The Life of Thomas E. Scrutton 9781107468511, 9781107032583

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THE LIFE OF THOMAS E. SCRUTTON

Karl Llewellyn described Thomas Scrutton as “the greatest Englishspeaking commercial judge of a century”. Scrutton played a key role in a number of politically sensitive court cases from the Great War to the 1930s. This biography draws on unpublished sources to evaluate his contribution as counsel, campaigner and judge in a number of areas: the development of a modern law of copyright; the checking of executive power in and after the Great War; and his attempt to develop English commercial law on a basis which reflected the practices and expectations of the commercial community. In addition to providing valuable insights into the nature of legal practice and advancement in the Victorian and Edwardian eras, the book examines Llewellyn’s claim that Scrutton adopted a “realist” approach to the development of commercial law, and uses the body of Scrutton’s judgments to explore the limits of a “realist” approach to jurisprudence. david foxton is a leading practitioner in commercial law and an honorary professor at the University of Nottingham. He has won numerous awards and most recently was named 2012 Commercial Litigation Silk (QC) of the year.

T.E. Scrutton c. 1920s A family photograph reproduced courtesy of Dr Mary Midgley

THE LIFE OF THOMAS E. SCRUTTON DAVID FOXTON

University Printing House, Cambridge CB2 8BS, United Kingdom Published in the United States of America by Cambridge University Press, New York Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107032583 © David Foxton 2013 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2013 Printed in the United Kingdom by Clays, St Ives plc A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data Foxton, David, 1965– The life of Thomas E. Scrutton / David Foxton. pages cm Includes bibliographical references and index. ISBN 978-1-107-03258-3 (Hardback) 1. Scrutton, Thomas Edward, 1856–1934. 2. Lawyers–Great Britain–Biography. KD631.S37F69 2013 340.092–dc23 [B] 2013005732

I. Title.

ISBN 978-1-107-03258-3 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

CONTENTS

Preface ix Table of cases 1

Antecedents 1.1 1.2 1.3 1.4 1.5 1.6

2

1

The Scruttons 1 Thomas Scrutton: “Thomas the elder” 2 Thomas Urquhart Scrutton: “Thomas the younger” The young T.E. 10 Mill Hill in retrospect 16 The school board scandal 18

A university man 2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8 2.9 2.10

3

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28

That godless institution in Gower Street 28 Scrutton at UCL 29 The University College Debating Society 32 Scrutton’s Grand Tour 34 University College again 35 Trinity College, Cambridge 37 The Cambridge University Moral Sciences Club The Cambridge University Bicycling Club 49 The Cambridge Union 52 Scrutton’s university career 58

60

Pupil, professor, husband and politician 3.1 3.2 3.3 3.4 3.5 3.6 3.7

4

A pupil barrister 60 The London Bicycling Club 63 Professor at UCL 65 A teaching university for London? 69 Mr and Mrs Scrutton 71 The London and Counties Liberal Union The Eighty Club 78

v

74

46

vi

contents 3.8 3.9 3.10 3.11

4

120

“Copyright” 121 Copyright advocate 124 Copyright activist 129 Repelling pirates 134 Reform at last 137 Charterparties 138 More Yorke Prizes 141 The Scrutton machine 147

The Bench 6.1 6.2 6.3 6.4 6.5 6.6 6.7 6.8 6.9

7

The Bar in the 1880s 91 Starting out 95 The Commercial Court 100 Pupil master 105 Life outside the law 107 A silk gown 110 Scrutton the advocate 114 Time for a change? 117

Copyright and the author 5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.8

6

89

“Patient, laborious asses”: onwards and upwards at the Bar 91 4.1 4.2 4.3 4.4 4.5 4.6 4.7 4.8

5

The damnable question 79 A Home Rule election 82 The Eighty Club revolt 87 Scrutton’s political career in retrospect

150

Prelude to an appointment 150 On circuit 153 Crime and punishment 155 Commercial judge 159 The Revenue Paper 163 The injudicious judge 169 A judicial miscellany 173 Law on the links 175 At home 177

The war and the law

180

7.1 The Scruttons at war 180 7.2 Trading with the enemy 186 7.3 War and contract 190

vii

contents 7.4 7.5 7.6 7.7

8

The appellate temperament 215 The Court of Appeal 219 Class and the judiciary 225 The Russian Revolution 233 The judiciary and the executive 236 “The finest commercial lawyer” 249 Man about town 254 Educating the lawyers 256

262

Scrutton the realist? 9.1 9.2 9.3 9.4 9.5 9.6 9.7 9.8 9.9

10

215

At the height of his powers: 1919–1927 8.1 8.2 8.3 8.4 8.5 8.6 8.7 8.8

9

The Brides in the Bath 192 The Court of Appeal 199 Servant of the state? 202 The protection of property 212

Karl Llewellyn 262 What makes a realist judge? 264 Scrutton’s commercial “situation sense” The interpretation of contracts 273 Consumer contracts 276 The problem of certainty 279 The right of rejection in sale of goods The protection of third-party interests Realism v. formalism? 291

“Old Scrutton” 10.1 10.2 10.3 10.4 10.5 10.6 10.7

293

Passed over 293 Scrutton v. Hewart 299 Scrutton v. McCardie 302 Scrutton’s court 308 Recognition at home and abroad The end 316 Scrutton today 318

Bibliography Index 339

321

314

267

283 288

PREFACE

My first encounter with T.E. Scrutton came when I began pupillage at what was then 4 Essex Court in the Temple. An indulgent university education spent studying legal history, the comparative law of tort and criminology and penology had ill prepared me for drafting opinions advising on liability under the Bills of Lading Act 1855 or whether a vessel which was unable to discharge grain due to infestation of her holds was off-hire. My early efforts on these and similar questions were promptly dispatched by my pupil master – the term was still permitted – into the wastepaper basket, as had been the efforts of many pupils before. I soon discovered that at least some of the answers to the problems I was encountering were to be found in a book called Scrutton on Charterparties and Bills of Lading, then in its eighteenth edition and edited by Sir Alan Mocatta and Stewart Boyd QC. Over the following years, it became clear that many more of the answers were to be found in judgments of Scrutton himself – I can recall hours spent attempting to resolve a particular problem of the law of marine insurance, only to stumble across a clear and unanswerable statement of principle in a judgment of Scrutton’s in a case called Phoenix Insurance Co. v. De Monchy.1 In 1996, I became one of the editors of Scrutton on Charterparties, and have sailed between the Scylla of critical reviews and the Charybdis of new and competing works for two subsequent editions. While the works of Scrutton the writer and judge became familiar, I knew very little about Scrutton the man, beyond the bare facts that he had a beard and, so I understood, was not well liked. When one of my colleagues in chambers began term with a “holiday beard”, he remarked to a retired judge that at least he would match Scrutton in facial hair if not in his accomplishments as a lawyer. The response – “he was not a nice man, you know” – was a fairly typical reaction. My researches into 1

(1928) 34 Lloyd’s Law Rep. 194.

ix

x

preface

other areas of law during Scrutton’s judicial tenure – decisions during the Great War, and the Anglo-Irish “Troubles” of 1916–25 – revealed new depths and qualities to Scrutton’s judicial achievements beyond his mastery of commercial law. The publication of the 125th anniversary edition of Scrutton on Charterparties in 2011 prompted more extensive biographical research, and this book is the outcome. The task of the legal biographer is generally a forlorn one. The lives of judges are not of great interest to non-lawyers, and books on this subject inhabit the world in which works unsigned by the author are much harder to find than those bearing personal dedications, and in which a second edition is infinitely harder to find than the first. One of the perennial difficulties is to how to address judgments – by far the subject’s largest and most lasting literary outpouring, and yet only of intrinsic interest to those involved in the cases or in search for enlightenment on other cases in which they are involved. I have eschewed R.F.V. Heuston’s judgments appendix,2 and attempted to analyse Scrutton’s body of judgments thematically, with a more detailed consideration of a smaller number of cases of political or a particular personal significance. In addition, in Chapter 9 I have undertaken a more extensive analysis of Scrutton’s work as a commercial lawyer. Within his family Scrutton was – I was told by his granddaughter – always called “Ted”.3 Among professional colleagues, apparently, he was known as “Ned”.4 Such familiarity seems unthinkable, and he is referred to by his surname throughout this book, save for Chapter 1, which is concerned with many Scruttons, in which he is referred to as “T.E.” I have been dependent on the kindness of both friends and strangers in the course of preparing this book. I would like to thank the Bar Golf Society; Jane Belford for producing the table of cases; the Bodleian Library; Roderick Braithwaite; Iain Christie; Murray Craig of the Chamberlain’s Court, Corporation of London; Cambridge University Library; Cambridge University Union; Elizabeth Dawson (Institute of Advanced Legal Studies); Conrad Dehn QC; Kenneth Dunn (National Library of Scotland); Gray’s Inn Library; John Green; Gwynedd Archives; the House

2

3

4

See R.F.V. Heuston, Lives of the Lord Chancellors 1885–1940 (1964), in which each biography is followed by a short appendix summarising the subject’s judgments (“Heuston, Lives”). Mary Midgley (Scrutton’s granddaughter), The Owl of Minerva: A Memoir (2005), p. 45 (“Midgley”). (1934) South African Law Times 153.

preface

xi

of Lords Record Office; Nigel Hague; Amy Hannon; Harvard Law School Special Collections Department; Inner Temple Library; the Institute of Advanced Legal Studies; Lincoln’s Inn Library; Middle Temple Library; Dr Mary Midgley; Mill Hill School; the National Archives; the National Library of Scotland; Lord Pannick QC; Royal Ashdown Forest Golf Club; the Reform Club; Jane Robins; the Royal Archives; Tony Scott (for access to the Climbers Club journal); David Scrutton; Elizabeth Scudder (London Metropolitan Library); Viscount Simon for permission to quote from the Simon Papers; Jonathan Smith, the Archivist at Trinity College, Cambridge; Colin Strachan; the University of Chicago; the Special Collections Department and Records Office of University College London; Westminster City Archives; and Lesley Whitehead (Middle Temple Archivist). I would like to acknowledge the permission of Her Majesty Queen Elizabeth II to make use of and quote from material from the Royal Archives. This book is dedicated to my wife Heather, and my four children Tom, Hannah, Kate and William.

TABLE OF CASES

Agip (Africa) Ltd v. Jackson and Others, [1991] Ch. 547, 252 Aksionairnoye Obschestvo Dila Mechaniches-Koyi Obrabotky Dievera A.M. Luther v. James Sagor, [1921] 3 K.B. 552, 233–4 Albermarle v. Hind, [1928] 1 K.B. 307, 291 Andersen v. Marten Marine Insurance, (1906–7) 12 Com. Cas. 309; (1907–8) 13 Com. Cas. 205, 112 Andrews Brothers (Bournemouth) Ltd v. Singer and Co. Ltd, [1934] 1 K.B. 17, 277 Anglo-Californian Bank (Ltd) v. London and Provincial Marine and General Insurance Co. Ltd, (1904–5) 10 Com. Cas. 1, 112 Anglo-Newfoundland Development Corporation v. The King, [1920] 1 K.B. 214, 214 Arbitration between L. Sutro & Co. and Heilbut, Symons & Co., in re, [1917] 2 K.B. 348, 274 Arbitration between Moore & Co. Ltd and Landauer and Co., in re, [1923] 2 K.B. 519, 284 Arbuthnott v. Fagan, (1995) C.L.C. 1396, 219 Arcos Ltd v. London & Northern Trading Co. Ltd, (1932) 44 Lloyd’s Law Rep. 6, 285 Arcos Ltd v. Ronaasen & Sons, (1932) 43 Lloyd’s Law Rep. 1 (CA); [1933] A.C. 470 (H.L.), 285, 287–8 Arnhold Karberg & Co. v. Blythe Green, [1915] 2 K.B. 379, 163 Aronson v. Mologa Holzindustrie AG, (1927) 28 Lloyd’s Law Rep. 81, 252 Attorney-General of New South Wales v. Makin, (1893) 14 N.S.W.L.R. 1; [1894] A.C. 57 (P.C.), 196 Attorney-General and Others v. Cory Brothers, [1921] 1 A.C. 521, 218 Attorney-General v. De Keyser’s Royal Hotel, [1920] A.C. 508, 212 Attorney-General v. Great Southern & Western Railway Co., [1924] 2 K.B. 450, 239–40 Attorney-General v. Manchester Ship Canal Co., (1922) 10 Lloyd’s Law Rep. 787, 218 Attorney-General v. Wiltshire United Dairies Ltd, (1921) 37 T.L.R. 884; (1922) 38 T.L.R. 781 (H.L.), 246–8 Bailey v. Stoke-on-Trent Assessment Committee, [1931] 1 K.B. 385, 313 Banco do Portugal v. Waterlow, [1932] A.C. 452 (H.L.), 311 Bank Line Ltd v. Arthur Capel, [1919] A.C. 435, 191 Banque Belge v. Hambrouck, [1921] 1 K.B. 321, 251

xii

table of cases

xiii

Banque Internationale de Commerce de Petrograd v. Goukassow, [1923] 2 K.B. 682; [1925] A.C. 150 (H.L.), 235–6 Baxter’s Leather v. Royal Mail Steam Packet, [1908] 2 K.B. 626, 117 Bede Steam Shipping Co., in re, [1917] 1 Ch. 23, 200 Bell v. Lever Brothers, [1931]1 K.B. 557; [1932] 1 A.C. 161 (H.L.), 311 Bennison v. Hulton, The Times, 15 April 1926, 221 Berge Sisar, see The Borealis AB (formerly Borealis Petrokemi AB and Statoil Petrokemi AB) v. Stargas Ltd Bermal v. Breskel, The Times, 21 October 1931, 304 Biddell v. Clemens Horst, [1911] 1 K.B. 934, 268 Blay v. Pollard and Morris, [1930] 1 K.B. 628, 276 Blyth Harbour Commissioners v. Crown, (1925) 22 Lloyd’s Law Rep. 404, 217 Boaler, in re, [1915] 1 K.B. 21, 175 Board of Trade v. Anglo-American Oil Co., [1911] 2 K.B. 225, 161 Boosey v. Whight, [1899] 1 Ch. 836 (Ch. D.); [1900] 1 Ch. 122, 126–7 Booth Steamship v. Cargo Fleet Iron Co., [1916] 2 K.B. 570, 162, 199 Borealis AB (formerly Borealis Petrokemi AB and Statoil Petrokemi AB) v. Stargas Ltd (The Berge Sisar), [2002] A.C. 60, 219 Boston Fruit Co. v. British and Foreign Marine Insurance, (1905–6) 11 Com. Cas. 196, 113 Boucas v. Cooke, [1903] 2 K.B. 227, 124–5 Brandt v. Liverpool Brazil v. River Plate Steam Navigation Co., [1924] 1 K.B. 575, 249 Brightman and Co. v. Bunge y Born Limitada Socieded, [1934] 2 K.B. 619, 275 British & Beningtons Ltd v. North West Cachar Tea Co. Ltd, (1922) 10 Lloyd’s Law Rep. 381; [1923] A.C. 48 (H.L.), 250 British Marine Mutual v. Draffen; International Mutual Underwriters v. Draffen, The Times, 8 July 1903, 112 Broad v. Pryce, The Times, 26 June 1892, 97 Brocklebank (T.J.) v. King, [1925] 1 K.B. 52, 248 Brooker, re, The Times, 27 July 1916; 28 July 1916, 174 Bulman & Dickson v. Fenwick & Co., [1894] 1 Q.B. 179, 100 Burnand, in re, [1904] 2 K.B. 68, 112 Butcher Wetherly & Co. Ltd v. Norman, [1934] 1 K.B. 475, 100 C.B.S. Songs Ltd v. Amstrad Consumer Electronics Plc, [1988] A.C. 1013, 127 Calgarth, The, [1927] P. 93, 252 Cammell Laird & Co. v. Manganese Bronze and Brass Co. Ltd, [1933] 1 K.B. 141; [1934] A.C. 402 (H.L.), 311–12 Cantiere Meccanico Brindisino v. Janson and Others, [1912] 2 K.B. 112; [1912] 3 K.B. 452, 161–2 Cardew v. Lotinga, The Times, 13 July 1913, 174 Castle Mail Packet v. East and West India Docks, The Times, 14 January 1891, 99 Central Control Board (Liquor Traffic) v. Cannon Brewery, [1919] A.C. 744, 212

xiv

table of cases

Chells Farm case see Hunter v. Commissioners of Inland Revenue Chester v. Bateson, [1920] 1 K.B. 829, 214 China Navigation Co. v. Attorney General, [1932] 2 K.B. 197, 310 Clan Line Steamers Ltd v. Board of Trade, [1928] 2 K.B. 557, 248, 253 Clayton v. Le Roy, [1911] 2 K.B. 1031, 162 Colquhoun v. Brooks, The Times, 30 April 1888; (1888) L.R. 21 Q.B.D. 52; (1889) 19 App. Cas. 493 (H.L.), 97 Commissioners of Inland Revenue v. Duke of Devonshire, [1914] 2 K.B. 627, 168–9 Commissioners of Inland Revenue v. Hallyar, [1914] 1 K.B. 528, 174 Commissioners of Inland Revenue v. Southend-on-Sea Estates Co. Ltd, [1914] 1 K.B. 515; [1915] A.C. 428 (H.L.), 169, 174 La Cie des Chemins de Fer de Paris à Lyons et à la Méditerranée v. Great Western Railway Co., (1925) 22 Lloyd’s Law Rep. 101, 216–17 Conservators of Mitcham Common v. Cox, [1911] 2 K.B. 854, 176 Continental Contractors Ltd and Others v. Medway Oil & Storage Co. Ltd, (1925) 23 Lloyd’s Law Rep. 124, 275 Continental Tyre and Rubber Co. (Great Britain) Ltd v. Daimler Co. Ltd, [1915] 1 K.B. 893; [1916] 2 A.C. 307 (H.L.), 187 Continho Caro & Co. v. Vermont & Co., [1917] 2 K.B. 587, 187 Cooke, in re, (1876–7) L.R. 4 Ch. D. 555, 252 Cornish v. Thornett & Fehr, (1929) 33 Lloyd’s Law Rep. 241, 302–3 Cory & Son Ltd v. France, Fenwick & Co. Ltd, [1911] 1 K.B. 114, 151 Cowan v. The Era, The Times, 14 January 1911, 174 Cox v. Hakes, (1890) 15 App. Cas. 503, 245 Curtis v. Head, The Times, 27 July 1901, 112 Czarnikow Ltd v. Roth, Schmidt & Co., [1922] 2 K.B. 478, 252, 292 Davis v. Benjamin, [1906] 2 Ch. 491, 125 De Andia Yrarrazaval v. Willans and Redesdale, The Times, 31 July 1929, 104 Deighton v. Cockle, [1912] 1 K.B. 26, 174 Denholm (J. & J.) Ltd v. Shipping Controller, (1921) 7 Lloyd’s Law Rep. 66, 215, 221 Deyes v. Wood, [1911] 1 K.B. 806, 160 Diamond Alkali Export Corporation, [1921] 3 K.B. 443, 269–70 Dieckmann, in re, [1918] 1 Ch. 331, 187 Dillon v. Charing Cross Cinematographic Theatre, The Times, 15 April 1915, 174 Distington Haematite Iron Co. v. Possehl & Co., [1916] 1 K.B. 811, 188 Doleman & Sons v. Ossett Corporation, [1912] 3 K.B. 257, 174 Donald H. Scott Ltd v. Barclays Bank Ltd, [1923] 2 K.B. 1, 270 Donoghue v. Stevenson, [1932] A.C. 562, 220, 223–45, 312 Driefontein Consolidated Mines v. Janson Insurance, (1899–1900) 5 Com. Cas. 296; (1900–1) 6 Com. Cas. 198; (1901–2) 7 Com. Cas. 268, 112 Duke of Argyll v. Commissioners of Inland Revenue, (1913) 109 L.T. 893, 168 East and West India Dock v. Anderson and Anderson, The Times, 1 May 1890, 99

table of cases

xv

Ellerman Lines Ltd v. Read, [1928] 2 K.B. 144, 253 Elliott v. Shipping Controller, [1922] 1 K.B.127, 251 Embiricos v. Sydney Reid, [1914] 3 K.B. 45, 161, 192, 268 English Hop Growers Ltd v. Dering, [1928] 2 K.B. 174, 300 Epsom Grand Stand Association (Ltd) v. E.J. Clarke, The Times, 27 May 1919, 219 Ernest Beck & Co. v. K. Szymanowski & Co., [1923] 1 K.B. 457, 285 Everett v. Griffiths Lewis, [1920] 3 K.B. 163; [1921] 1 A.C. 631 (H.L.), 223 Exchange Telegraph v. Gregory, [1896] 1 Q.B. 147, 128 Fagernes, The, [1927] P. 311, 249 Farmer & Co. Ltd v. Inland Revenue Commissioners, [1898] 2 Q.B. 141, 97 Farr v. Butters Brothers, [1932] 2 K.B. 606, 224, 312 Farrer v. St Catherine’s College, The Times, 22 April 1873, 120 Field v. John Bull, The Times, 14 June 1914, 174 Fisher, Reeves & Co. Ltd v. Armour Ltd, [1920] 3 K.B. 614, 274 Foley v. Classique Coaches, [1934] 2 K.B. 1, 282 Folkes v. King, [1923] 1 K.B. 282, 289 Forbes v. Samuel, [1913] 3 K.B. 706, 160 Fordree v. Barrell, [1931] 2 K.B. 257, 313 Francis, ex parte, [1903] 1 K.B. 275, 134 Francis v. Fisher, The Times, 21 May 1903; (1903) 67 J.P. 301, 134 Francis, Times & Co. v. Sea Insurance, The Times, 30 June 1898, 115 Fry v. Smellie, [1912] 3 K.B. 282, 174 Fuller v. Blackpool Winter Gardens and Pavilion, [1895] 2 Q.B. 429, 125 Gayer v. Gayer, The Times, 30 January 1917, 200 General Hydraulic Power Co. Ltd v. Hancock, [1914] 2 K.B. 1, 163 George v. Thomas, [1910] 2 K.B. 951, 154 Getz v. Heath, The Times, 18 February 1905, 112 Glasgow Assurance Corporation v. William Symondson, (1910–11) 16 Com. Cas. 109, 161 Goater v. Godfrey, The Times, 13 August 1890 and 10 April 1891, 97 Goerz & Co. v. Bell, [1904] 2 K.B. 136, 97 Goldman v. Hargave, [1967] 1 A.C. 645 (H.L.), 251 Gordon Alison & Co. v. Wallsend Slipway & Engineering Co., (1927) 27 Lloyd’s Law Rep. 285, 274 Gosse Millard v. Canadian Government Merchant Marine, [1928] 1 K.B. 717, 312 Great Peace Shipping Ltd v. Tsavliris Salvage (International) Ltd, [2003] Q.B. 679, 311 Guaranty Trust Co. of New York v. Hannay, [1918] 2 K.B. 623, 201 Hambro v. Burnand, (1902–3) 8 Com. Cas. 252; (1903–4) 9 Com. Cas. 251, 112 Hamilton v. Pandorf, (1887) L.R. 12 App. Cas. 518 (H.L.), 99 Hanfstaengl Art Publishing Co. v. Holloway, [1893] 2 Q.B. 1, 125 Hanfstaengl v. Empire Palace, [1894] 3 Ch. 109; [1895] A.C. 20 (H.L.), 125 Hanfstaengl v. H.R. Baines, [1894] 2 Ch. 1, 125 Hardie & Lane v. Chilton, [1928] 2 K.B. 306, 300, 314

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table of cases

Harnett v. Bond, The Times, 17 May 1924; [1924] 2 K.B. 517; [1925] A.C. 669 (H.L.), 222–4, 306 Harris v. Harrison, (1914) 111 L.T. 534, 177 Haskins v. Lewis, [1932] 2 K.B. 1, 313 Henderson v. Underwriting and Agency Association, [1891] 1 Q.B. 557, 100 Hilckes, in re, [1917] 1 K.B. 48, 190 Hill v. Aldershot Corporation, [1933] 1 K.B. 259, 292, 313 Hillas v. Arcos, (1931) 40 Lloyd’s Law Rep. 307, 271, 281–2, 286 Hillen v. ICI (Alkali) Ltd, [1934] 1 K.B. 455, 309 Hirachand Punamchand v. Temple, [1911] 2 K.B. 330, 174 Hobbs v. C.T. Tinling, [1929] 2 K.B. 1, 253, 300–1 Holt v. Markham, [1923] 1 K.B. 504, 251 Homburg Houtimport BV and Others v. Agrosin Private Ltd and Another, [2003] U.K. H.L. 12; [2004] 1 A.C. 715, 251 Homing Pigeon Publishing Co. v. The Racing Pigeon Publishing Co., The Times, 20 March 1913, 174 Horwood v. Millar’s Timber and Trading Co. Ltd, [1917] 1 K.B. 305, 201 Howsin (Hilda Margaret), ex parte, (1917) 33 T.L.R. 527, 209 Hudson v. British and Foreign Marine Insurance, (1902–3) 8 Com. Cas. 6, 113 Hughes v. Liverpool Victoria Legal Friendly Society, [1916] 2 K.B. 482, 174 Humber Conservancy Board v. Bater, [1914] 3 K.B. 449, 163 Humphreys v. D.C. Thomson & Co., The Times, 29 April 1908, 137 Hunt v. Richardson, [1916] 1 K.B. 446, 172 Hunter v. Commissioners of Inland Revenue, The Times, 21 and 29 May 1913, 166–8 Hussey v. Harmsworth, The Times, 29 March 1900, 125 Imperial Cold Storage and Supply Co. Ltd v. King, The Times, 2–4, 9–12 and 16 November 1909, 112 Ingram & Royles Ltd v. Services Maritimes du Treport, [1913] 1 K.B. 538, 160, 174 Institute of Patent Agents v. Lockwood, [1894] A.C. 347 (H.L.), 240 Ireland v. Livingstone, (1872) L.R. 5 H.L. 395, 269–70 James Finlay and Co. Ltd v. N.V. Kwik Hoo Tong Handel Maatschappij, [1929] 1 K.B. 400, 289 James Nisbet v. The Golf Agency, The Times, 15 May 1907, 128 Jay v. New Bedford Palace of Varieties, The Times, 30 June 1910, 178 Jebara v. Ottoman Bank, [1927] 2 K.B. 254, 302 Job Edwards Ltd v. Birmingham Canal Navigation, [1924] 1 K.B. 341, 68, 251 Jones v. Consolidated Anthracite Collieries Ltd, [1916] 1 K.B. 123, 169 Joseph Green v. Arcos Ltd, (1931) 39 Lloyd’s Law Rep. 229, 285, 287 Jowitt & Sons v. Union Cold Storage, [1913] 3 K.B. 1, 267 Jude’s Musical Compositions, re, [1906] 2 Ch. 595; [1907] 1 Ch. 651, 125 Kano v. Pathé Frères, (1899) 99 L.T. 114; (1900) 100 L.T. 260, 127 Kelly’s Directory v. Gavin and Lloyd’s, [1901] Ch. 374; [1902] 1 Ch. 631, 128

table of cases

xvii

Kempler v. Bravingtons Ltd, (1925) 33 L.T. 680, 290 Kemshead v. British Transport Commission, [1958] 1 W.L.R. 173, 319 King v. Commissioners of Income Tax, The Times, 23 May 1903, 97 Knight v. Bolton, [1924] N.Z.L.R. 806, 68 Knights Deep Ltd v. Inland Revenue Commissioners, [1900] 1 Q.B. 217, 97 Landauer v. Craven and Speeding, [1914] 2 K.B. 94, 161 Larrinaga & Co. Ltd v. Société Franco-Américaine des Phosphates de Medulla, (1922) 11 Lloyd’s Law Rep. 214; (1923) 14 Lloyd’s Law Rep. 457 (H.L.), 250 Latham v. R. Johnson Nephew Ltd, [1913] 1 K.B. 398, 174 Lauri v. Renad, [1892] 3 Ch. 402, 127 Lawrence & Bullen Ltd v. Aflalo, [1902] 1 Ch. 264 (Ch. D.); [1903] 1 Ch. 318; [1904] A.C. 17 (H.L.), 127 Lazard Brothers & Co. v. Banque Industrielle de Moscou, [1932] 1 K.B. 617; [1933] A.C. 289 (H.L.), 236 Lazard Brothers v. Midland Bank, [1932] 1 K.B. 617, 314 Lazarus v. Cairn Line of Steamships Ltd, (1911–12) 17 Com. Cas. 107, 161 Leakey v. National Trust, [1980] Q.B. 485, 251 Leitrim, The, [1902] P. 256, 113 Lek v. Mathews, (1926) 25 Lloyd’s Law Rep. 525, 222–3 Lens v. Devonshire Club, Eastbourne (Ltd), The Times, 3 December 1914, 177 L’Estrange v. F. Graucob Ltd, [1934] 2 K.B. 394, 276–8, 313 Levy v. Cohen, Sons & Co. Ltd, (1932) 44 Lloyd’s Law Rep. 5, 285–6 Liddle v. Yorkshire (North Riding) County Council, [1934] 2 K.B. 101, 314 Liebigs Extract of Meat Co. Ltd v. Mersey Docks and Harbour Board and Walter Nelson & Son Ltd, [1918] 2 K.B. 381, 302 Limerick v. Stott, [1921] 2 K.B. 613, 221 Liversidge v. Anderson, [1942] A.C. 206 (H.L.), 248 Lloyd v. Cook, [1929] 1 K.B. 103, 313 Lloyd v. Grace Smith, [1911] 2 K.B. 489; [1912] A.C. 716 (H.L.), 162 Lloyd’s Bank Ltd v. Chartered Bank of India, [1929] 1 K.B. 40, 310 Lloyd’s Chartered Bank of India, Australia and China, [1929] 1 K.B. 40, 291 Lobitos Oilfields Ltd v. Admiralty Commissioners; Crown Steamship Co. v. Admiralty Commissioners, (1917) L.J.K.B. (N.S.) 1444, 213–14 London Association of Shipowners v. London and India Joint Docks Committee, [1892] 3 Ch. 242, 100 London County Council v. Allen, [1914] 3 K.B. 642, 160 London Jewellers Ltd v. Attenborough, [1934] 2 K.B. 206, 290 Lumsden v. Commissioners of Inland Revenue, [1914] A.C. 77 (H.L.), 165 Mabe v. Connor, [1909] 1 K.B. 515, 126 Malmberg v. Evans, (1924) 20 Lloyd’s Law Rep. 40, 270–1 Manchester Ship Canal Co. v. Brunner, Mond & Co. Ltd see Attorney-General v. Manchester Ship Canal Co.

xviii

table of cases

Maples v. Commissioners of Inland Revenue, [1914] 3 K.B. 303, 163 Marshal Shipping Co. Ltd v. Board of Trade, [1923] 2 K.B. 343, 247 Marten v. Whale, [1917] 2 K.B. 480, 290 Martial and Armand Ltd v. Frankau and Wife, The Times, 21 November 1931, 304 Mathie v. Argonaut Marine Insurance Co. Ltd, (1924) 19 Lloyd’s Law Rep. 64, 222 Maxwell v. Grunhut, (1914) 31 T.L.R. 79, 189 May & Butcher v. R., [1934] 2 K.B. 17, 280–2 Melanie, The, [1922] P. 243, 221 Mersey Shipping & Transport Co. v. Rea, (1925) 21 Lloyd’s Law Rep. 375, 250 Metropolitan Railways Co. v. Fowler, [1892] 1 Q.B. 165; [1893] A.C. 416 (H.L.), 97 Metropolitan Water Board v. Dick Kerr, [1917] 2 K.B. 1; [1918] A.C. 119 (H.L.), 191 Meyer Ltd v. Kivisto, (1929) 35 Lloyd’s Law Rep. 265, 285–6 Meyer Ltd v. Osakeyhito Carelia Timber Co., (1930) 37 Lloyd’s Law Rep. 212, 285–7 Mitchell & Co. v. Dewar & Co., The Times, 28 March 1896, 125 Moffatt Paige Ltd v. Gill & Sons, The Times, 2 April 1901; (1901) 84 L.T. 452; (1902) 86 L.T. 465, 124 Moody v. Cox, [1917] 2 Ch. 71, 252 Morgan v. Hart, [1914] 2 K.B. 183, 174 Morocco Bound Syndicate v. Harris Chamberlain, The Times, 23 February 1895, 115 Moul v. Greenings, [1891] 2 Q.B. 443, 124 Musmann v. Engelke, [1928] 1 K.B. 90; [1928] A.C. 433 (H.L.), 249 Naumann (W.) v. Edward Nathan & Co. Ltd, (1930) 37 Lloyd’s Law Rep. 249, 252 Nelson v. James Nelson & Sons, [1913] 2 K.B. 471, 169 Newcastle Breweries Ltd v. The King, [1920] 1 K.B. 854, 212 Newmark v. National Phonograph Co., (1907) 23 T.L.R. 439, 126–7 Niblett v. Confectioners Materials, [1921] 3 K.B. 387, 221 Nigel Gold Mining v. Hoade Insurance, (1900–1) 6 Com. Cas. 268, 112 North-Western Salt v. Elektrolytic Alkali Co., [1913] 3 K.B. 422; [1914] A.C. 461, 174 Norton Malreward case see Smyth v. Commissioners of Inland Revenue Ocean Coal v. Davies, [1927] A.C. 271, 221 Owners of Wild Rose v. Owners of Courier, 7 November 1891, 93 Palmer v. Effingham Wilson, The Times, 5 March 1898, 127 Parker v. Brand, The Times, 23 April 1891, 97 Paterson Zochonis Ltd v. Elder Dempster, [1923] 1 K.B. 420; [1924] A.C. 522 (H.L.), 250 Peech v. Best, [1931] 1 K.B. 1, 313 Perez v. John Mercer, (1921) 7 Lloyd’s Law Rep. 1, 252 Petition of Right, in the matter of a, [1915] 3 K.B. 649, 212 Petrel, The, [1893] P. 320, 100 Phoenix Insurance Co. v. De Monchy, (1928) 34 Lloyd’s Law Rep. 194, 291 Pioneer Container, The, [1994] 2 A.C. 324, 250 Pitts, Pitts v. George & Co., [1896] 2 Ch. 866, 125 Place v. Searle, [1932] 2 K.B. 497, 304, 306

table of cases

xix

Polemis, re, [1921] 3 K.B. 560, 254 Porter v. Freudenberg, [1915] 1 K.B. 857, 186 Porto Alexandre, The, [1920] P. 30, 234 Prager v. Blatspiel, [1924] 1 K.B. 566, 302 Princess Paley Olga v. Weisz, [1929] 1 K.B. 718, 234, 314 Pritchard v. Health and Strength Ltd, The Times, 16 December 1910, 174 Proctor, Garrett, Marston Ltd v. Oakwin Steamship Co., (1925) 23 Lloyd’s Law Rep. 222, 267 Produce Brokers Co. Ltd v. Furness Withy & Co., (1911–12) 17 Com. Cas. 165, 201, 267 Produce Brokers Co. Ltd v. Olympia Oil and Cake Co. Ltd, [1917] 1 K.B. 320, 274 Property Insurance Co. v. National Protector Insurance Co., (1912–13) 18 Com. Cas. 119, 268 R. (on the application of Husain) v. Asylum Support Adjudicator, [2001] EWHC Admin 852; [2002] A.C.D. 10, 219 R. v. Ball (William Henry), (1910) 5 Cr. App. Rep. 238; [1911] A.C. 47 (H.L.), 155 R. v. Bennett, (1911) 6 Cr. App. Rep. 203, 157 R. v. Bird ex parte Needles, [1898] 2 Q.B. 340, 98 R. v. Blake, (1910) 4 Cr. App. Rep. 275, 151 R. v. Bradley, (1910) 4 Cr. App. Rep. 225, 151–2, 155 R. v. Brownhill (Archibald), (1913) 8 Cr. App. Rep. 258, 156 R. v. Buckland, [1933] 1 K.B. 767, 307 R. v. Casement, [1917] 1 K.B. 98; (1917) 12 Cr. App. Rep. 125, 205 R. v. Chetwynd (George Rowland), The Times, 4 November 1912, 157 R. v. Conlon (Harry), (1911) 6 Cr. App. Rep. 289, 158 R. v. Connor, (1913) 8 Cr. App. Rep. 152, 155, 157 R. v. Council of Metropolitan Borough of Poplar (No. 1) ex parte London County Council, [1922] 1 K.B. 72, 228 R. v. Denison ex parte Nagle, (1916) L.J.K.B. (N.S.) 1744, 206 R. v. Denyer, [1926] 2 K.B. 258; The Times, 24 April 1928, 300 R. v. Governor of Brixton Prison ex parte Chateau Thierry, [1917] 1 K.B. 922, 211 R. v. Governor of Brixton Prison ex parte Soblen (No. 1), [1963] 1 Q.B. 829, 212 R. v. Governor of Brixton Prison ex parte Soblen (No. 2), [1963] 2 Q.B. 243, 212 R. v. Halliday ex parte Zadig, [1917] A.C. 260 (H.L.), 207 R. v. Inspector of Cannon Row Police Station ex parte Brady, (1921) 125 L.T. 344; (1921) 37 T.L.R. 75, 237 R. v. Minister of Health ex parte Yaffe, [1931] A.C. 494 (H.L.), 240 R. v. Norton, (1910) 5 Cr. App. Rep. 7 (1910) 5 Cr. App. Rep. 65; [1910] 2 K.B. 496, 151, 155 R. v. Rhodes, (1910) 5 Cr. App. Rep. 35, 151 R. v. Roberts ex parte Scurr and Others see Roberts v. Hopwood R. v. Smith (George Joseph), (1916) 11 Cr. App. Rep. 229, 191 R. v. Superintendent of Chiswick Police Station ex parte Sacksteder, [1918] 1 K.B. 578, 210–11

xx

table of cases

R. v. Thomas (Frederick Henry), (1912) 7 Cr. App. Rep. 36, 155, 157 Ralli Brothers v. Compania Naviera Sotar y Aznar, [1920] 2 K.B. 287, 250 Reckitt v. Barnett, Pembroke and Slater Ltd, [1928] 2 K.B. 244; [1929] A.C. 176 (H.L.), 290 Rederi Aktiebolaget Aeolus v. W.N. Hillas, (1925) 23 Lloyd’s Law Rep. 90, 253 Reid v. British and Irish Steam Packet Co. Ltd, The Times, 4 February 1921, 226 Reigate v. Union Manufacturing (Ramsbottom) Ltd, [1918] 1 K.B. 592, 250 Reversion Fund and Insurance Co. v. Maison Cosway Ltd, [1913] 1 K.B. 364, 174 Rio Tinto Co. Ltd v. Ertel Bieber, (1916) L.T. 810; (1917) 116 L.T. 810; (1917) 33 T.L.R. 437; [1918] A.C. 260, 188–9 Roberts v. Cunningham, (1925) 40 T.L.R. 769; The Times, 8 December 1925; (1925) 42 T.L.R. 162 (H.L.), 231 Roberts v. Hopwood, [1924] 2 K.B. 695; (1925) 40 T.L.R. 769; [1925] A.C. 578 (H.L.), 227, 230–1, 233 Robinson Gold Mining v. Alliance Marine and General Insurance, (1903–4) 9 Com. Cas. 301, 112 Robinson v. The King, [1921] 3 K.B. 183, 221 Roe v. Russell, [1928] 2 K.B. 117, 313 Ronnfeldt v. Phillips, (1918) 34 T.L.R. 553; (1918) W.N. 328, 210 Rose & Frank & Co. v. Crompton & Bros. Ltd v. Brittains Ltd, (1923) 14 Lloyd’s Law Rep. 519, 216, 282–3 Rose v. Bank of Australasia, [1894] A.C. 687 (H.L.), 101 Rose v. Crompton, [1923] 2 K.B. 261, 252 Rowland v. Divall, [1923] 2 K.B. 500, 250 Rumley v. Winn, (1889) L.R. 22 Q.B.D. 265, 96 Russian Commercial & Industrial Bank v. Le Comptoir d’Escompte de Mulhouse, [1923] 2 K.B. 630; [1925] A.C. 112 (H.L.), 235–6 Scott v. Barclays Bank, (1923) 14 Lloyd’s Law Rep. 142, 271 Scruttons Ltd v. Midland Silicones Ltd, [1962] A.C. 446 (H.L.), 18 Sea Insurance Co. v. Rossia Insurance Co. of Petrograd, (1924) 20 Lloyd’s Law Rep. 308, 236 Secretary of State for Home Affairs v. O’Brien, [1923] 2 K.B. 361; [1923] A.C. 608 (H.L.), 242–5 Sedleigh-Denfield v. O’Callaghan, [1940] A.C. 880 (H.L.), 251 Sharp Brothers & Knight v. Chant, [1917] 1 K.B. 771, 206 Sheppard v. Glossop Corporation, [1921] 3 K.B. 132, 224 Sleigh v. Tyser Insurance, (1899–1900) 5 Com. Cas. 271, 112 Smith v. Incorporated Council of Law Reporting for England and Wales, [1914] 3 K.B. 674, 163 Smith v. Smith, [1923] P. 191, 253 Smyth v. Commissioners of Inland Revenue, The Times, 16, 18, 27–8 May, 3 July 1913, 166–8

table of cases

xxi

Société d’Avances Commerciales v. Merchants Marine Insurance Co., (1924) 20 Lloyd’s Law Rep. 140, 223 South African Reserve Bank v. Samuel & Co., (1931) 40 Lloyd’s Law Rep. 291, 273 Southern Foundries, (1926) Ltd v. Shirlaw, [1939] 2 K.B. 406, 250 Starsin, see The Homburg Houtimport BV and Others v. Agrosin Private Ltd and Another Steedman v. Hakim, (1889) L.R. 22 Q.B.D. 16, 96 Stevens v. Bromley, [1919] 2 K.B. 722, 250 Stopes v. Sutherland, The Times, 26 and 27 June and 21 July 1923, 305 Sueter v. Willis, The Times, 27 March 1914, 174 Svensden v. Wallace, (1884) 13 Q.B.D. 69, 312 Tamplin (F.A.) v. Anglo-Mexican Petroleum, [1916] A.C. 397, 191 Thomas v. Bradbury Agnew & Co., [1906] 2 K.B. 607, 98 Thomas v. Jones, [1921] 1 K.B. 22, 222 Thorne v. Motor Trade Association, [1937] A.C. 797 (H.L.), 300 Tingley v. Muller, (1917) 33 T.L.R. 166; [1917] 2 Ch. 144, 189 Tolley v. Fry, [1931] A.C. 333 (H.L.), 177 Underground Electric Railways Co. of London Ltd and Glynn Mills Currie & Co. v. Commissioners of Inland Revenue, [1914] 1 K.B. 210, 163 Universal Steam Navigation v. James McKelvie, [1922] 1 K.B. 518; [1923] A.C. 492 (H.L.), 250–1 Van Nievelt Goudriaan Stoomvaart Maatschappij v. C.A. Forslind & Son, Ltd, (1925) 22 Lloyd’s Law Rep. 49, 216 Varing, The, [1931] P. 79, 275–6 Velaquez v. Commissioners of Inland Revenue, [1914] 2 K.B. 404, 160, 163 Verren v. Anglo-Dutch Brick Co. (1927) Ltd, (1929) 34 Lloyd’s Law Rep. 211, 310 Village Main Reef Gold Mining v. Stearns, (1899–1900) 5 Com. Cas. 246; (1904–5) 10 Com. Cas. 8, 112 Vizetelly v. Music Select Library, [1900] 2 Q.B. 170, 98 W.T. Lamb and Sons v. Goring Brick Co. Ltd, [1932] 1 K.B. 710, 282 Wadsworth Lighterage & Coaling Co. Ltd v. Sea Insurance Co. Ltd, (1929) 34 Lloyd’s Law Rep. 285, 316 Wallis, Son & Wells v. Pratt & Haynes, [1911] 3 A.C. 394, 277 Walter v. Lane, The Times, 15 July 1899; [1899] 2 Ch. 749; [1900] A.C. 539 (H.L.), 115, 128–9 Ware and De Freville Ltd v. Motor Trade Association, [1921] 3 K.B. 40, 251, 299–300, 314 Waterhouse & Co. v. Gilbert, (1884–5) L.R. 15 Q.B.D. 569, 96 Webster v. Terry, [1914] 1 K.B. 51, 161 Weiss & Co. v. Produce Brokers Co., (1921) 7 Lloyd’s Law Rep. 211, 267–8 Weldon v. Riviere, The Times, 16 November 1888, 97 Whitney v. People of State of California 274 U.S. 357, (1927), 314

xxii

table of cases

Wigzell, in re, [1921] 2 K.B. 835, 252 Wilkes v. Spooner, [1911] 2 K.B. 473, 174 William Hansen v. Gabriel, Wade & English Ltd, (1924) 17 Lloyd’s Law Rep. 245, 215 Willis Faber & Co. v. Joyce, (1910–11) 16 Com. Cas. 190, 267 Wilson Holgate v. Belgian Grain Co., [1920] 2 K.B. 1, 269 Wilson v. Lloyd, The Times, 18 May 1892, 97 Wooderson v. Raphael Tuck, The Times, 12 November 1887, 125 Working Harbour and Dock Board v. Trade Indemnity, (1934) 49 Lloyd’s Law Rep. 430, 317 Woyka & Co. v. London & Northern Trading Co., (1922) 10 Lloyd’s Law Rep. 110, 224 Xantho, The, (1887) L.R. 12 App. Cas. 503 (H.L.), 99 Yangtze v. Indemnity Marine Mutual Insurance, (1907–8) 13 Com. Cas. 283, 112 Zinc Corporation v. Hirsch & Sons Ltd, [1916] 1 K.B. 541, 188

1 Antecedents

1.1

The Scruttons

Biographical sketches of T.E. Scrutton usually refer to him as the son of a “prosperous shipowner”.1 It has always seemed fitting that England’s greatest shipping lawyer should himself be the scion of a shipping family, but the professional and personal achievements of Scrutton’s forebears extended far beyond the operation of a successful shipping line.2 Although it would have been a matter of indifference to him, T.E.’s origins can be traced with some certainty back to Robert Scrutton of Ipswich, a tailor.3 Robert of Ipswich’s two sons, Robert and James, came to London, and James was apprenticed to a Henry ffrome, a stationer, for seven years from 1 July 1783, becoming a freeman through the Stationers’ Company in September 1790.4 By 1801, James had been admitted as a “sworn” or licensed broker by the Alderman’s Court of the City of London,5 with “Richard Carter, Citizen & Apothecary” as his surety, his address given as 18 Robinson’s Road, Kingsland.6 In 1802 he joined the firm of Ellis, Scrutton & Co. stockbrokers. 1

2

3

4

5 6

See e.g. Oxford Dictionary of National Biography entry by F.D. Mackinnon, revised by Hugh Mooney (2004). This account is principally drawn from the following sources: “A brief summary of the history of Scrutton, Sons & Co.” by Mr M.C. Halliday, contained in the Scrutton Family Papers (“Halliday”); The Scruttons: A Summary of Family History (1966) by Janet Scrutton (Scrutton’s daughter) and Ronald Lidstone (“Family History”); Mary Midgley, The Owl of Minerva (2005), Chapter 2; and A.E. Jeffrey, The History of Scruttons: Shipbrokers and Shipowners, 1802–1926 and Stevedores, Master Porters and Cargo Superintendents, 1890– 1967 (“Jeffrey”) (1970). Halliday and Jeffrey were both former senior executives in Scruttons Ltd. LMA COL/CHD/FR/02/1127, admission of James Scrutton to Freedom of the City of London. Family History traces them back further, with somewhat less certainty, to 1494. James Scrutton became a liveryman on 2 April 1811: Archives of the Worshipful Company of Stationers and Newspaper Makers. See LMA Information Leaflet No 15, “Sworn Brokers’ Archives”. See LMA/COL/BR/02/6215.

1

2

antecedents

In 1793, James married Susannah Urquhart, daughter of Alexander Urquhart, who had interests in shipping and shipbroking and was involved in trade to the British West Indies. In 1802, Alexander’s son Thomas founded the firm of Urquhart and Hope with John Hope, a firm of ship and insurance brokers and merchants on commission which traded from 19 Finch Lane, Cornhill. Hope and Urquhart subscribed the original capital of £1,000 in equal shares, but James Scrutton made a significant contribution.7 With these funds, the firm purchased “a desk, two stools, two chairs, a bookcase, a washhand basin with jug, scrubbing brushes and flannel, a knife, a decanter with tumbler and 300 printed cards” – and were ready for business. Their first ship out was the Adelphi, which sailed in October 1802. In July 1803, the firm moved to 7 St Michael’s Alley, and Urquhart and Hope became underwriting members of the Lloyd’s insurance market. By 1813, they had interests in eight ships, all employed on the West Indies trade, carrying molasses, sugar, rum and, on at least some occasions, slaves on the homeward trip.8

1.2 Thomas Scrutton: “Thomas the elder” James Scrutton’s third son was Thomas Scrutton (“Thomas the elder”), born in 1797 in Ratcliffe.9 When he was seven, Thomas the elder’s father was killed in a riding accident. With Alexander Urquhart’s support, Thomas the elder was placed in Christ’s Hospital School in 1806, and remained there until he was fourteen years old. The fact that he obtained a place at Christ’s Hospital is itself some evidence of the straitened position in which James’s death had left the family: it was a rule of the school that “no child will be admitted whose parents or next friends are not, in the opinion, of the Council of Almoners, in need of assistance towards his education and maintenance”.10 However, Thomas the elder was not devoid of useful connections: the school was open to the children of freemen of the City, its costs met by benefactors, many of them 7

8

9

10

£400 of Hope’s share and £100 of Urquhart’s. £1,000 would be worth about £32,000 in 2012: National Archives currency converter. Jeffrey records insurance for a cargo of slaves in the firm’s archives. See also Roderick Braithwaite, “Strikingly Alive”: The History of the Mill Hill School Foundation 1807–2006 (2006) (“Braithwaite”), p. 87: “a line with its roots in slaving”. LMA COL/CHD/FR/02/1504. He was admitted to the Freedom of the City of London by patrimony through the Stationers’ Company in April 1824. G.A.T. Allan, Christ’s Hospital (1984), p. 10.

1.2 thomas scrutton: “thomas the elder”

3

aldermen or liverymen to whom the Scruttons and the Urquharts would have been well known. An early beneficiary of the charity of others, Thomas the elder,11 and in particular his son Thomas Urquhart Scrutton, were to repay that debt many times over. Thomas the elder joined the partnership of Urquhart and Hope (now Urquhart, Hope and Scrutton) in 1825, becoming an underwriting member of Lloyd’s the same year. He was also admitted as a “sworn broker”, with James and Francis Urquhart as his sureties.12 The partnership became Urquhart and Scrutton on John Hope’s retirement the following year.13 This was not a propitious time to enter the partnership – the falling price of sugar led the firm to reduce the size of their fleet, and for ten years from 1832 the firm had no ships at all. Thomas the elder became the sole owner of Urquhart and Scrutton in 1840, at which point the firm was operating as ship- and insurance brokers, but still with no ships of its own.14 He was soon to change this state of affairs. The firm bought the brig Queen of Britain in 1843, to be joined by a second ship, the barque Paragon, in 1853. By this time, the firm was operating from premises at 3 Corbet Court, Gracechurch Street.15 Despite his Church of England education at Christ’s Hospital, Thomas the elder became “a very active member of the Congregationalist Church”. The Congregationalist Church was one of the Nonconformist churches which emerged from the tradition of Puritan dissent in England: a tradition which was anti-episcopal and scripture-centric, with individual churches enjoying considerable autonomy.16 The non-denominational churches had been the object of much oppressive legislation in the period from the Restoration to the Glorious Revolution: for much of that period, all forms of Nonconformist worship had been illegal. A gradual extension of tolerance followed, particularly under the Hanoverians, but the Test Act continued to disqualify Nonconformists from all 11

12

13 14

15

16

It was said of Thomas the elder that he “lived in E[ast] London to help E[ast] London”: Ernest Hampden-Cook, The Register of Mill Hill School, 1807–1926 (1926) (“Hampden-Cook”), p. 70. His admission record gives his address as 7 St Michael’s Alley, Cornhill: see LMA/COL/ BR/ 02/6126. The Times, 3 May 1826. Post Office London Directory 1841, Parts 1 and, 2: entries for Thomas Scrutton and Urquhart and Scrutton. The address given in Thomas Urquhart Scrutton’s admission to Freedom of the City of London in October 1856: LMA/COL/CHD/FR/02/1894. See also Post Office London Directory (small edn) 1852, entry for Scrutton and Sons Shipbrokers. See generally R.W. Dale, The History of English Congregationalism (1907) (“Dale”).

4

antecedents

positions of public trust, and the Conformity Act excluded them from the universities of Oxford and Cambridge. The late eighteenth and early nineteenth centuries saw the evangelical revival: a significant increase in the number of those adhering to the various Nonconformist churches.17 The Protestant Society for Religious Liberty was formed in 1809 – with John Wilkes as one of its honorary secretaries – and it campaigned, with considerable success, for the repeal of the penal laws to which the Nonconformists were subject.18 For this new generation of Congregationalists, “The ideal Christian man was one who avoided ‘worldly’ amusements, and freely spent his time and strength in religious works.”19

1.3

Thomas Urquhart Scrutton: “Thomas the younger”

In October 1828, Thomas Urquhart Scrutton (“Thomas the younger”, T.E.’s father) was born. He was Thomas the elder’s second son and one of six children altogether.20 In 1807, the Protest Dissenters’ Grammar School was founded by a number of influential merchants to educate those “excluded from the Church of England by their conscientious convictions”. The school was to be a grammar school for the sons of Protestant Dissenters whose educational options were limited by the fact that “the other public schools were practically Church of England seminaries, to the exclusion of dissenters”.21 It was established in the country, at Mill Hill in Hendon, to avoid the “dangers, both physical and moral, awaiting youth while passing through the streets of a large, crowded, and corrupt city”.22 Half of the school’s initial intake came from business backgrounds, a third from professional backgrounds, and about a sixth from the retailer class.23 Thomas the younger was sent there in September 1840, one of an intake of ten boys, and he remained there until December 1842,24 although his connections with the school were to continue until his death 17 19 20

21

22

23

18 Dale, p. 573. The various reforming measures as set out in Dale, Book VI, Chapter 1. Dale, p. 592. The eldest son, Alexander Scrutton, was born in 1797. He became a stockbroker and did not join the family firm. Norman G.B. James, The History of Mill Hill School 1807–1907 (1909) (“James”), p. 5. See also “School of enlightenment”, Chapter 1 of Braithwaite. James, p. 17, quoting the committee formed in 1806 with a view to the establishment of the school. 24 Braithwaite, p. 45. Hampden-Cook, p. 70.

1.3 thomas urquhart scrutton: “thomas the younger”

5

in 1896. His brother Alexander followed as one of only four boys who started in March 1844, staying at the school until September 1849.25 The ethos of the school clearly had a significant effect on Thomas the younger. As he arrived, the school had narrowly escaped closure when one of its founders demanded repayment of his capital.26 However, he was there in the time of one of Mill Hill’s most successful headmasters – Thomas Priestley. A report to the governors of this period records “the sense of religious duty, the tone of morality, and the good order and discipline existing among the pupils”.27 A school prospectus notes that if the average occupation of a week’s school-time be taken at a maximum of forty-two hours, fifteen of them will be found appropriated to the languages of Greece and Rome, eight to Mathematics, three to Geography, three to Writing, five to the English language and history, five to French, two to German and one to a Biblical lecture.

Fitting those forty-two hours in required a full day: the boys rose at 5.30 in summer and six o’clock in winter, lessons continuing in the afternoon to 4.30 and 5.30 respectively, with an hour’s preparation after tea. Sunday comprised an hour and a half in chapel in the morning, exercises in the catechism in the afternoon and a short supervised walk “with work on the scriptures or other strictly permitted ‘Sunday reading’ up to and beyond Tea”.28 Described as “magnificently built and full of vitality”, Thomas the younger joined the family partnership in 1850, together with Samuel Linder, who was married to Thomas the elder’s daughter, Susannah. In consequence the partnership was renamed Scrutton, Son & Co. When Thomas the elder’s younger son, James, also joined the partnership in 1857, the firm added an “s”, becoming Scrutton, Sons & Co, and so it remained to its dissolution. It was only in 1854 that the firm expanded its shipping interests, adding a further eleven ships in the two years before T.E.’s birth, all taking advantage of improved trading conditions in the West Indies, and

25 26

27

Hampden-Cook, p. 81. The fortuitous onset of a sudden illness led him to reduce his demands on his deathbed. The founder in question was Mr Bacchus. This affair occurred shortly after the school had purchased an inn which adjoined its grounds, the events being the subject of some school light verse: “Twere well to confess the result of our sin, / Lest our Temperance friends should attack us. / For we no sooner purchased the ‘Three Hammers Inn’, / Than we nearly were ruined by Bacchus”. 28 James, p. 132. Braithwaite, p. 75.

6

antecedents

the improved price of sugar, molasses and rum, with occasional voyages to West Africa and South America. By 1861, Thomas the elder was living in 2 East India Road in Poplar – in “a large Georgian house, surrounded by large gardens and an orchard” – and Thomas the younger nearby in 11 East India Road, both giving their occupations in that year’s census as shipbrokers.29 The success of the firm enabled Thomas the elder to acquire a second home on the Isle of Wight called “Copsefield”. The firm continued to expand, with twenty ships by 1866, thirteen of them built for the firm, all of them sailing ships. A sailing ship could make only one round trip a year to the West Indies, and each arrival and departure must have been an occasion of note in the Scrutton household, as must the grounding of one of those ships, the Stirlingshire, off Ireland in 1865 with the loss of six crew.30 The rituals, rewards and risks of the maritime adventure would have been very familiar to the young T.E. In September 1854, Thomas the younger married Mary Hickman, daughter of a Norwich Congregational minister.31 The union was preceded by anxious correspondence on the part of Miss Hickman and her brother as to Thomas the younger’s intentions and the place which Miss Hickman would have in the wider Scrutton family’s affections.32 When Thomas the elder collapsed inspecting ships at the dock in 1867, Thomas the younger took over the firm. The family lore suggested of Thomas the younger that “he had made a considerable mess of the family finances”, and was “not a very careful businessman”,33 although it is not clear whether this criticism was justified. He moved the firm’s offices to Mincing Lane in 1871, and to 9 Gracechurch Street in 1873, at which point the firm reached a never-to-be-surpassed twenty-three ships. Two more Scruttons joined the partnership: James Scrutton, T.E.’s cousin, and Frederic, his brother, in 1877. The dominant question for the firm was whether to make the move from sail to steam, a transition which required enormous capital. All the sailing ships were gone by 1884, and over the

29 30

31 32

33

1861 Census returns. See reports in Lloyd’s List for 31 January and 1 February 1865, and The Times of 1 and 2 February 1865. The incident does not appear to have become part of the firm folklore, however. Halliday, writing in the 1960s, stated, “in the 82 years of the firm’s ownership of sailing vessels, only one was lost by marine peril, the barque ‘Saint Vincent’ [with] no casualties”. Norwich Register 1854, Vol. 4b, p. 271. Correspondence in family papers made available to me by Dr Mary Midgley, hereafter “Scrutton Papers”. Midgley, p. 44; Family History, p. 30.

1.3 thomas urquhart scrutton: “thomas the younger”

7

period from 1880 to 1884, the firm built or bought nine steamers. When, in the preface to the first edition of his work on charterparties,34 T.E. stated, The last twenty years have seen what almost amounts to a revolution in the shipping trade. Steamers have supplanted sailing vessels . . . The mighty power of steam enables regular voyages to be calculated on, while the large amount of capital invested in a steamer and the keen competition it meets compel the shipowner to take advantage of every hour and minute that can be saved in its employ,

he knew of what he wrote. Thomas the younger and the new generations of Scruttons expanded the firm’s activities into other areas: by 1882 not just shipowning and shipbroking, but insurance broking and marine salvage surveying.35 In 1871, the Scruttons were still living in the East India Road,36 with Thomas the younger’s sister Mary a member of their household. In late 1881 or early 1882, they moved to a new house in Buckhurst Hill, Essex – named “Copsefield” after Thomas the elder’s house on the Isle of Wight.37 T.E.’s daughter suggested that this generation of the family spoke “broad cockney”.38 The dynamism of the Scrutton business was matched by Thomas the younger’s impressive devotion to social causes. It is now difficult to establish the full range of his commitments, but their scale is clear: the Register of Mill Hill School records that he was “a member of 50 committees and was remarkable for his resourcefulness and strength of purpose”.39 An obituary in the Mill Hill Magazine recorded that “twenty societies of one kind or another occupied his attention and owed him their allegiance”.40 Amidst these competing demands, it is unclear quite how much time he was able to find for home life and his family. Thomas the younger’s charitable works embraced a number of spheres of activity,41 but educational causes predominated. This reflected the 34 35 37 39 41

The Contract of Affreightment as Expressed in Chartperparties and Bills of Lading (1886). 36 Post Office London Directory 1882, Part 3. 1871 Census entry. 38 Kelly’s Directory of Essex 1882. Midgley, p. 29. 40 Hampden-Cook, p. 70. Mill Hill Magazine (MHM), April 1896. For example, a subscription to the Reformatory and Refuge Union (The Times, 8 May 1856); contributing to the Central Relief Fund and the London Congregational Relief Committee (The Times, 31 January 1863); support for the Poplar Hospital for Accidents (The Times, 28 July 1865), the Infant Orphan Asylum (The Times, 16 November 1867) and the Poor of the Isle of Dogs (The Times, 26 November 1867); chairing the management committee of the East London Hospital for Children and Dispensary for Women (The Times, 28 April 1873); the publication of a Christian monthly magazine – whose

8

antecedents

particular passion of Congregationalists for popular education: initially on the basis that the state should play no part in the provision of education, but after the Elementary Education Act 1870, in many instances by way of involvement in the school boards thereby established, in an effort to ensure that such religious instruction as took place was non-denominational in content.42 Thomas the younger’s involvement included support for “Ragged Schools” – charitable schools for the poor, established with strong support from the Nonconformist religions, which were educating 26,000 children in 1867.43 In 1854, Parliament passed the Reformatory Schools Act,44 under which existing or newly established reformatories could be certified by the Home Secretary, and to which children convicted of criminal offences could be sentenced. One such school was the Home in the East Reformatory School for Boys in Old Ford Road, Bow,45 which was certified on 29 November 1855 as a reformatory for fifty boys. Thomas the younger was its honorary secretary, and later its governor.46 He was an elected member of the first London School Board, representing the Tower Hamlets division from 1870 to 1882, in which capacity, as will shortly be seen, he had a close involvement in “industrial schools” for truanting and criminal boys. He was also one of the founders and the first treasurer of Milton Mount College,47 a boarding school founded in 1871 at the instigation of the Rev. William Guest, a minister of the Congregational Church in Gravesend, to educate the daughters of Congregationalist ministers. Thomas the younger was the treasurer of the school from its foundation until 1889. At his instigation, a school magazine was started in 1874, supported by his undertaking to cover any loss in respect of the issue of the first 500 copies. However, Thomas the younger’s most lasting contribution to the field of education was to be made to Mill Hill School, which was

42 43

44 45

46 47

demise is recorded in the London Gazette for 19 November 1878, at p. 6239; founding the London Schools Swimming Club (The Times, 23 October 1882); and chairing the Local Marine Board for the Port of London (The Times, 26 September 1887). Dale, pp. 646 and following. C.J. Montague, Sixty Years of Waifdom: or, the Ragged Schools Movement in English History (1969). 17 & 18 Vict. C86. 3rd Report of Inspectors of Reformatory Schools, [2688] H.C. (1860), xxxv; Returns of Aided or Supported Schools H.C. 495 (1871), lvi. See for example the Post Office London Directory 1882, Part 3. For the following see Hilda Harwood, The History of Milton Mount College (1959).

1.3 thomas urquhart scrutton: “thomas the younger”

9

destined to owe its very existence to him.48 In the 1860s, Mill Hill was heading for financial ruin, with a falling roll and rising debts, and the effects of a long period of misadministration.49 A meeting of old boys at Radley’s Hotel held to consider the school’s plight led to the formation of a committee of six, with Thomas the younger at the fore.50 It was resolved that the school should apply to the Court of Chancery to rearrange the trusts on which it was based and to appoint new trustees. Support for the school was solicited from old pupils and influential persons felt to be sympathetic to the school’s ethos. A new trust was formed, with Thomas and his brother Alexander among the trustees. New capital of £9,635 was raised – nearly £430,000 in 2012 terms – £175 (£8,000 in 2012 terms) coming from Thomas himself. The old school closed in July 1869, and a new foundation opened on 7 October, with only thirty-four boys: the public were informed that the school had been “reconstituted . . . on the model of the great public schools of England and will be conducted on broad and liberal principles”.51 By 1873, there were 135 names on the school roll. It was not all smooth sailing thereafter – numbers continued to vary, and when the school hit the hundred mark again in September 1893, it was the third occasion on which Thomas the younger had seen the school pass the century during his period of association with it. But never again was the school’s existence threatened as it had been in 1866. In addition to over thirty years as treasurer, Thomas the younger was also a life governor and president of the Old Millhillians Club, and he endowed a writing prize. Writing in memoriam, the Mill Hill Magazine noted that Mill Hill was his chief care. His thoughts were most with his old school, and his best powers were put forth in her service . . . For those . . . who knew and worked with him in days that seemed to be darkening towards failure, for those who felt the power of his indomitable purpose, when wheels were deep in mire and ways were choked with rock, there is a grateful sense of thanks that death should have passed him by till the times of trouble were over and the fair way reached again.52

48 50 52

49 See generally James and Braithwaite. James, p. 205 and following. 51 Braithwaite, p. 79. The Times, 24 July 1869. MHM, 1896. To like effect, Hampden-Cook, p. 70: “an ever zealous and ever generous friend”.

10

antecedents

1.4 The young T.E. Such was the household into which T.E. was born in August 1856. He had one brother – Frederic Scrutton – who was born in 1859, two sisters dying in infancy. The Scrutton Papers contain a fascinating glimpse of the early T.E., in letters he wrote home to his parents when aged eight whilst staying with his mother’s family in Norwich (whether for a holiday or on a more permanent basis is not clear). Religion appears to have loomed large in his childhood: one letter to his mother records, “I went with Aunt to the Cathedral yesterday. I went in the morning to Alexander’s Chapel. In the evening I went to a chapel a little way down the road”.53 Discipline was firm: in a letter sent a few days before, he informed his father, “I am not to run my hoop in the streets or in Donehan Road or else I shall be taken up and my hoop broken to pieces”.54 And T.E.’s accumulation of prizes and relentless energy are evident in this early letter to his mother from the same period: “I have got a certificate. I went to Aunt Ruth’s on Saturday. I am getting on very well. I cannot write any more as I am in a hurry”.55 T.E.’s early education came at a boarding preparatory school called The Wick in Hove, which he attended until 1870.56 The school, located at Wick House in Furze Hill near Brighton, had been the site of an “academy for young gentlemen” from 1829 to 1833 which is said to have been the inspiration for Dr Blimber’s Academy in Charles Dickens’s Dombey and Son.57 A school was restarted by the appropriately Dickensian Mr A.S. Creak M.A., Trinity College, Cambridge, who leased the building on 25 March 1864 and was proprietor–headmaster until 1886. An advertisement in The Times declared, “Boys prepared for the Universities, Army, Navy and other examinations. Junior Boys prepared for the Public Schools”.58 Nothing is known of T.E.’s time there, save that this early exposure to a Trinity College man does not appear to have left any lasting animus to that institution.

53 54 55 56

57

58

T.E. to “my dear Mama”, 15 January 1865, Scrutton Papers. T.E. to “my dear Papa”, 10 January 1865, Scrutton Papers. Undated letter to “my dear Mama”, Scrutton Papers. Hampden-Cook, p. 133. The 1871 census lists the fourteen-year-old T.E. as a “scholar” living at Mill Hill, Hendon. For this and following see Judy Middleton, The Encyclopaedia of Hove and Portslade, Vol. XV (2002), pp. 84–6. The Times, 16 September 1882.

1.4 the young t.e.

11

The “public school” for which T.E. was being prepared was Mill Hill, and he made the inevitable move in the second term of 1870, Frederic joining him a year later, and his cousin James (Alexander’s son) in the first term of 1872. The Scrutton Family History suggests that the boys were destined for different paths from the outset, observing of T.E., At a very early stage it was realized that he had a good brain and a phenomenal memory. It was therefore decided that he should concentrate on these gifts and make his career on academic lines, by scholarships if possible. His brother, also with a good brain, was to succeed to the family business.59

Mary Midgley offers a rather different – and more plausible – account: that Thomas the younger “was very cross when . . . Thomas Edward insisted on going into the law rather than into the family firm”.60 The reference in Janet Scrutton’s history to T.E. being funded “by scholarships if possible” suggests that the heavy outgoings and delayed returns on a career at the Bar were not met with equanimity in the Scrutton household. There were two dominant characters on the Mill Hill staff during T.E.’s period there – indeed, two figures of national, and in one case international, renown. The first was the headmaster, Dr Richard Weymouth,61 the son of a Royal Navy commander and the first recipient of the degree of LL.D. from University College London following “a severe examination in Anglo-Saxon, Icelandic, and French and English language and literature”. One Millhillian of his period described Weymouth as “a man with an unmistakable genius for teaching and ruling boys”, a “man who hated laziness and would not tolerate it in his pupils on any pretext”, and who had “a passion for accuracy which must have left an indelible mark on the minds of many of his boys”. Another pupil from this period recalled that Weymouth taught his pupils reverence for the law – for rightly constituted authority – as few perhaps had ever learned it. And although, as a result, he had to face much unpopularity and obloquy, and it must be confessed, came to be rather feared than loved, yet, in this matter of stupendous importance to the welfare of a school, he never shirked his responsibilities. 59

60 61

Scrutton and Lidstone, The Scruttons: A Summary of Family History (“Scrutton Family History”), p. 32. Midgley, p. 44. See Oxford Dictionary of National Biography, James and Braithwaite for this and the following.

12

antecedents

There is much in this description which might have been said of T.E. by his pupils and juniors in his time at the Bar, or by those who appeared before him as a judge. While it may be coincidental, Dr Weymouth boasted an impressive beard.62 T.E. had sufficient regard for Dr Weymouth to put him forward as a referee when he applied for the chairs of jurisprudence and constitutional law and history at University College London – although Weymouth’s position as a fellow of UCL made the selection of referee a shrewd one. Weymouth’s regard for T.E. is clear: It is difficult to see what can be added to the evidence of ability far above the average afforded by the numerous distinctions he has gained both in the London University and at Cambridge, thereby confirming the high promise of his school days. But besides his natural ability, Mr. Scrutton always showed himself punctual, energetic and methodical, with an excellent temper, and I am persuaded that discipline would not be a weak point in his classes.63

The second key figure of this period was Mr, later Sir, James August Henry Murray,64 who also boasted a flowing beard – red in his case. He joined Mill Hill in 1870, the same year as T.E., and acquired lasting fame for his editorship of the first Oxford English Dictionary: Professor F.J. Child of Harvard University is said to have told visitors to England to visit three places: Westminster Abbey, the Tower of London and “the Scriptorium at Mill Hill where the big dictionary was being made”. T.E. made his own small contribution to that monumental work. The production of the dictionary involved numerous readers supplying Murray with quotations from works of literature illustrating the use and sense of particular words and phrases. T.E. was assigned John Stuart Mill’s Utilitarianism and Caird’s On Kant and supplied 700 quotations to Murray.65

62

63

64

65

See Braithwaite. A photograph of Dr Weymouth with a group of Mill Hill Monitors in 1873 – T.E. possibly among them – appears on Braithwaite, p. 86. UCL/AM/C/89. Coming from Weymouth, a particularly strict disciplinarian, the comment concerning discipline is not quite the “faint praise” it might at first appear. Oxford Dictionary of National Biography, which has a photograph of the Gandolphian beard. In addition to the comprehensive Oxford Dictionary of National Biography entry, there is a wealth of literature about Murray: see among many others W.G.R. Murray, The Dictionary Maker (1943); and K.M.E. Murray, Caught in the Web of Words (1977). Oxford Dictionary of National Biography; (1884) 19 No. 1 Transactions of the Philological Society 633. Frederic Scrutton was assigned the works of Swinburne’s Poems and supplied 400 quotations.

1.4 the young t.e.

13

It was Murray who encouraged the formation of the Mill Hill Magazine in June 1873, to publish “articles on Millhillian subjects from all writers, articles on all subjects by Millhillian writers”. T.E. was a member of the original editorial team of four, their plans hatched in a long east passage beyond the headmaster’s study.66 One of his fellow editors recalled, “I can well remember the anxieties and uncertainties of the first number. We wondered if we should survive our first issue.” When approached on the fiftieth anniversary of the magazine, T.E. expressed the “melancholiness of the discovery that the institution which we helped to found has attained its fiftieth birthday”, before confessing that he could remember practically nothing of his involvement.67 That first issue – the Mill Hill Magazine (edited by the Mill Hill Boys) – was published in June 1873.68 It declared, “The editors, elected by the suffrage of their schoolfellows, enter on the duties of their office with hope, and yet not without some anxiety, and a deep sense of their responsibility.” It included a poem by T.E. entitled “The Last Interview between Clarendon and Charles II”, T.E.’s winning entry in the English prize poem competition for boys over sixteen, in which Dr Weymouth had asked entrants to produce a Shakespearean dialogue on this subject. In the poem, an emotional Clarendon is given his marching orders by the feckless king, concluding with the moving peroration, I fain would die on English soil, and mix My ashes with my country’s dust. But since ’Tis done, ’tis done, My King farewell. The future’s teeming womb no season breed When, needing friend, thou find’st no friend in need!

Readers could also enjoy a letter from “Natator” in support of an ongoing campaign to open a swimming bath at the school, the money to be raised by the boys from the Upper School relinquishing their pocket money for a term. T.E. may well have been the author and would certainly have been a strong supporter, telling a later generation of Millhillians that “instead of your excellent swimming bath we sometimes went down the hill to a small muddy pond and imitated the frogs”.69 There were also suitably wholesome articles on “A Tour in North Wales”. “A Legend of the Rhineland” and “On the Botany of Mill Hill and Its Neighbourhood”. 66 68

67 James, p. 224 and following. MHM, June 1923. 69 MHM, June 1873. MHM, June 1923, for this and following.

14

antecedents

Life at Mill Hill appears to have involved a judicious mix of the regulated and the carefree. The quality of punctuality at Mill Hill was a fine art. Morning school now began at seven o’clock, with the bell ringing at 6.30. Seven minutes to seven was said to be the usual time for boys to rise, “experience having shown that seven minutes were absolutely necessary for the proper performance of ablutions and toilet”, with a few individuals with “an exceptional genius for the manipulation of articles of attire” having reduced the period to four minutes. Sport was not taken too seriously, not least because the facilities were poor: cricket was played on a steeply sloped hill, and T.E. recalled the “next Twenty Two” – i.e. those boys not good enough to play in the match involving “the first Twenty Two – all running down the hill towards the Midland Station to field a sixer to leg, which apparently never stopped running”.70 He also recalled exploring “the intricate and dirty passages under the School House in which legend ran that an entire class once disappeared from the ken of an unsuspicious master” and a “bedroom feast”.71 An obituary of T.E. in the Mill Hill Magazine recalled that at “school, Scrutton’s interests were scholastic and literary rather than athletic”,72 despite being “physically tall and strong”. He became a monitor and in due course head of school – one promotion to the supreme tier which was to come his way. His achievements were appropriately rewarded on Foundation day in June 1873,73 the prizes being presented by a man who contributed more than any other to the mythology of the English public school, Thomas Hughes MP, author of Tom Brown’s Schooldays and future county court judge. T.E. received copies of Paley’s Aeschylus and Hesiod and Maclean’s Juvenal and Persius for achieving second-class honours in his Cambridge Local Examination, of Dalziel’s Illustrated Goldsmith for his poetry prize and Bagster’s Polyglot Bible (in two volumes) as a prize for scripture knowledge. He later recalled that “when he advanced in the school to receive his present of books (which he has never looked at since) he thought he was a fine fellow”.74 T.E. left Mill Hill with positive feelings for his old school. The Mill Hill Magazine noted that “throughout his life Scrutton remained in touch, though not very intimate touch, with the school”.75 Initially the degree of touch was all that any school could have hoped for. An Old Millhillians 70 72 74

71 MHM, June 1923. MHM, December 1879. Speech at OMC dinner. 73 MHM, November 1934. MHM, July 1873. 75 MHM, July 1923. MHM, November 1934.

1.4 the young t.e.

15

Club was founded in 1878.76 The following year T.E. attended a general meeting in the Freemason’s Hall in Holborn and was elected a member of its committee.77 The Mill Hill Magazine for 1882 records his involvement with Old Millhillians both at a dinner and on the sportsfield.78 From the end of 1882, contact with the club appears to have ceased for some time, as T.E.’s political interests came to the fore. However he served as president for a period from 1902, and again in 1910. Thereafter he retained some involvement as trustee of the Scrutton scholarship established by his father.79 He came back to distribute prizes at the school in 1923. On that occasion, he told those assembled to hear him, “There were those who believed that the spirits of the departed might revisit this world, and if that belief were true he would like to think that the spirit of his father was standing by his side.” He hoped it might be said that “to his father more than any other man was due the fact that a Mill Hill School existed today”.80 Two years before his death, T.E. returned to the school again to present a portrait of Nathan Micklem, his contemporary at school, at university and in law. At one Old Millhillians dinner chaired by T.E., Augustine Birrell MP, who was shortly to succeed him as president, told those present that “there was no reason why any one of them should hesitate to send their children there”.81 However, T.E.’s own sons were to go to Charterhouse – a school founded in 1611 and a bulwark of the Anglican establishment – and Uppingham – founded in 1584, and one of the founding members of the Headmaster’s Conference.82 A parent’s decision where to send a child to school is a very personal one, reflecting a range of considerations in which the needs of the individual child and the views of their spouse are likely to be dominant. However, T.E.’s decision not to send any of his sons to the school which his father had saved, where one of the houses bore his father’s name, and where his father was commemorated by both a plaque in a chapel and a portrait in the dining hall, is revealing. It is one of a number of respects – the decision to follow a career in law rather than entering the family business, bringing up his children in an atmosphere “with no real religion going on around” in contrast to his father’s devoted Congregationalism, his use of the name 76 78 80 82

77 Old Millhillians Club (“OMC”) minute book for 1879. James, p. 243. 79 MHM, 1882, at pp. 82, 159 and 188. Hampden-Cook, p. 133. 81 The Times, 2 July 1923. The Times, 31 October 1903. Although a long-established school, Uppingham only made its leap to the front rank of English public schools at the same time as Mill Hill.

16

antecedents

Edward rather than that he shared with father and grandfather – in which he chose to follow a very different path from his father.83 There is another telling family story which merits mention in this context. The Urquhart family owned a small estate at Kinbeachie, between the Cromarty and Moray Firths, which was held in tail male.84 It found its way to T.E. in 1897, at a point in his life in which he was thriving at the Bar. Janet Scrutton recalls that T.E. “was a very practical person; he did not believe in absentee landlords and so arranged with Lyon King arms that the entail should be cut, and the estate sold”.85 T.E.’s objections to absentee landlords – particularly in the troubled context of Anglo-Irish relations – are well documented, as is his opposition to the hereditary principle in the House of Lords.86 Persuading his young sons to agree to the barring of the entail and selling the property can be seen as an act of principle: albeit in later years his sons were to lament, perhaps in jest, the loss of the chance of being country gentlemen.87 But it is scarcely suggestive of strong sentiments of familial identity or obligation.

1.5

Mill Hill in retrospect

That Scrutton-edited first edition of the Mill Hill Magazine had asserted that “we are no longer what we used to be, a school unknown among the great educational institutions of England. We have already outrun not a few that went before us and the superiority we have attained we mean to hold and improve”.88 But in the public perception, at least, while having come very far, Mill Hill was not yet one of the great schools of England. An article in The Globe included Mill Hill as a “middle-class school . . . one which does not as its ultimate purpose aim at sending its pupils to the Universities”.89 A postcard of the 1870s to Harrow soliciting a cricket match received the response “Eton we know, and Rugby we know, but who are ye?”90 The visit of W.E. Gladstone to present the prizes at Mill Hill on New Foundation Day, 11 June 1879, in many ways marked Mill Hill’s coming of age, but even this seal of approval was qualified somewhat by the Grand Old Man’s observation that only when the school roll reached 200 (a mark of which Mill Hill was still some way short) might it consider itself a public school. The school had yet to take on some of the trappings of the public school – T.E. later recalled 83 86 89

84 Midgley, p. 18. Family History, pp. 11–13. 87 See Chapters 2 and 3 below. Midgley, p. 45. 90 Braithwaite, p. 110. Braithwaite, p. 110.

85

Family History, p. 13. MHM, June 1873, editorial.

88

1.5 mill hill in retrospect

17

that there was no school motto because they “savoured of ritualism, especially if they were in Latin”.91 T.E. emerged, therefore, not from a minor public school, but from a school still making its mark in the intensely hierarchical world of Victorian education: marked out by its dissentient tradition and relatively recent origins. That identification with dissent followed Scrutton throughout his life: writing after his death, Lord Wright, one of T.E.’s former pupils, observed that “there were in his nature some elements of Nonconformity”, the capitalisation of that word being quite deliberate.92 Its position outside the central channel of the establishment mainstream was also reflected in the path its former pupils took in the next stage of their education. The final bars on Nonconformists proceeding to Oxford, Cambridge and Durham had been removed in 1871,93 with the passage of Sir John Coleridge’s Act to Alter the Law respecting Tests in the Universities of Oxford, Cambridge and Durham and in the Halls and Colleges of Those Universities. However, Mill Hill had developed strong ties with the “new” university of University College London – at one stage “almost the only place of education to which Millhillians could go on leaving school” – and it was slow to adapt to the change. Dr Weymouth “made all his sixth form read with a view to matriculation at London University, of which he himself was so distinguished a member”, and no Mill Hill boy was to gain a scholarship to either Oxford or Cambridge until 1884, when one of Weymouth’s own sons gained an exhibition to Lincoln College. A Millhillian of T.E.’s vintage observed, somewhat unkindly, that the accurate but elementary omniscience demanded in those days by the London matriculation was largely the ideal of school work. It gave an admirable finish to the school education of those proceeding to countinghouse or office. It did not help the few who went to the older Universities or the learned professions.94

T.E. appears to have shared these sentiments: in 1881 we find him speaking at the Old Millhillians Club in support of the motion that “the Mill Hill School should prepare for Oxford and Cambridge rather than London University”.95 T.E. sat the University College London matriculation examinations which took place between 30 June and 4 July

91 93 94

92 MHM, July 1923. The Times, 1 September 1934. Dale, pp. 627–30. See also D.A. Winstanley, Later Victorian Cambridge (1947), Chapter 3. 95 James, p. 262. OMC minute book, 30 March 1881.

18

antecedents

1873,96 obtaining first-class honours, which under Mill Hill tradition earned a holiday for the school.97 Frederic left Mill Hill in April 1876, and followed T.E. to UCL,98 but, reflecting a decision which T.E.’s daughter Janet suggests had been made some time before, their paths were to diverge at this point. Frederic’s gifts were for business and not scholarship. He left UCL after a year, and joined the family firm. He and his cousin James made a round trip from London to the West Indies and back to Greenock, in a steamer on charter to the firm, and together they oversaw the transition from sail to steam between 1880 and 1884, and the establishment of the stevedoring department in 1890.99 As Scruttons Ltd, that department survived the sale of all the family’s shipping interests, and made its own contribution to the development of English contract law.100

1.6 The school board scandal In contrast to the current era in which politicians, as we are told, “do not do God”, many of the great political controversies of the late nineteenth and early twentieth centuries were religious in nature: either avowedly religious controversies, such as whether the Church in Wales should be disestablished, or controversies in which the rival camps were essentially split on religious lines, such as the licensing of public houses. The issue of state provision of education fell into this latter category, there being a desire on the part of the Church of England to ensure that those educated in such schools were brought up in tenets of that particular faith, and on the part of Nonconformists, Roman Catholics and other minorities either for there to be no religious teaching at all, or for separate religious instruction according to the tenets of their own faiths. The passing of the Elementary Education Act 1870 was a major step forward in the provision of state elementary education, but the issue of religious education was so contentious that it was left to the school boards established by the Act to determine, within limits, the policy in their own particular area, under the so-called Cowper-Temple clause.101 96 97 99 100

101

University College London (“UCL”) calendar, Almanac for 1872. 98 MHM, July 1873. UCL calendar for 1876, at p. 167. Halliday, pp. 7–14; Jeffrey, pp. 14–15. Scruttons Ltd v. Midland Silicones Ltd, [1962] A.C. 446, a leading case on the doctrine of privity of contract. For the origins of the Act and the clause see Hugh B. Philpott, London at School: The Story of the School Board 1870–1904 (1904) (“Philpott”).

1.6 the school board scandal

19

The School Boards were to be locally elected by the ratepayers, with women ratepayers who met the property qualification able both to vote and to stand for election. Thomas the younger stood for election as one of the five members of the London School Board for Tower Hamlets, an election in which “the chief issue that divided the candidates . . . as at so many subsequent elections, was the nature of the religious teaching, if any, to be given in their schools”.102 There was some controversy when it emerged that he had “sent round a circular asking his Nonconformist friends to give all their five votes to him”:103 the system gave voters the same number of votes as there were places up for election, but all of those votes could be exercised in favour of one candidate. The tactic worked: he was elected, third in the poll, The Times noting that he was “little known out of the district but much respected within it . . . a Congregationalist Dissenter well-known for his liberality in the cause of education and his practical labour in the Bible Classes”.104 He was re-elected at the following two elections, and became chairman of the Industrial Schools Committee:105 overseeing schools to which police courts had the power to send persistent truants and boys convicted of minor criminal offences.106 Here he was to come into conflict with the women who were, for a time, to be his nemesis: Florence Fenwick-Miller, Elizabeth Surr and Helen Taylor, who together formed an “independent group” of women members on the board. Both at the time, and in particular in the subsequent consideration by historians of the role of women on the London School Board,107 the conflict has been viewed through the lens of gender politics. However, Thomas the younger was not facing the full ranks of the

102 104 106

107

103 Philpott, p. 19. The Times, 1 November 1870. 105 The Times, 1 December 1870. The Times, 21 December 1876. On industrial schools see Philpott, Chapter 12, where they are described as “not a home but a sanatorium for the morally infirm, and the whole regimen is devised to effect a cure”. There is a wealth of material on the women members of the London School Board, much of it written by Dr Jane Martin: see for example “‘Hard-headed and large-hearted’: women and the industrial schools, 1870–1885” (1991) 20 No. 3 History of Education 187; “Entering the public arena: the female members of the London School Board” (1993) 22 No. 3 History of Education 225; “‘To blaise the trail for women to follow’: sex, gender and the London School Board, 1870–1904” (2000) 12 No. 2 Gender and Education 165; and Women and the Politics of Schooling in Victorian and Edwardian England (1999) (“Women and Politics”). See also “‘So extremely like Parliament’: the work of the women members of the London School Board, 1870–1904” in The Sexual Dynamics of History published by the London Feminist History Group in 1983.

20

antecedents

Monstrous Regiment, receiving strong support from two other women on the board, Alice Westlake and Edith Simcox. A third, Emily Garrett, identified Thomas the younger as one of the few members of the Industrial Schools Committee who were not hostile to women members.108 The tensions on the board between Nonconformists and Anglicans, and between Liberals and Conservatives, appear to have been a factor, Thomas the younger being in both of the first-named camps. Another school board member, Helen Müller, was later to assert that Thomas the younger was “responsible for the three scandals associated with Upton House, the Shaftesbury and St Paul’s School . . . He undertook more than he could do, would not accept help and would take no warning”.109 Upton House was an industrial school under the board’s auspices, and allegations of cruelty and mismanagement there were raised by Mrs Surr with the board.110 She was dissatisfied with the reaction of the board, and in particular of Thomas the younger, and wrote to the Home Secretary to complain. His intervention led the board to commission a special inquiry, which found (by a majority of eleven to one) that there had been no systematic cruelty or excessive harshness at the school, but there had been inappropriate use of the cane by assistants,111 and the Home Secretary wrote a letter expressing concern at the use of irregular and unauthorised punishments.112 Mrs Surr’s motion to reject the report was defeated by twenty-nine votes to three,113 but her sense of grievance remained.114 The Shaftesbury was a training ship moored on the Thames which was both school and home to 300 truant boys.115 Thomas the younger was one of the principal supporters of the project, which Elizabeth Surr had come to oppose on the basis of its rising cost and what was said to be wasteful expenditure. As The Times noted, the expenditure on the Shaftesbury was a key issue in the 1879 school board election, it being

108 110 111

112 114 115

109 Martin, Women and Politics, p. 45. The Times, 8 December 1881. See Martin, Women and Politics, pp. 99–101. For letters by Mrs Surr, Thomas the younger and their respective supporters see The Times, 28 and 31 July and 4 August 1879. 113 The Times, 2 October 1879. The Times, 24 July 1879. The Times, 17 November 1881. See Philpott, Chapter 13. He notes the early history of the ship “was marred by administrative mistakes, some of a serious character” but that the project was ultimately successful. See also the London County Council, Report with regard to Industrial Schools, 1870–1904, at p. 53 and following, in LMA/SBL/1578. See also Martin, Women and Politics, pp. 102–4; NA/HO45/9551/62793.

1.6 the school board scandal

21

“contended on one side that the appointments of the vessel were too costly and on the other that no unnecessary expenditure had been incurred in fitting the ship up”,116 and there were various exchanges on the subject between Thomas the younger and Mrs Surr and Mrs Fenwick-Miller, both during the election117 and thereafter.118 However, it was the St Paul’s Industrial School scandal which was to prove most damaging to Thomas the younger.119 The school had been founded by Thomas the younger in 1873, because existing industrial schools were refusing to take various children, in particular those from the “criminal classes”.120 Thomas the younger put some of his money into starting the school, and paid the difference between its income and expenditure in those years in which the grants received were insufficient to cover its costs. He was also the school board representative on its board of management: in short, he was about as closely associated with the school as it was possible to be. On 7 September 1881, some of the boys at the school attempted to set fire to it. At or around this time Mrs Surr visited the school and was told that the boys had acted in response to its cruel regime. She invited a number of the boys and their parents back to her house, where statements listing the school’s alleged failures were taken, and she and Helen Taylor arranged and paid for solicitors and counsel to defend two of the boys when they were brought to court over the matter. At their trial, a similar explanation for their conduct was advanced, which was sympathetically received by Mr Justice Hawkins. Mrs Surr wrote to the Home Office. The initial reaction from the Home Office mandarin, Godfrey Lushington, was that Mrs Surr “was a most intemperate woman” but that a formal inquiry was necessary, and “whatever the result of the inquiry”, 116 117

118 119

120

The Times, 18 November 1879. Thomas the younger challenged the allegations of excessive expenditure at an election meeting reported in The Times on 20 November 1879, an account which was in turn challenged by Elizabeth Surr in a letter to the East London Paper. Alice Westlake wrote to The Times in his support, expressing her desire to speak out for “the truthfulness of an excellent public servant”, drawing a response from Mrs Surr: for these last see The Times, 25 and 26 November 1879. A report in NA/HO45/9551/62793 from Florence FenwickMiller makes particular complaint about the furnishings for the crew cabins: “two rugs . . . at a cost of £16 each, three Sournach carpets . . . one Daghestan rug . . . a pianette in an ebonized case . . . twelve Caspian rugs . . . nine Kurd rugs . . .”. The Times, 18 November 1881. See Martin, Women and Politics, pp. 104–7. The Home Office file is at NA/HO/144/86/ A853. The Times, 1 July 1882 for this and following.

22

antecedents

Thomas the younger would have to appoint a new manager. The inquiry took place: it was found that “the charges were exaggerated and some of them have not borne the test of enquiry”, but that the school was “not well managed”. The superintendent, a Mr Hinchcliffe, was suspended. Mrs Fenwick-Miller alleged that when Thomas the younger was shown the statements and asked what he proposed to do about them, he said, “Nothing”,121 and that the debate on the issue was postponed for four weeks at the first meeting of the school board in October 1881. However, Mrs Surr, Mrs Fenwick-Miller and others in their camp remained until the very end of that meeting, when most of the contentious business had been taken and only minor matters remained on the order paper, and then passed a motion authorising the sending of a letter to the Home Office condemning the management of the school in the strongest terms and asking for the school’s certificate to be withdrawn.122 Those motions were rescinded by a better-attended board meeting the following week, and it was decided that the board would pursue its own inquiry. This held a number of sittings, hearing evidence from various boys and parents called by Mrs Surr, who acted as prosecuting counsel, with Thomas the younger essentially in the role of defendant.123 A whole series of grievances reminiscent of Dickens’s Dotheboys Hall were advanced: complaints about the quality and quantity of food, excessive punishment with the cane, the use of handcuffs, children being forced to stand for long periods in the cold or locked in a room called “the cell”, the boys’ clothing and food allowances being diverted elsewhere, boys suffering permanent and in some cases ultimately fatal illnesses because of their treatment there. Thomas the younger found himself in great difficulty in meeting this testimony – he appears to have had little notice of the allegations made and very little personal experience of what had gone on in the school, and he was not permitted to have school staff with

121

122

123

Mrs Surr later claimed that she had raised concerns about the school with Thomas the younger for some time before, but he “treated contemptuously or only laughed”: The Times, 30 June 1882. In response, reference was made to her comments in the school’s visitors’ book which did not record any concern. For this and the following see The Times, 14 October 1881; Mrs Fenwick-Miller’s and Thomas the younger’s letters in The Times of 15 November 1881; and letters from Mrs Surr and Miss Simcox published on 16 and 19 November 1881. See reports in The Times of 31 October and of 8, 9 and 11 November 1881, and the letters to The Times from those involved of 12 November 1881. A full transcript appears in NA/HO/144/86/A8532. The inquiry was also given extensive coverage in The Daily Telegraph: see e.g. 31 October and 8 November 1881.

1.6 the school board scandal

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him when cross-examining Mrs Surr’s witnesses unless he gave up the opportunity to call those staff as witnesses. Perhaps sensing where matters were going, Thomas the younger announced on the third hearing day that “many grave irregularities have occurred without the knowledge of the managers which renders necessary [a] . . . scheme of reorganisation” whereby a new board of twelve managers would be put in place, three of whom would be nominated by Mrs Surr, and a complete change of staff. This was agreed to by all, including Mrs Surr, and the inquiry terminated. Any hope that this would bring an end to the matter was to be shortlived. At the next meeting of the board, concern was expressed at the termination of the inquiry, and motions were passed both to resume the inquiry and to send the evidence already taken to the Home Office stating that it appeared to disclose serious charges of great gravity which might require further proceedings. The Home Secretary – the Liberal Sir William Vernon Harcourt, shortly to become famous for the “Harcourt Interpolation” when a miscreant copy-setter successfully inserted an obscene statement into a report in The Times of one of his speeches – himself weighed in, with a letter to the board. He stated that the Home Office was withdrawing the school’s certificate because “a most deplorable and disgraceful state of affairs has been suffered to exist”. Thomas the younger wrote a long and emphatic denial in response, supported by evidence, which at least earned the comment from a Home Office official that “through the mismanagement of the inquiry by the school board, the school is necessarily presented to the world as far worse than it actually was”.124 However, the public stance of the Home Office was very different. Sir William Harcourt wrote a letter to Mrs Surr of the “fragrant woman” character, praising her behaviour and condemning that of the board with equal vigour. The Home Office ensured that both letters were published in The Times.125 In addition, the various statements taken by Mrs Surr detailing the various cruelties allegedly inflicted were published in the press.126 Public meetings were held to condemn the state of affairs at the school, and to call on Thomas the younger to resign his school board seat, The Times reporting, “About 1000 persons chiefly of the working classes with a tolerable sprinkling of the middle classes constituted the

124 125

HO144/86/A8532, minute of 14 November 1881. 126 The Times, 14 November 1881. The Times, 14 November 1881.

