notion of law was entirely made up of cases. In short, it was the law of cases, and not the law of principles. Bayley (Sir John) at Nisi Prius had a desire (I think quite insane) of endeavoring to reconcile all the evidence, and would adopt that view of a cause which seemed to do So. So Parke was for reconciling all the cases (Heaven help him!), and thought a decision that would seem to do so must be right. mon Law, Sir Fitzroy Kelly, presided in the Court of Exchequer. When he was appointed, he wrote in his old-fashioned formal way to his pupil: I accept your offer of allegiance much as an emperor of Germany or Austria would take fealty, suit, and service from a king of Prussia. Don't, however, be a Count Bismarck with me; and I shall take instruction and learn jurisprudence and practice from you, as you did from me some six-and-thirty years ago. Of rarely equalled ability as a lawyer, Kelly came too late to the Bench to attain eminence thereon, even if he had naturally possessed the involuntary, unconscious impartiality of an admirable judge. Of Watson and Pigott, two other occupants of the Bench in Baron Bramwell's time, little need be said; the former was a member of the Court only for a short time; the latter has been described as courteous, harmless, and unimportant. All things considered, Baron Bramwell towered above most of his colleagues; certainly no one was equally good at Nisi Prius and in Banc, in trying a prisoner or deciding a civil action. One who knew him well, professionally and otherwise, writes: The business in the Court of Exchequer when Mr. Bramwell became a member of it was larger than that of the two other Common Law Courts. In the seven years beginning 1850 the average number of cases tried in the Queen's Bench, Common Pleas and Exchequer was 433, 324, and 495. One or two of his colleagues were men of mark. Chief Baron Pollock abounded in varied, discursive vigor and intelligence, not inconsistent with indolence. He was fond of mathematics, chemistry, and mechanics; he loved to discuss Darwin's theory, or Buckle's book, or the last lecture at the Royal Institution; he was not very prone to dwell on, perhaps he did not care to be very conversant with, the minutiae of English law; his was altogether a very capable intelligence, not the less useful because he was not lifted above the earth by too many subtle ideas. Martin, his son-inlaw, was firm-set, erect, matter-of-fact, and incisive; quick to catch the sympathies of a jury; justly beloved by all who knew him; impatient of technicalities; always eager, as one of his colleagues said, to get through the rind of the orange as fast as possible, and wont to come crashing in upon subtle arguments with some such remark, thundered out in a strong accent, as this: "The man has got the goods; he ought to pay for them." Channell was a sound lawyer, somewhat dull, and, it was said, with a depressing knowledge that he was dull, who was successful in the days when the Common Pleas was the close preserve of the serjeants. On the Bench he distinguished himself chiefly by his severity to burglars, garotters and such-like gentry. Mr. More than once his strong, clear Bramwell's first instructor in the Com- words of direction to juries had effects A prisoner before Lord Bramwell always had a fair and full chance, but if guilty rarely escaped. His voice and manner were singularly impressive, and when passing sentence he rarely failed to add a few words of kindly advice and exhortation, which were often not without effect upon those to whom they were addressed. In court he was the central figure; held the reins and directed the case. However eminent the counsel who appeared before him, the jury looked to him for guidance and direction. Another friend, who had practised many years before him, recalls how often to nervous and bewildered prisoners he spoke in some such terms as thes: "Do yourself justice, and tell us boldly what you want the jury to know. What have you got to be afraid of? Take your own time; we don't want to hurry you." far beyond the case with respect to which they were spoken. It fell to him, in 1867, to try certain workmen charged with intimidation in carrying out a system of picketting. Bramwell spoke with earnestness and emphasis, and in the plainest words of this practice. He blurted out the indignation of an honest mind against tyranny; and the moral effect of his statement of the Common Law was immense. Chief Justice Erle wrote to him with enthusiasm of the terms of his direction: They are spoken by a seer; they are adopted by the strong minds of the time, and they have made the law clear that picketting, such as you tried, is not lawful. Go on and prosper, strong as that noble mastiff of your own.1 Perhaps no judge was ever more at home with a jury than Baron Bramwell; and if the case were intricate, and the special jury an unusually good one, a trial under his guidance was all that a lover of justice could desire. He was not blind to the faults of juries. "If juries had to give the reasons for their verdicts," he once said, "trial by jury would not last five years." He did not think a jury of farmers, "who