I fear I've been having one of my occasional bibliographic spasms. Several years ago while I was mired in research for Maps: The Uncollected John Sladek, friends developed a tendency to remember appointments in distant locations at the first hint of my conversational gambit about rare Sladek material lurking in forgotten theatre programmes or the restricted stacks (a term which here means "tit magazines") of the Bodleian Library.
This time, I made the mistake of idly wondering just how many of A.P. Herbert's once famous Misleading Cases weren't collected in the two big omnibus volumes Uncommon Law and More Uncommon Law. From the puzzled faces in the third row of the jury box, it seems that some background information could usefully be dumped here. "As you know, Professor ..."
A.P. Herbert – later Sir Alan Herbert – was a barrister who never actually argued a case in court, a regular contributor to Punch magazine for sixty years since 1910, the lyricist of countless forgotten musical comedies, a crusader against hideous jargon (special Thog marks were awarded to "deratization" as a form of rodent control), a novelist who slipped into the SF Encyclopedia on the strength of one barely-speculative satire of psychological testing, and from 1935 to 1950 a Member of Parliament.
One of those reminders of mortality that come to authors rather too frequently is the fact that although Herbert's fiction and verse have faded into obscurity, in his day he collected a range of glowing endorsements from such pundits as J.M. Barrie, Hilaire Belloc, Arnold Bennett, John Galsworthy, Rudyard Kipling, Field-Marshal Montgomery and H.G. Wells. "You are the greatest of great men," Wells burbled: "You can raise delightful laughter ..."
Not that "A.P.H." – as he signed his Punch skits – had too many illusions about literary glory. As noted in one of his fictitious legal opinions:
"Clothes do not make the gentleman," said Lord Mildew in Cook v. The Mersey Docks and Harbour Board (1896) 2 A.C., meaning that a true gentleman might be clad in the foul rags of an author. ("Is a Golfer a Gentleman?")
His long series of imaginary law reports or Misleading Cases began in Punch in 1924. The various daft legal actions usually involve Herbert's alter-ego Albert Haddock, whose surname had been invented for occasions when "A.P.H." wanted to refer to himself in comic articles. ("[H]is middle name is Percival, I think," wrote Sir Alan Patrick Herbert in 1970. [[However, a correspondent points out that in the 1961 case "Cheap Literature", Haddock is reported as having stated on oath that his middle name was Patrick. Memory is frail.]]) Armed with his legal training, Herbert crafted many word-perfect pastiches of judges' English while injecting subversive or outright silly content. One of Haddock's many clashes with the Inland Revenue provides a memorable image of official intrusion:
The point at issue is whether the appellants are entitled under the Land Tax Clauses of the Finance Act, 1931, to enter upon the window-box of the respondent, Mr. Albert Haddock, and there remain for the purposes of measurement and assessment on the neglect or default of the respondent to supply particulars of his window-box upon the Land (Expropriation) Tax Form.
The point appears to be short and simple, but this Court does not intend to consider it. ("Why is the House of Lords?")
The reason for not considering it leads to the touch of polemical content that's generally found beneath the sugar coating of a Misleading Case. This time around, the Court of Appeal refuses to waste its massed brain-power on the legal niceties since ...
Whatever our decision, it is certain that an indignant appeal against it will be directed to the supreme tribunal, the House of Lords, since the resources of the Crown are as inexhaustible as its impudence, and the blood of Mr. Haddock is evidently up.
Herbert was especially pleased when one of his cases was reported as fact or earnestly discussed in learned legal journals. This couldn't have happened, he bragged, to the very much sillier courtroom dramas of Beachcomber's Mr. Justice Cocklecarrot – still remembered thanks to his hijacking as a regular character in Private Eye. No doubt there are young readers who fondly believe that the Eye invented Cocklecarrot.
"The Negotiable Cow", in which Haddock irritates the Inland Revenue by presenting a cheque written on the animal in question, has virtually become an urban legend with its own Wikipedia entry. "Pay the Collector of Taxes, who is no gentleman, or Order, the sum of fifty-seven pounds (and may he rot!)." When the US Memphis Press-Scimitar reported the cow case as news in 1967, the author was slightly miffed by the date assigned to his creation: "In the 19th century an Englishman named Albert Haddock got mad at his local tax collector ..."
