Front Page Titles (by Subject) 20.: VAN VECHTEN VEEDER, A CENTURY OF ENGLISH JUDICATURE, 1800-1900 1 - Select Essays in Anglo-American Legal History, vol. 1
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20.: VAN VECHTEN VEEDER, A CENTURY OF ENGLISH JUDICATURE, 1800-1900 1 - Committee of the Association of American Law Schools, Select Essays in Anglo-American Legal History, vol. 1 
Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1907). Vol. 1.
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A CENTURY OF ENGLISH JUDICATURE, 1800-19001
From the Beginning of the Century to the Common Law Procedure Act of 1852
FAR into the nineteenth century the administration of English law was characterized by methods and aims which belonged to the past. The traditional division between law and equity, in courts having no common historical origin and administering justice on principles essentially unlike, went far beyond the requirements of a rational division of labor. Law and equity applied divers rules to the same subject matters, and afforded different remedies for similar wrongs. In consequence of the refusal of the common law courts to recognize claims and defences which equity allowed, judgments obtained at common law were often nullified by injunctions obtained in equity. Theoretically the two jurisdictions were well defined, but in practice there was often uncertainty as to the proper forum. Suits in chancery were constantly dismissed because it appeared at the hearing that there was a remedy at law, while plaintiffs were non-suited at law because they should have sued in equity. Even when he found himself in the right forum, the perplexed litigant was driven backward and forward from law to equity in order to obtain complete redress. Whenever it was sought to prevent a threatened injury, to preserve the subject matter of litigation intact, or to discover documents, the common law was compelled to resort to equity to support even a legal claim. In consequence of its recognized incapacity for the determination of questions of fact, the court of chancery, in turn, constantly availed itself for such purposes of the assistance of the common law courts.
The three ancient superior courts of common law flourished side by side, although by various devices they had gradually acquired concurrent jurisdiction over personal actions. The Court of King’s Bench still maintained jurisdiction of civil and criminal cases alike, and had supreme authority over all inferior tribunals with its weapons of mandamus and prohibition. The Court of Common Pleas retained jurisdiction over the remaining forms of real action, and the Court of Exchequer still retained in revenue, equity and a few other matters a separate jurisdiction. Notwithstanding the pressure of a rapidly increasing volume of litigation, these courts, in accordance with an antiquated system, sat during only four short terms of three weeks each. Their procedure was based upon the system of special pleading, which, however admirable as a species of dialectic, inevitably promoted excessive technicality and absorption in mere forms. A system which based its claims to consideration upon its precision, it was nevertheless honeycombed with fictions. Just claims were liable to be defeated by trivial errors in pleading, by infinitesimal variances between pleading and proof, and by the absence or presence of merely nominal parties. The arbitrary classification of actions was another pitfall into which the most wary sometimes fell. If a surprise occurred at nisi prius, the court was unable to adjourn the proceedings a single day. And, as a crowning paradox, a fundamental rule of evidence excluded absolutely the testimony of all witnesses who had the remotest interest in the result. “The rules of evidence were so carefully framed to exclude falsehood that very often truth itself was unable to force its way through the barriers thus created.”
The lofty standard of right which chancery held out to suitors was apt to be an ignis fatuus luring them on to further expense and delay. In consequence of its application of a uniform procedure to contentious and administrative business alike, persons between whom there was really no dispute were compelled to engage in useless contests. Equity pleadings, like those at common law, were marvelous specimens of tautology and technicality. Evidence was gathered by means of written interrogatories, and throughout the whole contest the litigants groped after one another in the dark. No litigant entering into a chancery suit with a determined adversary could have any reasonable hope of living to witness its termination. Everybody even remotely interested was a necessary party, and whenever one of these parties died pending suit, bills of review or supplement bills were necessary to restore the symmetry of the litigation.1
During the first quarter of the century Lord Eldon (1801-6; 1807-27) reigned supreme in chancery. Time has been so busy with Eldon’s shortcomings that there is danger of losing sight of his eminent abilities. He possessed in a degree seldom surpassed some of the highest qualities of judicial excellence: quick apprehension, retentive memory, vast technical learning, a judgment which neither perplexity nor sophistry could confound, and an industry never enervated by luxury nor disturbed by passion. His understanding was capable of feats of metaphysical acumen and subtlety that would have enlisted the admiration of the schoolmen by whom equity was originally administered; but this was not in his case an advantage. Beyond his profession he was ill read, untraveled and without knowledge of the world. Aside from the performance of the political duties attached to his high office, he devoted himself to the law with entire singleness of purpose and indefatigable industry.
The vast arrears in chancery which accumulated during his administration is the most serious blot on his reputation. It would be an injustice to the memory of a really noble character to fix upon him the sole responsibility for that monstrous denial of justice. The chancery system had never been distinguished by despatch, and the rapid and sustained increase in litigation during Eldon’s time accentuated the delay which has come to be associated with his name. The arrears in chancery were due, in part, to the state of the law, to the insufficiency of the time applied to judicial business, and to the want of an adequate number of courts. Lord Eldon was a powerful political officer as well as a judge, and during his time the quasi-political duties of his office were particularly onerous. The investigation of the Berkeley and Roxburghe peerage claims and the trial of Queen Caroline are illustrations of the extra-judicial demands made upon his time. Slight relief was eventually afforded by the appointment of a deputy speaker of the House; but the ultimate establishment of a vice-chancellor’s court was not an immediate success, and it was many years before the master of the rolls was enabled to render any effective assistance. Considering the vast political power that Lord Eldon exercised in the cabinet councils, it is, however, a deep and permanent reproach upon his reputation that he did practically nothing to remedy the chancery system. And it must be admitted that Lord Eldon’s judicial methods were dilatory in the extreme. No one was ever better qualified by nature and by training to arrive at a speedy decision. Indeed, during his short term in the Court of Common Pleas he showed a capacity for prompt decision which contrasts curiously with his marked indecision in chancery. His delay was really due, not so much to want of readiness in reaching a decision, as to dilatoriness in formulating his opinion. The fact that this delay was due in large measure to his extreme conscientiousness does not affect the result, although it does to some extent relieve his memory. It may be well to quote his own justification as given in his diary:
“During my chancellorship I was much, very much, blamed for not giving judgment at the close of the arguments. I persevered in this, as some thought from obstinacy, but in truth from principle, from adherence to a rule of conduct, formed after much consideration, as to what course of proceeding was most consonant with my duty. With Lord Bacon, ‘I confess I have somewhat of the cunctative mind,’ and with him I thought that ‘whosoever is not wiser upon advice than upon the sudden, the same man is no wiser at fifty than he was at thirty.’ I confess that no man had more occasion than I had to use the expression which was Lord Bacon’s father’s ordinary word, ‘You must give me time.’ I always thought it better to allow myself to doubt before I decided, than to expose myself to the misery of doubting whether I had decided rightly and justly. It is true that too much delay before decision is a great evil. But in many instances delay leads eventually to prevent delay: that is, the delay which enables just decision to be made accelerates the enjoyment of the fruits of the suit; and I have some reason to hope that in a great many cases final decision would have been much longer postponed if doubts as to the soundness of original judgments had led to rehearings and appeals, than it was postponed when much and anxious and long consideration was taken to form an impregnable original decree. The business of the court was also so much increased in some periods of my chancellorship that I never could be confident that counsel had fully informed me of the facts or of the law of many of the cases. There may be found not a few instances in which most satisfactory judgments were pronounced which were founded upon facts or instruments with which none of the counsel who argued the cases were acquainted, though such facts and instruments formed part of the evidence in the case.”
Accordingly, he was given to reviewing a case in all conceivable aspects long after he had in fact exhausted the actual issue; and the reports are full of instances where in matters of difficulty he laboriously examined the whole volume of cases connected with the topic under consideration.1 Hence his decrees and opinions are so overlaid with fine distinctions and limitations that the ratio decidendi is not always easy to find. At no stage of his career did he ever display any evidence of the perspicuities, much less the graces, of literary style. So inextricably parenthetical and over abundant in qualifications is all his work that one can appreciate the feelings of Horne-Tooke when he declared that he would “rather plead guilty on a second trial than listen to a repetition of John Scott’s argument” for the prosecution. This is certainly a serious defect in any judge; and if the guiding principles of Eldon’s judgments had been as clearly enunciated and in as general terms as those of Hardwicke, the volume of his decisions, the care with which he considered them, the weight of his authority and the force of his example, would have gone far to remove the blight of uncertainty which rested upon the law in his day.
But with all their involution in mere phraseology Lord Eldon’s decisions, which extend through thirty-two volumes of reports, are, in substance, monuments of learning, acumen and practical application of equity. His judgments were seldom appealed from and hardly ever reversed; and, except where the law has since been altered by statute, time has not materially impaired their authority. Out of the vast body of his work, covering the whole equitable jurisdiction, it will suffice to call particular attention to the refinement and precision which he gave to the administration of estates in chancery and in bankruptcy, to the equities of mortgagors and mortgagees, to the remedy of specific performance, and the exemplary liberality with which he construed charitable bequests. Like many of his contemporaries, Eldon had very crude ideas of trade; the extent to which he pushed the ancient doctrines of forestalling and regrating seems, in this day, ridiculous. Nevertheless, his historical position must always remain conspicuous, for he definitely brought to a conclusion the work of binding down the chancellor’s discretion. “The doctrines of this court,” he said in Gee v. Pritchard, 2 Swanst. 414, “ought to be as well settled and made as uniform almost as those of the common law, laying down fixed principles, but taking care that they are to be applied according to the circumstances of each case. I cannot agree that the doctrines of this court are to be changed with every succeeding judge. Nothing would inflict or give me greater pain in quitting this place than the recollection that I had done anything to justify the reproach that the equity of this court varies like the chancellor’s foot.” From his time onward the development of equity has been effected mainly by strict deduction from the principles of decided cases, and the work of succeeding chancellors has been practically confined to the elaboration of these principles by repeated review and definition.1
The first competent successor to Eldon was Cottenham. Lyndhurst (1827-30; 1834-35; 1841-46) was a consummate orator, but he had no training in equity and shone principally in politics. Brougham’s chancellorship (1830-34) was only an incident in his varied career. As a statesman he has left an abiding mark on the English legal system. For nearly fifty years he struggled with indefatigable industry and extraordinary ability in the cause of reform. The vast scheme of law reform which he laid before parliament in 1828 bore ample fruit in after times. The overthrow of the cumbrous and antiquated machinery of fines and recoveries, the abolition of the Court of Delegates and the substitution for it of the Judicial Committee of the Privy Council, the institution of the Central Criminal Court and the Bankruptcy Act, are a few of his herculean labors. Although he always upheld the cause of liberty and humanity, his character carried little moral force. As chancellor he worked with extraordinary energy, and expedited the work of the court in marked contrast with Eldon. But he had been trained in the common law, and was little fitted either by learning or by temperament for the judicial duties of the office. “If he had known a little law,” said the caustic St. Leonards, “he would have known a little of everything.1 Waring v. Waring, 6 Moo. P. C. 341, is a characteristic specimen of his judicial style.
Cottenham (1836-41; 1846-50) brought to the discharge of his duties a complete mastery of the existing principles and practice of the court of chancery, which he regarded as the perfection of human wisdom. Outside this sphere his learning was limited; and his mind was vigorous and sound rather than broad and subtle. He was an able and painstaking, if somewhat cautious, judge.2 His successor, Truro (1850-52), a learned but plodding lawyer, left the Court of Common Pleas, where he was serving with credit, to assume the chancellorship, for which he had no particular qualifications. He sacrificed his life in attempting to cope with the work. Lord St. Leonards (1852), who next held the seals for a brief period, within his limits realized as nearly as possible the ideal of an infallible oracle of the law. In complete contrast to Brougham, who knew a little of everything, St. Leonards knew a great deal of one thing and little besides. In comprehensive and accurate knowledge of the law of real property he stood for forty years without a rival. His judgments were always delivered promptly, without notes, and were seldom reversed. Yet it must be admitted that, from the technical character of the subject and his apparent lack of general culture, they are dry reading.1 St. Leonards was more competent than any of his contemporaries to reform the law of real property, but he seems to have been quite contented with it as it was. He literally lived in the law during his lifetime and bequeathed to it a leading case upon his death. His will could not be found, and its contents were established by oral evidence. Cranworth (1852-58), whose professional training had been in chancery, came to the woolsack after his long experience as a baron of the Exchequer. He thus combined a large acquaintance with both systems. He was a man of high character and a sound and acute judge. His extreme caution and timidity, however, limited the influence which his learning and experience would otherwise have exerted.2 Cranworth was followed by two common law chancellors, Chelmsford and Campbell. Chelmsford (1858-59; 1866-68) had shared with Sir William Follett the honors of the bar, and it has been customary to decry his judicial service, on the general theory, apparently, that an eloquent lawyer is not apt to be a profound judge. Undoubtedly he would have taken a higher position on the common law bench; but a fair examination of his work shows that he was a very respectable judge. Certainly he discharged his duties with assiduity, and his numerous judgments are often instructive in consequence of his habit of reviewing prior authorities.3 Lord Campbell’s brief chancellorship (1859-61) is really a minor feature of his career, owing to the advanced age at which he reached the woolsack. With his strong intellect and untiring industry he made a respectable equity judge, but his overbearing nature caused much friction where steady co-operation was needed.
The inferior chancery tribunals were the Rolls Court and the Vice-Chancellor’s Court. The judicial standing of the Rolls Court was established by Sir William Grant (1801-18). Kenyon, the most prominent prior incumbent of the office, discharged the duties of the office with his customary ability and expedition, but he was not really in sympathy with the equitable jurisdiction and habitually decided his cases on the narrowest grounds, avoiding the enunciation of general principles. Grant dignified the office with his high character and eminent abilities. He was unquestionably the most eminent judge sitting in this court until the time of Jessel. Calm, deliberate, patient in hearing, and clear, luminous, subtle and comprehensive in judgment, his powerful intellect made a deep impression upon his contemporaries. This reputation was enhanced by his parliamentary service, which was even more distinguished than his service as a judge. His opinions, which are comparatively few in number, are mostly brief but comprehensive statements of his conclusions, giving slight indications of that masculine reasoning which was the principal feature of his parliamentary oratory. The office was at this time a modest one. The master of the rolls simply supplied the place of the chancellor when the latter’s political duties required his presence elsewhere. On other occasions, when requested by the chancellor, the master of the rolls sat with the chancellor to give advice and assistance in cases argued before both. In order that he might assist the chancellor when present and supply his place during occasional absence, it was arranged that during the sitting of the chancellor the separate business of the master of the rolls should be transacted in the evening. Accordingly, during the greater part of the judicial year, the sittings of the master of the rolls in his own court were held in the evening.
The office at its best under Grant was not to be compared with its position in later times when the master ceased to sit as adviser to the chancellor, and was invested with a separate and, in some respects, independent judicial authority in his own court. This system continued with but little change during the short terms of Grant’s immediate successors, Plumer (1818-24), Gifford (1824-26), Copley (1826-27) and Leach (1827-34). The office probably reached its lowest point under Leach, who was fitted neither by learning nor by temperament for judicial office. Much was expected from the appointment of Pepys (1834-36); but he was soon advanced to the woolsack as Lord Cottenham. Improvement is noticeable soon after the advent of Lord Langdale (1836). From his time the decisions of the Rolls Court have been regularly reported in a separate series of reports, first by Keen (1836-38) and afterwards by Beavan (1838-66). Lord Langdale administered the duties of the office, at a time when its scope had been considerably enlarged, with industry and ability, as the few successful appeals from his judgments attest. If his reputation as a judge fell somewhat below the expectations raised by his distinguished professional career, his lucid and methodical exposition of the facts with which he had to deal gave perfect satisfaction to those who were most interested in a just decision. His lofty character and absolute impartiality inspired the utmost confidence.
The unbearable arrears in chancery during Lord Eldon’s administration finally led to the appointment of a vice-chancellor in 1813. But as constituted, the new court failed for many years to give satisfaction. The first incumbent, Plumer (1813) was slower than Eldon himself; while his successor, Leach (1818-27), disposed of his cases with such speed that a witty barrister comparing Leach’s court with that of the chancellor, characterized the former as terminer sans oyer and the latter as oyer sans terminer, and suggested that Leach employ his spare time in setting his decided cases back on the calendar and hearing the other side. Shadwell (1827-50) was an improvement upon his immediate predecessors; but the most efficient assistance in chancery came with the appointment of Knight-Bruce (1841-51) and Wigram (1841-51) as additional vice-chancellors. At the same time the equitable jurisdiction of the Court of Exchequer was taken away. Knight-Bruce was a judge of great capacity who afterwards distinguished himself as a lord justice of appeal in chancery. Wigram was profoundly learned in technical equity, and his opinions have always been held in high esteem for their lucid exposition of equitable principles.
Common Law Courts
During the first quarter of the century the Court of King’s Bench practically monopolized common law litigation. Lord Ellenborough, the chief justice of this court at the beginning of the century (1802-18), was unquestionably the ablest judge among Lord Mansfield’s immediate successors. He was a man of more general force than his predecessor, Kenyon, and his store of practical knowledge was quite as large. Although a judge of unquestioned integrity, he was nevertheless in many ways a reactionist. His strong political and religious opinions, which often influenced his judgment in criminal causes, savored of the past, and he sturdily opposed the rapidly rising sentiment for reform. In ordinary civil litigation, however, he gave great satisfaction, and his clear and concise opinions are still held in high esteem. He served at a time when the Napoleonic wars gave rise to novel and intricate problems in commercial law, and the skill and judgment with which he determined these questions may be studied to advantage in Campbell’s nisi prius reports.1
It is noticeable that the popularity of the King’s Bench during this period was due almost entirely to the energy and ability of its chief justice. His sole associate of first-rate ability was Bayley (1808-30), whose opinion in commercial cases carried great weight. During the tenure of Lord Ellenborough’s successor, Charles Abbott, afterwards Lord Tenterden (1818-32), this condition of affairs was reversed; the reputation of the court was then due in large measure to the puisnes. Tenterden was inferior to his predecessor in force of intellect, and was surpassed by some of his associates in acuteness and learning. But he was a judge of liberal tendencies, moderation and good sense. These qualities are most conspicuous in his clear and practical opinions, which, particularly in commercial cases, still command respect. During this period the court was highly efficient. “I do not believe,” says Lord Campbell, “that so much important business was ever done so rapidly and so well before in any other court that ever sat in any age or country.” The labors of three distinguished puisnes, Bayley, Holroyd (1816-28), and Littledale (1824-41), contributed materially to this high standing. These three judges represent the best fruits of the system of special pleading, and their labors, so far as they are capable of separation from an antiquated procedure, have stood the test of time.
The wave of reform precipitated by the Reform Bill stirred even the stagnant waters of the law. The Court of Exchequer Chamber was made a regular and permanent intermediate court of appeal from each of the superior courts of common law. The ancient and anomalous High Court of Delegates, which had been established in the reign of Henry VIII to take up the appellate jurisdiction in ecclesiastical matters theretofore exercised by the pope, was at length abolished, and its appellate jurisdiction was conferred upon the Judicial Committee of the Privy Council, which was now made a definite and serviceable tribunal with a well-defined jurisdiction. By the Uniformity of Procedure Act the concurrent jurisdiction of the three superior courts of common law was officially recognized, and a central criminal court was established. The antiquated and cumbrous machinery of fines and recoveries was finally abolished, and a general bankruptcy act ameliorated the condition of insolvent debtors. But the movement in favor of legal reform was not widespread, and comparatively little was accomplished. In fact, the quarter century following the Reform Bill is significant only because it marks the limits of the influence of Baron Parke in the common law courts.
The Queen’s Bench at the beginning of this period was still the ablest as well as the most prominent of the three courts of common law. Of the two chief justices during this time, Lord Denman (1832-50), the first, was a great and good man, whose predisposition to individual liberties was a new departure in a chief of this court. His judgment in Stockdale v. Hansard is a monument of learning and independence.1 Compared with his immediate predecessors he could not be called a great lawyer or a strong judge, but his high character and attractive personality won universal esteem. “To have seen him on the bench, in the administration of justice,” said Charles Sumner, “was to have a new idea of the elevation of the judicial character.” Campbell (1850-59), his successor, whose character is much less to be admired, surpassed him in learning and efficiency. With a strong intellect, wide knowledge and untiring industry, Campbell made during his short term a lasting reputation.2
Of the prominent puisnes during this period, Littledale (1824-41), a learned but scholastic lawyer, held over from earlier time, and Parke (1828-34) spent a few years in this court before going to the scene of his more distinguished labors in the Exchequer. During the latter part of the period the court was further strengthened by the accession of Wightman (1841-63) and Erle (1846-59). Wightman was one of the last of the great school of special pleaders; but he was besides a man of broad and practical views, and made an admirable judge. He sat in the Queen’s Bench twenty-three years, the trusted colleague of three chief justices.1 According to the unanimous voice of his contemporaries, Erle was one of the best of the earlier judges. He had that power of quickly grasping the essential features of a case which marks the legal mind; and, although his mind lacked flexibility and subtlety, and he was extremely tenacious of his own views, the common sense which generally characterized his work made him a safe judge.2 But the ablest associate throughout the period was Patteson (1830-52). He sat in this court twenty-one years; he was the strongest man in the court, and largely influenced its action. It was due mainly to his vigorous intellect and great learning that the court was able to maintain its standing during this period, in the face of the rapidly increasing reputation of the Exchequer.3 Coleridge (1835-58) was a very competent lawyer and a man of scholarly attainments. His opinions are among the most finished to be found in the earlier reports.4 His opinion in the case of Lumley v. Gye, upon the malicious procurement of a breach of contract, is a good specimen of his style.
The work of the Court of Common Pleas was limited in amount during this period. Until 1841 it was a closed court, and only sergeants could argue cases there. It enjoyed the services, however, of some very able lawyers. Of its three chiefs, Tindal (1829-46), Wilde (1846-50) and Jervis (1850-56), Tindal and Jervis take high rank as magistrates. Clear sighted, sagacious and quick of apprehension, they were masters at nisi prius. Tindal was furthermore a profound lawyer, and his numerous opinions in this court and in the Exchequer Chamber display grasp of principle, accuracy of statement, skill in analysis and wide acquaintance with precedents.1 Wilde was a learned but plodding lawyer whose subsequent elevation to the woolsack only served to detract by comparison from his superior reputation as a common law judge.
Of the puisnes, Maule (1839-55), who served through most of this period, was probably the most highly endowed. No one ever had a finer sense of the anomalies and incongruities of English law, and he never missed an opportunity to bring to bear on them his unrivalled powers of sarcasm and caustic humor. “As the rule is well established by decisions,” he ironically remarks in Emmens v. Elderton, 4 H. L. Cas. 624, “it is not necessary to give any reasons in its support, or to say anything to show it to be a good and useful one.” His subtle mind was balanced by good sense and entire freedom from technicality.2 But his mental gifts were smothered in indolence, and he is chiefly remembered for his cynical humor. It was he who, while reading a novel in bed by candle light, set fire to his chambers and burned down a large section of the Temple. Cresswell (1842-58) and E. V. Williams (1846-65) were the strong judges in this court during the latter part of the period. Cresswell was an accomplished lawyer who afterwards added to his reputation in the probate and matrimonial court. He was essentially a broad-minded judge. Williams, the second generation in a line of great lawyers of that name, was profoundly learned in the common law, and his concise and accurate if somewhat technical opinions have always been respected. He was somewhat labored in expression, but he had great influence with his associates during his twenty-two years’ service.1
The Court of Exchequer came into great prominence during this period. The first two chief barons, Lyndhurst (1831-34) and Abinger (1834-44), failed to sustain on the bench the great reputations they had made at the bar. Both were men of great gifts, but their success as advocates was due rather to their knowledge of men than to any mastery of legal principles. Pollock (1844-56), on the other hand, who succeeded them, brought to the bench the industry and general ability which had characterized his distinguished forensic career. There have been many more learned but few more useful judges. His high-toned personality is reflected in his scholarly and felicitous opinions, which, whether right or wrong in the result, are always interesting.2 Under his administration, with Parke (1834-55) and Alderson (1834-57) as associates, the Exchequer reached its greatest influence.
It is undeniable that this reputation was largely made by Parke (1834-55). “Baron Surrebutter,” as he was ironically named, was a modern Coke, profoundly learned in the common law and indefatigably industrious in its administration. He possessed the ability in grasping and fathoming a subject which is the supreme test of judicial power, and his extraordinary memory enabled him to draw at will upon his vast store of learning. It must be admitted that he was a man of high character and powerful intellect; no smaller man could have accomplished so much. For more than twenty years he was the ruling power in Westminster Hall. Considering the state of the law in his day and his fond adherence to its formalities and precedents, one’s admiration for his undoubted ability gives way to surprise that he should have required such ascendency over his brethren. Even so great a lawyer as Willes said that “to him the law was under greater obligations than to any judge within legal memory.” For more than twenty years he bent all the powers of his great intellect to foster the narrow technicalities and heighten the absurdities of the system of special pleading. The right was nothing, the mode of stating it everything. Conceive of a judge rejoicing at non-suiting a plaintiff in an undefended case, and reflecting only that those who drew loose declarations brought scandal on the law! Any attempt to change or ameliorate the law met with his uncompromising opposition. “Think of the state of the record,” was his invariable response to every effort to escape from the trammels of technicality. He defeated the act of parliament allowing equitable defences in common law actions by the exaction of all but impossible conditions, and expressed satisfaction in being able to do so. Broad-minded judges like Maule and Cresswell struggled in vain against his influence. “Well,” Maule would say, “that seems a horror in morals and a monster in reasoning. Now give us the judgment of Baron Parke which lays it down as law.” Parke stands at the head of the black-letter lawyers. It is related that once when one of his brethren was ill, Parke sent him a special demurrer. “It was so exquisitely drawn,” he said, “that he felt sure it must cheer him to read it.” “He loved the law,” as Bramwell said, “and like those who do so he looked with some distrust on proposals to change it.” He sincerely believed that the interests of justice were best served by a strict adherence to technical rules. The sixteen volumes of reports by Meeson and Welsby were his especial pride. “It is a lucky thing that there was not a seventeenth volume,” said Erle, “for if there had been the common law itself would have disappeared altogether amidst the jeers of mankind.”1 In these pages, indeed, he may be seen at his best and his worst. He was one of the last of the judges who systematically delivered written opinions. They were prepared with great fulness and care, and do not fall far short of two thousand in number. Alderson (1834-57) was a strong associate, learned, vigorous and efficient, and particularly capable as a criminal judge.2 Valuable assistance, particularly in its equitable jurisdiction, was rendered in this court by Rolfe (1839-50), who subsequently reached a higher station as Lord Cranworth.
