England has lately seen of men of Jewish origin climbing to the
highest distinction. But he was the first instance of a Jew who,
continuing to adhere to the creed of his forefathers, received a very
high office; for Mr. Disraeli, as every one knows, had been baptized
as a boy, and always professed to be a Christian. Jessel's career was
not marked by any remarkable incidents. He rose quickly to eminence at
the bar, being in this aided by his birth; for the Jews in London, as
elsewhere, hold together. There are among them many solicitors in
large practice, and these take a natural pleasure in pushing forward
any specially able member of their community. His powers were more
fully seen and appreciated when he became (in 1865) a Queen's Counsel,
and brought him with unusual speed to the front rank. He came into
Parliament at the general election of 1868 on the Liberal side, and
three years later was made Solicitor-General in Mr. Gladstone's first
Government, retaining, as was then usual, his private practice, which
had become so large that there was scarcely any case of first-rate
importance brought into the Chancery Courts in which he did not
appear. Although a decided Liberal, as the Jews mostly were until Lord
Beaconsfield's foreign policy had begun to lead them into other paths,
he had borne little part in politics till he took his seat in the
House of Commons; and when he spoke there, he obtained no great
success. Lawyers in the English Parliament are under the double
disadvantage of having had less leisure than most other members to
study and follow political questions, and of having contracted a
manner and style of speaking not suited to an assembly which, though
deliberative, is not deliberate, and which listens with impatience to
a technical or forensic method of treating the topics which come
before it.
Jessel's ability would have soon overcome the former difficulty, but
less easily the latter. Though he was lucid and powerful in his
treatment of legal topics, and made a quite admirable law officer in
the way of advising ministers and the public departments, he was never
popular with the House of Commons, for he presented his views in a
hard, dry, dogmatic form, with no graces of style or delivery.
However, he did not long remain in that arena, but on the retirement
of Lord Romilly from the office of Master of the Rolls, was in 1873
appointed to succeed him. In this post his extraordinary gifts found
their amplest sphere. The equity judges in England used always to sit,
and in nearly all cases do still sit, without a jury to hear causes,
with or without witnesses, and they despatch a great deal of the
heaviest business that is brought into the courts. Commercial causes
of the first importance come before them, no less than those which
relate to trusts or to real property; and the granting of injunctions,
a specially serious matter, rests chiefly in their hands. Each equity
judge sits alone, and the suitor may choose before which of them he
will bring his case. Among the four--a number subsequently increased
to five--equity judges of first instance, Jessel immediately rose to
the highest reputation, so that most of the heavy and difficult cases
were brought into his court. He possessed a wonderfully quick, as well
as powerful, mind, which got to the kernel of a matter while other
people were still hammering at the shell, and which applied legal
principles just as swiftly and surely as it mastered a group of
complicated facts.
The Rolls Court used to present, while he presided over it, a curious
and interesting sight, which led young counsel, who had no business to
do there, to frequent it for the mere sake of watching the Judge. When
the leading counsel for the plaintiff was opening his case, Jessel
listened quietly for the first few minutes only, and then began to
address questions to the counsel, at first so as to guide his remarks
in a particular direction, then so as to stop his course altogether
and turn his speech into a series of answers to the Judge's
interrogatories. When, by a short dialogue of this kind, Jessel had
possessed himself of the vital facts, he would turn to the leading
counsel for the defendant and ask him whether he admitted such and
such facts alleged by the plaintiff to be true. If these facts were
admitted, the Judge proceeded to indicate the view he was disposed to
take of the law applicable to the facts, and, by a few more questions
to the counsel on the one side or the other, as the case might be,
elicited their respective legal grounds of contention. If the facts
were not admitted, it of course became necessary to call the witnesses
or read the affidavits, processes which the vigorous impatience of the
Judge considerably shortened, for it was a dangerous thing to read to
him any irrelevant or loosely-drawn paragraph. But more generally his
