He had, indeed, but one fault as an arguer. He could not argue a point whose soundness he doubted as effectively as one in which he had faith; and when it befell that several points arose in a case, and the Court seemed disposed to lay more stress on the one for which he cared little than on the one he deemed conclusive, he refused to fall in with their view and continued to insist upon that which his own mind approved.

I remember to have once heard him and Cairns argue before the House of Lords (sitting as the final Court of Appeal) a case relating to a vessel called the Alexandra—it was a case 178 arising out of an attempt of the Confederates, during the American War of Secession, to get out of a British port a cruiser they had ordered. Cairns spoke first with all his usual power, and seemed to have left nothing to be added. But when Mellish followed on the same side, he set his points in so strong a light, and placed his contention on so solid a basis, that even Cairns’s speech was forgotten, and it seemed impossible that any answer could be found to Mellish’s arguments. One felt as if the voice of pure reason were speaking through his lips.

Such an intellect might seem admirably qualified for judicial work. But as a judge, Mellish, admirable though he was in temper, in fairness, in learning, and in logic, did not win so exceptional a reputation as he had won at the Bar. People used to ascribe this partly to his weak health, partly to the fact that he, who had been a common-law practitioner, was sitting in a court which heard equity appeals, and alongside of a quick and strong colleague reared in the equity courts.[27] But something may have been due to the fact that he needed the stimulus of conflict to bring out the full force of his splendid intelligence. A circumstance attending the appointment of 179 Mellish illustrates the remark already made that a great counsel whose work lies apart from so-called “sensation cases” may remain unknown to his contemporaries. When Mr. Gladstone, being then Prime Minister, and having to select a Lord Justice of Appeal, was told that Mellish was the fittest man for the post, he asked, “Can that be the boy who was my fag at Eton?” He had not heard of Mellish during the intervening forty years!

However, I return to the Master of the Rolls. In dealing with facts, Jessel has never had a superior, and in our days, perhaps, no rival. He knew all the ways of the financial and commercial world. In his treatment of points of law, every one admitted and admired both an extraordinary knowledge and mastery of reported cases, and an extremely acute and exact appreciation of principles, a complete power of extracting them from past cases and fitting them to the case in hand. He had a memory which forgot nothing, and which, indeed, wearied him by refusing to forget trivial things. When he delivered an elaborate judgment it was his delight to run through a long series of cases, classifying and distinguishing them. His strength made him bold; he went further than most judges in readiness to carry a principle somewhat beyond any decided case, and to overrule an authority which he did not 180 respect. The fault charged on him was his tendency, perhaps characteristic of the Hebrew mind, to take a somewhat hard and dry view of a legal principle, overlooking its more delicate shades, and, in the interpretation of statutes or documents, to adhere too strictly to the letter, overlooking the spirit. An eminent lawyer said, “If all judges had been like Jessel, there might have been no equity.” In that respect many deemed him inferior to Lord Cairns, the greatest judge among his contemporaries, who united to an almost equally wide and accurate knowledge of the law a grasp of principles even more broad and philosophical than Jessel’s was. Be this as it may, the judgments of the Master of the Rolls, which fill so many pages of the recent English Law Reports, are among the best that have ever gone to build up the fabric of the English law. Except on two occasions, when he reserved judgment at the request of his colleagues in the Court of Appeal, they were delivered on the spur of the moment, after the conclusion of the arguments, or of so much of the arguments as he allowed counsel to deliver; but they have all the merits of carefully-considered utterances, so clear and direct is their style, so concisely as well as cogently are the authorities discussed and the grounds of decision stated. The bold and sweeping character which often belongs to them makes 181 them more instructive as well as more agreeable reading than the judgments of most modern judges, whose commonest fault is a timidity which tries to escape, by dwelling on the details of the particular case, from the enunciation of a definite general principle. Positive and definite Jessel always was. As he put it himself: “I may be wrong, but I never have any doubts.”

