2015 Selden Society lecture – Dr Dominic O’Sullivan on Lord Blackburn

2015 Selden Society lecture – Dr Dominic O’Sullivan on Lord Blackburn


Dr O’Sullivan QC graduated
with Bachelor of Arts and Bachelor of Laws, first class honours in both, from the University of Queensland in 1993 and 1994 respectively. He was admitted as a solicitor with
the well-known Brisbane firm, Feez Ruthning, and after that undertook
postgraduate study at Exeter College in Oxford as a Commonwealth scholar, obtaining his D.Phil in 2001. He practiced as a member of Chambers in London from 2001 to 2006 where he remains an associate member and since 2006 he’s practiced at the Queensland Bar. He was appointed Queen’s Counsel in 2014. I’ve had the advantage of glancing at the paper and as you would expect it is a work of
scholarship and I’m sure that you will all find it interesting and educational. Could you
please welcome the speaker. (Applause) Thanks very much, Justice Fraser and
thank you all very much for coming this evening. We’ve certainty got some Scottish weather outside. By selecting leading English judges from the Elizabethan era down to today, this
series of lectures, of which tonight is a part, seeks to tell us something about
the lives of important judicial figures and at the same time something about the times in which they lived and worked. So far in the series we’ve heard of the great Edward Coke who lived in the late 16th and early 17th century. We’ve heard of Lord Mansfield and Lord Eldon who are at either ends of the 18th century. And tonight
we’re going to move forward into the 19th century and we’ll discuss the most
important judge of the Victorian era, the remarkable Colin Blackburn. He was an unknown Scott’s barrister when he was appointed, to the surprise of the
profession, to the Court of Queen’s Bench and after that he went on to establish
himself as the greatest common law judge of the century. He’s said to have made a
larger contribution to the development of English law than any other judge
since Lord Mansfield, and indeed of any English judge say for Mansfield.
And among these contributions it’s been asserted by scholars that he introduced
into English law the doctrines of Mistake and Frustration in the law of contract. So Blackburn is interesting to us
not only because we can see he dominated the 19th century, but
he’s interesting also because of the lasting contribution he made to English
law and thereby of course to Australian law. So my plan tonight is to proceed chronologically through Lord Blackburn’s life and in doing
that I want to try and develop three points and at the same time I want to try and give you some picture of legal life in Victorian England. So the three points; the first is,
we want to explore the curious fact that although he became enormously important
as a judge, Colin Blackburn was not indeed a successful barrister at all. And we’ll
look at why that might have been so and spend a moment also reviewing the
reasons for the furore that erupted when he was appointed judge in 1859. The same
year coincidentally when Queensland was created as a separate colony. The chronology in the handout will give us an overview of his life and you’ll see 1859 it is an important date.
The second point I’ll seek to develop during the lecture is the
interesting disconnect, I think, between on the one hand those cases that drew
Lord Blackburn to the attention of the Victorian public and indeed to lawyers
on the one hand and on the other hand the cases that he’s now regarded as
being responsible for in development of our law. This disconnect between what was
important at the time what we regard as important now. None of the cases that we now regard as foundation to the Common Law where at the time seemed to attract not much attention at all. So that’s the second point. The third point we’ll try and make in this
address, is that we’ll try to make the point that Lord Blackburn’s importance today is
not merely or indeed principally a function of his peculiar genius as a
judge, although certainly he was a remarkable man, I’ll try and explain briefly why the
location in time of Lord Blackburn, the time that he was writing, was probably
more important to his lasting significance than his peculiar qualities as a judge.
And I think the last point is particularly interesting to us, anyone
interested in legal history, because we’ll remember that the Royal Courts date from
the 13th century and so it therefore took 600 years of history before the contours of
private law that are familiar to us today, the division between contract, tort and unjust enrichment, those contours didn’t emerge for 600 years and then in
the 19th century we saw for the first time this great division coming into
being. So to my mind the importance of the Victorian era justifies Fifoot’s observation which he
made back in 1959 giving the eleventh Hamlyn lecture about the Victorian era when Fifoot said this of that era, and I quote, he said, ‘to recall the judges and juris of the 19th century may
provide an anecdote to the most vulgar and provincial of modern heresies, the
indifference or contempt for any age but one’s own, the imputed assumption that
the world belongs to the living and as a property in which the dead hold no
shares.’ We turn then to Colin Blackburn’s beginnings, a man who we might properly say, certainty has a great deal of shares in the present. His father was John, of Glasgow, he left Scotland as a young man about the age of
16 and he sailed to Jamaica. He didn’t come back to Scotland until much later in life and it appears that in Jamaica, John made a fortune. We don’t know how but probably in sugar. We’ll come back to Jamaica in a minute. It features strangely enough in Blackburn’s career. After John Blackburn married Rebecca Gillies, their son Colin was born in 1813 in Dunbartonshire in Scotland. He was the second of eight children. His early childhood we know not very much
about. It was probably lived at Killearn House, which was a stately mansion
sitting in beautiful countryside north of Glasgow in the valley of the River
Blane. He was sent away to be educated first at Edinburgh Academy then at Eton College before going on to Trinity College, Cambridge. He is said to have been a very serious student at Cambridge. He studied mathematics rather than classics and he matriculated in 1835 Bachelor of Arts as something called ‘eighth wrangler.’ To Victorians this meant a lot, if you were a high wrangler. It meant that he was placed eighth in the group who obtained a first-class degree, so he was eighth. And at the time if you were a high wrangler that was regarded as a mark of high
distinction fitting a young man for a career in the law. Colin Blackburn was admitted after that as student of Lincoln’s Inn in 1935. We might pause here to note that at this time universities in England offered no degree in law nor indeed did the Inns of Court provide the
training to lawyers they once had many hundreds of years before. So it wasn’t until
1852 that the court adopted a scheme of legal education, the Inns of Court adopted this scheme but it was said to be, I quote, ‘supine or ineffectual’, whilst in 1851 the Convocation at
Oxford established the first serious examination for the Bachelor of Civil Laws it seemed to be no more than an hour’s disquisition upon obscure point of Roman law, in Latin
of course, and a separate school of Jurisprudence wasn’t established in Oxford until 1871 and even that had no focus on contemporary law. Across at Cambridge an LLB degree was set up in 1854 but there didn’t seem to be great
deal of take up for that degree and one reason was that one didn’t need a degree
to enter the Inns of Court. So there was not really any degree for Colin Blackburn or his contemporaries. There was also almost no legal books. Fifoot says, and I quote, ‘save for Blackstone there were few books which an intelligent mind above drudgery could attempt to read without dismay or disgust.’ Notwithstanding the intricate complexities of the rules that attended pleading and practice
before the 1852 reforms, Colin Blackburn was therefore to learn the common law
in the tried and tested means of the time and he did this: he became a pupil.
