The residuary legatees were in a very favourable position, for even if they lost the case all Shaw’s royalties after 1971 would still automatically become theirs. But if they won it the royalties would go to them immediately. ‘They may be likened to a schoolboy who has a half-share in a bottle of pop, half of which gets spilt when the bottle is opened, and who proceeds to drink all that is left because his half-share was at the bottom,’ wrote Barbara Smoker, a founder member of the Phonetic Alphabet Association. ‘Not content with having the comparatively safe bottom half of the Shaw residue, the British Museum and the Royal Academy of Dramatic Art have also been claiming in the Chancery Court whatever can be salvaged of the top half – which will be so much more now than seemed likely a year ago.’
There were seldom more than thirty members of the public in court – mainly a scattering of intellectual-looking old gentlemen, some middle-aged women in astrakhan collars and brown hats, a few young Indian and Scandinavian students of British justice. There was also the thirty-four-year-old Barbara Smoker.
Barbara Smoker occupied two attic rooms on Catford Hill. She was a freethinker, ate very little meat, and bought her clothes mainly at jumble sales. Barbara Smoker had no job, but made a meagre living by winning competitions – literary competitions and competitions on the backs of tins and packets for slogans, jingles, ditties – with a little journalism besides.
Barbara Smoker never had a job but she was always busy. On Thursdays, for example, she could be heard on her soap box at Tower Hill contradicting what the Methodist minister Donald Soper (later Baron Soper) had been saying on Wednesdays. She was a passionate campaigner, coherent, courageous, iconoclastic, unconquerable in her crusade against the Big Lie of religion. For forty years she was to persist, without a job, working round the clock as Chairman of the Voluntary Euthanasia Society, President of the National Secular Society, a champion of the Family Squatting Movement, a force within the Radical Alternatives to Prison Committee.
She had come to the Chancery Court in her dual role as secretary of the Phonetic Alphabet Association and assistant secretary of the Shaw Society. It had not been easy. When Shaw’s solicitors informed her they were allowed to divulge no information whatever, not even the date of the hearing, she took to telephoning the Public Trustee; and when she found he was never in his office, she wrote him letters which though acknowledged were never answered. Finally she had gone to the court itself, made friends with an official there, and arranged to speak to him each day until the case opened.
The setting and proceedings promised ‘little scope for cut-and-thrust comedy,’ regretted the Manchester Guardian. But amid their blue bags and pink ribbons, their interminable briefs, learned counsel essayed quite a few comic recitatives. When Charles Russell cited a precedent involving a man who left a legacy to a horse and dog which the court found was not charitable, Mr Justice Harman objected that there was no horse or dog in Shaw’s will. ‘No, My Lord, but I submit there is some analogy between a pet animal and a pet hobby.’ To which his Lordship conceded: ‘I suppose they might both be called hobby-horses.’
Sir Charles Russell was an impressive advocate on behalf of the British Museum and Royal Academy of Dramatic Art, and his speeches, enriched with many gnarled precedents and crackling Latin tags, made very pretty hearing. Listening to him from the public gallery, it took Barbara Smoker several minutes to realize that no one without prior knowledge of phonetics, and the allied subjects of typography and shorthand, could possibly understand that his mellifluous statements were mostly rubbish. It appeared that she was the one person in court who had this purifying knowledge – indeed she was bursting with it. Except for an affidavit from Daniel Jones, the Professor Emeritus of Phonetics at the University of London, and despite some expert advice from Shaw’s old colleague James Pitman (whose heart quite frankly was in simplified spelling rather than alphabet reform), the Attorney-General’s case sounded pitifully unprepared. Incredible as it seemed, he knew nothing of Jesperson and Zamenhof or even the difference between inflected and agglutinated language! When Barbara Smoker heard Charles Russell claim that the alfabet trusts would require a change of law because they were analogous to political trusts, when she saw this contention go unchallenged, knowing herself that nothing more would be involved than had been needed for the teaching of shorthand as a supplementary means of writing or the invention of Morse Code, she could bear it no longer. My Lord!