24

antecedents

meeting.”127 There was another “densely crowded public meeting” in the Mile End on 22 November 1881, in which a letter read by one of Thomas the younger’s supporters was “constantly interrupted by hisses and boos” and in which Mrs Surr “challenged Mr Scrutton to meet her on the platform of the Bow and Bromley Institute with his witnesses and if Mr Scrutton did not clear himself there from the charges made against him let him ever after hold his peace”.128 Thomas the younger announced that he would not attend any further meetings of the board pending any Home Office inquiry, and he was replaced as chair of the Industrial Schools Committee.129 The Home Secretary had referred the matter to the Director of Public Prosecutions, who advised that “the statement sent him affords no evidence on which to ground a criminal charge”. When the Home Secretary announced this decision, a motion for a new school board inquiry was passed.130 However, Thomas the younger had decided not to “hold his peace”, The Times reporting that “it is stated that the question of the management of St. Paul’s Industrial School will probably be raised in a court of law in one or more actions by Mr Scrutton”.131 He informed the board of his intention to bring proceedings in which all of the evidence relating to the school would be heard, suggesting that any new inquiry should be abandoned or postponed until the court case had been heard, and that he would not be participating in any inquiry. The board agreed and the inquiry was suspended.132 Thomas the younger resigned from his position on the board in May, a motion expressing regret at his resignation being passed by only two votes, following which “a scene of considerable disorder then ensued”.133 Thomas the younger’s libel case began on 27 June 1882.134 It was not brought against Mrs Surr or Mrs Fenwick-Miller, but another board member, Helen Taylor, in respect of statements made by her in correspondence and at meetings which went somewhat beyond the matters thus far considered by the board. She had written a letter in November 1881 alleging that Thomas the younger had “moral guilt” for the manslaughter of boys who it was alleged had died as a result of their treatment in the

127 129 131 133 134

128 The Times, 14 November 1881. The Times, 23 November 1881. 130 The Times, 25 November 1881. The Times, 13 January 1882. 132 The Times, 19 January 1882. The Times, 20 January 1882. The Times, 13 May 1882. For the following see reports of the trial and its aftermath in The Times for 28, 29 and 30 June and 1 July 1882.

1.6 the school board scandal

25

school, that he had profited from work done at the school and that he had supplied it with adulterated food. She had also put a motion before the school board repeating these allegations and suggesting that Thomas the younger should be prosecuted for fraud. All of this material was handed to and reported in the press, and matters were compounded by statements made by Miss Taylor at a public meeting to similar effect, alleging that “every kind of wanton cruelty was carried on year after year in that school by the authority of a man who calls himself a Christian and philanthropist”. Thomas the younger was represented by two of the leading advocates of the day – Charles Russell QC, “the first advocate of his age”, and Robert Finlay QC, later Lord Chancellor, with Edward Clarke QC for the defence. Russell received a fee of 300 guineas.135 Mr Justice Hawkins was allocated to try the case. Thomas the younger did not give evidence as part of his case, reserving his right to give rebuttal evidence once Miss Taylor’s evidence had been called. That evidence sought to stray beyond the issues raised in the pleadings to wider issues of mismanagement at the school, leading the judge to declare that “the present action involved a lamentable waste of money” and that he had no power to go into issues of management, not on the pleadings. Further, It was a most lamentable thing that the inquiry which had been instituted had not been carried through and indeed it would probably have been better that there should have been a Royal Commission to inquire into the management of the St Paul’s Industrial School.

On the last day of the trial, Thomas the younger’s counsel team had been reinforced: T.E. Scrutton making his first court appearance in his father’s libel action. He had been called to the Bar only nine days before.136 After evidence from a boy named Elster was concluded, there was discussion between Clarke and Russell, following which Clarke announced that “with a full sense of my responsibility in the case, from this time I am not going to call any further witnesses on this part of the case”. It appears from a letter from Mrs Surr when appealing for funds to meet Miss Taylor’s costs that he had advised that the evidence to be called was too general in nature to support the specific allegations which 135 136

(1882) 73 Law Times 221, p. 149. Register of Admissions to the Honourable Society of the Middle Temple from the 15th Century to the Year 1944, Vol. II, 1782–1909 (1949), p. 606; (1882) 73 Law Times.

26

antecedents

had been made. Russell then called Thomas the younger, who gave evidence as to the history of his involvement in charitable schooling, the origins of the school and his support for it, that he had never supplied clothes or food to the school or otherwise profited from it, and that in his many visits to the school no allegations of cruelty or mismanagement had ever been brought to his attention. The evidence was not challenged in cross-examination and Clarke accepted that the libel could not be justified, and asked the Court to enter a verdict for agreed damages of £1,000.137 For his part, in what looks like the final step in the implementation of an agreed compromise, Russell accepted that Miss Taylor had acted with an honest and mistaken sense of duty. The judge agreed with both counsel in their comments, saying Miss Taylor had acted without any spite and that Thomas the younger’s character stood “perfectly clear”. In its editorial, The Times stated that the school “had beyond all question been mismanaged” but that, nonetheless, the result of the trial has been that Mr. Scrutton’s character has been pronounced perfectly clear . . . We are glad that some light has been at length thrown upon a matter which has been too long in obscurity and which has eluded every previous attempt at enquiry.

It suggested that the school board’s decision not to go on with its own inquiry, and Thomas the younger’s part in it, “was an unfortunate affair in every way”, suggesting “a suspicion that they had good reason for not wishing to go on with it”. Its sternest criticisms, advanced in terms which can only be described as misogynistic, were reserved for “the impulsive lady members of the London School Board” who had adduced no evidence that “Mr Scrutton was the monster in human form which the female fancy had pictured him and which the female language had described him to be”. It concluded, “The personal charges against Mr Scrutton have been withdrawn after they had broken down so completely that not even a lady member of the London School Board in her most excited moments can attach the slightest credence to them.” While Mr Justice Hawkins and The Times were to declare that Thomas the younger’s character had been pronounced perfectly clear, the libel judgment did not have the definitive effect for which Thomas the younger must have hoped. The circumstances of the end of the trial, with much of the evidence for the defence (who had prepared ninety 137

Equivalent to about £48,000 in 2012.

1.6 the school board scandal

27

witness statements) not having been called following the judge’s statement that he would not be investigating issues of management not raised on the pleadings, led to correspondence in The Times between Thomas the younger’s detractors seeking a further inquiry and his defenders suggesting sour grapes on the part of the losers.138 An attempt to persuade the School Board to resume its inquiry failed.139 The story of Mrs Surr’s passionate campaigning has proved a more enduring narrative than Thomas the younger’s vindication of his reputation before judge and jury.140 T.E.’s first appearance in court could scarcely have been more memorable or satisfying. But the distinctive Scrutton name – so helpful to the biographer – had for a period attracted unfortunate publicity and associations. 138 139 140

See letters from Mrs Surr and from one of the jury in The Times of 2, 3 and 4 July 1882. The Times, 7 and 15 July 1882. A recent publication by the boroughs of Stoke Newington and Hackney to celebrate their historical heritage suggests Thomas the younger “just laughed and ignored” Mrs Surr when she raised complaints, and that Mrs Surr had “discovered that Thomas Scrutton had been stealing food from boys at another industrial school and he had to leave the Special Committee”. TimeLine issue 24 November 2009, available at www.timeline.org. uk/content/blogcategory/1/4.

2 A university man

2.1 That godless institution in Gower Street Until the foundation of University College (“UCL”) in 1826 – then known, at least to its supporters, as “the University of London” – London held the dubious distinction of being both Europe’s largest capital city and the only capital without a university.1 UCL owed its existence to Thomas Campbell and Henry Brougham, who wished to establish a modern institute of learning to be run along the lines of the Scottish or Continental universities. The new university had considerable appeal for Nonconformists, Roman Catholics and Jews, all of whom were excluded from Oxford and Cambridge by the religious “test” requirements, making adherence to the Thirty-Nine Articles of the Anglican Church necessary either to enrol or to graduate.2 A rearguard action by the ancient universities delayed the grant of UCL’s charter for a number of years, with a rival London University – the Anglican King’s College – being established in 1828 in the meanwhile. However, in 1836 the Royal Charter was granted to “the University of London” as the degree-giving body in respect of students at both colleges. In its founding prospectus, UCL had proclaimed its modernity: with courses in the mathematical and physical sciences, medicine and engineering, the “mental sciences” of philosophy of the human mind and logic, and the “moral sciences” of ethics and law. There was to be no religious teaching, still less a requirement of religious conformity – characteristics which were to lead to Thomas Arnold’s famous description of the College. That scientific and secular approach led UCL to inaugurate what may fairly be claimed to be the first systematic university study of law 1

2

See generally Negley Harte and John North, The World of UCL 1822–1990 (1991) (“Harte and North”); and H. Hale Bellot, University College London, 1826–1926 (1929) (“Bellot”). Scrutton later joked, “At the rival university, I understand, there is a teacher who will promise you a first class if you will learn the answer to thirty-nine questions”: “The work of the commercial court” (1921) 1 C.L.J. 6, at p. 7.

28

2.2 scrutton at ucl

29

in England.3 The influence of John Austin, appointed to the chair of jurisprudence in 1827, was to be profound, even though a lack of demand for his classes led him to leave UCL for the Criminal Law Commission in 1833, and his lectures – “The Province of Jurisprudence Determined” – were only to be published after his death. But the influence of Austin’s analytical method was still dominant fifty years later.

2.2 Scrutton at UCL UCL was a non-resident university, and it is probable that Scrutton lived at home during the period of his studies there. In any event, his parents would have been kept apprised of his progress: the Prospectus for Faculty of Arts and Laws for 1874–54 records that “in most of the Classes which belong to the Faculty of Art and Laws, a record is kept of the attendance and conduct of students in the Lecture Rooms, and an abstract of these records is sent to their Parent or Guardians twice in each Term”. While there were no student halls, we know from the same publication that “a steward is appointed to provide for the Students’ Breakfasts, Dinners and other refreshments, on his own account at fixed prices”. The want of student accommodation, and the scale of the surrounding metropolis, contributed to one of the deficiencies of UCL of this period: one contemporary stated that “it was hardly an exaggeration to say . . . that the students met one another in the lecture-rooms and libraries, and that there their acquaintance generally ended”.5 Scrutton’s first-year examination at UCL was in English language and literature. He studied under Professor Henry Morley, “one of the most energetic and sympathetic College figures of this period”. The heavily bearded Morley was a significant literary figure in 1870s England.6 He was an intimate of Elizabeth Gaskell and Charles Dickens, amongst other writers whose literature he taught. One student said of Morley, You could not hear his lectures without feeling that the zeal of his subject had eaten him up, and you could not look round you with without 3

4 5 6

Law at UCL – the Early Years (A Sesquicentennial Exhibition Illustrating the First Ten Years of the Law Department of University College London, 1827–1838) (1977), UCL College Collection A9. UCL/Col Collec A3/3. Bellot, p. 361, citing an article from the London Student of June 1868. For the following, Harte and North, pp. 78–9; Bellot, pp. 335–9; Oxford Dictionary of National Biography.

30

a university man realizing that his classes were a preparation for life as well as for examinations.7

Scrutton’s English studies can be followed through the UCL Calendars.8 “Elements of Language and the Literature” was a class taught “rather by conversation than by lectures” on Tuesday evenings: progress was tested by oral or written examination and students were assured that “care is taken to discover difficulties which may be removed by explanation and discussion”. There were also classes in English grammar “for practice in composition with regard to Style only, and for a study of its Principles”; English composition; Anglo-Saxon (studying King Alfred’s Orosius); and early English (for which the prescribed text was Piers Plowman). The literature class was divided into three parts. The first, “Literature of our own time: characteristics of the Nineteenth Century”, involved study of the works of Sir Thomas More, Sir Philip Sidney and Oliver Goldsmith: that Mill Hill gift of Dalziel’s Goldsmith must surely have been opened after all. The second was “Literature of a Period” which covered the reigns of James I and Charles I. Finally, students were taught the history of English drama. In each class, once a month, an hour was given over to viva voce examination: useful preparation for the professional life to come. For the course, he paid £6 6s, together with a further £3 3s the following year.9 Among the tasks demanded of Scrutton by that summer’s examinations was to “name the chief works in Anglo-Saxon and give an account of the same” and to explain “in what way can you generally tell at sight of the conjugation of an Anglo-Saxon verb”. When translating a passage from early to modern English, candidates were asked to “point out all traces of grammatical inflection in the passages just quoted; comment on any use of words in a sense no longer common; and explain obsolete words by reference to their derivation”.10 Scrutton performed these and other tasks with sufficient distinction to come third in the first-class division.11 7

8 9 10 11

B.P. Neuman, “Gower Street in the seventies” (1920) 88 The Nineteenth Century and After 261 (“Neuman”). UCL Calendar 1873–4, at pp. 26–8. UCL Professors’ Fees Books 1873–4 and 1874–5 (UCL/CA/FIN/FSBK/PROF). UCL Calendar 1874–5, p. xliii. UCL Calendar 1874–5, at p. 155; University College London Report of the Committee on Fellowships Presented to the Council January 14th 1882 UCL/AM/C/89; T.E. Scrutton application letter for the chairs of jurisprudence and constitutional law at UCL, UCL/ APPs/Jurisprudence 1882.

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The following year examinations brought the challenges of Latin and Greek.12 Latin was taught by Professor Robinson Ellis: the course consisted of a composition class and the study of Livy. Scrutton had begun his lectures the previous year, and continued them over the first part of 1874–5.13 Greek was taught by Professor Malden, who lectured on Aeschylus’ Persae – another Mill Hill prize proving useful – and Demosthenes’ Against Midias.14 It was said of Ellis that “strange of appearance and painfully short-sighted, with a quaint simplicity of manner and a child-like ignorance of his fellow man, he was in many ways but illqualified to teach the young”.15 Another student said that in the classroom he was “a strange mixture of hyper-efficiency and lamentable incompetence . . . He would break out into gusts of anger on the very slightest provocation”, while admitting that for all that, with one exception, he “owed more to him than to any of the other Gower Street professors”.16 Malden held the chair of Greek for forty-five years, and was coming to the end of his tenure, and indeed his life, by the time he taught Scrutton. Malden “never published anything of any consequence”.17 However, an article in The Spectator recalled that he was “conscientious, deliberate, precise . . . his whole genius and nature rebelled against doing anything at all, unless he could do it with that thoroughness which satisfied his fastidious taste”.18 No doubt benefiting from the preparation at Mill Hill, for coming first in the examinations Scrutton won the Senior Latin Prize, which was presented by the Master of the Rolls, Sir George Jessell.19 His overall performance in classics merited honours, but he was some way from the top of the class, coming second in the third class and obtaining a certificate at the annual prize-giving.20 In studying Logic and the Philosophy of the Mind,21 Scrutton came under the influence of the other dominant intellectual figure in 12 13

14

15 18 19 20

21

UCL Calendar 1874–5, at p. 24. Professors’ Fees Books 1873–4 and 1874–5 (UCL/CA/FIN/FSBK/PROF). He spent £7 7s in 1873–4, and the same sum again the following year. Again the lectures spanned both years. Scrutton paid £8 8s in 1873–4 and £9 9s the following year. 16 17 Bellot, pp. 325–6. Neuman, pp. 293–7. Bellot, p. 87. The Spectator, 8 July 1876. UCL Calendar 1875–6, at pp. 81 and 139; The Times, 25 June 1875. Report of the Committee on Fellowships Presented to the Council January 14th 1882, UCL/AM/C/89; UCL Calendar 1875–6, at p. 81. Professors’ Fees Books 1874–5 (UCL/CA/FIN/FSBK/PROF). Professor Croom Robertson’s fee for lecturing Scrutton was £6 6s.

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a university man

UCL’s Faculty of Arts and Laws: Professor George Croom Robertson.22 Robertson, who also boasted a beard, albeit not in quite as lavish a form as Henry Morley’s, was one of the most remarkable and acute minds that ever devoted itself to psychological and philosophical research . . . His immense erudition was notorious; he had an intimate acquaintance with all the great philosophical classics, and his critical judgments, whether one accepted them or not, were at least those of a powerful, candid and richly stored intellect.23

The UCL Calendar records the required course of study:24 In Logic, while due prominence is given to the Theory of Induction and Method of scientific investigation, the Syllogistic doctrine is fully expounded and its claims are enforced. The chief Metaphysical questions are taken up in the one course or the other, according as they can most appropriately be handled, care being had to present them in their various historic phases. The Lectures are mixed with conversation as a means of clearing up the most difficult points. Progress is tested by frequent written exercises and careful directions are given as to reading.

Candidates in the examination were required to answer such conundrums as “What is Philosophy as distinguished from Science or Sciences?” and to “set out the various modes of consciousness that may be referred to the head of Sense”.25 To complete the logic examination, candidates were asked, “What can you say for and against the doctrine that a logical proposition ultimately is an equation between two terms?” and to “explain the process of Reductio ad Absurdum”. In the examinations in December 1875, Scrutton came fifth in the second-class division.26

2.3

The University College Debating Society

One of the more successful collegiate institutions was the University College Debating Society, which, true to the institution’s secular principles, held debates “on any subject, not involving the discussion of

22

23

24 26

On Robertson see Bellot, pp. 343–5; Harte and North, p. 108; Caroline Foley, “George Croom Robertson as a teacher” (1893) new series 2 No. 6 Mind 276. G. Dawes Hicks, “University of London, University College, history of the College: Department of Philosophy”, quoted in H. Hale Bellot, University College London, 1826– 1926 (1929), p. 343. 25 UCL Calendar 1875–6, at p. 37. UCL Calendar 1875–6, p. lxxv. The Times, 8 December 1875; UCL Calendar 1875–6, at p. 81.

2.3 the university college debating society

33

religious creeds, previously approved by the Dean of the Faculty”.27 The attempt to remove this limitation and debate “politico-ecclesiastical” questions was a constant theme during Scrutton’s membership of the society. Meetings were held in the Reading Room, after which those present adjourned to “the University Bun House”, a baker’s shop with tea and dining rooms at the corner of Gower Place.28 In addition to current students, former members of the College often attended debates. Scrutton joined the society at the start of his second year:29 he was proposed by J. Neill Wood and seconded by J.S. Hill. Fellow debaters included his old Millhillian colleagues Nathan Micklem and future Liberal cabinet minister Thomas McKinnon Wood. On Scrutton’s first night, the motion “Is the present scheme of punishment for crimes short of murder satisfactory?” was carried in the affirmative by an overwhelming majority. Scrutton appears to have spoken for the first time on 3 December 1874, speaking in the negative on the motion “Would the permanent establishment of a Republic be conducive to the welfare of France?”. Silent in the debate on whether it was “desirable that cremation should suppress burial”,30 he spoke in favour of the motion “Should the English Railways be purchased by the State” (to see it defeated on the President’s casting vote),31 and against the motion “Is the scheme for the coming session as set out in the Queen’s speech satisfactory”. He also spoke against a motion to admit women members of the College to the society:32 a debate sufficiently well attended that after the speeches began, the debate had to be adjourned from the Reading Room to the Mathematical Theatre. The motion was carried by two votes, but that was insufficient to effect a change in the society’s rules, and women undergraduates continued to debate separately for some years to come. When similar issues were debated at the Cambridge Union, Scrutton consistently spoke for the cause of female emancipation: either his speech represented an assigned debating position, or else he came to see the error of his ways. Scrutton attended regularly from November 1874 to May 1875, and somewhat irregularly thereafter. In so far as it is possible to deduce such a thing from the copperplate minutes which are all that remain of the society’s transactions, Scrutton appears to have been a convivial member: 27 29

30

28 UCL Calendar 1873–4, at p. 187. Neuman, pp. 45–8. For the following see UCL/MS ADD78/A3 and 4 (minutes, 1869–76 and 1876–82) and C2 (register of attendance, 1864–77). 31 32 17 December 1874. 21 January 1875. 18 December 1875.

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he was a frequent proposer of new members (including his cousin and his brother) and a supporter of candidates for one of the society’s offices, and on one occasion brought a guest to a debate. However, he was unsuccessful when standing for election to the office of treasurer. Although successful for the lesser position of an extra-official member of the Questions Committee, he held the latter office for only two weeks before resigning.33 He attended only two subsequent meetings, one of them the last of the year, at which he moved the vote of thanks for the officers of the society for “their excellent conduct of the society”.

2.4 Scrutton’s Grand Tour By July 1875, Scrutton had secured his BA,34 and he appears to have spent the next few months preparing for and then sitting the entrance examination to Trinity College, Cambridge, where he obtained a place to begin in October 1876. Between December 1875 and March 1876, he went on a “grand tour” of southern Europe and the Near East, a tour which was organised by Thomas Cook and paid for by his father. The events of the tour are chronicled in immense detail in a tour diary, comprising 220 quarto pages of longhand, in three volumes, each of which bears the legend “T.E. Scrutton – private”.35 The first entry finds Scrutton in the Lord Warden Hotel, Dover, writing at 10.00 p.m. on 20 December 1875: “I have begun today a tour in Italy, Greece, Palestine, a holiday after 12 months working for examinations. My father paid for this trip and I hope I thoroughly enjoy it.” Much of his time appears to have been spent in the company of English families undertaking similar tours, and it provided the opportunity for a range of cultural experiences, using that term in its broader sense. At Nice Scrutton had “some Vermouth – beastly stuff – for the first and last time”. France was swiftly followed by nearly forty days in Italy, spread among eight cities; four days in Greece (where the temples made a particular impression); and nine in Egypt and Palestine, where he stayed until at least 11 March 1876 – even Scrutton’s enthusiasm for his diary was running out on that date in Jerusalem, unless there is a lost fourth volume. At each city, the leading

33 34 35

Minutes of 20 May, 14 October and 28 October 1875. UCL Calendar 1876–7, at pp. 139, 151. Scrutton Papers, which also contain an excellent summary and analysis of the diaries prepared by Scrutton’s grandson, Hugh Scrutton.

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historical and cultural sites were “ticked off”, their physical dimensions and history and Scrutton’s evaluation of their artistic and architectural merits faithfully recorded, as the organising mind of Scrutton on Charterparties was brought to bear on the European Grand Tour. There is something defensive in his artistic evaluation, as he tells the reader (whoever he supposed it might be) that “as my artistic taste is very often unduly deprecated, I may be pardoned if I note down the proofs of its existence in the pictures I like”. There were lighter moments: a visit with English travellers of a similar age to see a cardinal bless five lambs in Rome was described as “baa-baarous”, and queue-jumping by a “judicious flank movement” to get ahead of the locals in St Peter’s in Rome, with Scrutton “having the satisfaction of flattening against the wall an Italian who tried to squeeze past [him]”. There is also a possible hint of romance, with Miss Gray, a girl “either still at or who has only just left school”, whom Scrutton met in Venice. Initially sitting on opposite sides of the table d’hôte at dinner, and then sharing the same side when writing letters after dinner, “soon we got into an interesting squabble about jogging elbows and general interference” which ended in her emptying two ink bottles over him. There were also the occasional glimpses of Italian nobility and royalty, which suitably impressed Scrutton notwithstanding his opposition to the hereditary principle: of Princess Margherite, whom he found “rather pretty . . . in a gorgeous purple dress”, and, still more exciting, the opportunity to raise his hat to “Victor Emmanuel the Second”. Naturally there is fun to be had with Scrutton’s “Grand Tour” diary, as there would be with any journal written by a nineteen-year-old. But one can only applaud his ambition, independence and, as always, the relentless industry with which he went about accumulating and analysing experiences. This early and prolonged exposure to “abroad” can only have benefited someone who was to spend much of his life involved in the litigation of international trade.

2.5

University College again

Scrutton had not yet garnered all the prizes that University College had to offer. In the course of 1878, whilst in his second year at Trinity, he both completed the first part of the University of London LL.B., and obtained the University of London MA. All of this appears to have been done without attending any University College lectures and, in the case of the LL.B., before he had received any law tuition at Cambridge.

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a university man

Scrutton’s decision not to study law at University College was understandable. For all the high hopes which had accompanied Austin’s appointment, the progress of the study of law at UCL had been strangely faltering.36 By the 1860s, the department was in a state of “something very near to complete failure”, with its largest class – Roman law – attracting only eight students.37 A report to UCL’s Council was commissioned, which recommended that the teaching of professional subjects be abandoned, and that the College should seek to prepare candidates for the London degrees of LL.B. and LL.D.38 In the implementation of these recommendations, W.A. Hunter was appointed to a new chair in Roman law, Sheldon Amos to the chair of jurisprudence and J. Willis Bund to the chair of constitutional law and history. The class lists remained light. Scrutton may well have decided that private tuition, reinforced by energetic private study, provided a better prospect of success. The LL.B. examination was in two parts – “First LL.B.” and “Second LL.B.”. Four subjects were studied. The course in Roman law covered customary law, family law, the law of property, wills and inheritance, agency, rights in rem and in personam, universal succession and legacy and “adjectival law or civil procedure”. The jurisprudence course covered “The History of Law in connection with Government and sovereignty” and the definition of legal terms such as “Person”, “Thing”, “Right”, “Duty”, “Event”, “Will”, “Intention”, “Motive”, “Negligence”, “Fraud”, and “Malice”, with Austin’s lectures on jurisprudence, with tables, notes and fragments the prescribed course. Constitutional law and history embraced the Crown Prerogative, the Houses of Parliament, the executive and the government, and then constitutional history from the Norman Conquest through to 1688. Finally, there was at least some English law: twenty lectures on real property and ten on the law of evidence, and lectures on the “Development of English law” and on English criminal law. As Alex Frame, in a biography of one of Scrutton’s students, Sir John Salmond, notes of law at UCL at this time, It was first and foremost a system of classification with a methodological corollary: the study of law was to be purified by ridding it of speculation, metaphysics and wrangling over questions of conscience and ultimate authority . . . This accomplished, its sponsors believed, the way would be 36

37 38

For a sympathetic account of its early difficulties see George W. Keeton, “University College and the law” (1939) 51 Juridical Review 118. Bellot, p. 327. Report of the Committee on the Law Classes to the Council of the University, 1869.

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open for the drawing of a genuine “science” of law comparable to the physical sciences whose dazzling triumphs were transforming the world.39

There was much in the examinations that the modern law student – or at least one of 1980s vintage – might recognise.40 From the Roman law paper, for example: “A set a trap in his own ground in which was caught a wild boar. B released it and permitted it to escape. Has A any, and if so what, action against B?” In jurisprudence: “What are the chief points of contrast between the course of development of Roman and Hindoo law?” and “Are there any legal remedies founded neither on intention nor on negligence on the part of the defendant? If so upon what principle can they be justified?” The paper on English law asked candidates to “explain the maxim ‘the best evidence is always required’. If this is universally true, how is it that secondary evidence is used?”. Scrutton had now hit his straps, coming in the first class for the First LL.B. examination, albeit the exhibition for coming first overall went to his fellow Old Millhillian, Nathan Micklem.41 Later in 1878, Scrutton completed his MA at UCL, in what was known as “Branch III”. This required study of logic, moral philosophy, political philosophy, history of philosophy and political economy.42 Scrutton obtained first-class honours, with marks which met the benchmark for the award of the gold medal. Excellent as these marks were, they had been surpassed by another student, called William Summers, with the result that Summers got the gold medal, and Scrutton received £20 – nearly £1,000 in 2012 pounds.43

2.6 Trinity College, Cambridge Trinity was Cambridge’s largest and richest college.44 If at Mill Hill and UCL Scrutton had been on the fringes of the establishment, he was now in its mainstream. Whether by reason of the college’s wealth, the scale 39 41

42 43 44

40 Alex Frame, Salmond: Southern Jurist (1995), p. 27. UCL Calendar 1878, at p. 246. The Times, 2 February 1878. The Times for 19 January 1878 indicates that he came fourth. See also UCL Calendar 1880–1, at pp. 299, 317. UCL Calendar 1878, at pp. 49, 260. The Times, 10 July 1878; UCL Calendar 1878, at pp. 260, 271. In 1905, Trinity had 568 resident undergraduates; 65 BAs and 135 higher graduates, as against figures for the University as a whole of 2,835, 363 and 642. W.W. Rouse Ball, Trinity College Cambridge (1906) (“Rouse Ball”). In 1874, Trinity had 583 undergraduates out of a university population of 2,229. Robert Ackerman, J.G. Frazier: His Life and Work (1987), p. 319. n. 5 (“Ackerman”).

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and grandeur of its buildings, the number of its members and their dominance of university institutions, or perhaps the selection of a “Trinity-type”, Trinity men tended to see themselves as men apart. Henry Campbell-Bannerman recalled, When he and his Trinity friends walked about Cambridge, they were of course aware that there were other oldish buildings somewhat resembling their own and saw other men walking about clad in garments of a similar description, but as to who they were and what were their occupations and who tenanted those buildings they were quite indifferent and had no desire to know.45

Scrutton was admitted as a Pensioner – a fee-paying student without a scholarship – on 11 October 1876,46 reading Moral Sciences: “Moral Stinks” in the student vernacular of the day.47 At twenty, he was almost two years older than most students: that, and his time at UCL under Croom Johnson, were no doubt an advantage in the early years of study, albeit they emphasised that he had followed a rather different path than had the majority of his fellow students. The Moral Science Tripos had had a short and relatively unsatisfactory history when Scrutton arrived in Cambridge.48 When established in 1848, the course did not lead to a degree,49 and the course embraced not just philosophy and political economy, but also modern history, general jurisprudence and the laws of England, the order of merit being determined “by estimating the aggregate merits of each student in all the subjects of the examination”. In March 1867, regulations were made which led to history and jurisprudence being dropped, and political philosophy introduced, producing the more orthodox combination of moral and political philosophy, mental philosophy, logic and political economy which Scrutton embarked upon. The Cambridge staples of Plato, Euclid, Samuel Clarke, Newton and Bacon had by this time been supplemented by Hegel and Kant. Even so reformed, the degree enjoyed 45

46

47 48

49

J.A. Spender, The Life of Rt. Hon. Sir Henry Campbell-Bannerman G.C.B., Vol. II (1923), p. 343. W.W. Rouse Ball and J.A. Venn, Admissions to Trinity College Cambridge, Vol. V, 1851– 1900 (1913), p. 548. T.R. Glover, Cambridge Retrospect (1943), p. 133 (“Glover”). D.A. Winstanley, Later Victorian Cambridge (1947), pp. 185–90; John R. Gibbins, “Constructing knowledge in mid-Victorian Cambridge”, in Jonathan Smith and Christopher Stray, Teaching and Learning in 19th-Century Cambridge (2001), pp. 61–88 (“Smith and Stray”). This changed in 1860.

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a poor reputation, it being believed that it did not test “the general capacity and intellectual vigour of a student”. This led to a vicious circle – the Trinity don Henry Sidgwick, a strong and ultimately successful proponent of reform of the Moral Sciences Tripos, remarked, The standard of a first class is low because the most able and industrious men do not devote themselves to the study; they do not devote themselves to its study because it is not rewarded; and it is not rewarded because the standard of a first class is low.50

Winstanley notes that the tide turned not long after Sidgwick had voiced these laments. Between 1870 and 1880, William Cunningham, F.W. Maitland, James Ward, J.N. Keynes and T.E. Scrutton were placed in the first class of the Tripos, and it therefore could no longer be said that the moral sciences were failing to attract really able men.51

The impression left is of a subject still in a state of transition when Scrutton arrived, with the extent of that transition yet to achieve universal recognition. The system at Trinity at this time was for each student to be under the supervision of tutor, who, together with the assistant tutor appointed by him, would be responsible for all the tuition of the students under their charge. As a result, it was common practice for students to retain private tutors.52 Thomas Thornely, in recollections of Cambridge of this time, recalled, The best work was done in the privacy of our rooms, for the college lectures were indisputably poor and regarded more as a form of discipline than as a means of advancing knowledge. “University lecturers” had not yet been created and inter-Collegiate lecturers were rare, while professors catered only for the more advanced students, if indeed they were condescended to lecture at all. To supplement this inadequate teaching, private tuition was largely resorted to by those who could afford the luxury.53

In addition to tutorials, lectures in “several branches” of the Moral Sciences were “given by the Professors of Moral and Political Philosophy, and by lecturers in Trinity, St. John’s, Caius, Queens’ and St. Catherine’s”.54 50

51 53 54

An article in the University Reporter of 26 October 1870 cited in Winstanley, p. 189. See also “Philosophy at Cambridge”, (1876) 1 Mind 224, in which Sidgwick expressed similar concerns. 52 Winstanley, p. 189. Rouse Ball, p. 9. Thomas Thornely, Cambridge Memories (1936), p. 26 (“Thornely”). Student’s Guide to the University of Cambridge (1874), p. 198.

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The quality of Scrutton’s experience at Trinity is likely to have been better than Thornely’s at its poorer cousin, Trinity Hall, but the structure of education on offer would have been the same. Scrutton’s tutor at Trinity was John Maxwell Image, who taught Classics between 1877 and 1885.55 The name should not mislead: College tutors do not necessarily teach but only exercise a general supervision over the doings and misdoings of undergraduates, informing them where the special instruction they need can best be obtained, bailing them out after collision with the police, and when possible, preventing them from getting engaged to their landladies’ daughters.56

It can safely be assumed that Scrutton did not cause Image much difficulty in these departments: Image spoke warmly of Scrutton, remarking that “no one can meet Mr. Scrutton without being struck by his industry and energy of character. Quick and clear of apprehension, he also has the power of making his meaning clear to others”.57 Scrutton had private tuition in political economy from Joseph Shield Nicholson, later professor of political economy at Edinburgh University. Shield was a close friend of J.G. Frazier, a Trinity undergraduate who overlapped with Scrutton and in later life wrote the major work of anthropology, The Golden Bough.58 Nicholson’s comment on Scrutton – that “he never had a pupil who showed such perseverance and capacity for arranging old ideas and assembling new material” – has a particular resonance for students of the latter’s textbook and judgments.59 He was also taught in his first year by Henry Sidgwick – another of the heavily bearded figures who loomed large in Scrutton’s early intellectual development. Sidgwick was a complex figure, both intellectually and sexually: his biographer describes him as “Victorian philosopher, social scientist, literary critic, educator, reformer, and parapsychologist”.60 The leading utilitarian philosopher of his era, and author of a work of 55

56 57

58 60

Information from Trinity College, Cambridge. On Image see (1919) 41 Cambridge Review 112, by A.E. Houseman, who notes, “he was a sound and elegant classic”, and as tutor was remembered for “discharging his office with efficiency and success. His pupils remembered him as one who showed even more than the usual concern of a Tutor for their welfare and improvement”. Thornely, p. 50. Report on Application for the Professorship of Constitutional Law and History UCL/ AM/C/110. 59 See Ackerman, p. 25. UCL/Apps/1882. On Sidgwick see Professor Bart Schultz’s monumental work, Henry Sidgwick: Eye of the Universe (2004) (“Schultz”), p. 1.

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lasting influence in The Methods of Ethics, he also devoted himself to less orthodox intellectual pursuits, as the founder of the Society for Psychic Research.61 He received mixed reviews for his skills as a lecturer: W.R. Sorley referred to his teaching as “a training in the philosophical temper – in candour, self-criticism and regard for truth”, but both Bertrand Russell and G.E. Moore professed to find him dull. Russell claimed that he told one joke per lecture, and that after the suspense of awaiting its appearance had passed, attention flagged.62 Arthur Balfour, who was taught by Sidgwick and later became his brother-in-law, speaks more kindly of him as a tutor: In addition to his other lectures, he had at the time a small class for those specially interested in the metaphysical side of the “moral sciences” Tripos, a class so small indeed that it consisted, if I remember right, only of one other student beside myself. We met in Sidgwick’s own rooms. The teaching was largely in the nature of conversational discussion . . . I retain a vivid recollection of the zest with which these hours were enjoyed.63

It is not clear whether Scrutton benefited from such tutorials, but Sidgwick had a high regard for him. He said of Scrutton that “he always regarded him as a student of first-class ability” and that “what he wrote was always adequate in treatment and rigorous in style, exhibiting independence and consistency of judgement based on a solid foundation of reading and study”.64 He also recalled Scrutton’s “gentility of manner and address”. Scrutton had an equal regard for Sidgwick. Years later, when asked by the publisher John Murray to comment on a jurisprudence manuscript submitted for publication, he responded that if the author’s work were to be “a commercial or literary success or indeed to deserve success of either kind”, then “I should recommend him to read carefully the last section of Mr. H. Sidgwick’s ‘Methods of Ethics’”.65 Although the Tripos involved one set of examinations taken after nine or ten terms, there were college examinations at the end of the first and

61

62 64

65

Before his death, he left a text in a sealed envelope which was opened eight years after his death, to be compared with the efforts of psychic researchers relying on communications from Sidgwick from “the spirit world” to divine its contents. There was a “nil” return. Schultz, p. 722. 63 Schultz, p. 25. Quoted in Schultz, p. 292. Report on Application for the Professorship of Constitutional Law and History UCL/ AM/C/110. Scrutton to John Murray, 9 April 1885, John Murray Collection, NLS/MS41075.

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second years.66 These were intense affairs, intended to excite “industry and emulation among the younger men and exalting the character of the college”,67 and those who did not make the grade were sent to “try the air of some smaller, less demanding college”.68 Scrutton plainly did well in his first set, and on Sidgwick’s recommendation he was awarded a Foundation scholarship at the end of the first year.69 Thereafter Scrutton dined regularly at the table reserved for scholars in Hall.70 Sidgwick and Scrutton were contrasting figures. Sidgwick was a strong proponent of women’s education and advancement, being one of the founders of Newnham College, but combined that enlightened view with a strong opposition to Irish Home Rule.71 Scrutton had similar views on the first issue, but took a strong contrary line on the second. Scrutton obtained first-class honours in the college examinations for Moral Sciences at the end of his second year, winning prize books which it is to be hoped were more valued than those obtained from Mill Hill.72 The following year brought the Tripos: fourteen three-hour examinations taken over nine days in which three years’ worth of knowledge was examined in one set of examinations: the division of the Tripos into separate parts did not take effect until the 1880s. He came third among those who obtained first-class honours,73 in what one observer recalled as “a remarkably good year”.74 In the same year in which he graduated near to the top of the Moral Sciences Tripos, Scrutton pulled off the distinct coup of winning the Senior Whewell scholarship in international law.75 The scholarships had been established in the will of Dr Whewell – pronounced so as to rhyme with “fuel” – in 1867:76 a legendary Cambridge figure whose achievements included the mastership of Trinity, published works on a wide range of subjects, and, on his own authority, rearranging the paintings in the Fitzwilliam Museum so that “the undraped figures should not be too 66

67 68 69 70 71 72 74 75

These had been introduced in 1790 to provide some benchmark on the students’ progress to the Tripos examination. Rouse Ball, p. 31. See also Jonathan Smith, “Trinity College annual examinations in the nineteenth century”, in Smith and Stray, Teaching and Learning in Nineteenth-Century Cambridge (2001), 122. J.H. Monk, The Life of Richard Bentley DD, Vol. I (1833), p. 160 n. 22. C.A. Bristed, Five Years in an English University (1852), p. 95. The Times, 17 April 1877. J.J. Thomson, Recollections and Reflections (1936), p. 54 (“Thomson”). On Sidgwick and Newnham see Schultz, pp. 482–90; and on Home Rule pp. 565–7. 73 The Times, 2 July 1878. The Times, 14 June 1879; UCL/Apps/1882. J. Shield Nicholson, Scrutton’s private tutor in political economy. UCL/Apps/1882. 76 The Times, 16 June 1879. The Times, 28 November 1867.

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painfully exposed”.77 Two scholars were to be elected each year, one receiving £100 a year for four years, and the other £50 a year, with up to eight scholars in existence at any one time. The successful candidates were chosen by a committee composed of the vice-chancellor, the master of Trinity College, the Regius Professor of Civil Law, the professor of moral philosophy, the Downing Professor of the Laws of England and the professor of political economy, the selection being made on the basis of performance in examinations in moral and political philosophy and international law.78 The scholarship was worth £4,800 a year in 2012 currency, and its terms committed Scrutton to remaining in residence in Cambridge for another four years. The year after winning this honour, Scrutton wrote a letter to the Cambridge Review containing an analysis of the questions asked over the previous five years, intended to show that the examiners were repeating the same set of questions and topics year after year. He complained, This being so, one is tempted to ask whether the examiners have not set before themselves the promotion of the “Art of Cramming” by means of the study of International Law and ethics. Or are they of the opinion that a good examination is a good thing and should not be lightly altered but may be continued with advantage with verbal modifications for six years or so.79

Herbert Stephen, son of James Fitzjames Stephen, replied, protesting at “a letter evidently prompted by a truly filial desire for the welfare of the foundation of which he is so distinguished an ornament”.80 By this time he had already determined on a career at the Bar. He joined the Middle Temple at the start of his second year,81 and took time to sit his examinations in Roman law, international law and jurisprudence in the Hilary term of 1878.82 At the same time, he obtained a scholarship in the sum of fifty guineas from the Middle Temple in international and constitutional law.83 The success he achieved in legal 77

78 80 81

82 83

Percy Craddock, Recollections of the Cambridge Union, 1815–1939 (1953), pp. 8–9 (“Craddock”). 79 The Times, 25 March 1871. The Cambridge Review, 25 February 1880. The Cambridge Review, 10 March 1880. 31 October 1877. H.A.C. Sturgess, compiler, Register of Admissions to the Honourable Society of the Middle Temple from the Fifteenth Century to the Year 1944, Vol. II, 1782– 1909 (1949), p. 417. CLE Archive A.CLE11/2, at p. 73. He came fourth among the candidates. The Times, 28 January 1879.

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examinations is all the more remarkable when allowance is made for the fact that he prepared for and sat these examinations in the course of the final year of his Moral Sciences Tripos. Previously the “nearly man” – with varying degrees of proximity in the various subjects he had studied – in academic terms Scrutton had now arrived. The qualities which in other subjects had carried him to the upper echelons of achievement but left him short of the supreme prize – the ability to collate and absorb substantial volumes of material, synthesise it, distil its essence and then apply that essence in a range of contexts – were the virtues which law prized above all others. Scrutton embarked on the Cambridge LL.B. the following year. The subjects examined were Roman law, jurisprudence, international law, “certain departments of English law” and “a topic of Constitutional Law and History”, followed by a “defence” of his papers before his examiners. When he revisited Cambridge as a Court of Appeal judge in 1920, Scrutton suggested that his engagement with the law course had been limited: I have grateful memories of lectures by one Dr. Courteney Stanhope Kenny – who is still with us – and it was one of the proudest moments of my life when I corrected him on a question relating to income tax. I attended some of the lectures given by the then Regius Professor, which were far too good for me, and I am afraid I did not trouble much with the rest of the Law School of Cambridge of that day. The consequence was that I believe for the last three years I was here I never went to a law lecture. I did worse; I never even went to a coach.84

However the statement was modest, and falsely so. Scrutton was taught by C.S. Kenny – later to write the celebrated text book Outlines of Criminal Law – who, like Scrutton, held the office of president of the Cambridge Union Society. He recalled Scrutton as “not only a student of the highest ability but also a clear and fluent speaker”.85 Thomas Waraker, who lectured in law at Trinity Hall and gave private tuition in law – the “coach” later denied by Scrutton – recalled that Scrutton “showed much grasp of the subjects and an accurate and discriminating knowledge and treatment of them which gave me a very formidable impression of his ability and application”. Scrutton’s jurisprudence

84

Scrutton, “The work of the commercial court” (1921) 1 C.L.J. 6.

85

UCL/Apps/1882.

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lecturer was Professor Edwin Charles Clarke – the Regius Professor of Civil Law referred to. He “formed a very high opinion” of Scrutton’s “working capacity and . . . power to deal with the difficult subject, jurisprudence”, stating that Scrutton’s marks in the Law Tripos were “universally high throughout and the aggregate was a high one”.86 Scrutton finished first in the first class,87 his examiners being Professor Clark, Mr Waraker, A.C. Humphreys-Owen and Frederick Pollock.88 Impressive as these achievements are, Scrutton’s life at Trinity was more than a sequence of examination successes. Then, as now, Cambridge offered a considerable number of extra-curricular opportunities, and Scrutton’s relentless academic success did not prevent him partaking of them. He was something of a “Cambridge figure”: when he became senior jurist in the Law Tripos, the Cambridge Review reported the latest success of “T.E. Scrutton, of Moral Science and Union celebrity”.89 He was chiefly renowned for his industry and his beard: the latter sported in ignorance of advice in the Granta to those coming up to Cambridge that “above all, if you should happen to have grown a beard between the time of your leaving school and coming up here, cut it off and cast it out. You will be better liked without it”.90 Percy Craddock said he “distinguished himself above all others for his relentless industry” and said of him, “a large, bearded, ungainly man, his relaxations were few”.91 The entry in the Oxford Dictionary of National Biography suggests of his time at Cambridge that “he was thought to have been the only Englishman of his time who never shaved in his life”.92 As with a number of statements made in Scrutton’s entry, the comment is of questionable accuracy: T.B. Simpson, in his review of the Dictionary of National Biography, observed that “the statement that T.E. Scrutton was ‘possibly the only Englishman of his time who never shaved in his life’ was not only a ludicrous exaggeration but ignores Scrutton’s more urbane contemporary Sir Henry Warren . . . who was certainly the possessor of what used to be called a ‘virgin beard’”.93 But what is significant is that the “virgin beard” story stuck with sufficient grip to be repeated in a biographical entry written some time after Scrutton’s death. Scrutton’s undergraduate

86 87

88 90 93

UCL/Apps/1882. UCL/AM/C/89 Report of the Committee on Fellowships Presented to the Council, January 14th, 1882. 89 Daily News, 24 December 1880. Cambridge Review, 9 February 1881. 91 92 Glover, p. 119. Craddock, p. 66. Oxford Dictionary of National Biography. T.B. Simpson, “DNB”, (1950) 29 No. 108 Scottish Historical Review 173.

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beard was clearly something that gripped the contemporary imagination: a barrister who appeared in front of Scrutton in one of his most remarkable judgments told readers of his autobiography that Scrutton was “a marked individualist – even in his undergraduate days he wore a beard!”94 That beard, and Scrutton’s relentless academic success, have contributed to a lasting image of Scrutton’s student-self of severity, and personal austerity, an image which does not appear to have been justified. In particular, Scrutton’s Cambridge relaxations were not as few as Craddock supposed. He joined the First Trinity Boat Club. There is no evidence that he rowed to any serious extent, but the club was something of a social centre in the college – it had 205 members in 1876, a considerable proportion of the undergraduate population, and its annual ball was a social fixture.95 We know that he met his wife, Mary Burton, prior to his period at Cambridge and presumably she attended at least one such event.96 Scrutton played tennis, football and lacrosse,97 and was an active cyclist.98 All of these were “modern” sports or pastimes. In particular, Scrutton made significant contributions to three student societies: the Moral Sciences Club, the Bicycling Club and the Cambridge Union Society.

2.7 The Cambridge University Moral Sciences Club The Cambridge University Moral Sciences Club (CUMSC) is perhaps best known for the occasion when Ludwig Wittgenstein waved a hot poker at Karl Popper, demanding an example of a moral rule,99 an incident which formed the subject of David Edmonds and John Eidinow’s Wittgenstein’s Poker. Less well known is that Scrutton was a founder member, and that the first reading of a paper at the club took

94 95 96 97

98 99

J.D. Casswell QC, A Lance for Liberty (1961), pp. 50–1. See generally W.W. Rouse Ball, A History of the First Trinity Boat Club (1908), Chapter 8. Oxford Dictionary of National Biography. See Chapter 3. Lacrosse was very much a “new sport” in England in the 1880s, its popularity growing on the back of tours of Canadian players organised by Dr W.G. Beers (see Donald M. Fisher, Lacrosse: A History of the Game (2002)). I have not found any record of Scrutton playing lacrosse at Cambridge but he played in goal for Clapton against Cambridge University on two occasions in 1886. (1886) 7 Cambridge Review 250, at p. 296. Family History, p. 32. Popper claims to have replied, “not to threaten speakers with pokers”.

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place in his rooms.100 This event might be said to have marked the humble beginnings of a philosophical dynasty: Scrutton’s granddaughter, Mary Midgley, became professor of philosophy at Newcastle University and one of Britain’s most distinguished post-war moral philosophers.101 CUMSC was “first founded” in 1874, but that organisation lapsed in 1876. Alfred Caldecott – a third-year in St John’s – took up the challenge anew, hosting the first meeting of the revived society in his rooms on 19 October 1878. It was announced that the club was “an association for the purpose of discussion among members of the University reading Moral Sciences”, and that its name had been chosen “to maintain the historical connection with a similar association of the same name which ceased two years ago”. The nine present included a number who would later distinguish themselves: in addition to Scrutton, Caldecott became professor of logic and mental philosophy at King’s College London; Joseph Jacobs (a friend of George Eliot) became president of the Jewish Historical Society, and Alfred Mummery obtained the chair in logic and metaphysics at King’s College London. It was decided that club meetings would take place each Saturday in full term at nine o’clock in the evening,102 that membership would be restricted to those studying Moral Sciences and that the first meeting would take place in Scrutton’s lodgings at 37 Sidney Street, a short distance from Trinity, a week later. Caldecott read that first paper to an audience of twenty-eight – suggesting that Scrutton’s rooms were of generous proportions. Those present heard, and then discussed, a paper on “Development Theories of Conscience”. The following week’s paper was by Scrutton himself on “Free Will”. Papers ranged across the Moral Sciences syllabus, with a surprising bias towards economics (or “political economy”). Over the remainder of the year, Scrutton heard Mr Whitehead on “Unconvertible paper money”; Mr Wilkinson on “The Law of Self-Conservation”; “Time and Space” (once again in Scrutton’s rooms); “The Influence of Trades Unions upon Wages”; “Consistency and Real Difference”, “Axioms”; “Instinct and Reason”; “Depression in Trade” and “The Modern Science 100

101

102

The following account is drawn from the minutes of CUMSC at CU/Min.IX/39 and CU/ Min.IX/40. See also Jack Pitt, “Russell and the Cambridge Moral Sciences Club” (1981–2) 1 No. 2 Russell, 103. Dr Midgley delivered a paper to the CUMSC many years later, unaware of her grandfather’s formative role. On which basis it is clear that Scrutton, unlike his tutor Henry Sidgwick, was not a member of the more famous Cambridge philosophical discussion group, the Apostles, who already met on Saturday evenings.

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of Economics”. There were also less theoretical topics – on 1 February 1879, it was agreed that a delegation of members would go and see Henry Sidgwick to discuss altering the papers for the March Inter-collegiate examinations in the Moral Sciences (with seven members, including Scrutton, declaring an interest in the subject under debate). The following week, it was reported back that Sidgwick had agreed to raise their concerns with his colleagues. Scrutton’s membership continued after he had completed the Moral Sciences Tripos. Caldecott resigned the post of secretary on 18 October 1879, “owing to the approaching Tripos”. Scrutton hosted another meeting on 1 November 1879, at which a paper on “Sleep and Dreams” by Mr Williamson of St John’s was read and discussed, and he gave a further paper entitled “Mr. Spencer’s Data of Ethics” on 8 November 1879: Herbert Spencer’s work of utilitarian and libertarian political philosophy had been published earlier that year. In early 1880, Scrutton supported the motion encouraging junior graduates in Moral Sciences to give papers, nominating his own political economy tutor, J. Shield Nicholson, to give the first such paper.103 He was also the prime mover in getting another of his tutors, Henry Sidgwick, to become president of the club,104 an association of more benefit to the club than to Sidgwick. Scrutton’s next paper was on “Heredity in Political Philosophy” – postponed for a week, when only three members, including Scrutton himself, turned up for the meeting at which it was due to be read. He continued to attend meetings to the end of 1880, in the course of his last year in Cambridge. His last paper – reflecting what we will shortly see to have been an issue of great importance to him – was entitled “The Irish Land Question”, and it was “afterwards discussed in detail”.105 In the course of that last year, he participated in discussions on topics such as “The Notion of Justice”, “Art in relation to Psychology”, “The Foundation of Ethics”, “Steps to the Hegelian Standpoint” and “Schopenhauer and Modern Prussianism”. The topics suggest a seriousness of purpose, but the club had more frivolous moments. That lighter atmosphere emerges from the rather fuller minutes of a later meeting written by G.E. Humphreys of Gonville and Caius: 103

104 105

CUMSC minutes of 4 February 1880. The paper – “German socialism and its relation to English political economy” – was given in Scrutton’s rooms on 13 March 1880. CUMSC minutes of 4 and 21 February and 6 March 1880. CUMSC minutes of 6 November 1880.

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After the minutes of the last meeting had been read (by Mr. Frost in the absence of the Secretary) and approved, there was a long and unusual break in the continuity of the proceedings from the fact that the reader of the paper did not make his appearance until 5 minutes to 10 o’clock. The excuse given was that having retired to the Gog hills to meditate upon some unusually obscure Hegelianisms he had become so lost in thought that it was only when the curfew broke upon the current of his reflections, that he remembered that he was still a being belonging to this world, to Cambridge and to the Moral Sciences Club. With this preface, Mr. Rees proceeded to read his paper on “The Philosophy of History”.

Scrutton cannot claim to be either the only (or even the most senior) judge to have delivered a paper at CUMSC. R.B. Haldane, future Lord Chancellor, presented a paper on “Hegel and the Psychologists” on 9 February 1895. But whilst Haldane’s philosophical achievements are well known – and the claim to a “spiritual” affinity with German culture to which they gave rise became notorious – Scrutton’s accomplishments in this area have been obscured. The process of defending a paper against the criticism of young and well-informed minds must have been good preparation in both cases for the future life as an advocate. Haldane was later to say of his pupillage in Old Square Chambers, Lincoln’s Inn, “Nothing in this region seemed difficult in comparison with sifting the books of the German metaphysicians.”106 There is no record of Scrutton making a similar observation about his early life at the common law Bar. It is not one which is apt to endear the philosopher to the lawyer.

2.8 The Cambridge University Bicycling Club Of all Scrutton’s Cambridge pastimes, it is the image of Scrutton the cyclist which is the most incongruous. Cycling was very much the fashion in Cambridge of the 1870s and 1880s – it has been suggested it was “a pastime rivalled only by the boat club in prestige and expense”.107 The Cambridge University Bicycling Club (CUBiC) was founded in February 1874 by a group of Trinity men. Starting with eleven members, it had well in excess of 200 by the time Scrutton joined.108 106 107

108

Richard Burdon Haldane, An Autobiography (1929), p. 31. Although looked down on at Trinity Hall, where Thomas Thornely, at pp. 20–1, tells us that “Cycling, again, was a novelty and deemed a scarcely respectable form of exercise when horses could be hired and all suitable muscle was needed on the river”. Save where otherwise indicated, the information derives from the archives of CUBiC in Cambridge University Archives/SOC.80, from information supplied by John Green, the

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Its objective was “to encourage proficiency in Bicycling among members of the University, by arranging for races &c.”. CUBiC had a club house with a “man to be on spot all day at the club room”, and from 1877 its own gravel racing track, leased from Trinity College. The bicycles in question – known as “ordinaries” – were “high bicycles” of the penny-farthing type: the club had a “Timberlake” high bicycle and members could acquire the “Coventry” high bicycle at a discount. Riders began from a standing start, and there were no brakes. It is likely that Scrutton had his own machine, which could be kept at the club at a cost of £3.00 a term. Scrutton is listed as joining the club in 1876, shortly after arriving in Cambridge: he was proposed by the club secretary, H.M. Bower, part of a strong Trinity presence which included the star cyclist of Scrutton’s era, the Honourable Ion Keith-Falconer (a future British amateur champion).109 The club’s activities might loosely be divided into leisure cycling and racing. The former involved long runs in the countryside, very often to and from a convenient railway station. The club’s handbook gives some insight into both the risks of the activity and the character in which the participants undertook it: a horse was never to be overtaken “on both sides at once”, “foot passengers on the roads should not be needlessly shouted at, but should always be given a wide berth”. The club would always pay the expenses of any member “who successfully prosecutes a person for stone-throwing, obstructing the way or other mischievous interference with Bicyclists”.110 And a member riding in company was asked never to bring a dog with him, “however well he may have trained him to follow him when alone”. In 1879, Scrutton contributed a report on a CUBiC “hare and hound” race, Scrutton, one of the chasing pack, pursuing fellow Trinitarians Keith-Falconer and Trotter “at a pace, to say the least, warm”, but in vain.111 Racing presented the club in its more serious side. Scrutton’s first race was a four-mile handicap trial heats race in December 1876.112 He was

109 110

111 112

leading historian of CUBiC, from John Green’s “The Cambridge University bicycle path – its inception and use” in Cycle History 13: Proceedings of the 13th International Cycling History Conference (2002), and from “Victorians awheel”, an article in The Times, 18 March 1959. CUBiC/SOC80.1. Thornely, at p. 22, recalls that coachmen of the period had “a stout cord and a lump of lead” to overturn “these new intruders of the road”. London Bicycle Club Gazette (1879), p. 40. Save where otherwise indicated, these are taken from race cards in the CUBiC archives.

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given a 440-yard start, but was unplaced. November the following year saw him racing again in the final heat of a six-mile race, once again unplaced. There was more success in a one- mile race in March 1878, winning his heat, but he was well beaten in the two-man final by a celebrated Trinity rider, A. Trotter.113 In May, Scrutton made the final of a two-mile handicap race, but was unplaced despite a 400-yard head start. In the start of his third year, the records show him dropping out of two higher-profile races: a one-mile handicap race against KeithFalconer, and as one of the team of CUBiC cyclists who paced the English professional champion, John Keen, who was attempting to reach twenty miles an hour on the club’s track.114 This was a controversial event, the amateur ethos of university sport in this era conflicting with the desire of the club’s leading cyclists to test themselves against the very best.115 There are records of two further attempts: success in the heat of a onemile handicap in October 1879 (with the benefit of a 125-yard start),116 after which he was unplaced in the final, and in November 1880 he was unplaced in a one-mile handicap despite a 125-yard start. Cycling appears to have provided Scrutton with his first judicial experience: the archives of CUBiC show him judging and officiating at various races between October 1878 and 1880. He was one of two judges at a meeting between CUBiC and the London Bicycle Club in May 1879,117 and again the following year.118 In 1882, when the annual Oxford–Cambridge bicycle race was held “before a large number of spectators”, Scrutton was one of two judges.119 He was elected a life 113

114 115

116

117 118

119

For a report on the four days of CUBiC “terminal races” see The Times, 29 March 1878, which noted that “additional interest is lent to the meeting from the fact that the results of the races form a basis for selecting representatives to compete against Oxford next term”. Unfortunately a blue – even an unofficial one – was outside Scrutton’s reach. The attempt was unsuccessful: he covered eighteen miles and 300 yards. See John Green, “The Cambridge University Bicycle Club and its stance on amateurism”, paper presented to the International Cycle History Conference held in Prague in 2010. It will in due course appear in the 21st ICHC Proceedings. See also The Times, 29 October 1879, recording that C.A.E. Pollock of Trinity had started in Scrutton’s place in the final heat of the one-mile handicap. The week before Scrutton had acted as starter at a CUBiC road race for the fifty-mile challenge cup. London Bicycle Club Gazette (1879), p. 267. The Times, 23 May 1879. London Bicycle Club Gazette (1880), pp. 50 (Scrutton proposing “three cheers for the L.B.C.”) and 95. Rule 15 of the CUBiC racing rules provided that two judges should be appointed, whose decision should be final, and in the event of disagreement an experienced bicyclist who had been appointed as referee would decide the matter. The Times, 8 May 1882. The Oxford judge was the Reverend C.D. Crofton MA.

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member of CUBiC in Easter 1878, and served as assistant treasurer from November 1879 to 1880. These offices were clearly not attained by reason of cycling prowess, and must have reflected both a considerable degree of respect and – let it be said – popularity within the club. In view of the controversy which was to surround Scrutton’s personality as a judge, his Cambridge career reveals a surprisingly “clubbable” figure.

2.9 The Cambridge Union The Cambridge Union Society was founded on 13 February 1815, by the friends of a candidate for one of three existing debating societies who had been blackballed.120 From these unpromising beginnings, it became, in Edward Bulwer Lytton’s couplet, “that clubroom, famous then, where striplings settled questions spoilt by men”. It moved into a new building designed by Alfred Waterhouse in 1865, its debating chamber built on House of Commons lines (although, in stark contrast to its Oxford counterpart, no former president of the Cambridge Union has ever answered Prime Minister’s Questions at the Dispatch Box). As Professor Ged Martin has shown, the Cambridge Union of the nineteenth century was very much a venue for public speaking rather than debating in its true sense – the dissection of an opponent’s arguments, the rigorous exposure of flaws in logic or errors in fact.121 As such, it might be thought a better training ground for a political than a legal career, although Union presidents achieved more in the latter field than in the former. Scrutton’s Union career was over before the practice of inviting “big-name” speakers developed in response to the Home Rule crisis of 1886: the stars in the Union’s firmament were its own. Sir Charles Dilke, Union president in 1864 and later a scandal-mired Liberal MP, described the Union speaking-style as one of “common-sense discussion in well-worded speeches with connected argument, the whole to be spoken loud enough to be heard, and with sufficient liveliness to convince the hearers of the speaker’s interest in what he is saying”.122 120

121

122

Craddock provides an entertaining account. See also Stephen Parkinson, Arena of Ambition: A History of the Cambridge Union (2009); and Ged Martin, The Cambridge Union and Ireland, 1815–1914 (2000) (“Martin”). Martin, Chapter 7, reviews and exemplifies the Union style over the century following Waterloo. S. Gwynn and G.M. Tuckwell, The Life of Sir Charles W. Dilke, 2 vols., Vol. I (1917), p. 33.

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Older than most other undergraduates, and with two years of debating at UCL under his belt, Scrutton joined the Cambridge Union in his first term and made an immediate impact.123 He was on the order paper in the second debate of the term – albeit as seventh speaker – speaking in favour of a motion which would have been of some interest to his father: “That this House disapproves of the system of compulsory religious education in Government Schools”.124 In the same term, he was on the order paper on motions opposing “the proposed railway from Windermere to Keswick” and in favour of admitting women “in the study and practice of medicine”.125 These youthful sentiments may be contrasted with those later expressed by the Court of Appeal judge forty years later, in which capacity he remarked of a long case that “there was no woman on the jury and that was an advantage where heavy business transactions had to be conducted”.126 In his second term, Scrutton introduced and was the principal speaker for the motion “That in the opinion of this House a system of Government which, reserving for the Imperial Parliament the consideration of affairs of Imperial importance, should give local self-government to the Irish nation would be beneficial both to Ireland and the Empire”.127 Although wordy, the sentiments of the motion were clear, and distinctly unfashionable: Gladstone had yet to come out in favour of Home Rule, and only two speakers (including Scrutton) could be found to support the motion, with seven against. It was defeated by ninety votes to sixteen.128 The following term he again introduced the motion and was the principal speaker: a motion on the need to amend the existing burial laws.129 Motions on burial and cremation were a staple of both the UCL debating society and the Cambridge Union, providing a surreptitious means of 123

124 125

126 128

129

The following extracts are taken from Vols. 21 and 22 of the Minute Books and the Secretary’s Minute Book of the Cambridge Union Society held in the Manuscripts Department of Cambridge University Library. Minute Book, 31 October 1876. The motion was lost 56:61. Minute Book, 14 November 1876 (motion carried 56:33) and 28 November 1876 (motion lost 53:73). He also spoke in favour of approving “the principles of a bill removing the electoral disabilities of women in parliamentary elections” on 19 February 1878 (defeated 136:51) and in “sympathy with the movement for the higher education of women” on 13 May 1879. 127 Obituary, The Times, 21 August 1934. Minute Book, 13 February 1877. He found himself supporting a more popular cause when speaking in favour of the existing system of capital punishment on 13 March 1877. Minute Book, 8 May 1877. A motion in favour of cremation was carried on 29 May 1877 by fifty-seven votes to forty-two.

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debating issues of religious controversy which could not be placed directly on the order paper. Scrutton ran for election to the Union’s committee in the first term of his second year, but he finished well outside the top six places.130 He was unsuccessful again in the Lent term,131 but remained a prominent speaker on “liberal” causes: he led the speeches against a motion that “the concession of Home Rule to Ireland would be detrimental to the interests of the country and the English Empire” (it was carried by ninety-three votes to eight) and was the fourth speaker opposing a motion censuring the conduct of the Liberal Party.132 He was finally elected to the committee in the Easter term.133 His great campaign of the term was to persuade the Union to subscribe to the Bicycling Times, and he appears to have persuaded a number of CUBiC members to support him in the society’s “Recommendations Book”. His first motion failed to secure the requisite three-quarters majority.134 His attempt to renew the motion at a private-business meeting was rejected because the requisite copy had not been deposited in the Reading Room a week before. His complaint – “what advantage is gained by the use of the Recommendations Book if the wishes of many members expressed therein are disregarded by the committee?” – received a suitably facetious response: “None except perhaps that it contains the autographs of nearly 90 bicyclists”.135 Undeterred, he raised the issue – this time with success – in the Michaelmas term of his third year.136 That same term, he was re-elected to the committee – fourth in the poll – and introduced and was principal speaker on a motion condemning Disraeli’s foreign policy: a motion lost by 137 votes to eighty-five, about six months before the country delivered a very different verdict following Gladstone’s Midlothian campaign.137 The innate Toryism of the Union of this period, and the opposing direction of Scrutton’s sentiments, are a constant theme of his Union experience. However, the Union always had a sneaking admiration for the radicals in their midst, and there was a significant Trinity block vote – at least for those members who had sufficient popularity within the college to mobilise it. Scrutton was not opposed when he stood for secretary at the start of the 130 132 133 134 136

131 Minute Book, 29 and 30 October 1877. Minute Book, 4 February 1878. Minute Book, 4 December 1877 and 18 February 1878. He came sixth and secured the final spot. Minute Book, 14 May 1878. 135 Minute Book, 25 March 1878. Minute Book, 13 May 1878. 137 Minute Book, 29 October 1878. Minute Book, 22 and 28 October 1878.

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Lent term of 1879,138 when his fellow Trinitarian S.G. Ponsonby became president. In that office, he established the Library committee – on which he subsequently served – which was intended to reduce the interminable debates about what books to buy. He also spoke, unsuccessfully, for the disestablishment of the Church of England,139 and carried the day on the extension of the household franchise to the counties.140 Easter term brought Scrutton the vice-presidency – again unopposed. In this capacity he was involved in correspondence with periodicals which had carried reports on Union debates in breach of the society’s rules. One consequence of the restriction – that only the motion, the speakers and the result could be reported – is that there are almost no critical evaluations of Scrutton’s oratorical gifts. When the Oxford and Cambridge Undergraduate Journal carried an anonymous report of one debate, Scrutton threatened that the Union would make two copies of the paper available in the Reading Room – “a step which cannot fail to materially affect its Cambridge circulation” – if the offence was repeated.141 The tactic was successful. Another journal, Land and Water, carried a similar report of a debate on a motion to express the Union’s disapproval of the opening of museums on Sunday. The anonymous correspondent said of Scrutton’s speech against the motion that “the opposer, Mr. T.E. Scrutton of Trinity, spoke in the best manner and put his side of the question very forcibly”.142 On this occasion, Scrutton appealed to the journal’s finer instincts, and secured a promise not to publish any further reports of that kind. Tradition required the vicepresident to produce a report of the term’s activities. Scrutton’s letters had an acerbic tone which was to become familiar. He complained about the poor attendance at private-business meetings in the absence “of some sensational motion . . . It is hardly in accordance with the dignity of the officers of this House that they should be compelled like theatrical managers to concoct sensational programmes”. A blast was directed at those who stole books from the Union’s library: the Union’s copy of Theophrastus “has been added to the private library of some honourable member”, while others scribble silly jokes or doubtful corrections in the margin, tear illustrated plates and photographs out of the most valuable works in the library, put 138 139 140 141

Minute Minute Minute Minute

Book, Book, Book, Book,

3 February 1879. 4 February 1879 (motion defeated 150:52). 25 March 1879 (motion carried 32:26). 142 letter of 5 August 1879. Land and Water, 10 May 1879.

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a university man their dirty boots on the seats in the Reading Room, scatter the stationery over the tables and floor in the writing room, make idiotic alterations in the printed notices . . . and cut extracts from the society’s periodicals.143

We do know from J.J. Thomson that Scrutton was “very successful in scoring off his opponents”, Thomson recalling that when an opposing speaker had referred to those on Scrutton’s side of the motion as “uncircumcised philistines” Scrutton interrupted his “honourable and I suppose circumcised friend”.144 In Michaelmas 1879, as he began his LL.B., Scrutton had a “fallow year”, serving only on the Library committee. He was still a prominent speaker – for example his was the second name on the order paper in support “of the speedy return to power of the Liberal Party”.145 He was unopposed for the presidency in the Lent term election, and chaired debates for the following term, as well as handling more mundane issues such as problems with the society’s boiler.146 He also contributed to a number of debates, invariably unsuccessfully, in support of Liberal motions: in favour of yet another Irish Home Rule motion – “that in the opinion of this House, the establishment of Home Rule would not be incompatible with the integrity of the United Kingdom”,147 and asking for a change from the Conservative administration,148 and for the disestablishment and disendowment of the Church of England.149 In March 1880, we have Scrutton’s account of his role in a Union debate written in a letter to his fiancée, Mary Burton.150 He informed her that “the main event of importance has been the Committee of the whole on Wednesday. Well of course, you would like an account of it”. He warned that “naturally I may be suspected of boasting but I only repeat what I was told repeatedly after the meeting”. To a House “crammed, about 400 members present”, he rose in support of the motion and attacked “very vigorously”, being greeted as he rose “with such a reception. I don’t think I exaggerate when I say there were three or four

143 145 146

147 148 149 150

144 Minute Book, 22 October 1879. Thomson, p. 54. Minute Book, 31 October 1879. Secretary’s Minute Book, 18 February 1880. The glamour of the Cambridge Union all but disappears in the face of entries such as “the minutes of the hot water sub-committee were read”. Minute Book, 17 February 1880 (defeated 125:42). Minute Book, 13 April 1880 (defeated 117:85). Minute Book, 18 May 1880 (defeated 226:86). Scrutton to Mary Burton, 12 March 1880, Scrutton Papers.

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distinct rounds of cheering”. What followed was clearly a revelatory experience for him: When at last I got to speak, I made what I think to be the best speech I ever made. I felt so thoroughly at home and so confident of my case that I could speak better than I ever did before and I was constantly interrupted by rounds of applause.

Scrutton continued to participate in debates in the Michaelmas term after he had completed his LL.B., having an unexpected success on a motion attributing the present state of Ireland to “the misguided policy of English statesmen in the past”.151 His final debate was a characteristic contribution on another Scrutton hobby-horse, the abolition of the hereditary principle in the House of Lords.152 He also tried to strike Walt Whitman’s poetry from the list of books purchased by the Library committee, losing the committee vote on the chairman’s casting vote and then carrying the motion unsuccessfully to a poll of members.153 One notable feature of histories of the Cambridge Union in this period is the number of its undergraduates for whom its presidency represented the apotheosis of their achievement, to be followed by a life in which similar heights are never again scaled: what Craddock describes as “the recurrent contrast between the early fame and the later obscurity, the promise and the fulfilment”.154 The greatest speaker of Scrutton’s era was J.K. Stephen, son of the Victorian jurist Fitzjames Stephen, who preceded him as senior Whewell scholar and followed him as president of the Union in 1881. He had opposed Scrutton in the disestablishment debate. Craddock described Stephen as “large, loose-limbed, conveying the impression of enormous strength, uncompromisingly masculine, eccentric and companionable”.155 Many a Union speech for years to come closed with one of Stephen’s perorations, in which he parodied such popular literature of the moment as Barrack Room Ballads and She: “when there stands a muzzled stripling, Mute beside a muzzled bore; When the Rudyards cease from Kipling; And the Haggards ride no more”. However, careers at the Bar and in journalism both foundered, and he died ten years years after leaving Cambridge with his early promise essentially unfulfilled. For Scrutton, by contrast, the Union

151 152 153 155

Minute Book, 2 November 1880. Minute Book, 23 November 1880 (defeated 156:70). 154 Minute Book, 15 and 17 November 1880. Craddock, p. 17. See also p. 78. Craddock, p. 70.

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presidency was no brief episode of adolescent luminescence, but a youthful foretaste of the sustained adult achievement to come.

2.10 Scrutton’s university career There are a number of striking features of Scrutton’s seven years as a student. Most obviously, there is his relentless accumulation of honours and prizes, a sufficiently defining achievement that it was to feature prominently in all of the obituaries and tributes paid after his death some fifty years later. There is also its length: whilst seven years of continuous study is by no means uncommon, in Scrutton’s case this was seven years of continuous examination, unleavened by the variation of research or thesis writing. Maintaining the enthusiasm and intensity of effort throughout that period, with each year bringing the renewed pressure of maintaining or surpassing the previous year’s achievements, indicates particular qualities of character and endurance. There is also its variety. There were many late Victorian polymaths, but an education which embraced studies at the highest level in English, Latin, Greek, logic, moral and political philosophy, political economy and law is well rounded on any view. There is also a sense of the calculated accumulation of qualifications. Adding the Cambridge BA to the UCL BA made perfect sense in a world in which degrees from the ancient universities carried significantly more weight and offered more opportunities than those from Gower Street. Continuing on to complete the Cambridge LL.B. was an obvious next step for someone already intent on a career at the Bar and already a member of the Middle Temple. However, returning to UCL in 1878, in his final year of the Cambridge Tripos, to turn his UCL BA into an MA is more difficult to explain, while the completion of his London LL.B. in 1882, in the same subjects as the Cambridge LL.B. in which he had triumphed two years before, does seem somewhat gratuitous. Scrutton’s vigorous extra-curricular activities – particularly at Cambridge where rather more is known about his non-scholastic achievements – are also noteworthy. Any successful law student who might feel tempted to claim a spiritual affiliation with Scrutton by reference to the accumulation of university prizes would face rather more difficulty in answering the question “but what else did you do?” The presidency of the Cambridge Union was Scrutton’s most noteworthy achievement, but his founding role in the CUMSC and his active membership of CUBiC evidence a life lived within much wider horizons than law library and examination hall.

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While Scrutton’s university education was very much a “tale of two cities”, it was to Cambridge that he felt the strongest affiliations, and Cambridge which featured to the virtual exclusion of UCL in his subsequent recollections of student life. When presenting a painting to his school contemporary and Oxford graduate Nathan Micklem at Mill Hill School in 1932, Scrutton “discoursed at length on the relative merits of Oxford and Cambridge”, without reference to their shared education at UCL.156 In 1881, at the Old Millhillians Club, he spoke in support of the motion that “the Mill Hill School should prepare for Oxford and Cambridge rather than London University”,157 and after a club dinner in October 1879 he listed distinctions obtained by the seventeen Millhillians then at Oxford and Cambridge, and referred to “the many hundreds of pounds in scholarship that had been won at the various universities during the last few years by boys from the school”.158 Scrutton’s pride in his Cambridge achievements is understandable, but he owed a clear debt to UCL as well. Both universities can fairly claim him as a distinguished alumnus. 156 158

157 MHM, July 1932. OMC minute book, 30 March 1881. OMC minute book, 12 October 1879.

3 Pupil, professor, husband and politician

The “industriousness” for which Scrutton was famed at Cambridge was maintained, and if anything became more pronounced, in the decade which followed. The 1880s saw Scrutton complete his pupillage, and build his practice at the Bar. He was appointed to a chair at University College, and played an active role in attempts to find a workable basis for the College’s ongoing relations with the University of London. After a particularly long engagement, he became a husband and soon thereafter a father. He was also very active within the Liberal Party, contesting the 1886 general election and playing a small but nonetheless significant role in that party’s response to the split over the issue of Home Rule for Ireland. This was also the decade in which he wrote and published his four Yorke Prize-winning essays, and his seminal work on Charterparties and Bills of Lading – events which are the subject of Chapter 5. It is in the nature of the biographer’s task that these events are tackled sequentially, under independent headings, and in this book over the course of three chapters. However, they were lived simultaneously: Professor Scrutton was also Scrutton the author, the political activist, the barrister and the family man.

3.1

A pupil barrister

Scrutton’s last set of examinations were set by the Council of Legal Education at the Inns of Court, and he sat them in Lincoln’s Inn Hall in May 1882. He came top in the common law examination, and performed rather less impressively in equity.1 Scrutton later recalled that when he was admitted, a venerable gentleman sitting at a table asked him a question on Equity, and he gave the only truthful answer, which was that he did not know. 1

CLE Archive, A.CLE.11/3, at p. 72.

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“Ah,” said the examiner, “whom did you read with?” He replied “With A.L.[Smith]” . . . “Capital” was the comment; “you go on, I need not ask you any more.”2

He was awarded the Barstow Scholarship,3 a prize which had been established in 1878 under the will of Mrs Jane Barstow.4 At that time, the Barstow was a scholarship in international and constitutional law, and it probably met the late Lord Bingham of Cornhill’s definition of the ideal scholarship: one which the holder is delighted to receive, but which does not excite jealousy on the part of non-recipients because they have never heard of it. He was called to the Bar a few weeks later by the Middle Temple.5 At this time, barristers generally completed two years’ pupillage: one commentator in 1879 suggested that a pupil should complete a year with a conveyancer or equity draftsman, six months with a special pleader or common law barrister, six months with a solicitor and six months after call with a barrister.6 The standard rate paid by the pupil was a hundred guineas for each twelve months: nearly £5,000 in 2012 terms. Then, as now, pupils read through their pupil master’s briefs, producing drafts of opinions and pleadings. In his study of the English and colonial bars in the nineteenth century, Daniel Duman quotes from a letter written by William Harcourt to his sister describing his experience of pupillage in the 1850s, which is likely to have been broadly representative of Scrutton’s experience, save that Scrutton wrote Yorke Prize-winning essays instead of articles for periodicals:7 At ten I go into my tutor’s chambers where I work like a horse till five at pleadings, opinions, etc. . . . I then scramble to get a little dinner, then [write] a leading Art[icle for the Saturday Review] till ten, then my own private law studies till two, and so to bed . . . One has no time to do what Palmerston calls “meditate on the immensity of the universe.”8 2 3 6

7

8

“The reception” (1928) 2 Bell Yard J.L. Society School of Law 30. 4 5 The Times, 8 June 1882. The Times, 19 June 1878. The Times, 22 June 1882. W.W. Rouse Ball’s Students’ Guide to the Bar (1879), quoted in Richard Abel, The Legal Profession in England and Wales (1988), p. 53. See also Daniel Duman, The English and Colonial Bars in the Nineteenth Century (1983), pp. 81–4 (“Duman”). In his The Laws of Copyright (1883), p. 10, Scrutton justified protection of the writer’s work on the ground that “man must eat to live, and most men must earn to eat. If eating will not follow from writing, the writing must in many cases be left undone, or done as subsidiary to other employment, which drains energy and vigour from the writer but which wins his bread”. Quoted in Duman, p. 82, from A.G. Gardiner, The Life of Sir William Harcourt, Vol. I (1827–86) (1923), p. 75.

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Scrutton began his pupillage with a short period in the chambers of Kenelm Digby at 1 Paper Buildings.9 Digby had been Vinerian Reader in English Law at Oxford. The Oxford Dictionary of National Biography describes him as “sound, learned and painstaking lawyer”, and he had shared interests with Scrutton in a love of walking and a commitment to Gladstonian Liberalism. Digby said of Scrutton, I formed a high opinion of his general ability and capacity as a lawyer. He had not at that time had much practical experience but he brought with him from the university a considerable knowledge of the principles of law and displayed great power in applying his knowledge and of dealing with the practical questions which came before him. His “opinions” on difficult questions I thought excellent.10

His principal period of pupillage was with Archibald Levin Smith at 11 King’s Bench Walk,11 where he spent fifteen months. Scrutton’s path to him is not clear, but as Smith was a Trinity graduate (he had been a star oarsman, rowing in the Boat Race crew for three successive years), it is possible that they met or were put into contact in a Trinity context. Scrutton recalled his “dear old master in law” fondly: You would find him sitting in the pupils’ room on the table in his shirt sleeves, and if you went to him with an armful of books, to consult him about a case, he would say . . . “Damn the books – tell me the facts”; and when you had told him then he would begin to work on the principles and so come to the result. Then he would say, “Have you got anything in your beastly law books to beat that?”12

By 1882, Smith had known Scrutton “intimately for some three years”.13 Smith had an extensive practice in commercial law and in contested election petitions,14 and in 1879 he became junior counsel to the Crown. This virtually guaranteed an appointment to the High Court bench, which duly followed in 1883. Smith was clearly very impressed by Scrutton. The report of the reference he gave UCL on Scrutton’s behalf recorded that Smith has no hesitation in saying, and he says it with emphatic doubleunderlining, “that he was a very first class pupil” . . . He knows that “If Mr Scrutton is elected, the College will get a man in every way fitted for the post, and who will give every satisfaction not only to his hearers but to those who elect him”.

9 12 13

10 11 Law List, 1880–2. UCL/Apps/1882. Law List, 1880–2. Scrutton, “The work of the commercial court” (1921) 1 C.L.J. 6, at p. 19. 14 UCL/AM/C/110. Oxford Dictionary of National Biography.

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It was common in the nineteenth century for barristers to begin practice on their own after completing pupillage.15 This is the course which Scrutton appears to have followed, appearing in the Law List in 1883, practising from 6 Pump Court. His progress from there to appointment to the High Court bench in 1910 is the subject of the following chapter.

3.2 The London Bicycling Club Scrutton’s interest in cycling continued beyond his days as a Cambridge student. In 1879, he joined the London Bicycling Club (LBC), whose Gazette contained frequent references to him over the following years. He was elected captain in 1881,16 and was one of the representatives sent by the LBC to the National Cycling Union, in which capacity we find him chairing a disciplinary hearing involving an appeal by suspended riders on 14 December 1882.17 Scrutton held the position of treasurer of the National Cycling Union in the course of that year,18 and was a staunch upholder of the amateur ethos.19 He also participated in the various cycling events the LBC laid on – a ride out to Stanmore, and various paper chases, the LBC noting that he had “plodded onto the destination” in one and had “the honour of being the first hound to reach Orpington” in another.20 He also organised a ride which ended at his parents’ house in Buckhurst Hill, where “tennis, quoits, and strawberries occupied a most pleasant hour or two”, and an “exceedingly pleasant evening was concluded by ‘Auld lang syne’”.21 The application he brought to other activities was equally apparent here: as a contemporary noted, “when Scrutton finds a hill he has a way of getting to the top”.22 As this brief description will indicate, the LBC was as much a social as an athletic club. Scrutton was a very active and very social member. He attended the club dinner on 24 November 1880,23 proposing a toast 15

16 17

18 19 20 21 22 23

Richard Abel, “England and Wales: A Comparison of the Professional Projects of Barristers and Solicitors”, in Richard Abel and Philip S.C. Lewis (eds.), Lawyers in Society: An Overview (1995), p. 46. (1881) 4 London Bicycle Club Gazette, p. 2. (1882) 5 London Bicycle Club Gazette, pp. 4–5; George Lacy Hillier, Cycling (1894), at pp. 116, 280. “Karl Kron” (Lyman Hotchkiss Bagg), 10,000 miles on a bicycle (1887), p. 646. (1882) 5 London Bicycle Club Gazette, pp. 21–2. (1881) 4 London Bicycle Club Gazette, at pp. 30, 44 and 70. (1881) 4 London Bicycle Club Gazette, p. 132. (1882) 5 London Bicycle Club Gazette, p. 28. (1880) 3 London Bicycle Club Gazette, p. 243.

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to the officers and committee: as a new arrival to the LBC he suggested he had been chosen on “the principle on which they assign the ‘The Ladies’ to a bachelor, who, since he can naturally know little about them, is most likely to speak well of them”. He had a prominent role at the dinner the following year, looking back on the “socials . . . balls and dramatic entertainments, and very successful they all were”, and observing that “though . . . it was urged that they tended to make our men better known to other members, still I think they were equally designed to give them the chance of knowing other members’ sisters”.24 His popularity is evident from the toast made to him at the end of the evening: He is one who, whether on the wheel or at the Committee or Council table, is a most able supporter of the Club. I personally know his worth at the Council table, and the way in which he assists in business matters connected with our sport, and I can safely say that although the “L.B.C.” has had several very good Captains indeed in the past yet it has in Mr. Scrutton one who at any rate is second to none.

The LBC also boasted an orchestral society and a dramatic society, whose meetings often ended in songs and recitations. Scrutton helped organise a “smoking concert”.25 He was also a committee member of the dramatic society,26 and was “one of the club talents” expected to perform.27 Many years later, when the Scrutton family gathered for Christmas in the judicial home, acting games such as charades and “Dumb Crambo” were a staple, and Mary Midgley recalled that her grandfather was one of the “stars” of the occasion.28 In addition, Scrutton was a regular at LBC social evenings, including one at the King’s Arms, Croydon (“a most successful Social. After a good tea, songs, recitations, and the indefatigable pianist rendered it both gay and festive”) and another at the Guildhall Tavern (the club hearing from “the musical talent of Weeks, R. Newman, and W.J. Williams on the piano, and Rucker on the banjo”).29 He was less tolerant of those who joined the club but then failed to show the same devotion as he did to its athletic and social activities.30

24 25 26 27 28

29 30

(1881) 4 London Bicycle Club Gazette, pp. 258–9. (1881) 3 London Bicycle Club Gazette, p. 249. (1880) 3 London Bicycle Club Gazette, pp. 223, 248. (1880) 3 London Bicycle Club Gazette, at pp. 223, 242. Midgley, p. 28. One of Scrutton’s granddaughters was the actress Daphne Anderson, who appeared in the films Hobson’s Choice, The Beggar’s Opera and The Scarlet Pimpernel. (1881) 4 London Bicycle Club Gazette, pp. 15 and 28. (1882) 4 London Bicycle Club Gazette, p. 39.

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3.3 Professor at UCL Sir Frank Mackinnon’s Dictionary of National Biography entry for Scrutton stated, With such a record, he may have hoped for a fellowship at Trinity. A remark made by Sir J.J. Thomson shortly after Scrutton’s death may explain why he did not get one. “I remember Scrutton. A very clever man, and of immense industry, but – no originality”31

By the time the entry was rewritten for the Oxford Dictionary of National Biography, it was suggested that although “he probably hoped to be elected to a fellowship at Trinity, Scrutton was deemed by some of the fellows, there, though intelligent and immensely hard-working, not to be ‘original’”.32 The source – Sir Joseph John Thomson – was a physicist, born in the same year as Scrutton, who won a minor scholarship to Trinity in 1876 (the same year as Scrutton) and who was elected to a fellowship in 1880 for a thesis on the transformation of energy.33 He was undoubtedly a brilliant man, but his qualifications for assessing the originality of Scrutton’s legal thought appear doubtful. The assessment recorded by Mackinnon differs somewhat from that in Thomson’s autobiography, where he recalls dining with Scrutton in Trinity – “we all felt sure he would succeed at the Bar, he was so fond of arguing, and so quick-witted and so able”.34 Mackinnon must have had some reason both for believing the story, and, in particular, for including it in Scrutton’s Dictionary of National Biography entry. The suggestion that Scrutton lacked originality may have been one Mackinnon was predisposed to accept: no man is a hero to his valet, and a pupil and junior with long experience of seeing the product of his labours redounding to his master and leader’s advantage is not always best placed to assess the latter’s merit. With irrelevant exceptions, fellowships at Trinity at this time were awarded by examination.35 Trinity kept a register of candidates for fellowships, and “from the register of those who sat for fellowships and scholarships, it is clear that [Scrutton] did not attempt to win a 31 32

33 35

Dictionary of National Biography, 1931–1940. Oxford Dictionary of National Biography entry. See also A.W.B. Simpson, Biographical Dictionary of the Common Law (1984), p. 468: “He was never given a fellowship, apparently for lack of originality”. 34 Dictionary of National Biography, 1931–1940. Thomson, p. 54. Ackerman, p. 27; communication from Jonathan Smith, archivist, Trinity College, Cambridge.

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fellowship”.36 There are a number of possible reasons for Scrutton’s not pursuing such a course. It is, of course, possible, that he was warned off applying on the grounds that he lacked the necessary “originality” to succeed, but this seems improbable given his outstanding results in the Moral Science Tripos and LL.B., and the terms in which his tutors spoke of him when supplying references. A more plausible reason is that Scrutton did not wish to delay any further the commencement of the career at the Bar on which he had long been set (and which he must have known would require many more years’ work before he became established). Scrutton was engaged to be married, and had been so for some time. It was not until 1882 (a year after he left Trinity) that fellows at Trinity were permitted to marry,37 precipitating what T.R. Glover described as “a sudden rush to the altar” and leading one participant in the rush to reflect later that “the breakfasts are better, but the dinners are not nearly so good”.38 Scrutton did apply for, and obtain, what it must be admitted was a less prestigious and considerably less onerous fellowship at UCL: it carried no teaching, research or residence obligations, and was essentially an honour for past achievements.39 However, teaching law did interest him as a source of additional income. In 1880, the fellow and tutor in history at Trinity, B.E. Hammond, had asked Scrutton to give classes in international law to undergraduates at Newnham College taking the History Tripos.40 Newnham was a college which admitted only women students, founded in 1871. University regulations of the time permitted the women to sit examinations, but they could not obtain degrees. Hammond recorded that “all of the class told me afterwards that he had taught them remarkably well” and that Scrutton possessed “exceptional teaching prowess”. Scrutton also gave private tuition to the successful candidate for the 1880 Whewell Scholarship, who is reported as saying “that he owed [his success] to Mr Scrutton’s teaching”.41

36 37 39

40 41

Communication from Jonathan Smith, archivist, Trinity College, Cambridge. 38 W.W. Rouse Ball, Trinity College Cambridge (1906), p. 38. Glover, p. 105. UCL/AM/C/89. Report of the Committee on Fellowships Presented to the Council, January 14 1882. UCL/Apps/1882. Reference from B.E. Hammond Esq. The beneficiary of Scrutton’s tuition would have been either Arthur Hugh Thompson or William Frederick Webster, both members of Trinity, who obtained the Senior and Junior Whewell Scholarships in 1880. The Times, 7 June 1880.

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In 1881, Scrutton applied for the position of professor of constitutional law and history at UCL, but the chair went to T.E. Taswell-Langmead. Langmead did not last long in what was something of a blighted appointment. The following year Scrutton applied for the vacant chairs in jurisprudence and constitutional law and history, making it clear that if required to choose, he regarded himself as a candidate for the jurisprudence chair in the first instance.42 He was twenty-five years old at the time of this application – and therefore had been twenty-four on his first application – and was evidently not lacking in confidence. In March 1883,43 at the age of twenty-six, he was appointed to the constitutional law chair, it being “unanimously agreed that he was the strongest candidate”.44 The achievement was considerable. It was later bettered by his fellow Trinitarian, Enoch Powell, who became professor of Greek at Sidney University at the same age (one suspects a rather more competitive appointment than Scrutton’s, although Powell was apparently disappointed that he had not matched Nietzsche’s record of achieving a chair at twenty-four). Obtaining the chair was one thing. Making a success of it, and indeed of the teaching of law at UCL, was quite another. Scrutton began with seven students paying the princely sum of £24 13s 6d between them, only some of which would have found its way to Scrutton.45 The disappointing quantity may have been alleviated by the presence among them of J.W. Salmond, who was to become a jurist of great distinction and later a judge of the New Zealand High Court. In the first term, Scrutton lectured “On the origins of the English constitution and its growth to the year 1300”,46 at the unpromising hour of six o’clock to seven o’clock on Friday evenings. In the second term, the story was continued from 1300 to the present day on Thursday afternoons between 5.30 and 6.30, the course being “intended as a preparatory for the Intermediate Examination in Law, the Higher Local Examination (Group H) and for general students of constitutional history”. The “more exclusively legal aspect” was dealt with in Class II on Tuesday afternoons, where his lectures dealt “with the legal aspect of the Constitution, treating of its history so far as is necessary to set out the precedents establishing Constitutional Law”. This class prepared candidates for Part I of the London LL.B. and the Barstow and other scholarships at the Inns of Court. In addition he gave some lectures of more general interest – for 42 44 45

43 UCL/Apps/1882. The Times, 17 March 1883. UCL/AM/C/110; UCL Minutes of Senate No 5, 8 March 1883. 46 UCL/ARC/2007/85 and 86, Professors’ Fee Books. UCL Calendar, 1883–4.

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example an 1886 lecture on “Examinations: Their Use and Abuse”,47 a subject on which he was eminently qualified to speak. His notes survive in a bound volume, deposited with the family solicitors, Frère Cholmeley, and found in their archives in 1986. The detail of the subject is comprehensively set out and meticulously organised.48 The following year, the number of students had risen to ten: Salmond completed the course, as did Sara Burstall, who went on to become a distinguished educationalist. The improved numbers may have resulted from the free introductory lecture given by Scrutton,49 the calendar stating that “at the close . . . he will be glad to give intending Students any information they may require”. Burstall recalled that Scrutton’s “valuable” lectures “illuminated the whole course of history of our own nation”.50 Salmond won the Constitutional Law Prize and Burstall the Constitutional History Prize.51 Scrutton and Salmond maintained a longdistance interaction thereafter: Scrutton was one of Salmond’s referees when he obtained a chair at the University of Adelaide in 1897,52 and in Job Edwards Ltd v. Birmingham Canal Navigation53 Scrutton identified the discussion in Salmond’s Torts as “the most helpful passage I have found”. Salmond, in turn, cited Scrutton LJ’s discussion in Job Edwards when sitting as a judge in Knight v. Bolton.54 In each of the following two years there were eleven students, but the number dropped to six in 1887–8, and five in 1888–9, Scrutton’s last year as professor before he resigned the chair in July 1889.55 Scrutton’s obituary in the Mill Hill Magazine suggested that “a growing practice at the Bar necessitated an early relinquishment of his professorship”,56 but it seems more likely that the disappointing number of students in a post in which the fees for lecturing were dependent on the number who signed up for the course led to disillusionment, and a decision that the time and effort involved would be better expended in another cause. Scrutton appears to have resigned the chair at around the time he was

47 48

49 50 51 52

53 55

Pall Mall Gazette, 5 October 1886. The ledger, some 450 pages long, was found in No 28 Lincoln’s Inn Fields and handed to the Scrutton Family. It contains a copy of the 1888 examination paper. UCL Calendar 1884–5, at p. 81. See also (1884) 77 Law Times 411. Sara A. Burstall, Retrospect & Prospect: Sixty Years of Women’s Education (1933), p. 97. UCL Calendar 1885–6, p. lxii. Alex Frame, Salmond: Southern Jurist (1995), p. 54, who is also the source of the case references which immediately follow. 54 [1924] 1 K.B. 341, at p. 359. [1924] N.Z.L.R. 806. 56 The Times, 2 July 1889. MHM, August 1934.

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elected to lecture on common law to the Incorporated Law Society,57 lectures later published as Elements of Mercantile Law.58 However, he continued to act as the examiner in constitutional history for London University until 1891.59 Scrutton’s tenure cannot be heralded a success, but this appears to have been largely due to the unpopularity of the subject and the faculty, rather than to any personal failing on his part. The chair had only come into existence as a result of the recommendations of a committee appointed by the UCL council in 1869,60 and the course had never been well subscribed. When Scrutton resigned the chair, it was not taught in the following year. In 1890, Professor Henry, professor of jurisprudence, taught Indian Law and Constitutional Law and History in addition to his own subject,61 with only one colleague in the department and only thirteen students attending classes.62 The chair was not revived until 1895, and even then was awarded jointly with the chair of jurisprudence to J.P. Bale.63

3.4

A teaching university for London?

There is one final aspect to Scrutton’s involvement with the University of London which needs to be considered, and that concerns his role in attempts to amend the University’s structure and governance in the 1880s. On the same date on which UCL finally received its Royal Charter – 28 November 1836 – a Royal Charter was given to a new body, “the University of London”, which was empowered to award degrees to students at UCL and King’s, and such other institutions as might later be approved. The result was a separation of teaching and examination responsibilities which was the source of ongoing problems.64 These were exacerbated in 1858, when the system of affiliated colleges was abolished, and anyone was 57 58 59 60 61

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(1890) 89 Law Times 249. T.E. Scrutton, The Elements of Mercantile Law (1891). University of London General Register, Part 3. See also The Times, 30 April 1888. Bellot, at pp. 327–8, 331. Professors’ Fees Book. George W. Keeton, “University College and the law” (1939) 51 Juridical Review 118, at p. 128, suggests that the entry in the College Calendar showing Henry as professor of jurisprudence rather than as Scrutton’s successor as professor of constitutional law was “evidently an error”, but the Fees Book suggests otherwise. Bellot, p. 387. UCL Minutes of Senate, Vol. 6, entries for 18 December 1894 and 27 May 1895. Harte and North, p. 58; Bellot, at pp. 303, 379–81; Negley Harte, The University of London, 1836–1986 (1986), Chapter 4.

