When the Commercial Court was established in 1895, and for a good number of years afterwards, judicial appointments were all too frequently made for obviously political reasons. Vacancies among the Law Lords or the Heads of Division were routinely presented as a reward for Law Officers who had done their bit for the government of the day, while time-served MPs with legal backgrounds were commonly appointed to the High Court or even the Court of Appeal. (The 'Law Journal' of 1897 informed its readers that "only" nine out of twenty-eight current Court of Appeal and High Court Judges were ex-MPs, as though this was a comforting proportion.) Unsurprisingly, individuals whose primary focus had been on politics rather than law were seldom any better than mediocre as Judges. Occasionally, they were very bad, such as William Grantham, a former Conservative MP whose insistence on peppering his judgments with party-political comment almost provoked Liberal MPs into initiating the statutory procedure for removing him from office for misconduct.
Charles Darling liked having his picuture painted. His decision to commission this portrait of himself in heroic mode soon after his appointment to the Bench did not favourably impress his colleagues.
On the whole, the Judges who sat in the Commercial Court did not attract accusations that they owed their judicial office more to political preference than to professional merit. Charles Darling was perhaps the most conspicuous exception. Born in Colchester in December 1849 into the family of a gentleman farmer, Darling was home-schooled and did not go to university. He began his legal career as a Birmingham solicitor before switching professions, and was called to the Bar by Inner Temple in 1874. As 'The Dictionary of National Biography' tactfully expressed it, Darling's career as a junior barrister was "not particularly noteworthy". By good fortune, a substantial inheritance from a relative meant that he had little practical imperative to work at all, and he appeared in only a handful of reported cases, with a profile indicating a mixed common law practice encompassing bankruptcy, building societies and loans, employment, landlord and tenant, and nuisance. Nonetheless, he became a strikingly young Queen's Counsel in 1885, aged just thirty-six, after a little over a decade in practice. Since this appointment was not justified by any professional distinction, it is presumably no coincidence that 1885 also marked Darling's first attempt to win election to Parliament: he stood as a Conservative in Hackney South in that year's general election. Hardinge Giffard, Lord Halsbury, was the (Conservative) Lord Chancellor at the time, and it was Halsbury, notorious for awarding appointments to personal friends and political allies, who recommended Darling as one of only four new QCs just weeks before polling day.
If Halsbury hoped that this newly-conferred mark of professional distinction would endear Darling to the electors of Hackney, then he was to be disappointed: they opted instead for the Liberal candidate, the future Lord Chief Justice and instigator of the Commercial Court, Charles Arthur Russell. But Darling won a by-election at Deptford in 1888, and held on to the seat at the 1892 and 1895 general elections. He spoke in the Commons on legal matters and Irish affairs, among other topics of the day, without setting the Chamber alight. The distractions of a Parliamentary career may have contributed to the continuing low profile of Darling's practice at the Bar: he made even fewer appearances in the law reports as a QC than he had done as a junior, and made no impact as either a forensic advocate or a legal thinker. It is therefore not surprising that his appointment as a Commissioner of Assize in late 1896 generated rumblings of discontent. This part-time appointment to try criminal cases had often proved to be the forerunner to a full-time judicial career, and rumours began to circulate in Parliament and around the Law Courts and the Inns that Halsbury (who was back in office for his third, final, and longest term as Lord Chancellor) intended to make Darling a High Court Judge. The Liberals tried to scupper Halsbury's plans by invoking a supposed principle that MPs must not take paid employment from the Crown, and demanded that Darling must either resign his seat or give up his Commission. (Darling neatly side-stepped that by volunteering to go on Assize without pay.) Meanwhile, The 'Times' used the occasion of the service in Westminster Abbey at the opening of the 1897-98 legal year (the first time that this event was held) to warn Halsbury that the general standard of the Queen's Bench Division was too low "to afford any room for further experiments in the direction of appointments made on political rather than professional grounds; nor would it be wise for the Government to challenge public criticism by any nomination which would be condemned by prevailing opinion at the Bar".
