'Good morning,' he whispered. 'I'm appearing in your case - for the department. My name is Butler.' Smiling courteously, as became a senior approaching a junior member of the bar, he offered his hand.
Alan shook the soft, well manicured hand. 'Yes,' he murmured, 'I know.'
'Harry Tolland is representing Nordic shipping.' Still whispering, the other gestured to the lawyer who had accompanied Captain Jaabeck. 'They're the owners of the ship; I expect you knew.'
'No,' Alan breathed, 'I didn't. Thank you.'
'That's all right, old chap; just thought you'd like the information.' Again A. R. Butler put a hand on Alan's shoulder. 'Interesting point you've raised; we'll have a good go at it.' With a friendly nod he moved back to the other side of the courtroom.
Alan glanced across, intending to return courtesy for courtesy by greeting Edgar Kramer. For a moment he caught Kramer watching him. Then, his expression bleak, the civil servant turned away.
A hand covering his mouth, Tom said, 'Ease round and rub your coat against me - right where the great man touched you.'
Alan grinned. 'Very friendly, I thought.' But the outward confidence was a pose. Tension and a growing nervousness were creeping over him.
'One of the nice things about our profession,' Tom murmured, 'everybody smiles before they plunge the knife in.'
The second reading had begun.
Normally by now the courtroom would have been almost empty, but so far only one or two of the other lawyers had left. It was obvious they were staying because of the interest the
Duval case had aroused.
A divorce matter immediately ahead had been dealt with.
Now there was an air of expectancy. As he had before, the clerk called: 'In the matter of Henri Duval.'
Alan rose. When he spoke, unexpectedly, his voice was strained.
'My lord...' He hesitated, coughed, then stopped. There was silence in the courtroom. Reporters turned their heads.
The appraising grey eyes of Mr Justice Willis were upon him. Now he began again.
'My lord, I am appearing on behalf of the applicant Henri Duval. My name is Alan Maitland, and my learned friend Mr Butler' - Alan glanced across the court as A. R. Butler rose and bowed - 'is appearing on behalf of the Department of Citizenship and Immigration, and my learned friend Mr Tolland' -- Alan consulted a note he had made a moment ago -'represents the Nordic Shipping Company.' The lawyer beside Captain Jaabeck rose and bowed to the judge.
'All right,' Mr Justice Willis said gruffly, 'what's all this about?'
For all its gruffness, the question had a quiet irony. It was unlikely that even the remote figure of a Supreme Court judge - who presumably read newspapers - could have remained unaware during the past eleven days of the existence of Henri Duval. But it was a reminder also that the Court would concern itself solely with facts and submissions properly presented. Moreover, Alan was aware that the arguments he had outlined two days earlier must be restated here in full. Still nervously, at times his voice halting, he began. 'If it please Your Lordship, the facts of the matter are these.' Once more Alan Maitland described the status of Henri Duval aboard the Vastervik, coupled with Captain Jaabeck's 'refusal' on two occasions to bring the stowaway before immigration authorities ashore. Again he submitted the argument that this constituted an illegal imprisonment of Duval, violating, in turn, a principle of individual human rights.
Even while speaking Alan was aware of the flimsy structure he was building. But though his fluency and confidence were less than on the previous occasion, a dogged obstinacy kept him pounding on. To his right, as he spoke, he was aware of A. R. Butler, QC, listening politely, one ear cocked, and occasionally making a note on a pad of paper. Only once, as Alan glanced sideways, did the senior lawyer's expression betray a faint indulgent smile. Captain Jaabeck, he could see, was following his words intently.
Again, as he knew he must in these surroundings, Alan was careful to avoid reference to the emotional aspects of the case. But throughout, in a crevice of his mind, he remembered the young stowaway's haunting face with its strange admixture of hope and resignation. In an hour or two from now, which would dominate - the hope or resignation?
He ended with his own closing argument of two days ago: even a stowaway, he claimed, had the right to demand a special Department of Immigration inquiry into his immigration status. If such an inquiry were denied to all comers, perhaps even a bona fide Canadian citizen - temporarily without proof of identity - might be refused access to his own country. It was the same argument which had elicited a smile from Mr Justice Willis when presented before.
