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Chapter XIV
Judges I Have Known

The first Judge of whom I have any recollection is the late Mr. Justice Johnson. He had ceased to be, long before I became a member of the legal profession, but he was a familiar figure in the life of the Colony in my boyhood. He was appointed to the New Zealand Bench from the English Bar. He had never practised in the Colony, but was, on his arrival, in our homely phrase, "a new chum." He came among us full of a sense of the dignity of his office, and evidently expected to find all the pomp and circumstance that surrounds an English Judge transplanted here. But he soon found life in the new settlement simpler and less ceremonial. Judges in New Zealand do not wear scarlet robes or even full-bottomed wigs; black silk gowns and bench wigs are here the vogue. When a Judge in New Zealand opens the sittings in a town where he goes on circuit, he is not driven from his hotel to his Court in a gorgeous coach [gap — reason: illegible]rawn by horses richly caparisoned, nor is he attended by javelin men. He usually walks from his hotel with no other attendant than his associate or private secretary. If the distance be far, he hails a taxi like an ordinary citizen. It is not till he actually enters his Court and takes his seat upon page 184the Bench that any ceremonial is observed. But while a Judge in New Zealand is surrounded with little pomp, neither his personal bearing nor the ceremonial procedure of his Court is, I venture to think, lacking in dignity.

Shortly after Judge Johnson arrived in the Dominion, he proceeded to Napier to open the circuit sittings there. This was, I think, in 1860 or 1861. The Sheriff had heard rumours that the new Judge was a stickler for form and ceremony. He managed to hire from a livery stable quite a presentable open carriage drawn by two white horses which looked more or less a pair. He had rescued from the bottom of a sea-chest, where it had lain since his arrival in the Colony, a frock coat. He had even managed to procure a top-hat for the occasion, and with a pair of white gloves and a freesia in his buttonhole, the Sheriff thought he had done himself rather well.

Not so the Judge, however. When the Sheriff presented himself at the door of the hotel and proceeded to show the Judge into his carriage:

"Where are the javelin men?" asked his Honour sternly.

The Sheriff explained that we do not have javelin men in New Zealand.

"See to it when next I attend the Assizes in your town that proper respect is paid not to my dignity, but to the dignity of my office."

Where the poor Sheriff had secretly hoped for a compliment he received a snub; but he was in due course avenged.

Six months later the Judge came again to Napier to hold sittings. He had by this time learned page 185something of the ways of colonials, and no longer expected javelin men, but he got them—with a vengeance. It happened that a company of travelling barnstormers were playing a season of melodrama in the town during assize week. The Sheriff engaged four men of the company to take part in the opening of Assize. They were rigged out in tawdry finery, theatrical "properties," with helmets and breastplates of tin, and with buskins of tragic impressiveness; they carried javelins of lath, the blades pasted over with tinfoil. Never were seen such sorry-looking scarecrows since Falstaff mustered his ragged regiment at the battle of Shrewsbury. The people in the town had got wind of what was toward, and a small crowd had gathered in front of the hotel. When the Judge came out to enter his carriage, they raised a cheer, not without its derisive note. That was the first and last occasion upon which a Judge in New Zealand was attended by javelin men.

The Judge soon learned to adapt himself to colonial life, and, in fact, became very popular socially in the circuit towns he visited. He was musical, and always took an interest in concerts of local musical societies. The popular form of entertainment in those simple days was Penny Readings, as they were called—mixed programmes of orchestral music, choral and solo singing, readings and recitations. On several occasions during the sixties the newspapers in Napier report the Judge as giving readings himself at these functions, from Dickens and Thackeray, and even responding to what the paper called "vociferous encores."

A young Englishman called Nesfield was the page 186proprietor of a livery and bait stable in Napier in the early sixties. He was a gentleman who had been sent out, as were so many of his class in those days, to cool his youthful ardour in the Colonies and learn to live within his means. He had a pretty taste in horseflesh, acquired on Epsom Downs and from following some of the best packs in England. But as his income did not permit him to indulge his taste in horseflesh by keeping a private stable, he took to the "livery and bait" business, and so was never short of a good mount for himself when he wanted it. In those early days more than half of the proprietors of livery stables in New Zealand were gentlemen who had taken to that business from the same motives as Nesfield. It never occurred to anybody to suggest that keeping horses and traps for hire placed a man under any sort of social disqualification.

