To a sane world one must offer some few words of excuse for writing
judgments in vacation. One has heard of the emancipated slave who
invested his savings in purchasing a share in another slave and of the
historical bus-driver who made use of his annual holiday to drive a bus
for a sick friend. And so it is with smaller men. One gets so used to
giving judgments upon matters, the essence and properties of which one
really knows very little about, that the habit remains after the sittings
are over into the vacation. And on that rainy day, when golf and the more
important pursuits of life are impossible, one finds oneself alone with
pen, ink and paper, and thoughts that voluntarily move towards written
judgments. And there is this excuse, that a Judge of a County Court can
offer which would not be possible to his ermined brother—or should it be
cousin, a poor relation had best be careful in claiming relationship—of
the High Court. If we have any lurking desire to write our judgments,
we shall not find leisure or opportunity to write them in term time.
There is such a vast number of cases to try that judgments must be given
forthwith, relying on authority perhaps rather than accuracy for the
kindly manner of their reception. Well do I remember a great Judge giving
a parting word of advice to a friend of mine on the Northern Circuit who
preceded me to the County Court Bench: “Better be strong and wrong than
weak and right.” The wisdom of the world is on the side of this epigram,
and demands that all judgments of real importance should be given
forthwith and spoken rather than written. Thus that most influential
arbitrator in the larger affairs of Englishmen, the umpire in the cricket
field, is never allowed to write his judgments.
It must be a pleasant thing to listen for many days to the learned
arguments of the ablest minds at the bar, noting down here and there
an added thought of your own which is to find a place in the ultimate
judgment which some days hence you will write at leisure in your study
surrounded by the reports and text books necessary to give weight to
your written word. A poor Judge of the County Court can have no such
refinement of pleasure. Does Bill’s cat trespass in Thomas’s pigeon
loft, at Lambeth or Salford?—the twenty-five shilling claim is argued
in unison, certainly without harmony, until a skilful adjudication is
planted right between the disputants in a breathless pause in their
contest, and they are whirled out of Court speechless and astonished at
the result to revive the wordy argument in the street or to join their
voices in maledictions of the law and all her servants. How far otherwise
in the High Court? Should some millionaire’s malkin, some prize Angora
of Park Lane, slay the champion homer of a pigeon-flying Marquis—what a
summoning to the fray of Astburys and Carsons. How thoughtfully through
the long days of the hearing would learned counsel “watch” on behalf of
the London County Council. What ancient law concerning pigeons and cats
would be disentombed by hard-working juniors and submissively quoted
to the Bench by their leaders as matter “which I am sure your Lordship
remembers.” And then how interesting to write down the final just word of
the Law of England on cats and pigeons, and to read it amid a reverent
hush of learned approval, and finally to bring down the curtain on the
comedy, justifying the hours and treasure that had been expended to
obtain the judgment you had written, with some such tag of learning as:
“Deliberare utilia mora utilissima est.”
I am by no means suggesting that these delays of the law would be useful
in inferior Courts, or that Judges of the County Court have the wit and
ability to write judgments in term time of value to the world. Inferior
as they necessarily are in equipment of learning and worldly emolument
to the Judges of the High Court, they can only take a humble pleasure in
believing that they administer justice at least as indifferently.
But if you are driven to writing judgments in vacation, there is this to
be said for it, that you can choose your own subject upon which you will
deliver your words of wisdom, you are not forced to listen to arguments
pro and con before retiring to the study with the text books, and you are
bound by no precedents governing your thoughts and driving your ideas
along some mistaken lane that you know in your own heart leads to No
Man’s Land. Nor are you tied down to the narrow, courtly and somewhat
pompous language in which it is the custom of the judiciary to publish
their wisdom.
There is this further to be said about judgments written in vacation. No
one is bound to listen to them, no shorthand writer has to strain his
ear to take them down, no editor of the Law Reports has to disobey his
conscience to include them in the authorised version of the law; and,
best of all, no Court of Appeal can either reverse them or lessen their
authority by approving them. Indeed, it is only in one attribute that
judgments in vacation seem to me scarcely as satisfactory as judgments
delivered in term time. With the latter costs follow the event.
Many of these papers have appeared in print before. The oldest of them,
Dorothy Osborne, appeared in the _English Illustrated Magazine_ as long
ago as April 1886, and I have reprinted it in the belief that many of
Dorothy’s servants may like to read the little essay that led to my
receiving from Mrs. Longe her copies of the original letters and her
notes upon them, whereby the full edition was at length published. The
quotations in it were taken from Courtenay’s extracts in his “Life of
Temple.” In reprinting the article here I have only amended actual errors
and misprints. In the paper on “An Elizabethan Recorder” the spelling has
been modernized. In reproducing the article on “The Insolvent Poor” which
was published originally in the _Fortnightly Review_ in May 1898, it has
not been thought necessary to modernize all the instances and figures
that were then used. Unhappily the situation of the Insolvent Poor is no
better to-day than it was in 1898, and the argument of that day remains
unaffected by any reform. “Kissing the Book” was published before the
recent alteration in the law, but even now the custom is not extinct, and
the folk-lore of it may still be entertaining. I have to thank Messrs.
Macmillan for leave to reprint the paper on “Dorothy Osborne,” and my
thanks are also due to the proprietors of the _Fortnightly Review_, _The
Cornhill_, _The Manchester Guardian_, _The Contemporary Review_, _The
Pall Mall Magazine_, and _The Rapid Review_, for their leave to reprint
other papers.