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Book review: Sir James Munby on Mr Justice McCardie (1869-1933): Rebel, Reformer and Rogue Judge

Date:9 AUG 2017
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President of the Family Division

The full version of this article appears in the August 2017 issue of Family Law

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On any view, Sir Henry Alfred McCardie, who was a judge of the King’s Bench Division from 1916 until his suicide in 1933, was one of the most unusual and most remarkable of the men who have sat on the judicial bench in modern times. Born in Birmingham in 1869, he left school at the age of 15, never went to university, and until called to the bar at the age of 25 had been an auctioneer’s clerk. A phenomenally successful junior, he withdrew his application for ‘silk’ because of Lord Loreburn LC’s delay in dealing with it and never applied again. In his last 6 years at the Bar, and still a junior, he earned an average of £23,000 (in modern money £2.4m) a year. When appointed to the bench in October 1916 at the age of 47 it was not because he was Lord Buckmaster LC’s first choice – he was not – but because of the influence of Asquith in what must have been one of his last decisions as Prime Minister. Then, as now, to be appointed to the High Court Bench direct from the junior bar was a rare distinction for one who had never been the Treasury‘devil’. The most recent precedents in 1916 were the appointments of Willes in 1855 and Blackburn in 1859.
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McCardie was famous, both on and off the bench, for his observations, in terms which probably horrified many of his judicial brethren, on topics many of which in those days were not usually the subject of judicial concern let alone public discussion. It was probably with McCardie in mind that Mackinnon LJ – no admirer: he wrote that McCardie was not a great judge and that his appointment was ‘an unfortunate accident’ – famously observed (On Circuit, Cambridge University Press, 1940), that ‘He is the best judge whose name is known to the fewest readers of the Daily Mail’. At Christmas 1930 McCardie went so far as to hold a press conference in his room at the Royal Courts of Justice. 

McCardie’s private life would probably raise many eyebrows even today. Unmarried, and often referred to in the (no doubt well-informed) popular press as the ‘bachelor judge’, he had two long-term mistresses, neither of whom, apparently, was aware of the existence of the other. By one of them he had an illegitimate son, born in 1919, who knew him as Mr Hardie without being aware that he was in fact his father.

Debilitated by recurrent bouts of influenza,depressed, weighed down by gambling debts which he could not pay and perhaps, it has been suggested, prey to blackmailers, McCardie shot himself in April 1933. (Willes had also shot himself while still a serving judge.)

Now all this, I suspect little known to most of today’s generation, undoubtedly makes for a fascinating ‘read’ but what, if anything, is its relevance for the modern family lawyer? McCardie, after all,sat in the King’s Bench Division, not the Probate Divorce and Admiralty Division, as it then was. 

There are, perhaps, three answers to this. The first is that, because of the survival of such common-law actions as enticement or the tradesman’s claim against the husband for his wife’s necessaries, and of such common-law doctrines as the rule that a wife could not sue her husband in tort, topics which would now be thought of as part of family law, and therefore for what is now the Family Division, were then litigated in the King’s (now Queen’s) Bench Division. The second is that, in consequence of the Administration of Justice Act 1920, divorce suits became triable on circuit by King’s Bench judges. As Stephen Cretney, in his magisterial Family Law in the Twentieth Century: A History (Oxford University Press, 2003), has pointed out, the 1920 Act was ‘far more significant in the development of divorce law than is often realised’. One very obvious manifestation of this was the way in which McCardie took to the work with enthusiasm and quickly became a powerful judicial advocate of divorce law reform. The third is that, at a time when judicial thinking in the PDA was, to put it politely, conservative and limited in outlook, McCardie was, both on and off the bench, outspoken in his views on every-day, social, sexual and family matters. 

Mr Justice McCardie (1869-1933): Rebel, Reformer and Rogue JudgeAntony Lentin (Cambridge Scholars Publishing, 2016)