searching questions and the sort of pressure he applied so cut down
the issues of fact that there was little or nothing left in
controversy regarding which it was necessary to examine the evidence
in detail, since the counsel felt that there was no use in putting
before him a contention which they could not sustain under the fire
of his criticism. Then Jessel proceeded to deliver his opinion and
dispose of the case. The affair was from beginning to end far less an
argument and counter-argument by counsel than an investigation
directly conducted by the Judge himself, in which the principal
function of the counsel was to answer the Judge's questions concisely
and exactly, so that the latter might as soon as possible get to the
bottom of the matter. The Bar in a little while came to learn and
adapt themselves to his ways, and few complained of being stopped or
interrupted by him, because his interruptions, unlike those of some
judges, were neither inopportune nor superfluous. The counsel (with
scarcely an exception) felt themselves his inferiors, and recognised
not only that he was better able to handle the case than they were,
but that the manner and style in which they presented their facts or
arguments would make little difference to the result, because his
penetration was sure to discover the merits of each contention, and
neither eloquence nor pertinacity would have the slightest effect on
his resolute and self-confident mind. Thus business was despatched
before him with unexampled speed, and it became a maxim among
barristers that, however low down in the cause-list at the Rolls your
cause might stand, it was never safe to be away from the court, so
rapidly were cases "crumpled up" or "broken down" under the blows of
this vigorous intellect. It was more surprising that the suitors, as
well as the Bar and the public generally, acquiesced, after the first
few months, in this way of doing business. Nothing breeds more
discontent than haste and heedlessness in a judge. But Jessel's speed
was not haste. He did as much justice in a day as others could do in a
week; and those few who, dissatisfied with these rapid methods, tried
to reverse his decisions before the Court of Appeal, were very seldom
successful, although that court then contained in Lord Justice James
and Lord Justice Mellish two unusually strong men, who would not have
hesitated to differ even from the redoubtable Master of the Rolls.
As I have mentioned Lord Justice Mellish, I may turn aside for a
moment to say a word regarding that extraordinary man, who stood along
with Cairns and Roundell Palmer in the foremost rank of Jessel's
professional contemporaries. Mellish held for some years before his
elevation to the Bench in 1869 a position unique at the English
Common-law Bar as a giver of opinions on points of law. As the
Israelites in King David's day said of Ahithophel that his counsel was
as if a man had inquired at the oracle of God,[25] so the legal
profession deemed Mellish practically infallible, and held an opinion
signed by him to be equal in weight to a judgment of the Court of
Exchequer Chamber (the then court of appeal in common-law cases). He
was not effective as an advocate addressing a jury, being indeed far
too good for any jury; but in arguing a point of law his unerring
logic, the lucidity with which he stated his position, the cogency and
precision with which he drew his inferences, made it a delight to
listen to him. The chain of ratiocination seemed irrefragable:
+en d' ethet' akmotheto megan akmona, kopte de desmous
arrhektous alutous, ophr' empedon authi menoien.+[26]
He had, indeed, but one fault as an arguer. He could not argue a point
whose soundness he doubted as effectively as one in which he had
faith; and when it befell that several points arose in a case, and the
Court seemed disposed to lay more stress on the one for which he cared
little than on the one he deemed conclusive, he refused to fall in
with their view and continued to insist upon that which his own mind
approved.
I remember to have once heard him and Cairns argue before the House of
Lords (sitting as the final Court of Appeal) a case relating to a
vessel called the _Alexandra_--it was a case arising out of an
attempt of the Confederates, during the American War of Secession, to
get out of a British port a cruiser they had ordered. Cairns spoke
first with all his usual power, and seemed to have left nothing to be
added. But when Mellish followed on the same side, he set his points
in so strong a light, and placed his contention on so solid a basis,
that even Cairns's speech was forgotten, and it seemed impossible that
any answer could be found to Mellish's arguments. One felt as if the
voice of pure reason were speaking through his lips.
Such an intellect might seem admirably qualified for judicial work.