Haddock also likes to write cheques on eggs ("The Egg of Exchange"), and on one occasion uses the Thames to transport a more conventional payment as a message in a bottle. In the resulting lawsuit, the judge deplores the Inland Revenue's lack of initiative in ignoring Haddock's helpful phone call that told them when his bottle would pass their lair in Somerset House, and again in the opposite direction thanks to the flood tide, and again in the small hours on the ebb ("The 'Bottle' Case"). Herbert loved the Thames and frequently mocked the laxity of detective novelists who tended to forget that below Teddington, the river is tidal.
Sometimes, however flawless the legal diction, a touch of Cocklecarrot's lunacy crept into the Misleading Cases:
Lord Light, L.C.J.: This is in substance an appeal by an appellant appealing in statu quo against a decision of the West London Half-Sessions, confirming a conviction by the magistrates of South Hammersmith sitting in Petty Court some four or five years ago. The ancillary proceedings have included two hearings in sessu and an appeal rampant on the case, as a result of which the record was ordered to be torn up and the evidence reprinted backwards ad legem. With these transactions, however, the Court need not concern itself, except to observe that, as for our learned brother Mumble, whose judgments we have read with diligence and something approaching to nausea, it were better that a millstone should be hanged round his neck and he be cast into the uttermost depths of the sea.
The present issue is one of comparative simplicity. That is to say, the facts of the case are intelligible to the least-instructed layman, and the only persons utterly at sea are those connected with the law. ("Is It a Free Country?")
All these terrifying proceedings have followed from Haddock's rash act of jumping off Hammersmith Bridge for a bet, and attempting to swim ashore only to be arrested by river police. No one is quite sure what to charge him with: he's accused of causing an obstruction, being drunk and disorderly, attempting suicide, conducting the business of a street bookmaker, and weirder crimes. Nowadays they'd surely throw in suspicion of terrorism. Having rebutted all the above, Haddock makes the fatal error of adding that this is a free country and a man can do what he likes if he does nobody any harm. The Lord Chief Justice pounces on this foolishness:
... it is like the thirteenth stroke of a crazy clock, which not only is itself discredited but casts a shade of doubt over all previous assertions. [...] It cannot be too clearly understood that this is not a free country, and it will be an evil day for the legal profession when it is. The citizens of London must realize there is almost nothing they are allowed to do. [Long list of instances omitted here.] It is not for me to say what offence the appellant has committed, but I am satisfied that he has committed some offence, for which he has been most properly punished.
This is another judgment which, to Herbert's glee, was solemnly quoted in legal commentary – in America, with the shocked remark "No such opinion could be written by an American court."
(By the way, John Brunner was particularly fond of this Case and suggested that The Thirteenth Stroke would be a great title for a Langford book debunking pseudoscience. I never summoned up the enthusiasm, though.)
A further much-quoted judgment makes a similar point about our vaunted British freedoms:
It was held as long ago as 1887 by Mr. Justice Charles that the only right of the subject in a public street is to pass at an even pace from one end of it to another, breathing unobtrusively through the nose and attracting no attention. ("Free Speech – Why?")
Many of the barbs are aimed at the tiresome little laws which were also campaigned against in the real world by A.P. Herbert, MP. Regulations about having to order food if you wanted a drink at certain hours are brilliantly circumvented by Haddock's invention of low-calorie, returnable meals in a Case titled "The Indiarubber Sandwich". Even worse official silliness prevailed when the early Cases were written, and I confidently expect certain readers to blench or swoon in horror at the following:
By the wise ordinances of our land it is unlawful to buy or sell chocolates after the hour of half-past nine o'clock in the evening [...] It is not for the subject to question or comment on these provisions. It is about the hour of half-past nine that the thought of chocolate first enters the minds of large numbers of the citizens, and it is right and proper that at that precise hour the supply of chocolate should be sternly cut off by a maternal Government. ("Exploits of Boot")
Here the judge's and the author's deepest disgust is reserved for Constable Boot, who repeatedly wheedles susceptible barmaids into selling him chocolate at 9:35pm, leading to prosecution for the management and dismissal for the unwary young lady. With Boot in the dock, Mr. Justice Swallow allows himself a splendid tirade against "the repellent figure of the agent provocateur" – adding that "If the public cannot be prevented from enjoying themselves in an honest and straightforward manner they had better be allowed to enjoy themselves."
