1875 a person appointed to the High Court had to be of 10 years’ standing, and those appointed directly to the Court of Appeal and House of Lords, the Master of the Rolls and heads of divisions, of 15 years. Only once did these requirements threaten inconvenience, when Sir Edward Carson was offered to be President of the PDA in 1905 when not qualified; fortunately he declined.25 Curiously, there is no formal legal qualification for Lord Chancellor, but as Canning found when (p.962) he wished to make Plunket Master of the Rolls, the English bar would assert its monopoly: Englishmen might go as judges to Ireland but there would be no reciprocity.26 Scotsmen and Irishmen were eligible to become additional members of the Judicial Committee, as Sir Joseph Napier did in 1868, and as ‘persons who have held high judicial office’ for two years they might, and did, become lords of appeal in ordinary after 1875.27


Since judges had to take the oath of allegiance, it was only with the repeal of the Test Act in 1828 that Roman Catholics and the most scrupulous dissenters became eligible. The first Roman Catholic, William Shee, was appointed in 1863 (followed by Mathew and Day), the first non-Christianized Jew, Sir George Jessel, in 1873.28


Well before 1914 it became a solecism to apply for a High Court judgeship, though someone who had turned down an offer might let it be known that he was open to a renewal;29 however, since governments preferred refusals not to become public knowledge it is difficult to know how common they were. Of the ten whom Duman names between 1800 and 1875, nine later held high judicial office, and most who refused a puisne judgeship successfully aspired to higher things.30 Once the Lord Chancellor acquired a permanent secretary who kept himself informed about the disposition of likely candidates, there were probably fewer rebuffs, and only a very few are known to have maintained their refusal; they include Sir Edward Clarke and Lord James because of political ambitions, and Harry Poland.31



Responsibility for the selection of judges


Constitutionally the Crown was advised on the appointment of the Lord Chancellor, chief justices, and the Master of the Rolls by the Prime Minister and on the Chief Baron and all common law puisnes and barons by the Lord Chancellor. The Archbishop of Canterbury advised on the dean of Arches and the(p.963) judge of the Prerogative Court of Canterbury, and there was some uncertainty over the judge of Admiralty.32 New positions of Vice-Chancellor of England and later the additional vice-chancellors fell within the Lord Chancellor’s sphere, but the lords justices of Appeal in Chancery and the Probate judge in 1857 came under the Prime Minister. The Judicature Acts preserved a broadly similar division; the Prime Minister chose the Lord Chief Justice and President of the PDA, the lord justices of appeal and lords of appeal in ordinary, leaving the Lord Chancellor the puisne judges and the Master of the Rolls.


In practice the position was much less clear cut. Judicial appointments were part of the political process, and in the early nineteenth century the monarch could still exert personal influence in three areas: (1) over the choice of a Lord Chancellor;33 (2) by vetoing personal enemies, as George IV did Thomas Denman; and (3) by advancing his favourites beyond their deserts, like Vaughan (the ‘judge by prescription’), or more quickly than they merited, like Leach.34 Royal influence, however, virtually ceased after 1830.


In practice, the appointment even of puisne judges was a government matter and one which in Salisbury’s time was brought before the cabinet.35 The Prime Minister and chief whip would expect to be consulted and at each end of the century Eldon and Halsbury accepted that party claims might suggest men they would not have chosen. Eldon did not conceal his low opinion of William Garrow and was seriously embarrassed at having to pass over Richard Richards as Vice-Chancellor for Liverpool’s choice, the Attorney-General, Sir Thomas Plumer.36 Halsbury willingly delayed filling his very first vacancy until election outcomes were clear and then chose an undistinguished lawyer, but prominent Tory campaigner, William Grantham.37 Not all Lord Chancellors were so compliant, nor all Prime Ministers so exigent. Brougham predictably claimed the Chancellor had sole responsibility; Chelmsford refused to appoint a Tory at Disraeli’s behest; Westbury told Palmerston he wanted to de-politicize puisne judgeships, and Gladstone claimed always to have let his Chancellors have the (p.964) final say.38 Personalities and political exigencies evidently affected the exercise of patronage; indeed other members of the government intervened at times, as Lord John Russell did in the 1830s.39


Conversely, Lord Chancellors had influence over the higher appointments. They were the best source of information for Prime Ministers who (Asquith excepted) had no personal knowledge of the bar, and after 1875 were responsible for the proper running of the courts.


Rather less clear is the role of the chiefs of the courts, and later the heads of the divisions of the Supreme Court. Lord Coleridge, who could draw upon family knowledge going back to Eldon’s day, asserted it was almost a convention for the chief to be consulted about a vacancy in his court, although he claimed only something akin to the role of a Bagehotian sovereign. He deprecated Halsbury’s break with the tradition40 and there is evidence for the practice from earlier decades. Though it is unlikely that such wilful Chancellors as Brougham and Campbell acknowledged any obligation to consult, even Campbell approved Eldon’s habit of consulting Ellenborough.41 Until the creation of the Lord Chancellor’s Office in 1885, no permanent official systematically influenced the process, but with the widening divide between common law and equity practitioners a Lord Chancellor’s personal knowledge of the ‘other’ branch might be rather inadequate and Muir McKenzie was rumoured at the bar to have a hand in the distribution of the loaves and fishes. He left few traces of his handiwork, and only in Schuster’s time can the officials’ part in judicial appointments be glimpsed.42



Age at appointment


Duman noticed a marked rise in the ages of judges at appointment, from 44 in the mid-eighteenth century to 56 in the third quarter of the nineteenth.43 In fact the mean age peaked in the last of his cohorts and after the Judicature Acts (p.965) stabilized at around 51, the bottom of the range (50 to 55) which witnesses before a royal commission in 1913 advocated. Duman offered three suggestions (not mutually exclusive) to account for the rise. First, with judicial salaries after 1825 remaining relatively constant, rising incomes may have made leading barristers delay their readiness to quit the bar, though since Edwardian high-flyers were making more money than ever, that may have become a less important factor. Conversely, a more crowded bar may have meant that even the best men could not rise so quickly, though the end of special pleaders and equity draftsmen practising under the bar contributed to the trend whereby fewer judges had less than 20 years behind them. After Alfred Thesiger (14) only Barnes (16) and Evans (18, and a former solicitor) had less than 20 and some had been much longer in the profession, Pearson and Jelf each for 37 years.44 The third possibility is that the path was blocked because men stayed on the bench longer, and there is some limited evidence to support this view.45


Another noticeable change is the rarity of the very young judge. It became almost unheard to reach the bench before the age of 40, as Patteson had in 1830. Alderson, 43, was made at the same time, and though these were additional judgeships, the advantages of younger judges had been urged in the debates on salaries in 1825 and this may have influenced appointments, for J. T. Coleridge (44) followed soon afterwards and common law judges tended towards (comparative) youth for some time; of 12 puisnes made between 1835 and 1854 only Crowder, Wightman, and Coltman were over 55.46


Thereafter, however, even this degree of precocity was unusual. In Duman’s next cohort only Willes at 41 and J. P. Wilde at 43 were under 45 (though the under-50s were Cairns, Bramwell, Jessel, Blackburn, and Hannen—about as distinguished a group as could be found). After the Judicature Acts Alfred Thesiger’s appointment at 39 (and direct to the Court of Appeal at that) was truly remarkable, and of the rest only Bowen and Barnes (each 44) and Atkin (45) were under 46. By 1917 Schuster was describing Hawke (48) as very young; the definition of youthfulness had advanced well into middle age.47