Ecclesiastical and Admiralty Courts
Probate, matrimonial and admiralty affairs were administered for centuries by the civilians; but they left few records of their labors. As a system of judicial precedents this jurisdiction is the creation of the nineteenth century. While the main stream of legal business flowed through the Inns of Court and Westminster Hall, a close body of advocates and proctors, in the quiet backwaters of Doctors’ Commons, under the shadow of St. Paul’s, placidly pursued their vocation. In their cloister-like seclusion the learned doctors caused scarcely a ripple on the surface of legal affairs; no report was issued of their proceedings, and to the world at large they were unknown. From this obscurity the ecclesiastical and admiralty jurisdiction was rescued by the genius of Lord Stowell.
The brothers William and John Scott, who were destined in after life, as Lords Stowell and Eldon, to make such lasting impression on their chosen branches of English jurisprudence, were strikingly dissimilar in mental temperament. The strength of intellect which in the case of Eldon was applied with indefatigable industry to the confinement within rigid limits of the doctrines of a remedial system, was employed by Stowell in laying the foundation of the law of the sea in accordance with the principles of universal justice. Lord Stowell was a man of the most scholarly attainments—the friend of Johnson, Burke and Reynolds, and a keen participant in the intellectual movements of his time. The cosmopolitan sources of the civil law, which he originally studied as part of a liberal education—its philosophical, literary and historical associations—led him to adopt it as a vocation. The choice was most happy. He had the good fortune to live in an age peculiarly calculated to exercise and exhibit his great faculties. The greatest maritime questions that have ever presented themselves for adjudication arose in his time out of those vast European wars in which England obtained the sovereignty of the seas. Most of these questions were of first impression, and could be determined only by a cautious process of deduction from fundamental principles. The genius of Stowell, at once profound and acute, vigorous and expansive, penetrated, mastered and marshalled all the difficulties of these complex inquiries, and framed that comprehensive chart of maritime law which has become the rule of his successors.
His first judicial service was as judge of the Consistory Court of London, where for ten years he delivered discourses on the regulation of the domestic forum which are exemplary alike in morals and in taste. In this jurisdiction, involving the most sacred rights of individuals and the best interests of society, his benevolent wisdom is indelibly recorded. Such cases as Dalyrymple v. Dalyrymple, on the nature, origin and sanctity of marriage; Evans v. Evans, the first great case on cruelty; Loveden v. Loveden; Sullivan v. Sullivan, and many others to be found in the contemporary reports of Haggard and Phillimore, are rare specimens of legal philosophy and practical ethics. In the case of Evans v. Evans, for instance, he benevolently points out to the parties the limits of his powers:
“The humanity of the court has been loudly and repeatedly invoked. Humanity is the second virtue of courts, but undoubtedly the first is justice. If it were a question of humanity simply, and of humanity which confined its means merely to the happiness of the present parties, it would be a question easily decided upon first impressions. Everybody must feel a wish to separate those who wish to live separate from each other, who cannot live together with any degree of harmony and, consequently, with any degree of happiness; but my situation does not allow me to indulge in the feelings, much less the first feelings, of an individual. The law has said that married persons shall not be legally separated upon the mere disinclination of one or both to cohabit together. The disinclination must be founded upon reasons which the law approves, and it is my duty to see whether these reasons exist in the present case. To vindicate the policy of the law is no necessary part of the office of a judge; but if it were, it would not be difficult to show that the law in this respect has acted with its usual wisdom and humanity, with that true wisdom and that real humanity that regards the general interests of mankind. For though in particular cases the repugnance of the law to dissolve the obligations of matrimonial cohabitation may operate with great severity upon individuals, yet it must be carefully remembered that the general happiness of the married life is secured by its indissolubility. When people understand that they must live together, except for a very few reasons known to the law, they learn to soften by mutual accommodation that yoke which they know they cannot shake off; they become good husbands and good wives from the necessity of remaining husbands and wives, for necessity is a powerful master in teaching the duties which it imposes. If it were once understood that upon mutual disgust married persons might be legally separated, many couples, who now pass through the world with mutual comfort, with attention to their offspring and to the moral order of civil society, might have been at this moment living in a state of mutual unkindness, in a state of estrangement from their common offspring, and in a state of the most licentious and unreserved immorality. In this case, as in many others, the happiness of some individuals must be sacrificed to the greater and more general good.”
But the highest sphere in which he exercised his faculties was the Court of Admiralty, where for a period of thirty years he was rather a law-giver than a judge. Except a few manuscript notes, and occasional references to tradition and personal memory, there were no precedents for his guidance in adjudicating upon the novel cases arising out of the most important war in English history. He was free to be guided by the writers on Roman, canon and international law, and by the historical material with which his wide reading had made him familiar. At the same time the unequalled variety of cases which came before him enabled him to give unity and consistency to a whole department of law. The legal interruption to navigation which both belligerent parties may create against neutrals, the rights of joint captors, cases of unlawful detention and seizure, the force and construction of different treaties, the existence of an actual blockade, the condemnation of merchant ships for resisting search, questions of domicile, the extent of the protection of cartel, the extent of territorial claims, the validity of orders in council—these are among the subjects adjudicated by him with such unerring accuracy that, though often appealed from, it is said that not one of his judgments was reversed. Upon many maritime points his judgments are still the only law; and little popular as they were at the moment among Americans, who often suffered by them, they have since been accepted by our courts as authoritative. Fortified by a store of knowledge at once profound and extensive, combining all the materials that indefatigable research, close and minute observation and intense study could provide, the judgments of Lord Stowell in international law have passed into precedents equal, if not superior, to those of the venerable authors of the science, Puffendorf, Grotius and Vattel. His work, like theirs, was animated by the spirit of universal justice. “I trust,” he said in the celebrated case of the Swedish Convoy, 1 C. Rob. 349, “that it has not escaped my anxious recollection for one moment what it is that the duty of my station calls for from me; namely, to consider myself stationed here, not to deliver occasional and shifting opinions to serve present purposes of particular national interest, but to administer with indifference that justice which the law of nature holds out, without distinction, to independent states, some happening to be neutral, and some to be belligerent. The seat of judicial authority is, indeed, locally here in the belligerent country, according to the known law and practice of nations; but the law itself has no locality. It is the duty of the person who sits here to determine this question exactly as he would determine the same question if sitting in Stockholm; to assert no pretensions on the part of Great Britain which he would not allow to Sweden in the same circumstances, and to impose no duties on Sweden, as a neutral country, which he would not admit to belong to Great Britain in the same character. If therefore, I mistake the law in this matter, I mistake that which I consider, and which I mean should be considered, as the universal law upon the question.”
“If ever the praise of being luminous could be bestowed upon human compositions,” says Brougham, “it was upon his judgments.” Aware of the value of his productions he bestowed extreme care in their preparation. In a few instances his language may seem somewhat stilted; the attention to diction may occasionally degenerate into purism; but the symmetry and elegance of the whole confirm Lord Lyndhurst’s opinion that it is as vain to praise as to imitate him. Probably his finest performance, from all points of view, is his luminous exposition in the case of the Gratitudine, 3 C. Rob. 240, of the power of the master of a vessel to hypothecate her cargo. But it is little, if any superior to the following: The Maria, the case of the Swedish Convoy, 1 C. Rob. 340; the case of the Slave Grace, 2 Hagg. Adm. 94; the Jane and Matilda, 1 Hagg. Adm. 187; the Neptune, 1 Hagg. Adm. 227; Le Louis, 2 Dods. Adm. 210.1
Stowell was followed in succession by Sir Christopher Robinson (1828-33), and Sir John Nichol (1833-38), whose short service was respectable, but not particularly distinguished. The next judge of this court maintained the high standard set by Stowell. Lushington (1838-67) was a man of high character, vast learning and sound judgment, who, during a service almost equal to that of Stowell in duration, administered the varied duties of his court with such accuracy and good sense that his judgment was seldom appealed from and rarely reversed. “All who ever heard one of those luminous expositions of law,” says a contemporory, “must remember the effect produced in court when, often without taking time to consider his judgment, Dr. Lushington would deliver one of those masterpieces of judicial wisdom and legal learning which rank him among the first of English jurists.” With maritime law in particular his name is permanently associated. The ancient jurisdiction of the Admiralty was largely restored by various statutes during his tenure, and it was finally made a court in 1861. Then the Crimean war, bringing in its train many questions of the rights of neutrals, blockade and contraband of war, enabled him to build up a high reputation as an authority on international law. The ecclesiastical controversies of his time, arising out of the ritualistic movement in the English Church, were also determined by him with broad-minded liberality.1
Courts of Appeal
The right of appeal is a modern conception. Down to very recent times it was rigidly withheld save in a strictly limited class of cases; and even in those cases in which an appeal was allowed the appellate jurisdiction was administered on principles which were anomalous and irrational in the extreme. In common law cases only matters of error apparent on the record were reviewable, and no appeal lay on a motion for a new trial or to enter a verdict on a non-suit. No error lay upon a special case framed by consent without a trial, but only from a special verdict where the parties had arranged or the judge had directed at the trial a special statement of the facts; in other words, the expense and delay of a useless trial were required as a condition of appeal. And even where appeal was possible the appellant was held to the strictest observance of all the difficult formalities involved in challenging the direction of a judge by means of a bill of exceptions.
The Exchequer Chamber, the intermediate court of appeal in common law, practically dates from 1832. The Court of Appeal in Chancery was not established until 1851. The courts of final appeal, the House of Lords and the Privy Council, are of great antiquity; but prior to the nineteenth century their judicial functions were of secondary importance. The appellate jurisdiction is almost entirely a creation of the nineteenth century. This late development may be explained in part, so far at least as the common law jurisdiction is concerned, by the efficiency of the trial courts. The three great common law courts in banc administered the system then in force as well as any court could administer it. It was not until the breakdown of the common law courts in banc that more liberal rights of appeal became necessary. Moreover, the House could at all times avail itself of the advice of the common law judges. This advice, it is true, they were not bound to follow, but, in fact, it was seldom overridden. In chancery, until the creation of the Court of Appeal in Chancery, the situation was not so satisfactory. The chancellor sat alone on appeal from the vice-chancellor and from the master of the rolls (often his superiors in technical learning); and there was usually small satisfaction in pursuing an appeal to the House of Lords, because, owing to the defective organization of that tribunal, there, too, the chancellor usually dominated. The advice of the chancery judges was not available, because the House had no authority to summon them unless, as rarely happened, they were also peers.
A Court of Exchequer Chamber existed from the earliest times, both as a court of error and a court of debate. As a court for debate it consisted of the assembled judges, presided over by the lord chancellor, where matters of importance and difficulty were discussed before judgment was rendered in the court below (e. g. Calvin’s case).1 By 31 Edw. III., c. 12, it was constituted a court of error from the common law side of the Exchequer, and in it sat the Lord Chancellor, the Lord High Treasurer and the judges of the other courts. In 1585 another court was created to take error from the King’s Bench. It was composed of the judges of the Common Pleas and the Exchequer. Both these courts were finally merged by statute (11 George IV and 1 William IV) into a court of appeal from all three common law courts, appeals from one court being heard by the judges of the other two. This continued to be the intermediate court of appeal in common law until the Judicature Act. As thus constituted it was at times a most powerful court. Its practical operation was, however, somewhat restricted. Occupied with the labors of their own courts, the judges were irregular in attendance. And the general satisfaction given by the common law courts in bane was evidenced by a limited right of appeal.
During the first half of the life of the court its most active members were Tindal and Parke; but valuable assistance was rendered by Denman, Patteson, Coleridge and Alderson. During the second period the active participants were Willes, Erle, Blackburn, Bramwell, Pollock, Wightman, Cockburn, Williams and Martin. During the forty-five years of the court’s existence it heard only about eight hundred appeals, and nearly two-thirds of these were heard during the last half of the period. The Queen’s Bench supplied the largest quota of these appeals, although the Exchequer was not far behind. Appeals from the Common Pleas were comparatively few in number. Of the eight hundred judgments reviewed by the court, a little more than one-fourth were reversed—somewhat less than the usual proportion. There was a remarkable consensus of opinion among the judges in this court, the number of cases in which there was a division of opinion being less than fifty.
The importance of the House of Lords as a court of final review in civil actions is a matter of recent development. After the break up of the Curia Regis and the establishment of the three courts of common law there remained in the sovereign a residuary power covering cases where the courts were not strong enough to do justice, or were deficient in rules applicable to the case or were alleged to committed error. In time the King in Council (at first the Star Chamber, and latterly the Privy Council) became the tribunal for the determination of cases where, from the greatness of the offender, or the magnitude of the issue, the ordinary courts were inadequate to do justice. The King in Chancery (by the Lord Chancellor) acquired exclusive jurisdiction in all cases where the rigor of the common law had to be relaxed by supplemental rules, and the appellate jurisdiction in case of error passed into the hands of the House of Lords. The extent of the jurisdiction of the House was long a matter of controversy. Its common law jurisdiction in error, which was settled in the first year of Henry VII, was decisively vindicated in the case of Ashby v. White, 14. St. Tr. 695. Its appellate jurisdiction in equity was clearly recognized by the statute of 27 Elizabeth, c. 28, and has been unquestioned since the case of Shirley v. Fagg, 6 St. Tr. 1121. In early times the House claimed and occasionally exercised an original jurisdiction between party and party; but this claim was finally abandoned after the conflict over the case of Skinner v. East India Co., 6 St. Tr. 709, in 1688. Jurisdiction over Scotch appeals dates from the Act of Union of 1707. Irish appeals have long been heard in the House. In 1696, and again in 1719, the Irish House of Lords claimed jurisdiction; this claim was allowed in 1783, but in 1800 it was finally taken away by the Act of Union.
Yet, even late in the eighteenth century the House was only beginning to be regarded as a regular court of justice. Its composition remained uncertain until it was finally settled by statute under the Judicature Act. The original conception doubtless implied the judgment of the whole House assisted by the advice of the assembled judges. Of course the lord chancellor presided, and there were generally eminent lawyers among the peers who would presumably lead in the discussion. The reports of the judicial proceedings of the House prior to the nineteenth century are so meagre that it is impossible to ascertain the character of their discussions. The earliest report of their judicial proceedings by Shower (1694-1733)—a brief report of about fifty cases confined mainly to a statement of the issues and the actual judgment of the House—was considered by the House an infringement of its privileges. The same meagreness characterizes other reporters of the eighteenth century: Colles (1697-1713) and Brown (continued by Tomlins, 1702-1800). Hall states that in his day judgment was regularly given by the majority of voices. In 1689 the judgment in the case of Titus Oates was affirmed by a vote of thirty-five to twenty-three, in opposition to the unanimous opinion of the assembled judges. The judgment of the Queen’s Bench in the celebrated case of Ashby v. White, 1 Bro. P. C. 62, in 1703, was reversed in the House by a general vote of fifty to sixteen.1 As late as 1806 lay peers voted in the case of Lord Hertford’s guardianship of Lord Seymour’s daughter. But the theory of final decision by a combination of lay and legal minds gradually broke down. Lay peers were, as a rule, little disposed to attend the hearing of purely private and technical cases; and they soon practically lost their right to sit even in cases of quasi-political and general public interest. The matter came to an issue in O’Connell’s case, 11 Cl. F. 155, in 1844, when the lay peers, in deference to the Duke of Wellington, finally waived their right to vote. The last occasion on which a lay peer voted was the case of Bradlaugh v. Clarke, 8 App. Cas. 354, when Lord Denman, son of Lord Chief Justice Denman, voted. Lord Denman had been educated for the bar, but he did not come within the recognized definition of a “law lord,” i. e., one who had held high judicial office; yet the law officers of the government were of opinion that the vote was lawful.
The other component part of the composition of the ancient tribunal, the assembled judges, has also practically disappeared. The right of the House of Lords to summon the judges at the beginning of each Parliament to be present for the purpose of assisting the House, when required, in the determination of legal questions, is of great antiquity. But, although the judges still receive this summons, they no longer attend unless specially summoned for a particular purpose. It seems to have been a common practice of the House during the eighteenth century to consult the judges. During the first quarter of the nineteenth century Lord Chancellor Eldon and Lord Redesdale, who performed most of the judicial functions of the House, seldom called for their views. During the period from the retirement of Eldon to the Judicature Act the judges were frequently consulted, and almost all the recorded advisory opinions of the judges come within this period. Since the Judicature Act the judges have been consulted in only four cases.1 The establishment of permanent courts of appeal has obviated the necessity for such consultations. In practice this method of consideration was subject to several objections. The judges were busy in their own courts and were irregular in responding. Moreover, the manner in which the House put questions of law, without regard to the form in which the questions arose, or to points actually raised, often made it difficult for the judges to give a satisfactory answer.2 Indeed, in the matter of the Westminster Bank, 2 Cl. & F. 192, the judges declined to answer on the ground that the question was “proposed in terms which render it doubtful whether it is a question confined to the strict legal construction of existing acts of Parliament.” However, in the matter of the Islington Market Bill, 3 Cl. & F. 512, the judges gave their opinion on a bill pending in Parliament; and it will be remembered that the judges were called upon for their opinions on the law of libel when Fox’s bill on that subject was pending in Parliament. The judges are called upon simply to advise; the decision rests with the House alone. Lord Campbell expressed the accepted doctrine in Burdett v. Spilsbury, 10 Cl. & F. 413: “When your lordships consult the Queen’s judges I do not at all consider that you are bound by the opinion of the majority, or even by their unanimous opinion, unless you are perfectly satisfied with the reasons which they assign for the opinion they give.” Individual lords have taken a different view of their duty, noticeably Lord Wynford.1 Still, there are only five instances in modern times in which the House has rendered judgment contrary to the opinion of a majority of the judges.2
The House of Lords reports from 1827 to 1900 contain one hundred and twenty-five cases in which the judges have been called upon for advice. Of this number not more than a score are in any sense landmarks in legal history. Indeed, aside from the relative unimportance of most of these cases, it is difficult to understand upon what principle the House acted in determining when the judges should be assembled. For in twenty-four cases there was no difference of opinion from the beginning of the case in the trial court to its final conclusion in the House of Lords; and in fifty-eight cases the asembled judges were unanimous in opinion. The form of judgment in the House is that of a motion, as in ordinary debates, recorded in the journal of the House. The House, unlike the Privy Council,3 holds itself bound by its own judgments. It also differs from the Privy Council in its privilege of summoning the judges.
The reports of Dow (1812-18) and of Bligh (1819-21) covering the long chancellorship of Lord Eldon, indicate the defects of the House as an appellate tribunal. During this time the judicial functions of the House were performed by Eldon, assisted from time to time by Redesdale, the Irish chancellor. So far as their attainments in equity were concerned these two eminent judges left little to be desired. But Eldon often sat alone. Inasmuch as three peers were required to constitute a House, it often became necessary to catch a bishop or two, or press one or more lay peers into service, to act as dummies, and then the lord chancellor, gravely assisted by these two mutes, finally disposed of appeals from his own decisions. As the Earl of Derby said to his colleagues in 1856, they were upon such occasions “like the lay figures which are introduced in a painter’s studio for the purpose of adding to the completeness of the judicial tableau.” In spite of its manifest absurdity this system was viewed with veneration. The satire of Swift did not prevent Lord Hardwicke from saying that if he went wrong in Penn v. Baltimore1 his errors would be corrected by “a senate equal to that of Rome itself.” Yet in every case that went to the House during his chancellorship Hardwicke himself constituted that senate, and in judicial solitude he affirmed his own excellent judgments. And we read in Blackstone the wondrous tale of peers “bound upon their conscience and honor (equal to other men’s oaths) to be skilled in the laws of their country!” It may be imagined that such a tribunal would also be likely to discourage common law appeals, particularly in view of Eldon’s assertion of his undoubted right to override the judgment of the assembled judges of the common law courts.
Upon the retirement of Eldon the judicial functions of the House were largely dominated for more than twenty years by Lord Brougham. During the period from the resignation of Eldon in 1827 to 1850 there were only three Chancellors,—Lyndhurst, Brougham and Cottenham. Lord Lyndhurst’s judicial services in the House were comparatively unimportant. His experience had been in common law; moreover, his great abilities were political rather than judicial, and when in office his attendance on judicial business was brief and irregular. Lord Cottenham, on the other hand, was an eminent lawyer. During the whole period of Brougham’s supremacy, and until the chancellorship of St. Leonards, aside from occasional assistance from Lord Langdale, the Master of the Rolls, he was the only competent equity judge in the court. The Irish chancellors, Manners and Plunkett, sat occasionally, but their service was inconspicuous. But Cottenham, a pure lawyer, profoundly versed within the narrow sphere of equity, but knowing little besides, was not constituted by mental temperament to take the same view of things as the versatile Brougham. In common law authority, on the other hand, the court was somewhat better, owing to the elevation to the peerage of several common law judges. Best, whose service as a legal peer, under the title of Lord Wynford, was second only to Brougham’s in duration, was a regular attendant on judicial business for a few years only; long before his death he ceased to sit. Chief Justice Tenterden sat quite regularly from his elevation to the peerage in 1827 to his death in 1832. His successor, Denman, was raised to the peerage a few years later expressly to assist Brougham in appellate work, but owing to the heavy work of his own court his attendance was irregular. With the accession of Lord Campbell in 1841, by virtue of his appointment to the Irish chancellorship, the House enjoyed the services of a thoroughly competent common law judge. The uncertain composition of the court was, however, a serious drawback. A litigant had no assurance that his appeal would be heard by a judge whose learning and experience in the particular subject was equal to that of the judge from whom he appealed. If Brougham’s technical knowledge had been equal to his energy and assurance, the situation would have been better; but it must be said that his work, except in Scotch appeals, is not of a high order. During the ten years from 1850 to 1860 five chancellors succeeded one another in rapid succession: Truro, St. Leonards, Cranworth, Chelmsford and Campbell. Truro left appellate work to Brougham, and St. Leonards and Cranworth, who frequently sat without a third peer, were so notoriously at odds that judgments were constantly affirmed on appeal in consequence of a dead-lock. To such grounds of complaint may be added the intermittent sittings of the court and consequent delays, its extreme disregard of the proceedings and engagements of the other courts, its absolute irresponsibility, and the immense expense attendant upon its procedure. Its habit of transacting legal business through the legislative form of general debate has always been a serious drawback. It always conduces to the dignity of a court, and to the authority of the rules which it lays down for future guidance, to formulate a single considered opinion clearly expressing the grounds upon which the judgment is based. Under the practice of the House, where each judge usually gives independent expression to the reasons upon which his vote is based, it is often extremely difficult to extract the ratio decidendi.
The judicial functions of the Privy Council arise out of its ancient position as the concilium ordinarium of the King, which decided cases that were too important for the ordinary courts but not of sufficient importance for the House of Lords. From this source sprang the Star Chamber and the Court of Requests as off-shoots. The first instance of the exercise of independent appellate jurisdiction by the Privy Council occurs in the reign of Elizabeth, when it took jurisdiction of an appeal from the Channel Islands. Coke calls the Council a board, not a court; and Hale, in treating systematically of all the existing jurisdictions, mentions it only in connection with its subservience to the House of Lords. By gradual encroachment, however, the Council built up a formidable jurisdiction. In the reign of Charles II it acquired jurisdiction of ecclesiastical and maritime appeals. Its judicial functions were placed upon a modern basis by the establishment of the Judicial Committee of the Privy Council (3 and 4, Wm. IV, c. 41), with jurisdiction principally over appeals from the colonies and in ecclesiastical and admiralty cases.1
For nearly two decades the labors of the Judicial Committee were borne mainly by Parke and Brougham. Some of Brougham’s most useful services were rendered in this court, where his encyclopedic mind and liberal views are displayed to best advantage. These two judges were to a great extent relieved by the accession in 1844 of Kingsdown, who served in this court with great distinction for more than twenty years. Kingsdown was one of the great judges of his time. Although a lawyer of vast and varied learning, his grasp of principle led him to deal but little with precedents. In the formulation of the conclusions of the court, in which he bore the principal part, his refined taste and fastidious use of language made his opinions models of judicial expression. From 1854 he practically took charge of appeals in prize cases, interpreting the law of blockade, capture and prize with marked liberality towards freedom of trade. His opinions in the cases of The Franciska, The Gerasimo, and Dyke v. Wolford, in the eighth volume of the State Trials, are good specimens of his style and method.1
From the Common Law Procedure of 1852 to the Judicature Acts of 1873-75
A well defined change in the administration of English law occurred shortly after the middle of the century. Years of agitation against the anomalies and abuses of the prevailing legal system culminated about that time in a series of practical reforms which brought the administration of justice into something like accord with the world of affairs. From this time forward the law ceased to appear to be designed as a restraint upon human activity. First and foremost was the Common Law Procedure Act of 1852. This great measure and its immediate successors largely transformed the ancient procedure. Causes of action by and against the same parties were permitted to be joined, and several equitable defences were allowed. Special demurrers were abolished, together with much of the ancient verbiage, and only such statements as must be proved were essential in pleading. In 1851 that final absurdity in the law of evidence which closed the mouth of the very person who knew most about the matter in dispute was abolished, and the testimony of interested witnesses became simply a matter of credibility. In equity a series of practical reforms removed many of the most obvious defects of procedure; additional vice-chancellors were appointed in 1851 to cope with the burden of arrears, and, above all, in the same year, a permanent court of appeal in chancery was established. The confusion and absurdities of the ecclesiastical administration of probate and matrimonial affairs were finally removed in 1858 by the creation of an independent court for probate and matrimonial causes. The demand for the infusion of new blood into the court of final appeal was also recognized. The Court of Crown Cases Reserved, where points of criminal law could be reviewed, dates from 1848.