Mr. Justice Swallow, by the way, was selected from Herbert's array of strangely named judges and Law Lords as the continuing character to be played by Alastair Sim in the three BBC series of Misleading Cases that were broadcast in 1967, 1968 and 1971. Roy Dotrice took the part of Albert Haddock; one of the scriptwriters was Henry Cecil, who had written a string of highly eccentric comic novels revolving around the courtroom – Brothers in Law, Friends at Court, Sober as a Judge, etc – and in real life was a judge, Henry Cecil Leon. Too much information, I know.
Yet another of Herbert's favourite hobby-horses was the peculiar English legal distinction between libel (written or printed) and slander (spoken), with the former being regarded as very much more wicked.
The law of libel is exceedingly complicated and wholly unintelligible.... His Lordship here gave a brief explanation of the law of libel, beginning with the Star Chamber. ("Is 'Highbrow' Libellous?")
Of course Haddock and other tireless litigants worked their hardest to introduce new complications. Is it libel or slander when the defamation is conveyed by a gramophone record, as the House of Lords is asked to decide in "The Lawyers' Dream"? Then there's the problem of skywriting, as in "End of a Nonsense": transitory like speech, because it fades away, but not that transitory.... Nautical flag-signals are employed in "Slander at Sea", raising the question of whether it's defamatory to keep sending – preceded by the distinguishing flags of the target vessel – the signal-group for "Have dead rats been found on board?" Haddock's finest hour involves libel by crossword ("A Cross Action"), in which it's the hapless puzzle-solver who is lured against his will into entering libellous answers to clues about public figures:
Sir Antony Dewlap, K.C.: ... Say to me, milord, "A bibulous bishop in four letters", and I do not think particularly of the Bishop of Moat, the aged Bishop of Bowl, or even of Bishop Loon. Each of these names will enter my mind, only of course to be indignantly dispelled. [...] But take the thing a stage farther, milord. Take the "Down" clues. Take No. 7.
... which most unfortunately eliminates two of the named bishops, leading the solver to a dreadful hypothesis. An interesting related judgment is cited in the Gramophone Case ("The Lawyer's Dream"):
In Silvertop v. The Stepney Guardians a man trained a parrot to say three times after meals, "Councillor Wart has not washed today." It was held that this was a libel.
Several later Misleading Cases refer to this precedent in terms suggesting that an awful lot of people had searched for it in law libraries, without success, and had sent plaintive enquiries to the author. Herbert eventually inserted a mendacious explanation that the original case report had been destroyed in a fire. He also took extreme measures to leave the Gramophone Case unresolved by the House of Lords. After the Lord Chancellor, Lord Lick, Lord Arrowroot and Lord Sheep have split fifty-fifty on the decision between libel and slander (the latter three all saying "I do not agree ... The law is clear"), it's up to the final Law Lord to make history:
Lord Goat: The law is clear – (At this point, however, his Lordship suffered a heart-attack, perished, and was removed.)
In "Not a Crime", the final case collected in Uncommon Law, Herbert's usual high spirits fade although the satirical edge is still present. Mr. Justice Wool – temporarily presiding over the Divorce Court in the early 1930s – promises an inattentive barrister "a judgment which, in an hour or two from now, will, I think, extract from you at least a reluctant titter of admiration ..." What follows, though, is a closely reasoned tirade about the marriage contract, which in "barbarous" English law could be dissolved if one and only one party were unfaithful. No naughty extramarital behaviour at all? In that case:
... the judge would have been compelled to answer, "Highly interesting, I am sure. But neither of you has committed misconduct. Go away and commit misconduct, one of you, and then come back and tell us all about it. [An important warning, though ...] If both commit misconduct the marriage will stand. Only one of you must do this thing, and you must not consult together which one of you it is to be; for that will be collusion, connivance, or conduct conducing, and hateful to the law. Good morning."
Complications duly ensue from well-meaning efforts by both husband and wife, leading to a situation whereby:
Either Mr. Pale has committed misconduct, in which case the couple cannot be divorced, or he has not committed misconduct, in which case he can be sent to prison for pretending that he has.
Special loathing was devoted to the activities of the King's Proctor, an official who after the tentative granting of a divorce ("decree nisi" was the term) was allowed six months to dig up evidence of impure behaviour by the "innocent" partner either before or after the decree – which could set everything back to square one. Hence this footnote to "Exploits of Boot":
And see Fairway, K., v. Fairway, T.M., and Baxter (King's Proctor showing cause) (1929). In this case the successful petitioner for a decree nisi had obstinately retained her virtue for five of the six statutory months, which, for greater security, she passed in a monastical institution. Constable Boot, however, disguised as a St. Bernard dog, obtained admission to the nunnery and ultimately to her affections.
