VI Old Judges and Some of Their Sayings
When I was a little boy I drew most of my notions of life and mankind from the picture-books for my use and instruction. I thought that Kings and Queens wore their crowns and sceptres all day long, and took them to bed with them, for I had thus seen them in the pictures in the books. One engraving, I remember, I saw of a severe-looking gentleman, who had thrown a gray doormat over his head, and sat behind a little desk everlastingly writing away with an enormous quill pen. It was this quill pen which specially riveted my attention. I was always given a steel pen in my writing-lessons. Why not a quill? I asked my mother who the man was, and was told he was a judge, and that what I took for a door-mat was a wig which he wore to look dignified, and the great weight of which was, moreover, intended to prevent his great legal learning from evaporating through the pores of his skull, which was bald, but compelled it to come out through his mouth only.
He used a quill pen to take notes of what was said by the parties contending before him, because that, being a natural production, could not possibly tell lies, whereas a steel pen, as an artificial contrivance, could not be depended on for veracity; wherefore, in all law proceedings, even at the lowest police court, quill pens only could be used, for the law on morality and public policy grounds strongly objects to lies; it is itself so truthful! Of course, I believed all my mother told me; children are so easy of belief if you only look serious when you tell them crammers. But I know better now, and crowns no longer represent to me sovereignty, nor wigs wisdom. Of another delusion, too, I have been cured. When I was a young man I was told that English law was the perfection of human wisdom. I believed this then, for I was only a bigger child without experience. But when I arrived at years of discretion—that is, when I began to observe and reflect—I could come to no other conclusion than that the axiom of the law’s wisdom was a delusion. There are many ways of proving this, but one argument presents itself, which renders all further proofs unnecessary. Can a code which comprises a number of laws, the interpretation of whose import is liable to be declared by one judge to mean ‘Yes,’ whilst another as positively maintains it means ‘No,’ be called the perfection of human wisdom? The ever-growing frequency of appeals alone is sufficient to show that the existing laws are ambiguous in expression, and lend themselves to the idiosyncrasies of every individual judge, which is very far from perfection. Laws should be as precise in their definitions as mathematical formulæ. To substantiate my reasoning, let me quote an actual case: Some twelve or thirteen years ago, the captain of a cargo steamer belonging to a London firm, while loading maize at Odessa, signed bills of lading which were ante-dated. Between the false date and the real one, a few days after, of loading, there was a considerable fall in the price of maize, and the consignees, who were the sufferers by it, brought an action against the owners of the steamer, they—the consignees—having discovered the ante-dating, and recovered £437 damages, which the shipowners paid. On the captain’s return to England, he made a claim of £190 for wages, which claim was admitted by the firm, but they set up a counter-claim for the damages they had had to pay to the consignees, through the captain’s negligence and breach of duty in signing the ante-dated bills. The case went to trial before Mr. Justice Field and a jury, and was decided in the captain’s favour, both as to his wages and the counter-claim. The owners appealed, and the Divisional Court, consisting of Grove, Denman, and Wills, ordered the judgment to be set aside, and a new trial granted. The Appeal Court ordered the original judgment in favour of the captain to be restored. The owners then took the cause into the House of Lords, where Lords Watson, Blackburn, and Fitzgerald restored the order of the Divisional Court in favour of the owners, with all the costs they had incurred. Now, here was a case of breach of duty as plain as it could be, yet it took four trials, the costs amounting to about £4,000, to decide the question. This is but one of a hundred similar cases which might be cited. With what wisdom can laws be framed which can give rise to so many judicial contradictory decisions? And the fault of this lies not with the judges, but with the legislators, whose only wisdom seems to consist in surrounding plain matter-of-fact with a network of sophistry, chicanery, and hair-splitting subtleties—a system which is constantly regretted by the judges themselves, who are ever ready to warn the public against indulgence in litigation, for English judges, as a rule, are straightforward, honourable men, who are inclined to take common-sense and impartial views, except when a political or theological bias gives a twist to their judgment. Nor can it be left out of our consideration that men educated in the legal schools of the Inns of Court, and by teachers strongly impressed with the dignity and importance of their pursuit, should adhere to it with cast-iron rigidity, thus opposing, as much as possible, the introduction of new, and in their estimation, revolutionary and destructive opinions. It is due to this adherence to, and maintenance of, the principles of a barbarous and an arbitrary regime that the judges still possess the tremendous power of committing for contempt of court any person who may make a remark displeasing to them, however innocently that remark may have been made. Years ago I defended an action brought against me by a tradesman for certain goods he alleged he had supplied me with. The action was tried in a County Court. The plaintiff made his statement, which introduced several particulars which were as new to me as they were false. But my solicitor whom I had brought with me could not know they were so. I turned towards the judge, and stated that I could prove in two minutes that there was not a word of truth in the plaintiff’s statements. But the judge turned quite savagely towards me, saying:
‘You must not speak to me. You have your solicitor here.’
