John Andrew Hamilton and Thomas Edward Scrutton were the most successful junior barristers of the Commercial Court's early years, its leading King's Counsel for nearly a decade at the beginning of the 20th Century, and two of the greatest judicial intellects ever to sit as Commercial Judges. They appeared against one another constantly in almost every major Commercial Court case from 1895 to 1909, when Hamilton, although the younger of the two, was the first appointed to the Bench. Even after 1910, when Scrutton also became a Judge, flashes of the competitiveness between them occasionally showed in their judgments. Theirs was the greatest professional rivalry in the history of the Commercial Court, and one of the greatest in all English legal history.
Appropriately for someone whose professional life would be dominated by commercial law, Londoner T.E. Scrutton was born into a shipowning family. The firm of Scruttons diversified into stevedoring and survived as a distinct entity, although through various reorganisations, into the 1970's. In the 1960's, it was one of the parties to the great commercial case of Scruttons v Midland Silicones [1962] AC 446, which paved the way for the development of the 'Himalaya Clause'. Scrutton, however, never showed any enthusiasm for entering the family business.
John Andrew Hamilton aged about twenty-two. Representations of the young T.E. Scrutton are not readily available. However, since he maintained a beard all of his adult life, photographs from his later years may give a fairly good indication of his youthful appearance.
Indeed, he appeared for several years to be intent on forging an entirely unique career path as a professional student. He studied at University College, London and then at Trinity College, Cambridge. At both institutions, he followed courses which offered a wide curriculum: from 1873 to 1879, Scrutton studied everything from Greek and Latin to logic and political economy. Then he spent a year studying law. By the time Scrutton eventually settled on a career and was called to the Bar in 1882, he was already twenty-six.
John Andrew Hamilton was born in Manchester more than two years after Scrutton. By adopting a more focussed approach to his studies, he was able to make ground on the older man. Hamilton studied classics at Balliol College, Oxford. It was while he was there that parallels first began to develop between the lives of the two. Scrutton had been President of the Cambridge Union. Hamilton became President of the Oxford Union. They both became interested in Liberal politics while students. But one degree was sufficient for Hamilton. He was called to the Bar in 1883, only a year behind Scrutton.
Scrutton served his pupillage with Archibald Levin Smith. Smith was an enormously successful common-law practitioner. He was Junior Counsel to the Treasury, which meant that he had a steady supply of government work in a variety of areas. Smith was made a Queen's Bench Judge soon after Scrutton completed his pupillage. He would later be Master of the Rolls for a short period, but died in office. Hamilton ‘s pupil-master was John Charles Bigham. Whereas Smith had a general practice, Bigham was a commercial law specialist. In the same year that Hamilton was called to the Bar, Bigham became Queen's Counsel, after only a dozen years in practice. He would later become one of the leading practitioners of the Commercial Court's first years, and then one of its earliest Judges. His connection with Bigham proved a life-line for Hamilton. In his first years at the Bar, virtually his only work was as Bigham's "devil", producing drafts of his paperwork and helping him prepare cases. Hamilton could not obtain any instructions of his own. He despaired of success to such an extent that he came close to leaving the Bar for a different career. Queen's Bench Judge Sir James Charles Mathew persuaded him to persevere. While he waited for work, Hamilton supplemented his income by writing. He was a significant contributor to 'The Dictionary of National Biography', writing about 300 entries, many of them about Judges of times past.
Scrutton's career got off to a much better start. He was busy from the beginning and, like his puil-master Smith, developed a mixed common law practice. Scrutton’s early speciality was the law of copyright. He had written a prize-winning essay on the subject, which he turned into a well-received book. He did not begin to shift his focus to commercial law until after the publication of his second book. The first edition of 'The Contract of Affreightment as expressed in Charterparties and Bills of Lading' was published in 1886. 'Scrutton on Charterparties' is still in print today, in a modern edition.
Hamilton's career began to blossom in the early 1890's. His name began to appear regularly in the law reports in commercial cases, and he was led by the major commercial QC's. With Scrutton increasingly turning his attention to commercial work around the same time, they were both acquiring growing reputations as commercial juniors just as the Commercial Court was being established. It was tremendously fortunate timing for both of them. The pace at which J.C. Mathew got through hearings in his Court meant that there was a steady flow of commercial cases coming on for trial after March 1895. Hamilton and Scrutton both rapidly acquired a major share of this work. They regularly appeared against one another, although, for a while, they were both outshone by Thomas Gilbert Carver. When Carver became a QC in 1897, Scrutton and Hamilton had no rivals, other than each other, as junior counsel in commercial work. Hamilton's career received a significant boost when Bigham became a Judge in the same year, and Hamilton took over much of his practice. In 1900-1901, Scrutton appeared in forty reported Commercial Court cases and Hamilton in thirty, and they were on opposite sides in sixteen.
