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Chapter XXIII
My Appointment to a Judgeship

On January 28th, 1925, which happened to be my fifty-eighth birthday, I received a letter from a member of the Judicial Bench inquiring whether, in the event of a vacancy occurring, he might mention my name to the Attorney-General, in whose hands lies the initiative of appointment to the Bench in New Zealand, as that of a member of the Bar who would, if invited to do so, accept a Judge-ship. The suggestion came as a complete surprise to me, because, as I was thirty-eight years of age when admitted to the Bar, and had therefore had only a very limited experience in the legal profession, it had never occurred to me that I was ever likely to be deemed qualified for such a position. Nor did it now occur to me. I interpreted the letter as merely the kind thought inspired in the mind of a too generous friend by some recent work of mine in the Court of Appeal.

The answer to that letter naturally involved my wife and myself in much thought. I had lived for forty years in Christchurch. We had a beautiful riverside home there to which we were much attached, and our children were all placed in good schools.

The acceptance of a Judgeship meant uprooting page 340ourselves from Christchurch with all its happy associations, and establishing ourselves in a city where we were practically strangers, and where a home such as we had been able to afford in Christchurch would be quite beyond the emoluments that are enjoyed by a Judge in New Zealand. In a small community such as this, where the work of the higher Courts is distributed among four small cities, it is not found practicable nor desirable that a barrister, when appointed to the Bench, should for the first few years at any rate preside over the Court in which he has been practising. Hence appointment usually entails a change of home; in my case, a change to Wellington.

I had been for fifteen years a member of the firm of Garrick & Company, established in the early sixties, and one of the three oldest firms in Christchurch. Several changes had taken place in the constitution of the firm, and by 1925 the business belonged to my partner, Mr. F. I. Cowlishaw, and myself. A great part of my capital consisted of my share in the goodwill of this business. The acceptance of a Judgeship entailed the giving away of this, because, according to the high traditions of the British Judiciary, a barrister, or, in this country, a barrister and solicitor, does not on appointment sell his goodwill.

But in spite of these sacrifices which must necessarily be made, I had no hesitation in the matter. I felt that questions of finance and economic considerations were not matters that should be taken into account. My qualification and fitness for the office of a Judge should alone weigh with me. So I replied that if I were indeed thought competent page 341and experienced enough to fill the position, and if the Government were to offer it to me, I would, in my own phrase, "follow my star." A few days later, on the resignation of Mr. Justice Hosking on account of ill-health, I was offered and accepted the vacancy.

There was a strange coincidence associated with my appointment of which I am very proud. The Consul-General for Denmark in Australasia, Herr Ove Lunn, had recently visited New Zealand, and induced me to accept the position of Honorary Consul for Denmark with jurisdiction over the South Island. I felt that a Consul should have commercial rather than professional training, but I was after all the leading representative of my country in the Dominion, I had never lost touch with my native land, and I still spoke and wrote my mother-tongue. I felt, therefore, that I might be of some service to my country and formally applied for the vacant consulate.

On the afternoon of February 4th I received a letter from the Minister of Foreign Affairs at Copenhagen, notifying me of my appointment. On the morning of February 5th came the letter from the Attorney-General of New Zealand offering me a Judgeship. So that within twenty-four hours I was appointed to a post of honour by the Government of my native land as one of His Danish Majesty's Consuls, and by the Government of the land of my adoption as one of His Britannic Majesty's Judges.

On my acceptance of the Judgeship I cabled my resignation of the consulate which I had held for exactly eighteen hours. I remembered at once that page 342there was a parallel for this brief consulate in the history of Rome, and that there was an amusing allusion to it somewhere in Cicero. In my letter to the Minister for Foreign Affairs confirming my cable I alluded to the incident in the history of Rome, and begged him to convey to His Majesty King Christian X my respectful assurance that "during my tenure of office as Consul I had made no mistakes," though I was unable to say, with the Roman Consul, that I had never slumbered during my term.

It is only quite recently that I have been able to trace the allusion and verify my recollection of Cicero's joke which I read forty years ago. The Consul's name I find was Caninius; Cæsar appointed him some time after noon of December 31st to hold office till the end of the year, that is, until midnight. This is the reference in Cicero:

Ita Caninio consule scito neminem prandisse. Nihil eo consule mali factum est; fuit enim mirifica vigilantia qui suo toto consulatu somnum non vidit. (Ad. Fam. 7. 30.)