Really elderly new judges also became a rarity. Of the five men over 70 who were made judges, both Sugden and Campbell had already been Lord Chancellors of Ireland, Dodson was a stop-gap pending the abolition of his court and Bacon (p.966) was already the bankruptcy judge, made a vice-chancellor to save public money. That leaves only the very odd choice of Anthony Hart (70), to be Vice-Chancellor in 1827. Sexagenarians continued to be chosen, though most were political lawyers like J. F. Pollock, Thomas Wilde, Page Wood, and Frederick Thesiger. Fitzroy Kelly (69), was a bad choice for Chief Baron at so advanced an age and when Henry Manisty was chosen at 67 in 1876 it transpired that the Lord Chancellor (Cairns) and the Chief Justice (Cockburn) each felt the other would think him too old.48 He proved indeed to be the last one over 65 and after Fletcher Moulton (60) in 1906 the Liberals ceased to choose sexagenarians. There was no public explanation but since a 60-year-old would be eligible for full pension at 75, it helped meet criticism of elderly judges without imposing a retirement age.49



Social background


An examination of the occupational or social status of judges’ fathers requires considerable caution.50Paternal occupations are frequently omitted or may have changed over time; thus Sir Charles Russell’s father, a brewer, leased the busi- ness and settled down as a rentier.51 Some occupations embrace a wide spectrum of wealth and status; there is, for instance, an enormous gulf between John Campbell, a poor son of the manse, and George Mellish, son of the Dean of Hereford. And parental occupation may seriously mislead. John Rolt and Thomas Pemberton-Leigh for instance, sons of a merchant and a barrister respectively, experienced poverty in childhood, while Charles Darling, son of a land agent, became wealthy by collateral inheritance.52


With these caveats, and using Duman’s categories for convenience (but combining merchants and businessmen), at the start of the period judges were no longer drawn chiefly, or even largely, from major landed families. A few were baronets’ sons or came from ‘county’ families, but none were sons of peers (other than judicial peers).


Increasingly, they were recruited from the professions and from the business community53 and this remained true down to 1914, with the proportion hailing from the professions alone increasing from around a half to some 60 per cent. (p.967) Among the professions the law was the largest provider, followed by the clergy. While several of the best known judges (Parke, Bramwell, Jessel, Isaacs, Hamilton) came from a business background they never formed more than a quarter or so of the bench, which as a whole lacked business experience. Another of Duman’s conclusions demolishes a cherished myth of the bar: the bench was indeed open to the impoverished middle class, but the lower class was excluded; the barbers’ sons, Abbott and Sugden, were exceptions rather than examples, and not one judge of the nineteenth century had a working-class background.54


Where they were heterogeneous, however, was in their place of origin. They included a dozen Scots and nine Irishmen (either by birth or parentage), and at least seven from Wales. The Scots, remarkably, supplied four Lord Chancellors (Brougham, Campbell, Reid, Haldane) as well as Blackburn; Ireland contributed three of the greatest judges in Cairns, Macnaghten and Willes (some would give Russell a high place too); Sir William James was probably the most distinguished Welshman. If Cairns had adopted Coleridge’s suggestion the bench would also have been adorned by that exotic character Judah Benjamin.55



Education


The boyhood of most of these judges preceded the rise of the modern public school. Pre-Victorian education even within the best known schools was narrow and often unsatisfactory; the ‘bundle of virtues without a single redeeming vice’ who became Lord Hatherley was expelled from Winchester for rioting56 while that keen intellect J. F. Pollock quitted St. Paul’s in disgust.57 Some who missed out on a classical education regretted it58 and the proportion who had one was rising. In the last cohort some 60 per cent were public school educated, many at the ‘Clarendon schools’.59 As a provider of judges Eton stood alone, with 24, some 12 per cent of the total, and no other school comes close. Even so, the judiciary was not so public school dominated as other bastions of the establishment; the court, the cabinet and the Foreign Office.


Civilians apart, few judges read law at university, but almost three-quarters of them attended a university and a few, such as Herschell and Day, also studied (p.968) abroad.60 However, perhaps reflecting the broadening of the judiciary’s social composition, the proportion actually fell to not much more than half among those appointed in the third quarter of the nineteenth century, and considerably less among the common law puisnes. Many future judges distinguished themselves at university—Littledale, Maule, and Bickersteth were all senior wranglers for example—but as Maule, J. F. Pollock, and Bowen found, a great ‘varsity reputation was not an unmixed blessing at the bar.61


In the first half of the nineteenth century Cambridge reversed Oxford’s superiority as a provider of judges and for a time Trinity College acquired a quite remarkable record, supplying 14 of 33 judges appointed between 1835 and 1854; the college history suggests that its mathematical bent provided an analytical rigour which proved valuable to men who had to grapple with legal doctrine.62


If mathematics was valuable, it nevertheless lost its vogue and classicists came to dominate the bench. After 1895 all but a handful of new judges were university educated, and though a dozen post-Judicature Act judges were London graduates, it was the Oxbridge experience which was becoming increasingly characteristic of the bench. It brought future judges into early contact with other members of the ruling elite, removed the provincial accents of ambitious men like F. E. Smith and, if followed by a legal practice which did not embrace the ruder realities of economic and social existence, was prone to leave men like Ford North and Charles Bowen rather at sea with common juries and the experience of everyday life.63



Professional standing


There were no formal staging posts on the route to the bench. Becoming a bencher of an inn, even when it was not purely through seniority, was at best an indicator of existing status, and in the nineteenth century it became almost a perquisite of any new Crown counsel. 64 The serjeants no longer provided even junior judges on a regular basis and the rank no longer indicated either leadership in the profession or favour with the government.65


(p.969) Crown counsel rank counted for more, but a more liberal approach gradually devalued the currency, which no longer created any expectation of a judgeship. Still, after the appointment of three stuff gownsmen as judges in 1830, that became a rarity,66 hence the controversy when Campbell made Colin Blackburn a judge of the Queen’s Bench in 1859. Critics pointed to at least a dozen eligible QCs, implicitly insisting that save for the government’s law officers, judges should be drawn from the most successful members of the practising bar. There had been no similar outcry when Willes was appointed a few years earlier, but Willes had earned special consideration by drafting the Common Law Procedure Acts. Blackburn had neither great professional reputation nor public service to warrant his jumping the queue.67 Of course, critics were quickly disarmed by Blackburn’s remarkable quality as a judge. Even so, it remained exceptional for stuff gownsmen to become judges unless ( like Hall, Wickens, J. C. Mathew, and Parker) they had refused silk.68


The government had a range of positions to bestow upon favoured barristers, but very few proved a reliable predictor of promotion and the elected recordership of London, which had once been, was no longer.69 Before its abolition in 1830 the Chief Justiceship of Chester, the ‘Welsh cheese’ in the ministerial rat-trap, was a way station successively for Best, Copley, and Leach,70 and later on it was said that selection to go as Commissioner of Assize was a pretty strong indication. However, an examination of these commissioners shows that Bompas and Rose-Innes only became county court judges, while J. P. Murphy, Alderson Foote and John Forbes never made the bench at all; nor did W. English Harrison, although he went on three different circuits.71


Any successful Crown counsel had some claim to be considered for a judgeship; indeed it is said that Henry Hawkins’ great earnings and public fame virtually compelled his selection, and the reaction of his fellow judges confirms that unpopularity with the bench was not a disqualification.72 The parliamentary bar was so specialized as to weaken their claims,73 and the Old Bailey bar had such(p.970) a poor reputation that none of its regulars was chosen until Harry Poland, who twice refused. Horace Avory’s appointment in 1910 was taken as a sign that it had become respectable and R.D. Muir might also have been made a judge had he been willing to give up being junior Treasury counsel and take silk.74 As the provincial bars grew in reputation men were taken from their ranks, beginning with W. Rann Kennedy in 1891, soon followed by Bigham and Pickford.75


There were, however, good men who never received an offer. The collective memory of the bar held a list of the unlucky ones, though Sir Henry Dickens was unusual in openly acknowledging his acute disappointment when Haldane did not fulfil the expectations Loreburn had held out. The unfortunate case of Arthur Cohen was also well known. Persuaded to help out his party by declining Selborne’s offer in 1881, he was repeatedly overlooked for no apparent reason. Nor could the profession understand why F. A. Inderwick, the Admiralty leader, was ignored, though some said he was too much a Liberal for Halsbury’s taste. In some cases there were explanations not for public consumption, as with M. D. Hill, who had disclosed confidential government information.76