There was no smile now. Only, from the white-haired erect figure on the bench, a bleakness of impassivity.
Miserably conscious of what he thought of as his own inadequacy, after an address of ten minutes, Alan sat down.
Now the confident, broad-shouldered figure of A. R. Butler rose. With effortless dignity - like a Roman senator, Alan thought - he faced the bench.
'My lord' - the urbane, deep voice filled the courtroom - 'I have listened with both interest and admiration to the argument of my distinguished colleague, Mr Maitland.'
There was a studied pause in which Tom Lewis whispered, 'The bastard managed to say you were inexperienced without ever using the word.'
Alan nodded. He had thought the same thing.
The voice continued: 'Interest because Mr Maitland has presented a most novel inversion of a somewhat simple point of law; admiration because of a remarkable ability to make bricks - or seem to make them - from the merest handful of legal straw.'
From anyone else it would have been crude and brutal. From A. R. Butler, delivered with a cordial smile, the words seemed a good-natured homily with the merest edge of gentle ribbing.
Behind Alan someone tittered.
R. Butler continued, 'The plain truth of the matter, as I shall seek to show, my lord, is that my friend's client, Mr Duval, of whose peculiar problem we are all aware and to which, I may say, the Department of Immigration is extremely sympathetic ... The truth of the matter is that Duval is detained, not illegally, but legally, pursuant to a detention order, issued with due and proper process under the Immigration Act of Canada. Furthermore, I shall submit to Your Lordship that the captain of the vessel Vastervik has acted with entire legality in detaining Duval, as my 'earned friend reports is being done. In fact, if the ship's captain had failed to do this...' circuitously, sometimes returning again to nibble, A. R. Butler dealt effectively with each item in turn, then moved swiftly to the next.
His arguments were convincing: that the detention was legal; that everything necessary by law had been done; that the ship's captain had not erred nor, in its procedures, had the Department of Immigration; that, as a stowaway, Henri Duval had no legal rights and therefore a special immigration inquiry could not be demanded; that Alan's argument about a hypothetical Canadian citizen being denied entry was so flimsy as to be laughable. And laugh - good-naturedly, of course -A. R. Butler did.
It was, Alan admitted to himself, a superb performance. A. R. Butler concluded: 'My lord, I ask for dismissal of the application and discharge of the order nisi.' After bowing ceremoniously, he resumed his seat.
As though a star had been on stage and gone, there was a stillness in the small courtroom. Since his original words -- 'What's this all about?' - Mr Justice Willis had not spoken. Even though emotion had no place here, Alan had expected at least some show of judicial concern, but there had been none. As far as the bench was concerned they might, he thought, have been discussing bricks or cement, and not a living human being. Now the judge moved, changing his ramrod-like position in the high-backed judicial chair, studying his notes, reaching out for ice water which he sipped. The reporters were becoming restive, Alan observed; he noticed several checking their watches. For some, he supposed, a deadline was approaching. Although it was after eleven o'clock, the room was still unusually full. Only a few of the lawyers with other business had left and now,
turning his head, he noticed that more seats behind had filled.
For the first time Alan was conscious of the sounds of the city from outside: the wind, rising and falling; traffic; a reverberating rumble that sounded like pneumatic drills; distantly a bell; and from the water front a tugboat's brass horn: perhaps a ship was leaving, as the Vastervik would leave soon, with or without Henri Duval. Well, in a moment they would know.
In the quiet, a chair scraped back. It was Tolland, the shipping-company lawyer. In a voice which rasped oddly in contrast to the mellifluous tones of A. R. Butler, he began, 'If Your Lordship pleases...'
Mr Justice Willis looked up sharply from his notes and across the courtroom. 'No, Mr Tolland,' he said, 'I need not trouble you.'
The lawyer bowed and sat down.
So that was it.
The judge's interjection meant one thing only. Alan's case had collapsed and no additional argument was needed to help demolish it.
'Well,' Tom whispered. 'At least we tried.'