A.P. Herbert went on to write a long and not at all humorous novel about an even more harrowing divorce imbroglio, Holy Deadlock (1934). "I've read your Holy Deadlock. It made me sick," wrote Rudyard Kipling, presumably referring to the portrayal of injustice rather than the prose. When Herbert stood for Parliament in 1935 his personal manifesto included reform of the divorce laws. He did it, too.
His autobiographical episode The Ayes Have It (1937) tells the whole story, from campaigning to become one of two MPs representing Oxford University (this back door into the House of Commons was abolished in 1950), getting elected by a transferable-vote process which makes the mechanics of TAFF and Hugo balloting seem childishly simple, introducing the Marriage Bill in his maiden speech (Winston Churchill: "Call that a maiden speech? It was a brazen hussy of a speech. It was the most painted harlot of a speech that ever presented itself before a modest Parliament."), and eventually seeing what was now the Matrimonial Causes Act become law in 1937. As Mr. Justice Wool repeatedly remarked in the judgment quoted above, "Gosh!"
The Misleading Cases continued to appear sporadically until at least the late 1960s. A science fiction link finally emerged in 1963 with "Reign of Error?". Here a celebrated item of 19th-century case law (Rylands v. Fletcher, 1868: "The person who for his own purposes brings on his lands and keeps there anything likely to do mischief if it escapes, must keep it at his peril ...") is adapted to the modern phenomenon of a computer which, as computers do, prints out such misleading reports as MR HADDOCK'S ACCOUNT IS OVERDRAWN IN THE SUM OF £51,000 7s. 3d. and goes on to add gratuitously that THE MARKET VALUE OF THE SECURITIES HE HOLDS AT CURRENT PRICES IS £2. 0s. 8 ½d and WHAT IS MORE, HE OWES THE INLAND REVENUE £159,000 6s. 2d. The clearly sentient computer appears in court and asks for legal aid, while counsel pleads that the machine's functions were impaired by outside circumstances:
A number of citizens in the neighbourhood had incautiously decided to use their electrical cooking appliances: and the astonished Electricity Board was compelled to reduce the voltage ...
Now, about that bibliography. If you want to sample the most famous Misleading Cases, the book to search for is Uncommon Law (Methuen 1935; reissued 1969 with a new introduction by Herbert). This collects 66 Cases, which unwary students may be tempted to identify with the 66 previously published in three volumes as Misleading Cases in the Common Law (Methuen 1927), More Misleading Cases in the Common Law (Methuen 1930) and Still More Misleading Cases (Methuen 1933). Unfortunately completists need the earlier books too, since not only were many Cases revised for Uncommon Law and often confusingly retitled, but nine – some from each volume – were dropped and replaced by newer ones.
I suspect that one of the omissions, "Sad Case of Mr. Justice Wool" from More Misleading Cases, was made for reasons of political tact. It's a libel action with disgruntled authors suing the British publishers of the Catholic Index Librorum Prohibitorum, for suggesting that their books listed therein "have an immoral or irreligious tendency". The irascible Wool – in a sad state owing to a foul cold – expresses considerable scorn (between sneezes) about the ultramontane meddling of "a religious body which has its headquarters in Italy", and about defending counsel's argument that
... the authority of the Pope is so extensive that, like the umbrella of an Oriental potentate, it may give protection to lesser individuals. Now, who is the Pope? He has not been called in evidence ...
Since A.P.H. would shortly need to carry out a great deal of coaxing and wheedling of Catholic opposition to his Marriage Bill, it was probably a wise move to omit this guaranteed blood-pressure booster.
Other momentous proceedings from Still More Misleading Cases bit the dust because, as so frequently observed by Mr. Justice Heisenberg, our author's own tinkerings established fresh case law. Herbert's sense of equal justice for all was offended by his discovery that the House of Commons bars quietly ignored the rules about permitted drinking hours which were such a nuisance to mere citizens. So he concocted a Case titled "Sauce for the Goose", wherein the Lord Chief Justice very reasonably says of Members of Parliament:
One would have thought that they were not likely to ignore the restrictions upon drinking which they have themselves imposed upon the common people.