It was always acknowledged that successful advocates did not necessarily make good judges. Edward Marshall Hall, the most famous of his day, was never seriously in the running, not just because of his clashes with judges but because his whole personality seemed ‘unjudicial’.77 Strong and ostentatious religious beliefs do not seem to have been a disadvantage, though they were said to have held back Robert Lush. Indeed, while the Woolsack was occupied in succession by three men noted for their religious zeal (Cairns, Hatherley, and Selborne) piety may have been a positive commendation. It was insinuated that Cairns’ prayerful levees attracted some opportunist aspirants, though probably mostly for junior posts, and Alfred Wills was said to have won Selborne’s favour by his impeccable morals.78


A doubtful personal reputation could certainly count against a man. No one expressed much surprise that unstable ‘characters’ like William Ballantine and Charles Wilkins remained mere serjeants, and there were others with (p.971) eccentricities thought too extreme for the bench. Sir Charles Wetherell is probably the most notable, though Peel was prepared to make him Vice-Chancellor,79 and the best known instance in later times was W. O. Danckwerts (‘Danky’), whose explosive rudeness and insensitivity more than offset his immense ability. J. G. Witt is mentioned as another too astringent for official taste and the tone of his memoirs suggests that J. H. Balfour Browne, despite his great earnings, may have been a third.80



Politics


Judicial appointments had been politicized and assimilated to the system of ‘Old Corruption’ which governed Hanoverian Britain. Though purely professional achievement might lead to the bench (if not offset by the unfashionable political ideas or connections), it would seldom open up one of the great judicial offices. These had become the preserve of MPs who had served the government capably (most often as law officers) and might be depended upon to protect its interests on the bench. If their performance in Parliament or government disappointed, they would still be in line for a puisne judgeship, competing with loyal and influential MPs, with the pure professionals and with personal favourites of the Lord Chancellor or the King. And prospects might be dramatically changed by a realignment of parties.81


Judicial appointments might serve at least three political ends. First, a ministry would want at least the key positions to be held by men who shared its views and values; those who had made their name as defenders in state trials had to prove that their advocacy could be equally impassioned for the prosecution.82 Secondly, they attracted rising lawyers whose allegiance might be determined or at least influenced by prospects of preferment, and might detach opposition supporters, men who would ‘rat’ if their prospects seemed otherwise blighted.83 Thirdly, they (p.972) were rewards for men who had fought costly elections or given solid and active support in the House.


The first of these considerations became much less important from the 1820s onwards, with the end of the treason trials and more sparing prosecutions for political libels. Victoria’s ministries were seldom engaged in contests where the judges’ political views were likely to be important, until a series of controversial trade union cases with inescapable political dimensions arose. Several leading judges notoriously held views which were unsympathetic to the Liberal political programme. W. S. Robson, the Liberal Attorney-General newly installed as a law lord, pointed out that the ‘resolute bias of many of the Judges—there and elsewhere…will probably operate more than ever in cases that touch on labour, educational, constitutional and, for the future I might perhaps add, revenue questions’. Robson urged the need for more Liberals in the House of Lords.84


The prospect of judicial office attracted one or two ‘rats’,85 but old party allegiances weakened after Liverpool’s resignation in 1827, enabling Scarlett to join Canning’s administration with the consent of the Whig leaders.86 Thereafter there was no single party ascendancy to pose an acute dilemma to ambitious lawyers and some probably chose the party most likely to procure their advancement; others, such as A. L. Smith, were decidedly half-hearted in their politics. 87


The third motive remained in full force. Eldon appointed some personal friends (e.g. Alexander) but only a minority of puisnes were MPs or active supporters of government; the likes of Littledale ‘whose politics were those of a special pleader’,88 Burrough, Richardson, and Hullock were more typical.89After the 1832 Reform Act there were more practising barristers in the Commons and the new judges included a fair number of MPs.90 Political opponents were no longer proscribed, indeed Lyndhurst was criticized by Tory newspapers for choosing the Liberal William Erle, but such even-handedness remained uncommon. Law reformers regretted the intrusion of a political element but it seems to have been accepted as a fact of public life.91 However, though appointments such as (p.973) Hannen’s, a radical Liberal chosen by a Conservative Chancellor, and Holker’s, a Conservative former law officer made a lord justice by the Liberals, still caused surprise, the bipartisan co-operation of Cairns and Selborne over a long period gave the impression that political influences were a diminishing force.92


Then came Lord Halsbury. The myth that Halsbury cynically practised nepotism and ‘political’ appointments on a large scale has been modified by Heuston’s careful study,93 but the myth is itself revealing in suggesting that after the Third Reform Act public expectations were changing. In a culture of selection by merit, the choice of senior public servants on party grounds was felt to be anomalous. Some felt that after the Judicature Acts only the best men would do for the bench;94 indeed, since the senior bar and the judges were themselves prone to lament that there were barely enough top-class men to fill the bench, it seemed hardly justifiable to appoint second raters. Halsbury went wrong not in being influenced by party considerations but in choosing from outside the range of men the profession regarded as qualified.


Of course, as Heuston points out, Salisbury as Prime Minister was insistent that party claims must have their weight, but he wrote to Halsbury in 1897 that ‘the judicial salad requires both legal oil and political vinegar’, and though the Chancellor was noted for skilfully disarming criticism about a bad job by following with an unexceptionable one (and selecting a political opponent on occasion), the worst choices seem to have been Halsbury’s own.95


For most of the legal community it was acceptable to prefer on party grounds one man over another equally qualified, as with Anthony Cleasby over W. R. Grove.96 However, Gainsford Bruce was a barely acceptable choice in any case, but leaving the vacancy unfilled for a month to have his safe seat free for any minister defeated at the general election made his selection more discreditable.97


Heuston successfully vindicates Halsbury on some of his criticised appointments, such as Sutton and Kekewich. Also, it was not unreasonable to widen the field of choice by taking Edward Ridley from among the Official Referees, though Halsbury’s rooted antipathy to county court expansion led him to ignore that (p.974) more promising source, and Ridley turned out far worse than anyone might have expected.98


Even so, three appointments were simply unjustifiable: J. C.Lawrance, Charles Darling, and William Grantham. Lawrance and Grantham were QCs but none had a good reputation as a lawyer. It might be argued that there was still a place in the QBD for men unfitted for higher courts but able to deliver commonsense justice, especially on Assize and in criminal cases, and this Grantham and Lawrence did. But many others with solid reputations could done have that as well or better and to prefer men not unfairly described in Darling’s case as ‘ a party hack’; was to breach the tacit understanding about the limits of political influence.99


They were almost the last of their kind. Loreburn disliked anything that smacked of patronage but it was only when Asquith and Haldane, with their close political relationship, were in charge that it was agreed that the junior posts would be filled without reference to party needs or claims.100



The law officers


The history of the most senior judges is somewhat different, for here the freedom of the government came to be constrained by the claims of its own law officers, which have been painstakingly analysed by J. Llewellyn Edwards.101 These claims originated with that ‘indefatigable seeker after office’ Francis Bacon, who mendaciously claimed that ‘the places of rest after the extreme painful places wherein we [the law officers] serve have used to be either the Lord Chancellor’s place, or the Mastership of the Rolls, or the places of Chief Justices’.102 The most persuasive, and most frequently advanced claim, was the Attorney-General’s to the ‘cushion’ of the Common Pleas. John Scott successfully insisted upon it in 1799 and politicians and profession acknowledged that it would have fallen (rather fortuitously) to Frederick Thesiger in 1845 had Tindal CJ died a few days earlier; as it was, Thomas Wilde became the fortunate recipient, seemingly as of right.103 The claim was admitted by Lord John Russell in 1850, and though his Attorney-General, (p.975) Sir John Jervis, disclaimed any absolute entitlement, he agreed that it was always allowed in practice.104


Other claims for the Attorney-General were tenuous. Campbell’s brazen claim to the Rolls in 1834 was robustly rejected by Brougham and Melbourne and the ‘venerable tradition’ of a right to the Woolsack urged by Isaacs in 1912 had even less substance.105 Edwards does not discuss the claim to be Chief Baron, suggested for Garrow in 1817,106 and his discussion of the Chief Justice of the King’s Bench is brief and inconclusive.


