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jury, and their consequent reluctance minutely to review the evidence and consider it de novo.
It is submitted that in this respect the late Master of the Rolls, with the best intentions, hampered the remedial action of the Court of Appeal, and it is hoped that since his time the grievance above complained of has to some extent been removed.
Whatever difference of opinion may exist as to Lord Esher's methods, no one ever doubted the absolute rectitude of his aim. To his friends he used to say, “I don't know whether I do justice; but I'll take my oath I try with all my might to do it.” And this not unjustifiable boast was repeated by him on the occasion, presently to be referred to, of his public farewell in the following terms: "Never on one single occasion, at any period of my judicial career, have I done anything except try from the beginning of each case until it was ended to get at the truth of the matter."
Mention has already been made of his great kindness of heart. He was very tolerant of the weaknesses of human nature, and in dealing with crime and with professional misconduct of solicitors he strove to admit excuses and to mitigate punishment. In short, the justice which he administered was always "tempered with mercy.
Another admirable trait in the character of the late Master of the Rolls was his generous loyalty towards his colleagues. Nothing caused Lord Esher to fire up more warmly than any attack made by Counsel on the fairness and impartiality of the judge whose decision was impugned.
Outside the Court he ever evinced the keenest love and affection for his profession and all its members, from the highest to the lowest.
He always spoke of himself as still a barrister and "one of us," and "only one of our equals,” and he showed his sympathy for those who had been less fortunate than others
in the race of life by warmly supporting the Barristers' Benevolent Association.
At last, in 1897, after being a member of the legal profession for fifty years, thirty years of which he spent upon the Bench, Lord Esher retired amid the good wishes of all his brethren, receiving at the hands of Her Majesty the unique honour of a Viscountcy.
The scene of his farewell, on the 15th of November, 1897, was onc never to be forgotten by those who witnessed it. Surrounded by all his colleagues on the Bench, and by a large gathering of members of the Leading and Junior Bar and of the other branch of the Profession, the “Grand Old Man" of the Bench said his last public words to those amongst whom the best years of his life had been spent. His address breathed a spirit of affectionate regard towards those whom he was leaving, together with a not unnatural feeling of satisfaction at the completion of his life's work, and at the appreciation of his services, shown particularly by the high honour bestowed upon him by his Sovereign. He sought to encourage the younger men, by a retrospect of his own career, to aim at the highest judicial offices. He had, he said, from the first determined that he would obtain a seat upon the Bench, and he advised others, in spite of all discouragements, to persevere to the end. Speaking of checks which had occurred from time to time in his career, he added, “But I always said, Never mind; I will get to the top if it is possible to do so."
Nor must we omit his touching allusion to Viscountess Esher : "There is another circumstance which I hope exists with many of you, that whenever there came a check or whenever there came a difficulty, I had by my side one who assisted me with wise counsel and who is the principal cause of my success in life.”
Thus we had a bright glimpse of the happy domestic life which Lord Esher enjoyed outside the struggles of the profession.
Nor was there wanting in that farewell speech a higher note still, when he spoke of his retirement as desirable so that he might have time to prepare himself for a still greater change. "I thought it right,” he said, “that there should be a period of absolute rest in order to prepare for the next stage.” And within eighteen months that final stage was reached, and found him, we hope and believe, not unprepared.
He will be remembered by many as a firm and faithful counsellor, ever ready to help with his advice and influence those who were fortunate enough to be admitted into the circle of his friends.
In conclusion, any attempted estimate of Lord Esher's judicial work would be incomplete without reproducing in his own words the standpoint from which he approached each legal problem. “The law of England,” he said, "is not a science. It is a 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 honour, candour, and fairness in the position of the two parties would apply in respect of the matter in hand.” And, again, in dealing with decided cases, he spoke of "trying to find in the reports of decisions the mode and manner in which the judges have stated the rule of conduct of the Court. And that,” said he, “is what is called authority.” And once more, “There is no such thing in law as a rule which says that the Court shall determine that to be true which the Court believes and knows to be untrue.” These utterances exhibited at once the strength and the weakness of Lord Esher's judicial attitude. It was strong in that he placed himself above all technicalities, and set himself with might and main to solve the particular conundrum brought before him by the light of nature, assisted by the artificial light of authority. It was weak in that he declined, nay, almost disdained, fully to study and systematize the
principles of the common law as scientifically deducible from the accumulated wisdom and learning of his predecessors.
In short, the position occupied by Viscount Esher amongst the jurists of the nineteenth century is one as to which opinions will differ, and which must be left to posterity to decide.
But none who knew him with any degree of intimacy, either in his public or in his private lise, will refuse to accord to him a distinguished place in the ranks of his contemporaries as an honest and upright judge, and a genial and accomplished English gentleman.
A. R. JELF.
III.-RECOLLECTIONS BY A MEMBER OF THE
IR BALIOL BRETT had been for several years a
judge before most of the present practising members joined the Northern Circuit. A few still remain who were his contemporaries. Those who joined the Circuit in the early seventies knew of Sir B. Brett at the Bar as he was described by the older men who were his rivals and his friends. They had heard of him competing with Milward for defences in the Crown Court, and slowly pushing his way into practice in the Passage Court. The traditions of the Circuit represented him as a jovial and popular member of the Circuit mess, who soon became a formidable advocate in Court in commercial, and especially in shipping, cases. The position he eventually gained on Circuit was the best testimony to his strength, courage, and ability. He had to struggle with such formidable opponents as Edward James, Stephen Temple, and Milward.
He attributed, and no doubt rightly attributed, his elevation to the Bench, and his success as a judge, to his Circuit
training, and he never missed an opportunity of expressing his obligation to, and his affection for, his old Circuit. The younger members of that Circuit saw him in his most attractive mood when, at a Circuit dinner, he recalled his early struggles, friendships, and successes on Circuit.
The public opinion of him was probably nearly expressed in the cartoon which appeared in Vanity Fair, in which his attitude on the Bench is reproduced with just that exaggeration which makes caricature effective. Before his elevation to the Court of Appeal in 1876, he had acquired the reputation of being a strong and rapid judge at Nisi Prius, and an eminent commercial lawyer. This reputation is justified by. several judgments which he delivered in the Common Pleas, the Exchequer Chamber, and the House of Lords. Perhaps one of the best examples is the judgment in Hollins v. Fowler, in 1872, which Chief Baron Kelly correctly described as “logical and exhaustive.” After his elevation to the Court of Appeal, he occasionally went Circuit, and tried non-jury cases in London, but with these exceptions he was seen at Nisi Prius no more.
Probably his most effective judicial work was done when he sat in the Court of Appeal, presided over by Lord Justice Bramwell. The work of that Court was never done more expeditiously, efficiently, or smoothly, than it was when the presiding judges were Bramwell, Brett, and Cotton, L.JJ. From 1883, when he became Master of the Rolls, he presided in the first Court of Appeal, and there his great influence over his colleagues, including such courageous and brilliant judges as Bowen, Fry, and Kay, L.JJ., gave the decisions of that Court grcat weight with the commercial classes throughout the kingdom. His vigour and quickness were astonishing. In a few minutes he was able, from the Judge's notes, to master the outline of the evidence and the course that the case took at Nisi Prius. In one respect his influence as President of the Court was distinctly injurious. He may