« PreviousContinue »
article will be confined, after a slight sketch of his career, to an attempt to bring into prominence some of the phases of his character which have not always been fully appreciated.
Of his early life it need only be said that he was the son of the Reverend Joseph George Brett, of Ranelagh, Chelsea, and that he was born in 1815, at the rectory of Lenham, in Kent, and educated at Westminster and at Caius College, Cambridge. His first laurels were won on the river. He rowed three times for his University against Oxford, and we can imagine the confidence which he inspired amongst his fellows by his stalwart frame and fine courage. Called to the Bar in 1846, he joined the famous Northern Circuit, where he acquired that wide knowledge of commercial law and " business" which stood him in such good stead on the Bench. There, too, he learned that admiration for the wisdom not to say infallibility of juries, which, as will hereafter appear, he carried, in the opinion of many, to excess.
His great antagonist on Circuit was Mr. Edward James, Q.C., one of the finest advocates whom the English Bar has ever produced. In the old Admiralty Court before Dr. Lushington he acquired a sound knowledge of maritime law.
He took silk in 1861 together with Baron Cleasby, Lord Justice Baggallay, Sir John Karslake, Lord Coleridge, Mr. Justice Denman, and Lord Justice Mellish, and afterwards became a Bencher of his Inn. After unsuccessfully contesting Rochdale as a Conservative against Mr. Cobden and again on the latter's death against his successor Mr. Potter, he entered Parliament in 1866 as member for Helston. election resulted in a tie between him and Mr. Campbell, for whom the mayor gave an irregular casting vote-but Mr. Brett was seated on petition.
In 1868 he seized the opportunity offered to him of bringing to the service of Mr. Disraeli's Government the knowledge which he had gained as a revising barrister, especially in relation to the thorny question of the “compound
householder," and it was thus that on the promotion of Sir Charles Selwyn to be a Lord Justice he became SolicitorGeneral.
In this latter capacity, with Sir John Karslake as AttorneyGeneral, he took part amongst other cases in the prosecution of the Fenians for the Clerkenwell explosion.
He remained a law officer only for six months, for in August, 1868, he was appointed a Judge of the Court of Common Pleas, the Parliamentary Election Act having led to the appointment of an additional judge to each of the Common Law Courts. We have not dwelt upon the details of Sir W. Brett's forensic or parliamentary lise, because it is by his long and distinguished career on the Bench that he will chiefly be remembered by the men of the present generation. This too was his ambition from the first, and explains his readiness to take a puisne judgeship. After seven years in the Common Pleas, Mr. Justice Brett was in 1876 made a Lord Justice of Appeal under the new system created by the Judicature Act, and had as his first colleagues Lords Justices James, Mellish, Bramwell, Thesiger, Cotton, and Sir George Jessel, succeeding the latter as Master of the Rolls in 1883. Thenceforward for fourteen years he usually presided in the Court of Appeal, or, at all events, in Court No. I., which he ruled with an undisputed sway, sitting, amongst others, with Sir Edward Fry, Lord Ludlow (then Lord Justice Lopes), Lord Bowen, Sir E. Kay, Sir J. Chitty, and, for a short time, Lord Davey.
Opinions were divided both as to his methods of arriving at justice and as to the pleasure of arguing in his Court. To some the Master of the Rolls seemed hard and uncourteous, breaking in upon the arguments of Counsel with every sort of criticism both of form and substance in a manner not a little disconcerting to any one not accustomed to the rough-and-tumble of the profession. On the other hand, those who watched closely his process of threshing out
a case could detect in his method neither unkindness nor unfairness.
His modus operandi was intelligible, and would have been defended by himself in some such language as the following:
Here is an advocate, full of strong asseverations of the righteousness of his client's cause. He must be brought to his bearings. He must be made to face without disguise or dissimulation the real points at issue. If he makes general statements, he must be forced to condescend to particulars. If he exaggerates, the absurdity of the exaggeration must be ruthlessly exposed. His arguments must be pushed to their logical conclusions, and he must deal as he goes along with questions put in order to test the validity of his reasoning.”