He became a pupil to a conveyancer, special pleader, or equity draftsman, for
two years, in a process that Lord Campbell described as ‘pupilising’
and which did little more than prepare the young lawyer to learn his trade in
practice. Of this system of legal education Lord Selborne, the great reformer, later said, he said this ‘having thus reared a superstructure without
foundations all that could be done afterwards was to underpin it – an
operation not more satisfactory or safe in education than in building.’
Apparently Blackburn found pupillage, I don’t know, I’ve been unable to discover, who his pupil masters were. He appears to have spent two and a half years as a student before, in November 1838 he was called to the Bar by
the Inner Temple and at that point the young 25 year old barrister was ready to start his new career at the Bar. Now what happened next matched the
experience of most barristers starting out in practice in the 1830s
and 40s. The man who would later become the greatest common law judge of
the century obtained almost no work at all. The entry for him in the Dictionary
of National Biography which was published in 1901 described his early career in the following words, I quote, ‘for some years after his
call he went on the Northern Circuit in a briefless or almost briefless condition.
He had no professional connection, no turn for politics, no
political interest, none of the advantages of person and address which
make for success in advocacy.’ We’ll come back to some of those statements about what
he was missing in a moment. Blackburn’s early years were very typical the times. There existed it
seems a great imbalance between the number of barristers and the amount of
work to be done. The formal requirements for admission we noticed earlier to an Inn of Court were very limited. It was said that to qualify
for the bar, a man, I quote, ‘should eat and drink and be able to write his name.’ There was not nearly enough to work to
go around particularly for juniors and practically all those who rose to
prominence later, at this time experience early years with little or no work and a
great uncertainty about whether they would ever obtain any. The young barristers typically would survive on parental allowances, or writing for journals, or law
reporting, while they struggled to become recognised. I don’t know, but I infer
that his father must’ve provided the means for Blackburn to support himself. He certainty was not making any money from practice. His contemporary Alexander
Cockburn, later Chief Justice of the Court of the Queen’s Bench, in Blackburn’s time, a far more
connected Scotsman than Blackburn, from a very ancient family, his early years were said have been marked, I quote, with ‘struggles in which was mingled no small dash of adventure,’ as he made his escape from his creditors. He later became Chief Justice of the Court of Queen’s Bench. Now as we’ve seen Blackburn was the studious son of a Glasgow sugar merchant. He had no political connections, no social connections of a kind that his contemporaries could have
pressed into service to generate work. In addition it seems that Lord Blackburn’s
personal qualities, as we saw a moment ago, made him somewhat unsuited to the
work of a barrister in the 1840’s and 1850’s Serjeant Ballentine, who was a
contemporary of Blackburn who, fortunately for us, wrote some memoirs of his time. He
said as follows, and I quote, ‘a Scotch accent does not improve a naturally
harsh voice and his demeanor can scarcely be termed graceful or his
manner pleasant.’ Jones reports, and I quote, ‘his appearance
with his burly figure, strong face and round bullet head was not pre-possessing.’ At a time when the revelry of Haymarket exercised a well-publicised pool for the barristers of the Inns of Court and many successful barristers were larger-than-life
figures in society, it was said of Blackburn that he studied
human nature in Coke upon Littleton, ‘without assistance of haunts of revelry.’