But ‘there was nothing I could do there and then unless I wanted to risk being sent out of the court’. When the case was adjourned for the day, however, and before it was resumed next morning, she was on to the Attorney-General’s counsel, and he could not throw her off. Though she was ‘a mere nobody’, Mr E. Milner Holland QC had little option but to receive her evidence.
He had no sense of the avalanche he had set in motion. From the public gallery she descended to the body of the court and into the thick of the fight. At the end of each day she had amassed thousands of potent words ready to slip into Mr E. Milner Holland’s briefcase. She filled his bag with facts – facts about David’s Neuhand, Kunowski’s Sprechspur, the Ridge-Beedle design system, the Erhard Roman Augmented and Dewey’s work on the relative frequency of English speech sounds. She gave him evidence to study in the evenings on the educational use of phonetic lettering in more than sixty West German schools, and explained why the word ‘though’ in two letters supported his case while the word ‘enough’ in four did not. Sometimes, quite often in fact, when especially horrified by the court’s ignorance she could not restrain herself from sending over sheaves of writings to him in court. She was disappointed to find that it was considered bad form for barristers to refer to notes, let alone read out well-prepared arguments. It seemed that everything must appear to flow in a spontaneous stream of inspiration. She also discovered that it was impossible for any self-respecting barrister to correct himself. But she wrote on and was pleased to see that by the end of the week, when Mr E. Milner Holland QC opened his tremendously bulging briefcase and she looked into its jaws, most of the material to be digested there was from herself.
Public Trustee v. Day and Others spread itself over nine days with a three-day adjournment. This was Barbara Smoker’s first experience of Chancery. Visiting Mr E. Milner Holland QC in his chambers she was horrified to find him catching up with his other cases. Each night she had been typing out her notes, while he had been merely using his train journeys for the Shaw case.
The hearing ended with Sir Charles Russell quoting a line from Androcles and the Lion – ‘Did um get an awful thorn into urn’s tootsum wootsum?’ – and querying whether a phonetic transliteration of this speech would really be charitable. Mr Justice Harman reserved his judgment for four weeks.
*
When making his will Shaw had discovered that his solicitor, unable to credit the alphabet trusts, had drafted the clauses as if they were ingenious devices for tax avoidance. He was therefore obliged to take up the pen and redraft some of these passages himself. His lucidity baffled the lawyers, while the legal repetitions and prolixities of the skilled equity draughtsman looked in their baroque magnificence like gibberish to the ordinary reader. It was ‘a marriage of incompatibles,’ admitted Mr Justice Harman when delivering his reserved judgment on 20 February 1957. The ‘delicate testamentary machinery devised by the conveyancer could but suffer when subjected to the cacœthes scribendi [urge to write] of the author,’ he regretted, ‘even though the latter’s language if it stood alone, might be a literary masterpiece’. The long and complicated document had been made when Shaw was in his ninety-fourth year but it ‘was rather youthful exuberance than the hesitations of old age that marred its symmetry,’ his Lordship remarked.
Mr Justice Harman did not sound hostile to G.B.S. He described him as ‘an indefatigable reformer’ who had acted as ‘a kind of “itching powder” to the British public, to the English speaking peoples and indeed to an even wider audience’. English orthography and pronunciation, he c
ontinued, were obvious targets for the reformer.
‘It was as difficult for the native to defend the one as it was for the foreigner to compass the other. The evidence showed that for many years Shaw had been interested in the subject. Perhaps his best known excursion in the field is Pygmalion... It was indeed a curious reflection that this same work, tagged with versicles which I suppose Shaw would have detested, and tricked out with music, which he would have eschewed... was now charming huge audiences on the other side of the Atlantic and had given birth to the present proceedings.’
