- . . . . tlJ-'^p,,.

YALE UNIVERSITY
LIBRARY

1937

POINTS OF VIEW

POINTS OF VIEW

BY
THE RIGHT HONOURABLE
THE EARL OF BIRKENHEAD
D.L., D.C.L.^ P.C.
HIGH STEWARD OF OXFORD UKIVERSITY
LORD RECTOR OF GLASGOW UNIVERSITY

IN TWO VOLUMES
VOL. II

HODDER AND STOUGHTON
LIMITED LONDON

Printed in Great Britain iy R. & R. Claek, Limited, Edinburgh.

CONTENTS OF VOL. II

PAGE

X. Courts-Martial ....... 1
XI. Law Reform  29
XII. Lady Gwendolen Cecil's Life of Lord Salisbury 65
XIII. The late Sir Samuel Evans .... 83
XIV. Neil Primrose . . . . .124
XV. Jack Scott ........ 136
XVI. Edward Horner . . . . . . .142
XVII. Judges and Politics ...... 147
XVIII. A New Party  192
XIX. The Reconstruction of Civilisation . . . 220
Index ......... 235

X
COURTS-MARTIAL
The unexpected nature and extent of the adminis- x.
trative problems which faced army chiefs as the
late War unfolded its course have been a constant
subject of discussion and illustration in the hands
of both military and civil narrators of war experi
ences. The creation of services and departments
hardly dreamt of before the War by even the
most imaginative of staff officers had, at its close,
produced much amazing improvisation, absorbed
much man-power, and added greatly to the
congeries of employments which so long defied
the efforts of the demobilisation branch of the
War Office. But at the outset the necessary
services were slow to realise a tenth part of the
changes which modern warfare demanded. The
military mind notoriously runs in grooves, and,
whatever the vigour and initiative displayed in
progress along an established track, the first
start in a fresh direction is too often a slow and
uneasy effort. Army reform is indeed as difficult
as law reform, and the conservatism of lawyers
is matched by that of soldiers.
It will not, I think, be without interest to trace
the progress and effect of what was at once both
a military and a legal reform, the development,
VOL. II I B

2 POINTS OF VIEW
X. namely, of a special military service which,
though small by comparison with others, pro
vided at the end of the War sufficient contrast
with its modest beginning.
The original Expeditionary Force of six Divi
sions took with it, attached to Sir John French's
Headquarters Staff, a single adviser in military
law ; officially he was the Deputy of the Judge-
Advocate-General who remained at home, and
his prospective existence had been recognised in
a single paragraph in Field Service Regulations:
The "D.J.A.G."^ in due course established himself
as a well-recognised official, helpful, diligent,
unprejudiced, and experienced in both civil and
military law.
The system of law he was called upon to
administer needs an explanation which must in
some degree be technical. A soldier upon enlist
ment provides the clearest modern instance in
English law of a distinct legal status such as
Roman law defined with so much care. He is
not the only instance, for he shares the distinction
with infants, lunatics, and trade unions. With
out losing in all respects his status as a civilian,
he acquires a new status which it is the main
function of military law to define and regulate.
It is with the internal rather than with the ex
ternal aspect of this status that military law deals.
The relation of the soldier to the civilian remains,
for the most part, regulated by ordinary law.
Yet military law is, in its origin and authority
and from a technical standpoint, ordinary law.
Apart from some few surviving elements of the
' Brigadier-General MeUor, K.C.

COURTS-MARTIAL 3
Royal prerogative it is all based on statute. It x.
is in the Army Act that the soldier (if he ever
look) finds his duties and his rights ; and that
Act is, of course, as good law as any other Act of
Parliament, But the status it establishes is a
thing apart. Once enlisted the soldier has by
law — Act of Parliament, that is — to be where
he is wanted. Absence from that place (unlike
the absence of the office boy whom the attractions
of a Wednesday football match have drawn away
from the call of his employer's bell) may entail,
upon conviction by court-martial, a punishment
of two years' imprisonment with hard labour.
The soldier must obey orders of superiors ; the
result of failure again may differ widely from
that of the civil breach of the contract of service
which a workman commits when he disobeys his
foreman's orders ; if committed " in such a
manner as to show wilful defiance of authority "
when on active service, it may indeed entail a
sentence of death. The mere display of a lack
of moral quality — courage — may in similar circum
stances have a similar result. Such results are
not imposed upon soldiers by the arbitrary will
of their commanders (as is sometimes ignorantiy
supposed), but by the positive enactment of an
Act of Parliament.
Rights as well as duties are dealt with and
defined by the same statute. The soldier's pay
is a statutory right, and cannot be withheld at
the caprice of his commander. His status itself
is in many ways safeguarded. A soldier once
appointed a non-commissioned officer cannot
arbitrarily be reduced. A conviction for an

4 POINTS OF VIEW
X. offence by court-martial, or a special reference
to the War Office or other high military authority,
is necessary. His right of expressing his griev
ance, while limited, is rigidly safeguarded by law ;
collective action he may not take, but he has a
statutory right to make complaint to his com
mander. That commander must in his turn
forward the complaint to still higher authority
if required to do so.
It is as a " person subject to military law "
that this status belongs to soldier and officer
alike. The phrase is the governing one through
out the Army Act, and indicates that a special
class with a special status is the main subject-
matter of the Act, and that the Act affects,
generally speaking, no one but that class. The
status belongs to the soldier wherever he goes,
whether at home, or abroad, or in captivity.
It is necessary in an explanation designed
chiefly for those who are not lawyers that I
should here mention (if only to distinguish it)
that " martial law " which means so much more
a state of facts than a state of law, and which
has no relation to the Army Act nor, apart
from special cases, any statutory basis. To the
Enghsh lawyer it indicates ordinarily the rights
and powers of the Government, normally exer
cised through its military subordinates, to main
tain order and security and its own authority.
Such an assertion becomes necessary in the face
of a hostile foreign army or population, or of
insurrectionary movements at home, causing the
disruption of the civil order, and failure of the
ordinary civil institutions to suppress them.

COURTS-MARTIAL 5
The clearest case of martial law occurs when x.
the territory of an enemy state is occupied by
the military forces of the Crown, Martial law
arises here automatically with the laws of war,
a branch of international law which is recognised
and adopted as the municipal law of this country.
Here, as the Duke of Wellington said in the oft-
quoted phrase, martial law is simply the will of
the Commander-in-Chief, bound only by the laws
of war. The authority of the enemy state itself
is in suspense ; and the authority of the invading
army- is substituted. Upon the Western front
no such situation arose until Lord Plumer with
the Second British Army advanced into German
Territory at the end of 1918. Of the legal
system which he then enforced upon the occupied
area I shall have a word to say later. It did not
affect his own Army, which carried its own
status with it.
The system of trial by courts -martial is an
integral part of the system of military law which
I am discussing.
No court-martial held to deal with the offence
of a person subject to milita,ry law is the arbitrary
creation of a military commander, exercising its
powers merely as his delegate. It is a statutory
tribunal bound by rules laid down in the Army
Act, or in regulations made by the authority of
the Act, and its powers are enforced upon it by
the Act. By virtue of the Act its sentences are
enforceable. The law of evidence prevailing in
civil courts is expressly applied by the Act to the
proceedings of a court-martial.
By military custom and arrangement military

6 POINTS OF VIEW
X. discipline comes under the jurisdiction of the
Adjutant-General. It is obvious that in any
war the control and supervision of the whole
system of trial by court-martial must form a
highly important and technical part of the duties
of his branch, and that in the late War the tre
mendous growth in the size of the Expeditionary
Force must have enormously increased the volume
of work of that branch of the Staff. One special
feature of a court-martial is that its decision
against an accused person is not valid until it
is confirmed by superior authority, and that its
convictions may be quashed, or its sentences
mitigated, upon review by still higher authority.
This process of review must necessarily prove a
serious item in the work of the commander of
any large formation and of his staff. I speak
primarily of the situation on the Western front,
where for a period I had personal experience of
staff duties ; but my remarks have, I know, a
general application to the smaller theatres of
war. Laborious and responsible duties were at
the same time cast upon regimental officers.
The training which a regular officer received in
court-martial duties before the War and his
experience in military discipline and military
human nature probably made a peace-time court-
martial, which for the most part dealt with
purely military offences, a good average instru
ment for administering military justice. But
during the War trials increased in number, while
the officers of seniority and experience available
as members of courts decreased. Those that
remained could ill be spared from the urgent

COURTS-MARTIAL 7
work of commanding, training, and refitting x.
their troops.
It might have been expected that an early
effort would have been made to create a staff
of officers with legal training to assist in working
this important and growing side of the daily
work of the Expeditionary Force. The start,
however, as in so many things, was somewhat
late. Of the early stages of the matter I had
myself some small personal experience. I had
been serving in France with the Indian Corps
since November 1914 on Sir James Willcocks'
Staff. My own duties were remote from those of
the Adjutant-General's branch ; and the troops
with which I came into personal contact were
mostly Indian. But I saw and heard enough
of the feelings and difficulties of regimental and
subordinate staff officers to see the need for a
change, and I pressed it, though quite unsuccess
fully, when opportunity arose, on the Staff. No
profession contributed from civil life a larger
proportion of recruits to the commissioned ranks
of the armies in the field than the Bar, and it
appeared to me plain that a due supply of officers
with legal experience would be available if a
proper organisation were set up.
Early in 1916 I returned to England on my
appointment as Solicitor-General in Mr. Asquith's
second Government, and found in more exalted
quarters the same difficulty that was harassing
officers in the field. Lord Kitchener sent for
me and asked me to undertake for him the review
of such court-martial proceedings as came before
him on appeal to the highest authority. For

8 POINTS OF VIEW
X. every one that the Secretary of State in pre- War
— days had to read in a month, he was, he stated,
now confronted with at least eighty, and it was in
consequence quite impossible for him to giye
any real attention to them, I acted for him in
this capacity until his death, and for subsequent
Secretaries of State until my appointment as
Lord Chancellor, reviewing in all many thousands
of cases. Finding a soldier of his experience and
eminence thus open-minded in accepting expert
civihan help, I seized the opportunity to press
most urgently upon him my views as to the need
of the Army in France of similar help. He
welcomed the idea, and after that the obstacles
to the scheme diminished.
It grew, indeed, fairly rapidly, and in so doing
presented two aspects.
On the one hand, it was needful to provide
more personnel for the control and supervision
of the judicial system as a whole. For this
purpose a second-grade staff post was created
for each Army Headquarters, and was reserved
for officers who were qualified lawyers, and who
had received special instruction in military law.
For these officers direct personal access to their
Army Commanders was secured as a matter
of daily routine. Decentralisation was likewise
effected thereby, and the presence of a legal
expert nearer to the troops in action than the
Deputy - Judge - Advocate - General at G.H.Q.
ensured greater promptitude in advice and review.
Growth of duties later rendered necessary the
addition of a staff captain, similarly qualified, at
each Army Headquarters. Base headquarters were

COURTS-MARTIAL 9
afterwards staffed on the same lines. The Deputy- x.
Judge -Advocate -General (under whose friendly
and intelligent guidance the whole scheme grew)
remained the final resort in case of difficulty.
When this scheme was flrst instituted, a
second-grade staff post in the lofty atmosphere
of Army Headquarters was still an object coveted
by comparatively senior professional soldiers,
though later, as the whole organisation swelled,
civilians In such positions became extremely
common. But the importation of non-pro
fessionals for legal duties at a comparative early
point in the War did not by all accounts beget
the jealousy or friction which might have been
expected. The practical advantages which
occurred were too obvious ; and many a hard-
pressed staff colonel did not trouble to conceal
his satisfaction at being relieved of the mass of
technical and other detail which would have been
entailed by the daily presence of a batch of court-
martial proceedings with a view to satisfying the
possible searching curiosity of his Army Com
mander. The other aspect of the scheme more nearly
touched the common earth of army life. The
Field General Court-martial was strengthened by
the addition of an expert member. In the peace
time system the need for the expert was some
what vaguely recognised by the presence of a
judge-advocate who acted as clerk of the court,
and who might be a lawyer of experience, but
who might also be merely an officer with a better
knowledge of the formal requisites of a trial than
his fellows. The regulations for the active service

10 POINTS OF VIEW
X. court-martial do not provide for such an adviser,
and he could only be introduced by being appointed
a member of the court. The expedient was a
simple one seeing that courts-martial were not
permanent courts ; and all that was needed was
the addition of the requisite name in the con
vening order. It was assuredly an advantage
that the expert thereby became an actual member
of the court, bound by its oath, and responsible
equally with his fellow-members for its decision.
The scheme was launched tentatively and with
an apprehension that in the light of events seems
comic, but which the constant narrowness of the
army view rendered natural. The instinct of the
regimental officer to resent the interference of
interlopers from without, and especially from
above, unless clearly clothed with the authority
of senior rank and established position ; the
doubts of the senior (and presiding) officer lest
his dignity should suffer by the appearance of
taking advice ; the possible resentment of the
accused, usually a private soldier, at being tried
by some one who is not one of "our crowd";
and the suspicion which foolish laymen appear to
entertain of all lawyers, were all weighed anxiously
in the balance. Experience showed thatj with
ordinary tact upon the part of the expert, the
fears were groundless, and in the later develop
ment of the system even tact was hardly indispens
able, so welcome and so essential did the presence
of the expert become. By the latter period
almost all the surviving professional soldiers with
court-martial experience had attained positions
which reheved them of court-martial duties, and

COURTS-MARTIAL 11
their successors were civilians who had learnt x.
their soldiering in the school of recent experience,
varied by periods of instruction, both of which
had accustomed them to the intrusion of the
specialist expert, and in neither of which had the
study of military law been prominent. Such
officers when confronted with a day of court-
martial duty turned eagerly to the court-martial
officer on his arrival and gladly left the practical
direction of the proceedings to him, reserving to
themselves the watching and weighing of the
human drama before them, and providing in
themselves the military experience and local
knowledge which must always remain the chief
element in the military system of justice. So
great was the success of the system that it was
rapidly extended, and ultimately a sufficient
number of court-martial officers was appointed
to secure that ordinarily every trial would have
an expert member on the court.
The duties of these officers were of several
kinds :
First, they kept the court straight as regards
formal technicalities. What is easy routine to
a man who does a thing every day is a bewilder
ing maze to those who do it at intervals, as so
many of us realise when we are called upon to
make up our Income Tax returns. To many
regimental officers the duty of presiding over a
court-martial at intervals of several months must
have resembled an actor's experience at an un
rehearsed " flrst night." To the court-martial
officer it was merely as one night in a long run.
Next, the court-martial officer took the record

12 POINTS OF VIEW
X. of evidence. The subsequent process of confirma-
tion and review, so vital a feature of the system
of military justice, necessitates a proper note of
the proceedings. There is nothing in which the
uninstructed layman may fail so grievously as
in this process. I read many thousands of such
records ; and in the earlier days of the War I
was struck with the inequality of the work. The
difficulty in which the reviewing authority is
placed by a bad record is obvious. The some
what perverse failure of inexpert tribunals to
record essential facts because they do not become
prominent as matter of controversy was par
ticularly distressing.
An illustration (imaginary but sufficient) will
show what I mean. Private Smith having been
shot dead by the gross negligence of Private
Jones while cleaning his rifle in rest billets, a
court-martial is rightly ordered on a charge of
manslaughter. The court (entirely composed of
non-legal officers) investigates the case with
scrupulous care and notes down all the details
of the actual occurrence where controversy might
arise, and discloses evidence which leaves no
doubt of Private Jones' neghgence or of the fact
that Private Smith was shot as a result of it.
But the story of the occurrence as recorded in
the evidence of the witnesses who saw it omits
any evidence that Private Smith died as the
result of his wound.
Yet lack of evidence of death leaves a charge
of manslaughter a little ill-proved; and the
lawyer who reviews the proceedings begins to
wonder how the Brigadier allowed himself to

COURTS-MARTIAL 13
conflrm them. But stay, the last witness is the x.
company-sergeant-major, who arrives when every-
thing is over, and only wants to say that he put
the prisoner under arrest and sent him to the
guardroom. This irrelevance the court records
with due solemnity, and likewise an addition
which the witness makes to complete the account
of his own proceedings, " And after that I told
the men in the hut to remove the body," Here,
therefore, quite by accident, we get it recorded,
and by reading the evidence all together it may
just sufficiently be inferred (only just) that the body
was that of Private Smith, that it was a dead body,
and that the rifle-shot was the cause of the death.
Very probably the earlier witnesses had said that
they saw Private Smith dead, after he was shot,
but as everybody knew it, and no one disputed
it, the court had not troubled to record it in the
right place, as an integral part of the case to be
proved. The evidence of the medical officer was
probably too much for which to hope.
The presence of a lawyer, accustomed to con
sider, when advising on evidence, what are the
essential elements of a crime, ensures that the
essential evidence will not be omitted from the
record, and that, if it were omitted, it is because
the evidence was not available.
Another obvious duty of the court-martial
officer was to advise the court on the admissibility
of evidence. The civil law of evidence, as I have
said, governed the proceedings, and laymen could
not be expected to apply it without guidance.
In the simple cases it was indeed surprising to
find how little harm was done even when such

14 POINTS OF VIEW
X. assistance was lacking. But here, too, much waste
 of time was often involved in earlier days. The
illustration I gave above suggests a human trait,
which often marked military witnesses — a tend
ency to wander from the relevant facts into a
description of their own doings, which generally
included a detailed account of the superiors
whom they went to find, and the reports which
they made to them. These doings recorded with
sympathetic interest by a non-legal President as
proof of conduct in accordance with regulations,
though having no bearing on the issue in the
case, prolonged proceedings and assisted to ob
scure vital facts. Moreover, the introduction of
so much hearsay evidence in this way afforded a
risk of prejudice to justice.
In the actual situation the presence of a legal
expert afforded the chief security that trial by
court-martial resulted in justice. It was the duty
of the court-martial officer to see that the court
made a proper investigation of the case ; and
that the evidence given was thoroughly weighed
when the court was closed for considering the
findings. The danger of an inexpert tribunal
always is that the enquiry will not be pushed
home as it should be, or that the probing of the
facts will be misdirected. The lack of both
expert prosecutor and expert defender made the
danger in the case of a court-martial on active
service far greater. That the court would itself
direct the investigation appears to have been
assumed as a matter of military tradition, and in
the absence of skilled advocates on either side
was no doubt often necessary. The presence of

COURTS-MARTIAL 15
the court-martial officer helped to ensure that x.
the investigation would be complete, and that all
the facts favourable to either side would be
elicited. The duty of a court-martial to protect the
interest of the accused is clearly established by
military custom and tradition, but the presence
of the court-martial officer, working on the lines
mentioned, was an additional security that this
duty would be thoroughly fulfilled. Much dis
cussion arose after the War as to whether Army
Regulations should be amended so as to provide
for expert advocacy in aid of the defence at a
trial by court-martial. I myself doubt very much
whether on active service such a system would
be possible as a general rule ; and I think the need
for it has been much exaggerated.
The mere fact that the prosecution as a rule
had no expert advocate suggests that the system
itself did not involve unfairness between the two
sides. The forensic efforts of the youthful ad
jutant who " took his place as prosecutor "
hardly ever went beyond the summoning-in of
the witnesses for the prosecution from outside,
and the proffer of the prisoner's conduct sheet at
the end.
As the adviser of a reviewing authority, who
had to wade through many pages of ill-written
matter, I never ceased to resent the respectful
regard for rank which generally led the prosecutor
to summon his witnesses in order of seniority,
without any regard to the chronology of the
events to be given in evidence. No doubt the
presence on both sides of experienced advocates

16 POINTS OF VIEW
X. would in some cases have made things easier for
the courts and avoided the risk of error.
But many cases were of a simple description,
and on the lines of a police court case, such as
are generally dealt with at home without expert
advocacy on either side. In more difficult or
complicated cases the need for such assistance
became apparent. But here, again, a fairly satis
factory attempt was, I think, made to meet the
need. In such cases the court-martial officer
could sometimes be spared to prosecute or de
fend, while still more often an officer with a legal
training, who was doing duty with his unit, could
be obtained to act as prisoner's friend.
The main safeguard in all such cases, however,
really lay in the nature of the officers composing
the court, and the strength of their desire for
justice. The English character, often lacking
imagination, is strong in its sense of justice. The
officer class during the War was typically English,
and the conviction of an innocent man would
have been abhorrent to all. Moreover, the justice
administered was, for the most part, to the men
with whom they themselves fought, whose dangers
and sufferings they shared, and with whom they
had the indefinable community of spirit that
permeates a fighting service. The facts that the
subject-matter of their enquiries was itself so
much part of their own existence, that they were
not investigating the concerns of people whose
circumstances and manner of living were wholly
different from their own, that in effect they were
like a professional body investigating a breach
of professional etiquette alleged against its own

COURTS-MARTIAL 17
members, provided a safeguard against the mis- x.
chief that must normally result from the exercise
of judicial powers by persons untrained by forensic
experience. A Field General Court-martial, com
posed of officers inspired and experienced as I have
described and strengthened by a legally trained
mind, in the main gave good and effective justice.
So far as my experience goes, the main risk of
injustice to an accused person arises in those
cases where an officer, over-anxious about the
discipline and efficiency of his force, and desirous,
it may be, of averting criticism from himself, may
seek to prove a case, and secure a conviction, for
motives ulterior to those of justice. I touch upon
a notorious evil of army life which operates more
widely in the sphere of promotions and appoint
ments perhaps than in the judicial system. An
ambitious senior may seek to cover his own mis
takes at the expense of his subordinates. Great
activity in dismissals and replacements after a
failure may serve to divert the criticisms of his
superiors from the defects of his own scheme of
operations, and create an impression of vigour
and resource that will ensure success at the next'
attempt. The danger exists in all ranks, and
one may expect to find it in the last-made lance-
corporal as well as in the most senior officers.
The fact that it is rare must not blind us to its
existence ; and I for my part scrutinised pro
ceedings with the utmost care, if the situation
suggested that a charge had in any way a basis
in a desire to shift responsibility, or turn the
flank of an expected attack upon the officer
making the charge.
VOL, II c

18 POINTS OF VIEW
Here again I do not doubt that court-martial
officers formed a safeguard. Trained in a system
where judicial independence is a remorseless tradi
tion, they were bound to strengthen a court
against dictation from outside ; while the arrange
ment by which they were attached to head
quarters of the highest formations gave them an
independence of the convening officer which the
other officers of the court (who were normally
under the latter's command) did not enjoy.
But the cases in which such positive dangers
to the cause of justice arose were, I am convinced,
extremely rare. The main function of the lawyer-
soldiers was, as I have described, that of giving
expert guidance to officers only too anxious to
deal out even-handed justice.
In many cases I am indeed inclined to think
that the most frequent instances of incompetence
revealed by the court-martial system which pre
vailed during the War were of the opposite char
acter, and that undue leniency prevailed as a
result of the lack of judicial experience. My
general impression is that a General Court-martial
held at home often proved itself a tribunal too
indulgent to an accused person ; and to speak
frankly, could easily be bamboozled by an ex
perienced advocate, or adroit prisoner, to take a
perverse view of plain facts, with the result that
justice was not done, and persons whose guilt
was proved escaped conviction. Very many of
the offences dealt with at home during the War
were in the nature of civil offences, frauds in
connection with accounts and stores, and the
passing of worthless cheques, in which the court's

COURTS-MARTIAL 19
own instinct and experience in matters of purely x.
military discipline were of little or no assistance.
In some of these cases defences, which would have
earned the stolid incredulity of a jury, under the
guidance of a judge of assize, or at quarter-
sessions, were received by a court-martial (mostly
composed indeed of " dug-outs " and territorial
officers beyond the age of service in the fleld)
with a polite and credulous acquiescence which
to the eye of experience was almost pathetic.
This feature of the system may justify humor
ous reflection upon the attitude of some very
senior officers when the introduction of lawyers
into the court-martial system was flrst mooted.
They could foresee nothing but technical obstacles
to the progress of cases and a crop of " legal
quibbles," instead of what they regarded as their
own plain common-sense straightforward way of
dealing with military offences. They appre
hended uneasily that crimes would go unpunished
and military discipline would suffer. A plain
common-sense view of offences by courts-martial
insufficiently guided by lawyers was, in the sort of
case which I have mentioned, the one thing that
was lacking. Lawyers after all are just as much
interested in the punishment of crime as soldiers,
and as a rule, in any complicated case, have
much more experience in the detection and proof
of it. As I have said, the introduction of lawyers
into the court-martial system did not in fact pro
duce results detrimental to discipline, and must
in many cases have greatly helped a court through
its difficulties, when entangled in technical traps
laid for it by some offender more wary than his

20 POINTS OF VIEW
X. fellows. The fact that special care was taken,
wherever possible, to secure that in aU theatres
of war the officers appointed to special court-
martial duties had themselves seen active service,
and performed regimental duties, ensured that
the legal element would not lack sympathy with
either the circumstances of the flghting troops or
the paramount consideration of discipline.
Sentimental critics, who regard a court-martial
as an instrument of tyranny, and to whom a
military offender is normally an oppressed victim,
fail to comprehend both the practical possibilities
of the situation, and the nature of the main object
which the court-martial system exists to secure.
Even a slight experience of military routine will
sufficiently establish the practical difficulties of
providing any but a domestic tribunal to deal
with the military offences of an army, whose
units are constantly on the move to all parts of
the world. The actual nature of the object to
be secured makes a domestic tribunal nearly in
evitable. Discipline, it is hardly necessary to
insist after seven years of warfare, is the basic
quality of an army capable of action in the fleld.
As the primary object of criminal law is the pro
tection of the civil community, so the prevention
of indiscipline, the greatest danger which threatens
the mihtary community, and one which must
involve it in complete destruction if admitted, is
the primary object of the court-martial system.
The civil community, as we have known it in the
past, from the greatness of its size and the fact
that it is a natural growth, is stronger than the
military community, which is an artiflcial struc-

COURTS-MARTIAL 21
ture created for a special purpose, and relatively x.
small in size. The strain to which the military
community is exposed is moreover inflnitely the
greater. The civil community can thus normally
afford to take greater risks with itself. Hence it
is that in this country we are accustomed to a
police system, which is often humorous in out
look and indulgent in practice, and to a judicial
system which in its turn allows scope to such
tendencies without injury to the community. So
many civil offences can be ignored or forgiven
and national discipline nevertheless sufficiently
be maintained. The fact that a pilferer from a
tradesman's shop in a small town is bound over,
or escapes conviction, need not have the effect
of encouraging petty larceny. Even when some
well-established legal criminal, grown wily with
experience, succeeds in deluding a jury and de
feating the police witnesses, the result may merely
be to turn a rascal adrift again for a while. The
incident (unless frequently recurring) is not too
likely to encourage other criminals in their evil
courses, or to turn to crime those who are still
respectable. The intrusion of a sporting instinct
in a civil trial is often inevitable and unobjection
able, and the specious appeal of an advocate to
the sentiment of the jury may in a given case
take advantage of this and similar instincts, so
that fellow-feeling, or even pity, may operate to
defeat strict justice. The civil community does
not usually suffer from such indulgences.
Military discipline, especially upon active service,
requires a harder and more callous protection.
To ignore a particular offence in a given case

22 POINTS OF VIEW
may ruin the morale or efficiency of a battalion.
Merely to reprimand, for instance, a soldier for
sleeping on his sentry post, when sentry duty is
a nightly experience for dozens of men in his
unit, and the temptation to sleep is ever present,
does not protect discipline. The duty of alert
ness in such a case is reduced to the level of one
of those minor civil obligations, such as the
getting of a gun licence, or the lighting of a
bicycle lamp at sun-down. When men are going
on leave from the front every day, the man who
takes an extra month in England cannot be
treated merely as an object of sympathy when
he recounts (as in so many cases I have read) the
illnesses of his relatives and the important private
business which as he thought justified or palliated
his crime. In all such cases example is contagious.
The life of a battalion is in this respect so much
closer and more intimate than that of a civil
community. Indeed, as has often been said,
where the risk of doing one's duty is so great,
it is inevitable that discipline should seek to
attach equal risks to the failure to do it.
It is, therefore, natural that in many cases
court-martial sentences should be severe. The
court alone has power to award sentences. Upon
confirmation and review they can be mitigated
but not increased. It is essential therefore that
the court should not give the seal of its approval
to a low standard of discipline by the lenity of
its judgment or of its sentence. When once the
strict judgment is pronounced, lenience may often
be shown from higher authority, after a full view
of the requirements of discipline in the unit con-

COURTS-MARTIAL 23
cerned. The responsibility of an officer in high x.
command in such cases is serious and often
difficult. The court and the local commander
who confirms the proceedings are the primary
judges of the needs of discipline. The reviewing
authority can, if he chooses, by indiscriminate
mitigation easily satisfy his humane instincts and
sentiments of pity, and achieve a glow of self-
satisfaction from the process. But his duty lies
not to himself and to his feelings, but to the
force which he commands. Lenience to an in
dividual may be cruelty to the force. I may be
permitted to cite once again the Duke of Welling
ton's explanation of a commander's duties :
" I consider all punishments to be for the sake
of example, and the punishment of military men
in particular is expedient only in cases where
the prevalence of any crime, or the evils resulting
from it, are likely to be injurious to the public
interests. ... It is very unpleasant to me to
be obliged to resist the inclination of the General
Court-martial to save the life of this soldier ;
but I would wish the Court to observe that if
the impunity with which this offence, clearly
proved, shall have been committed, should, as
is possible, occasion resistance to authority in
other instances, the supposed mercy will turn
out to be extreme cruelty, and will occasion the
loss of some valuable men to the service."
A minor illustration of these principles is
afforded by the existence during the War of
another department of the court-martial system
under the Defence of the Realm Acts. By these
Acts the whole nation was put under discipline.

24 POINTS OF VIEW
X. and in some cases it was considered desirable
by Parliament that the tribunals to enforce war
regulations should be military. I do not propose
to include the operations of this system in my
review. But it illustrates the principle that,
when the civil community is in danger, civil
discipline must be strict, and that exceptional
judicial measures must be taken to safeguard it.
That very peculiar legal system, which under
the ill-defined term " martial law " may embrace
territories, and all persons in them, and may
establish a jurisdiction for the whole of a civil
population, has already been distinguished from
the statutory " military law " of our own military
forces, and it deserves here some further brief
mention. Landing, as did our original Expedi
tionary Force, in friendly and allied territory,
and fighting there for four years, it was not
concerned with the legal control of the civil
population ; the authority and jurisdiction of the
French and Belgian Governments over their
subjects remained intact, and were exercised
through the civil police and the numerous French
and Belgian Liaison Officers attached to our
various headquarters, in close touch with whom
our own Provost-Marshal and his numerous sub
ordinates worked. But in enemy territories, and
those where the normal civil authority had in
fact lapsed on the outbreak of hostilities, a British
Commander-in-Chief became by virtue of the
laws of war at once sovereign for all purposes
connected with the maintenance and safety of
his troops, and the conduct of operations, and
with the adequate control and protection of the

COURTS-MARTIAL 25
civil population. Courts must be established, x.
and regulations made having the force of law,
by which this control can be made good. In
Palestine and Mesopotamia such a system became
necessary at the outset of the respective campaigns.
Upon the Western front the need arose only
towards the end of the War, when the Rhine
provinces and the bridgeheads beyond the Rhine
were occupied under the Armistice.
Some practical pages in the official Manual
of Military Law formed the officer's guide to his
powers and jurisdiction as representing the tem
porary military sovereign of the occupied area.
Writers on international law have discussed the
subject at length, and some aspects of it are
legally controversial. But no occasion for con
troversy arose in the practice of the Army of
Occupation during the period of the Armistice.
Proclamations were published under the
authority of Marshal Foch for the whole area,
and of Sir Douglas Haig for the area occupied
by British forces, warning the inhabitants against
molesting troops or having arms, and establishing
rules for the control of railways and other means
of communication, for the observance of curfew
hours and for the numerous other matters requir
ing regulation where there is military occupation
of a hostile country.
For the purpose of setting up and working the
necessary courts a call was made upon the avail
able lawyers in the army. The near approach of
demobilisation did not facilitate matters, but a
supply was secured, and a system of courts
established combining both civil and military

26 POINTS OF VIEW
X. principles. For the important centres of popula-
tion, officers with a legal training sat by them
selves as military magistrates to try the less
important cases. In the outlying districts selected
senior commanding officers dispensed justice in
similar cases rather on the lines of the procedure
adopted in their own orderly room for dealing
with their own military offenders.
More serious offences were reserved for trial
by " military courts " which imitated the pro
cedure of Field General Court-martial. A day
in the summary courts of Cologne or Bonn pro
duced a series of cases in their number and
character not very dissimilar from those with
which a busy stipendiary magistrate deals at
home, — breaches of curfew regulation, travelling
without passes, minor cases of insulting behaviour
to British troops or disobedience of military
orders, pilfering of military stores, and smuggling.
Pilfering of military stores appears at the
outset to have been a serious nuisance. The
occupied area, after years of our blockade and
the insistent demands of war, was nearly destitute
of certain commodities. The petrol and motor
car tyres, which the Army Transport brought
with it in profusion, required without always
receiving the most careful guarding, and " Being
in unlawful possession of British military stores "
was a frequent charge against German inhabitants.
One may perhaps surmise that the treatment of
such offenders was less drastic, and possibly less
effective, than the measures taken by the German
army to protect its stores during the occupation
of Belgium.

COURTS-MARTIAL 27
A special department of the army staff was
set up under an officer who was styled a Military
Governor to administer martial law in the occupied
area. Much purely civil administration had also
to be done in the difficult economic circumstances
of the country. I visited the area myself on a
fleeting occasion, and found everywhere con
firmation of the reports received from many
visitors, that the occupation was a most moderate
and gentlemanly affair, and that the Germans,
notwithstanding the blow to their pride, and
some discomfort in providing the requisite billet-
ting accommodation, had every reason to con
gratulate themselves on the results. The mere
security against the revolutionary disturbances
that took place on the other side of the Rhine
was, I think, secretly admitted to be worth having.
The whole of the ordinary civil administration
was allowed and indeed required to continue.
The local civil officials had remained at their
posts in accordance with the terms of the Armistice
and the orders to them were " carry on." With
disputes between Germans the Army of Occupa
tion did not concern itself, and German courts
continued to exercise jurisdiction under the
authority of the Army Commander. But for
the needs of the army and the limitations imposed
by the separation of the occupied area from the
rest of Germany the civil government was not
changed. The greatest interference was prob
ably in communications, the movement of troops
and military supplies necessitating rigid control
of railways. I have, I hope, said enough to make it plain

28 POINTS OF VIEW
X. that in my view the improvisation of an adequate
and, in the main, a merciful justiciary system,
was not the least remarkable improvisation of
the War. And perhaps I may be bold enough
to justify my intrusion into this strictly military
field by quoting from a letter which the Army
Council addressed to me on August 7, 1919 :
" I am commanded by the Army Council to
place on record their cordial thanks for the service
you have rendered to the legal work of the army,
especially in the revision of military courts-martial,
a duty which, in addition to your other heavy
work, you have undertaken for a period of four
and a half years on behalf of five successive
Secretaries of State for War. . . . While main
taining the main principles of military law and
standardising the decisions of the military tri
bunals, your influence was always exercised on
the side of humanity,"
It has seldom fallen to my lot to receive
thanks which I valued as I value these.

XI
LAW REFORM
The task of any Lord Chancellor in planning or xi.
carrying through schemes for legal reform is one
of exceptional difficulty. Not only is he a Minister
of the Crown and a member of the Cabinet, whom
he must convince of the necessity as well as of
the expediency of the raeasures which he proposes,
but he must — if his reforms are to obtain accept
ance in the profession of the law — act with the
concurrence of great judicial personages and with
the general assent of the instructed minds of the
professions. On the flrst point, legal reform has, I am glad
to say, passed out of the domain of party politics.
Proposals for the amelioration of the law receive
from the Bench, the Bar, the solicitors' profession,
and both branches of the Legislature, considera
tion upon their merits and without any regard
to political consequences. And they have this
further inestimable advantage, that each Lord
Chancellor can take up the work where his prede
cessors left it and receive from them — as I have
received — most cordial support and most sagaci
ous counsel. Since the days of Lord Selborne
and Lord Cairns, legal reforms have been dealt
29

30 POINTS OF VIEW
XI. with in continuous fashion ; and, though every
Lord Chancellor must regretfully acknowledge to
himself that the span of human life, and the still
shorter span of life of the Administration of
which he is a member, must deny him the satis
faction of bringing to fruition many of the pro
jects with which he enters office, he knows that
as he has tilled and watered the ground which
has been prepared and sown by his predecessors,
so those who come after him will continue the
work upon which he has been engaged.
On the other hand, the mere fact that political
interests and feelings are no longer involved in
projects of law reform deprives the reformer of
that momentum which is necessary to place
measures upon the Statute-book in these days of
crowded Parliamentary time. The matters dealt
with are of flrst importance, and touch very
nearly the life and work of all classes of the
population ; but they are in their nature technical
and difficult to understand and cannot command
the enthusiasm which was generated by the efforts
of the reformers of the earlier nineteenth century.
Fortunately, the work of those reformers has
now taken deflnite shape, and it is improbable
that, in any time which can be foreseen, it will
be desirable to touch the main framework of the
Judicature Acts of 1873 and 1875, however much
changing habits and greater experience may lead
us to desire any modification of details and a
completion of some of the parts of that great
edifice erected by Lord Selborne and Lord Cairns
which remained unfinished when the zeal for law
reform spent itself some time in the 'seventies.

