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