McCardie, Sir Henry Alfred
- A. Lentin
McCardie, Sir Henry Alfred (1869–1933), judge, was born on 19 July 1869 at 57 Wellington Road, Edgbaston, Birmingham, one of several sons and fifth of the seven children of Joseph William McCardie, merchant, of Edgbaston, an Irishman, and his English wife, Jane Elizabeth Hunt. His father dying when McCardie was still a child, he owed much to his mother's determination. McCardie was educated at King Edward VI Grammar School, Birmingham. Lively and intelligent but preferring sport and skylarking to study, he was jolted by the challenge of a sceptical schoolmaster into adopting what became the industrious habits of a lifetime. He left school at sixteen, needing to earn a living but uncertain of his future. Some years spent in an auctioneer's office he looked back on as valuable exposure to commercial practice. After several false starts, he decided on the bar. He was admitted to the Middle Temple in 1891 and was called to the bar on 18 April 1894.
After joining the chambers of James Parfitt, in Birmingham, McCardie soon made a name on the midland and Oxford circuits for his exceptional grasp of legal principle—the fruit of intense study—and for clear, logical, and attractive argument. He also proved an enterprising, confident, and persuasive advocate in appeals. 'If you have a bad case,' he would say, 'you have nothing to lose and much to gain' (Pollock, 14). A decade of outstanding success in Birmingham emboldened him to try his luck in London. He joined forces with a fellow barrister, and took chambers in the Temple in 1904.
McCardie's optimism was amply justified. Solicitors vied for his services, and were equally satisfied whether he was briefed to appear alone or led by the senior counsel of the day. McCardie's success lay in immense application and thoroughness of preparation, concealed by a relaxed, informal style of advocacy. He put to good use an inability to sleep for more than six hours a night: his chambers became known as 'the lighthouse' from his lucubrations into the small hours. He handled a heavy and varied caseload with unruffled temper despite the pressures on him: his diary for one day records twenty-one cases in twenty-one different courts. His knowledge of case law, aided by a photographic memory, was encyclopaedic. He was also steeped in the intricacies of interlocutory pleadings before ‘masters’. He impressed judge and jury by his businesslike presentation of cases and his skill in clarifying the issues—'he could summarize an intricate argument in a sentence' (Pollock, 19). In cross-examination he never sought to browbeat; rather he triumphed by a quiet, friendly approach, a modest, winning charm, and an easy good humour, free of any self-assertion, his wig cheerfully askew.
McCardie was popular and respected at the bar. A question of professional etiquette arose when his leader, Marshall Hall, indignant at a judge's hostility, walked out of court in the middle of a case, and McCardie followed him. The consensus was that, as the most experienced junior in the Temple, McCardie must be right. He represented the main banks and railway companies and many titled litigants and theatrical stars. In his last ten years at the bar his was by far the largest junior practice in the Temple. His annual earnings averaged over £20,000, an enormous sum for the time. He declined to enter politics, despite the promise from Joseph Chamberlain of a safe seat—being unwilling, as he said, to submit to any 'party creed' (Pollock, 23).
In 1910 McCardie submitted his name to Lord Chancellor Loreburn for consideration for silk; but Loreburn's well-known conscientiousness led to a long delay in reaching a decision, and this delay damaged McCardie's practice. McCardie withdrew his application, letting his reason be known, and refused to reapply even when Loreburn offered to grant it. McCardie was thus still a junior barrister when, on 12 October 1916, on the promotion of Sir Thomas Scrutton to the Court of Appeal, Lord Chancellor Buckmaster appointed McCardie a judge of the King's Bench Division at the recommendation of the prime minister, H. H. Asquith. He was knighted on 23 October.
As a judge McCardie at once displayed two characteristics, neither hitherto suspected, which place him in a class of his own. His reserved judgments were as comprehensive and as carefully crafted as though written for a legal monograph. He made a point of reviewing all available authorities, however many there might be, in order to extract from the totality of precedents their common principle and to reduce that principle to a limpid and authoritative statement of the law. His ability to trace a line of reasoning in clear and simple language lent his dicta the stamp of applied common sense. 'What McCardie says seems so obvious—after he has said it,' said one admirer (Pollock, 188). In Cohen <i>v.</i> Sellar (1926), ruling on a point not previously determined, he held that a man who breaks off his engagement is not entitled to the return of the ring. McCardie reached this conclusion after an exhaustive review of precedents, Roman and continental, as well as English.