Alan nodded. He supposed that all along he had expected defeat. After all, he had known from the beginning that his strategy was no more than a long shot. But now that defeat had come, there was a taste of bitterness. He wondered how much to blame was his own inexperience, his verbal awkwardness in court. If he had been more assured - as convincing, say, as A. R. Butler, QC - might he have succeeded instead of failed?
Or if he had had the better fortune to appear before another judge - more sympathetic than the austere, forbidding figure upon the bench - would the result be different now? As it happened, it would not.
In the mind of Mr Justice Stanley Willis the decision he was about to render had appeared inevitable before either lawyer had begun to speak. He had, in fact, recognized the glaring weakness of Alan Maitland's case, despite its equally obvious ingenuity, within seconds of its presentation two days earlier.
But at the time there had been sufficient grounds to grant the order nisi. Now, however - to the judge's keen regret -there were no grounds for issuance of a habeas corpus writ.
Mr Justice Willis considered A. R. Butler, QC, an exhibitionist and a poseur. The rhetoric and flowing speech, the show of affable benevolence, were histrionic tricks in the bag which might, and did, influence juries, but judges were often less impressed. Nevertheless there was nothing wrong with A. R. Butler's legal knowledge, and the arguments he had just concluded were virtually unanswerable.
Mr Justice Willis must - and in a moment would - reject the habeas corpus application. But he wished fervently that there were some way in which he could help the young lawyer Alan Maitland and, thereby, Henri Duval.
The wish had two origins. First, as an avid newspaper reader, Mr Justice Willis had been convinced that the homeless stowaway should be given a chance to land and live in Canada. From the first report he had believed that the Immigration Department should waive regulations as had been done, he knew, for countless others. It had astounded and angered him to learn that not only would this not be done, but that the Government - through its immigration officials - had taken what he considered to be an inflexible and arbitrary stand.
The second reason was that Mr Justice Willis liked what he had seen of Alan Maitland. The awkwardness, an occasional stumbling, mattered not in the least in the judge's mind; a sound lawyer, as he well knew, need be no Demosthenes.
When the Duval case had broken in the newspapers Mr Justice Willis had assumed that one of the senior members of the bar, out of compassion for the stowaway, would promptly volunteer legal aid. At first it had saddened him that no one had done so, then, at the news that a single young lawyer had filled the breach, he had been secretly pleased. Now, watching Alan Maitland, the pleasure had extended into pride.
His own involvement in the case had, of course, been entirely coincidental. And naturally no personal prejudice must influence his judicial function. All the same, sometimes there were small things a judge could do ...
It all depended, Mr Justice Willis thought, on how astute the youthful counsel for Henri Duval turned out to be.
Briefly the judge announced his reasons for upholding the argument of A. R. Butler. The captain's detention of Duval conformed to the Immigration Department's lawful detention order, the judge ruled. Therefore it was not an illegal detention for which habeas corpus could be issued. He added gruffly: 'The application is dismissed.'
Preparing to leave, Alan was gloomily putting papers into a briefcase when the same voice said distinctly, 'Mr Maitland!' Alan rose. 'Yes, my lord.'
The bushy eyebrows seemed even more formidable. Alan wondered what was coming. A sharply worded reprimand, perhaps. Others, who had stood up to leave, resumed their seats.
'You stated in argument,' the judge proclaimed sternly, 'that your client has a right to an immigration hearing. The logical course, I suggest, is for you to apply for that hearing to the Department of Citizenship and Immigration whose officials' - Mr Justice Willis glanced at the group of which Edgar Kramer was the centre - 'will undoubtedly facilitate what you are seeking.'
'But, my lord...' Alan began impatiently. He stopped, frustrated, seething. Even with legal circumlocutions there was no way you could say to a judge of the province's Supreme Court: 'What you are telling me is nonsense. Haven't you heard? - the Immigration Department refuses to grant a hearing, which is the reason we have been arguing here today.
Didn't you listen to what was said? Or understand? Or were you just asleep?'
It was bad enough, Alan thought, to have drawn a hard, unfeeling judge. To be obliged to suffer a fool into the bargain was a crowning mockery.
'Of course,' Mr Justice Willis observed, 'if the Immigration Department proved adamant, you could always apply for a writ of mandamus, couldn't you?'
