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Bramwell assured the common law man reasoning with large practical sacommissioners, in 1857, that he had gacity and with the facts of life present acted on this advice.
to him; the same clearness and epi
grammatic point. A friend writes on When I was at the Bar I did not pretend this matter: "He attached more importo read them, and my clients knew that I
tance to style than was generally did not read them, and they took me for
thought. Speech or writing be liked to better or worse with notice. But I can
have terse. not serve the public in that way, and I
Length, repetition, read them now diligently and faithfully, diffuseness, though sometimes necesand they require time. ... I read what sary to make an impression on dull I may suppose you may call the orthodox minds, he thought always resulted in reports of the three Common Law Courts, lack of vigor; and the misuse of words namely, Ellis and Blackburn, the Com- he thought led to unconscious exaggeramon Bench Reports, and Hurlstone and tion." Another gift, not less rare, was Norman. I read the Law Journal reports, the courageous directness and the simEquity and Common Law, and I read the plicity of the solutions which Baron Jurist reports. I read over the same case Bramwell in trying cases sometimes very often three times; but, if I do not do adopted. One of his colleagues, writ80, I am not sure that I shall not miss it, so ing to him, mentions this peculiarity, I read it to make sure. If I find upon and adds:reading it I remember it, I do not trouble myself to read any further. . . . I am al- Somebody would ask Paley, “How do most reluctant to call it a labor, because, you account for so and so?" Sir, it is a as I have said before, it is more often to lie! and that is the solution of it,” Paley me an amusement than anything else; but would answer. A judge ought to be firm if it were not an amusement I should still enough to call a lie a lie, and to call upon have to do it. No doubt, if it were not a jury to disbelieve it. The silly twaddle there to be done, one would not do it; so of trying to get something reasonable and that in that sense it may be said that the satisfactory by mixing up truth and falsemultiplicity of reports causes an additional hood together should find no place in a amount of occupation. It may be asked, Court of Nisi Prius. I have sometimes "Why does one not read the same thing thought that, in the Houses of Parliament in duplicate?” My answer to that is that, and in the Courts, there is not enough of if I distinctly comprehend the case when the sternness of truth. In Parliament a I read, I do not trouble myself to read man may say anything, however offensive, it again; but it very frequently happens provided he'll say that the words did not that you find varieties of expression in the mean what they import. judgments, where they have not been considered or written, of such a character
An incident little known in Bramthat it is quite desirable that you should
well's life may be here noticed. The read both reports.
office given, to the great scandal of lawHow many judges before or since yer and laymen, to Sir Robert Collier, have taken equal pains to keep abreast had been previously offered to three of the progress of law! And all this judges. So much was stated in the delabor was expended by a judge who, bates in Parliament in 1872. It was not according to universal admission, was generally known that the appointment a great master of the Common Law. was offered to Sir George Bramwell.
One gift he had to a degree altogether The correspondence with Lord Selonequalled by his contemporaries on borne and Mr. Gladstone on the subject the Bench-the gift of straightforward, is before me, and is honorable to all onentangled speech. A page of Hobbes concerned. Baron Bramwell wished is scarcely more lucid and terse than time to consider; the government asked Bramwell's exposition at its best. His for a prompt answer. In the end he judgments read like nothing so much declined to take the office on the conas happy translations from the Digest; ditions offered. ibe same tersebess; the same sense of a In 1876, when the Judicature Acts
were about to come into operation, he ents that he will not judge them by was made a lord justice of appeal, their public utterances. Statesmen in Whether he showed to as much advan- private re-argued points upon which tage in the Court of Appeal as in the they had disagreed with him in public, court below may be doubted. Perhaps and brother judges laid before him their the fatigue which comes to the strong, troubles. est in the evening of life was settling I am not inditing a panegyric, and I down upon him. But he did good work, do not pretend that all Lord Bramwell and it was said that he kept within wrote was faultless or even of lasting bounds
impetuous colleagues. value. The ethical and economical When he retired he was made a peer. problems which he solved in his trenchMr. Gladstone, in offering him this dig- ant way were probably not so simple nity, said that it would be "recognized as he conceived. Not even the most by the world as no more than a just vigorous intelligence can in such in. tribute to your long service and the quiries rely solely on itself. Bramwell great eminence attained by your abil- was too ready to take as final the first ities and learning," and the chancellor, impressions of his own good sense. He Lord Selborne, added, “Your long and was impulsive, and, like most men with remarkable judicial service, and the firm, set convictions, he did not stop higher personal qualities which have in a letter or a pamphlet to add all so justly earned for you the respect and necessary qualifications. But not a line regard of all your professional brethren, from him is pointless or evasive; there as well as my own, were worthy of the is not a trace of conventional and undistinction which the queen has con- veracious language. He was ever ferred on you."
