Transcript

Of

John Budd Phear [Obituary]

Trans. Devon. Assoc. vol. XXXVII, (1905), pp. 35-38.

by

J. Brooking-Rowe (Ed.)

Prepared by Michael Steer

The obituary was read at the Association’s July 1905 Princetown meeting. Sir John (9 February 1825 - 1905)  was a judge and author who became the 13th Chief Justice of Ceylon. He was appointed on 18 October 1877 succeeding William Hackett and was Chief Justice until 1879. A further concise obituary is presented in the Dictionary of National Biography, 1912 Supplement. The Association’s obituary, from a copy of a rare and much sought-after journal can be downloaded from the Internet Archive. Google has sponsored the digitisation of books from several libraries. These books, on which copyright has expired, are available for free educational and research use, both as individual books and as full collections to aid researchers.

John Budd Phear. Sir John Budd Phear was born in 1825, and was the eldest son of the Rev. John Phear, Rector of Earl Stonham, and Catherine Wreford, daughter of Samuel Budd, of North Tawton. His father's brother was the Rev. S. G. Phear, late Master of Emmanuel College, Cambridge. He was educated at Pembroke College, Cambridge, and graduated sixth wrangler in 1847. Afterwards he was elected to a Fellowship at Clare, where he became mathematical lecturer and assistant tutor. In 1854 he was called to the Bar by the Inner Temple, and ten years later he was appointed Judge of the High Court of Judi- cature, Calcutta, where he remained until 1876. In 1865 he married Emily, the daughter of Mr. J. Bolton, of Burnley House, Stockwell, by whom he had three children, a son and two daughters. In 1877 he was knighted, and appointed Chief Justice of Ceylon. On the news of the death of Sir J. B. Phear reaching Ceylon, the Chief Justice, the Hon. Sir Charles Peter Layard, announcing it to the Court, expressed the great regret with which the intelligence had been received. He said that,

"Unfortunately for his contemporaries and for the Colony at large, he did not continue very long as chief magistrate of this island. During the short time he presided on the Bench he won the respect and regard of his colleagues and of the whole body of the legal profession, by whom he was much beloved. His sterling ability and unflagging industry were his most remarkable characteristics', and his kindliness to the younger members of the Bar will ever be remembered by those who had the good fortune to come into direct contact with him. He earnestly endeavoured to eradicate from our procedure fictitious causes of action, and the subsequent overruling of his dicta on that point I, for one, however regretted. Though he has passed away, his lucid and clear expositions of the law have left an indelible mark in the administration of justice in this Colony."

In acknowledging the remarks of the Chief Justice, Mr. P. Ramanathan, the leader of the Bar, said that his lordship had accurately described the qualities of the late Sir J. B. Phear, who was one of the most distinguished judges that ever graced the Bench of the Supreme Court,

One of the first services he rendered to the profession was the institution of a weekly publication of authorized reports of cases decided on appeal by the Supreme Court. He found that the Judiciary of the island went without authorized law reports, and that it was not unusual in those days for judges to hear cases elaborately argued, only to find later on that the very points involved in them had been argued before and determined by earlier judges. The minor magistrates also had no opportunity of becoming familiar in proper time with the decision of the Appellate Court. Sir John corresponded with the Government, and brought about the publication of the "Supreme Court Circular."

"Another service earned for him speedily the gratitude of the whole island. At the time he assumed office the Supreme Court had gone greatly into arrears. Cases sent up in appeal lay undisposed of for eighteen months, much to the inconvenience of suitors. Sir John Phear addressed himself to the task of rendering speedy justice in appeal He introduced the routine of appellate judges sitting almost every day in the week. By assiduous work he cleared off all arrears in the course of eighteen months, which contributed not a little to the peace of the country and to the elasticity of trade in the island".

Another service, the highest and best in the estimation of the Bar, was his training of the Bar and his demonstrating to it the truth that the so-called “uncertainty of the law " is nothing more than the uncertainty of ill-trained judges as to the true facts of the case and the proper principles of law applicable to it. Sir John severely condemned inaccurate statements of facts, and was ever on his guard against the colouring given to a case by inconclusive arguments. He would accept facts and legal principles only. He trained the members of the Bar to be not only accurate in regard to the facts of the case, but also guarded in the expression of opinions. He had a way all his own of manifesting errors of thought and faults in reasoning. Above all, he made the Bar argue cases upon first principles of law. Before his advent legal principles were of little avail in the determination of a case unless supported by a judgment of a competent court here or in England. After Sir John's arrival, if in arguing a case an advocate cited a decided case without going into first principles, his lordship would say, "I do not want authorities ; let us solve this case even as a mathematician would solve a problem, by applying the axioms and propositions we have learned in our books. Advocates were thus encouraged to look up the first principles of law applicable to the case and to carefully apply them. Sir John Phear would often help them in the art of applying principles to facts. If they passed on to authorities too speedily, he would say, " We do not want authorities just yet; they are only of corroborative value. Let us solve the question by the proper application of first principles, and then look into authorities to discover whether our conclusions on first principles are corroborated by them." In this way first principles became paramount. Before his time legal principles had become so elastic and uncertain by pronouncements from the Bench that it was difficult to advise clients. During Sir John Phear's time these difficulties disappeared. Lawyers were able at the outset almost to prophesy what would be the result of a case in appeal. Training such as this one can never forget, nor cease to be grateful for.

Soon after his return to England he came into Devonshire to live, taking up his abode at Marpool Hall, Exmouth. He very speedily joined the Association, and took a very keen interest in its doings. His contributions to the "Transactions' were frequent, and in 1886 he was President. So recently as 1904, at the meeting at Teignmouth, he read a paper on “The Hide Examined." Sir John was an ardent Liberal He made three attempts to enter the House of Commons, each unsuccessful. In 1885 he stood for the Honiton Division, in 1886 for the Tavistock Division, and in 1893 for the Tiverton Division. He was a D.L. and J.P. for the County of Devon, a Chairman of Quarter Sessions, and for some time Chairman of the Standing Joint Committee. He was the author of " Elementary Mechanics " (1850), "Elementary Hydrostatics" (1852), "Rights of Water" (1860), "The Aryan Village in India and Ceylon " (1880), "International Trade," "Notes on Money," and other pamphlets. He died on 7 April, 1905, at his residence, Marpool Hall, in his eighty- first year, after a short illness, greatly regretted by all who knew him.