LORD DENNING

This morning I finished reading Lord Denning: A Life (1993) by Iris Freeman.  This biography of English Judge Alfred Thompson "Tom" Denning (1899-1999) is a survey of the life and career of the most famous British Judge of the 20th Century.

When I began reading this book, about all I knew about Lord Denning was that he had served as "Master of the Rolls," which is a senior appellate judge position in England, and that he was noted as the most influential English judge of the twentieth century.

Denning is best described as the Earl Warren of the English Common Law on civil cases.  Denning always sought to do what he thought was substantial justice, and he never let a statute or a precedent to the contrary get in his way.

From a humble lower middle class family, Denning and his brothers and sister strove to achieve.  One of Denning's brothers finished his army career as a General and another as an Admiral in the Royal Navy.  One brother was killed in the First World War and another died from TB contracted while serving in the Navy.  While still a teenager, Denning served as a combat engineer in the Royal Army on the Western Front in 1918.  After the war he earned a degree in mathematics from Magdalen College, Oxford.  After teaching mathematics for a while and finding it boring, Denning turned to the law.  Denning was admitted to Lincoln's Inn in 1921.  After a pupillage in a barristers chambers, and passage of final bar examinations, Denning was called to the Bar in June, 1923.

Denning became a successful and much sought after barrister.  Denning's personal life was marked by tragedy.  For years Denning had pursued Mary Harvey, the daughter of an Anglican clergyman.  Mary had consistently rebuffed Denning's advances until 1930 when she finally agreed to marry him.  Six months before their wedding, Mary was diagnosed with the tuberculosis which would eventually kill her.  Mary and Tom had one son, Robert, born in 1938.  Mary died in 1941.  Denning later married a widow, Joan Stewart.  Joan and Tom remained married until Joan's death in 1992.

In March 1944 Denning was appointed a High Court Judge of the Probate, Admiralty and Divorce Division.  In 1945 Denning was transferred to the King's Bench Division.  While a judge of the King's Bench Division, Denning first came to public prominence when he was appointed to hear appeals of service men and women who claimed to have become disabled due to their war time service and who had been denied disability benefits.   Up to that time, the burden of proof was upon the claimant to prove that his disability was service related.  Denning ruled that the burden of proof fell upon the government to prove that the claimants injuries were not related to war service.  This ruling made Denning a hero to the British press and public.

One of Denning's most famous cases is Central London Property Trust Ltd. v. High Trees House Ltd.
The facts are as follows:  (from Wikipedia):  "In 1937, High Trees House Ltd leased a block of flats in Clapham, London for a rate of 2500 pounds a year from Central London Property Trust Ltd.  Due to the conditions during the beginning of World War II occupancy rates were drastically lower than normal.  In January 1940, to ameliorate the situation, the parties made an agreement in writing to reduce the rent by half.  However, neither party stipulated the period for which this reduced rental was to apply.  Over the next five years, High Trees paid the reduced rate while the flats began to fill, and by 1945, the flats were back at full occupancy.  Central London sued for payment of the full rental costs from June 1945 onwards."  Based on the doctrine of promissory estoppel, Denning ruled that if a party reasonably leads another to believe that he will not enforce his full legal rights that he may be estopped from doing so later.

The Temple of Promissory Estoppel, the High Trees Apartment Building

In October, 1948 Denning became a Lord Justice of Appeal or a "law lord" in the House of Lords.  Despite being the highest court of the United Kingdom, at that time the House of Lords were bound by their own precedents and could not overrule a previous case.  Denning struggled all his career against this rule.  Although Parliament finally granted the House of Lords the right to overrule their own precedents, to Denning's great chagrin the Court of Appeal was never given this right.