Scrutton’s pupil-master, Archibald Levin Smith, became a Queen’s Bench Judge, Lord Justice of Appeal, and Master of the Rolls. Of delicate health, he died in 1901 from strain caused by overwork and the death of his wife.
Hamilton’s pupil-master, John Charles Bigham, became a Commercial Court Judge and President of the Probate, Divorce & Admiralty Division. As Viscount Mersey, he enjoyed an active career after his stage-managed retirement for “health reasons” in 1910.
Scrutton did not produce any new editions of ‘The Law of Copyright’ after 1903, but the reputation of his early expertise clung to him. The new King’s Bench Judge was still “Copyright” to Vanity Fair in 1911.
Scrutton and Hamilton both became King's Counsel in 1901. It was the year of Queen Victoria's death, and they were among the first KC's for more than sixty years. There was some speculation at the time that they had applied in the expectation that Joseph Walton, perhaps the most phenomenally successful leading counsel the Commercial Court would ever see, would soon be made a Judge. When Walton did indeed go on the Bench later that year, Hamilton and Scrutton both grabbed a good share of the work which he left behind. For a while, Carver was ahead of them both. But they soon caught him up, then overtook him. In 1906, Hamilton appeared in fifteen reported Commercial Court cases and Scrutton in twelve, and they were on opposing sides in ten. Between them, they absolutely dominated Commercial Court trial work.
They did it in very contrasting ways. Hamilton's advocacy was clinical, his arguments clear and precise, stated quietly but with a remorseless legal logic. Scrutton's style was more demonstrative: he was known to wave his arms about, and his speeches were packed-full of citation of authority (it was said that he virtually knew the text of 'Charterparties' by heart). Hamilton was tall and solid, an austere physical presence. Scrutton, a thinner man until he filled out in middle-age, was more ungainly, and his beard - said to have been almost unique at the Bar in his time, though Clement Bailhache shared the look - gave him an unusual appearance, although a striking one.
For all of these differences, Scrutton and Hamilton had much in common. Most obviously, they were both brilliantly effective advocates in commercial cases, and exceptional black-letter lawyers. And, while their political paths had diverged when the Liberal movement split over Irish Home Rule in the 1880's (Scrutton remained Gladstonian while Hamilton joined the Unionist wing), they shared personality traits. More specifically, both were, or at least were capable of being, unpleasantly bad-tempered. Hamilton harboured a deeply cynical nature, which made him tend to be misanthropic and angry with the world. Scrutton, meanwhile, was impatient with anyone who fell short of what he perceived to be his own standards, which meant pretty much everybody. Both men were capable of warmth in private life: Hamilton was said to be good company when the mood took him, while Scrutton was a devoted and much-loved family man. But Scrutton had difficulty controlling his temper in professional contexts, and this affected his career, probably more so than in Hamilton's case. What the two men thought of one another seems, unfortunately, not to be recorded.
Most contemporaries believed on balance that Hamilton was cleverer and the better advocate. This probably explains why the younger man was the first onto the Bench. Hamilton became a King's Bench Judge in February 1909. Scrutton followed a year later. Hamilton was an outstandingly successful first-instance Judge. In the Commercial Court, where he spent a significant part of his King's Bench career, he got through cases quickly and delivered his judgments without delay. Those judgments were decisive and clear, and he acquired a reputation for written elegance. Hamilton also managed well in areas of law beyond the boundaries of the Commercial Court. After less than four years, he was promoted to the Court of Appeal. So soaring was his reputation that, a year after that, he was appointed a Lord of Appeal in Ordinary. (He took his mother's family name for a title, because there were already other Lords Hamilton.)
Scrutton's King's Bench career was not so smooth and successful. He managed to follow J.C. Mathew’s unhappy precedent by making himself deeply unpopular on the Bench. Scrutton was too quick to become angry with lawyers who did not match the high level of professionalism which he believed (in fairness, probably rightly) that he had exhibited in his own practising days. He was so persistently rude to Commercial Court solicitors that they instructed counsel to deliver a formal protest. He may also have been reported to the Lord Chancellor. He certainly spent less time in the Commercial Court than would naturally have been expected, given his professional background. He never seemed entirely happy as a first-instance Judge dealing largely with matters of fact rather than law. He was much more suited to the Court of Appeal, where appeals on questions of law gave him the opportunity to demonstrate his enormous case-learning.
By the time Scrutton was promoted to the Court of Appeal in 1916, Hamilton had already been in the Lords for three years. After starting life behind Scrutton, he was now decisively ahead. Hamilton's reputation reached even greater heights in the House of Lords than it had in the lower Courts. This was partly a timing issue: Hamilton spent seventeen years in the Lords, nearly four times as long as the whole of the rest of his judicial career. But it was also a matter of genuine ability. Hamilton was a professional Judge in an age when the ranks of the Law Lords were padded out with political appointees of varying shades of mediocrity. It was clear to see that he was far more capable than virtually all of his colleagues. Hamilton sat on around three hundred House of Lords appeals, and in the order of two hundred Privy Council cases. He delivered an enormous number of judgments, and was praised for combining luminous written style with formidable intellectual substance.
