Obituary---LORD MERSEY

COMMERCIAL LAW
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Lord Mersey, whose death, at the age of 89, is announced on another page, had played over two generations a prominent part in the administration of justice. If he cannot justly be placed among the greatest Judges of his time, he will long be remembered as an advocate of exceptional capacity and as an accurate and lucid exponent from the Bench of the principles of commercial law. To the general public his name became familiar as the Commissioner appointed to inquire into the loss of the Titanic, and later into that of the Lusitania.

John Charles Bigham was the son of Mr. John Bigham, a merchant of Liverpool, where he was born on August 3, 1840. He was educated at the Institute in that city, and he subsequently matriculated at the University of London; he also studied in Paris and Berlin. He was called to the Bar by the Middle Temple in 1870 and joined the Northern Circuit, then at its most brilliant period, including among its members Herschell, Holker, Charles Russell, Henn Collins, and Gully. Russell seems to have been kind to the young counsel, who used to tell the story of their first meeting, when the future Chief Justice snapped out at him the discouraging question, "What on earth induced you to go to the Bar?"

CAREER AT THE BAR

Bigham soon, however, justified the step he had taken, and in a few years obtained a substantial junior practice on the circuit. He was quick and clever at apprehending the salient points of a case and at mastering the facts, and he possessed assurance and a complete and well-founded belief in his own capacity. He was created a Queen's Counsel in 1883, and very soon acquired a commanding position on circuit and in London, especially in shipping and mercantile cases. In these classes of litigation he was almost unrivalled and as one turns the pages of the Law Reports there are few names between 1887 and 1897 which occur more frequently. He was far from being an eloquent or even elegant speaker; his slow and deliberate method was impressive and with a jury of business men extremely effective. In manner he was sometimes more than brusque, though by nature he was kindly, especially to young men; to solicitors he seemed sometimes to be overbearing; and in his treatment of witnesses he was often rough. He was a good example of the successful advocate who makes his way by sheer ability and hard work.

Among the cases in which he appeared as counsel may be mentioned the appeal of Richardson Spence and Co. v. Rowntree, in which the appellants, owners of a line of steamers, sought to restrict their liability for loss of luggage or injury to passenger to $100. The condition, however, was printed in small type, and was not brought to the attention of the respondent, and the Law Lords declined to hold that the passenger was bound by the limitation; Bigham was counsel for the company. In Smurthwaite v. Hannay, in which Bigham appeared for the successful appellants, a curious attempt was made in what may be termed cooperative litigation. Bales of cotton were shipped by several shippers in a general vessel and on bills of lading in substantially the same terms. On arrival some of the bales were found to have disappeared and some could not be identified. Sixteen holders of bills of lading, of whom nine were shippers and seven consignees, joined in one action against the shipowners, claiming damages for non-delivery of the bales specified respectively in the bills of lading. The Law Lords held that such a joinder to one action of a number of claims where the causes of action were separate and distinct was inadmissible. The principal judgment was delivered by Lord Russell of Killowen, during the short period while he was a Lord of Appeal in Ordinary. It was this case also which suggested a famous mot of Bowen's, that it was not the intention of the rule of Court on which the action was based, "that a writ should be like an omnibus travelling on a certain route into which any number of persons may get as passengers for the journey." Bowen dissented from Lord Esher and Kay in the Court of Appeal, and his opinion was accepted by the Lords.

In November, 1885, Bigham stood unsuccessfully as Liberal candidate for the East Toxteth Division of Liverpool. After the split in the Liberal Party he joined the Liberal Unionists and in July, 1892, contested the Exchange Division of Liverpool, but was defeated by the late Mr. Justice Neville by 66 votes. In 1895 he succeeded in capturing the seat. His short career in the House of Commons was as uneventful as that of most lawyers who pass through Parliament on their way to a seat on the Bench, to which Bigham's commanding position justly entitled him, apart from any claim he might have upon his party. He was, however, a member of the South African Committee appointed in 1896 to inquire into the Jameson Raid.