However, in focusing strictly on rights rather than practice Edwards’ analysis is apt to mislead. The fact is that before the Judicature Acts at different times and on different advice Prime Ministers and Lord Chancellors gave varying degrees of acknowledgement to such pretensions. More important is that in practice all administrations felt obliged to make suitable provision for their law officers when they had had enough, and that if it was not possible to do so immediately their claim would be met when a suitable post became vacant.107 The nature of the provision would naturally vary with what was available, with the length and quality of services rendered and with rival claims. As a result, it was very seldom that a vacancy among the great offices occurred that was not subject to such claims and sometimes, particularly in the 1830s and 1890s, they created serious difficulties.


Attorney-Generals were very successful in obtaining the great offices. Between 1801 and 1880 only Abbott breaks the sequence of Chief Justices of the King’s Bench who were former Attorney-Generals, and then only because Sir Samuel Shepherd was ineligible through deafness. Others became chiefs of the Common Pleas or Exchequer, or Master of the Rolls, and when they did not fill the vacancies there was always a compelling political or personal reason. A few law officers went straight to the Woolsack.108 Of the remaining Attorney-Generals, Sir William Follett died in office and Sir John Karslake became blind. Garrow was made an Exchequer baron, a position Atherton and Horne (the latter unwisely) declined; Cairns and Rolt became lord justices of appeal in Chancery and Sir Robert(p.976) Collier, under extraordinary circumstances, a judge of the Privy Council.109 Only Wetherell received no firm offer of judicial preferment and he was at least considered. Among the Solicitor-Generals, Rolfe accepted an Exchequer barony but rose to the Woolsack and Dundas and Stuart-Wortley suffered from ill-health and withdrew from strenuous public offices;110 Sir W. P. Wood became a vice-chancellor and eventually Lord Chancellor.


Gladstone clearly felt a continuation of this uncertain situation was undesirable and took the opportunity afforded by the Judicature Act 1873 to secure a cabinet resolution that ‘all claims of either or both Law Officers to a succession as of right to any particular judicial office (claims which were never adequately established) have naturally dropped; so that their promotion would henceforth rest on qualification and service only, not on the possession of the post of Law Officer’.111 This was presumably approved by his law officers, Coleridge and Sir Henry James, though James persistently disclaimed all judicial ambitions.


In practice the resolution made little difference. Indeed in 1897, when Lord Salisbury found himself in acute difficulties over a successor to the Master of the Rolls, he declared that ‘there is no clearer statute in that unwritten law [of our party system] than the rule that party claims should always weigh very heavily in the disposal of the highest legal appointments’.112 His problem was one law officer, Sir Edward Clarke, whom neither Salisbury nor Halsbury thought fit for the Rolls, and another, the Attorney-General, Sir Richard Webster, who did not want it. If Webster were persuaded to take it, Clarke must succeed him as Attorney-General, giving him ‘a claim to higher vacancies which could not be passed over’. Though Clarke, happily unaware of these unflattering views, fortunately decided to remain in politics, the episode illustrated how an unlucky choice of law officer might have serious ongoing consequences.113


The Rolls was subsequently removed from the political equation, save in 1900 when a reluctant Webster accepted it at the second time of asking. However, all Lord Chief Justices came straight from Attorney-General save Russell, who had briefly been a law lord. The other Attorney-Generals (James apart) achieved various high positions—lord justices of appeal, law lord and, in Finlay’s case, Lord Chancellor, he having turned down offers to be President of the PDA and, probably, to be a law lord.114The only exception is Walton, who died in office. Several (p.977) Solicitor-Generals held high judicial office and Sir William Harcourt, whose ambition was to be Lord Chief Justice, became Home Secretary. Clarke rejected preferment, Sir Edward Carson rejected the Presidency of the PDA, the much loved Frank Lockwood died in office, and J. E. Gorst, rather mysteriously, seems to have become a victim of the split in the Tory ranks.115 Brett is a rare instance of a law officer who took a puisne judgeship. His ambitions were always judicial rather than political and, seeing that the direct route to the higher posts was blocked, he gambled successfully on ascending via the bench. That it was his own choice did not prevent his seeking a peerage in recognition of his ‘sacrifice’.116


In the result therefore, whatever their expectations, both law officers, but especially the Attorney-General, more often than not emerged with one of the great legal prizes—if they wanted one. A consequence was that the government’s choice was sometimes undesirably restricted and unsuitable and second rate men filled crucial posts: Coleridge and Alverstone as Lord Chief Justice, Best and Bovill at the Common Pleas, Scarlett and (on account of his age) Kelly at the Exchequer, and Plumer and Romilly at the Rolls. This was the price governments paid to have the men they wanted as law officers, and it was sometimes a heavy one.


During the nineteenth century the Attorney-General himself acquired, in that haphazard way characteristic of the unwritten constitution, a piece of judicial patronage, for his ‘devil’ (the junior counsel to the Treasury), gradually gained a prescriptive right to a common law judgeship. To Collier in 1819 it was only a a possibility and as late as 1886 Foulkes was still only expecting it to become customary—indeed a few years earlier the Solicitors Journal had remarked that ‘if the rule is to become inflexible…it is to be hoped that some care will be used in the choice of a successor to this office’.117 It did become inflexible. Halsbury felt obliged to make Henry Sutton a judge in 1905 and doubts about his suitability were soon confirmed.118 By then it seems also to have extended to his counterpart on the equity side119 and it did ensure that men such as Willes and Bowen, rather scholarly for the rough and tumble of the practising bar, were able to reach the (p.978) bench without breaching the conventions; but like the law officers’ ‘right’, a bad choice, like Webster’s of Sutton, would result in an inadequate judge.



In Office: Length of Service



Judges of the superior courts held office during good behaviour, with no reference in their patent to incapacity.120 In effect, therefore, they were judges for life, though in practice they could not remain if they became wholly incapable of performing their duties. No judicial scandals brought this tenure into question,121 and if a few judges had a dissipated private life it was kept under wraps; though the adulterous indulgences of Cockburn and Westbury were well known, they stayed out of the divorce court and avoided public scandal.122 None went bankrupt (though Kelly had to remain on the bench too long partly in order to recoup heavy financial losses) and though it was embarrassing that Coleridge was successfully sued by members of his own family and that Fletcher Moulton lost an action for breach of trust, neither was considered a ground for resignation.123


In 1799 the judges had become pensionable after 15 years’ service or in the case of permanent incapacity, a great improvement, since pensions theretofore had been granted at the discretion of the government of the day and might be a means of influencing a judge.124 In 1825, as part of the overhaul of judicial remuneration, pensions were raised to £3500, with the Chief Justice of the Common Pleas, Chief Baron, Master of the Rolls and Vice-Chancellor on £3750 and the Chief Justice of the King’s Bench on £4000. These were raised considerably from the original suggestions as an encouragement to judges to quit before their faculties deteriorated,125 and Duman suggests it did indeed have this effect, retirements rising from 35 per cent in the eighteenth century to 61 per cent. However, excluding Lord Chancellors (who usually went out with the ministry), almost half of the judges appointed between 1815 and 1875 died in office; only in the twentieth century did this become uncommon.126