fighter, a born pamphleteer, with the When Lord Bramwell took his seat in virtues as well as the faults of the race. the House of Lords it was not to sink To the Morning Chronicle in 1841 he con. into inactivity, but to send his energy tributed a letter on Sir Fitzroy Kelly's into new channels, and prove that, as bill for amending the law as to homone of his friends said of him, “the old- icide. The proposal Mr. Bramwell est of us are the youngest.” He dil- thought too lenient and illogical. The igently attended the House, where he letter is closely reasoned, and to the was an unsparing censor of grand- copy before me the author has added motherly legislation in all forms. Not this manuscript note: “This was written a dangerous fallacy could show its head by me with the exception of two parts without bringing down upon it his between brackets, the first of which mace. His many letters in the Times was wrong, the other a blunder.” Or under the signature “B.," his speeches his own writings he had ut a moderate in the House of Lords, and his pam opinion. To the present writer he rephlets on “Drink" and Laissez Faire marked, “I only say what I find other give no adequate idea of the variety of people were about to say." his labors in the last ten years of his He was one of the great masters of life. He was the father confessor, the the Common Law in days when a strong spiritual adviser, and preceptor of judge might do much to mould its many who looked up to him and sought shape. In 1852 the “Statute Book" his counsel-and candid counsel it was, looked much larger than it really was. for he did not believe in sparing, be- Many of the statutes were repealed, in tween friends, the epistolary rod. Peo- whole or in part, or were obsolete; ple of the most diverse character and others dealt with ecclesiastical, fiscal or opinions laid before him their secret technical matters; large regions of thoughts about men and things in lets national life were untouched by legisters which may one day be published. lation; there was plenty of scope for Very widespread was the desire to stand judge-made law, and, with all respect well with him, and curious is the evi- to Bentham, it was not the worst part dent ansiety of some of his correspond- of our law. Lord Bramwell did not
neglect bis opportunity, and he helped lar leniency. No defendant could be to shape in no small degree legal doc- negligent, jurymen must sometimes trines as to negligence, fraud, the law have thought after listening to his sumof agencies, rescission of contracts, and ming-up. There is the story of what is the measure of damages. It was char- known as “Bramwell's Dilemma,” conacteristic of him that he did not bowceived in the spirit of the logical puzzles down before precedents, even if appar- of Zeno the Eleatic: An old woman, ently of the highest authority, when while alighting at a roadside station in they seemed to him irrational. Speak- the dark, fell into a hole and was hurt. ing of a case decided by the House of “Either," said Bramwell to the jury, Lords, he remarked in his evidence be- "she saw or she did not; if she did see, fore the Common Law (Judicial Busi- she herself was negligent in falling into ness) Commission in 1857: “No court of the hole; if she did not see, she was course could overrule it, but it has given negligent in getting out.” In some rerise to as much litigation as could marks on claims for compensation put possibly take place, and the result is forward by sufferers from accidents in that that case has not been overruled, perilous employments, he pressed home but distinguished from it to such an ex- the same argument:tent that if any party now cited it he would be laughed at." Had he had a These cases are in this dilemma: either free hand-had he been in the House there is danger or there is not. In the of Lords in his prime—he would have latter case the fault must be with the left a more durable impression on En
In the former case there is
sufferers. glish law. But he did much to make it another dilemma: either the danger is speak the language of good sense and obvious or it is not. In the latter case the true equity. On some subjects he was he is a volunteer, and has no right to com
sufferer may well complain; in the former undoubtedly-I had almost said avow
plain. (See “Smith Negligence," edly-prejudiced. So often had he seen Appendix B, 2nd edit., p. 279.) the cynical levity with which juries dis. regarded their plain duties when
In regard to not a few questions, wealthy corporations the de. Lord Bramwell was, like many other fendants, that he was led to espouse English judges, disposed to make too their cause with more warmth than was much of supposed implied contracts. seemly. He did his utmost, though in The political theorists of a former genvain, to arrest the development of one eration solved all difficulties by referbranch of the Common Law-the full ring to a supposed original convention. extension of its remedies to corpora
