Page:The Green Bag (1889–1914), Volume 13.pdf/428

 A Century of English Judicature.

A CENTURY OF

ENGLISH

391

JUDICATURE.

VI. BY VAN VECHTEN VKEDER. FROM THE COMMON LAW PROCEDURE ACT TO THE JUDICATURE ACT. IN any consideration of modern English judges Baron Bramwell must hold a conspicuous place. In mere length of service (thirty-six years) he is surpassed in modern times only by Baron Parke, whom he suc ceeded. He is an interesting link between the past and the present. Coming to the bar ьооп after Lord Tenterden apologetically made a few changes in the supposed per fections of the common law, he lived to frame the Common Law Procedure Act and to assist in the final overthrow of the old sys tem by the Judicature Act. He was doubt less a great lawyer and a learned judge, but bis marked personality exerted an influence not limited by learning—the breezy, invigor ating influence of sturdy common sense caustically applied to particular problems. In almost every respect he was a complete contrast to his prosaic predecessor, Baron Parke. He chose to mask a genial and generous nature under the garb of humorous cynicism, but in reality he was no cynic. Throughout his career he was one of the most popular as well as interesting of the judges. With a personality as vigorous as Maule's or Westbury's, he was one of the sturdiest, manliest and kindest of men.1 He did not always respect conventional tra ditions, and his plain directness of speech sometimes shocked sensitive people. He never hesitated to speak out what he thought. In the fearless discharge of his judicial functions he had great contempt for public opinion. Some observations in a charge 1 Upon his retirement he could recall onlyone unpleas antness. " Once a very old and dear friend of mine pro voked me so much and made me so angry that I actually threatened to commit him and I remember that on my asking him what he would have done if I had committed him, he answered promptly, '/Move for my own discharge.'"

having met with applause, he paused and then said quietly, "I recall those words—I must have been saying something foolish." He received his legal training in the strictest school of special pleading, and was familiar with all its mysteries. But he was not. like Parke, blind to the defects of the system. "I think," he said, "that some twenty or thirty years hence, when the pres ent generation of lawyers has ceased to exist, it will scarcely be believed that such a state of things did exist in a civilized country." Consequently, when public opinion was ripe for the overthrow in a large measure of the system, Bramwell was chosen to make the change. The work required a mind well trained in the old system, yet broad enough to see its defects. It was conceded that Bramwell and Willes did most of the work. The final overthrow of the old system by the Judicature Acts received his cordial support. He occasionally showed the effect of his overtraining in this species of dialectic in his fondness for framing dilemmas (see his opinion in the Liernina case, 13 App. Cas. il) and. more rarely, in the maintenance of metaphysical positions somewhat removed from common sense. One of the most conspicuous instances of this susceptibility to scholastic logic was his position that an action for malicious prose cution will not He against a corporation. (Abrath t-. North Eastern Ry., 11 App. Cas. 247.) A corporation, he maintained, is in capable of malice or motive. If the stock holders direct a malicious prosecution they are personally liable; while such action by the directors would be ultra vires. Ob viously if malicious prosecution could not be