remedy your inexperience, should so far forget himself as to ignore the golden rule ‘Hear the other side,' fills me with astonishment and indignation." Campbell, it is only just to add, summed up with perfect impartiality, and the defendant succeeded.

any one to do so. But as to the general question, supposing circumstances easy. First, if two people are desperately in love, they are beyond advice or reflection. So, if they fancy they are. But the more common case is, where a man meets various women, feels a little inclination here and

Mr. Bramwell married early; indeed, there, and finally a decided little prefer

it must be recorded that he, a master of practical wisdom, married, as his friends thought, imprudently. It is characteristic that he who discussed everything also discussed in his note books the question, interesting to all the sons of men, whether marriage is a necessity to a complete life, and that he put both sides with fairness and force. Perhaps in literature are not many franker discussions of the problem than the following. Apropos of his own marriage and that of a friend, he argues with himself the question whether marriage is "really the pretty thing we fancy, neither a pis aller nor a mere object, a thing which, from not having, we want."

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Why should I doubt ?* I've tried. Truly if my case decided the question the answer would be short. It would answer it for another (case) like its own; but how often does it occur? Passion in each, excessive, undoubted in one at least, and returned as well as man can return it by the other. Then I venture to say that we had. qualities to like and admire forever in the other... Without an acquaintance, no visiting, no gaiety, all friends and relations quarrelled with, thrown entirely on our own mutual affection, and that very circumstance, combined with poverty -the feeling of having acted imprudently in the worldly (and true) sense of the word, and pride, an honest, stern pride of independence, the resolution to show those friends and relations that our independence was not imprudence-who knows the effect of these things? No; my case is no precedent even for myself.

March 20.-The part with the* (the passage above quoted) is a blunder. Intending to consider the question generally, I was led by thinking of my own case to do so in a particular point of view only, and that the least favorable one, viz., poverty, and that I would not try again, nor advise

ence for one; what had he better do? Cultivate it? Fall in love all he can? or shut himself up in himself? I assume that he has no reason to suppose that he cannot make himself acceptable, and that the object of his penchant is of average amiability, and so forth, or rather of the same rank in these matters as himself, worthy of him, he worthy of her; what's to be done? I believe this question, like all similar generalities on men, national character, etc., incapable of a precise answer. You had better form a specific opinion for each individual. But had I, without knowing my man, to advise him, I should say "Fall in love and marry," for many reasons. While a man is unmarried he can always get married; not SO e converso. This possibility of change must always prevent that settled feeling which the married man has. It must, as I say, always make one treat "present blessings," which are the true joys of life, as temporary only, and so deprive them of their real value. But, besides this, I believe every man to have a faculty of liking, which is a passion, and, ungratified, a most painful (one) like others. No father, mother, or friend suffices for the appeasing of this-a wife or a child may. However tender one's regard may be for the first-named, it is stern and hard compared with the doating-silly if you will-love you bear a child, or which a few may feel for wife or husband. And even those who cannot feel passionate love must be more intimate friends with wife or husband than any one else. Therefore, I say marry. It will be said, "This is one side of the question only. But think of sickness, death, ill-humor, infidelity, bad, stupid, deformed children turning out ill, hanged, transported, bankrupt, etc.!" I know. All I can say is, I think it worth the risk.

Some may say, A low plane of thought! The reflection of others will be, What an antidote to much mawkish literature on this subject; and how much purer and even loftier than senti


ment, trivial and common,

tricked out in fine words!

though was that this technical rigor, characteristic of primitive times, had so long survived. The change brought about by the Common Law Procedure Acts was not accepted with universal satisfaction. There were murmurs which sometimes took a humorous form. Arnould, the Home Circuit laureate, already quoted, wrote some jingling verses entitled "Bramwell, his Dream," in strains a little too Rabelaisian to be cited entirely. A phantom crew of "Demurrers,” "Rules to Compel," "Nuncs pro tunes," and other horrid forms appear, and hurl reproaches at Bramwell as a traitor to his order.