In the pacte social or contrat social was tions. On questions of negligence he the origin of all duties; consult the was opposed, almost to a fault, to popu- clauses of this contract, and the duties
of society to its members, and of them 1 As it is common to speak of Lord Bramwell's to society and each other, would be prejudice in favor of corporations, it is only fair found. It would be easy to show that to mention one striking instance in which he was lawyers, and especially English judges, against them. In certain early casos (e.g., R. v. Pease, 4 B. & Ad. 30, and Vaughan v. Taff Vale have freely resorted to fiction akin to Railway Co., 5 H. & N. 679) it was decided that a that of Rousseau. In assumed imrailway company with statutory powers to use a plied, that is, unreal, contracts have certain form of locomotive was not, in the ab- been sought the origin and extent of sence of negligence, liable for the consequences private duties. Whether A owes repof using such a locomotive; e.g., burning a farmer's stackyard by sparks escaping from the engine. aration to B has been determined by In The Hammersmith Railway Co. v. Brand (L. reference to the terms of a contract R. 4 H. L. 171), Baron Bramwell advised the which never existed. “A bargain is a House of Lords that these cases were wrongly do- bargain” seemed to many judges the cided, and that in his view the legislature had not last word of jurisprudence; and often gired companies, by implication, power to destroy private property. The majority of the law lords they created that bargain when they
could not find it. In Lord Bramwell's
took a different view.
judgment in Smith v. Baker he speaks able to explain to him or any one else. thus bluntly of the argument that a man With the over-refinements of some of who had voluntarily accepted certain the later developments of political risks, and had been injured, should not economy he had no patience. To him,
as indeed to most thinking men of his
generation, the question of questions It is said that to hold the plaintiff is not in politics was the true province of the to recover, is to hold that a master may State. His answer was clear. “Please carry on his work in a dangerous way and govern me as little as possible,” was damage his servant. I do so hold, if the his daily petition. He was not in favor servant is foolish enough to agree to it. of municipalizing everything, and he This seems very cruel. But do not people looked forward with no delight to go to see dangerous sports ? Acrobats
“Liberal lamplighters and Conservative daily incur fearful risks, lion tamers and the like. Let us hold to the law. If we
turncocks.” “Socialism will never do
until are honest as the bees.” want to be charitable, gratify ourselves out of our own pockets.
“Hands off; away with your meddle
some inspectors and grandmotherly Lord Bramwell was not a law re- statutes," was the refrain of most of his former in the sense in which was Lord pamphlets. He did not argue the cause Westbury or Lord Langdale. He was of Individualism with the precision of never in the House of Commons, and he Humboldt, Spencer Mill. The had little time, when at the Bar or on strength of the advocates of an extenthe Bench, for constructing amend- sion of the functions of the State is that ments of the law which he admin. society is not a crowd of units, but a istered. But he was no superstitious true organism; that the whole comadmirer of the system under which he munity is a unit; that the parts are grew up. He had learned much from interdependent; that strict adherence to Bentham. The services of that re- laissez faire resembles a state of war former are acknowledged in a passage among the organs of the body. Of arguin the report of the Common Law Com- ments or analogies drawn from biology missioners, no doubt from Mr. Bram- in favor of modern Socialism I can rewell's pen. He had as much to do as call 'no trace in Bramwell's writings or any one with the introduction of the talk.
But no one pointed out more principle of limited liability; the word clearly than he did the perils from sa “limited” after the name of every com- cialism to things which he valued above pany under the Company Acts of 1862 all others: self-reliance, and freedom and 1866 was a recommendation of Lord to think, act and speak, without interBramwell. He also carried out several ference by Parliaments or inspectors. valuable, though unobtrusive, improve- Against an unreasoning rush to State ments in commercial law.
