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JUDGE and JURIST in the REIGN of VICTORIA AUSTRALIA the Law Book Co

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JUDGE and JURIST in the REIGN of VICTORIA AUSTRALIA the Law Book Co THE HAMLYN LECTURES ELEVENTH SERIES JUDGE AND JURIST IN THE REIGN OF VICTORIA AUSTRALIA The Law Book Co. of Australasia Pty Ltd. Sydney : Melbourne : Brisbane CANADA AND U.S.A. The Carswell Company Ltd. Toronto INDIA N. M. Tripathi Private Ltd. Bombay NEW ZEALAND Sweet & Maxwell (N.Z.) Ltd. Wellington PAKISTAN Pakistan Law House Karachi JUDGE AND JURIST IN THE REIGN OF VICTORIA BY C. H. S. FIFOOT, M.A., F.B.A. of the Middle Temple, Barrister-at-Law, Reader in Common Law to the Council of Legal Education Published under the auspices of THE HAMLYN TRUST LONDON STEVENS AND SONS LIMITED 1959 First published in 1959 by Stevens & Sons Limited of 11 New Fetter Lane London — Law Publishers and printed in Great Britain by The Eastern Press Ltd. of London and Reading © Stevens & Sons Limited, London 1959 CONTENTS The Hamlyn Trust ..... page vii 1. 1837-1901: JUDGE AND JURIST ... 1 2. CIVIL LIABILITY 31 3. CORPORATE PERSONALITY .... 57 4. POSSESSION 85 5. CRIMINAL LIABILITY Ill 6. CONCLUSION 134 Index ......... 139 HAMLYN LECTURERS 1949 The Right Hon. Lord Denning 1950 Richard O'Sullivan, Q.C. 1951 F. H. Lawson, D.C.L. 1952 A. L. Goodhart, K.B.E., Q.C, F.B.A. 1953 Sir Carleton Kemp Allen, Q.C, F.B.A. 1954 C. J. Hamson, M.A., LL.M. 1955 Glanville Williams, IX.D. 1956 The Hon. Sir Patrick Devlin 1957 The Right Hon. Lord MacDermott 1958 Sir David Hughes Parry, Q.C, M.A., LL.D., D.C.L. 1959 C. H. S. Fifoot, M.A., F.B.A. VI THE HAMLYN TRUST THE Hamlyn Trust came into existence under the will of the late Miss Emma Warburton Hamlyn, of Torquay, who died in 1941, aged eighty. She came of an old and well-known Devon family. Her father, William Bussell Hamlyn, practised in Torquay as a solicitor for many years. She was a woman of dominant character, intelligent and cultured, well versed in literature, music and art, and a lover of her country. She inherited a taste for law, and studied the subject. She travelled frequently on the Continent and about the Mediterranean and gathered impressions of comparative jurisprudence and ethnology. Miss Hamlyn bequeathed the residue of her estate in terms which were thought vague. The matter was taken to the Chancery Division of the High Court, which on November 29, 1948, approved a scheme for the administration of the Trust. Paragraph 3 of the Scheme is as follows: " The object of this charity is the furtherance by lectures or otherwise among the Common People of the United Kingdom of Great Britain and Northern Ireland of the knowledge of the Comparative Jurisprudence and the Ethnology of the chief European countries, including the United Kingdom, and the circumstances of the growth of such jurisprudence to the intent that the Common People of the United Kingdom may realise the privileges which in law and custom they enjoy in vii viii The Hamlyn Trust comparison with other European Peoples and realising and appreciating such privileges may recognise the responsibilities and obligations attaching to them." The Trustees under the Scheme number nine, viz-'- / - »«• c rr ^ i Executors of (a) Mr. S. K. COLERIDGE, ... „ , , w x T> ™, < Miss Hamlyn s Mr. J. R. WARBURTON | W.,, (b) Representatives of the Universities of Lon- don, Wales, Leeds, Glasgow and Belfast, viz-: Professor G. W. KEETON, Professor D. J. LI. DA VIES, Professor P. S. JAMES, Professor D. M. WALKER, Professor J. L. MONTROSE. (c) The Vice-Chancellor of the University of Exeter, ex officio (Dr. J. W. COOK). (d) Dr. JOHN MURRAY (co-opted). The Trustees decided to organise courses of lectures of high interest and quality by persons of eminence under the auspices of co-operating Universities with a view to the lectures being made available in book form to a wide public. The eleventh series of lectures was delivered by C. H. S. Fifoot at the University of Bristol in October, 1959. JOHN MURRAY, Chairman of the Trustees. October, 1959. CHAPTER 1 1837-1901 : JUDGE AND JURIST QUEEN VICTORIA was not born a Victorian : she became one by marriage, widowhood and longevity. Upon the crowded years of her reign no single pattern may be imposed. A few contrasts will mark the gulf between 1837 and 1901. In 1837 Sir Walter Scott was but five years dead, Carlyle published his French Revolution, Pickwick Papers were appearing in numbers, Disraeli entered the House of Commons for the first time. In 1901 Thomas Hardy had ceased to write novels, Henry James had reached the last stage of refinement, Bernard Shaw had surrendered dramatic criticism to the incomparable Max and was meditating upon Man and Superman, Winston Churchill had been a year in Parliament. Today's observer, looking back