In 1962, Denning realized a life long career goal and returned to the Court of Appeal as Master of the Rolls.  The Court of Appeal sits in panels of three.  Denning was famous for being the dissenter.  Freeman recounts how Denning would turn to one of his colleagues and say
     DENNING:  "We are going to allow the appeal, aren't we?"
     1ST Lord Justice:   "No, Tom. We're not."
     DENNING:  "Very, well."
Then Denning would turn to the third judge and say:  "We're going to allow the appeal, aren't we?"
     2nd Lord Justice:  "No, Tom.  We're not."
     DENNING:  "Very well, then.  Both of you will have to dissent."

Although Denning is just about universally revered for standing up for the little man against the government and corporations, Denning is responsible for limiting the right of jury trial in personal injury cases in Britain.  Denning held that "the judge ought not, in a personal injury case, to order trial by jury save in exceptional circumstances.  Even when the issue of liability is one fit to be tried by a jury, nevertheless he might think it fit to order the damages to be assessed by a judge alone."

There is much in the legal landscape surrounding Lord Denning's career that is familiar to the American lawyer.  However, there is also a lot that is, quite frankly, alien.  The Supremacy of Parliament means that no act of parliament can be overturned or questioned in the courts.  The highest courts in the land are bound by their previous decisions even if they are now convinced that those decisions are wrong.  The idea that an appeals court can, on its own initiative, restrict the right of a Plaintiff to have their case decided by a jury strikes the American as almost tyrannical.

Denning became best known by the public for his investigation and report on the Profumo Scandal.  John Profumo was the Secretary of State for War in the British cabinet.  Stephen Ward was a doctor who specialized in acting as a pimp for the rich and famous.  Ward procured a call girl, Christine Keeler, for Profumo.  At the same time, Keeler was sleeping with the naval attache for the Soviet Embassy, Yevgeni Ivanov.  In 1963, the lid blew off the scandal and Profumo's affair with Keeler was publicly exposed.  The Prime Minister, Harold Macmillon, asked Lord Denning to inquire into whether there was any breach of national security.  Denning's 70,000 word report caused a sensation.  Although Denning concluded that was no breach of national security, the report gave all the juicy details and became a best seller.  The Daily Telegraph said that it was "the raciest and most readable Blue Book ever published."

Lord Denning on the day the Profumo report was released.

During his long career, Denning and his second wife, Joan, traveled all over the world giving speeches and lectures on the law.  Denning was much in demand as a speaker and lecturer.  Denning was also considered a hero to many law students in Britain and the Commonwealth Countries.  Even now, you can buy T-shirts which say "Lord Denning is My Homeboy."

Even though advancing in years, Denning refused to retire.  After turning eighty, like many old men, Denning began to have what can only be described as "diaherrhea of the mouth."  In a book titled What Next in the Law published in 1982, Denning suggested that blacks were unfit to serve on juries because they and other immigrant groups had different moral standards than white Englishmen.  The controversy caused by these remarks caused Denning to finally resign at age 83.

Even in retirement, Denning remained controversial.  In 1990 in an interview with author A.N. Wilson which was published in The Spectator, Denning said that the Guildford Four, suspected IRA terrorists whose convictions were overturned, should have been hanged.  "They'd probably have hanged the right men.  Just not proved against them, that's all."

Throughout his life, Denning was a devout Christian and a devoted member of the Church of England.  Occasionally, he let his conservative Christian beliefs dictate his judgment on cases.  Being morally opposed to divorce, Denning sometimes let his prejudices show.  In an infamous example, Denning once ruled that custody of a child should be given to the father because if custody were given to the mother there would be no hope of reconciliation.  In 1977 Denning told the Christian Lawyer's Fellowship "Without religion there can be no morality, and without morality there can be no law."

After a long and full life and career which spanned almost the whole of the twentieth century, Lord Denning finally died at age 100 on March 5, 1999.

I enjoyed reading this book, which was published seven years before Lord Denning's death.  Lord Denning's life and career has drama, romance, and intellectual stimulation.  Five out five gavels.