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permitted to sit University of London examinations even if they had not attended any college. A result was that: The teachers in the several colleges found their work hampered at every turn by the fact that they had no control over the schedules for examinations for which their students were in preparation, and the whole intellectual life of the university, on its side, was starved by the limitation of its functions to those of an examining body.65

In 1884, the Association for Promoting a Teaching University for London was formed, with the goal of establishing a new teaching university in London – to be known as “Albert University” – which would subsume the existing colleges and the medical schools within a single body, and give the teachers at those colleges an effective and preeminent role in the governance of the new university, including the awarding of degrees.66 Scrutton was one of 250 founding members, each of whom was invited “on the grounds of eminence or of experience in matters affecting university teaching in London, or of his being actively engaged in educational or administrative work in one of the institutions in which teaching is given”.67 The Association formed an executive committee.68 Scrutton was invited to join a sub-committee concerned with the proposed Faculty of Arts,69 and later the executive committee.70 University College was initially reluctant to commit itself, taking the view that the faculties of the new university should be centred around those of the established colleges, University and King’s.71 In addition, a sizeable number of the members of the Council of University College were opposed to a scheme in which teaching and the awarding of degrees were the responsibility of the same institution: a proposal for “branding your own herrings”, as it was described at the time. As a member of the executive committee, Scrutton had shared involvement in drafting the statement which was 65 66

67

68

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Bellot, p. 380. 31 Nature (12 February 1885), pp. 352–3; 35 Nature (23 December 1886), pp. 179–81. See also reports in the British Medical Journal, 10 January 1885, at p. 92; 18 December 1886, at p. 1232; 26 February 1887, at p. 469; 12 May 1888, at p. 1027. Report of the Royal Commission “To Enquire Whether Any and What Kind of New University or Powers Is or Are Required for the Advancement of Higher Education in London”, (1889) C.5709, Appendix, pp. 218–25. The following extracts are from the minute book of the Association for Promoting a Teaching University of London, UCL/Special Collections/MSADD52. 70 Minutes, 11 May 1885. Minutes, 24 November 1885. Minutes of General Meeting, 3 December 1885; and The Times, 4 December 1885.

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sent out by the association to the existing colleges and medical schools, was one of the deputation from the association which obtained the support of King’s College for the association’s plans, proposed the resolution at University College which was passed to support the association’s plans and, together with Frederick Pollock, approached the Council for Legal Education in an effort to persuade it to participate. In 1887, the Association, and UCL and King’s College jointly, forwarded petitions to Parliament in support of the new university which was to be called the Albert University,72 Scrutton having helped settle the association’s petition.73 However, the Senate of London University opposed the proposals. The Government referred the issue of how the University of London should be structured and governed to a Royal Commission chaired by Lord Selborne in 1889, which was asked “To enquire whether any and what kind of new university or powers is or are required for the advancement of higher education in London”.74 The Commission found that the case for a teaching university was “made out” but offered no clear proposal to carry it into effect, and it postponed a decision on the petition of the Association and the two established colleges pending further discussion by interested parties. The matter was to drag on for many more years – and before another Royal Commission – before it was finally resolved with the London University Act of 1898. Under statutes drafted under that Act, UCL and King’s became schools of the University of London, and their professors and teachers were recognised as teachers of the university, with a share in its governance and the determination of its curriculum.

3.5 Mr and Mrs Scrutton The future Lady Scrutton was born Mary Burton in Great Yarmouth in 1856. Her father was a local solicitor and later a magistrate, Samuel Crickmer Burton. She was one of a large and relatively prosperous family: the family census returns record three sons and four daughters, and three domestic servants living in.75 The children were educated to a good standard: the daughters appear to have been sent away to school, one son 72

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Negley Harte, The University of London, 1836–1986: An Illustrated History (1986), pp. 142–57, tells the story and its eventual outcome (noting that the name chosen was “chosen no doubt with an eye to encouraging support in high quarters”). 74 Minutes, 20 May 1887. (1889) C.5709. 1871 and 1881 census returns for Samuel Crickmer Burton.

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became a solicitor, and another a doctor. Burton & Son practised from offices in Priory Plain in Great Yarmouth, and in addition to his general practice, Mary’s father was the local agent for the Norwich Equitable Fire and the Royal Exchange.76 Scrutton appears to have met Mary Burton through cousins on his mother’s side: the Spelmans. The Scruttons and Spelmans went on holiday together to France in 1871 (or perhaps met up there), and it was on a return visit to the Spelmans in Great Yarmouth that Scrutton met Mary Burton.77 Mary Midgley recounts the family lore in the following terms: There is a touching story about his first meeting with his future wife when they were both seventeen. It seems that he was lying on a sofa with a broken ankle, probably feeling bored, when some cousins came in bringing a pretty girl called Mary Burton who promptly said, “Hello, Long and Lazy”. This went down very well and they quickly got engaged but it was ten years before they could afford to marry.78

Midgley suggests that the engagement lasted ten years, which would mean that the meeting took place in 1874 when Scrutton was at UCL. MacKinnon records that Scrutton was engaged as an undergraduate, but does not specify whether this was at London or Cambridge.79 Little is now known of their courtship. Presumably Mary made it to one of the Trinity Boat Club balls or the social outlets provided by the London Bicycle Club, and it seems probable that music featured prominently as a joint interest. The Family History records that “after meeting his future wife, he developed a great love of music”.80 Together, they attended “all the chief musical events in London, Orchestral Concerts, Recitals and Opera”. Once prosperity permitted, they took a box at the Royal Opera House in Covent Garden each year for the Wagner season, and at the Savoy for Gilbert and Sullivan, and their love of music also took them to Bayreuth and Munich.81 During their long engagement, Mary sat on the sidelines, enjoying at one remove reports of Scrutton’s latest triumph. Telegrams from

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77 78 80

81

Post Office Directory for Norfolk and Suffolk (1865); Post Office Directory for the Counties of Cambridge, Norfolk and Suffolk (1879). Inscribed photograph of the Scruttons and Spelmans in France, 1871, Scrutton Papers. 79 Midgley, p. 45. Oxford Dictionary of National Biography. Family History, p. 32. See also Midgley, p. 28; The Times, 21 August 1934; The Times, 9 March 1940 (report of the death of Lady Scrutton). Mackinnon, Oxford Dictionary of National Biography.

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Scrutton which survive indicate a rather perfunctory reporting of his achievements:82 his obtaining of the Whewell Scholarship was communicated in the form “have won first scholarship. One hundred for four years. Write tonight”. There are other telegrams saying no more than “have got scholarship” or simply “scholarship”. The telegrams announcing “first in first class Law Tripos” or “Professor of Constitutional Law” no doubt said all that needed to be said, and the commendable desire to economise with both words and money inherent in the telegrammatic form may explain much. The one letter which does survive from the period before they were married lends support to the sense that Mary was perhaps not uppermost in Scrutton’s priorities at this time. Beginning “Dearly Beloved”, he told her he was writing “because I want to put you out of your misery as soon as possible”. This was a prelude to telling her that he had been asked by the Liberal Party to campaign in Tower Hamlets and had told them that “my whole time was at their service till after the election”, and that consequently “you must not reckon on seeing me at all at Yarmouth this Easter”. After a lengthy discussion of his triumph in a Union debate which “of course you would like an account of”, he told her he was “deeply grieved I can’t come; at the same time I am in the thick of the fight . . . Believe yourself that I will come down as soon as possible”.83 However, their relationship prospered, and they were married in Great Yarmouth on 9 April 1884.84 The wedding took place in Middlegate Congregationalist Church, William Griffiths MA presiding. All of the evidence suggests that it was a happy marriage. Whilst Janet Scrutton’s statement that “theirs was a supremely happy marriage” is not on its own conclusive,85 it receives support from Mary Midgley (who, as we shall see, offers a very different view of Scrutton’s performance as a parent). She recalls, “At the tea-parties similarly my grandfather would sometimes be very funny and would then get into a double-act with Granny who would sit giggling and saying, ‘Oh Ted . . . Don’t be so ridiculous.’”86 Family papers suggest a surprising tenderness on Scrutton’s part: one document in his handwriting says simply “I.O.U. your heart’s desire, Ted”,87 and another, written at around the time of her birthday, describes 82 83 84 85 87

All from the Scrutton Papers. Scrutton to Mary Burton, 12 March 1880, Scrutton Papers. General Register Office, certified copy of entry. 86 Family History, p. 32. Midgley, p. 29. Undated note on Glenwood notepaper, Scrutton Papers. A document significant, perhaps, both in having been written and in having been kept. Perhaps it was “cashed in” with the acquisition of a motor car described in Chapter 4.

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her as “the best and dearest of all wives”. Mackinnon also provides evidence of Scrutton’s uxorious disposition, recalling that Scrutton took little part in the social life of the Middle Temple, and that although a member of the Reform Club and the Athenaeum, “he was rarely seen in either place: if he had any spare time he spent it at home”. This is far from saying that those who are fixtures on their Inn bench or at their club bar are seeking refuge from an unhappy domestic life. However, if someone with every excuse to be out on a regular basis prefers to spend his time at home, that is some evidence that he is happy to be there. They made their home at 2 Glenluce Road, Westcombe Park, in Blackheath: before that, the twenty-seven-year-old Scrutton had been living at his parents’ home. In the year of their marriage, Scrutton raised the issue with the UCL Professorial Board whether Mary could attend classes there for free:88 children of members of the University Senate had such a right.89 The board decided “that the wife of Professor Scrutton be admitted under the provisions of Regulation 9”. The following year, “Scrutton Mary, Blackheath”,90 appears in the list of UCL students. However it was a short-lived university career: the Scruttons’ daughter, Janet Mary, was born in July 1885,91 followed by Tom Burton (Mary Midgley’s father) in 1887, John Austin in 1888, Alan Edward in 1890 and Hugh Urquhart in 1894.

3.6

The London and Counties Liberal Union

Scrutton was not set on the unthinking traducing of family tradition. He shared his father’s commitment to the Liberal cause, although one suspects that Scrutton would have asserted that his political opinions were the product of independent thought rather than acquired by inheritance. Thomas the younger was a committed member of the Tower Hamlets Liberal Club and was in many respects a “Liberal” candidate for the London School Board. He attended the club’s annual dinner in 1879,92 chaired the executive committee for James Bryce when the latter stood for election in Tower Hamlets93 and was one of the banqueting committee who arranged a dinner for John Morley MP to celebrate the 88 89

90 92

UCL Minutes of Senate, 1 December 1884. UCL Calendar 1884–5, p. xxx; 1885–6, p. xxx; 1886–7, p. xxx show the expanding terms of this regulation. 91 UCL Calendar 1885–6, at p. 349. Pall Mall Gazette, 4 July 1885. 93 The Times, 12 June 1879. Daily News, 29 March 1880 and 2 April 1880.

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number of Liberal MPs elected in Essex.94 Thomas the younger was also a member of the organizing commission of the Liberal Central Association, charged with assisting the organisation of Liberals in London,95 which produced various explanatory pamphlets for the benefit of Liberal Associations around the country,96 and was a sufficiently well-known figure within the Liberal world in London to have a seat on a committee formed to oversee the choices of Liberal candidates for London constituencies.97 Scrutton’s own support for the Liberal cause was already well established by the time that he began speaking at the Cambridge Union. When the 1880 election was called, the Tower Hamlets Liberal Association sent him a telegram asking for his support, and he replied by telling them, as noted above, that his “whole time was at their service till after the election”.98 When he returned to London after his university career was over, he immediately took an active part in Liberal politics. The state of Liberalism in “the Home Counties” was parlous: of twenty-eight MPs elected in that area in 1880, only one was a Liberal.99 In an attempt to remedy this state of affairs, a number of leading “London Liberals”, including Samuel Morley MP from the Radical wing of the Liberal Party, held a meeting at the City Liberal Club in November 1880 to consider “the best means of stimulating and promoting political education and Liberal organisation in the Metropolis and the Home Counties”. The meeting determined to form a new local organisation, following the model of the “Caucus” established under Joseph Chamberlain in Birmingham and the National Reform Union in Manchester, which would bring new vigour and direction into the various Liberal Associations in the metropolitan and surrounding counties. The organisation was the London and Counties Liberal Union. It held its first meeting on 3 May 1881: Samuel Morley was appointed president. The vice-presidents included Herbert Gladstone, son of the Grand Old Man, and the barrister Arthur Cohen QC MP, who became an important professional and political connection of Scrutton’s. After graduating from UCL, Cohen 94 96

97 98 99

95 The Times, 8 January 1886. Daily News, 4 and 18 February 1886. See G. Harris Lea, The Annual Work of a Borough Liberal Association (1886), University of Manchester Selected Pamphlets. The Times, 18 February 1886. Scrutton to Mary Burton, 12 March 1880, Scrutton Papers. See M. Ostrogorski, Democracy and the Organization of Political Parties (1902), a seminal study (“Ostrogorski”), at, pp. 272 ff.; Report of the Meeting of Delegates from the Liberal Associations and of Liberal Electors of London and the Home Counties Held at the City Liberal Club on Tuesday, May 3 1881 (University of Bristol Selected Pamphlets).

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went to Cambridge University and became the first practising Jew to graduate; he also became president of the Cambridge Union. Practice at the Bar in commercial cases, and election as Liberal MP for Southwark, followed. Scrutton was a member of its first executive committee, an important place in London Liberalism for someone who had left university the year before. In contrast to the Birmingham and Manchester organisations, the union set itself primarily on a course not of organisation but of education. Ostrogorski records that the founders of the union believed that the difficulty facing the cause of Liberalism in the Home Counties did not consist of “bad organization”, but in the fact that the population was ignorant, imprisoned within a narrow horizon, without capacity for public life. To bring life into this darkness, to open the mind of the rural population, to awaken in it an interest in the public welfare, became the great object of the Union from the very beginning.100

As the mocking undertone to this description suggests, there was something a little unworldly and “donnish” about the union’s approach. In contrast to Chamberlain’s hugely effective Birmingham machine, it forswore interference in the affairs of the local associations, its principal tools being “lectures, publications at reduced rates, information and advice on legal points connected with electoral registration”. The London headquarters of the union constituted “a sort of club for mutual improvement in which the members read papers on problems of legislation or politics which they had investigated, followed by a discussion intended solely to enlighten the audience and not to end in a vote”. Discussions featured Arthur Cohen QC, James Bryce QC, Albert Venn Dicey and, we may, infer, Scrutton himself. These speakers were in turn invited to deliver lectures in the constituencies, before an audience composed of not only party supporters, but also neutral and Conservative voters. It is an atmosphere in which it is easy to see Scrutton at home: a natural extension to the discussions of the Moral Sciences Club and the debates of the Cambridge Union. His first recorded contribution was the delivery of a paper at a conference organised by the Union to discuss the Parliamentary Elections (Corrupt and Illegal Practices) Act passed in 1883, which was held in the Cannon Street Hotel in December of that year.101 The Act had been passed 100 101

Ostrogorski, p. 223. For the background to the Act and an assessment of its effects see Kathryn Rix, “The elimination of corrupt practices in British elections? Reassessing the impact of the 1883 Corrupt Practices Act” (2008) 123 English Historical Review 65.

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by the Liberal government to address the problem of corruption and “treating” (purchasing drinks or providing other benefits to voters in return for their votes) at Parliamentary elections, to impose strict controls on the number and type of persons employed on the candidates’ behalf and the amounts spent, and to stiffen the penalties for electoral offences such as “personation” (impersonating another voter). These had been endemic in the 1880 general election: thirty-nine election petitions had been presented in its aftermath alleging corruption, and eighteen MPs were unseated as a consequence. The conference was attended by party workers from as far afield as Liverpool and Southampton.102 Scrutton delivered a paper on “The Corrupt and Illegal Practices Act as Affecting Municipal and Other Local Elections”, a lawyerly paper on a very technical subject. Scrutton began by “clear[ing] away those parts of the law on the subject which are comparatively certain” before “reaching the point of more interest and more difficulty”. He concluded in characteristic terms: So much for the law as it is; I need not occupy much time on the law as it ought to be. It is certainly desirable that these petty elections should be as cheap and spontaneous as possible; and it is very doubtful whether any of them should be fought on party lines. It is certainly undesirable that the law relating to them should have as at present to be hunted up from halfa-dozen different statutes.

Scrutton also produced a pamphlet on the Act – Synopsis of the Parliamentary Elections (Corrupt and Illegal Practices) Act 1883, for the Use of Those Taking Part in Elections, Other than Candidates and Their Election Agents – whose wordy title belied a punchy and practical summary of the Act and the consequences of non-compliance with its provisions.103 He was part of a delegation from the union to the Attorney General, Sir Henry James, urging the extension of the Act to municipal elections.104 When the union held a large conference for Liberals in Colchester in July 1885, Scrutton was one of the speakers on the panel.105

102

103

104

Report of the Conference of Officers of the Liberal Associations upon the Corrupt and Illegal Practices Act 1883 (University of Bristol Selected Pamphlets); The Times, 12 December 1883. T.E. Scrutton, Synopsis of the Parliamentary Elections (Corrupt and Illegal Practices) Act 1883, for the Use of Those Taking Part in Elections, Other than Candidates and Their Election Agents (London School of Economics Selected Pamphlets). 105 Daily News, 23 January 1884. Daily News, 23 July 1885.

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3.7

The Eighty Club

In addition to his work at the grassroots, Scrutton was also active a little further up the Liberal hierarchy, as a member of the Eighty Club. The Eighty Club began its life as “Mr. Grey’s committee”, a Liberal dining club formed by Albert Grey, Sir Henry James, Lord Grosvenor and other “enthusiastic young Liberals” in “the dusk of a December afternoon” in 1879, in anticipation of the general election the following year.106 It soon became moribund, but in 1881 it was reconstituted, the office bearers were changed and it became dedicated to encouraging political education along Liberal principles and improving Liberal organisation. It took its name from the Liberal triumph at the general election of 1880. The origins of the club’s name remained a source of confusion, The Times reporting,107 The name of this organization which has of late come prominently before the public is not one of those which explain themselves. It has been supposed by many that it is a club of fourscore members but this hypothesis though natural and plausible is erroneous. Properly speaking it is the eighteen hundred and eighty club but even this explanation requires to be explained. The club has not been formed, as would naturally be supposed, to advocate the principles of 1880 or to enforce the lessons which good Liberals assume that memorable year has taught them.

The object of the club was to “promote political education or to stimulate Liberal organization”, and membership was open to those under forty years of age.108 The club made speakers and lecturers available to local Liberal Associations, and also held dinners at which prominent Liberals were invited to speak. Scrutton attended one such dinner at which Gladstone was the guest speaker on 11 July 1884,109 and was one of the seconders of the vote of thanks – following Haldane and Asquith – in December 1885.110 At or shortly after this time, he became a member of the club’s committee. Speaking in 1886, the secretary of the club, J.A.B. Bruce, “stressed the rapid growth of the club in numbers and in influence, stating that the members of the club had attended either directly 106

107 109

110

The Times, 20 May 1887 (letter from Mr Arthur Elliott MP), 24 May 1887 (letter from R.B. Haldane MP), 15 June 1886 (letter from “The Eighty Club”). 108 The Times, 29 April 1885. The Times, 9 June 1886. Eighty Club Banquet to the Right Honourable W.E. Gladstone M.P., 11 July 1884, Earl Grey Pamphlet Collection; The Times, 12 July 1884. Daily News, 22 December 1885.

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through the executive committee or on their own account 5000 or 6000 meetings during the past year in furtherance of the Liberal cause”.111 The Club originally represented “almost every shade of Liberal opinion”, with recruits from “the Universities, from the Bar, from every class and creed of Liberalism”. It was an organisation without funds; “its working members were for the most part young men whose wealth lay chiefly in their brains”.112 Membership of the Eighty Club was particularly popular amongst lawyers. These included three future Lord Chancellors in R.T. Reid QC MP (the future Lord Loreburn), Haldane and Sir George Cave; two future Law Lords in J.A. Hamilton (the future Lord Sumner, who joined when at Magdalen College, Oxford, still in the throes of his youthful Liberalism); and Sir Charles Russell (the future Lord Russell of Killowen); two future Lord Chief Justices in Rufus Isaacs (later Lord Reading) and Gordon Hewart; and the future judges John Fletcher Moulton QC and Sir Walter Phillimore.113 There were other lawyers who were to make their mark in other fields: Herbert Asquith, David Lloyd George, Heber Hart, the future Fabian Sidney Webb and Oscar Wilde. As a barrister, Scrutton appeared with, against and before most of them, the Eighty Club proving a useful source of professional contacts for someone embarking upon a legal career.

3.8

The damnable question

George Dangerfield’s seminal study of Anglo-Irish relations, The Damnable Question, took its title from Asquith’s observation to his wife that “you will never get to the bottom of this most perplexing and damnable country”. The Irish Parliament had ceased to exist with the passage of the Acts of Union in 1800, but the Irish aspiration for self-determination had not passed with it. By 1870, the latest iteration of that movement was the campaign for “Home Rule” launched by Isaac Butt, an Irish MP, at a meeting in Dublin Castle in that year. By 1874, there were fifty-nine Home Rule MPs sitting in the House of Commons from Irish constituencies. While Home Rule carried the day in Ireland outside the Unionist bastions of Dublin and Ulster, it remained an unpopular cause in England. In 1877, when Butt’s party placed their annual Home Rule motion before 111 113

112 The Times, 6 March 1886. The Times, 15 June 1886. See Bodleian Library, MS. Eng. D. 2007 (Eighty Club Candidates Book, 1883–1885); Ms. Eng. 2000 (Notebook for Mr. Grey’s Committee); MS. Eng. E 2003 (list of constituencies and names and addresses); The Eighty Club (1895).

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the House of Commons, it was defeated by 417 votes to 18, with only one English member (Sir Wilfred Lawson) speaking in favour, and only eight voting in favour.114 Scrutton, who was a committed Home Ruler from at least 1878, was far ahead of the mainstream of English political thought on this issue. From 1878, the Home Rule cause at Westminster was pursued by the Irish Parliamentary Party under the leadership of Charles Stewart Parnell, who adopted a more obstructionist strategy than Butt had pursued.115 It was not until August 1885 that Gladstone privately came to his momentous decision to support Home Rule. He had not announced that decision before the general election of 21 November 1885. As a result, Parnell sought to turn out the large Irish vote in English boroughs for Lord Salisbury’s Conservative Party, who at that stage were offering the prospect of some form of devolution measure. The outcome was a Parliament in which there were eighty-six more Liberal than Conservative MPs, with Parnell holding the balance of power with exactly that number of MPs. At this point, Gladstone’s conversion became public when his son Herbert flew the “Hawarden Kite” in December 1885, and revealed Gladstone’s change of heart to the English press. Gladstone had not informed the other leading lights in the Liberal Party – Lord Hartington, Joseph Chamberlain, John Bright, Sir William Harcourt, Lord Selborne and Sir Henry James – of his decision to support Home Rule. Only Harcourt was prepared to follow him on his new course. Chamberlain, in particular, proved a bitter and effective opponent of Home Rule and resigned from the Cabinet in March 1886, two weeks after the first Cabinet debate. Gladstone’s conversion, and Salisbury’s decision to position the Conservative Party as the defender of the Union in response, ended Parnellite support for the Salisbury government. Salisbury resigned in January 1886, and Gladstone formed his third administration. That administration introduced a Home Rule Bill providing for a significant measure of devolved government to Ireland within the United Kingdom, on 8 April 1886. Over the following two months, Gladstone’s First Home Rule Bill was the subject of extensive debate both in Parliament and in the country. The National Liberal 114

115

For good general surveys see George Dangerfield’s The Damnable Question: A Study in Anglo-Irish Relations (1977); and Sir Robert Ensor, England, 1870–1914 (1936), Chapter 1. D. Thornley, “The Irish Home Rule Party and Parliamentary obstruction, 1874–1887” (1960) 12 I.H.S. 38.

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Federation issued a circular urging local associations to hold meetings to discuss Gladstone’s proposals.116 As his contribution to that debate, Scrutton delivered a lecture to the Coggeshall Liberal Association on 14 April 1886, which was later published as a pamphlet and widely distributed by the London and Counties Liberal Union, entitled Irish History: Its Lessons to England.117 The lecture was an effective polemic for the cause of Home Rule. The question posed at the start of the lecture – why “an island endowed with great natural advantages . . . which has been under England’s complete control for 300 years . . . is yet in a state of chronic discontent and poverty, and regards the English Government as a foreign Government” – was scarcely neutral. But what followed was a scholarly account of the features and consequences of English rule in Ireland, made the more persuasive by Scrutton’s decision to “recount the leading facts . . . as far as possible out of the mouths of English governors of Ireland themselves . . . I shall give you the opinions of the English themselves, and out of their own mouths they shall be judged”. One feature of his analysis which has been amply borne out by the subsequent 120 years of Anglo-Irish relations was that “what England had refused to reason she gave to fear, and the armed Volunteers obtained from England what eloquence in Parliament had not been able to do so”. The overall tone is judicious, but there are moments of anger, such as when responding to criticisms of the Gladstone bill: We are told that Mr. Gladstone’s Bill is a “repeal of the Union” . . . And why should we cling so fondly to that Act of Union? It was born in bribery and bolstered by bayonets; it was unlovely in its birth and unsuccessful in its life; to the countries it professed to unite, it has brought not peace but a sword; and I for one shall assist with joy at its death and burial, only regretting they have been delayed so long.

Chamberlain’s question whether coercion was to be applied “to the loyal and law-abiding” one-fifth of Ireland who opposed the bill was met with scorn: “if they are law-abiding they will not need to be coerced to obey the law”, and “what about the four-fifths who have been habitually coerced since the Act of Union?” The following month, Scrutton joined Lord Wolverton in addressing a “crowded and enthusiastic meeting” held 116

117

P.C. Griffiths, “The Caucus and the Liberal Party in 1886” (1976) 61 History 183 (“Griffiths”). Irish History: Its Lessons to England, Being a Reprint of Lecture Delivered before the Coggeshall Liberal Association on April 14th, 1886 (Bristol University Selected Pamphlets).

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at the Albany Hall, Kingston-on-Thames, at which a resolution was passed in favour of Home Rule.118 The overwhelming majority of local Liberal Associations came out in favour of Gladstone’s policy: even (after initial equivocation) the Birmingham Association, historically Chamberlain’s fiefdom. However, Francis Schnadhorst, Chamberlain’s right-hand man in Birmingham before their split over Home Rule, warned Gladstone, “It is certain that the great majority of the party is with Mr. Gladstone – it is not equally certain he would get a majority of the House of Commons”.119 The bill was defeated in its second reading on 8 June 1886 by 343 votes to 313, with ninety-three Liberals voting with the majority. Gladstone dissolved Parliament the following month. In the ensuing general election, there were two sets of Liberal candidates: those who supported Gladstone’s policy of Home Rule and the Liberal Unionists (running with the tacit support of the Conservative Party) who were opposed to it.

3.9

A Home Rule election

Scrutton was on the Eighty Club’s list of candidates for the election.120 He was not particularly fortunate in the seat he secured: the Limehouse Division of Middlesex, now in the London Borough of Tower Hamlets, in which his father had chaired a Home Rule meeting in May 1886 and where Scrutton had campaigned in the 1880 general election.121 The sitting MP was Edward Samuel Norris, a merchant and manufacturer of leather products, who had defeated George Minchin, the Liberal and Radical candidate, by 2,566 votes to 1,676 at the 1885 general election.122 It was, moreover, a working-class constituency, and, as Chamberlain had warned Gladstone, the working classes were “distinctly hostile to Home Rule”.123 Perhaps seeing the writing on the wall, Minchin announced in June that he would not contest the seat at the next election.124 Scrutton’s election petition was published on 21 June 1886. It announced that the election would answer “one of the most important questions that have ever been put to the Electors of this country . . . How shall Ireland be governed?” Scrutton declared that “for the last ten years I have advocated Home Rule for Ireland and I now rejoice in the prospect of an early 118 120 121 123

119 Daily News, 13 May 1886. Quoted in Griffiths, p. 188. See Bodleian Library, MS. Eng. D. 2007 (Eighty Club Candidates Book, 1883–5). 122 Daily News, 7 May 1886. The Times, 25 June 1886. 124 Griffiths, p. 186. The Times, 15 June 1886.

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victory”. In addition to the Home Rule question, he described himself as belonging “to the Radical wing of the Liberal Party” and stated that he was in favour of reform of the House of Lords, “by lessening the influence of the hereditary element and removing its character as a class assembly”, and for reform of land law, “believing that the ownership of the land of a country by a large number of its citizens is . . . essential to its stability and prosperity”. The Limehouse Division of the “Tower Hamlets 200” – the Liberal organizing committee for the constituency– adopted Scrutton as its candidate with one dissentient, and his father’s friend James Bryce subsequently addressed a crowded meeting which passed a resolution in Scrutton’s favour, with only three hands not raised in support.125 Soon the Eighty Club was appealing for candidates to speak at a meeting on his behalf.126 That meeting took place on 30 June, with the Limehouse Town Hall packed with an audience estimated at between 1,200 and 1,500. Minchin, Scrutton’s predecessor as Liberal candidate, was in the chair, and the guest speaker was Willie Redmond, an Irish Parliamentary MP127 and brother of the future Irish Nationalist leader John Redmond.128 A Conservative supporter – Mr Honig – spoke in favour of Home Rule, and “during the evening a congratulatory telegram from Mr Gladstone wishing Mr. Scrutton success was read and received with great enthusiasm”. As the meeting reflects, this was a single-issue election. That ensured the Irish vote for Scrutton – the East London Hibernian Club and Institute issued numerous green placards and handbills urging Irish voters to vote for him. The Daily News was initially optimistic about his chances, noting that “there has not been much evidence of dissentient Liberalism in the Division at present”, although the Conservatives sought to play on the division, distributing a circular signed by “A Dissentient Liberal” advising Liberals to vote for Norris. The paper suggested that “the supporters of Mr. T.E. Scrutton have met with several Conservatives who intend to poll 125 126 127

128

Pall Mall Gazette, 23 June 1886; The Times, 2 July 1886 and 25 June 1888. Pall Mall Gazette, 26 June 1886. Redmond did not live to see Home Rule implemented: he died serving with the Royal Irish Regiment at the Battle of Messines in 1917, four years before the Anglo-Irish Treaty of 1921, when once again “what England had refused to reason she gave to fear, and the armed Volunteers obtained from England what eloquence in Parliament had not been able to do so”. Daily News, 1 July 1886.

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for Mr. Scrutton simply because they think Ireland ought to have Home Rule” and concluded in optimistic terms: Mr Scrutton is supported by the numerous Irish voters and by the teetotallers and though only a fortnight in the field his canvassers have worked the division thoroughly. Altogether he has a very good chance of turning Mr. Norris’ majority of 890 into a minority.129

Others were less sanguine, and as events were to turn out, more realistic. The Pall Mall Gazette noted that “at Limehouse there is a heavy Tory majority of 890 to wipe out” and that the Liberals should not count on votes from Conservative supporters of Home Rule: “Liberals will do well not to put too much reliance on their existence. The Tories will vote Tory in Limehouse and elsewhere. Mr Scrutton’s chance lies in the Irish vote but whether it is strong enough to turn the election is more than doubtful”.130 Scrutton was felt to have run a good campaign: a report before the vote noted that “a general hopefulness pervades the Liberal party, and whether Mr Scrutton (L) wins or loses, he has done enormous service to the party in bringing its organisation into a perfect state”.131 Shortly before the poll, the Conservatives sent a letter to all the Liberal voters in the borough signed by “A Fellow Liberal” denouncing Gladstone and the Home Rule policy, and there was difficulty in mobilising the Liberal vote. The Daily News reported: Mr. Scrutton (L) who has so pluckily attacked Mr. Norris (C) whose majority was over 800 last year, was severely handicapped in his efforts yesterday by the apathy of large numbers of Liberal voters who although in favour of Home Rule for Ireland, would not vote. “I voted last time and nothing came of it; I won’t vote this time” was the answer of a large proportion of Liberal voters in many streets to the arguments of the workers who endeavoured to bring them to the polls. This did not tend to make Mr. Scrutton’s supporters very sanguine of the result, but they hoped to reduce the majority and pave the way for a victory for Mr. Scrutton on the next occasion.132

In addition, the Conservatives outspent the Liberals in Limehouse by a factor of three to two.133 In the event, Scrutton did not reduce the majority either: he achieved a virtually identical result to Minchin’s a year earlier, on an identical 129 131 133

130 Daily News, 5 July 1886. Pall Mall Gazette, 5 July 1886. 132 Daily News, 5 July 1886. Daily News, 7 July 1886. Daily News, 14 August 1886. Scrutton’s expenses were £246 6s 4d and Norris’s £341 16s 4d.

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turnout, losing by 2,230 votes to 1,428. In the political context, the result – a 0.5 per cent swing to the Conservatives – was a creditable performance, compared with a national swing from the Liberals to the Conservatives of 7.1 per cent. As The Times noted, “It matters not what the locality is – whether divisions peculiarly the home of the working man such as Mile-end, Limehouse or Bow – or other parts more associated with the classes – the cause of separation has been rejected.”134 A number of Liberal lawyer candidates fared badly in the Metropolis, and Scrutton was identified as one amongst them who “have yet to wait a while for a seat in Parliament”.135 The expectation that Scrutton would stand again was not to be realised: he did not stand for any elected office again. However, he remained active in Liberal politics for another ten years. The poor showing of Liberal candidates in London and the surrounding counties brought an end to the life of the London and Counties Liberal Union. Ostrogorski records that “its work and its methods of action were not properly appreciated. It was badly supported and always short of funds”, and that after the election, “the verdict was that the Union had not gone the right way to work; it was dissolved and not long after the Home Counties were annexed to the Caucus so that the latter might bring its superior methods to bear on them”.136 He paints a depressing picture of the last few months of its existence, when “the quiet lecture halls [were] deserted for the exciting meetings”, and the Union reduced to requesting lecturers, to advertising their lectures as “political addresses”, and to surrounding the lectures with the paraphernalia of political meetings.137 The result was the merger of the Union and two other London organisations – the London Liberal Radical Council and the (Metropolitan) Organizing Committee of the Central Liberal Associations – to form a new Home Counties division of the National Liberal Federation. Scrutton and his father were involved in the various meetings which brought this merger about.138 In addition, Scrutton continued to pursue the cause of Home Rule, delivering a series of lectures across London in an attempt to convert the electorate to its merits. At a meeting organised by the Whitechapel Division of the Tower Hamlets Liberal and Radical Council, in a lecture 134 136 138

135 The Times, 10 July 1886. Liverpool Mercury, 8 July 1886. 137 Ostrogorski, p. 225. Ostrogorski, p. 404. See reports in the Daily News, 9 November 1886; The Times, 12 January 1887, 19 July 1887.

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“highly applauded by an appreciative audience”, Scrutton “observed that forty years ago the Colonies got Home Rule because they were disloyal; today they were loyal because they had got Home Rule”,139 and he continued to speak in favour of Home Rule for the following year.140 It is likely that he contributed to the Eighty Club Circular, a news-sheet whose object was “the spread of information as to the actual state of things in Ireland and as to the real character of the Coercion Act”:141 it proclaimed that “the legal contributions have been prepared with great care and have been proved by eminent members of the Bar”, with the case being supported by citations from Professor Dicey’s Law of the Constitution and Jeremy Bentham’s Principles of Morals and Legislation. Scrutton also remained active in grassroots organisation. One of the key tasks for the members of the local Liberal Associations was to canvass the division, and ensure that those who were known to have Liberal sympathies were entered on the register. A revising barrister heard applications to enter, or remove, names from the voting register every autumn, and representatives of the Conservative and Liberal Parties appeared before him to lodge claims for the entry or removal of voters.142 Scrutton represented the Liberals at a hearing before the revising barrister in Greenwich in September 1888,143 and became treasurer of the Greenwich Liberals.144 On one occasion, the Conservatives objected to Scrutton’s appearance, saying that he was appearing as a barrister, something which the relevant statute did not allow, and that his appearance was “scandalous”.145 Scrutton responded that “he came here not as counsel, but within his rights as an Englishman”, and as a member of the “Liberal 200” (the Liberal organizing committee for the area). With

139 140

141 142

143 144

145

Daily News, 16 November 1886. Daily News, 20 January 1887 (Bromley-by-Bow); Pall Mall Gazette, 29 January 1887; Pall Mall Gazette (Women’s Liberal Association for South Kensington); Daily News, 21 March 1887 (North Kensington); Reynolds Newspaper, 1 November 1887 (Workmen’s Hall, Cambridge); Pall Mall Gazette, 16 November 1887 (North Islington Liberal Club – on this occasion on “A joint stock company”); Pall Mall Gazette, 5 December 1887 (East Islington Liberal Club). Copies are collected in the Bodleian Library, MS. Eng. c/2010/1. See G. Harris Lea, The Annual Work of a Borough Liberal Association (1886), University of Manchester Selected Pamphlets, for a description of the process. See e.g. The Times, 28 September 1888; Daily News, 5 October 1891. Daily News, 7 November 1891. The following year he appeared on the panel at a meeting to support the Liberal Candidate for Greenwich, G.C. Whiteley. Daily News, 1 March 1892. The Times, 1 October 1889.

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“considerable hesitation in the peculiar circumstances of the case”, he was permitted to appear. However, there is no doubt that the barrister was fast eclipsing the politician.

3.10 The Eighty Club revolt While the local Liberal Associations were overwhelmingly supportive of the Gladstonian conversion to Home Rule, sentiment in the Eighty Club more closely matched that in the Parliamentary party. Before the election, Lord Hartington told a dinner of the club that he and Sir Henry James could not support a Home Rule policy,146 and one correspondent described the club as “riven asunder” by the issue, predicting that there would be few members at the forthcoming election who “will fight under the grand old flag”.147 A policy of neutrality was maintained for the election, but it proved impossible to sustain once the Home Rule split had manifested itself in the fielding of rival candidates at the polls. By this time, Scrutton was a member of its committee, working closely with Richard Haldane, Asquith and Edward Grey, each destined to be a leading figure in Liberal governments before and at the start of the Great War.148 In April 1887, Gladstone came to the club to give a speech on “the Irish Question”, at a meeting chaired by Asquith, and Scrutton followed R.T. Reid QC in proposing the vote of thanks.149 However, the majority of the executive committee – Scrutton amongst them – refused to extend invitations to certain prominent Liberal Unionists. The disappointed Liberal Unionist members of the executive committee convened a general meeting of the club,150 at which the Liberal Unionist MP Arthur Elliott moved a motion condemning a policy of choosing “the principal guests at the dinner of the Club . . . from only one section of the Liberal Party”.151 In response, Robert Reid MP, for the Home Rulers, moved an amendment expressing confidence in the decision of the executive committee, and support for the policy of Home Rule. The Club divided 143:55 in favour of Reid’s motion, leading to the withdrawal of the minority to another meeting. At that meeting the Liberal Unionists decided to withdraw from the club. 146 148 149

150

147 The Times, 6 March 1886. The Times, 15 June 1886. Scrutton to Miss Haldane, 21 August 1928, NLS/ MS6032, folio 268. The Irish Question: Speech by the Rt. Hon. W.E. Gladstone M.P. (University of Bristol Selected Pamphlets); The Eighty Club (1895), p. 14. 151 The Times, 14 May 1887. The Times, 19 May 1887.

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The principal participants in the dispute were soon airing their positions in the letters column of The Times:152 the Liberal Unionists claiming that no speaker opposed to Home Rule had been invited to speak at the club since March 1886, the Gladstonians that the objection was only to certain individuals (and in particular Joseph Chamberlain and Lord Hartington). Scrutton wrote explaining his conduct, stating that neither the committee nor the club has ever decided, in the words of Mr Arthur Elliott, that only Home Rule statesmen shall be entertained by the Club. All the Committee decided on an amendment moved by myself was that Mr Chamberlain should not be asked to the dinner in June.

He reviewed the subsequent invitations extended by the committee since March 1886: Three Gladstonians, one Liberal Unionist and one gentleman who was claimed as a Liberal Unionist last year and is not a Gladstonian now. This proposition accurately represents if anything too favourably to the Liberal Unionist their strength in the Club and in Parliament and far exceeds their strength in the country.

For their part, the Liberal Unionists wrote complaining that the hostile terms of Reid’s motion made it impossible for them to remain: a letter to this effect was signed by Elliott, Sir George Cave and J.A. Hamilton (the first conflict in a rivalry which would endure through their careers at the Bar and on the Bench). Judgements of the participants’ conduct inevitably reflected the Home Rule prejudices of those passing judgement: The Times suggesting that the terms of the original Unionist meeting “entirely disposes of the special pleading of Mr. Scrutton”,153 stating that “that fantastic body the Eighty Club which now finds itself bereft of every principle it was called into being to promote except the great and eternal principle that Mr Gladstone must be supported right or wrong”.154 For the Gladstonian Pall Mall Gazette, “the whole history of the split and the cause of it is lucidly summarised in [the] words of Mr Scrutton”.155 It seems clear that there was a deliberate attempt by the Home Rulers – Scrutton, Reid, Haldane and Asquith prominent amongst them – to force the Liberal Unionists out. Asquith wrote of the previous position of neutrality that

152 153 155

See The Times, 20, 24, 25 and 26 May 1887 for the following. 154 The Times, 25 May 1887. The Times, 14 December 1887. Pall Mall Gazette, 25 May 1887.

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many officers have long felt that this was an intolerable situation, that the club has been reduced to a state of contemptible impotence and that it had far better cease to exist than exist only as neutral ground for social intercourse between political opponents or as affording the opportunity for occasional indulgence in after-dinner oratory.

He later recalled that Reid’s chambers in the Temple were for some years a favourite rendezvous where, in association with Haldane, Scrutton (now Lord Justice), George Greenwood, J.A.B. Bruce and other militant spirits, we organized the activities of the Eighty Club in the campaign against Coercion and in the propaganda of Home Rule.156

3.11 Scrutton’s political career in retrospect Scrutton remained a regular attendee at Eighty Club events into the 1890s. Many of these were on his own cause of Home Rule: a momentous speech by Charles Stewart Parnell on “The Irish Question”,157 another by Parnell the following year,158 and a speech by Asquith in 1890 on “Home Rule from 1886”.159 He also attended a number of speeches addressing social issues, and the challenges posed for the Liberal Party by the enfranchisement and political organisation of an increasingly workingclass electorate.160 However, his political activism had effectively come to an end by 1890, at around the time his career at the Bar took off. There is no suggestion with Scrutton, as there is with J.A. Hamilton, that his career at the Bar and on the Bench was seen by him as a consolation prize, as unsatisfactory compensation for the failure of his political career.161 If Scrutton had wished to run for Parliament again, the indications are that it would have been open to him to do so: he had acquitted himself well in the 1886 election, and remained well connected with the emerging figures in the Liberal Party, Reid, Haldane and Asquith among 156 157 158 159 160

161

H.H. Asquith, Fifty Years of Parliament, Vol. II (1926), p. 112. 8 May 1888 (London School of Economics Selected Pamphlets). 8 March 1889 (London School of Economics Selected Pamphlets). 3 May 1890 ((London School of Economics Selected Pamphlets). John Morley, Liberalism and Social Reform, 19 November 1889, The Times, 20 November 1889; John Burt, Parliament and the Regulation of Hours of Labour, 2 December 1890 (all London School of Economics Selected Pamphlets), R.B. Haldane, Social Problems 30 May 1891 (Earl Grey Pamphlets Collection). See Antony Lentin, The Last Political Law Lord: Lord Sumner (1859–1934) (2008), at pp. 3, 6, 19, 33, 242 (“Lentin”). The undergraduate verse, The Masque of Balliol, of which Hamilton was one of the authors, expressed the position in the following terms: “My name is Hamilton; my mission is to be a politician”.

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them. It may safely be inferred that Scrutton’s political career came to an end because he chose not to continue it. It was once said of Lord Atkin, who sat with Scrutton in that most celebrated of Courts of Appeal in the 1920s, that he “owes nothing to politics”.162 The statement could not be transposed in unqualified terms to Scrutton. The sincerity of Scrutton’s Liberalism, and in particular his passion for Home Rule, is not open to question. He was a Liberal by conviction, rather than by convenience, pursuing the Liberal goal of “an orderly, intelligent and rational advance into the future”.163 However, Scrutton’s membership of the London and Counties Liberal Union and the Eighty Club also proved a source of valuable professional connections, and a way of raising his professional profile. As Antonia Taddei has noted, for lawyers, “clubs facilitated the development of a network of mutually profitable semi-professional acquaintances”, and no doubt for this reason lawyers were prevalent “clubmen”.164 There was also a marked correlation between political prominence and success at the Bar. The number of future legal luminaries in the Eighty Club has already been noted: as membership was around 200 when Scrutton joined, the Club offered junior lawyers a reasonable prospect of meeting the leaders of their profession in a social context. In the late Victorian era, one-fifth of MPs were barristers, the overwhelming majority of them active in practice while pursuing their political careers, with enhanced prospects of taking silk and of obtaining a judicial appointment at the end of their Parliamentary careers.165 As will be seen in Chapters 4 and 6, many of those Scrutton first encountered in organizing committee meetings or Eighty Club dinners he was also to encounter in court, as opponents and judges and later as judicial colleagues. 162 163 164

165

Sir Miles Mattinson quoted in Geoffrey Lewis, Lord Atkin (1983), p. 19 (“Lewis”). Dangerfield, The Damnable Question, p. 61. Antonia Taddei, “London clubs in the late nineteenth century” (University of Oxford Discussion Papers in Economic and Social History, Number 28, April 1999). Scrutton did not join a fashionable London club until 21 March 1895, when Arthur Cohen QC, his former colleague in the London and Counties Liberal Union, proposed him for membership of the Reform Club. Information from the Reform Club. However, he was not an active member and never joined any club committees. Duman, Chapter 6, for this and following: he noted that of fifty-four practising barristers elected to the 1880 House of Commons, two-thirds secured at least one professional appointment.

4 “Patient, laborious asses”: onwards and upwards at the Bar

4.1

The Bar in the 1880s

If there were promising decades in which to begin a career at the Bar, the 1880s was not one of them.1 In 1881, a committee under Lord Coleridge had produced a series of reforms intended to increase the speed and reduce the costs of litigation. New Rules of Court followed, which simplified pleadings and reduced the number of occasions on which fees for two counsel could be recovered by a successful party. One junior barrister writing in The Times in 1884 summarised the position in the following terms: During the last few years there has been a tendency in the Acts to minimize the expense of legal proceedings by diminishing the number of stages and hands through which the work has to pass. This change is being made by gradually handing over to solicitors exclusively the easier portion of the work . . . These alterations, however beneficial, have the effect of depriving younger barristers of the major portion of the work which they might hope to get and use as a stepping stone to further practice.2

Concluding that “the position and prospects of the Bar should act as a warning to the shoals of young men who, without powerful interest, enter each term at the various Inns of Court”, the Law Times noted in 1883 that as a body the Bar “is growing poorer”,3 and, observing an advertisement for the sale of a wig and gown “little used”, suggested that “advertisements of the following description will probably multiply as the new rules become more appreciated”.4

1

2 4

In addition to the specific references which follow, this account draws on Brian AbelSmith and Robert Stephens, Lawyers and the Courts: A Sociological Study of the English Legal System 1750–1963 (1967), and Duman. 3 The Times, 4 January 1884. (1883) 75 Law Times, p. 121. (1883–4) 76 Law Times, p. 53.

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The new rules were not the only challenge. The Royal Courts of Justice on the Strand – opened with much pageantry by Queen Victoria on 4 December 18825 – necessitated a significant increase in court fees to pay for the building, something which it was feared would be a deterrent to litigation. In addition, there was a drift of commercial work away from the courts and into arbitration.6 The Law Times noted that “city men have lately been heard to say that owing to the law’s delays, much lucrative judicial business finds its way to informal tribunals”.7 It complained that while “it is usual to talk of commercial litigation having left the courts, we fear matters are much worse than this”,8 and that “one result of commercial cases going to arbitration is that many disputed questions must remain unsettled”.9 A letter from “a barrister’s clerk” summarised the state of the Bar by the end of the decade as follows: of the 8,000 barristers, only 5,000 had a practice. Of those 5,000, only 1,000 earned £1,500 a year, while “the number of barristers who make £5,000 per annum does not probably exceed ten. Even the makings of the big-pot among them are quite absurdly exaggerated”.10 The Law Times suggested that “mediocrity . . . is characteristic of seven-tenths of the bar”.11 For those barristers fashionable, well connected or brilliant enough to secure work, the financial aspects of practice at the Bar involved many familiar features, some applied in unfamiliar ways, and a number of unfamiliar (and undoubtedly restrictive) practices. Barristers were paid a brief fee; albeit as a notional honorarium it did not give rise to an obligation on the recipient’s part to attend court at all, still less for any particular portion of the case. Complaints about particularly popular barristers who either did not turn up or only put in a token appearance and then left the case in the hands (capable or otherwise) of the junior were common in the legal press and at meetings of the Incorporated Law Society and the various provincial law societies. A prevalent feature of law reports of the period is the giving of the junior’s name when the arguments are summarised, followed in parentheses by “Mr. Bloggs Q.C. with him”. Only in 1885 did it become the practice for the brief to be repaid when the barrister failed 5 6

7 9

10

The Times, 5 December 1882. See generally V.V. Veeder and Brian Dye, “Lord Bramwell’s Arbitration Code 1884– 1889” (1992) 8 Arbitrational International, 329. 8 (1891) 91 Law Times. (1891–2) 92 Law Times, p. 2. (1891–2) 92 Law Times, p. 17. See also the letter from T.G. Carver in The Times, 18 November 1892. 11 (1890) 89 Law Times, p. 13. (1883) 74 Law Times, p. 294.

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to appear, something which the Law Journal noted would have made earlier generations of practitioners “stare and gasp”.12 By the 1880s, the practice of paying “refreshers” had become established in common law cases; albeit the appropriate figure for a refresher was frequently an issue of controversy between the two branches of the profession. Mr Rigby QC demanded a minimum refresher of twentyfive guineas, his clerk informing the solicitor of “his determination” to take nothing less.13 Sir Edward Clarke complained when his solicitor reduced the refresher he had charged from twenty guineas per day to ten,14 whilst the taxing master imposed more drastic reductions: in one case allowing only two guineas for the Attorney General, one for the second QC and nothing for the junior.15 By the end of the decade, the refresher was fixed as payable after five hours had been completed in court, with a new refresher accruing with each subsequent five hours.16 Another expense was the payment of clerks’ fees: payable by the client and not the barrister. One solicitor complained of the inevitable clerks’ fees, which latter again is a barbarous, unreasonable custom . . . Let counsel, who by the way are supposed to receive ready money payment with their instructions, pay their clerks (who are mere machines and know nothing of the theory and practice of law, as do solicitors employé).17

Clerks’ fees were paid to the senior clerk, who frequently clerked only one barrister, and would accompany him on circuit.18 The going rate was 2.5 per cent of the brief fee, and 5s or 2s 6d for conferences and consultations. The barrister’s clerk remained an important factor in his success. A.E. Bowker, clerk to Sir Edward Marshall Hall, gave advice which his twenty-first-century successors would still endorse: the wise young man at the Bar, and the man likely to get on in the profession, is he who does not interfere with his clerk’s arrangement but goes where he is sent without question and does pretty much what he is told.19

12 13

14 16 17 19

(1885) 20 Law Journal, p. 471. (1886) 82 Law Times, p. 106. The solicitors wrote to Mr Rigby: “your clerk speaks of ‘his determination’ but he is nothing to us and so we write to you direct”. 15 (1884) 77 Law Times, p. 254. (1886) 82 Law Times, p. 93. (1891–2) 92 Law Times, p. 3: Owners of Wild Rose v. Owners of Courier, 7 November 1891. 18 (1887) 83 Law Times, p. 51. A.E. Bowker, Behind the Bar (1947), p. 27. Bowker, p. 11.

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The importance of the clerk can be seen in the gifts and legacies which often came their way: Josiah Benjamin QC gave his senior clerk 500 guineas, and his junior clerk fifty guineas, on his retirement,20 and Scrutton left a bequest to his clerk in his will. Barristers were required to attach themselves to a particular circuit, and if they appeared outside that circuit they were obliged as a matter of professional conduct to demand a “special fee” of 100 guineas for a Queen’s Counsel, and fifty guineas for a junior in addition to their ordinary fee. In 1852, a barrister could appear in any court on the direct instruction of his client, with the exception of the county court, but by 1888 this was no longer permitted in contentious matters. The need to instruct a junior to accompany a Queen’s Counsel had developed from a common practice into a rule of professional etiquette by 1890,21 and the “two-third rule” – a requirement that the junior receive between twothirds and three-fifths of the leader’s brief – had become a “longestablished practice”, if not yet a matter of professional etiquette.22 One barrister who returned his brief when he failed to secure the requisite ratio complained, “There were no doubt men at the Chancery Bar who would accept a brief marked with a half-fee or less, but he knew of no counsel of any position who had done so.” Success at the Bar was, to a significant extent, dependent on social and professional connection,23 and in these respects Scrutton was particularly well placed. Duman notes that “the sons of businessmen were exceptionally successful in reaching the benches of the superior courts, and this may be attributed in part to the business that their families could put their way”. Scrutton was not merely the scion of a shipping family, but of a family which was very active and prominent in the shipping world: Thomas the younger was a prominent member and ultimately president of the Chamber of Shipping,24 and frequently featured in deputations or working parties of shipowners.25 Just as Sir John Bigham was able to “establish himself as one of the leading commercial lawyers in his home 20 22 23

24 25

21 (1882) 74 Law Times, p. 365. (1889–90) 88 Law Times, p. 443. The issue is discussed in the (1889–90) 89 Law Times, p. 184. While the proposition is self-evident, it is supported by Daniel Duman’s careful study of the role of connections and patronage at the nineteenth-century Bar in Duman, pp. 89–120 and 169–99. The Times, 23 March 1888, 9 February 1889. See e.g. The Times, 2 September 1889 (leading a deputation of shipowners in discussions over a threatened dock strike) and 7 August 1885 (giving evidence on behalf of shipowners to the Royal Commission on Merchant Shipping).

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town [Liverpool], in part as a result of his connections with its mercantile community” (his father was a leading Liverpool merchant), so also Scrutton benefited from a network of commercial contacts in London. He also benefited from his Liberal Party political connections, in an age when the legal and political worlds were closely interwoven. Finally, and notwithstanding the warning of many a senior clerk to a junior barrister that no work ever came from a book, he also benefited from his publications in the fields of copyright and shipping law in building his practice. While the legal career of Scrutton’s close contemporary J.A. Hamilton took years to take off – it was only in his sixth year of practice that he earned more than £100 in fees26 – Scrutton made steady progress from the outset.

4.2 Starting out Scrutton’s early years at the Bar are likely to have involved “devilling” for A.L. Smith, until the latter’s elevation to the Bench in 1883, much as John Gorrell Barnes had devilled for J.C. Mathew, as he “gradually worked into Mathew’s style and really went through practically all his Chamber work”.27 This practice was so widespread that rules of etiquette developed regulating the relationship of the leading and juniors bars in this respect, to meet the concern that the “devil” brought in by the leader to help him get up the case would shine so brilliantly in front of the solicitor and lay client as to leave the junior unwanted in the shade. Scrutton moved into his own chambers, initially 6 Pump Court,28 and in 1884 to 1 Essex Court.29 Fledgling barristers usually had to leave the metropolis for the circuits and the county quarter sessions, to gain the opportunity to display their skills to solicitors in a smaller talent pool. Scrutton joined the South East Circuit30 and became attached to the Hertfordshire and Chelmsford Quarter Sessions. Mackinnon suggests 26

27

28 30

Lentin, p. 24. This was so notwithstanding strong support from the dominant figure at the Liverpool Bar, John Bigham QC. Lentin suggests that “it may have been his manner, an inner reserve, masked by frosty superciliousness and a sharp tongue” which impeded Hamilton’s progress, although a contest for who, between Scrutton and Hamilton, had the sharper tongue would have been a keen one. J.E.G. De Montmorency, John Gorrell Barnes, First Lord Gorrell (1848–1914): A Memoir (1920), p. 50. 29 Law List (1883); Business Directory of London, 1884, Part 1. Law List (1884). Joseph Foster, Men at the Bar: A Biographical Hand-List of the Members of the Various Inns of Court Including Her Majesty’s Judges, 2nd edn (1885), p. 417.

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that, having joined the circuit, he never went on it again,31 but in March 1883 Scrutton wrote to John Murray explaining that he expected “to be at sessions until the end of next week”.32 However, his practice soon became one almost wholly confined to London:33 Frank Mackinnon recalled that when he became a member of Scrutton’s Chambers “there was no connexion with any circuit” and so he decided not to waste any of the very little money he had by joining one.34 While many barristers had local connections in the provinces which were not available to them in London, Scrutton’s personal and business connections were in the capital. Scrutton’s clerk was Mr Yorke, who remained with him to the end of his legal career, becoming his legal clerk when Scrutton was appointed to the Bench.35 In June 1883, Scrutton wrote that “he had been very full of work lately”,36 and his first reported trial took place the following month. Scrutton acted for a solicitor seeking payment of his bill, before Mr Justice Lopes and a jury.37 Scrutton called the solicitor as his first witness, and must have been particularly pleased when the judge said at the end of his evidence that the defendant “would have very uphill work to make the jury believe that there had not been a retainer”. Thus emboldened, Scrutton asked the judge whether he need call any further witnesses, an improvident question which met with the obvious response that he should take his own course. The judicial wind did not change course, and Scrutton had his first victory. There were also the innumerable hearings in chambers, interlocutory applications and small debt enforcements, which are the staple diet of the civil barrister’s early years.38 The process was no doubt bruising. Looking back from the heights of the Court of Appeal, Scrutton told the boys of Mill Hill School that 31 32 33

34 35 36 37 38

Mackinnon, Oxford Dictionary of National Biography. Scrutton to John Murray, 28 March 1883, John Murray Collection, NLS/MS41075. Evidence Taken before the Royal Commission on Delay in the King’s Bench Division (Cd.7178) 1914 P.P. 37/21, at p. 98. Sir Frank Mackinnon, On Circuit: 1924–1937 (1940), p. 3. The Times, 3 October 1934. Scrutton to John Murray, 28 June 1883, John Murray Collection, NLS/MS41075. The Times, 10 July 1883. On occasions these creatures of the legal depths surface in the light of the law reports – in Scrutton’s case with sufficient frequency to provide some evidence of the unseen mass below: see, for example, Waterhouse & Co. v. Gilbert, (1884–5) L.R. 15 Q.B.D. 569; Rumley v. Winn, (1889) L.R. 22 Q.B.D. 265; and Steedman v. Hakim, (1889) L.R. 22 Q.B.D. 16, all Court of Appeal decisions which began as chambers’ hearings and in which Scrutton appeared.

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fifty years ago when he advanced in the school to receive his present of books . . . he thought he was a fine fellow and he had also thought at Trinity College Cambridge that he had some merits but a year or two at the Bar took all that sort of nonsense out of him.39

He may well have had in mind experiences such as his outing before the Court of Appeal for a moneylender seeking summary judgment on a loan from a clergyman, a welcome reminder that even those destined for the judicial heights have been toyed with in their early careers.40 Lord Coleridge suggested, “Is it not a case which ought to be submitted to a jury?” and when Scrutton asked, “What can possibly be said in answer to the action”, he replied, “I fancy a good deal will be said”. Scrutton’s suggestion that an adverse verdict for the defendant could not be conceived of met the response, “I can just conceive the possibility of a verdict for the Defendant”, and when Scrutton suggested that such a verdict would be set aside by the Court of Appeal, Coleridge said, “That I can less readily conceive of”. Scrutton’s protest that the defendant freely entered into the loan provoked the comment from Coleridge, “He was as free as a fish in an aquarium”, and from Mr Justice Mathew, “Or as a ‘toad under a harrow’”. John Eldon Bankes for the clergyman was not called on. Scrutton soon made a presence in more substantive matters, and in diverse areas of the law. In March 1888 he was junior to Sir Henry James (a prominent Liberal lawyer who broke with Gladstone on the Home Rule issue) in a tax case “of the very highest importance” in the Court of Appeal, in which he made the submissions in reply, and he appeared in the matter the following year before the House of Lords,41 and in another House of Lords tax appeal two years later.42 He was led by Sir Charles Russell, a leading Liberal Home Ruler and fellow Eighty Club member, in a dispute about a mortgage on a valuable racehorse.43 Scrutton acquired a libel practice,44 and appeared in a number of licensing hearings before

39 41

42

43 44

40 MHM, July 1923. Parker v. Brand, The Times, 23 April 1891. Colquhoun v. Brooks, The Times, 30 April 1888; (1888) L.R. 21 Q.B.D. 52; (1889) 19 App. Cas. 493. Metropolitan Railways Co. v. Fowler, [1892] 1 Q.B. 165; [1893] A.C. 416. He later appeared in Farmer & Co. Ltd v. Inland Revenue Commissioners, [1898] 2 Q.B. 141; Goerz & Co. v. Bell, [1904] 2 K.B. 136; Knights Deep Ltd v. Inland Revenue Commissioners, [1900] 1 Q.B. 217; King v. Commissioners of Income Tax, The Times, 23 May 1903. Goater v. Godfrey, The Times, 13 August 1890 and 10 April 1891. Weldon v. Riviere, The Times, 16 November 1888; Wilson v. Lloyd, The Times, 18 May 1892; Broad v. Pryce, The Times, 26 June 1892 (acting for the president of a Nonconformist college in a case which may well have reached him through a family connection). For

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the London County Council or other bodies resisting applications for music and dancing licences.45 He did not appear regularly in the Chancery Division, being “wise enough to keep out of equitable conundrums”.46 He had a substantial copyright practice, which is the subject of the next chapter, and even appeared in criminal cases. These included pursuing a charge of perjury on behalf of The Times against one of the witnesses who gave evidence before the Parnell Commission,47 prosecuting commercial frauds48 and as a junior defence brief in the muchreported “Lambeth Poisoning Case”. This was as authentic a Victorian murder trial as one could hope to see, in which the defendant is alleged to have killed women on both sides of the Atlantic, and is said to have confessed to being Jack the Ripper on the threshold of his execution.49 However, crime, even in its more melodramatic forms, held little appeal for Scrutton, and he appears to have given the unfortunate impression that he felt himself above it. Edward Abinger, a contemporary, said of him, I don’t think he cared very much for the sordid atmosphere of the criminal courts. Charles Gill once told me that Scrutton excused his appearance at the Old Bailey to him, stating he would only appear in commercial cases there, which annoyed Gill so much, as he told me, that he read through the indictment in the case very carefully and got it quashed.50

For those inclined to doubt the story, it is also told by Sir Chartres Biron,51 who recounts an Admiralty prosecution at the Old Bailey by

45

46 47 48

49

50 51

later libel cases see Thomas v. Bradbury Agnew & Co., [1906] 2 K.B. 607; and Vizetelly v. Music Select Library, [1900] 2 Q.B. 170. See Daily News, 24 October 1891; The Era, 14 November and 26 December 1891; Lloyd’s Weekly Newspaper, 27 December 1891; The Times, 27 October 1892, 4 October 1895. In some of these cases, we know that Scrutton was instructed by an LCC councillor, who may have been known to him in Liberal circles. See also R. v. Bird ex parte Needles, [1898] 2 Q.B. 340. Scrutton to Miss Haldane, 21 August 1928, NLS MS 6032, folio 268. Daily News, 15 February 1889. The Times, 26 May 1893 (prosecuting conspiracy to defraud on behalf of the London Association of Shipowners and Brokers), 1 August 1892 (being led by the SolicitorGeneral in the Old Bailey prosecuting an insurance fraud). The Times, 20 and 21 October 1892; Leeds Mercury, 19 and 21 October 1892; Western Mail, 19 and 20 October 1892 (“the Great Poisoning Case”). Edward Abinger, Forty Years at the Bar (1930), p. 22. Sir Chartres Biron, Without Prejudice: Impressions of Life and Law (1936), pp. 157–58 (“Biron”).

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Scrutton, who, he says, “was not a meek man, and his methods were not always conciliatory”. He recalls that “a good deal of fuss was made about fixing the date of the case which, as he firmly pointed out, was desirable in view of his many engagements in more important courts”. When Scrutton got to the facts, which were “simple and fatal to the prisoner”, counsel for the defence is said to have risen “and pointed out to the judge that Mr. Scrutton had omitted in his indictment to allege that the stolen goods were the property of the Admiralty”. The case was then over, “and to the delight of the Old Bailey bar this great man returned, discomfited, to the more congenial atmosphere of the commercial court”. The allegation has proved impossible to verify, but the perception of Scrutton is itself telling. Scrutton’s commercial work – using that term in its traditional sense to embrace shipping, insurance and international sale of goods – did not leave an imprint on the law reports until the end of the 1880s. However, his close knowledge of, and unshakeable confidence in, the subject emerge clearly from a letter he wrote to the Law Times in 1887 discussing two recent House of Lords shipping cases,52 The Xantho53 and Hamilton v. Pandorf.54 It is the tone of the letter, rather than the detail of its contents, which illuminates. A statement by Lord Herschell in the first case is said to make “the ‘excepted perils’ meaningless”; Lord Bramwell in the second approves a particular definition “which is unfortunate for the definition is now wrong”. The first decision “leaves no meaning” for a clause which has been in bills of lading since 1852, while the results of the second “may be in accordance with ‘common sense’. But if so common sense seems to be, as the late Professor Ferrier said, very much like common nonsense”. Lest the reader be in any doubt as to his view of the judicial quality on display, he concluded by saying, “it is to be regretted that the House of Lords, in erecting a new fabric of shipping law, did not take away the ruins of the old building whose foundations they had destroyed”. Scrutton’s commercial practice must have embraced advisory work and appearances in chambers and arbitrations well before the end of the decade, but he first appears in the law reports in an undeniably commercial context in a series of cases acting for a firm of shipowners and brokers in a dispute with one of the London dock companies.55 This 52 54 55

53 (1887) 83 Law Times, p. 254. (1887) L.R. 12 App. Cas. 503. (1887) L.R. 12 App. Cas. 518. East and West India Dock v. Anderson and Anderson, The Times, 1 May 1890 (in which Scrutton was led by his London and Counties Liberal Union colleague, Arthur Cohen QC); Castle Mail Packet v. East and West India Docks, The Times, 14 January 1891 (led by

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may well have been “a family instruction”: Scrutton & Co. and its fellow shipowners had ongoing disputes with the various dock companies as to the costs of using the docks, complaints which eventually led Scruttons to form their own stevedoring company.56 From around the same time, Scrutton is also seen in marine insurance, collision and charterparty disputes.57 He was now not merely an established barrister, but one whose merits were widely recognised. When surveying the lawyers present at an Eighty Club dinner in November 1889, the Law Times noted that the Liberals “seem to have plenty of material for filling judicial and other vacancies when they get into power”, and identified Scrutton among the “aspiring lawyers” they were referring to.58 These were promising beginnings, but Scrutton’s reputation as a commercial lawyer was ultimately to be forged in a court which did not yet exist.

4.3 The Commercial Court Reference has already been made to the dissatisfaction on the part of the commercial community with the manner in which their disputes were resolved by the English civil courts. There were many who diagnosed a dedicated commercial tribunal as the solution to these ills.59 Scrutton’s role in a case which may have helped in bringing this to pass has been well told, both by Scrutton himself to the Cambridge University Law Society,60 and by V.V. Veeder in the Law Quarterly Review.61 Scrutton

56 57

58 59

60

61

Sir Robert Finlay QC MP, a Liberal Unionist); and London Association of Shipowners v. London and India Joint Docks Committee, The Times, 4 December 1891 and 24 February 1892; [1892] 3 Ch. 242 (led by the Conservative Attorney General Sir Richard Webster QC MP). Jeffrey, at pp. 16, 25–6. Henderson v. Underwriting and Agency Association, [1891] 1 Q.B. 557; The Petrel, [1893] P. 320; Bulman & Dickson v. Fenwick & Co., [1894] 1 Q.B. 179. (1889) 88 Law Times, p. 57. On the origins of the Commercial Court see Sir Anthony Colman, Victor Lyon and Philippa Hopkins, The Practice and Procedure of the Commercial Court, 6th edn (2008), Chapter 1. T.E. Scrutton, “The work of the commercial court” (1921) 1 C.L.J. 6. In Butcher Wetherly & Co. Ltd v. Norman, [1934] 1 K.B. 475, at p. 478, Scrutton recalled the role of the case in the origins of the Commercial Court in the following terms: “There was one case in which a general average statement involving difficult questions of principle came before a judge who probably then heard of a general average statement for the first time; he did his best, but the lay clients got tired of hearing matters quite familiar to them explained at length to the judge, who had some difficulty in grasping exactly what they were”. V.V. Veeder, “Mr. Justice Lawrance: the ‘true begetter’ of the English Commercial Court” (1994) 110 L.Q.R. 292.

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was instructed as junior in a general average case: Rose v. Bank of Australasia.62 He was led by his former London and Counties Liberal Union colleague, Arthur Cohen QC, before Mr Justice Lawrance. Some sense of the complexity of the case can be seen in Scrutton’s recollection that the claimants produced “great books of average statements, which stood two feet high, and another person produced a second book which proved the first one all wrong”. All of this proved too much for Lawrance J, described by Scrutton as “a very popular judge, who had practised in a purely agricultural county; and whose elevation to the Bench was not wholly unconnected with his devoted service to his party”.63 Scrutton’s description, while far from a verbatim account, sufficiently conveys the spirit of what followed: He carefully took down everything they said. And he said at the end “I will consider my judgment”. And three months passed, and he was still considering his judgment; and six months passed and he was still considering his judgment; and nine months passed and he was still considering his judgment. And counsel timidly took their courage in both hands, and went to ask whether his lordship would be able to give the results of his consideration shortly and he said he would. He came into court and he said this was a case raising questions of general average. “The first question was: What was the first question, Mr. Cohen?” Mr. Cohen told him what the first question was. He said: “Yes, I agree with the average stater”. “And the second question: the second question, Mr. Barnes, what exactly was it?” And so with the third question, he said, “I agree with the average stater; judgment for the plaintiff”.

This judgment was delivered in November 1891. While it can only have exacerbated the general dissatisfaction of the commercial community with the civil courts, Scrutton’s suggestion to Sir Frank Mackinnon that Lawrance was “the Only Begetter of the Commercial Court” remains unproven.64 At around the same time, committees of the Bar Committee and Council of the Incorporated Law Society were formed to consider the trial of commercial actions. In a joint report in January 1892 they expressed the opinion that “if the High Court of Justice is to regain the confidence of the commercial community, or even retain its present limited share in the settlement of mercantile disputes, it is imperative 62

63 64

As Veeder notes, the “judgment” of Lawrance J is not reported. It is printed at the end of Veeder’s article but also appears in the case papers for the eventual appeal to the House of Lords: HL/PO/JO/10/9/1416. Which, it may be noted, was not Scrutton’s party. Sir Frank Mackinnon “The origin of the Commercial Court” (1944) 60 L.Q.R. 324.

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that a separate list (hereinafter referred to as ‘the commercial list’) should be established”.65 In June 1892, the Council of Judges of the Supreme Court held its first meeting since 1886, at which various resolutions were passed, including one to establish “a Commercial Court for London cases”,66 and in the same year the Council of the London Chamber of Commerce passed a resolution that “commercial and non-commercial cases should be distinguished from the outset in our legal tribunals and kept separate up to and including trials, the commercial cases to be tried in courts devoted exclusively to the purpose presided over by specially appointed judges”.67 There were no immediate steps to implement the judges’ resolution, probably because the Chief Justice, Lord Coleridge, had opposed it,68 and in early 1894 a correspondent expressed concern that the scheme “seems to have faded from the minds of men”.69 However, on 24 May 1894, a further judges’ resolution was passed, and on 24 October a committee of Lord Russell of Killowen (who had succeeded Lord Coleridge as Chief Justice), Baron Pollock and Mathew, Charles, Wills and Wright JJ was established to draw up rules for the court. These were published on 1 February 1895,70 and the first commercial summons heard by Mathew J on 1 March 1895 and reported in a new set of law reports, the Commercial Cases. From the first Scrutton was one of the busiest juniors in the court,71 together with J.A. Hamilton. The nature and extent of his practice can be discerned from the Commercial Cases reports. In the first six years of the reports – before he took silk – he was instructed in 109 of the reported cases. These break down into fifty shipping cases, fifty insurance cases and a small number of banking and sale of goods cases. The dominant leaders in the court at its inception were John Bigham QC, Joseph Walton QC, William Pickford QC and Arthur Cohen QC, and Scrutton worked with all of them. The first three were all the sons of northern merchants, and first made their names in commercial cases at the Liverpool Bar before moving their practices to London.72 Cohen was described by one contemporary as the “most learned and courtly of

65 67 68

69 71

66 The Times, 20 January 1892. The Times, 6 and 10 August 1892. (1891–2) 92 Law Times, p. 457. Another resolution passed at this meeting – for the formation of a Court of Criminal Appeal – did not see fruition until 1907. 70 The Times, 12 January 1894. The Times, 2 February 1895. 72 The Times, 21 August 1934. Oxford Dictionary of National Biography entries.

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lawyers”,73 and was a figure of great distinction of whom Lord Justice Mathew observed, “Cohen digs and digs, and generally finds gold. I scratch the surface and sometimes find it”.74 All of them bar Cohen – the most outstanding lawyer among them – were to become High Court judges: Cohen had been offered an appointment in 1881, but he was a sitting Liberal MP, and at Gladstone’s request he declined this offer in case the resultant by-election was lost. No further offer came. Scrutton also worked with those of the more fashionable leaders of the day brave enough to venture into the court, in some cases providing some much-needed commercial ballast for their oratorical flights, including his Eighty Club colleagues Sir Frank Lockwood QC,75 Robert Reid QC and Herbert Asquith QC. Alfred Chaytor noted of such excursions, “The fashionable K.C., with a big fee, found his tremendous oratorical efforts met by the rapier of a silk who knew his job and was doing it without a fuss.”76 One of the hallmarks of the court at this stage in its history was the speed with which cases came on. Scrutton himself recalled, “I have as counsel issued a writ on Monday and tried it on Tuesday, and settled it the same day with perfect satisfaction to both parties.”77 While this was no doubt exceptionally speedy, the norm was itself impressive by current standards: Scrutton noted that actions “were frequently disposed of in less than a month from writ issued”.78 The result was a great turnover in cases for those counsel like Scrutton who were leading figures in the court, but at briefs which were “far more moderate than were the fees paid in ordinary actions were anything like the same sums at stake”.79 73

74

75

76 77 78

79

Theobald Mathew, For Lawyers and Others (1937), p. 271 (“Mathew”). Cohen could, apparently, always be recognised “from the volumes of fragrant cigar smoke issuing from either window” of his four-wheeler carriage. See Lucy Cohen, Arthur Cohen, A Memoir by His Daughter for His Descendants (1919); Albert Venn Dicey, “Rt. Hon. Arthur Cohen K.C.”, (1915) L.Q.R. 96. Lockwood, a former Solicitor-General, was better known as a criminal advocate. On one famous occasion, when congratulated by a judge on the success of his client’s alibi, he observed that he was glad it had convinced because “it was the best of three”: the client had been prepared to say he was attending a chapel service, backing a horse at a bookmaker or buying a coffin for his mother-in-law, of which options “the third seemed to present the greatest possibilities of sympathetic treatment”. Mathew, pp. 269–70. Mathew suggests that “no law-officer of recent times had such slender legal qualifications for office”. A.H. Chaytor, Essays Sporting and Serious (1930), p. 17 (“Chaytor”). T.E. Scrutton, “The work of the commercial court” (1921) 1 C.L.J. 6, at p. 16. Scrutton, The Contract of Affreightment as expressed in Charterparties and Bills of Lading, 4th edn (1899), p. 310. A.H. Chaytor was a leading junior in the court in the years running up to 1914. Chaytor, pp. 115–16, for this and the following.

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Leaders’ briefs were often of the order of twenty to thirty guineas, with juniors on the customary two-thirds, the rationale being that the business-like expedition with which the cases were considered and disposed of made it worth their while to accept moderate fees from the eminent solicitors who had most of the commercial work and who, by themselves making most moderate charges to their clients, helped to multiply the business of the Court and attracted cases that up till then had gone to arbitration.

Perhaps for this reason, the level of brief fees remained a sensitive topic for Scrutton when he was on the Bench.80 In his 1921 lecture to the Cambridge Law Society on the merits of the Commercial Court, he told them, “unless you pay extravagant fees to counsel it is cheap”.81 In one libel case in 1929, he described counsel fees of 100 guineas for the leader and seventy for the junior as “preposterous”, observing that “when I went to the Bar, 10 guineas for the case and two for a consultation would have been the fee of a leader in such a case”, and that “if that were the standard remuneration for counsel the Law Courts would be closed at a very early stage”.82 This is not to say that Scrutton did not make a good living as a leader and junior practising in the court, merely that he had to work very hard to do so. He later said that for “some fifteen years before I went on the Bench, I was earning nearly double to the salary of a Judge”83 – about £10,000. By way of a rule of thumb, this needs to multiplied by fifty to sixty to produce a 2012 value,84 but both in spending power and by reference to comparative earnings it was a great deal more:85 before Lloyd George’s “People’s Budget”, which took effect at around the time when 80

81 82

83 84

85

Although fee levels which barely register with barristers when receiving them often cause apoplexy in the same individuals once they have been promoted to the Bench, and the same fees are being paid to counsel appearing before them. T.E. Scrutton, “The work of the commercial court” (1921) 1 C.L.J. 6, at p. 18. The case was De Andia Yrarrazaval v. Willans and Redesdale, The Times, 31 July 1929, and it is discussed in Claud Mullins, In Quest of Justice (1931), p. 213. T.E. Scrutton, “The work of the commercial court” (1921) 1 C.L.J. 6, at p. 18. Roy Jenkins, Gladstone: A Biography (1995), p. 4, describes this as “the best working rule I have been able to devise . . . to multiply all nineteenth-century values into twentieth century values”, and it produces a similar result to the £570,000 generated by the National Archives currency converter. Lawrence Officer’s “Five ways to compute the relative value of a UK pound amount 1830 to present” (MeasuringWorth, 2010, available at www.measuringworth.com/ppoweruk) values £10,000 in 1910 as equivalent to £4 million using movements in average wages as the comparator or £760,000 using the retail price index.

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Scrutton moved to the Bench, the income tax rate was only 3.75%. Scrutton’s earnings for the period from 1895 to 1910 were remarkably steady, and he was regarded as making “one of the largest incomes at the Bar”.86 Bigham had been earning about £5,000 in 1886, but his fees for his last year in practice, 1897, were £15,000, by which time he was probably commanding a premium following his election as the Liberal Unionist MP for Liverpool Exchange.87 The physical demands involved in sustaining Scrutton’s practice can be seen from evidence which he gave to Lord St Aldwyn’s commission on the King’s Bench Division that “I have, as a junior, been nearly dead at the end of July, and, as a leader, nearly dead at the end of July”,88 his life–work balance wrecked by the barrister’s traditional insecurity that “a counsel cannot say to a big firm of solicitors, ‘I am not going to take this case of yours, but I will take as many of the others as you like to send’”. He told the same audience, The junior counsel in large practice is one of the hardest-worked men in England; because he does not get away when the courts rise, because he has to finish clearing up arbitrations and perhaps he does not get away for a week; then he must come back before the courts open again because cases cannot be tried on the first day of the sittings unless junior counsel have been back for some time before advising on evidence.

One suspects only half in jest, he described himself and his fellow barristers as “patient laborious asses . . . engaged in climbing of a very peculiar character towards a summit called the Woolsack . . . We are all struggling to get at the top at once and very few of us get there”.89

4.4 Pupil master In 1893 Scrutton moved to larger chambers at 3 Temple Gardens, from which he continued to practice until his elevation to the Bench.90 By this time his thriving practice had attracted pupil barristers of the highest calibre. Hugh Fraser came from Trinity Hall, Cambridge, in 1886, where he had won proxime for the Chancellor’s Prize in law. He later recalled Scrutton coaching him for a studentship and remained “most grateful to him for . . . the hammering he got from him in the works of John 86 87 88

89 90

Biron, p. 157. Viscount Mersey, A Picture of Life, 1872–1940 (1941), at pp. 8, 19. Evidence Taken before the Royal Commission on Delay in the King’s Bench Division (Cd.7178) 1914 P.P. 37/21. (1902) 4 No. 16 Climbers’ Club Journal, p. 199, “Toast to visitors”. Law List 1893.

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Austin”.91 James Atkin became his pupil in 1891,92 picking Scrutton out as his pupil master after a tour of the Law Courts: I chose for myself soon after I was called. I went into the courts one afternoon and saw a tall, bearded junior waving his arms at a judge who was listening benevolently to an address in which it was obvious the speaker was complete master of facts. I found out who he was and induced him to let me read with him. He was my master and subsequent colleague Lord Justice Scrutton, to whom I personally owe what success I have reached.93

Frank Mackinnon followed in 1897. As the son of a Lloyd’s underwriter, he brought his own network of commercial connections to 3 Temple Gardens, and was frequently Scrutton’s junior thereafter. It is to Mackinnon that we owe the following glimpse of life in Scrutton’s orbit: In those years Scrutton got through an immense amount of work, spending his time either in the courts or in the hideous room block called Temple Gardens, and in which a Spartan rigour reigned. Scrutton sat on a Windsor chair, without a cushion, at a battered writing-table, to the side of which was a table loaded with papers, that had come out of one of his father’s ships; a rough piece of wood filled the hole that had enclosed the mast. When darkness set in, the only source of light was a Victorian chandelier with fish-tail gas burners. The other two rooms were filled with devils and pupils, including at various times the future Lord Atkin, Lord Wright, Lord Justice Mackinnon, Mr. Justice Fraser and Mr. Justice Henn-Collins. At 4.15pm the group met together for some repulsive tea and dry Bath Oliver biscuits. Scrutton, silently absorbed in thinking about his work, would stride about the room until, almost daily, the top of his head crashed into the knob of the chandelier that hung from the ceiling.94

Stephen Henn-Collins, the son of Lord Collins, was called to the Bar by the Middle Temple in 1899 and joined Scrutton soon afterwards. In due course, he picked up much of Scrutton’s copyright practice.95 In 1900, Robert Alderson Wright, the son of a South Shields marine superintendent, arrived from Trinity College, Cambridge.96 No doubt these were the cream of a larger crop,97 but they comprise two High Court judges in

91 93 94 95 96

97

92 The Times, 31 October 1925. Lewis. James Atkin, “Training for success at the Bar” (1928) 3 Graya 9, at p. 10. Mackinnon, Oxford Dictionary of National Biography. The Times, 15 October 1958. Neil Duxbury, “Lord Wright and innovative traditionalism”, LSE Law Society and Economy Working Papers 11/2009. A crop which also included Sir William Harrison Moore (a distinguished Australian constitutional lawyer and professor at the University of Melbourne) ((1935) 17 Journal of

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Fraser and Henn-Collins, a Court of Appeal judge of distinction in Mackinnon, and in Atkin and Wright two of the leading Law Lords of the last century. Professor H.C. Gutteridge, himself one of Scrutton’s pupils,98 in an obituary of Atkin, said that Atkin had read “in that famous nursery of judges, Scrutton’s chambers”, and noted that he never failed to acknowledge the great debt he owed to the training he received there from that great master of the common law who by a strange and somewhat cruel turn of fate was destined to see two of his former pupils . . . advanced over his head to the highest posts in the Judiciary of the Realm.99

Scrutton’s extensive contribution to the English Bench is not only to be found in his judgments.

4.5

Life outside the law

Alongside Scrutton’s busy practice co-existed a no doubt equally busy private life. Children arrived on a frequent basis from 1885 to 1894. Scrutton believed that education was as important for his daughter as for his four sons, and Janet (the eldest) was sent to Wycombe Abbey.100 Tom was sent to Charterhouse, and the youngest three sons, John, Alan and Hugh, to Uppingham. Scrutton’s relationship with Janet appears to have been good: she recalled him as “a very warm-hearted and many-sided character”. Tom’s experience was less happy.101 A certain social awkwardness and the physical burden of his practice meant that Scrutton was “not given to spending much time talking to his sons”, and Tom told the following story, here recounted by his daughter Mary Midgley, which reveals an austere side to Scrutton’s parenting: Thus it happened that my father, when at school, once bought a fountainpen on credit, putting it down on his bill. Nothing was said at the time, but when the next Christmas came round, his present turned out to be an envelope containing a neat piece of paper on which was written, “To Tom, from Father, one fountain-pen, With love”. My father told many such stories . . .

98 99 100

Comparative Legislation and International Law 161) and the distinguished international lawyer Sir Cecil James Barrington Hurst ((1949) 26 B.Y.B.I.L. 1; (1962) 38 B.Y.B.I.L. 400). (1954) C.L.J. 197. Professor H.C. Gutteridge KC, “Lord Atkin” (1944) 60 L.Q.R. 334. 101 Family History, pp. 32–3. Midgley, p. 25.

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There were, of course, material benefits which flowed from Scrutton’s workload. By 1896, the family had moved to a new home at “Glenwood” in Mycenae Road in Greenwich:102 an “impressive late Victorian red brick mansion with half-timbered gable ends and fine joinery detailing designed by distinguished school board architect Edward Robert Robson”.103 In 1901, four servants lived in the house: a cook, a nursery nurse and two housemaids,104 together with one of Mary Scrutton’s nephews who was an articled clerk. At around the same time, the Scruttons acquired a Stanley Steam motor car:105 an American import nicknamed “the Flying Teapot” because it was powered by a steam boiler which set the record for the fastest mile by an automobile in 1906. The car – very much a luxury purchase – appears to have been bought by Scrutton for his wife. A note in the family papers states that “if the best and dearest of all wives can do with a small brougham – her unworthy husband will see whether he can roll her birthday and Christmas presents into such a vehicle”, and another that “the worst of husbands hopes if satisfactory arrangements can be made to give the best of wives as his Christmas present her carriage or carriages for the coming year – details to be supplied hereafter”.106 With increasing age and girth, Scrutton’s love affair with the bicycle had been superseded by new passions. One of these was walking – initially in the Welsh hills around Pen-y-Gwryd where he was one of a number of regular walkers. The atmosphere of time and place is captured by George Bryant: In August or September of most years, men who rarely met anywhere else spent days together on the hills and found themselves at seven o’clock (more or less) round the well-provided dinner table, dried, clothed and in their right minds . . . In that congenial atmosphere, where conventionalities were not obtrusive and the bishop or the man of law shared the sofa with the old shepherd and deferred to his opinions, men of various sorts, but united in their deep love of the mountains, grew to know each other.107 102

103

104 106 107

Kelly’s London Suburban Directory (1896). Scrutton’s letter to John Murray of 25 February 1889 suggests he was moving house at that time. John Murray Collection, NLI/MS41075. See www.greenwich.gov.uk/. . ./WestcombeParkCharacterAppraisal20104169.pdf, accessed 22 January 2011. 105 1901 Census return. Midgley, p. 48. Undated notes, Scrutton Papers, on Glenwood notepaper. George B. Bryant, “The formation of the Climbers’ Club” (1898) 1 No. 1 Climbers’ Club Journal 1; Scrutton obituary, (1934) 62 Climbers’ Club Journal 81, at p. 81: “He was one of the few remaining original members of the ‘old Pen y Gwryd days . . . Though never a

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Scrutton was one of these original Pen-y-Gwryd men, and when the suggestion was made that the intervals between climbing should be marked by a dinner in London, he became one of the earliest members of the Climbing Club. Fellow members from the legal fraternity – and at this point it was very much a fraternity – included Lord Coleridge, the Lord Chief Justice, and Sir Edward Clarke KC.108 On one occasion, Scrutton participated in a particularly distinguished tramp across the Welsh hills, in the company of the US Supreme Court judge Oliver Wendell Holmes, Frederick Pollock, Sir Leslie Stephen and the geographer and mountaineer Douglas Freshfield.109 Scrutton gave an amusing after-dinner speech at the club’s fifth annual meeting in 1902,110 confessing that he did not attempt the more challenging climbs because “I have a wife and family and am imperfectly insured”. He later became president of the club, chairing many of its annual dinners. His other, enduring, passion was golf. Although the date of first flirtation is unclear, by 1895 he was playing at Royal Ashdown Forest Golf Club and had won the handicap aggregate prize (with the benefit, no doubt, of a very considerable handicap).111 His cousin James Herbert Scrutton had joined in 1893, and his brother Frank in 1895.112 Scrutton himself joined in 1901 and his son Alan Edward in 1912. The extended Scrutton family tended to descend on the club en masse for the Easter, Whit or Autumn meetings, and always played together. In addition to Royal Ashdown Forest, golf at Sheringham was a regular feature of Scrutton’s vacations in Norfolk.113 The general consensus appears to be that Scrutton was “an enthusiastic if not very skilful golfer”.114 Country Life, reporting on the 1913 Bar tournament, said that he “plays with a

108

109

110 111 112

113 114

climber in the modern sense he was always an enthusiastic walker and spent many holidays in the Welsh mountains”. List of Members (1898) 1 No. 1 Climbers’ Club Journal 25 ff.; (1901) 12 Nos. 49 and 50 Climbers’ Club Journal. Laski to Holmes, 23 August 1928, in Mark De Wolfe Howe (ed.), Holmes–Laski Letters: The Correspondence of Mr Justice Holmes and Harold J. Laski, 1916–1935, Vol. II (1953), p. 1077 (“Holmes–Laski Letters”). (1902) 4 No. 16 Climbers’ Club Journal 199. The Times, 13 May 1895, 25 February 1901, 5 April 1904. Information from Royal Ashdown Forest Golf Club. Frank Scrutton was a rather better golfer than his brother, beating Horace Hutchinson, who had been English amateur champion in 1886 and 1887, during the Royal Ashdown Forest foursomes in 1901. The Times, 29 August 1908. Mackinnon, Oxford Dictionary of National Biography. Scrutton’s great-nephew, Philip Walton, was an accomplished amateur golfer who played in the Walker Cup.

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club so vast and heavy that one would imagine that none but Hercules could swing it”.115 Nigel Hague summarises his prowess in the following terms: “He was a man of fine stature and looked as if he ought to hit a golf ball a long distance. But he was muscle-bound and incapable of hitting the ball more than a few desultory yards”.116 An article in the Tatler noted of him that his “golf is not up to the standard of his other serious work”.117 But golf, like cycling, the Eighty Club and the Climbing Club, was another context in which we see Scrutton the sociable and convivial “club man”. In 1903, the Bar Golfing Society was formed.118 Scrutton entered for its first tournament, but scratched on the day.119 In 1906, he had two successful outings for the society against the Actors Golf Society, which saw Edward Marshall Hall KC, whom one feels would have been equally at home in either team, pitted against Gerald du Maurier and others.120 Scrutton played with varying degrees of success in the society’s tournament over the following years,121 but his election as captain at the annual general meeting in 1909 must have reflected something more than golfing prowess:122 following profound disagreement over the election for captain in 1907, “golfing ability played little or no part in their selection”.

4.6

A silk gown

A year after taking silk, Scrutton observed in an after-dinner speech, “As a junior I have been in the habit of having the most undisguised contempt for my leader. As a leader, I sit uncomfortable and feel that my junior has the same undisguised contempt for me.”123 The modesty of the second sentence is an effective antidote to the over-confidence of the first, but perhaps it rings less true. At the end of 1899, when he had been in practice for seventeen years and was forty-three years old, Scrutton applied for silk. The Glasgow Herald reported that “the Lord Chancellor has never had a more distinguished batch of applicants for the honour of a silk gown than that now before him,” among them “Mr. J.A. Hamilton, whom the busiest junior in the Common Law Courts 115 116

117 119 121 122

(1913) 34 Country Life 173–4. Nigel Hague, Wigs on the Links: A Centenary History of the Bar Golfing Society 1903– 2002 (2003), p. 116 (“Hague”). 118 Tatler, 12 October 1910. For the following see generally Hague. 120 The Times, 20 October 1903. The Times, 2 April 1906. The Times, 8 June 1906, 12 June 1908, 3 June 1909. 123 The Times, 25 February 1909. (1902) 4 No. 16 Climbers’ Club Journal 199.

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regards as the first man in stuff at the Bar; Mr. T.E. Scrutton, once president of the Cambridge Union, whose family connections and personal ability have made him an authority on commercial and shipping law”; and T.G. Horridge. “These three” – the paper reported, have really applied for silk to protect themselves against each other for with the imminent risk of the great commercial leader Mr. Joseph Walton QC going to the Bench, the rising members of the junior bar could not allow one of their number to snatch precedence.124

All three were successful in their applications, being among sixteen recipients, who also included two other future judges, Horace Avory and Samuel Evans.125 On 1 February 1901, they were called to the Inner Bar by the Master of the Rolls.126 Scrutton was forty-four years old, neither particularly young nor particularly old to obtain the honour.127 One of the features of practice at the Bar which was particularly prevalent in the Commercial Court of this period was that at any point in time, one or two advocates were able to secure a very large proportion of the available work which, on appointment to the Bench, would pass virtually en bloc to one or two barristers in the next rank, rather like the passing of an entailed estate. As the Glasgow Herald foreshadowed, the step changes in Scrutton’s (and indeed Hamilton’s) practice were not to come from their move within the Bar, but from the appointment of Joseph Walton to the Bench in October that year128 and of Pickford in 1907.129 Walton’s appointment “released a mass of commercial work”, a large part of which went to Scrutton and Hamilton, and on Pickford’s appointment the two of them “divided the bulk of business between them” until Hamilton took judicial office in 1909.130 In the nine years of Commercial Cases reports from 1901 to 1910, Scrutton appeared in 163 cases, the greater bulk evenly split between carriage and insurance cases, with a significantly smaller number of saleof-goods and banking disputes. Like all commercial barristers, Scrutton’s practice received the occasional impetus from “events”. He was involved in litigating a number of disputes arising from the Burnand scandal in 124 126 127

128 130

125 Glasgow Herald, 24 January 1900. The Times, 19 January 1901. The Times, 1 February 1901. Duman, p. 99, records that for the 1800–1901 period, 17 per cent of silks obtained the appointment when under the age of forty-two, 31 per cent between the ages of forty-two and forty-six, and 45 per cent when over forty-six years of age. 129 The Times, 22 October 1901. The Times, 6 March 1907. The Times, 21 August 1934.

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the Lloyd’s insurance market, which is said to have sprung from “a combination of misused premiums, reckless underwriting and flagrant dishonesty”.131 Percy George Calvert Burnand was one of five “names” (underwriting members) on a marine syndicate who was also a director of a travel agency, Gaze & Sons. The firm invested freely in seats and outings for events intended to celebrate the coronation of King Edward VII, and when the coronation was postponed due to the king’s illness – an event primarily known for a number of authorities which resulted in the law of frustration of contracts – it was badly damaged. To help it place its bills of exchange in the market, Burnand supplied, on behalf of his syndicate, Lloyd’s policies of insurance which guaranteed payment of the bills if they were not met in thirty days, and policies from an insurance company with which he was associated effectively to guarantee the payment of those guarantees. The resultant liability was over £100,000 – about £5.7 million in 2012 terms. The liabilities led to the failure of four of the names on the syndicate, including Burnand, and the destitution of the fifth, and to a number of court hearings in which Scrutton was instructed.132 He also appeared in a number of insurance cases arising from the seizure and destruction of property in the Boer War133 and the Russo-Japanese War,134 and a high-profile claim concerning the provisioning of the British Army in the Boer War in which he conducted a particularly effective cross-examination of the government’s principal witness, Colonel Morgan.135 Scrutton was also instructed in various enquiries concerned with the Port of London: for the 131

132

133

134

135

For the following see D.E.W. Gibb, Lloyd’s of London: A Study in Individualism (1957), pp. 183–93. Hambro v. Burnand, (1902–3) 8 Com. Cas. 252; (1903–4) 9 Com. Cas. 251; In re Burnand, [1904] 2 K.B. 68; British Marine Mutual v. Draffen and International Mutual Underwriters v. Draffen, The Times, 8 July 1903; Anglo-Californian Bank (Ltd) v. London and Provincial Marine and General Insurance Co. Ltd, (1904–5) 10 Com. Cas. 1. Village Main Reef Gold Mining v. Stearns, (1899–1900) 5 Com. Cas. 246, (1904–5) 10 Com. Cas. 89; Sleigh v. Tyser Insurance, (1899–1900) 5 Com. Cas. 271; Driefontein Consolidated Mines v. Janson Insurance (and other cases), (1899–1900) 5 Com. Cas. 296, (1900–1) 6 Com. Cas. 198, (1901–2) 7 Com. Cas. 268; Nigel Gold Mining v. Hoade Insurance, (1900–1) 6 Com. Cas. 268; Robinson Gold Mining v. Alliance Marine and General Insurance, (1903–4) 9 Com. Cas. 301; Curtis v. Head, The Times, 27 July 1901; Getz v. Heath, The Times, 18 February 1905. Andersen v. Marten Marine Insurance, (1906–7) 12 Com. Cas. 309, (1907–8) 13 Com. Cas. 205, at p. 321; Yangtze v. Indemnity Marine Mutual Insurance, (1907–8) 13 Com. Cas. 283. Imperial Cold Storage and Supply Co. Ltd v. King, The Times, 2, 3, 4, 9, 10, 11, 12 and 16 November 1909. Scrutton’s submissions were later relied upon in a Parliamentary debate about Colonel Morgan’s conduct. See also HC Deb., Vol. 26, 31 May 1911, cols. 1086–1100.

