Dictionary of National Biography, 1927 supplement/Fry, Edward

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FRY, Sir EDWARD (1827–1918), judge, was born in Union Street, Bristol, 4 November 1827. He was the second son of Joseph Fry (1795–1879), the sixth in descent from Zephaniah Fry, a member of a Wessex family long established at Corston, near Malmesbury, who followed George Fox and was imprisoned as a recalcitrant quaker in 1684. Edward Fry’s paternal great-grandfather, Joseph Fry [q.v.], abandoned medicine for business; the latter’s son, Edmund Fry [q.v.], who also abandoned medicine for trade, was the most learned type-founder of his day. Joseph Fry, the father of Edward, was an omnivorous reader with strong free-trade, liberal, religious, and philanthropic interests; his wife, Mary Ann, daughter of Edward Swaine, of Henley-on-Thames, traveller for a firm of druggists, was an able, self-confident, buoyant woman, with very strong quaker convictions, very decisive judgements in practical matters, and a love of poetry. Edward’s father and his quaker friends instilled into the boy an intense love of observation, and a lifelong interest in scenery, animals, and more especially plants—‘which, I hope, prevented my growing into a mere lawyer’. His earliest recollections were of the Bristol riots of 1831. His home education included Latin, French, and German. The study of Greek was postponed, against his wish, till he had to prepare for Bristol College in 1841. There he and his elder brother, Joseph Storrs Fry [q.v.], were ridiculed at first for their quaker dress and language. Edward at once made his mark and gained a medal for English verse. The college, however, was closed and Dr. James Booth [q.v.], the head master, opened a private school. Edward records that at the age of fourteen he greedily devoured Berkeley’s New Theory of Vision, with a permanent effect on his outlook on matter. With Walter Bagehot, who was at the same school, he formed a fruitful and stimulating friendship.

At the end of 1842 schooldays were over, and from 1843 till he went to London in October 1848 Fry was in business and acquired a practical knowledge of accountancy and shipbroking. He did not take to a mercantile life, but he found time to read widely in the classics, literature, and history, and actually wrote at the age of nineteen A Treatise of the Elective Monarchies of Europe (1846). In the spring of the same year he sent to the Zoological Society of London a paper on The Osteology of the Hylobates agilis, based on a remarkable specimen which had lived in the Clifton Zoological Gardens. This paper and another on The relations of the Edentata to the Reptiles, especially of the Armadilloes to the Tortoises, were published by the society. He worked very hard at zoology, and in 1849 in the London matriculation examination secured the prize for that subject, beating (Sir) William Henry Flower who was to become the head of the Natural History Museum at South Kensington. But he was also interested in the study of the osteology of the skull, having seen fossil bones at Weston-super-Mare as early as 1838, and he worked with William Budd [q.v.], who encouraged his surgical enthusiasms. Fry also found time for thought on the subjects of free trade and education, and as the result of a continental tour in 1848 contributed an article on Germany in 1848 to the London University Magazine.

After this visit Fry decided to go to the bar, and with this in view he entered University College, London, where Thomas Hodgkin and Walter Bagehot were fellow-students. After making a brilliant mark at the college, he took his B.A. degree in 1851. He entered the chambers first of Bevan Braithwaite, the conveyancer, then of Edward Bullen, the eminent special pleader in the Temple, and lastly of (Sir) Charles Hall, the equity draughtsman, and was called to the bar at Lincoln’s Inn in 1854. The beginning was not auspicious. He was called at a moment when family financial affairs had been giving temporary anxiety, and for a long period briefs failed to flow in. But he was working all the while, and soon after the publication (1858) of his well-known book, A Treatise on the Specific Performance of Contracts, the tide began to turn. Fry, in the time of probation, also produced a volume, Essays on the Accordance of Christianity with the Nature of Man (1857), which secured the approval of Baron von Bunsen, who expressed surprise that there was any one in England who would write such a book.

The early years in London from 1848 to 1859 were haunted by fear of failure. Fry’s tastes were austere and his judgement too well balanced for him to entertain what seemed like false hopes. But sadness and fear of failure ended when he married in the Friends’ meeting-house at Lewes in 1859 Mariabella, daughter of the quaker barrister, John Hodgkin [q.v.]. It was about this time that Fry discarded the external peculiarities of quakerism as not being really connected with religious life. In 1859 he issued a pamphlet on this subject.

