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The original publication details are as follows:
Title: Memoir of Sir John Edward Denniston, Judge of the Supreme Court of New Zealand.
Author: Denniston, John Edward, Sir
Published: Gaskell & Co., Christchurch, N.Z., 1926
MEMOIR OF Sir John Edward Denniston
JUDGE OF THE SUPREME COURT OF NEW ZEALAND
GASKELL & CO.
CHRISTCHURCH, N.Z.
1926
CONTENTS
PAGE
Life: 7
compiled from Diaries, by J. Geoffrey Denniston.
Judicial Characteristics: 56
by S. G. Raymond, K.C.
Personal and Literary Characteristics: 82
by W. H. Triggs, Member of the Legislative Council of New Zealand
'•'JOHN EDWARD DENNISTON came of solid Ml West of Scotland stock. His father and grandfather were both Clyde sugarmerchants, at the time when Greenock had an extensive trade in sugar with the West Indies. John Denniston, the grandfather, was a leading merchant of Greenock, and was for many years Provost of the city. He married a daughter of Mr. Fairrie, of Greenock, also in the sugar industry, and brought up a large family with stern Scottish discipline.
Thomas Denniston was the youngest son, born on the 28th of March, 1821. He passed through school at Greenock with distinction, winning the Greek Medal at the High School against Caird (afterwards Professor Caird). He then studied at Glasgow University, but went down without taking a degree. One part of his education —not common in those days—was a trip to the Eastern Mediterranean, including Greece and Turkey. After his marriage in 1844, he lived for a time in and near Glasgow; and then built a large house at Langbank, on the Clyde, not far up-river from Greenock, where he lived on a comfortable scale. He married Helen French Walker, whose life after marriage was centred in her children. Her letters show her to have had an affectionate and cheerful disposition, though worried, as a girl, by anxiety about her religious state and by the care of her sisters after her
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mother’s death. She was 23 when she married, had seven children in eleven years, and died on 17th February, 1855, at the birth of the seventh. Thomas Denniston was a just and conscientious father, and took keen interest in the careers of his sons; though, as was usual with his generation, he was by no means demonstrative.
The eldest of the family were the twins, John Edward—always known as Jack —and Thomas Fairrie, who were born on June 20th, 1845, at Bishopton, Renfrewshire. As often with twins, they divided the gifts. Jack excelled with books and brain-work, Tom was capable with his hands, musical, and artistic. Then came George Lyon, Arthur James, Susan Elizabeth, Helen Agnes, and William John. The name Lyon came from the Walker family; and it was the tradition of the Denniston family that the eldest son should be called John, All the children were born on the Clyde.
Jack Denniston was from his childhood an eager reader. He kept a Shakespeare in a hay-loft and devoured it at every spare moment. Between the years 1854 and 1860 he was at school at Greenock Academy, Glasgow Academy, Blairlodge, and again Greenock Academy. His pride in Blairlodge was shown when fifty years later he was instrumental in getting its name included in the List of the New Zealand Association of Public Schools of Great Britain. He was continuously successful at his school-work, winning the Blairlodge silver medal for Latin, and the Brown gold medal of Greenock Academy for Classics in 1860. He won also a bursary of £5O for four years to Glasgow University, and went up in that year; but in May, 1861, his course there was interrupted.
His father had been carrying on the family's business of sugar-merchants. The great Sugar
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’Change at this time was at Greenock. But his health was worrying him, and he decided to emigrate with his children to New Zealand. In preparation for this, he tried to give his sons a twelvemonths’ training for their new needs. Tom and George were sent to a farm in Ayrshire, and Jack was taken away from the University and sent to work with a carpenter. This was the last kind of work for which he was fitted, and his own account of his attempt to make a table has become a family tradition.
On May the 6th, 1862, Jack. Tom, and George Denniston sailed from Greenock for New Zealand with their father in the Nelson, which he had largely freighted. He travelled “ Cabin,” but the boys were “ Intermediate,” to accustom them to rough quarters. They landed at Dunedin on the 10th of August, and in November the party travelled on foot to Invercargill with a waggon. In Southland their father bought a run, called Hillend. In 1867 he returned to Scotland, sold out his business interests, and brought out the rest of the family, save that Helen remained in Scotland with her aunt, Miss Walker.
Meanwhile Jack had become a clerk in the Post Office, stationed at Invercargill, and later at the Bluff. In 1865 he joined the Bank of New South Wales, and was stationed on the West Coast. He tried his hand at journalism, having been appointed, in August, 1865, Hokitika correspondent of the Canterbury Standard.
The following extracts from these Letters to the “ Standard ” give an idea of the Coast at this time —as Denniston saw it:—
16th July, 1865: Even to one accustomed to the rapid rise of colonial “ cities,” the growth of Hokitika must appear astonishing. Already on the barren sandspit, where not many months
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ago the only habitation was some chance Maori whare, there is a street about a mile in length, with stores, public houses, billiardrooms, concert rooms, skittle alleys—all the necessaries in fact of modern civilisation, while all the comforts of the “ Saut Market ” can be purchased, at not much more than 400 per cent, on Christchurch prices, at stores whose fronts at least would not disgrace that aristocratic city. It can boast of a well-conducted paper, an energetic “ improvement committee,” a police court, and lockups—the last being, however, unfortunately too small for the accommodation of the rowdy portion of the community, so that on the occasion of five men being committed for assaulting the police at a recent scrimmage, the authorities were obliged to resort to the novel expedient of liberating five of the least dangerous of its inmates, in order to find room for their new guests. Except for the trifling danger [of flood] before referred to, the position of the towm seems w r ell chosen, wood and water being plentiful, and the depth of the river allowing vessels to be moored alongside the banks, and saving a heavy expenditure for wharfage accommodation. The greatest drawback to the port is, of course, the bar, which is dangerous at all times, and except with a N.W. wind, impassable to sailing craft, a perfect fleet of which is reported to be lying in Massacre Bay and other harbours along the coast, waiting an opportunity to enter the river. . . . The overland mail is now two days overdue, and fears are entertained of its safety. I am therefore able to add to-day’s casualty to the list, in the shape of the Tiger, a small craft from Nelson, run high and dry on the sandspit.
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At the time of my writing, she is still being knocked about, but from her position the crew will have no difficulty in escaping. Indeed, a peculiarity of the river is the absence of any loss of life from any of the wrecks constantly occurring; all that is required being for people to remain quietly on board until the tide goes out, when they can step on shore having suffered nothing more serious than a ducking.
29th July; . . The wind being fair, though light, crowds poured from Hokitika this afternoon, to watch the vessels trying the bar. The scene was really beautiful. Thirteen vessels were hovering under clouds of canvas, apparently hesitating which should lead the way. At length, one large barque made a dash through the channel—but when in the narrowest spot, the wind died away, and as she hung for a moment in her course, she seemed doomed to add to the firewood on the spit, but a rope having been thrown on shore, a rush was made by the crowd, and the Crest of the Wave fairly run through the channel, and anchored in safety. Meanwhile the Advance, a small vessel from the Grey, had struck heavily and had been driven on shore. The Mary Ann Christina, with timber, made the next attempt, but without better fortune, as she ran on the North Spit, but from her position she will probably be got off safely next tide. In carrying a line to the last vessel, a boat was swamped, but through the exertions of those on shore, the boat with the men holding on by her was got on shore. The rest of the fleet, deterred seemingly by the fate of their comrades, made out to sea, with probably a very unfavourable opinion of the Hokitika bar.
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6th August: . . . The rush to the South, to which I referred last week, has caused less excitement than was anticipated. Nothing definite as to the ground has been obtained — but numbers of men are slipping quietly away, and a good deal of gold is being sent off by private hands. Owing to the peculiar character of tfee diggings here, it is difficult to arrive at the prospects of the various districts without a personal inspection. There are no escorts, and very few of what we may call digging townships, the miners being found in scattered parties all over the country, and in most instances selling their gold in Hokitika. From the Waimea and Kanieri, the two most important centres of the mining population, the yield of gold continues steady in spite of the exodus to the Grey. Although the rush to the latter place has considerably decreased, a good deal is done in conveying provisions, etc., from this place. One gentleman informed me that during a ride from the Grey, he passed in one day 140 pack horses, and nineteen waggons, all from Hokitika. A good deal of gold was brought down last week, and a new gully has been opened, from which I have been informed that a party of three obtained 771bs. weight for eight days’ work.
26th August. . . . Building has been going on briskly, and the number of new fronts which are being stuck on iron and calico erections in Revell Street is very remarkable. We seem to he making ourselves tidy to welcome the crowd of newcomers expected. The uncertain tenure under which the present occupants hold their sections is an undoubted obstacle to the erection of good substantial buildings, and there is much anxiety felt on all sides to have
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the ground in and around the township sold
. . . We have now two ministers belonging to the Methodist and Independent persuasions at work in our midst, and the members of the Church of England are bestirring themselves. 4th September: Digging news must this week take precedence of all others—Hokitika having lately recovered from the state of excitement into which it had been thrown, by the intelligence of a find throwing into the shade the exploits of Hartley and Riley in the Dunstan—being nothing less than the sale by a party of three of a cwt. of pure gold, which they had for some months been quietly and secretly accumulating. The gold, which was of a fine description, had been saved by quicksilver, and was melted by a jeweller in town, after getting it smelted it was taken to the Bank of New South Wales, where it was purchased—the fortunate possessors leaving the same morning for the scene of their old labours, from which they propose obtaining still further supplies. Their secret was quietly kept by the Bank, until several days afterwards it oozed out through the person who had retorted the gold, and on Tuesday the town was startled by the appearance, in the largest capitals, of the particulars of the new find. During the day, and for some time afterwards, nothing else was talked of or thought about, and the Bank of New South Wales was rushed by a stream of sight-seers, to view the tempting ingots, which were with the greatest courtesy thrown open for the inspection of the public by the Bank officials. On one point only did they, for very obvious reasons, refuse to afford any information—the locality from which the gold had been obtained, but the
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general opinion is that, judging from the fineness of the gold, it must have been washed on the beach, and at no great distance from Hokitika. Of course the men are being most industriously shepherded, but as they are on their guard, I think they will probably contrive to elude observation.
25th September: ... In spite of the strenuous exertions of the Nelson Government to overcome the natural disadvantages under which Cobden must labour, Canterbury has irrevocably and completely gained the position as the site of the future town on the Grey. A police camp, warden’s camp, the Union Bank (compelled by the incubus of the Nelson Government to bury itself where the face of a digger is seldom seen), and some one or two other Government erections, confronting in a dense bush a neat and imposing street of wellbuilt stores, public-houses, and banks, extending for about three quarters of a mile along a high and clear bank, which may, with little trouble or expense, be converted into a good wharf. Building is going on very briskly, and there is an air of prosperity and well-being about the township, which shows the confidence the inhabitants have in the future. There is a very large quantity of gold in the hands of the Banks at Notown, as the diggings is strangely enough called, but a report that an organised gang of bushrangers is on the lookout for the escort deters the Banks from sending it down, unless with numbers sufficient to secure its safety.
9th October: . . . The beach just abreast of the old channel now presents a most disheartening spectacle to new arrivals. Close to the entrance the Star of the South is fast
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aground, though there is every prospect of getting her off; a little further, the Lady of the Lake has given one more proof of her uselessness for this trade, and is high and dry on the beach, where I expect she will be permitted to remain; a few feet more, and the Yarra is travelling inch by inch over the spit, leaving the more unwilling Maria and the dismasted hulk of the John Bullock for future operations. The Sampson, now entirely broken up, completes the melancholy group of valuable vessels, all the victims of little more than a week. With such incentives, can we wonder that the Government are pushing on a road over the ranges? The rush to Bruce Bay, which I reported in my last letter, has received a complete check by the news brought by the Bruce on her return. As was to be expected, the crowds who rushed off at a moment’s notice found no ready-made goldfield awaiting them, and were obliged to start prospecting with, hitherto, no encouraging result. Gold was found, as it is everywhere on the Coast, but not in greater quantities than were to be found almost anywhere in Hokitika, and I fear we may expect to see more of the miners back again, leaving no one but the shipowners the better for the rush. . . . The Improvement Committee, which has been asleep for so long, appears to have at last awaked, and we have daily visible proofs of their activity, in the shape of gangs of men employed in the formation and drainage of Revell Street. The result is already very obvious, and when they have extended their labours to Wharf Street, Gibson’s Quay, and one or two others, we may hope to lose the unenviable distinction of being the dirtiest town in New Zealand.
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LIFE.
In a letter to his father, referring to the recent robbery from one of their buyers, he writes:
I used to go once a week to a diggings four miles off, and take up some hundreds in notes and bring down sometimes 300 oz. of gold; and I expected to be stuck up every time—always having my revolver in my pocket with my finger on the trigger.
Letter to his father: September 1865, Hokitika: I did not carry out my idea of going here —to dig. Had I done so I might have done well, but might have got knocked up.
Letter to his father: November 1865, Hokitika: I find it nearly impossible to get on on £l5O a year. Board alone in the cheapest hotels is two pounds five shillings per week, while the luxuries of life-—such as are to be found in Hokitika—are at fabulous prices—2/6 was asked and given for a small cabbage. The Bank gives us sleeping accommodation, after a kind, but no room where we could cook or economise in, if we would; while a house is not to be had under any circumstances.
By January, 1866, the salary is “now £lBO, instead of £144 as formerly (not £l5O as I wrongly put it).”
From some desultory notes in a diary and from stray letters it appears that Denniston played his part in the society of the Coast; but derived most of his pleasure from books and from an intimate friendship with Dr. Giles, then Warden on the goldfields. He was frequently moved from town to town, and began to find his position very wearisome. He enjoyed taking part in producing “ Tom o’ Bedlam,” a humorous periodical which had the pleasant but brief career of such amateur publications. For most of 1869, he was stationed in Westport; and a diary of that year shows him as
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doing a little journalism; playing croquet, billiards, whist, chess; betting unsuccessfully in various ways; going out a good deal.