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Corporation and City of London when a Royal Commission was formed to enquire into the administration of the port,136 for the Corporation and the London Chamber of Commerce,137 and five years later for the General Shipowners’ Society in the lengthy and no doubt lucrative Parliamentary Committee sessions which eventually resulted in the Port of London Act 1908.138 From the first volume of the Commercial Cases to Hamilton’s appointment to the Bench, Scrutton and Hamilton appeared against each other 137 times, 109 times without the intervention of leaders, in contests which were perceived by onlookers in gladiatorial terms. There were also a small number of cases in which they were jointly instructed: a prospect which must have induced paralysis in their opponents.139 One observer noted that Scrutton had “won his spurs” in the Commercial Court, “being usually pitted against the late Lord Sumner and as both were skilled in fence and profound lawyers, it was an intellectual treat to witness their contests”. Another article referred to “the stirring combats in the Commercial Court” between the two: Both were great fighters; neither minced his words; but perhaps the future Viscount Sumner wielded the keener weapon. To listen to them even when construing so commonplace a document as a charterparty or a bill of lading was an intellectual treat. Each was obviously destined for the Bench.140

Mackinnon, who had the opportunity to observe them both from close quarters, wrote, Except in both being of outstanding ability, no two advocates could have been less alike. Hamilton scholarly, precise, cynical, with much the more attractive address. Scrutton, without elegance, but with great force and with an amazing knowledge of case law and having, as it was said, by heart his own book on charterparties and bills of lading. Though success had

136

137

138

139

140

Minutes of Evidence Taken before the Royal Commission on the Port of London, (1902) P.P. 43/34 Cd.1152. Report of the Select Committee Appointed to Join with a Committee of the House of Commons to Report on the Port of London Bill and to Report to the House, (1903) P.P. 8/14. Report of the Select Committee Appointed to Join with a Committee of the House of Commons to Report on the Port of London Bill and to Report to the House, (1908) P.P. 10/2. Hudson v. British and Foreign Marine Insurance, (1902–3) 8 Com. Cas. 6; Boston Fruit Company v. British and Foreign Marine Insurance, (1905–6) 11 Com. Cas. 196; The Leitrim, [1902] P. 256. (1934) 78 Solicitors’ Journal, 2 June 1934 and 25 August 1934, for the following.

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onwards and upwards at the bar come to Hamilton later than to Scrutton, who was some three years his senior in age, those most competent to judge regard the former as having the finer brain of the two, and in each step in their careers, he just managed to outstrip his rival.141

When writing Hamilton’s entry in the Dictionary of National Biography, Mackinnon wrote that while Scrutton “perhaps outdid him in industry and pertinacity”, Hamilton “had the finer brain, was a better scholar and much more gifted as a speaker”.142 No meaningful judgement can now be passed on their relative merits as advocates. The outcome of the cases in which they appeared against each other provides no real insight. One of their contemporaries was fond of saying that of every hundred cases ninety win themselves, three are won by advocacy and seven are lost by advocacy,143 a sentiment with which most barristers would express broad agreement even if inclined to make minor adjustments to the placing of the dividing lines. However, by way of information rather than elucidation, their head-to-head encounters were won by Scrutton in a ratio comfortably exceeding three to two, and the ratio is similar in all cases in which they appeared.

4.7

Scrutton the advocate

If advocacy is an art, as has been suggested, then it is undoubtedly an ephemeral one. In the manner of dramatic performances, no permanent record of the artistic product survives, and the advocate’s efforts are not even contemporaneously assessed in critical review. Judicial decisions provide little insight into the performance of the advocate or the difficulty or otherwise of his case: by the time the judge comes to commit pen to paper, the points which were arguable in prospect have become either clear or hopeless in retrospect, and when judgments offer praise to the manner in which submissions were advanced, this is almost invariably reserved for the losing party, by way of compensation for the rejection of his submissions and an assurance to his client that the outcome is not the barrister’s fault. There is the further difficulty that the efficacy of particular styles of advocacy varies, both over times and between different courts. It is impossible to imagine any advocate now completing his 141 142 143

The Times, 21 August 1934. Oxford Dictionary of National Biography, entry for Viscount Sumner. Kemp QC, quoted in Mathew, p. 272.

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submissions in a criminal case as Scrutton’s leader did in the Lambeth Poisoner case, by telling the jury, between you and the prisoner at the bar, between the bench and the prisoner, stands a figure and that figure is the genius of the law of England. It is the best protector an accused man can have in his hour of need. It demands that the guilt of the accused man shall be brought home to him as clear and as bright as the light of heaven streaming into this court now; and it is to the light of the protection of that figure that I leave my client . . .

and still less that it should provoke a round of applause in court.144 Even viewed from a contemporary perspective, we have Alfred Chaytor’s contrast between the “oratorical efforts” of “fashionable K.C.s” and “the rapier of a silk who knew his job and was doing it without a fuss”. Mackinnon depicts Scrutton as a master of the law, with such an encyclopedic knowledge of the authorities that he almost became case bound, suggesting that “when at the bar he had been hampered, if anything, by an immense knowledge of case law”.145 Scrutton’s mastery of case law was no doubt a formidable forensic weapon. In Morocco Bound Syndicate v. Harris Chamberlain it is reported that “Mr. Scrutton had challenged his opponent to produce any precedent, but in vain”.146 In Francis, Times & Co. v. Sea Insurance, when an opponent cited a particular authority to support his case, he was duly “Scruttonised” when the judge was told that the case “had been disapproved of by many textbook writers and had never been followed by any judge”.147 However, Scrutton as an advocate was clearly much more than an encyclopedia of case law. In one copyright case, which concerned the issue whether The Times had acquired copyright in a book of speeches by Lord Rosebery which their reporter had transcribed,148 Scrutton’s opponent informed the judge that “he did not think his learned friend Mr. Scrutton could find any authority to justify the argument which he understood was relied on – that there was no copyright in the report of a speech. He would have to argue on generalities”. Scrutton’s response was indeed an argument from first principles, but wholly compelling (if ultimately unavailing). He asked how far the proposition might be taken, observing that “the gentlemen of the press might probably take down verbatim the 144 145 146 148

The Times, 21 October 1892. Mackinnon, Oxford Dictionary of National Biography. 147 The Times, 23 February 1895. The Times, 30 June 1898. Walter v. Lane, The Times, 15 July 1899.

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whole judgment of his lordship. Did they claim a copyright in the whole of the judgment?” And “should we have an action by the proprietor of The Times against Lord Rosebery to prevent him publishing his own speeches?” A note he kept from “AL” – perhaps A.L. Smith – written in the course of one case, said, “I must send one word of congratulation on your speech. In its way, it is one of the best things I have heard.”149 His own advice to advocates was to concentrate first on getting the facts clear, after which the law would look after itself: “I heard Lord Russell once say to an amiable advocate who was throwing facts about in wild confusion, ‘Mr. So and So, can you give me no order? Alphabetical will do if you can give me no other.”150 It is noteworthy that when James Atkin wandered into court and saw Scrutton “waving his arms at a judge”, what struck him was that “it was obvious the speaker was complete master of facts”. A writer in the Solicitors’ Journal suggested his success rested on shewing on every occasion a mastery of cases, a clear grasp of principles, and a shrewd knowledge of affairs. He was not a brilliant advocate, but his thoroughness in handling facts, as well as his scholarly knowledge of shipping law, aided by a certain slightly irascible and slightly cynical turn for epigram of a caustic and mordant type, easily made him an indispensable man in every serious case.151

In addition, Scrutton clearly exercised judgement in the points he took. Lord Sankey said that “at the end of one of his arguments it was always felt that he had advanced all that could properly be said upon the matter and all that could rightly be urged on behalf of his client”.152 Scrutton’s writings – both judicial and extra-judicial – have an acerbic quality. On occasion this extended to his opinions for clients. One opinion, responding to an enquiry by a landowner as to whether third parties had common rights over one of his fields, began “it is quite impossible from the information before me to advise whether the persons grazing cattle on the land in question have any and what common rights”, and after recommending that the landowner fence off the land and see what happened, he concluded, “until the form of right claimed by

149 150

151 152

Undated note, Scrutton Papers. Scrutton, “The work of the commercial court” (1921) 1 C.L.J. 6, at p. 18. See also similar advice to Law Society students: “The reception” (1928) 2 Bell Yard J.L. Society School of Law 30, where he also advised “always to look at originals and not to be satisfied with copies”. Solicitors’ Journal & Weekly Reporter, 14 October 1916, at p. 774. The Times, 3 October 1934.

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the farmer is known, it is useless my speculating as to whether they have a valid claim”.153 Where records of his submissions survive, they suggest he was not without charm as an advocate. His submissions at the end of many weeks of evidence before the Royal Commission on the Port of London began,154 I am not sure who is entitled to the greatest sympathy – the Commission when the fifth Counsel rises to address them with a knowledge that seven Counsel more are waiting to follow him, or the Counsel who rises to address Commissioners who have listened to his lengthy and learned brethren for four hours already . . . I will endeavour to remember . . . that they are gentlemen connected with the business who have been carefully listening to evidence for 29 days, and must in the course of that 29 days have mastered somewhat the point they have to consider.

4.8

Time for a change?

Scrutton’s status as leading counsel brought with it a greater social visibility. Whether this occasioned him pleasure or was merely another chore to be borne patiently and laboriously must remain a matter of conjecture, but he appears to have been more sociable than Mackinnon’s Dictionary of National Biography entry might suggest. As one of the first set of King’s Counsel for over sixty years, Scrutton was invited to the first levee held by Edward VII.155 He is to be found at a number of formal dinners over the following years. He was one of a number of legal luminaries invited by the distinguished solicitor Sir William Crump to a dinner of the Upholders’ Company, where he was able to enjoy the company of Hamilton by night after facing him in court in the day.156 In July 1908, he was made a Bencher of the Middle Temple,157 and he can be seen at various Middle Temple dinners.158 Some of these dinners offered the opportunity to renew or affirm old acquaintance: for example, 153 154

155 156

157

158

“Re Aberdovey claim”, 29 May 1900, Gwynedd Archives, XD28/2524. Minutes of Evidence Taken before the Royal Commission on the Port of London, (1902) P.P. 43/34, at p. 592. The Times, 12 February 1902. The Times, 10 April 1908. They had appeared against each other that day in Baxter’s Leather v. Royal Mail Steam Packet. Register of Admissions to the Honourable Society of the Middle Temple from the 15th Century to the Year 1944, Vol. II, 1782–1909, at p. 606. For example, The Times, 28 July 1908, 20 November 1908, 23 June 1909 (Grand Day).

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that given by the Bar of England to the now Prime Minister Herbert Asquith159 and a dinner given by the Middle Temple to his first pupil master, Sir Kenelm Digby.160 He was frequently invited to dinners organised by solicitors.161 And so the years passed – in the heavy effort of court work, conferences and preparation; in evenings of writing books and of social commitments; in the delights and duties of family life; and in the summer holidays at Sheringham and occasionally further afield. Scrutton’s family were growing up. Janet had gone to Girton College, Cambridge, to study history, obtaining third-class honours in the class list for women in the History Tripos162 – women now had the right to read for and obtain degrees, for which Scrutton had advocated in vain at the Cambridge Union nearly thirty years before, but their results were reproduced in a separate class list. Had the Bar been open to her as a career, we may assume that Scrutton would have supported her. No women were admitted to the Bar until after the passage of the Sex Discrimination (Removal) Act in 1919, and two years later we find Scrutton expressing pride that he came from the Middle Temple which for some reason has been more specially and abundantly favoured by ladies than any of the others. I think threequarters of the ladies at present studying for the bar are at the Middle Temple. We wish them every success . . . The ladies must not expect special courtesy at the Bar; they will get, like all barristers, a fair field and no favour; and it will rest with themselves whether they get on or not.163

Instead, and one suspects unfortunately for both children, Janet did not pursue a career – Mary Midgley notes that after service as a volunteer nurse in the Great War, “she simply lived at home, and I think it is clear that this didn’t agree with her”,164 and the burden of following Scrutton fell on his eldest son Tom. Tom explained to his own daughter that “he as the eldest and brightest son had always been intended to follow his father at the bar, and been duly sent to read law at Cambridge”.165 These were formidable shoes to fill. He obtained second-class honours in law from 159 161

162 163 164

160 The Times, 11 July 1908. The Times, 28 April 1909. The Times, 9 May 1908 (Council of the Law Society), 22 January 1909 (inaugural dinner of the City Solicitors’ Company), 13 May 1909 (the Law Society). The Times, 18 June 1906. T.E. Scrutton, “The work of the commercial court” (1921) 1 C.L.J. 6, at p. 18. 165 Midgley, p. 29. Midgley, p. 50.

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King’s College, Cambridge166 – Arnold McNair topped the year. He then sat his Council of Legal Education examinations, passing them all and obtaining third-class honours in the various disciplines.167 He was admitted to the Middle Temple, and joined Scrutton’s chambers as a pupil and thereafter as a tenant.168 He even followed his father onto the golf course, one area where we can be sure he surpassed him.169 As will be seen, Scrutton’s ambition that his eldest son would follow him in his career was not to be realised, just as he had thwarted his own father’s similar ambition some thirty years before, but this is to anticipate events which did not occur for another four years. These were all matters apt to make a man review the present state of his life, and consider whether the time had come for a new challenge. In Scrutton’s case, that sense can only have been sharpened when J.A. Hamilton was appointed to the High Court Bench in February 1909,170 and in the course of Scrutton’s many appearances before the now Mr Justice Hamilton over the following six months.171 Before the year was out, Scrutton had obtained a definite promise of his own elevation. But before this appointment is considered, and what in the immediate term was its unsuccessful aftermath, it is first necessary to catch up with another facet of Scrutton’s life. 166 167

168 169

170 171

The Times, 22 June 1908. Constitutional Law (The Times, 21 April 1909); Criminal Law and Procedure (The Times, 2 November 1909); Real Property and Conveyancing (The Times, 21 April 1909). Midgley, p. 50. See The Times, 19 July 1909 (Eltham) and 26 July 1909 (Bexhill) for T.B. Scrutton’s success on the golf course. The Times, 4 February 1909. There are nine such appearances in (1909–10) 15 Com. Cas.

5 Copyright and the author

On his death in 1871, Edmund Yorke, a graduate of St Catherine’s College, Cambridge, left a bequest to the university to establish a prize to be awarded twice yearly for an essay “upon the consistency or inconsistency of the law of primogeniture with the dictates of nature as well as with the spirit and precepts of the Christian religion”.1 Long before the first prize was awarded, the bequest was to bring material comfort to the legal profession. It was said that the terms of the bequest were “utterly absurd and ridiculous”, not least because “the subject would become speedily exhausted”, and on counsel’s advice proceedings were brought in the Chancery Division to sanction a new scheme.2 The result was a prize to be awarded annually to an essay by a graduate of the University of Cambridge of not more than seven years’ standing from admission to their first degree upon “the law of property, its principles and history in various ages and countries . . . the successful essay to be printed and published at the expense of the successful candidate”.3 For the year 1882, the examiners (John Rigby QC and F. Vaughan Hawkins) adopted a modern twist to the concept of law of property, the title being “the law of property in literary compositions published and unpublished; the principles that ought to regulate it; and how far such principles have been acted upon in different countries”.4 Candidates were required to send their essay to the vice-chancellor by post, bearing a motto, and accompanied by a sealed paper bearing the same motto and enclosing the name and address of the candidate. Scrutton’s entry – identified by the motto O imatores, servum pecus5 – won the £90 prize, and effected his transition from writer to author the following year. 1 2

3 5

The Times, 12 November 1873. The Times, 18 November 1873. For proceedings see Farrer v. St Catherine’s College, The Times, 22 April 1873. 4 The Times, 13 May 1875, 1 December 1876. The Times, 20 December 1882. “Oh imitators, a servile herd”. Horace, Epistles, I, xix.

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Thereafter Scrutton pursued the Yorke Prize with same relentless energy with which he had previously pursued university degrees. He won the prize again the following year when Arthur Cohen QC and Robert Romer QC prescribed the topic of “The Influences of the Roman Law on the Law of England”, two years later when the same examiners chose “The History and Policy of the Laws restraining the Alienation and Settlement of Land in England”6 and in 1887 when C.S. Kenny and Robert Romer QC selected “The History and Policy of the Laws relating to Commons and Enclosures in the United Kingdom”.7 Had he not run up against the seven-year restriction, there might be few areas of the law of property (however broadly interpreted) which lacked a Scrutton exposition. In addition to these prize essays, Scrutton produced a number of practitioner works, most famously his work on charterparties, but also other books which have not enjoyed the same longevity. His first work not only marked the beginning of his forty years as an author, but also helped make Scrutton an influential and well-connected defender of the rights of artists, authors and composers. This chapter considers this alternative career.

5.1 “Copyright” The Vanity Fair cartoon for Scrutton, penned by “Ape Junior”, captioned him not as “Charterparty” but as “Copyright”.8 His owed his eminence to the publication of a revised and enlarged version of his first prizewinning essay as The Laws of Copyright in 1883, a book he dedicated to his former pupil master Sir Archibald Smith.9 The essay began in bravura fashion, with a sentence which mixed Scrutton’s literary, legal and philosophical learning in compact form: Attempts to reduce to principle the laws dealing with Copyright, or the similar laws of Patents and Trade-marks, at once lead the student into what has been called “the realm of legal metaphysics”, a realm as fruitful in controversy and as fruitless in proportionate results as that other realm

6 8 9

7 The Times, 22 March 1886. The Times, 18 May 1887. Vanity Fair, 28 June 1911. T.E. Scrutton, The Laws of Copyright, 1st edn (1883), hereafter “Copyright”. Users of the 21st edition of Scrutton on Charterparties may be interested to note that both the general and cases indices were indexed by reference to paragraphs rather than pages.

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copyright and the author where “ignorant armies clash by night” over the debateable fields of Phaenomena and Noumena, Destiny and Freewill.10

The first section of what followed set out a philosophical justification for the recognition, and the limits of recognition, of copyright protection, the purpose of which was “to work out an ideal law”.11 There followed an account of the history of copyright, and then the English law of copyright in literary, musical and artistic composition was analysed, with comparative illustrations from the law of the United States and of the jurisprudence of continental Europe. The legacy of Scrutton’s education at the Benthamite UCL and under Henry Sidgwick at Trinity was evident in the text: the analysis, the reader was told, was “to be conducted on a method as purely scientific as possible” and that “the Utilitarian formula is almost universally accepted not only as the test of legislation but also as affording a scientific foundation for the art of legislation”. Lest any doubt remain, he confidently continued, We may further dismiss from consideration the much-vexed question of “Absolute Rights” by taking for granted the position of the Austinian jurisprudence that “rights”, in the strict sense of the word, result from the command of the Sovereign, and have no existence prior to such command . . . We naturally reject the opposite theory as to absolute rights, founded on the Law of Nature and on Justice, and in no way determined by considerations of utility.12

What followed was a demonstration, in this case in the extreme form, of the virtue which was to illuminate Scrutton’s subsequent writings – the ability to isolate a set of principles and then use those principles to explain the case law, identify errors in it or answer issues of controversy. For all the many Benthamite references, the promise of scientific method, and the rejection of any concept of a priori rights, as Isabella Alexander has noted in her discussion of nineteenth-century copyright law,13 10

11 12

13

Copyright (1883), p. 1. Invoking Matthew Arnold was particularly appropriate, as Arnold had campaigned vigorously for copyright reform: “Copyright” (1880) 49 Fortnightly Review, 319. Scrutton to John Murray, undated, 1883, John Murray Collection, NLS MS/41075. Scrutton was a committed legal positivist: see e.g. his criticism of a work of jurisprudence as espousing “that view of jurisprudence which blends it with morality and which is in vogue on the Continent”. Scrutton to John Murray, 9 April 1885, John Murray Collection, NLS/MS41075. Isabella Alexander, Copyright Law and the Public Interest in the Nineteenth Century (2010), p. 5 (“Alexander”).

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Its philosophical foundation was an assertion of the private property rights of authors and unease regarding the principles being applied to the law of copyright which Scrutton characterised as the same as Socialism or Communism in relation to real property.

As Scrutton’s first encounter with the law of copyright came as an author researching and writing an essay, it is understandable that he approached the subject from the perspective of the creator rather than the consumer of literature, and that his analysis was coloured by what he termed “the author’s quasi-parental fondness for his literary child”.14 Scrutton approached the publisher John Murray with his manuscript, suggesting (somewhat optimistically) that the work might appeal “to the literary rather than the strictly legal public”, and received a favourable response.15 The book met with a positive critical reaction, Scrutton having made a number of suggestions as to the distribution of review copies and as to where advertisements should be placed.16 One reviewer was “glad to see that he is thoroughly sound on the subject and not tainted by the noxious heresies which exercise so injurious an influence in certain regions of authority”.17 Another noted that “Mr. Scrutton says it is a common place that no good thing can come out of a prize essay and cites some exception to prove the rule. His own work may in our opinion be cited as another exception”,18 although the same writer noted, “We fail to find anything original or novel in the treatment of the law by Mr. Scrutton, but his arrangement is good. In this respect, he dominates the cases and makes them subservient to his statement of the law.” The second edition, in 1890, dropped the theoretical chapters – Scrutton explained that “the author in compiling it has followed the example of the celebrated piratical abridger of ‘Rasselas’ who ‘left out all the moral reflections’” – and was more obviously a legal textbook.19 The applicable principles were not deduced and identified in a priori terms independently of the analysis of the relevant law and statutes, but derived from and illustrated by the legal materials. It was now recognised as “one of the best as it is one of the latest works on the subject”.20 One reviewer noted, “Mr Scrutton is an 14

15 16

17 19 20

Copyright (1883), p. 16. Scrutton’s familial affiliation was with the publishers: see Chapter 1 for the admission of various Scruttons to the Stationers’ Company. See letters in John Murray Collection, NLS/MS41075. E.g. Scrutton to John Murray, 1 December 1883 and 13 May 1884, John Murray Collection, NLS/MS41075. 18 Pall Mall Gazette, 3 March 1884. (1883–4) 76 Law Times, p. 116. T.E. Scrutton, The Law of Copyright, 2nd edn (1890), p. v. Birmingham Daily Post, 19 January 1891.

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excellent interpreter of statutes and judicial decisions . . . We agree with him and his critics who thought the first edition too theoretical but it nevertheless has its value”,21 although not everything was to his taste: If we might offer a word of advice, it is that legal authors should be grave – humour or literary amusements, even in a preface, are not understood by the legal multitude. Many a good man has spoiled himself as a lawyer by indulgence in this sort of thing.

A third edition followed in 1896. The book’s merits were also frequently recognised in court: “I agree with the interpretation [of] Mr. Scrutton in his excellent work”, A.L. Smith LJ observed in one case,22 while in another case in which Scrutton appeared as an advocate the Court of Appeal relied upon his book, “where the question is compendiously treated”.23 In Moffatt Paige Ltd v. Gill & Sons24 “it was agreed by counsel on either side that the liberty of an author dealing with a subject already treated by another is properly and completely stated by Mr Scrutton in his book on the law of copyright”. In addition to his book, Scrutton lectured at the Council of Legal Education on “the Laws of Literary and Artistic Copyright”,25 at which he taught his students almost all he knew on the subject.26 He also produced the occasional article, for example the following contribution on impending copyright reform in the United States of characteristic tone and sympathies: At long last after much hope deferred, the British author appears to be on the verge of his Promised Land, and be approaching the day when the vast body of readers in the United States of America who have hitherto paid him the compliment of reading his works shall pay him for the privilege not in compliments but in cash.27

5.2 Copyright advocate On those occasions when a barrister does manage to produce a good book, it does not always bring a good practice in its wake. However, the 21 23 24 25 26

27

22 (1891) 190 Law Times, p. 88. Moul v. Greenings, [1891] 2 Q.B. 443. Boucas v. Cooke, [1903] 2 K.B. 227. The Times, 2 April 1901; (1901) 84 L.T. 452; (1902) 86 L.T. 465. The Times, 23 January, 19 and 20 February 1902. The New Irish Jurist and Irish Government Review, 7 February 1902, reported that in a recent lecture, he had said that there was still a way in which a novel might be pirated by a playwright without infringing the law, but “that in the interests of public morality he did not propose to disclose what the particular method was”. T.E. Scrutton, “English authors and American copyright” (1888) L.Q.R. 345.

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publication of Scrutton’s first Yorke Prize essay came at an opportune time. The unsatisfactory state of the English law of copyright, together with the new opportunities for exploiting artistic endeavour offered by technological advances and changes in commercial practice, ensured a steady stream of work. Scrutton’s copyright clients were a more colourful collection that the steady stream of shipowners, insurers and merchants who were later to beat a path to 3 Temple Gardens. Scrutton’s practice embraced all artistic forms, and explored the fluid frontiers of copyright law. He appeared in a succession of cases for the German art publishing house Hanfstaengl,28 in which unsuccessful attempts were made to stretch existing notions of infringement of copyright in paintings: in Hanfstaengl v. H.R. Baines, an attempt to establish infringement when copyrighted paintings were reproduced by way of tableaux vivants, a group of actors posing in front of canvass backgrounds; and in Hanfstaengl v. Empire Palace, when newspapers published pictures of those same tableaux vivants. Works of lesser artistic quality also generated disputes. In Mitchell & Co. v. Dewar & Co.29 two whisky companies litigated over advertising cards, leading Hawkins J to comment “they have blended, I suppose” when a settlement was announced, and in Davis v. Benjamin30 the dispute arose over sketches of furniture used in a catalogue. The new popular medium of photography also generated a number of instructions.31 Scrutton’s practice in musical copyright was equally diverse. In Fuller v. Blackpool Winter Gardens and Pavilion32 he appeared against Rufus Isaacs in a case in which the claimant – a singer known professionally as Katie Lawrence – sued for infringement of what she alleged was her sole right to perform the song “Daisy Bell”. Pitts, Pitts v. George & Co.33 involved the copyright in Joachim Raff’s “La Fileuse”, and Re Jude’s Musical Compositions34 concerned the works of composer and evangelist preacher W.H. Jude. Scrutton was involved in attempts to extend musical copyright to new media. Copyright in sheet music was protected by the Musical Copyright Act 1842. The Music Publishers Association supported an action by the publisher William Boosey in 28

29 31

32

Hanfstaengl Art Publishing Company v. Holloway, [1893] 2 Q.B. 1; Hanfstaengl v. H.R. Baines, [1894] 2 Ch. 1; Hanfstaengl v. Empire Palace, [1894] 3. Ch. 109, [1895] A.C. 20. 30 The Times, 28 March 1896. [1906] 2 Ch. 491. Wooderson v. Raphael Tuck, The Times, 12 November 1887; Hussey v. Harmsworth, The Times, 29 March 1900 (copyright of photographs in Golf Illustrated); Boucas v. Cooke, [1903] 2 K.B. 227. 33 34 [1895] 2 Q.B. 429. [1896] 2 Ch. 866. [1906] 2 Ch. 595; [1907] 1 Ch. 651.

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which it was contended that the perforated rolls of paper used by Aeolians to produce music mechanically fell within the protection afforded by that Act.35 Scrutton was retained to argue it, and in the absence of supporting authority, had to fall back on first principles, contending that the purpose of the 1842 Act was to “prevent one man from appropriating another’s labour without paying for it”. Stirling J rejected the contention, holding that the perforated sheets were part of the machine rather than sheet music, and an attempt to reverse that decision in the Court of Appeal failed.36 In the next edition of The Law of Copyright Scrutton complained, Another gap in copyright law was discovered when it was found that owners of mechanical pianos might make profit out of the sale of rolls, from which copyright musical compositions could be reproduced without paying a penny to the authors or owners of the copyright in the music.37

A decision was taken to test the issue again five years later. A hawker of perforated rolls was summoned before Bow Street Police Court for selling a production of the song “Bandolero”, the intention being to ascertain whether the perforated roll constituted a pirated copy of a musical work for the purposes of the Musical (Summary Proceedings) Copyright Act 1902. It was arranged for the roll to be supplied to a hawker outside the court, who was immediately apprehended by the police, and a summons issued to determine the issue by the magistrate, Mr Fenwick, in what were to be “proceedings of a purely friendly character”. On this occasion Scrutton was instructed for the defence, his first contention being that the action was an abuse of process.38 However, the matter was heard by the chief magistrate, Sir Albert de Rutzen, who dismissed the summons, holding that he was bound by the decision in the Boosey case. He said that he was prepared to state a case for the King’s Bench Division and “would not be at all sorry if it turns out that my decision is wrong”.39 However, the case stated upheld Scrutton’s argument.40 Whatever professional satisfaction he may have derived from his success, Scrutton was more frequently to be found arguing for the extension of existing copyrights to embrace new forms of reproduction. In Newmark v. National Phonograph Co.41 he contended unsuccessfully that a phonographic

35 37 38 40

36 Alexander, pp. 228–9. Boosey v. Whight, [1899] 1 Ch. 836, [1900] 1 Ch. 122. T.E. Scrutton, The Law of Copyright, 4th edn (1903), p. vi. 39 The Times, 15 June 1908. The Times, 16 and 30 June 1908. 41 Mabe v. Connor, [1909] 1 K.B. 515. (1907) 23 T.L.R. 439.

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recording infringed the copyright in sheet music under the Copyright Act 1842, but Sutton J followed Boosey and held that the Act did not apply to sound produced by mechanical reproduction. In Kano v. Pathé Frères42 he persuaded Kekwich J that the filming of a pantomime sketch involved a “reproduction”, but failed in the attempt to fix liability for any infringement on the sellers of cinematographic equipment, just as a similar attempt to fix liability on the sellers of home recording equipment failed eighty years later.43 The copyright difficulties faced by the producers of dramatic plays also engaged Scrutton’s attention. In Lauri v. Renad44 he represented a Parisian pantomime troupe embroiled in a dispute over a play entitled The Swiss Express. He also advised Alfred, Lord Tennyson on copyright issues relating to The Foresters, a musical play based upon the legend of Robin Hood with a score by Sir Arthur Sullivan. Alfred, Lord Tennyson’s concern was that the debut of the play in New York would benefit from copyright protection in the Unites States, but he would be exposed to the risk of unauthorised reproduction within the British Empire until such time as the work had been “published” there (and thereby benefited from statutory copyright protection in England). He sought advice from Scrutton, who advised that the play should be produced in Britain on the same day as it commenced its New York run.45 The result was a “purely formal performance” of the play in the Lyceum in London on the same day as The Foresters began a successful run in New York, 17 March 1892, the play’s London run not beginning until 3 October 1893.46 Scrutton was also involved with works of rather lesser literary merit: for example, an allegation by the author of Company Precedents that his copyright had been infringed by Debentures and Debenture Stock,47 or a case involving articles produced for an encyclopedia of sport which went to the House of Lords.48 One controversial issue of the day was whether facts could be impressed with copyright by those who had expended time, money and 42 43 44 45

46 47 48

(1899) 99 L.T. 114; (1900) 100 L.T. 260. C.B.S. Songs Ltd v. Amstrad Consumer Electronics Plc, [1988] A.C. 1013. [1892] 3 Ch. 402. Scrutton evidence to the Select Committee of the House of Lords: Report from the Select Committee of the House of Lords on the Copyright HL Bill and the Copyright (Amendment) HL Bill (1899) 362, 5 May 1899. Henry van Dyke, Studies in Tennyson (1920), p. 258. Palmer v. Effingham Wilson, The Times, 5 March 1898. Lawrence & Bullen Ltd v. Aflalo, [1902] 1 Ch. 264; [1903] 1 Ch. 318; [1904] A.C. 17.

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effort in assembling and organising them. Scrutton tackled this issue in cases involving professional or similar directories,49 and also those involving the commercial sale of information. In Exchange Telegraph v. Gregory,50 Scrutton successfully obtained an injunction to protect the claimant who had exclusive rights of transmitting the prices of stocks and shares on the London Stock Exchange, relying for this purpose on rights said to arise at common law. Scrutton obtained the injunction on the back of common law copyright. He gave forthright and characteristically clear advice to the news agency Reuters on this issue: In my opinion any person who goes to the trouble and expense of securing early and accurate information or news and puts it into written or printed form is entitled to protect it as copyright . . . This right does not, of course, prevent other people procuring the same news by their own exertions; it does prevent their merely getting it from Reuter’s Telegrams, even though they cover their copying by the use of synonyms.51

This proved something of a sticking point when Scrutton gave evidence before the House of Lords Select Committee on Copyright, who were inclined to question his assertion that copyright could exist in the statement “War ended, Santiago”.52 However, Scrutton distinguished between someone who expended labour and effort in obtaining information and someone who merely recorded the literary labours of another and then sought copyright in the record. In Scrutton’s most celebrated copyright case, Walter v. Lane,53 The Times sought an injunction to restrain the publication of a book of speeches by the Liberal politician Lord Rosebery, on the ground that the book had been prepared with the benefit of verbatim reports of some of those speeches taken down by The Times reporter (although the proof had been corrected by Lord Rosebery). Scrutton’s contention was that there could only be copyright in original matter, and all the reporters were doing was themselves producing copies of someone else’s work. He failed before North J, but succeeded in the Court of Appeal on the ground that the reporters could not be said to be “author” of the words they had 49

50 52

53

Kelly’s Directory v. Gavin and Lloyd’s, [1901] Ch. 374, [1902] 1 Ch. 631; James Nisbet v. The Golf Agency, The Times, 15 May 1907. 51 [1896] 1 Q.B. 147. Opinion of 27 December 1895, Reuters Archives, 1/867515. Scrutton evidence to the Select Committee of the House of Lords: Report from the Select Committee of the House of Lords on the Copyright HL Bill and the Copyright (Amendment) HL Bill (1898) 393, 14 July 1898. The Times, 15 July 1899; [1899] 2 Ch. 749; [1900] A.C. 539.

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transcribed. However, the decision was reversed in the House of Lords. The issue of principle generated extensive debate in the letters column of the paper and beyond.54 The Times was exultant in the editorial which followed its eventual success,55 but Scrutton had very different views: Probably no case of recent years has given rise to more animated differences of opinion, both among lawyers and laymen not ordinarily interested in legal decisions. The House of Lords has spoken and the law is established. But for its decision it would seem startling that a person should be the author of work, to which he has contributed neither the words nor their arrangement nor the ideas contained in them, when his only relation to that work is that he has correctly copied from dictation the language of the speaker who composed the thoughts in words. The so-called author shares his authorship with the mechanical phonograph but under the protection of the House of Lords acquires a property in his copy from his dictation.56

5.3

Copyright activist

When Scrutton approached John Murray with his copyright manuscript in 1883, Murray sent him a copy of the Copyright Bill which was then being considered by a committee of which Murray was a member.57 Scrutton offered “some suggestions and criticisms” on the bill, which he observed did not appear to be the work of a Parliamentary draftsman. It is not clear if the offer was taken up, but Scrutton’s interest in the statutory reform of copyright law was to find other outlets. In the preface to the third edition of his book, Scrutton noted, Hardly a copyright case comes into Court, hardly a copyright question comes before counsel for opinion, which does not emphasise the necessity for a thorough revision and codification of the numerous and ill-drafted Acts which constitute the Copyright Law of England. The Copyright Commission urgently recommended this in 1878, but we seem after eighteen years no nearer the desired haven.58

He was not alone. A campaign in relation to literary copyright was undertaken by the Society of Authors, which was founded on 30 June 54

55 57 58

The Times, 15, 17, 21, 22, 24, 26 and 31 August 1899; 13 and 22 November 1899; 10, 11, 12 and 15 September 1900. 56 The Times, 7 August 1900. Copyright (1903), p. vi. Scrutton to John Murray, 9 April 1883, John Murray Collection, NLS/MS41075. T.E. Scrutton, The Law of Copyright, 3rd edn (1896), p. vii. The commission was the Royal Commission on Laws and Regulations relating to Home, Colonial and Foreign Copyright C (2nd series) 2036, 1878.

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1884 by Walter Besant, a popular novelist, and enjoyed support from Alfred, Lord Tennyson, H. Rider Haggard and R.D. Blackmore.59 One of its goals was “to promote the recognition of the fact hitherto most imperfectly recognised that literary property is as real a thing as property in every other kind of business; that it should be safeguarded in the same manner and regarded with the same jealousy”.60 Scrutton attended a general meeting of the society in April 1885,61 at which the committee undertook “to continue to agitate and if possible settle the copyright question” and “when the copyright question has been settled, to promote a Bill for the registration of titles”, and a sub-committee was formed to pursue these goals. However, if Scrutton hoped to participate professionally in these activities, these hopes were not realised. The society’s solicitor was Basil Field of Field Roscoe & Co., its chosen counsel instructed to draft its proposed bill and represent its interests was Mr E.M. Underdown.62 It was not only authors who were interested in copyright reform. At a meeting on 23 December 1894, a group of artists who lived in and around St John’s Wood decided to form themselves into a club called the St John’s Wood Art Club,63 an event regarded by many “as the culmination of St. John’s Wood as a creative quarter”. The club soon acquired that essential accompaniment of all creative activity – a billiards table in a room above a pub – before moving to the Eyre Arms Hotel, “where they had a room on the ground floor to themselves and the use of a billiard-room with two tables from five to eight p.m.” The club held various “Discussion evenings”, and one topic which featured prominently was amendment of the Copyright Acts. A leading figure in this respect was the artist Lawrence Alma-Tadema.64 Alma-Tadema was one of the most highly paid artists of the era: his A Reading from Homer sold for $30,000 to an American buyer in 1903, and the copyright to his The 59 62

63

64

60 61 Alexander, p. 150. The Author, 15 May 1890. The Times, 28 April 1885. On the Society of Authors and the Underdown bill see Alexander, p. 238; The Author, 1 December 1893, at p. 256; G.H. Thring, “Recent amendments on copyright legislation” (1898) 63 Fortnightly Review, 461. The society was later represented by the barrister E.J. MacGillivray, who wrote A Treatise upon the law of Copyright (1902), which he dedicated to Scrutton “in gratitude of much instruction and kindness”. For the following see Alan Montgomery Eyre, Saint John’s Wood: Its History, Its Houses, Its Haunts and Its Celebrities (1913), pp. 269 to 274; Mireille Galinou, Cottages and Villas: the Birth of the Garden Suburb (2010), pp. 324–5; Robert Verhoogt, Art in Reproduction: Nineteenth-Century Prints after Lawrence Alma-Tadema, Jozef Israëls and Ary Schefer (2007), Chapter 7 (“Verhoogt”); Caroline Dakers, “Clubs, cliques and collaborations: artistic friendships in Victorian London” (2003). On Alma-Tadema see Russell Ash, Sir Lawrence Alma-Tadema (1989).

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Baths of Caracalla was sold for “a staggering £10,000”. He was the son of a notary public, originally destined for a career at the law, and was aware of the legal and commercial implications of the reproduction of the work of artists from a relatively early stage. Under Alma-Tadema’s initiative, the club formed an Artistic Copyright Committee on 24 February 1896. Alma-Tadema was the chairman, the other members were H.A. Voysey (the club’s solicitor and brother of the architect and designer C.F.A. Voysey), the watercolourist Edwin Bale and a number of other painters, designers and engravers.65 The Artistic Committee’s goal was the reform of English copyright law in a manner favourable to the visual artist. They laboured for a period of over two years: in 1897 Alma-Tadema was writing to a friend, “I left at 7 to reach home for a match of food to be at 8.30 at the Commission meeting of the Copyright law which lasted till 12 midnight”.66 On 14 April 1898, AlmaTadema told the club’s committee that the Copyright Committee had been making good progress and he hoped before long to be able to call an extraordinary general meeting at which the Copyright Committee would be able to state fully what they had been able to do.67

At that meeting, Alma-Tadema presented “an epitome of their work of the difficulties they had had to contend with during the last two years”. The committee proposed to send a memorandum to the artistic bodies in England and to produce a draft bill for Parliamentary consideration. This was intended to offer an alternative approach to copyright reform to Lord Herschell’s bill, which was felt to be unduly tailored to the demands of literary copyright, with the difficulties of artistic copyright “practically shirked”. The meeting was asked for, and gave, its support to the committee’s taking such measures as it thought necessary “even to the extent of employing counsel to look after their interests” before the House of Lords select committee appointed to consider the Herschell bill. The counsel retained was Scrutton, who drafted what became the Copyright (Artistic) Bill.68 By February 1899, the Artistic Committee “had practically finished their labours” and through Scrutton had 65

66 68

See Edwin Bale, “The law of artistic copyright: an exposition” (1899) The Magazine of Art 262. 67 Verhoogt, p. 435. Westminster City Archives, M447/1. Copyright (Artistic) H.L. Bill (1899) 362. See also St John’s Wood Art Club committee minutes of 11 April 1900.

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produced a bill which Lord Monkswell had agreed to put before the House of Lords.69 There was extensive liaison between Scrutton and Lord Monkswell to assist the bill’s passage, organised through Edward Poynter of the Art Club.70 Copies were sent to every artistic body in the country, and the Royal Academy agreed to support it before the select committee. However, “certain expenses connected with the Bill had been unavoidable, for instance it had been found necessary to employ the service of eminent counsel” at a cost of £250,71 which had been guaranteed by the members of the committee, and which was to be raised by subscriptions from the artistic bodies whose support for the bill had been obtained. Between 1898 and 1900 select committees of the House of Lords considered a number of competing bills intended to amend the laws of copyright: a bill produced by the Society of Authors, another by the Copyright Association, Scrutton’s bill and bills on artistic and literary copyright drafted by Lord Thring.72 Scrutton made four appearances before the select committees, a reflection of the prominent position he had now achieved as an expert on the law of copyright. Scrutton’s publisher, John Murray, also gave evidence, as did Mark Twain and Anthony Hope Hawkins (author of The Prisoner of Zenda). Scrutton had been instructed by the Board of Trade to provide his comments on the proposed amendments to the law of literary copyright (including the bill introduced by Lord Herschell to which the St John’s Wood Art Club was strongly opposed). His first two appearances were for the purpose of answering questions on the reports he had produced for the Board of Trade.73 Those views reflected Scrutton’s strong and consistent support for the notion of common law copyright. However, he took the opportunity to highlight some deficiencies in the Herschell bill from the perspective of the artistic community. The suggestion in that bill that a requirement of publication be introduced into the law of

69 70 72

73

Minutes of general meeting of 8 February 1898, Westminster City Archives, M447/1. 71 The correspondence appears in the Scrutton Papers. £15,000 in 2012 currency. See Alexander, pp. 239–41; Report from the Select Committee of the House of Lords on the Copyright HL Bill and the Copyright (Amendment) HL Bill (1898) 393; Report from the Select Committee of the House of Lords on the Copyright HL Bill and the Copyright (Artistic) Bill (1899) 362; Select Committee of the House of Lords on the Copyright Bill and Copyright (Artistic) HL Bill (1900) 377. Appendix F to the Report from the Select Committee of the House of Lords on the Copyright HL Bill and the Copyright (Amendment) HL Bill (1898) 393. Scrutton also produced a follow-up report which can be found at NA/BT/209/449.

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artistic copyright was condemned as something which “would be a very good thing for the lawyers” but otherwise had nothing to recommend it. He observed of a proposal to remove copyright protection from paintings by British artists produced or first exhibited outside Britain and the colonies, “I don’t know why they should be deprived of their present rights”. When discussing whether copyright should be deemed to pass in the absence of an express term when a painting was sold, and whether the artist should be free to paint a second version of a painting sold, he explained that “some artists take up the position that in selling a picture they are in the same position as if they had sold your Lordship . . . a pair of trousers or a patented article”. He also appeared before the committees as the drafter of one of the bills before them and on behalf of the sponsors of that bill. He noted, “I do not suppose the Board of Trade will send me the Art Bill to report upon because I drafted it. It would put me in a difficult position because I have followed certain instructions from my employers”. He may have felt he was in a difficult position in any event. When appearing to present the views of the Royal Academy, he was asked whether he supported the committee’s view that the sculptor who sold a work should not be permitted to reproduce it, and replied, “I personally do not see any objection to it but of course I am here to speak the views of the Academy and the sculptors of the Academy do not”. He responded to another question, “are you asking me my private opinion or are you asking the views of the Academy?”. After making those points the Royal Academy wished him to make, Scrutton offered some general observations of his own. Lord Balfour, asking, “you are here as an expert in your purely private capacity?” received the response “purely private now”. For his final appearance in July 1900, he told the committee he was “speaking as the mouthpiece of the Royal Academy”. No Copyright Act was to be forthcoming for another ten years. However, the members of the Artistic Copyright Committee were sufficiently impressed with Scrutton’s labours on their behalf to give him a cabinet of works by its members. The cabinet was a green leather-bound wooden box made by C.F.A. Voysey, with eight glazed marble trays. These contained five watercolours, one pencil drawing, an enamel plaque and a steel copyright plaque, bearing the inscription “To T.E. Scrutton from the copyright committee of the St. John’s Wood Art Club”. It remained in the Scrutton family until Janet Scrutton sold it to the Forbes Collection in 1971.

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5.4 Repelling pirates As Isabel Alexander has noted, the problems of musical piracy are not new, nor are the piratical metaphors used to describe them.74 In particular, pirating of sheet music in the late nineteenth century was endemic, exploiting the demand for popular song generated by the success of the Victorian music halls. The music publishers brought a succession of legal challenges in an attempt to impede the sale of unlawful copies of their products. One publisher who was particularly active was David Day of Francis, Day & Co., and in March 1902 he formed the Musical Copyright Association.75 Day also sponsored the drafting of a bill to address the position, which, in much diluted form, became the Musical Copyright (Summary Proceedings) Act 1902. However, attempts to use that Act to ensure the destruction of pirate copies seized by Day and private detectives employed on his behalf were dealt a blow when a Marylebone police magistrate refused to make an order unless a summons was served on the owner. Day convened a meeting of the Musical Copyright Association which resolved to challenge this decision in the High Court with “Mr. Scrutton and Mr. Hermann Cohen appearing on behalf of the Association”.76 The test case – Ex parte Francis – was unsuccessful: the Divisional Court rejected Scrutton’s contention that oral notice sufficed under the Act.77 Scrutton and Cohen were instructed in another challenge in respect of the refusal by the Clerkenwell magistrates to issue an order authorising a constable to enter premises and seize property.78 Lord Alverstone CJ had obviously become aware of criticism in the publishing press of the earlier decision, noting that “it had . . . erroneously been stated that the decision in that case had taken away rights which the Act was intended to give”. In what may have been a dig at Scrutton (if so, it was misplaced: the draftsman of the 1902 Act was another copyright barrister, Edward Cutler), he stated, “it was not right to complain of decisions when the fault lay in the Act having been drawn up without reference to the

74

75

76 78

Save where otherwise indicated see Isabel Alexander, “Criminalising copyright: a story of publishers, pirates and pieces of eight” (2007) 66 No. 3 C.L.J. 625, for the following account. On musical piracy and the steps taken to prevent it see William Boosey, Fifty Years of Music (1931), Chapter 13 (“Boosey”); John Abbott, The Story of Francis, Day & Hunter (1952), Chapter 4. 77 The Times, 20 October 1902. Ex parte Francis, [1903] 1 K.B. 275. Francis v. Fisher, The Times, 21 May 1903; (1903) 67 J.P. 301.

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principle of the criminal law” and that “if a new bill was introduced for the purpose of protecting the owners of copyright in music, the bill might be drawn by someone who had a knowledge at least of the elements of criminal law”. After some initial friction between the bodies, the Musical Copyright Association and the Music Publishers Association formed a new body to represent the publishers of sheet music, the Musical Defence League. The league persuaded Prime Minister Arthur Balfour to form a Departmental Committee on musical piracy, its members including Scrutton, representing the interests of the Board of Trade (although he was also counsel to the Musical Defence League as well as having conducted test cases on behalf of its predecessors).79 The witnesses included two of Scrutton’s clients: Arthur Boosey and David Day. His questioning of them left little room for doubt as to where his sympathies lay: Boosey, for example, was asked, “Do you know at present of any other form of property which is being attacked in this persistent and successful way in England”, and, “Am I putting it too strongly if I suggest to you that this is a state of affairs which ought not to exist in any civilised country which attaches any value to property?” By contrast, James Frederick Willetts – known as “the King of the Pirates”, who appeared before the committee to defend the production of pirate copies as a legitimate response to the disproportionately high price of sheet music – was subjected to an aggressive cross-examination by Scrutton. When Willetts refused to explain his means of distribution of private copies, Scrutton responded, “You are one of the gentlemen who want to reform the law? Why are you so modest in your part of it? If your virtues were recognised there would be ultimately a statue erected to you?” A refusal to identify those behind Willetts’s latest venture, the People’s Publishing Company, led Scrutton to observe, “are they like you, doing good by stealth and blushing to find fame and objecting to be known?” The cross-examination finished with Scrutton putting Willetts’s prior conviction and prison sentence for fraud to him. The report, published in February 1904, was written by Scrutton and expressed the view that “the existing law has failed to prevent the spread of the evil and that a serious injury is being caused to the composers and publishers”, prudently warning that the threat of piracy was already 79

For the following see Report of the Departmental Committee Appointed by the Secretary of State for the Home Department to Inquire into the Piracy of Musical Publications (1904) Cd.1960.

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extending to literature such as “Mr. Arthur Balfour’s pamphlet on Insular Free Trade”.80 It recommended a strengthening of the criminal law and the powers available to suppress musical piracy. In its aftermath, Scrutton attended the inaugural meeting of the Musical Defence League on 4 July 1904 in the Queen’s Hall, together with a number of high-profile supporters, and told the audience, The present state of the copyright law was a disgrace to English law. It was to the dishonour of England that in this matter it gave less effective protection than almost any Continental country. It was amazing that it should be necessary to call a public meeting and to argue at all the question of whether one of the highest and most valuable classes of property that could be imagined should be protected against the commonest and lowest thieves.81

He criticised “respectable people who would look with scorn if they were asked to buy a watch because it was stolen and it was cheap [but] think nothing of buying musical pieces and books because they can get them so cheap”. A bill was introduced later that year, but it failed. In the House of Commons debate, Mr Galloway, who spoke in favour of the Bill, referred to Scrutton’s examination of Willetts, and in response Mr Caldwell, who dissented from the report, said of Scrutton (with some justification), It had been said that he represented the Board of Trade. He was counsel and adviser to the Musical Copyright Association, in proceedings under the Musical Copyright Act 1902. How could he judge impartially in the matter? In this House it was understood that when counsel was engaged in a case he should not take part in the vote upon it. Mr. Scrutton was the member of the Committee who wrote out the Report of the Majority of the Committee. It was not a report written by the chairman. The House had only to look at the questions put by him from the beginning to see exactly where his bias lay.82

The Bill was reintroduced in 1906 in modified form, and the Musical Copyright Act received the Royal Assent on 4 August 1906, imposing more severe penalties on musical piracy, and giving greater powers for the detection and suppression of piracy, although it still fell short of the 80

81

82

William Boosey has suggested that this act of literary piracy was a stunt to draw attention to the problems of musical piracy, rather than the work of someone who believed that fortunes were to be made by selling cheap copies of a political pamphlet on free trade to the masses. Boosey, pp. 116–17. The Times, 6 July 1904; Musical Times, 6 August 1904; London Musical Courier, 9 July 1904. HC Deb., Vol. 130, 26 February 1904, cols. 1146–65.

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legislative ambitions of the Musical Defence League. Scrutton was one of the guests at a dinner to celebrate its passing.83

5.5

Reform at last

In March 1909, the president of the Board of Trade appointed a committee to consider the International Copyright Convention signed in Berlin on 13 November 1908 and the various respects in which it was not in accordance with English law.84 The committee was chaired by Lord Gorrell, and included amongst its members Lawrence Alma-Tadema, William Boosey, Anthony Hope Hawkins and Scrutton.85 It was not only the committee which included names familiar from prior attempts at copyright reform. Those who gave evidence included Edwin Bale, H.A. Voysey, E.J. MacGillivray, Arthur Boosey, David Day and John Murray, as well as George Bernard Shaw. The resultant report contained a wideranging survey of copyright law – the revisions to the Berne Convention agreed in Berlin were reviewed in turn, as were the amendments necessary to give effect to them as a matter of English law, as well as those aspects of copyright law which required amendment independently of any consideration of the convention. The committee recommended that the Berlin Convention be brought into effect, Scrutton dissenting only on the extension of copyright protection to works of architecture.86 The tortuous path from the committee’s report to the Copyright Act 1911 has been told elsewhere,87 and in any event Scrutton played no part in it. The report of the Copyright Committee was his last major contribution to copyright law. His appointment to the Bench ended his practice, and he did not hear any copyright actions as a puisne judge (although he did have some engagement with the topic in the Court of Appeal). The extensive alteration to the law wrought by the 1911 Act led to the demise of his book: the fourth edition of 1903 was the last. His 83 85

86

87

84 Boosey, p. 120. The Times, 10 March 1909. Report of the Committee on the Law of Copyright (1909) Cd. 4976. Scrutton as counsel had called Anthony Hope Hawkins, along with H. Rider Haggard, Jerome K. Jerome and William Le Queux, as witnesses in a libel trial the year before: Humphreys v. D.C. Thomson & Co., The Times, 29 April 1908. An attempt by Joynson-Hicks to secure the removal of architecture from the Copyright Bill during its passage through the House of Commons failed, notwithstanding his invocation of the views of “one of our most eminent judges, Mr. Justice Scrutton . . . very probably the leading copyright expert”. HC Deb., Vol. 28, 28 July 1911, col. 1923. Alexander, pp. 266–90.

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contribution to the law of copyright, and in particular to the rights of authors, artists, composers and publishers, was immense, even if it has not proved as enduring as his impact on commercial law in general, and shipping law in particular.

5.6

Charterparties

In 1885, a law book on the carriage of goods by sea was published which remains in print over a century later.88 That book was Thomas Gilbert Carver’s A Treatise on the Carriage of Goods by Sea. While Scrutton had yet to appear in any shipping case of note, Carver was an established figure in the field of maritime law, with the result that his book bore the imprimatur of a leader in the field. It is not difficult to imagine Scrutton’s reaction when he found that Carver had beaten him into print with a specialist work on the law of carriage of goods by sea intended to address the particular problems of modern shipping practice. He sensibly ignored it when telling readers of his own work, “This great commercial change seems to justify new works on commercial law, as compared with new editions of the old works.”89 Scrutton need not have feared for the longevity of his own work. Whilst Copyright breathed its last in 1903, Charterparties saw its twenty-second edition on the 125th anniversary of its publication. The book was dedicated by Scrutton to Lord Esher, as Copyright had been dedicated to Sir A.L. Smith. In the preface to that first edition, Scrutton stated that he had “endeavoured to reduce the rather chaotic mass of details which make up commercial law to a series of principles in the form of a digest”, the law being set out “in the form of propositions with illustrative cases”, supplemented by “notes discussing the numerous legal difficulties which arise”: the familiar trinity of article, case illustration and notes which has featured in all subsequent editions. That structure appears to have been heavily influenced by the codification movement of the nineteenth century, and the “digests” of cases which often preceded statutory codes:90 Frederick Pollock’s Digest of the Law of Partnership was published in 1877, paving the way for his 88 89

90

In attenuated form. See G.H. Treitel et al., Carver on Bills of Lading (2012). T.E. Scrutton, The Contract of Affreightment as expressed in Charterparties and Bills of Lading, 1st edn (1886), p. vi, (“Charterparties”). See Alan Rodger, “The codification of law in Victorian Britain” (1992) 108 L.Q.R. 570; M.D. Chalmers, “An experiment in codification” (1886) 2 L.Q.R. 125.

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Partnership Bill of 1880, although it took another ten years to become an Act. Mackenzie-Chalmers’s Digest of the Law of Bills of Exchange, Promissory Notes and Cheques of 1878 became the Bills of Exchange Act of 1882. Codes and codifying Acts were proposed for commercial law generally,91 or for specific aspects such as sale of goods and the law of arbitration. It is not clear whether Scrutton envisaged the codification of the law relating to the carriage of goods by sea. When the third edition was published, in 1893, he suggested in the preface that “a considerable portion of the Law of Affreightment might with advantage be codified”, but by 1898 he was “rather shy about endeavours to codify the common law or decisions of the courts in a single statute”.92 The approach may have appealed as a means of bringing order to a mass of case law, and reflecting the essentially scientific approach to the analysis of legal materials which he had adopted in Copyright and, no doubt, had absorbed in Cambridge and London. Whatever its motivation, the structure proved popular with practitioners, and its influence can be seen both in William Bowstead’s A Digest on the Law of Agency (1896) and in Dicey’s A Digest of the Laws of England with Reference to the Conflict of Laws (1896). The reviews were favourable. “An entirely new work has long been needed and we are glad to find that has now been supplied”, the Law Times proclaimed, noting “as a practical and accurate work it would be difficult to improve upon it. It is clear, concise and not too exhaustive and for this reason we do not doubt that it will prove serviceable both to businessmen and to lawyers”.93 Frederick Pollock, in the Law Quarterly Review, thought that it is no exaggeration to say that Mr. Scrutton’s mastery of his subject, from the point of view both of the lawyer and of the man of business, has enabled him to achieve as high a degree of success as the nature of the case would well admit.94

91

92

93

J. Kirkpatrick, “On the codification of mercantile law” (1880) 24 Journal of Jurisprudence 638; J. Dove-Wilson, “Concerning a code of commercial law” (1884) 28 Journal of Jurisprudence 337; anon., “Codification of commercial law” (1885) 78 Law Times 321. Report from the Select Committee of the House of Lords on the Copyright HL Bill and the Copyright (Amendment) HL Bill (1898) 393, evidence. However, his preface to The Commercial Laws of the World (1911), a publication of which he was general editor and which was intended to survey the commercial law of England, the USA, France and Germany, recognises the benefits of codification. 94 (1886) 82 Law Times 133. (1887) 9 L.Q.R. 91.

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Presciently, he concluded that “we shall be surprised if such a complete and well-executed work does not take a high place among standard textbooks”.95 One of the distinguishing features of the book is the rapidity with which new editions followed. The second edition took only three and a half years, and, in the manner of new editions, boasted “nearly a hundred cases affecting its contents” since its predecessor. It was followed three years later by the third, with “between seventy and eighty new cases”. By 1904, and the fifth edition, his former pupil and colleague in chambers Frank Mackinnon had joined in him in writing the book, and they went on to produce a further six editions. Happily for the authors, the greater part of these were called for because the previous print run had sold out. In the preface to the tenth edition, for example, Scrutton and Mackinnon noted, The eagerness with which this book is purchased by the public is becoming almost a nuisance to us. The last edition, published in the summer of 1919, consisted of a larger number of copies than any previous edition, but by the end of September 1920, the publishers had not a single copy left.96

Their involvement came to an end with the eleventh edition, and more particularly with the enactment of the Carriage of Goods by Sea Act 1924, bringing the Hague Convention – and legal standardisation of the terms on which goods would be carried under bills of lading – into effect. The preface to that edition, published in 1923, noted that “there is at present before Parliament a Bill to amend the law with respect to the carriage of goods by sea” and asked that “the proposed legislation . . . receive the most careful consideration in Parliament” because “if there is any value at all in freedom of contract, it should not be interfered with except after full deliberation and the most urgent necessity”. The preface was Scrutton’s own work, Mackinnon later stating that “to tell you the whole of the story I wrote a form of preface which I suggested. He 95

96

He was not so appreciative of Carver: “we think we have with reasonable accuracy described this book as ‘sound and practical’ . . . We find no remarkable grasp of the subject, nor any special power either of logical arrangement or clearness of definition”, (1886) 5 L.Q.R. 97. However, even this was distinctly more favourable than his review of Eugene Leggett’s A Treatise on the Law of Charterparties at (1895) 42 L.Q.R. 201: “He still cites judgments at great length and without much appreciation of their meaning, stringing them together with inadequate general propositions . . . We are unable to commend this book as an example to young authors”. Charterparties, 10th edition (1921), p. vi.

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preferred to write his own”.97 The Times noted the strong attack on the bill in the preface, but also identified the flaw in that attack:98 The distinguished authors of “Charterparties and Bills of Lading” take their stand firmly on freedom of contract but are they not, in opposing the present measures, actually discouraging the shipowners and merchants from contracting among themselves? . . . The shipowning companies have been so well organised in the past . . . that some merchants . . . would claim they had not always been able to bargain freely.

The preface to the twelfth edition, by S.L. Porter and W.L. McNair, said that Scrutton and Mackinnon had stood down from the task of editing the book because, in their judicial capacity, they might be required to reach decisions on the interpretation of the Act and the rules on which it would be necessary for the book to pass comment in advance.99 It is unlikely to have been judicial sensitivity alone which ended Scrutton’s involvement. For the second time, there had been a major statutory alteration in the subject matter of one of his wellestablished textbooks. It is possible that the resultant burden of revising the text was itself sufficient incentive for him to hand on the task to others.

5.7

More Yorke Prizes

The Yorke Prize for 1882–3, on “The History of the Laws Affecting the Property of Married Women in England”, eluded Scrutton, being awarded to Basil Edward Lawrence.100 This rare lapse – whether in quality or ambition is not known – was followed by three successive prize-winning essays, each of which was published by Cambridge University Press. The first was The Influence of the Roman Law on the Law of England, the title which Arthur Cohen QC and Robert Romer set for the Yorke Prize of 1883. Scrutton’s previous Yorke prize essay had been published by John Murray at Murray’s expense, reflecting the topicality of the subject and, no doubt, the attraction for Murray of a theory of the law of copyright which was so author-friendly.101 The subject of the second essay lacked 97

98

99 101

Report from the Joint Committee on the Carriage of Goods by Sea Bill [HL] (1923) V Parliamentary Papers 735, at p. 101. The Times, 25 May 1923. The Times also published a strong attack on the “caustic criticisms” in the preface on 22 May 1923. 100 Charterparties, 12th edn (1925), p. iii. The Times, 24 April 1884. For the following see Cambridge University Press Archives, PB 13B/87–90.

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this appeal, and Murray turned it down.102 Scrutton wrote to the Cambridge University Press stating that he was “desirous if possible of getting it published in more than the usual perfunctory pamphlet form”. However, he may not have assisted his cause by his observation that “the subject is naturally not attractive to a London publisher, but [it] seems to me that a University Press might fairly be expected to take it up”.103 He hoped that his success to date, and the favourable opinions of the examiners, might induce a favourable response. The Syndicate104 suggested Scrutton meet the expenses of publication, provoking the response, “I certainly hoped that the University Press, if the Syndicate thought my essay a good one intellectually, would bear the expenses of publishing it”.105 By way of “a justification of my own expectation than for any other reasons”, he set about explaining why the Press should publish the work regardless of any considerations or profit: the raison d’être of the Press was, he imagined, “while endeavouring to avoid pecuniary loss”, to produce “works of research and learning” with the aim that “they would be in intellectual profit by publishing valuable works which would otherwise not find a publisher”. Having appealed to their sense of duty, he then played on their sympathy: “I cannot afford to expend any considerable sum of money in publishing it, as otherwise I should entirely swallow up the money value of the prize and have no pecuniary reward for my work”. He also came to the Press “with the additional claim on them that I was a graduate of their own university of some distinction”. The groundwork having been laid, he offered to contribute fifty pounds towards any loss in publication. The Syndicate were seduced by his advocacy and agreed. At this point Scrutton revealed that the one piece of original research in the book was shortly to be published in the Law Quarterly Review, explaining that as it was only one-tenth of the book there would be no prejudicial competition and “as I should refer to the complete book it would serve as a sort of advertisement”.106 He concluded by supposing that “there will be no difficulty in inserting at the end an advertisement with press 102

103 104 105 106

It was offered with some diffidence, Scrutton commenting “I don’t suppose our last experiment is likely to tempt you to take any more from my pen”. Scrutton to John Murray, 18 March 1885, John Murray Collection, NLS/MS41075. See also Scrutton’s letter of 9 April 1885. T.E. Scrutton to Cambridge University Press, 18 March 1885. The governing body of Cambridge University Press. T.E. Scrutton to Cambridge University Press, 25 March 1885. Scrutton to Cambridge University Press, 13 May 1885.

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notices of my book on copyright”. But for the innate sympathy for the author with a manuscript in search of a publisher, one might almost feel sorry for the Syndicate.107 The book, dedicated to another Queen’s Bench Division judge, Sir Alfred Wills, was a work of legal history which, with one notable exception, essentially comprised a review of secondary sources, and a critique of the views of other legal historians on the extent to which Roman law had been received into English law.108 The result is a book which is somewhat strident in tone: the work of Mr Coote was dismissed with the observation that “the ingenuity with which he makes bricks without straw, and describes institutions without evidence, almost conceals the entire lack of foundation for some of his statements”,109 and it said of Mr Finlason that “his materials hardly warrant the boldness of his claims”.110 That stridency of tone was particularly apparent in the one piece of original work accomplished: an analysis of the origins of Bracton’s Law and Customs of England and in particular its debt to the Summa Azonis, a summary of Roman law compiled in Bologna. Scrutton was working from the translation of Bracton prepared by that familiar whipping boy of English legal historians, Sir Travers Twiss, whose translation and analysis were found wanting in numerous respects.111 In his article in the Law Quarterly Review anticipating the fruits of that Bracton research, Scrutton was particularly savage.112 After considering some especially egregious translations, he concluded, With these choice specimens we may perhaps take our leave of the Twiss museum of curiosities, in which subsequent inquirers may still find a rich harvest. But it is a matter of great regret that a work of importance should be edited in so slovenly and ignorant a manner.

Once again the book was well reviewed – “ a great deal above the average . . . with no part . . . without interest and instruction”, the Law 107

108

109 111

112

Scrutton told John Murray that he had secured a publisher for “the last essay which you wisely declined” and that “rather to my own surprise I have heard that copies have been bought and read”. Letter of 14 December 1885, John Murray Collection, NLS/MS41075. Something Scrutton made no effort to hide. The preface to The Influence of Roman Law on the Law of England (1885) (hereafter “Roman Law”) stated “Except in one instance, I do not pretend to have done more than collected and, to the best of my ability, criticized what has been written on the subject by my predecessors in the field”. 110 Roman Law, p. 13. Roman Law, p. 13. Roman Law, at pp. 83, 100 (“in 12 pages of text I have counted 20 wrong references and 23 references to parallel passages omitted”). T.E. Scrutton, “Roman law in Bracton” (1885) 4 L.Q.R. 425.

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Times observed,113 while regretting that he “handles Travers Twiss with some roughness”. Frederick Pollock was also appreciative in the Law Quarterly Review: “a very good essay, legal work of just the kind that a learned university should promote by its prizes”.114 However, the tartness of Scrutton’s tone drew an adverse reaction in some quarters, one reviewer referring to “a blunt pugnacity in the demolition of unfounded theories” and asserting that “keenly as he enjoys exposing the hasty statements and conclusions of others, he certainly cannot be considered immaculate himself”. Of Scrutton’s criticism of Twiss the same reviewer said, such persistency . . . in adverse criticism of the work of a former Regius Professor of Civil Law in the University of Oxford does not, as a matter of inter-academic courtesy, read well as part of a Prize Essay adjudged by a sister University, and from the pen of one pleading youth as his apologia for his own possible shortcomings.115

Later legal historians have been every bit as critical of Scrutton’s analysis as he had been of Sir Travers Twiss.116 As Professor Brian Simpson noted, “textual studies seem to encourage in their devotees the sharper side of human nature”.117 When Cohen and Romer set the next Yorke Prize – “The History and Policy of the Laws Restraining the Alienation and Settlement of Land in England” – they may have been expecting a similarly diligent historical analysis. Scrutton’s winning essay, dedicated to his former pupil master Kenelm Digby, delivered that, with much learning from the Year Books and elsewhere, but rather more. As Scrutton’s addition to the essay title Land in Fetters might suggest, they also received a polemic. Scrutton began the book in carefree vein, referring to reviews of The Influence of Roman Law:118 The Saturday Review regretted that my treatise “was marred by a pervading flippancy in tone” and expressed the hope that I might when a little older become less “cocksure”. I naturally took this to heart, and was about to endeavour to mould my style on the sober and modest exemplar prescribed by the Saturday Review itself. But my intentions were

113 115 116 117 118

114 (1886) 88 Law Times 28. (1886) 5 L.Q.R. 96. (1886–7) 12 Law Mag. & L. Rev. 5th Series 307. See, for example, H.G. Richardson, Bracton: The Problems of His Text (1965). Simpson, review of Richardson (1967) 11 Am. J. Legal Hist. 85. T.E. Scrutton, Land in Fetters or the History and Policy of the Laws Restraining the Alienation and Settlement of Land in England (1886) (“Land in Fetters”).

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bewildered by a critic in the Law Quarterly Review who informed me that “the author’s opinions are for the most part sober and clearly and modestly stated”. And on reflection I felt that a style which was, in the opinion of two such authorities, both “sober” and “flippant”, “cocksure” and “modest” was such a unique production as to be worth preserving.119

Such pleasantries over, his first sentence announced that “the history of the English Land Law is the history of intentions of Parliament frustrated by the ingenuity of lawyers, of national legislation perverted and thwarted in the interests of a class”.120 He traced a historical tendency for “the landlord to accumulate land, for the farm to become larger, for the labourer to become more dependent, and to live with less hope of ever acquiring land of his own”.121 He believed this was adverse to the national interest, because “from a social and national point of view, the establishment of a class of peasant owners, hard-working and thrifty, touched by the ‘magic of property, which turns sand into gold’ . . . working for their own benefit and their children” was highly desirable. The present condition of ownership was destructive of “political stability”, which was better served when “the masses of the nation are educated to the right use of political power, and have a stake, however small, in the national land”.122 There was also a sustained attack on primogeniture, which devolved land “without any regard to . . . character or disposition”, often to someone who “may be a spendthrift, a drunkard, a man devoid of all sense of his duty as a landlord”, and providing “a crowd of claimants for public employment as of right . . . the church and the public services have been flooded with younger sons, not for their competency, but because the system which produces cannot support them”.123 This was strong stuff. The Law Times was “not surprised that Mr Scrutton ‘goes in’ for Radical reform of the land laws”124 and thought “his sharp and trenchant remarks on the conduct of squires and the clergy with respect to labourers’ cottages and education . . . unfair to the clerical body”. Frederick Pollock in the Law Quarterly Review was able to look beyond the politics to the merits of the underlying research, noting that “in spite of the somewhat sensational title which the author has chosen to prefix to it, he may fairly be congratulated not only on the good 119

120 123

Land in Fetters, p. viii. As with most writers, Scrutton paid close attention to his reviews, all of which were cut out and kept. Scrutton Papers. 121 122 Land in Fetters, p. 8. Land in Fetters, p. 105. Land in Fetters, p. 146. 124 Land in Fetters, pp. 152–3. (1886–7) 82 Law Times, p. 416.

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fortune which attended his merits but on the solid merits of his treatise”,125 while the Spectator said that the book was “an intelligent, able and original summary”.126 His last essay was on “The History and Policy of the Laws Relating to Commons and Enclosures in England”, which won his final Yorke Prize in 1886 and was published by the University Press in 1887, complete with advertisements for Scrutton’s other books, including those from other publishers. Once again he gave the title a prefix – in this case Commons and Common Fields127 – and once again the reference to “policy” allowed a Radical perspective on the importance of preserving rights of common: The growth of population and the adulteration of the chief means of living, pure air, for which our ever-increasing factories are responsible, bring more and more to the front the need of open spaces accessible from our great towns . . . Both the poor, who are deprived of any interest in land, and the public, more and more restricted to the hard high road, are affected by the Policy of Enclosures and Individualism.128

He had little truck with the contrary argument – that it would “confiscate rights of profit and deprive lords of manors of their legal rights to make their profits by enclosures”. In Scrutton’s opinion, rights in land stood on a different footing to other property rights, “for land is essential to the existence of the English people” and “it can be hardly be supposed that the community will create and protect as against itself legal rights in land which are injurious to the community”.129 His own interest, as an active walker and member of the Climbers’ Club, in rights of public access to open spaces, found expression in the “accepted maxim of public policy that open spaces should be preserved for the health and recreation of the community, metropolitan commons for their short holidays, mountain districts for their long vacations”.130 Once again, he published an extract of the book as an article in the Law Quarterly Review.131 More, one suspects, for the soundness of its historical research than for the radicalism of its proposals for future reform, the book received favourable reviews from the colossi of legal history: Frederick Pollock thought it a “suggestive and interesting essay”, with the interpretation of the 125 127

128 131

126 (1887) 9 L.Q.R. 95. The Spectator, 9 July 1887. T.E. Scrutton, Commons and Common Fields or the History and Policy of the Laws Relating to Commons and Enclosures in England (1887) (“Commons”). 129 130 Commons, p. vii. Commons, p. 174. Commons, p. 175. T.E. Scrutton, “The origin of rights of common” (1887) 7 L.Q.R. 373.

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Domesday Book “neat and ingenious”,132 and F.W. Maitland was similarly impressed.133 Scrutton would not have claimed to match the merits of either as a legal historian. He once memorably said of Maitland that “most historians throw a light on dark places, he threw a search light on the unknown”,134 although he did not rate either Pollock or Maitland as lecturers.135 Certainly his historical output has not dated anything like as well. However, Scrutton had a thorough grasp of the historical origins of the English law and its basic concepts, something which added appreciably to his qualities as a lawyer and, in due course, as a judge.

5.8 The Scrutton machine As with his pursuit of degrees, there was something relentless about the speed and frequency with which Scrutton produced law books. In addition to the multiple editions of Copyright and Charterparties, his other three Yorke Prizes and their Law Quarterly Review derivatives, he turned his lectures to the students of the Incorporated Law Society into yet another book in 1891. The Elements of Mercantile Law was, Frederick Pollock noted, “a small book which students will find more profitable than many larger books . . . an exposition of the living law by a lawyer thoroughly familiar with it”.136 Scrutton managed to repackage part of this as a “General Survey of the History of the Law Merchant” for his contribution to Select Essays in Anglo-American Legal History published in 1907,137 which he completed with a contribution entitled “Roman Law Influence in Chancery, Church Courts, Admiralty and Law Merchant”, which he recycled from his second Yorke Prize essay.138 The consolidation of various Merchant Shipping Acts in the Merchant Shipping Act 1894 brought forth a commentary of what was at that point the longest enactment on the statute book.139 It appears as though Scrutton had planned an earlier work on this subject some ten years before, but the prospect of a codifying and amending bill may have 132 133 134 135

136 137 138 139

Frederick Pollock, (1888) 13 L.Q.R. 91. F.W. Maitland, (1888) 2 No. 11 English Historical Review 568. Laski to Holmes, 25 March 1929, Holmes–Laski Letters, Vol. II, p. 1142–3. Scrutton to Llewellyn, 25 November 1930, Karl Llewellyn Papers, Box 52, XIX.4: “while their matter was excellent . . . bad lecturers”. Frederick Pollock, (1891) 27 L.Q.R. 287. Select Essays in Anglo-American Legal History, Vol. III (1907), pp. 7–16. Select Essays in Anglo-American Legal History, Vol. I (1907), Chapter 7. T.E. Scrutton, The Merchant Shipping Act 1894 Annotated (1895) (“MSA 1894”).

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delayed it.140 When it arrived, it was in his trademark style: “There are signs that all this rearrangement and simplification has not been allied with a very clear grasp of the Acts”,141 he lamented, protesting that “even the combination of the draftsman and a strong committee has not sufficed to prevent some shocking mistakes in the marginal notes to the sections”.142 The grammar of the Act was occasionally “bad even for an Act of Parliament” and the pilotage law was “a disgrace to any civilised system of jurisprudence and this Act has made it worse”. The Law Quarterly Review was rather more temperate in its review. It noted that Scrutton “has strong views which he expresses in similar terms upon the general character of the new Act as a specimen of modern legislation” and noted that “the work appears to have been well and thoroughly done”.143 However, the book did not see a second edition, and it was the rival work of a Newcastle solicitor, Robert Temperely, which became the standard text.144 It was only possible for Scrutton to indulge his appetite for publication because his publishers had an appetite to publish his work, and because law students and practitioners wanted to buy it. The power of the Scrutton publishing brand made him a natural choice for consulting editor when Sweet and Maxwell embarked on a very ambitious publishing venture: The Commercial Laws of the World Comprising the Mercantile, Bills of Exchange, Bankruptcy and Maritime Laws of All Civilised Nations in the Original Languages Interleaved with an English Translation.145 The work was to published in four editions – in England, the USA, France and Germany, with Scrutton’s fame as a commercial lawyer on both sides of the Atlantic reflected in his role as general editor for both English-speaking editions. His own contribution appears to have been limited. William Bowstead was the general editor, and, as Scrutton explained,146 My own responsibility for and share in this work is I think accurately described in the title of “Consulting Editor”. I have been consulted on and am responsible for the plan of the work . . . I have been consulted in questions of translations where the General Editor thought it necessary.

140

141 143 145 146

Scrutton to John Murray, 13 May 1884: “I have an edition of the Merchant Shipping Act coming out from Waterlows”, John Murray Collection, NLS/MS41075. 142 MSA 1894, p. iv. MSA 1894, p. v. 144 (1895) 42 L.Q.R. 200. MSA 1894. Publication of the various volumes of the English edition began in 1911. At p. vii.

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In respect of the English edition he had been consulted on the overall plan, and “in certain branches of the law with which I have special acquaintance I have read the proof sheets and made such suggestions as occur to me. Further than this my responsibility does not go”. Over the following three years, volumes set out the commercial laws of the countries of South America, the USA, Cuba, the various countries of the British Commonwealth and Empire, and a number of the main countries of Europe. However, of the thirty-five planned volumes, eleven were unpublished on the outbreak of war, including the final volume on German law, and so they were to remain.

6 The Bench

6.1

Prelude to an appointment

In January 1910, Scrutton was appointed commissioner of assize for the North East Circuit – a part-time judicial position which required him to accompany Mr Justice Ridley on circuit, hearing criminal and civil cases in Newcastle, Durham, York and Leeds in February and March of that year.1 He was persuaded to take the appointment on the basis of the promise of the then Lord Chancellor Loreburn, his former Eighty Club colleague R.T. Reid, that he would be appointed to the Bench once the Supreme Court of Judicature Bill, which would authorise the appointment of two additional judges, had passed through Parliament. Earl Loreburn explained in a letter to one of King Edward VII’s secretaries that Scrutton and Avory – who was in the same position –were “very busy men” who were aware that if there was a change of Government before the Bill passed through Parliament, Loreburn would not be able to fulfil his promise, and that they understood “the duty which rests upon them of maintaining complete silence until the Bill shall have received the Royal Assent and their names have been placed before the King and the King has signified his pleasure”.2 No records relating to Scrutton’s appointment have been located, but it will almost certainly have involved soundings from members of the Bar and an analysis of the merits of prospective candidates by the Lord Chancellor’s principal private secretary, Sir Kenneth Muir Mackenzie.3 1

2

3

For a report of the sitting days fixed by Ridley and Scrutton see The Times, 14 January 1910. Letter from Earl Loreburn of 1 January 1910, Royal Archives, Windsor Castle, RA Vic/ Main/W/66/105. I gratefully acknowledge the permission of Her Majesty Queen Elizabeth II to make use of this material. This was certainly the approach followed under Mackenzie’s successor, Sir Claud Schuster, and there is no reason to suppose any different approach was adopted at the time of Scrutton’s appointment. For Schuster’s recommendations on judicial appointment see NA/LCO 2/601, 19 January 1918 (“I took a great deal of trouble to find out the view of the

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In characteristic fashion, Scrutton prepared for his appointment by reading Archbold, the leading criminal law and procedure text, over the long vacation, but complained that he “was disappointed with the love interest in it, which he found very weak”.4 His service as commissioner of assize saw him trying “serious crime” with very little opportunity to ease himself in gently: February brought burglary in Newcastle;5 March brought embezzlement of £7,000 at Durham (five-year sentence);6 and at Leeds were a 12-hander involving allegations of riot (sentences of between two and six months7), the rape of a thirteen-year-old girl (ten years),8 and further rape9 and manslaughter10 trials. As a commissioner of assize, he also tried civil jury actions as well as crime, including claims under the Workmen’s Compensation Act.11 It is reported that he “discharged his duties with an air that won the cordial respect of the Bar”.12 In the event, Scrutton did not have to wait for the Supreme Court of Judicature Act to receive the Royal Assent. He was appointed on 11 April 1910 to the vacancy created by the resignation of Mr Justice Sutton due to ill health:13 “Sutton J. est more. Vive Scrutton J.”, as it was announced in the Solicitors’ Journal.14 It was later hinted that the appointment may have owed something to Scrutton’s political loyalties,15 but his merits were so obvious that (in contrast to many other such appointments) it did not take the special vantage point of party affiliation to discern them. The Law Times reported that the appointment was “a good one”,16 and the Solicitors’ Journal hailed a “strong accession” to the Bench.17 Loreburn’s appointments were almost always made on merit and were usually good ones: Heuston notes that of his eight King’s Bench appointments, “each . . . with the exception of Horridge, was a perfectly sound and in some cases (Hamilton and Scrutton) distinguished appointment”,

4 6 8 9 11

12 13 14 15

16

Profession”); NA/LCO 2/601, 20 September 1917 (“At the risk of wearying you, I will set out the most obvious names for consideration”). 5 Cecil Whitely, Brief Life (1942), p. 18. R. v. Blake (1910) 4 Cr. App. Rep. 275. 7 The Times, 9 March 1910. The Times, 16 March 1910. R. v. Norton overturned at [1910] 2 K.B. 496. 10 R. v. Bradley (1910) 4 Cr. App. Rep. 225. R. v. Rhodes (1910) 5 Cr. App. Rep. 35. Cory & Son Ltd v. France, Fenwick & Co. Ltd upheld by the Court of Appeal at [1911] 1 K.B. 114. Law Journal, 16 April 1910, at p. 258. The Times, 12 April 1910: not on the death of Mr Justice Walton as reported by Heuston. Solicitors’ Journal, 16 April 1910, at p. 419. The Times, 21 August 1934, referring to the fact that he “had some claim on those in power, having fought Limehouse Division in the Liberal interest in 1886”. 17 Law Times, 16 April 1910, at p. 539. Solicitors’ Journal, 16 April 1910, at p. 419.

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with Horridge “if not a success, at least not disgraceful”, while there were three good Chancery appointments in Neville, Parker and Eve.18 In this respect Loreburn was a refreshing contrast to his predecessor, Halsbury, whose judges were almost invariably political appointees of dubious quality. It was said that, when discussing his worst appointment, Halsbury named one judge, to which his companion responded, “perhaps, but there are others whose claims ought not to be overlooked”, and when Halsbury appointed Lindley LJ, a judge whose quality was widely recognised, to the office of Master of the Rolls, one commentator expressed surprise because “Lindley had nothing to recommend him but merit”.19 On the same date on which it carried news of his appointment, The Times also reported the first occasion on which one of his decisions was overturned by a higher court, the Court of Criminal Appeal quashing a conviction for rape because of errors in his directions to the jury:20 “one of the little ironies of life . . . But that is all in the day’s work – the slave in the Roman triumph”, the Solicitors’ Journal noted.21 He was sworn in on 18 April, and immediately began hearing jury actions.22 Once the immediate excitement of the appointment – the letters of congratulation, fittings for judicial robes, swearing in, and the knighthood – has passed, it is not unknown for judicial appointees to begin to miss the camaraderie of the Bar and the chambers they have left behind, and to wonder whether they have made the right decision. There is an episode in Scrutton’s first year as a judge which may be revealing in this respect. He had retained his position on the register as a voter in the Inner Temple, and his eligibility to do so was challenged before the Revising Barrister by the representative of the Conservative interest. The Liberal representative responded that he had received a letter from Scrutton, in which he said that he was the tenant of the rooms exactly the same as before his appointment to the bench in April last. There was no change in his occupation till Whitsuntide. Then McKinnon came and used the room. He was still tenant, however, and had his books and furniture there and he could and did use the chambers still, though not so frequently as formerly when practising.23

It was held that he was entitled to remain on the register, but there was, and could be, no turning back.

18 20 22

19 Heuston, Lives, pp. 150–1. Mathew, p. 70. 21 R. v. Bradley (1910) 4 Cr. App. Rep. 225. Solicitors’ Journal, 16 April 1910, at p. 419. 23 The Times, 19 April 1910. The Times, 23 September 1910.

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6.2 On circuit If Scrutton was hoping that his judicial robes would bring a more relaxed life, he was to be disappointed. The assize system, which sent judges moving from town to town on circuit trying criminal and civil cases accumulated to await their arrival, was very demanding. In May 1910, Scrutton was allocated to the summer assize on the North and South Wales and Chester Circuit, which saw him trying cases from Newton on 24 May to Swansea on 16 July.24 He took the winter assize on the North Circuit – from Carlisle on 24 October to Manchester on 14 November.25 He had a year off in 1911, but was on the Midland Circuit for the winter assize in 1912 (Bedford to Warwick from 12 October to 7 November).26 The number of judges on circuit contributed to lengthy delays in the King’s Bench Division, and Scrutton gave evidence to a Royal Commission formed to investigate the causes of that delay on 1 May 1913.27 His evidence to the Royal Commission gives a good idea not only of the frequency of a judge’s circuiting, but also of the lengthy hours of sitting. He noted that including his time as commissioner, he had been on the North East Circuit three times, and was due to go out again in 1913. On his first trip, he finished sitting at seven o’clock at night in Newcastle, before proceeding to begin hearing cases in Durham the next day. On his second trip he finished sitting in Newcastle on the day he was due to go to Durham. On occasions, he took his motor car with him, and used that to motor from town to town over the course of the assize. This may not have endeared him to judges not possessing their own transport, nor, perhaps, to the Royal Commission when he told them that he used his car to speed between assizes, “I don’t know why I should”. Otherwise it was “first class to Durham by the N.E.R.” in a reserved railway car.28 On the Warwick assizes, he finished a murder trial in Aylesbury at 9.00 p.m.29 He told the Commission, “I protest most vigorously against the hours we have to sit on circuit . . . Once I made a bad mistake at 8 o’clock simply because I was tired and the jury were tired”. There were 24 26 27

28 29

25 The Times, 25 May 1910. The Times, 12 October 1910. The Times, 12 October 1912. Evidence taken before the Royal Commission on Delay in the King’s Bench Division (Cd.7178) 1914 P.P. 37/21, p. 98. T.E. Scrutton, “The war and the law” (1918) 134 L.Q.R. 116, at p. 118. Evidence taken before the Royal Commission on Delay in the King’s Bench Division (Cd.7178) 1914 P.P. 37/21, at p. 101.

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also Saturday sittings – “when I went on the Midland Circuit in the Autumn I may say I sat long hours on Saturday and I may add that I am a judge who is supposed to be strongly in favour of not sitting on Saturdays, and I am”. There were fifty-seven assize Saturdays between Michaelmas 1910 and Hilary 1912, and Scrutton sat for eight of them. By the standards of the time, this was a relatively light load: Mr Justice Phillimore sat for forty-four Saturdays, and Mr Justice Darling for twenty-nine.30 Scrutton’s comparatively favourable number reflected his aversion to sitting on Saturdays (and a preference to sit late into the night to finish) and the fact that the Commercial List did not sit on Saturday. When points of law arose, the legal materials were often not available to argue them on circuit, necessitating the adjournment of the cases to London for legal argument.31 Life on circuit meant long separations from a judge’s wife and family. Scrutton told the Royal Commission that “on double circuits they cannot take their wives with them; on single circuits they can, but their wives when they have children do not always want to come”.32 Lady Scrutton was almost certainly in this category: with the exception of Hugh at school, her children were all living at home in 1911, and Janet remained there until after Scrutton’s death. A letter from Scrutton to his wife from the judge’s lodgings in Liverpool, Newsham House, survives and gives some insight into his life on circuit.33 Life at home continued in his absence, his wife attending various concerts: “Glad you enjoyed your concert. I hope you will greatly enjoy this classical – it is a pity that they are so long”. He was working hard: he had “5 ½ cases left. I think I shall finish on Saturday – and get some golf in on Sunday morning”, with “another troublesome judgment to write – and just can’t see my way”. However, there was also a strongly convivial side to circuit life. The judge was accompanied by “his youthful marshal who acted as a sort of A.D.C.” There were numerous dinners – Scrutton’s letter noted “tonight Avory’s brother-in-law and the leader of the circuit are coming” – and he later warned Sir John Sankey on the latter’s appointment to the Bench

30 31

32

33

HC Deb., Vol. 38, 21 May 1912, col. 1894. E.g. George v. Thomas, [1910] 2 K.B. 951, when Scrutton adjourned a case before him at the Pembroke assizes “as it appeared to involve the consideration of statutes and authorities not available there”. Evidence taken before the Royal Commission on Delay in the King’s Bench Division (Cd.7178) 1914 P.P. 37/21, at p. 104. Undated, Scrutton Papers.

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that “you will put on weight very quickly”.34 There was the occasional opera – when in Liverpool he was “looking forward to Tales of Hoffmann”. And there was a sense of camaraderie, both with his fellow judges and with the barristers, with whom there were numerous jokes (“I got a better joke off today which amused the bar”, Scrutton told his wife). For all the hard work and separation involved, when Scrutton was appointed to the Court of Appeal in October 1916, he told Sir John Simon, “I don’t like losing circuit”.35

6.3

Crime and punishment

Both on circuit and in London, Scrutton had a heavy diet of crime. In addition to the burdens of handling and directing a jury, these could involve difficult issues of law. In his first year as a judge, he presided in the first criminal case to go to the House of Lords: R. v. Ball, in which he had admitted similar fact evidence in a trial for incest, only to be overturned on appeal.36 On this occasion he had the satisfaction of seeing his decision upheld by a nine-judge House of Lords.37 There being no rules for criminal appeals, there was a preliminary hearing before the House to formulate them for the case at hand, and as there was no power to keep the defendants in custody pending such an appeal, the defendants were released before the appeal was heard. While Scrutton suffered two reversals of conviction from his first outing as a commissioner of the assize,38 he appears to have learned quickly. Convictions on two of three counts were quashed in R. v. Connor,39 but that apart there were no similar reverses after his appointment to the High Court Bench. Scrutton donned the black cap after presiding over the murder trial of Frederick Henry Thomas, and was upheld by the Court of Appeal,40 and again after 34 35

36 37 38

39 40

Letter of 22 April 1914, Sankey Papers, Bodleian Library, C.527, folio 222. Scrutton to Sir John Simon, October 1916, Simon Papers, Bodleian Library, MS53, folio 23a. In the same letter, he stated that he confidently expected to see Simon “in a higher sphere . . . probably reversing me from the Woolsack”. In the event, Simon became Lord Chancellor six years after Scrutton’s death (having turned down an earlier offer of the office). R. v. Ball (William Henry), (1910) 5 Cr. App. Rep. 238. R. v. Ball (William Henry), [1911] A.C. 47. R. v. Bradley, (1910) 4 Cr. App. Rep. 225; and R. v. Norton, (1910) 5 Cr. App. Rep. 7, (1910) 5 Cr. App. Rep. 65 (in which the error was sufficiently egregious that prosecution counsel conceded the misdirection on appeal). (1913) 8 Cr. App. Rep. 152. R. v. Thomas (Frederick Henry), (1912) 7 Cr. App. Rep. 36.

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the trial of George Joseph Smith, the “Brides in the Bath” killer, by some distance Scrutton’s most celebrated criminal trial.41 One near miss was an extraordinary case of criminal libel: R. v. Archibald Brownhill.42 The case involved poison-pen letters. It bore many similarities to the “Great Wyrley Outrages” which had led to the wrongful conviction of George Edalji and the establishment of the Court of Criminal Appeal in 1907.43 The case was referred by the Home Secretary to the court under Section 19(a) of the Criminal Appeal Act, to determine whether the prerogative of mercy should be exercised in relation to the conviction. The Court of Appeal heard evidence from witnesses, including handwriting experts, but decided there was insufficient evidence to overturn the conviction. The general consensus appears to have been that Scrutton became an accomplished criminal judge. The criminal barrister Cecil Whitely suggested, Some of the best criminal Judges were those who had practised in the Commercial Court and who, until their elevation to the Bench, had never attended an Assize or any other criminal court, such as Scrutton, Roche, Greer and Atkin, before each of whom it was a real pleasure to practise.44

Sir Frank Mackinnon went somewhat further, claiming that “when he became a judge, however, he was the best judge in a criminal case of his time, perhaps of any time”45 (although his Dictionary of National Biography entry was a little more prosaic, suggesting that he was “very efficient in trying prisoners”).46 However, evaluations of Scrutton’s performance as a criminal judge were not universally positive. On his appointment to the Court of Appeal, the Solicitors’ Journal said that “in criminal cases and a certain type of jury trial he has sometimes shown a lack of perspective and patience”.47 One suspects that there are a number 41 43

44

45

46 47

42 See Chapter 7. (1913) 8 Cr. App. Rep. 258. Edalji’s conviction, and the campaign by Sir Arthur Conan Doyle to vindicate him, are the subject of Julian Barnes’s novel Arthur and George (2005). Cecil Whitely, Brief Life (1942), p. 18. However successful he may have become, his lack of familiarity with criminal practice was used against him. When he proposed the abolition of the Grand Jury system, Stratford Dugdale KC at the Warwick assizes dismissed his view on the basis that he was “a most able commercial lawyer but had had no experience of criminal law before being appointed a judge”. The Times, 7 January 1914. Sir Frank Mackinnon, On Circuit 1924–1937 (1940), p. 3. The Law Journal, 6 October 1934, referred to the fact that Scrutton was “a great criminal as well as a great commercial judge”. Oxford Dictionary of National Biography. Solicitors’ Journal & Weekly Reporter, 14 October 1916, at p. 774.

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of undercurrents lurking in the comments of Lord Sankey, the Lord Chancellor, speaking at the reopening of the Law Courts after Scrutton’s death, that “in criminal trials he exhibited justice and mercy, but a firmness and courage in the conduct of proceedings”.48 There were, of course, successful appeals against sentence,49 but new judges are usually told that if they are never successfully appealed on sentence, they are sentencing with insufficient severity. That is an accusation which could not be levelled against Scrutton, who appears to have been a particularly tough criminal judge. He was especially wary of any defence based on a defendant’s non-responsibility for his actions. In the Thomas case, he refused to put a case to the jury based on “impulsive insanity”, which was said to have left the defendant incapable of distinguishing between right and wrong at the time of the murder.50 When a defence based on automatism was advanced to a charge of theft of a motor car at the Derby assizes,51 supported by various medical experts, he told the jury, “In that dock was a body and in that body was a brain which in some mysterious way controlled the actions of the body and which possessed a power by some means still undiscovered by science of determining right from wrong”. He told them, He had an uncomfortable feeling that if that body had not been so well-dressed but had appeared in corduroys and if that defence had not been put forward by an eminent King’s Counsel and supported by specialists but had been spoken from the dock the jury would have thought little of it.

This belief in free will did not reflect any religious conviction – the frequency of Scrutton’s church attendance as a child, and the religious devotion of his parents, had had the predictable consequence of making him a “proper Victorian atheist”52 – but more earthbound notions of personal responsibility for one’s actions and their consequences.53 The jury duly convicted, but Scrutton’s direction drew an adverse response

48 49

50 51 52 53

The Times, 3 October 1914. E.g. R. v. Bennett, (1911) 6 Cr. App. Rep. 203, three years’ penal servitude for theft reduced to twelve months’ hard labour; R. v. Connor, (1913) 8 Cr. App. Rep. 152, five years’ penal servitude for inflicting grievous bodily harm reduced to three. R. v. Thomas (Frederick Henry), (1912) 7 Cr. App. Rep. 36. R. v. George Rowland Chetwynd, The Times, 4 November 1912. Private communication from Dr Mary Midgley. It may be recalled that Scrutton’s first paper to the Cambridge University Moral Sciences Club had been on “Free will”.