But institutions are of little utility unless they are administered by men who are in sympathy with their purpose and spirit. From this point of view the middle of the century is of even greater significance as a turning point in legal history, for it marks the advent of Willes, Bramwell and Blackburn in common law, and of Knight-Bruce, Turner and Page-Wood in equity. Under the guidance of such minds, in which technical learning and common sense were combined in large measure, the law ceased to act as a sort of surprise upon mankind, and the realization of rights became practicable. A few years later the larger interests of the law in the court of final appeal were for the first time adequately administered by the master minds of Westbury and Cairns. This period has been aptly termed by Sir Frederick Pollock the classical period of English law.
Common Law Courts
The central figure in the Court of Queen’s Bench throughout this period was Blackburn. But he was ably assisted, and in some respects supplemented, by the chief justice of the court, Sir Alexander Cockburn (1859-80).
The large measure of public attention which Sir Alexander Cockburn commanded during his lifetime probably led to an undue estimate of the permanent value of his judicial services. Along with gifts which readily attract public admiration, he had an eye for effect little short of dramatic; and his distinguished manner was calculated to impress the senses even when his judgment failed to satisfy the understanding. Still, even a cursory examination of his work reveals singular ability. Combining in an eminent degree logical and imaginative qualities of mind, he was not only a consummate advocate, but also a distinguished judge. Possibly there have been more eminent advocates; certainly there have been more profound judges; but rarely a man who united to such an extent the attributes of each. Like Erskine and Brougham, with whom alone he shares the highest honors of forensic advocacy at the English bar, his mind was more capacious than powerful, clear rather than profound. In judgment he surpassed both, and the acute sensibility which was his most prominent characteristic, manifested itself in a range of imagination to which neither of his great rivals could make any pretension. Indeed, such was the range of his imagination that, had it been balanced by equal strength in reasoning faculty, his mental equipment would have been unsurpassed. But the acute sensibility that characterized his temperament was itself of no inconsiderable aid in the successful discharge of his judicial functions. The law is not merely a system of rules, nor is its administration simply the application of these rules by rigid logical deduction. Since the law is designed to serve the needs of mankind, its efficient administration requires a clear and just appreciation of the facts to which it is to be applied. The successful investigation of facts is therefore an essential preliminary to, and a most important element of, a just determination. And a learned lawyer who is wanting in imagination often misapprehends the bearing upon the facts of rules of which he has no full and pregnant, but only a dry and technical, knowledge. Of course, the value of such qualities depends upon the extent to which they coexist with a logical basis in the understanding; but in the perfect coördination of these diverse qualities resides the highest judicial capacity. In Cockburn’s equipment imaginative qualities certainly predominated. His mind was perhaps too quick and susceptible to admit of the tenacity essential to the highest excellence in the formal exposition of legal doctrines. Hence he was strongest in dealing with facts. At nisi prius his grace of manner, his knowledge of the world, his refined and eloquent diction, and his lucid and orderly intellect, combined to make him an ideal judge. His most conspicuous effort in this sphere was his charge to the jury in the memorable Tichborne case, in the course of which he formulated with eloquence and force the true functions of judges and juries:
“In my opinion a judge does not discharge his duty who contents himself with being a mere recipient of evidence, which he is afterwards to reproduce to the jury without pointing out the facts and inferences to which they naturally and legitimately give rise. It is the business of the judge so to adjust the scales of the balance that they shall hang evenly. But it is his duty to see that the facts as they arise are placed in the one scale or the other according as they belong to one or the other. It is his business to take care that the inferences which properly arise from the facts are submitted to the consideration of the jury, with the happy consciousness that if he go wrong there is the judgment of twelve men having experience in the every day concerns of life to set right anything in respect of which he may have erred. . . . In the conviction of the innocent, and also in the escape of the guilty, lies, as the old saying is, the condemnation of the judge. . . . You have been asked, gentlemen, to give the defendant the benefit of any doubts you may entertain. Most assuredly it is your duty to do so. It is the business of the prosecution to bring home guilt to the accused to the satisfaction of the jury. But the doubt of which the accused is entitled to the benefit must be the doubt that a rational, that a sensible man may fairly entertain, not the doubt of a vacillating mind that has not the moral courage to decide, but shelters itself in a vain and idle scepticism. . . . I should be the last man to suggest to any individual member of the jury that if he entertains conscientious, fixed convictions, although he may stand alone against his eleven fellow jurors, he should give up the profound and unalterable convictions of his own mind. . . . But then we must recollect that he has a duty to perform, and that it is this. He is bound to give the case every possible consideration before he finally determines upon the course he will pursue, and if a man finds himself differing from the rest of his fellows with whom he is associated in the great and solemn function of the administration of justice, he should start with the fair presumption that the one individual is more likely to be wrong than the eleven from whom he differs. He should bear in mind that the great purpose of trial by jury is to obtain unanimity and put an end to further litigation; he should address himself, and in all diffidence in his own judgment, to the task he has to perform, and carefully consider all the reasons and arguments which the rest of the body are able to put forward for the judgment they are ready to pronounce, and he should let no self-conceit, no notion of being superior to the rest in intelligence, no vain presumption of superiority on his part, stand in the way. . . . That is the duty which the juryman owes to the administration of justice and the opinion of his fellows, and therefore I must protest against the attempt to encourage a single juryman, or one or two among a body of twelve, to stand out resolutely, positively, and with fixed determination and purpose, against the judgment and opinion of the majority. . . . There is but one course to follow in the discharge of great public duties. No man should be insensible to public opinion who has to discharge a public trust. . . . But there is a consideration far higher than that. It is the satisfaction of your own internal sense of duty, the satisfaction of your own conscience, the knowledge that you are following the promptings of that still, small voice which never, if we listen honestly to its dictates, misleads or deceives—that still, small voice whose approval upholds us even though men should condemn us, and whose approval is far more precious than the honor or applause we may derive, no matter from what source.”1
By way of disparagement, it was said that Cockburn acquired his knowledge of legal principles while sitting on the bench beside Blackburn. Beyond doubt Blackburn’s vigorous intellect was the ruling power in the Queen’s Bench throughout Cockburn’s service; but, with his great natural acquisitive powers and assiduous application, Cockburn certainly acquired a firm grasp of the fundamental principles of the law. If the scope and activity of his intelligence, and the variety of his pursuits, to some extent impaired the fulness and accuracy of his knowledge of its details, his keen insight and knowledge of the world, acquired through cultivation, travel and extensive intercourse with all classes of men, frequently saved him from pitfalls into which less worldly men would have fallen.. On the whole, his influence has perhaps been felt more in the impulse and direction which he gave to certain topics than in any direct contribution to its formal contents.
The doctrine of partial insanity may be directly traced to his efforts. This doctrine was formulated by him in defending M’Naghten, in 1843, and the advisory opinions rendered by the judges to the House of Lords in a subsequent investigation of the case lent support to his theory. In the subsequent case of Banks v. Goodfellow, 5 Q. B. 549, he applied the doctrine to testamentary cases in terms which have since been generally accepted. His reasoning is that whatever may be the psychological theory as to the indivisibility of the mind, every one must be conscious that the faculties and functions of the mind are various and distinct, as are the powers and functions of our physical organization. The pathology of mental disease shows that while, on the one hand, all the faculties, moral and intellectual, may be involved in one common ruin, as in the case of the raving maniac, in other instances one or more only of these faculties may be disordered, leaving the rest undisturbed—that while the mind may be overpowered by delusions which utterly demoralize it, there often are, on the other hand, delusions which, though the offspring of mental disease, and so far constituting insanity, yet leave the individual in all other respects rational and capable of transacting the ordinary affairs of life.
On the law of libel—particularly with respect to the public press—Cockburn made a durable impression. In the leading case of Wason v. Walter, 4 Q. B. 73, he established the reservation in favor of privileged publications on its true foundation; i. e. that the advantage of publicity to the community at large outweighs any private injury that may be done. He also gave a strong impulse to the prevailing rule with respect to the limits of public criticism. His general principle was perfect freedom of discussion of public men, stopping short, however, of attacks on private character and reckless imputation of motives. When, therefore, a writer goes beyond the limits of fair criticism in making imputations on private character, it is no defence that he believed his statements to be true. “It is said that it is for the interests of society that the public conduct of men should be criticised without any other limits than that the writer should have an honest belief that what he writes is true. But it seems to me that the public have an equal interest in the maintenance of the public character of public men; and public affairs could not be conducted by men of honor with a view to the welfare of the country if we were to sanction attacks upon them destructive of their honor and character, and made without any foundation. Where the public conduct of a public man is open to animadversion, and the writer who is commenting upon it makes imputations upon his motives which arise fairly and legitimately out of his conduct, so that the jury shall say that the criticism was not only honest but also well founded, an action is not maintainable. But it is not because a public writer fancies that the conduct of a public man is open to the suspicion of dishonesty, he is therefore justified in assailing his character as dishonest.”1
Lord Campbell records in his diary in June, 1856: “Having occasion for a new judge to succeed Erle, made Chief Justice of the Common Pleas, I appointed Blackburn, the fittest man in Westminster Hall, although wearing a stuff gown, whereas several Whig Queen’s Counsel, M. P.’s, were considering which of them would be the man, not dreaming that they could all be passed over. They got me well abused in the Times and other newspapers. . . . This was the sort of thing: ‘Everybody has been going about town asking his neighbour, who is Mr. Colin Blackburn? The very ushers in the courts shake their heads and tell you they never heard of such a party.’ ‘His legal claims to this appointment stand at a minimum.’ ‘The only reason which can be assigned for this strange freak of the Chancellor is that the new puisne judge is a Scotchman.’ ” But Lyndhurst came to his rescue in the House of Lords. “I have been asked,” he said, “who is Mr. Blackburn, and a journal which takes us all to task by turns has asked somewhat indignantly, ‘Who is Mr. Blackburn?’ I take leave to answer that he is a very learned person, a very sound lawyer, an admirable arguer of a law case and eminently fitted for a seat on the bench.” Never was a prediction more completely realized. This unknown Scotch lawyer proved himself to be the greatest common law judge of the century, and was destined in his long career of nearly thirty years in the Queen’s Bench, the Exchequer Chamber and the House of Lords, to make a larger volume of substantial contributions to English law than any other judge in English history save only Mansfield. From the outset he easily held his own with such judges as Cockburn, Wightman, Lush, Archibald and Field, and it was not long before he was recognized as the corner stone of the Queen’s Bench. In commercial law, of which he was completely master, he alone saved his court from being overshadowed by the authority of the Common Pleas under Willes. In real property law, also, he had no superior among his associates; and he was such a good all-round lawyer that even in those branches where a colleague was something of a specialist, he easily took second place. An acute observer has thus described the Court of Queen’s Bench in action during Blackburn’s supremacy: “So keen and alert was his mind, so full of the rapture of the strife, that in almost all cases it was he who in the point to point race made the running or picked up the scent. On such occasions all the papers and authorities in a case seemed to be drawn by a sort of magnetic attraction to his desk. And behind them he would sit with his wig on the back of his head, plunging his short-sighted eyes into one and another, firing off questions in quick succession at counsel on both sides, raising difficulties and objections, and at last, when the point was cleared, handing the conclusive document to the Lord Chief Justice, who, meanwhile, had often been leaning back in his chair in amused enjoyment of the scene, but, always ready to intervene at the psychological moment and bear off the honors of a point, or to enforce the conclusion in a judgment of inimitable force and diction.”
It is obvious that the law reports furnish no adequate memorial of the services of such a judge. Yet the volume of his work is immense. His name appears in almost every case, and, although his opinions are often admirably terse, he hardly ever simply concurred; on the other hand, he delivered the judgment of the court oftener than any of the puisnes. When he does undertake to formulate his views he gives fully the process by which he reaches his conclusion. While not so profuse in the use of authorities as Willes, his review of the cases is always thorough and interesting. He had no graces of style or flashes of imagination, but every conclusion is worked out with the hard headed and closely knit logic of his race. With a mind as vigorous as Jessel’s, and a humor, when called for, as caustic, he was always conscientiously scrupulous in the discharge of his judicial functions. Turner v. Walker, 1 Q. B. 118, illustrates his candor.
It is impracticable to give within brief limits more than an illustration of Blackburn’s vast contributions to the law. In mere volume his work was equalled during the century by Parke alone. There are more than six hundred cases in the reports in which he formulated in detail the reasons which influenced his judgment, and in more than one-quarter of these cases he delivered the unanimous opinion of the court. The list1 of cases cited in the note will give some indication of his work as a justice of the Court of Queen’s Bench, as a member of the Court of Exchequer Chamber, as an adviser to the House of Lords, and as a member of the court of final appeal.
As a general illustration of his method of exhausting a subject, both from principle and from precedent, reference may be made to his examination, in the case of Capital and Counties Bank v. Henty, 7 App. Cas. 741, of the modern law of libel. The value of the details of his elaborate arguments may be observed in his admirable statement in Cole v. North Western Bank, 10 C. P. 362, of the difficulties which the common law put in the way of the customs of merchants. Lord Blackburn contributed a leading case to the reports, not after his death, like Lord St. Leonards, but while serving as a judge. A litigant named Rosanna Fray, who felt aggrieved at his disposition of her case, sued him for damages, and the case of Fray v. Blackburn, 3 B. & S. 576, formally established the principle that no action will lie against a judge of a superior court for anything done in his judicial capacity, although it be alleged to have been done maliciously and corruptly.
Besides Wightman and Crompton (1853-65) in the earlier part, the other principal puisnes in the Queen’s Bench during the period were Mellor (1861-79), Shee (1863-68), and Lush (1865-80). Lush was the ablest of these judges; he closed his painstaking and useful service in the Court of Appeal.
During this period the Court of Common Pleas grew rapidly in importance and reached its highest standard. After Cockburn’s short service in this court (1856-59) the succeeding chiefs were Erle (1859-66), and Bovill (1866-73). In this court Erle added to the substantial reputation that he had made on the Queen’s Bench. The Court of Common Pleas under his presidency, as the Attorney-General said on his retirement, “obtained the highest confidence of the suitor, the public and the profession.” Bovill was unsurpassed in his practical mastery of commercial law, but his work as a judge suffered from want of more careful reflection in reaching conclusions.
The genius of this court, however, was Willes (1855-71), who was universally regarded by his contemporaries as the most learned lawyer of his time. He is said to have read systematically all the reports, from the first Year Book to the last volume of Meeson and Welsby. He was consequently familiar with the history of the law, and understood the relation which the principles of his day bore to past times. He was intimately acquainted with all the changes which the common law had undergone, and with all the rules and forms of the ancient system of pleading. He knew by heart every old term and maxim. To this thorough knowledge of the principles and history of English law in all its branches he added an extensive and accurate acquaintance with foreign systems of jurisprudence. To the great fountain head of civil law he habitually resorted for suggestion and comparison and analysis. Withal, his vast learning was his servant, not his master. And he could be as forcible with brevity as he was impressive in learning. Although his opinions are generally full and completely reasoned, his conclusion in the bankruptcy case of Marks v. Feldman, 5 Q. B. 284, is one of the shortest opinions on record: “Dolus circuiter non purgatur.” He constantly drew upon his vast store of case law for illustration and argument, to the unfailing interest of the profession, if not with uniform success with reference to the issue; but he never relied on mere authority where a principle could be discovered. An occasional tendency toward academical refinements, apparently inseparable from most scholastic minds, may be observed in his work, but it is almost invariably confined to the details of his exposition. His substantial conclusion is always marked by sound common sense. Unlike so many of his associates, whose technical learning was inferior to his own, he had no respect for technicalities, which he never hesitated to brush aside when they interfered with an obvious principle. It was this combination of mastery of detail and good sense which led to his employment in the preparation of the common law procedure acts. No one less familiar with the useless subtleties and effete technicalities of the legal system of that time, or less endowed with the breadth of mind necessary to free himself from their trammels, could have effected so completely and satisfactorily the revolution brought about by those acts.
Although reserved in disposition, among his intimates he seems to have been a singularly attractive personality. The authority of judicial station never dimmed the finer sensibilities of his nature. He was a man of the broadest culture, and seems to have taken all knowledge for his province. The classics were his familiar companions, and he found time to master all the spoken languages of Europe. The tone of his mind is largely reflected in the poetry of Wordsworth, of which he was a diligent student and admirer. In the unremitting performance of his judicial duties and the indefatigable pursuit of knowledge his over-worked mind finally gave way, and, in a moment of temporary insanity, he committed suicide. His remarks in the Fernandez contempt case, 30 L. J., C. P. 321, in answer to the suggestions of counsel that the dignity and privileges of the court were involved, may be taken as a true index to his judicial character: “I take leave to say that I am not conscious of the vulgar desire to elevate myself, or the court of which I may be a member, by grasping after pre-eminence which does not belong to me, and that I will endeavor to be ever valiant in preserving and handing down those powers to do justice and to maintain truth which, for the common good, the law has entrusted to the judges.”1
Besides Williams, who continued his service in this period, valuable assistance was rendered by Byles (1858-73), Keating (1859-75), and M. E. Smith (1865-71). Byles contributed largely to the popularity of the court in commercial cases, in which he was extremely accurate. Smith was an all-round influence for good; sagacious, sensible and practical, he added to the high standing of his tribunal.
During this period the Court of Exchequer declined in reputation, particularly during the latter half. Kelly, who succeeded Pollock in 1866 as Chief Baron, was old and soon became infirm; and an ill-assorted collection of barons, of whom Martin was the ablest,1 detracted from the unity and authority of the court. Nevertheless, this court was distinguished throughout the period by the services of Bramwell (1856-76).
In any consideration of modern English judges Baron Bramwell must hold a conspicuous place. In mere length of service (thirty-six years) he is surpassed in modern times only by Baron Parke, whom he succeeded. He is an interesting link between the past and the present. Coming to the bar soon after Lord Tenterden apologetically made a few changes in the supposed perfections of the common law, he lived to frame the Common Law Procedure Act and to assist in the final overthrow of the old system by the Judicature Act. He was doubtless a great lawyer and a learned judge, but his marked personality exerted an influence not limited by learning—the breezy, invigorating influence of sturdy common sense caustically applied to particular problems. In almost every respect he was a complete contrast to his prosaic predecessor, Baron Parke. He chose to mask a genial and generous nature under the garb of humorous cynicism; but in reality he was no cynic. Throughout his career he was one of the most popular as well as interesting of the judges. With a personality as vigorous as that of Maule or of Westbury, he was one of the sturdiest, manliest and kindest of men.2 He did not always respect conventional traditions, and his plain directness of speech sometimes shocked sensitive people. In the fearless discharge of his judicial functions he was never subservient to public opinion. Some observations in a charge having met with applause, he paused and then said quietly, “I recall those words—I must have been saying something foolish.”
Bramwell received his legal training in the strictest school of special pleading, and was familiar with all its mysteries. But he was not, like Parke, blind to the defects of the system. “I think,” he said, “that some twenty or thirty years hence, when the present generation of lawyers has ceased to exist, it will scarcely be believed that such a state of things did exist in a civilized country.” Consequently, when public opinion was ripe for a change, Bramwell was chosen for the task. It was conceded that Bramwell and Willes did most of the work. The final overthrow of the old system by the Judicature Acts received his cordial support.
He occasionally showed the effect of overtraining in the dialectic of special pleading in his fondness for framing dilemmas (see his opinion in the Bernina case, 13 App. Cas. 11) and, more rarely, in the maintenance of metaphysical positions somewhat removed from common sense. One of the most conspicuous instances of this susceptibility to scholastic logic was his contention that an action for malicious prosecution will not lie against a corporation (Abrath v. North Eastern Ry., 11 App. Cas. 247). A corporation, he maintained, is incapable of malice or motive; if the stockholders direct a malicious prosecution they are personally liable, while such action by the directors would be ultra vires.1 Another characteristic perversion was his application of the maxim volenti non fit injuria. “It is a rule of good sense,” he said in Smith v. Baker, (1891) A. C. 325, “that if a man voluntarily undertakes a risk for a reward which is adequate to induce him, he shall not, if he suffers from the risk, have a compensation for which he did not stipulate. He can, if he chooses, say, ‘I will undertake the risk for so much, and if hurt you must give me so much more, or an adequate equivalent for the hurt.’ But drop the maxim. Treat it as a question of bargain. The plaintiff here thought the pay worth the risk and did not bargain for a compensation if hurt; in effect he undertook the work with its risks for his wages and no more. He says so. Suppose he had said, ‘If I am to run this risk you must give me six shillings a day, and not five shillings,’ and the master agreed, would he in reason have a claim if he got hurt? Clearly not. What difference is there if the master says, ‘No, I will only give the five shillings.’ None. I am ashamed to argue it.” He reargued the same matter in Membery v. Great Western Ry. 14 App. Cas. 179: “I hold that where a man is not physically constrained, where he can at his option do a thing or not, and he does it, the maxim applies. What is volens? Willing; and a man is willing when he wills to do a thing and does it. No doubt a man, popularly speaking, is said to do a thing unwillingly, with no good will; but if he does it, no matter what his dislike is, he prefers doing it to leaving it alone. He wills to do it. He does not will not to do it. I suppose nolens is the opposite of volens, its negative. There are two men; one refuses to do work, wills not to do it, and does not do it. The other grumbles, but wills to do it and does it. Are both men nolens, unwilling? Suppose an extra shilling induced the man who did the work. Is he nolens or has the shilling made him volens? There seems to be a strange notion that a man who does a thing and grumbles is nolens, is unwilling, has not the will to do it, or that there is something intermediate nolens and volens, something like a man being without a will and yet who wills. If the shilling made him volens, why does not the desire to continue employed do so? If he would have a right to refuse the work and his discharge would be wrongful, with a remedy to him, why does not his preference of a certain to an uncertain law not make him volens as much as any other motive? There have been any infinity of profoundly learned and useless discussions as to freedom of the will; but this notion is new.”
The truth is, the good Baron’s political views were so pronounced that in a certain class of cases they influenced his judicial opinions. He was the stoutest of liberals, and looked with alarm upon modern socialistic tendencies—“grandmotherly protection,” he termed it. “Please govern me as little as possible,” he said. This was his point of view on many legal doctrines.1 Sometimes this tendency moved in directions where his fearless independence and plain speech were most needed. In the trades union case, R. v. Druitt, 10 Cox Cr. Cas. 592, he asserted in broad terms that by the common law of England the liberty of a man’s mind and will, how he should bestow himself and his means, his talents and his industry, was as much the subject of the law’s protection as was that of his body. Certain details of his exposition of the law in that case have since been regarded as obiter dicta, but his views deserve careful consideration. Nothing could be saner than his views in the great Mogul Steamship case (1892), A. C. 25, on the vital subject of freedom of trade. “It is admitted,” he said, “that there may be fair competition in trade, that two may offer to join and compete against a third. If so, what is the definition of fair competition? What is unfair that is neither forcible nor fraudulent? It seems strange that to enforce freedom of trade, of action, the law should punish those who make a perfectly honest agreement with a belief that it is fairly required for their protection.” The inquiry, “What is unfair that is neither forcible nor fraudulent?” is the sum and substance of his legal and political philosophy. Throughout his judicial and political career he stood firmly on the ground of strict adherence to contract. “A bargain is a bargain,” he used to say; and he strongly deprecated making contracts for people, whether by legislation or through equity. It may be inferred, therefore, that he had little sympathy with certain equitable doctrines. In the case of Salt v. Northampton, (1892) A. C. 18, on the validity of fetters on redemption in mortgage transactions, he took occasion to say: “Whether it would not have been better to have held people to their bargains, and taught them by experience not to make unwise ones, rather than relieve them when they had done so, may be doubtful. We should have been spared the double condition of things, legal rights and equitable rights, and a system of documents which do not mean what they say. But the piety or love of fees of those who administered equity has thought otherwise, and probably to undo this would be more costly and troublesome than to continue it.” And he adverts, in Derry v. Peck, 14 App. Cas. 337, to what he considered the mistake made by courts of equity in “disregarding a valuable general principle in their desire to effect what is, or is thought to be, justice in a particular instance.” But if he was inclined to lean too much toward the legal as distinguished from the equitable view of rights, he seldom failed to temper his common law views with the good sense which gives to technical rules their just limitations. Bramwell was quick to see the weak side of a case against a railway corporation. This tendency was not, however, an original prejudice, but rather an effort to rectify the injustice done by misdirected sympathy for the weaker side. “Let us hold to the law. If we want to be charitable, let us gratify ourselves out of our own pockets” (1891) A. C. 346. The authorities, he said on another occasion, “show a generous struggle on the one hand to make powerful companies liable to individuals, and on the other hand an effort for law and justice. Sometimes one succeeds, sometimes the other, and the cases conflict accordingly” (13 App. Cas. 51). “It does not follow that if a man dies in a fit in a railway carriage there is a prima facie case for his widow and children, nor that if he has a glass in his pocket and sits on it and hurts himself, there is something which calls for an answer or explanation from the company.”