Nesfield had imported a hansom-cab, the first of its kind, I believe, to be seen anywhere in New Zealand. It was, of course, quite unsuited for driving about the stiff hills of Napier, but Nesfield did good business with it, no doubt because of its novelty.

On one occasion when Judge Johnson was holding a sittings of the Court in Napier he was invited to a ball given by a Colonel L——, so he ordered Nesfield's hansom to drive him and his associate. But Nesfield had a card for the ball himself; why not combine business with pleasure? Why waste the time of one of his men to hang about the Colonel's stables all night in order to drive the Judge back. So he put on a long overcoat—we called them ulsters in those days—mounted the dickey, and page 187himself drove the Judge and his associate to the ball.

Towards midnight Colonel L—— noticed the Judge, who did not dance himself, looking, as he thought, weary of the festivities, so went up to him and said, "Please do not stay on out of compliment, Judge; I know you have a heavy day in Court before you to-morrow."

"Thank you," said the Judge; "I really do want to go, but I can't get away: that damned cabby of mine is dancing with your daughter."¹

In those days the finding by the Grand Jury of "true bill" or "no bill" on an indictment was made known with some little ceremony. The person indicted was placed in the dock, then the Grand Jury's finding was announced by the Sheriff by solemn proclamation. An old "lag" with many convictions against him in Australia had arrived in New Zealand to practise his calling—burglary. He was committed to stand his trial at the sittings in Timaru before Mr. Justice Johnson. There was a strong prima-facie case against him, but the Grand Jury was stupid about it, and threw out the bill of indictment. The accused was placed in the dock, and the Sheriff duly proclaimed "No Bill." This procedure was a novelty to the accused, whose experience hitherto had been limited to Australian Courts. He was a little hard of hearing, apparently, and not catching the words of the Sheriff's proclamation, he blurted out "Guilty, your Honour." A titter went round the Court.

"How dare you?" said the Judge in his sternest page 188tones—"how dare you say you are guilty when the gentlemen of the Grand Jury have found no bill against you? How dare you?"

The astonished burglar, embarrassed and apologetic, was promptly removed from the dock, but the usher's stentorian "Silence in the Court" could not suppress the laughter.

But though Mr. Justice Johnson's sense of humour and appreciation of the spirit of colonial life saved him from any repetition of the javelin-men episode, he remained to the end a stickler for decorum, and was particularly severe upon members of the Bar who appeared before him improperly robed. On the trial in Christchurch of a civil action, a gentleman, whom I will call Mr. Black, was Counsel for defendant. The case was not expected to last more than an hour or two, and as Mr. Black was engaged in the afternoon to play lawn-tennis, he ventured to appear in Court in a pair of light grey flannel trousers. In his locker in the robing-room he kept the conventional black coat and waistcoat, and with these and his stuff gown held together around him, he hoped the light-coloured trousers would escape observation. When the case was called:

"I appear, may it please your Honour, for the defendant," said Mr. Black.

The Judge stared blankly at him. "Is the defendant not represented by Counsel?" asked his Honour.

Mr. Black raised his voice, thinking he had not been heard. "Yes, if your Honour pleases, I appear."

"Who appears for the defendant?" said his page 189Honour, still asking for information. "I cannot see any Counsel appearing for defendant."

Counsel for plaintiff sought to come to the rescue. "My learned friend Mr. Black, sir, represents the defendant."

"You must be mistaken," said the Judge, with freezing courtesy. "I cannot see Mr. Black. I am sure he would never present himself in my Court in light grey trousers. The Court is adjourned for fifteen minutes to enable the defendant to be represented."

So poor Black did a lightning change with his clerk, who fortunately happened to be wearing dark trousers, and when the Court resumed, Mr. Black was duly "seen" and the trial proceeded.