‘But,’ I replied, ‘my solicitor cannot know that these assertions are false!’
‘Be silent!’ thundered the judge. ‘If you say another word I shall commit you for contempt.’
Of course I said no more, but, like the parrot, thought a lot. I knew that a judge, a mere County Court judge, who passes his life amidst the most sordid and depressing scenes of wretchedness, had the power of sending me to prison, and to keep me there till I made the most abject apology for a speech which was never intended to be offensive. Persons have been kept in prison for twenty years by the mere order of a judge, who was plaintiff, jury, and judge in every such case. This is scarcely in accordance with our ideas of justice. But this relic of a barbarous age will be abolished in time, as the Courts of Doctors’ Commons, or the Palace Court, where a number of sleepy old gentlemen
‘Were sittin’ at their ease,
A-sendin’ of their writs about,
And drorin’ in their fees,’
have been abolished. And there is no doubt that our modern judges are superior in talent, adroitness, and acuteness to those of former days. They are men of high-breeding, combining in their characteristics those of the courtier and of the lawyer. Judges of the past were different; in fact, some of the old judges were noted for their eccentricities. Lord Thurlow was one of them. When he was still an aspirant for forensic fame, he was one evening at Nando’s Coffee-house—now a hairdresser’s shop, opposite Chancery Lane, falsely called the palace of Henry VIII. and Cardinal Wolsey. Arguing keenly about a celebrated case then before the courts, he was heard by some lawyers, who were so pleased with his handling of the matter that next day they appointed him junior counsel, and the cause won him a silk gown. This was in 1754. It is asserted that he was singularly ugly, and that when his portrait was shown to Lavater, the physiognomist said: ‘Whether that man is on earth or in another place, which shall be nameless, I know not; but wherever he is, he is a born tyrant, and will rule if he can.’ And the opinion thus formed was a correct one, for Lord Thurlow was fierce and overbearing as a statesman, and was more feared than any other member of the Cabinet. In 1778 he had become Lord Chancellor, and been raised to the Peerage. His ugliness must have been a fact, for the Duke of Norfolk, who had at Arundel Castle a fine breed of owls, named one of them, on account of its ugliness, Lord Thurlow. Great fun was caused by a messenger coming to the Duke in the Lobby of the House of Peers with the news that Lord Thurlow had laid an egg.
In 1785 Lord Thurlow purchased Brockwell Green Farm, and other lands in the neighbourhood of Dulwich and Norwood, and chose Knight’s Hill as a suitable site for a house. The house was finished, but Lord Thurlow considered it too dear—it is said to have cost £30,000—and would never live in it, but remained in a smaller house, called Knight’s Hill Farm. As he was coming from the Queen’s Drawing-room, a lady asked him when he was going into his new house. ‘Madam,’ he replied, ‘the Queen has just asked me that impudent question, and, as I would not tell her, I will not tell you.’ Both the mansion and the farmhouse disappeared long ago.