Aside, however, from the well-recognized class of cases in which he was known to entertain favorite prepossessions, he was a sound judge. As a whole, clearness of perception, strength of judgment and wide acquaintance with the world of affairs are indelibly stamped upon his work. On many occasions his quick perception, good sense and dry humor were admirable solvents to the doubts and difficulties of his more subtle-minded brethren. A good instance is his characterization of the distinction sought to be made in Derry v. Peek, 14 App. Cas. 337, between legal and actual fraud: “I do not think we need trouble ourselves about ‘legal fraud,’ nor whether it is a good or bad expression, because I hold that actual fraud must be proved in this case to make the defendants liable, and, as I understand, there is never any occasion to use the phrase ‘legal fraud’ except when actual fraud cannot be established. ‘Legal fraud’ is only used when some vague ground of action is to be resorted to, or, generally speaking, when the person using it will not take the trouble to find, or cannot find, what duty has been violated or right infringed, but thinks that a claim is somehow made out.” In commercial law, in particular, he was a recognized authority. His powerful dissenting opinion in the Vagliano case (1891), A. C. 107, shows his familiarity with the subject. It was he who suggested the theory of limited liability. In the domain of torts, the application of the doctrine sic utere tuo ut alienum non laedas in Rylands v. Fletcher was due, in the first instance, to Bramwell, who differed from the other judges in the Exchequer.
Probably he was at his best sitting with a special jury. There, what has been aptly called the high initial velocity of his mind in mastering facts, assaying evidence and applying general principles to particular facts, came into full play. His insight into human nature was keen; he knew its weaknesses and its faults, and humbug had no chance before him. The force of common sense and caustic humor could go no further than his admirable charges to juries. In a case where a farmer was charged with shooting at a boy who was stealing apples, after a lengthy argument by the counsel for the defendant, Bramwell charged the jury as follows: “Considering the materials he had, I am surprised, gentlemen, that the learned counsel did not make his speech longer. I, however, shall leave the case to you in eight words: The prisoner aimed at nothing and missed it.” He had, moreover, rare skill in putting his view of a case before a jury without seeming to take a side. His highly original and independent mind contributed much to enliven the reports of his time. His clear and analytical intellect expressed itself in a vigorous and epigrammatic style which is as rare in the reports as it is refreshing. No man appeared to think less of words and more of substance, yet few Englishmen have used their mother tongue with greater effect. His discussion, in the case of the Commissioners of the Income Tax v. Pemsel, (1891) A. C. 531, as to what constitutes a charity, is a good example of his happy colloquialism:
“I hold that the conversion of heathens and heathen nations to Christianity or any other religion is not a charitable purpose. That it is benevolent, I admit. The provider of funds for such a purpose doubtless thinks that the conversion will make the converts better and happier during this life, with a better hope hereafter. I dare say this donor did so. So did those who provided the fagots and racks which were used as instruments of conversion in times gone by. I am far from suggesting that the donor would have given funds for such a purpose as torture; but if the mere good intent make the purpose charitable, then I say the intent is the same in the one case as in the other. And I believe in all cases of propagandism there is mixed up a wish for the prevalence of those opinions we entertain, because they are ours. But what is a charitable purpose? Whatever definition is given, if it is right as far as it goes, in my opinion this trust is not within it. I will attempt one. I think a charitable purpose is where assistance is given to the bringing up, feeding, clothing, lodging and education of those who from poverty, or comparative poverty, stand in need of such assistance—that a temporal benefit is meant, being money or having a money value. This definition is probably inefficient. It very likely would not include some charitable purposes, though I cannot think what, and include some not charitable, though also I cannot think what; but I think it substantially correct, and that no well-founded amendment of it would include the purposes to which this fund is dedicated. . . . I think there is some fund for providing oysters at one of the Inns of Court for the Benchers; this, however benevolent, would hardly be called charitable; so of a trust to provide a band of music on the village green.”
For authorities however venerable, if irrational or founded on doubtful principles, he had scant respect. “I am prone,” he once said, “to decide cases on principles, and when I think I have got the right one I am apt (I hope I am not presumptuous), like Caliph Omar, to think authorities wrong or needless.” He was well equipped with self-confidence. “Lord Cairns was a great lawyer and a consummate judge,” he said in one case, “but I differ with him unhesitatingly.” He was too tenacious of his personal opinions, some thought. The view that posting acceptance of an offer which never reaches the offerer constitutes a contract, is one of the doctrines to which he would not assent.1 It is often amusing to observe his efforts to enforce his favourite views. In the Membery case2 his discussion of the doctrine volenti non fit injuria was really unnecessary to the determination of the issue. This is the way he introduces it: “Of course it is in a sense not necessary that I should express an opinion on this, as the ground I have just mentioned, in my opinion, disposes of the case. But if, instead of mentioning that ground first, I had mentioned the one I am now dealing with, it would, on the same reasoning, be unnecessary to mention that. What I am saying is not obiter, not a needless expression of opinion on a matter not relevant to the decision. There are two answers to the plaintiff, and I decide against him on both, one as much as the other.”3
The courts of equity responded slowly to the spirit of reform. A new and better period in chancery may be said to have begun with the accession of Lord Westbury to the woolsack in 1861. During the succeeding fifteen years the Chancery was presided over by Westbury, Cairns, Hatherley and Selborne. Of these judges, Westbury, Cairns and Selborne rank among the most distinguished names known to English law.
Lord Westbury once said of a distinguished contemporary that “the monotony of his character was unrelieved by a single fault.” From such a characterization Westbury himself was surely exempt. With professional capacity of the highest order he combined peculiarities of mind and faults of character which marred much of his work. His eminence as a lawyer was unquestioned by his bitterest enemies. Baron Parke considered him the greatest advocate at the bar; Sir George Jessel described him as a man of genius who had taken to the law. Gladstone, who had frequent occasion to learn the temper of Westbury’s mind, said of him: “It was subtlety of thought, accompanied with the power of expressing the most subtle shades of thought in clear, forcible, and luminous language, which always struck me most among the gifts of Lord Westbury. In this extraordinary power he seemed to have but one rival among all the men, lawyers and non-lawyers, of his age. I may be wrong, but the two men whom, in my own mind, I bracketed together were Lord Westbury and Cardinal Newman.” It was this rare combination of thought and expression which particularly distinguished him. His power of lucid statement, which was accompanied by a rare capacity for marshaling a multitude of facts and collateral details in their logical order, arose from readiness and clearness of conception. “Clearness of expression,” he said, “measures the strength or vigor of conception. If you have really grasped a thought, it is easy enough to give it utterance.” His mental bent was almost wholly judicial; he convinced by appeals to sober judgment rather than to considerations of expedient or sentiment; and the elevation which he gave to the simplest discussion arose from his habit of bringing the driest details to the test of original principles.
Westbury’s most conspicuous defect was an arrogant consciousness of intellectual superiority, manifesting itself, with utter disregard for the feelings of others, in fondness for caustic wit and rather spinous humor. He was too much in the habit of what his biographer has termed thinking aloud, without regard to the effect which the expression of his thoughts might have on others. His deliberate method of setting people right provoked intense irritation; when roused by pretentiousness or humbug, his sarcasm fell with blistering effect. In fact he bids fair to be remembered by the public at large merely as the author of innumerable sharp sayings. He took a characteristic part in the theological controversies of the time; baiting the bishops in the House of Lords was his favorite occupation. By his judgments in the case of the authors of “Essays and Reviews” and the Colenso case, he was said to have “dismissed hell with costs and taken away from the orthodox members of the Church of England their last hope of everlasting damnation.” His description of a synodical judgment as “a well-lubricated set of words, a sentence so oily and saponaceous that no one could grasp it,” has never been forgotten. The consequence of his unfortunate lack of restraint was that his enemies not only succeeded in blocking the great scheme of law reform which seems to have been the one continuous purpose of his life, but also contrived to make so much of a case of official delinquency in the distribution of the patronage of his office that Westbury resigned after a vote of censure. It may suffice to say that his personal honor was in no way involved. Since Westbury’s day other men, better suited by temperament for the patient diplomacy by which alone radical legislative action is attained, have carried on the work of law reform which he began; and as the outline of his splendid conception is gradually filled in by accomplished fact, it becomes us to remember him for his aspirations as well as for his actual achievements.
The law reports contain about two hundred and fifty cases in which Lord Westbury formulated an opinion. In reading them, one is struck with his facility in stripping cases of complicated and bewildering detail, and reducing them to simple, intelligible propositions. Impatient of authority, he sought to ground his conclusions upon elementary principles. It is common to find in his work such opening statements as these: “My lords, we are all exceedingly glad when, in a collection of miserable technicalities such as these which are before us here, we can find our way to something like a solid and reasonable ground of decision” (5 E. & I. App. 25). “There is no difficulty at all in the matter, and if the general rules of law were more steadily kept in view it would be unnecessary to range up and down a variety of decisions, because those rules would afford the best answer and secure the removal of every difficulty” (5 E. & I. App. 529). His skill in exposition was of the highest order. His statement of the principles of extra-territorial jurisdiction in Cookney v. Anderson, 32 L. J., Ch. 427, is a good illustration of his style and method. Although his lack of respect for authority sometimes led him to go somewhat beyond the mark, his mental acuteness was restrained, in the exercise of his judicial functions at least, by good sense.1 His substantial contributions to the law deal mostly with topics upon which there was a conflict of opinion, or which fall outside the ambit of well-settled authority. His great opinion in the case of Taylor v. Meads, 4 DeG., J. & S. 597, on the testamentary capacity of married women, is a good illustration of his remarkable skill in settling discussion of a complex subject. The domain of what has been called private international law afforded scope for his peculiar powers.1 Trade-marks and patents were also congenial subjects.2 He made several contributions of importance to the law of prescriptive easements.3 Other miscellaneous decisions will be recognized by the professional reader as legal landmarks.4
It is difficult to characterize the mind and career of Lord Cairns (1868; 1874-80) without seeming to exaggerate. It may therefore be well to quote, at the outset, the deliberate opinion of his life-long professional and political antagonist, Lord Selborne. Referring to Lord Salisbury’s statement that Cairns “had an eminence not often granted to a single man, in that he was equally great as lawyer, statesman and legislator,” Selborne said: “Even that enumeration of his titles to greatness fell short of the truth; for he was also a great orator, and a man exemplary in private life. It would be difficult to name any chancellor (except Lord Hardwicke) who was certainly his superior, or indeed in all respects his equal. Lord Somers was a greater statesman, Lord Lyndhurst a greater orator, Lord Eldon a more profoundly learned lawyer; but the degree in which they severally excelled him in these respects was less than that in which he excelled them in other qualities, more necessary than statecraft or eloquence and not less necessary than learning for a great judge; and the gifts which in them shone separately were in him combined. Lord Thurlow, Lord Rosslyn and Lord Westbury had not less ability; but he was more of a statesman, a more persuasive orator and on the whole a better judge than any of them. There have been chancellors, such as Lord Talbot, Lord Cranworth and Lord Hatherley, whose private virtues were not less conspicuous and whose public reputation was not less honorable, yet who were not, like him, as fit to play a great part in political as in judicial affairs.”1 By Jessel, Benjamin, and his most distinguished contemporaries, he was regarded as the ablest lawyer of his day. It may be said at the outset that his high reputation derived no adventitious support from personal affection. He was never popular. His manner was austere, cold and sternly self-repressive. This was undoubtedly due in a large measure to continual ill health. His gloomy religious views may also have influenced his temperament. Religion, indeed, seems to have enlisted the deepest feelings of his nature. It was with him the paramount consideration, in comparison with which, he once said, all else—honor, reputation, wealth, recreation—were “nothing, absolutely nothing.” A stern Protestant in his views of ecclesiastical polity, he disliked with all the strength of his austere nature the tolerance of modern thought.
The most obvious characteristic of his career is his astonishing versatility. At the outset of his professional labors his constitutional diffidence was so great that he deemed himself fitted only for chamber practice. He soon gained confidence in his powers, however, and at an early age became the acknowledged leader of the chancery bar. Although his professional labors were confined almost entirely to equity cases, he argued many Scotch and ecclesiastical appeals with marked ability; and on the rare occasions when he appeared before a jury—such as the Windham lunacy case, and the Alexandra case, arising out of our Civil War—he displayed, as if by intuition, the most consummate powers of popular advocacy. In public life, too, he displayed a capacity for statesmanship which few great lawyers have possessed. He was not only “great in council,” as Disraeli said, but, next to the Prime Minister himself, he was the ablest orator of the Conservative party. Almost alone among great lawyers, he seems to have had a strong apprehension of the class of considerations which determine party policy and influence public opinion. Legal distinctions, it has often been pointed out, are so specific in kind that they seem to incapacitate ordinary minds for the apprehension of moral and political distinctions. Distinguished lawyers in public life are apt to become either so merged in mere party advocacy that they cease, like Westbury, to exhibit individual character and conviction, or, like Selborne, when once they leave the firm ground of legal principle, they lean toward extreme views on either side from sheer want of apprehension of the intermediate resting places of political thought. But Cairns’ public speeches are replete with independent political thought and strong personal conviction, and his sagacity is as keen and his logic as close on subjects of purely political interest as on legal topics. In manner, both at the bar and in public life, he was Scotch rather than Irish, logical rather than emotional. His great speech on the Reform Bill of 1867 was described by one of his opponents as “frozen oratory;” “It flows like the water from a glacier; or rather it does not flow at all, for though Cairns never hesitates or recalls a phrase, he can scarcely be called a fluent speaker. His words rather drop with monotonous and inexorable precision than run on in a continuous stream. The several stages of his speech are like steps cut out of ice, as sharply defined, as smooth and as cold.” There was a studied absence of passion, and an entire concentration on thought, clear exposition and remorseless logic. Beneath his cold exterior, however, there was the deepest feeling. Occasionally, when he was deeply moved, this suppressed fire came to the surface. One of these occasions was the disestablishment of the Irish Church, which aroused the deepest feelings of his nature. An eye witness to the final debate relates how “the Lord Chancellor, pale, emaciated, evidently very ill, but possessed by a spirit which no physical infirmities could overcome, stood at the side of the woolsack pouring forth for hours an unbroken stream of clear and logical eloquence against the measure before the House.”1
An examination of Cairns’s judgments is apt, on first view, to be somewhat disappointing. In the first place, ill health constantly interfered with his work. He participated in the hearing of less than four hundred cases during his whole judicial career. In more than half of these cases he did not formulate an independent opinion. Moreover, Cairns seldom explained the process by which his mind reached a result. Yet his mind was severely logical; he had attained the perfect mental discipline which enabled him to follow without reflecting on the rule. With his swift, strong, subtle instinct for the truth, he was able to disregard the slow, syllogistic processes along which ordinary minds move. He made no display of learning, like Willes and Blackburn, though his learning was unquestioned. He exhausted the argument from principle, and only in conclusion illustrated it by reference to a few leading cases. His solution of the great case of Rylands v. Fletcher, 3 E. & I. App. 330, on the “duty of insuring safety,” is a typical illustration of his method. Ward v. Hobbs, 4 App. Cas. 19, is one of the rare instances in which he exposed the process by which he reached his conclusion. For a specimen of his skill in exposition reference may be made to his address to the jury in the celebrated Windham lunacy case: “It may be convenient to remind you what the precise issue is. You are to decide whether Mr. Windham is incapable of managing his affairs—not whether he is of unsound mind, but whether he is incapable of managing his affairs by reason of unsoundness of mind. The object of making that distinction is plain and simple. There are many cases in which a man may be said to be incapable of managing his affairs. He may be incapable by reason of ignorance, or on account of inexperience and want of peculiar skill, or because of a preference for literary or other pursuits of a kind utterly unconnected with the management of property, or in consequence of a ruinous and inveterate habit of gambling. Such a person may justly be said, in a certain sense, to be incapable of managing his affairs, and, indeed, the Roman law made no distinction between unthrifts and idiots. But in England a man cannot be deprived of his personal liberty or his property on the ground of incapacity, until a jury of his countrymen are satisfied, first, that he is incapable of managing his affairs, and, secondly, that his incapacity arises from unsoundness of mind. Moreover, you are to bear in mind that the presumption is in favor of sanity, and that it lies upon those who allege unsoundness to make out and prove their case. I call your attention to the peculiar nature of the insanity alleged in the petition against Mr. Windham. It is not an ordinary case of insanity accompanied by delusions—a case in which the great and critical test of sanity is the absence or presence of hallucinations—but a case of imbecility approaching to idiocy, or amounting to unsoundness of mind. In a case of insanity accompanied by delusions, the mode of investigating it, so as to arrive at the truth, is a matter of great difficulty and doubt; but in a case of imbecility, where there is either no mind at all or next to none, the task of coming to a right or just decision is comparatively easy. It is impossible for a man who is said to have only a limited amount of mind, or none at all, to assume at any moment or for any purpose a greater amount of mind than he really possesses. If the mind is not there, or only there in a certain small and limited quantity, no desire on the part of the individual to show a greater amount of mind, or to assume the appearance of a greater amount of mind, can supply him with that which nature has denied him. Hence when a man is charged with imbecility, if it can be shown that for a considerable time and in various situations he has acted like a natural being, any acts of folly which might be alleged against him should be carefully, deliberately and keenly investigated, because at first sight it is next to impossible that a man can at certain times assume a mind and intelligence which are wholly absent.”
Although a scholar of the highest attainments, Cairns’ opinions are never academic. The frugality of his style is in marked contrast to the fertility of thought. Of words or illustrations or expository digressions, he is sparing to a fault; he never relaxes the tension of the argument. These characteristics point toward the most conspicuous quality of his work—lucidity. The most complex legal problem seemed to present no difficulty to his mind. He disembarrassed himself of details and grasped principles, and by strict logical deduction from general principles about which there could be no dispute, he not only settled the law, but also terminated discussion.1 He had, moreover—and this was his crowning gift—that cultured imagination which is essential to the highest juridical art. Imagination, after all, is, for the most part, simply depth and breadth of insight; and, far from being detrimental to judicial thought, surely no quality could be more desirable in the administration of the law than the intellectual and imaginative insight which goes to the heart of things and expresses in perfect form a rule for future guidance. The luminous effect of Cairns’ imagination may be observed to splendid advantage in the case of Gardner v. London, etc., Ry., 2 Ch. App. 201, on the vexed question of the relative rights and obligations of railway companies and their debenture holders. The briefs of counsel on either side will indicate the doubt and conflict of opinion in which the subject was involved. Cairns’ solution of the problem by reference to a going concern as a “fruit-bearing tree” is highly imaginative, and was so convincing that further discussion ceased. In the vibration case of Hammersmith Ry. v. Brand, 4 E. & I. App. 215, involving the right to recover for damage incident to authorized acts, he failed for once to convince his colleagues. Probably his most important contributions to the law lie within the domain of company affairs. But they are scarcely superior to his judgments in cases of contract. One of his most original contributions to jurisprudence is his series of decisions as arbitrator in the complicated affairs of the Albert Insurance Company. This company was the final result of various financial transformations, and many of the claims against it turned upon the doctrine of novation. Cairns took an advanced position with respect to the assent of the debtor to novation, justifying his position by considerations drawn from the rapidly changing nature of commercial transactions in the present day.1 As a law reformer he was the worthy successor of Westbury. Although the Judicature Act of 1873 was passed under Lord Selborne’s chancellorship, public opinion had been aroused and the main outlines of the reform suggested by Cairns, who was chairman of the first Judicature Commission of 1866. It was he who influenced the modification of the act so as to retain the final appellate jurisdiction of the House of Lords.1
Hatherley (1868-’72) sustained on the woolsack the reputation which he had made as vice chancellor. He was an accurate and sound judge, although somewhat overshadowed by his distinguished contemporaries. He thought so quickly and expressed his opinion so readily (he always delivered oral judgments) that his opinions lacked form. Lord Campbell, on appeal, once commented strongly on the “prodigious length” and slipshod style of his judgments. He was amiable and exceedingly religious. “The monotony of his character,” said Westbury, “was unrelieved by a single fault.”1
Sir John Romilly (1851-’73) presided over the Rolls Court during this period, when the work of the court was rapidly increasing. His numerous decisions display industry rather than breadth and grasp. His haste in disposing of cases led him sometimes to decide without sufficiently considering the principles involved and the precedents by which they were governed, and he was often reversed on appeal. Vice chancellors of various degrees of ability served during this period. Upon the promotion of Knight-Bruce in 1851, and of Turner in 1853, to the Court of Appeals in Chancery, and of Rolfe, in 1851 to the woolsack, the office was held during the next fifteen years by Kindersley (1851-’66), Stuart (1852-’71) and Page-Wood (1853-’68). Kindersley was a sound equity lawyer, whose decisions were seldom reversed. His opinions are, as a rule, based upon broad principles, and bear the impress of a superior mind. Stuart was the weakest of the later vice chancellors, and was generally reversed on appeal. A witty barrister once placed an appeal from his decision on the calendar of motions of course. Page-Wood was one of the most competent and satisfactory judges holding this office. It was as vice chancellor that he laid the basis of the reputation in equity which led to his appointment as chancellor. The principal vice chancellors in later times were Malins (1866-’81), and Bacon (1870-’86). Gifford (1868-’69) and James (1869-’70) spent a brief period in this court on their way to the Court of Appeal, and Hall (1873-’82) was not particularly distinguished. Malins, in spite of judicial peculiarities, was a competent equity lawyer, and the reports contain some excellent expositions by him of various branches of real property law. Bacon, the last of the vice chancellors, was a man of varied accomplishments, not the least of which was the literary skill which makes his opinions such entertaining reading.
Probate, Divorce and Admiralty Courts
The outcry against the ecclesiastical administration of probate and matrimonial affairs at length became too formidable to be resisted. The inefficiency of most of the judges, the variations of practice and procedure, the expense, the delay, the frequently inconsistent and mistaken views of law and of fact adopted by the different authorities, the anachronism of a system which permitted civil rights to be decided by judges neither appointed by nor responsible to the Crown, called loudly for reform. The humorous absurdity of many of the ancient abuses have been preserved in lasting caricature by Dickens in “David Copperfield.” The practical objection to the jurisdiction was that, in the absence of its power to bind the heir in relation to land, there might be a decision one way in the ecclesiastical courts as to personal property, and another at common law as to real estate, arising out of the same document. It seems incredible that such a state of affairs could have lasted for centuries.
With respect to matrimonial affairs the conditions were quite as unsatisfactory. The abuses of the procedure of the ecclesiastical courts had affected the trial of these causes to such an extent that redress was practically denied to persons of moderate means. To obtain an absolute divorce resort had to be made to Parliament, and the cost of carrying a bill through both Houses was practically prohibitive. Justice Maule brought out the incongruities of the law with characteristic irony in passing sentence in a bigamy case. “I will tell you,” he said, addressing the prisoner, “what you ought to have done under the circumstances, and if you say you did not know, I must tell you that the law conclusively presumes that you did. You should have instructed your attorney to bring an action against the seducer of your wife for damages. That would have cost you about £100. Having proceeded thus far, you should have employed a proctor and instituted a suit in the ecclesiastical courts for a divorce a mensa et thoro. That would have cost you £200 or £300 more. When you had obtained a divorce a mensa et thoro you had only to obtain a private act of Parliament for a divorce a vinculo matrimonii. This bill might possibly have been opposed in all its stages in both Houses of Parliament, and altogether these proceedings would have cost you £1,000. You will probably tell me that you never had a tenth of that sum, but that makes no difference. Sitting here as an English judge, it is my duty to tell you that this is not a country where there is one law for the rich and another for the poor. You will be imprisoned for one day.”
Finally, in 1857, this anomalous condition of affairs came to an end. The ecclesiastical courts were by statute divested of all power to entertain suits relating to probate of wills and grants of administration, to declare the validity of marriages, and pronounce divorces a mensa et thoro, and such jurisdiction was conferred upon a new court of common law, which was to sit in Westminster Hall in two divisions, called respectively the Court of Probate and the Court for Divorce and Matrimonial Causes. The success of the change depended largely upon the judge who should first exercise the new jurisdiction. Fortunately, Cresswell was transferred from the Common Pleas. He was a strong, able and experienced judge, and a man of the world, and justified every reasonable expectation. Under his guidance the procedure of the court was adapted to modern ideas, witnesses were examined viva voce in open court, a concise form of pleading was introduced, and parties could, upon application, have any disputed matter of fact tried by a jury. The reports of Swabey and Tristram, which contain his clear and concise opinions and charges to juries, are monuments of learning and common sense; and so skilfully, and with such foresight, were the modern foundations of this jurisdiction laid that his judgment is said to have been only once reversed.1 Wilde, an industrious and painstaking judge, who is best remembered by his subsequent title as a legal peer, Lord Penzance, succeeded Cresswell in 1863, and in turn gave way to Hannen in 1872, on the eve of the Judicature Act.
