duction ' to the House of Lords he wrote to Lady
Russell :
House of Lords, Tuesday.
MY DEAR WIFE, I was after all rather sorry I did
not countenance your coming to the ' introduction ' a lot
of my friends from the Commons did. It went off all
right. We were in gorgeous raiment, and the Garter
King is a sight to see to say nothing of the Chamberlain
and the Hereditary Earl Marshal, the Duke of Norfolk.
I should have been down last night, but I had to-day to
sit to decide my first case as Lord of Appeal. I said
nothing, but looked very wise, and I did in fact under-
stand the case thoroughly.
I think I shall find the work fairly interesting. Let
the trap (if it is not raining), please, meet the 10 o'clock
train from Waterloo. Love to all.
My dear Wife,
Yours always,
RUSSELL OF KILLOWEN.
In reply to a letter of congratulation from Mr. (now
Sir Edward) Russell, he wrote :
MY DISTINGUISHED FRIEND AND NAMESAKE, Your
letter, I need not say, gratified my wife, and, I need not
say, gratified me greatly. You have always been most
kind and over-generous to me. You will readily under-
stand that the severance from active political life, from
268
JET. 60-62] DEATH OF LORD COLERIDGE
the Commons, and from the contests of the Bar has
been a wrench ; but I felt that if ever I was to under-
take judicial work I ought to begin when I could truly
say that I still possessed such capacity as God had given
me, and have, above all, at once the energy and the
will to learn.
My dear friend, ever yours truly,
C. RUSSELL.
About the same time he wrote to his brother, Father
Russell :
MY DEAR MATTHEW, Your letter is, as you have
always been to me, kind, generous, indulgent.
The determining point in my acceptance of my new
position was this, that a time must soon come when I
could not continue working, as I have done for years, at
high pressure ; and I felt that, if ever I were to under-
take a judicial post, I ought to bring to it such capacity
and energy as God has given me, unimpaired. I need
not say I have some keen regrets. . . .
My dear Matthew, your affectionate brother
(still unpatented),
C. RUSSELL.
An old friend in Belfast, one whom he had known in
the days of the Ulsterman, wrote to congratulate him.
Russell replied :
DEAR MR. M'LORINAN, You are one of my very
oldest living friends, and I value all the more on that
account your kind letter.
Faithfully yours,
C. RUSSELL.
But many of his friends were disappointed. I called
on him shortly after his promotion, and expressed what
269
LORD RUSSELL OF KILLOWEN [1894
I thought was the general dissatisfaction. He laughed
and said, ' It is not so bad as you think.'
A month afterwards Lord Coleridge died, and
Russell became Lord Chief Justice of England.
Early in 1895 Mr. Gladstone wrote to him :
I have never got over my wrath at the failure of our
effort to repeal the unjust and now ridiculous law which
kept the highest office in your profession out of your
reach. It is, however, some consolation to reflect that
you are on a throne only a little less elevated, and very
far more secure. From that seat I hope you will for a
long time continue to dispense justice in health, pro-
sperity, and renown.
In bringing the story of Russell's career at the Bar to
an end, I shall publish the following appreciation of him
for which I am indebted to the courtesy of Lord James
of Hereford :
L-0<JN:Ji
' I find some difficulty in complying with the
request that has been made to me to record my judg-
ment upon Lord Russell of Killowen's qualities as an
advocate.
' I saw but little of him in his early days. Those
were for the most part spent on the Northern Circuit
and in local practice in Lancashire. But I became fully
acquainted with his great powers when in January 1874
he appeared as counsel in support of a petition against
my return for the borough of Taunton in the previous
October. Being the person whom he had to attack, I
was not in a position to form an impartial judgment
upon his methods of advocacy upon that occasion. But
I fully recognised the great ability he displayed, and
he certainly did not fail in the zeal he evidenced in
270
Mr. 62] LORD JAMES OF HEREFORD
support of his client's interests. From that time as his
practice increased we often met in forensic contest, and
during the later years of our careers at the Bar we
were frequently engaged in hard-fought encounters.