Now this combination ill-fitted Blackburn for the work of a trial
barrister. The jury remained a feature of practically all civil litigation of this
time and the successful advocate had to be able to appeal to a jury, men and
women, mainly men, from a walk of society which Colin Blackburn probably had very limited exposure to. An advocate of this time was expected to employ a mix of hyperbole and
theater and that was regarded as part of his art. Indeed at this time the Royal
Courts were regarded as a well-accepted source of entertainment. Those manning the doors would typically charge a fee for entry into the court and the public
would expect and receive entertainment from counsel’s address to the jury, vigorous and often aggressive exchanges between the bar and bench, which of course are now a thing of the past, and counsel’s
cross-examination. Apparently we are told that the public would come to the
entertainment of a court would boo and hiss applaud their favourites, cheer and catcall. It was a very rough and
tumble environment in which ladies or gentlemen of exalted status who would come to court would sit with the judge on his bench and they would have a better vantage point to observe the proceedings and they could ask the judge for direction
in the course of the proceedings. This is the environment in which Lord
Blackburn was operating. The conditions of the courts themselves
were also famously difficult. It was said that a Dr Angus Smith examined the air in the
Court of Queen’s Bench, where Lord Blackburn was later appointed, he collected and analysed
perspiration gathered from the windows and he concluded that the air was, I quote,
‘the most deficient in oxygen of any inhabited place above ground.’ Returning then to the briefless Colin
Blackburn of the Inner Temple, having in his own words, and I quote, ‘literally
nothing else to do, as I had then no business at all,’ he set himself to
reading and writing and he said this was more a means of teaching himself than in the hope of making anything of any value. The result was quite remarkable it was a
treatise published in 1845 under the title Treatise on the Effect of the
Contract of Sale on the Legal Rights of Property and Possession in Goods, Wares and Merchandise. It seemed to become the standard work on the sale of goods. It was the only book on the sale of goods for about 20 years until supplanted by Judah Benjamin’s much more comprehensive work in 1868, the book that we now
know as Benjamin’s Sale of Goods. Now there are some images from the title page of his book at the bottom of your hand out and there are large images out the front of the
court today. The book I think was a remarkable achievement for a 32
year old self-taught barrister. Blackburn later said towards the end of his
life he ‘took great pains with it.’ The introduction explained that the object
of the treatise was ‘to investigate how the legal interest in movable corporeal
property is affected by sale of it.’ It seems to me the book exhibited some of the
characteristics that later came to characterise Blackburn’s judgments on
the bench. Firstly when we pick up the book and
open it we notice how it progresses logically, very logically from one
proposition to the next, slowly and clearly. Secondly, the book focuses
critically upon underlying principles and their relationship. It doesn’t
attempt to simply catalogue a mass of decided cases or focus upon points of
procedure. Thirdly, and another point that comes through very strongly in his later judgments
and probably connected with the other two features we just mentioned, the author looks very much to civilian sources particularly Pothier, which he seems to have read in French. Blackburn does that in order to demonstrate the English and Civilian rules for the passing of title to goods under contract of sale are the same where there exists no differences of underlying principle but are different when English and French law have some underlying difference of
principle and he makes the point that English judges had lost sight of this
distinction. It seems to me thought that it’s difficult not to conclude that in selecting
and exposing underlying principles of English law, for example
whether there must be a delivery before title passes which examines, the author hasn’t to some extent absorbed something of the intellectual architecture of the civilians. By that I mean the architecture that helps him to organise the subject. It’s notable that many many
of the cases Lord Backburn cites in this book were decided only in the last fifty
years. Many were very more recent than that and the volume of recent cases and the timing
of the book itself to my mind was no accident. We’re dealing here with a huge
empire. The British Empire is getting towards its height and the lifeblood of
that Empire was seaborne trade, so alongside charter parties and bills of
lading for shipping, bills of exchange to secure payment, and policy for
insurance for risk, the contract for the sale of goods was a vital component of that
trade. Domestically of course, the industrialising of Britain that was going on had hugely increased the circulation of
manufactured goods and this was of course further bolstered by the advent of
roadways. The conditions outside the courts were right for many many cases about sales of goods. And it seems to me also that Blackburn’s book can be seen as an early precursor to the body of treatise writing that emerged as the 19th century progressed and it seems to be an
important part of a break from the past. A break from the past that gave rise to
a new way of thinking about the law. To digress briefly, the earlier way of thinking about the law can be roughly described as follows: knowledge of the common law consisted of knowledge of what forms of actions could properly be relied upon, how the form of action should be drawn
and then responded to in court and of the very complex procedures attending the
issuing and deployment of the particular form of action in court, before a jury or,
if it was a question of law for a judge alone. And the forms of action were as we know
organised around the very old praecipe writs. They evolved from about the 12th century onwards and by the 19th century, 600 years later comprise very elaborate forms of action
reciting many formal matters that didn’t reflect the truth at all. Rules of pleading prevented you averring
many facts that were true. Those matters that was merely fictional couldn’t be
traversed and if you failed to use the proper form of action or to properly
plead it, that would be fatal to your case. So the new way of thinking about
private law that seemed to emerge in the 19th century, as we know a long way
down the track, went hand and hand with the destruction of these old forms of action.
This was accomplished, as we know, by two very important reform Acts, one in 1832 and one in 1852. The second Act was associated with the work of two contemporaries of Lord Blackburn, the Irishman James Shaw Willes, a remarkable man, and an Englishman called
George Bramwell. Each later became important judges alongside Blackburn. Willes was a Justice of the Common Pleas and Bramwell a Baron of the Exchequer. There were the three most powerful, intellectually powerful, judges really at this time, as we’ll see. So the new way of thinking
that emerged during the 19th century saw private law coming to be
classified not by reference to different forms of action and so by reference to
the alphabet but instead by reference to claims in contract, tort and quasi-contract, as it was then known, and perhaps between real and personal actions. So the common law moved from becoming a body of knowledge about what form of action could be brought and
how they should be pleaded to a more abstract concept of different categories
of rights, organised as rights arising in contract, tort, quasi-contract or statute. We