Lushington continued his distinguished labors in admiralty and ecclesiastical affairs until 1867, when he was succeeded by Phillimore (1867-83). Through his voluminous writings and his work on the bench, Phillimore attained great distinction. A new practice and a rapidly increasing volume of litigation gave rise to novel and intricate problems. His elaborate opinions are replete with historical knowledge, and are always luminously expressed. In 1875, under the Judicature Act, he became a member of the Probate, Divorce and Admiralty Division of the High Court.2
Court of Appeal in Chancery
The Court of Appeal in Chancery, which was established in 1851, was throughout its brief history one of the most satisfactory courts that ever administered English law. The original lords justices were Knight-Bruce (1851-66), and Rolfe (1851-52). Rolfe was soon made chancellor, and Turner (1853-67) succeeded him. The court for fifteen years consisted of Knight-Bruce and Turner—an ideal court, animated by profound knowledge of law, and marked aptitude in its successful application to new conditions. Turner was on all occasions courageous in expanding the remedial powers of the court to meet modern developments; and so anxious was Knight-Bruce to shake off the trammels of technical procedure when they interfered with what he conceived to be the justice of the case, that in some of his decisions as vice chancellor (generally overruled by Cottenham) he anticipated reforms which shortly followed. One of Knight-Bruce’s most prominent characteristics was his fastidious English; and a certain irrepressible humor pervaded his gravest judgments. So vigorous and original was his mind, so animated and epigrammatic his style, so constant his flow of humor, that his opinions are veritable oases in the dreary wastes of the chancery reports. These sentences are taken at random: “Men may be honest without being lawyers, and there are doings from which instinct without learning may make them recoil.” “Some breaches of good manners are breaches of law also.” “The decree in this case is a matter of course unless the court and the laws of this country are to be reconstructed with a view to this particular case.” See, also, his highly characteristic opinion in Thomas v. Roberts, where the father of a child had joined a new sect and had gone to live in “a sort of spiritual boarding-house,” to which, as a home for the child, Knight-Bruce said he would prefer a “camp of gypsies.”1 The contrast between Knight-Bruce and Turner in their habits of thought and modes of expression—the vivacity and dry humor of the one and the steadiness and gravity of the other—blended admirably in result.2
Several distinguished chancery lawyers sat in this court for brief periods. Cairns (1866-68) and Page-Wood (1868) were elevated to the woolsack, and Rolt (1868-69), Selwyn (1868-69) and Gifford (1869-70) died in office. During his brief service as lord justice, Cairns justified the expectations raised by his distinguished career at the bar. He began in this court the splendid service which, continued in a higher tribunal, placed him in the front rank of English judges. In 1870 the unity of the court was again restored under James (1870-81) and Mellish (1870-77). James was a most eminent judge, exceptionally learned, and gifted with rare power in the formulation of principles. Cairns said of him that he had a no less admirable share of common sense than of law. In quoting his own decisions he would humorously add, “which is an authority though I joined in it.” His comprehension of a case was rapid and masterly, and his memory marvelous. Bramwell said of him that “he possessed every quality and accomplishment that a judge needed. He had a very great intellect, at once keen and profound. He was a consummate lawyer, thoroughly imbued with legal principles. He was a man of vast experience, not merely in the law, but in those things which make a man what is commonly called a man of the world, fitted to deal with the affairs of the world. He had but one desire when he took his seat upon the bench, and that is, that justice should be done according to right. It was said of him, and truly, that he was rapid in the formation of his opinions and confident in the expression of them, and so he was, and so a man of his ability had a right to be; but I can say this of him, that a more candid man never lived, nor one more ready to renounce an opinion, though he had given expression to it in the most confident way, if he thought it was wrong.” His most substantial contributions to the law were in the domain of company, bankruptcy and patent law.1
Mellish was considered by many eminent judges the ablest advocate of his time before a court in banc. Lord Selborne said of him that “as an advocate he was distinguished above all other men whom I remember at the bar by the candor of his arguments and by the decision with which he threw aside everything which did not seem to him relevant to the case and deserving of serious consideration by the court which he was addressing.” Mellish belonged to the common law bar, but his mastery of the principles of jurisprudence and the judicial quality of his intellect qualified him to sit in any court. He came to the bench with an impaired constitution, which limited his work both in quality and in extent; but his subtle mind, stored with the learning of the common law, in combination with James’ profound knowledge of equity, made a most satisfactory court of appeal, and justified the subsequent establishment of a single court of appeal in law and equity.1
The House of Lords and the Privy Council
The ultimate reorganization of the House of Lords as an appellate tribunal owes much to Lord Westbury. As the leader of the chancery bar and a law officer of the government, it was his caustic wit that concentrated attention upon the defects of the existing system and overcame the inertia of public sentiment; and subsequently, as lord chancellor, it was he who brought to the discharge of his judicial functions the commanding ability which led the way to better things.2 It was finally determined to reinforce and infuse adequate ability in the House by the creation of life peers. The plan itself was admirable, but the elevation of Baron Parke as Lord Wensleydale, in pursuance of the plan, was not calculated to further liberal views. Wensleydale came to the House of Lords after his long domination in the common law courts—and, it may be added, just as his domination ceased. The Common Law Procedure Act seemed to him a desecration of the sacred system of special pleading, and led to his retirement from the Exchequer. The atmosphere of the House during his twelve years’ service was not congenial to his peculiar powers. Lord Campbell, whose unquestioned learning was his servant, not his master, combated here, as he had in the courts below, the narrow technicalities within which Wensleydale sought to confine the common law. Then the preponderance of equity lawyers, due to the rapid succession of chancellors, was little calculated to lend support to his general views. A far more accomplished lawyer was added to the court in 1858 in the person of Lord Kingsdown, after his brilliant services in the Privy Council. From the chancellorship of Westbury (1861-65) a new period may be said to begin. Himself one of the ablest lawyers who ever held the seals, Westbury had the assistance of four ex-chancellors and two legal peers. The chancery element now predominated, and the eminent ability of the succeeding chancellors, Cairns, Hatherley and Selborne, maintained this ascendancy for the remainder of the period. In 1867 the court was further strengthened by the addition of a distinguished Scotch lawyer, Lord Colonsay. In 1869 Sir James Wilde was also raised to the peerage as Lord Penzance. The court now, for the first time, gave satisfaction, particularly in equity. The reports of its decisions, as contained in the last volumes of Clark’s House of Lords Cases, the English and Irish Appeal Cases (1865-75), and the Scotch and Divorce Appeal Cases (1865-75) are of the first importance. They deal less with public and more with private cases, and the discussion of legal principles is much more scientific than any of the prior debates of the House.
In the Privy Council during this period Kingsdown received valuable assistance from Knight-Bruce, who was learned in foreign systems of jurisprudence, and from Turner, Penzance and Westbury. Peel and Colville had great weight in Indian appeals. By a statute of 34 and 35 Victoria, provision was made for the addition of four paid judges, in consequence of which the court was strengthened by the appointment of Peacock, Collier, Montague E. Smith and Byles. Byles’ service was unimportant, and Peacock confined his attention mainly to Indian appeals; but Collier and Smith were able and industrious judges. Collier took an important part in formulating the opinions of the court, and the work performed by Smith was both considerable in amount and of permanent value. These judges were assisted principally by Cairns and Penzance.
From the Judicature Acts of 1873-75 to the End of the Century
In his great speech introducing the Judicature Act of 1873, Lord Selborne enumerated the principal defects of the existing system under four heads: (1) The artificial separation of legal and equitable jurisdictions; (2) divided courts and divided jurisdictions; (3) lack of cheapness, simplicity and uniformity of procedure; (4) necessity of improving the constitution of the court of appeals. “We must bring together,” he said, “our many divided courts and divided jurisdictions by erecting or rather re-erecting—for after all there was in the beginning of our constitutional system one supreme Court of Judicature—a supreme court which, operating under convenient arrangements and with a sufficient number of judges, shall exercise one single undivided jurisdiction, and shall unite within itself all the jurisdictions of all the separate superior courts of law and equity now in existence.”1 Accordingly the Curia Regis of the Norman kings was taken as a model, and all the existing courts were consolidated into one Supreme Court of Judicature.2
This Supreme Court was divided into two sections, the High Court of Justice and the Court of Appeal. The High Court is a court of first instance, exercising general jurisdiction in civil and criminal matters. It consisted originally of five divisions, corresponding to the old courts, of which it was made up. But in 1881 the Common Pleas and Exchequer were finally abolished; and by subsequent legislation the Court of the Master of the Rolls was likewise abolished, and that judge was placed at the head of a division of the Court of Appeal. The court now sits in three divisions: King’s Bench, Chancery, and Probate, Divorce and Admiralty. The business assigned to each division corresponds to its ancient jurisdiction; but the changes effected by the Judicature Act are these: any judge may sit in any court belonging to any division, or may take the place of any other judge, and any relief which might be given by any of the courts whose jurisdiction is now vested in the supreme court may be given by any judge or division of the supreme court, and any ground of claim or defence which would have been recognized in any of the old courts may be recognized by any division of the new court. Where the rules of equity, common law and admiralty conflict, equity prevails in the absence of specific provisions. Besides this uniform administration of the principles of law and equity, the act also provided a common and simple code of procedure. The main characteristics of this procedure are similar to those which have long been familiar in this country: a single form of action for the protection of all primary rights, whether legal or equitable; a limited pleading characterized by a plain and concise statement of the substantive facts; provision for rejoinder of different causes of action and the bringing in of new parties, with a view to the adjustment of the substantial rights of all the parties and the complete determination of the whole controversy in a single action.
In some respects this great measure of reform has failed to meet the expectations of its supporters. In accordance with the original design, the chancery judges ceased to be vice-chancellors, and as justices of the High Court took turns with the judges of the Queen’s Bench in going on circuit to try common law cases. But the practice was soon abandoned, and the chancery judges now confine themselves to the administrative and other business for which they have special aptitude. Hence the dividing line between the two ancient jurisdictions is still observed. In other respects the original scheme of assimilation has broken down. Probate, divorce and admiralty matters still form a class by themselves; bankruptcy affairs have a court of their own, and separate courts sit for the trial of commercial and of railway and canal cases.
The High Court of Justice
The establishment of a permanent Court of Appeal under the Judicature Act has served to detract from the relative importance of the judges of the High Court. The presidents of the three great divisions are of course most conspicuous. The presiding judge of the Queen’s Bench Division is now the Lord Chief Justice of England. Lord Coleridge, the first chief to assume this title, succeeded Cockburn in 1880. Like Cockburn he was a man of ripe scholarship and polished eloquence, and as a presiding magistrate he left nothing to be desired in the way of dignity and urbanity. With an intellect quite as strong and with even broader views, he was nevertheless inferior to Cockburn in industry and application. He did not seem to enjoy wrestling with principles and authorities in the solution of difficult problems, and was content to contribute less to the law than colleagues not so gifted. Occasionally a case of general public interest roused him from his seeming indifference, and on such occasions his work was so admirable as to prompt a feeling of regret that he was not more assiduous in the exercise of his undoubted ability. The reports contain several such expositions of the law, animated by learning, exquisite diction, elevation of sentiment and liberality of thought. The interesting case of Reg. v. Dudley, 15 Cox Cr. Cas. 624, where the issue was whether shipwrecked persons were justified in taking the life of one of their number in order to save themselves from death by starvation, displays his powers at their best. His statement of the modern law relating to blasphemy, on the trial of Ramsey and Foote, 48 L. T. 733, is in every way a notable effort. With his ready wit and fluent tongue, Coleridge was perhaps at his best when sitting with a jury. In summing up a case he was always admirable.1
Russell, who succeeded Coleridge as chief justice in 1894, had been for many years the leader of the common law bar. Although not a profound lawyer, he was a man of great force, and displayed commendable energy in the furtherance of practical reforms in the procedure of his division. The institution of the new court for commercial causes was largely due to him. Like many of his predecessors he displayed great ability as a criminal judge. He enjoyed the distinction of being the first Roman Catholic to hold the office of chief justice since the Reformation.
The lord chancellor, the president of the Chancery Division, now practically confines his judicial labors to the House of Lords. The first president of the Probate, Divorce and Admiralty Division was Hannen. With his knowledge of the law relating to the various sections of his court, his painstaking industry, absolute impartiality and keen sense of the value of evidence, he won universal esteem. The spirit which animated his labors was displayed in his address at the conclusion of the hearing before the Parnell Commission, over which he presided. In speaking of the responsibility of the judges he said that one hope supported them: “Conscious that throughout this great inquest we have sought only the truth, we trust that we shall be guided to find it, and set it forth plainly in the sight of all men.” His opinions, which are more fully reasoned than those of Cresswell, are notable for their graceful diction and apt illustrations.1 Among the more prominent justices of the Queen’s Bench Division during this period were Hawkins2 and Stephen,3 whose specialty was criminal law, Mathew and Wright in commercial law, and Chitty and Kay in equity.
The Court of Appeal
The second section of the Supreme Court, the Court of Appeal, is composed of the Master of the Rolls and five Lords Justices, with the heads of the three great divisions of the High Court, the Lord Chancellor, the Lord Chief Justice and the President of the Probate, Divorce and Admiralty Divisions, as members ex officio. It exercises a general appellate jurisdiction in civil cases from the determinations of the High Court. It was originally planned to make this the final court of appeal, but the pressure from the House of Lords was too strong, and in the end the judicial functions of the House were left undisturbed; so that the Supreme Court is supreme only in name. The original conception of this court, as a single court in law and equity, was that the contact of minds trained in the different systems would subject the current ideas and tendencies of the rival systems to scrutiny, and thereby dispel confusion, explode inveterate fallacies, and give increased clearness and force to principles of permanent value. But here, as in the court of first instance, this expectation has not been realized. The Court of Appeal now sits in two divisions, chancery appeals being allotted to one division, common law appeals to the other; and it usually happens that chancery appeals are heard by chancery lawyers and common law appeals by lawyers trained in the common law. Nevertheless, this court has given general satisfaction. It is, indeed, as one of its most distinguished members called it, the backbone of the judicial system.
The principal judges of the first decade of the court, during the service of Sir George Jessel as master of the rolls (1873-83), were James (to 1881), Baggallay (1875-85), Bramwell (1876-81), Brett (1876-97), and Cotton (1877-90).
Jessel’s short service of less than ten years sufficed to give him a place in the narrow circle of great judges. Other judges have been more subtle in intellect, but in swiftness and sureness of apprehension, in grasp of facts, tenacity of memory and healthy superiority to mere precedent, he presented a combination of qualities not to be found to the same degree in any other judge of his time. His quickness of perception amounted almost to intuition. His learning was profound; yet he was no mere follower of precedent, no mere directory of cases. He was able to take up the confused mass of the law and mould it to the ends of justice. No matter what the subject under discussion was—and no branch of the law seemed unfamiliar to him—he was alike clear, practical and profound. Such achievements are possible only to a man gifted with the swiftest apprehension and the most ample and tenacious memory. It was these faculties which enabled him to deal with such extraordinary sagacity with facts, however numerous and complicated, and to deliver occasionally those judgments in which the statement of facts gives at once the reasoning and the conclusion. The excellence of his judicial opinions becomes truly marvelous when we are assured that he never reserved judgment, except in deference to the wishes of a colleague, and that he never read a written opinion. A remarkable feat of this kind was his decision in the great Epping Forest case, concerning the ancient rights of twenty manors. The hearing lasted twenty-two days, one hundred and fifty witnesses having been examined. Jessel delivered judgment orally immediately upon conclusion of the evidence, and no appeal was taken from his decision, although the largest forest in the vicinity of London was thereby thrown open to the public. “I may be wrong,” he once said, “and doubtless I sometimes am; but I never have any doubts.”
Apart from the soundness of his conclusions, his opinions are always expressed with vigorous and pungent emphasis. His work is conspicuous for the spirit in which he approached his cases. “There is a mass of real property law,” he frankly told a friend, “which is nonsense. Look at things as they are and think for yourself.” This he certainly did. No judge has ever been plainer in denunciation of ancient technicalities. In Couldrey v. Bartrum, 19 Ch. D. 394, he said: “According to the English law a creditor might accept anything in satisfaction of a debt except a less amount of money. He might take a horse or a canary or a tomtit if he chose, and that was accord and satisfaction; but by a most extraordinary peculiarity of the English law he could not take 19s. 6d. in the pound. That was one of the mysteries of the English common law, and as every debtor had not on hand a stock of canary birds or tomtits or rubbish of that kind it was felt desirable to bind the creditors,” etc. Of authorities which conflicted with his views of equity he was not always as tolerant as he was in the case of Jackson’s Will, 13 Ch. D. 189, where, in speaking of the question whether a reversionary interest in personality should be excluded from a gift of “any estate or interest whatever,” he said: “I see no reason whatever why it should; but not wishing to speak disrespectfully of some of the decisions I shall say nothing further about it.” In Re National Funds Assurance Co., 11 Ch. D. 118, he began his opinion thus: “This question is one of great difficulty by reason of the authorities, and my decision may possibly not be reconcilable with one or more of them. In the view which I take of them I think they do not, when fairly considered, prevent my arriving at the conclusion at which I should have arrived had there been no authorities at all.” He was equally unceremonious in dealing with the opinions of his colleagues. In referring, in Re Hallett’s Estate, 13 Ch. D. 676, to a decision by Mr. Justice Fry, where that learned judge had felt himself “bound by a long line of authorities,” Jessel said: “That being so, I feel bound to examine his supposed long line of authorities, which are not very numerous, and show that not one of them lends any support whatever to the doctrine or principle which he thinks is established by them.” At all events he was no respecter of persons. In Johnson v. Crook, 12 Ch. D. 439, he took a view contrary to most of the other equity judges, and despatched them in order. After quoting from Vice-Chancellor Wood he says: “All I can say about it is that it was simply a mistake of the Vice-Chancellor, and that is how I shall treat it.” Then, quoting from Lord Chelmsford’s opinion, he adds: “I am no Œdipus; I do not understand the passage.” Further on he remarks: “Lord Selborne says, ‘Lord Thurlow said’ so and so. There is a very good answer to that—he did not say so.” “What is the proper use of authorities?” he inquire in Re Hallett’s Estate, 13 Ch. D. 676. He declares it to be “the establishment of some principle which the judge can follow out in deciding the case before him.” Jessel had a convenient application of this rule by means of which even the decision of a higher court was not binding unless it decided a principle which he recognized as such. In Re International Pulp Co., 6 Ch. D. 556, where he was pressed with the authority of two cases previously decided by a higher court, he said: “I will not attempt to distinguish this case from the cases before the Court of Appeal, but I will say that I do not consider them as absolutely binding upon me in the present instance, and for this reason, that as I do not know the principle upon which the Court of Appeal founded their decision I cannot tell whether I ought to follow them or not. If these decisions do lay down any principle I am bound by it; but I have not the remotest notion what that principle is. Not being at liberty to guess what the principle of those decisions is, I am only bound to follow them in a precisely similar case; consequently, as the legal decisions do not stand in my way, I dismiss the summons with costs.”
It is remarkable that so strong and positive a mind should have gone wrong so seldom. In the few cases in which he was reversed his errors came from his keen sense of justice and impatience with the law’s delays.1 His complacency was never disturbed by reversals. “That is strange,” he said when his attention was called to the fact that the Court of Appeal had reversed one of his decisions; “when I sit with them they always agree with me.” Jessel’s mental fibre was so strong that it was coarse grained. He lacked the cultivated imagination of such men as Cairns, whom, alone of his contemporaries, he conceded to be his superior, and second only to Hardwicke. In the rank of supremacy in the long line of chancery judges he modestly placed himself third.2
Bramwell had few of those subtle and impressives attributes which go toward the make-up of a great judge of appeal. It would be idle to compare him as such with such contemporaries as Cairns, Selborne or Bowen. But his sturdy common sense was an invaluable influence for good among associates differently constituted. In the Court of Appeal, sitting with Brett and Mellish, he supplemented the impetuosity of the former and the somewhat academic narrowness of the latter. Sitting in equity with Jessel and James he was not so much in his element. On one occasion, in following the chancery judges in giving opinion in an equity case, he said: “Having listened all day to things which I don’t think I ever heard of before, I can safely say I am of the same opinion and for the same reasons.” His pronounced views upon the desirability of holding people to their bargains prompted little sympathy with certain equitable doctrines. Cotton, through a longer term of service, made a very respectable reputation. He brought to the discharge of his judicial duties the clearness of thought and thorough preparation which had characterized his vast labors as an equity lawyer, and, notwithstanding a certain want of facility in expression, his numerous opinions (for he was rarely satisfied with mere acquiescence) will repay careful study.1 Upon the death of Jessel in 1883 he became more prominent as the presiding judge of the chancery division of the court.
When Brett (better known by his subsequent title, Lord Esher) was made one of the first judges of the Court of Appeal he had already served an apprenticeship of eight years as a judge of the Court of Common Pleas. Being further promoted to the post of master of the rolls in 1883, he served until 1897, thus completing a continuous service of thirty years. Unfortunately for his reputation, he clung to office so long after age had impaired his usefulness that he was often spoken of by his contemporaries with reproach. But no one who has examined with any care the total result of his long service will be apt to overlook its value. That he was a learned lawyer, particularly in the domain of commercial law, cannot be gainsaid; shortly after his accession to the bench we find the learned Willes adopting and commending the opinion of his young associate.2 Still, it was rather as an invigorating influence that his services were of most value. He resembled Bramwell in an ingrained aptitude for logic, and often displayed a tendency to reach beyond established authorities and the particular facts of individual cases for broad principles and logical symmetry. It must be confessed, also that he sometimes went to the other extreme in his desire to do full justice in particular cases. “The law of England,” he once said, “is not a science. It is the practical application of the rule of right and wrong to the particular case before the court, and the canon of law is that that rule should be adopted and applied to the case which people of honor, candor and fairness in the position of the two parties would apply in respect of the matter in hand.” In the pursuit of this laudable end he occasionally seemed to overlook the necessity for fixed principles. He was independent to a fault, and frequently differed from his colleagues. When a precedent stood in his way he did not hesitate to pass it by. “There is no such thing in law,” he said, “as a rule which says that the court shall determine that to be true which the court believes and knows to be untrue.” All his learning and experience had been in common law, and, like most of his colleagues, he was not above an occasional sneer at equity. But in the practical administration of justice as a judge of appeal he was, perhaps, next to Bowen, the common law judge who displayed least bigotry in favor of common law technicalities as opposed to equity. However little his style may be admired, his opinions are, in substance, invariably interesting and suggestive.1
Under the service of Esher as master of the rolls his principal associates were Lindley (1881-99) and Fry (1883-92) in equity, and Bowen (1882-94) and A. L. Smith (1892-1900) in common law.
After a laborious career at the chancery bar Lord Lindley spent six years as a judge in the Court of Common Pleas, and thus came to the Court of Appeal thoroughly equipped. Had other judges been equally well trained, Lord Selborne’s original scheme for the consolidation of law and equity might have been realized. As it happened, Lindley found his sphere of usefulness in the chancery division of the Court of Appeal, where for twenty years his accurate and methodical mind set a high standard of efficiency for his associates. As a specialist he completely mastered the law relating to companies and to partnership. His opinions are logical, comprehensive and convincing, and the only criticism that the most captious could make is that when any of his brethren dissent he is apt to wander off in all the by-paths of the subject in his evident desire to fortify his conclusion.1 Lord Justice Fry was one of the greatest technical masters of modern equity, and contributed materially to the high standing of the court.1
Laymen have seldom found the law reports entertaining reading. Lord Bowen is probably the only judge in recent times whose work has commanded general interest. The reason is not far to seek. Besides grasp of principle, breadth of view and cogent reasoning, the style is so lucid, the illustrative matter so aptly chosen, the analogies so dexterously handled, the whole fabric of the exposition so admirably articulated, that he may be said to have combined, to an extent unsurpassed in English law, legal learning and literary form. He had a refreshing conception of intellectual reserve, a fine sense of proportion and wholesome mental habits of discrimination; and he expounded the historical evolution of legal principles in a style so pure, accurate and distinguished that it appeals to all persons of cultivated taste. In comparison with contemporaries who were his peers in intellectual power, he may be said to have shared with Westbury, Cairns and Selborne a precision of thought and logical faculty which rendered his mind capable at once of entertaining the broadest views and the most subtle distinctions. But he lacked their versatility. He was perhaps the equal of Blackburn and Jessel in legal learning, without the pedantry of one or the dogmatism of the other. But he fell short of them in energy. In affinity and contrast Cairns probably furnishes the best comparison. Cairns has never been surpassed in intuitive insight in legal principles; his judgments are illuminations rather than ratiocinations. Bowen shows us the process by which he arrives at a conclusion; we may observe the penetration and precision of a severely logical mind. Cairns was a genius; Bowen was a scholar.
The most obvious characteristic of Bowen’s opinions is purity, ease and accuracy of style. Along with legal acquirements which he shared with many of his judicial contemporaries, he had what is rare in such minds, a keen sense of literary form—“an instinctive preference for the right way of saying a thing, and the literary conscientiousness which impelled him to seek for the best expression of his thoughts.” In distinction of style his only equal among contemporary writers on legal subjects was Sir Henry Sumner Maine; he had no rival on the bench. One may find in his work aphorisms and lucid definitions which crystallize a principle in a phrase. Such, for instance, is his remark in a case of deceit that “the state of a man’s mind is as much a fact as the state of his digestion;” and his statement that a person’s knowledge of danger is the “vanishing point” of the liability of the occupier of premises. But the power of expressing the most subtle shades of thought which made Westbury, for instance, such a source of legal maxims, manifested itself in Bowen’s work rather in the production of a total effect or artistic whole. He had great skill in graphic illustration. Witness his forcible illustration in the Mogul Steamship case of the expedient by merchants of sowing one year a crop of unfruitful prices in order, by drawing away competition, to reap a fuller harvest of profits in the future; and his query in the same case whether it would be an indictable conspiracy to drink all the water from a common spring in time of drought. Among other instances are his illustration in Hutton v. Railway Company1 of sending all the porters at a railway station to have tea in the country at the company’s expense; his success in laying bare the issue in Thomas v. Quartermaine2 by reference to a builder employed to make repairs; his query in the Carbolic Smoke Ball case3 whether everybody who sought to find a dog for a reward must sit down and write a note to the owner accepting the proposal; his illustration in the Queensland Bank case4 of being waylaid in Pall Mall; and his reference in Saunders v. Weil5 to the Apostles’ spoons.
The law, to Lord Bowen, was not a mere collection of rules. “There is no magic at all in formalities,” he said. He recognized, to use his own language, the duty of endeavoring to apply legal doctrines so as to meet “the broadening wants or requirements of a growing country, and the gradual illumination of the public conscience.” In the course of a bold application of an established principle he said: “It is not a valid objection to a legal doctrine that it will not be always easy to know whether the doctrine is to be applied in a particular case. The law has to face such embarrassments. . . . The instance to which the legal principle is now for the first time adopted by this court may be new, but the principle is old and sound; and the English law is expansive, and will apply old principles, if need requires it, to new contingencies. Just as, in America, the law of watercourses and of waste has modified itself to suit the circumstances of enormous rivers and wide tracts of uncultivated forests, so the English law accommodates itself to new forms of labor and new necessities of [arbor] culture.” Dashwood v. Magniac, (1891) 3 Ch. 306. Therefore, in applying, in a leading modern case, the ancient rule as to contracts in restraint of trade, he said:
“A covenant in restraint made by such a person as the defendant with a company he really assists in creating to take over his trade, differs widely from the covenant made in the days of Queen Elizabeth by the traders and merchants of the then English towns and country places. When we turn from the homely usages out of which the doctrine of Mitchell v. Reynolds, 1 P. Wms. 181, sprang, to the central trade of the few great undertakings which supply war material to the executives of the world, we appear to pass to a different atmosphere from that of Mitchell v. Reynolds. To apply to such transactions at the present time the rule that was invented centuries ago in order to discourage the oppression of English traders and to prevent monopolies in this country, seems to be the bringing into play of an old-fashioned instrument. In regard, indeed, of all industry, a great change has taken place in England. Railways and steamships, postal communication, telegraphs and advertisements have centralized business and altered the entire aspect of local restraints on trade. The rules, however, still exist, and it is desirable that they should be understood to remain in force. Great care is evidently necessary not to force them upon transactions which, if the meaning of the rule is to be observed, ought really to be exceptions.” Maxim-Nordenfelt Co. v. Nordenfelt, (1893) 1 Ch. 631.