In 1850 there existed profound dissatisfaction with the working of the Common Law Courts. The system of pleading had become out of harmony with the age. Lawyers were becoming tired of the tyranny of Baron Parke, and beginning to scoff at the wisdom of Meeson and Welsby. There was a general desire to see justice done even at the expense of the record. The jurists who said, "To be sure the man owes the money; but how make up the posteà?" were passing away. Lord Cranworth resolved to set on foot an inquiry into the working of the Common Law Courts, and among the commissioners whom he chose were Mr. Willes, who, after having made a reputation at Trinity College, Dublin, had acquired a large practice, and his friend Mr. Bramwell. Both of them took great pains with their task. They did not confine themselves to the enunciation of general principles; they elaborated the details of the proposed changes; they penned the clauses of a bill to give effect to them. They even visited America one long vacation in order to study on the spot the new procedure of the State of New York. To lawyers of the present day it is not easy to appreciate the effect of the Common Law Procedure Acts, the outcome of this inquiry. A whole world of learning was rendered as use less as the rules of astrology alchemy; mountains of rubbish were removed; a new spirit pervaded the courts. To judges of the school of Parke and Holroyd, litigation had been very much like a game of cards or chess. There must be perfect fairness. But above all there must be no revoking; and whether a victory was won by tricks or honors mattered not. This, as the history of jurisprudence laws shows, is a stage through which all systems of law pass. Among some savage tribes it is forbidden to mention one's mother-in-law or one's wife's relations. The archaic rules on the subject are as strict as, and not unlike, those in English law relative to misjoinder. The peculiarity of our law

Yon great ghost who gloomily flutters-
Veil your eyes-is the awful spectre
Of what was once the casual Ejector.
That lathy phantom you see afar
Was once, thou Traitor, the Common Bar.
And yon brown blotch-none now can be

Looked cheerily once as Express Color.
There Trover flits, etc., etc.
"But thou, who hast risen and thriven
At, in, and by that which thou now

wouldst destroy

Thou"-and here the din so furious grew, And the grisly host, with such fierce joy In their cruel eyes, at Bramwell flew, That he well-nigh woke.

Mr. Bramwell's friend and fellowwas apcommissioner, Mr. Willes, pointed a judge in succession to Maule; and in 1856 Bramwell became Parke's successor in the Exchequer. "I am sure I cannot be wrong in appointing you," said Lord Cranworth, in conveying to Bramwell the news; and even that most exacting of critics, Baron Parke himself, was satisfied, for he wrote: "I rejoice much to hear from the chancellor that you are to supply myself on the Exchequer. No appointment could be better. May you sit there, or in a higher place, as long as I have done, or longer. You will find the judicial seat eminently comfortable." Parke thought well of the appointment; so too thought all who knew Mr. Bramwell. What perhaps they did not perceive so clearly as is now possible was the significance of the appointment-the fact that the

succession of Bramwell was indicative of a great change coming over English law. Of Parke and his influence a word may here be said. For about twentyeight years he had been on the Bench; and he had left his impress on English law as had done no other Common Law

Judge since Mansfield-unfortunately an impress of an opposite nature. Many merits Parke had-a singleminded desire to administer the law as he conceived it; acuteness, terse, luminous, and precise expression, and learning of a kind, and within certain narrow limits. But his influence, as a whole, it can scarcely be doubted, was evil; he aggravated and perpetuated much that was bad in our legal system. He did mischief by his well-meant endeavors to give, undismayed by consequences, greater strictness and rigidity to legal rules than the affairs of men admit of. "Think of the state of the record!" was the answer of the school reared by Parke to those who would attain the great objects for which courts, law and lawyers exist. His historical learning and that of his still more erudite contemporary, Mr. Justice Willes, were not always of a gründlich character. Their acquaintance with the reports was prodigious. Both of them knew the Year Books, and the manuals and text-writers of the sixteenth and seventeenth centuries. But of much of that real history of the law of England which scholars such as Professor Maitland are bringing to light -that which is to be found outside textbooks and reports, in early charters, in the proceedings, for the most part, still unprinted, of local courts, in the court rolls, and in the despised "Chronicle law"-they perhaps knew no more than some of their contemporaries; probably less than one of them, Mr. J. W. Smith, the gifted author of the "Leading Cases," who united to indefatigable industry an insight into the true history of England marvellous, considering the

materials accessible to him. Professor Vinogradoff, in his work on "Villenage in England," remarks:

Facts are brought into a system by

Coke, but the system is strictly a legal one; undigested historical knowledge is made to yield the necessary store of leading cases, and, quite apart from the naïve perversion of most particulars, the entire view of a subject is entirely opposed to historical requirements, for it makes the past an illustration of the present, and regards it as planned on the same lines.