' If I draw comparisons between Charles Russell's
powers and those of the numerous advocates with whom
I was associated during my professional life, it is neces-
sary to refer to the qualities he possessed. He was an
Irishman and was endowed with the mental elasticity of
the Irish race. He was a northern Irishman and was
not deficient in the fixed determination of purpose which
so often characterises the dwellers in Ulster. He was
brilliant in his power of expression, and at the same
time was most industrious in thinking out what ought to
be expressed. In the preparation of his cases he never
spared himself. Although he thoroughly enjoyed many
of the pleasures of life, he ever made the duties of his
profession his first care, and never, as far as I know, was
wanting in that full knowledge of details without which
the most powerful advocate must be at fault. These
qualities produced in him a combination of mental
efficiency which rendered him a great advocate great
in all the phases which pertain to advocacy. He could
fully deal with questions of law, his power of cross-
examination was of the highest, and his speeches were
full of eloquence combined with subtle reasoning. But
there was one characteristic which helped Lord Russell
more than these great qualities to obtain the high
position he secured at the Bar. That was his immense
determination. He never would consent to be beaten,
and in fact never was beaten until the Court was
adjourned. He was always confident that he could gain
271
LORD RUSSELL OF KILLOWEN [1894
his verdict and seemed to insist upon doing so. If one
point failed him another was immediately presented,
and it required all the powers of a strong judge to repel
the repeated appeals made to him. I recollect certainly
two occasions when I had endorsed my brief with a
judgment given in my client's favour, which I had
to change into a contrary finding through the pertina-
cious refusal of Charles Russell to accept the first
decision ; and thus it was I found him the hardest man
to beat I have ever been opposed to at the Bar.
' Either as a junior or as a contemporary I have been
associated with Cockburn, Thesiger, Kelly, Mellish,
Coleridge, Karslake, Giffard, Hawkins, Holker, and of
course many others. I cannot say that Russell was the
equal to all these men in every particular quality.
Cockburn's eloquence has been unrivalled by any
advocate of our time ; Kelly was a most subtle reasoner ;
Mellish was a consummate lawyer, and Lord Brampton
possessed the highest power of acute cross-examination.
But I doubt if any of these men possessed such a combi-
nation of the principal qualities which avail an advocate
as was given to Charles Russell, for in respect to none
of them was he deficient. Like every advocate he
preferred to conduct a winning case rather than one
which promised defeat, and I believe he was apt to point
out to his client any deficiency in his case in very distinct
language. But the battle once joined, his moral courage
was as a very armour to him. There was no flinching,
and he never willingly consented to retreat.
1 I recollect, however, his once giving way, probably
from the desire that right should be done. He was
about to open a case of libel in which his client, a
272
. 62] LORD JAMES OF HEREFORD
financial agent, complained of an attack that had been
made upon him in a newspaper, for the proprietor of
which I appeared. My task was to show that the plaintiff
was an adventurer. As we sat waiting for the case to
commence, I asked Russell if he would tell me what was
the meaning of the letters F.R.A.S. which had constantly
appeared after his client's name in different documents.
The inquiry was made from his client, and upon the
answer being obtained I heard some very strong language
being employed. As I had been instructed, F.R.A.S.
represented Fellow of the Royal Aquarium Society, a
fellowship which I believe could be purchased in the open
market for a few shillings. The action was not tried.
1 But this is a trivial digression which perhaps ought
to have been avoided. I could write much of the incidents
of the cases we were engaged in, especially of the
Parnell inquiry, which afforded probably as great an
opportunity for advocacy as ever man enjoyed. But
such is not the task allotted to me. I have been asked
to record the high estimation in which I held the powers
of a most able and powerful advocate, without touching
on the great qualities affecting other phases of his life ;
and I trust that I have succeeded.
JAMES OF HEREFORD.'
273
LORD RUSSELL OF KILLOWEN [1895
CHAPTER XIV
LORD CHIEF JUSTICE
IT has sometimes been said that a great advocate seldom
makes a good judge. If this be the rule and I express
no opinion on the point Russell was a notable excep-
tion. In five short years he made a reputation on the
Bench which almost overshadowed his reputation at the
Bar. He was strong, just, painstaking, and expeditious.
' He was,' says one of his colleagues, ' popular on the
Bench. He was patient and considerate ; now and
then he would burst out like the old Russell, but that
was very seldom. As a rule he kept his temper under
perfect control.'
