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Mr Justice McCardie (1869–1933): Rebel, Reformer, and Rogue Judge. By Antony Lentin. [ Newcastle upon Tyne: Cambridge Scholars Publishing, 2016. xvii + 202 pp. Hardback £61.99. ISBN 978-1-44389-780-8.]
This book is an excellent example of the well-known adage that history is best studied through biography. The historical emphasis of the book is twofold: primarily it sheds some interesting light on the turbulent public life of Henry Albert McCardie, a controversial and, perhaps, too clever and over proud High Court judge in the inter-war years. The subplot tells us about the complications of his private life, revealing some fascinating aspects of a bygone age of English social history.
The conventional view is and always has been that Her Majesty's judges should not court publicity and, in particular, as first instance resolvers of disputes and interpreters of the law, should refrain from judicial activism or judicial creativity. There can be no doubt that McCardie was a remarkable exception to this view. His commitment to what was, in its time, the unconventional, on a wide range of social issues, was unswerving and it caused grave damage to his reputation amongst his fellow judges and the contemporary legal, religious and political establishments.
On and off the bench McCardie expressed strong views on what he took to be the antiquated state of the divorce laws. He also made known his views on abortion, on contraception and eugenics. There are many examples, well identified by the author, of McCardie being ahead of his time as a critic of applicable laws which had long since been overtaken by changing values. In many cases legislation subsequently intervened to right a variety of the wrongs which had been subjected to McCardie's withering criticisms. The chapter devoted to his famous judgment in the case of Place v Searle [1932] 2 K.B. 497 is a good example.
This was an action taken by the aggrieved husband, Mr. Place, against Dr. Searle who, it was alleged, had enticed Mrs. Place from the matrimonial home depriving Mr. Place of his wife's “consortium”, a quaint expression meaning the husband's legal right to the “wifely comfort and society” of his spouse. McCardie left it to the jury to decide whether there was a case for Dr. Searle to answer but...