From 1859 until he was raised to the bench in 1877 Fry acquired a steadily growing practice, not only in Chancery and company work but at the parliamentary bar. He took silk in 1869 and joined the court of Vice-Chancellor James, competing with (Sir) Richard Paul Amphlett and (Sir) Edward Ebenezer Kay, who, like himself, were later to sit in the Court of Appeal. He quickly made his mark by a convincing argument in a company case in which he was opposed by Lord Westbury, Sir Roundell Palmer, and others. He succeeded and was warmly congratulated by his opponents. When James became a lord justice, Fry practised for a time before Vice-Chancellor Bacon, but eventually migrated to the Rolls court, presided over by Lord Romilly and, after 1878, by Sir George Jessel. But pressure of work in the House of Lords made it necessary for him soon to ‘go special’. This did not long have the desired effect, and his work was greatly on the increase when, in April 1877, he was offered by Lord Cairns the additional judgeship in the Chancery division authorized that year by statute. He accepted the offer with considerable misgiving, and characteristically set to work to put in writing his conceptions of his new duties. His precepts are worthy of study by all judges. Fry was the first judge appointed after the Judicature Act had merged the high court of Chancery in the High Court, the first Chancery judge to bear the title of Mr. Justice and to go circuit. His knighthood followed in the usual form. He at first dreaded the circuit work, but came to like it, and impressed the bar with his judicial versatility.

Probably Fry’s principal legal achievement took place before he passed in 1883, on the death of Sir George Jessel, to the court of appeal. The Judicature Acts of 1873 and 1875, in addition to the reorganization of the courts, had provided a body of rules to regulate practice in the separate divisions of the new High Court. After some years these rules needed revision as the result of experience, and it was also necessary to provide a comparatively inexpensive machinery enabling trustees, executors, and beneficiaries to secure necessary judicial aid without the ruinous costs of an administration suit, often enough undertaken for the sake of the costs. Fry was on the rule committee of the judges, and with respect to this particular evil he regarded his work as one of the best actions of his life. In fact ‘he invented the procedure by originating summons which effected a beneficial revolution’. Lord Cozens-Hardy [q.v.] also says that the gradual development of the new system of practice which replaced the old practice of the high court of Chancery might almost be called the invention of Fry.

From 1883 to Whitsuntide 1892 Fry sat in the Court of Appeal with, among others, Lord Esher, Lords Justices Baggallay, Cotton, Lindley, and Bowen. Lord Esher tried Fry’s patience and temper sometimes, but on the whole these two very different men got on well enough, while the relations between Fry and Lindley and Bowen were the happiest possible. Sir Alfred Hopkinson [Memoir of Sir Edward Fry, p. 81] says that Lindley, Bowen, and Fry together ‘contributed invaluable work in the development of English case law at a time when there was a special need for men who possessed such qualities as his [Fry’s] for dealing with the new conditions then arising’. The same writer says of Fry, ‘no better example of this power to master fully the most complicated facts, to state the relevant matter clearly, to draw from a long series of precedents the true principles to guide a decision and to apply them fearlessly, can be given than the judgment delivered by him and adopted as the judgment of the whole Court of Appeal in the Banstead Common case’ (Robertson v. Hartopp, 1889).

Sir Edward Fry decided to retire in 1892 on the completion of his fifteen years on the bench. Actually there was a quarter of a century of active life before him and he was at the height of his judicial powers. He was somewhat weary of the noise and turmoil of the courts and longed to live permanently in the country with more leisure for reading and travel. The Frys left London for their country home at Failand, near Clifton. There the ex-judge sat in the local court of petty sessions, and from 1899 to 1913 took the chair of quarter sessions and an aldermanship of the Somerset county council. He was eighty-six when he retired from this work. From time to time he also sat on the Judicial Committee of the Privy Council.