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in The Times from Arthur Compton-Rickett.54 Taking responsibility for one’s actions extended to taking punishment in the right spirit. When sentencing Frederick Thomas to death for murder, Scrutton “earnestly implored him that in the time that remained to him he might by contrite repentance meet his death as an Englishman should”.55 Scrutton appears to have been particularly keen on flogging as a sentence for criminal offences. When sitting at the Leeds assizes, he sentenced two prisoners convicted of robbery with violence to twenty-four strokes of the cat and imprisonment with hard labour, a striking feature of the sentence being the division of flogging “into two doses of twelve strokes each, with an interval of three months for the flesh to heal”.56 The sentence was the subject of a Parliamentary question by Sir William Byles of Winston Churchill, the Home Secretary, it being suggested that the order was “a novel refinement of this form of punishment”. Churchill noted that the case was under appeal, but that “in previous cases I have remitted a second instalment of a flogging for the same offence”. The appeal against this sentence was dismissed, on the basis that “having been convicted of robbery with violence, they are anxious, as such men generally are, to prevent any violence being done to themselves” and that “the cat is now very rarely inflicted, but this is just the kind of case in which it is necessary”.57 In Scrutton’s view, the sentence was too rarely inflicted. The following year, in a trial at the Lincolnshire assizes of defendants charged with setting fire to haystacks, he asked those “who advocated making prisoners more comfortable . . . to reflect when they found people who could not work or would not work [who] preferred prison to the workhouse” and suggested, It was worthy of the consideration of the Legislature whether judges should not be given power to order flogging for those people. He did not think they would be so anxious to get back to prison if they knew a flogging was the first thing that awaited them.58

The following month he passed a sentence of twenty-one months’ hard labour and eighteen lashes for robbery with violence by a hardened criminal at the Birmingham assizes on the basis that if the sentence was to deter then “the punishment likely to have that effect was the lash 54

55 57

The Times, 13 November 1912. Rickett, then in practice at the Bar but better known as a literary critic, was an occasional correspondent to The Times on matters relating to criminal justice. See e.g. 10 January 1923, questioning the deterrent effect of capital punishment. 56 The Times, 17 October 1911. HC Deb., Vol. 29, 3 August 1911, col. 571. 58 R. v. Conlon (Harry), (1911) 6 Cr. App. Rep. 289. The Times, 28 October 1912.

6.4 commercial judge

159

for such men were generally horribly afraid of hurting their own skin”.59 He ordered eighteen strokes of the cat for robbery with violence again the following year, expressing his regret he could not also order it for burning hayricks,60 and in 1914 he passed a sentence of whipping on a thirteen-year-old child for larceny, before stating a legal issue for the Court of Appeal to determine who, if anyone, had legal power to detain the child while the punishment was administered.61 All of this may suggest a fulminating Victorian judge in the Fitzjames Stephen tradition, but Scrutton’s judicial persona was more complicated than this. He tried a woman, Emily King, for attempting to take her own life and that of her son. A letter to Scrutton from a friend of the defendant, published in the press after the trial, explains its course: Emily King must have been distracted; and no judge could have been kinder to her than you were. You saw the picture of her awful struggle against poverty so clearly and so humanely. “Because a judge wears a wig and scarlet robes he is none the less a man with the same feelings as you the jury deciding this case”, you told them. I do hope that will always be true of you my lord. You put Mrs King’s case before the jury in such a way that they made a formal recommendation to mercy then you addressed the weak, overwrought woman in the dock and told her “nobody could be anything but convinced she had committed her offence as the natural result of the great pressure of poverty and with the feelings of a mother unable to give her children food”.62

6.4

Commercial judge

Scrutton’s “judicial celebrity” has endured because of his work as a commercial judge, a role for which his background, practice and writing peculiarly equipped him. The American jurist Karl Llewellyn, one of the leading figures in the realist movement, regarded Scrutton as a “matchless commercial lawyer”, “a greater commercial judge than Mansfield”, “the greatest English-speaking commercial judge of a century”, who had “enriched legal literature by twenty years of opinions which, in substance and style, make the best reading on commercial law this century has seen”.63 59 61 62

63

60 The Times, 4 December 1912. The Times, 19 November 1913. The Times, 26 February 1914. The sentence was upheld. Undated cutting, Scrutton Papers. The incident is also referred to in The Times obituary, 21 August 1934. Karl Llewellyn, “On warranty of quality, and society” (1936) 36 Columbia Law Review 699 (“Warranty I”). For Llewellyn’s appreciation of Scrutton see also “On warranty of quality, and society: II” (1937) 37 Columbia Law Review 341 (“Warranty II”); “Through

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However, Llewellyn’s appreciation of Scrutton is principally derived from Scrutton’s work as an appellate judge, and will be considered in that context. The commercial legacy from Scrutton’s period as a puisne judge is comparatively limited, and somewhat disappointing. Llewellyn suggests that the reason for this is that Scrutton felt particularly hidebound by the doctrine of precedent. In Llewellyn’s view, “an American judge of his power would have been less content to stay within the bounds marked out by statute and precedent”.64 Scrutton, by contrast, he thought “indulged in ‘judicial self-limitation’ when Mansfield would have rolled up his sleeves and gone to work”, and “felt that law to bind him with a singular bindingness and strove all his strength to fight down any urge to alter it, unless he saw a loophole”.65 There is much in this assessment. Time and again at first instance we see Scrutton expressing criticism or doubt as to a particular legal outcome, but feeling compelled to reach it. In Ingram & Royles Ltd v. Services Maritimes du Treport,66 when construing an exception clause in a bill of lading, he followed a decision of the Court of Appeal, stating, “I am bound by this decision, and it is immaterial whether I should have come to the same conclusion”. In London County Council v. Allen,67 he found the result of the case “very regrettable” but “after a careful review of the authorities, I am forced to the view that the later decisions of this Court compel me so to hold”. In Forbes v. Samuel,68 he stated that “if the question were free of authority I should feel great difficulty”, but was “relieved from these considerations by the authorities I have cited, which bind me as a judge of first instance”.69 This deference extended to decisions of judges of co-ordinate jurisdiction, even those of no antiquity. In Deyes v. Wood,70 he noted that “left to myself, I should have had some doubts” as to the conclusions which his fellow judges Cozens-Hardy and Warrington JJ had drawn from

64 67 69

70

title to contract and a bit beyond” (1938) 15 New York University Law Quarterly Review 160 (“Title”); The Common Law Tradition (1960) (“Common Law Tradition”), a book dedicated to a number of commercial judges, including Scrutton. 65 66 Warranty I, p. 708. Title, pp. 186–7. [1913] 1 K.B. 538. 68 [1914] 3 K.B. 642. [1913] 3 K.B. 706. See Velaquez v. CIR, [1914] 2 K.B. 404, for another example, in which he virtually drafted a notice of appeal against his own judgment: “It is immaterial what my own view would have been without the Court of Appeal decisions, but it is obvious that if the matter is reconsidered by a tribunal that can deal with it, the views of Lord Lindley in the Muller Case, the probate practice as to foreign book debts, as stated by the Privy Council in Commissioner of Stamps v. Hope and Rex v. Lovitt, and the views expressed by Mr. Dicey in his work on the Conflict of Laws, 2nd ed., at pp. 232, 309, 310, and 313, will demand the most careful attention”. [1911] 1 K.B. 806.

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an earlier case, but “I feel bound to follow, so far as they apply, these decisions, arrived at by judges of co-ordinate jurisdiction specially familiar with the subject-matter”. In Landauer v. Craven and Speeding 71 his attention was called to an unreported decision of Hamilton J on the question whether a bill of lading tendered under a Cost Insurance and Freight (CIF) contract had to be a through bill, stating, “if on this point I had only to deal with law I should of course follow this decision, leaving it to be examined, if the parties desired, in the Court of Appeal; but I should very respectfully express my doubts of its correctness”, although in the event he was able to distinguish the decision on its facts. He followed this course not, as with some judges, by reason of lack of confidence in his own abilities, with refuge in the decisions of others constituting the better part of valour, but from an (at times) misplaced sense of the importance of the judicial hierarchy and his own place within it.72 There was a similar reticence, this time founded on more orthodox constitutional principles, when it came to the interpretation of statutes. For example, in Board of Trade v. Anglo-American Oil Co.,73 he was of the opinion that the outcome of the Merchant Shipping Act for which the defendant was contending was “reasonable”, but “I am sitting as a judge, not a legislator”, and he could not find any words which justified him in restricting the statute to achieve that outcome. In Webster v. Terry,74 he dissented in the Divisional Court on an issue of statutory construction, stating, “the case raises a short question of construction, and we are in no way concerned with what ought or ought not to be the law with regard to motor cycles”. While Scrutton’s reputation as a commercial lawyer rests on his judgments in the Court of Appeal, there are some Scrutton firstinstance judgments in commercial cases of lasting significance. In the insurance context, the decisions in Glasgow Assurance Corporation v. William Symondson75 and Cantiere Meccanico Brindisino v. Janson and

71 72

73 75

[1914] 2 K.B. 94. In a similar vein see Lazarus v. Cairn Line of Steamships Ltd, (1911–12) 17 Com. Cas. 107, in which (when decisions on other forms of contract were cited to him), he noted that “as counsel have advised their clients on the faith of reported decisions of the Court of Appeal and House of Lords, a Judge of first instance can hardly relieve himself of the duty of seeing whether the view he takes of a particular contract is consistent or inconsistent with the view that the superior tribunals have taken of similar contracts”. 74 [1911] 2 K.B. 225. [1914] 1 K.B. 51. (1910–11) 16 Com. Cas. 109, in which the suggestion that the assured was under a duty to disclose the fact that another underwriter had rejected the risk was dismissed with the

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Others76 on the duty of disclosure in reinsurance and marine insurance contracts have proved formative. In Clayton v. Le Roy77 he undertook an impressive historical analysis of the law of market overt, when finding that the City Auction Rooms did not satisfy the description: a review which explained the “old high German” origins of the word “shop”, and traced the concept of “market overt” through the law merchant, early German law, Bracton, the St Ives Fair Roll, Coke’s Reports and Blackstone’s Commentaries. The law of stoppage in transit received a similar treatment in Booth Steamship v. Cargo Fleet Iron Co.78 Scrutton’s judgment at first instance in Lloyd v. Grace Smith,79 finding the solicitors’ firm vicariously responsible for the conduct of a dishonest clerk, did not find favour in the Court of Appeal – Vaughan Williams LJ could “not see how the judgment of Scrutton J. can possibly be supported” – but was upheld in the House of Lords, Lord Halsbury saying that “but for what appears to me a singular misapprehension, I should not have thought it necessary to add anything to Scrutton J.’s careful and very accurate judgment”, while Lord Shaw thought that “the action should be disposed of in the same sense as in the judgment of Scrutton J., whose treatment, I desire to add, of the whole case both in law and in fact appears to me to have been correct, and with whose opinion I also respectfully agree”. In Embiricos v. Sydney Reid,80 as well as rejecting a contention that a contract of affreightment could not be frustrated while cargo was still on board the vessel – “this . . . was a favourite argument of the late Walton J.” – Scrutton delivered the following oft-cited passage: Commercial men must not be asked to wait till the end of a long delay to find out from what in fact happens whether they are bound by a contract or not; they must be entitled to act on reasonable commercial probabilities at the time when they are called upon to make up their minds.

76 77

78

79

pithy observation that “the ordinary business man would I am sure think it material to know that the underwriter wanting to reinsure thought so badly of the risk that he was ready to pay a higher premium than he received to get rid of it; but no one has ever suggested that this needs to be disclosed”. [1912] 2 K.B. 112; upheld at [1912] 3 K.B. 452. [1911] 2 K.B. 1031. The trial involved “a view” of the auction rooms. He experienced the fate of many a first-instance judge who engages in a tour de force of legal learning, finding himself overturned in the Court of Appeal, who decided the case on a narrow technical issue and did not find it necessary to revisit the point of law. [1916] 2 K.B. 570, sitting as an additional judge to clear arrears after his appointment to the Court of Appeal. 80 [1911] 2 K.B. 489; [1912] A.C. 716. [1914] 3 K.B. 45.

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And in Arnhold Karberg & Co. v. Blythe Green,81 he undertook a masterly analysis of the effects of the outbreak of war on a CIF contract, explaining that “the key to many of the difficulties arising in c.i.f. contracts is to keep firmly in mind the cardinal distinction that a c.i.f. sale is not a sale of goods, but a sale of documents relating to goods”. This analytical key, although disapproved of in the Court of Appeal where it was treated as an abstract proposition of law,82 has unlocked numerous difficulties with the CIF contract thereafter.

6.5

The Revenue Paper

Another task which befell the King’s Bench judge was sitting on taxation appeals – hearing “the Revenue Paper”, as it was known. This involved appeals against decisions of the relevant revenue commissioner on issues of law – usually the construction of long and highly technical statutes – and Scrutton’s organising mind was admirably suited to it. The majority of his decisions are of little interest: cases concerning liability for stamp duty under the Stamp Act 1891,83 or for income tax under the Income Tax Acts.84 However, Scrutton was also involved in a series of cases arising out of the most controversial fiscal legislation yet passed – the Finance (1909– 10) Act 1910, which put Lloyd George’s “People’s Budget” into effect. The story of the passing of that Act has never been better told than by George Dangerfield, in his classic study of England in the period 1909 to 1914, The Strange Death of Liberal England.85 The Liberal Government’s social programme of old-age pensions and national unemployment insurance, and the attempt to catch up and keep pace with the construction of dreadnought battleships by imperial Germany, left Asquith’s government, and his Chancellor of the Exchequer, David Lloyd George, seeking new sources of revenue when preparing the budget for 1909. Lloyd George decided to turn the fiscal challenge into 81 83

84

85

82 [1915] 2 K.B. 379. [1916] 1 K.B. 495. See e.g. Underground Electric Railways Company of London Ltd and Glynn Mills Currie & Co. v. Commissioners of Inland Revenue, [1914] 1 K.B. 210; Maples v. Commissioners of Inland Revenue, [1914] 3 K.B. 303; and Velaquez Ltd v. Commissioners of Inland Revenue, [1914] 2 K.B. 404. E.g. Humber Conservancy Board v. Bater, [1914] 3 K.B. 449; Smith v. Incorporated Council of Law Reporting for England and Wales, [1914] 3 K.B. 674; and General Hydraulic Power Co. Ltd v. Hancock, [1914] 2 K.B. 1. George Dangerfield, The Strange Death of Liberal England (1935), Chapter 2; and Brian Short, Land and Society in Edwardian Britain (1997) (“Short”) for the following.

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a political opportunity, and brought forward a budget “which aimed a rude blow at the rich, and more especially at the Lords”. There was a “supertax” on incomes of over £5,000: although the epithet “super” now seems somewhat overblown for a tax of sixpence in a pound of 240 pence, imposed on income in excess of £3,000 a year for those earning in excess of £5,000 a year. There were increased death duties. And the budget also brought forward new taxes: a 20 per cent tax on the increase in the value of land from 1909 onwards, a tax of half a penny in the pound on the capital value of unimproved land on which building was held back for speculative purposes, a tax on mineral reserves on land and a duty of 10 per cent on the benefit a lessor received on the termination of a lease. John Burns, a member of the Cabinet, said that the Cabinet deliberated upon Lloyd George’s bill “like nineteen rag pickers round a ’eap of muck”. If this was the reaction from Lloyd George’s Liberal colleagues, that of the Conservative majority in the House of Lords – at that time an all-hereditary chamber with an absolute veto on legislation – is not difficult to imagine. However, by a long-established constitutional convention, the House of Lords could not vote down a money bill, and refuse the government “supply”. In the case of “the People’s Budget”, the House of Lords proved unable to abide by this self-denying ordinance – goaded in part, one suspects, by a speech given by Lloyd George in Scrutton’s old stamping ground of Limehouse in the East End on 30 July 1909 which presented the bill and its aims through the violent rhetoric of class warfare and land nationalisation. The bill passed the House of Commons after 554 divisions and 640 hours of Parliamentary discussion, but was rejected in the House of Lords by 300 votes to 75. Two-thirds of those voting against the bill in the House of Lords owned 5,000 or more acres of land,86 sending “Liberal England” into a constitutional crisis. A general election followed, in which the Liberal Government was returned, albeit in numbers which left them dependent on the support of Irish Nationalist MPs for a majority. The returned government managed to pass the Finance Act in 1910 – the House of Lords barely quorate by way of protest – and, after rather more difficulty and a further general election, the Parliament Act 1911, which turned the House of Lords’ power to veto legislation into a power to delay it.

86

Short, p. 25.

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The battle by Conservative and landed interests against the budget did not cease when the bill received the royal assent.87 Among a number of protest groups established to represent landed interests was the Land Defence League, founded by Charles Newton Robinson. It changed its name to the Land Union in April 1910, its role “to combine all interested in land industry for their own defence”. It was heavily backed by the Dukes of Bedford, Portland and Westminster, and published a periodical – Land Union – and a handbook giving advice to landowners on how to return the forms and to obtain the most fiscally advantageous valuation.88 Ostensibly non-political, both its adherents and its aims made it effectively a Tory organisation which “espoused the unbending tenets of unreformed Conservatism”.89 Lloyd George described the union as working “day and night in every part of the country to find faults with the valuation, stirring up suspicions; working up complaints; and picking holes”.90 A leading Land Union spokesman was the Conservative MP Ernest Pretyman – “a Suffolk and Lincolnshire landowner and a former Master of the Brocklesbury hounds”91 – who raised numerous technical issues of valuation in Parliament and also co-ordinated over fifty legal challenges to the Act through the courts as a member of the Land Union’s legal committee, chaired by Edmund Royds. These included the case of Lumsden v. Commissioners of Inland Revenue,92 which went to the House of Lords (unsuccessfully for the Land Union) and subjected speculative builders’ profits to incremental value duty. And they also included an important test case concerning the basis of valuation of agricultural land. That test case was sponsored by the Land Union on behalf of Lady Elizabeth Smyth, owner of a 385-acre farm known as the “Model Farm” in Norton Malreward, in Somerset. The point at issue was a highly technical one concerning the basis on which the agricultural land should be valued, and whether it should or should not take into account the tenant’s grassland, manurings, tillage and ordinary farming operations. Technical though the case was, it had been “brought forward to obtain answers to questions of great interest . . . of great importance to landowners”,93 and the press reported proceedings 87

88 89 90 93

For the following see Short; The Land Union’s Handbook on Provisional Values (1910) (“Land Union Handbook”); and Richard and Christine Grover, “The origins of the British fiscal cadastre”, FIG Congress, 2010. Land Union’s Handbook. Matthew Fforde, Conservatism and Collectivism, 1886–1914 (1990), p. 110 (“Fforde”). 91 92 Daily News, 21 June 1912. Fforde, p. 110. [1914] A.C. 77. The Times, 2 March 1914.

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before the referee, J. Gould Drew, who sat in the Surveyors’ Institution.94 At around the same time, another test case – again sponsored by the Land Union – was taking place to consider both this issue and the question whether sporting rights should be taken into account in assessing the value of land (something which would increase the value of the land at the starting point and therefore reduce the taxable “gain” if the land was later sold for development): the so-called Chell’s Farm case.95 The appeals from the decisions were heard by Scrutton. There is nothing to suggest that this outcome was engineered, but he would have seemed an attractive tribunal for the Government, in these very political cases arising out of a very political statute. Scrutton had been a Liberal candidate and had been a close associate of the Liberal prime minister, Asquith. He owed his judicial appointment to Loreburn, the Liberal Lord Chancellor when the Finance Act was passed, and had worked closely with his successor, Haldane, in a Liberal political context. He had been, moreover, a Liberal candidate who had stood in the 1886 election on a platform of “lessening the influence of the hereditary element and removing its character as a class assembly” and of reform of land law, “believing that the ownership of the land of a country by a large number of its citizens is . . . essential to its stability and prosperity”.96 In the same year, Scrutton had published a book which criticised the way in which statutes on English land law had been “perverted and thwarted in the interests of a class”,97 and the frequent devolution of aristocratic estates to an heir “devoid of all sense of his duty as a landlord”. In a book published the following year he had rejected a view that the prohibition of enclosures “would confiscate rights of profit and deprive lords of manors of their legal rights to make their profits by enclosures” because land stood on a different footing to other property rights being, “essential to the existence of the English people”. Scrutton had not ceased to be a Liberal on his appointment to the Bench, or indeed at any point thereafter.98 Judgment in both cases was delivered on 28 February 1914. In the Norton Malreward case, Scrutton found against the Revenue on the issue of how the valuation of agricultural land should have been conducted: a 94

95

96 98

Smyth v. Commissioners of Inland Revenue (“the Norton Malreward case”), The Times, 16, 18, 27 and 28 May and 3 July 1913. Hunter v. Commissioners of Inland Revenue (“the Chell’s Farm case”), The Times, 21 and 29 May 1913. 97 See Chapter 3. Chapter 5. Private information, Scrutton Papers, corroborated to some extent at Mill Hill in 1923 for those prepared to read between the lines: MHM, July 1923.

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decision which had the effect that “the whole basis upon which the Inland Revenue had hitherto valued agricultural land was invalid”,99 and obliged the Revenue, if they wished to implement the Act in relation to agricultural land, “to ascertain the value of all growing crops, tillages, tenant right of feeding stuffs, and manure as at 30 April 1909 after a space of nearly 5 years”.100 On the Chell’s Farm case, he found for the Revenue on the (much less significant) issue that the 1909 base value should not include sporting rights.101 The significance of the cases was not lost on The Times, which proclaimed in an editorial, The effect of the judgments delivered on Saturday by Mr Justice Scrutton in the Court of King’s Bench is to upset all the valuations of agricultural land and of undeveloped land used for agricultural purposes hitherto made under the Finance Act of 1910 . . . It is hardly possible to overrate the economic and political importance of these decisions by the High Court . . .It is frankly impossible to see what the effect will be if the judgment stands as it probably will.102

The Conservative Party was delighted, “the upsetting of all the valuations of agricultural land delivered by Mr Justice Scrutton on Saturday” being “one of the chief topics of discussion among members of the House of Commons”.103 The Government was asked whether an appeal would be brought but was in a state of disarray, giving conflicting answers in response within the space of thirty minutes.104 Holding answers were given over the next few weeks.105 Eventually an appeal was entered,106 but it was never pursued. Shortly after the outbreak of the war, the appeal was taken out of the appeals list indefinitely, with liberty to restore.107 A Revenue Bill intended to address the position was dropped amid a frenzied summer in which the Ulster Crisis soon gave way to a world war.108 Valuations were suspended for the war, with the relevant staff being transferred to more pressing duties. In 1915, the appeal was still floating, pending successive adjournments, and in the interim the Government accepted that agricultural land fell into two categories: “that 99 101

102 104 105 106 107

100 Short, p. 23. Short, p. 87. For discussion of these and other decisions concerning the land duties see Edward Cox Sinclair and T. Hynes, “Further problems in land values” (1913–14) 39 Law Magazine & Rev. Quarterly 5th series 330. 103 The Times, 3 March 1914. The Times, 3 March 1914. The Times, 5 March 1914. The Times, 12 March 1914; HC Deb., Vol. 60, 25 March 1914, cols. 357–8. HC Deb., Vol. 71, 21 April 1914, col. 739. 108 NAI/IR/40/2502 for the Chell’s Farm appeal. Short, p. 49.

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which has never been valued at all, and secondly, that which has been valued and the valuation of which has been entirely upset by the decision of Mr. Justice Scrutton”.109 By February 1916, the Land Union were proclaiming that the Undeveloped Land Duty was “a dead letter”,110 and it was. A select committee was appointed by Lloyd George – now prime minister of a Conservative-dominated Coalition rather than Liberal Chancellor of the Exchequer – which was chaired by Ernest Pretyman. It recommended the repeal of the “People’s Budget” land taxes,111 and this was effected by Section 57 of the Finance Act 1920. A settlement with the Land Union on the outstanding issues of costs led to the final resolution of the appeal against Scrutton’s judgment on 18 February 1921, by which point the passions stirred by the “People’s Budget” had long since been lost amidst the much wider tumult. Scrutton’s achievement in the Norton Malreward case lay not in the dissection of a complex and badly drafted statute. It lay in his ability, in the age of a highly politicised judiciary, on a highly political case, at a time when the enmity between the two leading political parties had descended to a violence not seen before or since,112 to put aside his own strong allegiance to one of those tribes and decide the case by reference to wholly judicial criteria. It has been suggested above that Scrutton’s strongly held convictions on judicial hierarchy made him a less effective puisne commercial judge than his later reputation might suggest. However, similarly strongly held convictions on the judicial role meant that he practised judicial independence when so many of his distinguished contemporaries merely preached it. The most striking feature of his many decisions on the Finance Act was their “Revenue-neutrality”. In addition to the Norton Malreward and Chell’s cases, he held in favour of the Duke of Argyll on the liability of a state pension to Princess Louise for supertax.113 He heard another test case on the liability to development tax of the land surrounding Devonshire House, Piccadilly, London home of the Duke of Devonshire. In the course of that case he carried out a “site view”, and bolstered his judgment by a citation from John Evelyn’s diary of 12 June 1864 which he found by his

109 111 112

113

110 HC Deb., Vol. 72, 29 June 1915, cols. 1703–31. Short, p. 88. Report of the Select Committee on Land Values, 1920 Cmd. 556 PP XIX. The uniquely charged political atmosphere of the times emerges very clearly in Dangerfield’s Strange Death, p. 88: England was in “a dangerous state of hysteria . . . The whole mood of that pre-war England was sudden, sombre and violent”. Duke of Argyll v. Commissioners of Inland Revenue, (1913) 109 L.T. 893.

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own researches. He overturned the referee on various points, some in the Revenue’s favour and most in the duke’s.114 Finally, he held in the Revenue’s favour on an issue concerning undeveloped land duty on leased land, only to be overturned on appeal.115

6.6 The injudicious judge The subject of Scrutton’s judicial temperament can no longer be deferred. From an early stage as a judge, there were occasions when irritation with the slow progress of an application or case, a perceived lack of preparation or skill on the part of solicitors or counsel, or even the behaviour of a witness, would lead him to make unfortunate remarks. In October 1910, for example, when a witness from a bank attended to produce documents in a trial of a solicitor for embezzlement, he asked at the end of his evidence whether “all the employees of your bank conduct their business with the intelligence you are showing . . . I am sorry for the bank if that is so”.116 Often these were the familiar gripes of judges at the inclusion of unnecessary documents in bundles or reference to unnecessary documents in court. In one case, for example, he complained about “the enormous bundle of correspondence prepared for the judge and counsel, only four or five letters in which were referred to”, and he directed an enquiry as to who was responsible to ensure the costs were borne by the party to blame.117 The transfer of a Welsh case from the Swansea assizes to London for the convenience of the defendant was condemned as “a ridiculous waste of the money of the lay clients”.118 Leading counsel who thought that reading through correspondence was a useful way to ease himself into the case would find himself brought to a sudden halt and told to focus on the points that mattered: “now that I have left the Commercial Court, you will be able to read all the correspondence”, he replied to one silk who had written congratulating him on his appointment to the Court of Appeal.119 The speed with which he cut through material surprised and occasionally embarrassed those appearing before him.120 Even in these areas 114 115

116 118 119 120

Commissioners of Inland Revenue v. Duke of Devonshire, [1914] 2 K.B. 627. Commissioners of Inland Revenue v. Southend-on-Sea Estates Co. Ltd, [1914] 1 K.B. 515; [1915] A.C. 428. 117 The Times, 21 October 1910. Nelson v. James Nelson & Sons, [1913] 2 K.B. 471. Jones v. Consolidated Anthracite Collieries Ltd, [1916] 1 K.B. 123. Solicitors’ Journal, 25 August 1934, at p. 34. Lord Sankey, The Times, 3 October 1934.

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of legitimate complaint, there was an acerbity of tone which did not make him popular with the Bar. When sitting at the assizes in Birmingham, his trial was delayed because one of the leading counsel was tied up in court, and a very public rebuke was delivered: “Your junior ought to have been here. It is not treating the Court with respect. Sir Edward Carson takes only one brief at a time. It is not a bad rule”, he told Mr Vachell KC. Perhaps wrongly imagining he might have the last word, Vachell responded, “I wish I had some of Sir Edward’s briefs”, to be told, “Perhaps that is why he gets the briefs; he attends to them”.121 While it is difficult to be too sympathetic toward leading counsel who find themselves on the wrong end of a judge’s temper, there are other contexts in which the behaviour seems somewhat bullying, such as the member of the public fined five pounds for saying “Hear! Hear!” in Scrutton’s court, prompting Sir Charles Darling to observe of a similar incident in his court, “It is a good thing you are not in my brother Scrutton’s court”.122 Matters came to a head in the Commercial Court, where Scrutton had particularly high expectations of the levels of co-operation and efficiency which the professionals acting in the court should achieve,123 and he found it difficult to hide his displeasure when these expectations were not fulfilled. In April 1913, in the course of the summons list in the Commercial Court, he appears to have expressed highly adverse criticisms about the preparation of cases by solicitors in the court, suggesting that they were “wanting in the proper performance of the duties owed both to the courts and their clients”.124 No report of this event appeared in any of the legal periodicals, although there are occasional hints of Scrutton anger: for example, a report of Scrutton calling on a managing agent of a firm who happened to be in his court to account for a failure to reply to correspondence, telling all there “that the list depended on the co-operation of solicitors, and in future he should have to deal severely with neglect to answer the official letters”.125 121 123

124

125

122 The Times, 8 March 1913. The Times, 28 March 1914. T.E. Scrutton, “The work of the commercial court” (1921) 1 C.L.J. 6, at p. 6: the court “requires great good faith in the solicitors. You want counsel and solicitors who are working with the judge to be sure that the dispute between the parties shall be fairly tried”. This quotation is taken from Judy Slinn’s Clifford Chance: Its Origins and Development (1993), p. 79, coming from a memorandum presented by Coward Chance and other London solicitors to Scrutton later that year. This quotation appears to have come from an earlier unpublished firm history, and it has not proved possible to trace its source. (1913) 135 Law Times, p. 166.

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Mackinnon suggested that Scrutton “indulged in petulant rudeness to counsel and to solicitors’ clerks on summonses”.126 Judicial temper is far from being an unknown phenomenon. What was remarkable about Scrutton’s outbursts was the profession’s response to them.127 Cecil Coward, a New Zealand-born solicitor with the firm of Coward & Hawksley, Sons & Chance, co-ordinated a response from the leading commercial firms who appeared regularly in the court. He prepared a memorandum of protest. Scrutton’s comments, it declared, could not be seen “otherwise than as a distinct and general accusation against the solicitors practising in the court of making unnecessary applications and copying unnecessary documents for profit”. Coward instructed another New Zealand-born lawyer, the barrister Alfred Chaytor,128 to appear before Scrutton presenting the terms of the memorandum and articulating the solicitors’ complaints. First-hand accounts of this remarkable occasion have proved impossible to come by. None of the legal journals of the day referred to it. Even when Chaytor died, in 1931, the incident was reported in the coyest of terms: A distinguished Judge (who was afterwards justly promoted) had made himself unpopular by reason of his overbearing treatment of solicitors and their clerks when appearing before him in Chambers and Chaytor was put forward by some of them to make a protest on their behalf.129

However, Mackinnon suggests that “Chaytor discharged his task with firmness, Scrutton listened without comment, but proved his contrition by his subsequent conduct”. Chaytor’s obituary also suggests that “the action caused no resentment and was productive of better relations in the future”.130 Mackinnon’s version of the incident was, apparently, “a good deal less colourful” than that which Lord Chorley QC heard in the Temple Common Room when a student, according to which a protest 126 127

128

129 130

Oxford Dictionary of National Biography entry. The Times, 21 August 1934, suggested that the only other occasion of a protest by the profession in court against the manners of a judge was against Sir John Leech, Master of the Rolls from 1827 to 1834. Chaytor had acted as pupil to Cecil Coward in 1893, at the firm of Hollas, Sons, Coward & Hawksley, a predecessor firm of Coward Chance. Chaytor, p. 251. The Times, 14 July 1931. Coward was a member of the Royal Commission on Delay in the King’s Bench Division, before which Scrutton gave evidence in December 1913, and their paths crossed occasionally thereafter; e.g. Coward hosted a reception for Scrutton at the Law Society School of Law. “The reception” (1928) 2 Bell Yard J.L. Society School of Law 30. There is no suggestion of any ill feeling on either occasion.

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was also made to the Lord Chancellor, Lord Haldane, who admonished Scrutton.131 The fact that Chaytor took silk the following year suggests that the senior judges did not view his and Coward’s conduct in critical terms. By contrast, Scrutton’s behaviour is said to have been a factor in Sir John Eldon Bankes’s promotion over his head to the Court of Appeal in January 1915.132 It was to be twenty-one months before another appointment was made. When these issues of temperament featured in Scrutton’s obituaries, they caused considerable upset to his family. Janet Scrutton told Lord Hansworth, the Master of the Rolls, that Lady Scrutton had been “a good deal disturbed by some of the press emphasis . . . how anyone could call him . . . petulant we simply cannot imagine”, stating that “if ever there was a man with a perfectly controlled temper it was father”.133 A note by one of the members of his family, referring to the obituary in The Times, states that “we have been told emphatically by men who practised before T.E.S. and who have lately attained high judicial office that the picture drawn in it of ‘bad judicial manners’ is exaggerated and unfair”.134 It may well have been. Scrutton’s bad temper in court was episodic rather than continuous, and there were outbreaks of judicial humour as well as of judicial temper.135 Lord Wright analysed their cause and described their frequency in the following terms:136 There were in his nature some elements of Nonconformity which, combined with his high sense of duty and rugged and robust temperament, perhaps also with some consciousness of his own worth, produced at times, though rarely, asperities in his public utterances. 131 132

133 134 135

136

Lord Chorley QC, review of Scrutton on Charterparties, 18th edn (1975) 38 M.L.R. 707. The Times, 21 August 1934. For Bankes’s appointment see NA/LCO 2/2175, letter of 29 January 1915. Letter of 27 August 1934, Hanworth Papers, Bodleian Library, MS. Eng. Hist. c.950. Scrutton Papers. For example, in Hunt v. Richardson, [1916] 1 K.B. 446, a case about watered-down milk, counsel referred to the various straining processes used in dairies. Sir Charles Darling, regarded as a noted judicial wit, quipped, “But there are some things that are not to be strained at all – the quality of mercy for instance”, to be capped by Scrutton’s observation that “I don’t know that mercy has much to do with this matter: this is a case of too much of the gentle dew from heaven” (The Times, 21 August 1934). When a leading railway lawyer, Mr Bruce Thomas, took silk, Scrutton asked him, “Mr Thomas, do you or any of your numerous railway companies move?” (Solicitors’ Journal 25 August 1934, at p. 34). For those unimpressed, the dangers in exemplifying judicial wit should be allowed for: its impact depends to a significant degree on its unlikely source and setting, rather than its inherent comedic quality. The Times, 1 September 1934.

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By common consent they were much diminished (but not eliminated) after his elevation to the Court of Appeal, and they involved some discrimination in their targets. Inexperienced barristers generally received a sympathetic response. Scrutton’s advice to the members of the Cambridge University Law Society in 1920 was: Interruptions and contradictions by the Bench become more frequent according to the eminence of the counsel addressing them. But to the young man in a very clean wig (and some of them look very white indeed) and nervous in his first case (and some of them evidently suffer tortures), both the Judge and the senior members of the Bar seek to offer nothing but help.

He recalled two letters he received after sitting as commissioner of the assize from “young men who held their first briefs before me as Commissioner and they wished to thank me for the help I had given them”.137 The Manchester Guardian noted that “no poor litigant appearing to plead his own cause in person ever failed to find in Scrutton a genial, patient and helpful judge”.138 And there was a clear distinction between the judicial and private personas: Wright also referred to “the fundamental kindness and generosity of spirit experienced by all who came in contact with him”,139 and his Mill Hill obituarist – probably Nathan Micklem – recalled that off the Bench “he was completely human and approachable, with a certain bluntness in his talk and a touch of sarcasm in his manner but altogether kindly and good-natured”.140 It is seldom a comfort to an advocate on the wrong end of the judicial temper to be told that the judge is kindness personified to his children or delightful company at dinner, and judicial bad temper is to be deprecated. But how far it should matter, and whether it should ever impact upon a judicial career (as it appears to have done for Scrutton), are very different questions.

6.7 A judicial miscellany It is difficult to capture the varied nature of Scrutton’s judicial diet, which ranged far beyond the commercial, criminal and fiscal, and almost certainly not worth the attempt. However, there are occasional glimpses of his judicial performance, persona or perspective in other areas of the law which 137 138 140

T.E. Scrutton, “The work of the commercial court” (1921) 1 C.L.J. 6, at p. 20. 139 Manchester Guardian, 21 August 1934. The Times, 1 September 1934. MHM, November 1934.

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merit brief mention. One noteworthy feature of his non-commercial work is the frequency with which his judgments were overturned by the Court of Appeal.141 His known lack of familiarity with these areas of work from his practice or publication will undoubtedly have been a factor: both increasing the risk of error and, perhaps equally importantly, increasing the readiness of an appellate court to approach a judgment looking for error. Scrutton heard a number of libel cases,142 and had – as might be expected – some concern about the level of damages awarded. When a guest of the Newspaper Society, he made his sympathies clear: “no one knew better than he the anxious care taken in newspaper offices to be accurate” and that “he wishes to say, and to say it carefully and cautiously that there were juries as well as judges in libel cases, and it was the juries who gave the verdicts”.143 More exceptionally, he was involved in a family dispute in which he awarded a husband custody of two children, notwithstanding the husband’s intention to bring the children up Roman Catholics, to the horror of their Nonconformist mother.144 The case involved an early crossing with Hubert McCardie, himself of Irish Protestant background, with whom Scrutton was to have a major falling out in 1932.145 Despite, or perhaps because of, his own family’s Nonconformity, Scrutton had no religious beliefs. 141

142

143 144

Reverses included Wilkes v. Spooner, [1911] 2 K.B. 473 (restrictive covenant); Hirachand Punamchand v. Temple, [1911] 2 K.B. 330 (accord and satisfaction); Deighton v. Cockle, [1912] 1 K.B. 26 (procedural ruling); Fry v. Smellie, [1912] 3 K.B. 282 (seller’s right to retain indicia of title); North-Western Salt v. Elektrolytic Alkali Company, [1913] 3 K.B. 422 (restraint of trade) in which he had the satisfaction of being restored in the House of Lords: [1914] A.C. 461; Doleman & Sons v. Ossett Corporation, [1912] 3 K.B. 257 (effect of arbitration clause); Latham v. R. Johnson Nephew Ltd, [1913] 1 K.B. 398 (child trespassers injured); Reversion Fund and Insurance Co. v. Maison Cosway Ltd, [1913] 1 K.B. 364 (recovery of money paid under unauthorised loan); Ingram & Royles Ltd v. Services Maritimes du Treport, [1913] 1 K.B. 538 (somewhat surprisingly on the effect of bill-of-lading exclusions); Commissioners of Inland Revenue v. Southend on Sea Estates Co. Ltd, [1914] 1 K.B. 515; Commissioners of Inland Revenue v. Hallyar, [1914] 1 K.B. 528 (both Finance Act cases); Morgan v. Hart, [1914] 2 K.B. 183 (appointment of receiver); Hughes v. Liverpool Victoria Legal Friendly Society, [1916] 2 K.B. 482 (recovery of premium). E.g. Pritchard v. Health and Strength Ltd, The Times, 16 December 1910; Cowan v. The Era, The Times, 14 January 1911; Homing Pigeon Publishing Co. v. The Racing Pigeon Publishing Co., The Times, 20 March 1913; Cardew v. Lotinga, The Times, 13 July 1913; Sueter v. Willis, The Times, 27 March 1914; Field v. John Bull, The Times, 14 June 1914; Dillon v. Charing Cross Cinematographic Theatre, The Times, 15 April 1915. The Times, 11 May 1911. 145 Re Brooker, The Times, 27 and 28 July 1916. See Chapter 9.

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Mary Midgley described him as “correct about religion in public”, but a “proper Victorian rationalist” at heart.146 One final decision which proved a foretaste of things to come was In re Boaler,147 a case in which the subject of a vexatious-litigant order sought to present a bill of indictment against a company for its failure to observe company law, to be met with the contention that the order prevented him from initiating criminal as well as civil proceedings without the leave of the High Court. Scrutton’s judgment was characteristic in two respects. First, his obvious lack of sympathy with the plaintiff, whom he described as “much interested in the due observance of the company laws by others”, and displaying “peculiar manifestations of detective energy”. Second, his decision, notwithstanding that lack of sympathy, to find in Boaler’s favour because of the constitutional principle at stake. Noting that “one of the valuable rights of every subject of the King is to appeal to the King in his Courts”, he held that Parliament could only deprive a subject of that right by clear language which would be interpreted according to “its least onerous meaning”. In the context under consideration, that involved construing the power to limit the right to commence “legal proceedings” to civil proceedings. Eventually (but not, it must be, said, immediately) these were to prove important qualities when dealing with litigants who had rather more unsympathetic qualities than a propensity to commence unnecessary litigation, and when the constitutional right in issue was one of even greater importance than that of access to the courts.

6.8 Law on the links Scrutton’s judicial appointment did not curtail his golfing activities. The family descents on Royal Ashdown Forest continued, as did golfing summer holidays at Sheringham,148 and his participation in the Bar tournament.149 The pinnacle of his golfing success came at the Bar tournament at Littlestone, in the hot and now elegiac summer of 1914, winning the foursomes knock-out trophy.150 In 1913, during the Bar 146 148

149

150

147 Midgley, p. 46; private information. [1915] 1 K.B. 21. For appearances, with varying degrees of success, by Scruttons in Great Yarmouth Golf Club tournaments see The Times, 26 and 27 August 1910, 26 and 28 August 1911 and 26 August 1912. For reports see The Times, 28 June 1910 (Littlestone), 9 June 1911 (Prince’s Club Sandwich), 25 May 1912 (Royal Cinque Ports Club, Deal), 3 May 1914 (Deal), 5 June 1914 (Littlestone). Hague, p. 132.

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tournament, he had acquired some celebrity for being the first judge to perform a judicial act on the golf links, granting an injunction in his capacity as vacation judge. A photograph of the occasion was published in the English press – it has since adorned three editions of Charterparties. Scrutton’s version of the story can be found in an Amerian law journal, although it is probably necessary to allow for a margin of self-appreciation in assessing its accuracy: “I remember it”, he said. “The application was made before I made a very excellent shot from the tee and I granted it before I took my put”.151 In addition to dispensing justice on the links, the links would occasionally follow him into court.152 He was one of a divisional court who heard an appeal by a golf club against two golfers who had played on Mitcham Common without abiding by its rules. These included paying fees, booking tee times and using a caddie, the golfers contending that the byelaw imposing the rules was unreasonable and ultra vires.153 The legal challenge was upheld by Phillimore and Hamilton JJ, but Scrutton dissented. It was not quite “Bluebell time in Mitcham”, but his judgment contained an impassioned defence of the golf club and its right to enforce the rules and etiquette of golf. The case was “of general importance” affecting “all golf played on commons, where clubs keep such a course, such as, to take only two examples, Blackheath and Westward Ho!”. Of the suggestion that various club rules were unreasonable, he said, “I protest against a Court who may know much or nothing about golf or caddies being called upon to decide whether this regulation made by the locally elected authority is good or bad”, before launching into a lengthy explanation of the reasons why a caddie is required, drawing (no doubt) on his own experiences of replacing divots and the fact that “less time is . . . spent looking for lost balls”. He was particularly upset by the objection to that part of the byelaw requiring adherence to the rules of golf, on the ground that the person admitted to the golf course must play golf, not some fancy invention of his own which he thinks is an improvement, such as playing two balls as a single player. And he must not interfere with the other matches playing, which is the object that the “Etiquette of Golf” is chiefly directed to.

151 152

153

(1913) 25 Green Bag 38. For a collection of golf case law see Craig Brown, “Golf and the law: more than errant golf balls” (1997–2000) 9 Otago Law Review 373. Conservators of Mitcham Common v. Cox, [1911] 2 K.B. 854.

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Revised rules introduced by the club in response to the decision survived a later challenge.154 Scrutton was involved in another golf case in December 1914, in which the claimant sought a declaration that he had been unlawfully excluded from a competition.155 He noted, It was a tempting matter for conjecture what a future historian of the British Empire would think when years hence he found that on 3 December 1914 in the middle of the greatest war the world had ever seen a Judge of the High Court with the assistance of four counsel had been engaged for three hours in discussing whether a particular gentleman in the second or third round of a golf competition had the right of the choice of the course on which to play or whether he had to toss for it.

He dismissed the claim, but said he hoped that “if the Devonshire Club ever held another competition it would get someone to draw up the rules who knew something about the game of golf”. There were also some judicial golfing escapades in the Court of Appeal which it is convenient to anticipate at this juncture. Scrutton dissented in favour of the leading English amateur golfer of the day, Cyril Tolley, when he complained about the unauthorised use of his name and image in an advertisement, and his view found favour with the House of Lords.156 And in 1929, when fellow golfer Fergus Morton (the future Lord Morton of Henryton) took silk and came to pay his respects, it is said that Lord Justice Scrutton . . . was presiding over a Court of Appeal before which Morton had made the requisite three bows. As Morton was leaving, Scrutton called out “Fore”, by way of friendly greeting; but Morton heard it as “Four”, and returned to make an extra bow.157

6.9

At home

Scrutton’s domestic and social life continued much as before. Musical entertainment featured prominently. He subscribed to the Sir Thomas Beecham Season of Grand Opera and Russian Ballet at Covent Garden,158 was a regular for Gilbert and Sullivan by the D’Oyly Carte 154 155 156 157

158

Harris v. Harrison, (1914) 111 L.T. 534. Lens v. Devonshire Club, Eastbourne (Ltd), The Times, 3 December 1914. Tolley v. Fry, [1931] A.C. 333. Sir Robert Megarry, “Barristers and judges in England today” (1982–3) 51 Fordham Law Review 387, at p. 394. The Times, 20 January 1913.

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and also attended the music hall, an experience he was able to put to good use when trying a claim by someone ejected from a musical hall for constant interruption: I do not know whether I ought to know it judicially but I believe Mr Wilkie Bard at Drury Lane got the entire audience to interrupt him . . . Some of us know things that happen outside this court. It is nonsense to say that music hall singers do not invite the audience to join them in singing.159

There were numerous dinners in his judicial capacity, both in the Inns160 and outside.161 Holidays were spent in Sheringham in Norfolk – always at the Burlington Hotel – and occasionally further afield, Switzerland and Bayreuth in Germany being particular favourites. The nest in Blackheath was emptying. Janet Scrutton returned home after completing her Cambridge degree, and remained there until after her parents’ death. As the eldest (and indeed only) unmarried daughter, she was presented at Court when the Scruttons were invited to a reception at Buckingham Palace.162 However, his other children moved on and moved out. John Scrutton joined the Scrutton shipowning and stevedoring business.163 Alan went into the timber business, and married in 1913.164 Tom followed his father into the law, becoming a tenant at his father’s old chambers, 3 Temple Gardens.165 Mary Midgley explains how this came to pass: He, the eldest and the brightest son, had always been intended to follow his father at the bar and had been duly sent to read law at Cambridge. But his father never talked to him on the subject. Tom supposed that such talk would begin after he took his degree, when he went into his father’s chambers as a pupil. But it did not. He found that he did not get talked to at all, nor, of course, did he get listened to.166

159 160

161

162

163

164 165

Jay v. New Bedford Palace of Varieties, The Times, 30 June 1910. Gray’s Inn (The Times, 20 January 1911), Middle Temple (22 April 1910), Inner Temple (26 January 1911), Middle Temple again (13 May 1912), Gray’s again (15 May 1914). The Law Society (The Times, 8 July 1910), the Newspaper Society (29 April 1911), the Lord Mayor (20 June 1911), the Maccabeans (30 January 1912), at the home of Lord and Lady Shaw of Dunfermline (10 February 1913). The Times, 10 May 1911: Lady Scrutton was presented to the queen by Lady Loreburn, and Janet Scrutton by her mother. 1911 Census, at which point four of the five children were living at home, looked after by five servants. The Times, 21 October 1913, 22 December 1913. 166 The Law List 1912. Midgley, p. 50.

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And there were other, more powerful, influences operating in Tom’s life. He was “suddenly roused by profound, spontaneous, spiritual experiences” and determined to join the Church, and also became “an active Labour Party supporter and internationalist”.167 He finally summoned the courage to tell his father, who was “deeply upset” and “grunted to the effect that ‘all right – if that’s what you want I suppose that you must do it’”. That brought an end to the discussion. Tom was ordained as a deacon at Southwark in September 1913,168 and was an assistant curate at St John’s Church, Walworth, when he got engaged a year later.169 These events have something of the quality of a Greek tragedy – Scrutton, who had reacted against his father’s religious fervour, and struck out on his own career rather than join his father’s business, found his own son rejecting a legal career to follow a religious vocation. Tom Scrutton remained on the board of 3 Temple Gardens until 1953170 – a last symbolic link with his father’s profession which it may have been too painful to cut. Even in his new career, figures from his old one occasionally moved into his orbit: Sir Frank Mackinnon recalls arriving for the assize service at Kingston to be “greeted by the Rector of Kingston, eldest son of Lord Justice Scrutton whom I first knew as a small boy”.171 Scrutton’s youngest child was Hugh. It must have occasioned Scrutton much satisfaction to see Hugh follow him both to Cambridge (King’s rather than Trinity) and to the despatch box at the Cambridge Union. On an April evening in 1914, W.B.W. Durrant of Magdalene spoke on another Union Home Rule motion, denouncing Asquith’s handling of the Curragh mutiny when units of the British army had refused orders to move into Ulster in readiness to enforce a Home Rule Act. Hugh opposed the motion, as his father would have done thirty years before.172 A year later, Durrant was killed serving in the Rifle Brigade, and two years later, Hugh, a Northumberland Fusilier, died of wounds in Salonika. 167 169 171 172

168 Midgley, p. 18. The Times, 29 September 1913. 170 The Times, 29 September 1914. The Law List 1912–53. Sir Frank Mackinnon, On Circuit: 1924–1937 (1940), p. 293. Ged Martin, The Cambridge Union and Ireland (2001) Chapter 10.

7 The war and the law

The response of the British judiciary to the exigencies of total war has proved fertile ground for legal historians, and the conclusions drawn from their labours have been remarkably consistent.1 The judiciary proved supine in the defence of individual liberty in cases involving the mass internment of enemy nationals or the targeted internment of British nationals and the application of conscription laws; more ready to protect rights of property against executive interference, particularly once hostilities were over, but only in cases which involved an outright taking of possession; and consistently strong in response only in cases where the courts’ own role and dignity were threatened by rival tribunals or attempts to exclude access to the courts. If an excuse is required for once more turning over this well-ploughed ground, then it is to be found in approaching Great War decisions from the perspective of one of the judges charged with deciding them, and to set his actions in the context of the sacrifices demanded of him by the wartime struggle. To this end, this chapter begins by detailing the wartime experiences of the Scrutton family, before turning to the various wartime decisions in which he was involved.

7.1 The Scruttons at war Three of Scrutton’s sons – John, Alan and Hugh – were already wearing military uniform before the outbreak of war. In 1908 and 1910 1

A.W.B. Simpson, In the Highest Degree Odious: Detention without Trial in Wartime Britain (1994); G.R. Rubin, Private Property, Government Regulation and the Constitution, 1914–1927 (1994); Rachel Vorspan, “Judicial power and moral ideology in wartime: shaping the legal process in World War I Britain” (2008) 87 Oregon Law Review 401; “Law and war: individual rights, executive authority and judicial power in England during World War I” (2005) 38 Vanderbilt Journal of Transnational Law 261; D. Foxton, “R. v. Halliday ex parte Zadig in retrospect” (2003) 119 L.Q.R. 455; “Property, liberty and obligation: the judicial role in the Great War” (2000), Ph.D. thesis, University of London.

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respectively, Alan and John had joined the Artists Rifles (a territorial battalion of the London Regiment) as privates.2 Hugh had been in the cadet force, a second lieutenant on the unattached list of the territorials, and he enlisted from university as a private in the Royal Engineers (motorcyclist section) with his brother John on 5 August 1914. A letter to his mother in that month stated, “we are off from here at 1.30pm . . . and there is very little chance of any other letter getting through. I wish I could have seen you and Father before I went”.3 Tom and John were soon in France – by 16 August – serving as motorcycle despatch riders in the British Expeditionary Force.4 Their parents were in Switzerland when war broke out, promoting some (ultimately unfounded) concern as to whether they would be able to return home.5 John and Hugh soon saw action, fighting with the British Expeditionary Force from Le Cateau, through to the Battle of Mons and the battles now known as First Marne, First Aine and First Ypres,6 although the need for these depressing prefixes had yet to become apparent. Both were mentioned in despatches by Sir John French on 8 October 1914.7 General Sir Frederick Maurice, serving with British Head Quarters staff, later recalled, I have the pleasantest memories of the courage and enterprise of the Scruttons during the retreat from Mons in 1914. After the Battle of Le Cateau, we lost our signal company and we didn’t get it back again for nearly three weeks. During that time I had to rely for divisional communications almost entirely upon the motorcyclist and the Scruttons worked like heroes and were conspicuously the best of the lot.8

Alan was soon commissioned as a second lieutenant in the Artists Rifles,9 becoming a lieutenant the following year,10 and he served with the headquarters staff as aide-de-camp to General Kiggell.11 In February 1915 Hugh was commissioned into the Northumberland Fusiliers,12 2

3 4 5 6 7 8 10 12

Scrutton Family History, p. 34; The Times, 16 June 1913. The Artists’ Battalion was the 28th (County of London) Battalion of the London Regiment, recruited almost exclusively from public schoolboys and university graduates. Hugh Scrutton to Lady Scrutton, 15 August 1914, Scrutton Papers. The Times, 27 February 1915, 21 November 1917. Hugh Scrutton to Tom Burton Scrutton, August 1914, Scrutton Papers. The Times, 21 November 1917. The Times, 19 October 1914; London Gazette, 9 December 1914. 9 Letter of 9 March 1942, Scrutton Papers. London Gazette, 16 October 1914. 11 London Gazette, 13 January 1915. London Gazette, 25 May 1916, 23 June 1916. The Times, 27 February 1915.

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and soon saw more action in Flanders. In a letter home to Janet, he referred to an attack in which “my shipper was killed, an awful nice fellow, although I received not a scratch”.13 Later in the same month, scribbling a letter on an ammunition box “somewhere in the North of France,” he reported that his company had lost seventy-five of 180 men in the preceding month.14 Things appear to have quietened down a little thereafter – he wrote to Tom saying, “the greatest enemy we have to fight in the trenches is boredom”.15 However, in June he was in action again: this time, around Hooge in Belgium, where his command of a grenadethrowing party in an attack on a German trench was singled out as “especially gallant”.16 Wounded in the head, he continued to direct operations until knocked down by a high-explosive charge. After brief treatment at a regimental first-aid station, he insisted on returning to his post. For this, he was mentioned in despatches for the second time and awarded the Military Cross.17 On the home front, Janet was serving as a volunteer nurse, and Tom was the only child not actively engaged in the war effort. He was ordained at Southwark Cathedral in December 1914,18 and in July 1916, after a month’s engagement, was married to Lesley Hay.19 On 20 June 1915, Hugh returned home to Glenwood to recover from his wounds. He was passed fit for light duty on 2 July, and joined up with the 3rd Battalion for active service on 27 August.20 In October 1915, the British and French armies had landed troops at Salonika, in an attempt to lure a heavily divided Greece into the war on the Allied side, and to take on the Bulgarian forces which Tsar Ferdinand had committed to the cause of the Central Powers.21 Hugh Scrutton was embarked with his unit at Marseilles on 24 October 1915, arriving in Salonika via Alexandria on 24 November. He was appointed temporary captain, and mentioned in despatches once again on 1 January 1916. His letters home suggested he was having a quiet time: in June 1916 he told his mother, “in 2 days I shall be a year without any fighting and look like being considerably

13

14 15 17 19 21

Letter of 2 March 1915, Scrutton Papers. His letters to his mother of around the same time were rather more circumspect on the dangers he faced. Hugh Scrutton to Tom Burton Scrutton, 15 March 1915, Scrutton Papers. 16 Letter of 12 April 1915, Scrutton Papers. The Times, 24 June 1915. 18 The Times, 26 July 1915. The Times, 21 December 1914. 20 The Times, 14 June and 3 July 1916. For the following see NA/WO339/19072. For the Salonika campaign see Alan Wakefield and Simon Moody, Under the Devil’s Eye: Britain’s Forgotten Army in Salonika, 1915–1918 (2004).

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longer”.22 He wrote to Janet on 3 September 1916, complaining of the flies and mosquitos which were a detested feature of the Salonika campaign.23 A week later he was involved in an attack on a Bulgarian position on the Struma River (for which he was mentioned in despatches for the third time). He was badly wounded, and fell into Bulgarian hands. A War Office telegram informed the family he was “suspected wounded and reported missing”. These events were relayed in a surprisingly matter-offact tone in a letter written by Scrutton from the St David’s Hotel in Harlech to Tom and signed “T.E. Scrutton”, in which he observed, “This of course leaves his fate uncertain and I do not suppose we shall know for some time. We may come back to Glenwood next week.”24 Another letter followed from the Ashdown Forest Hotel – suggesting that the Long Vacation’s golf was continuing – which recounted reports received from members of Hugh’s unit and pointed to “Hugh falling into the hands of the Bulgarians alive, but render it more probable, though not certain, that he succumbed to his wounds which were serious”.25 Other letters followed – one reported that Hugh had been wounded rallying his men in an attack, and had refused to allow them to expose themselves by carrying him back to his own lines. He was hit four times by machine gun fire, twice in the stomach, although there were mixed reports as to his prospects. There was also a letter from the chaplain serving with the unit: “I can just see him at the services”, Mary Scrutton wrote to her clergyman son, and then in a reference to her husband’s anticlericalism, “even Father was interested”.26 These letters were copied by Scrutton to his fellow judges “at their own request”, Scrutton receiving a number of letters in reply – “one from Darling and one from Pickford”. Scrutton later had the letters printed in a pamphlet.27 Attempts to obtain information through the Red Cross were initially unavailing, and it was only in November 1917 that confirmation of Hugh’s death in a Bulgarian hospital – on 10 September 1916, shortly after his capture – was received.28 22 23 24 25 26 27 28

Letter of 14 June 1916, Scrutton Papers. Letter of 3 September 1916, Scrutton Papers. Letter of 15 September 1916, Scrutton Papers. Scrutton to Tom Burton Scrutton, 1 October 1916, Scrutton Papers. Lady Scrutton to Tom Burton Scrutton, 23 October 1916, Scrutton Papers. Scrutton Papers. Lady Scrutton to Tom Burton Scrutton, 19 November 1917, Scrutton Papers; War Office to Scrutton, 17 November 1917, Scrutton Papers.

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At this point Scrutton began corresponding with the War Office as to whether any sums were due to Hugh or his family arising from his death and about their failure to return Hugh’s personal effects for a prolonged period after they had been returned to the country (or even to notify the family of their arrival). The correspondence was written on Scrutton’s part in the third person, and was both protracted and tense: for example, the rules on which the War Office were acting were condemned as “unbusinesslike” – a strange word given the context – “and unnecessarily harsh”. The War Office declined to change their procedures in accordance with Scrutton’s suggestions. In 1919, Scrutton was still writing (in the third person) seeking to recover a gratuity he believed to be due to Hugh’s estate in respect of his service. It is difficult to see this correspondence as anything other than a displacement activity. Whatever the formality of Scrutton’s correspondence, it is clear that he was devastated by Hugh’s death. “In Memoriam” notices “in proud and loving memory” of Hugh were published in The Times on 10 September on every year from 1918 until Lady Scrutton’s death. Some sense of his sombreness of mood can be seen in rare appearances at Middle Temple “Parliaments” in his capacity as a Bencher. His attendance was infrequent at the best of times, particularly during the war, but he fought strongly against the reinstatement of guest nights for the duration of the war: speaking against a motion to reintroduce them, moving his own motion to rescind that motion and asking that the names and votes of those present be recorded.29 And when Tom and Lesley Scrutton had a son in 1917, they asked Lady Scrutton if the boy should be called Hugh. At this point there was a terrible misunderstanding – she, it seemed, said no because “there should never be another Hugh Scrutton”. She was understood to have answered to the contrary, and an “arctic chill” followed until the misunderstanding was revealed and Hugh given the nickname “Dan”.30 Alan Scrutton was also appointed captain, and seconded from the Artists Rifles to the Machine Gun Corps “Heavy Battery” (later the Royal Tank Corps), which operated the newly deployed tanks.31 He was

29

30 31

Middle Temple Parliament Records, meetings of 3 April and 19 April 1917. Meetings invariably began with the under-treasurer “reading a list of barristers and students who had been killed or died of wounds”. Midgley, pp. 50–1; private information. Supplement to the London Gazette, 14 September and 22 September 1917; Scrutton Family History, p. 34.

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wounded at Second Ypres, and, while an acting major, was mentioned in despatches on 8 August 1918 when he “showed conspicuous ability and gallantry . . . at Bayonvilliers”, going into action on foot the better to coordinate the tank attack with infantry movements, and rallying and organising the tanks at intermediate points on their way to their final objective.32 John also joined the “Heavy Battery” in 1917.33 He had won his MC in 1916 while still a motorcyclist with the Royal Engineers and was promoted to lieutenant.34 He served out the war in the Royal Tank Corps as a captain,35 and took a regular commission in 1922, retiring as a major in 1938.36 Tom Burton Scrutton applied for a commission in January 1918, and was passed fit to serve as a chaplain.37 He was appointed temporary chaplain with effect from 1 March 1918,38 and was sent to France, sending his mother “just a scribble to say we have got over”.39 He appears to have performed the role of a literary “Woodbine Willie”, getting his mother to send over books, newspapers and journals for a reading room he had helped establish for the enlisted men. His comment that “the men would like Truth, I think”40 – a reference to the periodical of the day – brings Kipling’s couplet from Epitaphs of the War irresistibly to mind. Another letter to his mother enthused that “the men are wonderful – I don’t know how they carry on – and it is almost impossible to realise they are just the ordinary faceless British working man . . . It’s a wonderful world and it isn’t easy to see how anyone can be a cynic or a Tory”.41 His service experience made him a convinced pacifist, “resisting warlike bishops, and becoming chairman of the Anglican Pacifist Fellowship”.42 On 2 August 1918 he was hit by a shell fragment in his right knee and invalided home, relinquishing his position as chaplain thereafter.43 In February 1918, Scrutton delivered a lecture at University College London with the title “The war and the law”.44 Drawing heavily on his

32

33 34 35 37 39 40 41 43

Supplement to the London Gazette, 1 February 1919. For his promotion to acting major see the supplement to the London Gazette, 21 October and 2 November 1918. His medal card is at NA/WO72/17. Supplement to the London Gazette, 16 November 1917. Supplement to the London Gazette, 2 June 1916. 36 His medal card is at NA/WO/372/17. Scrutton Family History, p. 34. 38 NA/WO/374/61097. Supplement to the London Gazette, 4 April 1918. Tom Burton Scrutton to Lady Scrutton, 11 June 1918, Scrutton Papers. Tom Burton Scrutton to Lady Scrutton, 25 June 1918, Scrutton Papers. 42 Letter of 26 June 1918, Scrutton Papers. Midgley, p. 24. 44 Supplement to the London Gazette, 17 February 1919. (1918) 134 L.Q.R. 116.

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own experiences, he told his audience, most of whom would themselves have been looking ahead to their own military service, The judges are not of a fighting age, and would not, I am afraid, be of much use in the mud of the Ypres salient or the sands of Mesopotamia. But at any rate they are fighting by their sons; to one judge was given the honour of seeing on the same day two of his sons awarded the D.S.O. and the third the following month; another judge has the pleasure of knowing that all four of his sons are serving, three earned the Mons Star and two have received the Military Cross. At least three of the judges have shared the loss and sacrifice which all patriotic families have made.45

After quoting from Henry Newbolt’s poem “Clifton Chapel” he told them, “And those of us who mourn for the lost have at least the proud pleasure and honour of knowing they have died as soldiers and for their fatherland.” These recollections of sacrifice no doubt hung over the subject matter of the lecture which followed on “the war as affecting legal problems in the works of the courts”, just as the reality of that sacrifice hung over the resolution of those legal problems.

7.2 Trading with the enemy Among those early legal problems were whether an enemy alien could sue or be sued in the English courts, and the effect of the war on commercial contracts to which an enemy alien was a party. Scrutton had a very small part to play in the resolution of these questions, which is unfortunate as he would have been able to bring his considerable knowledge of legal history to bear. The key decision in resolving the ambit of the enemy alien’s rights of participation in legal proceedings was Porter v. Freudenberg,46 in which Scrutton did no more than give permission for one of the sets of proceedings to be served out of the jurisdiction. He played a less peripheral role in the vexed question whether an English corporation owned by enemy alien shareholders partook of enemy alien character, affirming in chambers a summary judgment given in favour of the German-owned Continental Tyre Company against the Daimler Company. However, once again there was no Scrutton judgment to 45

46

Scrutton may have underestimated. Sir Arthur Salter and Sir Harry Eve lost sons in the war (61 Solicitors’ Journal and Weekly Reporter, 24 March 1917, at p. 345), as did Sir James Atkin and Sir Montague Shearman. See David Foxton, Revolutionary Lawyers: Sinn Fein and Crown Courts in Britain and Ireland, 1916–1923 (2008), p. 40. [1915] 1 K.B. 857.

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illuminate a controversy which had divided the Court of Appeal, and, after extensive press and Parliamentary criticism, led to an emotive and politically charged decision overturning Scrutton’s judgment in the House of Lords.47 Even in 1918, Scrutton was clearly critical of the decision and the forces which had generated it, observing that “the tendency of the English courts up to this time had been, in spite of temptations to do what is called ‘natural justice’, to adhere firmly to the position that the company was a legal person existing apart from its corporators”. He noted that the House of Lords’ decision had come “after a long interval occupied by patriotic, but from a legal point of view, not very relevant adjurations by the megaphone of the press”, and from a court which “enjoys the great privilege and responsibility of giving decisions which no higher Court can reverse”. The strength of Anglo-German trading relations in the period up to the outbreak of war left a significant amount of property in which enemy aliens were interested and a mesh of executory contracts and business relationships to be unwound on the outbreak of war.48 This state of affairs was tackled by a succession of Trading with the Enemy Acts. These imposed a progressively tighter and more draconian regime: initially one which intended to locate and ensure the safe custody of enemy property during the war,49 but which in 1916 involved statutes clearly intended to reduce (and indeed eradicate) the German presence in English commercial life when peace came. The purpose of the later enactments was described by Mr Justice Younger – no hawk on these matters – as being “to extinguish speedily and completely those businesses which are directed to be wound up as being obnoxious to it”,50 and, more colourfully, that through the legislation “the plague spot is to be eradicated”.51

47

48

49

50 51

Continental Tyre and Rubber Co. (Great Britain) Ltd v. Daimler Co. Ltd, [1915] 1 K.B. 893; [1916] 2 A.C. 307. See generally David Foxton, “Corporate personality in the Great War” 118 (2002) L.Q.R. 428. There is a survey in the Report to the President of the Board of Trade by the Committee Appointed to Advise the Board of Trade on Matters Arising under the Trading with the Enemy Act 1916 (Cd. 9509), 16 April 1918. The Trading with the Enemy Act 1914 as amended in 1914, twice in 1915, 1916 and 1918. The statutes, together with other alien-control measures, are set out in J.C. Bird, Control of Enemy Alien Civilians in Great Britain, 1914–1918 (1986). In re Dieckmann, [1918] 1 Ch. 331, at p. 337. Continho Caro & Co. v. Vermont & Co., [1917] 2 K.B. 587, at p. 591.

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Commercial contracts which had provided for the possibility of a European war often did so by a suspension clause which would keep the contractual rights in being, suspended during hostilities, to awake from their catalepsy when the war ended. Clauses of this kind were particularly popular in metals trading contracts entered into between British and German businesses,52 but, as the war raged on, many of the English companies who had agreed to them began to question both their relevance and their benefit to future trading. Various actions were brought to have these provisions declared unenforceable because of the advantages it was said they would bring the German counterparties when trade resumed after the cessation of hostilities. Initially these were decided in favour of the English companies either by narrowly construing the suspension clauses in question or through the application of the doctrine of frustration.53 However the issue was raised full-square in the case of Rio Tinto Co. (Ltd) v. Ertel Bieber,54 which concerned long-term contracts for the supply of cupreous sulphur ore and other sulphurous ores. The case was of sufficient importance for special licence to be given to Charles Finney of W.A. Crump and Sons and his counsel, John Compston KC and Arthur Cohn, to go to the Netherlands to hold conferences with their German clients. Rio Tinto were represented by Slaughter and May in what was described as “probably the most important piece of litigation to involve Slaughter and May during the war”,55 the managing clerk Henry Walton taking a leading role. Sankey J held that the contract was unenforceable, a decision upheld in a Court of Appeal in which Scrutton sat, and in due course by the House of Lords.56 Scrutton, with rather more self-awareness than his colleagues, was one of many who gave judicial vent to the hardening

52

53

54 55

56

Scrutton, “The war and the law” p. 127; J.W. Garner, International Law and the World War (1920), p. 246; A.D. McNair, Essays and Lectures upon Some Legal Effects of War (1920), p. 65. E.g. Zinc Corporation v. Hirsch & Sons Ltd, [1916] 1 K.B. 541; Distington Haematite Iron Co. v. Possehl & Co., [1916] 1 K.B. 811. (1916) L.T. 810. See Laurie Dennett, Slaughter and May: A Century in the City (1989), pp. 137–9. For the background to the contracts in question see C.E. Harvey, The Rio Tinto Company: An Economic History of a Leading International Mining Concern, 1873–1954 (1981), pp. 78–81. (1917) 116 L.T. 810; (1917) 33 T.L.R. 437; [1918] A.C. 260. Full transcripts of the judgments at first instance and in the Court of Appeal appear in the Case Papers for the House of Lords: HL/PO/JO/10/10/618/590, HL/PO/JU/4/3/658.

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public mood against any resumption of commercial relations with Germany when hostilities finished: I am afraid that when the jurisprudence of this war comes to be looked into, it will be found that a great many eminent judges have delivered lectures on the subject of enemy aliens in matters which were not before them in the particular case, in which they have stated their views on the general law. I dare say that I shall be found to be one of those guilty persons, but I do desire to say in this case . . . that I think that the effect of this suspension clause is in itself contrary to public policy.

He delivered another judgment in a similar tone – on this occasion in a dissenting judgment – when considering the issue whether the English holder of a power of attorney on behalf of an enemy alien could recover debts and property and hold them until the end of the war on the alien’s behalf. At an early stage in the war, in an action which failed principally on technical grounds, Scrutton had rejected a claim by the English agent of a German principal to recover debts.57 However, the issue arose in more acute form in Tingley v. Muller,58 in which a German national subjected to a deportation order executed a power of attorney days before his departure authorising his solicitor to sell his property and retain the proceeds. The majority of the Court of Appeal upheld the solicitors’ right to enforce a contract of sale because the irrevocable nature of the power of attorney meant that there was no need for any “intercourse” with an enemy alien to complete the transaction. Scrutton strongly disagreed, stating of the contrary argument: If correct, it will allow all German businesses in this country to be carried on by trustees though their owners, the cestuis que trust, are fighting against us, a procedure which, if legally correct, which I doubt, will very much startle public opinion.

Perhaps more than any other Scrutton judgment, this one has a strong flavour of seeking to accommodate and give effect to the public mood, and a particularly anti-German tone: The history of this war has shown that leniency to the subjects of some belligerent nations in their private affairs is only abused by them in the interests of their countries. I am very much impressed by the public danger of a decision which at a time when British subjects are being called upon to give up their businesses to serve their country, will enable

57

Maxwell v. Grunhut, (1914) 31 T.L.R. 79.

58

(1917) 33 T.L.R. 166; [1917] 2 Ch. 144.

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the war and the law alien German subjects resident in Germany, and perhaps fighting against this country, to carry on competing with English businesses.59

In her analysis of English case law in the Great War, Rachel Vorspan has noted a general tendency for judges to assume the role of “judicial warriors”.60 Scrutton was by no means the worst offender. Lord Sumner hoped that after the war “many millions of private persons would have as little to do with the German people as possible”.61 Mr Justice Darling, in a speech of welcome to the Lord Mayor of London in November 1917, reported that “it would . . . be long before we could forget the outrages which had been committed by the Germans” and suggested that the ruins of bombed buildings be preserved to show future generations “what manner of men they were whom the City of London had received as friends, had employed in their offices and had invited to their homes”.62

7.3 War and contract Scrutton had frequent cause to consider the effect of the outbreak of the war on contractual relations – through the doctrine of frustration, the operation of force majeure clauses and the application of various “emergency” Acts of Parliament which gave the court discretion to suspend enforcement or execution of contractual rights when the default had come about due to the state of war. The cases of the Great War are often seen as the high-water mark of the court’s readiness to find that contractual rights had been frustrated – it is in decisions in the course of this conflict that the expression “frustration” moves from a purely maritime doctrine of “frustration of adventure” to subsume a generalised doctrine of impossibility of performance63 – and Scrutton took his place on the crest of the tide. 59

60

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By contrast, he held that a British company which did business in enemy territory through an agent there did not thereby acquire enemy character. In re Hilckes, [1917] 1 K.B. 48. For Scrutton’s criticism of the activities of Germans deported from England to engage “in veiled acts of a hostile nature” on neutral territory see (1918) 134 L.Q.R. 116, at p. 121. E.g. Rachel Vorspan, “Law and war: individual rights, executive authority and judicial power in England during World War I” (2005) 38 Vanderbilt Journal of Transnational Law 261, at p. 264. Speech at the Fight for Right conference, reported in (1917) 62 Solicitors’ Journal & Weekly Reporter, 10 November 1917, p. 61. (1917) 62 Solicitors’ Journal & Weekly Reporter, 17 November 1917, at p. 76. For example, for Sir Frederick Pollock’s first post-war edition of his Principles of Contract (1921), the previous chapter on “Impossible contracts” had been replaced by one on

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The movement of judicial attitudes on frustration of contracts in the Great War is often measured by the contrast between the outcomes in F.A. Tamplin v. Anglo-Mexican Petroleum64 in 1916 (holding that a sixtymonth charterparty was not frustrated when the vessel was requisitioned with nineteen months still to run) and Bank Line Ltd v. Arthur Capel65 in 1918 (holding that a twelve-month charterparty was frustrated when delivery was delayed from April to September due to the requisitioning of the vessel). Scrutton had doubted the correctness of the former decision, noting that it had “divided the House of Lords (three against two) and I am not sure that the majority of the profession agree with the majority in the House of Lords”.66 The majority of the Court of Appeal in Bank Line had rejected the plea of frustration, but Scrutton had dissented on the ground that the change from an April-to-April charterparty to a September-to-September charterparty “frustrates the commercial adventure, destroys the substratum, makes the contract to be a different contract from that which the parties contemplated”. The House of Lords divided between the majority – who accepted the distinction he had drawn – and the minority who did not. Scrutton was involved in another Court of Appeal decision on frustration – Metropolitan Water Board v. Dick Kerr67 – which overturned the first-instance decision that a contract to build a reservoir had not been frustrated by an order of the Ministry of Munitions suspending work, and was upheld in the House of Lords.68 It was not that Scrutton took a generous attitude to those who found their contracts rendered more onerous or less valuable by the exigencies of wartime. His attitude to those who sought to invoke the emergency powers given to the court for the benefit of those unable to perform their contractual obligations due to the state of war was to note “that numbers of debtors . . . urged with great vehemence to an unsympathetic Court that only this unforeseen war had prevented them finding El Dorado”.69 However, when the performance of a contract was suspended by a state of war, Scrutton’s response reflected his strong sense that businessmen needed to know where they stood at an early stage: the same sentiment which had

64 65

66 69

“Conditions and herein of frustration”, and the change was also noted in Charterparties (1919), p. 95. [1916] A.C. 397. [1919] A.C. 435. The Court of Appeal decision is unreported but appears in the House of Lords Case Papers: HL/PO/JO/10/10/626/128 and HL/PO/JU/4/3/667. 67 68 (1918) 134 L.Q.R. 116, at p. 125. [1917] 2 K.B. 1. [1918] A.C. 119. (1918) 134 L.Q.R. 116, at p. 132.

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animated his decision in Embiricos v. Sydney Reid70 that “commercial men must not be asked to wait until the end of a long delay to find out from what happens whether they are bound by a contract or not”. There were those who regarded these decisions as undermining the sanctity of contractual obligations. Arnold McNair expressed concern that some of the language in the frustration cases “is likely to lend colour to attempts to undermine the sanctity of contract and so, by aiming at being too business-like, to do the true interests of business a great disservice”.71 The decisions have been seen in hindsight as the highwater mark of the doctrine of frustration, Scrutton’s former pupil Lord Wright later observing that the doctrine “undoubtedly received some extension owing to the special exigencies of business consequent upon the war. Since these conditions have ceased, the tendency has been to limit the rule once more”.72

7.4

The Brides in the Bath

In his essay “The decline of the English murder”,73 George Orwell conjured up a picture of an Englishman, enjoying a relaxing Sunday afternoon after a roast lunch, “followed by suet pudding and driven home, as it were, by a cup of mahogany brown tea”, who settles down to read his newspaper. In Orwell’s view, what he most wanted to read about “in these blissful circumstances” was murder, noting, If one examines the murders which have given the greatest amount of pleasure to the British public, the murders whose story is known in its general outline to almost everyone and which have been made into novels and re-hashed over and over again by the Sunday papers, one finds a fairly strong family resemblance running through the greater number of them. Our great period in murder, our Elizabethan period, so to speak, seems to have been between roughly 1850 and 1925, and the murderers whose reputation has stood the test of time are the following: Dr. Palmer of Rugely, Jack the Ripper, Neill Cream, Mrs. Maybrick, Dr. Crippen, Seddon, Joseph Smith, Armstrong, and Bywaters and Thompson.

Joseph Smith – or George Joseph Smith, the “Brides in the Bath” murderer – had almost all of the qualities which Orwell believed defined 70 71 72 73

[1914] 3 K.B. 45. A.D. McNair, “War-time impossibility of performance” (1919) 35 L.Q.R. 84, at p. 94. Lord Wright, Legal Essays and Addresses (1939), p. 254. George Orwell, “The decline of the English murder”, Tribune, 15 February 1946.

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the “very best” English murders: a powerful sexual element, a desperate attempt through the acquisition of relatively small sums by murder to maintain a veneer of middle-class material respectability, and some dramatic coincidence, in which the finger of Providence could be clearly seen, or one of those episodes that no novelist would dare to make up, such as . . . Joseph Smith playing “Nearer, my God, to Thee” on the harmonium while one of his wives was drowning in the next room.

It was a high-quality murder in other respects. The Victorian and Edwardian murder trial was a dramatic event – watched by packed galleries, reported by an attentive press, and featuring a cast of “leading players”, each with a devoted collection of supporters. The Smith trial featured three “A-listers”: for the defence the incomparable Edward Marshall Hall KC, the leading defence advocate of the day, renowned for the incomparable drama and theatricality of his advocacy;74 Bernard Spilsbury, the leading pathologist of the day, who had assisted the prosecution in the Crippen case and thereafter became the doyen of medical experts;75 and Sir Archibald Henry Bodkin, “Old Bailey” Treasury Devil and later Director of Public Prosecutions,76 supported by the “rising star”, Travers Humphreys.77 The regular character players of Pierpont and Ellis also put in their familiar appearance at the very final stages. The other starring roles went – naturally – to Smith himself, albeit, as with so many murderers of the period, a non-speaking part, and to the trial judge: a role in which Scrutton enjoyed more press coverage and attention than any event before or since, and his only judicial duty which has since been re-created for dramatic purposes.78 The Director of Public Prosecutions had written to Lord Chief Justice Lord Reading in advance of the trial, and been given a list of those judges who would be available to try the case.79 Scutton was fortunately among them. 74

75

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77 78

79

The definitive biography is by Edward Marjoribanks, The Life of Sir Edward Marshall Hall (1929). Among a wealth of books see Andrew Rose, Lethal Witness: Sir Bernard Spilsbury, the Honorary Pathologist (2007); and Jane Robins, The Magnificent Spilsbury and the case of the Brides in the Bath (2011). See Robert Jackson, Case for the Prosecution: A Biography of Sir Archibald Bodkin, Director of Public Prosecutions 1920–1930 (1962). Douglas Browne, Sir Travers Humphreys: A Biography (1960). The appropriately bearded Philip Voss played Scrutton in the 2003 television drama about the murders and the ensuing trial. Letters of 18, 22 and 27 April 1915, National Archives, DPP1/43.

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While the “Brides in the Bath” were noteworthy murders, there was little of mystery about them.80 Between 1912 and 1914, Smith met and “married” three women, each of whom was insured in contemplation of, or immediately after, their marriage, and each of whom drowned in a bathroom in rented accommodation shortly after the wedding: Bessie Mundy, Alice Burnham and Margaret Lofty. The cover of a recent book about the case refers to there being “no sign of a struggle, no suggestion of foul play. Edwardian England turns to Bernard Spilsbury to solve the mystery”, but once the three deaths had been linked, and Smith’s common role in them identified, little mystery remained. That made the terms of the indictment, and the question of what evidence of one death would be permitted to be adduced in a case concerning another, crucial. The decision taken was to charge Smith with the first death only – Bessie Mundy – and then to seek to adduce evidence of the other two deaths in similar circumstances to eliminate any suggestion of death by natural causes. The trial began on 22 June 1915, and Scrutton was immersed in the papers. Mary Scrutton wrote to Hugh in France a week before it began: “Father is deep in the bath murder and we can’t get a word out of him about anything else. He begins on Tuesday and refuses to give away tickets to sit on the bench.”81 Both those participating in the trial, and those who have subsequently written accounts of it, were struck by the contrast between the formal panoply of the trial process and the wartime background against which it took place. Marshall Hall began his speech for the defence by observing that it was “a great tribute to our national system of jurisprudence” that “when the flower of our youth are laying down their lives for their country” the court had assembled “day after day to inquire into the facts of this sordid case, and to decide whether or not one man should go to an ignominious death”,82 and Scrutton began his summing-up with a similar observation.83 Eric Watson in his account for the Notable British Trials series referred to “the spectacle of Justice, in all its pomp and circumstance, solemnly deciding whether one transparently worthless man should live or die at a time when the war

80

81 82

For the narrative of the murders and a full record of the trial see Eric R. Watson, Notable British Trials: The Trial of George Joseph Smith (1922) (“Watson”), from which the following quotations of the trial are taken. For a contextualised account see Robins, The Magnificent Spilsbury. Mary Burton Scrutton to Hugh Scrutton, 19 June 1915, Scrutton Papers. 83 Watson, p. 262. Watson, p. 268.

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claimed a daily holocaust from among the youngest and bravest of the manhood of Britain”.84 At the opening of the trial, The Times noted that the court was “not uncomfortably crowded though there were many spectators”,85 half of whom were women. A contemporary periodical reported “a great crowd of well-dressed people surging up against the doors . . . scrambling for admittance into a criminal court of the City of London as they might scramble for seats in a theatre”.86 One of the witnesses in the case, a solicitor called Philip de V. Annesley, wrote to the Director of Public Prosecutions asking if he could “kindly get a ticket for a friend of mine, Mrs. Sari, an authoress, who would like to attend the trial . . . as she is anxious to study the characters”.87 The degree of interest which women were showing in the case became something of a scandal. The Weekly Despatch reported of the committal proceedings at Bow Street, Women made journeys of fifty and sixty miles to catch a glimpse of him . . . they stood outside in a queue as early as eight o’clock in the morning in order not to miss the chance of a seat in court; they were content to sit sweltering amid a press of people the whole of a sunny day listening to the most tedious formal evidence in order that from time to time they could have a look at Smith in the dock.88

The fact that three women had met their deaths in bathrooms in boarding houses without attracting the attention of the others present in the buildings at the time was attributed by many to some hypnotic, sexual, power which Smith had over his “brides”. Sir Archibald Bodkin was approached by Mr Ohma of the London Vaudeville Agency, who informed him that “it is not difficult in the least for one hypnotist to recognise another” and offered to prove this in court by a demonstration.89 H.B. Irving, son of the celebrated actor, who attended the trial,

84 86

87 88

89

85 Watson, p. vii. The Times, 23 June 1915. Weekly Despatch, 13 June 1915. The Times, 2 July 1915, noted that the court was “besieged by spectators . . . Many well-dressed women were among them”. Letter of 21 June 1915, National Archives, DPP1/43. Weekly Despatch, 18 April 1915, 1 August 1915. See also Watson, p. 29, where he reports that women “would, as early as eight, take up their station in queues outside the court bringing lunch with them, and they literally hemmed the prisoner in by pressing so closely around the dock that they actually touched him”. NA/DPP1/43, letter of 14 April 1915. Bodkin replied, “I regret to be unable to entertain the proposal”. There are other letters with similarly outlandish theories in the file, including one suggesting that the method used might have featured in a Conan Doyle detective story he had read in a magazine.

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reported hearing two society women discussing Smith’s “magnetic appeal”90 and another writer spoke of the “irresistible feline luminosity in his eyes”.91 Scrutton was conscious, and one suspects somewhat disproving, of the number of women in court. When opening the case, Archibald Bodkin was about to read from a letter written by Smith to Bessie Mundy in which he falsely accused her of infecting him with a sexually transmitted disease, and he suggested to Scrutton that the passage in question might be passed over. Scrutton responded, “No, Mr. Bodkin. You must read the whole of the letter; if people come to Court to hear a case of this kind, they must put up with what they hear”,92 drawing the disapproval of the “Head of Political and Militant Department” of the Women’s Freedom League, who sent a letter of protest to him complaining of the “extreme impropriety of the attitude indicated” and stating that “none of the women present had appealed to Mr. Bodkin to spare them unpleasant details”.93 A similar censoriousness may have motivated his decision to ban any sketching and photography in court,94 although this demonstrated a long-held view. When presiding at a criminal trial five years before, he had announced, “In my view neither sketches, photographs nor anything of that nature should be taken in court and if after what I say anyone sketches, there is such a place as Holloway.”95 In the course of the prosecution opening, the key legal issue in the case was debated and determined in the absence of the jury: whether evidence of the other deaths should be allowed in, and in particular whether this could only happen if the prosecution adduced sufficient evidence to establish a prima facie case for the jury on the sole murder charged independent of the evidence of the other deaths, or whether such evidence was admissible itself to establish a sufficient case. Scrutton resolved the issue against Smith without calling on the prosecution, relying on the decision of the Privy Council in Attorney-General of New South Wales v. Makin and,96 in particular, the judgment of Justice Windeyer in the New South Wales Court of Crown Cases Reserved.97 Having admitted the evidence, Scrutton told the jury that they were “not to use the evidence you hear for this purpose – that he is a man of bad character, and therefore is more likely to have murdered Miss Bundy” – but “for the 90 92 93 95

91 Robins, p. 191. Weekly Despatch, 18 August 1915. Watson, p. 67; Morning Advertiser, 28 June 1915. 94 The letter appears in NA/HO/144/1404/273877. The Times, 21 August 1934. 96 97 The Times, 18 October 1910. [1894] A.C. 57. (1893) 14 N.S.W.L.R. 1.

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purpose of helping you to draw an inference whether . . . the death . . . was accidental or whether it was designed”.98 There followed a trial of 112 prosecution witnesses, with 264 exhibits, and for the defence only a speech from Marshall Hall. Scrutton began his summing-up with some brief remarks towards the end of the court day on 30 June. From those remarks, it was apparent to Marshall Hall that Scrutton intended to offer his own theory as to how the women may have died, in addition to that canvassed by Spilsbury, and that the jury would be permitted to take the bath into their retiring room and experiment themselves: “get some one of you to try it who is about 5 feet 9 inches”. And he invited the jury to consider the following theory: Wife to husband: “I am going to have a bath”; husband to wife, “All right, I will go and turn on the water for you”; husband goes to bathroom and turns on the water and waits; the wife comes in in her dressing-gown or night-gown . . . The newly married husband stays in the room, strips her, or she strips herself; “I’ll put you in the bath my dear”; picks her up . . . lowers her into the bath but holds the knees up . . .

It is clear that the theory of murder under the cover of marital horse-play was Scrutton’s pet theory. Shortly after the trial he corresponded with someone who had been involved in the investigation of the third murder, and the letter in reply states,99 As regards your queries I have of course formed views on the cases . . . I subscribe to your own theory of some kind of playful newly-wedded bathroom dalliance such as “Let me give my nice new plump white baby her bath” followed by either a lifting into the bath or a request for the lower limbs to be held up when in the bath for her hubby’s inspection and admiration.

In addition to Scrutton’s own theory, his summing-up embraced quotations from Molière’s Le bourgeois gentilhomme and Thomas De Quincey’s “On the knocking at the gate in Macbeth”.100 Smith interrupted on numerous occasions, either to offer some explanation from the dock that he had failed to offer from the witness box, or to accuse the judge of bias, but Scrutton did not respond. He then gave a direction on the limited use to which the jury might put evidence relating to the other two deaths – to rebut any suggestion of accident in the case which was the subject of the 98 100

99 Watson, p. 71. Letter of 5 July 1916, Scrutton Papers. Misattributed to Coleridge: a confusion of opium-eaters, perhaps.

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indictment and to establish a system, but for no wider purpose – which is regarded as a classic of its kind. But he deployed the evidence to that limited end in a devastating manner, identifying thirteen coincidences between the three deaths. The summing-up took three hours, but the jury retired for only eighteen minutes before returning a guilty verdict in “the most notable murder trial in this country since the Crippen case”.101 The final set piece of the Edwardian murder trial – the epilogue in which the moral of the story was explained– came in the form of the judge’s remarks when donning the black cap and sentencing the prisoner to death. Scrutton’s remarks were a classic of the genre: Judges sometimes use this occasion to warn the public against the repetition of such crimes. They sometimes use such occasions to exhort the prisoner to repentance. I propose to take neither of these courses. I do not believe there is another man in England who needs to be warned against the commission of such a crime, and I think that exhortation to repentance would be wasted on you.

The Judicial Studies Board now warns trainee judges to express no opinion on the jury’s verdict, but Scrutton told his jury that the conviction was “a thoroughly right one” which had been obtained thanks to the assiduity and care of Inspector Neil, the officer in charge of the investigation. He informed the Home Secretary, “I have no doubt of the correctness of the verdict” but predicted there would be an appeal on the admissibility of the evidence of the other deaths.102 There was such an appeal,103 in which the Court of Criminal Appeal were critical of Scrutton’s decision to offer a theory – that the women had been lifted into the bath – which had not been presented by either side in argument, but otherwise upheld the summing-up and the conviction. Smith was despatched by Pierpont and Ellis on 13 August 1915, a large crowd (including “many women of all ranks”) having gathered outside Maidstone Prison for the occasion. It remained for Scrutton to provide some observations to the Home Secretary on the performance of the coroners in the case.104

101 103 104

102 The Times, 2 July 1915. Letter of 1 July 1915, NA/HO/144/1404/273877. R. v. Smith (George Joseph), (1916) 11 Cr. App. Rep. 229. Letters of 22 and 27 July 1915, NA/DPP1/43; extract in NA/HO/144/1404/273877: he suggested that knowing all three cases, those critical of the coroners were “all being wise after the event”.

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In addition to his starring role in the metropolis, Scrutton also continued to tour the provinces: the winter assize of 1915 saw him on the Western Circuit,105 followed by the North and South Wales and Chester Circuit106 and the North East Circuit the following year.107 However, wartime circuit life was very different from its peacetime counterpart. Scrutton recalled,108 The judge who used to walk with a deferential escort to his reserved railway carriage is now lucky if he had not to stand in the corridor of the train while going on circuit. And worst of all, the hand of the Food Controller is on the judge of the assize. The judges were at first told by some subordinate that they were in the same class as a commercial traveller, and must get their meals at an hotel. A suitable outburst of judicial wrath induced a superior official to promote the judges to the same position as an ambassador, but the food is still a difficulty.

The judge took his own cheese and sugar ration with him, his best hope of obtaining something more sustaining being to prevail upon the hospitality of the Bar who, he noted, “as usual have managed to look after themselves”. Scrutton was set to head off on another wartime circuit in October 1916: his sittings for the Oxford and Midland Circuits were announced in The Times on 11 October 1916. However, Scrutton, and his cheese and sugar rations, remained in London, for the following day he was appointed to the Court of Appeal.109

7.5 The Court of Appeal Scrutton was appointed by Lord Buckmaster, who had been appointed Lord Chancellor after Haldane had been forced out by prejudices against his pre-war links with Germany. Scrutton had sat as a puisne judge in the Court of Appeal in the course of 1916,110 but the immediate occasion of his appointment was the retirement of Sir Walter Phillimore. The Times observed that he would bring “the strength of a sound lawyer and a man of businesslike methods” to the Bench,111 although it later commented that “satisfaction at the appointment on its merits was perhaps increased by the thought that a none-too-genial judge of first instance would in the 105 107 109 110 111

106 The Times, 2 January 1915. The Times, 9 April 1915. 108 The Times, 15 April 1916. (1918) 134 L.Q.R. 116, at p. 119. NA/T1/11976, Lord Chancellor’s appointment of Sir T.E. Scrutton as Lord Justice. E.g. in Booth Steamship v. Cargo Fleet Iron Co., [1916] 2 K.B. 570. The Times, 12 October 1916.

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Court of Appeal be less formidable in the company of his colleagues”.112 The Solicitors’ Journal & Weekly Reporter observed presciently that “the Court of Appeal is his proper sphere and we venture to predict that there he will add additional lustre to a reputation already so high”.113 His son John, serving in France, wrote to his brother Tom, I am glad father has the new job, especially now, but as you say it is not easy to explain. The Colonel was certain I became an “Honourable” and wanted to put me on an official list as such but I managed to stop him.114

Scrutton was told he was to be sworn in at ten o’clock on a Monday morning at the House of Lords.115 When he enquired what he should wear – “ordinary morning dress or ordinary Court of Appeal robes?” – he was told the latter, and that he would begin sitting immediately after he was sworn.116 He was sworn in as a privy councillor shortly thereafter.117 Scrutton did not take long to find his feet. On 18 October 1916, in his first decision, he dissented from the Master of the Rolls and Warrington LJ in a case raising an issue of company law.118 He was clearly stimulated by the range of work – “the CA work is interesting”, he told Sir John Simon while still in his first month of sitting119 – and he brought his modernising instincts and impulse to procedural efficiency to bear in areas of the law which fell far outside his traditional strengths. In Gayer v. Gayer,120 for instance, he dissented on the issue whether adultery could be proved by affidavit evidence, observing that “it had been made a reproach to the divorce law of England that it was a law for the rich and not for the poor” and stating that “he took the view that it should be the aim of the court to make its justice as cheap and accessible as was consistent with a reasonable amount of security against its being deceived”.121

112 113

114 115 116 118 119 120 121

The Times, 21 August 1934. Solicitors’ Journal & Weekly Reporter, 14 October 1916. See also the Law Times, 14 October 1916: “the atmosphere of the Court of Appeal may be more suited to his undoubted talents”. Letter of 7 November 1916, Scrutton Papers. Schuster to Scrutton, 13 October 1916, NA/LCO 2/2225. 117 Correspondence in NA/LCO 2/2225. On 24 October 1916, NA/LCO 2/2225. In re Bede Steam Shipping Co., [1917] 1 Ch. 23. Scrutton to Simon, 23 October 1916, Bodleian Library, Simon Papers, MS53. The Times, 30 January 1917. The first of many Scrutton Court of Appeal judgments to attract press comment. The Times, 31 January 1917.

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His views were invariably forthright, not merely on the legal issues before him but on the moral merits of the litigants. In Horwood v. Millar’s Timber and Trading Co. Ltd,122 a moneylending case, he began his judgment by stating, “I am doubtful whether I can express my judgment in language of sufficiently judicial moderation in view of the facts of this case”, noting, Any judge who has heard criminal business in the city of London knows that one of the great evils of London at present is the system by which moneylenders lend money to clerks who have small salaries in offices in London, and, under the terror of telling their employers that they have lent such money, drive clerks to crime and inflict any amount of evil on their families.