have this great move from procedure as we would say today to substance, looking
at it through our modern eyes. And as scholars have emphasised, an important part of this great shift in thinking was the series of treatises that emerged
during the 19th century of a kind that had never been seen before. So Blackburn’s book that we’re talking
about now can, I think, be seen to form part of this new species of legal literature. We
move then from Blackburn’s book to his work as a reporter. Now as we know during the 19th century both argument and reasons for judgment were delivered orally, nothing was
reduced to writing. And the practice of those in the business of reporting was to
sit in court watch, listen and take notes. The notes
could then be turned later into a printed report of the case. The modern system of
authorised and reporting emerged only at the end of the 19th century. So before
that time all law reporting was undertaken by private publishers and the
resulting reports are of course known by the name of those who compiled them. And as we can imagine in a world were the supply of barristers greatly exceeded the demand for their services, it’s not surprising that in the early Victorian era, a number of
ambitious young counsel took up law reporting as a way to earn some money, learn the law and to attract attention from which some work might flow. Now another
Scot without family or other connections had recently done exactly that. That was
John Campbell who by dint of hard work and political skill had risen to become
Chief Justice in 1850 and then to the highest judicial office in the realm, that of Lord High Chancellor, in 1859. After gaining a start in the chambers of the celebrated
special pleader, Tidd, the ambitious and driven Campbell had reported on Nisi Prius
decisions of Lord Ellenborough. Campbell’s private letters reveal that
reporting was part of his strategy for personal advancement in which his English detractors said that he had no equal. Campbell later became significant in Colin Blackburn’s career as we’ll see in a moment. Now for his part, between 1852 and 1859, Campbell collaborated with Thomas
Flower Ellis, a barrister in the Middle Temple, to produce reports on the decision of the Court of
Queen’s Bench and the Exchequer Chamber in error. The identity of those Courts becomes important. It’s said that Blackburn’s habit was to sit at the back row of the old Court of Queen’s Bench and listen. Manson observes that “few ever thought
that the young Scotchman, who day-by-day seated himself in the background the Old Court
of Queen’s Bench at Westminster was one day to become one of the greatest
judicial lights of the nineteenth century. Now it seems by the time of his reporting
in the 1850’s Blackburn had developed a modest
practice. Serjeant Ballantine his contemporary says this, and I quote, Serjeant Ballantine says this ‘Latterly, before promoted to the Bench, he was entrusted as junior with heavy
mercantile causes, but never with the lead; and, except amongst the solicitors who
thus had experience of him, it could not be said that he had obtained reputation
even as a lawyer.’ And Sir John Hollams who wrote a book again of his memoirs
from a solicitor tells a story about Lord Blackburn which reflects rather badly on his skill as an advocate before a jury. Now contemporary account, written in the Economist upon his elevation to the bench, said as follows, I quote this is about 1859, he said, ‘Mr Blackburn was a man unknown to fame. He was not great with a jury. No attorney would have chosen him to conduct a cause which required a large person, cunning advocacy, and humorous or ferocious eloquence. His circuit knew little of him. But there were places where he was known. Though he had a large and increasing practice of the most important and valuable kind in the city of London, he
was better known to judges than to juries… Now we venture to say of Blackburn, that in a difficult argument before the full court he deservedly commanded the highest respect of every judge, and his services were eagerly sought for… and they said he’s not only a sound but a
systematic lawyer. If anything, perhaps a little too much so; a little too hard and Scotch in his argument…’ And one sees of the contemporary accounts the continual reference to his being Scottish and what that was meant to imply. Now in these
circumstances, the odds were, with the practice he had, the lack of any
connections of any kind, of the fact that he had he was largely unknown, the odds
were that he would continue as quietly as he had never taking silk and retiring as an unknown barrister the end of the century. But as we’ve seen the Chief Justice of
the Queen’s Bench between 1850 and 1859 was Lord Campbell another Scot who also was
a man of no connections of any kind. Ballantine recorded that ‘greatly are Lord
Campbell’s judgments indebted to Blackburn’s clear and profound appreciation of the law.’ Ballantine implies that it was reporting by Blackburn which burnish the reputation
of Lord Campbell. Now we don’t know but through his work as a reporter Blackburn
must have become known to Campbell and we may safely assume that Campbell knew
also of their shared heritage of Scots of modest antecedents, seeking success by
dint of hard work in the class-conscious and highly competitive world
of the English bar. Now on the 18th of June 1859 Queen Victoria promoted Campbell from the office of Chief
Justice of the Court of Queen’s Bench as we saw earlier to Lord High Chancellor even though he was than 79 years of age, he suggested the time that Alexander Cockburn who we mentioned earlier, was in fact more eligible but he’s colourful private life was of a kind that Queen Victoria was unimpressed with and she thought that Lord Campbell would be more suitable. Now we might pause to note that this month of June in 1859 was an important one also for a far flung corner of the Empire. Because a few weeks earlier on the the 6th of June 1859, the Queen Victoria
had issued Letters Patent creating a new colony in a place called Queensland. Now later the same month, later in June, Lord Campbell exercised his new power to
appoint puisne judges. At that point the Lord Chancellor could appoint puisne judges. What had happened is that Erle had moved from the Court of Queen’s Bench to become Chief
Justice the Common Pleas replacing Sir Alexander Cockburn who had moved to become Chief Justice of the Court of Queen’s Bench when Campbell went up to become
Lord Chancellor, this left a hole or a vacancy in the Court of Queen’s Bench. Now to understand the furore that erupted when Campbell appointed Colin Blackburn to the vacancy,
it’s necessary to say something of the realities attending the appointment
of the Queen’s Judges at this time. And we must remember that there were far fewer judges at this time then there are now. The orthodox view was that those elevated to the high office of one of her Majesty’s Judges would be, a busy and
successful practitioner who was well known to his Circuit as well as being
well-known in Westminster Hall. If not a Serjeant the man would at least be a Queen’s Counsel. An exception had been made for the Irishman Willes, who we mentioned earlier, he wore a stuff gown, but when appointed a Justice of the Common Pleas in 1855, Willes was well-known and successful. He was also
reputed to be the most learned man in the whole of England, having read, it was
said, every law report from the Year Books onward and having memorised many many of the forms of action that we mentioned earlier. In addition, those appointed to
judicial office at this time would very often have a seat in Parliament and if
they didn’t they would be very well connected with the government of the day.
And indeed there were no less than seventy five lawyers in Parliament in 1853.