Bowen vitalized and enforced his exposition of legal principles by reference to history. “The only reasonable and the only satisfactory way of dealing with English law,” he once said, “is to bring to bear upon it the historical method. Mere legal terminology may seem a dead thing. Mix history with it and it clothes itself with life.” In his brilliant application of this method he avoided many of the errors which have resulted from the attempt to give a rational or scientific basis to doctrines which owe their origin to historical accidents. A brief quotation from his opinion in a nisi prius action for illegal distraint, in which it was claimed that the landlord had broken an outer door, will illustrate his use of the historical method: “The doctrine of the inviolability of the outer doors of a house and its precinct has long been established by English law. The principle is one which carries us back in imagination to wilder times, when the outer door of a house, or the outer gates and enclosures of land, were an essential protection, not merely against fraud, but violence. The proposition that a man’s house is his castle, which was crystallized into a maxim by the judgment in Semayne’s case, and by Lord Coke, dates back to days far earlier still, when it was recognized as a limitation imposed by law on all process except that which was pursued at the King’s suit and in his name. A landlord’s right to distrain for arrears of rent is itself only a survival of one among a multitude of distraints which, both in England and other countries, belonged to a primitive period when legal procedure still retained some of the germs of a semi-barbarous custom of reprisals, of which instances abound in the early English books, and in the Irish Senchus Mor. Later, all creditors and all aggrieved persons who respected the King’s peace, the sheriff in a civil suit and the landlord in pursuit of his private remedy for rent and services, were both of them held at bay by a bolted door or barred gate. To break open either was to deprive the owner of protection against the outer world for his family, his goods and furniture and his cattle.” American Must Corp. v. Hendry, 62 L. J., Q. B. 389.
His subtle intellect could not have made him the great judge that he was had it not been balanced by good sense. He was continually using the terms common law and common sense as equivalents; he likened the common law to an “arsenal of sound common sense principles.” A multitude of illustrations could be given. One will suffice. In speaking of the standard to be used in weighing the evidence as to whether a certain hospital was an “annoyance” to neighboring inhabitants, he said: “ ‘Annoyance’ is a wider term than nuisance, and if you find a thing which really troubles the mind and pleasure, not of a fanciful person or of a skilled person who knows the truth, but of the ordinary sensible English inhabitant of a house,—if you find there is anything which disturbs his reasonable peace of mind, that seems to me to be an annoyance, although it may not appear to amount to physical detriment or discomfort. You must take sensible people; you must not take fanciful people on the one side or skilled people on the other; and that is the key as it seems to me of this case. Doctors may be able to say, and, for anything I know, to say with certainty, that there is no sort of danger from this hospital to the surrounding neighborhood. But the fact that some doctors think there is, makes it evident at all events that it is not a very unreasonable thing for persons of ordinary apprehension to be troubled in their minds about it. And if it is not an unreasonable thing for any ordinary person who lives in the neighborhood to be troubled in his mind by the apprehension of such risk, it seems to me that there is danger of annoyance, though there may not be a nuisance.” Tod-Heatly v. Benham, 40 Ch. D. 611. No better illustration of the triumph of reason and common sense over technicalities can be found in the reports than Bowen’s judgment in Ratcliffe v. Evans, (1892) 2 Q. B. 529.
The Maxim-Nordenfelt case and the Mogul Steamship case are probably his greatest efforts, illustrating as they do all his peculiar powers. For a brief example of clear exposition reference may be made to the case of Smith v. Land & House Property Corporation, 28 Ch. D. 14, where the vendee under a contract for the sale of certain property resisted an action for specific performance on the ground of misrepresentation, the vendor having stated that the property was let to “a most desirable tenant,” when in fact the tenant had been in arrears on his last quarter’s rent, and soon afterward went into liquidation: “It is material to observe that it is often fallaciously assumed that a statement of opinion cannot involve the statement of a fact. In a case where the facts are equally well known to both parties, what one of them says to another is frequently nothing but an expression of opinion. The statement of such opinion is in a sense a statement of a fact about the condition of a man’s own mind, but only of an irrelevant fact, for it is of no consequence what the opinion is. But if the facts are not equally well known to both sides, then a statement of opinion by the one who knows the facts best involves very often a statement of a material fact, for he impliedly states that he knows facts which justify his opinion. Now a landlord knows the property is let to a most desirable tenant; other persons either do not know them at all or do not know them equally well, and if the landlord says that he considers that the relations between himself and his tenant are satisfactory, he really avers that the facts peculiarly within his knowledge are such as to render that opinion reasonable. Now are the statements here statements which involve such a representation of material facts? They are statements on a subject as to which prima facie the vendors know everything and the purchasers nothing. The vendors state that the property is let to a most desirable tenant; what does that mean? I agree that it is not a guaranty that the tenant will go on paying his rent, but it is to my mind a guaranty of a different sort, and amounts at least to an assertion that nothing has occurred in the relations between the landlord and the tenant which can be considered to make the tenant an unsatisfactory one. That is an assertion of a specific fact. Was it a true assertion? Having regard to what took place between Lady Day and Mid-summer, I think it was not. . . . In my opinion a tenant who had paid the last quarter’s rent by driblets under pressure must be regarded as an undesirable tenant.”
His subtlety in legal analysis may be seen to good advantage in Le Lievre v. Gould and Angus v. Clifford. What could be clearer, to give a single quotation, than his statement in Badeley v. Consolidated Bank, 38 Ch. D. 262, of the manner in which the lower court had gone wrong on an issue of partnership: “The question is whether there is a joint business or whether the parties are carrying on business as principals and agents for each other. Now where has Mr. Justice Stirling gone wrong? He has gone wrong because he has not followed that test. What he has done is this. He has taken one of the circumstances which in many cases affords an ample guide to truth; he has taken that circumstance as if, taken alone, it shifted the onus of proof—as if it raised a presumption of partnership—and then he has looked about over the rest of the contract to see if he could find anything which rebutted that presumption. Now that cannot be a right way of dealing with the case. You have a group of facts—A, B, C, D, E and F—and you want to know the right conclusion to draw from them. The right way is to weigh the facts separately and together, and to draw your conclusion. It is not to take A, and say that if A stood alone it would shift the onus of proof, and then to look over B, C, D, E and F and see if the remainder of the proof is sufficient to rebut the presumption supposed to be raised.”
Besides the Maxim-Nordenfelt case, see Finlay v. Chirney, Dashwood v. Magniac, Steinman v. Angier Line and Brunsden v. Humphrey, for applications of the historical method. Allcard v. Skinner is one of the finest specimens of his style at its best. Borthwick v. Evening Post, Hutton v. West Cork Ry. Co., and the Carbolic Smoke Ball case are characteristic specimens of his colloquial style. Whatever the form of the argument may be—whether pure development of principle without the citation of a single authority (Allcard v. Skinner), or elaborate analysis and review of a mass of conflicting cases (Phillips v. Homfray, Mitchell v. Darley Main Colliery Co.); a perfect example of systematic logic (Ratcliffe v. Evans, Quartz Hill Gold Mining Co. v. Eyre), or a series of detailed answers to specific points urged in argument (Carlill v. Carbolic Smoke Ball Co.); statutory construction (Hewlett v. Allen, Thomas v. Quartermaine), or argument on the facts (Medawar v. Grand Hotel Co., Abrath v. Northeastern Ry. Co.)—we invariably find the same characteristic precision, sense of proportion, force and completeness of logic. Whatever the form, the result was well described by him in the course of his opinion in Re Portuguese, etc., Mines, 45 Ch. D. 60: “As soon as one applies one’s mind to dissect the ingenious argument, the light breaks through and makes the case perfectly plain.”1
The House of Lords
The membership of the House of Lords as a judicial tribunal is confined by the Judicature Act to Lords of Appeal, i. e., the Lord Chancellor of Great Britain, Lords of Appeal in Ordinary (limited to four), and peers who have held high judicial office. High judicial office means the office of Lord Chancellor of Great Britain or Ireland, of a paid judge of the Judicial Committee of the Privy Council, or of a judge of one of the superior courts of Great Britain or Ireland. As a judicial tribunal the House reached its highest usefulness under the Judicature Act. With a membership defined by statute, with a reasonable assurance of regular attendance (brought about by relieving the lord chancellor from his ancient duties as a judge of first instance), with the appointment of paid judges as lords in ordinary, and the elevation to the peerage of several eminent and experienced judges, the composition of the court has given much satisfaction. In sheer ability, with Cairns, Selborne and Hatherley in equity, and Blackburn, Bramwell, Watson and Herschell in common law, no other English court has ever equalled it. During this period there have been only four chancellors. Cairns, Selborne, Herschell and Halsbury. Cairns lived until 1885, Selborne and Herschell almost to the end of the century. The most distinguished English lords have been Blackburn, Bramwell, Penzance, Field, Macnaghten1 and Davey. Untimely death deprived the court of the services of two of its most promising members, Hannen and Bowen. Watson was the ablest of the Scotchmen, the others being Gordon and Shand. O’Hagan ranks at the head of the Irish representation, which includes Fitzgerald, Ashbourne and Morris.
In his obituary eulogy on Lord Selborne in the House of Lords, Lord Rosebery felicitously compared Selborne with those great ecclesiastics by whom equity was originally administered. “There was something in his austere simplicity of manner which recalled those great lawyers of the middle ages who were also churchmen, for to me Selborne always embodied that great conception and that great combination.” Selborne (1872-74; 1880-85) was not only, like Cairns, an ardent churchman; he had also something of the ecclesiastical cast of mind and impassive manner. But he had, above all, that intuitive insight into legal principles and power of grasping and expounding facts which are certain tests of legal genius. With intellectual gifts of the highest order he combined habits of patient industry, without which intuitions are deceitful and gifts of exposition vain. The terms in which a contemporary observer described his characteristics at the bar, bring out clearly the qualities upon which his success was founded. “At this time there were three great advocates before all others, Bethel [Lord Westbury], Palmer [Lord Selborne], Cairns. Each of them had his own points of superiority, though each was very good at all points. Cairns excelled in strong common sense and broad, lucid arrangement of facts; Bethel in force of exposition and direct attack on his opponent, whether counsel or judge; Palmer in power of work, in knowledge of his briefs, in ready memory and vast resources of case law, in subtlety and great skill in addressing himself to unforeseen emergencies. He could perform the most difficult operations of strategy, changing front in the face of the enemy. It was an admirable sight to see him turning the flank of a hostile position taken up by the court, such as Bethel would have attacked in front; rounding off an angle here, attenuating a difference there; bringing some previously neglected portion of the case into relief, relegating others to the background, and so restoring the battle. What gave Palmer the superiority in these movements (apart from the great versatility and adaptability of his mind and his complete command of temper) was above all his perfectly accurate and ready knowledge of every detail of his case.”
His marked characteristic as a judge was his profound knowledge of case law and his masterly dealing with it. In this respect he has seldom been surpassed. It was his habit to extract the ruling principle of prior decisions, and then to trace the development of the branch of law under discussion.1 From his conservative regard for precedent he was essentially a sound judge. He was inferior to Cairns in terseness, clearness and force because he indulged himself in his remarkable gift of subtlety. Beyond certain limits subtlety ceases to be desirable in the exposition of practical rules of human conduct. While many of his opinions are masterpieces of luminous reasoning, he had too often a habit of pursuing a fine train of reasoning on a matter collateral to the main issue. This undue prominence of matters of minor importance and trains of reasoning running off into collateral matters, explain the absence of proportion which characterizes some of his work. But his statements of legal propositions are carefully worded with a far seeing regard for the future, and few hasty dicta are to be found in his opinions.
Although he was great in council and dextrous in debate, he did not display in political life the marvelous adaptability which was so conspicuous in Cairns. In some respects he would seem to have been better equipped for public life than his great rival. He had larger and more genial sympathies, and his flowing and diffuse style was more apt to impress the public mind than the highly concentrated manner of Cairns. But his ecclesiastical subtlety again hampered his influence. And he was prone to rely upon considerations too purely moral and speculative to exert any considerable influence on public opinion. Hence the arguments by which he attempted to support a conclusion were often far more conspicuously vulnerable and far more offensive to his adversaries than the conclusion itself. As a law reformer alone Selborne takes a high rank. The reforms inspired by Brougham in 1832 had been followed at fitful intervals by the successive acts which, from 1847 onward, under the guidance of Cranworth, Westbury and Cairns, had eradicated most of the perversities of ancient procedure. But the most radical and comprehensive legal reform of the century was accomplished by Selborne in the passage of the Judicature Acts.1
When Blackburn (1876-87) was appointed one of the first lords of appeal in ordinary under the Judicature Act it afforded satisfactory evidence to the profession that a new era in the court of final appeal had in reality begun. Blackburn had given abundant evidence of his complete mastery of the common law, and he soon showed that his grasp of Scotch and colonial and ecclesiastical law was no less strong. In chancery appeals he did not hesitate to express independent views, but he was naturally overshadowed by the authority of Cairns and Selborne. In common law appeals his pre-eminence was undisputed. It was not until the last year or two of Blackburn’s service that Watson began to take a prominent part in English appeals, and the sturdy Bramwell did not become a member of the court until 1882.
Lord Watson (1880-99), the ablest judge contributed by Scotland to the House of Lords, was one of the most remarkable judicial characters of his time. In the domain of Scots law, to which his predecessors had mainly confined their attention, he displayed at the outset his eminent qualifications for judicial office. But Watson was not content to play a minor part. He proceeded to study English law; and, as his confidence in his knowledge increased, the modest expression of opinion with which he had been content in his earlier cases, gave way, shortly before Blackburn’s retirement, to those masterly expositions of English law for which, after the death of Herschell, he was unsurpassed by any of his associates. It is only necessary to mention in support of this statement such cases as Smith v. Baker, Allen v. Flood, Clarke v. Carfin Coal Company, Solomon v. Solomon, Macdonald v. Whitfield, Nordenfelt v. Maxim-Nordenfelt, and Mogul Steamship Co. v. McGregor. His long and splendid service in the Judicial Committee of the Privy Council would alone place him in the front rank of modern judges. His opinions in Le Mesurier v. Le Mesurier and Abdul Messih v. Fassa, on the intricate subject of domicile, to cite only two examples, are as luminous as they are exhaustive. In ecclesiastical appeals, also, Presbyterian though he was, he took a prominent part.
His knowledge of English case law was, under the circumstances, extraordinary; yet it can hardly be said to have exceeded his grasp of principle and certainty of judgment. Witness his sensible and suggestive reflections in refusing to adhere to a strict observance of the old doctrine with respect to restraint of trade: “A series of decisions based upon grounds of public policy, however eminent the judges by whom they were delivered, cannot possess the same binding authority as decisions which deal with and formulate principles which are purely legal. The course of policy pursued by any country in relation to and for promoting the interests of its commerce must, as time advances, and as its commerce thrives, undergo change and development from various causes which are altogether independent of the action of its courts. In England, at least, it is beyond the jurisdiction of her tribunals to mould and stereotype national policy. Their function when a case like the present is brought before them is, in my opinion, not necessarily to accept what was held to have been the rule of policy a hundred or a hundred and fifty years ago, but to ascertain, with as near an approach to accuracy as circumstances permit, what is the rule of policy for the then present time. When that rule has been ascertained it becomes their duty to refuse to give effect to a private contract which violates the rule and would, if judicially enforced, prove injurious to the community.” Nordenfelt v. Maxim-Nordenfelt, (1894) A. C. 514.
To literary form and refinement of style Watson appears to have been wholly indifferent. Clear, direct and compact in expression, his opinions are nevertheless not without charm from simplicity of diction and the occasional use of the quaint legal phraseology of his native land. Probably the best expression of this is his interesting opinion in the matrimonial case of Mackenzie v. Mackenzie, (1895) A. C. 384. “There can be hardly a more odious form of cruelty,” he says in one place, “than a deliberate attempt to wound the feelings of a mother through her affection for her infant child. It is nevertheless true that the law of Scotland permits a married man to gratify his taste for that species of cruelty, subject to these conditions, that it must be practiced upon his own wife, and that he must stop short of injuring her health of mind or body or of rendering her existence intolerable. How far he can carry his experiments without exceeding the limits so prescribed, and thereby becoming guilty of legal saevitia, must depend very much upon the circumstances of the case, and, in particular, upon the victim’s capacity of endurance.”1
In the House of Lords Bramwell (1882-92) exerted, in the main, the same general influence for good that characterized his earlier judicial service. Perhaps his unconventionality was even more conspicuous in his new surroundings. Although he was to some extent overshadowed by the commanding authority of Blackburn, he was sturdily independent in his views. And even when wrong—for he was often in the minority—he used his mother-tongue with the same directness and dry humor. At a very advanced age he showed no decay in mental power; his strong opinion in the Vagliano case was delivered in his eighty-second year. But it is observable that his personal views on certain topics which had not commanded judicial assent became in later years more pronounced and extreme.
Lord Herschell’s conspicuous judicial service in the House of Lords (1886-99) entitles him to a place among the great judges of the last quarter of the century. If he fell short of Cairns’ breadth of mind and lacked Selborne’s subtlety, he had, nevertheless, in large measure, the qualities which make for judicial excellence. His most prominent characteristics were indefatigable industry, thoroughness and accuracy. Not even Selborne more completely exhausted a subject than Herschell did in such leading cases as Derry v. Peek, Bank of England v. Vagliano, Allen v. Flood, London Joint Stock Bank v. Simmons, British South Africa Co. v. Mozambique, Russell v. Russell, Trego v. Hunt, and the Maxim-Nordenfelt case. In his zeal to leave no consideration unnoticed, he sometimes seems to wander around the issue, instead of aiming directly at it, as Cairns did. But this fault is confined mostly to his earlier opinions; his work improved steadily in structure and finish, and his best efforts are among the highest models of judicial exposition. He was a man of broad views. The basis of his very able opinion in the great case of Allen v. Flood, (1808) A. C. 1, is an illustration: “I do not doubt that every one has a right to pursue his trade or employment without ‘molestation’ or ‘obstruction,’ if those terms are used to imply some act in itself wrongful. This is only a branch of a much wider proposition, namely, that every one has a right to do any lawful act he pleases without molestation or obstruction. If it be intended to assert that an act not otherwise wrongful always becomes so if it interferes with another’s trade or employment, and needs to be excused or justified, I say that such a proposition in my opinion has no solid foundation in reason to rest upon. A man’s right not to work or not to pursue a particular trade or calling, or to determine when or where or with whom he will work, is in law a right of precisely the same nature, and entitled to just the same protection, as a man’s right to trade or work. They are but examples of that wider right of which I have already spoken. That wider right embraces also the right of free speech. A man has a right to say what he pleases, to induce, to advise, to exhort, to command, provided he does not slander or deceive or commit any other of the wrongs known to the law of which speech may be the medium. Unless he is thus shown to have abused this right, why is he to be called upon to excuse or justify himself because his words may interfere with some one else in his calling?”
Herschell believed that it was a judge’s duty to interpret and administer the law, not to make it. He was sturdily averse to the process of refinement by means of which particular cases were withdrawn from the application of general rules. A characteristic illustration may be found in his opinion in the celebrated case of Russell v. Russell, (1897) A. C. 460, where it was sought to extend the legal doctrine with respect to cruelty in matrimonial relations so as to cover the facts of a particular case. “The only criterion of cruelty which I have heard suggested as warranting a judgment for the appellant, is whether the discharge of the duties of married life has become impossible owing to the conduct of the respondent. How is the word ‘impossible’ to be interpreted in the proposition thus stated? . . . If it be extended to what is sometimes called ‘moral’ impossibility, a proposition could scarcely be conceived more elastic. It would afford no sort of guide, but would, in my opinion, unsettle the law and throw it into hopeless confusion. Views as to what is possible in this sense would differ most widely. . . . Not a few would think that the discharge of the duties of married life was impossible whenever love had been replaced by hatred, when insulting and galling language was constantly used, when, in short, the ordinary marital relation no longer prevailed. One opinion may be held by many that it would be well that in all such cases a judicial separation should be granted—that relief should always be given where the prospect of happiness so long as the parties cohabited appeared hopeless. But these are considerations for the legislature, not for the courts. . . . Our duty, on the present occasion, is to administer, not to make the law. I have no inclination towards a blind adherence to precedents. I am conscious that the law must be moulded by adapting it on established principles to the changing conditions which social development involves. But marital misconduct is, unfortunately, as old as matrimony itself. Great as have been the social changes which have characterized the last century, in this respect there has been no alteration, no new development. I think it is impossible to do otherwise than proceed upon the old lines.”
While he believed that the amendment of the law should be left to the legislature, he was not unmindful of the hardship often occasioned by the application of established rules. But he held that “in laying down a proposition of law it is necessary to keep in view the consequences, and not to contemplate its operation in the particular case.” Therefore, in holding, in Derry v. Peek, 14 A. C. 376, that an untrue statement made negligently, but with an honest belief in its truth, would not sustain an action for deceit, he said: “I have arrived, with some reluctance, at the conclusion to which I have felt myself compelled, for I think that those who put before the public a prospectus to induce them to embark their money in a commercial enterprise, ought to be vigilant to see that it contains such representations only as are in strict accordance with fact, and I should be very unwilling to give any countenance to the contrary idea. I think there is much to be said for the view that this moral duty ought, to some extent, to be converted into a legal obligation, and that the want of reasonable care to see that statements, made under such circumstances, are true, should be made an actionable wrong. But this is not a matter fit for discussion on the present occasion. If it is to be done, the legislature must intervene and expressly give a right of action in respect of such a departure from duty. It ought not, I think, to be done by straining the law, and holding that to be fraudulent which the tribunal feels cannot properly be so described. I think mischief is likely to result from blurring the distinction between carelessness and fraud, and equally holding a man fraudulent, whether his acts can or cannot be justly so designated.” In common with many strong minded judges, Lord Herschell was much given to interrupting counsel during argument. His propensity in this direction is said to have been temporarily checked when, during the hearing of the case of Allen v. Flood, one of his more conservative colleagues remarked with caustic humor, “We can all pretty well understand from the present proceedings what amounts to molesting a man in his business.”1
Lord Halsbury enjoys the double distinction of having risen to the woolsack from the criminal bar, and of having held this high office under three administrations. These facts are, in themselves, evidence of varied ability and marked force. If he does not possess the profound knowledge of equity which distinguished his more eminent predecessors, his wide experience at the bar developed other gifts not less essential than learning to the successful discharge of the multifarious duties with which the chancellor is now charged. A distinguished French observer has described the English chancellor as a living image of the Trinity, embodying in his own person the three branches of government. As a peer, as speaker of the House of Lords, and as a member of the cabinet, he participates in legislation. As the creator of judges, with extensive administrative duties in regard to the courts, he represents the executive. In his judicial capacity he is president of the Court of Appeal and of the High Court, with a statutory right of sitting as a judge of first instance, if he so desires. Many years have passed since the chancellor sat as a judge of first instance, and, except when an occasional press of business may demand his presence in the Court of Appeal, his judicial duties are now confined to the House of Lords. As presiding judge of the court of final appeal, Lord Halsbury has served through many years with credit to himself and to the satisfaction of the bar. Among colleagues of greater special acquirements he has displayed unfailing tact and self-reliance, and the record of his judicial service reveals the good sense which results from wide experience with men and affairs.1
The Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is composed of the Lord President, such members of the Privy Council as hold or have held high judicial office, the Lords Justices of Appeal and a limited number of Privy Councillors appointed by the Crown. In recent years several colonial judges have been added to the tribunal, thus bringing it in closer touch with the vast empire for which it administers justice. Its jurisdiction includes colonial, Indian and ecclesiastical appeals, petitions for the prolongation of letters patent, and matters specially referred to it by the Crown. The tribunal was dominated for many years by the vast learning and powerful intellect of Lord Watson, who sat in this court for a longer period than any permanent member, except Lord Kingsdown, by whom alone Watson’s substantial contributions to imperial law are equalled.
The variety, novelty and importance of the questions coming before this tribunal lend to it an interest which transcends the merits of individual controversies. The cases specially referred to it by the Crown often involve questions of fundamental importance; and, apart from the recognized right of appeal from the colonies, the Privy Council may give special leave to appeal in cases of general or constitutional importance, or in criminal cases where grave injustice may have been done.1 Moreover, there is hardly any system of civilized law which does not prevail in some parts of the vast empire subject to the jurisdiction of this court,—in the West Indies the civil law of Spain, in Canada the civil law of France, in Africa the Roman law as modified by the Dutch, in India the laws of the Hindoo and the Mohammedan. Therefore, whether ultimately incorporated with the House of Lords to form a single court of appeal for the whole empire, or exercised as heretofore in an independent tribunal, this great imperial jurisdiction, sustaining diverse customs and principles of conduct which have been stamped with the approval of generations, is a matter of vast moral as well as legal significance. It is an effort to heed the cry of humanity for justice and peace among men.
[1 ]This essay was first published as a series of articles in the Green Bag, volume XIII. (1901), pp. 23 et seq, and volume XIV. (1902), 27 et seq.; it has been revised by the author for this collection.