It is odd that I should have forgotten the best part of Cicero's joke—neminem prandisse!

There was another locus classicus recalled by my appointment, not to me, but to Sir Francis Bell, the Attorney-General, who drew my attention to it. It happened that on the evening of the day on which my appointment was announced in the newspapers, my wife and I attended the theatre to witness a performance by Seymour Hicks and his Comedy Company. The orchestra was still playing the overture, when, no doubt to the annoyance of the conductor, and to the very acute embarrassment of page 343my wife and myself, the whole audience burst into a round of applause. It began, I need not say, among the ever-benevolent "gods," but quickly spread through the whole theatre and was unmistakable both in its warmth and its significance. I was very proud of and touched by this generous tribute from my fellow-townsmen, among whom I had lived and worked for forty years, and I must admit that I was very glad that the lights in the auditorium, for the moment, were low. When Sir Francis saw an allusion to the incident in the Wellington papers, he wrote and drew my attention to Odes I. 20, where Horace invites Mæcenas to visit his Sabine farm, and to drink of his Sabine wine, humble in quality, but bottled by the poet himself, and carrying in its date a pleasant reminiscence of an incident in the life of his patron:

datus in theatro
Cum tibi plausus.

If this reception by my fellow-townsmen was gratifying, equally so was the fact that I had what actors call "a good Press." This again, however, I owed to the generosity of my friends rather than to their considered judgment. It was not vox populi that spoke through the columns of the newspapers, nor was it vox Dei. It was, to be candid, vox ludi, the voice of the school. All the city newspapers, in their editorial columns, commented favourably on my appointment, but then no less than four of these, besides three others at that date were edited by "old boys," with all the bias of old boys in favour of the school where they were taught, and of the masters who had taught them.

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I don't know who was the leader-writer responsible for the comment upon my appointment in the Auckland Herald. But he must have been an old boy, with memories dating back to the Lower Third at least. For he compared me with Joseph Conrad, in that he too wrote in a medium that was not his mother-tongue. "Like the novelist," said this too indulgent critic, "the new Judge has attained recognition as an accomplished and forceful writer of a language not his own. "The leader did, however, point out that Conrad had reached manhood before he learned a word of English, while I had made a beginning before I was ten. And if the critical reader of these pages finds little justification in them either for the "accomplished" or the "forceful" of the eulogy, I would beg him remember that here, nescio quid meditans nugarum, I have relaxed, and that much of this book has been written in dressing-gown and slippers, most of it dictated from a sick-bed in pyjamas. If the reader be interested in discovering my style at its best, I must respectfully refer him to the New Zealand Law Reports: to my learned dissertations therein on such fascinating topics as trade marks, to the unravelling and the pellucid exposition of Maori land tenure "plots," and even to luminous analysis of obscure clauses in the Rating Act—promptly reversed, it is true, by my brethren in the Court of Appeal—with their usual vigour, but not, I-hope, on the ground of shortcomings of style.

Once more, on entering upon a new profession, my fourth, and my last, I had an attack of stage fright. The gaps that existed in my legal knowledge became chasms that positively yawned before page 345my frightened vision. But I soon learned that writing judgments was much easier than writing opinions had been, because in forming your judgment on the Bench you have the aid of competent Counsel who put both sides clearly and exhaustively before you, while in forming opinions at the Bar you have either no help at all, or the help of a young, eager, and enthusiastic "devil" always disposed from obvious motives to persuade you to the opinion which he knows your client desires you to arrive at. I had not been long upon the Bench before I realised the truth of Lord Wensleydale's observation, and found how much pleasanter it is to spend your life seeking for the truth than to pass your days searching for an argument.

It will probably surprise most lay readers to be told that the work of a Judge, whatever it may be in reality, certainly seems to be much less responsible than the work of a barrister with a large Court practice. The unsuccessful litigant cannot blame the Judge for the loss of his case. He visits his disappointment and sometimes his anger too upon the Counsel who advised him to bring or to defend the action.

One of the difficulties that must often give pause to an advocate when he is invited to become a Judge was resolved in my own case by the recollection of a personal experience when I was a journalist. How shall an advocate, who has been all his days at the Bar a fierce fighter, the type of man who because of his very temperament must persuade himself first before he can persuade Judge or jury, and who identifies himself in interest with the cause of his client of the moment, how shall such a man page 346when suddenly called to the Bench acquire the poise and balance and impartiality demanded of a Judge? One knows, as a matter of experience, that Judges do acquire it; for it is notorious that many of our best Judges have been our most strenuous advocates.