are very much fatigued from being taken and shut up in a hot room," were so capable judges of facts as men trained to sift and weigh them. But the institution was to be defended if only because it popularized the administration of the law. Once, when arguing in the House of Lords, he was asked how people could enter into so stringent a covenant as that which he suggested; he answered, "My lords, they will trust to that true Court of Equity, a jury, which, disregarding men's bargains and law, will decide what is right in spite of all you say to them." And very strangely, as his own experience showed, might this "true Court of Equity" act. He was never weary of denouncing the persistent unfairness of juries to railway companies; and he well knew their ability to misunderstand everything done and said by judge, counsel, and witnesses. With the assistance of a 1 A reference to a favorite dog. special jury, he once tried at assizes an action of trespass or ejectment, the question in dispute being whether the lord of the manor or an adjoining owner was entitled to certain strips of land at the side of a road. Maps, plans, and conveyances threw little light on the matter, and many witnesses were called to prove acts of ownership. One of the witnesses was the surveyor of highways. The evidence was nicely balanced, and the learned baron took great pains to sift it, and to explain to the jury the effects of the acts proved. To his surprise, they promptly and confidently, in this obscure and difficult case, returned a verdict for the defendant. On leaving the assize town, the judge found himself in a railway carriage with one of the special jurymen. "Well, you gentlemen," he said, “had not much trouble in arriving at a verdict." "Oh dear, no!" was the reply. "After your summing-up as to those acts of ownership, it was quite clear to us that the real owner of the land was the surveyor of highways!" The jurymen had not the excuse for blundering that Baron Bramwell was long-winded and tedious, or that he leavened his summing-up with dogmatism about matters unconnected with the business before him. He could be concise and pithy-he could not be anything else. In the memoir published at his death in the Times are some instances of his terseness. Here is another told of him by the late Mr. Justice Archibald. A prisoner was tried before the baron on a charge of stealing a ham. The day was hot; the counsel were loquacious; the audience perspired, and so did the ham, the presence of which made itself felt in court as the day wore on. At last, every one being weary, came the judge's turn to sum up. He did so thus: "There, gentlemen, is the prisoner; and there, gentlemen, is the ham. Consider verdict." your Few judges had more interest in their work or a higher idea of what was needed for the performance of their duties. Lord Wensleydale had told him that no judge who did not read the reports could do his duty; and Baron Bramwell assured the common law commissioners, in 1857, that he had acted on this advice. When I was at the Bar I did not pretend to read them, and my clients knew that I did not read them, and they took me for ... better or worse with notice. But I cannot serve the public in that way, and I read them now diligently and faithfully, and they require time. . . . I read what I may suppose you may call the orthodox reports of the three Common Law Courts, namely, Ellis and Blackburn, the Common Bench Reports, and Hurlstone and Norman. I read the Law Journal reports, Equity and Common Law, and I read the Jurist reports. I read over the same case very often three times; but, if I do not do so, I am not sure that I shall not miss it, so I read it to make sure. If I find upon reading it I remember it, I do not trouble myself to read any further. I am almost reluctant to call it a labor, because, as I have said before, it is more often to me an amusement than anything else; but if it were not an amusement I should still have to do it. No doubt, if it were not there to be done, one would not do it; so that in that sense it may be said that the multiplicity of reports causes an additional amount of occupation. It may be asked, "Why does one not read the same thing in duplicate?" My answer to that is that, if I distinctly comprehend the case when I read, I do not trouble myself to read it again; but it very frequently happens that you find varieties of expression in the judgments, where they have not been considered or written, of such a character that it is quite desirable that you should read both reports. How many judges before or since have taken equal pains to keep abreast of the progress of law! And all this labor was expended by a judge who, according to universal admission, was a great master of the Common Law. One gift he had to a degree altogether unequalled by his contemporaries on the Bench-the gift of straightforward, unentangled speech. A page of Hobbes is scarcely more lucid and terse than Bramwell's exposition at its best. His judgments read like nothing so much as happy translations from the Digest; the same terseness; the same sense of a man reasoning with large practical sagacity