Socialism no one fought more sturdily Music and political economy were his than Lord Bramwell. But he, who was favorite recreations. He had read always ready to write a pamphlet for Adam Smith and Ricardo, and he stuck the "Property and Liberty Defence to the doctrines he had learned from Association, was the author of the them.' He did not believe that political aphorism that every good man had at economy came to an end some time one time been a Socialist. He owned to about 1873, when Mr. John Stuart Mill “a sort of sneaking liking for Socialdied. “Political economy has been ism," and could write, “I have no called a dismal science. It has been superstitious reverence for the institucalled inhuman and unfeeling. The tion of separate or private property. same epithets might as well be applied Show me that its abolition would be to Euclid's Elements or to a treatise on for the greater good, and I would vote brewing or baking." He would have for it, letting down the private posno tampering with free trade. Bimet- sessor gently." No one in the discusallism, he said, no person had ever been sion on the nationalization of land put
the case against it more tersely or can. think he can set the world right and teach didly:
it if he howls robbery loud enough. Oh, they say the land should be This is the way in which Bramwell nationalized because it is God's gift. ... refutes Mr. George's argument that Are not the ploughs and the harrows and poverty has come with so-called progthings generally God's gifts? These things are given to us, and the skill to fashion them; and if the land is to be Mr. George might just as well say that nationalized for that reason, why not the sugar hogshead at the grocer's door
has brought forth the flies and the ragged clothes, and why not labor? Why is not labor to be nationalized, and why should children that are about it. Did it never
occur to Mr. George that the large cities we not get straight into the thick of Socialism at once? This is what this and places where the locomotive has been, argument points to, and to this alone. I and where wealth is to be found, attract confess I have for my part a sort of sneak. the idle, the weak, the dishonest and
thriftless? Does he not know that the ing liking for the doctrine of Socialists. I wish we could have it. One can but
reason they are not found where the
Anglo-Saxon is just beginning a race of sometimes feel how much better off one is than the man who gets a few shillings a
progress is because the existence of week, and works hard for it. One would Anglo-Saxon vigor is unpalatable to them? like to see something better; but the truth Mr. George makes the common mistake of
those who boast the virtues of the rural is we are not good enough for Socialism. If we were as honest as bees, and all districts. Why is there not a professional worked our best for the general good, there is no scope for his trade; there are
pickpocket in the small village? Because Socialism would be a possibility. It is not a possibility until we are. The best thing
not pockets enough for his industry. Why under the circumstances is to let each other is there no tramp, no beggar? Because alone. Let each man add to the general there are not enough persons of whom 10
beg. pile—I think that is the expression of the Americans-all he can; ana then we shall
Lord Bramwell's tastes and pleasures have a larger pile to divide for the general
were of the simplest kind. He was a good.
good musician. The musical evenings In polemics he met courtesy with at his house were pleasant, and he himcourtesy, and, it must be added, blows self took delight in joining in a glee or with blows. Here is how he disposed part song. He loved to travel, and had of Mr. Henry George's theories (Nation- seen no small part of the world. Of alization of Land, p. 3):
late years, when the sittings of the
courts were over, or as soon as he had It (Progress and Poverty) is a mis- returned from circuit, he would go to chievous book, for it holds out expecta- his house at Four Elms, near Edentions that cannot be realized, and proposes bridge. Always an early riser, he their realization by measures most in- would, except in midwinter, be by jurious. It is a foolish book, for, though seven o'clock at breakfast, with one or Mr. George is anything but a foolish man, his ingenuity is so perverse that his book hearthrug beside him. In an hour or so
more of his dogs stretched on the is filled with foolishness. It is the most
he would be strolling round his garden, arrogant, self-sufficient performance ever :seen. No one was right before Mr. George, looking at his hothouses, his chickens, and some of the best, greatest, and noblest and the ducklings of a tufted breed men who ever lived are spoken of with peculiar to the neighboring stream, a contempt as blunderers and evil disposed. tributary of the Medway. A game or It is also a book which one would think two of billiards, of which he was fond, was the work of an ill-conditioned man.
or an hour spent at the piano or over a According to Mr. George nobody is mis. volume, would help to pass the morntaken and honest. Robbers and robbery ing. In the afternoon came perhaps a are his favorite words, and he seems to drive up Toy's Hill and a halt to take