Mr Justice Harman confessed to some reluctance in preventing a man disposing of his own money as he thought fit. Nevertheless this was what he was going to do. He was ‘not at liberty’ to confer a halo of charity on the trusts because they appeared merely ‘to tend to the increase of public knowledge’. In the end it was excruciatingly simple. The trusts were for an object rather than a person and an object could not complain to Chancery which therefore was not able to control the trust and so would not allow it to continue. Consequently the will created neither a valid charitable trust, his Lordship concluded, nor a valid unenforceable trust. Both trusts therefore being void, the three residuary legatees were entitled to come into their inheritance at once – as soon as all legal expenses had been settled.
This summing-up pleased the lawyers. Mr Justice Harman, they reminded themselves, was himself an Irishman. They congratulated him on a brilliant pastiche of Shaw’s style that ‘will hold its place in any company in any age,’ stated Lord Birkett. Two years later Mr Justice Harman was created Lord Justice Harman, and in 1961 his judgment found a place in The Law as Literature: An Anthology of Great Writing in and About the Law published by the Bodley Head which not long afterwards took over from Constable as Shaw’s own publishers.
‘If nothing happens, or the bequest fails through any cause,’ Shaw had written to James Pitman in the summer of 1944, ‘I have provided alternative destinations for the money which will prevent its being “left in the air” in any case.
‘I cannot guard against litigation over my definition of a British alphabet; but as I attach much more importance to advertisement of the need for the alphabet than to the success of my attempt to provide it my ghost will be perfectly satisfied if the lawyers and litigants keep the subject in the headlines for the twenty years perpetuity limit.’
The two stalwarts in this business of keeping Shaw’s alfabet in the headlines were Barbara Smoker and the half-Irish publisher and educationist James Pitman. One from Catford, the other in Chelsea, they formed an odd but admirable team. Pitman, then in his young fifties, was an engagingly eclectic character who had been an international athlete, director of the Bank of England and for the last dozen years Conservative Member of Parliament for Bath. ‘He was not very quick on the uptake,’ Barbara Smoker severely noted, and he wrote ‘in the most appalling Pitman shorthand I had ever seen’. He would end each day in chaos, but all was smoothed back into order next morning by his paragon of a secretary, Miss Blisset.
Spelling reform circulated in Pitman’s blood: it was his love, and eventually his infatuation. It was amazing to him that the judge had found his way to such a consummate misinterpretation of Shaw’s intentions. It was equally amazing that the Attorney-General had no wish to appeal. As soon as the judgment had been given, Pitman called a press conference under his own name and that of his fellow adventurer Barbara Smoker. The costs of the Chancery case were estimated at between £6,000 and £10,000 and an appeal would require over £3,000 more. Apparently undeterred by the fate of the Shaw Memorial Fund six years earlier, Pitman suggested opening a public subscription, to be managed by the Shaw Society, which would facilitate the appeal or alternatively assist the implementation of Shaw’s wishes privately. In confidence Pitman told the Shaw Society that if the subscription failed he would put up the money himself.
The press conference became front-page news when Pitman was rebuked by the Attorney-General Sir Reginald Manningham-Buller (then nicknamed Sir Reginald Bullying-Manner, and later created Viscount Dilhorne). This vexing business was beginning to plague the Attorney-General. He wished it would go away. Instead he was obliged to issue a statement reminding the press that James Pitman was not a party to the case. Naturally he would appeal if there were grounds for doing so. But, of course, there weren’t. On 7 May the two of them clashed again and their irritated exchanges occupied twelve columns of Hansard’s official report, further appeasing Shaw’s ghost.
James Pitman and Barbara Smoker disagreed on many things. They disagreed on the conduct of the case in Chancery, on the legitimate grounds for an appeal, and on the conflicting merits of simplified spelling versus phonetic reform. But they campaigned together in Shavian style. While he kept matters boiling in the House of Commons, bending some ears and boxing others, she composed press statements from her lair in the Shaw Society which were quoted in news bulletins and reproduced in The Times. She did more: throwing out many thousands of words, loaded with research findings, in lectures, articles, and unanswered correspondence to the Attorney-General. ‘But I do not kid myself that it does very much good,’ she admitted.