Diary: December 1869, Westport: To-day finishes one of the worst years I have ever had. Vegetating in Westport—losing money in every way —having rows with ever so many people—soured in temper —worse morally, physically, mentally, and pecuniarily than on December 31st, 1868. May 1870 prove more propitious.
Diary: February 1870; Went out to Bullen’s house to live with him and Wakefield. . . . I go out with the intention of having evenings to myself. I have made up my mind to work at law, with the intention of passing the Sydney examination. ... I am so heartily sick of the Bank as to grasp at any chance of escape.
Diary: February 1870: Reading Smith’s “ Law of Contracts.” Found my habit of desultory reading very much against any steady effort. I got very much interested in the nicety of some of the cases and distinctions. Diary : March 1870: Began to brush up Latin. [By reading Horace.]
Diary: April 1870: Received to-day by the Wallabi “ Stephens’ Commentaries ” and “ Brown’s Commentaries.” They make a very imposing show and look like business. I wonder how many young men have bought the same books and fancied themselves Lord Chancellors. Read in the evening. [Fortnight later.] Find some chapters of Stephens very stiff.
In this attempt to change his profession he got no support from his father. Mr. Thomas Denniston had by this time been compelled to abandon
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the run at Hillend, and was farming, without much success, at Oteramika, in Southland. In July, 1870, he writes to Jack:
I am bound to make allowance for the ambition you have to get on in the world. But I take this view, that no man who is in an easy and honourable employment, and who has a salary out of which he can make an annual saving has a right to complain that he is in a position of hardship. If you will think of the married men at home, with families, and with talents quite as good as yours, who are struggling and will continue to struggle a lifetime to make a livelihood, you will have to acknowledge that your lot is, above the average, happy and fortunate. When a little resolution in the way of saving opens up the view of ultimate independence—to say nothing of the chance of promotion—l think a man has himself to blame df he does not call in that resolution. There is truth in what you say of service in a Bank involving a certain amount of dependence, but there is thorough independence nowhere, and it comes to a balance of advantages and disadvantages in every situation. If you are determined to make a figure, it is clear you cannot do that in a Bank, but whatever other field you may choose will expose you to risks and difficulties which you will not have to encounter if you remain where you are. On the whole, if I were in your place, I would not hazard a change. . . .
I mean to look exclusively to cattle and sheep to do me good so long as I am here. But I shall leave whenever I get a good chance. I am in the greatest uncertainty as to what to turn my hand to. I must try to get to some town, whether great or small, and find some
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such employment as I was accustomed to at home; but it is difficult at my time of life to get into harness again. The only gain which I have personally made by coming to this country is improved health, and that is no mean advantage, although it has been purchased somewhat dearly. I must just be patient and wait the turn of events.
[October 1870.] They will be hard times for squatters as well as farmers. On the whole, the prospects for the country are discouraging and perplexing. One has to give up all hope of making money, and how to live remains the only problem of interest. I intend cutting my connection with farming and cattle-rearing as soon as I can, having become convinced after fair trial that I have no aptitude for the occupations, and shall turn my attention to something else.
In the same letter he expresses himself greatly pleased that Jack had sent two remittances to his brother Willie. Mr. Thomas Denniston, after considerable losses at farming, became literary editor of the “ Southland Times,” a position much more suited to his tastes. He was a man of wide culture and possessed considerable literary ability.
11.
In spite of all discouragements, Denniston maintained his intention of becoming a barrister, hoping to do so by way of Sydney University, which at the time seemed to offer the easiest road.
Letter to his father: February 1871, Westport; I have long ago made up my mind to leave the Bank and make an effort to enter the legal profession. I know you don’t believe in that; but though I don’t say I would make a
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good lawyer, I am certain that I would make a better lawyer than I would anything else. However, I can’t hope to convince you of that by letter.
He got away from the Coast at last. On March 31st, 1871, he was transferred to Dunedin, to his great delight. He soon started to rub up his classics.
Diary: May 1871; Yesterday I recommenced Greek with a Mr. McGregor; paying a pound a month for a couple of hours a week.
At about the same time he appears to have taken up reading Latin with a Mr. Hawthorne. He also kept up his law-reading. Frequently in the Diary are such entries as these;—“ At home in the evening. Stephens, Virgil, and some Greek.”—“ Greek as usual in evening.” He has many complaints in the Diary of ill-health, and his weight is given as only lOst. ilb.
Diary: June 20th, 1871; My twenty-sixth birthday. Every birthday seems to find me with less money, worse health, and poorer prospects. Where shall I be this time next year has been ray thought each time, and I have never guessed rightly. Let us hope I may be equally uncertain this time as any change will be for the best.
University lectures were starting, and Jack Denniston was doing his best to get lectures arranged at times that would make them available for men in offices.
Diary: June 1871: Saw to-night that the University classes have been arranged to allow business men to join. I shall go in for the Latin, seven to eight (pleasant getting up at half-past six in this weather!) and Mathematics in the evening; and, if I find I can stand it, English also.
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One great advantage of living in Dunedin was the company of his brother George, now established in a business firm there. There were also occasional visits from Willie and from Arthur, who was in the Colonial Bank.
Of Arthur he writes in this year:—“ He seems to have the capacity, which I never possessed, of reconciling himself to the situation.”
Diary: June 1871: Got a barber to take off my moustache and reduce my whiskers. The result was very decided, but I think it a great improvement. It makes me look neater and more businesslike, and I think a little older, instead of younger as I thought it would.
Bessie had in 1870 married Robert F. Cuthbertson; and Tom, after unsuccessful attempts on the West Coast goldfields, had gone on the land.
Ten days after the gloomy entry on his birthday, the chance that Denniston had been waiting for came to him through Mr. (now Sir Robert) Stout, who had been struck by his ability at the evening classes in Latin and Greek.
Diary: 30th June, 1871: To-day Stout, Stewart’s clerk, who has just passed for the bar, told me Stewart had not yet got a clerk, and as he knew I had a smattering of law he advised me to apply for it and promised me his assistance. I have made up my mind to take the show if it offers. Afterwards got a note from him saying he wished me to call.
Diary : 4th July; Called on W. D. Stewart this afternoon. . . . With some difficulty I got out of him that he would give me £2 a week and articles for three years; I agreeing not to practise in Dunedin at the expiration of my articles.
His salary in the Bank was at the time £3OO a year. He embodied the terms in a letter to Mr.
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Stewart, and on the 6th they were agreed to.
Diary: 7 July: After business had an interview with the accountant, Nasmyth. He was unexpectedly and markedly kind and flattering. He said I had excellent prospects in the Bank: that now the service was weeded those who remained had excellent chances of promotion: that I would have the Bills shortly, and that he had spoken highly of me to the Inspector and to the Manager. But he admitted that I could not hope for more than, at the most, some slight increase in three years—and by that time I hope to be earning my money as an independent professional man. He admitted that I had better chances with Stewart and said the Bank would not stand in my way.
Bth July: I am to have an increase the second year if things go well. lamto be managing clerk, there being two others in the office, and I rather dread the difficulties of my position.
Letter to his father: 10th July, 1871, Dunedin: If I can in moderate time prove equal to the duties, I believe I have got into a first-rate opening; indeed I have as good a chance, starting as virtually managing-clerk to a man with a very good business, as many have after many years’ service. As to the wisdom of the change, I have very little doubt. In three years I shall have passed, and I very much mistake myself if I am not then able to make a much better living than as a bankclerk, besides being independent. Even as a lawyer’s clerk I would have as good an income in all probability—but I am sure you will think with me in this. Not the least benefit to me has been the comparative settlement it has brought me. For at least a year I have been
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determined to leave the Bank, and equally determined to get to the bar—and I can hardly tell you how the vagueness of my scheme to attain the latter has unsettled me. I read at night, but was often interrupted—and I always reproached myself at the end of the week at the little I had advanced; indeed since leaving my sturdy Westport supporter, Dr. Giles, who backed me up with counsel and encouragement I have been painfully dispirited. Time, which was till now fighting against me, is now in my favour. My salary is small but I can manage to live on it, and I am confident that at the end of the first year I will manage to get a fair increase—because I am enthusiastically fond of law, and shall have every inducement to work at it. I hope to hear from you soon, but even if you have written before receiving this, I shall expect a line—l hope congratulating me on the change. George, whose opinion on business matters I value highly, strongly approves of the step, as do those whom I have consulted in the matter. I am glad to think that it is to my having read some law and to my going in for Greek with a view to Sydney that I to some extent owe the change. . . . It is a matter of regret to me that my reduced salary will prevent my being for some years an assistance to Willie or anybody else, but if my success as a lawyer should be fair I hope I may some day or other be in a position to do more in that way.
I propose to attend two classes at the University which has just been opened. The Latin must be one and I am only doubtful as to whether I shall take Greek or Mental Science —the latter would be my choice, but I fancy that the two languages will be required to pass
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the General Examination before passing as a barrister.
From the moment of making this great change, the tone of his letters to his father changes. Instead of the discontent of the West Coast days, the letters show a spirit of confidence and selfreliance. He found the work congenial from the first, and was satisfied with his progress. The University work for the first year had to be restricted to the Latin class.
Diary: 28th July, 1871; This day signed articles with William Downie Stewart, Solicitor, for three years from date, with a covenant not to practise in Dunedin for 3 years from termination of articles under a penalty of £lOOO. I am appalled at the number of articled clerks in this city. I can number over 30, but I am not without confidence that I can manage to make a good show if I can get an opening. I look forward to the Coast as a probable “ stand ” as there my connection may do me good.
A Law Clerks’ Association was formed at this time. Denniston was on the committee and took an active part in the Association’s activities. His main recreation—as on the Coast —w'hen the weather permitted, was bathing. There are occasional notes of football matches; but no mention of cricket save a newspaper cutting referring to his cricket team in the old Bluff days. He played a certain amount of billiards, but was usually busy in the evenings.
At the end of the University year, Professor Sale placed at the head of the Latin class Messrs. Dunn, Denniston, and Connor, highly commending them. Dunn was the prize-winner, Denniston second.
Diary; Dec. 1871; I mean to go in for Grammar and composition this recess, and to try
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and make it hot for Dunn next session. In 1873 he attended the Junior Mental Science class, coming first in the examination; and in the same year was prize-winner at Mr. Stout’s Law lectures.
In August 1874, Denniston was called to the Bar. His father writes to him:
And now, what must I say to you on this great occasion of your life? You have reached, solely by your own exertions, as far as human agency is concerned, a position of great honour and advantage, and I wish you joy of it with all my heart. It is far more creditable to you and more fitted to yield you satisfaction that the idea of aiming at the position should have been your own, and that you have climbed into it over many difficulties and some passive opposition, than that you should have been lifted into it at the will and by the effort of others.
At this time, Mr. George Hutchison had worked up a good practice in Wanganui, and wanted to establish a connection in Wellington. He had previously been in Downie Stewart’s office, and a partnership was arranged between him and Denniston, the latter to take over the Wanganui work, while Hutchison went to Wellington.
Letter to his father [after attending an important debate in the House of Representatives on the way to Wanganui] : September 1874, Wanganui: The worst of these things is that they make you ambitious to have a share in them—you fee! like Bunsen when he first attended a meeting of the English Parliament: “Were I an Englishman, I should die rather than not be one of them.”
Hutchison did far the largest business here
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—there are no less than four others—and it only remains to see how much I can retain of it. Hitherto I have got on very well—better than I expected—but I am looking forward with dread to Hutchison’s departure and my being left altogether by myself. ... I feel most dreadfully lonely with no one to sympathise or to talk to. . . .
I am far from considering that I have at all ceased to be the gainer by any advice from you, and I am only grateful for your anxiety in the matter. As to health, I hope I am impressed with the advantage of care and attention, and the incalculable importance of the subject. I shall try and get the books your refer to. In the meantime I am as ardent a cold water devotee as you could desire. ... I have forgotten to say that I hardly ever take spirits in any form, never having acquired any liking for them.
Letter to his father: November 1874, Wanganui; Last Wednesday I went to Palmerston, 50 miles off, to defend an action. I went by coach 30 miles Wednesday afternoon to Bulls, started on horseback at 6 next morning and got to Palmerston at 8 a.m., was in Court from 10 to 8 p.m., rode back to Bulls same evening, and got into Wanganui by 11 Friday morning, having travelled 100 miles and been in Court 10 hours in a day and a half—not bad work, I think. ... I find that even the short time I have been here confirms my determination to rusticate as little as I can in a small town, but to aim at making enough to support me in a subsequent start in Dunedin or some other place.
Wanganui was not congenial to him; and he wrote to his brother George of his longing for
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Dunedin. The latter sounded Mr. Downie Stewart on the subject, who admitted that he missed the keen intellectual companionship of Jack Denniston, saying: “I like to rub my mind against another’s.” George Denniston negotiated for his brother and got him into partnership with Downie Stewart on the terms of one-third share for three years and subsequently half share. Accordingly in May 1875 he left Wanganui, having won all his Supreme Court cases during his short practice there.
Some two years later he became engaged to Mary Helen Bathgate, daughter of the Hon. John Bathgate, M.L.C., and Mary Maclaren. He was at this time described by one of the Bathgate sisters as “ a young barrister, who seems very hottempered, but devoted to M.” They were married on the 15th November, 1877, with George Denniston as best man, and soon afterwards bought a house at Mornington. Mary Bathgate was born in Peebles, where her father was Procurator-Fiscal, on 13th February, 1856; and came out to Dunedin with her parents in 1863.
Denniston’s father wrote to him on his engagement :
I received your note of the 26th to-day, and hasten to tell you what very great pleasure it has given me. I congratulate you with all my heart, and hope for a very happy result from this engagement. I had heard enough to make the announcement less than a surprise to me, although there was a little flavour of that in it. . . . The connection is all that one could desire, and although both Mr. and Mrs. Bathgate are strangers to me, I know enough to be able to respect them. It is pleasant to hear what you say of the other members of the family. Much of the happiness of my married
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life was derived from the pleasant circle into which marriage brought me. . . . Certainly 1 am well satisfied that you will have less temptations to indulge in party-going—a most ruinous system, as I think, and one, by your own showing, carried on to excess. ... I am extremely amused at your twice saying that the thing is novel to you, as if that were not the normal character, although not quite the necessary character of the affair. But I know what you mean, and in your case there is the freshness (I presume) of a first declaration —a pleasanter state of things than if you had the advantage of practice.