Such lengthy excursuses seemed otiose to the senior judges. Lord Justice MacKinnon deplored what he called McCardie's 'prolix disquisitions'. To cite 'every case ever decided upon any topic', he complained, 'is not the method of the great judge' (MacKinnon, 238). But McCardie was convinced (as he said in Gayler and Pope <i>v.</i> Davies) of 'the importance of principle and of the need for a greater co-ordination of case law'; and student, scholar, and practitioner may still find profit and example in his learned, compendious, and methodical judgments. MacLenan <i>v.</i> Segar (1917) remains a classic authority on a hotelier's liability for the safety of his premises, Said <i>v.</i> Butt (1920) on a theatre's right to 'sell or refuse to sell tickets at its own option'. Pratt <i>v.</i> The British Medical Association (1918) is a pioneering judgment in the civil law of conspiracy. Heddon <i>v.</i> Evans (1919) confirms that decisions of military tribunals are justiciable by the civil courts. McCardie's ruling in Hartley <i>v.</i> Hymans (1920), relieving a party when appropriate from the letter of his contract, set the future Lord Denning on the fruitful path of 'promissory estoppel' (Denning, 201). In the leading case of Phillips <i>v.</i> Britannia Hygienic Laundry Co. (1923) McCardie held that breach of a statutory order does not of itself necessarily furnish a cause of action to a plaintiff injured thereby. In Gayler and Pope <i>v.</i> Davies (1924), reviewing the law on straying animals, he ruled that if a horse is left untended in a public street and bolts, its owner is prima facie liable in negligence. In Fisher <i>v.</i> Oldham Corporation (1930), where his researches extended to the English Historical Review, he ruled that police officers are officers of the crown, not agents of the corporation, and that an action for false imprisonment would not lie against the latter.
A controversial judge
McCardie's second characteristic as a judge caused surprise and even consternation. Having been known for 'his infallible tact as an advocate' (The Times, 12 Oct 1916), he showed himself on the bench to be a rebel and a crusader, a critic and opponent of much in the system he was appointed to administer. He denied that anyone was ever reformed by prison or borstal. He thought the current divorce laws a disgrace and said so in open court. The duties of the king's proctor were 'repulsive' (Pollock, 47), suits for restitution of conjugal rights—'a hollow mockery' (ibid., 68). The divorce laws themselves were shaped by 'the dead hand of the old canon law'; and they and such actions as suits for breach of promise of marriage would, he rightly predicted, be looked on with incredulity thirty years hence. Holding passionately that the law should move with the times and reflect the standards of educated opinion, McCardie did not hesitate to speak out. 'Iconoclasm', he wrote, 'is the basis of moral and social progress' (Carr, 290). So far as the law allowed, he strove to act on his belief, informed by wide reading and reflection, that while judicial decision making was necessarily grounded in case law, considerations of social problems should also influence it. No judge held the common law in greater veneration and few were more deeply versed in it: one lord chancellor described him as 'the greatest master of case-law of our time' (DNB); but for McCardie himself the elasticity, expansiveness, and vitality of the common law were as essential as its certainty. 'The law', he said, 'must be stable, yet it cannot stand still' (Pollock, 48). Impatient of judicial 'paralysis'—'my task', he insisted, 'is not merely that of an automaton'—he supported his judgments with observations on the realities of modern life, especially the position of women, and with arguments in favour of birth control, lowering the age of consent, and the legalization of abortion.
McCardie's bold expression of controversial views irritated and dismayed his fellow judges. They 'shuddered to read' in the popular press of 'Mr Justice McCardie's latest' or the opinions of 'the Bachelor Judge' (Solicitors' Journal, 291) on women's fashions, including their lingerie. His conviction of the dynamic role of law in society aroused equal disquiet. 'I have no respect', he declared with typical robustness, 'for a rule of law whose sole claim to esteem is based on its antiquity and its remoteness from everyday life' (Pollock, 51). While such forthright assertions cheered the hearts of a younger generation of lawyers—McCardie identified easily with the young, and bridged, it was said, the generation gap between pre-1914 and inter-war England—his repeated breaches of judicial convention sowed resentment. In Place <i>v.</i> Searle (1932) a husband sought damages from his wife's enticer. McCardie, finding against him, denounced actions for enticement, from the viewpoint of 'the lawyer who possesses sociological vision', as an absurd and degrading anachronism. 'The fact is', he concluded, 'that many of the old decisions require adjustment, if not abolition, in view of the conditions of modern life.' The Court of Appeal ordered a retrial on the evidence. In a mordant and personalized judgment, Lord Justice Scrutton, questioning McCardie's credentials as a bachelor to comment on marital relations and women's underwear, added tartly that the less 'sociological knowledge' entered into legal decisions, the better. Stung to the quick, McCardie delivered what he called a 'public rebuke to Lord Justice Scrutton' (Pollock, 214), stating that he would no longer pass on his case notes to any court of appeal of which Scrutton was a member. This was an extraordinary act of defiance. On the intervention of the master of the rolls, McCardie agreed to comply with the normal procedure.