This ends with the Chairman of the Commons Kitchen Committee being committed to Brixton prison for contempt of court, and there's a sequel in which Haddock – who was naturally responsible for the original prosecution – tries in vain to purge his contempt of Parliament. But all this material quickly became outdated, because Herbert himself couldn't resist testing the law by laying information against the Kitchen Committee – only to discover that, according to the real Lord Chief Justice, "the bulk of the provisions of the Licensing Acts are quite inapplicable to the House of Commons." Indeed, thanks to the glowing aura of Parliamentary privilege, "no court of law has jurisdiction to entertain such an application ..."
So in the Uncommon Law omnibus, "Sauce for the Goose" was replaced by the newer Case "Crime in the Commons". Here the ever-reliable Mr. Justice Wool expostulates (again between sneezes) that – owing to the now established real-life precedent Rex v. Sir R.F. Graham-Campbell and others. Ex parte Herbert (1935) 1 K.B. – he has no jurisdiction in respect of all sorts of other naughtiness, malfeasance and downright villainy that might be committed in the House. The indexes compiled by Herbert for the books of Misleading Cases are a joy in themselves (BLACKMAIL: See "Collector of Taxes"), and relevant entries from Uncommon Law include ...
- ARSON: Is lawful, in the House of Commons
- BETTING AND LOTTERIES ACT, 1934: Does not apply in the House of Commons
- BIRTHS: In the House of Commons, need not be notified
- BURGLARY: In the House of Commons, is lawful
- COCAINE: May be sold in the House of Commons
- DANGEROUS DRUGS ACT: Believed "wholly inapplicable" to the House of Commons
- DIRTY BOOKS: May be sold at the House of Commons
- DOGS: In the House of Commons, do not require a licence
- DRAINS: Need not be attended to, at the House of Commons
- MURDER: In the House of Commons, cannot be inquired into, by King's Courts
Enough! More Uncommon Law (Methuen 1982) isn't so tricky a collection, since this omnibus simply reprints the whole of two further volumes devoted solely to Misleading Cases: Codd's Last Case (Methuen 1952) and Bardot M.P.? (Methuen 1964).
But then there's General Cargo (Methuen 1939), a miscellany of humorous material which includes three [[four]] newly collected Cases, two [[three]] of them never reprinted (one reappears in Codd's Last Case): this volume, as far as I know, contains the only book publication of "The Indiarubber Sandwich" as mentioned above. Completists can skip Look Back and Laugh (Methuen 1960), a retrospective collection for Herbert's seventieth birthday: four Cases appear, of which the only fresh one is reprinted in Bardot M.P.? Finally, Wigs at Work (Penguin 1966) contains selections from all the above plus footnotes on later legal follies and two new Cases. Take heart: compared to the works of Harlan Ellison – which have caused even saintly John Clute to verge upon testiness about the recycling of the same stories in endless permutations – A.P. Herbert is fairly straightforward.
So much for collections in book form. Real completists will of course insist on combing through back issues of Punch, where most of these proceedings originally appeared. Herbert reckoned in 1966 that he'd written about 150 Cases, and those in the above books tot up to only 127 []. Additionally, there's at least one later Case dated 1967, resulting from Haddock's difficulty in keeping his gaze rigidly averted from the sultry allure of mini-skirts on the Underground. That one was published in the Evening Standard – since Punch had recently banned all mini-skirt jokes – and again got picked up as straight news in America, Italy and especially France: LES MINI-JUPES ET LE LOI BRITANNIQUE. [[Two further discoveries have been added to the bibliography under Known Uncollected Cases.]]
Although researching John Sladek took me to the National Newspaper Library at Colindale, twice, to go through their entire 1967-1972 run of Titbits, I somehow doubt that I have the strength to repeat the performance with all the bound volumes of Punch from 1924 until shortly after A.P. Herbert's death in 1971 (at the age of 81). Unless – hastily remembering my filthy-pro credentials – someone offers to pay me....
Still, I've had a good deal of fun re-reading all the Misleading Cases collections on the pretext of doing serious literary research for Banana Wings. You may like them too. My secret fantasy plan for global domination begins with introducing Haddock to the strange legal culture of the World SF Convention business meetings.
The Judge: Has this anything to do with Mr. Albert Haddock?
Sir Alister Banner, K.C.: Yes, milord.
The Judge (perking up): Ah! then we are in for some jolly litigation. ("Incorporation of Haddock")
Extremely Long Boring Bibliography Which If You Ask Me Makes David Redd Look Like A Slacker