upon the reign with his own resigned, almost cynical assumption of instability, may see it enveloped in an atmosphere of smug security. The impression is superficial. From 1837 to 1850 England was, or felt itself to be, in constant peril of revolution. These were the years of Corn Law agitation, of the Chartists, of mob disorder, of the reverberations at home of 1848 abroad. They saw the advent of the railway and the company, with their deep impact upon the stiucture of trade and industry, the first erosion of individual responsibility and the gradual disintegration of provincial life. If any period invites the reproach of complacency, 1 2 Judge and Jurist in the Reign of Victoria it is the third quarter of the century. The Great Exhibition of 1851 symbolised the supremacy of the upper middle class—able, confident, high-minded, broad based upon commercial and agricultural wealth. They and their sons were the fruits of the new public schools inspired by Dr. Arnold, who had taught them the importance of being earnest. Their leader was Lord Palmerston, born above them but adopted into their familia and, in the cliche of the time, a repre- sentative man. His death in October, 1865, still in office and within two days of his eighty-first birthday, was a climacteric. The rivals who sought his place, Gladstone and Disraeli, came from the dominant class, but new men meant new measures. The Reform Act of 1867, if it seemed apt to buttress the stiucture of society, could serve as well to undermine it. Beneath the surface of popular optimism and material prosperity lurked the fear of the future. Thinking men searched their minds and were perturbed at what they found. Anthony Trollope, the mirror of his age and class, portrayed with distaste the transition from the old England of The Warden in 1855 to the new England of Mr. Scarborough's Family in 1882. Froude in 1864 was prophetic. " We live in times of disintegration, and none can tell what will be after us. What opinions —what convictions—the infant of today will find prevailing on the earth if he and it live out together to the middle of another century, only a bold man would undertake to conjecture." 1 The testimony of Bagehot, shrewd and detached, is significant. He had 1 The Science of History, a lecture delivered on Feb. 5, 1864, and included in Short Studies, I, 32. 1837-1901: Judge and Jurist 3 been bred to assume the merits of the current " system of removable inequalities " much as, in a later age, it has become orthodox to assert, rather than to rationalise, the cruder doctrine of equality. It was " the wholesome competition between class and class and the wholesome migration from class to class " that forged " the strongest instruments of social improvement." This assumption he now saw challenged by the advent of democracy —" neither the best nor the highest form which a society can adopt, and one fatal to that development of individual originality by which the past progress of the human race has been achieved and from which alone all future progress is to be anticipated." 2 The prophets were justified only too soon. In the last quarter of the century powerful solvents were at work upon English society. The agricultural interests, which had so surprisingly survived and even flourished upon the abolition of the Corn Laws, fell into a decline that proved all but fatal. International competition, inherent in the dogma of Free Trade, at last burst the barriers of insularity, and the produce of the new acres was carried by the new means of transport to flood the domestic markets. In this invasion high and low—landlord, farmer and labourer—were alike en- gulfed.3 From the late seventies to the early nineties 2 Literary Studies, II, 124-126. Bagehot here chastises Thackeray for chastising snobs. In the second edition of his English Constitution (1872) he expressed his fear "of the ignorant multitude " enfranchised by the Reform Act. 3 The results of the agricultural collapse were marked in remote places. " An income which [in 1875] was little short of £1,100 is now [1883], through the fall in agricultural prices, not more than £750 " {Adventures of Sherlock Holmes, The Speckled Band). 4 Judge and Jurist in the Reign of Victoria agricultural was accompanied by trade depression, with its familiar portents—unemployment, strikes, the foundation of the Fabian Society and the rise of the Labour Party. Amid this confusion political and economic laissez-faire, long fashionable if never un- questioned, could not survive unimpaired ; and the reactions of anxious Liberals to the new machinery of state control were, according to temperament, tortuous or indignant. Some, like T. H. Green, vindicated the measures of their leaders by insisting that only through order could freedom be realised.
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