No better example of this tendency to look for the present in the past could be found than in some of Parke's judgments. All of his contemporaries, it must be added, did not overrate him. One who knew him well thus expresses, in a letter to Lord Bramwell, his opinion of the legal autocrat of 1850:

Parke was not a great man at all. He was a very considerable one. His intellectual powers were like the explosive compositions called fulminatory - very powerful within a limited space. He was a very kind, but not a generous, man. He gave his sympathy freely; not as the bishop gives a blessing, because it costs nothing, but because he had really a kind heart. . . . The case of Ellen v. Top1 (I think that is the name of the case), about an apprentice, is the best sample I know of Parke and Rolfe, and the triumph of law above common sense in small minds. Parke . . . cited the case of a sale of a West Indian estate with a few slaves wanting, and introduced the doctrine of the objection not going to the whole consideration. Rolfe (cujus in corpore pusillo mens est magis pusilla) turned round and

adopted Parke's view. In the mean time,

Wilde made Rolfe a vice-chancellor, and Martin, with his sound law, and, I had almost said, if possible sounder sense, came into the court. The case was stated to him by Parke, and was answered by a contemptuous "Pooh! nonsense!" to Parke's great astonishment, and the court was saved from the disgrace of Parke's judgment.

He (Parke) never thought a judgment perfect unless it referred expressly to every decided case that in any degree bore

on the question. I once asked him what

judges and advocates were to do two hundred years hence. His reply was, "They must do the best they can when that time comes. At present I think a solemn judgment should refer to every case.' His

1 6 Ex. 424.

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notion of law was entirely made up of cases. In short, it was the law of cases, and not the law of principles. Bayley (Sir John) at Nisi Prius had a desire (I think quite insane) of endeavoring to reconcile all the evidence, and would adopt that view of a cause which seemed to do 80. So Parke was for reconciling all the cases (Heaven help him!), and thought a decision that would seem to do so must be right.

mon Law, Sir Fitzroy Kelly, presided in the Court of Exchequer. When he was appointed, he wrote in his old-fashioned formal way to his pupil:

I accept your offer of allegiance much as an emperor of Germany or Austria would take fealty, suit, and service from a king of Prussia. Don't, however, be a Count Bismarck with me; and I shall take instruction and learn jurisprudence and practice from you, as you did from me some six-and-thirty years ago.

Of rarely equalled ability as a lawyer, Kelly came too late to the Bench to attain eminence thereon, even if he had naturally possessed the involuntary, unconscious impartiality of an admirable judge. Of Watson and Pigott, two other occupants of the Bench in Baron Bramwell's time, little need be said; the former was a member of the Court only for a short time; the latter has been described as courteous, harmless, and unimportant. All things considered, Baron Bramwell towered above most of his colleagues; certainly no one was equally good at Nisi Prius and in Banc, in trying a prisoner or deciding a civil action. One who knew him well, professionally and otherwise, writes:

The business in the Court of Exchequer when Mr. Bramwell became a member of it was larger than that of the two other Common Law Courts. In the seven years beginning 1850 the average number of cases tried in the Queen's Bench, Common Pleas and Exchequer was 433, 324, and 495. One or two of his colleagues were men of mark. Chief Baron Pollock abounded in varied, discursive vigor and intelligence, not inconsistent with indolence. He was fond of mathematics, chemistry, and mechanics; he loved to discuss Darwin's theory, or Buckle's book, or the last lecture at the Royal Institution; he was not very prone to dwell on, perhaps he did not care to be very conversant with, the minutiae of English law; his was altogether a very capable intelligence, not the less useful because he was not lifted above the earth by too many subtle ideas. Martin, his son-inlaw, was firm-set, erect, matter-of-fact, and incisive; quick to catch the sympathies of a jury; justly beloved by all who knew him; impatient of technicalities; always eager, as one of his colleagues said, to get through the rind of the orange as fast as possible, and wont to come crashing in upon subtle arguments with some such remark, thundered out in a strong accent, as this: "The man has got the goods; he ought to pay for them." Channell was a sound lawyer, somewhat dull, and, it was said, with a depressing knowledge that he was dull, who was successful in the days when the Common Pleas was the close preserve of the serjeants. On the Bench he distinguished himself Chiefly by his severity to burglars, garotters and such-like gentry. Mr. More than once his strong, clear Bramwell's first instructor in the Com- words of direction to juries had effects