LAW REFORM 31

Transfer of Land

There is in particular one great field of sub- xi.
stantive law (as distinguished from the law of ^
machinery and procedure to which the attention
of Lord Chancellors must mainly be directed)
calling, in my opinion, for an early and a com
prehensive settlement. In spite of the beneficent
series of statutes dealing with the law of con
veyancing and settled land, which introduced so
many advantages into the system of the transfer
of land, and abolished so many absurdities, the
fact remains that the system which they sought
to improve is in its nature cumbrous and anti
quated, and requires drastic treatment to bring
it into conformity with the business needs of the
community. Concurrently with the attempts to
improve the law relating to the transfer of land,
there have proceeded a series of statutes, cul
minating in the Land Transfer Act, 1897, which
have for their aim the introduction into this
country of a system, such as prevails in most
of the civilised countries of the world, of transfer
by registration. In my view, it is in the univer
sal application of this principle throughout the
country that there lies the true solution of the
difficulties and obscurities which puzzle and
annoy laymen and offend the more enlightened
professional gentlemen whose daily lives are
concerned with the transfer of land.
The experience gained since the Act of 1897
came into operation proves, in my opinion, that
the universal establishment of such a system is
both possible and expedient. Unfortunately, it

32 POINTS OF VIEW
XI. has also proved that the provision made in the
statute for the extension of the system throughout
the country through the conversion of its oppon
ents has failed in its effect. There can be no
doubt that the extension is desired by the majority
of landowners. If any further proof were wanted,
it is furnished by the overwhelming majority by
which the House of Lords affirmed the principle
of compulsory extension in a recent debate.
Voluntary extension having failed, and the need
for extension being shown, it is now vitally
necessary to obtain more effective powers for the
compulsory extension of the system.
Law of Property Bill
The Law of Property Act, which received the
Royal Assent in the summer of 1922, therefore, pro
poses to remove those obstacles to extension which
have hitherto stood in the way, and to enable the
Lord Chancellor of the day — after such enquiry as
is called for the purpose of enabling opponents to
ventilate their views and, if they can, make good
their case, and subject to the passing of a resolu
tion by one House of Parliament or the other —
to make compulsory orders requiring land to be
registered on sale in the locality to which the
order relates. The work of placing the whole of
the land in this country upon the register must
necessarily take many years, and the Act accord
ingly contemplates the intervention, before the
operation is fully completed, of a period which
may be short or long as events dictate, during
which the system of compulsory registration will

LAW REFORM 33
be extended county by county throughout the xi.
Kingdom. The Act itself further contains pro-
visions which will interpose a delay before this
process can begin. The Bill, as introduced, pro
vided that no order applying the compulsory pro
visions to any county should be made until two
years from the commencement of the Act, and not
more than one order should be made within the
period of three years. Periods of this length are
as nothing in the life of the nation, or even in the
life of a system of land transfer, and I did not
myself consider as essential to the principle of
the Bill the particular periods originally specified
in it. During subsequent stages, with a view to
accustoming the profession gradually to the
working of the system, and stilling the appre
hensions which are, I think unnecessarily, enter
tained by them, it was thought desirable further
to extend these periods. The principle still
remains, and, the Act once passed, we may look
forward to a time when land, though it can never
be transferable with the same certainty or rapidity
as a parcel of stock or a share, can still be con
veyed from man to man without the intolerable
prolixity and complication of even our improved
system of conveyancing.
Simultaneously, the Law of Property Act pro
poses to effect a greater simplification in the
practice of conveyancing than any measure
hitherto proposed, while at the same time it
retains the present power to settle land. The
body of law upon which it operates is in itself
extraordinarily complicated and technical, and
VOL. II D

34 POINTS OF VIEW
XI. the Bill itself is of necessity also comphcated
and technical, by reason of the mass of statute
and other law, with which it deals and either
repeals or renders obsolete. In preparing it and
carrying it through its successive stages, I have
done little more than take up the torch which was
carried by my learned friend and predecessor. Lord
Haldane, to whose great efforts in this thankless
task the gratitude of both branches of the legal
profession and all those among the lay public who
are interested in land must always be due. As
the result of his labours, which were interrupted
by the outbreak of the War, we were able to put
forward our proposals in a form which we believe ,
to be acceptable to the great mass of expert
opinion and with the support of the whole body
of the law societies of the country.
Features of the Bill
I can do no more than refer to some of the
more important features of the Bill. Its general
principle is to assimilate the law of real and
personal estate and to free the purchaser from
the obligation to inquire into the title of him
from whom he purchases, any more than he
would have to do if he were buying a share or
a parcel of stock. Incidentally, it has been
necessary to make elaborate provision for the
devolution of land upon intestacy, so that, g-s far
as possible, the sexes may be placed upon an
equality. Copyhold tenures — the evil of which is
universally recognised, but the enfranchisement
of which, under the existing law, proceeds but

LAW REFORM 35
slowly — are abolished uno flatu, and elaborate xi.
provision is, of course, required to work out
the compensation for the lord and the steward.
Beyond this, the Act contains a very great
number of technical amendments of the Settled
Land Acts, the Conveyancing Acts, and the
Trustee Acts, and some further minor pro
visions which, it is believed, will be helpful in
business. The Act is of vast length. As it came from
the Joint Select Committee of both Houses, over
which Lord Haldane presided, it covered 276
pages and contained 185 clauses and 16 schedules.
I am confident that the Act is called for urgently
by the circumstances of the time, and I made
every effort to pass it into law at the earliest
moment when Parliamentary exigencies allowed.
I had some hope of placing it upon the Statute-
book in the course of the Session of 1920. Un
fortunately other more pressing legislative needs
prevented me from doing so in that and the
succeeding year, but I had the pleasure of seeing
it reach the Statute-book in the course of this
year. The House of Lords
The constant attention of all Lord Chancellors
is directed to the law of machinery and pro
cedure under which our legal system is worked,
and projects with reference to these matters are
always before me, as they have been before my
predecessors. To begin with the highest Court
in these islands — the House of Lords sitting in

36 POINTS OF VIEW
XI. its judicial capacity — it does not appear to me
that since the alteration in the Standing Orders
initiated by Lord Buckmaster, which reduced
the period of time within which an unsuccessful
litigant could appeal to this House, any changes
are called for. The Court is constantly at work,
and the great volume of causes which come be
fore it, especially from Scotland and Ireland,
seem to indicate general satisfaction on the part
of litigants. " Imperial Court of Appeal "
From time to time the institution of a Court
of Imperial Appeal is mooted, and we know that
some colonial statesmen — though not all — are
anxious for the establishment of such a Court in
London. In my judgment, the time is not yet
ripe for the final discussion and settlement of
this question, but in any discussion or any
settlement I attach the greatest importance to
the preservation of the appellate jurisdiction of
the House of Lords as it now is, and I entertain
the greatest doubt whether the institution of
any other tribunal otherwise constituted would
give to litigants, and particularly to litigants
from Scotland and Ireland, the same prompt,
efficient, and satisfactory justice which they
receive at present. The Judicial Committee
There are, however, matters connected with
the Judicial Committee of the Privy Council —

LAW REFORM 37
the Imperial Court of Appeal from his Majesty's xi.
Dominions beyond the Seas — which call for
alteration. I think that all those associated
with that Court, whether as Judges or as advo
cates, would welcome its installation in buildings
which, in their material aspect, should correspond
more nearly to the vast imperial issues which are
there decided. Unhappily, for the time being,
more pressing calls upon the national purse pre
vent the accomplishment of this desire ; but I
must express the view that dignified surroundings
are something more than a mere ostentation and
a mere convenience, and that the justice of so
great an Empire should be enshrined in a certain
spaciousness. '
Meanwhile, there are certain immediate meas
ures which are in process of being taken or
require speedy action. The Lord President of
the Council, the Secretary of State for India,
and myself have represented to the Treasury that
means must be found for strengthening the Indian
representation upon the Judicial Committee. The
Indian work which comes to that Committee
vastly exceeds in volume all the work which
comes from all the other Dominions, The ques
tions of law which arise are strange to Western
ears, and the manners and customs of the people
upon whom that law operates are also strange.
It is, therefore, essential to the proper administra
tion of justice that there should always be upon
the tribunal men bringing experience of Indian
law and of Indian life and custom. The meagre
allowance available under the present statute is
insufficient to attract men of sufficient standing

38 POINTS OF VIEW
XI. and mental calibre. Until now the Court has
depended upon the gratuitous assistance of such
distinguished retired Indian Judges as Sir Law
rence Jenkins, and the all but gratuitous labours
of Sir John Edge and Mr, Ameer Ali, I am
glad to think that at an early date more adequate
remuneration will be found by the Treasury for
this purpose.
In other, but somewhat more technical, matters,
the procedure governing Indian appeals requires
attention. The India Office is, I believe, in con
sultation with the Viceroy upon this subject, and
I hope that the result may be a decrease of cost
to litigants and, perhaps, without the curtailment
of any proper opportunity for appeal, a reduction
of the almost intolerable length and prolixity of
some Indian lawsuits.

The Supreme Court
When we come to our own Supreme Court of
Judicature, our main anxieties arise from the
enormous increase of business in the King's Bench
Division and in the Probate, Divorce, and Ad
miralty Division. The work in the King's Bench
Division, which fell off very seriously during the
War, showed signs of increase almost immediately
after the Armistice. That increase has continued
and grown throughout the calendar year 1920,
and it may be stated — though exact figures are
not available — that there is now a greater press
of business than has ever been known in the
history of the Courts. As showing the stabihty
of our judicial institutions and the confidence

LAW REFORM 39
felt in them by the mass of the population, and xi.
especially by the business community, this state of
affairs is highly satisfactory. There are countries
and have been periods where and when a litigious
tendency among the population generally is a bad
element in the national character. It appears,
however, that the great volume of business now
coming to the Courts is legitimate business, arising
from the needs of a greatly increased population,
stimulated in part by the disturbance of com
mercial conditions which was a direct result of
the War.
The result, however, is to put a very severe
strain upon our judicial machinery. It has
already been necessary to have recourse to the
provisions of the Supreme Court of Judicature
Act, 1910, under which both Houses of Parliament
have passed resolutions calling for the appoint
ment of two extra Judges, and two appointments
have been made accordingly. It is, however, very
doubtful whether even this measure of additional
judicial strength is sufficient to cope with the
emergency with which we are faced. That emer
gency is increased by the fact that it was neces
sary to set free Lord Trevethin and Lord Hewart
in succession from their regular judicial work in
order that they may preside in the War Compen
sation Court, a measure not open to the criticism
usually appropriate to the detachment of Judges
for extra-judicial work, inasmuch as the work
which is to be done by the War Compensation
Court, if it did not exist, would fall to the lot of the
ordinary Courts of Justice. In fact, through the
public spirit of those gentlemen who are serving.

40 POINTS OF VIEW
XI. some for a fee which is little more than honorary
and some wholly gratuitously, we have in this
Court a Tribunal which is in some sense auxiliary
to the ordinary Courts and commands, in the
persons of Sir William Taylor, Sir Dunbar Plunket
Barton, and Mr. Hamilton, the services of men
of high judicial qualities and great legal experience,
as well as the unique tact and knowledge of Sir
Matthew Wallace.

The Increase in Divorce
It is not only in the King's Bench Division
that the volume of work has increased beyond
any reasonable anticipation. If that increase is
considered in relation to the judicial strength
available, the heaviest additional burden has
fallen elsewhere. The work of the Divorce Court,
so far from falling off during the War, continually
increased, and has now assumed gigantic propor
tions. As a consequence it has been necessary
to lend to that Court the services of Judges of
the King's Bench Division, and while this ex
pedient is within the contemplation of the Judi
cature Acts and is an apt illustration of the
elasticity of the system established by these Acts,
it has entailed a heavy tax upon the time of the
King's Bench Judges, and so long as it continues
necessary must render it impossible to maintain
these Judges at a less number than that lately
authorised, and must cause the gravest fears that
a further increase may be necessary.
The heavy weight thus thrown upon the Pro
bate Division has caused me frequently to con-

LAW REFORM 41
sider means whereby more permanent relief could xi.
be obtained. At the same time, my attention has
been directed to the inconvenience and expense
which are entailed upon litigants by the necessity
of prosecuting all divorce proceedings in London.
The increase of divorce petitions is especially
noticeable among the poorer classes, partly as a
result of the War — direct or indirect — and partly
by reason of the facilities for cheap litigation
which the Poor Persons Rules offer to persons
of slender means. The hardship to such persons
of being obliged to resort to London, in order to
obtain that relief from an intolerable wrong to
which they are entitled under the law, is obvious.
Various remedies for this evil have been suggested.
It has been proposed that the work of the Divorce
Court, so far as it is concerned with persons of
hmited means, should be devolved upon the
County Court, or that the Divorce Court Judges
should go circuit for the purpose of trying divorce
petitions, or that these petitions should be tried
during the course of the ordinary circuit by the
King's Bench Judges.
The first proposal seems to me to be open to
three criticisms — first, it would be an evil to
institute a system under which it would result
in appearance that the poor litigant should be
forced to take his matrimonial grievances to an
inferior tribunal. In other matters the distinction
between the jurisdiction of the High Court and
the County Court depends upon the value of the
amount at stake and not upon the social status
or the pecuniary position of the litigant. The
importance of a matrimonial cause cannot be

42 POINTS OF VIEW
XI. measured by these standards, and if the rich are
allowed or compelled to resort to the High Court
in London, the same priyilege cannot be denied
to the poor.
Secondly, the exercise of the jurisdiction in
matrimonial causes in many cases involves a
discretion on the part of the Judge. It is highly
important that that discretion should be exercised
on uniform lines. This can be accomplished only
where the jurisdiction is exercised by Judges who
are in frequent contact one with another, and
uniformity is, of course, more likely to be found
the more limited the number of Judges in whom
the discretion is vested. To vest the discretion
in more than 50 County Court Judges scattered
throughout the country, or in an indefinite number
of Commissioners, as proposed in Lord Buck-
master's Divorce Bill when it was first introduced,
would necessarily result in a great variation of
practice, which, in my view, would be harmful
to the best interests of the community.
Thirdly, the conferment of this jurisdiction
upon the County Court would, in my view, exer
cise the most detrimental influence upon the
Court itself. The County Court exists primarily
for the decision of small disputes and the collection
of petty debts. It is of vital interest that its
justice should be not only well informed and
impartial, but also expeditious, and the addition
to its labours of so vast a mass of litigation would
impede its operations to such an extent as to
inflict the gravest hardship upon the community
at large.

LAW REFORM 43
Divorce Trials on Circuit
The proposal that the Judges of the Probate xi.
Court should go circuit seems to me to be equally
impracticable. It would involve very consider
able expense ; and the withdrawal for the purpose
of sitting in the country of one Judge from the
limited number available for the trial of Divorce,
Probate, and Admiralty work would result in an
even greater congestion in the work of the Court
than exists at present.
We were, therefore, forced to the third
remedy, and I introduced a Bill into the House
of Lords under which it will be possible to send
divorce cases, or certain specifled classes of
divorce cases, for trial on Circuit by the King's
Bench Judge. Such a course could not have
been taken save with the consent of the existing
Judges of the King's Bench Division, who were
good enough to express their willingness to do
the work. The Act has passed into law and
it is proposed that in the flrst instance the only
cases to be sent to be tried on Circuit should
be undefended cases and cases arising under the
Poor Persons Rules. It is, of course, necessary
to avoid the detention of the King's Bench Judge
on Circuit for any great length of time, and if he
were to find himself involved in one of those
disputed cases which sometimes occupy the time
of the Court for a period which many regard as
disproportionate, the remedy would be worse
than the disease. Undefended divorce cases,
although it is necessary that upon them the case
for the petitioner should be strictly proved, do

44 POINTS OF VIEW
XI. not in practice occupy much time, and the relief
to the petitioner of being able to bring his witnesses
to a town some reasonable distance from his
residence, instead of to London, will be consider
able. It is found also that poor persons' cases
do not, as a general rule, occupy the time of the
Court to the same extent as other cases of a
similar nature, and it is especially upon persons
admitted under the Poor Persons Rules that the
hardship of bringing witnesses to London and
keeping them there for an indefinite time lies
heaviest. Position of the President
At the same time, the Act to which I have
already alluded made a change in the status
of the President of the Probate, Divorce, and
Admiralty Division. The President, unlike the
Judges who preside over the Court of Appeal and
over the King's Bench and Chancery Divisions,
was not marked out from his brethren by any
addition of salary or precedence. This did not
seem to me to be appropriate to a Judge in the
position of the President, having the care of vast
interests and exercising a considerable patronage.
To say nothing of the eminent men who in times
past have occupied that position, the office has
lately been adorned by Sir Samuel Evans, who
rendered such inestimable services during the War,
in the Prize Court, and by Lord Sterndale, the
present Master of the Rolls. Sir Henry Duke
surrendered his position as a Lord Justice of
Appeal, in exchange for no personal advantage,

LAW REFORM 45
to accept the far more laborious office which he xi.
now holds. The time is, therefore, appropriate
to mark the importance of the office by giving
the President precedence next after the Master
of the Rolls and before the Lords Justices.
I have already said that the measures which
we have taken for dealing with the pressure of
work in the Divorce Court and the appointment
of additional Judges to the King's Bench Division
are barely sufficient to enable that Division to
cope with the work which it has to do. We have
by an Act passed in 1919 found some relief for
the King's Bench Division by a further devolu
tion upon the County Court. It remains to be
considered what additional means are available
for obtaining either increased help or a more
expeditious manner of dealing with the work.
The Circuit System
It has been suggested, in the first place, that
certain work performed at present by the King's
Bench Division might be transferred to the
Chancery Division, where the increase since the
end of the War has not been so pronounced as
upon the Common Law side. The matters alluded
to are the bankruptcy work and the revenue work.
The bankruptcy work has been transferred,
but the difficulties in the way of making any
transfer of the Revenue work are formidable,
and I am not at present convinced that they
can be overcome. If, indeed, any effective method
can be found of employing more profitably the
time of the Judges available to deal with King's

46 POINTS OF VIEW
XL Bench actions, it must be in some revision of
our Circuit arrangements.
Proposals have from time to time been made
for a drastic alteration of our system of judica
ture, whereby the ordinary work of nisi prius
would be decentralised and dealt with by district
Judges, and the Courts in London would become
little more than Courts of Appeal. On the other
hand, it has been suggested that a greater measure
of centralisation rather than decentralisation is
called for, and that, while further jurisdiction
might be conferred upon the County Court, the
trial of civil actions should proceed in London,
the Judges proceeding for the purpose of trying
crime to some very few provincial centres.
To all proposals under either of these two
heads I am definitely opposed. It may, I hope,
be found possible gradually to extend further
the jurisdiction of the County Court, especially
for the purpose of dealing with cases which, if
they proceeded in the High Court, would receive
summary treatment under Order XIV. ofthe Rules
of the Supreme Court. This process must be a
gradual one, and the possibility of pressing it on
must depend to some extent upon the strengthen
ing of the machinery of the County Court by
methods of which I will say something at a later
stage ; but the Circuit system not only corre
sponds — as its history shows — to the character
istics of the community and the constitution with
which it has grown up, but in modern days fulfils
functions which are no less but rather more
necessary than in the past.
The advent of the High Court Judge in a pro-

LAW REFORM 47
vincial town, and especially in a provincial town xi.
possessing a large local Bar, impresses upon all
those concerned in the administration of the law
the sense of unity of our judicial system ; it raises
the tone of both branches of the profession, and
it is universally recognised that it has a deterrent
effect upon crime. Useful and indeed necessary as
decentralisation may be in matters of machinery,
it is of vital importance that the law should be
administered uniformly as well as rightly and
impartially, and for these purposes I do not think
a better system could be devised than that of
the Circuit.

Reform of Circuit System
If, however, this system is to continue, it must,
I think, be adapted more closely to modern needs.
Already, under the Assizes and Quarter Sessions
Act and under the Winter Assizes Act, on the
one hand the criminal assize has been lightened
of the less important cases, and on the other
hand certain Circuit towns have been grouped
for certain assizes. In my personal view, it is
most desirable to promote further this latter
tendency, and I think that the time has now
come, having regard to the change in the relative
density of population in the country, when some
at least — ^if not all — of the places dealt with by
Orders in Council made under the Winter Assizes
Act should disappear altogether from the list
of the Assize towns. In addition, it is worth
consideration whether other towns might not
also be dealt with in similar fashion.

48 POINTS OF VIEW
XI. Such a change would result in a saving of
judicial time proportionate to the number of
places eliminated and in a very considerable
saving in expense. In some of the places which
would be dealt with there is no longer a gaol,
and prisoners in the county are confined in the
gaol of a neighbouring county, so that when the
Judge visits the gaoUess Assize town the prisoners,
at considerable expense and trouble, have to be
fetched from the one town to the other for trial
and taken back again. Some of these gaols were
abolished some little time ago, and in the course
of the War several further gaols in similar places
have been dismantled or converted into military
prisons. Some consequential arrangements will have
to be made beyond those contemplated by the
Winter Assizes Act. Under present arrangements,
prisoners from the county in which the Assize is
not held are tried before a jury of the county in
which the Assize is held, and if the former place
has ceased to be an Assize town, it would only
be just that the inhabitants of the county which
provided the criminal should bear in due pro
portion with the county where the prisoner was
tried the burden of finding jurymen for the
purpose. The difficulty in taking any such course as
this arises not from either branch of the pro
fession nor from among the Judges, but from
local opposition and the pressure which the
locality is able to bring to bear upon its member
of Parliament. It rests with me to persuade,
if I can, my colleagues of the Cabinet that this

LAW REFORM 49
opposition and this particularism must give way xi.
for the general good. I must say most emphatic
ally that so long as the King's Bench Judges
are compelled to travel throughout the country
to places at which there is no business, or very
little business, the resulting dislocation upon the
work of the Division is most serious, and that no
arrangements for dealing more effectively with
the King's Bench work can be made until the
number of Assize towns has been considerably
reduced, and those eliminated whose position
as Assize towns depends merely upon historical
associations and not upon their importance as
business centres or centres of population.
Poor Persons
I have already had occasion to mention, in
connection with the work of the Probate Divi
sion, the Poor Person litigant. The problem
here arising is pressing and important. Very
shortly before the War the old system of litiga
tion in forma pauperis was in effect superseded
by the new system set up under the Poor Persons
Rules. This new system was in its nature
experimental, and it is unfortunate that it
should have been — as it has turned out — sub
jected to the test of experiment at the moment
when the War, uprooting old social conditions
and instincts, produced a flood of work in the
Probate Division. The result has been to subject
the system to the greatest stress at a time
when, being in its infancy, it was least suited to
bear it.
VOL. II E

50 POINTS OF VIEW
XL It was only natural that certain defects
should reveal themselves. They and the remedies
for them can be found fully discussed in the
report of the committee presided over by Mr.
Justice P. O. Lawrence. Put very briefly, they
amount to this, that unless and until some fund
is found, either from the State or from private
benevolence, the facilities offered by the Rules
to Poor Persons cannot effectively be employed
except in those cases where the parties are able
at least to meet the out-of-pocket expenses
which are involved in the procuring of evidence
and the maintenance of witnesses at the place
of trial ; and further, that while much zealous
and gratuitous work has been done by members
of the Bar, there has sprung up an unfortunate
custom whereby solicitors in some cases — I fear
in too many cases — have been enabled, under
the name of out-of-pocket expenses, to turn
charity into a lucrative business. As a result
of Mr. Justice P. O. Lawrence's report, the
Rule Committee of the Supreme Court have
framed new rules which came into operation on
January 1, 1921. The main features of these
rules are two :
(1) They require payment from each poor
person of a sum, small in itself, but sufficient,
on the average, to ensure that there will be
enough money available for out-of-pocket ex
penses, and therefore that his action will not
fail when it has proceeded through its pre
liminary stages through the lack of means to
bring witnesses to Court ; and (2) they are
designed to prevent absolutely the making of

LAW REFORM 51
any profit, under whatever colour, by any pro- xi.
fessional person engaged in the conduct of a
poor person's case.
If these rules are to succeed, it will only be
with the hearty and cordial support of both .
branches of the legal profession. So far as the
Bar is concerned, there will probably never be
wanting a supply of young men who, in return
for their gratuitous services, at least obtain
experience and learn to feel their legs in Court.
The burden laid upon the solicitors is far more
heavy. It is upon the co-operation of them,
and particularly of the larger and more famous
firms, that I rely for the success of the new
scheme. I should indeed be ungrateful if I did
not acknowledge here the goodwill with which
the Law Society have welcomed the proposals,
and the promise, which I think I discern, of a
general co-operation from the profession at large.
Judges' Salaries
There remain three matters in relation to
the Supreme Court which, though they are
primarily domestic concerns, are ultimately of
great interest to the nation at large. It will be
necessary at no distant date to reconsider the
salaries at present paid to the Judges in the
Court of Appeal and the High Court. It is
essential for the proper conduct of judicial
business that the Judge, when appointed, should
be above any financial cares, and should hold
such a position as enables him to carry authority
among those of the Bar from whom he has been

52 POINTS OF VIEW
XI. chosen and who practise before him, as well as
among the general body of litigants. It is also
necessary that the office should be so remunerated
as to secure the services of barristers who are in
the first rank of their profession. It is impossible
to say that in present circumstances the first of
these requirements, namely, that the Judge should
be above financial cares, is obtained. The nominal
salary of a Judge is, save in some exceptional
cases, £5,000 a year. From this is to be deducted
a 6s. income tax and a further sum as supertax,
which varies in different cases according to the
private means of the gentlemen in question, but
is in any event substantial. The heavy fall in
the value of money probably reduces the fraction
of the income left over after these deductions
by one half. A Judge has no means of increasing
his income, and but scant means of reducing his
expenditure. On the other hand, the average
income of members of the Bar, especially of those
members from among whom the choice of Judges
can be made, has increased very greatly. I
anticipate that, if no such measure as I have
suggested is taken, the Lord Chancellor of the
day will have a great difficulty in filling vacancies
upon the Bench. Indeed there are not wanting
signs that we may even be faced by the possi
bility that those already on the Bench, still in
possession of their full health and vigour, may be
indisposed longer to serve for an income which
bears no relation to that which they might earn
if they were free, and may consider the question
of returning to practise at the Bar, If either of
these two things happened, there would be grave

LAW REFORM 53
reflection upon the prestige of the Bench, and a xi
serious blow would be struck at the whole of
our system of judicature.
So far as I am aware, all other servants of
the Crown, except Cabinet Ministers and Judges,
have received additions of salary or bonuses to
compensate them in some degree for the altered
circumstances in which we live, A Committee
is sitting, or is about to sit, upon the question of
Cabinet Ministers' salaries, I think that as a
mere measure of justice, as well as of expediency,
treatment similar to that which has been meted
out to other classes must be extended to his
Majesty's Judges, Economies at the Courts
On the other hand, there are considerable
economies to be effected in the offices of the
Courts, and it is probable that there is consider
able additional revenue to be obtained without
imposing hardship upon any one. As to econo
mies, the Royal Commission on the Civil Service,
reporting in 1915, made numerous proposals for
the reduction of the establishment of the Courts,
and for the imposition of such rules as would lead
to the retirement of the officials when they had
passed the age at which full vigour may normally
be looked for — proposals in themselves which
are directed to, and in other cases have resulted
in, economy. The Commission recommended that
their proposals should be worked out in detail
by a small Committee of experts. The disloca
tion caused by the War, which was reflected in

54 POINTS OF VIEW
XI. the offices of the Courts, as elsewhere, delayed
the efforts of my predecessors to act upon this
recommendation. A Committee has, however, now been sitting
for some years under the presidency of Mr.
Tomlin, K.C, and the work, which is laborious
and thankless, is drawing to its conclusion. In
accordance with the recommendations of that
Committee, very large reductions have already
been made in many of the offices, and very large
economies have been, or are in the course of
being, effected. The work could not be carried
through were it not for the self-sacrificing help
of many of the officers affected, and, I fear, in
some cases, affected unfavourably, by the pro
posed changes. I believe that in the result the
greatly increased volume of work which is to be
dealt with will be done by a largely decreased
staff, and I trust that in the course of the changes,
it has been, or will be, found possible to satisfy,
so far as the needs of the public service allow, the
reasonable claims of those who suffer by them.
It was necessary in connection with these
changes to confer certain additional powers upon
the Lord Chancellor and upon the Treasury by
legislation, and in particular to place upon a
modern footing the arrangements for the Chancery
Registrars' Office, which are at present regulated
by an Act of 1842, in itself somewhat cumbrous
and long out of date.
In the Session of 1921 legislation was intro
duced dealing with the retirement of the superior
officers of the Courts, such as the Masters and
Registrars, upon their attainment of a suit-

LAW REFORM 55
able age, and instituting for them a system of xL
pensions, which will not in itself impose any "
additional charge upon the Exchequer, but will
be more suited for the circumstances of men who
necessarily enter the public service at an age
later than that of most Government servants,
and whose special work is such as to justify their
continuance in office up to a slightly greater age.
Court Fees
On the revenue side the question of the fees
to be taken in the Courts has not received atten
tion for many years, and it is imperative that
the scale should be adjusted to modern condi
tions, and in particular to recent changes in the
value of money. Now that a complete system
of devolution to the County Court has been
established, it may be anticipated that the
amounts at stake and the actions tried in the
High Court will be on the average higher and more
important than they used to be, and they will
therefore be capable of supporting, without hard
ship to the litigant, the imposition of a fee which,
without the addition of any material percentage
to the cost of litigation, will produce a substantial
sum in the aggregate. The fee upon a writ or
other originating process was doubled in the
course of 1920, without, so far as one can see,
affecting in the smallest degree the number of
writs or other originating process issued. Indeed,
as I have already said, that number has increased
almost incredibly in the last few months. The
remaining fees are of some complexity, and it is

56 POINTS OF VIEW
XI. impossible to deal with them in a summary
manner. The question of what should be done
with regard to them was remitted to a committee
which sat at the Courts under the chairmanship
of Sir Malcolm Macnaghten. I received from
them a comprehensive report, in the light of
which, with the concurrence of the Treasury, I
was able to reduce anomalies and at the same
time obtain an increased revenue.
There are two other matters of general interest
which affect the administration of justice gener
ally throughout the country. The principal pro
visions of the Bill which I introduced in the
House of Lords in the autumn of 1920, and
which passed in that year, are designed to
carry out some of the recommendations of a
committee which was appointed by and reported
to Lord Finlay, on the subject of foreign and
British judgments at home and abroad respect
ively. That committee was a very strong one,
presided over by Lord Sumner, and comprising
among its members Lord Justice Atkin and
other persons well qualified to give an opinion
on the needs of the business community, as well
as on the very difficult and technical matters
which came before them. Their recommendations
fall into three parts : Those requiring legislation
(which are dealt with in the present Act) ; those
requiring only the making of rules of Court
(which were dealt with in the course of the
summer by the Supreme Court Rule Committee) ;
and those requiring the making of conventions
or treaties with foreign States, upon which the
Foreign Office are at present engaged.

LAW REFORM 57
Proceedings Against the Crown
The other matter concerns proceedings by xi.
or against the Crown. The law relating to this
matter is cumbrous and antiquated, and imposes
at the same time impediments upon the Crown
and hardships upon the subject. The Crown
cannot sue or be sued in a County Court, The
procedure upon information is medieval, and so
technical that its mysteries are known only to a
very select body of officials and practitioners.
The Crown cannot be sued in tort. Further, the
multiplicity of new Government offices has ren
dered unsuitable a procedure which was invented
when the functions and the servants of the
Executive were very different from what they
are now. The subject is full of difficulty and
requires mature consideration, but I hope that
at an early date I shall be enabled, with the
concurrence of the Attorney-General, after con
sidering the observations of the legal advisers of
the different departments, and especially those
of the Inland Revenue and the other Revenue
Departments, to introduce a Bill which will be
of solid advantage both to the Crown itself and
to all those with whom the Crown is brought into
contact in litigation.
There is one further matter to which I should
allude before I leave the subject of the Supreme
Court — ^that is, the consolidation of the Acts
relating to the Supreme Court of Judicature.
The statutory provisions regulating the Supreme
Court are now scattered over some 47 volumes
of the Statute-book, and I concur in the desire,

58 POINTS OF VIEW
XI. which has been widely expressed, that they should
be brought together. The work must take time,
for it requires highly expert treatment, and the
documents to be incorporated are voluminous,
I believe that this is a matter to which the Law
Society attach great importance, and I share their
views on the point. Perhaps, also, it is relevant
to call attention to the fact that in the course
of my tenure of office the custom of holding once
a year a Council of Judges, prescribed by the
Judicature Acts, has been revived. The first
Council, held after a lapse of years, met in the
House of Lords in 1919. Henceforth I shall
follow what appears to be the natural course of
obeying the directions of the statute, and I hope
and believe that, from consultation with the
eminent men who constitute the Judicature, we
shall be enabled to glean much light upon the
problems that confront us, and the means whereby
they may be solved.
Changes in the County Courts
I turn to the County Court. I was fortunate
enough in the course of the Session of 1919 to
conduct through the House two measures relating
to County Courts. One of them — the County
Court Judges (Retirement, Pensions, and Depu
ties) Act — effected a reform which had for long
been desired. It imposes a retiring age upon
County Court Judges appointed in the future,
and, on the other hand, systematises the pension
arrangements for retiring Judges. The extent
to which this measure was welcomed on the

LAW REFORM 59
County Court Bench itself may be measured by xi.
the fact that a very large proportion of Judges
already in office exercised voluntarily the option
to adopt its provisions. I have no doubt that
the result will be to maintain the present high
level of efficiency upon the County Court Bench,
and to confer thereby an advantage upon liti
gants, while I have the satisfaction in saying
that, so far as our estimates enable us to judge,
it will not impose any additional charge, on the
average, upon the Exchequer.
The other Act — the County Courts Act, 1919
— comprises a number of miscellaneous pro
visions, the need for which has for some time
been apparent. The main trend of these pro
visions is in the direction of increasing the
jurisdiction of the Court. For that purpose, it
increases the power of the High Court to remit
to the County Court actions which could more
suitably be tried there, and penalises those
litigants who take up the time of the High Court
with matters which can be as expeditiously and
as properly disposed of in the County Court.
The effect of the Act is already apparent in the
large increase in remitted actions, especially in
the great centres of population.
One provision of the Act was aimed at the
establishment of a long-desired system of sum
mary judgment in the County Court, similar to
that which prevails in the High Court under
Order XIV. of the Supreme Court Rules. This
provision and the rules which have been made
under it by the County Court Rule Committee,
and approved by the Supreme Court Rule Com-

60 POINTS OF VIEW
XI. mittee, are at present only tentative. Before
such a summary process can be made of universal
application in the County Court it will, in the
opinion of myself and of those most conversant
yfith the business of the Courts, be necessary in
some ways to strengthen the machinery of the
County Court itself.
County Court Machinery
The next task, therefore, of the legal reformer
in dealing with the County Court will be twofold
— the establishment of the necessary machinery
and, when that has been established, the devolu
tion upon the Court of the power to deal effec
tively with such matters through the machinery
thus established.
So far as the machinery and administration
are concerned the County Court has recently
entered upon a period which must, I fear, be
described as one of acute crisis. For many years
the financial system of the Courts has depended
upon the feps taken in them. In their origin the
Courts were intended to be Courts for the collec
tion of petty debts, and though from time to time
endeavours have been made — which have been
in part successful — to devolve upon the Courts
matters involving more substantial issues and
greater sums of money, their main staple work
remained, up to the War, what it had been at
their inception. The revenue upon which the
Courts depended for the payment of their officials
was drawn from the fees taken upon the business
done in the Courts — the main source of that

LAW REFORM 61
revenue being the fees taken upon the smaller xi.
matters. As in our judicial system generally,
those cases which occupy most of the time of
the Court, and in particular most of the time of
the Judge, were the very matters, taken in the
aggregate, which produced least revenue.
In the early days this may have been a very
appropriate method of business. The result was
that the Registrar was paid by results, and as
the clerks were his servants, their remuneration
depended to some extent upon his success, I am
not clear, however, that this arrangement made
for economy in any real sense. It is true that it
obtained for the service of the Courts practising
solicitors who depended for the greater part of
their income upon their private business and
brought to the national service high qualities
of independence, learning, and impartiality. In
some cases, however, the result was that the
Registrar was over - remunerated for the work
which he did, and in others that he was under-
remunerated, while the clerks of recent years
have manifested, not unnaturally, a growing dis
like to remaining the private servants of the
Registrar when they were solely employed on the
work of the State,
The War caused a great falling-off in litigation
in every Court from the highest to the lowest
(except, of course, the Divorce Court), but this
falling-off was greater in extent and more serious
in its consequences in the County Court than
elsewhere. Not only did the ordinary litigant
desist from endeavouring to enforce his remedy,
so far as the Courts Emergency Powers Acts still

62 POINTS OF VIEW
XI. left him in a position to do so, but, further, the
great economic and social changes in the position
of the working classes produced an almost com
plete cessation in the debt- collecting work of the
Courts ; the fact being that the working classes
generally, possessing to an unusual extent ready
money, paid their debts. As a result of this, the
income of the Courts almost entirely disappeared.
The remuneration of those Registrars — the great
majority of the whole body — who depended upon
fees, was reduced, in some cases, by as much as
75 per cent, while at the same time the rise in
the cost of living compelled them to make an
effort to increase the salaries of their staffs. The
result was that a system which was already a
bad one, fell into a condition which can only be
described accurately as chaos.
Very great distress resulted, which the Treasury
have endeavoured to mitigate by the payment
of war bonuses to the staffs and of a sum, under
the name of bonus, but in fact calculated as a
proportion of the loss sustained, to the Registrars.
The Courts, therefore, instead of being in a position
in which their revenue roughly balanced their
expenditure, have now become a source of very
grave loss to the community.
Debt-collecting Work.
I see no immediate possibility of a return in
natural course to the previous state of affairs.
It is possible, and indeed probable, that the debt-
collecting work may increase — ^indeed, there are
already signs of such an increase. But, in the

LAW REFORM 63
opinion of the observers best qualified to judge, xi.
years must elapse before the revenue balances the
expenditure. Meanwhile a considerable change
has taken place in the nature of the business
of the Courts, and there is evidence of a great
increase in the number of the larger actions,
which, as I have already said, are those imposing
in the long run the greatest expenditure of time
and money.
This disastrous state of affairs has this ad
vantage, that it enables us to consider the whole
structure of County Court machinery and finance
with the certainty that no new system proposed
can be more haphazard and essentially extra
vagant than that now in existence. The whole
question has been recently under the considera
tion of a committee, appointed by myself, under
the chairmanship of Mr. Justice Swift. The
proposals which the committee make are of a
far-reaching nature, and will require most careful
consideration by myself and the Treasury. I
hope that there may be evolved a system which
will result in the gradual elimination of the part-
time Registrar and in the strengthening of the
framework of the Courts generally by the gradual
extension of a system of whole-time Registrars,
and by producing some measure of content
ment among the staff, who are, I fear, at present
discontented. If this can be done, the first step will have
been taken to the institution of a summary Order
XIV. procedure throughout the County Courts
in the country generally. Such a system can
be operated by whole -time Registrars without

64 POINTS OF VIEW
XI. incurring the mischiefs which would be incidental
to it if it were in the hands of gentlemen carrying
on private practices of their own. At the same
time, it is urgently necessary, in the interests of
economy and efficiency, that further measures of
grouping should take place among the Courts ;
that Courts established in those centres of popu
lation which have shrunk in importance should
be diminished in number or grouped with other
more important Courts ; and that, while the total
facilities for the collection of small debts and the
hearing of small actions should not be diminished
on the whole, arrangements should be made for
accomplishing these desirable objects without the
present waste of time and money.