It mattered not that the seats they occupy were obtained by the bribery of the
electors. Access to the House of Commons permitted a rising barrister to becoming known to the government of the day to the Attorney-General and Solicitor-General
who could be expected to be appointed to the office of Lord Chief Justice and Chief Justice of the Common Pleas respectively. They also would become known to the Lord Chancellor who as we saw has the power to appoint judges. Now by the standards of the day what Lord Campbell should have done was
to appoint a well-known and Whig Queen’s Counsel to fill the vacancy at the Court
of Queen’s Bench. And at the very least he was expected to appoint a barrister who
enjoyed a level of fame. Colin Blackburn satisfied none of these
criteria. He had not taken silk, he had no special reputation as an advocate,
among the bar in London and the Northern Circuit where he practiced he was
largely unknown. Worst of all perhaps he had no seat in parliament and seemed to
have possessed no political connections at all. When it became known that Lord Campbell had appointed, of all people, an unknown Scotsman called Blackburn there was an uproar. Four days after the appointment The Law Times recorded as follows, and I
quote, ‘Mr Colin Blackburn is the new judge. The profession seems to know
little of him but that he is a member of the Northern Circuit and Liverpool
Sessions. On the face of it the appointment is inexplicable…’
The bemusement ran to satire. Manson quotes the following commentary in the papers. This is this what the papers were saying, ‘everybody has been going around town asking his neighbour, ‘who is Mr Colin Blackburn?’ The very ushers in the courts shake their heads and tell you they ‘never heard of such a party.’ Further discussion of the appointment in the press, The Law Times, is reproduced in the handout on the second
page and you’ll see there the evident contemporary unease about the use of the
power to appoint judges as a rewards for political service and the author of that
article commends Campbell for making an appointment without regard for politics.
Now Campbell’s own diary which has been recorded and is published recalls the
3rd of July as follows, he says this, ‘I’ve already got into
great disgrace by disposing of my judicial patronage on the principal detur digniori. Having occasion for a new judge,’ he means merit, ‘to succeed Erle made Chief Justice of the Common Pleas, I appointed Blackburn, the fittest man in
Westminster Hall, although wearing a stuff gown, whereas and this is interesting, whereas several Whig Queen’s Counsel, MP’s, we’re considering
which of them would be the man, not dreaming that they would all be passed over. They
got me well abused in The Times and other newspapers but Lyndhurst has
defended me gallantly in the House of Lords.’ In the written paper I’ve gone
into more of the abuse that was heaped upon him, some of which is quite
extraordinary. Lord Lyndhurst defence that he mentions in the House of Lords
was also reported in the papers. So Lyndhurst said this to the House of Lords trying to quell the
furore, Lord Lyndhurst said this, ‘I’ve been asked,’ I can’t do the accent. ‘I’ve been asked who is Mr Blackburn and a
journal who takes us to task by turns has asked somewhat indignantly “Who is Mr Blackburn? Who is Mr Blackburn?” I take leave to answer he is a very learned person,
a very sound lawyer, an admirable arguer of a law case and eminently fitted for a seat on the bench.’ Now Lord Campbell is reported to have responded to Lord
Lyndhurst in terms that reveal, I suggest, the unease that he must have felt that
in fact this was nepotism on his part. He says this to the House of Lords as reported in the press. This is Campbell. ‘I knew nothing of Mr Blackburn except what I knew from having seen him in practice
in the court over which I presided.’ He says, ‘I have no private intimacy and I
declare on my word of honour, I don’t know of which side he is in politics but I have
known him as a sound, good and able lawyer, one of the ablest in Westminster
Hall. My only object was to appoint the person I thought would best discharge
the duties of a judge in the Court of Queen’s Bench.’ And Lord Campbell
concluded his speech with words that turned out to be prescient. He said this.
‘I’m convinced the more Mr Justice Blackburn’s qualities and abilities become
known the more will his appointment be approved’. it was not long before the
wisdom of Lord Campbell’s choice became obvious to everybody. Blackburn quickly began to be known for
his patience, carefulness and fairness. This combined with his profound learning
caused the judge to become highly regarded by those who appeared before
him. Serjeant Ballantine wrote that there was
no judge before whom he would have sooner practiced. Only nine years after
his elevation amidst the storm, The Law Journal was describing Mr Justice Blackburn as
one of the greatest judicial lights of the 19th century. A story was told about him soon after his elevation that is said to have attested to his scrupulousness in doing what he perceived to be his duty. It’s said that he was trying, not long after
his elevations to the bench, an action in which damages was sought for an injury to the
plaintiff, which had caused him the loss of an eye. The plaintiff’s counsel dwelt forcibly
upon the seriousness of the injury as blighting the plaintiff’s whole future
career. ‘I have lost the sight of an eye, Mr X,’ said the judge, interposing, ‘and
it has not blighted my career, as you see.’ The jury were much impressed by the
judges remark it is said and the damages they awarded as a consequence were
trifling. Blackburn was conscience-stricken. He thought it over and the next day enclosed the plaintiff a cheque for £50. He went on to sit as puisne Judge for
seventeen years. Initially as a Judge of the Queen’s Bench and then in the High Court
following its creation in 1875. Now of course in 1876 the Appellate Jurisdiction Act
reinforced the House of Lords with two judicial life Peers. And the first to be
appointed was none other than Colin Blackburn in 1876. He became the first Lord of Appeal in the ordinary. In
stark contrast with what happened when he was appointed 17 years ago, the
appointment was widely welcomed. By this time Lord Blackburn had come to be regarded as a glittering adornment to the court. His 17 years as a judge of first
instance and his 10 years as a member of the House of Lords saw probably two cases that were regarded at the time as having importance above all others. Neither was one of the cases that every law student in England and Australia would read and which we would
today regard as the legacy of Lord Blackburn. Cases likes Smith v Hughes, Rylands v Fletcher, Taylor v Caldwell. Both of these decisions attracted public
attention at the time were, it seems to me, in a sense a product of the fault lines through the British Empire at this time. Both cases and the events that gave rise to them were however largely forgotten today. I’ll mention them briefly and then go on to the cases that he decided that are regarded as important today. The first of the cases
that drew Lord Blackburn to the attention of the public and which were regarded as famous at the time, was a trial in 1867 for Justice Blackburn and
Mellor of the Manchester Fenians or Manchester Martyrs. These were Irishmen who been charged with the killing of an English police officer in
September 1867 during the rescue of two prominent American Fenians who were
being transported in a horse-drawn coach from the courthouse to jail. During the
so called rescue of these two men an English policeman was shot and killed. Now
despite well-publicised doubts about the reliability of the testimony against the
three Irishmen, they were convicted of the killing and subsequently hanged from
the walls of Salford jail on the morning of November 1867. The execution took place in front
of a crowd of what was said to be 8 000 – 10 000 people. And after detachments of the
72nd Highlanders and the Eight Hussars had been deployed around the jail, supported by several
thousand police. The trial and execution attracted enormous attention in England,
Ireland and America and occurred against a background of fear of imminent revolution against English rule in Ireland. Interestingly the same dynamic was behind the second
trial that Lord Blackburn became thrust in the public eye in respect of. Perhaps was
the strength of his performance in providing over this very famous trial in
Manchester Martyrs, Blackburn was soon residing in a second matter of vital
importance to the Victorian public and to the British Empire. This was the so called
Jamaica affair, another case that as I say seems to me to have arisen from
the stresses and fault lines of the British Empire. I’ll provide a very brief summary. After
increasing tensions between black farmers and the minority white government in Jamaica, in October 1865 a crowd of black men and women led by black Baptist preacher, Paul Bogle, marched to the Morant Bay courthouse. When the crowd refused to disperse after the German
Chief Magistrate had read the Riot Act, the local militia opened fire on the
crowd. The crowd fell back but then surged forward setting fire to the courthouse and when the occupants tried to flee they were killed by the mob.