The romantic marriage of Lord Eldon, then plain Mr. John Scott, of the Northern Circuit, forms a pleasant episode in legal history. Bessie Surtees was the daughter of Aubone Surtees, a banker and gentleman of honourable descent at Newcastle. Scott had met and danced with her at the assemblies in that town, and his pretensions were at first favoured by her family; but Sir William Blackett, a patrician but aged suitor, presenting himself, Bessie was urged to throw over Scott and become Lady Blackett. But Bessie was faithful, and one night descended from a window into her lover’s arms, and they were married at Blackshiels, North Britain. The future Lord Eldon came to London with his young and pretty wife, and settled in a humble, small house in Cursitor Street. Their housekeeping at first must have been on a somewhat restricted scale, for Lord Eldon, in after-life, used to relate that, in those days, he frequently ran into Clare Market for sixpennyworth of sprats. It was probably owing to these privations in the early days of their married life that her husband had afterwards to complain of her stinginess and her repugnance to society. In fact, she seems to have ruled him rather sternly, for we read of his often stealing into the George Coffee House, at the top of the Haymarket, to get a pint of wine, as Lady Eldon did not permit him to enjoy it in peace at home. Cyrus Redding, who tells us this, did not like Eldon either as a Tory or as a man. ‘His words,’ he writes, ‘were no index to his real feelings. He had a sterile soul for all things earthly, except money, doubts, and the art of drawing briefs.’
Cyrus Joy, who was present at the funeral of Lord Gifford, who was buried in the Rolls Chapel, relates that Lord Eldon and Lord Chief Justice Abbott were placed in a pew by themselves, and that he saw Lord Eldon, who was very shaky during the most solemn part of the service, touch the Chief Justice, evidently for his snuff-box, for the box was produced, and he took a large pinch of snuff, but the moment he had taken it he threw it away. ‘I was astonished,’ says Joy, ‘at the deception practised by so great a man, with the grave yawning before him.’ Whilst Lord Eldon held the Great Seal, in 1812, a fire occurred at Encombe, his country seat in Dorsetshire. As soon as it broke out, Lord Eldon buried the Seal in the garden whilst the engine played on the burning house. All the men-servants were helping to supply it with water. ‘It was,’ wrote Lord Eldon, ‘a very pretty sight, for all the maids turned out of their beds, and formed a line from the water to the fire-engine, handing the buckets. They looked very pretty, all in their shifts.’ When the fire was subdued, Lord Eldon had forgotten where he had buried the Seal, and all the gardeners and maids who had looked so pretty by firelight were set to work to dig up the garden till the Seal was found. Lord Eldon could be very rude at times. He and the Archbishop dined with George III., when he said: ‘It is a curious fact that your Majesty’s Archbishop and your Lord Chancellor married clandestinely. I had some excuse, certainly, for Bessie Surtees was the prettiest girl in all Newcastle; but Mrs. Sutton was always the same pumpkin-faced thing that she is at present.’ The King was much amused, as we are told.
Lord Eldon’s brother, Sir William Scott, had a strange matrimonial experience. His brother eloped with a man’s daughter, and thus entered the wedded state somewhat illegally. Sir William may be said to have entered it, in the true sense of the word, legally—that is, as a result of his legal status. He and Lord Ellenborough presided at the Old Bailey at the trial of the young Marquis of Sligo for having, while in the Mediterranean, lured into his yacht two of the King’s sailors, for which offence he was fined £5,000, and sentenced to four months’ imprisonment in Newgate. Throughout the trial his mother sat in the court, hoping that her presence would rouse in the bench or the jury feelings favourable to her son. When the above sentence was pronounced, Sir William accompanied it by a long moral jobation on the duties of a citizen. The Marchioness sent a paper full of satirical thanks to Sir William for his good advice to her son. Sir William read it as he sat on the bench, and, having looked towards the lady, received from her a glance and a smile which sealed his fate. Within four months he was tied fast (on April 10, 1813) to a voluble, shrill termagant, who rendered him miserable and contemptible. He removed to his wife’s house in Grafton Street, and, ever economical in his domestic expenses, brought with him his own door-plate from Doctor’s Commons, and placed it under the pre-existing plate of Lady Sligo. Jekyll, the punster of the day, condoled with Sir William at having to ‘knock under.’ Sir William had the plates transposed.
