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Published online by Cambridge University Press: 16 January 2009
According to traditional wisdom, although the public and academic writers are entitled to criticise the judges—and, in recent times, have not hesitated to do so most strenuously—judges do not reply publicly to their critics. To engage in open debate is unbecoming of the dignity of the English bench. However, every rule has its exception and on one notable occasion no lesser personage than the Lord Chief Justice, Sir Alexander Cockburn, incensed at criticism of one of his rulings, published a 24-page pamphlet replying to his censor, John Pitt Taylor. This unedifying episode illustrates how even the holder of highest office can make a spectacle of himself. If ever a judge again feels disposed to respond to public strictures, he might first do well to ponder the experience of Cockburn C.J.
1 See Bedingfield (1879) 14 Cox C.C. 341.
2 This assumption is puzzling given that the report of the case shows both that it was the prosecution that sought to have the woman's statement admitted and that, during Crown counsel's opening speech, Cockburn observed that the evidence should be excluded “as it might have a fatal effect” (ibid., at p. 342)—a rather prejudicial observation, one might think.
3 (1862) 2 F. & F. 850.
4 See (1879) 14 Cox C.C., esp. at pp. 343 note (a), and the commentary in (1879) 68 L.T. 146–147. Given the indecisive quality of many of the reported cases on the subject (e.g., Morgan (1875) 14 Cox C.C. 337), the question may still be open—particularly, since Bedingfield has been overruled on the res gestae point by the House of Lords in Andrews [1987] 2 W.L.R. 413. For more detailed consideration of Andrews, see Munday, Excited Utterances and the Res Gestae Doctrine (1987) 84 L.S.G. (forthcoming) and Allan, ante p. 229.
5 A sentiment later endorsed by Maugham, Lord, At the End of the Day (1954: London) p. 340Google Scholar.
6 (1879) 14 Cox C.C. at pp. 342–343).
7 The Times, 17 November 1879, p. 4.
8 Sir Frank Lockwood. A Biographical Sketch (1898) p. 59.
9 Hardcastle, (ed.), Life of Lord Campbell (1881) vol. II, p. 348Google Scholar.
10 Foss, , A Biographical Dictionary of the Judges of England (1870)Google Scholar.
11 Hollings, , Jottings of an Old Solicitor (1906) p. 138Google Scholar.
12 Alverstone, , Recollections of Bar and Bench (1914) p. 284Google Scholar.
13 (1888) 23 L.J. 401.
14 The early editions betrayed a certain whimsicality. Thus, in the Index one finds such entries as “Industry—Proofs of Indefatigable—passim” and “Irish witnesses—credibility of.” Under subsequent editors, this sense of fun disappeared.
15 (1834) 6 C. & P. 325.
16 (1693) Holt K. B. 286.
17 The Times, 17 November 1879, p. 4. The judges referred to were Lord Ellenborough C.J., Holt L.J., Gurney B., Patteson and Park JJ.
18 A Letter to J(ohn) P(itt) Taylor in Answer to his Letter in the “Times” of Nov. 17th on the Ruling of the Lord Chief Justice in the case of Reg. v. Bedingfield (1879: London).
19 The Times, 19 November 1879.
20 (1862) 2 F. & F. 850.
21 Cockburn's remarks induced one young barrister, “Long Robe,” to respond in kind: “As one of those young barristers ‘who may be sought for among the very youngest members of the Profession’ I have availed myself of ‘the opportunity of making myself more familiar with the law of evidence in criminal cases’ by a careful perusal of … the Lord Chief Justice's pamphlet … I turned to the elaborate explanation offered by that most distinguished judge. What could I possibly do better? And yet, like him … I too was doomed to disappointment”: (1880) 68 L.T. 177.
22 This was partly owing to one of his own eccentricities. Having assisted Brougham in the drafting of the County Court Acts of 1846 and 1852 and been appointed amongst the first batch of such judges, Taylor much resented being considered a judge at all and strenuously enforced a rule that no counsel should appear before him in robes: (1888) 23 L.J. 401. Cockburn is likely to have known of this affectation of nearly thirty years' duration and to have exploited it deliberately in his pamphlet.
23 It may also be observed that this was not the first time Cockburn had displayed a liking for public controversy. He had indulged this taste the previous year in the ecclesiastical cause of Martin v. Mackonockie (1878) 3 Q.B.D. 730, selecting Lord Penzance as his principal foe.
24 See A Letter to the Lord Chief Justice of England in Reply to his Lordship's Letter on the Bedinfield Case (1880: London), p. 4.
25 (1834) 6 C. & P. 325.
26 He is alleged to have given rise to a saying at the Bar that a thing could be as empty as Mr. Justice Park's wig (with his head in it). For a fuller account of Park J. 's eccentricities, see Doyle, , Reminiscences and Opinions (1886: London), pp. 210–215Google Scholar.