 

LEADING CASES IN THE COMMON LAW

Professor Brian Simpson (1931 - 2011) taught at the University of Michigan Law School from 1987 until his retirement in 2009.    A British citizen and a graduate of Oxford University, the Guardian said this about Simpson in 2011 its obituary following Simpson's death on January 10, 2011:

"Although his academic career was latterly spent mostly in the U.S., he remained a British liberal to his core and never became an American citizen.  He tended to spend the winter and spring in Ann Arbor, Michigan, but for the summer and autumn he was often at the then Public Record Office, now the National Archives, in Kew, west London.  He was elected a fellow of the British Academy in 1983, a fellow of the American Academy of Arts and Science in 1993, was visiting professor of legal science at Cambridge Universtiy 1993-94, and in 2001 was appointed an honorary Q.C."

The book under consideration, Leading Cases in the Common Law (1995) posits the thesis that there is no "science of law" and that leading cases must be studied in their historical and cultural context to really understand the rationale for the decisions. 

This is fascinating reading.  Starting with Wolfe v. Shelley (1581), which produced "The Rule in Shelley's Case" that generations of law students have been tortured with, Professor Simpson seeks to find the story behind the story.  Shelley's case did not really have anything to do with some philosophical rule regarding wills and deeds and had everything to do with Queen Elizabeth I and her government wanting to disinherit a wealthy Catholic recusant son in favor of the deceased's Protestant grandson who had the Queen's favor.  Of no real significance at the time, it only became "a leading case" because one of the winning lawyers, Edward Coke, reported the case in the series of case reports which he published.

Professor Simpson goes through and tells "the story behind the story" on a number of famous common law cases, beginning with Wolfe v. Shelley (1581) and ending with Carlill v. Carbolic Smoke Ball Company (1893) which generations of law students have been tortured with to understand the acceptance of unilateral contracts.

This is fascinating reading.  Every Anglo-American lawyer interested in the history of the Common Law should read this book.  Five out of Five gavels.

Alfred William Brian Simpson, Q.C. (1931 - 2011)

HISTORY OF AMERICAN LAW

Magnificent.  That's the best description I can give of Professor Lawrence Friedman's masterpiece.   If there is anything that Lawrence Friedman hasn't read about American legal history, I'd be surprised. From the first colonial settlements until the early years of the twenty first century, this book covers it all.

It would seem like this topic should be boring, but this is an engaging and engrossing book.  To a large extent the history of the American people is a history of their laws and legal systems.  Even the chapters about legal education and lawyers are not boring.

Why is all this important? "The law, said Justice Holmes, is a magic mirror, wherein we see reflected not only our own lives but also the lives of those who went before us.  Thus, a history of American law reflects the nation's history in all its manifold aspects.  Every important development in American life has had its impact on the law, from the founding of the Republic to the internal stresses of the society two centuries later."  Bernard Schwartz, The Law in America: A History (1974).

Five out of five gavels.

THE SALEM WITCHCRAFT TRIALS: A LEGAL HISTORY

This excellent little book by University of Georgia History Professor Peter Charles Hoffer was first published in 1997.  Professor Hoffer was the author of an earlier book on the Salem Witch Hysteria which was much broader in scope.  As the title indicates, this book is a legal history which concentrates on the trials themselves.

Due to a number of factors, hysteria not only gripped Salem Village in 1692 but also the entire Massachusetts Bay Colony.  Ministers and Judges in Massachusetts had headed off earlier witchcraft accusations which, as in Salem Village, were made by teenage girls who claimed to be oppressed by the spirits of various members of the community.

The witchcraft accusations were, in part, fueled by animosity between the Putnams and the Porters, leading families in Salem Village, who were competing for land, wealth and control of village politics.  Judges in the early Salem Witch Trials ignored the rudimentary rules of evidence which were current in English law which prohibited the introduction of "spectral evidence," that is testimony regarding visions, dreams and ghosts.  When allegations were believed that the oppressed victim was being tormented by the spirit of a Defendant, the Defendants were powerless to refute it.