XII
LADY GWENDOLEN CECIL'S
LIFE OF LORD SALISBURY
The Life of Lord Salisbury, by Lady Gwendolen xii.
Cecil, is a weighty and dignified memorial of a
very weighty and dignified statesman. It lacks,
indeed, in some respects the light and shade of
Mr. Churchill's brilliant biography ; but it is an
extremely competent and even skilful piece of
work such as a daughter may offer in tribute to
a father's memory, with the feeling that a pious
duty has been well and faithfully rendered.
The character of Lord Salisbury has always
appeared to me to be one of profound interest.
When I was first engaged in politics in the 'nineties
he was on the road to attain canonisation as the
leader of a cautious Conservatism. His record
as the master of " flouts and gibes and jeers," or
as the possessor of a " rash and rancorous tongue,"
was beginning to fade into mist, although there
was still some talk of " blazing indiscretions."
How was it possible to combine the idea of the
Lord Robert Cecil of 1867 with the picture of
the elderly statesman sitting at Hatfleld in an
almost sanctifled serenity from 1895 to 1902 ?
The answer to this question is not contained
VOL, II 65 F

66 POINTS OF VIEW
XII. absolutely in the first two volumes of his official
biography. The narrative stops short at 1880.
Though it shows the process of change beginning,
it does not tell the story of its completion. What
it does depict is something even more interesting
— the nature of quite a third Lord Salisbury who
existed from his birth in 1830 to his marriage in
1857. That a politician should tone down the
exuberances of his earlier methods as the years
go on is understandable — though the change in
Lord Salisbury's case is markedly abrupt. But
that a boy who was always retiring, awkward,
and even timorous, in manner — ^though not in
conviction — who entered Parliament and yet
made no special mark there, except for earnest
ness, should suddenly produce a flashing power of
epigrammatic irony and a tongue the effrontery
of which could put even Gladstone to ridicule,
is one of the most remarkable cases in political
development of our times. The late Lord Salis
bury's mother died when he was ten years old.
His father, though kind, did not understand him.
He had the type of mental and physical delicacy,
though not the beauty, of a youthful Shelley.
His private school he describes as "a kind of
Hell." He worked hard and brilliantly at Eton,
but was so badly bullied that his mind and body
failed, and his father had to take him away.
Then he went to Christ Church.
One could wish that the author had given a
fuller picture of his Oxford days. Here at last,
as in so many similar cases, his intellectual
promise was recognised by his contemporaries.
He became Junior Treasurer of the Union, where

LIFE OF LORD SALISBURY 67
his bust now stands in the Debating Hall. His xii.
health failed, and Sir Henry Acland sent him —
round the world. He returned and entered
Parliament for a close borough — without a con
test. Through all this period he shows not the
slightest sign of practical ability or of the kind
of man he is going to be within a brief space of
years. His letters from the Colonies are dull,
not to say priggish. Disraeli, writing to the
second Marquess, to whom he had every reason
to be polite, on his maiden speech, strains his
power of flattery to the breaking - point. " Of
Lord Robert I have no hesitation in saying that
if he will work, and he has a working look, I
will make a man of him." There is a prophetic
irony in the subdued compliment.
Where, in all this, can one recognise Lord
Salisbury either in early middle or early old age ?
, With his marriage, which inspired him with
an entirely new spirit and with a consequent
lack of money which taught him perforce how
to write, the scene changes as though by magic.
An entirely new personality breaks on to the
stage. From some ancestral cavern of the mind a
power is released. Whether it comes from the
old Burleigh of Tudor fame or from his grand
mother, the terrible and admirable old Lady
Salisbury of whom Creevey is never tired of
talking half in derision and half in fear, while
the Hertfordshire villages still wonder at her
plush dress and her coach, does not matter. A
new Robert Cecil considers the scene in Parlia
ment.

68 POINTS OF VIEW
XII. It may be taken for granted that the brilliant
disquisitions on general politics in this work,
written by one who had an intimate knowledge
of the mind of the late Lord Salisbury, represent
his attitude towards affairs, even where they are
not reinforced by written or spoken testimony.
The situation in Parhament in the 'fifties and
early 'sixties was an unreal one. No great issues
separated the contending groups into deflnite
parties divided by real principles. The Tory
Party had been hopelessly broken by the Free
Trade schism of 1846. The Whigs and Radicals,
though nominally combined, agreed on no funda
mental issue of policy. The Peelites, surviving
their founder, would neither rejoin the Tories
when Protection had been abandoned nor unite
themselves permanently with the Whigs. They
simply existed as a loose force ready to overturn
any Government on a chance issue.
As a consequence the Whig-Radical Coalition
would survive for a few years, generally and
especially if under Lord Palmerston without any
advantage to the Radical policy, until they were
turned out by a Radical secession. The Con
servatives then took their place for a month or
a year until their various opponents rallied once
more against them. " The Whigs," wrote Lord
Robert in 1865, " furnish the placemen, the
Radicals furnish the votes, and the Conservatives
should furnish the policy." This is, in fact, what
happened from 1848 till the death of Palmerston
in 1865. What in these circumstances was the best
policy for the Conservative Party ? Mr. Disraeli

LIFE OF LORD SALISBURY 69
had a clear view, which has been summed up by xii.
several dictums attributed more or less impar-
tially to him or to Lord Randolph Churchill :
" The business of an Opposition is to oppose " ;
" put the Government in a minority whenever
you can, but never take office unless it suits you."
Mr. Disraeli went even further than the last
motto. His belief was that the only hope of
rallying the spirits of an Opposition long out of
power was " to put them into office whenever
you could and hold on as long as you could,"
and he was deeply grieved whenever Lord Derby
declined his view.
Lord Salisbury, viewing the same set of cir
cumstances, formed an exactly contrary opinion
to that of Mr. Disraeli. The business of the
Conservatives was to keep the Whigs in power
in order that they might pursue a Tory policy.
Vile combinations with the Radicals simply
pushed the Whig into horrible Radical excesses.
All this he expressed with a pointed pen in the
Quarterly.
" To crush the Whigs by combining with the
Radicals was the first and last maxim of Mr.
Disraeli's Parliamentary tactics. His tactics were
so various, so flexible, so shameless " that he had
" the knack of enticing into the same lobby a
happy family of proud old Tories and foaming
Radicals." He records : " The humihation of
the Conservatives could not blind themselves to
the fact that their leaders held office not because
Conservatism was preferred by the House of
Commons, but because the Radicals wished to
punish the Whigs for not being Radical enough."

70 POINTS OF VIEW
XII. Thus began an antagonism, long before the
Reform struggle of 1867, which was destined to
last in reality until Lord Beaconsfleld's death —
in spite of the Berlin Congress and the dual
bestowal of the Garter.
The ordinary view, up till the publication of
this Life, has been that 1867 was a tiff between
a senior and junior Minister, started by a special
disagreement and ended by a reconciliation.
These volumes absolutely disprove this concep
tion. Lord Beaconsfield indeed could afford to
be, and was, generous. Throughout his life he
was ready to fall on the younger man's neck, as
he actually did at Hatfield, and cry, " Robert,
how glad I am to see you." But " Robert "
disapproved, disliked, and doubted *' Dizzy "
from start to finish. I think that in this matter
the hated has the moral advantage over the
hater. Lord Salisbury was a static Conservative ;
Lord Beaconsfield was an active one. The flrst
was in favour of standing firm in the 'fifties and
'sixties in the hope that the nation would of its
own volition return to the Conservative flag, the
second was of opinion that all possible steps should
be taken to encourage the party and arrange that
this desirable object should be attained.
None the less. Lord Salisbury showed no more
independent activity in the House than was
compatible with the approval of Lord Exeter,
who owned his borough of Stamford, or the
custom of the time. When his father rebuked
him for his Press articles against his leader he
got the best of the argument — chiefly on the
ground that if that father would not give him

LIFE OF LORD SALISBURY 71
more than £100 a year a married man had to
live. So great was the ability he displayed in
the Commons that when the Derby - Disraeh
Administration of 1866-1867 was returned to
power he was immediately designated for the
India Office. The unkind suggested that that
office was known in the Ministry as the " padded
room." But no one could deny that the new
Secretary immediately showed a vigorous grasp
in dealing with the affairs of his office.
Unfortunately the Ministry, like its evanescent
predecessors, was dependent for office on the
disunity of its foes. Reform was the canker
apparently bound to destroy it — and Lord Salis
bury held as firm views on electoral reform as
any one else in the Ministry, This is not perhaps
to say much.
It would be as easy to explain the sonnets of
Shakespeare as to unravel the tangle of reform
policies between 1831 and 1867. The Whigs said
the settlement of 1831 was final : their Radical
allies soon began to say it was not. Liberals
hedging between the two continued to introduce
small reforms, all of which inevitably failed, and
finished in Mr. Gladstone's debacle in 1866 — when
the Whig cave threw him and his Bill downstairs
together. The Tory standpoint towards reform is stated
with the utmost fairness in these pages — except
that it does not go back far enough. At the
beginning of the nineteenth century there were
two theories, which may be briefly described as
the Right to Vote and the Balance of Interest.
The flrst was called " democracy " — a horrible

XII.

72 POINTS OF VIEW
XII. word to our forefathers both in the American
Repubhc and in the United Kingdom. The
second was called constitutionalism, and appealed
equally to old Whigs and Tories. Unfortunately,
in 1827, when Peel and the Duke of Wellington
had a chance of passing a real Reform Bill, since
the old system, as Pitt had foreseen forty years
before, was doomed, they chose instead to break
their party up over Catholic emancipation. The
Whig Reform Bill of 1832 was therefore passed,
and in the hurry and excitement of the moment
the Whigs enacted a franchise based, in spite of
its inequalities, on pure numbers. Vestigia nulla
retrorsum — the country was committed to demo
cracy. The Tories and some Whigs still clung
to the idea that plural voting, based on money
or education, could still be made to counterbalance
the inevitable downward extension of the property
qualification for voting. But the plan was im
practicable once the first step in the opposite
direction had been taken.
Disraeli and Derby, much against their will,
recognised this, and preferred the more expedient
course of passing a moderate Democratic Bill of
their own to being rolled in the mud for no useful
purpose. Lord Salisbury took the contrary view
and resigned from the Government. Much might
be said on either side. But what is surprising is
this. Lord Derby not only approved but led the
way to this decision, as the correspondence in
the Life of Disraeli amply proves ; the whole
party, with a few dissentients, agreed. Why did
Lord Salisbury fix his vendetta on Disraeli alone ?
Why did he for years after in his private corre-

LIFE OF LORD SALISBURY 73
spondence refuse to refer to him in any other xn.
terms except " that single person " who prevented
him being reconciled with his party ?
These matters lie deep in the recesses of
temperament, Disraeli could not abide Peel, and
Salisbury could not endure Disraeli. But prob
ably in both cases there was something more
profound and less ignoble than a mere personal
aversion. All these men felt instinctively that
they stood for different conceptions of the future
of their party — Peel for the Conservative In
dustrialism of the manufacturer ; Disraeli for a
Tory Democracy embracing all classes ; and
Salisbury for something which is older than either
in history, the Toryism of the land.
Lady Gwendolen Cecil's treatment of her mass
ive subject-matter undoubtedly grows upon one in
the course of reading. The effect of a treatment
which is both detached and penetrating is cumula
tive. And suddenly one realises that the figure on
the canvas, hitherto nebulous and a little elusive,
is assuming the precision of a finished portrait.
***** *
The death of the second Marquess did not
leave Lord Salisbury long in the House of Com
mons after the catastrophe of 1867. It was long
enough, however, to allow him to state that one
amendment of his ex-leader " was too clever by
half," or to suggest in another case " that the
pea was not always under the same thimble,"
In attack his phraseology, usually described as
ironic, was not devoid of a bitterness which was
almost savage.

74 POINTS OF VIEW
XII. When an unfortunate Irish Secretary had
become involved in some statistics about the
simultaneous increase of emigration and live
stock, in order to prove that special relief was
not needed in Ireland, Lord Salisbury suggested
that " he was looking forward to a period more
peaceable for himself when it would be sheep and
not Irishmen over whom he had to rule." When
Gladstone lost his Reform Bill of 1866 by too
much bullying the comment was, " Imperious
language can only be justified by the obsequious
ness with which it is obeyed." Nor is the acid
diluted in the written word, where Lord John
Russell suffers for his foreign policy : " Fresh
from the bombardment of Kagosima he extols
the virtues of Christian moderation."
It appears to me that the biographer under
estimates the permanent value and popularity of
the Collected Essays. The reviews of the foreign
policy of the 'sixties will always live owing to
their intensive knowledge and their poignant and
lively style.
In the House of Lords the new Marquess
acted in general with the front Conservative
bench, but the Upper Chamber by no means
cured him either of his independency of view or
of his habit of what, in the more charitable years
of his existence, used to be called " thinking
aloud." It is probable that a good deal of this
mordancy of phrase and of so-called indiscretion
can be accounted for by the very extraordinary
method by which he prepared his speeches. All
politicians have their own system of preparation.
Disraeli and Lord Randolph Churchill learnt their

LIFE OF LORD SALISBURY 75
great popular speeches by heart and recited them xii.
verbatim without notes. Mr. Gladstone wrote
out the transitions between topics and the classic
quotation which graced the peroration. Most
men write down a few rough headings or memorise
a few striking phrases. Lord Salisbury, on the
contrary, we are told, never made a note and
never conceived a phrase in advance. He brooded
deeply over his subject, sometimes for days, and
delivered himself of the accumulated result,
slowly, pausing for the right word until it came.
The proceeding must have required great nerve,
but the biting phrase was absolutely unpre
meditated — otherwise it might never have been
uttered. It was the spontaneous outburst of an
ironic personality.
As to the form. Lord Rosebery has described
" that deep voice rolling out sentence after
sentence of polished rhetoric as though the
wells of eloquence would never run dry." His
most notable speeches in the Lords in 1869
were devoted to the powers and constitution
of that body — o, subject uot devoid of interest
to-day. On the question of powers he was a '* die
hard " : " If it be true that the House of Lords
is a mere copying machine for the decrees of the
House of Commons, the sooner its duties are
remitted to that useful instrument the better."
One can imagine the inflection on the word
" useful." He was, however, in favour of an
increase in nominated life-peers. " We want, if
possible, more representatives of diverse views,
and more antagonism," and then, with a final

76 POINTS OF VIEW
XII. sentence which contains the quintessence of
Salisburian humour and wisdom, " I believe that
the effects of this Bill will be small, and I like
it the better for this."
Lord Salisbury did not suffer any of the
penalties which usually await successful or un
successful revolters for his performance over the
Reform Bill of 1867. His motives had been
obviously sincere, and many a Conservative
cherished a sneaking sympathy for his vigorous
protest. But in any case Mr. Gladstone was
re-creating his fortunes. When that wonderful
old man, Lord Palmerston, died, game to the
last to eat flve courses at dinner with a slice
of ham added, Mr. Gladstone seized the helm
and steered the Whig ship right into the em
bracing waters of Radicalism. Now was the time
for all good Conservatives to rally to the party
irrespective of past differences, and Lord Salisbury
rallied with the best in the defence of Church and
State. The magic of Disraeli prevailed over the magic
of Mr. Gladstone in the election of 1874, and
the Conservative Party was returned with an
immense majority. Where did Lord Salisbury
stand ? It is an immense tribute to his per
sonality that men all over the country debated
this question. He had said that the result of
the Reform Bill of 1867 would be that " the rich
would pay all the taxes and the poor would make
all the laws." He had cursed his party leaders,
including the new Prime Minister, with bell,
book, and candle. All his immediate judgments
had been falsifled. The Tory working man whom

LIFE OF LORD SALISBURY 77
Disraeli had tried to enhst in his hot youthful xii.
days of the early nineteenth century had rallied to
that great intellect already sloping to its decline.
Lord Salisbury had proved demonstrably wrong
in the electioneering results of 1867.
A Cabinet might well have been formed with
out him. But Disraeli was always generous in
his appreciation of intellect. The two men chased
each other all over London and Hertfordshire till
the flnal compromise was arranged. Disraeli has
already told how he drove twice up to Lord
Salisbury's door in a hansom and back before
he could nerve himself to the interview. This
volume puts a far graver interpretation on some
thing which in its essence might appear simply
ridiculous. We now see that Lord Salisbury
distrusted Lord Beaconsfield by one of those
antipathies which are beyond explanation. The
pressure of events, of private friends, of patriotism
forced him to accept office, and so ultimately
the succession to the leadership of the Tory Party
and the guidance of the. State. But, after all.
Lord Beaconsfield was not a moral leper ; he
was a far greater statesman, or had at least a
wider intellect than Lord Salisbury, and this
secret repugnance does no credit to the younger
man. Later in life Salisbury himself, when the
full responsibility of leadership was on him, had
to come to more than one accommodation with
Lord Randolph Churchill or Mr. Chamberlain
which was distasteful to him in principle — so
that he cannot pose before history as that im
possible person, the political Simon Pure.
Indeed, the biographer admits very frankly

78 POINTS OF VIEW
XII. that the crash of 1867 was a lesson to him by
which he profited. Henceforward, whenever a
political view or move was suggested to him, he
was not content to test it merely by theoretic
conceptions of principle, but asked first of all,
"Is it practicable ? " It was a steady mental
advance in this direction which made him the
great party leader he ultimately became,
From 1874 to 1880 his life, first as Secretary
of State for India and later for Foreign Affairs,
becomes part of the history of the last great
Disraeli Government. As an administrator he
was an undoubted success, though, like many
but not all great men, he was a bad hand at
devolving his work to his deputies. It is pathetic
to think of the Foreign Secretary corresponding
with each and all of his Ambassadors in his own
hand — ^just as years afterwards he made copies
of his reply to Randolph's letter of resignation
for every single member of his Cabinet. It is
doubtful whether even Mr. Gladstone excelled
him in sheer capacity for hard work. Lord
Beaconsfield did not share Lord Salisbury's admir-
tion for our Ambassadors. He always referred
to the British Ambassador to the German Court
as " our goosey-gander at Berlin."
But a consideration of these six years of life
would involve me in an entire defence or criti
cism of the Asiatic and European policy of
the Ministry of which Lord Salisbury was the
second most important member. Space obviously
forbids. Indeed, if I may venture on a criticism, it is
that a disproportionate amount of space is devoted

LIFE OF LORD SALISBURY 79
to the Eastern crisis of 1876-78. As far as I can xii.
see, the letters, while showing in a clearer per-
spective the excellent work Lord Salisbury did,
contribute nothing new. Perhaps the war has
made us all unduly weary of diplomatic
tangles. The guns have cannonaded the whole
Victorian facade of Austrian, Russian, and German
diplomacy into political rubble. The Constanti
nople problem of the 'seventies is as interest
ing to us as that which faced the Byzantine
Emperors. This is no criticism on our Foreign Office of
the day. Loose talk about " backing the wrong
horse " or the failure of the Berlin Congress is
very often nonsense. A diplomatist is not a
prophet ; he may be content if he averts a press
ing danger and sees his work endure a few years.
And the British delegates to the Berlin Congress
achieved so much at least.
In the last few years of the Ministry the
Foreign Secretary came into closer accord with
his chief. He was surprised to discover that the
Prime Minister could be honest. The Premier
responded cordially with praise of Lord Salis
bury's moral courage.
But yet to the very end the note of criticism
is there. The two men did not disagree on
Imperial and foreign policy. But the junior did
not agree with the senior's presentation of the
case, nor did he believe that the policy would
prove a good electioneering cry. The first
criticism was a matter of taste. The Corinthian
canon of Hatfield conflicted with the more florid
Oriental style. On the second point the critic

80 POINTS OF VIEW
XII. might have proved wrong had the Premier
dissolved in 1878, but by underestimating his
adversaries he over-stayed his market. So for
the moment we take leave of Lord Salisbury in
the hour of defeat pondering gloomily on the
instability of a foreign policy based on the varia
tions of democratic control.
What is the type of the intellectual character
and for what does that character stand in the
politics of the later nineteenth century ? On the
flrst point I prefer the judgment of the biographer,
who knew Lord Salisbury intimately and yet pre
serves a dispassionate tone, to any opinion I
could form, who did not know him :
" Without any apparent effort or interval of
transition he passes straight from the thickest
dust of battle into an atmosphere of contemplative
reflection, in which he surveys the subject as it
were from a distance and in all the circumstances
of its origin and environment. This gift followed
him into the fields of counsel and administration,
enabling him throughout his career to concentrate
his judgement at any given moment upon the
issue in debate with an impersonal coolness wholly
unaffected by the excitement of conflict, national
or political, which surrounded it at the time,
and in which he himself was perhaps taking a
leading part." In a word, that rare product, the
flghting philosopher !
It is too early to appraise his ultimate place
in history. He fought or consorted with two
greater flgures in Gladstone and Disraeli, but he
survived them both, and ultimately held the
stage. Some may dispute the pre-eminence I

LIFE OF LORD SALISBURY 81
give Disraeli over him. I would defend myself xii.
by quoting what was no doubt Lord Salisbury's
ultimate view on the Disraelian " betrayal "
of '67 :
" His [Disraeli's] mind did not work that way.
The English nation would lose none of its essential
characteristics because this or that set of men
were not admitted to the polling-booth. Its
natural leaders would still remain its natural
leaders ; and it had always been his contention
that the extent and limitation of their authority
must depend in the main on their own conduct,
and certainly would not be affected by any
numerical changes in the machinery incidental
to representative institutions."
Such changes might tell in favour of one party
or the other — in this case probably the Conserva
tive one ; principle was not involved at all. So
thought Disraeli, brooding over a century or
two. But Lord Salisbury was thinking about nothing
of the sort. He stood for certain deflnite mid-
Victorian ideas — property and aristocracy versus
the mob. " The rich would pay all the taxes
and the poor would make all the laws." He had
a right perhaps to expect that the rich Whigs
and the country squires would stand behind him.
But, looking back now down the vista of over
half a century, we see that in the broad view
Disraeli's judgment was secular and Lord Salis
bury's morality the fashion or interest of a day.
Disraeli's view has been justifled by the event,
because he saw deeper into the nature of the
people. Romance triumphed over logic, and for
VOL. II G

82 POINTS OF VIEW
XII, this reason the elder statesman was the greater
intelligence. Perhaps if the two men met and
discussed the matter in the Elysian flelds the
argument would be brisk, but the conclusion,
I think, would be the same.

XIII
THE LATE SIR SAMUEL EVANS
Samuel Evans was born in 1859. He was, and xni.
was proud to be, of humble origin. Through 
many difficulties he made his way to the
Middle Temple, by which Society he was called
to the Bar in 1891. He was granted the
Patent of Queen's Counsel after little less than
ten years' practice at the Bar. He became a
Bencher and Trustee of the Middle Temple in
1908, and in the same year was made Solicitor-
General, holding that office until the year 1910,
when he became President of the Probate,
Divorce, and Admiralty Division. He was greatly
assisted in his career by the unswerving fidelity
shown to him by a stalwart Liberal constituency,
the Mid -Division of Glamorganshire, which he
represented in Parliament from the year 1890
to 1910.
Such in the briefest outline was the career of
a very remarkable man. Its record of achieve
ment was distinguished, but if anything it lagged
behind the measure of his real powers : or it
would at least have appeared so to those who
knew him best had not the Great War afforded
bim an opportunity so singular. 83

84 POINTS OF VIEW
XIII Samuel Evans began his legal career, as
many an aspiring young Welshman had done
before him, in what is conventionally but not
disrespectfully called the lower branch of the
legal profession. But he was ambitious and dis
cerned no kingdom worth the conquering in the
small legal activities of a provincial centre. And
so, saving what he could, he decided to take the
venture which many had dared before him, and
entered upon his studies for the Bar. The
indulgence of the Inns of Court has rendered
the transition very easy in all but its financial
aspect. Evans as a young man was merry,
humorous, convivial, and sociable. He retained
these qualities and added to them until the
period of his last illness, and I remember his
describing to me in glowing language the new
world which was opened to him by the social
and legal camaraderie of the Middle Temple. To
the day of his death he was a devoted member
of this Society. He never became Treasurer of
it, for one hardly can unless length of days
beyond the ordinary span is conceded. But he
lunched there every day when his Court was
sitting ; and on occasions when its hospitable
doors were thrown open to guests he was the
life and soul of every company.
His career at the Bar and in Parliament began
almost simultaneously. In the House of Commons
he did not enjoy at first equality of opportunity
with his contemporaries. Work at the Bar came,
indeed, but it was for some time trivial, un-
remunerative, and tiresome, involving constant
journeys to Welsh County Courts. None the

THE LATE SIR SAMUEL EVANS 85
less it became recognised gradually, but quite xiu,
plainly, that the obscure practitioner climbing
laboriously at so low a rung of the professional
ladder was a Parliamentarian of very unusual
gifts, I am not here concerned with this aspect,
remarkable as it was, of his career, and, therefore,
all that I propose to say under this head may
be said in this place. He was in debate humorous,
resourceful, well-informed, and indomitable. For
many years he and the present Prime Minister
bore the burden and won the principal glory of
the unofficial opposition to the Unionist Party,
Nor was it found easy as between the two men,
for the years I have in my mind, to decide which
was destined to the greater Parliamentary career.
Had Evans been in a position to devote himself
to that hard taskmistress, politics, it would have
been difficult to rule out any prospect, however
dazzling, as the goal of his ambition. Nor were
his gifts confined to the purposes of opposition.
He was Solicitor-General for three years during a
tempestuous period in domestic politics. Many
most difficult Parliamentary tasks were placed
upon him. He was equal, and more than equal,
to them all. He was always resourceful, always
imperturbable, always the master of his subject,
and always light in hand. I have not known
in the sixteen years in which I have been in
Parliament a Law Officer whom, were I Prime
Minister, I should more confidently appoint to
confront a period of parliamentary storm.
His professional advancement hardly marched
equally with his political fortunes. It is true
that he acquired and rapidly acquired, a busy

86 POINTS OF VIEW
XIII. junior practice, but it was entirely local in its
origin : its range, emoluments, and importance
were not considerable : and it was never of the
kind which gradually brings a provincial barrister
into contact with those great London solicitors
whose nods make men or break them. But a
busy practice of the kind indicated, with per
petually recurrent railway journeys, often under
taken by night, is one of the most exhausting
forms of work at the Bar. Evans made up his
mind, though not without some natural anxiety,
that he could no longer support both his work
in Parliament and the growing exactions of the
practice of a local junior. And accordingly we
find him in 1901 applying for a silk gown, after
less than ten years' practice at the Bar, His
application was successful, and his name duly
appeared in the list as the youngest in standing
of all to whom the new dignity had been granted.
He lost on balance no professional income by
his promotion, but he did not gain as much as
those who knew his real powers expected. It is
true that he soon forged his way into the front
rank of the leaders of the South Wales Circuit.
But the theatre in which his talents should have
found an early and a generous recognition — ^the
Law Courts in the Strand — almost seemed neither
to have heard of him nor to wish to hear of him.
It is no doubt true that he did not give because
he could not afford to give, himself a real chance
there. All his life he had to take work where
it was offered to him. Such work, now become
considerable, constantly awaited him on Circuit.
He could not afford to refuse it in the hope,

THE LATE SIR SAMUEL EVANS 87
fugitive and uncertain, that it would be replaced xiii.
by the substitution of a London practice. And so
he continued to present the appearance of a parlia
mentarian, possessing many gifts of the most
brilliant and striking order, whose effectiveness
was plainly diminished by recurrent absence and by
pre-occupations which in perspective were trivial.
I have spoken already of his Parliamentary
work as Solicitor-General. It is only necessary
to add that as soon as he was brought continually
as Law Officer into the Law Courts in London
he established his claim to be counted among the
shrewdest and most telling of the advocates of
the day. Occasionally political prejudice marred
the effect of his advocacy and exaggerated a
slight uncouthness which he never quite banished
from his professional manner. Thus his handling
of the famous Swansea Education case in the
Divisional Court was among the least happy of
his professional performances. But no one could
be with Evans, just as no one could be against
him — and I was often both — without realising
that he was completely master of the craft. He
never missed a good point. He never dwelt
upon a bad one. And he was richly equipped
with all the legitimate arts and devices by which
the great advocates recommend their case and
disparage that of their opponent.
After three years as Solicitor-General he began
to entertain some anxiety as to the future of
Mr. Asquith's Government and the effect which
its disappearance might produce upon his own
fortunes. I was myself — and I told him so at
the time — quite confident that he had made his

88 POINTS OF VIEW
XIII. legal reputation in London so decisively that he
might put behind him for ever the nightmare of
the railway journeys of provincial work. But
for a man by disposition bold and even assertive
he was singularly modest on the subject of his
own position and prospects. He was doubtful
— absurd as the apprehension seemed to his
friends — whether he would be able to command
the minimum fee which custom prescribes as
appropriate in the case of one who has been a
Law Officer of the Crown. Other influences
conspired to make their impression felt. Mr.
Asquith at that time was anxious to offer pro
motion to the present Viceroy of India, and he
accordingly pressed his Solicitor-General to accept
the Presidency then vacant of the Probate,
Divorce, and Admiralty Division, assuring him
at the same time that he did not contemplate
this employment, distinguished though it was, as
the climax of the new President's judicial career.
The combined forces of these various con
siderations prevailed, and in 1910 the new
President took his seat for the first time. It
would be idle to pretend that the appointment
was received with special enthusiasm by the
legal profession, taken as a whole, and in some
quarters the impression created was stated in a
manner neither discreet nor reticent. It was
complained that the new President hardly knew
one end of a ship from another, and was com
pletely ignorant of the manifold refinements and
peculiarities of maritime law. In a very brief
space those who had disparaged his professional
ability were involved in much public absurdity.

THE LATE SIR SAMUEL EVANS 89
With characteristic ardour he began to prepare xiii.
for his new labours by mastering every standard
work which illustrated the subject, by spending
all his vacations on sea voyages, and generally
by an onslaught, alike reckless and ruthless, upon
these mysteries which pedants sometimes inform
us take so many decades to master. And so in
a few months the new President, already generally
admitted to be admirably equipped for the
purpose of Probate and Divorce work, became
recognised as a shrewd, informed, and very com
petent Admiralty Judge. Had he died in the
early part of 1914 it would hardly have been
possible, even for a pen as friendly as mine, to
paint in warmer or more laudatory language the
achievement of a busy life. But with the out
break of the European War in August responsi
bilities staggering in their complexity and novelty
were thrust upon him. It may be doubted
whether at that time the President, who was
not accustomed to fritter away his leisure, had
ever even opened a volume on the subject of inter
national law. It is ironical to recall that persons in
high authority took so serious a view of the situa
tion that suggestions were gravely made to the
President that he should consent to delegate the
Prize work to some solid and learned Judge who
was to be assigned to his Division for that purpose.
He waived aside this suggestion with manly
and self-confident indignation. His measures to
equip himself for his new duties were not lacking
in energy, thoroughness, or decision. He spent
a large sum of money on the purchase of a library
on international law. He flung himself into its

90 POINTS OF VIEW
XIII. study with a devotion and industry which have
hardly ever been exceeded by any English Judge.
And, indeed, the task was one of extreme diffi
culty. It was not merely that of mastering the
doctrines of international law in all their ramiflca-
tions. It was not, to take a special illustration,
merely that of acquiring familiarity with the
great intellectual structure which the vigorous
understanding of Lord Stowell had contributed
to the maritime jurisprudence of the world ; the
task which fell upon Sir Samuel Evans was im
measurably greater. It was not only necessary
for him to know and understand all that had
been said and all that had been done ; it was
necessary that he in his turn, taking the torch
from Stowell's hands, should make an intellectual
contribution to the development of the science
hardly less remarkable than that of his accom
plished predecessor. The whole fleld of inter
national law had been transformed since the
Napoleonic War, and in particular the develop
ment of steam, electricity, cables, and of the
character of modern weapons had rendered
obsolete much of the learning which illustrated
Lord Stowell's principles ; and in many cases
made it necessary to pursue those principles to
their flrst origin and, when established, to re
state and adapt them. In the discharge of this
stupendous task the President displayed extra
ordinary mental qualities. He proved himself
not only a great Prize Judge but a very great
Prize Judge. The volumes which contain his
judgments will be hereafter valued alike as a
treasure-house of learning, and as an example

THE LATE SIR SAMUEL EVANS 91
of trenchant reasoning and lucid exposition, xiu.
Most of the great cases which came before him
produced a jungle of baffling and repulsive detail
Immense bundles of documents as high as his
desk were brought before him week by week.
Never did his patience falter, his grasp weaken,
or his memory fail. It happened in almost every
great case that he himself suggested some new,
relevant, and unobserved point which had en
tirely escaped the observation of the experienced
solicitor and Counsel before him. The task of
a Judge of flrst instance is always in one way
more difficult than that of a court of appeal.
The matters presented to him never appear in
so clear and succinct a form. Each hearing
clarifles the issue ; and by doing so reduces
alike the area of controversy and the material
to be mastered. Especially was this true of the
President's work. Stacks of ill-arranged and ill-
digested documents were habitually flung at his
head in matters peremptorily requiring an im
mediate decision, which months later, if they
became the subject of appeal, would be found
collected before the Judicial Committee of the
Privy Council in a neatly arranged printed
volume. In spite of these difficulties Sir Samuel
Evans's reputation grew more and more; and
the occasions on which the Judicial Committee
interfered with his decisions were extraordinarily
few. And it is certainly true that on more
than one of these few occasions of divergence
persons very highly qualified to form an opinion
respectfully preferred the conclusion of the
President.

92 POINTS OF VIEW
XIII. I think it worth while to insert in this place
some characteristic illustrations of his judicial
method at this period of his career. And before
I do so I would recommend some young barrister,
who has given attention to the subject of inter
national law, to consider whether a volume
entitled The Judgments of Sir Samuel Evans in
Prize, consisting not merely of the judgments
themselves but rather of an exposition of the
President's conclusions and mode of reasoning,
might not bring in a great return of public
reputation. The extracts which follow are
shortly set out, for they speak for themselves.
I have interposed informally such bald comment
as seems necessary to make the matter selected
intelligible. This part of my essay is naturally
intended, in the first place, for technical readers,
but most laymen of general experience in affairs
would, I think, derive profit and instruction from
its consideration.

1916, , 195;
i.&r
178.

The " Corsican Prince "
p. 195;
iB.&c, This was a claim by the owners of a British
ship for freight, expenses, and demurrage in
respect of the carriage of a cargo of barley shipped
before the war at Odessa and consigned to
Hamburg ; the cargo was seized in Prize ; it
was sold to avoid deterioration and the proceeds
were paid into Court. Part of the proceeds were
ordered to be released to a Russian bank, part to
a French bank.
The shipowners entered a caveat against the
release of the proceeds. The Russian bank took

THE LATE SIR SAMUEL EVANS 93
steps with a view to having the shipowners' xiu.
claim dealt with in the Commercial Court ; the
shipowners claimed in the Prize Court an order
that the amount of their claim, to be assessed
by the Registrar, should be paid out of the pro
ceeds of the goods which were in Court. The
practical ground of the dispute was that by the
principles of Common Law no freight had been
earned, the voyage not having been completed,
while the Prize Court allowed compensation in
certain cases in the nature of freight upon goods
seized in Prize where the voyage had not been
completed. The President decided that the Prize
Court had exclusive jurisdiction over the matters
in dispute. Sir S. Evans in the course of his judgment
said : " The matter which now arises for decision
is whether the claim of the shipowners, and the
questions as to the rights of the shipowners and
the cargo owners in respect of the proceeds, are
to be determined in a Common Law Court in
the King's Bench Division or the Prize proceed
ings in this Division.
" The subject is one of general importance
affecting our judicature, and I propose, in the
first place, to deal with it upon lines applicable
to proceedings of this nature generally ; and then
to state the particular facts of this case to which
the principle and practice governing such cases
have to be applied.
" Counsel for the shipowners in their argument
cited many authorities for the proposition that
this Court, exercising its Prize jurisdiction, had
the exclusive right to determine such questions

94 POINTS OF VIEW
XIU. as those in issue, and not a Common Law Court ;
and that such determination should be in accord
ance with the Prize Law. It has been my duty
to examine those authorities and others throwing
light upon the subject. Having done this, it
does not appear to me to be necessary or useful
to go through the cases in detail, because the
examination of them shows that the results which
are summarised in text-books of various authors —
themselves authorities of acknowledged renown
— are abundantly justified by the decided cases."
He then referred to Story on the Principles
and Practice of Prize Courts ; the decision of
Story J, in Maisonnaire v. Keating (1815), 2 Gall.
325; Kent's Commentaries _on American Law;
The " Siren " (1868), 7 Wall, 152 ; Halleck's Inter
national Law ; Le Caux v. Eden, 2 Douglas, 594 ;
Faith V. Pearson, 4 Campb., 357.
" The Prize Court has constantly dealt with
claims for freight and damages where ships or
cargoes have been captured or seized, not only
as between captors and owners, but also as
between owners of ships and owners of cargo,
and has adjudicated upon such claims whether
the ship or cargo has been released and when
both ship and cargo has been released ; and
apparently no action involving questions in
similar cases were brought in any Common Law
Court. "And this is obviously for grounds solid in
justice and convenient in practice, because the
two Courts administered two different codes or
systems of law ; the Prize Courts deal with
claims in accordance with the Law of Nations,

THE LATE SIR SAMUEL EVANS 95
and upon equitable principles freed from con- xin.
tracts, which almost always cease to have effect
upon capture or seizure, by reason of the non
appearance or non-completion of the contract of
affreightment ; whereas Common Law Courts
would only determine the consequences of the
strictly legal contractual obhgations of the parties.
The King's Bench Courts would either give the
claimants for freight the whole or nothing,
according to whether the contract of affreight
ment had been performed or not. But the Prize
Court takes all the circumstances into considera
tion, and may award, as it has done in decided
cases, the whole or a moiety of the freight, op
a sum pro rata itineris ; or it may discard the
contract rate altogether, even as a basis for
assessment or calculation — vide the ' Twilling
Riget,' 5 C. Rob., 82 ; or it may withhold or
diminish the sum by reason of misconduct — as,
for example, resistance to search, or spoliation.
" And we find that in accordance with the
principles, precedents, and practice which have
established the exclusive jurisdiction of the old
High Court of Admiralty, to which the Admiralty
Division of this Court has succeeded when sitting
as a Prize Court, the Prize Court Rules have
been framed for this Court, and have been made
by the Privy Council under the Prize Court Act,
1894, and not by the Rule Committee which
framed the Rules for the High Court. It is not
necessary to refer further to these rules, but
attention may be directed to Order XLV., which
provides that in the absence of prescribed rules
the practice of the late High Court of Admiralty

96 POINTS OF VIEW
XIII. in Prize Proceedings shall be followed, or such
other practice as the President of this Division
may direct. It may also be noted that the appeal
from decisions of this Court on all questions,
claims for freights included, is to the Judicial
Committee of the Privy Council ; whereas, if
similar questions could be tried in the Commercial
Court or any Court of the King's Bench Division,
the appeal would be to the Court of Appeal or
to the House of Lords.
"This Court has also its special officers, like
the Registrar and Merchants and the Admiralty
Marshal, and its special machinery for dealing
with all such matters as may arise in prize pro
ceedings. " I have dealt with the important question of
jurisdiction generally. But in truth, counsel for
the claimants did not dispute the main proposi
tions which have been stated ; but contended,
as I understood, that where, as in this case, the
captors or the Crown after seizure released the
goods, not only had the King's Bench Courts
jurisdiction to deal with the claim for freight,
but that they alone had the jurisdiction to the
exclusion of this Court, even when the proceeds
of the cargo seized and sold are now in the hands
of this Court. This contention is, in my view,
quite unsound. A somewhat similar argument
was put forward in Le Caux v. Eden (2 Dough,
594) on the ground that the ship had been declared
by the sentence of the Prize Court to be no prize ;
but it did not prevail. As I have before pointed
out, the Prize Court exercised jurisdiction and
exclusive jurisdiction, where the subject-matter

THE LATE SIR SAMUEL EVANS 97
had been acquitted or released, and it had been xiii.
held that such jurisdiction was vested in it, even 
when captures had been abandoned without any
proceedings having been instituted at aU."
He gave directions, therefore, that the claim
of the shipowners and all questions between them
and the Russian Bank and the French Company
be heard in Prize proceedings.