27 (1805) 6 East 188.
28 (1854) 6 Cox C.C. 477. Cockburn refers to it as Lunnun.
29 See, notably, Ratten [1972] A.C. 378 and Andrews [1987] 2 W.L.R. 413.
30 On which point, see now Christie [1914] A.C. 545.
31 (1842) C. & M. 622. See now Lillyman [1896] 2 Q.B. 167 and Osborne [1905] 1 K.B. 551.
32 The Law Times of the day admitted that the Chief Justice's pamphlet was “of course, vivacious; but … not a very judicial production”: (1879) 68 L.T. 146.
33 Taylor, Thomas, A Generation of Judges (1886: London), p. 6Google Scholar.
34 “It was the very man whose success in asking charity of the women before the door of the hotel had so puzzled me—and I found out at once his secret, or at least the basis of it—'twas flattery”: Sterne, , Works (1783) Vol. V, esp. pp. 181–183 and 207–211Google Scholar.
35 (1834) 6 C. & P. 325.
36 (1854) 6 Cox C.C. 477.
37 Interestingly, although several of Cockburn's other sallies into the public arena are mentioned, J. A. Hamilton's respectful portrait of Cockburn in the Dictionary of National Biography omits to mention this one, possibly on account of what he took to be its parochial legal content.
38 Strictly speaking, Cockburn's proper title was Chief Justice of Queen's Bench. However, as one of his obituarists obligingly noted, “He was particularly anxious that on all public occasions he should be described as ‘The Lord Chief Justice of England,’ and it is related that some years ago he had shown him the proof of a placard announcing his intention to take the chair at the United Law Clerks' dinner, when he observed, ‘Why on earth do they call me Sir Alexander Cockburn? I wish they had described me as the Lord Chief Justice of England.’ The placard was corrected accordingly”: (1880) 70 L.T. at p. 69.
39 Hamlet, Act V, Scene II.
40 Nationality: or The Law Relating to Subjects and Aliens, considered with a View to Future Legislation (1869: London).
41 Our Judicial System: A Letter to the Lord High Chancellor on the Proposed Changes in the Judicature of This Country (1870: London).
42 See Nash, . Life of Lord Westbury (1888) vol. II, p. 223Google Scholar.
43 A Letter to the Rt. Hon. Lord Penzance, Dean of the Court of Arches, on his Judgment in the case of Combe v. Edwards (1878: London).
44 “But when the assailant is a Brother Judge, of your Lordship's eminence and distinction, it is time to stand on the defensive”: ibid, pp. 5–6.
45 Hansard. 1875. vol. CCXXIII , col. 1598. Maugham, Lord agreed with this assessment, considering Cockburn to have been “an admirable Judge, an excellent lawyer, a man with a wide knowledge of literature and possessed of a remarkable personality” (The Tichborne Case (1936: London), p. 319Google Scholar. Holdsworth, , too, concluded that he was “a great judge and a great lawyer” and “though all would not perhaps agree—a greater lawyer than Campbell” (A History of English Law (1965: London) 2nd ed.Google Scholar. by Goodhart and Hanbury, vol. 15, pp . 435 and 429).
46 Cockburn was “worthy to have found a Boswell. Sir, Alexander was one of the few who in our time won fame alike at the Bar, in the House of Commons, and on the Bench. But he ought to have won fame also as a sayer of good things, and to win such fame he only needed a faithful chronicler”: Reminiscences (1899: London) 2nd ed., vol. II, p. 227Google Scholar.
47 See. e.g.. , Bowen-Rowlands. Seventy-Two Years at the Bar (1925), pp. 241–242Google Scholar.
48 Some Experiences of a Barrister's Life (1883), pp. 283–284. Ballantine's view was obviously not unique. As one commentator, reviewing Cockburn's pamphlet, remarked: “He had made up his mind. as is usual with him. upon reading the depositions—a very dangerous course, as this case shows. and other cases tried before him have shown” ((1879) 68 L.T. at p. 147).
49 Bench and Bar (1899), pp. 196–197 and 246.
50 Life in the Law (n.d.), p. 109.
51 Harris, (ed.), The Reminiscences of Sir Henry Hawkins (1904) vol. I, p. 328Google Scholar.
52 A Generation of Judges (1886), p. 6. This is borne out by Bramwell's, Lord report that “Chief Justice Cockburn liked a page of The Times daily devoted to him and his performance, and he picked out of the general list cases which would afford him that gratification”: Manson, Builders of our Law during the Reign of Queen Victoria (1904: London) 2nd ed., p. 162Google Scholar. See also Lord Coleridge's letter of 19 October 1881, quoted in Fairfield, , A Memoir of Lord Bramwell (1898: London), p. 73nGoogle Scholar.