In the earliest trials, the Defendants were unpopular and outcast members of the community.  The accusations soon spread to respected older women, like Rebecca Nurse, a stalwart church member who was well respected in the village.  In fact, despite the introduction of spectral evidence and the rabid denunciations of the alleged victims, the jury initially returned a verdict of not guilty.  The judges, led by Massachusetts Bay Lt. Governor and Chief Judge William Stoughton, were enraged and sent the jurymen back to reconsider their verdict.  The jury then complied and brought in a guilty verdict and sent the respected Goodwife Nurse to the gallows.

At this time in English law, a criminal defendant was not allowed to be represented by counsel but was required to conduct their own defense.  A criminal defendant was not considered to be a competent witness and could not testify under oath, although they were allowed to make an unsworn statement to the jury.

The prominent Boston minister Cotton Mather was an enthusiastic proponent of the trials.  Mather somewhat backed off of this position after his distinguished father, Increase Mather, and a group of Massachusetts ministers urged the governor to end the trials and denounced the admission of spectral evidence.  Governor William Phips eventually ended the trials and pardoned those remaining in jail.  Chief Judge Stoughton, who eventually replaced Phips as Governor, was outraged and reportedly stormed off the bench saying "that he was just about to 'clear the land' of witches when Phips interfered."

This book is part of the series called "Landmark Law Cases and American Society" published by the University of Kansas Press.  This is excellent reading and is highly recommended.  Five out of five gavels.

DANIEL WEBSTER: THE MAN AND HIS TIME

I am totally sick of Daniel Webster.  He was the greatest lawyer of his age, the greatest orator of his age, and one of the most influential and powerful Senators and Statesmen in all of American history.  And I’m sick of him.

The late Professor Robert Remini’s massive biography of Webster comes in at a whopping 796 pages.  I can’t do any better in summarizing this massive tome than Kirkus Review did in its’ review of Remini’s  Daniel Webster: The Man and His Age (1997):

“This massive biography leaves no stone unturned in portraying a familiar but little studied antebellum figure, considered the young country’s best orator.  Veteran historian Remini maintains a delicate balance between Webster’s two personas: “the Godlike Daniel,” so called for his brilliant public addresses and eulogies of heroes of the American Revolution, and “Black Dan,” a tag referring not only to his dark appearance but to his ruthless politicking and ferocious temper.  Much of the study of Webster’s public life is organized around the famous speeches that defined and shaped his career, including his dual eulogy of presidents John Adams and Thomas Jefferson, and his congressional address appealing for early recognition of Greek independence from the Ottoman Empire, which positioned the congressman and senator for later appointments as secretary of state.  Black Dan is more evident in Remini’s description of the statesman’s private life.  Besides being alcoholic, Webster had the terrible misfortune of outliving four of his five children, launching three abortive and embarrassing attempts to gain the presidency, and suffering endless financial problems.  Remini quite deftly shows why he was known as “the Great Expounder and Defender of the Constitution,” depicting Webster as one of the earliest strict constuctionists, a man who felt that the Constitution was the defining American document and that the preservation of the Union took precedence over all other policy considerations.  Unfortunately, it is here that Webster’s political clout was eventually devalued, as he refused to combat the Fugitive Slave Act and chose to accept House Speaker Henry Clay’s Missouri Compromise, which perpetuated slavery and did nothing but guarantee the outbreak of war. . . . Though Remini’s obvious admiration for Webster may sometimes cloud his view, a more complete and engrossing biography could not be produced.”

Professor Robert V. Remini (1921-2013)

Professor Remini (1921-2013) is best known for his endless series of books about Andrew Jackson.  Remini tries to spice this up with all of “Black Dan’s” dalliances with women and reckless spending.  Webster liked women, and not just the two he was married to.   A female portrait painter, Sarah Goodridge, who was probably Webster’s mistress, painted a miniature of her bare breasts and gave it to Webster.  If Miss Goodridge was expecting a marriage proposal, she was disappointed, Webster instead married the daughter of a prominent New York family for her money.