The Marie Glaeser " i9i4,
p. 218;
Note. — The Prize Court sat for the first time on the i B. & c,
38 11
5th September 1914, the war having broken out on the „ ' '
4th August. This case is interesting amongst other things 1914. '
as showing the grasp and width of knowledge which
Sir Samuel Evans had acquired of Prize Law at that
early date.
This was a claim for the condemnation of a
German ship seized at sea on August 5, 1914.
Appearances were entered (a) on behalf of a
German Company which owned the ship who
claimed the vessel ; (6) on behalf of English
shareholders in the German Company ; (c) by
Dutch mortgagees ; (d) by other claimants in
respect of disbursements and necessaries.
It was held that, the Vlth Hague Convention
not protecting the vessel, she must be condemned.
Sir Samuel Evans then dealt with the claims
(a) of the owners.
He found that the affidavit in support of their
claim to appear was insufficient ; the rules required
an affidavit not merely showing the contentions
of the claimants but facts which in the special
circumstances will entitle them to come to the
VOL. II H

98 POINTS OF VIEW
xiiij Court to enter an appearance. He quoted from
Dr. Lushington in the " Pana ja Drapaniotisa,"
Spinks, 336, the following passage : " The prin
ciple is this : That to support a claim in the
Prize Court the individual asserting his claim
must flrst show that he is entitled to a locus standi.
No person to whom the ¦ character of enemy
attaches can have such a claim, save by the
express authority of the Crown ; therefore, to
prevent deception, Which might arise from the
use of ambiguous terms, and to stop claims which
might be preferred in one sense by the subjects
of friendly or neutral states resident in the enemy's
country and carrying on a trade there, it has
always been deemed necessary that the claimant
should describe, both affirmatively and negatively,
the character in which he claims.
" Certain forms of affidavit, which were then
in use, are set out in the judgment in that case,
and though those forms of affidavit are no longer
in use in this country, the affidavits which lead
to the flling or the entering of an appearance in
prize cases in this Court ought to conform to
the substance of the affidavits which were in
vogue in 1856. They ought to state clearly what
the position of the owner of the vessel is, what
his nationality is ; and, if it appears that he is
an alien enemy, in the ordinary course the circum
stances ought to be stated in the affidavit, showing
upon what grounds he claims to be standing in
some character other than that of an alien enemy
for the purpose of being heard in this Court."
He then referred to the " Felicity," 2 Dodson,
381 (Ld. Stowell) ; the " Troija," 1 Spinks, 342 ;

THE LATE SIR SAMUEL EVANS 99
The " Hoop," 1 C. Rob., 196 and 200 ; Story, xiu.
Principles and Practice of Prize Courts.
He continued : "In this case there is nothing
in the affidavit which tends to show that the
hostile character of the owners of the vessel is
suspended in any way, nor is there any suggestion
made by those who claim to appear that there
is anything in the nature of a licence to trade,
or any circumstances whatever differentiating
this alien enemy from any other enemy who
might be affected by the judgment of the Prize
Court. Therefore, on the ground of the in
sufficiency of the affidavit, and on the ground
that there are no special circumstances which
can be shown to entitle the enemy to appear,
I hold that the appearance ought not to stand,
and it will be struck out."
He disallowed the claims of the British share
holders and those in respect of disbursements
and necessaries, and reserved the claim of the
mortgagees for further argument.
On the 16th Sept. 1914, Sir Samuel Evans
delivered an exhaustive judgment dismissing the
claim. The contentions of Counsel for the mortgagees
are thus stated by the President :
" First, that no case in the English Prize
Court had dealt with the claim of a neutral
mortgagee in a sense adverse to the claim now
put forward ; secondly, that the decisions in our
Prize Courts touching liens — for instance the
' Tobago,' 5 C. Rob., 218 ; 1 Eng, P.C, 456—
were not applicable to the cases of mortgages,
on the ground that some kind of ' property '

100 POINTS OF VIEW
XIII. in the ship passed to and vested in mortgages ;
and thirdly, that in any event at the present
day the International Law of Prize should be
extended and applied so as to protect mortgages
held by neutrals in accordance with what he
contended was the policy and principle upon
which the Declaration of Paris was founded."
The President then dealt with the terms of
the mortgage. " With regard to the first two
contentions of Counsel for the claimants, even
if there were no decision of our Prize Courts
dealing with the claim of a mortgagee, a principle
ought to be deducible, and in truth can clearly
be deduced, from cases dealing with liens upon,
or claims in respect of, captured vessels, the
application of which should be decisive of the
case now before the Court.
" But it is not quite accurate to say that our
Prize Courts have never adjudicated upon claiip.s
of a neutral mortgagee."
He cited the " Aina," (No. 1) Spinks, 8, where
it was held that the claim of a neutral mortgagee
of one -third of an enemy ship would not be
entertained. The President then dealt with the authorities
generally. He referred at length to the " Tobago,"
5 C. Rob., 218, where the claim was founded on
a bottomry bond. (Lord Stowell.)
The "Ariel," II Moore P.C, 119. He found
it difficult to see in what respects a claim under
a mortgage differed from that on a bottomry
bond so far as regards the functions of a Prize
Court. He cited a number of authorities which
established that by English law the claim of

THE LATE SIR SAMUEL EVANS 101
a mortgagee ranked after claims in respect of xiii.
bottomry, salvage, and wages.
As to the contention that the mortgagees
had, by virtue of the mortgage, some kind of
"property" in the ship, he referred to the
Merchant Shipping Act, 1894, s. 34, which pro
vided that a mortgagee of a ship would not by
reason of the mortgage be deemed to be the
owner of the ship, etc.
He refused to embark upon an enquiry as to
whether the German law substantially differed
from the English, or what the German law
might be.
He then referred to the " Marianna," 6 C
Rob., 24, where Lord Stowell said : " Captors
are supposed to lay their hands on the gross
tangible property, on which there may be many
just claims outstanding between other parties
which can have no operation as to them. If
such a rule did not exist it would be quite im
possible for captors to know upon what grounds
they were proceeding to make any seizure. The
fairest and most credible documents, declaring
the property to belong to the enemy, would only
serve to mislead them if such documents were
liable to be overruled by liens which could not in
any manner come to their knowledge. It would
be equally impossible for the Court which has to
decide upon the question of property to admit
such considerations. The doctrine of liens depends
very much upon the particular rules of juris
prudence which prevail in different countries.
To decide judicially on such claims would require
of the Court a perfect knowledge of the law of

102 POINTS OF VIEW
XIU. covenant, and the application of that law in all
countries, under all the diversities in which that
law exists. From necessity, therefore, the Court
would be obliged to shut the door against such
discussions, and to decide on the simple title of
property with scarcely any exceptions."
p. 53. The President then said : " The truth is that
capture of enemy vessels at sea during war would
be a hazardous and almost worthless right of
belligerents, if the captors were confronted with
such claims as are put forward in this case, or
if mortgages gave to mortgagees prior rights to
those of the captors."
He then dealt with the claim which Counsel
" boldly pressed " that the Court should extend
the law at the present day so as to protect neutral
mortgages of enemy ships on the ground that
the Law of Nations had advanced in this direction
by and since the Declaration of Paris, 1856. He
then glanced briefly at the way the Declaration
of Paris had been dealt with by the nations,
pointing out how that matter had been dealt
with during the Crimean War ; how the U.S.A.
refused to become a party to it, but gave effect
to those principles during the Civil War with
Spain ; that Spain, although maintaining that she
was not bound by the Declaration, also gave
orders for the observation of its rules ; that
Spain and Mexico, although they refrained for
half a century from acceding to it, had recently
formally acceded.
" This Court accordingly ought to, and will,
regard the Declaration of Paris, not only in the
light of rules binding in the conduct of war, but

THE LATE SIR SAMUEL EVANS 103
as a recognised and acknowledged part of the xiu.
Law of Nations, which alone is the law which this
Court has to administer."
But how can it be used to support the claimants'
case ? It dealt with goods in ships.
He then dealt with the decisions of Prize
Courts since 1856, which he pointed out were
against the contention raised :
The "Hampton," 5 WaU., 372, where the i866.
claim of a mortgagee was disallowed ; " Battle," i867.
6 Wall., 498 ; " Der Turner," a case in the Prize i87o.
Court of France where the claim of a neutral
mortgagee to a German ship was disallowed ; the
" Carlos F. Roses," 177 U.S. Rep., 655, which i90o.
was the case of a claimant who had advanced
monies upon cargo and taken Bills of Lading ; the
"Nigretia," Takahashi, 551 (Claim for salvage); i905.
the " Russia," ib., 55 (Claim for necessaries).
He also held that there was another broad
ground upon which the claims could not succeed,
namely, that the ship was sailing under the
German flag, with papers entitling her to do so,
and navigated by a German master in the com
merce of the German Empire. He referred to
a number of English authorities, also to Hall and
Westlake. He dismissed the claim.

The " Odessa "—The " Cape Corso " 1915,
p. 52;
Headnote 1 B. & C,

The Pledgees of bihs of lading of enemy cargo,
which has been properly captured, have no claim
which is recognised in the Prize Court ; and the

163.

104 POINTS OF VIEW
XIII. fact that the right to sell has accrued to the
pledgees does not make the pledgees into owners.
p. 174. As to the argument presented, that side by
side with the development of commercial dealings
on the lines of those now presented there should
be such an expansion of the law of Prize as would
protect people who, like the claimants, lend money
on the security of cargoes or their biUs of lading,
he said :
" At the outset, two things must be remem
bered : flrst, that this is a Court of law ; and
secondly, that the law to be administered here
is the Law of Nations — that is, the law which is
generally understood and acknowledged to be the
existing law applicable between nations by the
general body of enlightened international legal
opinion. " The decisions of a Court of Law should pro
ceed upon deflned principles. Those principles
have to be applied to ever-varying sets of facts.
But the Court has the function and duty not
merely of deciding individual cases, but of deter
mining them upon principles which shall be a
guide to others as to what their positions and
rights are in the eye of the law.
" In the domain of International Law, in
particular, there is room for the extension of old
doctrines, or the development of new principles,
where there is, or is even likely to be, a general
acceptance of such by civilised nations. Prece
dents down from earlier days should be treated
as guides to lead, and not as shackles to bind.
But the guides must not be lightly deserted or
cast aside."

THE LATE SIR SAMUEL EVANS 105
Having referred to some of the authorities re- xiii.
ferred to in his judgment in the " Marie Glaeser,"
so far as the claims were founded upon the
position of the claimants as pledgees and not
legal owners they could not, in his judgment, be
allowed. He then dealt with the contention that the
claimants had such a beneficial interest in the
goods that their claims should be allowed.
He pointed out the difficulties that would
arise, how the door would be open to all sorts of
enquiries and calculations which had been closed
by his predecessors and by Courts of Prize.
" That persons may be losers during war time 176, 7.
in pecuniary or commercial transactions with
enemy traders is only too obvious. Loss is no
test of legal rights. The claimants have rights
of action against their customers for their full
claims, which they can set in motion either during
'the war or after it. How far they might be
fruitful is no concern of this Court.
" In my judgment, the only safe guiding prin
ciple is to ascertain who are the legal owners of
the cargoes ; and, if the goods are found to be the
property of neutrals or British subjects, to release
them, as was done in the ' Miramichi ' {ante,
p. 137; (1915) p. 71)."

The "Mowe " 1915, p. i;
1 B. & C,
In this case the question arose as to whether
the " Mowe," a German ship, had been captured
at sea, and was liable to condemnation, or in
port, and was only liable to detention under

60.

106 POINTS OF VIEW
XIII. Article 2 of the Vlth Hague Convention of 1907.
The question of the right of an alien enemy to
appear in the Prize Court was dealt with. Sir
Samuel Evans held that the future practice of
the Prize Court should be that any alien enemy,
claiming any protection, privilege, or relief under
any such Convention as the Hague Convention,
should be entitled to appear and argue his claim
before the Court.
He held that, apart from that new practice,
an enemy shipowner who alleges no suspension of
his hostile character, had no right to appear and
argue that his ship was protected from condemna
tion by the Vlth Hague, Art. 2.
In his judgment he flrst dealt with the question
of the right to appear ; he referred to his judg
ment in the " Marie Glaeser " and the cases there
cited. Also to the " Falcon," 6 C Rob., 196 ;
to the forms since the days of Sir James Marriott ;
to the forms in the Prize Court rules.
The principle upon which the Prize Court in
the times of Lord Stowell and Dr. Lushington
proceeded was that no one who was a subject
of the enemy could be a claimant unless under
special circumstances which discharged him from
the character of an enemy, such as is given under
a flag of truce, a cartel, a pass, or some other
act of public authority that placed him under
the King's Peace pro hac vice. Sir Samuel Evans
referred to cases where an enemy had been
allowed to appear to claim the beneflt of the
" days of grace " granted by Order in Council in
the Crimean War ; to similar cases in the Spanish-
American War and in the Russo-Japanese War.

THE LATE SIR SAMUEL EVANS 107
He was satisfied that Lord Stowell and Dr. xiii.
Lushington in their day would not have allowed
the enemy owner to appear and assert a claim
under Article 2 of the Vlth Hague ; there was
no coming pro hac vice within the King's Peace ;
there was no suspension of the hostile character.
He then indicated that in his view the Vlth
Hague was not binding because all the belligerents
had not ratified it. He expressed the opinion
that " it would be in accord with the traditions p. 70
of this country if such steps were taken as may
be necessary to make operative a series of Con
ventions solemnly agreed upon by the pleni
potentiaries of forty-five States or Powers after
most careful deliberation, with the most beneficent
international subjects."
" Dealing with the Convention as a whole, the
Court is faced with the problem of deciding
whether a uniform rule as to the right of an
enemy owner to appear ought to prevail in all
cases of claimants who may be entitled to pro
tection or relief, whether partial or otherwise.
" Mr. Holland argued that this is a matter not
of International Law, but of the practice of this
Court. That view is correct. I think that this
Court has the inherent power of regulating and
prescribing its own practice, unless fettered by
enactment. Lord Stowell from time to time
made rules of practice, and his power to do so
was not questioned." He also referred to O. XLV.
of the Prize Court Rules. " The practice should 72, 3.
conform to sound ideas of what is fair and just.
When a sea of passions rises and rages as a
natural result of such a calamitous series of wars

108 POINTS OF VIEW
XIIL as the present, it behoves a Court of Justice to
preserve a calm and equable attitude in all con
troversies which come before it for decision, not
only where they concern neutrals, but also where
they may affect enemy subjects. In times of
peace the Admiralty Courts of this realm are
appealed to by people of all nationalities who
engage in commerce upon the sea, with a con
fidence that right will be done. So in the un
happy and dire times of war the Court of Prize
as a Court of Justice will, it is hoped, show that
it holds evenly the scales between friend, neutral,
and foe.
"A merchant who is a citizen of an enemy
country would not unnaturally expect that when
the State to which he belongs, and other States
with which it may unhappily be at war, have
bound themselves by formal and solemn Con
ventions dealing with the state of war, like those
formulated at the Hague in 1907, he should have
the benefit of the provisions of such international
compacts. He might equally naturally expect
that he would be heard in cases where his property
or interests were affected, as to the effect and
results of such compacts upon his individual
position. It is to be remembered also that, in
the international commerce of our day, the
ramifications of the shipping business are mani
fold, and others concerned, like underwriters or
insurers, would feel a greater sense of fairness
and security if, through an owner (though he be
an enemy) the case for a seized or captured
vessel were permitted to be independently placed
before the Court.

THE LATE SIR SAMUEL EVANS 109
" For the considerations to which I have ad- xm.
verted and in order to induce and justify a convic-
tion of fairness, as well as to promote just and right
decisions, I deem it fitting, pursuant to powers
which I think the Court possesses, to direct that
the practice of the Court shall ,be that whenever
an alien enemy conceived that he is entitled to
any protection, privilege, or relief under any of
the Hague Conventions of 1907, he shall be
entitled to appear as a claimant and to argue
his claim before this Court. The grounds of his
claim should be stated in the affidavit to lead to
appearance which is required to be filled by Order
III. Rule 5, of the Prize Court Rules, 1914."

1 B. & C,
75.

The " Roumanian " 1915,
P-26;
The question in this case was whether a cargo
of oil which had been discharged into tanks at
Purfleet was subject to seizure as Prize.
The judgment contains an interesting examina
tion of the jurisdiction of the Prize Court; the
distinction between seizure at sea and on land.
It is distinguished by much learning.
It cannot, however, be conveniently con
densed. The " Zamora " igie,
p. 27;
Summons by the Procurator - General under 1 ^3 */^-^
O. XXIX. of the Prize Court Rules as amended
by Order in Council of the 29th April 1915, that
the War Department be at liberty to requisition
400 tons of copper said to belong to neutrals.
The claimants contended that the substantive

110 POINTS OF VIEW
xiii. law administered by the Prize Court could not
be changed by the exercise of the Royal Pre
rogative ; that the Act of Parliament which
authorised the making of rules as to practice and
procedure did not authorise the making of changes
in the substantive law ; that the Law of Nations
did not recognise any such right to compulsory
purchase of neutral property as was claimed by
the Crown.
The claimants in substance contended that
the Crown had no power by the O. in C of the
29th April 1915, to alter the substantive law
administered by the Prize Court so as to enable
the Court to make an order for the requisition
of neutral property brought in as Prize.
319. Sir Samuel Evans was clearly of opinion that
he had jurisdiction to make the order asked for,
and that O. in C was a valid order and he made
the order prayed forthwith ; on a subsequent
date he delivered judgment at length.
He said : " The Court has inherent powers to
deal with the property brought within its juris
diction apart from any rule ; it has power to
order the sale of perishable goods, etc. In my
view persons who lay claim to property captured
or seized have no right by any rule of LL. to
demand that the property should be preserved
in specie until the final decree determines whether
it is to be released or to be condemned. Prize
Courts have always acted on the principle that
the capture is lawful until claimants established
the contrary.
" If the claimants have no legal right to have
the property delivered up in specie, it matters

THE LATE SIR SAMUEL EVANS 111
not whether the property is sold for good reasons, xiii.
and so converted into money, or is requisitioned
by the Crown (instead of going through the form
of sale) upon an undertaking to pay the appraised
value into Court.
" In my view the Order in Council deals only
with a matter affecting the practice and procedure
of the Court. If so it had the force of an Act of
Parliament. If it went beyond practice and pro
cedure it had the force of an Order in Council."
It was within the power and prerogative of
the Crown to make an order giving the right
to requisition neutral property which might be
of use to the Crown as a belligerent. He referred
to a number of cases in Hay and Marriott's
Reports and to the " Haabet," 2 C Rob., 174,
where Lord Stowell dealt with the right of a
belligerent to take possession of foodstuffs.
As to the contention that to give effect to
such an Order in Council was to act in viola
tion of the Law of Nations, he referred to the
decisions of other countries, — ^the " St. Lawrence
and Cargo," 2 Gall., 19, and other American
decisions, including the " Memphis and Cargo,"
Blatchford, 202.
In view of these cases it could not, in his
opinion, be possible to maintain that the requisi
tion by the State of captured property which was
provided for by O. XXIX. was a violation of an
acknowledged or settled principle of rule of the
Law of Nations.
It was not, therefore, in his opinion, necessary
to enquire whether the Prize Court was bound to
obey an Order in Council which might run contrary

112 POINTS OF VIEW
XIII. to the acknowledged Law of Nations. " If that
question should arise, I am humbly content to
assume the standpoint of Lord Stowell in the case
of ' Fox,' Edw., 312, in which he had to deal with
the Orders in Council which were given by way
of reprisal after the celebrated Berlin and Milan
decrees of Napoleon."
He quoted from the judgment at length.
He referred to the judgment of Story J. in
Maisonnaire v. Keating ; to the judgment of
331. Betts J. in the " Nassau," Blatchford, 198 : " I
make bold to express the hope and belief that
the nations of the world need not be apprehensive
that Orders in Council will emanate from the
Government of this country in such violation of
acknowledged Law of Nations as to make it con
ceivable that our prize tribunals, holding the Law
of Nations in reverence, would feel called upon to
disregard and refuse obedience to the provisions
of such Orders." I have elsewhere indicated
my own individual preference for the President's
treatment of this delicate issue to that adopted
by the Judicial Committee. " Victrix causa dels
placuit sed victa Catoni."

1B.&C., The "Kim"
405. In this case Sir Samuel Evans dealt with the
doctrine of " continuous voyage," which was
held to have become part of the Law of Nations.
The rules of evidence were also dealt with, and
he held that the Court would recognise well-
known facts which had come to light in other
cases. Held that captors need only prove a

THE LATE SIR SAMUEL EVANS 113
highly probable military or Government des- xm.
tination. 
That it was not incumbent on them to prove
an intention on the part of shippers at the com
mencement of the voyage of despatching contra
band goods to the enemy ; if it was reasonably
certain that the shippers knew the real ultimate
hostile destination, whenever the project may
have been conceived, a belligerent had a right to
seize and confiscate.
The shipment of goods consigned " to order "
without naming a consignee was treated as a
circumstance of suspicion.
He dealt with the doctrine of " infection,"
according to which contraband article contamin
ated any goods on board the ship belonging to
the same owners.
With concealment and misdescription.
With the validity of the Orders in Council of
Aug. 20 and Oct. 29, 1914, which put into force
subject to certain modifications the Declaration
of London. The goods seized were laden in the autumn
of 1914 on board four ships for carriage from
U.S.A. to Copenhagen ; they consisted for the
most part of foodstuffs, hog products. There
were some two dozen claimants.
Judgment. p. 436;
Having stated the names of the ships, the
cargoes, and dates of sailing, he made a
general review of the situation which led up to
the despatch of the four ships with their cargoes
to a Danish port.
Apart from the danger of mines, it was open
VOL. II I

114 POINTS OF VIEW
XIII. to neutral ships to carry cargoes to German
ports subject only to the risk of capture. But
the trade of neutrals, other than Scandinavian
countries and Holland, with German ports had
become so difficult as to become practically im
possible. It was not unnatural that it should be
deflected to Scandinavian countries and Holland.
He dealt with the figures :
Total weight of cargoes . 73,237,000 lbs.
Total claims . . . 32,312,000 lbs.
He pointed out that there was 13 times as much
lard on the four vessels as the annual import
into Denmark before the war.
The import of lard from U.S.A. into Scandi
navia in Oct. and Nov. 1914 was nearly 60 times
the amount imported in the same months in 1913.
These figures made it practically certain that
the lard on the four vessels was intended for
Germany, He dealt with the claims of five large American
meat packers, amounting to 23,276,584 lbs.
He then made an exhaustive examination of
the evidence relating to each claim, drawing
particular attention to the absence of evidence
as to matters with regard to which evidence
might be expected to be given.
He then dealt with the general character of
the cargoes and the evidence as to their useful
ness for military purposes.
He found that Lubeck, Stettin, and Hamburg
might properly be regarded as bases of supply
for the enemy, and that the cargoes destined for
these ports might on that simple ground be con-

THE LATE SIR SAMUEL EVANS 115
demned as Prize. He preferred to deal with the xm.
case'^on broader grounds.
Before stating the inferences and conclusions P-478.
of fact, it will be convenient to investigate and
ascertain the legal principles which are to be
applied according to International Law, in view
of the state of things as they were in 1914.
" While the guiding principles must be followed,
it is a truism to say that International Law, in
order to be adequate as well as just, must have
regard to the circumstances of the times, including
' the circumstances arising out of the particular
situation of the war, or the condition of the
parties engaged in it.' "
He then dealt with the doctrine of " con
tinuous voyage." This was first applied by the
English Prize Court to unlawful trade. It was
applied and extended by the U.S.A. to the
carriage of contraband in the Civil War.
The "Peterhoff," 5 Wah., 28; the "Stephen
Hart," Blatch., 387; the "Bermuda," 3 Wall.,
514 ; the " Springbok," 5 WaU., 1.
It was asserted by Lord Salisbury in the South
African War.
He dealt with the compromise in the Declara
tion of London. He had no hesitation in pro
nouncing that the doctrine had become part of
the Law of Nations at the commencement of the
present war.
As to the real destination of a cargo, one of
the chief tests is whether it was consigned to a
neutral port, to be there delivered, for the purpose
of being incorporated into the common stock of
the country.

116 POINTS OF VIEW
XIU. The " WiUiam," 5 C Rob,, 385 ; the " Ber-
muda," 3 Wall., 514 ubi sup.
Another circumstance was the consignment
" to order " without naming any consignee.
He had no hesitation in coming to the con
clusion that the goods, other than the claims
which he allowed, were not destined for the
consumption or use in Denmark or intended to
be incorporated in the common stock of that
country.
p. 483. "The second branch of the case raises the
question whether the goods were destined for the
use of the German Government or departments,
or for the military use of the troops, or other
persons actually engaged in warlike operations,
or should be presumed to be so destined in the
circumstances." He then dealt with the Orders in Council of
Aug. 20 and Oct. 29, 1914,^ and the arguments
founded upon them. He held that all the goods
on the " Kim," which sailed after the 29th
October, were liable to confiscation under the
provisions of the Order in Council of that date.
Apart from the Orders in Council, he came to
the conclusion that the goods were intended for
military use,
" Now as to the question of proof of intention
on the part of the shippers,"
It was argued that the Crown, as captors,
ought to show that there was an original intention
by the shippers to supply goods to the enemy
Governments or the armed forces at the inception
1 These Orders applied with modifications the provisions of the
Declaration of London.

THE LATE SIR SAMUEL EVANS 117
of the voyage as one complete commercial trans- xm.
action, evidenced by a contract of sale or some-
thing equivalent to it.^
"It is not necessary that an intention at the
commencement of the voyage should be estab
lished by the captors either absolutely or by
inference." The " Bermuda," the " William."
Captors must prove facts from which a reason
able inference of hostile destination can be
drawn. The facts of the case more than justify the
" highly probable destination " spoken of by
Lord Stowell. He referred to an opinion ex
pressed by eminent American lawyers.
" In a war in which the nation is in arms,
where every able-bodied man is under arms and
is performing military duty, and where the non-
combatant population is organised so as to sup
port the soldiers in the field, it seems likely that
belligerents will be inclined to consider destina
tion to the enemy country as sufficient, even in
the case of conditional contraband, especially if
the Government of the enemy possesses and exer
cises the right of confiscating or appropriating
to naval or military uses the property of its
citizens or subjects of service to the armies in
the field."
To a decision in the Hamburg Prize Court,
the " Maria."
He also held that, on the " doctrine of infec
tion," as the substantial portion of the goods
^ This was the standpoint taken up by G. B. at the London Con
ference.

J.
p-

182.

3B

.&C.

P-

181.

B.

&€.,

P-

182.

118 POINTS OF VIEW
XIII. was destined for military use, the whole would be
contaminated. He allowed seven claims and condemned the
rest. The " Leonora "
" An Order in Council of February 16, 1917,
after reciting that a German memorandum of
February 1, 1917 (aimed at preventing all sea
traffic with Great Britain and her allies), rendered
it necessary for further measures to be adopted
to prevent commodities of any kind reaching or
leaving enemy countries, provided that vessels
encountered at sea on their way to or from ports
in neutral countries affording means of access to
enemy territory would, until the contrary was
established, be deemed to be carrying goods with
an enemy destination or of enemy origin, and
that such goods would be subject to condemnation.
The vessels carrying them would also be subject to
condemnation unless they called at an appointed
British or Allied port for the examination of the
cargo. No port or ports had in fact been ap
pointed under this Order."
A Dutch steamship bound direct from Rotter
dam to Stockholm and her cargo of coal, the
produce of Belgian collieries in German occupa
tion, were seized as prize off the Dutch coast
under the authority of this Order — Held : (a)
That the order was not contrary to the Law of
Nations, and, having regard to all the circum
stances, did not entail unreasonable consequences
on neutrals. (&) That the fact that no British
or Allied port had been appointed at which the

THE LATE SIR SAMUEL EVANS 119
vessel might call for examination did not in- xm.
validate the Order ; the proviso was a relaxation
in favour of neutral shipowners who wished to
show their bona fides, and was in no sense a
condition precedent to the enforcement of the
substantive part of the Order, (c) That the coal
was of enemy origin within the meaning of the
Order, (d) Accordingly, that the ship and cargo
w^ere subject to condemnation.
Judgment. After stating the facts, he said : b. & c,
" The case for the Crown was that the ' Leonora ' ^' ^^^'
was carrying goods of enemy origin from a port
in a neutral country affording means of access to
the enemy territory to a port in a neutral country
also affording access to enemy territory, and was
therefore liable to capture and condemnation in
respect of the carriage of such goods under the
Order in Council of February 16, 1917 ; that the
goods were also liable to condemnation under
such order."
The answer of the claimants was : The Order
was illegal and invalid as against neutrals ; and
therefore the capture was wrongful, and neither
the vessel nor the goods should be condemned.
The basis of the Order in Council was retalia
tion, and its object to restrict commerce of the
enemy. He dealt with the circumstances which led
up to the issue of the retaliatory order of March
11, 1915.
The naval measures taken by Germany.
That seizure had been held to be valid in the
" Stigstad." He then dealt with naval measures taken by

120 POINTS OF VIEW
XIIL Germany after the first order, the submarine
warfare, and so on.
3 B. & c, He summarised the claimants' contentions.
He then considered the questions that arose :
(1) Whether the Order in Council did or did
not comply with the guiding principles of the Law
of Nations ?
(2) Are there any precedents or decisions in
favour of or against its validity ?
(3) Is there any authority for or against it ?
Pp. 202 to 226 should be read ; they cannot con
veniently be summarised for the present purpose.
He then dealt with cases decided on the famous
p. 229. Order in Council following on the Berlin and Milan
Decree. For the reasons given, he was of opinion that
in the circumstances existing in February 1917,
the recognised guiding principles of International
Law justified an Order of retaliation against the
enemy with the object of curtailing or throttling
his trade, although it prescribed measures outside
and beyond the ordinary rules of blockade ; that
there were good precedents and authority for such
an Order ; and that if, in view of the whole situa
tion between the belligerents, means for carrying
it into effect are not excessive or unreasonable
against the enemy, the consequential results to
neutrals desiring or willing to trade with the
enemy give such neutrals no right to complain,
or to claim compensation. After considering
other points in the case (see Headnote), he con
demned both ship and cargo.
Such was the Judge whom we most unhappily
lost before the war ended. But we hardly lost

THE LATE SIR SAMUEL EVANS 121
him before his work was done. The present xm.
Master of the Rolls, who succeeded him as
President, most generously said to me, after six
months' experience of Prize, and with a frankness
which one, who like himself is universally admitted
to be a consummate judge, can well afford to
employ : " There was very little for me to do
when I went there. The late President had
lucidly and logically evolved all the principles.
It only remained to apply them."
Before his death I was authorised by Mr.
Asquith, then Prime Minister, in recognition of
the President's extraordinary services, to inform
him that he proposed to recommend him to
the King for the honour of a peerage. He was
touched and pleased, but, for private reasons
on which it is not now necessary to enlarge,
he was unable to accept this distinction. But
he told me that he did most dearly covet one
raark of public recognition to which he thought
it raight be in my power to contribute. He
explained that ever since he began his Prize
work it had been his hope that the University
of Oxford would make him an honorary D.C.L.
It seemed to me so certain that the University
authorities would rejoice to show honour to the
greatest judge of international law since Stowell
that I gave him raore encouragement than
the event warranted. I immediately saw Sir
Erie Richards, K.C, the learned Professor of
International Law at Oxford University, hiraself
a busy leader in the President's Court, and pro
posed the raatter to him. He warmly agreed,
and undertook to place the affair before the

122 POINTS OF VIEW
XIII. University authorities. He was, however, in-
credible as it raay seem, quite unsuccessful ; for
apparently those to whom these raatters were
committed had resolved to suspend the bestowal
of the distinction during the War. I believe,
though I ara not sure, that they adraitted excep
tions to this rule. If I ara right, no exception
thereto could have been raore brilliantly defended
than the one I now discuss, I reported the
result to Sir Samuel, telling him that I was sure
his name would be on the first post-war list. He
whirasically and rather strangely (for he was not
old) replied, " Why, I may be dead then." But
I could see that he was very deeply disappointed.
I profoundly regret the answer which was
given to an indication of hope which was known
to have proceeded from Sir Samuel Evans hira
self ; not that the distinction, great as it is, could
have conferred any additional reputation upon
the President, but because his Doctorate would
have shed fresh lustre on a School devoted to
the science of Civil Law.
Of his death there is little that need be told
except that he becarae aware that he was a
dooraed raan sorae thirty-six hours before he
died. He received the news with unruffled seren
ity, though he was a raan who dearly loved
life ; set hiraself for raany hours with precise
detachraent to arrange his earthly affairs ; and
then died in a raanner very becoraing to a brave
Welsh gentleraan.
I have said little of the private qualities of
the late President. But no more attractive
personality for thirty years flashed his sword

THE LATE SIR SAMUEL EVANS 123
in Parliaraentary debate, exchanged quips and xm.
pleasantries in the robing-roora, or enlivened by
a penetrating wit the aridity of forensic contro
versy. In social life he was altogether delight
ful. No lighter-hearted, no raore jocund cora
panion ever sat down to a pleasant table. Dr.
Johnson once said (though I cannot, writing
at sea, find the precise passage, and raay not
exactly recall the words), " A man may very
well be grave in his study in the raorning and
cheerful at the tavern in the afternoon." If you
substitute the social life which has replaced the
tavern, these words raight alraost afford a sura
raary of the President's philosophy of life. Great
judges develop frora very strangely contrasted
soils. Lord Cairns and Lord Selborne, two of the
raore illustrious of ray predecessors, coraraenced the
day's labours betiraes by prayer raeetings at their
houses, which were largely attended by learned
counsel who could perhaps have been persuaded
that it was their duty to accept county court judge
ships. It is not recorded of the late President that
his early morning activities were precisely of this
class. But he none the less belongs to the high
company of the iraraortals who have staraped
their individuality for all tirae upon the raajestic
fabric of British law. And if a warra and tender
heart, an unswerving integrity of conduct, and
a lofty conception of friendship, are accounted
acceptable weights in the scales by which we
appraise ethical quality, Sara Evans raust be
pronounced a good as well as a distinguished
man.