Barbara Smoker and James Pitman could not reach the Attorney-General but they did force some action out of the Public Trustee who, on the last day allowed, lodged an appeal. His case was the same as it had been in the Chancery Court, namely that the trusts might be valid even if not charitable, and that Shaw’s wishes should be implemented. Knowing by now that this was a futile position in law, and influenced perhaps by his Dickensian name of Mr Baulkwill, many Shavians believed that the Public Trustee had secretly been supporting the British Museum. On appeal this case had become a pretence behind which negotiations for an out-of-court settlement could take place. ‘Efforts are being made to reach agreement, I understand, between certain beneficiaries under the will and the Public Trustee, who is Shaw’s executor, and the Attorney-General,’ reported the Daily Telegraph on 29 October 1957.
When Public Trustee v. Day and Others came up before the Court of Appeal on 19 December, the court approved the terms of this agreement. ‘My only regret,’ said the Master of the Rolls, Lord Justice Romer (who was assisted by Lord Justice Ormerod), ‘is that we are deprived of hearing what might have been very interesting arguments.’ Counsel for the Public Trustee agreed: ‘From a lawyer’s point of view it is rather a pity.’ Counsel for the Attorney-General, for the Trustees of the British Museum and Royal Academy of Dramatic Art, for the Governors and Guardians of the National Gallery of Ireland all joined in the laughter.
*
The terms of this compromise were made public by Mr Baulkwill immediately the appeals had been dismissed. A sum of £8,300 (equivalent to £112,000 in 1997) had been entrusted to him by the residuary legatees and he was allocating £500 of this amount as the prize in a competition for the new phonetic alfabet. The closing date was to be 1 January 1959, and he had appointed a committee of assessors to help him with the task of finding a winner: Peter MacCarthy, Head of the Department of Phonetics at the University of Leeds, Alan Dodson, chief typographer at the Stationery Office (who later resigned on going to live in South Africa), and James Pitman. The copyright of the new alfabet would be vested in the Public Trustee who would encourage the English-speaking world to use it. ‘It will take any intelligent person only 24 hours to learn it with slow progress,’ James Pitman predicted.
With an army of 50,000 transliterated copies of Androcles, Pitman believed the new model alfabet would prove invincible. But to Barbara Smoker’s mind £8,300 was ‘a paltry sum’ which might possibly fund a bi-alphabetic Androcles but could never promote the vital statistical survey into phonetic economy. ‘The three residuary legatees may confidently expect to share more than a hundred times the alphabet allocation,’ she complained; ‘so they have hardly strained the quality of mercy in favour of a cause which their benefactor had at heart.’
She too had this cause at heart. But she could not carry her complaints too far wi
thout appearing churlish to James Pitman. It was he who had negotiated the £8,300 and without him the poor alfabet might have received nothing at all. Alternatively it might have won the appeal. Once more they disagreed, once again they sank these disagreements in their adjoining passion. They wanted to free the association between ideas and signs from common conventions. For the subject held a compelling beauty for them. They knew the public was deaf to these harmonious symbols and their reverberating possibilities. Nevertheless, like the person who invented zero in the numerical system and gave rise to dreams of riches, they shared a common purpose of lifting this alphabetic burden from the human mind. In their differing styles, they dreamed of replacing man’s antiquated utensils and unearthing the clue to a mystery: why was it that spoken communication had always been comparatively rapid, easy and delightful, and written communication cumbrous and wearisome? Was there a deficiency in the optic nerve, a superiority in the aural nerve? This was a fundamental question on which the continuation of our literary tradition might depend. ‘Why do we use a long series of arbitrary marks to represent what the voice utters at a single effort,’ Sir Isaac Pitman had asked in his Introduction to Phonography. ‘Why, in short, are not our written signs as simple as spoken sounds?’ Shaw had reminded James Pitman of his grandfather’s words when inviting him to keep a friendly eye on the progress of his will. To carry through the alphabetical clauses in this will, ‘which generously and ingeniously sought to achieve for the language he so greatly loved the dearly cherished hopes of an exceptional man’, was now James Pitman’s sacramental mission.
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