Most great common law Judges of England & Wales since 1895 have been Commercial Judges. John Eldon Bankes was one of the exceptions. Descended from a Lord Chancellor on his father’s side and from a Chief Justice on his mother’s, he kept Scrutton in order in the Court of Appeal.
Scrutton's reputation recovered in the Court of Appeal from the battering which it had taken at first-instance, and then went from strength to strength. He regularly sat as the middle-ranking Lord Justice in a Court with John Eldon Bankes and his own former pupil, James Richard Atkin. They worked brilliantly together, and were the strongest three-Judge Court in English legal history. With interesting points of law to decide, and the aristocratic Bankes to make him behave, Scrutton blossomed in a congenial environment. He could turn his penetrating powers of legal analysis to any subject which came before him. By the end of the 1930's, he was acknowledged as the dominant force in the Court of Appeal, a giant of the common law. He still had the beard: in some of his photographs, it made him appear almost avuncular.
Hamilton married Maude Margaret Todd in 1892. Without children, they spent forty years together, travelling in Europe and spending time away from Hamilton's work at the country house which they bought at Ibstone, near Slough. Hamilton had enjoyed climbing in his youth, but the pastimes of his later years were intellectual, rather than physical. He liked classical literature and classical music, and was a collector of paintings. Meanwhile, his position in the House of Lords gave him an outlet for a lifelong interest in politics. A Liberal when young, he became associated with the "die-hard" wing of the Conservative Party after the Great War. His outspoken contributions to Lords debates on matters such as the Amritsar Massacre, Imperial affairs, and Irish Home Rule, made him a far more prominent public figure than the average Law Lord.
Scrutton had become engaged to Mary Burton, a solicitor's daughter, during his protracted student days. They married in 1884, and set up home in South East London. The Scruttons had four sons (the youngest was killed in the Great War) and a daugther. In the time away from work which was not devoted to his family or to updating 'Charterparties' (he edited it until the 1920's), Scrutton was keener than Hamilton on physical hobbies. When young, he had climbed, cycled and rowed, and he was a keen golfer, though not a very good one, in later life.
Ambition is often a goad to success, but sometimes success only further fuels ambition. Hamilton and Scrutton both had towering judicial careers, but neither rose as high as he would have liked. After becoming a late entrant to the world of politics, Hamilton began to aspire to become head of the judiciary as Lord Chancellor in a Conservative government. His name was mentioned in 1922 and 1928, but he was passed over on both occasions. Viewed objectively, this was not surprising. Hamilton's personality did not make him a natural for collaborative Cabinet government, and he had no real experience of party politics. But it was a blow to Hamilton, and he ended his career a disappointed man. He retired in 1930, and, as if to mark an irrevocable abandonment of the law after nearly fifty years, sold his professional library.
Viscount Sumner of Ibstone in 1931, a year after he had retired without achieving his ambition of the Lord Chancellorship.
Sir Thomas Edward Scrutton in the 1920’s, during the the most successful part of his career.
The natural sequel to the eminence which Scrutton had achieved in the Court of Appeal would have been to follow his old rival to the House of Lords. But, possibly because of lingering questions over his temperament, he was not favoured. Vacancies which came up over the years went to Judges whose abilities were pedestrian by comparison with Scrutton's greatness. When Atkin, his own former pupil, was promoted over his head in 1928, Scrutton must have known that he would never reach the Lords. Four years later, Robert Alderson Wright, another former pupil, jumped Scrutton and the rest of the Court of Appeal by going to the Lords straight from the King's Bench.
Without either Atkin or Bankes (who retired in 1927) alongside him, Scrutton's last years in the Court of Appeal lost the golden glow of earlier days. His health was not as strong as it was, and his temper deteriorated. He mockingly imitated the Lancashire accent of provincial counsel who appeared before him in one appeal and had unseemly public rows with Lord Chief Justice Hewart and King's Bench Judge Henry McCardie. The McCardie affair in particular attracted unfavourable press and public attention, and was made the more painful when McCardie later committed suicide.
John Andrew Hamilton died suddenly from a heart attack on 24th May 1934, shortly after arriving in London at the end of one of his European trips. He was buried at Ibstone. Ahead at the end for the first time in a quarter of a century, Scrutton, two years older than Hamilton, survived his great rival by three months. Still in post as a Lord Justice of Appeal, he attended Hamilton's memorial service in Temple Church in June. In July, seeming physically well, he went to Sheringham, in Norfolk, for the summer. Thomas Edward Scrutton died from hernia complications on 17th August 1934. He was buried in Norwich.