The Right Honourable Sir Francis H. D. Bell, P.C., G.C.M.G., K.C.,: His Life and Times
Chapter VII. — Sixty Years at the Bar
Sixty Years at the Bar.
He commences practice—Twice offered a Judgeship—The Hall trial—His Privy Council cases—Tributes from Lord Haldane and Lord Macnaghten—Law Reports—His services to the Legal profession.
We must now resume the story at the point where Bell returned from England at the end of 1874 and forth-with began practice in partnership with Mr. C. B. Izard. No young lawyer in New Zealand was ever launched on his career under more favourable conditions. He had inherited many of his father's brilliant qualities, and had the benefit of his powerful influence in business and political circles. He had made the most of his exceptional opportunities in England, and during his stay there had won for himself a wide circle of friends.
It is not surprising, therefore, that within a few years he had made such progress in his profession that in 1878, at the age of twenty-seven, he was appointed Crown Solicitor in Wellington. With the exception of the period 1893-1896, during which he was a member of the House of Representatives, he held the office of Crown Solicitor up till 1910 when the work was transferred to the Crown Law Office.
A recent writer has said that while the practising lawyer probably leads a life more interesting than that of any other profession or calling, the story of his practice can only be made of popular interest if it discloses secrets which he ought not to make public. Of course it is possible sometimes to relate anecdotes of sensational trials in which the advocate had been engaged, but otherwise the record is apt to be vapid and tedious.
Probably, therefore, some random notes culled from various sources will convey to the reader a picture of Bell's progress at the Bar better than any attempt to give details of the more important cases in which he took part. Such details are chiefly of technical interest to lawyers, and can be found for the most part in the Law Reports.
The letters of Sir Dillon Bell, written from England while he was Agent-General, furnish us with interesting glimpses of his son's growing reputation. For example, in 1881 Bell was engaged for the Crown in the heavy and protracted litigation that arose from Vogel's Railway and Public Works contracts with the English firm of Brogdens. Frequent references to this case occurred in Dillon Bell's letters, but the following extract is of historical interest for its side-light on Whitaker, who was the mainstay of so many early New Zealand Ministries. "In a letter I had lately from Whitaker he spoke in terms quite unusual for him of your work in the Brogden case. He is always extremely reserved in any praise, partly from ancient-wise professional caution, partly from an ingrained cynicism. (I have often thought in a life-long intimacy with him how odd it was that a cynicism so complete as his should page 56be so good natured and chirpy.) He may have gone out of his way to please me in saying as much as he did of you, but still it was clear that both as lawyer and politician he put an immense value on all you had done. I always find that victory only comes to those who take trouble to know their facts, but invariably comes to them."
In the same year (1881) Bell had already become so prominent a figure that he was being pressed to stand for Parliament. His father awaited his decision with eager interest and wrote:
"My wishes are all for your being there, my judgment all against it just as yours—both wishes and judgment—seem to be. Looking at the fact that you are 'à tout hasard 'quite 'à l'abri' from the jade Fortune I should be glad if your decision is to make a plunge into politics. I say to myself as against the warnings of prudence—who ever is to succeed us founders if our sons do not ? Who is to have charge of the public life and keep up the tone? Some things we all owe to country in spite of Mrs. Prudence."
Bell declined the request, and nearly ten years were to elapse before he stood for Parliament. Further proof of his high standing in his profession is shown by the fact that during the 'eighties he was twice offered a Judgeship.
Again, many years later, when Sir John Findlay as Attorney-General proposed to set up a permanent Court of Appeal consisting of three Judges, his intention was to secure the services of Bell as one of the members of page 57this court.* For various reasons, however, although the legislation was drafted the plan was abandoned.
"What a curious thing it was," writes Dillon Bell, "that Fenton, who used to be the life and soul of our fishing and boating days when you were a child, should owe to you the salvation of his good name, Stout, who used to hear the boys their spelling, the Premier, on his defence of that memorandum, and then you, a power in the country now." One of the most famous criminal trials in New Zealand was known as the Hall case. Hall had been convicted of an attempt to murder his wife by arsenic poisoning and was then tried for the murder of his father-in-law by the same means. The legal problem reserved for argument was whether the fact of the attempt to poison his wife could be adduced as evidence on the trial for the murder of his father-in-law. Chapman and Denniston (both later made Judges) were appearing for the prisoner, but Sir John Hall, who was a relative of the prisoner, wanted Bell to argue the point. At this stage a unique and curious question of procedure arose.