It was always the barrister’s rather than the solicitor’s side of the work that Denniston was interested in; and his reputation as a barrister continually increased, particularly in criminal cases.
Letter to his father; November 1876: I was to-day retained by a man charged with larceny at Oamaru to go down there “ Special ” on the 20th. The thing is very absurd, as there are men there with twice my capacity and ten times my experience in Criminal matters; but it is not of course my business to cry stinking fish; and a recent success of mine in obtaining an acquittal, in the face of very strong evidence and a very strong charge, in a case of perjury has given me a somewhat undeserved reputation. The jury in that case were very friendly to the prisoner, and only wanted a decent excuse to acquit him, which it of course became my duty to suggest to them. The only awkwardness in going up in so prominent a way is that a failure will be conspicuous and ridiculous. Fortunately however the case seems a clear one—a mere stupid practical joke, in which there should never have been a com-
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mittal—and I am very hopeful of success. October 1877: I made on the whole a pretty fair speech . . . but I have received an amount of credit for it which I don’t think it deserved. Smith complimented me very handsomely when I sat down, and I may say that every man whom I met next day whom I knew and a great many whom I didn’t know stopped me to shake hands, a result which was mainly owing to popular sympathy with a pretty vigorous attack on .
Old account books show that by 1880, if not before, he had begun the practice of pouring his money down gold-mines of every description. This habit, to the end of his life, effectually disposed of any surplus of income over expenditure. These old account-books bear testimony also to his keenness for buying books.
While practising in Dunedin, Denniston displayed that quickness of thought which was always characteristic of him. During this period he displayed also a quickness of temper which led to several “ scenes in court ” with opposing counsel. In 1883, when the local paper made somewhat offensive remarks on that score, he was so ill-advised as to sue it for libel. The defence consisted mainly of a recital of these “ scenes,” and the plaintiff was laughed out of court. The whole affair caused him great chagrin: his despondency being removed—as the correspondence with his father shows—mainly by a consoling letter from his firm friend Dr. Giles.
Letter from Dr. Giles; Nov. 1883: Your letter does not suggest anything as to the true cause of the “ scenes in Court.” What is the “ fons et origo ”of the whole business? I feel quite sure you are right in saying it is not ill-temper nor a quarrelsome disposition—but I am puzzled to know what it is. Sometimes
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I have thought it is mainly an impatience of bad logic and slovenly discourse. I think there may be something in this. I have sometimes myself felt indignant at an “ ignoratio elenchi ” as at an immoral fraud, and have resented as if it were a larceny an “ argumentum a non tali pro tali.” And if my brain vibrations were as swift as yours I cannot say what explosions might have happened. But the world I am afraid has a large tolerance for bad logic and it dearly loves sensation which accounts for the usual results of these little affairs. Now I think you are sufficiently master of your weapon to foil and disarm your antagonist if you could keep cool and defer your thrust until a favourable opening offers. The public ought no doubt to take the side that is strictly logical, but they don’t always understand it at the moment, and if they did they don’t care much about it. Therefore however unreasonable—not to say brutal—was the paragraph on which you proceeded, I think it was hardly to be expected that a jury would take a very serious view of it. But from this last consideration—after all my other remarks, which I fear border on the censorious, and which perhaps from my ignorance may be very wide of the mark—l draw great comfort for you. For let the indifference of the jury be a measure to you of the indifference of the public to the whole affair so soon as they have had their fun and excitement out of the scrimmage.
According to George Denniston’s letters to his father, Jack when conducting a case was inclined to speak too fast and be hard to follow, and to confuse the names in the case. He was commonlyconsidered to have a sound knowledge of law. On at least one occasion he acted as examiner in the
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University Law examinations. The energy and the care he exercised in his work can be seen from his Case Book and his Barrister’s Commonplace Book. Inside the front cover of the latter book he had written the two following quotations:
“ Much as I admire the great abilities of M. “ Berryer, to my mind his crowning virtue—as “ it ought to be that of every advocate—is that “ he has throughout his career conducted his “ cases with untarnished honour. The arms “ that an advocate wields he ought to use as a “ warrior, not as an assassin. He ought to “uphold the interests of his client per fas and “ not per nefas. He ought to know how to “ reconcile the interests of his client with the “ eternal interests of truth and justice.”—Sir Alexander Cockburn, in reply to Lord Brougham’s statement that “ the first great “ quality of an advocate is to reckon every- “ thing subordinate to the interests of his “ client.” (Banquet to M. Berryer 1864.)
“ The propriety of putting offensive ques- “ tions must be judged of by the circumstances “of the particular case. It is a very serious “ responsibility which is exercised by some “ counsel with conspicuous good taste and good “ feeling, and such men have their reward in “ the confidence with which they inspire judge “ and jury. Others, unhappily, use their power “in a cruel manner. I do not think they are so “ successful as their more conscientious rivals; “ but, unfortunately, they are popular, as they “gratify a base feeling which makes some “ people enjoy seeing a witness worried. In a “sentence, our system is not in fault; it de- “ pends on the good feelings of counsel and the “ firmness of the judges to make it work well.” (Extract from “ Commissioner Kerr—an in-
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dividuality,” by G. Pitt-Lewis, K.C., the opinion being that of the Commissioner). He entered in this book also the following quotation from “A Century of Law Reform,” by Blake Odgers;
" Of all the mighty changes that have taken ‘‘place in the nineteenth century, the greatest “ change has been in the tone of the adminis- “ tration of both the civil and the criminal law. “ The manners of our law courts have marvel- “ lously improved. Formerly judges browbeat “ the prisoners, jeered at their efforts to defend “ themselves, and censured juries who honestly “ did their duty. Formerly, too, counsel bullied “ the witnesses and perverted what they said. “Now the attitude of Her Majesty’s Judges “ towards parties, witnesses, and prisoners “ alike has wholly changed, and the Bar too “behave like gentlemen. Of course if a wit- “ ness is deliberately trying to conceal the “truth, he must be severely cross-examined; “ but an honest and innocent witness is now “ always treated with courtesy by counsel on “ both sides. This is due partly to the im- “ proved education of the Bar; partly no doubt “ to the influence of an omnipresent press; but “ still more to Her Majesty’s Judges.”
He made jottings also in a non-legal “ Commonplace Book”; the authors most frequently quoted in West Coast and Dunedin days were Browning and Landor.
During the years in Dunedin four children were born: Maurice Edward, Mary Bathgate, Hugh, and Helen Walker.
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111.
In January 1889, Denniston was appointed by Sir Harry Atkinson’s Cabinet a Puisne Judge of the Supreme Court. The appointment was received with general satisfaction, though with some criticism on the ground of his impatience and irritability. The anxieties and the hopes of his friends are expressed in a letter from the man mainly responsible for his selection, in which he refers to the prior criticism in the Cabinet.
Letter from T. W. Hislop, Attorney-General: I even—as you would gather from my letters—who knew the inner Denniston, began to almost suspect that my partiality was blinding my judgment when they were so strongly urged against you. However I was strengthened by the reflection that you had condemned the coarseness of Campbell and that you admired the strength and sincerity of Cockburn, and that among local judges you admired the patience, politeness, and self-control of Williams, and I felt confident that you would strive to emulate them. I recognised the fact that your mental process was a very quick one and that you were impatient at any halt between a determination and an act, and that your nerves were finely strung. I had to admit that, but I also knew that when the weight of responsibility was upon you . . . you would show that you as keenly appreciated your position as you used to do and as you had done as an advocate.
A memorandum jotted down on a little pad many years afterwards—at the time of his resignationgives an idea of the new judge’s feelings at this time. It refers to the offer of the judgeship.
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Memorandum; I have sometimes wondered if, had I not chosen it, I should have had a happier life. I should certainly have had a different one. At the time, I accepted it without hesitation and with unfeigned gratification. It was the goal I had aimed at, and I reached it long before I hoped, or could have hoped, to attain it. It entirely suited my line of thought, and my capacity. It secured me a satisfactory income for life. It at that time promised reasonable leisure, congenial associates, an assured position. I have always been endowed with the most doubtful gift, a vivid imagination, and almost invariably find realization inferior to anticipation; but I cannot say this was the case in this instance. . . I abandoned any chance of entering into Public Life, always an ambition of mine, and—perhaps the most serious of all losses—deprived myself of anything like intimate social life, and free interchange of ideas with my fellows. On the other hand, with my temperament, I might easily have worried myself out of existence, or out of health, long before the present moment.
Early in 1889 the new judge came with his family to Christchurch, and commenced his duties.
Diary: March 1889: To-day I took my seat for the first time on the Bench at Christchurch. . . . I was very nervous during the ceremonial part of the proceedings. As soon, however, as I settled to the business part of the work, I found myself at ease, and without the slightest nervousness. 1 found my experience at the Bar enabled me to get on without any difficulty.
His father was present, and he also described the scene in his diary—of which that year happens to be preserved.
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Mr. T. Denniston’s diary: March 1889: At 11 a.m. saw my son John take his seat as a Judge of the Supreme Court. Mr. Weston delivered the address of welcome and the Judge replied. I cannot expect to have during my life a prouder day than this. Jack behaved well, and although evidently nervous retained wholly his self-possession and began work like one to whom it had been quite familiar. Lunched at Ferry Road and relieved Mary’s anxiety by telling her how well everything had gone off.
This had been at the Civil Sessions. The First Criminal work was in the following month.
Diary: April 1889: Opening of Criminal Sessions. Everything done with more “ style ” than in Dunedin. Found a beautiful bouquet of flowers on desk. Charged grand jury with some trepidation. . . . Found my old work on other side of Court of great use.
All day trial for murder by a prisoner of a fellow prisoner. Facts clear, and defence insanity. Case presented many interesting features. I thought the evidence clearly showed the existence of brain disease, and that this fact once proved greatly altered the presumption that a man was sane. If the thinking machine was damaged, the inference of sound thinking did not arise. I therefore showed pretty plainly what I thought, and they acquitted on grounds of insanity almost at once. I was very nervous when I came in with the black cap under my desk—though I felt almost certain I should not have to use it, and in any case the man would have had his sentence commuted.
Thus ended my first criminal sittings. I
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think fairly successfully, but I have felt a great strain on my mind.
He lived for a few weeks at Tilford, Ferry Road: then rented the house in Fendalton Road next the Church, now occupied by Mrs. Murray-Aynsley. There, in 1890, I was born; John Geoffrey, fifth and last of the family. During the nine years that the Judge lived there, his custom was—when the weather and his health permitted—to ride in to Court and back, with occasional longer rides. He was not fond of walking. Sometimes he played a few holes at golf in Hagley Park; but at this time riding was his chief exercise. While in this house he took great interest and pride in rose-growing, exhibiting with invariable success at the Shows.
But his devoton to his work really left him very little time. He was always anxious to be getting through with any cases on hand and eager to have no arrears. This was conspicuous during the Court of Appeal sittings. It is clear from the Diaries that his impetuous haste took him ahead of his colleagues, and even while he was a junior member of the Court he was frequently the first to have his judgment written; and the other judges were content in many cases to “ concur.” Though quick in producing judgments, he nevertheless took very great pains over them. The following—in these or similar words —are familiar phrases throughout the Diaries: “I am still in doubt as to one point”; “ there are some neat points which I am uncertain of ”; “I think I now see my way.”
Diary: February 1894: Reserved judgment. I am afraid a tendency to refine and see distinctions, always a defect of mine, is rather growing than diminishing. I wish I saw my way to deciding oftener on a broad view, and on first impressions.
Diary: 24th April, 1894: Altered my view on
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the main point in the Timaru [Building Society] Case. Then came round to old view, and partially re-wrote judgment on slightly different lines. Then altered it again and wrote judgment on that basis. Finally came round in evening to opinion that I was overrefining, and remodelled judgment. What a comfort there is a Court of Appeal. This system of leaving these questions to be settled by a single mind is most unsatisfactory. Two judges should sit in banco.
25th: Took judgment home to read it over finally. Again hesitated, and altered judgment, substituting some pages and striking out and altering it as written by Associate. Grave doubts about it.
26th: To complete absurdity, again reconsidered judgment and came round to old view originally held by me. This seems after all the simplest, and most consistent with the H. of Lords judgment in the main case in the subject. Delivered the judgment.
In a great majority of cases he satisfied himself in the end, though not infrequently there are such entries as the following;
Diary: June 1891: I think I am right but sincerely hope case will be appealed: it is much too important and too doubtful to be settled by one mind.
He was not diffident about his judicial ability, but he disliked —particularly when he was young as a judge—having to reverse the decisions of the lower courts.
Diary: June 1891: Then a very puzzling appeal from . Not for its difficulty, for I see no difficulty in disagreeing with his judgment, but for the diffidence and dislike I have in “ sitting upon ” a man of ’s experience.
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In this case he has to my mind gone quite wrong.
Diary: May 1889: I simply expressed my inability to accept judgment of Court in Sommerville’s Case, and this chiefly because somewhat diffident in expressing the strong dissent I feel as to it, against the opinion of older judges—in my first sitting—especially as my judgment could not affect result.
Diary: October 1889: An “ off ” day. Wanted it badly, having been very much fagged with the constant work of the last few weeks. Have had to sit close at work all day, and consider and prepare important judgments at night. Have begun to feel old symptoms — also dreaming of court work
Diary: 31st December 1890; For myself and mine it has been a year to look back on with much thankfulness. ... I can only humbly hope and ask for as fortunate a year in 1891. I continue to like my work, though severe and trying in its responsibility; and I believe I continue to satisfy the public and the profession.
The fears as to his impatience on the Bench had not been altogether unjustified. The necessity of keeping a watch on this was constantly in his thoughts.