These were strong words, particularly given the paper’s Conservative sympathies. But they made no difference. Within days, Darling's appointment as a Queen's Bench Judge was confirmed. The laconic observation in The 'Law Times' that "the appointment is very unpopular with all branches of the profession" was one of the milder reactions, as the condemnation which The 'Times' had predicted engulfed Halsbury and Darling. A petition was started by members of the Bar demanding that the Bar Council tackle the Government about its approach to judicial appointments. Meanwhile, the legal press dismissed Darling as "a facetious politician" with negligible legal experience and a "political hack", while The 'Times' presented its readers with an uncomplimentary analysis of Halsbury's wider record of judicial selections. The furore far exceeded the complaints which had greeted Gainsford Bruce's appointment five years before. Bruce, although also a political appointee, at least had thirty years of solid, if unspectacular, professional experience as an advocate, arbitrator, and part-time Judge. Darling manifestly had next to no qualifications for the Bench. He took office a couple of weeks after John Bigham. Bigham had been welcomed with a round of applause when he entered the Royal Courts of Justice for the first time as a High Court Judge. The contrast with the reaction to Darling's appointment could not have been more glaring.
Lord Chancellor Halsbury: if his decision to make Darling a QC after only a decade in practice appeared suspect, it was nothing compared to his transparently political decision to make Darling a Judge twelve years later.
Yet when the excitement died down, Darling proved less of a judicial disaster than some had predicted. Although he never acquired any reputation as a legal thinker, and passed his entire twenty-three year career (in which he sat in over a thousand reported cases) without promotion, Darling was not stupid. He generally managed to handle a wide variety of common law work without making a mess of things: one obituary claimed that he had a sound intuition "which served him well where actual knowledge ceased". His principal defect was a want of judicial gravitas. Small in stature and short-sighted, he lacked physical presence. But that was not the main issue. Darling’s real problem was that he sometimes seemed not even to try to act with appropriate judicial dignity. He appeared to have a self-destructive longing to be liked. In jury trials and high-profile cases which attracted public and press attention, he played to the gallery with frivolous interventions and jokey asides. (A characteristic example and much-told example occurred when a witness stated that he had gone into a pub called The 'Elephant' to use the phone: "Was it a trunk call?", Darling wanted to know.) Although he fondly imagined that these were witty and entertaining, they were invariably out of place, and made him appear lightweight. He engaged in banter with witnesses, and sometimes virtually lost control of proceedings altogether. His attempts to ingratiate himself with juries tended only to undermine their respect for him, with the result that they did not take his summings-up and directions on the law with proper seriousness.
Serjeant Sullivan arguing for Sir Roger Casement’s life before five Commercial Court Judges: (from left) Scrutton, Bray, Darling, A.T. Lawrence, and Atkin. Casement’s appeal turned on a short point of construction under the Treason Act of 1351: [1917] 1 KB 98.
Yet it was said that in the most serious of criminal cases, those involving murder and other capital charges where the defendant's life was at stake, Darling habitually managed to restrain his flippancy and was transformed into an effective and reliable trial Judge. And the ‘Guardian’ obituarist thought that Darling slowly grew up over his long career, and was vastly more judicial by the end of it than he had been at the beginning. In 1916, he headed a five-strong Court of Criminal Appeal which heard Sir Roger Casement's appeal against his conviction for treason. Granted that he was supported by Judges better than himself (Bray, Scrutton and Atkin, albeit partly off-set by the low-calibre A.T. Lawrence) Darling was thought to have presided well. (Even here, however, his showboating tendencies betrayed themselves: he invited the artist John Lavery into Court to paint the proceedings. This made for a unique portrait, five Commercial Judges sitting together, fully robed.) And he was regarded as sufficiently reliable to serve as acting Lord Chief Justice while Viscount Reading (formerly Liberal politician and commercial practitioner Rufus Isaacs QC) took long leaves of absence for diplomatic mission to the United States
With its relatively low public profile and few jury trials, the atmosphere of the Commercial Court was unlikely to excite Darling's exhibitionist tendencies. He had no commercial background, and does not appear to have sat in the Court in more than twenty years on the Bench up to the end of the Great War. Indeed, it was said that, with his love of levity, he professed to despise the Commercial Court's serious-minded work. But during the surge of business immediately after the War, a number of unlikely figures were pressed into emergency service in the Court, Darling among them. He tried around a couple of dozen sale, insurance, and carriage of goods cases between 1919 and his retirement in 1923. If none of Darling’s judgments in Commercial Court cases offered penetrating new insights into English commercial law, none of them were disastrously wrong either, and he did no lasting damage to the Court's reputation. Indeed, his decision was upheld more often than not in those of his reported commercial cases which were appealed.