Those killed included the Chief Magistrate and 17 other court officers
and other persons. Many of them but not all, white. The man in charge of the
colony of Jamaica at the time was Governor Eyre and he declared martial law over the area of Morant Bay and he quickly took control of it and the surrounding area with a small
force of regular soldiers. What happened next prompted one of the most acute political
controversies in the second half of 19th century Britain and gave rise to years of
bitter litigation in England. After the apparent uprising had been suppressed,
Governor Eyre convened a series of courts martial in
the area that he had declared martial law over. Again and again sentences of
death were pronounced by military courts followed by summary executions. Paul
Bogle, a Baptist preacher, was hanged alongside with other alleged ringleaders. Notwithstanding that many of them had not been there. In addition to those who were killed by these judicial executions, several hundred other black men and women with tortured and
imprisoned without trial. In the weeks following the riot at the courthouse it is
thought that 439 black Jamaicans were killed
and some 600 with flogged often with extreme cruelty. All of the victims of
this reign of terror were British subjects. When the government in London refused to
prosecute Governor Eyre and the soldiers responsible, in December 1865 John Stuart
Mill other liberals supported by Christian
activists formed a committee for the purpose of raising money with a view to
prosecuting Eyre and the military commanders for murder and other alleged crimes. They attempted to do this for the next three years. Now the high point of the controversies
as it affected Justice Blackburn came on the eight of June 1868 at the commencement of a new session of the Court of Queen’s Bench. So his Lordship had been a judge for about nine years at this point. In court was Chief Justice
Coburn, who we spoke of earlier, Mr Justice Blackburn and Justice Mellor. Now a rumor had spread through the bar and the Court was packed. It was supposed to be the
opening of a new session of the court. Now those who fill the courthouse were
not to be disappointed. Instead of attending to the business of
the day the Chief Justice began to make a prepared speech attacking the conduct
of Justice Blackburn, his brother, in connection with Blackburn’s direction to
the grand jury delivered in the case of the Queen v Eyre six days earlier. In
that direction the grand jury Blackburn had explained the law in terms
supportive of Governor Eyre having a statutory immunity from his actions
under the Jamaican legislation. This led to the grand jury dismissing the bill
against Governor Eyre. The Chief Justice clearly thought this direction that Blackburn had given
contradicted his own direction to a different grand jury, which had been empaneled to hear another charge instigated by the Jamaican committee this time not against Eyre but the military commanders Nelson and Brand. Blackburn was forced
to sit in silence while he was publicly admonished by his Chief Justice. In
particular the Chief Justice told the Court that Blackburn had been mistaken
when he told the grand jury six days earlier that the other members of the
Court of Queen’s Bench agreed with the terms of the charges that had been
pronounced.The Chief Justice went on remarkably to detail other areas in the
terms of the charge that Blackburn had pronounced and attempted to demonstrate
why it was wrong. Now Blackburn attempted to defend himself it is reported
by attempting to explain himself. But the Chief Justice is said to have shaken his head and said no you still don’t understand. Afterwards the Chief Justice wrote to
another judge, Justice Lush, to obtain corroborations of his own version of events and published the letters to the press. Unsurprisingly this behavior caused an uproar. The Imperial Review described what had occurred as ‘the greatest scandal that
has arisen in the Courts since the trial of the seven bishops.’ The event in truth
marked another battleground it seems to me, in the war that was being raged through the
courts between liberals on the other hand and conservatives on the other, over
the proper province of the rule of law in the British Empire. It does not seem
however, that any attention was paid at the time to the circumstance that
Blackburn’s own father had made his fortune in Jamaica or how if at all that
might have affected his assessment of the questions arising in the case, as to
the lawfulness of Governor Eyre’s actions. Now while these events were momentous at the time they have since been consigned to history and there a forgotten tale, alive for today’s historians but dead for its lawyers. It seems to me it tells us something about
the development of our law. We not that the charge against Blackburn was followed by yet another
piece of litigation that attracted much less Victorian attention between public and
politicians. This was a civil case brought by Alexander Phillips, a black
British subject resident in Jamaica who sought £10 000 damages from Eyre and the military commanders Nelson and Brand. This action was also was funded by the Jamaican
committee. The newspapers gave this much less attention, this was the very end of
the affair. In 1870 Phillips appealed. Successive appeals were finally
dismissed. The judgment of the Court of Exchequer Chamber was given by Mr
Justice Willes, who we mentioned earlier. The case was reported as Phillips v Eyre. That name may be familiar to some of you. It has since become a key decision in the conflict of
laws and the rule it established is for conduct in foreign place to be actionable
as a tort in an English Court the conduct must be wrongful had it occurred in England and
also not justified in the place where it occurred. I want to discuss a little more about this disjunction between the cases that were
important at the time and those which seem to be important today. When we
look at contemporary accounts of Lord Blackburn’s decisions we don’t see any
of the cases, we see very few of the cases that are now regarded as fundamental and there
are many lists that can be found of so-called important cases. And in
contrast if we look at contemporary texts we can find many books devoted to decisions of Lord Blackburn. For example one of the chapters of a book called Landmark
Case in Restitution published only in 2006, has a chapter, a whole chapter, devoted to