Diary: October, 1889 [Wellington] : In evening to MacGregor's. Found him alone, and yarned with him all evening. He told me he had heard I had the reputation of interrupting counsel too much. I am afraid this is true — and yet it seems the only way of doing justice to the arguments and letting them see what is in one’s mind so as to allow them chance to answer before judgment. But I must keep myself in hand.
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Diary; October, 1892: Downie Stewart called. With his usual frankness began to talk of how I stood with Bar. Said they had every confidence in my ability, impartiality, and so on; but disliked my apparently arriving too early at opinion and showing it. He says this discourages them, and that even those on the other side don’t like their points, which they have had the trouble of looking up, anticipated: it also prevents them getting the credit of success with their clients. I fancy there must be a good deal of truth in this. One must allow for stupidity and prejudice even at the expense of lengthening business, and listening to a great deal of prose and twaddle. Must take this into careful consideration.
Diary: 31st December, 1892: In my official life there has been an awkward suggestion of discontent and dissatisfaction, where I had thought I was secure. lam however satisfied that it is confined to a small minority. . . . I have every evidence that the majority of the Bar here and elsewhere have undiminished confidence in my judgment and impartiality. But the “ emeute ” has satisfied me that there are errors and weaknesses in some of my methods of managing public business which can and must be rectified and avoided.
He had a very painful experience at his first sentence for murder.
Press cutting in Diary : February 1891 ; " The “ Judge, pale with emotion, drew the black cap, “ a square of cloth, from beneath his desk, “ put it on, and began to pass sentence of “ death. He had spoken but a few words when “ the wretched creatures in the dock seemed “to suddenly realise their awful position. “ Sarah Flanagan broke out with piercing
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“ shrieks. Her mother wildly asked the female “ gaoler who had entered the dock if it was “ true, and then also uttered screams and “ lamentations. In heartrending accents the ‘‘two women appealed to the Judge for par- “ don, wringing their hands and wailing. His “ Honour, in as few words as possible, words “ which were almost inaudible owing to the “ fearful cries which rang through the Court, “ completed his painful duty. . .
Diary; The above account of the trial and of the scenes in Court needs no comment. In Sergt. Robinson’s “ Bench and Bar,” speaking of a very long experience, ke says he never knew of a prisoner receiving sentence of death in any way but quietly. So that my first experience of the kind has been exceptionally painful. There can be no doubt of their guilt. I was very much cut up, and had a very bad night.
In 1891, the Judge’s sister, Helen Denniston, died in Edinburgh. She was always bright and cheerful, and a favourite with her brothers and sister, who felt her loss keenly.
In the Vacation, January, 1892, the Judge took a trip by himself to Tasmania, where the Australasian Association for promotion of Science was holding a congress. There he met many interesting people, and attended various functions: yet got little enjoyment out of his lonely trip.
Diary: January, 1892; I realised, however, how absurd it is for me to seek for pleasure in coming among new faces and new places.
February: Arrived home . . Devoutly thankful at getting to end of holiday and resolved never to spend another in same fashion. While at Fendalton, the Judge was in the habit of attending most of the concerts held in Christchurch; and was elected President of the Christ-
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church Musical Union on its formation. He was fond of dancing throughout his life. He enjoyed a game of chess, though his impatience frequently proved fatal to his success. He had purposely, however, on coming to Christchurch, kept himself from society. This was owing to his extreme conscientiousness, since he feared to find an intimate friend appearing in Court as counsel, witness or litigant.
Diary: August, 1891: I realised how isolated I practically am in Society. Plenty to speak to and plenty of courtesy —but none with whom I can feel myself on the terms I was with so many in Dunedin.
On his visits to Wellington for the Court of Appeal he felt less need for restraint. He had a great liking for an evening’s talk with men he knew well, and this taste he was able to gratify on these visits. Two of his colleagues he was particularly attached to, and greatly admired; Mr. Justice Williams and Mr. Justice Richmond. The death of the latter in 1895 was a great blow to him. To Mr. Justice Williams he continued for years to write about difficult points and to send draft judgments for approval. While the Court of Appeal was sitting he took great pains to discuss cases with Richmond and Williams until they arrived at agreement, if possible.
Diary: November, 1894: The whole incidents of this session show that the present system won’t do. I proposed three sittings instead of two, shorter of course, and sitting four days instead of five, leaving two days for consultation. This seemed generally agreed to; but of course no action taken.
October, 1896: [Chief Justice] invited me to come into his room and take Richmond’s vacant place. I wish I could fill it.
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July, 1897: Williams amused me to-day by saying in his dry way that he had no principles —had not time for them. He had only, he said, three maxims—“To do the day’s work as well “ as he could, to be decently civil to everyone “he met, and to speak the truth as far as " reasonably possible.” All this very amusing to those who know the man
My father had been himself a keen crossexaminer, but scrupulous to avoid dealing with a witness unfairly; and as a Judge he took great pains always to protect a witness from what he considered unduly rough treatment. Throughout the Diaries are such entries as, “ Cannot prevent rude questions, but can at least prevent them being asked rudely ”; “a nasty Old Bailey manner of examining witnesses. I suppose it pays—but to me it is intensely disagreeable.” Years later, on his retirement, an old farmer said to him in the street, “ What I liked was, you never let they lawyers bully the witnesses.” The Judge was very proud of this and used to say (the “ u ” pronounced as in hull), “Never ‘bully the witnesses.’ You ought to put that on my tombstone!”
The Judge had a great deal of travelling to do—which he very much disliked. He had regularly Timaru and the West Coast circuit, which entailed long and uncomfortable coach journeys. He took Dunedin, Invercargill, Blenheim, and Nelson at various times to relieve other judges. There were also the trips to Wellington for the Court of Appeal. He was a bad sailor, but discovered that by taking sulphonal he could get a good sleep on the ship without ill effects. In 1894 he was forced to take to wearing glasses permanently, having for many years previously worn them for reading. t\ i TA « 1 n4- 1 • T T fUitil-
Diary; December 31st, 1896: I have, 1 think I may say, held my own in my public duties
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and have gladly to note a very kind feeling with I think all the profession—having I hope lived down outwardly at least (and I think really) the hostility of some few.
His father had given up his literary work, and from 1895 spent most of his time at or near Akaroa. While in Invercargill, early in 1897, he had an attack of pleurisy and congestion of the lung. He recovered enough to come to the Convalescent Home at Christchurch, and in July came to live with the Judge.
Diary ; July 1897: Saw Dr. Boyd later. After pressing him to say something definite, he gave Mr. D. a month to live. Although none of us affected to wish a long continuance of his present condition, the suddenly being brought so close to the probability of the end was a shock. Of course he says this is a mere guess—but it shows he does not think well of his patient. He is 76 and has had health all his life and does not desire its continuance under present conditions—but still the prospect is painful.
14th September: Found my father unconscious—breathing heavily—in half an hour, at 9.25, he died quietly and without pain, never having regained consciousness. In his present condition it is for him a happy release. But one cannot see an association of a lifetime severed without a shock. Latterly I have been in very close communication with him—and shall miss him greatly.
In this same year Maurice Denniston had been seriously ill for five months.
Diary: 31st December 1897; The year just closed has to me been an anxious, an eventful and a sad one. In the beginning my father, then just completing his 76th year, had an
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attack which he survived only by the devoted nursing of his daughter, but which showed that the organic heart complication seriously affected his general health. From this illness he never really recovered, and on 14th September closed painlessly a long and honourable life in my house and presence. ... I find my work less congenial and more worrying, and my tendency to hesitation is not decreasing. Perhaps the holiday I am hoping for in 18S9 may improve this.
In 1898 Maurice took up the duties of Judge’s Associate; but in the following year he gave up law in favour of dentistry. In March, 1898, a move was made from Fendalton to Linwood House, Avonside. This house was nearer town, and the Judge as a rule walked in to Court. He gave up riding, and took to a bicycle—though never very confident in managing it. Throughout 1898 and 1899 he constantly complained of ill-health, and in December, 1899, he put in a definite application for a year’s leave.
Diary: 31st December, 1899: Somehow one finds this rather an epoch-suggesting date. To-morrow, though it is not, it is generally admitted, the beginning of a new century, yet it looks it, and suggests—even more than usual —the march of time. I am in my 55th year. Not much, in the ordinary chances, ahead of it. I find myself in fair health, though beginning to feel something of an old man. I have again been blessed by no gap in a large family circle. I have no reason to suppose that I have retrograded in the estimation of the public or the profession. I have had an unusually busy time, having had to do much of the Wellington work, owing to the interregnum and Stout’s inability to take many cases, in which he was
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engaged when at the Bar, and Edwards’ absence on Conciliation business. I have been three times—or four —extra to Wellington, twice to Blenheim and Picton, and twice to Invercargill. I think that if I get the leave I have applied for, I shall have earned it.
The leave was granted, and in March, 1900, the Judge and his wife, with the two girls, myself, and our old “ Nurse ” sailed in the “ Karamea.” She was a cargo-boat, taking the Cape Horn route, and —till Teneriffe—there was only one other passenger; the Judge luxuriated in the quiet of the voyage.
The ten months of holiday he spent mainly in London and in Scotland.
He met several Judges, to his great interest, and gave evidence before the Royal Commission on Divorce. He assiduously sought out all the relations, and particularly enjoyed revisiting the Clyde, with its old memories. It was during a stay at North Berwick that he developed the fondness for golf that later proved so valuable to him. He took some lessons from a professional there which gave him a new start in the game.
He landed in Wellington, much refreshed by the holiday, at 7 p.m. on February 7th, 1901; and next morning sat in a Criminal Sessions to relieve the Chief Justice, who had suddenly fallen ill. Severe influenza, with a touch of pleurisy, in June of this year, counteracted some of the benefit of the holiday. In this year, also, the most ambitious of his many mining speculations came to grief, and at the end of the year he notes that he is in debt, and finding it difficult to reduce his expenditure. Accordingly in January, 1903, he moved into a house at the corner of Armagh and Durham Streets, leaving with regret his 700 roses.
From this time there are frequent references in
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the Diary to the benefits of golf. “ Playing badly, but with usual result of sending me home much more at peace with the world.” “ I find this is the best way to keep from thinking and worrying.” “ Still quite active and in good health—much of which I attribute to the exercise I have had in golfing.” When he was so fortunate as to get a free day he was strong enough for some years to play a full 36 holes.
For a few months in 1901 his son Hugh acted as Associate; but when opportunity offered he went to work on a station. Towards the end of the South African War he went over and joined the Scottish Horse. Taking his discharge in England, he went with a Mr. Burbury to Patagonia, where he remained.
In August, 1902, Maurice, who had passed his dental examinations, went to Philadelphia for a year’s course. On his return he established himself in Wellington: and in 1906 married Moya FitzGerald, daughter of Gerald FitzGerald, of Wellington.
With the help of golf, the Judge got through the work during the years 1901 to 1906 with good health and not excessive worries.
Diary: August, 1902; I am glad to think that after 13J years I can claim to be on excellent terms with the Bar of Christchurch.
April, 1902: An extraordinary paragraph in Saturday’s “ Truth ” giving an entirely imaginary account of a very matter of fact sitting in Wellington. . . . There was a time when that sort of thing would have affected me seriously.
December, 1902: I am getting somewhat tired of the heavy strain and responsibility of sitting alone to decide important and difficult litigation, which wants a tougher and less
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sensitive organisation than my own. It ought to be sufficient to be able to say, “You have done your best and there’s an end o’t." But I cannot prevent retrospection and doubts.
During May and June he went on a trip to the Islands and British Columbia. This he thoroughly enjoyed; appreciating the rest and scenery, but particularly pleased by meeting many interesting people in Victoria, B.C. In the latter part of 1906 he had a good deal of illness, and in the following year took advantage of Judge Edwards’ going on leave to get a change by taking Auckland for a year.
In 1906 his daughter Mary—or “ Molly ”—married Harold Edward Abraham, son of R. S. Abraham, of Palmerston North. In 1907 the Judge was delighted by the birth of two grandchildren, Molly and Maurice each having a daughter.
In 1907 he was paid a legal compliment which pleased him. In Clark v. Macalister, Counsel quoted Terrell “On Patents.” The Judge refused to consider the citation as sound law. The Counsel subsequently wrote to Mr. Courtenay Terrell for his opinion on the point. He replied: “ I greatly regret that the passage cited from ‘ Terrell on Patents ’ by the learned Judge should have remained unaltered. It is misleading, and in the new edition which is now in the press the statement is altered. I think however that if the context is read, and especially the Judgment of Lord Bramwell which is cited on the same page, the law is fairly clear. The Judge’s comments upon the erroneous passage are quite justified.” This the Counsel was kind enough to hand on to the Judge.
The increasing work of the Judgeship gradually told on his health, and in 1910 he again had a year’s holiday to England, with his wife and his daughter Helen. Hugh got across from South America, and
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joined them for part of the trip. It was occupied in much the same manner as the 1900 visit. Unfortunately, just as he was about to start for New Zealand, the Judge had to undergo an operation; which detracted from the value of the holiday. The work from this time was very severe.
Diary: August, 1911: Got back to Christchurch after nearly eight weeks’ absence, occupied by the Coast and a sitting of six weeks in Wellington. The time possible to devote to Christchurch work is getting continuously reduced, and with it any pretence of leisure to me —as the work increases instead of diminishing.
In 1912 I left for Cambridge with the intention of becoming a schoolmaster. It was a disappointment to Father that his three sons all abandoned the Law but he loyally gave us the very best support he could in the professions which we had chosen. He was always absolutely sincere in his dealings with us, thoroughly kind and thoughtful, not demonstrative, rather diffident. His parting advice to me was just this: “ Well, my boy, remember we shall often be thinking about you.”
Towards the end of 1913 Sir Joshua Williams was appointed to the Judicial Committee of the Privy Council. The Judge highly approved of the appointment, but knew that he would miss Sir Joshua keenly at the Court of Appeal. He began at this time to discuss in confidence the question of his retirement. From 1912 to 1914 he found the work very heavy, which causes a gloomier tone than usual in the Diaries.
