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.'