Whether the dignity of the Court was always sufficiently kept in view during these discussions is open to considerable doubt, but as regards the results, given the requisite amount of courage and clear-headedness on the part of the Counsel to pass well through the ordeal, truth and justice as a rule ultimately prevailed.
Nor were there wanting Counsel to whom the excitement of the contest conducted on such lines as these was a stimulus and a delight. To the bystanders it might seem that to fight hard before Lord Esher was a thankless and an unwelcome task which might break the spirit of the most courageous and confuse the thoughts of the most clear-headed. And undoubtedly there were many in the Profession to whom the necessity of arguing under the conditions above described was distasteful and disheartening, and there are and ever will be cases to which this new application of Socratic dialogue is unsuited. But to those who entered into the spirit of the strife there was exhilaration in the very thought of one of those " field days” in Appeal Court I. They knew that when Lord Esher was most fiercely attacking them he entertained no unkindly feeling towards them personally, but
all the time favourably appreciated their energy, their skill, and their courage, and never lost an opportunity in or out of Court of expressing his warm admiration of their efforts. “You are a splendid fighter," he would say to one; and to another, “You are quite right to fight us hard; it is your duty."
Moreover, it must be borne in mind that he treated all alike. It is a calumny on his memory to say that he bullied the young and timid Barrister and abstained from tackling the leaders of the Bar. On the contrary, he ever strove to bring out and to encourage, both in Court and in private, the young beginner, while he put forth all his powers to circumvent the wily and experienced veteran. And he pursued his habit of testing the arguments consistently and impartially. Often has the Counsel who did not expect to be “called upon ” found himself in a similar position to that lately occupied by his adversary, and has had to face at least as rigid a process of catechetical tests.
In short, there was nothing really personal or offensive in the interruptions of Lord Esher. He played, and expected every one to play, according to the rules of the game; that was all. And when his judgment was delivered, whether right or wrong, what strong common sense and logical force it usually exhibited! With what confidence and ease he pulled himself together and stated from memory the salient points of a complicated case, the principles of the law as he understood them to be applicable, and the conclusions at which he had arrived!
That his decisions, when appealed against, were not unfrequently overruled by the House of Lords is true; but on the other hand, a vast number of commercial and other cases was annually disposed of by him, and his judgments accepted by the community as being in harmony with the views of both lawyers and men of business. The opinion of this latter class was in his mind of inestimable value, and it was
to the importance which he attached to it that we can probably trace the extreme confidence which he placed in, and the extraordinary deference which he always paid to, the verdicts of juries, particularly of Special Juries in London, Manchester, and Liverpool, and the other great centres of commercial life.
This is not the place to discuss the merits cr demerits of, or the limitations which ought to be placed upon, the system of trial by jury in Civil Cases. But there is a general consensus of opinion amongst professional men that, during the reign of Lord Esher, the Court of Appeal went too far in accepting the finality of verdicts.
He used to say “ if twelve reasonable men could reasonably find such a verdict" it ought to stand. This rule (construed with great latitude as to the meaning of “reasonableness ") gave to the verdict of a jury greater weight than would be attached to the decision of fact on the part of a judge ; and yet the Court of Appeal, though reluctant to upset a judge's finding of fact, have often done so on the ground that the finding was against the weight of evidence, though the Judge of first instance might reasonably have found as he did. Moreover, the judge's reasons are always given, and are open to criticism, whereas the reasons which led the jury to their verdict are unknown. And it seemed as though the Court of Appeal under Lord Esher invented for these twelve silent jurymen all sorts of imaginary grounds for their findings in order to support them, and ignored the probability of their having been affected by any matter of prejudice. The result was that it became practically impossible under Lord Esher to obtain a new trial on the ground that the verdict was against the weight of evidence, and the new trial paper dwindled to a vanishing point; and thus in the opinion of competent persons cases of failure of justice remained unredressed, owing to the attitude of credulity adopted by Lord Esher and his colleagues towards the ipsi dixerunt of the