I personally think it is a matter for regret that some of Mr. Justice Johnson's successors on the Bench, and I include myself among these, do not emulate his strictness in such matters. Since the abolition of articles in New Zealand, young men enter the profession at times without much opportunity of learning what is "good form," and what is not, in matters of that sort. I have seen able and even brilliant young members of the Bar, who certainly ought to know better, pass in the street a Judge to whom they are personally known without lifting their hats, quite ignorant obviously of the rule in such matters, and quite oblivious of the fact that in breaking that rule they derogate not from the Judge's dignity, but from their own. I have noticed them look quite surprised when a Judge has failed to "see" them under these circumstances. But I have observed them look even more surprised when they have met me; for I page 190usually employ the simple expedient of raising my hat to them and on our next meeting I find the hint has generally been taken.

I have never been able to understand why so many Counsel in New Zealand find it too much trouble to keep a morning coat in their robing locker for use in Court. They appear sometimes in a dark blue or brown sac suit. That is bad. But infinitely worse is the slovenly habit one notices in some Courts of compromising with the colour convention by wearing a black alpaca coat under their gowns. I often wonder why the Law Societies in New Zealand cannot persuade their barrister members not to appear in Court in the attire of an ironmonger's assistant.

The Judge whom I knew best was the late Mr. Justice, afterwards Sir John, Denniston. During more than half of my twenty years at the Bar I was constantly in his Court. My first appearance before him was in the case of Warner's, Ltd. v. The Lyttelton Times Co., Ltd., to which I have made reference in a previous chapter. I was, as I hoped, decently and properly robed—wig, bands, gown, and even "blue bag" had just arrived the week before, spick and span, from Ravenscroft's. Whatever he might think of my law, the Judge would, at any rate, be satisfied with my clothes. But, alas! he wasn't. The "knuts" of that day—the word had not then been invented: "dudes," I think, was the slang of the moment—used to wear double collars —what we called stand-up-turn-downs. I ought to have realised that these were as much out of place with barristers' robes as they would be with evening clothes, but I appeared in Court in a "stand-up- page 191turn-down" collar. When the Court adjourned, the Judge's associate, who happened to be a personal friend of mine, frankly went a-fishing, hoping to extract from his Judge some words of commendation on the maiden effort of his friend; but all I got was this message: "Tell your friend Alpers that I shall be glad if he will not appear in my Court in future wearing a barmaid's collars." This could scarcely be called encouraging.

I am glad to say that Judge Denniston's critical attitude towards me did not last long. There were in the first few months some painful "breezes in Court," as the newspapers like to call them; but once I discovered the right way to deal with him we became fast friends, and there was no more trouble. Whenever a "breeze" had occurred, and he had scarified me, as he sometimes did, too severely, I used to seek an interview with him in his chambers, and then and there frankly, and I fear sometimes heatedly, make my protest. These interviews always ended in the same way—mutual expressions of regret for the misunderstanding, a quip or a pleasantry from one or the other, and complete friendliness restored. When once I discovered, as I did by accident, that in spite of the sarcastic chastisement he meted out to me he really rather liked me than not, and when once I realised that he was at heart one of the kindest men I had ever known, there ceased to be "breezes in Court" as far as I was concerned.

Judge Denniston was not only a sound lawyer but a sound scholar. In his summing-up to a jury, or in an oral judgment delivered without preparation, he was sometimes distressingly parenthetical. page 192As Thomas Carlyle would have said, he used to take a long dive with the verb in his mouth, and come up at the end without it. But his written judgments are models of lucid English prose. Both in speech and in writing he had, I used to think, a wonderful felicity in the choice of words. I have seldom known anyone to whom the mot juste came so readily. I remember on one occasion arguing a complicated case before him for several hours one afternoon. The argument presently developed into a dialogue—as it always did when the Judge was really interested—and I got right away from my notes. I had not finished when the Court adjourned, and when I resumed my argument next morning I really had no very clear idea how much of the ground I had covered. I apologised for possible repetitions. I feared I had presented his Honour the day before not so much with an argument as with the disjecta membra of an argument. He promptly set me at my ease: "You will find that the disjecta membra of your argument are all on my notes, and have, if I may say so, articulated themselves in my mind." Articulated—I thought it was perfect.