XIV
NEIL PRIMROSE
xrv. Neil Primrose was bom on the 14th December
1882. He was the second son of Lord Rosebery,
and was brought up alraost from childhood in
a mixed atmosphere of politics and sport. He
retained during his short life a passion for both
these occupations.
He was educated at Eton, but left a little
early in order to vary and complete his educa
tion on the Continent. Those who knew hira well
before and after this year of absence traced to its
influence upon him a certain easy and graceful
unconventionality which was one of his greatest
charms. He went to Oxford in his eighteenth year, and
I suspect that he spent there the happiest years
of his life. At least I reraeraber hira telling rae
in France, when we were talking of old things,
that though he had liked Eton much he had
liked Oxford raore.
His life at the University was by no means
studious. Unlike his brilliant and ill-fated con
temporary, Raymond Asquith, he did not affect
the Union ; still less atterapt to flll any office
there. Little serious acaderaic work was necessary
124

NEIL PRIMROSE 125
in the case of so clever a raan, who never raade xiv.
acaderaic distinction a goal. And so Neil Prira-
rose went through his short life at New College,
hunting and racing and jesting : keeping one
eye upon the party politics of the day ; reading
raore than raost people supposed of general
literature ; and forraing some of those dear and
romantic friendships which cut so deep into his
life, and all of which, so far as I know, stayed
with him to the end. It was in these years that
the friendship between hiraself and Thoraas Agar
Robartes flrst began. They were brothers at
Oxford ; they were brothers in the House of
Coraraons ; they were to die brother-like in the
same cause. Very near to him, too, in these days
were the ties of affection and friendship which
bound him to his Rothschild cousins. There
were few raore familiar sights at Epsom or New
market than that of Neil Primrose and James de
Rothschild. Primrose left Oxford in 1904, and for sorae
tirae, though never with violent devotion, began
to increase the collateral interest which he had
always taken in political people and political
topics. But his main occupation at this time
was simply to live, and for a young man, rich,
well born, fashionable, and charming, raerely to
live in pre-war England was a most agreeable
occupation. In politics, as became the son of Lord Rosebery,
he was a Liberal. And frora the tirae when he
flrst took any serious interest in politics, he was
a thorough-going and convinced Liberal. He
became, indeed, in the phrase of the day, a far

126 POINTS OF VIEW
XIV. more genuine Radical than the great majority of
those who were to sit with him in the House of
Coraraons. He genuinely believed in the doctrines
of the Manchester School. He derided war as
ridiculous, and so soon carae to believe that it
was also irapossible. He was on principle pacifist;
disbelieved to the end in the Gerraan menace ;
and would probably have contested the entry of
this country into war if the invasion of Belgium
had not provided a reason consistent with Radical
principle for so staggering and unwelcome an
adventure. The relations between Neil and his distinguished
father were araong the raost touching in a life
full of idealised love. The two raen were indeed
raore like brothers in their easy and affectionate
intiraacy than like father and son. It is evident
that the young man owed much to his association
with one so witty, so brilliant, and so cultivated.
And this makes it all the raore surprising that
frora the very outset Prirarose thought for hiraself
in politics, and deflnitely, if gradually, assumed an
individual quality and standpoint which were by
no means, either in principle or in detail, those
of Lord Rosebery. On one point, however, he
followed his father's exaraple by undertaking an
active part in the proceedings of the London
County Council. He became an alderman of
that body in the year 1909, and continued to
sustain the duties of that office for four years.
Meanwhile, grave and exciting crises were arising
in the larger theatre of national politics. The
People's Budget, with its ludicrous land taxes,
whose coraplete failure and ultiraate repeal lay

NEIL PRIMROSE 127
still in the womb of time, was exciting a passionate xiv.
enthusiasm araong raany credulous sections of
society, who pathetically discerned in thera the
last word of social regeneration. Lord Rosebery,
clear-sighted and experienced, thundered against
it in Scotland in a speech of burning and eloquent
declaraation. This oration, unfortunately, alike
for thera and their followers, convinced the
sirapler-rainded among the leaders of the Unionist
party that the quarrel was good enough to justify
the House of Lords in throwing out a Budget
which had only to be passed for its flagrant
follies to manifest themselves. Had that Budget
been then passed, it is as certain as anything in
politics can be that in twelve months the Unionist
party would have been returned to power, and
could within a reasonable period have torn up
the foolish land sections with the approval of a
thoroughly disillusioned people. But though, as
I have said, the speech converted the Tory leaders
it did not convert Neil Prirarose, and consequently
the angle from which father and son respectively
conteraplated the years of crisis that supervened
grew raore and raore divergent. But this fact
raade not the slightest difference to the singular
love and affection by which the two raen were
united. Neil's enthusiasra, his rapidly acquired
skill and huraour as a speaker, and his general
attractiveness as a Parliaraentary candidate,
carried hira into Parliaraent in the flrst election
of 1910 as representative of the Wisbech Division
of Carabridge. I reraeraber well being intro
duced to hira by Mr. Winston ChurchiU in the
sraoke-roora of the House of Coraraons. On this

128 POINTS OF VIEW
XIV. occasion, as always in the House of Comraons,
he was with his friend Robartes, and as I listened
to the entertaining talk of these delightful young
raen, I reraeraber thinking to rayself that they
were far raore agreeable instruraents than any
we had a right to expect for the purpose of carry
ing out a post-election policy which evidently
raust be extreraely disagreeable to ourselves.
Thereafter I constantly saw Neil Prirarose
in the House of Coraraons and elsewhere. We
becarae close friends. He was a subaltern in
the Bucks Yeoraanry, as I was in the Oxford
shire, and our two regiments with the Berkshire
formed the Brigade. And so, as ' I look back,
raany pleasant memories crowd on my mind with
which I cannot overload this short narrative. The
political alliance and activities of Prirarose and
Robartes always amused me; and I have sorae
reason for supposing that they also araused thera
selves. But the business was well and not ineffect
ively done. Their first campaign was against my
predecessor, Lord Loreburn, for his delinquencies
— real or supposed — in the appointment of raagis
trates. The case raade was that the Tories had
appointed far too raany of their nuraber to the
Bench under the genial sway of the venerable
but slightly partial Halsbury ; and that Lord
Loreburn, instead of redressing the balance, was
combining the practice of his predecessor with
the apologetic style of Pecksniff. And so with
varying fortunes the quarrel raged, until finally,
to the lasting ease of all who sit upon the Wool
sack, the compromise was reached which gave the
Lord Chancellor of the day an Advisory Com-

NEIL PRIMROSE 129
raittee, available for his guidance, but not author- xiv.
ised to control his discretion, in every district.
The next great quarrel which was undertaken
sprang frora the proposal to exclude frora the
Coronation Oath certain well-known passages
highly offensive to His Majesty's Roman Cathohc
subjects. This proposal found bitter opponents
in the two friends. They carried their opposi
tion to the provinces, and, at a large meeting at
Glasgow, Agar Robartes passionately exclaimed :
" I told ray constituents at the last election
that the issue was between peers and people.
Fool that I was, I forgot the Pope."
The allies were not so successful in this quarrel,
and the objectionable passage was with alraost
general consent corrected. There were of course
in the years 1910-1914 raore serious though less
notorious activities, and when the War broke
out Neil was very definitely among the selected
number of fortunate young men likely to obtain
Under-Secretaryships in the infancy of their
Parliaraentary careers.
Then carae the War with all its stern realities,
crushing and shattering many beliefs to which
Primrose, in spite of a levity of manner which
was soraetiraes assuraed, raost passionately and
sincerely clung. Nor was the lesson learnt at
once. He wrote a letter to the Daily Chronicle
denying that there was any justification for our
entry into the War on one day. On the next,
the published facts of the invasion of Belgiura
dispelled the last of his hesitations. On the
third day he raobilised as a Troop Officer in his
regiraent and stayed with them for some weeks,
VOL. II K

130 POINTS OF VIEW
XIV. until in Septeraber of the sarae year Lord Kitchener,
who had a very high opinion of his ability, sent
hira to do some staff work in France with a
distinct proraise that, whenever his regiraent was
ordered on active service, he should be given
iraraediate leave to rejoin it. For the next few
raonths I saw hira constantly. It is to this
period of his life that our real intiraacy belongs,
and when in the spring of 1915 he was suraraoned
horae to becorae Under-Secretary for Foreign
Affairs, he wrote me a letter of which I ara glad
to recall the sentence : " Our friendship in the
last few raonths has deepened and strengthened.
It has becorae a great thing in my life. Tirae
can never congeal it."
The forraation of the first Coalition Govern
raent substituted Lord Robert Cecil for Primrose
at the Foreign Office, and at the sarae raoment
the employment of his regiment in the East left
hira with a clear course. He joined his regiment,
served with great distinction in the Senussi
campaign, and was awarded the Military Cross.
It becarae evident in Septeraber 1916 that the
carapaign was over for the time being, and, as
an alternative to inaction in the Libyan Desert,
the invitation to become Military Secretary to
the Minister of Munitions was welcome. He held
this office from Septeraber to Deceraber 1916.
By the latter date the differences between Mr.
Asquith and Mr. Lloyd George had culrainated
in the substitution of the latter for the forraer,
and Neil Prirarose was urgently requested by the
new Prirae Minister to undertake the raost difficult
duty of Patronage Secretary. His friendship and

NEIL PRIMROSE 131
admiration for Mr. Lloyd George raade the task xiv.
easy, but there was a prospect of the regiraent
becoming engaged again, and Prirarose raade it
plain that he did not intend to be away frora
active service longer than was absolutely necessary
to give the new regirae a start. At the raoraent,
as indeed for long afterwards, the bitterness
between the two sections of Liberals was extreme,
and Neil's tact, popularity, and good temper
were an asset of incomparable value to the
new Government. But in May 1917 he resigned
his position as Parliaraentary Secretary to the
Treasury and prepared to rejoin his regiraent,
which was then organising for the advance on
Jerusalera. His old friend. Colonel Cripps, D.S.O.,
who was then coraraanding the regiraent, writes
to rae of him : "I cannot describe to you what
an extraordinary effect his presence and personality
had upon the officers and raen." He becarae
Squadron Coraraander. Towards the end of
October the signs of activity raultiplied, and the
carapaign began under AUenby, which was not
to end until Jerusalera had fallen before His
Majesty's troops. The Bucks Yeoraanry was
incessantly raoving, and was engaged in many
rainor skirraishes. But it was not untU Noveraber
13 that it took part in any considerable battle.
Neil coraraanded his squadron in the raounted
charge at El Mughar, which was singularly success
ful. He was warraly praised by his Coraraanding
Officer, but his happiness in the day's achieve-
raent was corapletely raarred by the death of his
cousin, Evelyn Rothschild, who was wounded in
the same charge and succumbed later.

132 POINTS OF VIEW
XIV. On Noveraber 15, the regiment again took
part in an attack on Abu Shushuh. Neil's was
the leading squadron ; and the Bucks was the
leading regiment. Under very heavy machine-
gun fire, he was compelled to disraount his squadron
to raake an advance on foot over sorae very bad
ground. He was standing up coolly giving orders
to his men when he was shot through the head
by machine-gun fire at very close range.
His Coraraanding Officer wrote of hira : " Much
of the success of battle was due to the initiative
of Major Prirarose during the first phases of the
attack. He would raost certainly have been
recoraraended for the D.S.O. had he survived."
I have attempted a very brief and imperfect
summary of the life of a most vivid personality.
He had only been in the House of Commons for
four years when the War broke out ; and it is
therefore hardly possible to atterapt a dograatic
estiraate of his political, and still less of his
Parliaraentary, gifts. It is, however, sufficient
to say that, at the end of those four years, he
had raost deeply impressed by his power and his
intelligence the ablest statesraen of this country.
Who can define that subtle quality which leaves
a raark and a raeraory ? I raet hira often in
very distinguished corapany. I never raet hira
in any corapany in the conversation of which he
was not an easy and graceful equal. Mr. Lloyd
George, a considerable judge of raen, selected
hira frora all his Liberal adherents to discharge
the infinitely delicate task of creating the organisa
tion of a new Liberal party. I suspect that Mr.
Lloyd George was under no delusions as to the

NEIL PRIMROSE 133
difficulty of this task, and I know with certainty xiv.
that Neil Prirarose was under none. Surely a '
greater comphraent was never paid to a young
raan of fashion who had only been four years in
the House of Coraraons. The qualities of Patron
age Secretary, where the duty is tactfully and
efficiently discharged, raust be of the highest
possible order. He is a servant of his chief, but
he raust be at the Sarae tirae his eyes and his
ears. I ara even bold enough to think that no
one can be a perfect Patronage Secretary who is
not in the first place utterly indifferent as to
whether he continues to fill that office or not,
and who is not in the second place authorised to
discuss the highest raatters with his chief upon
a basis of alraost equal responsibility. Such at
least, as I can assert frora my own knowledge,
was the actual relationship between the young
captain of the Bucks Yeomanry and the greatest
of the War Ministers who have guided the destinies
of this country since Chathara. Nor was Mr.
Lloyd George alone in his estiraate of the capacity
of Primrose. Mr. Winston Churchill was among
the most devoted of his friends, and I have reason
to know that the value and the affection which
he had for him were not less than those of him
who writes this imperfect raeraorial. Mr. Asquith,
too, frora whose political fortunes he had un
willingly but quite irrevocably dissociated hira
self, uttered in the House of Coraraons a noble
and generous tribute on the occasion of his death.
" Only those who knew him well, as I knew
him well, can realise how rauch golden proraise
lies buried in the grave of Neil Prirarose."

134 POINTS OF VIEW
XIV. A few words of a general kind may be added
about this very remarkable young man. He was
of a very quick intelligence. His conclusions were
as often the result of intuition as of reason, but on
matters within his own province they were very
seldom wrong. He was a most polished man of
the world — perhaps the most polished man of
the world of his own generation. His conversa
tion was light, witty, and humorous, but never
theless there generally lay behind its flippant
presentation a point of view, and a degree of
conviction, which were serious in the French
sense of that abused adjective. To sorae extent
he was a cynic : to a greater extent he affected
cynicisra. He was in truth a cynic with a warra
heart and a cold tongue. No one in the world
of our day was half as good company. He would
have delighted Dr. Johnson as Topham Beauclerk
delighted hira. I can iraagine hira playing up
to that wise but difficult old raan, and I can see
the thaw melting the frost. I had the chance
of observing him in raany corapanies, sorae grave,
sorae very boheraian. In neither had any one so
exactly appraised the atraosphere as Neil Prim
rose : to neither was the contribution of any one
else so intuitive, so spontaneous, so appropriate.
And I must add a flnal tribute in a graver
key. The friendships of his life were the passions
of his life. I suspect, indeed, that he found more
in friendship, as he certainly gave more to friend
ship, than any one of our day and generation.
Many men whose like we cannot hope to see again
perished in the Great War. Neil Primrose died
with a bullet through his head steadying and

NEIL PRIMROSE 135
reaniraating his troops : he fell araid the general xiv.
raourning of those who knew and valued and
loved hira : nulli flebilior quam mihi.
Piety iraposes upon the corapany of his friends
a siraple task — never to forget hira. In discharg
ing it we shall constantly recall that the corapany,
of which he was one, raourns the death of a gay,
brilliant, and affectionate friend.

XV
JACK SCOTT
XV. A VERY large group of devoted friends will learn
with deep sense of personal bereaveraent of the
untiraely death of the young officer who, since
his Oxford days, has been universally known as
Jack Scott.
A fortnight ago he took the first holiday which
he had allowed hiraself for flfteen months. He
went with a number of friends to St. Moritz.
Until the end of his visit he appeared to be in
all his usual robust strength. A day or two before
he left, he was seized with a cold of an ordinary
kind causing no anxiety. He stayed on the way
home for a day or two in Paris, where the cold
developed with a slight but not serious bronchial
menace. A little unwisely, but taking a risk
which many strong raen have often taken without
untoward consequence, he decided to cross to
England. His condition on the voyage became
worse. On his arrival, the case was diagnosed as
one of double pneumonia, and in four days he was
dead. The narae of this distinguished officer was
alraost, if not quite, unknown to the general
public, and yet there was in the British Array
136

JACK SCOTT 137
no more arresting and remarkable flgure. I flrst xv.
met hira fifteen years ago, when he was an
undergraduate at Merton CoUege and Master of
the University Draghounds. I never saw any
one, in ray long experience of the hunting field,
ride with a resolution and fearlessness so cora
plete. He stamped himself even then upon my
mind as one who had no conception whatever of
the raeaning or pressure of fear. Acquaintance
ripened rapidly into friendship, and fuller know
ledge of his practice in the hunting field confirraed
ray clear conviction that he was the bravest raan
I ever saw riding to hounds.
He intended to go to the Bar, and in due
course became a pupil in ray charabers. He
showed great industry and ability without any
special proraise of that undefinable corabination
of qualities which is the soil of great forensic
success. His career and his greatness were to
lie in a very different field.
In August 1914 he was a junior officer in the
Sussex Yeomanry, consumed, as raany young
officers at that raoraent detained in England
were, with a burning desire to undertake active
service at the earliest raoraent. He had never
in his life been in an aeroplane ; he was over
thirty years old ; but the air, and the prospect
of air fighting, raade an irresistible appeal to his
adventurous nature. Quite early in the War he
joined the R.A.F., and thereafter coraraenced an
Odyssey of hazard, adventure, and terrible acci
dents which can hardly have been exceeded in
the annals of the air. On one occasion before he
went to France his raachine collapsed when he

138 POINTS OF VIEW
XV. was 2000 feet in the air. During the terrible fall
that followed he was working and trying and test
ing, and when some 60 feet frora the ground he
regained a degree of control which saved his life
but left him permanently a cripple. He lay for
many months in hospital, during which the doctors
could give no assurance that he would ever leave
his bed. An immensely strong constitution as
serted itself, and he was later found working on
crutches at the R.A.F. staff at De Keyser's Hotel.
As soon as he became strong enough to walk
unaided, he began again to strain every influence
he possessed to obtain leave to go on active
service in France. " To fight in an aeroplane,"
he said, " is the one thing a lame man can do
as well as another." His own doctor told rae
that he was quite unfit to go, and without daring
to inform Jack Scott of what I was doing, I went
to General Henderson and placed the medical
report before him. For the moment I succeeded,
but a month later he carae round to our house,
the embodiment of gaiety, and told us he was
under orders to proceed to France in the following
week as a Flight Coraraander. Two and a half
raonths later he was appointed to the coramand
of the 60th Squadron.
It is not an exaggeration to say that in a
service manned by heroes he was universally
adraitted within three raonths to be one of the
most brilliant and daring. He carried, indeed,
to the combats of the air the chivalry of Athos
and the Gascon audacity of d'Artagnan. Major
Bishop, V.C, was under his command in the
squadron, and he hiraself told me at a later period

JACK SCOTT 139
that for cool and unshakable courage he never xv.
in his experience met Scott's equal. Readers of
Bishop's book will reraember the part played by
the " Major " in one of its raost thriUing episodes.
The " Major " was Jack Scott. He had escape
after escape, and those who knew hira began to
say that he bore a charraed life. And he con
tinued to fight in the air, coraraanding the 60th
Squadron, which becarae known as the V.C.
Squadron, and habitually violating the rule which,
in that stage of the struggle, forbade the cora
raanding officers of squadrons to engage personally
in air combat. When positively forbidden to
engage, he positively refused to obey, saying, " I
will not send boys to fight unless I go with them.
Lower my rank if you like, and then I can fight."
He met with accident after accident, until hardly
a part of his body was quite unscathed, but it
seeraed as if no risk, or combination of risks,
could destroy so tenacious a life or daunt a spirit
so buoyant. Two hours before the Arraistice according to
arrangement became effective Scott was flying,
not knowing how long he might have the chance
of doing so, over the Gerraan lines. His eye
was as keen as that of a hawk, and he discerned
far away congested in and about a road a Gerraan
infantry battalion. It was entirely at his raercy.
He was fully equipped with borabs of the raost
destructive and disruptive kind. No officer in
the Flying Force was better able than hiraself to
push the full aggressive frora the air. By all the
laws of war he was entitled to do so. Perhaps
by all the laws of war it was his duty to do

140 POINTS OF VIEW
XV. so : for the Arraistice had not in fact been rati-
fied and might never have been ratified at all.
I express no opinion as to where the rule of
railitary duty pointed. But this officer who had
ruthlessly and incessantly destroyed Gerraan
lines while the contest raged, believing in his
own heart that the Arraistice would certainly
be ratified, could not and did not achieve the
butchery which was in his power. I suspect that
he chose the nobler part in flying back re infecta
to the British lines.
He was promoted from the 60th Squadron to
the coraraand of the Xlth Wing, and there, too,
though a Lieutenant-Colonel, he insisted on fly
ing over the line in deflance of orders. It was
notorious in the service that this glorious dis
obedience alone excluded hira frora the highest
decorations. His subordinates obtained thera on
his recommendation. He was next appointed to
the important post of Commandant of the Central
Flying School at Upavon, which he gave up only
to return to France to coraraand another Wing.
In 1920 he wrote the history of his old squadron
in soldierly and unpretentious fashion, but not
without considerable literary skill.
When the War ended, he was offered a per
raanent coraraission in the Air Force, which had
learnt to recognise that he was not only a dashing
fighter, but that he possessed in addition unusual
qualities of raind and of organising capacity.
Shortly afterwards, he was appointed Air Secre
tary to Mr. Winston Churchill, who was at that
tirae Secretary of State both for the War Office
and for the Air Force. He retained this position

JACK SCOTT 141
under Captain Guest, and held it at the time of xv.
his death. There can be no doubt that he would
have risen to the highest position in his pro
fession, and I raay, perhaps, be bold enough,
now that he is dead, to say that the present
Secretary of State for Air told rae quite recently
that he thought hira an officer very likely to
becorae one day Chief of the Air Staff.
And quite suddenly all this proraise is ex
tinguished as the result of a neglected ailraent,
and he who for so long with dauntless eyes faced
and challenged death has fallen on the assault of
disease before an inscrutable decree. None who
knew him will ever forget his striking personality.
His finely shaped head gave certain promise of
indomitable resolution. Indeed, its ruthless power
was qualified only by its latent humour and its
delightful and attractive simplicity. I know of
no character in history or fiction of whora he
raore constantly rerainded rae than of " Valiant,"
in Pilgrim's Progress, walking into the dark river.
And like Valiant, he, too, during four years of cool
and inextinguishable daring, raight have asked,
and with the sarae conterapt, " O Death, where is
thy sting ? O Grave, where is thy victory ? "
And I think that for hira too, as he neared
the other bank, the trurapets raust have sounded.
Of the affections of his life and of his friend
ships, though both are well known to rae, I do
not at this raoraent speak, but a raore constant
heart never beat for those whora he loved, nor
a raore valiant one for England. May his brave
spirit rest in peace !

XVI
EDWARD HORNER
XVI. Edward Horner was born on May 3, 1888, of
the ancient and well-known Horner faraily of
Mells, Frorae. He was educated at Suraraerfields
and at Eton, passing into College at the election
in 1901, but his father. Sir John Horner, decided
to send him as an oppidan, and his Eton life was
spent in Mr. Irapey's House. In 1906 he went
to Balliol. His chief friends at Eton and at Balliol
were a brilliant and ill-fated band of whora rauch
has been written. The two Grenfells, Patrick
Shaw Stewart, Charles Lister, Anderson, Raymond
Asquith, Vernon, and Anson. All are dead.
When he left Oxford he decided to be called to
the Bar, and came in due course as a pupil to
my charabers, beginning his work there in 1910.
Thereafter he becarae one of my intimate friends,
often staying with me, and on one occasion he
raade a long expedition in ray corapany to the
United States of Araerica and Canada.
When the War broke out, he held a subaltern's
coraraission in the yeoraanry of his native county.
He raobilised at once with his regiraent, but
becoraing convinced that the yeoraanry would
not be sent to any theatre of war without much
142

EDWARD HORNER 143
delay, and being passionately anxious to take xvi.
his part at the earliest raoment, he began to use
all the influence he possessed to obtain a transfer
into a regiment of the Regular Array. After
much effort, and largely by the help of his friend.
Lord Haldane, he obtained a comraission in the
18th (Q.M.O.) Hussars and proceeded to France
in the black spring of 1915. He was engaged in
the heavy fighting which followed the second
battle of Neuve Chapelle, and sustained a grave
and very dangerous wound, being shot in the
storaach very soon after his arrival. For raonths
he lay between life and death. He suffered
extraordinary pain, culminating in an operation
by which one kidney was reraoved, I saw hira
raonths after his wound in a nursing home, I
should hardly have recognised him, A pale
shadow of his former self, he had hardly strength
to raake himself audible in the small room. But
youth and a fine constitution triumphed, and
though I always fancied afterwards that he never
quite regained all his old buoyancy, his restora
tion to health seeraed fairly coraplete. He was,
however, for a long tirae only allowed to do light
training work in England. Wearying of the
tediura, and being still pronounced unfit for
regiraental work, he asked rae to try and obtain
for hira sorae suitable occupation on the staff in
Egypt. The atterapt proved successful and he
proceeded to Egypt, serving there for sorae
raonths. But with growing health and strength
carae growing irapatience of a non-corabatant
role, and after I know not what solicitations, he
obtained leave to rejoin his regiraent in France.

144 POINTS OF VIEW
XVI. He had already been offered honourable and
useful occupation in England by Lord French,
but he knew that his regiraent, which had sus
tained raany casualties, was in need of hira. He
returned to the front, and was heavily engaged
frora the 13th to the 21st Noveraber 1917, and
on the 21st, No. 4 Troop, of which he was in
coraraand, was holding the entrance of the village
of Noyelles against strongly pressed Gerraan
infantry attacks. The Troop had just repelled
one such assault. Captain Joynson, the Senior
Officer in the neighbourhood, hearing the cheers,
came over to learn the cause, and left after
congratulating his friend and comrade. He never
saw hira again. A few moraents later, Edward
was struck, again in the storaach, by the bullet,
fired at close range, of a Gerraan sniper, and
a few hours later he was dead. This tirae he
appeared to suffer no pain. He seeraed to fall
gradually into a state of coma. He only spoke
once after his wound, asking the Chaplain, as
he lay at the dressing-station, if he would be
sure to let his people at home know " how things
have been with rae." Very soon afterwards he died.
Such in very brief outline was the life history
of one who, in a short tirae, had staraped a rare,
and even a wonderful, personality upon the
affections of raany very different friends. Six
feet four inches in height, broad shouldered,
lithe and rauscular, with a superbly shaped head
and neck, he was a picture of radiant masculine
beauty. The noble statue of Mr. Munnings,
recently exhibited under the words, " A Cavalry
Subaltern," which is to be placed in memory of

EDWARD HORNER 145
him near the church at MeUs, affords a wonderful xvi.
picture alike of hira and of his type.
It was in my eyes one of his principal charms
that he united with a form so raasculine and with
a passion for, and a proficiency in, the raost
dangerous raasculine pursuits, a caressing and
syrapathetic charra which was entirely feminine.
His gaiety, his love for friends, were unsurpassed
even among that reraarkable brotherhood, aU of
whora lavished love upon noble and worthy
friends. Edward Horner looked on life as a
magnificent adventure to be lived magnificently
and in the great style. He could not be niggardly
of hiraself, of his strength, or of anything that
he possessed, and he was ready to bestow all
these more gladly upon the necessities of a friend
than upon his own. To listen to the troubles
of others, to alleviate thera by corafort or by
syrapathy, was part of a very precious gift. He
was a rauch younger and a rauch less experienced
raan than I, but there was soraething about hira
which always irapelled rae to go to hira with
troubles, great and sraall, however secret these
raight be. He knew that he could help if only
by listening and caring. And he both listened
and cared.
He had a strong, lively, and in some ways even
a brilliant intelligence. Sustained and detailed
application was laborious to him. But he was
gradually acquiring its discipline when the War
broke out, and I rayself ara of opinion that he
would have done well at the Bar. Quick, polished,
handsorae, and intelligent, he brought to its cora-
petition a rare and rich accuraulation of gifts.
VOL. II L

146 POINTS OF VIEW
XVI. A nature which gave so much to its friends
was unlikely to be lacking in the more sacred
sphere of faraily affection. The relationship
between hiraself and his raother. Lady Horner,
was in all its aspects beautiful. But of this
I say no more.
The last letter he wrote from France before
his death was dated the 17th November 1917,
just after his return from leave in England. It
is a short and scribbled note, but I print it here
because it was characteristic, and because it
contains the last words that he is known to have
written :
. . . Things are looking much better to-day. We
are likely to move almost at once, and shall have some
thing to do.
I suppose it was reaction after leave, but on arrival
here I felt cross, and they would all draw attention to
it asking why, and so forth, which always makes one
worse. To-day things changed and every one seems
attractive again, and we had a lovely dinner with sing
ing and laughter, and I feel the connection between my
love for my companions, and my love of you. Bless
you all. — E.
With hira perished the last hope of direct
male succession in an ancient and honourable
English house. And there passed too a gay,
sunny, and adorable nature, the love of which
raade life sweeter and will keep it perraanently
sweeter for raany.

XVII
JUDGES AND POLITICS
During the raonth of March of this year questions xvu.
arose, and were debated at sorae length in the
House of Lords, which turn upon the constitu
tional position of the Judicial Bench and in
particular of those Judges who sit in that House
virtute officii. The controversy sprang alraost as
a side issue from the debates upon the Irish Free
State Agreeraent Bill, and, as often happens, its
perraanent importance was soraewhat obscured
by the personal interests involved. The doctrines
which were enunciated were of great gravity,
and sorae of thera, especially those which were
laid down by Lord Salisbury on the 29th March,
were soraewhat astonishing. If it had appeared
that those doctrines were held only by laymen I
should not consider it necessary to recur to the
subject. I had supposed, until I listened to the
debate, that the constitutional position was
clear, and that no one desired to see some
modern EUenborough sitting in the Cabinet as
Lord Chief Justice, or some modern Sir Hugh
Cairns hastening from the Strand, after sitting
in the Court of Appeal until 4 o'clock, to lead
the opposition in the House of Lords. Such
147

148 POINTS OF VIEW
xvu. apparently is the desire of Lord Salisbury. His
speech would have made his sagacious and experi
enced father shudder. But though we welcome
and tremble before Lord Salisbury's fiery irruptions
in debate, I should not have thought myself com
pelled, by the depth of his constitutional learning,
to think that his intervention in the matter required
any further restatement of the modern constitu
tional practice. It is rather because my noble
friend and iraraediate predecessor upon the Wool
sack — Viscount Finlay — coraraitted hiraself to
views upon this subject, which seera to me unsound
in their conception, and disastrous if carried into
execution, that I think it well to deal with it
at greater length than is possible in the House
itself. The matter arose in part from the intervention
of several of the Lords of Appeal in Ordinary in
the Irish debates, and in part from a political
speech delivered by one of those Lords of Appeal
in the country. Much was said by that noble
Lord, whose conduct I ventured to criticise, about
his personal honour. No question of personal
honour and indeed no personal question of any
kind enters into the matter. The subjects for
consideration are : what is the course of conduct
which modern theory and practice impose upon
Judges in relation to politics, and in particular
upon those Judges who are raerabers of the Upper
House ; what is best in the interests of the
adrainistration of justice, and of the respect and
authority which ought to be possessed by our
Courts of Law, and in particular by the two
Suprerae Appellate Tribunals of the Empire —

JUDGES AND POLITICS 149
the House of Lords and the Judicial Committee xvu.
of the Privy Council. If there is any rule or
convention which in effect forbids the Lords of
Appeal in Ordinary frora taking an active part
in political controversy — either within or without
the House of Lords — should that rule or conven
tion apply also to the Lord Chancellor and to
the ex-Lord Chancellors ; or, in the alternative,
if there is no such rule or convention binding
these judicial personages, should such a rule
bind the Judges of the Suprerae Court. Should
they be released from the prohibition which at
present prevents thera by Statute frora sitting
in the House of Coraraons. Again — it being con
ceded that Recorders of provincial towns and
those magistrates who are not appointed under
the Acts relating to Police Magistrates and
Stipendiary Magistrates take an active part in
politics and sit in the House of Comraons — should
not this liberty be extended upwards as it were,
so that, from the Lord Chancellor to the raeraber
of any County or Borough Bench, all those,
whether lawyers or layraen, who take part in
the adrainistration of justice should be free to
place their services at the disposal of the State
in political raatters, and be able frora their places
in Parliaraent to give to Parliament the in
estimable advantage of their judicial experience.
Now on all these points Lord Finlay is clear.
He thinks with regard to the Judicial Bench —
" the coraraon law Bench and the Judges of
equity . . . that there is a long and unbroken
tradition that they should not take part in political
life." He thinks that there is sorae case for

150 POINTS OF VIEW
XVII. applying a similar prohibition to such Judges as
Recorders. But with regard to the Lords of
Appeal in Ordinary, he thinks that there is "no
such convention and no such rule." Further
more, he thinks that there ought not to be such
a convention. And he deals with the arguments
which I addressed to the House of Lords in the
matter as follows :
" The Lord Chancellor takes the case of the
ordinary Judges. He says that there is a well-
established rule with regard to them. They are
Judges, and Lords of Appeal here are also Judges.
Therefore, if the comraon law Judges are excluded
from politics it follows that the Lords of Appeal
here, being Judges, are also to be excluded.
That is not the way in which the law of England
has been built up." ^
I fully agree that the law of England, especially
in such matters, has not been built up by clear-
cut deductions such as these. It has been built
up piece by piece, and to sorae extent haphazard,
to raeet particular emergencies as they arose.
Very often that which is alleged to be the founda
tion of sorae constitutional doctrine has been
invented to account for the existence of the
doctrine itself. Very often from sorae constitu
tional principle there have followed consequences
which were never intended by its fraraers. Our
love for precedent, our desire to seek in precedent
rather than in principle for the reasons of things
as we find thera, or as we think they ought to
be, have often produced curious results. The
history of the separation between the judiciary
' Hansard, vol. xlix. p. 9S3.

JUDGES AND POLITICS 151
and the legislature is one of the raost striking of xvu.
these processes of constitutional evolution.
There was a tirae when the High Court of
Parliaraent was a Court indeed, and when legal
personages preponderated araong those who raade
as well as interpreted the law. By slow degrees
the hereditary principle prevailed, and the Judges,
the Attorney- and Solicitor-Generals, the King's
Serjeants-at-Law, and the Masters in Chancery
becarae raerely legal assessors, assistant or attend
ant upon the House.
The fact that they were thus assistant or
attendant becarae the ground alleged for the
exclusion of the coraraon law Judges frora the
other House. It is curious to notice the exact
forra of the decision. On Saturday, 9th Noveraber
1605, the Coraraittee for Returns and Privileges
of the House of Coraraons " returning to the
House raake report by Sir George Moore " of the
cases which they had to consider. It will be
reraerabered that service in the House of Coraraons
was not looked upon universally as an object of
arabition. The Report of the Coramittee was as
follows :
L/yme Begis : The Burgess Hassard not able to serve,
by reason of the gout. He came unto them, walked in
fear only. Resolved, That he should serve still.
Weak, and not able to serve, by reason of age and
not likely to recover : Swaddon, for Calne in Wiltshire :
To be removed.
Serjeant Snigg \ Attendants as Judges in the Higher
Lord Chief Baron] House.
Not to serve here. If a Serjeant, to serve here.
Sir Henry Carye, Captive : To stand still as a
Burgess.

152 POINTS OF VIEW
XVII. Then follow the decisions of the House upon
the Report.
(Q.) Whether Hassard shall stand and serve ?
Resolved. He shall not be removed.
(Q.) Whether Swaddon, for Calne, shall be removed ?
Resolved. He shall, and a new Writ to issue.
(Q). Touching Lord Chief Baron, Burgess for South,
and Baron Snigg for Bristowe, being Attendants as
Judges in the Higher House, whether they shall be
recalled ?
Resolved. They shall not.
Thus with the intiraate personal details as to
the illness of poor Mr. Hassard, who was con
deraned to serve, and fortunate Mr. Swaddon,
who was allowed to retire to his native Wiltshire,
there was decided once and for all the constitu
tional question whether the Judges of the Common
Law Courts should sit in the House of Comraons.
It will be observed that nothing is said of
the Attorney- General, the Solicitor-General, the
Master of the Rolls, and the other Masters in
Chancery. But all these personages continued
for raany years to act as attendants or assistants
in the House of Lords, and in fact precisely the
sarae arguraent applied to them as to the Judges
who were declared disqualified.
The Parliamentary history of these officials is
worthy of attention in detail.
For some reason, which is nowhere stated, the
House of Comraons excluded the Attorney and
adraitted the Solicitor and the King's Serjeants
" upon what distinction ... I do not know
says Hatsell.^ It is not absolutely clear either
' Parliamentary Precedents, 1818.

5)

JUDGES AND POLITICS 153
frora Dugdale's Summons to Parliament ( " A perfect xvu.
copy of all Suraraons of the Nobility to the Great
Councils and Parliaraents of this Realra frora the
XLIX of Henry the Hid. until these present
Tiraes," Sir Williara Dugdale, London, 1685), or
from Parliament Pawns {i.e. the enrolments in
the Office of the Petty Bag of writs of suraraons
to Parliament and of election writs frora 30
Henry VIII.) that both the Attorney and the
Solicitor invariably received writs to the Upper
House before the 36th year of Henry VIIL, but
it is probable that neither of these sources of
information is coraplete. Thus frora the 49th
year of Henry VI. to the 21st year of Henry
VIII. it is certain frora Dugdale that writs were
issued to the Judges and to the Attorney-General,
but there is no raention of the Solicitor-General.
After the 21st year of Henry VIII. the Judges'
writs are no longer raentioned nor are the Judges
raentioned as receiving writs. But this cannot
be due to any alteration in practice, since both
the Judges and the Serjeants-at-Law are raen
tioned as attending the opening of Parliaraent in
an account of the cereraonial at page 508 of
Dugdale, 28th April, 31 Henry VIII.
In the 30th year of Henry VIII. the narae of
J. Baker, Attorney-General, is written in Parlia
ment Pawns, but it is crossed out and the narae
of "Edward Gryffin, Solicitor to the King,"
substituted. The next parchraent in Parliament Pawns is
the 36th Henry VIIL, and there and in the 1st
of Edward VL, 1st of Jaraes I., and the 21st of
James I., the names ofthe Attorney- and Solicitor-

154 POINTS OF VIEW
xVii. Generals appear at the end of the list of the
Judges, and frora the latter date to the 30th of
Charles IL they are naraed with the Judges in
all pawns.
As to the sitting of the Attorney in the Coraraons
the question arose on the 22nd November 1606,
when " there was much dispute and confusion
touching the case of Sir Henry Hobart, Attorney-
General (' raany precedents of the King's Serjeant
and Solicitor, but none for the Attorney ; sed
eadem ratio,' says the Journal, quoted in Hatsell).
At last, it was by voice overruled, that no question
should be raade of it, but that the raatter should
rest. And on the 24th Mr. Attorney carae in of
hiraself, and continued, by connivance, without
other order."
This did not end the raatter, however. It
arose again in 1614 when the House, after the
Report of the Coraraittee to search for precedents,
resolved " that the Attorney-General shall for
this Parliament reraain, but that no Attorney-
General shall serve as a Meraber after this Parlia
raent," In 1620 this decision was acted upon,
and a new writ issued upon the appointraent of
the Attorney-General, and in 1625 upon the
appointraent of Sir Robert Heath to be Attorney-
General, and in 1640 upon the appointment of
Mr, Herbert to that office, the same course was
foUowed, But in 1670 Heneage Finch, who had
been Member for the University of Oxford since
1661, was appointed Attorney-General, He re
tained his seat until 1673 when he was appointed
Lord Keeper, As in the case in 1606, there raust
have been " connivance." At least no one seems

JUDGES AND POLITICS 155
to have taken any objection, and frora that day xvu.
to this the custom that the Attorney-General
should be a Member of the House of Comraons
has remained unchallenged. Be it reraerabered
that like his brother law-officer, the Sohcitor-
General, he receives a writ to the House of Lords,
The case of the Solicitor-General seeras to
have arisen and been decided once and for all
in 1566, In that year Richard Onslow, Burgess
for Steyning, was thought of for the office of
Speaker which was then vacant through death.
He was at the time Solicitor-General and was
" sent down by the House of Lords with the
Queen's Serjeant-at-Law and the Attorney-General
' to show for hiraself why he should not be a
Meraber of the House,' but though he alleged
raany weighty reasons from his office of Solicitor
and frora his writ of attendance in the Upper
House yet he was nevertheless adjudged to be
a Meraber of the Coraraons." As to the Serjeants,
the decision of 1605 seeras to have been that they
should serve in the House of Coraraons if elected.
This decision rested upon a resolution of the 17th
February 1575, that " according to old precedents
Mr. Serjeant Geoffrey, returned one ofthe Knights
for Sussex, raay have voice, and give his attend
ance as a Meraber, notwithstanding his attendance
in the Higher House, as one of the Queen's
Serjeants, for his Counsel there ; as the place
where he hath no voice, nor is any Meraber of
the sarae."
The King's Serjeant continued therefore to sit
in the Coraraons, if elected, so long as King's
Serjeants existed. The last writ directed to a

156 POINTS OF VIEW
XVII, Queen's Serjeant to attend the Upper House
issued in the 20th year of Queen Victoria (1857)
to Serjeant Byles upon his creation as Queen's
Serjeant, The Masters in Chancery also sat until their
office ceased to exist upon the passing of the
Masters in Chancery Abolition Act, 1852 (15 & 16
Vict, c. 80), but their eligibility for the Commons
was not always beyond question. In 1833 the
Act of 3 & 4 Wm, IV. c, 94 vested in the Crown
their appointment, which had hitherto been in
the Lord Chancellor, and in 1838 upon the accept
ance by Mr, Lynch, who was then Member for
Galway, of the Office of Master in Chancery, he
was held to have vacated his seat and a new
writ was issued. He was re-elected and a petition
was thereupon presented against hira on the
ground that he was disqualified for election to
the House of Comraons, the office — as it was
contended — having by the operation of the Act
of William become a new office within the mean
ing of the Statute 6 Anne, c, 7, The case was
very fully argued^ before a Committee of the
House of Commons, which resolved that Mr,
Lynch was duly elected. They with great dis
cretion refrained from giving any reasons for
their decision.
The Master of the Rolls was eligible as a
member of the House of Commons until the
Judicature Act, 1873, came into operation on
the 1st November 1875. His case is the raost
anoraalous of all, but, as in the raiddle of the
nineteenth century it furnished the occasion for
* Falconer and FitzHerbert, p. 579.

JUDGES AND POLITICS 157
that speech by Lord Macaulay which has been xvu.
rauch cited during the present discussion, I wUl
postpone the consideration of his position untU a
later stage of this arguraent.
It should perhaps be stated that from time to
time the writers of text-books or precedent books
— being puzzled by the distinction made between
the position of the various judicial or legal officers
— have sought to base it in part on the supposi
tion that some of thera were " assistant " and
sorae " attendant " in the House of Lords. If
the Journals and the Parliament Pawns are
searched this appears to be a distinction without
a difference. All these persons are suraraoned
by the sarae forra of writ, and neither the word
" assistant " nor the word " attendant " appears
in the writ. All seem indifferently to perform
the same offices for the Upper House. Sorae
tiraes the Master of the Rolls and soraetiraes the
Attorney-General acts as a Messenger from the
Upper to the Lower House. It would appear
that the word " attendant " or " assistant " is used
according to the taste or fancy of the person who
uses it. It is, however, worth noticing that the
Master of the Rolls in 1690 describes hiraself as
" assistant." There is no doubt that he was on
occasion a raessenger from the Lords to the
Comraons, and was, so late as the 19th Deceraber
1640, eraployed in that capacity.
Lord Macaulay appears to have supposed that
Judges are excluded frora the House of Coraraons,
and should continue to be excluded, because " it
would be inconsistent with the privileges and
dignity of this House (that is the Coraraons) to

158 POINTS OF VIEW
XVII. have any member here who is at the beck and
call of the other House," ^ and Judge Atherley
Jones in a recent letter to the Times improves
upon Macaulay's authority and gives as the
reason " they {sc. the Judges) were employed as
bearers of messages frora the Lords to the Com
raons. The deraocratic pride of the Commons
would not tolerate that the ' attendants ' of the
Lords should sit in their House, and in 1605", by
resolution, they excluded thera." As the facts
above set out show, this is not the way in which
the law of England has been built up, though it
is the way in which history coraes to be written.
It is clear that if any democratic pride had
entered into the matter it would equally have
forbidden the sitting in the House of Coramons
of the other legal personages who had seats but
no voice in the Lords.
In truth, we do not know with certainty
what deterrained the Coraraons to reach the
resolution of 1605, yet it is not beyond all con
jecture. Professor Gardiner ^ has described the
silent change in the coraposition of the House of
Coraraons which had been taking place during
the last days of the Tudors. " The old rule had
been relaxed which forbade any raeraber to sit
for a place in which he was not resident." He
points out the evils which resulted frora that
change and continues, " but this was as nothing
in coraparison with the advantage which arose
frora the introduction into the House of a large
^ Hansard, 3rd series, vol. cxxvii. col. 1008.
* Histori) of England from tlie Accession of James I. to the OuHrreak
of Civil War, vol. i. p. 161.