and with the facts of life present to him; the same clearness and epigrammatic point. A friend writes on this matter: "He attached more impor tance to style than was generally thought. Speech or writing he liked to have terse. Length, repetition, or diffuseness, though sometimes necessary to make an impression on dull minds, he thought always resulted in lack of vigor; and the misuse of words he thought led to unconscious exaggeration." Another gift, not less rare, was the courageous directness and the simplicity of the solutions which Baron Bramwell in trying cases sometimes adopted. One of his colleagues, writing to him, mentions this peculiarity, and adds: Somebody would ask Paley, "How do you account for so and so?" Sir, it is a lie! and that is the solution of it," Paley would answer. A judge ought to be firm enough to call a lie a lie, and to call upon a jury to disbelieve it. The silly twaddle of trying to get something reasonable and satisfactory by mixing up truth and falsehood together should find no place in a Court of Nisi Prius. I have sometimes thought that, in the Houses of Parliament and in the Courts, there is not enough of the sternness of truth. In Parliament a man may say anything, however offensive, provided he'll say that the words did not mean what they import. An incident little known in Bramwell's life may be here noticed. The office given, to the great scandal of lawyer and laymen, to Sir Robert Collier, had been previously offered to three judges. So much was stated in the debates in Parliament in 1872. It was not generally known that the appointment was offered to Sir George Bramwell. The correspondence with Lord Selborne and Mr. Gladstone on the subject is before me, and is honorable to all concerned. Baron Bramwell wished time to consider; the government asked for a prompt answer. In the end he declined to take the office on the conditions offered. In 1876, when the Judicature Acts were about to come into operation, he was made a lord justice of appeal. Whether he showed to as much advantage in the Court of Appeal as in the court below may be doubted. Perhaps the fatigue which comes to the strongest in the evening of life was settling down upon him. But he did good work, and it was said that he kept within bounds more impetuous colleagues. When he retired he was made a peer. Mr. Gladstone, in offering him this dignity, said that it would be "recognized by the world as no more than a just tribute to your long service and the great eminence attained by your abilities and learning," and the chancellor, Lord Selborne, added, "Your long and remarkable judicial service, and the higher personal qualities which have so justly earned for you the respect and regard of all your professional brethren, as well as my own, were worthy of the distinction which the queen has conferred on you." When Lord Bramwell took his seat in the House of Lords it was not to sink into inactivity, but to send his energy into new channels, and prove that, as one of his friends said of him, "the oldest of us are the youngest." He diligently attended the House, where he was an unsparing censor of grandmotherly legislation in all forms. Not a dangerous fallacy could show its head without bringing down upon it his mace. His many letters in the Times under the signature "B.," his speeches in the House of Lords, and his pamphlets on "Drink" and Laissez Faire give no adequate idea of the variety of his labors in the last ten years of his life. He was the father confessor, the spiritual adviser, and preceptor of many who looked up to him and sought his counsel and candid counsel it was, for he did not believe in sparing, between friends, the epistolary rod. People of the most diverse character and opinions laid before him their secret thoughts about men and things in let ters which may one day be published. Very widespread was the desire to stand well with him, and curious is the evident anxiety of some of his correspond ents that he will not judge them by their public utterances. Statesmen in private re-argued points upon which they had disagreed with him in public, and brother judges laid before him their troubles. I am not inditing a panegyric, and I do not pretend that all Lord Bramwell wrote was faultless or even of lasting value. The ethical and economical problems which he solved in his trenchant way were probably not so simple as he conceived. Not even the most vigorous intelligence can in such inquiries rely solely on itself. Bramwell was too ready to take as final the first impressions of his own good sense. He was impulsive, and, like most men with firm, set convictions, he did not stop in a letter or a pamphlet to add all necessary qualifications. But not a line from him is pointless or evasive; there is not a trace of conventional and unveracious language. He was ever a fighter, a born pamphleteer, with the virtues as well as the faults of the race. To the Morning Chronicle in 1841 he contributed a letter on Sir Fitzroy Kelly's bill for amending the law as to homicide. The proposal Mr. Bramwell thought too lenient and illogical. The letter is closely reasoned, and to the copy before