 

Sarah Goodridge

"Beauty Revealed" self-portrait given to Daniel Webster by Sarah Goodridge

Although Webster made a literal fortune in legal fees during his career as a lawyer, he blew practically all of it.  Just about every major constitutional law case you can think of in the early nineteenth century, Webster was involved in it as a lawyer.  It was not unusual for Webster to make a speech on the floor of the Senate then descend to the basement of the capital building to address the Supreme Court.

Daniel Webster (1782-1852)

However much Professor Remini tried, however, a book consisting of one debate and speech after another can only be so interesting.  Now that I’ve finished, Daniel Webster: The Man and His Time, I’m thinking of using it a doorstop.  I recommend the book to anyone interesting in early American history and politics or the antebellum legal profession, however, unless you’re really interested in Webster I’d take it in small doses.

Rebellion In The Temple of Justice

Rebellion In the Temple of Justice: The Federal and State Courts in South Carolina During the War Between the States by Warren Moise is an interesting little book about the Bench and Bar of the State of South Carolina during "The Late Unpleasantness With the North" a.k.a. "The War Between the States," a.k.a. "The Civil War," or, as I like to call it, "The War Against Yankee Aggression."

It's really a short little book, because, the truth is, nothing much happened in the Confederate Courts. The Confederate States of America only existed for four short years.  As detailed in this book, many judicial districts simply shut down because all of the lawyers had gone to the army.  The book recounts that in some places in South Carolina not enough adult male white landowners ( the only people who could vote or sit on juries) could be found to empanel a jury.

Nevertheless, I found this little book to be fascinating.  The portrait of the antebellum legal profession in South Carolina was very interesting.  For the most part, the existing Federal Courts just became the Confederate Courts and all the Court same Court personnel kept right on working with no interruption.

The gentleman whose portrait is on the front of the book is United States District Court Judge A.G. McGrath who resigned from his post immediately upon receiving news that Abraham Lincoln had been elected President.  McGrath told the Grand Jurors that he would rather close "the temple of justice" forever than continue it under Northern Tyranny.  Not surprisingly, Confederate President Jefferson Davis appointed McGrath as the new Confederate Judge and McGrath continued doing his job until being elected Governor of South Carolina in 1864.

This kind of thing is not everybody's cup of tea.  There are some tedious descriptions of long dead lawyers and judges, but over all I enjoyed this little book a lot.

JOSEPH HENRY LUMPKIN: GEORGIA'S FIRST CHIEF JUSTICE

As I read Paul DeForest Hicks' biography of Chief Justice Joseph Henry Lumpkin (University of Georgia Press, 2002), I couldn't help but think about the opening scroll of the movie Gone With the Wind:

"There was a land of Cavaliers and Cotton Fields called the Old South.  Here in this pretty world, Gallantry took its last bow.  Here was the last ever to be seen of Knights and their Ladies Fair, of Master and of Slave.  Look for it only in books, for it is no more than a dream remembered, a Civilization gone with the wind . . ."

The Georgia which Joseph Henry Lumpkin knew seems both familiar and remote.  Familiar in the sense that reference is made to familiar places, and I have practiced law before the institution which Lumpkin headed, the Supreme Court of Georgia.  As a student of history, I am familiar with the historical background to Lumpkin's legal career.  But the world of Lumpkin seems impossibly remote and strange to a twenty first century lawyer.

Chief Justice Joseph Henry Lumpkin (1799-1867)

Lumpkin (1799-1867) was already a prominent Georgia lawyer and politician when he was appointed to serve as one of the first three judges of the new Georgia Supreme Court in 1845.  There was much resistance in Georgia to the creation of an appellate court of any kind, and throughout the early years of the Court's existence it was always under the threat of being abolished by the General Assembly.