the decision in Erlanger v New Sombrero Phosphate Company. Lord Blackburn wrote the leading decision and it’s now the leading statement of the principles concerning when rescission will be denied
because restitutio in integrum is impossible. To other decisions in which Blackburn played an
important part are given a chapter each in another book called Landmark Cases in the Law of Contract, published quite
recently. Those cases are Taylor v Caldwell to do with frustration and Foakes v Beer consumed with consideration. And Catherine
Macmillan’s very good book Mistakes in Contract Law
contains a very long discussion of Justice Blackburn’s decision in Kennedy v Panama, New Zealand and Australian Royal Mail Company. Royal Mail Company. Chapter eight, to go on, of the book Leading Cases of the Common
Law is devoted to Rylands v Fletcher for which Justice Blackburn wrote the key opinion. And of course we know many textbooks and courts regularly cite Blackburn’s opinions in
cases like Tweddle v Atkinson on
privity, Appleby v Myers on fixtures and entire agreements, Smith v Hughes on mistake and many other cases their regarded as key or even canonical
decisions in the private law. None of these at the time attracted any attention at all. Briefly in terms of cases that really matter. Smith v Hughes perhaps was of particular importance, because when Justice Blackburn held that whatever may be the case in the court of morals there is no legal obligation on the vendor to
inform the purchaser that he is under a mistake, not induced by the act of the vendor, when he said that. he probably helped to foreclose the possibility that English
law might come to recognise some general duty of good faith in contracting.
Another very important decision of Lord Blackburn I think, is Mackay v Dick (1881)
which provides the basis for the important modern rule when something has to be
done by one contracting party to enable the other to have the benefit of the agreement that would ordinarily be
implied into the agreement of promise that thing will be done. It’s the equivalent of Chief Justice Griffith’s decision in Butt v McDonald. Lord Blackburn’s reasons in Scarfe v Jardine continue to be relied upon by the High Court of Australia today about the law of election. His decision in Clough v The North and Western Railway Co is now a classic statement of the law governing the affirmation of voidable contracts and we could produce more and more examples. None of these cases seem to have generated much interest at the time and they largely omitted from those lists I mentioned,
contemporary lists, of important cases that he was involved in. It seems to me
this observation, this disjunction reveals a peculiar feature of the common law. The
features and it’s rather obvious, is that the relative importance of decisions to
the long-term development of the law is very often unknown when the case is first heard and determined. What excites public attention or the attention of lawyers at
the time may turn out to be only of fleeting importance. This perspective of time,
allows us to try and understand one other, one other question, which is this –
Why Lord Blackburn as opposed to, for example Sir Alexander
Cockburn, Bramwell, or Willes? Why have his decisions endured? And we should also
recall that Cockburn and Bramwell were far more famous than Lord Blackburn as
barristers and Willes was said to have been the most learned man in England, the
most learned lawyer in England at the time. I’ll venture three observations as to why
Blackburn above all the others has endured. Firstly his work ethic is worth
noticing. The early scholar and New York attorney Van Vechten Veeder describes the
volume of Blackburn’s work as immense. He calculates that Lord Blackburn wrote the decision in about 600 cases in reports and of those about a quarter of them
he wrote the unanimous judgment of the Court and he observes that in the whole of the 19th century the only judge who came near to that output was Baron Parke who was in the first half of the
century. Secondly it seems to me this his very
logical mind and his clarity of expression, coupled with his obvious
mastery of what the law was and this was remarked at the time it being said of him, I quote ‘every conclusion is worked out with the hard headed and closely knit logic of his
race.’ But in addition to his work ethic his logical rigour and his technical skill,
it seems to me that what marked Blackburn out in his peculiar mastery of the law
and that explains why his decisions have endured, is his evident interest in trying to
get at the law’s underlying principles and his willingness to expand and develop those
principles. A Professor Cornish has said and I quote, ‘his contribution was most
telling when the issue was one of fundamental principle lying beneath the
level of the evidently political,’ and Fifoot says that Blackburn and Willes ‘were creative minds in a creative age’ and that willingness to try and get at the underlying principle and
state it and develop it is seen in many of the cases that are now regarded as
fundamental. One sees it in Rylands v Fletcher, the principles of rescission in Erlanger’s case, mistake in Kennedy’s case and frustration in Taylor v Caldwell. I
think an argument could probably be made that Blackburn’s interest in getting at and
making sense of the law’s underlying framework of principle is allied to his
evident interest in civilian sources. That interest is very much on display on that book on sale that we were speaking of earlier. Many pages of which were looking at civilian sources. But civilian learning also comes through very strongly in his Lordship’s judgments. The most well-known is Kennedy v The Panama
Steamship Company where he cites Ulpian. But it’s possible to see civilian
learning in Tyler v Caldwell, Smith v Hughes and other cases which really have become of fundamental importance. It seems to me though that it would be an error to think that
Colin Blackburn’s contribution would have been similar had he been born in say
1713 or 1913 and that really it’s just the fact that he was a man of particular
genius that explains his enduring quality. It seems to me with the benefit
of hindsight, Blackburn’s timing was of critical importance. We’ve already noticed that seven years before his appointment the
old forms of actions were swept away by The Reform Acts of 1852 and that this paved the way for new ways of thinking and of course at the other end of his career he