It is unclear whether his own attempt early in his career to obtain a judgment from the Court of Appeal in favour of a moneylender against an improvident clergyman came to mind. His particular expertise in and feel for commercial disputes was manifest from an early stage, for example when determining the consequences of the fraudulent production of documents in a complex commercial transaction with multiple elements.123 In Produce Brokers Co. Ltd v. Olympia Oil and Cake Co. Ltd,124 he noted that “this is a very expensive cargo of soya beans because besides the original price it has now had to stand the expense of six hearings in the High Court and of two hearings before the Incorporated Oil Seed Association”, but proceeded to give a masterly judgment on the circumstances in which custom could be adduced to vary the written terms of the contract, upholding the conclusion of the arbitrator. He soon established himself as a leading appellate judge, and the dominant personality in the court. Just over a year after his appointment, when the Lord Justices were complaining about the increased work as a result of the failure to replace Lord Cozens Hardy after his retirement from the office of Master of the Rolls, it was Scrutton who wrote to the Lord Chancellor, Lord Finlay, to complain about “the detriment to the public interest and interference with the business of the Court of Appeal which resulted”: a communication passed on by Finlay without comment to Prime Minister David Lloyd George.125 Anticipating future events, it 122 124 125

123 [1917] 1 K.B. 305. Guaranty Trust Co. of New York v. Hannay [1918] 2 K.B. 623. [1917] 1 K.B. 320. Scrutton to Finlay and Finlay to Lloyd George, 25 January 1918, Parliamentary Archive, Lloyd George Papers, LG/F/16/5/4. It was a further four months before Sir Charles Swinfen Eady was appointed.

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was Scrutton in 1920 who took the lead in raising the issue of judicial salaries when the then Lord Chancellor, Lord Birkenhead, decided to resume “Judges’ Council” meetings126 – meetings of the High Court and Court of Appeal judiciary to discuss issues relevant to the proper discharge of their functions.127 Scrutton asked the meeting to “consider the desirability of bringing the question of Judges’ Salaries before the Government”,128 and at the meeting he complained that increased taxation and the cost of living meant that a pre-war salary worth £4,600 was now worth £1,600. A letter, signed by most of the judges, including Scrutton, was sent to the Lord Chancellor and the Lord Chief Justice. For a time it looked as if the suggestion would bear fruit. A paper was prepared by Sir Claud Schuster, recommending substantial increases in salary – 30 per cent in the case of Lord Justices.129 The paper reflected many of the issues raised by Scrutton in the Judges’ Council, and it was placed by Birkenhead before the Cabinet with a favourable recommendation and favourably received.130 A Judicial Salaries Bill was drawn up the following year to implement the increase.131 However, it was never passed, and the moment lost as the post-war fiscal climate darkened considerably.132

7.6 Servant of the state? In his lecture on “War and the law”, after recounting the personal sacrifices which members of the judiciary had made to the war effort, Scrutton also referred to the fact that “the judges themselves have rendered such extra-judicial tasks as they have been called upon to undertake”.133 There were numerous occasions, however, when it seemed that the war effort was being pursued in the court room, and when the service which the judges were being called on to provide to assist that effort involved tasks which were very much judicial rather than 126 127 128

129 130 131 132

133

See Sir Claud Schuster to the Lord Chief Justice, 23 June 1920, NA/LCO 2/602. See Sir John Thomas, “Judges councils” (2005) P.L. 608. NA/LCO 2/602 for this and the following. The meeting took place on 27 July 1920. See also Robert Stevens, The Independence of the Judiciary: The View from the Lord Chancellor’s Office (1993), pp. 50–2. See NA/LCO 2/467, “Salaries of judges”; NA/CAB/24/121, March 1921. Birkenhead to the Chancellor of the Exchequer, 16 November 1921, NA/LCO 2/467. NA/LCO 2/467, “Judicial Salaries Bill, 1921”. By November 1921. Birkenhead had reduced the amount of the requested salary increase, but even this proved too much. NA/LCO 2/467. (1918) 134 L.Q.R. 116, at p. 117.

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extra-judicial. Scrutton managed to avoid these executive entanglements for the early years of the war. His first appearance in what was unquestionably a wartime case was in the Court of Criminal Appeal, hearing the appeal by Sir Roger Casement against his conviction for treason.134 Before the war, Casement had been a British diplomat knighted for his efforts in exposing the violations of human rights practised by the Belgian authorities in Congo. He had come to adopt a more militant stance on the issue of independence for his native Ireland, in part through disillusionment at the manner in which the British government had indulged the Unionists in the north-east of Ireland. After the outbreak of war, acting in concert with the German intelligence service, he had attempted to recruit from the ranks of Irish prisoners of war captured by the Germans in order to form an army which would be landed in Ireland to assist in a rising against British rule. The recruitment mission was essentially a failure, and it was only Casement and two others who were landed by German submarine three days before the Easter Rising in 1916, and arrested shortly after they came ashore. Casement’s trial under the Treason Act 1351 was the very essence of legal drama – F.E. Smith’s non-pareil opening for the Crown; Casement’s “dock speech”; the breakdown of Casement’s counsel, Serjeant Sullivan, in the course of his closing speech; and Smith’s attempt to interest Sullivan in reading the indiscretions revealed in the so-called “Black Diaries”, the authenticity of which remains in dispute. Lord Reading, the Lord Chief Justice and the supreme judicial servant of the state in wartime, presided at the trial with Mr Justice Horridge and Mr Justice Avory, and Casement was convicted. The point of law raised on appeal arose from the wording of the Treason Act, which stated, “being adherent to the King’s enemies within his realm giving them aid and comfort within the realm or elsewhere”. The issue was whether this offence could be committed by someone outside the realm (Casement had been charged for his activities in the prisoner of war camps in Germany). The reading advanced for Casement was that the words “or elsewhere” attached to the words “within the realm”, qualifying where the “aid and comfort” might be given (to a domestic or foreign enemy), but leaving an unqualified requirement that the adherence to the King’s enemies take place within the realm. The contrary view treated the words 134

There is a wealth of literature on Casement and his trial: see in particular H. Montgomery Hyde, The Trial of Sir Roger Casement (1960); George H. Knott, Trial of Roger Casement (1917); and B.L. Reid, The Lives of Sir Roger Casement (1976).

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“or elsewhere” as an independent sub-clause, qualifying all that preceded them, as though a comma separated them from the preceding words, so that the offences created by the statute were being adherent to the King’s enemies, by giving them aid and comfort, within the realm, or being adherent to the King’s enemies, by giving them aid and comfort, elsewhere.135 There was much to be said for Sullivan’s view, but it was contrary to the views expressed over many hundreds of years by Sir Mathew Hale, Serjeant Hawkins and Lord Coke. The Court of Criminal Appeal comprised Darling, Bray, A.T. Lawrence, Scrutton and Atkin.136 At the invitation of Sir Charles Darling, the artist Sir John Lavery recorded the scene, and Scrutton is depicted on the left-hand side of his painting, Casement himself looking out at the jury box. Sullivan found the argument heavy going, and there were some sharpish exchanges with Scrutton about Sullivan’s handling of Coke’s text. Writing later, Sullivan recalled that Scrutton “did not like my junior” and had criticised the fact that the junior had inspected the wrong Parliament rolls, leading Sullivan to protest that “so long as a junior of mine did his duty to my satisfaction, there was no other person in the court entitled to criticise him”.137 The published transcript does not record such an exchange, but it is possible that it was bowdlerised. Sullivan recalled that after the exchange he and Scrutton became “firm friends”, but whether this followed immediately, as the biography suggests, or later once Sullivan had relocated to the English bar and become active in the Bar Golfing Society, is unclear. Certainly, when in the Court of Appeal, Scrutton came to Sullivan’s aid after he had been subjected to disgraceful treatment from the Lord Chief Justice, Sir Gordon Hewart, in the course of the trial.138 At the conclusion of his argument on the Treason Act point, Sullivan abandoned the other ground of appeal. The court dismissed the appeal without calling on the Attorney General to answer Sullivan’s argument. About ten days later, the court received a letter from Casement’s legal team stating that the second ground was to be raised after all, and that Sullivan had had no authority to abandon it. Darling, Bray and Scrutton appeared in court and announced that the appeal court would reassemble the following day to offer a final chance 135 136 137

138

Hence the suggestion that Sir Roger Casement was hanged on a comma. [1917] 1 K.B. 98. Serjeant Sullivan, The Last Serjeant: The Memoirs of Serjeant A.M. Sullivan (1952) (“Sullivan”), p. 273. These events are considered in Chapter 10.

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for outstanding arguments.139 The next day, all five judges were in attendance, to be told that no further argument would be made after all.140 Casement was executed on 3 August 1916. Casement had been tried, and convicted, in reliance upon a statute which had been on the Parliamentary roll for over 500 years. However, the legality of executive action in the Great War generally fell to be determined by a statute of rather more recent vintage – the Defence of the Realm Act or DORA – passed at lightning speed through the House of Commons on 7 August 1914 and equally rapidly through the House of Lords.141 One MP later complained that “the House . . . in its patriotic anxiety to make everything easy for the Government in the time of crisis, abrogated its ordinary right of criticism”.142 DORA empowered His Majesty in Council to issue “regulations as to” – and later by amendment “for” – “securing the public safety and the Defence of the Realm”. Under its auspices many thousands of Defence of the Realm Regulations – DORRs – were issued, and numerous orders made under those DORRs. Scrutton told his student audience in January 1918 that the last edition of the Regulations alone contains 87 large pages of small print. The last editions of Emergency Legislation run to over 500 pages and there are numerous outstanding acts in addition. I hope I am not alarming the audience when I conjecture that everyone present has broken at least one of these regulations, I trust without knowing it.143

Scrutton’s view of the role of the judiciary faced with such emergency legislation was clear: Complaints have been sometimes made of the actions of the judges or their failure to interfere with the actions of officials. The answer is that Parliament has allowed certain actions, and has laid down certain rules in statutes. The only duty of the judges is to enforce and administer those statutes.144

In so doing, he was prepared to tolerate sloppiness in drafting which would undoubtedly have attracted his judicial wrath in peacetime, remarking in one case that he desired 139 141

142 143

140 The Times, 28 July 1916. R. v. Casement, (1917) 12 Cr. App. Rep. 125. For the passing of DORA and the making of DORRs, including Regulation 14B and the manner of its operation, see A.W.B. Simpson, In the Highest Degree Odious: Detention without Trial in Wartime Britain (1994) Chapter 2; Foxton, “R. v. Halliday ex parte Zadig in retrospect” (2003) 119 L.Q.R. 455. Mr Trevelyn MP, HC Deb., Vol. 70, 24 February 1915, col. 1301. 144 (1918) 134 L.Q.R. 116, at p. 129. (1918) 134 L.Q.R. 116, at p. 119.

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the war and the law always to remember that it is much easier to criticize at one’s leisure an Act of Parliament which has been drafted in haste than it is to draft an Act one’s self, and it is quite possible that if I had been applied to in a great hurry by a Minister to draw this Act I might have made a much worse hand at it than the draftsman did.145

And when considering the exercise of those powers, he noted, The judges do not consider it their duty to run the war, and they take the view that the responsibility for infringements on the previous liberties of British citizens is with Parliament, who authorised these infringements, and with the executive, who exercise the powers conferred by Parliament.

In R. v. Denison ex parte Nagle in 1916,146 Scrutton was sitting on a Divisional Court with Lord Reading and Mr Justice Avory, which heard an application for certiorari by Hermann Nagle, a Germanborn, naturalised Englishman who had been made subject to an order under Regulation 14 that prevented him from living in the area of No 9 Northern Command, which embraced the county of Lincolnshire. The military authority on whose recommendation the order was made – Colonel Denison – swore a pro forma affidavit deposing that he suspected Nagle of having acted or of being about to act in a manner prejudicial to the public safety and the defence of the realm, but providing no particulars. However, the Divisional Court rejected the suggestion that there was any requirement of reasonableness attaching to the suspicion, holding that it sufficed that the suspicion was honestly held. The most notorious among the many DORRs was Regulation 14B, drawn up by Home Secretary Sir John Simon,147 which gave a power to intern where “on the recommendation of a competent naval or military authority” it appeared to the Home Secretary that “for securing the public safety or the defence of the realm it [was] expedient in view of the hostile origin or association of any person to do so”.148 An order made under the regulation was required to provide for “due consideration” of the case by an advisory committee presided over by a person “who holds or has held high judicial office”, and such a committee was constituted under Sir John Sankey, who sat with Sir Robert Younger and

145 147

148

146 Sharp Brothers & Knight v. Chant, [1917] 1 K.B. 771. (1916) L.J.K.B. (N.S.) 1744. In his memoirs, Retrospect (1952), p. 104, Sir John Simon stated, “I must avow myself the author of the much-criticised ‘Regulation XIV’”. SR&O 1915, No. 551.

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four Members of Parliament of various political persuasions. The key issue whether this legislation was ultra vires the words of the enabling statute was determined in the executive’s favour by the House of Lords in R. v. Halliday ex parte Zadig,149 provoking a celebrated dissent by Lord Shaw of Dunfermline.150 For those British subjects wishing to challenge their detention without trial, that left only a challenge to the Home Secretary’s decision that it appeared to him that they were persons of hostile origins or association. One such internee was Hilda Howsin,151 a supporter of Indian nationalism who in 1909 had published a book entitled The Significance of Indian Nationalism. While working as a Red Cross nurse during the war, she was arrested on 1 September 1915. Her surgeon father, who was out shooting partridges at the time of her arrest, did not discover her whereabouts for seventeen days, and it was five weeks before she appeared before the Advisory Committee, where she was “suddenly ushered into a room in which she found some eight gentlemen”,152 among them Stanley Baldwin, who subjected her to close questioning.153 They did not see fit to recommend her release, and she was held with other women Regulation 14B internees in a former inebriates reformatory in Aylesbury. The suspicion surrounding Miss Howsin was not without justification. By her own account, in her affidavits placed before the Divisional Court,154 her internment was due to her acquaintance with Mr Virendranath Chattopadhyaya, a Hindu of high connexions and distinguished talents whom she had met in London ten years ago. At that time he was reading for the Bar. She afterwards heard that the Benchers of his Inn had refused to call him and that he had therefore decided to abandon his legal studies and to leave the country in 1909.

149 150 151 152

153

154

[1917] A.C. 260. See Foxton, “R. v. Halliday ex parte Zadig in retrospect” (2003) 119 L.Q.R. 455. For the Howsin case see Simpson, Odious, pp. 22–3. According to Earl Russell, raising a question on her behalf: HL Deb., 24 July 1917, cols. 23–32. She later stated that she was republishing The Significance of Indian Nationalism because “the innocuous opinions and arguments which it presents apparently formed one of the reasons why the wisdom of the Advisory Committee . . . ordained that I should be imprisoned for the period of the war”. Hilda Howsin, The Significance of Indian Nationalism, 2nd edn (1922), p. viii. The Times, 12 and 17 July 1917, for reports of the applications.

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Chattopadhyaya was an Indian nationalist who had been a member of “the India House”,155 a network of radical Indian nationalists some of whose members were linked with the 1909 assassination of Sir W.H. Curzon Wyllie, an India Office civil servant, in London.156 He left London for Berlin, becoming a member of an Indian revolutionary grouping known as “the Berlin Committee”, which received support from German intelligence. In 1915 Chattopadhyaya made attempts to contact former India House members in London by using various Swiss and English contacts, including Hilda Howsin. On her own account, Howsin had received a letter from a woman (almost certainly Meta Brunner, a Swiss woman who was also subsequently interned in Britain) with a message from Chattopadhyaya asking her to go urgently to London. From there she went to Switzerland, where she had two meetings with Chattopadhyaya, and she brought back a message for a Hindu friend in London. However, British intelligence had intercepted Chattopadhyaya’s communications, in an operation involving (at its fringes) the unlikely figure of Somerset Maugham, whose experiences of intelligence work in Switzerland formed the basis for his Ashenden short stories.157 When questioned about Howsin’s detention, the Attorney General F.E. Smith told the House of Commons that she had been in communication with Chattopadhyaya, who was engaged in a campaign of violence and sedition against British interests.158 Twenty-two months into her internment, Howsin brought a legal challenge to the legality of her detention. The timing of the application was not propitious. If the judiciary needed any further reminder of the extraordinary times in which they now operated, it was provided by the German daylight bombing raids on London which began on

155

156

157

158

See N.K. Barooah, Chatto: The Life and Times of an Indian Anti-imperialist in Europe (2004) (“Chatto”). See Richard J. Popplewell, Intelligence and Imperial Defence: British Intelligence and the Defence of the Indian Empire, 1904–1924 (1995), p. 132; Chatto, Chapter 1. The character Chandra Lal is based on Chattopadhyaya, and Chattopadhyaya was the subject of a British assassination attempt described in the novel. In the book, Chattopadhyaya was lured into France through a romantic attachment, whereas in reality the British agent who contacted him claimed to be involved in a campaign to obtain Miss Howsin’s release. For Chattopadhyaya’s activities in Switzerland and British plans to assassinate him see Chatto, pp. 135–7. HC Deb., 23 March 1916, col. 426–7, 450. For another attempt by members of the Berlin Committee to involve Hilda Howsin in its work see Chatto, p. 68.

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13 June 1917,159 which Scrutton witnessed from the safety of Eltham Golf Course, and about which he was “very excited”.160 Howsin’s application was brought before the Divisional Court, who refused to issue a writ of habeas corpus requiring the executive to justify her detention, and suggested that the affidavit sworn by Miss Howsin was defective in not adducing evidence that she was not a person of hostile origins or association.161 A renewed application with a new affidavit was no more successful,162 Sir Charles Darling’s conduct in both applications – Howsin’s counsel was subjected to frequent sarcastic interruptions – being little short of disgraceful. On appeal, the matter came before Pickford, Neville and Scrutton.163 This was not Scrutton’s first encounter with Virendranath Chattopadhyaya. Chattopadhyaya had been a student at the Middle Temple before the war, and had written a number of letters to British newspapers expressing support for the assassination of Sir W.H. Curzon Wyllie.164 His actions had come before the Middle Temple Parliament – the meeting of Benchers – and Scrutton was one of twenty Benchers present to vote upon the Treasurer’s motion that Chattopadhyaya be given until “tomorrow 4pm to send in a written withdrawal of the passages in his letters and articles which appear to encourage violence and disloyalty and an expression of regret for their publication and in default that he be expelled”. That motion was defeated by a rival motion – passed by fourteen votes to six – expelling Chattopadhyaya on the ground that he was “not fit and proper to continue as a member of this Inn”.165 There is no record of how Scrutton voted in 1909, but in 1917 the Court of Appeal dismissed Miss Howsin’s application. The only judgment was given by Lord Justice Pickford, but the judgment reflected Scrutton’s own views: Parliament had given the executive wide powers (“they might or might not think the power too wide”) and it was not for the court to interfere. The judgment suggested that if there was no material on which the competent military authority could reasonably come to the conclusion that Miss Howsin was of hostile associations – an apparent contrast with the decision in Denison ex parte Nagle – then the 159

160 161 163 164

165

For reports see The Times, 14 June 1917, 5 July 1917 (Harwich), 8 July 1917 (Thanet), 8 July 1917 (London) and 23 July 1917 (East Coast). Lady Scrutton to Tom Burton Scrutton, June 1917, Scrutton Papers. 162 The Times, 12 July 1917. The Times, 17 July 1917. Ex parte Hilda Margaret Howsin, (1917) 33 T.L.R. 527; The Times, 24 July 1917. See The Times, 9 and 12 July 1909; Daily Despatch, 7 July 1909. The events are discussed in Chatto, Chapter 1. Middle Temple Parliament Records, 28 July 1909.

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court might be able to interfere, but here there was ample evidence in the applicant’s own affidavit to justify the decision to intern. Scrutton commented later that “the Courts have declined to sit as Court of Appeal from the executive and re-try the cases of interned persons in order to see whether the executive have acted rightly”:166 the expression “re-try” being, presumably, a reference to the far-from-judicial hearing before the Advisory Committee. The result was that Miss Howsin remained in Aylesbury. In March 1918, the Advisory Committee suggested that she could be released if sureties were provided for her good behaviour,167 but the proposal appears to have fallen through, and she was not released until August 1919.168 In 1918, Scrutton heard another DORA appeal, on this occasion against an order under Regulation 14 which had forced a naturalised German, William Ronnfeldt, to leave the area of Cardiff where his home and business were located. In this case, there had been a hearing before Mr Justice Darling at which a representative of the “competent military authority” who had made the order gave evidence and was crossexamined. The order had been made against Ronnfeldt on the basis of rumours that his father had spoken with satisfaction of the sinking of the Lusitania and he had said that the Kaiser’s head would soon be on the coinage of the country.169 Sir Charles Darling thought the competent military authority may have suspected Ronnfeldt “without much reason” but that the honest suspicion was enough to justify the order. The appeal was no more successful. Scrutton adopted his by now familiar line – “I can hardly conceive of wider powers than those which, in the interests of the state, have been conferred upon the naval and military authorities . . . and I protest against being called upon as a judge to say whether the military authority has acted reasonably or not”.170 Responding to a point taken on the wording of the order, he added that “in time of war, more attention should be paid to substance and less to form”. In R. v. Superintendent of Chiswick Police Station ex parte Sacksteder,171 Scrutton considered a challenge to executive action under another

166 167 168 169 170

(1918) 134 L.Q.R. 116, at p. 130. HC Deb., Vol. 104, 20 March 1918, cols. 1005–6. Howsin, The Significance of Indian Nationalism, 2nd edn (1922), p. vii. Ronnfeldt v. Phillips, (1918) 34 T.L.R. 553. 171 Ronnfeldt v. Phillips, (1918) W.N. 328. [1918] 1 K.B. 578.

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emergency statute: the Aliens Restriction Act 1914. That Act, and the Aliens (Restriction) Consolidation Order, gave the Home Secretary power to deport those of alien nationality and order that they remain outside Britain, but did not expressly provide for a power of deportation to a particular foreign country. The applicant was a French subject of military age who was liable to conscription in France. The British and French governments had agreed that French nationals in Britain who were liable for military service would be returned. This was achieved by making a deportation order under the Act and consolidation order, which was enforced by detaining the applicant and placing him on a ship for France. The use of the power to deport to effect “disguised extradition” of this kind had already been sanctioned by the Court of Appeal in R. v. Governor of Brixton Prison ex parte Chateau Thierry,172 which held that the Home Secretary had the power to select the ship on which the object of the order would leave Britain. However, in that case no power of arrest had been exercised. In Sacksteder the Court of Appeal held that there was a power of arrest which had been validly exercised by the Home Secretary by reference to the particular case. Scrutton’s judgment began promisingly enough: I approach the consideration of this case with the anxious care which His Majesty’s judges have always given, and I hope will always give, to questions where it is alleged that the liberty of the subject according to the law of England has been interfered with, and none the less when the person is not by birth or naturalization a subject of the King but a foreigner temporarily living within the King’s protection.

However, he repeated his now familiar position that “responsibility for the exercise of the powers conferred by Parliament on the Executive must rest with the Executive and not with the Court”, going on to note, “It is true that in this case there is not much room for sympathy . . . The appellant is a French subject who desires to avoid helping France in the time of France’s national emergency. It is difficult to feel much sympathy with such an appellant”. This lack of sympathy with those wishing to avoid obligations of military service which his four sons had voluntarily undertaken is understandable, and reflected Scrutton’s perception that “from the point of view of a judge it is difficult to see how the state can exist if everybody who conscientiously objects to the law may disobey it, and then shriek complaints when he is punished”.173 Subsequent 172

[1917] 1 K.B. 922.

173

(1918) 134 L.Q.R. 116, at p. 131.

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generations of judges who connived in “disguised extradition” can point to rather less by way of extenuating circumstances.174

7.7

The protection of property

Scrutton was not involved in the leading cases of the Great War which considered executive interference with rights of property, whether by virtue of the Crown Prerogative175 or under emergency legislation.176 However, he did have some limited involvement in cases which considered the use of the Crown Prerogative to requisition ships for the purpose of obtaining the services of the vessels, and their crews, by way of time charterparty.177 The difficulty which the Crown faced here was that while a prerogative to requisition ships was well recognised, there was no historical justification for the requisitioning of crews, and it was crewed ships, rather than the bare vessels, of which the Crown had need. This difficulty was addressed by the careful exploitation of legal ambiguity, with a proclamation purporting to requisition ships and men, on terms as to compensation and use to be determined by a board established by the Government known as the Admiralty Transport Arbitration Board. This body applied standard Government rates for different types of service known as “Blue Book” rates,178 and resolved disputes as to the precise terms of service which would apply and as to the right of indemnity against losses of particular kinds. The means by which the board fixed rates of hire and terms was not consensual – the panel was constituted under the proclamation issued by 174

175

176

177

178

See R. v. Governor of Brixton Prison ex parte Soblen, [1963] 1 Q.B. 829; [1963] 2 Q.B. 243; Paul O’Higgins, “Disguised extradition: the Soblen case” (1964) 27 No. 5 M.L.R. 521. In the matter of a Petition of Right, [1915] 3 K.B. 649; and Attorney-General v. De Keyser’s Royal Hotel, [1920] A.C. 508, on which see G.R. Rubin, Private Property, Government Requisition and the Constitution, 1914–1927 (1994), Chapters 4 and 6 (“Rubin”). Central Control Board (Liquor Traffic) v. Cannon Brewery, [1919] A.C. 744; and Newcastle Breweries Ltd v. The King, [1920] 1 K.B. 854; on which see Rubin, chapters 7 and 8. On this issue see David Foxton, “A thing ‘unknown to law’: the strange case of the Admiralty Transport Arbitration Board” (2002) 18 Arbitration International 19. “Because they [were] bound in blue and for no other reason”. Evidence of Sir William Walton, a member of the board, to the Select Committee on the Indemnity Bill Q.556, Report and Special Report from the Select Committee of the Indemnity Bill together with Proceedings of the Committee, Minutes of Evidence and Appendices (1920) P.P. 1920 (136), vii.

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virtue of the Crown Prerogative – but it adopted many of the accoutrements of consensual arbitration, no doubt in the hope of presenting an act of executive requisition as the outcome of a voluntary process. In these circumstances, it is not perhaps surprising that some owners dissatisfied with the Board’s decisions sought to challenge them before the courts under the Arbitration Act 1889. The first such cases were Lobitos Oilfields Ltd v. Admiralty Commissioners and Crown Steamship Co. v. Admiralty Commissioners.179 The first raised a familiar problem of the Great War – where responsibility lay between war risks covered by the Government and marine risks covered by hull underwriters – and the second involved a claim for indemnity for loss suffered when complying with government orders. The board had refused to state a case for the court in each case, but at first instance the court ordered a case to be stated in the Crown case, and the Admiralty appealed to the Court of Appeal, in the form of Swinfen-Eady, Scrutton and Warrington. When the Solicitor-General, F.E. Smith KC, made the submission that there was no consensual arbitration for the purposes of the 1889 Act, the court raised in response the wider question whether the proclamation could legally requisition the services of the owners and the crews, dropping strong hints that the proclamation might be held ultra vires in this respect. This was clearly Scrutton’s view: the following month he referred to the fact that a nation whose history in the seventeenth century includes ship-money hears in the twentieth century of the prerogative to commandeer ships, owners and crews. The rights of the executive in time of war which may be of great importance to the safety of the realm are in danger of being stretched to justify official actions not authorised by Parliament for which there is no immediate war necessity.180

After raising the issue, Swinfen-Eady asked Smith “whether it was worthwhile pressing the appeal in view of the very wide questions as to the extent of the prerogative to which it might give rise”.181 Thus warned, Smith abandoned the appeal and agreed to pay the shipowner’s costs. The effect of the decision was that the Crown had allowed the subject to exercise a right to have issues of law determined in court, on the fiction that the process provided for in the proclamation was consensual arbitration, rather than face a determination that there was no legal right to 179 181

180 (1917) L.J.K.B. (N.S.) 1444. (1918) 134 L.Q.R. 116, at p. 133, added emphasis. The Times, 8 December 1917; Lloyd’s List, 8 December 1917.

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compel the shipowners to provide services, as opposed to ships, absent a consensual arrangement. This was one of many instances in which the court was prepared to mount a challenge to the exercise of executive power so as to preserve its own jurisdiction.182 The Crown later sought to turn this reverse to its advantage, when one owner – the Anglo-Newfoundland Development Corporation – refused to make its arguments to the board and commenced court proceedings.183 The Crown applied for a stay of the proceedings under Section 4 of the Arbitration Act in reliance on the Lobitos Oilfields decision. On this occasion the court – Bankes, Scrutton and Warrington – found that there was no submission to arbitration, and no right to a stay. Scrutton noted that the case “raises the question whether the Crown has power not only to requisition vessels but to appoint of its own motion the tribunal to assess the amount to be paid for them”, a matter “too important . . . to submit to a tribunal of two shipowners and a legal member . . . It is matter for discussion in public in the King’s Courts”. 182 183

For another example see Chester v. Bateson, [1920] 1 K.B. 829. Anglo-Newfoundland Development Corporation v. The King, [1920] 1 K.B. 214.

8 At the height of his powers: 1919–1927

8.1 The appellate temperament The general consensus is that Scrutton’s judicial demeanour was much improved in the Court of Appeal,1 an improvement The Times later attributed to one or more of “better health, experience or the presence of two colleagues”.2 Issues relating to his temperament were to achieve more prominence in the last period of his judicial career – between the time when he became the presiding judge in the “common law” Court of Appeal following Sir John Eldon Bankes’s retirement in 1927 and his death in 1934 – but his displeasure on those occasions was directed at certain judges of first instance whose behaviour fell below the high standards he set himself.3 In the Court of Appeal, Scrutton was less inclined to stand on his judicial dignity, and all the better for it. He was often critical of his own judgments – for example in William Hansen v. Gabriel, Wade & English Ltd,4 he began by observing, “I do not profess that the judgment I am about to give is satisfactory to myself, and that being so, I cannot expected it to be satisfactory to anyone else”, and concluded by stating, “I come to the conclusion in this case for what it is worth, and I do not think it is worth very much, that the charterers are wrong”.5 In another case, in which the respondent’s counsel had been stopped by the court on one point, but Scrutton had then found his certainty undermined in reply, he stated in his judgment, “I made a mistake in not asking Mr. Wright

1

2 3

4 5

The Times, 21 August 1934; Solicitors’ Journal & Weekly Reporter, 25 August 1934, at p. 34; Mackinnon, Oxford Dictionary of National Biography. The Times, 21 August 1934. Scrutton’s fallings out with Sir Gordon Hewart and Sir Henry McCardie are considered in Chapter 10. (1924) 17 Lloyd’s Law Rep. 245. See also J. & J. Denholm Ltd v. Shipping Controller, (1921) 7 Lloyd’s Law Rep. 66: “I do not feel justified in either agreeing or disagreeing, which is not a satisfactory state of mind to be in”.

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to complete his argument, and should have been ready to rectify it by hearing any further arguments he wished to add”.6 While Scrutton would still take counsel to task for making bad points, he now generally did so with a lighter touch. Patrick Hastings KC, who became Attorney General in the first Labour government and was something of a favourite of Scrutton’s, recalled the following incident in a case in which one ground of appeal was that Hastings had unduly influenced the jury:7 Lord Justice Scrutton was a member of the Court. Those of us who knew him so well, remember him not only as a good judge but as a man possessed of a keen and somewhat cynical sense of humour. On reading this particular ground of appeal the judge asked gently who was the overbearing counsel who had appeared to represent the underwriters. I was indicated as the offender. “But surely the plaintiff was represented by adequate counsel of his own?” Four distinguished members of the Bar headed by Mr Duke rose in their seats. “Dear, dear” said Lord Justice Scrutton.

In another case, he began his judgment by stating,8 I have listened to Mr. Campion’s interesting and ingenious argument with great care, and with a certain amount of hope that it might convince me, because I recognised a superior and improved version of the argument which I had unsuccessfully presented to the Court of Appeal in Leonis v. Rank.

Humour was also a valuable tool when correcting judgments which had gone awry at first instance. In La Cie des Chemins de Fer de Paris à Lyons et à la Méditerranée v. Great Western Railway Co.,9 when reversing a first-instance decision on a shipping case, he began, During the course of the argument there has come to my mind a statement that I heard made by a very distinguished member of the Oxford Circuit, Lord Darling, when he was being addressed, sitting in the King’s Bench, by Mr. Joseph Walton, who was well known to be very familiar with shipping matters. Mr. Joseph Walton took an illustration of his principle founded entirely on shipping, whereupon Lord Darling said

6

7 8

9

Rose & Frank & Co. v. Crompton & Bros. Ltd v. Brittains, Ltd, (1923) 14 Lloyd’s Law Rep. 519. Patrick Hastings, The Autobiography of Sir Patrick Hastings (1948), pp. 138–43. Van Nievelt Goudriaan Stoomvaart Maatschappij v. C.A. Forslind & Son, Ltd, (1925) 22 Lloyd’s Law Rep. 49. (1925) 22 Lloyd’s Law Rep. 101.

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to him: “Do you mind, Mr. Walton, taking your illustration from some other subject than shipping? We have no ships on the Oxford Circuit.” In this case there was a ship on the Oxford Circuit, and, with very great respect to that admirable Circuit, I cannot think that they entirely got to the bottom of what happened to that ship.

When young barristers who appeared in front of him performed well, he would often send them letters of congratulation: a number of replies to such letters survive in his family papers, including one from an unidentified recipient thanking him “for your most kind and helpful letter. I always felt you helped me to see what was really needed if I were to succeed before you”.10 David Maxwell-Fyffe, the future Viscount Kilmuir, recalled that “Scrutton was not harsh on young counsel, but you knew you had to know your stuff”.11 There remained occasional lapses: Gilchrist Alexander recounts “the wounded feelings of the counsel from a local Lancashire Bar whose accent [Scrutton] had been impelled to imitate in a moment of irritation”,12 and, according to Harold Laski, when Sir Paul Ogden Lawrence, another bad-tempered judge,13 was appointed to the Court of Appeal in November 1927 “the bar . . . privately suggested its hope that he and Scrutton LJ will not sit in the same court”.14 His abhorrence of waste of time and costs remained. In Blyth Harbour Commissioners v. Crown,15 he bemoaned the fact that the appeal had taken “312 years to bring . . . on in this Court”16 – it had taken fifteen months to get a judgment out of the first-instance court and two years to bring the appeal on – suggesting that “I think that it is a denial of justice to the lay parties concerned. I personally attach great importance to swift justice”. In a lecture to the Cambridge University Law Society in 1920,17 he suggested that one of the present dangers of English justice is that the ability and energy of counsel and the fertility of suggestion of expert witnesses are making

10 11 12 13 14

15 16 17

Letter of 11 May 1925, Scrutton Papers. As told to Karl Llewellyn, The Common Law Tradition: Deciding Appeals (1960), p. 235. Gilchrist Alexander, After Court Hours (1950) (“After Court Hours”), p. 171. The Times, 29 December 1952. Harold Laski to Oliver Wendell Holmes, 23 November 1926, Holmes–Laski Letters, Vol. II, p. 889. (1925) 22 Lloyd’s Law Rep. 404. Either a Freudian slip in the judgment or a typographical error in the report. Scrutton, “The work of the commercial court” (1921) 1 C.L.J. 6, at pp. 9–10. See also his “Law and business” lecture to University College London, The Times, 2 May 1922.

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at the height of his powers: 1919–1927 justice too expensive for the poor. There is a case at present going on in the House of Lords – you have probably seen references to it in the papers – where a colliery tip on a hillside slid down and two or three thousand pounds’ worth of damage was done to the houses below, and another two thousand or so was spent in stopping the colliery refuse from slipping further. An action was brought by the Local Board against the colliery, and when I tell you that it involved the case of Rylands v. Fletcher, an answering thrill will pass through the heads of all students. At the present moment, in the House of Lords, the costs on both sides are over £150,000.18

The following year, in litigation concerning the navigability of the Manchester Ship Canal, he found even this figure surpassed: To elucidate the question thus stated, the painstaking ingenuity of Counsel and solicitors has produced 11,943 questions and answers contained in 1247 printed foolscap pages, House of Lords form, over 2000 pages of correspondence, reports and diaries, and a number of maps, diagrams and tables which I am unable to count, but which run into hundreds. In navigating these cases through the lengthy but tortuous channels of the access to the House of Lords, Counsel have thought it necessary to address to the two inferior Courts over 1200 foolscap pages of speeches. The record of the colliery tip which mixed itself up with the quarry tip in the Rhondda Valley has been completely outdistanced, and even Jarndyce v. Jarndyce must look to its laurels. The costs, I suppose, are now well over £100,000, perhaps much more. I hope the shareholders in the Ship Canal Company and Brunner, Mond & Co. and the various Weaver traders appreciate the expensive muddle into which their legal advisers have led them, which in my opinion could have been avoided by a little common sense and compromise on the part of the business men who manage their affairs.19

On this occasion, one of the litigants hit back: Mr Brunner, the chairman of the company, responded to Scrutton’s comments at the company’s annual meeting by observing, “I cannot help feeling that Judges in these days are too prone to comment upon matters which are outside their province and upon which they are ill-informed”.20

18

19

20

He was referring to Attorney-General and Others v. Cory Brothers, [1921] 1 A.C. 521: Scrutton had dissented in the Court of Appeal and his view prevailed in the House of Lords. Manchester Ship Canal Co. v. Brunner, Mond & Co. Ltd, Attorney-General v. Manchester Ship Canal Company, (1922) 10 Lloyd’s Law Rep. 787. The Times, 19 June 1922.

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8.2 The Court of Appeal Scrutton first sat with his former pupil, Sir James Atkin, and with Sir John Eldon Bankes in the Court of Appeal on 27 May 1919,21 and this constitution sat on a near-continuous basis until Bankes’s retirement towards the end of 1927. It is generally regarded as the strongest constitution of the English Court of Appeal ever to have sat on a regular basis,22 hailed by subsequent judges as “that classic and most eminent Court of Appeal”,23 a “combination of unrivalled distinction” in the field of commercial law24 and “the greatest Court of Appeal in commercial matters that this country has ever had”.25 In contrast to Lord Denning’s court of the 1970s, its success did not depend on the brilliance of a single judge able to carry one or other of his fellows with him: considerable as its parts were, the worth of the whole was considerably greater than that of their sum. There were various confluences and contrasts in their backgrounds and outlook. Prior to his appointment to the Bench, Scrutton had been a devoted Liberal, a supporter of Home Rule and an unsuccessful Liberal Parliamentary candidate. Bankes was a Unionist who had also stood for Parliament, again unsuccessfully, in his case for Flint Boroughs in the January 1906 election.26 Atkin had no discernible political sympathies, but was of a liberal – rather than Liberal – outlook, and did sit on the Liberal benches once he was appointed in the House of Lords.27 Bankes came from a distinguished legal background – he was a descendant of 21 22

23

24

25

26 27

In Epsom Grand Stand Association (Ltd) v. E.J. Clarke, The Times, 27 May 1919. Had a similar period of continuous sitting been permitted, then the constitution in Arbuthnott v. Fagan, (1995) C.L.C. 1396 (Sir Thomas Bingham M.R., Steyn and Hoffmann LJJ), may have rivalled it. R. (on the application of Husain) v. Asylum Support Adjudicator, [2001] EWHC Admin 852, Stanley Burnton J, at [89]. Borealis AB (formerly Borealis Petrokemi AB and Statoil Petrokemi AB) v. Stargas Ltd (The Berge Sisar), [2002] A.C. 60, Lord Hobhouse, at [20]. Lord Diplock in his Alexander Lecture, (1978) 44 No. 3 Arbitration 107. See also A.W.B. Simpson, Biographical Dictionary of the Common Law (London, 1984), p. 10, “arguably the strongest Court of Appeal this century”; Oxford Dictionary of National Biography, Vol. II (2000), p. 812, “perhaps the best-equipped division of the Court of Appeal of any age”; G.H. Treitel, “Some problems of breach of contract” (1967) 30 M.L.R. 139, at p. 146: “one of the strongest Courts of Appeal in history”. The Times, 2 January 1947; Oxford Dictionary of National Biography entry. Lewis, at pp. 19, 25 (by which time the decline of the Liberal Party made this very much an act of political agnosticism rather than, as in Scrutton’s early years, one of political tribalism). Lewis describes Atkin as “a political agnostic”, albeit he had been identified as a Labour sympathiser by Sir Henry Slesser when writing to Ramsay MacDonald about potential Labour Lord Chancellors on 3 January 1923.

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Lord Eldon on his father’s side and Sir John Jervis, Chief Justice of the Common Pleas, on his mother’s side – and was very much part of the Flintshire “squirearchy”. Scrutton’s origins, affluent as they were, were metropolitan and commercial, Atkin’s somewhat less affluent but still comfortable. Like Bankes, Atkin was brought up in rural North Wales. Both Bankes and Atkin were committed Christians, who had collaborated in drafting the constitution of the Church in Wales after its disestablishment by the Welsh Church Act 191428 – Christian convictions in Atkin’s case animated a number of his judgments, including the famous “who is my neighbour?” test in Donoghue v. Stevenson.29 Scrutton, by contrast, although “formally correct” in matters of religion, was a “proper Victorian atheist”,30 alienated by his own son’s religious vocation and desirous of avoiding any religious ceremony to mark his own death.31 Academically, Scrutton was the dominant figure: his achievements at London and Cambridge overshadowed the second-class degrees obtained by Bankes and Atkin at Oxford, as did his legal publications thereafter. Scrutton and Atkin were, of course, closely linked: Atkin had picked Scrutton out as his pupil master and learned much from him (albeit the clear hierarchy which prevailed at the start of their relationship may have brought its own tensions once they were operating at a co-ordinate level). There was a shared love of golf, a close involvement in the work of the Council of Legal Education, and strong personal ties between their families.32 In addition, both Scrutton and Atkin had lost sons in the war, Atkin’s son Dickie dying in France in 1917 a year after Hugh Scrutton had died in Salonika. In the majority of the reported judgments of the court – almost all those in the Law Reports and the majority of those in Lloyd’s Law Reports – each of the three gave a judgment, and almost invariably each is worth reading for the insight it brings to the problem at hand. As senior and presiding judge, Bankes gave the first judgment, although there are cases in which Scrutton delivered the judgment of the Court. 28

29

30 32

For their contributions and collaboration see D. Walker, “Disestablishment and independence”, in D. Walker, ed., A History of the Church in Wales (1976), 164. There is some suggestion that Sankey, Bankes and Atkin went into “retreat” for a week to draft the Constitution of the Church in Wales. Lewis, p. 22. Richard Castle, “Lord Atkin and the neighbour test: origins of the principles of negligence in Donoghue v. Stevenson” (2003) 7 No. 33 Ecc. L.J. 210. 31 Personal communication from Dr Mary Midgley. See Chapter 9. Atkin’s grandchildren, for example, are said to have adored Scrutton: personal communication.

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Lord Chorley QC is almost certainly correct in his view that Scrutton’s “mind . . . was stretched to the full by rivalry with Atkin”.33 Lord Denning recalled his early appearances before the Court: “Often there was a difference between Scrutton and Atkin, each trying to win over Bankes. Scrutton with robust common sense. Atkin with a fine rapier mind. The Court spoke just enough. They also listened well – especially to youngsters.”34 It is to Lord Denning that we owe the suggestion that Scrutton and Atkin “fought for the body of Bankes”, and the impression that the court was one which divided on a frequent basis. Geoffrey Lewis has suggested that either Atkin or Scrutton dissented as often as the court was unanimous. This almost certainly overstates the position. There are 280 decisions of the court which involved reasoned judgments reported in the Law Reports, Lloyd’s Law Reports or The Times. There were thirty-two dissents: fifteen by Scrutton, fourteen by Atkin and three by Bankes.35 Bankes’s dissents prevailed on both occasions on which there was a further appeal to the House of Lords, Atkin on two of nine occasions and Scrutton on four of six. The decisions of the Court (whether unanimous or majority) were themselves subject to appeal to the House of Lords on fifty-one occasions,36 and the relatively high proportion of dissents may explain why the number of times the court was upheld (twenty-eight) only just exceeds the number of times it was overturned (twenty-three). In cases in which there was no dissent, the reasoning of the members of the court frequently differed,37 and on occasions one or other indicated unhappiness with the result without going so far as to dissent.38 There were various influences operating in Scrutton and Atkin’s divergent treatment of a number of the appeals. A number of the dissents involved issues of fact, where Scrutton was more reluctant than Atkin to reach a conclusion which differed from that of the first-instance 33

34 35 36

37

38

In his review of Scrutton on Charterparties, 18th edn (1975) 38 M.L.R. 707. He noted that “this court was probably the best appellate court of recent times; if not in our whole legal history”. Lewis, pp. 91–3. There was a near-fourth dissent in Bennison v. Hulton, The Times, 15 April 1926. There was an automatic right of appeal to the House of Lords until the Administration of Justice (Appeals) Act 1934. For example Niblett v. Confectioners Materials, [1921] 3 K.B. 387; and Robinson v. The King, [1921] 3 K.B. 183. For example, Scrutton in J. & J. Denholm v. Shipping Controller, (1921) 7 Lloyd’s Law Rep. 66; and Ocean Coal v. Davies, [1927] A.C. 271; and Atkin in Limerick v. Stott, [1921] 2 K.B. 613; and The Melanie, [1922] P. 243.

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judge. He explained his approach in Mathie v. Argonaut Marine Insurance Co. Ltd:39 I have had considerable doubt in the course of this case; and I am not sure that if I had been the Judge of first instance in this case I should have come to the same conclusion as the Judge below: but one’s position in the Court of Appeal is quite different from what it would be if one was a Judge of first instance. In the Court of Appeal the appellant has to satisfy the Judges of Appeal that the Judge below was wrong. The state of my mind after listening to the arguments I have heard from Counsel is that, while I should hesitate to say that the Judge below was right, I am not satisfied to say that he was wrong.

For this reason, Scrutton was not prepared to interfere with a finding of the justices that there was evidence to corroborate an allegation of paternity when the employer of a pregnant housekeeper allowed her to move in and stay for five weeks after the birth – “it is the justices with their local knowledge who are to be satisfied” – whereas Atkin, in an emotional judgment – “what else could an innocent person have done . . . There was nobody else either to light a fire or to make tea or to give her brandy?” – reached the opposite conclusion.40 Scrutton also attached more significance to the first-instance judge’s ability to observe the demeanour of witnesses than Atkin, each heavily influenced (to opposite effect) by his own trial experience. In emphasising the importance of demeanour, Scrutton recalled a Probate suit at Assizes where a will found after a testator’s death was attacked as a forgery. A lady who benefited by the will was in the witnessbox and a question was suddenly put to her whether she had not forged the will in a particular way. The shorthand note simply recorded that she said: “Certainly not;” but those in court saw her hesitate, flush, draw herself up and give her answer in a defiant way, that suggested to all that the question had hit the truth. She afterwards confessed that she had forged the will in the way suggested. The Court of Appeal would have seen only the paper denial.41

Atkin’s contrasting view was heavily coloured by a murder he tried in which the defendant gave compelling evidence of his innocence in the witness box before confessing to the crime afterwards, leading him to the conclusion that “the lynx-eyed judge who can discern the

39 41

40 (1924) 19 Lloyd’s Law Rep. 64. Thomas v. Jones, [1921] 1 K.B. 22. Lek v. Mathews, (1926) 25 Lloyd’s Law Rep. 525, at p. 535.

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truth-teller from the liar by looking at him is more often found in fiction or in appellate judgments than on the Bench”.42 In other cases, their differing views reflected differing policy outlooks which are apparent in judicial responses to the same issues today. In Everett v. Griffiths Lewis,43 the claimant had sued the chairman of the board of governors and the medical officer who had made the reception order and given the medical certificate for the claimant’s detention in a lunatic asylum. Bankes and Scrutton held that there was no duty of care on the part of the defendants, merely one of honesty, Scrutton treating the decision-making process as quasi-judicial in nature and identifying a number of adverse consequences which would flow from the recognition of a duty of care: “the community who will suffer if real lunatics are not imprisoned, because the officers appointed to certify are afraid of the cost and annoyance of actions alleging improper certification, even if those actions fail”; “very few lunatics think they are properly incarcerated, and most of them would enjoy an action in which the individual has always a better chance of getting the sympathy of the jury than the officers of the State who are performing the unpleasant duty of incarcerating him” and “there is no hard and fast line between sane and insane persons; there are degrees of mental instability which shade into each other, and the same person may vary very rapidly from soundness to unsoundness of mind if his mind is unbalanced”. He concluded his judgment with a quotation from John Dryden: “Great wits are sure to madness near allied, And thin partitions do their bounds divide.” Atkin, who was already moving towards the universal tort of negligence he propounded in Donoghue v. Stevenson,44 dissented, holding, “it is just as it is convenient that the law should impose a duty to take reasonable care that such persons, if sane, shall not suffer the unspeakable torment of having their sanity condemned and their liberty restricted”. The House of Lords, perhaps influenced by hearing Everett argue the appeal in person over nine days, upheld Bankes and Scrutton.45 Scrutton’s decision did not reflect any lack of sympathy for the plight of those consigned to lunatic asylums: 42

43 45

The case was the so-called “sack” murder of Ball and Elltoft, which Atkin referred to in Société d’Avances Commerciales v. Merchants Marine Insurance Co., (1924) 20 Lloyd’s Law Rep. 140, at p. 152; and Lek v. Mathews, (1926) 25 Lloyd’s Law Rep. 525, at p. 543. 44 [1920] 3 K.B. 163. [1932] A.C. 562. [1921] 1 A.C. 631. Everett brought a number of other actions against Griffiths: see [1923] 1 K.B. 130; [1923] 1 K.B. 138; and [1924] 1 K.B. 941, by which time McCardie J noted that Everett “was well known for his frequent, persistent, and fruitless litigation”.

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in Harnett v. Bond,46 in which similar proceedings were brought against a commissioner for lunacy and the manager of a house of reception, he noted that there were considerable grounds for thinking that the plaintiff had been detained for longer than he should have been and that “if it were a Royal Commission this case showed that serious consideration should be given to the question whether the judicial enquiry preceding the making of a reception order should be more precise in its procedure” and “whether the existing system . . . afforded sufficient safeguards against undue prolongation of detention”.47 However, he did not believe imposing a duty of care on the individuals concerned was the appropriate response. In another case, he expressed the view that “it is not negligent to abstain from doing a thing unless there is some duty to do it”.48 Even after Donoghue, Scrutton remained resistant to the full ambit of the Atkin tort. He suggested in Farr v. Butters Brothers49 that Atkin’s statement in Donoghue went “wider than is necessary”, noting that “English judges have been slow in stating principles going far beyond the facts they are considering. They find themselves in a difficulty if they state too wide propositions and find that they do not suit the actual facts”.50 When Geoffrey Lewis wrote his biography of Atkin in 1983, it seemed that Atkin’s view had achieved an unalloyed triumph,51 but the intervening decades have seen significant movement in Scrutton’s direction. Despite, or perhaps because of, their differing backgrounds, Scrutton’s relationship with Bankes was a strong one. When Bankes retired at the end of 1927, Scrutton presided at a dinner held to mark the event in 46

47

48 49 50

51

The Times, 17 May 1924; [1924] 2 K.B. 517. Harnett had recovered £25,000 damages in a jury trial before Lush J. An appeal was allowed against one defendant, and a retrial ordered. An attempt to challenge the decision in the House of Lords failed. [1925] A.C. 669. As with many of his judgments of the period, Scrutton’s comments became the subject of questions in the House of Commons; see HC, 21 May 1924, col. 2226, and 9 July 1924, cols. 2557–8. Sheppard v. Glossop Corporation, [1921] 3 K.B. 132, at p. 145. [1932] 2 K.B. 606, at p. 612. Scrutton had attacked overgeneralised judicial statements of principle in Woyka & Co. v. London & Northern Trading Co., (1922) 10 Lloyd’s Law Rep. 110, at p. 115: “Very vigorous minds frequently have a habit, when they are strongly impressed with the facts of a case, of expressing their vigour in general terms of principles of law which are much too wide for the case with which they are concerned; and the second act of the drama always is that when that statement is read to them in some subsequent case they say that no one should be so foolish as to interpret general words as applying to anything but the case which the learned Judge had under discussion”. Lewis, pp. 36–7.

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the Inner Temple.52 Writing to him the following day, Bankes thanked him “sincerely for the part you played so well last night” recalling, “Nothing could have been nicer than what you said. There was no one I would sooner have said it. Thank you. We have had a very happy time together.”53 However, there was an unhappy member of the trio: Atkin, who appears to have chafed in his role as the junior member and at the reduction of his income which followed from his appointment to the Bench. He drafted – but did not send – a resignation letter to the Lord Chancellor, Lord Haldane, in 1924 threatening to return to practice,54 and in 1927 told his son that he was “beginning to feel rather tired of the Court of Appeal where I shall have been five years next Spring and have been junior Common Law Lord Justice all the time: quite unprecedented”.55 Atkin’s frustration was to end the following year, when his elevation to the House of Lords effectively ended Scrutton’s own prospects of promotion.

8.3 Class and the judiciary In 1920, at the invitation of Harold Dexter Hazeltine, who was then Downing Professor of English Law, Scrutton delivered a lecture to the Cambridge University Law Society,56 staying afterwards with his son Tom who had been appointed chaplain at King’s College.57 In the course of his lecture, which was delivered without notes, Scrutton outlined the attributes which a good legal system needed to have, one of which was impartial judges. On this topic, he observed, This is rather difficult to attain in any system. I am not speaking of conscious impartiality; but the habits you are trained in, the people with whom you mix, lead to your having a certain class of ideas of such a nature that, when you have to deal with other ideas, you do not give as sound and accurate judgments as you would wish. That is one of the great difficulties at present with Labour. Labour says “Where are your impartial judges? They all move in the same circle as the employers and they are all educated and nursed in the same ideas as the employers. How can a labour man or a trade unionist get impartial justice?” It is very difficult 52 53 55 56 57

The Times, 25 November 1927. 54 Bankes to Scrutton, 16 December 1927, Scrutton Papers. Lewis, p. 19. Atkin to his son Bill, June 1927, quoted in Lewis, p. 93. Scrutton, “The work of the commercial court” (1921) 1 C.L.J. 6. Scrutton to Harold Dexter Hazeltine, 20 October 1920, Harold Dexter Hazeltine Papers, Series IV, Item 3-23, Historical & Special Collections, Harvard Law School Library.

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at the height of his powers: 1919–1927 sometimes to be sure that you have put yourself in a thoroughly impartial position between two disputants, one of your class and one not of your class. Even in matters outside trade-unionist cases (to some extent in workmen’s compensation cases) it is sometimes difficult to be sure, hard as you have tried, that you have put yourself in a perfectly impartial position between two litigants.

When the Judges Council were asked to consider whether a grand jury – drawn from those meeting particular property requirements – should continue to determine whether or not criminal prosecutions should be pursued on the assizes, Scrutton opposed the proposal on grounds of “class feeling: prosecutions shouldn’t be initiated or stopped on secret evidence”.58 It is difficult to conceive of many judges of this period with the self-awareness to perceive these difficulties, and none with the courage and directness to give public expression to them. Ninety years later, it remains one of few judicial acknowledgements of the problem posed by the “politics of the judiciary”.59 Perhaps to assist in the search for impartiality, Scrutton believed that judges should be trained in political economy, a suggestion which found considerable favour with the Fabian lawyer and academic Harold Laski, whom Scrutton met on a number of occasions at lunches and dinners.60 Karl Llewellyn’s compliment that Scrutton “neither liked, nor sympathized with, nor understood [Labour]; he gave it, therefore, thirteen to the dozen” may have done Scrutton an unintended disservice.61 In those workmen’s compensation cases which did reach Scrutton in the Court of Appeal, he appears to have achieved some success in attaining the impartiality to which he aspired. In one such case, Reid v. British and Irish Steam Packet Co. Ltd,62 he commented on the effect of the statutory limitation in the Act which precluded those earning more than £250 per year in non-manual labour from benefiting from its provisions, noting that “£250 today was nothing like a pre-war salary 58

59

60

61

NA/LCO 2/602, notes of meeting of Judges Council, 27 July 1920. The Master of the Rolls, Lord Hanworth, responded, “As to class, other classes might be admitted to G[rand] J[ury]”. For this reason, it is frequently cited in academic literature and by those who believe that the courtroom is not the best place to resolve disputes between employer and employee. It was prayed in aid numerous times during the passage of the Industrial Relations Bill: e.g. HL Deb., 27 April 1971, cols. 317, 1153 and 1171; HC Deb., 19 January 1971, cols. 809, 938; 2 February 1971, col. 1491. See Laski to Holmes, 24 November 1927, Holmes–Laski Letters, Vol. II, p. 981: “He . . . clinched my admiration by his remark that judges should learn more political economy”. 62 Warranty I, at p. 701. The Times, 4 February 1921.

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of £250 and many who would have come under the Act in 1914 were now, owing to the general rise in the rate of wages, excluded from it” – an observation which attracted Parliamentary support.63 Scrutton’s aspiration to put himself “in a thoroughly impartial position between two disputants, one of your class and one not of your class”, was to be severely tested in one of the most politically contentious of judicial decisions: Roberts v. Hopwood, a case said by one commentator to be authority for “the Rule against Socialism”.64 The case arose from legal challenges to policies pursued by the Labour Council elected in the London borough of Poplar: so-called “Poplarism”.65 The Independent Labour Party had taken control of Poplar Borough Council in the elections of November 1919 and the charismatic George Lansbury was elected mayor.66 Poplar was dominated by the docks – the West India and Millwall Docks, and the East India Docks. It had been the home of the Scrutton family for the first twenty-five years of Scrutton’s life, and bordered the Limehouse constituency which Scrutton had fought in 1886. In mid-1920, when the post-war inflationary boom came to a sudden halt, Poplar experienced severe levels of unemployment. The Labour Council was determined to support its unemployed through the payment of indoor and outdoor relief. However, it was one of London’s poorest boroughs, and unable to do this from its own resources. The structure of local authority finance of the time made the London boroughs responsible for raising money – “precepts” – to fund certain metropolitan-wide bodies: the London County Council, the Metropolitan Asylum Board, the Metropolitan Water Board and the Metropolitan Police Authority. On 22 March 1921, Poplar Council decided not to levy the precepts from its ratepayers in a policy described within Labour circles at the time as one of “direct action”. The London County Council and the Metropolitan

63 64

65

66

HC Deb., 31 May 1921, cols. 817–18. For discussion of the case see Phil Fennell, “Roberts v. Hopwood: the rule against socialism” (1986) 13 No. 3 Journal of Law and Society 401; A.G.D. Bradney, “Façade: the Poplar case” (1983) 34 No. 1 N.I.L.Q. 1; Harold Laski, “Judicial review of social policy in England: a study of Roberts v. Hopwood et al ” (1925–6) 39 No. 7 Harvard Law Review 832 (reprinted as Chapter 9 of Laski’s Studies in Law and Politics (1932). The following section draws on Noreen Branson’s Poplarism, 1919–1925: George Lansbury and the Councillors’ Revolt (1979) (“Branson”); and Janine Booth, Guilty and Proud of It! Poplar’s Rebel Councillors and Guardians, 1919–1925 (2009). Lansbury became one of Poplar’s two MPs, was briefly leader of the Labour Party in the 1930s, and is the grandfather of the actress Angela Lansbury.

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Asylum Board responded by seeking a writ of mandamus from the High Court, which was granted by a court comprising the Lord Chief Justice (Sir Alfred Lawrence), Mr Justice Sankey and Mr Justice Brannon on 20 June 1921, their reasoned judgments being handed down on 7 July 1921. An appeal was brought, and on 20 July the Council applied to Scrutton and Lord Justice Warrington for a stay – its case, as in all the Poplar litigation, presented by Henry Slesser, standing counsel to the Labour Party, who was controversially appointed to the Court of Appeal in 1929, where he frequently sat as the junior judge in Scrutton’s court.67 Rather than grant a stay, the Court fixed the appeal on an urgent basis two days hence,68 and duly rejected it in judgments handed down on 27 July 1921.69 Slesser was unable to challenge the council’s legal obligation to collect the precepts, but he asserted its inability to do so and challenged the appropriateness of mandamus as a remedy. The Court (Warrington, Bankes and Scrutton) held that Parliament had provided that the council must collect the precept, that only Parliament could relieve the council of that obligation and that an order of mandamus was the appropriate relief. Scrutton’s own judgment reveals his sympathy, informed no doubt by his personal knowledge, for the economic plight of the residents, and his uncompromising belief in the obligation to obey the law: I hope I appreciate the consideration of the borough council for the poorer ratepayers of a poor borough but if the burdens of the expenses of the administration of London press unequally on various parts of that vast area the remedy is not “direct” or illegal action but bringing the matter before the attention of Parliament . . . The Poplar Borough Council will not be able to govern their area unless they can rely upon their legal demands being obeyed even by those who disapprove of them and they should in my opinion consider very carefully the great responsibility that they incur when they set to other and more ignorant people an example of disobedience to the law.

The Councillors did not obey the order, and in due course (after further hearings in the High Court and the Court of Appeal) a number of them were committed for contempt. The stand-off was eventually resolved by Government legislation which went some way towards meeting the 67

68 69

For Slesser see The Times, 5 December 1979; and his autobiography, Judgment Reserved: The Reminiscences of the Right Honourable Sir Henry Slesser (1941). The circumstances of his appointment, and Scrutton’s reaction to it, are considered in Chapter 10. The Times, 21 July 1921. The Times, 23 and 28 July 1921; R. v. Council of Metropolitan Borough of Poplar (No. 1) ex parte the London County Council, [1922] 1 K.B. 72.

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Poplar councillors’ complaint that the costs of supporting metropolitanwide bodies were not fairly distributed – the Local Authorities (Financial Provisions) Act 1921 – and some carefully worded formulae ensured that the councillors were able to purge their contempt without loss of face to either the councillors or the courts. However, Poplar’s legal struggles were not at an end. Early in 1920, a conference of London Labour local authorities committed themselves to pay a minimum wage of £3 10s 6d, and on 27 May 1920 Poplar voted to pay a minimum wage of four pounds for all employees, male and female, exercising its power under Section 62 of the Metropolis Management Act 1855 to employ such servants as might be necessary and to pay them such salaries or wages as the council might think fit. With the coming of the economic slump, and a fall in both wages and prices, there were complaints by bodies representing the more affluent ratepayers that the wages should be reduced (not only because of their effect on the rates but because it was said that the council’s wages made those working for lower wages in the private sector “discontented”). However, the policy received the sanction of the Poplar electorate when the council was re-elected in November 1922 (although half the rates were paid by businesses whose owners lived outside the borough or companies who had no votes). The Public Health Act 1875 and the Local Government Acts of 1888 and 1894 empowered the minister of health to appoint district auditors to audit the accounts of local authorities, the auditors being authorised in appropriate cases to surcharge councillors for expenditure which was excessive or unreasonable. If a surcharge was imposed, the surcharged councillors had a right of appeal either to the courts or to the minister of health. The district auditor, Mr Carson Roberts – “the doyen of district auditors during the first quarter of the twentieth century”70 – surcharged the Poplar council £5,000 for paying “excess wages” as a result of its minimum-wage policy, the basis of the surcharge being that the amounts paid fell outside the ambit of the council’s discretion under Section 62 of the 1855 Act. The council challenged the surcharge before the Lord Chief Justice, Sir Gordon Hewart, and Sankey and Salter JJ in the Divisional Court, the point of issue being whether it sufficed under Section 62 that the council had acted in good faith in fixing wages, and, if not, whether the level of wages was outside whatever test of reasonableness fell to be applied. 70

Hugh Coombs and J.R. Edwards, Accounting Innovation: Municipal Corporations 1835– 1935 (1996), p. 50.

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The Divisional Court found against the councillors on both points, contending that they occupied a fiduciary position in relation to the ratepayers, and not merely their electors,71 and that it was for the court to determine on the facts whether the payments made exceeded the bounds of what was reasonable.72 The court found the minimum wage to be unreasonable. An appeal followed to Bankes, Scrutton and Atkin. Had there otherwise been any doubt as to the political nature of the case, it would have been removed by the representation: the former Liberal Attorney General and Home Secretary Sir John Simon appeared for the councillors, and the former Conservative Attorney General Sir Douglas Hogg represented the district auditor. Scrutton and Atkin overturned the decision of the Divisional Court, Bankes dissenting. Scrutton and Atkin reached their conclusion by different routes, albeit each was heavily influenced by the desire to accord considerable leeway – a margin of appreciation, as it would now be termed – to elected bodies reaching decisions with a political content. Atkin accepted the councillors’ argument that the only duty in fixing wages was one of good faith, it being “essential to remember that we are dealing with powers given to public bodies consisting of representatives selected by the public by a wide franchise for comparatively short periods”.73 Scrutton held that the powers of the councillors embraced a duty of reasonable care in administration “to protect the interests of all the inhabitants of the borough, whether electors or not, whether ratepayers or not”,74 but it was necessary to give full weight to the fact that the auditor was “dealing with a representative body entrusted by Parliament with wide powers”, with the result that: The question is not whether I should have sanctioned these wages: I probably should not; nor whether the auditor or the Whitley Council would have sanctioned these wages; it is for the Poplar borough council to fix these wages, which are not to be interfered with unless they are so excessive as to pass the reasonable limits of discretion in a representative body.

In relation to the wage payments which were subject to the surcharge, Scrutton held that these limits had not been passed. In his dissenting 71

72 73 74

This was a constitutionally dubious proposition, for reasons which are well developed in Fennell, “Roberts v. Hopwood: the rule against socialism”, pp. 407–9. R. v. Roberts ex parte Scurr and Others, [1924] 1 K.B. 514. R. v. Roberts ex parte Scurr and Others, [1924] 2 K.B. 695, at pp. 725–6. At pp. 718–19.

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judgment, Bankes took the view that there was an implicit requirement of reasonableness in Section 62 of the 1855 Act which it was “superfluous and unnecessary” to state expressly. A public body, in his judgement, was only permitted to pay market wages. A similar result followed when a challenge to a surcharge of Bethnal Green councillors for its wages policy reached the Court of Appeal in Roberts v. Cunningham.75 The councillors held a celebratory party, but the celebrations were short-lived.76 The matter proceeded to the House of Lords,77 to a tribunal comprising Lord Buckmaster, a former Liberal Lord Chancellor; Lord Carson, a former Unionist cabinet minister and Ulster champion; Lord Atkinson, also a former Unionist MP and law officer; Scrutton’s old rival Lord Sumner – not a political appointment but very much a judge of Conservative politics – and Lord Wrenbury, who was not a Lord of Appeal in Ordinary but who sat on an occasional basis in the House of Lords. They all delivered judgments overturning the Court of Appeal in the Poplar and Bethnal Green cases.78 Lord Buckmaster – who had already expressed adverse views on Poplarism in the press79 – held that the councillors had not fixed a wage by reference to the value of work done but had fixed an arbitrary sum, and had not therefore exercised their statutory discretion at all. Lord Carson reached a similar conclusion. Lord Sumner “could find nothing in the Acts . . . which authorises [the councillors] to be guided by their own personal opinions on political, economic or social questions in administering the funds which they derive from levying rates”: the considerations of “policy” which were the councillors’ concern were matters such as “the necessity for a urinal and the choice of its position” and they should not visit the pockets of the ratepayers with the “effects . . . of honest stupidity or unpractical idealism”.80 Lord Wrenbury held that any payment above the market rate for the work done was a gratuity and not wages, criticising Scrutton by 75

76 77

78 79

(1925) 40 T.L.R. 769. There was also a challenge to a surcharge of Woolwich councillors which was heard after the decision of the House of Lords in Roberts v. Hopwood and failed at every stage: see The Times, 19 November 1925, 16 April 1926, 25 June 1926 and 24 May 1927. Janine Booth, Guilty and Proud of It!, p. 109. Roberts v. Hopwood, [1925] A.C. 578. It is clear that the Poplar Board of Guardians – who stood in a similar position to the council – had themselves considered appealing to the House of Lords, having, as they put it, “won on the facts of the case and in the judgment given may be said to have lost on the legal question”. NA/MH/68/237, memorandum of telephone conversation of 30 July 1924. Roberts v. Cunningham, The Times, 8 December 1925; (1925) 42 T.L.R. 162. 80 The Times, 22 February 1924. At pp. 606–7.

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suggesting that he “would have been right if he had correctly applied to the facts some of the principles which he had stated”.81 Lord Atkinson delivered what has become a notorious example of reactionary judicial reasoning, referring to the councillors having become “such ardent feminists as to bring about, at the expense of the ratepayers . . . sex equality in the labour market”.82 He held that the statutory power to fix wages was limited to one to fix reasonable wages, and that the councillors had acted wrongly in allowing themselves to be guided by “some eccentric principles of socialistic philanthropy or by . . . feminist ambition”. Harold Laski was highly critical of the judgment, describing Sumner’s reference to urinals as “almost unique as an example of misplaced judicial levity”,83 and the decision as one which would persuade even those who did not sympathise with Poplarism that “the House of Lords cannot be expected to approach an economic problem in a judicial spirit” and that the “court holds itself free to check economic solutions of which it happens to disapprove”. In a letter to Oliver Wendell Holmes, Laski linked Sumner’s judgments with his increasingly “die-hard” Conservative speeches in House of Lords debates.84 The Lords’ decision received a sarcastic response in Poplar: Lansbury’s Labour Weekly contrasted the Lords’ salaries with their view that Poplar was paying employees more than their worth, suggesting that “it needed high moral courage to announce to the world your profound conviction that any one of you was worth thirty ordinary men. Except of course poor Wrenbury who is only worth fourteen ordinary men”. However, on 9 April 1925 the council passed a resolution reluctantly accepting the need to bring wages in conformity with the House of Lords decision.85 By contrast, the Borough of Poplar Chamber of Commerce congratulated the minister of health on “the courageous stand you are taking in the interests of reasonable expenditure and in the effort you are making to obtain a real sense of local responsibility . . . to those who have to meet the ever-increasing demand for rates”.86 The historical verdict on the House of Lords decision has generally been critical. One exception is Antony Lentin, in his biography of Lord Sumner, who describes Harold

81 83 84 85

86

82 At p. 616. At pp. 591–2. Harold Laski, “Judicial review of social policy”, p. 842. Laski to Holmes, 30 May 1926, Holmes–Laski Letters, Vol. II, p. 844. Branson, pp. 218–19. The Poplar Board of Guardians also revised their wages; see the letter of 10 August 1925, NA/MH/68/237. Letter of 9 October 1925, NA/MH/68/237.

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Laski’s criticisms of Sumner’s judgment as “empty charges”, expressions of “virtuous indignation”, and the action of the councillors as “unreasonable by any reckoning”.87 Scrutton and Sumner’s careers at the Bar and on the Bench have frequently been compared, both contemporaneously and in retrospect, and often to Sumner’s advantage. However, Roberts v. Hopwood is one context in which direct comparison of their perceptions of the judicial function is possible, and the comparison is undoubtedly favourable to Scrutton.

8.4

The Russian Revolution

The English courts in the 1920s had to address a number of legal difficulties flowing from acts of nationalisation – or expropriation – of pre-revolutionary property and businesses by the post-revolutionary government in Russia, and Scrutton played a leading role in their resolution. In the aftermath of the disastrous Allied intervention in Russia in support of counter-revolutionary forces, the British government had been slow to recognise the new regime, but a Russian trade delegation under Mr Krassin was received in 1920 and recognised by the Foreign Office as representing the Soviet government for certain purposes. The effect of that recognition fell to be considered in Aksionairnoye Obschestvo Dila Mechaniches-Koyi Obrabotky Dievera A.M. Luther v. James Sagor.88 The claimant was a Russian company with a sawmill whose property was subject to possession and confiscation by agents of the Soviet government in 1919 acting on the basis of a decree made on 20 June 1918. The following year, Mr Krassin and the Soviet trade delegation sold a quantity of that confiscated timber to the defendant, who imported it into England. Luther sued Sagor to establish its ownership of the timber, succeeding before Roche J on the basis that as the British government did not recognise the sovereignty of the Soviet government, the court would not recognise its decrees as affecting title to the timber. The Soviet government was disconcerted by the judgment, informing Lord Curzon that confirmation of the judgment by “a higher court” would render “the trade agreement unworkable and would be, therefore, a lawful ground for its immediate automatic annulment”.89 An appeal was brought before Scrutton, Bankes and Warrington, and between the first-instance judgment and the hearing of the appeal, the British 87 89

88 Lentin, pp. 176–80. [1921] 3 K.B. 552. The letter is summarised in The Times, 9 February 1921.

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government had moved to a position of de facto – but not de jure – recognition of the Soviet government. The court held that the effect of the Foreign Office’s recognition of the de facto status of the Soviet government, together with its statement that the Soviets had expelled the previous Provisional Government in 1917, bound the court to recognise the 1918 decree and the 1920 sale “as acts of a sovereign state the validity of which cannot be questioned by the Courts of this country, unless it is possible to do so for the second reason argued before us, incompatibility with the moral and political policy of the United Kingdom”. Scrutton left open the question whether such de facto recognition could operate retrospectively. He then turned to the argument that the 1918 decree should not be recognised as “confiscatory and unjust” and disposed of the argument in a typically pragmatic and persuasive piece of reasoning, noting that the serious breach of international comity which would be involved in recognising a state but not its legislation would be “contrary to essential principles of justice and morality” and suggesting that in relation to a recognised state this should be the responsibility of the sovereign. He noted that the court would give effect to English legislation which expressed an intention to expropriate property without right of compensation, and can hardly be more rigid in their dealings with foreign legislation. Individuals must contribute to the welfare of the state, and at present British citizens who may contribute to the state more than half their income in income tax and super tax, and a large proportion of their capital in death duties, can hardly declare a foreign state immoral which considers (though we may think wrongly) that to vest individual property in the state as representing all the citizens is the best form of proprietary right.90

Scrutton delivered the leading judgment in a later case brought by the widow of Grand Duke Paul of Russia to recover property confiscated by the Soviet government and sold to buyers in England.91 The Soviet government had been recognised as the de jure government by the British government in February 1924, and Scrutton gave retrospective effect to the recognition on the ground that the acts of confiscation had themselves been adopted as an act of state by a recognised foreign government. He relied on a number of US authorities, noting that the problem had frequently arisen in the courts of that country “situate 90

91

In The Porto Alexandre, [1920] P. 30, at p. 38, Scrutton suggested that “the fashion of nationalisation is in the air”. Princess Paley Olga v. Weisz, [1929] 1 K.B. 718.

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in the neighbourhood of South and Central American Republics, where the life of any Government is precarious and its death rarely by natural causes”. Other problems arose in determining the status of foreign branches of Russian companies which had been nationalised or liquidated by Soviet legislation. In the Mulhouse case, securities had been deposited with the London branch of a Petrograd bank as security for a loan made by the French bank to that bank. The London branch had repaid the debt, but the French bank had refused to redeliver the securities, contending that the Petrograd bank had ceased to exist as a result of Soviet legislation and could not give a good discharge for the securities.92 In the Goukassow case, a loan had been obtained from the Paris branch of a St Petersburg bank to secure a loan. A decree of 1917 had brought the activities of the St Petersburg bank to an end, but the Paris branch had sued the debtor in England on the loan.93 Appeals in both cases were heard by Scrutton, Bankes and Atkin, and in each case they ruled that the effect of the Soviet decrees in question was that the Russian corporations had ceased to exist for all purposes, and were therefore unable to bring proceedings in the English courts. Scrutton’s decision reflected his construction of the Soviet legislation in question. In the Mulhouse case, the claimant was acting in conjunction with creditors of the Russian bank. Scrutton accepted that “the claims of English creditors to be paid their just debts due from the Russian Bank out of assets originally the property of the Russian Bank must be viewed with sympathy by English Courts”, but warned that “the sympathy must not lead the English Courts to strain or pervert the legal principles they administer in order to produce a result favourable to English citizens”. Atkin dissented, holding that the extinctive effect of the Soviet legislation was insufficiently clear. In Goukassow, Atkin began his judgment by stating that “this case illustrates the fantastic and I may add deplorable effect of a decision that the Soviet Government decrees in December, 1917, and January, 1918, have dissolved the existing Russian banking corporations”. His dissents were upheld in the House of Lords, who relied on the conflicting evidence of the pre-revolutionary Russian lawyers who had given evidence to find that the effect of the

92

93

Russian Commercial & Industrial Bank v. Le Comptoir d’Escompte de Mulhouse, [1923] 2 K.B. 630. Banque Internationale de Commerce de Petrograd v. Goukassow, [1923] 2 K.B. 682.

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Russian decree was insufficiently clear, and in effect reversed both Court of Appeal decisions on an issue of fact in the English creditors’ favour.94 Scrutton remained unpersuaded. When a similar issue arose in Sea Insurance Co. v. Rossia Insurance Co. of Petrograd,95 he noted, I think it may be safely said that whatever Courts outside Russia may say as to the effect of the Soviet laws, the chance that any of these companies would be recognised in Russia by the Russian Government or its Courts as having any existence or any powers is not very great.

He was “not very much impressed by the opinions of the pre-Soviet lawyers on the effect of Soviet legislation on the pre-Soviet system; and I do not suppose they think their opinions would be accepted in Russia at present”, but felt obliged to follow the decisions of the House of Lords even on the effect of the legislation. Emboldened in Lazard Brothers & Co. v. Banque Industrielle de Moscou,96 he found on the evidence in that case that the Moscow bank had ceased to exist, and distinguished the Mulhouse decision, suggesting that there was “considerable misapprehension” as to what the case decided, and placing particular weight on the evidence of an expert who had actually practised law under the Soviet system. On this occasion, at least in this respect, he was upheld in the House of Lords.97

8.5

The judiciary and the executive

Stanley Baldwin famously described the members of the Coalition Parliament elected in December 1918 as “a lot of hard-faced men who looked as if they had done very well out of the war”.98 The arrogance which wartime government had inculcated in governmental circles – in men who had become accustomed to taking decisions without regard to their slender claims to legality, confident in the acquiescence of the public and the supine attitude of the judiciary if there was a subsequent challenge – did not disappear with the Armistice, but was one of many hangovers of war which scarred the troubled peace. Among Scrutton’s greatest achievements was to symbolise, and to help to effect, a return to judicial rectitude. The Manchester Guardian observed of one Scrutton judgment of this period, 94

95 98

Banque Internationale de Commerce de Petrograd v. Goukassow, [1923] 2 K.B. 682, [1925] A.C. 150; Russian Commercial & Industrial Bank v. Le Comptoir d’Escompte de Mulhouse, [1925] A.C. 112. 96 97 (1924) 20 Lloyd’s Law Rep. 308. [1932] 1 K.B. 617. [1933] A.C. 289. Quoted by John Maynard Keynes, The Economic Consequences of the Peace (1920), p. 63.

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If you study the judgments of our law courts during past periods of strong political emotion and stress you will find that, as a whole, the curve of judicial opinion generally follows, though with moderation, the curve of Governmental policy or of national passion . . . the same law in its hands tending at different periods to be interpreted in a more libertarian or in a more authoritarian spirit, according to the dominant attitude of the spirit of the circles in which the judges live. The judgment given yesterday suggests that in judicial circles the wind is still blowing in the authoritarian direction, but with less force than during or after the war and with a tendency to back, as the weather reports say, to the liberty of the subject. In such periods the instinct of history usually picks out for commendation later those judges, usually a minority, in whom the spirit of strict and unbending legalism forbids any concession to non-legal ingredients in the atmosphere of the day. So it may be that in a few years, Mr Justice Scrutton’s dissenting judgment will be picked out as a typical example of the fastidious independence of the best English justice.99

8.5.1 Brady and O’Brien: Regulation 14B The case referred to was R. v. Inspector of Cannon Row Police Station ex parte Brady,100 in which Patrick Brady, an Irishman resident in Britain who was suspected of membership of the IRA, sought to challenge an order deporting him for internment in (pre-independence) Ireland.101 The order was made under Regulation 14B of the Restoration of Order in Ireland Regulations (ROIR) – a modified form of the Defence of the Realm Regulations, passed under the Restoration of Order in Ireland Act 1920 (ROIA). The ROIA was passed by the Coalition Government in response to the rebellion against British rule in the south and west of Ireland. The use of Regulation 14B for these purposes was highly controversial: the ROIA had been passed as a response to conditions in Ireland, which made the administration of the ordinary law there impossible but was now being used as a means of detaining, without trial, individuals resident, and arrested, in Britain who were suspected of criminal activities committed here, and deporting them to Ireland. The Cabinet had been advised that “in the opinion of the Law Officers, Regulation 14B of 99 101

100 Manchester Guardian, 26 July 1920. (1921) 125 L.T. 344. For the campaign by IRA or Irish Volunteers in Britain in support of Irish independence and the response of the British government, and an account of the Brady case, see David Foxton, Revolutionary Lawyers: Sinn Fein and Crown Courts in Britain and Ireland, 1916–1923 (2008), Chapter 6.

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the Restoration of Order in Ireland Regulations is ultra vires, so far as it purports to authorize internment and treatment as prisoners of war outside of Ireland”,102 although when the issue was raised by Thomas Griffiths MP in Parliament in the context of the 1921 detentions, the Home Secretary stated that it had not been thought necessary to consult the Law Officers on the legality of the detentions.103 An internal Home Office memorandum produced in June 1921 noted that “the territorial application of the ROIR is a rather delicate matter”,104 whilst in the same file a letter from the Home Office records that “the Law Officers when dealing with these Sinn Fein questions advised that proceedings such as those against Brady should be taken under the English Dora and not under the Irish Act”.105 The Irish Republican movement in Britain had also turned its mind to the legality of detention orders made against those resident in Britain, and they obtained an opinion from counsel, Sir John Simon KC and Joshua Casswell, who advised that the detentions were illegal and that a test case should be brought.106 For fear that the Home Secretary might respond to a writ of habeas corpus by contending that the detainee was no longer in his control, a decision was made “to find an intended internee after the internment order had been served on him and before he had been sent to Ireland”.107 The internee in question was Edward Brady. Writing some forty years later, Casswell described Brady as “a frank, open-faced Irish youth of eighteen who had lived in this country for five years and taken no part in Sinn Fein activities”. He had evidently not read his former client’s autobiography, published in 1928 and entitled Ireland’s Secret Service in England, the only published account by an IRA activist involved in the British campaign.108 Brady was arrested for IRA activities in Liverpool,109 and the Home Secretary made a Regulation 14B order at the request of the local police force. Before Brady was shipped to Ireland, the solicitor representing Republican interests in England arranged for him to swear an affidavit

102 103

104 106 107 108 109

NA/CAB/4/125 CP3082, Cabinet paper of 25 June 1921. 10 March 1921, cols. 682–3; 6 June 1921, cols. 1507–8; 14 June 1921, cols. 208–9; and 20 June 1921, col. 900, in response to questions from Captain Wedgwood-Benn. 105 NA/TS27/140. Letter of 24 June 1921. For the opinion of 3 March 1921 see Hugh Kennedy papers, UCD P4/151. See J.D. Casswell, A Lance for Liberty (1961), pp. 46–7. E.M. Brady, Ireland’s Secret Service in England (1928). “Secret” memorandum to the Attorney General in NA/TS27/140.

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challenging his internment and asserting that he was not “of hostile origins and associations”. The divisional court –A.T. Lawrence, Shearman and Sankey – rejected the habeas corpus application. They had been assured by Sir Gordon Hewart, the Attorney General, that the issue was academic because Brady was shortly to be tried in Liverpool for his criminal conduct in any event. The court rejected the submission that the ROIA only authorised action to be taken in Ireland and not in England,110 and held that Regulation 14B was intra vires the ROIA in reliance on the “Henry VIII” clause in the Act providing that the regulations made under the ROIA would take effect as if set out in the Act. Brady was then tried for various criminal offences in Liverpool, where he defended himself and, much to his own surprise, was acquitted. Brady was then shipped to Ballykinlar internment camp in Ireland on 2 July, but this did not prevent the Republican movement in Britain bringing an appeal. That appeal was heard by Bankes, Scrutton and Warrington. Bankes and Warrington upheld the judgment, but Scrutton delivered a coruscating dissent. After noting that his brethren agreed as to the spirit in which the case should be approached, namely with an anxious regard for the liberty of the subject, he observed, “Where I begin to differ with my brothers is that they approach this statute to find any reasons why England should not be included. I approach this statute to find clear words to show that England is included.”111 He castigated the wholesale adoption of the DORR under the Irish Act – “why they thought it was necessary to put in for the restoration of order in Ireland a regulation providing for the securing for the food supply of the country any migratory kind of wild bird, as they have done in 2R . . . I am quite unable to conceive”. He could find no language to support the application of the statute to England – why, he asked, should the Act contain express provision for the regulations made thereunder to apply “either generally to the whole of Ireland or to any part thereof” if the Act gave power to create regulations which applied to England as well. He also rejected the reliance on the Henry VIII clause, claiming it could not validate regulations which went beyond the purpose of the Act.112 Brady remained in custody in Ireland until released after the conclusion of the 110 111 112

[1921] 125 L.T. Rep. 344; (1921) 37 T.L.R. 855. (1921) 37 T.L.R. 75; 91 L.J.K.B. (N.S.) 98. Scrutton refused to allow this legislative device to defeat the court’s power to determine that delegated legislation was ultra vires and he repeated his view in Attorney-General v.

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Anglo-Irish Treaty of December 1921.113 In 1923, when the Treasury Solicitor was asked if Brady was worth pursuing for outstanding costs, he replied, “one would imagine that he having been deported to Ireland and his internment now being ended he is probably forming a unit of the Irish Republican Army”. The debt was finally written off in March 1926. Had the Crown waited but two years more, they could have levied execution against the profits of Brady’s memoirs. In the minority on this occasion, Scrutton was able to revisit the issue, this time in the company of Bankes and Atkin, when Regulation 14B was relied upon once more to deport Irishmen resident in England for internment in Ireland – on this occasion, to the independent Irish Free State established by the Anglo-Irish Treaty of December 1921, the deportations of anti-Treaty Republicans taking place at the request of the Free State government.114 The British government had been considering for some period how to assist the Free State government in this regard, and, perhaps encouraged by the Brady decision, alighted once more on Regulation 14B.115 A senior civil servant in the Home Office, Harold Scott, recalled being told by Sir John Anderson that the Home Secretary, William Bridgeman, had authorised the arrest and deportation of about eighty Irish “extremists” under Regulation 14B, Anderson remarking with his customary prescience that “there’s bound to be a fuss over this”.116 Anderson, it seems “expressed grave doubts about the result”, but Sir Douglas Hogg, the Attorney General, “pooh-poohed our fears and assured the Home Secretary that there was nothing to worry about”. The precise terms of Hogg’s advice are unclear.117 He later told .

113 114 115

116 117

Great Southern & Western Railway Co., [1924] 2 K.B. 450, at p. 478. The effect of such clauses was a matter of judicial controversy at this time. The House of Lords had given an indication of a readiness to uphold such provisions in Institute of Patent Agents v. Lockwood, [1894] A.C. 347, before concluding that such clauses did not preclude a judicial determination of vires in R. v. Minister of Health ex parte Yaffe, [1931] A.C. 494. Ironically, Sir Gordon Hewart KC, the author of the Act and its defender in Brady, became one of the foremost critics of this legislative device: Lord Hewart CJ, The New Despotism (1929), pp. 45–6. Brady, Ireland’s Secret Service in England, p. 120. For the Irish deportations of 1923 see Foxton, Revolutionary Lawyers, Chapter 7. Sir William Bridgeman, the Home Secretary, told the Commons, “we have for sometime past been in consultation with the Free State Government as to the best method of dealing with the situation”, and this “seemed on the whole, after full consideration, the simplest and most effective way of dealing with these persons”. HC Deb., 12 March 1923, col. 1044. Harold Scott, Your Obedient Servant (1959), pp. 49–52. There was a favourable opinion from at least the Attorney General: see HC Deb., 17 May 1923, col. 656, and possibly from the Solicitor-General as well (Viscount Novar,

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the House of Commons that Bridgeman’s plan of action met with his “entire and unqualified approval”,118 although there are indications that the view he actually expressed was more equivocal.119 The orders were executed across the country in the early hours of 11 March. There were about 116 deportees.120 They were taken to police stations, then sent by special trains (or, in the case of Manchester detainees, police van) to Liverpool. From there, they were shipped by naval cruiser to Dun Laoghaire, and then by destroyer to the North Wall near Dublin. And here lay the fundamental difficulty with the course which the British government had adopted. A regulation authorising internment without trial made by and subject to revocation by the British Home Secretary had been used to deport British subjects to another country, where they were held in prisons administered by another government (that of the Irish Free State) answerable to another parliament (the Dáil). Thereafter both the British government and the detainees prepared for the inevitable legal challenge. On 27 March 1923, the British government enacted an Order in Council – the exercise by the executive of a delegated power of legislation – under the Irish Free State Consequential Provisions Act 1922 in an effort to bolster its legal position. The Act, passed on 31 March 1922, empowered the making of Orders in Council to “make such adaptions of any enactments so far as they related to any of His Majesty’s Dominions other than the Irish Free State as may appear . . . necessary or proper as a consequence of the establishment of the Irish Free State”: in effect a power to make “tidying-up” amendments to reflect the fact that Ireland (the six counties apart) was no longer part of the United Kingdom, but a self-governing dominion. The Order in Council provided that any reference in “existing legislation to the United Kingdom”, “the United Kingdom of Great Britain and Ireland”,

118

119 120

Secretary of State for Scotland, HL Deb., 24 April 1923, col. 841). Mr Bridgeman told the House of Commons, “I have taken legal advice on this issue and I am assured that I am acting within my rights”. HC Deb., 12 March 1923, col. 1046. HC Deb., 12 March 1923, cols. 1192–3, in which he implied that the Solicitor-General had also approved the deportations. Sir Mark Sturges to Loughnane of the Colonial Office, 16 March 1923, NAI/S2156. Conflicting figures have been given. Scott suggested eighty orders and Michael Hopkinson, Green against Green: The Irish Civil War (2004), p. 255, refers to 160 orders. In both Parliaments the figure given is 110. HC Deb., 19 March 1923, cols. 2146–7; HL Deb., 24 April 1923, col. 840; and in Ireland DE, DD, 20 March 1923, answer by President Cosgrave.

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“the British Islands” or “Ireland”, or similar expressions, were to be construed as not including the Irish Free State, save for those specific statutes listed in the schedule where such expressions would continue to embrace the Free State. The schedule included the Restoration of Order in Ireland Act 1920, an Act passed for securing the restoration and maintenance of order in Ireland, which gave power to make regulations which “may apply generally to the whole of Ireland or any part thereof”. It was Regulation 14B, enacted pursuant to the authority conferred by that Act, which had given the power to detain a person “in any place in the British Islands”. The clear intention of the Order in Council was to forestall any legal argument that the ROIA, or the regulations passed thereunder, should no longer be construed as extending to the Free State or authorising detention there. The reference to the ROIA was inserted into a draft of the Order in Council at some point after 27 February 1923.121 On 23 March 1923, an ex parte application was made by Art O’Brien, who had been Sinn Fein representative in Britain and the most prominent anti-Treaty Republican there, to the Divisional Court for a writ of habeas corpus.122 O’Brien was represented by Patrick Hastings KC, now a Labour MP. It had not been possible to obtain an affidavit sworn by O’Brien in the time available, and the application was supported by an affidavit sworn by O’Brien’s sister, Geraldine. However, the divisional court – Avory and Salter JJ – refused to hear the application in these circumstances.123 O’Brien’s unlawful detention was, therefore, prolonged whilst an affidavit was obtained from Mountjoy Prison in Dublin, and a fresh application was made on 10 April 1923. The basis of the legal challenge was that the passing of the Irish Free State Constitution Act 1922, bringing into existence a new executive responsible to its own Parliament for the maintenance of law and order in the twenty-six counties of the Irish Free State, had abrogated the ROIA and the regulations made thereunder. The application was heard by the Lord Chief 121

122

123

There is no reference to the ROIA in a draft of the Order of Council of that date in NA/ HO267/73, and so it must have been inserted thereafter. A note of 13 March 1923 seeking the comments of the Northern Ireland Government stressed it was “important to get the Order made as soon as possible”. For documents relating to the action see House of Lords Case Papers in HL/PO/JU/4/3/ 741, where there is a full transcript of the Divisional Court judgment. It is also briefly reported at (1923) T.L.R. 413. See reports of the application in the Evening Standard of 23 March and The Times of 24 March 1923.

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Justice, now Lord Hewart, sitting with Mr Justice Roche and Mr Justice Avory. As Attorney General, Hewart had been closely involved in the previous Coalition Government policy in Ireland and had also advised the Government that Regulation 14B remained in force after the coming into existence of the Provisional Government in Ireland.124 Hewart found O’Brien’s case so deficient in merit that he would not even issue a rule nisi requiring the Crown to attend to justify the detention. However, O’Brien’s legal team were not deterred: the application was renewed to the Court of Appeal on 13 April 1923. That court issued a rule nisi requiring the Crown to attend and justify the legality of the detention. Sir Douglas Hogg, the Attorney General, for the Crown, submitted that the writ of habeas corpus was not available because the Home Secretary no longer had control of the detainees.125 These arguments were supported by an affidavit from Home Secretary Bridgeman stating that information he received showed O’Brien to be “one of the ring leaders” of “a dangerous and widespread organisation which was acting in conjunction with armed forces in Ireland in rebellion against the Irish Free State”, and that O’Brien . . . is in the custody and control of the said Governor of the said Prison. The said Governor is an official of the Free State Government and is not subject to the orders and directions of myself or the British Government.

Hogg submitted that the creation of the Free State made no difference to the application of the 1920 Act and he also relied on the terms of the Order in Council of 27 March 1923 to support the argument that the 1920 Act and the Regulations thereunder authorised detention in the Free State. Indeed, on the Friday before the hearing began on the Monday, a further Order in Council had been passed stating that the reference to the 1920 Act in the previous Order in Council was to include the regulations made thereunder.126 In a unanimous judgment, the court ordered the Home Secretary to produce O’Brien from what was found to be unlawful detention. Scrutton’s judgment was a tour de force. He observed that “it is quite possible, even probable, that the subject in this case is guilty of high 124 125 126

NA/HO45/19665, note to Sir John Anderson. [1923] 2 K.B. 361; (1923) 129 L.T. Rep. 419; 92 L.J.K.B. (N.S.) 797. Three copies of this Order in Council were rushed by the Clerk of the Privy Council to the Treasury Solicitor on 21 April 1923: see Almeric Fitzroy’s letter to the Treasury Solicitor in NA/TS/27/177.

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treason”, but noted that “it is indeed one test of belief in principles if you apply them to cases with which you have no sympathy at all”. He once again condemned the wholesale incorporation of DORRs passed to meet the exigencies of total war into a statute intended to provide for law and order in Ireland – “Why these regulations were ever enacted in this lazy and unintelligent way I do not understand”127 – and held that the “regulations only justified internment in places where the person ordering internment could control the internment, its conditions and its determination”. In any event, the making of such an order was inconsistent with the creation of an Irish executive with exclusive executive jurisdiction within its territory. He was also scathing about the recent Orders in Council: the statute under which they purported to have been made did not give power to adapt enactments so far as they related to the Irish Free State, but only enactments so far as they related to dominions other than the Free State: “it would probably startle the Irish Free State Government”, he noted, “to know that His Majesty’s Ministers claim that the King on the advice of his British Ministers may by Order in Council impose regulations having the force of statute on the Irish Free State”. As to the 21 April regulation, It is perhaps beyond the function of His Majesty’s judges to criticise the advice which His Majesty’s Ministers give to His Majesty as to the issuing of Orders in Council, but it may be permissible to say respectfully that it adds a new terror to litigation with Government officials if they can make Orders in Council, while a case is being argued, to assist their argument.

Finally, contrasting the terms of Bridgeman’s affidavit denying control with his statement to Parliament that “we have complete control over the position in which the internees are placed”, he observed, on this conflicting evidence, all proceeding from the Home Secretary himself, it appears to me quite doubtful whether or not, if an order is made for the production of the body, the Home Secretary can or cannot produce the body.

127

The answer appears to have been haste and over-caution. A Home Office memorandum produced in 1920 observed, “Many of the existing DRR might possibly have been omitted from incorporation into the ROIR but the first order had to be made under great pressure and the Irish Solicitor-General and Chief Crown Solicitor were opposed to the omission on the ground that some useful power or remedy might be overlooked and that any omission of a conceivably necessary regulation might have disastrous consequences whilst its inclusion would do no harm”. NA/TS27/140.