"I was called," said Bell, "to the English Bar before Denniston, but Denniston was called to the New Zealand Bar before me. The prisoner, Hall, wanted Denniston to follow Chapman, and Sir John Hall page 58wanted me, and the practice of the Court of Appeal was to hear two counsel only. The Court of Appeal went to Christchurch, probably for the only time to hear an appeal. Prendergast, C.J., was asked by us to decide which of us was entitled to precedence, and promised to consider the knotty point and let us know. When the Court opened he said: 'The Court will hear three counsel for the prisoner on this occasion.' So a question which has not yet been decided by authority in New Zealand is whether precedence follows the call in New Zealand or the call in England. In the Hall case the Judge dodged it."
It should be added that the evidence was held to be inadmissible, and, as is well known, a new rule of evidence was provided for by legislation to get over this difficulty for the future.
Bell's pre-eminence as a banco lawyer was unquestioned, and the fact that he had made a special study of Native law led to his being engaged in many important cases dealing with titles to Native lands, Native rights to fisheries and the beds of lakes, and similar problems. Russell of Killowen said to Mrs. Asquith: "Before a cultured tribunal your husband is the first advocate, we have but he cannot play down to a jury." This was true also of Bell, who in addressing juries found it difficult to adopt the popular style of appeal required for mastery in that sphere of advocacy. For example, an important political libel case occurred in 1911, in which Massey while Leader of the Opposition sued the New Zealand Times for stating that he had "hitched his waggon to a lie." As political feeling ran high, the case was bitterly contested. Bell appeared for page 59Massey, but was unsuccessful. After the trial one of the Judges told me that Bell's artillery had been too heavy for the jury and that he had been out-manoeuvred by the light artillery of his opponent.
"Bell's knowledge of law was profound," writes his old friend, Mr. A. B. Campbell, of Napier. "In my opinion, in my day (and I am eighty-two years of age), he never had a superior in a Banco argument. As for his legal opinions, they were superb, and my firm always treated them as having the force of a judgment of the House of Lords. On one occasion where a large sum was involved and Bell had given an opinion adverse to my client it was decided to take a second opinion. This confirmed Bell's view. 'Of course you were right to take a second opinion,' wrote Bell. 'It is a satisfaction not a derogation to me to have any opinion of mine submitted to another for criticism and discussion.' I don't say he was never wrong," adds Mr. Campbell, "but he was so seldom wrong as to justify the view that he was always right. To say this is hardly to utter a paradox as the long list of overruled cases, long acted upon as final pronouncements, warrants me in saying."
Bell frequently appeared in cases before the Privy Council, and the present Chief Justice, Sir Michael Myers, who was his partner for many years, has put on record the remarkable fact that Bell advised more successful appeals to the Privy Council than most of the profession added together. "So vast a storehouse," he said, " of knowledge and experience could never again exist in this country."page 60
Lord Haldane, with whom Bell appeared on several occasions in the Privy Council, had a high opinion of Bell's ability.
"The real origin of the victories," he writes to Bell in 1903, "in the Assets case and in Riddiford's case was your own work and presence here. Of this I have no doubt. Lord Macnaghten said to me after your argument in Riddiford's case, 'Bell is an admirable advocate, convincing because he is fair and never misuses his knowledge,' and that remark was sincere. It has been a great pleasure to be associated with you in these cases."
After Haldane became Lord Chancellor in 1912, he wrote to Bell:
"I have often recalled our cases together, and the intricacies of New Zealand land legislation through which you piloted me. I am trying to do what I can to strengthen the position of the Judicial Committee. I wish you prosperity in your well deserved position."
(Bell had become Leader of the Legislative Council.) As a matter of interest to the legal profession I have printed as an appendix to this volume a list of the appeals to the Privy Council in cases in which Bell was concerned either in New Zealand Courts or in the Privy Council itself.*
It is not possible within the limits of a general biography to give any adequate record of Bell's many services to the legal profession during his long career.
Towards the end of his career he seldom appeared in Court owing to a degree of deafness which was sufficient to handicap him in hearing and answering the observations of the Judges. But up till the time of his death his legal opinions were still eagerly sought from all parts of New Zealand, and his mental powers remained keen and undiminished even to the last.