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McCardie was famous, both on and off the bench, for his observations, in terms which probably horrified many of his judicial brethren, on topics many of which in those days were not usually the subject of judicial concern let alone public discussion. It was probably with McCardie in mind that Mackinnon LJ – no admirer: he wrote that McCardie was not a great judge and that his appointment was ‘an unfortunate accident’ – famously observed (On Circuit, Cambridge University Press, 1940), that ‘He is the best judge whose name is known to the fewest readers of the Daily Mail’. At Christmas 1930 McCardie went so far as to hold a press conference in his room at the Royal Courts of Justice.
McCardie’s private life would probably raise many eyebrows even today. Unmarried, and often referred to in the (no doubt well-informed) popular press as the ‘bachelor judge’, he had two long-term mistresses, neither of whom, apparently, was aware of the existence of the other. By one of them he had an illegitimate son, born in 1919, who knew him as Mr Hardie without being aware that he was in fact his father.
Debilitated by recurrent bouts of influenza,depressed, weighed down by gambling debts which he could not pay and perhaps, it has been suggested, prey to blackmailers, McCardie shot himself in April 1933. (Willes had also shot himself while still a serving judge.)
Now all this, I suspect little known to most of today’s generation, undoubtedly makes for a fascinating ‘read’ but what, if anything, is its relevance for the modern family lawyer? McCardie, after all,sat in the King’s Bench Division, not the Probate Divorce and Admiralty Division, as it then was.There are, perhaps, three answers to this. The first is that, because of the survival of such common-law actions as enticement or the tradesman’s claim against the husband for his wife’s necessaries, and of such common-law doctrines as the rule that a wife could not sue her husband in tort, topics which would now be thought of as part of family law, and therefore for what is now the Family Division, were then litigated in the King’s (now Queen’s) Bench Division. The second is that, in consequence of the Administration of Justice Act 1920, divorce suits became triable on circuit by King’s Bench judges. As Stephen Cretney, in his magisterial Family Law in the Twentieth Century: A History (Oxford University Press, 2003), has pointed out, the 1920 Act was ‘far more significant in the development of divorce law than is often realised’. One very obvious manifestation of this was the way in which McCardie took to the work with enthusiasm and quickly became a powerful judicial advocate of divorce law reform. The third is that, at a time when judicial thinking in the PDA was, to put it politely, conservative and limited in outlook, McCardie was, both on and off the bench, outspoken in his views on every-day, social, sexual and family matters.