ON THE BENCH

The year 1897 brought many changes on the Bench, and as more than one vacancy was created in the Long Vacation of that year it is not easy to say exactly whom Bigham succeeded; it was probably Mr. Justice Cave. However this may be, just before the Courts reopened his appointment as Judge of the Queen's Bench Division was announced, and the rounds of applause with which he was greeted when he proceeded up the Great Hall of the Law Courts on the opening of the sittings testified to the satisfaction felt by the profession and the public that a promotion so justly earned had been attained.

As a Judge Bigham on the whole fulfilled expectation. His grasp of the principles of commercial law and his knowledge of how business is carried on enabled him to dispose of his cases with rapidity. If he did not possess the higher intellectual gifts or imagination that go to make up the lawyers whose names are carried down the ages, he was exceedingly quick and clever, but he was too apt to take short cuts; and he was by no means free from the judicial fault of premature expression of opinion or bias, nor was he always patient with counsel whose minds did not work on the same lines as his own. But he was an undoubted accession of strength to the Common Law Bench at a time when it was by no means all that it should have been and has since become.

For a time, like others of the Common Law Bench, he sat as an additional Judge of the Chancery Division. In this unfamiliar sphere he was not altogether a success. He had not the wide knowledge of R. S. Wright, who showed himself as great a master of Equity as of Common Law. But in the case of Bradley v. Carritt, involving the application of the doctrine “once a mortgage, always a mortgage,” and of the law which does not admit of the creation of a “clog” on redemption, points capable of very subtle developments, his decision was approved by three learned Lords against two. The Judge had a similar experience in the case of Seaton v. Burnand, in which an insurance had been effected on the solvency of a surety for the repayment of a loan. The interest was somewhat usurious and the borrower failed to pay. Bigham, who tried the case with a special jury, enforced the contract against the underwriters being of opinion that the only material fact was the solvency of the surety, and that there had been no fraud on the part of the assured. The Court of Appeal held that the whole story, including the rate of interest and the position of the parties, ought to have been disclosed to the underwriters. The Appeal Judges accordingly ordered a new trial. The Law Lords, however, reversed this decision, and restored to its full effect that of the Judge of first instance.

Bigham's work lay largely in the Commercial Court; he presided for a time over the Railway and Canal Commission; and when Lord Loreburn revived the practice of calling puisne Judges to take a turn in the Court of Appeal he was the first chosen by the Chancellor to act in that capacity. He also served for some years as the Judge to whom bankruptcy business is assigned.

As a criminal judge, Bigham presided over several trials that attracted much public attention. In 1902 a lady, a member of a well-known Wiltshire family, was charged with the ill-treatment of her young child. Public feeling ran high in the neighbourhood where the family lived, and the venue was removed to the Central Criminal Court where she was tried before Bigham. The sentence he pronounced was a fine of £50, which was generally considered inadequate for the ill-treatment that the child had received. In view of the criticism to which the learned Judge was subjected, it is, however fair to recall that the worst charges upon which the prisoner was tried, were not wholly substantiated, and in pronouncing sentence Bigham laid stress upon this fact. He also presided at the trial of the Liverpool bank clerk, Goudie, in which an extraordinary conspiracy was unravelled. But perhaps the most remarkable trial that took place before him was that of the financier, Whitaker Wright, in January, 1904. The case lasted for a considerable time, and from the first it was easy to see the drift of the Judge's mind. Though it would not be true to say
that counsel had not the opportunity of saying all that was possible for the prisoner, it was a matter of common observation that Bigham showed hostility to the accused from the outset, and he drew from Lawson Walton, who was leading for the defence, an unusual protest on the ground that the Judge had raised the laughter of the gallery against his client. It will be remembered that the sentence of seven years' penal servitude passed by Bigham was not served, as the prisoner took poison immediately after it had been pronounced.

In 1909, on the elevation of Sir Gorell Barnes to the peerage, Sir John Bigham was appointed President of the Probate, Divorce, and Admiralty Division, and was made a Privy Councillor. He held the office but for one year; and compared unfavourably with his predecessor in handling the delicate duties of the matrimonial side of the Division, though as regards the Admiralty work he was naturally more in his element. His attitude towards divorce generally may be gathered from an answer he gave to the Archbishop of York (Dr. Lang) before the Divorce Commission in 1910:

THE ARCHBISHOP---The principle that has hitherto governed the grounds of divorce has been the Christian principle that only adultery is a permissible ground for divorce. I take it you, in your evidence, leave that principle on one side?