In my own case, however, I had no apprehensions on the point. I remembered that in 1900 I was invited with my friend Mr. R. F. Irvine, now Professor Irvine of Sydney University, to write a book for an American publishing house upon the history of New Zealand in the nineteenth century. It fell to me to write the second part of the book, from the initiation of the Public Works policy in 1870 to the entry of the Colony into the Boer War. That covered the period of "The New Democracy": the Seddon-Reeves Labour Laws, the MacKenzie Land legislation, the Ward State Advances, and other radical measures in finance. Throughout these years of fierce political controversy I had been leader-writer on the Conservative side, with standing instructions to attack and criticise all these measures and, if necessary, rough-handle the authors of them.

As was natural at that age (I was between twenty and thirty) I soon became the partisan I was instructed to be, and really believed that all the virtue the Colony contained at that date resided in the bosoms of opulent sheep-farmers and what we loved to call "Captains of Industry." When I accepted a commission to write that most difficult thing, a book of contemporary history, I had to purge my mind of all this Conservative bias, examine Reeves's Labour Laws, and MacKenzie's "burstingup" legislation, and Ward's "frenzied finance," as page 347 it had always been called in our leaders, and see for myself with the naked eye and not through smoked glasses what of merit these things possessed. The danger was that in my anxiety to be fair to the Radicals I might swing over and become unfair to the Conservatives. I fortunately escaped both Scylla and Charybdis, if one may judge by the reviews. The Bookman described my portion of the joint work as absolutely free from party pris. The Westminster Gazette and the Scotsman were equally generous in crediting me with having written an impartial book; while one of the Manchester dailies, I think the Guardian, in the course of a long review, said that but for an admission by me in a footnote it would be impossible to say on which side I had stood in the bitter controversy between the old Conservatives and the new Radicals during the ten years that these bold legislative experiments tore New Zealand political parties asunder, and drew the eyes of the world upon the distant little Colony. If after ten years of fierce partisanship as a journalist I could write what appears to have been generally accepted as an impartial review of contemporary history, then I thought I need be under no serious apprehension that my twenty years of advocacy would warp my judgment as a Judge.

But the question that gave me most concern in deciding how to answer that letter of invitation was the effect the appointment would have upon my enjoyment of life and my demeanour towards my fellows. All through life I had been a gregarious man, much dependent for my happiness upon my friendships. Conversation was my chief hobby, page 348though candid critics who refuse to allow me to quote them have been honest enough to tell me that I failed to grasp even the rudiments of conversation as an art, and that I was nothing more than "an irrepressible monologist." Must I now, as I had seen so many Judges do, hedge myself round with a dignity that with my temperament could sit but ill upon me? Must I guard my every utterance for fear it should be taken too seriously or misunderstood? Or could I, on the other hand, continue boldly, as I had done all my life, to seek my happiness in "the society of friends and the cheerful glass, and candle-light, and fireside conversations, and innocent vanities and jests and irony itself?" Might I still behave, and occasionally misbehave, as that beloved worldling "Elia" did?

Again I found the answer to my difficulty in the experience gained in an earlier profession. I remembered how little formal dignity I had about me when a schoolmaster, and yet how I had dominated boys and maintained discipline, and had won and held their respect and affection. I determined therefore to be very jealous of the dignity of my office and to let my personal dignity take care of itself. What had answered admirably in the rostrum I have so far found answer equally well on the Bench.

On this at least I was fully determined: the acceptance of my new position might entail many sacrifices; there was one I was not prepared to make. If I had thought my appointment would mean the severance of any one of the many friendships I had formed at the Bar, if I had thought it would temper the ardour of the least intimate of them, I should have hesitated to accept. On the page 349contrary, my experiences on circuit have given many opportunities of increasing my friendships, and of these I have taken the fullest advantage.

Of the gifts I have had reason to be grateful for during a very happy life, the greatest of all has been the God-sent gift of winning and retaining friends. Of this I have had during the last months of a long-drawn illness proofs that can never be forgotten by me or any member of my family.

My book, if it is published at all, will, I fear, be posthumous. But, as Noyes Westcott said of David Harum in his letter to Appleton's who finally accepted it, nothing can take away the pleasure it has been to write it. In my case that pleasure has been doubled by being shared. For from the first page to the last every word of it has been dictated to or revised by my wife.

And so

Vale!