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In these circumstances, the correct course was to make the order and see what happened. Shortly after the appeal, Sir John Sankey – who had been overruled at first instance – invited a a number of judges, including Scrutton and Atkin, to dinner. Harold Laski was among the guests and he reported on the occasion to Oliver Wendell Holmes: A good dinner, too, with Sankey to meet three or four judges of whom Atkin and Scrutton struck me as the best. They had just worked off the great decision in Ex parte O’Brien about which I felt great joy.128

The Crown sought to appeal to the House of Lords. One difficulty was that no appeal ordinarily lay against an order of a writ of habeas corpus because the right to personal liberty should not “be subject to the delay and uncertainty of ordinary litigation” .129 The Attorney General had asked the court to allow a twenty-eight-day period within which to produce O’Brien, so that an appeal could be brought to the House of Lords in the meantime, but Scrutton had informed him that “on our judgment, you are illegally detaining a man. There is some presumption, perhaps not much, that the Judgment of the Court is right”. On 10 May 1923 an order was sealed requiring the Home Secretary to produce O’Brien before the Court of Appeal on 16 May 1923. The House of Lords acceded to the Crown’s request to expedite the hearing,130 which was heard on 14 May, two days before the return day in the Court of Appeal. However, they rejected the appeal on the threshold issue that no appeal lay in a habeas corpus case, even if the appeal was heard before the writ had been executed.131 The Earl of Birkenhead delivered a witty and scathing judgment, describing the argument that a right of appeal lay provided the presumptively illegal detention was prolonged until after the appeal was heard as one of the most remarkable which I have either heard or read from the lips of the Executive in attempting to pronounce upon the liberty of the subject. A dog is still limited to a single bite. The Home Secretary, more happily provided for, can obtain an appeal, otherwise denied him, by two.132 128 129 130

131 132

Laski to Holmes 18 May 1923, Holmes–Laski Letters, Vol. I, p. 501. Cox v. Hakes 15 App. Cas. 503, at p. 522. An application was made for expedition on 10 May, and directions were given for cases to be served on Saturday 12 May. Treasury Solicitor’s memorandum in NA/TS/27/177. [1923] A.C. 608; 129 L.T. Rep. 577; 92 L.J.K.B. (N.S.) 83. Following the hearing, those found to have been unlawfully detained issued writs of praemunire against the Home Secretary for breaching the Habeas Corpus Act 1697.

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8.5.2 Wiltshire Dairies: taxation by the executive Regulation 14B was not the only occasion on which Scrutton had to address the constitutionality of wartime powers being used for very different purposes after hostilities had ceased. Various statutes and a plethora of DORRs had been passed to address the consequences of the German submarine campaign. There were orders fixing the maximum price of foodstuffs and regulations precluding hoarding and requisitioning of foodstuffs in private hands, and finally a new Government minister – the Food Controller – was given power “to regulate the supply and consumption of food”.133 There were similar measures to ensure Government control of British shipping – regulating the disposition of tonnage, and the rates at which cargoes would be carried and the sale and purchase of ships – with powers vested in the Shipping Controller.134 By the end of the war, these “new ministries” had almost completely displaced the market mechanisms. By 1918, 85 per cent of all food consumed in Britain was purchased by the Food Controller and 95 per cent of all consumed food was subject to a maximum price.135 Some 90 per cent of imported goods were shipped and transported under arrangements fixed by the Government, and 96 per cent of those goods shipped at rates fixed by the Government.136 The vast majority of these measures were unwound over a three-year period following the Armistice,137 but they enjoyed a strange half-life in the interim. One of the Food Controller’s powers was to grant licences permitting the purchase of milk under the Milk (Registration of Dealers) Order and the Milk (Distribution) Order, and in 1919 the Food Controller decided to make it a condition of such licences when milk was purchased in a

133

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135 136 137

An indemnity act – the Restoration of Order in Ireland (Indemnity) Act 1923 – was passed, which constituted a tribunal to award compensation chaired by Sir James Atkin. These events are described in Foxton, Revolutionary Lawyers, Chapter 7; and Porter Chandler, “Praemunire and the Habeas Corpus Act: considered in connection with the Irish Deportations and the case of Ex Parte O’Brien” (1923) Colombia Law Review 273. Section 3 of the New Ministries and Secretaries Act 1916. For histories of food control during the Great War see W.H. Beveridge, British Food Control (1928); and F.H. Coller, A State Trading Adventure (1925). Section 6 of the New Ministries and Secretaries Act 1916. For the control of shipping in the Great War see C.E. Fayle, History of the Great War: Searborne Trade, 3 vols. (1920–4); J.A. Salter, Allied Shipping Control (1921). Beveridge, British Food Control, pp. 56–7. H.J. Dyos and D.H. Aldcroft, British Transport (1969), p. 280. R.H. Tawney, “The abolition of economic control, 1918–1921” (1943) 13 Economic History Review 1.

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more productive area for sale in a less productive area that the sum of two pence a gallon be paid to the Controller. The Wiltshire United Dairies Ltd agreed to meet this condition in order to obtain licences, but when sued for payment challenged the demand as ultra vires the power of control because it amounted to an unlawful tax. They failed before Bailhache J,138 but succeeded before Bankes, Scrutton and Atkin in the Court of Appeal.139 Scrutton said that clear words were required before the court would conclude that Parliament had delegated its power of taxation to the executive, and that the demand in this case impinged the Bill of Rights prohibition against “levying money for the use of the Crown without grant of Parliament”: It is true that the fear in 1689 was that the King by his prerogative would claim money; but excessive claims by the Executive Government are, at the present time, quite as dangerous and require as careful consideration and restriction from the Courts of Justice.

The decision was upheld in the House of Lords.140 The Shipping Controller had made similar demands when granting licences for the sale of British ships, demands which Scrutton held to be similarly unlawful, although the Government made every effort to impede claims to recover money which had been paid for such licences. The liabilities and responsibilities of the Shipping Controller were transferred on the abolition of that office to the Board of Trade, a body which functioned as a Government department but was technically constituted by the holders of various unlikely offices. In Marshal Shipping Co. Ltd v. Board of Trade,141 the Crown took the technical objection that the board could not be sued as a single entity. Scrutton allowed the objection, but criticised the Crown’s approach:142 I personally feel that the whole subject of proceedings against Government departments is in a very unsatisfactory state. I feel that it is of great public importance that there should be prompt and efficient means of calling in question the legality of the action of Government departments which, owing to the great national emergencies arising out of the war, have been inclined to take action that they considered necessary in the interests of the State without any nice consideration of the question whether it was legal or not, and I hope that the committee which is 138 139 140 141

(1921) 37 T.L.R. 296. Attorney-General v. Wiltshire United Dairies Ltd, (1921) 37 T.L.R. 884. Attorney-General v. Wiltshire United Dairies Ltd, (1922) 38 T.L.R. 781. 142 [1923] 2 K.B. 343. At p. 352.

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at the height of his powers: 1919–1927 now considering the question of proceedings against the Crown will be able to give the subject more effective remedies against Government departments than he has at present.143

In a later case, the action failed because it had not been brought within the limitation period prescribed by the Indemnity Act 1920. Scrutton noted the undoubted illegality of the demand.144 He upheld the time bar defence, but not without strong criticism of the Crown, both for its arguments – “it does not seem a very creditable position for the Crown by its advisers to take up” – and for the outcome: “I regret that the petitioners who, in my view, have suffered a wrong at law, should be deprived of their remedy by misunderstanding of the obscure language of the Indemnity Act, and I may be permitted to regret that the Government in these circumstances should keep money illegally obtained, but I can do no more than regret”.145

8.5.3 Judicial champion It is Atkin, rather than Scrutton, who has survived to subsequent generations of lawyers as the champion of judicial independence in the face of an over-mighty executive – a reputation largely founded upon his dissent in the Second World War internment decision of Liversidge v. Anderson.146 Atkin’s achievement was considerable, but Scrutton’s own status as a judicial champion is equally worthy of recognition. In an article in 1927, The Times compared two recent judgments of the Court of Appeal. The first was a case in which Scrutton had refused to treat a 143

144

145

146

His comments were referred to in Parliament: see HC Deb., 17 April 1923, col. 1891; 18 April 1923, col. 2028; 5 May 1924, col. 176; 21 May 1924, col. 2282. T.J. Brocklebank v. King, [1925] 1 K.B. 52, at p. 67. Again, the comments of “a very distinguished judge” were cited in the House of Commons: HC Deb., 4 August 1924, col. 2501. In a similar vein, he observed in Clan Line Steamers Ltd v. Board of Trade, (1928) 30 Lloyd’s Law Rep. 1, “I regret, therefore, so far as a Judge should regret his decision, to have to determine that the appeal must be dismissed, but I do not think the claimants have been well treated by the Government”. [1942] A.C. 206. For contributions to the Liversidge industry see C.K. Allen, Law and Orders (1945), pp. 242–51; R.F.V. Heuston, “Liversidge v. Anderson in retrospect” (1970) 86 L.Q.R. 33; R.F.V. Heuston, “Liversidge v. Anderson: two footnotes” (1971) 87 L.Q.R. 161; Lewis, pp. 132–57; The Rt Hon. Lord Bingham of Cornhill, “Mr Perlzweig, Mr Liversidge, and Lord Atkin”, lecture delivered at the Reform Club on 16 October 1997 and published as Chapter 3 of The Business of Judging: Selected Essays and Speeches (2000).

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declaration of the Foreign Office as to the diplomatic status of a consular secretary in the German Embassy as decisive: To say that a British subject, suing on a British contract, is to be deprived of his right to enforce his contract in a British Court, because a department of the Government holding an inquiry not on oath and at which the plaintiff is not represented has arrived at a conclusion that the defendant has immunity from process, and without being asked by the Court for information, instructs the Attorney-General to inform the Court of the conclusion at which the department has arrived, without the plaintiff ’s having an opportunity of questioning the decision or ascertaining the facts for himself, in my opinion is a most unsatisfactory position and not warranted by any authority . . . To do so would be to substitute a department of the Government for the Courts in a class of case where such substitution has never hitherto been recognized.147

The second was a decision in which Atkin had accepted the conclusiveness of a Home Office certificate in determining that a spot in the Bristol Channel where a collision had occurred was outside British territorial waters.148 Scrutton’s decision, The Times noted, “keeps alive the hope that the encroachments of an increasing bureaucracy may still be kept outside the proper domain of the judiciary”.149

8.6 “The finest commercial lawyer” For all his many achievements in other areas of law, it is as a commercial lawyer par excellence that Scrutton survives as a figure of legal substance, and that reputation was built on his contribution as an appellate judge to the development of the common law. It is difficult to do justice to the number and quality of Scrutton’s judgments in commercial appeals over this period: any survey soon degenerates into a name-checking of wellknown cases, whose worth is well known to those already acquainted with them and impossible to communicate to those who are not. It is perhaps unsurprising that shipping law still bears a heavy Scrutton footprint. His judgment in Brandt v. Liverpool Brazil v. River Plate Steam Navigation Co.150 has achieved the ultimate legal accolade of ceasing to be a mere authority and becoming a term of art. The elegant solution of a 147

148 150

Musmann v. Engelke, [1928] 1 K.B. 90 (the decision was overturned by the House of Lords: [1928] A.C. 433). 149 The Fagernes, [1927] P. 311. The Times, 30 July 1927. [1924] 1 K.B. 575.

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quantum meruit claim adopted in Stevens v. Bromley151 continues to provide an effective remedy to a shipowner who assents to a noncontractual order. The wartime heterodoxy on frustration of time charterparties was set to right in Larrinaga & Co. Ltd v. Société FrancoAméricaine des Phosphates de Medulla.152 Scrutton was among the first to recognise that the actual carrier of goods should benefit from the terms on which the goods had been bailed to the intermediate bailee, and under which it held the goods, in his dissenting judgment in Paterson Zochonis Ltd v. Elder Dempster,153 a principle which was upheld in the House of Lords154 but which waited another seventy years for a secure and principled foundation.155 His decision on the effect of illegality on a charterparty – Ralli Brothers v. Compania Naviera Sotar y Aznar156 – remains the leading authority on the effect of a foreign illegality on an English law contract. There were also important Scrutton decisions on the law of sale of goods. In Rowland v. Divall,157 the Court of Appeal rejected the contention of a seller who did not have title to the car that the buyer could not get his money back because he had the use of the car in the meantime. In British & Beningtons Ltd v. North West Cachar Tea Co. Ltd,158 the court addressed the position of a buyer who rejects goods for one reason and later seeks to justify that rejection on other grounds (holding that such a course was permissible). The “officious bystander” test for the implication of terms was essentially Scrutton’s creation, in Reigate v. Union Manufacturing (Ramsbottom) Ltd,159 albeit it is Mackinnon’s restating of Scrutton’s analysis in Southern Foundries (1926) Ltd v. Shirlaw160 which is better known. Of equal note are the judgments which did not carry the day, but proved a precursor to later developments in the law. In Universal Steam 151 152

153

154 156 158 159 160

[1919] 2 K.B. 722. (1922) 11 Lloyd’s Law Rep. 214, a decision which, despite an Atkin dissent, was upheld by the House of Lords: (1923) 14 Lloyd’s Law Rep. 457. [1923] 1 K.B. 420. See also Mersey Shipping & Transport Co. v. Rea, (1925) 21 Lloyd’s Law Rep. 375. 155 [1924] A.C. 522. The Pioneer Container, [1994] 2 A.C. 324. 157 [1920] 2 K.B. 287. [1923] 2 K.B. 500. (1922) 10 Lloyd’s Law Rep. 381, affirmed by the House of Lords: [1923] A.C. 48. [1918] 1 K.B. 592, at p. 605. [1939] 2 K.B. 406. Mackinnon refers to an essay he had written when putting forward the “of course” test, but not Scrutton’s judgment. See generally Andrew Phang, “Implied terms, business efficacy and the officious bystander: a modern history” (January 1998) J.B.L. 1.

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Navigation v. James McKelvie,161 Scrutton had to consider the perennially vexed question whether the signatory of a charterparty had signed as agent or principal. Although his view did not prevail in either the Court of Appeal or the House of Lords, Scrutton’s decision to attach weight to the description of the defendant as charterers in the body of the document – because an “unqualified description as a party to the contract is at least equally strong as importing personal liability as unqualified signature, unless negatived by very strong language in the rest of the contract” – is one which would have appealed to the House of Lords, when considering related issues in the context of bills of lading in The Starsin.162 Scrutton’s dissent in Job Edwards Ltd v. Birmingham Canal Navigation,163 holding that there should be liability for failing to abate a nuisance, proved to be the “turning point”164 in the law of nuisance, prefiguring the decisions in Sedleigh-Denfield v. O’Callaghan165 and Goldman v. Hargave.166 Scrutton’s judgments were characterised by their intellectual rigour. In Holt v. Markham,167 when faced with a restitutionary claim advanced by reference to broad statements of Lord Mansfield referring to equity and conscience, he responded with his oft-quoted observation that “the whole history of this particular form of action has been what I may call a history of well-meaning sloppiness of thought”. When analysing the difficult question of when conduct which was lawful in itself was rendered tortious because of the motive with which it was done, he protested that “in my humble judgment the discussion of this question would be much more lucid if the disputants would . . . avoid questionbegging epithets, such as ‘boycotting,’ ‘ostracism,’ ‘the pillory,’ ‘coercion,’ and the like”.168 In Elliott v. Shipping Controller,169 it was his rigour in identifying whose interest had been interfered with when a tug was requisitioned – the possessory interest of the owner and not the contractual right of a third party to use the tug – which led him to dissent in a judgment which has had lasting effect on the irrecoverability of economic loss. In Banque Belge v. Hambrouck,170 it is Scrutton’s 161 162

163 164 165 168 169

[1922] 1 K.B. 518 (majority affirmed [1923] A.C. 492). Homburg Houtimport BV and Others v. Agrosin Private Ltd and Another, [2003] U.K.H. L. 12; [2004] 1 A.C. 715. [1924] 1 K.B. 341. Megaw LJ’s description in Leakey v. National Trust, [1980] Q.B. 485. 166 167 [1940] A.C. 880. [1967] 1 A.C. 645. [1923] 1 K.B. 504, at p. 513. Ware and De Freville Ltd v. Motor Trade Association, [1921] 3 K.B. 40, at p. 69. 170 [1922] 1 K.B. 127. [1921] 1 K.B. 321.

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distinction between common law and equitable tracing, with the ability of trace through property of changing character being limited to the latter, which has prevailed, rather that Atkin’s more “fusionist” approach.171 His judgments were frequently marked by a memorable phrase – often described in subsequent citations as “trenchant” – which captured the point at issue in terms which appeared to make Scrutton’s answer unanswerable. In Czarnikow Ltd v. Roth, Schmidt & Co.,172 the suggestion that the parties to an arbitration agreement could exclude the court’s jurisdiction to correct errors of law was dismissed with the memorable phrase “that there must be no Alsatia in England where the King’s writ does not run”.173 In Rose v. Crompton,174 in which Bailhache J had decided that a clause in an agreement stating that it was not to have legal effect should be rejected for repugnancy, he stated that “before this heroic method is adopted of finding out what the parties mean by assuming that they did not mean part of what they said, it must be clearly impossible to harmonize the whole of the language they have used”. The fact that persons who are permitted to be on property for one purpose may nevertheless be trespassers when engaging in a different purpose was pithily captured in his observation that “when you invite a person into your house to use the staircase, you do not invite him to slide down the bannisters”,175 and the application of the “clean hands” principle was limited by the requirement that “the dirt in question . . . has an immediate and necessary relation to the equity sued for”.176 It is Scrutton who first applied the “elephant test” for a legal concept which is easy to identify and difficult to define.177 Another frequently 171 172 173

174 176 177

Agip (Africa) Ltd v. Jackson and Others, [1991] Ch. 547. [1922] 2 K.B. 478. He expressed similar sentiments, less colourfully, in Perez v. John Mercer, (1921) 7 Lloyd’s Law Rep. 1. However, errors of law apart, Scrutton was not in favour of challenges to arbitration awards. In Aronson v. Mologa Holzindustrie AG, (1927) 28 Lloyd’s Law Rep. 81, he expressed the wish that “commercial men when they put arbitration clauses in their contracts would be content with the arbitration they have chosen instead of trying to upset it as soon as the decision is against them”. Scrutton was drawing on a judgment of James LJ in In re Cooke, (1876–7) L.R. 4 Ch. D. 555, at p. 561: “My answer to that is that the Stock Exchange is not an Alsatia. The Queen’s laws are paramount there, and the Queen’s writ runs even into the sacred precincts of Capel Court”. Scrutton acknowleged the source in W. Naumann v. Edward Nathan & Co. Ltd, (1930) 37 Lloyd’s Law Rep. 249. 175 [1923] 2 K.B. 261, at p. 287. The Calgarth, [1927] P. 93, at p. 110. Moody v. Cox, [1917] 2 Ch. 71, at pp. 87–8. In re Wigzell, [1921] 2 K.B. 835, at p. 859.

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quoted Scrutton observation, generally by appellate courts when correcting puisne judges, was that if by cross-examination to credit you prove that a man’s oath cannot be relied on, and he has sworn he did not go to Rome on May 1, you do not, therefore, prove that he did go to Rome on May 1; there is simply no evidence on the subject.178

He was forthright not only in phrase but also in action – when faced with an argument that there was no authority for granting an injunction to restrain enforcement of a foreign judgment obtained in breach of contract, his response was, “if there is no authority for this it is time that we made one”.179 Another judgment began, “counsel will be surprised and possibly pained to find that the judgment that I am giving will not relate in any way to the arguments that have been put forward, but I have no doubt that the right way to decide this case is as follows . . .”.180 But however forthrightly expressed, Scrutton’s word was not the last word. That remained with the House of Lords, who could and did correct him, sometimes with good reason but often without. This undoubtedly irritated him. In Rederi Aktiebolaget Aeolus v. W.N. Hillas181 he described himself as being in the melancholy and unsatisfactory position of feeling quite sure that I should have gone wrong but for the guidance I have got from superior authority. If I had been left to myself without the co-ordinating decisions of the Court of Appeal and the House of Lords, I should have felt no difficulty in this case . . . But it appears to me that all the arguments that would have led me wrong were considered by the House of Lords. They have explained to me what is the right view; and if any alteration is to be made in their judgment, Mr. Le Quesne, having had a preliminary run, will present an improved version of his argument to the House of Lords.

In Clan Line Steamers v. Board of Trade,182 he identified his preferred conclusion and observed that “but for the guidance of the House of Lords I should have gone wrong, and unfortunately have remained under the impression that I ought to go wrong”.183 178 179 180 181 183

Hobbs v. C.T. Tinling, [1929] 2 K.B. 1. Ellerman Lines Ltd v. Read, [1928] 2 K.B. 144, at p. 152. Smith v. Smith, [1923] P. 191, at p. 202. 182 (1925) 23 Lloyd’s Law Rep. 90. [1928] 2 K.B. 557. He is said to have observed, “All Judges make mistakes. Only the House of Lords does not make mistakes because there is no one to tell them what to do”: The Times, 21 August 1934.

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In Re Polemis184 he referred to two House of Lords decisions, one upholding him and one overruling him, expressing the hope that the House will someday explain why, if a cheque is negligently filled up, it is a direct effect of the negligence that someone finding the cheque should commit forgery: London Joint Stock Bank v. Macmillan; while if someone negligently leaves a libellous letter about, it is not a direct effect of the negligence that the finder should show the letter to the person libelled, Weld-Blundell v. Stephens.

He may well have hoped that he would be able to offer that explanation himself, after more than ten years in the Court of Appeal. Instead he saw two of his former pupils promoted there over his head.

8.7

Man about town

Scrutton remained an active figure with a full life outside court, particularly on the golf course. He was elected captain at Royal Ashdown Forest Golf Club in 1919 – a telegramme from him to the club on the night of his election survives, announcing “now detained town judicial business, explain meeting and thank them if elected”.185 His playing partners included A.A. Milne,186 whom he was to encounter again when playing for the Bar Golfing Society against a Stage Golfing Society team including Milne and P.G. Wodehouse.187 He remained a member of the Climbers’ Club, presiding over its dinners, but he complained that “the enormous amount of additional business brought to the Court of Appeal by recent legislation made it impossible for him to take any part in the Club’s activities”.188 Inevitably he put on weight – when he spoke to Mill Hill School in 1923, he was seventeen stone189 – and now clipped his beard, two attributes which combined to give a Viking-like quality to his appearance. The Scruttons were a familiar sight at the theatre and opera in London – they took boxes at Convent Garden every year for the Wagner season and at the Savoy for all the Gilbert and Sullivan, but not 184 185

186 187 189

[1921] 3 K.B. 560, at p. 577. I am grateful to Colin Strachan of Royal Ashdown Forest Golf Club for a copy of this telegram. Milne to Scrutton, 1 September 1919, Scrutton Papers. 188 The Times, 15 July 1924. (1934) Climbers’ Club Journal, p. 81. Mill Hill Magazine June 1923.

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“for anything Italian”.190 Their love of Wagner took them to Bayreuth and Munich.191 Stravinsky was not to their taste: they were early leavers from a concert by the BBC Symphony Orchestra which featured Stravinsky playing some of his own compositions,192 pausing only for Scrutton to discuss a legal issue with Frederick Pollock, who wrote to him the following day,193 “Last night my wife and I saw you fly from the terror of Stravinsky – it turned out not so alarming . . . Tchaikovsky. . . I suppose would now pass as nothing out of the way”, before continuing, “Contract to make a contract of which there has been talk is obviously nonsense but I see no reason why an agreement to enter into negotiations on a matter specified should not be good.” They were also to be seen at various “grand occasions”,194 and Scrutton was a spectator in the crowd at various sporting events.195 Gilchrist Alexander recalled,196 Outside the courts one met Scrutton in all sorts of unexpected quarters – at Stamford Bridge watching Nurmi trying to set up a new record for the 10 miles on the track, at Teddington watching a rugger match between the Old Millhillians and the Old Merchant Taylors . . . or on a Surrey Golf Course in company of Clavell Salter, J.

In 1924, the Scruttons put Glenwood up for auction, and moved into a flat in Latymer House, 134 Piccadilly, which had previously been the home of a Hong Kong merchant called Raphael Beililios.197 The flat, “lined with William Morris wallpaper”, overlooked Green Park and the Quadriga. Janet lived with them there, along with an “ancient parlour maid” called Young, and their meals were sent up from a central kitchen. They still had their car, and a chauffeur called Marr – when he arrived for orders at breakfast time, Hugh and Mary Scrutton were left convulsed over their toast when the parlour maid announced “Marr, M’Lady”.198 Scrutton went to court on the underground, and “most fine mornings his 190

191 193 194

195 196 197

Midgley, p. 29. Among theatrical sightings of the Scrutton was that of Harold Dexter Hazeltine: see Hazeltine commentary on Scrutton’s letter of 20 October 1920, Harold Dexter Hazeltine Papers, Series IV, item 3-24, Historical & Special Collections, Harvard Law School Library. 192 Oxford Dictionary of National Biography. The Times, 28 January 1932. Frederick Pollock to Scrutton, 28 January 1932, Scrutton Papers. For example, Lord Birkenhead’s Levee (The Times, 18 March 1922); a Royal Garden Party (The Times, 27 July 1923); a State Ball (The Times, 15 May 1924). He was a keen follower of rugby, cricket and athletics. Gilchrist Alexander, After Court Hours (1950), p. 172. 198 See The Times, 18 August, 10 and 11 November 1924. Midgley, p. 48.

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burly figure could be seen striding across Lincoln’s Inn Fields from Holborn underground station to the Law Courts”.199 His health was good, although he missed occasional sitting days due to illness.200 There were four Scrutton grandchildren – Penelope, or “Pen”, born to Alan Edward in 1915, and her sister Daphne born in 1922, and Tom Burton’s two children, Hugh born in 1917 and Mary in 1919. Scrutton was not wholly at ease with them. Mary Midgley recalls, No doubt in principle they wanted to know their grandchildren. Their theory was they would begin to do this when each of us became sixteen . . . It now seems remarkable that we didn’t share more of our theatrical expeditions with them, and particularly that none of us were ever invited to share the box at the opera that my grandfather regularly had for Wagner seasons and for Gilbert and Sullivan.201

The Scrutton family spent Christmas together, where they all participated in a range of parlour games – “Charades, Dumb Crambo, Up Jenkins and Racing Demon”, with Scrutton and his daughter Janet showing particular dramatic talent. Scrutton’s holidays remained matters of routine – as Mary Midgley describes them, “same holiday at Sheringham every summer, games on the same golf course”. Each summer, he played in the Sheringham mixed foursomes with a succession of young women202 – a tournament for which the Scruttons donated the prize203 – and his regular partner in the foursomes was Canon Francis Ashmall – suggesting that Scrutton did not allow his anticlericalism to spill over onto the golf course.204 Their plan was for each grandchild to spend summer with them in turn, an experience endured by Pen and Hugh, but which Mary, it would seem, was grateful to have been spared.

8.8 Educating the lawyers In contrast to many of his contemporaries, Scrutton was not a dedicated “Inn man”. He did not serve on any of the committees of his own Inn of 199 201 202

203 204

200 Evening News, 20 August 1934. E.g. The Times, 26 January 1927. Midgley, p. 28. See The Times, 8 September 1919, 13 September 1921, 12 September 1922, 11 September 1923, 14 September 1926. The Times, 10 August 1922. The Times, 9 September 1919, 5 and 6 September 1921, 4 September 1922, 4 September 1923, 9 September 1924, 5 April 1927.

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Court – the Middle Temple – nor attain any of its offices, and his attendance at meetings of the governing body, the Parliament, were infrequent at best. He was to be seen at a number of Inn dinners – for visiting dignitaries,205 the Prince of Wales,206 Lord Finlay207 and the Earl of Reading,208 and at Grand Day.209 His one lasting contribution to the Inns was the donation of the Scrutton Cup, awarded to the winner of the annual golf competition between the four Inns of Court. Scrutton had initially proposed a trophy for a golf competition between the various circuits, but this was rejected as impractical. The minutes of the Bar Golfing Society record that Scrutton, E.G. Rand and G.M. McClure were asked to draw up the rules for a new competition, and the Scrutton Cup was the result.210 The first tournament was played in October 1921,211 and Scrutton played every year until 1930, participating in winning Middle Temple teams in 1928 and 1929. He remained a regular in the Bar Golfing Society tournament as well.212 During one of Scrutton’s prolonged absences from the Middle Temple Parliament – he attended no meetings between November 1914 and November 1915 – he was nominated Middle Temple representative on the Council of Legal Education (CLE), the body responsible for the training and examination of barristers.213 Education was a subject which held a close interest for Scrutton – he had had extensive experience as both consumer and provider – and his attendance at meetings of the CLE rose to the level of regularity. He remained on the CLE until 1926, and from 1920 to 1926 he was chairman of the Board of Studies, a sub-committee with particular responsibility for the curriculum and examinations.214 For much of this time, James Atkin served with him.

205

206 208 209

210 211 212 213 214

The Times, 1 February 1918 (the US ambassador), 6 July 1922 (Chief Justice Taft of the United States), 18 July 1924 (Canadian Bar Society), 22 July 1924 (American Bar Society). 207 The Times, 3 July 1919. The Times, 25 May 1919. The Times, 1 March 1921. The Times, 28 January 1920, 17 November 1927. He also attended many public dinners to which members of the judiciary were invited: The Times, 26 June 1920 (Lord Mayor of London’s dinner for His Majesty’s Judges), 10 November 1920 (dinner for the prime minister at the Guildhall). See Hague, p. 63. The Times, 8 October 1921. He was vice-president in 1919. The Times, 21 November 1919. Minutes of 22 July 1915, CLE Archives, A.CLE. 2/9. See The Times, 13 January 1920, for his appointment.

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Much of the work of the council and board was concerned with the routine of educational administration: determining the time of examinations and considering when dispensations should be given. Scrutton supported Atkin in rejecting a general dispensation for those who had passed the solicitors’ examinations “until the standard of the solicitors’ examination was raised”,215 and delivered a paper proposing that students be required to sit their examinations together: as he will be dissuaded from going to crammers and will enter for his examinations with a better-equipped and sounder knowledge of the subjects . . . Until the student has learnt connecting of substantive rights, duties and obligations he cannot be expected to understand the rules of procedure by which those are exercised.216

However, Scrutton was destined to serve on the council and board in interesting times. An early challenge was to gear up for the surge of students after the lean years of the war: soldiers about to be demobilised were admitted to lectures for free, and arrangements were made for students serving with the forces in France to sit their examination in the RAF headquarters there.217 The Sex Disqualification (Removal) Act of 1918 brought women students for the first time: women were allowed to attend lectures in 1920,218 and the Consolidated Regulations of the Inns were amended to allow women students from the two Cambridge and four Oxford women’s colleges to keep terms.219 The first woman to pass the bar examination was Olive Chapman from Scrutton’s own Inn, and the following year Monica Cobb achieved second-class honours.220 The number of women students from Middle Temple was a source of pride to Scrutton.221 Monica Cobb went on to become the first woman to hold a brief at the Birmingham assizes in 1922,222 and five years later, when she became the first woman to appear in the Court of Appeal, of which Scrutton formed part, he sent her a note of congratulation. Her reply survives: “I did not know that it was the first time a woman had 215 216 217 218 219

220

221 222

Council minutes of 15 July 1920, CLE Archives, A.CLE.2/10. Council minutes of 27 October 1926, CLE Archives, A.CLE.2/10. Annual Report for 1919, CLE Archives, A.CLE.14/1. Annual Report for 1920–1, CLE Archives, A.CLE.14/1. Council minutes of 9 March 1920, CLE Archives, A.CLE.2/9. Scrutton presented the initial proposal to the Middle Temple Parliament: 24 January 1920. Annual Report for 1922, CLE Archives, A.CLE.14/1. The report for 1922–3 recorded ten women called, eight of them from the Middle Temple. Scrutton, “The work of the commercial court” (1921) 1 C.L.J. 6. Elsie M. Lang, British Women in the Twentieth Century (2003), p. 166.

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addressed the court but I did much appreciate the honour of doing it and it was much increased by the kindness of your note to me.”223 The council were frequently concerned with issues arising from the large number of students from the Empire who came to study and be called to the Bar in London. To the modern reader, there is a somewhat patronising tone to much of this discussion. For example, at one meeting a motion was passed, seconded by Scrutton, asking the Board of Studies to “consider and report on the best mode of dealing with Indian students who by their failure at examinations or otherwise show lack of due diligence in their studies”,224 and when the Colonial Office put pressure on the council to allow Egyptian students to read for the Bar in London, the sub-committee appointed to consider this issue reported that generally speaking they think that it is not in the best interests of the young men themselves nor of any real public advantage to send them for three years to London where by reason of their living in lodgings and away from their family and friends and not being subject to any disciplinary control they run risks outweighing any profits they are likely to derive from their stay and tuition here.225

This was not the only example of pressure being applied to the council by the Colonial Office to assist imperial policy. A request was made to reduce the term-keeping requirements for Indian students “exercising judicial or ministerial functions . . . in distant parts of the Empire”,226 but the council thought it would be wrong for them “to accept any proposition that would in any material degree lower the standard of efficiency which the present Regulations seek to retain for the status of a member of the English bar”. The committee attached great importance to the opportunity given during the preliminary period by dining in Hall, use of the Libraries and Common Rooms, frequenting the courts and other sources of professional association of becoming imbued with the traditions of professional and judicial control which gives distinction to British justice,

a view which reflected the centuries-long justification for the requirement to keep terms and dine.

223 224 225 226

Letter of 18 March 1927, Scrutton Papers. Council minutes of meeting of 17 April 1917, CLE Archive, A.CLE.2/9. Council minutes of 15 March 1919, CLE Archives, A.CLE.2/9. Council minutes of 1 March 1923, CLE Archives, A.CLE.2/10.

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At the end of 1926, Scrutton resigned from the council and board – he had been on the council for eleven years, and on the board for seven. The council “paid a cordial tribute to the enthusiasm and ability with which the Lord Justice had devoted himself to the work of the Council”, noting that his services were “beyond praise”.227 There was the prospect that Scrutton’s involvement in legal education might continue notwithstanding – in 1929, there was talk of a Committee on Legal Education in Britain, and Scruttton was mentioned as a possible member.228 He held strong views on the inadequacy of legal education in England. When Karl Llewellyn sent him an inscribed copy of his lectures, he was very interested in Llewellyn’s explanation of the “case system” of learning, under which “concrete problemraising situations” were the subject of group discussion in an effort to identify the relevant principles and train the students in their application.229 He told Llewellyn, The Inns of Court have never made a success of their lectures – but the good men who have taken high degrees at Cambridge or Oxford in Classics or mathematics pick up their law in Chambers as pupils with men of large practice, and like the boys at Dotheboys Hall, learn to spell “window” by cleaning it.230

Perhaps recalling his own career, he told Llewellyn that “good lecturers can make more money at the Bar – and unlearned men are bad lecturers”. However, there was no opportunity for Scrutton to implement his own ideas. The Committee on Legal Education only came into being in 1933, and it was Scrutton’s pupil, Atkin, who was asked by Lord Sankey to chair it.231 Its proposals were never implemented. Scrutton did not lose all touch with the education of future lawyers, and Harold Laski’s recollection of Scrutton’s performance in a lecture at the London School of Economics in 1930 may provide an amusing note on which to bring this chapter to a close. Scrutton “over-persuaded” Laski to attend a lecture on the history of bills of lading, delivered by an

227 228

229

230 231

Council minutes of 29 November 1926, CLE Archives, A.CLE.2/10. See Harold Laski to Oliver Wendell Holmes, letter of 22 September 1929, Holmes–Laski Letters, Vol. II, p. 1166. See Scrutton to Llewellyn, 25 November 1930, Karl Llewellyn Papers, Box 52, XIX.4. On the “case system” see Karl Llewellyn, “The current crisis in legal education” (1948–9) 1 J. Legal Educ. 211. Scrutton to Llewellyn, 25 November 1930, Karl Llewellyn Papers, Box 52, XIX.4. Report of the Legal Education Committee (1934), Cmd 4663.

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Italian academic who had translated his lecture into English, “a language with which he only had a visual acquaintance, mostly from novels”.232 Laski recounts, I was sorry for poor old Scrutton but the judge was worthy of the job. He picked up the sheets of the ms as the lecturer put them down and, at the end, produced an exquisite little five-minute summary with a felicitous hint that the lecturer had been wandering in dark seas with no lamp save that of nature to guide him, and that those present had not only been given a lecture in law but also an illustration of the way in which new dialects may conceivably have been originated.

232

Laski to Holmes, 26 October 1930, Holmes–Laski Letters, Vol. II, p. 1293.

9 Scrutton the realist?

Karl Llewellyn’s fulsome appreciation of Scrutton’s prowess as a commercial judge has already been noted.1 Llewellyn devoted much of his professional life to the study both of commercial law and of the judicial method, and he held strong views as to the right approach in both areas. Both of these fields of study reflected Llewellyn’s pursuit of a “realist” jurisprudence, and he held Scrutton up as one of the leading examples of a “realist” judge. In this chapter, aspects of Scrutton’s contribution to commercial law are analysed, and his “realist” credentials considered. By way of a necessary preliminary to that enquiry, Llewellyn and his work are briefly reviewed and an attempt is made to identify the requirements of a “realist” judicial method against which Scrutton’s commercial judgments can be evaluated.

9.1 Karl Llewellyn Karl Llewellyn was born in Seattle, Washington in 1893.2 He first achieved fame – or more properly notoriety – as a result of a decision when a student in France in 1914 to travel to Germany (where he had spent a number of happy years studying) in order to join the German army following the outbreak of the Great War. He managed to attach himself to the 78th Prussian Infantry, travelled to the front with them and was wounded attacking the British line near Ypres in November 1914: the same battle in which Scrutton’s sons John and Hugh fought

1

2

Warranty I; Warranty II; “Through title to contract and a bit beyond” (1938) 15 New York University Law Quarterly Review 159; Common Law Tradition. The key work on Llewellyn remains William Twining’s Karl Llewellyn and the Realist Movement, of which a second edition was published in 2012 (“Twining”). Twining studied under Llewellyn and edited The Karl Llewellyn Papers. The brief biographical detail in this chapter is taken from Twining, Chapter 6, “The man”.

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with distinction.3 While John and Hugh earned mentions in despatches for their efforts in the British Expeditionary Force, Llewellyn earned an Iron Cross third class on the other side. He returned to America to resume his education at Yale, where he enjoyed a brief period of celebrity. However, American public opinion became more anti-German as the European war progressed, and Llewellyn’s military adventure increasingly became a cause for embarrassment rather than for celebration. When America entered the war in 1917, Llewellyn attempted to join the US army but he was rejected as “morally unfit for military service”. A high-level intervention on his behalf by Yale did not change that rejection, but led to his draft record being reclassified with a unique categorisation of 4X: he was unfit for military service because he had served with the military forces of the enemy. Llewellyn began his studies at Yale Law School at a time when the influence of Corbin and Hohfeld (both professors there) was acute: their “new approach to jurisprudence” involved a greater awareness that law was a social construct which needed to be studied in, and adapted to serve the context and needs, of the present; a search for more exact terminology to express legal concepts; and a more functional analysis of legal rules.4 Llewellyn, who had arrived at the Law School with a keen interest in sociology, was particularly receptive to these ideas. In 1919 his first teaching opportunity came in a course on bills of exchange and notes, followed by courses on partnership and sale. Twining notes that “it was chance rather than choice that led him to become a specialist in commercial law”, but that “it remained, together with jurisprudence, his principal area of interest for the rest of his life”.5 His academic work was bolstered by brief periods of practice at the National City Bank and Shearman and Sterling. Llewellyn moved to Columbia Law School in 1924, and in 1929–30 he delivered a series of introductory lectures to law students published the following year under the title The Bramble Bush, which has remained in print.6 In the same year he published a very influential casebook on the law of sale, and an article about the bubbling realist controversy which had split the Columbia faculty.7 In 1941, he published a major work of

3

4 5 7

Twining, Appendix A, “The war adventure”, is the most complete account of the extraordinary episode. See in particular the editorial in (1919) 29 Yale Law Journal 83. 6 Twining, p. 100. Karl Llewellyn, The Bramble Bush (1951). Karl Llewellyn, Cases and Materials on the Law of Sales (1930); “Some realism about realism” (1931) 44 Harvard Law Review 1222.

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sociological jurisprudence based on his study of the rules and dispute resolution of the Cheyenne.8 Through the 1930s and 1940s, he also wrote a number of highly regarded articles on commercial law, in which his appreciation of Scrutton’s judicial qualities features prominently.9 Over fifteen years from 1937, he also played a prominent role in drafting the Uniform Commercial Code:10 a project designed to produce a unified, simpler and improved statement of commercial law which individual states could then adopt as part of a movement to harmonise commercial law across the United States. In 1951, Llewellyn moved to the University of Chicago, and his last major work – The Common Law Tradition – was published in 1960. It was the most comprehensive statement of his views on jurisprudence, and of the judicial method, and was dedicated to a small number of commercial judges who in his opinion exemplified the best of that tradition, Scrutton among them. Llewellyn died in 1962, but his writings have remained a staple of jurisprudence courses on both sides of the Atlantic.

9.2 What makes a realist judge? Delineating those qualities and characteristics which mark out the “realist” judge is a significant challenge, necessarily approached with trepidation and a high probability of failure. One difficulty is that there is no single work in which Llewellyn’s jurisprudential ideas are set out as a coherent whole: it is necessary to discern them from works published in a number of different fields across six decades. Llewellyn’s prose style is itself a significant obstacle to the appreciation and understanding of his work, a style of which Twining notes, “at its best, [it] is picturesque and memorable, but is often mannered, irritating and obscure”.11 The contrast with the clarity and directness of Scrutton’s prose is marked.12 Finally, in his own use of the term “realism”, Llewellyn was more often than not prescribing an outlook 8 9

10 12

Karl Llewellyn and E. Adamson Hoebel, The Cheyenne Way (1941). In addition to those cited in footnote 1 above, see “Across sales on horseback”, (1939) 52 Harvard Law Review 725; “On law and our commerce” (1949) Wisconsin Law Review 625. 11 Twining, Chapters 11 and 12. Twining, p. 114. One Llewellyn literary device was a love of homespun metaphor: for example he communicated his assessment of particular personalities by likening his subjects to different types of tree. Llewellyn’s father was “a cherry tree type” – beautiful but not very solid – whereas Scrutton was “oak. Uncompromising, sturdy, straight-directed, earthgrown, as an axe-hewn oaken roof tree”. Warranty I, p. 699.

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for the teacher of law, or even more narrowly the legal philosopher, rather than a method of judicial reasoning.13 If the “nine points of departure” in Llewellyn’s “realism about realism” article are approached from the perspective of the judicial decision-maker, then points 2 and 3 look particularly pertinent: recognition of “the conception of law as a means to social ends and not as an end in itself; so that any part needs constantly to be examined for its purpose, and for its effect, and to be judged in the light of both and of their relation to each other”; and “the conception of society in flux, and in flux typically faster than the law, so that the probability is always given that any portion of law needs re-examination to determine how far it fits the society it purports to serve”.14 In the field of commercial law, this involves the recognition that the rules of commercial law had developed to a significant extent to reflect the practices and expectations of commerce, and should be applied with those purposes in mind, and that changing commercial practice would or might require restatement of the legal rules on a regular basis. In this sense, the concept of realism is best understood by reference to its jurisprudential opposite, “formalism”. A formalist approach seeks to identify the applicable legal rule, and to apply it. It is not concerned with the reason for this rule, or whether (and to what extent) the advancement of those reasons may require the rule to be qualified in its application in particular circumstances the better to serve those reasons, nor whether changing social contexts require those reasons, and the rule itself, to be revisited. In order to achieve these realist ends, Llewellyn believed that a realist process of dispute resolution requires the application of “situation sense”. This is another typically elusive Llewellyn concept, which appears to involve the ability to appreciate “the type-facts in their context” and to fashion “rightly a sound rule” for those type-facts,15 but it is perhaps easier to understand its application in commercial law than in most other legal contexts. As Twining notes,16

13

14 15

See, for example, the definition extracted at Twining, p. 74, as representing the most consistent use of the term “realist” in Llewellyn’s writing: “a realist is one who, no matter what his ideological or philosophical views, believes that it is important regularly to focus attention on the law in action at any given time and to try to describe as honestly and clearly as possible what is to be seen”. Llewellyn, “Some realism about realism” (1931) 44 Harvard Law Review 1222. 16 Common Law Tradition, at pp. 50–1, 127. Twining, p. 225.

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scrutton the realist? There are few branches of law which concern directly such a close-knit community with such a wide range of agreement as to what is “right”, “fair” or “reasonable”. It is possible to infer that in Llewellyn’s view, a “sound” decision uncovering the “immanent law” would be one in which the judge has sufficient experience and understanding of the usages and ethics of the particular trade and the way this kind of transaction would be conducted and how it fitted into the general pattern of commercial usage to be able to know what kind of solution would be likely to be deemed reasonable and acceptable by the mercantile community.17

That “situation sense” might be provided by the involvement of practitioners of commerce in the determination process – as in Lord Mansfield’s juries of commercial men which Llewellyn so admired, and which at one stage he considered replicating in the provisions of the Uniform Commercial Code.18 But as Twining notes, it could also be provided by a judge equipped with knowledge not only of law and procedure, but also of the practice, usages and values of commerce. Llewellyn believed that these qualities should be apparent in and influence the content of judicial opinions. In The Common Law Tradition he contrasted two styles of judgment and judge:19 the “Grand Style” and the “Formal Style”. He noted, As overt marks of the Grand Style, “precedent” is carefully regarded, but if it does not make sense it is re-explored; “policy” is explicitly inquired into; alleged “principle” must make for wisdom as well as for order if it is to qualify as such, but when so qualified it acquires peculiar status. On the side both of case-law and of statutes where the reason stops there stops the rule; and in working with statutes it is the normal business of the court not only to read the statute, but also to implement that statute in accordance with purpose and reason.20

With the Formal Style, by contrast, the judge will characteristically state, The rules of law are to decide the cases; policy is for the legislature, not for the courts, and so is change even in pure common law. Opinions run in deductive form with an air of expression of single-line inevitability. “Principle” is a generalization producing order which can and should be used to prune away those “anomalous” cases or rules which do not fit, such cases or rules having no function except, in places where the

17 18 19

20

See also Common Law Tradition, p. 122. Karl Llewellyn, Revised Uniform Sales Act, Second Draft (1941), pp. 251–3. Llewellyn explored similar themes in Jurisprudence: Realism in Theory and Practice (1962) (“Jurisprudence”). Jurisprudence, p. 217.

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supposed “principle” does not work well, to accomplish sense – but sense is no official concern of a formal-style court.21

9.3 Scrutton’s commercial “situation sense” It is probably Scrutton’s commercial “situation sense” which Llewellyn most admired: Llewellyn referred to Scrutton’s “hound-nose flair for sense and practice”, his “unrivalled command of matters mercantile”. Scrutton’s knowledge of the practices of commerce was never lightly worn, and was frequently relied upon as a factor justifying one legal conclusion in preference to another. In Willis Faber & Co. v. Joyce,22 when considering the issue of the authority of an underwriting agent, he supported his decision on the basis that “in my opinion there is no practical difficulty as a matter of business in regard to this matter at Lloyd’s. Lloyd’s is a small room where notices pass round very quickly. There is no difficulty in a person posting a notice which would be generally known within 24 hours”. In Produce Brokers Co. Ltd v. Furness Withy & Co.23 he drew heavily on his own knowledge of the history of the London docks and the private Acts of Parliament applying to them to explain the background to the “London clause” in a bill of lading. In upholding a lien in Jowitt & Sons v. Union Cold Storage,24 he found that terms of storage were ordinary and customary, and doubted “for reasons connected with the nature of the cold storage business, whether storage could be procured on any other terms”. In another case, he began his judgment by stating, “in my experience the commercial practice in this matter has been well understood and constant, I do not think the commercial practice has got into the reports and the sooner it gets there the better”.25 His comments in Weiss & Co. v. Produce Brokers Co.26 give a good flavour of Scrutton judgments on commercial law: Now, anybody acquainted with the China trade and with shipping to a limited extent knows that the products of civilisation are carried into Chinese waters by ships all taking names out of the Odyssey or Iliad, and all belonging to the best known line in those parts, and all carrying under 21 23 25

26

22 Common Law, p. 38. (1910–11) 16 Com. Cas. 190, at p. 196. 24 (1911–12) 17 Com. Cas. 165. [1913] 3 K.B. 1. Proctor, Garrett, Marston Ltd v. Oakwin Steamship Company, (1925) 23 Lloyd’s Law Rep. 222, at p. 224. (1921) 7 Lloyd’s Law Rep. 211, at p. 214.

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scrutton the realist? a usual form of bill of lading; and I should be curious to see any leading official of the Produce Brokers’ Association who would come and say to me that he did not know the Polyphemus was one of the well-known line carrying under a well-known bill of lading, and that he had not seen dozens of these and had not known that the usual bill of lading for the line in which the Polyphemus runs, runs “Shipped or received for shipment.”

There were also frequent references in his judgments to the expectations or needs of the business community to justify the conclusions reached or to explain aspects of a judgment: for example in Property Insurance Co. v. National Protector Insurance Co.,27 a clause entitling a reinsured to add additional terms to its inwards policies without affecting his reinsurance cover was said to give “the certainty of getting paid without a law suit which is one of the things that an ordinary underwriter would desire as he does not prefer a lawsuit as an incident of the settlement of his business”. Writing extra-judicially, he was critical of the Court of Appeal decision in Biddell v. Clemens Horst28 precisely because it failed to give effect to the commercial understanding as to when payment had to be made under a CIF contract.29 And, as noted in Chapter 6, in Embiricos v. Sydney Reid,30 it was the need for commercial men to be entitled to act promptly on “reasonable commercial probabilities at the time when they are called upon to make up their minds” which led him to adopt a prospective rather than retrospective test for the frustrating effect of delay on a contract. Llewellyn was particularly struck by a judgment of Scrutton’s which considered whether a shipment of timber staves on 9 October met the contractual requirement of a “summer shipment”, in which Scrutton stated, The buyers first of all said that a shipment on October 9 is not a summer shipment, which anybody who did not know anything about the timber trade would say was a rather reasonable remark. But, as the arbitrator in the timber trade finds, this has nothing whatever to do with the seasons of the year, and, as I know the timber trade, that is the way they would use the language.

Llewellyn observes that “the sureness of understanding thus reflected is not accident. It is Scrutton”.31 It is no coincidence that the judges whom 27 29

30

28 (1912–13) 18 Com. Cas. 119. [1911] 1 K.B. 934. See T.E. Scrutton, The Commercial Laws of the World Comprising The Mercantile, Bills of Exchange, Bankruptcy and Maritime Laws of All Civilised Nations . . . . In the original languages interleaved with an English translation (1911), p. vi. 31 [1914] 3 K.B. 45. Warranty I, at p. 707, Llewellyn’s emphasis.

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Scrutton most admired were themselves highly regarded for their knowledge of the ways of commerce. In his lecture on “The work of the commercial court”, he observed of Mr Justice Mathew, He understood what the case of the plaintiff and of the defendant was from the commercial point of view, and when he gave judgment, each side knew what he was talking about . . . The parties might think his judgment wrong, but they always understood what he meant and why he decided as he did.32

As Scrutton noted in this quotation, knowledge of a business practice did not necessarily entail judicial endorsement of it. In James Finlay and Co. Ltd v. N. V. Kwik Hoo Tong Handel Maatschappij,33 he noted that “after the war, and possibly earlier, a lax practice began” which involved backdating bills of lading when goods should have been, but had not been, shipped by the end of a particular month. He noted, “Whatever the reason, the practice was most undesirable, and certainly is not one which I should expect a great shipping line to countenance for a moment.” In this case, the business practice was “trumped” by wider considerations of public policy. But there were other occasions when Scrutton did not give effect to what he recognised was a developed commercial practice. Scrutton was criticised for failing to give effect to a change in trade practice in relation to the form of insurance documentation which it was necessary to deliver under a Cost Insurance and Freight (“CIF”) contract. Long-standing English authority in Ireland v. Livingstone required an insurance policy,34 but in and after the war it became common practice for the seller of goods to take out a floating policy, in anticipation of a number of future shipments, for which a certificate would be issued in respect of each shipment. Would tender of a certificate meet the obligations of the seller under a CIF contract? Bailhache J held that tender of a broker’s cover note was not good tender, describing his decision as one which “as a judge in the Commercial Court I am reluctant to deliver, because it gives effect to an objection as to which commercial men in the City of London might well complain that it is a merely technical objection”.35 However, he left the status of certificates open for future decision. McCardie J, in Diamond Alkali Export Corporation,36 held that provision of a certificate was not a valid tender, the

32 33 35

Scrutton, “The work of the commercial court” (1921) 1 C.L.J. 6, at p. 16. 34 [1929] 1 K.B. 400, at p. 408. (1872) L.R. 5 H.L. 395. 36 Wilson Holgate v. Belgian Grain Co. [1920] 2 K.B. 1, at p. 7. [1921] 3 K.B. 443.

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issue turning “not upon a question of business convenience but upon the strict law of the matter”,37 noting , “it may well be that this decision is disturbing to business men. It is my duty, however, to state my view of the law without regard to mere questions of convenience”.38 The issue first came before Scrutton in Donald H. Scott Ltd v. Barclays Bank Ltd.39 He held the form of certificate in that case non-compliant because it did not state all of the terms of the insurance. It did refer to an identified policy but “no one looking at the certificate alone can tell what the terms of the insurance are”, and “a certificate in this form which does not state the terms of insurance so that they can all be seen by the person to whom it is tendered is not an approved policy”. In Malmberg v. Evans,40 Scrutton noted that “this is one of a number of troublesome questions which are arising because the course of mercantile business is changing and commercial men are not altering the form of their contracts to meet the change”, the result being “questions, sometimes raised with merits and sometimes raised . . . without any merits at all, as to whether the particular document tendered, which many business people think is a good tender, does conform with the language of the contract as the Courts understand it”. Faced with an admission that the certificate in that case was not a policy within the ordinary meaning of the term, he rejected the argument that the certificate was a good tender as a result of a prior course of dealing between the parties. Atkin LJ in the same case suggested that the requirements for CIF contracts had been determined by authoritative decision which could not be changed by a prior course of dealing between the parties. Theo Chorley criticised Scrutton’s judgment, saying that it “strikes a blow at the whole conception of keeping the law merchant fluid and developing by means of incorporation of customs”.41 However, the criticism is unfair. Scrutton did not blindly follow the rule established in Ireland v. Livingstone but articulated a practical reason for it which shaped this application of the rule – was it possible to tell from the terms of the document the nature and extent of the cover for the goods? – what Llewellyn would have called “a singing reason”. Further, Scrutton, of necessity, needed to have regard not only to the position of the immediate parties to the contract of sale, but also to that of third parties to whom the documents would be provided as security: 37 40 41

38 39 At p. 455. At p. 457. [1923] 2 K.B. 1, at p. 15. (1924) 20 Lloyd’s Law Rep. 40, at p. 42. R.S.T. Chorley, “The conflict of law and commerce” (1932) 48 L.Q.R. 51, at p. 61.

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The result is that when this document is tendered to the bank, they cannot tell by reading it what are the terms of insurance which they are offered. They have a right in my view to see a document or documents, and to have a document or documents which contain the terms of the insurance which is offered to them as security for the loss of the goods, and if the document tendered to them does not show them what the terms of that insurance are, they are from a commercial point of view reasonable in refusing to approve it or to accept it as a policy.42

In Malmberg v. Evans,43 it seems fairly clear that Scrutton thought the concession that the certificate was not a policy was not rightly made, and he made it clear that it was not necessary for the insurance document tendered to record all of the terms of the insurance, provided it incorporated another document, the contents of which were accessible, which did. The tenth edition of Scrutton on Charterparties, which Scrutton edited, supported the proposition that “a certificate of insurance issued by an insurance company under a floating policy, upon which document the company can be sued”, would be a valid tender.44 But in general terms, Scrutton believed that divergence of commercial law from the expectations of commercial men was harmful and would drive litigants from the courts. In Hillas v. Arcos,45 he expressed “regret that in many commercial matters the English law and the practice of commercial men are getting wider apart, with the result that commercial business is leaving the Courts and is being decided by commercial arbitrators with infrequent reference to the Courts”. He was not alone in this view. In 1930, the academic Theo Chorley noted that there was “a certain hostility on the part of the business community towards the law”.46 In less grandiloquent terms, Scrutton’s commercial “situation sense” was essentially the product of such knowledge of the practices and values of commerce as he accumulated from his upbringing in a shipping family, from his ongoing contact thereafter with his brother and his brother’s major shipping and stevedoring interests, and from his interaction with commercial clients and commercial disputes in his practice at 42

43 44

45 46

Scott v. Barclays Bank, (1923) 14 Lloyd’s Law. Rep. 142, at p. 145. The Lloyd’s Law Report is in slightly different terms to the official law report. (1924) 20 Lloyd’s Law Rep. 40, at p. 42. T.E. Scrutton and F.D. Mackinnon, The Contract of Affreightment as Expressed in Charterparties and Bills of Lading, 10th edn (1922), p. 185. (1931) 40 Lloyd’s Law Rep. 307. R.S.T. Chorley, “The conflict of law and commerce” (1932) 48 L.Q.R. 51, at p. 51.

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the Bar and work on the Bench. While perhaps a more substantial basis for views as to the practices and usages of commerce than Llewellyn’s two years at the National City Bank,47 it seems improbable that Columbia’s legal scientists,48 with whom Llewellyn was briefly associated, would have regarded a regular eighteen holes of golf at Royal Ashdown with a leading businessman as meeting the requirements of systematised empirical study of the context of the law. This remains one of the abiding difficulties with the entire realist project. The idea that legal rules – at least those which are facilitative in nature, such as those concerning contract, sale, assignment and so forth – should reflect the usages and practices of the social context in which they are intended to operate is a commendable proposition in the abstract. However, few lawyers (practising or academic), have either the time or the inclination to engage in systematic empirical study of how those rules do in fact operate in context. Commercial judges can frequently be found commending their decision as “businesslike” or reflecting satisfaction that those in commerce would regard it as the right outcome. Such assertions can occasionally be disproved, when, for example, the terms of a market standard form are amended because a judgment on a prior version has not reflected the business understanding of operations, but they cannot readily be proved. In Chapter 6, the expansion of the doctrine of frustration, and Scrutton’s part in it, were considered, one of a number of judicial tools used in an attempt to achieve a “businesslike” reallocation of the consequences of the unprecedented interruption to commerce occasioned by the Great War.49 As also noted in Chapter 6, Arnold McNair thought that “by aiming at being too businesslike” the decisions would “do the true interests of business a great disservice”, noting that “there is just a danger that in seeking to rise to the occasion the common law may have developed a somewhat lax tendency which needs to be carefully watched in the future”.50 47

48 49

50

As Twining (2012), p. 316, notes, “there was virtually no systematic project research of the kind postulated by the scientific model” when drafting the U.C.C., “there were no orderly research designs, disciplined sampling or carefully tested questionnaires”. See Twining (2012), at pp. 54–5, 60–7. These developments are considered in David Foxton, “Property, liberty and obligation: the judicial role in the Great War” (unpublished Ph.D. thesis submitted to the University of London, 2000), Chapter 5. Arnold McNair, “War-time impossibility of performance” (1919) 35 L.Q.R. 84, at pp. 94, 100.

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In 1917 the Board of Trade appointed a committee to consider the effects of war on subsisting contracts.51 It heard evidence from various trade associations and two solicitors, including Cecil Coward, and one theme of the evidence was a concern to avoid giving any impression that “the sanctity of a bargain” could be attacked retrospectively, and a suggestion that resolution of disputes by amicable settlement rather than through some form of legal discharge was the right approach. On this issue, at least, there were some in the business community who wanted formalism rather than realism: a hard legal rule from which their own practice could deviate as a matter of concession, rather than the convergence of the legal rule with that practice. This is a single instance, and an extreme one at that, of the difficulty for judges and legislators in identifying the practices and expectations of businessmen for the purposes of giving effect to them in law. In the final analysis, we largely have to take Scrutton’s commercial situation sense, as we do Llewellyn’s, on trust, although that judgement generally feels intuitively sound. What can be said in Scrutton’s favour is that, in contrast to many judges who decide commercial disputes, his knowledge of commerce did not derive exclusively from advocating, determining or reading about commercial disputes, something which served to reduce the risk of events which might in fact be commercial aberrations being mistaken for the norm.52

9.4 The interpretation of contracts The process of contractual interpretation presents a classic opportunity for divergence between formalist and realist approaches to jurisprudence. A formalist approach would provide clear rules – the parole evidence rule, the “four corners” rule, a principle of literal interpretation – the application of which would provide greater certainty in the outcome of legal disputes, but which would run an increased risk of the court ascribing a meaning to a contract which differed from that which the parties in context would reasonably have understood it to mean. A realist 51

52

Report of the Committee Appointed by the Board of Trade to Consider the Position of British Manufacturers and Merchants in Respect of Pre-war Contracts, (1918) Cd. 8975 vii 817. A point made by Scrutton himself in South African Reserve Bank v. Samuel & Co., (1931) 40 Lloyd’s Law Rep. 291, at p. 292: “I appreciate, however, that to understand business one must realise that it proceeds on the basis of confidence, not of fraud, and that it usually goes right. The Courts see the cases where it goes wrong”.

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approach would be more receptive to the contextualising of language, to the admission of other evidence – business context or usage, subsequent conduct, prior dealing – which would give the decision-maker a better prospect of matching the interpretation which best reflected the parties’ intentions, albeit the process of the determination might be made more complex and less certain as a result. As we have seen, Scrutton recognised that the context in which words were used by contracting parties might give them a different meaning to that which would result from a literal interpretation – hence, “in the timber trade”, a shipment on 9 October might be a summer shipment. When considering the meaning of the words “ex store” he rejected the puisne judge’s analysis “both on the evidence and on my own experience”.53 The meaning of the phrase “varies with the subject-matter and its surroundings”; notably, “applied to frozen meat, ‘ex store’ means ex refrigerating store . . . a vendor who having sold frozen meat ex store tendered meat off the quay would be quickly brought to his senses by the purchaser or anyone else in the trade to whom he tendered it”. In another case, he noted that “among commercial men documents passing from hand to hand, from hour to hour very often during the day, acquire a particular meaning, and when that is expanded the Courts will give effect to what is the known interpretation of such words”.54 Scrutton was always alive to the danger that a court construing words literally in a vacuum might arrive at a different meaning from that which the parties had understood when contracting. In Produce Brokers Co. Ltd v. Olympia Oil and Cake Co. Ltd,55 he noted that “there is always a satisfaction when the Courts construe a business document in the way in which business men themselves construe it”. However, he did not condone lax business drafting, observing in one case that business men frequently complain of what they consider the technical and unbusinesslike methods of lawyers in approaching commercial contracts. I think such business men should consider how much of the difficulty is due to the fact that many business men (even if they have clearly thought out what they mean, which does not always happen) frequently do not take the trouble to see whether the form in which they have expressed their meaning really expresses it.56

53 54

55 56

Fisher, Reeves & Co. Ltd v. Armour Ltd, [1920] 3 K.B. 614, at pp. 622–3. Gordon Alison & Co. v. Wallsend Slipway & Engineering Co., (1927) 27 Lloyd’s Law Rep. 285, at p. 287. [1917] 1 K.B. 320. In re an arbitration between L. Sutro & Co. and Heilbut, Symons & Co., [1917] 2 K.B. 348.

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On occasions, Scrutton’s interpretation was driven entirely by considerations of business purpose. In Continental Contractors Ltd and Others v. Medway Oil & Storage Co. Ltd,57 a clause in a sale contract provided that “the buyers agree if so required to give the sellers a floating bankers’ guarantee for payment by them for 4000 tons of kerosene to be delivered to them under the contract”, and the issue arose whether this was a condition precedent to the obligation to ship kerosene. The answer, and the analysis which led to it, are wholly compelling: Speaking generally, it seems to me that an obligation to give the guarantee of a third party is always a condition precedent to the obligation of the other party. The reason seems obvious: A is making certain promises to B in consideration of B’s making certain promises to A. But A is not satisfied with the promises of B alone. It may be that B’s financial position is not very good; it may be that the trade circumstances are such that A does not like to rely on B’s promises alone. And so A says: “I promise this if you not only promise it, but give me the promise of a third party with whom I am satisfied, such as a bank guarantee, a promise by them that you shall perform, and an undertaking by them to pay damages if you do not perform.” It seems to me that that must always be a condition precedent. To say that it is a term sounding in damages only means that to the promises of B, whom I am not quite sure about, I can add another promise to pay damages if he does not give me the guarantee of a third party; but that is no security at all to A. A wants no further promises by B of whom he is already doubtful; he wants a promise of a third party with whom he is satisfied, the bank.

Scrutton was also aware that in many business contexts, there is frequently no “real” agreement or understanding between the parties to search for. In Brightman and Co. v. Bunge y Born Limitada Socieded,58 he had to consider the proper construction of a charterparty form known as the “Chamber of Shipping River Plate Charter, 1914”. He noted that the form had been agreed between the Chamber of Shipping and the representative body of the Argentine shippers. It contains phrases not easy to construe, as is often the case when parties with conflicting interests adopt an ambiguous form which each side dare not make precise for fear the other party should disagree with their meaning if stated precisely.

In The Varing,59 when faced with an appeal that general words in a standard form offered a guide to the particular issue in dispute, he noted, 57 59

(1925) 23 Lloyd’s Law Rep. 124. [1931] P. 79, at p. 83.

58

[1934] 2 K.B. 619, at p. 629.

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scrutton the realist? It is important to remember that this Scanfin Charter is a general form of charter made out so as to be applicable to a large number of ports, and consequently some of these words frequently have no application to the particular case which is then under consideration. That is particularly true of clause 13, because there are many ports at which you cannot discharge into lighters, there are many ports which have not got any bogies, and there are some ports which have not got a quay. Clause 13 therefore has to be considered in the particular instrument by the circumstances of the particular port for which the Scanfin Charter has been used.

9.5

Consumer contracts

Scrutton’s approach to the interpretation of commercial contracts involved tempering formalism with realism – the formalism of the signed written instrument by the realities of the process whereby it had come into being, the formalism of the “ordinary meaning” of words tempered by the recognition that words may have a different meaning in a specialised situation. However, there were clear limits to Scrutton’s readiness to have regard to the realities of consent or negotiation. In particular he would not countenance the suggestion that there was no “true consent” when one party signed a standard form without any opportunity to negotiate its terms. In Blay v. Pollard and Morris,60 he observed that “it would be very dangerous to allow a man over the age of legal infancy to escape from the legal effect of a document he has, after reading it, signed, in the absence of an express misrepresentation by the other party of that legal effect”. And in L’Estrange v. F. Graucob Ltd,61 he held that a shopkeeper who had signed a contractual form excluding all conditions and warranties could not bring a claim in respect of the defective slot machine with which she had been supplied. Standard form contracts pose particular problems for realist lawyers. Llewellyn noted the advantages of these forms – “they materially ease and cheapen selling distribution”; “they are easy to make, file, check and fill”; “one interpretation of a doubtful point in court or out gives clear light on a thousand further transactions”. But he also observed, “where skill and power enter on one side only, however, the situation changes”.62 He noted the tension between the need for transactions to be certain, on the 60 61 62

[1930] 1 K.B. 628, at p. 633. [1934] 2 K.B. 394. This case is further considered in Chapter 10. Karl Llewellyn, “What price contract?” (1930–1) 40 Yale L.J. 704, at p. 731.

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one hand, and for the courts to provide a remedy, on the other, leading to interference on a case-by-case basis “by way of ‘construing’ the particular language in question not to have intended the result it did intend”. The end result, however, killed security of transactions, if security meant predictability: “no man is safe when language is read in the teeth of its intent”. Scrutton was ready to interpret around the difficulties of the standard form exclusion where he could – in Andrews Brothers (Bournemouth), Ltd v. Singer and Co. Ltd,63 for example, he was faced with a clause in a contract for the sale of “new Singer cars” which provided, “All cars sold by the company [the defendants] are subject to the terms of the warranty set out in Schedule No. 3 of this agreement, and all conditions, warranties and liabilities implied by statute, common law or otherwise are excluded”. While acknowledging that the clause had been specifically drafted to try and exclude the implied condition of description in its scope, he held that the clause did not relieve the sellers of their obligation to meet the express obligation to deliver “new Singer cars”. He noted that the agreement in that case was “a sequel” to the decision in Wallis, Son & Wells v. Pratt & Haynes,64 and that “those advising the present defendants in preparing this agreement appear to have thought that by the inclusion of the word ‘conditions’ in the relevant clause liability would be excluded”. However, they had failed. Llewellyn also noted English law’s “use of the distinction between warranty and condition to evade lopsided drafting in such cases”.65 However, Llewellyn noted another problem with this piecemeal approach. After the decision “the greater bargainor, defeated once and again, recurs to the attack. After each case he can redraft and fight again”. It was this “groupwise” dynamic (to adopt Llewellyn’s phrase) which was responsible for the decision in L’Estrange. Scrutton referred to Wallis and Andrews Brothers, noting that “the clause here in question would seem to have been intended to go further than any of the previous clauses and to include all terms denoting collateral stipulations, in order to avoid the result of these decisions”. Faced with this superior draftsmanship, he was not prepared to achieve the same outcome by a more radical route of holding that the term had not been incorporated into the contract at all. Llewellyn acknowledged the difficulties of taking this step, which “would imply a limit on contractual capacity, an idea that raises prickles on the 63 65

64 [1934] 1 K.B. 17. [1911] 3 A.C. 394. Karl Llewellyn, “What price contract?” (1930–1) 40 Yale L.J. 704, at p. 733.

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scalp”. Remedying inequality of bargaining power was, in Llewellyn’s view, an area where “legislative action offers the great value . . . of possible limitation to definite matters in which regulation is shown by experience to be needed”. This was “a result less easy of accomplishment by the common law – as long as men drive on in search, at all hazards, of broad and simple rules”. It is probably the L’Estrange case which led Patrick Atiyah to observe of Scrutton that he had a high reputation as a commercial lawyer but . . . was unable to see the point of view of the consumer in contractual relationships. His long experience as a commercial barrister, almost invariably acting on behalf of commercial clients, combined with the general traditions of English contract law, made him see all consumers in the same light as the classical economists had done a hundred years previously. He was certainly not the kind of man who would have signed a document without reading it, and he had no sympathy for the consumer who did so.66

The suggestion that Scrutton had difficulty in seeing that the theory of freedom of contract was often not realised in the practical reality of contracting is a fair one: a difficulty most clearly seen in what Lord Roskill described as Scrutton’s “almost hysterical” opposition to the Carriage of Goods by Sea Bill’s enacting the Hague Rules.67 He opposed the bill before the Parliamentary committee convened to consider its merits – “At present English shipowners and English goods owners make their own agreements according as seems good to them”68 – and in the preface which he alone contributed to the eleventh edition of Charterparties he described the legislation as a “terrifying prospect” and suggested that “if there is any value at all in freedom of contract, it should not be interfered with except after full deliberation and the most urgent necessity”.69 However, in L’Estrange it is not clear what course was open to him to fashion a common law solution which would not have had very serious and unintended consequences on, for example, the carriage of goods by sea under bills of lading or the export of grain. Llewellyn had noted the tendency in the English courts “to whom blue water might

66 67

68

69

Patrick Atiyah, The Rise and Fall of Freedom of Contract (1979), pp. 663–4. Review of Legislative History of the Carriage of Goods by Sea Act and the Travaux Préparatoires of the Hague Rules, 3 vols. (1992) 108 L.Q.R. 501. Report from the Joint Committee on the Carriage of Goods by Sea Bill [H.L.] (1923) 5 Parliamentary Papers 735, at p. 86. Preface to Sir Thomas Scrutton and Frank Mackinnon, Charterparties, 11th edn (1923).

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more readily color all contracts for wares” to prioritise the requirements of international sale when formulating contract law, and Scrutton was particularly prone to this tendency.70

9.6

The problem of certainty

Another Llewellyn realist cause célèbre was the extent of any requirement of certainty before an agreement for sale – the problem was usually but not invariably considered in this context – would be legally enforceable. How far would the failure to agree certain terms at all – e.g. price or quantity – or to do so in sufficiently precise terms – a reasonable price, a “fair share” of profits, goods of “a good age” – be fatal to the enforcement of the bargain? In Llewellyn’s opinion, the courts should only be concerned with “outward expressions of agreement”, and, having found those, should not be astute to fail the bargain on other grounds: For with outward expression of agreement, it is to be expected that the participants in the deal will soon rely, and will rely hard, and will rely in intangible ways absurdly difficult to prove, upon the deal so closed . . . It is with the closing of the deal that the deal gets into planning, onto the books, onto production schedules, into the marketing layout, into the balancing of an inventory.71

The legal rule formulated by Llewellyn to address this issue can be found in Section 2-204(3) of Article 2 of the Uniform Commercial Code: “Even though one or more terms are left open a contract for sale does not fail for definiteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.” The definition might be accused of some element of circularity – how does one determine whether the parties intended to make a contract independently of the issues of what the legal requirements of an enforceable contract are? – but it reflects the perception that there is a point when businessmen may regard themselves as “bound” even if there are terms of their contract, even quite important terms, which remain to be agreed; and if legal effect can meaningfully be given to such an inchoate bargain, it should be. Scrutton was similarly motivated to reject challenges to the enforceability of an agreement based on alleged lack of certainty when he 70 71

Karl Llewellyn, “The struggle to unhorse sales” (1938–9) 52 Harv. L.R. 873, at p. 889. Karl Llewellyn, “Our case-law of contract: offer and acceptance, II” (1938–9) 48 Yale L.J. 779, at pp. 803–4.

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believed that the parties had proceeded on the basis that the agreement was enforceable. In May & Butcher v. R.,72 Scrutton dissented in the Court of Appeal on the issue whether an enforceable agreement had been reached between the claimant firm and the relevant Government department responsible for disposing of surplus military supplies. The facts of the case are striking – more striking than they might appear from the recital in the only reported decision in the litigation, that reached in the House of Lords. There was an admitted contract between May & Butcher and the Disposals Board for the supply of 1,466 tons of tents, and a clause which stated that if the Government put more tents onto the market before a specified date, May & Butcher were to be given “first opportunity of purchasing” at prices “which shall be agreed upon”. The agreement contained an arbitration clause. On three subsequent occasions, the board sent documents extending the specified date and confirming that the board “agreed to sell” and May & Butcher “agreed to purchase” all tentage coming onto the market in the relevant period, and providing that otherwise “the whole of the terms and conditions” of the earlier contract “shall remain in force”. Each of these documents was accepted by May & Butcher in a letter to the board. The documents required payment of a £1,000 deposit by May & Butcher, which was paid on the first occasion and retained by the board each time the specified date was extended. When a dispute arose as to the price for one lot put on the market under the third extension, the board wrote denying that there was any contract. Scrutton noted that the issue was “of some business interest”, but he clearly had no doubts as to the right answer. He described the board’s contention that there was no contract as “astonishing”. The judgment was premised on a clear view of what businessmen would have understood and intended by the language used: I have always held the view that when business men, and I hope that I may include some Government Departments in this phrase, making a business arrangement, use well known business terms or forms of expression, if they desire to say that these terms have not their ordinary business meaning, they must make the substituted meaning clear.

As well as a desire to give effect to what he thought a businessman would regard as a “clear bargain”, his decision also reflected a view that the Government had not behaved “properly”, and a desire to align the legal 72

[1934] 2 K.B. 17.

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decision in the case with what those in the business context would understand to be “proper”: I do regret, however, that if the Disposals Board really meant that there should be no binding agreement at all . . . until they were ready to sell at a price which they had sole control of, they should have drafted what I think was, in that case, a form of document extremely likely to mislead any businessman into thinking he had a binding contract . . . It was from this point of view, in my opinion, on their part very unsatisfactory business conduct.

However, he was overruled by a three-man House of Lords, who took the view that the agreement as to price was, and was understood by the parties to be, an essential term of any contract, and that absent agreement on price, there was no contract.73 Two years later, a very similar issue came before Scrutton in Hillas v. Arcos.74 The claimant and the defendant had agreed a contract in 1930 for the sale of timber, which included a clause granting the buyer the option of entering into a contract with sellers for the purchase of 100,000 standards for delivery during 1931. Such contract to stipulate that whatever the conditions are, buyers shall obtain the goods on conditions and at prices which show to them a reduction of 5 per cent. on the f.o.b. [free on board] value of the official price list at any time ruling during 1931.

The defendant contended that the option clause was unenforceable. Scrutton’s judgment on this issue in the case is something of a curiosity. He suggested that his view “apart from authority” was that the clause was not enforceable, because of “the number of things left undetermined, kinds, sizes and quantities of goods, times and ports and manner of shipment”. He then suggested that the same conclusion followed from the House of Lords decision in May & Butcher, before launching into a long defence of his dissenting judgment in that case and extended criticism of the House of Lords’ decision to overrule it: I am afraid I remain quite unrepentant. I think I was right and that nine out of ten business men would agree with me. But of course I recognise that I am bound as a Judge to follow the principles laid down by the House of Lords.75 73

74 75

Scrutton’s judgment is unreported but can be found in HL/PO/JO/10/10/890/585 and HL/PO/JU/4/3/839. (1931) 40 Lloyd’s Law Rep. 307. He continued, “Commercial men carry on an enormous mass of business under the system of ‘string contracts,’ under which A, who has made a contract with B, goes to arbitration with Z, of whom he never before heard and with whom he has in the eyes of

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Had this really been Scrutton’s view “apart from authority”, it is not clear why he regarded the case as differing from May & Butcher (save perhaps in respect of the larger number of matters to be agreed), nor why he engaged in such a passionate defence of his earlier judgment. Karl Llewellyn suggested that Scrutton had set out in Hillas to “deliberately and successfully bait . . . the House of Lords into reversing him and modifying their own views”,76 which would at least explain aspects of the decision. If so, he succeeded. In the subsequent appeal to the House of Lords, his judgment was overturned and May & Butcher distinguished in a none-too-convincing manner.77 Scrutton’s former pupil R.A. Wright delivered the judgment: Wright had written to Atkin at or around the time of the decision, stating that “it seems as if (alas!) I were fated to differ from old Scrutton in the first two cases from his court I have had to deal with”.78 In Foley v. Classique Coaches,79 Scrutton returned once again to the issue whether a provision for further agreement on price prevented a bargain being enforceable as a contract prior to such agreement. Foley concerned an agreement to sell petrol “at a price to be agreed by the parties in writing and from time to time”, which one of the parties later sought to suggest was unenforceable even though the agreement had been acted upon for a number of years. Scrutton noted with some restraint that the House of Lords had held “that we had misunderstood the decision in May & Butcher v. The King”. Relying on the decision in Hillas, he rejected the argument that there was no contract, noting that he was “glad to come to that conclusion, because I do not regard the appellants’ contention as an honest one”. In W.T. Lamb and Sons v. Goring Brick Co. Ltd,80 he noted of a late attempt to take a similar argument in respect of a clause providing that “the price . . . shall be mutually agreed from time to time” that the clause had been operated by the parties for a number of years without difficulty. And in Rose & Frank & Co. v.

76 77

78 79

the law no contractual relations. Their view of damages as a sufficient remedy for breach of contract entirely differs from the law’s remedy of rejection. The commercial man does not think there can be no contract to make a contract when every day he finds a policy ‘premium to be agreed’ treated by the law as a contract”. Warranty II. (1932) 43 Lloyd’s Law Rep. 359. Lord Wright, at p. 371, suggested that all the House had “finally determined” was the application of the law “to the instrument then before the House . . . in that case”. Lewis, p. 51. As Lewis notes, it is difficult to identify the other case. 80 [1934] 2 K.B. 1. [1932] 1 K.B. 710.

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Crompton & Bros. Ltd v. Brittains Ltd,81 he observed that the dealings between the parties “in my opinion gave rise to legal relations, though owing to the vagueness of the language used there might be considerable difficulty in ascertaining with exactitude what these legal relations were”.

9.7 The right of rejection in sale of goods In 1930, Theo Chorley stated that the right of rejection in the law of sale of goods was “a particularly sore point with merchants at the present time”, suggesting that in many cases where law allows rejection “businessmen . . . will contend to a man that the buyer should have no right to reject but only to receive compensation for the loss, if any, which he may have suffered as a result of the breach of contract”.82 As Chorley noted, businessmen had sought to evade this outcome by including clauses designed to exclude the right of rejection and confine the buyer to a remedy in damages, although the judicial interpretation given to these clauses substantially diminished their intended effect. The difficulty arose because of the dichotomy in the English law of sale of goods between breaches of condition, which gave a right to reject the goods, and breaches of warranty, which only gave a claim for damages. While it was relatively easy to treat less serious qualitative complaints as falling into the latter category, failures to comply with the contractual description, or quantitative defects (too many or too few) were invariably classified as conditions. The judicial interpretation of what constituted “description” was itself sufficiently wide to embrace a significant number of disputes which were substantially concerned with the attributes of goods rather than with their identity, further enlarging the applicability of the right of rejection. The problem was enhanced in the context of overseas sales because the place of rejection of the goods would inevitably be some way from the seller’s place of business. In these circumstances, a valid rejection would leave the seller with goods on his hands in a foreign country which it might be difficult to resell and prohibitively expensive to ship back, leaving the seller with no option but to sell those goods at a “knock-down” price where they were, often to the very buyer who had rejected them at the contract price. 81 82

(1923) 14 Lloyd’s Law Rep. 519, at p. 521. R.S.T. Chorley, ‘The conflict of law and commerce’ (1932) 48 L.Q.R. 51, at p. 79.

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In short, the law of rejection of goods identified in stark terms the deficiencies in a formalist approach to commercial law to which Llewellyn so strongly objected: the application of a rigid legal taxonomy producing outcomes which did not accord with the “situation sense” of businessmen, and which offered the opportunity for unscrupulous businessmen to exploit technical complaints for substantial commercial gain. Perhaps for this reason, the law on rejection was a particular complaint of Llewellyn’s. He suggested that an agreement that to a business man calls for shipment of goods as close as conveniently possible to those described with (as of course) price adjustment for defective deliveries, and return only of unusables, and replacement of those – this agreement means to a court that the seller is to comply with the description precisely or have no rights at all,

allowing the buyer to “reject with impunity if the market falls”.83 Scrutton had to address a particularly technical rejection when sitting with Bankes and Atkin in In re an arbitration between Moore & Co. Ltd and Landauer and Co.84 In that case a buyer of tins of Australian fruit to be packed in cases of thirty tins each had rejected the entire consignment on the ground that half of the cases contained only twenty-four tins (although there were enough tins in all). There was a finding of fact that there was no difference in value between tins packed in cases of thirty and those packed in cases of twenty-four. However, the court upheld the rejection on the basis that the packing formed part of the description of the goods. For Bankes and Atkin, the analysis was entirely formalist: once it was determined that the packing was part of the description, then the right of rejection followed. Scrutton attempted to evoke a reason for the rule, but the reason offered is unpersuasive and entirely circular: the possibility that the buyer “may have sold under the same description, and may be placed in considerable difficulty by having goods tendered to him which do not comply with the description under which . . . he has resold”.85 If this reason “sang” at all, it did so in muted and hesitant voice. However, Scrutton had had extensive experience of rejection disputes in timber, where staves were usually sold by reference to their length, and it was comparatively easy for a consignment to include staves which were

83 84

Karl Llewellyn, “What price contract?” (1930–1) 40 Yale L.J. 704, at p. 722. 85 [1923] 2 K.B. 519. At p. 525.

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not of the required length.86 He was also acutely aware of the opportunities for abuse which the remedy of rejection offered in overseas sales. In Ernest Beck & Co. v. K. Szymanowski & Co.,87 he referred to a clause excluding the remedy of rejection, noting that “it is matter of common knowledge that where goods are shipped to a foreign country the buyer not infrequently rejects them unreasonably and uses his rejection, coupled with the fact that the goods are a long way off, as a lever to extort a reduction in the price”. In a later case he said, in all these cases of rejection one is always impressed with this difficulty. It is unfortunately common in many countries that the foreign buyer rejects, but he says: “I will take it at a reduction in price.” Is the English buyer to start prolonged litigation in the foreign country or is he to take what he can get?88

The mismatch between commercial practice and the law as enforced by the courts on the right of rejection became a regular theme of Scrutton’s judgments in the 1930s. In Meyer Ltd v. Osakeyhito Carelia Timber Co.,89 he noted that “the business man does not like the idea of rejection; he thinks that anything apparently can be satisfactorily dealt with by the buyer having to take the goods and getting consolation in damages if the goods are not what he wanted to buy”. He described Joseph Green v. Arcos, Ltd90 as “another of the cases which has arisen from the objection of the commercial community to the doctrine of rejection if goods are not in accordance with contract”, and in Arcos Ltd v. Ronaasen & Sons,91 he said that on the issue of rejection, the commercial mind and the legal mind are quite at variance. The commercial man says: “I have undertaken to deliver a particular size, but it is reasonable that I should be allowed to deliver a certain percentage which is not that size.”92

86

87 88 89 91

See, for example, Meyer Ltd v. Kivisto, (1929) 35 Lloyd’s Law Rep. 265, at p. 266, referring to a “contention I have known for about 40 years in trade, because, as far as I remember, in every commercial litigation this question of whether you can reject or have a claim for damages has constantly been raised in various kinds of trade, and various kinds of contract, and, I daresay, will continue to be raised for centuries yet”; and Arcos Ltd v. London & Northern Trading Co. Ltd, (1932) 44 Lloyd’s Law Rep. 6, at p. 9: “I am sorry to say I have been concerned in timber cases ever since I came to the Bar, now 50 years ago. These are never easy”. [1923] 1 K.B. 457, at p. 467. Levy v. Cohen, Sons & Co. Ltd, (1932) 44 Lloyd’s Law Rep. 5. 90 (1930) 37 Lloyd’s Law Rep. 212, at p. 213. (1931) 39 Lloyd’s Law Rep. 229. 92 (1932) 43 Lloyd’s Law Rep. 1. At p. 4.

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He was most explicit about this concern in Hillas v. Arcos:93 I regret that in many commercial matters the English law and the practice of commercial men are getting wider apart, with the result that commercial business is leaving the Courts and is being decided by commercial arbitrators with infrequent reference to the Courts . . . Their view of damages as a sufficient remedy for breach of contract entirely differs from the law’s remedy of rejection.

However, beyond being aware of the problem, there was relatively little Scrutton could, or did, do about it: as Karl Llewellyn noted, “Scrutton did not like this. He wished the law different. But it wasn’t”.94 Where there was a clause making allowance for some discrepancy from specification, Scrutton was able to interpret it liberally. In Meyer v. Kivisto,95 discolouration and lack of proper seasoning of timber had reduced its value by 10 per cent. Scrutton rejected the claim to reject, stating, Now that seems to me to be peculiarly a case, with such knowledge as I have of commercial matters, for damages and not for rejection. Ten per cent. on the contract price does not, in my view, stop the goods from being the goods specified . . . What I understand [the arbitrator] to be saying is: “I know the trade, and in the trade you do not generally reject for discolouration.” If a trader proceeds on this contract it seems that he cannot reject for reasons of discolouration.

Similarly, in Levy v. Cohen, Sons & Co. Ltd,96 a cargo of scrap iron described as “free from deleterious material” contained small amounts of black iron, lacquered iron, rust and wood, and the buyer sought to reject on that basis. Scrutton rejected the attempt by applying a liberal and commercial construction to the description “free from deleterious material”. He held that this did not mean that “the goods must be chemically free of every matter mentioned, but . . . means that the goods must be commercially free in the sense that some very small matters do not entitle rejection”, adopting what he described as “the commercial sense of ‘free from’”. However, he was also alive to an alternative commercial concern, which he described in characteristically strident terms in Meyer Ltd v. Osakeyhito Carelia Timber Co.:97 Unfortunately, some members of the commercial world have taken a view which was very much like dishonesty, because they have shipped goods

93 95 97

94 (1931) 40 Lloyd’s Law Rep. 307, at p. 312. Warranty I, at p. 707. 96 (1929) 35 Lloyd’s Law Rep. 265. (1932) 44 Lloyd’s Law Rep. 5. (1930) 37 Lloyd’s Law Rep. 212, at p. 213.

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which they knew were not the contract goods and have said: “Under a clause we have in the contract it is stated that the goods shall not be rejected but satisfaction to comply with the contract shall be obtained by an award of damages.” They have said: “You must take these goods; we know they are not what you ordered, but you must take them and we must pay whatever damages you have suffered.”

In that case he held that the discrepancy between what was purchased and what was delivered was too substantial to allow the seller to take advantage of the “no rejection” clause, and he reached a similar conclusion in Joseph Green v. Arcos Ltd.98 The only solution he was able to offer the commercial community was to put an appropriate clause in the contract, although he suggested that buyers might be reluctant to accept clauses of sufficient width:99 There have been a whole series of cases in which the Courts have been occupied in telling the commercial man: “If you want to get your interpretation you must put something in the contract. If you do not put in figures, you must put in ‘about’ or you must put in ‘a margin of 10 per cent. more or less.’ If you, the seller, do that, you will have something which will give you the latitude which you claim.” But I suppose the seller finds his difficulty that the buyer is not inclined to buy something when he is not sure what he is going to get. He is not inclined to give the seller a free hand as to what may be delivered, relying on a claim for damages if it is not exactly what he wants; and the explanation of these difficulties seems to be that the buyer will not agree to the putting in of words which will give the seller the free hand he wants.

The suggestion that if businessmen do not like the law they can draft around it is seldom a satisfactory answer to a mismatch between commercial law and practice. If you accept the premise that the commercial bargainers intended a particular effect (and, as noted, Scrutton had doubts as to whether they did), then it does not seem an appropriate function of an essentially facultative branch of the law to seek to incentivise use of the appropriate contractual form through the deterrent of non-enforcement. However, Scrutton’s room for manoeuvre was limited, both by the rigidity of the conceptual distinction between condition and warranty in the Sale of Goods Act, and by the fact that there was limited support for his views in the House of Lords, in which high-value timber cases were frequently litigated. Lord 98 99

(1931) 39 Lloyd’s Law Rep. 229. Arcos Ltd v. Ronaasen & Sons, (1932) 43 Lloyd’s Law Rep. 1, at p. 4.

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Atkin’s views in Arcos Ltd v. Ronaasen & Sons100 represent a comprehensive rejection of Scrutton’s position: I do not myself think that there is any difference between businessmen and lawyers on this matter. No doubt in business men often find it unnecessary to insist on their strict legal rights. In a normal market if they get something substantially like the specified goods they may take them with or without grumbling and with a claim for allowance. But in a falling market I find that the buyers are often as eager to insist on their legal rights as courts of law are ready to maintain them. No doubt at all times sellers are prepared to take a liberal view as to the rigidity of their own obligations, and possibly buyers who in turn are sellers may also dislike too much precision. But buyers are not, as far as my experience goes, inclined to think that the rights defined in the code are in excess of business needs.

Atkin’s approach in this passage in many ways represents the very antithesis of legal realism: legal rights are not to reflect the business perception of the “just” solution, but are fixed and firm points about which concessions may be given where the businessman with the upper hand thinks it advantageous to do so.

9.8 The protection of third-party interests The law governing commercial contracts is not exclusively concerned with giving effect to obligations which have been voluntarily assumed between the parties to a voluntary arrangement. Necessarily it also engages in large measure in issues which arise between two parties who have had no relevant voluntary interaction, but between whom an issue arises as to who should bear the loss which follows from wrongful activities of a third. This will arise when someone “sells” something which does not belong to him, or uses his position in respect of another to divert the assets or money of that individual, or purports to commit that person to obligations with third parties. While it is possible to approach issues which arise from the voluntary engagement of parties from a perspective of laissez-faire economics, giving effect to individual autonomy within the defined limits of public policy, cases which engage third-party interests raise more complex issues: how far should individuals or enterprises be required to conduct their affairs with a view to minimising the risk of damage to third parties? Should good faith or 100

[1933] A.C. 470, at p. 480.

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reasonable care be the touchstone for resolving disputes where thirdparty interests are engaged? What level of diligence should the law require from third parties before their interests are protected? The “law merchant” history from which both Llewellyn and Scrutton drew intellectual sustenance placed a significant value of the finality of transactions: business was done in a market or fair by individuals who briefly interacted and then moved on to the next market or fair. There was not the time, or in any event the means, for “due diligence” and, in practical terms, once the market or fair had dispersed, there were significant practical obstacles to restoring the status quo. By contrast, a more formalist legal approach might address these issues by strict application of rigid legal concepts: did property pass? Did an individual have authority to bind another? In discussing the doctrine of bona fide purchaser for value, Llewellyn noted that it was “impregnated strongly with recognition that life and transactions must after all go on whatever basis we have at the moment”,101 on the basis of instantaneity rather than with the benefit of a prolonged pause for reflection. Theo Chorley similarly noted that “nothing has perhaps been more aggravating to business men than the rigorous application of the maxim nemo dat quod non habet. They attach more importance to possession than ownership”.102 The principal protection for a buyer acquiring goods on the basis of the “seller’s” possession of them was the Factors Act 1889, which provided protection where a mercantile agent was in possession of the goods with the consent of the true owner. However, where the mercantile agent had obtained that consent by tricking or deceiving the true owner, issues arose as to whether there was sufficient consent for the Act to operate to protect the bona fide purchaser for value. In Folkes v. King,103 the owner of a car had delivered it to a garage for sale at not less than a specified price, but the seller intended from the outset to sell the car for any price for his own purposes. When the third-party purchaser relied on the Factors Act, the true owner denied that the garage had possession of the car with his true consent, on the basis that it had been obtained as a result of “larceny by trick”. The true owner succeeded at first instance, and the matter came before Scrutton on appeal. He noted that it raised “a difficult and important question” but came down firmly on the side of the purchaser. Where the true owner intended to give possession, it did not 101 102 103

Karl Llewellyn, “What price contract?” (1930–1) 40 Yale L.J. 704, at p. 72. R.S.T. Chorley, “The conflict of law and commerce” (1932) 48 L.Q.R. 51, at p. 64. [1923] 1 K.B. 282.

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matter, Scrutton said, that the person accepting possession intended to disregard the agency:104 “that Act intended to protect a purchaser in good faith carrying out an ordinary mercantile transaction with a person in the position of a mercantile agent . . . I do not think Parliament had any intention of applying the artificial distinctions of the criminal law to a commercial transaction”. He reached the same conclusion in London Jewellers Ltd v. Attenborough:105 jewellery was handed to a person on “appro” or sale or return, as a result of fraudulent misrepresentations made by the recipient, who had then pledged them to an innocent third party: “In such a case the person to whom they are thus handed is, in my view, given power to make a sale; being in possession of the goods he may conceivably deal with them contrary to his mandate; being sent out to sell, he may pledge”.106 Similarly, in Marten v. Whale,107 Scrutton held that the concept of a buyer in possession extended to a buyer in possession under a conditional contract of sale. Scrutton was also averse to the view that the fraud of an agent upon his principal should too readily provide a basis for vitiating the agent’s authority to commit the principal to a third party. In Reckitt v. Barnett, Pembroke and Slater Ltd,108 the claimant had given his representative a widely phrased power of attorney, supplemented by a letter confirming that the power covered the drawing of cheques “without restriction”. The representative drew cheques for his own purposes, and the issue arose as to whether the authority extended this far, or whether the words used were concerned only with restrictions as to the amount of any cheque. Scrutton preferred the wider construction, on the basis that the letter was a power “to draw cheques without restriction, so that the bank could safely honour them without inquiry, and third parties could safely accept them without inquiry”, concluding “the person to suffer from Sir Harold Reckitt’s excessive but misplaced confidence in Lord Terrington must be Sir Harold Reckitt himself, who allowed him to sign cheques without restriction, and not innocent third parties who took such cheques”.109 However, the House of Lords disagreed as to the interpretation and overturned the decision.110 The protection of third parties who act on the basis of appearances created by the complainant was a theme of Scrutton’s judgments. In

104 106 108

105 At p. 305. [1934] 2 K.B. 206. 107 See also Kempler v. Bravingtons Ltd, (1925) 33 L.T. 680. [1917] 2 K.B. 480. 109 110 [1928] 2 K.B. 244. At pp. 254–5, 260. [1929] A.C. 176.

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Albermarle v. Hind,111 this operated to the benefit of a repairer who claimed a lien over a car put in for work by the hirer, when faced with an argument by the owner that the hirer did not have authority to create the lien: “if a man is put in a position which holds him out as having a certain authority, people who act on that holding out are not affected by a secret limitation, of which they are ignorant, of the apparent authority”. It was open to the owner to inform the garage where the car was kept of the limitation: “they will thus escape the lien, though they may not get their cab repaired”. In Lloyd’s Chartered Bank of India, Australia and China,112 he reiterated that a third party, dealing in good faith with an agent acting within his ostensible authority, is not prejudiced by the fact that as between the principal and his agent the agent is using his authority in such a way that the principal can rightly complain that the agent is using his authority for his own benefit and not for that of his principal.