But as a judge, Mellish, admirable though he was in temper, in
fairness, in learning, and in logic, did not win so exceptional a
reputation as he had won at the Bar. People used to ascribe this
partly to his weak health, partly to the fact that he, who had been a
common-law practitioner, was sitting in a court which heard equity
appeals, and alongside of a quick and strong colleague reared in the
equity courts.[27] But something may have been due to the fact that he
needed the stimulus of conflict to bring out the full force of his
splendid intelligence. A circumstance attending the appointment of
Mellish illustrates the remark already made that a great counsel whose
work lies apart from so-called "sensation cases" may remain unknown to
his contemporaries. When Mr. Gladstone, being then Prime Minister, and
having to select a Lord Justice of Appeal, was told that Mellish was
the fittest man for the post, he asked, "Can that be the boy who was
my fag at Eton?" He had not heard of Mellish during the intervening
forty years!
However, I return to the Master of the Rolls. In dealing with facts,
Jessel has never had a superior, and in our days, perhaps, no rival.
He knew all the ways of the financial and commercial world. In his
treatment of points of law, every one admitted and admired both an
extraordinary knowledge and mastery of reported cases, and an
extremely acute and exact appreciation of principles, a complete power
of extracting them from past cases and fitting them to the case in
hand. He had a memory which forgot nothing, and which, indeed, wearied
him by refusing to forget trivial things. When he delivered an
elaborate judgment it was his delight to run through a long series of
cases, classifying and distinguishing them. His strength made him
bold; he went further than most judges in readiness to carry a
principle somewhat beyond any decided case, and to overrule an
authority which he did not respect. The fault charged on him was his
tendency, perhaps characteristic of the Hebrew mind, to take a
somewhat hard and dry view of a legal principle, overlooking its more
delicate shades, and, in the interpretation of statutes or documents,
to adhere too strictly to the letter, overlooking the spirit. An
eminent lawyer said, "If all judges had been like Jessel, there might
have been no equity." In that respect many deemed him inferior to Lord
Cairns, the greatest judge among his contemporaries, who united to an
almost equally wide and accurate knowledge of the law a grasp of
principles even more broad and philosophical than Jessel's was. Be
this as it may, the judgments of the Master of the Rolls, which fill
so many pages of the recent English Law Reports, are among the best
that have ever gone to build up the fabric of the English law. Except
on two occasions, when he reserved judgment at the request of his
colleagues in the Court of Appeal, they were delivered on the spur of
the moment, after the conclusion of the arguments, or of so much of
the arguments as he allowed counsel to deliver; but they have all the
merits of carefully-considered utterances, so clear and direct is
their style, so concisely as well as cogently are the authorities
discussed and the grounds of decision stated. The bold and sweeping
character which often belongs to them makes them more instructive as
well as more agreeable reading than the judgments of most modern
judges, whose commonest fault is a timidity which tries to escape, by
dwelling on the details of the particular case, from the enunciation
of a definite general principle. Positive and definite Jessel always
was. As he put it himself: "I may be wrong, but I never have any
doubts."
At the Bar, Jessel had been far from popular; for his manners were
unpolished, and his conduct towards other counsel overbearing. On
the Bench he improved, and became liked as well as respected. There
was a sort of rough _bonhomie_ about him, and though he could be
disagreeable on occasions to a leading counsel, especially if brought
from the common-law bar into his court, he showed a good-humoured
wish to deal gently with young or inexperienced barristers. There
was also an obvious anxiety to do justice, an impatience of mere
technicalities, and a readiness, remarkable in so strong-willed a
man, to hear what could be said against his own opinion, and to
reconsider it. Besides, a profession is naturally proud of any one
whose talents adorn it, and whose eminence seems to be communicated
to the whole body.
Ever since, under the Plantagenet kings, the Chancery became a law
court, the office of Master of the Rolls had been that of a judge of
first instance. In 1881 its character was changed, and its occupant
placed at the head of the Court of Appeal. Thus it was as an appellate
judge that Jessel latterly sat, giving no less satisfaction in that
capacity than in his former one, and being indeed confessedly the
strongest judicial intellect (except Lord Cairns) on the Bench.