'It is a great loss to the country and to the race of
Chief Justices,' says another colleague, ' that he was cut
off so early in his career on the Bench. His reputation
was growing every day, and another five years would
have made a great difference in his permanent position
in history.' And yet, as it is, he has made a mark
in English judicature which will not soon be effaced.
' One great quality,' says an eminent member of the
Bar, ' distinguished Russell as a judge ; he always went
straight for the bull's-eye of truth. If he were occasion-
ally arbitrary or impatient, it was owing to his desire to
get quickly through the business. No man could be more
274
JET. 63] LEGAL EDUCATION
attentive. A judge will sometimes loll in his chair, he
will sometimes even read a newspaper a most insulting
proceeding when you are addressing the jury. There
was nothing of that about Russell. He gave his whole
mind to the case, and to every one in the case. At the
Bar he would ride rough-shod over an opponent. On
the Bench he always considered your feelings. I think
he was greater as a judge than as an advocate.'
Among the subjects which engaged Russell's atten-
tion, after his elevation to the Bench, the question of
legal education held a foremost place. Russell was a
born reformer, and, no matter what position he might
find himself in, he was sure to promote measures of pro-
gress. At the suggestion of Lord Justice Lindley, and
with, I think, the co-operation of Mr. Montague Cracken-
thorpe, K.C. who had won the studentship for which
Russell competed in the examination of 1859 he de-
livered an address on ' Legal Education ' at Lincoln's
Inn Hall in October 1895.
At the outset he briefly reviewed the history of the
question. In 1832 the charter of the Incorporated Law
Society was obtained, and in 1836 the body of solicitors
decided that a satisfactory public examination should be
a condition precedent to admission as a solicitor. In
1833 some of the Inns of Court appointed Readers or
Lecturers in law, but the students at Lincoln's Inn could
not attend the lectures at the Temple, nor Temple
students the lectures at Lincoln's Inn. There was no
concert between the Inns, and therefore no system of
education as a whole. In 1846 a Committee of the
House of Commons condemned this state of things, and
T2
LORD RUSSELL OF KILLOWEN [1895
in 1852 a standing Council of eight Benchers, repre-
senting all the Inns, was formed to frame a scheme of
lectures open to the members of each of the Inns. This
standing Council was the germ of the Council of legal
education. Subsequently five Readerships were insti-
tuted, viz. in jurisprudence and Roman law, real property,
common law, equity, and in constitutional law and legal
history. It was under this regime that Russell himself
made his way to the Bar. There was, however, as yet,
no guarantee of competent legal learning as a preliminary
to call. In 1855 a Royal Commission was appointed to
inquire into the subject. This Commission, like the
Committee of 1846, condemned the existing state of
things, and recommended (i) the necessity of a pre-
liminary examination before admission as a student, and
of another examination before call, and (2) the formation
of the Inns of Court into a legal university with power
to confer degrees in law, the necessary funds for carrying
out the scheme to be provided by the Inns of Court. In
1872 the recommendations of this Commission were acted
upon to the extent that the preliminary examination (for
admission as students) was adopted. In 1877 a bill for
the establishment of a law school was introduced by
Lord Selborne, and read a second time in the House of
Lords ; but it never became law. ' All these events,' said
Russell, ' passed lightly over the heads of the Benchers,
and [though some regulations of importance were adopted
and an official examination before call was made com-
pulsory] we are still far off a system of legal training
worthy of the name.' Russell then developed his own
scheme.