me the author has added this manuscript note: "This was written by me with the exception of two parts between brackets, the first of which was wrong, the other a blunder." Of his own writings he had but a moderate opinion. To the present writer he remarked, "I only say what I find other people were about to say." He was one of the great masters of the Common Law in days when a strong judge might do much to mould its shape. In 1852 the "Statute Book" looked much larger than it really was. Many of the statutes were repealed, in whole or in part, or were obsolete; others dealt with ecclesiastical, fiscal or technical matters; large regions of national life were untouched by legislation; there was plenty of scope for judge-made law, and, with all respect to Bentham, it was not the worst part of our law. Lord Bramwell did not neglect his opportunity, and he helped lar leniency. No defendant could be to shape in no small degree legal doc- negligent, jurymen must sometimes trines as to negligence, fraud, the law have thought after listening to his sumof agencies, rescission of contracts, and ming-up. There is the story of what is the measure of damages. It was char- known as "Bramwell's Dilemma," conacteristic of him that he did not bow ceived in the spirit of the logical puzzles down before precedents, even if appar- of Zeno the Eleatic: An old woman, ently of the highest authority, when while alighting at a roadside station in they seemed to him irrational. Speak- the dark, fell into a hole and was hurt. ing of a case decided by the House of "Either," said Bramwell to the jury, Lords, he remarked in his evidence be- "she saw or she did not; if she did see, fore the Common Law (Judicial Busi- she herself was negligent in falling into ness) Commission in 1857: "No court of the hole; if she did not see, she was course could overrule it, but it has given negligent in getting out." In some rerise to as much litigation as could marks on claims for compensation put possibly take place, and the result is forward by sufferers from accidents in that that case has not been overruled, perilous employments, he pressed home but distinguished from it to such an ex- the same argument:tent that if any party now cited it he would be laughed at." Had he had a free hand-had he been in the House of Lords in his prime-he would have left a more durable impression on English law. But he did much to make it speak the language of good sense and true equity. On some subjects he was undoubtedly-I had almost said avowedly-prejudiced. So often had he seen the cynical levity with which juries disregarded their plain duties when wealthy corporations were the de fendants, that he was led to espouse their cause with more warmth than was seemly. He did his utmost, though in vain, to arrest the development of one branch of the Common Law-the full extension of its remedies to corporations. On questions of negligence he was opposed, almost to a fault, to popu 1 As it is common to speak of Lord Bramwell's prejudice in favor of corporations, it is only fair to mention one striking instance in which he was against them. In certain early cases (e.g., R. v. Pease, 4 B. & Ad. 30, and Vaughan v. Taff Vale Railway Co., 5 H. & N. 679) it was decided that a railway company with statutory powers to use a certain form of locomotive was not, in the absence of negligence, liable for the consequences of using such a locomotive; e.g., burning a farmer's stackyard by sparks escaping from the engine. In The Hammersmith Railway Co. v. Brand (L. R. 4 H. L. 171), Baron Bramwell advised the House of Lords that these cases were wrongly decided, and that in his view the legislature had not given companies, by implication, power to destroy private property. The majority of the law lords took a different view. These cases are in this dilemma: either there is danger or there is not. In the latter case the fault must be with the sufferers. In the former case there is another dilemma: either the danger is obvious or it is not. In the latter case the he is a volunteer, and has no right to comsufferer may well complain; in the former plain. (See "Smith on Negligence," Appendix B, 2nd edit., p. 279.) In regard to not a few questions, Lord Bramwell was, like many other English judges, disposed to make too much of supposed implied contracts. The political theorists of a former generation solved all difficulties by refer ring to a supposed original convention. In the pacte social or contrat social was the origin of all duties; consult the clauses of this contract, and the duties of society to its members, and of them to society and each other, would be found. It would be easy to show that lawyers, and especially English judges, have freely resorted to fiction akin to that of Rousseau. In assumed implied, that is, unreal, contracts have been sought the origin and extent of private duties. Whether A owes reparation to B has been determined by reference to the terms of a contract which never existed. "A bargain is a bargain" seemed to many judges the last word of jurisprudence; and often they created that bargain when they could not find it. In Lord Bramwell's |