After reading my piece on a “Lifetime in the Law” a Canadian judge has asked me whether the role of a judge’s marshal was the same as that of a law clerk in Canada and the United States. The answer is essentially “no”. What I was describing then was drawn from the days before the Courts Act 1971 “nationalised” our court system. This Act introduced the concept of a single Crown Court which sat in many parts of England and Wales and would only be visited by a High Court Judge when there was sufficient heavy work to justify their visit.
In the days before the Courts Act equality of opportunity was virtually non-existent. Perhaps my early experience spurred me on to search actively for ways of achieving a more level playing-field of opportunity for all (including women and members of ethnic minorities) when I become a senior member of the Bar Council a generation later.
The office of judge’s marshal goes back deep into the mists of time. From the early Middle Ages onwards the king’s justices used to travel out from London from time to time to try the most serious criminal cases at local assize courts. If time allowed, they would also try civil cases that arose locally: the list of civil cases was known as the “nisi prius” list. (This practice was established by the Statute of Westminster in 1285). A judge’s travels were organised within what came to be called “circuits”. In 1963 there were seven circuits: Northern, North-East, Midland, Oxford, Welsh, Western and South-Eastern. The Central Criminal Court (the Old Bailey) performed the same function as an assize court for Middlesex and parts of neighbouring counties.
In earlier times the judge would travel by horse, accompanied by his clerk, his marshal, and a retinue of servants, including his cook and his butler and, sometimes, a “marshal’s man”. There is a painting which shows the High Sheriff of one county accompanying the judge to the county border (of Cheshire, I think), where he is being met by the High Sheriff of the next county he was due to visit. He would then be accompanied by the new High Sheriff to the lodgings which it was the duty of the sheriff – or, sometimes, the local authority – to provide. The judge’s entourage would also be accompanied by the permanent staff of the circuit, who would include the local Clerk of Assize and his staff. They would bring with them a huge wicker hamper containing the books and papers and other things they needed when setting up the court in the next town. (Falstaff took refuge in a hamper of a similar size in Act III of the Merry Wives of Windsor, although that hamper contained dirty linen and not court papers.) In addition, members of the local Bar would travel with the judge from circuit town to circuit town.
The judge’s marshal, who was often (but not always) a young barrister or bar student, would wear morning dress, with a black waistcoat, and carry a top hat and white gloves. He would walk in procession behind the Judge and would have access to all the judge’s papers and be able to discuss them, and the progress of each trial, with the judge. He would sit next to the judge on the bench, and if the judge’s clerk was absent from court for some reason, the marshal would administer the oath to witnesses. In the evenings he would change into a dinner jacket, like the judge, and it would be his duty to say grace at dinner in the lodgings.
He would also accompany the judge to any social occasions (such as a dinner hosted by the High Sheriff, or the local Bar Mess) and to the Assize service which would be held in a local church (or cathedral) just before the judge heard the first cases. By tradition, a trumpeter would announce the Judge’s arrival. When I became a High Court judge in 1988 I remember seven trumpeters at the high altar greeting me on my arrival at the west door of York Minster for what was by now a ceremonial Sunday service for the entire circuit at the start of a new legal year.
It was a wonderful opportunity for a young marshal to see the justice system operating from the inside, and to watch advocates practising their profession from the vantage point of the judge’s bench. And in addition to receiving free board and lodging, he would receive remuneration from HM Treasury at the princely rate of two guineas a day (£2.10 in money of today). This practice survived until my time as a marshal, but not, I suspect, for very much longer.
By the early 1960s not every judge would travel with a marshal, particularly if his wife accompanied him on circuit. But quite a few did, and as with so much that happened 50 years ago, personal connections were a great help. My brother’s friend Tom Bingham, who was a few years ahead of me at the Bar, introduced me to Mr Justice Hinchcliffe, with whom I spent a week in Cambridge in 1962, and, via another member of his chambers, to Mr Justice McKenna, with whom I spent a total of seven weeks after my Bar Finals in 1963: three weeks in Cardiff and two each in Durham and Newcastle. And before that I spent a week with Sir Jocelyn (“Jack”) Simon who went to Gloucester to hear a defended divorce case in his capacity as President of the Probate, Divorce and Admiralty Division. My link to him came through my father who had been a ministerial colleague of Jack Simon before he abandoned politics for the bench: he later became a law lord. One of his three sons has just been appointed to the Court of Appeal.
In Cardiff and Newcastle we were housed in the Mansion House, and the Lord Mayor would move out during the judge’s stay. By chance, I heard very recently that at Cardiff this practice had ceased even before the Courts Act became law once it had been established that the local authority had not housed the judge there from “time immemorial” (as a statute required, if the practice was to be irreversible): instead, the habit of using the Mansion House had started rather more recently than 1189.
Judge’s marshals still survive today, but usually on a far more informal basis. The Inns of Court, for instance, run schemes whereby a student of the Inn may be allocated to a judge of any level of seniority for a week or two (or sometimes more). They do not have to dress up, but they will still sit on the bench and read the papers, and they may be asked to carry out research for the judge. In contrast, the Court of Appeal and the UK Supreme Court have introduced judicial assistants, whose position is much closer to that of the law clerk on the other side of the Atlantic, although their term of office does not often exceed a year. In the Court of Appeal it is often limited to a legal term.
In her book “Hear The Other Side” (London, Butterworths, 1985) at p. 146, Dame Elizabeth Lane, who became our first female High Court judge when she was promoted from being a county court judge in 1965, summed up the marshal’s role like this:
“The judge’s marshal accompanies the judge on Assizes. He is nearly always a budding lawyer and sits on the Bench beside his judge. He goes everywhere with his judge and has to be included in all invitations. He acts as social secretary, writes and acknowledges invitations, pours out the after dinner coffee and makes himself generally useful. It is a great privilege to be a marshal and also highly instructive. Accommodation is provided for him in the Lodgings; years ago it also had to be for the marshal’s manservant. Separate accommodation is also provided in the Lodgings for the judge’s clerks.”