Occasionally his fondness for literary allusion got him into trouble. A fussy little barrister, of a type seldom seen outside the pages of Charles Dickens, was my opponent in a witness action. He was outlining the evidence he was about to lead, and said, "I propose to call next a most important witness, Mr. Mahoond." The unusual name evidently tickled the Judge's ear, as it did mine, and he said in an aside to me from the bench, "Not, I hope, the false Mahoond." The aside was unfortunately page 193overheard, and the fussy one positively spluttered with indignation: "Most unmerited observation, your Honour—I must protest. He is a most reliable and truthful witness, a highly respected farmer, much esteemed in the district," and more to the same effect.

Nothing the Judge could say would stem the tide of the fussy one's indignant protest. The Judge assured him that his remark was merely an allusion to Spenser's "Faerie Queene," of which he felt sure Counsel must have heard; but the little man continued to splutter his protests, and the Judge was finally compelled to order him with some sternness to resume his address.

Judge Denniston never found it easy to suffer fools gladly. On country circuits when country practitioners, ill-equipped and ill-prepared, used to appear before him, his temper was sometimes severely tried. This fact, no doubt, accounted for the misunderstanding of a telegram on one occasion. He had been holding a sitting at Westport, the town where the famous Westport coal comes from, coal on which the H.M.S. Calliope steamed out of Apia Harbour in 1889 in the teeth of the hurricane. Westport has a bar harbour, and when the wind is southerly the small steamers trading to the port cannot always cross the bar, and are sometimes detained for several days. The Judge had intended to proceed by sea to Wellington, where the Judges were to assemble on the following Monday for the sittings of the Court of Appeal. But a southerly gale compelled him to change his plans, and to adopt the longer route overland to Nelson. So he telegraphed to the Registrar of page 194the Court of Appeal in Wellington: "Cannot arrive till Tuesday. Bar here impossible." The Registrar laid this telegram before one of the other Judges, esteemed for his profound knowledge of law rather than for his sense of humour. "I am not surprised," was his comment; "my brother Denniston has often told me that those West Coast lawyers are a cantankerous lot."

Judge Denniston was not only a just Judge but a merciful Judge. If he could find any reasonable excuse for granting probation to a first offender, or giving him some punishment short of herding him with criminals, he never failed to do so. I am afraid those of us who practised before him at the criminal Bar occasionally took unfair advantage of what we knew to be his merciful weakness in this direction. I remember a particularly bold case of cattle stealing in which I was retained for the defence. It occurred in the first year of the War. Judges all over New Zealand were getting a little tired of what had by that time become a stock plea: if his Honour could see his way to grant probation or order the prisoner to come up for sentence when called upon, he would forthwith enlist. Judges were inclined to be sceptical of this new patriotism in criminals. At the same time we wanted men, and a resourceful and daring criminal often made a devil-may-care and dashing soldier.

The young man I was appearing for was a first offender, but his offence was of a kind for which probation was not usually granted. He was working on an up-country station, in receipt of the high wages ruling because of the shortage of men. Drink and gambling had got him into trouble, and page 195he found himself in the clutches of an unscrupulous bookmaker. So he mustered some fifty head of cattle off the "back country" of a neighbouring farmer, and, with the aid of a good team of dogs, drove them by devious ways on to the plains, reached D—— on the very day of the monthly cattle sale, sold the beasts, and got away with a substantial cheque. In less than a month the police got him, and he found himself the inmate of a prison. I rather think his first feeling was one of surprise. That at least was the impression I got when, bail having been granted, his old father brought him along to me. The big wages he had been earning had turned his head; associating with flash bookmakers, "chewing beer and eating cigarettes," as his father put it, had been his undoing. Could I possibly get him probation? I had told him that his only hope lay in a plea of guilty and prompt enlistment; but when I looked at him I doubted gravely if he would be accepted. Blear-eyed with drink, with a blotchy complexion and narrow-chested, he looked poor material for a soldier. And yet he had been a hill-country shepherd; he had some excellent testimonials from earlier employers, and must have been a hefty young fellow before he allowed himself to run to seed. At any rate, I sent him straight away to the recruiting office, where he was accepted, subject, of course, to medical examination.

But sheep, horse, and cattle stealing are naturally not offences to be treated lightly in a pastoral country, and I was quite unable to cite any precedent for granting probation for such a crime. The Judge for once was obdurate. He could enlist, said the page 196Judge, when he came out of prison—the country would probably still be wanting him. Unfortunately only shortly before this Lord Kitchener had predicted a three years' war. I urged my point further, but I could not move the Judge.