[2 ]Member of the Bar of New York City; M. A. Union College.
[1 ]See Lord Justice Bowen’s graphic description of the technicalities, confusions and obscurities which beset litigation at the beginning of Queen Victoria’s reign, in the collection of essays published by Thos. Humphrey Ward in honor of the Queen’s Jubilee. [Lord Bowen’s essay is reprinted as No. 16 of this Collection.—Eds.]
[1 ]6 Vesey 263; 14 do. 203; 1 Ves. & B. 59; 1 Rose 253; 1 Glyn & J. 384; 2 Swanst. 36; 2 Bligh P. C. 402.
[1 ]Lord Eldon’s leading cases are: Ellison v. Ellison, 6 Ves. 656; Mackreth v. Symmons, 15-329; Murray v. Elibank, 10-84; Aldrich v. Cooper, 8-382; Brece v. Stokes, 11-319; Howe v. Dartinouth, 7-137; Huguenen v. Baseley, 14-273; Ex parte Pye, 18-140; Seton v. Slade, 7-265; Agar v. Fairfax, 17-533; Murray’s Benbow, 4 St. N. 1410; Lucena v. Crawford, 2 Bos. & P. (N. R.) 317; Duffreld v. Elwes, 1 Bligh (Ns.) 499; Jeeson v. Wright, 2 Bligh, 54; Evans v. Bicknell, 6 Ves. 174; Booth v. Blundell, 19 Ves. 494; Callow v. Walker, 7-1; Southey v. Sherwood, 2 Meriv, 435; Wykham v. Parker, 19 Ves. 21; Gee v. Pritchard, 2 Swanst. 414; Davis v. Duke of Marlborough, 2 Swanst. 162; Atty. Gen. v. Forstes, 10 Ves. 342; Landsdowne v. Lansdowne, 2 Bligh, 86; Gordon v. Majoribanks, 6 Dow, 111.
[1 ]Ferguson v. Kinnoul, 9 Cl. & F. 250; Stokes v. Herron, 12 do. 163; Birtwhistle v. Vardell, 2 do. 581; 7 do. 895; Cookson v. Cookson, 12 do. 121; O’Connell’s case, 11 do. 155; R. v. Millis, 10 do. 534; Atwood v. Small, 6 do. 232; Wright v. Tatham, 5 do. 670; Purves v. Landell, 12 Cl. & F. 97; Egerton v. Brownlow, 4 H. L. Cas. 1; Greenough v. Gaskell, 1 Myln. & K.; McCarthy v. De Caix, 2 Russ. & Mylne; Cooper v. Bockett, 4 Notes of Cases, 685.
[2 ]Auchterarder case, 6 Cl. & F. 46; O’Connell’s case, 11 do. 155; Tullett v. Armstrong; Scarborough v. Borman, 4 Myln & Cr. 120; Cookson v. Cookson, 12 Cl. & F. 121; Atwood v. Small, 6 do. 232; Shore v. Wilson, 9 do. 353; R. v. Millis, 10 do. 534; Stokes v. Heron, 12 do. 163; Dunlop v. Higgins, 1 H. L. Cas. 351; Wilson v. Wilson, 1 do. 538; Faun v. Malcomson, 1 do. 637; Thynne v. Earl of Glengall, 2 do. 131; Duke of Brunswick v. King of Hanover, 2 do. 1; Folev v. Hill, 2 do. 28; Piers v. Piers, 2 do. 331; Charlton’s case, 2 Myln & Cr. 316; Pym v. Locker, 5 do. 29.
[1 ]Egerton v. Brownlow, 4 H. L. Cas. 203; Maunsell v. White, 4 do. 1037; Jeffreys v. Boosey, 4 do. 842; Lumley v. Wagner, 5 De G. & S. 485; Grey v. Pearson, 6 H. L. Cas. 61; Brook v. Brook, 9 do. 195; Colyer v. Finch, 5 do. 905; Savery v. King, 5 do. 627; Bargate v. Shortridge, 5 do. 297; Jordan v. Money, 5 do. 185.
[2 ]Cox v. Hickman, 8 H. L. Cas. 267; Egerton v. Brownlow, 4 do. 1; Jeffreys v. Boosey, 4 do. 842; Oakes v. Turquand, 2 do. 369; Brook v. Brook, 9 do. 195; Ranger v. Great Western Ry. 5 do. 72; Ricket v. Metropolitan Ry. 2 E. & I. App. 174; Rylands v. Fletcher, 3 do. 330; Shaw v. Gould, 3 do. 55; Startup v. Macdonald, 12 L. J., Ex. 477; Clift v. Schwabe, 17 L. J., C. P. 2; Money v. Jorden, 2 De G. M. & G., 318; Hills v. Hills, 8 M. & W. 401; Jones v. Lock, 1 Ch. App. 25.
[3 ]Chasemore v. Richards, 7 H. L. Cas. 360; Peek v. Gurney, 6 E. & I. App. 377; Bain v. Fothergill, 7 do. 170; Hollins v. Fowler, 7 do. 762; Robinson v. Mallett, 7 do. 802; Rankin v. Potter, 6 do. 83; Overend v. Gurney, 5 do. 480; Daniel v. Metropolitan Ry., 5 do. 49; Knox v. Gye, 5 do. 656; Duke of Buccleuch, 5 do. 418; Ricket v. Metropolitan Ry., 2 do. 174; Shaw v. Gould, 3 do. 55; Hammersmith Ry. v. Brand, 4 do. 171; Lister v. Perryman, 4 do. 521; Gilbin v. McMullen, 2 P. C. 318; Steele v. No. Met. Ry., 15 W. R. 597.
[1 ]See also Higham v. Ridgeway, 1 East. 109; Elwes v. Mawe, 3 do. 98; Wain v. Warlters, 5 do. 10; Vicars v. Wilcocks, 8 do. 1; Godsall v. Boldero, 9 do. 72; Horn v. Baker, 9 do. 215; Disbury v. Thomas, 14 do. 323; Roe d. Earl of Berkeley v. Archbishop of York, 6 do. 101; Erle v. Rowcroft, 8 do. 133; Tanner v. Smart, 6 Barn. & Cress, 604. His political prepossessions may be studied in the numerous state prosecutions over which he presided, reported in the collection of State Trials, volumes twenty-three to thirty-one. The most important of these are the trials of Peltier, Hardy, Horne-Tooke, Stone, Despard, Johnson, Hunt, Lambert and Watson.
[1 ]See also R. v. O’Connell, Cl. & F., 155, R. v. Millis, 10, do. 534; Wolveridge v. Steward, 3 L. J., Ex. 360; Neal v. Mackenzie, 6 do. 263; Nepean v. Knight, 7 do. 335; Muspratt v. Gregory, 7 do. 385; Rhodes v. Smethurst, 9 do. 330; Davies v. Lowndes, 12 do. 506; McCallum v. Mortimer, 11 do. 429.
[2 ]Hochster v. De la Tour, 2 E. & B. 678; Queen v. Bedfordshire, 4 do. 535; Levy v. Green, 8 do. 575; Brass v. Maitland, 6 do. 70; Humphries v. Brogden, 20 L. J., Q. B. 10; Harrison v. Bush, 25 do. 25; Wheelton v. Hardisty, 26 do. 265; In re Alicia Race, 26 do. 169; Humfrey v. Dale, 26 do. 137; Thompson v. Hopper, 26 do. 18; Queen v. Munneley, 27 do. 345; Lewis v. Levy, 27 do. 282; Knight v. Faith, 19 do. 509; Morton v. Tibbett, 19 do. 382; De Haber v. Queen of Portugal, 20 do. 488; Shallcross v. Palmer, 20 do. 367; Boosey v. Jeffries, 20 L. J. Ex. 354; Lynch v. Knight, 9 H. L. Cas. 580; Gibson v. Small, 4 do. 352; Brook v. Brook, 9 do. 195.
[1 ]Clift v. Schwabe, 17, L. J., C. P., 2; Howard v. Gossett, 14 L. J. Q. B., 373; Chasemore v. Richards, 7 H. L. Cas. 360; Jeffreys v. Boosey, 4 do. 842; Lumley v. Gye, 2 E. & B. 216.
[2 ]Kennedy v. Brown, 13 C. B. (N. S.) 677; Ionides v. Universal Marine Association, 14 do. 259; R. v. Rowlands, 5 Cox Cr. Cas. 406; R. v. Rowton, 10 do. 25; Thompson v. Hopper, 25 L. J., Q. B., 240; Wheelton v. Hardisty, 26 do. 265; Ricket v. Metropolitan Ry. 34 do. 257; Ex parte Fernandez, 30 L. J., C. P. 321; Brand v. Hammersmith Ry. 36 L. J., Q. B. 139; Gibson v. Small, 4 H. L. Cas. 352; Jeffreys v. Boosey, 4 do. 842; Lumley v. Gye, 2 E. & B. 216; Kay v. Wheeler, L. R. 2 C. P. 302.
[3 ]R. v. O’Connell, 11 Cl. & F. 155; Startup v. Macdonald, 12 L. J., Ex. 477; Clift v. Schwabe, 17 L. J., C. P. 2; East Counties Ry. v. Broom, 20 L. J., Ex. 196; Wright v. Tatham, 5 Cl. & F. 670; R. v. Rowlands, 5 Cox Cr. Cas. 406.
[4 ]Some of his best efforts are Lumley v. Gye, 2 E. & B. 216; Mennie v. Blake, 225, L. J., Q. B. 399; Blackmore v. B. & E. Ry. Co., 27 do. 167; Wilson v. Eden, 19 do. 104; R. v. Scott, 25 L. J., Mag. Cas. 128; Egerton v. Brownlow, 4 H. L. 1; Jeffreys v. Boosey, 4 do. 842; Wright v. Tatham, 5 Cl. & F. 670; Shore v. Wilson, 9 do. 353.
[1 ]Acton v. Blundell, 13 L. J., Ex. 289; Marston v. Fox. 8 do. 293; Panton v. Williams, 10 do. 545; James v. Plant, 6 do. 260; Hitchcock v. Cocker, 6 do. 266; Scarborough v. Saville, 6 do. 270; Howden v. Simpson, 8 do. 281; Chanter v. Leese, 9 do. 327; Sadler v. Dixon. 11 do. 435; Whyte v. Rose, 11 do. 457; Collins v. Evans, 13 L. J., Q. B. 180; R. v. Frost, 4 St. Tr. 130; Charge to Grand Jury, do. 1411; R. v. O’Connell, 11 Cl. & F. 155; R. v. Millis, 10 do. 534; Shore v. Wilson, 9 do. 353; Coxhead v. Richards, 2 C. B. 569; Flight v. Booth, 1 Bing. N. C. 377; Cook v. Ward, 4 M. & P. 99; Kemble v. Farren, 3 do. 425; Margetson v. Wright, 5 do. 606.
[2 ]R. v. Burton, 1 Dears. C. C. 282; Borrodaile v. Hunter, 5 M. & G. 639; M’Naghten’s case, 10 Cl. & F. 199; Shore v. Wilson, 9 Cl. & F. 353.
[1 ]Earl of Shrewsbury v. Scott, 6 C. B. (N. S.) 1; Behn v. Burness, 1 B. & S. 877; Ex parte Swan, 7 C. B. (N. S.) 400; Johnson v. Stear, 15 C. B. (N. S.) 30; Spence v. Spence, 31 L. J., C. P. 189; Hall v. Wright, E., B. & E. 1; Cooper v. Slade, 6 E. & B. 447; Anderson v. Radcliffe, 29 L. J., Q. B. 128; Bamford v. Turnley, 31 do. 286; Penhallow v. Mersey Docks Co., 30 L. J., Ex. 329; Shore v. Wilson, 9 Cl. & F. 353; Wright v. Tatham, 5 do. 670; Roddam v. Morley, 1 De G. & J. 1; Hounsell v. Smith, 7 C. B. (N.S.) 731.
[2 ]Clift v. Schwabe, 17 L. J., C. P. 2; Attorney General v. Sillem, 33 L. J., Ex. 92; Hall v. Wright, 29 L. J., Q. B. 43; Egerton v. Brownlow, 4 H. L. Cas. 1; Gibson v. Small, 4 do. 352; Jeffreys v. Boosey, 4 do. 842; Wood v. Wand, 3 Ex. 774; Molton v. Caurraux, 4 do. 17; Bellamy v. Major, 7 do. 389; Hudson v. Roberts, 6 do. 697; R. v. Abbott, 1 Dears. C. C. 273.
[1 ]When asked once why he had not written a book he replied: “My works are to be found in the pages of Meeson and Welsby.” These volumes are the best monument of his industry. As most of the opinions are rendered by him, it is unnecessary to undertake to give a comprehensive selection. The following will suffice as examples: Norton v. Elain, 2 M. & W. 461; Langridge v. Levy, 2 do. 461; Nepean v. Knight, 2 do. 894; Doe d. Rees v. Williams, 2 do. 749; Harris v. Butler, 2 do. 539; Jackson v. Cummings, 5 do. 342; Evans v. Jones, 5 do. 77; Merry v. Green, 7 do. 623; Acton v. Blundell, 12 do. 324; King v. Hoare, 13 do. 494.
[2 ]Hadley v. Baxendale, 9 Ex. 341; Wood v. Leadbitter, 13 M. & W. 840; King v. Hoare, 13 do. 494; Skeffington v. Whitehurst, 1 Y. & C. 1; Startup v. Macdonald, 12 L. J., Ex. 477; Egerton v. Brownlow, 4 H. L. Cas. 1; Gibson v. Small, 4 do. 352; Jeffreys v. Boosey 4 do. 842; O’Connell’s case, 11 Cl. & F. 155; Wright v. Tatham, 5 do. 670.
[1 ]Following is a fairly comprehensive list of his most important contributions to international law: The Santa Cruze, 1 C. Rob. 50; Mercurius, ib. 80; Frederick Molke, ib. 86; Betsy, ib. 93; Flad Oyen, ib. 135; Hendrick and Maria, ib. 146; Columbia, ib. 154; Mentor, ib. 179; Jouge Margaretha, ib. 189; Hoop, ib. 196; Two Friends, ib. 271; Vrow Margaretha, ib. 336; Maria, ib. 340; Immanuel, 2 C. Rob. 186; Indian Chief, 3 C. Rob. 12; Portland, ib. 41; Twee Gebroeder, ib. 162, 336; Inuan, ib. 167; Atlas, ib. 299; Bremen Flugge, 4 C. Rob. 90; Anna Catharina, ib. 107; Fortuna, ib. 278; Venus, ib. 355; Phoenix, 5 C. Rob. 20; Carlotta, ib. 54; Boedes Lust, ib. 233; Anna, ib. 373; Orozambo, 6 C. Rob. 430; Atalanta, 6 ib. 440; Neptunus, 6 ib. 403; Madison, Edwards, 224; Coylon, 1 Dods. 505; Eliza Ann, ib. 244; Fanny, 2 Dods. 210; Le Louis, ib. 210.
[1 ]Some of Lushington’s conspicuous cases in Admiralty are: The Milan, Lush. 388; Franciska, 2 Spink’s Adm. and Ecc. 1; Banda and Kirwee Booty, L. R., 1 A. and E. 109; Batavia, 9 Moo. P. C. 286; Europe, Br. and Lush. 89; Pacific, ib. 245; Helen, L. R., 1 A. and E. 1.
[1 ]It was in the Exchequer Chamber that the judges assembled when they were consulted by the king. These consultations were frequent in early times. The judges were consulted by Richard II as to his kingly power; by Henry VII as to whether the devolution of the crown upon him purged him of his attainder by Richard III; by Henry VIII as to whether on a bill of attainder a person need be heard in his own defence. The practice became so common that in 1591 the assembled judges volunteered some good advice on the subject of illegal commitments.
[1 ]Some of the other cases in which the lay peers participated were Douglas v. St. John (Lord’s Journal, XXXII, 264), in 1769; Alexander v. Montgomery (Lord’s Journal, XXXIII, 519), in 1773; Hill v. St. John (Lord’s Journal, XXXIV, 443), in 1775; Bishop of London v. Fytche (Lord’s Journal, XXXVI, 687), in 1783.
[1 ]Mordaunt v. Moncrieff, 1 Pr. & Div. App. 374, upon the question whether the statutory proceeding for dissolution of a marriage can be instituted or proceeded with either on behalf of or against a husband or a wife who prior to the institution of such proceedings had become incurably insane; Allison v. Bristol Marine Insurance Co., 1 App. Cas. 214; Dalton v. Angus, 6 App. Cas. 742, as to the right of lateral support for buildings; and the celebrated trade union case of Allen v. Flood, (1898) A. C. 1.
[2 ]These difficulties were clearly defined by Justice Maule in M’Naghten’s case, 10 Cl. & F. 199, where he hesitated to answer the questions propounded, “first, because they do not appear to rise out of and are not put with reference to a particular case, or for a particular purpose, which might explain or limit the generality of their terms, so that full answers ought to be applicable to every possible state of facts not inconsistent with those assumed in the questions; secondly, because I have heard no argument at your lordships’ bar or elsewhere on the subject of these questions, the want of which I feel the more the greater are the number and extent of questions which might be raised in argument; and, thirdly, from a fear, of which I cannot divest myself, that as these questions relate to matters of criminal law of great importance and frequent occurrence, the answers to them by the judges may embarrass the administration of justice when they are cited in criminal cases.”
[1 ]Atty. Gen. v. Winstanley, 5 Bligh (N. S.) 14.4.
[2 ]O’Connell v. The Queen, 11 Cl. & F. 232, on the validity of a general judgment when some of the counts in an indictment are bad; Jeffreys v. Boosey, 4 H. L. 815, on copyright; Unwin v. Heath, 5 H. L. recover for damage necessarily resulting from the exercise of powers conferred by Parliament; and Allen v. Flood, (1898) A. C. 1.
[3 ]Cushing v. Dupuy, 5 App. Cas. 409.
[1 ]I Ves. Sr., 446.
[1 ]Prior to this time the only Privy Council reports, aside from occasional decisions contained in the early House of Lords reports, were those of Acton and Knapp. The former (1809-11) is made up mostly of brief opinions in prize and colonial cases by Sir William Grant, who was during the early part of the century the dominant influence in the court. The reports of the court under its modern establishment begin with Knapp (1829-36), and the two series of his successor, Moore, overlap the authorized reports.
[1 ]The following are among his ablest opinions in various branches of the law: Schacht v. Otter, 9 Moo. P. C. 150; Allen v. Maddock, 11 do. 438; Baltazzi v. Ryder, 12 do. 168; Kirchner v. Venus, 12 do. 361; Secretary of State of India v. Kamachee Boye Sahaba, 13 do. 22; Bland v. Ross, 14 do. 210; Ward v. McCorkill, 15 do. 133; Attorney General of Bengal v. Ranee Surnomoye Dossee, 2 Moo. P. C. (n. s.) 22; Cleary v. McAndrew, 2 do. 216; Brown v. Gugy, 2 do. 341; Austen v. Graham, 1 Spink 357; The Otsee, 2 do. 170; The Julia, Lush. 224; The Hamburgh, Br. and Lush. 271. His opinions in ecclesiastical cases were likewise characterized by breadth of mind. Among his most prominent cases of this kind are Gorham v. Bishop of Exeter, Liddell v. Weaterton, Long v. Bishop of Capetown, and the Essays and Reviews case.
[1 ]Among other causes célèbres in which he presided were the Matlock will case; the Wainwright murder case, a leading case on circumstantial evidence; the convent case of Saurin v. Starr, an action by a sister of mercy against her mother superior for assault, and Reg. v. Gurney, a famous case of fraud conspiracy.
[1 ]Campbell v. Spottiswood, 3, B. & S. 769. See also Hunter v. Sharp, 4 F. & F. 983, as to the protection afforded with respect to statements of motive.
[1 ]In the Court of Queen’s Bench: Campbell v. Spottiswoode, 32 L. J., Q. B. 185; Lloyd v. Guibert, 33-241, etc.; Burges v. Wickham, 33-17; Coe v. Wise, 33-281; Moody v. Corbett, 34-166; Maurpoice v. Westley, 34-229; Wilson v. Bank of Victoria, 36-89; Fleet v. Perrins, 37-223; Allen v. Graves, 39-157; Godard v. Gray, 40-62; Ionides v. Pacific Ins. Co., 41-33; Lloyd v. Spence, 41-93; Newby v. Van Oppen, 41-188; Armstrong v. Stokes, 41-253; Crouch v. Credit Foncier Co., 42-183; Searle v. Laverick, 43-43; Queen v. Castro, 43-105; Taylor v. Greenhalg, 43-168; Ionides v. Pender, 43-227; Bettini v. Gye, 45-209; Mackenzie v. Whitworth, 45-233; Lindsay v. Cundy, 45-381; Queen v. Collins, 45-413; Shand v. Bowes, 45-507.
[1 ]Some of his most elaborate and exhaustive opinions are Beamish v. Beamish, 9 H. L. C. 274, an examination of the ecclesiastical sanctions to the contract of marriage; Ex parte Fernandez, 30 L. J., C. P. 321, on the validity of a commitment for contempt by a court of assize; Lloyd v. Guibert, I Q. B. 115, as to what law governs as to sea damage in a contract of affreightment; Exposito v. Bowden, 8 St. Tr. 817, as to the effect on a contract of affreightment of trading with an enemy; Mayor of London v. Cox, 3 E. and I. App. 252, on the history and principles of the practice of foreign attachment; Notara v. Henderson, 7 Q. B. 225, on the duties of the master of a vessel; Seymour v. London and Insurance Co., 41 L. J., C. P. 193, on contraband of war; Phillips v. Eyre, 6 Q. B. 1, on the jurisdiction of English courts over acts committed abroad; Mody v. Gregson, 4 Ex. 49, as to the application of the doctrine of warranty in a sale by sample; Dawkins v. Lord Rokeby, 4 F. and F. 829, as to absolute privilege in libel; Henwood v. Harrison, 7 C. P. 606, on fair criticism of matters of public interest; Shrewsbury v. Scott, 6 C. B. 1, on the disabilities of Catholics with respect to real property. It may be said of all these opinions, as Lord Campbell said in the House of Lords of Willes’s opinion in Beamish v. Beamish, that they “display extraordinary research and will hereafter be considered a repertory of all the learning to be found in any language upon the subject.” For further study, see also: Cook v. Lister, 13 C. B. (n. s.) 543 (bills of exchange); Dakin v. Oxley, 15 C. B. (n. s.) 646 (charter party); Gt. Western Ry. v. Talley, 6 C. P. 44 (negligence); Hall v. Wright, 29 L. J., Q. B. 43 (breach of promise); Intermaur v. Dames, 1 C. P. 274 (negligence); Ionides v. Marine Ins. Co., 14 C. B. (n. s.) 259 (insurance); Kidston v. Empire Marine Ins. Co., 1 C. P. 535 (insurance); Malcomson v. O’Dea, 10 H. L. 611 (evidence); Mountstephen v. Lakeman, 7 Q. B. 196 (statute of frauds); Patter v. Rankin, 3 C. P. 562 (marine insurance); Ryder v. Wombell, 4 Ex. 32 (infant’s necessaries); Reg. v. Rowton, 10 Cox Cr. Cas. 37 (evidence); Reuss v. Picksley, 1 Ex. 342 (statute of frauds); Santos v. Illidge, 28 L. J., C. P. 317 (emancipation act); Wilson v. Jones, 2 Ex. 139 (insurance); Bonillon v. Lupton, 15 C. B. (n. s.) 113 (marine insurance).
[1 ]Miller v. Salomons, 7 Ex. 475, etc.; Embrey v. Owen, 6 ib. 353: Bellamy v. Majoribanks, 7 ib. 389; Crouch v. Great Northern Ry., 11 ib. 742; Hubbertsty v. Ward, 8 ib. 330; Read v. Legard, 6 ib. 636; Dublin Ry. v. Black, 8 ib. 181.
[2 ]Upon his retirement he could recall only one unpleasantness. “Once a very old and dear friend of mine provoked me so much and made me so angry that I actually threatened to commit him, and I remember that on my asking him what he would have done if I had committed him, he answered promptly, ‘Move for my own discharge.’ ”
[1 ]Observe, also, his position on the liability for rent of an original lessee whose assignee has become bankrupt and disclaimed the case. Smyth v. North, 7 Ex. D., 250.
[1 ]See his articles on “Drink” in Nineteenth Century, May and June, 1885, and his pamphlet “On the Liabilities of Masters to Workmen for Injuries from Fellow-Servants,” London, 1880.
[1 ]British and American Tel. Co. v. Colson, 6 Ex. 118; Household Fire Insurance Co. v. Grant, 4 Ex. D. 216.
[2 ]14 A. C. 179.
[3 ]Baron Bramwell’s principal efforts are: Derry v. Peek, 14 App. Cas. 337 (deceit); Jackson v. Insurance Co., 10 C. P. 25 (marine insurance); Hall v. Wright (breach of promise); Bullen v. Sharp, 1 C. P. 86 (partnership); Debenham v. Mellon, 5 Q. B. D. 394 (wife’s necessaries); Rankin v. Patter, 6 E. and I. App. 131 (marine insurance); Reg. v. Druitt, 10 Cox Cr. Cas. 592; Commrs. of Income Tax v. Pemsel, (1891) A. C. 531 (charity); Mogul Steamship Co. v. McGregor, (1892) A. C. 25 (conspiracy); Mills v. Armstrong, 13 A. C., 1 (negligence); Capital and Counties Bank v. Henty, 7 A. C. 741 (libel); Degg v. Midland Ry. 1 H. and W. 781 (master and servant); Jones v. Tapling, 31 L. J., C. P. 342 (easements); Gray v. Carr, 6 Q. B. 522 (shipping); Hammersmith Ry. v. Brand (damage for vibration); Bryant v. Foot, 3 Q. B. 497 (prescription); Rodocanachi v. Elliott, 9 C. P. 578 (marine insurance); Mullinger v. Florence, 3 Q. B. D. 484 (liens); Clark v. Molyneux, 3 Q. B. D. 237 (libel); Massam v. Cattle Food Co., 14 Ch. D. 763 (trade name); Honck v. Muller, 7 Q. B. D. 92 (sales); Sewell v. Burdick, 10 A. C. 74 (bill of lading); Britton v. Gt. Western Cotton Co., 7 Ex. 130 (master and servant); Duke of Buccleuch v. Board of Works, 3 Ex. 306; Reg. v. Castro, 5 Q. B. D. 507 (criminal procedure); Drew v. Nunn, 4, Q. B. D. 668 (agency); Ryder v. Wombell, 3 Ex. 218 (infants’ necessaries).