McCardie also exposed himself to political controversy. O'Dwyer <i>v.</i> Nair (1924) was a libel suit, centring on the 1919 ‘massacre’ at Amritsar in India, where General Dyer ordered his troops to fire on a crowd of 20,000 unarmed rioters, killing 400. In his book the defendant accused Dyer's superior, the lieutenant-governor of Punjab and plaintiff in the action, of responsibility for an ‘atrocity’. Summing up, McCardie gave it as his considered opinion that Dyer's order was justified in the circumstances and that his subsequent dismissal from the army was wrong. McCardie had every right to express his views, coupled as they were with a warning that the jury was under no obligation to agree with them. The socialist intellectual Harold Laski, who was a juryman in the case, dissented from McCardie's view, but none the less commended his 'magnificent impartiality' (Holmes–Laski Letters, 613). But McCardie caused grave offence in Liberal and Labour circles generally as well as in India, where ‘Amritsar’ was a synonym for colonial oppression. In the House of Commons, the Labour MP George Lansbury urged McCardie's removal from the bench and McCardie's comments were censured by the prime minister, Ramsay MacDonald. Ironically, McCardie's name had been among those submitted to MacDonald as a possible lord chancellor in the first Labour government (Lewis, 18–19). During the financial crisis of 1931, when MacDonald's National Government reduced the judges' salaries by 20 per cent, McCardie protested to Lord Chancellor Sankey at this breach of contract. While his immediate concern was a drop in his net income to one-tenth of what it was during his heyday at the bar, it was subsumed in the collective remonstrance by the High Court judges that the measure was unconstitutional under the settlement of 1689.
Among criminal cases heard by McCardie, two involved crimes of passion: the trials of Lieutenant Malcolm (1917) for killing his wife's seducer, and of Roland Hurn (1929) for the murder of his wife. The cases of R. <i>v.</i> Jacoby and R. <i>v.</i> True (1922) caused a public outcry. Jacoby, an eighteen-year-old pantry-boy, was executed despite the jury's strong recommendation for mercy, fully endorsed by McCardie; while the well-connected Ronald True, convicted with McCardie's clear approval, was reprieved by the home secretary on the grounds of insanity. Public outrage at the reprieve was such that Lord Chancellor Birkenhead appointed a committee under Lord Atkin to reconsider the McNaghten rules on criminal insanity.
Unfulfilled law reformer
Popular as a barrister, McCardie had to steel himself against the criticism he received as a judge. He was so often its target, he said, that he had 'forgotten what it feels like not to be attacked' (Pollock, 34). Most of the laws whose obsolescence he exposed have long since been swept away. But the unreflecting and sometimes ill-natured acrimony provoked at the time by his outspoken pronouncements saddened and hurt him. Sensitive to what he prized as 'the brotherhood of the Bar' (ibid., 44), he was wounded by the hostility of Lord Justice Scrutton, Mr Justice Avory, and the lord chief justice, Lord Hewart. Even so temperate a lawyer as Lord Buckmaster came to regret that he had ever raised McCardie to the bench (MacKinnon, 238).
McCardie loved the law. Even as a judge he still thought of himself as a law student (Pollock, 239). In particular he loved the common law. He found it 'aflame with interest and adventure' (ibid., 240), 'one of the most stupendous products of the human mind' (ibid., 244), and the proper vehicle of progress. He was courteous and kindly on the bench, tending, as he said, to side 'with those who are weak and those who are poor' (ibid., 52). He preferred a bind-over or probation order to a custodial sentence, and in any event 'the helping hand afterwards' (ibid., 157). While he believed in both corporal and capital punishment, he loathed having to pass a death sentence; and his voice was instrumental in the repeal of the death penalty for infanticide under the Infanticide Act (1922). The public warmed to his patent goodwill, and he received an astonishing number of letters asking for advice. He often helped, anonymously but from his own pocket, families of those he had sentenced. In his large humanity and accessibility, his wide sympathies, and his obvious desire to do justice and to make the law serve the changing needs of society, McCardie saw himself in the creative tradition of Mansfield and Bowen. He was a Denning before his time, though denied promotion to an appellate court from where, like them, he might have reshaped the law.