Darling's most interesting Commercial Court case was Roumanian Consolidated Oilfields v The Crown (1920) 2 Lloyd's Rep 622. The plaintiff was a British company which owned wells and refineries in Romania's Ploesti oilfields. Politically divided in its sympathies towards the combatants, Romania remained neutral for the first two years of the Great War, before declaring for the Allies in August 1916. A Romanian offensive into Austria-Hungary through the Carpathians was beaten off by a vigorous counter-attack. As German and Austrian troops advanced into Romania, members of the British Military Mission motored about the country organising the destruction of facilities which would benefit the enemy. Romanian Consolidated's local management agreed to destroy their plant after a series of frantic discussions with Lieutenant-Colonel Sir John Norton-Griffiths, Bt, KCB, DSO, MP. Their case before Darling was that they had acted on the faith of Norton-Griffiths' promise that the British Government would pay compensation at the plant's audited value of £1,250,00, an enormous sum at the time. The Government claimed that Norton-Griffiths had made only much vaguer reference to the prospect of compensation being awarded by a special tribunal which would be established in due course. Darling accepted the plaintiff's version of events, but, on this occasion, the Court of Appeal disagreed: (1920) 5 Lloyd's Rep 372. Roumanian Consolidated eventually recovered £500,000 from an Allied compensation commission and was absorbed into The Phoenix Oil & Transportation Company. Phoenix restored the Romanian facilities, which were then heavily bombed by the Allies in the Second World War and nationalised by the post-War Communist government. (The Roumanian Consolidated case acquired a close parallel during World War Two when British and Indian forces retreating through Burma blew up oil facilities there. The House of Lords held in Burmah Oil v The Lord Advocate [1965] AC 75 that the owners were entitled to compensation, but the Government controversially stymied the decision with The War Damage Act 1965.)
Darling was made a peer when he retired (another plainly political honour). He sat in Privy Council cases and the ocasional House of Lords appeal as late as the early 1930's, and even helped out in the King's Bench from time to time when the Division was struggling with its workload. But, unlike Walter Phillimore, he did not much enhance his judicial reputation in retirement.
John Norton-Griffiths organised the destruction of the Ploesti oilwells in 1916. They were rebuilt after the First World War, only to be bombed by the Allies in the Second.
Darling enjoyed horse-riding, was a connoisseur of French literature, dabbled in light verse, and was an amateur artist. He acquired a substantial body of paintings by other artists, but was apparently not a genuine connoisseur: The 'Telegraph' noted that his pictures sold after his death for only £227, a "modest sum" compared to the £100,000 which the collection of Mr Justice John "Judgment" Day had fetched at Christie's in 1909. Darling also took an interest in legal history: it was he who, rather admirably, presented to the Inner Temple Library its set of four illuminations depicting the principal royal Courts around 1460.
Darling’s wife, Mary, died in 1913. They had a son and two daughters. Charles Darling died in May 1936. He was buried next to Mary in the grounds of Beaulieu Abbey, in a private family ceremony. Lord Chancellor Hailsham led the way with the customary platitudes, making the implausible assertion that Darling had been “a great judge”. Invited to contribute a foreword to a biography of Darling two years later, Hailsham took a more measured view, concluding that "a judge, to deserve the title of "great", should possess deep learning, a firm grasp of legal principle, and a capacity beyond the common for apprehending and marshalling complicated facts. Darling would have been the last person in the world to claim for himself the possession of any of these qualities.”