[1 ]For example, in Overend v. Gibbs, 5 E. and I. App. 495, he offers the following sensible reflection:
[1 ]Udny v. Udny, 1 Sc. & Div. App. 457; Cookney v. Anderson, 32 L. J. Ch. 427; Ex parte Chavasse, 34 L. J., Bank. 17; Enohin v. Wylie, 10 H. L. Cas. 1; Bell v. Kennedy, 1 Sc. & Div. App. 320, and Shaw v. Gould, 3 E. & I. App. 80.
[2 ]Leather Cloth Co., v. Leather Cloth Co., 33 L. J. Ch. 199; McAndrew v. Bassett, 33 L. J. Ch. 561; Witherspoon v. Currie, 5 E. & I. App. 521; Hills v. Evans, 31 L. J. Ch. 458;. Betts v. Menzies, 10 H. L. Cas. 151.
[3 ]Tapling v. Jones, 11 H. L. Cas. 303; Suffield v. Brown, 33 L. J. Ch. 249; Backhouse v. Bonomi, 9 H. L. Cas. 503.
[4 ]Holroyd v. Marshall, 10 H. L. Cas. 208; Cooper v. Phibbs, 2 H. L. Cas. 149; St. Helen’s Smelting Co. v. Tipping, 11 H. L. Cas. 649; Blades v. Higgs, 11 H. L. Cas. 630; Isenberg v. East Indian Estates Co., 33 L. J., Ch. 392; Lister v. Perryman, 5 E. & I. App. 538; Sackville West v. Holmesdale, 5 E. & I. App. 565.
[1 ]Personal and Political Memoirs, pt. 2, vol. 1, pp. 157, 158.
[1 ]The peroration of his speech on the English humiliation in the Transvaal has often been admired as a specimen of parliamentary eloquence:
[1 ]A comparison between his solution of the case of Goodwin v. Robarts, 1 App. Cas. 488, with Chief Justice Cockburn’s judgment in the lower court (10 Ex. 337) will illustrate his habit of seeking ultimate principles.
[1 ]See Cairns’ Decisions in the Albert Insurance Company Arbitration, 1870-’72, particularly Kennedy’s case, p. 5.
[1 ]Among his other legislative achievements are the Conveyancing Act, the Vendors’ and Purchasers’ Act, and the Registry Act. The only statute which bore his name, however, was the act enabling the Chancery Courts to give damages in lieu of specific performance or injunction.
[1 ]Castrique v. Imrie, 4 E. &. I. App. 414; Barber v. Meyerstein, 4 do. 317; Aister v. Perryman, 4 do. 521; Knox v. Gye, 5 do. 656; Daniel v. Metropolitan Ry., 5 do. 49; Overend v. Gurney, 5 do. 480; Rankin v. Potter, 6 do. 83; Bain v. Fothergill, 7 do. 170; Orr Ewing v. Colquhoun, 2 App. Cas. 839; Thorn v. Mayor of London, 1 do. 120; Rhodes v. Forwood, 1 do. 256; Bowes v. Shand, 2 do. 455; Brogden v. Metropolitan Ry., 2 do. 666; Rossiter v. Miller, 3 do. 1124; Kendall v. Hamilton, 4 do. 504; Sturla v. Freccia, 5 do. 623; Harrod v. Harrod, 1 K. & J. 4; Reade v. Lacy, 1 J. & H. 524.
[1 ]Hope v. Hope, 1 Sw. & Tr. 94; Keats v. Keats, 1-346; Mette v. Mette, 1-416; Tallemache v. Tallemache, 1-561; Tompkins v. Tompkins, 1-168; Ward v. Ward, 1-185; Egerton v. Brownlow, 4 H. L. 1; Sutton v. Sadler; Coxhead v. Richards, 2 C. B. 569.
[2 ]Some of his notable admiralty cases are: The Charkieh, 4 Adm. & Ecc. 50; The Tentonia, 3 do. 394; The Halley, 2 do. 3; The Circassian; The Constitution; The Parlement Belge, 5 P. D. 197; The City of Mecca, 5 do. 28; The Macleod, 5 do. 254; R. v. Keyn, 2 Ex. D. 63.
[1 ]Thomas v. Roberts, 3 De G. & Sm. 758; Walter v. Selfe, 4 do. 315; Prince Albert v. Strange, 2 do. 652; Re Cumming, 1 De G., M. & G. 559; Kekewich v. Manning, 1 do. 176; Burgess v. Burgess, 3 do. 896; Briggs v. Penny, 3 De G., M. & S. 525.
[2 ]A fine illustration of their benevolent wisdom is their disposition of the case of Stourton v. Stourton, 8 D. M. & G. 760, where it was sought to interfere with the education of a child who was being reared by his guardians in a different faith from that professed by the boy’s father. The judges had an interview with the child, and Lord Justice Knight-Bruce expressed the opinion that “the Protestant seed sown in his mind has taken such hold that if we are to suppose it to contain tares they cannot be gathered up without great danger of rooting up also the wheat with them. Upon much consideration, I am of the opinion that the child’s tranquillity and health, his temporal happiness and, if that can exist apart from his spiritual welfare, his spiritual welfare also, are too likely now to suffer importantly from an endeavor at effacing his Protestant impressions not to render any such attempt unsafe and improper.” And Lord Justice Turner sagely adds, in answer to the argument that the child was too young to have formed fixed opinions: “May it not be that the impressions which have been formed might lead to the instruction which would be given being received with carelessness or indifference, or, which would certainly not be less dangerous or less destructive to the character of the boy, with affected acquiescence?”
[1 ]Harvey v. Farnie, 6 P. D. 35; Niboyet v. Nibeyet, 4 do. 1; Massam v. Cattle Food Co., 14 Ch. D. 748; In re Campden’s Charities, 18 do. 310; New Sombrero Co. v. Erlanger, 5 do. 73; Smith v. Anderson, 15 do. 247; Re Goodman’s Trusts, 44 L. T. 527; Wimbleton Conservators v. Dixon, 1 Ch. D. 362; Pike v. Fitzgibbon, 14 do. 837; In re Agar Ellis, 10 do. 49; Re Canadian Oil Works, 10 Ch. App. 599; Barnes v. Addy, 9 Ch. 244; Day v. Brownrigg, 10 Ch. D. 294; Johns v. James, 8 do. 744; Macdonald v. Irvine, 8 do. 101; Rogers v. Ingham, 3 do. 351; Nitro Phosphate Co. v. London, etc., Docks, 9 do. 503.
[1 ]Nugent v. Smith, 1 C. P. D. 423; Nichols v. Marsland, 2 Ex. D. 1; Aynsley v. Glover, 10 Ch. 283; Hext v. Gill, 7 do. 712; Crook v. Hill, 6 do. 311; Lindsay v. Cundy, 2 Q. B. D. 96; Dickinson v. Dodds, 2 Ch. D. 463; Wimbleton Conservators v. Dixon, 1 Ch. D. 362; Rogers v. Ingham, 3 do. 351; Re South Wales, etc., Co., 2 do. 763; Hopkins v. Great Northern Ry. Co., 2 Q. B. D. 228.
[2 ]His various arguments in answer to the supporters of the old order of things afford fine specimens of his powers. For instance, in reply to the contention that judgments of the highest authority had been rendered in the House by the chancellor alone, he said: “If there be a single judge who, by the common consent of mankind, embodies the highest qualities of a judge, then the decisions of that individual, being uniform, certain, definite and clear, would be of the highest possible value; precisely as if you had an arbitrary government, with absolute authority vested in a man of the highest possible moral and intellectual perfections, one would desire to live under that government rather than any other. But it is so difficult to obtain such a man, and still more a succession of such men, that it is impossible, particularly in the case of a tribunal which has causes brought before it from all quarters of the globe, involving all possible questions, to suppose that one individual will at all times be equal to the satisfactory determination of such a vast and multitudinous assembly of subjects; therefore it is that we desire a greater number of minds than one, in order that some may supply what is wanting in others.”
[1 ]Hansard’s Parl. Debates, vol. 214, pp. 331, 337.
[2 ]The first Judicature Act was passed in 1873, and was designed to take effect in 1874; but this not being practicable its operation was postponed until 1875, when a second act was passed, and the judges took their seats as members of the Supreme Court.
[1 ]Other evidences of his ability may be found in Reg. v. Bradlaugh, 15 Cox Cr. Cas. 225; Usill v. Hales, 3 C. P. D. 319; Reg. v. Labouchere, 15 Cox Cr. Cas. 423; Mogul Steamship Co. v. McGregor, 21 Q. B. D. 544; Reg. v. Keyn, 2 Ex. D. 63; Twycross v. Grant, 2 C. P. D. 469; Bowen v. Hall, 6 Q. B. D. 333 (dissenting); Ford v. Wiley, 16 Cox Cr. Cas. 688; Bradlaugh v. Newdigate, 11 Q. B. D. 1.; Currie v. Misa, 10 Ex. 153 (dissenting); Mackonochie v. Penzance, 4 Q. B. D. 697; Ex parts Daisy Hopkins, 17 Cox Cr. Cas. 448.
[1 ]Boughton v. Knight L. B. 3 P. 64; Durham v. Durham; Sugden v. St. Leonards, 1 P. D. 154; Gladstone v. Gladstone; Crawford v. Dilke; Frederick Legitimacy Case; Niboyet v. Niboyet, 4 P. D. 1: Smee v. Smee, 5 P. D. 84; Sottomayor v. De Barros, 5 P. D. 94; Bloxam v. Favre, 9 P. D. 130; Harvey v. Farine, 52 L. J. P. 53; Peek v. Derry, 37 Ch. D. 591; Haster v. Haster, 42 L. J. P. 1; Duke of Buccleuch v. Met. Bd. Wks. 5 E. and I. App. 418; Bailey v. De Crespigny, 4 Q. B. 184.
[2 ]Re Castioni, 17 Cox Cr. Cas. 237; R. v. Curtis, 15 do. 749; R. v. Clarence, 58 L. J., Mag. Cas. 10; R. v. Lillyman, 65 do. 195; Ford v. Wiley, 16 Cox Cr. Cas. 688.
[3 ]R. v. Tolson, 23 Q. B. 169; D. v. Serné, 16 Cox Cr. Cas. 311; R. v. Clarence, 16 do. 523; R. v. Cox, 15 do. 612; R. v. Price, 15 do. 393; R. v. Doherty, 16 do. 307.
[1 ]See Coventry and Dixon’s case, 14 Ch. D. 660.
[2 ]Jessel’s work may be studied in the following list of representative opinions: Re Hallett’s Estate, 13 Ch. D. 693; Smith v. Chadwick, 46 L. T. 702, 20 Ch. D. 67; Wallis v. Smith, 21 Ch. D. 243; Re Campden’s Charities, 18 Ch. D. 310; Baker v. Sebright, 13 Ch. D. 179; Rossiter v. Miller, 36 L. T. 304; Adams v. Angell, 5 Ch. D. 634; Anglo-Italian Bank v. Davies, 9 Ch. D. 275; Carter v. Wake, 4 Ch. D. 605; Dymond v. Croft, 3 Ch. D. 512; Re Eager, 32 Ch. D. 86; Flower v. Lloyd, 6 Ch. D. 297; Freeman v. Cox, 8 Ch. D. 148; Re Hargreave’s Contract, 32 Ch. D. 454; Henty v. Wrey, 21 Ch. D. 332; Patman v. Harland, 17 Ch. D. 353; Redgrave v. Hurd, 20 Ch. D. 1; Richards v. Delbridge, L. R. 18 Eq. 11; Steed v. Preece, L. R. 18 Eq. 192; Sutton v. Sutton, 22 Ch. D. 511; Tussaud v. Tussaud, 9 Ch. D. 363; Walsh v. Lonsdale, 21 Ch. D. 9; Couldery v. Bartrum, 19 Ch. D. 394; Sugden v. St. Leonards, 1 P. D. 154; Ex parte Reynolds, 20 Ch. D. 294; Suffell v. Bk. of England, 9 Q. B. D. 555; Mersey Steel Co. v. Naylor, 9 Q. B. D. 648; Aynsley v. Glover, 18 Eq. 544; Speight v. Gaunt, 22 Ch. D. 727; Ewing v. Orr Ewing, 22 Ch. D.; Re W. Canada Oil Co. 17 Eq. 1 (first case); Ex parte Willey, 74 L. T. 366 (last case).
[1 ]Johnstone v. Milling, 16 Q. B. D. 460; Henty v. Capital & Counties Bank, 7 do. 174; Davies v. Davies, 36 Ch. D., 359; Allcard v. Skinner, 36 do. 145; Tod Heatley v. Benham, 40 do. 97; Angus v. Dalton, 6 App. Cas. 779; Harney v. Farnie, 6 P. D. 35; Niboyet v. Niboyet, 4 do. 1; Re Goodman’s Trusts, 44 L. T. 527; Turton v. Turton, 61 do. 571; Kensit v. Great Eastern Ry., 51 do. 863; Hunt v. Clarke, 61 do. 343.
[2 ]Gray v. Carr, 6 Q. B. 554.
[1 ]The following cases will give an accurate idea of his great labors: Le Lievre v. Gould, (1893) 1 Q. B. 491; Johnstone v. Milling, 16 Q. B. D. 460; The Bernina, 12 P. D., 58; Mitchell v. Darley Main Colliery, 14 Q. B. D. 125; Bowen v. Hall, 6 do. 333; Randall v. Newson, 2 do. 102; Mogul Steamship Co. v. McGregor, 23 do. 598; Johnson v. Roylton, 7 do. 438; Harrison v. Duke of Rutland, (1893) 1 Q. B. 142; Niboyet v. Niboyet, 4 P. D. 1; Currie v. Misa, 10 Ex. 153; R. v. Judge of the City of London Court, 66 L. T. 135; The Gas Float Whitton, 65 L. J., P. 17; Dawkins v. Antrobus, 17 Ch. D. 615; Angus v. Dalton, 6 App. Cas. 779; Drew v. Nunn, 4 Q. B. D. 661; R. v. Keyn, 2 Ex. D. 63; R. v. Bunn, 12 Cox Cr. Cas. 338; Brunsden v. Humphrey, 14 Q. B. D. 141; Thomas v. Quartermaine, 18 do. 685; Finlay v. Chirney, 20 do. 494; Merivale v. Carson, 20 do. 275; Henty v. Capital & Counties Bank, 7 Q. B. D. 174; Mackonochie v. Penzance, 4 do. 697; Abrath v. North Eastern Ry., 11 do. 440; Sewell v. Burdick, 13 do. 159; Rankin v. Potter, 6 E. & I. App. 83; Hollins v. Fowler, 7 do. 762; The Parlement Belge, 5 P. D. 197; Bridges v. No. London Ry., 7 E. & I. App. 213; Bank of England v. Vagliano, 61 L. T. 420; Medawar v. Grand Hotel Co., 64 do. 851; R. v. Barnado, 64 do. 73; Castillian v. Preston, 49 do. 29; Ballard v. Tomlinson, 52 do. 952; The Pondita, 51 do. 849; Macdougall v. Knight, 55 do. 274; The Moorcock, 60 do. 654; Searles v. Scarlett, 66 do. 837; Campania de Mocambique v. British So. Africa Co., 66 do. 773; South Hettor Coal Co. v. News Asso., 63 do. 293; Meux v. Great Eastern Ry., 64 do. 657; Wakelin v. London & South Western Ry., 65 do. 224; Seten v. Lafone, 57 do. 547; Walter v. Everard, 65 do. 443; Salmon v. Warner, 65 do. 132; Cleaver v. Mutual Life Asso., 66 do. 220; Royal Aquarium v. Parkinson, 66 do. 513; Turton v. Turton, 61 do. 571.
[1 ]R. v. Keyn, 2 Ex. D. 63; The Bernina, 12 P. D. 58; Angus v. Clifford, 6 App. Cas. 779; Scaramanga v. Stamp, 4 C. P. D. 316; Hollins v. Merney, 13 Q. B. D. 305; Tod Heatley v. Benham, 40 Ch. D. 97; Dashwood v. Magniac, (1891) 3 Ch. 306; Allcard v. Skinner, 36 Ch. D., 145; Maxim-Nordenfelt case, (1893) 1 Ch. 631; Carlill v. Carbolic Smoke Ball Co., (1893) 1 Q. B. 265; Dalton v. Angus, 6 App. Cas. 740; Smith v. Chadwick, 20 Ch. D. 67; Stuart v. Bell, 64 L. T. 633; Reddaway v. Hemp Spinning Co., 67 do. 301; Whitwood Chemical Co. v. Hardman, 64 do. 716; Re Piercy, 78 do. 277; Re Perry Almshouses, 79 do. 366; Lyons v. Wilkins, 79 do. 709; Pemberton v. Hughes, 80 do. 592; Low v. Bonvière, 65 do. 533; McClatchie v. Hasham, 65 do. 691; Ballard v. Tomlinson, 52 do. 942; White v. White, 62 L. J., Ch. 342; Lemmon v. Webb, 63 do. 570; Hudson v. Ashby, 65 do. 515; Powell v. Birne Vinegar Co., 65 do. 563; Macduff v. Macduff, 65 do. 700; Hardacker v. District Council, 65 L. J., Q. B. 363; Speight v. Gaunt, 22 Ch. D. 727.
[1 ]Cochrane v. Moore, 25 Q. B. D. 57; Davies v. Davies, 36 Ch. D. 359; Northern Counties Fire Ins. v. Whipp, 26 do. 482; Miles v. New Zealand Co. 32 do. 266; Nitro-Phosphate Co. v. London Docks Co., 9 do. 503; Fritz v. Hobson, 14 do. 42; Smith v. Chadwick, 20 Ch. D. 67; Dalton v. Angus, 6 App. Cas. 740; Roussilon v. Roussilon, 14 Ch. D. 358; Salmon v. Warner, 65 L. T. 132; Walter v. Everard, 65 do. 445; Wallis v. Smith, 47 do. 389; Campania de Mocambique v. British So. Africa Co., 66 do. 773; R. v. Jackson, 64 do. 679.
[1 ]23 Ch. D. 654.
[2 ]18 Q. B. D. 694.
[3 ](1893) 1 Q. B. 265.
[4 ]37 Ch. D. 479.
[5 ](1893) 1 Q. B. 474.
[1 ]For Lord Bowen’s substantial contributions to English law the following cases may be cited:
[1 ]Solomon v. Solomon, (1897) A. C. 22; Ooregum Gold Mining Co. v. Roper, (1892) A. C. 125; Nordenfelt v. Maxim-Nordenfelt Co. (1894) A. C. 535; Tailby v. Official Receiver, 13 App. Cas. 523; Trevor v. Wentworth, 12 App. Cas. 409; Drummond v. Van Ingen, 12 App. Cas. 284.
[1 ]Aylesford v. Morris, 8 Ch. App. 484; Noble v. Willock, 8 Ch. App. 778.
[1 ]Some of Selborne’s more important opinions are: Maddison v. Alderson, 8 App. Cas. 467 (statute of frauds); Debenham v. Mellon, 6 App. Cas. 24 (wife’s necessaries); Dalton v. Angus, 6 App. Cas. 740 (easements; Sewell v. Burdick, 10 App. Cas. 74 (bill of lading); Pearks v. Moseley, 5 App. Cas. 714 (bequest); Lyell v. Kennedy, 14 App. Cas. 448 (real property); Sturla v. Freccia, 5 App. Cas. 623 (evidence); Speight v. Gaunt, 9 App. Cas. 1 (trust); Bank of England v. Vagliano, (1891) A. C. 107; Duncan v. Wales Bank, 6 App. Cas. 8 (bill of exchange); Harvey v. Farnie, 8 App. Cas. 43 (Scotch divorce); Mackonochie v. Penzance, 6 App. Cas. 424 (ecclesiastical law); Whyte v. Pollock, 7 App. Cas. 400 (will); Mayor of London v. London Bank, 6 App. Cas. 393 (attachment); Mersey Steel Co. v. Naylor, 9 App. Cas. 434 (contracts); London, etc., Ry. v. Truman, 11 App. Cas. 45; Drummond v. Van Ingen, 12 App. Cas. 284; Ewing v. Orr-Ewing, 10 App. Cas. 499; Minors v. Battison, 1 App. Cas. 428; Sarf v. Jardine, 7 App. Cas. 345; Singer Mfg. Co. v. Loog, 8 App. Cas. 15; Kendal v. Hamilton, 4 App. Cas. 504; Brogden v. Met. Ry., 2 App. Cas. 666; Capital and Counties Bank v. Henty, 7 App. Cas. 741; Erlanger v. Phosphate Co., 3 App. Cas. 1218; Dublin Ry. Co. v. Slattery, 3 App. Cas. 1155; Lyon v. Fishmonger’s Co., 1 App. Cas. 662; Clyde Navigation Co. v. Barclay, 1 App. Cas. 790; Bradlaugh v. Clarke, 8 App. Cas. 345; Foakes v. Beer, 9 App. Cas. 605; Earl of Aylesford v. Morris, 8 Ch. App. 484; Ex. parte Watkins, 8 Ch. 520; Cooper v. McDonald, 16 Eq. 258; Ayerst v. Jenkins, 16 Eq. 275; Freke v. Lord Carbery, 16 Eq. 461; Noble v. Willock, 8 Ch. App. 778; Cooper v. Macdonald, 16 Eq. 258.
[1 ]Lord Watson’s ablest efforts are: English Appeals: Allen v. Flood, (1898) A. C. 1; Smith v. Baker, (1891) A. C. 325; Scholfield v. Londesborough, (1896) A. C. 514; Johnson v. Lindsay, (1891) A. C. 371; Nordenfelt v. Maxim-Nordenfelt, (1894) A. C. 514; Mogul Steamship Co. v. McGregor, (1892) A. C. 52; The Bernina, 13 App. Cas. 1; Solomon v. Solomon, (1897) A. C. 22; Trevor v. Whitworth, 12 App. Cas. 409; Bank of England, v. Vagliano, (1891) A. C. 107; Ooregum Gold Mining Co. v. Roper, (1892) A. C. 25; Tailby v. Official Receiver, 13 App. Cas. 523; Wakelin v. London and S. W. Ry. Co., 12 App. Cas. 41; London Joint Stock Bank v. Simmons, (1892) A. C. 201; Bradford Corporation v. Pickles, (1895) A. C. 595; Lyell v. Kennedy, 9 App. Cas. 89; Enraght v. Lord Penzance, 7 App. Cas. 240.
[1 ]The following are Lord Herschell’s ablest opinions: Allen v. Flood, (1898) A. C. 1; Nordenfelt v. Maxim-Nordenfelt, (1894) A. C. 535; British South Africa Co. v. Mozambique, (1893) A. C. 602; Bank of England v. Vagliano, (1891) A. C. 107; Solomon v. Solomon, (1897) A. C. 22; Russell v. Russell, (1897) A. C. 395; Smith v. Baker, (1891) A. C. 325; Derry v. Peek, 14 App. Cas. 359; The Bernina, 13 App. Cas. 1; Reddaway v. Banham, (1896) A. C. 207; London Joint Stock Bank v. Simmons, (1892) A. C. 201; Trego v. Hunt, (1896) A. C. 7; Concha v. Concha, 11 App. Cas. 541; White v. Mellin, (1895) A. C. 155; Ooregum Gold Mining Co. v. Roper, (1892) A. C. 125; Trevor v. Whitworth, 12 App. Cas. 409; Alexander v. Jenkins, (1892) 1 Q. B. 797; Mackenzie v. Mackenzie, (1895) A. C. 388; Wild v. Waywood, (1892) 1 Q. B. 783; Tabley v. Official Receiver, 13 App. Cas. 523; Hawthorn v. Fraser, (1892) 2 Ch. 27; Commissioners of Income Tax v. Pemsel, (1891) A. C. 531; London County Council v. Erith, (1893) A. C. 562; Ward v. Dunscomb, (1893) A. C. 369; Barnado v. McHugh, (1891) A. C. 388; Woodward v. Goulston, 11 App. Cas. 469; Makin v. Atty Gen., (1894) A. C. 57.
[1 ]Some of the best specimens of his powers are: Allen v. Flood, (1898) A. C. 1; Monson v. Madam Tassaud, 63 L. J., Q. B. 454; R. v. Jackson, 64 L. T. 679; Derry v. Peek, 14 App. Cas. 337; Membery v. Great Western Ry., 14 App. Cas. 179; Great Western Ry. v. Bunch, 13 App. Cas. 31; London, etc., Ry. v. Truman, 11 App. Cas. 45; Adam v. Newbigging, 13 App. Cas. 308; Macdougall v. Knight, 60 L. T. 762; Cox v. Halles, 63 L. T. 679; Bank of England v. Vagliano, (1891) A. C. 107; London Joint Stock Bank v. Simmons, (1892) A. C. 201; Mogul Steamship Co. v. McGregor, (1892) A. C. 25; Smith v. Baker, (1891) A. C. 325; Russell v. Russell, (1897) A. C. 395.
[1 ]Re Skinner, 3 P. C. 451; Prince v. Gagnon, 8 App. Cas. 102; Re Dillet, 12 App. Cas. 459; Levien v. Reg., 1 P. C. 536.