Like Denning, Harry McCardie was an inspiration to the young: youthful in his enthusiasm and smiling good humour, his frank, open face, his spontaneity, optimism, and generosity of spirit. 'Bitterness', as he said, 'is a very small thing and it does not carry a man far in life' (Pollock, 166). Despite his comments on women's fashions, he was remarkably careless of his own. Despite a copious wardrobe, he wore the same set of clothes, worn and creased because he put them away in a drawer, never on hangers. He would gad about, down at heel, indifferent to torn hatband, frayed trousers, or leaking boots. Arrayed in his judge's robes, he had an odd habit of jerking up his ermine cuffs at moments of strain.
A bencher of the Middle Temple since 1916, McCardie, on becoming reader for 1927, revived the ancient custom, in abeyance since 1680, of delivering an address. He used the occasion to respond obliquely to his critics by insisting on a judge's right to speak out. 'The judges seek no popularity,' he declared. 'They will not yield to the passing winds of popular excitement' (Pollock, 138). Though he never attended university, he was highly cultivated and widely read in history and literature, as his judgments show. He was an active member of the Horatian Society, a connoisseur of old china, and an avid collector of watercolours, which crowded every room, including the bathroom, of his small flat in Queen Anne's Mansions, St James's Park, Westminster. McCardie had a powerful, stocky physique, was fond of boxing, shooting, and fishing, a keen golfer, and at the age of sixty still a formidable tennis player. He was a member of the Reform Club and the Athenaeum.
Early in 1933, while on circuit, McCardie suffered in succession three debilitating bouts of influenza which left him deeply depressed and unable to sleep. On 26 April 1933, alone in his flat, he shot himself. The coroner returned a verdict of suicide while the balance of his mind was disturbed. Suicide was certainly on his mind during the last year of his life (Rentoul, 130–31). One of the last cases tried before him was a libel action brought by Mrs Meurig Morris, a self-styled medium, whose attempts to turn the court into a séance sorely tried his patience. It was said that during the trial McCardie received an anonymous letter, purportedly from the spirit world, which foretold his own fate. Be that as it may, the circumstances of his death were sad enough. McCardie had incurred massive gambling debts. It also appears that he was being blackmailed. McCardie was a great lawyer, whose progress as a judge was barred by his fearless independence and outspokenness. His judicial reformism was not adequately appreciated by his contemporaries or allowed full scope.
- G. Pollock, Mr Justice McCardie: a biography (1934)
- The Times (27 April 1933)
- The Times (29 April 1933)
- The Times (17 June 1933)
- The Times (12 Oct 1916)
- Law reports
- F. MacKinnon, ‘An unfortunate preference’, Law Quarterly Review, 61 (1945), 237–8
- Solicitors' Journal, 77 (1933), 291
- H. Montgomery Hyde, Norman Birkett: the life of Lord Birkett of Ulverston (1964)
- H. A. McCardie, The law, the advocate and the judge (1927)
- Judicial wisdom of Mr Justice McCardie, ed. A. Crew (1932)
- R. C. Carr, ed., Red rays: essays of hate from Oxford (1933)
- J. B. Williamson, ed., The Middle Temple bench book, 2nd edn, 1 (1937)
- E. Bowen-Rowlands, In court and out of court: some personal recollections (1925)
- G. Lewis, Lord Atkin (1983)
- G. Lang, Mr Justice Avory (1935)
- J. D. Crawford, Reflections and recollections (1936)
- R. Jackson, The chief: the biography of Gordon Hewart, lord chief justice of England, 1922–40 (1959)
- A. T. Denning, The discipline of law (1979)
- Holmes–Laski letters: the correspondence of Mr Justice Holmes and Harold J. Laski, ed. M. De Wolfe Howe (1953)
- G. Rentoul, Sometimes I think: random reflections and recollections (1946)
- WWW, 1929–40
- D. G. Browne, Sir Travers Humphrey: a biography (1960)
- G. Goodwin, The Middle Temple: the society and fellowship (1954)
- b. cert.
- Bodl. Oxf., corresp. with Lord Hanworth
- Elliott & Fry, photograph, repro. in Pollock, Mr Justice McCardie
- L. N. A., photograph, repro. in Pollock, Mr Justice McCardie
- M. Milwood, bronze head, Middle Temple, London
- Press Portrait Bureau, photograph, repro. in Pollock, Mr Justice McCardie
- W. Thomas, photograph, repro. in Pollock, Mr Justice McCardie
- photographs, repro. in Pollock, Mr Justice McCardie
Wealth at Death
£7323 2s. 3d.: resworn administration, 17 June 1933, CGPLA Eng. & Wales