SIR JOHN BIGHAM---I do. I do not look at it from a religious point of view at all.

In March, 1910, he retired from the Bench and was created Baron Mersey. He was said to have explained his selection of this title on the ground that he was "leaving the Atlantic to F. E. Smith." At once he began to take part in the hearing of appeals before the House of Lords and the Judicial Committee. Until the advent of Lord Summer (who had been his pupil) in 1913, the highest Courts were not at the time strong in Judges well versed in the principles of commercial law, and Lord Mersey was a valuable addition at the hearing of appeals of this character. Though he had now reached an age when, after his strenuous life, he might have reasonably considered that he had earned his rest, he sat constantly at both tribunals, and the officials charged with the duty of forming a Court always knew that Lord Mersey could be relied upon even at inconvenience to himself, to assist in ian emergency.

In June, 1915, for the first time since the Crimean War, the Judicial Committee sat again as the final Court of Appeal from Prize Courts within the Empire, and Lord Mersey was requested by the Lord Chancellor to preside. The first appeal heard was that of the Odessa, in which he delivered the judgment, holding that English or neutral bankers, as holders for value of the bills of lading, had no claim on an enemy cargo condemned as a prize---a decision of reaching importance that in the course of the War must have affected claims involving very large sums. Lord Mersey did not preside over the Prize Appeal Board for long, and before the end of the year his place was taken by Lord Parker of Waddington. He was now an old man, and his increasing deafness made sitting an effort to him; to the regret of his colleagues he was hardly seen again at either of the final Courts. His judicial labours were, however, not yet over, for in 1921, when the arrears in the Divorce Court had become serious, he lent a helping hand in his old Court for some weeks.

EXTRA-JUDICIAL WORK

Outside his long judicial career, extending over a quarter of a century, Lord Mersey performed valuable public work on the many occasions when he was asked to preside or serve on commissions and Inquiries. In 1902 he was a member, with Lord Alverstone and that accomplished soldier, the late Sir John Ardagh, of the Royal Commission for Revision of Martial Law Sentences in South Africa. In 1912 he was the Commissioner appointed to inquire into the wreck of the Titanic. He presided over the International Conference on Safety of Life at Sea in 1913; in 1914 he was president of the Court of Inquiry in Canada on the loss of the Empress of Ireland, also of the Admiralty Transport Arbitration Board in the same year; and in 1915, as Wreck Commissioner, he inquired into the destruction of the Falaba and the Lusitania. In 1916, for his many public services, he was advanced to a viscounty.

In private life Lord Mersey was a genial companion, and he enjoyed society and seeing his friends, especially the youngest. With age he had mellowed, and there are many who will sorely miss his kindly, friendly personality; he was always ready for gossip, and generally had an amusing story to tell. He was interested in the arts, especially the drama, and until quite the last years of his life was constantly to be seen at private views, first nights, and concerts. He read Stendahl, too, in his old age. He is more than once referred to by name in Mr. Shaw’s play Getting Married. He enjoyed dining at the Inns of Court, and he was a familiar figure at the Athenæum.

The late peer married, in 1871, Georgina, daughter of John Rogers, of Liverpool. Lady Mersey, who died in January, 1925, possessed a singular charm, both of person and of mind, and a charity of heart which endeared her to friends of all ages. Lord Mersey leaves two sons, the elder of whom, Lieutenant Colonel the Hon. Charles Clive Bigham, C.M.G., C.B.E., who succeeds to the title, has had a distinguished military and public career, and was correspondent of this journal in the Greco-Turkish War of 1897. The new peer married Mary, daughter of the late Sir Horace Seymour, and has three sons and one daughter. Lord Mersey’s second son, the Hon. Sir Trevor Bigham, K.B.E., C.B., was appointed an Assistant Commissioner of Metropolitan Police in January, 1914, and succeeded Sir Wyndham Childs in control of the Criminal Investigation Department last November.

Related Biographies:

John Charles Bigham QC

Acknowledgements

Mark Baber

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    Copyright © 1996-2018 Encyclopedia Titanica (www.encyclopedia-titanica.org) and third parties (ref: #3665, published 3 September 2004, generated 14th December 2018 09:18:49 PM)
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