JUDGES AND POLITICS 159
body of men of ability recruited especially frora xvil
araongst the lawyers. . . . The services which
this class of raen rendered to the cause of free
dora were incalculable. ... A few years later a
race of Parliaraentary statesraen would begin to
arise from amongst the country gentlemen. . . .
For the present, the burden of the conflict in the
Comraons lay upon the lawyers, who at once
gave to the struggle against the Crown that
strong legal character which it never afterwards
lost." It raay well be that such a change was
accorapanied by certain reactions such as those
which in earlier days had led to the " Unlearned
Parliaraent," and that the layraen were glad to
get rid of at least one most conspicuous type of
lawyer — those who had attained the coraparative
security of the Bench.
But if this jealousy entered into the considera
tion of the question, it is not the whole of the
raatter. The security of the Judge's tenure was
as yet not absolute. In 1606 Coke took his
place upon the Bench, and there began the long
constitutional struggle which was only finally
closed by the Act of Settleraent. I have searched
the Docquet Books in the Crown Office in Chancery
and the Index to the Patent Rolls relating to
the appointraents of Judges of the King's Bench,
Upper Bench, and Coraraon Pleas, and Barons
of the Exchequer frora 1613 (11 Jae. I.) to 1703
(2 Anne). The task was one of sorae difficulty,
for the Index to the Patent Rolls for parts of
the reigns of Charles I. and Charles II. is in bad
condition and the sheets relating to several
" reigning years " appear to have been raixed

160 POINTS OF VIEW
XVII. in rebinding. The Docquet Books for the same
period are not indexed and in many parts the
entries are very badly written.
Subject to these observations, ray search, put
briefly, gives the following results :
Frora 18 Jae. I. (1620) to 10 Car. L (1634)
all Judges' Patents are " during pleasure." From
16 Car. I. (1640) to 21 Car. II. (1668) aU (with
one exception) are quam diu se bene gesserit,
though Foss ^ says of Newdigate, who was ap
pointed Justice of the Upper Bench on the 2nd
June 1654, that he " was turned out by the
Protector for ' not observing his pleasure,' not
withstanding the quam diu se bene gesserit of
his Patent." The exception is the Patent of
Foster C J., King's Bench, October 22, 1661.
His Patent says vobis mandamus qd officio illis
intendatis. On the 6th February 1668-69, Richard Rains-
ford was appointed a Judge of the King's Bench
" during pleasure " (Crown Office Docquet Book).
His Patent is no doubt that which is referred
to by Foss ^ where he says " A direct proof of
the atterapt to render the Judges subservient to
the Court is to be seen in the substitution of
the old forra in their patents, of durante bene
placito, for quam diu se bene gesserit, which
had been conceded by Charles I., and had been
adopted in all the earlier patents after the
Restoration." This is the first of a long series of Patents
" during pleasure," which extends through the
1 Judges of England, vol. vi. p. 400.
^ Ibid. vol. vii. p. 4.

JUDGES AND POLITICS 161
reraainder of Charles II.'s reign, and through the xvu.
whole of Jaraes II. into the first year of Wilham
and Mary ; and readers of Lord Campbell's
Lives of the Lord Chief Justices will reraeraber
the procession of transient and erabarrassed
phantoms who rapidly displaced one another in
the office of Chief Justice during the years im
mediately preceding the Revolution.
On the 18th March 1689 (1 Wm. & Mary),
WUliam Dolben, Edward NevUe, and John Powell
were appointed " during pleasure " to the King's
Bench, Exchequer, and Comraon Pleas respect
ively. These are the last appointraents on this
tenure; a raonth later (20th April 1689) they were
reappointed quam diu se bene gesserint. Henceforth
the Docquet Book entries of Judges' Patents frora
1689 to the 2nd year of Anne are all quam diu
se bene gesserit, and by the Act of Settleraent
(12 & 13 Wm. III. c. 2, s. 3) it was enacted "that
after the said limitation (that is upon the House
of Hanover) shall take effect as aforesaid. Judges'
Comraissions shall be raade quam diu se bene
gesserint and their salaries ascertained and estab
lished ; but upon an address of both Houses of
Parliaraent it raay be lawful to reraove them."
Thus the seventeenth century, which cora
raenced with Judges capable of sitting in the
House of Coraraons, but dependent for their
security on the Bench wholly upon the pleasure
of the Crown, ended with the assertion, as regards
the Coraraon Law Judges at least, of two con
stitutional doctrines, which would generally be
regarded as fundaraental, that they should be
excluded absolutely frora popular election, and
VOL. II M

162 POINTS OF VIEW
XVII. absolutely secure from the influence of the execu-
tive Governraent.
The existing Equity Judges remained un
affected. But except in so far as the Lord
Chancellor and the Master of the Rolls sat as
Judges of First Instance, there were no Judges
in Equity holding a position corresponding to
that of those who sat on the Comraon Law Bench.
The first Equity Puisne Judge, if so he may be
terraed, was the Vice-Chancellor of England,
appointed, very much to Eldon's annoyance,
under the 53 Geo. III. c. 24.
Before that event, other legislation had super
vened. By the Act of Settlement (12 & 13 Wm.
III. c. 2), it was provided that " no person who
has an office or place of profit under the King,
or receives a pension frora the Crown, shall be
capable of serving as a Meraber of the House of
Coramons." 4 «& 5 Anne, c. 8, repealed this
provision and substituted for it a section render
ing, as frora the dissolution of the then existing
Parliament, any person " who shall have in his
own narae or in the narae of any person or persons
in trust for hira or for his benefit any new office
or place of profit whatsoever under the Crown
which at any time hereafter shall be created
or erected" incapable "of being elected or of
sitting or voting as a Member of the House of
Coraraons." The Succession to the Crown Act, 1707 (6 Anne,
c. 7), repealed and re-enacted this section of the
Act of 4 & 5 Anne, defining " new office or place
of profit " as one " which at any time since the
five-and-twentieth day of October in the year

JUDGES AND POLITICS 163
of Our Lord One thousand seven hundred and xvn.
five have been created or erected or hereafter
shall be created or erected."
Thus the struggle of the seventeenth century
concentrated mainly upon the judicial independ
ence of the judges ; the statesraen of the early
eighteenth century devoted their efforts to an
endeavour to secure the independence of Parlia
ment. Such was the position when Montesquieu
examined it. His brilliant generalisation on the
subject of the Separation of Powers may have
misled the framers of raore than one constitution
on raore than one side of the Atlantic. Yet, in
one matter at least, he did not err : " II n'y a
point encore de liberte si la puissance de juger
n'est pas separee de la puissance legislative et
de I'executrice. Si elle etoit jointe a la puissance
legislative, le pouvoir sur la vie et la liberte des
citoyens seroit arbitraire ; car le juge seroit
legislateur. Si elle etoit jointe a la puissance
executrice, le juge pourroit avoir la force d'un
oppresseur," ^
Montesquieu has had no raore searching critic
than that venerable jurist. Professor Dicey, who
has so lately passed frora araong us. Yet, says
Dicey : " Upon the degree of authority and
independence to be conceded to the Bench
depended the colour and working of our institu
tions. To supporters, on the one hand, of the
prerogative who, like Bacon, were not unfre
quently innovators or reforraers, judicial inde
pendence appeared to mean the weakness of the
1 VEsprit des lois, edition 1821, torn. iii. p. 418.

164 POINTS OF VIEW
XVII. executive and the predominance throughout the
state of the conservative legalism which found
a representative in Coke. The Parliamentary
leaders, on the other hand, saw, more or less
distinctly, that the independence of the Bench
was the sole security for the raaintenance of
the coraraon law, which was nothing else than
the rule of established customs modified only by
Acts of Parliament, and that Coke in battling
for the power of the Judges was asserting the
rights of the nation ; they possibly also saw,
though this is uncertain, that the maintenance
of rigid legality, inconvenient as it might some
times prove, was the certain road to Parlia
mentary sovereignty." ^
Meanwhile, the general trend of legislation
followed the constitutional precedents of the
seventeenth century. Thus 7 Geo. II. c. 10
excluded the Scottish, and 1 & 2 Geo. IV. c.
44 excluded the Irish Judges (and amongst them
the Irish Master of the Rolls) from the House
of Coraraons. In England no sirailar provisions
were necessary as regards the existing Judges,
because they were, with the exceptions noted,
already excluded by the resolution of 1605. As
regards newly created judicial offices within the
raeaning of the Succession to the Crown Act,
they were excluded by the operation of its
25th section. It is curious to notice that Lord
Broughara, whose opinions on the policy of this
matter were impeccable, was most unaccountably
faulty in his memory of the actual facts. Writing
in 1862, he says, " The Vice-Chancellor or the
1 Law of the Constitution, Sth ed. p. 224.

JUDGES AND POLITICS 165
new Judges in Bankruptcy, the Judge of the xvu.
Court of Admiralty, and the Masters in Chancery
have all in late years been forbidden to sit in
the Lower House." At the tirae when he wrote
there were no Masters in Chancery, for they had
been abolished ten years before, and they had
remained eligible to sit in Parliament so long as
they existed. As regards the Vice-Chancellor of
England (53 Geo. III. c. 24), the other Vice-
Chancellors (5 Vict. c. 5, 14 & 15 Vict. c. 4,
and 15 & 16 Vict. c. 80), and the Lords Justices
of the Court of Appeal in Chancery (14 & 15
Vict. c. 83), the Statutes creating their respective
offices were silent as to their sitting in Parlia
ment, because the Statute of Anne rendered it
unnecessary. As regards the Judge of the Admiralty Court,
however, Lord Broughara was accurate. In 1833
a very strong Select Coraraittee of the House of
Coramons enquired into the office and duties, etc.,
of the Judges of the Prerogative Court and of
the High Court of Admiralty, the Dean of the
Arches, and the Judge of the Consistory Court.
It included among its merabers Sir James
Grahara, Sir Robert Peel, Sir Jaraes Scarlett,
CarapbeU (afterwards Lord Chief Justice and
Lord Chancellor), and raany other well-known
raenibers of the House. Among the witnesses
examined before them was Mr. (afterwards Sir
John) NichoU, himself a meraber of Parliaraent
and a raeraber of the Coraraittee, who was at
the tirae Dean of the Arches, Judge of the
Prerogative Court, and Judge of the Adrairalty
Court. He was asked the following questions :

166 POINTS OF VIEW
XVII. Do you think there would be any objection to render-
ing the office of those Judges incompatible with a seat
in the House of Commons ? My own feeling, after sitting
in Parliament above thirty years, is rather against
Judges sitting in the House of Commons, I confess.
Might there not arise cases in which there might be
debates in the House of Commons on matters whieh
come judicially before one of those Judges ? Certainly.
You would consider that to be an inconvenience ?
I should think so.
Thereupon the Committee, without hearing
any further evidence upon the point, recomraended
that the Judge or Judges should not be capable
of sitting in the House of Coraraons, and effect
was given to this recommendation by the Statute,
3 & 4 Vict. c. 66, passed on the 7th August 1840.^
There, but for an incident to which I must
call attention hereafter, the matter rested until
1873, when the sarae statute which rendered the
Master of the Rolls incapable of sitting in the
Coramons, placed the incapacity of the other
Judges upon a statutory basis.
The next event to notice is the passing of
the Municipal Corporations Act, 1835. It is im
possible to exaggerate the confusion which existed
at that date in the administration of criminal
justice in the Boroughs. Some towns had Borough
Sessions without Recorders; ; some had Recorders
but no Sessions ; sorae Recorders had no legal
qualification ; sorae of those who were required
by Charter to be learned in the law were deeraed
to satisfy that requireraent by being peers,
and therefore Judges ; sorae had legal qualifica-
1 Report of the Select Committee on Admiralty Courts, vol. vii.,
dated 15th August 1833, at p. 401.

JUDGES AND POLITICS 167
tions but never sat at Sessions ; sorae were xvu.
appointed by the Crown, sorae by the Corporators,
sorae by a select few araong the Corporators,
some by the lord or lady of the manor ; sorae of
the Recorders corabined with that office that of
Town Clerk ; sorae of the Sessions had jurisdic
tion in capital offences ; sorae exercised such a
jurisdiction for years without discovering that
they did not possess it by law.
Into this chaos the Act of 1835 introduced
a certain araount of order. The Report of the
Royal Coramission, whose labours preceded the
preparation of the BiU, is a raine of curious legal
antiquities. The Act itself is one of the raost
solid legislative achievements of the law reformers
of the early nineteenth century. On its legal
side it vested the patronage of the office of
Recorder in the Crown, and required the Recorder
to be a barrister of not less than five years' stand
ing, holding his office during good behaviour,
and bound to sit as sole Judge at Borough
Sessions at least once in every quarter. To
meet one of the worst evils disclosed by the
Report of the Coraraission, the Act forbade the
Recorder to be an alderman, councillor, or police
raagistrate for the Borough. The fraraers of
the Act were then constrained to deal with the
question of Recorders sitting in Parliaraent. It
was obviously irapossible to render every Recorder
ineligible everywhere. Such a provision would
have liraited the choice by the Crown of suitable
people for the office to those merabers of the
Bar who had no Parliaraentary arabitions. The
amount of time which the Recorder is bound

168 POINTS OF VIEW
xvu. to give to his duties in any year is necessarily
short, and the salary is proportionately sraall.
On the other hand, the dangers incident to a
corabination of the Judge and the politician in
one personality are greatest when the Judge's
duties are mainly criminal. In this dilemma,
the legislature in 1835 adopted a comproraise,
enacting that the Recorder should not be eligible
to serve in Parliament for the Borough for which
he acted as Recorder. This arrangeraent has
worked reasonably well ever since. It wUl be
reraerabered that as the Municipal Corporations
Act did not apply to the City of London, the
Recorder of London was unaffected by it. His
appointraent remained with the Court of Alder
men until 1888, when the Local Governraent Act
in effect required their choice to be approved
by the Crown, and he reraained capable of sitting
in Parliaraent. Next carae the County Courts Act, 1846,
which created the County Court Judges. By
sorae accident that Act did not prohibit a Judge
frora sitting in Parliaraent. This error was
rectified by an Act of the following Session
(10 & 11 Vict. c. 102) which declared that no
Judge of the County Courts should be capable
of being elected or sitting as a Member of the
House of Comraons, and did so although, until
the County Courts Act, 1852, a Judge of County
Courts was still allowed to practise at the Bar,
except within the district " for which his Court
is holden." In 1853 this general current of legislation was
rudely interrupted. In that year a worthy Irish

JUDGES AND POLITICS 169
peer — Lord Hotham — thought he saw an oppor- xvn.
tunity for a useful piece of legislation which
should complete the separation of the judiciary
and the legislature. Lord Hotham was an ex-
guardsman who had been wounded at Salamanca
and had fought at Waterloo, and who, in 1853,
had sat in the Coraraons alraost continuously
since 1820. His claira to perraanent farae rests,
not so much on his achieveraents as a soldier,
or on the fact that before his death he had seen
nearly forty-eight years of Parliaraentary life, but
that on this occasion he found a lion in his path,
and provided the opportunity for the lion to give
a loud and reverberating roar. Lord Hothara's
Bill proposed to exclude frora Parliaraent the
Master of the Rolls in England, the Official
Meraber of the Arches Court of Canterbury, the
Master Keeper or Coramissary of the Prerogative
Courts of Canterbury and of York, and the Judges
of the Queen's Court of Prerogative and of the
Court of Adrairalty in Ireland. Any one might
have predicted an easy passage for it. It passed
its Second Reading without a division. There
were, it is true, certain ominous indications
upon the Second Reading Debate that the Whig
Government would have liked to defeat the Bill
if they had dared ; but the Tories, led by Sir
John Pakington and Sir Fitzroy Kelly, and the
Radicals, led by Mr. Hume, were in alliance, and
it was very difficult for the Whigs, against whora
the opinions of such erainent raembers of their
party as Lord Brougham and Lord Langdale
could be and were quoted with effect, to force
the House to a division. Sir John Pakington

170 POINTS OF VIEW
xvu. and Mr. Hume widened the Bill by including
in it the Recorder of London. The Coraraittee
stage was peaceful. But when Third Reading
was reached, an orator had been found who did
not intend to seek re-election to Parliaraent, and
who was very glad to express forcibly and openly
the objections which his party felt to the proposals
of the Bill. Macaulay was actuated by personal
as well as public reasons. The truth was that
it was raainly on personal grounds that the Bill
was objectionable to the Whigs.
The Master of the Rolls in 1853 was Sir John
Rorailly, a meraber of an old Whig faraily, whose
somewhat chequered Parliamentary career lent
considerable point to criticisms based upon the
incompatibility between the judicial office and
submission to the suffrage of the electors. He
had been originally elected for Bridport in 1832,
and defeated for that constituency in 1835, after
a very sharp contest, by 8 votes. In 1846, he
was again elected for that constituency, but only
after a scrutiny. In 1847, he was elected for
Devonport. He became Lord John Russell's
Solicitor-General in 1848, Attorney-General in
1850, and Master of the RoUs in 1851, and lost
his seat at Devonport at the General Election of
1852. On that occasion his conduct was such
as to cause considerable criticism. " Your Lord
ships raay recollect," said Lord Chancellor Cran-
worth, speaking in 1856, " that at the last General
Election ray learned friend the present Master of
the Rolls was a candidate, and great scandal was
supposed to exist araong some persons by his
canvassing voters in a way that was by some

JUDGES AND POLITICS 171
persons thought not consistent with the high xvu.
public functions which he is called upon to
exercise." Thus Macaulay had an opportunity
of striking a blow for a personal friend and a
political ally.
He had, it would seem, another raotive —
half personal, half political. Any proposal to
exclude Judges frora the Coraraons could always
be met by the tit for tat, " Why don't you exclude
them frora the Lords ? " and in particular by
the retort which has been eraployed in the later
stages of the controversy, " What about the Lord
Chancellor ? " This forra of argument was par
ticularly effective in 1853, when the judicial
business of the House of Lords was, to say the
least of it, not well raanaged. It was also
particularly effective in the mouth of a Whig,
who disliked the hereditary principle, to raeet
an attack by a Tory who was pledged to its
support. The objection of the Whig and Liberal
parties to the appellate jurisdiction of the Upper
House was, with thera, alraost a raatter of prin
ciple. It played its full share in the debates on
the Wensleydale peerage and in the nuraerous
atterapts of the 'sixties and early 'seventies to
reconstruct our systera of judicature. In the
end, it carae near to wrecking Lord Selborne's
great Judicature Bill, and it was only set at rest
by Lord Cairns' Judicature Act of 1875, and by
the Appellate Jurisdiction Act of 1876. It is
the settleraent arrived at in consequence of those
two Statutes which is at risk if the opinions
expressed by raany noble Lords in March last
are pressed to the extrerae. Upon the Third

172 POINTS OF VIEW
xvu. Reading Debate of Lord Hothara's BUI, Mr.
Druraraond raoved that it be read this day six
months, speaking " tersely and keenly." That
veteran Tory, Sir Robert Inglis, seconded the
motion. Then Macaulay rose. No doubt his
speech made a great stir and had a great effect
at the moraent, and, to judge by the many
references to it which have been made during
the present controversy, it has had a long influ
ence upon men's rainds. The iraraediate effect
was described in an article in a contemporary
newspaper, quoted in Sir George Trevelyan's
Biography of his uncle. The romantic circum
stances in which the speech was delivered (for
it was Macaulay's flrst speech after his return to
Parliament in the previous year, and it came
after a long period of illness), the striking result,
the rejection on the Third Reading of a Bill
which had reached that stage without a division,
the sonorous language and the striking delivery,
raade it noteworthy and raeraorable. But, in
truth, to any close student of the situation, the
result ought not to have been surprising, for the
majority of the House in their hearts did not
wish the Bill to pass. The effect produced was
in no sense permanent, for, as Sir George Trevelyan
points out twenty years later, that portion of the
Judicature Bill which flnally excluded the Master
of the Rolls from the House of Commons was
carried on the motion of a Liberal Minister
" without opposition and without discussion.
' Clauses 9 to 11, inclusive, agreed to,' is the sole
notice which Hansard takes of the proceedings
which reversed the decision of 1853."

JUDGES AND POLITICS 173
Furtherraore, Macaulay's arguraents were little xvu.
raore than dialectic. He began by reciting the
faraous men who, as Masters of the Rolls, had
sat in the House of Coraraons. Then he pro
ceeded to an arguraent with which we have once
again becorae familiar, that this was " the raost
homeopathic dose that ever quack proposed for
the widest-spread raalady." If you are to ex
clude the Master of the Rolls, why not all the
Recorders and all the Chairraen of Quarter
Sessions ? Then he proceeded to another argu
raent now familiar. Why is the Master of the
Rolls to be excluded from the House of Comraons
and allowed to sit in the House of Lords ? Why,
indeed, are all the raerabers of the House of Lords
to be allowed to exercise judicial functions ?
' Think of the political power wielded in that
asserably by Hardwicke, Mansfleld, Thurlow,
Eldon, Broughara, and Lyndhurst. Then, again,
he referred to the original atterapt at the Revolu
tion to exclude frora the Comraons all persons
holding office under the Crown, and pointed out,
with perfect truth, the disastrous consequences
which would have followed had that enactment
corae into operation, both upon the composi
tion of the lower House and upon the whole
constitutional situation in the country. He
endeavoured to controvert the arguraent based
upon the irapropriety of a Judge in indulging
in contested elections and subsequently engaging
in a party struggle in the House of Coraraons.
" Party struggles, no doubt, there always will
be ; but there is an abundant and extensive
province of Parliaraentary labour that hes quite

174 POINTS OF VIEW
XVIL reraote from the contentions of parties, and in
which a great jurist can render imraeasurable
and inestiraable service, and obtain for himself
an imperishable narae."
Lastly, having for the raost part argued the
case by raeans of a series of dilemraas, he found
himself forced to adopt the proposition that " any
Judge who is properly elected should be admitted
into this House except where there is some plain
reason why that Judge should not come in here."
He saw the consequences of this absurd dogma,
and at once cut it down by exceptions so large
as to leave it practically harmless. " The plain
reason " for excluding the fifteen Judges was to
be because you cannot " continue the House of
Lords as a great Court of error, unless they are
assisted by the fifteen Judges ; those Judges
have consequently seats in it, and there you must
leave them, for it would be inconsistent with the
privileges and dignity of this House to have any
Meraber here who is at the beck and call of the
other House." The Irish and the Scottish Judges
are to be excluded because they obviously cannot
both sit in Scotland or Ireland and in the House
of Commons at the same time.
Many of the fallacies of this argument are
patent. Jekyll, Strange, Kenyon, Pepper Arden,
Grant, Leach, Copley, Pepys, and Rorailly would
have been equally great Masters of the Rolls
had they never sat in the House of Coraraons.
In the careers of sorae of thera there are incidents
which would not have occurred had they been
absent frora the House, and which do not increase
their farae as raen. Furthermore, it is not true

JUDGES AND POLITICS 175
of all of them that they engaged solely in any xvu.
" province of Parliamentary labour remote frora
the contentions of parties," and not true of any
of them that as great jurists they rendered im
measurable and inestiraable, or indeed any par
ticular, service while they held their seats.
Again, the sound arguraent deduced from the
legislation as to the exclusion of statesraen has
no relevance to the position of the Judges. The
reason why the British constitution works reason
ably well is that the Ministers of the Crown are
present in Parliament to answer there for the
advice which they tender to the Crown and for
their own actions, and, if the first thoughts of
the statesmen of the revolution had reraained
law, they would have been separated frora the
popular asserably and as secluded as is the Presi
dent of the United States. In the exercise of
the judicial function, there is no room, if that
function is to be exercised impartially, for pressure
by or fear of the popular assembly. Those are
the very things against which the Judges by
universal consent raust be protected. It raight
be better for the form of our laws if all the Judges
were occupied during their evenings in earning
iraraeasurable farae by correcting the draftsraan-
ship of the other raerabers of the House of
Coramons. But other results would follow which
the comraon sense of generations has refused to
conteraplate. When, however, Macaulay based his arguraent
on the position of the House of Lords as the
Suprerae AppeUate Tribunal, he was on safer
ground. In those days the judicial work of the

176 POINTS OF VIEW
XVII. House was performed by the Lord Chancellor
and any ex-Lord Chancellors who happened to
survive, assisted by such peers as Lord Langdale,
while he was Master of the Rolls, Lord Kingsdown,
or Lord Campbell, before he becarae Lord Chief
Justice. The heads of the Coraraon Law Courts
often held peerages, but their judicial duties in
Westrainster Hall prevented thera frora taking
any regular part in the judicial work of the
House of Lords.
There also remained the curious anomaly that
in theory every raeraber of the House of Lords
was corapetent to sit as a meraber of the Appellate
Tribunal. It is true that the practice did not
correspond with the theory. Since the case of
O'ConneU v. The Queen (1844, 11 CI. & F. p. 155),
no lay peer has taken an effective part in the
judicial proceedings of the House ; and indeed
for raany years before that date, although the
right of the lay peers to do so reraained un
questioned, the occasions upon which it was
exercised were very few in nuraber. The cases
are collected at the close of the report of O'Connell
v. The Queen at p. 425.
The proceedings in that case deserve raost
careful consideration by those who, finding no
written prohibition against an evil practice, claim
that no rule or convention exists upon the matter.
The circumstances in O'Connell v. The Queen
were erabarrassing, and the course of the pro
ceedings was such as seeraed likely to provoke
intervention by the lay peers, unless they could
be restrained by arguments based rather upon
general convenience and general custom than

JUDGES AND POLITICS 177
upon the merits of the case before the House, xvil
O'Connell and his associates were indicted in
Ireland upon a number of counts for treasonable
conspiracy, were tried at Bar in the Irish Court
of Queen's Bench after a challenge by thera to
the array, and were convicted.
They raoved for a new trial on the ground of
the admission of illegal evidence, and failed.
They then moved in arrest of judgraent in
the sarae Court and were refused.
They then sued out writs of error in Ireland
and again failed, and they then brought writs of
error in Parliaraent.
The grounds for the appeal were based in
part upon the challenge to the array — it being
alleged that the jury list " had been fraudulently
and illegally made and contrived for the purpose
of prejudicing the defendants in their trial " —
and in part upon purely technical pleas.
The legal Lords before whom the proceedings
in error were heard were the Lord Chancellor
(Lord Lyndhurst), and Lords Broughara, Denraan,
Cottenhara, and CarapbeU.
The Judges were suraraoned and their advice
was requested on eleven questions. Upon nine
of these questions unaniraously, and upon two
by a large raajority (though it should be noticed
that the rainority included Baron Parke), the
Judges upheld the judgraent below. Of the law
Lords, the Lord Chancellor and Lord Broughara
were for sustaining. Lords Denraan, Cottenhara,
and CarapbeU for reversing, that judgment.
Having regard to the position which Broughara
had assumed since Lord Cottenham entered upon
VOL. II N

178 POINTS OF VIEW
XVII. his Chancellorship, this division of opinion pro-
ceeded upon purely party lines, though each of
the peers who took part in it veiled his political
prejudices or animosities with a decent show of
black letter learning.
The situation then was this, that a Tory
raajority in the House of Lords saw a judgment,
obtained against one whom they regarded as a
factious and dishonest traitor, about to be re
versed on purely technical grounds by a raajority
of three law Lords to two, after the Courts in
Ireland and the Judges in England had, by
great majorities, pronounced the proceedings to
be regular. It is not to be wondered at that
the lay peers desired to exercise their unquestioned
right to vote. Accordingly, when the Lord Chan
cellor put the question, and the three law Lords
had answered " Content," " one or two other
peers " joined with Lord Brougham in saying
" Not content." The Lord Chancellor abstained
frora raaking any "declaration of what he con
sidered to be the opinion of their Lordships.
After a pause of sorae moments, the noble and
learned Lord again put the question in the same
terms, and with the sarae result."
In the raoraents that followed the whole
question of whether the House of Lords should
continue to exercise the functions of the Supreme
Appellate Court was in effect decided. If those
two or three Lords who had said " Not content "
with Lord Brougham had persisted in their
action, it is scarcely possible to conceive that
public opinion would have allowed the judicial
jurisdiction of the House to continue.

JUDGES AND POLITICS 179
The tactical situation was awkward. It may xvii.
be doubted whether the lay Tory peers would
have responded to an appeal from a law Lord.
Fortunately there was at hand one who was a lay
man, a Tory, and well known as a seeker of peace.
Lord Wharncliffe in the perilous tiraes of the
Reform Bill had endeavoured, though vainly, to
persuade his party to accept the inevitable. Now
TOt<} o lyipojv TrdfiirpwTO'i ixpaiveiv ¦Ijp'xeTO fi'rJTtv
Neo-Tw/J, ov Kal irpdcrQev apiarr] (jjalvero ^ovK'ri'
8<; a'<piv eij^povemv a/yoprjcraTO Kal /jbereeiTrev.
He begged his lay colleagues to abstain from
taking any further part in the proceedings. "If,"
he said, " departing frora what the practice has
ever been, noble Lords unlearned in the law
should interfere to decide such questions by
their votes, instead of leaving thera to the
decision of the law Lords, I very rauch fear
that the authority of this House as a Court of
Justice would be very greatly lessened throughout
the country. ... It is far better that the char
acter of this House as a Court of law should be
raaintained, even though the decision should, in
the opinion of your Lordships, be objectionable,
as being contrary to that of the Judges, and
although it should prove inconvenient in this
particular instance."
Lord Brougham — his impish spirit for once
subdued by the gravity of the occasion, though
not so far as to prevent hira frora describing the
decision as one " which will go forth without
authority, and come back without respect " —
seconded Lord Wharncliffe's appeal.

180 POINTS OF VIEW
XVII. Lord Campbell put the appeal upon a different
ground. He affirmed — anticipating the mis
chievous doctrine preached by Lord Finlay — that
such a distinction as Lord Wharncliffe had made
" is not known to the Constitution." Never
theless he thought that no one ought to vote
who had not attended to the arguraents in the
case and he believed that none but the law Lords
had done so.
Lord Lyndhurst then expressed the opinion that
the Lords who had not heard the arguraents would
decline to vote if he put the question again.
Thereupon Lord Stradbroke said that he had
considered the subject most attentively and was
desirous of giving an opinion with respect to it.
Lord Clanricarde said that if any noble Lord,
who had not heard the whole argument, voted,
he should as a raatter of privilege think it his
duty also to give his vote, but he thought it
infinitely better that all those noble Lords who
" are not, in the coraraon acceptation of the term
and in the usage of Parliament, qualified to decide,
should leave the House." Lord Verulam agreed
with him, and all the lay peers then retired.
The danger point was passed.
No rule or convention had existed before
O'ConneU's case, whereby lay peers were disabled
frora taking part in judicial proceedings. That
case did not establish any such rule or conven
tion, in the sense in which Lord Finlay and those
who think with hira look upon rules or conven
tions. It is unthinkable that at the present day
any lay Lord should endeavour to exercise such
a right. Yet, if any such peer were so ill advised

JUDGES AND POLITICS 181
as to do so, I and those who think with rae (and xvu.
among them I am sure Lord Finlay would be
reckoned) could not point to any Standing Order
or any other written docuraent to bar the right.
We could only appeal — as we appealed upon the
present occasion — to the coraraon-sense of the
most practical and business-like of assemblies,
sanctified by long use, and I am sure that we
should not appeal in vain.
Though the incident which I have described
reraoved once and for all the danger that the
legal decisions of the House of Lords raight be
weakened by the intervention of layraen, a
further peril reraained, owing to the nuraerical
weakness of the legal peers and the difficulty of
always finding distinguished lawyers whose faraily
circurastances would enable them to accept a
hereditary peerage. Lord Campbell indeed — when
it suited his purpose — argued that it was rather
an advantage than otherwise that there should
not be more than two law Lords in the House
at the sarae tirae, and appeared to regard the
tirae, when Lyndhurst and Cottenhara were
alternately Chancellors, and Broughara and Carap
beU hiraself made up the Court, as a golden age,
while he felt himself corapelled by duty to warn
the House of the inconvenience which might
arise to themselves " from the intervention of
a horde of legal peers. . . . Frora their morning
wranglings you may secure yourselves by absence,
but it raust be reraerabered that . . . they wUl
be entitled to bring forward whatever Bills or
Motions they please, and to take a part in debate
on all subjects, political, ecclesiastical, military,

182 POINTS OF VIEW
XVII. or comraercial. Now, my Lords, I have a great
respect for my own profession, to which I owe
so much ; but there may be too much of a good
thing. ... I ara filled with apprehension at
the prospect of a Parliamentura Doctissiraura or
perdoctura." Lord Lyndhurst actually committed hiraself
to the proposition that the conferraent of a
peerage upon Sir Jaraes Parke would be of no
assistance at all. " You do not want a Coraraon
Law Judge in this House. He is conversant
only with that part of the adrainistration of
justice in this House in which you are raost
efficient and want no assistance."
This was in the debates upon the Wensleydale
peerage, when in 1856 the Governraent en
deavoured to strengthen the legal side of the
House by the creation of a life peer. The atterapt
failed, and, having failed, was succeeded by an
endeavour to raake use of other remedies, which
would involve the abandonment by the House
of Lords of its judicial jurisdiction. One of these
attempts actually passed into law in 1873 ; and
though the Judicature Act of that year still left
the House invested with the Scottish and Irish
jurisdiction, it was inevitable that that jurisdic
tion would, when the Act had once come into
operation, speedily follow the English jurisdiction.
That atterapt also failed, though when the
eleventh hour had passed and the Act was on
the Statute Book. Then carae Lord Cairns' Act
of 1875 which restored the jurisdiction and
rendered inevitable the Appellate Jurisdiction
Act, 1876.