The resistance to any type of appellate court came out of Georgia's hostility to the early decisions of the Supreme Court of the United States.  From the time of the American Revolution until the creation of the Supreme Court in 1845, Georgia had no appellate court and each Superior Court Judge reigned sovereign within his own circuit.  This, of course, created a mess in which the law was one thing in one Judicial Circuit and different in another according to the whim of each trial judge.

For years, lawyers in Georgia advocated the creation of a Supreme Court to correct legal errors from the local courts.  The hostility to the Federal Supreme Court, however, was such that it took until 1845 for a Supreme Court to finally be created.

Appointment to the new Supreme Court was more of a burden than an honor.  The Court had no permanent home but was required by statute to conduct hearings all over the State.  In the conditions of the mid nineteenth century, with travel by horseback over primitive roads, the Supreme Court judges' most difficult task was the constant travel to ride circuit over a huge state.

Lumpkin, as the oldest and most respected of the three judges, was chosen to serve as Presiding Judge from the creation of the Court.  The position of Chief Justice was not formally created until 1863 during the height of the Civil War.

Lumpkin was a devout Presbyterian.  Lumpkin was a "tea-totaller" and a promoter of the Temperance Movement.  As a young man, Lumpkin had been a liberal on the slavery issue who advocated gradual emancipation and re-colonization of blacks to Africa.  As he became older, Lumpkin hardened his opinions and became a staunch advocate of slavery and secession from the Union.

Lumpkin began his political career as a supporter of the Jacksonian populist Governor George M. Troup.  As a Troup supporter and advocate of States Rights, Lumpkin first came to prominence as a member of the Georgia Legislature and then as a  prominent lawyer.  His older brother, Wilson Lumpkin, served as Governor of Georgia.  Lumpkin and his wife, Callendar Grieves Lumpkin, had thirteen children.

In all, Lumpkin served on the Georgia Supreme Court for twenty two years.  He was the founder of the Law School at the University of Georgia, which was originally known as the Lumpkin Law School.  As a Judge, Lumpkin was progressive on economic and business issues, and conservative on social questions.  Reconciled to defeat, at the end of his life, Lumpkin urged his fellow Georgians to reconcile themselves to the Union as quickly as possible.

Lumpkin's life was one of long and distinguished service to his God, his family, and his native State.

From the Anglo-Saxons to the ABA

I did it.  And it was quite an accomplishment, if I do say so myself.  I read all 1144 pages of Professors Langbein, Lerner and Smith’s massive textbook on legal history: History of the Common Law: The Development of Anglo-American Legal Institutions (Aspen, 2009).

This book could be described as everything you ever wanted to know about the Common Law but was afraid to ask.  The book begins by describing law and order in Anglo-Saxon England before the Norman Conquest of 1066 and ends with a description of the legal profession in the United States in the twenty first century.

Greatest Stars of the Common Law:  Lord Chief Justice Edward Coke

If you ever wanted to know what procedure was utilized in the Court of the Exchequer in the 18th century, this is the book for you.  It took me, off and on, probably about six months of mornings to read this all the way through.  It was a really worthwhile experience.  I learned a great deal of interesting facts which explain why we do things the way we do them.  For instance, the authors opine that the procedure of the Chancery Courts in England have swallowed up the Common Law in Civil Cases in the modern United States.  All of our pre-trial discovery procedures, interrogatories, depositions and pre-trial motions have their root in the practice of the Courts of Equity.  A common law trial on the other hand, was a pleading contest to narrow an issue to submit to a jury.  Depositions and written interrogatories were unknown to the Common Law.

There are liberal quotes throughout the book from all of the “greats” of the law.  Lord Hale, Lord Cook, and Blackstone are all here as well as American greats like John Marshall, Oliver Wendall Holmes, and Benjamin Cardozo.

If you have any interest in legal history, and you have the time.  History of the Common Law by Langbein, Lerner and Smith is well worth your time.

Professor John H. Langbein, Sterling Professor of Legal History, Yale University