"We don't want to send away a New Zealand army composed of criminals. There are, thank God, still plenty of fine young men willing to serve their country."

And then I fired my last shot. The accused was a Lowland Scot—his forbears had lived for generations on the Border; cattle-reaving was in his very blood. I begged the Judge to remember that it had been at one time regarded in Scotland as an honourable calling. Knowing his admiration for the Waverley Novels, I asked him if there was in all fiction a manlier type than Rob Roy? That did it.

"Really, Mr. Alpers, you are incorrigible."

And when the Judge said that I always knew I had gained my point. "You will be telling me next that some of my own forbears were cattle-reavers. I think I am going further than I ought, and setting a thoroughly bad precedent, but I'll give him probation if he proves to be medically fit for service."

To my great delight he was accepted, and went into camp at Trentham. On each of his week-end leaves when he came down to Canterbury to visit his people he used to come in to see me, ostensibly to show his gratitude, in reality to show his "fitness." I never saw such a remarkable change In three months. All traces of beer and nicotine had vanished from his system; his eye was clear page 197and his glance fearless. He had the silken skin of a trained athlete; you could have cracked walnuts on his cheek-bones. As Masefield says in his wonderful description of the Australian and New Zealand Army Corps just before the landing at Gallipoli, "They were in the pink of condition and didn't care a damn for anybody."

Ultimately, no doubt, conscription would have caught him, but that was still a long way off in New Zealand. He left, I think, with the 7th or 8th Reinforcement. When he came to bid me goodbye on his final leave, he looked a magnificent specimen of manhood. At the door of my room he turned, and, giving me a grip of the hand that made me wince with pain, he said, with a curious note of hesitation, "Before I go I want to say something to you that you mightn't understand."

"Out with it," I said, "and chance it."

With a final grip he said, "I'm damned glad I stole them cattle."

I saw afterwards that he got a D.C.M. on the Peninsula, and later, in France, he stopped a bullet on Messines Ridge.

For nearly fifteen years I practised in Judge Denniston's Court. Before taking leave of him, let me say this: his intellect was above all things else alert; he was a sound lawyer, a polished scholar, a brilliant wit. His love of justice amounted to a passion. And best of all, he was a man of infinite kindness of heart.

Of the other Judges before whom I occasionally practised during my career at the Bar, the one who stands out as the most distinct and interesting page 198personality is the Right Hon. Sir Joshua Strange Williams, P.C. Fortunately most of the Judges of whom I had personal experience are still alive and even in office, so they are necessarily excluded from these reminiscences.

The very name of Judge Williams is redolent of the law. He was a son of Joshua Williams, Q.C., the great conveyancer and historical jurist, whose "Law of Real Property" has been for so long the classical authority upon that topic. One felt instinctively that New Zealand was honoured in having such a man as a member of its judiciary. It was exceptionally interesting occasionally when some nice point in Real Property Law was being discussed before him to hear him say that he had had the advantage of referring to a marginal note in his father's handwriting in some early edition of his book. During his later years the family "mana," which seemed to attach to Williams J. as a real property lawyer, was enhanced when his half-brother, T. Cyprian Williams, published his great work on the "Law of Vendor and Purchaser."

When Mr. Joshua Strange Williams arrived in New Zealand in 1861 he took up his residence in Christchurch and threw himself with great zest into the public life of the little settlement. He was an original member and the first Chairman of the Board of Governors of Canterbury College, and had much to do with shaping the ideals and destiny of the new University. He was admitted to the New Zealand Bar and practised for some years in Christchurch; but when the Land Transfer system (the Torrens Act) became law in the Colony, Mr. Williams was appointed District Land Registrar page 199for Canterbury. In 1875 he was appointed a Judge of the Supreme Court, and entered upon that long and distinguished career which ended in the Privy Council. He was one of the few members of the Colonial Judiciary whose fame as a lawyer extended beyond the confines of his own Colony.

He was not the sort of man round whom stories gather. He was far from being a dry-as-dust lawyer; he had a droll and sometimes caustic humour which was entirely his own; but anecdotage, which clings to some men, avoided him.