Outside his professional duties, his chief interest was in the
University of London, at which he had himself graduated. He was a
member of its senate, and busied himself with its examinations, being
up till the last excessively fond of work, and finding that of a judge
who sits for five or six hours daily insufficient to satisfy his
appetite. He was not what would be called a highly cultivated man,
although he knew a great deal beyond the field of law, mathematics,
for instance, and Hebrew literature and botany, for he had been
brought up in a not very refined circle, and had been absorbed in
legal work during the best years of his life. But his was an
intelligence of extraordinary power and flexibility, eminently
practical, as the Semitic intellect generally is, and yet thoroughly
scientific. And he was also one of those strong natures who make
themselves disliked while they are fighting their way to the top, but
grow more genial and more tolerant when they have won what they
sought, and perceive that others admit their pre-eminence. The
services which he rendered as a judge illustrate not only the
advantage of throwing open all places to all comers--the bigotry of an
elder day excluded the Jews from judicial office altogether--but also
the benefit of having a judge at least equal in ability to the best of
those who practise before him. It was because Jessel was so easily
master in his court that so large and important a part of the judicial
business of the country was, during many years, despatched with a
swiftness and a success seldom equalled in the annals of the English
Courts.
-----
[25] 2 Sam. xvi. 23.
[26] _Odyss._ viii. 274: "And upon the anvil-stand he set the mighty
anvil; and he forged the links that could be neither broken nor
loosed, so that they should stay firm in their place."
[27] Lord Justice James said of his colleague that he had only one
defect as a judge: "He was too anxious to convince counsel that
they were wrong, when he thought their contention unsound,
seeming to forget that counsel are paid not to be convinced."
LORD CHANCELLOR CAIRNS
Hugh M'Calmont Cairns, afterwards Earl Cairns (born 1819, died
1885), was one of three remarkable Scoto-Irishmen whom the north-east
corner of Ulster gave to the United Kingdom in one generation, and
each of whom was foremost in the career he entered. Lord Lawrence
was the strongest of Indian or Colonial administrators, and did more
than any other man to save India for England in the crisis of the
great Mutiny of 1857. Lord Kelvin has been, since the death of
Charles Darwin, the first among British men of science. Lord Cairns
was unquestionably the greatest judge of the Victorian epoch, perhaps
of the nineteenth century.[28] His name and family were of Scottish
origin, but he combined with the shrewd sense and grim persistency
of Scotland some measure of the keen partisanship which marks the
Irish Orangeman. Born an Episcopalian, he grew up a Tory in
politics, an earnest Low-Church Evangelical in religion; nor did his
opinions in either respect ever seem to alter during his long
life. His great abilities were perceived both at school (he was
educated at the Academy in Belfast) and at college (Trinity College,
Dublin), and so much impressed the counsel in whose chambers he
studied for a year in London, that he strongly dissuaded the young
man from returning to Dublin to practise at the Irish bar, promising
him a brilliant career on the wider theatre of England. The prediction
was verified by the rapidity with which Cairns, who had, no doubt,
the advantage of influential connections in the City of London, rose
into note. He obtained (as a Conservative) a seat in Parliament
for his native town of Belfast when only thirty-three years of age,
and was appointed Solicitor-General to Lord Derby's second Ministry
six years later--a post which few eminent lawyers have reached before
fifty. In the House of Commons, though at first somewhat diffident and
nervous, he soon proved himself a powerful as well as ready speaker,
and would doubtless have remained in an assembly where he was
rendering such valuable services to his party but for the weakness
of his lungs and throat, which had threatened his life since boyhood.
He therefore accepted, in 1867, the office of Lord Justice of
Appeal, with a seat in the House of Lords, and next year was made
Lord Chancellor by Mr. Disraeli, then Prime Minister, who dismissed
Lord Chelmsford, then Chancellor, in order to have the benefit of
Cairns's help as a colleague. Disraeli subsequently caused him to
be raised to an earldom.