Heated words sprang to Alan's tongue. This was too much to endure. Wasn't it enough to have lost without...
A darting thought stopped him. Alongside he could see Tom Lewis, his expression a mixture of impatience and disgust. Obviously, Tom also had shared his feelings about the absurd suggestion of the judge.
And yet...
Alan Maitland's mind raced back ... through half-remembered law-school lectures ... dusty law books, opened and forgotten ... Somewhere he was sure there was a key, if he could turn it... Then memory stirred; pieces fell in place.
Alan's tongue touched his lips. Facing the bench he said slowly, 'If it please Your Lordship...'
The eyes impaled him. 'Yes, Mr Maitland?'
A moment ago Alan had heard quiet footsteps going towards the outer door. Now they were returning. A chair creaked as the owner of the feet sat down. The others in the courtroom waited.
A. R. Butler had his eyes on Alan's face. They shifted to the judge. And back.
Edgar Kramer was frankly puzzled. Alan observed that Kramer was also strangely restless. Several times he shifted around uneasily in his seat as if physically uncomfortable.
'Would Your Lordship be kind enough,' Alan asked, 'to repeat the last statement?'
The eyebrows beetled. Was there the faintest of smiles beneath them? It was hard to decide.
'I stated,' Mr Justice Willis answered, 'that if the Immigration Department was adamant, you could always apply for a writ of mandamus.'
A dawning comprehension - and anger - were mirrored in
A. R. Butler's face. In Alan's mind two words drummed out like starter's pistols: obiter dictum.
Obiter dictum: that which is said by the way ... a judge's opinion, off the cuff, on a point of law not material to his immediate decision ... Obiter dictum, without binding authority ... intended for guidance ... Guidance.
Mr Justice Willis had spoken casually, as if an offhand thought had come and gone. But there was nothing casual, Alan now realized, about the mind of this shrewd judge whom he had so falsely suspected of indifference and dozing.
'Thank you, my lord,' Alan said. 'I shall apply for mandamus immediately.'
A writ of mandamus was not material today. But it could
be, if applied for. Mandamus, the ancient 'we command!' ... instructing a public officer to do his public duty ... prerogative of English kings since the Reformation, and nowadays of judges, though seldom invoked.
Such a writ, directed to Edgar Kramer with all the power of the court behind it, would compel him to hold the hearing Alan sought without delay or further question. And by obiter dictum Mr Justice Willis had made clear that a mandamus writ, if sought, would now be granted.
'Look at them huddling,' Tom Lewis whispered. 'They're in a real sweat.'
Across the courtroom, heads together, A. R. Butler, Edgar Kramer and the shipping-company lawyer were engaged in urgent, low-voiced discussion.
After a moment A. R. Butler, red-faced and no longer affable, rose and faced the bench. With barely controlled politeness, he said, 'I request Your Lordship's permission for a few moments' discussion with my client.'
'Very well.' His fingertips together, the judge surveyed the ceiling as he waited. Counsel for the stowaway had been as alert and astute as he had hoped.
Alan sat down.
'Bless his old grey hairs!' Tom Lewis murmured.
'Did you get it?' Alan asked.
'I didn't at first,' Tom whispered, 'I do now. Good for you!'
Alan nodded. Inwardly beaming, he was careful not to show it.
The judge's seemingly casual words had, he knew, placed the other side in an impossible position. The Immigration Department, in the person of Edgar Kramer, must choose immediately between one of two courses: either continue to refuse the special inquiry which Alan sought, or change its mind and grant it. If the first choice were made, Alan could apply for the writ of mandamus which would force Kramer's hand. Moreover, by taking his time about obtaining the writ and serving it, Alan could make certain that Henri Duval was ashore, enmeshed in legal proceedings, when the Vastervik sailed.
On the other hand - as Edgar Kramer had shrewdly pointed out at their first meeting - if the department granted the hearing it would have recognized Henri Duval officially, thus opening the way to further legal steps, including avenues of appeal. And this way too, chances were good that procedures could be extended until the Vastervik had gone leaving Henri Duval in Canada as a fait accompli.
In High Places Page 29
