A Little Less Conversation … a Little More Beer (Redux)
Here is a further, more extended quote from Lord Macnaghten in the case I discussed yesterday from 1891, Montgomery v. Thompson, heard by the House of Lords in England:
My Lords, the Appellant complains of an injunction awarded against him so far, and so far only, as it prohibits him absolutely “from selling or causing to be sold any ale or beer not of the Plaintiffs’ manufacture under the term ‘Stone Ales’ or ‘Stone Ale.'” The order was made, in the first instance, on an interlocutory application. Then there was an appeal. The Court of Appeal affirmed the order and maintained the injunction as it stood….
Stone, it seems, is a town in Staffordshire, containing some 6,000 inhabitants. It has a supply of water admirably suited for brewing, so the Appellant says, and his opinion is fortified by scientific analysis. Anyhow, Stone is famous for its ales, which are known in that part of England as “Stone Ales,” and one special quality is known as “Stone Ale.” These ales all come from the Plaintiffs’ brewery, which is said to have been established in Stone for a hundred years, and to have flourished there all that time without a rival, and even without any attempt at rivalry worth mentioning. Whatever reputation, therefore, is attached to “Stone Ales” or ” Stone Ale” above other ales known in the district is due to Plaintiffs and their predecessors in business. The value of that reputation, whatever it is, no one knows better than the Appellant. He is the proprietor of several hotels and public-houses in Liverpool, and in his different establishments he has dealt largely in “Stone Ales” procured from the Plaintiffs. In 1887 he determined to set up as a brewer himself. He had to find a site for his business. Where was he to go? After much consideration, influenced as he says by the peculiar virtue of the water, he resolved to go to Stone. One thing leads to another. Having gone to Stone, he could think of no better name for his brewery than “Stone Brewery”; he could find no more fitting designation for his ales than “Stone Ales.” Then came these proceedings. It is not the first time in these cases that water has got an honest man into trouble and then failed him at the pinch. Neither Mr. Justice Chitty nor the learned Lords Justices could be persuaded that the Appellant was attracted to Stone by the peculiar virtue and chemical properties of the water. They thought he went there simply with the object of stealing the Plaintiffs’ trade, and in the hope of reaping where he had not sown. They were satisfied that he meant to make a fraudulent use of the term “Stone Ales” and that he could not possibly use that term honestly.
With the judgment that has been passed upon his character and conduct the Appellant does not quarrel. Protesting that it was somewhat harsh, his counsel use it to point their argument. Granted, they said, that the Appellant is a fraudulent man – as fraudulent as you please – still his demerits cannot enlarge the Plaintiffs’ rights. The injunction being absolute and unqualified in its terms will secure to the Plaintiffs the monopoly of brewing in Stone. With such water Stone might be as Wrexham or Burton. The injunction makes it the private preserve of the Plaintiffs. Then, they argued, the Appellant is not to be deprived of his rights because he has behaved badly. All the Court ought to do is to keep him strictly within his rights. He had a perfect right as everybody has to set up a brewery in Stone. Ale brewed in Stone is Stone ale for all that the Court can say or do. The Appellant is entitled to call his ale what it really is, and to sell it under its true name if he takes care that his customers are not induced to believe that it is of the Plaintiff’s manufacture.
His words show a number of traits characteristic both of law and a wider context.
For the law, it shows how important the facts are to any judicial contest. Montgomery had owned hotels and pubs in Liverpool on the coast. He had dealt in Joule & Co.’s Stone Ales. He knew how good they were.
Intent on setting up a brewery, and scouting around, he ends by setting up his shop in, lo, Stone, Stafford… That’s a 50 mile trip inland to the southeast. You can see where this is going to go…
The wider context concerns the style of court decisions then, and whether today’s simpler way of writing is better. British and Colonial justices under Queen Victoria tended, as writers in general then, to write without economy of expression, leisurely, sonorously. The style was often ornate, roundabout.
This allowed however some subtlety. You can see how Lord Macnaghten develops his slightly mocking tone, indeed as he says, one thing leads to another, and his finding is not hard to intuit some time before he gets there.
The tone sets the frame for his judgement, in which the other lords concurred.
Only much later did judicial writing tighten-up – I mean in style not reasoning. The post-WW II law lord Denning, influential in my time of law studies, was a major force in this. He would write in short bursts and use more simple language than the Latin-loving Victorians.
Lord Denning, perhaps contrary to first impression, was not from a modest background. He issued from a well-known clan, his brother, this from 40-year old memory and no I didn’t check Wikipedia, was an Admiralty Sea Lord.
The law Denning might have started his judgment this way:
Stone is a quiet town in Staffordshire. At least, normally it’s quiet. Its citizens like their beer. Many Britons do. Their favour has always been granted to a local brewer, Joule’s. “Stone Ale” is its prized specialty. It’s been in the area forever. But a new man set up in brewing there recently. Montgomery. His firm’s name is Montgomery’s Stone Brewery. Montgomery has made it clear he wants to sell his “Stone Ale” in Stone. Joule quite naturally objects. This simple trading dispute must now be ruled on by the House.
Today, the judges of the Canadian courts, following often American example, write in a simpler style than an earlier time. I’d guess Lord Denning and the plain language movement he helped inspire mean most common law justices do the same in 2018.
It’s two ways to get to the same result, I’m not sure one is really better than the other. Yes, a spare style seems to favour the layperson, but then every field has its lexicon, eh? If you simplify too much a gibberish of a different kind results.
Anyway, in our western systems and those inspired by them, you can count on the judges to get the law right, or the appellate judges.
But the facts are all-important too, and all good judges take care to understand them well.
But back to beer: Joule’s has arisen again, with original recipes to boot. See all details here. The original firm stopped trading in 1974, the phoenix arose in 2010. The beer flows in and about Stafford and Shropshire again. More than that, the description on the brewery website of the pale ale (none today are denominated “Stone Ale”) sounds enticingly authentic.
For one thing, the brewer last employed by the original Joule’s worked on the recreation. I love recreations, as you can tell.
The new brewery is located about 18 miles westerly from Stone, in Market Drayton. Close enough lads of Stone, Shropshire lads (and lasses) too, of age mind.
Note re images: the first image above was sourced from Alamy here, and the second at the Joule’s Brewery website linked in the text. All intellectual property therein belongs solely to the lawful owner, as applicable. Images used for educational and historical purposes. All feedback welcomed.