JUDGES AND POLITICS 183
That Act gave to the Crown by Statute the xvu.
right of creating peers for life which the Crown
had endeavoured to exercise upon prerogative
alone in 1856, and it did so expressly " for the
purpose of aiding the House of Lords in the
hearing and deterraining of appeals " (section 6).
Furtherraore, it required that an appeal should
not be heard and deterrained by the House unless
there were present three Lords of Appeal, and
it defined Lords of Appeal as raeaning the Lord
Chancellor, the Lords of Appeal in Ordinary to
be appointed under the Act, and such peers of
Parliaraent as are for the tirae being holding,
or have held, any high judicial office as defined
by the Act. The number of Lords of Appeal in
Ordinary to be appointed imraediately was two,
but provision was raade for the appointraent of
a third and a fourt^i such Lord of Appeal upon
the retireraent of certain judicial personages
named in the Act. The first two Lords of Appeal
were Lord Blackburn and Lord Gordon, and the
contingent vacancies contemplated by the Statute
occurred in 1882 and 1891, and were filled
respectively by the appointment of Lord Fitz
gerald and Lord Hannen. But even then the
nuraber of legal peers available was insufficient
for the proper despatch of the business of the
House of Lords and of the Judicial Coraraittee,
and in 1913 a further Statute gave power to
appoint a fifth and a sixth Lord of Appeal, the
persons selected being Lord Dunedin and Lord
Suraner. The story would be incoraplete if I did not
add that the confidence felt by the coraraunity

184 POINTS OF VIEW
xviL in the House of Lords as a Judicial Tribunal
is great ; and the number of cases which come
to the House has been so large that even with
the six Statutory Lords of Appeal, the Lord
Chancellor and the ex-Lord Chancellors, it would
be almost irapossible to cope with the business
were it not for other assistance. Frora tirae to
tirae eminent lawyers, who have rendered long
service to the State in a judicial capacity, or
who, after practice at the Bar, desire to be
relieved of its daily labour, have been distin
guished by the grant of hereditary peerages and,
being thus qualified, have formed an essential
part of the Court. Thus we have at the raoraent,
in addition to the Lord Chancellor, the ex-Lord
Chancellors, and the six Lords of Appeal, and
excluding the Lord Chief Justice of England and
the Master of the Rolls, whose tirae is fully occu
pied in their own Courts, a body of sorae four or
five peers to whora either the House of Lords or
the Judicial Coraraittee can look for assistance.
Twenty-two peers in all, including the six who
now hold office, have been appointed under the
Act of 1876 and its araending Acts, Nearly
forty-six years have passed since the first appoint
raent, Sorae of these Lords of Appeal had in
a previous state of existence taken an active part
in politics. Three had served in the office of
Attorney-General and two in the office of Solicitor-
General in England, one of the latter having also
filled the position of Horae Secretary. Five had
been Lord Advocates ; four had been Attorney-
Generals for Ireland, one of these having sub
sequently held the same office in England. Two

JUDGES AND POLITICS 185
had been merabers of Parliaraent but had never xvn.
held office. Seven had never sat in Parliaraent
or taken any prorainent part in political affairs.
The vast majority, therefore, of the Lords of
Appeal in Ordinary have been sound party raen.
It might have been expected, if they held their
seats subject to no rule or convention which
forbade such a course, that they would have
been as forward to support their respective
parties in the House of Lords as any lay peer,
and would have taken in the political struggles
of the Upper House the prominent part which
their great abilities and their long training in
political warfare amply qualified thera to fill.
Had they desired to do so, they raight, like those
who spoke in the debates in March, have pointed
to the examples of EUenborough or of Cairns.
They lived in storray tiraes. Political contro
versy has never been raore bitter than when the
alterations in the franchise brought the two
Houses to acute division in the 'eighties, or when
Mr, Gladstone's conversion to Horae Rule broke
up the Liberal Party, or when first the education
controversy and then Mr. Lloyd George's budgets
led to the Parliaraent Act,
Through all these storras, the Lords of Appeal
in Ordinary were silent. Isolated instances raay
be cited to the contrary, but they serve only to
eraphasise the general rule. It is impossible to
point out the raoment at which the rule became
operative. The convention seems to have sprung
into existence with the first operation of the
Statute. It is this very fact which made it possible in

186 POINTS OF VIEW
XVII. 1913 to increase the numbers of the Lords of
Appeal. The public mind had by then acquired
a coraplete confidence in the irapartiality as well
as in the learning of the Suprerae Tribunal.
Note had been taken of the fact that those who
had been politicians had put off the habit of
controversy when they reached this House, as
corapletely as if they had been raised to the
Bench of the Suprerae Court or had entered the
College of Justice in Edinburgh, And this was
alraost raore iraportant as regards the duties
which the Lords of Appeal perforraed upon the
Judicial Coraraittee than as regards their duties
in the House of Lords. The questions which
corae to the House of Lords seldora touch a
political issue, and in this country we are so well
accustoraed to the irapartiality of the Bench,
that raen are slow to attribute to a Judge the
habit of indulging in personal prejudice. But
the personalities of those who sit in Downing
Street are known throughout the Erapire only
through the reputation which they gain at that
Tribunal ; and to it there corae constitutional
questions of vast iraport, the decisions on which
touch the lives of our fellow subjects beyond the
seas in the enjoyraent of their political privileges
and the exercise of their religion. These ques
tions raust be debated before raen whose position
and whose conduct forbids any one to suppose
that in dealing with raatters before thera they
look to anything but the intellectual problem
presented. Very recent history — indeed the history of the
very debates frora which this discussion originated

JUDGES AND POLITICS 187
— furnishes an exaraple, Irish Appeals, when xvu.
the constitution of the Free State is fully estab-
hshed, wiU go to the Judicial Coraraittee. Out
of six Lords of Appeal in Ordinary three cora
mitted themselves during those debates to a
definite expression of opinion upon the raatters
at issue. No one who knows any one of those
of ray noble and learned friends supposes that,
because he holds this view or that view upon
the Irish Treaty, he would therefore be biassed
when he carae to deal as a Judge with questions
arising under it. We cannot expect that such an
opinion should be entertained by persons who do
not know thera, above all by persons who have
only recently begun to shake theraselves free of
a general spirit of suspicion of our institutions.
Yet, the Lords of Appeal in Ordinary, though
silent until recently upon political controversy,
have constantly given to the House of Lords
their best advice in raatters on which they are
raost corapetent to advise. The way in which
our business is conducted, the readiness of the
House to listen to any one who is specially fitted
to speak on any question before it, the long
experience of most of the peers, which enables
thera quickly to judge how far a speaker is so
qualified, all these things give to the Lords of
Appeal a special position in the House, and
enable them to do, and to assist the House to
do, invaluable work in dealing with the juridical
matters which come up in debate. This strength
is increased rather than dirainished by the fact
that they abstain frora general controversy.
Hence it is that any raeasure touching the

188 POINTS OF VIEW
XVII. administration of the law receives a fuller and a
wiser treatment here than conditions of debate
allow in the House of Coraraons, and that this
House has been able to initiate and to discuss
far-reaching raeasures of reforra without any
tinge of party feeling.
It raay be conceded that this practice in sorae
respects leaves the House the poorer. No doubt
the six peers who now hold the office of Lord of
Appeal could give to the House on any topic,
however controversial, the fruits of capacious
and well-stored minds set out with all the force
and grace of oratory. To be deprived of this is a
sraall price to pay for the enorraous advantage
which is obtained frora their assistance when they
intervene in non- controversial raatters and for
the reputation of austere irapartiality which they
enjoy when they sit as Judges.
There reraains the final arguraent — how then
is the position of the Lord Chancellor and of
the ex-Lord Chancellors to be explained and
defended ?
First, it raust be said that of recent years the
presence of the Lords of Appeal has enabled a
new convention to be forraed, naraely, that neither
in the House of Lords nor in the .ludicial Com
mittee should Lord Chancellors or ex-Lord Chan
cellors take part in judicial matters which affect
even remotely affairs of State. Thus throughout
the War the Prize Appeal Court was constituted
so as not to include any one who had sat as
Lord Chancellor. And next when there came up
to the House of Lords during the War a plentiful
crop of appeals on matters which concerned the

JUDGES AND POLITICS 189
action of the executive Government, neither the xvn.
Lord Chancellor nor the ex-Lord Chancellors took
any part in them. This course would have been
irapossible if the Lords of Appeal in Ordinary
had not been available to fill their places.
This arrangeraent, however, does not reraove
the theoretical anoraaly. It is easy to frarae and
difficult to refute the academic arguraents which
can be directed against the position of the Lord
Chancellor. In theory, constitutional doctrines
forbid the union in one person of the office of a
judge and the position of a statesraan. The
facts of history and the practical conveniences of
our present system furnish a reply.
In the first place, as has been shown during
the last 300 years, the continuous course of con
stitutional developraent, whether embodied in
Statute or dependent on custom, has been to raake
and to widen the separation between the judiciary
on the one side and the executive and legislative
functions of Governraent on the other. With the
exception of Lord Macaulay's Parthian fight and
Pyrrhic victory, this developraent has been un
interrupted. Perhaps no one in raodern tiraes
when fraraing a constitution would invent such
an official as the Lord Chancellor, if they had
no experience of our existing constitutional
raachinery. But 300 years of history, together
with the fact that that history has been what it
is, are the best justification for things being as
they are.
In truth, in any constitution in which there is
a separation of powers, there is always the
danger that the powers thus separated raay

190 POINTS OF VIEW
XVII. collide. The Lord Chancellor is both the buffer
and the link between the judiciary and the other
suprerae activities of Governraent. His utility in
that capacity resides in the fact that he so acts
both between the executive and the judiciary
and between the legislative and the judiciary :
that is to say, that he is not only at once a
minister and a judge, but also a legislator and a
judge. He could not combine these functions
were it not that when the exercise of the executive
power coraes to be exarained by the judiciary he
can for the raoraent stand aside and allow the
very great judicial personages, whora corapara
tively modern wisdom has created for the pur
pose, to bear the burden of that exaraination.
I have elsewhere examined the alternative
solution, namely, that the functions of the Lord
Chancellor should theraselves be separated and
that those which appertain to the executive and
the legislative should be vested in a Minister of
Justice. Put shortly, ray objections to that
solution are these. Our constitution being what
it is, it is necessary that the chief legal adviser
of the Government should be the chief repre
sentative of the profession of the law ; that the
supreme head of the judiciary should be a raem
ber of the Government ; that he who has raost
influence in initiating and guiding the policy of
the legislature in judicial raatters should be a
judge ; and that he who is by his office the
president of the College of Justice should also be
he who has chief voice in the Cabinet and in
Parliaraent upon juridical raatters.
It raust not be forgotten by those who hold

JUDGES AND POLITICS 191
the contrary view that our judicial raachinery xvn.
and our juridical conceptions differ essentially
from those of continental nations. A systera in
which the judicature is a branch of the Civil
Service, and in which there prevaUs the idea of
adrainistrative law, may suit well, indeed may
require, arrangements for control which differ
from ours. But essentially the distinction is
between a country where a statute operates upon
a body of common or custoraary law, and one in
which at a coraparatively recent tirae a code has
been set in the place of everything which pre
existed and reraains, in theory at least, rigid and
inflexible except by direct araendraent by the
legislature.

XVIII
A NEW PARTY
I. — The Bye-Elections and After
XVIII. The recent bye-election at Spen Valley has
attracted great attention, but all the coraraents
upon it have not been equally intelligent.
It is acclairaed by one as an iraraense triumph
for Labour, by another as a supreme blow to the
Coalition. Rightly analysed it is neither.
It is not a triuraph for Labour, for it will not
be disputed that if the supporters of Colonel
Fairfax and Sir John Siraon had corabined they
could have defeated Mr. Myers.
It is not a suprerae blow at the Coalition,
because it has asserted, with a degree of emphasis
which cannot be over-estimated, the final decease
of the Liberal candidates for Parliament who
withhold allegiance from Mr. Lloyd George.
Of such candidates Sir John Siraon, with the
exception of Mr. Asquith, was the strongest.
Of promising constituencies for such candidates
Spen Valley was the most promising.
Sir John Simon was the first in the field by
raany days. He completely captured the whole
192

A NEW PARTY 193
of the extraordinarUy efficient local organisation xvm.
which the late Sir Thoraas Whittaker left behind —
hira. Yet he altogether failed to defeat Labour,
and did not very greatly exceed the total of
votes recorded in favour of Colonel Fairfax — a
stranger to the constituency and a novice in the
arts of electioneering.
Spen Valley has many messages which are not
encouraging to those who wish well to the Coali
tion ; but it brings a knell of despair to those
who drearaed that a future in English political
life still awaited Mr. Asquith and his followers.
To-day this simple truth is unchallengeable.
For a year after the election which swept them
away not a single one of the leaders of that Party
can offer himself for election to one constituency
in these islands with the faintest prospect of success.
One and all they must either join the Labour Party
or join Mr. Lloyd George.
Sorae will do one, sorae will do the other, but
in any event the result of Spen Valley raay be
expected to give ground for hesitation to those
Coalition Liberals in the House of Coraraons who
were faltering in their allegiance to the Prirae
Minister. They raay think that his urabrella is leaky,
but they will not fail to observe that its shelter
is dryer than the shower which is in progress
without. The Labour Party has rauch more legitimate
grounds for elation than Spen Valley.
Broraley was iraportant and full of warning
to all who are not Coraraunists. In its way, the
VOL. II o

194 POINTS OF VIEW
xvm. Hertfordshire election was only a little less
startling. No one who is not wholly inattentive to the
signs of the times will deny that there is a reason
able prospect that a Labour Government raay
be forraed in this country within the next few
years. I by no raeans predict that it will. I merely
point out that no one can disraiss the possibility.
A caution is very necessary, for many sup
porters of the Labour Party are talking as if the
luggage of their leaders was already on its way
to Downing Street.
Such is by no means the case. The Labour
Party has up to the present made progress largely
— though not exclusively — because no organised
and powerful Party has been engaged in calling
attention to its deficiencies.
First the War, and secondly the preoccupations
which followed the Arraistice, and thirdly the
coraparative uniraportance up to the present of
the leaders of the Labour Party, have prevented
any detailed exposure of the innuraerable weak
points in their arraour.
We hear, for instance, rauch of " Labour,"
little of " the Labour Party."
They can, if they choose, call themselves the
Labour Party, but who gave them ihe right to talk
as if they and they alone represented Labour ?
Do they represent the raillions of unorganised
labourers who are not members of any trade
union ?
Do they represent the new woraen voters
whora, with alraost ill-concealed antagonisra, they

A NEW PARTY 195
are attempting to exclude from an equal industrial xvm.
position with raale trade unionists ?
Do they represent the discharged soldiers and
sailors to whora to-day, in hundreds of cases, as
an act of deliberate policy, they deny the oppor
tunity of assimilating theraselves araong raany of
the raost highly-skUled trade unions ?
And when we are asked to shiver at the
prospect of an oranipotent Labour Party we shall
not fail to ask the question, " Under whose banner
are our new leaders to rally ? "
Will they be asserabled in the respectable but
soraewhat drab tabernacle over which Mr. Arthur
Henderson presides, or will they be found with
red banners proclairaing our first Soviet beneath
the statue of Nelson in Trafalgar Square ?
All these questions will be asked in the near
future, and all will require an answer.
I am not among the nuraber of those who
believe that the Labour Party can be perraanently
excluded — or even for a long tirae be excluded —
from its share in the Governraent of this country.
Nor do I desire its exclusion.
But those of its leaders who think that the
battle is already won are living in a fool's paradise.
The first eleraentary truth which they will do
well to grasp is that with which I have already
dealt — that they do not represent Labour as a
whole, and that they never will represent Labour
as a whole.
I can tell thera that Mr. Winston Churchill,
for instance, has won raore elections than Mr,
Sraillie has lost in Labour constituencies. And the
claim is no inconsiderable one.

196 POINTS OF VIEW
xvm. It raay even be that Mr, Smillie's ill fortune
in winning the approval of a raajority of the
electors in purely industrial constituencies accounts
for his well-known preference for raethods which
are to-day only approved of in Bolshevist
Russia. These and many other considerations to which
I may ask your leave to recur in later articles,
will be urged upon the electors of these islands,
and will certainly be considered by thera before
the day arrives in which we shall salute Mr.
Robert Williaras upon the Treasury Bench.
But they cannot, in my judgment, be successfully
urged by an invertebrate and undefined body such
as the present Coalition.
That instruraent was of adrairable value during
the War. It has passed successfully through raany
great crises in the twelve raonths that followed
the Arraistice.
But it is as ineffective an instruraent for the
purpose of fighting our English Coniraunists as
it was an effective instruraent for fighting the
Gerraans. The task of meeting the new Party in the political
arena cannot be effectively discharged except by a
single Party emerging with definite purposes and
under one banner.
For such a task the formation of a National
Party is, in my judgment, indispensable. Nor do
I think it can long be delayed. The first con
dition which is necessary, if a political corabina
tion is to raaintain its strength, is that it should
be both organised and disciplined. Considerable
analogy exists between parties and armies. With

A NEW PARTY 197
loyalty and goodwill Allied Arraies have success- xvm.
fully sustained the shock of battles in raany
carapaigns. But they have always been at a
disadvantage when placed in antagonisra with a
single and homogeneous enemy. It is not only
in war that unity of coraraand counts. However
completely in agreement the raerabers of a Coali
tion may be on matters of principle, they are
always exposed to the suspicion that their policy
is determined by a series of shifts and coraproraises.
Now every Governraent, Coalition or not, raust
constantly comproraise ; but where a unified
Government coraproraises, little or no adverse
coraraent follows. When a Coalition coraproraises
it is accused of bad faith. And such accusations,
if generally or very largely believed, are a source
of much weakness to Governraents.
I shall ask your leave in a future article to
develop at greater length the reasons which have
led rae to this conclusion, the grounds upon
which I think that the raoraent for the decision
has arrived, and the general features upon which,
in ray judgraent, the new National Party should
be organised.

II. — The True Position of the Coalition
The series of soraewhat obvious conclusions
exhibited in the preceding paragraphs have
attracted a degree of attention which raust, on
the whole, be pronounced excessive. For I wrote
nothing, and predicted nothing, which ought to
have caused the slightest surprise to any one

198 POINTS OF VIEW
xvm. who has studied with ordinary observation the
trend of recent political developraents.
Great Britain has now been governed by
Coalitions for a period of nearly seven years. So
far as I know every raember of the Coalition
Government is of opinion that the iraraense
national problems which now await solution
require the continued association, whether in
office or opposition, of the men who have worked
together under Mr. Lloyd George.
I know of none araong ray colleagues who is
of opinion that the time has come or will ever
corae to revert to pre-war politics. And the
reason is obvious.
Pre-war politics have disappeared. They no
longer divide raen's minds or afford the material
for acute antagonisms. Look at the battle-cries
at our modern by-elections ! The rhetoric of
the candidates and the attitude of the voters
raake it plain that we shall for the future travel
paths raore vital and raore fierce than those of
the past. For twenty or perhaps for fifty years
our statesraen raust busy themselves with en
tirely new probleras, and the new electors will
wave impatiently aside, as if they belonged to the
Victorian age, those who try to marshal the dying
forces of extinct controversies.
I cannot more clearly illustrate ray meaning
than by pointing out that I recall no single
occasion, since I became a colleague of Mr. Lloyd
George, on which any decision of the Government
has raarshalled Ministers upon the lines of their
original political attachraent.
This observation ought to dispose of much

A NEW PARTY 199
of the foolish talk of the opportunisra of the xvm.
Coalition and of the impossibility of men who
hold, as it is suggested, views fundamentally
irreconcilable reaching decisions upon the basis
of principle. No difference of political principle, in relation
to the life and raoveraent of the present, divides
one section of the Coalition frora its other sections.
These reraarks are clearly eleraentary, and I
make them only in order to draw inferences from
thera which are equally indisputable by any
candid person.
If it be true that in the view of Coalition
Ministers their association should be raaintained,
either in office or in opposition, they would be
foolish indeed if they did not raost carefully
consider how that association could be raade
fruitful, effective, and successful.
There is only one way. Political parties,
whatever be their genesis or their narae, are
raaintained under deraocratic conditions in office
and retain influence in opposition so long, and
only so long, as they can excite enthusiasra and
add to, or at least raaintain, the nuraber of their
adherents in the country. Mere raerit — even if
it be assuraed — never yet raaintained the vitality
of a political party. It is, therefore, axiomatic
that if the Coalition is to reraain powerful it raust
organise itself with a degree of thoroughness
coraparable to that which is shown by the parties,
or the party, which challenge its existence.
And when I speak of the Coalition, I raean,
of course, the Coalition reinforced, as it will be,
by many men of moderate views, who will flnd

200 POINTS OF VIEW
XVIII. theraselves driven by the irapulsion of the changes
which lie in front of us to join its numbers and
contribute to its strength.
Many such men are watching attentively to-day
to see what happens to Mr. Asquith.
I observe that Mr. Asquith has taken some
exception to the prediction I raade not long
ago that none of the leaders of his section of
the Liberal Party could secure re-election.
Had I known that Mr. Asquith was able to
stand for Paisley I should not have raade this
stateraent, for I have far too high a personal
respect for hira to wish to erabarrass hira at a
critical raoraent. But I raade the prediction,
and it will stand, unless and until it is refuted
by the event.
But even if the reputation and long public
services of Mr. Asquith secure his return for
Paisley, the general position will reraain alraost
unraodified. His less iraportant followers will
be unable, lacking his advantages, to reproduce
his success.
In this connection Lord Haldane's recent
interview with the representative of the Daily
Herald is full of interest. My noble and learned
friend has thrown up the sponge with a vengeance.
" The future," it seeras, " is with Labour."
Labour dwells upon the heights, wherever they
raay be. And through the whole interview the
kindly but sorabre tone is raaintained of one
who coraes to bury Liberalisra, not to praise it.
Lord Haldane's policy raay perhaps be under
stood without the eraployraent of a very ex
hausting analysis. He wishes to sraother Labour

A NEW PARTY 201
with kindness— or with brains. But I suspect xvm.
that the brains of which he offers a rich endow-
raent to the "High Tabernacle" are those of
the old Liberal Intellectuals. Lord Haldane,
looking upon the Labour Party as the Tiger, is
not unwilling to repeat the risk of the young
lady of Riga. It raay indeed be conceded that
the tiger, which would inconspicuously accora-
raodate ray distinguished and noble friend, would
be a very large one. But perhaps this one is
very large.
Does any one think that adequate efforts are
being raade in constituencies to-day to defend
the causes in which we believe ? If he does,
he lives in the clouds, and has no knowledge
of the world in which, even at this raoraent,
convictions, which will be pregnant with con
sequences, are being forraed.
At this very raoment when I write, young,
plastic, and impressionable rainds are drinking
in false messages because these are the only ones
they hear.
Look round at the constituencies of to-day.
In every industrial centre the Socialists are busy.
You will flnd thera at the street corners of
our large towns uttering, and indeed bellowing,
econoraic sophistries. Often you will find at
these raeetings (I listened to one such a few
nights ago) the whole existing basis of society
raost enthusiastically and plausibly assailed. The
capitalist systera, which can be defended by
arguraents both clear and intelligible, goes ab
solutely by default. Greed, envy, and raalice
are daily and nightly inculcated.

202 POINTS OF VIEW
xvm. Does any one really believe that this new and
untried electorate can be persuaded of a doctrine
which, though it is sounder, is far less appealing,
by organisations which in coraparison with those
of others are conteraptible, or by exertions which
lack the stiraulus of a unified enthusiasra ?
How is the Coalition raeeting its eneraies
to-day ? The leaders have in reality effected a
fusion of view, but no siraplification or adaptation
has been atterapted of their pre-war equipraent
in the country. Where there should be unity
in the constituencies, alike of organisation and
effort, there is disparity and raisunderstanding.
Where there should be one organisation there
are two. The minds of the local organisers in
the constituencies are still far too intent on
maintaining a separate interest, which in the
actual conditions of the moment has ceased to
possess the slightest iraportance, to rally on
behalf of a cause which will engage the rest of
our lives, and upon the ultimate solution of which
the greatness and even the existence of the
British Erapire depends.
Some of those who have criticised what I
wrote have spoken as if I were hostile to the
Coalition. Such a misconception is, of course,
ludicrous. / have been a member of every Coalition Govern
ment. I am responsible for everything that has
been done and for everything that has been omitted.
I say nothing of the events which preceded the
election. History will judge of our part in that
fateful period in the developraent of the world.
But I raake this claira, in relation to the twelve

A NEW PARTY 203
months which have followed, that no Govern- xvm.
raent in the history of this country has ever
been confronted with a series of raore bewildering
and insoluble problems.
The demobilisation of the Army and the
Navy, the resettleraent of service raen in civilian
life, the Peace Conference, the financial problera,
the police strike, the general spirit of hysteria
and unrest which is rife in the coraraunity, the
Irish tragedy, the situation of Europe, and of
the world as a whole — all these have presented
probleras transcending infinitely in difficulty and
in subtlety the problems of the War. For,
during the War, if your mind was made up, all
that you had to do was to organise everything in
the nation which could be contributed to victory.
This was exhausting, but it was not complex.
Tasks of the raost infinite coraplexity await our
Governraent in the next few years.
The individuals coraposing the present Coali
tion Government may or may not be as adequate
(or as little inadequate) to these problems as
the raerabers of a different party able and willing
to take their place. If the country decides not,
they can be, and in due tirae will be, turned out.
But they wUl most certainly be turned out if
they expose themselves unnecessarily to incon
veniences and disadvantages which have never
confronted any previous Adrainistration.
Given a fair opportunity, I ara certain that
the constituencies, as a whole, will pass judgraent
upon the achieveraents of the Governraent raore
generously than its opponents iraagine, or than
recent by-elections would suggest.

204 POINTS OF VIEW
xvm. I myself have no doubt that if a plebiscite
were taken at this moment, of the British
nation, in order to determine who should becorae
Prime Minister of the country for the next five
years, the choice would fall upon Mr. Lloyd
George. Can any one suggest another narae ? Would
it be Mr. Asquith, Lord Salisbury, or Mr. Clynes ;
Mr. Rarasay Macdonald, Lord Robert Cecil, or
Mr. Thoraas ?
I ara satisfied that the coramunity, as a whole,
has formed a view of the resource, the courage,
the resiliency, and, above all, the patriotisra of
the present Prirae Minister, which is the greatest
asset of the Coalition.
But if this be true, how ought the Coalition
to set its house in order so that it may corapete
upon equal terras with its corapetitors ?
As a fighting force in the constituencies, it
is to-day, as I have already said, what every
Coalition in English history has always been —
it is invertebrate. It is ineffective in attack ;
it is unconvincing for the purposes of defence.
It lets every case go by default.
In the old days the Unionist, the Liberal, and
the Labour Parties all excited enthusiasras, and
gained and retained ardent partisans. Workers
in the constituencies find it hard to raake the
idea of a Coalition personal or real, in the sense
of a party in whose behalf they raay labour, as
they laboured for their several parties in the
past. No one is specially concerned to defend
it and every one is very specially concerned to
attack it.

A NEW PARTY 205
This state of affairs constitutes a grave menace xvm.
to the State. 
The Labour Party to-day is infinitely less
united upon fundaraental principles than the
Coalition. Its extreraists, who are very powerful,
desire a coraplete subversion of the existing basis
of society. It is only united for the purposes
of attack ; but it will most assuredly be able
to corabine in order to carry out scheraes of
Socialisra which would destroy in twelve raonths
the whole fabric of British credit.
That it is necessary to fight such a party
would seem to me to be elementary.
I do not indeed require Lord Robert Cecil's
admonition that it is absurd to forra a party to
fight Labour, but I affirm that it is necessary
to form, upon the raost effective lines available,
a party which will resist the pretensions and the
political airas of the present Labour Party.
Does Lord Robert Cecil deny this ?
It is only necessary for rae to add that in ray
opinion a coherent body of political doctrine
exists which will enlist the support of the great
raajority of the country, and which raay easily
be brought into touch with the present and
future requirements of the nation.
And the doctrines to which I refer are doc
trines which, without any sacrifice of principle,
could be embraced by those who at present
support the Coalition.
It would indeed be a superficial error to
underrate the strength of the appeal which, when
the time coraes, the leaders of the new party
will be in a position to make to the constituencies.

206 POINTS OF VIEW
xvm. We have finally enfranchised the Nation. We
were responsible for the fortunes of the Erapire
during the fateful and decisive years of the War.
At the Peace Conference, whatever errors were
raade, we gathered for the Empire the fruits
of victory. We carried the country, during the
twelve months which followed the Armistice,
through a period of crisis and unrest the
degree of which is imperfectly realised to-day,
but which was comparable in gravity to that
which faced us in a critical year of war. We
are now, araid incredible difficulties, addressing
ourselves to the work of reconstruction upon
lines which are not seriously challenged by any
of our political opponents.
The country in ray judgraent has not forgotten,
and will not forget, these exertions. But the
record of achievement and the prospect of future
effort will never be explained and made clear by
divided organisations. Unity of coramand, unity
of organisation, and unity of name are all in
dispensable. If you are good enough to afford me the
opportunity, I shall in the future, in a final
article, atterapt to state, in a series of generalities,
the points which raay serve as a rallying ground
for the National Party of the future.
And may I perhaps close this article with a
prediction ?
The formation of such a Party may easily be
postponed. It raay be postponed too long. It
may be called a National Party, a Constitutional
Party, or a People's Party.
But even if it be postponed ; by whatever

A NEW PARTY 207
name it be called, all those who have criticised xvm.
rae, except those who belong to the Sociahst
Party, will within five years — in office or in
opposition — find theraselves, as I shall, araong
the roll of its merabers.

III. — The Policy of a New Party
I said in ray last article that I should atterapt
to collect in a final article a series of generalities
which raight serve as a rallying ground for the
National Party of the future.
In such a case, if agreeraent be possible upon
general principles, disagreeraent upon details is
unlikely. The first object which will occur to the raind
of every thinking raan is the raaintenance of
peace and the security of the Erapire.
Urgent as are the doraestic probleras which
crowd upon us, the experience of the last five
years shows how inexorably raistakes in foreign
policy here or abroad raay affect the personal
life of every man, woman, and child in the king
dora. We are, in the first place, I believe,
deterrained not to fritter away the fruits of an
iraraortal victory. The Treaty of Peace may be
raodified. Its substantial results raust reraain.
In the forefront, therefore, of the programme of
the National Party I would put a sane foreign
policy, the support of the League of Nations as
the security for peace, the strengthening of good
relations with all our neighbours — and especially
with our Allies in the late War — and last, but
not least, the maintenance of a Navy and an

208 POINTS OF VIEW
xvm. Army which wiU secure the Empire, should the
 League of Nations faU, against the possibility
of successful attack from without.
There can be no substitute for the national
spirit, even in the League of Nations.
In the last resort the Erapire must look to
itself, and it must never lose the habit of so
looking. The National Party, as I conceive it, is pre
eminently fitted to sustain such a policy. It
will certainly have nothing to do with aggression.
On the other hand, it will not be tempted by the
crazy drearas of pacifists and Bolshevists to
throw down the national defences or to provoke
other nations into hostility by arabitious or ill-
considered scheraes for proraoting international
brotherhood according to the principles of the
" Internationale." Indeed, I can conceive of no raore danger
ous experiraent than to entrust the complicated
and highly dangerous business of international
relations, impinging, as they do, on national pre
judices and interests of a raost intricate kind,
to the inexperienced and slapdash raethods of
sorae of those who now pose as the leaders of
the Socialistic Parties. Who could feel the
slightest confidence in the future of the Erapire
if the Socialist Party were placed in power to-
raorrow ? How rauch do the Shop Stewards
care about the Erapire ? Mr. Clynes cares much
and understands rauch. So does Mr. Hodge.
But what will be the extent of their influence
over the powerful and sinister forces which
before our eyes are deriding alike the dynasty

A NEW PARTY 209
and the Empire, which looks to the dynasty as xvm.
the expression of its coraraon personality ? What
would be the policy of the Labour Party in relation
to the problems afforded to-day by India and
Egypt ? Is that Party prepared to support the
claim of an Irish Republic ? The truth is that
at the present moraent the Labour Party cannot
declare, and could not carry out, a positive
programrae. It is strong only in opposition.
Upon a policy of snarling criticisra all can agree.
There is little other agreeraent.
What we in Britain want is not adventure
abroad, whether it be capitalist adventure or
Socialist adventure, but peace and sensible re
lations with all our neighbours throughout the
world. And when I say all our neighbours, I
do not exclude Gerraany. To expect Gerraany
to pay indemnities, and at the same time to
refuse to trade with her, is, of course, absurd.
In the second place, I would put the consolidation
and development of the Empire.
The War has transformed the Empire. It is
no longer a cluster of self-governing colonies and
great dependencies centring about the Mother-
country. It is, on the one hand, an association
of free and equal nations, and, on the other,
the greatest instrument for teaching democracy
and progress to the backward raillions of mankind
that the world has ever seen.
It was the united British Erapire that really
won the War. Great Britain could never have
carried the treraendous burden of war in France,
in the Balkans, in Turkey, in Africa, and in
Mesopotamia by itself.
VOL. II P

210 POINTS OF VIEW
XVIII. It was the splendid co-operation of Canada,
Australia, South Africa, New Zealand, and India
that raade victory possible. We raust not let
the unity which thus preserved the liberty of
mankind in war be dissolved in peace.
Yet if we are to do this the constitution of
the Erapire raust be adapted to give the sarae
raeasure of control and responsibility to the
Dorainions in its coraraon affairs, on absolutely
equal terras, as is enjoyed by Great Britain.
On the other hand, if we are to deal with the
raoveraents of unrest which raanifest theraselves
araong the less advanced races of the Erapire,
we raust encourage a steady developraent both
of deraocracy and responsibility araong thera,
yielding neither to the appeals of those who
would go too fast nor to the fears of those who
would go too slow.
This great task I believe the National Party
is also erainently qualifled to perforra. It will
include in its ranks large numbers of people who
have had a practical interest in Imperial affairs,
who have taken their part in the work of govern
ment or in trade and comraerce within its bound
aries, who recognise the difficulties of the problem,
and who will therefore not be caught by visionary
dreams either of the rapid consolidation of the
Erapire or of the iraraediate possibility of self-
deterraination among its backward parts.
The Authority of Parliament. — It will be the
duty of the National Party most jealously to
maintain, and even to increase, the authority
and prestige of Parliaraent. In these strange
days, and under our most comprehensive fran-

A NEW PARTY 211
chise, influential men in the Labour moveraent xvm.
are openly disparaging, deriding, and undermining
the reputation of Parliament. One tells us of
direct action ; another, even bolder, points to the
Soviet as the instruraent of the democratic will.
It is necessary to hold very plain language
in relation to such menaces. Unless deraocracy
is a vain dreara, the House of Coraraons is be
coraing raore and raore the perfect mirror of the
constitutionally expressed desires of the nation.
The adoption of Proportional Representation,
most stupidly delayed and obstructed, will raake
it as perfectly representative of the constituencies
as any Parliamentary Asserably can be. It will
fall to the National Party to charapion this free
and great asserably against the forces, whatever
they raay be, which are either openly or insidi
ously atterapting to underraine its influence and
position in our constitution,
Necct there is the question of Ireland. Of all
probleras there is none which it is raore urgent
to settle than the Irish question. It raakes
difficulties at home, in America, and in the
Dorainions, In deaUng with it, I would abide firraly by
the three principles laid down by the Prirae
Minister in his recent speech on Ireland, First,
that Southern Ireland must no longer be denied
self-governraent ; second, that the solid anti-
Horae Rule population of Ulster must not be
forced under a Dublin Parliament against its
will ; and third, that the secession of Ireland
or any part of Ireland from the British Empire
must be resisted to the end.

212 POINTS OF VIEW
xvm. I believe that these principles will be accepted
by all those who I think are likely to become
members of the National Party. What effect
can be given to thera raust, of course, depend
in large measure upon local developments in
Ireland. The near future will show whether there is
the slightest chance that raoderate opinion in
Ireland can even at the eleventh hour reassert
itself. If it cannot ; if the last word of an
overwhelraing raajority in the South and West
of Ireland is to be the pistol of the assassin,
corabined with a resolute adherence to the claira
for separation, then indeed dark and bloody days
await us. If the atterapted settleraent succeeds,
the friends of this country will everywhere re
joice. If it fails, through no fault of ours, we
shall resist secession as the United States resisted
it — ^that is to say, to the last raan and the last
sovereign^ And the test of our ability to raain
tain order in Ireland may well prove to be the
test of our claim to be the trustees of civilisation
in the world.
Finally, there remain all the questions which
corae within the corapass or the phrase " doraestic
affairs." Broadly speaking, I would say that the watch
word of the National Party should he " reform,"
not " revolution,'" and " individual liberty " rather
than " governmental control."
The Socialist Parties are so dissatisfied with
the existing order of society that they consist
largely of people in a hurry, who are zealous to
smash the existing system before they have really

A NEW PARTY 213
drawn up the plans for remodelling it. That is xvm.
perhaps natural.
Their leaders are largely men and woraen who
have been in constant and poignant touch with
the undoubted evils of the existing order — evils
such as unemployraent, low wages, high prices,
bad housing, overwork, and so forth, which it
raust be the first object of the National Party
to remedy.
But just by reason of the fact that they have
been so close to the evils, they fail to realise
how difficult and how coraplicated are the causes
which have produced thera, and how slow and
how delicate the work of rebuilding must neces
sarUy be if it is to produce better conditions in
the end.
The Bolshevists have made their experiment
in Russia. Whatever we raay believe about
stories of atrocities, one thing is certain : that
practical experience has forced the Bolshevists
to abandon raost, if not all, of their idealist
scheraes for regenerating mankind.
Theories and ideals have a curious habit of
dissolving in front of hard facts and human
nature ; and raodern society has really grown
out of the facts of the world and of huraan
nature as we find thera. No doubt raany of
these facts can be changed, though it will take
tirae. No doubt, also, huraan nature can be
changed, and can be iraproved, but that also
takes time.
But if you start out to reform society while
leaving facts and human nature the same, you will
end by finding out that the new order in tiie end

214 POINTS OF VIEW
xvm. bears a resemblance almost uncanny to the old,
though it may be labelled in a different way.
When the veU is' flnally lifted from Bolshevist
Russia, I venture to prophesy that for all their
sufferings, for all their struggles, things at the
end will not be so different as we should expect
from what they were at the beginning.
I ara rayself one of those who believe ardently
in reforra. There are countless things in this
old land of ours which urgently require improving.
We need better education, better agriculture,
better transportation, better and raore plentiful
houses ; and great, though soraetiraes disap
pointingly slow, steps are now being taken to
provide these things.
But the question which overshadows all others
for the moraent is the industrial question, the
problera of capital and labour, of bringing about
an equitable distribution of the power and proflts
of industry between eraployer and employed,
while keeping down prices to a level well within
the reach of standard salaries and wages.
It is in this field that the National Party will
have a special role to play as against the Socialist
Parties. There is no doubt that with goodwill and good
organisation and hard work, we can give everybody
a better time than they had before the War, and
can mitigate the inequalities in wealth and power
which lie at the root of so many of our industrial
and social probleras to-day.
As I have said, the National Party would
stand for reforra, reform as rapid as is compat
ible with safety, reforms along the lines we have

A NEW PARTY 215
witnessed in the past three years, with its steady xvm.
rise of wages, its Whitley Councils, and, as in
the case of railways, the adoption of the principle
of associating the eraployed with the management
of the railways theraselves.
If only we could bring down prices — a raatter
which depends far raore on foreign policy, and
therefore upon the wise handling of our foreign
relations, than anything we can do at horae — the
condition of all classes of the people in this country
would immediately become more prosperous.
But the National Party would raost vehe-
raently resist the teraptation which has beguiled
Russia to try to bring about a raUlenniura by
revolutionary and catastrophic change.
It would endeavour to save the country frora
passing under the guidance of revolutionaries
through that terrible wilderness of distress and
disorder, for no object which could not be better ^
obtained by raore sober and less bloody raeans.
It would in particular resist the mad desire of
the Socialist Parties to nationalise everything, to
convert the whole nation into an army of officials
debarred from enterprise, depending for promotion
on higher officials, and controlled and regulated from
morning till night.
There are certain national services which can
best be nationally owned and run, but the vast
raass of national business can best be conducted
by the individual citizens theraselves.
The ideal State is that in which the individual
is so well educated and so self-sufficient a citizen
that the life of the coraraunity runs itself with
the least possible organisation frora the top.

216 POINTS OF VIEW
xvm. That, at any rate, is the Anglo-Saxon ideal. The
opposite is the Gerraan ideal, in which every
citizen is organised for sorae function under the
continual discipline of an array of red tabs.
It only reraains to add a brief word upon the
subject of tariffs. The general principle was
clearly indicated by Mr. Asquith when he led
the first Coalition.
We cannot and we will not repeat the errors
of the past. We have reconquered econoraic
freedora, recognising, as Mr. Asquith and his
delegates at the Paris Conference realised, the
errors and the tragic, omissions of which we were
guilty in pre-war days.
But we shall be honest enough to realise that
the present collapse of European finance and
the bewildering kaleidoscope of world exchange
present a situation in which dogmatisra is ludi
crous, and a spirit of patient enquiry indispensable.
These, then, are the general principles upon
which I think the National Party raight be
founded. It would be a party corabining raany of the
greatest traditions of our past with very noble
aspirations for the future.
It would, above all, be a party whose pro-
grararae would adapt itself to the natural desires
and habits of the iraraense raass of our fellow-
citizens, men and women, who are chiefly anxious
to be allowed to manage their own lives in their
own way, but are ready to take their full share
in maintaining the honour and progress of their
country and in proraoting the well-being of their
weaker or less fortunate fellow-citizens.

A NEW PARTY 217
A Letter from Lord Birkenhead to Lord xviii.
Ampthill, who objected that the Term
" National Party " had already been
Appropriated.
21st January 1920.
Dear Lord Ampthill, — I received the letter
which, as Treasurer of the " National " Party,
you addressed to rae in Paris, and a copy of
which has already appeared in the Press.
I was, I confess, genuinely unaware that the
" National " Party had survived the General
Election. You coraplain in a letter to the
Times — I do not know how justly — of a
Press boycott against your raoveraent. It is
certainly true that, whatever the explanation
may be, I do not recall any reference to it in
Parliaraent or in the Press since the last Election.
And, if I may say so without offence, the
fortunes of the Party at that Election were
hardly crowned with such a degree of success
as would obviously entitle its merabers to the
raonopoly of a soraewhat iraportant English ad
jective. There are, I ara now inforraed, in the
House of Coramons, at the present moraent, two
raembers of your Party, Brigadier-General Page
Croft and Sir Richard Cooper. But my friend
Sir Richard Cooper, though previously announced
as belonging to it, did not, I believe, think it
prudent to stand at the Election as a raeraber
of your Party. On the contrary, he ran — unless
I ara raisinforraed — as an Independent Unionist.
I have no means of checking your estiraate that
100,000 votes were given to your candidates in

218 POINTS OF VIEW
xvm. the course of the Election. But perhaps you
can inform rae whether the votes given to Sir
Richard Cooper were included in that nuraber ?
In any event, your claira, even if well-founded,
would appear to be soraewhat raore modest than
the title of your Party. It would, indeed, be a
strange result if a Party represented by a single
meraber in the House of Coramons, and so far
as I know by no meraber in the House of Lords,
who takes part in the Debates of that Asserably,
except yourself, could not only describe itself as
a " National " Party, but could deny the narae
to a Party which might consist of hundreds of
merabers of Parliaraent. To test the raatter a
little further, suppose that with the lapse of
tirae the only two merabers of the National Party
left in the whole country were yourself and
Brigadier- General Page Croft. Would you still
think it reasonable to deny to other and larger
combinations the right to use the adjective
" National " as descriptive of their aims ? And
you raust allow rae (again I hope without offence)
to add, that it is no answer to this question to say
that those who wish to call theraselves merabers of
a National Party can join your Association. They
raay dislike your organisation or your raethods.
I know nothing of either, so that I raay indicate
this risk without provocation. Equally they
raay prefer other leaders to yourself and Brigadier-
General Page Croft.
I hope that you will forgive rae if I do not
answer the questions which you are so good as
to put to rae with reference to my views upon
the points supplied to me under the name of

A NEW PARTY 219
your policy. I have other opportunities which xvm.
I prefer to use of raaking my views upon public
matters plain.
I trust that I have not given the impression
in this letter that I attach undue importance to
adjectives or labels. They have, in fact, con
siderable iraportance, but other raatters, as you
are well aware, are far raore fundaraental. I
ara sending this letter to the Press.
Yours sincerely, Birkenhead.