Diary: 20th June, 1914: I have entered my 70th year. A serious moment. I am afraid I feel a disappointed and not very happy man. I find myself poor, after having, by acting mainly without advice, lost enough to have made me, on ordinary investments, independ-
G. L. DENNISTON AND Mr. JUSTICE DENNISTON
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ent, if not rich, as men now count riches; with a record of which I have certainly no reason to be ashamed of a quarter of a century’s strenuous judicial work, which has gained me the fullest respect of the Bar and of such of the public as understand and know of such things; apparently about to retire with no acknowledgment or recognition. On the other hand, I have so far as I know very good health for my age and have been happily free from loss, or suffering, or disgrace in my immediate family circle —the real tragedy of life.
He had thoughts of a trip to England and France after resignation; and partly for this reason, partly through interest in the language, he put in considerable work at the study of French. He wrote out French exercises, bought a gramophone with educational records giving French pronunciation, and read a number of French novels. The War disposed of the idea of a trip; and considerably postponed his resignation, for he was anxious not to embarrass the Government, and the Prime Minister had indicated that the appointment of his successor would do so. The appointment of an additional Judge in 1914 enabled him to get some help in his circuit—the first time he had done so.
It is unnecessary to dwell on the effect of the War on the Judge, though the Diaries of course are much occupied with it. He had one son in France, another serving for a time in a hospital ship, and many nephews serving, of whom a sad number met their death: while his great kindness of heart made him share the sorrows of many of his friends.
His thoughts were now constantly of his retirement, and of the house which he was building on the Cashmere Hills for his time of leisure. Since 1911 he had been living opposite the Christ’s College gates. All his houses in Christchurch had been
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rented, and he was excited at the thought of making a place of his own to anchor in.
In December, 1916, he was formally offered—and accepted—a Knighthood.
Diary: December, 1916: I should have been sorry to have left office without any recognition, and I suppose I shall get accustomed to be “Sir John’d ” on every occasion—though I don’t like the idea, except on formal occasions. I should have preferred a call to the Legislative Council—as Massey knew. I have no doubt the appointment will be well received—certainly in Christchurch. “ Lady Denniston ” will be heartily welcomed.
I have not referred to what my Mother was to him through all the years of his married life, nor quoted such expression of his affection in Diaries and letters as his undemonstrative nature allowed him. Let this one passage serve as a summary of the mutual devotion of a lifetime.
Diary: November, 1917: Fortieth anniversary of my marriage—the one act of my life which I have never had reason to regret, and the most to be grateful for.
In February, 1917, Father and Mother—Helen being in England—moved in to Aviemore, the house on the Hills; with an exceptionally enthusiastic entry in the Diary:
Diary: February, 1917: It was a beautiful fine night, and the view from the balcony with its sloping foreground, and the upward slopes on both sides of the house, and the great rising belt of the Cashmere pine-woods—the big trees throwing their shadows over the grass, the further slope to the far-away road, the plains with houses and gardens and plantations, and the hills stretching for miles to the West Coast mountains, make all together one
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which can, I think, hardly be beaten, even in New Zealand. Looking at its extent and variety, I could scarcely force myself to bed.
'““'•V I J J - In the same month the belated New Year Honours List announced the Knighthood.
Diary: February, 1917: Last night Triggs (of “ The Press ”) rung me up and informed us of the publication of the Gazette. To-day it appeared in the papers. It happened to be Mary’s birthday—l won’t record the years. The telephone began at 8 in the morning and seemed to continue without break. I went down by tram to Court —being congratulated by all and sundry. I found such members of the Bar as could be summoned had assembled. .... From that date to this (27th) letters and telegrams have kept pouring in, all very kind. I have been flattered and pleased to find how warm and universal has been the approval. The Press (local) have been exceedingly generous. I have been specially pleased by the number of letters I have received from the Bar—many from juniors thanking me for the consideration and assistance I have shown and given them. I did not realise what 28 years’ residence and work—without I can honestly say a single untoward incident —have done in the way of appreciation. I can say this of M. even more than myself. She can say that she has not a single enemy. I have one or two — at most I may say—from public causes, none private. Circumstances have made intimacy impossible, except in the case of a very few. I have been much touched.
After frequent postponements at the Government’s request, the Judge’s resignation was accepted, to take effect on February 2nd, 1918. The decision was known before the Sittings of the
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Court of Appeal in the previous December, and opportunity was taken by the Bar in Wellington to bid the Judge farewell.
Diary: December, 1917: I was really touched. I had of course made a note or two, but could hardly speak. I managed however to express what I felt to some extent. It was very trying, but I can’t pretend to say that I was not much gratified.
A farewell, with many sincere expressions of appreciation, was given him by the Christchurch Bar in February, 1918. Then he settled down to enjoy his leisure.
Letter to J. G. Denniston: February, 1918: The last few years have meant very heavy work for me: increasing business in every way, very long and heavy Courts of Appeal, and an increasing sense of the hardship of having to do all my work without a colleague to consult with or refer to. . . . The strain on me was especially heavy through the fact that I for the last year at least was continually adjourning the day of my retirement. . . . The Bar was (both there and here, and by letter and motion from other places) very kind and cordial. I have indeed been very much gratified by the private expressions of regard I have received from not only members of the profession but from private individuals of all ranks. I had not before realised how largely a Judge, in a small country, bulks in the Public eye. Very many have spoken to your mother in the same tone. It is at any rate something to have sat within a few days of twenty-nine years with not only nothing in the shape of a judicial scandal, but nothing which I would substantially recall. It has been a very heavy grind, especially in the last ten years or so. But it
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has been congenial and interesting work —the only work, except literary, that ever appealed to me. ... I find already great relief in not having my mind filled with cases and other people’s business. . . . Your mother is happier, I think, than she has ever been before —and would be quite happy if the cloud which hangs over us, as over almost every household in the land, were cleared away.
Letter to J. G. Denniston: April, 1918: I have now been two months at liberty and find it very pleasant. I hardly ever go down to the City—a twenty minutes’ tram ride—even to see the papers. I potter about the garden—which is, thanks to virgin soil and a wonderful season, quite a mass of flowers. I read a good deal in a desultory way. I have read a great deal of French—nothing but stories. I have not yet got my books in order. There was a muddle about my shelves, and I have had a lot of fresh shelves put up in a passage upstairs which will enable me to arrange everything. But loafing—in one’s 73rd year—is so attractive! ... I feel well, and stronger and better than when I came up here fourteen months ago. If I could only recover my digestion! But I do very well on milk and cereals and such like. Time flies past at a great rate. Your mother finds no falling off in her content and pleasure in her surroundings.
Diary; October, 1918: Finished a very amusing book of Recollections, “ Fifty Years of Failure,” by Douglas Gordon. The “failure” consisted in not having made much money: having apparently succeeded in getting a good wife—getting and settling in life a nice family —and generally enjoying life. A fair, at least, imitation of success.
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Fortunately, at about this time, a boy at Shirley was in the habit of going to the Links every Saturday morning, to caddy for Sir John; and that helped to ensure his going down for at least one day’s golf a week, “ not to disappoint my regular caddy.”
Diary: October, 1918: I have just had typed a paper on “Punishment: The State v. The Criminal,” which has occupied a large—and I am afraid unnecessary—part of my time ir\ recent weeks —not to say months. It has been written in response to a request by the “ Workman’s Educational Association.” . . . Oddly enough, I had never during my 56 years in New Zealand read a paper in public. I had to alter and indeed reconstruct it more than once; and I doubt if I have materially improved it. I am much dissatisfied with it, and fear it will end in a fiasco.
November; To town, where I read my “ address ” to the Workers’ Association. There was a full attendance in the very small room in which the meetings are held —almost all working people. I was very well received, attentively and appreciatively listened to, and much applauded when I sat down.
December: Saw Struthers, who had asked me to call. He said his Association proposed to print my address. I was astonished to find that they mean to print 500 or 1000! I had no idea of this. They want to send it all over the Colony and to Australia! Had I had any idea of this I should, I think, have hesitated to permit the printing. I have no reason to be ashamed of the sentiments; but I should have probably hesitated to put some of the criticism so baldly. However, I am in for it now. It may do good.
In November, 1918, the Influenza Epidemic swept New Zealand. In December a Commission was
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appointed, with Sir John as President, to report on it. This Commission and the subsequent controversies and correspondence hastened his death, ans I do not care to dwell on it.
Early in 1919 I returned to Christchurch, and found Father very little changed from what he had been in 1912. He was contented and happy with his books and his garden; and it was more than ever a pleasure to talk to him.
In July he was seized with an attack of pleurisy. On Monday, the 21st, the doctors were there in the morning, and told me that I could safely go down to Christ’s College for that day. I told Father that I was going to College. With his invariable thoughtfulness for others, he urged me to go down and not to worry at all about visiting him; but called me back to say, “You know, my boy, we’re always glad to see you here.” That night Father suddenly sank, and a few minutes after twelve, in the presence of Mother and myself, quietly died.
In accordance with his wish, he was cremated, in Wellington. Many touching tributes have been paid to his memory; but let the words of Mr. Stringer, when sworn a Judge in the Court at Christchurch, stand for all:—“A Judge before whom I have practised for a quarter of a century with ever-increasing respect for his high ability, love of justice and fair play, and scorn of all things base and mean.”
Judicial Characteristics
John Edward Denniston came to New Zealand when he was a lad of seventeen, and soon after arriving set to work to make a living. His stay at Glasgow University had been brief and he lacked an intimacy, in early life, with those branches of learning helpful to a student of comparative and historical jurisprudence. His opportunities were, at this period, more or less limited to an examination of the existing legal system, and, being by nature endowed with an analytical and critical mind, his predilections fortunately coincided with his opportunities.
In his early years in New Zealand he read everything accessible to him written by those leaders of the Utilitarian and Individualistic school which exercised such a powerful influence over the minds of men of the middle part of the last century. The works of Leslie Stephen and A. V. Dicey have familiarised us with the debt we owe to the* Utilitarians in reforming, ameliorating and rationalising our Law and in freeing it from many of its archaisms and much of its inhumanity, and have also familiarised us with the story of the decline of the influence of the Utilitarians, consequent upon the rise of the Historical School, but not before
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they had accomplished their great work. Denniston concentrated upon the Utilitarians from Bentham to Mill, and Herbert Spencer, and, 1 in the region of law, John Austin. These writers left a permanent impression upon his mind manifested in his journal and his judgments. He ultimately became a great analytical lawyer, and, within the ambit of his judicial powers, a legal reformer.
Moreover, by inheritance he was in affinity with the Individualism of the Benthamites, coming as he did from Puritan stock, whose creed was the ultimate responsibility of the Individual without intervention of intermediary. This responsibility found its justification in conduct, in other words—in the discharge of duty, in Denniston’s case, judicial duty. Discharge of this judicial duty became with him a veritable passion for justice, causing him, as his journal discloses, much anxiety and, on occasion, sleepless nights.
For the subsequent work of his life, his arrival in boyhood in New Zealand had its advantages. He became a New Zealander, growing up and understanding thoroughly his fellow countrymen in the new land, gaining experience of life in the Bank, the Post Office and among the miners of Westland. He thus became competent to estimate the motives, inclinations and conduct of those around him—that complex known among lawyers as “ facts ” —the appreciation whereof is of inestimable value. He was saved that process of accommodation always required of, although sometimes never fully attained by, the man of mature age, trained in the different cultural surroundings of the English Public Schools, the old world Universities and the Inns of Court.
Dunedin, at the time we are speaking of, was the centre of the Colony’s activities, owing partly to the vigorous character of its considerable Scotch
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settlement, partly to its immunity from Native troubles, but mainly to the discovery of gold in the vicinity; and, as was natural in these circumstances, it drew to it the strongest Bar in New Zealand. Its first two judges, Henry Chapman and Joshua Williams—both Englishmen, by the way—were men of conspicuous ability, and during Williams’ regime Denniston was called to the Bar and practised. Later on he was closely associated with Williams as a colleague, and his admiration, amounting almost to veneration, for that great judge, finds frequent expression in his journal. Thus we find him saying:
October, 1902—at Court of Appeal.
Went down in evening to Court and made some alterations in judgment. This thing has cost me much trouble and some sleepless nights and I always differ from Williams with hesitation.
March, 1906: Saw A. B. (a learned friend). Read an interesting letter to him from C—(one of the best known legal writers) in which he speaks of Williams’ judgments, “ any one of which would make the reputation of several English judges.” Quite my own opinion.
And in January, 1914, when Sir Joshua Williams was leaving New Zealand to take his seat in the Judicial Committee of the Privy Council, there occurs this journal note;
I am glad to say that I have almost invariably taken the same view as he in our judgments. Living as we did in the same room for many years in our Court of Appeal visits, we had a great deal of intercourse. He is a very able man, very well read, with an hereditary taste and capacity for law—in temperament a curious mixture of the Stoic and the Epicurean. The family will be much missed in
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Dunedin. Williams’ popularity and the respect and even affection shown by all classes are, I won’t say remarkable, as they have been earned by the unprecedentedly long judicial career of close on 38 years without a single incident of an unpleasant nature. He is to have a great public send-off at the end of the month.
Denniston was raised to the Bench when he was 43 years of age, and in the full plenitude of his powers. His knowledge of law was already great and accurate, and as the years passed, it broadened and mellowed.