After Lord Derby's death, Cairns led the Tory party in the House of
Lords for a time (replacing the Duke of Richmond when the latter
quitted the leadership), but his very pronounced Low-Church
proclivities, coupled perhaps with a certain jealousy felt toward him
as a newcomer, prevented him from becoming popular there, so that
ultimately the leadership of that House settled itself in the hands of
Lord Salisbury, a statesman not superior to Cairns in political
judgment or argumentative power, but without the disadvantage of being
a lawyer, possessing a wider range of political experience, and in
closer sympathy with the feelings and habits of the titled order.
There were, however, some peers who, when Lord Beaconsfield died in
1881, desired to see Cairns chosen to succeed him in the leadership of
the Tory party, then in opposition, in the Upper Chamber. Whether in
opposition or in power, Cairns took a prominent part in all
"full-dress" political debates in the House of Lords and in the
discussion of legal measures, and was indeed so absolutely master of
the Chamber when such measures came under discussion, that the
Liberal Government, during the years from 1868 to 1874, and again from
1880 till 1885, could carry no legal reforms through the House of
Lords except by his permission, which, of course, was never given when
such reforms could seem to affect any political issue. Yet the
vehemence of his party feeling did not overcast his judgment. It was
mainly through his interposition (aided by that of Archbishop Tait)
that the House of Lords consented to pass the Irish Church Bill of
1869, a measure which Cairns, of course heartily disliking it,
accepted for the sake of saving to the disestablished Church a part of
her funds, since these might have been lost had the Bill been rejected
then and passed next year by an angrier House of Commons. Of all the
members of Disraeli's two Cabinets, he was the one whom Disraeli
himself had been wont most to trust and most to rely on. In January
1874, when Mr. Gladstone's suddenly announced dissolution of
Parliament startled all England one Saturday morning, Disraeli, who
heard of it while still in bed, was at first frightened, thinking that
the Liberal leader had played his cards boldly and well, and would
carry the elections. When his chief party manager came to see him he
was found restless and dejected, and cried out, "Send for Cairns at
once." Lord Cairns was sent for, came full of vigour, hope, and
counsel, and after an hour's talk so restored the confidence of his
ally that Disraeli sat down in the best spirits to compose his
electoral manifesto. As everybody knows, Cairns's forecast was right,
and the Tories won the general election by a large majority.
For political success Cairns had several qualities of the utmost
value--a stately presence, a clear head, a resolute will, and splendid
oratorical gifts. He was not an imaginative speaker, nor fitted to
touch the emotions; but he had a matchless power of statement, and a
no less matchless closeness and cogency in argument. In the famous
controversies of 1866, he showed himself the clearest and most
vigorous thinker among the opponents of reform, more solid, if less
brilliant, than was Robert Lowe. His diction, without being
exceptionally choice, was pure and precise, and his manner had a
dignity and weight which seemed to compel your attention even when
the matter was uninteresting. A voice naturally neither strong nor
musical, and sometimes apt to sound hollow (for the chest was weak),
was managed with great skill; action and gesture were used sparingly
but effectively, and the tall well-built figure and strongly-marked,
somewhat Roman features, with their haughty and distant air,
deepened the impression of power, courage, and resolution which was
characteristic of the whole man.
The qualities of oratory I have described may seem better fitted to a
comparatively sober and sedate assembly like the House of Lords than
to a changeful and excitable assembly like the House of Commons. Yet,
in point of fact, Cairns spoke better in the Commons than he did
afterwards in the Lords, and would have left an even higher oratorical
reputation had his career in the popular House been longer and his
displays more numerous. The reason seems to be that the heat of that
House warmed his somewhat chilly temperament, and roused him to a more
energetic and ardent style of speaking than was needed in the Upper
Chamber, where he and his friends, commanding a large majority, had
things all their own way. In the House of Commons he confronted a
crowd of zealous adversaries, and put forth all the forces of his
logic and rhetoric to overcome them. In the more languid House of
Lords he was apt to be didactic, sometimes even prolix. He overproved
his own case without feeling the need, which he would have felt in the
Commons, of overthrowing the case of the other side; his manner wanted
animation and his matter variety. Still, he was a great speaker,
greater as a speaker upon legal topics, where a power of exact
statement and lucid exposition is required, than any one he left
behind him.