Legal biographies provide interesting and illuminating accounts on important jurists and legal thinkers and their influence on the development of the law. Mr Justice McCardie (Sir Henry Alfred McCardie, 1869–1933) should certainly be counted as among one of the great English judges of the early twentieth century. His judgments on moral issues were notorious and infamous during his time for challenging the dominant conservative religious and cultural values that existed in interwar Britain. Many of his judgments and outlooks have been vindicated by later changes in statute that are helpfully highlighted in asterisks throughout the book. Antony Lentin provides a vivid narrative on a rather eccentric and avant-garde judge, whose name and reputation has largely faded away from memory (p xiv).
The book is divided into seven substantive chapters that chronicle the life and times of McCardie. Lentin has researched widely and draws upon newspaper articles, case law, statute, private letters, journal articles and books. The biography is full of black and white photos and fascinating anecdotes that flow naturally in chronological order. It is written descriptively with constant sonorous diction, rather than being filled with trenchant legal analysis. Each chapter begins with a quote or two and a set of catchwords that give it a judgment-like quality. The chapters would have benefited from the inclusion of sub-headings, which would have made it easier to identify each topic.
Chapter 1 begins with a background of McCardie's early life and career; he was a precocious and indefatigable young man who left school at 15, excelled at the Bar and shunned the prospect of a political career and the offer of silk. His background was unusual compared with a typical judge during his day, who often came from an upper-class family and had an Oxbridge education. This chapter therefore provides context to a man who would later be renowned as a maverick judge. Chapter 2 explores the judicial style and decisions of McCardie, who was appointed to the King's Bench Division in the High Court of Justice in 1916 and remained in this role until his death. Unlike many other judges who conducted cases impassively, he was actively engaged in trials by eliciting the facts and making frank and incisive remarks that not infrequently stirred up controversy (p 30).
Although McCardie practised mainly in commercial law as a barrister, he quickly came up to speed on morally contentious areas of the law, which are explored in Chapters 3–5. Chapter 3 focuses on the libel case of O'Dwyer v Nair. Sir Michael O'Dwyer, the former Lieutenant-Governor of Punjab, sued Sir Chettur Sankaran Nair, a former judge of the High Court of Madras, for claiming that he was responsible for the 1919 Amritsar massacre by ordering British Indian Army troops to shoot at a crowd of Indian unarmed protesters, leading to a death toll in the hundreds. McCardie created a sensation by telling the jury that General Reginald Dyer, who was ordered by O'Dwyer to quell the protest, had acted rightly in the exceptional circumstances.
Chapter 4 details the controversial judgments of McCardie's career that often placed him in direct conflict with the Church. The recurring theme of these judgments was the call for the reform of Victorian laws. While sitting on a bigamous marriage case in the Leeds Assizes during December 1931, McCardie called for the reform of divorce law that was governed under the Matrimonial Causes Act 1857 (p 91). In another case, involving a mother of seven children who procured her own miscarriage, that fell foul of the Offences Against the Person Act 1861, McCardie called for legal reform of abortion and the promotion of birth control, especially among the poor (p 92). Lentin provides excellent detail on the critical response of the various Christian denominations against McCardie's pronouncements. Anglican clergy wrote newspaper articles condemning his opinions on divorce and abortion, but were more ambivalent on his views on contraception. Whereas the Anglican Communion gave qualified support for the use of birth control and contraception at the Lambeth Conference of 1930, the Roman Catholic Church was unequivocal in its hostility towards contraception, as exemplified in the papal encyclical of Pope Pius XI Casti Connubii in 1930. The Catholic Herald therefore issued one of the strongest denouncements of McCardie, for bringing the court into disrepute (p 95).
Chapter 5 turns to the judicial brawl between McCardie and Lord Justice Scrutton. In Place v Searle [1932] 2 KB 497, a grocer's assistant claimed damages against a general practitioner for loss of consortium of his wife. McCardie heard the case in the Cambridge Assizes. In his judgment, he scorned the law of consortium and ruled that there was insufficient evidence on which the jury could make a finding of enticement. The plaintiff successfully appealed to the Court of Appeal and a re-trial was ordered. Scrutton heard the appeal and caused a sensation in his judgment by personally attacking the unmarried McCardie for only possessing theoretical knowledge of marital relations. In a series of extraordinary letters to the Master of the Rolls, McCardie unsuccessfully requested that Scrutton publicly apologise or cease hearing any appeals from him; otherwise he would withhold sending his notes to the Court of Appeal. Lentin well illustrates the frustration felt by Scrutton and others towards McCardie's judicial activism and failure to apply the common law precedents.
Chapter 6 deals with the final years of McCardie's life and finishes with his suicide and an abrupt exposition of his secret life. McCardie was popularly known in the press as the ‘bachelor judge’. What was unknown to the public was the fact that he had two mistresses, fathered a child out of wedlock and was heavily in debt as a result of his gambling addiction. The description of these intimate personal details breaks the chronological structure, but the abruptness reflects the surprise and shock that many felt with McCardie's untimely death and the revelation of his double life. Chapter 7 reflects on McCardie's legal legacy. After summarising his achievements on the bench, Lentin concludes rightly that McCardie was ahead of his contemporaries, with his legal realism and unorthodoxy being vindicated with time.
Lentin's biography is a welcome addition to the paucity of scholarship on McCardie. The book provides a good overview of his judicial career and it is suitable for those with a general interest in legal history.
