Another voice
One just man
Auberon Waugh
In the village of Chilton Foliat, Wiltshire, where I used to live, stands the Tudor mansion famous for its legend of the Littlecote Ghost. The story has often been told: how its original owner, Wild Will Dayrell or Dare11, summoned a local midwife who delivered a baby and was horrified to see Dare11 throw it on the fire. When accused of murder, this DareII struck a corrupt bargain with one Sir John Popham (Chief Justice of England 1592-1607) whereby in exchange for the reversion of the Littlecote estate Dare11 or Dayrell went scot-free on some legal quibble or other—probably arising out of confusion over the spelling of his name.
Thus it was that the Pophams came to live at Littlecote until well into the present century, when they sold it to the Wild Wills Woodbines—the late Sir Ernest Wills.
Two ghosts are said to haunt Littlecote. One is that of the baby, which can be heard wailing at night; the other is Darell, who was later killed in a riding accident. The interesting thing is that nobody has ever suggested Lord Justice Popham might be troubled in his repose. Not so much as a snore has been reported from the Somerset church where he lies in hog-like splendour. Plainly his conscience, like that of all good lawyers, is as clean as the proverbial whistle.
Nobody to whom I have told this story has been surprised by it. Popham's biographer in the DNB—no doubt himself a lawyer—describes it as 'improbable,' but Aubrey certainly believed it and so did Sir Walter Scott, who gives a version in his notes to Rokeby.
By and large, it seems to coincide with most Britons' opinion of judges. In the whole of English literature—from Justice Shallow to the immortal Judge Cocklecarrot—I cannot think of a single judge who is not portrayed at best as a buffoon, at worst as a corrupt, venal and unscrupulous villain. As the great Lord Goodman observed in 1972, no sane man in Britain will go to law if he could avoid it. The main horror of litigation does not lie in any fear that the judges might be corrupt, or cravenly deferential to wealth in any form, however recent its acquisition or shaky its foundations. It lies in the fear of their impenetrable stupidity, which is as unpredictable in its application as if the laws of this country were administered by an electronic random number indicator, or by the whim of an insane African president.
It is not surprising, perhaps, that they do not see themselves in this light. However many sycophantic biographies are written, however many letters to The Titnes from his former cronies in the Garrick Club, I am convinced that the late Lord Goddard will go down in folk memory (which is the only worthwhile form of contemporary history) as a cruel and beastly man. This will not be because of Goddard's abominable conduct and atrocious summing up in Bevan and Others versus Spectator Ltd (Times Law Report 23 November, 1957) or the vile miscarriage of justice which resulted from it. Nor will it be because Mr Bernard Levin once wrote a powerful, if intemperate, article in The Times drawing attention to a few of the old brute's imperfections. A folk memory is at the same time untraceable, undebatable and unbudgeable. But it exists, just as there exists this untraceable, undebatable and unbudgeable attitude of scepticism and mistrust towards the law, and in particular towards judges.
There is a brighter aspect to this gloomy situation, however. If we regard most judges as impenetrably stupid, capricious and most probably malevolent, what rejoicing there is among the angels when— once or twice in a generation, perhaps—a judge emerges who is remotely intelligent or benign. My own great-great-great-grandfather, Henry Cockburn, died in 1854 and was never more than a Lord of the Judiciary in Edinburgh, but because he was intelligent, honest and benign his memory seems inextinguishable. In the past two years alone there has been a new play about him which drew capacity audiences (so I have been told) in both Edinburgh and London, as well as a preposterous new biography by the fashionable London academic and pseud Karl Miller.
(think such a paragon exists today in the admirable Lord Denning, Master of the Rolls. Long after the last Englishman has spat over his shoulder at the evil memories of Goddard, Eldon and the infamous Jeffreys, generations of teenagers with soft brown eyes will be singing to their guitars about this beautiful man. Throughout a long dissenting judgment of his last week, I found myself rejoicing not only in the clarity of his mind, the felicity of his prose and his easy mastery of the law but above all in his simple, down-to-earth common sense. This is surely the rarest quality and the one which distinguishes the truly great from the merely good.
The case concerned an attempt by the international businessman and financier, Sir James Goldsmith, to 'stifle' (in Lord Denning's word) the magazine Private Eye by the unprecedented device of issuing seventy-four writs alleging libel against its distributors. A number-of distributors have agreed to stop distributing the magazine and have been spared further proceedings, costing Private Eye a drop of 12,000 in circulation before the alleged libel can come to court—the hearing still has no date fixed— and a High Court Master ordered the remaining writs to be struck off as an abuse of the legal process. They were restored by a High Court judge and the Court of Appeal was asked to strike them off again. Lord Denning's decision, which, although overruled by his two colleagues, will surely echo down the corridors of history as a reminder that not all Englishmen at the present time are imbecile, illiterate or senile, dealt not only with the particular absurdity with which the law was confronted—'no private individual should be allowed to stifle a publication on his own estimate of its worthlessness'—but also demolished the legal myth that distributors are liable in law for any libel in the material they handle. Such a superstition, revealed his Lordship, has no backing in case or statute law.
'If that were correct and applied in the present case it would mean that everyone who handled it, even a person who handed it to his neighbour to read, would be liable in damages to any person who claimed to be libelled in it.'
Unfortunately, such blinding commorl sense did not appeal to his Lordship's two colleagues. The less said about their judgments the better, but perhaps two cRot" ations will serve to illuminate the depths of their incompreheusion : Lord Justice Bridge: 'If Private Eye was,. engaged in the courageous exposure 01 public evils, no action taken by Sir James would impede that righteous crusade.' Lord Justice Scarman: 'Finally, the. decision on the present appeal was no` helped by reference to Sir James's wealth. Wealth might well have afforded him dr chance of invoking the law to protecthis reputation ldutcaotuion not.' at.way in which, alas, a poo m rer Oh, alas, alas, toi-nrenre, ducky. If th,e, poor, as well as the grotesquely rich, cool" stifle distribution in this way, not a singlde newspaper, magazine or comic cut woill ever be published. I was not a party to these melancholY proceedings, but on the occasion when Goldsmith tried to stifle me—I can see hiin now, like a great perspiring white slug .02 the plaintiff's benches, applying for a 141.P Court injunction to prevent my mentioning him in print—I was lucky to have a Juclg! of the highest possible intelligence ar" moral fibre. (fit were not for Mr Justice. Donaldson, whom God preserve, I Wuld not be writing this article now. So perhaPs there is hope. Perhaps Lord Denning, a_ veteran of the BEF in the Great War, is no' representative of a type of Englishman which has now disappeared. Our probenl as journalists is to let the Dennings known about and heard in the land. I hop: that anyone with a penny to spare in thes. difficult times will rush it to the Golden. balls Appeal, 34 Greek Street, London WI'
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