(p.979) Not surprisingly, some judges expired, or retired through ill-health, within a very short period. All were middle aged or elderly men and some (e.g. Rolt and Robson) were already worn down by practice or government service.127 Eight of those appointed between 1850 and 1875 served less than five years, as did six of the later ones, including Sir Henry Mather Jackson, the most evanescent of them all, who died before he could even take his seat. A few retired before their time, Richardson after just five years and Robert Romer, said to have tired of Vaughan Williams’ tedious prolixity in the Court of Appeal.128


The median length of service rose slightly, from 13 years before 1875 to 16 years afterwards. At all times, and especially towards the end of the period, most judges were very experienced. Twenty-three pre-1875 judges and 18 post-1875 judges passed 20 years on the bench and they included many of the most distinguished or well known: Blackburn (28), Hannen (25), Brett (29), Lindley (30), J. F. Pollock (22), Bramwell (24), Parke (27), Cockburn (24), and J. D. Coleridge (20) in the earlier group; Atkin (31), Macnaghten (26), Sumner (20), and Scrutton (24) in the later.129 The durability and reluctance to retire of so many mid-Victorian judges may be of some significance in the development of the common law. Lord Chancellors fall into a separate category, for their term of office was often intermittent and their judicial service prolonged by sitting in the House of Lords. After the everlasting Eldon (25 years as Chancellor), Cranworth (26 years in various posts), Lyndhurst (19), Hatherley (19), and Halsbury (17 years as Chancellor, more than 30 between his first and last judgments), each had a long innings.


Retirement became a sensitive matter once the judiciary fell out of step with other public servants. Though politicians frequently stayed on the public stage to an advanced age, even Prime Ministers were becoming younger and civil servants were, in general, made to retire at 65.130 Attempts to impose a similar rule on court staff were stoutly resisted by the judges, no doubt in part because of the fear that it would be their turn next.


Despite occasional earlier suggestions, as late as 1895 a demand in the Saturday Review for judges to retire at 65 was called a ‘strange proposal’ by the Solicitors Journal.131 The Review was characteristically outspoken in naming Esher, Hawkins, Day, and Pollock as immediate candidates for the rest home and mentioning, (p.980) without naming, a younger judge who was said to be senile. The question would not go away, and in 1913 a royal commission came out for retirement at 72 with a power for the Lord Chancellor to postpone it in individual cases.132


The recommendation was not implemented but undoubtedly had an effect on the age at which judges were normally chosen.133 Opponents advanced three arguments. First, that judges mature on the bench and are at their best between 65 and 80 (or 75 at any rate), so a uniform retiring age would deprive the country of some of its best judges; they were fortunate in being able to instance Halsbury, a miracle of physical and intellectual vigour, though of course no longer a trial judge, where alertness was especially required. Such assertions are difficult to test. Sir Walter Phillimore argued that judges did not need ‘elan and go’ like other public servants, but omitted to mention that other, younger public servants, did not claim to need short hours and long vacations to recuperate.


The second argument was that potential judges might be discouraged if they had only a limited period on the bench, especially with the real value of salaries falling, but that was an argument for more generous pensions. The third argument was that a retiring age was in practice unnecessary because when the public interest required a judge’s departure he either resigned unprompted or (rarely) was tactfully persuaded. Alverstone mentioned an instance in which he (rather than the Lord Chancellor) had induced the retirement of a judge who, although mentally alert, looked ‘decrepit’ and so presented an unacceptable image to a public which could not distinguish ‘between apparent decrepitude and inability’. He maintained, however, that there had been only three cases within his knowledge where the public might say a judge was ‘not up to it’, and in the two which occurred while he was Lord Chief Justice he had persuaded the judge to retire.134 Furthermore, as the opponents of compulsory retirement pointed out, an age limit would not have helped in the most notorious case of judicial incapacity, that of J. F. Stephen, who was barely into his sixties when the sensational trial of Florence Maybrick exposed his failings to the full glare of publicity. Stephen’s resignation was procured by a ‘wonderfully tactful’ intervention from Halsbury, but only after parliamentary questions and a press campaign.135 However, rather than furnishing an argument against compulsory retirement ages, Stephen’s case exposed the want of any explicit incapacity ground for dismissal. Such a clause had been urged by Gladstone during discussions on Selborne’s Judicature Bill but was not included.136


(p.981) There were, however, several more mundane cases where peer pressure was either not applied or did not work very well. In 1825 Baron Wood’s state had become pitiful, ‘he having at length lost one eye and the use of both ears’.137 Later on Cottenham, Kelly, Blackburn, Esher, and Grantham all remained on the bench too long.138 Some timed retirement to suit their own political associates; Pollock CB clung on until the Tories came in in 1866 for example. Others sought to keep out an unwanted successor (as Denman LCJ sought vainly to do with Campbell in 1850) or to secure the promotion of a friend, as Erle wanted to do for Roundell Palmer.139 Some clung on for a full pension, as Coleridge did in the 1890s. Bayley simply enjoyed being a judge, while Wightman’s wife did not want him at home.140 There is no knowing how often a Chancellor or the chief of a court brought pressure on a lingering colleague. It happened with Honyman, but that was because Huddleston, who wanted the place for himself, planted questions in the House about his fitness. On the other hand it seems that Rigby for one was not asked to go when Halsbury believed he should.141


Elderly men were prone to deafness, real life counterparts to Dickens’ Mr Justice Stareleigh. Bacon and Maule, Patteson and John Williams were all afflicted,142 but the most often mentioned is Ventris Field, whose deafness contributed to his notorious ill-temper. Field did not recognize any need to retire and was extremely rude to Baron Pollock, who was given the unwelcome task of suggesting that he should.143 The other common condition was sleepiness, which perhaps became harder to resist in the quieter courtrooms of the Strand than in the hubbub of Westminster Hall. For at least one important trial Coleridge LCJ had to have his wife beside him to keep him awake,144 but the most notorious offender was Lewis Cave, whose post-prandial torpor became so blatant that he (p.982) was carefully kept off jury trials.145 The bar could regard such human weaknesses with amusement or at worst resignation, though few were perhaps so cynical as Lord Westbury who, when Erle protested his unfitness for duty on the Judicial Committee because he was old, deaf and stupid, retorted, ‘Why, Chelmsford and I are old, Napier is very deaf and Colville is stupid, but we four make an excellent tribunal’.146 As well as slowing down trials, these men helped create an image of judges as old, deaf, and dozy.


So the prospect of a pension, uncoupled from an explicit requirement of retirement through infirmity or age, was a mixed blessing. It kept a few admirable judges on the bench for longer and avoided controversies over the definition of judicial incapacity. On the other hand it encouraged a tendency for judges who were ailing like Butt, or simply worn out, like Neville, to stay too long.147 A further drawback was that it hindered advance planning. The occurrence of vacancies could not be predicted and therefore when a ministry wanted to accommodate its law officers or other prominent lawyers it was tempted to offer inducements, perhaps coupled with hints of parliamentary questions about fitness, to create a vacancy. The most blatant case of this sort occurred in 1830, when Wellington’s administration needed a place for the Solicitor-General, Sir Nicholas Tindal. They sounded out the Chief Baron (Alexander), the Master of the Rolls (Leach) and the Chief Justice of the Common Pleas (Best), eventually closing with Best, who extracted a peerage and a pension for disability based on a rather exaggerated diagnosis of the severity of his gout.148



Promotions


Making the great law offices berths for politicians and law officers severely reduced the likelihood that a man who accepted a puisne judgeship would win promotion. Some politicians approved of this since it would dissuade judges from currying favour with the government of the day and in the debates on judges’ salaries in 1825 some claimed to detect a regular practice of promotions, which Brougham hysterically denounced as ‘a system so foul, that [it] mocked all public decency’.149 In fact there was no policy, merely a series of accidents, and it was rather curious of Whig lawyers to argue a preference for taking the highest judges straight from ministerial positions. Still, promotion did not look like a promising route and law (p.983) officers and ambitious KCs were seldom willing to take a puisne post without a clear expectation such as had been given to Gibbs and Richards.