276
. 63] LEGAL EDUCATION
My proposition is that a royal charter should be
obtained to establish a school of law, to be called, say,
the ' Inns of Court School of Law.' The scroll or
governing body should consist of, say, thirty members
ten to be nominated by the Inns of Court, ten by the
Crown, one each by the Lord Chancellor, the Lord Chief
Justice, the Master of the Rolls, one each by the four
Universities of Oxford, Cambridge, London, and Victoria,
and three by the Incorporated Law Society. These
figures are merely suggestions. Personally I should desire
to have some of the governing body elected by the free
voice of the profession as a whole. I should not limit
the representatives of the Inns of Court or of the
Incorporated Law Society to members of their own
bodies respectively. In this way, coupled with the
nominating power of the Crown and of the Universities,
security would be had against that narrowness which, in
spite of ourselves, has a tendency to creep into purely
professional associations. I attach importance to the
Universities being directly represented on the governing
body, because (amongst other reasons) it would render it
easier, and with safety, to determine what degrees and
what testamurs might properly be accepted in the case of
University students and graduates, and it would tend
towards establishing that connection of legal education
with University training which, with advantage, largely
prevails in other countries, but is almost wholly wanting
in our own. I should confer on such a body the power
of granting academic distinctions, and I should commit
to it in fullest confidence the settling of a scheme of
preliminary examination, of systematic instruction, and of
final tests of fitness for the profession of the law. A
difference would, no doubt, have to be made between Bar
students and others. But that is a matter of detail. I
think such a scheme, well considered in all its parts,
ought to receive the sanction of the Inns of Court, and
would receive the warm support of the profession gene-
277
LORD RUSSELL OF KILLOWEN [1896
rally. It continues the name of the Inns of Court as it
ought to be continued in connection with the cause of
legal education. The new creation would be, in effect,
their child. On the governing body their voice would be
powerful, and to the Inns of Court, I need hardly say,
we must mainly look for the funds to carry on the work
in worthy fashion. The Inns of Court to their credit,
be it said have never shown a spirit of parsimony. On
the existing system the annual expenditure amounts to
some 7,ooo/. If the lectures and classes are made
attractive, I doubt whether any larger sum, or, at all
events, any substantially larger sum, would be required
to work the scheme which I advocate.
I have said that to this body I would confidently
entrust the work of education. To the Inns of Court I
should still leave untouched, in all their fulness, those
functions of discipline, those powers of calling or refusing
to call, and of disbarring, which they have hitherto
exercised with honour to themselves and with advantage
to the public and to the profession. To the Incorporated
Law Society, in like manner, I should leave untouched
such analogous authority as they now possess. The
pith and substance, then, of what I have to urge is
the necessity for establishing a school of law. To
the governing body of that school of law will fall the
working out of a wise and comprehensive system.
But nothing came of this address, and the question of
' legal education ' still belongs to the future.
In July 1896 Russell presided over an important State
trial. Towards the end of 1895 some five hundred or six
hundred English subjects (including a number of English
officers), encouraged by Cecil Rhodes, the Prime Minister
of the Cape, made a raid into the territory of the South
African Republic with the intention of overturning the
278
. 64] THE JAMESON RAID
Government of Johannesburg and of seizing the town.
They were stopped near Krugersdorp by the troops of
the Republic, captured, and the leaders were handed over
to the English authorities to be dealt with for breach of
the neutrality laws. In July 1896 these gentlemen were
tried at Bar in London before the Lord Chief Justice.
Baron Pollock, Mr. Justice Hawkins, and a special jury,
for fitting out a warlike expedition against a friendly
State in violation of the Foreign Enlistment Act. The
case against them was proved up to the hilt. Seldom,
indeed, had so mad and criminal an enterprise been
exposed. I was in Court when the Lord Chief Justice
charged the jury. It was an impressive scene. Fashion-
able London had mustered in force to sympathise with
the raiders, and to hail their deliverance with joy. That
Englishmen that English officers should even be
tried for invading the territory of the objectionable Boer,
seemed preposterous to these proud Imperialists who
pinned their faith upon Cecil Rhodes and the ' com-
mercial asset.' But Russell resolved that justice should
be done, and stood between the jury and public opinion.
From the beginning to the end of the trial he never
allowed the former to escape his iron grip. He charged
home against the prisoners, making their guilt and folly
transparent, and ended by submitting a series of ques-
tions which gave the jury no loophole for a verdict of
acquittal.