was sitting when the Judicature reforms came in, reforming the courts including the fused administration of law and equity. Side by side with these institutional changes they were
obviously other important developments that help to explain why the 19th
century and particularly the second half was so important. We can think of a number of things, the
companies legislation upon which all British and Australian companies acts are now based was enacted in 1862, there was the vast private wealth that was generated
by an empire which centered in London and that combined with the companies
legislation generated vast amounts of litigation in the 1860s and
70s involving companies. There was the advent of the railways in the late
1830s, huge investments in canals, dams, sewage and other public and
private infrastructure often pursuant of private bill legislation and other ways of
economic activity. All of this external change outside the courts
generated the conditions for large amounts of litigation that had never been
seen before and raised legal problems of a kind that were entirely novel. Now after 17 years as a judge of the Queen’s Bench and the High Court and 10 years in the House of Lords
Blackburn retired as a judge in 1886, he was 73. Now at that time judges were appointed for life and there was no requirement for him to retire when he did, when many judges worked long after the age of 73 and a number died, as it was said, ‘in
harness.’ Lord Campbell being one. The Law Journal the time observed that
he retired owing to the state of his health and Manson said, and I quote, ‘he
retired a victim to the sad disease which often attacks the strongest of brains.’ Precisely what his illness was remains unclear. In a letter from Pollock to Homes many years later, Pollock reports that when retiring Blackburn said, ‘Damn the Law’ and
read nothing but French novels. Whether that’s true we don’t know nor do we know
how Colin Blackburn spent his remaining 10 years. He never married. Presumably his final years were indeed
spent reading French novels up at Doonholm, a mansion house that he’d purchased
in the middle of the 1800s and which, like his childhood home, sat near the banks of a
Scottish river: in this case the river Doon in rural Ayrshire. At the very end
of the century, on the 8 January 1896, Colin Blackburn died at Doonholm. The obituaries that flowed were effusive. The Harvard Law Review stated that ‘the greatest English common law Judge of recent years has died,’ before stating that ‘Blackburn’s judicial opinions ranked among the very best of
the time.’ Soon after his death, Manson’s book on judges of the Victoria era said ‘at the time of his retirement Lord Blackburn was unquestionably esteemed,’ beautiful Victorian language, ‘unquestionably esteemed the highest exponent of the principles our common law,’ which he is said to have provided ‘luminous exposition’ and that we here tonight
in Queensland reflecting on Lord Blackburn’s life and work a 119 years after his passing near the quiet banks of the river Doon,
far away in rural Scotland, seems to me the least testament to a
remarkable mind and a remarkable man. Thank you. (Applause) Well it’s my pleasure now to formally thank Dr O’Sullivan for his paper. It’s my pleasure not merely because the paper reveals a Scot prevailing despite Sassenach prejudice but because the paper, as I said, which you’ve heard much of in that speech, draws together the strands of a life which touched not only legal scholarship and personality of the subject but also draws together the relevant influence of the government, empire, politics and society at the time. The
paper itself will be published, together with a video on the library’s website and
on YouTube. I think there’s some copies likely to be outside and you will agree, I’m sure, from what you have already heard, that it is a work of scholarship. Can I just mention a couple of things which Dominic has encouraged me to mention. The first is on the question
whether Lord Campbell, another successful Scot, really showed some undue favouritism in appointing Blackburn. In Charles Kingston’s Famous Judges and Famous
Trials, Lord Campbell is said to have thought highly of his friend’s abilities, if accurate it may suggest that it wasn’t just scholarship that got him the job. Also in the same book there’s an interesting description, there’s quite a few descriptions of Blackburn around, you
heard one of them earlier. This is different but equally interesting, he’s said to have had ‘a strong face and a determined expression, a harsh voice that revealed his Scottish birth, a nervous horror of female witnesses and a half ironic consciousness of the intellectual
inferiority of the barristers who practiced before him. None of this is similar to anything that
we see today, of course. Also it may be that those qualities didn’t endear him
to some of his fellow judges. In a book called Jottings of an Old Solicitor published
in 1906, Sir John Hollams attributes some words to Lord Bramwell. It is said
that Lord Bramwell was fond of describing a conversation which took place between
between him and Blackburn with reference to the dinner to be given in honour of
Bramwell’s retirement. Lord Bramwell was not only an eminent judge but he was a popular one. Blackburn was also an eminent judge but it is said he was not universally popular. Lord Bramwell said that on the day of the dinner he happened to meet Lord Blackburn. He, that’s Lord Blackburn, said I’m not coming to your dinner, Bramwell. Lord Bramwell said I did not suppose you were. Blackburn said, no I do not like such things, when I retire I shall do so in vacation. Lord Bramwell responded, my dear Blackburn, it will be
a very unnecessary precaution. We are indebted to Dr O’Sullivan for his paper and I will ask you again to thank him in the usual way. And like a rabbit out of a hat… I should also mention the upcoming events include, importantly, the Supreme Court Oration, on the 29th of this month at 5:15pm here which will be presented by the Right Honourable the Lord Judge – Magna Carta: Destiny or Accident? And also another treat in store, on Thursday the 15th of October another Selden Society paper, in this case The Honourable Justice Peter Applegarth on Lord Atkin. Now you’re all invited to enjoy refreshments in the foyer. Thank
you. (Applause).

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