He resolutely set his face against the application of any doctrine of constructive notice – “whereby a person is deemed to have known that which he might have discovered upon inquiry” – to commercial transactions, where there was no time for the “leisurely investigation” of title common in land and estates. He invoked the same principle against an insurer who placed certificates of insurance into circulation said to evidence the terms of an insurance policy covering goods, and then sought to rely on some other term of the policy not identified on the certificate.113

9.9 Realism v. formalism? It is easy to caricature both realist and formalist approaches to commercial law on the basis that the goal of one is to ape the businessman’s view of the “right answer” to a case regardless of legal principle, and the goal of the other is to apply legal principles to a case regardless of how a businessman would view the outcome. Scrutton was no caricature realist applying “situation sense” to determine the outcome on a case-by-case basis. He believed that the principles of commercial law should, where possible, accord with commercial practices and expectations of commerce, but the business of law was the formulation and application of principles, not the 111 113

112 [1928] 1 K.B. 307. [1929] 1 K.B. 40, at p. 56. Phoenix Insurance Co. v. De Monchy, (1928) 34 Lloyd’s Law Rep. 194.

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ad hoc resolution of disputes on a case-by-case basis. In so far as he was hostile to trade arbitration, it is precisely because he believed it inhibited the formulation and application of principle. In Czarnikow Ltd v. Roth, Schmidt & Co.,114 his objection to Rule 19 of the Refined Sugar Association Rules precluding the stating of cases to allow points of law to be determined by the courts was on precisely this basis: I think commercial men will be making a great mistake if they ignore the importance of administering settled principles of law in commercial disputes, and trust to the judgment of business men, however experienced in business, based only on the facts of each particular case, and with no knowledge of or guidance in the principles of law which must control the facts and which arbitrators must administer.

The formulation and application of principle will necessarily involve the occasional “hard case” in which the application of the principle may lead to a result which businessmen might regard as “unfair” in a particular case. However, as Scrutton noted in another case, Liberty to decide each case as you think right without any regard to principles laid down in previous similar cases would only result in a completely uncertain law in which no citizen would know his rights or liabilities until he knew before what judge his case would come and could guess what view that judge would take on a consideration of the matter without any regard to previous decisions.115

Participation, whether as judge or as advocate, in a system based on principles and precedent, on a hierarchy of court decisions of different status, necessarily makes all lawyers “formalist” to some degree, and Scrutton was no exception. His great achievement as a commercial lawyer was his ability to test and frame commercial law both by reference to the prior statements of legal principle by the courts and by his knowledge and understanding of how businessmen acted, and expected others to act, in the situation at hand. His judgments are characterised by an extensive knowledge of commercial practice and concern as to how the business community will view the outcome, but also by his encyclopedic knowledge of the relevant case law. It is a rare report of counsel’s argument in a Scrutton case which does not record a judicial interjection identifying a number of relevant cases on which the court requires submissions. Scrutton was a “realist’s lawyer”, but he was a “lawyer’s lawyer” as well. 114 115

[1922] 2 K.B. 478, at p. 489. Hill v. Aldershot Corporation, [1933] 1 K.B. 259, at p. 264.

10 “Old Scrutton”

10.1 Passed over While appointments to the High Court were made by the Lord Chancellor, on the advice of his principal secretary and such “informal soundings” as he chose to take, appointments as a Lord Justice of Appeal or Lord of Appeal in Ordinary were made by the prime minister.1 In the case of the Court of Appeal, with certain notable exceptions, these appointments had come in the early part of the last century to be made on merit on the effective recommendation of the Lord Chancellor, and without regard to the political affiliation of the candidates.2 However, appointments to the House of Lords were often highly politicised: they were a very useful right of patronage for a prime minister seeking to reshuffle his Cabinet, and in addition the role of Law Lords in hearing appeals from the dominions when sitting in the Privy Council made these appointments more significant politically than appointments to the lower courts.3 In addition, there were relatively few such appointments: there were six Law Lords until 1929, when an additional one was appointed. Between October 1913, with the appointment of Hamilton as Lord Sumner, and Scrutton’s death in August 1934, there were only eight appointments. The first two of these appointments were undoubtedly political. In November 1918, Lloyd George appointed his Conservative Home Secretary Sir George Cave to succeed Lord Parker of Waddington,4 Cave 1

2

3

4

See Report of the Machinery of Government Committee to the Ministry of Construction (1918) Cd 9230, at p. 66, paras. 11 and 37; Robert Stevens, The Independence of the Judiciary: The View from the Lord Chancellor’s Office (1993) (“The Independence of the Judiciary”), p. 26. The Independence of the Judiciary, p. 40; Robert Stevens, The English Judges: Their Role in the Changing Constitution (2002), p. 20; see also Lord Schuster’s memorandum of 31 January 1943, which is in NA/LCO 2/3630, at para. 18. See generally Robert Stevens, Law and Politics: The House of Lords as a Judicial Body, 1800–1976 (1978) (“Law and Politics”), p. 247. The Times, 13 November 1918.

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serving until his return to the world of politics when appointed Lord Chancellor in October 1922. Lloyd George also appointed the Ulster Unionist leader and former wartime Cabinet minister Sir Edward Carson, an appointment announced on 24 May 19215 in succession to Lord Moulton. The appointment is generally thought to have represented an (unsuccessful) attempt to procure Carson’s silence as the Coalition Government was about to embark upon a policy of negotiation with the Sinn Fein movement in order to end the Irish War of Independence. This may be the appointment to which Sir Claud Schuster, the principal secretary to the Lord Chancellor, was referring when he mentioned in a memorandum “the sharp conflict of opinion between the Prime Minister and the Lord Chancellor and the single occasion on which a Lord of Appeal in Ordinary was created without consultation with the Lord Chancellor”.6 Carson proved both an undistinguished and unhappy Law Lord, eventually resigning his position in 1929.7 The next appointment was Sir Robert Younger – Lord Blanesburgh – whose appointment was announced in November 1923 when Lord Cave moved from the position of Law Lord to Lord Chancellor.8 This was not a political appointment – Younger had served as both a puisne and a Court of Appeal judge. The reasons for his appointment to the House of Lords only four years after elevation to the Court of Appeal are far from self-evident. A letter sent by Schuster on Haldane’s behalf to the prime minister’s secretary recorded that Haldane “would greatly value the opportunity . . . of talking the matter over with the Prime Minister” because “there are many things which he can say to the Prime Minister in conversation which it is not well to commit to paper”.9 However, a Supreme Court needs equity as well as common lawyers. It is known that Lord Haldane felt “very much that another Equity mind besides his own is much wanted for the Equity cases”, and that Lord Buckmaster was

5 6

7

8

9

The Times, 25 May 1921. Sir Claud Schuster, memorandum of 31 January 1943, NA/LCO 2/3630. Birkenhead and Lloyd George were also in dispute as to the latter’s plans to appoint Lord Finlay as Lord Chief Justice, but this appointment did not proceed. Jean Graham Hall and Douglas Martin, Yes, Lord Chancellor: A Biography of Lord Schuster (2003) (“Yes, Lord Chancellor”), p. 84. See Law and Politics, pp. 265–9; H. Montgomery Hyde, Carson: The life of Sir Edward Carson, Lord Carson of Duncairn (1953), p. 481–5. The Times, 17 November 1923; NA/LCO 2/2556. See Law and Politics, pp. 308–9, for Blanesburgh. Letter of 23 August 1923 in NA/LCO 2/605.

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finding sitting a strain.10 For very different reasons, it may be said that both Carson and Younger owed their appointments to qualifications to which Scrutton could not fairly have laid claim.11 The next vacancy did not occur until February 1928, with the resignation of Lord Atkinson, and it is this which represented Scrutton’s best opportunity. When his judicial colleague Sir John Eldon Bankes retired in December 1927, he wrote to Scrutton, referring to the “very happy time” they had had together, and in what appears to be reference to a potential future appointment, wrote “when the occasion occurs . . . I hope you may be taken”.12 However, the other surviving member of that Court, Sir James Atkin, had similar ambitions and was getting restless. In a letter written some months before, he had stated, I am beginning to feel rather tired of the Court of Appeal where I shall have been nine years next Spring and have been junior Common Law Lord Justice all the time . . . If I were offered a Law Lordship in the next year I should probably take it. If not I propose to resign . . . However all of this is rather in the air.13

The last sentence suggests that he may have made known his intention to resign if appointment to the Lords were not forthcoming. If so, the hint was not wasted, and in February 1928 Atkin’s appointment to succeed Lord Atkinson was announced.14 There is no doubt that Atkin’s legal merits were deserving of promotion to the House of Lords, where he distinguished himself, but whether those merits justified promotion ahead of Scrutton in February 1928 is a rather more doubtful proposition. Scrutton’s collection of appellate judgments was more distinguished than Atkin’s, his standing was greater as a commercial lawyer, and he was many years Atkin’s senior. While Atkin complained of having been in the Court of Appeal for nine years, Scrutton had served for eleven, and whilst further opportunities would have existed for Atkin, the decision to promote Scrutton’s pupil over his head must effectively have ended Scrutton’s prospects of further advancement. It seems likely that there were more than purely legal considerations in 10 11

12 13

Heuston, Lives, pp. 300–1; Yes, Lord Chancellor, p. 78. Although Lord Sankey, when Lord Chancellor, identified Scrutton as one of the judges “whose knowledge of both branches [Chancery and Common Law] is so great that they can preside with equal facility and success in either court”. HL, 11 December 1934, cols. 219–39: a posthumous tribute. Bankes to Scrutton, 16 December 1927, Scrutton Papers. 14 Letter of June 1927 quoted in Lewis, p. 93. The Times, 7 February 1928.

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play. Atkin was popular in his Inn, Gray’s – Geoffrey Lewis notes that he “neglected none of the common tasks of the House whether in Hall, in Chapel or in Pension”15 – whereas Scrutton’s participation in the activities of the Middle Temple was limited. And when The Times, reporting Atkin’s appointment, noted that “his admitted judicial qualities have always been combined with patience, courtesy and dignity”,16 the contrast with Scrutton’s outbursts as a puisne judge was too obvious to state. In a memorandum to the Cabinet of 4 October 1928, the then Lord Chancellor Lord Hailsham identified the need for an additional Law Lord,17 but proposed that “the additional member to be appointed when Parliament has given its authority should be taken from the equity Bench . . . The unexpected loss of Lord Haldane and Lord Buckmaster and the inability of Lord Wrenbury to sit makes the Court dangerously weak on its equity side”. The Appellate Jurisdiction Act received the Royal Assent on 5 February 1929, and the same day the appointment of Lord Tomlin – directly from the Chancery Bench to the House of Lords – was announced.18 Another place opened up with the resignation of Lord Shaw of Dunfermline, but there was a convention that there should be at least two Scottish Law Lords, and it was “generally understood” that when Shaw resigned, the post would be offered to William Watson, who was Unionist MP for Carlisle, Lord Advocate and a former SolicitorGeneral.19 It duly was, and he took his seat as Lord Thankerton.20 In October 1929, Carson resigned, although the resignation was not announced until the following month.21 Lord Sankey, the Lord Chancellor, dropped a note to Lord Hanworth, the Master of the Rolls, seeking a meeting with Hanworth and Lord Hewart, the Chief Justice, “so that we may have a word together. What about Russell for the Lords and Romer for the C.A.?”.22 Sir Francis Russell was duly ennobled as Lord Russell of 15 18

19

20 21 22

16 17 Lewis, p. 7. The Times, 7 February 1928. NA/C.P. 289(28). The Times, 6 February 1929. On Tomlin see Law and Politics, pp. 309–10.When explaining Tomlin’s appointment to the Chancery bench, Claud Schuster referred to his possessing “a public spirit and a judicial mind which, in the Lord Chancellor’s opinion and, as his Lordship believes, in the opinion of the profession generally, fit him in all respects for the high office to which he is now to be appointed”. Schuster to Lord Stamfordham, 10 October 1923, NA/LCO 2/2556. The Times, 23 April 1929, predicted Watson’s appointment, and it was announced on 6 May 1929. For Thankerton’s performance as a Law Lord, see Law and Politics, pp. 279–82. The Times, 1 November 1929. Sankey to Hanworth, 23 October 1929, Bodleian Library, MS. Eng. Hist. d.429.

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Killowen.23 Russell was not a political appointee, but he did benefit from the distinguished career and connections of his father, a former Liberal Attorney General, Lord of Appeal in Ordinary and Lord Chief Justice,24 and he led a particularly charmed judicial life. The Earl of Birkenhead had appointed him to the Chancery Bench, having formed a very favourable opinion of his performance in two cases Russell had argued before him;25 Stanley Baldwin, when prime minister, appointed him to the Court of Appeal;26 and his appointment to the House of Lords came before he had served there for two years. There does not appear to have been any need for a Chancery appointment, given the prior appointments of Blanesburgh and Tomlin. There were two further appointments. When Lord Sumner resigned, chafing at the restrictions which his status as a Law Lord imposed on the expression of his increasingly “die-hard” political views, he was replaced by Lord Macmillan.27 This was certainly a political appointment – there were already two Scottish Law Lords in Lord Dunedin and Lord Thankerton. Macmillan had a political background which covered all the bases – he had been both a Unionist MP, and Conservative SolicitorGeneral and Secretary of State for Scotland, and also Lord Advocate to the Labour Government – and he had obtained promises from both the Conservative leader Baldwin and the Labour leader MacDonald that he would be appointed a Lord of Appeal in Ordinary once a vacancy arose.28 It is to Scrutton’s credit that he managed to send Macmillan a letter of congratulations, although its precise import is open to diverging interpretations.29 The final appointment was another of Scrutton’s pupils – Robert Wright – appointed directly from first instance to the House of Lords in 1932 – on the retirement of Lord Dunedin.30 Wright, like Scrutton’s other former pupil Atkin, proved a distinguished Law Lord,

23

24 25 26

27 29

30

The Times, 12 November 1929. On his performance as a Law Lord, see Law and Politics, pp. 312–15. The Times, 11 August 1900. See NA/LCO 2/2536, letter of 22 October 1919 to Lord Stamfordham. Baldwin to Hanworth, 28 March 1928, Hanworth Papers, Bodleian Library MS. Eng. Hist. d.429. 28 The Times, 27 January 1930. Law and Politics, pp. 269–74. Lord Macmillan, A Man of Law’s Tale (1952), pp. 145–6: “you are the only member of the Scotch Bar whose appointment to succeed Sumner would not have made the English Bar angry”. The Times, 21 March 1932.

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and Scrutton was seventy-five years of age and in failing health at the time of the appointment. If not securing elevation to the House of Lords can be so described, then the overwhelming majority of judicial careers end in failure, but Scrutton’s “failure” has remained a matter of controversy.31 Predictably, Karl Llewellyn thought him “too good”.32 Scrutton himself – in conversation with Harold Laski – thought that he had been passed over on a number of occasions because he had not been an MP.33 Small wonder, therefore, that he held the view that “as regards impartiality and competency he thought that Judges should be appointed from the class of practising barristers and not because of their political opinions”.34 There were certainly political appointments to the House of Lords which other, less qualified, lawyers achieved – Carson and Macmillan in particular – but, as has been seen, it was not the whole story. Others, however, suggested that Scrutton’s temper was to blame.35 When Atkin’s appointment was announced, Harold Laski informed Oliver Wendell Holmes, “I deeply regret that Scrutton whom I greatly admire should have been passed over again. They say it is due to faults of temper – but bad-tempered judges have been promoted before.”36 It may have reflected a combination of both factors – Watson’s political claims were enough to render him Lord Thankerton notwithstanding a notoriously poor temper,37 but Scrutton had no such emollient to call on. But it was 31

32 33

34 35

36

37

See for example, Sir Henry Slesser, Judgment Reserved: The Reminiscences of the Right Honourable Sir Henry Slesser (1941) (“Slesser”), pp. 251–2 (“I think it was a great loss to the Law that he never went to the House of Lords; there was certainly no man in his time more qualified”); Lord Chorley, HL, 15 December 1959, col. 399: “certainly one of the great Common Law lawyers of the century who many of us thought would have adorned your Lordship’s House”; Lord Rodger, “The form and language of judicial opinions” (2002) L.Q.R. 226, at p. 238. Warranty I, at p. 702. Letter of 1 November 1925, Holmes–Laski Letters, Vol. II, p. 1026: “Scrutton LJ held very strongly the view that [he] had been passed over several times in recent years because [he] had not been [a] member . . . of the House of Commons”. The Times, 1 May 1922, “Law and business” lecture at University College London. See, for example, After Court Hours, p. 170: “a very able judge who, but for certain faults of manner and disposition, would in all probability have been elevated to the House of Lords”. See also A.W.B. Simpson, Biographical Dictionary of the Common Law (1984), p. 469: “Maybe this was a bitter blow to him, but he had made many enemies”. Letter of 7 November 1928, Holmes–Laski Letters, Vol. II, p. 1026. And, one might add, since. See The Times, 14 June 1948. Heuston, Lives, p. 481: “Lord Thankerton had a habit of arguing with counsel with some aggressiveness and heat. As so often happens, with the years talkativeness on the bench did not decrease”.

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also bad luck – there were few appointments, some of which called for equity lawyers or Scottish appointments, and, in Atkin and Wright, Scrutton himself had trained two common lawyers of the highest class who were there to compete for those few openings which presented themselves.

10.2 Scrutton v. Hewart It has been suggested that in his final years on the Bench, once Bankes had retired and Atkin had been promoted, Scrutton became “bitter and vindictive”.38 That view to a significant extent reflects two very public disputes in which Scrutton became embroiled with fellow judges. The first was with Gordon Hewart, the Lord Chief Justice. Hewart had been Lloyd George’s Attorney General, and a Liberal MP for Leicester, and had exercised what was then the Attorney General’s right of reversion over the office of Lord Chief Justice of England when it became vacant.39 Scrutton had already overruled Hewart to dramatic effect in the O’Brien case.40 However, the immediate cause of their falling-out came in a rather more mundane context. Faced with a post-war shortage of motor vehicles and a desire to regulate prices, the Motor Trade Association required its members to sell cars at fixed prices, in default of which they would be placed on a “stop list” – other members would refuse to deal with them – unless they paid penalties or took other remedial steps fixed by the rules of the association. In Ware and De Freville Ltd v. Motor Trade Association,41 Scrutton had refused to injunct the association from placing members on a stop list, and in the course of his judgment had made a number of critical observations on the suggestion that a lawful act – refusing to contract with the defaulting member – could be rendered unlawful 38 39

40

The Independence of the Judiciary, p. 33. For Hewart see Robert Jackson, The Chief: The Biography of Gordon Hewart, Lord Chief Justice of England, 1922–1940 (1959) (“Jackson, The Chief”). Hewart had wanted to claim the office when it was vacated by the Earl of Reading following his appointment as Viceroy of India. Lloyd George had need of his services (or was anxious to avoid the resultant by-election), and so Sir Andrew Lawrence was appointed on condition that he provide in advance an undated letter of resignation. He learned of his resignation the following year when he read of it, and Hewart’s appointment, in The Times. Jackson, The Chief, pp. 126–44; John Campbell, F.E. Smith, First Earl of Birkenhead (1983), pp. 479–82; The Times, 4 March 1922. 41 See Chapter 8. [1921] 3 K.B. 40.

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merely by characterising the association’s conduct with “questionbegging epithets”. However, in R. v. Denyer,42 Hewart in the Court of Criminal Appeal had found that it was criminal for the association to seek payment from the defaulting member as a condition of not placing him on the “stop list”, distinguishing the comments in Ware as obiter dicta. In Hardie & Lane v. Chilton,43 a defaulting member who had agreed to pay the penalties under the association’s rules brought an action for damages in reliance on Hewart’s decision. When the case reached the Court of Appeal, Scrutton subjected Hewart’s judgment to destructive analysis before expressing his view that it was obviously wrong. Of Ware, he said, “I do not think the remarks were obiter; anyhow I think they were right”.44 Hewart was furious at his treatment. He struck back, announcing in another decision of the Court of Criminal Appeal that the decision in Denyer was binding in the Court of Criminal Appeal unless and until overturned in the House of Lords.45 A letter to The Times complained about the uncertainty in the law to which the conflicting decisions gave rise, suggesting that Scrutton’s judgment was wrong.46 The issue was not to be resolved for another nine years, when the House of Lords ruled in Scrutton’s favour, without endorsing the full width of the propositions he had formulated.47 A more spectacular falling-out was to follow. In Hobbs v. C.T. Tinling,48 Hewart tried a libel action in which Serjeant Sullivan (last encountered defending Roger Casement), appeared for the defendant. The circumstances of the case were remarkable. William Cooper Hobbs had been convicted of defrauding Sir Hari Singh, heir to the Maharajah of Kashmir, in the “Mr. A” case, by placing the Maharajah in a compromising position with a woman procured by Hobbs to play the part of his wife, and then extracting £150,000, and the promise of £150,000 more, under threat of exposure.49 Having served his two years in prison for conspiracy to 42 44

45 46 47 49

43 [1926] 2 K.B. 258. [1928] 1 K.B. 663. Scrutton believed that considerations of restraint of trade should be given less weight in agreements between commercial entities than in restrictive covenants between master and servant. In English Hop Growers Ltd v. Dering, [1928] 2 K.B. 174, he said, “I have always myself regarded it as in the public interest that parties who, being in an equal position of bargaining, make contracts, should be compelled to perform them, and not to escape from their liabilities by saying that they had agreed to something which was unreasonable”. R. v. Denyer (appeal against sentence), The Times, 24 April 1928. The Times, 26 April 1928. 48 Thorne v. Motor Trade Association, [1937] A.C. 797. [1929] 2 K.B. 1. R.H. Coase, “Blackmail” (1988) 74 No. 4 Virginia Law Review 655; Sullivan, pp. 303–8; Jackson, The Chief, pp. 199–205.

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defraud, Hobbs began suing those newspapers who had published colourful and exaggerated biographies of him, retaining Sullivan to act on his behalf. Hewart ordered two of these actions to be heard together before himself and a jury.50 Sullivan had been a friend of Hewart’s at the Bar, but had a low opinion of him as a judge: Hewart became “an intolerant little tyrant . . . His mind . . . was essentially partisan . . . He made up his mind without hearing a case what justice required and he did not care how that end might be arrived at”. In Hobbs’s case, “justice” required that Hobbs lose the libel case. When Hobbs was called, and a series of allegations unconnected with the alleged libel were put to him by Norman Birkett in cross-examination, Hewart “by every means in his power except express words intimated to the jury that the denial of the plaintiff was conclusive evidence of the truth of the suggestion made against him”.51 This tactic was sufficiently effective for the foreman of the jury to walk into court on the third day and announce that they had already reached a verdict against Hobbs, which Hewart said should be taken. Sullivan insisted on making his closing speech, which Hewart repeatedly interrupted, before a verdict was returned in the defendant’s favour. Hewart then ordered the second action to commence before the same jury the following day. Rather than repeat the previous day’s events, Sullivan applied for an adjournment and sought a ruling that the next case be heard before a different jury and a different judge. When this was refused, and his application for leave to appeal turned down, Sullivan walked out of court and went straight to the Court of Appeal, leaving Hewart to direct the jury to find in the defendant’s favour in Sullivan’s absence.52 The Court of Appeal, Scrutton presiding, directed a new trial in the first action, with regret because they believed that, properly directed, the jury might have come to the same conclusion, and they overturned Hewart’s refusal to adjourn the second action. Scrutton’s judgment was far from intemperate – he probably thought that Hewart’s conduct spoke sufficiently for itself. All the libel actions then settled, Hewart eventually apologised to Sullivan.53 However, he remained furious about having been, as he put it, “Scruttonised”,54 and complained to the Master of the Rolls, Lord Hanworth, about Scrutton’s behaviour.55

50 51 52 54 55

The Times, 1 November 1928. Sullivan, pp. 303–8. See The Times, 5, 6, 7 and 8 December 1928 for the trial. 53 Hobbs v. C.T. Tinling, [1929] 2 K.B. 1. Sullivan, p. 308. After Court Hours, p. 171; Gilchrist Alexander, The Temple of the Nineties (1938), p. 140. Somewhat curiously, the Scruttons were guests at the wedding of Hewart’s daughter that year. The Times, 3 June 1929.

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10.3 Scrutton v. McCardie Scrutton’s row with Sir Henry McCardie played itself out on a more epic scale, prompting questions in the House of Commons and discussions in Cabinet. McCardie had been a successful barrister – very successful if scale of earnings is the true measure of success – who was appointed to the Bench to replace Scrutton when Scrutton was appointed to the Court of Appeal.56 Matters seemed to begin well – Scrutton informed Sir John Simon that “McCardie is admirable” when he heard that McCardie had been appointed to replace him.57 However, the following year, when an appeal from McCardie’s came before him in the Court of Appeal, Scrutton stated, I have with regret come to the conclusion that this summing-up is so inaccurate in its statement of liability or duty, and so inadequate in its statement of the considerations by which it must be determined whether there has been a breach of duty, that if the dock board desire to take the opinion of another jury with a proper direction they are entitled to have that opportunity.58

In Jebara v. Ottoman Bank,59 Scrutton commented adversely on McCardie’s analysis of the principle of agency of necessity in Prager v. Blatspiel,60 stating that McCardie had found facts so as not to raise any question of action by an agent of necessity, but discusses what the law would be, if he had found the facts differently. He takes the view that judges should expand the common law to meet the needs of expanding society, and proceeds to expand the doctrine of agent of necessity without clearly defining the limits, if any, of its expansion.

McCardie, for his part, is said to have observed in one case, “What is of more concern to most women: the construction of a charter party or their own self-expression through the clothes they wear?”61 In Cornish v. Thornett & Fehr,62 Scrutton criticised McCardie for making findings of fact without assessing the evidence in any detail, adding sarcastically, 56

57 58

59 61

62

For McCardie see Henry Archer, Mr Hardie (2003) (a memoir by McCardie’s illegitimate son); and George Pollock, Mr Justice McCardie: A Biography (1934). Scrutton to Simon, 23 October 1916, Bodleian Library, Simon Papers, MS53. Liebigs Extract of Meat Co. Ltd v. Mersey Docks and Harbour Board and Walter Nelson & Son Ltd, [1918] 2 K.B. 381. 60 [1927] 2 K.B. 254. [1924] 1 K.B. 566. The suggestion is that of George Pollock, Mr Justice McCardie, p. 120. However, I have found no record of the quotation. (1929) 33 Lloyd’s Law Rep. 241.

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“A Judge giving judgment on these lines does not save his conclusions from consideration in the Court of Appeal by making frequent general allusions to his view of the ‘demeanour’ of the witnesses.” The explosion came in a scandalous case known as the “Helen of Troy” action, which McCardie tried on the Cambridge assizes. A grocer’s assistant, John Place, sued a local doctor – Dr Searle – for “enticing” his wife away.63 In the course of the case, McCardie raised the issue of whether a husband was the dictator of his wife’s friendships, and in his summing-up he described the legal principle at issue as illustrating “one of the few remaining degradations that rested upon a wife in England”, telling the jury that “for the last fifty years the position of married women in this country had changed in an extraordinary manner”. When the jury were unable to agree, McCardie adjourned the case to London for further argument64 before delivering a judgment.65 In that judgment, McCardie discussed various difficulties with the action of enticement in modern conditions, noting that “many other and, perhaps, still more forcible illustrations will occur to the lawyer who possesses sociological vision”, before concluding with three observations: Firstly, it seems to be clear that the position as between husbands and wives and third parties calls for reconsideration by the law in view of the new status of married women. Secondly, the rights of a married woman to form her independent friendships and enjoy her own amusements can never be solved by the law but must be determined by the standards of loyalty, of courtesy, and of good sense; and, thirdly, that the comfort and happiness of married life rest not on statutes or decisions but on matters that lie beyond and above the realm of law.

The appeal was heard by Scrutton, who ordered a retrial.66 He began by observing that this was “a squalid and not very interesting case” which the newspapers had chosen to elevate on the basis of a supposed resemblance between the wife and Helen of Troy, although “anything less like the god-like Hector and Achilles and ‘the face that launched a thousand ships’” he found it difficult to consider. He concluded, He thought that the less sociological knowledge that was brought to bear in the discussion of legal questions the better. If there was to be a discussion of the relations of husbands and wives he thought it would come better from Judges who had more than theoretical knowledge of 63 64 66

For the trial see The Times, 19 and 20 January 1932. 65 The Times, 12 March 1932. [1932] 2 K.B. 497; The Times, 24 March 1932. The Times, 7 May 1932; [1932] 2 K.B. 497. The latter report is heavily bowdlerised.

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“old scrutton” husbands and wives. He was a little surprised that a gentleman who had never been married should, as he had done in another case, have proceeded to explain the proper underclothing that ladies should wear[67] and he thought that those things were better left out of the discussion of legal questions.

There was clearly a strong personal animus in these comments. McCardie, in correspondence with the Master of the Rolls, Lord Hanworth, claimed that Scrutton had informed him on 29 April – before the appeal was heard – that “he meant to attack me as far as he could on the hearing of the appeal”.68 McCardie claims that Scrutton told him in advance, “I will remember what you said about women’s undergarments and about the relations between husband and wife” and would “take very good care to give it to you in the full on the hearing of the appeal”.69 The reasons for that animus are less clear. Scrutton clearly lacked professional respect for McCardie. Sir Frank Mackinnon suggested that McCardie was someone whom Scrutton “despised intellectually”,70 and Serjeant Sullivan recalled that Scrutton had once told him that “McCardie had acquired his great practice from his reputation of being the most ingenious contriver of expensive procedure at the English Bar”.71 However, it seems improbable that it was McCardie’s subject matter alone which repelled him. Scrutton was quite capable himself of referring to changes in modern family life in his judgments – for example, in his judgment in a libel action brought by the birth control pioneer Marie Stopes, he noted that since the war there had been a change in the public’s readiness to 67

68

69

70

Probably a reference to Martial and Armand Ltd v. Frankau and Wife, The Times, 21 November 1931, considering a husband’s liability for debts incurred by his wife in respect of clothing. In that case, and in Bermal v. Breskel, The Times, 21 October 1931, which arose in a similar context, McCardie engaged in extensive pontificating about the status of women in modern marriage. The decision in Martial and Armand Ltd was also included in Albert Crew’s The Judicial Wisdom of Mr Justice McCardie or, Famous Cases of Mr Justice McCardie: Domestic and Social Relations, Divorce Cases, Legal Cases of General Interest (1932). Conrad Dehn QC has suggested that Scrutton may have come across the Martial and Armand decision from this collection, been “not best pleased by the publication of the book”, and been “happy to knock it”. Conrad Dehn QC, “Mr Justice McCardie – an unusual judge” (a lecture delivered on 28 April 2005 at the Thackeray Society). The book was published after the Court of Appeal judgment in Place v. Searle but it is certainly possible that Scrutton was aware of its imminent publication. McCardie to Hanworth, 7 May 1932, Hanworth Papers, Bodleian Library, MS. Eng. Hist. c.949. McCardie to Hanworth, 23 May 1932, Hanworth Papers, Bodleian Library, MS Eng. Hist. c.949. 71 Oxford Dictionary of National Biography. Sullivan, p. 311.

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discuss subjects such as “the causes, effects and remedies of venereal disease” and “the merits and methods of artificial birth prevention”.72 Nor was he a prude.73 The references to McCardie’s bachelor status and theoretical knowledge of wives are striking. It is now known that McCardie had a mistress installed in the block of flats where he lived and that he had fathered an illegitimate child by her.74 That “secret” was sufficiently widely known for the mistress’s house to be surrounded by press within hours of McCardie’s suicide becoming known. It seems likely that Scrutton was aware of McCardie’s secret life, and that his disapproval of McCardie’s personal conduct was reflected in the tone and terms of his judgment. It has been suggested that Scrutton’s father also had an illegitimate son: the Grand Scrutton family are said to be descendants of a liaison between Scrutton’s father and a maid called Louisa Grand.75 Louisa Grand did give birth to a son on 12 April 1865,76 and the birth certificate does not identify the father. By 1900, the first census after Scrutton’s father died, that son was calling himself John Grand Scrutton, taking the name of the person he claimed to be his father.77 Grand Scrutton lived in Norwich: an area where Scrutton and his wife had relatives, and to which they were frequent visitors. Whatever Scrutton’s motivation, McCardie was outraged. The following day, he wrote to the Master of the Rolls, Lord Hanworth, with copies to Scrutton and Hewart, complaining about remarks which are “grossly and deliberately discourteous”, and said of Scrutton, “the time has come when his insolence should cease”.78 He asked that Scrutton be excluded from any court hearing appeals from his judgments, failing

72 73

74

75 76 77

Stopes v. Sutherland, The Times, 26 and 27 June and 21 July 1923. A limerick written by Scrutton is contained in the Scruttton Papers: “There was a young lady of Pinner / Who became a society sinner / She bolted – they say / To Paris one day / (I’ll tell you the rest over dinner)”. Scrutton’s matter-of-fact attitude to the correspondence from Joseph Smith suggesting one of his wives had infected him with a venereal disease was noted in Chapter 7. Archer, Mr Hardie, p. 1. Archer was that son, “conceived towards the end of May, 1918 . . . in Queen Anne’s Mansions”. At pp. 262–3 he suggests that his mother was not McCardie’s only mistress. The fascinating story of McCardie’s other relationship with the mother of the writer Sybille Bedford, and the novel based on that relationship (Jigsaw: An Unsentimental Education) was one of the subjects of Conrad Dehn QC’s lecture “Mr Justice McCardie – an unusual judge”. Personal communication, Grand Scrutton family. Certified Copy of An Entry of Birth. 78 1891 and 1901 Census returns. Hanworth Papers, MS Eng. Hist.c.949.

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which he would not hand over his notes.79 Hanworth and Sankey – by now Lord Chancellor in Ramsay MacDonald’s National Government – agreed on an appropriate response, which was supportive of Scrutton’s comments. Hanworth said that the Court of Appeal had to be able to express itself fearlessly when a “judge has overstepped the legitimate bounds of his functions and permitted a sense of drama to imperil the dignity and taciturn austerity which are the becoming characteristics of high judicial office”. Describing Scrutton as “the kindest-hearted man”, Hanworth said that, in his view, Scrutton’s comments “were justified and indeed called for”.80 McCardie was not mollified. He wrote two letters to Hanworth the following day,81 suggesting that “many weighty and responsible persons” agreed with his views about Scrutton, and that Place v. Searle was far from being an isolated example of Scrutton’s behaviour: “when I was at the Bar, I was asked to join in a public protest against his malice and gross personal prejudices . . . Since he joined the Court of Appeal he has grown worse rather than better”. He identified Sir Montague Lush82 and Hewart as other judges who had suffered at Scrutton’s hands.83 On 24 May, when he took his seat in court, McCardie announced: If there be an appeal, I shall not supply any copy of my notes until I am satisfied that Lord Justice Scrutton will not be a member of the Court which tries the appeal. If it becomes necessary I will mention at a later date the reasons which lead me to make this statement. I regret that it has become my duty to administer this public rebuke to Lord Justice Scrutton.84

By this point the dispute had attracted considerable adverse publicity, The Times reporting the episode under the headline “Dignity on the Bench” and expressing the hope that “the undignified dispute” would go no further.85 The matter was raised in the House of Commons, it 79

80

81 82

83

84

Archer, Mr Hardie, p. 179, suggests that McCardie found an 1888 Privy Council precedent that a judge’s notes of evidence were his private memoranda. Hanworth to McCardie, 10 May 1932; Sankey to Hanworth, 9 May 1932, Hanworth Papers, MS Eng. Hist. c.949. Letters of 23 May 1932, Hanworth Papers, MS Eng. Hist. c.949. Perhaps a reference to the appeal in Harnett v. Bond, [1924] 2 K.B. 517. Scrutton was generally complimentary about Lush in his judgments, but in this case he ordered a retrial. He might have added Mr Justice Swift. E.S. Fay, The Life of Mr Justice Swift (1939), p. 217, records “the late Lord Justice Scrutton . . . meeting Swift in the judges’ corridor. . . started to complain about the inadequacy of the judge’s note in a case then before him in the Court of Appeal. Swift retorted, ‘I’m not a Court of Appeal note-taker!’ and walked on”. 85 The Times, 25 May 1932. The Times, 25 May 1932.

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being suggested that McCardie’s comments were “calculated to lower the prestige of the judiciary”, but the question was ruled out of order.86 The matter was also raised by the Lord Chancellor in Cabinet,87 in which the incident was linked with the ongoing dispute about judicial salaries.88 Following the National Economy Act 1931, judicial salaries had been reduced by 20 per cent together with other salaries paid by the state, provoking a strong adverse reaction from the judiciary.89 Hanworth decided to bring matters to an end. He summoned McCardie to tea the following day,90 and it was agreed that Hanworth would make an impersonal statement in court on the practice of supplying notes, to which McCardie agreed to respond. Hanworth’s statement duly followed.91 Hanworth referred to the “long tradition” of judge’s notes being made available for appeals, and noted there would be “a serious inroad on the rights of suitors who desire their cases to be reheard before the higher tribunal” if the tradition was not adhered to. McCardie’s statement followed later the same day. He said that he had heard Hanworth’s announcement and would “follow loyally the request he has made”. McCardie and Hanworth met again that day, and McCardie handed over his notes to the next appeal. It appears that Hanworth made efforts to reconcile Scrutton and McCardie but without success.92 86

87 88 89

90

91

92

The Times, 25 and 26 May 1932; HC Deb., 26 May 1932, cols. 553–6. The Times reporter noted, “The severity of Lord Justice Scrutton’s remarks was felt at the time to go beyond the necessities of the case. By discarding the reticence which would have been well understood and approved in the circumstances, Mr Justice McCardie has enlarged the trouble”. NA/CAB/23/71, Cabinet meeting of 25 May 1932. NA/CAB/23/70, Cabinet meeting of 24 February 1932. For this issue see The Independence of the Judiciary, pp. 52–63; Yes Lord Chancellor, pp. 178–89. McCardie’s reaction to the reduction had been particularly strong, and he corresponded extensively with Lord Hanworth on the subject. See Hanworth Papers, Bodleian Library, MS. Eng. Hist. c.949. Scrutton did not hide his own feelings, informing those assembled at Mill Hill to see him make a presentation to Nathan Micklem KC that “today the scourge has fallen upon the Judges. They were told they should do more work and to sit longer hours and in order to force them to do it their salaries were reduced”: The Times, 9 July 1932. Hanworth to McCardie, 24 May 1932 and response of 25 May 1932, Hanworth Papers, Bodleian Library, MS. Eng. Hist. c.949. The Times, 27 May 1932. Drafts appear in the Hanworth Papers, Bodleian Library, MS Eng. Hist. c.949. Evening News, 20 August 1934. In R. v. Buckland, [1933] 1 K.B. 767, Scrutton could not resist another comment at McCardie’s expense, noting that “the numerous cases which appear in the judgment of McCardie J., not all of which owe their presence there to the industry of counsel, have little to do with the question we have to answer”.

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McCardie’s restraint did not last – in July Sankey wrote to Hanworth to say he was “afraid our colleague’s return to sanity was only temporary. His extra-judicial pronouncements increase my morning mail”.93 Faced by rising debts and unsuccessful investments, McCardie committed suicide the following year.94

10.4 Scrutton’s court In this period, the Court of Appeal sat in two constitutions: Court I, presided over by the Master of the Rolls, heard Chancery appeals, and Court II, presided over by the senior common law Lord Justice, heard common law appeals. With Bankes’s retirement, Scrutton became the presiding judge in Court II, and he presided over that court for seven years. It was later said that “his great learning and powerful presence rendered it almost unnecessary to vest him with any particular dignity”.95 Sir Frank Mackinnon thought that during that period Scrutton had “few if any superiors in that position . . . He came to see the wood rather than the trees and developed a mastery of legal principles”.96 For much of that period, Scrutton sat with Lord Justices Greer and Slesser. Slesser had been Attorney General in the Labour Government, and was appointed by Ramsay MacDonald directly to the Court of Appeal, replacing Sir John Sankey, who was to be made Lord Chancellor. Scrutton resisted the appointment, but to no avail. Hanworth wrote to him in June 1929 in a letter marked “very private”, stating, My dear T.E.S. No there is nothing to be done. I regret it. Slesser has been appointed right over Sankey’s head. When Sankey saw me yesterday and told me that he had accepted the post of Lord Chancellor he also told me that he feared that Slesser will be made Lord Justice in his place. He said it was a deplorable appointment and if he had been consulted he would have deprecated it strongly. But Slesser had desired to be made AttorneyGeneral or Solicitor-General and R. MacDonald would not do this. To get him out of the way he has to be given a seat in the C.A.97 93

94 95

96

Sankey to Hanworth, 23 July 1932, Hanworth Papers, Bodleian Library, MS Eng. Hist. d.429. See Pollock, Mr Justice McCardie, Chapter 27. Memorandum of 15 November 1934, NA/LCO 2/1675, raising the issue of whether some form of designation of vice president of the Court of Appeal was necessary in respect of Scrutton’s replacement, to avoid Sir Henry Slesser occupying the position by length of appointment alone. 97 Oxford Dictionary of National Biography entry. Scrutton Papers.

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Slesser, however, was a great admirer of Scrutton’s, saying that if a judge wished to learn his business “he should have sat for as long as possible by the side of Lord Justice Scrutton”.98 He thought Scrutton’s one weakness was “an inability arising out of his great learning and activity of mind to realise the difficulties which his brethren sometimes had in agreeing with him”. As presider, Scrutton did not see it as any part of his function to strive after consensus, in contrast to Hanworth, who took “endless pains to get agreement if he could”. In Scrutton’s view, each judge should state his own opinion, and, in Slesser’s words, “If we concurred, so far good; if we did not, the majority would settle the matter.” No doubt for this reason, Scrutton insisted on a court of three in any appeals in which he sat.99 He remained immensely hard-working, devoting his evenings to reading the next day’s causes. Counsel opening a case could find himself interrupted by Scrutton asking, “what do you say about page one hundred and six in the correspondence?” In dealings with counsel, Scrutton’s manner (and manners) had mellowed still more.100 Theo Chorley’s experience of him dates from this time, and he recalled Scrutton’s judicial manner as “usually benign”, suggesting that his “reputation for impatience and testiness . . . survived long after it had ceased to be deserved”.101 A note from Hubert Parker, son of Lord Parker of Waddington, survives thanking Scrutton for his “charming note” after his first appearance in the Court of Appeal.102 Sir Henry Slesser recalled that “I have seen juniors shake before him, but he was no respecter of rank and would chasten a King’s Counsel with even greater severity”.103 His integrity was renowned: one barrister later recalled Scrutton “declaring an interest in a big dispute with I.C.I. when he had ten shares in that company”.104 When he felt others had not kept to his standards, his response could be severe. A case came before him in which Harold Eaden, a Birmingham barrister representing one of the parties, had recommended his current pupil as his client’s arbitrator. There was no complaint at any stage until the case reached the Court of

98 99 101 102 104

Slesser, pp. 250–3, for this and following. 100 NA/LCO 2/1596. The Times, 21 August 1934. Lord Chorley QC, review of Scrutton on Charterparties, 18th edn, (1975) 38 M.L.R.707. 103 Undated letter, Scrutton Papers. Slesser, p. 251. (1969) 35 No. 1 Arbitration 3. The decision is likely to have been Hillen v. ICI (Alkali) Ltd, [1934] 1 K.B. 455.

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Appeal, when Scrutton took the point of his motion and referred Eaden to a disciplinary investigation by the Middle Temple.105 Scrutton’s memory for case law remained prodigious. Lord Chorley recalled, He seemed to remember every case he had ever been in, or had indeed read. I remember listening to an appeal in which a large number of cases had been cited when Scrutton mentioned to counsel that there had been a case fairly early in the century which “I seem to remember as very relevant to this point”. Counsel replied that he had cited every case mentioned in the text books and looked at all the cases referred to in every case mentioned in the text books. To which Scrutton replied that he had better look again as he remembered the case very well. During the adjournment a study of The Times newspaper revealed the case in question which was in fact very much in point.106

He insisted on writing his judgments out longhand, in contrast to his brethren who dictated theirs,107 and there was an appealing wry tone to many of them. In Verren v. Anglo-Dutch Brick Company (1927) Ltd,108 he noted that “Mr. Justice Roche with incredible patience listened for three days to the discussion of these various minute points and in the end came to a conclusion . . . Mr. Stranger has addressed for a day with equal minuteness. I am afraid we have not listened with equal patience”. His gift for a pithy phrase had not diminished. In Lloyd’s Bank Ltd v. Chartered Bank of India,109 he made his oft-quoted observation that “if my butler for a year has been selling my vintage wines cheap to a small wine merchant, I do not understand how my negligence in not periodically checking my wine book will be an answer to my action against the wine merchant for conversion”. When considering the argument, supported by a citation from Glanvill, that the Crown had a legal duty to protect shipowners operating in the Far East trade from barratry by Chinese crews,110 he observed that “Henry II. would, I think, have been surprised to hear that if his tenant went to China the King was bound to follow and protect him”. He warned one advocate in a marine insurance case that “my temper after lunch is often a ‘constructive total loss’”,111 105

106 107 108 110

See David Woolley, “The Inn as a disciplinary body”, in Richard Havery, ed., History of the Middle Temple (2011), pp. 369–70. The Middle Temple informed Eaden that they did not approve of his actions, but otherwise took no action. Lord Chorley QC, review of Scrutton on Charterparties, 18th edn, (1975) 38 M.L.R.707. Solicitors’ Journal, 25 August 1934, at p. 34. 109 (1929) 34 Lloyd’s Law Rep. 211, at p. 212. [1929] 1 K.B. 40. 111 China Navigation Co. v. Attorney General, [1932] 2 K.B. 197. Slesser, p. 251.

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and he joined the long list of author judges before and since to have greeted the citation of his own work with the response “you are aware that the author of the book is still alive”.112 For all the humour, there is a discernible sense in many of Scrutton’s judgments of this period of a judge “out of sorts”: “out of sorts” with the divergence between commercial expectations and commercial law as administered by the courts, and the divergence between his own view as to how many legal questions should be answered and the decisions of the House of Lords as to what those legal answers must be. Scrutton’s recurring disagreements with the House of Lords on issues of contractual certainty and the right of rejection in sale of goods were considered in the previous chapter. In a number of the leading commercial cases of his last four years on the Bench, Scrutton found himself either on the wrong side of the final outcome or on the fringes of important legal developments. In Bell v. Lever Brothers,113 he favoured the view that the settlement contracts with the directors were invalidated on grounds of mutual mistake, drawing an analogy between the law of mistake and the then somewhat broader view of the doctrine of frustration of contracts.114 In Banco do Portugal v. Waterlow,115 he was once again on the wrong side of a case which split the House of Lords three to two. The divisive issue in this case was whether the claimant bank which had been forced to withdraw and reissue a set of banknotes after the defendant delivered a second set of notes to criminals could recover only the costs of reprinting (as Scrutton thought) or the face value of any new notes issued on the replacement of the forged notes. Slesser recalled that he had “never known one [case] where I felt it was more difficult to make Scrutton understand the opposing point of view: long afterwards, he said to me, ‘I regard Greer’s and your judgments as nonsense’”.116 In Cammell Laird & Co. v. Manganese Bronze and Brass Co. Ltd,117 he was overturned once more in his core commercial

112 113 114

115

116

(May 1929) No. 28 Manchester Guardian Bar Bulletin, p. 4. [1931] 1 K.B. 557, overturned by [1932] 1 A.C. 161 (3:2). The same analogy with the now rather more restrictively drawn doctrine of frustration was one factor which led the Court of Appeal to reject a wider doctrine of equitable mistake in Great Peace Shipping Ltd v. Tsavliris Salvage (International) Ltd, [2003] Q.B. 679. [1932] A.C. 452. Lord Russell of Killowen observed in his dissenting judgment at p. 502 that “I derive some consolation from the knowledge that in this alleged act of violence I am abetted by one whose pre-eminence as a commercial lawyer is both well established and long established”. 117 Slesser, p. 253. [1933] 1 K.B. 141, overturned by [1934] A.C. 402.

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territory on the issue of whether a specific purpose had been made known for the purposes of the Sale of Goods Act. And when the House of Lords handed down the decision in Donoghue v. Stevenson,118 Scrutton was merely a spectator rather than a participant, left to note the delivery by the House of Lords of “a very important judgment”.119 There were other respects in which Scrutton found himself “out of sorts”. His opposition to the Hague Rules, both when giving evidence to Parliament before they were enacted and in the foreword to the last issue of his work on Charterparties which he edited, has already been noted.120 He was unable to put those prejudices aside when it fell to him to decide disputes arising under the Hague Rules. The Rules represented a negotiated compromise between ship-owning and cargo-owning interests (and the countries in which one or other of those commercial interests predominated) under which the shipowners were required to exercise due care in matters relating to the protection of cargo, but were given an exemption of liability for negligence in matters pertaining to navigation or maritime perils. In Gosse Millard v. Canadian Government Merchant Marine,121 cargo was damaged as a result of a failure to replace the covers following repairs to a ship’s hatches. The issue which arose was whether this constituted “act, neglect or default in the navigation or in management of the ship”, with the result that the shipowner was exempt from liability, or constituted neglect of the cargo, in which case it was liable. Scrutton held for the shipowner, rejecting an argument for an interpretation in harmony with that adopted by courts in the United States by quoting Brett M.R. in Svensden v. Wallace122 that he doubted “the expediency of making the law of the greatest commercial and maritime country in the world bend to the law of other countries where commercial operations are far less extensive, and where commercial adventure is far more timid”. Chorley suggests that the judgment was “striking a blow in the interests of shipowners” and an attempt to “torpedo” the Rules.123 The decision was overturned in the House of Lords of Lord Hailsham, Lord Sumner and Lord Atkin, a major reverse for Scrutton in an area of law he had long dominated, Lord Sumner praying in aid the fact that the Rules were “a legislative bargain”.124 Scrutton’s objection to statutory intervention in the field of carriage of goods by sea partly was ideological and partly reflected the difficulties for 118 120 123 124

119 [1932] A.C. 562. Farr v. Butters Brothers, [1932] 2 K.B. 606. 121 122 See Chapter 9. [1928] 1 K.B. 717. (1884) 13 Q.B.D. 69, at p. 72. R.S.T. Chorley, “Liberal trends in present-day commercial law” (1940) 3 M.L.R. 272, at p. 291. [1929] A.C. 223.

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an old man of abandoning a lifetime of learning. However, another factor was his disdain for the huge quantity of poorly drafted legislation which it was left to the courts to make sense of. He made a major contribution to rationalising the Rents Acts,125 ending one case by regretting that he could not “order the costs to be paid by the draftsmen of the Rent Restrictions Acts, and the members of the Legislature who passed them, and are responsible for the obscurity of the Acts, and their failure clearly to provide for such obvious incidents of tenancy”.126 He also delivered a series of judgments on derating legislation,127 “a subject congenial to his analytical mind”.128 When dealing with the Public Health Acts, he bemoaned the fact that a House of Lords judgment required him to reach a particular interpretation,129 condemning the consequences as “ridiculous” and the statute as “a disgrace to English legislation”. In these last years on the Bench, Scrutton as judge encountered the junior barrister A.T. Denning: two commercial law supernovas briefly inhabiting the same orbit, one fast fading while the other began his irresistible ascent.130 Their most memorable case was L’Estrange v. F. Graucob Ltd,131 in which the young Denning persuaded Scrutton that a shopkeeper who had signed an agreement excluding all conditions and warranties was precluded from claiming for a defective slot machine. Denning later recalled the case:132 At the Bar I was concerned to win the case. I was not concerned with what was right or wrong. I said to Lord Justice Scrutton, producing some old case, “Look at this, she signed it. It doesn’t matter that she didn’t read it; it doesn’t matter if she couldn’t read it because the print was too small; it doesn’t matter if it was most unreasonable. She is still bound”. Lord Justice Scrutton said “Yes, in the absence of fraud or misrepresentation she is bound to pay the instalments”. To tell you the sequel my Lords that reporter in the courts did not report the case at once. He did not think so much of it, but my company had it privately printed and I went round the county courts of England winning case after case most unrighteously.

125

126 127 128 129 130 132

Roe v. Russell, [1928] 2 K.B. 117; Lloyd v. Cook, [1929] 1 K.B. 103; Haskins v. Lewis, [1932] 2 K.B. 1; Fordree v. Barrell, [1931] 2 K.B. 257. Roe v. Russell, [1928] 2 K.B. 117, at p. 130. Bailey v. Stoke-on-Trent Assessment Committee, [1931] 1 K.B. 385. The Times, 21 August 1934. Hill v. Aldershot Corporation, [1933] 1 K.B. 259, at p. 264. 131 The first reported encounter is Peech v. Best, [1931] 1 K.B. 1. [1934] 2 K.B. 394. HL Deb., 23 May 1977, cols. 1119–20. See also Lord Denning, The Family Story (1981), pp. 99 and 174–5.

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10.5 Recognition at home and abroad While promotion to the House of Lords eluded him, Scrutton’s judicial merits and service did receive some extra-judicial recognition. At home, Cambridge University decided to award Scrutton an honorary LL.D.,133 together with Sir John Simon and Scrutton’s former pupil, Sir Cecil Hurst: an occasion followed by lunch in Sidney Sussex Hall at which Scrutton gave the vote of thanks.134 The clarity and learning in Scrutton’s judgments had also attracted a favourable following in the legal community in America. Scrutton himself was a close follower of developments in American law and legal thinking. At one dinner party, Harold Laski recalled Scrutton “in superb form” discussing an article by Roscoe Pound, describing him as “the kind of man who thinks that four square references make a four-square truth”.135 Scrutton regarded Oliver Wendell Holmes as someone “whose views on English as well as on American law are entitled to the most respectful consideration”.136 He thought the United States Supreme Court “one of the finest courts in the world”,137 and was no doubt gratified to find himself cited by it.138 He was a friend of the leading American admiralty lawyer Charles Culp Burlingham,139 and expressed regret to Karl Llewellyn that he had never had the opportunity to see the US system in action.140 He had even suggested to Chief Justice Taft that he should adopt a “Commercial Court system”, but was told that the American people “wouldn’t give their judges such a free hand as we do”.141

133 134 135 136

137

138 139 140 141

Cambridge University to Scrutton, 13 March 1928, Scrutton Papers. The Times, 8 June 1928; Scrutton to Cambridge University, 7 June 1928, Scrutton Papers. Laski to Holmes, 25 March 1929, Holmes–Laski Letters, Vol. II, pp. 1142–3. Liddle v. Yorkshire (North Riding) County Council, [1934] 2 K.B. 101. See also Lazard Brothers v. Midland Bank, [1932] 1 K.B. 617, at p. 632 (“that distinguished American judge”); Hardie & Lane v. Chilton, [1928] 2 K.B. 306, at p. 314; Ware and De Freville Ltd v. Motor Trade Association, [1921] 3 K.B. 40, at p. 68 (“the admirable judgment of Holmes J.”). On the last see Holmes to Laski, 9 October 1921, Holmes–Laski Letters, Vol. II, p. 374. Evidence Taken before the Royal Commission on Delay in the King’s Bench Division (Cd.7178) 1914 P.P. 37/21, at p. 106. In Princess Paley Olga v. Weisz, [1929] 1 K.B. 718, at p. 724, he expressed surprise that the judge at first instance had regarded a particular point as bad when “it was based on three decisions of the Supreme Court of the United States”. Brandeis J in Whitney v. People of State of California, 274 U.S. 357 (1927). Felix Frankfurter, “A legal triptych” (1961) 74 Harvard Law Review 433. Scrutton to Karl Llewellyn, 25 November 1930, Karl Llewellyn Papers, Box 52, IX.4. Scrutton to Karl Llewellyn, 25 November 1930, Karl Llewellyn Papers, Box 52, IX.4.

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When the Canadian and American Bar Associations invited a party from the English Bench and Bar to attend their conferences in 1931, they informed Sir Claud Schuster, the Lord Chancellor’s principal private secretary, that they were “most anxious” that Scrutton be included in the party.142 In anticipation of his inclusion, Columbia University asked Scrutton to deliver the Carpentier Lecture, stating that “the members of our faculties of law and political science, and the University as a whole, would greatly welcome your coming”,143 and Yale University asked him to give the Storre Lectures.144 Scrutton had to decline: “my wife’s health is such that I do not wish to leave her so long a time and distance, and myself at 73 am very doubtful whether I can survive the ferocious hospitality of America lawyers”.145 Pressed again by Schuster the following year, he once more declined.146 Karl Llewellyn, then at Columbia, was a particular devotee, and he offered to dedicate his sales book to Scrutton: The gentleman understood the gesture. He understood too that it was but a gesture. He was not greatly interested. Why should he be? He was shortly to die, after a record of dissents in his own court, dissents in commercial cases, of which he understood, and he knew he understood, more than his majority and the judicial members of the House of Lords together.147

This depiction of Scrutton as a judge caught between his desire to give judgments which accorded with the expectations of the commercial community and his obligation to follow conflicting decisions of the House of Lords also features in Lon Fuller’s debate with H.L.A. Hart on the competing merits of positivism and natural law, Fuller positing the case of a trial judge who has had an extensive experience in commercial matters and before whom a great many commercial disputes are tried. As a subordinate in a judicial hierarchy, our judge has of course the duty to follow the law laid down by his supreme court. Our imaginary Scrutton has the misfortune, however, to live under a supreme court which he considers woefully ignorant of the ways and needs of commerce. To his mind, many of this court’s decisions in the field of commercial law simply do not make sense.148 142 143 144 145 146 148

Schuster to Scrutton, 21 April 1931, Scrutton Papers. Columbia University to Scrutton, 9 January 1930, Scrutton Papers. Yale School of Law to Scrutton, 6 January 1920. Draft letters to Columbia and Yale, Scrutton Papers. 147 Schuster to Scrutton, 27 April 1921, Scrutton Papers. Warranty I, at p. 708. Lon L. Fuller, “Positivism and fidelity to law: a reply to Professor Hart” (1958) 71 Harvard Law Review 630, at p. 646.

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10.6 The end In 1929, when well into his sixth decade as a lawyer, Scrutton considered an insurance claim in respect of a barge which had sunk in unexplained circumstances: She had had 50 years of life on the Mersey carrying coal. Fifty years is not at all an impossible age for barges; in London in my experience there are barges running which are older than 50 years and apparently doing their work properly, but there comes a time when even the most hardworking barge begins to show signs of old age . . . In my experience it is quite common that at last a barge sinks with apparently no reason for her sinking except that she is getting too old to float any longer and has got tired.149

While Scrutton retained his forensic energy to the end of his life, outside court his life began to “show signs of old age” as he entered his seventies. In 1927, he resigned from the CLE and its Board of Studies, and he attended his last Middle Temple Parliament the following year.150 His last recorded match at Royal Ashdown Forest was in April 1928.151 He stopped playing golf for the Middle Temple and the Bar Golf Society in 1929,152 and this was also the last year in which he entered the Sheringham tournament with Canon Ashmall.153 Old age brought poorer health, and reports of his inability to sit became more frequent.154 Harold Laski, who found Scrutton “wholly delightful” as a dinner companion,155 began to refer to him as “old Scrutton” in correspondence,156 prompting Oliver Wendell Holmes to respond, “I . . . slightly tremble to hear you talk of ‘poor old Scrutton’ whom I haven’t got over thinking of as a promising young man.”157 Four years later, he was still doing his work properly, but 149

150

151 152

153 154 155 156

157

Wadsworth Lighterage & Coaling Co. Ltd v. Sea Insurance Co. Ltd, (1929) 34 Lloyd’s Law Rep. 285. The last attendance recorded is at a dinner on 29 March 1928. There were other dinners after this, but no attendance at Parliament. 9 April 1928, information from Royal Ashdown Forest Golf Club. He played his last match for Middle Temple in a Scrutton Cup win in October 1929. The Times, 11 October 1929. He had pulled out of the Bar Tournament earlier that year. The Times, 23 May 1929. See The Times, 3 September 1928 and 9 September 1928. The Times, 20 February 1929, 22 February 1929, 26 April 1929, 8 May 1930. Laski to Holmes, 23 August 1928, Holmes–Laski Letters, Vol. II, p. 1077. See, for example, letter of 26 July 1930, Holmes–Laski Letters, Vol. II, p. 1271: “I also had a pleasant lunch with old Scrutton LJ who spoke of the law with the pride of one of its prophets”. Holmes to Laski, 10 November 1930, Holmes–Laski Letters, Vol. II, p. 1296.

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like his Mersey barge he too was beginning to show signs of old age, and was getting tired. In June 1934, he was unable to sit for several days due to bad health.158 At around this time, Scrutton became concerned that his intellectual powers were fading. He had noticed “a slight decrease of power in various small ways such as pointed to something not quite right”,159 and it seems that Lord Hanworth, the Master of the Rolls, had noticed it too.160 He delivered his last judgment on 27 July 1934 in Working Harbour and Dock Board v. Trade Indemnity.161 When legal term ended, he seemed to Sir Henry Slesser “the embodiment of vigour”, telling him he was off to play golf as “the worst player in the law”,162 and went off to enjoy the long vacation. On holiday he “enjoyed doing all his usual things”, but on 17 August he was taken ill with a recurrence of hernia trouble and taken to hospital in Norwich by ambulance.163 It was decided that an operation would be pointless, and he died “peacefully and without pain” in the night. Rather like his old Mersey barge, the doctors said it was “more as if he had suddenly reached the end of his tether and let go”. Scrutton had left a note directing “that he should be buried without any of the idle forms of the Christian religion”, but the “idle ceremonies” had already been performed before the note was found:164 a small service in Norwich, attended by Lord Hanworth, but which Lady Scrutton and his daughter Janet were apparently too ill to attend.165 Writing to Hanworth shortly after the funeral, Lord Sankey said that “Scrutton did a good day’s work and is entitled to his rest”.166 The obituaries which followed recorded his immense learning and contribution to English law, but issues concerning his temperament – both when first appointed as a judge and in his fall-out with McCardie – featured prominently.167 This was the source of some upset for the family. Janet complained that “we know that he laid himself open to 158 159

160

161 163

164 166

167

The Times, 14, 15 and 16 June 1934. Janet Scrutton to Lord Hanworth, 18 August 1934, from the Burlington Hotel, Sheringham. Hanworth Papers, Bodleian Library, MS Eng. Hist. c.950. Janet Scrutton to Lord Hanworth, 27 August 1934, Hanworth Papers, Bodleian Library, MS Eng. Hist. c.950. 162 (1934) 49 Lloyd’s Law Rep. 430. Slesser, p. 251. Janet Scrutton to Lord Hanworth, 18 August 1934, Hanworth Papers, Bodleian Library, MS Eng. Hist. c.950 for this and following. 165 Midgley, p. 46. Undated press cutting, Scrutton Papers. Sankey to Hanworth, 27 August 1934, Hanworth Papers, Bodleian Library, MS Eng. Hist. d.429. The Times, 21 August 1934; Manchester Guardian, 21 August 1934.

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journalistic shafts but how could anyone call him irritable, uncouth and petulant we simply cannot imagine. If ever there was a man with an even, perfectly controlled temper it was father”.168 In formal legal circles, the assessment was somewhat kinder. When Mr Justice Crossman sat shortly after his death was reported, members of the Bar in court referred to “the great loss that the Bench and Bar and the whole country had suffered by the death of a great lawyer and great judge”.169 On 2 October, a special service was held at Westminster Abbey, after which the judiciary and Bar assembled in the Court of Appeal for a series of speeches.170 The Lord Chancellor, Lord Sankey, referred to “a career sufficient to satisfy the ambition of any lawyer” and recounted the key milestones in a career which he no doubt suspected had ended one step short of fulfilling Scrutton’s own ambitions. His note either not yet found or ignored, a further service followed in Temple Church, at which his son Tom officiated.171 In his will he left £105,000 – the equivalent of nearly £4 million in 2012 values. Lady Scrutton died in March 1940.172

10.7 Scrutton today Judicial reputations do not generally wear well. The obituaries are invariably full of praise for the legal acumen of the judge, and pay tribute to an extensive contribution to the common law. However, memories of the commanding presence of a judge in court die with the counsel who appeared before him. The judgments remain – but many of these, too, lose their lustre, either because issues at the apex of legal life in one age become irrelevant to a subsequent generation, or because the changing path of the common law excises them from the body of legal orthodoxy, or merely because changing judicial styles render them old-fashioned. Scrutton’s career has not quite followed the reverse path: his presence and legal learning were extensively acknowledged in the months following his death. However, those favourable verdicts were invariably qualified, whether by reference to the issue of his temperament, or, in Mackinnon’s criticism in his entry for what was then the Dictionary of National Biography, by reference to Scrutton’s lack of originality. Lord Sumner had died in the same year, a few months before, and Mackinnon’s entries clearly marked Sumner as the greater judge and 168 169 171

Janet Scrutton to Lord Hanworth, 27 August 1934, Bodleian Library, MS Eng. Hist. c.950. 170 The Times, 23 August 1934. The Times, 3 October 1934. 172 The Times, 4 October 1934. The Times, 9 March 1940.

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commercial lawyer: “the finer brain . . . a better scholar . . . one of the greatest judges of his time”.173 Theo Chorley, writing six years after Scrutton’s death, compared the old adversaries by suggesting that Scrutton “had perhaps more of the genius of the common law [but] a less disciplined mind, and his judicial career can only be described as wayward”, suggesting that Scrutton lacked “the patience and mental discipline ever thoroughly to adjust his outlook” to “a new world drawing away from the old philosophy”.174 While Sumner’s reputation has followed the usual trajectory, Scrutton’s has grown. Subsequent generations of lawyers reading law reports are not troubled by the temperament of the judge who delivered them. Scrutton has proved very much a “judge’s judge”, his confident and concise judicial prose providing a quality hallmark for a judge searching for the right answer to a difficult problem. Lord Denning “always liked to find, if I can, authority from Scrutton L.J., who was one of the greatest judges of my time”,175 and for Lord Morris of Borth-y-Gest, he was “one of the great judges of this century”.176 When Anthony Lentin was researching his biography of Lord Sumner, Lords Goddard, Roskill and Denning all told him that Scrutton “was the greater lawyer”.177 Readers of A.W.B. Simpson’s Biographical Dictionary of the Common Law178 will find Scrutton’s career treated at much greater length than Sumner’s: Sumner now “an outstanding stylist” but “not a path breaker”, Scrutton heralded as Llewellyn’s “matchless commercial lawyer”, whose academic career was equally distinguished. It is Scrutton’s reputation as a commercial lawyer which has proved most durable, and which has preserved him as a figure in the modern legal memory, helped by his distinct appearance: as a contemporary put it, “he might in appropriate garb have represented one of those who withstood King John or some tall Cornish adventurer”.179 Most modern commercial lawyers would be hard put to identify Lord Sumner from a rogue’s gallery of judicial portraits, but Scrutton remains immediately recognisable. However, Scrutton’s judicial qualities do not lie only in his learning or intellect. When Scrutton presented the prizes at Mill Hill 173 174

175 176 178 179

Sir Frank Mackinnon, Dictionary of National Biography entry for Lord Sumner. R.S.T. Chorley, “Liberal trends in present-day commercial law” (1940) 3 M.L.R. 272, at p. 273. Chorley felt compelled to dissent from what he descried as Llewellyn’s “eulogy” for Scrutton, “great as is his admiration for the best work of the learned Lord Justice”. Kemshead v. British Transport Commission, [1958] 1 W.L.R. 173. 177 HL Deb., 4 December 1969, col. 238. Lentin, p. 260. A.W.B. Simpson’s Biographical Dictionary of the Common Law (1984), at pp. 224, 467. (1934) 178 No. 131 Law Times.

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School in July 1923, he referred to current remarks in the political world about “the need of first-class brains”. Scrutton told those present that “the boy with a first-class character would get ahead of one who had only a first-class brain . . . Character was indeed all important”.180 Scrutton had a first-class brain, but also a first-class judicial character – in his independence, his objectivity, his fearlessness, but also in his recognition that his judgments formed part of a system of law, the proper workings of which required him to have regard to the judgments which had preceded him, and to follow authorities which were binding upon him even when he disagreed with them. In January 2012, after the Commercial Court took up residence in the Rolls Building in Fetter Lane, Scrutton’s letters patent as KC and judge were put on display, at a ceremony at which two of Scrutton’s great-grandsons were present. There could be few better reminders of the qualities to which those working in that building should aspire. 180

The Times, 2 July 1923; Mill Hill Magazine July 1923.

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INDEX

Abinger, Edward 98 Alexander, Gilchrist 217, 255 Alexander, Isabella 122–3, 134 Alma-Tadema, Lawrence 130–1, 137 Anglo-Irish relations/Home Rule 16, 42, 52, 79–82 antecedents 1–27 the Scruttons 1–2 shipping/shipbroking family 1–3, 5–6 Scrutton’s father see Scrutton, Thomas Urquhart (‘Thomas the younger’) Scrutton’s mother 6, 10 Thomas Scrutton (“Thomas the elder”) 2–4, 6 the young Scrutton see young Scrutton appearance 45–6, 110, 254, 319–20 Asquith, Herbert 89–90 Eighty Club 78–9, 87, 103 Home Rule 79, 88–9 Prime Minister 117–18, 163, 179 Atiyah, Patrick 278 Atkin, Lord 219–20, 245 champion of judicial independence 248–9 in the Court of Appeal 90, 219, 225 Scrutton and Atkin 220–4 House of Lords appointment 107, 225, 295–9 judgments/cases 204, 220–4, 230, 235–6, 245, 287–8 legal education 257–8, 260 Scrutton’s pupil 106–7, 116 Atkinson, Lord 231–2, 295 Austin, John 29–32, 105–6

The Province of Jurisprudence Determined 28–9 author 60, 95, 120–49 books see Charterparties and Bills of Lading; Elements of Mercantile Law, The; Laws of Copyright commentary on Merchant Shipping Act 147–8 consulting editor on Sweet and Maxwell’s Commercial Laws of the World 148–9 copyright see copyright the Scrutton machine 147–9 Select Essays in Anglo-American Legal History, contribution to 147 Yorke Prize-winning essays 60–1, 120–1, 124–5, 141–7 copyright law 120–1, 141–2 influence of Roman Law on laws of England 120–1, 141–5 laws relating to commons and enclosures in the UK 120–1, 146 laws restraining the alienation and settlement of land in England 120–1, 144–6 reviews 143–7 Baldwin, Stanley 207, 236, 297 Balfour, Arthur 41, 133, 135–6 Bankes, Sir John Eldon 97, 172, 214–15, 219–21, 224–5, 230–1, 295 Bar practice see legal career Barstow Scholarship/Jane Barstow 61, 67 Bentham, Jeremy 122 Principles of Morals and Legislation 86

339

340

index

Bigham, Sir John 94–5, 102, 105 Birkenhead, Lord (F.E. Smith) 201–3, 208, 213, 297 Bowstead, William (A Digest on the Law of Agency) 139 Bracton (Law and Customs of England) 143, 162 Bryant, George 108 Bryce, James 74–6, 83 Buckmaster, Lord 199, 231–2, 295 Burstall, Sara 68 Burton, Mary (Scrutton’s wife) see under family life and marriage Caldecott, Alfred 47–8 Cambridge Union 52–8 reports of debates 55 Scrutton debating 33, 45, 53–7, 74–6 Scrutton running for election to the committee 54–5 Scrutton as president 44, 56–8 Cambridge University Cambridge Review 45 Scrutton’s letter to 43 honorary LL. D. awarded to Scrutton 314 Newnham College 42, 66 religious “test” requirement 17, 28 Trinity College, Scrutton studying at 34, 37–46, 59 admitted as a Pensioner 38 as a ‘Cambridge figure’ 45–6 college examinations 41–2 completing University of London LL.B., first part, and MA 35 cycling see Cambridge University Bicycling Club debating see under Cambridge Union Fellowships at Trinity 65–6 first class honours 42, 45, 73 First Trinity Boat Club 46 foundation scholarship awarded 42 LL.B. 44, 58, 66 Moral Sciences 38–9, 43–4, 66 Moral Sciences Club see Cambridge University Moral Sciences Club

prizes 42 Senior Jurist in Law Tripos 45 Senior Whewell scholarship in international law 42–3, 73 sport 46, 49–52 Trinity men/Trinity-type 37–8 tutored by Image 40 tutored by Nicholson 40 tutored by Sidgwick 40–2, 122 tutor supervision 39–41 Yorke Prize see under author Cambridge University Bicycling Club 49–52, 58 Scrutton officiating 51 Scrutton’s races 50–1 Cambridge University Law Society, Scrutton’s talks to 100, 104, 173, 217–18, 225–6 Cambridge University Moral Sciences Club 46–9, 76 papers presented by Scrutton 47–8 Scrutton as founder member 46–7, 58 Campbell-Bannerman, Henry 37–8 career see author; judicial career; legal career; political career; teaching law Carson, Lord (Sir Edward Carson) 170, 231, 294, 296, 298 Casswell, Joshua 238 Cave, Sir George 79, 88, 293–4 Chamberlain, Joseph 75–6, 80–2, 88 character and interests 11–12, 35, 98–9 activities see Climbing Club and walking; cycling; golf “clubbable” 52, 74, 110 debating see Cambridge Union; see under University College London (UCL) education of lawyers see education of lawyers family, attitude to see under marriage and family life memory 11, 310 political interests see political career religion/atheism 15, 17, 157, 174–5, 220, 317 temperament see temperament writing see author

index Charterparties and Bills of Lading 6–7, 34–5, 60, 138–41, 147, 175–6, 271, 278 reviews 139–40 Chaytor, Alfred 103, 115, 171–2 children and grandchildren see under family life and marriage Chorley QC, Lord 221, 310 Chorley, Theo 270–1, 283, 289, 309, 319 Circuit, on see under judicial career Clark, Professor Edwin Charles 44 on Scrutton 44–5 Clarke QC, Sir Edward 25–6, 93, 109 class and the judiciary 225–33 ‘politics of the judiciary’ 226–7 Poplarism: minimum wages 229–33 Poplarism: obligation to collect precepts 227–9 workmen’s compensation cases 226–7 Climbing Club and walking 108–9, 146, 254 Cohen QC, Arthur 75–6, 101–3, 121, 134, 141, 144 Coke, Lord 162, 204 Coleridge, Lord (Sir John Coleridge) 17, 91, 97, 102, 109 Commercial Court see under legal career Commercial Judge see under judicial career Congregationalist Church 3–4, 7–8, 15 contracts contractual relations, effect of war on 190–2, 272 freedom of contract 278 consumer contracts 276–9 Hague Rules, Scrutton and 278, 312–13 standard form contracts 276–8 frustration of contracts 190–2, 272 interpretation of contracts 273–6 copyright 121–4, 126, 129 copyright activist 129–33 appearing before House of Lords Select committees 132–3 drafting legislation 131–3 reform 137–8 repelling pirates 134–7

341

Council of Legal Education see under education of lawyers Country Life 109–10 Court of Appeal 44, 90 appointed 155, 199–200 class and the judiciary see class and the judiciary commercial legacy/reputation as “finest commercial lawyer” 159–60, 249–54, 319–20 House of Lords overruling, reaction to 253–4, 311–13 intellectual rigour, judgments characterised by 251–2 judgments as precursors to later development in law 250–1 leading judge and dominant personality, established as 200–2 memorable phrases marking judgments 252–3, 310–11 sale of goods cases 250 shipping law cases 249–50 in the Court of Appeal 219–25 confluences/contrasts in backgrounds of judges 219–20 judgments and approaches to appeals 220–4 strongest Court of Appeal to sit on a regular basis 219 emergency legislation see war and the law final cases before death 316–17 judiciary and the executive 236–49 arrogance of Government 236 Brady and O’Brien: Regulation 14B 237–45 judicial champion 248–9 Wiltshire Dairies: taxation by the executive 246–8 judicial temperament see under temperament “old Scrutton” see “old Scrutton” passed over for promotion 107, 225, 254, 295–6, 298–9 presiding judge in common law Court of Appeal (Scrutton’s court) 308–13

342

index

Court of Appeal (cont.) as a judge “out of sorts” 311–13 as a realist judge see realist judge, Scrutton as Russian revolution 233–6 nationalisation/expropriation of property 233–5 status of foreign branches of nationalised Russian companies 235–6 war, cases during see under war and the law Craddock, Percy 46, 57 on Scrutton 45 criminal cases see under judicial career; war and the law cycling see Cambridge University Bicycling Club; London Bicycling Club Daily News, The 83–4 Dangerfield, George The Damnable Question 79 The Strange Death of Liberal England 163 Darling, Mr Justice 154, 170, 183, 204, 209–10 debating see Cambridge Union; see under University College London (UCL) Denning, Lord 219, 221, 313, 319 Dicey, Albert Venn 76 A Digest of the Laws of England with reference to the Conflict of Laws 139 Law of the Constitution 86 Dictionary of National Biography 65, 114, 117, 156, 318–19 Digby, Kenelm 117–18, 144 on Scrutton 62 Dilke, Sir Charles 52 Duman, Daniel 61, 94 Edmonds, David (Wittgenstein’s Poker) 46 education 8 industrial schools see industrial schools

of lawyers see education of lawyers Scrutton children’s education see under marriage and family life school career see under young Scrutton university career 58–9 see also under Cambridge University; University College London education of lawyers 257–61 Council of Legal Education, Scrutton’s role with Chairman of Board of Studies 257 Empire, students from 259 Middle Temple representative 257 resignation 260, 316 solicitors’ examinations 258 women students 258–9 views on inadequacy of legal education in England 260 Eidinow, John (Wittgenstein’s Poker) 46 Eighty Club 78–9, 82–3, 86, 89–90, 97, 100 Home Rule/Eighty Club revolt 87–9 Elements of Mercantile Law, The 68–9, 147 executive and judiciary see under Court of Appeal family life and marriage 71–4 children 16, 74, 107, 109, 118–19, 154, 177–9 education 15–16, 107, 118 religion 15 in the war 180–6 domestic life 108, 118, 177–9 Christmas 64, 107–8, 256 Circuit, during life on 154 family, attitude to 15–16 holidays 109, 118, 175, 178, 256, 317 move to London flat 255–6 music and theatre, enjoying 72, 177–8, 254–5

index grandchildren 256 Mary Burton (Lady Scrutton) 184, 194, 315, 317 background, Mary Burton’s 71–2 courtship and engagement 46, 56–7, 60, 66 Scruttons’ marriage/relationship 73–4, 108, 172 see also antecedents female emancipation and education 33, 42, 53, 118, 258–9 Finlay QC, Robert 25, 201 formalism see under realist judge, Scrutton as Frame, Alex 36–7 Fraser, Hugh 105–7 Frazier, J.G. (The Golden Bough) 40 Fuller, Lon 315 Gladstone, Herbert 75–6, 80 Gladstone, William Ewart 16, 53–4, 75–6, 78, 103 Home Rule 80–2, 87, 97 Glasgow Herald, The 110–11 Globe, The 16 Glover, T.R. 66 golf 109–10, 175, 254, 316 golfing cases 176–7 granting injunction on golf links 175–6 Scrutton Cup 256–7 “grand tour” 34–5 Granta, The 45 Gutteridge, Professor H.C. 107 Hague, Nigel 110 Hailsham, Lord (Sir Douglas Hogg) 230, 240–1, 243 Haldane, R.B. 49, 78–9, 87, 89–90, 166, 172, 199, 225, 294–5 Hamilton, J.A. see Sumner, Lord Hammond, B.E. 66 Hanworth, Lord 296, 301, 304–9, 317 Harcourt, Sir William 61, 80 Hartington, Lord 80, 87–8 Hastings KC, Patrick 216, 242 Hawkins, Mr Justice 21, 25–6 Henn-Collins, Stephen 106–7

343

hereditary principle, opposition to 16, 35, 57, 166 Heuston, R.F.V. 151–2 Hewart, Lord (Sir Gordon Hewart) 79, 239, 242–3, 296, 305 and Scrutton 299–301 Hickman, Mary (Scrutton’s mother) 6, 10 Holmes, Oliver Wendell 109, 232, 245, 298, 314, 316 Home Rule 16, 42, 52, 79–82 see also under political career Horridge, T.G. 110–11, 151–2, 203 Humphreys, G.E. 48–9 Image, John Maxwell 40 on Scrutton 40 “industrial schools” 8, 19–21 see also School Board scandal inheritance of estate from Urquhart family 16 internment 207–10, 237–45 Ireland 294 Home Rule 16, 42, 52, 79–82 internment in Irish Free State 240–5 internment in pre-independence Ireland 237–40 Restoration of Order in Ireland Act/ Regulations 237–44 James, Sir Henry 77–8, 80, 87, 97 Jessell M.R., Sir George 31 Judges’ Council 201–2, 226 judicial career 96, 150–79 on Circuit 153–5 during the war 199 social life 154–5 Commercial Judge 159–63, 170–1 significant first instance judgments 161–3 constitutional rights 175 Court of Appeal see Court of Appeal criminal cases 155–9 accomplishment as a criminal judge 156–7 “Brides in the Bath” case 155–6, 192–8 sentencing 157–9

344

index

judicial career (cont.) emergency legislation see war and the law family cases 174–5 frustration of contracts 190–2, 272 golfing cases 176–7 judicial independence 168, 248–9 judicial salaries 201–2, 306–7 judicial temperament see under temperament knowledge of case law 115, 292, 310 libel cases 174 precedent doctrine, binding effect of 160–1, 168, 320 prelude to an appointment 150–2 appointed commissioner of assize 150–1, 155–6, 173 appointed to the Bench 151–2 missing camaraderie of the Bar 152 as realist judge see realist judge, Scrutton as Revenue Paper (taxation appeals) 163–9 trading with the enemy cases see under war and the law varied nature of judicial cases 173–5 war, during see war and the law judiciary and class see class and the judiciary and the executive see under judicial career judicial appointments 293–9 House of Lords 293–9 judicial salaries 201–2, 306–7 Keith-Falconer, Honourable Ion 50–1 Kenny, Dr Courteney Stanhope 121 Outlines of Criminal Law 44 on Scrutton 44 King’s College London 28, 47, 69–71 Labour Weekly 232 Land and Water 55 land law reform 120–1, 144–6, 166 Land Union (Land Defence League) 165–6, 168 Lansbury, George 227, 232

Laski, Harold 217, 226, 232–3, 245, 260–1, 298, 314, 316 Law Journal 93 Law Quarterly Review 100, 139–40, 142–3, 145–8 Law Times 91–2, 99–100, 139, 143–5, 151 lawyers’ education see education of lawyers Laws of Copyright 121–4, 126, 129, 138–9, 142–3, 147 legal career 15–16, 43, 66 advocate, Scrutton as 114–17 copyright advocate 124–9 descriptions of Scrutton as advocate 115–16 knowledge of case law 115, 292, 310 written opinions 116–17 the Bar in the 1880s 91–5 brief fees and refreshers 92–4, 103–4 clerks/clerks’ fees 93–4 devilling 95 difficulties 91–2 Commercial Court 100–5 fee levels 103–4 need for dedicated commercial court 100–2 physical demands of practice 105 Scrutton’s busy junior practice 102–3 Scrutton’s income 104–5 judicial career see judicial career pupil barrister 60–3 Barstow Scholarship 61 pupil master 105–7 Middle Temple see Middle Temple in Silk 110–14 applying for Silk 110–11 Scrutton and Hamilton 113–14 social life 117–18 volume and nature of work 111–13 starting out/building practice at the Bar 60, 95–100 advantages of Scrutton’s background 94–5 commercial work 99–100

index criminal cases 98–9 father’s libel action (first court appearance) 25, 27 Lentin, Antony 232–3, 319 Lewis, Geoffrey 221, 224, 296 Llewellyn, Karl 260, 262–4, 270, 314 The Bramble Bush 263 The Common Law Tradition 264, 266–7 problem of certainty 279 qualities and characteristics of a realist judge 264–7 right of rejection in sale of goods 284 on Scrutton 159–60, 226, 267–8, 286, 298, 315, 319 standard form contracts 276–9 third party interests, protection of 289 Lloyd George, David 79, 104, 201, 293–4 “People’s Budget” 163–8 London and Counties Liberal Union 74–7, 85, 90 London Bicyling Club 63–4 Scrutton as representative on National Cycling Union 63 social events 63–4 London School Board for Tower Hamlets see School Board scandal London University 60, 69 Scrutton’s involvement with proposed teaching university 69–71 Loreburn, Lord (R.T. Reid) 79, 87–90, 103 appointing Scrutton 150–2, 166 Lushington, Godfrey 21–2 McCardie, Hubert 174–5, 302–8, 317 MacDonald, Ramsay 297, 308 Mackinnon, Sir Frank 106–7, 113–14, 140–1, 179, 304 on Scrutton 65, 72, 74, 95–6, 101, 106, 113–15, 117, 156, 171, 308, 318–19

345

McNair, Arnold 192, 272 Maitland, F.W. 146–7 Malden, Professor 31 Manchester Guardian 173, 236–7 Mansfield, Lord 159–60, 266 marriage to Mary Burton see under family life and marriage Marshall Hall, Sir Edward 93, 110, 193–4, 197 Martin, Professor Ged 52 Mathew, Lord Justice 97, 102–3, 269 Maurice, General Sir Frederick 181 Micklem, Nathan 15, 33, 37, 59, 173 Middle Temple 43, 61, 316 limited participation in Middle Temple activities 256–7, 296 Bencher 117–18, 184, 209 expelling Chattopadhyaya 209 scholarship to 43 Midgley, Mary 11, 47, 64, 72–3, 107, 118, 174–5, 178–9, 256 Mill Hill School 4–5, 7, 11–15, 59 dissentient tradition 4, 17 Mill Hill Magazine 7, 13–15 first edition 13, 16 Scrutton’s obituary 14, 68, 173 Scrutton’s role 13, 16 Old Millhillians Club 14–15, 17, 59 in retrospect 16–18 Scrutton at Mill Hill 11–15 Head of School 14 Mill Hill Magazine 13, 16 prizes 13–14, 30–1, 42, 96–7 relationship with school/later visits 14–15, 96–7, 319–20 Thomas the younger’s contribution 8–9 and University College, London 17–18 Morley, Professor Henry 29–30, 32 Morley MP, Samuel 75 Murray, Sir James August Henry 12–13 Murray, John 41, 96, 123, 129, 132, 137, 141–2 music and theatre 72, 177–8, 254–5 Musical Defence League 135–7

346

index

Newbolt, Henry 186 Nicholson, Joseph Shield 40, 48 on Scrutton 40 Nonconformist churches 3–4, 7–8, 18 Congregationalist Church 3–4, 7–8, 15 removal of bars on Nonconformists studying at Oxbridge and Durham 17

Poplarism see under class and the judiciary Popper, Karl 46 Powell, Enoch 67 Priestley, Thomas 5 Protest Dissenters’ Grammar School see Mill Hill School Protestant Society for Religious Liberty 4

obituaries 107, 317–18 Mill Hill Magazine 14, 68, 173 The Times 172, 317 “old Scrutton” 293–320 passed over 107, 225, 254, 295–6, 298–9 Scrutton v. Hewart 299–301 Scrutton v. McCardie 302–8, 317 Orwell, George 192–3 Ostrogorski, M. 76, 85 Oxford and Cambridge Undergraduate Journal 55 Oxford Dictionary of National Biography 45, 62, 65 Oxford English Dictionary 12–13 Scrutton’s contribution 12 Oxford University 17, 28

Reading, Lord (Rufus Isaacs) 79, 125, 203 realist judge, Scrutton as 262–92 certainty, problem of 279–83, 311 consumer contracts 276–9 freedom to contract 278 standard form contracts 276–8 interpretation of contracts 273–6 considerations of business purpose 275–6 context in which words used 274 formalist and realist approaches 273–4 qualities and characteristics of a realist judge 264–7 realism v. formalism 291–2 right of rejection in sale of goods 283–8, 311 Scrutton’s commercial “situation sense” 267–73 difficulties with realist project 272–3 expectations/needs of business community 268, 271, 273, 315 knowledge of practices of commerce 267–73, 315 third-party interests, protection of 288–91 recognition see reputation and recognition Reid, R.T. see Loreburn, Lord religion 53–4 Nonconformist churches see Nonconformist churches and Oxford and Cambridge Universities 17, 28 Scrutton 15, 17, 157, 174–5, 220, 317

Pall Mall Gazette 84, 88 Parnell, Charles Stewart 80, 89, 98 Phillimore, Sir Walter 79, 154, 199 Pickford QC, William 102, 111, 183, 209–10 political career 60, 73 Eighty Club 78–9, 86–90, 100 grassroots activism/hearings before Revising Barrister 86–7 Irish Home Rule 42, 48, 53–4, 56–7, 60, 80–90 London and Counties Liberal Union 75–7, 90 in retrospect 89–90 standing for election 82–5, 89–90, 166 Pollock, Frederick 71, 102, 109, 139–40, 143–7, 255 Digest of the Law of Partnership 138–9

index reputation and recognition commercial legacy/reputation as commercial lawyer see under Court of Appeal honorary LL.D. from Cambridge University 314 recognition abroad 314–15 Scrutton today 318–20 Robertson, Professor George Croom 31–2 Romer QC, Robert 121, 141, 144, 296 Royal Academy 132–3 Russell, Lord (Sir Charles Russell QC) 25–6, 79, 97, 102, 116, 296–7 Russian Revolution see under judicial career St. John’s Wood Art Club 130–3 sale of goods 250, 283–8, 311 Salisbury, Lord 80 Salmond, Sir John 36–7, 67–8 Torts 68 Sankey, Lord 116, 154–7, 206–7, 245, 260, 296, 306, 308, 317–18 School Board scandal 18–27 St Paul’s Industrial School scandal 21–4 Home Office initial inquiry ordered 21–2 Home Office stance 23 public meetings 23–4 School Boards’ inquiry 22–4 withdrawal of school’s certificate 23 libel proceedings against Helen Taylor by Thomas the younger 24–7 agreed damages/clearing of Thomas the younger’s character 26 School Boards determining religious education policy/CowperTemple clause 18–19 Shaftesbury training ship, dispute as to costs of 20–1 Thomas the younger chairman of Industrial Schools Committee 19, 24 elected member of Tower Hamlets Board 19–20, 74–5 resignation 24

347

Upton House, allegations of cruelty/ mismanagement at 20 women members of London School Board, perceptions of 19–22, 26 Scrutton, Alan Edward 74, 107, 109, 178, 256 military service 180–1, 184–5 Scrutton, Frank 109 Scrutton, Frederic 6–7, 10–11, 18, 34 Scrutton, Hugh Urquhart 74, 107, 154 military service 179–83, 262–3 Hugh’s death and Scrutton’s reaction 184, 220 reported missing 183 Scrutton, James 6–7, 11, 18, 34, 109 Scrutton, Janet 18, 74, 133, 154, 172, 178, 255, 317 education 107, 118, 178 nursing in the war 182 on Scrutton 11, 16, 73 Scrutton, John Austin 74, 107, 178, 200 military service 180–1, 185, 262–3 Scrutton,Thomas (“Thomas the elder”) 2–4, 6 Scrutton, Thomas Urquhart (“Thomas the younger”) 4–9, 305 career 5–7, 94 charitable/educational works 7–9, 15–16 founding St Paul’s Industrial School 21 see also School Board scandal supporting the Shaftesbury training ship 20–1 education 1 Liberal politics 20, 74–5 religion 7–8, 19–20 Scrutton, Tom Burton 74, 107, 118–19, 178–9, 225, 318 marriage and children 182, 184, 256 military service 181, 185 ordained 178–9, 182 Scrutton’s reaction 178–9, 220 shipping law cases 249–50 Sidgwick, Henry 39–42, 48 The Methods of Ethics 41 on Scrutton 41

348

index

Simon, Sir John 155, 200, 206–7, 230, 238, 302, 314 Simpson, A.W.B. (Biographical Dictionary of the Common Law) 319 Simpson, Professor Brian 144 Simpson, T.B. 45 Slesser, Lord Justice 228, 308–9, 311, 317 Smith, Archibald Levin 62, 95, 116, 121, 124, 138 on Scrutton 62 Society of Authors 129–30, 132 Solicitors’ Journal 116, 151–2, 156, 200 Sorley, W.R. 41 Spectator, The 31, 146 sporting events 255 Stephen, Herbert 43 Stephen, James Fitzjames 43, 57 Stephen, J.K. 57 Summers, William 37 Sumner, Lord (J.A. Hamilton) 79, 190, 231–3, 318–19 Hamilton and Scrutton 88–9, 95, 102, 110–11, 113–14, 318–19 judicial career 119, 293, 297 Surr, Elizabeth 19–24, 27 Taddei, Antonia 90 Tatler, The 110 Taylor, Helen 19, 21, 24–6 teaching law and lectures 260–1, 269 Council of Legal Education 124 see also education of lawyers Incorporated Law Society 68–9, 147 Newnham College and private tuition 66 at UCL see under University College London (UCL) temperament described in obituaries 172, 317 judicial temperament 169–73, 318–19 abhorrence of wasted time and costs 217–18 in Court of Appeal 215–18 criticisms of solicitors and solicitors’ response 170–1 effect on promotion 172–3

humour 216–17, 310–11 inexperienced barristers, sympathetic towards 173, 217 litigants in person, helpful towards 173 as presiding judge in “common law” Court of Appeal 215, 309–10 self-criticism 215–16 as a private person 12, 172, 317 Thomson, Sir Joseph John 56, 65 Thornely, Thomas 39–40 Times, The 23, 98, 115–16, 128–9, 157–8, 199, 300 Atkin’s appointment to House of Lords 296 Bar practice, reduction in 91 “Brides in the Bath” case 195 Carriage of Goods by Sea Bills 141 Eighty Club 78, 88 encroachment of increasing bureaucracy, Scrutton resisting 248–9 Finance Act (1910), Scrutton’s judgments on 167 Home Rule election 85 McCardie, Scrutton’s dispute with 306 School Board scandal 23–4, 26–7 Scrutton’s appointment to the Bench 152 Scrutton’s appointment to Court of Appeal 199–200 Scrutton’s obituary 172, 317 Scrutton’s temperament 172, 215 Shaftesbury training ship 20–1 Trinity College Cambridge see under Cambridge University Twining, William 263–6 Twiss, Sir Travers 143–4 University College London (UCL) 11–12, 122 Debating Society 32–4, 53–4 women undergraduates 33 foundation 28–9, 69 John Austin’s influence 28–9

index scientific and secular approach 28–9, 32–3 law at UCL 28–9, 36–7 and Mill Hill School 17–18 non-resident university 29 Scrutton as Professor at UCL 12, 60, 62, 65–9 appointed to Constitutional Law chair/teaching law 67–9, 73 Fellowship 66 resignation 68–9 Scrutton studying at UCL 29–32, 34–8, 59 Debating Society 33–4, 53 English language and literature 29–30 first-class honours 17–18, 30, 37 Latin and Greek 31 LL.B. 35–7, 58 Logic and Philosophy of the Mind 31–2 MA 35, 37, 58 prizes 31 and University of London 60, 69–71 “The War and the Law” lecture, Scrutton’s 185–6, 202 Vanity Fair 121 Veeder, V.V. 100 Vernon Harcourt, Sir William 23 Vorspan, Rachel 190 Walton QC, Joseph 102, 110–11 war and the law 180–214 on Circuit 199 contractual relations, effect of war on 190–2, 272 Board of Trade committee considering effects of war 273 criminal cases 192–9 “Brides in the Bath” case 155–6, 192–8 Sir Roger Casement’s case 203–5 Defence of the Realm Act/ Regulations 205–6, 210 advisory committee 206–7, 210

349

internment 207–10 Ronnfeldt case 210 deportation of aliens/“disguised extradition” 210–11 judiciary’s role 98–9 emergency legislation 205–6, 209–11 response to exigencies of total war 180 protection of property 212–14 court challenging executive power to preserve own jurisdiction 213–14 the Scruttons at war 180–6 trading with the enemy cases 186–90 judicial vent given to hardening public mood 188–90 suspension clauses 188–9 “The War and the Law” lecture, Scrutton’s 185–6 Waraker, Thomas 45 on Scrutton 44 Watson, Eric 194–5 Weymouth, Dr Richard 11–12, 17 on Scrutton 12 Whewell, Dr 42–3 Whitely, Cecil 156 Whitman, Walt 57 Wilkes, John 4 Winstanley, D.A. 39 Wittgenstein, Ludwig 46 Wood, Thomas McKinnon 33 Wrenbury, Lord 231–2 Wright, Lord 17, 106–7, 172–3, 192, 282, 297–9 Yorke, Edmund/Yorke Prize 60–1, 120–1 see also under author young Scrutton 10–16 Mill Hill School see under Mill Hill School UCL see under University College London (UCL) The Wick preparatory school 10 religion in early childhood 10