My brethren and I put these questions to you for
two reasons. The principal reason is that they are
necessary in order to show the dividing-line between
what are questions of fact and what are questions of
law, because we think that this is peculiarly a case in
279
LORD RUSSELL OF KILLOWEN [1896
which it would be almost grotesque to ask you, with-
out any guidance from the Court, to pronounce an
opinion about what was the effect of documents, and so
forth. I also mentioned to you that in asking you to
answer these questions we were following a precedent
which was set in a very remarkable case a murder
trial a case which excited a good deal of attention at
the time. Of course you remember the shipwrecked
crew, who, finding themselves on the ocean without any
means of obtaining food, sacrificed the life of one of the
persons in the boat. The jury were asked to find, and
found, certain facts ; the case was afterwards considered
upon these findings. Further, I may mention to you
that we were also about to tell you, if you choose, in
opposition to the request which I and my brethren make
to you, to refuse to answer those questions, nobody can
make you answer them. The Court asks you to answer
them because they think it is right, in the interests of
justice, and in the interests of the vindication of the law,
that they should be answered. These questions, then,
are : i. Were the defendants, or any, and which of
them, engaged in the preparation of a military expedi-
tion at Mafeking to proceed, and with the intention that
it should proceed, against a friendly State, the South
African Republic ? (2) Did the defendants, or any, and
which of them, assist in the preparation of such expedition,
or aid, abet, or counsel or procure such preparation ?
(3) Were the defendants, or any, and which of them,
employed in any capacity in such expedition ? I propose
to put the same question to you exactly as to the Pitsani
Pittogo with this further question : Did her Majesty the
Queen by her representatives exercise, in fact, dominion
and sovereignty in the district in which Pitsani Pittogo is
situated ? As regards these questions I will make one or
two observations to you. If you arrive at the conclusion
that all these defendants were engaged in the preparation
you will answer the question, ' All ' ; if none, ' None ' ; if
280
JEr. 64] THE JAMESON RAID
some, who were they ? The same as to the second :
' all,' ' none ' ; if some, who ? The same as to the third.
Were they employed, or any of them, and which, in what
capacity, in the expedition ? You must ask yourselves
whether there is any reason which occurs to your honest,
dispassionate judgment, firmly applied in the considera-
tion of the facts of the case, if there is any reason why
any are to be excluded from the enumeration of any of
(these questions. I am not going to trouble you with
any further observations. It has been to you, no doubt,
and I am sure it has been to us, a very anxious
case. We have been appealed to, and you have been
appealed to, by reference to the character and distinction
of these men. We should be sorry to doubt the one or
the other. It makes the case more important. It
makes the case one in which it is more necessary, if the
law has been violated, that the law should be vindicated.
If, upon the review of this evidence, you can answer any
one of these questions, honestly saying that there is no
evidence against any of these prisoners, do so. It is
your right ; the responsibility is yours. If the conviction
is borne in upon your minds that this was a military
expedition, contrary to this act in the sense in which I
have described it, you will do your duty, as jurymen
have done before in circumstances much more difficult
than these, and concur without hesitation in saying they
are guilty.
The jury, after an hour's deliberation, answered all
the questions in the affirmative.
The Lord Chief Justice : ' That amounts to a verdict
of guilty which you now find against all the defendants.'
The jury then tried to break through the iron ring
which had been drawn around them, when the following
scene took place :
The Foreman : ' The jury have thought fit, in answer-
281
LORD RUSSELL OF KILLOWEN [1896
ing those questions, to append a rider in the following
words : " The jury consider that the state of affairs in
Johannesburg presented great provocation." '
The Lord Chief Justice : ' You find a verdict against
the defendants, with that representation.'
The Foreman : ' We answered your Lordship's ques-
tions categorically.'
The Lord Chief Justice : ' Then I direct you that in
accordance with those answers you ought to find a
verdict against the defendants.'
Sir Edward Clarke : ' My Lord, I wish to say
The Lord Chief Justice : ' I cannot at this moment
allow any interposition.'
Sir Edward Clarke : ' I am calling your Lordship's
attention
The Lord Chief Justice : ' At this moment, no. I
am addressing the jury, and cannot allow it. I must ask
you to sit down.
' Gentlemen, I direct you that in point of law these
findings amount to a verdict of guilty against the de-
fendants, and it is your duty to say so.'
The Foreman : ' There is one objection to that. We
have answered your questions categorically as an alter-
native. We do not agree on a verdict of guilty or not
guilty.'
The Lord Chief Justice : ' That is a most unhappy
state of things, and if there is one juror objecting to it
he ought to reconsider it. These questions, answered