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