It was different in Chancery because the creation of a Vice-Chancellor in 1813 created a distinct hierarchy. The first holder, Sir Thomas Plumer, was promoted to the Rolls in 1817 despite a poor reputation, perhaps to facilitate the appointment of the Regent’s protege John Leach. Leach in turn become Master of the Rolls, though not on the next vacancy, and his own successor Sir Anthony Hart was sent to Ireland as Lord Chancellor. Sir Lancelot Shadwell, the next Vice-Chancellor, was not seriously considered for the Rolls in the highly charged political circumstances surrounding the next vacancy, in 1836,150 but the creation of two more vice-chancellors in 1841 and then the two lord justices of appeal in Chancery in 1852 lengthened the ladder.


With Chancery leaders practising exclusively in one judge’s court, it was difficult to overlook the claims of vice-chancellors to promotion, and in fact six of the 14 became lord justices of appeal in Chancery, as Sir James Parker would surely have done had he lived. Of the other lord justices, Cairns and Rolt were law officers, but outstanding equity lawyers too; Sir George Mellish was a deliberate common law appointment and that of C. J. Selwyn was coolly received at the bar.151 Nevertheless, even on a Chancery vacancy it was Gladstone’s view that they should first see if anyone who had held a great law office wanted it (he called this ‘the Lyndhurst principle’) before considering a promotion.152


The Judicature Acts brought a hierarchy to all three divisions of the High Court.153 Lords of appeal in ordinary and lord justices of appeal might either be direct appointments or promotions, and it quickly became apparent that promotion would be more common. Initially several judges were elevated to the Court of Appeal, while Blackburn alone went straight to the Lords from the Queen’s Bench. Thereafter only Macnaghten (1887), Russell (1894), and Robson (1910) went to the Lords direct from the English bar, with a further five direct to the Court of Appeal.


As against these direct appointments, there were 31 promotions from the High Court, so the prospects of promotion were distinctly good. Of 20 Chancery judges 12 went up (Pearson and Byrne died too soon to be considered) and prospects of advancement were even more favourable in the cinderella division, the PDA, where three out of four junior judges ended as President.


(p.984) Because the Queen’s Bench was bigger the chances were less good, but even so, 16 out of 45 were promoted and Bigham was rather surprisingly made President of the PDA. Only five lord justices ever reached the Lords, along with Parker, raised direct from the Chancery Division and Hannen, the President of the PDA.


It was no longer suggested that the prospect of promotion had sinister implications and it might have facilitated the appointment to the High Court of gifted men who were temperamentally unsuited for the role of a trial judge, but there is no evidence for this. There was no fast track to the Court of Appeal, but it was not Buggins’ turn either.154



Transfers between courts


In theory, the common law courts had roughly equal standing and a judge was not expected (and could not be required) to move between them.155 However, by the end of the 1820s the disparity in reputation between the overburdened King’s Bench and the others was such that the Common Law Commissioners recommended some excellent appointments to the latter to restore suitors’ confidence.156 This implicitly admitted what the Law Magazine asserted, that great care had been taken in the selection of King’s Bench judges but much less with Common Pleas, while the Exchequer was ‘not infrequently a resting place for age and infirmity, or a reward for political subserviency’.157Eldon did not consider either Burrough or Garrow up to King’s Bench standard and the Exchequer had to receive Vaughan, and Copley’s favourite, William Bolland.


Accordingly, the government soon manouevred to strengthen the Exchequer. It was given Bayley in 1830, who presumably wanted an easier life in his old age, and Alderson and Patteson were appointed to the Common Pleas and King’s Bench respectively on their undertaking to remove if required. In 1834 Alderson did go into the Exchequer, along with the highly regarded James Parke from King’s Bench, Vaughan moving to the Common Pleas.158 Not all commentators approved of this game of ‘Puss in the Corner’, feeling that different capacities of judges should not be openly signalled, but it did help.159There is a handful of later transfers,160 but only in the making of the Judicature Acts was another significant attempt made to re-balance the courts, and this time the chiefs, particularly (p.985)Coleridge, seem to have been the prime movers. High Court judges, unlike their predecessors, might be moved between divisions without their consent, but in fact after the transfer of Ford North to the Chancery Division in 1883 following his unsuccessful placing in the QBD by Selborne, there were no further simple translations of this sort.161



Salaries


Until 1825 the incomes of the judges were made up of a salary, augmented by the income from certain suitors’ fees and, in the case of the great offices, by the exploitation of patronage. In 1809 salaries stood thus: puisne judges, the Master of the Rolls and the Chief Baron £4000 (but made up to £5000 in 1813); the Chief Justice of the Common Pleas £3500; the Chief Justice of the King’s Bench £4000; the Lord Chancellor £5000.162 The Chancellor and the chiefs in particular actually had incomes far greater than this, and when Liverpool’s ministry finally tackled the thorny question of fees and patronage in 1825, the proposed salaries had to reflect that. Puisnes were now to have £6000; the Master of the Rolls and Chief Baron £7000; the Chief Justice of the Common Pleas £8000; and the Chief Justice of the King’s Bench £10,000. The Vice-Chancellor’s salary of £5000 would be raised to £6000. In Parliament argument centred on the Chief Justice of the King’s Bench’s salary, and the desirable differential between his salary and those of the Chief Justice of the Common Pleas and his own puisnes, and on objections that the puisnes were being treated too generously.163


The government agreed to reduce the puisnes to £5500, which still put them among the highest salaried individuals in the country and well ahead of all but the very top earners at the bar.164 Few other public officials, including cabinet ministers, could match these earnings, especially when supported by generous pensions,165 and they soon came under fire. From November 1828 new puisnes were required to agree to accept only £5000.166 Soon afterwards, when Denman became Chief Justice of the King’s Bench, he put his earlier declaration that the (p.986) judges were overpaid into practice by voluntarily taking only £8000.167 Finally, in 1832, the Lord Chancellor was dealt with. Eldon had been making around £15,000 and his successors were now put on £10,000 with a £4000 addition as deputy speaker of the House of the Lords.168 Further attacks on judicial salaries in the 1830s had no effect,169 but the two extra vice-chancellors were paid only £5000 as against the Vice-Chancellor of England’s £6000, which was also what the lord justices of appeals in Chancery received in 1852.170 With Denman’s retirement his successor Campbell was more or less compelled to accept the ‘voluntary’ reduction, but insisted that it be made statutory. Jervis, on becoming Chief Justice of the Common Pleas in the same year, had accepted the post at a reduced salary of £7000 and both reductions were made permanent.171


After a period of calm there was another battle at the time of the Judicature Acts. Gladstone had always considered the puisne judges overpaid in comparison with the higher civil service, but he could not persuade his cabinet to support a reduction to £4000, though he did manage to reduce the pensions.172


In the event, the lords of appeal in ordinary were to have £6000, with both puisnes and lord justices left on £5000 despite Cairns’ urgent advocacy on behalf of the latter.173 The Master of the Rolls was on £6000, the Lord Chief Justice (after the abolition of the other chiefs) £8000 and the President of the PDA £5000. The lack of adverse comment in the legal press and the seeming absence of any lobbying by the Lord Chancellor for an increase suggest that these salaries were regarded as sufficient to attract and retain suitable candidates for the bench. However, they had begun to seem less attractive by 1914 as bar earnings for the brightest stars climbed to unheard of heights and tax began to take its toll.174