XIX
THE RECONSTRUCTION OF CIVILISATION
A Speech delivered in welcoming the
Delegates at the Opening of the London
Congress of the International Chamber
OF Commerce, on Monday, June 27, 1921.
^^- Mr. Chairman, Ladies and Gentlemen, I attend
here to-day, as you will have gathered from
your Chairman's observations, to discharge a
simple duty, and I shall discharge it with the
brevity proper to one who speaks before those
more detailed business discussions take place
which are of course the proper and priraary
concern of such a Conference as this. My duty
is, on behalf of the Government of which I am
a member, to afford a hearty welcorae to all
those gentlemen from other countries who at
this moraent have corae to co-operate with our
own business raen in the probleras which await
and will presently receive your attention. The
Governraent of this country raost warmly wel
corae the presence of our foreign guests here for
the purpose of this Conference, and will give
every assistance that is in its power now or here
after for the purpose of your discussions. It
220

RECONSTRUCTION OF CIVILISATION 221
would, indeed, be very surprising if the Govern- xix.
raent of this or any other country did not welcorae
with enthusiasra the contribution which you are
willing to raake — and, as we hold, are corapetent
to raake — to repair the existing situation of the
world. I have made it ray business to acquaint
myself as far as I can with the credentials of
those attending this Conference on behalf of the
principal trading nations of the world. It is a
circumstance of no sraall encourageraent to those
who would gladly draw a hopeful augury for the
future frora your discussions, that each of these
nations is represented by so raany raen who in
their own countries occupy business positions
of the greatest influence and experience ; and I
am especially encouraged to notice that many
of those who are present for the purposes of this
Conference either occupy to-day or have occupied
extremely influential positions in the work of
their own national Charabers of Comraerce, be
cause, after all, the work which the International
Charaber of Coraraerce has to perforra is a work
which wUl receive the greatest possible assistance
frora the labours and the experience which have
been reached by each Charaber operating in its
own country.
Now, what are the difficulties existing at this
raoraent which have led to the constitution of
an International Charaber of Coraraerce, and
what are the services which, without undue
optiraisra, we raay reasonably hope that such a
body raay render, not to the Old World or to
the New World, but to the world in its existing
situation viewed as a whole ? In the first place

222 POINTS OF VIEW
xix. it is a contribution which business men can make
in a special degree, that in considering these
matters they can divorce their minds frora the
raany harapering considerations which necessarily
restrict the outlook and in raany ways actually
curtail the activity of politicians or statesraen
when they apply their rainds to these affairs.
The advantages which I think you possess over
those whose primary functions are of a different
character lie in the essential and proper difference
of outlook. Business is not concerned, or not
primarily concerned, with the distinctions between
nationalities or colours or geographical conditions.
It is quite true that in different stages of the
world's history the raore patriotic writers upon
subjects of political economy have atterapted to
raake the processes of business auxiliary to
political or national objects. I confess I am of
the number of those business men who believe —
and in all ages there have been raany of thera —
that the primary occupation of a business man
is to carry on business, just as the primary
occupation of politicians is to attend to politics.
In ray humble judgment the business of raen
who are devoted to affairs in the first place, and
in all circurastances that can be called norraal,
has nothing whatever to do with international
considerations, and that object is the best object
which proposes to itself to increase the oppor
tunities for the interchange of coraraodities, and
to iraprove in the first place by every pos
sible way the conditions in which those cora
raodities are raanufactured, and in the second
place the various methods of transportation

RECONSTRUCTION OF CIVILISATION 223
available for those who are to be purchasers or xix.
custoraers. Such, Sir, is the primary function, as it seems
to me, of an International Chamber of Coraraerce.
Such a body, in ray view, could have discharged
very useful functions before the world catastrophe
of 1914. Its contribution to our post-war diffi
culties is not only useful but essential if the
prosperity of the world is in the next decade — I
raight alraost say within living memory — to be
re-established at all.
What is the position in which we find ourselves
to-day ? It is, shortly, that, as a result of the
devastating war through which the world has
recently passed, whole areas of the world's surface,
hitherto contributary to, and indeed forming a
most raaterial part of, the aggregate available
markets of the world, have been withdrawn
frora the service of business, and that no sub
stituted raarkets have been provided to take
their place. I go further, for this stateraent does
not exhaust the trouble. Not only have you lost
markets, without the prospect of obtaining any
where substituted raarkets, but the consequences
of the War have raade theraselves felt in other
ways not less disastrous, and at the present
raoraent apparently not less hopeless. The effect
upon the currencies of the world, the debaseraent
of the pre-war currency which has been occasioned
by the unliraited extension of paper raoney, has
produced consequences, very farailiar to all of
you, upon the exchanges of the world ; and, it
is hardly too rauch to say, have established a
state of conditions, a flux, in the whole business

224 POINTS OF VIEW
XIX. world which is not only disturbing at the raoraent
to any extension of enterprise, but threatens for
a period, to which the raost acute business mind
can assign no limits, to prevent any restoration
at all of the old pre-war spirit of confidence and
of enterprise. Be it observed that the problera
of the exchanges, which has forced itself upon
the attention of the business world in so crude
a form in the period which has elapsed since the
Arraistice, is one which in its existing intensity
is almost a new one. None of the previous
struggles of the last few centuries in the raodern
world has presented us with business perplexities
on anything like so large a scale, springing directly
frora probleras of exchange. It is quite true that,
if you go back far enough, to the great struggles
between sorae of the Greek City States, you do
discover a general dislocation and even paralysis
of exchange, which present us with probleras
very coraparable to those under which the world
is suffering to-day, and perhaps not wholly
without the prospect of affording sorae slight
degree of econoraic guidance. But, believe rae,
the problem is not one which can be disposed of
by the superficial view on the part of any one
nation that, inasmuch as exchange at the moment
favours thera, inasrauch, in other words, as they
can buy coraraodities at an unexpectedly low
rate in another country, therefore the resultant
financial situation must be pronounced to be one
which is advantageous to themselves. This, in
deed, would be a very eleraentary and a very
inadequate view. The real truth is that no
accidental, artificial, and transient advantage that

RECONSTRUCTION OF CIVILISATION 225
is to be gained in this way, presenting no reality xix.
of coramercial health but only a hectic feverish
imitation of health, can for any sustained period
benefit any nation. What is wanted is not the
occasional advantage which is presented by a
favourable exchange but the restoration, for the
whole world, as rauch for the wealthiest as for
the poorest coraraunities, of stable conditions,
the encouragement of confidence, the induceraent
to capital to take risks — because capitalists feel
that the raoraent has corae when there is sufficient
promise of security and of permanence in the
comraercial situation to raake it prudent on their
part to take risks. No view could be raore
superficial than that which frora tirae to tirae
is taken in this or sorae other countries in the
world depending upon a censure of the capi
talist. The capitalist is not, never has been,
and I raost sincerely trust never will be, a phil
anthropist. It would, believe rae, be a very bad
thing for any individual country in which the
comraercial community were suddenly to abandon
business methods in the application oftheir capital,
and substitute for those raethods the somewhat
vague influence of benevolence. There the task of
benevolence, though a very necessary one, may
properly be left to other channels, because you
will only involve yourself in raisfortune and dis
aster, if that, which ought to be governed and
must be governed by purely economic and cora-
raercial considerations, is diverted into channels
which are wholly irrelevant to it. In other
words, the question, the one question, which the
custodian of capital has to consider, is : What
VOL. II Q

226 POINTS OF VIEW
XIX. are the conditions which, in the interests of
capital taken as a whole or of the particular
capitalist who is applying his raind to the problera,
present theraselves as a fleld for enterprise ?
The raoment he allows his mind to be influenced
or deflected by other considerations, he is en
dangering the whole systera upon which capital
depends, and, in endangering that systera he
is, in ray judgraent, endangering the very cause
of civilisation itself, which is bound up with
the stability and with the maintenance of the
capitalist's existence.
I hope I have said enough to make plain ray
view that we are to approach the probleras —
towards which it seeras to rae you raay raake so
powerful a contribution — with our rainds un
affected by the prejudices and the passions of
the last few years. We are to approach thera,
in other words, with the feeling that a certain
special duty is iraposed upon the business men
of the world. It is imposed upon thera because,
quite obviously, they can give a guidance upon
these points which no other class in the world
can give. After all, if you are dealing with
medical matters, as a rule it is found to be more
convenient to go to a doctor. If you are dealing
with scientific raatters, you probably would not
choose a butcher for the purpose of giving advice.
Our experience, and the teaching of coraraon
sense, have habituated us to asking for and
obtaining advice frora specialists. There never
was any pursuit known to me which was more
specialised in its character, more specialised in
the laborious attainment of the experience which

RECONSTRUCTION OF CIVILISATION 227
alone leads to efficiency, than the occupation of xix.
business raen, and I therefore say that, while
there raay be other probleras — raoral probleras,
political probleras, social probleras, on which the
experience of business raen is not necessarily
specially helpful, unless they are also, as they
raay well be, citizens of versatile coraraon sense
and experience — there are these probleras on
which business men can and must give guidance
which nobody else can give.
Let rae tell you alraost in a few sentences what
I conceive to be the general nature of those
problems. I start in the first place by stating
a comraonplace. I say there will be no pros
perity, there will be no contentraent, there will
be no order and there will be no harraony, in
this life which we have to build up frora the
shipwreck of the War, until the raaxiraura trade
which can be attained in existing or future
conditions is created in the world — until, in
other words, there is the raaxiraum production
in the world which the actual econoraic conditions
render possible, and until there is the raaxiraura
facility for the transportation and the distribution
of these coraraodities, when produced, frora hira
who would sell to hira who would purchase. And
I say, in the third place, that the necessary
healthy state of trade cannot be restored, unless,
with the least possible delay, the feverish changes
which take place from day to day and frora
week to week, in the exchanges of the world are
readjusted or raodified so that the non-purchasing
class may be prevented from increasing. Enor
raous raasses of population have already, for

228 POINTS OF VIEW
XIX. other reasons, ceased to be possible purchasers.
To these are being added those great coraraunities
which would gladly purchase from you if they
could, but cannot purchase from you, though
they would, siraply because the relative position
of the exchange prevents thera. That which
they possess and which is in itself a valuable
commodity, namely, the capacity of their labour,
is paralysed and rendered unraarketable by con
ditions of exchange which I hope I have already
convinced you raust, if the world is to regain
coraraercial sanity and financial stability, undergo
curative treatment.
I am bold enough to suppose — and certainly
the Government of which I am a meraber con
fidently believes — that it is in your power to
render service in the directions which I have
indicated that no other body of raen can render.
For the reasons I have attempted to make plain
you ought to apply your rainds to those probleras
in a cool and corapletely passionless raood. It
raay be the business of other people to consider
the wrongs which preceded the War, the wrongs
that accorapanied the War, the aniraosities which
have survived and some of which no doubt for
a long time will continue to survive the War.
But such pre-occupations, natural and inevitable
as they raay be, do not seera to rae to be specially
your pre-occupations, and your recoraraendations
ought, in ray judgraent, to be entirely divorced
frora the raoods to which I have raade reference.
If your recoraraendations are of a kind which
are in acute antagonisra with that which is be
lieved by the Governraents of the respective

RECONSTRUCTION OF CIVILISATION 229
countries to be politically necessary, you can at xix.
least be told so, but I do not think it is for you
to put forward or indeed to give weight to
anything which is founded upon considerations
which are not purely business in their content.
For this reason I for one greatly welcorae the
indication given by your Chairman that, nuraerous
as the nations are which at the present raoraent
are represented at this Conference, it is intended
shortly to add still further to their nuraber. I
cannot conceive that in the present situation of
the world anything is to be gained by the ostra-
cisra frora these discussions of any nation —
any nation. Such an ostracisra could only be
defended if your point of view was that the
business coramunity in all the world would be
benefited by the perraanent exclusion or the
exclusion for a very long period of a late eneray
frora the business of the world. But quite
obviously that is not the view which has been
taken by the statesraen who are responsible for
the Treaty of Versailles. If that had been their
view it would of course have been quite irapossible
for them to have imposed upon Gerraany the
obligation to pay large inderanities. Large in
demnities, as you gentlemen very well know, are
not in any existing circumstances or in any
circurastances that are likely to occur, to be ex
pected in gold, and nobody desires that they
should receive in payraent of these inderanities
any additional product of the printing presses
of the Central Powers. If inderanities, therefore,
are not payable in gold and are not desired
in paper, it would appear necessarily to follow

230 POINTS OF VIEW
XIX. that they can only be rendered either in labour
directly, or indirectly by the returns of labour,
and the raoment one reaches a conclusion upon
an analysis which, after all, is both siraple and
eleraentary, it follows that those who have im
posed upon Gerraany indemnities and reparations,
and who intend to exact them, must equally
prepare themselves to render easy a transition
under which it will be possible for those repara
tions to be paid, simply in order that the labour
may not be sterilised which and which alone will
raake the payraent of such reparations conceivable.
Therefore I very much hope that your recora
raendations as and when they are raade will
result frora your having looked at the civilised
world as a whole. Apply your minds to com
paring the conditions of all those countries in
the world which either actually at this raoraent
are markets or, by the exercise of what I would
call commercial statecraft, can be converted into
raarkets ; in other words, raarkets which are
either actual or potential. I for one entertain
not the slightest doubt as to the beneficent result
of your labours in this direction, and indeed I
go further and say that no other body of raen
in the world can discharge exactly the function
which it is in your power to discharge.
I know well and you know well the hopes that
have been entertained of the services that in this
connection might be rendered by the League of
Nations. I shaU naturally avoid, upon a highly
disputable and dehcate question, saying a single
word which could be misunderstood by the
representatives here of any nation, and I wUl

RECONSTRUCTION OF CIVILISATION 231
therefore only add this, that, while I and raany xix.
of us notice with sincere respect the efforts which
have been made by the League of Nations, in
circumstances of very great difficulty, we recog
nise that they cannot possess the full advantage
which this Association already possesses and will
continue to possess, that araongst its repre
sentatives are those who speak on behalf of
all the great countries in the world. I do not
of course say a single word as to the historical
reasons which have prevented the participation
of the United States of Araerica in the work of
the League of Nations. It was for thera and for
them alone, it was their undoubted right, and
they have exercised their undoubted right, to
take their own decision as to the course which
they would pursue. I refer to the subject for one
reason and one reason only, and that is to con
gratulate ourselves that the reasons which were
found in the actual political circurastances to
prevent the participation of the United States
of Araerica, for the raoraent at least, in the
work of the League of Nations have not been
sufficient to prevent their participation in the
vital labours which lie in front of this Conference.
We therefore approach the consideration of
the great questions which I have iraperfectly
suraraarised to you with the enorraous advantage
of having represented araongst us sorae of the
foreraost and raost experienced coramercial raen
in the United States of Araerica. I have raade
it ray business to read sorae of the speeches
which have been made, either at Atlantic City
or at Paris, by those who spoke on behalf of

232 POINTS OF VIEW
XIX. the United States. I observed with the greatest
possible pleasure the insight and the intuition
which led thera raost clearly to the conclusion
that, whatever raay be the political goal at which
the great Republic, through the efforts of its
statesraen, is likely to aim, at any rate as far as
the world of business is concerned, not even the
Monroe Doctrine can prevent the realisation of
the great truth that the world is one and in
divisible, and the United States of America, not
only geographically but by every material stand
ard by which we raeasure the greatness of nations,
is part of the world, and must remain a very
considerable part of the world.
Therefore without running the risk that any
of our guests will think I ara being too particular
in the mention that I make of the American share
in this new enterprise, I say that we, the Govern
ment, are well aware of the part which the great
Araerican Republic is so specially qualified to play ;
that we welcorae their representatives araongst us
and are confident that the exchange of so much
experience operating upon so much goodwill will
afford to us the raost rapid relief of our suffer
ings which the extent of our difficulties renders
possible. Let no one think that we shall escape
thera in a raonth or in a year or in two years,
but if no effort of this kind is raade it raight
easily happen that a generation or raore than a
generation would pass before we even saw the
beginnings of a new dawn. I ara one of those
who believe that if we are raore fortunate than
we have been in our solution of our industrial
difficulties, if we can iraitate the greater elasticity

RECONSTRUCTION OF CIVILISATION 233
which has been exhibited by some countries in xix.
the world, and if we apply ourselves scientifically
with goodwill, harnessing to the purpose all the
resources of civilisation, and not merely working
discordantly as separate countries, we raay attain
a solution earlier than sorae have even believed
to be possible.
In conclusion, in offering you this welcorae
to-day on behalf of the Governraent I will only
say that anything we can do as a Governraent
will be raost readily done in assisting you in your
deliberations, and we will give you any official
convenience which raay render these enquiries
easier to you.
When your Chairraan points out that I have
given sorae undertaking in reference to the
codification of coraraercial law, he is, I think,
a little too sanguine. To avoid misconception,
I raust raake plain what the position is. So far
as I know, I have entered into no undertaking
of any kind upon that raatter. Much progress
in this country has been already raade in the
direction of codification of coraraercial law, and.
I do not doubt that it will be possible, even in
the near future, to raake further progress upon
the same lines ; I have not raade up ray raind
in any detail as to how far that process may
usefully be extended at this moraent — indeed, I
shall look for advice to this Association, advice
founded, I hope, on the harraonious recoraraenda
tions of the coraraercial raen of raany countries.
I give you the most definite assurance, upon the
part of the Departraent of the Governraent
which falls raore exclusively to rayself than to

234 POINTS OF VIEW
XIX. any one else, that any recoraraendation made by
this Association which aims at producing greater
simplicity in the legal enactments of this country,
with the object of bringing them either in sub
stance or in form into more convenient harmony
with the legal arrangements of other countries,
will be most attentively and swiftly considered
by rae ; and if I am convinced, as I should
expect to be convinced if there was agreeraent
araongst all you gentleraen, of the desirability
of that which was recomraended, I should cer
tainly be willing to raake legislative proposals
in Parliaraent in this country, and I have no
doubt that, fortified by such authority, the
prospects of such proposals would be good. I
shall, I hope, be excused for making more plain
than I have tried to do, that I regard it as a privi
lege to have been asked here to-day. I ara most
unfortunately — and no one regrets it as I do —
unable to allow rayself the pleasure of hearing
the later speeches, because in the pressure of
labour under which our lives are lived to-day I
have an iraperative engagement which takes me
elsewhere alraost iraraediately.
Give rae leave. Sir, to say, as I do in the most
hearty and unreserved way, that on behalf of all
my colleagues I welcorae you here to-day, and
we sincerely hope that your deliberations will be
fruitful in their results. We assure you of our
desire not to be lacking in anything which can
add either to your corafort as you deliberate or
to your help in those deliberations. It is for you
to apply great and unprejudiced minds to great
and imraeasurable distress.

INDEX

Acland, Sir Henry  ii. 67

Acton, Mr. Justice

i. 191
" Aina," the ... .
ii. 100
Aisne, battle of ...
i. 131
Ali, Mr. Ameer ....
ii. 38
Allenby, General
i. 138
Ampthill, Lord ....
ii. 217
Anson, Sir William
i. 209
Appellate Jurisdiction Act, 1870 .
i. 97
"Ariel," the ....
ii. 100
Army Act ....
ii. 3
Army of Occupation .
ii. 27
Army Transport
ii. 20
Arthur, Sir George
i. 2
Ashmead-Bartlett, Sir Ellis
i. 87
Asquith, Mr  i. 8
8; ii
7, 88, 12P, 183
Asquith, Raymond
i. 83 ; ii. 124
Assizes and Quarter Sessions Act
ii. 47
Atldn, Lord Justice .
ii. 56
Austin on Jurisprudence
i. 169
Avory, Mr. Justice
i. 181
Baker, Mr. Newton D.
i. 241
Ball, Mr. Sidney
i. 84
Bancroft, Mr. ....
i. 223
Bar, the .....
ii.
29 et seq.
Barnet, Canon ....
i. 204
"Battle," the ....
ii. 108
Beaconsfield, Lord. See Disraeli
Beauchamp, Lord
i. 86
Belloc, Mr. Hilaire ....
i. 82
235
236

POINTS OF VIEW

Bench, the . . . .

ii. 29

Bentham, Jeremy

. 92, 152 et seq.

Bentley, Dr 

i. 201

Berkshire Yeomanry .

. ii. 128
Berlin Congress . . . .
ii. 70, 79
"Bermuda," the
. ii. 115
Best, Chief Baron
i. 208
Bethell, Sir Richard .
i. 95, 97, 128
Betts J 
. ii. 112
Bickersteth, Mr.
i. 96
Birkenhead, Lord
i. 90
Blackburn, Lord
. ii. 183
Blackstone, Sir William
i. 152
Blake, Admiral .
i. 204
Blondin, the Hon. P. E.
i. 242
Bonn ....
ii. 26
Borden, the Rt. Hon. Sir Robert,
K.C.
i. 242
Bradbury, Sir John .
i. 86
Briand, M.
i. 241
Brougham, Lord . . i
. 93 ; ii. 16
5, 169, 177, 178
i. 241
Buckle, Life of Disraeli
i. 121
Buckmaster, Lord
i. 208 ei
seq. ; ii. 86, 42
Bucks Yeomanry
ii. 128, 131
Burleigh, Lord .
ii. 67
Burleson, Mr. A. S. .
i. 242
Cairns, Lord
i. 114, 125 ,• ii. 29, 123
Calder, Hon. J. A.
i. 243
Cambrai ....
i. 143
Campbell, Lord . . i. 93,
100, 114 ;
li. 161, 165, 177
Campbell-Bannerman, Sir Henry
i. 90
Canning Club
i. 79
Canterbury, Archbishop of .
i. 215 et seq.
" Cape Corso," the .
. ii. 108
" Carlos F. Roses," the
. ii. 103
Carvell, the Hon. F. B., K.C.
i. 243
Cateau, Le, battle of .
i. 130 et seq.
Cecil, Lord Hugh
i. 90
Cecil, Lord Robert
i. 90 ; ii. 65, 130, 205
Chamberlain, Joseph .
• «
. i. 90 ; ii. 77
INDEX

237

Chase Casgrain, the Hon. T.

K.C. . . . i. 242

Chatham Club .

i. 79

Chelmsford, Lord, Lord Chai

icellor . . i. 38, 114, 121

Christ Church College, Oxfoi

d . . . . ii. 66

Church, Dean .

i. 204

Churchill, Lord Randolph .

i. 89 ; ii. 69, 77

Churchill, Mr. Winston

i. 26 ; ii. 65, 127, 188, 140

Clanricarde, Lord

. ii. 180

Clark, Mr. Champ

i. 241

demons, Hon. J. S. .

i. 248

Coderre, the Hon. Louis, K.

C  i. 242

Codification

i. 151 et seq.

Collier, Sir Robert

i. 128

Cologne . . . .

ii. 26

Conde

i. 184, 135

Constantinople .

ii. 79

Conveyancing Acts

. i. 100 ; ii. 35

Cook, E. T.

i. 91

Cooper, C. P. .

i. 198

Copley M.R. (see Lyndhurst

) . . . . ii. 174

Coronation Oath

. ii. 129

"Corsican Prince," the

ii. 92 et seq.

Cottenham, Lord

. i. 98 et seq. ; ii. 177

Council, Army .

 ii. 28

County Court Judges Act

 ii. 58

County Courts Act, 1919

 ii. 59

County Courts Act, 1846

 ii. 168

Court of Criminal Appeal A

ct . . . • i. 106

Court of Imperial Appeal

 ii. 36

Courts, Ecclesiastical .

 i. 105

Courts, German

 ii. 27

Courts, War Compensation

 ii. 39

Cranworth, Lord Chancelloi

i. 97, 114, 163 ; ii. 170

Crawford, Lord .

 i. 86, 90

Creevey .

 ii. 67

Creighton, Mandell .

 i. 91

Crimean War

 ii. 102

Cripps, Colonel, D.S.O.

 ii. 131

Cromwell .

 i. 18

Crowthers, the Hon. T. W.,

K.C. . . ¦ i. 242

Curzon, Lord

 i. 89

238

POINTS OF VIEW

Daily Chronicle

. ii. 129

Daniels, Mr. Josephus

i. 242

Dardanelles Campaign

i. 26

Davies, General ....

i. 138

Dawson of Penn, Lord

i. 33

D.C.L. of Oxford University for Sir Samuel

Evans

discussed 

. ii. 122

Declaration of London

. ii. 115

Defence of the Realm Acts .

ii. 23

Denman, Lord .....

i. 93 ; ii. 177

Deputy Judge-Advocate-General, office of

ii. 2

"Der Turner" 

. ii. 103

Derby, Lord .....

ii. 69

Dickens, Charles ....

i. 102

Disraeli . . . . i. 121 ; ii. 67, 69, 71 et seq.

Divorce Reform 

i. 205 et seq.

Doherty, Rt. Hon. C. J. .

i. 242

Dolben J 

ii. 161

Donoughmore, Lord ....

i. 86
Doran, General .....
i. 138
Drummond, Mr. ....
ii. 172
Duke, Sir Henry ....
ii. 44
Dunedin, Lord .....
ii. 183
Edge, Sir John  ii. 38
El Mughar
 ii. 131
Eldon, Lord
i. 96, 104, 105, 114, 120 ; ii. 162
EUenborough
 ii. 147
Erskine, Lord
 i. 96, 114
Esher, Lord
 i. 1-32, 101
Eton
 ii. 66, 124
Evans, Sir Samuel  ii. 44, 84-123
Evidence, Civil Law of  ii. 18
Exeter, Lord  ii. 70
" Falcon," the  ii. 106
" Felicity," the 
ii. 98
Finlay, Lord ......
ii. 56, 180
Fitzgerald, Colonel .....
. i. 14-82
Fitzgerald, Lord
•
ii. 183
INDEX

239

Foch, Marshal .

ii. 25

French, Lord  i. e et seq. ; ii. 2

Fry, C. B  i. 8i

Gardiner, Professor  ii. 158

Garrison, Mr. Lindley M. .

i. 241
Gibbon, Edward
i. 84
Giveen, H. M. .
i. 191
Givry ....
i. 135
. i. i
51, 12
5 ; ii.
66, 71, 75
Glamorganshire, Mid-Division of
ii. 83
Glynn, the Hon. P. M., K.C.
i. 243
Gordon, Lord
. ii. 183
Gordon, General
i. 4
Gorell, Lord
i. 206
Governor, MiUtary, office of
ii. 27
Graham, Sir James
. ii. 165
Grant, M.R.
. ii. 174
Granville, Lord .
i. 125
Gray's Inn
i. 245
Gregory, Mr. T. W. .
i. 242
Grey, Sir George
i. 102
Grierson, Sir James .
i. 133
Groom, Hon. L. E. .
i. 243
Grose, T. H. .
i. 84
Hague Convention .... ii. 97, 107, 108
Haig, Sir Douglas
. i. 28 ; ii. 25
Haldane, Lord . . i. 92,
98 ; ii. 34, 143, 200 et seq.
Halsbury, Lord .
i. lOO, 114 ; ii. 128
HaU ....
. ii. 103
Hamilton, Hubert, General
i. 143
" Hampton," the
ii. 103
Hannen, Lord ....
ii. 183
Hardwicke, Lord ChanceUor
ii. 178
Harrison, Frederic
i. 191
Hatherley, Lord Chancellor.
i. 144
Hazen, Sir James D. .
i. 242
Henderson, General .
ii. 138
Henderson, Mr. Arthur
i. 12
240

POINTS OF VIEW

Herbert, Sir Edward .

i. 197

Herschell, Lord Chancellor .

i. 114

Holker, Sir John

i. 173

Holland, Professor

. ii. 107

Hope, Anthony . . . .

i. 91

Horner, Edward

. ii. 142 et seq.

Horner, Lady .

. ii. 140

Hotham, Lord .

. ii. 169

Huddleston, Mr.

i. 122

Hughes, The Rt. Hon. W. M.

i. 248

Hume, Mr.

. ii. 170

Indian Corps

ii. 7

Inglis, Sir Robert

. ii. 172

Ilbert, Sir Courtenay .

i. 172

Inner Temple

i. 246

Irvine, the Hon. W. H., K.C.

i. 248

JekyUM.R.

. ii. 174

Jenkins, Sir Lawrence

ii. 38

Jenks, Mr. E. .

i. 184 et seq.

Johnson, Dr.

ii. 123, 184

Joint Stock Companies

i. 105

Judicature Acts, 1873-1875

i. 99 ; ii. 30

Justice, Minister of

i. 92 et seq.

Kagosima

ii. 74

Kelly, Sir Fitzroy

. ii. 169

Kenyon M.R.

. ii. 174

" Kim," the .

ii. 112, 113, 114, 115

King, Henry

i. 194

Kingsdown, Lord

. ii. 176

Kingston, Duchess of

i. 47

Kitchener, Lord

. i. 1-32 ; ii. 7

Kluck, von. General .

i. 132

Land Transfer Act

. i. 106 ; ii. 31

Landrecies

i. 144

Lane, Mr. Franklin K.

i. 242

Langdale, Lord .

. i. 94 ; ii. 169

Lansing, Mr. Robert .

i. 241

INDEX

241

Lanrezac, General
Law of Property Act
Lawrence, Mr. Justice P. 0
Lecaux v. Eden
Leconfield, Lord
Lee L.C.J.
Lefevre, Sir J. Shaw
Leffingwell, Mr. R. C.
"Leonora," the
Lincoln, Lord
Lincoln's Inn
Lister, Charles .
Lloyd George, Mr.
Lord Chancellor, office of
Loreburn, Lord .
Loughborough, Lord Chancellor
Lougheed, Sir James, K.C.M.G.
LubeckLunacy Act, 1852
Lush, Lord Justice
Lushington, Dr.
Lygon, The Hon. Henry
Lynch, Mr.
Lyndhurst, Lord Chancellor
Macaulay, Lord
Macdonell, Sir John .
Maclean, the Hon. A. K., K.C.
Macnaghten, Sir Malcolm .
Maine, Sir Henry
"Marie Glaeser," the
Manchester School, the
Manning, Cardinal
Mansfield, Lord
" Marianna," the
Marne, the, battle of .
Married Women's Property Act
Marriott, Sir James .
Marshall, Mr. Thomas R. .
Mason, A. E. W.
Maubeuge VOL. II

88:

i. 185
ii. 35
ii. 50
ii. 94-96
i. 198
i. 199
i. 164
i. 241
ii. 118
i. 80
i. 122, 246
. ii. 142
ii. 130-133, 198 et seq.
ii. 149 et seq.
ii. 128
i. 114
i. 242
ii. 114
i. 100
i. 173
ii. 98, 106, 107
i. 86
ii. 156
93, 96, 114 ; ii. 178

ii. 157 et seq.
i. 186 et seq.
i. 243
ii. 56
i. 167
ii. 97-108 ii. 126
i. 91
ii. 178
ii. 101
i. 25
i. 106
ii. 106
i. 241
i. 91
i. 135
R

242

POINTS OF VIEW

McAdoo, Mr. Wm. H.

,

i. 241
McCoU, Hon. J. H. .
i. 243
MeCracken, General .
i. 139
Meighen, Mr. Arthur .
i. 242
Melbourne, Lord
i. 93
"Memphis," the
ii. Ill
Merchant Shipping Act, 1894
ii. 101
Mesopotamia . '.
ii. 25
Mewburn, Major-General the Hon
.Sir J
5. C.
i. 243
Middle Temple .
i. 246
Millerand, M. .
i. 81
Milner, Lord
i. 90
"Miramichi," the
ii. 105
Mons, battle of .
i. 185
Montague, Mr. .
i. 185
Montesquieu
ii. 168
Moore, Sir George
ii. 151
Mormal, forest of
i. 189
Mowbrays, the .
,
i. 91
"Mowe," the .
ii. 105
Muir Mackenzie, Lord
i. 101
Municipal Corporations Act, 1885
ii. 166
Munnings, Mr 
ii. 144
Napier, Sir Joseph . . . . . . i. 95
Napoleon .
. ii. 112
Naseby, battle of
i. 18
" Nassau," the .
. ii. 112
Neuve Chapelle .
. ii. 143
NevileJ. .
. ii. 161
New College, Oxford
. ii. 125
NichoU, Sir John
. ii. 165
" Nigretia," the
. ii. 103
Nitti, Sr. .
i. 241
Notification of Births Act, 1909
i. 41
O'Connell v. The Queen . . . . ii. 176 et seq.
" Odessa," the  ii. 103
Onslow, Richard ...... ii. 155
Onslow, Speaker
.
.
.
.
.
i. 198
INDEX

243

Orlando, Sr.
Oxford Union Society
Pakington, Sir John
Palestine .
Palmer, Robert .
Palmer, Sir Roundell
Palmerston Club
Palmerston, Lord
Paris, Declaration of
Parmoor, Lord .
PaschendaalePaul, Herbert .
Paul, Mr. H. M.
Peel, Sir Robert
People's Budget, the
Pepper Arden M.R.
Pepys M.R. {see also Cottenham,
Pershing, General John J.
Phillimore, Lord
Plumer, Lord
Poincare, M.
Polk, Mr. Frank L. .
Poor Persons Rules
Pope, Alexander
PoweU J.
Powell, York
Pratt L.C.J.
Press Bureau
Pretoria .
Primrose, the Hon. Neil
Prior, Matthew .
Rainsford J.
Reform BiU, 1867
Repington, Colonel
Reumont .
Rex V. Gilham .
Rhine Provinces, occupation of
Richards, Sir Erie, K.C.
Robartes, Thomas Agar, M.P.

Lord)

102

i. 241
i. 77-91
ii. 169
ii. 25
i. 89
i. 124
i. 79
, ii. 68, 76
ii. 102
i. 211
i. 27
i. 83
i. 83
ii. 72, 165
ii. 126
ii. 174
ii. 174
i. 242
i. 211
ii. 5
i. 25
i. 241
ii. 41, 49
i. 194
ii. 161
i. 91
i. 199 i. 2
i. 19
124 et seq.
i. 194
ii. 160
ii. 76
i. 9
i. 141
i. 36
ii. 25
ii. 121
ii. 125

244

POINTS OF VIEW

Roberts, Lord .
Roche, Mr. Justice
Rogers, Benjamin Bickley
Roman Law
Romilly, Sir John
Roosevelt, Mr. Frankhn K.
Rosebery, Lord .
Rothschild, Evel)^
Rothschild, James de
" Roumanian," the
Rowell, Hon. N. W., K.C.
Royal Commission on Civil
Russell Club
Russell, Lord John
" Russia," the .

St. Leonards, Lord Chancellor
Salisbury, Lord .
Salmond, Sir John
Salvesen, Lord .
Scott, Col. Jack, C.B.
Selborne, Lord
Settled Land Acts
Sevigny, Hon. Albert, K.C.
Shaw Stewart, Patrick
Shee, Mr. Justice
Sifton, Rt. Hon. A. L.
Simon, Sir John
SmiUie, Mr.
Smith, Sydney .
Smith-Dorrien, General
Smuts, General .
Snowe, Major-General
Sordet, General .
South African War
Spen Valley Election .
Stamford, borough of
Steel-Maitland, Sir Arthur
Stephen, Sir James
Sterndale, Lord
Stettin

Service

i. 88

i. 65-

161,

i. 20, 90

.

i. 191

.

i. 194

.

ii. 2

. i. 125

; ii. 170

.

i. 242

r5, 125,

126, 127

.

ii. 131

.

ii. 125

ii. 109

.

i. 243

.

ii. 53

i. 79, 86

ii. 74
•
ii. 103
i. 114
82 ; ii.
115, 147
.
i. 244
.
i. 221
. ii. 136 et seq.
166 ; ii
29, 128
. i. 166; ii. 35
.
i. 242
.
ii. 142
.
i. 121
,
i. 248
. 86, 90
J ii. 192
.
ii. 195
.
i. 203
,
i. 131
i. 244
.
i. 141
.
i. 145
.
ii. 115
.
ii. 193
.
ii. 70
,
i. 80
.
i. 152
ii
44, 120
,
ii. 114
INDEX

245

Story J. .
Story on Prize Courts .
Stowell, Lord . . i. 151
Stradbroke, Lord
Strange M.R.
Sumner, Lord .
Supreme Court of Judicature Act,
Sussex Yeomanry
Swaddan, Mr. .
Swift, Judge, U.S.A. .
Swift, Mr. Justice
Talbot, Gilbert .
Taylor, Sir William .
Theobald on Wills
Thring, Lord
Thurlow, Lord Chancellor
"Tobago," the .
Tomlin, Mr., K.C.
TrSlonTrevethin, Lord.
"Troija," the .
Truro, Lord Chancellor
Valenciennes Vernon, Lord
Victoria, Queen
Viviani, M.
Wadham College, Oxford
Wadham, Dorothy
Wallace, Sir Matthew
Walpole, Sir Robert .
Wellington, Duke of .
Wensleydale Peerage Case
Westbury, Lord Chancellor
Westlake, Professor .
Westminster Hall
WhamcUffe, Lord
White, Sir Thomas, K.C.M.G
Whittaker, Sir Thomas

ii. 94, 112
ii. 99
; ii. 90, 101, 106, 112, 117
. ii. 180
. ii. 174
ii. 56, 183
1910 . i. 106 ; ii. 89
ii. 137
ii. 152
i. 223
ii. 68

i. 89
ii. 40
i. 195
i. 164
ii. 178
ii. 99
ii. 54
i. 185
ii. 39
ii. 98
i. 114
i. 143
ii. 142 i. 4
i. 241

i. 191 et seq.
i. 195
ii. 40, 72
198, 201
ii. 5, 23
ii. 171
i. 88, 102, 114, 124
ii. 103
i. 152
ii. 179
i. 248
ii. 198

246

POINTS OF VIEW

Wilkins, Dr.
Willcocks, Sir James .
" WiUiam," the
WiUiams, John .
WiUis J. .
Wills, Dr. .
Wilson, President
Winter Assizes Act
Wise, Hon. G. H.
Wolmer, Lord .
Woods, Mr. Maurice .
Wren, Christopher
Wyndham, Baron, of Finglass
Wynne, Hon. A.
York, Archbishop of .
" Zamora," the
Zouch, Richard .

11,

i. 196
ii. 7
116, 117
i. 203
i. 168
i. 196
i. 241
ii. 47
i. 243
i. 86
i. 86
i. 196
i. 198
i. 243
1.207
ii. 109
i. 199

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