At the Bar, Jessel had been far from popular; for his manners were unpolished, and his conduct towards other counsel overbearing. On the Bench he improved, and became liked as well as respected. There was a sort of rough bonhomie about him, and though he could be disagreeable on occasions to a leading counsel, especially if brought from the common-law bar into his court, he showed a good-humoured wish to deal gently with young or inexperienced barristers. There was also an obvious anxiety to do justice, an impatience of mere technicalities, and a readiness, remarkable in so strong-willed a man, to hear what could be said against his own opinion, and to reconsider it. Besides, a profession is naturally proud of any one whose talents adorn it, and whose eminence seems to be communicated to the whole body.

Ever since, under the Plantagenet kings, the Chancery became a law court, the office of Master of the Rolls had been that of a judge of first 182 instance. In 1881 its character was changed, and its occupant placed at the head of the Court of Appeal. Thus it was as an appellate judge that Jessel latterly sat, giving no less satisfaction in that capacity than in his former one, and being indeed confessedly the strongest judicial intellect (except Lord Cairns) on the Bench. Outside his professional duties, his chief interest was in the University of London, at which he had himself graduated. He was a member of its senate, and busied himself with its examinations, being up till the last excessively fond of work, and finding that of a judge who sits for five or six hours daily insufficient to satisfy his appetite. He was not what would be called a highly cultivated man, although he knew a great deal beyond the field of law, mathematics, for instance, and Hebrew literature and botany, for he had been brought up in a not very refined circle, and had been absorbed in legal work during the best years of his life. But his was an intelligence of extraordinary power and flexibility, eminently practical, as the Semitic intellect generally is, and yet thoroughly scientific. And he was also one of those strong natures who make themselves disliked while they are fighting their way to the top, but grow more genial and more tolerant when they have won what they sought, and perceive that others admit their pre-eminence. The services which he rendered as a 183 judge illustrate not only the advantage of throwing open all places to all comers—the bigotry of an elder day excluded the Jews from judicial office altogether—but also the benefit of having a judge at least equal in ability to the best of those who practise before him. It was because Jessel was so easily master in his court that so large and important a part of the judicial business of the country was, during many years, despatched with a swiftness and a success seldom equalled in the annals of the English Courts.

184

LORD CHANCELLOR CAIRNS

Hugh M’Calmont Cairns, afterwards Earl Cairns (born 1819, died 1885), was one of three remarkable Scoto-Irishmen whom the north-east corner of Ulster gave to the United Kingdom in one generation, and each of whom was foremost in the career he entered. Lord Lawrence was the strongest of Indian or Colonial administrators, and did more than any other man to save India for England in the crisis of the great Mutiny of 1857. Lord Kelvin has been, since the death of Charles Darwin, the first among British men of science. Lord Cairns was unquestionably the greatest judge of the Victorian epoch, perhaps of the nineteenth century.[28] His name and family were of Scottish origin, but he combined with the shrewd sense and grim persistency of Scotland some measure of the keen partisanship which marks the Irish Orangeman. Born an Episcopalian, 185 he grew up a Tory in politics, an earnest Low-Church Evangelical in religion; nor did his opinions in either respect ever seem to alter during his long life. His great abilities were perceived both at school (he was educated at the Academy in Belfast) and at college (Trinity College, Dublin), and so much impressed the counsel in whose chambers he studied for a year in London, that he strongly dissuaded the young man from returning to Dublin to practise at the Irish bar, promising him a brilliant career on the wider theatre of England. The prediction was verified by the rapidity with which Cairns, who had, no doubt, the advantage of influential connections in the City of London, rose into note. He obtained (as a Conservative) a seat in Parliament for his native town of Belfast when only thirty-three years of age, and was appointed Solicitor-General to Lord Derby’s second Ministry six years later—a post which few eminent lawyers have reached before fifty. In the House of Commons, though at first somewhat diffident and nervous, he soon proved himself a powerful as well as ready speaker, and would doubtless have remained in an assembly where he was rendering such valuable services to his party but for the weakness of his lungs and throat, which had threatened his life since boyhood. He therefore accepted, in 1867, the office of Lord Justice of Appeal, with a seat in 186 the House of Lords, and next year was made Lord Chancellor by Mr. Disraeli, then Prime Minister, who dismissed Lord Chelmsford, then Chancellor, in order to have the benefit of Cairns’s help as a colleague. Disraeli subsequently caused him to be raised to an earldom.