The eccentric judge – reformer, feminist and gambler – gets a sensitive hearing in Anthony Lentin’s biography
Justice McCardie was anything but a conventional High Court judge. He left school at 15 and was called to the bar at 25. After ten years of provincial practice he turned down the offer from Joseph Chamberlain of a safe Conservative seat, although politics was then the conventional highway to the bench (unlike now when it is a cul de sac).
He also rejected an offer of silk, after withdrawing an earlier application which he thought the lord chancellor had been too slow to consider, and was, on the initiative of H.H. Asquith, the then liberal prime minister, appointed to the bench at 47 — the youngest of his generation — and the first junior to receive such promotion for over a century.
After his move to London chambers McCardie had become the counsel of choice of many city firms and was often preferred to established QCs. He managed,with the aid of ‘devils’, to conduct several cases at once. He once said, immodestly: ‘My duty consists in walking from court to court to see that my leaders are attending to their business.’ He had every weapon in the advocates’ armoury and worked long hours for high fees. In his last years of practice he earned well over £1 million annually, in modern terms. Known in the Temple as ‘Mac’, he was not only admired but popular with his peers — a double not always achieved in so competitive a profession.
His career on the bench became by contrast increasingly controversial. The philosopher and jurist Francis Bacon wrote that ‘a much talking judge is like an ill-tuned cymbal’. In that respect, McCardie was the full brass band. Not only did he decide cases and direct juries as to what the law was, but he could rarely resist indicating what he thought it ought to be.
In a famous libel case arising out of General Dyer’s suppression of the insurrection at Amritsar in 1919 — when 400 Indians were shot dead — he deliberately expressed his own view that the general had acted rightly. Not only did this challenge the convention that facts were for the jury, but his opinion also happened to be at odds with the government’s accepted version of events — that the general had presided over a massacre. Ramsay MacDonald described McCardie’s statement as ‘unfortunate’, leading the latter to threaten resignation, seek without success the support of the lord chancellor and publish a statement in self-defence in which he described the prime minister’s comment as ‘wholly untrue’.
In 1931, in the aftermath of the world economic crisis, the National Government imposed a 20 per cent cut on the salaries of all persons in His Majesty’s Service. Many judges protested that such action breached the financial guarantees of judicial independence contained in the Act of Settlement, with McCardie, volubly, in the van.
The next year, in the case of Place v. Searle, a grocer’s assistant sued a Cambridge doctor for loss of consortium of his wife. McCardie simply ignored the existence of a cause of action which had stood for almost 200 years and ruled that ‘a married woman today has perfect liberty to leave her husband tomorrow’. He was overturned by the Court of Appeal. Lord Justice Scrutton, a notoriously bad-tempered judge, said that a jury was entitled to a ‘careful and proper direction’; but suggested gratuitously that it was not for an unmarried judge to pronounce on the relation of man and wife. McCardie responded with a prolonged and (on his part) acrimonious correspondence with the Master of the Rolls, seeking, once more without success, to limit Scrutton’s ability to sit on appeals from his judgments.
On other feminist issues too, such as contraception, abortion and divorce, McCardie was far ahead of his time, anticipating later legislative changes. But he was never an appellate judge with the capacity to change even the common law. His obiter dicta favoured the creation of product liability, but it was the Law Lords led by Lord Atkin who pioneered the modern law of negligence.
For so public a figure, McCardie managed, in a way unthinkable today, to maintain a private life. Often mocked for his fascination with female fashion, which was thought eccentric, even prurient, for a bachelor boy, he had two long-term mistresses far younger than himself and an illegitimate son. Generous to those in need, he was also a compulsive gambler, whose assets were further dissipated in the slump of 1929. Stricken with influenza and worn down by criticism, in the spring of 1933 he shot himself.
Unlike old soldiers, old judges do die, if rarely by their own hand — and their reputations also tend to fade away. In this well-researched biography (which is far more judicious than its subject), Anthony Lentin proves beyond reasonable doubt why the Law Quarterly Review — primus inter pares of law journals — described McCardie in its obituary as ‘one of the most interesting men on the English bench’. Interesting he certainly was — though being interesting is not the primary judicial virtue.