There is, however, one story which is characteristic. It happened that he was several years on the Bench before it fell to him to sentence a prisoner to death. Laymen persist in thinking that that is a dreadful responsibility. It has not yet fallen to my lot to do it, and so I can't say how I shall feel under such circumstances, if they arise; but logically it ought to be the sentence which gives a Judge least concern, for he has no option or discretion in the matter. Once a jury brings in a verdict of murder, the sentence to be pronounced, and even the very formula in which it is expressed, is prescribed by statute. It is a pity that we have to go through the medieval ceremony of putting on a black cap—that is rather gruesome, I have always thought, and a melodramatic detail in questionable taste. But apart from that the Judge has merely to say, in the words of the statute, "You shall be taken to the place of execution and there hanged by the neck until you are dead." The Judge who harrows his own feelings and those of his hearers and the accused by maudlin moralising has only himself to thank. If he pronounces the formula in page 200a dry level voice, he will probably get through the ordeal without any emotional strain. It is a very much more serious matter when some first offender is before you who has ruined a promising career by a lapse into crime; when perhaps it is a woman who has fallen from honesty, or when it is a middle-aged man whose wife and family have shame and sorrow brought upon them. Then the question of what sentence to mete out, whether probation or a term of imprisonment, long or short, involves a very grave responsibility that may well give one sleepless nights. But in the case of the death sentence, it is upon the executive, not upon the Judge, that the whole responsibility of the prisoner's fate devolves.

It so happened that Judge Williams had to pass sentence of death for the first time on a day when his wife was giving a large dinner party at his house, arranged some time before. In the drawingroom the guests were assembled before the Judge came downstairs, and his wife, much agitated and upset by what had occurred, begged them to be very guarded in their conversation, and make no allusion even the most distant to Courts or trials, lest they call to his mind the "dreadful experience" of that afternoon.

That was not a very promising beginning to a dinner party. "The weather" saw the guests through the soup, but that topic would not fill out the whole evening. The bolder spirits, with the fish, tried the latest play, or even the best score at golf on the local links. But it was a very dull party, as bad almost as Wordsworth's "party in a parlour, all silent and all damned." With the page 201entrée it flashed upon the Judge's mind what was the matter. Raising his voice and addressing his wife at the foot of the table, he said, "My dear, I had the very great pleasure this afternoon of consigning an unmitigated scoundrel to his doom."

And so that dinner party was quite a success— after all!

The late Sir John Salmond, many years ago, told me a story which I have always regarded as one of the best legal stories I have ever heard. He did not tell me where it came from; I have never heard it from any other source, nor do I know of anyone who has. I have read in my time many books of legal reminiscences, good, bad, and indifferent, but I have never seen that story anywhere in print. Is it a chestnut? Or is it by some strange chance a good story that has escaped the anecdote-collectors? I determine to risk it, and here it is:

It is a story of the seventies, when the fusion of law and equity took place and occasioned so many strange "mix-ups" in the work of the Judges. Elderly gentlemen, accustomed all their lives to applying equitable doctrines in suits where they only gathered the fact from affidavits, found themselves suddenly confronted with actions at nisi prius. They had to distinguish the true from the false as told by witnesses in the box in the language of a workaday world instead of in the pedantic phraseology of equity clerks.

An elderly Judge sat with a jury for the first time in his life to try a particularly brutal murder case. The deed had been done with an axe, and one might reasonably have expected the case to smell of blood. page 202But there was no allusion to blood or blood-stains from beginning to end. This was the Judge's summing-up:

"It must have struck you as strange, gentlemen, that in this case, where it is alleged that the victim was done to death with an axe, there is so little allusion in the evidence for the prosecution to blood or blood-stains. There is, indeed, one sentence you will remember which seems to me most significant— but, of course, gentlemen, its significance is entirely for you. I merely draw your attention to it. And it is perhaps my duty to remind you that counsel for the prosecution does not appear to regard it as important, for nowhere does he advert to it throughout his exhaustive and, if I may say so, very able analysis of the evidence. But you will remember, gentlemen, that one of the witnesses deposes to hearing the accused, when he was in the act of getting out of bed the morning after the murder was committed, use these words to his wife:'Maria, chuck us over that bloody shirt.'"