The Judge in Court


There is a wealth of anecdotal and biographical information on nineteenth-century judges, but it must be used with care. Some sources are untrustworthy—Campbell’s (p.987) Lives and Grant’s Bar and Bench are familiar examples—and many biographies are uncritical. Since most of the writing has been done by members of the bar, the bar’s perspective on a judge is what usually emerges so that a judge who was habitually unpleasant to counsel seldom gets a good press. And of course views are sometimes divergent. Lord Alverstone is a case in point. Few would hold his judgments in high regard, but while Dickens and Abinger regarded him as a good trial judge, Cancellor said he seemed bored in criminal trials; to Whiteley he was pleasant, but Morris called him ‘a pig’.175 Where the judge has featured in only one or two memoirs they may of course be wayward or untypical. 176


Judges were prominent public characters, whose utterances were frequently in the newspapers. The unabashed exhibition of individual personality traits on the bench was regarded as normal and the bar generally accommodated itself to the foibles of the bench except when pressed to extremes. They all knew how Cockburn had to string out commercial cases overnight to allow him to look up the law and how he ensured that the most sensational cases came before him;177 how Willes sought for a chance to display his prodigious legal learning from the Year Books downwards and how Darling was desperate to produce a not always spontaneous witticism; how the aged Kelly was obsessed with dates and Westbury and Esher loved to pounce on solecisms in the classical languages.178 They knew that some judges were inclined to affirm (Lyndhurst) and others to reverse (Cottenham);179 that some were plaintiffs’ judges, others defendants’.180 Gradually this unabashed individualism become less pronounced, perhaps because the judges collectively became less confident about their role. ‘Characters’ were still appointed to the bench—men like Scrutton, McCardie, and Swift—but they were no longer typical; even Avory, the best known of the judges of the 1920s, was self-effacing and remote.181


(p.988) It is also significant that while the oral tradition of the bar celebrated the more exuberant characters, the judge who was most often mentioned as epitomizing the judicial ideal was the imperturbable Sir William Grant MR.182 The nearest later equivalent was perhaps Sir James Hannen, though Hannen made most of his reputation in the divorce court, where an especially decorous atmosphere was expected.183


Grant and Hannen are elusive personalities, almost devoid of minor eccentricities when on the bench, and after all not all foibles were harmless. Russell’s intolerance of facial hair on counsel, and Bacon’s of moustaches may not have impaired their possessors’ chance of a fair hearing,184 but other manifestations of dominion over ‘my court’ did put justice at risk.185 Thus counsel and witnesses might find themselves chilled in the courts of Parke or Huddleston, or stifled in those of Wills or Hawkins. Hawkins and Parke were also notorious for protracting sittings beyond the point where anyone but themselves could concentrate.186


In Hawkins’ case both traits were manifestations of a generally domineering attitude and though he pressed it to extremes, some claimed that there had been a deterioration in judicial manners since the days of courtly judges like Graham and Dallas,187 and the impression may be more significant than the reality. Although Eldon’s disarming urbanity set the tone for Chancery, Leach was so unpleasant that he was formally remonstrated with by leaders on behalf of the bar.188 Conversely, while even the combative Jack Campbell found ‘the four ruffians of the King’s Bench’ headed by Ellenborough daunting, and ‘Vinegar’ Gibbs deserved his nickname,189 in the 1830s and 1840s Denman in the Queen’s Bench and Lyndhurst in Chancery were models of polished courtesy.


It may be, however, that a clutch of ‘strong’ judges in the mid-century made an impression beyond their numbers. Certainly Alderson, James, Bramwell, Blackburn, Cottenham, and Jessel fell into that category, and their vigorous, masculine style was perpetuated after the Judicature Acts by men like Brett and (p.989) Stephen.190 At worst, however, it degenerated into sheer unpleasantness through the likes of Ridley, Hawkins, Kay, and Field.191 Some carried it into the new century. Scrutton had to be bearded by the bar like Leach before him, but R. A. Wright was described as the last of the breed and when A. L. Smith took over Esher’s division of the Court of Appeal there was a markedly less combative atmosphere there.192 In general judges do seem to have become milder and less dictatorial in the new century; perhaps, like Page Wood earlier, they did not wish to inflict on juniors the treatment they had received themselves.193


Among the virtues possessed by Grant and Hannen was that they did not noticeably allow personal views to come into play. Of course, as Scrutton acknowledged in the 1920s all judges have such views, sometimes with a political dimension;194 it was said, for example, that the early motorists found the judiciary generally hostile.195 But some judges were well known for particular prejudices; Field was reckoned to be biased against railway companies, Gorell Barnes to favour wives in divorce cases, Robert Phillimore could not restrain his high church sympathies in ecclesiastical cases, W. G. Phillimore, Wills, and Day were thought to be quite unbalanced when sexual offences were being tried before them, and J. C. Lawrance always favoured the Revenue.196 It was notoriously difficult to persuade Esher’s Court of Appeal to question a jury verdict and Halsbury was equally reluctant—an especially serious hurdle at appellate level.197


Then again, there were judges who, unlike Cairns, could not be said to have ‘heard well’.198 Few things upset the bar more than a judge who frequently interrupted them in their speeches, and Lord Coleridge suggested that it had contrib-uted to the decay in true forensic eloquence.199 It is unlikely, as was alleged, that such interruptions were rare in Grant’s day, for though it may have been unusual for puisnes sitting in banc to intervene, Ellenborough and Gibbs certainly had no compunction about doing so.200 The impression is, however, that it became (p.990) commoner. Leach brought it into Chancery 201 and several common law judges were notorious for it, especially in the Exchequer. It was not confined to poor judges like Bovill, for among those named are Mellish and Blackburn, though Cairns coldly and decisively checked the latter when he attempted it in the Lords.202 It may have been in part a response to lengthier speeches from counsel, for Langdale MR, who sought to emulate Grant’s perfect stillness, was criticized for allowing cases to be drawn out and complained of the interminable ramblings of counsel.203 However, that was certainly not the motive of the most extreme example, Sir George Jessel. Jessel developed a style which substituted a rapid fire dialogue with counsel for their conventional, and often ponderous speeches and such was the force of his personality that he was able to impose it without protest, though it could only work well in a court like the Rolls where the same few leaders appeared in case after case and were familiar with it. Even then it worked notably less well when Chitty attempted it.204


Once it had become widespread, the habit of interruption proved difficult to eradicate even for Halsbury in the Lords.205 At least some of those who routinely hindered attempts to put forth an argument also failed to emulate Grant in another respect—they made up their mind early on and were hard to sway from their first opinion. Among the alleged culprits were Ellenborough, Erle, Robert Lush, Martin, Jelf, and William James.206 Others angered counsel by ostentatious inattention. Eldon had been discreet in writing his letters on the bench but Brougham’s more open impoliteness led to a famous row with Sugden.207 It is revealing of the disregard for appearances that some judges had that men like Day and Bailhache could manifest open boredom in the sort of cases they disliked.208


Much worse, however, were judges who either favoured a particular counsel or the reverse. Twice at least this led to angry scenes in the courtroom; Adolphus, from the rough and tumble Old Bailey, gave voice to what King’s (p.991) Bench practitioners all believed, that Abbott was too much under the influence of Scarlett,209 while 20 years later, and perhaps with less cause, Frederick Thesiger accused Chief Baron Pollock of being biased in favour of his son-in-law Samuel Martin.210 Gibbs and Jervis were also said to favour particular counsel, and it is unsurprising to read that Hawkins mistreated A. J. Cock.211 However, it was most likely to occur in Chancery and in the civilian courts, sometimes due not so much to favouritism as inability to resist superior intellectual power. Shadwell was notoriously under the sway of a succession of domineering leaders, beginning with Sugden and climaxing with Bethell, who scarcely bothered to conceal a state of affairs which, Selborne wrote ‘would be inconceivable to those who did not witness it’.212 At the Rolls it was said that Langdale more or less adopted Pemberton Leigh’s arguments and that the latter practically wrote the judgments,213 but even more unsatisfactory was Malins’ court; not only could he be readily provoked into a scene but he was openly bullied by Glasse.214 Knight Bruce, who suffered from contending against favoured rivals at the Rolls, then had the misfortune as a vice-chancellor to incur the animosity first of Lord Chancellor Cottenham, who delighted in reversing his decrees, and then of Westbury, who would not even sit with him on appeals.215