A prisoner before Lord Bramwell always had a fair and full chance, but if guilty rarely escaped. His voice and manner were singularly impressive, and when passing sentence he rarely failed to add a few words of kindly advice and exhortation, which were often not without effect upon those to whom they were addressed. In court he was the central figure; held the reins and directed the case. However eminent the counsel who appeared before him, the jury looked to him for guidance and direction.

Another friend, who had practised many years before him, recalls how often to nervous and bewildered prisoners he spoke in some such terms as thes: "Do yourself justice, and tell us boldly what you want the jury to know. What have you got to be afraid of? Take your own time; we don't want to hurry you."

far beyond the case with respect to which they were spoken. It fell to him, in 1867, to try certain workmen charged with intimidation in carrying out a system of picketting. Bramwell spoke with earnestness and emphasis, and in the plainest words of this practice. He blurted out the indignation of an honest mind against tyranny; and the moral effect of his statement of the Common Law was immense. Chief Justice Erle wrote to him with enthusiasm of the terms of his direction:

They are spoken by a seer; they are adopted by the strong minds of the time, and they have made the law clear that picketting, such as you tried, is not lawful. Go on and prosper, strong as that noble mastiff of your own.1

Perhaps no judge was ever more at home with a jury than Baron Bramwell; and if the case were intricate, and the special jury an unusually good one, a trial under his guidance was all that a lover of justice could desire. He was not blind to the faults of juries. "If juries had to give the reasons for their verdicts," he once said, "trial by jury would not last five years." He did not think a jury of farmers, “who are very much fatigued from being taken and shut up in a hot room," were so capable judges of facts as men trained to sift and weigh them. But the institution was to be defended if only because it popularized the administration of the law. Once, when arguing in the House of Lords, he was asked how people could enter into so stringent a covenant as that which he suggested; he answered, "My lords, they will trust to that true Court of Equity, a jury, which, disregarding men's bargains and law, will decide what is right in spite of all you say to them." And very strangely, as his own experience showed, might this "true Court of Equity" act. He was never weary of denouncing the persistent unfairness of juries to railway companies; and he well knew their ability to misunderstand everything done and said by judge, counsel, and witnesses. With the assistance of a A reference to a favorite dog.

special jury, he once tried at assizes an action of trespass or ejectment, the question in dispute being whether the lord of the manor or an adjoining owner was entitled to certain strips of land at the side of a road. Maps, plans, and conveyances threw little light on the matter, and many witnesses were called to prove acts of ownership. One of the witnesses was the surveyor of highways. The evidence was nicely balanced, and the learned baron took great pains to sift it, and to explain to the jury the effects of the acts proved. To his surprise, they promptly and confidently, in this obscure and difficult

case, returned a verdict for the defendant. On leaving the assize town, the judge found himself in a railway carriage with one of the special jurymen. "Well, you gentlemen," he said, “had not much trouble in arriving at a verdict." "Oh dear, no!" was the reply. "After your summing-up as to those acts of ownership, it was quite clear to us that the real owner of the land was the surveyor of highways!" The jurymen had not the excuse for blundering that Baron Bramwell was long-winded and tedious, or that he leavened his summing-up with dogmatism about matters unconnected with the business before him. He could be concise and pithy-he could not be anything else. In the memoir published at his death in the Times are some instances of his terseness. Here is another told of him by the late Mr. Justice Archibald. A prisoner was tried before the baron on a charge of stealing a ham. The day was hot; the counsel were loquacious; the audience perspired, and so did the ham, the presence of which made itself felt in court as the day wore on. At last, every one being weary, came the judge's turn to sum up. He did so thus: "There, gentlemen, is the prisoner; and there, gentlemen, is the ham. Consider

your verdict."

Few judges had more interest in their work or a higher idea of what was needed for the performance of their duties. Lord Wensleydale had told him that no judge who did not read the reports could do his duty; and Baron

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