A noticeable quality of his judgments from the outset was their high literary merit, and the scholarly standard was maintained throughout his judicial career. His father, before him, had been a man of literary taste, while he himself was possessed of an extremely alert intelligence coupled with an artistic sensitiveness. This artistic side to his character was evidenced in his love of music, of flowers, and of the fine arts, and has been dealt with elsewhere in this Memoir, but it impressed itself upon his judicial work and is strikingly displayed in the judgments spread over 30 volumes of the Law Reports. There are no purple patches, but there is a nervous English, evenly maintained, expressing with precision and refinement the passing thought, and never descending to the slip-shod or commonplace. A judgment is, obviously, much more than a literary composition. Its value, apart from the immediate matter in hand, is the legal exposition, helpful as an authority for subsequent use, and shedding light upon questions theretofore obscure. Obviously, for such work accuracy of expression is a prime necessity, a necessity imposing literary limitations. No one was more capable of framing an epigram than Sir John Denniston. Yet
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he studiously avoided that dangerous delight, recognising that an epigram contains but a half truth, and is unsuitable for judicial utterance. There was, however, a quiet humour lurking and occasionally finding opportunity of expression. Thus, in disposing of an Appeal from justices against a conviction under The Licensing Act for “ Sunday trading,” the sale of liquor having been made by the publican’s son—a lad of between 11 and 12 years of age—the case is thus stated:—
“ The contention of the appellant is that having regard to the boy’s age the justices should have drawn the inference that he was coerced or cajoled into supplying the liquor by the men to whom it was supplied; but if the appellant’s view were to be upheld, the door would be opened widely for evasions of the Act, and the value of publicans’ sons of tender years on a Sunday morning would be greatly raised.” (a)
The qualities of intellectual alertness and artistic sensitiveness, so eminently possessed by the late Judge, occasionally led to unlooked for results. The alertness detected a fallacy in a flash, and sometimes induced a Socratic method, well enough with an experienced arguer, but disconcerting to a young Counsel. Even Counsel of long standing were occasionally unhinged and it is related that one of that eminent group, recognising that his argument had been riddled by judicial interrogation, aroused the Court of Appeal from its afternoon seriousness, by exclaiming, “ And now, your Honours, I have finished; but before I sit down, may I enquire in the immortal words of Sam Weller: ‘Would any other genTman like to ask me anythin’?’”
The artistic sense, calling for each shade of
(a) Henry v, Felton. 8 N.Z. L.R. 582.
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thought receiving its appropriate expression also led in the search for the precise word to a parenthetic mode, avoidable if he had adopted a more rough and ready fluency at the expense of some of his accuracy.
After all, these criticisms are of minor importance. His contribution to our law, and the distinction he conferred upon his office constitute his true claims to remembrance.
He was not a conciliatory listener to an argument couched in slipshod terms, or punctuated by modern slang, be it ever so expressive, as those practising in his Court well knew and, if wise, always bore in mind. In this respect he deserves, yet once more, our thankful remembrance.
He was always ready for the unexpected. Thus, in an action wherein damages were claimed for an alleged nuisance created by the burial of dead animals close to the plaintiff’s boundary, a witness, giving evidence in support of the claim, was crossexamined :
Counsel: “ What did you see defendant burying?”
Witness: “Dead animals.”
Counsel: “What sort of animals?”
Witness (probably a Prohibitionist): “ Bottles.”
His Honour: “Doubtless, dead Marines.”
The administration of justice is a great function of State, and it is fitting that the Court, the scene of administration, should be presided over with dignity and distinction. The late Judge fully responded to that requirement, without pose, for there was not a trace of vanity in his disposition, but conscious of the exalted status of his office and regardful of what was rightly due to it—gazing
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upon that striking presence and observing the diligent and patient investigation of everything relevant to the inquiry, the onlooker became sensible of the discharge of great duties with distinction and wisdom. His was a dominating but not a domineering personality. The duty fell upon him of control, of intervention when needful, and of comment, and, within due limits, of guidance of the jury. An entry in his journal (November, 1911) on the occasion of the visit of a distinguished American lawyer is of interest; —■
He was much interested being (as all Americans are) impressed with the extent to which judges administering English Law took control of the proceedings when necessary instead of posing as an American Judge does in trials—as a mere graven image, (a)
At Dayton, Tennessee, U.S.A., recently in The State v. Scopes for alleged breach of a statute prohibiting the teaching of evolutionary doctrine in schools, the late Mr. W. J. Bryan, leading counsel for the prosecution, entered the witness box, gave evidence, and under cross-examination became engaged in heated controversy with the counsel for the defence. Such conduct is rare, almost unknown, in New Zealand, but a case did occur in 1889 and Mr. Justice Denniston thus adverts to it in his Journal: —
On Tuesday I felt bound to comment on the
(a) “ Important as are the functions of the American “ judiciary, the powers of a Judge are limited by the State “ Constitutions in a manner surprising to Europeans. He is “not generally allowed to charge the jury on questions of “ fact, but only to state the law. He is sometimes required “to put his charge in writing. His power of committing “ for Contempt of Court is often restricted.” 1 Bryce American Commonwealth (3rd edit.), p. 504. A result of Want of Confidence in the fairness, perhaps in the integrity of the Bench,
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unsatisfactory practice of members of the Bar who had taken an active part as solicitors in matters in issue, and who had been briefed as wdtnesses, holding briefs in cases, and leaving the Bar to give evidence.
He is critical of the jury system, as his notes show’. The tendency of late years has been towards restriction of cases triable by a jury and at the present time many charges of minor offences which would formerly have been tried by a jury are dealt with by a magistrate, while in the Civil jurisdiction of the Supreme Court the jury has been eliminated except in trials of action for Tort. Whether it is desirable that all criminal cases should be tried by judges wuthout a jury (as the late Judge suggests) is a disputed question upon which there is much conflict of opinion among those competent to form one. Among the arguments used in support of the retention of the jury system are the following:—That judges are but men with mankind’s usual prejudices, and it is safer to have twelve men than one or even three; that the judges are drawn from one class more or less; that they lead somewhat isolated lives, that after the lapse of time they are prone to a particular attitude and (on grounds of expediency) if a serious miscarriage of justice occurs it is better that a jury makes it than that public confidence in the judges be shaken.
The following notes selected from his Journal show what the late Judge’s views are:—
1906, February; Seventeen years’ judicial work has certainly not enamoured me of the “ Palladium of British liberty.” It certainly relieves judges of a heavy responsibility, but three judges would be a far more satisfactory tribunal and would secure better administration of the law. The saving in time and jurors’ fees would repay the extra cost.
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1913: A very clear case, ending in an acquittal—accused was so amazed at the verdict that he dropped in an epileptic fit and was carried out kicking. He had a very bad record, and had actually handed me (I had to see him and the Crown Prosecutor in my room over a question of evidence) a petition for a light sentence.
1914: The jury could not agree. The Registrar informed me the foreman told him that two men had stood out for an acquittal, one simply saying he would never convict anyone and the other refusing to give any reason. All this shows strongly the necessity for a change in the law requiring absolute unanimity. This is especially the case in small communities where everyone has friends who may be on the jury panel. There should be a margin for the contingency of chicane, inducement (pecuniary or otherwise), friendship, pigheadedness or prejudice.
1917: I am more and more convinced that a Court of three judges to try all criminal cases would do more to secure proper verdicts and so, by making punishment reasonably certain, to prevent crime, than any other expedient. Other entries having reference to the jury system are: —
1905: Very much struck, here and elsewhere, by the great youth of juries—this one might have been a cricket eleven and umpire. I would not let a man be a juror under 25.
1906; Shortly after the jury had retired they came in and informed me that one of their number was quite deaf and had not heard a word of the evidence! Had the discovery been made before the retirement I could have tried with the eleven, with the consent of both sides, He was so deaf that I could hardly ascertain
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how he came to be sworn and could not lecture him without absurdity.
1912: The absurd rule, the gradual evolution from the old English dicta of judges, that juries have to be told that the uncorroborated evidence of an accomplice ought not to be acted on by juries, though they may act on it, without reference to the very different degrees and circumstances in which one may be an accomplice, compelled an acquittal.
There are certain classes of cases, notably prosecutions under The Gaming Acts, where juries are loth to convict. Denniston, J., had, of course, experience of these.
1906: Began first of three cases against bookmakers for keeping gaming (betting) houses. As at least half of the jury must have been at the place of the accused at one time or other betting, and as the evidence was necessarily that of police who had gone in disguise and made bets, an acquittal was a foregone conclusion. There will never be a conviction in these cases until it is compulsory on those frequenting them to give incriminating evidence, on an Indemnity, as in Revenue, Licensing and many other cases. The fact is that there is no real public objection to gambling—as to the extent of which these proceedings give ample evidence.
1906: The Jury seemed a very good one, but after remaining out for the necessary minimum four hours, they were unable to agree. I heard (one of the Jurymen having told A.) that as soon as they got into their room two of them said they were not going to convict under any circumstances—and that they would not discuss or listen to discussion. It seems impossible to get twelve men who will do their duty
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in such cases—partly from sympathy for those who are meeting a universal craze for betting, and partly because so many Jurymen must themselves bet. lam more and more convinced that the requiring absolute unanimity, in small communities, is most detrimental to the interests of Justice.
Technicalities were abhorrent to him, and received short shrift. Legal principles exist to further justice, and that was always firmly rooted in his mind.
1906: My view is at all events based on a definite principle, and consistent with common sense and convenience. As Richmond J. once said in handing his judgment to his Associate, “ This is commonsense—let us hope it is also Law.”
When new conditions arose, he applied the law to meet them. For instance, with the advent of the automobile we find the following statement of the law: —
Those who undertake the control of machines with such potentialities for mischief, and at the same time have such effective means of controlling them, are bound to employ such means at every hint of danger, (a)
And so, when the question arose as to the application to New Zealand of the duty cast in England by law upon Local Authorities to maintain in a high state of efficiency highways under their charge, he decides :
Is a County Council, by virtue of its having
(a) Selbie v. Shaw and others, 12 Gaz. L.R. 120.
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entrusted to it the care and management of all county roads, bound to keep such roads and the bridges and ferries therein in the maximum state of sufficiency and efficiency in which it may have received or to which it may have raised them, independently of any changed condition as to population, traffic, or otherwise? If such a liability exists it may have very awkward consequences. In some counties population, and consequently traffic, are of a very fluctuating nature. A new gold diggings may convert an unmade county road into the route for a very large traffic. This must be met by a large expenditure in forming roads, making large culverts, and constructing expensive bridges. In a few years the diggings may have failed or been worked out, and the population and traffic may shrink to their former insignificances. This is, of course, an extreme illustration, but the varying conditions of settlement in a colony suggest many cases in which the proposition that a bridge once made must always be maintained at the original standard would be the cause of great hardship and inconvenience. Is, then, the existence of such responsibility the necessary inference from the language of the statutes? English analogies and English cases do not, as I have said, assist us. The Council of a County has full power to form, construct, improve, repair, and maintain all county roads and all bridges and ferries therein. The language is permissive, not compulsory. The question as to when words, in terms discretionary, are used in an obligatory sense is fully discussed in Julius v. The Lord Bishop of Oxford. It was there said by Lord Blackburn that “ enabling words are construed as com-
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pulsory whenever the object of the power is to effectuate a legal right.”
I have already held that it is a legal right of the public to have, from any public body entrusted with and undertaking the control and management of a road, such road kept in such a state as to insure that it shall be reasonably safe for the traffic it is intended for. I do not find any authority to say that, subject to that limitation, such public body is deprived of a discretion as to how far and when the facilities for traffic on any road are to be adapted to the existing conditions on that road of population and traffic, even if such adaptation involve a reduction and diminution in the previously-existing convenience and efficiency of the road, (a)
Constitutional questions do not very frequently arise. They have been mostly settled in the course of our long legal history. ’ They are, of course, when they do occur, matters of great interest. We find the Judge noting;—
Saw the Attorney-General who requested report in the A.B. case. Told him that I could not admit the right of the Attorney-General or Minister of Justice to call on a judge to “ report ’’ unless on a petition from the prisoner or others for remission of sentence and then only for the information of the Governor.
A case of considerable constitutional importance came before the Court of Appeal in April, 1909. He concurred in the judgment, and has the following note about it: —
1909, April: Very important judgment written and delivered by Williams (Acting CJ.) in the motion for prohibition against the Appointed
(a) Stowell v. Geraldine County Council. 8 N.Z. L.R, 720.
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Commissioner proceeding to investigate what is generally called the Ohinemutu Licensing Case. That was issued under the hand of the Governor to investigate a charge that certain members of a Licensing Bench had received bribes to grant a license. The case (all the Judges sitting) was heard last week. The judgment, which was a very able one, ordered the Prohibition to go, on the ground that it authorised an investigation unknown to law into what was really a criminal charge, with power to punish to the extent, at least of ordering costs to be paid, contrary to the Bill of Rights, the Act abolishing the Star Chamber and other Acts. This ought to prove a very salutary check to the wholesale use of these Commissions.
“ Hard cases make bad law ” is a legal aphorism. The inwardness of this is that in every civilised system it is a necessity that the law be certain and that a variation from established principle to meet a particular “ hard ” case, is a disservice by adding one more conflicting authority “ making law.” Skilful piloting through the authorities and so reconciling them as to do justice in the case in hand is one of the marks of a great Judge, and in this art Denniston J. was a master. Sometimes, however, the authorities were too strong for him. Thus he notes :
1904, April: Trying to get up arrears but blocked by my inability to find a way through the conflicting English decisions on Workmen’s Compensation Act. . . . Engaged all day trying to arrive at a modus vivendi in the Workmen’s Compensation Act. . . . Found myself compelled by the difficulties presented
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by English decisions to abandon my previous conclusion in Compensation case. I have seldom had a case in which I have had more difficulty, or in which the English decisions are so difficult and conflicting—and let me with all respect add, in many cases so illogical and unsatisfactory. . . . Still worrying away at the Workmen’s Compensation judgment. Full consideration of the cases has led me to reverse the conclusion I had come to, which would have been a reasonable and logical one, had I to follow my own construction of the section in question. But to do this I would have had to go against authorities I have no right to dissent from, however much I may disagree.”
But when a way is open to depart from—or distinguish as it is euphemistically called—we find an entry such as this:—
1914, April; At Library. Finished a judgment on a case in a charitable bequest which ought to be law, if it isn’t. I have endeavoured to distinguish the case from some decisions of the House of Lords which have carried the law a long way in disregarding the obvious intention of the Testator. The Court of Appeal may, however, take a different view.