Such internal animosities were, for the most part, kept behind the curtain, but it was notorious that Eldon and Leach were mutually hostile; that Westbury and Maule both hated Campbell; that Jessel disliked Selborne; and Cockburn disliked Willes. Brett and Jessel were openly at odds; practically the whole common law bench could not abide Hawkins and Fletcher Moulton’s appeal court was perpetually riven by animosities.216



(p.992) 2. County Court Judges



Appointment: Numbers, Qualifications, and Selection



The County Courts Act 1846 authorized the appointment of ‘as many fit persons as are needed’, and the government promptly made 60 new judges.217 This unprecedented harvest of patronage was in fact drastically reduced by Cottenham’s decision to employ as many of the judges of the liquidated local courts as were appointable, and barely one-third were selected from outside this pool. Experience suggested to many that the number of judges was excessive and their distribution misaligned with need, but despite strong recommendations by successive inquiries in the 1870s for a major reduction and redistribution, only modest changes were made and in 1914 there were still 55 judges.218


Despite vigorous lobbying by attorneys, the new judgeships were confined to barristers of seven years’ standing, a less stringent qualification than the 10 years recommended by the Common Law Commissioners. 219


The power to appoint judges was vested in the Lord Chancellor, but both temporary and permanent exceptions were inserted into the Act. The temporary ones were, first, that the judges of four local courts, the county clerk of Middlesex, and the steward of the manor of Sheffield were translated to the new courts, and secondly, that the lords of eight manors were allowed to fill the next vacancy in the county court which superseded their manorial court; the last of these judges, Thomas Ellison, sitting in Sheffield on the Duke of Norfolk’s nomination, died in 1896.220 The permanent exception gave the Chancellor of the Duchy the patronage of districts exclusively within the Duchy of Lancaster. One of his early choices, William Ramshay in Liverpool, turned out disastrously and there was some criticism of later appointments, but although local men tended to be favoured, the appointments generally seem no worse than the Lord Chancellors’.221



Patronage and politics


Tradition has it that Cottenham packed the bench with good Whigs, and there are certainly obvious examples in David Leahy, a prominent journalist, and (p.993) W. M. Praed, son of a Whig politician.222 Party loyalties continued to count. Joseph Pollock, for instance, was described as an O’Connellite and Liberal, but he was also a well-regarded judge of the Salford hundred court and criticism centred rather on appointments like T. F. Falconer, a man with no real practice who had just cadged a colonial secretaryship which he renounced upon procuring a judgeship, no doubt through the same agency, his brother in law J. A. Roebuck.223


The only known instances of actual nepotism belong to Halsbury, who chose his brother-in-law Robert Woodfall and another of his wife’s relations, Robert Melville. Woodfall was well qualified but Melville was a flagrant job; Halsbury also put his brother J. W. Giffard onto the County Court Rule Committee at the first opportunity.224


There were too many Falconers, Bayleys, and Caillards,225 men ‘utterly unknown to the public, scarcely known even by name to the Profession’.226 With the exceptions of St. Leonards’ two appointees, all Lord Chancellors from Cottenham down to Halsbury chose some men on grounds which the legal press either could not understand or, if they did, condemned. Some critics were jealously defending the interests of the practising bar, but others lamented choices which would undermine the case for widening county court jurisdiction and also regretted the retention of the former judges of courts of requests, though as a group they seem no more prone to error or misbehaviour than others.227 The attacks became more frequent and outspoken from about 1870 onwards, culminating in an exasperated leader in the Solicitors Journal:



having come to the conclusion that of late the preponderance of appointments of county court judges is so greatly on the side of those which, like the present, it is impossible to approve, we think it best to give up the attempt to estimate the merits of such appointments, and to reserve any comments until they come to be made in accordance with some standard which the profession can recognise or at least understand.228

One of the most controversial appointments, which Hatherley realized would arouse protest, was Edmond Beales in 1870. A radical MP, he had been deprived of a revising barristership by the Conservatives for his part in the Hyde Park (p.994) rally-turned-riot in 1866 and the judgeship was openly intended as a rather generous recompense. It was not only Conservatives who regarded this as particularly irresponsible, for it occurred while the Judicature Commissioners were wrestling with the problem of the extent of local jurisdiction.229


Nor was Beales an isolated case. Hatherley, who notoriously did not seek advice on judicial appointments, had already incurred criticism by choosing Gordon Whitbread, his own private secretary, and among his ‘peculiar’ appointments that of J. F. Collier caused astonishment since he had only a modest western circuit practice. Homersham Cox and J. T. Abdy, while acknowledged to raise the intellectual tone of the bench, were deprecated as not ‘practical men’.230


Hatherley’s successors continued on occasion to oblige Prime Ministers (as Halsbury did with A. G. Marten) and cabinet colleagues (as Cairns did with Horatio Lloyd).231 They rewarded men for public service (T. J. Bradshaw and R. A. Fisher, successive secretaries to the Judicature Commission) or for serving them (W. L. Selfe, whose appointment provoked a parliamentary question), or to economize on pensions (Vernon Lushington, James Stephen).232 Not all of these turned out badly, nor for that matter were all those praised by the press a success (Crompton Hutton is an example233) but they perpetuated the image of the county court bench as not being the repository of sagacity and proven ability as measured by the profession’s own, narrow, test. Its reputation was also damaged by stories, whether true or not, like Cairns’ selection of one judge when his secretary misunderstood Sir John Karslake’s unflattering verdict on the man.234


As with the High Court, the new century saw a change. Loreburn’s choices were admitted by an unenthusiastic critic to be ‘in the main…middle aged men with a good circuit, local or commercial court practice, and not mere party hacks’,235 and though party political considerations were not eliminated from the selection process, a solid practice background had become almost a prerequisite.236 Balfour Browne might refer contemptuously to the county court bench as a ‘respectable shelf’, but at least the shelf had become respectable.237


(p.995) Politics of a different kind were intruded into appointments to the Welsh districts. The influence of the Welsh language lobby within the Liberal party enabled them to extort a promise that certain districts would become the preserve of Welsh-speaking judges. This created a rather pernicious closed shop, for so few Welsh speakers had even halfway respectable practices that some men well below the general standard obtained judgeships; nevertheless it became too firmly entrenched to be challenged.238



Age at appointment


In 1878 Henry Nicol testified that he felt that as their duties placed a premium rather on the vigour of (comparative) youth than the accumulated wisdom of age, these judges should usually be appointed at under 45, and certainly by 50. This view, endorsed by Haldane in 1913, had much to commend it, for their extensive travelling in most districts, year-round work, and anything but tranquil working conditions imposed strains that were more physical than intellectual.239


As it happened the original cadre of judges was, on the whole, a youthful one. J. W. Wing was just 34 and at least seven others were in their 30s, while probably only four were over 60, including two of the more distinguished of Cottenham’s ‘free’ choices, James Manning and J. H. Koe.240 As overcrowding at the bar made rapid progress harder, young judges became rarer, but not unknown; Joseph Pollock and D. Brynmor Jones were 33 and Edward Parry, probably the youngest of all, only 31, though he was chosen by the Chancellor of the Duchy.241 Though doubts were voiced as to the wisdom of pitching the 37-year-old McKenzie Chalmers straight into the busy Birmingham court, the youthful judges were generally welcomed unless, like Caillard, there were other objections.242


Men in their 60s were harder to justify, though some were excellent in all other respects, like the 65-year-old C. E. Petersdorff and William Willis (62).243 Halsbury chose some even older men, and what made William Paterson a suitable choice at 71 probably only Halsbury knew. Impervious to criticism of another such, James Mackonochie, he promptly appointed a former circuit colleague, Aeneas McIntyre, good in his day, but at 68 two years older than Mackonochie.244


(p.996)

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