Various estimates exist of the judicial capacity of Sir Edward Fry. Probably the final estimate will be that he was a great judge, though his abilities were never tested by a seat in the House of Lords. Infinitely painstaking and versatile to an unusual degree, with a very large range of knowledge, he combined a passion for seeking out first principles and for doing justice, with a fixed determination not to move out of the ambit of the case as limited by the facts before him. His strictly logical mind in these circumstances tended not only to limit the application of a judgment, but to rely on a somewhat technical view of the facts and of the law. He was working in a difficult period of transition from the old practice to the new, and his type of mind was of peculiar value in the period 1877 to 1892. In the House of Lords he might have given freer scope to his passion for first principles than was possible in the new Supreme Court. When he was free of highly technical civil procedure he was, whether in cases at quarter sessions or in his writings on legal themes, capable of the longest outlook. Probably, when, the history of English law for the period falls into perspective, it will be found that Fry did more than any other lawyer, with perhaps the exception of Lord Cairns, to secure perfect continuity in the adaptation, under purified conditions of civil procedure, of the rules of law to modern social conditions.

Fry’s later life was one of singular and beneficent activity. He took more than four years of leisure and travel, and then, when on the verge of seventy years, he plunged once more into the turmoil of work. He accepted in 1897 the offer to preside over the royal commission on the Irish Land Acts, an office which he filled with such capacity, knowledge, and tact that his services were at once widely called upon. In 1898 he acted as conciliator, under the Conciliation Act of 1896, in the colliery strike of South Wales and Monmouth, and, although the conciliation failed, his report led to the termination of the strike; the men had fall confidence in him. In 1901 he acted as arbitrator in the Grimsby fishery dispute; in 1902 he sat as president on the court of arbitration connected with the water companies of London. His remuneration for this heavy work was £5,000, of which he returned over £3,000 as he declined to receive more than would have made up his salary if he had been sitting as a lord justice. In 1906 and 1907 he acted as arbitrator between the London and North Western Railway Company and its men, and issued an award (February 1909) that worked smoothly and well for a time. He declined any fee for ‘the most tiresome piece of business which I ever transacted’.

In the meantime Fry was brought into touch with international affairs in 1902–1903 by acting as arbitrator at the Hague between the United States and Mexico in the pious funds of California dispute, the first case to be brought before the Hague tribunal created by the first Hague Conference of 1899. In November 1900 he had been given a place on the list of judges for this court. The five arbitrators, after some difficulties, settled and issued their award. Fry’s next task was to act as the British legal assessor on the commission appointed to deal with the North Sea (Dogger Bank) incident in October 1904, when the Russian fleet attacked in a moment of panic the British herring fleet—an incident that threatened war. Fry’s work on the commission—the findings of which upheld the British case—was highly commended. He played an active part at the second Hague Conference of 1907, when he was the doyen of the conference as ambassador extraordinary and first plenipotentiary delegate of Great Britain. Fry, although an octogenarian, made his personality felt; he took a leading part in the debates, and was entrusted by the British government with the duty of raising the question of the limitation of armaments and of making the offer that Great Britain would exchange information with any other nation on the subject of naval construction. In the next year he again acted at the Hague as one of the arbitrators in the quarrel between France and Germany over the Casablanca incident. In May 1909 the award was made, and the two nations acted on it and exchanged apologies according to the sentence of the court.

The remaining nine years of Fry’s life were occupied with the various pursuits, literary, scientific, and educational, in which he delighted. His interest in the university of London lasted for nearly half a century. He joined the council of University College during the busiest of his years at the bar, and strove hard and successfully to secure a teaching university for London. He did much on the senate of the university to bring into the university all the institutions of high educational character in the metropolis. The scheme which eventually was adopted was not very different from that for which he had always striven. His efforts were not limited to London. In 1906 he presided over a commission to inquire into the condition of Trinity College, Dublin, and of the Royal University of Ireland with a view to the solution of the problem of university education in Ireland. He dissented from the main report, and the view taken by himself, Sir Arthur W. Rücker, and (Sir) J. G. Butcher that the ancient foundation of Trinity College should be preserved was accepted by Mr. Birrell when he became chief secretary in 1907.

Fry, who on two occasions declined the offer of a peerage, was created G.C.B. in 1907; he was also elected fellow of the Royal Society (1883) and honorary fellow of Balliol College, Oxford (1894). He died 18 October 1918 at Failand. He had nine children, two sons and seven daughters, of whom one died at the age of four. Lady Fry survived him.

[The Law Reports, passim; J. B. Scott, The Proceedings of the Hague Conferences, 1920; Agnes Fry (daughter), A Memoir of the Right Honourable Sir Edward Fry…compiled largely from an Autobiography (containing a bibliography of his numerous publications from 1846 to 1913), 1921.]

J. E. G. de M.