‘You see, I don’t knock under now,’ he said to Jekyll.
‘Not now,’ replied the punster; ‘now you knock up.’
This was said with reference to his advanced age.
Lord Erskine, another famous judge, when dining one day at the house of Sir Ralph Payne, afterwards Lord Lavington, found himself so indisposed as to be obliged to retire after dinner to another room. When he returned to the company, Lady Payne asked how he found himself. Erskine took out a piece of paper and wrote on it:
‘’Tis true I am ill, but I cannot complain,
For he never knew pleasure who never knew Payne.’
After he had ceased to hold the Seals as Lord Chancellor—and the time he held the office was one year only—he met Captain Parry at dinner, and asked him what he and his crew lived on in the Frozen Sea. Parry replied that they lived on seals. ‘And capital things too, seals are, if you only keep them long enough,’ was Erskine’s reply. Being invited to attend the Ministerial fish dinner at Greenwich when he was Chancellor, ‘To be sure,’ he answered; ‘what would your dinner be without the Great Seal?’ When Erskine lived at Hampstead he was asked at a dinner-party he attended, ‘The soil is not the best in that part of Hampstead where your seat is?’ ‘No,’ he answered, ‘very bad; for though my grandfather was buried there as an Earl near a hundred years ago, what has sprouted from it since but a mere Baron?’ Erskine married when very young, and had four sons and four daughters. When a widower and getting old he married a second time, and his latter days were passed in a state bordering on indigence. He died in 1823, in poverty. On July 17, 1826, a woman, poorly dressed, was brought before the Lord Mayor by a chimney-sweep as a person deserving assistance. The woman, being interrogated, declared herself to be Lady Erskine. The Lord Mayor conducted her into his private room, where he heard her sad story. She had lived with Lord Erskine several years before he married her, which he did in Scotland, whereby their children (four) were legitimatized. His death left her destitute, though she had been promised a pension from Government of twelve shillings a week, which had been paid very irregularly, and finally withdrawn altogether, because she would not be parted from her youngest child. The others had been taken care of by Government. She had for years endeavoured to maintain herself by female labour, but now she was totally destitute and actually starving. The Lord Mayor liberally supplied her present wants, and promised to intercede for her with Government, with what result we have been unable to ascertain. It was Mr. H. Erskine, brother of Lord Erskine, who, after being presented to Dr. Johnson by Boswell, slipped a shilling into the latter’s hand, whispering that it was for showing him his bear. Erskine could mould a jury at his pleasure, yet in Parliament he was not successful as an orator. But when pleading he was always ready with repartee. Once, when insisting on the validity of an argument before Lord Mansfield, the latter said: ‘I disproved it before you were born!’ ‘Yes, my Lord,’ replied Erskine, ‘because I was not born.’ Lord Erskine owned that the most discreditable passage in his life was his becoming Lord Chancellor. Some other judges seem to have had no faith in their own works. Lord Campbell was seated one day next to Chief Baron Pollock, when they were both Members of the House of Commons, and said: ‘Pollock, we lawyers receive the highest wages of an infamous profession.’
Sir Nicholas Bacon was so learned in the law that he was appointed attorney in the Court of Wards, and made a Privy Councillor and Keeper of the Great Seal under Elizabeth. When the Queen visited him at Redgrave, she observed, alluding to his corpulence, that he had built the house too little for himself. ‘Not so, madam,’ he answered; ‘but your Majesty has made me too big for my house.’ A man was brought before Sir Nicholas accused of a crime which, under the Draconian laws then in force, involved the penalty of death. He was found guilty, and, asked whether he had anything to say for himself, appealed to the judge’s compassion, seeing that he was a kind of relation to him, his name being Hogg. ‘True,’ replied Bacon; ‘but Hog is not Bacon till it’s hung.’ And hung, or hanged, to speak correctly, he was, and thus did not save his bacon. But the jest was a cruel one.