Text books being without authority and varying in value with the competence and standing of the author impose no judicial restrictions. He says:—
October, 1911: I refused to accept the dictum contained in most English text books on Criminal Law that in such cases it is necessary that the body should be found and identified. This is based on a single alleged dictum in a judgment or rather a charge. The judgment does not even justify the dictum, and it is, I am satisfied, not law. It is a proof how some loose statements get embalmed in a text book
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and gradually become treated as law.
In the English Courts, especially the highest, citation of authority is limited to the leading cases or those others having direct bearing on the matter in debate. In the Federal Supreme Court of the U.S.A. the practice is even more rigid, and it is only on very special occasions that oral presentation of a case by argument extends beyond one hour, but, it may be added, counsel supplement their argument by handing in their briefs, in effect written arguments.
The familiarity of the Judges of these great tribunals with all branches of the law is taken for granted. On this subject of the citation of authority in the Court of Appeal the following notes of Mr. Justice Denniston are pertinent:—
1896; More than 100 cases have been cited to establish a few plain legal propositions. At such a rate and on such a system, litigation in England would be impossible. How can counsel expect Judges, with the limited time at their disposal, to hope to study, or even look at, the cases so thrown at their heads?
1905 ; Still engaged on this case. An instance of the intolerable abuse of citation by counsel of cases. On one side alone seventy volumes of text books and reports were brought into Court, and I doubt if we were spared one of them.
1911: The usual waste of time in citing not only leading cases but every case mentioned in them. There must be 90 books opposite counsel. Do they expect four judges to go through and consider all these, when they are sitting every day?
The development of the law by judicial decision
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—judicial legislation as it is commonly called—is in these days of active legislatures of less importance than it was formerly. It still, however, plays a part in our system. Its exercise is mainly a function of the final jurisdiction and the Dominion Courts being subject to revision in the Privy Council can merely pass on their views on this important and interesting branch of legal activity. The Appellate jurisdiction of the Judicial Committee of the Privy Council arose in the days when Britain’s Colonies were sparsely peopled and autocratically ruled by an emissary from London, and it stood then as a security against injustice and despotism.
Different considerations arise with the development of the Dominions, their attainment of nationality, and their possession of a competent and honest judiciary. Curiously enough, the Dominions who nowadays prize the right of Appeal to His Majesty in his Privy Council are not those peopled almost entirely by men of British stock (Australia and New Zealand, for instance), but those where a large element of population has other origins. Thus, in the Dominion of Canada, with its Frenchspeaking population of two and a half millions, it is greatly valued by that important minority as safeguarding their rights under the Constitution to their own laws, language and religion—rights by the way they would not possess, at any rate not to the same extent, under the Constitution of the United States of America.
In the Dominions of the Southern Seas the value of the jurisdiction is not so apparent, and apart from the negligible sentimental aspect is mainly in the confidence it inspires in the British investor, an important person so long as our public and private indebtedness to Britain is so vast. The chief criticisms of it are based on its occasional inability to interpret the Dominions’ domestic legis-
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lation according to its true inwardness and spirit, and its difference of outlook upon questions of Public Policy where they diverge from those current in England.
Mr. Justice Denniston was known to the Privy Council as a learned Judge—in Fleming v. Bank of New Zealand he dissented from his brethren in the N.Z. Court of Appeal. The appeal was allowed in the Privy Council and Mr. Justice Denniston’s judgment adopted in its entirety.
The following extracts from the Journal have a bearing upon questions relating to the Privy Council:—
I never gave a judgment with less confidence or satisfaction and I hope and think that the Privy Council will reverse us. They can do much which we cannot, and the result of our judgment seems to me so unfortunate that I hope they will use their powers.
1904, May; Got word that the Privy Council had reversed judgment in the Newtown Licensing case. I cannot say I was surprised. I am as convinced as before that on no sound construction, on any valid legal grounds, can the right to have these licenses renewed be sustained. But their Lordships of the Privy Council have a way of “ reading words into ” a Statute when in a difficulty—particularly when vested interests are concerned—which is not open to a Court of less dignity or open to appeal.
In 1913 another case of importance was before the Court of Appeal, and he notes: —
I read Williams’ judgment—the result of our consultations. It is an excellent piece of work and sounds convincing. Whether it will commend itself to their Lordships of the Privy Council I can’t say. They are much given to
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make laws to suit English ideas on property and conservatism.
The Judicial Committee, being human, sometimes nods. The effect of a decision given by it in 1879 in an appeal from the New South Wales Court was to impose upon a municipality liability in damages to a traveller injured through accident arising out of the non-repair of a road under the Municipality’s control. The liability of such a body in England is to the Crown, on indictment, for breach of duty to repair and is a survival from feudal times when the men of the Hundred in return for the benefit of " the King’s Peace ” incurred the obligation to repair “ the King’s Highway.” The liability to damages arises only in case of misfeasance and is based on a different legal principle. This distinction apparently the Judicial Committee overlooked. Denniston, J., comments thus :
1894, May: A very interesting case reserved from Taranaki in which the Full Court sat to determine the vexed question of liability of local bodies for non-repair of roads. It seems pretty clear that the case of the Bathurst Municipality, on which the Colonial Courts have always acted, was wrongly decided and has been over-ruled by the Picton case decided by the Privy Council last year. A discussion over the judgment I had written in the Taranaki case: I insisting on retaining the expression of opinion that the Bathurst case was over-ruled by the Picton case. Prendergast, C. J., and Richmond wishing to avoid the point: Williams concurring with me. I thought it essential that the highest Court in the Colony should not leave its opinion on such a point in doubt. Finally it was arranged that I should deliver the judgment as my own, and let the others express their individual opinions on the
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point.
Finally, we pass on to consider what after all is the outstanding feature of his character, the quality whereby he earned an enduring place in the hearts of his fellow countrymen: his humanity.
There may have been Judges, though not many, of greater legal culture. There certainly have been none surpassing him in mercifulness of disposition.
In an address on Punishment (a) delivered by him after his retirement, he says:—
The Judges in this Dominion are not, I am sure, less awake to the horrors of this class of cases —offences against women and children —than are others, but you will find that in very few cases has the lash been invoked. I have myself never imposed it.
I shall never forget the fervency of an old and experienced retired head gaoler, who stopped me in the street shortly after my retirement and said : “ There is one thing we shall “ never forget about you, Sir. You have never “ ordered flogging. You don't know what it “ means to us.”
And in the same address he says:— Grand Juries have only too frequently before them, all at the same time, a number of cases of this kind; they see and hear the victims and naturally they are boiling with a righteous indignation, and bring in a presentment that every offence against women and children should be punished by flogging. They do not realise that they are criticising the action of judges, already entrusted with the power to inflict this punishment at their discretion.
(a) “ Punishment. The State versus the Criminal.” An address delivered before the Workers’ Educational Association, Christchurch, November 2nd, 1918; printed in pamphlet form.
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In February, 1918, he occupied a seat on the Bench alongside the Judge who was presiding at the trial of a bushranger and murderer. This, it is believed, is the last time he was present at a trial, and this is his journal note: —
I slipped away as soon as the jury had retired as I had no wish to wait for the inevitable denouement at which I had, too often previously, appeared as a principal.
The journal contains numerous references similar in tone to the following:—
1913: Sentenced a number of prisoners who had pleaded guilty in the lower Court. Embarrassed by my usual difficulty of avoiding, if possible, making habitual criminals out of possibly decent citizens in the future without encouraging crime by undue leniency. But the general idea of our legislation has recently been on the lines of dealing leniently with first offenders.
1913: In the last case the accused, who had been a Civil Servant and a very much respected man with a family and whose friends had, at great loss, found the amount of his peculation, pleaded guilty to eight charges of embezzling Government moneys, about £l6O. I should have liked to let him off on probation, but the practice has been laid down of always punishing public peculations, so I had to send him to gaol. These are the things which make a judge’s life miserable.
February, 1914; The criminal work with it* painful duty of sending, in many cases, decent men who have yielded to temptation to gaol, with a certainty that neither they nor society will gain by it, tries me very much, and I have spent sleepless nights over them more than once.
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The Great War came, and, with it, sadness and increasing anxieties.
Journal; August, 1914: Sent this morning to a man I had sentenced to three months’ imprisonment for altering a certificate of his school standard to get Government employ. He was a first offender with an excellent character. He had asked for leniency having a wife and five young children. I would have ordered him to come up for sentence when called upon but he had given evidence and denied the offence. I now told him that as the sentence had not been formally recorded, I could reconsider it, and as I thought this moment, when there was a severe time of depression before us, was not a good one to deprive a wife and young children of their breadwinner and throw them on to the public, I would now order him to come up for sentence when called upon. He seemed very grateful.
1915: (Sentencing A.B. for embezzlement): There is, however, in your case, a special consideration arising out of the present condition of public affairs. You have been serving for some little time in a Battery of the New Zealand Field Artillery now in training for services at the seat of war.
I entirely agree with the view reported to have been expressed by a Melbourne Judge, in reply to a plea of a convicted criminal to be allowed to enlist, that the King’s uniform ought to stand not only for valour, but for honesty, uprightness, and good citizenship, and that it would be a misfortune to compel honest and reputable men to associate with criminals. We, too, are sending our best to fight for the Empire. But in your case there is the fact that with full knowledge of the facts your applica-
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tion is endorsed by your commanding officer, who expressly states that he has permission from the Camp Commandant to retain you in the ranks should you not be sentenced to imprisonment, and that your comrades, the men of your Battery, are willing to have you back on those terms. That being so, my own inclination was to give you the opportunity open to you. Before deciding, I have, however, thought it advisable to submit the facts to my brother Judges. I have received replies from all of these except one, with whom I have not been able to communicate without further delay. They are all of opinion that you should be given the opportunity.
Prisoner was ordered to come up for sentence when called upon.
In his address on “ Punishment—The State versus The Criminal,” he combats the views of a great criminal lawyer, the author of a History of the Criminal Law of England, the late Sir James Fitzjames Stephen, a strong advocate of retribution—in other words, vengeance—as a motive and end of punishment.
Sir John Denniston quotes the following passages from Stephen’s history:—
“ Great part of the general detestation of “ crime which happily prevails amongst the “ decent part of the community in all civilised “ countries arises from the fact that the com- “ mission of offences is associated in all such “ communities with the solemn and deliberate “ infliction of punishment whenever crime is “ proved. The mere general suspicion or know- “ ledge that a man had done something dis- “ honest may never be brought to a point, and “ the disapprobation excited by it may in time “ pass away, but the fact that he has been con-
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“ victed and punished as a thief stamps a mark “ upon him for life. In short, the infliction of " punishment by law gives definite expression " and a solemn ratification and justification to “ the hatred which is excited by the commis- “ sion of the offence, and which constitutes the “ moral or popular as distinguished from the “ conscientious sanction of that part of moral- “ ity which is also sanctioned by the criminal “ law. The criminal law thus proceeds upon " the principle that it is morally right to hate "criminals (that is a big jump from detestation “of crime), and it confirms and justifies that “ sentiment by inflicting upon criminals punish- “ ments which express it. I am also of opinion “ that this close alliance between criminal law “ and moral sentiment is in all ways healthy “ and advantageous to the community. I think “it highly desirable that criminals should be “ hated, that the punishments inflicted on them “ should be so contrived as to give expression “ to that hatred, and to justify it in so far as “ the public provision of means for expressing “ and gratifying a healthy natural sentiment “ can justify and express it.” Later he says : “ One of the arguments in favour of exemplary “punishments—death, flogging, and the like—- “ is that they emphatically justify or gratify “ the public desire for vengeance upon such “ offenders.”
After a very exhaustive examination of the subject and refutation of Stephen’s argument, Sir John concludes:—
You may think that I have occupied much of your time in stating commonplaces and truisms, except where I have been propounding social and ethical heresies. But I have as the result of not far from half a century of experi-
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ence at the Bar and on the Bench in the administration of criminal law come to the conclusion I have tried to express to you, that a very large proportion of those whom crime brings within its meshes are not criminals by instinct or by deliberate choice, and that, in any case, all of them are what heredity and the conditions into which they were born and in which they have lived, have made them, and therefore that, though it is not only the right, but the duty of society to enforce by every legitimate deterrent and preventive means within its power, the laws on which its existence depends, and though the natural detestation of crime warrants and confirms the exercise of these methods, the criminal himself should be considered more as a subject for pity than for hatred and revenge.
We are living in momentous times, and from any point of view there are more momentous times before us. As to these, the veteran, Frederick Harrison, says, in the July “ Fortnightly Review”: “When bloodshed and de- “ struction have ceased, as I firmly trust, in " the triumphant victory of Right, there can be “no immediate era of peaceful settlement, “ international communion, or social harmony. “ The upheaval of States and Orders, of sexes, “ of habits, and beliefs, has been too deep and "universal; the passions have been too fierce “ and bitter; the scars too cruel; the hopes, the “ fears, the surprises, the bewilderment have “ been so beaten into the soul that hardly one “ generation can efface them.” But he prophesies, as the result, a renascence of humanity to a common life of peace and progress—social, industrial, moral and spiritual—far greater than any previous renascence in the
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history of the world, but through dire sacrifices and agonies—material and spiritual. Among these questions—these issues—will be the question of the relations and duties of society to crime and the criminal.
The most effective method of diminishing crime is to strike at its source. No particular class has a monopoly of any kind of crime. There are crimes which are more frequently associated with the well-to-do and educated classes, but the majority, apart from heredity —and changed conditions may to some extent in time amend the race—are largely the offspring of ignorance, dissipation, and want. When it can be said that we individually and collectively have done all that is possible in the way of improving and perfecting our social conditions—have done our best to secure for every child a fair introduction into life, a reasonable education, decent surroundings, and as far as possible equality of opportunity in the struggle for existence, we shall be at least in a better position to discuss the right of society to punish revengefully. Until that millenial period shall arrive, I cannot but think our proper attitude to the criminal is that laid down by Him Whom all of us, whatever our creed, look upon as a great Teacher: “ He that is without sin let him first cast a stone.”
On that last utterance of his this chapter can fittingly end. Within a few months he was dead.
Personal and Literary Characteristics
Sir John Denniston, for reasons mentioned in his Diary, had very few intimate friends outside the circle of his family. When he became a Judge he deliberately “ kept himself to himself,” because his high sense of the strict impartiality demanded from one in his position made him feel that if he had few personal friends there was less chance of one of them being concerned in a case coming before him in his judicial capacity. He made up his mind not only to be strictly impartial, but, as far as possible, to keep himself free from any possible imputation of being swayed by interested motives in his decisions. Most of his acquaintances, even on the Bench, thought that on this point his sensitiveness carried him too far. Certain it is that in his latter days he regretted the comparative isolation in which he found himself, and the friends he had could not but feel touched at the pathetic appreciation he showed for the slightest manifestation of the affection and esteem in which he was deservedly held by those who got to know him. Personally, I regarded it as a great privilege to be admitted to the select circle of those to whom the distinguished Judge gave his confidence and honoured with his friendship. I gladly comply there-
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fore with the rquest that I should add a few words of personal recollection to the Memoir which owes its origin to the filial affection of Sir John Denniston’s youngest son.
It must not be supposed, because Sir John had only a small number of intimate friends that he was at all haughty, “ stand-offish,” or even reserved in his disposition. He was kindly, considerate, and approachable to the very humblest who sought his assistance in trouble. There is one significant extract in the Diary which describes the visit of “ a young fellow, whose only recommendation was that I had sentenced him to three months’ imprisonment from which he had just emerged. Singular that so many come to me with that claim.
.... Gave the young fellow some money to take him to the Coast, which he promised to return. Hope it won’t be the same as on a previous occasion, when the applicant on a subsequent arrest boasted of having ‘done the Judge.’”
In private intercourse Sir John was so sensitive himself, and so fearful of hurting the feelings of others that it was difficult to realise that in his practice at the Bar he was not only a terror to evil-doers, but that even those who wished to do well stood in awe of his fiery invective. One reason why he may have appeared reserved to those who did not know him was that in later life he suffered from a curious inability to recognise faces. More than once when we have been together in the Club he has asked me the name of the man who had just entered the smoking-room, and bowed to him, and I had to tell him it was one of the learned counsel who had often appeared before him in Court. He was perfectly aware of this defect, and it made him painfully anxious lest he should mistake a perfect stranger for an acquaintance, or—what was worse in his eyes—lest he
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should fail to recognise someone whom he ought to notice, and who would feel hurt at an apparent slight.
Sir John and I were near neighbours when he came to live on the Cashmere Hills, and it was delightful to see the pleasure he took in his new house, and in the garden, and how thoroughly he enjoyed his home life, and the leisure to browse among his books. Above all it was charming to note the affection he had for his devoted wife, how he loved to quiz her, and how she liked being teased by him. He told me more than once with great pride that he believed she was the most popular woman in Christchurch, and I was able conscientiously to reply that I thoroughly agreed with him. Lady Denniston, who did not long survive her husband, was one of those natural, unassuming women, who spend a large part of their time in performing acts of kindness for the benefit of other people, and regard it as only in the natural order of things that they should do so. Her unvarying good nature, and absolute freedom from anything approaching selfishness or suspicion of others were the more remarkable from the fact that she was very deaf—an infirmity notorious for its tendency to make its victims reserved, if not morose and suspicious.
It may be added that Lady Denniston came from a family whose kindliness and hospitality were proverbial. When Dr. Morrison, the famous Pekin correspondent of “ The Times,” and subsequently Adviser to the Chinese Government, passed through Christchurch a few years ago, he expressed a wish to see Lady Denniston, and accordingly it was arranged that the Judge and his wife should meet him at my house. He then told her that he had long been wishing to tell her how kind her brother, Mr. Jack Bathgate, had been to him in India.
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It appeared that in his young days, before he became famous, Morrison, after one of his exploring expeditions, landed in Calcutta, ill, and practically penniless. He was a stranger to Bathgate, but he was an Englishman, and ill, and so that Good Samaritan took him into his house, procured the best medical advice and nursing for him, sent him to a sanatorium to convalesce, and finally helped him to get back to Australia. Morrison added that he had been able to repay the monetary part of his debt, but the personal kindness he could never repay, and would never forget. It is hard to say whether Lady Denniston or the Judge was the more deeply moved by this story, but, naturally, it gave both of them a great deal of pleasure.
It was on the Shirley Golf Links that what had been merely an acquaintance between Sir John Denniston and myself ripened into friendship. Neither of us was able to achieve even the most modest ambition to play a decent game. The Judge confided to me that when I joined the Club, of which he was already a member, he was delighted, because he thought, “At last there is somebody whom I am sure to beat.” When, as the result of lessons from the professional I was able to turn the tables on him, he notes the fact in his Diary, and registers his determination to take lessons also, with the view of improving his game. The truth is that neither of us had the golfing temperament. “ Conscious as we are of each other’s imperfections,” I should say that certainly the Judge was not of the stuff from which great golfers are made. His quick, impetuous spirit could never be sufficiently tamed to enable him, like Earl Balfour, to spend hour after hour in practising how to get the ball out of a sand bunker. His eagerness to “ get on with the case,” which was so apparent in his legal work, affected him physically to the extent that he was unable to keep down his head
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until after he had hit the ball—he instinctively looked up to see where it was going. But I don’t think we enjoyed the game any the less because we seemed to make no progress with it. We enjoyed the fresh air and exercise, and I for my part enjoyed the Judge’s witty observations upon men and things. Perhaps the fact that we put this social intercourse first was one reason why we remain undistinguished in the annals of golf. But in other respects Sir John was like Mrs. Battle, he believed in the rigour of the game. He would accept no concessions himself, and insisted on strict adherence to the rules, the legal niceties of which evidently appealed to his trained intellect. Playing a leisurely game, we naturally gave way if we found a faster pair following us, but on one occasion our usual invitation was forestalled. We were just holing out on about the eighth green when we noticed two young men following us, and decided to let them drive off first at the next tee. Just at that moment a ball came bouncing on the green, and presently one of the young men came up and exclaimed exultingly, “ By Jove, I’m on the green!” “Yes, sir,” rejoined the Judge, who had been waiting for him; “Yes, you were very ear-r-r-ly on the green, sir ” —the Scotch trill of the r’s adding to the impressiveness of the rebuke. Sir John was very popular with his fellowgolfers, and was elected President of the Club—a distinction which gave him evident pleasure.
Our conversations on the links ranged over every conceivable subject, with one marked exception. So long as he continued his work as a Judge of the Supreme Court we never talked about the cases which came before him, or the members of the Bar. I, of course, never broached such topics, neither did he. He was interested in what I told him about politics, and did not hesitate to express his own views, although nothing would have in-
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duced him to depart from the accepted rule that a Judge should observe strict neutrality as regards party politics in his public utterances.
The judicial life and work of Mr. Justice Denniston have been so fully dealt with by Mr. S. G. Raymond, K.C., that it would be presumption on my part to do more than add that he has stated most accurately, so far as I was able to gather from our conversations, the reasons for the leniency shown by the Judge in dealing with prisoners. His naturally humane disposition led him to give every chance of reformation to an offender, who, he thought, might still have some good left in him. He did not deny that punishment should be deterrent, but he attached far more importance to reformative effect. In this respect he anticipated by some years the policy which has been deliberately adopted, and with good results, as the settled policy of prisons administration in New Zealand. The general public could not, however, understand his treating with what they thought to be undue leniency cases of sexual outrage. The popular clamour was for flogging, and even in bad cases, for the mutilation of the offenders. The Judge, after long experience and consideration, held that flogging was a punishment which should find no place in any civilised penal code. He could not bring himself to accept the doctrine of vindictive punishment, even in extreme cases. He made great allowance for the influence of heredity and environment, but he cordially agreed that dangerous criminals should be so dealt with as to protect society from a repetition of their crimes. He thus anticipated the views of the Committee appointed by the New Zealand Government in 1924 to enquire, inter alia, into the treatment of sexual offenders. The Committee reported against flogging, but recommended the indeterminate sentence so that the most dangerous criminals of the class referred
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to might be kept in lifelong restraint
Sometimes, but rarely, our conversation turned to the question of religion, and the bourne from whence no traveller returns. One hardly feels justified in repeating such conversations, beyond saying that my old friend had long ceased to be bound by the calvinistic views in which he was trained in early youth. These were questions, he held, on which no one could or should dogmatise. He contented himself with charity towards the views of others, and with steadily doing the duty which lay before him, not seeking to pierce through the veil which hides from us the hereafter. He, the merciful and upright judge, in his dealings with his erring fellow men, might well have asked himself, and contented himself with the implied assurance, “ Shall not the Judge of all the Earth do right ?”
Conversation with Sir John was not easy. His mind was so quick in apprehension, so agile in its movements, that he knew what you intended to say before the sentence was completed, and he would proceed to discuss your views almost before you uttered them. It was very delightful to listen to the clash of wits and the interchange of repartee, when he met with a kindred spirit with a mind and tongue as quick as his own. I particularly remember a small luncheon given by Capt. Percy Atkin, British Commissioner at the International Exhibition held in Christchurch. The only guests were the Judge, a clever and quick-witted King’s Counsel (still living), who was an old friend of the Judge, and myself. Captain Atkin and I found ourselves in the position of amused and delighted listeners to a brilliant interchange of chaff, repartee and reminiscence between these two accomplished talkers. Years afterwards, when I met our host at his charming home in Kent, I found he retained
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a vivid recollection of what he declared to be one of his most delightful experiences in New Zealand.
Not the least interesting of our talks upon the Links consisted in an interchange of ideas about the books we had been reading. The Judge was an insatiable reader of all kinds of books, including a fair amount of French literature. He differed from most omnivorous readers in the respect that he remembered a great deal of what he read. He was very fond of fiction and the drama, but as so often happens as the shadows lengthen, his chief delight in late years was in works of biography. He adopted the excellent plan of writing in his diary a summary of the most important works he had been reading, adding in many cases thumbnail criticisms of the author’s style and matter. These show the catholicity and soundness of the Judge’s tastes. Not infrequently he was able to detect errors in the editor’s notes to a standard author, especially when these were dealing with the political and social history of the periods with which he had make himself familiar. Among his papers there was found an essay entitled, “ Why we read Fiction,” evidently read by him before some literary society of which he was a member. It shows a great grasp of the masterpieces of fiction and develops with considerable ingenuity the view that the characters drawn by the greatest novelists are in a sense as real as the portraits which historians have drawn of actual personages—that in many cases they are even more true to nature.
Sir John’s father, the late Mr. Thomas Denniston, took to journalism in his later life, and as Editor of the “ Southland Times ” made that paper known throughout the Dominion for the clear thinking which characterised the leading articles and the chaste and dignified English in which they
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were written. Sir John was evidently pleased when I told him how much these articles were admired by contemporary journalists, and he then recalled his own brief excursion into journalism when he was a young man employed in a bank on the West Coast. He was appointed local correspondent for the “ Canterbury Standard,” a paper which has long ceased to exist. The letters which he sent to that journal give an idea of what life on “ the Coast ” was like in the ’sixties. They are brightly written, and the slender material available in the shape of news is handled with a deftness and lightness of touch which an experienced journalist might have envied. It is not surprising that the paper accepted the resignation of its correspondent with great regret.
In his work upon the Bench Sir John laboured as conscientiously over the phrasing of his judgments as he did to satisfy himself of the soundness and impartiality of his decisions. The legal aspects of the judgments are dealt with by Mr. Raymond, but perhaps a layman may be permitted to express appreciation of the lucidity of the language in which these judgments are couched, and the obvious care taken to make them as concise as possible. These were the qualities which Sir John Denniston especially admired in Sir Joshua Williams’s judgments, and it will be generally agreed, I think, that his own fall not far short of those of his distinguished colleague.
Although Sir John Denniston welcomed the respite from the constant strain of judicial work, and revelled at first in his unaccustomed leisure, it was soon apparent that he would welcome further opportunities of doing some public service. He told me he would very much like to be in the Legislative Council, and without telling him anything about it I did what I could to bring about the fulfil-
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ment of his desire. Undoubtedly his clear brain and legal experience would have been of great value in the Statutes Revision Committee, about which the public know very little, but where the most important work of the Council is done. The Government, however, decided upon a knighthood as the most appropriate recognition of his services. Doubtless he would have found it difficult to adapt himself to the system of compromise so often found necessary in the settlement of political questions.
It so happened that I was in England when a telegram in “ The Times ” brought me the news of the death of my dear old friend and neighbour. Only a few days before I had received a long letter from him in which he told me of his work as Chairman of the Royal Commission to enquire into the Influenza Epidemic, of the heavy and strenuous labour it involved, and finally of attacks which had been made upon him in connection with the findings of the Commission. It was plain to see that he was very sore and depressed, and indeed that the whole business had been too much for him. It is now generally recognised that the Commission performed a great public service, its principal recommendations were adopted, and will doubtless result in the saving of many lives.
New Zealand has many examples of what are known as self-made men, who, with few external advantages, by dint of their own ability and industry have raised themselves to positions of distinction. Among them Sir John Denniston will long be remembered as one whom success never spoiled, who with unvarying modesty in respect of his own merits, retained to the last an almost feminine sensitiveness and delicacy in regard to the feelings of others, yet showed in matters of principle an unconquerable will, and an inflexible determination to do what he believed to be right.
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Bibliographic details
APA: Denniston, John Edward, Sir. (1926). Memoir of Sir John Edward Denniston, Judge of the Supreme Court of New Zealand. Gaskell & Co.
Chicago: Denniston, John Edward, Sir. Memoir of Sir John Edward Denniston, Judge of the Supreme Court of New Zealand. Christchurch, N.Z.: Gaskell & Co., 1926.
MLA: Denniston, John Edward, Sir. Memoir of Sir John Edward Denniston, Judge of the Supreme Court of New Zealand. Gaskell & Co., 1926.
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25,014
Memoir of Sir John Edward Denniston, Judge of the Supreme Court of New Zealand Denniston, John Edward, Sir, Gaskell & Co., Christchurch, N.Z., 1926
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